<num value="30">TITLE 30</num><heading>ENVIRONMENTAL QUALITY</heading><part identifier="/us/state/tx/tac/t30/p1"><num value="1">PART 1</num><heading>TEXAS COMMISSION ON ENVIRONMENTAL QUALITY</heading><chapter identifier="/us/state/tx/tac/t30/p1/c1"><num value="1">CHAPTER 1</num><heading>PURPOSE OF RULES, GENERAL PROVISIONS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c1/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c1/sc/s1.1"><num value="1.1">§1.1</num><heading>Purpose of Rules</heading><content>The purpose of the commission's rules is to implement the powers and duties of the commission under the Texas Water Code, the Texas Health and Safety Code, and other laws, to establish the general policies of the commission, and to set forth procedures to be followed in agency proceedings. The rules should be interpreted to simplify procedure, avoid delay, save expense, and facilitate the administration and enforcement of state and other laws by the agency.</content><note type="source"><p>Source Note: The provisions of this §1.1 adopted to be effective June 6, 1996, 21 TexReg 4689.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c1/sc/s1.2"><num value="1.2">§1.2</num><heading>Construction of Rules</heading><content>Unless otherwise expressly provided for in these rules, the past, present, and future tense shall each include the other; the masculine, feminine, and neutral gender shall each include the other; and the singular and plural number shall each include the other.</content><note type="source"><p>Source Note: The provisions of this §1.2 adopted to be effective June 6, 1996, 21 TexReg 4689.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c1/sc/s1.3"><num value="1.3">§1.3</num><heading>Business Office and Mailing Address of the Agency</heading><content>(a) Agency offices. The agency's offices are located at Park 35, 12100 North Interstate 35, Austin. Effective September 1, 2002, the mailing address is: Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087.(b) Chief clerk's address. Effective September 1, 2002, the chief clerk's mailing address is: Office of Chief Clerk, Texas Commission on Environmental Quality, Mail Code 105, P.O. Box 13087, Austin, Texas 78711-3087. The chief clerk's office is located in Austin, Park 35, Building F, 12015 North Interstate 35.</content><note type="source"><p>Source Note: The provisions of this §1.3 adopted to be effective June 6, 1996, 21 TexReg 4689; amended to be effective June 30, 2002, 27 TexReg 5795.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c1/sc/s1.4"><num value="1.4">§1.4</num><heading>Seal of the Commission</heading><content>Effective September 1, 2002, the seal of the commission will bear the words "Texas Commission on Environmental Quality" encircling the oak and olive branches common to other official state seals.</content><note type="source"><p>Source Note: The provisions of this §1.4 adopted to be effective June 6, 1996, 21 TexReg 4689; amended to be effective June 30, 2002, 27 TexReg 5795.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c1/sc/s1.5"><num value="1.5">§1.5</num><heading>Records of the Agency</heading><content>(a) Subject to the limitations provided in the acts administered by the commission and the Public Information Act and copyright law, information collected, assembled, or maintained by the agency is public record open to inspection and copying during regular business hours.(b) If classified data of the federal government or confidential information in the records of the agency is the subject of an open records request under the Public Information Act, the executive director may submit a request to the Texas attorney general under Texas Government Code, §552.301, seeking a determination that the information is within an exception to the requirement to provide the information to the public.(c) Subject to the limitations of this section, the agency will provide copies of its records upon request. The agency may furnish copies at the rates published in its operating procedures, or may contract for the copies to be made at the expense of the person requesting them. The agency may charge the fees specified in Texas Government Code, §603.004 for the reproduction services listed in that section. The agency may waive a charge if the cost to the agency to collect the charge will exceed the amount of the charge. Copies may be certified by the executive director or the chief clerk.(d) Confidentiality of information.(1) A person submitting information to the agency may request that the information be designated as classified data of the federal government, or as confidential. When an applicant, a person making a claim of confidentiality under Texas Health and Safety Code, §382.041(a), or a person submitting a response to a bid solicitation submits classified data or confidential information, each claim of classified data or confidentiality must be made upon submission, and each page must be stamped "confidential." Confidential information may include information relating to trade secrets, secret processes, or economics of operation, or information that if made public would give any advantage to competitors or bidders. It may also include confidential information under 5 United States Code, §552(b)(4), and special rules cited in 40 Code of Federal Regulations, §§2.301-2.309; provided, however, that the composition of any defined waste subject to the jurisdiction of the commission may not be regarded as confidential information.(2) If the commission or executive director agrees with the designation, the agency will not provide the information for public inspection. If the agency receives an open records request for the information, the executive director will submit a request to the Texas attorney general as provided in subsection (b) of this section for a determination as to whether the information must be disclosed.(3) If the executive director does not agree with a claim of classified data or confidentiality, the person submitting the information will be notified. If the agency receives an open records request for the information, and the person submitting the information continues to assert a claim of confidentiality, the executive director may submit a request to the Texas attorney general as provided in subsection (b) of this section for a determination as to whether the information must be disclosed.(4) The name and address of an applicant or permittee will not be considered confidential.(5) For injection well applications, information which deals with the existence, absence, or levels of contaminants in drinking water will not be considered confidential.(6) This section shall not be construed so as to make confidential any effluent data, including effluent data in permits, draft permits, and permit applications.(7) For Texas pollutant discharge elimination system applications, information required for the permit application will not be considered confidential. This includes information submitted on the forms themselves and any attachments used to supply information required by the forms.(8) This section does not create privileges from discovery of documents in contested case hearings under Chapter 80 of this title (relating to Contested Case Hearings).</content><note type="source"><p>Source Note: The provisions of this §1.5 adopted to be effective June 6, 1996, 21 TexReg 4689; amended to be effective April 29, 1999, 24 TexReg 3201.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c1/sc/s1.6"><num value="1.6">§1.6</num><heading>Inscriptions on Commission Vehicles</heading><content>Vehicles under the care and custody of the commission and used primarily in the detection and investigation of criminal violations of state and federal environmental laws are exempt from bearing the inscription required by Transportation Code, §721.002. The purpose of this exemption is to is to increase the effectiveness of commission investigators in detecting and investigating criminal violations of state and federal environmental laws, thereby allowing investigative personnel to accomplish their tasks undetected and to provide a greater degree of safety for these investigators, the state property being used in the investigation, and a greater degree of case integrity.</content><note type="source"><p>Source Note: The provisions of this §1.6 adopted to be effective June 6, 1996, 21 TexReg 4689.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c1/sc/s1.7"><num value="1.7">§1.7</num><heading>Computation of Time</heading><content>Except as otherwise specifically provided by commission rules, in computing any period of time prescribed or allowed by commission regulation or orders or by any applicable statute, the period shall begin on the day after the act, event, or default in question and shall conclude on the last day of that designated period, unless it is a Saturday, Sunday, or legal holiday on which the office of the chief clerk is closed, in which event the period runs until the end of the next day that is neither a Saturday, Sunday, nor a legal holiday on which the office of the chief clerk is closed.</content><note type="source"><p>Source Note: The provisions of this §1.7 adopted to be effective June 6, 1996, 21 TexReg 4689; amended to be effective February 3, 2000, 25 TexReg 592.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c1/sc/s1.8"><num value="1.8">§1.8</num><heading>Initiation of Proceeding</heading><content>A person who wishes to initiate a proceeding at the agency should submit a written request to the executive director. The commission's rules set forth the requirements for the specific types of proceedings and the commission's or executive director's final action thereon.</content><note type="source"><p>Source Note: The provisions of this §1.8 adopted to be effective June 6, 1996, 21 TexReg 4689.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c1/sc/s1.9"><num value="1.9">§1.9</num><heading>Docket System</heading><content>The chief clerk shall assign a docket number to each matter scheduled for consideration during a commission meeting or contested case referred to SOAH.</content><note type="source"><p>Source Note: The provisions of this §1.9 adopted to be effective June 6, 1996, 21 TexReg 4689.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c1/sc/s1.10"><num value="1.10">§1.10</num><heading>Document Filing Procedures</heading><content>(a) All documents to be considered in a commission meeting or by judges in contested cases shall be filed with the chief clerk. Hearing requests and responses shall also be filed with the chief clerk.(b) If a docket number has been assigned, it should appear on the first page of all filed documents.(c) Documents shall be filed by United States mail, facsimile, hand delivery, or, when appropriate, the chief clerk's designated electronic filing system. If a person files a document by facsimile, he or she must file with the chief clerk the appropriate number of copies by mail or hand delivery within three days. The provision for electronic filing in this rule is intended to supplement other procedural rules of the commission that specify methods for filing but which do not include electronic filing as described herein.(d) The original or one copy of a document shall be filed, except for documents to be considered at a commission meeting. For documents, other than documents filed using the chief clerk's designated electronic filing system, to be considered at a commission meeting, seven copies or fewer, as prescribed by the chief clerk or general counsel, shall be filed. In addition to any other applicable requirements, persons using the chief clerk's designated electronic filing system shall comply with instructions as set forth by the chief clerk on the commission's website for electronically filed documents regarding number of copies.(e) For documents other than documents filed using the chief clerk's designated electronic filing system, the time of filing is upon receipt by the chief clerk as evidenced by the date stamp affixed to the document by the chief clerk, or as evidenced by the date stamp affixed to the document or envelope by the commission mail room, whichever is earlier. For documents filed using the chief clerk's designated electronic filing system, the time of filing is upon receipt by the electronic filing system, as evidenced by the system's confirmation email or the commission's integrated database.(f) The chief clerk shall accept all documents presented for filing. The chief clerk's acceptance is not a determination that a document meets filing deadlines or other requirements.(g) If the requirements of this section are not followed, the commission, or a judge in a State Office of Administrative Hearings (SOAH) proceeding, may choose not to consider the documents. In the absence of a waiver under subsection (h) of this section, the commission may choose not to consider documents filed within two days of a commission meeting.(h) The judge may waive one or more of the requirements of this section, or impose additional filing requirements in SOAH proceedings. The commission or general counsel may waive one or more of the requirements of this section, or impose additional filing requirements for commission meetings.(i) This section does not apply to offers of evidence during a hearing.</content><note type="source"><p>Source Note: The provisions of this §1.10 adopted to be effective June 6, 1996, 21 TexReg 4689; amended to be effective May 15, 1997, 22 TexReg 3990; amended to be effective November 13, 2008, 33 TexReg 9081; amended to be effective November 11, 2010, 35 TexReg 9904.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c1/sc/s1.11"><num value="1.11">§1.11</num><heading>Service on Judge, Parties, and Interested Persons</heading><content>(a) For responses and replies to responses concerning hearing requests filed under Chapter 55 of this title (relating to Requests for Reconsideration and Contested Case Hearings; Public Comment), copies of all documents filed with the chief clerk shall be served on the executive director, the public interest counsel, the applicant, and any persons filing hearing requests, no later than the day of filing.(b) For contested case hearings referred to State Office of Administrative Hearings (SOAH), copies of all documents filed with the chief clerk shall be served on the judge and all parties or their representatives no later than the day of filing.(c) All documents filed and served under these rules, except as otherwise expressly provided in these rules, may be served by delivering a copy to the party to be served, or the party's duly authorized agent or attorney of record, as the case may be, either in person or by agent or by courier-receipted delivery or by mail, to the party's last known address, or by telephonic document transfer to the recipient's current telecopier number, or by such other manner as the commission or judge in their discretion may direct.(d) Except as provided by Texas Government Code, §2001.142 regarding notification of a decision or order in a contested case, service by mail is complete three days after deposit of the document, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service. Service by courier-receipted delivery is complete upon the courier taking possession. Service by telephonic document transfer after 5:00 p.m. local time of the recipient shall be deemed served on the following day. Service by telephonic document transfer must be followed by serving an extra copy in person, by mail, or by carrier receipted delivery within one day. Judges may impose different service requirements in SOAH proceedings.(e) Except as provided by Texas Government Code, §2001.142 regarding notification of a decision or order in a contested case, whenever a party has the right or is required to do some act within a prescribed period after the service of a document upon the party and the document is served by mail or by telephonic document transfer, three days shall be added to the prescribed period. Three days will not be added when documents are filed for consideration in a commission meeting.(f) The party or attorney of record shall certify compliance with this rule in writing over signature and on the filed instrument. A certificate by a party or an attorney of record, or the return of an officer, or the affidavit of any person showing service of a document shall be prima facie evidence of the fact of service.(g) Nothing herein shall preclude any party from offering proof that the notice or instrument was not received, or, if service was by mail, that it was not received within three days from the date of deposit in a post office or official depository under the care and custody of the United States Postal Service, and upon so finding, the commission or judge may extend the time for taking the action required of such party or grant such other relief as they deem just. The provisions hereof relating to the method of service of notice are cumulative of all other methods of service prescribed by these rules.</content><note type="source"><p>Source Note: The provisions of this §1.11 adopted to be effective June 6, 1996, 21 TexReg 4689; amended to be effective February 3, 2000, 25 TexReg 592; amended to be effective December 31, 2015, 40 TexReg 9641.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c1/sc/s1.12"><num value="1.12">§1.12</num><heading>Summary for Public Notices</heading><content>Each public notice required by law or rule to be issued or published by the commission, or by a person under the jurisdiction of the commission, shall include at the beginning of the notice a succinct summary statement of the subject of the notice. The summary statement shall be designed to inform the reader of the subject matter of the notice without having to read the entire text of the notice. The summary statement may not be grounds for challenging the validity of the proposed action for which notice was given.</content><note type="source"><p>Source Note: The provisions of this §1.12 adopted to be effective August 15, 2002, 27 TexReg 7131.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c3"><num value="3">CHAPTER 3</num><heading>DEFINITIONS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c3/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c3/sc/s3.1"><num value="3.1">§3.1</num><heading>Applicability</heading><content>The words and terms listed in this chapter, when used in commission rules, shall have the meanings described in this chapter unless the context clearly indicates otherwise. However, a definition in this chapter shall not apply to another chapter of the commission's rules if the word or term is defined in that chapter.</content><note type="source"><p>Source Note: The provisions of this §3.1 adopted to be effective June 6, 1996, 21 TexReg 4697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c3/sc/s3.2"><num value="3.2">§3.2</num><heading>Definitions</heading><content>The following words and terms, when used in this part, shall have the following meanings, unless the context clearly indicates otherwise.(1) Agency--The commission, executive director, and their staffs.(2) APA--The Texas Administrative Procedure Act, Texas Government Code, Chapter 2001.(3) Applicant--A person who submits an application to the commission.(4) Application--A petition or written request to the commission for an order, permit, license, registration, standard exemption, or other approval.(5) CERCLA (Superfund)--Comprehensive Environmental Response, Compensation, and Liability Act, 42 United States Code (USC), §§9601 - 9675 (1980, as amended).(6) Chairman--The chairman of the commission.(7) Chief clerk--The chief clerk of the commission or any authorized individual designated by the chief clerk to act in his or her place.(8) Commission--As of September 1, 2002, the agency's name shall be the Texas Commission on Environmental Quality. In these rules, the term "commission" means the commissioners acting in their official capacity.(9) Commissioner--A member of the commission.(10) Contested case--A proceeding subject to the contested case requirements of the APA.(11) CWA--Clean Water Act, Federal Water Pollution Control Act, 33 USC, §§1251 - 1387 (1977, as amended).(12) Enforcement action--An action, initiated by the executive director, seeking an enforcement order.(13) Enforcement order--Any commission order enforcing or directing compliance with any provisions; whether of statutes, rules, regulations, permits or licenses, or orders; which the commission is entitled by law to enforce or with which the commission is entitled by law to compel compliance.(14) EPA--The United States Environmental Protection Agency, the Administrator of the EPA, or his/her designee.(15) EPCRA--The Emergency Planning and Community Right-To-Know Act, 42 USC, §§11001 - 11050 (1986).(16) Executive director The executive director of the commission, or any authorized individual designated to act for the executive director.(17) FCAA--The Federal Clean Air Act, 42 USC, §§7401 - 7671q (1970, as amended).(18) FIFRA--The Federal Insecticide, Fungicide, and Rodenticide Act, 7 USC, §§135 - 136y (1972, as amended).(19) General counsel--The general counsel of the commission, or any authorized individual designated by the general counsel to act in his or her place.(20) Judge A SOAH administrative law judge.(21) NEPA--The National Environmental Policy Act, 42 USC, §§4321 - 4370e (1969, as amended).(22) Open Meetings Act--Texas Open Meetings Act, Texas Government Code, Chapter 551.(23) Party--Each person named or admitted as a party in a contested case.(24) Permit--Written permission from the commission, including a license or other authorization, to engage in a business or occupation, to perform an act (such as to build, install, modify, or operate a facility), or to engage in a transaction, which would be unlawful absent such permission.(25) Person--An individual, corporation, organization, government or governmental subdivision or agency, business trust, partnership, association, or any other legal entity.(26) Pleadings--Written allegations filed by parties concerning their respective claims, such as applications, protests, complaints, claims, petitions, executive director preliminary reports, answers, motions, and other similar documents, including those submitted by the executive director and the public interest counsel.(27) PPA--Pollution Prevention Act, 42 USC, §§13101 - 13109 (1990).(28) Protestant--Any person opposing, in whole or in part, an application.(29) Public Information Act--Texas Public Information Act, Texas Government Code, Chapter 552.(30) Public interest counsel--The public interest counsel of the commission, or any authorized individual designated by the public interest counsel to act in his or her place.(31) RCRA--The Resource Conservation and Recovery Act, 42 USC, §§6901 - 6991i (1976, as amended).(32) SARA--Superfund Amendments and Reauthorization Act, Public Law Number 99-499, 100 Stat. 1613 (codified as amended in scattered sections of 10 USC, 26 USC, and 42 USC) (1986).(33) SDWA--Safe Drinking Water Act, 42 USC, §§300f - 300j-26 (1974, as amended).(34) SOAH--The State Office of Administrative Hearings.(35) TCAA--The Texas Clean Air Act, Texas Health and Safety Code (THSC), Chapter 382.(36) TRCA--The Texas Radiation Control Act, THSC, Chapter 401.(37) TSCA--Toxic Substances Control Act, 15 USC, §§2601 - 2692 (1976, as amended).(38) TSWDA--The Texas Solid Waste Disposal Act, THSC, Chapter 361.</content><note type="source"><p>Source Note: The provisions of this §3.2 adopted to be effective June 6, 1996, 21 TexReg 4697; amended to be effective July 16, 1997, 22 TexReg 6444; amended to be effective April 29, 1999, 24 TexReg 3203; amended to be effective June 30, 2002, 27 TexReg 5796.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c5"><num value="5">CHAPTER 5</num><heading>ADVISORY COMMITTEES AND GROUPS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c5/scA"><num value="A">SUBCHAPTER A</num><heading>PURPOSE</heading><section identifier="/us/state/tx/tac/t30/p1/c5/scA/s5.1"><num value="5.1">§5.1</num><heading>Purpose</heading><content>This chapter governs procedures for the creation and operation of advisory committees and groups.</content><note type="source"><p>Source Note: The provisions of this §5.1 adopted to be effective June 6, 1996, 21 TexReg 4705; amended to be effective October 8, 2002, 27 TexReg 9350.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c5/scA/s5.2"><num value="5.2">§5.2</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Advisory committee--As used in this chapter, a committee, council, commission, task force, or other entity, other than a state agency, created by the commission or by state law, that has as its primary function the provision of advice to the commission. An advisory group created by the executive director is not an advisory committee.(2) Balanced representation--Membership that represents a diversity of viewpoints on issues to be discussed including: factors such as geography, socioeconomic status, ethnicity, and size and type of businesses and governments; and membership in classes such as environmental groups, trade groups, consumer or public interest groups, industries or occupations, and consumers of services provided by the commission or by industries or occupations.(3) Minutes--Notes or summary covering points to be remembered from a meeting, not a detailed description or verbatim transcript of the discussion.</content><note type="source"><p>Source Note: The provisions of this §5.2 adopted to be effective June 6, 1996, 21 TexReg 4705; amended to be effective October 8, 2002, 27 TexReg 9350.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c5/scB"><num value="B">SUBCHAPTER B</num><heading>ADVISORY COMMITTEES</heading><section identifier="/us/state/tx/tac/t30/p1/c5/scB/s5.3"><num value="5.3">§5.3</num><heading>Creation and Duration of Advisory Committees Created by the Commission</heading><content>Except as otherwise provided by law, advisory committees created by the commission shall be created by commission resolution. An advisory committee shall be automatically abolished in accordance with Texas Government Code, §2110.008(b), as amended, unless the advisory committee is required to remain in effect without abolishment under state or federal law, or a different date is designated under §5.15 of this chapter (relating to Duration of Advisory Committees).</content><note type="source"><p>Source Note: The provisions of this §5.3 adopted to be effective June 6, 1996, 21 TexReg 4705; amended to be effective October 8, 2002, 27 TexReg 9350; amended to be effective July 6, 2023, 48 TexReg 3506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c5/scB/s5.4"><num value="5.4">§5.4</num><heading>Purpose and Duties of Advisory Committees</heading><content>The purpose of an advisory committee shall be to give the commission the benefit of the members' collective business, environmental, and technical expertise and experience with respect to matters within the commission's jurisdiction. An advisory committee's sole duty is to advise the commission. An advisory committee has no executive or administrative powers or duties with respect to the operation of the commission, and all such powers and duties rest solely with the commission. The specific purposes and tasks of an advisory committee subject to this subchapter shall be identified by commission resolution.</content><note type="source"><p>Source Note: The provisions of this §5.4 adopted to be effective June 6, 1996, 21 TexReg 4705; amended to be effective October 8, 2002, 27 TexReg 9350.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c5/scB/s5.5"><num value="5.5">§5.5</num><heading>Composition of Advisory Committees</heading><content>(a) The composition of advisory committees created by the commission shall comply with the requirements of Texas Government Code, Chapter 2110, as amended.(b) The commission shall make reasonable attempts to provide balanced representation on all advisory committees. A rule or other action may not be challenged because of the composition of an advisory committee. This section does not apply to an advisory committee to the extent that:(1) another state law specifically states that Texas Government Code, Chapter 2110, as amended, does not apply; or(2) a federal law or regulation:(A) imposes an unconditional requirement that irreconcilably conflicts with the requirements of Texas Government Code, Chapter 2110, as amended; or(B) imposes a condition on the state's eligibility to receive money from the federal government that irreconcilably conflicts with Texas Government Code, Chapter 2110, as amended.</content><note type="source"><p>Source Note: The provisions of this §5.5 adopted to be effective June 6, 1996, 21 TexReg 4705; amended to be effective April 29, 1999, 24 TexReg 3203; amended to be effective October 8, 2002, 27 TexReg 9350.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c5/scB/s5.6"><num value="5.6">§5.6</num><heading>Membership Terms</heading><content>Except as otherwise provided by law, advisory committee members may serve two- or four-year terms, as resolved by the commission. Should the commission resolve that the members of a committee serve four-year terms, these terms shall initially be staggered, with one half of the members (rounded down should one half of the number of members not be a whole number) serving two-year terms, and one half (rounded up should one half of the number of members not be a whole number) serving four-year terms, and the terms for each member decided by drawing lots in the first committee meeting following the establishment of the membership of the committee by the commission.</content><note type="source"><p>Source Note: The provisions of this §5.6 adopted to be effective June 6, 1996, 21 TexReg 4705.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c5/scB/s5.7"><num value="5.7">§5.7</num><heading>Membership</heading><content>Except as otherwise provided by law, all members of advisory committees are appointed by and serve at the pleasure of the commission. If a member resigns, dies, becomes incapacitated, is removed by the commission, otherwise vacates his or her position, or becomes ineligible prior to the end of his or her term, the commission shall appoint a replacement who shall serve the remainder of the unexpired term.</content><note type="source"><p>Source Note: The provisions of this §5.7 adopted to be effective June 6, 1996, 21 TexReg 4705; amended to be effective October 8, 2002, 27 TexReg 9350.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c5/scB/s5.8"><num value="5.8">§5.8</num><heading>Attendance</heading><content>A record of attendance at each meeting of advisory committees shall be made. Except as otherwise provided by law, if a member of an advisory committee misses three consecutive regularly scheduled meetings or more than half of all the regularly scheduled meetings in a one-year period, that member automatically vacates his or her position on the advisory committee and the commission shall make an appointment to fill the remainder of the unexpired term of the vacancy.</content><note type="source"><p>Source Note: The provisions of this §5.8 adopted to be effective June 6, 1996, 21 TexReg 4705.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c5/scB/s5.9"><num value="5.9">§5.9</num><heading>Reimbursement</heading><content>Members of advisory committees shall not be reimbursed for expenses unless the commission expressly authorizes reimbursement by resolution. The commission may, in its discretion, reimburse the expenses of members of any duly authorized subcommittee of an advisory committee.</content><note type="source"><p>Source Note: The provisions of this §5.9 adopted to be effective June 6, 1996, 21 TexReg 4705.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c5/scB/s5.10"><num value="5.10">§5.10</num><heading>Presiding Officer</heading><content>Except as otherwise provided by law, each committee shall elect from its members a presiding officer, who shall report the committee's advice and attendance in writing to the commission. The commission may, at its discretion, appoint other officers of advisory committees. Committees may elect other officers at their pleasure.</content><note type="source"><p>Source Note: The provisions of this §5.10 adopted to be effective June 6, 1996, 21 TexReg 4705; amended to be effective October 8, 2002, 27 TexReg 9350.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c5/scB/s5.11"><num value="5.11">§5.11</num><heading>Manner of Reporting</heading><content>Advisory committees shall report in writing to the commission a minimum of once per year, unless otherwise directed by the commission. The report provided by an advisory committee shall be sufficient to allow the commission to properly evaluate the committee's work, usefulness, and the costs related to the committee's existence.</content><note type="source"><p>Source Note: The provisions of this §5.11 adopted to be effective June 6, 1996, 21 TexReg 4705.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c5/scB/s5.12"><num value="5.12">§5.12</num><heading>Subcommittees</heading><content>Advisory committees may organize themselves into subcommittees. One member of each subcommittee shall serve as the chairperson of that subcommittee. Subcommittee chairs shall make written reports regarding their subcommittee's work to the presiding officer of the advisory committee. With the commission's consent, a subcommittee of an advisory committee may include members who are not members of the advisory committee, but must include at least one member of the advisory committee.</content><note type="source"><p>Source Note: The provisions of this §5.12 adopted to be effective June 6, 1996, 21 TexReg 4705.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c5/scB/s5.13"><num value="5.13">§5.13</num><heading>Meetings</heading><content>Advisory committees shall meet at the call of the presiding officer or the commission. All advisory committee and subcommittee meetings, except meetings for the purpose of developing or reviewing licensing examination questions or related materials, shall be open to the public. Meetings for the purpose of developing or reviewing licensing examination questions or related materials may be closed to the public to preclude compromise of the examination questions or related materials.</content><note type="source"><p>Source Note: The provisions of this §5.13 adopted to be effective June 6, 1996, 21 TexReg 4705; amended to be effective March 13, 2003, 28 TexReg 2090.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c5/scB/s5.14"><num value="5.14">§5.14</num><heading>Monitoring of Advisory Committees and Records</heading><content>(a) The commission shall monitor the composition and activities of advisory committees.(b) Agency staff shall record and maintain the minutes of each advisory committee and subcommittee meeting. The staff shall maintain a record of actions taken and shall distribute copies of approved minutes and other committee documents to the commission and to advisory committee members.(c) Minutes kept for advisory committee meetings and reports required under §5.11 of this title (relating to Manner of Reporting) shall be maintained in a form and location that is easily accessible to the public, including making the information available on the commission's website.</content><note type="source"><p>Source Note: The provisions of this §5.14 adopted to be effective June 6, 1996, 21 TexReg 4705; amended to be effective October 8, 2002, 27 TexReg 9350.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c5/scB/s5.15"><num value="5.15">§5.15</num><heading>Duration of Advisory Committees</heading><content>(a) The advisory committees listed in section (b) are renewed with the expiration dates noted for each advisory committee and continue to be subject to the rules in this subchapter.(b) List of advisory committees renewed by rule:(1) Brazos Watermaster Advisory Committee, authorized by Tex. Water Code §11.4531, expires on December 31, 2032.(2) Concho River Watermaster Advisory Committee, authorized by Tex. Water Code §11.557, expires on December 31, 2032.(3) Irrigator Advisory Council, authorized by Tex. Occ. Code ch. 1903, Subch. D, expires on December 31, 2032.(4) Municipal Solid Waste Management and Resource Recovery Advisory Council, authorized by Tex. Health & Safety Code §§363.041-046, expires on December 31, 2032.(5) Rio Grande Watermaster Advisory Committee, authorized by Tex. Water Code §11.3261, expires on December 31, 2032.(6) South Texas Watermaster Advisory committee, authorized by Tex. Water Code §11.3261, expires on December 31, 2032.(7) Water Utility Operating Licensing Advisory Committee, authorized by Tex. Water Code §5.107, expires on December 31, 2032.</content><note type="source"><p>Source Note: The provisions of this §5.15 adopted to be effective July 6, 2023, 48 TexReg 3506.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c5/scC"><num value="C">SUBCHAPTER C</num><heading>ADVISORY GROUPS</heading><section identifier="/us/state/tx/tac/t30/p1/c5/scC/s5.20"><num value="5.20">§5.20</num><heading>Advisory Groups</heading><content>The executive director may create and consult with advisory groups.</content><note type="source"><p>Source Note: The provisions of this §5.20 adopted to be effective October 8, 2002, 27 TexReg 9350.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c5/scC/s5.21"><num value="5.21">§5.21</num><heading>Formation of Advisory Groups</heading><content>The executive director shall identify affected groups of interested persons for advisory groups and shall make reasonable attempts to have balanced representation on all advisory groups.</content><note type="source"><p>Source Note: The provisions of this §5.21 adopted to be effective October 8, 2002, 27 TexReg 9350.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c7"><num value="7">CHAPTER 7</num><heading>MEMORANDA OF UNDERSTANDING</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c7/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.102"><num value="7.102">§7.102</num><heading>Adoption of Memoranda of Understanding between the Texas State Soil and Water Conservation Board and the Texas Commission on Environmental Quality</heading><content>The regulations of this section adopt by reference 31 TAC §523.5 (relating to Memorandum of Understanding between the Texas State Soil and Water Conservation Board and the Texas Commission on Environmental Quality) as adopted and published in the February 19, 2016, issue of the Texas Register (41 TexReg 1253).</content><note type="source"><p>Source Note: The provisions of this §7.102 adopted to be effective June 9, 1997, 22 TexReg 4575; amended to be effective November 10, 2016, 41 TexReg 8825.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.103"><num value="7.103">§7.103</num><heading>Memorandum of Understanding (MOU) between the Texas Commission on Environmental Quality (TCEQ) and the Texas Parks and Wildlife Department (TPWD) Regarding the Regulation of Aquaculture</heading><content>(a) Need for agreement.(1) The Texas Commission on Environmental Quality (TCEQ) and Texas Parks and Wildlife Department (TPWD) seek to ensure that regulation of aquaculture is conducted in a manner that is both collaborative and responsible.(2) The TCEQ and TPWD are concerned about issues relating to the raising of non-native aquatic species and their potential for escape into natural ecosystems, including the introduction of disease into natural ecosystems.(3) The TCEQ and TPWD are concerned about the quality of wastewater discharges from aquaculture facilities and their effects on receiving waters in reservoirs, streams, bays, and estuaries.(4) The TCEQ and TPWD seek to implement an interagency review procedure for applications requesting authorization to discharge wastewater from aquaculture facilities.(5) The TCEQ and TPWD seek to implement an effective system by which coordination and collaboration can be achieved to expedite enforcement actions in response to discharges from aquaculture facilities that are found to contain contagious disease that may impact state waters.(6) Texas Water Code, §5.104, authorizes the TCEQ to enter into an MOU with any other state agency.(7) Texas Agriculture Code, §134.031, directs the TCEQ and TPWD to enter into an MOU for the regulation of matters relating to aquaculture.(8) It is the intention of this MOU to provide a formal mechanism by which the TPWD may review and provide feedback on aquaculture issues that are subject to regulation by the TCEQ and that have the potential to affect natural resources and the regulation of aquaculture within the jurisdiction of the TPWD. This exchange of information would assist the TCEQ in making environmentally sound decisions and would improve coordination between the TCEQ and TPWD.(b) Definitions. The following words and terms, when used in this section, shall have the following meanings.(1) Aquaculture--The business of producing or rearing aquatic species (fish, crustaceans, mollusks, or any other organisms, excluding aquatic plants and algae, living in either fresh or marine waters) utilizing ponds, lakes, cages, fabricated tanks and raceways, or other similar structures.(2) Application--A request submitted by an aquaculture facility to the TCEQ for authorization to discharge under an individual permit or a Notice of Intent (NOI) to seek authorization under a general permit.(c) Responsibilities.(1) The responsibilities of the TCEQ relate primarily to its role as the natural resource agency with primary responsibility over conservation of natural resources and the protection of the environment, under Texas Water Code, §5.012.(A) The TCEQ has general jurisdiction over the state's water quality program including issuance of wastewater discharge permits, water quality planning, and enforcement of water quality rules, standards, orders, and permits, under Texas Water Code, §5.013.(B) The TCEQ seeks to maintain the quality of water in the state consistent with public health and enjoyment, the propagation and protection of terrestrial and aquatic life, the operation of existing industries, and the economic development of the state, and to require the use of all reasonable methods to implement this policy.(C) The TCEQ is responsible for review of wastewater applications and issuance of wastewater discharge permits.(2) The responsibilities of the TPWD relate primarily to its functions as a natural resource agency, including its resource protection functions, as designated by the Texas Parks and Wildlife Code, §12.001 and §12.0011.(A) The TPWD is the state agency with primary responsibility for protecting the state's fish and wildlife resources.(B) The TPWD provides recommendations that will protect fish and wildlife resources to local, state, and federal agencies that approve, permit, license, or construct developmental projects.(C) The TPWD provides information on fish and wildlife resources to any local, state, and federal agencies or private organizations that make decisions affecting those resources.(D) The TPWD regulates the taking, possession, and conservation of all kinds of marine life and other aquatic life.(E) The TPWD regulates the introduction of fish, shellfish, and aquatic plants into public water, under Texas Parks and Wildlife Code, §66.015(b).(F) The TPWD regulates the importation, possession, and placing into state water of harmful or potentially harmful exotic species of fish, shellfish, or aquatic plants, under Texas Parks and Wildlife Code, §66.007(a), and is responsible for review of applications and subsequent issuance of permits relating to these activities(d) Coordination procedures for wastewater discharge applications and permits.(1) Coordination procedures for the Aquaculture General Permit Number TXG130000 and associated NOIs.(A) During renewal or amendment of the Aquaculture General Permit, the TCEQ will provide the initial draft permit to the TPWD for review and comment prior to submitting the draft to EPA for review and approval.(i) Within 45 days of the date of receipt of the initial draft permit, the TPWD will complete its initial assessment, and by letter shall provide the TCEQ with formal written recommendations designed to protect fish and wildlife resources or indicate that it has no comments.(ii) If the TCEQ does not receive formal written comments from the TPWD within 45 days of the date of receipt of the initial draft permit, the TCEQ will conclude that there are no comments and continue processing of the general permit renewal or amendment.(iii) Formal written comments received from the TPWD will be considered by the TCEQ in developing the final draft permit. The TPWD's comments will be evaluated in conjunction with all other applicable factors and will be incorporated by the TCEQ whenever it is consistent with the TCEQ's responsibilities. In accordance with the responsibilities of the TCEQ as described in subsection (c)(1) of this section, the TCEQ reserves the right to determine the requirements of the final draft permit. Concurrent with submission of the final draft permit to EPA, the TCEQ will provide a copy of the final draft permit to the TPWD.(B) The TCEQ will provide copies of all NOIs to the TPWD within 14 days of the date of receipt.(i) Within 45 days of the date of receipt of the NOI by the TPWD, the TPWD will complete its initial assessment, and by letter shall provide the TCEQ with formal written recommendations designed to protect fish and wildlife resources; indicate that it has no comments; or notify the TCEQ that it has requested additional information from the applicant. If TPWD requires additional information to make its evaluation, then the TPWD may request such additional information from the applicant within 45 days of the date of receipt of the NOI.(ii) Except as provided by paragraph (3)(B) of this subsection, if the TCEQ does not receive a response from the TPWD within 45 days of TPWD receipt of the NOI, the TCEQ will conclude that there are no comments and continue processing of the application.(iii) Formal written comments received from the TPWD will be considered by the TCEQ in determining whether to grant authorization under the general permit or require the applicant to seek authorization under an individual permit. The TPWD's comments will be evaluated in conjunction with all other applicable factors consistent with the TCEQ's responsibilities. In accordance with the responsibilities of the TCEQ as described in subsection (c)(1) of this section, the TCEQ reserves the right to determine the final disposition of the NOI.(2) Coordination procedures for individual permit applications.(A) The TCEQ will provide to the TPWD a copy of each individual permit application file received which requests authorization to discharge wastewater from aquaculture facilities within 14 days of the TCEQ administrative review completion. The application file shall include a copy of the application and any comments, memoranda, letters, or other information incorporated in the application file following date of application receipt so that the TPWD may complete an initial assessment of the proposed operation.(B) Within 45 days of the date of receipt of the permit application file, the TPWD will complete its initial assessment, and by letter shall provide the TCEQ with formal written recommendations designed to protect fish and wildlife resources; indicate that it has no comments; or notify the TCEQ that it has requested additional information from the applicant. If TPWD requires additional information to make its evaluation, then the TPWD may request such additional information from the applicant within 45 days of the date of receipt of the permit application file.(C) Except as provided by paragraph (3)(B) of this subsection, if the TCEQ does not receive a response from the TPWD within 45 days of the TPWD receipt of the permit application file, the TCEQ will conclude that there are no comments and continue processing of the application.(D) Formal written comments received from the TPWD will be considered by the TCEQ in developing the final draft permit. The TPWD's comments will be evaluated in conjunction with all other applicable factors and will be incorporated by the TCEQ whenever it is consistent with the TCEQ's responsibilities. In accordance with the responsibilities of the TCEQ as described in subsection (c)(1) of this section, the TCEQ reserves the right to determine the requirements of the final draft permit. Upon making a preliminary recommendation regarding an application, the TCEQ will provide a response to the TPWD that contains a copy of the final draft permit and documentation providing an explanation on why any of the TPWD's comments were not incorporated.(3) Coordination procedures applicable to all applications.(A) The scope of review by the TPWD may include, but is not limited to: consideration of especially sensitive receiving water conditions (aquatic habitat); impacts of the discharge on substrate (scouring, sedimentation) and water transparency; alteration of receiving water flow characteristics; existing or attainable biological and recreational uses; discharge rate and volume; and the likelihood of disease transmission. Comments may be addressed directly to the applicant by the TPWD.(B) If the TPWD requests additional information from the applicant, the TPWD will request that the applicant provide a copy of the information to the TCEQ. If the applicant does not provide the additional information to the TPWD within 30 days of a request, the TCEQ will determine whether it is appropriate to either suspend processing the application or return it to the applicant. Upon receipt of additional information from the applicant, the TPWD will have 30 days to complete its review and either make final recommendations to the TCEQ or indicate that it has no comments. If formal written comments are not received from the TPWD within 30 days of receipt of the additional information, the TCEQ will conclude that there are no comments and continue processing of the application.(C) The TCEQ will consider guidelines developed by the TPWD with input from the TCEQ and stakeholders identifying sensitive aquatic habitat within the coastal zone when reviewing wastewater discharge applications for new aquaculture facilities or expansion of existing facilities in the coastal zone.(D) The TCEQ and TPWD will strive to provide each other notification of public meetings and contested case hearings that relate to aquaculture applications.(e) Other coordination activities.(1) The TPWD shall, within 120 days of the date of adoption of this MOU, review the wastewater discharge application forms and provide proposed changes that are necessary to obtain relevant information for the TPWD's review. The TCEQ will solicit feedback from the TPWD each time the TCEQ revises the forms related to aquaculture facilities.(2) A new exotic species permit will not be issued by the TPWD to any aquaculture facility that proposes to discharge wastewater until a TCEQ wastewater discharge permit or other authorization has been issued or it is determined that the facility is exempted from such requirements.(3) An interagency work group will be formed, whose function will be to coordinate on matters related to aquaculture to aid in ensuring that proposed wastewater discharges will not adversely affect bays, estuaries, or other water in the state. This work group will meet at least annually to address aquaculture issues relating to water quality, fish and wildlife resources, and receiving stream habitat and uses. This work group will serve to strengthen coordination between the TCEQ and TPWD related to the aquaculture industry and provide a conduit for shared information. The work group shall be composed of members of each agency and staffed at levels which are mutually agreeable as adequate to accomplish the stated goals. Each agency shall designate a primary contact person for this group and notify the other agency of any changes to the primary contact person.(4) The TCEQ and TPWD will coordinate studies related to applications that request authorizations for the discharge wastewater. This may include on-site visits, receiving water assessments, sample collection, data analysis and related activities. Notification of these activities will be provided at least five days prior to the activity or as soon as is practicable. The TPWD will notify the appropriate TCEQ regional office and the Wastewater Permitting Section Manager. The TCEQ will notify the TPWD Water Quality Program.(5) The TCEQ and TPWD will strive to coordinate responses to emergency conditions, investigation of unauthorized wastewater discharges, and compliance inspections of aquaculture facilities for wastewater discharges. The TCEQ and TPWD will provide notice to each other at least five days prior to conducting a site inspection related to wastewater discharges, so as to allow the other agency to participate if desired. The TPWD will notify the appropriate TCEQ regional office and the TCEQ will notify the TPWD Water Quality Program.(6) The TCEQ and TPWD will continue to develop and provide to applicants, permit conditions and, as appropriate, guidance related to disease, quarantine conditions, and emergency plans.(f) General conditions.(1) The term of this MOU shall be from the effective date until amendment or termination of this agreement. Any amendment to the MOU shall be made by mutual agreement of the parties.(2) Each party shall adopt the MOU by rule, including subsequent amendments. This MOU, and any subsequent amendment, shall become effective on the effective date of the rule.(3) Reservation of rights. Each agency has and reserves the right to take whatever actions necessary to pursue or preserve any legal remedies available to that agency, and nothing in this MOU is intended to waive or foreclose any such right.</content><note type="source"><p>Source Note: The provisions of this §7.103 adopted to be effective January 9, 2001, 26 TexReg 204; amended to be effective May 19, 2022, 47 TexReg 2864.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.104"><num value="7.104">§7.104</num><heading>Memorandum of Understanding between the Texas Water Development Board and the Texas Natural Resource Conservation Commission</heading><content>The commission adopts by reference the rules of the Texas Water Development Board in 31 TAC §371.5 (Memorandum of Understanding between Texas Water Development Board and Texas Natural Resource Conservation Commission).</content><note type="source"><p>Source Note: The provisions of this §7.104 adopted to be effective July 22, 1997, 22 TexReg 6445.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.110"><num value="7.110">§7.110</num><heading>Memorandum of Understanding between the Texas Natural Resource Conservation Commission (commission) and the Texas Department of Public Safety (department)</heading><content>(a) Need for agreement.(1) Executive Order GWB 96-1, authorized by Senate Bill 178 (Chapter 34, Acts of the 74th Legislature, Regular Session, 1995), directs the commission to enter into an agreement with the department to provide for the establishment of an Inspection/Maintenance (I/M) program in accordance with Executive Order GWB 96-1, the Texas Clean Air Act (TCAA), and federal regulations.(2) The commission and the department have agreed to develop this Memorandum of Understanding between these agencies. This agreement will supplement any previous Memoranda of Understanding between these two agencies or including these two agencies as participating parties.(3) The agencies entering into this Memorandum of Understanding are establishing a formal mechanism by which they will coordinate I/M program planning, implementation, oversight, evaluation, and areas of primary responsibility. This Memorandum of Understanding also provides for a system by which information developed by the commission and the department may be exchanged for the benefit of the I/M program.(b) Definitions. Unless specifically defined in the TCAA, 37 Texas Administrative Code §23.93 concerning Vehicle Emissions Inspection Requirements, the department "Rules and Regulations Manual for Official Vehicle Inspection Stations and Certified Inspectors," §114.3 of this title (relating to Vehicle Emissions Inspection Requirements), or in other rules of the commission or the department, the terms used in this Memorandum of Understanding shall have the meanings commonly ascribed to them in the fields of air pollution control and vehicle inspection unless the context clearly indicates otherwise.(c) Responsibilities.(1) The commission:(A) is the state agency responsible for conservation of natural resources;(B) is the principal state authority on matters relating to the state's air quality; and(C) shall have authority to make rules for the I/M program on matters that relate directly to:(i) emissions reduction credits awarded by the United States Environmental Protection Agency (EPA);(ii) computer modeling of the emissions reduction credits available to the Texas I/M Program;(iii) data collection efforts required by 40 CFR Part 51 or the Texas I/M State Implementation Plan (SIP); and(iv) responsibilities of the commission identified in this agreement.(2) The department:(A) is the state agency responsible for the safety of the motoring public;(B) is the principal authority on matters relating to testing motor vehicles for safety and emissions compliance; and(C) shall have authority to make rules for the implementation and operation of the I/M program.(3) Both agencies agree to comply with the provisions of the Texas I/M SIP, including the most recent proposed revision signed by the Governor and submitted to the EPA on June 21, 1996, and the provisions of Executive Order GWB 96-1.(4) It is neither the department's nor the commission's intention to direct the other agency's activities by rule or otherwise.(d) Activities.(1) In consultation with the department, the commission will:(A) develop and design an I/M program for the State of Texas that satisfies the requirements of the Federal Clean Air Act and 40 CFR Part 51, Executive Order GWB 96-1 and other relevant legislation, including any amendments made to these requirements;(B) develop, update, and amend the Texas I/M SIP and program rules as necessary to support state and federal requirements;(C) evaluate the Texas I/M Program;(D) develop criteria for emissions testing equipment required for use in emissions testing facilities;(E) serve as the state's liaison with the EPA;(F) provide the department with timely reports and data analysis as requested; and(G) set fees for the Texas I/M Program by rule.(2) In consultation with the commission, the department will:(A) implement the Texas Motorist's Choice Program, including the adoption of necessary rules and procedures;(B) actively enforce the Texas Motorist's Choice Program;(C) serve as the state's liaison with participating emissions testing facilities;(D) license emissions testing facilities;(E) provide the commission with timely reports and data analysis as requested;(F) implement Repair Effectiveness provisions of the Texas I/M SIP; and(G) collect emissions testing and other applicable fees for the Texas Motorist's Choice Program.(3) In order for both agencies to fulfill their respective program responsibilities, both agencies agree:(A) to share information necessary for maintaining program effectiveness, quality, and approvability by the EPA;(B) to allow the EPA to audit their program records;(C) to jointly determine, within 60 days of the effective date of this Memorandum of Understanding, a list of information to be shared along with a schedule and acceptable format for its provision. This list may be amended by mutual agreement of the agencies;(D) to consult on an appropriate course of action if an analysis of program data indicates that the Texas Motorist's Choice Program is not meeting commitments made in the Texas I/M SIP. Consultation requests may be made by the program director in either agency.(e) Dispute resolution. In the event that the commission and the department are not able to decide on a mutually agreeable plan of action with regard to the terms of this agreement, each agency shall inform the other of its concerns, in writing, and make a good faith effort to address the major concerns of the other party.(f) Reviews of and changes to the Memorandum of Understanding.(1) This Memorandum of Understanding shall be reviewed and updated, at a minimum, every fifth year from its effective date. Either party may suggest amendments when it feels such changes are warranted.(2) If a change in state or federal law or a change in the Texas SIP necessitates a change in this Memorandum of Understanding, then both the Director of the Mobile Source Division of the commission and the Director of the Vehicle Inspection and Emissions program of the department or their respective staffs will meet to work out a mutually agreeable amendment to the Memorandum of Understanding. If such an amendment is not possible, then either party may require dispute resolution under subsection (e) of this section.(3) This Memorandum of Understanding may be terminated by either agency upon at least 30 days written notice.</content><note type="source"><p>Source Note: The provisions of this §7.110 adopted to be effective December 13, 1996, 21 TexReg 11790.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.111"><num value="7.111">§7.111</num><heading>Adoption of Memoranda of Understanding between the Texas Department of Mental Health and Mental Retardation and the Texas Natural Resource Conservation Commission</heading><content>(a) This rule contains the memorandum of understanding (MOU) between the Texas Department of Mental Health and Mental Retardation and the Texas Natural Resource Conservation Commission, which sets forth the coordination of program responsibility and procedural mechanisms for the National Flood Insurance Program (NFIP) minimum regulations.(1) Whereas, under 44 CFR §60.12 of Rules and Regulations pertaining to the NFIP, the State of Texas is regarded as a community and therefore must comply with minimum floodplain management standards established for future state developments within identified 100-year floodplains in order to participate in the Program; and(2) Whereas, floodplain or 100-year floodplain, as these terms are used in the MOU, means any land area susceptible to being inundated by water from any source by that flood which has a one percent chance of being equaled or exceeded in any given year; and(3) Whereas, a condition of receiving future federal disaster relief loans and obtaining flood insurance coverage for insurable state-owned structures depends on the state's compliance with the National Flood Insurance Act of 1968, as amended; and(4) Whereas, the State of Texas has extensive and continuing programs for the construction of buildings, roads, and other facilities and annually acquires and disposes of lands in flood hazard areas, all of which activities significantly influence patterns of commercial, residential, and industrial development; and(5) Whereas, the Texas Department of Mental Health and Mental Retardation, here within called the MHMR, is a state agency with direct responsibility for the planning, location, or construction of certain state buildings, roads, or other facilities which may be in the floodplains of the state; and(6) Whereas, the MHMR shall represent the state before the Federal Emergency Management Agency, (FEMA), or other federal agencies on matters relating to the MHMR's structures and activities in the floodplains of the state; and(7) Whereas, the MHMR shall establish a floodplain management plan for all its existing and proposed structures and activities in the floodplains of the state; and(8) Whereas, for purposes of this MOU, the MHMR is responsible for its structures and activities in the floodplains of the state as defined by the NFIP and related Regulations (44 CFR Chapter 1); and(9) Whereas, the Texas Natural Resource Conservation Commission, here within known as the commission, is the state agency with primary responsibility for implementing the constitution and laws of the state related to floodplain management; and(10) Whereas, the commission has previously been designated as the State Coordinating Agency for the NFIP under the Texas Water Code, §§16.311 et seq.; and(11) Whereas, under §16.318 of the Texas Water Code, the commission has statutory authority to adopt and promulgate reasonable rules which are necessary for the state's participation in the NFIP; and(12) Whereas, consistent with the intent of §§16.311 et seq. of the Texas Water Code, the MHMR and the commission are committed to the development and implementation of a coordinated floodplain management program for the state; and(13) Whereas, consistent with Texas law and public policy, the MHMR and commission mutually desire to protect and maintain a high quality environment and the health of the people of the state;(14) Now, therefore, in consideration of the following promises, covenants, conditions, and the mutual benefits to accrue to the parties of this MOU, the Parties, desiring to cooperate in function and service agree as follows:(b) The commission agrees to:(1) Provide leadership in developing a broad and unified effort to encourage sound and economical utilization of the state's floodplains and, in particular, to lessen the risk of flood losses.(2) Administer, for the state, the cooperation with FEMA in the planning and carrying out of state participation in the NFIP; however, the responsibility for qualifying in the NFIP belongs to any interested political subdivision.(3) Monitor, through the executive director of the commission, implementation of the MHMR floodplain management plan, and provide FEMA with necessary programmatic reporting information on such floodplain management plans established by the MHMR.(4) Provide to the MHMR all current forms, timetables, procedural rules and any policy documents of the commission for addressing and processing complaints related to floodplain management of the state's floodplains.(5) Coordinate with the MHMR those compliance and enforcement issues that FEMA may raise relative to floodplain management of the state's floodplains.(6) Provide the MHMR with access to the commission's electronic database for all current Texas communities participating in the NFIP and other information pertaining to designated floodplains.(7) Develop and maintain state guidance for state agency structures and activities in the floodplains of the state.(c) The Texas Department of Mental Health and Mental Retardation agrees to:(1) Seek compliance with the FEMA's minimum floodplain management standards in the location and construction of its state-owned facilities within identified floodplains.(2) Ensure state appropriations requests for construction or modification of buildings, roads, or other facilities transmitted to the Legislative Budget Board and the Governor's Budget and Planning Office shall evaluate flood hazards when planning the modification to existing or the location of new facilities and, as far as practicable, shall consider the economic, safe and prudent use of floodplains in connection with such facilities.(3) Consider economic, safe, and prudent use of floodplains in the administration of state grant or loan programs involving the construction of buildings, structures, roads, or other facilities; and evaluate flood hazards in connection with such facilities in order to minimize the exposure of the above facilities and upstream and downstream properties to potential flood damage and the need for future state expenditures for flood protection and flood disaster relief.(4) Evaluate flood hazards in connection with lands or properties proposed for sale to other public entities or private interests and shall, to the extent permitted by state law, attach appropriate restrictions with respect to uses of the lands or properties for sale. In carrying out this paragraph, the MHMR may make appropriate allowance for any estimated loss in sales price resulting from the incorporation of use restrictions in the sale documents.(5) Take flood hazards into account when evaluating plans, projects, and requests for loans or grants for programs which affect land use planning, including state permit programs, and shall encourage land use appropriate to the degree of hazard involved.(6) Prepare, maintain, and update an inventory of the MHMR's respective state-owned structures and their contents which are located in identified 100-year floodplains. The inventory shall include the replacement costs and/or estimated fair market value of each structure and its contents.(7) From the effective date of this MOU, maintain a permanent record system which shows the date, location, and amount of flood losses to MHMR's state-owned properties and structures.(8) In the event of future flood damage to existing state-owned structures, evaluate the economic benefits of incorporated flood mitigation measures into the rehabilitation of the structure such that FEMA's minimum floodplain management standards are met. Where physically possible, economically beneficial, and environmentally feasible, federal disaster relief loans or grants received by the state will be used to implement mitigation measures to reduce the potential for future flood damage.(9) Provide the local participating community in which the modification to existing or new facility is located all necessary information and data for the community to document the project and to update FEMA on flood map changes that may be applicable. The MHMR will work with the community to resolve any floodplain management issues.(10) Provide the executive director of the commission with documentation (rules, policies, guidance, etc.) for development, supervision, and monitoring of floodplain management plans for projects in the floodplains of the state.(11) Provide to the executive director of the commission information about modification to existing and new facilities in the floodplains of the state required for the annual evaluation of the state's implementation of a State Floodplain Management Plan.(d) Both Parties Agree to:(1) Work together to refine the existing process for screening and prioritization of project proposals located in the floodplains of the state.(2) Coordinate efforts in the development and submission of reports as requested by FEMA to demonstrate compliance with the minimum NFIP regulations.(3) Communicate and coordinate directly with each other and FEMA on matters relating to program/project planning and implementation of MHMR activities/projects in the floodplains of the state.(4) Meet semi-annually to review and discuss the state's floodplain management program.(5) Work together to develop criteria for the development of floodplain management programs, that satisfy the state floodplain management standards as established by the commission.(6) Comply with all relevant state and federal statutes in addition to this MOU as it relates to the management of floodplains in the state.(7) Cooperate on activities related to the implementation of the "Texas State Floodplain Management Plan for State Agencies."(e) General Conditions:(1) Term of MOU. The Term of this MOU shall be from the effective date until termination of this agreement, as hereinafter provided.(2) Notice of Termination. Any party may terminate this MOU upon a 30-day written notice to the other party. Both parties agree to fulfill any grant commitments in place at the time of termination. Only upon written concurrence of both parties can this MOU be modified.(3) Cooperation of Parties. It is the intention of the parties that the details of providing the services in support of this MOU shall be worked out, in good faith, by both parties.(4) Nondiscrimination. Activities conducted under this MOU will be in compliance with the nondiscrimination provisions as contained in Titles VI and VII of the Civil Rights Act of 1964, as amended, the Civil Rights Restoration Act of 1987, and other nondiscrimination statutes, namely Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and the Americans With Disabilities Act of 1992, which aggregately provide that no person in the United States shall, on the grounds of race, color, national origin, age, sex, religion, marital status, or disability be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving federal financial assistance.(5) Notices. Any notices required by this MOU to be in writing shall be addressed to the respective party as follows: Texas Natural Resource Conservation Commission, Attn: Executive Director, P.O. Box 13087, Austin, Texas 78711-3087 and to the Texas Department of Mental Health and Mental Retardation, Attn:Executive Director, P.O. Box 12668 Austin, Texas 78711-2668.(6) Effective Date of Agreement. This Agreement is effective upon execution by both parties. By signing this Agreement, the signatories acknowledge that they are acting under proper authority from their governing bodies.</content><note type="source"><p>Source Note: The provisions of this §7.111 adopted to be effective January 1, 1998, 22 TexReg 12772.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.112"><num value="7.112">§7.112</num><heading>Adoption of Memoranda of Understanding between the Texas Department of Criminal Justice and the Texas Natural Resource Conservation Commission</heading><content>(a) This rule contains the memorandum of understanding (MOU) between the Texas Department of Criminal Justice and the Texas Natural Resource Conservation Commission, which sets forth the coordination of program responsibility and procedural mechanisms for the National Flood Insurance Program (NFIP) minimum regulations.(1) Whereas, under 44 CFR §60.12 of Rules and Regulations pertaining to the NFIP, the State of Texas is regarded as a community and therefore must comply with minimum floodplain management standards established for future state developments within identified 100-year floodplains in order to participate in the Program; and(2) Whereas, floodplain or 100-year floodplain, as these terms are used in the MOU, means any land area susceptible to being inundated by water from any source by that flood which has a one percent chance of being equaled or exceeded in any given year; and(3) Whereas, a condition of receiving future federal disaster relief loans and obtaining flood insurance coverage for insurable state-owned structures depends on the state's compliance with the National Flood Insurance Act of 1968, as amended; and(4) Whereas, the State of Texas has extensive and continuing programs for the construction of buildings, roads, and other facilities and annually acquires and disposes of lands in flood hazard areas, all of which activities significantly influence patterns of commercial, residential, and industrial development; and(5) Whereas, the Texas Department of Criminal Justice, here within called the TDCJ, is a state agency with direct responsibility for the planning, location, or construction of certain state buildings, roads, or other facilities which may be in the floodplains of the state; and(6) Whereas, the TDCJ shall represent the state before the Federal Emergency Management Agency, (FEMA), or other federal agencies on matters relating to the TDCJ's structures and activities in the floodplains of the state; and(7) Whereas, the TDCJ shall establish a floodplain management plan for all its existing and proposed structures and activities in the floodplains of the state; and(8) Whereas, for purposes of this MOU, the TDCJ is responsible for its structures and activities in the floodplains of the state as defined by the NFIP and related Regulations (44 CFR Chapter 1); and(9) Whereas, the Texas Natural Resource Conservation Commission, here within known as the commission, is the state agency with primary responsibility for implementing the constitution and laws of the state related to floodplain management; and(10) Whereas, the commission has previously been designated as the State Coordinating Agency for the NFIP under the Texas Water Code, §§16.311 et seq.; and(11) Whereas, under §16.318 of the Texas Water Code, the commission has statutory authority to adopt and promulgate reasonable rules which are necessary for the state's participation in the NFIP.(12) Whereas, consistent with the intent of §§16.311 et seq. of the Texas Water Code, the TDCJ and the commission are committed to the development and implementation of a coordinated floodplain management program for the state; and(13) Whereas, consistent with Texas law and public policy, the TDCJ and commission mutually desire to protect and maintain a high quality environment and the health of the people of the state;(14) Now, therefore, in consideration of the following promises, covenants, conditions, and the mutual benefits to accrue to the parties of this MOU, the Parties, desiring to cooperate in function and service agree as follows:(b) The commission agrees to:(1) Provide leadership in developing a broad and unified effort to encourage sound and economical utilization of the state's floodplains and, in particular, to lessen the risk of flood losses.(2) Administer, for the state, the cooperation with FEMA in the planning and carrying out of state participation in the NFIP; however, the responsibility for qualifying in the NFIP belongs to any interested political subdivision.(3) Monitor, through the executive director of the commission, implementation of the TDCJ floodplain management plan, and provide FEMA with necessary programmatic reporting information on such floodplain management plans established by the TDCJ.(4) Provide to the TDCJ all current forms, timetables, procedural rules and any policy documents of the commission for addressing and processing complaints related to floodplain management of the state's floodplains.(5) Coordinate with the TDCJ those compliance and enforcement issues that FEMA may raise relative to floodplain management of the state's floodplains.(6) Provide the TDCJ with access to the commission's electronic database for all current Texas communities participating in the NFIP and other information pertaining to designated floodplains.(7) Develop and maintain state guidance for state agency structures and activities in the floodplains of the state.(c) The Texas Department of Criminal Justice agrees to:(1) Seek compliance with the FEMA's minimum floodplain management standards in the location and construction of its state-owned facilities within identified floodplains.(2) Ensure state appropriations requests for construction or modification of buildings, roads, or other facilities transmitted to the Legislative Budget Board and the Governor's Budget and Planning Office shall evaluate flood hazards when planning the modification to existing or the location of new facilities and, as far as practicable, shall consider the economic, safe and prudent use of floodplains in connection with such facilities.(3) Consider economic, safe, and prudent use of floodplains in the administration of state grant or loan programs involving the construction of buildings, structures, roads, or other facilities; and evaluate flood hazards in connection with such facilities in order to minimize the exposure of the above facilities and upstream and downstream properties to potential flood damage and the need for future state expenditures for flood protection and flood disaster relief.(4) Evaluate flood hazards in connection with lands or properties proposed for sale to other public entities or private interests and shall, to the extent permitted by state law, attach appropriate restrictions with respect to uses of the lands or properties for sale. In carrying out this paragraph, the TDCJ may make appropriate allowance for any estimated loss in sales price resulting from the incorporation of use restrictions in the sale documents.(5) Take flood hazards into account when evaluating plans, projects, and requests for loans or grants for programs which affect land use planning, including state permit programs, and shall encourage land use appropriate to the degree of hazard involved.(6) Prepare, maintain, and update an inventory of the TDCJ's respective state-owned structures and their contents which are located in identified 100-year floodplains. The inventory shall include the replacement costs and/or estimated fair market value of each structure and its contents.(7) From the effective date of this MOU, maintain a permanent record system which shows the date, location, and amount of flood losses to TDCJ's state-owned properties and structures.(8) In the event of future flood damage to existing state-owned structures, evaluate the economic benefits of incorporated flood mitigation measures into the rehabilitation of the structure such that FEMA's minimum floodplain management standards are met. Where physically possible, economically beneficial, and environmentally feasible, federal disaster relief loans or grants received by the state will be used to implement mitigation measures to reduce the potential for future flood damage.(9) Provide the local participating community in which the modification to existing or new facility is located all necessary information and data for the community to document the project and to update FEMA on flood map changes that may be applicable. The TDCJ will work with the community to resolve any floodplain management issues.(10) Provide the executive director of the commission with documentation (rules, policies, guidance, etc.) for development, supervision, and monitoring of floodplain management plans for projects in the floodplains of the state.(11) Provide to the executive director of the commission information about modification to existing and new facilities in the floodplains of the state required for the annual evaluation of the State's Implementation of a State Floodplain Management Plan.(d) Both Parties Agree to:(1) Work together to refine the existing process for screening and prioritization of project proposals located in the floodplains of the state.(2) Coordinate efforts in the development and submission of reports as requested by FEMA to demonstrate compliance with the minimum NFIP regulations.(3) Communicate and coordinate directly with each other and FEMA on matters relating to program/project planning and implementation of TDCJ activities/projects in the floodplains of the state.(4) Meet semi-annually to review and discuss the state's floodplain management program.(5) Work together to develop criteria for the development of floodplain management programs, that satisfy the state floodplain management standards as established by the commission.(6) Comply with all relevant state and federal statutes in addition to this MOU as it relates to the management of floodplains in the state.(7) Cooperate on activities related to the implementation of the "Texas State Floodplain Management Plan for State Agencies."(e) General Conditions:(1) Term of MOU. The Term of this MOU shall be from the effective date until termination of this agreement, as hereinafter provided.(2) Notice of Termination. Any party may terminate this MOU upon a 30-day written notice to the other party. Both parties agree to fulfill any grant commitments in place at the time of termination. Only upon written concurrence of both parties can this MOU be modified.(3) Cooperation of Parties. It is the intention of the parties that the details of providing the services in support of this MOU shall be worked out, in good faith, by both parties.(4) Nondiscrimination. Activities conducted under this MOU will be in compliance with the nondiscrimination provisions as contained in Titles VI and VII of the Civil Rights Act of 1964, as amended, the Civil Rights Restoration Act of 1987, and other nondiscrimination statutes, namely Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and the Americans With Disabilities Act of 1992, which aggregately provide that no person in the United States shall, on the grounds of race, color, national origin, age, sex, religion, marital status, or disability be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving federal financial assistance.(5) Notices. Any notices required by this MOU to be in writing shall be addressed to the respective party as follows: Texas Natural Resource Conservation Commission, Attn: Executive Director, P.O. Box 13087, Austin, Texas 78711-3087 and to the Texas Department of Criminal Justice, Attn: Executive Director, P.O. Box 99, Huntsville, Texas 77340.(6) Effective Date of Agreement. This Agreement is effective upon execution by both parties. By signing this Agreement, the signatories acknowledge that they are acting under proper authority from their governing bodies.</content><note type="source"><p>Source Note: The provisions of this §7.112 adopted to be effective January 1, 1998, 22 TexReg 12772.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.113"><num value="7.113">§7.113</num><heading>Adoption of Memoranda of Understanding between the Texas Parks and Wildlife Department and the Texas Natural Resource Conservation Commission</heading><content>(a) This rule contains the memorandum of understanding (MOU) between the Texas Parks and Wildlife Department and the Texas Natural Resource Conservation Commission, which sets forth the coordination of program responsibility and procedural mechanisms for the National Flood Insurance Program (NFIP) minimum regulations.(1) Whereas, under 44 CFR §60.12 of Rules and Regulations pertaining to the NFIP, the State of Texas is regarded as a community and therefore must comply with minimum floodplain management standards established for future state developments within identified 100-year floodplains in order to participate in the Program; and(2) Whereas, floodplain or 100-year floodplain, as these terms are used in the MOU, means any land area susceptible to being inundated by water from any source by that flood which has a one percent chance of being equaled or exceeded in any given year; and(3) Whereas, a condition of receiving future federal disaster relief loans and obtaining flood insurance coverage for insurable state-owned structures depends on the state's compliance with the National Flood Insurance Act of 1968, as amended; and(4) Whereas, the State of Texas has extensive and continuing programs for the construction of buildings, roads, and other facilities and annually acquires and disposes of lands in flood hazard areas, all of which activities significantly influence patterns of commercial, residential, and industrial development; and(5) Whereas, the Texas Parks and Wildlife Department, here within called the TPWD, is a state agency with direct responsibility for the planning, location, or construction of certain state buildings, roads, or other facilities which maybe in the floodplains of the state; and(6) Whereas, the TPWD shall represent the state before the Federal Emergency Management Agency, (FEMA), or other federal agencies on matters relating to the TPWD's structures and activities in the floodplains of the state; and(7) Whereas, the TPWD shall establish a floodplain management plan for all its existing and proposed structures and activities in the floodplains of the state; and(8) Whereas, for purposes of this MOU, the TPWD is responsible for its structures and activities in the floodplains of the state as defined by the NFIP and related Regulations (44 CFR Chapter 1); and(9) Whereas, the Texas Natural Resource Conservation Commission, here within known as the commission, is the state agency with primary responsibility for implementing the constitution and laws of the state related to floodplain management; and(10) Whereas, the commission has previously been designated as the State Coordinating Agency for the NFIP under the Texas Water Code, §§16.311 et seq.; and(11) Whereas, under §16.318 of the Texas Water Code, the commission has statutory authority to adopt and promulgate reasonable rules which are necessary for the state's participation in the NFIP; and(12) Whereas, consistent with the intent of §§16.311 et seq. of the Texas Water Code, the TPWD and the commission are committed to the development and implementation of a coordinated floodplain management program for the state; and(13) Whereas, consistent with Texas law and public policy, the TPWD and commission mutually desire to protect and maintain a high quality environment and the health of the people of the state;(14) Now, therefore, in consideration of the following promises, covenants, conditions, and the mutual benefits to accrue to the parties of this MOU, the Parties, desiring to cooperate in function and service agree as follows:(b) The commission agrees to:(1) Provide leadership in developing a broad and unified effort to encourage sound and economical utilization of the state's floodplains and, in particular, to lessen the risk of flood losses.(2) Administer, for the state, the cooperation with FEMA in the planning and carrying out of state participation in the NFIP; however, the responsibility for qualifying in the NFIP belongs to any interested political subdivision.(3) Monitor, through the executive director of the commission, implementation of the TPWD floodplain management plan, and provide FEMA with necessary programmatic reporting information on such floodplain management plans established by the TPWD.(4) Provide to the TPWD all current forms, timetables, procedural rules and any policy documents of the commission for addressing and processing complaints related to floodplain management of the state's floodplains.(5) Coordinate with the TPWD those compliance and enforcement issues that FEMA may raise relative to floodplain management of the state's floodplains.(6) Provide the TPWD with access to the commission's electronic database for all current Texas communities participating in the NFIP and other information pertaining to designated floodplains.(7) Develop and maintain state guidance for state agency structures and activities in the floodplains of the state.(c) The Texas Parks and Wildlife Department agrees to:(1) Seek compliance with the FEMA's minimum floodplain management standards in the location and construction of its state-owned facilities within identified floodplains.(2) Ensure state appropriations requests for construction or modification of buildings, roads, or other facilities transmitted to the Legislative Budget Board and the Governor's Budget and Planning Office shall evaluate flood hazards when planning the modification to existing or the location of new facilities and, as far as practicable, shall consider the economic, safe and prudent use of floodplains in connection with such facilities.(3) Consider economic, safe, and prudent use of floodplains in the administration of state grant or loan programs involving the construction of buildings, structures, roads, or other facilities; and evaluate flood hazards in connection with such facilities in order to minimize the exposure of the above facilities and upstream and downstream properties to potential flood damage and the need for future state expenditures for flood protection and flood disaster relief.(4) Evaluate flood hazards in connection with lands or properties proposed for sale to other public entities or private interests and shall, to the extent permitted by state law, attach appropriate restrictions with respect to uses of the lands or properties for sale. In carrying out this paragraph, the TPWD may make appropriate allowance for any estimated loss in sales price resulting from the incorporation of use restrictions in the sale documents.(5) Take flood hazards into account when evaluating plans, projects, and requests for loans or grants for programs which affect land use planning, including state permit programs, and shall encourage land use appropriate to the degree of hazard involved.(6) Prepare, maintain, and update an inventory of the TPWD's respective state-owned structures and their contents which are located in identified 100-year floodplains. The inventory shall include the replacement costs and/or estimated fair market value of each structure and its contents.(7) From the effective date of this MOU, maintain a permanent record system which shows the date, location, and amount of flood losses to TPWD's state-owned properties and structures.(8) In the event of future flood damage to existing state-owned structures, evaluate the economic benefits of incorporated flood mitigation measures into the rehabilitation of the structure such that FEMA's minimum floodplain management standards are met. Where physically possible, economically beneficial, and environmentally feasible, federal disaster relief loans or grants received by the state will be used to implement mitigation measures to reduce the potential for future flood damage.(9) Provide the local participating community in which the modification to existing or new facility is located all necessary information and data for the community to document the project and to update FEMA on flood map changes that may be applicable. The TPWD will work with the community to resolve any floodplain management issues.(10) Provide the executive director of the commission with documentation (rules, policies, guidance, etc.) for development, supervision, and monitoring of floodplain management plans for projects in the floodplains of the state.(11) Provide to the executive director of the commission information about modification to existing and new facilities in the floodplains of the state required for the annual evaluation of the State's Implementation of a State Floodplain Management Plan.(d) Both Parties Agree to:(1) Work together to refine the existing process for screening and prioritization of project proposals located in the floodplains of the state.(2) Coordinate efforts in the development and submission of reports as requested by FEMA to demonstrate compliance with the minimum NFIP regulations.(3) Communicate and coordinate directly with each other and FEMA on matters relating to program/project planning and implementation of TPWD activities/projects in the floodplains of the state.(4) Meet semi-annually to review and discuss the state's floodplain management program.(5) Work together to develop criteria for the development of floodplain management programs, that satisfy the state floodplain management standards as established by the commission.(6) Comply with all relevant state and federal statutes in addition to this MOU as it relates to the management of floodplains in the state.(7) Cooperate on activities related to the implementation of the "Texas State Floodplain Management Plan for State Agencies."(e) General Conditions:(1) Term of MOU. The Term of this MOU shall be from the effective date until termination. of this agreement, as hereinafter provided.(2) Notice of Termination. Any party may terminate this MOU upon a 30-day written notice to the other party. Both parties agree to fulfill any grant commitments in place at the time of termination. Only upon written concurrence of both parties can this MOU be modified.(3) Cooperation of Parties. It is the intention of the parties that the details of providing the services in support of this MOU shall be worked out, in good faith, by both parties.(4) Nondiscrimination. Activities conducted under this MOU will be in compliance with the nondiscrimination provisions as contained in Titles VI and VII of the Civil Rights Act of 1964, as amended, the Civil Rights Restoration Act of 1987, and other nondiscrimination statutes, namely Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and the Americans With Disabilities Act of 1992, which aggregately provide that no person in the United States shall, on the grounds of race, color, national origin, age, sex, religion, marital status, or disability be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving federal financial assistance.(5) Notices. Any notices required by this MOU to be in writing shall be addressed to the respective party as follows: Texas Natural Resource Conservation Commission, Attn: Executive Director, P.O. Box 13087, Austin, Texas 78711-3087 and to the Texas Parks and Wildlife Department, Attn: Executive Director, 4200 Smith School Road Austin, Texas 78744.(6) Effective Date of Agreement. This Agreement is effective upon execution by both parties. By signing this Agreement, the signatories acknowledge that they are acting under proper authority from their governing bodies.</content><note type="source"><p>Source Note: The provisions of this §7.113 adopted to be effective January 1, 1998, 22 TexReg 12772.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.114"><num value="7.114">§7.114</num><heading>Adoption of Memoranda of Understanding between The Texas A&M University System and the Texas Natural Resource Conservation Commission</heading><content>(a) This rule contains the memorandum of understanding (MOU) between the Texas A&M University System and the Texas Natural Resource Conservation Commission, which sets forth the coordination of program responsibility and procedural mechanisms for the National Flood Insurance Program (NFIP) minimum regulations.(1) Whereas, under 44 CFR §60.12 of Rules and Regulations pertaining to the NFIP, the State of Texas is regarded as a community and therefore must comply with minimum floodplain management standards established for future state developments within identified 100-year floodplains in order to participate in the Program; and(2) Whereas, floodplain or 100-year floodplain, as these terms are used in the MOU, means any land area susceptible to being inundated by water from any source by that flood which has a one percent chance of being equaled or exceeded in any given year; and(3) Whereas, a condition of receiving future federal disaster relief loans and obtaining flood insurance coverage for insurable state-owned structures depends on the state's compliance with the National Flood Insurance Act of 1968, as amended; and(4) Whereas, the State of Texas has extensive and continuing programs for the construction of buildings, roads, and other facilities and annually acquires and disposes of lands in flood hazard areas, all of which activities significantly influence patterns of commercial, residential, and industrial development; and(5) Whereas, the Texas A&M University System, here within called the TAMU, is a state agency with direct responsibility for the planning, location, or construction of certain state buildings, roads, or other facilities which maybe in the floodplains of the state; and(6) Whereas, the TAMU shall represent the state before the Federal Emergency Management Agency, (FEMA), or other federal agencies on matters relating to the TAMU's structures and activities in the floodplains of the state; and(7) Whereas, the TAMU shall establish a floodplain management plan for all its existing and proposed structures and activities in the floodplains of the state; and(8) Whereas, for purposes of this MOU, the TAMU is responsible for its structures and activities in the floodplains of the state as defined by the NFIP and related Regulations (44 CFR Chapter 1); and(9) Whereas, the Texas Natural Resource Conservation Commission, here within known as the commission, is the state agency with primary responsibility for implementing the constitution and laws of the state related to floodplain management; and(10) Whereas, the commission has previously been designated as the State Coordinating Agency for the NFIP under the Texas Water Code, §§16.311 et seq.; and(11) Whereas, under §16.318 of the Texas Water Code, the commission has statutory authority to adopt and promulgate reasonable rules which are necessary for the state's participation in the NFIP; and(12) Whereas, consistent with the intent of §§16.311 et seq. of the Texas Water Code, the TAMU and the commission are committed to the development and implementation of a coordinated floodplain management program for the state; and(13) Whereas, consistent with Texas law and public policy, the TAMU and commission mutually desire to protect and maintain a high quality environment and the health of the people of the state;(14) Now, therefore, in consideration of the following promises, covenants, conditions, and the mutual benefits to accrue to the parties of this MOU, the Parties, desiring to cooperate in function and service agree as follows:(b) The commission agrees to:(1) Provide leadership in developing a broad and unified effort to encourage sound and economical utilization of the state's floodplains and, in particular, to lessen the risk of flood losses.(2) Administer, for the state, the cooperation with FEMA in the planning and carrying out of state participation in the NFIP; however, the responsibility for qualifying in the NFIP belongs to any interested political subdivision.(3) Monitor, through the executive director of the commission, implementation of the TAMU floodplain management plan, and provide FEMA with necessary programmatic reporting information on such floodplain management plans established by the TAMU.(4) Provide to the TAMU all current forms, timetables, procedural rules and any policy documents of the commission for addressing and processing complaints related to floodplain management of the state's floodplains.(5) Coordinate with the TAMU those compliance and enforcement issues that FEMA may raise relative to floodplain management of the state's floodplains.(6) Provide the TAMU with access to the commission's electronic database for all current Texas communities participating in the NFIP and other information pertaining to designated floodplains.(7) Develop and maintain state guidance for state agency structures and activities in the floodplains of the state.(c) The Texas A&M University System agrees to:(1) Seek compliance with the FEMA's minimum floodplain management standards in the location and construction of its state-owned facilities within identified floodplains.(2) Ensure state appropriations requests for construction or modification of buildings, roads, or other facilities transmitted to the Legislative Budget Board and the Governor's Budget and Planning Office shall evaluate flood hazards when planning the modification to existing or the location of new facilities and, as far as practicable, shall consider the economic, safe and prudent use of floodplains in connection with such facilities.(3) Consider economic, safe, and prudent use of floodplains in the administration of state grant or loan programs involving the construction of buildings, structures, roads, or other facilities; and evaluate flood hazards in connection with such facilities in order to minimize the exposure of the above facilities and upstream and downstream properties to potential flood damage and the need for future state expenditures for flood protection and flood disaster relief.(4) Evaluate flood hazards in connection with lands or properties proposed for sale to other public entities or private interests and shall, to the extent permitted by state law, attach appropriate restrictions with respect to uses of the lands or properties for sale. In carrying out this paragraph, the TAMU may make appropriate allowance for any estimated loss in sales price resulting from the incorporation of use restrictions in the sale documents.(5) Take flood hazards into account when evaluating plans, projects, and requests for loans or grants for programs which affect land use planning, including state permit programs, and shall encourage land use appropriate to the degree of hazard involved.(6) Prepare, maintain, and update an inventory of the TAMU's respective state-owned structures and their contents which are located in identified 100-year floodplains. The inventory shall include the replacement costs and/or estimated fair market value of each structure and its contents.(7) From the effective date of this MOU, maintain a permanent record system which shows the date, location, and amount of flood losses to TAMU's state-owned properties and structures.(8) In the event of future flood damage to existing state-owned structures, evaluate the economic benefits of incorporated flood mitigation measures into the rehabilitation of the structure such that FEMA's minimum floodplain management standards are met. Where physically possible, economically beneficial, and environmentally feasible, federal disaster relief loans or grants received by the state will be used to implement mitigation measures to reduce the potential for future flood damage.(9) Provide the local participating community in which the modification to existing or new facility is located all necessary information and data for the community to document the project and to update FEMA on flood map changes that may be applicable. The TAMU will work with the community to resolve any floodplain management issues.(10) Provide the executive director of the commission with documentation (rules, policies, guidance, etc.) for development, supervision, and monitoring of floodplain management plans for projects in the floodplains of the state.(11) Provide to the executive director of the commission information about modification to existing and new facilities in the floodplains of the state required for the annual evaluation of the State's Implementation of a State Floodplain Management Plan.(d) Both Parties Agree to:(1) Work together to refine the existing process for screening and prioritization of project proposals located in the floodplains of the state.(2) Coordinate efforts in the development and submission of reports as requested by FEMA to demonstrate compliance with the minimum NFIP regulations.(3) Communicate and coordinate directly with each other and FEMA on matters relating to program/project planning and implementation of TAMU activities/projects in the floodplains of the state.(4) Meet semi-annually to review and discuss the state's floodplain management program.(5) Work together to develop criteria for the development of floodplain management programs, that satisfy the state floodplain management standards as established by the commission.(6) Comply with all relevant state and federal statutes in addition to this MOU as it relates to the management of floodplains in the state.(7) Cooperate on activities related to the implementation of the "Texas State Floodplain Management Plan for State Agencies."(e) General Conditions:(1) Term of MOU. The Term of this MOU shall be from the effective date until termination of this agreement, as hereinafter provided.(2) Notice of Termination. Any party may terminate this MOU upon a 30-day written notice to the other party. Both parties agree to fulfill any grant commitments in place at the time of termination. Only upon written concurrence of both parties can this MOU be modified.(3) Cooperation of Parties. It is the intention of the parties that the details of providing the services in support of this MOU shall be worked out, in good faith, by both parties.(4) Nondiscrimination. Activities conducted under this MOU will be in compliance with the nondiscrimination provisions as contained in Titles VI and VII of the Civil Rights Act of 1964, as amended, the Civil Rights Restoration Act of 1987, and other nondiscrimination statutes, namely Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and the Americans With Disabilities Act of 1992, which aggregately provide that no person in the United States shall, on the grounds of race, color, national origin, age, sex, religion, marital status, or disability be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving federal financial assistance.(5) Notices. Any notices required by this MOU to be in writing shall be addressed to the respective party as follows: Texas Natural Resource Conservation Commission, Attn: Executive Director, P.O. Box 13087, Austin, Texas 78711-3087 and to the Texas A&M University System, Attn: Executive Director, USMS 1586 College Station, Texas 77843.(6) Effective Date of Agreement. This Agreement is effective upon execution by both parties. By signing this Agreement, the signatories acknowledge that they are acting under proper authority from their governing bodies.</content><note type="source"><p>Source Note: The provisions of this §7.114 adopted to be effective January 1, 1998, 22 TexReg 12772.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.115"><num value="7.115">§7.115</num><heading>Adoption of Memoranda of Understanding between the Texas Low-Level Radioactive Waste Disposal Authority and the Texas Natural Resource Conservation Commission</heading><content>(a) This rule contains the memorandum of understanding (MOU) between the Texas Low-Level Radioactive Waste Disposal Authority and the Texas Natural Resource Conservation Commission, which sets forth the coordination of program responsibility and procedural mechanisms for the National Flood Insurance Program (NFIP) minimum regulations.(1) Whereas, under 44 CFR §60.12 of Rules and Regulations pertaining to the NFIP, the State of Texas is regarded as a community and therefore must comply, with minimum floodplain management standards established for future state developments within identified 100-year floodplains in order to participate in the Program; and(2) Whereas, floodplain or 100-year floodplain, as these terms are used in the MOU, means any land area susceptible to being inundated by water from any source by that flood which has a one percent chance of being equaled or exceeded in any given year; and(3) Whereas, a condition of receiving future federal disaster relief loans and obtaining flood insurance coverage for insurable state-owned structures depends on the state's compliance with the National Flood Insurance Act of 1968, as amended; and(4) Whereas, the State of Texas has extensive and continuing programs for the construction of buildings, roads, and other facilities and annually acquires and disposes of lands in flood hazard areas, all of which activities significantly influence patterns of commercial, residential, and industrial development; and(5) Whereas, the Texas Low-Level Radioactive Waste Disposal Authority, here within called the TLLRWDA, is a state agency with direct responsibility for the planning, location, or construction of certain state buildings, roads, or other facilities which maybe in the floodplains of the state; and(6) Whereas, the TLLRWDA shall represent the state before the Federal Emergency Management Agency, (FEMA), or other federal agencies on matters relating to the TLLRWDA's structures and activities in the floodplains of the state; and(7) Whereas, the TLLRWDA shall establish a floodplain management plan for all its existing and proposed structures and activities in the floodplains of the state; and(8) Whereas, for purposes of this MOU, the TLLRWDA is responsible for its structures and activities in the floodplains of the state as defined by the NFIP and related Regulations (44 CFR Chapter 1); and(9) Whereas, the Texas Natural Resource Conservation Commission, here within known as the commission, is the state agency with primary responsibility for implementing the constitution and laws of the state related to floodplain management; and(10) Whereas, the commission has previously been designated as the State Coordinating Agency for the NFIP under the Texas Water Code, §§16.311 et seq.; and(11) Whereas, under §16.318 of the Texas Water Code, the commission has statutory authority to adopt and promulgate reasonable rules which are necessary for the state's participation in the NFIP; and(12) Whereas, consistent with the intent of §§16.311 et seq. of the Texas Water Code, the TLLRWDA and the commission are committed to the development and implementation of a coordinated floodplain management program for the state; and(13) Whereas, consistent with Texas law and public policy, the TLLRWDA and commission mutually desire to protect and maintain a high quality environment and the health of the people of the state;(14) Now, therefore, in consideration of the following promises, covenants, conditions, and the mutual benefits to accrue to the parties of this MOU, the Parties, desiring to cooperate in function and service agree as follows:(b) The commission agrees to:(1) Provide leadership in developing a broad and unified effort to encourage sound and economical utilization of the State's floodplains and, in particular, to lessen the risk of flood losses.(2) Administer, for the state, the cooperation with FEMA in the planning and carrying out of state participation in the NFIP; however, the responsibility for qualifying in the NFIP belongs to any interested political subdivision.(3) Monitor, through the executive director of the commission, implementation of the TLLRWDA floodplain management plan, and provide FEMA with necessary programmatic reporting information on such floodplain management plans established by the TLLRWDA.(4) Provide to the TLLRWDA all current forms, timetables, procedural rules and any policy documents of the commission for addressing and processing complaints related to floodplain management of the state's floodplains.(5) Coordinate with the TLLRWDA those compliance and enforcement issues that FEMA may raise relative to floodplain management of the state's floodplains.(6) Provide the TLLRWDA with access to the commission's electronic database for all current Texas communities participating in the NFIP and other information pertaining to designated floodplains.(7) Develop and maintain state guidance for state agency structures and activities in the floodplains of the state.(c) The Texas Low-Level Radioactive Waste Disposal Authority agrees to:(1) Seek compliance with the FEMA's minimum floodplain management standards in the location and construction of its state-owned facilities within identified floodplains.(2) Ensure state appropriations requests for construction or modification of buildings, roads, or other facilities transmitted to the Legislative Budget Board and the Governor's Budget and Planning Office shall evaluate flood hazards when planning the modification to existing or the location of new facilities and, as far as practicable, shall consider the economic, safe and prudent use of floodplains in connection with such facilities.(3) Consider economic, safe, and prudent use of floodplains in the administration of state grant or loan programs involving the construction of buildings, structures, roads, or other facilities; and evaluate flood hazards in connection with such facilities in order to minimize the exposure of the above facilities and upstream and downstream properties to potential flood damage and the need for future state expenditures for flood protection and flood disaster relief.(4) Evaluate flood hazards in connection with lands or properties proposed for sale to other public entities or private interests and shall, to the extent permitted by state law, attach appropriate restrictions with respect to uses of the lands or properties for sale. In carrying out this paragraph, the TLLRWDA may make appropriate allowance for any estimated loss in sales price resulting from the incorporation of use restrictions in the sale documents.(5) Take flood hazards into account when evaluating plans, projects, and requests for loans or grants for programs which affect land use planning, including state permit programs, and shall encourage land use appropriate to the degree of hazard involved.(6) Prepare, maintain, and update an inventory of the TLLRWDA's respective state-owned structures and their contents which are located in identified 100-year floodplains. The inventory shall include the replacement costs and/or estimated fair market value of each structure and its contents.(7) From the effective date of this MOU, maintain a permanent record system which shows the date, location, and amount of flood losses to TLLRWDA's state-owned properties and structures.(8) In the event of future flood damage to existing state-owned structures, evaluate the economic benefits of incorporated flood mitigation measures into the rehabilitation of the structure such that FEMA's minimum floodplain management standards are met. Where physically possible, economically beneficial, and environmentally feasible, federal disaster relief loans or grants received by the state will be used to implement mitigation measures to reduce the potential for future flood damage.(9) Provide the local participating community in which the modification to existing or new facility is located all necessary information and data for the community to document the project and to update FEMA on flood map changes that may be applicable. The TLLRWDA will work with the community to resolve any floodplain management issues.(10) Provide the executive director of the commission with documentation (rules, policies, guidance, etc.) for development, supervision, and monitoring of floodplain management plans for projects in the floodplains of the state.(11) Provide to the executive director of the commission information about modification to existing and new facilities in the floodplains of the state required for the annual evaluation of the State's Implementation of a State Floodplain Management Plan.(d) Both Parties Agree to:(1) Work together to refine the existing process for screening and prioritization of project proposals located in the floodplains of the state.(2) Coordinate efforts in the development and submission of reports as requested by FEMA to demonstrate compliance with the minimum NFIP regulations.(3) Communicate and coordinate directly with each other and FEMA on matters relating to program/project planning and implementation of TLLRWDA activities/projects in the floodplains of the state.(4) Meet semi-annually to review and discuss the state's floodplain management program.(5) Work together to develop criteria for the development of floodplain management programs, that satisfy the state floodplain management standards as established by the commission.(6) Comply with all relevant state and federal statutes in addition to this MOU as it relates to the management of floodplains in the state.(7) Cooperate on activities related to the implementation of the "Texas State Floodplain Management Plan for State Agencies."(e) General Conditions:(1) Term of MOU. The Term of this MOU shall be from the effective date until termination. of this agreement, as hereinafter provided.(2) Notice of Termination. Any party may terminate this MOU upon a 30-day written notice to the other party. Both parties agree to fulfill any grant commitments in place at the time of termination. Only upon written concurrence of both parties can this MOU be modified.(3) Cooperation of Parties. It is the intention of the parties that the details of providing the services in support of this MOU shall be worked out, in good faith, by both parties.(4) Nondiscrimination. Activities conducted under this MOU will be in compliance with the nondiscrimination provisions as contained in Titles VI and VII of the Civil Rights Act of 1964, as amended, the Civil Rights Restoration Act of 1987, and other nondiscrimination statutes, namely Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and the Americans With Disabilities Act of 1992, which aggregately provide that no person in the United States shall, on the grounds of race, color, national origin, age, sex, religion, marital status, or disability be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving federal financial assistance.(5) Notices. Any notices required by this MOU to be in writing shall be addressed to the respective party as follows: Texas Natural Resource Conservation Commission, Attn: Executive Director, P.O. Box 13087, Austin, Texas 78711-3087 and to the Texas Low-Level Radioactive Waste Disposal Authority, Attn: Executive Director, 7701 North Lamar Blvd, Austin, Texas 78752.(6) Effective Date of Agreement. This Agreement is effective upon execution by both parties. By signing this Agreement, the signatories acknowledge that they are acting under proper authority from their governing bodies.</content><note type="source"><p>Source Note: The provisions of this §7.115 adopted to be effective January 1, 1998, 22 TexReg 12772.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.116"><num value="7.116">§7.116</num><heading>Adoption of Memoranda of Understanding between the General Services Commission and the Texas Natural Resource Conservation Commission</heading><content>(a) This rule contains the memorandum of understanding (MOU) between the General Services Commission and the Texas Natural Resource Conservation Commission, which sets forth the coordination of program responsibility and procedural mechanisms for the National Flood Insurance Program (NFIP) minimum regulations.(1) Whereas, under 44 CFR §60.12 of Rules and Regulations pertaining to the NFIP, the State of Texas is regarded as a community and therefore must comply, with minimum floodplain management standards established for future state developments within identified 100-year floodplains in order to participate in the Program; and(2) Whereas, floodplain or 100-year floodplain, as these terms are used in the MOU, means any land area susceptible to being inundated by water from any source by that flood which has a one percent chance of being equaled or exceeded in any given year; and(3) Whereas, a condition of receiving future federal disaster relief loans and obtaining flood insurance coverage for insurable state-owned structures depends on the state's compliance with the National Flood Insurance Act of 1968, as amended; and(4) Whereas, the State of Texas has extensive and continuing programs for the construction of buildings, roads, and other facilities and annually acquires and disposes of lands in flood hazard areas, all of which activities significantly influence patterns of commercial, residential, and industrial development; and(5) Whereas, the General Services Commission, here within called the GSC, is a state agency with direct responsibility for the planning, location, or construction of certain state buildings, roads, or other facilities which maybe in the floodplains of the state; and(6) Whereas, the GSC may represent the state before the Federal Emergency Management Agency, (FEMA), or other federal agencies on matters relating to the GSC's structures and activities in the floodplains of the state; and(7) Whereas, the GSC will cooperate with other state agencies to establish a floodplain management plan for all its existing and proposed structures and activities in the floodplains of the state; and(8) Whereas, for purposes of this MOU, the GSC in conjunction with other state agencies is responsible for its structures and activities in the floodplains of the state as defined by the NFIP and related Regulations (44 CFR Chapter 1); and(9) Whereas, the Texas Natural Resource Conservation Commission, here within known as the commission, is the state agency with primary responsibility for implementing the constitution and laws of the state related to floodplain management; and(10) Whereas, the commission has previously been designated as the State Coordinating Agency for the NFIP under the Texas Water Code, §§16.311 et seq.; and(11) Whereas, under §16.318 of the Texas Water Code, the commission has statutory authority to adopt and promulgate reasonable rules which are necessary for the state's participation in the NFIP;(12) Whereas, consistent with the intent of §§16.311 et seq. of the Texas Water Code, the GSC and the commission are committed to the development and implementation of a coordinated floodplain management program for the state; and(13) Whereas, consistent with Texas law and public policy, the GSC and commission mutually desire to protect and maintain a high quality environment and the health of the people of the state;(14) Now, therefore, in consideration of the following promises, covenants, conditions, and the mutual benefits to accrue to the parties of this MOU, the Parties, desiring to cooperate in function and service agree as follows:(b) The commission agrees to:(1) Provide leadership in developing a broad and unified effort to encourage sound and economical utilization of the state's floodplains and, in particular, to lessen the risk of flood losses.(2) Administer, for the state, the cooperation with FEMA in the planning and carrying out of state participation in the NFIP; however, the responsibility for qualifying in the NFIP belongs to any interested political subdivision.(3) Monitor, through the executive director of the commission, implementation of the floodplain management plan developed by the GSC and other state agencies, and provide FEMA with necessary programmatic reporting information on such floodplain management plans established by the GSC in cooperation with other state agencies.(4) Provide to the GSC all current forms, timetables, procedural rules and any policy documents of the commission for addressing and processing complaints related to floodplain management of the state's floodplains.(5) Coordinate with the GSC and other state agencies those compliance and enforcement issues that FEMA may raise relative to floodplain management of the state's floodplains.(6) Provide the GSC and other state agencies with access to the commission's electronic database for all current Texas communities participating in the NFIP and other information pertaining to designated floodplains.(7) Develop and maintain state guidance for state agency structures and activities in the floodplains of the state.(c) The General Services Commission agrees to:(1) Cooperate with other state agencies to seek compliance with the FEMA's minimum floodplain management standards in the location and construction of its state-owned facilities within identified floodplains.(2) Cooperate with other state agencies to consider flood hazards in state appropriations request for construction or modification of buildings, roads, or other facilities transmitted to the Legislative Budget Board and the Governor's Budget and Planning Office shall evaluate flood hazards when planning the modification to existing or the location of new facilities and, as far as practicable, shall consider the economic, safe and prudent use of floodplains in connection with such facilities.(3) Cooperate with other state agencies to consider economic, safe, and prudent use of floodplains in the administration of state grant or loan programs involving the construction of buildings, structures, roads, or other facilities; and evaluate flood hazards in connection with such facilities in order to minimize the exposure of the above facilities and upstream and downstream properties to potential flood damage and the need for future state expenditures for flood protection and flood disaster relief.(4) Cooperate with other state agencies to evaluate flood hazards in connection with lands or properties proposed for sale to other public entities or private interests and shall, to the extent permitted by state law, attach appropriate restrictions with respect to uses of the lands or properties for sale. In carrying out this paragraph, the GSC may make appropriate allowance for any estimated loss in sales price resulting from the incorporation of use restrictions in the sale documents.(5) Cooperate with other state agencies to take flood hazards into account when evaluating plans, projects, and requests for loans or grants for programs which affect land use planning, including state permit programs, and shall encourage land use appropriate to the degree of hazard involved.(6) Cooperate with other state agencies to prepare, maintain, and update an inventory of the GSC's respective state-owned structures and their contents which are located in identified 100-year floodplains. The inventory shall include the replacement costs and/or estimated fair market value of each structure and its contents.(7) Cooperate with other state agencies to maintain a permanent record system which shows the date, location, and amount of flood losses to GSC's state-owned properties and structures.(8) Cooperate with other state agencies to evaluate the economic benefits of incorporated flood mitigation measures into the rehabilitation of the structure such that FEMA's minimum floodplain management standards are met. Where physically possible, economically beneficial, and environmentally feasible, federal disaster relief loans or grants received by the state will be used to implement mitigation measures to reduce the potential for future flood damage.(9) Cooperate with other state agencies to provide the local participating community in which the modification to existing or new facility is located all necessary information and data for the community to document the project and to update FEMA on flood map changes that may be applicable. The GSC will work with the community to resolve any floodplain management issues.(10) Cooperate with other state agencies to provide the executive director of the commission with documentation (rules, policies, guidance, etc.) for development, supervision, and monitoring of floodplain management plans for projects in the floodplains of the state.(11) Cooperate with other state agencies to provide to the executive director of the commission information about modification to existing and new facilities in the floodplains of the state required for the annual evaluation of the State's Implementation of a State Floodplain Management Plan.(d) Both Parties Agree to:(1) Work together and with other state agencies to refine the existing process for screening and prioritization of project proposals located in the floodplains of the state.(2) Coordinate efforts with other state agencies in the development and submission of reports as requested by FEMA to demonstrate compliance with the minimum NFIP regulations.(3) Communicate and coordinate and with other state agencies and FEMA on matters relating to program/project planning and implementation of activities/projects in the floodplains of the state.(4) Meet and with other state agencies semi-annually to review and discuss the state's floodplain management program.(5) Work and with other state agencies together to develop criteria for the development of floodplain management programs, that satisfy the state floodplain management standards as established by the commission.(6) Comply with all relevant state and federal statutes in addition to this MOU as it relates to the management of floodplains in the state.(7) Cooperate on activities related to the implementation of the "Texas State Floodplain Management Plan for State Agencies."(e) General Conditions:(1) Term of MOU. The Term of this MOU shall be from the effective date until termination. of this agreement, as hereinafter provided.(2) Notice of Termination. Any party may terminate this MOU upon a 30-day written notice to the other party. Both parties agree to fulfill any grant commitments in place at the time of termination. Only upon written concurrence of both parties can this MOU be modified.(3) Cooperation of Parties. It is the intention of the parties that the details of providing the services in support of this MOU shall be worked out, in good faith, by both parties.(4) Nondiscrimination. Activities conducted under this MOU will be in compliance with the nondiscrimination provisions as contained in Titles VI and VII of the Civil Rights Act of 1964, as amended, the Civil Rights Restoration Act of 1987, and other nondiscrimination statutes, namely Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and the Americans With Disabilities Act of 1992, which aggregately provide that no person in the United States shall, on the grounds of race, color, national origin, age, sex, religion, marital status, or disability be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving federal financial assistance.(5) Notices. Any notices required by this MOU to be in writing shall be addressed to the respective party as follows: Texas Natural Resource Conservation Commission, Attn: Executive Director, P.O. Box 13087, Austin, Texas 78711-3087 and to the General Services Commission, Attn: Executive Director, P.O. Box 13047, Capitol Station, Austin, Texas 78711-3047.(6) Effective Date of Agreement. This Agreement is effective upon execution by both parties. By signing this Agreement, the signatories acknowledge that they are acting under proper authority from their governing bodies.</content><note type="source"><p>Source Note: The provisions of this §7.116 adopted to be effective January 1, 1998, 22 TexReg 12772.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.117"><num value="7.117">§7.117</num><heading>Memorandum of Understanding between the Railroad Commission of Texas (RRC) and the Texas Commission on Environmental Quality (TCEQ)</heading><content>(a) Need for agreement. Several statutes cover persons and activities where the respective jurisdictions of the RRC and the TCEQ may intersect. This rule is a statement of how the agencies implement the division of jurisdiction. (1) Section 10 of House Bill 1407, 67th Legislature, 1981, which appeared as a footnote to the Texas Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7, provides as follows: On or before January 1, 1982, the Texas Department of Water Resources, the Texas Department of Health, and the Railroad Commission of Texas shall execute a memorandum of understanding that specifies in detail these agencies' interpretation of the division of jurisdiction among the agencies over waste materials that result from or are related to activities associated with the exploration for and the development, production, and refining of oil or gas. The agencies shall amend the memorandum of understanding at any time that the agencies find it to be necessary.(2) Texas Health and Safety Code, §401.414, relating to Memoranda of Understanding, requires the Railroad Commission of Texas and the Texas Commission on Environmental Quality to adopt a memorandum of understanding (MOU) defining the agencies' respective duties under Texas Health and Safety Code, Chapter 401, relating to radioactive materials and other sources of radiation. Texas Health and Safety Code, §401.415, relating to oil and gas naturally occurring radioactive material (NORM) waste, provides that the Railroad Commission of Texas shall issue rules on the management of oil and gas NORM waste, and in so doing shall consult with the Texas Natural Resource Conservation Commission (now TCEQ) and the Department of Health (now Department of State Health Services) regarding protection of the public health and the environment.(3) Texas Water Code, Chapters 26 and 27, provide that the Railroad Commission and TCEQ collaborate on matters related to discharges, surface water quality, groundwater protection, underground injection control and geologic storage of carbon dioxide. Texas Water Code, §27.049, relating to Memorandum of Understanding, requires the RRC and TCEQ to adopt a new MOU or amend the existing MOU to reflect the agencies' respective duties under Texas Water Code, Chapter 27, Subchapter C-1 (relating to Geologic Storage and Associated Injection of Anthropogenic Carbon Dioxide).(4) The original MOU between the agencies adopted pursuant to HB 1407 (67th Legislature, 1981) became effective January 1, 1982. The MOU was revised effective December 1, 1987, May 31, 1998, August 30, 2010, and again on May 1, 2012, to reflect legislative clarification of the Railroad Commission's jurisdiction over oil and gas wastes and the Texas Natural Resource Conservation Commission's (the combination of the Texas Water Commission, the Texas Air Control Board, and portions of the Texas Department of Health) jurisdiction over industrial and hazardous wastes.(5) The agencies have determined that the revised MOU that became effective on May 1, 2012, should again be revised to further clarify jurisdictional boundaries and to reflect legislative changes in agency responsibility.(b) General agency jurisdictions.(1) Texas Commission on Environmental Quality (TCEQ) (the successor agency to the Texas Natural Resource Conservation Commission). (A) Solid waste. Under Texas Health and Safety Code, Chapter 361, §§361.001 - 361.754, the TCEQ has jurisdiction over solid waste. The TCEQ's jurisdiction encompasses hazardous and nonhazardous, industrial and municipal, solid wastes.(B) Water quality.(i) Discharges under Texas Water Code, Chapter 26. Under the Texas Water Code, Chapter 26, the TCEQ has jurisdiction over discharges into or adjacent to water in the state, except for discharges regulated by the RRC. Upon delegation from the United States Environmental Protection Agency to the TCEQ of authority to issue permits for discharges into surface water in the state of produced water, hydrostatic test water, and gas plant effluent resulting from the activities described in Texas Water Code, §26.131(a), the TCEQ has sole authority to issue permits for those discharges. For the purposes of TCEQ's implementation of Texas Water Code, §26.131, "produced water" is defined as all wastewater associated with oil and gas exploration, development, and production activities, except hydrostatic test water and gas plant effluent, that is discharged into water in the state, including waste streams regulated by 40 CFR Part 435.(ii) Discharge permits existing on the effective date of EPA's delegation to TCEQ of NPDES permit authority for discharges of produced water, hydrostatic test water, and gas plant effluent. RRC permits issued prior to TCEQ delegation of NPDES authority shall remain effective until revoked or expired. Amendment or renewal of such permits on or after the effective date of delegation shall be pursuant to TCEQ's TPDES authority. The TPDES permit will supersede and replace the RRC permit. For facilities that have both an RRC permit and an EPA permit, TCEQ will issue the TPDES permit upon amendment or renewal of the RRC or EPA permit, whichever occurs first.(iii) Discharge applications pending on the effective date of EPA's delegation to TCEQ of NPDES permit authority for discharges of produced water, hydrostatic test water, and gas plant effluent. TCEQ shall assume authority for discharge applications pending at the time TCEQ receives delegation from EPA. The RRC will provide TCEQ the permit application and any other relevant information necessary to administratively and technically review and process the applications. TCEQ will review and process these pending applications in accordance with TPDES requirements.(iv) Storm water. TCEQ has jurisdiction over stormwater discharges that are required to be permitted pursuant to Title 40 Code of Federal Regulations (CFR) Part 122.26, except for discharges regulated by the RRC. Discharge of storm water regulated by TCEQ may be authorized by an individual Texas Pollutant Discharge Elimination System (TPDES) permit or by a general TPDES permit. These storm water permits may also include authorizations for certain minor types of non-storm water discharges.(I) Storm water associated with industrial activities. The TCEQ regulates storm water discharges associated with certain industrial activities under individual TPDES permits and under the TPDES Multi-Sector General Permit, except for discharges associated with industrial activities under the jurisdiction of the RRC.(II) Storm water associated with construction activities. The TCEQ regulates storm water discharges associated with construction activities, except for discharges from construction activities under the jurisdiction of the RRC.(III) Municipal storm water discharges. The TCEQ has jurisdiction over discharges from regulated municipal storm sewer systems (MS4s).(IV) Combined storm water. Except with regard to storage of oil, when a portion of a site is regulated by the TCEQ, and a portion of a site is regulated by the EPA and RRC, storm water authorization must be obtained from the TCEQ for the portion(s) of the site regulated by the TCEQ, and from the EPA and the RRC, as applicable, for the RRC regulated portion(s) of the site. Discharge of storm water from a facility that stores both refined products intended for off-site use and crude oil in aboveground tanks is regulated by the TCEQ. (v) State water quality certification. Under the Clean Water Act (CWA) Section 401 (33 U.S.C. Section 1341), the TCEQ performs state water quality certifications for activities that require a federal license or permit and that may result in a discharge to waters of the United States, except for those activities regulated by the RRC.(vi) Commercial brine extraction and evaporation. Under Texas Water Code, §26.132, the TCEQ has jurisdiction over evaporation pits operated for the commercial production of brine water, minerals, salts, or other substances that naturally occur in groundwater and that are not regulated by the RRC.(C) Injection wells. Under the Texas Water Code, Chapter 27, the TCEQ has jurisdiction to regulate and authorize the drilling, construction, operation, and closure of injection wells unless the activity is subject to the jurisdiction of the RRC. Injection wells under TCEQ's jurisdiction are identified in §331.11 of this title (relating to Classification of Injection Wells) and include:(i) Class I injection wells for the disposal of hazardous, radioactive, industrial or municipal waste that inject fluids below the lower-most formation which within 1/4 mile of the wellbore contains an underground source of drinking water;(ii) Class III injection wells for the extraction of minerals including solution mining of sodium sulfate, sulfur, potash, phosphate, copper, uranium and the mining of sulfur by the Frasch process;(iii) Class IV injection wells for the disposal of hazardous or radioactive waste which inject fluids into or above formations that contain an underground source of drinking water; and(iv) Class V injection wells that are not under the jurisdiction of the RRC, such as aquifer remediation wells, aquifer recharge wells, aquifer storage wells, large capacity septic systems, storm water drainage wells, salt water intrusion barrier wells, and closed loop geothermal wells.(2) Railroad Commission of Texas (RRC).(A) Oil and gas waste.(i) Under Texas Natural Resources Code, Title 3, and Texas Water Code, Chapter 26, wastes (both hazardous and nonhazardous) resulting from activities associated with the exploration, development, or production of oil or gas or geothermal resources, including storage, handling, reclamation, gathering, transportation, or distribution of crude oil or natural gas by pipeline, prior to the refining of such oil or prior to the use of such gas in any manufacturing process or as a residential or industrial fuel, are under the jurisdiction of the RRC, except as noted in clause (ii) of this subparagraph. These wastes are termed "oil and gas wastes." In compliance with Texas Health and Safety Code, §361.025 (relating to exempt activities), a list of activities that generate wastes that are subject to the jurisdiction of the RRC is found at 16 TAC §3.8(a)(30) (relating to Water Protection) and at §335.1 of this title (relating to Definitions), which contains a definition of "activities associated with the exploration, development, and production of oil or gas or geothermal resources." Under Texas Health and Safety Code, §401.415, the RRC has jurisdiction over the disposal of oil and gas naturally occurring radioactive material (NORM) waste that constitutes, is contained in, or has contaminated oil and gas waste.(ii) Hazardous wastes arising out of or incidental to activities associated with gasoline plants, natural gas or natural gas liquids processing plants or reservoir pressure maintenance or repressurizing plants are subject to the jurisdiction of the TCEQ until the RRC is authorized by EPA to administer RCRA. When the RRC is authorized by EPA to administer RCRA, jurisdiction over such hazardous wastes will transfer from the TCEQ to the RRC.(B) Water quality.(i) Discharges. Under Texas Natural Resources Code, Title 3, and Texas Water Code, Chapter 26, the RRC regulates discharges from activities associated with the exploration, development, or production of oil, gas, or geothermal resources, including transportation of crude oil and natural gas by pipeline, and from solution brine mining activities, except that on delegation to the TCEQ of NPDES authority for discharges into surface water in the state of produced water, hydrostatic test water, and gas plant effluent resulting from the activities described in Texas Water Code, §26.131(a), the TCEQ has sole authority to issue permits for those discharges. Discharges regulated by the RRC into or adjacent to water in the state shall not cause a violation of the water quality standards. While water quality standards are established by the TCEQ, the RRC has the responsibility for enforcing any violation of such standards resulting from activities regulated by the RRC. Texas Water Code, Chapter 26, does not require that discharges regulated by the RRC comply with regulations of the TCEQ that are not water quality standards. The TCEQ and the RRC may consult as necessary regarding application and interpretation of Texas Surface Water Quality Standards.(ii) Storm water. When required by federal law, authorization for storm water discharges that are under the jurisdiction of the RRC must be obtained through application for a National Pollutant Discharge Elimination System (NPDES) permit with the EPA and authorization from the RRC, as applicable.(I) Storm water associated with industrial activities. Where required by federal law, discharges of storm water associated with facilities and activities under the RRC's jurisdiction must be authorized by the EPA and the RRC, as applicable. Under 33 U.S.C. §1342(l)(2) and §1362(24), EPA cannot require a permit for discharges of storm water from "field activities or operations associated with {oil and gas} exploration, production, processing, or treatment operations, or transmission facilities" unless the discharge is contaminated by contact with any overburden, raw material, intermediate product, finished product, byproduct, or waste product located on the site of the facility. Under 16 TAC §3.8 (relating to Water Protection), the RRC prohibits operators from causing or allowing pollution of surface or subsurface water. Operators are encouraged to implement and maintain Best Management Practices (BMPs) to minimize discharges of pollutants, including sediment, in storm water to help ensure protection of surface water quality during storm events.(II) Storm water associated with construction activities. Where required by federal law, discharges of storm water associated with construction activities under the RRC's jurisdiction must be authorized by the EPA and the RRC, as applicable. Activities under RRC jurisdiction include construction of a facility that, when completed, would be associated with the exploration, development, or production of oil or gas or geothermal resources, such as a well site; treatment or storage facility; underground hydrocarbon or natural gas storage facility; reclamation plant; gas processing facility; compressor station; terminal facility where crude oil is stored prior to refining and at which refined products are stored solely for use at the facility; a carbon dioxide geologic storage facility under the jurisdiction of the RRC; and a gathering, transmission, or distribution pipeline that will transport crude oil or natural gas, including natural gas liquids, prior to refining of such oil or the use of the natural gas in any manufacturing process or as a residential or industrial fuel. The RRC also has jurisdiction over storm water from land disturbance associated with a site survey that is conducted prior to construction of a facility that would be regulated by the RRC. Under 33 U.S.C. §1342(l)(2) and §1362(24), EPA cannot require a permit for discharges of storm water from "field activities or operations associated with {oil and gas} exploration, production, processing, or treatment operations, or transmission facilities, including activities necessary to prepare a site for drilling and for the movement and placement of drilling equipment, whether or not such field activities or operations may be considered to be construction activities" unless the discharge is contaminated by contact with any overburden, raw material, intermediate product, finished product, byproduct, or waste product located on the site of the facility. Under 16 TAC §3.8 (relating to Water Protection), the RRC prohibits operators from causing or allowing pollution of surface or subsurface water. Operators are encouraged to implement and maintain BMPs to minimize discharges of pollutants, including sediment, in storm water during construction activities to help ensure protection of surface water quality during storm events.(III) Municipal storm water discharges. Storm water discharges from facilities regulated by the RRC located within an MS4 are not regulated by the TCEQ. However, a municipality may regulate storm water discharges from RRC sites into their MS4.(IV) Combined storm water. Except with regard to storage of oil, when a portion of a site is regulated by the RRC and the EPA, and a portion of a site is regulated by the TCEQ, storm water authorization must be obtained from the EPA and the RRC, as applicable, for the portion(s) of the site under RRC jurisdiction and from the TCEQ for the TCEQ regulated portion(s) of the site. Discharge of storm water from a terminal facility where crude oil is stored prior to refining and at which refined products are stored solely for use at the facility is under the jurisdiction of the RRC.(iii) State water quality certification. The RRC performs state water quality certifications, as authorized by the Clean Water Act (CWA) Section 401 (33 U.S.C. Section 1341) for activities that require a federal license or permit and that may result in any discharge to waters of the United States for those activities regulated by the RRC.(C) Injection wells. The RRC has jurisdiction over the drilling, construction, operation, and closure of the following injection wells.(i) Disposal wells. The RRC has jurisdiction under Texas Water Code, Chapter 27, over injection wells used to dispose of oil and gas waste. Texas Water Code, Chapter 27, defines "oil and gas waste" to mean "waste arising out of or incidental to drilling for or producing of oil, gas, or geothermal resources, waste arising out of or incidental to the underground storage of hydrocarbons other than storage in artificial tanks or containers, or waste arising out of or incidental to the operation of gasoline plants, natural gas processing plants, or pressure maintenance or repressurizing plants. The term includes but is not limited to salt water, brine, sludge, drilling mud, and other liquid or semi-liquid waste material." The term "waste arising out of or incidental to drilling for or producing of oil, gas, or geothermal resources" includes waste associated with transportation of crude oil or natural gas by pipeline pursuant to Texas Natural Resources Code, §91.101.(ii) Enhanced recovery wells. The RRC has jurisdiction over wells into which fluids are injected for enhanced recovery of oil or natural gas.(iii) Brine mining. Under Texas Water Code, §27.036, the RRC has jurisdiction over brine mining and may issue permits for injection wells.(iv) Geologic storage of carbon dioxide. Under Texas Water Code, §27.011 and §27.041, and subject to the review of the legislature based on the recommendations made in the preliminary report described by Section 10, Senate Bill No. 1387, Acts of the 81st Legislature, Regular Session (2009), the RRC has jurisdiction over geologic storage of carbon dioxide in, and the injection of carbon dioxide into, a reservoir that is initially or may be productive of oil, gas, or geothermal resources or a saline formation directly above or below that reservoir and over a well used for such injection purposes regardless of whether the well was initially completed for that purpose or was initially completed for another purpose and converted.(v) Hydrocarbon storage. The RRC has jurisdiction over wells into which fluids are injected for storage of hydrocarbons that are liquid at standard temperature and pressure.(vi) Geothermal energy. Under Texas Natural Resources Code, Chapter 141, the RRC has jurisdiction over injection wells for the exploration, development, and production of geothermal energy and associated resources.(vii) In situ tar sands. Under Texas Water Code, §27.035, the RRC has jurisdiction over the in situ recovery of tar sands and may issue permits for injection wells used for the in situ recovery of tar sands.(c) Definition of hazardous waste.(1) Under the Texas Health and Safety Code, §361.003(12), a "hazardous waste" subject to the jurisdiction of the TCEQ is defined as "solid waste identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. §6901, et seq.)." Similarly, under Texas Natural Resources Code, §91.601(1), "oil and gas hazardous waste" subject to the jurisdiction of the RRC is defined as an "oil and gas waste that is a hazardous waste as defined by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§6901, et seq.)."(2) Federal regulations adopted under authority of the federal Solid Waste Disposal Act, as amended by RCRA, exempt from regulation as hazardous waste certain oil and gas wastes. Under 40 Code of Federal Regulations (CFR) §261.4(b)(5), "drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas or geothermal energy" are described as wastes that are exempt from federal hazardous waste regulations.(3) A partial list of wastes associated with oil, gas, and geothermal exploration, development, and production that are considered exempt from hazardous waste regulation under RCRA can be found in EPA's "Regulatory Determination for Oil and Gas and Geothermal Exploration, Development and Production Wastes," 53 FedReg 25,446 (July 6, 1988). A further explanation of the exemption can be found in the "Clarification of the Regulatory Determination for Wastes from the Exploration, Development and Production of Crude Oil, Natural Gas and Geothermal Energy," 58 FedReg 15, 284 (March 22, 1993). The exemption codified at 40 CFR §261.4(b)(5) and discussed in the Regulatory Determination has been, and may continue to be, clarified in subsequent guidance issued by the EPA.(d) Jurisdiction over waste from specific activities.(1) Drilling, operation, and plugging of wells associated with the exploration, development, or production of oil, gas, or geothermal resources. Wells associated with the exploration, development, or production of oil, gas, or geothermal resources include exploratory wells, cathodic protection holes, core holes, oil wells, gas wells, geothermal resource wells, fluid injection wells used for secondary or enhanced recovery of oil or gas, oil and gas waste disposal wells, and injection water source wells. Several types of waste materials can be generated during the drilling, operation, and plugging of these wells. These waste materials include drilling fluids (including water-based and oil-based fluids), cuttings, produced water, produced sand, waste hydrocarbons (including used oil), fracturing fluids, spent acid, workover fluids, treating chemicals (including scale inhibitors, emulsion breakers, paraffin inhibitors, and surfactants), waste cement, filters (including used oil filters), domestic sewage (including waterborne human waste and waste from activities such as bathing and food preparation), and trash (including inert waste, barrels, dope cans, oily rags, mud sacks, and garbage). Generally, these wastes, whether disposed of by discharge, landfill, land farm, evaporation, or injection, are subject to the jurisdiction of the RRC. Wastes from oil, gas, and geothermal exploration activities subject to regulation by the RRC when those wastes are to be processed, treated, or disposed of at a solid waste management facility authorized by the TCEQ under Chapter 330 of this title (relating to Municipal Solid Waste) are, as defined in §330.3(148) of this title (relating to Definitions), "special wastes."(2) Field treatment of produced fluids. Oil, gas, and water produced from oil, gas, or geothermal resource wells may be treated in the field in facilities such as separators, skimmers, heater treaters, dehydrators, and sweetening units. Waste that results from the field treatment of oil and gas include waste hydrocarbons (including used oil), produced water, hydrogen sulfide scavengers, dehydration wastes, treating and cleaning chemicals, filters (including used oil filters), asbestos insulation, domestic sewage, and trash are subject to the jurisdiction of the RRC.(3) Storage of oil.(A) Tank bottoms and other wastes from the storage of crude oil (whether foreign or domestic) before it enters the refinery are under the jurisdiction of the RRC. In addition, waste resulting from storage of crude oil at refineries is subject to the jurisdiction of the TCEQ.(B) Wastes generated from storage tanks that are part of the refinery and wastes resulting from the wholesale and retail marketing of refined products are subject to the jurisdiction of the TCEQ.(4) Underground hydrocarbon storage. The disposal of wastes, including saltwater, resulting from the construction, creation, operation, maintenance, closure, or abandonment of an "underground hydrocarbon storage facility" is subject to the jurisdiction of the RRC, provided the terms "hydrocarbons" and "underground hydrocarbon storage facility" have the meanings set out in Texas Natural Resources Code, §91.201.(5) Underground natural gas storage. The disposal of wastes resulting from the construction, operation, or abandonment of an "underground natural gas storage facility" is subject to the jurisdiction of the RRC, provided that the terms "natural gas" and "storage facility" have the meanings set out in Texas Natural Resources Code, §91.173.(6) Transportation of crude oil or natural gas.(A) Jurisdiction over pipeline-related activities. The RRC has jurisdiction over matters related to pipeline safety for pipelines in Texas, as referenced in 16 TAC §8.1 (relating to General Applicability and Standards) pursuant to Chapter 121 of the Texas Utilities Code and Chapter 117 of the Texas Natural Resources Code. The RRC has jurisdiction over spill response and remediation of releases from pipelines transporting crude oil, natural gas, and condensate that originate from exploration and production facilities to the refinery gate. The RRC has jurisdiction over waste generated by construction and operation of pipelines used to transport crude oil, natural gas, and condensate on an oil and gas lease, and from exploration and production facilities to the refinery gate. The RRC is responsible for water quality certification issues related to construction and operation of pipelines used to transport crude oil, natural gas, and condensate on an oil and gas lease, and from exploration and production facilities to the refinery gate. The RRC has jurisdiction over waste generated by construction and operation of pipelines transporting carbon dioxide.(B) Crude oil and natural gas are transported by railcars, tank trucks, barges, tankers, and pipelines. The RRC has jurisdiction over waste from the transportation of crude oil by pipeline, regardless of the crude oil source (foreign or domestic) prior to arrival at a refinery. The RRC also has jurisdiction over waste from the transportation by pipeline of natural gas, including natural gas liquids, prior to the use of the natural gas in any manufacturing process or as a residential or industrial fuel. The transportation wastes subject to the jurisdiction of the RRC include wastes from pipeline compressor or pressure stations and wastes from pipeline hydrostatic pressure tests and other pipeline operations. These wastes include waste hydrocarbons (including used oil), treating and cleaning chemicals, filters (including used oil filters), scraper trap sludge, trash, domestic sewage, wastes contaminated with polychlorinated biphenyls (PCBs) (including transformers, capacitors, ballasts, and soils), soils contaminated with mercury from leaking mercury meters, asbestos insulation, transite pipe, and hydrostatic test waters.(C) The TCEQ has jurisdiction over waste from transportation of refined products by pipeline.(D) The TCEQ also has jurisdiction over wastes associated with transportation of crude oil and natural gas, including natural gas liquids, by railcar, tank truck, barge, or tanker.(7) Reclamation plants.(A) The RRC has jurisdiction over wastes from reclamation plants that process wastes from activities associated with the exploration, development, or production of oil, gas, or geothermal resources, such as lease tank bottoms. Waste management activities of reclamation plants for other wastes are subject to the jurisdiction of the TCEQ.(B) The RRC has jurisdiction over the conservation and prevention of waste of crude oil and therefore must approve all movements of crude oil-containing materials to reclamation plants. The applicable statute and regulations consist primarily of reporting requirements for accounting purposes.(8) Refining of oil.(A) The management of wastes resulting from oil refining operations, including spent caustics, spent catalysts, still bottoms or tars, and American Petroleum Institute (API) separator sludges, is subject to the jurisdiction of the TCEQ. The processing of light ends from the distillation and cracking of crude oil or crude oil products is considered to be a refining operation. The term "refining" does not include the processing of natural gas or natural gas liquids.(B) The RRC has jurisdiction over refining activities for the conservation and the prevention of waste of crude oil. The RRC requires that all crude oil streams into or out of a refinery be reported for accounting purposes. In addition, the RRC requires that materials recycled and used as a fuel, such as still bottoms or waste crude oil, be reported.(9) Natural gas or natural gas liquids processing plants (including gas fractionation facilities) and pressure maintenance or repressurizing plants. Wastes resulting from activities associated with these facilities include produced water, cooling tower water, sulfur bead, sulfides, spent caustics, sweetening agents, spent catalyst, waste hydrocarbons (including used oil), asbestos insulation, wastes contaminated with PCBs (including transformers, capacitors, ballasts, and soils), treating and cleaning chemicals, filters, trash, domestic sewage, and dehydration materials. These wastes are subject to the jurisdiction of the RRC under Texas Natural Resources Code, §1.101. Disposal of waste from activities associated with natural gas or natural gas liquids processing plants (including gas fractionation facilities), and pressure maintenance or repressurizing plants by injection is subject to the jurisdiction of the RRC under Texas Water Code, Chapter 27. However, until delegation of authority under RCRA to the RRC, the TCEQ shall have jurisdiction over wastes resulting from these activities that are not exempt from federal hazardous waste regulation under RCRA and that are considered hazardous under applicable federal rules.(10) Manufacturing processes.(A) Wastes that result from the use of natural gas, natural gas liquids, or products refined from crude oil in any manufacturing process, such as the production of petrochemicals or plastics, or from the manufacture of carbon black, are industrial wastes subject to the jurisdiction of the TCEQ. The term "manufacturing process" does not include the processing (including fractionation) of natural gas or natural gas liquids at natural gas or natural gas liquids processing plants.(B) The RRC has jurisdiction under Texas Natural Resources Code, Chapter 87, to regulate the use of natural gas in the production of carbon black.(C) Biofuels. The TCEQ has jurisdiction over wastes associated with the manufacturing of biofuels and biodiesel. TCEQ Regulatory Guidance Document RG-462 contains additional information regarding biodiesel manufacturing in the state of Texas.(11) Commercial service company facilities and training facilities.(A) The TCEQ has jurisdiction over wastes generated at facilities, other than actual exploration, development, or production sites (field sites), where oil and gas industry workers are trained. In addition, the TCEQ has jurisdiction over wastes generated at facilities where materials, processes, and equipment associated with oil and gas industry operations are researched, developed, designed, and manufactured. However, wastes generated from tests of materials, processes, and equipment at field sites are under the jurisdiction of the RRC.(B) The TCEQ also has jurisdiction over waste generated at commercial service company facilities operated by persons providing equipment, materials, or services (such as drilling and work over rig rental and tank rental; equipment repair; drilling fluid supply; and acidizing, fracturing, and cementing services) to the oil and gas industry. These wastes include the following wastes when they are generated at commercial service company facilities: empty sacks, containers, and drums; drum, tank, and truck rinsate; sandblast media; painting wastes; spent solvents; spilled chemicals; waste motor oil; and unused fracturing and acidizing fluids.(C) The term "commercial service company facility" does not include a station facility such as a warehouse, pipeyard, or equipment storage facility belonging to an oil and gas operator and used solely for the support of that operator's own activities associated with the exploration, development, or production activities.(D) Notwithstanding subparagraphs (A) - (C) of this paragraph, the RRC has jurisdiction over disposal of oil and gas wastes, such as waste drilling fluids and NORM-contaminated pipe scale, in volumes greater than the incidental volumes usually received at such facilities, that are managed at commercial service company facilities.(E) The RRC also has jurisdiction over wastes such as vacuum truck rinsate and tank rinsate generated at facilities operated by oil and gas waste haulers permitted by the RRC pursuant to 16 TAC §3.8(f) (relating to Water Protection).(12) Mobile offshore drilling units (MODUs). MODUs are vessels capable of engaging in drilling operations for exploring or exploiting subsea oil, gas, or mineral resources.(A) The RRC and, where applicable, the EPA, the U.S. Coast Guard, or the Texas General Land Office (GLO), have jurisdiction over discharges from an MODU when the unit is being used in connection with activities associated with the exploration, development, or production of oil or gas or geothermal resources, except that upon delegation to the TCEQ of NPDES authority for discharges into surface water in the state of produced water, hydrostatic test water, and gas plant effluent resulting from the activities described in Texas Water Code, §26.131(a), the TCEQ shall assume RRC's authority under this subsection.(B) The TCEQ and, where applicable, the EPA, the U.S. Coast Guard, or the GLO, have jurisdiction over discharges from an MODU when the unit is being serviced at a maintenance facility.(C) Where applicable, the EPA, the U.S. Coast Guard, or the GLO has jurisdiction over discharges from an MODU during transportation from shore to exploration, development or production site, transportation between sites, and transportation to a maintenance facility.(e) Interagency activities.(1) Recycling and pollution prevention.(A) The TCEQ and the RRC encourage generators to eliminate pollution at the source and recycle whenever possible to avoid disposal of wastes. Questions regarding source reduction and recycling may be directed to the TCEQ External Relations Division, or to the RRC. The TCEQ may require generators to explore source reduction and recycling alternatives prior to authorizing disposal of any waste under the jurisdiction of the RRC at a facility regulated by the TCEQ; similarly, the RRC may explore source reduction and recycling alternatives prior to authorizing disposal of any waste under the jurisdiction of the TCEQ at a facility regulated by the RRC.(B) The TCEQ External Relations Division and the RRC will coordinate as necessary to maintain a working relationship to enhance the efforts to share information and use resources more efficiently. The TCEQ External Relations Division will make the proper TCEQ personnel aware of the services offered by the RRC, share information with the RRC to maximize services to oil and gas operators, and advise oil and gas operators of RRC services. The RRC will make the proper RRC personnel aware of the services offered by the TCEQ External Relations Division, share information with the TCEQ External Relations Division to maximize services to industrial operators, and advise industrial operators of the TCEQ External Relations Division services.(2) Treatment of wastes under RRC jurisdiction at facilities authorized by the TCEQ under Chapter 334, Subchapter K of this title (relating to Storage, Treatment, and Reuse Procedures for Petroleum-Substance Contaminated Soil).(A) Soils contaminated with constituents that are physically and chemically similar to those normally found in soils at leaking underground petroleum storage tanks from generators under the jurisdiction of the RRC are eligible for treatment at TCEQ regulated soil treatment facilities once alternatives for recycling and source reduction have been explored. For the purpose of this provision, soils containing petroleum substance(s) as defined in §334.481 of this title (relating to Definitions) are considered to be similar, but drilling muds, acids, or other chemicals used in oil and gas activities are not considered similar. Generators under the jurisdiction of the RRC must meet the same requirements as generators under the jurisdiction of the TCEQ when sending their petroleum contaminated soils to soil treatment facilities under TCEQ jurisdiction. Those requirements are in §334.496 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste), except subsection (c) of this section which is not applicable, and §334.497 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators). RRC generators with questions on these requirements should contact the TCEQ.(B) Generators under RRC jurisdiction should also be aware that TCEQ regulated soil treatment facilities are required by §334.499 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Storage, Treatment, or Disposal Facilities) to maintain documentation on the soil sampling and analytical methods, chain-of-custody, and all analytical results for the soil received at the facility and transported off-site or reused on-site.(C) The RRC must specifically authorize management of contaminated soils under its jurisdiction at facilities authorized by the TCEQ under Chapter 334, Subchapter K of this title (relating to Storage, Treatment, and Reuse Procedures for Petroleum-Substance Contaminated Soil). The RRC may grant such authorizations by rule, or on an individual basis through permits or other written authorizations. (D) All waste, including treated waste, subject to the jurisdiction of the RRC and managed at facilities authorized by the TCEQ under Chapter 334, Subchapter K of this title will remain subject to the jurisdiction of the RRC. Such materials will be subject to RRC regulations regarding final reuse, recycling, or disposal.(E) TCEQ waste codes and registration numbers are not required for management of wastes under the jurisdiction of the RRC at facilities authorized by the TCEQ under Chapter 334, Subchapter K of this title.(3) Processing, treatment, and disposal of wastes under RRC jurisdiction at facilities authorized by the TCEQ.(A) As provided in this paragraph, waste materials subject to the jurisdiction of the RRC may be managed at solid waste facilities under the jurisdiction of the TCEQ once alternatives for recycling and source reduction have been explored. The RRC must specifically authorize management of wastes under its jurisdiction at facilities regulated by the TCEQ. The RRC may grant such authorizations by rule, or on an individual basis through permits or other written authorizations. In addition, except as provided in subparagraph (B) of this paragraph, the concurrence of the TCEQ is required to manage "special waste" under the jurisdiction of the RRC at a facility regulated by the TCEQ. The TCEQ's concurrence may be subject to specified conditions.(B) A facility under the jurisdiction of the TCEQ may accept, without further individual concurrence, waste under the jurisdiction of the RRC if that facility is permitted or otherwise authorized to accept that particular type of waste. The phrase "that type of waste" does not specifically refer to waste under the jurisdiction of the RRC, but rather to the waste's physical and chemical characteristics. Management and disposal of waste under the jurisdiction of the RRC is subject to TCEQ's rules governing both special waste and industrial waste.(C) If the TCEQ regulated facility receiving the waste does not have approval to accept the waste included in its permit or other authorization, individual written concurrences from the TCEQ shall be required to manage wastes under the jurisdiction of the RRC at TCEQ regulated facilities. Recommendations for the management of special wastes associated with the exploration, development, or production of oil, gas, or geothermal resources are found in TCEQ Regulatory Guidance document RG-3. (This is required only if the TCEQ regulated facility receiving the waste does not have approval to accept the waste included in its permit or other authorization provided by the TCEQ.) To obtain an individual concurrence, the waste generator must provide to the TCEQ sufficient information to allow the concurrence determination to be made, including the identity of the proposed waste management facility, the process generating the waste, the quantity of waste, and the physical and chemical nature of the waste involved (using process knowledge and/or laboratory analysis as defined in Chapter 335, Subchapter R of this title (relating to Waste Classification)). In obtaining TCEQ approval, generators may use their existing knowledge about the process or materials entering it to characterize their wastes. Material Safety Data Sheets, manufacturer's literature, and other documentation generated in conjunction with a particular process may be used. Process knowledge must be documented and submitted with the request for approval.(D) Domestic septage collected from portable toilets at facilities subject to RRC jurisdiction that is not mixed with other waste materials may be managed at a facility permitted by the TCEQ for disposal, incineration, or land application for beneficial use of such domestic septage waste without specific authorization from the TCEQ or the RRC. Waste sludge subject to the jurisdiction of the RRC may not be applied to the land at a facility permitted by the TCEQ for the beneficial use of sewage sludge or water treatment sludge.(E) TCEQ waste codes and registration numbers are not required for management of wastes under the jurisdiction of the RRC at facilities under the jurisdiction of the TCEQ. If a receiving facility requires a TCEQ waste code for waste under the jurisdiction of the RRC, a code consisting of the following may be provided:(i) the sequence number "RRCT";(ii) the appropriate form code, as specified in Chapter 335, Subchapter R, §335.521, Appendix 3 of this title (relating to Appendices); and(iii) the waste classification code "H" if the waste is a hazardous oil and gas waste, or "R" if the waste is a nonhazardous oil and gas waste.(F) If a facility requests or requires a TCEQ waste generator registration number for wastes under the jurisdiction of the RRC, the registration number "XXXRC" may be provided.(G) Wastes that are under the jurisdiction of the RRC need not be reported to the TCEQ.(4) Management of nonhazardous wastes under TCEQ jurisdiction at facilities regulated by the RRC. (A) Once alternatives for recycling and source reduction have been explored, and with prior authorization from the RRC, the following nonhazardous wastes subject to the jurisdiction of the TCEQ may be disposed of, other than by injection into a Class II well, at a facility regulated by the RRC; bioremediated at a facility regulated by the RRC (prior to reuse, recycling, or disposal); or reclaimed at a crude oil reclamation facility regulated by the RRC: nonhazardous wastes that are chemically and physically similar to oil and gas wastes, but excluding soils, media, debris, sorbent pads, and other clean-up materials that are contaminated with refined petroleum products.(B) To obtain an individual authorization from the RRC, the waste generator must provide the following information, in writing, to the RRC: the identity of the proposed waste management facility, the quantity of waste involved, a hazardous waste determination that addresses the process generating the waste and the physical and chemical nature of the waste, and any other information that the RRC may require. As appropriate, the RRC shall reevaluate any authorization issued pursuant to this paragraph.(C) Once alternatives for recycling and source reduction have been explored, and subject to the RRC's individual authorization, the following wastes under the jurisdiction of the TCEQ are authorized without further TCEQ approval to be disposed of at a facility regulated by the RRC, bioremediated at a facility regulated by the RRC, or reclaimed at a crude oil reclamation facility regulated by the RRC: nonhazardous bottoms from tanks used only for crude oil storage; unused and/or reconditioned drilling and completion/workover wastes from commercial service company facilities; used and/or unused drilling and completion/workover wastes generated at facilities where workers in the oil and gas exploration, development, and production industry are trained; used and/or unused drilling and completion/workover wastes generated at facilities where materials, processes, and equipment associated with oil and gas exploration, development, and production operations are researched, developed, designed, and manufactured; unless other provisions are made in the underground injection well permit used and/or unused drilling and completion wastes (but not workover wastes) generated in connection with the drilling and completion of Class I, III, and V injection wells; wastes (such as contaminated soils, media, debris, sorbent pads, and other cleanup materials) associated with spills of crude oil and natural gas liquids if such wastes are under the jurisdiction of the TCEQ; and sludges from washout pits at commercial service company facilities.(D) Under Texas Water Code, §27.0511(g), a TCEQ permit is required for injection of industrial or municipal waste as an injection fluid for enhanced recovery purposes. However, under Texas Water Code, §27.0511(h), the RRC may authorize a person to use nonhazardous brine from a desalination operation or nonhazardous drinking water treatment residuals as an injection fluid for enhanced recovery purposes without obtaining a permit from the TCEQ. The use or disposal of radioactive material under this subparagraph is subject to the applicable requirements of Texas Health and Safety Code, Chapter 401.(E) Under Texas Water Code, §27.026, by individual permit, general permit, or rule, the TCEQ may designate a Class II disposal well that has an RRC permit as a Class V disposal well authorized to dispose by injection nonhazardous brine from a desalination operation and nonhazardous drinking water treatment residuals under the jurisdiction of the TCEQ. The operator of a permitted Class II disposal well seeking a Class V authorization must apply to TCEQ and obtain a Class V authorization prior to disposal of nonhazardous brine from a desalination operation or nonhazardous drinking water treatment residuals. A permitted Class II disposal well that has obtained a Class V authorization from TCEQ under Texas Water Code, §27.026, remains subject to the regulatory requirements of both the RRC and the TCEQ. Nonhazardous brine from a desalination operation and nonhazardous drinking water treatment residuals to be disposed by injection in a permitted Class II disposal well authorized by TCEQ as a Class V injection well remain subject to the requirements of the Texas Health and Safety Code, the Texas Water Code, and the TCEQ's rules. The RRC and the TCEQ may impose additional requirements or conditions to address the dual injection activity under Texas Water Code, §27.026. (5) Drilling in landfills. The TCEQ will notify the Oil and Gas Division of the RRC and the landfill owner at the time a drilling application is submitted if an operator proposes to drill a well through a landfill regulated by the TCEQ. The RRC and the TCEQ will cooperate and coordinate with one another in advising the appropriate parties of measures necessary to reduce the potential for the landfill contents to cause groundwater contamination as a result of landfill disturbance associated with drilling operations. The TCEQ requires prior written approval before drilling of any test borings through previously deposited municipal solid waste under §330.15 of this title (relating to General Prohibitions), and before borings or other penetration of the final cover of a closed municipal solid waste landfill under §330.955 of this title (relating to Miscellaneous). The installation of landfill gas recovery wells for the recovery and beneficial reuse of landfill gas is under the jurisdiction of the TCEQ in accordance with Chapter 330, Subchapter I of this title (relating to Landfill Gas Management). Modification of an active or a closed solid waste management unit, corrective action management unit, hazardous waste landfill cell, or industrial waste landfill cell by drilling or penetrating into or through deposited waste may require prior written approval from TCEQ. Such approval may require a new authorization from TCEQ or modification or amendment of an existing TCEQ authorization.(6) Coordination of actions and cooperative sharing of information.(A) In the event that a generator or transporter disposes, without proper authorization, of wastes regulated by the TCEQ at a facility permitted by the RRC, the TCEQ is responsible for enforcement actions against the generator or transporter, and the RRC is responsible for enforcement actions against the disposal facility. In the event that a generator or transporter disposes, without proper authorization, of wastes regulated by the RRC at a facility permitted by the TCEQ, the RRC is responsible for enforcement actions against the generator or transporter, and the TCEQ is responsible for enforcement actions against the disposal facility.(B) The TCEQ and the RRC agree to cooperate with one another by sharing information. Employees of either agency who receive a complaint or discover, in the course of their official duties, information that indicates a violation of a statute, regulation, order, or permit pertaining to wastes under the jurisdiction of the other agency, will notify the other agency. In addition, to facilitate enforcement actions, each agency will share information in its possession with the other agency if requested by the other agency to do so.(C) The TCEQ and the RRC agree to work together at allocating respective responsibilities. To the extent that jurisdiction is indeterminate or has yet to be determined, the TCEQ and the RRC agree to share information and take appropriate investigative steps to assess jurisdiction.(D) For items not covered by statute or rule, the TCEQ and the RRC will collaborate to determine respective responsibilities for each issue, project, or project type.(E) The staff of the RRC and the TCEQ shall coordinate as necessary to attempt to resolve any disputes regarding interpretation of this MOU and disputes regarding definitions and terms of art.(7) Groundwater. (A) Notice of groundwater contamination. Under Texas Water Code, §26.408, effective September 1, 2003, the RRC must submit a written notice to the TCEQ of any documented cases of groundwater contamination that may affect a drinking water well.(B) Groundwater protection letters. The RRC provides letters of recommendation concerning groundwater protection. (i) For recommendations related to normal drilling operations, shot holes for seismic surveys, and cathodic protection wells, the RRC provides geologic interpretation identifying fresh water zones, base of usable-quality water (generally less than 3,000 mg/L total dissolved solids, but may include higher levels of total dissolved solids if identified as currently being used or identified by the Texas Water Development Board as a source of water for desalination), and include protection depths recommended by the RRC. The geological interpretation may include groundwater protection based on potential hydrological connectivity to usable-quality water.(ii) For recommendations related to injection, the RRC provides geologic interpretation of the base of the underground source of drinking water. The term "underground source of drinking water" is defined in 40 Code of Federal Regulations §146.3 (Federal Register, Volume 46, June 24, 1980). (8) Emergency and spill response.(A) The TCEQ and the RRC are members of the state's Emergency Management Council. The TCEQ is the state's primary agency for emergency support during response to hazardous materials and oil spill incidents. The TCEQ is responsible for state-level coordination of assets and services, and will identify and coordinate staffing requirements appropriate to the incident to include investigative assignments for the primary and support agencies.(B) Contaminated soil and other wastes that result from a spill must be managed in accordance with the governing statutes and regulations adopted by the agency responsible for the activity that resulted in the spill. Coordination of issues of spill notification, prevention, and response shall be addressed in the State of Texas Oil and Hazardous Substance Spill Contingency Plan and may be addressed further in a separate Memorandum of Understanding among these agencies and other appropriate state agencies.(C) The agency (TCEQ or RRC) that has jurisdiction over the activity that resulted in the spill incident will be responsible for measures necessary to monitor, document, and remediate the incident.(i) The TCEQ has jurisdiction over certain inland oil spills, all hazardous-substance spills, and spills of other substances that may cause pollution.(ii) The RRC has jurisdiction over spills or discharges from activities associated with the exploration, development, or production of crude oil, gas, and geothermal resources, and discharges from brine mining or surface mining.(D) If TCEQ or RRC field personnel receive spill notifications or reports documenting improperly managed waste or contaminated environmental media resulting from a spill or discharge that is under the jurisdiction of the other agency, they shall refer the issue to the other agency. The agency that has jurisdiction over the activity that resulted in the improperly managed waste, spill, discharge, or contaminated environmental media will be responsible for measures necessary to monitor, document, and remediate the incident.(9) Anthropogenic carbon dioxide storage. In determining the proper permitting agency in regard to a particular permit application for a carbon dioxide geologic storage project, the TCEQ and the RRC will coordinate by any appropriate means to review proposed locations, geologic settings, reservoir data, and other jurisdictional criteria specified in Texas Water Code, §27.041.(f) Radioactive material.(1) Radioactive substances. Under the Texas Health and Safety Code, §401.011, the TCEQ has jurisdiction to regulate and license:(A) the disposal of radioactive substances;(B) the processing or storage of low-level radioactive waste or NORM waste from other persons, except oil and gas NORM waste;(C) the recovery or processing of source material;(D) the processing of by-product material as defined by Texas Health and Safety Code, §401.003(3)(B); and(E) sites for the disposal of low-level radioactive waste, by-product material, or NORM waste.(2) NORM waste.(A) Under Texas Health and Safety Code, §401.415, the RRC has jurisdiction over the disposal of NORM waste that constitutes, is contained in, or has contaminated oil and gas waste. This waste material is called "oil and gas NORM waste." Oil and gas NORM waste may be generated in connection with the exploration, development, or production of oil or gas.(B) Under Texas Health and Safety Code, §401.412, the TCEQ has jurisdiction over the disposal of NORM that is not oil and gas NORM waste.(C) The term "disposal" does not include receipt, possession, use, processing, transfer, transport, storage, or commercial distribution of radioactive materials, including NORM. These non-disposal activities are under the jurisdiction of the Texas Department of State Health Services under Texas Health and Safety Code, §401.011(a).(3) Drinking water residuals. A person licensed for the commercial disposal of NORM waste from public water systems may dispose of NORM waste only by injection into a Class I injection well permitted under Chapter 331 of this title (relating to Underground Injection Control) that is specifically permitted for the disposal of NORM waste.(4) Management of radioactive tracer material.(A) Radioactive tracer material is subject to the definition of low-level radioactive waste under Texas Health and Safety Code, §401.004, and must be handled and disposed of in accordance with the rules of the TCEQ and the Department of State Health Services.(B) Exemption. Under Texas Health and Safety Code, §401.106, the TCEQ may grant an exemption by rule from a licensing requirement if the TCEQ finds that the exemption will not constitute a significant risk to the public health and safety and the environment.(5) Coordination with the Texas Radiation Advisory Board. The RRC and the TCEQ will consider recommendations and advice provided by the Texas Radiation Advisory Board that concern either agency's policies or programs related to the development, use, or regulation of a source of radiation. Both agencies will provide written response to the recommendations or advice provided by the advisory board.(6) Uranium exploration and mining.(A) Under Texas Natural Resources Code, Chapter 131, the RRC has jurisdiction over uranium exploration activities.(B) Under Texas Natural Resources Code, Chapter 131, the RRC has jurisdiction over uranium mining, except for in situ recovery processes.(C) Under Texas Water Code, §27.0513, the TCEQ has jurisdiction over injection wells used for uranium mining.(D) Under Texas Health and Safety Code, §401.2625, the TCEQ has jurisdiction over the licensing of source material recovery and processing or for storage, processing, or disposal of by-product material.(g) Effective date. This Memorandum of Understanding, as of its July 15, 2020, effective date, shall supersede the prior Memorandum of Understanding among the agencies, dated May 1, 2012.</content><note type="source"><p>Source Note: The provisions of this §7.117 adopted to be effective July 15, 2020, 45 TexReg 4341.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.118"><num value="7.118">§7.118</num><heading>Memorandum of Understanding between the Texas Department of Health and the Texas Natural Resource Conservation Commission Regarding Radiation Control Functions</heading><content>The Memorandum of Understanding between the Texas Department of Health and the Texas Natural Resource Conservation Commission regarding radiation control functions and mutual cooperation is adopted by reference as in complete text in Texas Department of Health rule 25 TAC §289.101 (Memorandum of Understanding between the Texas Department of Health and the Texas Natural Resource Conservation Commission Regarding Radiation Control Functions). If a copy of this document cannot be obtained from the Internet, a copy can be requested from the Texas Natural Resource Conservation Commission, Chief Clerk's Office, P.O. Box 13087, Austin, Texas 78711-3087, (512) 239-3300.</content><note type="source"><p>Source Note: The provisions of this §7.118 adopted to be effective November 29, 1998, 23 TexReg 11824.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.119"><num value="7.119">§7.119</num><heading>Memorandum of Understanding Between the Texas Department of Transportation and the Texas Commission on Environmental Quality</heading><content>The commission adopts by reference the rules of the Texas Department of Transportation in 43 TAC §§2.301 - 2.308 (relating to Memorandum of Understanding with the Texas Commission on Environmental Quality) effective March 20, 2019.</content><note type="source"><p>Source Note: The provisions of this §7.119 adopted to be effective May 2, 2002, 27 TexReg 3560; amended to be effective September 26, 2013, 38 TexReg 6214; amended to be effective August 22, 2019, 44 TexReg 4318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.121"><num value="7.121">§7.121</num><heading>Adoption by Reference</heading><content>(a) The Texas Natural Resource Conservation Commission adopts by reference a memorandum of understanding between the commission and the Attorney General of Texas. The memorandum contains the commission's and the Attorney General's interpretation concerning intervention in the civil enforcement process under the Texas Solid Waste Disposal Act.(b) Copies of the memorandum of understanding are available upon request from the Policy and Regulations Division, Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711-3087.(c) The effective date of the memorandum of understanding is October 9, 1993.</content><note type="source"><p>Source Note: The provisions of this §7.121 adopted to be effective September 5, 1999, 24 TexReg 6756.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.122"><num value="7.122">§7.122</num><heading>Adoption of Memorandum of Understanding Between the Texas Natural Resource Conservation Commission (commission) and the Texas Department of Health (TDH) Regarding Emissions Related to Asbestos Demolition and Renovation Activities</heading><content>(a) The Texas Natural Resource Conservation Commission adopts a memorandum of understanding (MOU) between the Texas Department of Health (TDH) and the Texas Natural Resource Conservation Commission (TNRCC). The memorandum contains the agreement of the TNRCC to inspect asbestos disposal sites under its jurisdiction for conformance with 40 CFR Part 61, Subpart M, §61.154 and provide copies of inspection and enforcement documentation to the TDH. This effort will support the TDH in the regulation of emissions related to asbestos demolition and renovation activities per 40 CFR Part 61, Subpart M.(b) Need for agreement. Section 1 of HB 1680, passed by the 73rd Legislature, 1993, transferred responsibility for emissions related to asbestos demolition and renovation activities to the Texas Department of Health (TDH). It also required the TDH and the Texas Natural Resource Conservation Commission (TNRCC) to adopt, by rule, a joint memorandum of understanding concerning the inspection of solid waste facilities that receive asbestos.(c) The TDH will:(1) Maintain overall responsibility for the asbestos demolition and renovation activities related to 40 Code of Federal Regulations (CFR), Part 61, Subpart M, §§61.140, 61.141, 61.143, 61.145, 61.146, 61.148, 61.150, 61.152, and 61.157.(2) Negotiate with the Environmental Protection Agency (EPA) on the work to be performed in agreement with TNRCC.(3) Provide funding to pay for initial inspector training in Fiscal Year 1995.(4) Report to the EPA on the number of asbestos disposal site inspections performed by TNRCC.(d) The TNRCC will:(1) Maintain an up-to-date listing of municipal landfills authorized to accept regulated asbestos and provide an up-to-date copy to the TDH.(2) Inspect asbestos disposal sites for conformance with 40 CFR Part 61, Subpart M, §61.154. The TDH will be notified within 30 days that an inspection has been performed by TNRCC and will be provided a copy of the inspection results within 60 days.(3) Perform the number of inspections negotiated between the TDH and the EPA related to 40 CFR §61.154.(4) Pursue all enforcement action related to §61.154 violations and provide notification to the TDH within 30 days of the inspection if a violation will be issued and provide to the TDH a copy of the Notice of Violation within 60 days.(5) Provide copies of all applicable documentation related to 40 CFR §61.154 to: Texas Department of Health, Division of Occupational Health, 1100 West 49th, Austin, TX 78756. The memorandum contains the agreement of the TNRCC to inspect asbestos disposal sites under its jurisdiction for conformance with 40 CFR Part 61, Subpart M, §61.154 and provide copies of inspection and enforcement documentation to the TDH. This effort will support the TDH in the regulation of emissions related to asbestos demolition and renovation activities per 40 CFR Part 61, Subpart M.(e) The effective date of the MOU is May 3, 1995.</content><note type="source"><p>Source Note: The provisions of this §7.122 adopted to be effective September 5, 1999, 24 TexReg 6756.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.123"><num value="7.123">§7.123</num><heading>Memorandum of Understanding between the Texas Natural Resource Conservation Commission and the Texas Department of Health concerning Special Wastes from Health Care Related Facilities</heading><content>(a) Authority concerning special wastes from health care related facilities. Texas Natural Resource Conservation Commission and the Texas Department of Health, hereinafter "agencies," agree that pursuant to Texas Water Code, §5.012; Texas Health and Safety Code, Chapter 361; and Texas Health and Safety Code, §12.001, §12.032, §§81.081-81.092, §142.012, §241.026, §243.009, §244.009, §245.009, §245.010, §694.001, and §773.050, both agencies possess authority regarding special waste from health care related facilities. The agencies also agree that special expertise resides in each agency related to its area of authority and responsibility. The Texas Natural Resource Conservation Commission possesses authority over the treatment, handling, storage, processing and/or disposal of these wastes, including enforcement authority. The Texas Department of Health possesses authority over the approval of methods for the treatment of special waste from health care related facilities, identifying entities that are subject to its approval provisions and the orderly application of its approval provisions to the covered entities.(b) Understanding concerning special waste from health care related facilities.(1) The Texas Natural Resource Conservation Commission will:(A) keep the Texas Department of Health informed of any need to amend the Texas Natural Resource Conservation Commission rules related to special waste from health care related facilities, and, if needed, will work closely with the Texas Department of Health to revise its rules;(B) inform the Texas Department of Health of all treatment technologies, equipment or processes that fail to meet the Department of Health's Performance Standards;(C) notify the Texas Department of Health concerning formal enforcement actions that involve treatment technologies, equipment or processes;(D) allow the Texas Department of Health's approved methods for the treatment of special waste from health care related facilities to be used to process said waste in Municipal Solid Waste Type V facilities;(E) allow special wastes from health care related facilities that have been treated by a Texas Department of Health approved process to be disposed of at Municipal Solid Waste Type I facilities; and(F) apply the Texas Department of Health's standards for special waste from health care- related facilities.(2) The Texas Department of Health will:(A) keep the Texas Natural Resource Conservation Commission informed of any need to amend the Texas Department of Health Rules for Special Waste from Health Care Related Facilities, and, if needed, will work closely with the Texas Natural Resource Conservation Commission to revise its rules;(B) provide the Texas Natural Resource Conservation Commission with a listing of the approved alternative treatment technologies by manufacturer, model identification, and other specifics as needed;(C) upon request, provide the Texas Natural Resource Conservation Commission with documentation provided by the manufacturers of commercially-available technologies, equipment, or processes approved for the treatment of special waste from health care- related facilities; and(D) provide the Texas Natural Resource Conservation Commission with a listing of the waste categories that may be treated with each approved alternative technology.(c) Disclaimer. This Memorandum of Understanding is being entered into by the Texas Natural Resource Conservation Commission and the Texas Department of Health, and is not intended to affect the jurisdiction of any other governmental entities.</content><note type="source"><p>Source Note: The provisions of this §7.123 adopted to be effective September 5, 1999, 24 TexReg 6756.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.124"><num value="7.124">§7.124</num><heading>Natural Resource Trustees Memorandum of Understanding</heading><content>(a) Purpose. The Texas Risk Reduction Program (TRRP) rules (30 Texas Administrative Code (TAC) Chapter 350) and the preamble to those rules (24 TexReg 7436) reference certain interactions between the Texas Natural Resource Conservation Commission (TNRCC) and the natural resource trustees (Trustees) in regard to an ecological risk assessment and an ecological services analysis. The purpose of this memorandum of understanding (MOU) is to facilitate these interactions between the TNRCC and the Trustees in both these processes. In addition, the parties recognize the following as pertinent to the development of this MOU. (1) The TNRCC is the agency of the State of Texas given the primary responsibility for implementing the constitution and laws of the state relating to the conservation of natural resources and the protection of the environment. (2) As public trustees for natural resources, the Trustees have statutory authority to pursue claims for injury to, destruction of, or loss of natural resources as a result of a release of a hazardous substance or a discharge of oil, seek restoration or replacement of such natural resources, and pursue recovery of reasonable assessment costs. (3) Due to some dependent and even overlapping responsibilities, it is beneficial for the TNRCC and the Trustees to coordinate on the performance of certain tasks concerning the ecological risk assessment and ecological services analysis. (4) Integration of natural resource damages considerations into risk reduction decisions may efficiently and cost effectively resolve certain natural resource damages liability and alleviate the need for further investigations or legal proceedings. (b) Parties. The parties to this MOU are as follows: (1) TNRCC, both as administrator of TRRP and a natural resource trustee; (2) Texas Parks and Wildlife Department, solely as a natural resource trustee; (3) Texas General Land Office, solely as a natural resource trustee; (4) National Oceanic and Atmospheric Administration of the United States Department of Commerce, solely as a natural resource trustee; and (5) United States Department of the Interior, solely as a natural resource trustee. (c) Authorities. (1) The Trustees enter into this MOU in accordance with the legal authorities provided to each Trustee by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 United States Code (USC) §§9601 et seq.; the Clean Water Act (CWA), 33 USC §§1251 et seq.; the Oil Pollution Act of 1990 (OPA), 33 USC §§2701 et seq.; the National Contingency Plan, 40 Code of Federal Regulations (CFR) Part 300; the Natural Resource Damage Assessment Regulations, 43 CFR Part 11; and 15 CFR Part 990; and any other applicable laws or authorities. (2) The State of Texas Trustees also enter into this MOU in accordance with the legal authorities provided by the Texas Natural Resources Code, Oil Spill Prevention and Response Act of 1991, §40.107; the Texas Natural Resource Damage Assessment Regulations, 31 TAC Chapter 20; and any other applicable laws or authorities. (3) The TNRCC additionally enters into this MOU in accordance with the legal authority provided to it by the Texas Water Code, §5.104 and Texas Health and Safety Code, §361.016. (d) Acronyms. (1) COCs--chemicals of concern; (2) CFR--Code of Federal Regulations; (3) CERCLA--Comprehensive Environmental Response, Compensation, and Liability Act; (4) CWA--Clean Water Act; (5) LOAEL--lowest observed adverse effect level; (6) MOA--memorandum of agreement; (7) MOU--memorandum of understanding; (8) NOAEL--no observed adverse effect level; (9) OPA--Oil Pollution Act of 1990; (10) PCLs--protective concentration levels; (11) TAC--Texas Administrative Code; (12) TNRCC--Texas Natural Resource Conservation Commission; (13) TRRP--Texas Risk Reduction Program; (14) TNRCC PM--Texas Natural Resource Conservation Commission Remedial/Corrective Actions Project Manager; and (15) TTT--Trustee technical team. (e) Definitions. Any words not specifically defined herein which are defined in 30 TAC §350.4, shall have the same meaning as defined in that section. (1) Person--An individual, corporation, organization, government, or governmental subdivision or agency, business trust, partnership, association, or any other legal entity utilizing the TRRP rules or any other equivalent TNRCC rules. (2) Paragraph 7--30 TAC §350.77(c)(7) corresponds to a point in the Tier 2 screening-level ecological risk assessment where the initial risk estimate is refined based on the use of less conservative exposure assumptions. Paragraph 7 is a requirement that the person must perform as part of the Tier 2 screening-level ecological risk assessment if the assessment progresses past 30 TAC §350.77(c)(6). Paragraph 7 reads as follows: (The person shall:) "...justify the use of less conservative assumptions to adjust the exposure and repeat the hazard quotient exercise in paragraph (6) of this subsection, once again eliminating COCs that pose no unacceptable risk and adding comparisons to the LOAELs for those COCs indicating a potential risk (i.e., NOAEL hazard quotient >1); however, when multiple members of a class of COCs are present which exert additive effects, it is also appropriate to utilize an ecological hazard index methodology (if all COCs are eliminated at this point, the ecological risk assessment process ends and the items listed in paragraphs (8) - (9) of this subsection are not required);" Any reference in this MOU to Paragraph 7 shall not only include the current 30 TAC §350.77(c)(7) but also the point at which the equivalent actions occur under other TNRCC risk reduction rules in the event that TRRP is amended or replaced and the specific reference is revised. (3) Trustees--The federal agencies as designated by the President of the United States and the state agencies as designated by the Governor of the State of Texas pursuant to the OPA and CERCLA to act on behalf of the public as trustees of natural resources (e.g., water, air, land, wildlife). (4) Parties--The signatories to this MOU as specified in subsection (b) of this MOU. (f) Trustee contacts. The TNRCC Natural Resource Trustee Program (TNRCC Trustee) shall designate a primary TNRCC Trustee contact in writing to the other Trustees no later than ten calendar days after the effective date of this MOU. The TNRCC shall designate a secondary TNRCC Trustee contact in the initial notifications of both an ecological risk assessment and an ecological services analysis. Each of the other Trustees shall designate a primary and a secondary contact in writing to the other Trustees no later than ten calendar days after the effective date of this MOU. Initial notifications and all subsequent electronic mail correspondence shall be sent to both the primary and secondary contacts for each Trustee. The TNRCC Trustee shall send copies of pertinent documents to the primary contacts by regular mail (unless an alternate contact or method is identified in advance). A Trustee may change its primary or secondary contact by providing the other Trustees not less than ten calendar days written notice of such change. (g) Ecological risk assessment process. The preamble to TRRP rules (24 TexReg 7455) states that the Trustees may choose to participate in the ecological risk assessment process to ensure that natural resources under their jurisdiction are adequately protected. The preamble also states that the TNRCC will notify the Trustees of affected property with chemicals of concern (COCs) which remain after a particular stage of development within the Tier 2 screening-level ecological risk assessment. The purpose of an ecological risk assessment is to characterize the ecological setting of the affected property, identify complete or reasonably anticipated to be completed exposure pathways and representative ecological receptors, scientifically eliminate COCs that pose no unacceptable risk, and develop protective concentration levels (PCLs) for selected ecological receptors where warranted. The parties agree that an ecological risk assessment should be conducted in a manner that is designed to result in the protection of ecological receptors that may be subject to management by federal and state agencies. Furthermore, the Trustees acknowledge that the potential for continuing injury to ecological resources should be negligible at sites where the remedial decisions were based on appropriate application of the proposed ecological risk assessment process. (1) Initial notification. After the TNRCC learns through a person's submittal that the ecological risk assessment at an affected property has progressed to Paragraph 7 and prior to approval of the ecological risk assessment by the TNRCC, the TNRCC Trustee shall provide timely notification to the other Trustees. The parties agree that further evaluation of ecological risk at an affected property is not warranted for purposes of making response or corrective action decisions under the TRRP rules when: 1) an appropriately applied ecological risk assessment is conducted consistent with the most recent TNRCC guidance on the subject at the time the ecological risk assessment is performed; and 2) the affected property does not progress to Paragraph 7. (A) Method of initial notification. Notification by the TNRCC Trustee shall be provided via electronic mail, or via another mutually agreed upon method, to the primary and secondary contacts for each Trustee. (B) Content of initial notification. The initial notification shall include the affected property name, location, status of the ecological risk assessment, and to the extent practical, the type of habitat, receptors at risk, COCs, and other relevant information necessary to allow the Trustees to evaluate their level of interest in the affected property. The TNRCC secondary contact, the TNRCC ecological risk assessor, and the deadline constraints of the TNRCC remedial/corrective actions project manager (TNRCC PM) shall also be provided in the initial notification. (C) Trustee response to initial notification. A written response (electronic mail is acceptable) from each Trustee to the initial notification must be provided to both the primary and secondary TNRCC Trustee contacts within five working days of the initial notification. This response shall specifically state the Trustee's intent as to whether or not the Trustee chooses to participate in the ecological risk assessment process. In the event that any Trustee fails to respond within the five working days, the TNRCC will proceed as if the Trustee chose not to participate in the ecological risk assessment process for that affected property. Subsection (j) of this MOU explains how a Trustee may enter the process at a later date. (2) Documents. After the timely receipt of a Trustee's written intent to participate in the ecological risk assessment process, the TNRCC Trustee shall send copies of pertinent documents to the primary contacts by regular mail (unless an alternate contact or method is identified in advance). The TNRCC Trustee shall provide the primary and secondary contacts with electronic mail notification (unless an alternate method of notification has been mutually agreed to in advance) that the documents have been mailed. The TNRCC shall provide documents in a timely manner to ensure that the Trustees have the maximum time available for the review of documents. The TNRCC Trustee shall coordinate the review of ecological risk assessment work plans, reports, and other relevant documents with the Trustees. (3) Trustee comments. Unless otherwise mutually agreed, the participating Trustees shall submit a unified set of written comments, if any, on the ecological risk assessment to the TNRCC ecological risk assessor. Trustee comments on ecological risk assessment documents must be technically defensible and relevant to the ecological risk assessment process. (A) Deadline for comments and extensions. (i) The Trustees shall have 20 calendar days from the date of postmark on any documents received to respond to both the TNRCC Trustee contacts with comments. This time period may be reduced to coincide with a deadline of less than 20 calendar days if necessary to meet the TNRCC PM's deadline. In the event that a greater period of time is available, as determined by the TNRCC PM, an extended deadline shall be provided to the Trustees. (ii) The Trustees may request an extension of the comment period of up to seven calendar days by writing (electronic mail is acceptable) to both the TNRCC Trustee contacts not less than three calendar days prior to the comment deadline. The TNRCC may, in its sole discretion, grant or deny such requests for extensions. The TNRCC will respond to all participating Trustees regarding such requests within 24 hours after receipt. If the Trustees do not receive a response from the TNRCC, the request for an extension is presumed to be denied. (iii) In the event that any Trustee fails to provide comments within the prescribed deadline (including any extension), the TNRCC will proceed as if the Trustee has no comments. (B) Reconciliation of comments. Prior to submitting comments to the TNRCC ecological risk assessor, the participating Trustees shall first coordinate all comments among themselves and provide a unified Trustee response through a mutually agreed upon Trustee representative. In the event that the TNRCC ecological risk assessor or TNRCC PM disagrees with any comments provided by the Trustees, the TNRCC will make diligent efforts to reach resolution between the parties. The TNRCC ecological risk assessor shall be responsible for coordinating the resolution of conflicting comments and shall schedule and coordinate comment resolution meetings as appropriate. Each participating Trustee's primary contact shall be copied on all ecological risk assessment related correspondence to the person and shall be provided copies of all ecological risk assessment related correspondence from the person to the TNRCC. In the event that differences cannot be resolved, the Trustees maintain the right to independently provide comments to the TNRCC PM and/or person conducting the ecological risk assessment, either as a unified group of two or more Trustees or as a single Trustee. (C) Recognition of comments. The TNRCC ecological risk assessor shall evaluate the Trustee comments and the TNRCC PM shall incorporate them into the TNRCC's response to the person, as appropriate. The TNRCC shall use its regulatory authority to ensure that the incorporated Trustee comments are recognized in the development of the ecological risk assessment. If any Trustee comments are not incorporated, the Trustees shall be informed. (4) Coordination of meetings. After the timely receipt of a Trustee's written intent to participate in the ecological risk assessment process, the TNRCC shall, to the extent practical, coordinate with the Trustees concerning their availability at least ten calendar days in advance of meetings concerning the ecological risk assessment. The TNRCC shall provide the Trustees notification of the ecological risk assessment meetings via electronic mail or via another mutually agreed upon method. The TNRCC and the Trustees shall work together to ensure that all parties to this MOU which are participating in the ecological risk assessment process have input into that process and that reasonable timelines are established and met to ensure that Trustee involvement in the ecological risk assessment does not impede progression of the ecological risk assessment. In the event that any participating Trustee is unable to attend a meeting concerning the ecological risk assessment, any absent Trustee shall contact the other Trustees to obtain information regarding the meeting, and if necessary, shall contact the TNRCC ecological risk assessor within a reasonable time after the meeting to be briefed on the issues discussed. (h) Ecological services analysis process. The TRRP rules require that the TNRCC consult with the Trustees prior to approval of a person's request to conduct an ecological services analysis (30 TAC §350.33(a)(3)(B) and §350.77(f)(2)). Furthermore, TRRP rules also require the person to conduct any compensatory ecological restoration and other activities associated with the ecological services analysis with the approval of and in cooperation with the Trustees (30 TAC §350.33(a)(3)(B)). The parties agree that an ecological services analysis must be conducted whenever concentrations of COCs which exceed ecological PCLs are proposed to be left in place with the potential for continuing exposure in accordance with 30 TAC §350.33(a)(3)(B). (1) Consultation on person's request to perform an ecological services analysis. Although the following sets forth a separate process for consultation on a person's request to perform an ecological services analysis, subsection (i) of this MOU explains how the processes under subsections (g) and (h)(1) of this MOU may be combined to achieve efficiencies. (A) Notification. After the TNRCC receives a person's written request to perform an ecological services analysis, the TNRCC Trustee shall provide timely notification to the other Trustees. (i) Method of notification. Notification by the TNRCC Trustee shall be provided via electronic mail, or via another mutually agreed upon method, to the primary and secondary contacts for each Trustee. (ii) Content of notification. The notification shall include the affected property name, location, the fact that the person is requesting to perform an ecological services analysis, and to the extent practical, the type of habitat, receptors at risk, COCs, and other relevant information necessary to evaluate the level of interest in the affected property. The TNRCC secondary contact, the TNRCC ecological risk assessor, and the deadline constraints of the TNRCC PM shall also be provided in the notification. (iii) Trustee response to notification. A written response (electronic mail is acceptable) from each Trustee to the notification must be provided to both the TNRCC Trustee contacts within five working days of the notification. This response shall specifically state the Trustee's intent as to whether or not the Trustee chooses to be consulted on the person's request to perform an ecological services analysis. In the event that any Trustee fails to respond within the five working days, the TNRCC will proceed as if the Trustee chose not to participate in the consultation on the person's request to perform an ecological services analysis. Subsection (j) of this MOU explains how a Trustee may enter the process at a later date. (B) Documents and other information. After the timely receipt of a Trustee's written intent to be consulted on the person's request to perform an ecological services analysis, the TNRCC Trustee shall send copies of pertinent documents to the primary contacts by regular mail (unless an alternate contact or method is identified in advance). The TNRCC Trustee shall provide the primary and secondary contacts with electronic mail notification that the documents have been mailed. (i) The TNRCC shall provide documents in a timely manner to ensure that the Trustees have the greatest time available for the review of documents. The TNRCC Trustee shall coordinate the review of such documents with the Trustees. (ii) Any participating Trustee may make a request for additional information not less than three calendar days prior to the comment deadline, but such request must be very specific as to the type of information requested. (C) Trustee comments. Unless otherwise mutually agreed, the participating Trustees shall submit a unified set of written comments, if any, on the person's request to perform an ecological services analysis to the TNRCC ecological risk assessor. Trustee comments must be technically defensible and relevant to the ecological services analysis process. Such Trustee responses shall specifically include a statement of each participating Trustee's recommendation for approval or disapproval of the person's request to perform an ecological services analysis. If feasible, the Trustee responses shall also include any response action recommendations for the affected property. If the person's request to perform an ecological services analysis is not recommended for approval by any Trustee, a reasoned explanation must be provided. (i) Deadline for comments and extensions. The Trustees shall have 20 calendar days from the date of postmark on any documents received to respond to the TNRCC primary and secondary contacts with comments. The TNRCC may request that the Trustees respond within a shorter time. In the event that a greater period of time is available, as determined by the TNRCC PM, an extended deadline shall be provided to the Trustees. The Trustees may request an extension of the comment period of up to seven calendar days by writing (electronic mail is acceptable) to the TNRCC primary and secondary contacts not less than three calendar days prior to the comment deadline. The TNRCC may, in its sole discretion, grant or deny such requests for extensions. The TNRCC will respond to all participating Trustees regarding such requests within 24 hours after receipt. If the Trustees do not receive a response from the TNRCC, the request for an extension is presumed to be denied. In the event that any Trustee fails to provide comments within the prescribed deadline (including any extension), the TNRCC will proceed as if the Trustee concurs with the TNRCC's decision on the person's request to perform an ecological services analysis. (ii) Reconciliation of comments. Prior to submitting comments to the TNRCC, the participating Trustees shall first coordinate all comments among themselves and provide a unified Trustee response through a mutually agreed upon Trustee representative. In the event that the TNRCC ecological risk assessor or TNRCC PM disagrees with any comments provided by the Trustees, the TNRCC shall make diligent efforts to reach resolution between the parties. The TNRCC ecological risk assessor shall be responsible for coordinating the informal resolution of conflicting comments and shall schedule and coordinate comment resolution meetings as appropriate. Each participating Trustee's primary contact shall be copied on all ecological services analysis related correspondence to the person and shall be provided copies of all ecological services analysis related correspondence from the person to the TNRCC. In the event that differences cannot be resolved, the Trustees maintain the right to independently provide comments to the TNRCC PM and/or person requesting to conduct the ecological services analysis, either as a unified group of two or more Trustees or as a single Trustee. (iii) Recognition of comments. The TNRCC ecological risk assessor shall evaluate the Trustee comments and the TNRCC PM shall incorporate them into the TNRCC's response to the person, as appropriate. The TNRCC PM shall inform the person in writing of the results of the TNRCC/Trustee consultation and shall copy the Trustees on such correspondence. If any Trustee comments are not incorporated, the Trustees shall be informed. (D) Coordination of meetings. After the timely receipt of a Trustee's written intent to participate in the consultation on the person's request to perform an ecological services analysis, the TNRCC shall, to the extent practical, coordinate with the Trustees concerning their availability at least ten calendar days in advance of meetings concerning the person's request to perform an ecological services analysis. The TNRCC shall provide the Trustees notification of these meetings via electronic mail or via another mutually agreed upon method. The TNRCC and the Trustees shall work together to ensure that all parties to this MOU which are participating in the ecological services analysis process have input into that process and that reasonable time lines are established and met to ensure that Trustee involvement in the ecological services analysis does not impede progression of the ecological services analysis. In the event that any participating Trustee is unable to attend a meeting concerning the ecological services analysis, any absent Trustee shall contact the other Trustees to obtain information regarding the meeting and if necessary, shall contact the TNRCC ecological risk assessor within a reasonable time after the meeting to be briefed on the issues discussed. (2) Ecological services analysis cooperation and approval process. To enhance the coordination between the Trustees and the person and provide efficiencies in the development of the ecological services analysis, the Trustees will initiate a dialogue with the person in a timely manner to establish the nature and scope of a cooperative ecological services analysis. The Trustees will maintain open communications with the person and actively participate in the entire ecological services analysis. (A) Trustee interaction. Unless otherwise specified herein, cooperation between the Trustees in the development, review, and approval of the ecological services analysis shall be consistent with the September 1995 Memorandum of Agreement between the Trustees. The Trustees shall strive for consensus on all decisions related to the development and implementation of the ecological services analysis. The Trustees shall coordinate their efforts to ensure a single unified Trustee position is provided on all written comments/statements to the person. (B) Trustee technical team (TTT). For each affected property involving significant participation by two or more Trustees, the Trustees shall create a TTT to which a representative shall be designated by each Trustee. The Trustees agree to designate representatives to the TTT who, at a minimum, have: 1) the level of knowledge and expertise needed to effectively guide the ecological services analysis process; and 2) the level of authority necessary to make decisions on issues presented to the TTT. The TTT shall be responsible for, among other things, communications with the person, outlining the scope and objectives of the ecological services analysis with the person, identifying additional data needs, reviewing and approving ecological services analysis reports and work plans, overseeing implementation of such plans, and certifying the satisfactory completion of the compensatory ecological restoration, where appropriate. The TTT may take any other actions as necessary to carry out its duties under this MOU. The TNRCC Trustee shall act as Trustee team leader unless otherwise agreed to by all Trustees. The Trustee team leader shall be responsible for, among other things, the coordination and monitoring of the progress of the development of technical comments, and implementation of the ecological services analysis. The Trustee team leader shall also be responsible for the scheduling of meetings of the TTT and notifying TTT members of those meetings on a timely basis, preparing agendas for those meetings, acting as a central contact point for the TTT, and establishing and maintaining records and relevant documents related to the ecological services analysis. The Trustee team leader may delegate any of his or her duties to another Trustee with the concurrence of the TTT. The duties of the Trustee team leader do not provide the Trustee team leader with any decision-making rights beyond those normally held by each Trustee member of the TTT. (i) Approval and performance of the ecological services analysis. The Trustees agree that the TTT shall act timely to either approve the ecological services analysis or disapprove with comments which may include a recommendation for additional work. This process shall be repeated each time the revised ecological services analysis report is resubmitted until the ecological services analysis report is approved, rejected, or is withdrawn. If the TTT cannot reach agreement with the person or the person fails to perform the ecological services analysis as proposed, the Trustees shall refer the affected property back to the TNRCC for further decisions on remedial/corrective action. The TNRCC PM shall be kept informed of all TTT activities, shall be copied on all comments, and shall be invited to participate in all meetings with the person concerning performance of the ecological services analysis. (ii) Approval and completion of the compensatory ecological restoration. Upon reaching a final decision on all reports which involve compensatory ecological restoration, the Trustees shall provide a written statement to the person and the TNRCC PM of the Trustees' final decision. When the compensatory ecological restoration is completed consistent with Trustee-approved criteria, the TTT shall also provide a written statement to both the person and the TNRCC PM certifying satisfactory completion of the compensatory ecological restoration. If the compensatory ecological restoration is not completed to the Trustees' satisfaction, the Trustees shall refer the affected property back to the TNRCC for further decisions on remedial/corrective action. (C) Agreement. Where determined appropriate by the Trustees, the Trustees shall pursue a written agreement with a person conducting an ecological services analysis to govern Trustee coordination with that person. The agreement will include issues such as the payment of Trustees' costs associated with the ecological risk assessment and ecological services analysis processes, public participation requirements, and a mechanism for addressing natural resource damages liability, as applicable. (D) Dispute resolution. In the event of a dispute between any of the parties concerning activities under subsection (h)(2) of this MOU, the Trustee contacts shall attempt to resolve the dispute informally. If the dispute is not resolved informally at the Trustee contact level, any Trustee may invoke the following dispute resolution procedures by sending notice to all primary Trustee contacts involved in the dispute. Such notice must include a brief description of the disputed issue(s) and acceptable alternatives for resolution. The Trustee contacts shall elevate the dispute to the appropriate first tier agency representatives with successive elevations to second tier agency representatives and third tier agency representatives as necessary. (i) Within four calendar days after receiving the notice invoking dispute resolution, the Trustees involved in the dispute shall designate the names and titles of their first, second, and third tier agency representatives via electronic mail (or another mutually agreed upon method) to all primary Trustee contacts involved in the dispute. (ii) Within 14 calendar days after receiving the notice invoking dispute resolution, the first tier agency representatives involved in the dispute shall discuss the disputed issue(s), assisted by other technical or legal staff as appropriate. If the disputed issue(s) cannot be resolved by the first tier agency representatives within the 14 calendar days after receiving the notice, the disputed issue(s) shall be elevated by the first tier agency representatives to the second tier agency representatives within five calendar days after the expiration of the discussion period. The second tier agency representatives shall have 14 calendar days within which to discuss and attempt to resolve the disputed issue(s), assisted by other technical or legal staff as appropriate. If the disputed issue(s) cannot be resolved by the second tier agency representatives within the 14 calendar days after it is elevated, the disputed issue(s) shall be elevated by the second tier agency representatives to the third tier agency representatives within five calendar days after the expiration of the discussion period. The third tier agency representatives shall have 14 calendar days within which to discuss and attempt to resolve the disputed issue(s), assisted by other technical or legal staff as appropriate. If the third tier agency representatives cannot resolve the dispute, then the dispute resolution process is terminated and each agency may proceed independently according to its rights under state and federal law. (iii) Each Trustee may automatically obtain one 14-calendar-day extension in this process by sending notice of such to all primary Trustee contacts involved in a particular dispute. Additionally, the 14-calendar-day period may be extended by mutual agreement of all Trustees involved in a particular dispute. (3) Waiver of a Trustee's role in the ecological services analysis process. If a Trustee has waived its involvement in the ecological services analysis process outlined in this MOU (either specifically or through failure to respond to notification within the required time frame) and has not reentered the process pursuant to subsection (j) of this MOU, then the Trustee has waived its role in the ecological services analysis process as set forth by TRRP rules, specifically 30 TAC §350.33(a)(3)(B) and §350.77(f)(2). (i) Efficiencies. The parties recognize that due to the nature of a person's submittal, efficiencies may be gained by combining the notification and other processes under subsections (g) and (h)(1) of this MOU. Any such combined notification shall be clearly identified as such and shall serve to satisfy both of these subsections. (j) Trustee re-entry and early exit from process. (1) If a Trustee has waived its involvement in the ecological risk assessment or ecological services analysis process (either specifically or through failure to respond to notification within the required time frame), the Trustee may resume its involvement in the process by advising the TNRCC Trustee in writing (electronic mail not acceptable) of its intent to participate in subsequent notification and coordination activities. However, upon a deferred entry or a re-entry to the ecological risk assessment or ecological services analysis processes, the Trustee involvement in the TRRP process shall be prospective only and may not challenge previous decisions regarding the ecological risk assessment and ecological services analysis. Additionally, a Trustee may not challenge joint decisions made within the TRRP process on the ecological risk assessment or ecological services analysis during that Trustee's prior participation in the process. (2) Likewise, a Trustee participating in the ecological risk assessment or ecological services analysis process may decline future involvement by advising the TNRCC Trustee in writing (electronic mail not acceptable) of its intent not to participate in future notification and coordination activities. (3) In the event that all the Trustees have waived involvement in the ecological services analysis process (either specifically or through failure to respond to notification within the required time frame), the TNRCC Trustee shall provide oversight of and approval or disapproval with comments on the compensatory ecological restoration and other activities associated with the ecological services analysis. (k) Affected property activities. The Trustees shall promptly notify the TNRCC PM prior to initiating any Trustee activities (e.g., site visits) on an affected property and shall coordinate with the TNRCC PM on any such activities which may affect the remedial/corrective action at an affected property. (l) September 1995 Memorandum of Agreement. Any Trustee activities, issues, or responsibilities not specifically addressed herein, shall be governed by the September 1995 Memorandum of Agreement between the Trustees. (m) Reservation of rights. Except as specifically stated herein, this MOU does not compromise or affect any legal rights of the parties, nor does it narrow the scope of any party's authority or jurisdiction. This MOU does not compromise or affect any rights of the parties with regard to natural resource damage actions. (n) Third party challenges or appeals. The rights and responsibilities contained in this MOU may not be the basis of any third party challenge or appeal. Nothing in this MOU creates any rights or causes of action in persons not parties to this MOU. (o) Appropriated funds. Nothing in this MOU shall be construed as obligating the United States, the State of Texas, or any public agency, their officers, agents or employees, to expend any funds in excess of appropriations authorized by law. (p) Termination and amendment. This MOU shall terminate by written agreement of all the parties. Any party may withdraw from this MOU for any reason. In the event that any party withdraws from the MOU, it must provide written notice to the other parties. In the event of such withdrawal, the MOU remains in full force and effect for the remaining parties. This MOU may also be amended by written agreement of all the parties. Any termination, withdrawal, or amendment must be preceded by appropriate rulemaking. (q) Effective date and signatures. This MOU may be signed by each of the parties in two or more counterparts which together shall constitute one and the same document and shall become effective upon the date of last signature.</content><note type="source"><p>Source Note: The provisions of this §7.124 adopted to be effective April 26, 2001, 26 TexReg 3002.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.125"><num value="7.125">§7.125</num><heading>Adoption of Memorandum of Understanding among the Office of the Secretary of State, Railroad Commission of Texas (RRC), Texas Historical Commission (THC), Texas General Land Office (GLO), Texas Natural Resource Conservation Commission (TNRCC), and Texas Public Utility Commission (PUC)</heading><content>(a) This rule contains the memorandum of understanding (Memorandum) made and entered into among the Office of the Secretary of State, the Railroad Commission of Texas (RRC), the Texas Historical Commission (THC), the Texas General Land Office (GLO), the Texas Natural Resource Conservation Commission (TNRCC), and the Texas Public Utility Commission (PUC) regarding the permitting of natural gas pipelines that cross the border between Texas and Mexico.(1) Whereas, the Office of the Secretary of State recognizes, with respect to building natural gas pipelines that cross the border between Texas and Mexico, that the energy needs of the citizens of Texas and Mexico can be met more efficiently if the permitting process in the State of Texas were organized in a manner that reduces the number of agency contacts a potential permittee must make and assures that the potential permittee secures all appropriate permits.(2) Whereas, the Office of the Secretary of State, on the advice and consent of the other parties to this Memorandum, further recognizes the RRC is particularly well-equipped to serve as the central state agency that reduces the number of agency contacts a potential permittee must make and assures that the potential permittee secures all appropriate permits for building natural gas pipelines that cross the border between Texas and Mexico.(3) Whereas, the RRC is responsible for issuing hydrostatic test water discharge permits, issuing opinions to the United States Army Corps of Engineers (USACE) concerning Clean Water Act, §401, water quality certification, and assuming responsibility for reviewing USACE, Section 10, navigability clearance, with respect to building natural gas pipelines that cross the border between Texas and Mexico.(4) Whereas, the THC in its role as the state historic preservation office, is responsible for ensuring that adverse effects on historic properties are avoided or minimized with respect to building natural gas pipelines that cross the border between Texas and Mexico.(5) Whereas, with respect to building natural gas pipelines that cross the border between Texas and Mexico, the GLO is responsible for issuing easements for portions of the Rio Grande River that have not been deeded to the United States government.(6) Whereas, the TNRCC is responsible for issuing permits to withdraw United States-owned water from the Rio Grande River, its tributaries, and any other Texas stream for hydrostatic testing and permits for operations of certain pipeline facilities which emit air contaminants with respect to building natural gas pipelines that cross the border between Texas and Mexico.(7) Whereas, the PUC does not issue permits with respect to building natural gas pipelines that cross the border between Texas and Mexico, but may in some instances play a role in such projects.(8) Whereas, the RRC, THC, GLO, TNRCC, and PUC recognize that, with respect to building natural gas pipelines that cross the border between Texas and Mexico, the permit requirements from the various state agencies are necessary to protect public health and safety and cultural resources.(9) Whereas, the RRC, THC, GLO, TNRCC, and PUC fully concur with the Office of the Secretary of State that, with respect to building natural gas pipelines that cross the border between Texas and Mexico, the energy needs of the citizens of Texas and Mexico can be met more efficiently if the permitting process in the State of Texas were organized in a manner that reduces the number of agency contacts a potential permittee must make and assures that the potential permittee secures all appropriate permits.(10) Now, therefore, in consideration of the benefits to the State of Texas, the Office of the Secretary of State, the RRC, THC, GLO, TNRCC, and PUC enter into this Memorandum and hereby agree as follows.(A) The RRC, THC, GLO, and TNRCC shall prepare an inventory of all known permits each agency may require with respect to building natural gas pipelines that cross the border between Texas and Mexico. The inventory shall include a list of each agency's permits identified by name and/or number, and identify the appropriate staff contact person by name, phone number, and e-mail address for each permit.(B) The RRC, THC, GLO, TNRCC, and PUC mutually agree the RRC is designated as the distributor for applicable state permit applications, initial screener of completed applications for completeness, and facilitator among the other parties to this Memorandum for applicants who wish to build natural gas pipelines that cross the border between Texas and Mexico. The RRC, THC, GLO, TNRCC, and PUC further agree to encourage other relevant state and federal agencies to engage in this process as the necessity for and convenience provided by their participation becomes apparent.(C) Within 30 days of the effective date of this Memorandum, RRC shall implement a system and designate personnel to distribute all notices of permit requirements, permit applications, and instructions for permit submission to persons who wish to build natural gas pipelines that cross the border between Texas and Mexico.(b) This Memorandum shall be effective as of the date of the last signature on the document. Any party may withdraw from this Memorandum at any time upon 30 days written notice to the other parties.</content><note type="source"><p>Source Note: The provisions of this §7.125 adopted to be effective October 17, 2001, 26 TexReg 8072.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.126"><num value="7.126">§7.126</num><heading>Memorandum of Understanding Between the Texas Department of Licensing and Regulation and the Texas Commission on Environmental Quality</heading><content>The Memorandum of Understanding between the Texas Department of Licensing and Regulation (TDLR) and the Texas Commission on Environmental Quality (commission) regarding the coordination of efforts of the TDLR, the field offices of the commission, and groundwater conservation districts, concerning investigative procedures for referrals of complaints regarding abandoned and/or deteriorated wells is adopted by reference as in complete text in 16 TAC §76.1011 (relating to Memorandum of Understanding between the Texas Department of Licensing and Regulation and the Texas Commission on Environmental Quality). If a copy of this document cannot be obtained from the Internet, a copy can be requested from the Texas Commission on Environmental Quality, Chief Clerk's Office, P.O. Box 13087, Austin, Texas 78711-3087, (512) 239-3300.</content><note type="source"><p>Source Note: The provisions of this §7.126 adopted to be effective March 16, 2005, 30 TexReg 1450.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c7/sc/s7.127"><num value="7.127">§7.127</num><heading>Memorandum of Understanding between the Texas Commission on Environmental Quality and the Texas Department of Transportation</heading><content>(a) Background and Purpose.(1) Texas Water Code (TWC), §26.053, relating to the creation of the Don't Mess with Texas Water Program (Program), was enacted by House Bill 451, 82nd Legislature, 2011 and became effective September 1, 2011. Under TWC, §26.053, the Texas Commission on Environmental Quality (TCEQ) is required to establish a program to prevent illegal dumping that affects the surface waters of the state by placing signs on major highway water crossings that notify drivers of a toll-free number, established by the TCEQ, to call to report illegal dumping. TWC, §26.053(d) requires the Texas Department of Transportation (TxDOT) to cooperate with TCEQ in the placement of the signs along state highways and TWC, §26.053(e) requires TxDOT to post such a Program sign when the previously posted sign identifying the crossing or prohibiting dumping at the crossing is scheduled to be replaced. Under state law, TxDOT is responsible for posting signs along state highways under its jurisdiction. Counties, cities, and other local governments are responsible for placing signs along highways, roads, and streets under their respective jurisdictions.(2) The purpose of this Memorandum of Understanding is to develop a framework of cooperation between TCEQ and TxDOT for the implementation of TWC, §26.053.(b) TCEQ shall:(1) identify major highway water crossings on which signs are to be placed under subsection (c)(1) of this section, prioritize those locations for the placement of the signs, giving priority to the locations that will have the greatest impact on preventing illegal dumping that affects the surface waters of the state, and provide a prioritized list of those locations to TxDOT;(2) coordinate with TxDOT on the design and quantity of Program signs and a timeline for the fabrication and installation of Program signs on the state highway rights of way; and(3) coordinate with local governments concerning their participation in the Program and provide information about the requirements of the location of, and a local government's obligation to pay for, install, and maintain, a Program sign on a highway under the jurisdiction of the local government and the requirement of obtaining a license to use TxDOT's registered "Don't Mess with Texas®" slogan.(c) TxDOT shall:(1) provide and install on state highways under the jurisdiction of TxDOT a total of not more than 20 Program signs, in accordance with the priority list of locations provided under subsection (b)(1) of this section, as soon as practicable and before those signs are scheduled to be replaced, as required by TWC, §26.053(e);(2) coordinate with TCEQ on the design and quantity of Program signs and a timeline for the fabrication and installation of Program signs on the state highway rights of way;(3) coordinate with TCEQ and local governments on the placement of any additional signs paid for by local governments and placed along state highways, roads, and streets under the jurisdiction of the local governments;(4) work with each local government that is approved by TCEQ and TxDOT to provide, install, and maintain a Program sign for the local government to obtain a license for the use of the Don't Mess with Texas® slogan on the Program sign; and(5) maintain the Program signs that are placed along state highways under the jurisdiction of TxDOT.(d) General conditions.(1) A modification of this agreement must be made by mutual consent of the parties and only by the issuance of a written modification, signed and dated by authorized officials.(2) This agreement is effective upon execution of both agencies.</content><note type="source"><p>Source Note: The provisions of this §7.127 adopted to be effective December 27, 2012, 37 TexReg 9943.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c9"><num value="9">CHAPTER 9</num><heading>TRAINING AND EMPLOYEE PROGRAMS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c9/scA"><num value="A">SUBCHAPTER A</num><heading>TRAINING FOR COMMISSIONERS</heading><section identifier="/us/state/tx/tac/t30/p1/c9/scA/s9.1"><num value="9.1">§9.1</num><heading>Purpose</heading><content>This subchapter governs procedures applicable to the training of commissioners of the Texas Commission on Environmental Quality appointed on or after January 1, 2002.</content><note type="source"><p>Source Note: The provisions of this §9.1 adopted to be effective November 29, 2001, 26 TexReg 9629; amended to be effective March 27, 2003, 28 TexReg 2603.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c9/scA/s9.2"><num value="9.2">§9.2</num><heading>Need for Training</heading><content>A person who is appointed to and qualifies for office as a member of the commission may not vote, deliberate, or be counted as a member in attendance at a meeting of the commission until the person completes a training program that complies with this chapter. This training program should be completed as soon as practical after appointment.</content><note type="source"><p>Source Note: The provisions of this §9.2 adopted to be effective November 29, 2001, 26 TexReg 9629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c9/scA/s9.3"><num value="9.3">§9.3</num><heading>Scope of Training</heading><content>(a) The training program may include, but is not limited to, information provided through staff briefings, written material, seminars/conferences, or internet and intranet resources. The executive director and the general counsel, or their designees, will provide briefings on topics within their scope of authority.(b) The training program must provide the person with information regarding:(1) the legislation that created the commission, including relevant portions of the Texas Water Code and the Texas Health and Safety Code;(2) the programs operated by the commission, including programs which are federally delegated or authorized;(3) the role and functions of the commission, including the agency's mission statement and scope of commission's authority;(4) the rules of the commission, with an emphasis on the rules that relate to disciplinary and investigatory authority;(5) the current budget for the commission;(6) the results of recent significant internal and external audits of the commission;(7) the requirements of:(A) the open meetings law, Texas Government Code, Chapter 551;(B) the public information law, Texas Government Code, Chapter 552;(C) the administrative procedure law, Texas Government Code, Chapter 2001; and(D) other laws relating to public officials, including conflict of interest laws; and(8) any applicable ethics policies adopted by the commission or the Texas Ethics Commission.</content><note type="source"><p>Source Note: The provisions of this §9.3 adopted to be effective November 29, 2001, 26 TexReg 9629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c9/scA/s9.4"><num value="9.4">§9.4</num><heading>Certificate of Completion of Training</heading><content>Upon completion of training by a newly-appointed commissioner, the general counsel shall issue the commissioner a certificate of completion to document that the commissioner is appropriately trained to serve as a commissioner. Such certificate will be kept on file by the general counsel and will be available for public inspection.</content><note type="source"><p>Source Note: The provisions of this §9.4 adopted to be effective November 29, 2001, 26 TexReg 9629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c9/scA/s9.5"><num value="9.5">§9.5</num><heading>Reimbursement</heading><content>A person appointed to the commission is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office.</content><note type="source"><p>Source Note: The provisions of this §9.5 adopted to be effective November 29, 2001, 26 TexReg 9629.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c9/scB"><num value="B">SUBCHAPTER B</num><heading>EMPLOYEE TRAINING AND EDUCATION</heading><section identifier="/us/state/tx/tac/t30/p1/c9/scB/s9.10"><num value="9.10">§9.10</num><heading>Purpose</heading><content>(a) This subchapter governs procedures applicable to the employee training and education programs of the agency.(b) The commission encourages the professional development of its employees through job-related training and education assistance programs that are designed to:(1) prepare employees for technological and legal developments;(2) increase employees' work capabilities; and(3) increase employees' professional and technical competence.</content><note type="source"><p>Source Note: The provisions of this §9.10 adopted to be effective March 27, 2003, 28 TexReg 2603.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c9/scB/s9.11"><num value="9.11">§9.11</num><heading>Definition of Training</heading><content>"Training" means instruction, teaching, or other education received by an employee that is designed to enhance the ability of the employee to perform the employee's job. Training can include job-oriented training that is provided within the agency by staff, other state entities, federal organizations, or private vendors. It can also include workshops, seminars, institutes, training sessions, college courses, and other programs or activities offered outside the agency.</content><note type="source"><p>Source Note: The provisions of this §9.11 adopted to be effective March 27, 2003, 28 TexReg 2603; amended to be effective November 24, 2016, 41 TexReg 9140.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c9/scB/s9.12"><num value="9.12">§9.12</num><heading>Training Components</heading><content>Employee training and education consists of employee training opportunities and the education assistance program.(1) Employees are offered training opportunities through in-house training and education as well as out-of-agency staff development opportunities.(A) In-house training is job-oriented training that is provided within the agency by staff, other state entities, federal organizations, or private vendors. In-house training can include core courses identified by the executive director, technical courses, computer training (from basic to advanced courses), staff development courses, and management development courses.(B) Out-of-agency staff development is offered outside the agency either within or outside the state and includes workshops, seminars, institutes, training sessions, and other programs or activities.(2) The education assistance program provides external learning opportunities to enhance job-related knowledge and skills. It includes courses provided by an accredited university, college, or other institution of higher learning delivered through a variety of different media, such as instructor-led courses, online courses, and courses not credited towards a degree.</content><note type="source"><p>Source Note: The provisions of this §9.12 adopted to be effective March 27, 2003, 28 TexReg 2603; amended to be effective November 24, 2016, 41 TexReg 9140.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c9/scB/s9.13"><num value="9.13">§9.13</num><heading>Eligibility</heading><content>(a) Employee training opportunities. Employees are eligible to participate in the agency's training opportunities to increase their job-related knowledge and skills, without regard to race, color, religion, sex, sexual orientation, age, national origin, disability, or veteran status.(b) Education assistance program. Employees may participate in the agency's education assistance program without regard to the employee's race, color, religion, sex, sexual orientation, age, national origin, disability, or veteran status. To qualify for reimbursement, employees must meet the following eligibility requirements as set forth in the agency's policies:(1) full-time employment requirement;(2) tenure requirement;(3) performance requirements; and(4) conduct requirements.</content><note type="source"><p>Source Note: The provisions of this §9.13 adopted to be effective March 27, 2003, 28 TexReg 2603; amended to be effective November 24, 2016, 41 TexReg 9140.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c9/scB/s9.14"><num value="9.14">§9.14</num><heading>Obligations</heading><content>Employees who participate in the agency's training and education programs are obligated to comply with agency policies and procedures regarding these programs.</content><note type="source"><p>Source Note: The provisions of this §9.14 adopted to be effective March 27, 2003, 28 TexReg 2603.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c9/scB/s9.15"><num value="9.15">§9.15</num><heading>Reimbursement</heading><content>(a) Employee training opportunities.(1) Funding for employee training is provided by the Human Resources and Staff Services Division or the employee's division.(2) The employee's division also funds travel-related expenses for training participation.(b) Education assistance program. Upon the recommendation of the employee's division director and with approval of the executive director, the employee's respective division funds may be used to reimburse the employee for specific tuition-related expenses . To qualify for reimbursement, the employee must successfully complete the requested course at an accredited institution of higher education, and the course must be:(1) directly related to improving specific knowledge and skills pertinent to essential job functions of the current or prospective position;(2) needed for a special job assignment; or(3) required for a career ladder promotion.</content><note type="source"><p>Source Note: The provisions of this §9.15 adopted to be effective March 27, 2003, 28 TexReg 2603; amended to be effective November 24, 2016, 41 TexReg 9140.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c9/scB/s9.16"><num value="9.16">§9.16</num><heading>Training Records</heading><content>(a) The Human Resources and Staff Services Division maintains training records for all agency employees using an electronic learning management system.(b) Employees can choose to place a copy of their training records in their personnel file.</content><note type="source"><p>Source Note: The provisions of this §9.16 adopted to be effective March 27, 2003, 28 TexReg 2603; amended to be effective November 24, 2016, 41 TexReg 9140.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c9/scB/s9.17"><num value="9.17">§9.17</num><heading>At-Will Employment Status</heading><content>Approval to participate in the agency's training and education programs does not in any way affect an employee's at-will status. Participation in these programs does not constitute a guarantee or indication of future employment in a current or prospective position.</content><note type="source"><p>Source Note: The provisions of this §9.17 adopted to be effective March 27, 2003, 28 TexReg 2603; amended to be effective November 24, 2016, 41 TexReg 9140.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c9/scC"><num value="C">SUBCHAPTER C</num><heading>EMPLOYEE PROGRAMS</heading><section identifier="/us/state/tx/tac/t30/p1/c9/scC/s9.20"><num value="9.20">§9.20</num><heading>Employee Leave Pool Programs</heading><content>(a) Sick Leave Pool. A sick leave pool is established to allow eligible agency employees to use time contributed to the sick leave pool, if the employee has exhausted their sick leave due to a catastrophic illness or injury;(b) Family Leave Pool. A family leave pool is established to allow eligible agency employees to use time contributed to the family leave pool, to allow for more flexibility in bonding with and caring for children during a child's first year following birth, adoption, or foster placement, and caring for a seriously ill family member or the employee's own serious illness, including pandemic-related illnesses or complications caused by a pandemic; and(c) Administration of both pools programs is delegated to the Deputy Director for the Human Resources and Staff Services Division and shall be implemented by policy and procedures that are consistent with Texas Government Code, Chapter 661, as amended.</content><note type="source"><p>Source Note: The provisions of this §9.20 adopted to be effective July 18, 2023, 48 TexReg 3911.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c10"><num value="10">CHAPTER 10</num><heading>COMMISSION MEETINGS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c10/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c10/sc/s10.1"><num value="10.1">§10.1</num><heading>Commission Meetings</heading><content>(a) The commission shall meet as necessary for the conduct of business including special meetings, at times and places in the state necessary for the performance of the commission's duties. The commission is subject to Texas Water Code, §5.058 and the Open Meetings Act, including any existing or future exceptions that may be provided by law.(b) The chairman shall preside at all commission meetings. The chairman may designate another commissioner to preside in his or her absence.</content><note type="source"><p>Source Note: The provisions of this §10.1 adopted to be effective June 6, 1996, 21 TexReg 4712.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c10/sc/s10.2"><num value="10.2">§10.2</num><heading>Conduct and Decorum in Commission Meetings</heading><content>(a) Persons who attend or participate in a meeting should act in a manner that is respectful of the conduct of public business, and conducive to orderly and polite discourse.(b) All persons shall comply with the chairman's directions concerning the offer of public comment, and conduct and decorum. Before the meeting, any person who wishes to speak should complete a public participation form and deliver it to the chief clerk's representative at the meeting.(c) Persons who have special requests concerning a presentation during a meeting shall make advance arrangements with the chief clerk. A special request includes:(1) the presentation of audio or video recordings;(2) the need to move furniture, appliances, or easels;(3) alternative language interpreters; or(4) auxiliary aids or services, such as interpreters for persons who are deaf or hearing impaired, readers, large print, or braille. The chief clerk shall consult with the general counsel on such requests.</content><note type="source"><p>Source Note: The provisions of this §10.2 adopted to be effective June 6, 1996, 21 TexReg 4712.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c10/sc/s10.3"><num value="10.3">§10.3</num><heading>Deadline To File Comments on Matter Set for Commission Meeting</heading><content>The commission or the general counsel may set deadlines for filing written comments on matters set for a commission meeting. The general counsel, either by agreement of the interested persons and any judge assigned to the matter, or on the general counsel's own motion, may extend a filing deadline.</content><note type="source"><p>Source Note: The provisions of this §10.3 adopted to be effective June 6, 1996, 21 TexReg 4712.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c10/sc/s10.4"><num value="10.4">§10.4</num><heading>Continuance or Remand of Matter Set for a Commission Meeting</heading><content>(a) The chairman may continue a matter scheduled for a commission meeting from time to time and from place to place.(b) Motions for continuance shall be in writing or stated on the record. The general counsel, either by agreement of the parties and any judge assigned to the matter, or on the general counsel's own motion, may reschedule the presentation of a matter at a commission meeting.(c) If the time and place for the meeting to reconvene are not announced at the meeting, the chief clerk shall send notice of the rescheduled meeting date to the parties in a contested case no later than ten days before the rescheduled meeting. The parties may agree to waive the notice requirement.(d) The general counsel may remand a matter from the commission's agenda to the executive director if the executive director or the public interest counsel requests a remand.</content><note type="source"><p>Source Note: The provisions of this §10.4 adopted to be effective June 6, 1996, 21 TexReg 4712; amended to be effective April 29, 1999, 24 TexReg 3205.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c10/sc/s10.5"><num value="10.5">§10.5</num><heading>Preparation of Draft Order</heading><content>If the commission or general counsel request a party to prepare a draft order to reflect the commission's action concerning a contested case, the party should attempt to reach an agreement among the parties on the form of the draft order. A written explanation of the parties' positions on the form of the draft order shall accompany the filed draft order.</content><note type="source"><p>Source Note: The provisions of this §10.5 adopted to be effective June 6, 1996, 21 TexReg 4712.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c10/sc/s10.6"><num value="10.6">§10.6</num><heading>Execution of Orders Showing Action Taken at Commission Meetings</heading><content>The chairman or a commissioner may sign written orders to show actions taken by the commission at a meeting if he or she did not vote against the actions reflected in the orders.</content><note type="source"><p>Source Note: The provisions of this §10.6 adopted to be effective June 6, 1996, 21 TexReg 4712.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c10/sc/s10.7"><num value="10.7">§10.7</num><heading>Minutes of Commission Meeting</heading><content>(a) The chief clerk shall prepare written minutes of each commission open meeting, which shall state the subject of each deliberation and indicate each vote, order, decision, or other action taken. The general counsel is authorized to approve the minutes, which shall be kept in accordance with the agency's records retention schedule.(b) The agency shall make an audio recording of each commission open meeting, which shall be retained for ten years after creation, unless a longer retention period is required by Texas Government Code, §441.187(b).(c) The agency shall not make audio recordings of closed sessions of commission meetings properly held in accordance with the requirements of the Open Meetings Act. Except for a private consultation with an attorney under Open Meetings Act, §551.071, the general counsel or chairman shall keep a certified agenda of each closed session. A certified agenda of a closed session is available for public inspection and copying only under the requirements of Open Meetings Act, §551.104(b)(3).</content><note type="source"><p>Source Note: The provisions of this §10.7 adopted to be effective June 6, 1996, 21 TexReg 4712; amended to be effective March 27, 2003, 28 TexReg 2604.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c10/sc/s10.8"><num value="10.8">§10.8</num><heading>Evidentiary Hearing Held by Commission</heading><content>When an evidentiary hearing is held before one or more commissioners, Chapter 80 of this title (relating to Contested Case Hearings) shall apply. Judge shall mean the commissioner presiding over the hearing.</content><note type="source"><p>Source Note: The provisions of this §10.8 adopted to be effective June 6, 1996, 21 TexReg 4712.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c10/sc/s10.9"><num value="10.9">§10.9</num><heading>Document Filing and Service</heading><content>All documents to be considered in a commission meeting shall be filed and served according to §1.10 and §1.11 of this title (relating to Document Filing Procedures and Service on Judge, Parties, and Interested Parties).</content><note type="source"><p>Source Note: The provisions of this §10.9 adopted to be effective June 6, 1996, 21 TexReg 4712.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c11"><num value="11">CHAPTER 11</num><heading>CONTRACTS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c11/scA"><num value="A">SUBCHAPTER A</num><heading>HISTORICALLY UNDERUTILIZED BUSINESS PROGRAM</heading><section identifier="/us/state/tx/tac/t30/p1/c11/scA/s11.1"><num value="11.1">§11.1</num><heading>Historically Underutilized Business Program</heading><content>(a) The commission adopts by reference the rules of the Texas Comptroller of Public Accounts in 34 TAC Part 1, Chapter 20, Subchapter D, Division 1 (relating to Historically Underutilized Businesses).(b) The adoption of this rule is required by Texas Government Code, §2161.003, 76th Legislature, 1999.</content><note type="source"><p>Source Note: The provisions of this §11.1 adopted to be effective September 13, 1996, 21 TexReg 8509; amended to be effective March 16, 2000, 25 TexReg 2148; amended to be effective March 18, 2001, 26 TexReg 2035; amended to be effective April 19, 2007, 32 TexReg 2136; amended to be effective September 11, 2008, 33 TexReg 7529; amended to be effective May 16, 2013, 38 TexReg 2840; amended to be effective November 8, 2018, 43 TexReg 7356.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c11/scB"><num value="B">SUBCHAPTER B</num><heading>PROTEST PROCEDURES FOR VENDORS</heading><section identifier="/us/state/tx/tac/t30/p1/c11/scB/s11.2"><num value="11.2">§11.2</num><heading>Protest Procedures for Vendors</heading><content>(a) Any actual or prospective bidder, offeror, proposer, or contractor who is aggrieved in connection with the solicitation, evaluation, or award of a contract may formally protest to the Procurements and Contracts Manager of the commission or his designee (hereafter Manager). Such protests must be in writing and received in the Procurements and Contracts Section within ten working days after such aggrieved person knows, or should have known, of the occurrence of the action which is protested. Formal protests must conform to the requirements of this subsection and subsection (c) of this section, and shall be resolved in accordance with the procedure set forth in subsections (d) and (e) of this section. Copies of the protest must be mailed or delivered by the protesting person to the project manager, if any, and other interested persons. For the purposes of this section, "interested persons" means all vendors who have submitted bids or proposals for the contract involved.(b) In the event of a timely protest or appeal under this section, the state shall not proceed further with the solicitation or with the award of the contract unless the Manager makes a written determination that the award of a contract without delay is necessary to protect substantial interests of the state.(c) A formal protest must be sworn and notarized and contain:(1) a specific identification of the statutory or regulatory provision(s) that the action complained of is alleged to have violated;(2) a specific description of each act alleged to have violated the statutory or regulatory provision(s) identified in paragraph (1) of this subsection;(3) a precise statement of the relevant facts;(4) an identification of the issue or issues to be resolved;(5) argument and authorities in support of the protest; and(6) a statement that copies of the protest have been mailed or delivered to other identifiable interested persons.(d) The Manager may settle and resolve the dispute concerning the solicitation or award of a contract by mutual agreement with the protesting person. The Manager may solicit written responses to the protest from other interested persons.(e) If the protest is not resolved by mutual agreement, the Manager will issue a written determination on the protest.(1) If the Manager determines that no violation of rules or statutes has occurred, he or she shall inform the protesting person and other interested persons by letter which sets forth the reasons for the determination.(2) If the Manager determines that a violation of the rules or statutes has occurred in a case where a contract has not been awarded, he or she shall inform the protesting person and other interested persons by letter that sets forth the reasons for the determination and the appropriate remedial action.(3) If the Manager determines that a violation of the rules or statutes has occurred in a case where a contract has been awarded, he or she shall inform the protesting person and other interested persons by letter which sets forth the reasons for the determination, and the appropriate remedial action, which may include ordering the contract void.(f) After the Manager's determination has been made, the aggrieved person or interested persons may request reconsideration of the Manager's determination to be made by the executive director or his designee. Such request must be in writing and must be received in the Procurements and Contracts Section no later than ten working days after the date of the Manager's determination, which shall be calculated from the date the Manager's letter is hand-delivered, delivered by a nationally recognized courier service, or mailed by certified or registered mail. The request shall be limited to review of the Manager's determination. Copies of the request must be mailed or delivered by the aggrieved person to other interested persons. The request must contain an affidavit that such copies have been provided.(g) The executive director shall issue a final determination on the protest within 15 days after receipt of the aggrieved person's request for reconsideration.(h) A decision issued in writing by the executive director in response to a request for reconsideration shall be the final administrative action of the commission.(i) Unless good cause for delay is shown or the Manager or executive director determines that a protest or appeal raises issues significant to procurement practices or procedures, a protest or appeal that is not filed timely will not be considered.(j) In the event of a protest, all documents collected by the commission as part of a solicitation, evaluation, and/or award of a contract shall be retained by the commission for a period of four years to include the current fiscal year and three additional fiscal years.</content><note type="source"><p>Source Note: The provisions of this §11.2 adopted to be effective December 13, 1998, 23 TexReg 12404; amended to be effective April 19, 2007, 32 TexReg 2136.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c11/scC"><num value="C">SUBCHAPTER C</num><heading>BID OPENING AND TABULATION</heading><section identifier="/us/state/tx/tac/t30/p1/c11/scC/s11.3"><num value="11.3">§11.3</num><heading>Bid Opening and Tabulation</heading><content>(a) The commission adopts by reference the rules of the Texas Comptroller of Public Accounts, Statewide Procurement and Support Services in 34 TAC §20.207 and §20.208 (relating to Competitive Sealed Bidding and Competitive Sealed Proposals).(b) The adoption of this rule is required by Texas Government Code, §2156.005(d), 75th Legislature, 1997.</content><note type="source"><p>Source Note: The provisions of this §11.3 adopted to be effective December 13, 1998, 23 TexReg 12404; amended to be effective April 19, 2007, 32 TexReg 2136; amended to be effective September 11, 2008, 33 TexReg 7529; amended to be effective November 8, 2018, 43 TexReg 7356.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c11/scD"><num value="D">SUBCHAPTER D</num><heading>RESOLUTION OF CONTRACT CLAIMS</heading><section identifier="/us/state/tx/tac/t30/p1/c11/scD/s11.101"><num value="11.101">§11.101</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meaning, unless the context clearly indicates otherwise:(1) Claim - A demand for damages by the contractor based upon the agency's alleged breach of the contract.(2) Contract - A written contract between the agency and a contractor (including contract documents, work orders, purchase order change notices, and other documents amending, modifying, or supplementing the contract) by the terms of which the contractor agrees either:(A) to provide goods or services, by sale or lease, to or for the agency; or(B) to perform a project as defined by Texas Government Code, §2166.001.(3) Contractor - Independent contractor who has entered into a contract directly with a unit of state government. The term does not include:(A) the contractor's subcontractor, officer, employee, agent, or other person furnishing goods or services to a contractor;(B) an employee of a unit of state government; or(C) a student at an institution of higher education.(4) Counterclaim - A demand by the agency relating to the contractor's claim.(5) Deputy director of OLS - the deputy director for the Office of Legal Services (OLS) or the director of a similar successor unit within the agency serving as legal counsel for the executive director and includes individuals designated to act for the deputy director of OLS or a similar unit.</content><note type="source"><p>Source Note: The provisions of this §11.101 adopted to be effective August 20, 2000, 25 TexReg 7719.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c11/scD/s11.102"><num value="11.102">§11.102</num><heading>Applicability</heading><content>(a) This chapter does not apply to an action of the agency for which a contractor is entitled to a specific remedy pursuant to state or federal constitution or statute.(b) This chapter does not apply to contracts:(1) between the agency and the federal government or its agencies, another state, or another nation;(2) between the agency and another unit of state government;(3) between the agency and a local governmental body, or a political subdivision of another state;(4) between a subcontractor and a contractor;(5) subject to the Transportation Code, §201.112;(6) within the exclusive jurisdiction of state or local regulatory bodies;(7) within the exclusive jurisdiction of federal courts or regulatory bodies;(8) for grants of funds from the agency to grantees or subgrantees; or(9) for engineering, architectural, or construction services or for materials related to engineering, architectural, or construction services brought by a party to the written contract, in which the amount in controversy is not less than $250,000.(c) This subchapter applies to claims for breach of contract against the agency asserted by a contractor under Texas Government Code, Chapter 2260 and to counterclaims of the agency. No employee or agent of the commission is authorized to waive the requirements of this subchapter nor the sovereign immunity of the agency, whether by means of acceptance of goods and services or otherwise.</content><note type="source"><p>Source Note: The provisions of this §11.102 adopted to be effective August 20, 2000, 25 TexReg 7719; amended to be effective September 11, 2014, 39 TexReg 7142.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c11/scD/s11.103"><num value="11.103">§11.103</num><heading>Other Rules and Statutes</heading><content>The requirements of the following statutes and rules also apply to claims filed under this subchapter:(1) Texas Government Code, Chapter 2260, regarding contract claims, including without limitation the time limits for filing the notice of claim, counterclaim, and request for hearing; and(2) Section 1.10 and §1.11 of this title (relating to Document Filing Procedures; and Service on Judge, Parties, and Interested Persons) except §1.11(a) of this title.</content><note type="source"><p>Source Note: The provisions of this §11.103 adopted to be effective August 20, 2000, 25 TexReg 7719; amended to be effective June 21, 2006, 31 TexReg 4866.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c11/scD/s11.104"><num value="11.104">§11.104</num><heading>Filing Notice of Claim for Breach of Contract; Counterclaim</heading><content>A contractor asserting a claim that the agency has breached a contract must file a notice of claim as follows.(1) The notice of claim must fully describe the claim in writing on a form to be determined by the agency and must be signed by the contractor or an authorized representative.(2) The notice of claim must be filed with the agency's chief clerk no later than 180 days after the event that the contractor asserts as the basis of the claim. The contractor must reference the docket number assigned by the chief clerk in any documents subsequently filed which pertain to the notice of claim.(3) Copies of the written notice of claim and all other documents filed with the chief clerk must be served on the executive director and the deputy director of Office of Legal Services no later than the day of filing.(4) The executive director shall file any appropriate counterclaim with the chief clerk within 60 days after the filing of the notice of claim and provide a copy to the contractor.</content><note type="source"><p>Source Note: The provisions of this §11.104 adopted to be effective August 20, 2000, 25 TexReg 7719; amended to be effective June 21, 2006, 31 TexReg 4866.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c11/scD/s11.105"><num value="11.105">§11.105</num><heading>Negotiation</heading><content>(a) The executive director is authorized to negotiate, mediate, and settle the claim, as appropriate, and may designate one or more employees of the agency to act.(b) The executive director shall initiate negotiations with the contractor within 120 days after receiving the notice of claim.(c) The executive director may also negotiate, mediate, or settle with a contractor concerning any assertion by a contractor which does not constitute either a notice or a claim under Texas Government Code, Chapter 2260. Such actions by the executive director do not constitute a waiver of statutory or regulatory requirements for a notice or a claim.</content><note type="source"><p>Source Note: The provisions of this §11.105 adopted to be effective August 20, 2000, 25 TexReg 7719; amended to be effective June 21, 2006, 31 TexReg 4866.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c11/scD/s11.106"><num value="11.106">§11.106</num><heading>Settlement of Claim</heading><content>Any agreement to settle all or a portion of the contractor's claim filed under this subchapter must be:(1) in writing;(2) signed by the executive director and the contractor or authorized representative; and(3) filed with the chief clerk.</content><note type="source"><p>Source Note: The provisions of this §11.106 adopted to be effective August 20, 2000, 25 TexReg 7719.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c11/scD/s11.107"><num value="11.107">§11.107</num><heading>Mediation</heading><content>The contractor and the executive director may agree to mediate a claim made under this subchapter. Mediation must be conducted under Chapter 40 of this title (relating to Alternative Dispute Resolution Procedure).</content><note type="source"><p>Source Note: The provisions of this §11.107 adopted to be effective August 20, 2000, 25 TexReg 7719.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c11/scD/s11.108"><num value="11.108">§11.108</num><heading>Request for Hearing</heading><content>(a) A contractor may request a contested case hearing before the State Office of Administrative Hearings (SOAH) of any unsettled portion of the claim.(b) A contractor must file the request for hearing with the chief clerk in writing on a form to be determined by the commission.(c) A contractor may not file the request for hearing until the expiration of 270 days after the contractor files the notice of claim. This period may be extended or reduced by written agreement of the contractor and the executive director. The agreement must be filed with the chief clerk.(d) A contractor must serve copies of the request for hearing on the executive director and the deputy director of Office of Legal Services no later than the day of filing.(e) After a contractor files the request for hearing, the chief clerk shall refer the entire file on the claim and counterclaim to SOAH for a contested case hearing under Texas Government Code, Chapter 2001, as to the issues raised in the request for hearing. Referral of a request for hearing to SOAH does not constitute waiver by the commission of statutory or regulatory requirements for the notice of claim, the claim or the request for hearing.(f) Other chapters of this title regarding requests for, and conduct of, contested case hearings of applications do not apply to hearings of contract claims brought under this subchapter.(g) Contested case hearings brought under this subchapter must be conducted in compliance with the rules of SOAH applicable to hearings on contract claims and where those rules are silent, under the Texas Rules of Civil Procedure and the Texas Rules of Evidence.</content><note type="source"><p>Source Note: The provisions of this §11.108 adopted to be effective August 20, 2000, 25 TexReg 7719; amended to be effective June 21, 2006, 31 TexReg 4866.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c11/scE"><num value="E">SUBCHAPTER E</num><heading>CONTRACTS MONITORING ROLES AND RESPONSIBILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c11/scE/s11.200"><num value="11.200">§11.200</num><heading>Applicability</heading><content>This subchapter applies only to contracts for goods or services which have been procured by one of the procurement methods described in Texas Government Code, §2261.001 as being subject to the requirements of Texas Government Code, Chapter 2261.</content><note type="source"><p>Source Note: The provisions of this §11.200 adopted to be effective June 25, 2000, 25 TexReg 5907; amended to be effective April 19, 2007, 32 TexReg 2136.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c11/scE/s11.201"><num value="11.201">§11.201</num><heading>Roles and Responsibilities</heading><content>The contract monitoring roles and responsibilities of agency internal audit staff and other inspection, investigative, or audit staff are as follows.(1) A unit within the agency will perform internal audit activities which will include providing assistance and consulting regarding contract monitoring issues. This unit will also perform audits of the contract management function and systems when they are warranted by the results of risk assessment and are included in an audit plan approved by the commission.(2) A unit within the agency will seek to improve voluntary contract compliance by performing contract compliance audits of entities which receive funds from the agency.(3) A unit within the agency will function as the agency's criminal enforcement unit. This unit will take action regarding criminal activity related to agency contracts.</content><note type="source"><p>Source Note: The provisions of this §11.201 adopted to be effective June 25, 2000, 25 TexReg 5907.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c11/scE/s11.202"><num value="11.202">§11.202</num><heading>Enhanced Contract Monitoring</heading><content>(a) Pursuant to Texas Government Code, §2261.253, the commission shall assess each contract to determine appropriate contract and performance monitoring requirements.(b) The executive director or his designee shall ensure that risk assessment factors are used to determine when enhanced contract or performance monitoring is required for a contract. The criteria for evaluating risk include:(1) the total contract amount;(2) the funding source(s);(3) the scope and complexity of the goods or services;(4) the risk of fraud, waste, or abuse; and(5) the importance of the work to the agency's mission or infrastructure.(c) Contracts shall be monitored in accordance with the agency's policies and Contract Management Handbook.(d) The executive director will receive regular reports on contracts identified for enhanced monitoring, and where serious issues or risks are identified, the executive director shall notify the commission.(e) This section does not apply to a memorandum of understanding, memorandum of agreement, interagency contract, inter-local agreement, intergovernmental contract or contract for which there is not a cost.</content><note type="source"><p>Source Note: The provisions of this §11.202 adopted to be effective December 8, 2016, 41 TexReg 9531.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c12"><num value="12">CHAPTER 12</num><heading>PAYMENT OF FEES</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c12/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c12/sc/s12.1"><num value="12.1">§12.1</num><heading>Applicability</heading><content>This chapter applies to those fees owed the state under the commission's jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §12.1 adopted to be effective February 14, 1997, 22 TexReg 1322.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c12/sc/s12.3"><num value="12.3">§12.3</num><heading>Penalty and Interest on Delinquent Fees</heading><content>(a) A penalty of 5.0% of the fee due shall be imposed on a person who fails to pay a fee required under this title when due, and, if the person fails to pay the fee within 30 days after the day on which the fee is due, an additional 5.0% penalty shall be imposed. (b) Delinquent fees accrue interest beginning on the 61st day after their due date. (c) The yearly interest rate on all delinquent fees required under this title is the prime rate plus one percent, as published in the Wall Street Journal on the first day of each calendar year that is not a Saturday, Sunday, or legal holiday. (d) Penalties and/or interest under this section may be waived by the executive director for good cause.</content><note type="source"><p>Source Note: The provisions of this §12.3 adopted to be effective February 14, 1997, 22 TexReg 1322; amended to be effective March 30, 2000, 25 TexReg 2655.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c12/sc/s12.5"><num value="12.5">§12.5</num><heading>Consistency of Penalties and Interest with the Tax Code</heading><content>The penalties and interest rates assessed under this chapter may not exceed the penalties and interest rates established in Texas Tax Code, §111.060 and §111.061.</content><note type="source"><p>Source Note: The provisions of this §12.5 adopted to be effective February 14, 1997, 22 TexReg 1322.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c14"><num value="14">CHAPTER 14</num><heading>GRANTS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c14/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c14/sc/s14.1"><num value="14.1">§14.1</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Direct award - The award of a grant without first soliciting competitive proposals or applications. (2) Grant - The award of financial assistance, including cooperative agreements, in the form of money, property in lieu of money, or other financial assistance paid or furnished by the state or federal government to carry out a program in accordance with rules, regulations, and guidance provided by the grantor agency. The term does not include technical assistance which provides services instead of money, or other assistance in the form of revenue sharing, loans, loan guarantees, interest subsidies, insurance, or direct appropriations. Also, the term does not include assistance, such as a fellowship or other lump sum award, for which the grantee is not required to account. (3) Local government - A county, municipality, city, town, township, local public authority (including any public and Indian housing agency under the United States Housing Act of 1937), school district, special district, intrastate district, council of governments (whether or not incorporated as a nonprofit corporation under state law), any other regional or interstate government entity, or any agency or instrumentality of a local government. (4) Pass-through grant - An award of financial assistance made by the agency to an eligible entity using federal grant funds. The term includes financial assistance when provided by contractual legal agreement, but does not include any form of assistance which is excluded from the definition of "grant" as defined in this section. (5) Political subdivision - A political subdivision as that term is used in Texas Government Code, Chapter 791, Interlocal Cooperation Contracts. (6) UGMS - The publication titled Uniform Grant Management Standards , promulgated by the Governor's Office of Budget and Planning in accordance with Texas Government Code, Chapter 783, Uniform Grant and Contract Management, as amended February 12, 1999.</content><note type="source"><p>Source Note: The provisions of this §14.1 adopted to be effective August 20, 2000, 25 TexReg 7720.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c14/sc/s14.2"><num value="14.2">§14.2</num><heading>Authority</heading><content>The Texas Water Code, §5.124 and §5.125 (Session Laws, 76th Legislature, 1999, Chapter 187 (HB 3561) pages 660-662) authorizes the agency to award grants for any resource conservation or environmental protection purpose.</content><note type="source"><p>Source Note: The provisions of this §14.2 adopted to be effective August 20, 2000, 25 TexReg 7720.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c14/sc/s14.3"><num value="14.3">§14.3</num><heading>Applicability</heading><content>(a) Grants may be awarded only for a purpose which is consistent with the agency's jurisdiction and purposes under law, as determined by the executive director.(b) Purposes for which the agency may award a grant include:(1) development or implementation of comprehensive conservation and management plans under the Federal Water Pollution Control Act, §320 (33 United States Code, Chapter 1330), for designated national estuaries located in Texas;(2) demonstration projects which involve new techniques for pollution prevention, energy or resource conservation, or waste management;(3) environmental purposes identified in a federal grant which is intended as pass-through grant;(4) development or improvement of monitoring or modeling techniques for water or air quality;(5) support of local air pollution programs; or(6) studies or program-related efforts to prevent an area which is near-nonattainment with federal air quality standards from reaching nonattainment status or, if such an area has become a nonattainment area, to assist that area's efforts to return to attainment status.(c) If the agency awards a grant for a purpose other than those specifically listed in subsection (b) of this section, the executive director must identify the purpose, determine and document that it is consistent with the agency jurisdiction and purposes under law, and document how the funding requirements are met under §14.4 of this title (relating to Funding).(d) This chapter does not restrict or limit the ability of the agency to procure goods or services needed by the agency for the purpose of carrying out its own responsibilities in accordance with the Texas Government Code, Title 7, Intergovernmental Relations, or Title 10, General Government.</content><note type="source"><p>Source Note: The provisions of this §14.3 adopted to be effective August 20, 2000, 25 TexReg 7720.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c14/sc/s14.4"><num value="14.4">§14.4</num><heading>Funding</heading><content>Grants awarded by the agency under this chapter may use:(1) money appropriated for specific grant-making purposes;(2) federal money granted to the agency for making pass-through grants; or(3) state funds or federal grant funds appropriated for a purpose which the executive director determines is, and documents as being, consistent with a purpose of the grant.</content><note type="source"><p>Source Note: The provisions of this §14.4 adopted to be effective August 20, 2000, 25 TexReg 7720.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c14/sc/s14.5"><num value="14.5">§14.5</num><heading>Recipient Eligibility</heading><content>The executive director shall, for each proposed grant or series of grants, establish recipient eligibility requirements appropriate to the purposes of and activities under the proposed grant or grants.</content><note type="source"><p>Source Note: The provisions of this §14.5 adopted to be effective August 20, 2000, 25 TexReg 7720.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c14/sc/s14.6"><num value="14.6">§14.6</num><heading>Recipient Selection Criteria</heading><content>(a) Except as provided under §14.8 of this title (relating to Direct Award), the executive director shall establish, for each proposed grant or series of grants, recipient selection criteria appropriate to the purposes of and activities under the proposed grant or grants.(b) The executive director may specify any selection criterion he considers relevant to the grant.(c) All selection criteria must address the evaluation and scoring of:(1) available fiscal controls;(2) project effectiveness;(3) project cost; and(4) the potential grant recipient's previous experience with grants and contracts.(d) The agency may award a grant only to an entity or person who meets the established eligibility requirements of the proposed grant and who has been selected in accordance with the established recipient selection requirements.</content><note type="source"><p>Source Note: The provisions of this §14.6 adopted to be effective August 20, 2000, 25 TexReg 7720.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c14/sc/s14.7"><num value="14.7">§14.7</num><heading>Solicitations</heading><content>(a) Except as otherwise provided under §14.8 of this title (relating to Direct Award), the executive director shall prepare and issue a formal request for proposal (RFP) for each proposed grant or series of grants. The RFP must specify the following:(1) the purpose and objective of the proposed grant or grants;(2) the agency's authority to offer and award the proposed grant or grants;(3) the applicable recipient eligibility requirements;(4) the grant recipient activities allowable or required to be performed;(5) the anticipated start date and end date of the proposed grant or grants;(6) the recipient selection criteria to be used;(7) an indication as to whether the agency expects to award more than one grant, and if so how the recipient selection criteria provide for selection of multiple recipients;(8) instructions concerning materials and information required to be submitted by potential grant recipients, including layout and format, required signatures, and number of copies;(9) the submission deadline and the required address or delivery location for proposals;(10) information as to whether grant recipients will be required to contribute matching funds, or other labor or material resources, as a condition of receiving a grant;(11) information as to whether, and if so how, the executive director proposes to adjust or waive any RFP-contained matching funds requirement as authorized under Texas Government Code, §783.009, Matching Fund Waiver for Economically Disadvantaged County or Census Track;(12) information as to how grant payments will be made;(13) information concerning requests for additional, pre-submittal information;(14) the time and location of any pre-submittal meetings, together with an indication as to whether attendance is mandatory; and(15) a requirement that successful recipients must enter into a signed grant agreement or contract with the agency following award announcement.(b) RFPs may indicate the amount of grant funding available to be awarded, but are not required to do so.</content><note type="source"><p>Source Note: The provisions of this §14.7 adopted to be effective August 20, 2000, 25 TexReg 7720.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c14/sc/s14.8"><num value="14.8">§14.8</num><heading>Direct Award</heading><content>(a) A grant may be made by direct award only if:(1) the executive director determines and documents:(A) selection of recipients by the solicitation of proposals or applications is not feasible; and(B) awarding the grant directly is in the best interest of the state;(2) eligibility for the grant is limited to:(A) an agency or political subdivision of this state or of another state;(B) a state institution of higher learning of this state or of another state, including any part or service of the institution; or(C) an agency of the United States; or(3) the grant is awarded to an entity or person established or authorized to develop or implement a comprehensive conservation and management plan under the Federal Water Pollution Control Act, §320 (33 United States Code, Chapter 1330), for a national estuary located in Texas.(b) If a solicitation for proposals is made for the purpose of identifying a partner for a joint application for a federal grant which is subsequently awarded to the agency, the executive director is not required to make an additional solicitation for entering into a pass-through grant with an identified partner.</content><note type="source"><p>Source Note: The provisions of this §14.8 adopted to be effective August 20, 2000, 25 TexReg 7720.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c14/sc/s14.9"><num value="14.9">§14.9</num><heading>Notices</heading><content>(a) The executive director shall publish on the state electronic business daily, commonly known as the Texas Marketplace, information regarding any solicitation related to a grant or series of grants, any of which is reasonably expected to exceed $25,000, to be awarded under this chapter.(b) The notice will indicate either that the executive director is seeking proposals or applications from potential grant recipients, or that one or more direct awards is anticipated, in accordance with §14.8 of this title (relating to Direct Award).(c) If one or more direct awards is anticipated, the notice will identify the recipients selected to receive a direct award and will describe the objective and amount of each proposed award.(d) Following recipient selection and final grant award, except in the case of a previously noted direct award, the executive director shall file a second notice in the state's electronic business daily identifying the successful recipients and indicating the amount of each awarded grant.(e) In addition, the executive director may publish or broadcast information concerning a grant or grants in any publication, website, or other forum.(f) The executive director shall make available to the public on the agency's generally accessible Internet website the purpose for which any grant with a value greater than $25,000 was awarded.</content><note type="source"><p>Source Note: The provisions of this §14.9 adopted to be effective August 20, 2000, 25 TexReg 7720; amended to be effective September 11, 2014, 39 TexReg 7144.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c14/sc/s14.10"><num value="14.10">§14.10</num><heading>Payment Procedures</heading><content>(a) Payments to grant recipients shall be in accordance with the following regulations and standards: (1) all allowable cost standards and payment-related requirements of the Uniform Grant Management Standards (UGMS), Subpart C, Post-Award Requirements, as defined in §14.1 of this title (relating to Definitions) if the recipient is a local government, a Texas state agency, or an Indian Tribal Government; (2) all allowable cost standards and payment-related requirements of the United States Office of Management and Budget (OMB) Circular A-122, if the recipient is a private nonprofit organization, other than an institution of higher education, hospital, or an organization named in OMB Circular A- 122 as not subject to that circular; (3) all allowable cost standards and payment-related requirements of OMB Circular A-21, if the recipient is an educational institution; and (4) all allowable cost standards and payment-related provisions of Title 48, Code of Federal Regulations, Part 31 (Contract Cost Principals and Procedures) if the recipient is a for-profit organization, other than a hospital or an organization named in OMB Circular A-122 as not subject to that circular. (b) In addition, payments to grant recipients shall be in accordance with any special payment-related requirements and/or procedures contained in the signed grant contract.</content><note type="source"><p>Source Note: The provisions of this §14.10 adopted to be effective August 20, 2000, 25 TexReg 7720.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c14/sc/s14.12"><num value="14.12">§14.12</num><heading>Eligible Activities</heading><content>All activities funded by a grant awarded by the agency must relate directly to a purpose specified in the grant.</content><note type="source"><p>Source Note: The provisions of this §14.12 adopted to be effective August 20, 2000, 25 TexReg 7720.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c14/sc/s14.15"><num value="14.15">§14.15</num><heading>Delegation of Authority</heading><content>The executive director may delegate his authority under this chapter as authorized under Texas Water Code, §5.221 and §5.238. Delegation must be in writing.</content><note type="source"><p>Source Note: The provisions of this §14.15 adopted to be effective August 20, 2000, 25 TexReg 7720.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c14/sc/s14.16"><num value="14.16">§14.16</num><heading>Effect on Prior Grants</heading><content>Except to the extent that such grants are subject to pre-existing law embodying the same or similar requirements, the requirements of this chapter do not affect the validity of or apply to any grant:(1) awarded by the agency prior to September 1, 1999;(2) with respect to which the executive director issued a notice or solicitation prior to September 1, 1999, requesting proposals or applications from potential recipients;(3) for which the executive director accepted either a proposal or an application for consideration prior to September 1, 1999; or(4) directly awarded, for which the executive director entered into negotiations or award-related discussions with the grant recipient prior to September 1, 1999.</content><note type="source"><p>Source Note: The provisions of this §14.16 adopted to be effective August 20, 2000, 25 TexReg 7720.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c15"><num value="15">CHAPTER 15</num><heading>FLEET VEHICLE MANAGEMENT</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c15/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c15/sc/s15.1"><num value="15.1">§15.1</num><heading>Fleet Vehicle Management</heading><content>(a) Requirements--each commission vehicle shall be assigned to the commission motor pool and shall be available for checkout, except as provided in subsection (b) of this section.(b) Exceptions--vehicles that meet the criteria in paragraphs (1) and (2) of this subsection are excepted from subsection (a) of this section:(1) a vehicle assigned to a field employee; or(2) a vehicle assigned to an individual administrative or executive employee on a regular or everyday basis if the executive director makes a written documented finding that the assignment is critical to the needs and mission of the commission.(c) The executive director shall adopt an operating policy that is consistent with the Management Plan developed in accordance with Texas Government Code, §2171.104.</content><note type="source"><p>Source Note: The provisions of this §15.1 adopted to be effective July 12, 2001, 26 TexReg 5018.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c17"><num value="17">CHAPTER 17</num><heading>TAX RELIEF FOR PROPERTY USED FOR ENVIRONMENTAL PROTECTION</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c17/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c17/sc/s17.1"><num value="17.1">§17.1</num><heading>Scope and Purpose</heading><content>The purpose of this chapter is to establish the procedure and mechanism for an owner of pollution control property to apply to the commission for a determination of pollution control use.</content><note type="source"><p>Source Note: The provisions of this §17.1 adopted to be effective June 17, 1999, 24 TexReg 4425; amended to be effective February 7, 2008, 33 TexReg 932; amended to be effective December 13, 2010, 35 TexReg 10964.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c17/sc/s17.2"><num value="17.2">§17.2</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA), the Texas Solid Waste Disposal Act (TSWDA), the Texas Water Code (TWC), the Texas Tax Code (TTC), or the Texas Health and Safety Code (THSC), or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them in the fields of pollution control or property taxation. In addition to the terms that are defined by Chapter 3 of this title (relating to Definitions), the TCAA, the TSWDA, TWC, TTC, and THSC, the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Capital cost new--The estimated total capital cost of the equipment or process.(2) Capital cost old--The cost of the equipment that is being or has been replaced by the equipment covered in an application. The value of this variable in the cost analysis procedure is calculated using one of the four hierarchal methods for this variable in the figure in §17.18 of this title (relating to Expedited Review List).(3) Cost analysis procedure--A procedure that uses cost accounting principles to calculate the percentage of a project or process that qualifies for a positive use determination as pollution control property.(4) Environmental benefit--The prevention, monitoring, control, or reduction of air, water, and/or land pollution that results from the actions of the applicant. For purposes of this chapter, environmental benefit does not include the prevention, monitoring, control, or reduction of air, water, and/or land pollution that results from the use or characteristics of the applicant's goods or service produced or provided. For the purpose of this chapter, the terms "environmental benefit" and "pollution control" are synonymous.(5) Marketable product--Anything produced or recovered using pollution control property that is sold as a product, is accumulated for later use, or is used as a raw material in a manufacturing process. Marketable product includes, but is not limited to, anything recovered or produced using the pollution control property and sold, traded, accumulated for later use, or used in a manufacturing process (including at a different facility). Marketable product does not include any emission credits or emission allowances that result from installation of the pollution control property.(6) Partial Determination--A determination that an item of property or a process is not used wholly as pollution control.(7) Pollution control property--A facility, device, or method for control of air, water, and/or land pollution as defined by TTC, §11.31(b).(8) Tier I--An application containing property that is on the Tier I Table in §17.14 of this title (relating to Tier I Pollution Control Property) or that is necessary for the installation or operation of property located on the Tier I Table.(9) Tier II--An application for property that is used wholly for the control of air, water, and/or land pollution, but is not located on the Tier I Table in §17.14 of this title.(10) Tier III--An application for property used partially for the control of air, water, and/or land pollution and that does not correspond exactly to an item on the Tier I Table in §17.14 of this title.(11) Use determination--A finding, either positive or negative, by the executive director that the property is used wholly or partially for pollution control purposes and listing the percentage of the property that is determined to be used for pollution control.</content><note type="source"><p>Source Note: The provisions of this §17.2 adopted to be effective June 17, 1999, 24 TexReg 4425; amended to be effective January 9, 2002, 27 TexReg 185; amended to be effective February 7, 2008, 33 TexReg 932; amended to be effective December 13, 2010, 35 TexReg 10964; amended to be effective February 17, 2026, 51 TexReg 904.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c17/sc/s17.4"><num value="17.4">§17.4</num><heading>Applicability</heading><content>(a) To obtain a positive use determination, the pollution control property must be used, constructed, acquired, or installed wholly or partly to meet or exceed laws, rules, or regulations adopted by any environmental protection agency of the United States, Texas, or a political subdivision of Texas, for the prevention, monitoring, control, or reduction of air, water, or land pollution. In addition, pollution control property must meet the following conditions.(1) Property must have been constructed, acquired, or installed after January 1, 1994.(2) Land must include only the portion of the land acquired after January 1, 1994, that actually contains pollution control property.(3) Equipment, structures, buildings, or devices must not have been taxable by any taxing unit in Texas on or before January 1, 1994, except that if construction of pollution control property was in progress on January 1, 1994, that portion of the property constructed, acquired, or installed after January 1, 1994, is eligible for a positive use determination.(4) Property purchased from another owner is eligible for a positive use determination if it is acquired, constructed, or installed by the new owner after January 1, 1994, will be used as pollution control property, and was not taxable by any taxing unit in which the property is located on or before that date.(b) The executive director shall determine the portion of the pollution control property eligible for a positive use determination.(c) The executive director may not make a determination that property is pollution control property unless all requirements of this section and the applicable requirements of §17.17 of this title (relating to Partial Determination) have been met.</content><note type="source"><p>Source Note: The provisions of this §17.4 adopted to be effective June 17, 1999, 24 TexReg 4425; amended to be effective January 9, 2002, 27 TexReg 185; amended to be effective February 7, 2008, 33 TexReg 932; amended to be effective August 28, 2014, 39 TexReg 6483.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c17/sc/s17.6"><num value="17.6">§17.6</num><heading>Property Ineligible for Exemption from Taxation</heading><content>The following are not exempt from taxation and are not entitled to a positive use determination under this chapter:(1) property is not entitled to an exemption from taxation:(A) solely on the basis that the property is used to manufacture or produce a product or provide a service that prevents, monitors, controls, or reduces air, water, or land pollution;(B) if the property is used, constructed, acquired or installed wholly to produce a good or provide a service;(C) if the property is not wholly or partly used, constructed, acquired or installed to meet or exceed law, rule, or regulation adopted by any environmental protection agency of the United States, Texas, or a political subdivision of Texas for the prevention, monitoring, control, or reduction of air, water, or land pollution; or(D) if the environmental benefit is derived from the use or characteristics of the good or service produced or provided;(2) property that is used for residential purposes, or for recreational, park, or scenic uses as defined by Texas Tax Code, §23.81;(3) motor vehicles; and(4) property that was subject to a tax abatement agreement executed before January 1, 1994. However, property acquired, constructed, or installed after expiration of a tax abatement agreement could be eligible for a positive use determination.</content><note type="source"><p>Source Note: The provisions of this §17.6 adopted to be effective June 17, 1999, 24 TexReg 4425; amended to be effective December 13, 2010, 35 TexReg 10964.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c17/sc/s17.10"><num value="17.10">§17.10</num><heading>Application for Use Determination</heading><content>(a) To be granted a use determination a person shall submit to the executive director:(1) a completed and signed application form specified by the executive director; and(2) the appropriate fee, under §17.20 of this title (relating to Application Fees).(b) An application must be submitted for each unit of pollution control property or for each group of integrated units that has been, or will be, installed for a common purpose.(c) If the applicant desires to apply for a use determination for a specific tax year, the application must be submitted no later than January 31 of the same tax year. Applications submitted after this date will be processed as a lower priority than applications submitted by the due date and without regard for any appraisal district deadlines.(d) All use determination applications must contain at least the following:(1) the anticipated environmental benefits from the installation of the pollution control property for the control of air, water, and/or land pollution, except for applications containing only equipment on the Expedited Review List located in §17.18 of this title (relating to Expedited Review List);(2) the estimated cost of the pollution control property;(3) the purpose of the installation of such facility, device, or method, and the proportion of the installation that is for pollution control, such as, if deemed by the executive director to be relevant and essential to the use determination, a detailed description of the pollution source and a detailed and labeled process flow diagram that clearly depicts the pollution control property and the processes and equipment that generate the pollutant(s) being controlled; (4) the specific sections of the law(s), rule(s), or regulation(s) being met or exceeded by the use, installation, construction, or acquisition of the pollution control property;(5) if the installation includes property that is not used wholly for the control of air, water, and/or land pollution and is not on the Tier I Table, a worksheet showing the calculation of the Cost Analysis Procedure, §17.17(b) of this title (relating to Partial Determinations), and explaining each of the variables;(6) any information that the executive director deems reasonably necessary to determine the eligibility of the application;(7) if the property for which a use determination is sought has been purchased from another owner who previously used the property as pollution control property, a copy of the bill of sale or other information submitted by the person or political subdivision that demonstrates, to the satisfaction of the executive director, that the transaction involves a bona fide change in ownership of the property and is not a sham transaction for the purpose of avoiding tax liability; and(8) the name of the appraisal district for the county in which the property is located.</content><note type="source"><p>Source Note: The provisions of this §17.10 adopted to be effective June 17, 1999, 24 TexReg 4425; amended to be effective January 9, 2002, 27 TexReg 185; amended to be effective February 7, 2008, 33 TexReg 932; amended to be effective December 13, 2010, 35 TexReg 10964; amended to be effective February 17, 2026, 51 TexReg 904.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c17/sc/s17.12"><num value="17.12">§17.12</num><heading>Application Review Schedule</heading><content>Following submission of the information required by §17.10 of this title (relating to Application for Use Determination), the executive director shall determine whether the pollution control property is used wholly or partly for the control of air, water, and/or land pollution. If the determination is that the property is used partly for pollution control, the executive director shall determine the proportion of the property used for pollution control.(1) As soon as practicable, the executive director shall send notice by regular mail or electronic mail to the chief appraiser of the appraisal district for the county in which the property is located that the person has applied for a use determination under this chapter.(2) As soon as practicable after receipt of an application for use determination, the executive director shall send written notification informing the applicant that the application is administratively complete or that it is deficient.(A) If the application is not administratively complete, the notification will specify the deficiencies, and allow the applicant 30 days to provide a revised application with the requested information. If the applicant does not submit the requested information within 30 days, the executive director shall take no further action on the application and the application fee will be forfeited under §17.20(b) of this title (relating to Application Fees). If the first revised application is deficient, the executive director shall send written notification informing the applicant that the application is deficient and providing the applicant 30 days to provide a second revised application. If the second revised application is not administratively complete or the applicant does not provide a second revised application within the 30 days, the executive director shall take no further action on the application and the application fee will be forfeited under §17.20(b) of this title.(B) The executive director may request additional technical information within 60 days of issuance of an administrative completeness notification. If additional information is requested, the applicant shall provide a revised application with the requested information. If the revised application is determined to be incomplete or the applicant does not provide the requested technical information within 30 days, the executive director may request additional technical information or the executive director may decide to take no further action on the application and the application fee will be forfeited under §17.20(b) of this title. The executive director may not issue more than two notices of deficiency after the issuance of an administrative completeness notification on an application.(C) The technical review process is limited to a total of 230 days from the date of declaration that the application is administratively complete. If at the end of the review period the application is considered to be incomplete, the executive director shall issue a negative use determination for failure to document the eligibility of the property/equipment to receive a positive use determination.(D) An application where the executive director will take no further action under subparagraph (A) or (B) of this paragraph may be refiled by the applicant. In such cases, the applicant shall pay the appropriate fee as required by §17.20 of this title.(3) For applications covering property listed in the table in §17.18 of this title (relating to Expedited Review List), the executive director will complete the technical review of the application within 30 days of receipt of the required application information without regard to whether the information required by §17.10(d)(1) of this title has been submitted.(4) The executive director shall determine whether the property is or is not used wholly or partly to control pollution. The executive director is authorized to grant positive use determinations for the portion of the property included in the application that is deemed pollution control property.(A) If a positive use determination is made, the executive director shall issue a use determination letter to the applicant that describes the proportion of the property that is pollution control property.(B) If a negative use determination is made, the executive director shall issue a denial letter explaining the reason for the denial.(C) A letter enclosing a copy of the determination shall be sent by regular or electronic mail to the chief appraiser of the appraisal district for the county in which the property is located.</content><note type="source"><p>Source Note: The provisions of this §17.12 adopted to be effective June 17, 1999, 24 TexReg 4425; amended to be effective January 9, 2002, 27 TexReg 185; amended to be effective February 7, 2008, 33 TexReg 932; amended to be effective December 13, 2010, 35 TexReg 10964; amended to be effective August 28, 2014, 39 TexReg 6483; amended to be effective February 17, 2026, 51 TexReg 904.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c17/sc/s17.14"><num value="17.14">§17.14</num><heading>Tier I Pollution Control Property</heading><content>For the property listed in the Tier I Table located in this subsection that is used wholly for pollution control purposes, a Tier I application is required. A Tier I application must not include any property that is not listed in this subsection or that is used for pollution control purposes at a use percentage that is different than what is listed in the table. Unless otherwise designated with a partial use percentage on the Tier I Table, if a marketable product is recovered (not including materials that are disposed) from property listed in this subsection, a Tier III application is required.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §17.14 adopted to be effective February 7, 2008, 33 TexReg 932; amended to be effective December 13, 2010, 35 TexReg 10964; amended to be effective August 28, 2014, 39 TexReg 6483; amended to be effective January 7, 2021, 46 TexReg 176; amended to be effective February 17, 2026, 51 TexReg 904.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c17/sc/s17.17"><num value="17.17">§17.17</num><heading>Partial Determinations</heading><content>(a) A Tier III application requesting a partial determination must be submitted for all property that is either not used as described on the Tier I Table located in §17.14 of this title (relating to Tier I Pollution Control Property), or does not fully satisfy the requirements for a 100% positive use determination under this chapter. For all property for which a partial use determination is sought, the cost analysis procedure (CAP) described in subsection (b) of this section must be used.(b) Consistent with subsection (a) of this section, the following calculation (cost analysis procedure) must be used to determine the creditable partial percentage for a property that is filed on a Tier III application:(1) If no marketable product results from the use of the property, use the following equation and enter "0" for the net present value of the marketable product (NPVMP):Attached Graphic(2) For property that generates a marketable product (MP), the net present value (NPV) of the MP is used to reduce the partial determination when used in the equation in the figure in paragraph (1) of this subsection. The value of the MP is calculated by subtracting the production costs of the MP from the market value of the MP. This value is then used to calculate the NPV of the MP (NPVMP) over the lifetime of the equipment. The equation for calculating NPVMP is as follows:Attached Graphic(c) If the cost analysis procedure of this section produces a negative number or a zero, the property is not eligible for a positive use determination.</content><note type="source"><p>Source Note: The provisions of this §17.17 adopted to be effective January 9, 2002, 27 TexReg 185; amended to be effective February 7, 2008, 33 TexReg 932; amended to be effective December 13, 2010, 35 TexReg 10964; amended to be effective January 7, 2021, 46 TexReg 176; amended to be effective February 17, 2026, 51 TexReg 904.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c17/sc/s17.18"><num value="17.18">§17.18</num><heading>Expedited Review List</heading><content>The Expedited Review List in this section is adopted as a nonexclusive list of facilities, devices, or methods for the control of air, water, and/or land pollution. This table consists of the list located in Texas Tax Code (TTC), §11.31(k) with changes as authorized by TTC, §11.31(l). The commission shall review and update the items listed in this table only if there is compelling evidence to support the conclusion that the item provides pollution control benefits. The commission may remove an item from this table only if there is compelling evidence to support the conclusion that the item does not render pollution control benefits. An application that identifies an appropriate item from this list must be submitted as the appropriate tier level described in §17.2 (Relating to Definitions) and remit the corresponding fee as listed in §17.20(a) (relating to Application Fees).Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §17.18 adopted to be effective February 17, 2026, 51 TexReg 904.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c17/sc/s17.20"><num value="17.20">§17.20</num><heading>Application Fees</heading><content>(a) Fees shall be remitted with each application for a use determination as required in paragraphs (1) - (3) of this subsection. (1) Tier I Application--A $150 fee shall be charged for applications for property that is located in the Tier I Table located in §17.14 of this title (relating to Tier I Pollution Control Property), as long as the application seeks no variance from that use determination.(2) Tier II Application--A $1,000 fee shall be charged for applications for property that is used wholly for the control of air, water, and/or land pollution, but not in the Tier I Table located in §17.14 of this title.(3) Tier III Application--A $2,500 fee shall be charged for applications for property used partially for the control of air, water, and/or land pollution.(b) Fees will be forfeited for applications for use determination on which the executive director will take no further action under §17.12(2) of this title (relating to Application Review Schedule). An applicant who submits an insufficient fee will receive a deficiency notice in accordance with the procedures in §17.12(2) of this title. The fee must be remitted with the response to the deficiency notice before the application will be deemed administratively complete. If it is determined that an application was submitted at the wrong tier level, the executive director will notify the applicant of the amount in which the fees are deficient or in excess, and if there are deficient fees, the applicant shall remit the appropriate fee according to the requirements in subsection (a) of this section before review of the application continues. If the deficient fees are not paid in full within 30 days of the applicant being notified of the deficiency, the executive director will take no further action on the application. If the executive director takes no further action on the application, the portion of the fees already paid shall be forfeited by the applicant.(c) All fees shall be paid by check, money order, electronic funds transfer, or through the commission's payment portal, and shall be made payable to the Texas Commission on Environmental Quality.(d) The application fee or receipt for payment of the application fee must be delivered with the application to the commission.</content><note type="source"><p>Source Note: The provisions of this §17.20 adopted to be effective June 17, 1999, 24 TexReg 4425; amended to be effective January 9, 2002, 27 TexReg 185; amended to be effective February 7, 2008, 33 TexReg 932; amended to be effective December 13, 2010, 35 TexReg 10964; amended to be effective February 17, 2026, 51 TexReg 904.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c17/sc/s17.25"><num value="17.25">§17.25</num><heading>Appeals Process</heading><content>(a) Applicability.(1) This subchapter applies to all appeals of use determinations issued by the executive director. A proceeding based upon an appeal filed under this subchapter is not a contested case for purposes of Texas Government Code, Chapter 2001.(2) The following persons may appeal a use determination issued by the executive director:(A) the applicant seeking a use determination; and(B) the chief appraiser of the appraisal district for the county in which the property for which a use determination is sought is located.(b) Form and timing of appeal. An appeal must be in writing and must be filed by United States mail, facsimile, e-mail, or hand delivery with the chief clerk of the commission within 20 days after the receipt of the executive director's determination letter. A person is presumed to have been notified on the third regular business day after the date the notice of the executive director's action is e-mailed or mailed by first class mail. If an appeal meeting the requirements of this subsection is not filed within the time period specified, the executive director's use determination is final. An appeal filed under this subchapter must:(1) provide the name, address, e-mail address, and daytime telephone number of the person who files the appeal;(2) give the name and address of the entity to which the use determination was issued;(3) provide the use determination application number for the application for which the use determination was issued;(4) request commission consideration of the use determination; and(5) explain the basis for the appeal.(c) Appeal processing. The chief clerk shall:(1) deliver, e-mail, or mail to the executive director a copy of the appeal;(2) deliver, e-mail, or mail a copy of the appeal to the applicant if the appeal was filed by the chief appraiser or to the chief appraiser if the appeal was filed by the applicant; and(3) schedule the appeal for consideration at the next regularly scheduled commission meeting for which adequate notice can be given.(d) Action by the general counsel. The general counsel may remand a matter from the commission's agenda to the executive director if the executive director or the public interest counsel requests a remand.(e) Action by the commission.(1) The person seeking the determination and the chief appraiser may testify at the commission meeting at which the appeal is considered.(2) The commission may remand the matter to the executive director for a new determination or deny the appeal and affirm the executive director's use determination.(3) If the commission denies the appeal and affirms the executive director's use determination, the commission's decision shall be final and appealable in district court.(f) Action by the executive director.(1) If the commission remands a use determination to the executive director, the executive director shall:(A) conduct a new technical review of the application that includes an evaluation of any information presented during the commission meeting; and(B) upon completion of the technical review, issue a new determination. A copy of the new determination shall be e-mailed to both the applicant and the chief appraiser of the county in which the property is located.(2) A new determination by the executive director may be appealed to the commission in the manner provided by this subchapter.(g) Withdrawn appeals. An appeal may be withdrawn by the entity who requested the appeal. The withdrawal must be in writing, and give the name, e-mail address, address, and daytime telephone number of the person who files the withdrawal, and the withdrawal shall indicate the identification number of the use determination. The withdrawal must be filed by United States mail, facsimile, e-mail, or hand delivery with the chief clerk of the commission.</content><note type="source"><p>Source Note: The provisions of this §17.25 adopted to be effective January 9, 2002, 27 TexReg 185; amended to be effective December 13, 2010, 35 TexReg 10964; amended to be effective February 17, 2026, 51 TexReg 904.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c18"><num value="18">CHAPTER 18</num><heading>VOTER-APPROVAL TAX RELIEF FOR POLLUTION CONTROL REQUIREMENTS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c18/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c18/sc/s18.1"><num value="18.1">§18.1</num><heading>Scope and Purpose</heading><content>The purpose of this chapter is to establish the procedure and mechanism for a political subdivision to apply to the Texas Commission on Environmental Quality (commission) for a determination that the installation or construction of a facility, device, or method for the control of air, water, or land pollution is necessary in order to meet the requirements of a permit issued by the commission.</content><note type="source"><p>Source Note: The provisions of this §18.1 adopted to be effective February 7, 2008, 33 TexReg 943.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c18/sc/s18.2"><num value="18.2">§18.2</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA), the Texas Solid Waste Disposal Act (TSWDA), the Texas Water Code (TWC), the Texas Tax Code (TTC), the Texas Health and Safety Code (THSC), or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them in the fields of pollution control or property taxation. In addition to the terms that are defined by §3.2 of this title (relating to Definitions), the TCAA, the TSWDA, TWC, TTC, and THSC, the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Partial determination--A determination that an item of property or a process is not used wholly as pollution control.(2) Permit requirement--A clause within a permit issued by the Texas Commission on Environmental Quality (TCEQ) which requires the receiver of a permit to expend funds for a facility, device, or method for control of air, water, or land pollution as defined by TTC, §26.045(b).(3) Pollution control property--A facility, device, or method for control of air, water, or land pollution as defined by TTC, §26.045(b).(4) Tier I--An application containing only property that is on the Tier I Table in §18.25 of this title (relating to Tier I Eligible Equipment) or that is necessary for the installation or operation of property located on the Tier I Table.(5) Tier II--An application containing property that is not listed on the Tier I Table or that does not correspond exactly to an item on the Tier I Table in §18.25(a) of this title.(6) Use determination--A finding, either positive or negative, by the executive director that the property is used wholly or partially for pollution control purposes and listing the percentage of the property that is determined to be used for pollution control.</content><note type="source"><p>Source Note: The provisions of this §18.2 adopted to be effective February 7, 2008, 33 TexReg 943; amended to be effective August 28, 2014, 39 TexReg 6488; amended to be effective February 17, 2026, 51 TexReg 907.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c18/sc/s18.5"><num value="18.5">§18.5</num><heading>Applicability</heading><content>(a) To obtain a positive use determination, the pollution control property must be used, constructed, acquired, or installed wholly or partly to meet the requirements of a permit issued by the commission. In addition, pollution control property must meet the following conditions:(1) property must have been constructed, acquired, or installed after January 1, 1994.(2) land must include only the portion of the land acquired after January 1, 1994, that actually contains pollution control property.(3) it must be funded out of the operations and maintenance funds under TTC, §26.012(16).(b) The executive director shall determine the portion of the pollution control property eligible for a positive use determination.</content><note type="source"><p>Source Note: The provisions of this §18.5 adopted to be effective February 7, 2008, 33 TexReg 943.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c18/sc/s18.10"><num value="18.10">§18.10</num><heading>Application for Use Determination</heading><content>(a) In order to be granted a positive use determination, a political subdivision shall submit to the executive director:(1) a completed and signed application form specified by the executive director; and(2) the appropriate fee, under §18.30 of this title (relating to Application Fees).(b) An application must be submitted for each permit requirement for which pollution control property has been or will be installed.(c) The application shall contain at least the following:(1) the anticipated environmental benefits from the installation of the pollution control property for the control of air, water, or land pollution, except for applications containing only equipment on the Expedited Review List located in §18.26 of this title (relating to Expedited Review List);(2) the estimated cost of the pollution control property, where the cost includes not only the cost of the specific property, but also any costs related to the installation or construction of the property;(3) the permit requirement being met by the installation of such facility, device, or method, and the proportion of the installation that is pollution control property;(4) a copy of the permit that is being met or exceeded by the use, installation, construction, or acquisition of the pollution control property;(5) if the installation includes property that is not used wholly for the control of air, water, or land pollution, and is not on the Tier I Table, a worksheet showing the calculation of the partial determination as required in §18.30 of this title (relating to Partial Determinations), and explaining each of the variables; and(6) any information that the executive director deems reasonably necessary to determine the eligibility of the application.</content><note type="source"><p>Source Note: The provisions of this §18.10 adopted to be effective February 7, 2008, 33 TexReg 943; amended to be effective August 28, 2014, 39 TexReg 6488; amended to be effective February 17, 2026, 51 TexReg 907.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c18/sc/s18.15"><num value="18.15">§18.15</num><heading>Application Review Schedule</heading><content>Following submission of the information required by §18.10 of this title (relating to Application for Use Determination), the executive director shall determine whether the pollution control property is used wholly or partly to meet the requirements of a permit issued by the commission. If the determination is that the property is used partly for pollution control, the executive director shall determine the proportion of the property used for pollution control.(1) As soon as practicable, the executive director shall send written notification informing the applicant that the application has been received and if the application is considered to be administratively complete or deficient.(A) If the application is not administratively complete, the notification shall specify the deficiencies and allow the applicant 30 days to provide the requested information. If the applicant does not submit an adequate response, the executive director shall take no further action on the application and the application fee will be forfeited under §18.35(b) of this title (relating to Application Fees).(B) If no further action is taken on an application under subparagraph (A) of this paragraph, the applicant may re-file the application and pay the appropriate fee as required by §18.35(a) of this title.(2) For applications which contain only property that is listed on the Expedited Review List in §18.26 of this title (relating to Expedited Review List), the executive director shall complete the technical review of the application and issue the use determination within 30 days of receipt of the required application documents.(3) For all other applications, within 30 days of receiving the application, the executive director shall either issue a notification requesting additional information or issue the final determination.(A) If additional information is requested, the notification shall specify the deficiencies and allow the applicant 30 days to provide the requested information. If the applicant does not submit an adequate response, the executive director shall take no further action and the application fee will be forfeited under §18.35(b) of this title.(B) If no further action is taken on an application under subparagraph (A) of this paragraph, the applicant may re-file the application and pay the appropriate fee as required by §18.35(a) of this title.(4) The executive director shall determine whether the property is used wholly or partly to control pollution. The executive director is authorized to grant positive use determinations for some or all of the property included in the application that is deemed pollution control property.(A) If a positive use determination is made, the executive director shall issue a use determination letter to the applicant that describes the proportion of the property that is pollution control property.(B) If a negative use determination is made, the executive director shall issue a denial letter explaining the reason for the denial.</content><note type="source"><p>Source Note: The provisions of this §18.15 adopted to be effective February 7, 2008, 33 TexReg 943; amended to be effective August 28, 2014, 39 TexReg 6488; amended to be effective February 17, 2026, 51 TexReg 907.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c18/sc/s18.25"><num value="18.25">§18.25</num><heading>Tier I Eligible Equipment</heading><content>For the property listed on the Tier I Table located in this subsection that is used wholly for pollution control purposes, a Tier I application is required. A Tier I application must not include any property that is not listed in this subsection or that is used for pollution control purposes at a use percentage that is different than what is listed in the table in this subsection. Unless otherwise designated with a partial use percentage in the Tier I Table of this subsection, if a marketable product is recovered (not including materials that are disposed) from property listed in this subsection, a Tier II application is required.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §18.25 adopted to be effective February 7, 2008, 33 TexReg 943; amended to be effective August 28, 2014, 39 TexReg 6488; amended to be effective January 7, 2021, 46 TexReg 182; amended to be effective February 17, 2026, 51 TexReg 907.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c18/sc/s18.26"><num value="18.26">§18.26</num><heading>Expedited Review List</heading><content>The Expedited Review List in this section is a nonexclusive list of facilities, devices, or methods for the control of air, water, and/or land pollution. This table consists of the list located in Texas Tax Code, §26.045(f) with changes as authorized by Texas Tax Code, §26.045(g). The commission shall review and add to the items listed in this table only if there is compelling evidence to support the conclusion that the item provides pollution control benefits. The commission may remove an item from this table only if there is compelling evidence to support the conclusion that the item does not render pollution control benefits. An application that identifies an appropriate item from this list must be submitted as the appropriate tier level described in §18.2 (Relating to Definitions) along with the corresponding fee as listed in §18.35(a) (related to Application Fees).Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §18.26 adopted to be effective August 28, 2014, 39 TexReg 6488; amended to be effective January 7, 2021, 46 TexReg 182; amended to be effective February 17, 2026, 51 TexReg 907.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c18/sc/s18.30"><num value="18.30">§18.30</num><heading>Partial Determinations</heading><content>A partial determination must be requested for all property that is not wholly used for pollution control, except for property that is on the Tier I Table located in §18.25 of this title (relating to Tier I Eligible Equipment) at a specified partial use percentage. It is the responsibility of the applicant to propose a reasonable method for calculating a partial determination. The calculation must be documented and included with the application. It is the responsibility of the executive director to review the appropriateness of the proposed method and make the final determination.</content><note type="source"><p>Source Note: The provisions of this §18.30 adopted to be effective February 7, 2008, 33 TexReg 943; amended to be effective August 28, 2014, 39 TexReg 6488; amended to be effective January 7, 2021, 46 TexReg 182; amended to be effective February 17, 2026, 51 TexReg 907.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c18/sc/s18.35"><num value="18.35">§18.35</num><heading>Application Fees</heading><content>(a) Fees shall be remitted with each application for a use determination as required in paragraphs (1) - (2) of this subsection. (1) Tier I Application. A $150 fee shall be charged for applications which contain only property that is listed in the figure in §18.25 of this title (relating to Tier I Eligible Equipment) or is necessary for the installation or operation of an item listed on the Tier I Table, as long as the application seeks no variance from the percentage listed on the Tier I Table.(2) Tier II Application. A $500 fee shall be charged for applications for property not listed in the figure located in §18.25 of this title.(b) Fees shall be forfeited for applications for use determination on which the executive director will take no further action under §18.15 of this title (relating to Application Review Schedule). An applicant who submits an insufficient fee will receive a deficiency notice in accordance with the procedures in §18.15 of this title. The fee must be remitted with the response to the deficiency notice before the application will be deemed administratively complete. If it is determined that an application was submitted at an inappropriate tier level, the executive director will notify the applicant of the amount in which the fees are deficient or in excess, and if there are deficient fees, the applicant shall remit the appropriate fee described under §18.35(a) before review of the application proceeds. If the deficient fees are not paid in full within 30 days of the applicant being notified of the deficiency, the executive director will take no further action on the application. If the executive director takes no further action on the application, the portion of the fees already paid shall be forfeited by the applicant.(c) All fees shall be paid by check, money order, electronic funds transfer, or through the commission's payment portal, and shall be made payable to the Texas Commission on Environmental Quality.(d) The application fee or receipt for payment must be delivered with the application.</content><note type="source"><p>Source Note: The provisions of this §18.35 adopted to be effective February 7, 2008, 33 TexReg 943; amended to be effective August 28, 2014, 39 TexReg 6488; amended to be effective February 17, 2026, 51 TexReg 907.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c19"><num value="19">CHAPTER 19</num><heading>ELECTRONIC REPORTING; ELECTRONIC TRANSMISSION OF INFORMATION BY COMMISSION</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c19/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c19/scA/s19.1"><num value="19.1">§19.1</num><heading>Definitions</heading><content>In addition to the terms defined in Chapter 3 of this title (relating to Definitions), the following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.(1) Authorized program--A federal program that the United States Environmental Protection Agency (EPA) has delegated, authorized, or approved the State of Texas to administer, or a program that the EPA has delegated, authorized, or approved the State of Texas to administer in lieu of a federal program, under other provisions of 40 Code of Federal Regulations and such delegation, authorization, or approval has not been withdrawn or expired.(2) Copy of record--A true and correct copy of an electronic document received by an electronic document receiving system, which can be viewed in a human-readable format that clearly and accurately associates all the information provided in the electronic document with descriptions or labeling of the information. A copy of record includes:(A) all electronic signatures contained in or associated with that document;(B) the date and time of receipt; and(C) any other information used to record the meaning of the document or the circumstances of its receipt.(3) Electronic document--Any information that is submitted in digital form to satisfy requirements of an authorized program or other designated state programs. Information may include data, text, sounds, codes, computer programs, software, or databases.(4) Electronic document receiving system--A set of apparatus, procedures, software, or records used to receive electronic documents.(5) Electronic signature--Any information in digital form that is included in or associated with an electronic document for the purpose of expressing the same meaning and intention as would a handwritten signature if affixed to an equivalent paper document with the same reference to the same content.(6) Electronic signature agreement--A document drafted by the executive director and signed by an individual with respect to an electronic signature device that the individual will use to create his or her electronic signature and whereon the individual acknowledges the obligations connected with preventing compromise of the electronic signature device.(7) Electronic signature device--A code or other mechanism that is used to create electronic signatures.(8) Federal program--Any program administered by the United States Environmental Protection Agency under any provision of 40 Code of Federal Regulations.(9) State program--Any program, other than a federal program administered by the United States Environmental Protection Agency under any provision of 40 Code of Federal Regulations, that is implemented by the commission under the Texas Water Code, Texas Health and Safety Code, and other laws of the State of Texas.(10) Handwritten signature--The scripted name or legal mark of an individual, made by that individual with a marking or writing instrument such as a pen or stylus and executed or adopted with the present intention to authenticate a writing in a permanent form.(11) Signatory--An individual authorized to and who signs a document using a format acceptable to the commission.</content><note type="source"><p>Source Note: The provisions of this §19.1 adopted to be effective March 1, 2007, 32 TexReg 903.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c19/scA/s19.3"><num value="19.3">§19.3</num><heading>Applicability</heading><content>(a) Subchapters A - C of this chapter apply to:(1) persons, as defined in §3.2 of this title (relating to Definitions), and signatories who submit official, final electronic documents to the commission to satisfy requirements of:(A) authorized programs for which the executive director has announced on the commission's public Web site that the commission is accepting specified electronic documents; or(B) state programs for which the executive director has announced on the commission's public Web site that the commission is accepting specified electronic documents;(2) the commission's electronic document receiving system and other software applications implemented, revised, or modified as announced by the commission; and(3) authorized programs and state programs for which the executive director has announced on the commission's public Web site that the commission is accepting specified electronic documents.(b) This chapter does not apply to:(1) documents submitted via facsimile; or(2) electronic documents submitted via magnetic or optical media such as diskette, compact disc, digital video disc, or tape.</content><note type="source"><p>Source Note: The provisions of this §19.3 adopted to be effective March 1, 2007, 32 TexReg 903; amended to be effective November 11, 2010, 35 TexReg 9907.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c19/scB"><num value="B">SUBCHAPTER B</num><heading>ELECTRONIC REPORTING REQUIREMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c19/scB/s19.10"><num value="19.10">§19.10</num><heading>Use of Electronic Document Receiving System</heading><content>(a) When the executive director has announced on the commission's public Web site that it is accepting specified electronic documents, individuals who submit to the commission electronic documents to satisfy requirements of authorized programs or designated state programs must use the commission's electronic document receiving system.(b) Individuals desiring to use an electronic signature device must execute an electronic signature agreement with handwritten wet ink signature or by using an electronic identity verification system utilized by the commission.(c) Authorized signatories may not allow another individual to use the electronic signature device unique to his or her signature.</content><note type="source"><p>Source Note: The provisions of this §19.10 adopted to be effective March 1, 2007, 32 TexReg 903.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c19/scB/s19.12"><num value="19.12">§19.12</num><heading>Authorized Electronic Signature</heading><content>(a) When the electronic signature device is used to create an individual's electronic signature, the code or mechanism must be unique to that individual at the time the signature is created and the individual must be uniquely entitled to use it. Signatories shall:(1) protect the electronic signature device from compromise; and(2) report to the commission any evidence that the device has been compromised, within one business day of the discovery.(b) An electronic signature device is compromised if the code or mechanism is available for use by any other individual.(c) An electronic document must bear the valid electronic signature of a signatory if that signatory is required under the authorized program or the state program to sign the paper document for which the electronic document substitutes.(d) An electronic signature on an electronic document is valid if it has been created with an electronic signature device that the identified signatory is uniquely entitled to use for signing that document; the device has not been compromised; and the signatory is an individual who is authorized to sign the document by virtue of his or her legal status and/or his or her relationship to the entity on whose behalf the signature is executed.(e) The presence of an electronic signature on an electronic document submitted to the commission establishes that the signatory intended to sign the electronic document and to submit it to the commission to fulfill the purpose of the electronic document.</content><note type="source"><p>Source Note: The provisions of this §19.12 adopted to be effective March 1, 2007, 32 TexReg 903.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c19/scB/s19.14"><num value="19.14">§19.14</num><heading>Enforcement</heading><content>(a) An electronic signature on an electronic document submitted to the commission is the legal equivalent of a handwritten signature on a paper document submitted to the commission.(b) Persons, as defined in §3.2 of this title (relating to Definitions), and signatories are subject to penalties, fines, and other remedies under commission rules or applicable statutes for failure to comply with a reporting requirement of the commission if the person or signatory reports electronically and fails to comply with the applicable provisions of this chapter, applicable statutes, commission rules, and the electronic participation agreement.(c) Nothing in this chapter limits the use of an electronic document, copy of record, or information derived from electronic documents as evidence in enforcement proceedings.</content><note type="source"><p>Source Note: The provisions of this §19.14 adopted to be effective March 1, 2007, 32 TexReg 903.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c19/scC"><num value="C">SUBCHAPTER C</num><heading>USE OF ELECTRONIC REPORTING</heading><section identifier="/us/state/tx/tac/t30/p1/c19/scC/s19.21"><num value="19.21">§19.21</num><heading>Fees</heading><content>The commission may adjust fees as necessary to encourage electronic reporting and the use of the commission's electronic document receiving system.</content><note type="source"><p>Source Note: The provisions of this §19.21 adopted to be effective July 10, 2008, 33 TexReg 5321.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c19/scD"><num value="D">SUBCHAPTER D</num><heading>ELECTRONIC TRANSMISSION BY COMMISSION</heading><section identifier="/us/state/tx/tac/t30/p1/c19/scD/s19.30"><num value="19.30">§19.30</num><heading>Electronic Transmission of Information by Commission</heading><content>(a) Notwithstanding any other law or rule, the commission may utilize electronic means of transmission of information, including notices, orders, and decisions, issued or sent by the commission.(b) A person who provides their email address to the commission for the purpose of providing public comment or receiving notices, orders, or decisions must provide a valid email address to the commission and notify the appropriate commission office in the event there is a change in the email address.(c) Information provided by electronic means of transmittal, including notices, orders, or decisions, is presumed to have been received by a person if the information is sent by the commission to the most recent email address provided by that person.</content><note type="source"><p>Source Note: The provisions of this §19.30 adopted to be effective November 11, 2010, 35 TexReg 9907.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c20"><num value="20">CHAPTER 20</num><heading>RULEMAKING</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c20/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c20/sc/s20.1"><num value="20.1">§20.1</num><heading>General</heading><content>This chapter applies to commission rulemaking.</content><note type="source"><p>Source Note: The provisions of this §20.1 adopted to be effective June 6, 1996, 21 TexReg 4719.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c20/sc/s20.2"><num value="20.2">§20.2</num><heading>Policy</heading><content>Rulemaking hearings shall be conducted in the manner the commission deems most suitable to obtain all relevant information and testimony on proposed rules as conveniently, inexpensively, and expeditiously as possible without prejudicing the rights of any person.</content><note type="source"><p>Source Note: The provisions of this §20.2 adopted to be effective June 6, 1996, 21 TexReg 4719.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c20/sc/s20.3"><num value="20.3">§20.3</num><heading>APA Rulemaking</heading><content>The commission shall follow APA rulemaking requirements.</content><note type="source"><p>Source Note: The provisions of this §20.3 adopted to be effective June 6, 1996, 21 TexReg 4719.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c20/sc/s20.4"><num value="20.4">§20.4</num><heading>Indexing, Cross-Indexing, and Availability of Certain Documents</heading><content>(a) This section applies only to final versions of the following documents that are in effect: (1) rules; (2) other written statements of policy or interpretations that are prepared, adopted, or used by the agency in discharging its functions; (3) orders; (4) decisions; and (5) opinions. (b) For the purposes of this section, the following words or phrases shall have the following meanings. (1) Index - To produce or furnish, as an aid in making documents accessible to the public, one or more of the following: (A) a table of contents; (B) a current list of the titles, identifying names, or identifying numbers of the documents; (C) an orderly filing system by which those documents may be retrieved; or (D) an electronic database of documents by which at least the titles, identifying names, or identifying numbers of those documents can be searched. (2) Cross-index to statute - (A) For rules: to cross-reference or cite statutory authority, for proposing or adopting the rule, according to the requirements of the APA, Texas Register rules, and other applicable law. (B) For written statements of policy or interpretations that are prepared, adopted, or used by the agency in discharging its functions, orders, decisions, and opinions: to cross-reference or cite statutory or regulatory authority within the document. (c) The agency shall index, cross-index to statute, and make available for public inspection the following: (1) rules; (2) other written statements of policy or interpretations that are prepared, adopted, or used by the agency in discharging its functions; (3) orders; (4) decisions; and (5) opinions.</content><note type="source"><p>Source Note: The provisions of this §20.4 adopted to be effective April 18, 2002, 27 TexReg 3191.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c20/sc/s20.5"><num value="20.5">§20.5</num><heading>Mailing List of Persons Requesting Notice of Rulemaking</heading><content>The executive director shall maintain a mailing list of persons requesting advance notice of proposed commission rules. When the commission sends notice of proposed rules to the secretary of state, the executive director shall also send notice of proposed rules by regular mail to each person on the list; however, failure to provide the notice does not invalidate any action taken or rule adopted. At the end of each state fiscal year, the executive director will notify all persons included on the list of the requirement to affirmatively express a desire to continue receiving the notices described herein, and shall eliminate those persons on the list who do not respond within 30 days of this notification.</content><note type="source"><p>Source Note: The provisions of this §20.5 adopted to be effective June 6, 1996, 21 TexReg 4719.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c20/sc/s20.7"><num value="20.7">§20.7</num><heading>Appearance</heading><content>Any person may appear in person or by authorized representative at a rulemaking hearing. A representative shall disclose his authority to speak for the person represented.</content><note type="source"><p>Source Note: The provisions of this §20.7 adopted to be effective June 6, 1996, 21 TexReg 4719.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c20/sc/s20.9"><num value="20.9">§20.9</num><heading>Submission of Documents</heading><content>Written documents may be submitted to the executive director no later than the time of the hearing or by 5:00 p.m. on the last day of the comment period, whichever is later.</content><note type="source"><p>Source Note: The provisions of this §20.9 adopted to be effective June 6, 1996, 21 TexReg 4719; amended to be effective March 27, 2003, 28 TexReg 2605.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c20/sc/s20.11"><num value="20.11">§20.11</num><heading>Oral Presentations</heading><content>(a) A person desiring to make an oral presentation shall so indicate on the commission's registration form provided at the hearing.(b) The presiding officer will establish the order of presentations at the hearing.(c) When necessary, the presiding officer may limit:(1) the number of times a person may speak;(2) the time period for oral presentations; and(3) the time period for raising questions.(d) The presiding officer may limit or exclude cumulative, irrelevant, or unduly repetitious presentations.</content><note type="source"><p>Source Note: The provisions of this §20.11 adopted to be effective June 6, 1996, 21 TexReg 4719.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c20/sc/s20.13"><num value="20.13">§20.13</num><heading>Action after Hearing Concluded</heading><content>(a) After the close of the hearing and the receipt of all documents, the presiding officer shall prepare a report to the commission, which shall include:(1) a summary of the subject of the hearing;(2) a review and analysis of the comments submitted;(3) any revisions recommended as the result of public comment presented;(4) a copy of the rule as recommended for adoption; and(5) other pertinent information.(b) The report shall be submitted to the commission for final action.</content><note type="source"><p>Source Note: The provisions of this §20.13 adopted to be effective June 6, 1996, 21 TexReg 4719.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c20/sc/s20.15"><num value="20.15">§20.15</num><heading>Petition for Adoption of Rules</heading><content>(a) Any interested person may petition the commission to request the adoption of a rule. For the purposes of this section, an interested person must be:(1) a resident of Texas;(2) a business entity located in Texas;(3) a governmental subdivision located in Texas; or(4) a public or private organization located in Texas that is not a Texas state agency.(b) Petitions shall be submitted in writing to: Executive Director, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087, and shall comply with the following requirements:(1) each rule requested must be submitted by separate petition;(2) each petition must state the name and address of the petitioner;(3) each petition shall include:(A) a brief explanation of the proposed rule;(B) the text of the proposed rule prepared in a manner to indicate the words to be added or deleted from the text of the current rule, if any;(C) a statement of the statutory or other authority under which the proposed rule is to be promulgated; and(D) an allegation of injury or inequity that could result from the failure to adopt the proposed rule.(c) A petition may be denied for failure to comply with the requirements of subsection (a) or (b) of this section.(d) Within 60 days after submission of a petition, the commission shall consider the petition and shall either deny the petition in writing, stating its reasons for the denial, or shall initiate rulemaking proceedings in accordance with the Administrative Procedure Act.</content><note type="source"><p>Source Note: The provisions of this §20.15 adopted to be effective June 6, 1996, 21 TexReg 4719; amended to be effective March 27, 2003, 28 TexReg 2605; amended to be effective December 31, 2015, 40 TexReg 9643.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c20/sc/s20.17"><num value="20.17">§20.17</num><heading>Emergency Rules</heading><content>If the commission finds that an imminent peril or extraordinary circumstance may threaten the public health, safety, or welfare or the integrity of the commission's regulatory programs, and requires the adoption of a rule on less than 30 day's notice, it may adopt an emergency rule without prior notice and hearing or with any abbreviated notice and hearing that it finds practicable under the circumstances. The commission shall make a written finding which shall be filed with the secretary of state setting forth its reasons for such determination. The emergency rule shall be effective immediately upon filing with the secretary of state and will continue in effect for a period of up to 120 days. The emergency rule may be renewed once before expiration for a period of 60 days.</content><note type="source"><p>Source Note: The provisions of this §20.17 adopted to be effective June 6, 1996, 21 TexReg 4719.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c21"><num value="21">CHAPTER 21</num><heading>WATER QUALITY FEES</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c21/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c21/sc/s21.1"><num value="21.1">§21.1</num><heading>Purpose and Scope</heading><content>(a) It is the purpose of this chapter to implement the Water Quality Fee Program.(b) An annual fee will be assessed against wastewater permit holders authorized to treat or discharge wastewater into or adjacent to the waters in the state under Texas Water Code (TWC), Chapter 26, and against each person holding a right acquired under authority of TWC, Chapter 11, and the rules of the commission to impound, divert, or use state water, except for those exemptions specified in §21.3(c) of this chapter (relating to Fee Assessment). Only one fee is assessed for each permit.(c) The fees to be assessed under this chapter do not apply to general permits.(d) The fee shall be in proportion to the level of authorization for use of state water or for the treatment or discharge of wastewater.(e) All resulting revenue shall be deposited in the Water Resources Management Account for the purpose of supplementing other revenue appropriated by the legislature to pay the expenses of the commission in the following programs:(1) Water quality administration, including, but not limited to, inspection of wastewater treatment facilities and enforcement of the provisions of TWC, Chapter 26, the rules and orders of the commission related to wastewater discharges and waste treatment facilities, and the provisions of commission permits governing wastewater discharges and wastewater treatment facilities;(2) The Texas Clean Rivers Program, under TWC, §26.0135, which monitors and assesses water quality conditions that support water quality management decisions necessary to maintain and improve the quality of the state's water resources (as defined in TWC, §26.001(5)); and(3) Any other water resource management programs reasonably related to the activities of the persons required to pay a fee under TWC, §26.0291.</content><note type="source"><p>Source Note: The provisions of this §21.1 adopted to be effective October 6, 2002, 27 TexReg 9356.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c21/sc/s21.2"><num value="21.2">§21.2</num><heading>Definitions and Abbreviations</heading><content>(a) Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Aquaculture--The commercial propagation and/or rearing of aquatic species utilizing ponds, lakes, fabricated tanks and raceways, or other similar structures. (2) Flow--The total by volume of all wastewater discharges authorized under a permit issued in accordance with Texas Water Code (TWC), Chapter 26, expressed in order of preference, as an average flow per day, an annual average, a maximum flow per day, or an annual maximum, exclusive of variable or occasional storm water discharges. Generally, the flow amount used to calculate fees is the sum of the volumes of discharge for all outfalls of a facility, but excludes internal outfalls. However, for those facilities for which permit limitations on the volumes of discharge apply only to internal outfalls, the flow amount used to calculate fees is the sum of the volumes of discharge for all internal outfalls of the facility, exclusive of variable or occasional storm water discharges. (3) Flow type--(A) Contaminated--Sanitary wastewater, process wastewater flows, or any mixed wastewaters containing more than 10% process wastewaters, or flows containing more than one million gallons per day process wastewater regardless of the percent of total comprised of process wastewater. (B) Uncontaminated--Non-contact cooling water or mixed flows containing not more than one million gallons per day of process wastewater, with the overall mixture being at least 90% non-contact cooling water. (4) Inactive permit--A permit which authorizes a waste treatment facility which is not yet operational or where operation has been suspended, and where the commission has designated the permit as inactive. (5) Land application (retention) permit--A permit which does not authorize the discharge of wastewater into surface waters in the state, including, but not limited to, permits for systems with evaporation ponds or irrigation systems. (6) Major permit--A permit designated as a major permit, by either EPA or the commission and subject to provisions of the National Pollutant Discharge Elimination System or Texas Pollutant Discharge Elimination System's permit authority. (7) Parameter--A variable which defines a set of physical properties whose values determine the pollution potential for a waste discharge. (8) Report only permit--A permit which authorizes the variable or occasional discharge of wastewaters with a requirement that the volume of discharge be reported, but without any limitation on the volume of discharge. (9) State water--The water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake, and of every bay or arm of the Gulf of Mexico, and the storm water, floodwater, and rainwater of every river, natural stream, and watercourse in the state. State water also includes water which is imported from any source outside the boundaries of the state for use in the state and which is transported through the beds and banks of any navigable stream within the state or by utilizing any facilities owned or operated by the state. Additionally, state water injected into the ground for an aquifer storage and recovery project remains state water. State water does not include percolating groundwater, nor does it include diffuse surface rainfall runoff, groundwater seepage, or springwater before it reaches a watercourse. (10) Storm water authorization--Some individual permits authorize the variable or occasional discharge of accumulated storm water and storm water runoff, but without any specific limitation on the volume of discharge. Storm water discharge may be the only discharge authorized in a permit, or it may be included in addition to other parameters. (11) Toxicity rating--A graduated rating, with Groups I - VI, assigned to an industrial permit based on the source(s) of wastewater, the standard industrial classification of the facility, and the specific type of operation. (12) Traditional pollutants--Certain parameters typically found in wastewater permits, specifically oxygen demand (biochemical oxygen demand (BOD), chemical oxygen demand (COD), total organic carbon (TOC)), total suspended solids (TSS), and ammonia (NH3 ). (13) Uses of state water--Types of use of surface water authorized by water rights under TWC, Chapter 11. (A) Agricultural use--Any use or activity involving agriculture, including irrigation. The definition of "agriculture use" is the same as in TWC, §11.002(12), as follows: (i) cultivating the soil to produce crops for human food, animal feed, or planting seed or for the production of fibers; (ii) the practice of floriculture, viticulture, silviculture, and horticulture, including the cultivation of plants in containers or nonsoil media, by a nursery grower; (iii) raising, feeding, or keeping animals for breeding purposes or for the production of food or fiber, leather, pelts, or other tangible products having a commercial value; (iv) raising or keeping equine animals, wildlife management; and (v) planting cover crops, including cover crops cultivated for transplantation, or leaving land idle for the purposes of participating in any governmental program or normal crop or livestock rotation procedure. (B) Consumptive use--The use of state water for domestic and municipal, industrial, agricultural, or mining purposes, consistent with the meaning of these uses for which water may be appropriated under TWC, Chapter 11. (C) Hydropower use--The use of water for hydroelectric and hydromechanical power and for other mechanical devices of like nature. (D) Industrial use--The use of water in processes designed to convert materials of a lower order of value into forms having greater usability and commercial value, including, without limitation, commercial feedlot operations, commercial fish and shellfish production, and the development of power by means other than hydroelectric. (E) Irrigation use--The use of state water for the irrigation of crops, trees, and pasture land including, but not limited to golf courses and parks which do not receive water through a municipal distribution system. This use is now part of the definition of agriculture use in TWC, §11.002(12). (F) Mariculture use--The propagation and rearing of aquatic species, including shrimp, other crustaceans, finfish, mollusks, and other similar creatures in a controlled environment using brackish or marine water. This use is exempt from the need for a water right. (G) Mining use--The use of state water for mining processes including hydraulic use, drilling, washing sand and gravel, and oil field repressuring. (H) Municipal--The use of potable water within a community or municipality and its environs for domestic, recreational, commercial, or industrial purposes or for the watering of golf courses, parks and parkways, or the use of reclaimed water in lieu of potable water for the preceding purposes or the application of municipal sewage effluent on land, pursuant to a TWC, Chapter 26, permit where: (i) the application site is land owned or leased by the Chapter 26 permit holder; or (ii) the application site is within an area for which the commission has adopted a no-discharge rule. (I) Non-consumptive uses--The use of state water for those purposes not otherwise designated as consumptive uses under this section, including hydroelectric power, navigation, non-consumptive recreation, and other beneficial uses, consistent with the meaning of these uses and for which water may be appropriated under TWC, Chapter 11. (J) Other use--Any beneficial use of state water not otherwise defined herein. (K) Recharge--The use of a surface source of state water for injection into an aquifer, or for increasing the amount of natural recharge to an underground aquifer. (L) Recreational use--The use of water impounded in or diverted or released from a reservoir or watercourse for fishing, swimming, water skiing, boating, hunting, and other forms of water recreation, including aquatic and wildlife enjoyment, and aesthetic land enhancement of a subdivision, golf course, or similar development. (14) Wastewater permit--An order issued by the commission in accordance with the procedures prescribed by TWC, Chapter 26, establishing the treatment which shall be given to wastes being discharged into or adjacent to any water in the state to preserve and enhance the quality of the water and specifying the conditions under which the discharge may be made, and including those permits issued under the authority of TWC, Chapter 26, and other statutory provisions (such as the Texas Health and Safety Code, Chapter 361) for the treatment or discharge of wastewater. For the purpose of this subchapter, the term "permit" shall include any other authorization for the treatment or discharge of wastewater, including permits by rule and registrations and similar authorizations other than general permits. (A) Individual permit--A wastewater permit, as defined in TWC, §26.001, including registrations and permits by rule, issued by the commission or the executive director to a specific person or persons in accordance with the procedures prescribed in TWC, Chapter 26 (other than TWC, §26.040). (B) General permit--A wastewater permit issued under the provisions of §205.1 of this title (relating to Definitions) authorizing the discharge of waste into or adjacent to water in the state for one or more categories of waste discharge within a geographical area of the state or the entire state as provided by TWC, §26.040. (15) Water right--A right acquired under authority of TWC, Chapter 11 and the rules of the commission to impound, divert, store, convey, or use state water. (b) Abbreviations. The following abbreviations apply to this chapter. (1) (lb/day)--Pounds per day. (2) mgd--Million gallons per day. (3) mg/l--Milligrams per liter. For fee calculations, mg/l are converted to pounds per day (lb/day) using mg/l multiplied by flow volume in mgd, and multiplied by 8.34 equals lb/day. (4) SIC--Standard Industrial Classification assigned to a facility generating wastewater.</content><note type="source"><p>Source Note: The provisions of this §21.2 adopted to be effective October 6, 2002, 27 TexReg 9356.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c21/sc/s21.3"><num value="21.3">§21.3</num><heading>Fee Assessment</heading><content>(a) The fee calculation is based on the authorized limits contained in wastewater permits and water rights as of September 1 each year, without regard to the actual amount or quality of effluent discharged or the actual amount of water used.(b) Assessment for wastewater permits.(1) An annual fee is assessed against each person holding a wastewater permit. A separate fee is assessed for each wastewater permit.(2) The maximum fee which may be assessed any permit, including an aquaculture permit, is the amount, if any, set forth in Texas Water Code (TWC), Chapter 26. The minimum fee for an active permit is $1,250. The minimum fee for an inactive permit is $620.(3) In assessing a fee under this chapter, the commission considers the following factors:(A) flow volume, and type;(B) traditional pollutants;(C) toxicity rating;(D) storm water discharge;(E) major designation;(F) active or inactive status;(G) discharge or retention;(H) the designated uses and ranking classification of waters affected by waste discharges; and(I) the costs of administering the following commission programs:(i) water quality administration, including inspection of waste treatment facilities and enforcement of the provisions of TWC, Chapter 26, the rules and orders of the commission, and the provisions of commission permits governing waste discharges and waste treatment facilities;(ii) the Texas Clean Rivers Program, under TWC, §26.0135, which monitors and assesses water quality conditions that support water quality management decisions necessary to maintain and improve the quality of the state's water resources (as defined in TWC, §26.001(5)).(4) For the purpose of fee calculation, chemical oxygen demand (COD) and total organic carbon (TOC) are converted to biochemical oxygen demand (BOD) values and the highest value is used for fee calculation. The conversion rate for TOC is three pounds of TOC is equal to one pound of BOD (3:1). The conversion rate for COD is eight pounds of COD is equal to one pound of BOD (8:1).(5) Fee rate schedule. Except as provided in paragraph (6) of this subsection, the fee shall be determined as the sum of the following factors:(A) contaminated flow, an amount up to a maximum of $1,090 per million gallons per day (mgd);(B) uncontaminated flow, an amount up to a maximum of $18 per mgd;(C) traditional pollutants, an amount up to a maximum of $23 per pound per day;(D) toxic rating for industrial discharges:(i) Group I, an amount up to a maximum of $310;(ii) Group II, an amount up to a maximum of $1,090;(iii) Group III, an amount up to a maximum of $1,640;(iv) Group IV, an amount up to a maximum of $2,460;(v) Group V, an amount up to a maximum of $4,910; and(vi) Group VI, an amount up to a maximum of $9,830;(E) major permit designation, an amount up to a maximum of $3,120; and(F) storm water authorization, an amount up to a maximum of $780.(6) For the types of permits listed in this paragraph, these additional guidelines will apply in determining the fee assessment.(A) Land application (retention) permits. The fee assessed a land application permit shall be 50% of that calculated under paragraph (5) of this subsection. However, in no event shall the fee for an active land application permit be less than $1,250 per year.(B) Inactive permits. The fee assessed an inactive permit shall be 50% of that calculated under paragraph (5) of this subsection. In the event an inactive permit is for a land application operation, the fee assessed shall be 25% of that calculated under paragraph (5) of this subsection. However, in no event shall the fee for an inactive permit be less than $620 per year.(C) Storm water only permits. The fee for an active permit which authorizes discharge of storm water only, with no other wastewater, is an amount up to a maximum of $780.(D) Aquaculture permits.(i) In determining the flow volume to be used in fee calculation for an aquaculture production facility under paragraph (5) of this subsection, the flow for the facility shall be the facility's permitted annual average flow, or the facility's projected annual average flow if the permit does not have an annual average flow limitation.(ii) If the facility's permit does not have an annual average flow limitation, the facility's projected annual average flow for the upcoming period from September 1 to August 31 shall be submitted to the executive director by June 30 preceding the fee year and shall be signed and certified as required by §305.44 of this title (relating to Signatories to Applications), and that amount will be used for fee calculation.(iii) The maximum annual fee for aquaculture production facilities is the amount, if any, set forth in TWC, Chapter 26.(7) A multiplier may be applied to adjust the total fee per permit, which would also adjust the total assessment for all permits under the Water Quality Fee Program. The multiplier will be an amount up to a maximum of 1.75. As part of the approval of the annual operating budget, the executive director shall report to the commission the multiplier that will be applied for the upcoming fiscal year.(c) Assessment for water rights.(1) An annual fee is assessed against each person holding a water right, except for those exemptions specified in this section. A separate fee is assessed for each water right. These fees do not apply to water uses, including domestic and livestock use, which are exempt from the need for authorization from the commission under TWC, Chapter 11.(2) This fee will apply to all municipal or industrial water rights, or portions thereof, not directly associated with a facility or operation which is assessed a fee under subsection (b) of this section, and to all other types of water rights except agriculture water rights and certain hydroelectric water rights described in paragraph (5) of this subsection.(3) The fee for each water right authorizing diversion of more than 250 acre-feet per year for consumptive use shall be $.385 per acre-foot.(4) An authorization to impound water will be assessed a fee only when there is no associated consumptive use authorized, and then the fee will be calculated at the non-consumptive rate described in paragraph (5) of this subsection.(5) The fee for water rights for non-consumptive use above 2,500 acre feet per year, including hydropower purposes, shall be $.021 per acre-foot. The fee shall not be assessed against a holder of a non-priority hydroelectric right who owns or operates privately-owned facilities which collectively have a capacity of less than two megawatts.(6) Water which is authorized in a water right for consumptive use, but which is designated by a provision in the water right as unavailable for use, may be exempted from the assessment of a fee under paragraph (3) of this subsection.</content><note type="source"><p>Source Note: The provisions of this §21.3 adopted to be effective October 6, 2002, 27 TexReg 9356; amended to be effective July 30, 2009, 34 TexReg 4867.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c21/sc/s21.4"><num value="21.4">§21.4</num><heading>Fee Period, Adjustment, and Payment</heading><content>(a) The annual water quality fee assessment is for the period from September 1 through August 31, and is based on the authorized permit or water right limits as of September 1 each year, as stated in §21.3(a) of this title (relating to Fee Assessment).(b) New or amended wastewater permits and water rights granted after September 1 will be billed for the new or amended authorization in the annual assessment for the fee year subsequent to the fee year in which the new authorization was granted.(c) Cancellation or revocation, whether by voluntary action on the part of the holder of a wastewater permit or a water right, or as a result of proceedings initiated by the commission, will not constitute grounds for a change in the amount of a water quality fee previously assessed, or for a refund of fees previously paid.(d) Transfer of ownership of a wastewater permit or a water right will not constitute grounds for a change in the amount of a water quality fee previously assessed, or for a refund of fees previously paid. The commission shall not process a transfer request until all annual fees owed the commission by the applicant, or for the permitted facility, are paid in full. Any wastewater permit holder or water right holder to whom a permit is transferred shall be liable for payment of any associated outstanding fees and penalties owed the commission.(e) Annual water quality fees are payable within 30 days of the billing date each year. Fees shall be paid by check, certified check, electronic funds transfer, or money order payable to the Texas Commission on Environmental Quality (to be effective September 1, 2002).(f) Water quality fees are payable regardless of whether the permitted wastewater facility actually is constructed or in operation, or whether any authorized water right facility has been constructed or diversion of state water made.(g) Owners or operators of a facility failing to make payment of the fees imposed under this chapter when due shall be assessed penalties and interest in accordance with Chapter 12 of this title (relating to Payment of Fees). In addition, failure to make payment in accordance with this chapter constitutes a violation subject to enforcement pursuant to the provisions of Texas Water Code, §26.123.</content><note type="source"><p>Source Note: The provisions of this §21.4 adopted to be effective October 6, 2002, 27 TexReg 9356.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c25"><num value="25">CHAPTER 25</num><heading>ENVIRONMENTAL TESTING LABORATORY ACCREDITATION AND CERTIFICATION</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c25/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c25/scA/s25.1"><num value="25.1">§25.1</num><heading>Purpose</heading><content>This chapter describes requirements for accreditation and certification of environmental testing laboratories. Accreditation is voluntary; however, the commission may accept environmental testing laboratory data and analyses for use in commission decisions regarding any matter under the commission's jurisdiction relating to permits or other authorizations, compliance matters, enforcement actions, or corrective actions only if the data and analyses are prepared by an environmental testing laboratory accredited by the commission under this chapter, except as provided in §25.6 of this title (relating to Conditions Under Which the Commission May Accept Analytical Data).</content><note type="source"><p>Source Note: The provisions of this §25.1 adopted to be effective September 12, 2002, 27 TexReg 8480; amended to be effective October 7, 2010, 35 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scA/s25.2"><num value="25.2">§25.2</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.(1) Accreditation--An authorization granted by the executive director to an environmental testing laboratory that meets requirements of this subchapter and Subchapter B of this chapter (relating to Environmental Testing Laboratory Accreditation).(2) Accreditation body--An agency recognized by the National Environmental Laboratory Accreditation Program (NELAP) that grants accreditation on behalf of a state, territory, or federal agency.(3) Analyte--A constituent for which an environmental sample is analyzed.(4) Certification--An authorization granted by the executive director to an environmental testing laboratory that analyzes drinking water and which meets requirements of this subchapter and Subchapter C of this chapter (relating to Environmental Testing Laboratory Certification).(5) Corrective action report--A report prepared by an environmental testing laboratory and submitted to the executive director that describes the specific actions taken or planned to address negative findings (deficiencies) contained in an environmental testing laboratory assessment report, actions taken or planned to prevent recurrence, the timetable for completing each action, and the means to be used to document completion of each action.(6) Environmental testing laboratory--A scientific laboratory that performs analyses to determine the chemical, molecular, or pathogenic components of environmental media for regulatory compliance.(7) Environmental testing laboratory assessment--The process used by an accrediting or certifying body to measure the performance, effectiveness, and conformity of an environmental testing laboratory to the standards for accreditation as specified in §25.9 of this title (relating to Standards for Environmental Testing Laboratory Accreditation) or certification as specified in §25.50 of this title (relating to Standards for Environmental Testing Laboratory Certification) and the requirements of this chapter. An environmental testing laboratory assessment may include a physical inspection of a laboratory and its operations.(8) Fields of accreditation--The matrix, technology, method, and analyte or analyte group for which an environmental testing laboratory may be accredited.(9) Fields of certification--The methods and analytes for which an environmental testing laboratory may be certified. The methods and analytes are used in a commission decision relating to compliance with the Safe Drinking Water Act.(10) In-house environmental testing laboratory--An environmental testing laboratory that provides analytical data to its operator for a commission decision relating to:(A) permits or other authorizations issued to the laboratory's operator;(B) compliance matters and enforcement actions taken concerning the laboratory's operator; or(C) corrective actions taken by the laboratory's operator to satisfy statutes, rules, or commission orders.(11) Laboratory personnel--Individuals who manage, perform, maintain, or verify the work or the quality of the work at the environmental testing laboratory.(12) Matrix--Sample type, including drinking water; nonpotable water; solid and chemical materials; air and emissions; and biological tissue.(13) Mobile environmental testing laboratory--An environmental testing laboratory capable of being moved from one site to another site.(14) National Environmental Laboratory Accreditation Program (NELAP)--The voluntary organization of state, territorial, and federal accreditation bodies whose primary purpose is to grant mutually acceptable accreditations to environmental testing laboratories.(15) On-site environmental testing laboratory--An in-house environmental testing laboratory located at a regulated entity.(16) Operator--An individual authorized to act on behalf of the environmental testing laboratory.(17) Primary accreditation--Accreditation of an environmental testing laboratory according to the standards for accreditation as specified in §25.9 of this title and the requirements of this chapter.(18) Proficiency test sample--A sample, the composition of which is unknown by an environmental testing laboratory or the individual performing the analysis. The sample is used to evaluate whether the laboratory and analyst can produce results within the specified acceptance criteria.(19) Quality system--A structured and documented management system describing the policies, objectives, principles, organizational authority, responsibilities, accountability, and implementation plan of an organization for ensuring the quality of its work processes, products, and services. The quality system provides the framework for planning, implementing, and assessing work performed by the environmental testing laboratory for quality assurance and quality control.(20) Same site--All structures, other appurtenances, and improvements located on one or more contiguous properties.(21) Secondary accreditation--Accreditation granted by the executive director to an environmental testing laboratory that has been granted primary accreditation by another National Environmental Laboratory Accreditation Program accreditation body.</content><note type="source"><p>Source Note: The provisions of this §25.2 adopted to be effective September 12, 2002, 27 TexReg 8480; amended to be effective August 24, 2005, 30 TexReg 4841; amended to be effective October 7, 2010, 35 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scA/s25.4"><num value="25.4">§25.4</num><heading>Applicability</heading><content>(a) An environmental testing laboratory must be accredited according to this chapter, except as provided in §25.6 of this title (relating to Conditions Under Which the Commission May Accept Analytical Data), if the laboratory provides analytical data which is used for a commission decision relating to a:(1) permit;(2) authorization;(3) compliance action;(4) enforcement action;(5) corrective action;(6) characterization of an environmental process or condition; or(7) assessment of an environmental process or condition.(b) An in-house environmental testing laboratory is to be accredited if it provides analytical data to a third party and the data is used for a commission decision relating to a:(1) permit;(2) authorization;(3) compliance action;(4) enforcement action;(5) corrective action;(6) characterization of an environmental process or condition; or(7) assessment of an environmental process or condition.(c) Subsections (a) and (b) of this section apply only to environmental testing laboratory results prepared and submitted to the commission on or after July 1, 2008.(d) An environmental testing laboratory that provides analytical data used for a commission decision relating to the Safe Drinking Water Act must be:(1) accredited according to this subchapter and Subchapter B of this chapter (relating to Environmental Testing Laboratory Accreditation); or(2) certified by the United States Environmental Protection Agency.</content><note type="source"><p>Source Note: The provisions of this §25.4 adopted to be effective September 12, 2002, 27 TexReg 8480; amended to be effective October 7, 2010, 35 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scA/s25.6"><num value="25.6">§25.6</num><heading>Conditions Under Which the Commission May Accept Analytical Data</heading><content>The commission may accept analytical data provided by an environmental testing laboratory, for any matter under the commission's jurisdiction relating to permits or other authorizations, compliance matters, enforcement actions, or corrective actions, that is not accredited according to this chapter if the laboratory:(1) is an on-site or in-house environmental testing laboratory that is:(A) inspected at least every three years by the executive director;(B) located in another state and accredited or periodically inspected by that state; or(C) inspected at least every three years by the executive director and is performing work:(i) for another company with a unit located on the same site; or(ii) without compensation for a governmental agency or a charitable organization.(2) is accredited under federal law, including certification by the United States Environmental Protection Agency to provide analytical data for decisions relating to compliance with the Safe Drinking Water Act;(3) provides analytical data necessary for emergency response activities and the required analytical data are not otherwise available from an environmental testing laboratory accredited according to this chapter or federal law; or(4) provides analytical data for which the commission does not offer accreditation.</content><note type="source"><p>Source Note: The provisions of this §25.6 adopted to be effective September 12, 2002, 27 TexReg 8480; amended to be effective August 24, 2005, 30 TexReg 4841.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scA/s25.8"><num value="25.8">§25.8</num><heading>Contracting</heading><content>The executive director may contract with persons to provide services required by this chapter. The executive director may authorize contractors to collect reasonable fees for the services provided.</content><note type="source"><p>Source Note: The provisions of this §25.8 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c25/scB"><num value="B">SUBCHAPTER B</num><heading>ENVIRONMENTAL TESTING LABORATORY ACCREDITATION</heading><section identifier="/us/state/tx/tac/t30/p1/c25/scB/s25.9"><num value="25.9">§25.9</num><heading>Standards for Environmental Testing Laboratory Accreditation</heading><content>(a) Until July 1, 2011, accreditation, must be based on an environmental testing laboratory's conformance to National Environmental Laboratory Accreditation Conference standards approved June 2003 and the requirements of this chapter.(b) After June 30, 2011, accreditation must be based on an environmental testing laboratory's conformance to the most current standards adopted by the National Environmental Laboratory Accreditation Program and the requirements of this chapter.</content><note type="source"><p>Source Note: The provisions of this §25.9 adopted to be effective September 12, 2002, 27 TexReg 8480; amended to be effective August 24, 2005, 30 TexReg 4841; amended to be effective July 19, 2006, 31 TexReg 5640; amended to be effective October 7, 2010, 35 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scB/s25.10"><num value="25.10">§25.10</num><heading>Fields of Accreditation</heading><content>(a) The executive director shall identify and make available to the public a list of the fields of accreditation offered under this chapter. A list of the fields of accreditation shall be made available on the commission's website and upon request from Agency Communications.(b) The executive director may modify the fields of accreditation offered under this chapter after providing 30 days notice on the commission's website.</content><note type="source"><p>Source Note: The provisions of this §25.10 adopted to be effective September 12, 2002, 27 TexReg 8480; amended to be effective October 7, 2010, 35 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scB/s25.12"><num value="25.12">§25.12</num><heading>Initial Application for Accreditation</heading><content>(a) An application for accreditation shall be made on a form provided by the executive director. The application must be submitted to the executive director with any documents and records required in the application or requested by the executive director and the fee provided in §25.30 of this title (relating to Accreditation Fees).(b) The operator of an environmental testing laboratory may request that noncontiguous facilities and mobile laboratories be accredited as a single entity, if the facilities and mobile laboratories operate as a single laboratory under the same:(1) ownership;(2) day-to-day management;(3) day-to-day technical direction; and(4) quality system, including document management, records management, and test reporting.(c) The operator of an environmental testing laboratory may submit an application for initial accreditation or an application to increase its fields of accreditation at any time.</content><note type="source"><p>Source Note: The provisions of this §25.12 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scB/s25.14"><num value="25.14">§25.14</num><heading>Term of Accreditation</heading><content>(a) The executive director shall award accreditation for a period of one year if an environmental testing laboratory's application and operations conform to the applicable standards for accreditation as specified in §25.9 of this title (relating to Standards for Environmental Testing Laboratory Accreditation) and this chapter.(b) The executive director may issue an interim accreditation for up to 12 months to an environmental testing laboratory that meets the standards for accreditation as specified in §25.9 of this title and requirements of this chapter except that an environmental testing laboratory assessment has not been completed because the executive director has been unable to schedule an assessment within six months of receiving a complete application for accreditation.</content><note type="source"><p>Source Note: The provisions of this §25.14 adopted to be effective September 12, 2002, 27 TexReg 8480; amended to be effective October 7, 2010, 35 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scB/s25.16"><num value="25.16">§25.16</num><heading>Renewal Application for Accreditation</heading><content>(a) The executive director must receive an environmental testing laboratory's application to renew the laboratory's accreditation along with the applicable fees no later than the date on which the accreditation expires.(b) The operator of an environmental testing laboratory that fails to submit an application to renew accreditation before the date on which the accreditation expires must apply for and meet all requirements for a new accreditation, including an environmental testing laboratory assessment.(c) Modifications made during the term of an accreditation to increase the number of an environmental testing laboratory's fields of accreditation shall be renewed on the accreditation renewal date, regardless of the date of the modification.</content><note type="source"><p>Source Note: The provisions of this §25.16 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scB/s25.18"><num value="25.18">§25.18</num><heading>Environmental Testing Laboratory Assessments</heading><content>(a) Environmental testing laboratory assessments shall be conducted:(1) before accreditation is granted, except as provided in §25.14 of this title (relating to Term of Accreditation); and(2) at least every two years after an environmental testing laboratory receives accreditation.(b) Assessments may be announced or unannounced.</content><note type="source"><p>Source Note: The provisions of this §25.18 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scB/s25.20"><num value="25.20">§25.20</num><heading>Proficiency Test Sample Analyses</heading><content>(a) The operator of an environmental testing laboratory applying for initial accreditation shall ensure that two proficiency test samples are successfully analyzed, if available, according to the standards for accreditation as specified in §25.9 of this title (relating to Standards for Environmental Testing Laboratory Accreditation), for each requested field of accreditation and reported to the executive director.(b) The operator of an accredited environmental testing laboratory shall ensure at least two proficiency test samples, if available, are successfully analyzed and reported to the executive director each year for each field of accreditation according to the standards for accreditation as specified in §25.9 of this title. An environmental testing laboratory that does not meet the requirements of this subsection may participate in a supplemental proficiency test study according to the standards for accreditation.(c) Proficiency test samples, if available, shall be purchased from a National Environmental Laboratory Accreditation Program designated provider.</content><note type="source"><p>Source Note: The provisions of this §25.20 adopted to be effective September 12, 2002, 27 TexReg 8480; amended to be effective October 7, 2010, 35 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scB/s25.22"><num value="25.22">§25.22</num><heading>Secondary Accreditation of Out-of-State Environmental Testing Laboratories</heading><content>(a) The executive director shall grant or renew the secondary accreditation of an environmental testing laboratory located in another state and accredited by another National Environmental Laboratory Accreditation Program accreditation body within 30 days after receiving a complete application along with the appropriate fee according to §25.30 of this title (relating to Accreditation Fees) if the laboratory's existing accreditation includes the fields of accreditation for which the laboratory has applied to the executive director.(b) The executive director shall notify an environmental testing laboratory in writing within 30 days of granting or denying accreditation.</content><note type="source"><p>Source Note: The provisions of this §25.22 adopted to be effective September 12, 2002, 27 TexReg 8480; amended to be effective October 7, 2010, 35 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scB/s25.24"><num value="25.24">§25.24</num><heading>Duties and Responsibilities of Accredited Environmental Testing Laboratories</heading><content>By applying for or accepting accreditation, the operator of the laboratory certifies the information contained in the application is true and correct and agrees to:(1) provide reasonable access to the executive director to facilities, personnel, documents, records, data, analyses, and operations which the executive director determines are necessary for accreditation;(2) use and display the accreditation certificate according to the standards for accreditation as specified in §25.9 of this title (relating to Standards for Environmental Testing Laboratory Accreditation); and(3) operate the environmental testing laboratory and maintain its accreditation according to the standards for accreditation and this chapter.</content><note type="source"><p>Source Note: The provisions of this §25.24 adopted to be effective September 12, 2002, 27 TexReg 8480; amended to be effective October 7, 2010, 35 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scB/s25.26"><num value="25.26">§25.26</num><heading>Withdrawal from Accreditation Program</heading><content>The operator of an environmental testing laboratory may surrender the laboratory's accreditation, in whole or in part, by notifying the executive director in writing at any time.</content><note type="source"><p>Source Note: The provisions of this §25.26 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scB/s25.30"><num value="25.30">§25.30</num><heading>Accreditation Fees</heading><content>(a) The executive director shall establish accreditation fees that cover program costs, including costs associated with application review; initial, routine, and follow-up inspections; and preparation of reports.(b) The operator of an environmental testing laboratory seeking primary accreditation shall pay the following fees:(1) an annual administrative fee of $500; and(2) an annual accreditation fee based on the categories for which the laboratory is accredited.(c) Excluding any laboratory operated by the commission, the operator of an environmental testing laboratory seeking secondary accreditation shall pay the following fees:(1) until September 1, 2011, an annual administrative fee of $250;(2) after August 31, 2011, an annual administrative fee of $350; and(3) an annual accreditation fee based on the categories for which the laboratory is accredited.(d) Until September 1, 2011, the categories and annual fees for accreditation relating to drinking water are:(1) microbiology--$75;(2) radiochemistry--$225;(3) metals--$225;(4) general chemistry--$225;(5) disinfection by-products--$150;(6) volatile organic compounds by gas chromatograph mass spectrometry--$150;(7) semivolatile organic compounds by gas chromatograph mass spectrometry--$150;(8) organic compounds by gas chromatography using detection other than mass spectrometry--$300;(9) organic compounds by high performance liquid chromatography--$300;(10) polychlorinated dibenzo-p-dioxins and dibenzofurans--$150; and(11) asbestos--$150.(e) Until September 1, 2011, the categories and annual fees for accreditation relating to non-potable water are:(1) microbiology--$75;(2) aquatic toxicity--$150;(3) radiochemistry--$150;(4) metals--$225;(5) general chemistry--$225;(6) volatile organic compounds by gas chromatograph mass spectrometry--$150;(7) semivolatile organic compounds by gas chromatograph mass spectrometry--$150;(8) organic compounds by gas chromatography using detection other than mass spectrometry:(A) total petroleum hydrocarbons by agency methods 1005 only--$150; and(B) agency method 1005 and/or any fields of accreditation other than agency method 1005--$300;(9) organic compounds by high performance liquid chromatography--$300;(10) polychlorinated dibenzo-p-dioxins and dibenzofurans--$150; and(11) asbestos--$150.(f) Until September 1, 2011, the categories and annual fees for accreditation relating to biologic tissue are:(1) radiochemistry--$150;(2) metals--$225;(3) general chemistry--$225;(4) volatile organic compounds by gas chromatograph mass spectrometry--$150;(5) semivolatile organic compounds by gas chromatograph mass spectrometry--$150;(6) organic compounds by gas chromatography using detection other than mass spectrometry--$300;(7) organic compounds by high performance liquid chromatography--$300; and(8) polychlorinated dibenzo-p-dioxins and dibenzofurans--$150.(g) Until September 1, 2011, the categories and annual fees for accreditation relating to solid and chemical materials are:(1) microbiology--$75;(2) radiochemistry--$150;(3) metals--$225;(4) waste characteristics--$150;(5) general chemistry--$225;(6) volatile organic compounds by gas chromatograph mass spectrometry--$150;(7) semivolatile organic compounds by gas chromatograph mass spectrometry--$150;(8) organic compounds by gas chromatography using detection other than mass spectrometry:(A) total petroleum hydrocarbons by agency method 1005 only--$150; and(B) agency method 1005 and/or any fields of accreditation other than agency method 1005--$300;(9) organic compounds by high performance liquid chromatography--$300;(10) polychlorinated dibenzo-p-dioxins and dibenzofurans--$150; and(11) asbestos--$150.(h) Until September 1, 2011, the categories and annual fees for accreditation relating to air and emissions are:(1) radiochemistry--$150;(2) particulate matter--$75;(3) metals--$225;(4) general chemistry--$150;(5) volatile organic compounds by gas chromatograph mass spectrometry--$150;(6) semivolatile organic compounds by gas chromatograph mass spectrometry--$150;(7) organic compounds by gas chromatography using detection other than mass spectrometry--$300;(8) organic compounds by high performance liquid chromatography--$300;(9) polychlorinated dibenzo-p-dioxins and dibenzofurans--$150; and(10) asbestos and airborne fibers by microscopy--$150.(i) After August 31, 2011, the categories and annual fees for accreditation relating to drinking water are:(1) microbiology--$255;(2) radiochemistry--$510;(3) metals--$385;(4) general chemistry--$510;(5) disinfection by-products--$255;(6) volatile organic compounds by gas chromatograph mass spectrometry--$255;(7) semivolatile organic compounds by gas chromatograph mass spectrometry--$385;(8) organic compounds by gas chromatography using detection other than mass spectrometry--$510;(9) organic compounds by high performance liquid chromatography--$510;(10) polychlorinated dibenzo-p-dioxins and dibenzofurans--$385; and(11) asbestos--$385.(j) After August 31, 2011, the categories and annual fees for accreditation relating to non-potable water are:(1) microbiology--$255;(2) aquatic toxicity--$510;(3) radiochemistry--$510;(4) metals--$385;(5) general chemistry--$510;(6) volatile organic compounds by gas chromatograph mass spectrometry--$255;(7) semivolatile organic compounds by gas chromatograph mass spectrometry--$385;(8) organic compounds by gas chromatography using detection other than mass spectrometry:(A) total petroleum hydrocarbons by agency methods 1005 only--$255; and(B) agency method 1005 and/or any fields of accreditation other than agency method 1005--$510;(9) organic compounds by high performance liquid chromatography--$510;(10) polychlorinated dibenzo-p-dioxins and dibenzofurans--$385; and(11) waste characteristics--$255.(k) After August 31, 2011, the categories and annual fees for accreditation relating to biologic tissue are:(1) radiochemistry--$510;(2) metals--$510;(3) general chemistry--$510;(4) volatile organic compounds by gas chromatograph mass spectrometry--$385;(5) semivolatile organic compounds by gas chromatograph mass spectrometry--$385;(6) organic compounds by gas chromatography using detection other than mass spectrometry--$510;(7) organic compounds by high performance liquid chromatography--$510; and(8) polychlorinated dibenzo-p-dioxins and dibenzofurans--$385.(l) After August 31, 2011, the categories and annual fees for accreditation relating to solid and chemical materials are:(1) microbiology--$255;(2) radiochemistry--$510;(3) metals--$385;(4) waste characteristics--$255;(5) general chemistry--$510;(6) volatile organic compounds by gas chromatograph mass spectrometry--$255;(7) semivolatile organic compounds by gas chromatograph mass spectrometry--$385;(8) organic compounds by gas chromatography using detection other than mass spectrometry:(A) total petroleum hydrocarbons by agency method 1005 only--$255; and(B) agency method 1005 and/or any fields of accreditation other than agency method 1005--$510;(9) organic compounds by high performance liquid chromatography--$510;(10) polychlorinated dibenzo-p-dioxins and dibenzofurans--$385; and(11) aquatic toxicity--$510.(m) After August 31, 2011, the categories and annual fees for accreditation relating to air and emissions are:(1) radiochemistry--$510;(2) particulate matter--$255;(3) metals--$385;(4) general chemistry--$510;(5) volatile organic compounds by gas chromatograph mass spectrometry--$255;(6) semivolatile organic compounds by gas chromatograph mass spectrometry--$385;(7) organic compounds by gas chromatography using detection other than mass spectrometry--$510;(8) organic compounds by high performance liquid chromatography--$510; and(9) polychlorinated dibenzo-p-dioxins and dibenzofurans--$385.(n) Until September 1, 2011, the operator of an environmental testing laboratory located in another state and applying for primary accreditation shall also pay a fee equal to the reasonable travel costs (including transportation, lodging, per diem, and any telephone charges) associated with conducting an assessment at the laboratory.(o) After August 31, 2011, the operator of an environmental testing laboratory located in another state and applying for primary accreditation shall also pay a fee equal to the labor, reasonable travel costs (including, but not limited to, transportation, lodging, per diem, and any telephone charges), and other reasonable costs associated with conducting an assessment at the laboratory.(p) The following fees shall be assessed, as applicable, in addition to any other fees:(1) to modify an existing accreditation and add one or more fields of accreditation during the term of the accreditation--$250;(2) to replace an accreditation certificate--$50; and(3) to reinstate a suspended accreditation--$250.(q) All fees are nonrefundable.</content><note type="source"><p>Source Note: The provisions of this §25.30 adopted to be effective September 12, 2002, 27 TexReg 8480; amended to be effective October 7, 2010, 35 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scB/s25.32"><num value="25.32">§25.32</num><heading>Denial of Accreditation Application and Revocation of Accreditation</heading><content>(a) Denial of Accreditation Application. The executive director may deny an initial or renewal application for environmental testing laboratory accreditation, in whole or in part, for insufficiency or for cause. The executive director shall notify the laboratory of the intent to deny the application and advise the applicant of the opportunity to file a motion to overturn under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision). The executive director may deny an accreditation application if a laboratory's operator or personnel:(1) fails to submit a completed application;(2) fails to submit the required fees;(3) fails to successfully analyze and report required proficiency test samples for applicable fields of accreditation;(4) fails to implement a quality system;(5) fails to document that laboratory personnel meet personnel qualifications of education, training, and experience;(6) fails to allow the executive director entry during normal business hours for an environmental testing laboratory assessment;(7) fails to pass required environmental testing laboratory assessments;(8) fails to submit a corrective action report acceptable to the executive director identifying actions the environmental testing laboratory will take to correct the deficiencies identified in the environmental testing laboratory assessment report:(A) the executive director will provide the environmental testing laboratory with two opportunities to resolve its deficiencies. The first corrective action report must be submitted to the executive director by the environmental testing laboratory within 30 days of receiving an assessment report. Upon request, the executive director may allow up to 60 days from the date the environmental testing laboratory received an assessment report to submit the corrective action report;(B) if the first corrective action report does not sufficiently address the deficiencies identified in the environmental testing laboratory assessment report, the executive director shall notify the environmental testing laboratory of the unresolved deficiencies within no more than 60 days; and(C) if, after being notified by the executive director that the first corrective action report does not sufficiently address one or more of the deficiencies identified in the environmental testing laboratory assessment report, a second corrective action report that sufficiently addresses the deficiencies identified in the environmental testing laboratory assessment report must be submitted within 30 days of being notified by the executive director;(9) fails to implement actions to correct the deficiencies identified in the environmental testing laboratory assessment report within the time approved by the executive director;(10) misrepresents any fact pertinent to receiving or maintaining accreditation;(11) is indebted to the state for a fee, penalty, or tax imposed by a statute within the commission's jurisdiction or a rule adopted under such a statute; or(12) any other reason which causes the executive director to determine that quality of the data being produced by the laboratory's personnel is unreliable or inaccurate, based on the facts of the case.(b) Revocation of Accreditation. After notice and opportunity for hearing according to Chapter 80 of this title (relating to Contested Case Hearings), the commission may revoke an environmental testing laboratory's accreditation, in whole or in part, for any of the reasons listed in subsection (a) of this section or if the operator laboratory:(1) fails to correct deficiencies that led to a suspension of accreditation within six months of the notice of suspension; or(2) is convicted in any jurisdiction of charges relating to the falsification of any report relating to a laboratory analysis.(c) A laboratory's application for accreditation may be denied or a laboratory's accreditation may be revoked, after notice and opportunity for hearing, for any other reason if the executive director determines that the quality of the data being produced by the laboratory's personnel is unreliable or inaccurate, based on the facts of the case.(d) The commission shall revoke an environmental testing laboratory's accreditation for each applicable field of accreditation if, after being suspended due to failure of proficiency test samples, an environmental testing laboratory's analysis of the next proficiency test sample results in three consecutively failed proficiency test samples.(e) Waiting period.(1) If the operator of an environmental testing laboratory is not successful in correcting deficiencies as required by the standards for accreditation as specified in §25.9 of this title (relating to Standards for Environmental Testing Laboratory Accreditation) and this chapter and the laboratory's application is denied in whole or in part, the laboratory's operator must wait a minimum of six months before reapplying for accreditation.(2) An environmental testing laboratory whose accreditation is revoked, in whole or in part, shall wait a minimum of one year before reapplying for accreditation, and the laboratory shall meet all requirements for a new accreditation, including an environmental testing laboratory assessment.</content><note type="source"><p>Source Note: The provisions of this §25.32 adopted to be effective September 12, 2002, 27 TexReg 8480; amended to be effective October 7, 2010, 35 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scB/s25.34"><num value="25.34">§25.34</num><heading>Suspension of Accreditation</heading><content>(a) After notice and opportunity for hearing according to Chapter 80 of this title (relating to Contested Case Hearings), the commission may suspend an environmental testing laboratory's accreditation, in whole or in part, for up to six months. Reasons to suspend an environmental testing laboratory's accreditation includes, but is not limited to, failing to:(1) maintain a quality system;(2) comply with minimum performance and quality assurance standards;(3) maintain records of the laboratory's personnel, operations, data, or analysis;(4) successfully complete required proficiency tests;(5) employ staff that meet required personnel qualifications for education, training, and experience; or(6) notify the executive director of changes in accreditation criteria.(b) Accreditation shall be reinstated if the executive director determines that the environmental testing laboratory personnel have:(1) effectively corrected and taken steps to prevent a recurrence of the deficiencies that led to the suspension of accreditation;(2) complied with all requirements imposed by the executive director or the commission; and(3) submitted an application for reinstatement that conforms to the standards for accreditation as specified in §25.9 of this title (relating to Standards for Environmental Testing Laboratory Accreditation) and the requirements of this chapter.</content><note type="source"><p>Source Note: The provisions of this §25.34 adopted to be effective September 12, 2002, 27 TexReg 8480; amended to be effective October 7, 2010, 35 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scB/s25.38"><num value="25.38">§25.38</num><heading>Accreditation Advisory Committee</heading><content>(a) The executive director shall establish a technical advisory committee to assist in interpreting National Environmental Laboratory Accreditation Conference standards and to advise the executive director and the commission on technical matters relating to the accreditation program.(b) The technical advisory committee shall function according to Texas Water Code, §5.107 and Chapter 5 of this title (relating to Advisory Committees).</content><note type="source"><p>Source Note: The provisions of this §25.38 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c25/scC"><num value="C">SUBCHAPTER C</num><heading>ENVIRONMENTAL TESTING LABORATORY CERTIFICATION</heading><section identifier="/us/state/tx/tac/t30/p1/c25/scC/s25.50"><num value="25.50">§25.50</num><heading>Standards for Environmental Testing Laboratory Certification</heading><content>Certification of an environmental testing laboratory that analyzes samples for compliance with the Safe Drinking Water Act shall be based on a laboratory's conformance to standards contained in the Manual for the Certification of Laboratories Analyzing Drinking Water, Fourth Edition, EPA 815-B-97-001, March 1997; and the Lab Cert Manual Errata, Labcert Bulletin, EPA-815-N-99-002a, April 1999, published by the EPA, and the requirements of this chapter.</content><note type="source"><p>Source Note: The provisions of this §25.50 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scC/s25.52"><num value="25.52">§25.52</num><heading>Fields of Certification</heading><content>(a) The executive director shall identify and make available to the public the fields of certification offered under this chapter. A list of fields of certification shall be made available on the commission's website and upon request from the Compliance Support Division and Agency Communications.(b) The executive director may modify the fields of certification offered under this chapter with 30 days' notice on the commission's website.</content><note type="source"><p>Source Note: The provisions of this §25.52 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scC/s25.54"><num value="25.54">§25.54</num><heading>Initial Application for Certification</heading><content>(a) An application for certification must be made on a form provided by the executive director. The application must be submitted to the executive director with any documents and records required in the application or requested by the executive director and the fee provided in §25.70 of this title (relating to Certification Fees).(b) The operator of an environmental testing laboratory may request that noncontiguous facilities be certified as a single entity if the facilities operate as a single laboratory under the same:(1) ownership;(2) day-to-day management;(3) day-to-day technical direction; and(4) quality system, including document management, records management, and test reporting.(c) The operator of an environmental testing laboratory may submit an application for initial certification or an application to increase its fields of certification at any time.</content><note type="source"><p>Source Note: The provisions of this §25.54 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scC/s25.56"><num value="25.56">§25.56</num><heading>Term of Certification</heading><content>(a) The executive director shall award certification for a period of one year if an environmental testing laboratory's application and operations conform to standards for certification and this chapter.(b) The executive director may issue an interim certification for up to 12 months to an environmental testing laboratory that meets standards for certification and requirements of this chapter except that an environmental testing laboratory assessment has not been completed because the executive director has been unable to schedule the assessment within six months of receiving a complete application for accreditation.</content><note type="source"><p>Source Note: The provisions of this §25.56 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scC/s25.58"><num value="25.58">§25.58</num><heading>Renewal Applications for Certification</heading><content>(a) The executive director must receive an environmental testing laboratory's application to renew the laboratory's certification along with the applicable fees no later than the date on which the certification expires.(b) The operator of an environmental testing laboratory that fails to submit an application to its renew certification before the date on which the certification expires must apply for and meet all requirements for a new certification, including an environmental testing laboratory assessment.(c) Modifications made during the term of a certification to increase the number of an environmental testing laboratory's fields of certification shall be renewed on the certification renewal date, regardless of the date of the modification.</content><note type="source"><p>Source Note: The provisions of this §25.58 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scC/s25.60"><num value="25.60">§25.60</num><heading>Environmental Testing Laboratory Certification Assessments</heading><content>(a) Environmental testing laboratory assessments shall be conducted:(1) before certification is granted, except as provided in §25.56 of this title (relating to Term of Certification); and(2) at least every three years after an environmental testing laboratory receives certification.(b) Assessments may be announced or unannounced.</content><note type="source"><p>Source Note: The provisions of this §25.60 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scC/s25.62"><num value="25.62">§25.62</num><heading>Proficiency Test Sample Analyses</heading><content>(a) The operator of an environmental testing laboratory applying for initial certification shall ensure that laboratory personnel successfully analyze one proficiency test sample for each requested field of certification. The proficiency test samples shall be analyzed no more than 12 months prior to submitting the application.(b) The operator of a certified environmental testing laboratory shall ensure that laboratory personnel analyze at least two proficiency test samples each year approximately six months apart. The operator of a certified environmental testing laboratory shall ensure that laboratory personnel successfully analyze one proficiency test sample for each field of certification each year. An environmental testing laboratory that does not meet the requirements of this subsection may participate in a supplemental proficiency test study.(c) The executive director shall determine the environmental testing laboratory's certification status for all affected fields of certification within 60 days of determining that laboratory personnel failed to analyze proficiency test samples successfully according to this subsection.(d) Proficiency test samples, if available, shall be purchased from a National Environmental Laboratory Accreditation Program-designated provider or a provider approved by the National Institute of Standards and Technology.</content><note type="source"><p>Source Note: The provisions of this §25.62 adopted to be effective September 12, 2002, 27 TexReg 8480; amended to be effective July 19, 2006, 31 TexReg 5640.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scC/s25.64"><num value="25.64">§25.64</num><heading>Secondary Certification of Out-of-State Environmental Testing Laboratories</heading><content>(a) The executive director shall grant or renew within 30 days of receipt of the application the secondary certification of an environmental testing laboratory located in another state that is certified by the EPA or a state other than Texas if the:(1) laboratory submits an application to the executive director that conforms to the standards for certification and this chapter;(2) laboratory's existing certification includes the fields of certification for which the laboratory has applied to the executive director; and(3) laboratory pays fees assessed under this chapter.(b) The executive director shall notify an environmental testing laboratory in writing within 30 days of granting or denying certification.</content><note type="source"><p>Source Note: The provisions of this §25.64 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scC/s25.66"><num value="25.66">§25.66</num><heading>Duties and Responsibilities of Certified Laboratories</heading><content>By applying for or accepting certification, the operator of an environmental testing laboratory certifies that information contained in the application is true and correct and agrees to:(1) provide reasonable access to the executive director to facilities, personnel, documents, records, data, analyses, and operations which the executive director determines are necessary for certification; and(2) operate the environmental testing laboratory and maintain its certification according to the standards for certification and this chapter.</content><note type="source"><p>Source Note: The provisions of this §25.66 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scC/s25.68"><num value="25.68">§25.68</num><heading>Withdrawal from Certification Program</heading><content>The operator of an environmental testing laboratory may surrender the laboratory's certification, in whole or in part, by notifying the executive director in writing at any time.</content><note type="source"><p>Source Note: The provisions of this §25.68 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scC/s25.70"><num value="25.70">§25.70</num><heading>Certification Fees</heading><content>(a) The executive director shall establish certification fees that cover program costs, including costs associated with application review; initial, routine, and follow-up inspections; and preparation of reports.(b) The operator of a laboratory seeking primary certification shall pay the following fees:(1) an administrative fee of $500 per year; and(2) an annual certification fee based on the categories for which the laboratory is certified.(c) The operator of a laboratory seeking secondary certification shall pay the following fees:(1) an administrative fee of $250 per year; and(2) an annual certification fee based on the categories for which the laboratory is certified.(d) The categories and annual fees are:(1) microbiology -- $75;(2) radiochemistry -- $225;(3) metals -- $225;(4) general chemistry -- $225;(5) disinfection by-products -- $150;(6) volatile organic compounds by gas chromatograph mass spectrometry -- $150;(7) semivolatile organic compounds by gas chromatograph mass spectrometry -- $150;(8) organic compounds by gas chromatography using detection other than mass spectrometry -- $300;(9) organic compounds by high performance liquid chromatography -- $300;(10) polychlorinated dibenzo-p-dioxins and dibenzofurans -- $150; and(11) asbestos -- $150.(e) The operator of an environmental testing laboratory located in another state and applying for primary certification shall also pay a fee equal to the reasonable travel costs (including transportation, lodging, per diem, and telephone and duplication charges) associated with conducting an assessment at the laboratory.(f) The following fees shall be assessed, as applicable, in addition to the annual administrative and category fees and travel costs:(1) to modify an existing certification and add one or more fields of certification -- $250;(2) to replace a certification certificate -- $50; and(3) to reinstate a suspended certification -- $250.(g) All fees are nonrefundable.</content><note type="source"><p>Source Note: The provisions of this §25.70 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scC/s25.74"><num value="25.74">§25.74</num><heading>Denial of Certification Application</heading><content>(a) Insufficiency. The executive director may deny an initial or renewal application for environmental testing laboratory certification for insufficiency. The executive director shall notify the laboratory of the intent to deny the application and advise the applicant of the opportunity to file a motion to overturn under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision). The executive director may determine an application is insufficient if laboratory personnel fail to:(1) submit a completed application;(2) submit the required fees;(3) successfully analyze and report proficiency test samples;(4) implement a quality system;(5) document that laboratory personnel meet personnel qualifications of education, training, and experience;(6) allow the executive director entry during normal business hours for an environmental testing laboratory assessment;(7) pass required environmental testing laboratory assessments;(8) submit a report identifying actions the environmental testing laboratory will take to correct the deficiencies identified in the environmental testing laboratory assessment report within 30 days of receiving an assessment report; or(9) implement actions to correct the deficiencies identified in the environmental testing laboratory assessment report within the time approved by the executive director.(b) Cause. After notice and opportunity for hearing, the commission may deny an environmental testing laboratory's initial or renewal application for certification if:(1) laboratory personnel misrepresent any fact pertinent to receiving or maintaining certification;(2) the laboratory or its operator is indebted to the state for a fee, penalty, or tax imposed by a statute within the commission's jurisdiction or a rule adopted under such a statute; or(3) any other reason which causes the executive director to determine that quality of the data being produced by the laboratory's personnel is unreliable or inaccurate, based on the facts of the case.</content><note type="source"><p>Source Note: The provisions of this §25.74 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scC/s25.76"><num value="25.76">§25.76</num><heading>Suspension of Certification</heading><content>(a) After notice and opportunity for hearing according to Chapter 80 of this title (relating to Contested Case Hearings), the commission may suspend an environmental testing laboratory's certification, in whole or in part, for at least 30 days and up to six months. Reasons to suspend an environmental testing laboratory's certification include failing to:(1) maintain a quality system;(2) comply with minimum performance and quality assurance standards;(3) maintain records of the laboratory's personnel, operations, data, or analysis;(4) successfully complete required proficiency tests;(5) employ staff that meet required personnel qualifications for education, training, and experience; or(6) notify the executive director of changes in certification criteria.(b) Certification shall be reinstated if the executive director determines the environmental testing laboratory's personnel have:(1) effectively corrected and taken steps to prevent a recurrence of the deficiencies that led to the suspension of certification;(2) complied with all requirements imposed by the executive director or the commission; and(3) submitted an application for reinstatement which conforms to the standards for certification and this chapter.</content><note type="source"><p>Source Note: The provisions of this §25.76 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c25/scC/s25.78"><num value="25.78">§25.78</num><heading>Revocation of Certification</heading><content>(a) After notice and opportunity for hearing according to Chapter 80 of this title (relating to Contested Case Hearings), the commission may revoke a laboratory's certification, in whole or in part, if the laboratory:(1) fails to correct deficiencies that led to a suspension of certification within six months of the notice of suspension;(2) fails to submit an acceptable report identifying actions the environmental testing laboratory will take to correct deficiencies identified in the environmental testing laboratory assessment;(3) fails to implement actions to correct deficiencies identified during an environmental testing laboratory assessment;(4) fails to complete required proficiency test studies;(5) submits proficiency test sample results generated by another laboratory as its own;(6) misrepresents any fact pertinent to receiving and maintaining certification;(7) fails to allow the executive director entry during normal business hours for an environmental testing laboratory assessment;(8) is convicted of charges relating to the falsification of any report relating to a laboratory analysis;(9) fails to remit fees within the time limit established by the executive director; or(10) is indebted to the state for a fee, penalty, or tax imposed by a statute within the commission's jurisdiction or a rule adopted under such a statute.(b) The commission shall revoke an environmental testing laboratory's certification for each applicable field of certification if, after being suspended due to failure of proficiency test samples, a laboratory fails to successfully analyze the next proficiency test sample.(c) A laboratory whose certification is revoked must wait a minimum of one year before reapplying for certification. The laboratory must meet all requirements for a new certification, including an environmental testing laboratory assessment.</content><note type="source"><p>Source Note: The provisions of this §25.78 adopted to be effective September 12, 2002, 27 TexReg 8480.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c30"><num value="30">CHAPTER 30</num><heading>OCCUPATIONAL LICENSES AND REGISTRATIONS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c30/scA"><num value="A">SUBCHAPTER A</num><heading>ADMINISTRATION OF OCCUPATIONAL LICENSES AND REGISTRATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.1"><num value="30.1">§30.1</num><heading>Authority</heading><content>The provisions in this chapter are issued under the authority of Texas Water Code, Chapter 37.</content><note type="source"><p>Source Note: The provisions of this §30.1 adopted to be effective December 17, 2001, 26 TexReg 10330.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.3"><num value="30.3">§30.3</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this chapter is to consolidate the administrative requirements and establish uniform procedures for the occupational licensing and registration programs prescribed by Texas Water Code, Chapter 37. This subchapter contains general procedures for issuing, renewing, denying, suspending, and revoking occupational licenses and registrations. Subchapters B - L of this chapter (relating to Backflow Prevention Assembly Testers; Customer Service Inspectors; Landscape Irrigators, Irrigation Technicians, and Irrigation Inspectors; Leaking Petroleum Storage Tank Corrective Action Project Managers and Specialists; Municipal Solid Waste Facility Supervisors; On-Site Sewage Facilities Installers, Apprentices, Designated Representatives, Maintenance Providers, Maintenance Technicians, and Site Evaluators; Water Treatment Specialists; Underground Storage Tank On-Site Supervisor Licensing and Contractor Registration; Wastewater Operators and Operations Companies; Public Water System Operators and Operations Companies; and Visible Emissions Evaluator Training and Certification) contain the program-specific requirements related to each program.(b) The requirements of this chapter apply to the following occupational licenses and registrations:(1) backflow prevention assembly testers;(2) customer service inspectors;(3) landscape irrigators, irrigation technicians, and irrigation inspectors;(4) leaking petroleum storage tank corrective action specialists and project managers;(5) municipal solid waste facility supervisors;(6) on-site sewage facility installers, designated representatives, apprentices, maintenance providers, maintenance technicians, and site evaluators;(7) water treatment specialists;(8) underground storage tank contractors and on-site supervisors;(9) wastewater operators and operations companies;(10) public water system operators and operations companies; and(11) visible emissions evaluator training and certification.</content><note type="source"><p>Source Note: The provisions of this §30.3 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective March 1, 2006, 31 TexReg 1301; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective June 26, 2008, 33 TexReg 4886; amended to be effective July 8, 2010, 35 TexReg 5894; amended to be effective September 29, 2016, 41 TexReg 7489.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.5"><num value="30.5">§30.5</num><heading>General Provisions</heading><content>(a) A person must be licensed or registered by the commission before engaging in an activity, occupation, or profession described by Texas Water Code, §§26.0301, 26.345, 26.452, 26.456, Texas Health and Safety Code, §§341.033, 341.034, 361.027, 366.071, 366.0515, or Texas Occupations Code, §1903.251 and §1904.051. The commission shall issue a license or registration only after an applicant has met the minimum requirements for a license or registration as specified in this chapter.(b) A person shall not advertise or represent themselves to the public as a holder of a license or registration unless that person possesses a current license or registration. A person shall not advertise or represent to the public that it can perform services for which a license or registration is required unless it holds a current license or registration, or unless it employs individuals who hold current licenses.(c) The executive director may contract with persons to provide services required by this chapter. The commission may authorize contractors to collect reasonable fees for the services provided.(d) Licenses and registrations are not transferable.(e) New licenses shall not be issued to employees of the commission who have regulatory authority over the rules of this chapter. Commission employees may maintain a license if that license was issued prior to employment with the commission.(f) Prohibited Employment.(1) Individuals subject to registration under the Texas Code of Criminal Procedure, Chapter 62 because of a reportable conviction or adjudication for which an affirmative finding is entered under Texas Code of Criminal Procedure, Article 42.015(b) or Section 5(e)(2), Article 45.12, and licensed after September 1, 2013, may not, for compensation, provide or offer to provide any type of service in the residence of another person unless the provision of service will be supervised.(2) For purposes of this subsection.(A) "Residence" means a structure primarily used as a permanent dwelling and land that is contiguous to that permanent dwelling.(B) "Supervision" means direct, continuous visual observation of the individual at all times.(g) The executive director may issue a digital license or registration in lieu of a paper certificate or pocket card.</content><note type="source"><p>Source Note: The provisions of this §30.5 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective March 1, 2006, 31 TexReg 1301; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective July 10, 2014, 39 TexReg 5181; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.7"><num value="30.7">§30.7</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.(1) Aerobic treatment system owner--Persons that in their individual capacities own a single-family dwelling that is serviced by an on-site sewage disposal system using aerobic treatment.(2) Approved application--An application submitted to the Occupational Licensing Section that contains all the information the executive director has deemed necessary to be accurately processed and that the executive director has determined to be approved.(3) Approved training providers--Entities that have been approved by the executive director to provide training after demonstration of hands-on subject matter expertise, knowledge of and experience with educational principles, and effective instructional designs.(4) Approved training--Training which provides the knowledge and skills necessary to perform occupational job tasks and is used for obtaining or renewing a license or registration, as determined by the executive director.(5) Approved training delivery method--Methods approved by the executive director that currently include in-person, live-online, self-paced, and may include other technologies approved by the executive director. (6) Association--The term association as used in the context of this chapter is an industry-related non-profit association whose members hold licenses or registrations issued by the commission or whose members are required to employ or contract with individuals who hold licenses or registrations issued by the commission.(7) Association meetings--Sessions conducted by an Association that may be delivered in-person, live-online, or a combination of both.(8) Classroom training--Training that is an instructor-led course held in real-time in a classroom environment and may be held in-person, live-online, or a combination of both.(9) Conference--The term conference as used in the context of this chapter includes TCEQ-approved conferences, seminars, workshops, symposiums, expos, and any other such training venues and may be delivered in-person, live-online, or a combination of both and conducted by a governmental entity or their designated agents, associations, or colleges as listed by accrediting agencies that are recognized by the United States Department of Education.(10) Continuing education--Job-related training credit approved by the executive director used for renewal of licenses or registrations.(11) Core training--Courses required to obtain an occupational license or registration that are approved by the executive director.(12) Correspondence training--The term correspondence training as used in the context of this chapter is self-paced training that can either be paper-based and conducted through a postal system, electronic-based, or a blend of these delivery systems.(13) Distributor--Any person or nongovernmental organization that sells a product primarily to individuals maintaining occupational licenses or registrations administered by the agency.(14) High school diploma--An earned high school diploma from a United States high school, an accredited secondary school equivalent to that of United States high school, or a passing score on the general education development (GED) test that indicates a high school graduation level.(15) Home school diploma--An earned diploma from a student who predominately receives instruction in a general elementary or secondary education program that is provided by the parent, or by a person in parental authority, in or through the child's home.(16) In-person training delivery method-- Training that is interactive instructor-led and delivered in real time at the same physical location.(17) License--An occupational license issued by the commission to a person authorizing the person to engage in an activity covered by this chapter.(18) Live-online training delivery method-- Training that is delivered virtually in real time as either instructor-led classroom, conference, or association meeting.(19) Maintenance provider--A person that, for compensation, provides service or maintenance for one or more on-site sewage disposal systems using aerobic treatment.(20) Manufacturer--For the purpose of this subchapter any person, company, or nongovernmental organization that produces a product for sale primarily to individuals who maintain occupational licenses that are administered by the agency.(21) Person--As defined in §3.2 of this title (relating to Definitions).(22) Prerecorded training--Training that has previously been recorded or developed through a virtual or online platform and is not delivered in person nor in real time.(23) Qualified instructor--An individual approved to teach a TCEQ-approved core occupational licensing or registration course who has instructional experience, work-related experience, and subject matter expertise that enables the individual to communicate course information in a relevant, informed manner and to answer students' questions. (24) Qualified presenter--An individual approved to present TCEQ-approved continuing education training who has instructional experience, work-related experience, and subject matter expertise that enables the individual to answer students' questions and to communicate course information in a relevant, informed manner.(25) Registration--An occupational registration issued by the commission to a person authorizing the person to engage in an activity covered by this chapter.(26) Self-paced training delivery method--Training that is delivered using various technologies with a separation of place and time between the instructor or learning resources and the learner. Self-paced training may include correspondence training, prerecorded training, and other technologies approved by the executive director.(27) Service provider--Any person, company, or nongovernmental organization that provides a service for its own profit to individuals who maintain occupational licenses that are administered by the agency.(28) Subject matter expert--A person having a minimum of three years of hands-on work-related experience and expert knowledge in a particular content area or areas as relates to training.(29) Training credit--Hours awarded by the executive director for successful completion of approved training.(30) Training provider--An administrative entity and its designated personnel who are responsible for obtaining approval of training, providing acceptable delivery of approved training, ensuring that qualified instructors or subject matter experts are utilized in the delivery, support, and development of training and monitoring, recording, and reporting attendance accurately and promptly as required by the executive director.</content><note type="source"><p>Source Note: The provisions of this §30.7 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective March 1, 2006, 31 TexReg 1301; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective September 29, 2016, 41 TexReg 7489; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.10"><num value="30.10">§30.10</num><heading>Administration</heading><content>The executive director is responsible for:(1) reviewing applications;(2) developing, administering, and grading examinations;(3) issuing and renewing licenses and registrations;(4) maintaining records related to licenses and registrations;(5) maintaining a roster of current licenses and registrations;(6) collecting fees;(7) approving training providers;(8) awarding training credit for approved training; and(9) responding to complaints against licensees, registrants, and training providers.</content><note type="source"><p>Source Note: The provisions of this §30.10 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective September 29, 2016, 41 TexReg 7489.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.13"><num value="30.13">§30.13</num><heading>Eligibility of Certain Applicants for Occupational Licenses or Registrations</heading><content>(a) An individual may request the agency to issue a criminal history evaluation letter regarding the individual's eligibility for a license if the individual:(1) is enrolled or planning to enroll in an educational program that prepares the individual for an initial license or is planning to take an examination for an initial license; and(2) has reason to believe that the individual is ineligible for the license due to a conviction or deferred adjudication for a felony or misdemeanor offense.(b) The request must state the basis for the individual's potential ineligibility.(c) The executive director has the same powers to investigate a request relating to the requestor's eligibility that it has to investigate a person applying for a license.(d) If the executive director determines that a ground for ineligibility does not exist, the executive director shall notify the requestor in writing of the executive director's determination on each ground of potential ineligibility.(e) If the executive director determines that the requestor is ineligible for a license, the executive director shall issue a letter setting out each basis for potential ineligibility and the executive director's determination as to eligibility. Subject to subsection (g) of this section, the executive director's determination of eligibility is final.(f) The executive director must provide notice under subsection (d) of this section or issue a letter under subsection (e) of this section not later than the 90th day after the date the executive director receives the request.(g) Upon the executive director's discovery of new facts unknown or undisclosed at the time of the determination of eligibility, the executive director may re-evaluate the eligibility of the requestor.</content><note type="source"><p>Source Note: The provisions of this §30.13 adopted to be effective July 8, 2010, 35 TexReg 5894.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.14"><num value="30.14">§30.14</num><heading>Applications for Initial Company Registration</heading><content>(a) Applications for initial company registrations shall be made on a standard form approved by the executive director. The application must be submitted to the executive director with the appropriate fee.(b) Supplemental information for each individual program shall be submitted according to the specific requirements for each program.(c) All statements and qualifications provided by the applicant or on the behalf of the applicant are subject to verification by the executive director.(d) All statements, qualifications, and attachments provided by the applicant relating to an application shall be true, accurate, complete, and contain no misrepresentation or falsification.(e) Misrepresentation or falsification of any information may be grounds for denial of an application and for enforcement action.(f) All applications must be completed in full. All deficiencies must be resolved, and the applicant must notify the executive director that the deficiency has been resolved within 120 days of notification, or the application shall be considered expired.(g) The executive director shall determine whether an applicant meets the requirements of this subchapter. If all requirements have been met, the executive director shall issue the registration. The registration shall be valid for the term specified in Subchapters B - L of this chapter (relating to Backflow Prevention Assembly Testers, Customer Service Inspectors, Landscape Irrigators, Installers, Irrigation Technicians and Irrigation Inspectors, Leaking Petroleum Storage Tank Corrective Action Project Managers and Specialists, Municipal Solid Waste Facility Supervisors, On-Site Sewage Facilities Installers, Apprentices, Designated Representatives, Maintenance Providers, Maintenance Technicians, and Site Evaluators. Water Treatment Specialists, Underground Storage Tank On-Site Supervisor Licensing and Contractor Registration, Wastewater Operators and Operations Companies, Public Water System Operators and Operations Companies, Visible Emissions Evaluator Training and Certification, respectively.) The effective date of the registration shall be the date the executive director issues the registration.</content><note type="source"><p>Source Note: The provisions of this §30.14 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective July 10, 2014, 39 TexReg 5181; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.18"><num value="30.18">§30.18</num><heading>Applications for an Initial License and Individual Registrations</heading><content>(a) Applications for initial licenses and individual registrations shall be made on a standard form provided by the executive director. The application must be submitted to the executive director with the fee according to §30.30 of this title (relating to Terms and Fees for Licenses and Registrations). The application must be submitted to the executive director before the applicant may take the examination, if applicable.(b) Supplemental information for each individual program shall be submitted according to the specific requirements for each program.(c) An approved application shall be valid for one year from the date of application approval.(d) All statements and qualifications provided by each applicant or on the behalf of the applicant are subject to verification by the executive director.(e) All statements, qualifications, and attachments provided by the applicant relating to an application shall be true, accurate, complete, and contain no misrepresentation or falsification.(f) Misrepresentation or falsification of any information may be grounds for denial of an application and for enforcement action.(g) All applications must be completed in full. All deficiencies must be resolved, and the applicant must notify the executive director that the deficiency has been resolved, within 120 days of notification, or the application shall be considered expired.(h) An applicant must furnish evidence of any training credit, proof of education, or work experience when requested. Diplomas from non-accredited high schools will be evaluated by the executive director on a case-by-case basis and will be considered based on the following submitted information:(1) transcript;(2) documentation of actual coursework;(3) time spent on coursework or program; and(4) any additional documentation the executive director might reasonably request or that would assist the applicant in demonstrating the proof of their education claim.(i) The executive director shall determine whether an applicant meets the requirements of this subchapter. If all requirements have been met, the executive director shall issue the license. The license shall be valid for the term specified in Subchapters B - L of this chapter (relating to Backflow Prevention Assembly Testers; Customer Service Inspectors; Landscape Irrigators, Irrigation Technicians, and Irrigation Inspectors; Leaking Petroleum Storage Tank Corrective Action Project Managers and Specialists; Municipal Solid Waste Facility Supervisors; On-Site Sewage Facilities Installers, Apprentices, Designated Representatives, Maintenance Providers, Maintenance Technicians, and Site Evaluators; Water Treatment Specialists; Underground Storage Tank On-Site Supervisor Licensing and Contractor Registration; Wastewater Operators and Operations Companies; Public Water System Operators and Operations Companies; and Visible Emissions Evaluator Training and Certification, respectively.) The effective date of the license shall be the date the executive director issues the license.</content><note type="source"><p>Source Note: The provisions of this §30.18 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective July 10, 2014, 39 TexReg 5181; amended to be effective September 29, 2016, 41 TexReg 7489; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.20"><num value="30.20">§30.20</num><heading>Examinations</heading><content>(a) The executive director shall prescribe the content of licensing examinations. Examinations shall be based on laws, rules, job duties, and standards relating to the particular license. The contents of any examination required for licensure under this chapter are confidential and examinees may not share them with anyone.(b) Examinations shall be graded and the results forwarded to the applicant no later than 45 days after the examination date. The minimum passing score for an examination is 70%.(c) An individual with an approved application who fails an examination may not repeat an examination until receiving notification of examination results for that particular examination.(d) The application expires either after 365 days from date of application or failing the same examination four times, whichever occurs first. If an application expires, a new fee and a new application must be submitted before the applicant may take the same examination again.(e) Any scores for repeat examinations taken after an application expires will not be applied to the issuance of the license.(f) Any qualified applicant with a physical, mental, or developmental disability may request reasonable accommodations to take an examination.(g) Examinations shall be given at places and times approved by the executive director.(h) Examinees must comply with all written and verbal instructions of the proctor and shall not:(1) bring any unauthorized written material, in either printed or electronic formats, into the examination room;(2) bring any electronic devices, including any device with a camera, into the examination room;(3) share, copy, or in any way reproduce any part of the examination;(4) engage in any deceptive or fraudulent act; or(5) solicit, encourage, direct, assist, or aid another person to violate any provision of this section or compromise the confidentiality of the examination.(i) The executive director shall provide an analysis of an examination when requested in writing by the applicant. The executive director shall ensure that an examination analysis does not compromise the fair and impartial administration of future examinations. (j) An individual who wishes to observe a religious holy day on which the individual's religious beliefs prevent the individual from taking an examination scheduled by the agency on that religious holy day shall be allowed to take the examination on an alternate date.(k) The executive director may deny an individual the opportunity to take a licensing examination on the grounds that the individual has been convicted of an offense, other than an offense punishable as a Class C misdemeanor, that:(1) directly relates to the duties and responsibilities of the licensed occupation;(2) is an offense listed in Texas Code of Criminal Procedure, Article 42.12, Section 3g; or(3) is a sexually violent offense, as defined by Texas Code of Criminal Procedure, Article 62.001.(l) The executive director may deny an individual the opportunity to take a licensing examination on the grounds that:(1) the individual was charged with:(A) any offense described by Texas Code of Criminal Procedure, Article 62.001(5); or(B) an offense other than an offense described by subparagraph (A) of this paragraph if:(i) the individual has not completed the period of supervision, or the individual completed the period of supervision less than five years before the date the individual applied for the license; or(ii) a conviction for the offense would make the individual ineligible for the license by operation of law; and(2) after consideration of the factors described by Texas Occupations Code, §§53.021(d), 53.022, and 53.023(a), the executive director determines that:(A) the individual may pose a continued threat to public safety; or(B) employment of the individual in the licensed occupation would create a situation in which the individual has an opportunity to repeat the prohibited conduct.(m) After notice and opportunity for a hearing, the commission may deny or revoke any license or registration held by a person who violates any of the provisions of this section. The commission may file a criminal complaint against any individual who removes or attempts to remove any portion of the examination, reproduces without permission any part of the examination, or who engages in any fraudulent act relating to the examination process.(n) The commission shall follow the notification requirements in §30.36 of this title (relating to Notice) prior to denying an individual the opportunity to take a licensing examination based on the individual's prior conviction of an offense.</content><note type="source"><p>Source Note: The provisions of this §30.20 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective July 8, 2010, 35 TexReg 5894; amended to be effective July 10, 2014, 39 TexReg 5181; amended to be effective September 29, 2016, 41 TexReg 7489; amended to be effective December 9, 2020, 45 TexReg 8775; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.24"><num value="30.24">§30.24</num><heading>License and Registration Applications for Renewal</heading><content>(a) A license or registration may not be renewed if it has been:(1) expired for more than 30 days and an application has not been received by the executive director or postmarked within 30 days after the expiration date of the license or registration;(2) revoked; or(3) replaced by a higher class of license.(b) Applications for renewal must be made on a standard form provided by the executive director.(1) The executive director shall mail a renewal notification at least 60 days before the license or registration expires to the most recent address provided to the executive director. If a person does not receive a renewal notification, the person is not relieved of the responsibility to timely submit a renewal application.(2) The person is responsible for ensuring that the completed renewal application, the renewal fee, and other required information are submitted to the executive director by the expiration date of the license or registration.(c) All statements, qualifications, and attachments provided by the applicant that relate to a renewal application shall be true, accurate, complete, and contain no misrepresentation or falsification. (d) Approved training to renew a license must be successfully completed after the issuance date and before the expiration date of the current license. Any training credits completed in excess of the amount required for the renewal period shall not be carried over to the next renewal period.(e) An individual who holds a license prescribed by Texas Water Code, §26.0301, or Texas Health and Safety Code, §341.033 or §341.034, specifically the holder of a Class A or Class B public water system operator or Class A or B wastewater treatment facility operator license may certify compliance with continuing education requirements prior to or at the time the license is renewed by submitting a continuing education certification form available from the executive director.(f) The executive director may renew a license or registration if the application is received by the executive director or is postmarked within 30 days after the expiration date of the license or registration, and the person meets the requirements for renewal by the expiration date of the license or registration and pays all appropriate fees. This subsection does not extend the validity period of the license or registration nor grant the person authorization to perform duties requiring a license or registration. This subsection only allows an additional 30 days after the expiration of the license or registration for the person to submit the renewal application, any supporting documentation, and appropriate fees.(g) An individual whose license renewal application is not received by the executive director or is not postmarked within 30 days after the license expiration date may not renew the license and must meet the current education, training, and experience requirements, submit a new application with the appropriate fee, and pass the examination. A person whose registration renewal application is not received by the executive director or is not postmarked within 30 days after the expiration date may not renew the registration and must submit a new application with the appropriate fee and meet all applicable requirements for a new registration.(h) Persons failing to renew their license or registration in a timely manner due to serving as a military service member may renew their license within two years of returning from active duty by submitting the following:(1) a completed renewal application;(2) a copy of the military orders substantiating the military service during the time the license expired; and(3) the applicable license renewal fee.(i) For good cause the executive director may extend the two years period for a military service member seeking to renew their license. Good cause may include, but is not limited to, hospitalization or injury to the licensee.(j) Completion of the required continuing education will be waived for the renewal cycle for military service members outside of this state who were unable to complete the requirements.(k) These procedures apply only to military service members who are outside this state and not to military contractors.(l) All licensees must notify the executive director of any change in the previously submitted application information within ten days from the date the change occurs.(m) All registration holders must notify the executive director of any change in the previously submitted application information within ten days after the month in which the change occurs.(n) Licenses and registrations that have renewal cycles in transition shall follow the renewal requirements in the applicable subchapter.(o) The executive director shall determine whether an applicant meets the renewal requirements of this subchapter. If all requirements have been met, the executive director shall renew the license or registration.(p) The license or registration shall be valid for the term specified.(q) If the application does not meet the requirements, the executive director shall notify the applicant in writing of the deficiencies.(r) All deficiencies must be resolved, and the applicant must notify the executive director that the deficiency has been resolved within 30 days of date printed on the notification, or the renewal application shall be considered expired after the license expiration date.(s) A person whose license or registration has expired shall not engage in activities that require a license or registration until the license or registration is renewed or a new license or registration has been obtained.(t) The commission shall follow the notification requirements in §30.36 of this title (relating to Notice) prior to denying an individual the opportunity to renew a license based on the individual's prior conviction of an offense.</content><note type="source"><p>Source Note: The provisions of this §30.24 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective August 30, 2012, 37 TexReg 6607; amended to be effective July 10, 2014, 39 TexReg 5181; amended to be effective September 29, 2016, 41 TexReg 7489; amended to be effective December 9, 2020, 45 TexReg 8775; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.26"><num value="30.26">§30.26</num><heading>Recognition of Licenses from Out-of-State; Licenses for Military Service Members, Military Veterans, or Military Spouses</heading><content>(a) Except for landscape irrigators the executive director may waive qualifications, training, or examination for individuals with a good compliance history who hold a current license from another state, territory, or country if that state, territory, or country has requirements equivalent to those in this chapter.(b) A license may be issued after review and approval of the application, receipt of the appropriate fee, and verification of the license from the corresponding state, territory, or country.(c) The executive director may waive any of the prerequisites for obtaining a landscape irrigator license, if the applicant is licensed as an irrigator in another jurisdiction that has a reciprocity agreement with the State of Texas.(d) The executive director may require the applicant to provide information about other occupational licenses and registrations held by the person, including:(1) the state in which the other license or registration was issued;(2) the current status of the other license or registration; and(3) whether the other license or registration was ever denied, suspended, revoked, surrendered, or withdrawn.(e) To maintain a license that was issued on the basis of reciprocity, applicants must comply with the renewal requirements of this subchapter. Reciprocity will not be granted for the issuance of lower level licenses of the same type as the one that was initially issued on the basis of reciprocity.(f) Military Service Members, Military Veterans, or Military Spouses.(1) The executive director shall issue a license to an applicant who is a military service member, military veteran, or military spouse and:(A) holds a current license issued by another jurisdiction that has licensing requirements that are substantially equivalent to the requirements for the license; or(B) within the five years preceding the application date held the license in this state.(2) A license issued under this subsection shall be valid for the term specified in §30.18(i) of this title (relating to Applications for an Initial License).(3) The executive director shall notify the license holder of the requirements for renewing a license issued under this subsection as specified in §30.24(b)(1) of this title (relating to License and Registration Applications for Renewal).(4) The executive director shall issue a license to an individual who meets the requirements in §30.26(f)(1) within 30 days of receipt of application unless the applicant is deficient.(g) In lieu of the standard method(s) of demonstrating competency for a particular license, and based on the applicant's circumstances, the alternative methods for demonstrating competency may include, but not be limited to, any combination of the following as determined by the executive director:(1) education;(2) continuing education;(3) examinations (written, practical, or a combination of written and practical);(4) letters of good standing;(5) letters of recommendation;(6) work experience; or(7) other methods or options as determined by the executive director.(h) Military service members or military veterans. The executive director shall credit verified military service, training, or education toward the licensing requirements.(1) Verified military service, training, or education shall not be credited toward an examination requirement.(2) The executive director may not apply this credit provision to an applicant who:(A) holds a restricted license issued by another jurisdiction; or(B) has an unacceptable criminal history.</content><note type="source"><p>Source Note: The provisions of this §30.26 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective August 30, 2012, 37 TexReg 6607; amended to be effective July 10, 2014, 39 TexReg 5181; amended to be effective September 29, 2016, 41 TexReg 7489; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.28"><num value="30.28">§30.28</num><heading>Approval of Training</heading><content>(a) The executive director shall approve training that provides the knowledge or skills necessary to obtain or maintain licenses or registrations that are issued by the commission. This training shall be directly related to tasks performed by persons whose duties require a license or registration in a program that is administered by the commission.(b) The executive director may approve specific training events, to include:(1) classroom training;(2) conferences;(3) prerecorded training; (4) correspondence training;(5) association meetings that include training sessions containing subject matter related to the particular license; or(6) other professional activities, such as the publication of articles.(c) The executive director may approve specific training delivery methods to include:(1) in-person;(2) live-online; or(3) self-paced training.(d) The executive director shall award training credit for successful completion of approved training used for obtaining or renewing a license.(e) The executive director shall determine the occupational program(s) and number of hours of training credit that will be granted for approved training. The executive director may:(1) use the provider's subject matter experts' qualifications to determine the program(s); and(2) request field testing data from training providers to validate the hours requested.(f) Training providers who submit applications for approval must:(1) utilize a standard form and method provided by the executive director;(2) include the applicable fee found in the chart contained in subsection (g) of this section;(3) include supplemental information and materials according to the specific requirements for each method of training as approved by the executive director;(4) include supplemental materials and information edited by subject matter experts;(5) include samples of certificates of completion, including information as required by the executive director;(6) document approval from the publisher to reprint text, pictures, graphics, tables, data, and any other information that is copyrighted or obtained from a source that is not an original creation of the training provider. The training materials submitted shall include appropriate references; and(7) resolve any deficiencies and notify the executive director when deficiencies have been resolved, within 60 days of the notification provided by the executive director or the application will become void and the fee forfeited.(g) The executive director shall determine whether a provider meets the requirements of this subchapter.(h) Fees for training applications will be calculated based on the number of requested training credit hours, number of core courses for instructor qualifications, or type of association meetings using the following table. If the requested hours are significantly different than the actual hours of training awarded, the executive director may request an adjustment in the fee from the applicant. If the applicant does not provide the adjusted fee, the application will not be processed, resulting in denial of training approval. Fees are nonrefundable whether the training is approved or not approved.Attached Graphic(i) Training delivered to meet the requirements for obtaining or renewing a license must:(1) be approved by the executive director before the training begins;(2) provide the knowledge or skills necessary to perform one or more of the occupation's critical job tasks as determined by a job analysis or training needs assessment;(3) not promote or endorse the products, product lines, or services of a manufacturer, distributor, or service provider or used as an opportunity for advertisement;(4) provide the means to accomplish the learning objectives identified for the training;(5) contain learning aids, such as visual aids and graphics. Training must be interactive in order to enhance learning and attain learning objectives;(6) include regular monitoring of student comprehension throughout the training and provide feedback from the training provider, instructor, or subject matter expert to the student;(7) verify student's identity;(8) be monitored for successful student completion;(9) track student time and progress toward completing learning objectives; and(10) utilize, at a minimum, subject matter experts and instructional design experts or effective qualified instructors to develop training materials for approval. Additionally, development of self-paced training must also utilize qualified subject matter experts in self-paced delivery methods.(j) Training shall not be advertised as approved until notice of approval is received from the executive director.(k) Training may not be held in a place of business of a product manufacturer, distributor, or service provider directly related to the occupational license for which the training provider seeks approval.(l) Once training is approved, training providers may offer the training without notification to the executive director.(m) Training is considered approved until the content changes, or until the executive director notifies the training provider that changes in the content or delivery of the training are required.(n) If a training provider changes the delivery method of the training, the training must be submitted for review and approval by the executive director.(o) The executive director may:(1) deny applications for training courses that contain extensive errors or do not meet the requirements of this section;(2) conduct an administrative review for application completeness and a technical review for compliance with applicable agency rules;(3) monitor, recall, reevaluate, and/or rescind approval of topics or training materials;(4) require training providers to update training delivery methods or training materials to ensure that the content reflects current technology and practices;(5) deny an application after determination that another delivery method is more conducive for the training material; and(6) recall training for reevaluation which may result in rescinding any previous approval.(p) The executive director's grounds for recalling, rescinding, suspending, or denying approval include, but are not limited to:(1) the training does not conform to current accepted industry standard practices or agency rules;(2) the training does not conform to the materials or method as approved;(3) the subject matter is not related to critical job tasks performed by licensees;(4) an instructor is not qualified to teach the subject matter;(5) an instructor is ineffective in the delivery of the subject matter;(6) the training promotes or endorses products, product lines, or services from a manufacturer, distributor, or service provider; (7) the training credits for successfully completed training are not electronically submitted within 14 business days of course completion;(8) the records, rosters, or application materials have been falsified;(9) the training provider does not comply with a training recall;(10) the training provider is not active or training has not been conducted for three or more years; or(11) the training environment is not conducive to learning. (q) The following types of training will not be approved or awarded training credit:(1) self-paced training that is repeated during the renewal period; or(2) self-paced and live-online training that is intended to teach required manual skills. (r) Approved training providers shall:(1) ensure the executive director has the most current electronic edition of training materials;(2) keep manuals and training content updated to reflect rule changes;(3) submit approved training material that references rules for reapproval within 180 days of any new rule adoption that pertains to that training;(4) submit material with substantial changes, including a summary, list, or other indication of changes, for review and reapproval by the executive director;(5) allow the executive director staff or their agents access to training in order to audit training content, manner of delivery, and the effectiveness and qualifications of instructors and subject matter experts;(6) be responsible for the content and delivery of the training;(7) retain accurate training records for a minimum of five years;(8) maintain records of training approval throughout the entire period the training provider actively delivers training;(9) ensure that instructors and subject matter experts are qualified and provide the executive director with qualifications when requested;(10) notify students of all fees associated with completing the training and obtaining credit for training before and during the training;(11) accurately present to students the approved training credit along with any other criteria for obtaining full or partial training credit;(12) provide students with approved copies of texts, manuals, or other training materials to use during the training and for future reference required by the delivery method and as approved by the executive director;(13) verify participation;(14) provide acceptable procedures for student identity verification;(15) maintain procedures to protect student identity and personal information;(16) provide students access to subject matter experts to answer technology-related and content-related questions within one business day from the time of request; and(17) electronically report the students' successfully completed training credit hours per procedures provided and approved by the executive director, not to exceed approved training credit hours, within 14 business days of training completion.(s) Printed training material must be presented in an original manner and must be relevant to the critical job tasks and knowledge for the occupational licensees.(t) Public information copied from websites or other sources is not acceptable as training materials unless modified to be applicable to the target audience and the method of delivery.</content><note type="source"><p>Source Note: The provisions of this §30.28 adopted to be effective September 29, 2016, 41 TexReg 7489; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.29"><num value="30.29">§30.29</num><heading>Notification Requirements for Training Providers of Initial Training</heading><content>(a) Definitions. The following terms, when used in this section, shall have the following meaning:(1) Initial training--Training, required by rule, to obtain an initial occupational license identified in Subchapters B - L of this chapter (relating to Backflow Prevention Assembly Testers; Customer Service Inspectors; Landscape Irrigators, Irrigation Technicians and Irrigation Inspectors; Leaking Petroleum Storage Tank Corrective Action Project Managers and Specialists; Municipal Solid Waste Facility Supervisors; On-Site Sewage Facilities Installers, Apprentices, Designated Representatives, Maintenance Providers, Maintenance Technicians, and Site Evaluators; Water Treatment Specialists; Underground Storage Tank On-Site Supervisor Licensing and Contractor Registration; Wastewater Operators and Operations Companies; Public Water System Operators and Operations Companies; Visible Emissions Evaluator Training and Certification).(2) Student--An individual who is enrolled in an educational or instructional program that prepares the individual for an initial occupational license.(3) Training provider--An administrative entity or individual that provides initial training.(b) A training provider shall notify its students of:(1) the potential ineligibility of an individual who has been convicted of an offense for issuance of an occupational license by the executive director upon completion by the individual of the initial training;(2) the current guidelines adopted by the executive director;(3) the circumstances described in §30.33 of this title (relating to License or Registration Denial, Warning, Suspension, or Revocation) under which the executive director may consider an individual to have been convicted of an offense, regardless of whether the proceedings were dismissed and the individual was discharged, for the purpose of denying, suspending, or revoking the license; and(4) the right of an individual to request a criminal history evaluation letter from the agency under Texas Occupations Code, §53.102 as described in §30.13 of this title (relating to Eligibility of Certain Applicants for Occupational Licenses or Registrations).(c) A training provider shall require each student to sign an acknowledgement that the training provider notified the student of the information described in subsection (b) of this section. This acknowledgement may be provided in an electronic form.(d) A training provider shall retain records of the signed acknowledgment described in subsection (c) of this section for at least five years after the student confirms receipt of the information described in subsection (b) of this section.(e) If the student's application for an initial occupational license is denied due to the student's criminal conviction history, and the training provider failed to provide the student the information described in subsection (b) of this section, the student may request that the commission order the training provider to:(1) refund the student the amount of tuition paid to the training provider; and(2) pay the student an amount equal to the total of:(A) the amount of any application fees paid by the student to the agency for the occupational license which the student was denied due to the student's conviction criminal history; and(B) the amount of any examination fees paid by the student to the agency or an examination provider approved by the executive director for the occupational license which the student was denied due to the student's criminal conviction history.(f) To be eligible for reimbursement pursuant to subsection (e) of this section, the student must submit a written request for recovery of costs to the Office of the Chief Clerk, Texas Commission on Environmental Quality, Mail Code, 105, P.O. Box 13087, Austin, Texas 78711-3087 and the training provider within:(1) 60 days after the date the executive director mails the final notice of denial of the student's application for an initial occupational license; or(2) if the final decision is contested, within 30 days of the final commission decision to deny the license, whichever is later.(g) A student seeking reimbursement pursuant to subsection (e) of this section must provide documentation of the amount of tuition, application fees, and examination fees that were incurred by the student.(h) A training provider may file a response to a student's request for reimbursement with the chief clerk within 30 days after the delivery of the student's written request for reimbursement.(i) After the deadline for the training provider to file a response to a student's request, the commission may consider the student's request at a commission meeting.(j) The chief clerk shall mail notice to the student, training provider, executive director, and public interest counsel at least 30 days before the first meeting at which the commission considers the student's request for reimbursement.</content><note type="source"><p>Source Note: The provisions of this §30.29 adopted to be effective December 9, 2020, 45 TexReg 8775.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.30"><num value="30.30">§30.30</num><heading>Terms and Fees for Licenses and Registrations</heading><content>(a) Licenses and registrations are valid for three years from the date of issuance, unless specified otherwise by Subchapters B - L of this chapter (relating to Backflow Prevention Assembly Testers; Customer Service Inspectors; Landscape Irrigators, Irrigation Technicians, and Irrigation Inspectors; Leaking Petroleum Storage Tank Corrective Action Project Managers and Specialists; Municipal Solid Waste Facility Supervisors; On-Site Sewage Facilities Installers, Apprentices, Designated Representatives, Maintenance Providers, Maintenance Technicians, and Site Evaluators; Water Treatment Specialists; Underground Storage Tank On-Site Supervisor Licensing and Contractor Registration; Wastewater Operators and Operations Companies; Public Water System Operators and Operations Companies; and Visible Emissions Evaluator Training and Certification, respectively).(b) The executive director may adopt a system under which licenses or registrations expire on various dates.(c) The license fee is $111 for a three-year license. The total amount shall be paid with each initial and renewal application and is nonrefundable. The initial fee is waived for military service member, military veteran, or military spouse applicants if they:(1) meet all other requirements for the license; or(2) hold a current license issued by another jurisdiction that has licensing requirements that are substantially equivalent to the requirements for the license the applicant is applying for in this state.(d) Registration fees are established in the applicable subchapters of this chapter.(e) The executive director may charge a $20 fee to process a duplicate certificate or pocket card.(f) A convenience fee may be set by the executive director or service provider for alternative fee payment methods. A person using an alternative payment method is responsible for paying the convenience fee.(g) An examination or reexamination fee may be charged if the executive director designates an entity to administer the examinations.(h) The executive director may charge an individual requesting a criminal history evaluation letter under §30.13 of this title (relating to Eligibility of Certain Applicants for Occupational Licenses or Registrations) a fee adopted by the commission. Fees adopted by the commission under §30.13 of this title must be in an amount sufficient to cover the cost of administering §30.13 of this title.</content><note type="source"><p>Source Note: The provisions of this §30.30 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective July 8, 2010, 35 TexReg 5894; amended to be effective July 10, 2014, 39 TexReg 5181; amended to be effective September 29, 2016, 41 TexReg 7489.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.33"><num value="30.33">§30.33</num><heading>License or Registration Denial, Warning, Suspension, or Revocation</heading><content>(a) The executive director may deny an initial or renewal application for the following reasons.(1) Insufficiency. The executive director shall notify the applicant of the executive director's intent to deny the application and advise the applicant of the opportunity to file a motion to overturn the executive director's decision under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision). The executive director may determine that an application is insufficient for the following reasons:(A) failing to meet the licensing or registration requirements of this chapter; or(B) if an out-of-state licensing program does not have requirements substantially equivalent to those of this chapter.(2) Cause. After notice and opportunity for a hearing, the commission may deny an application for a license or registration by an applicant who:(A) provides fraudulent information or falsifies the application;(B) has engaged in fraud or deceit in obtaining or applying for a license or registration;(C) has demonstrated gross negligence, incompetence, or misconduct in the performance of activities authorized by a license or registration;(D) made an intentional misstatement or misrepresentation of fact or information required to be maintained or submitted to the commission by the applicant or by the license or registration holder;(E) failed to keep and transmit records as required by a statute within the commission's jurisdiction or a rule adopted under such a statute; or(F) at the time the application is submitted, is indebted to the state for a fee, penalty, or tax imposed by a statute within the commission's jurisdiction or a rule adopted under such a statute.(b) If an individual causes, contributes to, or allows a violation of this chapter, the executive director may issue a warning letter. The letter shall be placed in the individual's permanent file maintained by the executive director. This letter shall be a warning that further violations or offenses by the individual may be grounds for suspension, revocation, enforcement action, or some combination. A warning is not a prerequisite for initiation of suspension, revocation, or enforcement proceedings.(c) After notice and hearing, the commission may suspend or revoke a license, certificate, or registration on any of the grounds contained in Texas Water Code, §7.303(b).(d) After notice and hearing a license or registration may be suspended for a period of up to one year, depending upon the seriousness of the violations. A license or registration shall be revoked after notice and hearing upon a second suspension.(e) The commission may revoke a license or registration after notice and hearing for a designated term or permanently. If a license or registration is revoked a second time, the revocation shall be permanent.(f) The following procedures for renewal apply to individuals that have had their license or registration suspended.(1) If a license or registration expiration date falls within the suspension period, an individual may renew the license or registration during the suspension period according to §30.24 of this title (relating to License and Registration Applications for Renewal) and the applicable subchapters of this chapter.(2) A license or registration suspended in accordance with subsection (j) of this section may not be renewed during the suspension period. The license or registration may only be renewed if the court or the Title IV-D agency renders an order vacating or staying an order suspending the license or registration and the license or registration has not expired during the suspension period.(3) After the suspension period has ended, the license or registration shall be automatically reinstated unless the individual failed to renew the license or registration during the suspension period.(g) Individuals that have had their license or registration revoked shall not have their license or registration reinstated after the revocation period. After the revocation period has ended, an individual may apply for a new license or registration according to this chapter.(h) Criminal Conviction.(1) After notice and hearing, the commission may deny, suspend, or revoke a license on the grounds that the individual has been convicted of an offense, other than a Class C misdemeanor that:(A) directly relates to the duties and responsibilities of the licensed occupation;(B) is listed in Texas Code of Criminal Procedure, Article 42.12, Section 3g; or(C) is a sexually violent offense, as defined by Texas Code of Criminal Procedure, Article 62.001.(2) The commission shall revoke the license or registration upon an individual's imprisonment following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision.(3) Prohibited Employment.(A) Individuals subject to registration under the Texas Code of Criminal Procedure, Chapter 62 because of a reportable conviction or adjudication for which an affirmative finding is entered under Texas Code of Criminal Procedure, Article 42.015(b) or Section 5(e)(2), Article 45.12, and licensed after September 1, 2013, may not, for compensation, provide or offer to provide any type of service in the residence of another person unless the provision of service will be supervised.(B) For purposes of this subsection:(i) "Residence" means a structure primarily used as a permanent dwelling and land that is contiguous to that permanent dwelling.(ii) "Supervision" means direct, continuous visual observation of the individual at all times.(4) Except as provided by paragraph (5) of this subsection, notwithstanding any other law, the executive director may not consider an individual to have been convicted of an offense for purposes of this section if, regardless of the statutory authorization:(A) the individual entered a plea of guilty or nolo contendere;(B) the judge deferred further proceedings without entering an adjudication of guilt and placed the individual under the supervision of the court or an officer under the supervision of the court; and(C) at the end of the period of supervision, the judge dismissed the proceedings and discharged the individual.(5) The executive director may consider an individual to have been convicted of an offense for purposes of this section regardless of whether the proceedings were dismissed and the individual was discharged as described by paragraph (4) of this subsection if:(A) the individual was charged with:(i) any offense described by Texas Code of Criminal Procedure, Article 62.001(5); or(ii) an offense other than an offense described by clause (i) of this subparagraph if:(I) the individual has not completed the period of supervision or the individual completed the period of supervision less than five years before the date the individual applied for the license; or(II) a conviction for the offense would make the individual ineligible for the license by operation of law; and(B) after consideration of the factors described by Texas Occupations Code, §53.022 and §53.023(a), the executive director determines that:(i) the individual may pose a continued threat to public safety; or(ii) employment of the individual in the licensed occupation would create a situation in which the individual has an opportunity to repeat the prohibited conduct.(i) After notice and hearing, the commission may revoke a maintenance provider registration on any of the grounds in Texas Health and Safety Code, §366.0515(m).(j) Failure to pay child support.(1) The commission may suspend a license or registration if a licensed or registered individual has been identified by the Office of the Attorney General as being delinquent on child support payments (upon receipt of a final order suspending a license or registration, the executive director shall proceed as described in Texas Family Code, Chapter 232).(2) The commission shall refuse to accept an application for:(A) issuance of a new license or registration to an individual; or(B) renewal of an existing license or registration to an individual if:(i) the individual has failed to pay child support for six months or more;(ii) the commission is notified by a child support agency, as defined by Texas Family Code, §101.004; and(iii) the child support agency requests the commission to refuse to accept the application.(3) The commission shall not accept an application for a license that was refused under paragraph (2) of this subsection until notified by the child support agency that the individual has:(A) paid all child support arrearages;(B) made an immediate payment of not less than $200 toward child support arrearages owed and established with the child support agency a satisfactory repayment schedule for the remainder or is in compliance with a court order for payment of the arrearages;(C) been granted an exemption from this subsection as part of a court-supervised plan to improve the individual's earnings and child support payments; or(D) successfully contested the child support agency's request for the commission's denial of issuance or renewal of the license or registration.(4) The commission may charge a fee in an amount sufficient to recover the administrative costs incurred for denying or suspending that license.(5) For purposes of this subsection, the suspension period for a license or registration shall be until:(A) the court or the Title IV-D agency renders an order vacating or staying an order suspending the license or registration; or(B) the expiration of the license or registration.(k) The commission shall follow the notification requirements in §30.36 of this title (relating to Notice) prior to the denial of an initial license, the revocation of a license, or renewal of a license based on the individual's prior conviction of an offense.</content><note type="source"><p>Source Note: The provisions of this §30.33 adopted to be effective July 10, 2014, 39 TexReg 5181; amended to be effective December 9, 2020, 45 TexReg 8775.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.34"><num value="30.34">§30.34</num><heading>Factors in Determining Whether a Conviction Directly Relates to the Licensed Occupation</heading><content>(a) In determining whether a criminal conviction directly relates to the duties and responsibilities of a licensed occupation, the commission shall consider each of the following factors:(1) the nature and seriousness of the crime;(2) the relationship of the crime to the purposes for requiring a license to engage in the occupation;(3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the individual previously had been involved;(4) the relationship of the crime to the ability, or capacity required to perform the duties and discharge the responsibilities of the licensed occupation; and(5) any correlation between the elements of the crime and the duties and responsibilities of the licensed occupation.(b) If the commission determines under subsection (a) of this section, that a criminal conviction directly relates to the duties and responsibilities of a licensed occupation, the executive director shall consider, in addition to the factors listed in subsection (a) of this section:(1) the extent and nature of the individual's past criminal activity;(2) the age of the individual when the crime was committed;(3) the amount of time that has elapsed since the individual's last criminal activity;(4) the conduct and work activity of the individual before and after the criminal activity;(5) evidence of the individual's rehabilitation or rehabilitative effort while incarcerated or after release;(6) evidence of the person's compliance with any conditions of community supervision, parole, or mandatory supervision; and(7) other evidence of the individual's ability to perform the duties and responsibilities of the occupation, including letters of recommendation.(c) The applicant has the responsibility, to the extent possible, to obtain and provide to the executive director the documentation described by subsection (b)(7) of this section.(d) In determining whether a criminal conviction directly relates to the licensed occupation, the commission may not consider an arrest that did not result in the person's conviction or placement on deferred adjudication community supervision.</content><note type="source"><p>Source Note: The provisions of this §30.34 adopted to be effective July 8, 2010, 35 TexReg 5894; amended to be effective December 9, 2020, 45 TexReg 8775.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.35"><num value="30.35">§30.35</num><heading>Guidelines</heading><content>(a) The agency shall issue guidelines relating to the practice of the agency in determining whether a particular crime is considered to relate to a particular license and any other criterion that affects the decisions of the commission. (b) The agency shall file the guidelines with the secretary of state for publication in the Texas Register.</content><note type="source"><p>Source Note: The provisions of this §30.35 adopted to be effective July 8, 2010, 35 TexReg 5894.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.36"><num value="30.36">§30.36</num><heading>Notice</heading><content>(a) The executive director shall notify the individual in writing of the intent to suspend or revoke a license or deny the individual a license or the opportunity to be examined for a license (notice of intent) because of the individual's prior conviction of an offense. The notice of intent shall:(1) include the reason for the suspension, revocation, denial, or disqualification, including any factor considered under §30.34 of this title (relating to Factors in Determining Whether a Conviction Directly Relates to the Licensed Occupation) that served as the basis for the suspension, revocation, denial, or disqualification;(2) notify the individual that it is the individual's responsibility to obtain and provide to the licensing authority evidence regarding the factors listed in §30.34(b) of this title;(3) allow the individual 30 days to submit any relevant information to the licensing authority for further consideration.(b) The executive director shall notify the individual in writing of the final decision to suspend or revoke a license or deny the individual a license or the opportunity to be examined for the license (final notice) because of the individual's prior conviction of the offense(s) specified in the notice of intent. The final notice shall:(1) include the reason for the suspension, revocation, denial, or disqualification, including any factor considered under §30.34 of this title that served as the basis for the suspension, revocation, denial, or disqualification;(2) notify the individual of the review procedure provided by §30.35 of this title (relating to Guidelines); and(3) include the deadline by which the individual may appeal the action of the commission.</content><note type="source"><p>Source Note: The provisions of this §30.36 adopted to be effective July 8, 2010, 35 TexReg 5894; amended to be effective July 10, 2014, 39 TexReg 5181; amended to be effective December 9, 2020, 45 TexReg 8775.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.37"><num value="30.37">§30.37</num><heading>Judicial Review</heading><content>(a) An individual whose license has been suspended or revoked or who has been denied a license or the opportunity to take an examination under §30.20(m) and §30.33(a)(2)(H) or (d) of this title (relating to Examinations; or License or Registration Denial, Warning, Suspension, or Revocation) and who has exhausted the individual's administrative appeals may file an action in the district court in Travis County, Texas for review of the evidence presented to the commission and the decision of the commission.(b) The petition for an action under subsection (a) of this section must be filed not later than the 30th day after the date the commission's decision is final and appealable.</content><note type="source"><p>Source Note: The provisions of this §30.37 adopted to be effective July 8, 2010, 35 TexReg 5894.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scA/s30.38"><num value="30.38">§30.38</num><heading>Hearings</heading><content>All hearings are to be conducted according to Chapters 70 and 80 of this title (relating to Enforcement and Contested Case Hearings, respectively).</content><note type="source"><p>Source Note: The provisions of this §30.38 adopted to be effective July 8, 2010, 35 TexReg 5894.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c30/scB"><num value="B">SUBCHAPTER B</num><heading>BACKFLOW PREVENTION ASSEMBLY TESTERS</heading><section identifier="/us/state/tx/tac/t30/p1/c30/scB/s30.51"><num value="30.51">§30.51</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to establish qualifications for issuing and renewing licenses to an individual who tests and repairs backflow prevention assemblies.(b) An individual who tests and repairs backflow prevention assemblies must meet the qualifications of this subchapter and be licensed according to Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations).</content><note type="source"><p>Source Note: The provisions of this §30.51 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scB/s30.57"><num value="30.57">§30.57</num><heading>Definitions</heading><content>The following word and term, when used in this subchapter, shall have the following meaning, unless the context clearly indicates otherwise. Backflow prevention assembly tester (BPAT)--An individual who tests and repairs backflow prevention assemblies.</content><note type="source"><p>Source Note: The provisions of this §30.57 adopted to be effective December 17, 2001, 26 TexReg 10330.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scB/s30.60"><num value="30.60">§30.60</num><heading>Qualifications for Initial License</heading><content>To obtain a license, an individual must have:(1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations);(2) passed an examination;(3) received a high school diploma or equivalent certificate;(4) completed an approved 40-hour backflow prevention assembly testing training course; and(5) worked at least two years in an approved area which includes, but is not limited to:(A) operating or maintaining a public drinking water system;(B) installing or repairing residential, commercial, or industrial drinking water treatment equipment;(C) installing or repairing lawn irrigation systems;(D) performing activities requiring a master or journeyman plumbing license;(E) installing or servicing fire suppression sprinkler systems and lines;(F) operating or maintaining a domestic wastewater treatment facility;(G) performing health inspections that requires a registered sanitarian; or(H) performing other duties approved by the executive director.(6) An individual may substitute one year of the required experience with:(A) one year of college credit (32 semester hours); or(B) 20 hours of approved training in addition to the required 40-hour backflow prevention assembly testing training course.</content><note type="source"><p>Source Note: The provisions of this §30.60 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scB/s30.62"><num value="30.62">§30.62</num><heading>Qualifications for License Renewal</heading><content>To renew a license, an individual must have:(1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations); and(2) completed 24 hours of approved continuing education which includes eight hours of approved practical skills training.</content><note type="source"><p>Source Note: The provisions of this §30.62 adopted to be effective December 17, 2001, 26 TexReg 10330.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c30/scC"><num value="C">SUBCHAPTER C</num><heading>CUSTOMER SERVICE INSPECTORS</heading><section identifier="/us/state/tx/tac/t30/p1/c30/scC/s30.81"><num value="30.81">§30.81</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to establish qualifications for issuing and renewing licenses to individuals who conduct and certify customer service inspections.(b) An individual who performs customer service inspections must meet the qualifications of this subchapter and be licensed according to Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations).(c) An endorsement for customer service inspections shall expire when an individual renews a water operators license or the license expires. To obtain a customer service inspector license, an individual holding an endorsement must submit a new application with the appropriate fee.(d) A licensed customer service inspector shall not perform plumbing inspections required under Texas Occupations Code, Chapter 1301.</content><note type="source"><p>Source Note: The provisions of this §30.81 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective September 29, 2016, 41 TexReg 7489; amended to be effective December 9, 2020, 45 TexReg 8775.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scC/s30.87"><num value="30.87">§30.87</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Cross-connection--A physical connection between a public water system and either another supply of unknown or questionable quality, any source which may contain contaminating or polluting substances, or any source of water treated to a lesser degree in the treatment process.(2) Customer service inspection--An examination of the private water distribution facility for the purpose of providing or denying water service. The inspection is limited to the identification and prevention of cross-connections, potential contaminant hazards, and illegal lead materials. Customer service inspections are completed before providing continuous water service to new construction, on any existing service where there is reason to believe that cross-connections or other potential contaminant hazards exist, or after any material improvement, correction, or addition to private water distribution facilities (see §290.46(j) of this title (relating to Minimum Acceptable Operating Practices for Public Drinking Water Systems)).(3) Customer service inspector--The person who is licensed by the executive director to perform customer service inspections.</content><note type="source"><p>Source Note: The provisions of this §30.87 adopted to be effective December 17, 2001, 26 TexReg 10330.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scC/s30.90"><num value="30.90">§30.90</num><heading>Qualifications for Initial License</heading><content>(a) To obtain a license, an individual must have:(1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations);(2) received a high school diploma or equivalent certificate;(3) completed an approved customer service inspector training course;(4) worked at least two years in an approved area which includes, but is not limited to:(A) operation or maintenance of a public drinking water treatment or distribution system;(B) performing activities requiring a master or journeyman plumbing license;(C) conducting building or construction inspections; or(D) performing duties related to this profession approved by the executive director.(b) One year of college (32 semester hours) or an additional 20 hours of training credits may be substituted for one year of the experience requirement.</content><note type="source"><p>Source Note: The provisions of this §30.90 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scC/s30.92"><num value="30.92">§30.92</num><heading>Qualifications for License Renewal</heading><content>To renew a license, an individual must have:(1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations); and(2) completed 16 hours of approved continuing education.</content><note type="source"><p>Source Note: The provisions of this §30.92 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scC/s30.95"><num value="30.95">§30.95</num><heading>Exemptions</heading><content>Plumbing inspectors and water supply protection specialists licensed by a plumbing licensing authority in the state of Texas are exempt from these requirements.</content><note type="source"><p>Source Note: The provisions of this §30.95 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective December 9, 2020, 45 TexReg 8775.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c30/scD"><num value="D">SUBCHAPTER D</num><heading>LANDSCAPE IRRIGATORS, IRRIGATION TECHNICIANS AND IRRIGATION INSPECTORS</heading><section identifier="/us/state/tx/tac/t30/p1/c30/scD/s30.111"><num value="30.111">§30.111</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to establish qualifications for issuing and renewing licenses to individuals who:(1) sell, design, install, maintain, alter, repair, or service an irrigation system;(2) provide consulting services relating to an irrigation system;(3) connect an irrigation system to any water supply; or(4) inspect irrigation systems and perform other enforcement duties as an employee or as a contractor.(b) An individual who performs any of the tasks listed in subsection (a) of this section must meet the qualifications of this subchapter and be licensed according to Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations), unless they are exempt under §30.129 of this title (relating to Exemptions); and must comply with the requirements in Chapter 344 of this title (relating to Landscape Irrigation).</content><note type="source"><p>Source Note: The provisions of this §30.111 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective June 26, 2008, 33 TexReg 4886.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scD/s30.117"><num value="30.117">§30.117</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Irrigation technician--A person who works under the supervision of a licensed irrigator to install, maintain, alter, repair, service, or supervise installation of an irrigation system, including the connection of such system in or to a private or public, raw or potable water supply system or any water supply.(2) Irrigator--A person who sells, designs, offers consultations, installs, maintains, alters, repairs, services, or supervises the installation of an irrigation system, including the connection of such system to a private or public, raw or potable water supply system or any water supply.</content><note type="source"><p>Source Note: The provisions of this §30.117 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 29, 2016, 41 TexReg 7489.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scD/s30.120"><num value="30.120">§30.120</num><heading>Qualifications for Initial License</heading><content>(a) Effective January 1, 2010, the installer license became invalid and was replaced with the irrigation technician license.(b) To obtain an irrigator license, an individual must:(1) meet the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations);(2) complete and pass the basic irrigator training course; and(3) pass all sections of the applicable examination.(c) To obtain an irrigation technician license, an individual must:(1) meet the requirements in Subchapter A of this chapter;(2) complete the basic irrigation technician course; and(3) pass the applicable examination.(d) To obtain an irrigation inspector license, an individual must:(1) meet the requirements in Subchapter A of this chapter;(2) successfully complete:(A) the basic irrigator training course;(B) an approved backflow prevention assembly testing training course; and(C) an approved water conservation or water audit course; or(D) an approved landscape irrigation inspection course; and(3) pass the applicable examination.(e) An individual is ineligible to obtain an irrigation inspector license if the individual engages in or has financial or advisory interest in an entity that:(1) sells, designs, installs, maintains, alters, repairs, or services an irrigation system;(2) provides consulting services relating to an irrigation system; or(3) connects an irrigation system to any water supply.</content><note type="source"><p>Source Note: The provisions of this §30.120 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective June 26, 2008, 33 TexReg 4886; amended to be effective September 29, 2016, 41 TexReg 7489.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scD/s30.122"><num value="30.122">§30.122</num><heading>Qualifications for License Renewal</heading><content>(a) Effective January 1, 2010, the installer license was replaced by an irrigation technician license.(b) To renew an irrigator license, an individual must:(1) meet the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations); and(2) complete 24 hours of approved training credits.(c) To renew an irrigation technician license, an individual must:(1) meet the requirements in Subchapter A of this chapter; and(2) complete 16 hours of approved training credits.(d) To renew an irrigation inspector license, an individual must:(1) meet the requirements in Subchapter A of this chapter; and(2) complete 24 hours of approved training credits.</content><note type="source"><p>Source Note: The provisions of this §30.122 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective June 26, 2008, 33 TexReg 4886; amended to be effective September 29, 2016, 41 TexReg 7489.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scD/s30.129"><num value="30.129">§30.129</num><heading>Exemptions</heading><content>(a) The licensing requirements of this chapter do not apply to a person who:(1) is licensed by a plumbing licensing authority in the state of Texas and is working within the scope provided by the plumbing laws;(2) is registered or licensed as a professional engineer or architect or landscape architect if the work is related to the pursuit of the profession;(3) is under the direct supervision of a licensed irrigator and assists in the installation, maintenance, alteration, repair, or service of an irrigation system; or(4) is an owner of a business that employs a licensed irrigator to supervise the business' sale, design, consultation, installation, maintenance, alteration, repair, and service of irrigation systems. For the purpose of this subchapter, employs means steadily, uniformly, or habitually working in an employer-employee relationship with the intent to earn a livelihood, as opposed to working casually or occasionally.(b) The licensing requirements of this chapter do not apply to:(1) irrigation or yard sprinkler work that is performed by a property owner in a building or on premises owned or occupied by the owner as the owner's home;(2) irrigation or yard sprinkler repair work, other than extension of an existing irrigation or yard sprinkler system or installation of a replacement system that is:(A) performed by a maintenance person who does not act as an irrigator or engage in yard sprinkler construction or maintenance for the public; and(B) incidental to and on premises owned by the business in which the person is regularly employed or engaged;(3) irrigation or yard sprinkler work that is performed:(A) by a regular employee of a railroad who does not act as an irrigator or engage in yard sprinkler construction or maintenance for the public; and(B) on the premises or equipment of the railroad;(4) irrigation and yard sprinkler work that is performed on public property by a person who is regularly employed by a county, city, town, special district, or political subdivision of the state;(5) irrigation or yard sprinkler work that is performed by a person using a garden hose, hose sprinkler, hose-end product, including soaker hose, or agricultural irrigation system;(6) an activity that includes a commercial agricultural irrigation system;(7) irrigation or yard sprinkler work that is performed by an agriculturist, agronomist, horticulturist, forester, gardener, contract gardener, garden or lawn caretaker, nurseryman, or grader or cultivator of land on land owned by the individual performing the work;(8) irrigation or yard sprinkler work that is performed by a member of a property owners' association as defined by Texas Property Code, §202.001, on real property owned by the association or in common by the members of the association if the irrigation or yard sprinkler system water real property that is less than 1/2 acre in size and is used for aesthetic or recreational purposes.(c) A person who is exempt from the license requirements of this subchapter shall comply with the standards established by Chapter 344 of this title (relating to Landscape Irrigation). The term irrigation system does not include a system used on or by an agricultural operation as defined in Texas Agriculture Code, §251.002.</content><note type="source"><p>Source Note: The provisions of this §30.129 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective December 9, 2020, 45 TexReg 8775.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c30/scE"><num value="E">SUBCHAPTER E</num><heading>LEAKING PETROLEUM STORAGE TANK CORRECTIVE ACTION PROJECT MANAGERS AND SPECIALISTS</heading><section identifier="/us/state/tx/tac/t30/p1/c30/scE/s30.171"><num value="30.171">§30.171</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this section is to establish qualifications for issuing and renewing licenses to individuals who supervise leaking petroleum storage tank (LPST) corrective actions. This subchapter also establishes qualifications for issuing and renewing registrations to persons that contract to perform LPST corrective actions.(b) An individual who performs or supervises regulated corrective action services as a project manager on LPST sites must meet the qualifications of this subchapter and be licensed according to Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations), unless exempt under §30.195 of this title (relating to Exemptions).(c) A person that contracts or performs regulated corrective action services on LPST sites as a corrective action specialist must meet the qualifications of this subchapter and be registered according to Subchapter A of this chapter.</content><note type="source"><p>Source Note: The provisions of this §30.171 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scE/s30.177"><num value="30.177">§30.177</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Corrective action--Any assessment (with the exception of an initial site assessment), monitoring, or remedial activities undertaken to investigate the extent of, and to remediate contamination.(2) Corrective action services--Activities required to accomplish regulated corrective action at a leaking petroleum storage tank (LPST) site.(3) Corrective action specialist--A person that is registered to perform regulated corrective action services on LPST sites.(4) Leaking petroleum storage tank (LPST)--An aboveground or underground storage tank which has a confirmed release of a petroleum substance.(5) Project manager--An individual who is licensed to perform or supervise regulated corrective action services on LPST sites.</content><note type="source"><p>Source Note: The provisions of this §30.177 adopted to be effective December 17, 2001, 26 TexReg 10330.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scE/s30.180"><num value="30.180">§30.180</num><heading>Qualifications for Initial License</heading><content>To obtain a license as a corrective action project manager, an individual must have:(1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations);(2) provided documentation of quality of performance including one of the following:(A) sworn statements, on forms approved by the executive director, from at least three individuals, that are not related by blood or marriage, for whom the applicant performed corrective action services, within the previous 24 months. The statements shall attest to the applicant's job reliability and the client's satisfaction. The statements shall also include a description of the type or types of corrective action services performed by the applicant and the physical address where the services occurred. Corrective action services are not limited to experience gained at leaking petroleum storage tank sites, but may also include corrective actions conducted under any environmental program administered by a state or by the federal government under Resource Conservation and Recovery Act; Comprehensive Environmental Response, Compensation, and Liability Act; the Oil Spill Prevention and Response Act; 33 United States Code, Chapter 40, Subchapter I; and Texas Water Code, Chapter 26; or(B) a written explanation of why the sworn statements required by subparagraph (A) of this paragraph are not available. An individual's experience, under the supervision of a licensed corrective action project manager, may be sufficient if the executive director determines that the individual had substantial involvement in the decision-making process during the project. The written explanation shall include a detailed description of three case histories of corrective action services performed by the individual during the previous 24 months;(3) passed an approved examination;(4) documented education and experience:(A) an individual must have received a high school diploma or equivalent and a minimum of four years experience in corrective action services; or(B) an individual must have received a bachelor's degree in the physical, natural, biological, or environmental sciences, engineering, applied geography, or a subject directly relevant to the environmental field, as approved by the executive director; and documented a minimum of two years' experience in corrective action services.</content><note type="source"><p>Source Note: The provisions of this §30.180 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scE/s30.185"><num value="30.185">§30.185</num><heading>Qualifications for License Renewal</heading><content>(a) To renew a license, an individual must:(1) meet the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations); and(2) complete 20 hours of approved continuing education.(b) With the exception of professional engineers and professional geoscientist, an application for renewal of a corrective action project manager license is complete when the executive director has received an application for renewal on a form provided by the executive director, completed in a manner acceptable to the executive director, and is accompanied with the required training certificate indicating 20 hours of continuing education; and payment of applicable fees specified in §30.30 of this title (relating to Terms and Fees for Licenses and Registrations).</content><note type="source"><p>Source Note: The provisions of this §30.185 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scE/s30.190"><num value="30.190">§30.190</num><heading>Qualifications for Initial Registration</heading><content>To obtain a corrective action specialist registration, a person must have:(1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations);(2) provided:(A) proof of a comprehensive general liability insurance policy designating the commission as the certificate holder in an amount of not less than one million dollars ($1,000,000) and of a type approved by the executive director; and(B) a financial statement (balance sheet) prepared in conformity with accounting principles as defined by the American Institute of Public Accountants, documenting an applicant's current net worth of not less than $25,000; or a letter from a certified public accountant who is not employed by the applicant or does not receive payment from the applicant on a regular basis verifying that the applicant's current net worth is not less than $25,000;(3) submitted an application fee of $232; and(4) documented quality of performance including one of the following:(A) sworn statements, on forms approved by the executive director, from at least three persons, not related by blood or marriage, for whom the applicant performed corrective action services, within the previous 24 months. The statements shall attest to the applicant's job reliability and the client's satisfaction. The statements shall also include description of the type of corrective action services that were performed by the applicant and the physical address where the activity occurred. Applicable corrective action experience is not limited to experience gained at leaking petroleum storage tank sites, but may also include corrective actions conducted under any environmental program administered by a state or by the federal government under Resource Conservation and Recovery Act; Comprehensive Environmental Response, Compensation, and Liability Act; the Oil Spill Prevention and Response Act; 33 United States Code, Chapter 40, Subchapter I; and Texas Water Code, Chapter 26. The executive director shall evaluate the explanation and case histories on a case-by-case basis; or(B) a written explanation of why the applicant did not provide the sworn statements required by subparagraph (A) of this paragraph are not available. An applicant's experience, under the supervision of a licensed corrective action project manager, may be sufficient if the executive director determines that the individual had substantial involvement in the decision-making process during the project. The written explanation shall include a detailed description of three case histories of corrective action services performed by the individual during the previous 24 months. The executive director shall evaluate the explanation and case histories on a case-by-case basis.</content><note type="source"><p>Source Note: The provisions of this §30.190 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scE/s30.192"><num value="30.192">§30.192</num><heading>Qualifications for Registration Renewal</heading><content>To renew a registration, a person must:(1) meet the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations);(2) complete an application for registration renewal for a corrective action specialist approved by the executive director, certifying that the company has continued to meet the financial requirements of §30.190 of this title (relating to Qualifications for Initial Registration); and(3) pay a registration renewal fee of $232.</content><note type="source"><p>Source Note: The provisions of this §30.192 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scE/s30.195"><num value="30.195">§30.195</num><heading>Exemptions</heading><content>(a) An individual licensed to practice engineering by the Texas Board of Professional Engineers (TBPE), may become licensed as a corrective action project manager and is exempt from the requirements in this subchapter by submitting:(1) an application form provided by the executive director;(2) a signed written request;(3) a copy of the license as a professional engineer; and(4) a written statement from the TBPE that the applicant is currently licensed to practice engineering in the State of Texas and that the TBPE is not aware of any reason that the applicant is not qualified to perform corrective action. An engineer who obtains a license as a corrective action project manager in this manner is exempt from the requirements in this subchapter.(b) A professional geoscientist licensed to engage in the public practice of geoscience in the State of Texas may become licensed as a corrective action project manager and is exempt from the requirements in this subchapter by submitting:(1) an application form provided by the executive director;(2) a signed written request;(3) a copy of the license as a professional geoscientist; and(4) a written statement from the Texas Board of Professional Geoscientists (TBPG) that the applicant is currently licensed to engage in the public practice of geoscience in the State of Texas and that the TBPG is not aware of any reason that the applicant is not qualified to perform corrective action. A geoscientist who obtains a license as a corrective action project manager in this manner is exempt from the requirements in this subchapter.(c) The commission shall reserve the authority to pursue all appropriate enforcement actions, sanctions, and or penalties, in accordance with applicable law and rules if the TBPE or the TBPG does not pursue appropriate disciplinary or enforcement actions due to a lack of statutory or regulatory authority or jurisdiction, or for any other reason.(d) A person does not have to have a license to perform corrective action services if the person claiming the exemption can show the corrective action was performed or offered to be performed at leaking petroleum storage tank (LPST) sites which are:(1) completely exempt from regulation under §334.3(a) of this title (relating to Exemptions for Underground Storage Tanks (USTs) and UST Systems) or §334.123 of this title (relating to Exemptions for Aboveground Storage Tanks (ASTs)); or(2) completely excluded from regulation under §334.4(a) of this title (relating to Exclusions for Underground Storage Tanks (USTs) and UST Systems) or §334.124 of this title (relating to Exclusions for Aboveground Storage Tanks (ASTs)).(e) The requirements of this subchapter do not apply to corrective action specialists when the party claiming the exemption can show that corrective action services were completed on or before October 1, 1994. Any corrective action service started by a corrective action specialist on or after October 1, 1994, is subject to the requirements of this subchapter. Any corrective action service started by a corrective action specialist before October 1, 1994, which is still being performed on or after October 1, 1994, is subject to the requirements of Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks).(f) The requirements of this subchapter do not apply to corrective action project managers when the party claiming the exemption can show that corrective action services were completed on or before January 1, 1995. Any corrective action service started by a corrective action project manager on or after January 1, 1995, is subject to the requirements of this subchapter. Any corrective action service started by a corrective action project manager before January 1, 1995, which is still being performed on or after January 1, 1995, is subject to the requirements of this subchapter.(g) The requirements of this subchapter do not apply to:(1) installation, repair, and removal of USTs when the work is conducted and supervised by persons or entities registered or licensed in accordance with Subchapter I of this chapter (relating to Underground Storage Tank On-Site Supervisor Licensing and Contractor Registration); and(2) the following activities, but only when such activities are performed as part of a UST permanent removal-from-service project conducted under the direct supervision of an on-site supervisor licensed to remove USTs under Chapter 213 of this title (relating to Edwards Aquifer), and further subject to all appropriate requirements and standards in this subchapter, including enforcement authority:(A) subject to prior written commission approval, excavation of contaminated soil when necessary for corrective action at the LPST site of an amount not to exceed 300 cubic yards of compacted materials (390 cubic yards of uncompacted materials) beyond the backfill unless specific prior written authorization from the commission is granted for additional excavation yardage;(B) sampling of the excavated materials described in subparagraph (A) of this paragraph, and the floor and walls of the area excavated as necessary to determine levels of contamination as required by Chapter 334, Subchapter C or D of this title (relating to Technical Standards; and Corrective Action and Release Reporting);(C) passive aeration and necessary routine tilling and sampling of the excavated materials described in subparagraph (A) of this paragraph according to air program regulations; and(D) lawful disposal of the excavated materials described in subparagraph (A) of this paragraph.(h) The requirements of this subchapter do not apply to:(1) providing alternate water supplies; or(2) analyzing samples by a laboratory.(i) The requirements of this subchapter do not apply to emergency abatement actions in compliance with §334.454 of this title (relating to Exception for Emergency Abatement Actions).(j) The requirements of this subchapter do not apply to facilities which are authorized to store or treat petroleum-substance waste from more than one LPST site under the provisions of Chapter 334 of this title.(k) The requirements of this subchapter do not apply to owners or operators, their direct employees, parent companies, or subsidiaries that on behalf of the owner or operator coordinate with, manage, or supervise corrective action specialists or corrective action project managers, or coordinate with the commission, or review the corrective action reports. The tank owners or operators, their direct employees, parent companies, or subsidiaries who conduct corrective action services are subject to all provisions of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §30.195 adopted to be effective December 17, 2001, 26 TexReg 10330.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c30/scF"><num value="F">SUBCHAPTER F</num><heading>MUNICIPAL SOLID WASTE FACILITY SUPERVISORS</heading><section identifier="/us/state/tx/tac/t30/p1/c30/scF/s30.201"><num value="30.201">§30.201</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this section is to establish qualifications for issuing and renewing licenses to an individual who supervises or manages the operation of municipal solid waste (MSW) facilities.(b) At least one individual who supervises or manages the operation of an MSW facility must meet the qualifications of this subchapter and be licensed according to Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations).(c) Individuals who obtained a class "A" license prior to September 27, 2007 are authorized to supervise any level or type of MSW facility.(d) Individuals who obtained a class "A" license after September 27, 2007 by completing only the "A" MSW Facility Supervisor course and passing the applicable exam, will need to complete the "B" MSW Facility Supervisor course before being eligible to supervise those facilities requiring a class "B" MSW facility supervisor.</content><note type="source"><p>Source Note: The provisions of this §30.201 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective January 6, 2011, 35 TexReg 11903.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scF/s30.207"><num value="30.207">§30.207</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Experience--Actual experience gained from participating as a principal operator, foreman, supervisor, or manager of a solid waste facility appropriate to the respective class of license or other solid waste management experience approved by the executive director.(A) College credit hours obtained from an accredited institution may be substituted for experience on the basis of:(i) 32 college credit hours for one year of experience, up to a maximum of two years for a class "A" license; or(ii) 32 college credit hours for one year of experience, up to a maximum of one year for a class "B" license.(B) Individuals who apply for a class "A" or "B" license, and rely on college credit hours as a substitute for meeting the experience requirements, must have those hours in chemistry, biology, engineering, soil science, geosciences, environmental science, or other similar discipline approved by the executive director.(2) Solid waste facility supervisor--An individual who is trained in the practical aspects of the design, operation, maintenance, or supervision of a solid waste facility according to standards, rules, or orders established by the commission.(3) Manager of Landfill Operations (MOLO) certification--Certification issued by the Solid Waste Association of North America (SWANA) to individuals who have completed SWANA's MOLO course and passed the applicable certification examination.</content><note type="source"><p>Source Note: The provisions of this §30.207 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective January 6, 2011, 35 TexReg 11903.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scF/s30.210"><num value="30.210">§30.210</num><heading>Qualifications for Initial License</heading><content>To obtain a license, an individual must have met the requirements of Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations), and the following requirements for each class of license: Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §30.210 adopted to be effective September 27, 2007, 32 TexReg 6523; amended to be effective January 6, 2011, 35 TexReg 11903.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scF/s30.211"><num value="30.211">§30.211</num><heading>Provisional Licenses</heading><content>(a) A provisional license may be issued to an individual applying for a class "A" or "B" license who:(1) has completed the required training, passed the applicable examination and met the minimum education requirements, but lacks the required experience; or(2) has passed the applicable examination, met the education and experience requirements, but lacks the required training.(b) A provisional license shall have:(1) a validity period of two years; and(2) an application fee of $74.00.(c) Provisional licenses are not renewable.(d) To continue to supervise a municipal solid waste (MSW) facility after the expiration date of a provisional license, the provisional license holder must:(1) complete any missing requirements pertaining to the corresponding license originally applied for before the expiration date of the provisional license; and(2) have been issued the class of license that is required for the type of MSW facility being supervised.</content><note type="source"><p>Source Note: The provisions of this §30.211 adopted to be effective January 6, 2011, 35 TexReg 11903.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scF/s30.212"><num value="30.212">§30.212</num><heading>Qualifications for License Renewal</heading><content>To renew a license, an individual must have:(1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations); and(2) completed the following hours of continuing education:(A) Class A--16 hours; or(B) Class B--16 hours.</content><note type="source"><p>Source Note: The provisions of this §30.212 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective January 6, 2011, 35 TexReg 11903.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scF/s30.213"><num value="30.213">§30.213</num><heading>Classification of Municipal Solid Waste Facilities and Level of License Required</heading><content>(a) Each classification of a municipal solid waste (MSW) facility shall employ at least one licensed individual who supervises or manages the operations of a MSW facility. The level of license required for the different classifications of facilities is as follows: Attached Graphic(b) The level of license required for the different classifications of facilities described in subsection (a) of this section are applicable unless the facility's permit specifies that the facility be supervised by a level of supervisor different from that required in subsection (a) of this section. The facility's permit supersedes the requirement in subsection (a) of this section.</content><note type="source"><p>Source Note: The provisions of this §30.213 adopted to be effective September 27, 2007, 32 TexReg 6523; amended to be effective January 6, 2011, 35 TexReg 11903.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scF/s30.214"><num value="30.214">§30.214</num><heading>Exemptions</heading><content>The following municipal solid waste (MSW) facilities do not require a licensed supervisor:(1) Type VII land application facilities;(2) Type VIII used or scrap tire facilities;(3) Type IX beneficial landfill gas recovery facilities;(4) animal crematories, dual chamber incinerators, and air curtain incinerators operating in accordance with an MSW permit by rule; and(5) MSW facilities exempt from permitting or registration, unless otherwise described in §30.210 of this title (relating to Qualifications for Initial License).</content><note type="source"><p>Source Note: The provisions of this §30.214 adopted to be effective September 27, 2007, 32 TexReg 6523; amended to be effective January 6, 2011, 35 TexReg 11903.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c30/scG"><num value="G">SUBCHAPTER G</num><heading>ON-SITE SEWAGE FACILITIES INSTALLERS, APPRENTICES, DESIGNATED REPRESENTATIVES, MAINTENANCE PROVIDERS, MAINTENANCE TECHNICIANS, AND SITE EVALUATORS</heading><section identifier="/us/state/tx/tac/t30/p1/c30/scG/s30.231"><num value="30.231">§30.231</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to establish qualifications for issuing and renewing licenses and registrations for a person that:(1) constructs any part of an on-site sewage facility;(2) performs the duties of a designated representative;(3) performs the duties of a site evaluator;(4) performs the duties of an apprentice;(5) performs the duties of a licensed maintenance provider; or(6) performs the duties of a maintenance technician.(b) A person that performs any of the tasks listed in subsection (a) of this section must meet the qualifications of this subchapter and be licensed or registered according to Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations), unless exempt under §30.244 of this title (relating to Exemptions), and must comply with the requirements of Chapter 285 of this title (relating to On-Site Sewage Facilities).(c) Effective September 1, 2009, all current maintenance provider registrations were converted to maintenance technician registrations.</content><note type="source"><p>Source Note: The provisions of this §30.231 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective March 1, 2006, 31 TexReg 1301; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective September 11, 2008, 33 TexReg 7530; amended to be effective September 29, 2016, 41 TexReg 7489.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scG/s30.237"><num value="30.237">§30.237</num><heading>Definitions</heading><content>The definitions in Chapter 285 of this title (relating to On-Site Sewage Facilities) apply to this subchapter.</content><note type="source"><p>Source Note: The provisions of this §30.237 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 11, 2003, 28 TexReg 7756.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scG/s30.240"><num value="30.240">§30.240</num><heading>Qualifications for Initial License</heading><content>(a) To obtain an Installer I license, an individual must have:(1) met the requirements of Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations);(2) completed the Installer I basic training course; and(3) passed the Installer I examination.(b) To obtain an Installer II license, an individual must have:(1) met the requirements of Subchapter A of this chapter;(2) met one of the following requirements:(A) held an Installer I license for at least one year;(B) held an apprentice registration for at least two years; or(C) previously possessed an Installer II license;(3) completed the Installer II basic training course;(4) passed the Installer II examination; and(5) met the experience requirements. Applicants for an Installer II license must submit statements attesting to the applicant's work experience. Such statements shall include a description of the type of on-site sewage facility (OSSF) work that was performed by the applicant and the physical addresses where the activity occurred. The experience shall be actual work accomplished under the license or registration. The number of systems will not substitute for the time required. Experience requirements are:(A) to document experience as an Installer I, the applicant shall submit either:(i) sworn statements from at least three individuals for whom the applicant performed construction services, statements cannot be provided by individuals related by blood or marriage to the applicant or applicant's spouse;(ii) a sworn statement from a designated representative who has approved a minimum of three installations performed by the applicant; or(iii) other documentation of the applicant's work experience, approved by the executive director;(B) to document experience as an apprentice, the applicant shall submit either:(i) a sworn statement from the installer for whom the applicant performed construction services;(ii) a sworn statement from a designated representative who witnessed the applicant working on at least six OSSF installations; or(iii) other documentation of the applicant's work experience, approved by the executive director.(c) To obtain a designated representative license, an individual must have:(1) met the requirements of Subchapter A of this chapter;(2) completed the designated representative basic training course; and(3) passed the designated representative examination.(d) To obtain a site evaluator license, an individual must have:(1) met the requirements of Subchapter A of this chapter; and(2) met the following requirements:(A) complete the site evaluator basic training course;(B) pass the site evaluator examination; and(C) possess a current Installer II license, designated representative license, professional engineer license, professional sanitarian license, certified professional soil scientist, or professional geoscientist license in the soil science discipline (an individual who maintains a current license through the Texas Board of Professional Geoscientists according to the requirements for professional practice).(e) Effective September 1, 2009, a maintenance provider must be licensed with the executive director. To obtain a maintenance provider license, a person must:(1) meet the requirements of Subchapter A of this chapter;(2) submit verification that the applicant holds a current Installer II, Class C (or higher) Wastewater license or acceptable documentation of three years experience as a maintenance technician. Registered maintenance provider experience obtained prior to the effective date of these rules may be applied towards the three years of experience as a maintenance technician; and(3) successfully complete agency-approved courses in basic maintenance and advanced aerobic wastewater treatment related to residential proprietary aerobic treatment units. Advanced aerobic wastewater treatment courses must have been approved after September 1, 2008;(4) pass the maintenance provider licensing examination; and(5) any additional information required by the executive director.</content><note type="source"><p>Source Note: The provisions of this §30.240 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 11, 2003, 28 TexReg 7756; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective September 11, 2008, 33 TexReg 7530; amended to be effective September 29, 2016, 41 TexReg 7489.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scG/s30.242"><num value="30.242">§30.242</num><heading>Qualifications for License Renewal</heading><content>(a) To renew an Installer I, Installer II, designated representative, maintenance provider, or site evaluator license, an individual must have:(1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations); and(2) completed a minimum of 24 hours of approved training credits.(b) In addition to the requirements in subsection (a) of this section, an individual renewing a license for site evaluator shall demonstrate possession of a current license specified in §30.240(d)(2)(C) of this title (relating to Qualifications for Initial License) except for individuals who were granted a site evaluator license on the basis of holding either an Installer II or designated representative license.(c) For the renewal of a maintenance provider license, the individual is not required to hold a current Installer II or Wastewater C license, but must meet all the requirements in subsection (a) of this section.</content><note type="source"><p>Source Note: The provisions of this §30.242 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 11, 2003, 28 TexReg 7756; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective September 11, 2008, 33 TexReg 7530.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scG/s30.244"><num value="30.244">§30.244</num><heading>Exemptions</heading><content>(a) Persons that in their individual capacities:(1) own a single-family dwelling are not required to be a licensed installer in order to install or repair an on-site sewage facility (OSSF) on the individual's property. This provision does not apply to property that is to be developed for sale or lease. If the owner compensates a person to construct any portion of an OSSF, the individual performing the work shall be a licensed installer. The owner shall meet all permitting, construction, and maintenance requirements of the permitting authority. The site evaluation must be performed by an individual who possesses either a current site evaluator or a professional engineer license;(2) own a single-family dwelling that is serviced by an on-site sewage disposal system using aerobic treatment are not required to be a licensed installer in order to install or repair an OSSF servicing that single-family dwelling. Such person must meet all permitting, construction, and maintenance requirements of the permitting authority. If that person compensates a person to construct any portion of an OSSF, the individual performing the work must be a licensed installer. This provision does not apply to property that is developed for sale or lease;(3) elect to maintain the on-site sewage disposal system using aerobic treatment. The aerobic treatment system owner is not required to register with the agency as a maintenance provider, but must comply with the requirements of Chapter 285 of this title (relating to On-Site Sewage Facilities).(b) A licensed electrician who installs the electrical components, or a person that delivers a treatment or pump tank and sets the tank or tanks into an excavation, is not required to have an installer license.(c) A professional engineer may perform site evaluations without obtaining a site evaluator license. However, a professional engineer may obtain a site evaluator license by complying with the requirements in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §30.244 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 11, 2003, 28 TexReg 7756; amended to be effective March 1, 2006, 31 TexReg 1301; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scG/s30.245"><num value="30.245">§30.245</num><heading>Registration of Apprentices and Maintenance Technicians</heading><content>(a) Apprentice. An individual who enters into an apprenticeship under the supervision of a licensed on-site sewage facility (OSSF) installer shall be registered with the executive director.(1) Application. An application for registration shall be made on a standard form provided by the executive director. The completed application and a $111 fee must be submitted to the executive director.(2) Notification. After verifying that the requirements for registration have been met, the executive director shall mail the registration certificate no later than 45 days after the effective date of the registration. An individual's application may be denied according to §30.33 of this title (relating to License or Registration Denial, Warning, Suspension, or Revocation).(3) Expiration. The apprentice registration will expire three years after the issuance date of the registration.(4) An apprentice's registration may not be renewed if:(A) the registration has been expired for more than 30 days;(B) the registration has been revoked; or(C) the apprentice has obtained an installer license.(5) An apprentice whose registration renewal application is not received by the executive director or is not postmarked within 30 days after the registration expiration date of the current registration, must submit a new application with the appropriate fee. The apprentice will be assigned a new registration number and date, but will not lose any experience gained under the previous registration.(b) Maintenance technician. An individual who maintains OSSFs for compensation and is not a licensed maintenance provider shall be registered with the executive director as a maintenance technician. A maintenance technician shall have successfully completed an agency-approved course in basic maintenance provider training.(1) Application. An application for registration shall be made on a standard form provided by the executive director. The completed application and a $111 fee must be submitted to the executive director.(2) Notification. After verifying that the requirements for registration have been met, the executive director shall mail the registration certificate no later than 45 days after the effective date of the registration. An individual's application may be denied according to §30.33 of this title.(3) Expiration or termination. The maintenance technician's registration will expire three years after the issuance date of the registration.(4) A maintenance technician's registration may not be renewed if:(A) the registration has been expired for more than 30 days;(B) the registration has been revoked; or(C) the registration has been replaced by a higher class of license.(5) A maintenance technician whose registration renewal application is not received by the executive director or is not postmarked within 30 days after the registration expiration date of the current registration, must submit a new application with the appropriate fee. The maintenance technician will be assigned a new registration number and date, but will not lose any experience gained under the previous registration.</content><note type="source"><p>Source Note: The provisions of this §30.245 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective September 11, 2008, 33 TexReg 7530.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c30/scH"><num value="H">SUBCHAPTER H</num><heading>WATER TREATMENT SPECIALISTS</heading><section identifier="/us/state/tx/tac/t30/p1/c30/scH/s30.261"><num value="30.261">§30.261</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this section is to establish qualifications for issuing and renewing licenses to an individual who installs and repairs water treatment equipment.(b) An individual who installs, repairs, or services water treatment equipment under contract must meet the qualifications of this subchapter and be licensed according to Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations).</content><note type="source"><p>Source Note: The provisions of this §30.261 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scH/s30.267"><num value="30.267">§30.267</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Installation of water treatment appliances--Includes connecting the appliances to all necessary utility connections in residential, commercial, or industrial facilities.(2) Water treatment--A business conducted under contract that requires the interpretation of analysis of water samples, including the ability to determine how to treat influent or effluent water, alter or purify water, or add or remove a mineral, chemical, or bacteriological content or substance. The term also includes the installation, exchange, connection, maintenance, service, and repair of potable water treatment equipment and appliances in public or private water systems.(3) Water treatment equipment--Appliances used to alter or purify water or to alter a mineral, or bacteriological content, or substance.(4) Water treatment specialist--A person who is licensed under this chapter to perform water treatment on a contract basis.</content><note type="source"><p>Source Note: The provisions of this §30.267 adopted to be effective December 17, 2001, 26 TexReg 10330.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scH/s30.270"><num value="30.270">§30.270</num><heading>Qualifications for Initial License</heading><content>To obtain a license, an individual must have: (1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations); and (2) met the following requirements: Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §30.270 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scH/s30.272"><num value="30.272">§30.272</num><heading>Qualifications for License Renewal</heading><content>To renew a license, an individual must have:(1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations); and(2) completed 12 hours of approved training credits.</content><note type="source"><p>Source Note: The provisions of this §30.272 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scH/s30.274"><num value="30.274">§30.274</num><heading>Classification of Licenses</heading><content>(a) Class 1--Individuals who have been issued this license must work under the supervision of an individual holding a higher class license, a local plumbing inspector, or a health official that has jurisdiction where the work is performed.(b) Class 1--Work is restricted to the following activities:(1) exchange and regeneration of portable tanks;(2) regeneration of nonportable tanks; or(3) other tasks which may be assigned by the supervisor and for which direct supervision is provided.(c) Class 2--Individuals who have been issued this license:(1) shall have demonstrated a practical working knowledge of the mechanics and servicing principles of water conditioners;(2) are deemed able to perform water treatment installations, exchanges, services, or repairs of equipment;(3) are considered to be aware of the public health requirements connected with their activities; and(4) are excluded from working on reverse osmosis and deionization equipment unless the work is performed under the supervision of an individual holding a higher class license.(d) Class 3--Individuals who have been issued this license meet minimum standards of qualifications established for the installation, exchange, servicing, and repair of water treatment equipment and appliances, including reverse osmosis and deionization equipment.</content><note type="source"><p>Source Note: The provisions of this §30.274 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scH/s30.279"><num value="30.279">§30.279</num><heading>Exemptions</heading><content>(a) Individuals who are licensed under the Texas Occupations Code, Chapter 1301 are exempt from the requirements of this subchapter.(b) Employees of industrial facilities who install or service water treatment equipment at their facilities are exempt from the requirements of this subchapter.(c) Employees of public water systems installing water treatment equipment at their system who hold a Class C license or higher, are exempt from the requirements of this subchapter.(d) Employees of registered operations companies installing water treatment equipment at the facilities for which the operations company has a contract to operate and who hold a Class C license or higher, are exempt from the requirements of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §30.279 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 29, 2016, 41 TexReg 7489.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c30/scI"><num value="I">SUBCHAPTER I</num><heading>UNDERGROUND STORAGE TANK ON-SITE SUPERVISOR LICENSING AND CONTRACTOR REGISTRATION</heading><section identifier="/us/state/tx/tac/t30/p1/c30/scI/s30.301"><num value="30.301">§30.301</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to establish qualifications for issuing and renewing:(1) licenses to individuals who supervise the installation, repair, or removal of an underground storage tank (UST); and(2) registrations to persons that offer to undertake, represent themselves as being able to undertake, or undertake the installation, repair, or removal of a UST.(b) A person that performs any of the tasks listed in subsection (a) of this section must meet the qualifications of this subchapter, and be licensed or registered according to Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations), unless exempt under §30.319 of this title (relating to Exemptions), and must comply with the requirements in Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks).</content><note type="source"><p>Source Note: The provisions of this §30.301 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scI/s30.307"><num value="30.307">§30.307</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Corrosion specialist--A person who, by reason of a thorough knowledge of the physical sciences and the principals of engineering and mathematics acquired by a professional education and related practical experience, is qualified to engage in the practice of corrosion control on buried or submerged metal piping systems and metal tanks, and who is either:(A) certified as a corrosion specialist or a cathodic protection specialist by NACE International; or(B) licensed as a professional engineer by the Texas Board of Professional Engineers in a branch of engineering that includes education and experience in corrosion control of buried or submerged metal piping systems and metal tanks.(2) Corrosion technician--A person who can demonstrate an understanding of the principals of soil resistivity, stray current, structure-to-soil potential, and component electrical isolation measurements as they relate to corrosion protection and control on buried or submerged metal tanks and metal piping systems; who is qualified by appropriate training and experience to engage in the practice of inspection and testing for corrosion protection and control on such systems, including the inspection and testing of all common types of cathodic protection systems; and who either:(A) has been certified by NACE International as a corrosion technician, corrosion technologist, or senior corrosion technologist;(B) is employed under the direct supervision of a corrosion specialist (as defined in paragraph (1) of this section), where the corrosion specialist is responsible for maintaining control and oversight over all corrosion testing and inspection activities; or(C) has been officially qualified as a cathodic protection tester, according to the assessment and examination procedures prescribed by NACE International.(3) Critical junctures--In the case of an installation, repair, or removal of an underground storage tank (UST) system, all of the following steps:(A) preparing the tank bedding immediately before receiving the tank;(B) setting the tank and the piping, including placement of any anchoring devices, backfill to the level of the tank, and strapping, if any;(C) connecting piping systems to the tank;(D) pressure testing the UST, including associated piping, performed during the installation;(E) completing backfill and filling the excavation;(F) anytime during the repair in which the piping system is connected or reconnected to the tank;(G) anytime during the repair in which the tank or its associated piping is tested; and(H) anytime during the removal of the UST.(4) Engineering construction--Construction designed by a civil or mechanical engineer, as opposed to building construction which is designed by an architectural engineer.(5) Installation--The installation of underground storage tanks and ancillary equipment, including, but not limited to, the following activities:(A) installation of new or used tanks at a new or existing facility;(B) installation of new or replacement piping for new or existing tanks;(C) addition of secondary containment equipment for new or existing tanks or piping;(D) addition or replacement of the following types of equipment at a new or existing facility:(i) spill and overfill prevention equipment, as required in §334.51 of this title (relating to Spill and Overfill Prevention and Control); and(ii) equipment or devices which are permanently installed for the purpose of providing release detection or release monitoring as required for compliance with §334.50 of this title (relating to Release Detection), except:(I) observation wells or monitoring wells (excluding equipment and devices therein) constructed by a well driller who possesses the appropriate license required by the Texas Occupations Code, Chapter 1901; or(II) any equipment temporarily installed solely for the purpose of conducting a tank or piping tightness test, as defined in §334.2 of this title (relating to Definitions), except when a tightness test is a prescribed element of a critical juncture of an installation, repair, or removal. Temporarily in this context means the reasonable amount of time required to attach the equipment, make the tests, and remove the equipment, under the given conditions at the site;(E) installation or replacement of anchoring systems designed to prevent tank flotation;(F) installation or replacement of vent lines at new or existing facilities;(G) installation or replacement of submersible pumping systems at new or existing facilities; and(H) installation or replacement of any underground Stage I or Stage II vapor recovery systems.(6) On-site supervisor--An individual who supervises the installation, repair, or removal of an underground storage tank (UST) in the State of Texas, and who meets the licensing requirements of this subchapter for one of the following licenses:(A) Class A for an on-site supervisor who supervises the installation or repair of UST systems; or(B) Class B for an on-site supervisor who supervises the removal of UST systems.(C) Class A/B combination for an on-site supervisor who supervises the installation, repair, and removal of UST systems.(7) Removal--Permanent removal of an underground storage tank from service as defined in §334.2 of this title (relating to Definitions) conducted according to §334.55 of this title (relating to Permanent Removal from Service).(8) Repair--The modification or correction of an underground storage tank (UST) and ancillary equipment. The term does not include:(A) relining a UST through the application of epoxy resins or similar materials;(B) performing a tightness test to ascertain the integrity of the tank, except when a tightness test is a prescribed element of a critical juncture of an installation, repair, or removal;(C) maintaining and inspecting cathodic protection devices by a corrosion specialist or corrosion technician;(D) performing emergency actions to halt or prevent leaks or ruptures; or(E) performing minor maintenance on ancillary aboveground equipment.(9) Underground storage tank (UST)--Any one or combination of underground tanks and any connecting underground pipes used to contain accumulation of regulated substances, the volume of which, including the volume of the connecting underground pipes, is 10% or more beneath the surface of the ground.(10) Underground storage tank contractor (or UST contractor)--A person that offers to undertake, represents itself as being able to undertake, or undertakes the installation, repair, or removal of a UST, and who meets the registration requirements of this subchapter.(11) Underground utilities--Public underground water systems, sanitary sewers, or storm sewers. The phrase "underground utilities" does not include private underground pipe systems (water or sewer piping), power or communication cables, or natural gas lines.</content><note type="source"><p>Source Note: The provisions of this §30.307 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective September 29, 2016, 41 TeReg 7489.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scI/s30.310"><num value="30.310">§30.310</num><heading>Qualifications for Initial License</heading><content>(a) An individual applying for an on-site supervisor license must apply for one of the following levels of licenses:(1) Class A;(2) Class B; or(3) Class A/B combination.(b) To obtain an on-site supervisor license, an individual must:(1) have met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations);(2) be at least 18 years of age;(3) document at least two years of active experience in installation, repair, or removal of underground storage tanks (USTs), underground utilities, or other engineering construction;(4) submit sworn statements, on forms approved by the executive director, from at least four persons (three from clients not related by blood or marriage and one from a current or previous employer, or employer's representative) who have engaged the applicant or the applicant's employer within the previous 24 months to perform: UST installations, repairs, or removals; underground utility construction; or engineering construction. These statements shall attest to the applicant's character, knowledge of construction, and ability to supervise the construction activity. Such statements shall also include a description of the type of construction performed by the applicant;(5) submit a sworn statement by the applicant as to the authenticity of the information provided on the application;(6) prior to the examination, submit the appropriate certificates of completion for the following levels of licenses:(A) Class A--28 hours of training and education courses in the installation and repair of USTs;(B) Class B--12 hours of training and education courses in the removal of USTs; or(C) Class A/B combination--40 hours of training and education courses in the installation, repair, and removal of USTs; and(7) pass the appropriate licensing examination.(c) Individuals with a Class A or Class B may upgrade to a Class A/B combination by submitting a new application with the required fee, completing the required initial training, and passing the examination.</content><note type="source"><p>Source Note: The provisions of this §30.310 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scI/s30.312"><num value="30.312">§30.312</num><heading>Qualifications for License Renewal</heading><content>To renew an on-site supervisor license, an individual must have:(1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations); and(2) completed eight hours of approved continuing education for each license held.</content><note type="source"><p>Source Note: The provisions of this §30.312 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scI/s30.315"><num value="30.315">§30.315</num><heading>Qualifications for Initial Registration</heading><content>To obtain an underground storage tank (UST) contractor registration, a person must have:(1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations);(2) provided:(A) proof of commercial liability insurance designating the commission as the certificate holder in an amount of not less than one million dollars ($1,000,000) and of a type approved by the executive director; and(B) a financial statement (balance sheet) prepared in conformity with accounting principles as defined by the American Institute of Public Accountants, documenting an applicant's current net worth of not less than $25,000; or a letter from a certified public accountant who is not employed by the applicant or does not receive payment from the applicant on a regular basis verifying that the applicant's current net worth is not less that $25,000;(3) submitted a sworn statement from the applicant attesting to the accuracy of the information provided on the application;(4) submitted an application fee of $232; and(5) provided documentation of quality of performance including one of the following:(A) sworn statements, on forms approved by the executive director, from at least three persons, not related by blood or marriage, who have engaged the applicant within the previous 12 months to perform: UST installations, repairs, or removals; underground utility construction; or engineering construction. These statements shall attest to the applicant's business integrity and quality of performance. Such statements shall also include a description of the type of construction performed by the applicant; or(B) a written explanation indicating the reason the applicant did not provide the sworn statements required in subparagraph (A) of this paragraph and a detailed description of at least three case histories of typical UST construction activities performed by the applicant during the previous 12 months.</content><note type="source"><p>Source Note: The provisions of this §30.315 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scI/s30.317"><num value="30.317">§30.317</num><heading>Qualifications for Registration Renewal</heading><content>To renew an underground storage tank (UST) contractor registration a person must have:(1) met the requirements in Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations);(2) certified that the UST contractor has commercial liability insurance designating the commission as the certificate holder in an amount of not less than one million dollars ($1,000,000) and of a type approved by the executive director;(3) certified that the UST contractor has a net worth of not less than $25,000; and(4) submitted a renewal fee of $232.</content><note type="source"><p>Source Note: The provisions of this §30.317 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scI/s30.319"><num value="30.319">§30.319</num><heading>Exemptions</heading><content>(a) A license is not required for:(1) an on-site supervisor who installs, repairs, or removes underground storage tank (UST) systems when such systems are completely exempt from regulation under §334.3(a) of this title (relating to Exemptions for Underground Storage Tanks (USTs) and UST Systems) or completely excluded from regulation under §334.4(a) of this title (relating to Exclusions for Underground Storage Tanks (USTs) and UST Systems); or(2) an individual who assists with the installation, repair, or removal of UST systems and is under the direct, on-site supervision of a licensed on-site supervisor.(b) A registration is not required for a person that installs, repairs, or removes UST systems that are completely exempt from regulation under §334.3(a) of this title, or completely excluded from regulation under §334.4(a) of this title.</content><note type="source"><p>Source Note: The provisions of this §30.319 adopted to be effective September 27, 2007, 32 TexReg 6523.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c30/scJ"><num value="J">SUBCHAPTER J</num><heading>WASTEWATER OPERATORS AND OPERATIONS COMPANIES</heading><section identifier="/us/state/tx/tac/t30/p1/c30/scJ/s30.331"><num value="30.331">§30.331</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to establish qualifications for issuing and renewing licenses and registrations to:(1) domestic wastewater treatment facility operators;(2) wastewater collection system operators; and(3) companies that operate these facilities on a contract basis.(b) Persons that operate, assist in the operation, or contract to operate domestic wastewater treatment facilities or supervise wastewater collection activities, other than an operator-in-training, must be licensed or registered and meet the qualifications of this subchapter and Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations); and must comply with the requirements in Chapter 217 of this title (relating to Design Criteria for Domestic Wastewater Systems), Chapter 317 of this title (relating to Design Criteria Prior to 2008), and all other applicable rules under the jurisdiction of this commission.(c) Operators are responsible for performing adequate process control of wastewater treatment and collection facilities.(d) All Class D and Class I licenses previously issued to operators who do not possess a high school diploma or equivalent, may still be renewed according to §30.342 of this title (relating to Qualifications for License Renewal).(e) An individual who has an honorary license shall not operate a domestic wastewater treatment facility or supervise a wastewater collection system.(f) The holder of a license or registration is not subject to revocation or suspension of a license or registration if the licensed operator or registered company is unable to properly operate the wastewater treatment or collection facility due to:(1) the refusal of the permittee to authorize the necessary funds to operate the wastewater treatment or collection facility properly; or(2) the failure of the wastewater treatment or collection facility to comply with its wastewater disposal permit resulting from faulty design or construction of the facility.</content><note type="source"><p>Source Note: The provisions of this §30.331 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 29, 2016, 41 TexReg 7489.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scJ/s30.337"><num value="30.337">§30.337</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Chief operator--The licensed operator with overall responsibility for the operation of a wastewater treatment facility.(2) Designated courses--Courses or their equivalent which are required to obtain a wastewater operator license.(3) Domestic wastewater--Waste and wastewater from humans or household operations that are discharged to a wastewater collection system or otherwise enters a wastewater facility.(4) Honorary license--License converted from a perpetual license which has been discontinued by the commission.(5) Operator-in-charge--Licensed operator who has been charged with the on-site supervision and operation of the wastewater facility in the absence of the chief operator.(6) Operator-in-training--An individual entering the field of wastewater treatment or collection for the first time who has less than one year of experience and is in training to operate a wastewater treatment facility, or supervise a wastewater collection system.(7) Wastewater collection system--Lines, manholes, pumps, pumping stations, and other components necessary to collect and transport domestic wastewater.(8) Wastewater collection system operator--Any individual, in active field supervision, who provides daily on-site inspection and supervision of wastewater collection system operation or maintenance activities.(9) Wastewater disposal permit--A domestic wastewater disposal permit issued by the commission in accordance with Texas Water Code, Chapter 26.(10) Wastewater treatment facility--Any facility installed for the purpose of treating, neutralizing, or stabilizing wastewater, the operation of which requires a wastewater disposal permit from the commission.(11) Wastewater system operations company--Any person or other nongovernmental entity that provides operations services, on a contract basis, to one or more wastewater treatment facilities or collection systems.(12) Wastewater treatment facility operator--An individual who performs process control tasks or makes performance control decisions at a wastewater treatment facility.(13) Work experience--The actual performance of job tasks in domestic wastewater, considered essential for the treatment or collection of domestic wastewater.</content><note type="source"><p>Source Note: The provisions of this §30.337 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scJ/s30.340"><num value="30.340">§30.340</num><heading>Qualifications for Initial License</heading><content>(a) To obtain a license, an individual must have met the requirements of Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations), the following requirements for each class of license, and pass an examination.Attached Graphic(b) At least one-half of the total experience required for a wastewater treatment license must be in actual domestic wastewater treatment facility operation or maintenance duties. Related experience, which involves tasks similar to those required for operation of wastewater treatment facilities, will count at a rate of 50% toward meeting the total experience requirement. For laboratory experience to be applicable, the laboratory must be owned and operated by the permittee and the laboratory technician must consult daily with operational personnel.(c) Wastewater collection system experience must be in actual wastewater collection system operation or maintenance duties. Credit for wastewater experience that is not directly connected with collection system operation or maintenance shall be approved if the experience involves tasks that are similar to that required for the operation and maintenance of collection systems. Each year of related experience shall count as 1/2 year of experience. Each year of experience in collection system operation and maintenance shall only count as 1/2 year of experience toward a wastewater treatment facility operator license.(d) Individuals who request to substitute a bachelor's or master's degree for experience at the Class A, Class B, or Class III level must have a major in chemistry, biology, engineering, microbiology, bacteriology, or another similar discipline approved by the executive director.(e) For each license, applicants may substitute either college hours or training credit hours to meet the experience requirement: (1) 16 semester hours or an additional 20 hours of training credits are equal to six months of the required work experience; (2) Class C and Class II applicants may only substitute up to one year of the required work experience; and(3) Class A, Class B, and Class III applicants may only substitute up to two years of the required work experience.(f) The hours of training credit required for a license must be in approved courses, which include the following or their equivalents.Attached Graphic(g) An individual who previously held a Class D license or higher may not apply for a new Class D license if the individual currently operates any activated sludge type facilities, any trickling filter or rotating biological contractor facilities with a permitted daily average flow of 100,000 gallons per day or greater, or any facility that uses a subsurface area drip dispersal system as defined in §222.5 of this title (relating to Definitions) for disposal of its effluent. A trickling filter or rotating biological contractor is a secondary aerobic process that uses microbiological organisms attached to a fixed substrate.</content><note type="source"><p>Source Note: The provisions of this §30.340 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective July 5, 2006, 31 TexReg 5303; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective September 29, 2016, 41 TexReg 7489; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scJ/s30.342"><num value="30.342">§30.342</num><heading>Qualifications for License Renewal</heading><content>(a) To renew a license, an individual must have met the requirements of Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations) and completed a total amount of approved continuing education equal to that of ten hours per year the license is valid. (b) The basic wastewater operation course may not be used to renew a Class B or A license.(c) Class D licenses are not renewable for operators of:(1) any activated sludge type facilities;(2) any trickling filter or rotating biological contractor (RBC) facilities with a permitted daily average flow of 100,000 gallons per day or greater. A trickling filter or RBC facility is a facility that uses secondary aerobic biological processes for treatment of sewage;(3) any facility that uses a subsurface area drip dispersal system as defined in §222.5 of this title (relating to Definitions) for disposal of its effluent.(d) To renew an active converted perpetual license, an individual must have met the requirements of this section, with the exception of the renewal fee.</content><note type="source"><p>Source Note: The provisions of this §30.342 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective July 5, 2006, 31 TexReg 5303; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scJ/s30.344"><num value="30.344">§30.344</num><heading>Provisional Licenses</heading><content>(a) A provisional license for a Class D license may be issued to an individual that does not possess a high school diploma or equivalent and who:(1) has completed the required training;(2) passed the applicable examination; and(3) acts under the direct supervision of a license holder.(b) A provisional license shall have:(1) a validity period of two years; and(2) an application fee of $74.00.(c) Provisional licenses are not renewable and not reobtainable.(d) To continue to work as a licensed operator the provisional license holder must, before the expiration date of the provisional license:(1) submit proof of a high school diploma or equivalent; and(2) apply for a Class D license or higher.</content><note type="source"><p>Source Note: The provisions of this §30.344 adopted to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scJ/s30.346"><num value="30.346">§30.346</num><heading>Qualifications for Initial Registration</heading><content>To obtain a registration, a person must meet the requirements of Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations).</content><note type="source"><p>Source Note: The provisions of this §30.346 adopted to be effective December 17, 2001, 26 TexReg 10330.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scJ/s30.348"><num value="30.348">§30.348</num><heading>Qualifications for Registration Renewal</heading><content>To renew a registration a person must meet the requirements of Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations).</content><note type="source"><p>Source Note: The provisions of this §30.348 adopted to be effective December 17, 2001, 26 TexReg 10330.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scJ/s30.350"><num value="30.350">§30.350</num><heading>Classification of Wastewater Treatment Facilities, Wastewater Collection Systems, and Licenses Required</heading><content>(a) Operators of remote or mobile sludge processing facilities are required to hold a valid Class D or higher license.(b) Operators of domestic wastewater treatment facilities owned and located on industrial sites that are regulated by industrial-type wastewater disposal permits are required to be licensed, only if the point of discharge is separate from any other industrial outfalls and the domestic wastewater is not mixed with other industrial wastewater before discharge.(c) An individual first entering the field of wastewater treatment or collection may be employed as an operator-in-training for a period up to one year. An operator-in-training must perform all process control tasks in the presence of a licensed operator.(d) Each holder of a wastewater disposal permit for a wastewater treatment facility shall employ or contract with one or more licensed wastewater treatment facility operators holding the appropriate level of license or wastewater system operations companies holding a valid registration and employing licensed wastewater treatment facility operators holding the appropriate level of license.(e) Domestic wastewater treatment facilities will be classified in accordance with the following criteria.Attached Graphic(f) Category D wastewater treatment facilities shall be reclassified as Category C facilities if any of the following conditions exist:(1) a Category D facility incorporating anaerobic sludge digestion, except Imhoff tanks with sludge drawn off to drying beds;(2) a Category D facility whose permit requires nutrient reduction; or(3) a Category D facility whose permit requires the final effluent to meet a daily average biochemical oxygen demand5 or total suspended solids concentration less than ten milligrams per liter.(g) A wastewater treatment facility having a combination of treatment processes that are in different categories shall be assigned the higher category.(h) The executive director may increase the treatment facility classification for facilities which include unusually complex processes or present unusual operation or maintenance conditions.(i) The chief operator of each wastewater treatment facility must possess a license equal to or higher than that of the category of treatment facility.(j) Each category of facility must be operated a minimum of five days per week by the licensed chief operator or an operator holding the required level of license or higher. The licensed chief operator or operator holding the required level of license or higher must be available by telephone or pager seven days per week.(k) When shift operation of the wastewater treatment facility is necessary, each shift must be operated by an operator in charge who is licensed at not less than one level below the category of the facility.(l) Either the licensed chief operator or licensed operator in charge must be present for scheduled commission inspections.(m) A licensed wastewater treatment facility operator may perform all duties relating to the operation and maintenance of both wastewater treatment facilities and wastewater collection systems. It is not necessary to hold both types of licenses. A licensed collection system operator may perform only those duties relating to the operation and maintenance of wastewater collection systems.(n) Each classified wastewater collection system must employ at least one licensed operator who holds a license class equal to or higher than that category of system. Wastewater collection system operation and maintenance activities shall be supervised and inspected daily by an on-site licensed wastewater operator. Wastewater collection systems shall be classified as follows.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §30.350 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective July 5, 2006, 31 TexReg 5303; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scJ/s30.355"><num value="30.355">§30.355</num><heading>Additional Requirements for Wastewater Operations Companies</heading><content>(a) When a wastewater operations company submits an application to obtain or renew a registration, it must submit a report to the executive director. For each wastewater treatment facility or wastewater collection system the report shall include: (1) the operations company name, location, and mailing address; (2) the permittee's name and mailing addresses; (3) the commission permit number, if applicable; (4) the dates of operation during the registration validity period; (5) the names and license numbers of all licensed operators employed by the operations company; (6) the name of the licensed chief operator for each facility; and (7) any additional information required by the executive director. (b) A registered wastewater system operations company must apply for a new registration and submit an amended report if the company is bought or sold and the name of the company changes. (c) Wastewater system operations companies shall pay a three year registration fee based on the number of facilities and collection systems served as indicated in the following table. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §30.355 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c30/scK"><num value="K">SUBCHAPTER K</num><heading>PUBLIC WATER SYSTEM OPERATORS AND OPERATIONS COMPANIES</heading><section identifier="/us/state/tx/tac/t30/p1/c30/scK/s30.381"><num value="30.381">§30.381</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to establish qualifications for issuing and renewing licenses and registrations to:(1) public water system operators who perform process control duties in production or distribution of drinking water; and(2) operations companies that operate public water systems on a contractual basis.(b) A person who performs any of the tasks listed in subsection (a) of this section must meet the qualifications of this subchapter and be licensed or registered according to Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations), unless exempt under §30.402 of this title (relating to Exemptions); and must comply with the requirements in Chapter 290 of this title (relating to Public Drinking Water).(c) Public water system operator licenses, certificates of competency, and registrations issued before January 1, 2002, remain in effect until they expire, or are replaced, or revoked by the commission.(d) Renewable Class D licenses, previously issued to individuals who did not possess a high school diploma or equivalent certificate may be renewed according to §30.392 of this title (relating to Qualifications for License Renewal).(e) An individual that is issued a license under this subchapter must perform adequate process control duties as recognized by current best management practices.(f) An individual who has an honorary license shall not perform process control duties in production or distribution of drinking water for a public water system.</content><note type="source"><p>Source Note: The provisions of this §30.381 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scK/s30.387"><num value="30.387">§30.387</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Chief operator--An individual who has overall responsibility for the operation of a public water system.(2) Honorary license--License converted from a perpetual license that has been discontinued by the commission. This honorary license does not award the licensee the authority to perform process control duties in production or distribution of drinking water for public water systems.(3) Military operator-in-training--An individual who is an active duty member of the military of the United States and has successfully completed the Bioenvironmental Engineering Apprentice (BEA) or equivalent military training, as determined by the executive director, and collects microbiological samples and determines disinfection residuals for military facilities' water distribution systems. This individual may not perform any other process control duties in the water distribution or treatment facilities of a military installation. (4) Operator-in-charge--An individual who has overall responsibility for the operation of a public water system in the absence of the chief operator.(5) Operator-in-training--An unlicensed individual entering the field of public water system operation for the first time who has less than one year of experience and is in training to perform process control duties in production or distribution of public drinking water.(6) Public water system operations company--A person or other nongovernmental entity that provides operations services to one or more public water systems on a contractual basis.(7) Public water system operator--Licensed operator who performs process control duties in production or distribution of drinking water.(8) Resiliency continuing education training--Training on one or more resiliency topics that is approved by the executive director to count toward the resiliency training required to renew a license.(9) Resiliency Overview Course--The core training that provides an overview of the resiliency topics outlined by the executive director that can be taken as a stand-alone course or as part of the updated Basic Waterworks Operations core course.(10) Work experience--The actual performance of job tasks in a public water supply system that are considered essential for the treatment or distribution of drinking water.</content><note type="source"><p>Source Note: The provisions of this §30.387 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective December 27, 2012, 37 TexReg 9944; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scK/s30.390"><num value="30.390">§30.390</num><heading>Qualifications for Initial License</heading><content>(a) To obtain a license, an individual must meet the requirements of Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations), and the following requirements for each class of license, and pass an examination.Attached Graphic(b) An individual who applies for a Class C, B, or A license, and relies on a bachelor's or master's degree to meet the educational requirements, must have a bachelor's or master's degree with a major in chemistry, biology, engineering, microbiology, bacteriology, or other similar discipline approved by the executive director.(c) An individual who applies for a Class C or B license must obtain at least one-half of the total work experience requirement in the specific field for the license that is requested:(1) for Class C and B surface water licenses, the experience must be obtained through operations activities at the production or treatment facilities for surface water or groundwater under the direct influence of surface water;(2) for Class C and B groundwater licenses, the experience must be obtained through operations activities at the production or treatment facilities for groundwater source or groundwater under the direct influence of surface water; or(3) for Class C and B distribution licenses, at least one-half of the required experience must be obtained as a result of operations activities at treated water storage, pumping, or distribution facilities; and(4) once the work experience has been met from paragraphs (1), (2), or (3) of this subsection, the executive director may count any remaining experience to meet up to 50% of the remaining requirement.(d) For all classes of licenses, laboratory experience must:(1) be obtained at a laboratory that is owned and operated by the public water system; and(2) involve daily consultation with individuals who perform process control duties in production or distribution of drinking water for the water system.(e) For each license, applicants may substitute either college hours or training credits to meet the experience requirement:(1) 16 semester hours or an additional 20 hours of training credits are equal to six months of the experience;(2) Class C applicants may only substitute up to one year of the required work experience; and(3) Class B and Class A applicants may only substitute up to two years of the required work experience.(f) Training credits must be in approved courses that include the following or equivalent.Attached Graphic(g) An individual who previously held a Class D license or higher shall not apply for a new Class D license if the individual:(1) currently operates facilities at groundwater treatment systems of 250 connections or more;(2) currently operates facilities at groundwater treatment systems serving a population of 750 or more;(3) currently operates facilities at surface water treatment systems;(4) currently operates facilities at groundwater systems under the influence of surface water;(5) performs supervisor, crew chief, or foremen duties for distribution systems that have over 250 connections; or(6) operates multiple groundwater systems and the cumulative number of connections exceeds 250.</content><note type="source"><p>Source Note: The provisions of this §30.390 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective September 29, 2016, 41 TexReg 7489; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scK/s30.392"><num value="30.392">§30.392</num><heading>Qualifications for License Renewal</heading><content>(a) To renew a license, an individual must have met the requirements of Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations) and completed a total amount of approved continuing education equal to that of ten hours per year the license is valid, two of which must qualify as resiliency training for licenses that expire on or after April 1, 2024.(b) The basic water training course shall not be used to renew a Class B or A license.(c) Class D licenses are not renewable for licensed operators:(1) at groundwater treatment systems of 250 connections or more;(2) at groundwater treatment systems serving a population of 750 or more;(3) at surface water treatment systems;(4) at groundwater systems under the influence of surface water;(5) who are supervisors, crew chiefs, or foremen of distribution systems that have over 250 connections; or(6) who operate multiple groundwater systems and the cumulative number of connections exceeds 250.(d) To renew an active converted perpetual license, an individual must have met the requirements of this section, with the exception of the renewal fee.(e) Individuals with a license that expires on or after April 1, 2024, are required to take the Resiliency Overview Course once as part of the continuing education requirement to renew a license.</content><note type="source"><p>Source Note: The provisions of this §30.392 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523; amended to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scK/s30.394"><num value="30.394">§30.394</num><heading>Provisional Licenses</heading><content>(a) A provisional license for a Class D license may be issued to an individual that does not possess a high school diploma or equivalent who:(1) has completed the required training;(2) passed the applicable examination; and(3) acts under the direct supervision of a license holder.(b) A provisional license shall have:(1) a validity period of two years; and(2) an application fee of $74.00.(c) Provisional licenses are not renewable and not reobtainable.(d) To continue to work as a licensed operator, the provisional license holder must, before the expiration date of the provisional license:(1) submit proof of a high school diploma or equivalent; and(2) apply for a Class D license or higher.</content><note type="source"><p>Source Note: The provisions of this §30.394 adopted to be effective March 23, 2025, 50 TexReg 1924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scK/s30.396"><num value="30.396">§30.396</num><heading>Qualifications for Initial Registration</heading><content>To obtain a registration, a person must meet the requirements of Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations).</content><note type="source"><p>Source Note: The provisions of this §30.396 adopted to be effective December 17, 2001, 26 TexReg 10330.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scK/s30.398"><num value="30.398">§30.398</num><heading>Qualifications for Registration Renewal</heading><content>To renew a registration a person must meet the requirements of Subchapter A of this chapter (relating to Administration of Occupational Licenses and Registrations).</content><note type="source"><p>Source Note: The provisions of this §30.398 adopted to be effective December 17, 2001, 26 TexReg 10330.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scK/s30.400"><num value="30.400">§30.400</num><heading>Additional Requirements for Public Water System Operations Companies</heading><content>(a) When a public water system operating company submits an application to obtain or renew a registration, it must submit a report to the executive director. The report shall include: (1) the public water system operating company name, registration number, location, and mailing address; (2) the public water system identification number and name for each system operated; (3) the dates of operation during the reporting period; (4) the names and license numbers of all licensed operators employed by the operations company; (5) the names of the licensed chief operators and licensed supervisors; and (6) any additional information required by the executive director. (b) A person that operates a public water system under contract must apply for a new registration and submit an amended report if a company is bought or sold and the name of the company changes. (c) Public water system operating companies shall submit a registration fee based on the number of public water systems served as indicated in the following table. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §30.400 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scK/s30.402"><num value="30.402">§30.402</num><heading>Exemptions</heading><content>(a) An individual who performs process control duties in production or distribution of drinking water for a transient non-community water system as defined in §290.38 of this title (relating to Definitions), is exempt from the licensing requirements of this subchapter, if the source water for the water system is purchased treated water or groundwater that is not under the direct influence of surface water.(b) An operator-in-training under the direct supervision of a licensed public water system operator is exempt from the licensing requirements of this subchapter.(c) A military operator-in-training under the direct supervision of a licensed public water system operator is exempt from the licensing requirements of this subchapter for the purpose of collecting microbiological samples or determining disinfection residuals at military facilities' water distribution systems. The military operator-in-training is not exempt from the licensing requirements of this subchapter for the purpose of performing any other process control duties in the distribution or treatment facilities of a public water system.(d) An individual who holds a groundwater or surface water license may perform duties relating to the operation and maintenance of drinking water production, purchased water, and water distribution systems and is not required to hold a distribution license.</content><note type="source"><p>Source Note: The provisions of this §30.402 adopted to be effective December 17, 2001, 26 TexReg 10330; amended to be effective December 27, 2012, 37 TexReg 9944; amended to be effective December 9, 2020, 45 TexReg 8775.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c30/scL"><num value="L">SUBCHAPTER L</num><heading>VISIBLE EMISSIONS EVALUATOR TRAINING AND CERTIFICATION</heading><section identifier="/us/state/tx/tac/t30/p1/c30/scL/s30.500"><num value="30.500">§30.500</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to establish standards approved by the executive director to train and certify visible emissions evaluators.(b) Persons who train and certify visible emissions evaluators must meet the qualifications of this subchapter and be approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §30.500 adopted to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scL/s30.501"><num value="30.501">§30.501</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings (unless the context clearly indicates otherwise).(1) Visible emissions evaluator--A person trained and certified in Texas to conduct visible emissions assessments as determined by testing every six months consistent with the United States Environmental Protection Agency's guidance found in 40 Code of Federal Regulations Part 60 Appendix A, Method 9.(2) Visible emissions evaluator course--A training course presented by a qualified training provider that has been approved by the executive director.(3) Visible emissions evaluator training provider--A person that has been approved by the executive director to train and certify visible emission evaluators on both the basic lecture session as well as conduct and perform field training.</content><note type="source"><p>Source Note: The provisions of this §30.501 adopted to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scL/s30.502"><num value="30.502">§30.502</num><heading>Terms for Visible Emission Evaluator Certification</heading><content>All visible emission evaluator certifications are valid for six months from the date of issuance.</content><note type="source"><p>Source Note: The provisions of this §30.502 adopted to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scL/s30.503"><num value="30.503">§30.503</num><heading>Visible Emission Evaluator Course Training Material and Course Approval</heading><content>Applications for new visible emissions evaluator course training material and course approval shall be made in accordance with §30.28 of this title (relating to Approval of Training).</content><note type="source"><p>Source Note: The provisions of this §30.503 adopted to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scL/s30.504"><num value="30.504">§30.504</num><heading>Visible Emission Evaluator Training Provider Approval</heading><content>To obtain approval to train and certify visible emissions evaluators, a person must:(1) submit an application made on a standard form approved by the executive director;(2) submit the appropriate fee; and(3) meet the training criteria approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §30.504 adopted to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scL/s30.505"><num value="30.505">§30.505</num><heading>Requirements for Visible Emission Evaluator Training Providers</heading><content>Visible emission evaluator course training providers shall:(1) train and certify visible emissions evaluators within the State of Texas;(2) provide the executive director with electronic records of training and certifications, in an acceptable format, as approved by the executive director;(3) provide telephone and facsimile numbers to assist customers that may inquire about certification status;(4) respond to inquiries regarding the visible emission evaluator course training and certification program;(5) be responsible for all training and certification materials, equipment, and training locations including, but not limited to classrooms and field sites; and(6) be responsible for issuing certificates.</content><note type="source"><p>Source Note: The provisions of this §30.505 adopted to be effective September 27, 2007, 32 TexReg 6523.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scL/s30.506"><num value="30.506">§30.506</num><heading>Visible Emission Evaluator Training Requirements</heading><content>(a) Visible emission evaluator training providers must:(1) ensure that training meets the general and delivery standards approved by the executive director;(2) follow the criteria and procedures of Method 9 as established by United States Environmental Protection Agency;(3) provide a six to eight hour mandatory lecture session for first time students, and those students desiring to attend the lecture session again as a refresher;(4) present the lecture session to the new students prior to any field training or testing;(5) present the lecture session in a setting that is conducive to learning;(6) use visual aids and handouts to clarify topics that are taught; and(7) provide one proctor for 24 attendees or less, two proctors for 25 to 100 attendees, and an additional proctor for every 50 attendees over 100.(b) Visible emission evaluator training shall include, but is not limited to, the following topics:(1) opacity history to include Ringlemann equivalency;(2) court cases that uphold opacity readings and procedures;(3) applicability of Federal and State Method 9 opacity regulations;(4) Federal and State New Source Performance Standards;(5) Federal and State New Source Review program;(6) State operating permits;(7) State Implementation Plans;(8) scientific principles of opacity;(9) methodology of reading visible emissions, to include, but not limited to:(A) position of sun;(B) multiple stacks;(C) water vapor plumes;(D) slant angle correction;(E) "red sky" concerns;(F) not staring at plume;(G) meteorology;(H) wind direction and speed; and(I) contrasting background;(10) applicability and uses of Method 22, 203A, 203B, and 203C;(11) proper documentation methods using the various field forms; and(12) field testing instructions.(c) The training topics may be modified at the discretion of the executive director.(d) The training provider will issue a certificate of completion to attendees of the lecture session which will contain the training provider's name, title of course (visible emission evaluator course classroom lecture), student's name, location of lecture, and date of lecture.(e) The training provider shall develop and submit for executive director approval an exit questionnaire that shall be administered to the attendees upon completion of the lecture. This questionnaire is for determining the effectiveness of the training session and the ability of the instructor to convey the necessary information. The completed questionnaires shall be kept on file for a minimum of three years and be made available to the agency upon request.</content><note type="source"><p>Source Note: The provisions of this §30.506 adopted to be effective September 27, 2007, 32 TexReg 6523; amended to be effective September 29, 2016, 41 TexReg 7489.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scL/s30.507"><num value="30.507">§30.507</num><heading>Field Training and Testing Requirements</heading><content>(a) Field training shall:(1) provide repetition of any field instructions, given at the lecture session, to those attendees attempting recertification who have not had to attend the lecture;(2) provide familiarization plumes shown before the start of each black portion and each white portion of the field test;(3) provide for completion of one test run for new students prior to taking a test for certification. The training run shall consist of 25 black readings and 25 white readings, and be given exactly as a regular certification test run. The training run cannot be accepted from the new student as certification, even if the score is within the passing parameters. This training run will be kept on file for three years; and(4) allow attendees that are attempting recertification to take the training run described above before certification.(b) Field testing shall include:(1) a complete run which consists of 50 contiguous plumes;(2) a random order of opacity from 0% to 100%;(3) avoidance of adverse weather; i.e., drizzle, rain, fog, or high winds; and(4) a certificate issued to those students that successfully pass the test that contains the name of the provider, title of certification (to include a term similar to "visible emissions evaluator"), the name of the student, and the date of successful certification. The provider shall number each certificate so that each certificate is unique and not duplicated.</content><note type="source"><p>Source Note: The provisions of this §30.507 adopted to be effective September 27, 2007, 32 TexReg 6523; amended to be effective September 29, 2016, 41 TexReg 7489.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c30/scL/s30.508"><num value="30.508">§30.508</num><heading>Disapproval of Visible Emissions Evaluator Course Training</heading><content>(a) The executive director may return without approval, visible emissions evaluator training courses and training material that is determined to contain errors.(b) The executive director may rescind or deny training approval for good cause, to include, but not be limited to:(1) training that does not conform to current technical standards or rules;(2) training that does not conform to the materials as approved;(3) subject matter that is not related to job tasks performed by licensees;(4) an instructor not qualified to teach the subject matter;(5) an instructor that is ineffective in the delivery of the subject matter;(6) an instructor that promotes or endorses products, product lines, or services from one manufacturer, distributor, or service provider;(7) participation records or other records that are false or untimely submitted; or(8) the training provider's noncompliance with a training recall.(c) The executive director may recall previously approved training for reevaluation and rescind the approval of the training if the training does not meet standards.</content><note type="source"><p>Source Note: The provisions of this §30.508 adopted to be effective September 27, 2007, 32 TexReg 6523.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c33"><num value="33">CHAPTER 33</num><heading>CONSOLIDATED PERMIT PROCESSING</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c33/scA"><num value="A">SUBCHAPTER A</num><heading>PURPOSE AND APPLICABILITY</heading><section identifier="/us/state/tx/tac/t30/p1/c33/scA/s33.1"><num value="33.1">§33.1</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this chapter is to implement the commission's authority under Texas Water Code, Chapter 5, Subchapter J, to conduct coordinated permit processing and issue one consolidated permit.(b) This chapter applies to any plant, facility, unit, or site that is required to have more than one permit issued by the commission and that files applications with the commission under Texas Water Code, Chapter 5, Subchapter J. This chapter sets forth the standards and requirements for applications and actions concerning consolidated permits and amendments, modifications, renewals, transfers, corrections, revocations, and suspensions of those permits.(c) A federal operating permit governed by the requirements of Texas Health and Safety Code, §§382.054-382.0543, may not be consolidated with other permits under this chapter.</content><note type="source"><p>Source Note: The provisions of this §33.1 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scA/s33.3"><num value="33.3">§33.3</num><heading>Definitions</heading><content>The following terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.(1) Consolidated permit--A permit issued under Texas Water Code, Chapter 5, Subchapter J, and this chapter, and that contains authorizations for activities in more than one program.(2) Component authorization--An authorization within a consolidated permit that would normally be issued as an individual authorization under the requirements of applicable law governing operations at a facility, plant, or site.</content><note type="source"><p>Source Note: The provisions of this §33.3 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c33/scB"><num value="B">SUBCHAPTER B</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c33/scB/s33.11"><num value="33.11">§33.11</num><heading>Issuance of Consolidated Permit</heading><content>(a) If a plant, facility, unit, or site is required to have more than one permit issued by the commission, and the applications for all permits are filed within a 30-day period, the commission, on request of the applicant, shall conduct coordinated application reviews and one hearing on all permits requested to be consolidated by the applicant. The commission may issue one consolidated permit, or issue separate permits after consolidated processing under this chapter.(b) The commission shall issue one consolidated permit upon request of an applicant meeting the requirements of this chapter.</content><note type="source"><p>Source Note: The provisions of this §33.11 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scB/s33.13"><num value="33.13">§33.13</num><heading>Applications for Consolidated Permits</heading><content>An applicant shall use existing applications required under commission rules for all of the authorizations sought in the consolidated permit.</content><note type="source"><p>Source Note: The provisions of this §33.13 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scB/s33.15"><num value="33.15">§33.15</num><heading>Fees for Consolidated Permit Processing</heading><content>A fee for a consolidated permit shall be equal to the sum of the fees that would be required if each application for a requested authorization was processed separately. The executive director may reduce the fee for a consolidated permit if he finds that consolidated processing of an application will result in savings to the agency.</content><note type="source"><p>Source Note: The provisions of this §33.15 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scB/s33.17"><num value="33.17">§33.17</num><heading>Public Notice</heading><content>(a) As provided by Chapter 39, Subchapter G of this title (relating to Public Notice for Applications for Consolidated Permits), all notice requirements that apply to each separate authorization must be satisfied when an applicant requests combined public notices of consolidated permits.(b) If an applicant is required to mail notice under Chapter 39 of this title (relating to Public Notice), Chapter 305 of this title (relating to Consolidated Permits), or Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), for any part of a consolidated public notice, the applicant shall fulfill those mailed notice requirements.</content><note type="source"><p>Source Note: The provisions of this §33.17 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scB/s33.19"><num value="33.19">§33.19</num><heading>Renewal of Consolidated Permits</heading><content>(a) The renewal period for a consolidated permit is the shortest term set by any state or federal statute or rule governing one or more of the authorizations in the consolidated permit.(b) A consolidated permit may be renewed as a consolidated permit; or may be separated at the request of the applicant and the applications processed separately. Consolidated permits shall be subject to the renewal requirements of applicable laws and commission rules governing operations at the facility, plant, or site.(c) A permit issued before and effective on September 1, 1997, that authorizes more than one permit program, may be renewed under rules applicable to that existing permit, as a consolidated permit, or, upon request of the applicant, may be separated by programs and the permits processed separately.(d) An applicant shall submit permit renewal applications in a timely fashion, as required in commission rules. Failure to submit permit renewal applications in a timely fashion shall cause a consolidated permit to expire in its entirety.(e) If a component authorization has been separated from a consolidated permit when amended, transferred, or modified, as provided by this chapter, it may be renewed for the full term provided by applicable law governing that authorization.</content><note type="source"><p>Source Note: The provisions of this §33.19 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scB/s33.21"><num value="33.21">§33.21</num><heading>Amendment of a Consolidated Permit</heading><content>(a) A consolidated permit, or a permit issued before and effective on September 1, 1997, that authorizes more than one permit program, may be amended as a consolidated permit or, upon request of an applicant, separated by program and the permits processed separately. A component authorization that is separated from a consolidated permit for amendment shall retain the same term as the consolidated permit, unless the applicant requests a change in the term as part of a major amendment.(b) A consolidated permit shall be amended under all applicable commission rules concerning amendments for the programs in the consolidated permit.</content><note type="source"><p>Source Note: The provisions of this §33.21 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scB/s33.23"><num value="33.23">§33.23</num><heading>Transfer of a Consolidated Permit</heading><content>(a) A consolidated permit may be transferred as a consolidated permit or, upon request of the applicant, separated for the purposes of transferring authorizations. A component authorization that is separated from a consolidated permit for transfer shall retain the same term as the consolidated permit.(b) A consolidated permit, or any of its component authorizations, shall be transferred under all applicable transfer rules required for the programs in the consolidated permit.</content><note type="source"><p>Source Note: The provisions of this §33.23 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scB/s33.25"><num value="33.25">§33.25</num><heading>Correction of a Consolidated Permit</heading><content>A consolidated permit, or a component authorization of that permit, shall be corrected under §50.145 of this title (relating to Corrections to Permits).</content><note type="source"><p>Source Note: The provisions of this §33.25 adopted to be effective December 10, 1998, 23 TexReg 12406; amended to be effective May 14, 2020, 45 Texeg 3054.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scB/s33.27"><num value="33.27">§33.27</num><heading>Consolidated Permit Denial, Suspension, and Revocation</heading><content>A consolidated permit, or any component authorization of that permit, shall be denied, suspended, or revoked under all applicable rules required for the programs in the consolidated permit.</content><note type="source"><p>Source Note: The provisions of this §33.27 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scB/s33.29"><num value="33.29">§33.29</num><heading>Modification of a Consolidated Permit</heading><content>(a) A consolidated permit, or any component authorization of that permit, shall be modified under all applicable rules required for the programs in the consolidated permit. A component authorization that is separated from a consolidated permit for modification shall retain the same term as the consolidated permit.(b) A permit issued before and effective on September 1, 1997, that authorizes more than one permit program, shall be modified under rules applicable to that existing permit.</content><note type="source"><p>Source Note: The provisions of this §33.29 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scB/s33.31"><num value="33.31">§33.31</num><heading>Emergency or Temporary Orders</heading><content>An emergency or temporary order concerning a consolidated permit shall be issued under Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions).</content><note type="source"><p>Source Note: The provisions of this §33.31 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c33/scC"><num value="C">SUBCHAPTER C</num><heading>CONSOLIDATED PERMIT PROCESSING</heading><section identifier="/us/state/tx/tac/t30/p1/c33/scC/s33.41"><num value="33.41">§33.41</num><heading>Pre-submittal Conference</heading><content>An applicant considering the submission of applications for coordinated reviews and one hearing, or for a consolidated permit, may request a pre-submittal conference to determine, at a minimum, the types of permits to be consolidated, timelines for the submission of applications, and notice and hearing requirements. A request for a pre-submittal conference may be made to the executive director.</content><note type="source"><p>Source Note: The provisions of this §33.41 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scC/s33.43"><num value="33.43">§33.43</num><heading>Intent To File Applications for Consolidated Permit Processing and a Consolidated Permit</heading><content>(a) An applicant shall notify the commission of the intent to request consolidated permit processing or a consolidated permit by submitting a letter of intent to the executive director. The letter of intent must contain at least the following:(1) the applicant's name;(2) the applicant's address;(3) the location of the facility;(4) the number and types of authorizations to be consolidated;(5) the types of notices the applicant wishes to combine; and(6) the beginning and ending date of the time period, not to exceed 30 days, during which the applicant will submit all applications intended for consolidation.(b) All applications received by the executive director will be held and not processed until the ending date identified by the applicant under subsection (a)(6) of this section. This does not exempt the applicant from the timely submittal of permit renewal applications as required in Chapter 305, Subchapter D of this title (relating to Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits), or Chapter 336 of this title (relating to Radiation Rules). All applications received by that date are deemed as officially received on that date by the executive director for the purpose of processing the applications.(c) If an applicant has not submitted all of the applications by the deadline specified in subsection (a)(6) of this section, the executive director shall return all of the applications to the applicant unless the applicant has amended its letter of intent. The letter of intent may be amended by submitting a revised letter of intent to the executive director. Renewal applications will not be returned, but shall be processed separately.</content><note type="source"><p>Source Note: The provisions of this §33.43 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scC/s33.45"><num value="33.45">§33.45</num><heading>Separation by Executive Director</heading><content>(a) The executive director may require separate processing of consolidated applications, or may return one or more applications, if the executive director determines:(1) that the applicant has submitted an incomplete application; or(2) if the applicant does not respond as requested to notices of deficiency.(b) The executive director shall notify the applicant of any decision concerning applications under this section. This notice shall include the reasons for the executive director's decision on the applications.</content><note type="source"><p>Source Note: The provisions of this §33.45 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scC/s33.47"><num value="33.47">§33.47</num><heading>Request for Separate Processing Before Public Notice of Opportunity To Request a Hearing</heading><content>(a) An applicant may request that consolidated applications be processed separately at any time before mailing or publishing any public notice of the opportunity to request a hearing.(b) Requests shall be filed with the executive director in a timely fashion and include at least the applicant's name and a list of the applications to be separated.</content><note type="source"><p>Source Note: The provisions of this §33.47 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scC/s33.49"><num value="33.49">§33.49</num><heading>Separate Processing After Notice of Opportunity To Request a Hearing and Before Referral to SOAH</heading><content>(a) The executive director may separate the applications for processing at any time after the issuance of any notice of opportunity to request a hearing, but before referral of the matter to SOAH, upon demonstration of good cause by the applicant. For purposes of this section, good cause includes, but is not limited to:(1) a change in the statutory or regulatory requirements governing a permit; or(2) a substantial change in the factual circumstances surrounding the applications for permits.(b) An applicant shall file the request for separate processing with the executive director and provide copies to affected program offices. The request shall include the following:(1) the applicant's name;(2) a list of the applications to be separated; and(3) the demonstration of good cause.(c) Upon determination by the executive director that there is good cause for the separate processing of permit applications, the chief clerk shall notify anyone who submitted comment or a hearing request on any combined notice of the executive director's decision. The applicant shall re-notice the separate applications in accordance with applicable commission notice requirements.(d) Any hearing requests received on the consolidated applications before the applicant requested separate processing shall be held by the chief clerk. The chief clerk shall process those requests along with all additional comments and hearing requests received for each of the separate applications after those applications are re-noticed under subsection (c) of this section.</content><note type="source"><p>Source Note: The provisions of this §33.49 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c33/scC/s33.51"><num value="33.51">§33.51</num><heading>Separate Processing After Referral to SOAH</heading><content>An applicant may have applications processed separately after an application has been referred to SOAH. An applicant shall show compliance with §80.25 of this title (relating to Withdrawing the Application) in order to have the applications processed separately.</content><note type="source"><p>Source Note: The provisions of this §33.51 adopted to be effective December 10, 1998, 23 TexReg 12406.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c35"><num value="35">CHAPTER 35</num><heading>EMERGENCY AND TEMPORARY ORDERS AND PERMITS; TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITIONS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c35/scA"><num value="A">SUBCHAPTER A</num><heading>PURPOSE, APPLICABILITY, AND DEFINITIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c35/scA/s35.1"><num value="35.1">§35.1</num><heading>Purpose</heading><content>The purpose of this chapter is to implement the commission's authority under Texas Water Code, Chapter 5, Subchapter L, to issue temporary or emergency mandatory, permissive, or prohibitory orders and by those orders to issue temporary permits or temporarily suspend or amend permit conditions.</content><note type="source"><p>Source Note: The provisions of this §35.1 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scA/s35.2"><num value="35.2">§35.2</num><heading>Applicability</heading><content>This chapter applies to any application under Texas Water Code, Chapter 5, Subchapter L, to issue temporary or emergency mandatory, permissive, or prohibitory orders.</content><note type="source"><p>Source Note: The provisions of this §35.2 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scA/s35.3"><num value="35.3">§35.3</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Emergency order--An order which must be issued immediately, in order to protect human health or safety or the environment, or for other reasons specified by statute. Specific requirements for an emergency order are specified in the rules in this chapter relating to each program.(2) Severe property damage--Substantial physical damage to property, damage to treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a discharge. Severe property damage does not mean economic loss caused by delays in production.(3) Temporary order--An order of short duration which must be issued as quickly as possible or which might allow an authorization for a short term activity, setting conditions and limitations that will adequately protect human health or safety or the environment, or for the reasons specified in §35.302 of this title (relating to Application for Emergency and Temporary Orders to Discharge). Specific requirements for a temporary order are specified in the rules in this chapter relating to each program.</content><note type="source"><p>Source Note: The provisions of this §35.3 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c35/scB"><num value="B">SUBCHAPTER B</num><heading>AUTHORITY OF EXECUTIVE DIRECTOR</heading><section identifier="/us/state/tx/tac/t30/p1/c35/scB/s35.11"><num value="35.11">§35.11</num><heading>Purpose and Applicability</heading><content>The purpose of this subchapter is to delegate authority to the executive director and to specify applications for emergency orders on which the executive director may take action on behalf of the commission under this chapter.</content><note type="source"><p>Source Note: The provisions of this §35.11 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scB/s35.12"><num value="35.12">§35.12</num><heading>Authority of Executive Director</heading><content>(a) The executive director may receive applications and issue emergency orders under this chapter. If an emergency order is issued without notice and a hearing, notice shall be issued and a hearing by the commission to affirm, modify, or set aside shall be set. If a hearing request is received, and the commission grants the request, the commission shall either hold a contested case hearing, or remand the case to SOAH.(b) The executive director may authorize, in writing, a representative or representatives to act on the executive director's behalf under this chapter.</content><note type="source"><p>Source Note: The provisions of this §35.12 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scB/s35.13"><num value="35.13">§35.13</num><heading>Eligibility of Executive Director</heading><content>Upon assumption of national pollutant discharge elimination system permit authority, the executive director, or the executive director's representative or representatives, may act under this chapter on Texas pollutant discharge elimination system (TPDES) permits or other TPDES-related approvals only if he or she meets the qualifications set out for the executive director in §50.141 of this title (relating to Eligibility of Executive Director).</content><note type="source"><p>Source Note: The provisions of this §35.13 adopted to be effective December 10, 1998, 23 TexReg 12413; amended to be effective May 14, 2020, 45 TexReg 3055.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c35/scC"><num value="C">SUBCHAPTER C</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c35/scC/s35.21"><num value="35.21">§35.21</num><heading>Action by Commission or Executive Director</heading><content>For the purposes of, and in the manner provided by this chapter, the commission may issue a temporary order; and the commission or the executive director may issue an emergency, mandatory, permissive, or prohibitory order; and the commission by temporary order, or the executive director or commission by emergency order, may:(1) issue a temporary permit; or(2) temporarily suspend or amend a permit condition.</content><note type="source"><p>Source Note: The provisions of this §35.21 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scC/s35.22"><num value="35.22">§35.22</num><heading>Term and Renewal of Orders</heading><content>Unless otherwise provided by this chapter, an emergency order issued under this chapter is limited to a reasonable time specified by the order, which may not exceed 180 days and may be renewed once for an additional period not to exceed 180 days by submittal of a new application. A temporary order must be limited to a reasonable time specified by the order.</content><note type="source"><p>Source Note: The provisions of this §35.22 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scC/s35.23"><num value="35.23">§35.23</num><heading>Effect of Orders</heading><content>An emergency or temporary order issued under this chapter does not vest any rights in the permit holder or recipient and expires in accordance with its terms.</content><note type="source"><p>Source Note: The provisions of this §35.23 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scC/s35.24"><num value="35.24">§35.24</num><heading>Application for Emergency or Temporary Order</heading><content>(a) A person wanting an emergency or temporary order under this chapter shall submit a written application to the chief clerk. Unless the person submitting the application is the executive director or the executive director's representative, the application must be sworn.(b) If a person seeks an emergency or temporary order for a bypass of untreated or partially treated wastewater, as that term is defined in §305.2 of this title (relating to Definitions), from a facility that is subject to a Texas pollutant discharge elimination system permit, the filing of the application for an emergency or temporary order constitutes prior notice of an anticipated bypass. Filing of the application for bypass shall be done, if possible, at least ten days before the date of the bypass. The person must comply with all bypass requirements under §305.535 of this title (relating to Bypasses from TPDES Permitted Facilities).(c) The application must:(1) state the name, address, and telephone number of the applicant, the person submitting the application on the applicant's behalf, and the person signing the application on the applicant's behalf;(2) contain information sufficient to identify the facility and location to be affected by the order;(3) describe the condition of emergency or other condition justifying the issuance of the order;(4) allege facts to support any findings required under this chapter;(5) estimate the dates on which the proposed order should begin and end and the dates on which the activity proposed to be allowed, mandated, or prohibited should begin and end;(6) describe the action sought and the activity proposed to be allowed, mandated, or prohibited;(7) include any other statement or information required by this chapter; and(8) be accompanied by payment of any application fees required by the commission.(d) A copy of the application must be provided to the division director of the appropriate program on behalf of the executive director, and to the public interest counsel, at the same time it is filed with the chief clerk. The division director may designate another representative of the executive director for this service.(e) All applications shall be signed as follows.(1) For a corporation, the application shall be signed by a responsible corporate officer. For purposes of this paragraph, a responsible corporate officer means a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation; or the manager of one or more manufacturing, production, or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million (in second-quarter 1980 dollars), if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures. Corporate procedures governing authority to sign permit applications may provide for assignment or delegation to applicable corporate positions rather than to specific individuals. Documentation of authority to sign must be provided with the application.(2) For a partnership or sole proprietorship, the application shall be signed by a general partner or the proprietor, respectively.(3) For a municipality, state, federal, or other public agency, the application shall be signed by either a principal executive officer or a ranking elected official. For purposes of this paragraph, a principal executive officer of a federal agency includes the chief executive officer of the agency, or a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., regional administrator of the United States Environmental Protection Agency).(4) For the executive director, the application shall be signed by the executive director or any duly authorized representative.(5) A person other than the executive director or the executive director's representative signing an application shall make the following certification: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."(6) For hazardous solid waste applications, the owner and operator of a facility must sign the application.(7) For radioactive material license applications under Chapter 336 of this title (relating to Radioactive Substance Rules), the applicant or person duly authorized to act for and on the applicant's behalf must sign the application.</content><note type="source"><p>Source Note: The provisions of this §35.24 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scC/s35.25"><num value="35.25">§35.25</num><heading>Notice and Opportunity for Hearing</heading><content>(a) An emergency order under this chapter may be issued with notice and an opportunity for hearing, or without notice and an opportunity for hearing, as provided by this chapter.(b) If an emergency order is issued under this chapter without a hearing, the order shall set a time and place for a hearing to affirm, modify, or set aside the order to be held before the commission or its designee as soon as practicable after the order is issued.(c) Except as otherwise provided by this chapter, notice of a hearing to affirm, modify, or set aside an emergency order under this chapter shall be given not later than the tenth day before the date set for the hearing. This notice shall provide that an affected person may request an evidentiary hearing on issuance of the emergency order.(d) Temporary orders require a hearing before the issuance of the order. Notice of a hearing on a temporary order shall be given not later than the 20th day before the hearing on the order. This notice of hearing shall provide that an affected person may request an evidentiary hearing on issuance of the temporary order.(e) In addition to the notice requirements provided elsewhere in these rules, notice shall be provided as follows.(1) For water quality temporary orders, notice of a hearing that is held before issuance of the order shall be provided:(A) by mail to persons requesting public notice of certain applications, in accordance with §39.407 of this title (relating to Mailing Lists) and to persons or agencies identified in §39.413 of this title (relating to Mailed Notice);(B) by publication by the applicant in a newspaper of largest general circulation that is published in the county in which the facility is located or proposed to be located. If a newspaper is not published in the county in which the facility is located or proposed to be located, the notice must be published in the newspaper of general circulation in the county in which the facility is located or proposed to be located. The applicant must file an affidavit with the chief clerk certifying facts that constitute compliance with the publication requirements. The deadline to file the affidavit is 15 days after publication of the notice. Filing an affidavit certifying facts that constitute compliance with notice requirements creates a rebuttable presumption of compliance with the requirement to publish notice; and(C) at least 20 days before the hearing.(2) For water quality emergency orders, notice of the issuance of the order and the hearing to affirm, set aside, or modify if a hearing is held shall be provided in accordance with paragraph (1)(A) and (C) of this subsection.(3) For nonhazardous underground injection control (UIC) emergency orders, notice shall be mailed and published at least 30 days before the hearing to affirm, modify, or set aside the emergency order, as is required by Chapter 39 of this title (relating to Public Notice) for notice of a hearing on an application for a UIC permit.(4) For nonhazardous solid waste emergency orders, notice shall be mailed and published not later than the tenth day before the hearing to affirm, modify, or set aside the emergency order, as is required by Chapter 39 of this title for notice of a hearing on an application for a nonhazardous waste permit.(5) For hazardous solid waste emergency orders, including UIC emergency orders, notice shall be mailed and published at least 30 days before the hearing to affirm, modify, or set aside the emergency order, as required by Chapter 39 of this title for notice of a hearing on an application for a hazardous waste permit. The commission must also give at least 45 days for public comment before issuing the order.(6) For suspension of beneficial inflows under Texas Water Code, §11.148, notice shall be published in a newspaper or newspapers of general circulation in the affected area not later than the 15th day before the hearing to all affected persons.(7) For water utility emergency orders for operation of a utility, notice shall be mailed or hand delivered to the utility not later than the tenth day before the hearing to affirm modify or set aside.(8) For water utility temporary rate increase orders, notice shall be mailed or delivered to the affected ratepayers not later than the tenth day before the hearing to affirm, modify, or set aside.(9) For air catastrophe emergency orders, notice shall be published in a newspaper of general circulation in the nearest municipality not later than the tenth day before the hearing.(10) For generalized condition of air pollution emergency orders, the timing, method, and recipients of notice shall be as practicable under the circumstances.(11) For radioactive substances emergency orders, notice shall be provided by personal service or certified mail to those named in the order not later than the tenth day before the hearing to affirm, modify, or set aside.(12) For radioactive material impoundment, notice shall be provided by personal service or certified mail to those named in the order not later than the tenth day before the hearing to affirm, modify, or set aside.(13) For petroleum storage tank emergency orders, notice shall be provided by certified mail, hand delivery, or if that fails, one time in the Texas Register or published once in the county newspaper not later than the tenth day before the hearing to affirm, modify, or set aside.(14) For imminent and substantial endangerment emergency orders, notice shall be given by certified mail for hand delivery to the person named in the order, and if that fails, published once in the Texas Register and once in the newspaper of general circulation not later than the tenth day before the hearing to affirm, modify, or set aside.(15) For on-site sewage and disposal system emergency orders, notice shall be mailed to those in the order not later than ten days before the hearing to affirm, modify, or set aside.(f) Statutes or rules requiring notice of hearing or setting procedures for the issuance of permits do not apply to a hearing on an emergency order issued under this chapter unless they specifically require notice for an emergency order.(g) If the commission acts on an application for a temporary order, or the commission or executive director acts on an application for an emergency order, the chief clerk or the office designated by the executive director shall mail notice of the action to the applicant, the executive director, public interest counsel, and other persons who have filed hearing requests or public comment.</content><note type="source"><p>Source Note: The provisions of this §35.25 adopted to be effective December 10, 1998, 23 TexReg 12413; amended to be effective May 14, 2020, 45 TexReg 3055.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scC/s35.26"><num value="35.26">§35.26</num><heading>Contents of Emergency or Temporary Order</heading><content>An emergency or temporary order issued under this chapter shall contain at least the following:(1) the name and address of the applicant and information sufficient to identify the facility or location affected by the order;(2) a description of the condition of emergency or other condition justifying the issuance of the order;(3) any findings of facts required under this chapter;(4) a statement of the term of the order, including the dates on which it shall begin and end and the dates on which the activity proposed to be allowed, mandated, or prohibited shall begin and end;(5) a description of the action sought and the activity proposed to be allowed, mandated, or prohibited;(6) if the order was issued without a hearing, a statement to that effect and a provision setting a time and place for a hearing before the commission or its designee; and(7) any other statement or information required by this chapter.</content><note type="source"><p>Source Note: The provisions of this §35.26 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scC/s35.27"><num value="35.27">§35.27</num><heading>Hearing Required</heading><content>A hearing shall be held before the issuance of each temporary order and either before or after the issuance of each emergency order. If no hearing is held before the issuance of an emergency order, a hearing to affirm, modify, or set aside the order shall be held before the commission or its designee as soon as practicable after the order is issued.</content><note type="source"><p>Source Note: The provisions of this §35.27 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scC/s35.28"><num value="35.28">§35.28</num><heading>Hearing Requests</heading><content>(a) The executive director, the applicant, or an affected person as defined by Texas Water Code, §5.115(a) may request a contested case hearing.(b) The commission is not required to hold a hearing if it determines that the basis of a person's request for a hearing as an affected person is not reasonable or is not supported by competent evidence.(c) All relevant factors shall be considered in the evaluation of a person's request for a hearing as an affected person, including, but not limited to, the following:(1) whether the interest claimed is one protected by the law under which the application will be considered;(2) distance restrictions or other limitations imposed by law on the affected interest;(3) whether a reasonable relationship exists between the interest claimed and the activity regulated;(4) likely impact of the regulated activity on the health, safety, and use of property of the person;(5) likely impact of the regulated activity on use of the impacted natural resource by the person; and(6) for governmental entities, their statutory authority over or interest in the issues relevant to the application.(d) A group or association may request a contested case hearing only if the group or association meets all of the following requirements:(1) one or more members of the group or association would otherwise have standing to request a hearing in their own right;(2) the interests the group or association seeks to protect are germane to the organization's purpose; and(3) neither the claim asserted nor the relief requested requires the participation of the individual members in the case.</content><note type="source"><p>Source Note: The provisions of this §35.28 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scC/s35.29"><num value="35.29">§35.29</num><heading>Procedures for a Hearing</heading><content>(a) Hearings before the commission under this chapter shall be conducted in accordance with Chapter 10 of this title (relating to Commission Meetings). Contested case hearings shall be conducted under the Texas Administrative Procedure Act (APA) and Chapter 80 of this title (relating to Contested Case Hearings).(b) If a contested case hearing is requested on the application, and the commission grants the request, the commission shall either conduct the contested case hearing or remand the matter to the State Office of Administrative Hearings (SOAH).(c) The commission or judge may, consistent with the requirements of the APA, reduce the time periods specified in the commission's rules governing contested case hearings.(d) For any hearing on a temporary or emergency order, the following procedures will apply:(1) parties will be designated by the commission or judge. To be designated as a party, the person seeking party status must show a justiciable interest. For each hearing under this section, the applicant, the public interest counsel, and the executive director are parties by rule;(2) the testimony of all witnesses will be under oath, with an opportunity for questioning by the commission or judge and cross-examination by the other parties;(3) other parties to the hearing will be given an opportunity to present rebuttal evidence and testimony;(4) the applicant will have the burden of proving its need for an emergency or temporary order, and will have the right to open and close the evidentiary parts of the hearing. The fact that an emergency order was issued without a hearing, standing alone, will not constitute evidence of the need for such authorization; and(5) the commission or judge will have the right to limit the number of witnesses; to limit the time for direct questioning or cross-examination of a witness; to refuse illustrative and documentary evidence; and to limit argument.(e) If a hearing request is denied, the procedures contained in §80.272 and §80.273 of this title (relating to Motion for Rehearing; and Decision Final and Appealable) apply.</content><note type="source"><p>Source Note: The provisions of this §35.29 adopted to be effective December 10, 1998, 23 TexReg 12413; amended to be effective March 24, 2016, 41 TexReg 2173.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scC/s35.30"><num value="35.30">§35.30</num><heading>Application Fees</heading><content>The application fee for an emergency or temporary order under this chapter is $500 plus the actual cost of the required notice. The fee is payable at the time the application is filed, and is not refundable.</content><note type="source"><p>Source Note: The provisions of this §35.30 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c35/scD"><num value="D">SUBCHAPTER D</num><heading>EMERGENCY SUSPENSION OF BENEFICIAL INFLOWS</heading><section identifier="/us/state/tx/tac/t30/p1/c35/scD/s35.101"><num value="35.101">§35.101</num><heading>Emergency Suspension of Permit Conditions Relating to, and Emergency Authority to Make Available Water Set Aside for, Beneficial Inflows to Affected Bays and Estuaries and Instream Uses</heading><content>(a) The purpose of this section is to set forth the procedures and criteria to be used by the commission or the executive director in its review and action on an application by a water right holder either for the temporary suspension of conditions in the water right relating to beneficial inflows to bays and estuaries and instream uses during an emergency, or to make state water temporarily available that is set aside by the commission to meet the needs for freshwater inflows to affected bays and estuaries and instream uses, under Texas Water Code, §5.506 and §11.148. The emergency relief provided by this section shall only be used when the commission or executive director finds that:(1) emergency conditions exist that present an imminent threat to the public health, safety, and welfare and that:(A) override the necessity to comply with general procedures and criteria for changing the conditions in a water right; or(B) override the need to maintain the balance between protecting environmental flow needs and other public interests and relevant factors; and(2) there are no feasible, practicable alternatives to the emergency authorization.(b) The commission or executive director may approve an application filed by the affected water right holder for the temporary suspension of all or a part of conditions in a water right relating to beneficial inflows to affected bays and estuaries and instream uses, or to make state water temporarily available that is set aside by the commission to meet the needs for freshwater inflows to affected bays and estuaries and instream uses, if the commission or executive director finds that an emergency exists and there is no feasible, practicable alternative to the suspension. The burden of demonstrating that the application should be granted in accordance with this section is on the applicant. For purposes of this section, an emergency is a condition where water supplies available to the applicant have been reduced or impaired to such an extent that an imminent peril to the public health, safety, or welfare exists. This condition may include, but not be limited to:(1) the reduction of public water supplies to critical levels as a result of a severe and sustained drought;(2) the failure of a dam for a public water supply reservoir;(3) the significant contamination of a public water supply; or(4) the failure or destruction of public water supply pipelines or other distribution systems.(c) The application shall be filed in accordance with and must contain the information required by §35.24 of this title (relating to Application for Emergency or Temporary Order), and the following:(1) copies of the affected permits, certificates of adjudication, or certified filings;(2) a description of the emergency's impact on public health, safety, and welfare;(3) a description of all existing and potential water supplies available to the applicant and their corresponding uses and costs;(4) a summary of the examination made by the applicant of whether feasible, practicable alternatives exist to the suspension of permit conditions and reasons why those alternatives do not exist;(5) the amount of water over and above available supplies that is necessary to alleviate emergency conditions;(6) copies of the water right holder's water conservation and drought contingency plans, if any, and a summary of their status and implementation, including the reasons why any remaining conservation or drought contingency measures provided by the plans have not or will not be implemented;(7) a copy of the reservoir operating procedures, if applicable; and(8) the proposed conditions and trigger levels for the suspension and reinstatement of the releases or other affected permit conditions.(d) A copy of the application must be filed by the applicant with the Texas Parks and Wildlife Department (TPWD) at the same time it is filed with the chief clerk.(e) For applications considered by the commission, upon receipt of the application, the chief clerk shall provide notice of the time and location of the commission's consideration of the application to the TPWD, executive director, and public interest counsel as soon as practicable after receipt of the application, but in no event shall the petition be considered less than 72 hours after receipt of notice by the TPWD. For applications considered by the executive director, upon receipt of the application, the chief clerk shall provide notice of the date of the executive director's consideration to the TPWD and public interest counsel as soon as practicable after receipt of the application, but in no event shall the petition be considered less than 72 hours after receipt of notice by the TPWD.(f) The TPWD, executive director, and public interest counsel shall be provided an opportunity to submit comments on the application before the commission action. The applicant shall be afforded opportunity to respond to all comments at the time of the commission's or executive director's consideration of the matter.(g) The commission's or executive director's order shall set out the extent of any suspension, any special condition upon which a suspension is granted, or the amount of any set aside made temporarily available. The commission's initial order may also indicate the referral of the matter to State Office of Administrative Hearings for an expedited hearing under subsection (i) of this section.(h) Published notice of the initial action, if granted, shall be provided and paid for by the applicant immediately following a favorable commission or executive director initial decision by publication in a newspaper or newspapers of general circulation in the affected area. The published notice may not be smaller than 96.8 square centimeters or 15 square inches with the shortest dimension at least 7.6 centimeters or three inches. Such published notice must contain a summary of the information contained in the application as provided by subsection (c) of this section and the time and location of the subsequent commission hearing provided by subsection (i) of this section. Such publication shall occur not later than seven calendar days before this hearing. For the purposes of this rule, the affected area shall be each county, in whole or in part, downstream of the diversion point or impoundment authorized under the affected water right. The applicant shall file with the chief clerk a publisher's affidavit as proof that such notice was published in accordance with this subsection.(i) If the commission or executive director initially grants an emergency suspension of permit conditions, or a temporary authorization, without a hearing, the commission shall hold the hearing required by §35.25 of this title (relating to Notice and Opportunity for Hearing) as soon as practicable, but in no event later than 15 days after the initial emergency suspension is granted to determine whether to affirm, modify, or set aside the initial emergency action. Written notice of the hearing shall be provided to the TPWD and affected persons not later than ten days before the hearing.(j) An emergency order, or temporary authorization, granted under this section may be for a period of not more than 120 days if the commission finds that emergency conditions exist that present an imminent threat to public health, safety, and welfare and that override the necessity to comply with permit conditions and there are no feasible, practicable alternatives to the emergency authorization. This emergency authorization may be renewed once for not longer than 60 days.(k) In determining whether feasible, practicable alternatives exist to the suspension of water right conditions, the commission or executive director shall examine:(1) the amount and purposes of use for water currently being used by the applicant;(2) all evidence relating to the availability of alternative, supplemental water supplies to the applicant; and(3) the applicant's efforts to curtail water use not essential for the protection of the public health, safety, and welfare.(l) If the water right holder has a water conservation plan and/or drought contingency plan, the suspension of water right conditions, or a temporary authorization, may be contingent upon the full implementation of those plans and measures corresponding to the staged reduction of releases for existing instream uses and beneficial inflows. If the water right holder does not have a water conservation plan and drought contingency plan in accordance with Chapter 288 of this title (relating to Water Conservation Plans, Drought Contingency Plans, Guidelines and Requirements), the order granting an application under this section shall require the permittee to develop and implement those plans within a prescribed time period as provided in the order.(m) In granting an application, all existing instream flows shall be passed up to that amount necessary to maintain water quality standards for the affected stream. Additional flows necessary to protect a species in accordance with the federal Endangered Species Act or other species that are considered to be of "high interest" (self-sustaining wild populations that are endemic to the affected stream, have significant scientific value, or commercial value) may also be required.(n) In order to assist in the preparation and planning for water management during an emergency, the commission or executive director may provide conditions in a water right necessary for relief consistent with applicable portions of this section when the water right is initially granted or subsequently amended. These conditions may include, but shall not be limited to, a staged approach to the reduction in the pass-through amounts that provide for the pass-through of water for instream uses and bays and estuaries when it is available, and allow water to be captured or diverted for the protection of the public health, safety, and welfare during an emergency, subject to the protection of stream flows necessary under subsection (m) of this section for the maintenance of water quality standards. These conditions may also include full implementation by the water right holder of water conservation and drought contingency plans as a precondition for obtaining relief.(o) If the applicant's water right already contains provisions for the temporary, total, or partial suspension of permit conditions for the maintenance of instream flows or freshwater inflows to bays and estuaries, further or different relief requested in an application submitted under this section generally will be denied unless the applicant can show new or changed circumstances or an emergency condition not contemplated when the water right condition was issued.</content><note type="source"><p>Source Note: The provisions of this §35.101 adopted to be effective December 10, 1998, 23 TexReg 12413; amended to be effective May 15, 2011, 36 TexReg 2837.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c35/scE"><num value="E">SUBCHAPTER E</num><heading>EMERGENCY ORDERS FOR UTILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c35/scE/s35.201"><num value="35.201">§35.201</num><heading>Emergency Order for Operation of Utility That Discontinues Operation or Is Referred for Appointment of a Receiver</heading><content>(a) The commission or executive director may appoint a person by emergency order under Texas Water Code, §5.507 and §13.4132, to temporarily manage and operate a utility that has discontinued or abandoned operations, or which is being referred to the attorney general for the appointment of a receiver under Texas Water Code, §13.412.(b) An emergency order may be issued under this section under the provisions of §291.142 and §291.143 of this title (relating to Operation of Utility That Discontinues Operation or Is Referred for Appointment of a Receiver and Operation of a Utility by a Temporary Manager).(c) Notice of an action under this section is adequate if the notice is mailed or hand-delivered to the last known address of the utility's headquarters.</content><note type="source"><p>Source Note: The provisions of this §35.201 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scE/s35.202"><num value="35.202">§35.202</num><heading>Emergency Order to Compel Utility to Provide Service or Interconnection</heading><content>(a) The commission or executive director may compel a retail public utility that has obtained a certificate of public convenience and necessity to provide water or sewer service, or both, that complies with all statutory and regulatory requirements of the commission if necessary to ensure safe drinking water or environmental protection.(b) The commission or executive director may compel a retail public utility to provide an emergency interconnection with a neighboring retail public utility for the provision of temporary water or sewer service, or both, for not more than 90 days if necessary to ensure safe drinking water or environmental protection.(c) Notice of an action under this section is adequate if the notice is mailed or hand-delivered to the last known address of the retail public utility's headquarters.</content><note type="source"><p>Source Note: The provisions of this §35.202 adopted to be effective March 18, 2021, 46 TexReg 1653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c35/scF"><num value="F">SUBCHAPTER F</num><heading>WATER QUALITY EMERGENCY AND TEMPORARY ORDERS</heading><section identifier="/us/state/tx/tac/t30/p1/c35/scF/s35.301"><num value="35.301">§35.301</num><heading>Emergency and Temporary Orders Authorized</heading><content>The commission may issue temporary orders, and the commission or executive director may issue emergency orders, relating to the discharge of waste or pollutants into or adjacent to any water in the state under Texas Water Code, §5.509 when necessary to enable action to be taken more expeditiously than is otherwise provided by Texas Water Code, Chapter 26 to effectuate the policy and purposes of that chapter.</content><note type="source"><p>Source Note: The provisions of this §35.301 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scF/s35.302"><num value="35.302">§35.302</num><heading>Application for Emergency and Temporary Orders To Discharge</heading><content>(a) A person desiring to obtain an order to discharge waste into the waters in the state under this subchapter shall submit an application in accordance with §35.24 of this title (relating to Application for Emergency or Temporary Order). The application must contain the information required by that section and the following:(1) statements that:(A) the order is necessary to enable action to be taken more expeditiously than is otherwise provided by Texas Water Code, Chapter 26, to effectuate the policy and purposes of that chapter;(B) the discharge is unavoidable to:(i) prevent loss of life, serious injury, or severe property damage;(ii) to make necessary and unforeseen repairs to the facility; or(iii) to ameliorate serious drought conditions to the extent consistent with the requirements of the federal Clean Water Act for authorization of the NPDES program.(C) there is no feasible alternative to the proposed discharge;(D) the discharge will not cause significant hazard to human life and health, unreasonable damage to property of persons other than the applicant, or unreasonable economic loss to persons other than the applicant; and(E) the proposed discharge will not present a significant hazard to the uses that may be made of the receiving water after the discharge;(2) statements that there are no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass from occurring during normal periods of equipment downtime or preventive maintenance;(3) a statement of the volume and quality of the proposed discharge;(4) an explanation of measures proposed to minimize the volume and duration of the discharge;(5) an explanation of measures proposed to maximize the waste treatment efficiency of units not taken out of service or facilities provided for interim use; and(6) for temporary orders, a list of potentially affected persons in accordance with §305.48(a)(2) of this title (relating to Additional Contents for Applications for Wastewater Discharge Permits).(b) A person desiring to obtain an order to discharge adjacent to waters in the state under this subchapter shall submit an application in accordance with §35.24 of this title. The application must contain the information required by that section and the following:(1) statements that:(A) the order is necessary to enable action to be taken more expeditiously than is otherwise provided by Texas Water Code, Chapter 26, to effectuate the policy and purposes of that chapter;(B) the discharge is unavoidable to:(i) prevent loss of life, serious injury, severe property damage, or severe economic loss;(ii) ameliorate serious drought conditions; or(iii) make necessary and unforeseen repairs to a facility;(C) there is no feasible alternative to the proposed discharge;(D) the discharge will not cause significant hazard to human life and health, unreasonable damage to property of persons other than the applicant, or unreasonable economic loss to persons other than the applicant; and(E) the proposed discharge will not present a significant hazard to the area of or surrounding the discharge;(2) a statement of the volume and quality of the proposed discharge;(3) an explanation of measures proposed to minimize the volume and duration of the discharge;(4) an explanation of measures proposed to maximize the waste treatment efficiency of units not taken out of service or facilities provided for interim use; and(5) for temporary orders, a list of potentially affected persons in accordance with §305.48(a)(2) of this title.</content><note type="source"><p>Source Note: The provisions of this §35.302 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scF/s35.303"><num value="35.303">§35.303</num><heading>Emergency Orders and Temporary Orders</heading><content>(a) The commission or executive director may issue emergency orders, and the commission may issue temporary orders, under this subchapter only if it is found that:(1) the order is necessary to enable action to be taken more expeditiously than is otherwise provided by Texas Water Code, Chapter 26 to effectuate the policy and purposes of that chapter;(2) for discharges into water in the state, the discharge is unavoidable to:(A) prevent loss of life, serious injury, or severe property damage; or(B) to ameliorate serious drought conditions, to the extent consistent with the requirements of the federal Clean Water Act for authorization of the NPDES program.(3) for discharges adjacent to waters in the state, the discharge is unavoidable to prevent loss of life, serious injury, severe property damage, to ameliorate serious drought conditions, or to make necessary and unforeseen repairs to a facility;(4) there is no feasible alternative to the proposed discharge;(5) the discharge will not cause significant hazard to human life and health, unreasonable damage to property of persons other than the applicant, or unreasonable economic loss to persons other than the applicant;(6) the proposed discharge will not present a significant hazard either to the uses that may be made of the receiving water after the discharge, or the area surrounding the discharge;(7) the dates on which the proposed discharge will begin and end and the volume and quality of the proposed discharge are reasonable and attainable; and(8) the measures proposed to minimize the volume and duration of the discharge and the measures proposed to maximize the waste treatment efficiency of units not taken out of service or facilities provided for interim use are reasonable.(b) The issuing authority may issue emergency orders and temporary orders to discharge waste or pollutants into water in the state under this subchapter only if the discharge is from an NPDES or Texas pollutant discharge elimination system-permitted treatment facility.</content><note type="source"><p>Source Note: The provisions of this §35.303 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c35/scG"><num value="G">SUBCHAPTER G</num><heading>SOLID WASTE AND URANIUM BY-PRODUCT EMERGENCY ORDERS</heading><section identifier="/us/state/tx/tac/t30/p1/c35/scG/s35.401"><num value="35.401">§35.401</num><heading>Emergency Orders for Non-hazardous Solid Waste Activities and Underground Injection of Uranium By-product Materials</heading><content>(a) The commission or executive director may issue a mandatory or prohibitory emergency order under Texas Water Code, §5.512, regarding any activity of solid waste management within its jurisdiction, if it determines that an emergency exists requiring immediate action to protect public health and safety or the environment.(b) An emergency order issued under this section shall not exceed 90 days, but may be renewed once.(c) An emergency order affecting an underground injection control permit may be issued for a time no longer than that required to prevent the hazard, and may not be renewed. The injection authorized by the emergency order may not result in the movement of fluids into underground sources of drinking water.</content><note type="source"><p>Source Note: The provisions of this §35.401 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scG/s35.402"><num value="35.402">§35.402</num><heading>Emergency Actions Concerning Hazardous Waste</heading><content>(a) Whenever there is good reason to believe that the storage, processing, or disposal of hazardous waste should be authorized to alleviate an imminent and substantial endangerment to human health or safety or the environment; and if there are no alternative, permitted facilities reasonably available for the proper management of the waste, the commission or executive director, on its own motion, or at the request of the executive director or any other party, may issue an emergency order under Texas Water Code, §5.512, authorizing the processing, storage, or disposal of the hazardous waste at a nonpermitted facility or at a permitted facility with no authorization under its permit to receive the hazardous waste in need of immediate management.(b) In addition to the information required under §35.24 of this title (relating to Application for Emergency or Temporary Order) a party, other than the executive director, requesting such an emergency order shall include a description of any alternatives investigated.(c) The executive director shall review the request and may require the requesting party to supply additional information as may be reasonably required to assist in making the findings set out in subsection (a) of this section.(d) An emergency order issued under this section:(1) shall not exceed 90 days in duration;(2) shall clearly specify the hazardous wastes to be received, and the manner and location of their processing, storage, or disposal;(3) may be terminated by the commission at any time without notice and hearing if it determines that termination is appropriate to protect human health or the environment;(4) shall incorporate, to the extent possible and not inconsistent with the emergency situation, all applicable requirements of this chapter and Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste); and(5) for underground injection control permits issued under this section, shall be for no longer duration than required to prevent the hazard. The injection authorized may not result in the movement of fluids into underground sources of drinking water.(e) Public notice shall accompany the emergency order, shall allow at least 45 days for public comment, and shall be given at least 30 days before the hearing on the emergency order. Public notice of the order may be given at the same time as public notice and opportunity for comment on the order, and the two notices may be combined. The notice shall include:(1) the name and address of the applicant;(2) the name and location of the hazardous waste management facility;(3) a brief description of the wastes involved;(4) a brief description of the action authorized or to be authorized, and the reasons for authorization;(5) the duration of the emergency order; and(6) the name and address of the commission (the office granting the order).</content><note type="source"><p>Source Note: The provisions of this §35.402 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c35/scH"><num value="H">SUBCHAPTER H</num><heading>RADIOACTIVE SUBSTANCES AND MATERIALS EMERGENCY ORDERS</heading><section identifier="/us/state/tx/tac/t30/p1/c35/scH/s35.501"><num value="35.501">§35.501</num><heading>Emergency Orders Relating to Radioactive Substances</heading><content>(a) When an emergency exists as a result of a matter under the commission's jurisdiction that requires immediate action to protect the public health or safety or the environment, the commission or executive director may issue an emergency order under Texas Water Code, §5.516, and Texas Health and Safety Code, §401.056.(b) The commission or executive director may issue an emergency order directing any action or corrective measure needed to correct or remove the threat to public health or safety or the environment when the commission or executive director determines that radioactive substances under its jurisdiction threatens the public health or safety or the environment and that the licensee managing the radioactive substances is unable to remove the threat.(c) An emergency order issued under this section takes effect immediately. A person to whom an emergency order is directed shall comply immediately with that order.(d) The emergency order shall be delivered to the person to whom the order is directed by hand delivery or by certified mail, return receipt requested. Affidavit of personal service, proof of mailing to the proper address, or the receipt shall be conclusive evidence of service.(e) If the commission or executive director issues the emergency order without notice or hearing, the commission shall provide the person to whom the order is directed an opportunity for a hearing on written request within 30 days of the date of the order. If a hearing is requested, notice of the hearing shall be given to the person to whom the order is directed by hand delivery or certified mail, return receipt requested, at least ten days before the hearing. A requested hearing shall be held not earlier than the 11th day and not later than the 20th day following the date of receipt of the hearing request.(f) All provisions of the emergency order shall remain in full force and effect during the pendency of a hearing, unless otherwise altered by the commission. At the conclusion of the hearing and after the proposal for decision is made, the commission shall make a determination to affirm, modify, or revoke the emergency order and may modify, revoke, or suspend the license based on the determination made.(g) The commission shall use the financial assurance mechanism provided by a licensee to pay the costs of actions and corrective measures that are taken or that are to be taken under this section. The commission shall use this financial assurance mechanism under the procedure set out in Texas Health and Safety Code, Chapter 401.(h) If the costs of actions and corrective measures require more funds than the financial assurance mechanism has provided, the commission shall request the attorney general to seek reimbursement from the licensee or person causing the threat.(i) The commission shall seek reimbursement through a commission order or shall request the attorney general to file suit for reimbursement if the commission uses the funds provided by the licensee for security under Texas Health and Safety Code, Chapter 401, to pay for actions or corrective measures to remedy spills or contamination by radioactive material resulting from a violation of the Texas Radiation Control Act (TRCA), the rules of this chapter, or a license or order issued by the commission under the TRCA or this chapter.</content><note type="source"><p>Source Note: The provisions of this §35.501 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scH/s35.502"><num value="35.502">§35.502</num><heading>Emergency Impoundment of Radioactive Material</heading><content>(a) In the event of an emergency, the commission or the executive director shall have the authority to impound or order the impoundment of radioactive material possessed by any person not equipped to observe or failing to observe the provisions of the Texas Radiation Control Act (TRCA), the rules of Chapter 336 of this title (relating to Radioactive Substance Rules), or a license or order issued by the commission under the TRCA or Chapter 336 of this title.(b) As determined by the commission, the impounded radioactive material may be:(1) returned to a properly licensed owner who did not cause the emergency;(2) released as evidence to police or courts;(3) returned to a licensee after the emergency conditions have ceased and any compliance action is settled;(4) sold;(5) disposed of at an authorized disposal facility; or(6) otherwise appropriately transferred or disposed.(c) If disposition of the impounded radioactive material is necessary to protect the public health and safety, no prior notice need be given the owner or possessor. If action is not necessary to protect the public health and safety, the commission shall give written notice to the owner and/or possessor of the intention to dispose of the material. Notice shall be given by personal service or certified mail, return receipt requested. The owner or possessor shall have 30 days from the date of personal service or mailing to make a written request for a hearing. If no hearing is requested within that time, the commission may take the proposed action.(d) Upon disposition of impounded radioactive material, the commission may notify the owner and/or possessor of any expense the commission may have incurred during the impoundment and/or disposition and request reimbursement. If the amount is not paid within 60 days from the date of notice, the commission may request the attorney general to file suit against the owner or possessor for the amount requested. If the owner or possessor desires to contest the amount of this charge, he may request a hearing.(e) If the commission determines from the facts available that impounded radioactive material is abandoned, with no reasonable evidence showing the owner or possessor, the commission may make such disposition of the material as it sees fit.</content><note type="source"><p>Source Note: The provisions of this §35.502 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c35/scI"><num value="I">SUBCHAPTER I</num><heading>STORAGE TANK EMERGENCY ORDERS</heading><section identifier="/us/state/tx/tac/t30/p1/c35/scI/s35.601"><num value="35.601">§35.601</num><heading>Emergency Order Concerning Underground or Aboveground Storage Tanks</heading><content>(a) The commission or executive director may issue orders under Texas Water Code, §5.510, to the owner or operator of an underground storage tank (UST) regulated under Texas Water Code, Chapter 26, and Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks), if it finds that:(1) there is an actual or threatened release of a regulated substance from a UST; and(2) more expeditious corrective action than is otherwise provided for under Texas Water Code, Chapter 26 is necessary to protect the public health and safety or the environment.(b) An order issued under subsection (a) of this section may prohibit a person from allowing or continuing a release or threatened release and may require the person to take the actions necessary to eliminate the release or threatened release.(c) An emergency order issued under this section must be:(1) mailed by certified mail, return receipt requested, to each person identified in the order;(2) hand delivered to each person identified in the order; or(3) on failure of service by certified mail or hand delivery, published one time in the Texas Register, and one time in a newspaper with general circulation in each county in which any of the persons identified in the order had a last known address.</content><note type="source"><p>Source Note: The provisions of this §35.601 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c35/scJ"><num value="J">SUBCHAPTER J</num><heading>IMMINENT AND SUBSTANTIAL ENDANGERMENT</heading><section identifier="/us/state/tx/tac/t30/p1/c35/scJ/s35.701"><num value="35.701">§35.701</num><heading>Emergency Orders</heading><content>The commission or the executive director may issue an emergency administrative order under Health and Safety Code, §361.272, in the manner provided by this chapter.</content><note type="source"><p>Source Note: The provisions of this §35.701 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c35/scK"><num value="K">SUBCHAPTER K</num><heading>AIR ORDERS</heading><section identifier="/us/state/tx/tac/t30/p1/c35/scK/s35.801"><num value="35.801">§35.801</num><heading>Emergency Orders Because of Catastrophe</heading><content>The commission or executive director may issue emergency orders under Texas Water Code, §5.515, to authorize immediate action for the addition, replacement, or repair of facilities or control equipment, or the repair or replacement of roads, bridges, or other infrastructure, and authorizing associated emissions of air contaminants, whenever a catastrophe necessitates such construction and emissions otherwise precluded under the Texas Clean Air Act. For purposes of this section, a catastrophe is an unforeseen event including, but not limited to, an act of God, an act of war, severe weather conditions, explosions, fire, or other similar occurrences beyond the reasonable control of the applicant, which renders a facility or its functionally related appurtenances, or a road, bridge, or other infrastructure, inoperable.</content><note type="source"><p>Source Note: The provisions of this §35.801 adopted to be effective December 10, 1998, 23 TexReg 12413; amended to be effective July 20, 2006, 31 TexReg 5642.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scK/s35.802"><num value="35.802">§35.802</num><heading>Application for an Emergency Order</heading><content>The owner or operator of a facility, as that term is defined in Texas Health and Safety Code, §382.003, desiring to obtain an order under this subchapter shall submit an application in accordance with §35.24 of this title (relating to Application for Emergency or Temporary Order). The application must contain the information required by that section and the following: (1) a statement that the proposed construction and emissions are essential to prevent loss of life, serious injury, severe property damage, loss of a critical transportation thoroughfare, or severe economic loss not attributable to the applicant's actions, and are necessary for the addition, replacement, or repair of facilities or control equipment, or repair or replacement of roads, bridges, or other infrastructure, necessitated by a catastrophe; (2) a description of the catastrophe; (3) a statement that there are no practicable alternatives to the proposed construction and emissions; (4) a statement that the emissions will not cause or contribute to a condition of air pollution; (5) a statement that the proposed construction and emissions will occur only: (A) on the property where the catastrophe occurred; (B) on other property owned by the owner or operator of the damaged facility, which produces the same intermediates, products, or by-products, provided that no more than a de minimus increase will occur in the predicted concentration of the air contaminants at or beyond the property line at such other property; or (C) for public works projects needed to rebuild or repair damaged roads, bridges, or other infrastructure destroyed during a catastrophe; (6) a description of the proposed construction and the type and quantity of air contaminants to be emitted; (7) an estimate of the dates on which the proposed construction and emissions will begin and end; (8) an estimate of the date on which the facility will begin operation; (9) a statement that any construction or modification will not interfere with the attainment or maintenance of national ambient air quality standards or violate applicable portions of the control strategy; and (10) any other information or item the executive director may require to support or explain the need for, or to expedite the issuance of, an emergency order; including information regarding the applicability of and compliance with any federal requirements for new or modified sources.</content><note type="source"><p>Source Note: The provisions of this §35.802 adopted to be effective December 10, 1998, 23 TexReg 12413; amended to be effective July 20, 2006, 31 TexReg 5642.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scK/s35.803"><num value="35.803">§35.803</num><heading>Public Notification</heading><content>The commission or executive director shall publish notice of the issuance of an emergency order in the Texas Register as soon as practicable after issuance of the order. If the order is issued prior to a hearing, the order shall fix a time and location for a hearing which is to be held as soon as practicable after the order is issued. Notice of any hearing shall be published in a newspaper of general circulation in the nearest municipality not later than ten days before the hearing. Notice of the issuance and notice of the hearing may be consolidated for publication in the newspaper.</content><note type="source"><p>Source Note: The provisions of this §35.803 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scK/s35.804"><num value="35.804">§35.804</num><heading>Issuance of Order</heading><content>The commission or executive director may issue an order under this subchapter if it is found that: (1) the proposed construction and emissions are essential to prevent loss of life, serious injury, severe property damage, loss of a critical transportation thoroughfare, or severe economic loss not attributable to the applicant's actions and are necessary for the addition, replacement, or repair of facilities or control equipment, or repair or replacement of roads, bridges, or other infrastructure, that is necessitated by a catastrophe; (2) there are no practicable alternatives to the proposed construction and emissions; (3) the emissions will not cause or contribute to a condition of air pollution; (4) any construction or modification will not interfere with the attainment or maintenance of national ambient air quality standards or violate applicable portions of the control strategy; (5) the proposed construction or emissions will occur only: (A) on property where the catastrophe occurred; (B) on other property owned by the owner or operator of the damaged facility, which produces the same intermediates, products, or by-products, provided that no more than a de minimus increase will occur in the predicted concentration of the air contaminants at or beyond the property line at such other property; or (C) for public works projects needed to rebuild or repair damaged roads, bridges, or other infrastructure destroyed during a catastrophe; (6) the time limits in the order for the beginning and completion of the proposed construction and emissions are reasonable; and (7) the schedule in the order for submission of a complete permit application is reasonable.</content><note type="source"><p>Source Note: The provisions of this §35.804 adopted to be effective December 10, 1998, 23 TexReg 12413; amended to be effective July 20, 2006, 31 TexReg 5642.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scK/s35.805"><num value="35.805">§35.805</num><heading>Contents of an Emergency Order</heading><content>In addition to the requirements of §35.26 of this title (relating to Contents of Emergency or Temporary Order), an emergency order issued under this subchapter shall contain at least the following: (1) a description of the emergency construction and emissions to be authorized; (2) reasonable time limits for the beginning and the completion of the proposed construction and emissions; (3) authorization for action only: (A) on the property where the catastrophe occurred; (B) on other property owned by the owner or operator of the damaged facility, which produces the same intermediates, products, or by-products, provided that no more than a de minimus increase will occur in the predicted concentration of the air contaminants at or beyond the property line at such other property; or (C) for public works projects needed to rebuild or repair damaged roads, bridges, or other infrastructure destroyed during a catastrophe; (4) the requirement that any construction or modification will not interfere with the attainment or maintenance of national ambient air quality standards or violate applicable portions of the control strategy; and (5) a schedule for submission of a complete construction permit application under provisions of Texas Clean Air Act, Chapter 382.</content><note type="source"><p>Source Note: The provisions of this §35.805 adopted to be effective December 10, 1998, 23 TexReg 12413; amended to be effective July 20, 2006, 31 TexReg 5642.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scK/s35.806"><num value="35.806">§35.806</num><heading>Requirement To Apply for a Permit or Modification</heading><content>The owner or operator of a facility for which an emergency order has been issued under this subchapter shall submit an application within 60 days of issuance of the order under Texas Water Code, §5.515; TCAA, §382.0518; and Chapter 116, Subchapter B of this title (relating to New Source Review Permits). The application shall be reviewed and acted upon by the executive director without regard to construction activity authorized by the emergency order. The appropriate permit fee shall be due and payable under §§116.140, 116.141, and 116.143 of this title (relating to Permit Fees). Costs and expenses related to additions, replacement, or repair of facilities or control equipment shall not be a consideration in any determination in the review of this application.</content><note type="source"><p>Source Note: The provisions of this §35.806 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scK/s35.807"><num value="35.807">§35.807</num><heading>Affirmation of an Emergency Order</heading><content>The commission shall affirm a proposed or issued order if the applicant shows at the hearing, by a preponderance of the evidence, that: (1) the proposed construction and emissions are essential to prevent loss of life, serious injury, severe property damage, loss of a critical transportation thoroughfare, or severe economic loss not attributable to the applicant's actions and are necessary for the addition, replacement, or repair of facilities or control equipment, or repair or replacement of roads, bridges, or other infrastructure, that is necessitated by a catastrophe; (2) there are no practicable alternatives to the proposed construction and emissions; (3) the emissions will not cause or contribute to a condition of air pollution; (4) any construction or modification will not interfere with the attainment or maintenance of national ambient air quality standards or violate applicable portions of the control strategy; and (5) the proposed construction or emissions will occur only: (A) on property where the catastrophe occurred; (B) on other property owned by the owner or operator of the damaged facility, which produces the same intermediates, products, or by-products, provided that no more than a de minimus increase will occur in the predicted concentration of the air contaminants at or beyond the property line at such other property; or (C) for public works projects needed to rebuild or repair damaged roads, bridges, or other infrastructure destroyed during the catastrophe; (6) the time limits in the order for the beginning and completion of the proposed construction and emissions are reasonable; and (7) the schedule in the order for submission of a complete permit application is reasonable.</content><note type="source"><p>Source Note: The provisions of this §35.807 adopted to be effective December 10, 1998, 23 TexReg 12413; amended to be effective July 20, 2006, 31 TexReg 5642.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scK/s35.808"><num value="35.808">§35.808</num><heading>Modification of an Emergency Order</heading><content>The commission shall modify a proposed or issued order if the hearing record shows that:(1) construction and emissions otherwise precluded under the Texas Clean Air Act are essential to prevent loss of life, serious injury, severe property damage, loss of a critical transportation thoroughfare, or severe economic loss not attributable to the applicant's actions and are necessary for the addition, replacement, or repair of facilities or control equipment, or repair or replacement of roads, bridges, or other infrastructure, that is necessitated by a catastrophe;(2) there is no practicable alternative to such construction and emissions; and(3) modification of certain terms of the proposed or issued order is necessary to make the order, construction, and/or emissions meet the requirements stated in §35.807 of this title (relating to Affirmation of an Emergency Order).</content><note type="source"><p>Source Note: The provisions of this §35.808 adopted to be effective December 10, 1998, 23 TexReg 12413; amended to be effective July 20, 2006, 31 TexReg 5642.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c35/scK/s35.809"><num value="35.809">§35.809</num><heading>Setting Aside an Emergency Order</heading><content>The commission shall set aside a proposed or issued order if it is not shown, in accordance with §35.807 of this title (relating to Affirmation of an Emergency Order) or §35.808 of this title (relating to Modification of an Emergency Order), that the order should be either affirmed or modified and adopted as modified.</content><note type="source"><p>Source Note: The provisions of this §35.809 adopted to be effective December 10, 1998, 23 TexReg 12413.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c35/scL"><num value="L">SUBCHAPTER L</num><heading>ON-SITE SEWAGE FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c35/scL/s35.901"><num value="35.901">§35.901</num><heading>Emergency Order Concerning On-Site Sewage Facilities</heading><content>If the commission finds that an emergency exists and that the public health and safety is endangered because the construction or operation of an on-site sewage facility (OSSF) does not comply with Texas Health and Safety Code, Chapter 366, or Chapter 285 of this title (relating to On-Site Sewage Facilities); the commission may issue an emergency order that:(1) suspends the license of an OSSF installer; or(2) requires cessation of operation of an OSSF.</content><note type="source"><p>Source Note: The provisions of this §35.901 adopted to be effective December 10, 1998, 23 TexReg 12413; amended to be effective July 18, 2002, 27 TexReg 6310.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c37"><num value="37">CHAPTER 37</num><heading>FINANCIAL ASSURANCE</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL FINANCIAL ASSURANCE REQUIREMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scA/s37.1"><num value="37.1">§37.1</num><heading>Applicability</heading><content>This chapter applies to an owner or operator required to provide financial assurance. The terms "owner or operator" and "owner and operator" are used throughout this chapter to indicate any or all of the following: owner, operator, licensee, permittee, registrant, or person. Refer to the applicable subchapter(s) of this chapter for guidance specific to a program area.</content><note type="source"><p>Source Note: The provisions of this §37.1 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scA/s37.11"><num value="37.11">§37.11</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Assets--All existing and all probable future economic benefits obtained or controlled by a particular entity.(2) Closure plan--The plan for closure prepared in accordance with commission requirements.(3) Corporate guarantor--Must be the direct or higher-tier parent corporation or a firm with a substantial business relationship with the owner or operator.(4) Current assets--Cash or other assets or resources commonly identified as those which are reasonably expected to be realized in cash or sold or consumed during the normal operating cycle of the business.(5) Current closure cost estimate--The most recent of the estimates prepared for closure.(6) Current cost estimate--The most recent estimates prepared in accordance with commission requirements for the purpose of demonstrating financial assurance for closure, post closure, or corrective action.(7) Current liabilities--Obligations whose liquidation is reasonably expected to require the use of existing resources properly classifiable as current assets or the creation of other current liabilities.(8) Current post closure cost estimate--The most recent of the estimates prepared in accordance with commission requirements.(9) Current plugging and abandonment cost estimate--The most recent of the estimates prepared in accordance with Chapter 331 of this title (relating to Underground Injection Control).(10) Entity--For the purposes of this chapter, means a legal organization engaged in lawful business or purpose, such as a corporation, partnership, sole proprietorship, limited liability company, limited liability partnership, or limited partnership or similar business organization.(11) Face amount--The total amount the insurer is obligated to pay under an insurance policy, excluding legal defense costs.(12) Financial responsibility--This term shall be used interchangeably with financial assurance.(13) Independent audit--An audit performed by an independent certified public accountant in accordance with generally accepted auditing standards.(14) Liabilities--Probable future sacrifices of economic benefits arising from present obligations to transfer assets or provide services to other entities in the future as a result of past transactions or events.(15) Net working capital--Current assets minus current liabilities.(16) Net worth--Total assets minus total liabilities and equivalent to owner's equity.(17) Parent corporation--A corporation which directly owns at least 50% of the voting stock of the corporation which is the facility owner or operator; the latter corporation is deemed a subsidiary of the parent corporation.(18) Permit--Written permission from the commission, including a permit, license, registration, or other authorization, to engage in a business or occupation, to perform an act (such as to build, install, modify, or operate a facility), or to engage in a transaction, which would be unlawful absent such permission.(19) Post closure--This term shall be used interchangeably with the term "Post closure care."(20) Post-closure order--An order issued by the commission for post-closure care of interim status units, a corrective action management unit unless authorized by permit, or alternative corrective action requirements for contamination commingled from RCRA and solid waste management units.(21) Post-closure plan--The plan for post-closure care prepared in accordance with commission requirements.(22) Program area--Commission areas under which the facility is permitted, licensed, or registered to operate, including, but not limited to, Industrial and Hazardous Waste, Underground Injection Control, Municipal Solid Waste, or Petroleum Storage Tanks.(23) Standby trust--An unfunded trust established to meet the requirements of this chapter.(24) Substantial business relationship--A relationship where the guarantor is a corporation and owns at least 50% of the entity guaranteed.(25) Tangible net worth--The tangible assets that remain after deducting liabilities; such assets would not include intangibles such as goodwill and rights to patents or royalties.</content><note type="source"><p>Source Note: The provisions of this §37.11 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective November 2, 1998, 23 TexReg 11159; amended to be effective October 7, 1999, 24 TexReg 8555; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective January 30, 2003, 28 TexReg 687.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scA/s37.21"><num value="37.21">§37.21</num><heading>Wording and Approval of Mechanisms</heading><content>The mechanisms submitted for compliance with this chapter must be worded as they appear in Subchapter D or G of this chapter (relating to Wording of the Mechanisms for Closure, Post Closure, and Corrective Action or Wording of the Mechanisms for Liability). The executive director shall determine the acceptability of the mechanisms submitted.</content><note type="source"><p>Source Note: The provisions of this §37.21 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scA/s37.31"><num value="37.31">§37.31</num><heading>Submission of Documents</heading><content>(a) An owner or operator required by this chapter to provide financial assurance for closure, post closure, or liability coverage must submit an originally signed financial assurance mechanism to the executive director 60 days prior to acceptance of waste. The mechanism must be in effect before the initial receipt of waste.(b) An owner or operator required by this chapter to provide financial assurance for corrective action must submit an originally signed financial assurance mechanism 60 days after the permit or order requiring the corrective action financial assurance is signed by the executive director or commission. The mechanism must be in effect when submitted.</content><note type="source"><p>Source Note: The provisions of this §37.31 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scA/s37.41"><num value="37.41">§37.41</num><heading>Use of Multiple Financial Assurance Mechanisms</heading><content>(a) An owner or operator may satisfy the requirements of this chapter by establishing more than one financial assurance mechanism per facility. These mechanisms are limited to those specified in this chapter. For closure, post closure, or corrective action, the financial test or corporate guarantee may not be combined with another mechanism. For liability coverage, the owner or operator may not combine a financial test covering part of the liability coverage requirement with a guarantee unless the financial statement of the owner or operator is not consolidated with the financial statement of the guarantor.(b) It shall be the combination of mechanisms, rather than the single mechanism, which shall provide financial assurance for an amount that must be at least equal to the minimum financial assurance requirements of this chapter.(c) If an owner or operator uses a trust fund in combination with a surety bond or irrevocable standby letter of credit, the owner or operator may use that trust fund as the standby trust fund for the other mechanisms.(d) A single standby trust may be established for two or more mechanisms.(e) The executive director may call on any or all of the mechanisms to satisfy the requirements for which financial assurance was provided.(f) If an owner or operator demonstrates the required liability coverage through the use of a combination of financial assurance mechanisms, the owner or operator shall specify at least one such assurance as "primary" coverage and shall specify other assurance as "excess."</content><note type="source"><p>Source Note: The provisions of this §37.41 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scA/s37.51"><num value="37.51">§37.51</num><heading>Use of a Financial Assurance Mechanism for Multiple Facilities</heading><content>An owner or operator may use a financial assurance mechanism as specified in this chapter to meet the requirements of this chapter for more than one facility, provided that the facilities are in the same program area. Financial assurance submitted to the executive director shall include a list showing for each facility covered by the mechanism: the name, physical and mailing addresses of the facility, each program area and permit number, the rules regulating the program under which the facility is permitted, and the amount of funds demonstrated for each permit, for closure, post closure, corrective action, and liability. The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each facility. In directing funds available through the mechanism for any of the facilities covered by the mechanism, the executive director may call on only the amount of funds designated for that facility, unless the owner or operator agrees to the use of additional funds available under the mechanism.</content><note type="source"><p>Source Note: The provisions of this §37.51 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scA/s37.52"><num value="37.52">§37.52</num><heading>Use of a Universal Financial Assurance Mechanism for Multiple Facilities and Program Areas</heading><content>(a) An owner or operator may use a universal mechanism to meet the requirements of this chapter for multiple facilities permitted in multiple program areas, provided the mechanism is allowed to be used in the program areas represented. The amount of funds demonstrated by the universal mechanism must be no less than the sum of funds that would be available if separate mechanisms were established and maintained. The wording of the mechanisms must be in a form satisfactory to the executive director. The available mechanisms are those specified in this chapter, except that the financial test or corporate guarantee may not be combined with other specified mechanisms and a standby trust fund shall be required in certain circumstances. For liability coverage, the owner or operator may not combine a financial test covering part of the liability coverage requirement with a guarantee unless the financial statement of the owner or operator is not consolidated with the financial statement of the guarantor.(b) A universal mechanism submitted to the executive director shall include a list showing, for each facility covered by the mechanism: the name, physical and mailing addresses of the facility, each program area and permit number, the rules regulating the program under which the facility is permitted, and the amount of funds demonstrated for each permit for closure, post closure, corrective action, and liability. The anniversary date of the universal mechanism is the date on which owners or operators shall make an annual inflation adjustment for all facilities demonstrating through the universal mechanism. In directing funds available through the universal mechanism for any of the facilities covered by the mechanism, the executive director may call on only the amount of funds designated for each permit for that facility, unless the owner or operator agrees to the use of additional funds available under the mechanism.(c) An owner or operator who intends to use the financial test or corporate guarantee as a universal mechanism, must certify the ability to meet the financial test or corporate guarantee requirements for each of the corresponding program areas for which the universal mechanism is intended to cover.</content><note type="source"><p>Source Note: The provisions of this §37.52 adopted to be effective November 2, 1998, 23 TexReg 11159; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scA/s37.61"><num value="37.61">§37.61</num><heading>Termination of Mechanisms</heading><content>Upon written request by the owner or operator, the executive director shall provide written consent to termination of a financial assurance mechanism when:(1) an owner or operator substitutes and receives approval from the executive director for alternate financial assurance as specified in this chapter; or(2) the executive director releases the owner or operator from the requirements of this chapter.</content><note type="source"><p>Source Note: The provisions of this §37.61 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scA/s37.71"><num value="37.71">§37.71</num><heading>Incapacity of Owners or Operators, Guarantors, or Issuing Institutions</heading><content>(a) An owner or operator must notify the executive director by certified mail of the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), United States Code, naming the owner or operator as debtor, within ten business days after the commencement of the proceeding. As required under the terms of the guarantee, a guarantor of a corporate guarantee as specified in §37.261 of this title (relating to Corporate Guarantee) and a corporate guarantee as specified in §37.551 of this title (relating to Corporate Guarantee for Liability) shall make such a notification if named as a debtor.(b) An owner or operator who fulfills the requirements of this chapter shall be deemed to be without the required financial assurance coverage in the event of bankruptcy of the trustee or issuing institution, or a suspension or revocation of the authority of the trustee institution to act as trustee or of the institution issuing the surety bond, irrevocable standby letter of credit, or insurance policy to issue such mechanisms. The owner or operator must establish other acceptable financial assurance within 60 days after such an event.</content><note type="source"><p>Source Note: The provisions of this §37.71 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scA/s37.81"><num value="37.81">§37.81</num><heading>Transfer of Ownership or Operational Control</heading><content>When a transfer of ownership or operational control occurs, the old owner or operator shall comply with the requirements of this chapter, until the executive director determines that the new owner or operator has demonstrated compliance with the requirements of this chapter. Upon determination by the executive director that the new owner or operator is in compliance with this chapter, the executive director shall provide written consent to termination of the financial assurance mechanism to the old owner or operator in accordance with §37.61 of this title (relating to Termination of Mechanisms).</content><note type="source"><p>Source Note: The provisions of this §37.81 adopted to be effective December 30, 1996, 21 TexReg 12297.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scB"><num value="B">SUBCHAPTER B</num><heading>FINANCIAL ASSURANCE REQUIREMENTS FOR CLOSURE, POST CLOSURE, AND CORRECTIVE ACTION</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scB/s37.100"><num value="37.100">§37.100</num><heading>Applicability</heading><content>This subchapter applies to an owner or operator required to provide financial assurance for closure, post closure, or corrective action.</content><note type="source"><p>Source Note: The provisions of this §37.100 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scB/s37.101"><num value="37.101">§37.101</num><heading>Drawing on the Financial Assurance Mechanisms</heading><content>The executive director may call on the financial assurance mechanism(s) when an owner or operator who is required to comply with this chapter has:(1) failed to perform closure, post closure, or corrective action when required;(2) failed to provide an alternate financial assurance mechanism, when required; or(3) failed to provide continuous financial assurance coverage.</content><note type="source"><p>Source Note: The provisions of this §37.101 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scB/s37.111"><num value="37.111">§37.111</num><heading>Continuous Financial Assurance Required</heading><content>The owner or operator of a facility required by this chapter to provide financial assurance for closure, post closure, or corrective action, shall provide continuous financial assurance until the executive director provides written consent to termination in accordance with §37.61 of this title (relating to Termination of Mechanisms).</content><note type="source"><p>Source Note: The provisions of this §37.111 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scB/s37.121"><num value="37.121">§37.121</num><heading>Current Cost Estimate</heading><content>The owner or operator of each facility required by this chapter to provide financial assurance for closure, post closure, or corrective action must establish financial assurance in an amount no less than the current cost estimate.</content><note type="source"><p>Source Note: The provisions of this §37.121 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scB/s37.131"><num value="37.131">§37.131</num><heading>Annual Inflation Adjustments to Closure Cost Estimates</heading><content>During the active life of the facility, the owner or operator must adjust the current cost estimate for inflation within 60 days prior to the anniversary date of the first establishment of the financial assurance mechanism. For owners or operators using the financial test or corporate guarantee, the current cost estimate must be adjusted for inflation within 30 days after the close of the firm's fiscal year and before submission of updated information to the executive director as specified in this chapter. The adjustment must be made using an inflation factor derived from the most recent annual Implicit Price Deflator for Gross National Product published by the United States Department of Commerce in its Survey of Current Business, as specified in paragraphs (1) and (2) of this section. The inflation factor is the result of dividing the latest published annual Deflator by the Deflator for the previous year.(1) The first adjustment is made by multiplying the current cost estimate by the inflation factor. The result is the adjusted current cost estimate.(2) Subsequent adjustments are made by multiplying the latest adjusted cost estimate by the latest inflation factor.(3) If there is a revised current cost estimate in current dollars approved by the executive director prior to the anniversary date described in this section, then the owner or operator is not required to make an inflation adjustment. However, a revised current cost estimate in current dollars shall be adjusted for inflation for subsequent years as required by this section.</content><note type="source"><p>Source Note: The provisions of this §37.131 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scB/s37.141"><num value="37.141">§37.141</num><heading>Increase in Current Cost Estimate</heading><content>Whenever the current cost estimate increases to an amount greater than the amount being provided in the financial assurance mechanism(s), the owner or operator must either cause the amount of the financial assurance to be increased and submit evidence of such increase to the executive director, or obtain additional financial assurance in accordance with this chapter to cover the increase. This adjustment must be made within 60 days after the owner or operator becomes aware, or is notified by the executive director, of the increase.</content><note type="source"><p>Source Note: The provisions of this §37.141 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scB/s37.151"><num value="37.151">§37.151</num><heading>Decrease in Current Cost Estimate</heading><content>An owner or operator may request that the executive director approve a decrease in the current cost estimate. The revised current cost estimate must be approved by the executive director. Whenever the revised current cost estimate decreases to an amount less than the amount being provided in the financial assurance mechanism(s), the owner or operator may submit a written request for a reduction in the amount of the financial assurance to the executive director. Following written approval by the executive director, the amount of the financial assurance may be reduced to the amount of the revised current cost estimate. An owner or operator may simultaneously request the executive director's approval of both a revised current cost estimate and a reduction in the amount of the financial assurance.</content><note type="source"><p>Source Note: The provisions of this §37.151 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scB/s37.161"><num value="37.161">§37.161</num><heading>Establishment of a Standby Trust</heading><content>An owner or operator who uses a surety bond or an irrevocable standby letter of credit to satisfy the requirements of this chapter must establish a standby trust fund. Under the terms of the bond or letter of credit, all payments made under the bond or all amounts paid pursuant to a draft by the executive director shall be deposited by the surety or issuing institution directly into the standby trust fund or in accordance with instructions from the executive director. This standby trust fund must meet the requirements of the trust fund specified in §37.201 of this title (relating to Trust Fund), except that:(1) an originally signed duplicate of the trust agreement must be submitted to the executive director with the surety bond or irrevocable standby letter of credit; and(2) unless the standby trust fund is funded pursuant to the requirements of this chapter, the following are not required by this section:(A) payments into the trust fund as specified in §37.201 of this title;(B) updating of Schedule A of the trust agreement to show current cost estimates for closure, post closure, or corrective action;(C) annual valuations as required by the trust agreement; and(D) notices of nonpayment as required by the trust agreement.</content><note type="source"><p>Source Note: The provisions of this §37.161 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scC"><num value="C">SUBCHAPTER C</num><heading>FINANCIAL ASSURANCE MECHANISMS FOR CLOSURE, POST CLOSURE, AND CORRECTIVE ACTION</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scC/s37.200"><num value="37.200">§37.200</num><heading>Applicability</heading><content>This subchapter applies to an owner or operator required to provide financial assurance for closure, post closure, or corrective action. For additional requirements relating to specific mechanisms and exceptions allowed under a program area, refer to the applicable subchapter(s) of this chapter.</content><note type="source"><p>Source Note: The provisions of this §37.200 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scC/s37.201"><num value="37.201">§37.201</num><heading>Trust Fund</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance by establishing either a fully funded trust or a pay-in trust which conforms to the requirements of this section, in addition to the requirements specified in Subchapters A and B of this chapter (relating to General Financial Assurance Requirements and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action), and submitting an originally signed duplicate of the executed trust agreement to the executive director. (b) The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency. (c) The wording of the trust agreement must be identical to the wording specified in §37.301(a) of this title (relating to Trust Agreement) including a formal certification of acknowledgment as specified in §37.301(b) of this title. (d) Schedule A of the trust agreement as specified in §37.301(a) of this title must be updated within 60 days after an approved change in the amount of the current cost estimate or annual inflation adjustments. (e) A fully funded trust requires that the initial payment into the trust fund be at least equal to the current cost estimate, or when a combination of mechanisms are used in accordance with §37.41 of this title (relating to Use of Multiple Financial Assurance Mechanisms), the initial payment plus the amount of the combined mechanism(s) must be at least equal to the current cost estimate. A receipt from the trustee for the initial payment must be submitted by the owner or operator to the executive director with the originally signed duplicate of the trust agreement. (f) In the case of a pay-in trust for closure or post closure, payments into the trust fund must be made annually by the owner or operator over the term of the initial permit or over the remaining life of the facility, whichever is shorter. In the case of a pay-in trust for corrective action for known releases, the payments into the trust fund must be made annually by the owner or operator over one-half of the estimated length of the corrective action program. The periods referred to in this subsection are the pay-in periods. The payments into the trust fund must be made in accordance with this subsection. During the period of post closure, a pay-in trust for post closure may not be used. (1) For a pay-in trust used to demonstrate financial assurance for closure and post closure, the first payment into the fund must be at least equal to the current cost estimate for closure or post closure, less the amount of the combined mechanisms, divided by the number of years in the pay-in period. Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of subsequent payments must be determined by the following formula: Attached Graphic(2) For a pay-in trust used to demonstrate financial assurance for corrective action, the first payment into the trust fund must be at least equal to one-half of the current cost estimate for corrective action, less the amount of the combined mechanisms, divided by the number of years in the corrective action pay-in period. The amount of subsequent payments must be determined by the following formula: Attached Graphic(3) The owner or operator may accelerate payments into the trust fund or may deposit the full amount of the current cost estimate at the time the fund is established. However, the owner or operator must maintain the value of the fund at no less than the value that the fund would have if annual payments were made as specified in paragraphs (1) or (2) of this subsection. (4) If the owner or operator establishes a trust fund after having used another financial assurance mechanism, the first payment must be at least equal to the amount that the fund would contain if the trust fund was established when the permit was initially issued, and subsequent payments must be made as specified in paragraphs (1) or (2) of this subsection. (g) After the initial payment for a fully funded trust or after the pay-in period is completed for a pay-in trust, whenever the current cost estimate changes, the owner or operator must compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new estimate, the owner or operator, within 30 days after the change in the current cost estimate, must either deposit an amount into the fund so that its value after this deposit at least equals the amount of the current cost estimate, or obtain an additional financial assurance mechanism as specified in this subchapter to cover the difference. (h) If the value of the trust fund is greater than the total amount of the current cost estimate, the owner or operator may submit a written request to the executive director for release of the amount in excess of the current cost estimate. (i) Within 60 days after receiving a request from the owner or operator for release of funds as specified in subsection (h) of this section, the executive director shall instruct the trustee to release to the owner or operator such funds as the executive director specifies in writing. (j) An owner or operator or any other person authorized by the executive director to perform closure, post closure, or corrective action may request reimbursement for closure, post closure, or corrective action expenditures by submitting itemized bills to the executive director. The request shall include an explanation of the expenses and all applicable itemized bills. The owner or operator may request reimbursements for partial closure only if sufficient funds are remaining in the trust fund to cover the maximum costs of closing the facility over its remaining operating life. After receiving bills for closure, post closure, or corrective action activities, the executive director shall instruct the trustee to make reimbursement in such amounts as the executive director specifies in writing, if the executive director determines that the partial or final closure, post closure, or corrective action expenditures are in accordance with the approved closure plan, post closure plan, or corrective action activities, or are otherwise justified. If the executive director has reason to believe that the cost of closure, post closure, or corrective action over the remaining life of the facility will be greater than the value of the trust fund, the executive director may withhold reimbursement of such amounts as deemed prudent until it is determined, in accordance with Subchapters A and B of this chapter (relating to General Financial Assurance Requirements and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action) that the owner or operator is no longer required to maintain financial assurance for final closure, post closure, or corrective action at the facility. (k) If an owner or operator substitutes other financial assurance as specified in this section for all or part of the trust fund, the owner or operator may submit a written request to the executive director for release of the amount in excess of the current cost estimate covered by the trust fund.</content><note type="source"><p>Source Note: The provisions of this §37.201 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scC/s37.211"><num value="37.211">§37.211</num><heading>Surety Bond Guaranteeing Payment</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance by obtaining a surety bond which conforms to the requirements of this section, in addition to the requirements specified in Subchapters A and B of this chapter (relating to General Financial Assurance Requirements and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action), and submitting an originally signed surety bond to the executive director.(b) The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the United States Department of the Treasury.(c) The wording of the surety bond must be identical to the wording specified in §37.311 of this title (relating to Payment Bond).(d) The bond must guarantee that the owner or operator shall:(1) fund the standby trust fund as required in §37.161 of this title (relating to Establishment of a Standby Trust) in an amount equal to the penal sum of the bond before the beginning of final closure of, or corrective action at, the facility;(2) fund the standby trust fund as required in §37.161 of this title in an amount equal to the penal sum within 15 days after an administrative order to begin final closure or corrective action issued by the executive director becomes final, or within 15 days after an order to begin final closure or corrective action is issued by the United States district court or other court of competent jurisdiction; or(3) provide alternate financial assurance as specified in this subchapter, and obtain the executive director's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the executive director of a notice of cancellation of the bond from the surety.(e) Under the terms of the bond, the surety shall become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.(f) The penal sum of the bond must be in an amount at least equal to the current cost estimate, except as provided in §37.41 of this title (relating to Use of Multiple Financial Assurance Mechanisms), §37.51 of this title (relating to Use of a Financial Assurance Mechanism for Multiple Facilities), or §37.52 of this title (relating to Use of a Universal Financial Assurance Mechanism for Multiple Facilities and Program Areas).(g) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the executive director. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the executive director, as evidenced by the return receipts.</content><note type="source"><p>Source Note: The provisions of this §37.211 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scC/s37.221"><num value="37.221">§37.221</num><heading>Surety Bond Guaranteeing Performance</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance by obtaining a surety bond which conforms to the requirements of this section, in addition to the requirements specified in Subchapters A and B of this chapter (relating to General Financial Assurance Requirements and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action), and submitting an originally signed surety bond to the executive director.(b) The bond must, at a minimum, be among those listed as acceptable sureties on federal bonds in Circular 570 of the United States Department of Treasury.(c) The wording of the surety bond must be identical to the wording specified in §37.321 of this title (relating to Performance Bond).(d) A surety bond guaranteeing performance of closure, post closure, or corrective action must guarantee that the owner or operator shall:(1) perform closure or post closure in accordance with the closure plan, post closure plan, and other applicable requirements of the permit, or perform corrective action in accordance with the permit or other applicable requirements; and(2) provide alternate financial assurance as specified in this subchapter, and obtain the executive director's written approval of the assurance provided within 90 days after receipt by both the owner or operator and the executive director of a notice of cancellation of the bond from the surety.(e) Under the terms of the bond, the surety shall become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. Following a determination by the executive director that the owner or operator has failed to perform closure or post closure in accordance with the closure plan, post closure plan, or other applicable requirements of the permit, or has failed to perform corrective action in accordance with the permit or other applicable requirements, under terms of the bond, the surety shall either perform closure, post closure, or corrective action as guaranteed by the bond or deposit the amount of the penal sum of the bond into a standby trust, in accordance with §37.161 of this title (relating to Establishment of a Standby Trust).(f) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the executive director. Cancellation of the bond may not occur, however, during the 120 days beginning on the date of the receipt of the notice of cancellation by both the owner or operator and the executive director, as evidenced by the return receipts. If the owner or operator fails to provide an alternate financial assurance mechanism as specified in this subchapter within 90 days of the receipt of notice of cancellation from the surety to the executive director and to the owner or operator, and obtain written approval of the alternate assurance from the executive director, the surety shall be required to perform under the terms of the bond.(g) The penal sum of the bond must be in an amount at least equal to the current cost estimate, except as provided in §37.41 of this title (relating to Use of Multiple Financial Assurance Mechanisms) or §37.52 of this title (relating to Use of a Universal Financial Assurance Mechanism for Multiple Facilities and Program Areas).(h) The surety shall not be liable for deficiencies in the performance of closure, post closure, or corrective action by the owner or operator after the executive director releases the owner or operator from the requirements of this section, in accordance with Subchapter A of this chapter.</content><note type="source"><p>Source Note: The provisions of this §37.221 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scC/s37.231"><num value="37.231">§37.231</num><heading>Irrevocable Standby Letter of Credit</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance by obtaining an irrevocable standby letter of credit which conforms to the requirements of this section, in addition to the requirements specified in Subchapters A and B of this chapter (relating to General Financial Assurance Requirements and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action), and submit an originally signed irrevocable standby letter of credit to the executive director.(b) The financial institution issuing the irrevocable standby letter of credit shall be an entity that has the authority to issue irrevocable standby letters of credit and whose operations are regulated and examined by a federal or state agency.(c) The wording of the irrevocable standby letter of credit must be identical to the wording specified in §37.331 of this title (relating to Irrevocable Standby Letter of Credit).(d) The originally signed irrevocable standby letter of credit must be accompanied by a letter from the owner or operator referring to the irrevocable standby letter of credit by number, issuing institution, and date, and providing the following information for each facility: the permit number, name and physical and mailing addresses of the facility, and the amount of funds assured for closure, post closure, or corrective action by the irrevocable standby letter of credit.(e) The letter of credit must be irrevocable and issued for a period of at least one year. The irrevocable standby letter of credit must provide that the expiration date shall be automatically extended for a period of at least one year unless, at least 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the executive director by certified mail of a decision not to extend the expiration date. Under the terms of the irrevocable standby letter of credit, the 120 days shall begin on the date when both the owner or operator and the executive director have received the notice, as evidenced by the return receipts.(f) The irrevocable standby letter of credit must be issued in an amount at least equal to the current cost estimate, except as provided in §37.41 of this title (relating to Use of Multiple Financial Assurance Mechanisms), §37.51 of this title (relating to Use of a Financial Assurance Mechanism for Multiple Facilities), or §37.52 of this title (relating to Use of a Universal Financial Assurance Mechanism for Multiple Facilities and Program Areas).(g) Following a determination that the owner or operator has failed to perform closure or post closure in accordance with the closure plan, post closure plan, and other applicable requirements of the permit, or has failed to perform corrective action in accordance with the permit or other applicable requirements, the executive director may draw on the irrevocable standby letter of credit.(h) If the owner or operator does not establish alternate financial assurance as specified in this subchapter and obtain written approval of such alternate assurance from the executive director within 90 days after receipt by both the owner or operator and the executive director of a notice from the issuing institution that it has decided not to extend the irrevocable standby letter of credit beyond the current expiration date, the executive director shall draw on the irrevocable standby letter of credit. The executive director may delay the drawing if the issuing institution grants an extension of the term of the letter of credit. During the last 30 days of any such extension, the executive director shall draw on the irrevocable standby letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this subchapter and obtain written approval of such assurance from the executive director.(i) Upon termination, in accordance with §37.61 of this title (relating to Termination of Mechanisms), the executive director shall return the irrevocable standby letter of credit to the issuing institution.</content><note type="source"><p>Source Note: The provisions of this §37.231 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scC/s37.241"><num value="37.241">§37.241</num><heading>Insurance</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance by obtaining insurance which conforms to the requirements of this section, in addition to the requirements specified in Subchapters A and B of this chapter (relating to General Financial Assurance Requirements and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action), and submitting an originally signed certificate to the executive director.(b) At a minimum, the insurer must be licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more states.(c) The wording of the certificate of insurance must be identical to the wording specified in §37.341 of this title (relating to Certificate of Insurance).(d) The insurance policy must be issued for a face amount at least equal to the current cost estimate for closure, post closure, or corrective action, except when a combination of mechanisms are used in accordance with §37.41 of this title (relating to Use of Multiple Financial Assurance Mechanisms) or §37.52 of this title (relating to Use of a Universal Financial Assurance Mechanism for Multiple Facilities and Program Areas). Actual payments by the insurer shall not change the face amount, although the insurer's future liability shall be lowered by the amount of the payments.(e) The insurance policy must guarantee that funds shall be available to provide for closure, post closure, or corrective action of the facility. The policy shall also guarantee that once closure, post closure, or corrective action begins, the issuer shall be responsible for paying out funds, up to an amount equal to the face amount of the policy, upon the direction of the executive director, to such party or parties as the executive director specifies.(f) An owner or operator or any other person authorized to perform closure, post closure, or corrective action may request reimbursement for closure, post closure, or corrective action expenditures by submitting itemized bills to the executive director. The request shall include an explanation of the expenses and all applicable itemized bills. The owner or operator may request reimbursement for partial closure only if the remaining value of the policy is sufficient to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for closure, post closure, or corrective action activities, the executive director shall determine whether the closure, post closure, or corrective action expenditures are in accordance with the approved closure, post closure, or corrective action activities or are otherwise justified, and if so, shall instruct the insurer to make reimbursement in such amounts as the executive director specifies in writing. If the executive director has reason to believe that the maximum cost of closure, post closure, or corrective action over the remaining life of the facility will be greater than the face amount of the policy, the executive director may withhold reimbursement of such amounts as deemed prudent until the executive director determines, in accordance with Subchapters A and B of this chapter, that the owner or operator is no longer required to maintain financial assurance requirements for closure, post closure, or corrective action of the facility. If the executive director does not instruct the insurer to make such reimbursements, the executive director shall provide the owner or operator with a detailed written statement of reasons.(g) The owner or operator must maintain the policy in full force and effect until the executive director consents to termination of the policy. Failure to pay the premium, without substitution of alternate financial assurance as specified in this subchapter, shall constitute a violation of these regulations, warranting such remedy as the executive director deems necessary. Such violation shall be deemed to begin upon receipt by the executive director of a notice of future cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the date of expiration of the policy.(h) The policy must provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy shall, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may elect to cancel, terminate, or fail to renew the policy by sending notice by certified mail to the owner or operator and the executive director. Cancellation, termination, or failure to renew may not occur, however, during 120 days beginning with the date of receipt of the notice by both the executive director and the owner or operator, as evidenced by the return receipts.(i) Cancellation, termination, or failure to renew may not occur and the policy shall remain in full force and effect in the event that on or before the date of expiration:(1) the executive director deems the facility abandoned; or(2) the permit expires, is terminated, is revoked, or a new or renewal permit is denied; or(3) closure is ordered by the executive director of the commission or by a United States district court or other court of competent jurisdiction; or(4) the owner or operator is named as debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), United States Code; or(5) the premium due is paid.(j) Each policy must contain a provision allowing assignment of the policy to a successor owner or operator. Such assignment may be conditional upon consent of the insurer, provided such consent is not unreasonably refused.(k) For insurance policies providing coverage for post closure, commencing on the date that liability to make payments pursuant to the policy accrues, the insurer will thereafter annually increase the face amount of the policy. Such increase must be equivalent to the face amount of the policy, less any payments made, multiplied by an amount equivalent to 85% of the most recent investment rate or of the equivalent coupon issue yield announced by the United States Treasury for 26-week Treasury securities.</content><note type="source"><p>Source Note: The provisions of this §37.241 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scC/s37.251"><num value="37.251">§37.251</num><heading>Financial Test</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance by establishing a financial test which conforms to the requirements of this section, in addition to the requirements specified in Subchapters A and B of this chapter (relating to General Financial Assurance Requirements and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action).(b) To pass this test, the owner or operator must meet the criteria of either paragraph (1) or (2) of this subsection:(1) the owner or operator must have:(A) two of the following three ratios: a ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; and(B) net working capital and tangible net worth each at least six times the sum of the current cost estimates, liability coverage requirements, and any other financial assurance obligations under the Texas Commission on Environmental Quality (TCEQ) or other federal or state environmental regulations assured by a financial test; and(C) tangible net worth of at least $10 million; and(D) assets located in the United States amounting to at least 90% of the owner's or operator's total assets or at least six times the sum of the current cost estimates, liability coverage requirements, and any other financial assurance obligations under the TCEQ or other federal or state environmental regulations assured by a financial test;(2) the owner or operator must have:(A) a current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's; and(B) tangible net worth at least six times the sum of the current cost estimates, liability coverage requirements, and any other financial assurance obligations under the TCEQ or other federal or state environmental regulations assured by a financial test; and(C) tangible net worth of at least $10 million; and(D) assets located in the United States amounting to at least 90% of the owner's or operator's total assets or at least six times the sum of the current cost estimates, liability coverage requirements, and any other financial assurance obligations under the TCEQ or other federal or state environmental regulations assured by a financial test.(c) To demonstrate that the requirements of the test are being met, the owner or operator shall submit the following items to the executive director:(1) a letter signed by the owner's or operator's chief financial officer worded identically to the wording specified in §37.351 of this title (relating to Financial Test). If an owner or operator is using the financial test to demonstrate assurance for closure, post closure, or corrective action as specified in Subchapter B of this chapter and liability coverage as specified in Subchapter E of this chapter (relating to Financial Assurance Requirements for Liability Coverage), the owner or operator must submit the letter specified in the Financial Test for Liability, Part B in §37.651 of this title (relating to Financial Test for Liability) to cover both forms of financial responsibility. A separate letter as specified in §37.351 of this title is not required; and(2) a copy of the owner's or operator's independently audited year-end financial statements for the latest fiscal year including the "unqualified opinion" of the auditor; and(3) a special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:(A) the accountant has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and(B) in connection with that procedure:(i) such amounts were found to be in agreement; or(ii) no matters came to the attention of the accountant which caused them to believe that the specified data should be adjusted; and(4) a written verification of the current bond rating from the applicable bond rating agency, if the owner or operator is using Alternative II of the letter signed by the owner's or operator's chief financial officer specified in §37.351 of this title; and(5) a schedule identifying intangible assets used to calculate tangible net worth.(d) After the initial submission of items specified in subsection (c) of this section, the owner or operator must send updated information to the executive director within 90 days after the close of each succeeding fiscal year. This information shall consist of all items specified in subsection (c) of this section.(e) If the owner or operator no longer meets the requirements of subsection (b) of this section, a notice shall be sent to the executive director of intent to establish alternate financial assurance as specified in this subchapter. The notice must be sent by certified mail within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements. The owner or operator shall provide the alternate financial assurance within 120 days after the end of such fiscal year.(f) The executive director may, based on a reasonable belief that the owner or operator may no longer meet the requirements of subsection (b) of this section, require reports of financial condition at any time from the owner or operator in addition to those specified in subsection (c) of this section. If the executive director finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of subsection (b) of this section, the owner or operator must provide alternate financial assurance as specified in this subchapter within 30 days after notification of such a finding.(g) The executive director may disallow use of this test on the basis of qualifications in the opinion expressed in the independent certified public accountant's report on examination of the owner's or operator's financial statements. An adverse opinion or disclaimer of opinion shall be cause for disallowance. The executive director shall evaluate other qualifications on an individual basis. The owner or operator shall provide alternate financial assurance as specified in this subchapter within 30 days after notification of the disallowance.</content><note type="source"><p>Source Note: The provisions of this §37.251 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scC/s37.261"><num value="37.261">§37.261</num><heading>Corporate Guarantee</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance for closure, post closure, or corrective action by obtaining a written guarantee, hereafter referred to as "corporate guarantee," which conforms to the requirements of this section, in addition to the requirements as specified in Subchapters A and B of this chapter (relating to General Financial Assurance Requirements and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action).(b) The guarantor shall be the direct or higher-tier parent corporation of the owner or operator or a corporation with a substantial business relationship with the owner or operator. The guarantor must meet the requirements for owners or operators as specified in §37.251 of this title (relating to Financial Test). The guarantor must comply with the terms of the corporate guarantee.(c) The wording of the corporate guarantee must be identical to the wording specified in §37.361 of this title (relating to Corporate Guarantee). The corporate guarantee shall accompany the items sent to the executive director as specified in §37.251(c) of this title.(d) If the guarantor has a substantial business relationship with the owner or operator, in addition to the requirements specified in this chapter for the financial test and corporate guarantee, the guarantor will submit a description of the substantial business relationship and the value received in consideration of the guarantee; an original or certified original copy of the Resolution by the Board of Directors or a certified letter from the chief financial officer, authorizing the corporate guarantee on behalf of the entity; an original or certified original copy of the Resolution by the Board of Directors authorizing the formation or acquisition of the guaranteed entity; an organizational chart which shows the relationship between the two entities; the partnership agreement or other agreements, articles, or bylaws which set out the formation, structure, and operation of the guaranteed entity. After the initial submission of these items to demonstrate a substantial business relationship, if there has been no change in the substantial business relationship, the chief financial officer may submit a letter attesting that there has been no change.(e) The terms of the corporate guarantee shall provide that:(1) if the owner or operator fails to perform closure, post closure, or corrective action at the facility(ies) covered by the corporate guarantee in accordance with the permits and other applicable requirements whenever required to do so, the guarantor shall do so or establish a trust fund as specified in §37.201 of this title (relating to Trust Fund) in the name of the owner or operator in the amount of the current cost estimate;(2) the corporate guarantee shall remain in force unless the guarantor sends notice of termination by certified mail to the owner or operator and the executive director and the owner or operator has obtained, and the executive director has approved, alternative financial assurance; and(3) if the owner or operator fails to provide alternate financial assurance as specified in this subchapter and obtain the written approval of such alternate assurance from the executive director within 90 days after receipt by both the owner or operator and the executive director of a notice of termination of the corporate guarantee from the guarantor, the guarantor shall provide such alternate financial assurance in the name of the owner or operator.</content><note type="source"><p>Source Note: The provisions of this §37.261 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective October 7, 1999, 24 TexReg 8555; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scC/s37.271"><num value="37.271">§37.271</num><heading>Local Government Financial Test</heading><content>An owner or operator may satisfy the requirements of financial assurance for closure, post closure, or corrective action by establishing a local government financial test or a local government financial test and local government guarantee, which conforms to the requirements of this section, in addition to the requirements specified in Subchapters A and B of this chapter (relating to General Financial Assurance Requirements; and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action). An owner or operator who satisfies the requirements of paragraphs (1) - (3) of this section may demonstrate financial assurance up to the amount specified in paragraph (4) of this section.(1) In order to satisfy the financial component of the test, the owner or operator must meet the criteria of either subparagraph (A) or (B) of this paragraph and in addition must meet certain general conditions outlined in subparagraph (C) of this paragraph.(A) The owner or operator must satisfy each of the following financial ratios based on its most recent audited annual financial statement:(i) a ratio of cash plus marketable securities to total expenditures greater than or equal to 0.05; and(ii) a ratio of annual debt service to total expenditures less than or equal to 0.20.(B) If the owner or operator:(i) of a facility other than a municipal solid waste landfill has outstanding, rated, general obligation bonds that are not secured by insurance, a letter of credit, or other collateral or guarantee, those bonds must have a current rating of Aaa, Aa, A, or Baa, as issued by Moody's, or AAA, AA, A, or BBB, as issued by Standard and Poor's on all such general obligation bonds; or(ii) of a municipal solid waste landfill subject to Chapter 330 of this title (relating to Municipal Solid Waste) has bonds as defined in Subchapter R of this chapter (relating to Financial Assurance for Municipal Solid Waste Facilities) and those bonds are not secured by insurance, a letter of credit, or other collateral or guarantee, those bonds must have a current rating of Aaa, Aa, A, or Baa, as issued by Moody's, or AAA, AA, A, or BBB, as issued by Standard and Poor's on all such financial obligations.(C) In addition to meeting the criteria listed under subparagraph (A) or (B) of this paragraph, the following general conditions must be met.(i) The owner or operator shall prepare its financial statements in conformity with Generally Accepted Accounting Principles for governments and have its financial statements audited by an independent certified public accountant (or appropriate state agency).(ii) The owner or operator must not have operated at a deficit equal to 5.0% or more of total annual revenue in each of the past two fiscal years.(iii) The owner or operator must not currently be in default on any outstanding general obligation bonds.(iv) The owner or operator must not have any outstanding general obligation bonds rated lower than Baa as issued by Moody's or BBB as issued by Standard and Poor's.(v) The owner or operator must not have received an adverse opinion, disclaimer of opinion, or other qualified opinion from the independent certified public accountant (or appropriate state agency) auditing its financial statements as required under clause (i) of this subparagraph. However, the executive director may evaluate qualified opinions on a case-by-case basis and allow use of the financial test in cases where the executive director deems the qualification insufficient to warrant disallowance of use of the test.(D) The following terms used in this section are defined as follows.(i) Deficit equals total annual revenues minus total annual expenditures.(ii) Total revenues is the sum of the following seven items:(I) "Total Revenues" of the General Fund;(II) "Total Revenues" of Special Revenue Funds;(III) "Total Revenues" of the Debt Service Fund;(IV) "Total Revenues" of Capital Project Funds;(V) "Total Operating Revenues" of Enterprise Funds;(VI) if positive, "Total Non-Operating Revenues (Net)" of Enterprise Funds; and(VII) if positive, "Total Non-Operating Revenues (Net)" of Internal Service Funds.(iii) Total expenditures is the sum of the following six items:(I) "Total Expenditures" of the General Fund;(II) "Total Expenditures" of Special Revenue Funds;(III) "Total Expenditures" of the Debt Service Fund;(IV) "Total Operating Expenses Before Depreciation" of Enterprise Funds;(V) if negative, "Total Non-Operating Revenues (Net)" of Enterprise Funds; and(VI) if negative, "Total Non-Operating Revenues (Net)" of Internal Service Funds; except if the local government is not using accrual accounting and is not including depreciation in its expenditures, include routine capital outlays and debt repayment as a substitute for depreciation.(iv) Cash and current investments is the sum of "Cash," "Cash Equivalents" (e.g., bank deposits, very short-term debt securities, money market funds), and "Current Investments" (e.g., interest or dividend bearing securities that are expected to be held for less than one year), in the General Fund, Special Revenue Funds, Debt Service Fund, Enterprise Funds, and Internal Service Funds, as reported on the Comprehensive Annual Financial Report's (CAFR) Combined Balance Sheet. Note that cash, cash equivalents, and current investments are included in this term even if they are: pooled; with a fiscal agent; or restricted, provided that the assets belong to the General Fund, Special Revenue Funds, Debt Service Fund, Enterprise Funds, and Internal Service Funds. Specifically excluded from this definition are accounts receivable, retirement assets, real property, fixed assets, and other non-current assets, as well as any assets (including cash) in Capital Project Funds.(v) Debt service is the sum of all amounts in any Debt Service category (including bond principal, other debt principal, interest on bonds, interest on other debt) in the General Fund, Special Revenue Funds, Debt Service Fund, and Capital Projects Funds as reported on the CAFR's Combined Statement of Revenues, Expenditures and Changes in Fund Balances/Equity; plus all principal and interest expense in Enterprise Funds and Internal Service Funds, as reported on the CAFR's Combined Statement of Revenues, Expenses and Changes in Retained Earnings/Fund Balances.(2) In order to satisfy the public notice component of the test, the local government owner or operator must place a reference to the closure, post closure, or corrective action costs assured through the financial test into its next CAFR after the effective date of this section or prior to the initial receipt of waste at the facility, whichever is later. Disclosure must include the nature and source of closure, post closure, or corrective action requirements; the reported liability at the balance sheet date; the estimated total closure or post closure cost remaining to be recognized; the percentage of landfill capacity used to date; and the estimated landfill life in years. A reference to corrective action costs must be placed in the CAFR not later than 120 days after the corrective action remedy has been selected in accordance with the requirements of §330.415 of this title (relating to Implementation of the Corrective Action Program). For the first year the financial test is used to assure costs at a particular facility, the reference may instead be placed in the operating record until issuance of the next available CAFR if timing does not permit the reference to be incorporated into the most recently issued CAFR or budget. For closure and post closure costs, conformance with Government Accounting Standards Board Statement 18 assures compliance with the public notice component.(3) In order to satisfy the recordkeeping and reporting component of the test, the local government owner or operator must submit the following four items to the executive director:(A) a letter signed by the local government's chief financial officer worded as specified in §37.371 of this title (relating to Local Government Financial Test) that:(i) lists all the current cost estimates covered by a financial test as described in paragraph (4) of this section;(ii) provides evidence and certifies that the local government meets the conditions of either paragraph (1)(A) or (B), and (1)(C) of this section; and(iii) certifies that the local government meets the conditions of paragraphs (2) and (4) of this section;(B) the local government's independently audited year-end financial statements for the latest fiscal year, including the unqualified opinion of the auditor. The auditor must be an independent certified public accountant (CPA) or an appropriate state agency that conducts equivalent comprehensive audits;(C) a report to the local government from the local government's independent CPA or the appropriate state agency which:(i) is based on performing an agreed upon procedures engagement relative to the financial ratios required by paragraph (1)(A) of this section, if applicable, and the requirements of paragraph (1)(C)(i), (ii), and (v) of this section; and(ii) the CPA or state agency's report states the procedures performed and the CPA or state agency's findings; and(D) a copy of the CAFR used to comply with paragraph (2) of this section and certification that the requirements of General Accounting Standards Board Statement 18 have been met.(4) The portion of the closure, post closure, or corrective action costs for which an owner or operator can assure under this paragraph is determined as follows.(A) If the local government owner or operator does not assure other environmental obligations through a financial test, it may assure closure, post closure, or corrective action costs that equal up to 43% of the local government's total annual revenue.(B) If the local government owner or operator assures other environmental obligations through a financial test, including, but not limited to, those associated with hazardous waste treatment, storage, and disposal facilities under Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste) and 40 Code of Federal Regulations (CFR) Parts 264 and 265, petroleum underground storage tank facilities under Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks) and 40 CFR Part 280, underground injection control facilities under Chapter 331 of this title (relating to Underground Injection Control) and 40 CFR §144.62, polychlorinated biphenyl storage facilities under 40 CFR Part 761, it must add those costs to the closure, post closure, or corrective action costs it seeks to assure under this paragraph. The total that may be assured must not exceed 43% of the local government's total annual revenue.(5) Annual updates of the financial test documentation must be submitted to the executive director within 180 days after the close of each succeeding fiscal year. This information must consist of all the items required under paragraph (3) of this section.(6) A local government must satisfy the requirements of the financial test at the close of each fiscal year. If the local government owner or operator no longer meets the requirements of paragraphs (1) - (4) of this section, the local government must send notice to the executive director of intent to establish alternate financial assurance. This notice must be sent within 90 days after the end of the fiscal year for which the year-end financial data shows that the local government no longer meets the requirements. The local government must provide alternate financial assurance within 120 days after the end of such fiscal year.(7) The local government is no longer required to comply with the requirements of this section when the conditions as specified in §37.61 of this title (relating to Termination of Mechanisms) are met.(8) The executive director, based on a reasonable belief that the local government owner or operator may no longer meet the requirements of the local government financial test, may require additional reports of financial condition from the local government at any time. If the executive director finds on the basis of such reports or other information, that the local government owner or operator no longer meets the requirements of the financial test, the local government must provide alternate financial assurance as specified in this subchapter within 30 days after notification of such a finding.</content><note type="source"><p>Source Note: The provisions of this §37.271 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective September 14, 2006, 31 TexReg 7353.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scC/s37.281"><num value="37.281">§37.281</num><heading>Local Government Guarantee</heading><content>An owner or operator may satisfy the requirements of financial assurance for closure, post closure, or corrective action by obtaining a local government guarantee provided by a local government. The local government guarantee must meet the requirements of this section, in addition to the requirements in Subchapters A and B of this chapter (relating to General Financial Assurance Requirements and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action). The local government guarantor must meet the requirements of the local government financial test in §37.271 of this title (relating to Local Government Financial Test) and must comply with the following terms of the local government guarantee.(1) If the owner or operator fails to perform closure, post closure, or corrective action of a facility covered by the guarantee, the guarantor will:(A) perform, or pay a third party to perform, closure, post closure, or corrective action as required; or(B) establish a fully funded trust fund as specified in §37.201 of this title (relating to Trust Fund) in the name of the owner or operator.(2) The guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the executive director. Cancellation may not occur, however, during the 120 days beginning on the date of the receipt of the notice of cancellation by both the owner or operator and the executive director, as evidenced by the return receipts.(3) If a guarantee is canceled, the owner or operator must, within 90 days following receipt of the cancellation notice by the owner or operator and the executive director, obtain alternate financial assurance and submit evidence of that alternate financial assurance to the executive director. If the owner or operator fails to provide alternate financial assurance within the 90-day period, the guarantor must provide that alternate assurance within 120 days following the guarantor's notice of cancellation.(4) The owner or operator must submit to the executive director an originally signed local government guarantee worded as specified in §37.381 of this title (relating to Local Government Guarantee) along with the items required in §37.271(3) of this title. The items must be updated annually in accordance with the requirements of the local government financial test.(5) The owner or operator is no longer required to comply with the requirements of this section when the conditions as specified in §37.61 of this title (relating to Termination of Mechanisms) are met.(6) If a local government guarantor no longer meets the requirements of §37.271 of this title, the owner or operator must, within 90 days, obtain alternate financial assurance, and submit such evidence of the alternate financial assurance to the executive director. If the owner or operator fails to obtain alternate financial assurance within that 90-day period, the guarantor must provide that alternate financial assurance within the next 30 days.</content><note type="source"><p>Source Note: The provisions of this §37.281 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scD"><num value="D">SUBCHAPTER D</num><heading>WORDING OF THE MECHANISMS FOR CLOSURE, POST CLOSURE, AND CORRECTIVE ACTION</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scD/s37.301"><num value="37.301">§37.301</num><heading>Trust Agreement</heading><content>(a) A trust agreement for closure, post closure, or corrective action, as specified in §37.201 of this title (relating to Trust Fund), must be worded as specified in the Trust Agreement in this subsection, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic(b) The Certification of Acknowledgment in this subsection is the certification of acknowledgment which must accompany the trust agreement for a trust fund as specified in §37.201 of this title. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.301 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scD/s37.311"><num value="37.311">§37.311</num><heading>Payment Bond</heading><content>A surety bond guaranteeing payment for closure, post closure, or corrective action, as specified in §37.211 of this title (relating to Surety Bond Guaranteeing Payment), must be worded as specified in the Payment Bond in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.311 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scD/s37.321"><num value="37.321">§37.321</num><heading>Performance Bond</heading><content>A surety bond guaranteeing performance for closure, post closure, or corrective action, as specified in §37.221 of this title (relating to Surety Bond Guaranteeing Performance), must be worded as specified in the Performance Bond in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.321 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scD/s37.331"><num value="37.331">§37.331</num><heading>Irrevocable Standby Letter of Credit</heading><content>An irrevocable standby letter of credit for closure, post closure, or corrective action, as specified in §37.231 of this title (relating to Irrevocable Standby Letter of Credit), must be worded as specified in the Irrevocable Standby Letter of Credit in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.331 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scD/s37.341"><num value="37.341">§37.341</num><heading>Certificate of Insurance</heading><content>A certificate of insurance for closure, post closure, or corrective action, as specified in §37.241 of this title (relating to Insurance), must be worded as specified in the Certificate of Insurance in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.341 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scD/s37.351"><num value="37.351">§37.351</num><heading>Financial Test</heading><content>A letter from the chief financial officer for closure, post closure, or corrective action, as specified in §37.251 of this title (relating to Financial Test), must be worded as specified in the Financial Test in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.351 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scD/s37.361"><num value="37.361">§37.361</num><heading>Corporate Guarantee</heading><content>A corporate guarantee for closure, post closure, or corrective action, as specified in §37.261 of this title (relating to Corporate Guarantee), must be worded as specified in the Corporate Guarantee in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.361 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scD/s37.371"><num value="37.371">§37.371</num><heading>Local Government Financial Test</heading><content>A letter signed by the local government's chief financial officer, as specified in §37.271 of this title (relating to Local Government Financial Test) must be worded as specified in the Local Government Financial Test in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.371 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196; amended to be effective September 14, 2006, 31 TexReg 7353.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scD/s37.381"><num value="37.381">§37.381</num><heading>Local Government Guarantee</heading><content>The local government guarantee, as specified in §37.281 of this title (relating to Local Government Guarantee), must be worded as specified in the Local Government Guarantee in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.381 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scE"><num value="E">SUBCHAPTER E</num><heading>FINANCIAL ASSURANCE REQUIREMENTS FOR LIABILITY COVERAGE</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scE/s37.400"><num value="37.400">§37.400</num><heading>Applicability</heading><content>This subchapter applies to an owner or operator required to provide financial assurance for sudden or nonsudden liability coverage.</content><note type="source"><p>Source Note: The provisions of this §37.400 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scE/s37.402"><num value="37.402">§37.402</num><heading>Definitions</heading><content>In the liability insurance requirements, the terms "bodily injury" and "property damage" shall have the meanings given these terms by applicable state law. However, these terms do not include those liabilities which, consistent with standard industry practices, are excluded from coverage in liability policies for bodily injury and property damage. The agency intends the meanings of other terms used in the liability insurance requirements to be consistent with their common meanings within the insurance industry. The following definitions given of several of the terms are intended to assist in the understanding of these regulations and are not intended to limit their meanings in a way that conflicts with general insurance industry usage.(1) Accidental occurrence - An accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.(2) Legal defense costs - Any expenses that an insurer incurs in defending against claims of third parties brought under the terms and conditions of an insurance policy.(3) Nonsudden accidental occurrence - An occurrence which takes place over time and involves continuous or repeated exposure.(4) Sudden accidental occurrence - An occurrence which is not continuous or repeated in nature.</content><note type="source"><p>Source Note: The provisions of this §37.402 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scE/s37.404"><num value="37.404">§37.404</num><heading>Liability Requirements for Sudden and Nonsudden Accidental Occurrences</heading><content>(a) An owner or operator shall establish liability coverage for bodily injury and property damage to third parties caused by sudden or nonsudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator shall have and maintain liability coverage for sudden or nonsudden accidental occurrences, exclusive of legal defense costs. The owner or operator shall choose from one or more mechanisms as specified in Subchapter F of this chapter (relating to Financial Assurance Mechanisms for Liability) to meet the liability requirements for sudden or nonsudden accidental occurrences.(b) An owner or operator shall notify the executive director in writing within 30 days whenever:(1) a claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial assurance mechanism authorized in Subchapter F of this chapter; or(2) a Certification of Valid Claim for bodily injury or property damage caused by a sudden or nonsudden accidental occurrence arising from the operation of a facility is entered between the owner or operator and third-party claimant for liability coverage under Subchapter F of this chapter; or(3) a final court order establishing a judgment for bodily injury or property damage caused by a sudden or nonsudden accidental occurrence arising from the operation of a facility is issued against the owner or operator, or a financial assurance mechanism that is providing financial assurance for liability coverage under Subchapter F of this chapter.</content><note type="source"><p>Source Note: The provisions of this §37.404 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scE/s37.411"><num value="37.411">§37.411</num><heading>Adjustments to the Level of Liability Coverage</heading><content>If the executive director determines that the levels of financial responsibility required are not consistent with the degree and duration of risk associated with the facility or group of facilities, the executive director may adjust the levels of financial responsibility required for liability coverage as may be necessary to protect human health and the environment. An owner or operator must furnish to the executive director, within 30 days, any information which the executive director requests to determine whether cause exists for such adjustments of level of coverage. Any adjustment to the amount of financial assurance due to a change in the degree and duration of risk associated with the permitted facility will be treated as a permit modification.</content><note type="source"><p>Source Note: The provisions of this §37.411 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scF"><num value="F">SUBCHAPTER F</num><heading>FINANCIAL ASSURANCE MECHANISMS FOR LIABILITY</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scF/s37.501"><num value="37.501">§37.501</num><heading>Trust Fund for Liability</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance for liability as specified in Subchapter E of this chapter (relating to Financial Assurance Requirements for Liability Coverage) by establishing a fully funded trust fund that conforms to the requirements of this section, in addition to the requirements specified in Subchapter A of this chapter (relating to General Financial Assurance Requirements), and submitting an originally signed duplicate of the executed trust agreement to the executive director.(b) The trustee shall be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency.(c) The wording of the trust agreement must be identical to the wording specified in §37.601(a) of this title (relating to Trust Agreement for Liability), including a formal certification of acknowledgment as specified in §37.601(b) of this title.(d) The trust fund for liability shall be funded for the full amount of the liability coverage to be provided by the trust before it may be relied upon to satisfy the requirements of financial assurance for liability. If at any time after the trust is created the amount of funds in the trust is reduced below the full amount of the liability coverage to be provided, the owner or operator, by the anniversary date of the establishment of the trust, shall either add sufficient funds to the trust to cause its value to equal the full amount of liability coverage to be provided, or obtain another financial assurance mechanism as specified in this subchapter to cover the difference. For purposes of this section, "the full amount of liability coverage to be provided" means the amount of coverage for sudden and/or nonsudden accidental occurrences required to be provided less the amount of financial assurance for liability coverage being provided by other financial assurance mechanisms being used to demonstrate financial assurance by the owner or operator.(e) If the value of the trust fund is greater than the total amount of the required liability coverage, the owner or operator may submit a written request to the executive director for release of the amount in excess of the required liability coverage.(f) If an owner or operator substitutes other financial assurance as specified in this subchapter for all or part of the trust fund, the owner or operator may submit a written request to the executive director for release of the amount in excess of the required liability coverage as covered by the trust fund.(g) Within 60 days after receiving a request from the owner or operator for release of funds as specified in subsection (e) or (f) of this section, the executive director, if the request is approved, shall instruct the trustee in writing to release to the owner or operator such funds.</content><note type="source"><p>Source Note: The provisions of this §37.501 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scF/s37.511"><num value="37.511">§37.511</num><heading>Surety Bond Guaranteeing Payment for Liability</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance for liability as specified in Subchapter E of this chapter (relating to Financial Assurance Requirements for Liability Coverage) by obtaining a surety bond which conforms to the requirements of this section, in addition to the requirements specified in Subchapter A of this chapter (relating to General Financial Assurance Requirements), and submitting a signed duplicate original of the bond to the executive director.(b) The surety company issuing the bond shall be among those listed as acceptable sureties on Federal bonds in the most recent Circular 570 of the United States Department of the Treasury.(c) The wording of the surety bond must be identical to the wording specified in §37.611 of this title (relating to Payment Bond for Liability).(d) A surety bond may be used to satisfy the requirements of Subchapter E of this chapter only if the Attorneys General or Insurance Commissioners of the state in which the surety is incorporated, and the State of Texas have submitted a written statement to the executive director that a surety bond executed as described in this subchapter and §37.611 of this title is a legally valid and enforceable obligation in that state.</content><note type="source"><p>Source Note: The provisions of this §37.511 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scF/s37.521"><num value="37.521">§37.521</num><heading>Irrevocable Standby Letter of Credit for Liability</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance for liability as specified in Subchapter E of this chapter (relating to Financial Assurance Requirements for Liability Coverage) by obtaining an irrevocable standby letter of credit which conforms to the requirements of this section, in addition to the requirements specified in Subchapter A of this chapter (relating to General Financial Assurance Requirements), and submitting an originally signed irrevocable standby letter of credit to the executive director.(b) The financial institution issuing the irrevocable standby letter of credit shall be an entity that has the authority to issue irrevocable standby letters of credit and whose letter of credit operations are regulated and examined by a federal or state agency.(c) The wording of the irrevocable standby letter of credit must be identical to the wording specified in §37.621 of this title (relating to Irrevocable Standby Letter of Credit for Liability).(d) An owner or operator who uses an irrevocable standby letter of credit to satisfy the requirements of this section may also establish a standby trust fund. Under the terms of such a letter of credit, all amounts paid pursuant to a draft by the trustee of the standby trust will be deposited by the issuing institution into the standby trust in accordance with instructions from the trustee. The trustee of the standby trust fund must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency.(e) The wording of the standby trust fund must be identical to the wording specified in §37.671 of this title (relating to Standby Trust Agreement).</content><note type="source"><p>Source Note: The provisions of this §37.521 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scF/s37.531"><num value="37.531">§37.531</num><heading>Insurance for Liability</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance for liability as specified in Subchapter E of this chapter (relating to Financial Assurance Requirements for Liability Coverage) by obtaining insurance which conforms to the requirements of this section, in addition to the requirements specified in Subchapter A of this chapter (relating to General Financial Assurance Requirements), and submitting a signed duplicate original of the endorsement or certificate of insurance to the executive director.(b) At a minimum, the insurer must be licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more states.(c) The wording of the certificate of insurance must be identical to the wording specified in §37.631 of this title (relating to Certificate of Insurance for Liability). The wording of the endorsement must be identical to the wording specified in §37.641 of this title (relating to Endorsement for Liability).(d) The insurance policy shall be amended by attachment of the Endorsement for Liability or evidenced by a Certificate of Insurance for Liability. If requested by the executive director, the owner or operator shall provide a signed duplicate original of the insurance policy.</content><note type="source"><p>Source Note: The provisions of this §37.531 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scF/s37.541"><num value="37.541">§37.541</num><heading>Financial Test for Liability</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance for liability as specified in Subchapter E of this chapter (relating to Financial Assurance Requirements for Liability Coverage) by demonstrating that it passes a financial test which conforms to the requirements of this section, in addition to the requirements specified in Subchapter A of this chapter (relating to General Financial Assurance Requirements).(b) To pass this test, the owner or operator must meet the criteria of either paragraph (1) or (2) of this subsection:(1) the owner or operator must have:(A) net working capital and tangible net worth each at least six times the amount of liability coverage to be demonstrated by this test; and(B) tangible net worth of at least $10 million; and(C) assets in the United States amounting to either:(i) at least 90% of his total assets; or(ii) at least six times the amount of liability coverage to be demonstrated by this test.(2) the owner or operator must have:(A) a current rating for the owner's or operator's most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's; and(B) tangible net worth of at least $10 million; and(C) tangible net worth at least six times the amount of liability coverage to be demonstrated by this test; and(D) assets in the United States amounting to either:(i) at least 90% of his total assets; or(ii) at least six times the amount of liability coverage to be demonstrated by this test.(c) The phrase "amount of liability coverage" refers to the annual aggregate amounts for which coverage is required for sudden or nonsudden liability.(d) To demonstrate that the owner or operator meets this test, the owner or operator shall submit the following items to the executive director:(1) a letter signed by the owner's or operator's chief financial officer and worded as specified in the Financial Test for Liability, Part A, §37.651 of this title (relating to Financial Test for Liability). An owner or operator using the financial test to demonstrate assurance for closure, post closure, or corrective action as specified in Subchapter B of this chapter (relating to Financial Assurance Requirements for Closure, Post Closure, and Corrective Action), and liability coverage must submit the letter specified in the Financial Test for Liability, Part B, §37.651 of this title to cover both forms of financial responsibility. A separate letter as specified in §37.351 of this title (relating to Financial Test) is not required; and(2) a copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and(3) a special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:(A) the accountant has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and(B) in connection with that procedure:(i) such amounts were found to be in agreement; or(ii) no matters came to the attention of the independent certified public accountant which indicated that the specified data should be adjusted.(e) After the initial submission of items specified in subsection (d) of this section, the owner or operator shall send updated information to the executive director within 90 days after the close of each succeeding fiscal year. This information shall consist of all three items specified in subsection (d) of this section.(f) If the owner or operator no longer meets the requirements of subsection (b) of this section, the owner or operator must obtain alternate financial assurance as specified in this subchapter for the entire amount of required liability coverage. Evidence of liability coverage must be submitted to the executive director within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the test requirements.(g) The executive director may, based on a reasonable belief that the owner or operator may no longer meet the requirements of subsection (b) of this section, require reports of financial condition at any time from the owner or operator in addition to those specified in subsection (d) of this section. If the executive director finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of subsection (b) of this section, the owner or operator shall provide alternate financial assurance as specified in this subchapter within 30 days after notification of such a finding.(h) The executive director may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant's report on examination of the owner's or operator's financial statements. An adverse opinion or disclaimer of opinion shall be cause for disallowance. The executive director shall evaluate other qualifications on an individual basis. The owner or operator shall provide alternate financial assurance as specified in this subchapter within 30 days after notification of the disallowance.</content><note type="source"><p>Source Note: The provisions of this §37.541 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scF/s37.551"><num value="37.551">§37.551</num><heading>Corporate Guarantee for Liability</heading><content>(a) An owner or operator may meet the requirements of financial assurance for liability as specified in Subchapter E of this chapter (relating to Financial Assurance Requirements for Liability Coverage) by obtaining a written guarantee for liability coverage, hereinafter referred to as "corporate guarantee," which conforms to the requirements of this section, in addition to the requirements as specified in Subchapter A of this chapter (relating to General Financial Assurance Requirements).(b) The guarantor must be the direct or higher-tier parent corporation of the owner or operator or a corporation with a substantial business relationship with the owner or operator. The guarantor must meet the requirements for owners or operators as specified in §37.541 of this title (relating to Financial Test for Liability). The guarantor must comply with the terms of the corporate guarantee.(c) The wording of the corporate guarantee must be identical to the wording specified in §37.661 of this title (relating to Corporate Guarantee for Liability). The corporate guarantee shall accompany the items sent to the executive director as specified in §37.541(d) of this title.(d) If the guarantor has a substantial business relationship with the owner or operator, in addition to the requirements specified in this chapter for the financial test and corporate guarantee, the guarantor will submit the following:(1) a description of the substantial business relationship and the value received in consideration of the guarantee;(2) an original or certified original copy of the Resolution by the Board of Directors or a certified letter from the chief financial officer, authorizing the corporate guarantee on behalf of the entity;(3) an original or certified original copy of the Resolution by the Board of Directors authorizing the formation or acquisition of the guaranteed entity;(4) an organizational chart which shows the relationship between the two entities; and(5) the partnership agreement or other agreements, articles, or bylaws which set out the formation, structure, and operation of the guaranteed entity.(e) After the initial submission of the items required in subsection (d) of this section, the chief financial officer may submit a letter attesting that there has been no change, to demonstrate a substantial business relationship, if there has been no change in the substantial business relationship.(f) The terms of the corporate guarantee shall provide that if the owner or operator fails to satisfy a judgement based on a determination of liability for bodily injury or property damage to third parties caused by sudden or nonsudden accidental occurrences (or both, as the case may be), arising from the operation of facilities covered by this corporate guarantee, or fails to pay an amount agreed to in settlement of claims arising from or alleged to arise from such injury or damage, the guarantor shall do so up to the limits of coverage.(g) In the case of corporations incorporated in the United States, a guarantee may be used to satisfy the requirements of this section only if the Attorneys General or Insurance Commissioners of:(1) the state in which the guarantor is incorporated; and(2) each state in which a facility covered by the guarantee is located have submitted a written statement to the commission that a guarantee executed as described in this section and §37.661 of this title is a legally valid and enforceable obligation in that state.(h) In the case of corporations incorporated outside the United States (U.S.), a guarantee may be used to satisfy the requirements of this section only if:(1) the non-U.S. corporation has identified a registered agent for service of process in each state in which a facility covered by the guarantee is located and in the state in which it has its principal place of business; and(2) the Attorneys General or Insurance Commissioners of each state in which a facility covered by the guarantee is located and the state in which the guarantor corporation has its principal place of business, has submitted a written statement to the commission that a guarantee executed as described in this section and §37.661 of this title is a legally valid and enforceable obligation in that state.</content><note type="source"><p>Source Note: The provisions of this §37.551 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective October 7, 1999, 24 TexReg 8555; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scG"><num value="G">SUBCHAPTER G</num><heading>WORDING OF THE MECHANISMS FOR LIABILITY</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scG/s37.601"><num value="37.601">§37.601</num><heading>Trust Agreement for Liability</heading><content>(a) A trust agreement for a liability trust fund, as specified in §37.501 of this title (relating to Trust Fund for Liability), must be worded as specified in the Trust Agreement in this subsection, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic(b) A Certification of Acknowledgement must be worded as specified in the Certification of Acknowledgement in this subsection and must accompany the trust agreement for a trust fund as specified in §37.501 of this title. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.601 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scG/s37.611"><num value="37.611">§37.611</num><heading>Payment Bond for Liability</heading><content>A surety bond guaranteeing payment for liability, as specified in §37.511 of this title (relating to Surety Bond Guaranteeing Payment for Liability), must be worded as specified in the Payment Bond for Liability in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.611 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scG/s37.621"><num value="37.621">§37.621</num><heading>Irrevocable Standby Letter of Credit for Liability</heading><content>An irrevocable standby letter of credit for liability, as specified in §37.521 of this title (relating to Irrevocable Standby Letter of Credit for Liability), must be worded as specified in the Irrevocable Standby Letter of Credit for Liability in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.621 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scG/s37.631"><num value="37.631">§37.631</num><heading>Certificate of Insurance for Liability</heading><content>A certificate of liability insurance, as specified in §37.531 of this title (relating to Insurance for Liability), must be worded as specified in the Certificate of Insurance for Liability in this section, except that instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.631 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scG/s37.641"><num value="37.641">§37.641</num><heading>Endorsement for Liability</heading><content>A liability endorsement as specified in §37.531 of this title (relating to Insurance for Liability), must be worded as specified in the Endorsement for Liability in this section, except that instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.641 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scG/s37.651"><num value="37.651">§37.651</num><heading>Financial Test for Liability</heading><content>A letter from the chief financial officer for liability, as specified in §37.541 of this title (relating to Financial Test for Liability) must be worded as specified in the Financial Test for Liability in this section, except that instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.651 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scG/s37.661"><num value="37.661">§37.661</num><heading>Corporate Guarantee for Liability</heading><content>A corporate guarantee for liability as specified in §37.551 of this title (relating to Corporate Guarantee for Liability) must be worded as specified in the Corporate Guarantee for Liability in this section, except that instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.661 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scG/s37.671"><num value="37.671">§37.671</num><heading>Standby Trust Agreement</heading><content>(a) A standby trust agreement for liability, as specified in §37.521 of this title (relating to Irrevocable Standby Letter of Credit for Liability), must be worded as specified in the Standby Trust Agreement in this subsection, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic(b) A certification of acknowledgment must be worded as specified in the Certification of Acknowledgment in this subsection and must accompany the trust agreement for a standby trust fund as specified in this chapter. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.671 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective February 13, 2003, 28 TexReg 1196.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scI"><num value="I">SUBCHAPTER I</num><heading>FINANCIAL ASSURANCE FOR PETROLEUM UNDERGROUND STORAGE TANK SYSTEMS</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.801"><num value="37.801">§37.801</num><heading>Applicability</heading><content>(a) This subchapter applies to an owner and operator of a petroleum underground storage tank (UST) system required to provide financial assurance under Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks). This subchapter establishes requirements and mechanisms for demonstrating financial assurance for corrective action and third party liability.(b) State and federal governmental entities whose debts and liabilities are the debts and liabilities of a state or the United States are exempt from the requirements of this subchapter.(c) If the owner and operator of a petroleum UST are separate persons, only one person is required to demonstrate financial assurance; however, both parties are liable in the event of noncompliance.</content><note type="source"><p>Source Note: The provisions of this §37.801 adopted to be effective November 23, 2000, 25 TexReg 11399.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.802"><num value="37.802">§37.802</num><heading>Definitions</heading><content>General agency terms are defined in Chapter 3 of this title (relating to Definitions). Definitions for financial assurance terms that appear throughout this subchapter may alternatively be found in §37.11 of this title (relating to Definitions) or in §37.402 of this title (relating to Definitions). Petroleum UST specific terms may be found in Chapter 334, Subchapter A, §334.2 of this title (relating to Definitions). When used in this subchapter, the following terms shall have the meanings given below, unless otherwise specified.(1) Accidental release--Any sudden or nonsudden release of petroleum from an UST that results in a need for corrective action and/or compensation for bodily injury or property damage neither expected nor intended by the tank owner or operator.(2) Bodily injury--The meaning given to this term by applicable state law; however, this term shall not include those liabilities which, consistent with standard insurance industry practices, are excluded from coverage in liability insurance policies for bodily injury.(3) Chief financial officer--In the case of local government owners and operators, the individual with the overall authority and responsibility for the collection, disbursement, and use of funds by the local government.(4) Controlling interest--Direct ownership of at least 50% of the voting stock of another entity.(5) Financial reporting year--The latest consecutive twelve-month period for which any of the following reports used to support a financial test is prepared:(A) a 10-K report submitted to the United States Securities and Exchange Commission;(B) an annual report of tangible net worth submitted to Dun and Bradstreet; or(C) annual reports submitted to the Energy Information Administration or the Rural Electrification Administration. Financial reporting year may thus comprise a fiscal or calendar year period.(6) Legal defense cost--any expense that an owner or operator or provider of financial assurance incurs in defending against claims or actions brought:(A) by United States Environmental Protection Agency or a state to require corrective action or to recover the costs of corrective action;(B) by or on behalf of a third party for bodily injury or property damage caused by an accidental release; or(C) by any person to enforce the terms of a financial assurance mechanism.(7) Local government--The meaning given this term by applicable state law. The term includes:(A) counties, municipalities, townships, separately chartered and operated special districts (including local government public transit systems and redevelopment authorities), and independent school districts authorized as governmental bodies by state charter or constitution; and(B) special districts and independent school districts established by counties, municipalities, townships, and other general purpose governments to provide essential services.(8) Occurrence--An accident, including continuous or repeated exposure to conditions, which result in a release from an UST.(9) Property damage--The meaning given this term by applicable state law. This term shall not include those liabilities which, consistent with standard insurance industry practices, are excluded from coverage in liability insurance policies for property damage. However, exclusions for property damage shall not include corrective action associated with releases from tanks where covered by the policy.(10) Provider of financial assurance--An entity that provides financial assurance to an owner or operator of an UST through one of the approved mechanisms.(11) Substantial governmental relationship--The extent of a governmental relationship necessary under applicable state law to make an added guarantee contract issued incident to that relationship valid and enforceable. A guarantee contract is issued "incident to that relationship" if it arises from a clear commonality of interest in the event of an UST release such as coterminous boundaries, overlapping constituencies, common ground-water aquifer, or other relationship other than monetary compensation that provides a motivation for the guarantor to provide a guarantee.</content><note type="source"><p>Source Note: The provisions of this §37.802 adopted to be effective November 23, 2000, 25 TexReg 11399.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.815"><num value="37.815">§37.815</num><heading>Amount and Scope of Required Financial Assurance</heading><content>(a) Owners or operators of petroleum underground storage tanks (USTs) must demonstrate financial assurance for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of petroleum USTs in at least the following per-occurrence amounts:(1) for owners or operators of petroleum USTs that are located at petroleum marketing facilities, or that handle an average of more than 10,000 gallons of petroleum per month based on annual throughput for the previous calendar year, $1 million; or(2) for all other owners or operators of petroleum USTs; $500,000.(b) Owners or operators of petroleum USTs must demonstrate financial assurance for taking corrective action and for compensating third parties for bodily injury and property damage caused by accidental releases arising from the operation of petroleum USTs in at least the following annual aggregate amounts:(1) for owners or operators of 1 to 100 petroleum USTs within the United States, $1 million; and(2) for owners or operators of 101 or more petroleum USTs within the United States, $2 million.(c) For the purposes of subsections (b) and (f) of this section only, petroleum UST means a single containment unit and does not mean combinations of single containment units.(d) Except as provided in subsection (e) of this section, the amount of assurance provided by each mechanism or combination of mechanisms must be in the full amount specified in subsections (a) and (b) of this section, if the owner or operator uses separate mechanisms or separate combinations of mechanisms to demonstrate financial assurance for:(1) taking corrective action;(2) compensating third parties for bodily injury and property damage caused by sudden accidental releases; or(3) compensating third parties for bodily injury and property damage caused by nonsudden accidental releases.(e) If the owner or operator uses separate mechanisms or separate combinations of mechanisms to demonstrate financial assurance for different petroleum USTs, the annual aggregate required shall be based on the number of tanks covered by each separate mechanism or combination of mechanisms.(f) Owners or operators shall review the amount of aggregate financial assurance provided whenever additional petroleum USTs are acquired or installed. If the number of petroleum USTs within the United States owned or operated by that person for which financial assurance must be provided exceeds 100, the owner or operator shall demonstrate financial assurance in the amount of at least $2 million of annual aggregate by the anniversary of the date on which the mechanism demonstrating financial assurance became effective. If financial assurance is being demonstrated by a combination of mechanisms, the owner or operator shall demonstrate financial assurance in the amount of at least $2 million of annual aggregate by the first-occurring effective date anniversary of any one of the mechanisms combined (other than a financial test or guarantee) to provide financial assurance.(g) The amounts of financial assurance required under this section exclude legal defense costs.(h) The required per-occurrence and annual aggregate coverage amounts do not in any way limit the liability of the owner or operator.</content><note type="source"><p>Source Note: The provisions of this §37.815 adopted to be effective November 23, 2000, 25 TexReg 11399.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.820"><num value="37.820">§37.820</num><heading>Allowable Mechanisms and Combinations of Mechanisms</heading><content>(a) Subject to the limitations of subsections (b) and (c) of this section:(1) an owner or operator, including a local government owner or operator, may use any one or combination of the mechanisms listed in §37.825 of this title (relating to Financial Test of Self-Insurance), §37.830 of this title (relating to Guarantee), §37.835 of this title (relating to Insurance and Risk Retention Group Coverage), §37.840 of this title (relating to Surety Bond), §37.845 of this title (relating to Letter of Credit), §37.850 of this title (relating to Trust Fund), and §37.855 of this title (relating to Standby Trust Fund) to demonstrate financial assurance under this subchapter for one or more underground storage tank (UST) systems; and(2) A local government owner or operator may use any one or a combination of the mechanisms listed in 40 Code of Federal Regulations §§280.104-280.107 (relating to Local Government Bond Rating Test, Local Government Financial Test, Local Government Guarantee, Local Government Fund, respectively) to demonstrate financial assurance under this subchapter for one or more USTs.(b) An owner or operator may use a guarantee or surety bond to establish financial assurance only if the Attorney General of Texas has submitted a written statement to the agency that a guarantee or surety bond executed as described in this section is a legally valid and enforceable obligation in the state.(c) An owner or operator may use self-insurance in combination with a guarantee only if, for the purpose of meeting the requirements of the financial test under this rule, the financial statements of the owner or operator are not consolidated with the financial statements of the guarantor.</content><note type="source"><p>Source Note: The provisions of this §37.820 adopted to be effective November 23, 2000, 25 TexReg 11399.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.825"><num value="37.825">§37.825</num><heading>Financial Test of Self-Insurance</heading><content>(a) An owner, operator, and/or guarantor, may satisfy the requirements of §37.815 of this title (relating to Amount and Scope of Required Financial Assurance) by passing a financial test as specified in this section. To pass the financial test of self-insurance, the owner, operator, and/or guarantor must meet the criteria of subsections (b) or (c) of this section based on year-end financial statements for the latest completed fiscal year. (b) The owner, operator, and/or guarantor must meet the requirements of this subsection referred to as Alternative 1. The owner, operator, and/or guarantor must: (1) have a tangible net worth of at least ten times: (A) the total of the applicable aggregate amount required by §37.815 of this title based on the number of underground storage tanks for which a financial test is used to demonstrate financial assurance to the agency under this section; (B) the sum of the corrective action cost estimates, the current closure and post-closure care cost estimates, and amount of liability coverage for which a financial test is used to demonstrate financial assurance to the agency under Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), 40 Code of Federal Regulations (CFR) Parts 264, 265, or state equivalent; (C) the sum of current plugging and abandonment cost estimates for which a financial test is used to demonstrate financial assurance to the agency under Chapter 331 of this title (relating to Underground Injection Control), 40 CFR Part 144 or state equivalent; (D) the sum of municipal solid waste cost estimates for which a financial test is used to demonstrate financial assurance to the agency under Chapter 330 (relating to Municipal Solid Waste), 40 CFR Part 258 or state equivalent; (E) the sum of current polychlorinated biphenyl (PCB) cost estimates for which a financial test is used to demonstrate financial assurance to the EPA under 40 CFR Part 761; and (F) the sum of additional financial assurance obligations not identified in subparagraphs (A) - (E) of this paragraph and for which a financial test or other form of self-insurance is used to meet financial assurance obligations under the commission or other federal or state environmental regulations; (2) have a tangible net worth of at least $10 million; (3) have a letter signed by the chief financial officer as specified in subsection (d) of this section; (4) either: (A) file financial statements annually with the United States Securities and Exchange Commission (SEC), the Energy Information Administration, or the Rural Electrification Administration; or (B) report annually the firm's tangible net worth to Dun and Bradstreet, and Dun and Bradstreet must have assigned the firm a financial strength rating of 4A or 5A; (5) the firm's year-end financial statements, if independently audited, cannot include an adverse auditor's opinion, a disclaimer of opinion, or a "going concern" qualification. (c) The owner, operator, and/or guarantor must meet the requirements of this subsection referred to as Alternative 2. (1) The owner, operator, and/or guarantor must meet the financial test requirements of §37.541(a) and (b) of this title (relating to Financial Test for Liability), substituting the appropriate amounts specified in §37.815(b)(1) and (2) of this title for the "amount of liability coverage" each time specified in that section. (2) The fiscal year-end financial statements of the owner or operator, and/or guarantor, must be examined by an independent certified public accountant and be accompanied by the accountant's report of the examination. (A) The firm's year-end financial statements cannot include an adverse auditor's opinion, a disclaimer of opinion, or a "going concern" qualification. (B) The owner, operator, and/or guarantor, must have a letter signed by the chief financial officer as specified in subsection (d) of this section. (3) If the financial statements of the owner, operator, and/or guarantor, are not submitted annually to the SEC, the Energy Information Administration or the Rural Electrification Administration, the owner, operator, and/or guarantor, must obtain a special report by an independent certified public accountant stating that: (A) the accountant has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and (B) in connection with that procedure: (i) such amounts were found to be in agreement; or (ii) no matters came to the attention of the independent certified public accountant which indicated that the specified data should be adjusted. (d) To demonstrate that it meets the financial test under subsection (b) or (c) of this section, the chief financial officer of the owner, operator, and/or guarantor, must sign, within 120 days of the close of each financial reporting year, as defined by the 12-month period for which financial statements used to support the financial test are prepared, a letter worded exactly as follows, except that the instructions in parentheses are to be replaced by the relevant information and the parentheses deleted. Attached Graphic(e) If an owner or operator using the test to provide financial assurance finds that he or she no longer meets the requirements of the financial test based on the year-end financial statements, the owner or operator must obtain alternative coverage within 150 days of the end of the year for which financial statements have been prepared. (f) The agency may require reports of financial condition at any time from the owner, operator, and/or guarantor. If the agency finds, on the basis of these reports or other information, that the owner, operator, and/or guarantor, no longer meets the financial test requirements of subsections (b) or (c) and (d) of this section, the owner or operator must obtain alternative coverage within 30 days after notification of this finding. (g) If the owner or operator fails to obtain alternate financial assurance within 150 days of finding that he or she no longer meets the requirements of the financial test based on the year-end financial statements, or within 30 days of notification by the executive director that he or she no longer meets the requirements of the financial test, the owner or operator must notify the executive director of this failure within ten days.</content><note type="source"><p>Source Note: The provisions of this §37.825 adopted to be effective November 23, 2000, 25 TexReg 11399; amended to be effective February 13, 2003, 28 TexReg 1196; amended to be effective May 8, 2008, 33 TexReg 3644.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.830"><num value="37.830">§37.830</num><heading>Guarantee</heading><content>(a) An owner or operator may satisfy the requirements of §37.815 of this title (relating to Amount and Scope of Required Financial Responsibility) by obtaining a guarantee that conforms to the requirements of this section. The guarantor must be: (1) a firm that: (A) possesses a controlling interest in the owner or operator; (B) possesses a controlling interest in a firm described under subparagraph (A) of this paragraph; or (C) is controlled through stock ownership by a common parent firm that possesses a controlling interest in the owner or operator; or (2) a firm engaged in a substantial business relationship with the owner or operator and issuing the guarantee as an act incident to that business relationship. (b) Within 120 days of the close of each financial reporting year the guarantor must demonstrate that it meets the financial test criteria of §37.825 of this title (relating to Financial Test of Self-Insurance) based on year-end financial statements for the latest completed financial reporting year by completing the letter from the chief financial officer described in §37.825(d) of this title and must deliver the letter to the owner or operator. If the guarantor fails to meet the requirements of the financial test at the end of any financial reporting year, within 120 days of the end of that financial reporting year the guarantor shall send by certified mail, before cancellation or nonrenewal of the guarantee, notice to the owner or operator. If the agency notifies the guarantor that he or she no longer meets the requirements of the financial test of §37.825(b) or (c) and (d) of this title the guarantor must notify the owner or operator within ten days of receiving this notification from the agency. In both cases, the guarantee will terminate no less than 120 days after the date the owner or operator receives the notification, as evidenced by the return receipt. The owner or operator must obtain alternate coverage as specified in §37.890(c) of this title (relating to Bankruptcy or Other Incapacity of Owner or Operator or Provider of Financial Assurance). (c) The guarantee must be worded as follows, except that instructions in parentheses are to be replaced with the relevant information and the parentheses deleted. Attached Graphic(d) An owner or operator who uses a guarantee to satisfy the requirements of §37.815 of this title must establish a standby trust fund when the guarantee is obtained. Under the terms of the guarantee, all amounts paid by the guarantor under the guarantee will be deposited directly into the standby trust fund in accordance with instructions from the executive director under §37.880 of this title (relating to Drawing on Financial Assurance Mechanisms). This standby trust fund must meet the requirements specified in §37.855 of this title (relating to Standby Trust Fund).</content><note type="source"><p>Source Note: The provisions of this §37.830 adopted to be effective November 23, 2000, 25 TexReg 11399; amended to be effective February 13, 2003, 28 TexReg 1196; amended to be effective May 8, 2008, 33 TexReg 3644.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.835"><num value="37.835">§37.835</num><heading>Insurance and Risk Retention Group Coverage</heading><content>(a) An owner or operator may satisfy the requirements of §37.815 of this title (relating to Amount and Scope of Required Financial Responsibility) by obtaining liability insurance that conforms to the requirements of this section from a qualified insurer or risk retention group. This insurance may be in the form of a separate insurance policy or an endorsement to an existing insurance policy. (b) Each insurance policy must be amended by an endorsement as specified in paragraph (1) of this subsection or evidenced by a certificate of insurance as specified in paragraph (2) of this subsection, except that instructions in parentheses must be replaced with the relevant information and the parentheses deleted. (1) Endorsement. Attached Graphic(2) Certificate of Insurance. Attached Graphic(c) Each insurance policy must be issued by an insurer or a risk retention group that, at a minimum, is licensed to transact the business of insurance or is eligible to provide insurance as an excess or surplus lines insurer in Texas.</content><note type="source"><p>Source Note: The provisions of this §37.835 adopted to be effective November 23, 2000, 25 TexReg 11399; amended to be effective February 13, 2003, 28 TexReg 1196; amended to be effective May 8, 2008, 33 TexReg 3644.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.840"><num value="37.840">§37.840</num><heading>Surety Bond</heading><content>(a) An owner or operator may satisfy the requirements of §37.815 of this title (relating to Amount and Scope of Required Financial Responsibility) by obtaining a surety bond that conforms to the requirements of this section. The surety company issuing the bond must be among those listed as acceptable sureties on federal bonds in the latest Circular 570 of the United States Department of the Treasury. (b) The surety bond must be worded as follows, except that instructions in parentheses must be replaced with the relevant information and the parentheses deleted. Attached Graphic(c) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. In all cases, the surety's liability is limited to the per-occurrence and annual aggregate penal sums. (d) The owner or operator who uses a surety bond to satisfy the requirements of §37.815 of this title must establish a standby trust fund when the surety bond is acquired. Under the terms of the bond, all amounts paid by the surety under the bond will be deposited directly into the standby trust fund in accordance with instructions from the executive director under §37.880 of this title (relating to Drawing on Financial Assurance Mechanisms). This standby trust fund must meet the requirements specified in §37.855 of this title (relating to Standby Trust Fund).</content><note type="source"><p>Source Note: The provisions of this §37.840 adopted to be effective November 23, 2000, 25 TexReg 11399; amended to be effective February 13, 2003, 28 TexReg 1196; amended to be effective May 8, 2008, 33 TexReg 3644.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.845"><num value="37.845">§37.845</num><heading>Letter of Credit</heading><content>(a) An owner or operator may satisfy the requirements of §37.815 of this title (relating to Amount and Scope of Required Financial Responsibility) by obtaining an irrevocable standby letter of credit that conforms to the requirements of this section. The issuing institution must be an entity that has the authority to issue letters of credit in Texas and whose letter of credit operations are regulated and examined by a federal or state agency. (b) The letter of credit must be worded as follows, except that instructions in parentheses are to be replaced with the relevant information and the parentheses deleted. Attached Graphic(c) An owner or operator who uses a letter of credit to satisfy the requirements of §37.815 of this title must also establish a standby trust fund when the letter of credit is acquired. Under the terms of the letter of credit, all amounts paid under a draft by the executive director will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the executive director under §37.880 of this title (relating to Drawing on Financial Assurance Mechanisms). This standby trust fund must meet the requirements specified in §37.855 of this title (relating to Standby Trust Fund). (d) The letter of credit must be irrevocable with a term specified by the issuing institution. The letter of credit must provide that credit be automatically renewed for the same term as the original term, unless, at least 120 days before the current expiration date, the issuing institution notifies the owner or operator by certified mail of its decision not to renew the letter of credit. Under the terms of the letter of credit, the 120 days will begin on the date when the owner or operator receives the notice, as evidenced by the return receipt.</content><note type="source"><p>Source Note: The provisions of this §37.845 adopted to be effective November 23, 2000, 25 TexReg 11399; amended to be effective February 13, 2003, 28 TexReg 1196; amended to be effective May 8, 2008, 33 TexReg 3644.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.850"><num value="37.850">§37.850</num><heading>Trust Fund</heading><content>(a) An owner or operator may satisfy the requirements of §37.815 of this title (relating to Amount and Scope of Required Financial Assurance) by establishing a trust fund that conforms to the requirements of this section. The trustee must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal agency or an agency of the State of Texas.(b) The wording of the trust agreement must be identical to the wording specified in §37.855(b) of this title (relating to Standby Trust Fund), and must be accompanied by a formal certification of acknowledgment as specified in §37.855(c) of this title.(c) The trust fund, when established, must be funded for the full required amount of coverage, or funded for part of the required amount of coverage and used in combination with other mechanism(s) that provide the remaining required coverage.(d) If the value of the trust fund is greater than the required amount of coverage, the owner or operator may submit a written request to the executive director for release of the excess.(e) If other financial assurance as specified in this subchapter is substituted for all or part of the trust fund, the owner or operator may submit a written request to the executive director for release of the excess.(f) Within 60 days after receiving a request from the owner or operator for release of funds as specified in subsections (d) or (e) of this section, the executive director will instruct the trustee to release to the owner or operator such funds as the executive director specifies in writing.</content><note type="source"><p>Source Note: The provisions of this §37.850 adopted to be effective November 23, 2000, 25 TexReg 11399.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.855"><num value="37.855">§37.855</num><heading>Standby Trust Fund</heading><content>(a) An owner or operator using any one of the mechanisms authorized by §37.830 of this title (relating to Guarantee), §37.840 of this title (relating to Surety Bond), or §37.845 of this title (relating to Letter of Credit) must establish a standby trust fund when the mechanism is acquired. The trustee of the standby trust fund must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal agency or an agency of the State of Texas. (b) The standby trust agreement or trust agreement must be worded as follows, except the instructions in parentheses are to be replaced with the relevant information and the parentheses deleted. Attached Graphic(c) The standby trust agreement or trust agreement must be accompanied by a formal certification of acknowledgment similar to the following: Attached Graphic(d) The executive director will instruct the trustee to refund the balance of the standby trust fund to the provider of financial assurance if the executive director determines that no additional corrective action costs or third-party liability claims will occur as a result of a release covered by the financial assurance mechanism for which the standby trust fund was established. (e) An owner or operator may establish one trust fund as the depository mechanism for all funds assured in compliance with this rule.</content><note type="source"><p>Source Note: The provisions of this §37.855 adopted to be effective November 23, 2000, 25 TexReg 11399; amended to be effective February 13, 2003, 28 TexReg 1196; amended to be effective May 8, 2008, 33 TexReg 3644.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.860"><num value="37.860">§37.860</num><heading>Substitution of Financial Assurance Mechanisms by Owner or Operator</heading><content>(a) An owner or operator may substitute any alternate financial assurance mechanisms as specified in this subchapter provided that at all times he or she maintains an effective financial assurance mechanism or combination of mechanisms that satisfies the requirements of §37.815 of this title (relating to Amount and Scope of Required Financial Responsibility).(b) After obtaining alternate financial assurance as specified in this subchapter, an owner or operator may cancel a financial assurance mechanism by providing notice to the provider of financial assurance.</content><note type="source"><p>Source Note: The provisions of this §37.860 adopted to be effective November 23, 2000, 25 TexReg 11399.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.865"><num value="37.865">§37.865</num><heading>Cancellation or Non-renewal by a Provider of Financial Assurance</heading><content>(a) Except as otherwise provided, a provider of financial assurance may cancel or fail to renew an assurance mechanism by sending a notice of termination by certified mail to the owner or operator.(b) Termination of a guarantee, a local government guarantee, a surety bond, or a letter of credit may not occur until 120 days after the date on which the owner or operator receives the notice of termination, as evidenced by the return receipt.(c) Termination of insurance or risk retention group coverage, except for non-payment or misrepresentation by the insured, or state-funded assurance may not occur until 60 days after the date on which the owner or operator receives the notice of termination, as evidenced by the return receipt. Termination for non-payment of premium or misrepresentation by the insured may not occur until a minimum of ten days after the date on which the owner or operator receives the notice of termination, as evidenced by the return receipt.(d) If a provider of financial assurance cancels or fails to renew for reasons other than incapacity of the provider as specified in §37.870 of this title (relating to Reporting, Registration, and Certification), the owner or operator must obtain alternate coverage as specified in this section within 60 days after receipt of the notice of termination. If the owner or operator fails to obtain alternate coverage within 60 days after receipt of the notice of termination, the owner or operator must notify the executive director of this failure and submit:(1) the name and address of the provider of financial assurance;(2) the effective date of termination; and(3) the evidence of the financial assurance mechanism subject to the termination maintained in accordance with §37.875(b) of this title (relating to Financial Assurance Recordkeeping).</content><note type="source"><p>Source Note: The provisions of this §37.865 adopted to be effective November 23, 2000, 25 TexReg 11399.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.867"><num value="37.867">§37.867</num><heading>Duty to Empty Tanks After Termination of Financial Assurance</heading><content>(a) The owner or operator of a tank for which insurance coverage or other financial assurance has terminated shall ensure that the tank is empty, as defined in §334.54(d) of this title (relating to Temporary Removal from Service), not later than the 90th day after the coverage terminates, unless the owner or operator provides the commission proof that the owner or operator maintains evidence of financial responsibility. The owner or operator shall demonstrate that the tank is empty by submitting evidence satisfactory to the executive director if requested by the executive director.(b) Any regulated substances removed from the tank must be handled properly, in accordance with agency requirements. If the regulated substances are disposed of, disposal must be at a properly licensed facility.(c) Failure to empty a tank, or to demonstrate to the executive director that it has been emptied as required under subsection (a) of this section may be considered by the commission to be a separate violation in addition to a violation for failure to maintain financial assurance as required by §37.815 of this title (relating to Amount and Scope of Required Financial Assurance).(d) An owner or operator may demonstrate that the owner or operator had been released from financial assurance requirements by having met all the requirements of §37.885 of this title (relating to Release from the Requirements) prior to the date of financial assurance termination. However, even in the case where a tank has been properly temporarily removed from service by having met all the requirements of §334.54 of this title, including corrosion protection and leak detection, regulated substances may not remain in the tank longer than 90 days, in accordance with subsection (a) of this section.(e) Subsection (a) of this section does not affect the commission's authority to require a shutdown of a facility under Texas Water Code, §26.3475(e), nor any other sections, rules, or statutes, with regard to financial assurance.</content><note type="source"><p>Source Note: The provisions of this §37.867 adopted to be effective May 8, 2008, 33 TexReg 3644.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.870"><num value="37.870">§37.870</num><heading>Reporting, Registration, and Certification</heading><content>(a) Reporting. An owner or operator must submit the appropriate forms listed in §37.875(b) of this title (relating to Financial Assurance Recordkeeping) documenting current proof of financial assurance to the executive director:(1) within 30 days after the owner or operator identifies a release from an underground storage tank (UST) required to be reported under Chapter 334, Subchapter D of this title (relating to Release Reporting and Corrective Action), unless current financial assurance documentation is already on file with the agency;(2) if the owner or operator fails to obtain alternate coverage as required by this subchapter, within 30 days after the owner or operator receives notice of:(A) commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), United States Code, naming a provider of financial assurance as a debtor;(B) suspension or revocation of the authority of a provider of financial assurance to issue a financial assurance mechanism;(C) failure of a guarantor to meet the requirements of the financial test; or(D) other incapacity of a provider of financial assurance;(3) as required by §37.825 of this title (relating to Financial Test of Self Insurance) and §37.865 of this title (relating to Cancellation or Non-renewal by a Provider of Financial Assurance); or(4) when requested by the agency.(b) Registration. An owner or operator must register and update the registration whenever there is a change in the financial assurance mechanism or coverage amount, as specified in §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems). The owner or operator must identify, in the appropriate space on the authorized agency form, the financial assurance mechanisms used to demonstrate compliance with corrective action and third party liability as described in this subchapter. The owner or operator must submit with the form documentation evidencing current financial assurance. Appropriate documentation is that described in this subchapter, or otherwise indicated by the commission in instructions on the form.(c) For certification requirements for petroleum USTs, refer to §334.8(b) of this title (relating to Certification for Underground Storage Tanks (USTs) and UST Systems).</content><note type="source"><p>Source Note: The provisions of this §37.870 adopted to be effective November 23, 2000, 25 TexReg 11399; amended to be effective May 8, 2008, 33 TexReg 3644.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.875"><num value="37.875">§37.875</num><heading>Financial Assurance Recordkeeping</heading><content>(a) Owners or operators must maintain proof of all financial assurance mechanisms used to demonstrate financial assurance under this subchapter for a petroleum underground storage tank (UST) until released from the requirements of this subchapter under §37.885 of this title (relating to Release from the Requirements). An owner or operator must maintain this evidence at the UST site or the owner's or operator's place of business. Records maintained off-site must be made available in a timely manner upon request of the agency.(b) An owner or operator must maintain the following types of evidence of financial assurance.(1) An owner or operator using a financial assurance mechanism specified in §37.825 of this title (relating to Financial Test of Self-Insurance), §37.830 of this title (relating to Guarantee), §37.835 of this title (relating to Insurance and Risk Retention Group Coverage), §37.840 of this title (relating to Surety Bond), §37.845 of this title (relating to Letter of Credit), §37.850 of this title (relating to Trust Fund), §37.855 of this title (relating to Standby Trust Fund), and 40 Code of Federal Regulations §§280.104-280.107 (relating to Local Government Bond Rating Test, Local Government Financial Test, Local Government Guarantee, and Local Government Fund, respectively) must maintain a copy of the instrument worded as specified.(2) An owner or operator using a financial test or guarantee, or a local government financial test, or a local government guarantee supported by the local government financial test must maintain a copy of the chief financial officer's letter based on year-end financial statements for the most recent completed financial reporting year. This documentation must be on file no later than 120 days after the close of the financial reporting year.(3) An owner or operator using a guarantee, surety bond, or letter of credit must maintain a copy of the signed standby trust fund agreement and copies of any amendments to the agreement.(4) An owner or operator using an insurance policy or risk retention group coverage must maintain a copy of the signed insurance policy or risk retention group coverage policy, with the endorsement or certificate of insurance and any amendments to the agreements.(5) A local government owner or operator must comply with the recordkeeping requirements of 40 CFR §280.111(b)(4)-(6) and (9)-(10) as applicable to the local government mechanism used to demonstrate financial assurance.</content><note type="source"><p>Source Note: The provisions of this §37.875 adopted to be effective November 23, 2000, 25 TexReg 11399.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.880"><num value="37.880">§37.880</num><heading>Drawing on Financial Assurance Mechanisms</heading><content>(a) The executive director shall require the guarantor, surety, or institution issuing a letter of credit to place the amount of funds stipulated by the executive director, up to the limit of funds provided by the financial assurance mechanism, into the standby trust if: (1) the owner or operator fails to establish alternate financial assurance within 60 days after receiving notice of cancellation of the guarantee, surety bond, letter of credit, or, as applicable, other financial assurance mechanism; and (2) the agency determines or suspects that a release from an underground storage tank (UST) covered by the mechanism has occurred and so notifies the owner or operator or the owner or operator has notified the executive director under Chapter 334, Subchapter D of this title (relating to Release Reporting and Corrective Action) of a release from an UST covered by the mechanism; or (3) the conditions of subsections (b)(1) or (2)(A) or (B) of this section are satisfied. (b) The executive director may draw on a standby trust fund when: (1) the agency makes a final determination that a release has occurred and immediate or long-term corrective action for the release is needed, and the owner or operator, after appropriate notice and opportunity to comply, has not conducted corrective action as required under Chapter 334, Subchapter D of this title; or (2) the executive director has received either: (A) certification from the owner or operator and the third-party liability claimant(s) and from attorneys representing the owner or operator and the third-party liability claimant(s) that the third-party liability claim should be paid. The certification must be worded as follows, except that instructions in parentheses are to be replaced with the relevant information and the parentheses deleted: Attached Graphic(B) a valid final court order establishing a judgment against the owner or operator for bodily injury or property damage caused by an accidental release from an UST covered by financial assurance under this subchapter and the agency determines that the owner or operator has not satisfied the judgment. (c) If the agency determines that the amount of corrective action costs and third-party liability claims eligible for payment under subsection (b) of this section may exceed the balance of the standby trust fund and the obligation of the provider of financial assurance, the first priority for payment shall be corrective action costs necessary to protect human health and the environment. The executive director shall pay third-party liability claims in the order in which the executive director receives certifications under subsection (b)(2)(A) of this section and valid court orders under subsection (b)(2)(B) of this section.</content><note type="source"><p>Source Note: The provisions of this §37.880 adopted to be effective November 23, 2000, 25 TexReg 11399.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.885"><num value="37.885">§37.885</num><heading>Release from the Requirements</heading><content>(a) An owner or operator is no longer required to maintain financial assurance under this subchapter for an underground storage tank after the tank has been:(1) properly temporarily removed from service, in accordance with the requirements of §334.54 of this title (relating to Temporary Removal from Service);(2) properly permanently removed from service in accordance with the requirements of §334.55 of this title (relating to Permanent Removal from Service); or(3) if corrective action is required, after corrective action has been completed and the tank has been properly removed from service in accordance with the requirements of §334.55 of this title.(b) In order to be released from financial assurance requirements under this section, the owner or operator must notify the commission of the change in status in accordance with §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems).</content><note type="source"><p>Source Note: The provisions of this §37.885 adopted to be effective November 23, 2000, 25 TexReg 11399; amended to be effective May 8, 2008, 33 TexReg 3644.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.890"><num value="37.890">§37.890</num><heading>Bankruptcy or Other Incapacity of Owner or Operator or Provider of Financial Assurance</heading><content>(a) Within ten days after commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), United States Code, naming an owner or operator as debtor, the owner or operator must notify the executive director by certified mail of this commencement and submit the appropriate forms listed in §37.875 of this title (relating to Financial Assurance Recordkeeping) documenting current financial responsibility.(b) Within ten days after commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), United States Code, naming a guarantor providing financial assurance as debtor, this guarantor must notify the owner or operator by certified mail of this commencement as required under §37.830 of this title (relating to Guarantee).(c) An owner or operator who obtains financial assurance by a mechanism other than the financial test of self-insurance will be deemed to be without the required financial assurance in the event of a bankruptcy or incapacity of its provider of financial assurance, or a suspension or revocation of the authority of the provider of financial assurance to issue a guarantee, insurance policy, risk retention group coverage policy, surety bond, letter of credit, or state-required mechanism. The owner or operator must obtain alternate financial assurance as specified in this subchapter within 30 days after receiving notice of this event. If the owner or operator does not obtain alternate coverage within 30 days after this notification, he or she must notify the executive director as specified in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §37.890 adopted to be effective November 23, 2000, 25 TexReg 11399.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scI/s37.895"><num value="37.895">§37.895</num><heading>Replenishment of Guarantees, Letters of Credit, or Surety Bonds</heading><content>(a) If at any time after a standby trust is funded upon the instruction of the executive director with funds drawn from a guarantee, local government guarantee with standby trust, letter of credit, or surety bond, and the amount in the standby trust is reduced below the full amount of coverage required, the owner or operator shall by the anniversary date of the financial mechanism from which the funds were drawn:(1) replenish the value of financial assurance to equal the full amount of coverage required; or(2) acquire another financial assurance mechanism for the amount by which funds in the standby trust have been reduced.(b) For purposes of this section, the full amount of coverage required is the amount of coverage specified in §37.815 of this title (relating to Amount and Scope of Required Financial Assurance). If a combination of mechanisms was used to provide the assurance funds which were drawn upon, replenishment shall occur by the earliest anniversary date among the mechanisms.</content><note type="source"><p>Source Note: The provisions of this §37.895 adopted to be effective November 23, 2000, 25 TexReg 11399.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scJ"><num value="J">SUBCHAPTER J</num><heading>FINANCIAL ASSURANCE FOR RECYCLING FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scJ/s37.901"><num value="37.901">§37.901</num><heading>Applicability</heading><content>This subchapter applies to owners and operators of recycling facilities required to provide evidence of financial assurance under Chapters 328, 330, 332, or 335 of this title (relating to Waste Minimization and Recycling; Municipal Solid Waste; Composting; and Industrial Solid Waste and Municipal Hazardous Waste). This subchapter establishes requirements and mechanisms for demonstrating financial assurance for closure.</content><note type="source"><p>Source Note: The provisions of this §37.901 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective November 4, 2004, 29 TexReg 10116.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scJ/s37.911"><num value="37.911">§37.911</num><heading>Definitions</heading><content>Definitions for terms that appear throughout this subchapter may be found in Subchapter A of this chapter (relating to General Financial Assurance Requirements), as well as Chapters 328, 330, 332, and 335 of this title (relating to Waste Minimization and Recycling; Municipal Solid Waste; Composting; and Industrial Solid Waste and Municipal Hazardous Waste).</content><note type="source"><p>Source Note: The provisions of this §37.911 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective November 4, 2004, 29 TexReg 10116.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scJ/s37.921"><num value="37.921">§37.921</num><heading>Financial Assurance Requirements for Closure</heading><content>(a) In addition to the requirements of this subchapter, owners and operators of recycling facilities required to demonstrate financial assurance for closure must comply with Subchapters A - D of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Closure, Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective Action) except:(1) §37.31 of this title (relating to Submission of Documents) is not applicable;(2) §37.131 of this title (relating to Annual Inflation Adjustments to Closure Cost Estimates) is not applicable;(3) §37.161 of this title (relating to Establishment of a Standby Trust) is not applicable; and(4) §37.241(b) of this title (relating to Insurance) is not applicable.(b) Owners or operators shall submit an originally signed financial assurance mechanism to the executive director.(1) For new facilities, owners or operators shall submit the originally signed financial assurance mechanism:(A) prior to receipt of materials; or(B) as otherwise approved by the executive director.(2) For facilities in existence upon the effective date of this section, owners or operators shall submit the originally signed financial assurance mechanism:(A) within 60 days of executive director approval of the closure cost estimate as required in §328.5(c) of this title (relating to Reporting and Recordkeeping Requirements), §330.282(a) of this title (relating to Closure for Process Facilities), or §335.24(j) of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials); or(B) within 180 days of the effective date of this section, whichever occurs first; or(C) as otherwise approved by the executive director.(c) Insurers providing insurance in accordance with §37.241 of this title must be licensed to transact the business of insurance in Texas or eligible to provide insurance as an excess or surplus lines insurer in Texas.</content><note type="source"><p>Source Note: The provisions of this §37.921 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective November 4, 2004, 29 TexReg 10116.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scJ/s37.931"><num value="37.931">§37.931</num><heading>Financial Assurance Mechanisms</heading><content>Owners and operators subject to this subchapter may use any of the financial assurance mechanisms as specified in Subchapter C of this chapter (relating to Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action) to demonstrate financial assurance for closure except:(1) a pay-in trust fund may not be used; and(2) a surety bond guaranteeing performance may not be used unless the owner or operator is required to provide financial assurance under §332.47 of this title (relating to Permit Application Preparation).</content><note type="source"><p>Source Note: The provisions of this §37.931 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective November 4, 2004, 29 TexReg 10116.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scK"><num value="K">SUBCHAPTER K</num><heading>FINANCIAL ASSURANCE REQUIREMENTS FOR CLASS A OR B PETROLEUM-SUBSTANCE CONTAMINATED SOIL STORAGE, TREATMENT, AND REUSE FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scK/s37.1001"><num value="37.1001">§37.1001</num><heading>Applicability</heading><content>This subchapter applies to an owner or operator of Class A or B petroleum-substance contaminated soil storage, treatment, or reuse facilities required to provide evidence of financial assurance under Chapter 334, Subchapter K of this title (relating to Storage, Treatment, and Reuse Procedures for Petroleum-Substance Contaminated Soil). This subchapter does not apply to state or federal governmental entities whose debts and liabilities are the debts and liabilities of a state or the United States. This subchapter establishes requirements and mechanisms for demonstrating financial assurance for closure and liability.</content><note type="source"><p>Source Note: The provisions of this §37.1001 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective Februay 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scK/s37.1005"><num value="37.1005">§37.1005</num><heading>Submission of Documents</heading><content>An owner or operator required by this subchapter to provide financial assurance must submit originally signed financial assurance mechanisms for closure and liability coverage prior to issuance of registration. The signed financial assurance mechanisms must be in effect at the time they are submitted.</content><note type="source"><p>Source Note: The provisions of this §37.1005 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scK/s37.1011"><num value="37.1011">§37.1011</num><heading>Financial Assurance Requirements for Closure of Class A and B Facilities</heading><content>(a) An owner or operator of a Class A or B petroleum-substance contaminated soil storage, treatment, or reuse facility subject to this subchapter shall establish financial assurance for the closure of the facility that meets the requirements of this section, in addition to the requirements specified under Subchapters A, B, C, and D of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Closure, Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective Action).(b) An owner or operator subject to this subchapter may use any of the financial assurance mechanisms as specified in Subchapter C of this chapter to demonstrate financial assurance for closure, except a pay-in trust mechanism may not be used.</content><note type="source"><p>Source Note: The provisions of this §37.1011 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scK/s37.1021"><num value="37.1021">§37.1021</num><heading>Liability Requirements for Class A and B Facilities</heading><content>An owner or operator of a Class A or B petroleum-substance contaminated soil storage, treatment, or reuse facility subject to this subchapter shall establish financial assurance for sudden liability coverage for bodily injury and property damage to third parties caused by sudden accidental occurrences arising from operations of the facility that meets the requirements of this section, in addition to the requirements specified under Subchapters A, E, F, and G of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Liability Coverage; Financial Assurance Mechanisms for Liability; and Wording of the Mechanisms for Liability).(1) An owner or operator must have and maintain liability coverage for sudden accidental occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs.(2) An owner or operator subject to this subchapter may use any of the financial assurance mechanisms as specified in Subchapter F of this chapter to demonstrate financial assurance for sudden liability.</content><note type="source"><p>Source Note: The provisions of this §37.1021 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scL"><num value="L">SUBCHAPTER L</num><heading>FINANCIAL ASSURANCE FOR USED OIL RECYCLING</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scL/s37.2001"><num value="37.2001">§37.2001</num><heading>Applicability</heading><content>This subchapter applies to used oil transporters required to provide evidence of financial assurance under §324.22 of this title (relating to Soil Remediation for Used Oil Handlers). This subchapter also applies to an owner or operator of a used oil transfer, processing, rerefining, and off-specification used oil burning facilities, hereinafter referred to as "used oil handlers," which are required to provide evidence of financial assurance under §324.22 of this title. This subchapter does not apply to state or federal governmental entities whose debts and liabilities are the debts and liabilities of a state or the United States. This subchapter establishes requirements and mechanisms for demonstrating financial assurance for soil remediation and automobile insurance.</content><note type="source"><p>Source Note: The provisions of this §37.2001 adopted to be effective April 6, 1998, 23 TexReg 3263; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective Februay 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scL/s37.2003"><num value="37.2003">§37.2003</num><heading>Definitions</heading><content>Definitions for terms that appear throughout this subchapter may be found in Subchapter A of this chapter (relating to General Financial Assurance Requirements), as well as Chapter 324 of this title (relating to Used Oil), except the term "closure" for purposes of this subchapter includes the term "soil remediation" as used in Chapter 324 of this title.</content><note type="source"><p>Source Note: The provisions of this §37.2003 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective Februay 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scL/s37.2011"><num value="37.2011">§37.2011</num><heading>Financial Assurance Requirements for Used Oil Handlers</heading><content>In addition to the requirements of this subchapter, used oil handlers who must demonstrate financial assurance for soil remediation must do so in an amount as specified in §324.22(c) or (d) of this title (relating to Financial Responsibility Technical Requirements) and must comply with Subchapters A - D of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Closure, Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective Action).</content><note type="source"><p>Source Note: The provisions of this §37.2011 adopted to be effective April 6, 1998, 23 TexReg 3263; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective Februay 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scL/s37.2013"><num value="37.2013">§37.2013</num><heading>Financial Assurance Mechanisms for Used Oil Handlers</heading><content>A used oil handler subject to this subchapter may use any of the financial assurance mechanisms as specified in Subchapter C of this chapter (relating to Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action) to demonstrate financial assurance for soil remediation except a pay-in trust fund may not be used.</content><note type="source"><p>Source Note: The provisions of this §37.2013 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scL/s37.2015"><num value="37.2015">§37.2015</num><heading>Submission of Documents</heading><content>An owner or operator required to provide financial assurance must submit an originally signed financial assurance mechanism prior to issuance of registration. The signed financial assurance mechanism must be in effect at the time it is submitted.</content><note type="source"><p>Source Note: The provisions of this §37.2015 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scL/s37.2021"><num value="37.2021">§37.2021</num><heading>Financial Assurance Requirements for Transporters of Used Oil</heading><content>A used oil transporter must show proof of insurance to the commission in the forms and levels as prescribed by the Texas Department of Transportation (Texas Civil Statutes, Articles 6675c, 6675c-1, 911m, and 6687-9a) or the U.S. Department of Transportation (49 USC §11506). The document issued by the Texas Department of Transportation or the U.S. Department of Transportation which shows the used oil transporter is currently satisfying department requirements for transporting used oil will be an acceptable form of demonstrating proof of insurance and should be submitted to the commission. If a used oil transporter is not required to be registered as a motor carrier with either of these agencies, then proof of insurance in the form of an original signed certificate of insurance and in levels sufficient to pay for bodily injury and property damage liability caused by the used oil must be submitted to the commission directly by an insurance agent. In all cases, the name of the used oil transporter must be identical to the party named on the applicable insurance form.</content><note type="source"><p>Source Note: The provisions of this §37.2021 adopted to be effective April 6, 1998, 23 TexReg 3263; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scM"><num value="M">SUBCHAPTER M</num><heading>FINANCIAL ASSURANCE REQUIREMENTS FOR SCRAP TIRE SITES</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scM/s37.3001"><num value="37.3001">§37.3001</num><heading>Applicability</heading><content>This subchapter applies to an owner or operator required to provide financial assurance under Chapter 328, Subchapter F of this title (relating to Management of Used or Scrap Tires). This subchapter does not apply to state or federal governmental entities whose debts and liabilities are the debts and liabilities of a state or the United States. This subchapter establishes requirements and mechanisms for demonstrating financial assurance for closure.</content><note type="source"><p>Source Note: The provisions of this §37.3001 adopted to be effective July 7, 1998, 23 TexReg 6966; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective Februay 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scM/s37.3003"><num value="37.3003">§37.3003</num><heading>Definitions</heading><content>Definitions for terms that appear throughout this subchapter may be found in Subchapter A of this chapter (relating to General Financial Assurance Requirements), as well as Chapter 328, Subchapter F of this title (relating to Management of Used or Scrap Tires).</content><note type="source"><p>Source Note: The provisions of this §37.3003 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scM/s37.3011"><num value="37.3011">§37.3011</num><heading>Financial Assurance Requirements</heading><content>In addition to the requirements of this subchapter, owners or operators of a scrap tire site required to demonstrate financial assurance for closure must comply with Subchapters A, B, C, and D of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Closure, Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective Action).</content><note type="source"><p>Source Note: The provisions of this §37.3011 adopted to be effective July 7, 1998, 23 TexReg 6966; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scM/s37.3021"><num value="37.3021">§37.3021</num><heading>Financial Assurance Mechanisms</heading><content>An owner or operator subject to this subchapter may use any of the financial assurance mechanisms as specified in Subchapter C of this chapter (relating to Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action) for demonstrating financial assurance for closure, except:(1) a pay-in trust fund may not be used;(2) in §37.301(a), Section 10 shall be revised as follows: Section 10. Quarterly Valuation. The trustee shall quarterly, within 15 days of quarter-end, furnish to the Grantor and to the executive director a statement confirming the value of the Trust. Quarter-ends are designated as March 31, June 30, September 30, and December 31. Any securities in the Fund shall be valued at market value as of quarter-end. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the executive director shall constitute a conclusively binding assent by the Grantor barring the Grantor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement;(3) Section 37.161 of this title (relating to Establishment of a Standby Trust) does not apply to an owner or operator who utilizes either a surety bond or irrevocable standby letter of credit under this subchapter;(4) an owner or operator who utilizes the insurance mechanism as specified in §37.241 of this title (relating to Insurance) shall replace the wording specified in §37.241(b) of this title to read as follows: At a minimum, the insurer must be licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in Texas.</content><note type="source"><p>Source Note: The provisions of this §37.3021 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scM/s37.3031"><num value="37.3031">§37.3031</num><heading>Submission of Documents</heading><content>An owner or operator required to provide financial assurance must submit an originally signed financial assurance mechanism prior to issuance of registration. The signed financial assurance mechanism must be in effect at the time it is submitted.</content><note type="source"><p>Source Note: The provisions of this §37.3031 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scN"><num value="N">SUBCHAPTER N</num><heading>FINANCIAL ASSURANCE REQUIREMENTS FOR THE TEXAS RISK REDUCTION PROGRAM RULES</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scN/s37.4001"><num value="37.4001">§37.4001</num><heading>Applicability</heading><content>(a) This subchapter applies to persons required to provide financial assurance under §350.33 of this title (relating to Remedy Standard B) and §350.135 of this title (relating to Application Requirements).(b) This subchapter establishes requirements and mechanisms for demonstrating financial assurance for post response action care under Remedy Standard B as specified in §37.4021 of this title (relating to Financial Assurance Requirements for Post Response Action Care) and for corrective action at Facility Operations Areas as specified in §37.4031 of this title (relating to Financial Assurance Requirements for Facility Operations Areas). In addition to the requirements of this subchapter, persons are also required to comply with Subchapters A, B, C, and D of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Closure, Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective Action).</content><note type="source"><p>Source Note: The provisions of this §37.4001 adopted to be effective September 23, 1999, 24 TexReg 7413; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scN/s37.4011"><num value="37.4011">§37.4011</num><heading>Definitions</heading><content>Definitions for terms that appear throughout this subchapter may be found in Subchapter A of this chapter (relating to General Financial Assurance Requirements) and Chapter 350 of this title (relating to Risk Reduction Program Rule), except where the following terms are used in this subchapter, the following definitions shall apply.(1) Post-response action care - This term shall be used interchangeably with closure.(2) Post-response action care estimate - The most recent written cost estimate for post-response action care for an affected property as required by §350.33(l) and (m) of this title (relating to Remedy Standard B) and approved by the executive director. For purposes of this subchapter, it shall be mean the same as "current cost estimate."(3) Response action plan - The same as "closure plan."</content><note type="source"><p>Source Note: The provisions of this §37.4011 adopted to be effective September 23, 1999, 24 TexReg 7413; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scN/s37.4021"><num value="37.4021">§37.4021</num><heading>Financial Assurance Requirements for Post-Response Action Care</heading><content>(a) The financial assurance provided shall be in the amount specified in the most recent post response action care cost estimate required by §350.33(l), (m), or (n), as applicable, of this title (relating to Remedy Standard B).(b) A person subject to this subchapter may use any of the financial assurance mechanisms specified in Subchapter C of this chapter (relating to Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action) to demonstrate financial assurance for post response action care, except that a pay-in trust fund may not be used and a standby trust as specified in §37.161 of this title (relating to Establishment of a Standby Trust) is not required.(c) A person who is required to provide financial assurance shall do so in accordance with §37.31 of this title (relating to Submission of Documents), but must submit the financial assurance within 90 days of the executive director's approval of the Response Action Plan.(d) A person required to provide financial assurance is not subject to §37.131 of this title (relating to Annual Inflation Adjustments to Closure Estimates).(e) If an affected property undergoing post response action care does not have an agency registration or permit number, any references to the agency registration or permit number in the wording of mechanisms specified in Subchapter D of this chapter (relating to Wording of the Mechanisms for Closure, Post Closure, and Corrective Action) may be replaced with any other applicable name or number assigned by the agency to the subject property.</content><note type="source"><p>Source Note: The provisions of this §37.4021 adopted to be effective September 23, 1999, 24 TexReg 7413; amended to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scN/s37.4031"><num value="37.4031">§37.4031</num><heading>Financial Assurance Requirements for Facility Operations Areas</heading><content>(a) A person who is subject to this subchapter may use any of the financial assurance mechanisms specified in Subchapter C of this chapter (relating to Financial Assurance Mechanisms for Closure) to demonstrate financial assurance for corrective action at a facility operations area, except that a pay-in trust fund may not be used.(b) A person required to provide financial assurance shall submit it in accordance with §37.31 of this title (relating to Submission of Documents), but must do so within 60 days after the effective date of the permit or commission corrective action order authorizing the facility operations area.(c) If a facility operations area does not have an agency registration or permit number, any references to the registration or permit number in the wording of mechanisms specified in Subchapter D of this chapter (relating to Wording of the Mechanisms for Closure) may be replaced with any other applicable name or number assigned by the agency to the subject property.</content><note type="source"><p>Source Note: The provisions of this §37.4031 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scO"><num value="O">SUBCHAPTER O</num><heading>FINANCIAL ASSURANCE FOR PUBLIC DRINKING WATER SYSTEMS</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scO/s37.5001"><num value="37.5001">§37.5001</num><heading>Applicability</heading><content>This subchapter applies to public water systems required to provide evidence of financial assurance under Chapter 290 of this title (relating to Public Drinking Water).</content><note type="source"><p>Source Note: The provisions of this §37.5001 adopted to be effective February 4, 1999, 24 TexReg 729; amended to be effective January 3, 2019, 43 TexReg 8605.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scO/s37.5002"><num value="37.5002">§37.5002</num><heading>Definitions</heading><content>For definitions of words and terms and other definitions not found in Subchapter A of this chapter (relating to General Financial Assurance Requirements) see §290.38 of this title (relating to Definitions).</content><note type="source"><p>Source Note: The provisions of this §37.5002 adopted to be effective February 4, 1999, 24 TexReg 729; amended to be effective January 3, 2019, 43 TexReg 8605.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scO/s37.5011"><num value="37.5011">§37.5011</num><heading>Financial Assurance for a Public Water System</heading><content>(a) Financial assurance demonstrations shall comply with the wordings of the mechanisms as described in Subchapter A of this chapter (relating to General Financial Assurance Requirements), Subchapter B of this chapter (relating to Financial Assurance Requirements for Closure, Post Closure, and Corrective Action), Subchapter C of this chapter (relating to Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action), and Subchapter D of this chapter (relating to Wording of the Mechanisms for Closure, Post Closure, and Corrective Action), except operation should be substituted for closure.(b) The prospective owner or operator of a public water system may be ordered to provide adequate financial assurance to operate the system as specified in §290.39(f) of this title (relating to General Provisions). A public water system that was constructed without approval or has a history of noncompliance or is subject to commission enforcement action as specified in §290.39(n) of this title, may be required to provide financial assurance to operate the system in accordance with applicable laws and rules.</content><note type="source"><p>Source Note: The provisions of this §37.5011 adopted to be effective February 4, 1999, 24 TexReg 729; amended to be effective March 21, 2000, 25 TexReg 2347; amended to be effective Februay 13, 2003, 28 TexReg 1196; amended to be effective January 3, 2019, 43 TexReg 8605.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scP"><num value="P">SUBCHAPTER P</num><heading>FINANCIAL ASSURANCE FOR HAZARDOUS AND NONHAZARDOUS INDUSTRIAL SOLID WASTE FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scP/s37.6001"><num value="37.6001">§37.6001</num><heading>Applicability</heading><content>(a) This subchapter applies to owners and operators of interim status hazardous waste facilities required to provide financial assurance under §335.128 of this title (relating to Financial Assurance); owners or operators of hazardous waste facilities required to provide financial assurance under §335.179 of this title (relating to Financial Assurance); owners or operators of industrial solid waste or municipal hazardous waste facilities required to provide financial assurance under §335.7 of this title (relating to Financial Assurance Required); owners and operators of commercial nonhazardous industrial solid waste facilities required to provide financial assurance under Chapter 335, Subchapter T of this title (relating to Permitting Standards for Owners and Operators of Commercial Industrial Nonhazardous Waste Landfill Facilities); and owners or operators required to provide financial assurance for corrective action under §335.167 of this title (relating to Corrective Action for Solid Waste Management Units).(b) This subchapter does not apply to owners or operators which are state or federal government entities whose debts and liabilities are the debts and liabilities of a state or the United States.(c) This subchapter establishes requirements and mechanisms for demonstrating financial assurance for closure, post closure, or corrective action.</content><note type="source"><p>Source Note: The provisions of this §37.6001 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective March 21, 2004, 29 TexReg 2885.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scP/s37.6011"><num value="37.6011">§37.6011</num><heading>Definitions</heading><content>Definitions for terms that appear throughout this subchapter may be found in Subchapter A of this chapter (relating to General Financial Assurance Requirements) and Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste).</content><note type="source"><p>Source Note: The provisions of this §37.6011 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scP/s37.6021"><num value="37.6021">§37.6021</num><heading>Financial Assurance Requirements for Closure, Post Closure, and Corrective Action</heading><content>(a) In addition to the requirements of this subchapter, owners or operators required to demonstrate for closure, post closure, or corrective action must comply with Subchapters A - D of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective Action), §335.112 of this title (relating to Standards), and §335.152 of this title (relating to Standards).(b) Owners or operators subject to this subchapter may use any of the following mechanisms as specified in Subchapter C of this chapter to demonstrate financial assurance for closure, post closure, or corrective action:(1) trust fund (fully funded or pay-in trust), except that:(A) owners or operators of interim status hazardous waste facilities required to provide evidence of financial assurance under §335.128 of this title (relating to Financial Assurance) must make annual payments to fully fund the trust fund by July 6, 2002 or must make annual payments into the trust fund over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter;(B) owners or operators of permitted hazardous waste facilities required to provide evidence of financial assurance under §335.179 of this title (relating to Financial Assurance), who previously operated under interim status rules and choose to establish a trust fund after having used one or more alternate mechanisms specified in this chapter, must make an initial payment in at least the amount that the fund would contain if the trust fund were established initially and annual payments made as specified in subparagraph A of this paragraph; and(C) owners or operators of nonhazardous industrial solid waste facilities required to provide financial assurance under Chapter 335, Subchapter T of this title (relating to Permitting Standards for Owners and Operators of Commercial Industrial Nonhazardous Waste Landfill Facilities) or §335.7 of this title (relating to Financial Assurance Required) using a pay-in trust must use a pay-in period of the shorter of ten years or the remaining life of the facility, unless the owner or operator satisfies the requirements of clause (i) of this subparagraph.(i) If a pay-in period in excess of ten years is used, the owner or operator shall submit, on an annual basis, certification from an independent registered professional engineer that there is adequate financial assurance for closure or post closure. The owner or operator must:(I) submit the completed certification on the form provided by the executive director;(II) submit the initial certification with the initial trust payment; and(III) submit subsequent certifications annually with subsequent payments no later than 30 days after the anniversary date of the initial payment.(ii) The pay-in trust will revert to a fully funded trust and the entire current closure or post closure cost estimate shall be paid into the trust upon direction of the executive director if:(I) the owner or operator fails to submit the annual certification by the required time frame in clause (i) of this subparagraph;(II) the certification is incomplete; or(III) the certification is not submitted on the form provided by the executive director.(D) the executive director will respond in writing within 60 days to requests for reimbursements made in accordance with §37.201(j) of this title (relating to Trust Fund);(2) surety bond guaranteeing payment;(3) surety bond guaranteeing performance, except that this mechanism may not be used by interim status hazardous waste facilities required to provide evidence of financial assurance under §335.128 of this title (relating to Financial Assurance);(4) irrevocable standby letter of credit;(5) insurance;(6) financial test; or(7) corporate guarantee.(c) References in Subchapter D of this chapter to permit numbers should be changed to solid waste registration numbers.(d) Owners or operators using a financial test or corporate guarantee must comply with §37.141 of this title (relating to Increase in Current Cost Estimate) except that mechanism increases must be made within 90 days after the close of each succeeding fiscal year.</content><note type="source"><p>Source Note: The provisions of this §37.6021 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective March 21, 2004, 29 TexReg 2885.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scP/s37.6031"><num value="37.6031">§37.6031</num><heading>Financial Assurance Requirements for Liability</heading><content>(a) Owners or operators required to demonstrate for liability must comply with Subchapters A, E, F, and G of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Liability Coverage; Financial Assurance Mechanisms for Liability; and Wording of the Mechanisms for Liability).(b) An owner or operator of a hazardous waste treatment, storage, or disposal facility, subject to this section must demonstrate financial assurance for bodily injury and property damage to third parties caused by sudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator must have and maintain liability coverage for sudden accidental occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs.(c) An owner or operator of a hazardous waste surface impoundment, landfill, land treatment facility, or disposal miscellaneous unit used to manage hazardous waste subject to this section must demonstrate financial assurance for bodily injury and property damage to third parties caused by nonsudden accidental occurrences arising from operations of the facility or group of facilities. An owner or operator must have and maintain liability coverage for nonsudden accidental occurrences in the amount of at least $3 million per occurrence with an annual aggregate of at least $6 million, exclusive of legal defense costs.(d) Owners or operators who must meet the requirements of this section may combine the required per-occurrence coverage levels for sudden and nonsudden accidental occurrences into a single per- occurrence level, and combine the required annual aggregate coverage levels for sudden and nonsudden accidental occurrences into a single annual aggregate level. Owners or operators who combine coverage levels for sudden and nonsudden accidental occurrences must maintain liability coverage in the amount of at least $4 million per occurrence and $8 million annual aggregate.(e) Owners or operators subject to this subchapter may use any of the mechanisms specified in Subchapter F of this chapter to demonstrate financial assurance for sudden and for nonsudden liability.(f) Owners or operators required to provide liability coverage may not use a claims-made insurance policy as security unless the applicant places in escrow, as provided by the executive director, an amount sufficient to pay an additional year of premiums for renewal of the policy by the state on notice of termination of coverage.</content><note type="source"><p>Source Note: The provisions of this §37.6031 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scP/s37.6041"><num value="37.6041">§37.6041</num><heading>State Assumption of Responsibility</heading><content>(a) If the State of Texas either assumes legal responsibility for an owner's or operator's compliance with the closure, post closure, corrective action, or liability requirements of this chapter, or assures that funds will be available from state sources to cover those requirements, the owner or operator will be in compliance with the requirements of this chapter if the executive director determines that the state's assumption of responsibility is at least equivalent to the financial mechanisms specified in this chapter. The executive director will evaluate the equivalency of state guarantees principally in terms of certainty of the availability of funds for the required closure, post closure, or corrective action activities, or liability coverage; and the amount of funds that will be made available. The executive director may also consider other factors as the executive director deems appropriate. The owner or operator must submit to the executive director a letter from the State of Texas describing the nature of the state's assumption of responsibility together with a letter from the owner or operator requesting that the state's assumption of responsibility be considered acceptable for meeting the requirements of this chapter. The letter from the state must include, or have attached to it, the following information: the facility's permit number, name, physical and mailing addresses, and the amount of funds for closure, post closure, or corrective action or liability coverage that are guaranteed by the state. The executive director will notify the owner or operator of the determination regarding the acceptability of the state's guarantee in lieu of financial mechanisms specified in this chapter. The executive director may require the owner or operator to submit additional information as is deemed necessary to make this determination. Upon approval by the executive director, the owner or operator will be deemed to be in compliance with the requirements of this chapter.(b) If the State of Texas' assumption of responsibility is found acceptable as specified in subsection (a) of this section except for the amount of funds available, the owner or operator may satisfy the requirements of this chapter by use of both the state's assurance and additional financial mechanisms as specified in this chapter. The amount of funds available through the state and the owner or operator's mechanisms must at least equal the required amount.</content><note type="source"><p>Source Note: The provisions of this §37.6041 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scQ"><num value="Q">SUBCHAPTER Q</num><heading>FINANCIAL ASSURANCE FOR UNDERGROUND INJECTION CONTROL WELLS</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scQ/s37.7001"><num value="37.7001">§37.7001</num><heading>Applicability</heading><content>This subchapter applies to an owner or operator required to provide financial assurance under Chapter 331 of this title (relating to Underground Injection Control). This subchapter establishes requirements for demonstrating financial assurance for plugging and abandonment, post closure, and liability.</content><note type="source"><p>Source Note: The provisions of this §37.7001 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scQ/s37.7011"><num value="37.7011">§37.7011</num><heading>Definitions</heading><content>Definitions for terms that appear throughout this subchapter may be found in Subchapter A of this chapter (relating to General Financial Assurance Requirements) and Chapter 331 of this title (relating to Underground Injection Control), except the term "plugging and abandonment" shall mean the same as "closure."</content><note type="source"><p>Source Note: The provisions of this §37.7011 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scQ/s37.7021"><num value="37.7021">§37.7021</num><heading>Financial Assurance Requirements for Plugging and Abandonment</heading><content>(a) An owner or operator subject to this subchapter shall establish financial assurance for the plugging and abandonment of each existing and new Class I well, Class III well, Class I salt cavern disposal well and associated salt cavern, or as otherwise directed by the executive director, in a manner that meets the requirements of this section, in addition to the requirements specified under Subchapters A - D of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Closure, Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective Action) and §331.143 of this title (relating to Cost Estimate for Plugging and Abandonment).(b) An owner or operator subject to this subchapter may use any of the following mechanisms as specified in Subchapter C of this chapter to demonstrate financial assurance for plugging and abandonment:(1) trust fund (fully funded or pay-in trust), except that the executive director will respond in writing within 60 days to requests for reimbursement made in accordance with §37.201(j) of this title (relating to Trust Fund);(2) surety bond guaranteeing payment;(3) surety bond guaranteeing performance;(4) irrevocable standby letter of credit;(5) insurance;(6) financial test; or(7) corporate guarantee.(c) Owners or operators shall comply with §37.31 of this title (relating to Submission of Documents), except that evidence of financial assurance shall be submitted at least 60 days prior to commencement of drilling operations for new wells and for salt cavern disposal wells. All financial assurance mechanisms shall be in effect before commencement of drilling operations. For converted wells and other previously constructed wells, financial assurance shall be provided at least 30 days prior to permit issuance and be in effect upon permit issuance.(d) Owners or operators using a financial test or corporate guarantee must comply with §37.141 of this title (relating to Increase in Current Cost Estimate) except that mechanism increases must be made within 90 days after the close of each succeeding fiscal year.</content><note type="source"><p>Source Note: The provisions of this §37.7021 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective Februay 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scQ/s37.7031"><num value="37.7031">§37.7031</num><heading>Financial Assurance Requirements for Post Closure</heading><content>(a) An owner or operator subject to this subchapter may be required to establish financial assurance for post closure of each existing and new Class I hazardous well and each existing and new Class I salt cavern disposal well and associated salt cavern, in a manner that meets the requirements of this section, in addition to the requirements specified under Subchapters A, B, C, and D of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Closure, Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective Action), §331.68 of this title (relating to Post-Closure Care), and §331.171 of this title (relating to Post-Closure Care). (b) An owner or operator required to provide financial assurance for post closure may use any of the mechanisms specified in Subchapter C of this chapter to demonstrate financial assurance for post closure, except the Local Government Financial Test and Local Government Guarantee. (c) Owners or operators shall comply with §37.31 of this title (relating to Submission of Documents), except that evidence of financial assurance for post closure shall be submitted at least 60 days prior to commencement of drilling operations for new wells and for salt cavern disposal wells. All financial assurance mechanisms shall be in effect before commencement of drilling operations. For converted wells and other previously constructed wells, financial assurance for post closure shall be provided at least 30 days prior to permit issuance and shall be in effect upon permit issuance. (d) Owners or operators shall comply with §37.131 of this title (relating to Annual Inflation Adjustments to Current Cost Estimates), except that adjustments must be made by using an inflation factor derived from the most recent annual Implicit Price Deflator for Gross National Product published by the United States Department of Commerce in its Survey of Current Business. (e) Owners or operators using a financial test or corporate guarantee must comply with §37.141 of this title (relating to Increase in Current Cost Estimate) except that mechanism increases must be made within 90 days after the close of each succeeding fiscal year.</content><note type="source"><p>Source Note: The provisions of this §37.7031 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scQ/s37.7041"><num value="37.7041">§37.7041</num><heading>Financial Assurance Requirements for Liability</heading><content>(a) An owner or operator of hazardous waste injection wells subject to this subchapter shall be required to establish and maintain liability coverage for sudden and nonsudden bodily injury and property damage to third parties caused by accidental occurrences arising from operations of the facility that meets the requirements of this section, in addition to the requirements specified under Subchapters A and E - G of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Liability Coverage; Financial Assurance Mechanisms for Liability; and Wording of the Mechanisms for Liability), §305.154(a)(11) of this title (relating to Standards), and §331.142 of this title (relating to Financial Responsibility).(1) An owner or operator required to establish and maintain liability coverage for sudden accidental occurrences must do so in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs.(2) An owner or operator required to establish and maintain liability coverage for nonsudden accidental occurrences must do so in the amount of at least $3 million per occurrence with an annual aggregate of at least $6 million, exclusive of legal defense costs.(3) Owners or operators who combine coverage levels for sudden and nonsudden accidental occurrences must maintain liability coverage in the amount of at least $4 million per occurrence and $8 million annual aggregate.(b) An owner or operator subject to this subchapter may use any of the mechanisms specified in Subchapter F of this chapter to demonstrate financial assurance for sudden and nonsudden liability.(c) Owners or operators required to provide liability coverage may not use a claims made insurance policy as security unless the applicant places in escrow, as provided by the executive director, an amount sufficient to pay an additional year of premiums for renewal of the policy by the state on notice of termination of coverage.</content><note type="source"><p>Source Note: The provisions of this §37.7041 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective Februay 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scQ/s37.7051"><num value="37.7051">§37.7051</num><heading>State Assumption of Responsibility</heading><content>(a) If the State of Texas either assumes legal responsibility for an owner's or operator's compliance with plugging and abandonment, post closure, or liability requirements of this chapter or assures that funds will be available from state sources to cover the requirements, the owner or operator will be in compliance with the requirements of this chapter if the executive director determines that the state's assumption of responsibility is at least equivalent to the mechanisms specified in this chapter. The executive director will evaluate the equivalency of state guarantees principally in terms of certainty of the availability of funds for the required plugging and abandonment, post closure, or liability coverage; and the amount of funds that will be made available. The executive director may also consider other factors. The owner or operator must submit to the executive director a letter from the State of Texas describing the nature of the state's assumption of responsibility together with a letter from the owner or operator requesting that the state's assumption of responsibility be considered acceptable for meeting the requirements of this chapter. The letter from the state must include, or have attached to it, the following information: the facility's permit number, name, physical and mailing addresses, and the amount of funds for plugging and abandonment, post closure, or liability coverage that are guaranteed by the state. The executive director will notify the owner or operator of the determination regarding the acceptability of the state's guarantee in lieu of the mechanisms specified in this chapter. The executive director may require the owner or operator to submit additional information as is deemed necessary to make this determination. Upon approval by the executive director, the owner or operator will be deemed to be in compliance with the requirements of this chapter.(b) If the State of Texas' assumption of responsibility is found acceptable as specified in subsection (a) of this section except for the amount of funds available, the owner or operator may satisfy the requirements of this chapter by use of both the state's assurance and additional financial mechanisms as specified in this chapter. The amount of funds available through the state and owner or operator's mechanisms must at least equal the required amount.</content><note type="source"><p>Source Note: The provisions of this §37.7051 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scR"><num value="R">SUBCHAPTER R</num><heading>FINANCIAL ASSURANCE FOR MUNICIPAL SOLID WASTE FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scR/s37.8001"><num value="37.8001">§37.8001</num><heading>Applicability</heading><content>This subchapter applies to an owner or operator required to provide financial assurance under Chapter 330 of this title (relating to Municipal Solid Waste). This subchapter does not apply to state or federal governmental entities whose debts and liabilities are the debts and liabilities of a state or the United States. This subchapter establishes requirements and mechanisms for demonstrating financial assurance for closure, post closure, and corrective action.</content><note type="source"><p>Source Note: The provisions of this §37.8001 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scR/s37.8011"><num value="37.8011">§37.8011</num><heading>Definitions</heading><content>Definitions for terms that appear throughout this subchapter may be found in this section, in Subchapter A of this chapter (relating to General Financial Assurance Requirements), as well as Chapter 330 of this title (relating to Municipal Solid Waste).(1) Local government--A city, town, county, district, association, or other public body (including an intermunicipal agency of two or more of these listed entities) created by or under state law; an Indian tribe or an authorized Indian tribal organization having jurisdiction over solid waste management; a local government corporation created under Texas Transportation Code, Chapter 431, to act on behalf of a local government; or a conservation and reclamation district created under Texas Constitution, Article XVI, §59. This definition includes a special district created under state law.(2) Bonds--Financial obligations issued by a local government, including general obligation bonds, revenue bonds, and certificates of obligation.</content><note type="source"><p>Source Note: The provisions of this §37.8011 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective September 14, 2006, 31 TexReg 7353.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scR/s37.8021"><num value="37.8021">§37.8021</num><heading>Financial Assurance Requirements</heading><content>In addition to the requirements of this subchapter, owners or operators required to demonstrate for closure, post closure, or corrective action must comply with Subchapters A, B, C, and D of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Closure, Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective Action), except that §37.131 of this title (relating to Annual Inflation Adjustments to Current Cost Estimates) shall be modified to mean annual inflation adjustments are required during the active life of the facility and during the post closure care period.</content><note type="source"><p>Source Note: The provisions of this §37.8021 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scR/s37.8031"><num value="37.8031">§37.8031</num><heading>Financial Assurance Mechanism</heading><content>(a) An owner or operator subject to this subchapter may use any of the financial assurance mechanisms in Subchapter C of this chapter (relating to Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action), to provide financial assurance, except as specified in this section. The mechanisms must ensure that the funds necessary to meet the costs of closure, post closure, or corrective action shall be available when requested by the executive director.(b) An owner or operator may use a fully funded trust, pay-in trust, or standby trust as provided in §37.201 of this title (relating to Trust Fund), except the pay-in period is ten years or over the remaining life of the municipal solid waste facility, whichever is shorter, unless the owner or operator satisfies the requirements of paragraph (1) of this subsection.(1) If a pay-in period in excess of ten years is used, the owner or operator shall submit, on an annual basis, certification from an independent registered professional engineer that there is adequate financial assurance for closure or post closure. The owner or operator must:(A) submit the completed certification on the form provided by the executive director; and(B) submit the initial certification with the initial trust payment with subsequent annual certifications to be submitted with the subsequent payments which are due no later than 30 days after the anniversary date of the initial payment.(2) The pay-in trust will revert to a fully funded trust and the entire current closure or post closure cost estimate shall be paid into the trust upon direction of the executive director if:(A) the owner or operator fails to submit the annual certification by the required time frame in paragraph (1) of this subsection;(B) the certification is incomplete; or(C) the certification is not submitted on the form provided by the executive director.(c) An owner or operator may use a surety bond guaranteeing payment as provided in §37.211 of this title (relating to Surety Bond Guaranteeing Payment), or a surety bond guaranteeing performance as provided in §37.221 of this title (relating to Surety Bond Guaranteeing Performance), except a payment bond may not be used to provide financial assurance for corrective action.(d) An owner or operator may use insurance as provided in §37.241 of this title (relating to Insurance), except:(1) insurance may not be used to provide financial assurance for corrective action;(2) the insurer must be licensed in Texas; and(3) the following provision found in §37.241(g) of this title does not apply: within 60 days after receiving bills for closure, post closure, or corrective action activities, the executive director shall determine whether the closure, post closure, or corrective action expenditures are in accordance with the approved closure, post closure, or corrective action activities or otherwise justified, and if so, shall instruct the insurer to make reimbursement in such amounts as the executive director specifies in writing.(e) An owner or operator may use a corporate financial test as provided in §37.8061 of this title (relating to Corporate Financial Test for Municipal Solid Waste Facilities), except the owner or operator may not use the financial test under §37.251 of this title (relating to Financial Test).</content><note type="source"><p>Source Note: The provisions of this §37.8031 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scR/s37.8041"><num value="37.8041">§37.8041</num><heading>State Assumption of Responsibility</heading><content>If the executive director either assumes legal responsibility for an owner's or operator's compliance with the closure, post closure, or corrective action requirements of this chapter, or assures that the funds shall be available from state sources to cover the requirements, the owner or operator shall be in compliance with the requirements of this section. The language of the mechanisms for any state assumption of responsibility shall ensure:(1) the amount of funds assured is sufficient to cover the costs of closure, post closure, and corrective action for known releases when needed;(2) the funds shall be available immediately;(3) the financial assurance mechanisms shall be obtained by the owner or operator at least 60 days prior to the initial receipt of solid waste in the case of closure and post closure, and no later than 120 days after the corrective action remedy has been selected in accordance with the requirements of the corrective action plan, until the owner or operator is released from the financial assurance requirements under §§330.281, 330.282, 330.283, or 330.284 of this title (relating to Closure for Landfills; Closure for Process Facilities; Post Closure Care for Landfills; or Corrective Action for Landfills); and(4) the financial assurance mechanisms shall be legally valid, binding, and enforceable under state and federal law.</content><note type="source"><p>Source Note: The provisions of this §37.8041 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scR/s37.8051"><num value="37.8051">§37.8051</num><heading>Submission of Documents</heading><content>An owner or operator may satisfy the requirements as provided in §37.31 of this title (relating to Submission of Documents), except the owner or operator required by this chapter to provide financial assurance for corrective action must submit an originally signed financial assurance mechanism no later than 120 days after the corrective action remedy has been selected. The signed financial assurance mechanism must be in effect when submitted.</content><note type="source"><p>Source Note: The provisions of this §37.8051 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scR/s37.8061"><num value="37.8061">§37.8061</num><heading>Corporate Financial Test for Municipal Solid Waste Facilities</heading><content>An owner or operator may satisfy the requirements of financial assurance for closure, post closure, or corrective action by obtaining a corporate financial test or a corporate financial test and corporate guarantee, which conforms to the requirements of this section, in addition to the requirements specified in Subchapters A and B of this chapter (relating to General Financial Assurance Requirements and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action).(1) To pass this test, the owner or operator must satisfy one of the following three conditions:(A) the owner or operator must have a current bond rating for its senior unsecured debt of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's;(B) a ratio of total liabilities to net worth less than 1.5; or(C) a ratio of the sum of net income plus depreciation, depletion, and amortization, minus $10 million, to total liabilities greater than 0.10.(2) The tangible net worth of the owner or operator must be greater than:(A) the sum of the current cost estimates, and any other environmental obligations under the Texas Commission on Environmental Quality (TCEQ) or other federal or state environmental regulations, including guarantees, covered by a financial test, plus $10 million, except as provided in subparagraph (B) of this paragraph; or(B) $10 million in tangible net worth plus the amount of any guarantees that have not been recognized as liabilities on the financial statements provided all of the current cost estimates and any other environmental obligations covered by a financial test are recognized as liabilities on the owner's or operator's audited financial statements and subject to the approval of the executive director.(3) The owner or operator must have assets located in the United States amounting to at least the sum of the current cost estimates, and any other environmental obligations covered by a financial test as described in paragraph (8) of this section.(4) To demonstrate that the requirements of the test are being met, the owner or operator shall submit the following items to the executive director:(A) a letter signed by the owner's or operator's chief financial officer worded identically to the wording specified in §37.8071 of this title (relating to Wording of Financial Assurance Mechanisms) that:(i) lists all the current cost estimates covered by a financial test, including, but not limited to, cost estimates required for municipal solid waste management facilities under Chapter 330 of this title (relating to Municipal Solid Waste) and 40 Code of Federal Regulations (CFR) Part 258; cost estimates required for underground injection control (UIC) facilities under Chapter 331 of this title (relating to Underground Injection Control) and 40 CFR Part 144; cost estimates required for petroleum underground storage tank facilities under Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks) and 40 CFR Part 280; cost estimates required for polychlorinated biphenyl (PCB) storage facilities under 40 CFR Part 761; and cost estimates required for hazardous waste treatment, storage, and disposal facilities under Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste) and 40 CFR Parts 264 and 265; and(ii) provides evidence demonstrating that the firm meets the conditions of either paragraph (1)(A) or (B) or (C) of this section and paragraphs (2) and (3) of this section;(B) a copy of the independent certified public accountant's unqualified opinion of the owner's or operator's financial statements for the latest completed fiscal year. To be eligible to use the financial test, the owner's or operator's financial statements must receive an unqualified opinion from the independent certified public accountant. An adverse opinion, disclaimer of opinion, or other qualified opinion will be cause for disallowance by the executive director. The executive director may evaluate qualified opinions on a case-by-case basis and allow use of the financial test in cases where the executive director deems that the matters which form the basis for the qualification are insufficient to warrant disallowance of the test. If the executive director does not allow use of the test, the owner or operator must provide alternate financial assurance that meets the requirements of this section; and(C) a special report which is based upon an agreed procedures engagement in accordance with professional auditing standards which:(i) describes the procedures performed in comparing the data in the chief financial officer's letter derived from the independently audited year-end financial statements for the latest fiscal year with the amounts in such financial statements;(ii) states the findings of that comparison and the reasons for any differences; and(iii) includes a report from the independent certified public accountant verifying that all of the environmental obligations covered by a financial test have been recognized as liabilities on the audited financial statements, verifying how these obligations have been measured and reported, and verifying that the tangible net worth of the firm is at least $10 million plus the amount of any guarantees provided. This report is required if the chief financial officer's letter has assured for environmental obligations as provided in paragraph (2)(B) of this section.(5) After the initial submission of items specified in paragraph (4) of this section, the owner or operator must annually send updated information to the executive director within 90 days following the close of the owner's or operator's fiscal year. This information shall consist of all items specified in paragraph (4) of this section. An additional 45 days may be provided to an owner or operator who can demonstrate that 90 days is insufficient time to acquire audited financial statements.(6) If the owner or operator no longer meets the requirements of paragraphs (1) - (3) of this section, the owner or operator shall send notice to the executive director of intent to establish alternate financial assurance as specified in this subchapter and provide the alternate financial assurance mechanism within 120 days following the close of the owner's or operator's fiscal year.(7) The executive director may, based on a reasonable belief that the owner or operator may no longer meet the requirements of paragraphs (1) - (3) of this section, require at any time the owner or operator to provide reports of its financial condition in addition to or including current financial test documentation as specified in paragraph (4) of this section. If the executive director finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of paragraphs (1) - (3) of this section, the owner or operator must provide alternate financial assurance as specified in this subchapter within 30 days after notification of such a finding.(8) When calculating the current cost estimates for closure, post closure, or corrective action, or the sum of the combination of such costs to be covered, and any other environmental obligations assured by a financial test referred to in this section, the owner or operator must include cost estimates required for municipal solid waste management facilities under Chapter 330 of this title and 40 CFR Part 258. The owner or operator must also include current cost estimates required for the following environmental obligations, if the owner or operator assures them through a financial test: obligations including, but not limited to, UIC facilities under Chapter 331 of this title and 40 CFR Part 144; petroleum underground storage tank facilities under Chapter 334 of this title and 40 CFR Part 280; PCB storage facilities under 40 CFR Part 761; and hazardous waste treatment, storage, and disposal facilities under Chapter 335 of this title and 40 CFR Parts 264 and 265.</content><note type="source"><p>Source Note: The provisions of this §37.8061 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective Februay 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scR/s37.8071"><num value="37.8071">§37.8071</num><heading>Wording of Financial Assurance Mechanisms</heading><content>A letter from the chief financial officer for closure, post closure, or corrective action, as specified in §37.8061 of this title (relating to Corporate Financial Test for Municipal Solid Waste Facilities) must be worded as specified in the Corporate Financial Test in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.8071 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective Februay 13, 2003, 28 TexReg 1196.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scS"><num value="S">SUBCHAPTER S</num><heading>FINANCIAL ASSURANCE FOR ON SITE DISPOSAL OF RADIOACTIVE SUBSTANCES AND COMMERCIAL NORM DISPOSAL</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scS/s37.9001"><num value="37.9001">§37.9001</num><heading>Applicability</heading><content>This subchapter applies to an owner or operator, including a state or federal government owner or operator, required to provide evidence of financial assurance under Chapter 336, Subchapter F or K of this title (relating to Licensing of Alternative Methods of Disposal of Radioactive Material; Commercial Disposal of Naturally Occurring Radioactive Material Waste From Public Water Systems, respectively). This subchapter establishes requirements and mechanisms for demonstrating financial assurance for closure and post closure.</content><note type="source"><p>Source Note: The provisions of this §37.9001 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective September 14, 2000, 25 TexReg 8855; amended to be effective March 12, 2009, 34 TexReg 1610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scS/s37.9005"><num value="37.9005">§37.9005</num><heading>Definitions</heading><content>Definitions for terms that appear throughout this subchapter may be found in this section, Subchapter A of this chapter (relating to General Financial Assurance Requirements), §336.2 of this title (relating to Definitions), and §336.602 of this title (relating to Definitions), except the following definitions shall apply for this subchapter.(1) Annual review--Conducted on the anniversary date of the establishment of the financial assurance mechanism.(2) Closure--Any one or combination of the following: closure, dismantlement, decontamination, decommissioning, reclamation, disposal, groundwater restoration, stabilization, or monitoring.(3) Control and maintenance--Shall be referenced as post closure.(4) Facility--All contiguous land, water, buildings, structures, and equipment which are or were used for the disposal of radioactive material, including soils and groundwater contaminated by radioactive material.(5) Post Closure--Shall be the same as control and maintenance as used in Chapter 336, Subchapter G of this title (relating to Decommissioning Standards).(6) Site--Shall be used interchangeably with facility.</content><note type="source"><p>Source Note: The provisions of this §37.9005 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective September 14, 2000, 25 TexReg 8855.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scS/s37.9010"><num value="37.9010">§37.9010</num><heading>Submission of Documents</heading><content>An owner or operator required by this subchapter to provide financial assurance for closure or post closure must submit originally signed and effective financial assurance mechanisms to the executive director 60 days prior to commencement of operations.</content><note type="source"><p>Source Note: The provisions of this §37.9010 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scS/s37.9015"><num value="37.9015">§37.9015</num><heading>Financial Assurance Requirements for Closure and Post Closure</heading><content>(a) An owner or operator subject to this subchapter shall establish financial assurance for closure or post closure of the facility that meets the requirements of this section, in addition to the requirements specified under Subchapters A, B, C, and D of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Closure, Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective Action.)(1) An owner or operator subject to this subchapter may use any of the mechanisms as specified in §37.9020 of this title (relating to Financial Assurance Mechanisms) to demonstrate financial assurance for closure or post closure. On a case-by-case basis, the executive director may approve other alternative financial assurance mechanisms.(2) The executive director will respond within 60 days after receiving a written request for a financial assurance reduction in accordance with §37.151 of this title (relating to Decrease in Current Cost Estimate).(3) An owner or operator may use multiple financial assurance mechanisms provided in §37.41 of this title (relating to Use of Multiple Financial Assurance Mechanisms), but must use only those financial assurance mechanisms specified in §37.9020 of this title.(4) Insurance, a surety bond for guaranteeing payment, or a surety bond guaranteeing performance for closure or post closure, must provide that the full face amount be paid to the beneficiary automatically prior to the expiration without proof of forfeiture if the owner or operator fails to provide a replacement acceptable to the executive director within 30 days after receipt of notification of cancellation.(b) The owner or operator shall comply with §37.71 of this title (relating to Incapacity of Owners or Operators, Guarantors, or Issuing Institutions), except financial assurance must be established within 30 days after such an event.</content><note type="source"><p>Source Note: The provisions of this §37.9015 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scS/s37.9020"><num value="37.9020">§37.9020</num><heading>Financial Assurance Mechanisms</heading><content>(a) An owner or operator may satisfy the requirements of a fully funded trust or standby trust fund as provided in §37.201 of this title (relating to Trust Fund), except that 60 days following the executive director's final review and approval of closure or post closure expenditures for reimbursement, release of funds shall occur.(b) An owner or operator may satisfy the requirements of a surety bond guaranteeing payment as provided in §37.211 of this title (relating to Surety Bond Guaranteeing Payment), or a surety bond guaranteeing performance as provided in §37.221 of this title (relating to Surety Bond Guaranteeing Performance), except:(1) the surety must also be licensed in the State of Texas;(2) cancellation may not occur during the 90 days beginning on the date of receipt of the notice of cancellation; and(3) the bond must guarantee that the owner or operator will provide alternate financial assurance within 30 days after receipt of a notice of cancellation of the bond.(c) An owner or operator may satisfy the requirements of an irrevocable standby letter of credit as provided in §37.231 of this title (relating to Irrevocable Standby Letter of Credit), except:(1) the letter of credit shall be automatically extended unless the issuer provides notice of cancellation at least 90 days before the current expiration date. Under the terms of the letter of credit, the 90 days shall begin on the date when both the owner or operator and the executive director have received the notice, as evidenced by the return receipts; and(2) in accordance with §37.231(h) of this title, the executive director shall draw on the letter of credit, within 30 days after receipt of notice from the issuing institution that the letter of credit will not be extended, or within 60 days of an extension, if the owner or operator fails to establish and obtain approval of such alternate financial assurance from the executive director.(d) An owner or operator may satisfy the requirements of insurance as provided in §37.241 of this title (relating to Insurance), except:(1) the insurer must be licensed in Texas; and(2) cancellation, termination, or failure to renew may not occur during the 90 days beginning with the date of receipt of the notice by both the executive director and the owner or operator, as evidenced by the return receipts.(e) An owner or operator may satisfy the requirements of financial assurance by demonstrating that it passes a financial test as provided in §37.251 of this title (relating to Financial Test), except the owner or operator which has issued rated bonds must also meet the criteria of paragraphs (1) and (3) of this subsection, or the owner or operator which has not issued rated bonds must also meet the criteria of paragraphs (2) and (3) of this subsection.(1) The owner or operator must have:(A) tangible net worth of at least ten times the total current cost estimate (or the current amount required if a certification is used) for all closure activities;(B) assets located in the United States amounting to at least 90% of total assets or at least ten times the total current cost estimate (or the current amount required if a certification is used) for all closure activities;(C) a current rating for its most recent bond issuance of AAA, AA, or A as issued by Standard and Poor's, or Aaa, Aa, A as issued by Moody's; and(D) at least one class of equity securities registered under the Securities Exchange Act of 1934.(2) The owner or operator must have:(A) tangible net worth greater than $10 million, or of at least ten times the total current cost estimate (or the current amount required if a certification is used) for all closure activities, whichever is greater;(B) assets located in the United States amounting to at least 90% of total assets or at least ten times the total current cost estimate (or the current amount required if a certification is used) for all closure activities;(C) a ratio of cash flow divided by total liabilities greater than 0.15; and(D) a ratio of total liabilities divided by net worth less than 1.5.(3) To demonstrate that the owner or operator meets the test, it must submit the following items to the executive director:(A) a letter signed by the owner's or operator's chief financial officer and worded identically to the wording specified in §37.9025(a) of this title (relating to Wording of Financial Assurance Mechanisms); and(B) a written guarantee, hereafter referred to as "self-guarantee," signed by an authorized representative which meets the requirements specified in §37.261 of this title (relating to Corporate Guarantee). The wording of the self-guarantee shall be acceptable to the executive director and must include the following:(i) the owner or operator will fund and carry out the required closure or post closure activities, or upon issuance of an order by the executive director, the owner or operator will set up and fund a trust, as specified in §37.201 of this title (relating to Trust Fund) in the name of the owner or operator, in the amount of the current cost estimates; and(ii) if, at any time, the owner's or operator's most recent bond issuance ceases to be rated in any category of "A" or above by either Standard and Poor's or Moody's, the owner or operator will provide notice in writing of such fact to the executive director within 20 days after publication of the change by the rating service. If the owner's or operator's most recent bond issuance ceases to be rated in any category of "A" or above by both Standard and Poor's and Moody's, the owner or operator no longer meets the requirements of paragraph (1) of this subsection.(f) A parent company controlling a majority of the voting stock of the owner or operator may satisfy the requirements of financial assurance by demonstrating that it passes a financial test as specified in §37.251 of this title, and by meeting the requirements of a corporate guarantee as specified in §37.261 of this title, except a guarantor that is a corporation who has a substantial business relationship with the owner or operator may not use the corporate guarantee. The guarantor shall also comply with the requirements identified in this subsection.(1) The wording of the corporate guarantee as specified in §37.361 of this title (relating to Corporate Guarantee) shall also include:(A) the signatures of two officers of the owner or operator and two officers of the guarantor who are authorized to bind the respective entities; and(B) the corporate seals.(2) The guarantor shall also certify and submit to the executive director that the guarantor has:(A) majority control of the owner or operator;(B) full authority under the laws of the state under which it is incorporated and its articles of incorporation and bylaws to enter into this corporate guarantee;(C) full approval from its board of directors to enter into this corporate guarantee; and(D) authorization for each signatory.(g) An owner or operator that is a nonprofit college, university, or hospital may satisfy the requirements of financial assurance by demonstrating that it passes a financial test as specified in §37.251 of this title, except colleges and universities must also meet either the criteria of paragraphs (1) and (5) or (2) and (5) of this subsection, and hospitals must also meet either the criteria in paragraphs (3) and (5) or (4) and (5) of this subsection.(1) Colleges or universities that issue bonds must have a current rating for its most recent uninsured, uncollateralized, and unencumbered bond issuance of AAA, AA, or A as issued by Standard and Poor's or Aaa, Aa, or A as issued by Moody's.(2) For colleges or universities that do not issue bonds, unrestricted endowment must consist of assets located in the United States of at least $50 million or at least 30 times the total current cost estimate (or the current amount required if a certification is used), whichever is greater, for all closure and post closure activities for which the college or university is responsible as a self-guaranteeing owner or operator.(3) Hospitals that issue bonds must have a current rating for its most recent uninsured, uncollateralized, and unencumbered bond issuance of AAA, AA, or A as issued by Standard and Poor's or Aaa, Aa, or A as issued by Moody's.(4) Hospitals that do not issue bonds must meet the following criteria:(A) total revenues less total expenditures divided by total revenues must be equal to or greater than 0.04;(B) long-term debt divided by net fixed assets must be less than or equal to 0.67;(C) current assets plus depreciation fund divided by current liabilities must be greater than or equal to 2.55; and(D) operating revenues must be at least 100 times the total current cost estimate (or the current amount required if a certification is used) for all closure and post closure activities for which the hospital is responsible as a self-guaranteeing owner or operator.(5) To demonstrate that the owner or operator meets the financial test, it must submit the following items to the executive director:(A) a letter signed by the owner's or operator's chief financial officer and worded identically to the wording specified in §37.9025(b) of this title; and(B) a written guarantee, hereafter referred to as "self-guarantee," signed by an authorized representative which meets the requirements as specified in §37.261 of this title. The wording of the self-guarantee shall be acceptable to the executive director and must include the following:(i) the owner or operator will fund and carry out the required closure or post closure activities, or upon issuance of an order by the executive director, the owner or operator will set up and fund a trust, as specified in §37.201 of this title, in the name of the owner or operator, in the amount of the current cost estimates; and(ii) if, at any time, the owner's or operator's most recent bond issuance ceases to be rated in any category of "A" or above by either Standard and Poor's or Moody's, the owner or operator will provide notice in writing of such fact to the executive director within 20 days after publication of the change by the rating service.(h) A statement of intent may be used by a governmental entity subject to this subchapter. The statement of intent shall be subject to the executive director's approval and shall include the following:(1) a statement that funds will be made immediately available upon demand by the executive director;(2) the signature of an authorized official who has the authority to bind the governmental entity into a financial obligation, and has the authority to sign the statement of intent;(3) name of facility(ies), license number, and physical and mailing addresses; and(4) corresponding current cost estimates.(i) An owner or operator may satisfy the requirements of financial assurance by establishing an external sinking fund as specified in this subsection. An external sinking fund has two components: a sinking fund account and a financial assurance mechanism such that the total of both equals, at all times, the current cost estimate. A sinking fund account is an account segregated from the owner's or operator's assets and is outside the owner's or operator's administrative control. As the value of the sinking fund account increases, the value of the second financial assurance mechanism decreases. When the external sinking fund account is equal to the current cost estimate, the second financial assurance mechanism will no longer be required to be maintained.(1) An external sinking fund account shall be approved by the executive director and administered by a third party that is regulated and examined by a federal or state agency.(2) The external sinking fund is established and maintained by setting aside funds periodically, at least annually.</content><note type="source"><p>Source Note: The provisions of this §37.9020 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scS/s37.9025"><num value="37.9025">§37.9025</num><heading>Wording of Financial Assurance Mechanisms</heading><content>(a) Except as provided in subsection (b) of this section, an owner or operator providing a self- guarantee, as specified in §37.9020(e) of this title (relating to Financial Assurance Mechanisms), must provide a letter from the chief financial officer as specified in §37.351 of this title (relating to Financial Test), except Alternative I and Alternative II as specified in §37.351 of this title shall be replaced with Alternative I and Alternative II of this subsection.Attached Graphic(b) An owner or operator that is a nonprofit college, university, or hospital providing a self-guarantee as specified in §37.9020(g) of this title, must provide a letter from the chief financial officer of the owner or operator as specified in §37.351 of this title, except Alternative I and Alternative II as specified in §37.351 of this title shall be replaced with Alternative I and Alternative II of this subsection. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.9025 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scT"><num value="T">SUBCHAPTER T</num><heading>FINANCIAL ASSURANCE FOR RADIOACTIVE SUBSTANCES AND AQUIFER RESTORATION</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scT/s37.9030"><num value="37.9030">§37.9030</num><heading>Applicability</heading><content>This subchapter applies to owners or operators required to provide financial assurance under Chapter 336, Subchapters G, H, L, or M of this title (relating to Decommissioning Standards; Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste; Licensing of Source Material Recovery and By-Product Material Disposal Facilities; or Licensing of Radioactive Substances Processing and Storage Facilities). This subchapter establishes requirements and mechanisms for demonstrating financial assurance for closure, post closure, corrective action, and liability coverage.</content><note type="source"><p>Source Note: The provisions of this §37.9030 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective September 14, 2000, 25 TexReg 8855; amended to be effective January 8, 2004, 29 TexReg 101; amended to be effective March 12, 2009, 34 TexReg 1610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scT/s37.9035"><num value="37.9035">§37.9035</num><heading>Definitions</heading><content>Definitions for terms that appear throughout this subchapter may be found in Subchapter A of this chapter (relating to General Financial Assurance Requirements), §336.2 of this title (relating to Definitions), and §336.702 of this title (relating to Definitions), except the following definitions shall apply for this subchapter.(1) Annual review--Conducted on the anniversary date of the establishment of the financial assurance mechanism.(2) Closure--Any one or combination of the following: closure, dismantlement, decontamination, decommissioning, reclamation, disposal, aquifer restoration, stabilization, monitoring, or post closure observation and maintenance.(3) Corrective action--The activities to remediate unplanned events that pose a risk to public health, safety, and the environment and that may occur after the decommissioning and closure of the compact waste disposal facility or a federal facility waste disposal facility.(4) Facility--The term "Facility" has the same meaning as the term "Site" as defined in §336.702 of this title (relating to Definitions). Facility also means all contiguous land, water, buildings, structures, and equipment which are or were used for activities associated with:(A) the disposal of radioactive material, including disposal, receipt, storage, processing, or handling of radioactive material, waste, soil, and groundwater contaminated by radioactive material;(B) the recovery of source material as provided in Chapter 336, Subchapter L of this title (relating to Licensing of Source Material Recovery and By-Product Material Disposal Facilities); or(C) the processing and storage of radioactive substances as provided in Chapter 336, Subchapter M of this title (relating to Licensing of Radioactive Substances Processing and Storage Facilities).(5) Institutional control--Shall have the same meaning as post closure.(6) Licensee--Shall have the same meaning as owner, operator, or license holder.(7) Post closure--The activities that are identified as institutional control as specified in §336.734 of this title (relating to Institutional Requirements).</content><note type="source"><p>Source Note: The provisions of this §37.9035 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective September 14, 2000, 25 TexReg 8855; amended to be effective January 8, 2004, 29 TexReg 101; amended to be effective March 12, 2009, 34 TexReg 1610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scT/s37.9040"><num value="37.9040">§37.9040</num><heading>Submission of Documents</heading><content>An owner or operator required by this subchapter to provide financial assurance for closure, post closure, corrective action, and liability coverage must submit originally signed and effective financial assurance mechanisms to the executive director 60 days prior to the initial receipt, production or possession of radioactive substances or injection operations in a production area.</content><note type="source"><p>Source Note: The provisions of this §37.9040 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective January 8, 2004, 29 TexReg 101; amended to be effective March 12, 2009, 34 TexReg 1610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scT/s37.9045"><num value="37.9045">§37.9045</num><heading>Financial Assurance Requirements for Closure, Post Closure, and Corrective Action</heading><content>(a) An owner or operator subject to this subchapter shall establish financial assurance for the closure, post closure, and corrective action of the facility that meets the requirements of this section, in addition to the requirements specified under Subchapters A, B, C, and D of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Closure, Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective Action).(1) An owner or operator subject to this subchapter may use any of the mechanisms as specified in §37.9050 of this title (relating to Financial Assurance Mechanisms) to demonstrate financial assurance for closure, post closure, and corrective action. On a case-by-case basis, the executive director may approve other alternative financial assurance mechanisms.(2) The executive director will respond within 60 days after receiving a written request for a financial assurance reduction in accordance with §37.151 of this title (relating to Decrease in Current Cost Estimate).(3) An owner or operator may use multiple financial assurance mechanisms provided in §37.41 of this title (relating to Use of Multiple Financial Assurance Mechanisms), but must use only those financial assurance mechanisms as specified in §37.9050 of this title.(4) The executive director may accept financial assurance established to meet requirements of other federal, state agencies, or local governing bodies for closure or post closure, provided such mechanism complies with the requirements of this chapter and the full amount of financial assurance required for the specific license is clearly identified and committed for use for the purposes of Chapter 336, Subchapters G, H, L, and M of this title (relating to Decommissioning Standards; Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste; Licensing of Source Material Recovery and By-Product Material Disposal Facilities; and Licensing of Radioactive Substances Processing and Storage Facilities).(5) Proof of forfeiture must not be necessary to collect the financial assurance, so that in the event that the owner or operator does not provide acceptable replacement financial assurance within the required time prior to the expiration, cancellation, or termination of the financial assurance mechanism, the financial assurance provider shall pay the face amount of the financial assurance to the State of Texas for deposit as specified in paragraph (6) of this subsection.(6) All financial assurance required under §§336.619, 336.736 - 336.738, 336.1125, and 336.1235 of this title (relating to Financial Assurance for Decommissioning; Liability Coverage and Funding for Disposal Site Closure and Stabilization; Funding for Institutional Control; Funding for Corrective Action; Financial Assurance Requirements; and Financial Assurance for Storage and Processing) to be converted to cash by direction of the executive director pursuant to §37.101 of this title (relating to Drawing on the Financial Assurance Mechanisms) and paragraph (5) of this subsection shall be payable to the State of Texas for deposit to the credit of the perpetual care account or upon the Environmental Radiation and Perpetual Care Account being recreated and rededicated by legislation, then such financial assurance proceeds as described in this subsection shall be paid to the State of Texas for deposit to the credit of the Environmental Radiation and Perpetual Care Account.(b) Financial assurance for aquifer restoration shall be provided in an amount no less than the cost estimate for aquifer restoration approved for each production area authorization. The executive director shall have discretion to apply financial assurance approved for one production area to the restoration of any other production area.(c) The owner or operator shall comply with §37.71 of this title (relating to Incapacity of Owners or Operators, Guarantors, or Financial Institutions), except financial assurance must be established within 30 days after such an event.</content><note type="source"><p>Source Note: The provisions of this §37.9045 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective September 14, 2000, 25 TexReg 8855; amended to be effective January 8, 2004, 29 TexReg 101; amended to be effective March 12, 2009, 34 TexReg 1610; amended to be effective June 25, 2015, 40 TexReg 3846.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scT/s37.9050"><num value="37.9050">§37.9050</num><heading>Financial Assurance Mechanisms</heading><content>(a) An owner or operator may satisfy the requirements of a fully funded trust or standby trust fund as provided in §37.201 of this title (relating to Trust Fund), except within 60 days following the executive director's final review and approval of closure or post closure expenditures for reimbursement, release of funds shall occur.(b) An owner or operator may satisfy the requirements of a surety bond guaranteeing payment as provided in §37.211 of this title (relating to Surety Bond Guaranteeing Payment) except:(1) the surety must also be licensed in the State of Texas;(2) cancellation may not occur during the 90 days beginning on the date of receipt of the notice of cancellation; and(3) the bond must guarantee that the owner or operator will provide alternate financial assurance within 30 days after receipt of a notice of cancellation of the bond.(c) An owner or operator may satisfy the requirements of an irrevocable standby letter of credit as provided in §37.231 of this title (relating to Irrevocable Standby Letter of Credit), except:(1) the letter of credit shall be automatically extended unless the issuer provides notice of cancellation at least 90 days before the current expiration date. Under the terms of the letter of credit, the 90 days shall begin on the date when both the owner or operator and the executive director have received the notice, as evidenced by the return receipts; and(2) in accordance with §37.231(h) of this title, the executive director shall draw on the letter of credit within 30 days after receipt of notice from the issuing institution that the letter of credit will not be extended, or within 60 days of an extension, if the owner or operator fails to establish and obtain approval of such alternate financial assurance from the executive director.(d) A statement of intent may be used by a governmental entity subject to this subchapter. The statement of intent shall be subject to the executive director's approval and shall include the following:(1) a statement that funds will be made immediately available upon demand by the executive director;(2) the signature of an authorized official who has the authority to bind the governmental entity into a financial obligation, and has the authority to sign the statement of intent;(3) name of facility(ies), license number, and physical and mailing addresses; and(4) corresponding current cost estimates.(e) An owner or operator may satisfy the requirements of financial assurance by establishing an external sinking fund as specified in this subsection. An external sinking fund has two components: a sinking fund account and a financial assurance mechanism such that the total of both equals, at all times, the current cost estimate. A sinking fund account is an account segregated from the owner's or operator's assets and is outside the owner's or operator's administrative control. As the value of the sinking fund account increases, the value of the second financial assurance mechanism decreases. When the external sinking fund account is equal to the current cost estimate, the second financial assurance mechanism will no longer be required to be maintained.(1) An external sinking fund account shall be approved by the executive director and administered by a third party that is regulated and examined by a federal or state agency.(2) The external sinking fund is established and maintained by setting aside funds periodically, at least annually.(f) An owner or operator may satisfy the requirements of financial assurance by obtaining insurance that conforms to the requirements of this subsection, in addition to the requirements specified in Subchapters A and B of this chapter (relating to General Financial Assurance Requirements; and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action), and submitting an originally-signed endorsement to the insurance policy to the executive director.(1) At a minimum, the insurer on the policy must be authorized to transact or be a surplus lines insurer eligible to engage in the business of insurance in Texas and have a minimum financial strength rating of "A" and a financial size category of "XV" as assigned by the A.M. Best Company.(2) The insurance policy must designate the commission as an additional insured.(3) The owner or operator must maintain the policy in full force and effect until the executive director consents to termination of the policy. Failure to pay the premium, without substitution of alternate financial assurance as specified in this subchapter, shall constitute a violation of these regulations, warranting such remedy as the executive director deems necessary. Such violation shall be deemed to begin upon receipt by the executive director of a notice of future cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the date of expiration of the policy.(4) The policy must provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy shall, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may elect to cancel, terminate, or fail to renew the policy by sending notice by certified mail to the owner or operator and the executive director. Cancellation, termination, or failure to renew may not occur, however, during 120 days beginning with the date of receipt of the notice by both the executive director and the owner or operator, as evidenced by the return receipts. The policy must also provide that the insurer shall pay the face amount of the insurance policy to the State of Texas for deposit as specified under §37.9045(a)(6) of this title (relating to Financial Assurance Requirements for Closure, Post Closure, and Corrective Action), if the executive director does not approve acceptable replacement financial assurance within 90 days of receiving notice by certified mail from the insurer of its election to cancel, terminate, or not renew the policy.(5) The insurance policy may not contain an exclusion for intentional, willful, knowing, or deliberate noncompliance with a statute, regulation, order, notice, or government instruction.(6) The wording of the endorsement to the insurance policy must be identical to the wording specified in §37.9052 of this title (relating to Endorsement).(7) The insurance policy must be issued for a face amount at least equal to the current cost estimate for closure, post closure, or corrective action, except when a combination of mechanisms are used in accordance with §37.41 of this title (relating to Use of Multiple Financial Assurance Mechanisms). Actual payments by the insurer shall not change the face amount, although the insurer's future liability shall be lowered by the amount of the payments.(8) The insurance policy must guarantee that funds shall be available to provide for closure, post closure, or corrective action of the facility. The policy shall also guarantee that once closure, post closure, or corrective action begins, the issuer shall be responsible for paying out funds, up to an amount equal to the face amount of the policy, upon the direction of the executive director, to such party or parties as the executive director specifies.(9) An owner or operator or any other person authorized to perform closure, post closure, or corrective action may request reimbursement for closure, post closure, or corrective action expenditures by submitting itemized bills to the executive director. The request shall include an explanation of the expenses and all applicable itemized bills. The owner or operator may request reimbursement for partial closure only if the remaining value of the policy is sufficient to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for closure, post closure, or corrective action activities, the executive director shall determine whether the closure, post closure, or corrective action expenditures are in accordance with the approved closure, post closure, or corrective action activities or are otherwise justified and, if so, shall instruct the insurer to make reimbursement in such amounts as the executive director specifies in writing. If the executive director has reason to believe that the maximum cost of closure, post closure, or corrective action over the remaining life of the facility will be greater than the face amount of the policy, the executive director may withhold reimbursement of such amounts as deemed prudent until the executive director determines, in accordance with Subchapters A and B of this chapter, that the owner or operator is no longer required to maintain financial assurance requirements for closure, post closure, or corrective action of the facility. If the executive director does not instruct the insurer to make such reimbursements, the executive director shall provide the owner or operator with a detailed written statement of reasons.(10) Commencing on the date that liability to make payments pursuant to the policy accrues, the insurer will thereafter annually increase the face amount of the policy. Such increase must be equivalent to the face amount of the policy, less any payments made, multiplied by an amount equivalent to 85% of the most recent investment rate or of the equivalent coupon issue yield announced by the United States Treasury for 26-week Treasury securities.(11) Upon notification by the executive director that the institutional control period has begun, the insurer will pay the remaining face amount of the policy to the State of Texas for deposit as specified under §37.9045(a)(6) of this title.(g) This subsection applies only to owner or operators required to provide financial assurance under Chapter 336, Subchapter M of this title (relating to Licensing of Radioactive Substances Processing and Storage Facilities). Owners or operators required to provide financial assurance under Chapter 336, Subchapter M of this title may satisfy the requirements of financial assurance by demonstrating that it passes a financial test as provided in §37.251 of this title (relating to Financial Test), except the owner or operator which has issued rated bonds must also meet the criteria of paragraphs (1) and (3) of this subsection, or the owner or operator which has not issued rated bonds must also meet the criteria of paragraphs (2) and (3) of this subsection.(1) The owner or operator must have:(A) tangible net worth of at least ten times the total current cost estimate (or the current amount required if a certification is used) for all closure activities;(B) assets located in the United States amounting to at least 90% of total assets or at least ten times the total current cost estimate (or the current amount required if a certification is used) for all closure activities;(C) a current rating for its most recent bond issuance of AAA, AA, or A as issued by Standard and Poor's, or Aaa, Aa, A as issued by Moody's; and(D) at least one class of equity securities registered under the Securities Exchange Act of 1934.(2) The owner or operator must have:(A) tangible net worth greater than $10 million, or of at least ten times the total current cost estimate (or the current amount required if a certification is used) for all closure activities, whichever is greater;(B) assets located in the United States amounting to at least 90% of total assets or at least ten times the total current cost estimate (or the current amount required if a certification is used) for all closure activities;(C) a ratio of cash flow divided by total liabilities greater than 0.15; and(D) a ratio of total liabilities divided by net worth less than 1.5.(3) To demonstrate that the owner or operator meets the test, it must submit the following items to the executive director:(A) a letter signed by the owner's or operator's chief financial officer and worded identically to the wording specified in §37.9025(a) of this title (relating to Wording of Financial Assurance Mechanisms); and(B) a written guarantee, hereafter referred to as "self-guarantee," signed by an authorized representative which meets the requirements specified in §37.261 of this title (relating to Corporate Guarantee). The wording of the self-guarantee shall be acceptable to the executive director and must include the following:(i) the owner or operator will fund and carry out the required closure or post closure activities, or upon issuance of an order by the executive director, the owner or operator will set up and fund a trust, as specified in §37.201 of this title in the name of the owner or operator, in the amount of the current cost estimates; and(ii) if, at any time, the owner's or operator's most recent bond issuance ceases to be rated in any category of "A" or above by either Standard and Poor's or Moody's, the owner or operator will provide notice in writing of such fact to the executive director within 20 days after publication of the change by the rating service. If the owner's or operator's most recent bond issuance ceases to be rated in any category of "A" or above by both Standard and Poor's and Moody's, the owner or operator no longer meets the requirements of paragraph (1) of this subsection.(h) This subsection only applies to owners or operators required to provide financial assurance under Chapter 336, Subchapter M of this title. A parent company controlling a majority of the voting stock of the owner or operator may satisfy the requirements of financial assurance by demonstrating that it passes a financial test as specified in §37.251 of this title, and by meeting the requirements of a corporate guarantee as specified in §37.261 of this title. The guarantor shall also comply with the requirements identified in this subsection.(1) The wording of the corporate guarantee as specified in §37.361 of this title (relating to Corporate Guarantee) shall also include:(A) the signatures of two officers of the owner or operator and two officers of the guarantor who are authorized to bind the respective entities; and(B) the corporate seals.(2) The guarantor shall also certify and submit to the executive director that the guarantor has:(A) majority control of the owner or operator;(B) full authority under the laws of the state under which it is incorporated and its articles of incorporation and bylaws to enter into this corporate guarantee;(C) full approval from its board of directors to enter into this corporate guarantee; and(D) authorization of each signatory.(i) A parent company guarantee may not be used in combination with other financial assurance mechanisms to satisfy the requirements of this subchapter. A financial test by the owner or operator may not be used in combination with any other financial assurance mechanisms to satisfy the requirements of this subchapter or in any situation where the owner or operator has a parent company holding majority control of the voting stock of the company.</content><note type="source"><p>Source Note: The provisions of this §37.9050 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective January 8, 2004, 29 TexReg 101; amended to be effective March 12, 2009, 34 TexReg 1610; amended to be effective June 25, 2015, 40 TexReg 3846.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scT/s37.9052"><num value="37.9052">§37.9052</num><heading>Endorsement</heading><content>An endorsement to the insurance policy for closure, post closure, or corrective action, as specified in §37.9050(f) of this title (relating to Financial Assurance Mechanisms), must be worded as specified in the Endorsement in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.9052 adopted to be effective January 8, 2004, 29 TexReg 101.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scT/s37.9059"><num value="37.9059">§37.9059</num><heading>Financial Assurance Requirements for Liability</heading><content>(a) Owners or operators required to demonstrate financial assurance for liability must comply with Subchapters A, E, F, and G of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Liability Coverage; Financial Assurance Mechanisms for Liability; and Wording of the Mechanisms for Liability).(b) An owner or operator subject to this section must demonstrate financial assurance for bodily injury and property damage to third parties caused by sudden accidental occurrences arising from operations of the compact waste disposal facility and/or federal facility waste disposal facility. The owner or operator must have and maintain liability coverage for sudden accidental occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs.(c) An owner or operator subject to this section must demonstrate financial assurance for bodily injury and property damage to third parties caused by non-sudden accidental occurrences arising from operations of the compact waste disposal facility and/or federal facility waste disposal facility. An owner or operator must have and maintain liability coverage for non-sudden accidental occurrences in the amount of at least $3 million per occurrence with an annual aggregate of at least $6 million, exclusive of legal defense costs.(d) Owners or operators who must meet the requirements of this section may combine the required per-occurrence coverage levels for sudden and non-sudden accidental occurrences into a single per-occurrence level, and combine the required annual aggregate coverage levels for sudden and non-sudden accidental occurrences into a single annual aggregate level. Owners or operators who combine coverage levels for sudden and non-sudden accidental occurrences must maintain liability coverage in the amount of at least $4 million per occurrence and $8 million annual aggregate.(e) Owners or operators subject to this subchapter may use any of the mechanisms specified in Subchapter F of this chapter except for the Financial Test for Liability and the Corporate Guarantee for Liability to demonstrate financial assurance for sudden and for non-sudden liability.(f) Owners or operators required to provide liability coverage may not use a claims-made insurance policy as security unless the applicant places in escrow, as provided by the executive director, an amount sufficient to pay an additional year of premiums for renewal of the policy by the state on notice of termination of coverage. The escrow account must be funded at the same time the insurance policy becomes effective.(g) The required limits of coverage in this subsection are distinct from any other liability requirements under this chapter.</content><note type="source"><p>Source Note: The provisions of this §37.9059 adopted to be effective January 8, 2004, 29 TexReg 101.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scU"><num value="U">SUBCHAPTER U</num><heading>FINANCIAL ASSURANCE FOR MEDICAL WASTE TRANSPORTERS</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scU/s37.9060"><num value="37.9060">§37.9060</num><heading>Applicability</heading><content>This subchapter applies to all owners or operators required to provide financial assurance under Chapter 330, Subchapter Y of this title (relating to Medical Waste Management). This subchapter establishes requirements and mechanisms for demonstrating financial assurance for automobile liability and pollution liability.</content><note type="source"><p>Source Note: The provisions of this §37.9060 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scU/s37.9065"><num value="37.9065">§37.9065</num><heading>Definitions</heading><content>Definitions for terms that appear throughout this subchapter are defined in Subchapter A of this chapter (relating to General Financial Assurance Requirements) and in Chapter 330, Subchapter Y of this title (relating to Medical Waste Management).</content><note type="source"><p>Source Note: The provisions of this §37.9065 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scU/s37.9070"><num value="37.9070">§37.9070</num><heading>Financial Assurance Requirements</heading><content>(a) Owners or operators registered to transport medical waste are required to demonstrate for automobile liability and pollution liability and must comply with Subchapters A and B of this chapter (relating to General Financial Assurance Requirements and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action), except the following sections do not apply:(1) §37.11 of this title (relating to Definitions); §37.31 of this title (relating to Submission of Documents); §37.41 of this title (relating to Use of Multiple Financial Assurance Mechanisms); §37.51 of this title (relating to Use of a Financial Assurance Mechanism for Multiple Facilities); and §37.52 of this title (relating to Use of a Universal Financial Assurance Mechanism for Multiple Facilities and Program Areas);(2) §37.131 of this title (relating to Annual Inflation Adjustments to Current Cost Estimates) and §37.161 of this title (relating to Establishment of a Standby Trust).(b) Owners or operators required to provide financial assurance under this subchapter may only use those financial assurance mechanisms as specified in §37.9075 of this title (relating to Financial Assurance Mechanisms).(c) Owners or operators who transport medical waste are required to demonstrate financial assurance for automobile liability and pollution liability in the dollar limits specified in this subsection and are responsible for any liability costs that exceed these dollar limits. Such owners or operators must provide:(1) a combined, single-limit automobile liability insurance policy with limits of at least $1 million per accident, exclusive of legal defense costs, that meets the requirements of subsection (d) of this section; and(2) a pollution liability policy with a limit of $500,000, exclusive of legal defense costs, if the transporter registers one to seven vehicles or a pollution liability policy with a limit of $1 million, exclusive of legal defense costs, if the transporter registers more than seven vehicles; or(3) an irrevocable letter of credit that meets the requirements specified in this subchapter, made payable to the Texas Commission on Environmental Quality in the following amount:(A) $10,000, if three or less self-contained trucks or transport vehicles (not tractor-trailer units) are registered;(B) $35,000, if more than three self-contained trucks or transporter vehicles (not tractor-trailer units) are registered;(C) $25,000, if three or less tractor-trailer vehicles are registered; or(D) $50,000, if more than three tractor-trailer vehicles are registered.(d) Owners or operators who transport medical waste shall comply with the following insurance requirements.(1) The owner or operator who transports medical waste must be the named insured on the certificate of insurance and the certificate holder must be listed as the Texas Commission on Environmental Quality.(2) The cancellation statement on the certificate shall read exactly as follows: "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail a 30-day written cancellation notice to the certificate holder."(3) Upon the executive director's receipt of a cancellation notice, the owner or operator who transports medical waste shall obtain alternate insurance coverage and submit evidence of such coverage to the commission before the effective date of the cancellation. Failure to do so will result in revocation of the registration.(4) Evidence of pollution liability coverage is demonstrated by submitting an MCS 90 form along with the original certificate for the automobile coverage. The schedule of insured vehicles must accompany the certificate of insurance.(5) Insurance coverage must be issued for at least one year by a carrier that is licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer in Texas. The insurer must be acceptable to the executive director.(6) An original or certified copy of the insurance policy shall be provided within 30 days from the date requested by the executive director.</content><note type="source"><p>Source Note: The provisions of this §37.9070 adopted to be effective March 21, 2000, 25 TexReg 2347; amended to be effective Februay 13, 2003, 28 TexReg 1196.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scU/s37.9075"><num value="37.9075">§37.9075</num><heading>Financial Assurance Mechanisms</heading><content>Owners or operators subject to this subchapter may use the following financial assurance mechanisms:(1) a certificate of insurance to demonstrate automobile liability coverage; and(2) an MCS 90 form or letter of credit to demonstrate pollution liability coverage. The letter of credit is subject to the requirements specified in §37.231 of this title (relating to Irrevocable Standby Letter of Credit), except:(A) whenever the terms "closure," "post closure," "corrective action," or "current cost estimate" are cited, replace with "pollution liability"; and(B) in §37.231(h) of this title, the following statement will be added: "Failure to obtain alternate insurance coverage and submit evidence of such coverage to the executive director before the effective date of the cancellation will result in revocation of the registration."</content><note type="source"><p>Source Note: The provisions of this §37.9075 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scU/s37.9080"><num value="37.9080">§37.9080</num><heading>Submission of Documents</heading><content>An owner or operator required to provide financial assurance must submit an originally signed financial assurance mechanism prior to issuance of registration. The signed financial assurance mechanism must be in effect at the time it is submitted.</content><note type="source"><p>Source Note: The provisions of this §37.9080 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scU/s37.9085"><num value="37.9085">§37.9085</num><heading>Incapacity of Owners or Operators Registered to Transport Medical Waste or of the Issuing Institution</heading><content>The requirements specified in §37.71 of this title (relating to Incapacity of Owners or Operators, Guarantors, or Issuing Institutions) shall be satisfied, except 60 days should be changed to 30 days as specified in §37.71(b) of this title.</content><note type="source"><p>Source Note: The provisions of this §37.9085 adopted to be effective March 21, 2000, 25 TexReg 2347.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scV"><num value="V">SUBCHAPTER V</num><heading>FINANCIAL ASSURANCE FOR CLASS B SEWAGE SLUDGE FOR LAND APPLICATION UNITS</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scV/s37.9090"><num value="37.9090">§37.9090</num><heading>Applicability</heading><content>(a) This subchapter applies to a responsible person, as defined in Texas Health and Safety Code, §361.121(a)(3), holding or applying for a Class B sewage sludge permit under §312.11 of this title (relating to Permits).(b) This subchapter does not apply to state or federal governmental entities whose debts and liabilities are the debts and liabilities of a state or the United States.(c) This subchapter does not apply to political subdivisions.(d) This subchapter establishes requirements and mechanisms for demonstrating financial assurance for environmental impairment and commercial liability insurance coverages.</content><note type="source"><p>Source Note: The provisions of this §37.9090 adopted to be effective October 20, 2005, 30 TexReg 6734.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scV/s37.9095"><num value="37.9095">§37.9095</num><heading>Definitions</heading><content>(a) Definitions for terms that appear throughout this subchapter are defined in Subchapter A of this chapter (relating to General Financial Assurance Requirements), §312.8 of this title (relating to General Definitions), and Solid Waste Disposal Act, §361.121 (relating to Land Application of Certain Sludge; Permit Required).(b) In the liability insurance requirements of this subchapter, the terms "bodily injury" and "property damage" have the meanings given these terms by applicable state law. However, these terms do not include those liabilities which, consistent with standard industry practices, are excluded from coverage in liability policies for bodily injury and property damage. The commission intends the meanings of other terms used in the liability insurance requirements to be consistent with their common meanings within the insurance industry.(c) For the purposes of this subchapter, the term "corrective action" includes the activities to remediate events resulting from a permitted sewage sludge land application facility in accordance with Chapter 350 of this title (relating to Texas Risk Reduction Program) or otherwise directed by the executive director.</content><note type="source"><p>Source Note: The provisions of this §37.9095 adopted to be effective October 20, 2005, 30 TexReg 6734.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scV/s37.9100"><num value="37.9100">§37.9100</num><heading>Commercial Liability Insurance</heading><content>(a) A responsible person subject to this subchapter shall obtain and maintain a commercial liability insurance policy that must:(1) reflect the responsible person as the insured;(2) reflect total coverage of not less than $3 million per occurrence with an annual aggregate of not less than $3 million, exclusive of legal defense costs;(3) be issued by an insurance company licensed to transact the business of insurance in Texas or eligible to provide insurance as an excess or surplus lines insurer in Texas that has a rating of A- or better by A.M. Best Company;(4) designate the Texas Commission on Environmental Quality as an additional insured; and(5) be evidenced by either a certificate of insurance worded identically to the wording specified in §37.9145 of this title (relating to Certificate of Insurance for Commercial Liability) or an endorsement worded identically to the wording specified in §37.9150 of this title (relating to Endorsement for Commercial Liability).(b) The insurance afforded under the policy must provide that:(1) it guarantees bodily injury and property damage protection by allowing compensation to all persons injured or property damaged as a result of Class B sewage sludge land application and entitled to compensation under the applicable provisions of state law;(2) bankruptcy or insolvency of the insured shall not relieve the insurer of its obligations under the policy to which the required certificate of insurance or endorsement is attached;(3) the insurer is liable for the payment of amounts within any deductible applicable to the policy, with a right of reimbursement from the insured for any such payment made by the insurer;(4) cancellation of the insurance, whether by the insurer, the insured, or a parent corporation providing insurance coverage for its subsidiary, or by a firm having an insurable interest in and obtaining liability insurance on behalf of the owner or operator of the facility, will be effective only upon written notice and only after the expiration of 60 days after a copy of such written notice is received by the executive director;(5) any other termination of this insurance will be effective only upon written notice and only after the expiration of 30 days after a copy of such written notice is received by the executive director;(6) whenever requested by the executive director, the insurer agrees to furnish to the executive director a signed duplicate original of the policy and all endorsements; and(7) the insurer shall notify the executive director within 30 days by certified mail in the event the insurance policy expires or is not renewed unless prior notice has been given in accordance with this subsection.(c) A single $3 million annual aggregate coverage and per occurrence limit may be obtained for all facilities for which the responsible person is required to provide commercial liability insurance.(d) The responsible person shall notify the executive director in writing within 30 days whenever a claim results in a reduction in the amount of liability coverage required by this subchapter.(e) The responsible person must maintain the policy in full force and effect until the executive director consents to termination of the policy as provided in §37.9140 of this title (relating to Termination of Mechanisms). Failure to pay the premium, without substitution of alternate commercial liability insurance coverage as specified in this subchapter, shall constitute a violation of these regulations, warranting such remedy as the executive director deems necessary including revocation of the permit.</content><note type="source"><p>Source Note: The provisions of this §37.9100 adopted to be effective October 20, 2005, 30 TexReg 6734.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scV/s37.9105"><num value="37.9105">§37.9105</num><heading>Environmental Impairment Insurance</heading><content>(a) A responsible person subject to this subchapter shall obtain and maintain an environmental impairment insurance policy that must:(1) reflect the responsible person as the insured;(2) reflect total coverage of not less than $3 million per occurrence with a policy limit of not less than $3 million, exclusive of legal defense costs;(3) be issued by an insurance company licensed to transact the business of insurance in Texas or eligible to provide insurance as an excess or surplus lines insurer in Texas that has a rating of A- or better by A.M. Best Company;(4) designate the Texas Commission on Environmental Quality as an additional insured; and(5) be evidenced by a certificate of insurance worded identically to the wording specified in §37.9155 of this title (relating to Certificate of Insurance for Environmental Impairment).(b) The insurance afforded under the policy must provide the following.(1) The insurance policy must guarantee that funds be available to provide for corrective action related to the facility. The policy must also guarantee that once corrective action begins, the insurer shall be responsible for paying out funds, up to an amount equal to the policy limit, upon the direction of the executive director, to such party or parties as the executive director specifies.(2) The insurer may elect to cancel, terminate, or fail to renew the policy by sending notice by certified mail to the responsible person and the executive director. Cancellation, termination, or failure to renew may not occur, however, during 120 days beginning with the date of receipt of the notice of cancellation, termination, or failure to renew by both the executive director and the responsible person, as evidenced by the return receipts.(3) Cancellation, termination, or failure to renew may not occur and the policy must remain in full force and effect in the event that on or before the date of expiration:(A) corrective action is ordered by the executive director or by a United States district court or other court of competent jurisdiction;(B) the responsible person is named as debtor in a voluntary or involuntary proceeding under Title 11(Bankruptcy), United States Code; or(C) the premium due is paid.(4) Each policy must contain a provision allowing assignment of the policy to a successor responsible person. Such assignment may be conditional upon consent of the insurer, provided such consent is not unreasonably refused.(5) Whenever requested by the executive director, the insurer agrees to furnish to the executive director a signed duplicate original of the policy and all endorsements.(c) A single $3 million policy limit and per occurrence limit may be obtained for all facilities for which the responsible person is required to provide environmental impairment insurance.(d) The responsible person must maintain the policy in full force and effect until the executive director consents to termination of the policy as provided in §37.9140 of this title (relating to Termination of Mechanisms). Failure to pay the premium, without substitution of alternate environmental impairment insurance coverage as specified in this subchapter, shall constitute a violation of these regulations, warranting such remedy as the executive director deems necessary including revocation of the permit.(e) The policy may not contain an exclusion for intentional, willful, knowing, or deliberate noncompliance with a statute, regulation, order, notice, or government instruction.</content><note type="source"><p>Source Note: The provisions of this §37.9105 adopted to be effective October 20, 2005, 30 TexReg 6734; amended to be effective December 13, 2010, 35 TexReg 10983.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scV/s37.9110"><num value="37.9110">§37.9110</num><heading>Submission of Documents</heading><content>(a) As part of a Class B sewage sludge land application permit application, a responsible person subject to this subchapter must submit:(1) either a Certificate of Insurance for Commercial Liability or Endorsement for Commercial Liability as evidence of commercial liability insurance coverage; and(2) a Certificate of Insurance for Environmental Impairment as evidence of environmental impairment insurance coverage.(b) The mechanisms must reflect that insurance coverage is in effect on or before the date that the permit application is received.(c) When requested by the executive director, a responsible person subject to this subchapter must submit proof of Environmental Impairment and/or Commercial Liability insurance.</content><note type="source"><p>Source Note: The provisions of this §37.9110 adopted to be effective October 20, 2005, 30 TexReg 6734.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scV/s37.9115"><num value="37.9115">§37.9115</num><heading>Approval of Mechanisms</heading><content>The executive director shall determine the acceptability of the mechanisms submitted.</content><note type="source"><p>Source Note: The provisions of this §37.9115 adopted to be effective October 20, 2005, 30 TexReg 6734.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scV/s37.9120"><num value="37.9120">§37.9120</num><heading>Incapacity of Responsible Person or Insurance Company</heading><content>(a) A responsible person must notify the executive director by certified mail of the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), United States Code, naming the responsible person, within ten business days after the commencement of the proceeding.(b) A responsible person shall be deemed to be without the required financial assurance coverage in the event the insurance company(ies) providing either the commercial liability or environmental impairment policies:(1) declares bankruptcy; or(2) experiences an insurance rating reduction resulting in a rating below A- as published by the A.M. Best Company.(c) The responsible person must provide evidence of insurance coverage as described in this subchapter within 60 days after any events as described in subsection (b) of this section.</content><note type="source"><p>Source Note: The provisions of this §37.9120 adopted to be effective October 20, 2005, 30 TexReg 6734.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scV/s37.9125"><num value="37.9125">§37.9125</num><heading>Transfer of Ownership or Operational Control</heading><content>When a transfer of ownership or operational control occurs, the responsible person transferring ownership or operational control shall comply with the requirements of this subchapter, until the executive director determines that the responsible person assuming the ownership or operational control of the facility has demonstrated compliance with the requirements of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §37.9125 adopted to be effective October 20, 2005, 30 TexReg 6734.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scV/s37.9130"><num value="37.9130">§37.9130</num><heading>Drawing on the Financial Assurance Mechanisms</heading><content>The executive director may make a written demand for performance under the environmental impairment policy when a responsible person who is required to comply with this subchapter has failed to perform corrective action when required.</content><note type="source"><p>Source Note: The provisions of this §37.9130 adopted to be effective October 20, 2005, 30 TexReg 6734.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scV/s37.9135"><num value="37.9135">§37.9135</num><heading>Continuous Financial Assurance Required</heading><content>The responsible person required by this subchapter to provide financial assurance for environmental impairment and commercial liability insurance coverage shall maintain continuous financial assurance coverage for the duration of the permit or, if corrective action is required, after corrective action has been completed and until such time as the executive director has provided written consent to termination in accordance with §37.9140 of this title (relating to Termination of Mechanisms).</content><note type="source"><p>Source Note: The provisions of this §37.9135 adopted to be effective October 20, 2005, 30 TexReg 6734.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scV/s37.9140"><num value="37.9140">§37.9140</num><heading>Termination of Mechanisms</heading><content>Upon written request of the responsible person, the executive director shall provide written consent to termination of the insurance coverages described in this subchapter when:(1) a responsible person substitutes and receives approval from the executive director for alternate insurance coverages as specified in this subchapter; or(2) the permit is revoked, cancelled, expired, or, if corrective action is required, after such corrective action has been completed and approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §37.9140 adopted to be effective October 20, 2005, 30 TexReg 6734.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scV/s37.9145"><num value="37.9145">§37.9145</num><heading>Certificate of Insurance for Commercial Liability</heading><content>A certificate of insurance for commercial liability, as specified in §37.9100 of this title (relating to Commercial Liability Insurance), must be worded as specified in the Certificate of Insurance for Commercial Liability in this section, except that the instructions in parentheses are to be replaced with the relevant information and the parentheses deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.9145 adopted to be effective October 20, 2005, 30 TexReg 6734.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scV/s37.9150"><num value="37.9150">§37.9150</num><heading>Endorsement for Commercial Liability</heading><content>A liability endorsement as specified in §37.9100 of this title (relating to Commercial Liability Insurance) must be worded as specified in the Endorsement for Commercial Liability in this section, except that instructions in parentheses are to be replaced with the relevant information and the parentheses deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.9150 adopted to be effective October 20, 2005, 30 TexReg 6734.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scV/s37.9155"><num value="37.9155">§37.9155</num><heading>Certificate of Insurance for Environmental Impairment</heading><content>A certificate of insurance for environmental impairment, as specified in §37.9105 of this title (relating to Environmental Impairment Insurance), must be worded as specified in the Certificate of Insurance for Environmental Impairment in this section, except that the instructions in parentheses are to be replaced with the relevant information and the parentheses deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.9155 adopted to be effective October 20, 2005, 30 TexReg 6734.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scW"><num value="W">SUBCHAPTER W</num><heading>FINANCIAL ASSURANCE FOR QUARRIES</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9160"><num value="37.9160">§37.9160</num><heading>Applicability</heading><content>This subchapter applies to an owner or operator required to provide financial assurance under Chapter 311 of this title (relating to Watershed Protection). This subchapter does not apply to state or federal governmental entities whose debts and liabilities are the debts and liabilities of a state or the United States. This subchapter establishes requirements and mechanisms for demonstrating financial assurance for reclamation and restoration.</content><note type="source"><p>Source Note: The provisions of this §37.9160 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9165"><num value="37.9165">§37.9165</num><heading>Definitions</heading><content>Definitions for terms that appear throughout this subchapter may be found in this section, in Subchapter A of this chapter (relating to General Financial Assurance Requirements), as well as Chapter 311, Subchapter H of this title (relating to Regulation of Quarries in the John Graves Scenic Riverway), except where the following terms are used in this subchapter, the following definition applies: Current cost estimate--The amount of financial assurance required under Chapter 311, Subchapter H of this title.</content><note type="source"><p>Source Note: The provisions of this §37.9165 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9170"><num value="37.9170">§37.9170</num><heading>Financial Assurance Requirements for Reclamation and Restoration</heading><content>(a) In addition to the requirements of this subchapter, owners and operators required to demonstrate financial assurance for reclamation or restoration must comply with §§37.141, 37.151, and 37.161 of this title (relating to Increase in Current Cost Estimate, Decrease in Current Cost Estimate, and Establishment of a Standby Trust) and Subchapter A of this chapter (relating to General Financial Assurance Requirements), except:(1) §37.21 of this title (relating to Wording and Approval of Mechanisms);(2) §37.31 of this title (relating to Submission of Documents);(3) §37.52 of this title (relating to Use of a Universal Financial Assurance Mechanism for Multiple Facilities and Program Areas); and(4) §37.161 of this title.(b) The owner or operator of each facility required by this chapter to provide financial assurance for reclamation or restoration must establish financial assurance in an amount no less than the current cost estimate.(c) The mechanisms submitted for compliance with this subchapter must be worded as they appear in this subchapter. The executive director shall determine the acceptability of the mechanisms submitted.(d) An owner or operator required by this subchapter to provide financial assurance must submit an originally signed financial assurance mechanism with the application for a general or individual permit required under Chapter 311 of this title (relating to Watershed Protection). The signed financial assurance mechanism must be effective at the time it is submitted.(e) Owners or operators may use a single financial assurance mechanism as specified in this subchapter for both reclamation and restoration. The amount of the funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each individual purpose.(f) The owner or operator of a facility required by this subchapter to provide financial assurance for reclamation or restoration shall provide continuous financial assurance until the executive director provides written consent to terminate in accordance with §37.61 of this title (relating to Termination of Mechanisms).(g) The executive director may call on the financial assurance mechanism(s) when an owner or operator who is required to comply with this chapter has:(1) failed to perform reclamation or restoration when required;(2) failed to provide an alternate financial assurance mechanism, when required; or(3) failed to provide continuous financial assurance coverage.(h) An owner or operator who uses a surety bond or an irrevocable letter of credit to satisfy the requirements of this subchapter shall establish a standby trust. The standby trust must meet the requirements of §37.161 of this title except that the wording of a standby trust agreement must follow §37.9190 of this title (relating to Trust Fund Wording) and the requirements indicated in §37.9185 of this title (relating to Trust Fund Requirements) rather than the citations reflected in §37.161 of this title.</content><note type="source"><p>Source Note: The provisions of this §37.9170 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9175"><num value="37.9175">§37.9175</num><heading>Financial Assurance Mechanisms for Reclamation</heading><content>Owners and operators subject to this subchapter may use any of the following financial assurance mechanisms to demonstrate financial assurance for reclamation:(1) a trust agreement as specified in §37.9185 of this title (relating to Trust Fund Requirements);(2) a surety bond guaranteeing payment as specified in §37.9195 of this title (relating to Surety Bond Guaranteeing Payment Requirements);(3) an irrevocable standby letter of credit as specified in §37.9205 of this title (relating to Irrevocable Standby Letter of Credit Requirements);(4) insurance as specified in §37.9215 of this title (relating to Insurance Requirements);(5) a financial test as specified in §37.9225 of this title (relating to Financial Test Requirements); or(6) a corporate guarantee as specified in §37.9235 of this title (relating to Corporate Guarantee Requirements).</content><note type="source"><p>Source Note: The provisions of this §37.9175 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9180"><num value="37.9180">§37.9180</num><heading>Financial Assurance Requirements for Restoration</heading><content>Owners and operators subject to this subchapter may use any of the following financial assurance mechanisms to demonstrate financial assurance for restoration:(1) a trust agreement as specified in §37.9185 of this title (relating to Trust Fund Requirements);(2) a surety bond guaranteeing payment as specified in §37.9195 of this title (relating to Surety Bond Guaranteeing Payment Requirements);(3) an irrevocable standby letter of credit as specified in §37.9205 of this title (relating to Irrevocable Standby Letter of Credit Requirements);(4) insurance as specified in §37.9215 of this title (relating to Insurance Requirements);(5) a financial test as specified in §37.9225 of this title (relating to Financial Test Requirements); or(6) a corporate guarantee as specified in §37.9235 of this title (relating to Corporate Guarantee Requirements).</content><note type="source"><p>Source Note: The provisions of this §37.9180 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9185"><num value="37.9185">§37.9185</num><heading>Trust Fund Requirements</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance by establishing a fully funded trust that conforms to the requirements of this subchapter and by submitting an originally signed duplicate of the executed trust agreement to the executive director.(b) The trustee must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency.(c) The wording of the trust agreement must be identical to the wording specified in §37.9190(a) of this title (relating to Trust Agreement Wording), including a formal certification of acknowledgment as specified in §37.9190(b) of this title.(d) Schedule A of the trust agreement as specified in §37.9190(a) of this title must be updated within 60 days after an approved change in the amount of the current cost estimate.(e) A fully funded trust requires that the initial payment into the trust fund be at least equal to the current cost estimate, or when a combination of mechanisms are used in accordance with §37.41 of this title (relating to Use of Multiple Financial Assurance Mechanisms), the initial payment plus the amount of the combined mechanism(s) must be at least equal to the current cost estimate. A receipt from the trustee for the initial payment must be submitted by the owner or operator to the executive director with the originally signed duplicate of the trust agreement.(f) After the initial payment for a fully funded trust, whenever the current cost estimate changes, the owner or operator must compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new estimate, the owner or operator, within 30 days after the change in the current cost estimate, must either deposit an amount into the fund so that its value after this deposit at least equals the amount of the current cost estimate, or obtain an additional financial assurance mechanism as specified in this subchapter to cover the difference.(g) If the value of the trust fund is greater than the total amount of the current cost estimate, the owner or operator may submit a written request to the executive director for release of the amount in excess of the current cost estimate.(h) Within 60 days after receiving a request from the owner or operator for release of funds as specified in subsection (g) of this section, the executive director shall instruct the trustee to release to the owner or operator such funds as the executive director specifies in writing.(i) An owner or operator or any other person authorized by the executive director to perform reclamation at the quarry or restoration related to the quarry, may request reimbursement expenditures for reclamation at the quarry or restoration related to the quarry by submitting itemized bills to the executive director. The request shall include an explanation of the expenses and all applicable itemized bills. The owner or operator may request reimbursements for partial reclamation or restoration only if sufficient funds are remaining in the trust fund to cover the maximum remaining costs for reclamation at the quarry or restoration related to the quarry. After receiving bills for reclamation or restoration activities, the executive director shall instruct the trustee to make reimbursement in such amounts as the executive director specifies in writing, if the executive director determines that the partial or final reclamation or restoration expenditures are in accordance with the approved reclamation or restoration plan activities, or are otherwise justified. If the executive director has reason to believe that the cost of reclamation at the quarry or restoration related to the quarry will be greater than the value of the trust fund, the executive director may withhold reimbursement of such amounts as deemed prudent until it is determined, in accordance with Subchapters A and B of this chapter (relating to General Financial Assurance Requirements and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action) that the owner or operator is no longer required to maintain financial assurance for reclamation or restoration.(j) If an owner or operator substitutes other financial assurance as specified in this section for all or part of the trust fund, the owner or operator may submit a written request to the executive director for release of the amount in excess of the current cost estimate covered by the trust fund.</content><note type="source"><p>Source Note: The provisions of this §37.9185 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9190"><num value="37.9190">§37.9190</num><heading>Trust Agreement Wording</heading><content>(a) A trust agreement for reclamation or restoration, as specified in §37.9185 of this title (relating to Trust Fund Requirements), must be worded as specified in the Trust Agreement in this subsection, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic(b) The Certification of Acknowledgment in this subsection is the certification of acknowledgment that must accompany the trust agreement for a trust fund as specified in §37.9185 of this title. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.9190 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9195"><num value="37.9195">§37.9195</num><heading>Surety Bond Guaranteeing Payment Requirements</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance by obtaining a surety bond that conforms to the requirements of this subchapter and by submitting an originally signed surety bond to the executive director.(b) The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on federal bonds in Circular 570 of the United States Department of the Treasury.(c) The wording of the surety bond must be identical to the wording specified in §37.9200 of this title (relating to Payment Bond Wording).(d) The bond must guarantee that the owner or operator shall:(1) fund the standby trust fund as required in §37.161 of this title (relating to Establishment of a Standby Trust) in an amount equal to the penal sum of the bond before the beginning of final reclamation at the quarry or restoration related to the quarry;(2) fund the standby trust fund as required in §37.161 of this title in an amount equal to the penal sum within 15 days after a written directive by the executive director or commission to begin reclamation or restoration, or within 15 days after an order to begin final reclamation or restoration is issued by the United States district court or other court of competent jurisdiction; or(3) provide alternate financial assurance as specified in this subchapter, and obtain the executive director's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the executive director of a notice of cancellation of the bond from the surety.(e) Under the terms of the bond, the surety shall become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.(f) The penal sum of the bond must be in an amount at least equal to the current cost estimate, except as provided in §§37.41, 37.51, or 37.9170 of this title (relating to Use of Multiple Financial Assurance Mechanisms, Use of a Financial Assurance Mechanism for Multiple Facilities, and Financial Assurance Requirements for Reclamation and Restoration).(g) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the executive director. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the executive director, as evidenced by the return receipts.</content><note type="source"><p>Source Note: The provisions of this §37.9195 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9200"><num value="37.9200">§37.9200</num><heading>Payment Bond Wording</heading><content>A surety bond guaranteeing payment for reclamation or restoration, as specified in §37.9195 of this title (relating to Surety Bond Guaranteeing Payment Requirements), must be worded as specified in the Payment Bond in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.9200 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9205"><num value="37.9205">§37.9205</num><heading>Irrevocable Standby Letter of Credit Requirements</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance by obtaining an irrevocable standby letter of credit that conforms to the requirements of this subchapter and submit an originally signed irrevocable standby letter of credit to the executive director.(b) The financial institution issuing the irrevocable standby letter of credit shall be an entity that has the authority to issue irrevocable standby letters of credit and whose operations are regulated and examined by a federal or state agency.(c) The wording of the irrevocable standby letter of credit must be identical to the wording specified in §37.9210 of this title (relating to Irrevocable Standby Letter of Credit Wording).(d) The originally signed irrevocable standby letter of credit must be accompanied by a letter from the owner or operator referring to the irrevocable standby letter of credit by number, issuing institution, and date, and providing the following information for each quarry:(1) the permit number;(2) name and physical and mailing addresses of the quarry; and(3) the amount of funds assured for reclamation or restoration by the irrevocable standby letter of credit.(e) The letter of credit must be irrevocable and issued for a period of at least one year. The irrevocable standby letter of credit must provide that the expiration date shall be automatically extended for a period of at least one year unless, at least 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the executive director by certified mail of a decision not to extend the expiration date. Under the terms of the irrevocable standby letter of credit, the 120 days shall begin on the date when both the owner or operator and the executive director have received the notice, as evidenced by the return receipts.(f) The irrevocable standby letter of credit must be issued in an amount at least equal to the current cost estimate, except as provided in §§37.41, 37.51, or 37.9170 of this title (relating to Use of Multiple Financial Assurance Mechanisms, Use of a Financial Assurance Mechanism for Multiple Facilities, and Financial Assurance Requirements for Reclamation and Restoration).(g) Following a determination that the owner or operator has failed to perform reclamation or restoration in accordance with the reclamation or restoration plan, other applicable requirements of the permit(s), or written directive by the executive director or commission or that the owner or operator has failed to perform reclamation at the quarry or restoration related to the quarry in accordance with the permit, other applicable requirements, or written directive by the executive director or commission, the executive director may draw on the irrevocable standby letter of credit.(h) If the owner or operator does not establish alternate financial assurance as specified in this subchapter and obtain written approval of such alternate assurance from the executive director within 90 days after receipt by both the owner or operator and the executive director of a notice from the issuing institution that it has decided not to extend the irrevocable standby letter of credit beyond the current expiration date, the executive director shall draw on the irrevocable standby letter of credit. The executive director may delay the drawing if the issuing institution grants an extension of the term of the letter of credit. During the last 30 days of any such extension, the executive director shall draw on the irrevocable standby letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this subchapter and obtain written approval of such assurance from the executive director.(i) Upon termination, in accordance with §37.61 of this title (relating to Termination of Mechanisms), the executive director shall return the irrevocable standby letter of credit to the issuing institution.</content><note type="source"><p>Source Note: The provisions of this §37.9205 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9210"><num value="37.9210">§37.9210</num><heading>Irrevocable Standby Letter of Credit Wording</heading><content>An irrevocable standby letter of credit for reclamation or restoration, as specified in §37.9205 of this title (relating to Irrevocable Standby Letter of Credit Requirements), must be worded as specified in the Irrevocable Standby Letter of Credit in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.9210 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9215"><num value="37.9215">§37.9215</num><heading>Insurance Requirements</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance by obtaining insurance that conforms to the requirements of this subchapter and submitting an originally signed certificate to the executive director.(b) At a minimum, the insurer must be licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in Texas.(c) The wording of the certificate of insurance must be identical to the wording specified in §37.9220 of this title (relating to Certificate of Insurance Wording).(d) The insurance policy must be issued for a face amount at least equal to the current cost estimate for reclamation or restoration, except when a combination of mechanisms are used in accordance with §37.41 and §37.9170 of this title (relating to Use of Multiple Financial Assurance Mechanisms and Financial Assurance Requirements for Reclamation and Restoration). Actual payments by the insurer shall not change the face amount, although the insurer's future liability shall be lowered by the amount of the payments.(e) The insurance policy must guarantee that funds shall be available to provide for reclamation at the quarry or restoration related to the quarry. The policy shall also guarantee that once reclamation at the quarry or restoration related to the quarry begins, the issuer shall be responsible for paying out funds, up to an amount equal to the face amount of the policy, upon the direction of the executive director, to such party or parties as the executive director specifies.(f) An owner or operator or any other person authorized to perform reclamation or restoration may request reimbursement for expenditures for reclamation at the quarry or restoration related to the quarry by submitting itemized bills to the executive director. The request shall include an explanation of the expenses and all applicable itemized bills. The owner or operator may request reimbursement for partial reclamation at the quarry or restoration related to the quarry only if the remaining value of the policy is sufficient to cover the maximum remaining costs of reclamation at the quarry or restoration related to the quarry. Within 60 days after receiving bills for reclamation at the quarry or restoration related to the quarry, the executive director shall determine whether the reclamation or restoration expenditures are in accordance with the approved reclamation or restoration activities or are otherwise justified, and if so, shall instruct the insurer to make reimbursement in such amounts as the executive director specifies in writing. If the executive director has reason to believe that the maximum cost of reclamation or restoration will be greater than the face amount of the policy, the executive director may withhold reimbursement of such amounts as deemed prudent until the executive director determines, in accordance with this subchapter, that the owner or operator is no longer required to maintain financial assurance requirements for reclamation at the quarry or restoration related to the quarry of the facility. If the executive director does not instruct the insurer to make such reimbursements, the executive director shall provide the owner or operator with a detailed written statement of reasons.(g) The owner or operator shall maintain the policy in full force and effect until the executive director consents to termination of the policy. Failure to pay the premium, without substitution of alternate financial assurance as specified in this subchapter, shall constitute a violation of these regulations, warranting such remedy as the executive director deems necessary. Such violation shall be deemed to begin upon receipt by the executive director of a notice of future cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the date of expiration of the policy.(h) The policy must provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy shall, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may elect to cancel, terminate, or fail to renew the policy by sending notice by certified mail to the owner or operator and the executive director. Cancellation, termination, or failure to renew may not occur, however, during 120 days beginning with the date of receipt of the notice by both the executive director and the owner or operator, as evidenced by the return receipts.(i) Cancellation, termination, or failure to renew may not occur and the policy shall remain in full force and effect in the event that on or before the date of expiration:(1) the executive director deems the quarry abandoned;(2) the permit expires, is terminated, is revoked, or a new or renewal permit is denied;(3) reclamation or restoration is ordered by the executive director of the commission or by a United States district court or other court of competent jurisdiction;(4) the owner or operator is named as debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), United States Code; or(5) the premium due is paid.(j) Each policy must contain a provision allowing assignment of the policy to a successor owner or operator. Such assignment may be conditional upon consent of the insurer, provided such consent is not unreasonably refused.</content><note type="source"><p>Source Note: The provisions of this §37.9215 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9220"><num value="37.9220">§37.9220</num><heading>Certificate of Insurance Wording</heading><content>A certificate of insurance for reclamation or restoration, as specified in §37.9215 of this title (relating to Insurance Requirements), must be worded as specified in the Certificate of Insurance in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.9220 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9225"><num value="37.9225">§37.9225</num><heading>Financial Test Requirements</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance by establishing a financial test that conforms to the requirements of this subchapter.(b) To pass this test, the owner or operator must meet the criteria of either paragraph (1) or (2) of this subsection.(1) The owner or operator shall have:(A) two of the following three ratios: a ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5;(B) net working capital and tangible net worth each at least six times the sum of the current cost estimates, liability coverage requirements, and any other financial assurance obligations under the Texas Commission on Environmental Quality (TCEQ) or other federal or state environmental regulations assured by a financial test;(C) tangible net worth of at least $10 million; and(D) assets located in the United States amounting to at least 90% of the owner's or operator's total assets or at least six times the sum of the current cost estimates, liability coverage requirements, and any other financial assurance obligations under the TCEQ or other federal or state environmental regulations assured by a financial test.(2) The owner or operator shall have:(A) a current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's;(B) tangible net worth at least six times the sum of the current cost estimates, liability coverage requirements, and any other financial assurance obligations under the TCEQ or other federal or state environmental regulations assured by a financial test;(C) tangible net worth of at least $10 million; and(D) assets located in the United States amounting to at least 90% of the owner's or operator's total assets or at least six times the sum of the current cost estimates, liability coverage requirements, and any other financial assurance obligations under the TCEQ or other federal or state environmental regulations assured by a financial test.(c) To demonstrate that the requirements of the test are being met, the owner or operator shall submit the following items to the executive director:(1) a letter signed by the owner's or operator's chief financial officer worded identically to the wording specified in §37.9230 of this title (relating to Financial Test Wording);(2) a copy of the owner's or operator's independently audited year-end financial statements for the latest fiscal year including the "unqualified opinion" of the auditor;(3) a special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:(A) the accountant has compared the data that the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and(B) in connection with that procedure:(i) such amounts were found to be in agreement; or(ii) no matters came to the attention of the accountant that caused the accountant to believe that the specified data should be adjusted;(4) a written verification of the current bond rating from the applicable bond rating agency, if the owner or operator is using Alternative II of the letter signed by the owner's or operator's chief financial officer specified in §37.9230 of this title; and(5) a schedule identifying intangible assets used to calculate tangible net worth.(d) After the initial submission of items specified in subsection (c) of this section, the owner or operator shall send updated information to the executive director within 90 days after the close of each succeeding fiscal year. This information shall consist of all items specified in subsection (c) of this section.(e) If the owner or operator no longer meets the requirements of subsection (b) of this section, a notice shall be sent to the executive director of intent to establish alternate financial assurance as specified in this subchapter. The notice must be sent by certified mail within 90 days after the end of the fiscal year for which the year-end financial data shows that the owner or operator no longer meets the requirements. The owner or operator shall provide the alternate financial assurance within 120 days after the end of such fiscal year.(f) The executive director may, based on a reasonable belief that the owner or operator may no longer meet the requirements of subsection (b) of this section, require reports of financial condition at any time from the owner or operator in addition to those specified in subsection (c) of this section. If the executive director finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of subsection (b) of this section, the owner or operator shall provide alternate financial assurance as specified in this subchapter within 30 days after notification of such a finding.(g) The executive director may disallow use of this test on the basis of qualifications in the opinion expressed in the independent certified public accountant's report on examination of the owner's or operator's financial statements. An adverse opinion or disclaimer of opinion shall be cause for disallowance. The executive director shall evaluate other qualifications on an individual basis. The owner or operator shall provide alternate financial assurance as specified in this subchapter within 30 days after notification of the disallowance.(h) Owners and operators choosing to meet the financial assurance requirement by using a financial test agree to fund the amount demonstrated for restoration within 60 days of written notification by the executive director to any party or parties specified by the executive director.</content><note type="source"><p>Source Note: The provisions of this §37.9225 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9230"><num value="37.9230">§37.9230</num><heading>Financial Test Wording</heading><content>A letter from the chief financial officer for restoration or reclamation, as specified in §37.9225 of this title (relating to Financial Test Requirements), must be worded as specified in the Financial Test in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.9230 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9235"><num value="37.9235">§37.9235</num><heading>Corporate Guarantee Requirements</heading><content>(a) An owner or operator may satisfy the requirements of financial assurance for reclamation or restoration by obtaining a written guarantee, hereafter referred to as "corporate guarantee," which conforms to the requirements of this subchapter.(b) The guarantor shall be the direct or higher-tier parent corporation of the owner or operator or a corporation with a substantial business relationship with the owner or operator. The guarantor must meet the requirements for owners or operators as specified in §37.9225 of this title (relating to Financial Test Requirements). The guarantor must comply with the terms of the corporate guarantee.(c) The wording of the corporate guarantee must be identical to the wording specified in §37.9240 of this title (relating to Corporate Guarantee Wording). The corporate guarantee shall accompany the items sent to the executive director as specified in §37.9225(c) of this title.(d) If the guarantor has a substantial business relationship with the owner or operator, in addition to the requirements specified in this chapter for the financial test and corporate guarantee, the guarantor will submit a description of the substantial business relationship and the value received in consideration of the guarantee; an original or certified original copy of the Resolution by the Board of Directors or a certified letter from the chief financial officer, authorizing the corporate guarantee on behalf of the entity; an original or certified original copy of the Resolution by the Board of Directors authorizing the formation or acquisition of the guaranteed entity; an organizational chart that shows the relationship between the two entities; and the partnership agreement or other agreements, articles, or bylaws that set out the formation, structure, and operation of the guaranteed entity. After the initial submission of these items to demonstrate a substantial business relationship, if there has been no change in the substantial business relationship, the chief financial officer may submit a letter attesting that there has been no change.(e) The terms of the corporate guarantee shall provide that:(1) if the owner or operator fails to perform reclamation at the quarry or restoration related to the quarry covered by the corporate guarantee in accordance with the permits and other applicable requirements or written directive by the executive director or commission whenever required to perform such reclamation or restoration, the guarantor shall do so or establish a trust fund as specified in §37.9185 of this title (relating to Trust Fund Requirements) in the name of the owner or operator in the amount of the current cost estimate;(2) the corporate guarantee will remain in force unless the guarantor sends notice of termination by certified mail to the owner or operator and the executive director and the owner or operator has obtained, and the executive director has approved, alternative financial assurance; and(3) if the owner or operator fails to provide alternate financial assurance as specified in this subchapter and obtain the written approval of such alternate assurance from the executive director within 90 days after receipt by both the owner or operator and the executive director of a notice of termination of the corporate guarantee from the guarantor, the guarantor will provide such alternate financial assurance in the name of the owner or operator.</content><note type="source"><p>Source Note: The provisions of this §37.9235 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scW/s37.9240"><num value="37.9240">§37.9240</num><heading>Corporate Guarantee Wording</heading><content>A corporate guarantee for reclamation or restoration, as specified in §37.9235 of this title (relating to Corporate Guarantee Requirements), must be worded as specified in the Corporate Guarantee in this section, except that the instructions in parenthesis are to be replaced with the relevant information and the parenthesis deleted. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §37.9240 adopted to be effective August 3, 2006, 31 TexReg 5971.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c37/scX"><num value="X">SUBCHAPTER X</num><heading>FINANCIAL ASSURANCE REQUIREMENTS FOR BRINE EVAPORATION PITS</heading><section identifier="/us/state/tx/tac/t30/p1/c37/scX/s37.9245"><num value="37.9245">§37.9245</num><heading>Applicability</heading><content>This subchapter applies to owners and operators of brine evaporation pits required to provide evidence of financial assurance under Chapter 218 of this title (relating to Brine Evaporation Pits). This subchapter does not apply to state or federal governmental entities whose debts and liabilities are the debts and liabilities of a state or the United States. This subchapter establishes requirements and mechanisms for demonstrating financial assurance for closure and third party pollution liability.</content><note type="source"><p>Source Note: The provisions of this §37.9245 adopted to be effective October 16, 2008, 33 TexReg 8528.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scX/s37.9250"><num value="37.9250">§37.9250</num><heading>Definitions</heading><content>Definitions for terms that appear throughout this subchapter may be found in Subchapter A of this chapter (relating to General Financial Assurance Requirements) and Chapter 218 of this title (relating to Brine Evaporation Pits), except the term "brine evaporation pit" shall mean the same as "facility" for purposes of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §37.9250 adopted to be effective October 16, 2008, 33 TexReg 8528.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scX/s37.9255"><num value="37.9255">§37.9255</num><heading>Submission of Documents</heading><content>An owner or operator required by this subchapter to provide financial assurance must submit an originally signed financial assurance mechanism for closure, post closure and third party pollution liability coverage.(1) For new facilities, owners or operators shall submit the originally signed financial assurance mechanism:(A) prior to permit issuance; or(B) as otherwise approved in writing by the executive director.(2) For facilities in existence upon the effective date of this section, owners or operators shall submit the originally signed financial assurance mechanism:(A) within 180 days of the effective date of this section; or(B) as otherwise approved in writing by the executive director.</content><note type="source"><p>Source Note: The provisions of this §37.9255 adopted to be effective October 16, 2008, 33 TexReg 8528.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scX/s37.9260"><num value="37.9260">§37.9260</num><heading>Financial Assurance Requirements for Closure and Post Closure of Brine Evaporation Pits</heading><content>(a) An owner or operator of a brine evaporation pit subject to this subchapter shall establish financial assurance for the closure and post closure of the facility that meets the requirements of this section, in addition to the requirements specified under Subchapters A - D of this chapter (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Closure, Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective Action) except §37.31 of this title (relating to Submission of Documents) is not applicable.(b) An owner or operator subject to this subchapter may use any of the financial assurance mechanisms as specified in Subchapter C of this chapter to demonstrate financial assurance for closure except a pay-in trust fund may not be used.</content><note type="source"><p>Source Note: The provisions of this §37.9260 adopted to be effective October 16, 2008, 33 TexReg 8528.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c37/scX/s37.9265"><num value="37.9265">§37.9265</num><heading>Third Party Pollution Liability Requirements for Brine Evaporation Pits</heading><content>(a) An owner or operator subject to this subchapter shall establish and maintain financial assurance for third party pollution liability insurance covering bodily injury and property damage to third parties caused by accidental sudden or nonsudden occurrences arising from facility operations that:(1) is issued by an insurance company authorized to do business in the state of Texas that has a rating by the A.M. Best Company of "A-" or better;(2) is in an amount not less than $3 million; and(3) is evidenced by either an originally signed certificate of insurance worded identically to the wording specified in §37.631 of this title (relating to Certificate of Insurance for Liability) or an endorsement worded identically to the wording specified in §37.641 of this title (relating to Endorsement for Liability).(b) If an endorsement as described within this section is used, the insurance policy shall be amended by the Endorsement for Liability.(c) Owners and operators must also comply with §37.402 of this title (relating to Definitions), §37.404 of this title (relating to Liability Requirements for Sudden and Nonsudden Accidental Occurrences) and §37.411 (relating to Adjustments to the Level of Liability Coverage).</content><note type="source"><p>Source Note: The provisions of this §37.9265 adopted to be effective October 16, 2008, 33 TexReg 8528.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c39"><num value="39">CHAPTER 39</num><heading>PUBLIC NOTICE</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c39/scA"><num value="A">SUBCHAPTER A</num><heading>DEFINITIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c39/scA/s39.1"><num value="39.1">§39.1</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter (relating to Public Notice) shall have the following meanings. (1) Administratively complete application--an application that includes all necessary information for the agency to begin reviewing that application and for the initial notice of the application to be issued by the executive director.(2) Contested case hearing--A proceeding, including occupational licensing hearings, in which the legal rights, duties, or privileges of a person are determined by a state agency after an opportunity for adjudicative hearing. (3) Notice and comment hearing--a meeting held to allow the public to submit formal oral comments on a permit application. A notice and comment hearing is not a contested case hearing.(4) Public comment--Statements, questions, or other information submitted on a pending permit application for the consideration of the commission when reviewing that permit application. (5) Public meeting--A meeting held under §55.154 of this title (relating to Public Meetings) that is intended for the taking of public comments. A public meeting is not a contested case hearing.(6) Response to comment--A written document prepared by the executive director that responds to timely submitted public comments. (7) Request for reconsideration--A request that the commission reconsider the decision of the executive director on a permit application. (8) Technically complete application--an application that has been reviewed by the executive director, the executive director has made a preliminary decision that the application meets all statutory and regulatory requirements, and a draft permit is available for public review.</content><note type="source"><p>Source Note: The provisions of this §39.1 adopted to be effective February 18, 2026, 51 TexReg 911.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c39/scG"><num value="G">SUBCHAPTER G</num><heading>PUBLIC NOTICE FOR APPLICATIONS FOR CONSOLIDATED PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c39/scG/s39.351"><num value="39.351">§39.351</num><heading>Public Notice for Applications for Consolidated Permits</heading><content>(a) Applicability. This section applies to applications for consolidated permits, which combine authorizations under two or more program areas.(b) Combined public notices shall be given for applications consolidated under Texas Water Code, Chapter 5, Subchapter J, and Chapter 33 of this title (relating to Consolidated Permit Processing) only when:(1) combined notice is requested by the applicant; and(2) combined notice satisfies all statutory and regulatory requirements that would apply if each application had been processed separately, including, without limitation, all requirements for notice content, publication, mailing, broadcasting, and the posting of signs.</content><note type="source"><p>Source Note: The provisions of this §39.351 adopted to be effective September 23, 1999, 24 TexReg 8190.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c39/scH"><num value="H">SUBCHAPTER H</num><heading>APPLICABILITY AND GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.401"><num value="39.401">§39.401</num><heading>Purpose</heading><content>Subchapters H-M of this chapter (relating to Applicability and General Provisions, Public Notice of Solid Waste Applications, Public Notice of Water Quality Applications and Water Quality Management Plans, Public Notice of Air Quality Applications, Public Notice of Injection Well and Other Specific Applications, and Public Notice for Radioactive Material Licenses) specify notice requirements for applications and certain other actions described in these subchapters such as notices for public meetings, contested case hearings on permit applications and enforcement cases, comment hearings, and Water Quality Management Plan (WQMP) updates.</content><note type="source"><p>Source Note: The provisions of this §39.401 adopted to be effective September 23, 1999, 24 TexReg 8190.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.402"><num value="39.402">§39.402</num><heading>Applicability to Air Quality Permits and Permit Amendments</heading><content>(a) As specified in those subchapters, Subchapters H and K of this chapter (relating to Applicability and General Provisions; and Public Notice of Air Quality Permit Applications, respectively) apply to applications for:(1) new air quality permits under Chapter 116, Subchapter B of this title (relating to New Source Review Permits);(2) a new major source or a major modification for facilities subject to the requirements of Chapter 116, Subchapter B, Division 5 or 6 of this title (relating to New Source Review Permits, Nonattainment Review Permits and Prevention of Significant Deterioration Permits);(3) air quality permit amendments under Chapter 116, Subchapter B of this title when the amendment involves:(A) a change in character of emissions or release of an air contaminant not previously authorized under the permit;(B) a facility not affected by THSC, §382.020, where the total emissions increase from all facilities to be authorized under the amended permit exceeds public notice de minimis levels by being greater than any of the following levels:(i) 50 tpy of carbon monoxide (CO);(ii) ten tpy of sulfur dioxide (SO2); (iii) 0.6 tons per year (tpy) of lead; or(iv) five tpy of nitrogen oxides (NO X), volatile organic compounds (VOC), particulate matter (PM), or any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen;(C) a facility affected by THSC, §382.020, where the total emissions increase from all facilities to be authorized under the amended permit exceeds significant levels for public notice by being greater than any of the following levels:(i) 250 tpy of CO or NOX;(ii) 25 tpy of VOC, SO2, PM, or any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen;(iii) a new major stationary source or major modification threshold as defined in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions); or(iv) a new major stationary source or major modification threshold, as defined in 40 Code of Federal Regulations (CFR), §52.21, under the new source review requirements of the Federal Clean Air Act (FCAA), Part C (Prevention of Significant Deterioration); or(D) other amendments when the executive director determines that:(i) there is a reasonable likelihood for emissions to impact a nearby sensitive receptor;(ii) there is a reasonable likelihood of high nuisance potential from the operation of the facilities;(iii) the application involves a facility in the lowest classification under Texas Water Code, §5.753 and §5.754 and the commission's rules in Chapter 60 of this title (relating to Compliance History); or(iv) there is a reasonable likelihood of significant public interest in a proposed activity;(4) new air quality flexible permits under Chapter 116, Subchapter G of this title (relating to Flexible Permits);(5) air quality permit amendments to flexible permits under Chapter 116, Subchapter G of this title when the amendment involves: (A) change in character of emissions or release of an air contaminant not previously authorized under the permit;(B) a facility not affected by THSC, §382.020, where the total emissions increase from all facilities to be authorized under the amended permit exceeds public notice de minimis levels by being greater than any of the following levels:(i) 50 tpy of carbon monoxide (CO);(ii) ten tpy of sulfur dioxide (SO2); (iii) 0.6 tons per year (tpy) of lead; or(iv) five tpy of nitrogen oxides (NO X), volatile organic compounds (VOC), particulate matter (PM), or any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen;(C) a facility affected by THSC, §382.020, where the total emissions increase from all facilities to be authorized under the amended permit exceeds significant levels for public notice by being greater than any of the following levels:(i) 250 tpy of CO or NOX;(ii) 25 tpy of VOC, SO2, PM, or any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen;(iii) a new major stationary source or major modification threshold as defined in §116.12 of this title; or(iv) a new major stationary source or major modification threshold, as defined in 40 Code of Federal Regulations (CFR), §52.21, under the new source review requirements of the Federal Clean Air Act (FCAA), Part C (Prevention of Significant Deterioration); or(D) other amendments when the executive director determines that:(i) there is a reasonable likelihood for emissions to impact a nearby sensitive receptor;(ii) there is a reasonable likelihood of high nuisance potential from the operation of the facilities;(iii) the application involves a facility in the lowest classification under Texas Water Code, §5.753 and §5.754 and the commission's rules in Chapter 60 of this title; or(iv) there is a reasonable likelihood of significant public interest in a proposed activity;(6) renewal of air quality permits under Chapter 116, Subchapter D of this title (relating to Permit Renewals);(7) applications subject to the requirements of Chapter 116, Subchapter E of this title (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)), whether for construction or reconstruction;(8) applications for the establishment or renewal of, or an increase in, a plant-wide applicability limit permit under Chapter 116, Subchapter C of this title (relating to Plant-Wide Applicability Limits).(9) applications for multiple plant permits (MPPs) under Chapter 116, Subchapter J of this title (relating to Multiple Plant Permits);(10) concrete batch plants without enhanced controls authorized by an air quality standard permit adopted by the commission under Chapter 116, Subchapter F of this title (relating to Standard Permits), unless the plant is to be temporarily located in or contiguous to the right-of-way of a public works project; and(11) change of location or relocation of a portable facility, consistent with the requirements of §116.178 of this title (relating to Relocations and Changes of Location of Portable Facilities).(b) Regardless of the applicability of subsection (a) of this section, Subchapters H and K of this chapter do not apply to the following applications where notice or opportunity for contested case hearings is not otherwise required by law:(1) applications under Chapter 122 of this title (relating to Federal Operating Permits Program);(2) applications under Chapter 116, Subchapter F of this title, except applications for concrete batch plants authorized by standard permit as referenced in subsection (a)(10) of this section; and(3) registrations under Chapter 106 of this title (relating to Permits by Rule).</content><note type="source"><p>Source Note: The provisions of this §39.402 adopted to be effective June 24, 2010, 35 TexReg 5198; amended to be effective May 14, 2020, 45 TexReg 3060; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.403"><num value="39.403">§39.403</num><heading>Applicability</heading><content>(a) Permit applications that are subject to Subchapters H - J, L, and M of this chapter (relating to Applicability and General Provisions; Public Notice of Solid Waste Applications; Public Notice of Water Quality Applications and Water Quality Management Plans; Public Notice of Injection Well and Other Specific Applications; and Public Notice for Radioactive Material Licenses). All consolidated permit applications are subject to Subchapter G of this chapter (relating to Public Notice for Applications for Consolidated Permits).(1) Explanation of applicability. Subsection (b) of this section lists all the types of applications to which Subchapters H - J, L, and M of this chapter apply. Subsection (c) of this section lists certain types of applications that would be included in the applications listed in subsection (b) of this section, but that are specifically excluded. Subsection (d) of this section specifies that only certain sections apply to applications for radioactive materials licenses. Subsection (e) of this section lists the types of applications for which public notice is not required.(2) Explanation of organization. Subchapter H of this chapter contains general provisions that may apply to all applications under Subchapters H - M of this chapter. Additionally, in Subchapters I - M of this chapter, there is a specific subchapter for each type of application. Those subchapters contain additional requirements for each type of application, as well as indicating which parts of Subchapter H of this chapter must be followed.(3) Types of applications. Unless otherwise provided in Subchapters G - M of this chapter, public notice requirements apply to applications for new permits and applications to amend, modify, or renew permits.(b) As specified in those subchapters, Subchapters H - J, L, and M of this chapter apply to notices for:(1) applications for municipal solid waste, industrial solid waste, or hazardous waste permits under Texas Health and Safety Code (THSC), Chapter 361;(2) applications for wastewater discharge permits under Texas Water Code (TWC), Chapter 26, including:(A) applications for the disposal of sewage sludge or water treatment sludge under Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation); and(B) applications for individual permits under Chapter 321, Subchapter B of this title (relating to Concentrated Animal Feeding Operations);(3) applications for underground injection well permits under TWC, Chapter 27, or under THSC, Chapter 361;(4) applications for production area authorizations or exempted aquifers under Chapter 331 of this title (relating to Underground Injection Control);(5) contested case hearings for permit applications or contested enforcement case hearings under Chapter 80 of this title (relating to Contested Case Hearings);(6) applications for radioactive material licenses under Chapter 336 of this title (relating to Radioactive Substance Rules), except as provided in subsection (d) of this section;(7) applications for consolidated permit processing and consolidated permits processed under TWC, Chapter 5, Subchapter J, and Chapter 33 of this title (relating to Consolidated Permit Processing); and(8) Water Quality Management Plan updates processed under TWC, Chapter 26, Subchapter B.(c) Regardless of the applicability of subsection (b) of this section, Subchapters H - M of this chapter do not apply to the following actions and other applications where notice or opportunity for contested case hearings is otherwise not required by law:(1) applications for authorizations under Chapter 321 of this title (relating to Control of Certain Activities by Rule), except for applications for individual permits under Chapter 321, Subchapter B of this title;(2) applications for registrations and notifications under Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation);(3) applications under Chapter 332 of this title (relating to Composting);(4) applications for minor modifications of Texas Pollutant Discharge Elimination System permits under §305.62(c)(3) of this title (relating to Amendments), except as provided by §39.551 of this title (relating to Application for Wastewater Discharge Permit, Including Application for the Disposal of Sewage Sludge or Water Treatment Sludge);(5) applications for registration and notification of sludge disposal under §312.13 of this title (relating to Actions and Notice); or(6) applications listed in Subchapter P of this chapter (relating to Other Notice Requirements).(d) Applications for radioactive materials licenses under Chapter 336 of this title are not subject to §39.405(c) and (e) of this title (relating to General Notice Provisions); §§39.418 - 39.420 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit; Notice of Application and Preliminary Decision; and Transmittal of the Executive Director's Response to Comments and Decision); and certain portions of §39.413 of this title (relating to Mailed Notice) that are not listed in §39.705 of this title (relating to Mailed Notice for Radioactive Material Licenses).(e) Public notice is not required for the following:(1) applications for the correction or endorsement of permits under §50.145 of this title (relating to Corrections of Permits);(2) permittees' voluntary requests for suspension or revocation of permits under Chapter 305, Subchapter D of this title (relating to Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits);(3) applications for special collection route permits under §330.7(c)(2) of this title (relating to Permit Required); or(4) applications for minor modifications of underground injection control permits under §305.72 of this title (relating to Underground Injection Control (UIC) Permit Modifications at the Request of the Permittee).</content><note type="source"><p>Source Note: The provisions of this §39.403 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective December 30, 2001, 26 TexReg 10989; amended to be effective August 15, 2002, 27 Texas Reg 7132; amended to be effective January 9, 2003, 28 TexReg 81; amended to be effective March 29, 2006, 31 TexReg 2471; amended to be effective March 12, 2009, 34 TexReg 1619; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective May 14, 2020, 45 TexReg 3060; amended to be effective January 7, 2021, 46 TexReg 186; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.405"><num value="39.405">§39.405</num><heading>General Notice Provisions</heading><content>(a) Failure to publish notice. If the Office of the Chief Clerk (chief clerk) prepares a newspaper notice that is required by Subchapters G - J, L, and M of this chapter (relating to Public Notice for Applications for Consolidated Permits; Applicability and General Provisions; Public Notice of Solid Waste Applications; Public Notice of Water Quality Applications and Water Quality Management Plans; Public Notice of Injection Well and Other Specific Applications; and Public Notice for Radioactive Material Licenses) and the applicant does not cause the notice to be published within 45 days of mailing of the notice from the chief clerk, or for Notice of Receipt of Application and Intent to Obtain Permit, within 30 days after the executive director declares the application administratively complete, or fails to submit the copies of notices or affidavit required in subsection (e) of this section, the executive director may cause one of the following actions to occur.(1) The chief clerk may cause the notice to be published and the applicant shall reimburse the agency for the cost of publication. (2) The executive director may suspend further processing or return the application. If the application is resubmitted within six months of the date of the return of the application, it will be exempt from any application fee requirements.(b) Electronic mailing lists. The chief clerk may require the applicant to provide necessary mailing lists in electronic form.(c) Mail or hand delivery. When Subchapters G - L of this chapter require notice by mail, notice by hand delivery may be substituted. Mailing is complete upon deposit of the document, enclosed in a prepaid, properly addressed wrapper, in a post office or official depository of the United States Postal Service. If hand delivery is by courier-receipted delivery, the delivery is complete upon the courier taking possession.(d) Combined notice. Notice may be combined to satisfy more than one applicable section of this chapter.(e) Notice and affidavit. When Subchapters G - J and L of this chapter require an applicant to publish notice, the applicant must file a copy of the published notice and a publisher's affidavit with the chief clerk certifying facts that constitute compliance with the requirement. The deadline to file a copy of the published notice which shows the date of publication and the name of the newspaper is ten business days after the last date of publication. The deadline to file the affidavit is 30 calendar days after the last date of publication for each notice. Filing an affidavit certifying facts that constitute compliance with notice requirements creates a rebuttable presumption of compliance with the requirement to publish notice. When the chief clerk publishes notice under subsection (a) of this section, the chief clerk shall file a copy of the published notice and a publisher's affidavit.(f) Published notice. When this chapter requires notice to be published under this subsection:(1) the applicant shall publish notice in the newspaper of largest circulation in the county in which the facility is located or proposed to be located or, if the facility is located or proposed to be located in a municipality, the applicant shall publish notice in any newspaper of general circulation in the municipality;(2) for applications for solid waste permits and injection well permits, the applicant shall publish notice in the newspaper of largest general circulation that is published in the county in which the facility is located or proposed to be located. If a newspaper is not published in the county, the notice must be published in any newspaper of general circulation in the county in which the facility is located or proposed to be located. The requirements of this subsection may be satisfied by one publication if the newspaper is both published in the county and is the newspaper of largest general circulation in the county; and(3) air quality permit applications required by Subchapters H and K of this chapter (relating to Applicability and General Provisions and Public Notice of Air Quality Permit Applications, respectively) to publish notice shall comply with the requirements of §39.603 of this title (relating to Newspaper Notice).(g) Copy of application. The applicant shall make a copy of the application available for review and copying at a public place in the county in which the facility is located or proposed to be located. If the application is submitted with confidential information marked as confidential by the applicant, the applicant shall indicate in the public file that there is additional information in a confidential file. The copy of the application must comply with the following. (1) A copy of the administratively complete application must be available for review and copying beginning on the first day of newspaper publication of Notice of Receipt of Application and Intent to Obtain Permit and remain available: (A) until replaced by the technically complete application and executive director's draft permit; or(B) for applications for which there is no requirement for a Notice of Application and Preliminary Determination, for the publication's designated comment period.(2) A copy of the complete application (including any subsequent revisions to the application) and executive director's preliminary decision must be available for review and copying beginning on the first day of the first newspaper publication of the Notice of Application and Preliminary Decision or a Combined Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision, as applicable, required by this section and remain continuously available until the commission has taken action on the application or the commission refers the application to State Office of Administrative Hearings; and(3) where applicable, for air quality permit applications, the applicant shall also make available the executive director's draft permit, preliminary determination summary, and air quality analysis for review and copying beginning on the first day of newspaper publication required by §39.419 of this title (relating to Notice of Application and Preliminary Decision) and remain continuously available until the commission has taken action on the application or the commission refers the application to State Office of Administrative Hearings.(h) Failure to publish notice of air quality permit applications. If the chief clerk prepares a newspaper notice that is required by Subchapters H and K of this chapter for air quality permit applications and the applicant does not cause the notice to be published within 45 days of mailing of the notice from the chief clerk, or, for Notice of Receipt of Application and Intent to Obtain Permit, within 30 days after the executive director declares the application administratively complete, or fails to submit the copies of notices or affidavit required in subsection (i) of this section, the executive director may cause one of the following actions to occur.(1) The chief clerk may cause the notice to be published and the applicant shall reimburse the agency for the cost of publication. (2) The executive director may suspend further processing or return the application. If the application is resubmitted within six months of the date of the return of the application, it will be exempt from any application fee requirements.(i) Notice and affidavit for air quality permit applications. When Subchapters H and K of this chapter require an applicant for an air quality permit action to publish notice, the applicant must file a copy of the published notice and a publisher's affidavit with the chief clerk certifying facts that constitute compliance with the requirement. The deadline to file a copy of the published notice which shows the date of publication and the name of the newspaper is ten business days after the last date of publication. The deadline to file the affidavit is 30 calendar days after the last date of publication for each notice. Filing an affidavit certifying facts that constitute compliance with notice requirements creates a rebuttable presumption of compliance with the requirement to publish notice. When the chief clerk publishes notice under subsection (h) of this section, the chief clerk shall file a copy of the published notice and a publisher's affidavit.(j) For applications filed on or after September 1, 2015, and subject to providing notice as prescribed by Texas Water Code, §5.115, the commission shall make available on the commission's website notice of administratively complete applications for a permit or license authorized under the Texas Water Code and the Texas Health and Safety Code.(k) Summary of application. For permit applications that are declared by the executive director to be administratively complete on or after May 1, 2022, the applicant will provide a plain-language summary of the application, no more than two pages long, that will describe the following:(1) the function of the proposed plant or facility;(2) the expected output of the proposed plant or facility; (3) the expected pollutants that may be emitted or discharged by the proposed plant or facility; and(4) how the applicant will control those pollutants, so that the proposed plant will not have an adverse impact on human health or the environment.(l) Electronic copy of application. For permit applications that are declared by the executive director to be administratively complete on or after June 1, 2024, the executive director shall:(1) make an electronic copy of the administratively complete application available on the commission's website in accordance with Texas Water Code, §5.1734 within five business days of transmitting the notice of the administratively complete application to the applicant; materials may be exempted if posting the materials on the website would be unduly burdensome or the materials are too large to be posted on the website;(2) make an electronic copy of the technically complete application and the executive director's draft permit available on the commission's website within five business days of transmitting the notice of the technically complete application and the executive director's draft permit to the applicant; materials may be exempted if posting the materials on the website would be unduly burdensome or the materials are too large to be posted on the website; and(3) retain these postings until the commission has taken action on the application or the commission refers the application to State Office of Administrative Hearings.</content><note type="source"><p>Source Note: The provisions of this §39.405 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective August 15, 2002, 27 Texas Reg 7132; amended to be effective November 30, 2005, 30 TexReg 7877; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective December 31, 2015, 40 TexReg 9644; amended to be effective May 14, 2020, 45 TexReg 3067; amended to be effective September 16, 2021, 46 TexReg 5784; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.407"><num value="39.407">§39.407</num><heading>Mailing Lists</heading><content>The chief clerk shall maintain mailing lists of persons requesting notice of an application. Persons may request in writing to be on a mailing list and must provide a complete and valid United States Postal Service mailing address with their request. The chief clerk may from time to time request confirmation that persons on a list wish to remain on the list and may delete from the list the name of any person who fails to respond to such request.</content><note type="source"><p>Source Note: The provisions of this §39.407 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.409"><num value="39.409">§39.409</num><heading>Deadline for Public Comment, and for Requests for Reconsideration, Contested Case Hearing, or Notice and Comment Hearing</heading><content>(a) Notice given under this chapter will specify any applicable deadline to file public comment specified under §55.152 of this title (relating to Public Comment Period) and, if applicable, any deadlines to file requests for reconsideration, contested case hearing, or notice and comment hearing. After the deadline, final action on an application may be taken under Chapter 50 of this title (relating to Action on Applications and Other Authorizations).(b) Comments are considered timely if filed between the date an application is received and the end of the comment period, including comments received between publications of the Notice of Receipt of Application and Intent to Obtain Permit and the Notice of Application and Preliminary Decision.(c) The executive director may extend any comment period for good cause.</content><note type="source"><p>Source Note: The provisions of this §39.409 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.411"><num value="39.411">§39.411</num><heading>Text of Public Notice</heading><content>(a) Applicants shall use notice text provided and approved by the agency. The executive director may approve changes to notice text before notice is given. (b) When Notice of Receipt of Application and Intent to Obtain Permit by publication or by mail is required by Subchapters H and K of this chapter (relating to Applicability and General Provisions and Public Notice of Air Quality Permit Applications) for air quality permit applications, those applications are subject to subsections (e) - (h) of this section. When notice of receipt of application and intent to obtain permit by publication or by mail is required by Subchapters H - J and L of this chapter (relating to Applicability and General Provisions, Public Notice of Solid Waste Applications, Public Notice of Water Quality Applications and Water Quality Management Plans, and Public Notice of Injection Well and Other Specific Applications), Subchapter G of this chapter (relating to Public Notice for Applications for Consolidated Permits), or Subchapter M of this chapter (relating to Public Notice for Radioactive Material Licenses), the text of the notice must include the following information:(1) the name and address of the agency and the telephone number of an agency contact from whom interested persons may obtain further information;(2) the name, address, and telephone number of the applicant and a description of the manner in which a person may contact the applicant for further information;(3) a brief description of the location, type of permit applied for, and nature of the proposed activity;(4) a brief description of public comment procedures, including:(A) a statement that the executive director will respond to comments raising issues that are relevant and material or otherwise significant; and(B) a statement in the notice for any permit application for which there is an opportunity for a contested case hearing, that only disputed factual issues that are relevant and material to the commission's decision that are raised during the comment period can be considered if a contested case hearing is granted;(5) A description printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice of procedures by which the public may participate in the final permit decision including, when applicable:(A) how to request a public meeting, including a statement that a public meeting will be held by the executive director if requested by a member of the legislature who represents the general area where the facility is to be located or there is substantial public interest in the proposed activity;(B) how to request a contested case hearing, (C) how to request reconsideration of the executive director's decision, (D) how to request a notice and comment hearing, or(E) a statement that later notice will describe procedures for public participation, and(6) the application or permit number;(7) if applicable, a statement that the application or requested action is subject to the Coastal Management Program and must be consistent with the Coastal Management Program goals and policies; (8) the location, at a public place in the county in which the facility is located or proposed to be located, at which a copy of the application is available for review and copying and for permit applications that are declared to be administratively complete by the executive director on or after May 1, 2026, a statement that a copy of the administratively complete application may be viewed online at the commission's website and the location of the website where the copy can be found;(9) a description of the procedure by which a person may be placed on a mailing list in order to receive additional information about the application;(10) for notices of municipal solid waste applications, a statement that a person who may be affected by the facility or proposed facility is entitled to request a contested case hearing from the commission. This statement must be printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice; and(11) any additional information required by the executive director or needed to satisfy public notice requirements of any federally authorized program; or(12) for radioactive material licenses under Chapter 336 of this title (relating to Radioactive Substance Rules), if applicable, a statement that a written environmental analysis on the application has been prepared by the executive director, is available to the public for review, and that written comments may be submitted; and(13) for Class 3 modifications of hazardous industrial solid waste permits, the statement "The permittee's compliance history during the life of the permit being modified is available from the agency contact person."(c) Unless mailed notice is otherwise provided for under this section, the chief clerk shall mail Notice of Application and Preliminary Decision to those listed in §39.413 of this title (relating to Mailed Notice). When notice of application and preliminary decision by publication or by mail is required by Subchapters G - J and L of this chapter, the text of the notice must include the following information:(1) the information required by subsection (b)(1) - (11) of this section;(2) a brief description of public comment procedures, printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice, including:(A) a description of the manner in which comments regarding the executive director's preliminary decision may be submitted; and(B) a statement in the notice for any permit application for which there is an opportunity for contested case hearing, that only relevant and material issues raised during the comment period can be considered if a contested case hearing is granted(3) if the application is subject to final approval by the executive director under Chapter 50 of this title (relating to Action on Applications and Other Authorizations), a statement that the executive director may issue final approval of the application unless a timely contested case hearing request or a timely request for reconsideration (if applicable) is filed with the chief clerk after transmittal of the executive director's decision and response to public comment;(4) a summary of the executive director's preliminary decision and whether the executive director has prepared a draft permit;(5) the location, at a public place in the county in which the facility is located or proposed to be located, at which a copy of the complete application and the executive director's preliminary decision are available for review and copying and, for applications administratively complete on or after May 1, 2026, a statement that the technically complete application and draft permit may be viewed online at the commission's website and the location of the website where these can be found;(6) the deadline to file comments or request a public meeting. The notice should include a statement that a public meeting will be held by the executive director if requested by a member of the legislature who represents the general area where the facility is to be located or there is substantial public interest in the proposed activity; and(7) for radioactive material licenses under Chapter 336 of this title, if applicable, a statement that a written environmental analysis on the application has been prepared by the executive director, is available to the public for review, and that written comments may be submitted.(d) When notice of a public meeting or notice of a hearing by publication or by mail is required by Subchapters G - J and L of this chapter, the text of the notice must include the following information:(1) the information required by subsection (b)(1) - (3), (6) - (8), and (11) of this section;(2) the date, time, and place of the meeting or hearing, and a brief description of the nature and purpose of the meeting or hearing, including the applicable rules and procedures; and(3) for notices of public meetings only, the following information must be included:(A) a brief description of public comment procedures, (B) a description of the manner in which comments regarding the executive director's preliminary decision may be submitted; (C) a statement in the notice for any permit application for which there is an opportunity for contested case hearing, that only relevant and material issues raised during the comment period can be considered if a contested case hearing is granted.(e) When Notice of Receipt of Application and Intent to Obtain Permit by publication or by mail is required by Subchapters H and K of this chapter for air quality permit applications, the text of the notice must include the information in this subsection:(1) the name and address of the agency and the telephone number of an agency contact from whom interested persons may obtain further information;(2) the name, address, and telephone number of the applicant and a description of the manner in which a person may contact the applicant for further information;(3) a brief description of the location and nature of the proposed activity;(4) a brief description of public comment procedures, including:(A) a statement that the executive director will respond to:(i) all comments regarding applications for Prevention of Significant Deterioration and Nonattainment permits under Chapter 116, Subchapter B of this title (relating to New Source Review Permits) and Plant-wide Applicability Limit permits under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification);(ii) all comments regarding applications subject to the requirements of Chapter 116, Subchapter E of this title (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)), whether for construction or reconstruction; and(iii) for all other air quality permit applications, comments raising issues that are relevant and material or otherwise significant; and(B) a statement in the notice for any air quality permit application for which there is an opportunity for a contested case hearing, that only disputed factual issues that are relevant and material to the commission's decision that are raised during the comment period can be considered if a contested case hearing is granted;(5) printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice, a brief description of procedures by which the public may participate in the final permit decision and, if applicable : (A) how to request a public meeting, (B) how to request a contested case hearing, (C) how to request reconsideration of the executive director's decision, (D) how to request a notice and comment hearing, or (E) a statement that later notice will describe procedures for public participation; and(F) a statement that a public meeting will be held by the executive director if requested by a member of the legislature who represents the general area where the facility is to be located, if there is substantial public interest in the proposed activity, or for the following types of applications, when requested by any interested person : (i) air quality permit applications subject to the requirements for Prevention of Significant Deterioration and Nonattainment in Chapter 116, Subchapter B of this title;(ii) air quality permit applications subject to the requirements of Chapter 116, Subchapter E of this title (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)), whether for construction or reconstruction; (iii) air quality permit applications for the establishment or renewal of, or an increase in, a plant-wide applicability limit subject to Chapter 116 of this title; and(6) the application or permit number;(7) if applicable, a statement that the application or requested action is subject to the Coastal Management Program and must be consistent with the Coastal Management Program goals and policies; (8) the location, at a public place in the county in which the facility is located or proposed to be located, at which a copy of the application is available for review and copying;(9) a description of the procedure by which a person may be placed on a mailing list in order to receive additional information about the application;(10) at a minimum, a listing of criteria pollutants for which authorization is sought in the application which are regulated under national ambient air quality standards or under state standards in Chapters 111 - 113, 115, and 117 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter, Control of Air Pollution from Sulfur Compounds, Standards of Performance for Hazardous Air Pollutants and for Designated Facilities and Pollutants, Control of Air Pollution from Volatile Organic Compounds, and Control of Air Pollution from Nitrogen Compounds);(11) If notice is for any air quality permit application except those listed in paragraphs (12) and (15) of this subsection, the following information must be printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice:(A) a statement that a person who may be affected by emissions of air contaminants from the facility or proposed facility is entitled to request a contested case hearing from the commission within the following specified time periods;(i) for air quality permit applications subject to the requirements for Prevention of Significant Deterioration and Nonattainment permits in Chapter 116, Subchapter B of this title a statement that a request for a contested case hearing must be received by the commission by the end of the comment period or within 30 days after the mailing of the executive director's response to comments;(ii) for air quality permit applications subject to the requirements of Chapter 116, Subchapter E of this title, whether for construction or reconstruction, a statement that a request for a contested case hearing must be received by the commission by the end of the comment period or within 30 days after the mailing of the executive director's response to comments;(iii) for renewals of air quality permits that would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted and the application does not involve a facility for which the applicant's compliance history is in the lowest classification under Texas Water Code, §5.753 and §5.754 and the commission's rules in Chapter 60 of this title (relating to Compliance History), a statement that a request for a contested case hearing must be received by the commission before the close of the 15-day comment period provided in response to the last publication of Notice of Receipt of Application and Intent to Obtain Permit;(iv) for initial registrations for concrete batch plants under the Air Quality Standard Permit for Concrete Batch Plants adopted by the commission under Chapter 116, Subchapter F of this title (relating to Standard Permits) received before March 1, 2026, the following statements:(I) a request for a contested case hearing must be received by the commission before the close of the comment period provided in response to the last publication of the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision in §39.603(c) of this title (relating to Newspaper Notice);(II) if no hearing requests are received by the end of the 30-day comment period there is no further opportunity to request a contested case hearing; and(III) if any hearing requests are received before the close of the 30-day comment period, the opportunity to file a request for a contested case hearing is extended to 30 days after the mailing of the executive director's response to comments;(v) for initial registrations for concrete batch plants under the Air Quality Standard Permit for Concrete Batch Plants adopted by the commission under Chapter 116, Subchapter F of this title (relating to Standard Permits) received on or after March 1, 2026, the following statements:(I) a request for a contested case hearing must be received by the commission before the close of the comment period provided in response to the last publication of the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision in §39.603(c) of this title (relating to Newspaper Notice);(II) if no hearing requests are received by the end of the 30-day comment period there is no further opportunity to request a contested case hearing unless a public meeting is held on the application; (III) if a public meeting is held on the application, the end of the comment period and opportunity to request a contested case hearing will be extended for at least 36 hours following the end of the public meeting; and(IV) if any hearing requests are received before the close of the 30-day comment period or the extended comment period following a public meeting, the opportunity to file a request for a contested case hearing is extended to 30 days after the mailing of the executive director's response to comments;(vi) for new air quality permit applications and for permit amendment applications issued under Chapter 116, Subchapters B and G of this title (relating to New Source Review Permits and Flexible Permits), for which the executive director has declared the application administratively and technically complete and prepared a draft permit within 15 days of receipt of the application, the following information:(I) the date the application was received and the date the draft permit was completed; and(II) for applications submitted before March 1, 2026, a request for a contested case hearing must be received by the commission before the close of the comment period provided in response to the last publication of the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision in §39.603(d) of this title. If no hearing requests are received by the end of the 30-day comment period, there is no further opportunity to request a contested case hearing. If any hearing requests are received before the close of the 30-day comment period, the opportunity to file a request for a contested case hearing is extended to 30 days after the mailing of the executive director's response to comments; or(III) for applications declared administratively complete by the executive director on or after March 1, 2026, a request for a contested case hearing must be received by the commission before the close of the comment period provided in response to the last publication of the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision in §39.603(d) of this title. If no hearing requests are received by the end of the 30-day comment period, there is no further opportunity to request a contested case hearing, unless a public meeting is held on the application. If a public meeting is held, then the opportunity to request a contested case hearing is extended for at least 36 hours following the close of the public meeting. If any hearing requests are received before the close of the 30-day comment period or the close of a comment period extended following a public meeting, the opportunity to file a request for a contested case hearing is extended to 30 days after the mailing of the executive director's response to comments;(vii) for all air quality permit applications other than those in clauses (i) - (vi) of this subparagraph, a statement that a request for a contested case hearing must be received by the commission before the close of the 30-day comment period provided in response to the last publication of Notice of Receipt of Application and Intent to Obtain Permit. If no hearing requests are received by the end of the 30-day comment period following the last publication of Notice of Receipt of Application and Intent to Obtain Permit, there is no further opportunity to request a contested case hearing. If any hearing requests are received before the close of the 30-day comment period following the last publication of Notice of Receipt of Application and Intent to Obtain Permit, the opportunity to file a request for a contested case hearing is extended to 30 days after the mailing of the executive director's response to comments;(B) a statement that a request for a contested case hearing must be received by the commission;(C) a statement that a contested case hearing request must include the requester's location relative to the proposed facility or activity;(D) a statement that a contested case hearing request should include a description of how the requester will be adversely affected by the proposed facility or activity in a manner not common to the general public, including a description of the requester's uses of property which may be impacted by the proposed facility or activity;(E) a statement that only relevant and material issues raised during the comment period can be considered if a contested case hearing request is granted; and(F) if notice is for air quality permit applications described in subparagraph (A)(vi) of this paragraph, a statement that when no hearing requests are timely received the applicant shall publish a Notice of Application and Preliminary Decision that provides an opportunity for public comment and to request a public meeting.(12) if notice is for air quality applications for a permit under Chapter 116, Subchapter L of this title (relating to Permits for Specific Designated Facilities), filed on or before January 1, 2018, a Multiple Plant Permit under Chapter 116, Subchapter J of this title (relating to Multiple Plant Permits), or for a Plant-wide Applicability Limit under Chapter 116 of this title, a statement that any person is entitled to request a public meeting or a notice and comment hearing, as applicable, from the commission;(13) notification that only those persons actually residing within 440 yards of a concrete batch plant authorized by the Air Quality Standard Permit for Concrete Batch Plants adopted by the commission under Chapter 116, Subchapter F of this title may request a contested case hearing as a person who may be affected;(14) if notice is for an application for an air quality permit under Chapter 116, Subchapter B, Division 6 of this title (relating to Prevention of Significant Deterioration Review) that would authorize only emissions of greenhouse gases as defined in §101.1 of this title (relating to Definitions), a statement that any interested person is entitled to request a public meeting or a notice and comment hearing, as applicable, from the commission; and(15) any additional information required by the executive director or needed to satisfy federal public notice requirements.(f) The chief clerk shall mail Notice of Application and Preliminary Decision, or the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision, as provided for in §39.603(c) or (d) of this title, to those listed in §39.602 of this title (relating to Mailed Notice). When notice of application and preliminary decision by publication or by mail is required by Subchapters H and K of this chapter for air quality permit applications, the text of the notice must include the information in this subsection:(1) the information required by subsection (e) of this section;(2) a summary of the executive director's preliminary decision and whether the executive director has prepared a draft permit;(3) the location, at a public place in the county with internet access in which the facility is located or proposed to be located, at which a copy of the complete application and the executive director's draft permit and preliminary decision are available for review and copying and, for applications administratively complete on or after May 1, 2026, a statement that the technically complete application and draft permit may be viewed online at the commission's website and the location of the website where these can be found;(4) a brief description of public comment procedures, (A) a description of the manner in which comments regarding the executive director's draft permit and, as applicable, preliminary decision, preliminary determination summary, and air quality analysis may be submitted; or(B) a statement in the notice for any air quality permit application for which there is an opportunity for contested case hearing that only relevant and material issues raised during the comment period can be considered if a contested case hearing is granted; and(C) the public comment procedures must be printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice;(5) the deadline to file comments or request a public meeting, including: (A) a statement that a public meeting will be held by the executive director if requested by a member of the legislature who represents the general area where the facility is to be located or there is substantial public interest in the proposed activity; and (B) a statement that the comment period will be for at least 30 days following publication of the Notice of Application and Preliminary Decision;(6) if the application is subject to final approval by the executive director under Chapter 50 of this title, a statement that the executive director may issue final approval of the application unless a timely contested case hearing request or a timely request for reconsideration (if applicable) is filed with the chief clerk after transmittal of the executive director's decision and response to public comment;(7) If the executive director prepares a Response to Comments as required by §55.156 of this title (relating to Public Comment Processing), the chief clerk will make the executive director's response to public comments available on the commission's website;(8) in addition to the requirements in paragraphs (1) - (7) of this subsection, for air quality permit applications for permits under Chapter 116, Subchapter B, Divisions 5 and 6 of this title (relating to Nonattainment Review Permits and Prevention of Significant Deterioration Review):(A) as applicable, the degree of increment consumption that is expected from the source or modification;(B) a statement that the state's air quality analysis is available for comment;(C) the deadline to request a public meeting;(D) a statement that the executive director will hold a public meeting at the request of any interested person; and(E) a statement that the executive director's draft permit and preliminary decision, preliminary determination summary, and air quality analysis are available electronically on the commission's website at the time of publication of the Notice of Application and Preliminary Decision; and(9) in addition to the requirements in paragraphs (1) - (7) of this subsection, for air quality permit applications for permits under Chapter 116, Subchapter E of this title:(A) the deadline to request a public meeting;(B) a statement that the executive director will hold a public meeting at the request of any interested person; and(C) a statement that the executive director's draft permit and preliminary decision are available electronically on the commission's website at the time of publication of the Notice of Application and Preliminary Decision.(g) When notice of a public meeting by publication or by mail is required by Subchapters H and K of this chapter for air quality permit applications, the text of the notice must include the information in this subsection:(1) the information required by subsection (e)(1) - (3), (4)(A), (6), (8), (9), and (15) of this section;(2) the date, time, and place of the public meeting, and a brief description of the nature and purpose of the meeting, including the applicable rules and procedures; and(3) a brief description of public comment procedures, including (A) a description of the manner in which comments regarding the executive director's draft permit and preliminary decision and, as applicable, preliminary determination summary and air quality analysis may be submitted and (B) a statement in the notice for any air quality permit application for which there is an opportunity for contested case hearing that only relevant and material issues raised during the comment period can be considered if a contested case hearing is granted.(h) When notice of a contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings) by publication or by mail is required by Subchapters H and K of this chapter for air quality permit applications, the text of the notice must include the following information:(1) the information required by subsection (e)(1) - (3), (6), (9), and (15) of this section; and(2) the date, time, and place of the hearing, and a brief description of the nature and purpose of the hearing, including the applicable rules and procedures.</content><note type="source"><p>Source Note: The provisions of this §39.411 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective June 12, 2002, 27 TexReg 4948; amended to be effective March 29, 2006, 31 TexReg 2471; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective April 17, 2014, 39 TexReg 2854; amended to be effective December 29, 2016, 41 TexReg 10334; amended to be effective May 31, 2018, 43 TexReg 3379; amended to be effective May 14, 2020, 45 Texeg 3067; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.412"><num value="39.412">§39.412</num><heading>Combined Notice for Certain Greenhouse Gases Permit Applications</heading><content>(a) This section applies to a permit application transferred from the United States Environmental Protection Agency (EPA) or filed with the commission for initial issuance of a Prevention of Significant Deterioration (PSD) permit to authorize only emissions of Greenhouses Gases, as defined in §101.1 of this title (relating to Definitions) which, prior to receipt of the application with the commission, was filed with EPA and for which notice of draft permit was published as required by EPA.(b) In lieu of compliance with all other applicable requirements of this chapter regarding PSD permit applications, an applicant may fulfill the requirements of this chapter by:(1) Complying with the requirements of §39.405(f)(3), (h), (i), and (k) of this title (relating to General Notice Provisions) and §39.426(a), (b)(1), (3), and (5) - (8) of this title (relating to Alternative Notice Requirements);(2) Publishing Notice of Receipt of Application and Intent to Obtain Permit combined with Notice of Application and Preliminary Decision (Combined Notice) as follows:(A) The published Combined Notice must comply with §39.411(e)(1) - (3), (4)(A)(i), (5)(A), (6) - (9), and (15) of this title (relating to Text of Public Notice);(B) The published Combined Notice must include the following information:(i) a list of the individual Greenhouse Gases proposed to be emitted;(ii) a summary of the executive director's preliminary decision and whether the executive director has prepared a draft permit, and a statement that the executive director's draft permit and preliminary decision, preliminary determination summary, and air quality analysis, if applicable, are available electronically on the commission's website;(iii) the location, at a public place with internet access in the county in which the facility is located or proposed to be located, at which a copy of the complete application and the executive director's draft permit and preliminary decision are available for review and copying;(iv) a brief description of public comment procedures, including a description of the manner in which comments regarding the executive director's draft permit and preliminary decision, preliminary determination summary, and air quality analysis, if applicable, may be submitted. The public comment procedures must be printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the Combined Notice;(v) a statement that a public meeting will be held by the executive director if requested by a member of the legislature who represents the general area where the facility is to be located, there is substantial public interest in the proposed activity or at the request of any interested person;(vi) a statement that the comment period will be for at least 30 days following the last publication of the Combined Notice together with the deadline to file comments or request a public meeting;(vii) a statement that any comments submitted to EPA regarding the application will not be included in the executive director's response to comments unless the comments are timely submitted to the commission; and(viii) a statement if the executive director prepares a Response to Comments as required by §55.156 of this title (relating to Public Comment Processing), the Office of the Chief Clerk (chief clerk) will make the executive director's response to public comments available on the commission's website; and(C) The Combined Notice must meet the requirements of §39.603(c) and (d) of this title (relating to Newspaper Notice) and is required to be published within 33 days after the chief clerk has mailed the preliminary decision concurrently with the notice to the applicant;(3) Making a copy of the application and certain other documents, as applicable, available for review and copying according to the following requirements:(A) A copy of the application must be available at a public place with internet access in the county in which the facility is located or proposed to be located;(B) The copy of the application must be updated as changes are made, if any, to the application; and the entire application must be available for review and copying;(C) A copy of the executive director's preliminary decision, draft permit, preliminary determination summary and air quality analysis, if applicable, must be made available on the first day of newspaper publication of the Combined Notice required by this section and must remain available until the commission has taken action on the application; and(D) If the application is submitted with confidential information indicate in the public file that there is additional information in a confidential file marked as confidential by the applicant;(4) Complying with the requirements of §39.604(a) and (c) - (e) of this title (relating to Sign-Posting), except that the sign or signs must be in place on the first day of publication of the Combined Notice. The signs must remain in place and legible continuously throughout the entirety of the public comment period. The applicant shall provide verification that the sign posting was conducted according to §39.604 of this title; and(5) Complying with §39.605 of this title (relating to Notice to Affected Agencies).(c) The chief clerk shall be responsible for the following additional requirements.(1) Mailing the Combined Notice as required by §39.602 of this title (relating to Mailed Notice).(2) Transmitting the executive director's response to comments as provided for in §39.420(c)(1)(A) and (B), (2), and (d) of this title (relating to Transmittal of the Executive Director's Response to Comments and Decision).(d) The public comment period shall automatically be extended to the close of any public meeting or notice and comment hearing.(e) After the deadline for submitting public comment, final action on an application may be taken under Chapter 50 of this title (relating to Action on Applications and Other Authorizations).</content><note type="source"><p>Source Note: The provisions of this §39.412 adopted to be effective April 17, 2014, 39 TexReg 2854; amended to be effective September 16, 2021, 46 TexReg 5784; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.413"><num value="39.413">§39.413</num><heading>Mailed Notice</heading><content>Unless otherwise specified in Subchapters I-M of this chapter (relating to Public Notice of Solid Waste Applications, Public Notice of Water Quality Applications and Water Quality Management Plans, Public Notice of Air Quality Applications, Public Notice of Injection Well and Other Specific Applications, and Public Notice for Radioactive Material Licenses), when this chapter requires mailed notice, the chief clerk shall mail notice to:(1) the landowners named on the application map or supplemental map, or the sheet attached to the application map or supplemental map;(2) the mayor and health authorities of the city or town in which the facility is or will be located or in which waste is or will be disposed of;(3) The county judge and health authorities of the county in which the facility is or will be located or in which waste is or will be disposed of;(4) the Texas Department of Health;(5) the Texas Parks and Wildlife Department;(6) the Texas Railroad Commission;(7) if applicable, local, state and federal agencies for which notice is required in 40 Code of Federal Regulations (CFR), §124.10(c), as amended and adopted in the CFR through May 2, 1989 at 54 FedReg 18786;(8) if applicable, persons on a mailing list developed and maintained in accordance with 40 CFR §124.10(c)(1)(ix);(9) the applicant;(10) if the application concerns an injection well, the Water Well Drillers Advisory Council;(11) persons on a relevant mailing list kept under §39.407 of this title (relating to Mailing Lists);(12) any other person the executive director or chief clerk may elect to include;(13) if applicable, the secretary of the Coastal Coordination Council; and(14) persons who filed public comment or hearing requests on or before the deadline for filing public comment or hearing requests.</content><note type="source"><p>Source Note: The provisions of this §39.413 adopted to be effective September 23, 1999, 24 TexReg 8190.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.418"><num value="39.418">§39.418</num><heading>Notice of Receipt of Application and Intent to Obtain Permit</heading><content>(a) When the executive director determines that an application is administratively complete, the Office of the Chief Clerk (chief clerk) shall mail this determination concurrently with the Notice of Receipt of Application and Intent to Obtain Permit to the applicant.(b) Not later than 30 days after the executive director declares an application administratively complete:(1) the applicant, other than applicants for air quality permits, shall publish Notice of Receipt of Application and Intent to Obtain Permit once under §39.405(f)(1) of this title (relating to General Notice Provisions) and, for solid waste applications and injection well applications, also under §39.405(f)(2) of this title. The applicant shall also publish the notice under §39.426 of this title (relating to Alternative Language Requirements), if applicable;(2) the chief clerk shall mail Notice of Receipt of Application and Intent to Obtain Permit to those listed in §39.413 of this title (relating to Mailed Notice), and to:(A) the state senator and representative who represent the general area in which the facility is located or proposed to be located; and(B) the river authority in which the facility is located or proposed to be located if the application is under Texas Water Code, Chapter 26; and(3) the notice must include the applicable information required by §39.411(b) of this title (relating to Text of Public Notice).(c) For air quality permit applications, except applications for plant-wide applicability limit permits under Chapter 116, Subchapter C of this title (relating to Plant-Wide Applicability Limits), the applicant shall provide notice as specified in Subchapter K of this chapter (relating to Public Notice of Air Quality Permit Applications). Specifically, publication in the newspaper must follow the requirements under §39.603 of this title (relating to Newspaper Notice), sign posting must follow the requirements under §39.604 of this title (relating to Sign-Posting), and the chief clerk shall mail notice according to §39.602 of this title (relating to Mailed Notice). The applicant shall also follow the requirements, as applicable, under §39.426 of this title.</content><note type="source"><p>Source Note: The provisions of this §39.418 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective November 30, 2005, 30 TexReg 7877; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective September 16, 2021, 46 TexReg 5784.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.419"><num value="39.419">§39.419</num><heading>Notice of Application and Preliminary Decision</heading><content>(a) After technical review is complete, the executive director shall file the preliminary decision and the draft permit with the Office of the Chief Clerk (chief clerk). The chief clerk shall mail the preliminary decision concurrently with the Notice of Application and Preliminary Decision. For applications filed on or after September 1, 2015, this mailing will occur no earlier than 30 days after written notification of the draft permit is provided by the executive director to the state senator and state representative of the area in which the facility which is the subject of the application is or will be located. Then, when this chapter requires notice under this section, notice must be given as required by subsections (b) - (e) of this section.(1) Additionally, for the specific types of air quality applications listed in subparagraphs (A) and (B) of this subparagraph, the executive director shall file the executive director's draft permit and preliminary decision, the preliminary determination summary, and air quality analysis, as applicable, with the chief clerk; and the chief clerk shall post these on the commission's website. Notice of Application and Preliminary Decision must be published as specified in Subchapter K of this chapter (relating to Public Notice of Air Quality Permit Applications) and, as applicable, under §39.426 of this title. This applies to the following:(A) air applications subject to the requirements for Prevention of Significant Deterioration and Nonattainment permits in Chapter 116, Subchapter B of this title (relating to New Source Review Permits); and(B) air applications subject to Chapter 116, Subchapter E (Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)).(2) This section does not apply to any renewal application of an air quality permit that would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted and the application does not involve a facility for which the applicant's compliance history is in the lowest classification under Texas Water Code, §5.753 and §5.754 and the commission's rules in Chapter 60 of this title (relating to Compliance History).(b) The applicant shall publish Notice of Application and Preliminary Decision at least once in the same newspaper as the Notice of Receipt of Application and Intent to Obtain Permit, unless there are different requirements in this section or a specific subchapter in this chapter for a particular type of permit. The applicant shall also publish the notice under §39.426 of this title (relating to Alternative Language Requirements), if applicable.(c) Unless mailed notice is otherwise provided under this section, the chief clerk shall mail Notice of Application and Preliminary Decision to those listed in §39.413 of this title (relating to Mailed Notice).(d) For air quality applications, the chief clerk shall mail notice according to §39.602 of this title (relating to Mailed Notice).(e) The notice must include the information required by §39.411(c) of this title (relating to Text of Public Notice).</content><note type="source"><p>Source Note: The provisions of this §39.419 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective June 12, 2002, 27 TexReg 4948; amended to be effective November 30, 2005, 30 TexReg 7877; amended to be effective March 29, 2006, 31 TexReg 2471; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective April 17, 2014, 39 TexReg 2854; amended to be effective December 31, 2015, 40 TexReg 9644; amended to be effective May 14, 2020, 45 Texeg 3067; amended to be effective September 16, 2021, 46 TexReg 5784; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.420"><num value="39.420">§39.420</num><heading>Transmittal of the Executive Director's Response to Comments and Decision</heading><content>(a) Except for air quality permit applications, when required by and subject to §55.156 of this title (relating to Public Comment Processing), after the close of the comment period, the chief clerk shall transmit to the people listed in subsection (b) of this section the following information:(1) the executive director's decision;(2) the executive director's response to public comments;(3) instructions for requesting that the commission reconsider the executive director's decision; and(4) instructions for requesting a contested case hearing.(b) The following persons shall be sent the information listed in subsection (a) of this section:(1) the applicant;(2) any person who requested to be on the mailing list for the permit action;(3) any person who submitted comments during the public comment period;(4) any person who timely filed a request for a contested case hearing;(5) Office of the Public Interest Counsel; and(6) the director of the External Relations Division.(c) When required by and subject to §55.156 of this title, for air quality permit applications, after the close of the comment period, the chief clerk shall:(1) transmit to the people listed in subsection (d) of this section the following information:(A) the executive director's decision;(B) the executive director's response to public comments;(C) instructions for requesting that the commission reconsider the executive director's decision; and(D) instructions, which include the statements in clause (ii) of this subparagraph, for requesting a contested case hearing for applications:(i) for the following types of applications:(I) permit applications which are subject to the requirements for Prevention of Significant Deterioration and Nonattainment permits in Chapter 116, Subchapter B of this title (relating to New Source Review Permits) as described in §39.402(a)(2) of this title (relating to Applicability to Air Quality Permits and Permit Amendments);(II) permit and permit amendment applications which are not subject to the requirements for Prevention of Significant Deterioration and Nonattainment permits in Chapter 116, Subchapter B of this title, and for which hearing requests were received by the end of the 30-day comment period following the final publication of Notice of Receipt of Application and Intent to Obtain Permit, and these requests were not withdrawn as described in:(-a-) §39.402(a)(1), (3), (11) and (12) of this title; and(-b-) §39.402(a)(4) and (5) of this title;(III) applications subject to the requirements of Chapter 116, Subchapter E of this title (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)), whether for construction or reconstruction; and(ii) the following statements must be included:(I) a statement that a person who may be affected by emissions of air contaminants from the facility or proposed facility is entitled to request a contested case hearing from the commission;(II) that a contested case hearing request must include the requester's location relative to the proposed facility or activity;(III) that a contested case hearing request should include a description of how and why the requester will be adversely affected by the proposed facility or activity in a manner not common to the general public, including a description of the requester's uses of property which may be impacted by the proposed facility or activity;(IV) that only relevant and material disputed issues of fact raised during the comment period can be considered if a contested case hearing request is granted; and(V) that a contested case hearing request may not be based on issues raised solely in a comment withdrawn by the commenter in writing by filing a withdrawal letter with the chief clerk prior to the filing of the Executive Director's Response to Comment; and(2) for applications subject to the requirements for Prevention of Significant Deterioration and Nonattainment permits in Chapter 116, Subchapter B of this title, make available by electronic means on the commission's website the executive director's draft permit and preliminary decision, the executive director's response to public comments, and, as applicable, preliminary determination summary and air quality analysis.(d) The following persons shall be sent the information listed in subsection (c) of this section:(1) the applicant;(2) any person who requested to be on the mailing list for the permit action;(3) any person who submitted comments during the public comment period;(4) any person who timely filed a request for a contested case hearing;(5) Office of the Public Interest Counsel; and(6) the director of the External Relations Division.(e) For air quality permit applications which meet the following conditions, items listed in subsection (c)(1)(C) and (D) of this section are not required to be included in the transmittals:(1) applications for which no timely hearing request is submitted in response to the Notice of Receipt of Application and Intent to Obtain a Permit;(2) applications for which one or more timely hearing requests are submitted in response to the Notice of Receipt of Application and Intent to Obtain Permit and for which this is the only opportunity to request a hearing, and all of the requests are withdrawn before the date the preliminary decision is issued;(3) the application is for any renewal application that would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted unless the application involves a facility for which the applicant's compliance history is in the lowest classification under Texas Water Code, §5.753 and §5.754 and the commission's rules in Chapter 60 of this title (relating to Compliance History); or(4) applications for a Prevention of Significant Deterioration permit that would authorize only emissions of greenhouse gases as defined in §101.1 of this title (relating to Definitions).(f) For applications for which all timely comments and requests have been withdrawn before the filing of the executive director's response to comments, the chief clerk shall transmit only the items listed in subsection (a)(1) and (2) of this section and the executive director may act on the application under §50.133 of this title (relating to Executive Director Action on Application or WQMP Update).(g) For post-closure order applications under Subchapter N of this chapter (relating to Public Notice of Post-Closure Orders), the chief clerk shall transmit only items listed in subsection (a)(1) and (2) of this section to the people listed in subsection (b)(1) - (3), (5), and (6) of this section.(h) For applications for air quality permits under Chapter 116, Subchapter L of this title (relating to Permits for Specific Designated Facilities), the chief clerk will not transmit the item listed in subsection (a)(4) of this section.</content><note type="source"><p>Source Note: The provisions of this §39.420 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective December 27, 2001, 26 TexReg 10604; amended to be effective June 12, 2002, 27 TexReg 4948; amended to be effective January 30, 2003, 28 TexReg 690; amended to be effective March 29, 2006, 31 TexReg 2471; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective April 17, 2014, 39 TexReg 2854; amended to be effective May 14, 2020, 45 TexReg 3067; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.421"><num value="39.421">§39.421</num><heading>Notice of Commission Meeting to Evaluate a Request for Reconsideration or Hearing on an Application</heading><content>If, under Chapter 55 of this title (relating to Requests for Reconsideration and Contested Case Hearings; Public Comment), a request for reconsideration or hearing on an application is set for consideration during a commission meeting, the chief clerk shall mail notice to the applicant, executive director, public interest counsel, all persons who commented (or a representative of a group or association), and the persons making the request, no later than 30 days before the first meeting at which the commission considers the request.</content><note type="source"><p>Source Note: The provisions of this §39.421 adopted to be effective September 23, 1999, 24 TexReg 8190.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.423"><num value="39.423">§39.423</num><heading>Notice of Contested Case Hearing</heading><content>(a) The Office of the Chief Clerk (chief clerk) shall mail notice of a contested case hearing to the applicant, executive director, and public interest counsel. The chief clerk shall also mail notice to persons who filed public comment, or requests for reconsideration or contested case hearing. The notice shall be mailed to the parties no less than 13 days before the hearing. The chief clerk may combine the mailed notice required by this section with other mailed notice of hearing required by this chapter. If the commission refers an application to the State Office of Administrative Hearings on the sole question of whether the requester is an affected person, the notice in this subsection shall be the only notice required. The requirements of §39.426 of this title (relating to Alternative Language Requirements) shall be met, as applicable.(b) For specific types of applications, additional requirements for notice of hearing are in Subchapters H - M of this chapter (relating to Applicability and General Provisions, Public Notice of Solid Waste Applications, Public Notice of Water Quality Applications and Water Quality Management Plans, Public Notice of Air Quality Applications, Public Notice of Injection Well and Other Specific Applications, and Public Notice for Radioactive Material Licenses).(c) After an initial preliminary hearing, the judge shall give reasonable notice of subsequent prehearing conferences or the evidentiary hearing by making a statement on the record in a prehearing conference or by written notice to the parties.</content><note type="source"><p>Source Note: The provisions of this §39.423 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective September 16, 2021, 46 TexReg 5784; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.425"><num value="39.425">§39.425</num><heading>Notice of Contested Enforcement Case Hearing</heading><content>For any contested enforcement case hearing, the chief clerk shall mail notice to the statutory parties, respondents, and persons who have requested to be on a mailing list for the pleadings in the formal enforcement action no less than 13 days before a hearing in accordance with the Administrative Procedures Act, §2001.052. In addition, public notice and opportunity for comment before the commission regarding a proposed enforcement action shall be given under Chapter 10 of this title (relating to Commission Meetings).</content><note type="source"><p>Source Note: The provisions of this §39.425 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scH/s39.426"><num value="39.426">§39.426</num><heading>Alternative Language Requirements</heading><content>(a) Applicability.(1) The following are subject to this section:(A) air quality permit applications; and(B) permit applications other than air quality permit applications that are required to comply with §39.418 or §39.419 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit; and Notice of Application and Preliminary Decision).(2) This section applies whenever notice is required to be published under §39.418 or §39.419 of this title, and either the elementary or middle school nearest to the facility or proposed facility is required to provide a bilingual education program as required by Texas Education Code, Chapter 29, Subchapter B, and 19 TAC §89.1205(a) (relating to Required Bilingual Education and English as a Second Language Programs) and one of the following conditions is met:(A) students are enrolled in a program at that school;(B) students from that school attend a bilingual education program at another location; or(C) the school that otherwise would be required to provide a bilingual education program has been granted an exception from the requirements to provide the program as provided for in 19 TAC §89.1207(a) (relating to Bilingual Education Exceptions and English as a Second Language Waivers).(3) Elementary or middle schools that offer English as a second language under 19 TAC §89.1205(d), and are not otherwise affected by 19 TAC §89.1205(a), will not trigger the requirements of this section.(4) This section also applies when the executive director determines that alternative language notice is necessary to provide proper notice and meaningful access to affected communities.(b) Alternative language newspaper notice.(1) The notice required by §39.418 or §39.419 of this title must be published in a newspaper or publication that is published primarily in the alternative languages in which the bilingual education program is or would have been taught, and the notice must be in those languages.(2) The newspaper or publication must be of general circulation in the county in which the facility is located or proposed to be located. If the facility is located or proposed to be located in a municipality, and there exists a newspaper or publication of general circulation in the municipality, the applicant shall publish notice only in the newspaper or publication in the municipality. This paragraph does not apply to notice required to be published for air quality permits under §39.603 of this title (relating to Newspaper Notice).(3) For notice required to be published in a newspaper or publication under §39.603 of this title, relating to air quality permits, the newspaper or publication must be of general circulation in the municipality or county in which the facility is located or is proposed to be located, and the notice must be published as follows.(A) One notice must be published in the public notice section of the newspaper and must comply with the applicable portions of §39.411 of this title (relating to Text of Public Notice).(B) Another notice with a total size of at least six column inches, with a vertical dimension of at least three inches and a horizontal dimension of at least two column widths, or a size of at least 12 square inches, must be published in a prominent location elsewhere in the same issue of the newspaper. This notice must contain the following information:(i) permit application number;(ii) company name;(iii) type of facility;(iv) description of the location of the facility; and(v) a note that additional information is in the public notice section of the same issue.(4) Waste and water quality alternative language must be published in the public notice section of the alternative language newspaper and must comply with §39.411 of this title.(5) The requirements of this subsection are waived for each language in which no publication exists, or if the publishers of all alternative language publications refuse to publish the notice. If the alternative language publication is published less frequently than once a month, this notice requirement may be waived by the executive director on a case-by-case basis.(A) For permit applications that are declared by the executive director to be administratively complete on or after May 1, 2022, if this notice is waived, the applicant will provide the alternative language notice required in paragraph (3)(A) of this subsection to the Office of the Chief Clerk (chief clerk), and this notice will be posted electronically on the commission's website;(B) The published English language notice will include instructions in the alternative language explaining how to access the electronic version of the alternative language notice.(6) Notice under this subsection will only be required to be published within the United States.(7) Each alternative language publication must follow the requirements of this chapter that are consistent with this section.(8) If a waiver is received under this section on an air quality permit application, the applicant shall complete a verification and submit it as required under §39.605(3) of this title (relating to Notice to Affected Agencies). If a waiver is received under this section on a waste or water quality application, the applicant shall complete a verification and submit it to the chief clerk and the executive director.(c) Alternative language requirement for applicant's summary of application. For permit applications that are declared by the executive director to be administratively complete on or after May 1, 2022, when an application is subject to the requirements of this section, the applicant shall also provide an alternative language version of the summary of application that is required by §39.405(k) of this title (relating to General Notice Provisions). This summary shall be posted on the commission's website.(d) Alternative language requirements for public meetings: (1) When a public meeting is held under §55.154 of this title (relating to Public Meetings), the chief clerk shall mail notice of that public meeting in the alternative language, if alternative language notice is required to be published by subsection (b) of this section.(A) Notice of the public meeting shall be given as required by §39.411(d) or (g) of this title (relating to Text of Public Notice), as applicable.(B) For air quality permit applications, this notice shall be mailed by the chief clerk's office at least 30 calendar days prior to the date of the public meeting.(C) The alternative language notice of the public meeting will be published on the commission's website.(2) The applicant shall provide for competent interpretative services in the same alternative language at the public meeting. Interpretation services must be provided if:(A) the chief clerk has received comments in the alternative language at least two weeks before the public meeting is scheduled; or(B) there is substantial or significant public interest that would be served by having translation services available.(3) This subsection will apply to permit applications that are declared by the executive director to be administratively complete on or after May 1, 2022.(e) Alternative language requirements for response to comments.(1) The executive director is required to evaluate the need to provide a written response to comments in accordance with §55.156(b)(1) of this title (relating to Public Comment Processing) in an alternative language when formal written or oral comments are received on the permit application in the alternative language; the executive director will consider the following factors when making this determination:(A) if the comments received on the application were substantive;(B) how many comments in an alternative language were received on the proposed application;(C) if the language in which the comments were received is commonly spoken in the community in which the proposed application would be located;(D) if a notice was required by this section to be published in that language; and(E) if an alternative language response is necessary to ensure that the commenter can fully participate in the processes of the commission related to the permit application.(2) The executive director may also provide the response to comments in the alternative language when there is significant public interest that would be served by the response to comments in the alternative language.(3) When a translated response to comments is provided, the transmittal letter mailed out by the chief clerk in accordance with §55.156(c) of this title shall:(A) also be provided in the alternative language; and(B) the instructions for further public participation that are required by §55.156(d) and (e) of this title shall also be provided in the alternative language.(4) When a translated response to comments is necessary, the executive director may use any resources available to translate the response; the translated response to comments may include a statement as to the source of the translation, and information for how to obtain answers to questions related to the translation.(5) When the executive director determines that it is not necessary to translate a response to comments even though comments have been received in an alternative language, the transmittal letter will include information in both English and the alternative language about how to use available translation tools to translate the response into an alternative language.(6) This subsection will apply to permit applications that are declared by the executive director to be administratively complete on or after May 1, 2022.(f) Alternative language requirements for response to requests for reconsideration or hearing requests. This subsection applies whenever requests for reconsideration or hearing requests are received in accordance with §55.201 of this title (relating to Requests for Reconsideration or Contested Case Hearing) in an alternative language.(1) the notice transmitted by the chief clerk in accordance with §55.209 of this title (relating to Processing Requests for Reconsideration and Contested Case Hearing) concerning commission action on hearing requests shall be provided in the alternative language; (2) any written responses to the requests for reconsideration or hearing requests submitted by the executive director, the Office of Public Interest Counsel, and the applicant shall be provided in the alternative language;(3) when a translated response to requests for reconsideration or hearing is required, the executive director, the Office of Public Interest Counsel, and the applicant may use any resources available to translate the response; the translated response may include a statement as to the source of the translation, and information for how to obtain answers to questions related to the translation;(4) written commission orders on hearing requests subject to this subsection shall also be provided in the alternative language;(5) when hearing requests that require alternative language documents are heard by the commissioners at agenda, the commission shall provide oral interpretation of the agenda consideration in the alternative language;(6) notice required in accordance with §50.119 of this title (relating to Notice of Commission Action, Motion for Rehearing), shall also be provided in the alternative language when this subsection applies;(7) notice required in accordance with §39.423 of this title (relating to Notice of Contested Case Hearing), shall also be provided in the alternative language; and(8) this subsection will apply to permit applications that are declared by the executive director to be administratively complete on or after May 1, 2022.(g) Remedy for Alternative Language Translation Errors.(1) For notices, only substantive errors in translation require that notice be re-published or re-mailed. Substantive errors include, but are not limited to, errors in deadlines, meeting locations, log-in information for virtual meetings, time of meetings, information relating to means to obtain further information about the subject of the notice, and information about the permit applicant.(2) Absent a demonstration of willful misconduct in connection with the translation, a minor translation error shall not be grounds for preventing, vacating, delaying, or otherwise impairing the effectiveness of an action by the executive director or the commission. (3) In the event of an alleged translation error, the original English version of a document shall be deemed conclusive.(4) A complainant's remedy shall be to receive a revised translation within a reasonable period of time.(5) This subsection will apply to permit applications that are declared by the executive director to be administratively complete on or after May 1, 2022.</content><note type="source"><p>Source Note: The provisions of this §39.426 adopted to be effective September 16, 2021, 46 TexReg 5784; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c39/scI"><num value="I">SUBCHAPTER I</num><heading>PUBLIC NOTICE OF SOLID WASTE APPLICATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c39/scI/s39.501"><num value="39.501">§39.501</num><heading>Application for Municipal Solid Waste Permit</heading><content>(a) Applicability. This section applies to applications for municipal solid waste permits.(b) Preapplication local review committee process. If an applicant for a municipal solid waste permit decides to participate in a local review committee process under Texas Health and Safety Code, §361.063, the applicant shall submit to the executive director a notice of intent to file an application, setting forth the proposed location and type of facility. The executive director shall mail notice to the county judge of the county in which the facility is to be located. If the proposed facility is to be located in a municipality or the extraterritorial jurisdiction of a municipality, a copy of the notice must also be mailed to the mayor of the municipality. The executive director shall also mail notice to the appropriate regional solid waste planning agency or council of government. The mailing must be by certified mail.(c) Notice of Receipt of Application and Intent to Obtain a Permit.(1) Upon the executive director's receipt of an application, or notice of intent to file an application, the chief clerk shall mail notice to the state senator and representative who represent the area in which the facility is or will be located.(2) After the executive director determines that the application is administratively complete:(A) notice must be given as required by §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit) and, if a newspaper is not published in the county, then the applicant shall publish notice in a newspaper of circulation in the immediate vicinity in which the facility is located or proposed to be located. This notice must contain the text as required by §39.411(b)(1) - (11) of this title (relating to Text of Public Notice);(B) the chief clerk shall publish Notice of Receipt of Application and Intent to Obtain Permit in the Texas Register; and(C) the executive director or chief clerk shall mail the Notice of Receipt of Application and Intent to Obtain Permit, along with a copy of the application or summary of its contents to the mayor and health authority of a municipality in whose territorial limits or extraterritorial jurisdiction the solid waste facility is located, and to the county judge and the health authority of the county in which the facility is located.(d) Notice of Application and Preliminary Decision. The notice required by §39.419 of this title (relating to Notice of Application and Preliminary Decision) must be published once as required by §39.405(f)(2) of this title (relating to General Notice Provisions). The notice must be published after the chief clerk has mailed the Notice of Application and Preliminary Decision to the applicant. The notice must contain the text as required by §39.411(c)(1) - (6) of this title.(e) Notice of public meeting.(1) For an application for a new facility, the agency:(A) may hold a public meeting under §55.154 of this title (relating to Public Meetings) in the county in which the facility is proposed to be located to receive public comment concerning the application; but(B) shall hold a public meeting under §55.154 of this title in the county in which the facility is proposed to be located to receive public comment concerning the application:(i) on the request of a member of the legislature who represents the general area in which the facility is proposed to be located; or(ii) if the executive director determines that there is substantial public interest in the proposed facility.(2) The applicant may hold a public meeting in the county in which the facility is proposed to be located.(3) For purposes of this subsection, "substantial public interest" is demonstrated if a request for a public meeting is filed by:(A) a local governmental entity with jurisdiction over the location at which the facility is proposed to be located by formal resolution of the entity's governing body;(B) a council of governments with jurisdiction over the location at which the facility is proposed to be located by formal request of either the council's solid waste advisory committee, executive committee, or governing board;(C) a homeowners' or property owners' association formally organized or chartered and having at least ten members located in the general area in which the facility is proposed to be located; or(D) a group of ten or more local residents, property owners, or businesses located in the general area in which the facility is proposed to be located.(4) A public meeting is not a contested case proceeding under the Administrative Procedure Act. A public meeting held as part of a local review committee process under subsection (b) of this section meets the requirements of paragraph (1) of this subsection if public notice is provided under this subsection.(5) The applicant shall publish notice of any public meeting under this subsection, in accordance with §39.405(f)(2) of this title, once each week during the three weeks preceding a public meeting. The published notice must be at least 15 square inches (96.8 square centimeters) with a shortest dimension of at least three inches (7.6 centimeters). For public meetings under paragraph (2) of this subsection, the notice of public meeting is not subject to §39.411(d) of this title, but instead must contain at least the following information: (A) permit application number;(B) applicant's name;(C) proposed location of the facility;(D) location and availability of copies of the application; (E) location, date, and time of the public meeting; and(F) name, address, and telephone number of the contact person for the applicant from whom interested persons may obtain further information.(6) For public meetings held by the agency under paragraph (1) of this subsection, the chief clerk shall mail notice to the persons listed in §39.413 of this title (relating to Mailed Notice).(f) Notice of hearing.(1) This subsection applies if an application is referred to the State Office of Administrative Hearings for a contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings).(2) The applicant shall publish notice at least once under §39.405(f)(2) of this title.(3) Mailed notice.(A) If the applicant proposes a new facility, the applicant shall mail notice of the hearing to each residential or business address located within 1/2 mile of the facility and to each owner of real property located within 1/2 mile of the facility listed in the real property appraisal records of the appraisal district in which the facility is located. The notice must be mailed to the persons listed as owners in the real property appraisal records on the date the application is determined to be administratively complete. The notice must be mailed no more than 45 days and no less than 30 days before the hearing. Within 30 days after the date of mailing, the applicant shall file with the chief clerk an affidavit certifying compliance with its obligations under this subsection. Filing an affidavit certifying facts that constitute compliance with notice requirements creates a rebuttable presumption of compliance with this subparagraph.(B) If the applicant proposes to amend a permit, the chief clerk shall mail notice to the persons listed in §39.413 of this title.(4) Notice under paragraphs (2) and (3)(B) of this subsection must be completed at least 30 days before the hearing.</content><note type="source"><p>Source Note: The provisions of this §39.501 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective August 15, 2002, 27 TexReg 7132; amended to be effective July 19, 2006, 31 TexReg 5646; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective May 14, 2020, 45 TexReg 3060; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scI/s39.503"><num value="39.503">§39.503</num><heading>Application for Industrial or Hazardous Waste Facility Permit</heading><content>(a) Applicability. This section applies to applications for industrial or hazardous waste facility permits.(b) Preapplication requirements.(1) If an applicant for an industrial or hazardous waste facility permit decides to participate in a local review committee process under Texas Health and Safety Code, §361.063, the applicant shall submit a notice of intent to file an application to the executive director, setting forth the proposed location and type of facility. The applicant shall mail notice to the county judge of the county in which the facility is to be located. If the proposed facility is to be located in a municipality or the extraterritorial jurisdiction of a municipality, a copy of the notice must also be mailed to the mayor of the municipality. Mailed notice must be by certified mail. When the applicant submits the notice of intent to the executive director, the applicant shall publish notice of the submission in a paper of general circulation in the county in which the facility is to be located. (2) The requirements of this paragraph are set forth in 40 Code of Federal Regulations (CFR) §124.31(b) - (d), which is adopted by reference as amended and adopted in the CFR through December 11, 1995 (60 FR 63417), and apply to all hazardous waste part B applications for initial permits for hazardous waste management units, hazardous waste part B permit applications for major amendments, and hazardous waste part B applications for renewal of permits, where the renewal application is proposing a significant change in facility operations. For the purposes of this paragraph, a "significant change" is any change that would qualify as a Class 3 permit modification under §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee). The requirements of this paragraph do not apply to an application for minor amendment under §305.62 of this title (relating to Amendments), correction under §50.145 of this title (relating to Corrections to Permits), or modification under §305.69 of this title, or to an application that is submitted for the sole purpose of conducting post-closure activities or post-closure activities and corrective action at a facility, unless the application is also for an initial permit for hazardous waste management unit(s), or the application is also for renewal of the permit, where the renewal application is proposing a significant change in facility operations.(c) Notice of Receipt of Application and Intent to Obtain Permit.(1) Upon the executive director's receipt of an application, or notice of intent to file an application, the Office of the Chief Clerk (chief clerk) shall mail notice to the state senator and representative who represent the area in which the facility is or will be located and to the persons listed in §39.413 of this title (relating to Mailed Notice). For all hazardous waste part B applications for initial permits for hazardous waste management units, hazardous waste part B permit applications for major amendments, and hazardous waste part B applications for renewal of permits, the chief clerk shall provide notice to meet the requirements of this subsection and 40 CFR §124.32(b), which is adopted by reference as amended and adopted in the CFR through December 11, 1995 (60 FR 63417), and the executive director shall meet the requirements of 40 CFR §124.32(c), which is adopted by reference as amended and adopted in the CFR through December 11, 1995 (60 FR 63417). The requirements of this paragraph relating to 40 CFR §124.32(b) and (c) do not apply to an application for minor amendment under §305.62 of this title, correction under §50.145 of this title, or modification under §305.69 of this title, or to an application that is submitted for the sole purpose of conducting post-closure activities or post-closure activities and corrective action at a facility, unless the application is also for an initial permit for hazardous waste management unit(s), or the application is also for renewal of the permit.(2) After the executive director determines that the application is administratively complete:(A) notice must be given as required by §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit). Notice under §39.418 of this title will satisfy the notice of receipt of application required by §281.17(d) of this title (relating to Notice of Receipt of Application and Declaration of Administrative Completeness); and(B) the executive director or chief clerk shall mail notice of this determination along with a copy of the application or summary of its contents to the mayor and health authority of a municipality in whose territorial limits or extraterritorial jurisdiction the solid waste facility is located, and to the county judge and the health authority of the county in which the facility is located.(d) Notice of Application and Preliminary Decision. The notice required by §39.419 of this title (relating to Notice of Application and Preliminary Decision) must be published once as required by §39.405(f)(2) of this title (relating to General Notice Provisions). In addition to the requirements of §39.419 of this title and §39.426 of this title (relating to Alternative Language Requirements), the following requirements apply.(1) The applicant shall publish notice at least once in a newspaper of general circulation in each county that is adjacent or contiguous to each county in which the facility is located. One notice may satisfy the requirements of §39.405(f)(2) of this title and of this subsection, if the newspaper meets the requirements of both rules.(2) If the application concerns a hazardous waste facility, the applicant shall broadcast notice of the application on one or more local radio stations that broadcast to an area that includes all of the county in which the facility is located. The executive director may require that the broadcasts be made to an area that also includes contiguous counties.(3) The notice must comply with §39.411 of this title (relating to Text of Public Notice). The deadline for public comments on industrial solid waste applications will be not less than 30 days after newspaper publication, and for hazardous waste applications, not less than 45 days after newspaper publication.(e) Notice of public meeting.(1) For an application for a new hazardous waste facility, the agency:(A) may hold a public meeting under §55.154 of this title (relating to Public Meetings) in the county in which the facility is proposed to be located to receive public comment concerning the application; but(B) shall hold a public meeting under §55.154 of this title in the county in which the facility is proposed to be located to receive public comment concerning this application:(i) on the request of a member of the legislature who represents the general area in which the facility is proposed to be located; or(ii) if the executive director determines that there is substantial public interest in the proposed facility.(2) For an application for a major amendment to or a Class 3 modification of an existing hazardous waste facility permit, the agency:(A) may hold a public meeting under §55.154 of this title in the county in which the facility is located to receive public comment concerning the application; but(B) shall hold a public meeting under §55.154 of this title in the county in which the facility is located to receive public comment concerning the application:(i) on the request of a member of the legislature who represents the general area in which the facility is located; or(ii) if the executive director determines that there is substantial public interest in the facility.(3) For purposes of this subsection, "substantial public interest" is demonstrated if a request for a public meeting is filed by:(A) a local governmental entity with jurisdiction over the location at which the facility is located or proposed to be located by formal resolution of the entity's governing body;(B) a council of governments with jurisdiction over the location at which the facility is located or proposed to be located by formal request of either the council's solid waste advisory committee, executive committee, or governing board;(C) a homeowner's or property owners' association formally organized or chartered and having at least ten members located in the general area in which the facility is located or proposed to be located; or(D) a group of ten or more local residents, property owners, or businesses located in the general area in which the facility is located or proposed to be located.(4) For an application for a new industrial or hazardous waste facility that would accept municipal solid waste, the applicant may hold a public meeting in the county in which the facility is proposed to be located.(5) A public meeting is not a contested case proceeding under the Administrative Procedure Act. A public meeting held as part of a local review committee process under subsection (b) of this section meets the requirements of paragraph (1) or (2) of this subsection if public notice is provided under this subsection.(6) The applicant shall publish notice of any public meeting under this subsection, in accordance with §39.405(f)(2) of this title, once each week during the three weeks preceding a public meeting. The published notice must be at least 15 square inches (96.8 square centimeters) with a shortest dimension of at least three inches (7.6 centimeters). For public meetings under paragraph (3) of this subsection, the notice of public meeting is not subject to §39.411(d) or §39.410(e) of this title, but instead must contain at least the following information:(A) permit application number;(B) applicant's name;(C) proposed location of the facility;(D) location and availability of copies of the application; (E) location, date, and time of the public meeting; and(F) name, address, and telephone number of the contact person for the applicant from whom interested persons may obtain further information.(7) For public meetings held by the agency under paragraph (1) or (2) of this subsection, the chief clerk shall mail notice to the persons listed in §39.413 of this title.(f) Notice of hearing.(1) Applicability. This subsection applies if an application is referred to the State Office of Administrative Hearings for a contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings).(2) Newspaper notice.(A) The applicant shall publish notice at least once in a newspaper of general circulation in the county in which the facility is located and in each county and area that is adjacent or contiguous to each county in which the proposed facility is located.(B) If the application concerns a hazardous waste facility, the hearing must include one session held in the county in which the facility is located. The applicant shall publish notice of the hearing once each week during the three weeks preceding the hearing under §39.405(f)(2) of this title. The published notice must be at least 15 square inches (96.8 square centimeters) with a shortest dimension of at least three inches (7.6 centimeters) or have a total size of at least nine column inches (18 square inches). The text of the notice must include the statement that at least one session of the hearing will be held in the county in which the facility is located.(3) Mailed notice.(A) If the applicant proposes a new solid waste management facility, the applicant shall mail notice to each residential or business address located within 1/2 mile of the facility and to each owner of real property located within 1/2 mile of the facility listed in the real property appraisal records of the appraisal district in which the facility is located. The notice must be mailed to the persons listed as owners in the real property appraisal records on the date the application is determined to be administratively complete. The chief clerk shall mail notice to the persons listed in §39.413 of this title, except that the chief clerk shall not mail notice to the persons listed in §39.413(1) of this title. The notice must be mailed no more than 45 days and no less than 30 days before the hearing. Within 30 days after the date of mailing, the applicant shall file with the chief clerk an affidavit certifying compliance with its obligations under this subsection. Filing an affidavit certifying facts that constitute compliance with notice requirements creates a rebuttable presumption of compliance with this subparagraph.(B) If the applicant proposes to amend or renew an existing permit, the chief clerk shall mail notice to the persons listed in §39.413 of this title.(4) Radio broadcast. If the application concerns a hazardous waste facility, the applicant shall broadcast notice of the hearing under subsection (d)(2) of this section.(5) Deadline. Notice under paragraphs (2)(A), (3), and (4) of this subsection must be completed at least 30 days before the hearing.(g) Injection wells. This section does not apply to applications for an injection well permit.(h) Information repository. The requirements of 40 CFR §124.33(b) - (f), which is adopted by reference as amended and adopted in the CFR through December 11, 1995 (60 FR 63417), apply to all applications for hazardous waste permits.</content><note type="source"><p>Source Note: The provisions of this §39.503 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective August 15, 2002, 27 TexReg 7132 ; amended to be effective November 30, 2005, 30 TexReg 7877; amended to be effective July 19, 2006, 31 TexReg 5646; amended to be effective May 14, 2020, 45 TexReg 3060; amended to be effective September 16, 2021, 46 TexReg 5784; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scI/s39.509"><num value="39.509">§39.509</num><heading>Application for a Class 3 Modification of an Industrial or Hazardous Waste Permit</heading><content>(a) Applicability. This section applies to applications for Class 3 modification of industrial or hazardous waste permits.(b) Notice shall be given under §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit). Notice shall also be given under §39.419 of the title (relating to Notice of Application and Preliminary Decision).(c) Notice of the meeting required by §305.69(d) shall be included with the Notice of Receipt of Application and Intent to Obtain Permit under §39.418.</content><note type="source"><p>Source Note: The provisions of this §39.509 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scI/s39.510"><num value="39.510">§39.510</num><heading>Notice Requirements for Inactive Municipal Solid Waste Permit</heading><content>(a) This section applies to the owners or operators of inactive permitted municipal solid waste (MSW) facilities, which are those facilities that have not accepted waste within two years of permit issuance or have ceased accepting waste for at least two consecutive years. For the purposes of this section, permit issuance means the date that a permit is issued by the commission or the date of a final, non-appealable decision regarding the permit. This section applies to facilities permitted before, on, or after the effective date of this rule.(1) Within two years of the date of permit issuance, the date of ceasing to accept waste, or the effective date of this rule, whichever is later, the owner or operator of an inactive MSW facility shall notify the executive director, in writing, that the facility is inactive and that the owner or operator intends to operate the facility in the future. In the event that the owner or operator does not intend to operate the facility, the owner or operator should begin voluntary permit revocation procedures.(2) Within two years of the date of permit issuance, the date of ceasing to accept waste, or the effective date of this rule, whichever is later, the owner or operator of an inactive permitted MSW facility shall publish notice of intent to operate the facility, at least once, in a newspaper of the largest circulation that is published in the county in which the facility is located or proposed to be located. If a newspaper is not published in the county, then the owner or operator shall publish notice in a newspaper of general circulation in the county in which the facility is located or proposed to be located, and such notice may be satisfied by a one-time publication if the publishing newspaper meets the circulation requirements. Thereafter, notice must be published annually in accordance with this paragraph, until the facility begins accepting waste or voluntary permit revocation is requested.(3) Within two years of the date of permit issuance, the date of ceasing to accept waste, or the effective date of this rule, whichever is later, the owner or operator of an inactive permitted MSW facility shall provide, by certified mail, the notice of intent to operate the facility to:(A) landowners within 500 feet of the facility property line, as determined by county tax rolls or other reliable sources;(B) the mayor and health authorities of the city or town in which territorial limits or extraterritorial jurisdiction the facility is located or proposed to be located;(C) the county judge and health authorities of the county in which the facility is located or proposed to be located; and(D) the council of governments that serves or covers the area or county in which the facility is located or proposed to be located. Thereafter, notice must be sent annually in accordance with this paragraph, until the facility begins accepting waste.(4) The owner or operator shall file an affidavit with the executive director certifying facts that constitute compliance with the notice requirements of paragraphs (2) and (3) of this subsection within 30 days of the last publication of the published notice required by paragraph (2) of this subsection. The owner or operator shall also file a copy of the published notice required by paragraph (2) of this subsection with the executive director that shows the date of publication and the name of the newspaper within ten business days after its publication. The deadline to file a copy of the published notice that shows the date of publication and the name of the newspaper is ten business days after the last date of publication. The deadline to file the affidavit is 30 calendar days after the last date of publication for each notice. Filing an affidavit certifying facts that constitute compliance with the public notice requirements of paragraphs (2) and (3) of this subsection creates a rebuttable presumption of compliance with the requirement to publish notice.(5) The text of the newspaper notice and the mailed notice must include:(A) the name and address of the agency and the telephone number of an agency contact from whom interested persons may obtain further information;(B) the name, address, and telephone number of the owner or operator and a contact person from whom interested persons may obtain further information and, if different, the location of the facility or activity to be regulated by the permit;(C) a brief description of the activity authorized by the permit;(D) the permit number and permit issuance date; and(E) a statement indicating that the permitted facility may begin construction or operation at a future time, and an estimated date of when the facility is expected to begin construction and operation. (b) Within six months of the date of permit issuance, the date of ceasing to accept waste, or the effective date of this rule, whichever is later, the owners or operators of permitted MSW facilities that are not receiving waste shall provide signs specifying the facility's status. At the owner's or operator's expense, a sign or signs must be placed at the site of the permitted facility declaring that the permit has been issued and stating the manner in which the commission and owner or operator may be contacted for further information. Such signs must be provided by the owner or operator and must substantially meet the following requirements. Signs must:(1) consist of dark lettering on a white background and must be no smaller than four feet by four feet with letters at least three inches in height and block printed capital lettering;(2) be headed by the words "AUTHORIZED MUNICIPAL SOLID WASTE DISPOSAL FACILITY";(3) include the words "PERMIT NO.", the number of the permit, and the type of permit;(4) include the words "for further information contact";(5) include the words "Texas Commission on Environmental Quality" and the address and telephone number of the appropriate commission regional office;(6) include the name of the owner or operator, and the address of the appropriate responsible official;(7) include the telephone number of the owner or operator; (8) include the expected start-up date for beginning operation; and(9) remain in place and legible until the facility is opened. The owner or operator shall provide a verification to the executive director that the sign posting was conducted according to the requirements of this section.(c) Each sign placed at the site must be located within ten feet of every property line bordering a public highway, street, or road. Signs must be visible from the street and spaced at not more than 1,500-foot intervals. A minimum of one sign, but no more than three signs, shall be required along any property line paralleling a public highway, street, or road. This section's sign requirements do not apply to properties under the same ownership that are noncontiguous or separated by intervening public highway, street, or road, unless the property is part of the permitted facility.(d) The executive director may approve variances from the requirements of subsections (b) and (c) of this section if the owner or operator has demonstrated that it is not practical to comply with the specific requirements of this subsection and alternative sign posting plans proposed by the applicant are at least as effective in providing notice to the public. Approval from the executive director under this subsection must be received before posting alternative signs for purposes of satisfying the requirements of this section.</content><note type="source"><p>Source Note: The provisions of this §39.510 adopted to be effective June 2, 2005, 30 TexReg 3102; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c39/scJ"><num value="J">SUBCHAPTER J</num><heading>PUBLIC NOTICE OF WATER QUALITY APPLICATIONS AND WATER QUALITY MANAGEMENT PLANS</heading><section identifier="/us/state/tx/tac/t30/p1/c39/scJ/s39.551"><num value="39.551">§39.551</num><heading>Application for Wastewater Discharge Permit, Including Application for the Disposal of Sewage Sludge or Water Treatment Sludge</heading><content>(a) Applicability. This section applies to applications for wastewater discharge permits, including disposal of sewage sludge or water treatment sludge applications. This subchapter does not apply to registrations and notifications for sludge disposal under §312.13 of this title (relating to Actions and Notice).(b) Notice of receipt of application and intent to obtain permit.(1) Notice under §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit) is required to be published no later than 30 days after the executive director deems an application administratively complete. This notice must contain the text as required by §39.411(b)(1) - (9) and (11) of this title (relating to Text of Public Notice). In addition to the requirements of §39.418 of this title, the chief clerk shall mail notice to the School Land Board if the application will affect lands dedicated to the permanent school fund. The notice shall be in the form required by Texas Water Code, §5.115(c).(2) Mailed notice to adjacent or downstream landowners is not required for:(A) an application to renew a permit;(B) an application for a new Texas Pollutant Discharge Elimination System (TPDES) permit for a discharge authorized by an existing state permit issued before September 14, 1998 for which the application does not propose any term or condition that would constitute a major amendment to the state permit under §305.62 of this title (relating to Amendments); or(C) an application for a new permit or major amendment to a TPDES permit that authorizes the discharges from a municipal separate storm sewer system (MS4).(3) For permits listed in paragraph (2)(C) of this subsection, the executive director will require the applicant to post a copy of the notice of receipt of application and intent to obtain a permit. The notice must be posted within 30 days of the application being declared administratively complete and remain posted until the commission has taken final action on the application. The notice must be posted at a place convenient and readily accessible to the public in the administrative offices of the political subdivision in the county in which the MS4 or discharge is located.(c) Notice of application and preliminary decision. Notice under §39.419 of this title (relating to Notice of Application and Preliminary Decision) is required to be published after the chief clerk has mailed the preliminary decision and the Notice of Application and Preliminary Decision to the applicant. This notice must contain the text required by §39.411(b)(1) - (3), (5) - (7), (9), and (11) and (c)(2) - (6) of this title. In addition to §39.419 of this title, for all applications except applications to renew permits, the following provisions apply.(1) The applicant shall publish notice of application and preliminary decision at least once in a newspaper regularly published or circulated within each county where the proposed facility or discharge is located and in each county affected by the discharge. The executive director shall provide to the chief clerk a list of the appropriate counties, and the chief clerk shall provide the list to the applicant.(2) The chief clerk shall mail notice to the persons listed in §39.413 of this title (relating to Mailed Notice).(A) For any application involving an average daily discharge of five million gallons or more, in addition to the persons listed in §39.413 of this title, the chief clerk shall mail notice to each county judge in the county or counties located within 100 statute miles of the point of discharge who has requested in writing that the commission give notice, and through which water into or adjacent to which waste or pollutants are to be discharged under the permit, flows after the discharge.(B) If the notice of the receipt of application and intent to obtain a permit was mailed more than two years prior to the time that notice of application and preliminary decision is scheduled by the executive director to be mailed, the applicant must submit an updated landowner map, landowner list, and any associated information for mailing the notice of application and preliminary decision. Notwithstanding this requirement, the Executive Director may require an updated landowner map, landowner list, and any associated information for mailing the notice of the application and preliminary decision if circumstances in the area have significantly changed that warrant updated lists.(3) The notice must set a deadline to file public comment with the chief clerk that is not less than 30 days after newspaper publication. However, the notice may be mailed to the county judges under paragraph (2) of this subsection no later than 20 days before the deadline to file public comment.(4) For TPDES permits, the text of the notice shall include:(A) everything that is required by §39.411(b)(1) - (3), (5) - (7), (9), and (11) and (c)(2) - (6) of this title; (B) a general description of the location of each existing or proposed discharge point and the name of the receiving water; and(C) for applications concerning the disposal of sludge:(i) the use and disposal practices;(ii) the location of the sludge treatment works treating domestic sewage sludge; and(iii) the use and disposal sites known at the time of permit application.(5) Mailed notice to adjacent or downstream landowners is not required for:(A) an application to renew a permit;(B) an application for a new TPDES permit for a discharge authorized by an existing state permit issued before September 14, 1998 for which the application does not propose any term or condition that would constitute a major amendment to the state permit under §305.62 of this title; or(C) an application for a new permit or major amendment to a TPDES permit that authorizes the discharges from a municipal separate storm sewer system.(6) For permits listed in paragraph (5)(C) of this subsection, the executive director will require the applicant to post a copy of the notice of application and preliminary decision. The notice must be posted on or before the first day of published newspaper notice and must remain posted until the commission has taken final action on the application. The notice must be posted at a place convenient and readily accessible to the public in the administrative offices of the political subdivision in the county in which the MS4 or discharge is located.(d) Notice of application and preliminary decision for certain TPDES permits. For a new TPDES permit for which the discharge is authorized by an existing state permit issued before September 14, 1998, the following shall apply:(1) If the application does not propose any term or condition that would constitute a major amendment to the state permit under §305.62 of this title, the following mailed and published notice is required.(A) The applicant shall publish notice of the application and preliminary decision at least once in a newspaper regularly published or circulated within each county where the proposed facility or discharge is located and in each county affected by the discharge. The executive director shall provide to the chief clerk a list of the appropriate counties, and the chief clerk shall provide the list to the applicant.(B) The chief clerk shall mail notice of the application and preliminary decision, providing an opportunity to submit public comments, to request a public meeting, or to request a public hearing to those listed in §39.413 of this title.(C) The notice must set a deadline to file public comment, or to request a public meeting, with the chief clerk that is at least 30 days after newspaper publication.(D) The text of the notice shall include:(i) everything that is required by §39.411(b)(1) - (3), (5) - (7), (9), and (11) and (c)(2) - (6) of this title;(ii) a general description of the location of each existing or proposed discharge point and the name of the receiving water; and(iii) for applications concerning the disposal of sludge:(I) the use and disposal practices;(II) the location of the sludge treatment works treating domestic sewage sludge; and(III) the use and disposal sites known at the time of permit application.(2) If the application proposes any term or condition that would constitute a major amendment to the state permit under §305.62 of this title, the applicant must follow the notice requirements of subsection (b) of this section.(e) Notice for other types of applications. Except as required by subsections (a), (b), and (c) of this section, the following notice is required for certain applications.(1) For an application for a minor amendment to a permit other than a TPDES permit, or for an application for a minor modification of a TPDES permit, under Chapter 305, Subchapter D of this title (relating to Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits), the chief clerk shall mail notice, that the executive director has determined the application is technically complete and has prepared a draft permit, to the mayor and health authorities for the city or town, and to the county judge and health authorities for the county in which the waste will be discharged. The notice shall state the deadline to file public comment, which shall be no earlier than ten days after mailing notice.(2) For an application for a renewal of a confined animal feeding operation permit which was issued between July 1, 1974, and December 31, 1977, for which the applicant does not propose to discharge into or adjacent to water in the state and does not seek to change materially the pattern or place of disposal, no notice is required.(3) For an application for a minor amendment to a TPDES permit under Chapter 305, Subchapter D of this title, the following requirements apply.(A) The chief clerk shall mail notice of the application and preliminary decision, providing an opportunity to submit public comments and to request a public meeting to:(i) the mayor and health authorities of the city or town in which the facility is or will be located or in which pollutants are or will be discharged;(ii) the county judge and health authorities of the county in which the facility is or will be located or in which pollutants are or will be discharged;(iii) if applicable, state and federal agencies for which notice is required in 40 Code of Federal Regulations (CFR) §124.10(c); (iv) if applicable, persons on a mailing list developed and maintained according to 40 CFR §124.10(c)(1)(ix);(v) the applicant;(vi) persons on a relevant mailing list kept under §39.407 of this title (relating to Mailing Lists); and(vii) any other person the executive director or chief clerk may elect to include.(B) For TPDES major facility permits as designated by the United States Environmental Protection Agency on an annual basis, notice shall be published in the Texas Register.(C) The text shall meet the requirements in §39.411(b)(1) - (4)(A), (6), (7), (9), and (11) and (c)(4) - (6) of this title.(D) The notice shall provide at least a 30-day public comment period.(E) The executive director shall prepare a response to all relevant and material or significant public comments received by the commission under §55.152 of this title (relating to Public Comment Period).(f) Notice of contested case hearing.(1) This subsection applies if an application is referred to the State Office of Administrative Hearings for a contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings).(2) Not less than 30 days before the hearing, the applicant shall publish notice at least once in a newspaper regularly published or circulated in each county where, by virtue of the county's geographical relation to the subject matter of the hearing, a person may reasonably believe persons reside who may be affected by the action that may be taken as a result of the hearing. The executive director shall provide to the chief clerk a list of the appropriate counties.(3) Not less than 30 days before the hearing, the chief clerk shall mail notice to the persons listed in §39.413 of this title, except that mailed notice to adjacent or downstream landowners is not required for an application to renew a permit.(4) For TPDES permits, the text of notice shall include:(A) everything that is required by §39.411(d)(1) and (2) of this title;(B) a general description of the location of each existing or proposed discharge point and the name of the receiving water; and(C) for applications concerning the disposal of sludge:(i) the use and disposal practices;(ii) the location of the sludge treatment works treating domestic sewage sludge; and(iii) the use and disposal sites known at the time of permit application.(g) Notice for discharges with a thermal component. For requests for a discharge with a thermal component filed pursuant to Clean Water Act, §316(a), 40 CFR Part 124, Subsection D, §124.57(a), public notice, which is in effect as of the date of TPDES program authorization, as amended, is adopted by reference. A copy of 40 CFR Part 124 is available for inspection at the agency's library located at the commission's central office located at 12100 Park 35 Circle, Building A, Austin.</content><note type="source"><p>Source Note: The provisions of this §39.551 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective August 29, 2001, 26 TexReg 6301; amended to be effective December 31, 2009, 34 TexReg 9450; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scJ/s39.553"><num value="39.553">§39.553</num><heading>Water Quality Management Plan Updates</heading><content>(a) Applicability. This section applies to Water Quality Management Plan (WQMP) Updates.(b) Notice of WQMP updates.(1) The chief clerk shall publish notice of the WQMP update in the Texas Register.(2) The chief clerk shall mail the notice of the WQMP update to persons known to the commission to be interested in the WQMP update, and to persons requesting notices of the WQMP identified on mailing lists maintained by the chief clerk, in accordance with §39.407 of this title (relating to Mailing Lists).(3) Section 39.411 of this title (relating to Text of Public Notice) does not apply to WQMP updates. However, the notice of the WQMP update shall:(A) include the name and address of the agency;(B) provide an opportunity to submit written comments on the proposed WQMP update;(C) describe the public comment procedures and the time and place of any public meeting; and(D) include the name, address, and telephone number of an agency contact person from whom interested persons may obtain information.(4) The notice shall provide at least a 30-day public comment period.(5) Any public meeting shall be held and conducted in accordance with the requirements and procedures of §55.156 of this title (relating to Public Comment Processing).(c) The executive director shall prepare a response to all significant public comments received by the commission before the end of the comment period. The executive director may revise the WQMP update based on public comment, if appropriate.(d) As described in §50.133 of this title (relating to Executive Director Action on Application or WQMP Update), the executive director may certify the WQMP update.(e) After the executive director certifies a WQMP update, the chief clerk shall mail a copy of the Response to Comments and certified WQMP update to all persons who submitted timely comments.</content><note type="source"><p>Source Note: The provisions of this §39.553 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c39/scK"><num value="K">SUBCHAPTER K</num><heading>PUBLIC NOTICE OF AIR QUALITY PERMIT APPLICATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c39/scK/s39.601"><num value="39.601">§39.601</num><heading>Applicability</heading><content>Air quality permit applications or registrations are subject to this subchapter.</content><note type="source"><p>Source Note: The provisions of this §39.601 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective May 14, 2020, 45 TexReg 3067; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scK/s39.602"><num value="39.602">§39.602</num><heading>Mailed Notice</heading><content>(a) When this chapter requires notice for air quality permit applications, the Office of the Chief Clerk (chief clerk) shall mail notice to:(1) the applicant;(2) persons on a relevant mailing list kept under §39.407 of this title (relating to Mailing Lists);(3) persons who filed public comment or hearing requests on or before the deadline for filing public comment or hearing requests; and(4) any other person the executive director or chief clerk may elect to include.(b) When Notice of Receipt of Application and Intent to Obtain Permit is required, mailed notice shall be sent to the state senator and representative who represent the area in which the facility is or will be located.(c) For applications filed on or after September 1, 2015, the executive director shall provide written notification of the draft permit to the state senator and state representative who represent the area where the facility which is the subject of the application is or will be located at least 30 days prior to the chief clerk's mailing of the executive director's preliminary decision and Notice of Application and Preliminary Decision.(d) When a public meeting is held under §55.154 of this title (relating to Public Meetings), notice shall be mailed by the chief clerk at least 30 calendar days prior to the date of the public meeting, for permit applications that the executive director determines are administratively complete on or after May 1, 2022. The requirements of §39.426 of this title (relating to Alternative Language Requirements) shall be met, when applicable.</content><note type="source"><p>Source Note: The provisions of this §39.602 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective December 31, 2015, 40 TexReg 9644; amended to be effective September 16, 2021, 46 TexReg 5784.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scK/s39.603"><num value="39.603">§39.603</num><heading>Newspaper Notice</heading><content>(a) Notice of Receipt of Application and Intent to Obtain Permit (NORI) under §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit) is required to be published no later than 30 days after the executive director declares an application administratively complete. This notice must contain the text as required by §39.411(e) of this title (relating to Text of Public Notice). This notice is not required for Plant-wide Applicability Limit permit applications.(b) Notice of Application and Preliminary Decision (NAPD) under §39.419 of this title (relating to Notice of Application and Preliminary Decision) is required to be published within 33 days after the chief clerk has mailed the preliminary decision concurrently with the NAPD to the applicant. This notice must contain the text as required by §39.411(f) of this title.(c) Owners and operators who submit initial registration applications for authorization to construct and operate a concrete batch plant under the Air Quality Standard Permit for Concrete Batch Plants adopted by the commission under Chapter 116, Subchapter F of this title (relating to Standard Permits) shall publish a consolidated NORI under §39.418 of this title and a NAPD under §39.419 of this title no later than 30 days after the chief clerk has mailed the preliminary decision concurrently with the consolidated NORI and NAPD to the registrant. This notice must contain the text as required by §39.411(f) of this title.(d) Owners and operators who submit applications that are declared administratively and technically complete and for which a draft permit is prepared by the executive director within 15 days of receipt of the application shall publish a consolidated NORI under §39.418 of this title and a NAPD under §39.419 of this title no later than 30 days after the executive director notifies the applicant of the declaration of administrative completeness and the chief clerk has mailed the preliminary decision concurrently with the consolidated NORI and NAPD to the applicant. This notice must contain the text as required by §39.411(e) of this title.(e) General newspaper notice. Unless otherwise specified, when this chapter requires published notice of an air quality permit application or registration, the applicant or registrant shall publish notice in a newspaper of general circulation in the municipality in which the facility is located or is proposed to be located or in the municipality nearest to the location or proposed location of the facility, as follows:(1) One notice must be published in the public notice section of the newspaper and must comply with §39.411(e) - (g) of this title.(2) Another notice with a total size of at least six column inches, with a vertical dimension of at least three inches and a horizontal dimension of at least two column widths, or a size of at least 12 square inches, must be published in a prominent location elsewhere in the same issue of the newspaper. This notice must contain the following information:(A) permit application or registration number;(B) company name;(C) type of facility;(D) description of the location of the facility; and(E) a note that additional information is in the public notice section of the same issue.(f) Alternative publication procedures for small businesses. (1) The applicant or registrant does not have to comply with subsection (e)(2) of this section if all of the following conditions are met:(A) the applicant or registrant and source meets the definition of a small business stationary source in Texas Water Code, §5.135 including, but not limited to, those which:(i) are not a major stationary source for federal air quality permitting;(ii) do not emit 50 tons or more per year of any regulated air pollutant;(iii) emit less than 75 tons per year of all regulated air pollutants combined; and(iv) are owned or operated by a person that employs 100 or fewer individuals; and(B) if the applicant's or registrant's site meets the emission limits in §106.4(a) of this title (relating to Requirements for Permitting by Rule) it will be considered to not have a significant effect on air quality.(2) The executive director may post information regarding pending air permit applications on its website, such as the permit number, company name, project type, facility type, nearest city, county, date public notice authorized, information on comment periods, and information on how to contact the agency for further information.(g) If an air application or registration is referred to State Office of Administrative Hearings for a contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings), the applicant or registrant shall publish notice once in a newspaper as described in subsection (e) of this section, containing the information under §39.411(h) of this title. This notice must be published and affidavits filed with the chief clerk no later than 30 days before the scheduled date of the hearing.</content><note type="source"><p>Source Note: The provisions of this §39.603 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective June 12, 2002, 27 TexReg 4948; amended to be effective November 30, 2005, 30 TexReg 7877; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective December 29, 2016, 41 TexReg 10334; amended to be effective May 31, 2018, 43 TexReg 3379; amended to be effective May 14, 2020, 45 TexReg 3067; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scK/s39.604"><num value="39.604">§39.604</num><heading>Sign-Posting</heading><content>(a) At the applicant's expense, a sign or signs must be placed at the site of the existing or proposed facility declaring the filing of an application for a permit and stating the manner in which the commission may be contacted for further information. Such signs must be provided by the applicant and must substantially meet the following requirements:(1) Signs must consist of dark lettering on a white background and must be no smaller than 18 inches by 28 inches and all lettering must be no less than 1-1/2 inches in size and block printed capital lettering;(2) Signs must be headed by the words listed in the following subparagraph:(A) "PROPOSED AIR QUALITY PERMIT" for new permits and permit amendments; or(B) "PROPOSED RENEWAL OF AIR QUALITY PERMIT" for permit renewals.(3) Signs must include the words "APPLICATION NO." and the number of the permit application. More than one application number may be included on the signs if the respective public comment periods coincide;(4) Signs must include the words "for further information contact";(5) Signs must include the words "Texas Commission on Environmental Quality" and the address of the appropriate commission regional office;(6) Signs must include the telephone number of the appropriate commission office;(b) The sign or signs must be in place by the date of publication of the Notice of Receipt of Application and Intent to Obtain Permit and must remain in place and legible continuously throughout the entirety of all comment periods on the permit application. The applicant shall provide a verification that the sign posting was conducted according to this section.(c) Each sign placed at the site must be located within ten feet of every property line paralleling a public highway, street, or road. Signs must be visible from the street and spaced at not more than 1,500-foot intervals. A minimum of one sign but no more than three signs must be required along any property line paralleling a public highway, street, or road. The executive director may approve variations from these requirements if it is determined that alternative sign posting plans proposed by the applicant are more effective in providing notice to the public. This section's sign requirements do not apply to properties under the same ownership that are noncontiguous or separated by intervening public highway, street, or road, unless directly involved by the permit application.(d) The executive director may approve variations from the requirements of this subsection if the applicant has demonstrated that it is not practical to comply with the specific requirements of this subsection and alternative sign posting plans proposed by the applicant are at least as effective in providing notice to the public. The approval from the executive director under this subsection must be received before posting signs for purposes of satisfying the requirements of this section.(e) Alternative language sign posting is required whenever alternative language newspaper notice would be required under §39.426 of this title (relating to Alternative Language Requirements). The applicant shall post additional signs in each alternative language in which the bilingual education program is taught. The alternative language signs must be posted adjacent to each English language sign required in this section. The alternative language sign posting requirements of this subsection must be satisfied without regard to whether alternative language newspaper notice is waived under §39.426 of this title. The alternative language signs must meet all other requirements of this section.</content><note type="source"><p>Source Note: The provisions of this §39.604 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective June 12, 2002, 27 TexReg 4948; amended to be effective November 30, 2005, 30 TexReg 7877; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective September 16, 2021, 46 TexReg 5784; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scK/s39.605"><num value="39.605">§39.605</num><heading>Notice to Affected Agencies</heading><content>In addition to the requirements in §39.405(f)(3) of this title (relating to General Notice Provisions):(1) when newspaper notices are published under this section, the applicant shall furnish a copy of the notices and affidavit to:(A) the EPA regional administrator in Dallas;(B) all local air pollution control agencies with jurisdiction in the county in which the construction is to occur;(C) the air pollution control agency of any nearby state in which air quality may be adversely affected by the emissions from the new or modified facility; and(D) for a Prevention of Significant Deterioration or Nonattainment permit under Chapter 116, Subchapter B of this title (relating to New Source Review Permits), the chief executives of the city and county where the source would be located, and any State or Federal Land Manager, or Indian Governing Body whose lands may be affected by emissions from the source or modification;(2) when sign posting is required under this section, the applicant shall furnish a copy of sign posting verification, within 10 business days after the end of the comment period associated with the notice under §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit), to:(A) the chief clerk;(B) the executive director; and(C) those listed in paragraph (1)(A) - (C) of this section; and(3) when alternative language waiver verification is required under this section, the applicant shall furnish a copy to those listed in paragraph (2)(A) - (C) of this section.</content><note type="source"><p>Source Note: The provisions of this §39.605 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scK/s39.606"><num value="39.606">§39.606</num><heading>Contested Case Hearings and Public Meetings</heading><content>(a) Applicability. This section is only applicable to air quality permit applications as specified in Subchapters H and K of Chapter 39 (Public Notice). (b) A contested case hearing may be requested for the following types of air quality permit applications:(1) air quality permit applications and for permit amendment applications subject to the requirements for Prevention of Significant Deterioration and Nonattainment permits in Chapter 116, Subchapter B of this title (relating to New Source Review Permits);(2) air quality permit applications and for permit amendment applications subject to the requirements of Chapter 116, Subchapter E of this title (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(G), 40 CFR Part 63);(3) for registrations for concrete batch plants under the Air Quality Standard Permit for Concrete Batch Plants adopted by the commission under Chapter 116, Subchapter F of this title (relating to Standard Permits);(4) air quality permit applications and for permit amendment applications issued under Chapter 116, Subchapter G of this title (relating to Flexible Permits);(5) all other permit applications subject to the requirements of Chapter 116, Subchapter B (relating to New Source Review Permits); and(6) applications for renewals of air quality permit applications subject to Chapter 116, Subchapter D of this title (relating to Permit Renewals).(c) A notice and comment hearing may be requested for the following types of air quality permit applications:(1) a Multiple Plant Permit under Chapter 116, Subchapter J of this title (relating to Multiple Plant Permits); (2) a permit under Chapter 116, Subchapter L of this title (relating to Permits for Specific Designated Facilities); and(3) air quality permit applications subject to the requirements of Chapter 116, Subchapter C of this title (relating to Plant-wide Applicability Limits).(d) For a request for a contested case hearing to be considered timely it must be received by:(1) for renewals of air quality permits that would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted and the application does not involve a facility for which the applicant's compliance history is in the lowest classification under Texas Water Code, §5.753 and §5.754 and the commission's rules in Chapter 60 of this title (relating to Compliance History, by the end of the 15-day comment period following the last publication of Notice of Receipt of Application and Intent to Obtain Permit; (2) for initial registrations for concrete batch plants under the Air Quality Standard Permit for Concrete Batch Plants adopted by the commission under Chapter 116, Subchapter F of this title (relating to Standard Permits) and for new air quality permit applications and for permit amendment applications issued under Chapter 116, Subchapters B and G of this title (relating to New Source Review Permits and Flexible Permits), for which the executive director has declared the application administratively and technically complete and prepared a draft permit, within 15 days of receipt of the application:(A) for applications received before March 1, 2026:(i) a request for a contested case hearing must be received by the commission before the close of the comment period provided in response to the last publication of the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision in §39.603(c) of this title (relating to Newspaper Notice);(ii) if no hearing requests are received before the close of the comment period provided in response to the last publication of the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision, there is no further opportunity to request a contested case hearing; and(iii) if any hearing requests are received before the close of the comment period provided in response to the last publication of the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision, the opportunity to file a request for a contested case hearing is extended to 30 days after the mailing of the executive director's response to comments;(B) for applications received on or after March 1, 2026:(i) a request for a contested case hearing must be received by the commission before the close of the comment period provided in response to the last publication of the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision;(ii) if no hearing requests are received before the close of the comment period provided in response to the last publication of the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision there is no further opportunity to request a contested case hearing unless a public meeting is held on the application;(iii) if a public meeting is held on the application, the end of the comment period and opportunity to request a contested case hearing will be extended for at least 36 hours following the end of the public meeting; and(iv) if any hearing requests are received before the close of the comment period provided in response to the last publication of the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision or the extended comment period following a public meeting, the opportunity to file a request for a contested case hearing is extended to 30 days after the mailing of the executive director's response to comments;(3) for all air quality permit applications and for permit amendment applications subject to the requirements for Prevention of Significant Deterioration and Nonattainment permits in Chapter 116, Subchapter B of this title, by the end of the comment period or within 30 days after the mailing of the executive director's response to comments;(4) for all air quality permit applications and for permit amendment applications subject to the requirements of Chapter 116, Subchapter E of this title, by the end of the comment period or within 30 days after the mailing of the executive director's response to comments;(5) for all other applicable air quality permit applications: (A) a request for a contested case hearing must be received by the commission before the close of the 30-day comment period provided in response to the last publication of Notice of Receipt of Application and Intent to Obtain Permit;(B) if no hearing requests are received by the end of the 30-day comment period following the last publication of Notice of Receipt of Application and Intent to Obtain Permit, there is no further opportunity to request a contested case hearing;(C) if any hearing requests are received before the close of the 30-day comment period following the last publication of Notice of Receipt of Application and Intent to Obtain Permit, the opportunity to file a request for a contested case hearing is extended to 30 days after the mailing of the executive director's response to comments.(e) Requests for contested case hearings must be timely, in writing, and must include the following information:(1) the requester's location relative to the proposed facility or activity;(2) a description of how the requester will be adversely affected by the proposed facility or activity in a manner not common to the general public, including a description of the requester's uses of property which may be impacted by the proposed facility or activity; and(3) the form requirements of Chapter 55 of this title.(f) Only relevant and material issues raised during the comment period can be considered if a contested case hearing request is granted.(g) For applications for a concrete batch plant authorized by the Air Quality Standard Permit for Concrete Batch Plants adopted by the commission under Chapter 116, Subchapter F of this title, only those persons actually residing within 440 yards of the proposed plant may request a contested case hearing as a person who may be affected.(h) The executive director shall hold a public meeting on permit applications listed in (b)(1)- (2) of this section if requested by a member of the legislature who represents the general area where the facility is to be located, if there is substantial public interest in the proposed activity, or if requested by any interested person.(i) The executive director may hold a public meeting on permit applications listed in (b)(3) - (5) of this section if requested by a member of the legislature who represents the general area where the facility is to be located or if there is substantial public interest in the proposed activity.</content><note type="source"><p>Source Note: The provisions of this §39.606 adopted to be effective February 18, 2026, 51 TexReg 911.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c39/scL"><num value="L">SUBCHAPTER L</num><heading>PUBLIC NOTICE OF INJECTION WELL AND OTHER SPECIFIC APPLICATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c39/scL/s39.651"><num value="39.651">§39.651</num><heading>Application for Injection Well Permit</heading><content>(a) Applicability. This subchapter applies to applications for injection well permits.(b) Preapplication local review committee process. If an applicant decides to participate in a local review committee process under Texas Health and Safety Code, §361.063, the applicant shall submit a notice of intent to file an application to the executive director, setting forth the proposed location and type of facility. The applicant shall mail notice to the county judge of the county in which the facility is to be located. In addition, if the proposed facility is to be located in a municipality or the extraterritorial jurisdiction of a municipality, a copy of the notice must be mailed to the mayor of the municipality.(c) Notice of Receipt of Application and Intent to Obtain Permit.(1) On the executive director's receipt of an application, or notice of intent to file an application, the Office of the Chief Clerk (chief clerk) shall mail notice to the state senator and representative who represent the area in which the facility is or will be located.(2) After the executive director determines that the application is administratively complete, notice must be given as required by §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit). This notice must contain the text as required by §39.411(b)(1) - (9) and (11) of this title (relating to Text of Public Notice). Notice under §39.418 of this title will satisfy the notice of receipt of application required by §281.17(d) of this title (relating to Notice of Receipt of Application and Declaration of Administrative Completeness).(3) After the executive director determines that the application is administratively complete, in addition to the requirements of §39.418 of this title, notice must be given to the School Land Board, if the application will affect lands dedicated to the permanent school fund. The notice must be in the form required by Texas Water Code, §5.115(c).(4) For Notice of Receipt of Application and Intent to Obtain a Permit concerning Class I or Class III underground injection wells, the chief clerk shall also mail notice to:(A) persons who own the property on which the existing or proposed injection well facility is or will be located, if different from the applicant;(B) landowners adjacent to the property on which the existing or proposed injection well facility is or will be located;(C) persons who own mineral rights underlying the existing or proposed injection well facility;(D) persons who own mineral rights underlying the tracts of land adjacent to the property on which the existing or proposed injection well facility is or will be located; and(E) any groundwater conservation district established in the county in which the existing or proposed injection well facility is or will be located.(5) The chief clerk or executive director shall also mail a copy of the application or a summary of its contents to the mayor and health authority of a municipality in whose territorial limits or extraterritorial jurisdiction the solid waste facility is located and to the county judge and the health authority of the county in which the facility is located.(6) For Class I underground injection wells, the published notice must be at least 15 square inches (96.8 square centimeters) with a shortest dimension of at least three inches (7.6 centimeters) and the notice must appear in the section of the newspaper containing state or local news items.(d) Notice of Application and Preliminary Decision. The notice required by §39.419 of this title (relating to Notice of Application and Preliminary Decision) must be published once under §39.405(f)(2) of this title (relating to General Notice Provisions) after the chief clerk has mailed the preliminary decision and the Notice of Application and Preliminary Decision to the applicant. This notice must contain the text as required by §39.411(c)(1) - (6) of this title. In addition to the requirements of §39.419 of this title (relating to Notice of Application and Preliminary Decision) and §39.426 of this title (relating to Alternative Language Requirements), the following requirements apply.(1) The applicant shall publish notice at least once in a newspaper of general circulation in each county that is adjacent or contiguous to each county in which the proposed facility is located. One notice may satisfy the requirements of §39.405(f)(2) of this title and of this subsection, if the newspaper meets the requirements of both rules.(2) For Class I underground injection wells, the published notice must be at least 15 square inches (96.8 square centimeters) with a shortest dimension of at least three inches (7.6 centimeters) and the notice must appear in the section of the newspaper containing state or local news items.(3) The chief clerk shall mail notice to the persons listed in §39.413 of this title (relating to Mailed Notice) and to local governments located in the county of the facility. "Local government" has the meaning as defined in Texas Water Code, Chapter 26.(4) For Notice of Application and Preliminary Decision concerning Class I or Class III underground injection wells, the chief clerk shall also mail notice to:(A) persons who own the property on which the existing or proposed injection well facility is or will be located, if different from the applicant;(B) landowners adjacent to the property on which the existing or proposed injection well facility is or will be located;(C) persons who own mineral rights underlying the existing or proposed injection well facility;(D) persons who own mineral rights underlying the tracts of land adjacent to the property on which the existing or proposed injection well facility is or will be located; and(E) any groundwater conservation district established in the county in which the existing or proposed injection well facility is or will be located.(5) If the application concerns a hazardous waste facility, the applicant shall broadcast notice under §39.503(d)(2) of this title (relating to Application for Industrial or Hazardous Waste Facility Permit).(6) The deadline for public comments on industrial solid waste, Class III, or Class V injection well permit applications will be not less than 30 days after newspaper publication, and for hazardous waste applications, not less than 45 days after newspaper publication.(e) Notice of public meeting.(1) For an application for a new hazardous waste facility, the agency:(A) may hold a public meeting under §55.154 of this title (relating to Public Meetings) in the county in which the facility is proposed to be located to receive public comment concerning the application; but(B) shall hold a public meeting under §55.154 of this title in the county in which the facility is proposed to be located to receive public comment concerning the application:(i) on the request of a member of the legislature who represents the general area in which the facility is proposed to be located; or(ii) if the executive director determines that there is substantial public interest in the proposed facility.(2) For an application for a major amendment to or a Class 3 modification of an existing hazardous waste facility permit, the agency:(A) may hold a public meeting under §55.154 of this title in the county in which the facility is located to receive public comment on the application; but(B) shall hold a public meeting under §55.154 of this title in the county in which the facility is located to receive public comment concerning the application:(i) on the request of a member of the legislature who represents the general area in which the facility is located; or(ii) if the executive director determines that there is substantial public interest in the facility.(3) For purposes of this subsection, "substantial public interest" is demonstrated if a request for a public meeting is filed by:(A) a local governmental entity with jurisdiction over the location in which the facility is located or proposed to be located by formal resolution of the entity's governing body;(B) a council of governments with jurisdiction over the location in which the facility is located or proposed to be located by formal request of either the council's solid waste advisory committee, executive committee, or governing board;(C) a homeowners' or property owners' association formally organized or chartered and having at least ten members located in the general area in which the facility is located or proposed to be located; or(D) a group of ten or more local residents, property owners, or businesses located in the general area in which the facility is located or proposed to be located.(4) A public meeting is not a contested case proceeding under the Administrative Procedure Act. A public meeting held as part of a local review committee process under subsection (b) of this section meets the requirements of this subsection if public notice is provided in accordance with this subsection.(5) The applicant shall publish notice of the public meeting once each week during the three weeks preceding a public meeting under §39.405(f)(2) of this title. The published notice must be at least 15 square inches (96.8 square centimeters) with a shortest dimension of at least three inches (7.6 centimeters).(6) The chief clerk shall mail notice to the persons listed in §39.413 of this title.(f) Notice of contested case hearing.(1) Applicability. This subsection applies if an application is referred to the State Office of Administrative Hearings for a contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings).(2) Newspaper notice.(A) If the application concerns a facility other than a hazardous waste facility, the applicant shall publish notice at least once in a newspaper of general circulation in the county in which the facility is located and in each county and area that is adjacent or contiguous to each county in which the proposed facility is located.(B) For Class I underground injection wells, the published notice must be at least 15 square inches (96.8 square centimeters) with a shortest dimension of at least three inches (7.6 centimeters); and the notice must appear in the section of the newspaper containing state or local news items.(C) If the application concerns a hazardous waste facility, the hearing must include one session held in the county in which the facility is located. The applicant shall publish notice of the hearing once each week during the three weeks preceding the hearing under §39.405(f)(2) of this title. The published notice must be at least 15 square inches (96.8 square centimeters) with a shortest dimension of at least three inches (7.6 centimeters). The notice must appear in the section of the newspaper containing state or local news items. The text of the notice must include the statement that at least one session of the hearing will be held in the county in which the facility is located.(3) Mailed notice.(A) For all applications concerning underground injection wells, the chief clerk shall mail notice to persons listed in §39.413 of this title.(B) For notice of hearings concerning Class I or Class III underground injection wells, the chief clerk shall also mail notice to:(i) persons who own the property on which the existing or proposed injection well facility is or will be located, if different from the applicant;(ii) landowners adjacent to the property on which the existing or proposed injection well facility is or will be located;(iii) persons who own mineral rights underlying the existing or proposed injection well facility;(iv) persons who own mineral rights underlying the tracts of land adjacent to the property on which the existing or proposed injection well facility is or will be located; and(v) any groundwater conservation district established in the county in which the existing or proposed injection well facility is or will be located.(C) If the applicant proposes a new solid waste management facility, the applicant shall mail notice to each residential or business address, not listed under subparagraph (A) of this paragraph, located within 1/2 mile of the facility and to each owner of real property located within 1/2 mile of the facility listed in the real property appraisal records of the appraisal district in which the facility is located. The notice must be mailed to the persons listed as owners in the real property appraisal records on the date the application is determined to be administratively complete. The notice must be mailed no more than 45 days and no less than 30 days before the contested case hearing. Within 30 days after the date of mailing, the applicant shall file with the chief clerk an affidavit certifying compliance with its obligations under this subsection. Filing an affidavit certifying facts that constitute compliance with notice requirements creates a rebuttable presumption of compliance with this subparagraph.(4) Radio broadcast. If the application concerns a hazardous waste facility, the applicant shall broadcast notice under §39.503(d)(2) of this title.(5) Deadline. Notice under paragraphs (2)(A), (3), and (4) of this subsection must be completed at least 30 days before the contested case hearing.(g) Approval. All published notices required by this section must be in a form approved by the executive director prior to publication.(h) Applications for individual Class V injection well permits for aquifer storage and recovery (ASR) projects and aquifer recharge (AR) projects. Notwithstanding the requirements of subsections (c) and (d) of this section, this subsection establishes the public notice requirements for an application for an individual Class V injection well permit application for either an ASR project or an AR project. Issuance of the Notice of Receipt of Application and Intent to Obtain a Permit is not required for an individual Class V injection well permit application for an ASR project or an AR project. The notice required by §39.419 of this title must be published by the applicant once in a newspaper of general circulation in the county in which the injection well will be located after the chief clerk has mailed the preliminary decision and the Notice of Application and Preliminary Decision to the applicant. The chief clerk shall provide notice by first class mail to any groundwater conservation district in which the wells associated with the ASR project or AR project will be located. The chief clerk shall also mail notice to the persons listed in §39.413(7) - (9) of this title. This notice must contain the text as required by §39.411(c)(1) - (6) of this title.</content><note type="source"><p>Source Note: The provisions of this §39.651 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective December 7, 2000, 25 TexReg 11953; amended to be effective November 30, 2005, 30 TexReg 7877; amended to be effective July 19, 2006, 31 TexReg 5646; amended to be effective March 12, 2009, 34 TexReg 1619; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective May 19, 2016, 41 TexReg 3500; amended to be effective May 28, 2020, 45 TexReg 3441; amended to be effective September 16, 2021, 46 TexReg 5784; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scL/s39.653"><num value="39.653">§39.653</num><heading>Application for Production Area Authorization</heading><content>(a) Applicability. This section applies to an application for a production area authorization under Chapter 331 of this title (relating to Underground Injection Control).(b) Notice of Receipt of Application and Intent to Obtain Permit. After the executive director determines that the application is administratively complete, notice shall be given as required by §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit). This notice must contain the text as required by §39.411(b)(1) - (9) and (11) of this title (relating to Text of Public Notice). The chief clerk shall also mail notice to:(1) persons who own the property on which the existing or proposed production area is or will be located, if different from the applicant;(2) landowners adjacent to the property on which the existing or proposed production area is or will be located;(3) persons who own mineral rights underlying the existing or proposed production area;(4) persons who own mineral rights underlying the tracts of land adjacent to the property on which the existing or proposed production area is or will be located; and(5) any groundwater conservation district established in the county in which the existing or proposed production area is or will be located.(c) Notice of Application and Preliminary Decision. The notice required by §39.419 of this title (relating to Notice of Application and Preliminary Decision) shall be published once under §39.405(f)(2) of this title (relating to General Notice Provisions) after the chief clerk has mailed the preliminary decision and the Notice of Application and Preliminary Decision to the applicant. This notice must contain the text as required by §39.411(c)(1) - (6) of this title. The notice shall specify the deadline to file with the chief clerk public comment, which is 30 days after mailing. The chief clerk shall also mail notice to:(1) persons who own the property on which the existing or proposed production area is or will be located, if different from the applicant;(2) landowners adjacent to the property on which the existing or proposed production area is or will be located;(3) persons who own mineral rights underlying the existing or proposed production area;(4) persons who own mineral rights underlying the tracts of land adjacent to the property on which the existing or proposed production area is or will be located; and(5) any groundwater conservation district established in the county in which the existing or proposed production area is or will be located.(d) Notice of contested case hearing.(1) This subsection applies if an application is referred to the State Office of Administrative Hearings for a contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings).(2) The applicant shall publish notice at least once under §39.405(f)(2) of this title.(3) The chief clerk shall mail notice to the persons listed in §39.413 of this title (relating to Mailed Notice).(4) Notice under paragraphs (2) and (3) this subsection shall be completed at least 30 days before the hearing.</content><note type="source"><p>Source Note: The provisions of this §39.653 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective March 12, 2009, 34 TexReg 1619; amended to be effective June 24, 2010, 35 TexReg 5198.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scL/s39.655"><num value="39.655">§39.655</num><heading>Aquifer Exemption</heading><content>(a) Applicability. This section applies to the designation of an exempt aquifer under §331.13 of this title (relating to Exempted Aquifer).(b) Notice of Aquifer Exemption. Notice of Aquifer Exemption shall be published once in a newspaper or newspapers in the same manner as required for the Notice of Application and Preliminary Decision for an injection well permit application associated with the proposed aquifer exemption under §39.651(d) of this title (relating to Application for Injection Well Permit). This notice must contain the text as required by §39.411(c)(1) - (6) of this title (relating to Text of Public Notice). The chief clerk shall mail this notice to the persons who would receive the Notice of Application and Preliminary Decision for an injection well permit application associated with the proposed aquifer exemption under §39.651(d) of this title. The deadline for submitting public comments or requesting a contested case hearing on an aquifer exemption is 30 days after newspaper publication.(c) Notice of Public Meeting on Aquifer Exemption. Notice of a Public Meeting on Aquifer Exemption shall be published in a newspaper or newspapers in the same manner as required for the Notice of Public Meeting for an injection well permit application associated with the proposed aquifer exemption under §39.651(e) of this title. This notice must contain the text as required by §39.411(d) of this title. The chief clerk shall mail this notice to the persons required to receive the Notice of Public Meeting for an injection well permit application associated with the proposed aquifer exemption under §39.651(e) of this title.(d) Notice of Contested Case Hearing on Aquifer Exemption. This section applies if an application to designate an exempt aquifer is referred to the State Office of Administrative Hearings for a contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings). Notice of contested case hearing on Aquifer Exemption shall be published in a newspaper or newspapers in the same manner as required for the notice of contested case hearing for an injection well permit application associated with the proposed aquifer exemption under §39.651(f) of this title. This notice must contain the text as required by §39.423 of this title (relating to Notice of Contested Case Hearing). The chief clerk shall mail this notice to the persons required to receive the Notice of Contested Case Hearing for an injection well permit application associated with the proposed aquifer exemption under §39.651(f) of this title.(e) Combined notice. Notice required under this section may be combined to satisfy other applicable sections of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §39.655 adopted to be effective March 12, 2009, 34 TexReg 1619.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c39/scM"><num value="M">SUBCHAPTER M</num><heading>PUBLIC NOTICE FOR RADIOACTIVE MATERIAL LICENSES</heading><section identifier="/us/state/tx/tac/t30/p1/c39/scM/s39.701"><num value="39.701">§39.701</num><heading>Applicability</heading><content>Any license application under Chapter 336 of this title (relating to Radioactive Substance Rules) is subject to this subchapter and applicable requirements under Subchapter H of this chapter (relating to Applicability and General Provisions).</content><note type="source"><p>Source Note: The provisions of this §39.701 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective September 14, 2000, 25 TexReg 8857.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scM/s39.702"><num value="39.702">§39.702</num><heading>Notice of Declaration of Administrative Completeness</heading><content>When an application for a license, major amendment, or renewal of a license under Chapter 336 of this title (relating to Radioactive Substance Rules) has been declared administratively complete, the chief clerk shall mail notice under this subchapter. The applicant shall publish the notice of declaration of administrative completeness as provided in §39.707 of this title (relating to Published Notice).</content><note type="source"><p>Source Note: The provisions of this §39.702 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective February 28, 2008, 33 TexReg 1563; amended to be effective March 12, 2009, 34 TexReg 1619.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scM/s39.703"><num value="39.703">§39.703</num><heading>Notice of Completion of Technical Review</heading><content>(a) When the executive director has completed the technical review of an application for a license, major amendment, or renewal of a license issued under Chapter 336 of this title (relating to Radioactive Substance Rules), notice must be mailed by the Office of the Chief Clerk and published under this subchapter. The deadline to file public comment, protests, or hearing requests is 30 days after publication.(b) For application for a minor amendment to a license issued under Chapter 336 of this title notice must be mailed by the Office of the Chief Clerk under this subchapter. The deadline to file public comment is ten days after mailing, or ten days after publication in the Texas Register for minor amendments to a license issued under Chapter 336, Subchapter H or M of this title (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste; Licensing of Radioactive Substances Processing and Storage Facilities, respectively).</content><note type="source"><p>Source Note: The provisions of this §39.703 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective September 14, 2000, 25 TexReg 8857; amended to be effective January 8, 2004, 29 TexReg 113; amended to be effective July 21, 2005, 30 TexReg 4125; amended to be effective February 28, 2008, 33 TexReg 1563; amended to be effective March 12, 2009, 34 TexReg 1619.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scM/s39.705"><num value="39.705">§39.705</num><heading>Mailed Notice for Radioactive Material Licenses</heading><content>When notice by mail is required under this subchapter, the chief clerk shall mail notice under only §39.413(2), (3), (8), (9), and (12) of this title (relating to Mailed Notice), and to each owner of property adjacent to the proposed site. For purposes of determining the ownership of property adjacent to the proposed site under this subchapter, the applicant shall provide the chief clerk with the names of the landowners from the county tax rolls that are available no more than 30 days before the date of newspaper publication of the notice.</content><note type="source"><p>Source Note: The provisions of this §39.705 adopted to be effective September 23, 1999, 24 TexReg 8190.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scM/s39.707"><num value="39.707">§39.707</num><heading>Public Notice</heading><content>(a) For applications under Chapter 336, Subchapter F of this title (relating to Licensing of Alternative Methods of Disposal of Radioactive Material), Subchapter G of this title (relating to Decommissioning Standards), Subchapter K of this title (relating to Commercial Disposal of Naturally Occurring Radioactive Material Waste From Public Water Systems), Subchapter L of this title (relating to Licensing of Source Material Recovery and By-Product Material Disposal Facilities), or Subchapter M of this title (relating to Licensing of Radioactive Substances Processing and Storage Facilities), when notice is required to be published under this subchapter, the applicant shall publish notice at least once in a newspaper of largest general circulation in the county in which the facility is located.(b) For applications for a new license, renewal license, or major amendment to a license issued under Chapter 336, Subchapter H of this title (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste), on completion of technical review and preparation of the draft license, the commission shall publish, at the applicant's expense, notice of the draft license and specify the requirements for requesting a contested case hearing by a person affected. The notice must include a statement that the draft license is available for review on the commission's website and that the draft license and application materials are available for review at the offices of the commission and in a public place in the county or counties in which the proposed disposal facility site is located. Notice must be published in a newspaper of general circulation in each county in which the proposed disposal facility site is located.(c) In addition to published notice requirements in subsection (b) of this section, for an initial notice of draft license and opportunity to comment and for any subsequent license amendment of a license under Chapter 336, Subchapter H of this title or Subchapter M of this title, the chief clerk shall publish notice once in the Texas Register.</content><note type="source"><p>Source Note: The provisions of this §39.707 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective September 14, 2000, 25 TexReg 8857; amended to be effective January 8, 2004, 29 TexReg 113; amended to be effective July 21, 2005, 30 TexReg 4125; amended to be effective February 28, 2008, 33 TexReg 1563; amended to be effective March 12, 2009, 34 TexReg 1619; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scM/s39.709"><num value="39.709">§39.709</num><heading>Notice of Contested Case Hearing on Application</heading><content>(a) The requirements of this section apply when an application is referred to the State Office of Administrative Hearings for a contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings).(b) For applications under Chapter 336, Subchapter F of this title (relating to Licensing of Alternative Methods of Disposal of Radioactive Material), Subchapter G of this title (relating to Decommissioning Standards), Subchapter K of this title (relating to Commercial Disposal of Naturally Occurring Radioactive Material Waste From Public Water Systems), or Subchapter L of this title (relating to Licensing of Source Material Recovery and By-product Material Disposal Facilities), notice must be mailed no later than 30 days before the hearing. For applications under Chapter 336, Subchapter H of this title (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste) or Subchapter M of this title (relating to Licensing of Radioactive Substances Processing and Storage Facilities), notice must be mailed no later than 31 days before the hearing.(c) When notice is required under this section, the text of the notice must include the applicable information specified in §39.411(b)(12) and (d) of this title (relating to Text of Public Notice).</content><note type="source"><p>Source Note: The provisions of this §39.709 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective September 14, 2000, 25 TexReg 8857; amended to be effective January 8, 2004, 29 TexReg 113; amended to be effective July 21, 2005, 30 TexReg 4125; amended to be effective February 28, 2008, 33 TexReg 1563; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective May 14, 2020, 45 TexReg 3060.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scM/s39.711"><num value="39.711">§39.711</num><heading>Proof and Certification of Notice</heading><content>(a) Notice shall be mailed by certified mail, return receipt requested. Proof of mailing to the proper address on the return receipt shall be accepted as conclusive evidence of the fact of the mailing.(b) The applicant shall file proof of publication with the chief clerk within 30 days after publication. Filing an affidavit executed by the publisher accompanied by a printed copy of the notice as published creates a rebuttable presumption of compliance with the requirement to publish notice.(c) The applicant shall file proof of posting with the chief clerk within 30 days of posting. Proof of posting may be made by the return affidavit of the sheriff or constable, or, by the affidavit of a credible person made on a copy of the posted notice showing the fact of the posting.</content><note type="source"><p>Source Note: The provisions of this §39.711 adopted to be effective September 23, 1999, 24 TexReg 8190.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scM/s39.713"><num value="39.713">§39.713</num><heading>Public Notification and Public Participation</heading><content>Upon the receipt of a license termination plan or decommissioning plan from the licensee, or a proposal by the licensee for release of a site under §336.607 of this title (relating to Criteria for License Termination under Restricted Conditions) or §336.609 of this title (relating to Alternate Criteria for License Termination), or whenever the commission deems notice to be in the public interest, the commission shall: (1) notify and solicit comments from: (A) local and state governments in the vicinity of the site and any Indian Nation or other indigenous people that have treaty or statutory rights that could be affected by the decommissioning; and (B) the United States Environmental Protection Agency for cases where the licensee proposes to release a site under §336.609 of this title (relating to Alternate Criteria for License Termination); and (2) publish a notice in the Texas Register and in a forum, such as local newspapers, letters to state or local organizations, or other appropriate forum, that is readily accessible to individuals in the vicinity of the site, and solicit comments from affected parties.</content><note type="source"><p>Source Note: The provisions of this §39.713 adopted to be effective September 23, 1999, 24 TexReg 8190.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c39/scN"><num value="N">SUBCHAPTER N</num><heading>PUBLIC NOTICE OF POST-CLOSURE ORDERS</heading><section identifier="/us/state/tx/tac/t30/p1/c39/scN/s39.801"><num value="39.801">§39.801</num><heading>Applicability</heading><content>The requirements of this subchapter apply to applications for a post-closure order, as defined in §335.2 of this title (relating to Permit Required).</content><note type="source"><p>Source Note: The provisions of this §39.801 adopted to be effective January 30, 2003, 28 TexReg 690.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scN/s39.802"><num value="39.802">§39.802</num><heading>Public Comment and Notice</heading><content>(a) Public notice and the opportunity to comment shall be provided:(1) when the agency declares an application for a post-closure order administratively complete;(2) prior to final approval of the proposed post-closure order; and(3) at the time of a proposed decision that remedial action is complete at the facility.(b) The public comment periods described in subsection (a) of this section shall end 30 days after the last publication of the appropriate notice.(c) Public comments for post-closure orders shall be processed under §55.156 of this title (relating to Public Comment Processing).</content><note type="source"><p>Source Note: The provisions of this §39.802 adopted to be effective January 30, 2003, 28 TexReg 690.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scN/s39.803"><num value="39.803">§39.803</num><heading>General Notice Provisions</heading><content>(a) Failure to publish notice. If the chief clerk prepares a newspaper notice that is required by this subchapter and the applicant does not cause the notice to be published within 30 days after the executive director has declared the application administratively complete, has not filed the proposed post-closure order or proposed decision that remedial action is complete with the chief clerk, or fails to submit the copies of notices or affidavit required in subsection (d) of this section, the executive director may cause one of the following actions to occur:(1) the chief clerk may cause the notice to be published and the applicant shall reimburse the agency for the cost of publication; or(2) the executive director may suspend further processing or return the application. If the application is resubmitted within six months of the date of the return of the application, it shall be exempt from any application fee requirements.(b) Electronic mailing lists. The chief clerk may require the applicant to provide necessary mailing lists in electronic form.(c) Mail or hand delivery. Notice by hand delivery may be substituted for mailed notice. Mailing is complete upon deposit of the document, enclosed in a prepaid, properly addressed wrapper, in a post office or official depository of the United States Postal Service. If hand delivery is by courier-receipted delivery, the delivery is complete upon the courier taking possession.(d) Notice and affidavit. When this subchapter requires an applicant to publish notice, the applicant must file a copy of the published notice and a publisher's affidavit with the chief clerk certifying facts that constitute compliance with the requirement. The deadline to file a copy of the published notice, which shows the date of publication and the name of the newspaper, is ten business days after the last date of publication. The deadline to file the affidavit is 30 calendar days after the last date of publication for each notice. Filing an affidavit certifying facts that constitute compliance with notice requirements creates a rebuttable presumption of compliance with the requirement to publish notice. When the chief clerk publishes notice under subsection (a) of this section, the chief clerk shall file a copy of the published notice and a publisher's affidavit.(e) Published notice. When notice is required to be published under §39.802 of this title (relating to Public Comment and Notice), the owner or operator shall publish notice in the newspaper of largest general circulation that is published in the county in which the facility is located or proposed to be located. If a newspaper is not published in the county, the notice must be published in a newspaper of general circulation in the county in which the facility is located or proposed to be located. The requirements of this subsection may be satisfied by one publication if the newspaper is both published in the county and is the newspaper of largest general circulation in the county.(f) Copy availability. The owner or operator shall make a copy of the application, preferred response action and/or the proposed post-closure order, or proposed decision that remedial action is complete available for review and copying at a public place in the county in which the facility is located or proposed to be located. An electronic copy will be posted on the commission's website in accordance with §39.405(l) of this title. The copy of the document compelling public notice shall comply with the following: (1) A copy of the application, proposed post-closure order, or proposed decision that remedial action is complete must be available for review and copying beginning on the first day of newspaper publication of notice of receipt of application and intent to obtain post-closure order and remain available for the publication's designated comment period.(2) A copy of the complete application, proposed post-closure order, or proposed decision that remedial action is complete (including any subsequent revisions to the application) must be available for review and copying beginning on the first day of newspaper publication required by this section and remain available until the commission has taken action on the application or the commission refers issues to State Office of Administrative Hearings.</content><note type="source"><p>Source Note: The provisions of this §39.803 adopted to be effective January 30, 2003, 28 TexReg 690; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scN/s39.804"><num value="39.804">§39.804</num><heading>Text of Public Notice</heading><content>(a) Applicants shall use notice text provided and approved by the agency. The executive director may approve changes to notice text before notice is given.(b) When notice of receipt of application and intent to obtain post-closure order, notice of proposed order, or notice of proposed decision that remedial action is complete, by publication or by mail as required by this subchapter, the text of the notice must include the following information:(1) the name, address, and telephone number of an agency contact from whom interested persons may obtain further information;(2) the name, address, and telephone number of the applicant and a description of the manner in which a person may contact the applicant for further information;(3) a brief description of the location and nature of the proposed activity;(4) a brief description of public comment procedures including a statement that the executive director will respond to comments raising issues that are relevant and material or otherwise significant;(5) the application, solid waste registration number, or post-closure order number;(6) if applicable, a statement that the application or requested action is subject to the Texas Coastal Management Program (CMP) and must be consistent with the CMP goals and policies;(7) the location, at a public place in the county in which the facility is located or proposed to be located, at which a copy of the application is available for review and copying;(8) a description of the procedure by which a person may be placed on a mailing list in order to receive additional information about the application; (9) any additional information required by the executive director or needed to satisfy public notice requirements of any federally-authorized program; and(10) information that an electronic copy will be posted on the commission's website in accordance with §39.405(l) of this title.</content><note type="source"><p>Source Note: The provisions of this §39.804 adopted to be effective January 30, 2003, 28 TexReg 690; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scN/s39.805"><num value="39.805">§39.805</num><heading>Mailed Notice</heading><content>When this subchapter requires mailed notice, the chief clerk shall mail notice to: (1) the landowners named on the application map, supplemental map, or the sheet attached to the application map or supplemental map; (2) the mayor and health authorities of the city or town in which the facility is or will be located or in which waste is or will be disposed of; (3) the county judge and health authorities of the county in which the facility is or will be located or in which waste is or will be disposed of; (4) the Texas Department of Health; (5) the Texas Parks and Wildlife Department; (6) the Texas Railroad Commission; (7) if applicable, local, state, and federal agencies for which notice is required in 40 Code of Federal Regulations (CFR) §124.10(c), as amended and adopted in the May 2, 1989 issue of the Federal Register (54 FR 18786); (8) if applicable, persons on a mailing list developed and maintained in accordance with 40 CFR §124.10(c)(1)(ix); (9) the owner or operator of the facility; (10) persons on a relevant mailing list kept under §39.407 of this title (relating to Mailing Lists); (11) any other person the executive director or chief clerk may elect to include; (12) if applicable, the secretary of the Coastal Coordination Council; (13) persons who filed public comment or hearing requests on or before the deadline for filing public comment or hearing requests; (14) the state senator and representative who represent the general area in which the facility is located or proposed to be located; and (15) the river authority in which the facility is located or proposed to be located if the document compelling public notice and comment is under Texas Water Code, Chapter 26.</content><note type="source"><p>Source Note: The provisions of this §39.805 adopted to be effective January 30, 2003, 28 TexReg 690.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scN/s39.806"><num value="39.806">§39.806</num><heading>Notice of Receipt of an Application and Intent to Obtain a Post-Closure Order</heading><content>(a) When the executive director determines that an application is administratively complete, the chief clerk shall mail the notice of receipt of an application and intent to obtain a post-closure order to the applicant.(b) Not later than 30 days after the executive director declares an application administratively complete, the notice of receipt of an application and intent to obtain a post-closure order:(1) the applicant shall publish the notice of receipt of an application and intent to obtain a post-closure order once under §39.803 of this title (relating to General Notice Provisions);(2) the chief clerk shall mail the notice of receipt of an application and intent to obtain a post-closure order to those listed in §39.805 of this title (relating to Mailed Notice); and(3) the notice must include the information required by §39.804 of this title (relating to Text of Public Notice).</content><note type="source"><p>Source Note: The provisions of this §39.806 adopted to be effective January 30, 2003, 28 TexReg 690.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scN/s39.807"><num value="39.807">§39.807</num><heading>Notice of Proposed Post-Closure Order and Preliminary Decision</heading><content>(a) Prior to final approval of the proposed order, the executive director shall file the proposed post-closure order with the chief clerk.(b) Not later than 30 days after the executive director files the proposed post-closure order with the chief clerk:(1) the applicant shall publish the notice of the proposed post-closure order and preliminary decision once under §39.803 of this title (relating to General Notice Provisions);(2) the chief clerk shall mail the notice of a proposed post-closure order and preliminary decision to those listed in §39.805 of this title (relating to Mailed Notice); and(3) the notice of a proposed post-closure order must include the applicable information required by §39.804 of this title (relating to Text of Public Notice), including the assumptions the response action was based on, in particular those related to land use characterization.</content><note type="source"><p>Source Note: The provisions of this §39.807 adopted to be effective January 30, 2003, 28 TexReg 690; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scN/s39.808"><num value="39.808">§39.808</num><heading>Notice of a Proposed Decision that Remedial Action is Complete</heading><content>(a) Prior to the executive director's determination that the remedial action is complete, the executive director shall file the proposed decision that remedial action is complete with the chief clerk.(b) Not later than 30 days after the executive director files the proposed decision that remedial action is complete with the chief clerk:(1) the applicant shall publish notice of the proposed decision that remedial action is complete once under §39.803 of this title (relating to General Notice Provisions);(2) the chief clerk shall mail the notice of the proposed decision that remedial action is complete to those listed in §39.805 of this title (relating to Mailed Notice); and(3) the notice of the proposed decision that remedial action is complete must include the applicable information required by §39.804 of this title (relating to Text of Public Notice).</content><note type="source"><p>Source Note: The provisions of this §39.808 adopted to be effective January 30, 2003, 28 TexReg 690; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scN/s39.809"><num value="39.809">§39.809</num><heading>Notice for Amendments to Post-Closure Orders</heading><content>(a) When the executive director determines that an application for an amendment to a post-closure order is technically complete, the chief clerk shall mail the notice of application and preliminary decision to the applicant.(b) Not later than 30 days after the executive director declares an application technically complete:(1) the applicant shall publish the notice of application and preliminary decision once under §39.803 of this title (relating to General Notice Provisions);(2) the chief clerk shall mail the notice of application and preliminary decision to those listed in §39.805 of this title (relating to Mailed Notice); and(3) the notice must include the information required by §39.804 of this title (relating to Text of Public Notice).</content><note type="source"><p>Source Note: The provisions of this §39.809 adopted to be effective January 30, 2003, 28 TexReg 690; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scN/s39.810"><num value="39.810">§39.810</num><heading>Notice of Post-Closure Order Contested Case Hearing</heading><content>For any post-closure order contested case hearing, the chief clerk shall mail notice to the statutory parties, applicant, and persons who have requested to be on a mailing list for the pleadings in the action no less than 13 days before a hearing in accordance with the Administrative Procedures Act, §2001.052. In addition, public notice and opportunity for comment before the commission relating to a proposed action shall be given under Chapter 10 of this title (relating to Commission Meetings).</content><note type="source"><p>Source Note: The provisions of this §39.810 adopted to be effective January 30, 2003, 28 TexReg 690; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c39/scO"><num value="O">SUBCHAPTER O</num><heading>PUBLIC NOTICE FOR MARINE SEAWATER DESALINATION PROJECTS</heading><section identifier="/us/state/tx/tac/t30/p1/c39/scO/s39.901"><num value="39.901">§39.901</num><heading>Applicability</heading><content>The provisions of this subchapter establish the public notice process for treated marine seawater discharge permits and off-shore discharge permits from marine seawater desalination projects under Texas Water Code, Chapter 18. For the purposes of this subchapter, the terms "Treated marine seawater," "Off-shore discharges," and "Marine seawater desalination project" have the same meaning as the definitions of these terms found in §318.2 of this title (relating to Definitions).</content><note type="source"><p>Source Note: The provisions of this §39.901 adopted to be effective December 8, 2016, 41 TexReg 9531.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scO/s39.902"><num value="39.902">§39.902</num><heading>Public Notice and Comment for Treated Marine Seawater Discharges</heading><content>(a) Filing the administrative record. After the technical review is completed, the executive director shall file the application, draft permit, technical summary, and draft notice of application and preliminary decision with the chief clerk.(b) Notice text. The notice of application and preliminary decision must contain the following information:(1) the permit number;(2) the name, address, and telephone number of the applicant;(3) a brief description of the location and nature of the proposed marine seawater desalination project, including the location of each outfall and the total quantity of water proposed to be discharged by the facility;(4) a summary of the executive director's preliminary decision and whether the executive director has prepared a draft permit;(5) if applicable, a statement that the application is subject to the Coastal Management Program and must be consistent with the Coastal Management Program goals and policies;(6) the website address where the administratively and technically complete application, the draft permit, and the technical summary are posted for public review;(7) a brief description of public comment procedures, including:(A) a description of the manner in which comments regarding the executive director's preliminary decision may be submitted;(B) the deadline to file comments; and(C) the deadline to request a public meeting or a contested case hearing;(8) a statement that the executive director will respond to comments raising issues that are timely received and are relevant, material, or otherwise significant;(9) a brief description of procedures by which the public may request a public meeting and a statement that a public meeting will be held by the executive director if requested by a member of the legislature who represents the general area where the facility will be located or there is substantial public interest in the proposed activity;(10) a statement that there is an opportunity for a contested case hearing, the procedures by which the public may request a contested case hearing, and that only disputed issues of fact or mixed issues of fact and law that are relevant and material to the commission's decision that are raised during the comment period can be considered if a contested case hearing is granted;(11) a statement that the executive director may issue final approval of the application unless a timely contested case hearing request is filed with the chief clerk after transmittal of the executive director's decision and response to public comment;(12) the name and telephone number of an agency contact that interested persons may contact for further information; and(13) any additional information required by the executive director.(c) Publication of the notice. The notice of application and preliminary decision, the administratively and technically complete application, the draft permit, and the technical summary, excluding oversized documents, will be posted on the TCEQ website for public review and comment. Concurrently with posting on the website, the notice of application and preliminary decision will be emailed to the email address on file with the Office of the Chief Clerk for the following individuals and agencies:(1) the state senator and the state representative who represent the area where the facility is or will be located;(2) the Texas Parks and Wildlife Department;(3) the Texas General Land Office;(4) the county judge who represents the area where the facility is or will be located; and(5) persons on the mailing lists required by §39.407 of this title (relating to Mailing Lists) that have provided a valid email address.(d) Amendment after notice. No amendments to an application which would constitute a major amendment under the terms of §318.6 of this title (relating to Amendment of a Permit) can be made by the applicant after the notice of application and preliminary decision has been posted on the TCEQ website, unless new notice is posted on the TCEQ website which includes a description of the proposed amendments to the application. For purposes of this subsection, an attempted transfer of an application shall constitute an amendment requiring additional notice.(e) Public comment. Public comments must be filed with the chief clerk within the time period specified in the notice. The public notice period shall end 15 calendar days after the date of posting on the TCEQ website unless extended by the executive director for good cause. The public comment period shall be extended to the close of any public meeting.(f) Public meeting notice. Notice of a public meeting must include the following information:(1) the information required by subsection (b)(1) - (3) and (12) of this section;(2) the date, time, and place of the meeting;(3) a brief description of the nature and purpose of the meeting, including the applicable rules and procedures; and(4) a brief description of public comment procedures, including a description of the manner in which comments regarding the executive director's preliminary decision may be submitted and a statement in the notice for any permit application for which there is an opportunity for contested case hearing that only relevant and material issues raised during the comment period can be considered if a contested case hearing is granted.(g) Recipients of public meeting notice. Notice of a public meeting will be mailed or emailed to any person who submitted comments or requested a public meeting; emailed to the state senator and the state representative who represent the area where the facility is or will be located, the Texas Parks and Wildlife Department, and the Texas General Land Office; emailed to the county judge who represents the area where the facility is or will be located; and posted on the TCEQ website at least 14 calendar days prior to the meeting date. The chief clerk need not mail or email notice of the public meeting to persons submitting public comment or public meeting requests who have not provided a return mailing address or email address.</content><note type="source"><p>Source Note: The provisions of this §39.902 adopted to be effective December 8, 2016, 41 TexReg 9531; amended to be effective February 18, 2026, 50 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scO/s39.903"><num value="39.903">§39.903</num><heading>Public Notice and Comment for Off-Shore Discharges</heading><content>(a) Filing the administrative record. After the technical review is completed, the executive director shall file the application, draft permit, technical summary, and draft notice of application and preliminary decision with the chief clerk.(b) Notice text. The notice of application and preliminary decision must contain the following information:(1) the permit number;(2) the name, address, and telephone number of the applicant;(3) a brief description of the location and nature of the proposed marine seawater desalination project, including the location of each outfall and the total quantity of water proposed to be discharged by the facility;(4) a summary of the executive director's preliminary decision and whether the executive director has prepared a draft permit;(5) a statement that the application is subject to the Coastal Management Program and must be consistent with the Coastal Management Program goals and policies;(6) the website address where the administratively and technically complete application, the draft permit, and the technical summary are posted for public review;(7) a description of the manner in which comments regarding the executive director's preliminary decision may be submitted and the deadline to submit comments;(8) a statement that the executive director will evaluate comments raising issues that are timely received and are relevant, material, or otherwise significant and develop a final technical summary; (9) the name and telephone number of an agency contact that interested persons may contact for further information; and(10) any additional information required by the executive director.(c) Publication of the notice. The notice of application and preliminary decision, the administratively and technically complete application, the draft permit, and the technical summary, excluding oversized documents, will be posted on the TCEQ website for public review and comment. Concurrently with posting on the website, the notice of application and preliminary decision will be emailed to the email address on file with the Office of the Chief Clerk for the following individuals and agencies:(1) the state senator and the state representative who represent the area where the facility is or will be located;(2) the Texas Parks and Wildlife Department;(3) the Texas General Land Office;(4) the county judge who represents the area where the facility is or will be located; and(5) persons on the mailing lists required by §39.407 of this title (relating to Mailing Lists) that have provided a valid email address.(d) Amendment after notice. No amendments to an application which would constitute a major amendment under the terms of §318.6 of this title (relating to Amendment of a Permit) can be made by the applicant after the notice of application and preliminary decision has been posted on the TCEQ website, unless new notice is posted on the TCEQ website which includes a description of the proposed amendments to the application. For purposes of this subsection, an attempted transfer of an application shall constitute an amendment requiring additional notice.(e) Public comment. Public comment must be filed with the chief clerk within the time period specified in the notice. The public notice period shall end 15 calendar days after the date of posting on the TCEQ website unless extended by the executive director for good cause. A public comment that is not filed with the chief clerk by the deadline provided in the notice shall be accepted by the chief clerk and placed in the application file, but the chief clerk shall not process it.(f) Response to comments and final decision. After the close of the comment period, the executive director shall:(1) evaluate all timely received and relevant, material, or otherwise significant issues raised in public comments;(2) develop a final technical summary which includes:(A) a summary of all timely received and relevant, material, or otherwise significant issues raised in public comments;(B) a response to the issues raised in public comments; and(C) a summary of the executive director's final decision;(3) revise the draft permit in response to comments, if necessary; and(4) file the final technical summary and revised draft permit, if applicable, with the chief clerk within the shortest practical time after the comment period ends.</content><note type="source"><p>Source Note: The provisions of this §39.903 adopted to be effective December 8, 2016, 41 TexReg 9531; amended to be effective February 18, 2026, 50 TexReg 911.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c39/scP"><num value="P">SUBCHAPTER P</num><heading>OTHER NOTICE REQUIREMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c39/scP/s39.1001"><num value="39.1001">§39.1001</num><heading>Purpose and Applicability</heading><content>This subchapter specifies the notice requirements for certain applications where opportunity for contested case hearing is otherwise not required by law and which are not subject to the requirements of Subchapters G - M of this chapter (relating to Public Notice for Applications for Consolidated Permits; Applicability and General Provisions; Public Notice of Solid Waste Applications; Public Notice of Water Quality Applications and Water Quality Management Plans; Public Notice of Air Quality Permit Applications; Public Notice of Injection Well and Other Specific Applications; and Public Notice for Radioactive Material Licenses).</content><note type="source"><p>Source Note: The provisions of this §39.1001 adopted to be effective May 14, 2020, 45 TexReg 3060.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scP/s39.1003"><num value="39.1003">§39.1003</num><heading>Notice of Application for Minor Amendments</heading><content>(a) Except as provided in subsection (d) of this section, the only required notice for applications for a minor amendment of a permit under Chapter 305, Subchapter D of this title (relating to Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits) is that the chief clerk shall mail notice to the persons listed in §39.413 of this title (relating to Mailed Notice). For an application for a minor amendment of an injection well permit, the chief clerk shall also mail notice to the persons entitled to receive notice under §39.651(c)(4) of this title (relating to Application for Injection Well Permit).(b) The text of the notice of application for minor amendment of a permit must provide:(1) the name and address of the agency;(2) the name and address of the applicant and, if different, the location of the facility or activity to be regulated by the permit;(3) a brief description of the application and business conducted at the facility or activity described in the application or the draft permit;(4) the name, address, and telephone number of an agency contact person from whom interested persons may obtain further information; (5) a brief description of public comment procedures;(6) the application or permit number;(7) a statement that the executive director may issue final approval of the application;(8) a statement of whether the executive director has prepared a draft permit; and(9) the deadline to file comments.(c) The deadline to file public comment is ten days after mailing.(d) Subsection (a) of this section does not apply to applications for a minor amendment or minor modification of a wastewater discharge permit. For such applications, the notice requirements are in §39.551 of this title (relating to Application for Wastewater Discharge Permit, Including Application for the Disposal of Sewage Sludge or Water Treatment Sludge).</content><note type="source"><p>Source Note: The provisions of this §39.1003 adopted to be effective May 14, 2020, 45 TexReg 3060; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scP/s39.1005"><num value="39.1005">§39.1005</num><heading>Notice of Class 1 Modification of an Industrial Solid Waste or Hazardous Waste Permit</heading><content>(a) Notice requirements for applications for Class 1 modifications are in §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee) for industrial solid waste or hazardous waste permits.(b) The text of required notice shall follow the requirements of §305.69 of this title and provide:(1) the name and address of the agency;(2) the name and address of the applicant and, if different, the location of the facility or activity to be regulated by the permit;(3) a brief description of the application and business conducted at the facility or activity described in the application or the draft permit;(4) the name, address, and telephone number of an agency contact person from whom interested persons may obtain further information; (5) a brief description of public comment procedures; and(6) the application or permit number.(c) When mailed notice is required, the applicant shall mail notice to the persons listed in §39.413 of this title (relating to Mailed Notice).</content><note type="source"><p>Source Note: The provisions of this §39.1005 adopted to be effective May 14, 2020, 45 TexReg 3060; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scP/s39.1007"><num value="39.1007">§39.1007</num><heading>Notice of Class 2 Modification of an Industrial Solid Waste or Hazardous Waste Permit</heading><content>The notice requirements for applications for Class 2 modifications are in §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee), except that the text of notice shall comply with §305.69 of this title and §39.411(b) of this title (relating to Text of Public Notice). The notice shall specify the deadline, as specified in §305.69 of this title, to file with the chief clerk public comment. When mailed notice is required, the applicant shall mail notice to the persons listed in §39.413 of this title (relating to Mailed Notice).</content><note type="source"><p>Source Note: The provisions of this §39.1007 adopted to be effective May 14, 2020, 45 TexReg 3060.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scP/s39.1009"><num value="39.1009">§39.1009</num><heading>Notice of Modification of a Municipal Solid Waste Permit or Registration.</heading><content>(a) When mailed notice is required under §305.70 of this title (relating to Municipal Solid Waste Permit and Registration Modifications), the mailed notice shall be mailed by the permit or registration holder and the text of the notice shall comply with §39.411(b)(1) - (3), (6), (7), (9), and (11) of this title (relating to Text of Public Notice).(b) When mailed notice is required by §305.70 of this title, notice shall be mailed by the permit or registration holder to the persons listed in §39.413 of this title (relating to Mailed Notice).</content><note type="source"><p>Source Note: The provisions of this §39.1009 adopted to be effective May 14, 2020, 45 TexReg 3060; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c39/scP/s39.1011"><num value="39.1011">§39.1011</num><heading>Notice of Application for Voluntary Transfer of Injection Well Permit</heading><content>(a) For notice of application for the voluntary transfer of an injection well permit, the chief clerk shall mail notice to the persons listed in §39.413 of this title (relating to Mailed Notice). The chief clerk shall also mail notice to:(1) persons who own the property on which the existing or proposed injection well facility is or will be located, if different from the applicant;(2) landowners adjacent to the property on which the existing or proposed injection well facility is or will be located;(3) persons who own mineral rights underlying the existing or proposed injection well facility; and(4) persons who own mineral rights underlying the tracts of land adjacent to the property on which the existing or proposed injection well facility is or will be located.(b) The text of the notice of application for the voluntary transfer of an injection well permit must provide:(1) the name and address of the agency;(2) the name and address of the applicant and, if different, the location of the facility or activity to be regulated by the permit;(3) a brief description of the application and business conducted at the facility or activity described in the application or the draft permit;(4) the name, address, and telephone number of an agency contact person from whom interested persons may obtain further information; (5) a brief description of public comment procedures;(6) the application or permit number;(7) a statement that the executive director may issue final approval of the application;(8) a statement of whether the executive director has prepared a draft permit; and(9) the deadline to file comments.(c) The deadline to file public comment for the voluntary transfer of an injection well permit is ten days after mailing.(d) If the executive director determines that changes to the injection well permit in addition to the transfer are necessary, other notice requirements may apply.</content><note type="source"><p>Source Note: The provisions of this §39.1011 adopted to be effective May 14, 2020, 45 TexReg 3060; amended to be effective February 18, 2026, 51 TexReg 911.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c40"><num value="40">CHAPTER 40</num><heading>ALTERNATIVE DISPUTE RESOLUTION PROCEDURE</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c40/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c40/sc/s40.1"><num value="40.1">§40.1</num><heading>Policy</heading><content>It is the commission's policy to encourage the resolution and early settlement of all contested matters through voluntary settlement procedures. It is the affirmative responsibility of each commission employee to effectuate this policy.</content><note type="source"><p>Source Note: The provisions of this §40.1 adopted to be effective June 6, 1996, 21 TexReg 4726.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c40/sc/s40.2"><num value="40.2">§40.2</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) ADR--Alternative dispute resolution.(2) Alternative dispute resolution procedure or ADR procedure--A nonjudicial and informally conducted forum for the voluntary settlement of contested matters through the intervention of an impartial third party.(3) Alternative dispute resolution director or ADR director--The director of the agency office empowered by the commission to coordinate and oversee ADR procedures and mediators.(4) Contested matter--A request for a license, permit, order, or other formal authorization from the commission that is opposed.(5) Mediator--The person appointed by the ADR office director to preside over ADR proceedings regardless of which ADR method is used.(6) Participant--The executive director, the public interest counsel, the applicant, and the persons who timely filed hearing requests which gave rise to the dispute or if parties have been named, the named parties.(7) Private mediator--A person in the profession of mediation who is not a Texas state employee and who has met all the qualifications prescribed by Texas law for mediators.</content><note type="source"><p>Source Note: The provisions of this §40.2 adopted to be effective June 6, 1996, 21 TexReg 4726.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c40/sc/s40.3"><num value="40.3">§40.3</num><heading>Referral of Contested Matter for Alternative Dispute Resolution Procedures</heading><content>The commission or the ADR director may seek to resolve a contested matter through any ADR procedure. Such procedures may include, but are not limited to, those applied to resolve matters pending in the state's district courts.</content><note type="source"><p>Source Note: The provisions of this §40.3 adopted to be effective June 6, 1996, 21 TexReg 4726.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c40/sc/s40.4"><num value="40.4">§40.4</num><heading>Appointment of Mediator</heading><content>(a) For each matter referred for ADR procedures, the ADR director shall assign a mediator, unless the participants agree upon the use of a private mediator. The ADR director may assign a substitute or additional mediator to a proceeding as the ADR director deems necessary.(b) A private mediator may be hired for commission ADR procedures provided that:(1) the participants unanimously agree to use a private mediator;(2) the participants unanimously agree to the selection of the person to serve as the mediator;(3) the mediator agrees to be subject to the direction of the commission's ADR director and to all time limits imposed by the director, the judge, statute, or regulation.(c) If a private mediator is used, the costs for the services of the mediator shall be apportioned equally among the participants, unless otherwise agreed upon by the participants, and shall be paid directly to the mediator. In no event, however, shall any such costs be apportioned to a governmental subdivision or entity that is a statutory party to the hearing.(d) All mediators in commission mediation proceedings shall subscribe to the ethical guidelines for mediators adopted by the ADR Section of the State Bar of Texas.</content><note type="source"><p>Source Note: The provisions of this §40.4 adopted to be effective June 6, 1996, 21 TexReg 4726.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c40/sc/s40.5"><num value="40.5">§40.5</num><heading>Qualifications of Mediators</heading><content>(a) The commission shall establish a pool of commission staff mediators to resolve contested matters through ADR procedures.(1) To the extent practicable, each mediator shall receive 40 hours of formal training in ADR procedures through programs approved by the ADR director.(2) Other individuals may serve as mediators on an ad hoc basis in light of particular skills or experience which will facilitate the resolution of individual contested matters.(b) SOAH mediators, employees of other agencies who are mediators, and private pro bono mediators may be assigned to contested matters as needed.(1) Each mediator shall first have received 40 hours of Texas mediation training as prescribed by Texas law.(2) Each mediator shall have some expertise in the area of the contested matter.(3) If the mediator is a SOAH judge, that person will not also sit as the judge for the case if the contested matter goes to public hearing.</content><note type="source"><p>Source Note: The provisions of this §40.5 adopted to be effective June 6, 1996, 21 TexReg 4726.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c40/sc/s40.6"><num value="40.6">§40.6</num><heading>Commencement of ADR</heading><content>(a) The commission encourages the resolution of disputes at any time, whether under this chapter or not. ADR procedures under this chapter may begin, at the discretion of the ADR director, anytime after the application has been deemed administratively complete and at least one letter protesting the application has been filed with the commission.(b) Upon unanimous motion of the parties and at the discretion of the judge, the provisions of this subsection may apply to contested hearings. In such cases, it is within the discretion of the judge to continue the hearing to allow the use of ADR procedures.</content><note type="source"><p>Source Note: The provisions of this §40.6 adopted to be effective June 6, 1996, 21 TexReg 4726.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c40/sc/s40.7"><num value="40.7">§40.7</num><heading>Stipulations</heading><content>When ADR procedures do not result in the full settlement of a contested matter, the participants, in conjunction with the mediator, shall limit the contested issues through the entry of written stipulations. Such stipulations shall be forwarded or formally presented to the judge assigned to conduct the hearing on the merits and shall be included in the hearing record.</content><note type="source"><p>Source Note: The provisions of this §40.7 adopted to be effective June 6, 1996, 21 TexReg 4726.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c40/sc/s40.8"><num value="40.8">§40.8</num><heading>Agreements</heading><content>Agreements of the participants reached as a result of ADR must be in writing, and are enforceable in the same manner as any other written contract.</content><note type="source"><p>Source Note: The provisions of this §40.8 adopted to be effective June 6, 1996, 21 TexReg 4726.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c40/sc/s40.9"><num value="40.9">§40.9</num><heading>Confidentiality of Communications in Alternative Dispute Resolution Procedures</heading><content>(a) Except as provided in subsections (c) and (d) of this section, a communication relating to the subject matter made by a participant in an ADR procedure, whether before or after the institution of formal proceedings, is confidential, is not subject to disclosure, and may not be used as evidence in any further proceeding.(b) Any notes or record made of an ADR procedure are confidential, and participants, including the mediator, may not be required to testify in any proceedings relating to or arising out of the matter in dispute or be subject to process requiring disclosure of confidential information or data relating to or arising out of the matter in dispute.(c) An oral communication or written material used in or made a part of an ADR procedure is admissible or discoverable only if it is admissible or discoverable independent of the procedure.(d) If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be presented to the judge to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order or whether the communications or materials are subject to disclosure.(e) The mediator may not, directly or indirectly, communicate with the judge or any commissioner, on any aspect of ADR negotiations made confidential by this section.</content><note type="source"><p>Source Note: The provisions of this §40.9 adopted to be effective June 6, 1996, 21 TexReg 4726.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c50"><num value="50">CHAPTER 50</num><heading>ACTION ON APPLICATIONS AND OTHER AUTHORIZATIONS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c50/scE"><num value="E">SUBCHAPTER E</num><heading>PURPOSE, APPLICABILITY, AND DEFINITIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c50/scE/s50.102"><num value="50.102">§50.102</num><heading>Applicability</heading><content>(a) Subchapters E - G of this chapter (relating to Purpose, Applicability and Definitions; Action by the Commission; and Action by the Executive Director) apply to any applications that are declared administratively complete on or after September 1, 1999, except as described in subsections (b) and (c) of this section.(b) Subchapters E - G of this chapter apply to certification of water quality management plan (WQMP) updates.(c) Only the following sections of this chapter apply to initial applications for electric generating facility permits under Texas Utilities Code, §39.264:(1) §50.117 of this title (relating to Commission Actions);(2) §50.131 of this title (relating to Purpose and Applicability);(3) §50.133 of this title (relating to Executive Director Action on Application or WQMP update);(4) §50.135 of this title (relating to Effective Date of Executive Director Action); and(5) §50.145 of this title (relating to Corrections to Permits).(d) This chapter does not apply to applications for emergency or temporary orders or temporary authorizations.(e) Subchapters E - G of this chapter do not apply to air quality applications under Chapter 122 of this title (relating to Federal Operating Permits) except for §50.117 of this title.</content><note type="source"><p>Source Note: The provisions of this §50.102 adopted to be effective September 23, 1999, 24 TexReg 8254; amended to be effective May 14, 2020, 45 TexReg 3072.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c50/scF"><num value="F">SUBCHAPTER F</num><heading>ACTION BY THE COMMISSION</heading><section identifier="/us/state/tx/tac/t30/p1/c50/scF/s50.113"><num value="50.113">§50.113</num><heading>Applicability and Action on Application</heading><content>(a) Applicability. This subchapter applies to applications that are declared administratively complete on or after September 1, 1999.(b) This chapter does not create a right to a contested case hearing where the opportunity for a contested case hearing does not exist under other law.(c) After the deadline for filing a request for reconsideration or contested case hearing under §55.201 of this title (relating to Requests for Reconsideration or Contested Case Hearing), the commission may act on an application without holding a contested case hearing or acting on a request for reconsideration, if:(1) no timely request for reconsideration or hearing has been received;(2) all timely requests for reconsideration or hearing have been withdrawn, or have been denied by the commission;(3) a judge has remanded the application because of settlement; or(4) for applications under Texas Water Code, Chapters 26 and 27 and Texas Health and Safety Code, Chapters 361 and 382, the commission finds that there are no issues that:(A) involve a disputed question of fact;(B) were raised during the public comment period; and(C) are relevant and material to the decision on the application.(d) Without holding a contested case hearing, the commission may act on:(1) an application for any air permit amendment, modification, or renewal application that would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted;(2) an application for any initial issuance of an air permit for an electric generating facility;(3) an application for a hazardous waste permit renewal under §305.631(a)(8) of this title (relating to Renewal);(4) an application for a wastewater discharge permit renewal or amendment under Texas Water Code, §26.028(d), unless the commission determines that an applicant's compliance history as determined under Chapter 60 of this title (relating to Compliance History) raises issues regarding the applicant's ability to comply with a material term of its permit;(5) an application for a Class I injection well permit used only for the disposal of nonhazardous brine produced by a desalination operation or nonhazardous drinking water treatment residuals under Texas Water Code, §27.021, concerning Permit for Disposal of Brine from Desalination Operations or of Drinking Water Treatment Residuals in Class I Injection Wells;(6) the issuance, amendment, renewal, suspension, revocation, or cancellation of a general permit, or the authorization for the use of an injection well under a general permit under Texas Water Code, §27.023, concerning General Permit Authorizing Use of Class I Injection Well to Inject Nonhazardous Brine from Desalination Operations or Nonhazardous Drinking Water Treatment Residuals;(7) an application for a permit, registration, license, or other type of authorization required to construct, operate, or authorize a component of the FutureGen project as defined in §91.30 of this title (relating to Definitions), if the application was submitted on or before January 1, 2018; and(8) other types of applications where a contested case hearing request has been filed but no opportunity for hearing is provided by law.</content><note type="source"><p>Source Note: The provisions of this §50.113 adopted to be effective September 23, 1999, 24 TexReg 8254; amended to be effective August 29, 2002, 27 TexReg 7820; amended to be effective September 16, 2004, 29 TexReg 8814; amended to be effective March 29, 2006, 31 TexReg 2479; amended to be effective July 10, 2008, 33 TexReg 5323; amended to be effective May 14, 2020, 45 TexReg 3072; amended to be effective January 7, 2021, 46 TexReg 187.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c50/scF/s50.115"><num value="50.115">§50.115</num><heading>Scope of Contested Case Hearings</heading><content>(a) Subsections (b) - (d) of this section apply to applications under Texas Water Code, Chapters 26 and 27 and Texas Health and Safety Code, Chapters 361 and 382. Subsection (e)(1) of this section applies to all applications under this subchapter. Subsections (e)(2) and (f) of this section apply as stated in the subsection.(b) When the commission grants a request for a contested case hearing, the commission shall issue an order specifying the number and scope of the issues to be referred to State Office of Administrative Hearings (SOAH) for a hearing.(c) The commission may not refer an issue to SOAH for a contested case hearing unless the commission determines that the issue:(1) involves a disputed question of fact or a mixed question of law and fact;(2) was raised during the public comment period, and, for applications filed on or after September 1, 2015, was raised in a comment made by an affected person whose request is granted; and(3) is relevant and material to the decision on the application.(d) Consistent with the nature and number of the issues to be considered at the contested case hearing, the commission by order shall specify the maximum expected duration of the hearing by stating the date by which the judge is expected to issue a proposal for decision.(1) For applications filed before September 1, 2015, no hearing shall be longer than one year from the first day of the preliminary hearing to the date the proposal for decision is issued. A judge may extend any hearing if the judge determines that failure to grant an extension will deprive a party of due process or another constitutional right.(2) For applications filed on or after September 1, 2015, the administrative law judge must complete the hearing and provide a proposal for decision by the 180th day after the first day of the preliminary hearing, or the date specified by the commission, whichever is earlier. This deadline may be extended by the judge if the judge determines that failure to grant an extension would unduly deprive a party of due process or another constitutional right, or by agreement of the parties with approval of the judge.(e) The commission may limit the scope of a contested case hearing:(1) to only those portions of a permit for which the applicant requests action through an amendment or modification. All terms, conditions, and provisions of an existing permit remain in full force and effect during the proceedings, and the permittee shall comply with an existing permit until the commission acts on the application; and(2) to only those requirements in Texas Health and Safety Code, §382.055 for the review of a permit renewal.(f) When referring a case to SOAH, for applications other than those filed under Texas Water Code, Chapters 26 and 27 and Texas Health and Safety Code, Chapters 361 and 382, the commission or executive director shall provide a list of disputed issues. For hearings on these applications, the disputed issues are deemed to be those defined by law governing these applications, unless the commission orders otherwise under §80.6(d) of this title (relating to Referral to SOAH).(g) When referring a case to SOAH under Texas Water Code, §5.556 for applications filed on or after September 1, 2015, the commission shall submit a list of detailed and complete issues.</content><note type="source"><p>Source Note: The provisions of this §50.115 adopted to be effective September 23, 1999, 24 TexReg 8254; amended to be effective December 31, 2015, 40 TexReg 9651.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c50/scF/s50.117"><num value="50.117">§50.117</num><heading>Commission Actions</heading><content>(a) The commission may grant or deny an application in whole or in part, suspend the authority to conduct an activity or dispose of waste for a specified period of time, dismiss proceedings, amend or modify a permit or order, or take any other appropriate action.(b) For applications involving hazardous waste under the Texas Solid Waste Disposal Act, the commission may issue or deny a permit for one or more units at the facility. The interim status of any facility unit compliant with the provisions of Texas Health and Safety Code, §361.082(e), and §335.2(c) of this title (relating to Permit Required) for which a permit has not been issued or denied is not affected by the issuance or denial of a permit to any other unit at the facility.(c) If the commission directs a person to perform or refrain from performing any act or activity, the order shall set forth the findings on which the directive is based. The commission may set a reasonable compliance deadline in its order in which to:(1) terminate the operation or activity;(2) cease disposal, handling, or storage of any waste;(3) conform to the permit requirements, including any new or additional conditions imposed by the commission; or(4) otherwise comply with the commission's order.(d) For good cause, the commission may grant an extension of time to a compliance deadline upon application by the permittee.(e) For applications involving radioactive material licenses under the Texas Radiation Control Act, the commission may incorporate in any license at the time of issuance, or thereafter by appropriate rule or order, additional requirements and conditions as it deems appropriate or necessary to:(1) protect and minimize danger to public health and safety or the environment;(2) require reports and the keeping of records and to provide for inspections of activities under the license as may be appropriate or necessary; and(3) prevent loss or theft of radioactive material subject to this subchapter.(f) Consistent with Chapter 5, Subchapter M of the Texas Water Code (for applications under Chapter 26 or 27 of the Texas Water Code and Chapter 361 of the Texas Health and Safety Code), and for applications under Chapter 382 of the Texas Health and Safety Code, the commission shall consider all timely public comment in making its decision and shall either adopt the executive director's response to public comment in whole or in part or prepare a commission response.(g) After the conclusion of the contested case hearing, if the commission issues a final decision on an application rather than remanding, continuing, or referring the case back to SOAH, the commission shall issue a single decision on the application.</content><note type="source"><p>Source Note: The provisions of this §50.117 adopted to be effective September 23, 1999, 24 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c50/scF/s50.119"><num value="50.119">§50.119</num><heading>Notice of Commission Action, Motion for Rehearing</heading><content>(a) If the commission acts on an application, the chief clerk shall mail or otherwise transmit the order and notice of the action to the applicant, executive director, public interest counsel, and to other persons who timely filed public comment, or requests for reconsideration or contested case hearing. The notice shall explain the opportunity to file a motion under §80.272 of this title (relating to Motion for Rehearing). If the commission adopts a response to comments that is different from the executive director's response to comments, the chief clerk shall also mail the final response to comments. The chief clerk need not mail notice of commission action to persons submitting public comment or requests for reconsideration or contested case hearing who have not provided a return mailing address. The chief clerk may mail the information to a representative group of persons when a substantial number of public comments have been submitted.(b) If the commission acts on an application, §80.272 of this title applies. A motion for rehearing must be filed not later than 25 days after the date the commission's final decision or order on the application is signed, unless the time for filing the motion for rehearing has been extended under Texas Government Code, §2001.142 and §80.276 of this title, by agreement under Texas Government Code, §2001.147, or by the commission's written order issued pursuant to Texas Government Code, §2001.146(e). If the motion is denied under §80.272 and §80.273 of this title (relating to Motion for Rehearing and Decision Final and Appealable) the commission's decision is final and appealable under Texas Water Code, §5.351 or Texas Health and Safety Code, §§361.321, 382.032, or 401.341.(c) Motions for rehearing may be filed on:(1) an issue that was referred to State Office of Administrative Hearings (SOAH) for contested case hearing, or an issue that was added by the judge;(2) issues that the commission declined to send to SOAH for hearing; and(3) the commission's decision on an application.(d) A motion for rehearing must identify with particularity findings of fact or conclusions of law that are the subject of the complaint and any evidentiary or legal ruling claimed to be erroneous. The motion must also state the legal and factual basis for the claimed error.</content><note type="source"><p>Source Note: The provisions of this §50.119 adopted to be effective September 23, 1999, 24 TexReg 8254; amended to be effective February 3, 2000, 25 TexReg 593; amended to be effective December 31, 2015, 40 TexReg 9651.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c50/scG"><num value="G">SUBCHAPTER G</num><heading>ACTION BY THE EXECUTIVE DIRECTOR</heading><section identifier="/us/state/tx/tac/t30/p1/c50/scG/s50.131"><num value="50.131">§50.131</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to delegate authority to the executive director and to specify applications on which the executive director may take action on behalf of the commission. This subchapter does not affect the executive director's authority to act on an application where that authority is delegated elsewhere.(b) This subchapter applies to applications that are administratively complete on or after September 1, 1999 and to certifications of Water Quality Management Plan (WQMP) updates. Except as provided by subsection (c) of this section, this subchapter applies to:(1) air quality permits under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification);(2) appointments to the board of directors of districts created by special law;(3) certificates of adjudication;(4) district matters under Texas Water Code (TWC), Chapters 49 - 66;(5) districts' proposed impact fees, charges, assessments, or contributions approvable under Texas Local Government Code, Chapter 395;(6) extensions of time to commence or complete construction;(7) industrial and hazardous waste permits;(8) municipal solid waste permits;(9) on-site wastewater disposal system permits;(10) radioactive waste or radioactive material permits or licenses;(11) underground injection control permits;(12) water rights permits;(13) wastewater permits;(14) weather modification measures permits;(15) driller licenses under TWC, Chapter 32;(16) pump installer licenses under TWC, Chapter 33;(17) irrigator or installer registrations under TWC, Chapter 34; and(18) municipal management district matters under Texas Local Government Code, Chapter 375.(c) In addition to those things excluded from coverage under §50.102 of this title (relating to Applicability), this subchapter does not apply to:(1) air quality standard permits under Chapter 116 of this title, except for air quality standard permits that require a decision by the executive director;(2) air quality exemptions from permitting and permits by rule under Chapter 106 of this title (relating to Permits by Rule) except for concrete batch plants which are not contiguous or adjacent to a public works project;(3) consolidated proceedings covering additional matters not within the scope of subsection (b) of this section;(4) district matters under TWC, Chapters 49 - 66, as follows:(A) an appeal under TWC, §49.052 by a member of a district board concerning his removal from the board;(B) an application under TWC, Chapter 49, Subchapter K, for the dissolution of a district;(C) an application under TWC, §49.456 for authority to proceed in bankruptcy;(D) an appeal under TWC, §54.239, of a board decision involving the cost, purchase, or use of facilities; or(E) an application under TWC, §54.030 for conversion of a district to a municipal utility district;(5) actions of the executive director under Chapters 101, 111 - 115, 117, and 118 of this title (relating to General Air Quality Rules; Control of Air Pollution From Visible Emissions and Particulate Matter; Control of Air Pollution From Sulfur Compounds; Standards of Performance for Hazardous Air Pollutants and for Designated Facilities and Pollutants; Control of Air Pollution From Motor Vehicles; Control of Air Pollution From Volatile Organic Compounds; Control of Air Pollution From Nitrogen Compounds; and Control of Air Pollution Episodes);(6) all compost facilities authorized to operate by registration under Chapter 332 of this title (relating to Composting); and(7) an application for creation of a municipal management district under Texas Local Government Code, Chapter 375.(d) Regardless of subsection (b) or (c) of this section, when the rules governing a particular type of application allow a motion for reconsideration, §50.139(b) - (f) of this title (relating to Motion to Overturn Executive Director's Decision) applies. If the rules under which the executive director evaluates a registration application provide criteria for evaluating the application, the commission's reconsideration will be limited to those criteria.</content><note type="source"><p>Source Note: The provisions of this §50.131 adopted to be effective September 23, 1999, 24 TexReg 8254; amended to be effective October 6, 2002, 27 TexReg 9362; amended to be effective October 11, 2007, 32 TexReg 7067; amended to be effective January 3, 2019, 43 TexReg 8606; amended to be effective May 14, 2020, 45 TexReg 3072; amended to be effective October 19, 2023, 48 TexReg 5981.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c50/scG/s50.133"><num value="50.133">§50.133</num><heading>Executive Director Action on Application or WQMP Update</heading><content>(a) The executive director may act on an application subject to this subchapter if:(1) public notice requirements have been satisfied and the executive director has considered the public comment and filed a response;(2) the application meets all relevant statutory and administrative criteria;(3) the application does not raise new issues that require the interpretation of commission policy;(4) the executive director's staff and public interest counsel do not raise objections; and(5) the application is uncontested because:(A) no timely requests for reconsideration or contested case hearing are filed with the chief clerk;(B) the applicant and the persons who filed timely requests for reconsideration or contested case hearing have agreed in writing to the action to be taken by the executive director;(C) any timely requests for reconsideration or contested case hearing have been withdrawn in writing or have been denied;(D) a settlement was reached in a contested case hearing, and the application has been remanded from SOAH; or(E) a contested case hearing request has been filed but no opportunity for hearing is provided by law.(6) the application is for any air permit amendment, modification, or renewal that would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted.(b) If the executive director acts on an application, the chief clerk shall mail or otherwise transmit notice of the action and an explanation of the opportunity to file a motion under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision), if applicable. The chief clerk shall mail this notice to the applicant, the public interest counsel, and to other persons who timely filed public comment in response to public notice. The chief clerk need not mail notice of executive director action to persons submitting public comment who have not provided a return mailing address. The chief clerk may mail the information to a representative group of persons when a substantial number of public comments have been submitted. If there were timely filed hearing requests that the commission denied, the chief clerk should also mail to the persons who timely filed hearing requests.(c) If an application does not meet the requirements of subsection (a) of this section, the executive director shall refer the application to the chief clerk. The chief clerk shall schedule the application for consideration and action by the commission.(d) The executive director may certify a water quality management plan (WQMP) update if:(1) public notice has been issued as required by law and commission rules; and(2) all significant comments received by the end of the comment period are considered by the executive director's staff and, if appropriate, revisions are made to the WQMP in response to those comments.</content><note type="source"><p>Source Note: The provisions of this §50.133 adopted to be effective September 23, 1999, 24 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c50/scG/s50.135"><num value="50.135">§50.135</num><heading>Effective Date of Executive Director Action</heading><content>A permit or other approval is effective when signed by the executive director, unless otherwise specified in the permit.</content><note type="source"><p>Source Note: The provisions of this §50.135 adopted to be effective September 23, 1999, 24 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c50/scG/s50.137"><num value="50.137">§50.137</num><heading>Remand for Action by Executive Director</heading><content>At any time during the processing of an application, if all timely requests for reconsideration or hearing on the application are withdrawn or denied, the commission or the general counsel, or the judge if SOAH holds jurisdiction over the application, may remand the application to the executive director. If the application has been scheduled for a commission meeting, the chief clerk shall remove it from the commission's agenda.</content><note type="source"><p>Source Note: The provisions of this §50.137 adopted to be effective September 23, 1999, 24 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c50/scG/s50.139"><num value="50.139">§50.139</num><heading>Motion to Overturn Executive Director's Decision</heading><content>(a) The applicant, public interest counsel or other person may file with the chief clerk a motion to overturn the executive director's action on an application or water quality management plan (WQMP) update certification. Regardless of any other law, a state agency, except a river authority, may not file a motion to overturn the executive director's action on an application that was received by the commission on or after September 1, 2011 unless the state agency is the applicant. Wherever other commission rules refer to a "motion for reconsideration," that term should be considered interchangeable with the term "motion to overturn executive director's decision."(b) A motion to overturn must be filed no later than 23 days after the date the agency mails notice of the signed permit, approval, or other action of the executive director to the applicant and persons on any required mailing list for the action.(c) A motion to overturn must be filed no later than 20 days after the date persons who timely commented on the WQMP update are notified of the response to comments and the certified WQMP update. A person is presumed to have been notified on the third day after the date the notice of the executive director's action is mailed by first class mail.(d) An action by the executive director under this subchapter is not affected by a motion to overturn filed under this section unless expressly ordered by the commission.(e) With the agreement of the parties or on their own motion, the commission or the general counsel may, by written order, extend the period of time for filing motions to overturn and for taking action on the motions so long as the period for taking action is not extended beyond 90 days after the date the agency mails notice of the signed permit, approval, or other action of the executive director.(f) Disposition of motion.(1) Unless an extension of time is granted, if a motion to overturn is not acted on by the commission within 45 days after the date the agency mails notice of the signed permit, approval, or other action of the executive director, the motion is denied.(2) In the event of an extension, the motion to overturn is overruled by operation of law on the date fixed by the order, or in the absence of a fixed date, 90 days after the date the agency mails notice of the signed permit, approval, or other action of the executive director.(g) When a motion to overturn is denied under subsection (f) of this section, a motion for rehearing does not need to be filed as a prerequisite for appeal. Section 80.272 of this title (relating to Motion for Rehearing) and Texas Government Code, §2001.146, regarding motions for rehearing in contested cases do not apply when a motion to overturn is denied. If applicable, the commission decision may be subject to judicial review under Texas Water Code, §5.351, or Texas Health and Safety Code, §§361.321, 382.032, or 401.341.</content><note type="source"><p>Source Note: The provisions of this §50.139 adopted to be effective September 23, 1999, 24 TexReg 8254; amended to be effective February 3, 2000, 25 TexReg 593; amended to be effective April 1, 2001, 26 TexReg 2393; amended to be effective May 3, 2012, 37 TexReg 3120; amended to be effective May 14, 2020, 45 TexReg 3072.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c50/scG/s50.141"><num value="50.141">§50.141</num><heading>Eligibility of Executive Director</heading><content>The executive director may issue Texas pollutant discharge elimination system (TPDES) permits or other TPDES-related approvals only if he or she does not receive, and has not during the previous two years received, a significant portion of income directly or indirectly from permit holders or applicants for a permit.(1) For the purposes of this section:(A) "Significant portion of income" means 10% or more of gross personal income for a calendar year, except that it means 50% or more of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving that portion under retirement pension, or similar arrangement.(B) "Permit holders or applicants for a permit" does not include any department or agency of a state government, such as a Department of Parks or a Department of Fish and Wildlife.(C) "Income" includes retirement benefits, consultant fees, and stock dividends.(2) For purposes of this section, income is not received "directly or indirectly from permit holders or applicants for a permit" when it is derived from mutual fund payments, or from other diversified investments for which the recipient does not know the identity of the primary sources of income.</content><note type="source"><p>Source Note: The provisions of this §50.141 adopted to be effective September 23, 1999, 24 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c50/scG/s50.143"><num value="50.143">§50.143</num><heading>Withdrawing the Application</heading><content>(a) Upon a request by the applicant at any time before the application is referred to the State Office of Administrative Hearings (SOAH), the executive director shall allow the withdrawal of the application and shall file a written acknowledgment of the withdrawal with the chief clerk. If the application has been scheduled for a commission meeting, the chief clerk shall remove it from the commission's agenda. For purposes of this rule, an application is referred to SOAH when the commission votes during a public meeting for referral or when the executive director or the applicant file a request to refer with the chief clerk under §55.210 of this title (relating to Direct Referrals).(b) Applications filed before September 1, 2015, for which chief clerk mailed the executive director's preliminary decision and notice of a draft permit under §39.419 of this title (relating to Notice of Application and Preliminary Decision) that are subsequently withdrawn by the applicant are governed by the commission's rules as they existed immediately before September 1, 2015, and those rules are continued in effect for that purpose if the application is refiled with the commission and the executive director determines the resubmitted application is substantially similar to the withdrawn application. For purposes of making this determination, the executive director may consider the following information contained in the withdrawn application and the refiled application:(1) the name of the applicant;(2) the location or proposed location of the construction, activity or discharge, to be authorized by the application;(3) the air contaminants to be emitted;(4) the area to be served by a wastewater treatment facility;(5) the volume and nature of the wastewater to be treated by a wastewater treatment facility;(6) the volume and type of waste to be disposed;(7) changes in methods of treatment or disposal of waste; or(8) any other factor the executive director determines is relevant to this determination.</content><note type="source"><p>Source Note: The provisions of this §50.143 adopted to be effective September 23, 1999, 24 TexReg 8254; amended to be effective December 31, 2015, 40 TexReg 9651.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c50/scG/s50.145"><num value="50.145">§50.145</num><heading>Corrections to Permits</heading><content>(a) This section applies to a permit as defined in §3.2 of this title (relating to Definitions), except that it does not apply to air quality permits under Chapter 122 of this title (relating to Federal Operating Permits Program). The executive director, on his own motion or at the request of the permittee, may make a non-substantive correction to a permit either by reissuing the permit or by issuing an endorsement to the permit, without observing formal amendment or public notice procedures. The executive director must notify the permittee that the correction has been made and forward a copy of the endorsement or corrected permit for filing in the agency's official records.(b) The executive director may issue non-substantive permit corrections under this section:(1) to correct a clerical or typographical error;(2) to change the mailing address of the permittee, if updated information is provided by the permittee;(3) if updated information is provided by the permittee, to change the name of an incorporated permittee that amends its articles of incorporation only to reflect a name change, provided that the secretary of state can verify that a change in name alone has occurred;(4) to describe more accurately in a water rights permit or certificate of adjudication the boundary of or the point, rate, or period of diversion of water;(5) to describe more accurately the location of the authorized point or place of discharge, injection, deposit, or disposal of any waste, or the route which any waste follows along the watercourses in the state after being discharged;(6) to describe more accurately the pattern of discharge or disposal of any waste authorized to be disposed of;(7) to describe more accurately the character, quality, or quantity of any waste authorized to be disposed of; or(8) to state more accurately or update any provision in a permit without changing the authorizations or requirements addressed by the provision.(c) Before the executive director makes a correction to a permit under this section, the executive director shall inform the general counsel of the proposed correction, and shall provide a copy of such information to the public interest counsel. Review by the general counsel and the public interest counsel under this subsection does not apply to a correction described in subsection (b)(2) or (3) of this section. The public interest counsel shall advise the general counsel of any objections to the proposed correction. The general counsel shall act within five business days of receiving the executive director's proposal. If the general counsel determines that the proposed correction should not be issued under this section, the executive director shall not issue the correction, but may set the matter for commission action during a commission meeting. If the general counsel fails to act within five business days, the executive director may issue the correction as proposed.</content><note type="source"><p>Source Note: The provisions of this §50.145 adopted to be effective September 23, 1999, 24 TexReg 8254; amended to be effective January 3, 2019, 43 TexReg 8606.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c55"><num value="55">CHAPTER 55</num><heading>REQUESTS FOR RECONSIDERATION AND CONTESTED CASE HEARINGS; PUBLIC COMMENT</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c55/scD"><num value="D">SUBCHAPTER D</num><heading>APPLICABILITY AND DEFINITIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c55/scD/s55.101"><num value="55.101">§55.101</num><heading>Applicability</heading><content>(a) This subchapter and Subchapters E - G of this chapter (relating to Public Comment and Public Meetings; Requests for Reconsideration or Contested Case Hearing; and Requests for Contested Case Hearing and Public Comment on Certain Applications) apply to permit applications that are declared administratively complete on or after September 1, 1999, as specified in subsections (b) - (g) of this section.(b) This subchapter and Subchapters E - G of this chapter apply to public comments, public meetings, hearing requests, and requests for reconsideration.(c) This subchapter and Subchapters E and F of this chapter apply only to applications filed under Texas Water Code (TWC), Chapters 26, 27, and 32 and Texas Health and Safety Code (THSC), Chapters 361 and 382.(d) Subchapter G of this chapter applies to all applications other than those listed in subsection (e) of this section and other than those filed under TWC, Chapters 26, 27, and 32 and THSC, Chapters 361 and 382.(e) This subchapter and Subchapters E and F of this chapter apply to applications for amendment, modification, or renewal of air quality permits that would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted. The commission may not seek further public comment or hold a public hearing under the procedures provided by §39.419 of this title (relating to Notice of Application and Preliminary Decision), §55.156 of this title (relating to Public Comment Processing), and Subchapter F of this chapter for such applications. The commission may hold a contested case hearing if the application involves a facility for which the applicant's compliance history contains violations which are unresolved and which constitute a recurring pattern of egregious conduct which demonstrates a consistent disregard for the regulatory process, including the failure to make a timely and substantial attempt to correct the violations.(f) This subchapter and Subchapters E - G of this chapter do not apply to hearing requests related to:(1) applications for emergency or temporary orders;(2) applications for temporary or term permits for water rights;(3) air quality exemptions from permitting and permits by rule under Chapter 106 of this title (relating to Permits by Rule) except for construction of concrete batch plants which are not temporarily located contiguous or adjacent to a public works project;(4) applications for Class I injection well permits used only for the disposal of nonhazardous brine produced by a desalination operation or nonhazardous drinking water treatment residuals under TWC, §27.021, concerning Permit for Disposal of Brine from Desalination Operations or of Drinking Water Treatment Residuals in Class I Injection Wells;(5) the issuance, amendment, renewal, suspension, revocation, or cancellation of a general permit, or the authorization for the use of an injection well under a general permit under TWC, §27.025, concerning General Permit Authorizing Use of Class I Injection Well to Inject Nonhazardous Brine from Desalination Operations or Nonhazardous Drinking Water Treatment Residuals; and(6) applications where the opportunity for a contested case hearing does not exist under other laws.(g) This subchapter and Subchapters E - G of this chapter do not apply to:(1) applications for sludge registrations and notifications under Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation);(2) applications for authorization under Chapter 321 of this title (relating to Control of Certain Activities by Rule) except for applications for individual permits under Chapter 321, Subchapter B of this title (relating to Concentrated Animal Feeding Operations);(3) applications for registrations under Chapter 330 of this title (relating to Municipal Solid Waste);(4) applications for registrations and notifications under Chapter 332 of this title (relating to Composting);(5) applications under TWC, §11.036 or §11.041. The maximum expected duration of a hearing on an application referred to the State Office of Administrative Hearings (SOAH) under this provision shall be no longer than one year from the first day of the preliminary hearing, unless otherwise directed by the commission. The issues to be considered in a SOAH hearing on an application subject to this provision are all those issues that are material and relevant under the law;(6) applications under Chapter 122 of this title (relating to Federal Operating Permits Program);(7) applications for initial issuance of voluntary emissions reduction permits under THSC, §382.0519;(8) applications for initial issuance of permits for electric generating facility permits under Texas Utilities Code, §39.264;(9) air quality standard permits under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification);(10) applications for multiple plant permits under THSC, §382.05194; and(11) applications where the opportunity for a contested case hearing does not exist under other laws.</content><note type="source"><p>Source Note: The provisions of this §55.101 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective September 16, 2004, 29 TexReg 8817; amended to be effective July 5, 2006, 31 TexReg 5305; amended to be effective July 10, 2008, 33 TexReg 5325; amended to be effective January 3, 2019, 43 TexReg 8608; amended to be effective January 7, 2021, 46 TexReg 189.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scD/s55.103"><num value="55.103">§55.103</num><heading>Definitions</heading><content>The following words and terms, when used in Subchapters D - G of this chapter (relating to Applicability and Definitions; Public Comment and Public Meetings; Requests for Reconsideration or Contested Case Hearing; and Requests for Contested Case Hearing and Public Comment on Certain Applications) shall have the following meanings. (1) Affected person--A person who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the application. An interest common to members of the general public does not qualify as a personal justiciable interest. (A) The determination of whether a person is affected shall be governed by §55.203 of this title (relating to Determination of Affected Person), or, if applicable, under §55.256 of this title (relating to Determination of Affected Person).(B) Notwithstanding any other law, a state agency, except a river authority, may not file a request for a contested case hearing or request for reconsideration, nor may it be considered an affected person or named a party, or otherwise contest an application for a permit or license received by the commission on or after September 1, 2011 unless the state agency is the applicant.(C) For an air quality standard permit for a concrete batch plant, only a person actually residing within 440 yards of the proposed plant may be an affected person(2) Contested case hearing--A proceeding, including occupational licensing hearings, in which the legal rights, duties, or privileges of a person are determined by a state agency after an opportunity for adjudicative hearing.(3) Motion to overturn--A request for the commission to overturn a final decision made by the executive director under §50.139 of this title (relating to Motion to Overturn the Executive Director's Decision). (4) Motion for rehearing--A request for the commission to reconsider its final decision on a permit application under §50.119 of this title (relating to Notice of Commission Action, Motion for Rehearing) and §80.272 of this title (relating to Motion for Rehearing).(5) Public meeting--A meeting held under §55.154 of this title (relating to Public Meetings) that is intended for the taking of public comments. A public meeting is not a contested case hearing. (6) Request for reconsideration--A request that the commission reconsider the decision of the executive director on a permit application.</content><note type="source"><p>Source Note: The provisions of this §55.103 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective May 3, 2012, 37 TexReg 3133; amended to be effective February 18, 2026, 51 TexReg 940.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c55/scE"><num value="E">SUBCHAPTER E</num><heading>PUBLIC COMMENT AND PUBLIC MEETINGS</heading><section identifier="/us/state/tx/tac/t30/p1/c55/scE/s55.150"><num value="55.150">§55.150</num><heading>Applicability</heading><content>This subchapter applies only to applications filed under Texas Water Code, Chapter 26, 27, or 32 or Texas Health and Safety Code, Chapter 361 or 382 that are declared administratively complete on or after September 1, 1999.</content><note type="source"><p>Source Note: The provisions of this §55.150 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective July 5, 2006, 31 TexReg 5305.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scE/s55.152"><num value="55.152">§55.152</num><heading>Public Comment Period</heading><content>(a) Public comments must be filed with the chief clerk within the time period specified in the notice. The public comment period shall end 30 days after the last publication of the Notice of Application and Preliminary Decision, except that the time period shall end:(1) 30 days after the last publication of Notice of Receipt of Application and Intent to Obtain Permit under §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit), or 30 days after Notice of Application and Preliminary Decision if a second notice is required under §39.419 of this title (relating to Notice of Application and Preliminary Decision), for an air quality permit application not otherwise specified in this section;(2) 30 days after the last publication of the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision under §39.603 of this title (relating to Newspaper Notice) for a registration for a concrete batch plant under the Air Quality Standard Permit for Concrete Batch Plants adopted by the commission under Chapter 116, Subchapter F of this title (relating to Standard Permits), unless the plant is to be temporarily located in or contiguous to the right-of-way of a public works project;(3) 30 days after the last publication of the consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision under §39.603 of this title for an application for a new permit or permit amendment under Chapter 116, Subchapters B and G of this title (relating to New Source Review Permits and Flexible Permits);(4) 15 days after the last publication of Notice of Receipt of Application and Intent to Obtain Permit under §39.418 of this title, or 30 days after Notice of Application and Preliminary Decision if a second notice is required under §39.419 of this title, for a permit renewal under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification); (5) 45 days after the last publication of the notice of Application and Preliminary Decision for an application for a hazardous waste facility permit, or to amend, extend, or renew or to obtain a Class 3 Modification of such a permit, or 30 days after the publication of Notice of Application and Preliminary Decision for Class 3 modifications of non-hazardous industrial solid waste permits;(6) 30 days after the mailing of the notice of draft production area authorization under Chapter 331 of this title (relating to Underground Injection Control);(7) the time specified in commission rules for other specific types of applications; or(8) as extended by the executive director for good cause.(b) The public comment period shall automatically be extended if a public meeting is held:(1) to at least the close of any public meeting for permit applications; and(2) for at least 36 hours following the close of any public meeting for air quality permit applications with a consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision that are received by the executive director on or after March 1, 2026.(c) Timely comments are those received by the Office of the Chief Clerk by the end of the comment period.</content><note type="source"><p>Source Note: The provisions of this §55.152 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective June 24, 2010, 35 TexReg 5256; amended to be effective December 29, 2016, 41 TexReg 10345; amended to be effective May 31, 2018, 43 TexReg 3387; amended to be effective February 18, 2026, 51 TexReg 940.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scE/s55.154"><num value="55.154">§55.154</num><heading>Public Meetings</heading><content>(a) A public meeting is intended for the taking of public comment and is not a contested case hearing under the Texas Administrative Procedure Act.(b) During technical review of the application, the applicant, in cooperation with the executive director, may hold a public meeting in the county in which the facility is located or proposed to be located in order to inform the public about the application and obtain public input.(c) At any time, the executive director or the Office of the Chief Clerk may hold public meetings. The executive director or the Office of the Chief Clerk shall hold a public meeting if:(1) the executive director determines that there is a substantial or significant degree of public interest in an application; (2) a member of the legislature who represents the general area in which the facility is located or proposed to be located requests that a public meeting be held;(3) for Prevention of Significant Deterioration and Nonattainment permits subject to Chapter 116, Subchapter B of this title (relating to New Source Review Permits), an interested person requests a public meeting regarding the executive director's draft permit or air quality analysis; a public meeting held in response to a request under this paragraph will be held after Notice of Application and Preliminary Decision is published;(4) for applications for Hazardous Air Pollutant permits subject to Chapter 116, Subchapter E of this title (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)), an interested person requests a public meeting regarding the executive director's draft permit or air quality analysis; a public meeting held in response to a request under this paragraph will be held after Notice of Application and Preliminary Decision is published; or(5) when a public meeting is otherwise required by law.(d) Notice of the public meeting shall be given as required by §39.411(d) or (g) of this title (relating to Text of Public Notice), as applicable. The notice must also meet the requirements of §39.426(d) of this title (relating to Alternative Language Requirements), when applicable.(e) The applicant shall attend any public meeting held by the executive director or Office of the Chief Clerk. The applicant shall comply with the requirements of §39.426(d)(2) of this title, when applicable.(f) An audio recording or written transcript of the public meeting shall be made available to the public.(g) The executive director will respond to comments as required by §55.156(b) and (c) of this title (relating to Public Comment Processing).</content><note type="source"><p>Source Note: The provisions of this §55.154 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective June 24, 2010, 35 TexReg 5256; amended to be effective May 14, 2020, 45 TexReg 3077; amended to be effective September 16, 2021, 46 TexReg 5844; amended to be effective February 18, 2026, 51 TexReg 940.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scE/s55.156"><num value="55.156">§55.156</num><heading>Public Comment Processing</heading><content>(a) The chief clerk shall deliver or mail to the executive director, the Office of Public Interest Counsel, the director of the Alternative Dispute Resolution Office, and the applicant copies of all documents filed with the chief clerk in response to public notice of an application.(b) If comments are received, the following procedures apply to the executive director.(1) Before an application is approved, the executive director shall prepare a response to all timely, relevant and material, or significant public comment, whether or not withdrawn, and specify if a comment has been withdrawn. Before any air quality permit application for a Prevention of Significant Deterioration or Nonattainment permit subject to Chapter 116, Subchapter B of this title (relating to New Source Review Permits) or for applications for the establishment or renewal of, or an increase in, a plant-wide applicability limit permit under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification), filed on or after the effective date of this section, is approved, the executive director shall prepare a response to all comments received. The response shall specify the provisions of the draft permit that have been changed in response to public comment and the reasons for the changes.(2) The executive director may call and conduct public meetings, under §55.154 of this title (relating to Public Meetings), in response to public comment.(3) The executive director shall file the response to comments with the chief clerk within the shortest practical time after the comment period ends, not to exceed 60 days.(c) After the executive director files the response to comments, the chief clerk shall mail (or otherwise transmit) instructions for electronically accessing the executive director's decision, the executive director's response to public comments, and instructions for requesting that the commission reconsider the executive director's decision or hold a contested case hearing or information about how to request a hard copy of these documents. The chief clerk shall provide the information required by this section to the applicant, any person who submitted comments during the public comment period, any person who requested to be on the mailing list for the permit action, any person who timely filed a request for a contested case hearing in response to the Notice of Receipt of Application and Intent to Obtain a Permit for an air application, the Office of Public Interest Counsel, and the director of the External Relations Division. Instructions for requesting reconsideration of the executive director's decision or requesting a contested case hearing are not required to be included in this transmittal for the applications listed in:(1) §39.420(e) of this title (relating to Transmittal of the Executive Director's Response to Comments and Decision); and(2) §39.420(f) and (g) of this title.(d) The instructions sent under §39.420(a) of this title regarding how to request a contested case hearing shall include at least the following statements; however, this subsection does not apply to post-closure order applications:(1) a contested case hearing request must include the requester's location relative to the proposed facility or activity;(2) a contested case hearing request should include a description of how and why the requester will be adversely affected by the proposed facility or activity in a manner not common to the general public, including a description of the requester's uses of property which may be impacted by the proposed facility or activity;(3) only relevant and material disputed issues of fact raised during the comment period can be considered if a contested case hearing request is granted for an application filed before September 1, 2015;(4) only relevant and material disputed issues of fact and mixed questions of fact and law raised during the comment period by a hearing requester who is an affected person and whose request is granted can be considered if a contested case hearing request is granted for an application filed on or after September 1, 2015; and(5) a contested case hearing request may not be based on issues raised solely in a comment withdrawn by the commenter in writing by filing a withdrawal letter with the chief clerk prior to the filing of the Executive Director's Response to Comment.(e) The instructions sent under §39.420(c) of this title regarding how to request a contested case hearing shall include at least the following statements:(1) a contested case hearing request must include the requester's location relative to the proposed facility or activity;(2) a contested case hearing request should include a description of how and why the requestor will be adversely affected by the proposed facility or activity in a manner not common to the general public, including a description of the requester's uses of property which may be impacted by the proposed facility or activity;(3) only relevant and material disputed issues of fact raised during the comment period can be considered if a contested case hearing request is granted for an application filed before September 1, 2015;(4) only relevant and material disputed issues of fact and mixed questions of fact and law raised during the comment period by a hearing requester who is an affected person and whose request is granted can be considered if a contested case hearing request is granted for an application filed on or after September 1, 2015; and(5) a contested case hearing request may not be based on issues raised solely in a comment withdrawn by the commenter in writing by filing a withdrawal letter with the chief clerk prior to the filing of the Executive Director's Response to Comment.(f) For applications referred to State Office of Administrative Hearings under §55.210 of this title (relating to Direct Referrals): (1) for air quality permit applications subsections (c) and (d) of this section do not apply; and(2) for all other permit applications, subsections (b)(2), (c), and (d) of this section do not apply.(g) Regardless of the requirements in §39.420 of this title, the commission shall make available by electronic means on the commission's website the executive director's decision and the executive director's response to public comments.</content><note type="source"><p>Source Note: The provisions of this §55.156 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective December 27, 2001, 26 TexReg 10606; amended to be effective January 30, 2003, 28 TexReg 693; amended to be effective June 24, 2010, 35 TexReg 5256; amended to be effective December 31, 2015, 40 TexReg 9660; amended to be effective May 14, 2020, 45 TexReg 3077; amended to be effective September 16, 2021, 46 TexReg 5844; amended to be effective February 18, 2026, 51 TexReg 940.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c55/scF"><num value="F">SUBCHAPTER F</num><heading>REQUESTS FOR RECONSIDERATION OR CONTESTED CASE HEARING</heading><section identifier="/us/state/tx/tac/t30/p1/c55/scF/s55.200"><num value="55.200">§55.200</num><heading>Applicability</heading><content>This subchapter applies only to applications filed under Texas Water Code, Chapter 26, 27, or 32 or Texas Health and Safety Code, Chapter 361 or 382.</content><note type="source"><p>Source Note: The provisions of this §55.200 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective July 5, 2006, 31 TexReg 5305; amended to be effective February 18, 2026, 51 TexReg 940.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scF/s55.201"><num value="55.201">§55.201</num><heading>Requests for Reconsideration or Contested Case Hearing</heading><content>(a) A request for reconsideration or contested case hearing must be filed no later than 30 days after the chief clerk mails (or otherwise transmits) the executive director's decision and response to comments and provides instructions for requesting that the commission reconsider the executive director's decision or hold a contested case hearing.(b) The following may request a contested case hearing under this chapter:(1) the commission;(2) the executive director;(3) the applicant; and(4) affected persons, when authorized by law.(c) A request for a contested case hearing by an affected person must be in writing, must be filed with the chief clerk within the time provided by subsection (a) of this section, may not be based on an issue that was raised solely in a public comment withdrawn by the commenter in writing by filing a withdrawal letter with the chief clerk prior to the filing of the Executive Director's Response to Comment, and, for applications filed on or after September 1, 2015, must be based only on the requester's timely comments.(d) A hearing request must substantially comply with the following:(1) give the name, address, daytime telephone number, and, where possible, a valid email address of the person who files the request. If the request is made by a group or association, the request must identify one person by name, address, daytime telephone number, and, where possible, a valid email address, who shall be responsible for receiving all official communications and documents for the group;(2) identify the person's personal justiciable interest affected by the application, including a brief, but specific, written statement explaining in plain language the requester's location and distance relative to the proposed facility or activity that is the subject of the application and how and why the requester believes he or she will be adversely affected by the proposed facility or activity in a manner not common to members of the general public;(3) request a contested case hearing;(4) for applications filed:(A) before September 1, 2015, list all relevant and material disputed issues of fact that were raised during the public comment period and that are the basis of the hearing request. To facilitate the commission's determination of the number and scope of issues to be referred to hearing, the requester should, to the extent possible, specify any of the executive director's responses to comments that the requester disputes and the factual basis of the dispute and list any disputed issues of law or policy; or(B) on or after September 1, 2015, list all relevant and material disputed issues of fact that were raised by the requester during the public comment period and that are the basis of the hearing request. To facilitate the commission's determination of the number and scope of issues to be referred to hearing, the requester should, to the extent possible, specify any of the executive director's responses to the requester's comments that the requester disputes, the factual basis of the dispute, and list any disputed issues of law; and(5) provide any other information specified in the public notice of application.(e) Any person, other than a state agency that is prohibited by law from contesting the issuance of a permit or license as set forth in §55.103 of this title (relating to Definitions), may file a request for reconsideration of the executive director's decision. The request must be in writing and be filed by United States mail, facsimile, or hand delivery with the chief clerk within the time provided by subsection (a) of this section. The request should also contain the name, address, daytime telephone number, and, where possible, a valid email address of the person who files the request. The request for reconsideration must expressly state that the person is requesting reconsideration of the executive director's decision and give reasons why the decision should be reconsidered.(f) Documents that are filed with the chief clerk before the public comment deadline that comment on an application but do not request reconsideration or a contested case hearing shall be treated as public comment.(g) Procedures for late filed public comments, requests for reconsideration, or contested case hearing are as follows.(1) A request for reconsideration or contested case hearing, or public comment shall be processed under §55.209 of this title (relating to Processing Requests for Reconsideration and Contested Case Hearing) or under §55.156 of this title (relating to Public Comment Processing), respectively, if it is filed by the deadline. The chief clerk shall accept a request for reconsideration or contested case hearing, or public comment that is filed after the deadline, but the chief clerk shall not process it. The chief clerk shall place the late documents in the application file.(2) The commission may extend the time allowed to file a request for reconsideration, or a request for a contested case hearing. (h) Any person, except the applicant, the executive director, the public interest counsel, and a state agency that is prohibited by law from contesting the issuance of a permit or license as set forth in §55.103 of this title, who was provided notice as required under Chapter 39 of this title (relating to Public Notice) but who failed to file timely public comment, failed to file a timely hearing request, failed to participate in the public meeting held under §55.154 of this title (relating to Public Meetings), and failed to participate in the contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings) may file a motion for rehearing under §50.119 of this title (relating to Notice of Commission Action, Motion for Rehearing), or §80.272 of this title (relating to Motion for Rehearing) or may file a motion to overturn the executive director's decision under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) only to the extent of the changes from the draft permit to the final permit decision.(i) Applications for which there is no right to a contested case hearing include:(1) a minor amendment or minor modification of a permit under Chapter 305, Subchapter D of this title (relating to Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits); (2) a Class 1 or Class 2 modification of a permit under Chapter 305, Subchapter D of this title;(3) any air permit application for the following:(A) initial issuance of an electric generating facility permit;(B) permits issued under Chapter 122 of this title (relating to Federal Operating Permits Program);(C) a permit issued under Chapter 116, Subchapter B, Division 6 of this title (relating to Prevention of Significant Deterioration Review) that would authorize only emissions of greenhouse gases as defined in §101.1 of this title (relating to Definitions); or(D) amendment, modification, or renewal of an air application that would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted. The commission may hold a contested case hearing if the application involves a facility for which the applicant's compliance history contains violations that are unresolved and that constitute a recurring pattern of egregious conduct that demonstrates a consistent disregard for the regulatory process, including the failure to make a timely and substantial attempt to correct the violations;(4) hazardous waste permit renewals under §305.65(8) of this title (relating to Renewal);(5) an application, under Texas Water Code, Chapter 26, to renew or amend a permit if:(A) the applicant is not applying to:(i) increase significantly the quantity of waste authorized to be discharged; or(ii) change materially the pattern or place of discharge;(B) the activity to be authorized by the renewal or amended permit will maintain or improve the quality of waste authorized to be discharged;(C) any required opportunity for public meeting has been given;(D) consultation and response to all timely received and significant public comment has been given; and(E) the applicant's compliance history for the previous five years raises no issues regarding the applicant's ability to comply with a material term of the permit;(6) an application for a Class I injection well permit used only for the disposal of nonhazardous brine produced by a desalination operation or nonhazardous drinking water treatment residuals under Texas Water Code, §27.021, concerning Permit for Disposal of Brine from Desalination Operations or of Drinking Water Treatment Residuals in Class I Injection Wells;(7) the issuance, amendment, renewal, suspension, revocation, or cancellation of a general permit, or the authorization for the use of an injection well under a general permit under Texas Water Code, §27.025, concerning General Permit Authorizing Use of Class I Injection Well to Inject Nonhazardous Brine from Desalination Operations or Nonhazardous Drinking Water Treatment Residuals;(8) an application for a permit, registration, license, or other type of authorization required to construct, operate, or authorize a component of the FutureGen project as defined in §91.30 of this title (relating to Definitions), if the application was submitted on or before January 1, 2018;(9) other types of applications where a contested case hearing request has been filed, but no opportunity for hearing is provided by law; and(10) an application for a production area authorization, except as provided in accordance with §331.108 of this title (relating to Opportunity for a Contested Case Hearing on a Production Area Authorization Application).</content><note type="source"><p>Source Note: The provisions of this §55.201 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective September 16, 2004, 29 TexReg 8817; amended to be effective March 29, 2006, 31 TexReg 2482; amended to be effective July 10, 2008, 33 TexReg 5325; amended to be effective March 12, 2009, 34 TexReg 1624; amended to be effective May 3, 2012, 37 TexReg 3133; amended to be effective April 17, 2014, 39 TexReg 2869; amended to be effective December 11, 2014, 39 TexReg 9578; amended to be effective December 31, 2015,40TexReg9660; amended to be effective May 14, 2020, 45 TexReg 3079; amended to be effective January 7, 2021, 46 TexReg 189; amended to be effective February 18, 2026, 51 TexReg 940.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scF/s55.203"><num value="55.203">§55.203</num><heading>Determination of Affected Person</heading><content>(a) For any application, an affected person is one who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the application. An interest common to members of the general public does not qualify as a personal justiciable interest.(b) Except as provided by §55.103 of this title (relating to Definitions), governmental entities, including local governments and public agencies, with authority under state law over issues raised by the application may be considered affected persons.(c) In determining whether a person is an affected person, all factors shall be considered, including, but not limited to, the following:(1) whether the interest claimed is one protected by the law under which the application will be considered;(2) distance restrictions or other limitations imposed by law on the affected interest;(3) whether a reasonable relationship exists between the interest claimed and the activity regulated;(4) likely impact of the regulated activity on the health and safety of the person, and on the use of property of the person;(5) likely impact of the regulated activity on use of the impacted natural resource by the person;(6) for a hearing request on an application filed on or after September 1, 2015, whether the requester timely submitted comments on the application that were not withdrawn; and(7) for governmental entities, their statutory authority over or interest in the issues relevant to the application.(d) In determining whether a person is an affected person for the purpose of granting a hearing request for an application filed on or after September 1, 2015, the commission may also consider the following:(1) the merits of the underlying application and supporting documentation in the commission's administrative record, including whether the application meets the requirements for permit issuance;(2) the analysis and opinions of the executive director; and(3) any other expert reports, affidavits, opinions, or data submitted by the executive director, the applicant, or hearing requester.(e) In determining whether a person is an affected person for the purpose of granting a hearing request for an application filed before September 1, 2015, the commission may also consider the factors in subsection (d) of this section to the extent consistent with case law.</content><note type="source"><p>Source Note: The provisions of this §55.203 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective May 3, 2012, 37 TexReg 3133; amended to be effective December 31, 2015, 40 TexReg 9660; amended to be effective February 18, 2026, 51 TexReg 940.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scF/s55.205"><num value="55.205">§55.205</num><heading>Request by Group or Association</heading><content>(a) A group or association may request a contested case hearing only if the group or association meets all of the following requirements:(1) one or more members of the group or association would otherwise have standing to request a hearing in their own right;(2) the interests the group or association seeks to protect are germane to the organization's purpose; and(3) neither the claim asserted nor the relief requested requires the participation of the individual members in the case.(b) For applications filed on or after September 1, 2015, a request by a group or association for a contested case may not be granted unless all of the following requirements are met:(1) comments on the application are timely submitted by the group or association;(2) the request identifies, by name and physical address, one or more members of the group or association that would otherwise have standing to request a hearing in their own right;(3) the interests the group or association seeks to protect are germane to the organization's purpose; and(4) neither the claim asserted nor the relief requested requires the participation of the individual members in the case.(c) The executive director, the public interest counsel, or the applicant may request that a group or association provide an explanation of how the group or association meets the requirements of subsection (a) or (b) of this section. The request and reply shall be filed according to the procedure in §55.209 of this title (relating to Processing Requests for Reconsideration and Contested Case Hearing).</content><note type="source"><p>Source Note: The provisions of this §55.205 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective December 31, 2015, 40 TexReg 9660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scF/s55.209"><num value="55.209">§55.209</num><heading>Processing Requests for Reconsideration and Contested Case Hearing</heading><content>(a) This section and §55.211 of this title (relating to Commission Action on Requests for Reconsideration or Contested Case Hearing) apply only to requests for reconsideration and contested case hearing that are timely filed.(b) After the final deadline to submit requests for reconsideration or contested case hearing, the chief clerk shall process any requests for reconsideration or hearing by both:(1) referring the application and requests for reconsideration or contested case hearing to the alternative dispute resolution director. The alternative dispute resolution director shall try to resolve any dispute between the applicant and the requesters; and(2) scheduling the hearing request and request for reconsideration for a commission meeting. However, if only a request for reconsideration is submitted and the commission has delegated its authority to act on the request to the general counsel, the request for reconsideration shall be scheduled for a commission meeting only if the general counsel directs the chief clerk to do so. The chief clerk should try to schedule the requests for a commission meeting that will be held approximately 44 days after the final deadline for timely filed requests for reconsideration or contested case hearing.(c) The chief clerk shall mail notice to the applicant, executive director, public interest counsel, and all timely commenters and requesters at least 35 days before the first meeting at which the commission considers the requests. The notice shall explain how to participate in the commission decision, describe alternative dispute resolution under commission rules, and explain the relevant requirements of this chapter.(d) The executive director, the public interest counsel, and the applicant may submit written responses to the requests no later than 12 days after the chief clerk mails notice of the first meeting at which the commission will consider the hearing request, unless extended by the general counsel. Each party shall file its response with the chief clerk. On the same day, each party shall serve the executive director, the public interest counsel, the director of the External Relations Division, the applicant, and any requesters its response or notice that its response is available electronically on the commission's website along with instructions for accessing the responses or requesting a mailed copy.(e) Responses to hearing requests must specifically address:(1) whether the requester is an affected person;(2) which issues raised in the hearing request are disputed;(3) whether the dispute involves questions of fact or of law;(4) whether the issues were raised during the public comment period;(5) whether the hearing request is based on issues raised solely in a public comment withdrawn by the commenter in writing by filing a withdrawal letter with the chief clerk prior to the filing of the Executive Director's Response to Comment;(6) whether the issues are relevant and material to the decision on the application; and(7) a maximum expected duration for the contested case hearing.(f) Responses to requests for reconsideration should address the issues raised in the request.(g) The requesters may submit written replies to a response no later than 26 days after the chief clerk mails notice of the first meeting at which the commission will consider the request for reconsideration and the hearing request, unless extended by the general counsel. The requester shall file a reply with the chief clerk. On the same day, the requester shall serve to the executive director, the public interest counsel, and the applicant its reply or notice that its reply is available electronically on the commission's website.</content><note type="source"><p>Source Note: The provisions of this §55.209 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective December 27, 2001, 26 TexReg 10606; amended to be effective May 14, 2020, 45 TexReg 3079; amended to be effective February 18, 2026, 51 TexReg 940.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scF/s55.210"><num value="55.210">§55.210</num><heading>Direct Referrals</heading><content>(a) The executive director or the applicant may file a request with the chief clerk that the application be sent directly to State Office of Administrative Hearings (SOAH) for a hearing on the application.(b) After receipt of a request filed under this section and after the executive director has issued his preliminary decision on the application, the chief clerk shall refer the application directly to SOAH for a hearing on whether the application complies with all applicable statutory and regulatory requirements.(c) A case which has been referred to SOAH under this section shall not be subject to the public meeting requirements of §55.154 of this title (relating to Public Meetings). The agency may, however, call and conduct public meetings in response to public comment. A public meeting is intended for the taking of public comment and is not a contested case proceeding under the Administrative Procedure Act. Public meetings held under this section shall be subject to following procedures.(1) The executive director shall hold a public meeting when there is a significant degree of public interest in a draft permit, or when required by law.(2) To the extent practicable, the public meeting for any case referred under this section shall be held prior to or on the same date as the preliminary hearing.(3) Public notice of a public meeting may be abbreviated to facilitate the convening of the public meeting prior to or on the same date as the preliminary hearing, unless the timing of notice is set by statute or a federal regulation governing a permit under a federally authorized program. In any case, public notice must be provided at least ten days before the meeting.(4) If a public meeting is held, the public comment period shall be extended to at least the close of any public meeting and for at least 36 hours following the close of a public meeting for air quality permit applications with a consolidated Notice of Receipt of Application and Intent to Obtain Permit and Notice of Application and Preliminary Decision that are received by the executive director on or after March 1,2026.(5) The applicant shall attend any public meeting held.(6) An audio recording or written transcript of the public meeting shall be filed with the chief clerk and will be included in the chief clerk's case file to be sent to SOAH as provided by §80.6 of this title (relating to Referral to SOAH).(d) A case which has been referred to SOAH under this section shall be subject to the public comment processing requirements of §55.156(a) and (b)(1) and (3) of this title (relating to Public Comment Processing). The requirements of §39.426(e) of this title (relating to Alternative Language Requirements) shall also be met, as applicable.(e) For applications filed before September 1, 2015, if Notice of Application and Preliminary Decision is provided at or after direct referral under this section, this notice shall include, in lieu of the information required by §39.411(c) and (e) of this title (relating to Text of Public Notice), the following:(1) the information required by §39.411(b)(1) - (3), (4)(A), (6) - (11), and (13) and (e)(10), (11)(A), (C) and (D), (13) and (14) of this title;(2) the information required by §39.411(c)(4) and (5) of this title; and(3) a brief description of public comment procedures, including a description of the manner in which comments regarding the executive director's preliminary decision may be submitted, the deadline to file public comments or request a public meeting, and a statement that a public meeting will be held by the executive director if there is significant public interest in the proposed activity. These public comment procedures must be printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice.(f) For applications filed on or after September 1, 2015, the administrative law judge may not hold a preliminary hearing until after the issuance of the executive director's response to comment.</content><note type="source"><p>Source Note: The provisions of this §55.210 adopted to be effective December 27, 2001, 26 TexReg 10606; amended to be effective June 24, 2010, 35 TexReg 5256; amended to be effective December 31, 2015, 40 TexReg 9660; amended to be effective September 16, 2021, 46 TexReg 5844; amended to be effective February 18, 2026, 51 TexReg 940.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scF/s55.211"><num value="55.211">§55.211</num><heading>Commission Action on Requests for Reconsideration and Contested Case Hearing</heading><content>(a) Commission consideration of the following items is not itself a contested case subject to the Texas Administrative Procedure Act (APA):(1) public comment;(2) executive director's response to comment;(3) request for reconsideration; or(4) request for contested case hearing.(b) The commission will evaluate public comment, executive director's response to comment, requests for reconsideration, and requests for contested case hearing and may:(1) grant or deny the request for reconsideration;(2) determine that a hearing request does not meet the requirements of this subchapter, and act on the application; or(3) determine that a hearing request meets the requirements of this subchapter and:(A) if the request raises disputed issues of fact that were raised during the comment period, that were not withdrawn by the commenter in writing by filing a withdrawal letter with the chief clerk prior to the filing of the Executive Director's Response to Comment, and that are relevant and material to the commission's decision on the application:(i) specify the number and scope of the specific factual issues to be referred to the State Office of Administrative Hearings (SOAH);(ii) specify the maximum expected duration of the hearing; and(iii) direct the chief clerk to refer the issues to SOAH for a hearing; or(B) if the request raises only disputed issues of law or policy, make a decision on the issues and act on the application; or(4) direct the chief clerk to refer the hearing request to SOAH. The referral may specify that SOAH should prepare a recommendation on the sole question of whether the requester is an affected person. If the commission refers the hearing request to SOAH, it shall be processed as a contested case under the APA. If the commission determines that a requester is an affected person, SOAH may proceed with a contested case hearing on the application if either the commission has specified, or the parties have agreed to, the number and scope of the issues and maximum expected duration of the hearing.(c) A request for a contested case hearing shall be granted if the request is:(1) made by the applicant or the executive director;(2) made by an affected person if the request:(A) is on an application filed:(i) before September 1, 2015, and raises disputed issues of fact that:(I) were raised during the comment period;(II) were not withdrawn by the commenter by filing a withdrawal letter with the chief clerk prior to the filing of the executive director's response to comment; and(III) are relevant and material to the commission's decision on the application; or(ii) on or after September 1, 2015, and raises disputed issues of fact or mixed questions of fact or law that:(I) were raised during the comment period by the affected person whose request is granted;(II) were not withdrawn by filing a withdrawal letter with the chief clerk prior to the filing of the executive director's response to comment;, and(III) are relevant and material to the commission's decision on the application;(B) is timely filed with the chief clerk;(C) is pursuant to a right to hearing authorized by law; and(D) complies with the requirements of §55.201 of this title (relating to Requests for Reconsideration or Contested Case Hearing).(d) Notwithstanding any other commission rules, the commission may refer an application to SOAH if the commission determines that:(1) a hearing would be in the public interest; or(2) the application is for an amendment, modification, or renewal of an air permit under Texas Health and Safety Code, §382.0518 or §382.055 that involves a facility for which the applicant's compliance history contains violations which are unresolved and which constitute a recurring pattern of egregious conduct which demonstrates a consistent disregard for the regulatory process, including the failure to make a timely and substantial attempt to correct the violations.(3) the application is for renewal of a hazardous waste permit, subject to §305.65(8) of this title (relating to Renewal) and the applicant's compliance history as determined under Chapter 60 of this title (relating to Compliance History) raises an issue regarding the applicant's ability to comply with a material term of its permit.(4) the application is for renewal or amendment of a wastewater discharge permit and the applicant's compliance history as determined under Chapter 60 of this title raises an issue regarding the applicant's ability to comply with a material term of its permit.(e) If a request for a contested case hearing is granted, a decision on a request for reconsideration or contested case hearing is an interlocutory decision on the validity of the request or issue and is not binding on the issue of designation of parties under §80.109 of this title (relating to Designation of Parties) or the issues referred to SOAH under this section. A judge may consider additional issues beyond the list referred by the commission as provided by §80.4(c)(16) of this title (relating to Judges). A person whose request for reconsideration or contested case hearing is denied may still seek to be admitted as a party under §80.109 of this title if any hearing request is granted on an application. Failure to seek party status shall be deemed a withdrawal of a person's request for reconsideration or hearing request.(f) If all requests for reconsideration or contested case hearing are denied, §80.272 of this title (relating to Motion for Rehearing) applies. A motion for rehearing in such a case must be filed not later than 25 days after the date that the commission's final decision or order is signed, unless the time for filing the motion for rehearing has been extended under Texas Government Code, §2001.142 and §80.276 of this title (relating to Request for Extension to File Motion for Rehearing), by agreement under Texas Government Code, §2001.147, or by the commission's written order issued pursuant to Texas Government Code, §2001.146(e). If the motion is denied under §80.272 and §80.273 of this title (relating to Motion for Rehearing and Decision Final and Appealable) the commission's decision is final and appealable under Texas Water Code, §5.351 or Texas Health and Safety Code, §361.321 or §382.032, or under the APA.(g) If all hearing requesters whose requests for a contested case hearing were granted with regard to an issue, withdraw in writing their hearing requests with regard to the issue before issuance of the notice of the contested case hearing, the scope of the hearing no longer includes that issue except as authorized under §80.4(c)(16) of this title.</content><note type="source"><p>Source Note: The provisions of this §55.211 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective August 29, 2002, 27 TexReg 7822; amended to be effective December 31, 2015, 40 TexReg 9660; amended to be effective February 18, 2026, 51 TexReg 940.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c55/scG"><num value="G">SUBCHAPTER G</num><heading>REQUESTS FOR CONTESTED CASE HEARING AND PUBLIC COMMENT ON CERTAIN APPLICATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c55/scG/s55.250"><num value="55.250">§55.250</num><heading>Applicability</heading><content>This subchapter applies to applications filed with the commission except applications filed under Texas Water Code (TWC), Chapter 26 or 27, Texas Health and Safety Code, Chapter 361 or 382, or TWC, §11.036 or §11.041.</content><note type="source"><p>Source Note: The provisions of this §55.250 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective January 3, 2019, 43 TexReg 8608; amended to be effective February 18, 2026, 51 TexReg 940.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scG/s55.251"><num value="55.251">§55.251</num><heading>Requests for Contested Case Hearing, Public Comment</heading><content>(a) The following may request a contested case hearing under this section:(1) the commission;(2) the executive director;(3) the applicant; and(4) affected persons, when authorized by law.(b) A request for a contested case hearing by an affected person must be in writing and be filed by United States mail, facsimile, or hand delivery with the chief clerk within the time provided by subsection (d) of this section.(c) A hearing request must substantially comply with the following:(1) give the name, address, and daytime telephone number of the person who files the request. If the request is made by a group or association, the request must identify one person by name, address, daytime telephone number and, where possible, a valid email address, who shall be responsible for receiving all official communications and documents for the group.(2) identify the person's personal justiciable interest affected by the application, including a brief, but specific, written statement explaining in plain language the requester's location and distance relative to the activity that is the subject of the application and how and why the requester believes he or she will be affected by the activity in a manner not common to members of the general public;(3) request a contested case hearing; and(4) provide any other information specified in the public notice of application.(d) Deadline for hearing requests; public comment period. A hearing request must be filed with the chief clerk within the time period specified in the notice. The public comment period shall also end at the end of this time period. The time period shall end as specified in §55.152 of this title (relating to Public Comment Period). (e) Documents that are filed with the chief clerk that comment on an application but that do not request a hearing will be treated as public comment.(f) Late filed hearing requests and public comment, extensions.(1) A hearing request or public comment shall be processed under §55.254 of this title (relating to Hearing Request Processing) or under §55.253 of this title (relating to Public Comment Processing), respectively, if it is filed by the deadline for hearing requests and public comment. The chief clerk shall accept a hearing request or public comment that is filed after the deadline but the chief clerk shall not process it. The chief clerk shall place the late documents in the file for the application.(2) The commission may extend the time allowed for filing public comments or a hearing request.</content><note type="source"><p>Source Note: The provisions of this §55.251 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective February 18, 2026, 51 TexReg 940.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scG/s55.252"><num value="55.252">§55.252</num><heading>Request by Group or Association</heading><content>(a) A group or association may request a contested case hearing only if the group or association meets all of the following requirements:(1) one or more members of the group or association would otherwise have standing to request a hearing in their own right;(2) the interests the group or association seeks to protect are germane to the organization's purpose; and(3) neither the claim asserted nor the relief requested requires the participation of the individual members in the case.(b) The executive director, the public interest counsel, or the applicant may request that a group or association provide an explanation of how the group or association meets the requirements of subsection (a) of this section. The request and response shall be filed according to the procedure in §55.254 of this title (relating to Hearing Request Processing).</content><note type="source"><p>Source Note: The provisions of this §55.252 adopted to be effective October 20, 1999, 24 TexReg 9015.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scG/s55.253"><num value="55.253">§55.253</num><heading>Public Comment Processing</heading><content>(a) The chief clerk shall deliver or mail to the applicant, the executive director, the public interest counsel, and the Alternative Dispute Resolution Office, copies of all documents filed with the chief clerk in response to public notice of an application.(b) The commission may designate an agency office to process public comment under this subsection.(1) If the application and timely hearing requests are considered by the commission, the designated office will prepare any required response to public comment, no later than ten days before the commission meeting at which the commission will evaluate the hearing requests. The response shall be made available to the public and filed with the chief clerk.(2) If the application is approved by the executive director under Chapter 50, Subchapter G of this title (relating to Action by the Executive Director), any required response to public comment should be made no later than the time of the executive director's action on the application.(c) The Office of Chief Clerk or the executive director shall hold a public meeting when there is a significant degree of public interest or when otherwise appropriate to assure adequate public participation. A public meeting is intended for the taking of public comment and is not a contested case under the Texas Administrative Procedure Act. The applicant shall attend any such public meeting held by the Office of the Chief Clerk or the executive director. The executive director shall respond to public comment either by giving an immediate oral response at the public meeting or by preparing a written response. The response shall be made available to the public.</content><note type="source"><p>Source Note: The provisions of this §55.253 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective May 14, 2020, 45 TexReg 3079.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scG/s55.254"><num value="55.254">§55.254</num><heading>Hearing Request Processing</heading><content>(a) The requirements in this section and §55.255 of this title (relating to Commission Action on Hearing Request) apply only to hearing requests that are filed within the time period specified in §55.251(d) of this title (relating to Requests for Contested Case Hearing, Public Comment).(b) The executive director shall file a statement with the chief clerk indicating that technical review of the application is complete. The executive director will file the statement with the chief clerk either before or after public notice of the application is issued.(c) After a hearing request is filed and the executive director has filed a statement that technical review of the application is complete, the chief clerk shall process the hearing request by both:(1) referring the application and hearing request to the alternative dispute resolution director. The alternative dispute resolution director shall try to resolve any dispute between the applicant and the person making the request for hearing; and(2) scheduling the hearing request for a commission meeting. The chief clerk shall attempt to schedule the request for a commission meeting that will be held approximately 44 days after the later of the following:(A) the deadline to request a hearing specified in the public notice of the application; or(B) the date the executive director filed the statement that technical review is complete.(d) The chief clerk shall mail notice to the applicant, executive director, public interest counsel, and the persons making a timely hearing request at least 35 days before the first meeting at which the commission considers the request. The chief clerk shall explain how the person may submit public comment to the executive director, describe alternative dispute resolution under commission rules, explain that the agency may hold a public meeting, and explain the requirements of this chapter.(e) The executive director, the public interest counsel, and the applicant may submit written responses to the hearing request no later than 12 days after the chief clerk mails notice of the first meeting at which the commission will consider the hearing request, unless extended by the general counsel. Each party shall file its response with the chief clerk. On the same day, each party shall serve the applicant, the executive director, the public interest counsel, the External Relations Division, and any persons filing hearing requests its response or notice that its response is available electronically on the commission's website along with instructions for accessing the responses and requesting a mailed copy.(f) The person who filed the hearing request may submit a written reply to a response no later than 26 days after the chief clerk mails notice of the first meeting at which the commission will consider the hearing request, unless extended by the general counsel. A reply may also contain additional information responding to the letter by the chief clerk required by subsection (d) of this section. The requester shall file its reply with the chief clerk. On the same day, the requester shall serve to the executive director, the public interest counsel, and the applicant its reply or notice that its reply is available electronically on the commission's website.(g) The executive director or the applicant may file a request with the chief clerk that the application be sent directly to the State Office of Administrative Hearings (SOAH) for a hearing on the application. If a request is filed under this subsection, the commission's scheduled consideration of the hearing request will be canceled. An application may only be sent to SOAH under this subsection if the executive director, the applicant, the public interest counsel, and all timely hearing requesters agree on a list of issues and a maximum expected duration of the hearing.</content><note type="source"><p>Source Note: The provisions of this §55.254 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective May 14, 2020, 45 Texeg 3079; amended to be effective February 18, 2026, 51 TexReg 940.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scG/s55.255"><num value="55.255">§55.255</num><heading>Commission Action on Hearing Request</heading><content>(a) The determination of the validity of a hearing request is not, in itself, a contested case subject to the Texas Administrative Procedure Act (APA). The commission will evaluate the hearing request at the scheduled commission meeting, and may:(1) determine that a hearing request does not meet the requirements of this subchapter, and act on the application;(2) determine that the hearing request does not meet the requirements of this subchapter, and refer the application to a public meeting to develop public comment before acting on the application;(3) determine that a hearing request meets the requirements of this subchapter, and direct the chief clerk to refer the application to the State Office of Administrative Hearings (SOAH) for a hearing; or(4) direct the chief clerk to refer the hearing request to SOAH. The referral may specify that SOAH should prepare a recommendation on the sole question of whether the request meets the requirements of this subchapter. The referral may also direct SOAH to proceed with a hearing on the application if the judge finds that a hearing request meets the requirements of this chapter. If the commission refers the hearing request to SOAH it shall be processed as a contested case under the APA.(b) A request for a contested case hearing shall be granted if the request is:(1) made by the applicant or the executive director; or(2) made by an affected person if the request:(A) complies with the requirements of §55.251 of this title (relating to Requests for Contested Case Hearing, Public Comment);(B) is timely filed with the chief clerk; and(C) is pursuant to a right to hearing authorized by law.(c) The commission may refer an application to SOAH if there is no hearing request complying with this subchapter, if the commission determines that a hearing would be in the public interest.(d) A decision on a hearing request is an interlocutory decision on the validity of the request and is not binding on the issue of designation of parties under §80.109 of this title (relating to Designation of Parties). A person whose hearing request is denied may still seek to be admitted as a party under §80.109 of this title if any hearing request is granted on an application. Failure to seek party status shall be deemed a withdrawal of a person's hearing request.(e) If all requests for contested case hearing are denied, §80.272 of this title (relating to Motion for Rehearing) applies. A motion for rehearing in such a case must be filed not later than 25 days after the date that the commission's final decision or order is signed, unless the time for filing the motion for rehearing has been extended under Texas Government Code, §2001.142 and §80.276 of this title (relating to Request for Extension to File Motion for Rehearing), by agreement under Texas Government Code, §2001.147, or by the commission's written order issued pursuant to Texas Government Code, §2001.146(e). If the motion is denied under §80.272 and §80.273 of this title (relating to Motion for Rehearing and Decision Final and Appealable), the commission's decision is final and appealable under Texas Water Code, §5.351, Texas Health and Safety Code, §401.341, or under the APA.</content><note type="source"><p>Source Note: The provisions of this §55.255 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective March 24, 2016, 41 TexReg 2174.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c55/scG/s55.256"><num value="55.256">§55.256</num><heading>Determination of Affected Person</heading><content>(a) For any application, an affected person is one who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the application. An interest common to members of the general public does not qualify as a personal justiciable interest.(b) Except as provided by §55.103 of this title (relating to Definitions), governmental entities, including local governments and public agencies, with authority under state law over issues contemplated by the application may be considered affected persons.(c) All relevant factors shall be considered, including, but not limited to, the following:(1) whether the interest claimed is one protected by the law under which the application will be considered;(2) distance restrictions or other limitations imposed by law on the affected interest;(3) whether a reasonable relationship exists between the interest claimed and the activity regulated;(4) likely impact of the regulated activity on the health, safety, and use of property of the person;(5) likely impact of the regulated activity on use of the impacted natural resource by the person; and(6) for governmental entities, their statutory authority over or interest in the issues relevant to the application.</content><note type="source"><p>Source Note: The provisions of this §55.256 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective May 3, 2012, 37 TexReg 3133.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c60"><num value="60">CHAPTER 60</num><heading>COMPLIANCE HISTORY</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c60/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c60/sc/s60.1"><num value="60.1">§60.1</num><heading>Compliance History</heading><content>(a) Applicability. The provisions of this chapter are applicable to all persons subject to the requirements of Texas Water Code (TWC), Chapters 26, 27, and 32 and Texas Health and Safety Code (THSC), Chapters 361, 375, 382, and 401.(1) Specifically, the agency will utilize compliance history when making decisions regarding: (A) the issuance, renewal, amendment, modification, denial, suspension, or revocation of a permit; (B) enforcement; (C) the use of announced investigations; and(D) participation in innovative programs.(2) For purposes of this chapter, the term "permit" means licenses, certificates, registrations, approvals, permits by rule, standard permits, or other forms of authorization. (3) With respect to authorizations, this chapter only applies to forms of authorization, including temporary authorizations, that require some level of notification to the agency, and which, after receipt by the agency, requires the agency to make a substantive review of and approval or disapproval of the authorization required in the notification or submittal. For the purposes of this rule, "substantive review of and approval or disapproval" means action by the agency to determine, prior to issuance of the requested authorization, and based on the notification or other submittal, whether the person making the notification has satisfied statutory or regulatory criteria that are prerequisites to issuance of such authorization. The term "substantive review or response" does not include confirmation of receipt of a submittal. (4) Notwithstanding paragraphs (2) and (3) of this subsection, this chapter does not apply to certain permit actions such as: (A) voluntary permit revocations; (B) minor amendments and nonsubstantive corrections to permits; (C) Texas pollutant discharge elimination system and underground injection control minor permit modifications; (D) Class 1 solid waste modifications, except for changes in ownership; (E) municipal solid waste Class I modifications, except for temporary authorizations and municipal solid waste Class I modifications requiring public notice; (F) permit alterations; (G) administrative revisions; and (H) air quality new source review permit amendments which meet the criteria of §39.402(a)(3)(A) - (C) and (5)(A) - (C) of this title (relating to Applicability to Air Quality Permits and Permit Amendments) and minor permit revisions under Chapter 122 of this title (relating to Federal Operating Permits Program). (5) Further, this chapter does not apply to occupational licensing programs under the jurisdiction of the commission. (6) This rule will become effective on September 1, 2026. The executive director shall continue in effect the standards and use of compliance history for any action (permitting, enforcement, or otherwise) that were in effect before the effective date of the rule. (7) , this chapter shall apply to the use of compliance history in agency decisions relating to: (A) applications submitted on or after this date for the issuance, amendment, modification, or renewal of permits; (B) inspections and flexible permitting; (C) a proceeding that is initiated or an action that is brought on or after this date for the suspension or revocation of a permit or the imposition of a penalty in a matter under the jurisdiction of the commission; and (D) applications submitted on or after this date for other forms of authorization, or participation in an innovative program, except for flexible permitting. (8) If a motion for reconsideration or a motion to overturn is filed under §50.39 or §50.139 of this title (relating to Motion for Reconsideration; and Motion to Overturn Executive Director's Decision) with respect to any of the actions listed in paragraph (4) of this subsection, and is set for commission agenda, a compliance history shall be prepared by the executive director and filed with the Office of the Chief Clerk no later than six days before the Motion is considered on the commission agenda. (b) Compliance period. The compliance history period includes the five years prior to the date the permit application is received by the executive director; the five-year period preceding the date of the initial enforcement screening; for purposes of determining whether an announced investigation is appropriate, the five-year period preceding an investigation; or the five years prior to the date the application for participation in an innovative program is received by the executive director. The compliance history period may be extended beyond the date the application for the permit or participation in an innovative program is received by the executive director, up through completion of review of the application. Notices of violation may only be used as a component of compliance history for a period not to exceed one year from the date of issuance. (c) Components. The compliance history shall include multimedia compliance-related information about a person, specific to the site which is under review, as well as other sites which are owned or operated by the same person. The components are: (1) any final enforcement orders, court judgments, and criminal convictions of this state relating to compliance with applicable legal requirements under the jurisdiction of the commission. "Applicable legal requirement" means an environmental law, regulation, permit, order, consent decree, or other requirement; (2) notwithstanding any other provision of the TWC, orders developed under TWC, §7.070 and approved by the commission on or after February 1, 2002; (3) to the extent readily available to the executive director, final enforcement orders, court judgments, consent decrees, and criminal convictions relating to violations of environmental rules of the United States Environmental Protection Agency; (4) chronic excessive emissions events. For purposes of this chapter, the term "emissions event" is the same as defined in THSC, §382.0215(a); (5) any information required by law or any compliance-related requirement necessary to maintain federal program authorization; (6) the dates of investigations; (7) all written notices of violation for a period not to exceed one year from the date of issuance of each notice of violation, including written notification of a violation from a regulated person, issued on or after September 1, 1999, except for those administratively determined to be without merit; (8) the date of letters notifying the executive director of an intended audit conducted and any violations disclosed and having received immunity under the Texas Environmental, Health, and Safety Audit Privilege Act (Audit Act), 85th Legislature, 2017, TEX. HEALTH AND SAFETY CODE ch. 1101; (9) an environmental management system approved under Chapter 90 of this title (relating to Innovative Programs), if any, used for environmental compliance; (10) any voluntary on-site compliance assessments conducted by the executive director under a special assistance program; (11) participation in a voluntary pollution reduction program; and (12) a description of early compliance with or offer of a product that meets future state or federal government environmental requirements. (d) Change in ownership. In addition to the requirements in subsections (b) and (c) of this section, if ownership of the site changed during the five-year compliance period, a distinction of compliance history of the site under each owner during that five-year period shall be made. Specifically, for any part of the compliance period that involves a previous owner, the compliance history will include only the site under review. For the purposes of this rule, a change in operator shall be considered a change in ownership if the operator is a co-permittee.</content><note type="source"><p>Source Note: The provisions of this §60.1 adopted to be effective January 9, 2002, 27 TexReg 191; amended to be effective June 24, 2010, 35 TexReg 5277; amended to be effective July 19, 2012, 37 TexReg 5283; amended to be effective May 14, 2020, 45 TexReg 3082; amended to be effective February 4, 2026, 51 TexReg 607.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c60/sc/s60.2"><num value="60.2">§60.2</num><heading>Classification</heading><content>(a) Classifications. Beginning September 1, 2002, the executive director shall evaluate the compliance history of each site and classify each site and person as needed for the actions listed in §60.1(a)(1) of this title (relating to Compliance History). On September 1, 2026, and semi-annually thereafter, the executive director shall evaluate the compliance history of each site, and classify each site and person. For the purposes of classification in this chapter, and except with regard to portable units, "site" means all regulated units, facilities, equipment, structures, or sources at one street address or location that are owned or operated by the same person. Site includes any property identified in the permit or used in connection with the regulated activity at the same street address or location. A "site" for a portable regulated unit or facility is any location where the unit or facility is or has operated. Each site and person shall be classified as: (1) a high performer, which has an above-satisfactory compliance record; (2) a satisfactory performer, which generally complies with environmental regulations; or (3) an unsatisfactory performer, which performs below minimal acceptable performance standards established by the commission. (b) Inadequate information. For purposes of this rule, "inadequate information" shall be defined as no compliance information. If there is no compliance information about the site at the time the executive director develops the compliance history classification, then the classification shall be designated as "unclassified." The executive director may conduct an investigation to develop a compliance history. (c) Groupings. Sites will be divided into groupings based on complexity or other information available to the executive director. The complexity calculation is described in subsection (e) of this section (relating to Classification).(d) Major, moderate, and minor violations. In classifying a site's compliance history, the executive director shall determine whether a documented violation of an applicable legal requirement is of major, moderate, or minor significance. (1) Major violations are: (A) a violation of a commission enforcement order, court order, or consent decree; (B) operating without required authorization or using a facility that does not possess required authorization; (C) an unauthorized release, emission, or discharge of pollutants that caused, or occurred at levels or volumes sufficient to cause, adverse effects on human health, safety, or the environment; (D) falsification of data, documents, or reports; and (E) any violation included in a criminal conviction, which required the prosecutor to prove a culpable mental state or a level of intent to secure the conviction. (2) Moderate violations are: (A) complete or substantial failure to monitor, analyze, or test a release, emission, or discharge, as required by a commission rule or permit; (B) complete or substantial failure to submit or maintain records, as required by a commission rule or permit; (C) not having an operator whose level of license, certification, or other authorization is adequate to meet applicable rule requirements; (D) any unauthorized release, emission, or discharge of pollutants that is not classified as a major violation; (E) complete or substantial failure to conduct a unit or facility inspection, as required by a commission rule or permit; (F) any violation included in a criminal conviction, for a strict liability offense, in which the statute plainly dispenses with any intent element needed to be proven to secure the conviction; and (G) maintaining or operating regulated units, facilities, equipment, structures, or sources in a manner that could cause an unauthorized or noncompliant release, emission, or discharge of pollutants. (3) Minor violations are: (A) performing most, but not all, of a monitoring or testing requirement, including required unit or facility inspections; (B) performing most, but not all, of an analysis or waste characterization requirement; (C) performing most, but not all, of a requirement addressing the submittal or maintenance of required data, documents, notifications, plans, or reports; and (D) maintaining or operating regulated units, facilities, equipment, structures, or sources in a manner not otherwise classified as moderate. (e) Complexity Points. All sites classified shall have complexity points as follows:(1) Program Participation Points. A site shall be assigned Program Participation Points based upon its types of authorizations, as follows: (A) four points for each permit type listed in clauses (i) - (viii) of this subparagraph issued to a person at a site: (i) Radioactive Waste Disposal; (ii) Hazardous or Industrial Non-Hazardous Storage Processing or Disposal; (iii) Municipal Solid Waste Type I; (iv) Prevention of Significant Deterioration; (v) Phase I--Municipal Separate Storm Sewer System; (vi) Texas Pollutant Discharge Elimination System (TPDES) or National Pollutant Discharge Elimination System (NPDES) Industrial or Municipal Major; (vii) Nonattainment New Source Review; and(viii) Underground Injection Control Class I/III; (B) three points for each type of authorization listed in clauses (i) - (iv) of this subparagraph issued to a person at a site: (i) Municipal Solid Waste Type I AE; (ii) Municipal Solid Waste Type IV, V, or VI; (iii) Municipal Solid Waste Type IV AE; and(iv) TPDES or NPDES Industrial or Municipal Minor; (C) two points for each permit type listed in clauses (i) - (iii) of this subparagraph issued to a person at a site or utilized by a person at a site: (i) Title V Federal Operating Permit;(ii) New Source Review individual permit; and (iii) any other individual site-specific water quality permit not referenced in subparagraph (A) or (B) of this paragraph or any water quality general permit; (D) one point for each type of authorization listed in clauses (i) - (xiii) of this subparagraph issued to a person at a site or utilized by a person at a site: (i) Edwards Aquifer authorization;(ii) Enclosed Structure permit or registration relating to the use of land over a closed Municipal Solid Waste landfill; (iii) Industrial Hazardous Waste registration;(iv) Municipal Solid Waste Tire Registrations;(v) Other types of Municipal Solid Waste permits or registrations not listed in subparagraphs (A) - (C) of this paragraph;(vi) Petroleum Storage Tank registration;(vii) Radioactive Waste Storage or Processing license;(viii) Sludge registration or permit;(ix) Stage II Vapor Recovery registration;(x) Municipal Solid Waste Type IX;(xi) Permit by Rule requiring submission of an application under Chapter 106 of this title (relating to Permits by Rule); (xii) Uranium license; and(xiii) Air Quality Standard Permits. (2) Size. Every site shall be assigned points based upon size as determined by the following: (A) Facility Identification Numbers (FINs): The total number of FINS at a site will be multiplied by 0.02 and rounded up to the nearest whole number.(B) Water Quality external outfalls: (i) 10 points for a site with ten or more external outfalls; (ii) 5 points for a site with at least five, but fewer than ten, external outfalls; (iii) 3 points for sites with at least two, but fewer than five, external outfalls; and (iv) 1 point for sites with one external outfall; (C) Active Hazardous Waste Management Units (AHWMUs): (i) 10 points for sites with 50 or more AHWMUs; (ii) 5 points for sites with at least 20, but fewer than 50, AHWMUs; (iii) 3 points for sites with at least ten, but fewer than 20, AHWMUs; and (iv) 1 point for sites with at least one but fewer than ten AHWMUs. (D) Small Entities shall receive 3 points. A small entity is defined as: a city with a population of less than 5,000; a county with a population of less than 25,000; or a small business. A small business is defined as any person, firm, or business which employs, by direct payroll and/or through contract, fewer than 100 full-time employees. A business that is a wholly owned subsidiary of a corporation shall not qualify as a small business if the parent organization does not qualify as a small business.(E) Underground Storage Tanks (USTs) and Aboveground Storage Tanks (ASTs):(i) 4 points for sites with 11 or more USTs; (ii) 3 points for sites with five to ten USTs; (iii) 3 points for sites with more than 11 ASTs; (iv) 2 points for sites with three to four USTs;(v) 2 points for sites with three to ten, ASTs; (vi) 1 point for sites with one to two USTs; and(vii) 1 point for sites with one to two ASTs. (3) Nonattainment area points. Every site located in a nonattainment area shall be assigned 1 point.(4) The subtotals from paragraphs (1) - (3) of this subsection shall be summed. (f) Repeat violator. (1) Repeat violator criteria. A person may be classified as a repeat violator at a site when multiple major, moderate, or minor violations of the same nature and the same environmental media occurs during the preceding five-year compliance period. Same nature is defined as violations that have the same root citation at the subsection level. For example, all rules under §334.50 of this title (relating to Release Detection) (e.g. §334.50(a) or (b)(2) of this title) would be considered same nature. The total complexity points for a site equals the sum of points assigned to a specific site in subsection (e) of this section. (2) Repeat violation points. Each repeat violation will be: (A) Assigned 2 points for each minor violation as documented in any final enforcement orders, court judgments, and criminal convictions; (B) Assigned 10 points for each moderate violation as documented in any final enforcement orders, court judgments, and criminal convictions; and (C) Assigned 50 points for each major violation as documented in any final enforcement orders, court judgments, and criminal convictions. (3) A person is a repeat violator at a site when the number of repeat violation points is: (A) Equal to or greater than 550 for sites with 60 or more complexity points; or, (B) Equal to or greater than 450 for sites with 45 to 59 complexity points; or, (C) Equal to or greater than 350 for sites with 30 to 44 complexity points; or,(D) Equal to or greater than 250 for sites with 15 to 29 complexity points; or,(E) Equal to or greater than 150 for sites with less than 15 complexity points. (4) Repeat violator exemption. The executive director shall designate a person as a repeat violator as provided in this subsection, unless the executive director determines the nature of the violations and the conditions leading to the violations do not warrant the designation. (g) Formula. The executive director shall determine a site rating based upon the following method. (1) Site rating. For the time period reviewed, the following calculations shall be performed based upon the compliance history at the site. (A) The number of major violations contained in: (i) any adjudicated final court judgments and default judgments, shall be multiplied by 160; (ii) any non-adjudicated final court judgments or consent decrees without a denial of liability shall be multiplied by 140; (iii) any non-adjudicated final court judgments or consent decrees containing a denial of liability, adjudicated final enforcement orders, and default orders, shall be multiplied by 120; (iv) any final prohibitory emergency orders issued by the commission shall be multiplied by 120; (v) any agreed final enforcement orders without a denial of liability shall be multiplied by 100; and (vi) any agreed final enforcement orders containing a denial of liability shall be multiplied by 80. (B) The number of moderate violations contained in: (i) any adjudicated final court judgments and default judgments shall be multiplied by 115; (ii) any non-adjudicated final court judgments or consent decrees without a denial of liability shall be multiplied by 95; (iii) any non-adjudicated final court judgments or consent decrees containing a denial of liability, adjudicated final enforcement orders, and default orders, shall be multiplied by 75; (iv) any agreed final enforcement orders without a denial of liability shall be multiplied by 60; and (v) any agreed final enforcement orders containing a denial of liability shall be multiplied by 45. (C) The number of minor violations contained in: (i) any adjudicated final court judgments and default judgments shall be multiplied by 45; (ii) any non-adjudicated final court judgments or consent decrees without a denial of liability shall be multiplied by 35; (iii) any non-adjudicated final court judgments or consent decrees containing a denial of liability, adjudicated final enforcement orders, and default orders, shall be multiplied by 25; (iv) any agreed final enforcement orders without a denial of liability shall be multiplied by 20; and (v) any agreed final enforcement orders containing a denial of liability shall be multiplied by 15. (D) The total number of points assigned for all resolved violations in subparagraphs (A) - (C) of this paragraph will be reduced based on achievement of compliance with all ordering provisions. For the first two years after the effective date of the enforcement order(s), court judgment(s), consent decree(s), and criminal conviction(s), the site will receive the total number of points assigned for violations in subparagraphs (A) - (C) of this paragraph. If all violations in subparagraphs (A) - (C) of this paragraph are resolved and compliance with all ordering provisions is achieved, for each enforcement order(s), court judgment(s), consent decree(s), and criminal conviction(s) : (i) under two years old, the points associated with the violations in subparagraphs (A) - (C) of this paragraph will be multiplied by 1.0; (ii) over two years old, the points associated with the violations in subparagraphs (A) - (C) of this paragraph will be multiplied by 0.75; (iii) over three years old, the points associated with the violations in subparagraphs (A) - (C) of this paragraph will be multiplied by 0.50; and(iv) over four years old, the points associated with the violations in subparagraphs (A) - (C) of this paragraph will be multiplied by 0.25. (E) The number of major violations contained in any notices of violation shall be multiplied by 10. (F) The number of moderate violations contained in any notices of violation shall be multiplied by 4. (G) The number of minor violations contained in any notices of violation shall be multiplied by 1. (H) The number of counts in all criminal convictions: (i) under Texas Water Code (TWC), §§7.145, 7.152, 7.153, 7.162(a)(1) - (5), 7.163(a)(1) - (3), 7.164, 7.168 - 7.170, 7.176, 7.182, 7.183, and all felony convictions under the Texas Penal Code, TWC, Texas Health and Safety Code (THSC), or the United States Code (USC) shall be multiplied by 500; and (ii) under TWC, §§7.147 - 7.151, 7.154, 7.157, 7.159, 7.160, 7.162(a)(6) - (8), 7.163(a)(4), 7.165 - 7.167, 7.171, 7.177 - 7.181, and all misdemeanor convictions under the Texas Penal Code, TWC, THSC, or the USC shall be multiplied by 250. (I) The number of chronic excessive emissions events shall be multiplied by 100. (J) The subtotals from subparagraphs (A) - (I) of this paragraph shall be summed. (K) If the person is a repeat violator as determined under subsection (f) of this section, then 500 points shall be added to the total in subparagraph (J) of this paragraph. If the person is not a repeat violator as determined under subsection (f) of this section, then zero points shall be added to the total in subparagraph (J) of this paragraph. (L) If the total in subparagraph (K) of this paragraph is greater than zero, then: (i) subtract 1 point from the total in subparagraph (K) of this paragraph for each notice of an intended audit conducted under the Audit Act submitted to the agency during the compliance period; or (ii) if a violation(s) was disclosed as a result of an audit conducted under the Audit Act; as amended, and the site received immunity from an administrative or civil penalty for that violation(s) by the agency, then the following number(s) shall be subtracted from the total in subparagraph (K) of this paragraph: (I) the number of major violations multiplied by 10; (II) the number of moderate violations multiplied by 4; and (III) the number of minor violations multiplied by 1. (M) The result of the calculations in subparagraphs (J) - (L) of this paragraph shall be divided by the number of investigations conducted during the compliance period multiplied by 0.1 plus the number of complexity points in subsection (e) of this section. If a site does not have any investigation points and the subtotal from subsection (e)(1) - (3) of this section equals zero, then one default point shall be used. Investigations that do not document any violations will be the only ones counted in the compliance history formula. The number of investigations multiplied by 0.1 shall be rounded up to the nearest whole number. If the value is less than zero, then the site rating shall be assigned a value of zero. For the purposes of this chapter, an investigation is a review or evaluation of information by the executive director or executive director's staff or agent regarding the compliance status of a site, excluding those investigations initiated by citizen complaints. An investigation, for the purposes of this chapter, may take the form of a site assessment, file or record review, compliance investigation, or other review or evaluation of information. (N) If the person receives certification of an environmental management system (EMS) under Chapter 90 of this title (relating to Innovative Programs) and has implemented the EMS at the site for more than one year, then multiply the result in subparagraph (M) of this paragraph by 0.90, which is (1 - 0.10) and this is the maximum reduction that can be received for an EMS. If the person receives credit for a voluntary pollution reduction program or for early compliance, then multiply the result in subparagraph (M) of this paragraph by 0.95, which is (1 - 0.05). The maximum reduction that a site's compliance history may be reduced through voluntary pollution reduction programs in this subparagraph is 0.85, which is (1 - 0.15). If site participates in both EMS and voluntary pollution reduction programs then the maximum reduction that a site's compliance history may be reduced through EMS and voluntary programs in this subparagraph is 0.75, which is (1 - 0.10 - 0.15). (2) Point ranges. The executive director shall assign the site a classification based upon the compliance history and application of the formula in paragraph (1) of this subsection to determine a site rating, utilizing the following site rating ranges for each classification: (A) For entities with less than 15 complexity points: (i) fewer than 0.10 points--high performer; (ii) 0.10 points to 60 points--satisfactory performer; and (iii) more than 60 points--unsatisfactory performer. (B) For entities with 15 or more complexity points: (i) fewer than 0.10 points--high performer; (ii) 0.10 points to 55 points€"satisfactory performer; and (iii) more than 55 points€"unsatisfactory performer.(3) Mitigating factors. The executive director shall evaluate mitigating factors for a site classified as an unsatisfactory performer. (A) The executive director may reclassify the site from unsatisfactory to satisfactory performer based upon the following mitigating factors: (i) other compliance history components included in §60.1(c)(10) - (12) of this title; (ii) implementation of an EMS not certified under Chapter 90 of this title at a site for more than one year; (iii) a person, all of whose other sites have a high or satisfactory performer classification, purchased a site with an unsatisfactory performer classification or became permitted to operate a site with an unsatisfactory performer classification if the person entered into a compliance agreement with the executive director regarding actions to be taken to bring the site into compliance prior to the effective date of this rule; and (iv) voluntarily reporting a violation to the executive director that is not otherwise required to be reported and that is not reported under the Audit Act, or that is reported under the Audit Act but is not granted immunity from an administrative or civil penalty for that violation(s) by the agency. (B) When a person, all of whose other sites have a high or satisfactory performer classification, purchased a site with an unsatisfactory performer classification or became permitted to operate a site with an unsatisfactory performer classification and the person contemporaneously entered into a compliance agreement with the executive director regarding actions to be taken to bring the site into compliance, the executive director: (i) shall reclassify the site from unsatisfactory performer to satisfactory performer until such time as the next semi-annual compliance history classification is performed; and (ii) may, at the time of subsequent compliance history classifications, reclassify the site from unsatisfactory performer to satisfactory performer based upon the executive director's evaluation of the person's compliance with the terms of the compliance agreement. (h) Person classification. The executive director shall assign a classification to a person by adding the complexity weighted site ratings of all the sites owned and/or operated by that person in the State of Texas. Each site that a person is affiliated to will receive a point value based on the compliance history rating at the site multiplied by the percentage of complexity points that site represents of the person's total complexity points for all sites. Each of these calculated amounts will be added together to determine the person's compliance history rating. (i) Notice of classifications. Notice of person and site classifications shall be posted on the commission's website after 30 days from the completion of the classification. The notice of classification shall undergo a quality assurance, quality control review period. An owner or operator of a site may review the pending compliance history rating upon request by registering for the Advanced Review of Compliance History.</content><note type="source"><p>Source Note: The provisions of this §60.2 adopted to be effective August 29, 2002, 27 TexReg 7824; amended to be effective July 19, 2012, 37 TexReg 5283; amended to be effective February 4, 2026, 51 TexReg 607.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c60/sc/s60.3"><num value="60.3">§60.3</num><heading>Use of Compliance History</heading><content>(a) Permitting.(1) Permit actions subject to compliance history review. For permit actions subject to compliance history review identified in §60.1(a) of this title (relating to Compliance History), the agency shall consider compliance history when preparing draft permits and when deciding whether to issue, renew, amend, modify, deny, suspend, or revoke a permit by evaluating the person's:(A) site-specific compliance history and classification; and(B) aggregate compliance history and classification, especially considering patterns of environmental compliance.(2) Review of permit application. In the review of any application for a new, amended, modified, or renewed permit, the executive director or commission may require permit conditions or provisions to address an applicant's compliance history. Unsatisfactory performers are subject to any additional oversight necessary to improve environmental compliance.(3) Unsatisfactory performers and repeat violators.(A) If a site is classified as an unsatisfactory performer, the agency shall:(i) deny or suspend a person's authority relating to that site to discharge under a general permit issued under Chapter 205 of this title (relating to General Permits for Waste Discharges); and(ii) deny a permit relating to that site for, or renewal of, a flexible permit under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification).(B) If a site is classified as an unsatisfactory performer, upon application for a permit, permit renewal, modification, or amendment relating to that site, the agency may take the following actions, including:(i) deny or amend a solid waste management facility permit;(ii) deny an original or renewal solid waste management facility permit; or(iii) hold a hearing on an air permit amendment, modification, or renewal, and, as a result of the hearing, deny, amend, or modify the permit.(C) If a site is classified as an unsatisfactory performer or repeat violator and the agency determines that a person's compliance history raises an issue regarding the person's ability to comply with a material term of its hazardous waste management facility permit, then the agency shall provide an opportunity to request a contested case hearing for applications meeting the criteria in §305.65(9) of this title (relating to Renewal).(D) Upon application for permit renewal or amendment, the commission may deny, modify, or amend a permit of a repeat violator.(E) The commission shall deny an application for permit or permit amendment when the person has an unacceptable compliance history based on violations constituting a recurring pattern of conduct that demonstrates a consistent disregard for the regulatory process, including a failure to make a timely and substantial attempt to correct the violation(s). This includes violation of provisions in commission orders or court injunctions, judgments, or decrees designed to protect human health or the environment.(4) Additional use of compliance history.(A) The commission may consider compliance history when:(i) evaluating an application to renew or amend a permit under Texas Water Code (TWC), Chapter 26;(ii) considering the issuance, amendment, or renewal of a preconstruction permit, under Texas Health and Safety Code (THSC), Chapter 382; and(iii) making a determination whether to grant, deny, revoke, suspend, or restrict a license or registration under THSC, Chapter 401.(B) The commission shall consider compliance history when:(i) considering the issuance, amendment, or renewal of a permit to discharge effluent comprised primarily of sewage or municipal waste;(ii) considering if the use or installation of an injection well for the disposal of hazardous waste is in the public interest under TWC, Chapter 27;(iii) determining whether and under which conditions a preconstruction permit should be renewed; and(iv) making a licensing decision on an application to process or dispose of low-level radioactive waste from other persons.(5) Revocation or suspension of a permit. Compliance history classifications shall be used in commission decisions relating to the revocation or suspension of a permit.(6) Repeat violator permit revocation. In addition to the grounds for revocation or suspension under TWC, §7.302 and §7.303, the commission may revoke a permit of a repeat violator if classified as an unsatisfactory performer, or for cause, including:(A) a criminal conviction classified as major under §60.2(d)(1)(E) of this title (relating to Classification);(B) an unauthorized release, emission, or discharge of pollutants classified as major under §60.2(d)(1)(C) of this title;(C) repeatedly operating without required authorization; or(D) documented falsification.(b) Investigations. If a site is classified as an unsatisfactory performer, then the agency:(1) may provide technical assistance to the person to improve the person's compliance with applicable legal requirements;(2) may increase the number of investigations performed at the site; and(3) may perform any investigations unannounced.(c) Enforcement. For enforcement decisions, the commission may address compliance history and repeat violator issues through both penalty assessment and technical requirements.(1) Unsatisfactory performers are subject to any additional oversight necessary to improve environmental compliance.(2) The commission shall consider compliance history classification when assessing an administrative penalty.(3) The commission shall enhance an administrative penalty assessed on a repeat violator.(d) Participation in innovative programs. If the site is classified as an unsatisfactory performer, then the agency:(1) may recommend technical assistance; or(2) may provide assistance or oversight in development of an environmental management system (EMS) and require specific environmental reporting to the agency as part of the EMS; and(3) shall prohibit that person from participating in the regulatory flexibility program at that site. In addition, an unsatisfactory performer is prohibited from receiving additional regulatory incentives under its EMS until its compliance history classification has improved to at least a satisfactory performer.(e) Appeal of classification. A person or site classification may be appealed only if the person or site is classified as either an unsatisfactory performer, a repeat violator, or a satisfactory performer with 45 points or more. An appeal under this subsection shall be subject to the following procedures.(1) An appeal shall be filed with the executive director no later than 45 days after notice of the classification is posted on the commission's website.(2) An appeal shall state the grounds for the appeal and the specific relief sought. The appeal must demonstrate that if the specific relief sought is granted, a change in site or person classification will result. The appeal must also include all documentation and argument in support of the appeal.(3) Upon filing, the appellant shall serve a copy of the appeal including all supporting documentation by certified mail, return receipt requested, as provided in subparagraphs (A) and (B) of this paragraph.(A) If an appeal of a person's classification is filed by a person other than the person classified, a copy shall be served on the person classified.(B) If an appeal of a site classification is filed by a person other than the permit holder(s) or the owner of the classified site, a copy shall be served on the owner and permit holder (if different) of the classified site.(4) Any replies to an appeal must be filed no later than 15 days after the filing of the appeal.(5) In response to a timely filed appeal and any replies, the executive director may affirm or modify the classification.(6) The executive director shall mail notice of his decision to affirm or modify the classification to the appellant, any person filing a reply, and the persons identified in paragraph (3)(A) and (B) of this subsection no later than 60 days after the filing of the appeal. An appeal is automatically denied on the 61st day after the filing of the appeal unless the executive director mails notice of his decision before that day.(7) The executive director's decision is effective and for purposes of judicial review, constitutes final and appealable commission action on the date the executive director mails notice of his decision or the date the appeal is automatically denied.(8) During the pendency of an appeal to the executive director or judicial review of the executive director's decision under this subsection, the agency shall not, for the person or site for which the classification is under appeal or judicial review:(A) conduct an announced investigation;(B) grant or renew a flexible permit under THSC, Chapter 382;(C) allow participation in the regulatory flexibility program under TWC, §5.758; or(D) grant authority to discharge under a general permit under TWC, §26.040(h).(f) Corrections of classifications. The executive director, on his own motion or the request of any person, at any time may correct any clerical errors in person or site classifications. If a person classification is corrected, the executive director shall notify the person whose classification has been corrected. If a site classification is corrected, the executive director shall notify the site owner and permit holder (if different). If the correction results in a change to a classification that is subject to appeal under subsection (e) of this section, then an appeal may be filed no later than 45 days after posting of the correction on the commission's website. Clerical errors under this section include typographical errors and mathematical errors.(g) Compliance history evidence. Any party in a contested case hearing may submit information pertaining to a person's compliance history, including the underlying components of classifications, subject to the requirements of §80.127 of this title (relating to Evidence). A person or site classification itself shall not be a contested issue in a permitting or enforcement hearing.</content><note type="source"><p>Source Note: The provisions of this §60.3 adopted to be effective August 29, 2002, 27 TexReg 7824; amended to be effective July 19, 2012, 37 TexReg 5283.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c60/sc/s60.4"><num value="60.4">§60.4</num><heading>Site Classification Changes Due to Exigent Circumstances</heading><content>(a) Site Classification Under Review. Regardless of any other section of Chapter 60 of this title (relating to Compliance History), the executive director may designate a site's current compliance history classification as "under review" if the executive director determines that exigent circumstances exist due to an event at the site. The executive director shall make any such designation no later than 90 days after exigent circumstances begin. The designation as "under review" is effective immediately and written notice will be issued to the site's owner and operator, as readily identifiable through agency records. Unless a Notice of Decision to Reclassify is issued under subsection (b) of this section, the designation shall expire on the 91st day after the date of the written notice of designation. For the purpose of this section, exigent circumstances must include:(1) Significant community disruption;(2) Emergency response by a federal or state governmental authority to address an actual, unauthorized release of pollutants, contaminants, or other materials regulated by the agency; and(3) The event must have resulted in one or more of the following:(A) the issuance of an emergency order by a federal or state governmental authority;(B) the issuance of a temporary restraining order or temporary injunction at the request of the state, related to compliance with "applicable legal requirements" under the jurisdiction of the commission, as defined by §60.1(c)(1) of this title (relating to Compliance History);(C) the use of significant federal or state resources, such as the activation of an incident command system; or(D) an actual, unauthorized release of pollutants, contaminants, or other materials regulated by the agency, which causes:(i) the evacuation of off-site persons from homes, places of employment, or other locations;(ii) the sheltering in place by off-site persons in homes, places of employment, or other locations;(iii) the creation of a traffic hazard or interference with normal use of a navigable waterway, railway, or road; or(iv) injury or death of a person directly attributable to the release.(b) Notice of Decision to Reclassify. The executive director may then decide to reclassify a site's compliance history to "suspended." The executive director will consider any available information concerning whether the event in question was caused through any fault of the site's owner or operator. The executive director may make such a decision no sooner than 30 days and no later than 90 days after a site's classification is designated as "under review," and the executive director shall send written notice to the site's owner and operator, as readily identifiable through agency records, of the decision to reclassify the site's compliance history to suspended. The noticed reclassification shall not become final until the effective date under subsection (f) of this section.(c) Evaluation of Permit Applications. To the extent any permit applications are pending for authorizations at the site, upon the executive director's written Notice of Decision to Reclassify a site's compliance history to "suspended" and until the agency has evaluated the pending permit application in light of the event, unless legally obligated otherwise or the decision is withdrawn or set aside, the agency shall not take action to issue, renew, amend, or modify a permit specific to the site. Based on the evaluation, the agency may:(1) approve the permit;(2) approve the permit with changes, which may include additional protective measures to address conditions that caused or resulted from the event; or(3) deny the permit.(d) Demonstration that Reclassification Not Warranted. At any time prior to filing a motion for commission review of the executive director's Notice of Decision to Reclassify, the site's owner or operator may demonstrate to the executive director that reclassification is not warranted. If the executive director determines that reclassification is not warranted, the executive director shall withdraw the decision to reclassify the site's compliance history to suspended by providing written notice to the site's owner and operator, as readily identifiable through agency records.(e) Motion for Commission Review of the Executive Director's Decision. The executive director's decision to reclassify a site's compliance history to suspended under this section may be appealed to the commission only by persons who own or operate the site, and pursuant to the following procedures:(1) A motion for commission review of the executive director's decision shall be filed with the Chief Clerk not later than 90 days after the date the executive director sends the written Notice of Decision to Reclassify under subsection (b) of this section.(2) The commission or the general counsel may, by written order, extend the period of time for taking action on the motion so long as the period for taking action is not extended beyond 180 days after the date the executive director sends the written Notice of Decision to Reclassify under subsection (b) of this section.(3) The motion shall provide the name, address, and daytime telephone number of the person filing the motion, and a brief explanation of the person's owner or operator status as it relates to the site being reclassified.(4) The motion shall state the grounds for the appeal and the specific relief sought. The appeal must also include all documentation and argument in support of the motion.(5) At the request of the general counsel or a commissioner, the motion for review of the executive director's decision to reclassify will be scheduled for consideration during a commission meeting. At the commission meeting, the commission may act on the motion by affirming or setting aside the executive director's decision to reclassify in whole or in part. A Commission Order for its action under this paragraph shall not contain conclusions of law.(6) If the commission does not act on the motion under paragraph (5) of this subsection, then the motion will be addressed as follows:(A) Unless an extension of time is granted, if a motion for review of the executive director's decision to reclassify is not acted on by the commission within 115 days after the date the executive director sends the written Notice of Decision to Reclassify under subsection (b) of this section, the motion is overruled by operation of law; or(B) In the event of an extension, the motion is overruled by operation of law on the date fixed by the order granting the extension, or in the absence of a fixed date, on the 181st day after the date the executive director sends the written Notice of Decision to Reclassify under subsection (b) of this section.(7) During the pendency of any judicial review of the reclassification to suspended, the reclassification shall remain for the purpose of this rule.(f) Effective Date of Reclassification.(1) If no timely motion for commission review is filed pursuant to subsection (e) of this section, the site's compliance history shall be reclassified to suspended on the 91st day after the date the executive director sends the written Notice of Decision to Reclassify under subsection (b) of this section; or(2) If a timely motion for commission review is filed pursuant to subsection (e) of this section, the site's compliance history shall be reclassified to suspended on the date a commission order affirming the executive director's decision to reclassify is signed or, in the absence of such an order, on the date the motion is overruled by operation of law.(g) Effects of Reclassification. While a site's compliance history is reclassified to suspended under this section:(1) The agency shall continue to evaluate applications for permits specific to the site under subsection (c) of this section; and(2) The site shall be treated as an unsatisfactory performer for the purposes of §60.3 of this title (relating to Use of Compliance History), except that the owner or operator of a reclassified site may demonstrate to the executive director that authorizations under §60.3(a)(3)(A)(i) and (ii) would still be appropriate. Upon such a demonstration, the executive director may decide to allow for such authorizations regardless of the prohibitions in §60.3(a)(3)(A)(i) and (ii).(h) Duration of Reclassification. A site's compliance history reclassification under this rule to suspended shall remain for at least one year after the effective date of reclassification, and then until the earliest of:(1) the executive director provides written notice of the determination that the reclassification is no longer warranted, after the executive director decides that:(A) the exigent circumstances have been resolved; and(B) the cause of the event has been identified and corrective actions have been implemented that appropriately reduce or eliminate the likelihood that the same or a similar event will reoccur;(2) an enforcement action arising from the event has been resolved and resulted in a component that is accounted for in the site's compliance history, or such enforcement case is neither pending nor anticipated by the executive director; or(3) three years after the effective date of reclassification.</content><note type="source"><p>Source Note: The provisions of this §60.4 adopted to be effective June 23, 2022, 47 TexReg 3543.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c70"><num value="70">CHAPTER 70</num><heading>ENFORCEMENT</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c70/scA"><num value="A">SUBCHAPTER A</num><heading>ENFORCEMENT GENERALLY</heading><section identifier="/us/state/tx/tac/t30/p1/c70/scA/s70.1"><num value="70.1">§70.1</num><heading>Purpose</heading><content>(a) The purpose of this chapter is to provide general rules governing enforcement actions before the commission or, upon delegation of the authority to issue an administrative order, the executive director. The commission shall delegate the authority to issue an administrative order to the executive director by resolution.(b) This chapter delineates what factors are considered and how statutory requirements are applied in determining the amount of an administrative penalty. The purpose of an administrative penalty is to penalize and deter non-compliance with the commission's rules and to recover any economic benefit resulting from the non-compliance as the commission determines is appropriate. The commission may also establish policies to further delineate the specific procedures for calculating administrative penalties. Specific statutory requirements are located in Texas Water Code, Chapters 5, 7, 11 - 13, and 16; and the Texas Health and Safety Code, Chapters 341, 366, 369, 371, 374, and 401.(c) This chapter applies to all persons, as defined in §3.2 of this title (relating to Definitions), under the jurisdiction of the commission.(d) Nothing in this chapter shall constrain the commission from issuing an enforcement order pursuant to Texas Water Code, §7.051 that assesses an administrative penalty that is different from a penalty proposed by the executive director.(e) Procedures for contested enforcement cases are located in Chapter 80 of this title (relating to Contested Case Hearings).(f) If some part or parts of these rules cannot be interpreted as consistent with the Texas Water Code, the Texas Health and Safety Code, or the Administrative Procedure Act, or where applicable parts of those statutes are not specifically included in these rules, the statutes shall control.</content><note type="source"><p>Source Note: The provisions of this §70.1 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 22, 2010, 35 TexReg 6289; amended to be effective August 30, 2012, 37 TexReg 6609.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scA/s70.2"><num value="70.2">§70.2</num><heading>Definitions</heading><content>Unless specifically defined in this chapter, all terms used in these rules bear the same definitions ascribed by the Texas Water Code, the Texas Health and Safety Code, the APA, and commission rules. The terms specifically defined for the purposes of this chapter are as follows.(1) Contested enforcement case-An action in which the executive director seeks an enforcement order and the respondent has an opportunity for an adjudicative hearing.(2) Executive director's preliminary report (EDPR)-A pleading filed by the executive director which, when issued and served under this title, seeks an enforcement order against a respondent. EDPR is further defined in Subchapter C of this chapter (relating to Enforcement Referrals to SOAH).(3) Petition-The instrument by which the executive director states a cause of action for an enforcement order against a respondent. When an EDPR is filed and issued under this chapter the EDPR and notice constitute a petition, as do amended EDPRs and amended or supplemental petitions.(4) Respondent-A person against whom the executive director is seeking an enforcement order.</content><note type="source"><p>Source Note: The provisions of this §70.2 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 7, 1999, 24 TexReg 5017.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scA/s70.3"><num value="70.3">§70.3</num><heading>Specific Enforcement Policies</heading><content>The executive director may use specific enforcement policies that are neither rules nor precedents, but rather announce the manner in which the agency expects to exercise its discretion in future proceedings. These specific enforcement policies do not establish rules which the public is required to obey or with which it is to avoid conflict. These specific enforcement policies do not convey any rights or impose any obligations on members of the public. These specific enforcement policies are available to the public under the terms of the Public Information Act, Texas Government Code, Chapter 552 and the specific enforcement policies are posted on the commission's Internet Web site.</content><note type="source"><p>Source Note: The provisions of this §70.3 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective August 30, 2012, 37 TexReg 6609.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scA/s70.4"><num value="70.4">§70.4</num><heading>Enforcement Action Using Information Provided by Private Individual</heading><content>(a) A private individual with information demonstrating possible violations of law within the commission's jurisdiction should notify the executive director (ED). The ED may initiate an administrative enforcement action, or he/she may refer to the appropriate prosecuting authority a civil or criminal enforcement action.(b) The ED may initiate an enforcement action based on information received from a private individual if that information, in the ED's judgment, is of sufficient value and credibility to warrant the initiation of an enforcement action. The ED may initiate an enforcement action based on any combination of information provided by private individuals or by the ED's own investigations.(c) In evaluating the value and credibility of information provided by a private individual and determining the use of such information as evidence in an enforcement action, the ED shall consider the following criteria:(1) the individual providing the information must be willing to submit a sworn affidavit attesting to the facts that constitute the alleged violation and authenticating any writings, recordings, or photographs provided by the individual;(2) the individual providing the information must be willing to testify in any enforcement proceedings regarding the alleged violations;(3) if the ED relies on any physical or sampling data submitted by an individual to prove one or more elements of an enforcement case, such data must have been collected or gathered in accordance with relevant agency protocols. The individual submitting the physical or sampling data must be willing to submit a sworn affidavit demonstrating that the individual followed relevant agency protocols when collecting the data. The relevant agency protocols are those used or determined acceptable by the ED; and(4) the commission will not use in an enforcement case information gathered by an individual illegally.(d) A private individual who submits information on which the ED relies for all or part of an enforcement case may be called to testify in the enforcement proceedings and is subject to all sanctions under law for knowingly falsifying evidence.(e) If the ED determines not to initiate an enforcement action based on information received from a private individual in accordance with this section, the ED will process the information received from the individual as a complaint, subject to applicable complaint investigation procedures. The ED may ultimately initiate an enforcement action that is based on information the ED develops during the complaint investigation.</content><note type="source"><p>Source Note: The provisions of this §70.4 adopted to be effective December 11, 2001, 26 TexReg 10060.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scA/s70.5"><num value="70.5">§70.5</num><heading>Remedies</heading><content>Remedies available to the commission in enforcement actions include all those found in the Texas Water Code, the Texas Health and Safety Code, and the APA. These include, but are not limited to, issuance of administrative orders with or without penalties; referrals to the Texas Attorney General's Office for civil judicial action; referrals to the Environmental Protection Agency for civil judicial or administrative action; referrals for criminal action; or permit, license, registration, or certificate revocation or suspension. Nothing herein shall be construed to preclude the executive director from seeking any remedy in law or equity not specifically mentioned in these rules. In addition, an enforcement matter may be resolved informally without a contested case proceeding in appropriate circumstances.</content><note type="source"><p>Source Note: The provisions of this §70.5 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 7, 1999, 24 TexReg 5017.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scA/s70.6"><num value="70.6">§70.6</num><heading>Judicial Civil Enforcement</heading><content>(a) The executive director is authorized to cause to be instituted, in courts of competent jurisdiction, legal proceedings to enforce and compel compliance with any provisions, whether of statutes, rules, regulations, permits or licenses, or orders, that the commission is entitled or required by law to enforce or with which the commission is entitled or required by law to compel compliance. Such legal proceedings may be initiated at any time by the executive director by a letter from the executive director or an authorized representative referring the matter to the Texas Attorney General's Office (OAG) and requesting that the attorney general take action on behalf of the commission.(b) The criteria for the commission or the executive director to refer an enforcement case to the OAG include but are not limited to the following:(1) need for immediate action to protect public health, safety, or the environment;(2) need for a judgment to enforce compliance with an existing administrative enforcement order where there is a significant impact to the environment or to agency policy;(3) egregious violations where the availability of civil penalties is necessary to adequately address the violations;(4) when required by law under Texas Water Code (TWC), §7.105, unless under TWC, §7.106, the OAG and the executive director agree to resolve the violation(s) through an administrative order; or(5) when the TCEQ has been named as a necessary and indispensible party in an action brought by a local government under TWC, §7.351 and §7.353.</content><note type="source"><p>Source Note: The provisions of this §70.6 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective August 30, 2012, 37 TexReg 6609.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scA/s70.7"><num value="70.7">§70.7</num><heading>Force Majeure</heading><content>(a) If a person can establish that an event that would otherwise be a violation of a statute, rule, order, or permit was caused solely by an act of God, war, strike, riot, or other catastrophe , the event is not a violation of that statute, rule, order, or permit.(b) The owner or operator of the affected facility shall have the burden of proof to demonstrate that any pollution or discharge is not a violation as provided by subsection (a) of this section.(c) If force majeure is claimed as an affirmative defense to an action brought under this chapter, the permittee must submit notice to the executive director as provided by §305.125(9) of this title (relating to Standard Permit Conditions).</content><note type="source"><p>Source Note: The provisions of this §70.7 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 7, 1999, 24 TexReg 5017.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scA/s70.8"><num value="70.8">§70.8</num><heading>Financial Inability To Pay; Amount Necessary To Obtain Compliance</heading><content>(a) If any respondent, in response to a contested enforcement case, asserts an inability to pay the penalty recommended in that pleading, or challenges the executive director's recommendation regarding the amount of penalty that is necessary to deter future violations, that party shall have the burden of establishing that a lesser penalty is justified under that party's financial circumstances.(b) A party asserting a claim under this section must produce all financial records that would be potentially relevant to that issue within 30 days of raising that claim, but no later than 30 days before the specified date for hearing without leave from the judge. The executive director is not required to make a discovery request for such financial records. The failure of the party raising such a claim to provide all potentially relevant financial records within the time discussed in this subsection shall constitute a waiver of the claim.</content><note type="source"><p>Source Note: The provisions of this §70.8 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 7, 1999, 24 TexReg 5017.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scA/s70.9"><num value="70.9">§70.9</num><heading>Installment Payment of Administrative Penalty</heading><content>(a) Any person(s) may, upon request, be allowed to make installment payments of an administrative penalty imposed in a commission or executive director order.(b) The amount and payment schedule of monthly installments must be specified by a commission or executive director order.(c) Payment schedules issued may not exceed a 36-month period.</content><note type="source"><p>Source Note: The provisions of this §70.9 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 7, 1999, 24 TexReg 5017; amended to be effective July 22, 2010, 35 TexReg 6289.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scA/s70.10"><num value="70.10">§70.10</num><heading>Agreed Orders</heading><content>(a) The executive director and the respondent may reach an agreement, or settlement, in an enforcement action. In order to have legal effect as an order of the agency, and in any case in which penalties are assessed, an agreed order must be approved and issued by the commission or the executive director. In such an agreed order, the respondent may agree to:(1) admit to none, any, or all of the violations alleged in any Executive Director Preliminary Report or petition in the case;(2) assessment of a specific administrative penalty;(3) remedial ordering provisions;(4) any combination of these; and(5) any other lawful provisions agreed to by the executive director and the respondent.(b) The effective date of an agreed order shall be the date the order is signed by the commission or the executive director, unless stated otherwise in the agreed order.(c) When an agreement is reached, the executive director shall publish notice of the proposed agreed order in the Texas Register, providing 30 days for public comment. Unless delegated to the executive director, after the public comment period, the proposed agreed order shall be scheduled for consideration by the commissioners during a commission meeting under Chapter 10 of this title (relating to Commission Meetings). If the proposed agreed order is to be issued by the executive director, the agreed order shall be scheduled for the executive director's agenda. If the enforcement action is under the jurisdiction of the State Office of Administrative Hearings, the judge shall remand the action to the executive director who will file the agreed order with the chief clerk for commission or executive director consideration. The judge is not required to prepare a proposal for decision or memorandum regarding the settlement.</content><note type="source"><p>Source Note: The provisions of this §70.10 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 7, 1999, 24 TexReg 5017; amended to be effective July 22, 2010, 35 TexReg 6289; amended to be effective December 31, 2015, 40 TexReg 9677.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scA/s70.11"><num value="70.11">§70.11</num><heading>Findings Agreed Orders</heading><content>(a) A findings agreed order is an enforcement order that is drafted with findings of fact and conclusions of law.(b) An agreed order may be drafted as a findings order when any of the following six criteria are satisfied:(1) absence of management practices designed to ensure compliance;(2) a violation of a commission issued enforcement order or court order;(3) a violation contained in the agreed order involves an emission or discharge of contaminants to the environment or other actions meeting one or more of the following criteria:(A) people have been exposed to pollutants which exceed levels that are protective;(B) environmental receptors have been exposed to pollutants which exceed levels that are protective;(C) unauthorized diversion, taking, or storage of state water or an unauthorized change in flood elevation of a stream which deprives others of water, severely affects aquatic life, or results in a safety hazard, property damage, or economic loss; or(D) unauthorized emissions which are excessive emissions events, as set out in §101.222(a) of this title (relating to Demonstrations);(4) the respondent has been the subject of any of the following repeated enforcement actions (Notice of Violation, enforcement order, judgment) over the prior five-year period from the Notice of Enforcement date:(A) three repeated enforcement actions for the same violation as contained in the current agreed order or a substantial history of the same violation entity-wide;(B) three repeated enforcement actions for the same violations or substantial history of the same violation as contained in the current agreed order by the same respondent who is required to be registered, certified, or licensed by TCEQ prior to performing certain activities;(C) two prior enforcement orders having the same general cause for nuisance violations;(5) regardless of specific violations, a respondent has demonstrated a pattern of non-compliance with environmental laws; or(6) indifference to legal duty.</content><note type="source"><p>Source Note: The provisions of this §70.11 adopted to be effective August 30, 2012, 37 TexReg 6609.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scA/s70.12"><num value="70.12">§70.12</num><heading>Notice of Decisions and Orders</heading><content>(a) For rulings, orders, or decisions issued by the commission or the executive director, parties shall be given notice, in accordance with Texas Government Code, §2001.142. The notice shall include: (1) the commission's or the executive director's findings; (2) the amount of the penalty; (3) the right to judicial review of the commission's or the executive director's order; and (4) any other information required by law. (b) In addition to the requirements of subsection (a) of this section, when the commission or the executive director issues an enforcement order in which administrative penalties have been assessed, the chief clerk shall file notice of the commission's or the executive director's decision and order in the Texas Register not later than ten days after the date on which the decision is adopted.</content><note type="source"><p>Source Note: The provisions of this §70.12 adopted to be effective August 30, 2012, 37 TexReg 6609.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c70/scB"><num value="B">SUBCHAPTER B</num><heading>MANDATORY ENFORCEMENT HEARINGS</heading><section identifier="/us/state/tx/tac/t30/p1/c70/scB/s70.51"><num value="70.51">§70.51</num><heading>Mandatory Enforcement Hearings</heading><content>(a) The executive director shall monitor compliance with all permits and licenses issued by the commission. If the evidence available to the executive director through the monitoring process indicates that a permittee or licensee is in substantial noncompliance for a period of four consecutive months, or for a shorter period of time if the executive director considers an emergency to exist, the executive director shall report this fact to the commission together with the information relating to the noncompliance. The executive director may consider the magnitude and frequency of noncompliances with permit or license limitations and conditions in determining the existence of substantial noncompliance.(b) On receiving a report under subsection (a) of this section, the commission shall call and hold a hearing to determine whether the permittee or licensee who is the subject of the executive director's report to the commission has been in substantial noncompliance with his or her permit or license. Notice for this hearing shall issue in accordance with §70.104(b) and (c) of this title (relating to Notice of Executive Director's Preliminary Report), except that in the event that notice is performed under §70.104(b) of this title, by publication, the contents of that notice need only include the name of the respondent, a summary of the relief sought by the executive director, and the right of the person to a hearing if such exists.(c) At the conclusion of the hearing, the commission shall issue an order stating one of the following:(1) no violation of the permit or license has occurred;(2) a violation of the permit or license has occurred, but has been corrected and no further action is necessary to protect the public interest;(3) the executive director is authorized to enter into a compliance agreement;(4) a violation of the permit or license has occurred and an administrative penalty is assessed as provided by the Texas Water Code or the Texas Health and Safety Code; or(5) a violation of the permit or license has occurred, and the executive director is directed to have enforcement proceedings instituted against the permittee or licensee through the office of the attorney general.</content><note type="source"><p>Source Note: The provisions of this §70.51 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 7, 1999, 24 TexReg 5017.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c70/scC"><num value="C">SUBCHAPTER C</num><heading>ENFORCEMENT REFERRALS TO SOAH</heading><section identifier="/us/state/tx/tac/t30/p1/c70/scC/s70.101"><num value="70.101">§70.101</num><heading>Executive Director's Preliminary Report</heading><content>(a) Any enforcement action brought under these rules may be initiated by an EDPR being filed by the executive director with the chief clerk.(b) An EDPR shall include a brief statement of the nature of the violation, the statute or statutes violated, the facts relied upon by the executive director in concluding that a violation has occurred, a recommendation that an administrative penalty be assessed, the amount of the recommended penalty, any corrective action to be taken by the respondent, and an analysis of the factors required in the relevant statute and rules to be considered by the commission in determining the amount of the penalty.</content><note type="source"><p>Source Note: The provisions of this §70.101 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 7, 1999, 24 TexReg 5017.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scC/s70.102"><num value="70.102">§70.102</num><heading>Pleadings Other Than the Executive Director's Preliminary Report</heading><content>(a) In a contested enforcement case, all pleadings for which no other form is prescribed shall contain:(1) the name of the party seeking to bring about or prevent action by the commission;(2) the names of all other known parties;(3) a concise statement of the facts and the law relied upon by the pleader;(4) a prayer stating the type of relief, action, or order desired by the pleader;(5) any other matter required by statute;(6) a certificate in accordance with §1.11 of this title (relating to Service on Judge, Parties, and Interested Persons), showing service; and(7) the signature of the submitting party or the party's authorized representative.(b) All pleadings shall include the docket number assigned the case by the chief clerk and shall be served on the parties in accordance with Chapter 1 of this title (relating to Purpose of Rules, General Provisions).(c) Within seven days of the date of the evidentiary hearing, parties may file pleadings, supplemental or amended, so long as these pleadings do not operate as a surprise to the opposite party. Pleadings filed after the seventh day before the evidentiary hearing shall be filed only after leave of the judge is obtained. Leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party. Late-filed amendments may constitute grounds for a continuance.(d) The executive director may amend an EDPR by filing a petition with the chief clerk, in which the executive director may make such changes as the law allows, including , but not limited to , changes in the following: the amount of the penalty, up to the maximum allowable by statute; the violations alleged, to include any or all violations which are not precluded by law from being brought; the number of days of occurrence of previously alleged violations; and the injunctive relief (or remedial ordering provisions) sought. The right to change the violations alleged includes the right to add causes of action based on statutes within the commission's jurisdiction other than the one or ones upon which the EDPR in the case was based. In addition, the executive director may also amend to add or non-suit parties to the contested enforcement case. Petitions are pleadings and shall be served on the parties in accordance with this Chapter and Chapter 1 of this title.(e) Any pleading may adopt and incorporate, by specific reference thereto, any part of any document or entry in the official files and records of the agency. Copies of the relevant portions of such documents must be attached to the pleadings.</content><note type="source"><p>Source Note: The provisions of this §70.102 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 7, 1999, 24 TexReg 5017.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scC/s70.103"><num value="70.103">§70.103</num><heading>Petitions Which Initiate a Cause of Action</heading><content>(a) Generally. The executive director may file a petition as the instrument for initiating an enforcement action. The EDPR, when properly noticed and served, constitutes a petition.(b) Service. Where enforcement actions are initiated with a petition, as per this section, and there is a statutory requirement that the respondent be given notice, the petition shall be filed and notice given as if it were an EDPR, in accordance with §70.104 of this title (relating to Notice of Executive Director's Preliminary Report).</content><note type="source"><p>Source Note: The provisions of this §70.103 adopted to be effective June 6, 1996, 21 TexReg 4753.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scC/s70.104"><num value="70.104">§70.104</num><heading>Notice of Executive Director's Preliminary Report</heading><content>(a) General requirements. Not later than the 10th day after the date on which the EDPR is issued, the executive director shall give written notice of the EDPR to the respondent. The EDPR is considered issued when it is filed with the office of the chief clerk. Notice shall consist of a copy of the EDPR, a statement of the amount of the penalty recommended, if any, and a statement of the right of the respondent to a hearing on the occurrence of the violation, the amount of the penalty, or both.(b) Timeliness and method of service. Notice shall be timely served if:(1) sent to the respondent by registered or certified mail, return receipt requested, no later than the 10th day after the date on which the EDPR is issued; or(2) delivered to the respondent in person, with the date of delivery endorsed thereon, no later than the 10th day after the date on which the EDPR is issued.(c) Additional methods of service. Where the executive director has been unable to deliver notice to the respondent through reasonable attempts to serve respondent by the methods described in subsection (b) of this section, notice may be effected by :(1) publishing in a newspaper of general circulation in the county of the last known business or residential address of the respondent, for a period of seven consecutive days, the following:(A) the name of the person charged;(B) a brief summary of the charges;(C) a statement of the amount of the penalty recommended, if any;(D) a statement that injunctive or remedial relief is sought; and(E) a statement of the right of the person charged to a hearing on the occurrence of the violation, the amount of the penalty, or both ;(2) mailing the EDPR by both certified mail, return receipt requested, and by first class mail, postage prepaid simultaneously. When the executive director gives the respondent notice of the EDPR to the respondent's last known address in the manner provided by this paragraph, timely service will be presumed if the certified mail is returned to the executive director as unclaimed by the postal service, and the first class mail is not similarly returned; or(3) sending the EDPR by telephonic document transfer or facsimile not later than the tenth day after the date on which the EDPR is issued, at or before 5:00 p.m. local time for the respondent. Service by telephonic document transfer after 5:00 p.m. local time of the respondent shall be deemed service on the following day.(d) Proof of notice. Where proof of notice of the EDPR or petition is relevant, such as at a hearing for default judgment, a certificate by a party or an attorney of record or the affidavit of any person showing service of a notice shall be prima facie evidence of the fact of service. In addition, the executive director may offer live testimony as well as such other documentary evidence as permitted by the presiding officer, showing that the notice has been perfected. Nothing herein shall preclude any party from offering proof that the notice was not received, or if service was by mail, that it was not received within three days from the date of deposit in a post office or official depository under the care and custody of the United States Postal Service, and upon so finding, the presiding officer may extend the time for taking the action required of such party or grant such other relief as it deems just.</content><note type="source"><p>Source Note: The provisions of this §70.104 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 7, 1999, 24 TexReg 5017.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scC/s70.105"><num value="70.105">§70.105</num><heading>Answer</heading><content>(a) A respondent may file with the chief clerk a written response to the EDPR or a pleading entitled an answer which may deny the alleged violations and/or the amount of the penalty. Through the answer, the respondent may either agree to the amount of the penalties and corrective actions recommended in the EDPR or request a contested enforcement case hearing. Any answer must be filed no later than 20 days after the date on which the respondent receives notice of an EDPR. Failure to file the answer by the 20th day after the date on which the respondent receives notice of an EDPR may result in a default order, as described in §70.106 of this title (relating to Default Order), being issued against the respondent.(b) If the person charged consents to the EDPR including the recommended penalty, the answer shall so state.(c) An answer must also be filed in response to a petition which initiates an enforcement action.(d) Answers to amended or supplemental petitions shall be filed if additional facts and claims are alleged in response to the amended or supplemental petitions.(e) Any affirmative defenses must be specifically pled in an answer.(f) A respondent may consent in writing to parts of the EDPR, initial petition, or amended or supplemental petition, whichever is the most recent pleading. If the enforcement action is referred to SOAH for a contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings), the respondent may also enter into agreements with the executive director regarding evidence or other issues pending in the enforcement action by stipulations presented in writing to the judge.</content><note type="source"><p>Source Note: The provisions of this §70.105 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 7, 1999, 24 TexReg 5017.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scC/s70.106"><num value="70.106">§70.106</num><heading>Default Order</heading><content>(a) If any respondent to an executive director's preliminary report (EDPR) or petition initiating an enforcement action fails to timely file an answer as required by §70.105 of this title (relating to Answer), the executive director may file a motion with the chief clerk recommending that a default order be entered against the respondent. The executive director may support the motion with such documentary evidence, including affidavits, exhibits and pleadings, and oral testimony, to demonstrate that the respondent received proper notice under §70.103 or §70.104 of this title (relating to Petitions Which Initiate a Cause of Action and Notice of Executive Director's Preliminary Report) of the pleading initiating the cause of action; and that the respondent failed to timely file an answer under §70.105 of this title and that the respondent is liable for the violations asserted in the cause of action. The chief clerk will schedule the default order for consideration at a commission meeting under Chapter 10 of this title (relating to Commission Meetings). The executive director may also present documentary evidence and oral testimony regarding the amount of penalties that should be assessed against the respondent. In the motion for default order, or at the hearing on the motion, the executive director may also ask for additional penalties for violations alleged in the EDPR or petition, which have continued from the time of the filing of the EDPR or petition, up to the date of the default order. If the executive director recommends additional penalties for continuing violations, he shall briefly describe, either orally or in writing, the continuing violations and the evidence, circumstantial or otherwise, that form the basis for the allegation that the violations are in fact continuing. The commission may grant the relief recommended in the EDPR or petition, or such other amount as may be justified by the evidence presented by the executive director.(b) Even though some or all of the parties fail to appear at a contested enforcement case hearing in person or through their duly authorized representatives, the commission may consider fully and dispose of the matter pending if notice has been given in accordance with law.(c) Upon issuance of a default order, notice of such order shall be given to the respondent in accordance with Texas Government Code, §2001.142.(d) The effective date of a default order shall be the date on which the order is signed by the commission or the executive director.</content><note type="source"><p>Source Note: The provisions of this §70.106 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 7, 1999, 24 TexReg 5017; amended to be effective December 31, 2015, 40 TexReg 9677.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scC/s70.107"><num value="70.107">§70.107</num><heading>Enforcement Hearings</heading><content>If required by law, an enforcement hearing shall be held before any final enforcement order is issued. In cases for which an enforcement hearing is not required by law to be held before an enforcement order is issued, the commission may elect to hold a hearing, on its own motion, or upon the request of the executive director, before issuing a final enforcement order or direct SOAH to hold such a hearing. In those cases for which an enforcement hearing is not required by law to be held before an enforcement order is issued, or for which procedures for an enforcement hearing are not specifically prescribed by rule or statute, the commission may elect to have SOAH hold such hearings under the commission's rules, including the procedures established by this chapter.</content><note type="source"><p>Source Note: The provisions of this §70.107 adopted to be effective June 6, 1996, 21 TexReg 4753.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scC/s70.108"><num value="70.108">§70.108</num><heading>Contested Enforcement Case Hearings To Be Held by SOAH</heading><content>In a contested enforcement case, unless the commission chooses to hear the case itself, SOAH shall have the delegated authority to preside over the case under Chapter 80 of this title (relating to Contested Case Hearings).</content><note type="source"><p>Source Note: The provisions of this §70.108 adopted to be effective June 6, 1996, 21 TexReg 4753.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scC/s70.109"><num value="70.109">§70.109</num><heading>Referral to SOAH</heading><content>Not less than 30 days after the respondent has filed an answer under §70.105 of this title (relating to Answer), either the respondent or the executive director may request that the chief clerk refer the case to the State Office of Administrative Hearings (SOAH) for a contested enforcement case hearing. The parties may request this referral by filing a letter with the chief clerk and serving that letter on the other parties. If the chief clerk receives authorization to refer a case to SOAH, the chief clerk shall refer the case to SOAH under §80.6 of this title (relating to Referral to SOAH).</content><note type="source"><p>Source Note: The provisions of this §70.109 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective May 14, 2020, 45 TexReg 3083.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c70/scD"><num value="D">SUBCHAPTER D</num><heading>CRIMINAL ENFORCEMENT REVIEW</heading><section identifier="/us/state/tx/tac/t30/p1/c70/scD/s70.201"><num value="70.201">§70.201</num><heading>Scope and Purpose</heading><content>The purpose of this subchapter is to establish the procedure and mechanism for Texas peace officers to submit to the executive director a request for criminal enforcement review of an alleged criminal environmental violation related to the activity for which a permit was issued by the commission or executive director, as required under Texas Water Code, §7.203. A permit, as defined under Texas Water Code, §7.001, includes a license, certificate, registration, approval, or any other form of authorization granted by the commission or executive director.</content><note type="source"><p>Source Note: The provisions of this §70.201 adopted to be effective August 4, 2004, 29 TexReg 7442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scD/s70.202"><num value="70.202">§70.202</num><heading>Applicability</heading><content>(a) As required under Texas Water Code, §7.203, a written request for review of an alleged criminal environmental violation shall be submitted to the executive director prior to referring to a prosecuting attorney for criminal prosecution if all the following criteria are met:(1) the individual submitting the request is a peace officer, as that term is defined in Texas Water Code, §7.193 or Texas Code of Criminal Procedure, Chapter 2;(2) the alleged criminal offense is a violation of the Texas Water Code or the Texas Health and Safety Code;(3) the person alleged to have committed the criminal violation is the holder of a permit issued by the commission or executive director or an employee of a person holding such a permit; and(4) the alleged criminal violation is related to the activity for which the permit was issued.(b) A written request for review is not required to be submitted to the executive director under Texas Water Code, §7.203, if the alleged violation constitutes imminent danger of death or bodily injury under an endangerment offense specified in Texas Water Code, §7.252.(c) This subchapter does not apply to:(1) enforcement by a local government of statutory provisions within the jurisdiction of the local government, and not within the jurisdiction of the commission, or to enforcement of the local government's own codes, ordinances, rules, orders, permits, or other decisions; and(2) Class C misdemeanors that are initiated by a peace officer filing a complaint or citation with an appropriate court without first referring the case to a prosecuting attorney.</content><note type="source"><p>Source Note: The provisions of this §70.202 adopted to be effective August 4, 2004, 29 TexReg 7442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scD/s70.203"><num value="70.203">§70.203</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.(1) Related to--Having an established relationship or connection.(2) Activity for which the permit was issued--The activity authorized by the commission or executive director under any provision, prohibition, or requirement of a permit, license, certificate, registration, approval, or other form of authorization granted by the commission or executive director.</content><note type="source"><p>Source Note: The provisions of this §70.203 adopted to be effective August 4, 2004, 29 TexReg 7442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scD/s70.204"><num value="70.204">§70.204</num><heading>Procedure for Requesting Criminal Enforcement Review</heading><content>(a) The peace officer requesting criminal enforcement review under this section shall submit to the executive director a written request for review that is clearly marked "For Law Enforcement Use Only." The request shall include the legal name of the alleged violator and a report describing the facts and circumstances of the alleged criminal environmental violation.(b) The requesting officer may also include any additional information that the requesting officer determines is relevant to the criminal enforcement review request, in accordance with §70.206 of this title (relating to Factors Considered in the Criminal Enforcement Review Process), and an explanation as to the reason criminal enforcement of the violation is the most appropriate action, rather than administrative or civil enforcement.(c) Any criminal enforcement review documentation that is submitted under this section will remain the property of the submitting law enforcement agency and the records will be returned upon completion of the criminal enforcement review.</content><note type="source"><p>Source Note: The provisions of this §70.204 adopted to be effective August 4, 2004, 29 TexReg 7442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scD/s70.205"><num value="70.205">§70.205</num><heading>Criminal Enforcement Review Schedule</heading><content>Following submission of the information required by §70.204 of this title (relating to Procedure for Requesting Criminal Enforcement Review), the executive director shall determine whether the request contains the required information necessary to conduct a criminal enforcement review.(1) If the executive director determines that the request is administratively complete by meeting the requirements in §70.204 of this title, the executive director shall, based on the information provided by the requesting peace officer, within 45 days of receiving the request:(A) determine whether an alleged environmental violation exists;(B) determine whether administrative or civil remedies would adequately and appropriately address the alleged violation or whether the alleged violation would be more appropriately addressed by criminal enforcement; and(C) notify the referring peace officer in writing, of the determination as to whether an alleged criminal violation exists and whether civil or administrative remedies are adequate to address the alleged environmental violation or recommend criminal prosecution.(2) If the executive director determines that the criminal enforcement review request is not administratively complete, the executive director shall notify the requesting peace officer in writing within ten days of receipt of the request. The notification will specify the deficiencies and identify the information necessary for the executive director to make the required determination.(3) If the executive director does not make a determination within 45 days of receiving the request, an appropriate prosecuting attorney may bring an action for criminal prosecution, and the state is not entitled to receive any part of the amount recovered through a prosecution brought by that prosecuting attorney.</content><note type="source"><p>Source Note: The provisions of this §70.205 adopted to be effective August 4, 2004, 29 TexReg 7442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c70/scD/s70.206"><num value="70.206">§70.206</num><heading>Factors Considered in the Criminal Enforcement Review Process</heading><content>(a) The executive director shall consider the following factors in the process of conducting a criminal enforcement review:(1) the nature, circumstances, extent, duration, and gravity of the prohibited act, with special emphasis on the impairment of existing water rights or the hazard or potential hazard created to the health or safety of the public;(2) the result of the violation on:(A) air quality in the region;(B) a receiving stream or underground water reservoir;(C) instream uses, water quality, aquatic and wildlife habitat, or beneficial freshwater inflows to bays and estuaries; or(D) affected persons;(3) with respect to the alleged violator:(A) the history and extent of previous violations;(B) the degree of culpability, including whether the violation was attributable to mechanical or electrical failures and whether the violation could have been reasonably anticipated and avoided;(C) the demonstrated good faith, including actions taken by the alleged violator to rectify the cause of the violation and to compensate affected persons;(D) economic benefit gained through the violation; and(E) the necessity to deter future violations; and(4) any other matters that justice may require.(b) The criminal environmental enforcement review team will be comprised of representatives with expertise in criminal investigations, civil and administrative enforcement, and any other relevant specialists.</content><note type="source"><p>Source Note: The provisions of this §70.206 adopted to be effective August 4, 2004, 29 TexReg 7442.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c80"><num value="80">CHAPTER 80</num><heading>CONTESTED CASE HEARINGS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c80/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL RULES</heading><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.1"><num value="80.1">§80.1</num><heading>Applicability and Purpose</heading><content>Except as provided in this chapter, this chapter applies to and provides procedures for all contested case hearings and other hearings held by SOAH.</content><note type="source"><p>Source Note: The provisions of this §80.1 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective September 23, 1999, 24 TexReg 8276.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.4"><num value="80.4">§80.4</num><heading>Judges</heading><content>(a) Applicability and delegation is as follows:(1) Any application that is declared administratively complete on or after September 1, 1999, is subject to this section.(2) The commission delegates to the State Office of Administrative Hearings the authority to conduct hearings designated by the commission.(b) The chief administrative law judge will assign judges to hearings. When more than one judge is assigned to a hearing, one of the judges will be designated as the presiding judge and shall resolve all procedural questions. Evidentiary questions will ordinarily be resolved by the judge sitting in that phase of the case, but may be referred by that judge to the presiding judge.(c) Judges shall have authority to:(1) set hearing dates;(2) convene the hearing at the time and place specified in the notice for the hearing;(3) establish the jurisdiction of the commission;(4) rule on motions and on the admissibility of evidence and amendments to pleadings;(5) designate and align parties and establish the order for presentation of evidence, except that the executive director and the public interest counsel shall not be aligned with any other party;(6) examine and administer oaths to witnesses;(7) issue subpoenas to compel the attendance of witnesses, or the production of papers and documents;(8) authorize the taking of depositions and compel other forms of discovery;(9) set prehearing conferences and issue prehearing orders;(10) ensure that information and testimony are introduced as conveniently and expeditiously as possible, including limiting the time of argument and presentation of evidence and examination of witnesses without unfairly prejudicing any rights of parties to the proceeding;(11) limit testimony to matters under the commission's jurisdiction;(12) continue any hearing from time to time and from place to place;(13) reopen the record of a hearing, before a proposal for decision is issued, for additional evidence where necessary to make the record more complete;(14) impose appropriate sanctions;(15) consider additional issues beyond the list referred by the commission when:(A) the issues are material;(B) the issues are supported by evidence; and(C) there are good reasons for the failure to supply available information regarding the issues during the public comment period;(16) for permit applications filed before September 1, 2015, or applications not referred under Texas Water Code (TWC), §5.556 or §5.557, extend the proceeding beyond the maximum expected completion date if:(A) the judge determines that failure to grant an extension would deprive a party of due process or another constitutional right; or(B) by agreement of the parties;(17) for permit applications filed on or after September 1, 2015, and referred under TWC, §5.556 or §5.557, extend the proceeding beyond 180 days after the first day of the preliminary hearing or on an earlier date specified by the commission if:(A) the judge determines that failure to grant an extension would unduly deprive a party of due process or another constitutional right; or(B) by agreement of the parties with approval of the judge;(18) for permit applications filed on or after September 1, 2017, under TWC, §11.122(b-1), extend the proceeding beyond 270 days after the first day of the preliminary hearing or on an earlier date specified by the commission if:(A) the judge determines that failure to grant an extension would unduly deprive a party of due process or another constitutional right; or(B) by agreement of the parities with the approval of the judge; and(19) exercise any other appropriate powers necessary or convenient to carry out his responsibilities.(d) For the purposes of subsection (c)(16), (17) and (18) of this section, a political subdivision has the same constitutional rights as an individual.</content><note type="source"><p>Source Note: The provisions of this §80.4 adopted to be effective September 23, 1999, 24 TexReg 8276; amended to be effective December 31, 2015, 40 TexReg 9680; amended to be effective August 16, 2018, 43 TexReg 5214.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.6"><num value="80.6">§80.6</num><heading>Referral to SOAH</heading><content>(a) Any application that is declared administratively complete on or after September 1, 1999, is subject to this section.(b) When a case is referred to the State Office of Administrative Hearings (SOAH), the chief clerk shall:(1) file with SOAH a Request for Setting of Hearing form, or Request for Assignment of Administrative Law Judge form, whichever is appropriate;(2) coordinate with SOAH to determine a time and place for hearing;(3) issue public notice of the hearing as required by law and commission rules;(4) for applications filed before September 1, 2015, or applications not referred under Texas Water Code, §5.556 or §5.557, send a copy of the chief clerk's case file to SOAH which, in permitting matters, shall include certified copies of the following documents:(A) the documents described in §80.118 of this title (relating to Administrative Record); and(B) for cases referred under §55.210 of this title (relating to Direct Referrals) any public comment and the executive director's response to comments to be included in the administrative record, except that these documents may be sent to SOAH after referral of the case, if they are filed subsequent to referral;(5) for applications filed on or after September 1, 2015, and referred under Texas Water Code, §5.556 or §5.557, which are referred for hearing by the commission, file with SOAH the administrative record described in §80.118 of this title; and(6) send the commission's list of disputed issues and maximum expected duration of the hearing to SOAH unless the case is referred under §55.210 of this title.(c) In an enforcement case, the executive director's petition or Executive Director Preliminary Report shall serve as the list of issues or areas that must be addressed.(d) When a case is referred to SOAH, only those issues referred by the commission or added by the judge under §80.4(c)(16) of this title (relating to Judges) may be considered in the hearing. The judge shall provide proposed findings of fact and conclusions of law only on those issues. This subsection does not apply to a case referred under §55.210 of this title.</content><note type="source"><p>Source Note: The provisions of this §80.6 adopted to be effective September 23, 1999, 24 TexReg 8276; amended to be effective December 27, 2001, 26 TexReg 10611; amended to be effective December 31, 2015, 40 TexReg 9680.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.9"><num value="80.9">§80.9</num><heading>Representation at Hearings</heading><content>(a) A representative of record is one who has appeared in a proceeding or whose name is subscribed to any application, petition, or other pleading or to some agreement of the parties filed in the proceedings. The representative shall be the representative of record until the end of the proceeding unless there is a statement to the contrary appearing in the record.(b) Not more than one representative for each party or aligned group of parties shall be heard on any question or in the hearing except upon leave of the judge.(c) Representatives shall:(1) observe the letter and spirit of the Texas Lawyer's Creed, as adopted by the Texas Supreme Court, and the State Bar of Texas' Texas Disciplinary Rules of Professional Conduct, including those provisions concerning improper ex parte communications with the commissioners and judges;(2) advise their clients and witnesses of applicable requirements of conduct and decorum;(3) direct all objections, arguments, and other comments to the judge and not to other participants.</content><note type="source"><p>Source Note: The provisions of this §80.9 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.11"><num value="80.11">§80.11</num><heading>Conduct and Decorum</heading><content>(a) Those who attend or participate in hearings should conduct themselves in a manner respectful of the conduct of public business, and conducive to orderly and polite discourse. All those in attendance shall comply with the judge's directions concerning the offer of public comment, and conduct and decorum.(b) In a hearing before a judge, the judge shall first warn a person violating this section to refrain from the specific conduct in violation. Upon further violation of this section by the same person, the judge may exclude that person from the proceeding for such time and under such conditions as necessary to correct the situation. Violation of this section shall also be sufficient cause for the judge to recess the hearing.</content><note type="source"><p>Source Note: The provisions of this §80.11 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.13"><num value="80.13">§80.13</num><heading>Consolidation and Severance of Issues and Parties</heading><content>(a) Consolidation. Consistent with notices required by law, the judge may consolidate related cases or claims if consolidation will not prejudice any party and may save time and expense or otherwise benefit the public interest and welfare. With the judge's permission, the executive director may consolidate cases or claims, including those involving different media or persons. The commission may, when referring matters to SOAH, direct that cases or claims be consolidated for hearing.(b) Severance. The judge may sever issues in a proceeding or hold special hearings on separate issues if doing so will not prejudice any party and may save time and expense or benefit the public interest and welfare. The judge may sever contested enforcement cases or claims involving any number of parties, upon motion by any respondent, where the respondent can show that he would be unduly prejudiced if severance were not granted.</content><note type="source"><p>Source Note: The provisions of this §80.13 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.15"><num value="80.15">§80.15</num><heading>Ex Parte Communications</heading><content>(a) No ex parte communications. Unless required for the disposition of an ex parte matter authorized by law, during the pendency of a contested case either at SOAH or before the commission, no party, person, or their representatives shall communicate directly or indirectly with any commissioner or the judge concerning any issue of fact or law relative to the pending case, except on notice and opportunity for all parties to participate.(b) Utilizing special skills of the commission. The judge may seek the special skills or knowledge of commission staff in evaluating the evidence in a contested case. The judge shall follow the following procedure.(1) The judge shall issue an order, copied to all parties, asking the executive director to assign a staff person with expertise who has not participated in the proceeding or in the processing of the matter being considered for potential consultation.(2) All communications between the designated staff expert and the judge shall be either recorded or in writing, and all such communications submitted to or considered by the judge shall be made available as public records when the proposal for decision is issued.(3) During the pendency of the case either before the judge or at the commission, no party, person, or their representatives shall communicate directly or indirectly with the designated staff expert assigned to help the judge concerning any issue of fact or law relative to the pending case, except on notice and opportunity for all parties to participate.</content><note type="source"><p>Source Note: The provisions of this §80.15 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.17"><num value="80.17">§80.17</num><heading>Burden of Proof</heading><content>(a) The burden of proof is on the moving party by a preponderance of the evidence, except as provided in subsection (b) of this section.(b) In an enforcement case, the executive director has the burden of proving by a preponderance of the evidence the occurrence of any violation and the appropriateness of any proposed technical ordering provisions. The respondent has the burden of proving by a preponderance of the evidence all elements of any affirmative defense asserted. Any party submitting facts relevant to the factors prescribed by the applicable statute to be considered by the commission in determining the amount of the penalty has the burden of proving those facts by a preponderance of the evidence.(c) In contested cases regarding a permit application filed with the commission on or after September 1, 2015, and referred under Texas Water Code, §5.556 or §5.557:(1) the filing of the administrative record as described in §80.118(c) of this title (relating to Administrative Record) establishes a prima facie demonstration that the executive director's draft permit meets all state and federal legal and technical requirements, and, if issued consistent with the executive director's draft permit, would protect human health and safety, the environment, and physical property;(2) a party may rebut the presumption in paragraph (1) of this subsection by presenting evidence regarding the referred issues demonstrating that the draft permit violates a specifically applicable state or federal legal or technical requirement; and(3) if a rebuttal case is presented by a party under paragraph (2) of this subsection, the applicant and executive director may present additional evidence to support the executive director's draft permit.</content><note type="source"><p>Source Note: The provisions of this §80.17 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective September 23, 1999, 24 TexReg 8276; amended to be effective November 15, 2001, 26 TexReg 9105; amended to be effective May 3, 2012, 37 TexReg 3147; amended to be effective December 31, 2015, 40 TexReg 9680; amended to be effective January 3, 2019, 43 TexReg 8611.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.19"><num value="80.19">§80.19</num><heading>Audio Recording of Proceedings</heading><content>The judge shall record each proceeding on audio cassette tape. Any person may obtain a copy of the tape recording from the judge or, after conclusion of the hearing, may submit a request to the chief clerk accompanied by payment of all reproduction costs.</content><note type="source"><p>Source Note: The provisions of this §80.19 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.21"><num value="80.21">§80.21</num><heading>Witness Fees</heading><content>(a) A person who is not a party and is compelled to attend any hearing or proceeding or to produce books, records, papers, or other objects is entitled to receive mileage reimbursement if the location of the hearing or proceeding is more than 25 miles from the person's place of residence. Reimbursement shall be at the current rate for state employees. The person is also entitled to receive a minimum fee of $70 or the amount equal to state employees' current maximum travel reimbursement for overnight lodging plus meals, whichever is greater, for each day or part of a day the person is necessarily present as a witness or deponent. This fee shall be paid to the witness or deponent even if overnight lodging is not used, and the fee shall not be prorated for parts of days. A witness or deponent who is an agency employee may only receive travel expenses, to the extent allowed by applicable law and commission policy.(b) Mileage and fees to which a witness is entitled under this section shall be paid by the party at whose request the witness appears or the deposition is taken, on presentation of proper vouchers sworn by the witness and approved by the judge.</content><note type="source"><p>Source Note: The provisions of this §80.21 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective November 15, 2001, 26 TexReg 9105.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.23"><num value="80.23">§80.23</num><heading>Transcriptions of Hearings</heading><content>(a) Official court reporter. Consistent with its court reporting services agreement, the commission will provide a certified court reporter to make a verbatim record and transcript of any commission meeting, hearing, or other proceeding upon the timely request of any person. The court reporter provided by the commission shall be the official reporter for commission proceedings. If the commission does not provide a court reporter a party may, at its own expense, furnish a certified court reporter whom the commission may designate as the official reporter for the proceeding.(b) Requests for court reporter services.(1) A request for a verbatim record or transcript of a proceeding may be submitted at any time, but shall be submitted in writing to the chief clerk or the judge and shall specify: the name, mailing address, and daytime telephone number of the requester; the name and date of the commission proceeding; and a statement of whether a transcript is requested. A request for a transcript of a proceeding already reported may be made directly to the court reporter.(2) A person requesting a verbatim record without a transcript of a proceeding shall pay the applicable reporting fees in the commission's court reporting services agreement.(3) A person requesting a transcript of a proceeding shall pay for at least an original and two copies of the transcript in addition to any applicable reporting fees in accordance with the commission's court reporting services agreement. The court reporter shall provide the commission the original and one copy of the transcript free of charge.(4) Upon his or her own motion, the judge may request a verbatim record and an original and two copies of a transcript of a proceeding.(5) The judge may require the applicant to pay for the transcript in advance subject to reimbursement from other parties upon assessment of costs.(c) Cancellation of court reporter services. A person who causes the judge or commission to cancel a hearing or meeting for which a verbatim record or transcript has been requested is responsible for paying the court reporter, upon demand, the full daily reporting fee in the commission's court reporting services agreement unless the cancellation occurs more than 24 hours before the scheduled beginning of the hearing or meeting.(d) Assessment of reporting and transcription costs.(1) Upon the timely filed motion of a party or upon its own motion, the commission may assess reporting and transcription costs to one or more of the parties participating in the proceeding. The commission shall consider the following factors in assessing reporting and transcription costs:(A) the party who requested the transcript;(B) the financial ability of the party to pay the costs;(C) the extent to which the party participated in the hearing;(D) the relative benefits to the various parties of having a transcript;(E) the budgetary constraints of a state or federal administrative agency participating in the proceeding;(F) in rate proceedings, the extent to which the expense of the rate proceeding is included in the utility's allowable expenses; and(G) any other factor which is relevant to a just and reasonable assessment of costs.(2) The commission will not assess reporting or transcription costs to statutory parties who are precluded by law from appealing any ruling, decision, or other act of the commission.(3) In any proceeding where the assessment of reporting or transcription costs is an issue, the judge shall provide the parties an opportunity to present evidence and argument on the issue. A judge shall include in the proposal for decision a recommendation for the assessment of costs.(4) The parties may agree upon the division or assessment of reporting and transcription costs. The terms of such an agreement shall be made part of the record of the proceeding.(e) Payment of reporting or transcription assessment.(1) Each party assessed a reporting or transcription cost in a commission proceeding shall pay the assessment in full within ten days after the commission's order is final, as provided by the APA. The assessment shall be paid by check payable to the order of the court reporter firm that reports or transcribes the proceeding, or as otherwise ordered by the commission. Payment shall be remitted to the chief clerk of the commission or as otherwise ordered by the commission.(2) If a party fails to pay the assessment under subsection (a) of this section, the commission may forward the matter to the attorney general of Texas for prosecution and collection.(3) Upon a party's filing a sworn motion showing good cause for failure to pay its assessment under subsection (a) of this section, accompanied by tender of payment of the party's assessment in full, the commission may grant an exception to the time within which payment must have been made under subsection (a) of this section, accept the payment, and otherwise enforce its assessment.(f) Sale of transcript copies. The court reporter may sell copies of a transcript of a commission proceeding in accordance with the commission's court reporting services agreement, but the commission shall not be precluded from complying with the Public Information Act.</content><note type="source"><p>Source Note: The provisions of this §80.23 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.25"><num value="80.25">§80.25</num><heading>Withdrawing the Application</heading><content>(a) An applicant may file a request to withdraw its application at any time before the proposal for decision is issued.(b) If the request is to withdraw the application with prejudice, the judge shall remand the application and request to the executive director, who shall enter an order dismissing the application with prejudice.(c) If the parties agree in writing to the withdrawal of the application without prejudice or if the request to withdraw is filed before parties are named, the judge shall remand the application and request to the executive director, who shall enter an order dismissing the application without prejudice, on the terms agreed to by the parties, or by the applicant, executive director, and public interest counsel if no parties have been named.(d) If neither subsection (b) nor (c) of this section apply, the judge will forward the application, the request, and a recommendation on the request to the commission.(e) An applicant is entitled to an order dismissing an application without prejudice if:(1) the parties, or the applicant, executive director, and public interest counsel if no parties have been named, agree in writing;(2) the applicant reimburses the other parties all expenses, not including attorney's fees, that the other parties have incurred in the permitting process for the subject application; or(3) the commission authorizes the dismissal of the application without prejudice.(f) An application filed before September 1, 2015, for which chief clerk has mailed the executive director's notice of preliminary decision and Notice of a Draft Permit under §39.419 of this title (relating to Notice of Application and Preliminary Decision) that is subsequently withdrawn by the applicant, are governed by the commission's rules as they existed immediately before September 1, 2015, and those rules are continued in effect for that purpose if the application is refiled with the commission and the executive director determines the refiled application is substantially similar to the withdrawn application. For purposes of making this determination, the executive director may consider the following information contained in the withdrawn application and the refiled application:(1) the name of the applicant;(2) the location or proposed location of the construction, activity, or discharge, to be authorized by the application;(3) the air contaminants to be emitted;(4) the area to be served by a wastewater treatment facility;(5) the volume and nature of the wastewater to be treated by a wastewater treatment facility;(6) the volume and type of waste to be disposed;(7) changes in methods of treatment or disposal of waste; or(8) any other factor the executive director determines is relevant to this determination.</content><note type="source"><p>Source Note: The provisions of this §80.25 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective May 15, 1997, 22 TexReg 4000; amended to be effective December 31, 2015, 40 TexReg 9680.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.27"><num value="80.27">§80.27</num><heading>Form of Pleadings</heading><content>(a) All pleadings filed under this chapter should contain:(1) the name of the party;(2) the names of all other known parties;(3) a concise statement of the facts and the law relied upon;(4) a prayer stating the type of relief, action, or order desired;(5) any other matter required by statute;(6) a certificate of service; and(7) the signature of the party or the party's authorized representative.(b) All pleadings shall include the docket number assigned the case by the chief clerk.(c) Any pleading may adopt and incorporate, by reference, any part of any document or entry in the official files and records of the agency. Copies of the relevant portions of such documents must be attached to the pleadings.</content><note type="source"><p>Source Note: The provisions of this §80.27 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.29"><num value="80.29">§80.29</num><heading>Amended and Supplemental Pleadings in Enforcement Cases</heading><content>(a) Up to seven days before the hearing, parties to an enforcement action may file supplemental or amended pleadings, so long as those pleadings do not operate as an unfair surprise to the opposite party. Amendments after that time will be at the discretion of the judge and may constitute grounds for a continuance.(b) The executive director may amend an enforcement petition to include changes in, but not limited to:(1) the amount of the penalty up to the maximum allowable by statute;(2) the violations alleged;(3) the number of days of occurrence of previously alleged violations; and(4) the injunctive relief (or remedial ordering provisions) sought.(c) The right to change the violations alleged includes the right to add causes of action based on any statutes within the commission's jurisdiction other than the one or ones upon which the executive director's preliminary report in the case was based.</content><note type="source"><p>Source Note: The provisions of this §80.29 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.31"><num value="80.31">§80.31</num><heading>Motions</heading><content>(a) A motion, unless made during a hearing, shall be made in writing, shall set forth the relief or order sought, and shall be timely filed with the chief clerk. Any reply to the motion shall be timely filed with the chief clerk with copies served on the judge and other parties. Failure to furnish copies may be grounds for withholding consideration of the motion or reply. Motions based on matters which do not appear of record must be supported by affidavit.(b) Motions made during a hearing shall be stated on record or filed with the judge.(c) When necessary in the judgment of the judge or commission, a hearing will be held to consider any motion.</content><note type="source"><p>Source Note: The provisions of this §80.31 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scA/s80.33"><num value="80.33">§80.33</num><heading>Lost Records and Papers</heading><content>When any papers or records in the custody and control of the commission are lost or destroyed, the parties, with the approval of the commission, may agree in writing on a brief statement of the matters contained therein or any person may at any time supply such lost records or papers as follows.(1) Any person may make a written sworn motion before the commission stating the loss or destruction of such record or papers, accompanied by certified copies of the originals, if obtainable, or by substantially correct copies.(2) If, upon hearing, the commission is satisfied that they are substantially correct copies of the original, an order will be entered substituting such copies for the missing originals.(3) Such substituted copies will be filed with and constitute a part of the record and have the force and effect of the originals.</content><note type="source"><p>Source Note: The provisions of this §80.33 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c80/scC"><num value="C">SUBCHAPTER C</num><heading>HEARING PROCEDURES</heading><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.101"><num value="80.101">§80.101</num><heading>Remand to Executive Director</heading><content>At the request of the applicant, a judge shall remand an application to the executive director if all timely hearing requests have been withdrawn or denied or, if parties have been named, all parties to a contested case reach a settlement so that no facts or issues remain controverted. After remand, the application shall be uncontested and the applicant is deemed to have agreed to the action of the executive director. The executive director may act on the application or set it for a commission meeting.</content><note type="source"><p>Source Note: The provisions of this §80.101 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective May 15, 1997, 22 TexReg 4000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.103"><num value="80.103">§80.103</num><heading>Procedure Before Preliminary Hearing</heading><content>(a) Conference before preliminary hearing.(1) At the judge's discretion, a conference before hearing may be held at a time and place stated in the notice. If notice of the conference is not given in the notice of public hearing, notice of the conference shall be mailed at least ten days prior to the conference or the conference may be held at the public hearing date, time, and place stated in the notice of public hearing. If notice of public hearing is required to be published, notice of a conference to be held prior to the initial public hearing date shall be published at least ten days prior to the conference.(2) Any issue appropriately considered at a preliminary hearing may be considered at a conference.(b) Record of conference action. As determined by the judge, action taken at the conference shall be reduced to writing and made a part of the record or a statement thereof shall be made on the record at the close of the conference or at the hearing. After a prehearing conference, the judge may make appropriate rulings concerning matters discussed at the conference.</content><note type="source"><p>Source Note: The provisions of this §80.103 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.105"><num value="80.105">§80.105</num><heading>Preliminary Hearings</heading><content>(a) After the required notice has been issued, the judge shall convene a preliminary hearing to consider the jurisdiction of the commission over the proceeding. A preliminary hearing is not required in an enforcement matter, except in those under federally authorized underground injection control or Texas Pollutant Discharge Elimination System programs. A preliminary hearing is required for applications referred to the State Office of Administrative Hearings under §55.210 of this title (relating to Direct Referrals).(b) If jurisdiction is established, the judge shall:(1) name the parties;(2) accept public comment in the following matters:(A) enforcement hearings; and(B) applications under Texas Water Code (TWC), §11.036 or §11.041 and TWC, Chapter 13;(3) establish a docket control order designed to complete the proceeding within the maximum expected duration set by the commission. The order should include a discovery and procedural schedule including a mechanism for the timely and expeditious resolution of discovery disputes; and(4) allow the parties an opportunity for settlement negotiations.(c) When agreed to by all parties in attendance at the preliminary hearing, the judge may proceed with the evidentiary hearing on the same date of the first preliminary hearing.(d) One or more preliminary hearings may be held to discuss:(1) formulating and simplifying issues;(2) evaluating the necessity or desirability of amending pleadings;(3) all pending motions;(4) stipulations;(5) the procedure at the hearing;(6) specifying the number and identity of witnesses;(7) filing and exchanging prepared testimony and exhibits;(8) scheduling discovery;(9) setting a schedule for filing, responding to, and hearing of dispositive motions; and(10) other matters that may expedite or facilitate the hearing process.(e) For applications directly referred under §55.210 of this title, a preliminary hearing may not be held until the executive director's response to public comment has been provided.</content><note type="source"><p>Source Note: The provisions of this §80.105 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective December 1, 1997, 22 TexReg 11381; amended to be effective September 23, 1999, 24 TexReg 8276; amended to be effective December 27, 2001, 26 TexReg 10611; amended to be effective December 31, 2015, 40 TexReg 9680; amended to be effective January 3, 2019, 43 TexReg 8611.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.107"><num value="80.107">§80.107</num><heading>Sanctions</heading><content>(a) On the judge's own motion or on motion of a party and after notice and an opportunity for a hearing, a judge may impose sanctions against a party or its representative for:(1) filing a motion or pleading that is groundless and brought:(A) in bad faith;(B) for the purpose of harassment; or(C) for any other improper purpose, such as to cause unnecessary delay or needless increase in the cost of the proceeding;(2) abuse of the discovery process in seeking, making, or resisting discovery; or(3) failure to obey an order of the judge or the commission.(b) A sanction imposed under this section may include, as appropriate and justified, issuance of an order:(1) disallowing further discovery of any kind or of a particular kind by the offending party;(2) charging all or any part of the expenses of discovery against the offending party or its representatives;(3) holding that designated facts be considered admitted for purposes of the proceeding;(4) refusing to allow the offending party to support or oppose a designated claim or defense or prohibiting the party from introducing designated matters in evidence;(5) disallowing in whole or in part requests for relief by the offending party and excluding evidence in support of those requests; and(6) striking pleadings or testimony, or both, in whole or part.</content><note type="source"><p>Source Note: The provisions of this §80.107 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.108"><num value="80.108">§80.108</num><heading>Executive Director Party Status in Permit Hearings</heading><content>The executive director is a party in all contested case hearings concerning permitting matters. The executive director's participation shall be to complete the administrative record and support the executive director's position developed in the underlying proceeding. The executive director may revise or reverse his position based on the evidence presented in the hearing.</content><note type="source"><p>Source Note: The provisions of this §80.108 adopted to be effective November 15, 2001, 26 TexReg 9105; amended to be effective July 19, 2007, 32 TexReg 4398; amended to be effective May 3, 2012, 37 TexReg 3147; amended to be effective December 31, 2015, 40 TexReg 9680.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.109"><num value="80.109">§80.109</num><heading>Designation of Parties</heading><content>(a) Determination by judge. All parties to a proceeding shall be determined at the preliminary hearing or when the judge otherwise designates. To be admitted as a party, a person must have a justiciable interest in the matter being considered and must, unless the person is specifically named in the matter being considered, appear at the preliminary hearing in person or by representative and seek to be admitted as a party. After parties are designated, no person will be admitted as a party except upon a finding that good cause and extenuating circumstances exist and that the hearing in progress will not be unreasonably delayed.(b) Parties.(1) The executive director is a mandatory party to all commission proceedings concerning matters in which the executive director bears the burden of proof, and in the following commission proceedings:(A) matters concerning Texas Water Code (TWC), §11.036 and §11.041; TWC, Chapters 13, 35, 36, and 49 - 66; and Texas Local Government Code, Chapters 375 and 395;(B) matters arising under Texas Government Code, Chapter 2260 and Chapter 11, Subchapter D of this title (relating to Resolution of Contract Claims); and(C) matters under TWC, Chapter 26, Subchapter I, and Chapter 334, Subchapters H and L of this title (relating to Reimbursement Program and Overpayment Prevention).(2) In addition to paragraph (1) of this subsection, the executive director is always a party in contested case hearings concerning permitting matters, pursuant to, and in accordance with, the provisions of §80.108 of this title (relating to Executive Director Party Status in Permit Hearings).(3) The public interest counsel of the commission is a party to all commission proceedings.(4) The applicant is a party in a hearing on its application.(5) Affected persons shall be parties to hearings on permit applications, based upon the standards set forth in §55.203 of this title (relating to Determination of Affected Person). Regardless of any other law, a state agency, except a river authority, may not be a party to a hearing on an application received by the commission on or after September 1, 2011 unless the state agency is the applicant.(6) The parties to a contested enforcement case include:(A) the respondent(s);(B) any other parties authorized by statute; and(C) in proceedings alleging a violation of or failure to obtain an underground injection control or Texas Pollutant Discharge Elimination System permit, or a state permit for the same discharge covered by a National Pollutant Discharge Elimination System (NPDES) permit that has been assumed by the state under NPDES authorization, any other party granted permissive intervention by the judge. In exercising discretion whether to permit intervention, the judge shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.(7) The parties to a hearing upon a challenge to commission rules include the person(s) challenging the rule and any other parties authorized by statute.(8) The parties to a permit revocation action initiated by a person other than the executive director shall include the respondent and the petitioner.(9) The parties to a post-closure order contested case are limited to:(A) the executive director;(B) the applicant(s); and(C) the Public Interest Counsel.(c) Alignment of participants. Participants (both party and non-party) may be aligned according to the nature of the proceeding and their relationship to it. The judge may require participants of an aligned class to select one or more persons to represent them in the proceeding. Unless otherwise ordered by the judge, each group of aligned participants shall be considered to be one party for the purposes of §80.115 of this title (relating to Rights of Parties) for all purposes except settlement.(d) Effect of postponement. If a hearing is postponed for any reason, any person already designated as a party retains party status.</content><note type="source"><p>Source Note: The provisions of this §80.109 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective December 1, 1997, 22 TexReg 11381; amended to be effective September 23, 1999, 24 TexReg 8276; amended to be effective November 15, 2001, 26 TexReg 9105; amended to be effective January 30, 2003, 28 TexReg 6958; amended to be effective May 3, 2012, 37 TexReg 3147; amended to be effective January 3, 2019, 43 TexReg 8611; amended to be effective May 14, 2020, 45 TexReg 3087.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.110"><num value="80.110">§80.110</num><heading>Public Interest Factors</heading><content>(a) In order to determine the nature and extent of the public interest, the public interest counsel must consider the following factors before deciding to represent the public interest as a party to a commission proceeding on a proposed agency action:(1) the extent to which the action may impact human health;(2) the extent to which the action may impact environmental quality;(3) the extent to which the action may impact the use and enjoyment of property;(4) the extent to which the action may impact the general populace as a whole, rather than impact an individual private interest;(5) the extent and significance of interest expressed in public comment received by the commission regarding the action;(6) the extent to which the action promotes economic growth and the interests of citizens in the vicinity most likely to be affected by the action;(7) the extent to which the action promotes the conservation or judicious use of the state's natural resources; and(8) the extent to which the action serves commission policies regarding regionalization or other relevant considerations regarding the need for facilities or services to be authorized by the action.(b) In prioritizing the public interest counsel's workload, the public interest counsel must consider the following factors:(1) the number and complexity of the issues to be considered in any contested case hearing on the action;(2) the extent to which there is a known disparity in the financial, legal, and technical resources of the potential parties to the action, including consideration of whether the parties are represented by counsel;(3) the extent to which the public interest counsel's participation will further the development of the evidentiary record on relevant environmental or consumer-related issues to be considered by the commission; and(4) staffing and other resource limitations of the office of public interest counsel.</content><note type="source"><p>Source Note: The provisions of this §80.110 adopted to be effective June 7, 2012, 37 TexReg 4055.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.113"><num value="80.113">§80.113</num><heading>Appearance</heading><content>(a) Any person may appear at a hearing in person or by authorized representative. A person appearing in a representative capacity may be required to prove his authority.(b) Except for good cause, the applicant or petitioner shall appear at the public hearing. Failure to so appear may be grounds for withholding consideration of a matter or for dismissal without prejudice.(c) An affidavit may be made by either the party or a representative, unless otherwise provided by statute.(d) Failure to appear at an enforcement hearing may result in a default order under §70.106 of this title (relating to Default Orders).</content><note type="source"><p>Source Note: The provisions of this §80.113 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.115"><num value="80.115">§80.115</num><heading>Rights of Parties</heading><content>(a) A party has the right to conduct discovery, present a direct case, cross-examine witnesses, make oral and written arguments, obtain copies of all pleadings, motions, replies, and other filed documents, receive copies of all notices issued by the commission concerning the proceeding to which the person is a party, and, as directed by the judge, otherwise fully participate as a party in the proceeding. In an enforcement proceeding, no party except the executive director may seek to amend or add to the violations alleged in the petition that initiated the case.(b) Except in enforcement matters, a person may seek leave to withdraw his or her party status at any time upon written request to the judge or by request stated on the record during a hearing. Party status is not withdrawn unless and until the judge grants the request for leave to withdraw.</content><note type="source"><p>Source Note: The provisions of this §80.115 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective December 1, 1997, 22 TexReg 11381.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.117"><num value="80.117">§80.117</num><heading>Order of Presentation</heading><content>(a) In all proceedings, the moving party has the right to open and close. Where several matters have been consolidated, the judge will designate who will open and close. The judge will determine at what stage other parties will be permitted to offer evidence and argument. After all parties have completed the presentation of their evidence, the judge may call upon any party for further material or relevant evidence upon any issue.(b) The applicant shall present evidence to meet its burden of proof on the application, followed by the protesting parties, the public interest counsel, and the executive director. In all cases, the applicant shall be allowed a rebuttal. Any party may present a rebuttal case when another party presents evidence that could not have been reasonably anticipated. For applications subject to subsection (c) of this section, the applicant's presentation of evidence to meet its burden of proof may consist solely of the filing with the State Office of Administrative Hearings (SOAH), and admittance by the judge, of the administrative record as described in subsection (c) of this section.(c) For contested cases regarding a permit application filed on or after September 1, 2015, and referred to SOAH under Texas Water Code, §5.556 or §5.557:(1) The filing of the administrative record as described in §80.118(c) of this title (relating to Administrative Record) establishes a prima facie demonstration that:(A) the draft permit meets all applicable state and federal legal and technical requirements; and(B) a permit, if issued consistent with the draft permit in the administrative record, would protect human health and safety, the environment, and physical property.(2) The applicant, protesting parties, the public interest counsel, and the executive director may present evidence after admittance of the administrative record by the judge.(3) Any party may present evidence to rebut the prima facie demonstration by demonstrating that one or more provisions in the draft permit violate a specifically applicable state or federal requirement that relates to a matter directly referred to SOAH or referred by the commission. If the prima facie demonstration is rebutted, the applicant or the executive director may present additional evidence to support the executive director's draft permit.(d) In all contested enforcement case hearings, the executive director has the right to open and close. In all such cases, the executive director shall be allowed to close with his rebuttal.</content><note type="source"><p>Source Note: The provisions of this §80.117 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective November 15, 2001, 26 TexReg 91058; amended to be effective May 3, 2012, 37 TexReg 3147; amended to be effective December 31, 2015, 40 TexReg 9680; amended to be effective May 14, 2020, 45 TexReg 3087.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.118"><num value="80.118">§80.118</num><heading>Administrative Record</heading><content>(a) Except as provided in subsection (c) of this section, in all permit hearings, the record in a contested case includes, at a minimum, the following certified copies of documents:(1) the executive director's final draft permit, including any special provisions or conditions;(2) the executive director's preliminary decision, or the executive director's decision on the permit application, if applicable;(3) the summary of the technical review of the permit application;(4) the compliance summary of the applicant;(5) copies of the public notices relating to the permit application, as well as affidavits regarding public notices; and(6) any agency document determined by the executive director to be necessary to reflect the administrative and technical review of the application.(b) For purposes of referral to the State Office of Administrative Hearings (SOAH) under §80.6 of this title (relating to Referral to SOAH), of applications filed before September 1, 2015, or applications not referred under Texas Water Code, §5.556 or §5.557, the chief clerk's case file shall contain the administrative record as described in subsection (a) of this section.(c) In all hearings on permit applications filed on or after September 1, 2015, which are referred for hearing under Texas Water Code, §5.556 or §5.557, the administrative record in a contested case filed by the chief clerk with SOAH includes the following certified copies of documents:(1) the items in subsection (a)(1) - (6) of this section, including technical memoranda, that demonstrate the draft permit meets all applicable requirements and, if issued, would protect human health and safety, the environment, and physical property; and(2) the application submitted by the applicant, including revisions to the original submittal.(d) For purposes of referral to SOAH under §80.6 of this title for hearings regarding permit applications filed on or after September 1, 2015, that are referred under Texas Water Code, §5.556 and §5.557, the applicant shall provide two duplicates of the original application, including all revisions to the application, to the chief clerk for inclusion in the administrative record in the format and time required by the procedures of the commission, no later than:(1) for applications referred by the commission, 10 days after the chief clerk mails the commission order; or(2) for applications referred by the applicant or executive director, 10 days after the chief clerk mails the executive director's response to comments.(e) For purposes of referral to SOAH under §80.6 of this title for hearings regarding permit applications filed on or after September 1, 2015, that are referred under Texas Water Code, §5.556 and §5.557, the chief clerk shall file the administrative record with SOAH at least 30 days prior to the hearing.</content><note type="source"><p>Source Note: The provisions of this §80.118 adopted to be effective November 15, 2001, 26 TexReg 9105; amended to be effective December 31, 2015, 40 TexReg 9680; amended to be effective May 14, 2020, 45 TexReg 3087.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.119"><num value="80.119">§80.119</num><heading>Continuance</heading><content>(a) The judge may continue a hearing from time to time and from place to place. If the time and place for the hearing to reconvene are not announced at the hearing, a notice shall be mailed at a reasonable time to all parties and other persons who, in the opinion of the judge, may be affected by action taken as a result of the hearing.(b) Motions for continuance shall be in writing or stated on the record, and shall be sworn unless the facts alleged therein to show good cause are part of the record of the proceeding.(c) Upon joint motion of all parties, the judge may continue the hearing to allow the parties to use alternative dispute resolution procedures or to engage in and complete settlement negotiations.</content><note type="source"><p>Source Note: The provisions of this §80.119 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.125"><num value="80.125">§80.125</num><heading>Agreements</heading><content>Agreements between parties affecting any pending matter must be in writing, signed and filed as a part of the record, or announced at the hearing and entered in the record.</content><note type="source"><p>Source Note: The provisions of this §80.125 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.126"><num value="80.126">§80.126</num><heading>Public Comment in Direct Referrals</heading><content>In permit cases referred under §55.210 of this title (relating to Direct Referrals), all timely public comment on the application and the executive director's responses to timely, relevant and material, or significant public comment shall be admitted into the administrative record as defined by §80.118 of this title (relating to Administrative Record). The response shall specify the provisions of the draft permit that have been changed in response to public comment and the reasons for the changes. The parties may be allowed to respond and to present evidence on each issue raised in public comment or the executive director's responses. The commission shall consider all public comment in making its decision and shall either adopt the executive director's response to public comment or prepare its own response.</content><note type="source"><p>Source Note: The provisions of this §80.126 adopted to be effective December 27, 2001, 26 TexReg 10611.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.127"><num value="80.127">§80.127</num><heading>Evidence</heading><content>(a) General admissibility of evidence.(1) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The Texas Rules of Civil Evidence, as applied in nonjury civil cases in the district courts of this state, shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible under those rules may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent people in the conduct of their affairs. The judge shall give effect to the rules of privilege recognized by law.(2) Testimony will be received only from witnesses called by a party or the judge. The judge may allow or request testimony from any person whose position is not adequately represented by any party, subject to cross-examination by all parties. Such testimony shall only be allowed at the judge's discretion. All parties shall have an opportunity to conduct discovery of such person.(3) Testimony offered by any witness shall be under oath.(4) In a contested case hearing concerning a permit application, the executive director shall not rehabilitate the testimony of a witness unless the witness is an agency employee testifying for the sole purpose of providing information to complete the administrative record.(b) Stipulation. Evidence may be stipulated by agreement of all parties. The judge and commission will determine the weight, if any, to be accorded stipulated evidence.(c) Prefiled testimony and exhibits. The judge may require or allow parties to prepare their direct testimony in written form if the judge determines that a proceeding will be expedited and that the interests of the parties will not be prejudiced substantially. The judge may require the parties to file and serve their direct testimony and exhibits before the beginning of the hearing. The prepared testimony of a witness upon direct examination, either in narrative or question and answer form, may be admitted into evidence as if read or presented orally, upon the witness being sworn and identifying the same as a true and accurate record of what the testimony would be if given orally. The witness shall be subject to cross-examination, and the prepared testimony shall be subject to objection.(d) Exhibits.(1) Exhibits of a documentary character shall not exceed 8 1/2 by 11 inches unless they are folded to the required size. Maps and drawings which are offered as exhibits shall be rolled or folded so as not to unduly encumber the record. Exhibits not conforming to this rule may be excluded.(2) Each exhibit offered shall be tendered for identification and placed in the record. Copies shall be furnished to the judge, each of the parties, and the hearings reporter, unless the judge rules otherwise.(3) If an exhibit has been identified, objected to, and excluded, it may be withdrawn by the offering party. If withdrawn, the exhibit will be returned and the offering party waives all objections to the exclusion of the exhibit. If not withdrawn, the exhibit shall be included in the record for the purpose of preserving the objection to the exclusion of the exhibit.(e) Official notice.(1) The judge may take official notice of all facts judicially cognizable. In addition, the judge may take official notice of any generally recognized facts within the specialized knowledge of the commission.(2) The judge shall notify all parties of any material officially noticed, including any memoranda or data prepared by the executive director and relied upon by the commission in prior proceedings. All parties shall be afforded an opportunity to contest any material so noticed.(f) Invoking the "rule." At the request of the party, and subject to the discretion of the judge, witnesses may be placed under "the rule" as provided by, and subject to the conditions of, Texas Rule of Civil Procedure 267 and Texas Rule of Evidence 614.(g) Staff testimony and evidence. Testimony or evidence given in a contested case permit hearing by agency staff, regardless of which party called the staff witness or introduced the evidence relating to the documents listed in §80.118 of this title (relating to Administrative Record), or any analysis, study, or review that the executive director is required by statute or rule to perform, shall not constitute assistance to the permit applicant in meeting its burden of proof.(h) In contested cases regarding a permit application filed with the commission on or after September 1, 2015, and referred under Texas Water Code, §5.556 or §5.557, the filing of the administrative record as described in §80.118 of this title (relating to Administrative Record) establishes a prima facie demonstration that the executive director's draft permit meets all state and federal legal and technical requirements, and, if issued, would protect human health and safety, the environment, and physical property. The ALJ shall admit the administrative record into evidence for all purposes.</content><note type="source"><p>Source Note: The provisions of this §80.127 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective December 1, 1997, 22 TexReg 11381; amended to be effective November 15, 2001, 26 TexReg 9105; amended to be effective December 31, 2015, 40 TexReg 9680.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.128"><num value="80.128">§80.128</num><heading>Specific Admissibility of Evidence for Concrete Batch Plants</heading><content>If the commission considers air dispersion modeling information in the course of issuing a standard permit under Chapter 116, Subchapter F of this title (relating to Standard Permits) for a plant that performs wet batch, dry batching, or central mixing, evidence regarding air dispersion modeling may not be submitted at a hearing under Texas Health and Safety Code, §382.056.</content><note type="source"><p>Source Note: The provisions of this §80.128 adopted to be effective August 20, 2000, 25 TexReg 7721.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.129"><num value="80.129">§80.129</num><heading>Objections</heading><content>Objections shall be timely noted in the record. Formal exception to the ruling of the judge is not necessary to preserve the objecting party's right on appeal.</content><note type="source"><p>Source Note: The provisions of this §80.129 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.131"><num value="80.131">§80.131</num><heading>Interlocutory Appeals and Certified Questions</heading><content>(a) No interlocutory appeals may be made to the commission by a party to a proceeding before a judge except that in an enforcement action a party may seek an interlocutory appeal to the commission on jurisdictional issues only.(b) On a motion by a party or on the judge's own motion, the judge may certify a question to the commission. Certified questions may be made at any time during a proceeding, regarding commission policy, jurisdiction, or the imposition of any sanction by the judge which would substantially impair a party's ability to present its case. Policy questions for certification purposes include, but are not limited to:(1) the commission's interpretation of its rules and applicable statutes;(2) which rules or statutes are applicable to the proceeding; or(3) whether commission policy should be established or clarified as to a substantive or procedural issue of significance to the proceeding.(c) If a question is certified, the judge shall file a request to answer the certified question with the chief clerk and serve copies on the parties. Within five days after the request is filed, all parties to the proceeding may file briefs or replies. The chief clerk shall provide copies of the request and any briefs or replies to the general counsel and commission. Upon the request of the general counsel or a commissioner to the general counsel, the request will be scheduled for consideration during a commission meeting. The chief clerk shall give the judge and all parties notice of the meeting. The judge may abate the hearing until the commission answers the certified question, or continue with the hearing if the judge determines that no party will be substantially harmed. If the chief clerk does not receive a request from the general counsel to set the question for consideration within 15 days after filing, the request is denied by operation of law.</content><note type="source"><p>Source Note: The provisions of this §80.131 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective May 15, 1997, 22 TexReg 4000; amended to be effective November 15, 2001, 26 TexReg 91058; amended to be effective May 3, 2012, 37 TexReg 3147.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.133"><num value="80.133">§80.133</num><heading>Oral Argument</heading><content>At the conclusion of the hearing, oral argument may be heard upon request of the parties or at the judge's direction. The judge may prescribe reasonable time limits, and may require or accept written briefs in lieu of oral arguments, and may set a schedule for the submission of written briefs.</content><note type="source"><p>Source Note: The provisions of this §80.133 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.135"><num value="80.135">§80.135</num><heading>Submittal of Findings of Fact and Conclusions of Law</heading><content>The judge may request that the parties submit proposed findings of fact and conclusions of law separately stated.</content><note type="source"><p>Source Note: The provisions of this §80.135 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scC/s80.137"><num value="80.137">§80.137</num><heading>Summary Disposition</heading><content>(a) Motion. After the preliminary hearing and up to 21 days before the evidentiary hearing, a party may file a motion for a summary disposition of all or any part of an action. The motion shall state the specific issues upon which summary disposition is sought, and the specific grounds justifying the summary disposition. Except upon leave of the judge, with notice to opposing parties, the motion, any supporting affidavits, and any other relevant documentary evidence shall be filed and served at least 21 days before the date set for ruling on the motion.(b) Written response. Except upon leave of the judge , a party may file and serve a written response, any supporting affidavits, and any other relevant documentary evidence at least seven days before the date set for ruling on the motion.(c) Summary disposition. Summary disposition shall be rendered if the pleadings, admissions, affidavits, stipulations, deposition transcripts, interrogatory answers, other discovery responses, exhibits and authenticated or certified public records, if any, on file in the case at the time of the hearing, or filed thereafter and before judgment with the permission of the judge, show that there is no genuine issue as to any material fact and the moving party is entitled to summary disposition as a matter of law on all or some of the issues expressly set out in the motion or in an answer or any other response.(d) Testimony. A summary disposition may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the judge must be guided solely by the opinion testimony of experts. The evidence must be clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. No oral testimony shall be received at a hearing on a motion for summary disposition.(e) Appendices, references and other use of discovery not otherwise on file. Discovery products not on file with the chief clerk may be used as summary disposition evidence if copies of the material, appendices containing the evidence, or a notice containing specific references to the discovery or specific references to other instruments, are filed and served on all parties together with a statement of intent to use the specified discovery as summary disposition proofs:(1) at least 21 days before the date set for ruling on the motion if such proofs are to be used to support the summary disposition; or(2) at least seven days before the date set for ruling on the motion if such proofs are to be used to oppose the summary disposition.(f) Form of affidavits; further testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The judge may permit affidavits to be supplemented or opposed by depositions or by further affidavits. Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.(g) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the judge may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.(h) Argument and ruling on motion. At the discretion of the judge, a hearing may be held and oral argument may be presented on the motion. The judge may rule on the motion with or without a hearing.(i) Disposition of motion. If the judge grants a motion for summary disposition on all parts of an action, the judge shall close the hearing and prepare a proposal for decision. If the judge grants a motion for summary disposition on any part of an action, the judge shall not take evidence or hear further argument upon that part of the action, and shall enter an order specifying the facts that appear without substantial controversy, and directing such further proceedings as are just. Upon the hearing of the application the facts so specified shall be deemed established, and the hearing shall be conducted accordingly.(j) Proposal for decision. At the close of the hearing, the judge shall include in the proposal for decision a statement of reasons, findings of fact and conclusions of law in support of any summary disposition rendered.</content><note type="source"><p>Source Note: The provisions of this §80.137 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c80/scD"><num value="D">SUBCHAPTER D</num><heading>DISCOVERY</heading><section identifier="/us/state/tx/tac/t30/p1/c80/scD/s80.151"><num value="80.151">§80.151</num><heading>Discovery Generally</heading><content>(a) Discovery shall be conducted according to the Texas Rules of Civil Procedure, unless commission rules provide or the judge orders otherwise. The Texas Rules of Civil Procedure shall be interpreted consistently with this chapter, the Texas Water Code, the Texas Health and Safety Code, and the Texas Administrative Procedure Act. Drafts of prefiled testimony are not discoverable.(b) Discovery in contested case hearings using prefiled testimony.(1) This subsection is applicable to contested case hearings for applications which are subject to the jurisdiction of the State Office of Administrative Hearings (SOAH) under 1 TAC §155.51 (relating to Jurisdiction), except for:(A) water ratemaking proceedings; and(B) sewer ratemaking proceedings.(2) All discovery on a party must be completed before the deadline for that party to submit its prefiled testimony.(3) In cases where all parties share the same deadline for submission of prefiled testimony, a single deadline for completion of discovery shall apply to all parties.(4) If parties have different deadlines for the submission of prefiled testimony, the deadline to complete discovery on a party shall be no later than the final deadline for that party to submit prefiled testimony. After a party's final deadline to submit its prefiled testimony in a contested case, that party is no longer subject to discovery from other parties in the case.(5) The requirements of this subsection do not relieve a party's duty to supplement its discovery responses as required by Texas Rules of Civil Procedure, §193.5 and §195.6.(c) All other contested case hearings are governed by this section as it existed immediately before the effective date of this section and the rule is continued in effect for that purpose.</content><note type="source"><p>Source Note: The provisions of this §80.151 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective May 3, 2012, 37 TexReg 3147; amended to be effective May 14, 2020, 45 TexReg 3087.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scD/s80.152"><num value="80.152">§80.152</num><heading>Scope and Level of Discovery</heading><content>(a) Any application that is declared administratively complete on or after September 1, 1999 is subject to this section.(b) The scope of permissible discovery in contested case hearings is limited to:(1) any matter reasonably calculated to lead to the discovery of admissible evidence regarding any issue referred to the administrative law judge by the commission or that the administrative law judge has agreed to consider; and(2) production of documents:(A) reviewed or relied on in preparing application materials or selecting the site of the proposed facility; or(B) relating to the ownership of the applicant or of the owner or operator of the facility or proposed facility.(c) The level of discovery for all contested case hearings shall be Level 3 under Texas Rules of Civil Procedure (TRCP) 190.4. However, the administrative law judge shall set an appropriate limit on the time for depositions and the number of interrogatories, provided that the total time per side for oral depositions may not exceed 50 hours and the total number of written interrogatories that any party may serve on any other party may not exceed 25. If one side designates more than two experts, the opposing side may have an additional six hours of total deposition time for each additional expert designated.</content><note type="source"><p>Source Note: The provisions of this §80.152 adopted to be effective September 23, 1999, 24 TexReg 8276.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scD/s80.153"><num value="80.153">§80.153</num><heading>Issuance of Subpoena or Commission To Take Deposition</heading><content>(a) Upon proper request by a party, the judge shall issue subpoenas and commissions to take depositions according to the APA. A request for issuance shall be filed with the chief clerk, and a copy shall be served on the judge and the parties.(b) Before seeking issuance of either a subpoena or commission, the requestor shall attempt to secure voluntary appearance of the witness or production of materials. If this is not possible, the requestor shall indicate what circumstances prevent such voluntary appearance or production in the request.(c) If the requestor and witness sign an Agreement to Waive Fee form, subpoenas and commissions may be issued without a witness fee deposit. Only a non-party witness or deponent is entitled to receive this fee to the extent provided in §80.21 of this title (relating to Witness Fees).(d) If the witness fee is not waived, the requestor shall make the witness fee deposit in the appropriate amount as indicated on the forms requesting issuance. This amount is based on an estimate of the mileage to be traveled to and from the hearing or deposition, if over 25 miles, and days expected to be spent in the hearing or deposition. This deposit should be made payable to the commission and should be filed with chief clerk and must be made before issuance of the subpoena or commission.(e) Upon deposit of all necessary monies and completion of all forms, the subpoena or commission shall be issued to the requestor to effect service.(f) If a subpoena or commission to take deposition is served on an agency employee, the executive director's legal staff may participate in defending the deposition.</content><note type="source"><p>Source Note: The provisions of this §80.153 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective November 15, 2001, 26 TexReg 9105.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scD/s80.155"><num value="80.155">§80.155</num><heading>Form of Subpoena</heading><content>The heading of the subpoena shall be "The State Office of Administrative Hearings." It shall state the style of the hearing, that the hearing is pending before SOAH, the time and place at which the witness is required to appear, and the party at whose insistence the witness is summoned. It shall be signed by the judge, but need not be under the seal of SOAH and the date of issuance shall be noted thereon. It may be made returnable forthwith, or on any date for which hearing of the docketed matter may be set. It shall be addressed to any sheriff or constable of the State of Texas or other person authorized to serve subpoenas as provided in Rule 178, Texas Rules of Civil Procedure.</content><note type="source"><p>Source Note: The provisions of this §80.155 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c80/scF"><num value="F">SUBCHAPTER F</num><heading>POST HEARING PROCEDURES</heading><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.252"><num value="80.252">§80.252</num><heading>Judge's Proposal for Decision</heading><content>(a) Any application that is declared administratively complete on or after September 1, 1999, is subject to this section.(b) Judge's proposal for decision regarding an application filed before September 1, 2015, applications not referred under Texas Water Code (TWC), §5.556 or §5.557, or applications not subject to TWC, §11.122(b-1). After closing the hearing record, the judge shall file a written proposal for decision with the chief clerk no later than the end of the maximum expected duration set by the commission and shall send a copy by certified mail to the executive director and to each party.(c) Judge's proposal for decision regarding an application filed on or after September 1, 2015, and referred under TWC, §5.556 or §5.557. After closing the hearing record, the judge shall file a written proposal for decision with the chief clerk no later than 180 days after the first day of the preliminary hearing, the date specified by the commission, or the date to which the deadline was extended pursuant to Texas Government Code, §2003.047(e-3). Additionally, the judge shall send a copy by certified mail to the executive director and to each party.(d) Judge's proposal for decision regarding an application filed on or after September 1, 2017, and subject to TWC, §11.122(b-1). After closing the hearing record, the judge shall file a written proposal for decision with the chief clerk no later than 270 days after the first day of the preliminary hearing, the date specified by the commission, or the date to which the deadline was extended pursuant to Texas Government Code, §2003.047(e-3). Additionally, the judge shall send a copy by certified mail to the executive director and to each party.(e) Proposal for decision: adverse to a party. A proposal for decision shall be filed by the judge who conducted the hearing or by a substitute judge who has read the record. If the proposal for decision is adverse to a party to the proceeding, it shall contain a statement of the reasons for the proposal as well as findings of fact and conclusions of law which support the proposal on any issue referred by the commission or added by the judge. If any party has filed proposed findings of fact upon the judge's request, the judge shall include with the proposal for decision recommended rulings on all findings of fact so proposed. Where more than one judge has been assigned to hear a particular proceeding, the presiding judge will issue the proposal for decision and the other assigned judge or judges may file comments.(f) Proposal for decision: not adverse to any party. If the proposal for decision is not adverse to any party to the proceeding, the judge may informally dispose of the matter by proposing to the commission an order which need not contain findings of fact, conclusions of law, or reasons for the proposal. If the proposal for decision is not adverse to any party and a permit is to be issued, the judge need not propose an order to the commission.</content><note type="source"><p>Source Note: The provisions of this §80.252 adopted to be effective September 23, 1999, 24 TexReg 8276; amended to be effective November 15, 2001, 26 TexReg 9105; amended to be effective December 31, 2015, 40 TexReg 9680; amended to be effective August 16, 2018, 43 TexReg 5214.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.253"><num value="80.253">§80.253</num><heading>Enforcement Proposal for Decision</heading><content>(a) In an enforcement case, a proposal for decision shall also include a proposal for remedial relief (technical ordering provisions) where appropriate, and one of the following recommendations:(1) that a violation has occurred and that a specific amount of penalties should be assessed;(2) that a violation has occurred but that no penalty should be assessed; or(3) that no violation has occurred.(b) When recommending an administrative penalty, the judge shall analyze each factor prescribed by the applicable statute to be considered by the commission in determining the amount of the penalty. The judge shall recommend to the commission an appropriate penalty amount based upon the evidence presented at the hearing and the factors given in the applicable statutes.(c) Weight to be given by the judge to individual statutory factors for determining penalty amount need not be equal and may vary depending on the facts of the particular case. The absence of evidence as to any particular factor does not negate the ability of the judge to arrive at a finding of an appropriate penalty based upon the totality of the circumstances, though such lack of evidence may be a factor in determining the penalty amount.</content><note type="source"><p>Source Note: The provisions of this §80.253 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.254"><num value="80.254">§80.254</num><heading>Settlement of Enforcement Cases</heading><content>The executive director and the respondent may reach an agreement, or settlement, in an enforcement action such that an agreed order is entered into in accordance with §70.10 of this title (relating to Agreed Orders). If there is a party to the case that dissents from the proposed settlement, the judge shall give such party a reasonable time to file comments, and shall forward all timely filed comments to the commission together with the proposed settlement. After any required public notice and opportunity for comment on proposed settlements and consideration of the record, the commission or the executive director may either approve the proposed settlement, or disapprove it and remand the case to the State Office of Administrative Hearings for hearing.</content><note type="source"><p>Source Note: The provisions of this §80.254 adopted to be effective December 1, 1997, 22 TexReg 11381; amended to be effective July 22, 2010, 35 TexReg 6292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.255"><num value="80.255">§80.255</num><heading>Waiver of Right To Review Judge's Proposal</heading><content>Any party may waive the right to review and comment upon the judge's proposal for decision. The waiver shall be either in writing or stated on the record at the hearing.</content><note type="source"><p>Source Note: The provisions of this §80.255 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.257"><num value="80.257">§80.257</num><heading>Pleadings Following Proposal for Decision</heading><content>(a) Pleadings. Unless right of review has been waived, any party may within 20 days after the date of issuance of the proposal for decision, file exceptions or briefs. The request shall be served on the parties and the judge, shall specify the issues to be briefed and shall set reasonable deadlines for the executive director's response and the parties replies to that response, avoiding delay of the matter to the extent practicable. Proposed findings of fact may be filed when permitted or requested by the commission. Any replies to exceptions, briefs, or proposed findings of fact shall be filed within 30 days after the date of issuance on the proposal of decision.(b) Change of filing deadlines. On his own motion or at the request of a party, the general counsel may change the deadlines to file pleadings following the proposal for decision. A party requesting a change must file a written request with the chief clerk, and must serve a copy on the general counsel, the judge, and the other parties. The request must explain that the party requesting the change has contacted the other parties, and whether the request is opposed by any party. The request must include proposed dates (preferably a range of dates) and must indicate whether the judge and the parties agree on the proposed dates.</content><note type="source"><p>Source Note: The provisions of this §80.257 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective November 15, 2001, 26 TexReg 9105; amended to be effective May 3, 2012, 37 TexReg 3147.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.259"><num value="80.259">§80.259</num><heading>Amending the Proposal for Decision</heading><content>The judge may file an amended proposal for decision in response to exceptions, replies, or briefs submitted by the parties. The parties are not entitled to file exceptions or briefs in response to the amended Proposal for Decision (PFD), but may raise any issues before the commission as permitted by the commission at the time of oral presentation.</content><note type="source"><p>Source Note: The provisions of this §80.259 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.261"><num value="80.261">§80.261</num><heading>Scheduling Commission Meetings</heading><content>(a) The chief clerk, in coordination with the judge, shall schedule motions by parties requiring commission action and the presentation of the proposal for decision. The judge, when transmitting the proposal for decision, shall notify the parties of the date of the commission meeting and the deadlines for the filing of exceptions and replies. The general counsel, either by agreement of the parties and the judge, or on the general counsel's own motion, may reschedule the presentation of the proposal for decision. The chief clerk shall send notice of the rescheduled meeting date to the parties no later than ten days before the rescheduled meeting.(b) Consistent with notices required by law, the commission may consolidate related matters if the consolidation will not injure any party and may save time and expense or otherwise benefit the public interest and welfare.(c) The commission may sever issues in a proceeding or hold special hearings on separate issues if doing so will not injure any party and may save time and expense or benefit the public interest and welfare.</content><note type="source"><p>Source Note: The provisions of this §80.261 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective November 15, 2001, 26 TexReg 9105; amended to be effective May 3, 2012, 37 TexReg 3147.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.263"><num value="80.263">§80.263</num><heading>Oral Presentation before the Commission</heading><content>In proceedings where a judge has held a public hearing and has issued a proposal for decision or other report to the commission, all oral presentations before the commission shall be limited to five minutes each, excluding time for answering questions, unless the chairman or general counsel establishes other limitations. Before the commission meeting, the general counsel may allot time for oral presentations. Oral presentations and responses to questions shall be directed to the commission.</content><note type="source"><p>Source Note: The provisions of this §80.263 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.265"><num value="80.265">§80.265</num><heading>Reopening the Record</heading><content>The commission, on the motion of any party or on its own motion, may order the judge to reopen the record for further proceedings on specific issues in dispute. The commission's order shall include instructions as to the subject matter of further proceedings and the judge's duties in preparing supplemental materials or revised orders based upon those proceedings for the commission's adoption.</content><note type="source"><p>Source Note: The provisions of this §80.265 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.267"><num value="80.267">§80.267</num><heading>Decision</heading><content>(a) Decision. The commission shall make its decision upon the expiration of 30 days or later following service of the judge's proposal for decision, unless the parties have waived review. The decision, if adverse to any party, shall include findings of fact and conclusions of law separately stated. If any party has filed proposed findings of fact at the request of the judge, the commission will include in its decision a ruling on the proposed findings of fact, unless waived by the party.(b) Prompt decision. The commission's decision or order should be signed not later than 60 days after the date that the hearing is finally closed. In a contested case heard by an administrative law judge, the agency or the administrative law judge who conducts the contested case hearing may extend the period in which the decision or order may be signed.</content><note type="source"><p>Source Note: The provisions of this §80.267 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective December 31, 2015, 40 TexReg 9680.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.269"><num value="80.269">§80.269</num><heading>Commission's Decision after Contested Enforcement Case Hearing</heading><content>(a) In an enforcement case, a decision shall also include provisions requiring remedial relief (technical ordering provisions), as necessary, and one of the following findings:(1) that a violation has occurred and that a specific amount of penalties should be assessed;(2) that a violation has occurred but that no penalty should be assessed; or(3) that no violation has occurred.(b) When assessing an administrative penalty, the commission shall analyze each factor prescribed by the applicable statute to be considered by the commission in determining the amount of the penalty.(c) Weight to be given by the commission to individual statutory factors for determining penalty amount need not be equal and may vary depending on the facts of the particular case. The absence of evidence as to any particular factor does not negate the ability of the commission to arrive at a finding of an appropriate penalty based upon the totality of the circumstances, though such lack of evidence may be a factor in reducing or increasing the penalty amount.</content><note type="source"><p>Source Note: The provisions of this §80.269 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.272"><num value="80.272">§80.272</num><heading>Motion for Rehearing</heading><content>(a) Any decision in an administrative hearing before the commission that is subject to this section.(b) Filing motion. A motion for rehearing is a prerequisite to appeal. The motion shall be filed with the chief clerk not later than 25 days after the date that the decision or order is signed, unless the time for filing the motion for rehearing has been extended under Texas Government Code, §2001.142, and §80.276 of this title (relating to Request for Extension to File Motion for Rehearing), by agreement under Texas Government Code, §2001.147, or by the commission's written order issued pursuant to Texas Government Code, §2001.146(e). On or before the date of filing of a motion for rehearing, a copy of the motion shall be mailed or delivered to all parties with certification of service furnished to the commission. Copies of the motion shall be sent to all other parties using the following notification procedures:(1) personally;(2) if agreed to by the party or attorney to be notified, by electronic means sent to the current email address or telecopier number of the party's attorney of record or of the party if the party is not represented by counsel; or(3) by first class, certified, or registered mail sent to the last known address of the party's attorney of record or of the party if the party is not represented by counsel.(c) The motion shall contain:(1) the name and representative capacity of the person filing the motion;(2) the style and official docket number assigned by SOAH, and official docket number assigned by the commission;(3) the date of the decision or order;(4) the findings of fact or conclusions of law, identified with particularity, that are the subject of the complaint and any evidentiary or legal ruling claimed to be erroneous; and(5) a statement of the legal and factual basis for the claimed error.(d) Reply to motion for rehearing. A reply to a motion for rehearing must be filed with the chief clerk not later than 40 days after the date that the decision or order is signed, or not later than 10 days after the date that a motion for rehearing is filed if the time for filing the motion for rehearing has been extended by an agreement under Texas Government Code, §2001.147 or by a written order issued by the commission pursuant to Texas Government Code, §2001.146(e). Copies of the reply shall be sent to all other parties using the following notification procedures:(1) personally;(2) if agreed to by the party or attorney to be notified, by electronic means sent to the current email address or telecopier number of the party's attorney of record or of the party if the party is not represented by counsel; or(3) by first class, certified, or registered mail sent to the last known address of the party's attorney of record or of the party if the party is not represented by counsel.(e) Ruling on motion for rehearing.(1) Upon the request of the general counsel or a commissioner, the motion for rehearing will be scheduled for consideration during a commission meeting. Unless the commission extends time or rules on the motion for rehearing not later than 55 days after the date that the decision or order is signed, the motion is overruled by operation of law.(2) A motion for rehearing may be granted in whole or in part. When a motion for rehearing is granted, the decision or order is nullified. The commission may reopen the hearing to the extent it deems necessary. Thereafter, the commission shall render a decision or order as required by this subchapter.(f) Extension of time limits. With the agreement of the parties, on a motion of any party for cause shown, or on their own motion, the commission or the general counsel may, by written order, extend the period of time for filing motions for rehearing and replies and for taking action on the motions so long as the period for taking agency action provided that the agency extends the time or takes the action not later than the 10th day after the date that the period for filing a motion or reply or taking agency action expires. The commission may not extend the period for taking agency action beyond 100 days after the date that the decision or order is signed.(g) Motion overruled. In the event of an extension, the motion for rehearing is overruled by operation of law on the date fixed by the order, or in the absence of a fixed date, 100 days after the date that the decision or order is signed.(h) Subsequent motion for rehearing. A subsequent motion for rehearing is not required after the commission rules on a motion for rehearing unless the order disposing of the original motion for rehearing:(1) modifies, corrects, or reforms in any respect the decision or order that is the subject of the complaint, other than a typographical, grammatical, or other clerical change identified as such by the agency in the order, including any modification, correction, or reformation that does not change the outcome of the contested case; or(2) vacates the decision or order that is the subject of the motion and provides for a new decision or order.(i) A subsequent motion for rehearing required by subsection (h) of this subsection must be filed not later than 20 days after the date the decision or order disposing of the original motion for rehearing is signed.</content><note type="source"><p>Source Note: The provisions of this §80.272 adopted to be effective September 23, 1999, 24 TexReg 8276; amended to be effective February 3, 2000, 25 TexReg 595; amended to be effective December 31, 2015, 40 TexReg 9680.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.273"><num value="80.273">§80.273</num><heading>Decision Final and Appealable</heading><content>Except as provided in §80.274 of this title (relating to Motion for Rehearing Not Required in Certain Cases), in the absence of a timely motion for rehearing, a decision or order of the commission is final on the expiration of the period for filing a motion for rehearing. If a party files a motion for rehearing, a decision or order of the commission is final and appealable on the date of the order overruling the final motion for rehearing or on the date the motion is overruled by operation of law.</content><note type="source"><p>Source Note: The provisions of this §80.273 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective December 1, 1997, 22 TexReg 11381; amended to be effective December 31, 2015, 40 TexReg 9680.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.274"><num value="80.274">§80.274</num><heading>Motion for Rehearing Not Required in Certain Cases</heading><content>(a) A motion for rehearing is not required, and §80.272 and §80.273 of this title (relating to Motion for Rehearing and Decision Final and Appealable) do not apply when a final commission order is issued under Texas Government Code, §2001.144(a)(3) or (4).(b) The commission may issue an order that is final under Texas Government Code, §2001.144(a)(4) if all parties agree to the specified date in writing or on the record, and if the specified date is not before the date the order is signed. The commission is not required to issue an order under Texas Government Code, §2001.144(a)(4) even when requested by all parties. When the parties request, and the commission agrees, to issue a final order under Texas Government Code, §2001.144(a)(4), each party shall thereby waive any allegations of error not in the party's exceptions to the proposal for decision, reply to exceptions, or discussed as an issue in the judge's proposal for decision.</content><note type="source"><p>Source Note: The provisions of this §80.274 adopted to be effective December 1, 1997, 22 TexReg 11381; amended to be effective December 31, 2015, 40 TexReg 9680.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.275"><num value="80.275">§80.275</num><heading>Appeal of Final Decision</heading><content>(a) Petition. A person affected by a final decision or order of the commission may file a petition for judicial review within 30 days after the decision or order is final and appealable. General procedures for appealing an order of the commission in contested cases are governed by the APA.(b) The record. The record in a contested case shall include the following:(1) all pleadings, motions, and intermediate rulings;(2) evidence received or considered;(3) a statement of matters officially noticed;(4) questions and offers of proof, objections, and rulings on them;(5) summaries of the results of any conferences held before or during the hearing;(6) proposed findings, exceptions, and briefs;(7) any decision, opinion, or report by the officer presiding at the hearing;(8) prefiled testimony;(9) all staff memoranda or data submitted to or considered by the judge or commissioners who are involved in the decision; and(10) the final order and all interlocutory orders.</content><note type="source"><p>Source Note: The provisions of this §80.275 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.276"><num value="80.276">§80.276</num><heading>Request for Extension to File Motion for Rehearing</heading><content>(a) If an adversely affected party or the party's attorney of record does not receive the notice or acquire actual knowledge of a signed commission decision or order before the 15th day after the date that the decision or order is signed, a period specified by or agreed to under Texas Government Code, §§2001.144(a), 2001.146, 2001.147, 2001.176(a), or §80.272 of this title (relating to Motion for Rehearing) relating to a decision or order or motion for rehearing begins, with respect to that party, on the date the party receives the notice or acquires actual knowledge of the signed decision or order, whichever occurs first. The period may not begin earlier than 15 days or later than 90 days after the date that the decision or order was signed.(b) To establish a revised period under subsection (a) of this section, the adversely affected party must prove, on sworn motion and notice, that the date the party received notice from the commission or acquired actual knowledge of the signing of the decision or order was at least 15 days after the date that the decision or order was signed.(c) The commission must grant or deny the sworn motion not later than the date of the commission's next agenda meeting for which proper notice can be provided.(d) If the commission fails to grant or deny the motion at the commission's next agenda meeting for which proper notice can be provided, the motion is considered granted.(e) If the sworn motion filed under subsection (b) of this section is granted with respect to the party filing that motion, all the periods specified by or agreed to under Texas Government Code, §§2001.144(a), 2001.146, 2001.147, 2001.176(a), or §80.272 of this title relating to a decision or order, or motion for rehearing, shall begin on the date specified in the sworn motion that the party first received the notice required by Texas Government Code, §2001.142(a) and (b) or acquired actual knowledge of the signed decision or order. The date specified in the sworn motion shall be considered the date the decision or order was signed.</content><note type="source"><p>Source Note: The provisions of this §80.276 adopted to be effective December 31, 2015, 40 TexReg 9680.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.277"><num value="80.277">§80.277</num><heading>Appeals of Enforcement Orders</heading><content>(a) Within the 30-day period immediately following the day on which the commission's order in a contested case is final, in accordance with the APA, the person charged with a penalty shall pay the penalty in full.(b) The person assessed a penalty by the commission may suspend enforcement of the penalty while seeking judicial review by forwarding the amount of the penalty to the commission for placement in an escrow account or posting with the commission a supersedeas bond payable to the Texas Natural Resource Conservation Commission for the amount of the penalty, within the 30-day period immediately following the day on which the commission's order is final.(c) In the event the person assessed fails to take any of the actions in subsections (a) or (b) of this section, the executive director or an authorized representative may forward the matter to the attorney general for enforcement.(d) In the event that the final appellate determination is against the person assessed a penalty, he or she shall pay the commission the full amount of the penalty, and the commission shall deposit the amount of the penalty in the state treasury to the credit of the general revenue fund.(e) To the extent that the final appellate determination is in favor of the person assessed, he or she shall be absolved of liability for payment of that portion of the amount of the penalty as is required to comply with that determination, and the commission shall return that amount of the penalty assessed which is excessive according to that determination, or any amount of the supersedeas bond or escrow account filed with the commission for the purpose of suspending the enforcement of the penalty while seeking judicial review which is in excess of the final penalty determination with a certificate of its return.(f) Any supersedeas bond or escrow account filed with the commission for the purpose of suspending the enforcement of the penalty while seeking judicial review of the final decision of the commission shall be drawn according to a form on file in the Office of the Chief Clerk. Upon request, the chief clerk shall certify the receipt of the amount of any penalty received by the commission for the purpose of suspending the enforcement of the penalty while seeking judicial review.</content><note type="source"><p>Source Note: The provisions of this §80.277 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c80/scF/s80.279"><num value="80.279">§80.279</num><heading>Costs of Record on Appeal</heading><content>A party who appeals a final decision in a contested case shall pay all costs of preparation of the original or a certified copy of the record of the agency proceeding that is required to be transmitted to the reviewing court. A charge imposed as provided by this section is considered to be a court cost and may be assessed by the court in accordance with the Texas Rules of Civil Procedure.</content><note type="source"><p>Source Note: The provisions of this §80.279 adopted to be effective June 6, 1996, 21 TexReg 4763.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c86"><num value="86">CHAPTER 86</num><heading>SPECIAL PROVISIONS FOR CONTESTED CASE HEARINGS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c86/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL</heading><section identifier="/us/state/tx/tac/t30/p1/c86/scA/s86.1"><num value="86.1">§86.1</num><heading>Special Procedures To Prevail</heading><content>This chapter supplements Chapter 80 of this title (relating to Contested Case Hearings) by providing special procedures to be followed for particular types of hearings. Whenever there is a conflict between this chapter and Chapter 80 of this title, this chapter prevails.</content><note type="source"><p>Source Note: The provisions of this §86.1 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c86/scB"><num value="B">SUBCHAPTER B</num><heading>WATER RIGHTS ADJUDICATION</heading><section identifier="/us/state/tx/tac/t30/p1/c86/scB/s86.11"><num value="86.11">§86.11</num><heading>General</heading><content>(a) Applicability. This subchapter applies to the commission's duties, responsibilities, and activities under the Water Rights Adjudication Act of 1967, Texas Water Code, §§11.301, et seq.(b) Motions. A motion may be filed with the commission as provided by §80.56 of this title (relating to Motions), with copies served only on those parties participating in the evidentiary hearing; except that, if there are other parties whose interests are likely to be substantially affected by the relief sought in the motion, copies shall be served on each such party or his representative.(c) Mailing list. The commission shall maintain an official mailing list for each stream or segment being adjudicated, which shall include the following:(1) the persons within the stream or segment being adjudicated who filed claims in accordance with Texas Water Code, §11.307;(2) all other persons who filed claims under Texas Water Code, §11.303, or who have permits or certified filings within the segment being adjudicated;(3) all other diverters of state water within the segment being adjudicated who can be reasonably ascertained from the records of the commission or from the executive director's investigation;(4) all attorneys or other interested persons who request to be put on the mailing list, either in writing or on the record during one of the hearings in the adjudication; and(5) all contesting parties.(d) Definition. As used in this subchapter, the term "mailing list" means the commission's official mailing list for the stream or segment being adjudicated.</content><note type="source"><p>Source Note: The provisions of this §86.11 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scB/s86.12"><num value="86.12">§86.12</num><heading>Prehearing Procedures</heading><content>(a) Initiation of adjudication. The water rights in any stream or segment may be adjudicated as provided in Texas Water Code, §11.304:(1) on motion of the commission;(2) on petition to the commission signed by ten or more claimants of water rights from the source of supply; or(3) on petition of the Texas Water Development Board.(b) Investigation and preparation of investigation report. Promptly after an adjudication is initiated under Texas Water Code, §11.304, the commission shall investigate the facts and conditions necessary to determine whether the adjudication would be in the public interest.(1) If the commission finds that an adjudication would be in the public interest, it shall enter an order to that effect, designating the stream or segment to be adjudicated and directing the executive director to investigate the area involved to gather relevant data and information essential to the proper understanding of the claimed water rights involved. The results of the investigation shall be reduced to a written report and made a matter of record in the commission's office. This report shall be available for public inspection during regular business hours of the commission at its offices in Austin.(2) In connection with the investigation, the executive director shall have a map or plat made showing, with substantial accuracy, the course of the stream or segment, and the location of reservoirs and diversion works and places of use, including irrigated lands which are relevant to the alleged water rights involved.(c) Notice of adjudication. The commission shall prepare a notice of adjudication describing the stream or segment to be adjudicated and the date by which all claims of water rights in the stream or segment must be filed with the commission under Texas Water Code, §11.307.(1) The notice shall be published once a week for two consecutive weeks in one or more newspapers having general circulation in the counties in which the stream or segment is located.(2) The notice shall be sent by first-class mail to all persons on the mailing list.(3) The notice required under Texas Water Code, §11.308 may be incorporated with the notice required by this rule and Texas Water Code, §11.306.(d) Filing of claims. Every person claiming a water right of any nature, except for domestic and livestock purposes, from the stream or segment under adjudication, shall file a sworn claim under Texas Water Code, §11.307 within the time prescribed in the notice of adjudication or any extension.(1) Sworn claims should state:(A) the name and mailing address of the claimant;(B) the nature of the right claimed, including the number of any permit, certified filing or claim filed under Texas Water Code, §11.303;(C) the maximum acre-feet of water claimed;(D) the purpose of use claimed;(E) the date of first diversion of state water for other than domestic or livestock purposes;(F) the earliest priority date claimed;(G) the source of water;(H) a description of diversion works;(I) the maximum total diversion rate claimed;(J) a description of impounding facilities, including the location, whether it is on-channel or off-channel, and the impounding capacity, surface area, and average depth at normal maximum operating level;(K) the maximum number of acres per year if an irrigation right is claimed; and(L) all other information necessary to show the nature and extent of the claim.(2) The commission shall prescribe forms for claims filed under this rule, but use of commission forms is not mandatory.(3) The commission may extend the time for filing claims under this rule and Texas Water Code, §11.307 and may accept a claim filed beyond the deadline or any such extension.(4) All water rights claimants, except users of water for domestic or livestock purposes, shall file a sworn statement of the claim of right with the commission. Failure to file a sworn statement under this provision in accordance with the commission's notice of adjudication bars the recognition of any right in the claimant.(e) Notice of hearings. The commission shall set a time and place for hearing of all claims in the stream or segment being adjudicated.(1) The commission shall give 30 day's notice of the commencement of the hearings by certified mail to all persons on the mailing list as described in paragraphs (2)-(4) of this subsection. This notice may be included in the notice of adjudication provided for in Texas Water Code, §11.306.(2) The commission shall schedule individual evidentiary hearings for each diverter of state water within the segment being adjudicated who can be ascertained from the records of the commission or from the executive director's investigation. The commission shall give notice by first-class mail to all other persons on the mailing list.(3) A final docket of hearings will be scheduled as necessary for individual claims that were continued during the regularly scheduled hearings. Notice of the date, time, and place of these hearings will be mailed by certified mail to each person appearing on the docket and by first-class mail to all other persons on the mailing list.(4) The commission may continue hearings from time to time and place to place. At the time of continuation, the commission shall state on the record the date, time, and place of the subsequent hearing. If unknown at the time of continuation, the commission shall give notice of the date, time, and place of the subsequent hearing to all parties on the mailing list.</content><note type="source"><p>Source Note: The provisions of this §86.12 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scB/s86.13"><num value="86.13">§86.13</num><heading>Jurisdiction Hearing</heading><content>(a) Purpose. Hearings in each adjudication segment will begin with a hearing to establish the commission's jurisdiction to adjudicate all claims of water rights in the stream or segment and to provide information concerning the adjudication.(b) Procedure. Exhibits will be introduced to evidence jurisdiction. The qualifications of the project engineer or project manager, and any assistants, will be examined and ruling made on their abilities to testify in the upcoming individual evidentiary hearings as expert witnesses. The expert witnesses so qualified will remain under oath throughout all hearings in the adjudication of the stream or segment.(c) Question and answer. The commission will entertain questions of general concern to all parties in the adjudication from any person attending the hearing.</content><note type="source"><p>Source Note: The provisions of this §86.13 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scB/s86.14"><num value="86.14">§86.14</num><heading>Procedure at Individual Evidentiary Hearings</heading><content>(a) Opening statements and exhibits. The commission will call up the individual claim and entertain any opening statement on behalf of any party. Exhibits may be tendered into evidence after the parties present are provided an opportunity to view them.(b) Order of presentation. Unless otherwise directed by the commission, the hearing will proceed as follows:(1) after the introduction of exhibits, the project engineer or project manager will orient the parties to facts concerning the claim derived from his investigation;(2) the claimant will present evidence concerning the claim;(3) the executive director may then present evidence;(4) upon completion of presentation by the claimant and the executive director, any other party may offer relevant evidence; and(5) closing arguments will be entertained.</content><note type="source"><p>Source Note: The provisions of this §86.14 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scB/s86.15"><num value="86.15">§86.15</num><heading>Preliminary Determination</heading><content>(a) Preparation of judge's recommendations. A judge presiding at the individual evidentiary hearings or one who has read the record shall prepare written recommendations, including proposed findings of fact and conclusions of law, in regard to each individual claim and shall submit his recommendations and the record of the hearing to the commission for its consideration.(b) Preparation of preliminary determination. After reviewing any judge's recommendations and the record of the hearings, the commission shall adopt a preliminary determination of all claims of water rights in the segment being adjudicated as required by Texas Water Code, §11.309.(c) Distribution of preliminary determination. One copy of the preliminary determination shall be furnished and sent without charge by first-class mail to each person on the mailing list. Additional copies of the preliminary determination shall be made available for public inspection at convenient locations throughout the river basin as designated by the commission. Copies shall also be made available for other persons at a reasonable price based upon the cost of production.(d) Public inspection of record. The record of the hearings shall be open to public inspection as required by the Public Information Act, and Texas Water Code, §11.310.(e) Notice of preliminary determination. The commission shall publish notice of the preliminary determination.(1) Promptly after the preliminary determination is adopted, notice shall be published once a week for two consecutive weeks in one or more newspapers having general circulation in the river basin in which the segment that is the subject of the adjudication is located.(2) The commission shall also send the notice by first-class mail to each claimant of water rights within the river basin in which the stream or segment is located, to the extent that the claimants can be reasonably ascertained from the records of the commission, and to other persons on the mailing list.(3) Each notice shall state the following:(A) the place where the preliminary determination and record of the hearings will be open for public inspection;(B) the locations throughout the river basin where copies of the preliminary determination will be available for public inspection;(C) the method of ordering copies of the preliminary determination and the charge for copies; and(D) the date by which contests of the preliminary determination must be filed.</content><note type="source"><p>Source Note: The provisions of this §86.15 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scB/s86.16"><num value="86.16">§86.16</num><heading>Contests to Preliminary Determination</heading><content>(a) Filing deadline. The commission shall set a date for filing contests to the preliminary determination, which shall be not less than 90 days from the date of the notice of the preliminary determination.(b) Filing of contest. Any water right claimant affected by the preliminary determination, including any claimant to water rights within the river basin, but outside the segment under adjudication, who disputes the preliminary determination may, within the time for filing contests prescribed by the commission in the notice, including any extensions of time, file a written contest with the commission.(c) Copy of contest to claimant. If the contest is directed against the preliminary determination of the water rights of other claimants, a copy shall be sent by the contestant to each of these claimants or his representative by certified mail, and proof of service shall be filed with the commission.(d) Extension of time for filing contests. The commission may accept contests filed after the deadline but before the issuance of the notice of hearings on the contests.(e) Contents of contests. Each contest shall do the following:(1) state the name of the claimant, nature of the claim, and the page number in the preliminary determination to which the contest is directed;(2) describe the specific parts of the preliminary determination to which objection is made, pointing out the specific findings of fact, conclusions of law, or other matters objected to, or specifying the findings of fact, conclusions of law, or other matters alleged to have been erroneously omitted from the preliminary determination; and(3) describe the facts relied upon to support the grounds of the contest and be verified by an affidavit of the contestant or his representative.(f) Amendments to contests. Amendments to contests may be authorized at any time, provided that the commission finds that the amendment will not result in undue surprise to any party and will not significantly change the grounds of the contest as described in the commission's notice of the contest hearings.(g) Notice of hearing on contests. After the time for filing contests has expired, the commission shall prepare a notice setting forth the parts of the preliminary determination to which each contest is directed and the date, time, and place of the hearing on each contest. The notice shall be sent by certified mail to each contestant and by first-class mail to each claimant of water rights within the river basin within which the segment is located and to all other persons on the mailing list. The notice shall set a specific date, time, and place for each contestant to appear.</content><note type="source"><p>Source Note: The provisions of this §86.16 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scB/s86.17"><num value="86.17">§86.17</num><heading>Procedure at Contest Hearing</heading><content>(a) Jurisdiction. The commission shall consider evidence concerning jurisdiction.(b) Individual cases and order of presentation. Unless otherwise directed by the commission, the hearing will proceed as follows:(1) the contestant and all other parties may make opening statements;(2) the project manager or project engineer will orient the commission and the parties to the claim involved in the contest;(3) the contestant will present evidence in support of the contest;(4) evidence may be presented by the executive director;(5) any other party may present evidence relevant to the particular contestant's case.(c) Legal argument. Oral arguments may be permitted by the commission upon request, but the commission will prescribe reasonable limits.</content><note type="source"><p>Source Note: The provisions of this §86.17 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scB/s86.18"><num value="86.18">§86.18</num><heading>Final Determination and Appeal</heading><content>(a) Proposed final determination. When a majority of the commission has not heard the contest or read the record, the judge who presided at the contest hearing or one who has read the record shall prepare a proposal for final determination and shall send it by first-class mail to all persons on the commission's mailing list. The proposed final determination shall contain a statement of the reasons therefore and a statement of each finding of fact and conclusion of law stated separately necessary to support the proposed final determination. Any party adversely affected may file exceptions and present briefs to the commission concerning the proposal for final determination within the time limit stated in the notice of the proposal for final determination. The parties may waive compliance with this rule by written stipulation filed with the commission.(b) Final determination. The adjudication hearings shall be closed at the conclusion of the last contest hearing. The commission will make a final determination of the claims to water rights in the adjudication within 60 days after the closing of the adjudication hearings, provided that where the case was not heard by the commission, the judge may set a reasonable time for the issuance of a final determination and shall announce such extension at the closing of the adjudication hearings. The commission shall send a copy of the final determination, and any modification thereof, by first-class mail to each person of record on the mailing list as required by Texas Water Code, §11.315.(c) Notice of final determination. The commission shall send a notice of the final determination by first-class mail to each claimant of water rights within the river basin in which the segment is located, to the extent that the claimants can be reasonably ascertained from the records of the commission, and to each other person on the commission's mailing list.(1) Each notice shall state the following:(A) the place that the final determination and record of hearings will be open for public inspection;(B) the method of ordering copies of the final determination and the cost of copies; and(C) the date by which applications for rehearing must be filed, which shall be 30 days from the date of issuance of the final determination.(2) The commission shall provide in the final determination and notice thereof the effective date of the determination in order to provide a sufficient period of time within which the determination and notice can be printed and mailed.(d) Application for rehearing of final determination. An application for rehearing is the same as a motion for rehearing under the APA, and is a prerequisite to filing an exception to the final determination under Texas Water Code, §§11.318, et seq.(1) If an application for rehearing is granted, the commission shall issue notice setting forth the substance of the application and setting the time and place of the hearing. Notice shall be sent in the same manner provided for in contest hearings.(2) If the final determination is modified after a rehearing, the commission shall send a copy of the modified final determination by first-class mail to each person on the mailing list. However, if the modifications are such that they are likely to substantially affect the rights of other water right holders within the basin but outside the watershed or segment being adjudicated, then a summary of the modifications shall also be sent to all other water rights holders in the basin.</content><note type="source"><p>Source Note: The provisions of this §86.18 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c86/scD"><num value="D">SUBCHAPTER D</num><heading>APPEALS OF CITY ACTIONS RELATING TO WATER POLLUTION CONTROL AND ABATEMENT OUTSIDE THE CORPORATE LIMITS OF A CITY</heading><section identifier="/us/state/tx/tac/t30/p1/c86/scD/s86.51"><num value="86.51">§86.51</num><heading>General</heading><content>This subchapter applies to appeals to the commission from actions of a city relating to water pollution control and abatement outside the corporate limits of such city, initiated under Texas Water Code, §26.177(c).</content><note type="source"><p>Source Note: The provisions of this §86.51 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scD/s86.52"><num value="86.52">§86.52</num><heading>Petition by an Affected Person</heading><content>Any person affected by a city's ruling, order, decision, ordinance, program, resolution, or any other act, relating to water pollution control and abatement outside the corporate limits of such city and adopted under Texas Water Code, §26.177, or any other statutory authorization, may appeal the city's action by filing a petition for review with the commission.</content><note type="source"><p>Source Note: The provisions of this §86.52 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scD/s86.53"><num value="86.53">§86.53</num><heading>Issues on Appeal</heading><content>The issues on appeal are whether the action or program of the city is invalid, arbitrary, unreasonable, inefficient, or ineffective in its attempt to control water quality.</content><note type="source"><p>Source Note: The provisions of this §86.53 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scD/s86.54"><num value="86.54">§86.54</num><heading>Prerequisites to Appeal</heading><content>The following are prerequisites to appeal under Texas Water Code, §26.177(c).(1) Filing of a petition. Any appeal to the commission under this subchapter requires the filing of a petition for review with the executive director within 60 days of the enactment of the ruling, order, decision, ordinance, program, resolution, or act of the city. The petition must be accompanied by a certificate of service.(2) Service of pleadings. A copy of the petition for review and all other pleadings shall be mailed by first-class mail or delivered to the city whose action is being appealed.(3) Filing fee. Each petition shall be accompanied by a filing fee of $100.(4) Hearing. A time and place for hearing on the matter(s) in dispute shall be set and the commission shall issue notice of the time and place of hearing. The party seeking commission action is responsible for the cost of required notice.</content><note type="source"><p>Source Note: The provisions of this §86.54 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scD/s86.55"><num value="86.55">§86.55</num><heading>Contents of Petition for Review</heading><content>The petition shall contain:(1) the name of the party seeking commission action, with the original copy of the pleading signed by the petitioner or the petitioner's authorized representative;(2) the business phone number and address of the city whose action is being appealed and the city's authorized representative, if any;(3) a clear and concise statement that the petition for review is an appeal of a specific action of the municipality in question, as well as a concise description and date of the action;(4) a copy of the applicable ruling, order, decision, ordinance, program, resolution, or other act of the city, if any;(5) a list of the known persons and areas which might be affected if the petition is granted;(6) a concise statement of the facts relied upon by the pleader;(7) a prayer stating the type of relief, action, or order desired by the pleader; and(8) any other matter required by statute.</content><note type="source"><p>Source Note: The provisions of this §86.55 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scD/s86.56"><num value="86.56">§86.56</num><heading>Answer</heading><content>Not later than the 20th day after the date on which the city receives a copy of the petition for review, the city may submit to the executive director an answer in defense of the action from which the appeal is taken.</content><note type="source"><p>Source Note: The provisions of this §86.56 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scD/s86.57"><num value="86.57">§86.57</num><heading>Review by Commission</heading><content>The commission shall hear the appeal and may, in its final order, affirm, overturn, or modify the action of the city from which the appeal was taken. The commission, on its own motion, or at the request of any party to an appeal, may refer the appeal to SOAH for hearing prior to commission decision. If the commission issues an order without prior referral to SOAH, the record on any appeal from the commission's order under §86.59 of this title (relating to Appeal of Commission Order) shall include the pleadings of all parties, including attachments, and the argument and testimony before the commission, except where specifically indicated in the commission's order.</content><note type="source"><p>Source Note: The provisions of this §86.57 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scD/s86.58"><num value="86.58">§86.58</num><heading>Consolidation</heading><content>The commission may consolidate any or all of the appeals, if any, which relate to the action in question of the city.</content><note type="source"><p>Source Note: The provisions of this §86.58 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c86/scD/s86.59"><num value="86.59">§86.59</num><heading>Appeal of Commission Order</heading><content>If an appeal is taken from a commission order, the commission order shall remain in effect for all purposes until final disposition is made by a court of competent jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §86.59 adopted to be effective June 6, 1996, 21 TexReg 4780.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c90"><num value="90">CHAPTER 90</num><heading>INNOVATIVE PROGRAMS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c90/scA"><num value="A">SUBCHAPTER A</num><heading>INCENTIVE PROGRAMS</heading><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.1"><num value="90.1">§90.1</num><heading>Purpose</heading><content>The purpose of this chapter is to establish rules provided for in Texas Water Code (TWC), §5.755, relating to incentives for enhanced environmental performance under a Strategically Directed Regulatory Structure; TWC, §5.758, relating to commission issuance of Regulatory Flexibility Orders for an exemption for an applicant who proposes an alternative method or alternative standard to control or abate pollution; and TWC, §5.127, relating to Environmental Management Systems.</content><note type="source"><p>Source Note: The provisions of this §90.1 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.2"><num value="90.2">§90.2</num><heading>Applicability</heading><content>(a) The provisions of this subchapter are applicable to all persons subject to the requirements of Texas Water Code (TWC), Chapters 26, 27, and 32; and Texas Health and Safety Code (THSC), Chapters 361, 375, 382, and 401. The applicable regulatory activities include, but are not limited to:(1) discharges to surface water and groundwater regulated under TWC, Chapter 26;(2) petroleum storage tanks regulated under TWC, Chapter 26;(3) disposal of waste by underground injection regulated under TWC, Chapter 27;(4) systems for subsurface area drip disposal regulated under TWC, Chapter 32;(5) management and disposal of industrial solid waste, hazardous waste, or municipal solid waste (including composting, sewage sludge, and water treatment sludge) regulated under THSC, Chapter 361;(6) removal of convenience switches and the convenience switch recovery program under THSC, Chapter 375;(7) emission sources of air contaminants regulated under THSC, Chapter 382; and(8) management and disposal of radioactive substances regulated under THSC, Chapter 401.(b) This subchapter does not apply to occupational licensing programs or other programs specifically exempted by statute.(c) Regulatory Flexibility Orders shall not authorize exemptions to statutes or regulations for storing, handling, processing, or disposing of low-level radioactive materials.</content><note type="source"><p>Source Note: The provisions of this §90.2 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.3"><num value="90.3">§90.3</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.(1) Applicable legal requirement--A state or federal environmental law, regulation, permit, order, consent decree, or other requirement.(2) Certified--For purposes of this chapter, a documented third party decision that the environmental management system meets the minimum standards of a recognized environmental management system standard.(3) Enhanced environmental performance--An activity by a person, including any measurable voluntary action undertaken by a person to improve environmental quality, which:(A) reduces or eliminates discharges or emissions of pollutants to an extent that is greater than required by applicable legal requirements;(B) provides an overall reduction of discharges or emissions of pollutants from a site to an extent that is greater than required by applicable legal requirements;(C) reduces a negative impact on air, water, land, natural resources, or human health to an extent that is greater than required by applicable legal requirements; or(D) is otherwise determined by the executive director to improve environmental quality to an extent greater than required by applicable legal requirements.(4) Environmental aspect--Element of a person's activities, products, or services that can interact with the environment.(5) Environmental impact--Any change to the environment, whether adverse or beneficial, wholly or partially resulting from a person's activities, products, or services regarding a specific site.(6) Environmental management system--A documented management system to address applicable environmental regulatory requirements that includes organizational structure, planning activities, responsibilities, practices, procedures, processes, and resources for developing, implementing, achieving, reviewing, and maintaining an environmental policy directed toward continuous improvement.(7) Independent assessor--A person or team of people, at least one of whom has appropriate professional credentials and experience to review an environmental management system. The assessor(s) must not have contributed to the development of the system being assessed.(8) Innovative program--(A) a program developed by the commission under Texas Water Code (TWC), Chapter 5, Subchapter Q, Performance Based Regulation; TWC, Chapter 26 or 27; or Texas Health and Safety Code (THSC), Chapters 361, 382, or 401; that provides incentives to a person in return for benefits to the environment that exceed benefits that would result from compliance with applicable legal requirements;(B) the flexible permit program administered by the agency under THSC, Chapter 382, and defined in Chapter 116, Subchapter G of this title (relating to Flexible Permits);(C) the regulatory flexibility program described in §90.20 of this title (relating to Regulatory Flexibility);(D) the Environmental Management Systems program described in §90.30 of this title (relating to Minimum Standards for Environmental Management Systems);(E) a program established under THSC, §382.401, and defined in Chapter 101, Subchapter C of this title (relating to Voluntary Supplemental Leak Detection Program), to encourage the use of alternative technology for detecting leaks or emissions of air contaminants; or(F) other voluntary programs administered by the agency's Small Business and Environmental Assistance Division or that division's successor designated as innovative by the executive director.(9) Maximum environmental benefit--The overall long-term goal of the agency for environmental improvement which is accomplished by enhanced environmental performance over time from individual reductions in discharges or emissions of pollutants by persons who reduce the negative impacts on water, air, land, natural resources, or human health to an extent that is greater than required by applicable legal requirements.(10) Permit--A license, certificate, registration, approval, permit by rule, standard permit, or other form of authorization issued by the agency under the Texas Water Code or Texas Health and Safety Code.(11) Public participation--Activities by a person under this subchapter intended to enhance public input that are not otherwise required by law or by commission rules.(12) Region--A region of the agency's Field Operations Division or that division's successor.(13) Site--Except with regard to portable units, all regulated units, facilities, equipment, structures, or sources at one street address or location that are owned or operated by the same person. Site includes any property identified in the permit or used in connection with the regulated activity at the same street address or location. A site for a portable regulated unit or facility is any location where the unit or facility is or has operated.(14) Strategically directed regulatory structure--A program that is designed to use innovative programs to provide maximum environmental benefit and to reward compliance performance.(15) Voluntary measure--A program with specific performance measures undertaken by a person to improve environmental quality that is not required by rule or law.</content><note type="source"><p>Source Note: The provisions of this §90.3 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.10"><num value="90.10">§90.10</num><heading>Strategically Directed Regulatory Structure</heading><content>The Strategically Directed Regulatory Structure establishes a framework for innovative programs to provide for enhanced environmental performance and to reward compliance performance.</content><note type="source"><p>Source Note: The provisions of this §90.10 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.11"><num value="90.11">§90.11</num><heading>Eligibility</heading><content>(a) Except as provided in subsection (b) or (c) of this section, a person whose application to participate in an innovative program or whose application for an incentive meets the minimum standards of §90.13 of this title (relating to Application for Incentives) shall be eligible to receive regulatory incentives under this chapter.(b) A person who has incurred a judgment in a suit brought by the Texas or United States attorney general against the site for which the person is requesting regulatory incentives, is ineligible to participate in an innovative program or to receive regulatory incentives at that site for a period of five years after the date the judgment was final.(c) A person who has been convicted of an environmental crime regarding the site for which the person is requesting to participate in an innovative program or requesting regulatory incentives is ineligible to receive regulatory incentives through participation in an innovative program under this chapter for a period of three years after the date of the conviction.(d) A person shall be accepted into a strategically directed regulatory structure by meeting the criteria and standards for the following:(1) regulatory flexibility under §90.20 of this title (relating to Regulatory Flexibility);(2) incentives for using an environmental management system under §90.30 of this title (relating to Minimum Standards for Environmental Management Systems);(3) programs authorized as innovative by the executive director;(4) flexible permits under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification); or(5) other programs set forth under this subchapter.(e) Incentives provided under one innovative program do not guarantee the providing of incentives offered under another innovative program, except where those incentives are equivalent.</content><note type="source"><p>Source Note: The provisions of this §90.11 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.12"><num value="90.12">§90.12</num><heading>Incentives</heading><content>(a) In providing incentives for enhanced environmental performance, the executive director shall offer incentives based on:(1) a person's and/or site's compliance history; and(2) a person's voluntary measures, including participation in innovative programs, to improve environmental quality. The executive director may give favorable consideration to voluntary measures that are related to the specific media for which a person is requesting incentives or participation in an innovative program.(b) In providing incentives, the executive director may also consider any other factor that the executive director finds relevant that leads to enhanced environmental performance.(c) The incentives the executive director may offer for participation in innovative programs include, but are not limited to:(1) one point of contact for coordinating innovative programs;(2) technical assistance provided by the agency;(3) accelerated access to agency information;(4) modification of state regulatory requirements that do not increase existing emission or discharge limits or decrease public involvement;(5) flexibility in regulatory processes;(6) public recognition; and(7) inclusion of the use of an Environmental Management System in a site's compliance history and compliance summaries.(d) An innovative program offered as part of the strategically directed regulatory structure must be consistent with other law and any requirement necessary to maintain federal program authorization, including the provisions of any agreements between the agency and the federal government.</content><note type="source"><p>Source Note: The provisions of this §90.12 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.13"><num value="90.13">§90.13</num><heading>Application for Incentives</heading><content>(a) A person who applies to the executive director for a regulatory flexibility project or to use an environmental management system under this chapter, or for a flexible permit under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) or another program designated as innovative under Texas Water Code (TWC), §5.752(2), does not need to submit another application under this section's requirements, unless the person requests an additional incentive not available to the person in the program in which the person is already participating or applying to participate. Compliance with this requirement does not relieve the person from complying with all other applicable legal requirements.(b) If a person seeks incentives under this section that are not available under specific innovative programs designated in this chapter, Chapter 116 of this title, or other programs designated as innovative under TWC, §5.752(2), the person must submit an application to the executive director to receive incentives available under this section. Within 30 days after receipt of an application under this section, the executive director shall mail written notification informing the person that the application is administratively complete or that it is deficient.(1) If the application is deficient, the notification shall specify the deficiencies, and allow the person 30 days from the date of the notice to provide the requested information. If the person does not submit an adequate response within the allotted time, the application will be returned without further action by the executive director.(2) Additional technical information may be requested within 60 days after issuance of an administrative completeness letter. If the person does not provide the requested technical information within 30 days after the date of the request, the application will be returned without further action by the executive director.(3) If an application is returned under paragraph (1) or (2) of this subsection, the person may file a new application at any time.(4) The person may request in writing that the executive director allow additional time for a person to submit information regarding the person's application to use an innovative program or to request an incentive.(c) In making a determination of eligibility, the executive director shall review the application submitted under this section, as well as the person's and site's compliance history.(d) An application for participation in the strategically directed regulatory structure must, at a minimum, include:(1) a narrative summary of the proposal or project, including the specific statutes or commission rules under which participation is being sought;(2) a specific reference to the appropriate permit provision or citation to a regulation if the person's request is to modify an existing state or federal regulatory requirement;(3) a detailed explanation, including a demonstration as appropriate, that the proposal or project is:(A) more protective of the environment and the public health than the method or standard prescribed by the statute or commission rules that would otherwise apply; and(B) not inconsistent with federal law, including any requirement for a federally approved or authorized program;(4) a description of any public participation component associated with the proposal or project;(5) where appropriate, a project schedule which includes a proposal for monitoring, recordkeeping, and/or reporting of environmental performance and compliance;(6) any documented results from the project or estimates of future project outcomes demonstrating that the project produces a measurable environmental improvement that enhances environmental performance;(7) an explanation of how the project will be consistent with the needed outcome/regional plan if the applicant chooses a project that will address a regional environmental issue identified in the agency's strategic plan, as amended; and(8) any necessary additional information as determined by the executive director.(e) The application must be signed and must certify that all information is true, accurate, and complete to the best of the signatory's knowledge.(f) An original and two copies of the signed application shall be submitted to the executive director for review, and one additional copy shall be submitted to the appropriate regional office for the region in which the site is located.(g) A person whose application is approved by the executive director must maintain records and other supporting information to show that voluntary environmental measures associated with incentives approved by the executive director are being carried out and are resulting in enhanced environmental performance. All records and data shall be retained at the site and/or shall be readily available for review by an agency representative or any local air pollution control program with jurisdiction for a period of three years after the date of any record or sample, measurement, report, application, or certification. Upon the written direction of the executive director specifying the reason for the extension, this period shall be extended.</content><note type="source"><p>Source Note: The provisions of this §90.13 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.14"><num value="90.14">§90.14</num><heading>Review by Executive Director Required</heading><content>(a) Any person who is receiving incentives under this subchapter shall submit a progress report to the executive director every two years from the date of initial written approval from the executive director for the incentives, documenting the enhanced environmental performance of the project, including:(1) a demonstration that the results are more protective of the environment than the method or standard prescribed by the statute or commission rule that would otherwise apply;(2) specific measurable results of the project and how these contribute toward environmental improvements;(3) documentation of any public participation component; and(4) how the results achieved compare to the results projected in the application.(b) If the executive director finds that a person's voluntary environmental measures no longer provide for enhanced environmental performance, the executive director shall begin termination proceedings under §90.15 of this title (relating to Termination of Regulatory Incentives Under the Strategically Directed Regulatory Structure).(c) If a person suspends or terminates voluntary environmental measures associated with incentives provided by the executive director, that person must notify the executive director within ten calendar days after the occurrence.</content><note type="source"><p>Source Note: The provisions of this §90.14 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.15"><num value="90.15">§90.15</num><heading>Termination of Regulatory Incentives Under the Strategically Directed Regulatory Structure</heading><content>(a) Termination by the recipient.(1) A person who receives regulatory incentives for a site under this subchapter may terminate the regulatory incentives at any time by sending a notice of termination to the executive director by certified mail.(2) If the incentives received by the person or site included exemptions from state or federal requirements, the person or site must be in full compliance with all requirements for which exemptions were provided within 30 days after notice of termination is mailed to the executive director. If a new permit, permit amendment, or other authorization is necessary in order for the person to achieve compliance, an administratively complete application for such authorization shall be submitted to the executive director within 30 days after notice of termination is mailed to the executive director.(b) Termination by the executive director.(1) Noncompliance with the terms and conditions of regulatory incentives offered under the Strategically Directed Regulatory Structure, a Regulatory Flexibility Order, an environmental management system, or this chapter, may result in termination of the regulatory incentives.(2) The executive director may also terminate incentives under this chapter if the executive director finds that the person or site receiving incentives is not complying with other applicable legal requirements.(3) If the executive director determines that a person who is provided regulatory incentives under this subchapter no longer meets the requirements of this subchapter, the executive director shall notify the person in writing within 90 days after the deficiencies are documented.(4) If the noted deficiencies are not corrected and supporting documentation submitted within 90 days after receipt of the notification, regulatory incentives shall be terminated.(5) If the incentives received by the person or site included exemptions from state or federal requirements, the person or site must be in full compliance with all requirements for which exemptions were provided within 30 days after termination by the executive director. If a new permit, permit amendment, or other authorization is necessary in order for the person to achieve compliance, an administratively complete application for such permit or authorization shall be submitted within 30 days after termination by the executive director. Upon written request, the executive director may allow an additional amount of time not to exceed 90 days from the date the incentive is terminated for a person to achieve compliance with applicable legal requirements or apply for proper authorization.</content><note type="source"><p>Source Note: The provisions of this §90.15 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.16"><num value="90.16">§90.16</num><heading>Public Notice, Comment, and Hearing</heading><content>(a) Applicants for participation in innovative programs shall follow the requirements under subsections (b) and (c) of this section, unless the applicant is only requesting additional incentives under this chapter.(b) If an applicant for incentives under this chapter requests an exemption from a statute or commission rule, the applicant shall comply with all public notice, comment, and hearing requirements associated with the statute or commission rule for which the applicant is seeking an exemption, except as provided in subsection (c) of this section.(c) If the specific innovative program or statute or commission rule for which an applicant is seeking an exemption does not require public notice or an opportunity for comment, the following requirements shall apply.(1) The applicant shall publish notice of the application at least once in a newspaper of general circulation in the county where the facility or site requesting incentives is located or proposed to be located. The notice shall be published within 30 days after the application is determined to be administratively complete. Notice under this section shall not be published in a font size smaller than that normally used in the newspaper's classified advertising section.(2) The executive director shall accept public comment for 30 days after the last publication of the notice of application.(d) Notice under this section shall include, at a minimum:(1) a brief description of the proposal and of the business conducted at the facility or activity described in the application;(2) a brief description of the incentive(s) or regulatory flexibility requested;(3) the name and address of the applicant and, if different, the location of the facility for which incentives or regulatory flexibility under this chapter are sought;(4) the name and address of the agency;(5) the name, address, and telephone number of an agency contact person from whom interested persons may obtain further information;(6) a brief description of the public comment procedures and the time and place of any public meeting or public hearing; and(7) the date by which comments or requests for hearing must be received by the executive director.</content><note type="source"><p>Source Note: The provisions of this §90.16 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.20"><num value="90.20">§90.20</num><heading>Regulatory Flexibility</heading><content>(a) The commission by issuance of a Regulatory Flexibility Order may exempt an applicant from a requirement of a statute or commission rule regarding the control or abatement of pollution if the applicant proposes to control or abate pollution by an alternative method or by applying an alternative standard.(b) A violation of an order issued under this section is punishable as if it were a violation of the statute or rule from which the order provides an exemption.</content><note type="source"><p>Source Note: The provisions of this §90.20 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.21"><num value="90.21">§90.21</num><heading>Application for a Regulatory Flexibility Order</heading><content>(a) An application for a Regulatory Flexibility Order (RFO) must be submitted to the executive director.(b) The application must include:(1) a narrative summary of the proposal, including the specific statutes or commission rules for which an exemption is being sought;(2) a detailed explanation, including a demonstration as appropriate, that the proposed alternative is:(A) as protective of the environment and the public health as the method or standard prescribed by the statute or commission rule that would otherwise apply; and(B) not inconsistent with federal law, including any requirement for a federally approved or authorized program;(3) evidence that the alternative the applicant proposes is as protective of the environment and the public health as the method or standard prescribed by the statute or commission rule that would otherwise apply;(4) an implementation schedule which includes a proposal for monitoring, recordkeeping, and/or reporting, where appropriate, of environmental performance and compliance under the RFO;(5) an identification, if applicable, of any proposed transfers of pollutants between media;(6) a description of efforts made or proposed to involve the local community and to achieve local community support;(7) an application fee of $250. The executive director may determine that the application for an RFO constitutes a significant and complex application for which the recovery of all reasonable costs for review and approval by the commission is appropriate. Upon notice to the applicant of such finding, the applicant shall execute a cost recovery agreement in a form approved by the executive director. Recoverable costs include costs incurred by the commission for administrative review, technical review, and hearings associated with the application; and(8) any other information requested from the applicant by the executive director during the application review period.(c) The application must be signed by the applicant or its duly authorized agent and must certify that all information is accurate and complete.(d) The applicant shall submit an original and two copies of the signed application to the executive director for review, and shall send one additional copy to the commission's regional office for the region in which the facility is located.(e) The applicant shall comply with public notice, comment, and hearing requirements in §90.16 of this title (relating to Public Notice, Comment, and Hearing).</content><note type="source"><p>Source Note: The provisions of this §90.21 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.22"><num value="90.22">§90.22</num><heading>Commission Action on an Application</heading><content>(a) Commission action on an application under this chapter shall comply with the provisions set forth in Chapter 50, Subchapter F of this title (relating to Action by the Commission), as applicable.(b) The commission may consider in its decision, among other factors, the applicant's compliance history and efforts made to involve the local community and achieve local community support.(c) The commission's order must provide a description of the alternative method or standard and condition the exemption on compliance with the method or standard as the order prescribes.</content><note type="source"><p>Source Note: The provisions of this §90.22 adopted to be effective July 19, 2012, 37 TexReg 5310 ; amended to be effective May 14, 2020, 45 TexReg 3090.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.23"><num value="90.23">§90.23</num><heading>Amendment/Renewal</heading><content>(a) An application for amendment or renewal of an Regulatory Flexibility Order (RFO) may be filed in the same manner as an original application under this subchapter.(b) If renewal procedures have been initiated at least 180 days prior to the RFO expiration date, the existing RFO will remain in effect, and will not expire until commission action on the timely application for renewal is final.</content><note type="source"><p>Source Note: The provisions of this §90.23 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.24"><num value="90.24">§90.24</num><heading>Termination</heading><content>(a) By the recipient.(1) A recipient of an Regulatory Flexibility Order (RFO) may terminate the RFO at any time by sending a notice of termination to the executive director by certified mail.(2) The recipient must be in compliance with all applicable statutes or commission rules at the time of termination.(b) By the executive director.(1) Noncompliance with the terms and conditions of an RFO, or any provision of this chapter, may result in the executive director's termination of an RFO after the executive director provides written notice of the noncompliance to the recipient and the recipient is given an opportunity of not less than 30 days from the date the notice was mailed to show cause why the RFO should not be terminated. Procedures for requesting a show cause hearing before the commission shall be included in the executive director's written notice.(2) In the event an RFO is terminated, the executive director may specify an appropriate and reasonable transition period to allow the recipient to come into full compliance with all applicable commission requirements, including time to apply for any necessary agency permits or other authorizations.</content><note type="source"><p>Source Note: The provisions of this §90.24 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.30"><num value="90.30">§90.30</num><heading>Minimum Standards for Environmental Management Systems</heading><content>A person may be eligible to receive regulatory incentives under this chapter if the site's environmental management system (EMS):(1) includes a written environmental policy directed toward continuous improvement;(2) identifies the environmental aspects at the site;(3) prioritizes these environmental aspects by the significance of the impacts at the site;(4) sets the priorities, goals, and targets for continuous improvement in environmental performance and for ensuring compliance with applicable environmental laws, regulations, and permit conditions;(5) assigns clear responsibility for implementation, training, monitoring, and taking corrective action and for ensuring compliance with applicable environmental laws, regulations, and permit conditions;(6) requires written documentation of the implementation procedures and the results;(7) requires evaluation and refinement of the EMS to demonstrate improved attainment of the priorities, goals, and targets of the system; and(8) has been certified to a recognized environmental management system standard by an independent third party.</content><note type="source"><p>Source Note: The provisions of this §90.30 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c90/scA/s90.31"><num value="90.31">§90.31</num><heading>Review of Incentive Applications for Environmental Management Systems</heading><content>(a) A person must submit written documentation of the Environmental Management System (EMS) for a specific site as part of a written request for approval of the site's EMS to the executive director to be eligible to receive regulatory incentives under this chapter. The documentation must include:(1) the environmental policy statement as required in §90.30(1) of this title (relating to Minimum Standards for Environmental Management Systems);(2) scope of the EMS, including programmatic, geographic area, sites, facilities, or units included in the EMS;(3) the prioritized environmental aspects for the site as required in §90.30(2) and (3) of this title;(4) environmental improvement goals and targets for continuous improvement in environmental performance as required in §90.30(4) of this title;(5) list of any independent certifications that have been completed on the EMS;(6) main point of contact on the EMS;(7) any other information requested by the executive director during the review period; and(8) signature of the requestor or the duly authorized agent, that certifies that all information is accurate, and complete.(b) Requests for incentives under this section do not require public notice, comment, and hearing under §90.16 of this title (relating to Public Notice, Comment, and Hearing).(c) The executive director will notify the person who submitted the request for review of whether the EMS qualifies for regulatory incentives under this chapter. If the EMS does not qualify for regulatory incentives under this chapter, the executive director will send the person who requested a review of the EMS a notice detailing where the EMS does not meet the standards in §90.30 of this title.(d) If a person receives regulatory incentives under this section for a specific site, the executive director will require an additional independent reassessment of the EMS at least every three years from the date of the initial assessment. Results of this reassessment must be provided to the executive director.(e) The executive director will maintain a list of incentives available to a person whose EMS is eligible to receive regulatory incentives under this chapter.(f) Regulatory incentives provided under this section may not be claimed or utilized without approval from the executive director.</content><note type="source"><p>Source Note: The provisions of this §90.31 adopted to be effective July 19, 2012, 37 TexReg 5310.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c91"><num value="91">CHAPTER 91</num><heading>ALTERNATIVE PUBLIC NOTICE AND PUBLIC PARTICIPATION REQUIREMENTS FOR SPECIFIC DESIGNATED FACILITIES</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c91/scA"><num value="A">SUBCHAPTER A</num><heading>PURPOSE AND APPLICABILITY</heading><section identifier="/us/state/tx/tac/t30/p1/c91/scA/s91.10"><num value="91.10">§91.10</num><heading>Purpose</heading><content>The purpose of this subchapter is to establish streamlined processes under Texas Water Code, §5.558, for the commission to issue permits, registrations, licenses, or other types of authorization under the commission's jurisdiction required to construct, operate, or authorize a component of the FutureGen project as defined in §91.30 of this title (relating to Definitions).</content><note type="source"><p>Source Note: The provisions of this §91.10 adopted to be effective March 29, 2006, 31 TexReg 2485.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c91/scA/s91.20"><num value="91.20">§91.20</num><heading>Applicability</heading><content>(a) This subchapter applies to procedural requirements for authorizations required to construct, operate, or authorize a component of the FutureGen project as defined in §91.30 of this title (relating to Definitions), including applications for permits, registrations, licenses, or other types of authorization under the following:(1) Chapter 295 of this title (relating to Water Rights, Procedural);(2) Chapter 297 of this title (relating to Water Rights, Substantive);(3) Chapter 305 of this title (relating to Consolidated Permits);(4) Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation);(5) Chapter 329 of this title (relating to Drilled or Mine Shafts);(6) Chapter 330 of this title (relating to Municipal Solid Waste);(7) Chapter 331 of this title (relating to Underground Injection Control);(8) Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Solid Waste); and(9) Chapter 336 of this title (relating to Radioactive Substance Rules).(b) Applications for permits, registrations, licenses, or other types of authorization required to construct, operate, or authorize a component of the FutureGen project as defined under §91.30 of this title are subject to the technical requirements under the commission program, rule, or statute that the application is sought.(c) This subchapter does not apply to an application for a permit to construct or modify a new or existing coal-fired electric generating facility that will use pulverized or supercritical pulverized coal.(d) The executive director may apply the requirements of this subchapter to any application not otherwise specified in this subchapter for which the executive director determines constitutes a bona fide component of the FutureGen project.(e) If the executive director determines that an application is not subject to the applicability of this subchapter, the application will be subject to the permitting and public participation process that would otherwise apply to the type of authorization sought.(f) An applicant may appeal a determination by the executive director under subsection (e) of this section, by filing a motion under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).(g) Applications for authorization submitted under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) shall be subject to the public notice and participation procedures stated in Chapter 116, Subchapter L of this title (relating to Permits for Specific Designated Facilities), and any applicable rules in Chapters 39 and 55 of this title (relating to Public Notice and Requests for Reconsideration and Contested Case Hearings; Public Comment).(h) This chapter does not apply to any applications or other requests for authorization submitted after January 1, 2018.</content><note type="source"><p>Source Note: The provisions of this §91.20 adopted to be effective March 29, 2006, 31 TexReg 2485.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c91/scA/s91.30"><num value="91.30">§91.30</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.(1) Clean coal project--The installation of one or more components of the coal-based integrated sequestration and hydrogen research project to be built in partnership with the United States Department of Energy, commonly referred to as the FutureGen project. The term includes the construction or modification of a facility for electric generation, industrial production, or the production of steam as a by-product of coal gasification to the extent that the facility installs one or more components of the FutureGen project.(2) Coal--All forms of coal, including lignite.(3) Component of the FutureGen project A process, technology, or piece of equipment that:(A) is designed to employ coal gasification technology to generate electricity, hydrogen, or steam in a manner that meets the FutureGen project profile;(B) is designed to employ fuel cells to generate electricity in a manner that meets the FutureGen project profile;(C) is designed to employ a hydrogen-fueled turbine to generate electricity where the hydrogen is derived from coal in a manner that meets the FutureGen project profile;(D) is designed to demonstrate the efficacy at an electric generation or industrial production facility of a carbon dioxide capture technology in a manner that meets the FutureGen project profile;(E) is designed to sequester a portion of the carbon dioxide captured from an electric generation or industrial production facility in a manner that meets the FutureGen project profile in conjunction with appropriate remediation plans and appropriate techniques for reservoir characterization, injection control, and monitoring;(F) is designed to sequester carbon dioxide as part of enhanced oil recovery in a manner that meets the FutureGen project profile in conjunction with appropriate techniques for reservoir characterization, injection control, and monitoring;(G) qualifies for federal funds designated for the FutureGen project;(H) is required to perform the sampling, analysis, or research necessary to submit a proposal to the United States Department of Energy for the FutureGen project; or(I) is required in a final United States Department of Energy request for proposals for the FutureGen project or is described in a final United States Department of Energy request for proposals as a desirable element to be considered in the awarding of the project.(4) FutureGen project--A common reference to the coal-based integrated sequestration and hydrogen project to be built in partnership with the United States Department of Energy.(5) FutureGen project profile--A standard or standards relevant to a component of the FutureGen project, as provided in a final or amended United States Department of Energy request for proposals or contract.</content><note type="source"><p>Source Note: The provisions of this §91.30 adopted to be effective March 29, 2006, 31 TexReg 2485.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c91/scB"><num value="B">SUBCHAPTER B</num><heading>PUBLIC NOTICE AND PUBLIC PARTICIPATION</heading><section identifier="/us/state/tx/tac/t30/p1/c91/scB/s91.100"><num value="91.100">§91.100</num><heading>Contested Case Hearings</heading><content>With the exception of any other provision in this title, an application for a permit, registration, license, or other type of authorization required to construct, operate, or authorize a component of the FutureGen project as defined in §91.30 of this title (relating to Definitions) is not subject to a contested case hearing.</content><note type="source"><p>Source Note: The provisions of this §91.100 adopted to be effective March 29, 2006, 31 TexReg 2485.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c91/scB/s91.110"><num value="91.110">§91.110</num><heading>Public Notice</heading><content>(a) An application for a permit, registration, license, or other type of authorization required to construct, operate, or authorize a component of the FutureGen project as defined in §91.30 of this title (relating to Definitions) is subject to the applicable notice requirements under Chapter 39 of this title (relating to Public Notice) or other rule under this title for the type of authorization sought, except as provided in this section.(b) The text of the notice must include the following statements: "The application is for authorization of a component of the FutureGen project and is not subject to a contested case hearing. The commission may hold a public meeting, an informal conference, or form an advisory committee to gather the opinions and advice of interested persons on the application when there is a significant degree of public interest."(c) The text of the notice must not include a description of procedures for requesting a contested case hearing or the deadline for requesting a contested case hearing.</content><note type="source"><p>Source Note: The provisions of this §91.110 adopted to be effective March 29, 2006, 31 TexReg 2485.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c91/scB/s91.120"><num value="91.120">§91.120</num><heading>Public Participation</heading><content>(a) The commission may hold public meetings, informal conferences, or advisory committees to gather the opinions and advice of interested persons on an application subject to this chapter when there is a significant degree of public interest.(b) Except as provided in §91.100 of this title (relating to Contested Case Hearings), an application under this chapter is also subject to the public meeting and public comment processing requirements of Chapter 55 of this title (relating to Requests for Reconsideration and Contested Case Hearings; Public Comment) or elsewhere under this title that is applicable to the type of authorization sought.</content><note type="source"><p>Source Note: The provisions of this §91.120 adopted to be effective March 29, 2006, 31 TexReg 2485.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c101"><num value="101">CHAPTER 101</num><heading>GENERAL AIR QUALITY RULES</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c101/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL RULES</heading><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.1"><num value="101.1">§101.1</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms that are defined by the TCAA, the following terms, when used in the air quality rules in this title, have the following meanings, unless the context clearly indicates otherwise.(1) Account--For those sources required to be permitted under Chapter 122 of this title (relating to Federal Operating Permits Program), all sources that are aggregated as a site. For all other sources, any combination of sources under common ownership or control and located on one or more contiguous properties, or properties contiguous except for intervening roads, railroads, rights-of-way, waterways, or similar divisions.(2) Acid gas flare--A flare used exclusively for the incineration of hydrogen sulfide and other acidic gases derived from natural gas sweetening processes.(3) Agency established facility identification number--For the purposes of Subchapter F of this chapter (relating to Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities), a unique alphanumeric code required to be assigned by the owner or operator of a regulated entity that the emission inventory reporting requirements of §101.10 of this title (relating to Emissions Inventory Requirements) are applicable to each facility at that regulated entity.(4) Ambient air--That portion of the atmosphere, external to buildings, to which the general public has access.(5) Background--Background concentration, the level of air contaminants that cannot be reduced by controlling emissions from man-made sources. It is determined by measuring levels in non-urban areas.(6) Boiler--Any combustion equipment fired with solid, liquid, and/or gaseous fuel used to produce steam or to heat water.(7) Capture system--All equipment (including, but not limited to, hoods, ducts, fans, booths, ovens, dryers, etc.) that contains, collects, and transports an air pollutant to a control device.(8) Captured facility--A manufacturing or production facility that generates an industrial solid waste or hazardous waste that is routinely stored, processed, or disposed of on a shared basis in an integrated waste management unit owned, operated by, and located within a contiguous manufacturing complex.(9) Carbon adsorber--An add-on control device that uses activated carbon to adsorb volatile organic compounds from a gas stream.(10) Carbon adsorption system--A carbon adsorber with an inlet and outlet for exhaust gases and a system to regenerate the saturated adsorbent.(11) Coating--A material applied onto or impregnated into a substrate for protective, decorative, or functional purposes. Such materials include, but are not limited to, paints, varnishes, sealants, adhesives, thinners, diluents, inks, maskants, and temporary protective coatings.(12) Cold solvent cleaning--A batch process that uses liquid solvent to remove soils from the surfaces of parts or to dry the parts by spraying, brushing, flushing, and/or immersion while maintaining the solvent below its boiling point. Wipe cleaning (hand cleaning) is not included in this definition.(13) Combustion unit--Any boiler plant, furnace, incinerator, flare, engine, or other device or system used to oxidize solid, liquid, or gaseous fuels, but excluding motors and engines used in propelling land, water, and air vehicles.(14) Combustion turbine--Any gas turbine system that is gas and/or liquid fuel fired with or without power augmentation. This unit is either attached to a foundation or is portable equipment operated at a specific minor or major source for more than 90 days in any 12-month period. Two or more gas turbines powering one shaft will be treated as one unit.(15) Commercial hazardous waste management facility--Any hazardous waste management facility that accepts hazardous waste or polychlorinated biphenyl compounds for a charge, except a captured facility that disposes only waste generated on-site or a facility that accepts waste only from other facilities owned or effectively controlled by the same person.(16) Commercial incinerator--An incinerator used to dispose of waste material from retail and wholesale trade establishments. (17) Commercial medical waste incinerator--A facility that accepts for incineration medical waste generated outside the property boundaries of the facility.(18) Component--A piece of equipment, including, but not limited to, pumps, valves, compressors, and pressure relief valves that has the potential to leak volatile organic compounds.(19) Condensate--Liquids that result from the cooling and/or pressure changes of produced natural gas. Once these liquids are processed at gas plants or refineries or in any other manner, they are no longer considered condensates.(20) Construction-demolition waste--Waste resulting from construction or demolition projects.(21) Control system or control device--Any part, chemical, machine, equipment, contrivance, or combination of same, used to destroy, eliminate, reduce, or control the emission of air contaminants to the atmosphere.(22) Conveyorized degreasing--A solvent cleaning process that uses an automated parts handling system, typically a conveyor, to automatically provide a continuous supply of parts to be cleaned or dried using either cold solvent or vaporized solvent. A conveyorized degreasing process is fully enclosed except for the conveyor inlet and exit portals.(23) Criteria pollutant or standard--Any pollutant for which there is a national ambient air quality standard established under 40 Code of Federal Regulations Part 50.(24) Custody transfer--The transfer of produced crude oil and/or condensate, after processing and/or treating in the producing operations, from storage tanks or automatic transfer facilities to pipelines or any other forms of transportation.(25) De minimis impact--A change in ground level concentration of an air contaminant as a result of the operation of any new major stationary source or of the operation of any existing source that has undergone a major modification that does not exceed the significance levels as specified in 40 Code of Federal Regulations §51.165(b)(2). (26) Domestic wastes--The garbage and rubbish normally resulting from the functions of life within a residence.(27) Emissions banking--A system for recording emissions reduction credits so they may be used or transferred for future use.(28) Emissions event--Any upset event or unscheduled maintenance, startup, or shutdown activity, from a common cause that results in unauthorized emissions of air contaminants from one or more emissions points at a regulated entity.(29) Emissions reduction credit--Any stationary source emissions reduction that has been banked in accordance with Subchapter H, Division 1 of this chapter (relating to Emission Credit Program).(30) Emissions reduction credit certificate--The certificate issued by the executive director that indicates the amount of qualified reduction available for use as offsets and the length of time the reduction is eligible for use.(31) Emissions unit--Any part of a stationary source that emits, or would have the potential to emit, any pollutant subject to regulation under the Federal Clean Air Act.(32) Excess opacity event--When an opacity reading is equal to or exceeds 15 additional percentage points above an applicable opacity limit, averaged over a six-minute period.(33) Exempt solvent--Those carbon compounds or mixtures of carbon compounds used as solvents that have been excluded from the definition of volatile organic compound.(34) External floating roof--A cover or roof in an open top tank that rests upon or is floated upon the liquid being contained and is equipped with a single or double seal to close the space between the roof edge and tank shell. A double seal consists of two complete and separate closure seals, one above the other, containing an enclosed space between them.(35) Federal motor vehicle regulation--Control of Air Pollution from Motor Vehicles and Motor Vehicle Engines, 40 Code of Federal Regulations Part 85.(36) Federally enforceable--All limitations and conditions that are enforceable by the United States Environmental Protection Agency administrator, including those requirements developed under 40 Code of Federal Regulations (CFR) Parts 60 and 61; requirements within any applicable state implementation plan (SIP); and any permit requirements established under 40 CFR §52.21 or under regulations approved under 40 CFR Part 51, Subpart 1, including operating permits issued under the approved program that is incorporated into the SIP and that expressly requires adherence to any permit issued under such program.(37) Flare--An open combustion unit (i.e., lacking an enclosed combustion chamber) whose combustion air is provided by uncontrolled ambient air around the flame, and that is used as a control device. A flare may be equipped with a radiant heat shield (with or without a refractory lining), but is not equipped with a flame air control damping system to control the air/fuel mixture. In addition, a flare may also use auxiliary fuel. The combustion flame may be elevated or at ground level. A vapor combustor, as defined in this section, is not considered a flare.(38) Fuel oil--Any oil meeting the American Society for Testing and Materials (ASTM) specifications for fuel oil in ASTM D396-01, Standard Specifications for Fuel Oils, revised 2001. This includes fuel oil grades 1, 1 (Low Sulfur), 2, 2 (Low Sulfur), 4 (Light), 4, 5 (Light), 5 (Heavy), and 6.(39) Fugitive emission--Any gaseous or particulate contaminant entering the atmosphere that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening designed to direct or control its flow.(40) Garbage--Solid waste consisting of putrescible animal and vegetable waste materials resulting from the handling, preparation, cooking, and consumption of food, including waste materials from markets, storage facilities, and handling and sale of produce and other food products.(41) Gasoline--Any petroleum distillate having a Reid vapor pressure of four pounds per square inch (27.6 kilopascals) or greater that is produced for use as a motor fuel, and is commonly called gasoline.(42) Greenhouse gases (GHGs)--the aggregate group of six greenhouse gases: carbon dioxide (CO2), nitrous oxide (N2O), methane (CH4 ), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6 ).(43) Hazardous wastes--Any solid waste identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act, as amended by Resource Conservation and Recovery Act, 42 United States Code, §§6901 et seq., as amended.(44) Heatset (used in offset lithographic printing)--Any operation where heat is required to evaporate ink oil from the printing ink. Hot air dryers are used to deliver the heat.(45) High-bake coatings--Coatings designed to cure at temperatures above 194 degrees Fahrenheit.(46) High-volume low-pressure spray guns--Equipment used to apply coatings by means of a spray gun that operates between 0.1 and 10.0 pounds per square inch gauge air pressure measured at the air cap.(47) Incinerator--An enclosed combustion apparatus and attachments that is used in the process of burning wastes for the primary purpose of reducing its volume and weight by removing the combustibles of the waste and is equipped with a flue for conducting products of combustion to the atmosphere. Any combustion device that burns 10% or more of solid waste on a total British thermal unit (Btu) heat input basis averaged over any one-hour period is considered to be an incinerator. A combustion device without instrumentation or methodology to determine hourly flow rates of solid waste and burning 1.0% or more of solid waste on a total Btu heat input basis averaged annually is also considered to be an incinerator. An open-trench type (with closed ends) combustion unit may be considered an incinerator when approved by the executive director. Devices burning untreated wood scraps, waste wood, or sludge from the treatment of wastewater from the process mills as a primary fuel for heat recovery are not included under this definition. Combustion devices permitted under this title as combustion devices other than incinerators will not be considered incinerators for application of any rule within this title provided they are installed and operated in compliance with the condition of all applicable permits.(48) Industrial boiler--A boiler located on the site of a facility engaged in a manufacturing process where substances are transformed into new products, including the component parts of products, by mechanical or chemical processes.(49) Industrial furnace--Cement kilns; lime kilns; aggregate kilns; phosphate kilns; coke ovens; blast furnaces; smelting, melting, or refining furnaces, including pyrometallurgical devices such as cupolas, reverberator furnaces, sintering machines, roasters, or foundry furnaces; titanium dioxide chloride process oxidation reactors; methane reforming furnaces; pulping recovery furnaces; combustion devices used in the recovery of sulfur values from spent sulfuric acid; and other devices the commission may list.(50) Industrial solid waste--Solid waste resulting from, or incidental to, any process of industry or manufacturing, or mining or agricultural operations, classified as follows.(A) Class 1 industrial solid waste or Class 1 waste is any industrial solid waste designated as Class 1 by the executive director as any industrial solid waste or mixture of industrial solid wastes that because of its concentration or physical or chemical characteristics is toxic, corrosive, flammable, a strong sensitizer or irritant, a generator of sudden pressure by decomposition, heat, or other means, and may pose a substantial present or potential danger to human health or the environment when improperly processed, stored, transported, or otherwise managed, including hazardous industrial waste, as defined in §335.1 and §335.505 of this title (relating to Definitions and Class 1 Waste Determination).(B) Class 2 industrial solid waste is any individual solid waste or combination of industrial solid wastes that cannot be described as Class 1 or Class 3, as defined in §335.506 of this title (relating to Class 2 Waste Determination).(C) Class 3 industrial solid waste is any inert and essentially insoluble industrial solid waste, including materials such as rock, brick, glass, dirt, and certain plastics and rubber, etc., that are not readily decomposable as defined in §335.507 of this title (relating to Class 3 Waste Determination).(51) Internal floating cover--A cover or floating roof in a fixed roof tank that rests upon or is floated upon the liquid being contained, and is equipped with a closure seal or seals to close the space between the cover edge and tank shell.(52) Leak--A volatile organic compound concentration greater than 10,000 parts per million by volume or the amount specified by applicable rule, whichever is lower; or the dripping or exuding of process fluid based on sight, smell, or sound.(53) Liquid fuel--A liquid combustible mixture, not derived from hazardous waste, with a heating value of at least 5,000 British thermal units per pound.(54) Liquid-mounted seal--A primary seal mounted in continuous contact with the liquid between the tank wall and the floating roof around the circumference of the tank.(55) Maintenance area--A geographic region of the state previously designated nonattainment under the Federal Clean Air Act Amendments of 1990 and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan under 42 United States Code, §7505a, as described in 40 Code of Federal Regulations Part 81 and in pertinent Federal Register notices. (56) Maintenance plan--A revision to the applicable state implementation plan, meeting the requirements of 42 United States Code, §7505a.(57) Marine vessel--Any watercraft used, or capable of being used, as a means of transportation on water, and that is constructed or adapted to carry, or that carries, oil, gasoline, or other volatile organic liquid in bulk as a cargo or cargo residue.(58) Mechanical shoe seal--A metal sheet that is held vertically against the storage tank wall by springs or weighted levers and is connected by braces to the floating roof. A flexible coated fabric (envelope) spans the annular space between the metal sheet and the floating roof.(59) Medical waste--Waste materials identified by the Department of State Health Services as "special waste from health care-related facilities" and those waste materials commingled and discarded with special waste from health care-related facilities.(60) Metropolitan Planning Organization--That organization designated as being responsible, together with the state, for conducting the continuing, cooperative, and comprehensive planning process under 23 United States Code (USC), §134 and 49 USC, §1607.(61) Mobile emissions reduction credit--The credit obtained from an enforceable, permanent, quantifiable, and surplus (to other federal and state rules) emissions reduction generated by a mobile source as set forth in Chapter 114, Subchapter F of this title (relating to Vehicle Retirement and Mobile Emission Reduction Credits), and that has been banked in accordance with Subchapter H, Division 1 of this chapter (relating to Emission Credit Program).(62) Motor vehicle--A self-propelled vehicle designed for transporting persons or property on a street or highway.(63) Motor vehicle fuel dispensing facility--Any site where gasoline is dispensed to motor vehicle fuel tanks from stationary storage tanks.(64) Municipal solid waste--Solid waste resulting from, or incidental to, municipal, community, commercial, institutional, and recreational activities, including garbage, rubbish, ashes, street cleanings, dead animals, abandoned automobiles, and all other solid waste except industrial solid waste.(65) Municipal solid waste facility--All contiguous land, structures, other appurtenances, and improvements on the land used for processing, storing, or disposing of solid waste. A facility may be publicly or privately owned and may consist of several processing, storage, or disposal operational units, e.g., one or more landfills, surface impoundments, or combinations of them.(66) Municipal solid waste landfill--A discrete area of land or an excavation that receives household waste and that is not a land application unit, surface impoundment, injection well, or waste pile, as those terms are defined under 40 Code of Federal Regulations §257.2. A municipal solid waste landfill (MSWLF) unit also may receive other types of Resource Conservation and Recovery Act Subtitle D wastes, such as commercial solid waste, nonhazardous sludge, conditionally exempt small-quantity generator waste, and industrial solid waste. Such a landfill may be publicly or privately owned. An MSWLF unit may be a new MSWLF unit, an existing MSWLF unit, or a lateral expansion.(67) National ambient air quality standard--Those standards established under 42 United States Code, §7409, including standards for carbon monoxide, lead, nitrogen dioxide, ozone, inhalable particulate matter, and sulfur dioxide.(68) Net ground-level concentration--The concentration of an air contaminant as measured at or beyond the property boundary minus the representative concentration flowing onto a property as measured at any point. Where there is no expected influence of the air contaminant flowing onto a property from other sources, the net ground level concentration may be determined by a measurement at or beyond the property boundary.(69) New source--Any stationary source, the construction or modification of which was commenced after March 5, 1972.(70) Nitrogen oxides (NOX )--The sum of the nitric oxide and nitrogen dioxide in the flue gas or emission point, collectively expressed as nitrogen dioxide.(71) Nonattainment area--A defined region within the state that is designated by the United States Environmental Protection Agency (EPA) as failing to meet the national ambient air quality standard (NAAQS or standard) for a pollutant for which a standard exists. The EPA will designate the area as nonattainment under the provisions of 42 United States Code, §7407(d). For the official list and boundaries of nonattainment areas, see 40 Code of Federal Regulations (CFR) Part 81 and pertinent Federal Register notices. The designations and classifications for the one-hour ozone national ambient air quality standard in 40 CFR Part 81 were retained for the purpose of anti-backsliding and upon determination by the EPA that any requirement is no longer required for purposes of anti-backsliding, then that requirement no longer applies.(72) Non-reportable emissions event--Any emissions event that in any 24-hour period does not result in an unauthorized emission from any emissions point equal to or in excess of the reportable quantity as defined in this section.(73) Opacity--The degree to which an emission of air contaminants obstructs the transmission of light expressed as the percentage of light obstructed as measured by an optical instrument or trained observer.(74) Open-top vapor degreasing--A batch solvent cleaning process that is open to the air and that uses boiling solvent to create solvent vapor used to clean or dry parts through condensation of the hot solvent vapors on the parts.(75) Outdoor burning--Any fire or smoke-producing process that is not conducted in a combustion unit.(76) Particulate matter--Any material, except uncombined water, that exists as a solid or liquid in the atmosphere or in a gas stream at standard conditions.(A) Particulate matter with diameters less than 10 micrometers (PM10 )--Particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers as measured by a reference method based on 40 Code of Federal Regulations (CFR) Part 50, Appendix J, and designated in accordance with 40 CFR Part 53, or by an equivalent method designated with that Part 53.(B) Particulate matter with diameters less than 2.5 micrometers (PM2.5 )--Particulate matter with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers as measured by a reference method based on 40 CFR Part 50, Appendix L, and designated in accordance with 40 CFR Part 53, or by an equivalent method designated with that Part 53.(77) Particulate matter emissions--All finely-divided solid or liquid material, other than uncombined water, emitted to the ambient air as measured by United States Environmental Protection Agency Reference Method 5, as specified at 40 Code of Federal Regulations (CFR) Part 60, Appendix A, modified to include particulate caught by an impinger train; by an equivalent or alternative method, as specified at 40 CFR Part 51; or by a test method specified in an approved state implementation plan.(A) Direct PM emissions--Solid particles emitted directly from an air emissions source or activity, or gaseous emissions or liquid droplets from an air emissions source or activity which condense to form particulate matter at ambient temperatures. Direct 2.5 micrometers (PM2.5 ) emissions include elemental carbon, directly emitted organic carbon, directly emitted sulfate, directly emitted nitrate, and other inorganic particles (including but not limited to crustal materials, metals, and sea salt).(B) Secondary PM emissions--Those air pollutants other than PM2.5 direct emissions that contribute to the formation of PM2.5 . PM2.5 precursors include sulfur dioxide (SO2), nitrogen oxides (NOX ), volatile organic compounds, and ammonia.(78) Petroleum refinery--Any facility engaged in producing gasoline, kerosene, distillate fuel oils, residual fuel oils, lubricants, or other products through distillation of crude oil, or through the redistillation, cracking, extraction, reforming, or other processing of unfinished petroleum derivatives.(79) PM2.5 emissions--Finely-divided solid or liquid material with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers emitted to the ambient air as measured by an applicable reference method, or an equivalent or alternative method specified in 40 Code of Federal Regulations Part 51, or by a test method approved under a state implementation plan or under a United States Environmental Protection Agency delegation or approval.(80) PM10 emissions--Finely-divided solid or liquid material with an aerodynamic diameter less than or equal to a nominal ten micrometers emitted to the ambient air as measured by an applicable reference method, or an equivalent or alternative method specified in 40 Code of Federal Regulations Part 51, or by a test method specified in an approved state implementation plan.(81) Polychlorinated biphenyl compound--A compound subject to 40 Code of Federal Regulations Part 761.(82) Process or processes--Any action, operation, or treatment embracing chemical, commercial, industrial, or manufacturing factors such as combustion units, kilns, stills, dryers, roasters, and equipment used in connection therewith, and all other methods or forms of manufacturing or processing that may emit smoke, particulate matter, gaseous matter, or visible emissions.(83) Process weight per hour--"Process weight" is the total weight of all materials introduced or recirculated into any specific process that may cause any discharge of air contaminants into the atmosphere. Solid fuels charged into the process will be considered as part of the process weight, but liquid and gaseous fuels and combustion air will not. The "process weight per hour" will be derived by dividing the total process weight by the number of hours in one complete operation from the beginning of any given process to the completion thereof, excluding any time during that the equipment used to conduct the process is idle. For continuous operation, the "process weight per hour" will be derived by dividing the total process weight for a 24-hour period by 24.(84) Property--All land under common control or ownership coupled with all improvements on such land, and all fixed or movable objects on such land, or any vessel on the waters of this state.(85) Reasonable further progress--Annual incremental reductions in emissions of the applicable air contaminant that are sufficient to provide for attainment of the applicable national ambient air quality standard in the designated nonattainment areas by the date required in the state implementation plan.(86) Regulated entity--All regulated units, facilities, equipment, structures, or sources at one street address or location that are owned or operated by the same person. The term includes any property under common ownership or control identified in a permit or used in conjunction with the regulated activity at the same street address or location. Owners or operators of pipelines, gathering lines, and flowlines under common ownership or control in a particular county may be treated as a single regulated entity for purposes of assessment and regulation of emissions events.(87) Remote reservoir cold solvent cleaning--Any cold solvent cleaning operation in which liquid solvent is pumped to a sink-like work area that drains solvent back into an enclosed container while parts are being cleaned, allowing no solvent to pool in the work area.(88) Reportable emissions event--Any emissions event that in any 24-hour period, results in an unauthorized emission from any emissions point equal to or in excess of the reportable quantity as defined in this section.(89) Reportable quantity (RQ)--Is as follows:(A) for individual air contaminant compounds and specifically listed mixtures by name or Chemical Abstracts Service (CAS) number, either:(i) the lowest of the quantities:(I) listed in 40 Code of Federal Regulations (CFR) Part 302, Table 302.4, the column "final RQ";(II) listed in 40 CFR Part 355, Appendix A, the column "Reportable Quantity"; or(III) listed as follows:(-a-) acetaldehyde - 1,000 pounds, except in the Houston-Galveston-Brazoria (HGB) and Beaumont-Port Arthur (BPA) ozone nonattainment areas as defined in paragraph (71) of this section, where the RQ must be 100 pounds;(-b-) butanes (any isomer) - 5,000 pounds;(-c-) butenes (any isomer, except 1,3-butadiene) - 5,000 pounds, except in the HGB and BPA ozone nonattainment areas as defined in paragraph (71) of this section, where the RQ must be 100 pounds;(-d-) carbon monoxide - 5,000 pounds;(-e-) 1-chloro-1,1-difluoroethane (HCFC-142b) - 5,000 pounds;(-f-) chlorodifluoromethane (HCFC-22) - 5,000 pounds;(-g-) 1-chloro-1-fluoroethane (HCFC-151a) - 5,000 pounds;(-h-) chlorofluoromethane (HCFC-31) - 5,000 pounds;(-i-) chloropentafluoroethane (CFC-115) - 5,000 pounds;(-j-) 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124) - 5,000 pounds;(-k-) 1-chloro-1,1,2,2 tetrafluoroethane (HCFC-124a) - 5,000 pounds;(-l-) 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-10mee) - 5,000 pounds;(-m-) decanes (any isomer) - 5,000 pounds;(-n-) 1,1-dichloro-1-fluoroethane (HCFC-141b) - 5,000 pounds;(-o-) 3,3-dichloro-1,1,2,2-pentafluoropropane (HCFC-225ca) - 5,000 pounds;(-p-) 1,3-dichloro-1,1,2,2,3-pentafluoropropane (HCFC-225cb) - 5,000 pounds;(-q-) 1,2-dichloro-1,1,2,2-tetrafluoroethane (CFC-114) - 5,000 pounds;(-r-) 1,1-dichlorotetrafluoroethane (CFC-114a) - 5,000 pounds;(-s-) 1,2-dichloro-1,1,2-trifluoroethane (HCFC-123a) - 5,000 pounds;(-t-) 1,1-difluoroethane (HFC-152a) - 5,000 pounds;(-u-) difluoromethane (HFC-32) - 5,000 pounds;(-v-) ethanol - 5,000 pounds;(-w-) ethylene - 5,000 pounds, except in the HGB and BPA ozone nonattainment areas as defined in paragraph (71) of this section, where the RQ must be 100 pounds;(-x-) ethylfluoride (HFC-161) - 5,000 pounds;(-y-) 1,1,1,2,3,3,3-heptafluoropropane (HFC-227ea) - 5,000 pounds;(-z-) 1,1,1,3,3,3-hexafluoropropane (HFC-236fa) - 5,000 pounds;(-aa-) 1,1,1,2,3,3-hexafluoropropane (HFC-236ea) - 5,000 pounds;(-bb-) hexanes (any isomer) - 5,000 pounds;(-cc-) isopropyl alcohol - 5,000 pounds;(-dd-) mineral spirits - 5,000 pounds;(-ee-) octanes (any isomer) - 5,000 pounds;(-ff-) oxides of nitrogen - 200 pounds in ozone nonattainment, ozone maintenance, early action compact areas, Nueces County, and San Patricio County, and 5,000 pounds in all other areas of the state, which should be used instead of the RQs for nitrogen oxide and nitrogen dioxide provided in 40 CFR Part 302, Table 302.4, the column "final RQ";(-gg-) pentachlorofluoroethane (CFC-111) - 5,000 pounds;(-hh-) 1,1,1,3,3-pentafluorobutane (HFC-365mfc) - 5,000 pounds;(-ii-) pentafluoroethane (HFC-125) - 5,000 pounds;(-jj-) 1,1,2,2,3-pentafluoropropane (HFC-245ca) - 5,000 pounds;(-kk-) 1,1,2,3,3-pentafluoropropane (HFC-245ea) - 5,000 pounds;(-ll-) 1,1,1,2,3-pentafluoropropane (HFC-245eb) - 5,000 pounds;(-mm-) 1,1,1,3,3-pentafluoropropane (HFC-245fa) - 5,000 pounds;(-nn-) pentanes (any isomer) - 5,000 pounds;(-oo-) propane - 5,000 pounds;(-pp-) propylene - 5,000 pounds, except in the HGB and BPA ozone nonattainment areas as defined in paragraph (71) of this section, where the RQ must be 100 pounds;(-qq-) 1,1,2,2-terachlorodifluoroethane (CFC-112) - 5,000 pounds;(-rr-) 1,1,1,2-tetrachlorodifluoroethane (CFC-112a) - 5,000 pounds;(-ss-) 1,1,2,2-tetrafluoroethane (HFC-134) - 5,000 pounds;(-tt-) 1,1,1,2-tetrafluoroethane (HFC-134a) - 5,000 pounds;(-uu-) 1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113) - 5,000 pounds;(-vv-) 1,1,1-trichloro-2,2,2-trilfloroethane (CFC-113a) - 5,000 pounds;(-ww-) 1,1,1-trifluoro-2,2-dichloroethane (HCFC-123) - 5,000 pounds;(-xx-) 1,1,1-trifluoroethane (HFC-143a) - 5,000 pounds;(-yy-) trifluoromethane (HFC-23) - 5,000 pounds; (-zz-) toluene - 1,000 pounds, except in the HGB and BPA ozone nonattainment areas as defined in paragraph (71) of this section, where the RQ must be 100 pounds; or(-aaa-) 3-Pentanone, 1,1,1,2,2,4,5,5,5-nonafluoro-4-(trifluoromethyl)-, CAS No. 756-13-8, or C6 fluoroketone - 5,000 pounds;(ii) if not listed in clause (i) of this subparagraph, 100 pounds;(iii) for greenhouse gases, individually or collectively, there is no reportable quantity, except for the specific individual air contaminant compounds listed in this paragraph;(B) for mixtures of air contaminant compounds:(i) where the relative amount of individual air contaminant compounds is known through common process knowledge or prior engineering analysis or testing, any amount of an individual air contaminant compound that equals or exceeds the amount specified in subparagraph (A) of this paragraph;(ii) where the relative amount of individual air contaminant compounds in subparagraph (A)(i) of this paragraph is not known, any amount of the mixture that equals or exceeds the amount for any single air contaminant compound that is present in the mixture and listed in subparagraph (A)(i) of this paragraph;(iii) where each of the individual air contaminant compounds listed in subparagraph (A)(i) of this paragraph are known to be less than 0.02% by weight of the mixture, and each of the other individual air contaminant compounds covered by subparagraph (A)(ii) of this paragraph are known to be less than 2.0% by weight of the mixture, any total amount of the mixture of air contaminant compounds greater than or equal to 5,000 pounds; or(iv) where natural gas excluding carbon dioxide, water, nitrogen, methane, ethane, noble gases, hydrogen, and oxygen or air emissions from crude oil are known to be in an amount greater than or equal to 5,000 pounds or the associated hydrogen sulfide and mercaptans in a total amount greater than 100 pounds, whichever occurs first;(C) for opacity from boilers and combustion turbines as defined in this section fueled by natural gas, coal, lignite, wood, fuel oil containing hazardous air pollutants at a concentration of less than 0.02% by weight, opacity that is equal to or exceeds 15 additional percentage points above the applicable limit, averaged over a six-minute period. Opacity is the only RQ applicable to boilers and combustion turbines described in this paragraph; or (D) for facilities where air contaminant compounds are measured directly by a continuous emission monitoring system providing updated readings at a minimum 15-minute interval an amount, approved by the executive director based on any relevant conditions and a screening model, that would be reported prior to ground level concentrations reaching at any distance beyond the closest regulated entity property line:(i) less than one-half of any applicable ambient air standards; and(ii) less than two times the concentration of applicable air emission limitations.(90) Rubbish--Nonputrescible solid waste, consisting of both combustible and noncombustible waste materials. Combustible rubbish includes paper, rags, cartons, wood, excelsior, furniture, rubber, plastics, yard trimmings, leaves, and similar materials. Noncombustible rubbish includes glass, crockery, tin cans, aluminum cans, metal furniture, and like materials that will not burn at ordinary incinerator temperatures (1,600 degrees Fahrenheit to 1,800 degrees Fahrenheit).(91) Scheduled maintenance, startup, or shutdown activity--For activities with unauthorized emissions that are expected to exceed a reportable quantity (RQ), a scheduled maintenance, startup, or shutdown activity is an activity that the owner or operator of the regulated entity whether performing or otherwise affected by the activity, provides prior notice and a final report as required by §101.211 of this title (relating to Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements); the notice or final report includes the information required in §101.211 of this title; and the actual unauthorized emissions from the activity do not exceed the emissions estimates submitted in the initial notification by more than an RQ. For activities with unauthorized emissions that are not expected to, and do not, exceed an RQ, a scheduled maintenance, startup, or shutdown activity is one that is recorded as required by §101.211 of this title. Expected excess opacity events as described in §101.201(e) of this title (relating to Emissions Event Reporting and Recordkeeping Requirements) resulting from scheduled maintenance, startup, or shutdown activities are those that provide prior notice (if required), and are recorded and reported as required by §101.211 of this title.(92) Sludge--Any solid or semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant; water supply treatment plant, exclusive of the treated effluent from a wastewater treatment plant; or air pollution control equipment.(93) Smoke--Small gas-born particles resulting from incomplete combustion consisting predominately of carbon and other combustible material and present in sufficient quantity to be visible.(94) Solid waste--Garbage, rubbish, refuse, sludge from a waste water treatment plant, water supply treatment plant, or air pollution control equipment, and other discarded material, including solid, liquid, semisolid, or containerized gaseous material resulting from industrial, municipal, commercial, mining, and agricultural operations and from community and institutional activities. The term does not include:(A) solid or dissolved material in domestic sewage, or solid or dissolved material in irrigation return flows, or industrial discharges subject to regulation by permit issued under the Texas Water Code, Chapter 26;(B) soil, dirt, rock, sand, and other natural or man-made inert solid materials used to fill land, if the object of the fill is to make the land suitable for the construction of surface improvements; or(C) waste materials that result from activities associated with the exploration, development, or production of oil or gas, or geothermal resources, and other substance or material regulated by the Railroad Commission of Texas under Texas Natural Resources Code, §91.101, unless the waste, substance, or material results from activities associated with gasoline plants, natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants and is hazardous waste as defined by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act, as amended by Resource Conservation and Recovery Act, as amended (42 United States Code, §§6901 et seq.). (95) Sour crude--A crude oil that will emit a sour gas when in equilibrium at atmospheric pressure.(96) Sour gas--Any natural gas containing more than 1.5 grains of hydrogen sulfide per 100 cubic feet, or more than 30 grains of total sulfur per 100 cubic feet.(97) Source--A point of origin of air contaminants, whether privately or publicly owned or operated. Upon request of a source owner, the executive director shall determine whether multiple processes emitting air contaminants from a single point of emission will be treated as a single source or as multiple sources.(98) Special waste from health care-related facilities--A solid waste that if improperly treated or handled, may serve to transmit infectious disease(s) and that is comprised of the following: animal waste, bulk blood and blood products, microbiological waste, pathological waste, and sharps.(99) Standard conditions--A condition at a temperature of 68 degrees Fahrenheit (20 degrees Centigrade) and a pressure of 14.7 pounds per square inch absolute (101.3 kiloPascals).(100) Standard metropolitan statistical area--An area consisting of a county or one or more contiguous counties that is officially so designated by the United States Bureau of the Budget.(101) Submerged fill pipe--A fill pipe that extends from the top of a tank to have a maximum clearance of six inches (15.2 centimeters) from the bottom or, when applied to a tank that is loaded from the side, that has a discharge opening entirely submerged when the pipe used to withdraw liquid from the tank can no longer withdraw liquid in normal operation.(102) Sulfur compounds--All inorganic or organic chemicals having an atom or atoms of sulfur in their chemical structure.(103) Sulfuric acid mist/sulfuric acid--Emissions of sulfuric acid mist and sulfuric acid are considered to be the same air contaminant calculated as H2SO4 and must include sulfuric acid liquid mist, sulfur trioxide, and sulfuric acid vapor as measured by Test Method 8 in 40 Code of Federal Regulations Part 60, Appendix A.(104) Sweet crude oil and gas--Those crude petroleum hydrocarbons that are not "sour" as defined in this section.(105) Total suspended particulate--Particulate matter as measured by the method described in 40 Code of Federal Regulations Part 50, Appendix B.(106) Transfer efficiency--The amount of coating solids deposited onto the surface or a part of product divided by the total amount of coating solids delivered to the coating application system.(107) True vapor pressure--The absolute aggregate partial vapor pressure, measured in pounds per square inch absolute, of all volatile organic compounds at the temperature of storage, handling, or processing.(108) Unauthorized emissions--Emissions of any air contaminant except water, nitrogen, ethane, noble gases, hydrogen, and oxygen that exceed any air emission limitation in a permit, rule, or order of the commission or as authorized by Texas Health and Safety Code, §382.0518(g).(109) Unplanned maintenance, startup, or shutdown activity--For activities with unauthorized emissions that are expected to exceed a reportable quantity or with excess opacity, an unplanned maintenance, startup, or shutdown activity is:(A) a startup or shutdown that was not part of normal or routine facility operations, is unpredictable as to timing, and is not the type of event normally authorized by permit; or(B) a maintenance activity that arises from sudden and unforeseeable events beyond the control of the operator that requires the immediate corrective action to minimize or avoid an upset or malfunction. (110) Upset event--An unplanned and unavoidable breakdown or excursion of a process or operation that results in unauthorized emissions. A maintenance, startup, or shutdown activity that was reported under §101.211 of this title (relating to Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements), but had emissions that exceeded the reported amount by more than a reportable quantity due to an unplanned and unavoidable breakdown or excursion of a process or operation is an upset event.(111) Utility boiler--A boiler used to produce electric power, steam, or heated or cooled air, or other gases or fluids for sale.(112) Vapor combustor--A partially enclosed combustion device used to destroy volatile organic compounds by smokeless combustion without extracting energy in the form of process heat or steam. The combustion flame may be partially visible, but at no time does the device operate with an uncontrolled flame. Auxiliary fuel and/or a flame air control damping system that can operate at all times to control the air/fuel mixture to the combustor's flame zone, may be required to ensure smokeless combustion during operation.(113) Vapor-mounted seal--A primary seal mounted so there is an annular space underneath the seal. The annular vapor space is bounded by the bottom of the primary seal, the tank wall, the liquid surface, and the floating roof or cover.(114) Vent--Any duct, stack, chimney, flue, conduit, or other device used to conduct air contaminants into the atmosphere.(115) Visible emissions--Particulate or gaseous matter that can be detected by the human eye. The radiant energy from an open flame is not considered a visible emission under this definition.(116) Volatile organic compound--As defined in 40 Code of Federal Regulations §51.100(s), except §51.100(s)(2) - (4), as amended on March 27, 2014 (79 FR 17037).(117) Volatile organic compound (VOC) water separator--Any tank, box, sump, or other container in which any VOC, floating on or contained in water entering such tank, box, sump, or other container, is physically separated and removed from such water prior to outfall, drainage, or recovery of such water.</content><note type="source"><p>Source Note: The provisions of this §101.1 adopted to be effective January 1, 1976; amended to be effective May 7, 1979, 4 TexReg 1358; amended to be effective August 22, 1980, 5 TexReg 3241; amended to be effective April 16, 1981, 6 TexReg 1240; amended to be effective March 17, 1982, 7 TexReg 901; amended to be effective December 30, 1982, 7 TexReg 4388; amended to be effective July 14, 1983, 8 TexReg 2402; amended to be effective October 25, 1985, 10 TexReg 3896; amended to be effective January 27, 1988, 13 TexReg 295; amended to be effective April 14, 1988, 13 TexReg 1539; amended to be effective December 21, 1988, 13 TexReg 6081; amended to be effective July18,1989, 14 TexReg 3285; amended to be effective February 7, 1990, 15 TexReg 434; amended to be effective June 8, 1990, 15 TexReg 2913; amended to be effective November 14, 1990, 15 TexReg 6300; amended to be effective October 22, 1991, 16 TexReg 5596; amended to be effective December 26, 1991, 16 TexReg 7205; amended to be effective February 19, 1992, 17 TexReg 1125; amended to be effective July 13, 1992, 17 TexReg 4608; amended to be effective November 15, 1992, 17 TexReg 4777; amended to be effective November 16, 1992, 17 TexReg 7781; amended to be effective March 15, 1993, 18 TexReg 1411; amended to be effective September 13, 1993, 18 TexReg 5746; amended to be effective December 3, 1993, 18 TexReg 8535; amended to be effective May 27, 1994, 19 TexReg 3701; amended to be effective August 16, 1994, 19 TexReg 5953; amended to be effective November 14, 1994, 19 TexReg 8674; amendedto be effective March 7, 1996, 21 TexReg 1544; amended to be effective May 22, 1997, 22 TexReg 4211; amended to be effective July 16, 1997, 22 TexReg 6446; amended to be effective August 5, 1997, 22 TexReg 7040; amended to be effective October 22, 1997, 22 TexReg 10319; amended to be effective December 23, 1999, 24 TexReg 11494; amended to be effective July 23, 2000, 25 TexReg 6727; amended to be effective October 18, 2001, 26 TexReg 8073; amended to be effective September 12, 2002, 27 TexReg 8499; amended to be effective June 15, 2005, 30 TexReg 3408; amended to be effective January 5, 2006, 30 TexReg 8884; amended to be effective August 16, 2007, 32 TexReg 4985; amended to be effective April 1, 2010, 35 TexReg 2556; amended to be effective March 3, 2011, 36 TexReg 1294; amended to be effective May 15, 2011, 36 TexReg 2841; amended to be effective April 17, 2014, 39 TexReg 2875;amended to be effective July 28, 2016, 41 TexReg 5428.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.2"><num value="101.2">§101.2</num><heading>Multiple Air Contaminant Sources or Properties</heading><content>(a) In an area where an additive effect occurs from the accumulation of air contaminants from two or more sources on a single property or from two or more properties, such that the level of air contaminants exceeds the ambient air quality standards established by the commission, and each source or each property is emitting no more than the allowed limit for an air contaminant for a single source or from a single property, further reduction of emissions from each source or property shall be made as determined by the commission.(b) Two or more property owners, or operators acting on behalf of a property owner, may petition the commission to have their properties designated a single property for purposes of demonstrating compliance with commission regulations and the control of air emissions.(1) The use of this section is intended for:(A) a property under the control of a single entity that has been or will be divided and placed under the control of separate entities, creating a new property line configuration; or(B) properties operated or intended to be operated as an integrated plant or plants where individual facilities are owned by separate entities, but all facilities are under the control of a single entity.(2) The petition shall be subject to the following criteria.(A) The properties must be contiguous except for intervening roads, railroads, and/or rights-of-way, which are a part of the property. Emission points separated by a public right-of-way cannot be combined into a single property designation.(B) All owners of real property, including but not limited to, fee interest owners and leaseholders, within the single property designation boundary must consent to the agreement. Owners of mineral interests only are not required to consent to the agreement.(C) The petition shall include the following information:(i) a general description of the manner in which the control of emissions and demonstration of compliance with commission regulations will be administered and controlled;(ii) designation of the party or parties who accept responsibility for off-property impacts;(iii) the existing account number(s) for each petitioner; and(iv) a description of how the petitioners meet the requirements of this rule.(D) The petition shall be accompanied by:(i) a copy of a sworn written agreement between the property owners who consent to having their properties so designated which must detail the mechanisms of control exercised on both properties;(ii) a United States Geological Survey map or equivalent indicating:(I) geographical features such as roads, watercourses, and prominent landmarks;(II) present land uses in the areas surrounding the area to be included;(III) the boundaries of the petitioners' properties; and(IV) the area to be included in the single property designation; and(iii) any other information needed by the commission in its review of the petition.(E) The executive director or commission may place such conditions on the approval of the petition as appropriate to avoid a condition of air pollution or ensure compliance with state and federal regulations.(F) The executive director may approve a petition for single property designation or an amendment to an existing designation unless otherwise prohibited by law if:(i) the petition meets all relevant statutory and administrative criteria;(ii) the petition does not raise new issues that require the interpretation of commission policy; and(iii) the public interest counsel does not raise objections.(c) In this section, the terms "property" or "properties" includes leasehold and fee interests in real property, and it does not include mineral interests.</content><note type="source"><p>Source Note: The provisions of this §101.2 adopted to be effective January 1, 1976; amended to be effective January 8, 1996, 20 TexReg 11019; amended to be effective December 23, 1999, 24 TexReg 11494.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.3"><num value="101.3">§101.3</num><heading>Circumvention</heading><content>No person shall use any plan, activity, device or contrivance which the executive director determines will, without resulting in an actual reduction of air contaminants, conceal or appear to minimize the effects of an emission which would otherwise constitute a violation of the Act or regulations. Air introduced for dilution purposes only is considered a circumvention of the regulations.</content><note type="source"><p>Source Note: The provisions of this §101.3 adopted to be effective January 1, 1976.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.4"><num value="101.4">§101.4</num><heading>Nuisance</heading><content>No person shall discharge from any source whatsoever one or more air contaminants or combinations thereof, in such concentration and of such duration as are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation, or property, or as to interfere with the normal use and enjoyment of animal life, vegetation, or property.</content><note type="source"><p>Source Note: The provisions of this §101.4 adopted to be effective January 1, 1976.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.5"><num value="101.5">§101.5</num><heading>Traffic Hazard</heading><content>No person shall discharge from any source whatsoever such quantities of air contaminants, uncombined water, or other materials which cause or have a tendency to cause a traffic hazard or an interference with normal road use.</content><note type="source"><p>Source Note: The provisions of this §101.5 adopted to be effective January 1, 1976.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.8"><num value="101.8">§101.8</num><heading>Sampling</heading><content>(a) Any person owning or operating a source which emits air contaminants into the air of this state shall, upon request by the board or the executive director, conduct sampling to determine the opacity, rate, composition, and/or concentration of such emissions. Sampling shall be conducted at a frequency and within a period of time which are reasonable as specified by the board or executive director. The sampling method shall be specified by the board or the executive director and, further, the sampling shall be conducted so as to reflect with reasonable accuracy the above listed characteristics of such emissions.(b) Any person affected by subsection (a) of this section may request the executive director to approve alternate sampling techniques or other means to determine the opacity, rate, composition, and/or concentration of emissions. The executive director may approve such alternate methods or means if it can be demonstrated that such alternatives will be substantially equivalent to the sampling methods specified by the executive director or the board.(c) If requested to obtain air contaminants emission data pursuant to subsection (a) of this section, the owner or operator shall attest to and report the results so obtained to the executive director within a reasonable time specified by and on forms furnished by the executive director.(d) Copies of all data, the computations, and results obtained under subsection (a) of this section shall be retained by the owner or operator of a source for at least five years and shall be made available to the board, or any members, employees or agents thereof, and to any local air pollution control agencies, during regular business hours.</content><note type="source"><p>Source Note: The provisions of this §101.8 adopted to be effective January 1, 1976.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.9"><num value="101.9">§101.9</num><heading>Sampling Ports</heading><content>Any person, at the request of the board, shall provide in connection with each flue a power source near the point of testing in addition to such sampling and testing facilities and sampling ports, including safe and easy access thereto, exclusive of instruments and sensing devices, as may be necessary for the board to determine the nature and quality of emissions which are or may be discharged as a result of source operations. Evidence and data based on these samples and calculations may be used to substantiate violations of the Act, rules, and regulations. Agents of the board shall be permitted to sample the stacks during operating hours.</content><note type="source"><p>Source Note: The provisions of this §101.9 adopted to be effective January 1, 1976.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.10"><num value="101.10">§101.10</num><heading>Emissions Inventory Requirements</heading><content>(a) Applicability. The owner or operator of an account or source in the State of Texas or on waters that extend 9.0 nautical miles from the shoreline meeting one or more of the following conditions shall submit emissions inventories or related data as required in subsection (b) of this section to the commission on media approved by the commission:(1) an account which meets the definition of a major facility/stationary source, as defined in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions);(2) any account in an ozone nonattainment area emitting a minimum of ten tons per year (tpy) volatile organic compounds (VOC), 25 tpy nitrogen oxides (NOX ), or 100 tpy or more of any other contaminant subject to National Ambient Air Quality Standards (NAAQS);(3) any account that emits 0.5 tpy or more of lead (Pb);(4) any account that emits or has the potential to emit 100 tpy or more of any contaminant, except for greenhouse gases as listed in §101.1 of this title (relating to Definitions) individually or collectively;(5) any account which emits or has the potential to emit 10 tpy of any single or 25 tpy of aggregate hazardous air pollutants as defined in Federal Clean Air Act (FCAA), §112(a)(1); and(6) any minor industrial source, area source, non-road mobile source, or mobile source of emissions subject to special inventories under subsection (b)(3) of this section. For purposes of this section, the term "area source" means a group of similar activities that, taken collectively, produce a significant amount of air pollution. (b) Types of inventories.(1) Initial emissions inventory. Accounts, as identified in subsection (a)(1), (2), (3), (4), or (5) of this section, shall submit an initial emissions inventory (IEI) for any criteria pollutant or hazardous air pollutant (HAP) that has not been identified in a previous inventory. The IEI shall consist of actual emissions of VOC, NOX , carbon monoxide (CO), sulfur dioxide (SO2), Pb, particulate matter with an aerodynamic diameter less than or equal to 10 micrometers (PM10 ), particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers (PM2.5 ), any other contaminant subject to an NAAQS, emissions of all HAPs identified in FCAA, §112(b), or any other contaminant requested by the commission from individual emission units within an account. For purposes of this section, the term "actual emission" is the actual rate of emissions of a pollutant from an emissions unit as it enters the atmosphere. The reporting year will be the calendar year or seasonal period as designated by the commission. Reported emission activities must include annual routine emissions; excess emissions occurring during maintenance activities, including start-ups and shutdowns; and emissions resulting from upset conditions. For the ozone nonattainment areas, the inventory shall also include typical weekday emissions that occur during the summer months. For CO nonattainment areas, the inventory shall also include typical weekday emissions that occur during the winter months. Emission calculations must follow methodologies as identified in subsection (c) of this section.(2) Statewide annual emissions inventory update (AEIU). Accounts meeting the applicability requirements during an inventory reporting period as identified in subsection (a)(1), (2), (3), (4), or (5) of this section shall submit an AEIU that consists of actual emissions as identified in paragraph (1) of this subsection if any of the following criteria are met. If none of the following criteria are met, a letter certifying such shall be submitted instead:(A) any change in operating conditions, including start-ups, permanent shut-downs of individual units, or process changes at the account, that results in at least a 5.0% or 5 tpy, whichever is greater, increase or reduction in total annual emissions of VOC, NOX , CO, SO2, Pb, PM10 , or PM2.5 from the most recently submitted emissions data of the account; or(B) a cessation of all production processes and termination of operations at the account.(3) Special inventories. Upon request by the executive director or a designated representative of the commission, any person owning or operating a source of air emissions which is or could be affected by any rule or regulation of the commission shall file emissions-related data with the commission as necessary to develop an inventory of emissions. Owners or operators submitting the requested data may make special procedural arrangements with the Emissions Assessment Section to submit data separate from routine emission inventory submissions or other arrangements as necessary to support claims of confidentiality.(c) Calculations. Actual measurement with continuous emissions monitoring systems (CEMS) is the preferred method of calculating emissions from a source. If CEMS data is not available, other means for determining actual emissions may be utilized in accordance with detailed instructions of the commission. Sample calculations representative of the processes in the account must be submitted with the inventory.(d) Certifying statements. (1) A certifying statement, required by FCAA, §182(a)(3)(B), is to be signed by the owner(s) or operator(s) and shall accompany each emissions inventory to attest that the information contained in the inventory is true and accurate to the best knowledge of the certifying official.(2) A certifying statement, required by Texas Health and Safety Code, §382.0215(f) is to be signed by the owner(s) or operators(s) required to submit an emissions inventory and shall be submitted with each emission inventory if no emissions events were experienced at the site during the reporting year to the best knowledge of the certifying official. (e) Reporting requirements. The IEI or subsequent AEIUs shall contain emissions data from the previous calendar year and shall be due on March 31 of each year or as directed by the commission. Owners or operators submitting emissions data may make special procedural arrangements with the Emissions Assessment Section to submit data separate from routine emission inventory submissions or other arrangements as necessary to support claims of confidentiality. Emissions-related data submitted under a special inventory request made under subsection (b)(3) of this section are due as detailed in the letter of request.(f) Enforcement. Failure to submit emissions inventory data as required in this section shall result in formal enforcement action under Texas Water Code, Chapter 7.</content><note type="source"><p>Source Note: The provisions of this §101.10 adopted to be effective October 1, 1992, 17 TexReg 6452; amended to be effective January 27, 1995, 20 TexReg 221; amended to be effective December 23, 1999, 24 TexReg 11494; amended to be effective April 17, 2014, 39 TexReg 2875; amended to be effective July 28, 2016, 41 TexReg 5428.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.13"><num value="101.13">§101.13</num><heading>Use and Effect of Rules</heading><content>These rules may be used by the board as guides in the exercise of discretion, where discretion is vested. They shall not be construed as a limitation or restriction on the exercise of discretion, where it exists, nor shall they be construed to deprive the board of the exercise of any power, duties, and jurisdiction conferred by law, or to limit or restrict the amount and character of data or information which may be required for the proper administration of the law.</content><note type="source"><p>Source Note: The provisions of this §101.13 adopted to be effective January 1, 1976.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.14"><num value="101.14">§101.14</num><heading>Sampling Procedures and Terminology</heading><content>Where not otherwise specified in the rules, regulations, determinations and orders of the board, the procedures used for sampling air and measuring air contaminants, and the methods of expressing the findings shall be those commonly accepted and used in the field of air pollution control.</content><note type="source"><p>Source Note: The provisions of this §101.14 adopted to be effective January 1, 1976.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.18"><num value="101.18">§101.18</num><heading>Remedies Cumulative</heading><content>The administrative and judicial procedures available to the board to prevent, correct, or remedy air pollution conditions or violations are cumulative. Within the limits of the authority set forth in the Act and these sections, the board or the executive director may act under any one or more of these procedures, as applicable to the facts of a particular air pollution condition or claimed violation.</content><note type="source"><p>Source Note: The provisions of this §101.18 adopted to be effective January 1, 1976.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.19"><num value="101.19">§101.19</num><heading>Severability</heading><content>If any provisions of any of the regulations of the board or the application of that provision to any person, situation, or circumstance is for any reason adjudged invalid, the adjudication does not affect any other provision of the regulations or the application of the adjudicated provision to any other person, situation, or circumstance. The board declares that it would have adopted the valid portions and applications of the regulations without the invalid part and to this end the provisions of the regulations are declared to be severable.</content><note type="source"><p>Source Note: The provisions of this §101.19 adopted to be effective January 1, 1976.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.20"><num value="101.20">§101.20</num><heading>Compliance with Environmental Protection Agency Standards</heading><content>Any person owning or operating a source of air contaminants shall comply with the following requirements:(1) any applicable new source performance standards promulgated by the Environmental Protection Agency (EPA) pursuant to the Federal Clean Air Act, §111, as amended;(2) any applicable emissions standards for hazardous air pollutants promulgated by the EPA pursuant to the Federal Clean Air Act, §112, as amended; and(3) the conditions of any permit issued by the EPA pursuant to 40 Code of Federal Regulations §52.21, concerning the prevention of significant deterioration of air quality.</content><note type="source"><p>Source Note: The provisions of this §101.20 adopted to be effective August 23, 1985, 10 TexReg 3017.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.21"><num value="101.21">§101.21</num><heading>The National Primary and Secondary Ambient Air Quality Standards</heading><content>The National Primary and Secondary Ambient Air Quality Standards as promulgated pursuant to section 109 of the Federal Clean Air Act, as amended, will be enforced throughout all parts of Texas.</content><note type="source"><p>Source Note: The provisions of this §101.21 adopted to be effective January 1, 1976; amended to be effective May 7, 1979, 4 TexReg 1358.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.23"><num value="101.23">§101.23</num><heading>Alternate Emission Reduction ("Bubble") Policy</heading><content>An owner or operator of any facility that is affected by any control requirement of TACB Regulations I, II, III, V, VII, and IX adopted on or after March 30, 1979, may, prior to compliance with such requirement, request the executive director to approve control of emissions from an alternate facility or from alternate facilities located on the affected property and owned or operated by or under the control of the owner or operator of the affected facility in lieu of compliance with the requirement as prescribed in the regulation, provided the alternate proposed controls are not required by any TACB rule, regulation, permit condition, board order or court order. The executive director shall approve control of emissions from alternate facilities if the applicant demonstrates that the alternate controls will yield, by the date specified in the rule, emission reductions that are substantially equivalent to the emissions reductions which would otherwise be required in terms of their quantity, character, air quality impacts including health and welfare effects, and area affected. Facilities which receive the executive director's approval of an alternate emissions control plan will be deemed to have complied with the otherwise applicable TACB rule. However, the executive director may, after notice and opportunity for public hearing, revoke the credit or authority for alternate controls if he determines that any of the prerequisites for approval of the alternate controls are no longer met or if further emission reductions are needed to meet the intent of the Texas Clean Air Act.</content><note type="source"><p>Source Note: The provisions of this §101.23 adopted to be effective March 13, 1981, 6 TexReg 763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.24"><num value="101.24">§101.24</num><heading>Inspection Fees</heading><content>(a) Applicability. The owner or operator of each account to which this rule applies shall remit to the commission an inspection fee each fiscal year. A fiscal year is defined as the period from September 1 through August 31. A fiscal year, having the same number as the next calendar year, begins on the September 1 prior to that calendar year. An account subject to both an inspection fee and emissions fee, under §101.27 of this title (relating to Emissions Fees), is required to pay only the greater of the two fees. Each account will be assessed a separate inspection fee. The inspection fee shall apply to each account which contains one or more of the types of plants, facilities, and/or processes described in subsection (f) of this section, including permitted and non-permitted facilities. References for the industrial categories used are provided in the Standard Industrial Classification (SIC) Manual (Executive Office of the President, Office of Management and Budget, 1987). If more than one SIC category can apply to an account, the fee assessed shall be the highest fee listed for the applicable classifications in the fee schedule. Provisions of this section apply to all accounts, including accounts which have not been assigned specific commission identification numbers. The owner or operator of an account subject to an inspection fee is responsible for contacting the commission to obtain an identification number. The commission will not initiate the combination or separation of accounts solely for fee assessment purposes. If an account is operated at any time during the fiscal year for which the fee is assessed, a full inspection fee is due. If the commission is notified in writing that the account is not and will not be in operation during that fiscal year, a fee will not be due. (b) Self report/billed information. Emissions/inspection fee information packets will be mailed to each affected account prior to the fiscal year for which the fee is due. The completed emissions/inspection fee basis form shall be returned to the address specified on the emissions/inspection fees basis form within 60 days of the date the agency sends the emissions/inspection fee information packet. The completed emissions/inspection fee basis form shall include, at least, the company name, mailing address, site name, all Texas Commission on Environmental Quality (TCEQ) identification numbers, the applicable SIC category, any additional information necessary to assess the fee, and the name and telephone number of the person to contact in case questions arise regarding the emissions/inspection fee basis form. If more than one SIC category can apply to an account, the category reported shall be that one with the highest associated fee. Subsequent to a review of the information submitted, a billing statement of the fee assessment will be sent to the account during the fiscal year in which the fee is due. (c) Requesting fee information packet. (1) For fiscal year 2003, if an account which is subject to the inspection fee in this section has not received the information packet described in subsection (b) of this section by November 1, 2002, the owner or operator of the account shall notify the commission by December 1, 2002. For accounts which begin operation after November 1, the owner or operator of the account shall request an information packet within 30 days of commencing operation. (2) For subsequent fiscal years, if an account which is subject to the inspection fee in this section has not received the information packet described in subsection (b) of this section by June 1 prior to the fiscal year in which the fee is due, the owner or operator of the account shall notify the commission by July 1 prior to the fiscal year in which the fee is due. For accounts which begin operation after September 1, the owner or operator of the account shall request an information packet within 30 days of commencing operation. (d) Payment. Fees must be remitted by check, certified check, electronic funds transfer, or money order made payable to the TCEQ and sent to the TCEQ address printed on the billing statement. (e) Due date. Payment of the inspection fee is due within 30 days of the date the agency sends a statement of the assessment to the facility owner or operator. If an account commences or resumes operation during the fiscal year in which the fee is assessed, the full inspection fee will be due prior to commencement or resumption of operations. (f) Inspection fee schedule. The inspection fee schedule is as follows. For fiscal years after 2003, the fiscal year 2003 fee schedule shall apply as adjusted for inflation using the Consumer Price Index (CPI). The CPI adjustment factor shall be the average of the CPI for the 12 months preceding the fiscal year for which the fee is assessed as compared to the same calculation of the CPI for the previous fiscal year (as published by the United States Bureau of Labor Statistics, CPI - All Urban Consumers, Not Seasonally Adjusted, base period 1982 - 84 = 100). Attached Graphic(g) Nonpayment of fees. Each inspection fee payment must be paid at the time and in the manner and amount provided by this subchapter. Failure to remit the full inspection fee by the due date shall result in enforcement action under Texas Water Code, §7.178. The provisions of this section, as first adopted and as amended thereafter, are and shall remain in effect for purposes of any unpaid fee assessments, and the fees assessed in accordance with such provisions as adopted or as amended remain a continuing obligation. (h) Late payments. The agency shall impose interest and penalties on owners or operators of accounts who fail to make payment of the inspection fees when due in accordance with Chapter 12 of this title (relating to Payment of Fees).</content><note type="source"><p>Source Note: The provisions of this §101.24 adopted to be effective September 24, 1987, 12 TexReg 3168; amended to be effective September 14, 1988, 13 TexReg 4385; amended to be effective June 8, 1990, 15 TexReg 2913; amended to be effective September 25, 1991, 16 TexReg 4955; amended to be effective August 31, 1992, 17 TexReg 5550; amended to be effective August 18, 1993, 18 TexReg 5080; amended to be effective August 8, 1995, 20 TexReg 5504; amended to be effective August 14, 1996, 21 TexReg 7385; amended to be effective February 14, 1997, 22 TexReg 1323; amended to be effective October 22, 1997, 22 TexReg 10319; amended to be effective October 20, 2002, 27TexReg 9592.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.26"><num value="101.26">§101.26</num><heading>Surcharge on Fuel Oil in Specified Boilers</heading><content>(a) Applicability. The owner or operator of an industrial or utility boiler, as defined in §101.1 of this title (relating to Definitions), with a heat input capacity of greater than 10.0 million British thermal units (Btu) per hour capable of using natural gas shall remit to the Texas Air Control Board (TACB) a clean fuel incentive surcharge of $.20 per million Btu on fuel oil used on or between April 15 and October 15 of each year. Provisions of this section apply only to industrial and utility boilers located in consolidated metropolitan statistical areas or metropolitan statistical areas with a population of 350,000 or more which have not met the national ambient air quality standard for ozone.(b) Exemptions. The owner or operator of an industrial or utility boiler affected by subsection (a) of this section is exempt from the surcharge in the following circumstances:(1) burning of the following oils as defined for purposes of energy recovery or disposal, provided that such burning activities are approved or permitted by TACB, Texas Water Commission, and/or the United States Environmental Protection Agency:(A) Used oil--Any oil that has been refined from crude oil, has been used, and, as a result of such use, is contaminated by physical or chemical impurities;(B) Hazardous waste-derived oil--Any oil that has been produced by processing, blending, or other treatment using hazardous wastes, as defined in §101.1 of this title (relating to Definitions);(C) Waste oil--Any by-product or co-product oil resulting from crude oil refining or petrochemical production, which is used for energy recovery on-site, provided such use does not exceed 5.0% of the manufacturing complex's fuel consumption, and any by-product oil resulting from crude oil refining or petrochemical production, which is used for energy recovery on-site, if the material has no commercial value and would otherwise be Class I industrial solid waste or hazardous waste. For purposes of this definition, the term "on-site" includes facilities which are adjacent, contiguous, or physically interconnected;(2) fuel oil use during documented periods of full or partial natural gas curtailment or during documented periods when insufficient natural gas is available to satisfy contractual obligations, or in the event of catastrophic events as defined in the Texas Clean Air Act (TCAA), §382.063(j);(3) fuel oil use in equipment testing or personnel training if limited to an aggregate of the equivalent of 48 hours full-load operation between April 15 through October 15;(4) fuel oil use under a fixed-price contract with a public works agency entered into prior to August 28, 1989.(c) Recordkeeping. The owner or operator of an industrial or utility boiler, as defined in §101.1 of this title (relating to Definitions), with a heat input capacity of greater than 10.0 million Btu per hour capable of using natural gas shall maintain records of fuel usage, including amounts and types of fuels used during April 15 to October 15 of each year. Provisions of this section apply only to industrial and utility boilers located in consolidated metropolitan statistical areas, or metropolitan statistical areas with a population of 350,000 or more which have not met the national ambient air quality standard for ozone. The fuel usage record should include documentation of any fuel oil burned as allowed by subsection (b) of this section. The fuel usage record for each year shall be maintained for two years and made available to authorized representatives of TACB and/or local air pollution control agencies upon request.(d) Payment. Surcharges shall be remitted in the form of a check or money order made payable to TACB annually by December 31, beginning in 1990. A fuel usage report documenting the amount and types of fuel used during April 15 through October 15 for each boiler affected by subsection (a) of this section shall accompany any surcharge remitted. The fuel usage report shall also include the company name, mailing address, property address, TACB account number, and the name and telephone number of the person to contact in case questions arise regarding the surcharge payment.(e) Nonpayment of surcharge. Failure to remit the fuel surcharge payment by December 31 shall result in action under the TCAA, §382.088 or §382.082.</content><note type="source"><p>Source Note: The provisions of this §101.26 adopted to be effective June 8, 1990, 15 TexReg 2913.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.27"><num value="101.27">§101.27</num><heading>Emissions Fees</heading><content>(a) Applicability. The owner or operator of an account that is required to obtain a federal operating permit as described in Chapter 122 of this title (relating to Federal Operating Permits Program) shall remit to the commission an emissions fee each fiscal year. A fiscal year is defined as the period from September 1 through August 31. A fiscal year, having the same number as the next calendar year, begins on the September 1 prior to that calendar year. Each account will be assessed a separate emissions fee. An account subject to both an emissions fee and an inspection fee, under §101.24 of this title (relating to Inspection Fees), is required to pay only the greater of the two fees. The commission will not initiate the combination or separation of accounts solely for fee assessment purposes. If an account is operated at any time during the fiscal year that a fee is being assessed, a full emissions fee is due. If the commission is notified in writing that the account is not and will not be in operation during that fiscal year, a fee will not be due.(b) Self reported/billed information. Emissions/inspection fees information packets will be mailed to each account owner or operator prior to the fiscal year that a fee is due. The completed emissions/inspection fees basis form must be returned to the address specified on the emissions/inspection fees basis form within 60 calendar days of the date the agency sends the emissions fees information packet. The completed emissions/inspection fees basis form must include, at least, the company name, mailing address, site name, all commission identification numbers, applicable Standard Industrial Classification (SIC) category, the emissions of all regulated air pollutants at the account for the reporting period, and the name and telephone number of the person to contact in case questions arise regarding the fee payment. If more than one SIC category can apply to an account, the category reported must be the one with the highest associated fee as listed in §101.24 of this title. Subsequent to a review of the information submitted, a billing statement of the fee assessment will be sent to the account owner or operator.(c) Requesting fee information packet. If an account owner or operator has not received the fee information packet described in subsection (b) of this section by June 1 prior to the fiscal year that a fee is due, the owner or operator of the account shall notify the commission by July 1 prior to the fiscal year that a fee is due. For accounts that begin or resume operation after September 1, the owner or operator of the account shall request an information packet within 30 calendar days prior to commencing operation.(d) Payment. Fees must be remitted by check, certified check, electronic funds transfer, or money order and sent to the address printed on the billing statement.(e) Due date. Payment of the emissions fee is due within 30 calendar days of the date the agency sends a statement of the assessment to the account owner or operator.(f) Basis for fees.(1) The fee must be based on allowable levels or actual emissions at the account. For purposes of this section, allowable levels are those limits as specified in an enforceable document such as a permit, certified registration of emissions, or Commission Order that are in effect during the fiscal year that a fee is due and actual emissions are the emissions of all regulated pollutants emitted from the account during the last full calendar year preceding the beginning of the fiscal year that a fee is due. Under no circumstances may the fee basis be less than the actual emissions at the account. The fee applies to the regulated pollutant emissions at the account, including those emissions from point and fugitive sources. The fee basis must include emissions during all operational conditions, including all emissions from emissions events and maintenance, startup, and shutdown activities as described in Subchapter F of this chapter (relating to Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities). Although certain fugitive emissions are excluded for applicability determination purposes under subsection (a) of this section, all fugitive emissions must be considered for fee calculations after applicability of the fee has been established. A maximum of 4,000 tons of each regulated pollutant will be used for fee calculations. The fee for each fiscal year is set at the following rates.Attached Graphic(2) The emissions tonnage for the account for fee calculation purposes will be the sum of those allowable levels or actual emissions for individual emission points or process units at the account rounded up to the nearest whole number, as follows.(A) Where there is an enforceable document such as a permit, certified registration of emissions, or a Commission Order establishing allowable levels for individual emission points or process units, the actual emissions from all individual emission points and process units at the account may be used to calculate the fee basis only if a complete and verifiable emissions inventory for the account is submitted as described in §101.10 of this title (relating to Emissions Inventory Requirements). Where a complete and verifiable emissions inventory is not submitted, the executive director may direct that the fee be based on all of the allowable levels for the account.(B) Where there is not an enforceable document such as a permit, certified registration of emissions, or a Commission Order establishing allowable levels for individual emissions points or process units; actual emissions from all individual emission points and process units must be used to calculate the fee basis. Actual production, throughput, or measurement records must be submitted along with complete documentation of calculation methods. Thorough justification is required for all assumptions made and emission factors used in such calculations.(3) For purposes of this section, the term "regulated pollutant" includes any volatile organic compound, any pollutant subject to Federal Clean Air Act (FCAA), §111, any pollutant listed as a hazardous air pollutant under FCAA, §112, each pollutant that a national primary ambient air quality standard has been promulgated (including carbon monoxide), and any other air pollutant subject to requirements under commission rules, regulations, permits, orders of the commission, or court orders. For purposes of this section, the term "regulated pollutant" does not include individual gases listed in the definition of greenhouse gases.(g) Nonpayment of fees. Each emissions fee payment must be paid at the time and in the manner and amount provided by this subchapter. Failure to remit the full emissions fee by the due date must result in enforcement action under Texas Water Code, §7.178. The provisions of this section, as first adopted and amended thereafter, are and must remain in effect for purposes of any unpaid fee assessments, and the fees assessed in accordance with such provisions as adopted or as amended remain a continuing obligation.(h) Late payments. The agency shall impose interest and penalties on owners or operators of accounts who fail to make payment of emissions fees when due in accordance with Chapter 12 of this title (relating to Payment of Fees).</content><note type="source"><p>Source Note: The provisions of this §101.27 adopted to be effective December 5, 1991, 16 TexReg 6752; amended to be effective August 31, 1992, 17 TexReg 5550; amended to be effective August 18, 1993, 18 TexReg 5080; amended to be effective August 8, 1995, 20 TexReg 5504; amended to be effective August 14, 1996, 21 TexReg 7385; amended to be effective February 14, 1997, 22 TexReg 1323; amended to be effective October 22, 1997, 22 TexReg 10319; amended to be effective September 4, 2000, 25 TexReg 8649; amended to be effective September 13, 2001, 26 TexReg 6931; amended to be effective October 20, 2002, 27 TexReg 9592; amended to be effective June 24, 2010, 35 TexReg5281; amended to be effective August 11, 2011, 36 TexReg 4964; amended to be effective April 17, 2014, 39 TexReg 2875.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scA/s101.28"><num value="101.28">§101.28</num><heading>Stringency Determination for Federal Operating Permits</heading><content>(a) Instead of the requirements imposed by an applicable requirement or a state only requirement as defined in §122.10 of this title (relating to General Definitions), a permit holder of a federal operating permit may comply with more stringent or equivalent requirements, provided the requirements:(1) are established by §122.148(c)(1)(B) of this title (relating to Permit Shield) for streamlining multiple, duplicative, redundant, and/or contradicting applicable requirements or state only requirements; and(2) are adequate to assure compliance to the same extent as the applicable requirements or state-only requirements being superseded by a more stringent or equivalent requirement.(b) A determination under subsection (a) of this section may include a method change (i.e., either a change to a commission monitoring or testing procedure which was previously approved by EPA or an alternative to an EPA-approved monitoring or test method) if approved by EPA.(c) The more stringent, equivalent, or alternative requirement established by the executive director under this section is approved for the emission unit by EPA if:(1) it is a term or condition of a federal operating permit; and(2) EPA has not objected to the permit as required by §122.350 of this title (relating to EPA Review).</content><note type="source"><p>Source Note: The provisions of this §101.28 adopted to be effective December 23, 1999, 24 TexReg 11494.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c101/scB"><num value="B">SUBCHAPTER B</num><heading>FAILURE TO ATTAIN FEE</heading><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.100"><num value="101.100">§101.100</num><heading>Definitions</heading><content>The following terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise.(1) Actual emissions--As defined in §101.10(b) of this title (relating to Emissions Inventory Requirements).(2) Area §185 Obligation--The total annual amount of §185 fee due from all applicable major stationary sources in a severe or extreme ozone nonattainment area that failed to attain the one-hour ozone National Ambient Air Quality Standard by its applicable attainment date of November 15, 2007.(3) Attainment date--The date an area is scheduled to attain the National Ambient Air Quality Standard for one-hour ozone, as documented in the state implementation plan. For the Houston-Galveston-Brazoria one-hour ozone nonattainment area, this is November 15, 2007.(4) Attainment year--For the Houston-Galveston-Brazoria one-hour ozone standard, the attainment year is calendar year 2007.(5) Baseline amount--Tons of volatile organic compounds and/or nitrogen oxides emissions calculated separately at a major stationary source, using data submitted to and recorded by the commission, under §101.106 of this title (relating to Baseline Amount Calculation).(6) Baseline emissions--Emissions reported in tons in the annual emissions inventory submitted to and recorded by the agency each calendar year per the requirements of §101.10 of this title adjusted as follows.(A) The baseline emissions must include all annual emissions associated with authorized normal operations, startups, shutdowns, and maintenance activities and excludes emissions from emissions events reported.(B) For regulated entities with emissions that are irregular, cyclic, or have emissions that vary significantly, the baseline emissions may be determined from an average of a consecutive 24-month period as allowed under §101.106(b)(2) of this title.(7) Electric utility steam generating unit--Any steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than 25 megawatts electrical output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical energy for sale is included in determining the electrical energy output capacity of the affected facility.(8) Emissions unit--As defined in §101.1 of this title (relating to Definitions).(9) Equivalency credits--An amount equivalent to the revenue collected in accordance with §101.102 of this title (relating to Equivalent Alternative Fee) for accumulation in the Fee Equivalency Account.(10) Major stationary source--As defined under §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions).(11) Section 185 Account--The name of a group of one or more major stationary sources, under common control in the Houston Galveston-Brazoria one-hour ozone standard nonattainment area.</content><note type="source"><p>Source Note: The provisions of this §101.100 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.101"><num value="101.101">§101.101</num><heading>Applicability</heading><content>The provisions of this subchapter apply to all regulated entities that are major stationary sources of volatile organic compounds or nitrogen oxides that are located in the Houston-Galveston-Brazoria one-hour ozone nonattainment area.</content><note type="source"><p>Source Note: The provisions of this §101.101 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.102"><num value="101.102">§101.102</num><heading>Equivalent Alternative Fee</heading><content>(a) Fee Equivalency Account. The executive director shall establish and maintain a Fee Equivalency Account to document fees collected and available for use in demonstrating equivalency with the Area §185 Obligation. No actual money will be deposited into the Fee Equivalency Account. Instead, the Fee Equivalency Account will reflect equivalency credits based upon revenue collected for or under authority of:(1) the Texas Emissions Reduction Plan program;(2) the Low-Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Repair Program; and/or(3) the Local Initiative Project.(b) Revenue eligibility. The revenue eligible for credits to the Fee Equivalency Account must be from the Houston-Galveston-Brazoria (HGB) one-hour ozone standard nonattainment area.(c) Revenue credited. The revenue credited to the Fee Equivalency Account shall be credited for the years funding is expended in HGB beginning with the calendar year prior to the adoption of this rule.</content><note type="source"><p>Source Note: The provisions of this §101.102 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.104"><num value="101.104">§101.104</num><heading>Equivalent Alternative Fee Accounting</heading><content>(a) Fee Equivalency Account credits. Equivalency Credits will be on a dollar-for-dollar basis and will not be discounted due to the passage of time. Equivalency Credits can be accumulated in the Fee Equivalency Account from year to year if a surplus exists in any given year and used to offset the calculated Houston-Galveston-Brazoria (HGB) one-hour ozone nonattainment area §185 Obligation as needed. (b) Area Section 185 obligation determination. Annually, the executive director shall calculate the applicable Failure to Attain Fee Obligation for all major stationary sources in the HGB one-hour ozone standard nonattainment area. The Failure to Attain Fee Obligation for each Section 185 Account will be summed. The resultant amount will represent the calendar year Area §185 Obligation for the HGB one-hour ozone standard nonattainment area. A calendar year's Area §185 Obligation will be calculated using actual emissions reported under §101.10 of this title (relating to Emissions Inventory Requirements) from the previous calendar year. (c) Annual demonstration of equivalency. By no later than December 2014 and annually thereafter until the HGB one-hour ozone nonattainment area is no longer subject to the fee by the EPA or the fee is placed into abeyance, the executive director shall complete an equivalency demonstration to determine if adequate equivalency credits were available in the Fee Equivalency Account for the applicable calendar year to meet the Area §185 Obligation calculated under subsection (b) of this section. (1) The annual determination of equivalency will be made as follows. Attached Graphic(2) If the Fee Equivalency Account balance is calculated to be less than or equal to zero in paragraph (1) of this subsection, sufficient equivalency credits were available to offset the fee obligation. The executive director shall not assess a §185 Failure to Attain fee on Section 185 Accounts for the year being assessed. (3) If the Fee Equivalency Account balance is calculated to be greater than zero in paragraph (1) of this subsection, insufficient equivalency credits were available to offset the fee obligation. The executive director shall assess a sufficient §185 Failure to Attain fee to fulfill the Area §185 Obligation. The amount due from each Section 185 Account will be prorated to generate sufficient revenue to meet the Area §185 Obligation. The proration will be calculated as follows. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §101.104 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.106"><num value="101.106">§101.106</num><heading>Baseline Amount Calculation</heading><content>(a) For the purposes of this subchapter, the baseline amount must be computed as the lower of the following:(1) total amount of baseline emissions; or(2) total emissions allowed under authorizations, including authorized emissions from maintenance, shutdown, and startup activities, applicable to the source in the attainment year.(b) For the purposes of this subchapter, the baseline emissions must be from:(1) the attainment year; or(2) if the regulated entity's emissions are irregular, cyclical, or otherwise vary significantly from year to year, any single 24-month consecutive period within a historical period preceding the calendar year containing the attainment year to compute an average baseline emissions amount (tons per year) for the major stationary source. If used, the historical period must be:(A) ten years for non-electric utility steam generating units; or(B) five years for electrical utility steam generating units.(c) If a major stationary source uses a historical consecutive period as defined in subsection (b)(2) of this section, the baseline amount estimation will:(1) use adequate data for calculating the baseline emissions units;(2) be adjusted downward to exclude any noncompliant emission that occurred while the source was operating above an emissions limitation that was legally enforceable during the consecutive 24-month period; and(3) be adjusted downward to exclude any emissions that would have exceeded an emission limitation with which the source had to comply by November 15, 2007, had such a major stationary source been required to comply with such limitations during the consecutive 24-month period.(d) When control or ownership of emission units changes during the attainment year, the emissions from those emission units will be attributed to the major stationary source with control or ownership of the emission unit on December 31st of the attainment year.(e) A baseline amount, reported in units of tons, must be calculated separately for volatile organic compounds and for nitrogen oxides. The calculation must be made for each pollutant for which the source meets the major source applicability requirements of §101.101 of this title (relating to Applicability).(f) The baseline amount calculation is subject to approval by the executive director. The baseline amount will be fixed and not be changed without the approval of the executive director except as allowed under §101.109 of this title (relating to Adjustment of Baseline Amount) until the Failure to Attain Fee no longer applies to the area as described under §101.118 of this title (relating to Cessation of Program).</content><note type="source"><p>Source Note: The provisions of this §101.106 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.107"><num value="101.107">§101.107</num><heading>Aggregated Baseline Amount</heading><content>(a) Aggregation. Notwithstanding the requirements of §101.106 and §101.108 of this title (relating to Baseline Amount Calculation and Alternative Baseline Amount), a major stationary source of emissions that meets the applicability requirements of §101.101 of this title (relating to Applicability) after calculating each pollutant's emission baseline amount in accordance with this subchapter may choose to combine: (1) volatile organic compounds (VOC) emissions into a single aggregated pollutant baseline amount for multiple major stationary sources under common control; (2) nitrogen oxides (NOX ) emissions into a single aggregated pollutant baseline amount for multiple major stationary sources under common control; (3) emissions for both VOC and NOX into a single aggregated pollutant baseline amount for a single major stationary source; and/or (4) emissions for both VOC and NOX into a single aggregated pollutant baseline amount for multiple major stationary sources under common control. (b) Pollutants aggregation. Pollutants in an aggregated amount must have: (1) the same time period for calculating the baseline amount; and (2) the same basis of either actual or authorized emissions to calculate the baseline amount. (c) Section 185 Account reporting. An owner and or operator opting to combine VOC with NOX and/or combine major stationary sources into one baseline amount shall identify all major stationary sources being aggregated under this section. (d) Failure to Attain Fee obligation requirement. The fee obligation must be calculated in the same manner that an owner or operator elects to aggregate under this section.</content><note type="source"><p>Source Note: The provisions of this §101.107 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.108"><num value="101.108">§101.108</num><heading>Alternative Baseline Amount</heading><content>(a) Alternative to setting a baseline amount under §101.106 of this title (relating to Baseline Amount Calculation), an owner or operator of a major stationary source, if qualified, may choose to set an alternative baseline amount under this section.(1) For purposes of this subchapter, the alternative baseline amount is computed as the lower of the following:(A) total amount of baseline emissions as calculated under §101.106(b) of this title reported in the emissions inventory; or(B) emissions allowed under authorization. If reported in the emissions inventory prior to or during the attainment year as required under §101.10 of this title (relating to Emissions Inventory Requirements), total authorized emissions may include the resulting authorized emissions from permit applications in process by the attainment year. The permit application for these unauthorized emissions must have been administratively complete by December 31, 2007, and the permit issued by the adoption date of this section.(2) The baseline amount for the major stationary source is determined by selecting the emissions limits on permits issued after the attainment year for the previously unauthorized emissions units separately from the remaining units at the regulated entity's major stationary source as follows.(A) The baseline amount for the previously unauthorized emissions and emissions units for which emissions limits were authorized after the attainment year will be the lower of the emissions reported in the emissions inventory for the emissions units or emissions authorized by permits for which the application was administratively complete by December 31, 2007.(B) The baseline amount for all other emissions units not included in subparagraph (A) of this paragraph at the major stationary source will be the lower of the baseline emissions reported in the emissions inventory for these emissions units and the applicable emissions limits authorized prior to December 31, 2007.(C) The baseline amount for the major stationary source will be determined by combining the lower amounts determined in accordance with subparagraphs (A) and (B) of this paragraph.(b) A baseline amount, reported in tons per year, must be calculated separately for emissions from volatile organic compounds and for nitrogen oxides. The calculation must be made for each pollutant for which the site meets the major source applicability requirements of §101.101 of this title (relating to Applicability).(c) When control or ownership of emissions units changes during the attainment year, the emissions from those emissions units will be attributed to the owner or operator of the major stationary source who has control or ownership of the emission unit on December 31st of the attainment year.(d) Except as allowed under §101.109 of this title (relating to Adjustment of Baseline Amount) or as required by subsection (a)(2) of this section, the baseline amount will be fixed and not be changed without the approval of the executive director until the Failure to Attain Fee no longer applies to the area as described under §101.118 of this title (relating to Cessation of Program).</content><note type="source"><p>Source Note: The provisions of this §101.108 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.109"><num value="101.109">§101.109</num><heading>Adjustment of Baseline Amount</heading><content>(a) The owner or operator of a Section 185 Account may request adjustment of their baseline amount if ownership and operation of emissions units is no longer under common ownership or control. Adjustments to the baseline amount are limited as follows:(1) The baseline amount, as calculated and reported for all equipment no longer under common ownership or control will be transferred from the original reporting Section 185 Account to the new Section 185 Account without modification to the reported amount; and(2) Baseline amounts for remaining equipment at a Section 185 Account will not be adjusted based on a change of ownership or control of emissions units to or from a Section 185 Account.(b) Within 90 calendar days of the effective date of a change of ownership or control emissions units, the owner or operator of each Section 185 Account affected by the change in ownership or control of emissions units in an area meeting the requirements of §101.101 of this title (relating to Applicability) shall submit to the executive director a report requesting its adjustment of the baseline amount on a form published by the executive director.(c) The baseline amount adjustment request is subject to approval by the executive director. After approval, it will be fixed and not change except as allowed under this section without the approval of the executive director until the Failure to Attain Fee no longer applies to the area as described under §101.118 of this title (relating to Cessation of Program).</content><note type="source"><p>Source Note: The provisions of this §101.109 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.110"><num value="101.110">§101.110</num><heading>Baseline Amount for New Major Stationary Sources, New Construction at a Major Stationary Source, or Major Stationary Sources with Less Than 24 Months of Operation</heading><content>(a) Baseline amount. A baseline amount may be established for major stationary sources after the attainment date as follows.(1) If a major stationary source did not meet the applicability requirements in §101.101 of this title (relating to Applicability) on the attainment date of November 15, 2007, a major stationary source may establish a baseline amount based on the first full year of operation in accordance with the requirements of this subchapter.(2) A major stationary source may include emissions limits from new emissions units authorized after the attainment date in its baseline amount determination if those emissions units were authorized by a nonattainment new source review permit, issued under Chapter 116, Subchapter B, Division 5 of this title (relating to Nonattainment Review Permits).(b) Baseline amount reporting. Within 90 calendar days of completing one full calendar year of operation, the owner or operator of each major stationary source in an area meeting the requirements of §101.101 of this title shall submit to the executive director a report establishing its baseline amount on a form published by the executive director. The baseline amount is the lower of:(1) the first full year of baseline emissions; or(2) emissions allowed under applicable authorizations.(c) For purposes of this subchapter, the emissions considered for the baseline amount for a new unit or units are restricted to the emissions units without a previously established baseline amount.(d) Adjustment. The baseline amount as established under subsection (b) of this section may be adjusted for major stationary sources meeting the applicability requirements in §101.101 of this title if the major stationary source or emissions units at the major stationary source experienced less than 24 months of consecutive operation by the area's attainment date or later. The adjusted baseline amount must be reported on a form published by the executive director within 90 calendar days of completing 24 months of operation. The adjusted baseline amount must be computed for the applicable emissions units and major stationary source as allowed under subsection (b) of this section as the lower of the following:(1) total average amount of baseline emissions for the 24-month period; or(2) emissions allowed under authorizations applicable to the major stationary source.(e) Approval. The adjusted baseline amount calculation is subject to approval by the executive director. Baseline amounts will be fixed and not change except as allowed under §101.109 of this title (relating to Adjustment of Baseline Amount) without the approval of the executive director until the Failure to Attain Fee no longer applies for the area as described under §101.118 of this title (relating to Cessation of Program).</content><note type="source"><p>Source Note: The provisions of this §101.110 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.113"><num value="101.113">§101.113</num><heading>Failure to Attain Fee Obligation</heading><content>(a) Pollutant applicability. The total fee obligation must be met for each pollutant, volatile organic compounds (VOC), nitrogen oxides (NOX ), or both, for which the Section 185 Account meets the requirements of §101.101 of this title (relating to Applicability) for any year or partial year that the Section 185 Account operated as a major stationary source. Actual VOC or NOX emissions may be kept separate or aggregated together. A single pollutant may be aggregated across multiple major stationary sources, or both VOC and NOX may be aggregated together across multiple major stationary sources. Aggregation is limited to emissions from: (1) major stationary sources that aggregated VOC baseline amounts under §101.107 of this title (relating to Aggregated Baseline Amount); (2) major stationary sources that aggregated NOX baseline amounts under §101.107 of this title; or (3) major stationary sources that aggregated VOC with NOX baseline amounts under §101.107 of this title. (b) Obligation. The owner or operator of each major stationary source to which this rule applies shall pay a fee to the commission computed in accordance with subsection (d) of this section. Payment of all fees must be paid in accordance with §101.116 of this title (relating to Failure to Attain Fee Payment). The fee will be assessed on actual emissions that exceed 80% of the pollutant baseline amount. The fee is due until the Failure to Attain Fee no longer applies to the area as described under §101.118 of this title (relating to Cessation of Program). (c) Separate pollutant obligation. Fee obligation from VOC or NOX emission major stationary sources not qualified or chosen for baseline aggregation under §101.107 of this title will remain separate and due from each major stationary source. The fee will be calculated by the method described in subsection (d) of this section. (d) Calculation of fee for emissions. The fee will be calculated in accordance with the method used for a baseline amount determination. (1) If VOC are aggregated under §101.107(a) of this title, VOC emissions from all major stationary sources in the Section 185 Account must be used for aggregated actual emissions and the aggregated baseline emissions. (2) If NOX are aggregated under §101.107(a) of this title, NOX emissions from all major stationary sources in the Section 185 Account must be used for the aggregated actual and aggregated baseline emissions. (3) If VOC are aggregated with NOX at one major stationary source under §101.107(a) of this title, VOC and NOX emissions must be used for the aggregated actual and aggregated baseline emissions. If VOC are aggregated with NOX across multiple major stationary sources, VOC and NOX emissions from each major stationary source in the Section 185 Account must be used for the aggregated actual and aggregated baseline emissions. The fee will be calculated for VOC, NOX , or both, as follows. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §101.113 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.116"><num value="101.116">§101.116</num><heading>Failure to Attain Fee Payment</heading><content>(a) Payment. Payment of fees required by this subchapter must be paid by check, certified check, electronic funds transfer, or money order made payable to the Texas Commission on Environmental Quality (TCEQ), and sent to the TCEQ address printed on the billing statement.(b) When Failure to Attain Fee begins. The first payment of the fee is due and is calculated using the actual emissions from the emissions inventory for the calendar year preceding the adoption date of this section.(c) First payment date for sources that were not major on the attainment date. The first payment of the fee is due and is calculated using the actual emissions from the emissions inventory for the later of:(1) the first calendar year the source becomes a major source; or(2) the calendar year preceding the adoption date of this section.(d) Nonpayment of fees. Each emissions fee payment must be paid at the time and in the manner and amount provided by this subsection. Failure to pay the full emissions fee by the due date will result in enforcement action under Texas Water Code (TWC), §7.178. The provisions of TWC, §7.178, as first adopted and amended thereafter, are and will remain in effect for purposes of any unpaid fee assessments, and the fees assessed in accordance with such provisions as adopted or as amended remain a continuing obligation.(e) Late payments. The agency will impose interest and penalties on owners or operators of Section 185 Accounts who fail to make payment of emissions fees when due in accordance with Chapter 12 of this title (relating to Payment of Fees).</content><note type="source"><p>Source Note: The provisions of this §101.116 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.117"><num value="101.117">§101.117</num><heading>Compliance Schedule</heading><content>(a) Baseline amount determination. The owner or operator of each major stationary source meeting the requirements of §101.101 of this title (relating to Applicability) shall submit to the executive director a report establishing its baseline amount emissions on a form published by the executive director. The Baseline Amount Determination forms for the Houston-Galveston-Brazoria one-hour ozone nonattainment area are due no later than 120 calendar days after the adoption date of this rule.(b) New major source baseline amount reporting. No later than 90 calendar days following the first full year of operation as a major source, the owner and/or operator of a major stationary source that meets the requirements of §101.101 of this title shall submit to the executive director a report establishing its baseline amount emissions on a form published by the executive director.(c) The executive director shall determine a baseline amount for any major stationary source subject to §101.101 of this title that fails to submit an approvable baseline amount by the due date requested by the commission.(1) The executive director-determined baseline amount shall be 12.5 tons for volatile organic compounds and 12.5 tons for nitrogen oxides, or, if available, the lower of the baseline emissions reported under §101.10 of this title (relating to Emissions Inventory Requirements) or authorized for the major stationary source for 2007.(2) The executive director shall not aggregate baseline amounts under §101.107 of this title (relating to Aggregated Baseline Amount) in determining a baseline amount under this subsection.(d) Payment due date. The fee payment is due no later than 30 calendar days after the invoice date. The first invoice will be issued by the end of the year following the effective date of this rule. If a Section 185 Account commences or resumes operation, the full Failure to Attain Fee payment will be due prior to commencement or resumption of operations.</content><note type="source"><p>Source Note: The provisions of this §101.117 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.118"><num value="101.118">§101.118</num><heading>Cessation of Program</heading><content>(a) The Failure to Attain Fee will continue to apply until one of the following actions is final:(1) redesignation of the Houston-Galveston-Brazoria one-hour ozone nonattainment area by the United States Environmental Protection Agency (EPA) to attainment;(2) finding of attainment by the EPA; or(3) any action or rulemaking by the EPA to end the Failure to Attain fee.(b) Notwithstanding subsection (a) of this section, the Failure to Attain Fee will be calculated but not invoiced, and the fee collection may be placed in abeyance by the executive director if three consecutive years of quality-assured data resulting in a design value that did not exceed the one-hour ozone National Ambient Air Quality Standard (NAAQS), or a demonstration indicating that the area would have attained by the attainment date but for emissions emanating from outside the United States, are submitted to the EPA. The design value may exclude days submitted to the EPA by the executive director that exceeded the NAAQS because of exceptional events. Fee collection will remain in abeyance until the EPA takes final action on its review of the certified monitoring data and any demonstration(s).</content><note type="source"><p>Source Note: The provisions of this §101.118 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.120"><num value="101.120">§101.120</num><heading>Eligibility for Equivalent Alternative Obligation</heading><content>(a) Alternative option. Notwithstanding any requirement in this subchapter, the owner or operator of Section 185 Accounts obligated to pay a Failure to Attain Fee may submit a request to the executive director to partially or completely fulfill the Failure to Attain Fee obligation with an equivalent alternative obligation in compliance with the requirements with §101.121 and §101.122 of this title (relating to Equivalent Alternative Obligation and Using Supplemental Environmental Project to Fulfill an Equivalent Alternative Obligation, respectively). (1) A Failure to Attain Fee obligation from volatile organic compounds (VOC) or nitrogen oxides (NOX ) emissions from Section 185 Accounts not fulfilled under this section will remain separate and due from each regulated entity. (2) Fee obligation from VOC and/or NOX emissions not fulfilled under this section will be calculated by the method described in §101.113 of this title (relating to Failure to Attain Fee Obligation). (b) Failure to Attain Obligation. The entire Failure to Attain Fee obligation is due in accordance with §101.117 of this title (relating to Compliance Schedule) for all Section 185 Accounts not meeting the requirements of §101.121 and §101.122 of this title. (c) The owner or operator of a Section 185 Account must inform the executive director if they are selecting an equivalent alternative obligation using forms approved by the executive director. The owner or operator of a Section 185 Account must submit a form selecting their equivalent alternative obligation that lists the tons of each pollutant or amount of payment that will meet the fee obligation with the alternative obligation as described in §101.121 and §101.122 of this title. (d) No later than July 31 in the year following the rule adoption and annually thereafter: (1) all equivalent alternatives under §101.121 of this title must be approved, exercised, or otherwise completed; and (2) all Supplemental Environmental Projects under §101.122 of this title must be approved and funded. (e) If the executive director does not receive notification of a selection of equivalent alternative obligation and the equivalent alternative obligation is not approved and funded, exercised, or otherwise completed, the fee payment will be due in full under the provisions of §101.116 of this title (relating to Failure to Attain Fee Payment).</content><note type="source"><p>Source Note: The provisions of this §101.120 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.121"><num value="101.121">§101.121</num><heading>Equivalent Alternative Obligation</heading><content>(a) The owner or operator of a Section 185 Account subject to this subchapter may submit a request to partially or completely fulfill its §185 Failure to Attain Fee obligation by substituting emission reductions, on a volatile organic compounds or nitrogen oxides specific basis, in an amount equivalent to the tons on which the Failure to Attain Fee has been assessed by relinquishing an equivalent amount of any combination of:(1) emissions reduction credits;(2) discrete emission reduction credits;(3) current or banked Highly-Reactive Volatile Organic Compound Emissions Cap and Trade program allowances; and/or(4) current or banked Mass Emissions Cap and Trade program allowances.(b) The use of the provisions of this section to fulfill a Failure to Attain Fee obligation is subject to approval by the executive director.</content><note type="source"><p>Source Note: The provisions of this §101.121 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scB/s101.122"><num value="101.122">§101.122</num><heading>Using Supplemental Environmental Project to Fulfill an Equivalent Alternative Obligation</heading><content>(a) The owner and/or operator of a Section 185 Account subject to this subchapter may submit a request to partially or completely fulfill its Failure to Attain Fee obligation by contributing to a Supplemental Environmental Project (SEP), on a volatile organic compounds (VOC) or nitrogen oxides (NOX ) specific basis by either: (1) an amount equivalent to the tons on which the Failure to Attain Fee has been assessed; or (2) an amount equivalent to the Failure to Attain Fee amount assessed. (b) The SEP must directly reduce the amount of VOC and/or NOX emissions in the Houston-Galveston-Brazoria one-hour ozone nonattainment area. (c) The SEP must be enforceable through an Agreed Order or other enforceable document. (d) The use of SEP funds must be on a dollar-for-dollar basis and shall not be discounted due to the passage of time. Credit from SEP funds may be accumulated from year to year, and if a surplus exists in any given year, the funds may be used to offset the calculated Failure to Attain Fee as needed. (e) Funds in a SEP used to offset an administrative penalty cannot be used to offset a Failure to Attain Fee obligation. (f) The use of a SEP to fulfill a Failure to Attain Fee obligation is subject to approval by the executive director.</content><note type="source"><p>Source Note: The provisions of this §101.122 adopted to be effective June 12, 2013, 38 TexReg 3610.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c101/scC"><num value="C">SUBCHAPTER C</num><heading>VOLUNTARY SUPPLEMENTAL LEAK DETECTION PROGRAM</heading><section identifier="/us/state/tx/tac/t30/p1/c101/scC/s101.150"><num value="101.150">§101.150</num><heading>Purpose and Applicability</heading><content>(a) Purpose. The purpose of this subchapter is to provide a program that encourages and provides incentives for voluntary monitoring of components not subject to commission rules for leak detection and repair in effect on the date of detection, using remote sensing technologies, such as optical gas imaging technology. Participation under this subchapter is voluntary. Failure to comply with the requirements of this subchapter results in ineligibility for an incentive in §101.155 of this title (concerning Program Incentives). Failure to comply with any requirement of this subchapter is not a violation of a commission permit or rule subject to commission enforcement action.(b) Applicability. The following sources are eligible for participation in the program - any authorized equipment or facilities in VOC service, including processing, storage, and transfer:(1) that are not subject to a required fugitive monitoring program; or(2) where an alternative leak detection method is not the monitoring method required in a permit or rule.</content><note type="source"><p>Source Note: The provisions of this §101.150 adopted to be effective June 24, 2010, 35 TexReg 5284.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scC/s101.151"><num value="101.151">§101.151</num><heading>Voluntary Supplemental Leak Detection Definitions</heading><content>(a) Alternative leak detection technology--Technology other than that specified by the United States Environmental Protection Agency Method 21, including optical gas imaging technology, designed to detect emissions of air contaminants.(b) Imaging--A means or process of making emissions visible that may otherwise be invisible to the naked eye.(c) Leak--For purposes of this subchapter, a leak is any emissions imaged by an optical gas imaging instrument, as defined in this section.(d) Optical gas imaging instrument--An instrument that makes emissions visible that may otherwise be invisible to the naked eye.(e) Repair--The adjustment or alteration of a component in order to eliminate a leak.(f) Supplemental detection method--Any leak detection method that supplements or adds to an existing technology approved by the executive director such as 40 Code of Federal Regulations Part 60, Appendix A-7, Method 21 monitoring program.</content><note type="source"><p>Source Note: The provisions of this §101.151 adopted to be effective June 24, 2010, 35 TexReg 5284.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scC/s101.153"><num value="101.153">§101.153</num><heading>Voluntary Supplemental Leak Detection Program</heading><content>(a) General program objective. Owners or operators are encouraged to voluntarily and routinely use an alternative leak detection technology to detect and repair leaks not otherwise detectable.(b) Elements of an approvable program. In order to be considered for approval a program must include, at a minimum:(1) A schedule for leak surveys to be conducted at least once per year.(2) If optical gas imaging is the supplemental detection method used, then the leak detection devices shall meet the following specifications:(A) the requirements of 40 Code of Federal Regulations (CFR) §60.18(i)(1) (December 22, 2008); and,(B) the requirements of the daily instrument check as specified in 40 CFR §60.18(i)(2) (December 22, 2008).(3) The daily instrument check must be performed by each person that is performing imaging for that day.(4) If optical gas imaging is the supplemental detection method used, any person that performs the supplemental leak detection of this subchapter shall comply with the following minimum training requirements:(A) The operator of the optical gas imaging instrument must receive a minimum of 24 hours of initial training on the optical gas imaging instrument before using the instrument for the purposes of the supplemental leak detection in this section.(B) Operators using optical gas imaging instruments for this supplemental leak detection shall comply with one of the following requirements for on-going training purposes:(i) operators shall attend an annual eight-hour refresher training class on the optical gas imaging instrument used for this supplemental leak detection; or(ii) operators shall maintain a minimum of 100 hours annually of hands-on operational experience with the model of optical gas imaging instrument used for the supplemental leak detection. Operators electing this option shall maintain a written record of the operator's operational experience with the optical gas imaging instrument.(c) Exceptions. The following information cannot be used to support a program incentive under this subchapter:(1) where the leak was independently detected, or an investigation of the leak was initiated by the executive director or personnel of any air pollution program with jurisdiction, before the leak was detected by the owner or operator;(2) information resulting from an audit performed under the Texas Environmental, Health, and Safety Audit Privilege Act; and(3) emissions from equipment or facilities constructed or modified without authorization.(d) Repair.(1) Except to the extent that the size and complexity of the repair warrants a repair period in excess of 45 days, repairs must be completed within 45 days of the leak detected by the alternative leak detection technology. If the repair of a leak within 45 days after the leak is detected would require a process unit shutdown that would create more emissions than the repair would eliminate, the repair may be delayed until the next scheduled process unit shutdown; and,(2) The leak and its repair must not have caused a nuisance (as defined in §101.4 of this title (relating to Nuisance).(e) Recordkeeping. The owner or operator participating in this program shall maintain records on site, or at a pre-determined off-site location, for five years. Records must be available for inspection by the executive director or local air pollution control program with jurisdiction upon request. The records must include:(1) If optical gas imaging is the supplemental detection method used:(A) digital recordings of the leak when first observed;(B) recordings which document the successful repair of the equipment or component;(C) all digital recordings of leaks and repairs shall be saved in a non-proprietary file format; and,(D) the digital recordings of leaks and repairs shall contain information readily available from the camera including date, time, and camera settings.(2) Documentation demonstrating compliance with approvable program elements listed in subsection (b)(1) - (4) of this section.(3) The records will include information on the completion of the repair sufficient to demonstrate compliance with this program.</content><note type="source"><p>Source Note: The provisions of this §101.153 adopted to be effective June 24, 2010, 35 TexReg 5284.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scC/s101.155"><num value="101.155">§101.155</num><heading>Program Incentives</heading><content>If leaks are detected and repairs are completed and recorded in compliance with this subchapter, one or both of the following incentives will be awarded:(1) Compliance history-based penalty reductions. The participation of the owner or operator in this program may be applied to the Compliance History in a manner consistent with Chapter 60 of this title (relating to Compliance History; or,(2) Conditional limit to enforcement action. To the extent consistent with federal requirements, the commission may not take an enforcement action against an owner or operator of a facility participating in the program established under this subchapter for a leak or an emission of an air contaminant that would otherwise be punishable as a violation of the law or of the terms of the permit under which the facility operates if the leak or emission was detected by using alternative technology and it would not have been detected under the commission's regulatory program for leak detection and repair in effect on the date of the detection.</content><note type="source"><p>Source Note: The provisions of this §101.155 adopted to be effective June 24, 2010, 35 TexReg 5284.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c101/scF"><num value="F">SUBCHAPTER F</num><heading>EMISSIONS EVENTS AND SCHEDULED MAINTENANCE, STARTUP, AND SHUTDOWN ACTIVITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c101/scF/s101.201"><num value="101.201">§101.201</num><heading>Emissions Event Reporting and Recordkeeping Requirements</heading><content>(a) The following requirements for reportable emissions events apply.(1) As soon as practicable, but not later than 24 hours after the discovery of an emissions event, the owner or operator of a regulated entity shall:(A) determine if the event is a reportable emissions event; and(B) notify the commission office for the region in which the regulated entity is located, and all appropriate local air pollution control agencies with jurisdiction, if the emissions event is reportable.(2) The initial 24-hour notification for reportable emissions events, with the exception of emissions from boilers or combustion turbines referenced in the definition of reportable quantity (RQ) in §101.1 of this title (relating to Definitions) for each regulated entity, must at a minimum, identify for each emissions point with emissions that exceed an RQ:(A) the name of the owner or operator of the regulated entity experiencing an emissions event;(B) the commission Regulated Entity Number of the regulated entity experiencing an emissions event, if a Regulated Entity Number exists, or if there is not a Regulated Entity Number, the air account number of the regulated entity. If a Regulated Entity Number and air account number do not exist, then identify the location of the release and a contact telephone number;(C) the common name of the process units or areas, the common name of the facilities that incurred the emissions event, and the common name of the emission points where the unauthorized emissions exceeded an RQ were released to the atmosphere;(D) the date and time of the discovery of the emissions;(E) the estimated duration of the emissions;(F) the compound descriptive type of the individually listed compounds or mixtures of air contaminants released during the emissions event, in the definition of RQ in §101.1 of this title that are known through common process knowledge, past engineering analysis, or testing to have equaled or exceeded the RQ;(G) the estimated total quantities for those compounds or mixtures described in subparagraph (F) of this paragraph;(H) the best known cause of the emissions event at the time of the initial 24-hour notification, if known; and(I) the actions taken, or being taken, to correct the emissions event and minimize the emissions.(3) The initial 24-hour notification for reportable emissions events for boilers or combustion turbines referenced in the definition of RQ in §101.1 of this title must identify for each emission point with excess opacity that exceeds the RQ by more than 15%:(A) the name of the owner or operator of the regulated entity experiencing an emissions event;(B) the commission Regulated Entity Number of the regulated entity experiencing an emissions event, if a Regulated Entity Number exists, or if there is not a Regulated Entity Number, the air account number of the regulated entity. If a Regulated Entity Number and air account number do not exist, then identify the location of the release and a contact telephone number;(C) the best known cause of the emissions event, if known at the time of notification;(D) the common name of the process units or areas, the common name of the facilities that experienced the emissions event, and the common name of the emission points where the unauthorized opacity that exceeded the RQ occurred;(E) the date and time of the discovery of the emissions event;(F) the estimated duration or expected duration of the emissions;(G) the estimated opacity; and(H) the actions taken, or being taken, to correct the emissions event and minimize the emissions.(4) The owner or operator of a regulated entity experiencing a reportable emissions event that also requires an initial notification under §327.3 of this title (relating to Notification Requirements) may satisfy the initial 24-hour notification requirements of this section by complying with the requirements under §327.3 of this title.(b) The owner or operator of a regulated entity experiencing an emissions event shall create a final record of all reportable and non-reportable emissions events as soon as practicable, but no later than two weeks after the end of an emissions event. Final records must be maintained on-site for a minimum of five years and be made readily available upon request to commission staff or personnel of any air pollution program with jurisdiction. If a regulated entity is not normally staffed, records of emissions events may be maintained at the staffed location within Texas that is responsible for the day-to-day operations of the regulated entity.(1) The final record of a reportable emissions event must identify for all emission points involved in the emissions event:(A) the name of the owner or operator of the regulated entity experiencing an emissions event;(B) the commission Regulated Entity Number of the regulated entity experiencing an emissions event, if a Regulated Entity Number and air account number exists, or if there is not a Regulated Entity Number, the air account number of the regulated entity. If a Regulated Entity Number and air account number do not exist, then identify the location of the release and a contact telephone number;(C) the physical location of the points at which emissions to the atmosphere occurred;(D) the common name of the process units or areas, the common name and the agency-established facility identification number of the facilities that experienced the emissions event, and the common name and the agency-established emission point numbers where the unauthorized emissions were released to the atmosphere. Owners or operators of those facilities and emission points, that the agency has not established facility identification numbers or emission point numbers for, are not required to provide the facility identification numbers and emission point numbers in the report, but are required to provide the common names in the report.(E) the date and time of the discovery of the emissions event;(F) the estimated duration of the emissions;(G) the compound descriptive type of all individually listed compounds or mixtures of air contaminants in the definition of RQ in §101.1 of this title, from all emission points involved in the emissions event, that are known through common process knowledge or past engineering analysis or testing to have been released during the emissions event, except for boilers or combustion turbines referenced in the definition of RQ in §101.1 of this title. Compounds or mixtures of air contaminants, that have an RQ greater than or equal to 100 pounds and the amount released is less than ten pounds in a 24-hour period, are not required to be specifically listed in the report, instead these compounds or mixtures of air contaminants may be identified together as "other";(H) the estimated total quantities for those compounds or mixtures described in subparagraph (G) of this paragraph; the preconstruction authorization number or rule citation of the standard permit, permit by rule, or rule, if any, governing the facilities involved in the emissions event; and the authorized emissions limits, if any, for the facilities involved in the emissions events, except for boilers or combustion turbines referenced in the definition of RQ in §101.1 of this title, which record only the authorized opacity limit and the estimated opacity during the emissions event. Good engineering practice and methods must be used to provide reasonably accurate representations for emissions and opacity. Estimated emissions from compounds or mixtures of air contaminants that are identified as "other" under subparagraph (G) of this paragraph, are not required for each individual compound or mixture of air contaminants, however, a total estimate of emissions must be provided for the category identified as "other";(I) the basis used for determining the quantity of air contaminants emitted, except for boilers or combustion turbines referenced in the definition of RQ in §101.1 of this title;(J) the best known cause of the emissions event at the time of reporting;(K) the actions taken, or being taken, to correct the emissions event and minimize the emissions; and(L) any additional information necessary to evaluate the emissions event.(2) Records of non-reportable emissions events must identify:(A) the name of the owner or operator of the regulated entity experiencing an emissions event;(B) the commission Regulated Entity Number and air account number of the regulated entity experiencing an emissions event, if a Regulated Entity Number and air account number exists, or if there is not a Regulated Entity Number, the air account number of the regulated entity. If a Regulated Entity Number and air account number do not exist, then identify the location of the release and a contact telephone number;(C) the physical location of the points at which emissions to the atmosphere occurred;(D) the common name of the process units or areas, the common name and the agency-established facility identification number of the facilities that experienced the emissions event, and the common name and the agency-established emission point numbers where the unauthorized emissions were released to the atmosphere. Owners or operators of those facilities and emission points that the commission has not established facility identification numbers or emission point numbers for are not required to provide the facility identification numbers and emission point numbers in the report, but are required to provide the common names in the report;(E) the date and time of the discovery of the emissions event;(F) the estimated duration of the emissions;(G) the compound descriptive type of the individually listed compounds or mixtures of air contaminants, in the definition of RQ in §101.1 of this title, from all emission points involved in the emissions event, that are known through common process knowledge or past engineering analysis, except for boilers or combustion turbines referenced in the definition of RQ in §101.1 of this title and that were unauthorized. Compounds or mixtures of air contaminants, that have an RQ greater than or equal to 100 pounds and the amount released is less than ten pounds in a 24-hour period, are not required to be specifically listed in the report, instead these compounds or mixtures of air contaminants may be identified together as "other";(H) the estimated total quantities and the authorized emissions limits for those compounds or mixtures described in subparagraph (G) of this paragraph; the preconstruction authorization number or rule citation of the standard permit, permit by rule, or rule, if any, governing the facilities involved in the emissions event; and the authorized emissions limits, if any, for the facilities involved in the emissions events, except for boilers or combustion turbines referenced in the definition of RQ in §101.1 of this title, which record only the authorized opacity limit and the estimated opacity during the emissions event. Good engineering practice and methods must be used to provide reasonably accurate representations for emissions and opacity. Estimated emissions from compounds or mixtures of air contaminants that are identified as "other" under subparagraph (G) of this paragraph, are not required for each individual compound or mixture of air contaminants, however, a total estimate of emissions must be provided for the category identified as "other";(I) the basis used for determining the quantity of air contaminants emitted, except for boilers or combustion turbines referenced in the definition of RQ in §101.1 of this title;(J) the best known cause of the emissions event at the time of recording;(K) the actions taken, or being taken, to correct the emissions event and minimize the emissions; and(L) any additional information necessary to evaluate the emissions event.(c) For all reportable emissions events, if the information required in subsection (b) of this section differs from the information provided in the initial 24-hour notification under subsection (a) of this section, the owner or operator of the regulated entity shall submit a copy of the final record to the commission office for the region in which the regulated entity is located and to appropriate local air pollution agencies with jurisdiction no later than two weeks after the end of the emissions event. If the owner or operator does not submit a record under this subsection, the information provided in the initial 24-hour notification under subsection (a) of this section will be the final record of the emissions event, provided the initial 24-hour notification was submitted electronically in accordance with subsection (g) of this section. Any emissions of greenhouse gases, individually or collectively, are not required to be submitted under this subsection, except for specific individual air contaminant compounds listed in the definition of RQ in §101.1 of this title.(d) The owner or operator of a boiler or combustion turbine, as defined in §101.1 of this title, fueled by natural gas, coal, lignite, wood, or fuel oil containing hazardous air pollutants at a concentration of less than 0.02% by weight, that is equipped with a continuous emission monitoring system that completes a minimum of one operating cycle (sampling, analyzing, and data recording) for each successive 15-minute interval, and is required to submit excess emission reports by other state or federal requirements, is exempt from creating, maintaining, and submitting final records of reportable and non-reportable emissions events of the boiler or combustion turbine under subsections (b) and (c) of this section if the notice submitted under subsection (a) of this section contains the information required under subsection (b) of this section.(e) As soon as practicable, but not later than 24 hours after the discovery of an excess opacity event, as defined in §101.1 of this title, where the owner or operator was not already required to provide an initial 24-hour notification under subsection (a)(2) or (3) of this section, the owner or operator shall notify the commission office for the region in which the regulated entity is located, and all appropriate local air pollution control agencies with jurisdiction. In the notification, the owner or operator shall identify:(1) the name of the owner or operator of the regulated entity experiencing the excess opacity event;(2) the commission Regulated Entity Number and air account number of the regulated entity experiencing an opacity event, if a Regulated Entity Number and air account number exists, or if there is not a Regulated Entity Number, the air account number of the regulated entity. If a Regulated Entity Number and air account number do not exist, then identify the location of the release and a contact telephone number;(3) the physical location of the excess opacity event;(4) the common name of the process units or areas, the common name of the facilities where the excess opacity event occurred, and the common name of the emission points where the excess opacity event occurred;(5) the date and time of the discovery of the excess opacity event;(6) the estimated duration of the excess opacity;(7) the estimated opacity;(8) the authorized opacity limit for the facilities having the excess opacity event;(9) the best known cause of the excess opacity event at the time of the notification; and(10) the actions taken, or being taken, to correct the excess opacity event.(f) The owner or operator of any regulated entity subject to the provisions of this section shall perform, upon request by the executive director or any air pollution control agency with jurisdiction, a technical evaluation of each emissions event. The evaluation must include at least an analysis of the probable causes of each emissions event and any necessary actions to prevent or minimize recurrence. The evaluation must be submitted in writing to the executive director and to the appropriate local air pollution agencies with jurisdiction within 60 days from the date of request. The 60-day period may be extended by the executive director. Additionally, the owner or operator of a regulated entity experiencing an emissions event must provide, in writing, additional or more detailed information regarding the emissions event when requested by the executive director or any air pollution control agency with jurisdiction, within the time established in the request.(g) On and after January 1, 2003, notifications and reports required in subsection (c) of this section must be submitted electronically to the commission using the electronic forms provided by the commission. On and after January 1, 2004, notifications required in subsections (a) and (e) of this section must be submitted via commission's secure Web server, facsimile, or electronic mail to the commission using electronic forms provided by the commission. Notwithstanding the requirement to report initial 24-hour notifications electronically after January 1, 2004, the owner or operator of a regulated entity experiencing a reportable emissions event that also requires an initial notification under §327.3 of this title, is not required to report the event electronically under this section provided the owner or operator complies with the requirements under §327.3 of this title and in subsections (a) and (c) of this section. If the initial notification is not submitted by using an online form on the commission's secure Web server, the owner or operator must submit the identical information on the commission's secure Web server within 48 hours of discovery of the event. In the event the commission's server is unavailable due to technical failures or scheduled maintenance, events may be reported via facsimile to the appropriate regional office. The commission will provide an alternative means of notification in the event that the commission's electronic reporting system is inoperative. Electronic notification and reporting is not required for small businesses that meet the small business definition in Texas Water Code, §5.135(g)(2) and to appropriate local air pollution control agencies with jurisdiction. Small businesses shall provide notifications and reporting by any viable means that meet the time frames required by this section.(h) Annual emissions event reporting: beginning in calendar year 2007, on or before March 31 of each calendar year or as directed by the executive director, each owner or operator of a regulated entity, as defined in §101.1 of this title that is subject to reporting under §101.10 of this title (relating to Emissions Inventory Requirements), that experienced at least one emissions event during the calendar year shall report to the executive director, and all appropriate local air pollution control agencies with jurisdiction, the following:(1) the total number of reportable and the total number of non-reportable emissions events experienced at the regulated entity;(2) the estimated total quantities for all compounds or mixtures of air contaminants, by compound or mixture, in the definition of RQ in §101.1 of this title that, by facility, were emitted during emissions events at the regulated entity. Compounds or mixtures of air contaminants, that have an RQ greater than or equal to 100 pounds and the amount released is less than one pound in a 24-hour period, are not required to be included in the report. Good engineering practice and methods must be used to provide reasonably accurate representations for emissions and opacity. This paragraph does not apply to boilers and combustion turbines referenced in the definition of RQ in §101.1 of this title that must report only the estimated opacities during emissions events and duration of unauthorized opacity; and(3) owners and operators of regulated entities that are subject to reporting under §101.10 of this title shall provide the information required by this subsection as part of their reporting under §101.10 of this title.</content><note type="source"><p>Source Note: The provisions of this §101.201 adopted to be effective September 12, 2002, 27 TexReg 8499; amended to be effective January 5, 2006, 30 TexReg 8884; amended to be effective April 17, 2014, 39 TexReg 2875; amended to be effective July 30, 2015, 40 TexReg 4767.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scF/s101.211"><num value="101.211">§101.211</num><heading>Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements</heading><content>(a) The owner or operator of a regulated entity conducting a scheduled maintenance, startup, or shutdown activity shall notify the commission office for the region in which the regulated entity is located and all appropriate local air pollution control agencies with jurisdiction at least ten days prior to any scheduled maintenance, startup, or shutdown activity that is expected to cause an unauthorized emission that equals or exceeds the reportable quantity (RQ) as defined in §101.1 of this title (relating to Definitions), by emissions point in any 24-hour period and/or an activity where the owner or operator expects only an excess opacity event as defined in §101.1 of this title. If notice cannot be given ten days prior to a scheduled maintenance, startup, or shutdown activity, notification must be given as soon as practicable prior to the scheduled activity. Maintenance, startup, or shutdown activities where the actual emissions exceed the emissions in the notification by more than an RQ or for which a notification was not submitted prior to the activity are either upsets or unplanned maintenance, startup, or shutdown activities, depending upon the reason for exceeding the estimate. Excess opacity events where unauthorized emissions result are emissions events. Owners and operators of a regulated entity with emissions events shall report such events as emissions events in accordance with the requirements in §101.201 of this title (relating to Emissions Event Reporting and Recordkeeping Requirements), or this section as applicable and §101.222 of this title (relating to Demonstrations).(1) The notification for a scheduled maintenance, startup, or shutdown activity, except for boilers and combustion turbines referenced in the definition of RQ in §101.1 of this title, must identify:(A) the name of the owner or operator;(B) the commission Regulated Entity Number of the regulated entity, if a Regulated Entity Number and air account number exist(s), or if there is not a Regulated Entity Number, the air number of the regulated entity. If a Regulated Entity Number and air account number do not exist, then identify the location of the release and a contact telephone number;(C) the physical location of the points at which emissions from the scheduled maintenance, startup, or shutdown activity will occur;(D) the type of scheduled maintenance, startup, or shutdown activity and the reason for the scheduled activity;(E) the expected date and time of the scheduled maintenance, startup, or shutdown activity, and expected duration of any maintenance activity;(F) the common name of the process units or areas, the common name and the agency-established facility identification number of the facilities that will be involved in the emissions activity, and the common name and the agency-established emission point numbers where the unauthorized emissions may be released to the atmosphere. Owners or operators of those facilities and emission points that the agency has not established facility identification numbers or emission point numbers for are not required to provide the facility identification numbers and emission point numbers in the report, but are required to provide the common names in the report;(G) the expected duration of the emissions from the scheduled maintenance, startup, or shutdown activity;(H) the compound descriptive type of the individually listed compounds or mixtures of air contaminants, in the definition of RQ in §101.1 of this title, for all emission points involved in the emissions activity, that through common process knowledge or past engineering analysis or testing are expected to equal or exceed the RQ. Compounds or mixtures of air contaminants, that have an RQ greater than or equal to 100 pounds and the amount released is less than ten pounds in a 24-hour period, are not required to be specifically listed in the report, instead these compounds or mixtures of air contaminants may be identified together as "other";(I) the estimated total quantities for those compounds or mixtures described in subparagraph (H) of this paragraph; the preconstruction authorization number or rule citation of the standard permit, permit by rule, or rule, if any, governing the facilities involved in the activity; authorized emissions limits, if any, for the facilities involved in the emissions activity, and, if applicable, the estimated opacity and the authorized opacity limit. Good engineering practice and methods must be used to provide reasonably accurate representations for emissions and opacity. Estimated emissions from compounds or mixtures of air contaminants that are identified as "other" under subparagraph (H) of this paragraph, are not required for each individual compound or mixture of air contaminants, however, a total estimate of emissions must be provided for the category identified as "other";(J) the basis used for determining the quantity of air contaminants to be emitted; and(K) the actions taken to minimize the emissions from the scheduled maintenance, startup, or shutdown activity.(2) The notification for a scheduled maintenance, startup, or shutdown activity involving a boiler or combustion turbine referenced in the definition of RQ in §101.1 of this title, or where the owner or operator expects only an excess opacity event and the owner or operator was not already required to provide a notification under paragraph (1) of this subsection, must identify:(A) the name of the owner or operator;(B) the commission Regulated Entity Number of the regulated entity, if a Regulated Entity Number and air account number exist(s), or if there is not a Regulated Entity Number, the air account number of the regulated entity. If a Regulated Entity Number and air account number do not exist, then identify the location of the release and a contact telephone number;(C) the physical location of the scheduled maintenance, startup, or shutdown activity;(D) the type of scheduled maintenance, startup, or shutdown activity and the reason for the scheduled activity;(E) the common name of the process units or areas, the common name and the agency-established facility identification numbers of the facility that experienced the excess opacity event, and the common name and the agency-established emission point numbers where the excess opacity event occurred. Owners or operators of those facilities and emission points that the agency has not established facility identification numbers or emission point numbers for are not required to provide the facility identification numbers and emission point numbers in the report, but are required to provide the common names in the report;(F) the expected date and time of the scheduled maintenance, startup, or shutdown activity, and expected duration of any maintenance activity;(G) the estimated duration of the emissions from the scheduled maintenance, startup, or shutdown activity;(H) the estimated opacity and the authorized opacity limit for those emission points that unauthorized opacity is expected; and(I) the actions taken, or being taken, to minimize the emissions from the scheduled maintenance, startup, or shutdown activity.(b) The owner or operator of a regulated entity conducting a scheduled maintenance, startup, or shutdown activity shall create a final record of all scheduled maintenance, startup, and shutdown activities with unauthorized emissions, or with opacity exceedances from boilers and combustion turbines referenced in the definition of RQ in §101.1 of this title. The final record must be created as soon as practicable, but no later than two weeks after the end of each scheduled activity. Final records must be maintained on-site for a minimum of five years and be made readily available upon request to commission staff or personnel of any air pollution program with jurisdiction. If a regulated entity is not normally staffed, records of scheduled maintenance, startup, and shutdown activities may be maintained at the staffed location within Texas that is responsible for day-to-day operations of the regulated entity. Such scheduled activity records must identify:(1) for owners and operators of regulated entities that were required to notify under subsection (a) of this section:(A) the name of the owner or operator;(B) the commission Regulated Entity Number of the regulated entity, if a Regulated Entity Number and air account number exist(s), or if there is not a Regulated Entity Number, the air account number of the regulated entity. If a Regulated Entity Number and air account number do not exist, then identify the location of the regulated entity and a contact telephone number;(C) the physical location of the scheduled points at which emissions from the maintenance, startup, or shutdown activity occurred;(D) the type of scheduled maintenance, startup, or shutdown activity and the reason for the scheduled activity;(E) the common name of the process units or areas, the common name and the agency-established facility identification number of the facilities that experienced the emissions activity, and the common name and the agency-established emission point numbers where the unauthorized emissions were released to the atmosphere. Owners or operators of those facilities and emission points that the agency has not established facility identification numbers or emission point numbers for are not required to provide the facility identification numbers and emission point numbers in the report, but are required to provide the common names in the report;(F) the date and time of the scheduled maintenance, startup, or shutdown activity, and the duration of any maintenance activity;(G) the duration of the emissions from the scheduled maintenance, startup, or shutdown activity;(H) the compound descriptive type of all individually listed compounds or mixtures of air contaminants, in the definition of RQ in §101.1 of this title, involved in the emissions activity, that are known through common process knowledge or past engineering analysis or testing to have been released during the scheduled maintenance, startup, or shutdown activity, except for boilers or combustion turbines referenced in the definition of RQ in §101.1 of this title. Compounds or mixtures of air contaminants, that have an RQ greater than or equal to 100 pounds and the amount released is less than ten pounds in a 24-hour period, are not required to be specifically listed in the report instead these compounds or mixtures of air contaminants may be identified together as "other";(I) the estimated total quantities and the authorized emissions limits for those compounds or mixtures described in subparagraph (H) of this paragraph; the preconstruction authorization number or rule citation of the standard permit, permit by rule, or rule, any, governing the facilities involved in the scheduled maintenance, startup, or shutdown activity; authorized emissions limits, if any, for the facility involved in the scheduled maintenance, startup, or shutdown activity, and, if applicable, the estimated opacity and authorized opacity limit, except for boilers or combustion turbines referenced in the definition of RQ in §101.1 of this title that record only the authorized opacity limit and the estimated opacity during the emissions event. Good engineering practice and methods must be used to provide reasonably accurate representations for emissions and opacity. Estimated emissions from compounds or mixtures of air contaminants that are identified as "other" under subparagraph (H) of this paragraph are not required for each individual compound or mixture of air contaminants; however, a total estimate of emissions must be provided for the category identified as "other";(J) the basis used for determining the quantity of air contaminants to be emitted, except for boilers or combustion turbines referenced in the definition of RQ in §101.1 of this title; and(K) the actions taken to minimize the emissions from the scheduled maintenance, startup, or shutdown activity;(2) for owners and operators of regulated entities that were not required to notify under subsection (a) of this section:(A) the name of the owner or operator;(B) the commission Regulated Entity Number of the regulated entity if a Regulated Entity Number and air account number exist(s), or if there is not a Regulated Entity Number, the air account number of the regulated entity. If a Regulated Entity Number and air account number do not exist, then identify the location of the release and a contact telephone number;(C) the physical location of the scheduled points at which emissions from the maintenance, startup, or shutdown activity occurred;(D) the type of scheduled maintenance, startup, or shutdown activity and the reason for the scheduled activity;(E) the common name of the process unit or areas, the common name and the agency-established facility identification numbers of the facilities that experienced the emissions activity, and the common name and the agency-established emission point numbers where the unauthorized emissions were released to the atmosphere. Owners or operators of those facilities and emission points that the agency has not established facility identification numbers or emission point numbers for are not required to provide the facility identification numbers and emission point numbers in the report, but are required to provide the common names in the report;(F) the date and time of the scheduled maintenance, startup, or shutdown activity, and the duration of any maintenance activity;(G) the duration of the emissions from the scheduled maintenance, startup, or shutdown activity;(H) the compound descriptive type of the individually listed compounds or mixtures of air contaminants, in the definition of RQ in §101.1 of this title, that are known through common process knowledge, past engineering analysis, except for boilers or combustion turbines referenced in the definition of RQ in §101.1 of this title and that were unauthorized. Compounds or mixtures of air contaminants, that have an RQ greater than or equal to 100 pounds and the amount released is less than ten pounds in a 24-hour period, are not required to be specifically listed in the record instead these compounds or mixtures of air contaminants may be identified together as "other;" and(I) the estimated total quantities and the authorized emissions limits for those compounds or mixtures described in subparagraph (H) of this paragraph. Good engineering practice and methods must be used to provide reasonably accurate representations for emissions and opacity. Estimated emissions from compounds or mixtures of air contaminants that are identified as "other" under subparagraph (H) of this paragraph are not required for each individual compound or mixture of air contaminants, however, a total estimate of emissions must be provided for the category identified as "other."(c) For any scheduled maintenance, startup, or shutdown activity for which an initial notification was submitted under subsection (a) of this section, which does not provide all the information required in subsection (b) of this section or if the information has changed from the prior notification, the owner or operator of the regulated entity shall submit a final record as required by subsection (b) of this section to the commission office for the region in which the regulated entity is located and to appropriate local air pollution agencies with jurisdiction no later than two weeks after the end of the scheduled activity. If the owner or operator does not submit a record under this subsection, the information provided under subsection (a) of this section will be the final record of the scheduled activity.(d) The owner or operator of a boiler or combustion turbine as defined in §101.1 of this title fueled by natural gas, coal, lignite, wood, or fuel oil containing hazardous air pollutants at a concentration of less than 0.02% by weight, that is equipped with a continuous emission monitoring system that completes a minimum of one operating cycle (sampling, analyzing, and data recording) for each successive 15-minute interval, and is required to submit excess emissions reports by other state or federal rules, is exempt from creating, maintaining, and submitting final records of scheduled maintenance, startup, and shutdown activities with unauthorized emissions under subsections (b) and (c) of this section, if the notice submitted under subsection (a) of this section contains the information required under subsection (b) of this section.(e) The executive director may specify the amount, time, and duration of emissions that will be allowed during the scheduled maintenance, startup, or shutdown activity. The owner or operator of any source subject to the provisions of this section shall submit a technical plan for any scheduled maintenance, startup, or shutdown activity when requested by the executive director with a copy to the appropriate local air pollution agencies with jurisdiction. The plan must contain a detailed explanation of the means by which emissions will be minimized during the scheduled maintenance, startup, or shutdown activity. For those emissions that must be released into the atmosphere, the plan must include the reasons such emissions cannot be reduced further.(f) For annual scheduled maintenance, startup, and shutdown activity reporting on or before March 31, of each calendar year, beginning in calendar year 2007, or as directed by the executive director, each owner or operator of a regulated entity site, as defined in §101.1 of this title that is subject to reporting under §101.10 of this title (relating to Emissions Inventory Requirements), that experienced at least one scheduled maintenance, startup, and shutdown activity during the calendar year must report to the executive director, and all appropriate local air pollution control agencies with jurisdiction:(1) the number of reportable and non-reportable scheduled maintenance, startup, and shutdown activities experienced at the regulated entity; and(2) the estimated total quantities for all compounds or mixtures, by compound or mixture, of air contaminants, in the definition of RQ in §101.1 of this title that, by facility, emitted during scheduled maintenance, startup, and shutdown activities at the regulated entity. Compounds or mixtures of air contaminants, that have an RQ greater than or equal to 100 pounds and the amount released is less than one pound in a 24-hour period, are not required to be included in the report. Good engineering practice and methods must be used to provide reasonably accurate representations for emissions and opacity. This paragraph does not apply to boilers and combustion turbines referenced in the definition of RQ in §101.1 of this title, that must report only the estimated opacities during emissions events and duration of unauthorized opacity; and(3) owners and operators of regulated entities that are subject to reporting under §101.10 of this title shall provide the information required by this subsection as part of their reporting under §101.10 of this title.</content><note type="source"><p>Source Note: The provisions of this §101.211 adopted to be effective September 12, 2002, 27 TexReg 8499; amended to be effective January 5, 2006, 30 TexReg 8884; amended to be effective July 30, 2015, 40 TexReg 4767.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scF/s101.221"><num value="101.221">§101.221</num><heading>Operational Requirements</heading><content>(a) All pollution emission capture equipment and abatement equipment must be maintained in good working order and operated properly during facility operations. Emission capture and abatement equipment must be considered to be in good working order and operated properly when operated in a manner such that each facility is operating within authorized emission limitations.(b) Smoke generators and other devices used for training inspectors in the evaluation of visible emissions at a training school approved by the commission are not required to meet the allowable emission levels set by the rules, but must be located and operated such that a nuisance is not created at any time.(c) Equipment, machines, devices, flues, and/or contrivances built or installed to be used at a domestic residence for domestic use are not required to meet the allowable emission levels set by the rules unless specifically required by a particular rule.(d) Sources emitting air contaminants that cannot be controlled or reduced due to a lack of technological knowledge may be exempt from the applicable rules when so determined and ordered by the commission. The commission may specify limitations and conditions as to the operation of such exempt sources. The commission will not exempt sources from complying with any federal requirements, including New Source Performance Standards (40 Code of Federal Regulations Part 60) and National Emission Standards for Hazardous Air Pollutants (40 Code of Federal Regulations Parts 61 and 63).(e) The owner or operator of a facility has the burden of proof to demonstrate that the applicable criteria identified in §101.222 (relating to Demonstrations) are satisfied.(f) This section does not limit the commission's power to require corrective action as necessary to minimize emissions, or to order any action indicated by the circumstances to control a condition of air pollution.</content><note type="source"><p>Source Note: The provisions of this §101.221 adopted to be effective September 12, 2002, 27 TexReg 8499; amended to be effective January 8, 2004, 29 TexReg 118; amended to be effective June 23, 2005, 30 TexReg 3593; amended to be effective January 5, 2006, 30 TexReg 8884.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scF/s101.222"><num value="101.222">§101.222</num><heading>Demonstrations</heading><content>(a) Excessive emissions event determinations. The executive director shall determine when emissions events are excessive. To determine whether an emissions event or emissions events are excessive, the executive director will evaluate emissions events using the following criteria: (1) the frequency of the facility's emissions events; (2) the cause of the emissions event; (3) the quantity and impact on human health or the environment of the emissions event;(4) the duration of the emissions event;(5) the percentage of a facility's total annual operating hours during which emissions events occur; and (6) the need for startup, shutdown, and maintenance activities. (b) Non-excessive upset events. Upset events that are determined not to be excessive emissions events are subject to an affirmative defense to all claims in enforcement actions brought for these events, other than claims for administrative technical orders and actions for injunctive relief, for which the owner or operator proves all of the following: (1) the owner or operator complies with the requirements of §101.201 of this title (relating to Emissions Event Reporting and Recordkeeping Requirements). In the event the owner or operator fails to report as required by §101.201(a)(2) or (3), (b), or (e) of this title, the commission will initiate enforcement for such failure to report and for the underlying emissions event itself. This subsection does not apply when there are minor omissions or inaccuracies that do not impair the commission's ability to review the event according to this rule, unless the owner or operator knowingly or intentionally falsified the information in the report; (2) the unauthorized emissions were caused by a sudden, unavoidable breakdown of equipment or process, beyond the control of the owner or operator; (3) the unauthorized emissions did not stem from any activity or event that could have been foreseen and avoided or planned for, and could not have been avoided by better operation and maintenance practices or technically feasible design consistent with good engineering practice; (4) the air pollution control equipment or processes were maintained and operated in a manner consistent with good practice for minimizing emissions and reducing the number of emissions events; (5) prompt action was taken to achieve compliance once the operator knew or should have known that applicable emission limitations were being exceeded, and any necessary repairs were made as expeditiously as practicable; (6) the amount and duration of the unauthorized emissions and any bypass of pollution control equipment were minimized and all possible steps were taken to minimize the impact of the unauthorized emissions on ambient air quality; (7) all emission monitoring systems were kept in operation if possible; (8) the owner or operator actions in response to the unauthorized emissions were documented by contemporaneous operation logs or other relevant evidence; (9) the unauthorized emissions were not part of a frequent or recurring pattern indicative of inadequate design, operation, or maintenance; (10) the percentage of a facility's total annual operating hours during which unauthorized emissions occurred was not unreasonably high; and (11) the unauthorized emissions did not cause or contribute to an exceedance of the national ambient air quality standards (NAAQS), prevention of significant deterioration (PSD) increments, or to a condition of air pollution. (c) Unplanned maintenance, startup, or shutdown activity. Emissions from an unplanned maintenance, startup, or shutdown activity that are determined not to be excessive are subject to an affirmative defense to all claims in enforcement actions brought for these activities, other than claims for administrative technical orders and actions for injunctive relief, for which the owner or operator proves the emissions were from an unplanned maintenance, startup, or shutdown activity, as defined in §101.1 of this title (relating to Definitions), and all of the following: (1) for a scheduled maintenance, startup, or shutdown activity, the owner or operator complies with the requirements of §101.211 of this title (relating to Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements). For an unscheduled maintenance, startup, and shutdown activity, the owner or operator complies with the requirements of §101.201 of this title and demonstrates that reporting under §101.211(a) of this title was not reasonably possible. Failure to report information that does not impair the commission's ability to review the activity, such as minor omissions or inaccuracies, will not result in enforcement action and loss of opportunity to claim the affirmative defense, unless the owner or operator knowingly or intentionally falsified the information in the report; (2) the periods of unauthorized emissions from any unplanned maintenance, startup, or shutdown activity could not have been prevented through planning and design; (3) the unauthorized emissions from any unplanned maintenance, startup, or shutdown activity were not part of a recurring pattern indicative of inadequate design, operation, or maintenance; (4) if the unauthorized emissions from any unplanned maintenance, startup, or shutdown activity were caused by a bypass of control equipment, the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; (5) the facility and air pollution control equipment were operated in a manner consistent with good practices for minimizing emissions; (6) the frequency and duration of operation in an unplanned maintenance, startup, or shutdown mode resulting in unauthorized emissions were minimized and all possible steps were taken to minimize the impact of the unauthorized emissions on ambient air quality; (7) all emissions monitoring systems were kept in operation if possible; (8) the owner or operator actions during the period of unauthorized emissions from any unplanned maintenance, startup, or shutdown activity were documented by contemporaneous operating logs or other relevant evidence; and (9) unauthorized emissions did not cause or contribute to an exceedance of the NAAQS, PSD increments, or a condition of air pollution. (d) Excess opacity events. Excess opacity events due to an upset that are subject to §101.201(e) of this title, or for other opacity events where there was no emissions event, are subject to an affirmative defense to all claims in enforcement actions for these events, other than claims for administrative technical orders and actions for injunctive relief, for which the owner or operator proves all of the following: (1) the owner or operator complies with the requirements of §101.201 of this title. Failure to report information that does not impair the commission's ability to review the event, such as minor omissions or inaccuracies, will not result in enforcement action and loss of opportunity to claim the affirmative defense, unless the owner or operator knowingly or intentionally falsified the information in the report; (2) the opacity was caused by a sudden, unavoidable breakdown of equipment or process beyond the control of the owner or operator; (3) the opacity did not stem from any activity or event that could have been foreseen and avoided or planned for, and could not have been avoided by better operation and maintenance practices or by technically feasible design consistent with good engineering practice; (4) the air pollution control equipment or processes were maintained and operated in a manner consistent with good practice for minimizing opacity; (5) prompt action was taken to achieve compliance once the operator knew or should have known that applicable opacity limitations were being exceeded and any necessary repairs were made as expeditiously as practicable; (6) the amount and duration of the opacity event and any bypass of pollution control equipment were minimized and all possible steps were taken to minimize the impact of the opacity on ambient air quality; (7) all emission monitoring systems were kept in operation if possible; (8) the owner or operator actions in response to the opacity event were documented by contemporaneous operation logs or other relevant evidence; (9) the opacity event was not part of a frequent or recurring pattern indicative of inadequate design, operation, or maintenance; and (10) the opacity event did not cause or contribute to a condition of air pollution.(e) Opacity events resulting from unplanned maintenance, startup, or shutdown activity. Excess opacity events, or other opacity events where there was no emissions event, that result from an unplanned maintenance, startup, or shutdown activity that are determined not to be excessive are subject to an affirmative defense to all claims in enforcement actions brought for these activities, other than claims for administrative technical orders and actions for injunctive relief, for which the owner or operator proves the opacity resulted from an unplanned maintenance, startup, or shutdown activity, as defined in §101.1 of this title, and all of the following: (1) for excess opacity events that result from a scheduled maintenance, startup, or shutdown activity, the owner or operator complies with the requirements of §101.211 of this title. For excess opacity events that result from an unscheduled maintenance, startup, and shutdown activity, the owner or operator complies with the requirements of §101.201 of this title and demonstrates that reporting pursuant to §101.211(a) of this title was not reasonably possible. Failure to report information that does not impair the commission's ability to review the event, such as minor omissions or inaccuracies, will not result in enforcement action and loss of opportunity to claim the affirmative defense, unless the owner or operator knowingly or intentionally falsified the information in the report; (2) the opacity was caused by a sudden, unavoidable breakdown of equipment or process beyond the control of the owner or operator; (3) the periods of opacity could not have been prevented through planning and design; (4) the opacity was not part of a recurring pattern indicative of inadequate design, operation, or maintenance; (5) if the opacity event was caused by a bypass of control equipment, the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; (6) the facility and air pollution control equipment were operated in a manner consistent with good practices for minimizing opacity; (7) the frequency and duration of operation in a startup or shutdown mode resulting in opacity were minimized; (8) all emissions monitoring systems were kept in operation if possible; (9) the owner or operator actions during the opacity event were documented by contemporaneous operating logs or other relevant evidence; and (10) the opacity event did not cause or contribute to a condition of air pollution. (f) Obligations. Subsections (b) - (e) and (h) of this section do not remove any obligations to comply with any other existing permit, rule, or order provisions that are applicable to an emissions event or a maintenance, startup, or shutdown activity. Any affirmative defense provided by subsections (b) - (e) and (h) applies only to violations of state implementation plan requirements. An affirmative defense cannot apply to violations of federally promulgated performance or technology based standards, such as those found in 40 Code of Federal Regulations Parts 60, 61, and 63. The affirmative defense is available only for emissions that have been reported or recorded. (g) Frequent or recurring pattern. Evidence of any past event subject to subsections (b) - (e) of this section is admissible and relevant to demonstrate a frequent or recurring pattern of events, even if all of the criteria in that subsection are proven. (h) Planned maintenance, startup, or shutdown activity. Unauthorized emissions or opacity events from a maintenance, startup, or shutdown activity that are not unplanned that have been reported or recorded in compliance with §101.211 of this title are subject to an affirmative defense to all claims in enforcement actions brought for these activities, other than claims for administrative technical orders and actions for injunctive relief, for which the owner or operator proves all of the criteria listed in subsection (c)(1) - (9) of this section for emissions, or subsection (e)(1) - (9) of this section for opacity events and the following: (1) the owner or operator has filed an application to authorize the emissions or opacity by the following dates: (A) for facilities in Standard Industrial Classification (SIC) code 2911 (Petroleum Refining), one year after the effective date of this section; (B) for facilities in major group SIC code 28 (Chemicals and Allied Products), except SIC code 2895, two years after the effective date of this section; (C) for facilities in SIC code 2895 (Carbon Black), four years after the effective date of this section; (D) for facilities in SIC code 4911 (Electric Services), five years after the effective date of this section;(E) for facilities in SIC codes 1311 (Crude Petroleum and Natural Gas), 1321 (Natural Gas Liquids), 4612 (Crude Petroleum Pipelines), 4613 (Refined Petroleum Pipelines), 4922 (Natural Gas Transmission), 4923 (Natural Gas Transmission and Distribution), six years after the effective date of this section; and (F) for all other facilities, seven years after the effective date of this section. (2) an owner or operator who filed an application listed in paragraph (1) of this subsection has provided prompt response for any requests by the executive director for information regarding that application. (i) The affirmative defense in subsection (h) of this section will expire upon the earlier of one year after the application deadlines in subsection (h)(1)(A) and (C) - (F) of this section, or the issuance or denial of a permit applied for under subsection (h)(1)(A) and (C) - (F) of this section, or voidance of an application filed under subsection (h)(1)(A) and (C) - (F) of this section. The affirmative defense in subsection (h) of this section will expire upon the earlier of two years after the application deadline in subsection (h)(1)(B) of this section or the issuance or denial of a permit applied for under subsection (h)(1)(B) of this section, or voidance of an application filed under subsection (h)(1)(B) of this section. If the permit application remains pending after the affirmative defense expires, the commission will use enforcement discretion for all claims in enforcement actions brought for excess emissions from planned maintenance, startup, or shutdown activities, other than claims for administrative technical orders and actions for injunctive relief for which the owner or operator proves the criteria in subsections (c) and (e) of this section, until the issuance or denial of a permit applied for under subsection (h)(1) of this section, or voidance of an application filed under subsection (h)(1) of this section. (j) The executive director shall process permit applications referenced in subsection (h) of this section in accordance with the schedule set out in §116.114 of this title (relating to Application Review Schedule).(k) Federal court jurisdiction. Subsections (b) - (e) of this section are not intended to limit a federal court's jurisdiction or discretion to determine the appropriate remedy in an enforcement action. (l) Delayed applicability. Subsection (k) of this section does not apply until all appeals regarding the United States Environmental Protection Agency's rulemaking entitled "State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction," published in the Federal Register on June 12, 2015, (SIP Call) as it applies to subsections (b) - (e) of this section, have ended, and there is a final and nonappealable court decision that upholds the SIP Call.</content><note type="source"><p>Source Note: The provisions of this §101.222 adopted to be effective September 12, 2002, 27 TexReg 8499; amended to be effective January 8, 2004, 29 TexReg 118; amended to be effective June 23, 2005, 30 TexReg 3593; amended to be effective January 5, 2006, 30 TexReg 8884; amended to be effective November 24, 2016, 41 TexReg 9142.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scF/s101.223"><num value="101.223">§101.223</num><heading>Actions to Reduce Excessive Emissions</heading><content>(a) The executive director will provide written notification to an owner or operator of a facility upon determination that a facility has had one or more excessive emissions events. The written notification must contain, at a minimum, a description of the emissions events that were determined to be excessive and the time period when those excessive emissions events were evaluated. Upon receipt of this notice, the owner or operator of the facility must take action to reduce emissions and shall either file a corrective action plan (CAP) or, if the emissions are sufficiently frequent, quantifiable, and predictable, in which case the owner or operator may file a letter of intent to obtain authorization from the commission for emissions from such events, in lieu of a CAP.(1) When a CAP is required, the owner or operator must submit a CAP to the commission office for the region and local air pollution agency with jurisdiction in which the facility is located within 60 days after receiving notification from the executive director that a facility has had one or more excessive emissions events. The 60-day period may be extended once for up to 15 days by the executive director. The CAP must, at a minimum:(A) identify the cause or causes of each excessive emissions event, including all contributing factors that led to each emissions event;(B) specify the control devices or other measures that are reasonably designed to prevent or minimize similar emissions events in the future;(C) identify operational changes the owner or operator will take to prevent or minimize similar emissions events in the future; and(D) specify time frames within which the owner or operator will implement the components of the CAP.(2) An owner or operator must obtain commission approval of a CAP no later than 120 days after the commission receives the first CAP submission from an owner or operator. If not disapproved within 45 days after initial filing, the CAP must be deemed approved. The owner or operator of a facility must respond completely and adequately, as determined by the executive director, to all written requests for information concerning its CAP within 15 days after the date of such requests, or by any other deadline specified in writing. An owner or operator of a facility may request written approval of a CAP, in which case the commission shall take final written action to approve or disapprove the plan within 120 days from the receipt of such request. Once approved, the owner or operator must implement the CAP in accordance with the approved schedule. The implementation schedule is enforceable by the commission. The commission may require the owner or operator to revise a CAP if the commission finds the plan, after implementation begins, to be inadequate to prevent or minimize emissions or emissions events. If the CAP is disapproved, or determined to be inadequate to prevent or minimize excessive emissions events, the executive director shall identify deficiencies in the CAP and state the reasons for disapproval of the CAP in a letter to the owner or operator. If the commission finds a CAP inadequate to prevent or minimize excessive emissions events after implementation begins, an owner or operator must file an amended CAP within 60 days after written notification by the executive director.(3) If the emissions from excessive emissions events are sufficiently frequent, quantifiable, and predictable, and an owner or operator of a facility elects to file a letter of intent to obtain authorization from the commission for the emissions from excessive emissions events, the owner or operator must file such letter within 30 days of the notification that a facility has had one or more excessive emissions events. If the commission denies the requested authorization, the owner or operator of a facility shall file a CAP in accordance with paragraph (1) of this subsection within 45 days after receiving notice of the commission denial.(A) If the intended authorization is a permit, the owner or operator must file a permit application with the executive director within 120 days after the filing of the letter of intent. The owner or operator of a facility must respond completely and adequately, as determined by the executive director, to all written requests for information concerning its permit application within 15 days after the date of such requests, or by any other deadline specified in writing.(B) If the intended authorization is a permit by rule or standard permit, the owner or operator must obtain authorization within 120 days after filing of the letter of intent.(b) The executive director, after a review of the excessive emissions events determinations made at a regulated entity as defined in §101.1 of this title (relating to Definitions), may forward these determinations to the commission requesting that it issue an order finding that the regulated entity has chronic excessive emissions events. Orders issued by the commission under this section will be part of the entity's compliance history as provided in Chapter 60 of this title (relating to Compliance History). The commission may issue an order finding that a regulated entity has chronic excessive emissions events after considering the following factors:(1) the size, nature, and complexity of the regulated entity operations;(2) the frequency of emissions events at the regulated entity; and(3) the reason or reasons for excessive emissions event determinations at that regulated entity.(c) If an emissions event recurs because an owner or operator fails to take corrective action as required and within the time specified by a CAP approved by the commission, the emissions event is excessive and the affirmative defenses in §101.222 of this title (relating to Demonstrations) do not apply.(d) Nothing in this section will limit the commission's ability to bring enforcement actions for violations of the Texas Clean Air Act or rules promulgated thereunder, including enforcement actions to require actions to reduce emissions from excessive emissions events.</content><note type="source"><p>Source Note: The provisions of this §101.223 adopted to be effective September 12, 2002, 27 TexReg 8499; amended to be effective January 8, 2004, 29 TexReg 118; amended to be effective June 23, 2005, 30 TexReg 3593; amended to be effective January 5, 2006, 30 TexReg 8884.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scF/s101.224"><num value="101.224">§101.224</num><heading>Temporary Exemptions During Drought Conditions</heading><content>Owners and operators of sources located in an area or region which has been classified by the National Weather Service as being in a severe or extreme drought condition under the Palmer Drought Severity Index for at least 30 days that are required to control emissions through the application or use of water may request a temporary exemption from any commission air quality rule, permit condition, permit representation, standard exemption condition, or commission order. This section does not allow for an exemption from any federal requirement.(1) The request must be submitted in writing to the Office of Permitting, Remediation, and Registration, Air Permits Division, and include at a minimum the following information:(A) the site-specific circumstances that prevent the continued or limited use of water;(B) the specific rule, permit condition, permit representation, standard exemption condition, or commission order from which an exemption is being requested; and(C) the reasonably available alternative control measures which will be undertaken to minimize emissions.(2) The executive director may authorize, by written permission, a temporary exemption of up to 120 days upon finding that:(A) the source or facility is located in an area or region which has been classified as severe or extreme for at least 30 days under the Palmer Drought Severity Index;(B) such an exemption is necessary to aid in the conservation of the area's water resources;(C) any additional emissions which may result from the exemption will not cause a significant health concern in the opinion of the executive director; and(D) the requesting owner and operator of the source will use reasonably available alternative control measures to minimize emissions during this time.(3) The executive director may specify alternative procedures or methods for controlling emissions when an exemption is granted under this section.(4) The executive director may issue one 60-day extension of an exemption authorized under this section. A commission order is required for any exemption which would extend beyond a total of 180 days and approval shall be based on the criteria contained in this section. The executive director shall notify the EPA of exemptions which will be considered for extension beyond 180 days. The executive director shall notify the EPA at least 30 days prior to commission consideration of such an extension.</content><note type="source"><p>Source Note: The provisions of this §101.224 adopted to be effective September 12, 2002, 27 TexReg 8499.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scF/s101.231"><num value="101.231">§101.231</num><heading>Petition for Variance</heading><content>Any person seeking a variance, amendment of a variance, or extension of a variance issued to that person shall file a petition on a form prepared by the commission. The form shall be furnished by the commission without charge upon request. In order to obtain a variance past the date by which compliance is to be achieved, a person must have demonstrated continuous and substantial progress toward compliance before the date of petition.</content><note type="source"><p>Source Note: The provisions of this §101.231 adopted to be effective September 12, 2002, 27 TexReg 8499.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scF/s101.232"><num value="101.232">§101.232</num><heading>Effect of Acceptance of Variance or Permit</heading><content>Acceptance of a variance or a permit constitutes an acknowledgment and agreement that the holder will comply with its terms, and with the rules, regulations, and orders of the commission adopted under the TCAA.</content><note type="source"><p>Source Note: The provisions of this §101.232 adopted to be effective September 12, 2002, 27 TexReg 8499.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scF/s101.233"><num value="101.233">§101.233</num><heading>Variance Transfers</heading><content>A variance or a permit is granted in person, and does not attach to the realty to which it relates. A variance cannot be transferred without prior notification to the commission. If a transfer of ownership of a source covered by a variance is contemplated by the holder of the variance, and the source and characteristics of the emissions will remain unchanged, upon notification, the executive director shall issue an endorsement to the variance reflecting the name of the new owner. Continuation of emissions by the new owner without prior notification to the commission makes the variance subject to forfeiture.</content><note type="source"><p>Source Note: The provisions of this §101.233 adopted to be effective September 12, 2002, 27 TexReg 8499.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c101/scH"><num value="H">SUBCHAPTER H</num><heading>EMISSIONS BANKING AND TRADING</heading><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.300"><num value="101.300">§101.300</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act or in §3.2 or §101.1 of this title (relating to Definitions), the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition, the following words and terms, when used in this division, have the following meanings, unless the context clearly indicates otherwise. (1) Activity--The amount of activity at a facility or mobile source measured in terms of production, use, raw materials input, vehicle miles traveled, or other similar units that have a direct correlation with the economic output and emission rate of the facility or mobile source. (2) Actual emissions--The total emissions during a selected time period, using the facility's or mobile source's actual daily operating hours, production rates, or types of materials processed, stored, or combusted during that selected time period. (3) Area source--Any facility included in the agency emissions inventory under the area source category. (4) Baseline emissions--The facility's emissions, in tons per year, before implementation of an emission reduction calculated as the lowest of the facility's historical adjusted emissions or state implementation plan emissions. (5) Certified--Any emission reduction that is determined to be creditable upon review and approval by the executive director. (6) Curtailment--A reduction in activity level at any facility or mobile source. (7) Emission credit--An emission reduction credit or mobile emission reduction credit. (8) Emission rate--The facility's rate of emissions per unit of activity. (9) Emission reduction--A reduction in actual emissions from a facility or mobile source. (10) Emission reduction credit--A certified emission reduction, expressed in tenths of a ton per year, that is created by eliminating future emissions and quantified during or before the period in which emission reductions are made from a facility. (11) Emission reduction strategy--The method implemented to reduce the facility's or mobile source's emissions beyond that required by state or federal law, regulation, or agreed order. (12) Facility--As defined in §116.10 of this title (relating to General Definitions). Original equipment and replacement-in-kind equipment that are the same or functionally equivalent are considered the same facility. For the purpose of generating an emission reduction credit at an area source, multiple emissions points with common characteristics may be grouped in order to be considered as a single unit equivalent to a facility as long as the total grouping has emissions equal to or greater than 0.1 tons per year (tpy), even if emission points within the group have emissions of less than 0.1 tpy.(13) Generator--The owner or operator of a facility or mobile source that creates an emission reduction. (14) Historical adjusted emissions--The emissions occurring before implementation of an emission reduction strategy and adjusted for any local, state, or federal requirement, calculated using the following equation. Attached Graphic(15) Mobile emission reduction credit--A certified emission reduction from a mobile source or group of mobile sources, expressed in tenths of a ton per year, that is created by eliminating future emissions and quantified during or before the period in which reductions are made from that mobile source or group of mobile sources. (16) Mobile source--A source included in the agency's emissions inventory under the mobile source category. (17) Mobile source baseline activity--The level of activity of a mobile source based on an estimate for each year for which the credits are to be generated. After the initial year, the annual estimates should reflect: (A) the change in the mobile source emissions to reflect any deterioration in the emission control performance of the participating source; (B) the change in the number of mobile sources resulting from normal retirement or attrition, and the replacement of retired mobile sources with newer and/or cleaner mobile sources; (C) the change in usage levels, hours of operation, or vehicle miles traveled in the participating population; and (D) the change in the expected useful life of the participating population. (18) Mobile source baseline emissions--The mobile source's actual emissions, in tons per year, occurring prior to a mobile emission reduction strategy calculated as the lowest of the historical adjusted emissions or state implementation plan emissions. (19) Mobile source baseline emission rate--The mobile source's rate of emissions per unit of mobile source baseline activity during the mobile source baseline emissions period. (20) Permanent--An emission reduction that is long-lasting and unchanging for the remaining life of the facility or mobile source. Such a time period must be enforceable. (21) Point source--A facility included in the agency's emissions inventory under the point source category.(22) Primarily operated--When the activity is at least 75% within a specific nonattainment area. (23) Projection-base year--The year of the emissions inventory used to project or forecast future-year emissions for modeling point sources in a state implementation plan revision. (24) Protocol--A replicable and workable method of estimating emission rate or activity level used to calculate the amount of emission reduction generated or credits required for facilities or mobile sources. (25) Quantifiable--An emission reduction that can be measured or estimated with confidence using replicable methodology. (26) Real reduction--A reduction in which actual emissions are reduced. Emissions reductions that result from any of the following are not considered a real reduction:(A) lowering the allowable emission limit in a permit without a physical change or change in method of operation; (B) shifting a vent gas stream or other pollution or waste stream to another site;(C) a mobile source that is not capable of being operated as intended; or(D) a change in an emissions factor or emissions calculation equation. (27) Shutdown--The permanent cessation of an activity producing emissions at a facility or mobile source. (28) Site--As defined in §122.10 of this title (relating to General Definitions). (29) State implementation plan--A plan that provides for attainment and maintenance of a primary or secondary national ambient air quality standard as adopted in 40 Code of Federal Regulations Part 52, Subpart SS. (30) State implementation plan (SIP) emissions--SIP emissions are determined as follows. (A) For point sources, SIP emissions are facility-specific values based on the emissions data in the state's annual emissions inventory (EI) for the year used to develop the projection-base year inventory for the modeling included in an attainment demonstration (AD) SIP revision, used for the attainment inventory for a maintenance plan SIP revision, or used in an EI SIP revision, as applicable under subparagraph (B)(i) - (iii) of this paragraph. For area and mobile sources, SIP emissions are calculated values based on actual operations during the latest triennial National Emissions Inventory (NEI) year used to support an AD SIP revision, used for the attainment inventory for a maintenance plan SIP revision, or used in an EI SIP revision, as applicable under subparagraph (B)(i) - (iii) of this paragraph. For point, area, and mobile sources located in a nonattainment area without an applicable SIP as determined under subparagraph (B)(i) - (iii) of this paragraph, SIP emissions are based on the year of the most recent NEI submitted to the United States Environmental Protection Agency (EPA) preceding that area's nonattainment designation for the current National Ambient Air Quality Standard (NAAQS).(B) The applicable SIP revision must be for the nonattainment area where the facility is located, or for mobile sources where the mobile source is primarily operated, and must be for the criteria pollutant, or include the precursor pollutant, for which the applicant is requesting credits. The applicable SIP revision is:(i) an AD SIP revision or a maintenance plan SIP revision, whichever was most recently submitted to the EPA for the current NAAQS; (ii) if the SIP revisions identified in clause (i) of this subparagraph have not been submitted to the EPA, an AD SIP revision or a maintenance plan SIP revision, whichever was most recently submitted to the EPA for an earlier NAAQS issued in the same averaging time and the same form as the current NAAQS; or (iii) if the SIP revisions identified in clauses (i) and (ii) of this subparagraph have not been submitted to the EPA, the most recent EI SIP revision submitted to the EPA. (C) The total amount of SIP emissions available for credit generation will be set for area, non-road mobile, and on-road mobile source categories. (i) Total creditable area source emissions are 75% of the total area source emissions excluding residential area sources in the applicable SIP revision.(ii) Total creditable non-road mobile source emissions are 75% of the total non-road mobile source emissions in the applicable SIP revision.(iii) Total creditable on-road mobile source emissions are 85% of the total on-road mobile source emissions in the applicable SIP revision.(D) The SIP emissions for a facility or mobile source may not exceed any applicable local, state, or federal requirement.(E) The year used to determine SIP emissions is as specified in subparagraph (A) of this paragraph, unless a different year is specifically identified otherwise by the commission in the most recent SIP revision adopted after December 31, 2017.(31) Strategic emissions--A facility's or mobile source's new allowable emission limit, in tons per year, following implementation of an emission reduction strategy. (32) Surplus--An emission reduction that is not otherwise required of a facility or mobile source by any applicable local, state, or federal requirement and has not been otherwise relied upon in the state implementation plan. (33) User--The owner or operator of a facility or mobile source that acquires and uses emission credits to meet a regulatory requirement, demonstrate compliance, or offset an emission increase.</content><note type="source"><p>Source Note: The provisions of this §101.300 adopted to be effective January 18, 2001, 26 TexReg 282; amended to be effective January 17, 2003, 28 TexReg 83; amended to be effective December 2, 2004, 29 TexReg 11038; amended to be effective June 25, 2015, 40 TexReg 3848; amended to be effective October 12, 2017, 42 TexReg 5441.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.301"><num value="101.301">§101.301</num><heading>Purpose</heading><content>The purpose of this division is to allow the owner or operator of a facility or mobile source to generate emission credits by reducing emissions beyond the level required by any applicable local, state, or federal requirement and to allow the owner or operator of a facility or mobile source to use these credits. Participation under this division is strictly voluntary.</content><note type="source"><p>Source Note: The provisions of this §101.301 adopted to be effective January 18, 2001, 26 TexReg 282; amended to be effective January 17, 2003, 28 TexReg 83; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.302"><num value="101.302">§101.302</num><heading>General Provisions</heading><content>(a) Applicable pollutants. (1) An emission credit may be generated from a reduction of a criteria pollutant, excluding lead, or a precursor of a criteria pollutant for which an area is designated nonattainment. (2) An emission credit generated from the reduction of one pollutant or precursor may not be used to meet the requirements for another pollutant or precursor, except as provided by §101.306(d) of this title (relating to Emission Credit Use). (b) Eligible generator categories. The following categories are eligible to generate emission credits: (1) point source facilities; (2) mobile sources; (3) any facility, including both point and area sources, or mobile source associated with actions by federal agencies under 40 Code of Federal Regulations Part 93, Subpart B, Determining Conformity of General Federal Actions to State or Federal Implementation Plans; and (4) area source facilities, including those comprised of multiple emission points as allowed under §101.300(12) of this title (relating to Definitions). Credit generation from grouped emission points cannot exceed the lower of the group's actual emissions in the state implementation plan (SIP) emissions year or the historical adjusted emissions. Facilities comprised of grouped emission points may include equipment that was not operational during the SIP emissions year or the historical adjusted emissions years as long as the emissions from the group were present during the SIP emissions year. Characteristics that may be considered to determine if emission points qualify for consideration as a single facility for the purposes of generating emission credits, include but are not limited to:(A) source classification codes;(B) primary standard industrial classification code;(C) location, origin of, characteristics of, controls on the emissions; and(D) other credit calculation-related characteristics, such as fuel, equipment type, emissions reduction strategy, and quantification protocol. (c) Ineligible generator categories. The following categories are not eligible to generate emission credits: (1) residential area sources;(2) on-road mobile sources that are not part of an industrial, commercial, nonprofit, institutional, or municipal/government fleet; and(3) mobile sources that are not primarily operated within a specific nonattainment area with the exception of marine and locomotive sources that use capture and control emissions reduction systems. (d) Emission credit requirements. (1) An emission reduction credit (ERC) is a certified emission reduction that: (A) must be enforceable, permanent, quantifiable, real, and surplus; (B) must be surplus at the time it is created, as well as when it is used; and (C) must occur after the state implementation plan (SIP) emissions year for the facility.(2) Mobile emission reduction credits (MERCs) are certified reductions that meet the following requirements: (A) reductions must be enforceable, permanent, quantifiable, real, and surplus; (B) the certified reduction must be surplus at the time it is created, as well as when it is used; (C) in order to become certified, the reduction must have occurred after the SIP emissions year; and(D) the reduction must be from a mobile source that operated during the SIP emissions year. (3) Emission reductions from a facility or mobile source that are certified as emission credits under this division cannot be recertified in whole or in part as credits under another division within this subchapter. (e) Protocol. (1) All generators or users of emission credits shall use a protocol that has been submitted by the executive director to the United States Environmental Protection Agency (EPA) for approval, if existing for the applicable facility or mobile source, to measure and calculate baseline emissions. If the generator or user wishes to deviate from a protocol submitted by the executive director, EPA approval is required before the protocol can be used. Protocols must be used as follows. (A) The owner or operator of a facility subject to the emission specifications under §§117.110, 117.310, 117.410, 117.1010, 117.1210, 117.1310, 117.2010, or 117.2110 of this title (relating to Emission Specifications for Attainment Demonstration; Emission Specifications for Eight-Hour Attainment Demonstration; and Emission Specifications) shall use the testing and monitoring methodologies required under Chapter 117 of this title (relating to Control of Air Pollution from Nitrogen Compounds) to show compliance with the emission specification for that pollutant. (B) The owner or operator of a facility subject to the requirements under Chapter 115 of this title (relating to Control of Air Pollution from Volatile Organic Compounds) shall use the testing and monitoring methodologies required under Chapter 115 of this title to show compliance with the applicable requirements. (C) Except as specified in subparagraphs (A) and (B) of this paragraph, the owner or operator of a facility subject to the requirements under Chapter 106 of this title (relating to Permits by Rule) or a permit issued under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) shall use the testing and monitoring methodologies required under Chapter 106 of this title or a permit issued under Chapter 116 of this title to demonstrate compliance with the applicable requirements. (D) The executive director may approve the use of a methodology approved by the EPA to quantify emissions from the same type of facility or mobile source. (E) Except as specified in subparagraph (D) of this paragraph, if the executive director has not submitted a protocol for the applicable facility or mobile source to the EPA for approval, the following requirements apply: (i) the amount of emission credits from a facility or mobile source, in tons per year, will be determined and certified based on quantification methodologies at least as stringent as the methods used to demonstrate compliance with any applicable requirements for the facility or mobile source; (ii) the generator shall collect relevant data sufficient to characterize the facility's or mobile source's emissions of the affected pollutant and the facility's or mobile source's activity level for all representative phases of operation in order to characterize the facility's or mobile source's baseline emissions; (iii) the owner or operator of a facility with a continuous emissions monitoring system or predictive emissions monitoring system in place shall use this data in quantifying emissions; (iv) the chosen quantification protocol must be made available for public comment for a period of 30 days and must be viewable on the commission's website; (v) the chosen quantification protocol and any comments received during the public comment period must be submitted to the EPA for a 45-day adequacy review; and (vi) quantification protocols may not be accepted for use with this division if the executive director receives a letter objecting to the use of the protocol from the EPA during the 45-day adequacy review or the EPA adopts disapproval of the protocol in the Federal Register. (2) If the monitoring and testing data specified in paragraph (1) of this subsection is missing or unavailable, the generator or user shall determine the facility's emissions for the period of time the data is missing or unavailable using the most conservative method for replacing the data and these listed methods in the following order: (A) continuous monitoring data; (B) periodic monitoring data; (C) testing data; (D) manufacturer's data; (E) EPA Compilation of Air Pollution Emission Factors (AP-42), September 2000; or (F) material balance. (3) When quantifying actual emissions in accordance with paragraph (2) of this subsection, the generator or user shall submit the justification for not using the methods in paragraph (1) of this subsection and submit the justification for the method used. (f) Credit certification. (1) The amount of emission credits in tons per year will be determined and certified to the nearest tenth of a ton per year. Credits will not be issued for a facility, fugitive emissions from aggregated facilities, or aggregated mobile sources that cannot generate at least 0.1 ton per year of credit after all adjustments are applied. Fugitive emissions or mobile source emissions aggregated to meet the requirement that emission reductions be certified for at least 0.1 ton per year must be represented on the same application and will have an application deadline and credit expiration date determined by the earliest emission reduction date among the aggregated sources. (2) The executive director shall review an application for certification to determine the credibility of the reductions. Each ERC or MERC certified will be assigned a certificate number. A new number will be assigned when an ERC or MERC is traded or partly used. Reductions determined to be creditable and in compliance with all other requirements of this division will be certified by the executive director. (3) The applicant will be notified in writing if the executive director denies the emission credit application. The applicant may submit a revised application in accordance with the requirements of this division. If a facility's or mobile source's actual emissions exceed any applicable local, state, or federal requirement, reductions of emissions exceeding the requirement may not be certified as emission credits. An application for certification of emission credit from reductions quantified under subsection (e)(1)(E) of this section may only be approved after the EPA's 45-day adequacy review of the protocol. (g) Credit application submission and conditions. (1) Beginning January 1, 2018, an application to certify credits must be submitted through the State of Texas Environmental Reporting System unless the applicant receives prior approval from the executive director for an alternative means of application submission. (2) As a condition for the certification of a credit, the executive director may specify monitoring, testing, recordkeeping, or other requirements through an Emissions Banking and Trading Certification of Emission Reductions Form (Form EBT-CERT), or other forms considered equivalent by the executive director.(3) The generator must comply with all conditions specified in a Form EBT-CERT, or other forms considered equivalent by the executive director, once the credit is certified.(h) Geographic scope. Except as provided in §101.305 of this title (relating to Emission Reductions Achieved Outside the United States), only emission reductions generated in nonattainment areas can be certified. An emission credit must be used in the nonattainment area in which it is generated unless the user has obtained prior written approval of the executive director and the EPA; and (1) a demonstration has been made and approved by the executive director and the EPA to show that the emission reductions achieved in another county or state provide an improvement to the air quality in the county of use; or (2) the emission credit was generated in a nonattainment area that has an equal or higher nonattainment classification than the nonattainment area of use, and a demonstration has been made and approved by the executive director and the EPA to show that the emissions from the nonattainment area where the emission credit is generated contribute to a violation of the national ambient air quality standard in the nonattainment area of use. (i) Recordkeeping. The generator shall maintain a copy of all notices and backup information submitted to the executive director and all records required or necessary to verify the certified emissions reduction for a minimum of five years. The user shall maintain a copy of all notices and backup information submitted to the executive director from the beginning of the use period and for at least five years after. The user shall make the records available upon request to representatives of the executive director, EPA, and any local enforcement agency. The records must include, but not necessarily be limited to: (1) the name, emission point number, and facility identification number of each facility or any other identifying number for each mobile source using emission credits; (2) the amount of emission credits being used by each facility or mobile source; and (3) the certificate number of emission credits used for each facility or mobile source.(j) Public information. All information submitted with notices, reports, and trades regarding the nature, quantity, and sales price of emissions associated with the use, generation, and transfer of an emission credit is public information and may not be submitted as confidential. Any claim of confidentiality for this type of information, or failure to submit all information, may result in the rejection of the emission credit application. All nonconfidential information will be made available to the public as soon as practicable. (k) Authorization to emit. An emission credit created under this division is a limited authorization to emit the pollutants identified in subsection (a) of this section, unless otherwise defined, in accordance with the provisions of this section, 42 United States Code, §§7401 et seq., and Texas Health and Safety Code, Chapter 382, as well as regulations promulgated thereunder. An emission credit does not constitute a property right. Nothing in this division may be construed to limit the authority of the commission or the EPA to terminate or limit such authorization. (l) Program participation. The executive director has the authority to prohibit a person from participating in emission credit trading either as a generator or user, if the executive director determines that the person has violated the requirements of the program or abused the privileges provided by the program. (m) Compliance burden. A user may not transfer their compliance burden and legal responsibilities to a third-party participant. A third-party participant may only act in an advisory capacity to the user. (n) Credit ownership. The owner of the initial emission credit shall be the owner or operator of the facility or mobile source creating the emission reduction. The executive director may approve a deviation from this subsection considering factors such as, but not limited to: (1) whether an entity other than the owner or operator of the facility or mobile source incurred the cost of the emission reduction strategy; or (2) whether the owner or operator of the facility or mobile source lacks the potential to generate 0.1 ton per year of credit after all adjustments are applied.</content><note type="source"><p>Source Note: The provisions of this §101.302 adopted to be effective January 17, 2003, 28 TexReg 83; amended to be effective December 2, 2004, 29 TexReg 11038; amended to be effective October 26, 2006, 31 TexReg 8684; amended to be effective August 16, 2007, 32 TexReg 4985; amended to be effective June 25, 2015, 40 TexReg 3848; amended to be effective October 12, 2017, 42 TexReg 5441.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.303"><num value="101.303">§101.303</num><heading>Emission Reduction Credit Generation and Certification</heading><content>(a) Emission reduction strategy. (1) An emission reduction credit (ERC) may be generated using one of the following strategies or any other method that is approved by the executive director: (A) the permanent shutdown of a facility that causes a loss of capability to produce emissions; (B) the installation and operation of pollution control equipment that reduces emissions below baseline emissions for the facility; (C) a change in a manufacturing process that reduces emissions below baseline emissions for the facility; (D) a permanent curtailment in production that reduces the facility's capability to produce emissions; or (E) pollution prevention projects that produce surplus emission reductions. (2) An ERC may not be generated from the following strategies: (A) reductions from the shifting of activity from one facility to another facility at the same site; (B) that portion of reductions funded through state or federal programs, unless specifically allowed under that program; (C) reductions from a facility without state implementation plan (SIP) emissions; or (D) reductions from the shutdown of specific types of inelastic area sources that are driven by population needs. The executive director shall maintain a public list of area source categories determined to be inelastic categories.(i) The list of inelastic area source categories will be made available to the public on the commission's website.(ii) Any person may submit a written petition requesting that the executive director add or remove a category from the list.(iii) Within 60 days of receiving a petition under clause (ii) of this subparagraph, the executive director shall prepare a draft revised list or propose denial of the petition by preparing a draft denial statement supporting denial of the petition.(iv) The executive director may on its own motion propose revisions to the list by preparing a draft revised list.(v) The executive director's draft revised list, or draft denial statement, under clauses (iii) and (iv) of this subparagraph shall be made available for public comment for 30 days.(vi) Within 30 days of the public comment period ending, the executive director shall issue a proposed final list or a proposed final denial statement for consideration and approval by the commission.(vii) The commission shall approve, modify, or deny the proposed revisions to the list of inelastic area sources categories made by the executive director under clauses (iii) and (iv) of this subparagraph.(viii) The commission shall approve, modify, or remand to the executive director for further consideration a recommendation to deny a petition submitted by the executive director under clause (iii) of this subparagraph.(ix) The shutdown of an area source category that falls into one of the categories on the list under clause (i) of this subparagraph is ineligible for emissions reduction credit generation. (b) ERC baseline emissions. (1) The baseline emissions may not exceed the facility's SIP emissions. (2) The activity and emission rate used to calculate the facility's historical adjusted emissions must be determined from the same two consecutive calendar years. (A) For point sources, the historical adjusted emissions must be based on two consecutive calendar years from the ten consecutive years immediately before the emissions reduction is achieved.(B) For area sources, the historical adjusted emissions must be based on two consecutive years from the five consecutive years immediately before the emissions reduction is achieved unless detailed operational records are available for more than five years. The historical adjusted emissions may be determined from two consecutive calendar years up to six to ten consecutive years immediately before the emissions reduction is achieved when detailed operational records are available for those years. (3) For a facility in existence less than 24 months or not having two complete calendar years of activity data, a shorter period of not less than 12 months may be considered by the executive director. (c) ERC calculation. (1) The quantity of ERCs is determined by subtracting the facility's strategic emissions from the facility's baseline emissions, as calculated in the following equation. Attached Graphic(2) For area sources generating credits from the permanent shutdown of a facility, the amount of ERCs calculated will be reduced by 15% or 0.1 ton per year, whichever is greater. (3) For an area source facility, the amount of ERCs calculated will be adjusted to account for the quality of the data used to quantify the emissions. The adjustment will be:(A) no reduction for the same type of records that are required to be maintained for a point source facility; or (B) 15% or 0.1 ton per year, whichever is greater, reduction for records supporting alternative methods approved according to §101.302(e)(1)(E) of this title (relating to General Provisions). (4) If the facility is subject to both of the adjustments in paragraphs (2) and (3) of this subsection, the total combined adjustment to the amount of ERCs issued will be a reduction of 20% or 0.1 ton per year, whichever is greater.(d) ERC certification. (1) The owner or operator of a facility with potential ERCs shall submit an application form specified by the executive director and signed by an authorized account representative as specified in subparagraphs (A) - (D) of this paragraph. (A) Applications will be reviewed to determine the credibility of the reductions. Reductions determined to be creditable will be certified by the executive director and an ERC will be issued to the owner. (B) The application for ERCs must be submitted no more than two years after the facility's emissions reduction date, except as provided by subparagraphs (C) and (D) of this paragraph.(C) The application for ERCs from all facilities affected by a complete site shutdown of an oil and gas production site may be submitted no more than two years after the site's production well is plugged in accordance with requirements of the Railroad Commission of Texas if the plugging is completed within one year of final production being reported to the Railroad Commission of Texas. Emission credits certified under this exception will be available for use for 72 months from the date well plugging is completed in lieu of the provisions outlined in §101.309(b)(2) of this title (relating to Emission Credit Banking and Trading). (D) For an area source facility, the application for ERCs may be submitted as follows.(i) For emission reductions that occurred after June 1, 2013 and prior to January 1, 2015, the application for ERCs must be submitted by December 31, 2017.(ii) For emissions reductions that occurred between January 1, 2015 and January 1, 2017, the application for ERCs may be submitted up to three years after the facility's emissions reduction date. (iii) The application deadline exceptions specified in clauses (i) and (ii) of this subparagraph no longer apply after December 31, 2019.(iv) Emission credits certified under the application deadline exceptions specified in clauses (i) and (ii) of this subparagraph or certified for area source emission reductions occurring before and included on an application submitted, but not acted on, before January 1, 2017 shall be available for use for 72 months from the date of the emission reduction in lieu of the provisions outlined in §101.309(b)(2) of this title. (2) ERCs must be quantified in accordance with §101.302(e) of this title. The executive director shall have the authority to inspect and request information to assure that the emissions reductions have actually been achieved. (3) An application for ERCs must include, but is not limited to, a completed application form specified by the executive director signed by an authorized representative of the applicant along with the following information for each pollutant reduced at each applicable facility: (A) a complete description of the emission reduction strategy; (B) the amount of ERCs generated; (C) for volatile organic compound reductions, a list of the specific compounds reduced; (D) documentation, including records for approved or approvable methods to quantify emissions, supporting the activity, emission rate, historical adjusted emissions, SIP emissions, baseline emissions, and strategic emissions; (E) for point sources, emissions inventory data for the years used to determine the SIP emissions and historical adjusted emissions; (F) the most stringent emission rate and the most stringent emission level, considering all applicable local, state, and federal requirements; (G) a complete description of the protocol used to calculate the emission reduction generated; and (H) the actual calculations performed by the generator to determine the amount of ERCs generated. (4) ERCs will be made enforceable by one of the following methods: (A) amending or altering a new source review permit to reflect the emission reduction and set a new maximum allowable emission limit; (B) voiding a new source review permit when a facility has been shut down; or (C) for any facility without a new source review permit that is otherwise authorized by commission rule, certifying the emission reduction and the new maximum emission limit on one or more forms specified by the executive director, including a Certification of Emission Limits (Form APD-CERT) submitted through e-permitting and an Emissions Banking and Trading Certification of Emission Reductions Form (Form EBT-CERT), or other forms considered equivalent by the executive director.</content><note type="source"><p>Source Note: The provisions of this §101.303 adopted to be effective January 17, 2003, 28 TexReg 83; amended to be effective December 2, 2004, 29 TexReg 11038; amended to be effective June 25, 2015, 40 TexReg 3848; amended to be effective October 12, 2017, 42 TexReg 5441.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.304"><num value="101.304">§101.304</num><heading>Mobile Emission Reduction Credit Generation and Certification</heading><content>(a) Methods of generation.(1) Mobile emission reduction credits (MERC) may be generated by any mobile source emission reduction strategy that creates actual mobile source emission reductions under these rules and subject to the approval of the executive director.(2) MERCs may not be generated from the following strategies:(A) that portion of reductions funded through a state or federal program, unless specifically allowed under that program;(B) through the transfer of emissions from one mobile source to another mobile source within the same nonattainment area and under common ownership or control;(C) reduction strategies resulting in secondary emissions increases that exceed limits established under state or federal rules or regulations; or(D) the shutdown or replacement of a mobile source unless that source is rendered permanently inoperable or permanently removed from North America.(b) MERC baseline emissions.(1) Mobile source baseline emissions shall be calculated with either measured emissions of an appropriately sized sample of the participating mobile sources using a United States Environmental Protection Agency (EPA)-approved test procedure, or by estimating emissions of the participating mobile sources using the most recent edition of the EPA on-road or non-road mobile emissions factor models or other model as applicable.(2) The historical adjusted emissions and state implementation plan emissions may only include actual emissions that occurred when the mobile source was operating inside a specific nonattainment area.(3) The activity and emissions rate data used to calculate the mobile source's historical adjusted emissions must be determined from two consecutive calendar years from the five consecutive years immediately before the emissions reduction is achieved unless detailed operational records are available for more than five years. If these detailed operational records are available and do not demonstrate decreasing use due to vehicle age or inoperability, the historical adjusted emissions for a mobile source may be determined from two consecutive calendar years up to six to ten consecutive years immediately before the emissions reduction is achieved.(4) For a mobile source in existence less than 24 months or not having two complete calendar years of activity data, a shorter period of not less than 12 months may be approved by the executive director.(5) Baseline emissions for quantifying MERCs should include, but not be limited to, the following information and data as appropriate:(A) the emission standard to which the mobile source is subject or the emission performance standard to which the mobile source is certified;(B) the estimated or measured in-use emissions levels per unit of use from all significant mobile source emissions sources;(C) the number of mobile sources in the participating group;(D) the type or types of mobile sources by model year;(E) the actual or projected activity level, hours of operation, or miles traveled, by type and model year; and(F) the projected remaining useful life of the participating group of mobile sources.(c) MERC calculation. The quantity of MERCs must be calculated from the difference between the mobile source baseline emissions and the strategic emissions. The strategic emissions must be based on the best estimate of the actual in-use emissions of the modified or substitute on-road or non-road vehicles or transportation system that will occur when the mobile source is operating inside a specific nonattainment area. Any estimate of a strategic emissions level based on an assumption of reduced consumer service or transportation service would not be allowed without the support of a convincing analytical justification of the assumption.(1) For mobile sources generating credits from a shutdown, the amount of MERCs generated will be reduced by 15% or 0.1 ton per year, whichever is greater.(2) The amount of MERCs generated will be adjusted to account for the quality of the data used to quantify the emissions. The reduction will be 15% or 0.1 ton per year, whichever is greater, for records supporting alternative methods approved according to §101.302(e)(1)(E) of this title (relating to General Provisions).(3) If the mobile source is subject to an adjustment based on both the reduction strategy being a shutdown and the quality of the data used to quantify the emissions, the total combined reduction to the amount of MERCs generated will be 20% or 0.1 ton per year, whichever is greater.(d) Emission offsets. Mobile source reduction strategies that reduce emissions in one criteria pollutant or precursor for which an area is designated nonattainment, yet result in an emissions increase of another criteria pollutant or precursor for which that same area is nonattainment and from the same mobile source, must be required to offset the resulting increase at a 1:1 ratio with ERCs or MERCs.(e) MERC certification.(1) The generator of the reduction from a mobile source with potential MERCs shall submit an application form specified by the executive director and signed by an authorized account representative.(A) Applications will be reviewed to determine the credibility of the reductions. Reductions determined to be creditable will be certified by the executive director and a MERC will be issued to the owner of the mobile source except as specified in §101.302(n) of this title.(B) The application for MERCs must be submitted no more than two years after the date of the emissions reduction, except as provided by subparagraph (C) of this paragraph.(C) For a mobile source, the application for MERCs may be submitted as follows.(i) For emission reductions that occurred after June 1, 2013 and prior to January 1, 2015, the application for MERCs must be submitted by December 31, 2017.(ii) For emissions reductions that occurred between January 1, 2015 and January 1, 2017, the application for MERCs may be submitted up to three years after the date of the emissions reduction.(iii) The application deadline exceptions specified in clauses (i) and (ii) of this subparagraph no longer apply after December 31, 2019.(iv) Emission credits certified under the application deadline exceptions specified in clauses (i) and (ii) of this subparagraph or certified for mobile source emission reductions occurring before and included on an application submitted, but not acted on, before January 1, 2017 shall be available for use for 72 months from the date of the emission reduction in lieu of the provisions outlined in §101.309(b)(2) of this title (relating to Emission Credit Banking and Trading).(2) MERCs will be determined and certified in accordance with §101.302(e) of this title using:(A) EPA methodologies, when available;(B) actual monitoring results, when available;(C) calculations using the most current EPA mobile emissions factor model or other model as applicable; or(D) calculations using creditable emission reduction measurement or estimation methodologies that satisfactorily address the analytical uncertainties of mobile source emissions reduction strategies.(3) The expected remaining useful life of the mobile source shall be determined based on the assumptions used in the models in the applicable state implementation plan (SIP) revision or on a case-by-case basis approved by the executive director when a type of mobile source is not reflected in these models. Except as provided in paragraph (4) of this subsection, the amount of MERCs certified for a given emissions reduction will be determined by the emissions reduction for the expected remaining useful life of the mobile source(s), annualized over 25 years.(4) The requirement to consider the expected remaining useful life of the mobile source and to annualize the emissions reduction over 25 years, as described in paragraph (3) of this subsection, does not apply if a capture and control system is used to reduce mobile source emissions. Instead, the MERC calculation will include the following.(A) The strategic emissions used in the MERC calculation must include the mobile source emissions that are not captured by the capture and control system. In addition, the strategic emissions must also include any emissions that are not controlled by the system after capture and any emissions caused by or as a result of operating the system.(B) The initial owner of the MERCs is the owner or operator of the capture and control system.(5) An application for MERCs must include, but is not limited to, a form specified by the executive director that is signed by an authorized account representative, along with the following information for each pollutant reduced by each applicable mobile source:(A) the date of the reduction;(B) a complete description of the generation strategy;(C) the amount of emission credits generated;(D) documentation, including records for approved or approvable methods to quantify emissions, supporting the mobile source baseline activity, mobile source baseline emission rate, historical adjusted emissions, SIP emissions, mobile source baseline emissions, and the mobile source strategy emissions;(E) a complete description of the protocol used to calculate the emission reduction generated;(F) the actual calculations performed by the generator to determine the amount of emission credits generated; and(G) a demonstration that the reductions are surplus to all local, state, and federal rules and to emission modeled in the SIP.(6) MERCs will be made enforceable with an Emissions Banking and Trading Certification Form (Form EBT-CERT), or equivalent form approved by the executive director, that may contain special conditions including, but not limited to:(A) written certification and photographs for mobile sources that are made permanently inoperable for replacement or shutdown;(B) where applicable, a certified or duplicate Texas Nonrepairable Vehicle Title for mobile sources that are made permanently inoperable for replacement or shutdown;(C) a bill of sale and bill of lading for mobile sources that are permanently removed from North America for replacement or shutdown and any additional information required by the executive director; and(D) a new maximum allowable mobile source emission limit.</content><note type="source"><p>Source Note: The provisions of this §101.304 adopted to be effective January 17, 2003, 28 TexReg 83; amended to be effective December 2, 2004, 29 TexReg 11038; amended to be effective October 12, 2017, 42 TexReg 5441.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.305"><num value="101.305">§101.305</num><heading>Emission Reductions Achieved Outside the United States</heading><content>(a) A facility may use reductions achieved outside the United States of criteria pollutants or precursors of criteria pollutants if the facility meets the requirements of subsection (c) of this section.(b) A facility may use reductions achieved outside the United States of criteria pollutants or precursors of criteria pollutants and substitute these reductions for reductions in other criteria pollutants or precursors of criteria pollutants if the facility meets the requirements of subsection (c) of this section; and(1) the reduction is substituted for the reduction of another criteria pollutant and the substitution results in a greater health benefit and is of equal or greater benefit to the overall air quality of the area; or(2) a reduction of an air contaminant for which the area in which the facility is located has been designated as nonattainment or which leads to the formation of a criteria pollutant for which an area has been designated as nonattainment is substituted for any air contaminant for which the area has been designated as nonattainment or leads to the formation of any criteria pollutant for which the area has been designated as nonattainment.(c) The use of reductions outside the United States must be approved by the executive director and the United States Environmental Protection Agency (EPA), and the user of the emission reduction must:(1) demonstrate to the executive director and EPA that the reduction is real, permanent, enforceable, quantifiable, and surplus to any applicable Mexican, federal, state, or local law;(2) demonstrate that the use of the reduction does not cause localized health impacts, as determined by the executive director and EPA;(3) submit all supporting information for calculations and modeling, and any additional information requested by the executive director and EPA; and(4) be located within 100 kilometers of the Texas - Mexico border.(d) This section does not apply to reductions in emissions of lead.</content><note type="source"><p>Source Note: The provisions of this §101.305 adopted to be effective October 26, 2006, 31 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.306"><num value="101.306">§101.306</num><heading>Emission Credit Use</heading><content>(a) Uses for emission credits. Unless precluded by a commission order or a condition or conditions within an authorization under the same commission account number, emission credits may be used as the following:(1) offsets for a new source, as defined in §101.1 of this title (relating to Definitions), or major modification to an existing source;(2) mitigation offsets for action by federal agencies under 40 Code of Federal Regulations Part 93, Subpart B, Determining Conformity of General Federal Actions to State or Federal Implementation Plans;(3) an alternative means of compliance with volatile organic compound and nitrogen oxides reduction requirements to the extent allowed in Chapters 115 and 117 of this title (relating to Control of Air Pollution from Volatile Organic Compounds; and Control of Air Pollution from Nitrogen Compounds);(4) reductions certified as emission credits may be used in netting by the original applicant, if not used, sold, reserved for use, or otherwise relied upon, as provided by Chapter 116, Subchapter B of this title (relating to New Source Review Permits); or(5) compliance with other requirements as allowed in any applicable local, state, and federal requirement.(b) Credit use calculation.(1) The number of emission credits needed by the user for offsets shall be determined as provided by Chapter 116, Subchapter B of this title.(2) For emission credits used in compliance with Chapter 115 or 117 of this title, the number of emission credits needed should be determined according to the following equation plus an additional 10% to be retired as an environmental contribution.Attached Graphic(3) For emission credits used to comply with §§117.123, 117.320, 117.323, 117.423, 117.1020, or 117.1220 of this title (relating to Source Cap; and System Cap), the number of emission credits needed for increasing the 30-day rolling average emission cap or maximum daily cap should be determined according to the following equation plus an additional 10% to be retired as an environmental contribution.Attached Graphic(4) Emission credits used for compliance with any other applicable program should be determined in accordance with the requirements of that program and must contain at least 10% extra to be retired as an environmental contribution, unless otherwise specified by that program.(c) Notice of intent to use emission credits.(1) The executive director will not accept an application to use emission credits before the emission credit is available in the compliance account for the site where it will be used. If the emission credit will be used for offsets, the executive director will not accept the emission credit application before the applicable permit application is administratively complete.(A) The user shall submit a completed application at least 90 days before the start of operation for an emission credit used as offsets in a permit in accordance with Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification).(B) The user shall submit a completed application at least 90 days before the planned use of an emission credit for compliance with the requirements of Chapter 115 or 117 of this title or other programs.(C) If the executive director approves the emission credit use, the date the application is submitted will be considered the date the emission credit is used.(2) If the executive director denies the facility or mobile source's use of emission credits, any affected person may file a motion to overturn within 60 days of the denial. Regardless of the applicability provisions of §50.131(c)(5) of this title (relating to Purpose and Applicability), the requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) shall apply. Only an affected person may file a motion to overturn.(d) Inter-pollutant use of emission credits. With prior approval from the executive director and the United States Environmental Protection Agency, a nitrogen oxides or volatile organic compound emissions credit may be used to meet the offset requirements for the other ozone precursor if photochemical modeling demonstrates that the overall air quality and the regulatory design value in the nonattainment area of use will not be adversely affected by the substitution.</content><note type="source"><p>Source Note: The provisions of this §101.306 adopted to be effective January 17, 2003, 28 TexReg 83; amended to be effective October 26, 2006, 31 TexReg 8684; amended to be effective August 16, 2007, 32 TexReg 4985; amended to be effective June 25, 2015, 40 TexReg 3848; amended to be effective October 12, 2017, 42 TexReg 5441; amended to be effective May 14, 2020, 45 Texeg 3091.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.309"><num value="101.309">§101.309</num><heading>Emission Credit Banking and Trading</heading><content>(a) The credit registry. All emission credit generators, users, and holders will be included in the commission's credit registry.(1) All notices of generation, use, and transfer will be posted to the credit registry.(2) The credit registry will assign a unique number to each certificate which will include the amount of emission reductions generated.(3) The credit registry will maintain a listing of all credits available for each ozone nonattainment area.(b) Life of an emission credit.(1) If an emission credit is used before its expiration date, the emission credit is effective for the life of the applicable user facility or mobile source.(2) Emission credits certified as part of an administratively complete application received after January 2, 2001 shall be available for use for 60 months from the date of the emission reduction.(3) Notwithstanding paragraph (2) of this subsection, the executive director may invalidate a certificate or portion of a certificate if local, state, or federal regulatory changes occur after the certification of the emission credit which would or would have affected the generating facility or mobile source.(c) Creditability review of emission credits. Emission credits may be reviewed for creditability at any time during their banked life to ensure the reductions generating the emission credit are surplus to all current local, state, and federal requirements that would have affected the generating facility or mobile source.(1) A request for a creditability review may be made by any interested party through the submittal of a completed application form specified by the executive director.(2) If a creditability review identifies a regulatory change invalidating a certificate or portion of a certificate, the executive director shall void the emission credit certificate and, issue a new certificate with a unique number to the certificate owner in the amount of remaining surplus credit.(d) Trading. Emission credits are freely transferable in whole or in part, and may be traded or sold to a new owner any time before the expiration date of the emission credit in accordance with the following.(1) Before the transfer, the seller shall submit a completed application form specified by the executive director.(2) The executive director will issue a new certificate number to the purchaser reflecting the emission credits purchased, and a new certificate number to the seller reflecting any remaining emission credits available to the original owner. A trade is considered final only after the executive director grants approval of the transaction.(3) The trading of emission credits may be discontinued by the executive director in whole or in part and in any manner, with commission approval, as a remedy for problems resulting from trading in a localized area of concern.(e) Emission credit voidance. Emission credits may be voided from the credit registry by the owner at any time prior to the expiration date of the credit and may be held by the owner. Reductions certified as emission credits may still be used by the original owner as an emission reduction for netting purposes after the emission credits have expired, as provided by Chapter 116, Subchapter B of this title (relating to New Source Review Permits).</content><note type="source"><p>Source Note: The provisions of this §101.309 adopted to be effective January 17, 2003, 28 TexReg 83; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.311"><num value="101.311">§101.311</num><heading>Program Audits and Reports</heading><content>(a) No later than three years after the effective date of this division, and every three years thereafter, the executive director will audit this program.(1) The audit will evaluate the timing of credit generation and use, the impact of the program on the state's attainment demonstration and the emissions of hazardous air pollutants, the availability and cost of credits, compliance by the participants, and any other elements the executive director may choose to include.(2) The executive director will recommend measures to remedy any problems identified in the audit. The trading of emission credits may be discontinued by the executive director in part or in whole and in any manner, with commission approval, as a remedy for problems identified in the program audit.(3) The audit data and results will be completed and submitted to the United States Environmental Protection Agency (EPA) and made available for public inspection within six months of the date the audit begins.(b) No later than February 1 of each calendar year, the executive director shall develop and make available to the general public and EPA a report that includes:(1) the amount of emission credits generated under this division within each nonattainment area;(2) the amount of emission credits used under this division within each nonattainment area; and(3) a summary of all trades completed under this division.</content><note type="source"><p>Source Note: The provisions of this §101.311 adopted to be effective January 17, 2003, 28 TexReg 83; amended to be effective December 2, 2004, 29 TexReg 11038.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.330"><num value="101.330">§101.330</num><heading>Definitions</heading><content>The following words and terms, when used in this division, shall have the following meanings, unless the context clearly indicates otherwise. (1) Allowance--The authorization to emit one ton of nitrogen oxides (NOx) or sulfur dioxide (SO 2) during a control period. (2) Authorized account representative--The responsible person who is authorized, in writing, to transfer and otherwise manage allowances. (3) Banked allowance--An allowance which is not used to reconcile emissions in the designated year of allocation, but which is carried forward into future years and noted in the compliance or broker account as "banked." (4) Broker--A person not required to participate in the requirements of this division who opens an account under this division for the purpose of banking and trading emissions allowances. (5) Broker account--The account where allowances held by a broker are recorded. Allowances held in a broker account may not be used to satisfy compliance requirements for this division. (6) Coal--All solid fuels classified as anthracite, bituminous, subbituminous, or lignite by the American Society for Testing and Materials Designation ASTM D388 92 ''Standard Classification of Coals by Rank'' (as incorporated by reference in Title 40 Code of Federal Regulations, §72.13 (effective June 25, 1999)). (7) Coal-fired--The combustion of fuel consisting of coal as defined in paragraph (6) of this section or any coal-derived fuel (except coal-derived gaseous fuels with a sulfur content no greater than natural gas), alone or in combination with any other fuel. The definition is independent of the percentage of coal or coal-derived fuel consumed during any control period. (8) Compliance account--The account where allowances held by an EGF or multiple EGFs are recorded for the purposes of meeting the requirements of this division and Chapter 116, Subchapter I of this title (relating to Electric Generating Facility Permits). EGFs not under common ownership or control may have separate compliance accounts. (9) Control period--The 12-month period beginning May 1 of each year and ending April 30 of the following year. Control periods begin May 1, 2003. (10) East Texas Region--All counties traversed by or east of Interstate Highway 35 north of San Antonio or traversed by or east of Interstate Highway 37 south of San Antonio, and also including Bexar, Bosque, Coryell, Hood, Parker, Somervell, and Wise Counties. (11) Electing EGF--An electric generating facility permitted under Chapter 116, Subchapter B of this title (relating to New Source Review Permits) which is not subject to the requirements of Texas Utility Code, §39.264 and elects to comply with Chapter 116, Subchapter I of this title (relating to Electric Generating Facility Permits). (12) Electric generating facility (EGF)--A facility that generates electric energy for compensation and is owned or operated by a person in this state, including a municipal corporation, electric cooperative, or river authority. (13) El Paso Region--All of El Paso County, Ciudad Juarez, Mexico, and Sunland Park, New Mexico. (14) Grandfathered EGF--A facility that is not subject to the requirement to obtain a permit under TCAA, §382.0518(g), and that generates electric energy for compensation and is owned or operated by a person in this state, including a municipal corporation, electric cooperative, or river authority. (15) Heat input--The heat derived from the combustion of any fuel at an EGF. Heat input does not include the heat derived from reheated combustion air, recirculated flue gas, or exhaust from other sources. (16) NOx allowance--An authorization to emit is valid only for the purposes of meeting the requirements of this division and Chapter 116, Subchapter I of this title. (17) Person--For the purpose of initial issuance of permits under Chapter 116, Subchapter I of this title, and for the issuance of allowances under this division, a person includes an individual, a partnership of two or more persons having a joint or common interest, a mutual or cooperative association, and a corporation, but does not include an electric cooperative. (18) SO2 allowance--An authorization to emit SO2 valid only for the purposes for meeting the requirements of this division and Chapter 116, Subchapter I of this title. (19) West Texas Region--All counties not contained in the East Texas Region or El Paso Region.</content><note type="source"><p>Source Note: The provisions of this §101.330 adopted to be effective January 11, 2000, 25 TexReg 128.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.331"><num value="101.331">§101.331</num><heading>Applicability</heading><content>This division applies only to the following:(1) electric generating facilities permitted under Chapter 116, Subchapter I of this title (relating to Electric Generating Facility Permits); and(2) brokers.</content><note type="source"><p>Source Note: The provisions of this §101.331 adopted to be effective January 11, 2000, 25 TexReg 128.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.332"><num value="101.332">§101.332</num><heading>General Provisions</heading><content>(a) Allowances are valid only for the purposes of meeting the requirements of this division and for meeting the requirements of Chapter 116, Subchapter I of this title (relating to Electric Generating Facility Permits), and cannot be used to meet or exceed the limitations of any annual emission limitation authorized under Chapter 116, Subchapter B of this title (relating to New Source Review Permits) or any applicable rule or law.(b) On June 1 after every control period, a grandfathered or electing electric generating facility (EGF) shall hold a quantity of allowances in its compliance account that is equal to or greater than the total emissions of that air contaminant emitted during the prior control period. Compliance with the allowance system will begin with the control period beginning May 1, 2003.(c) Emission reductions used to satisfy the requirements of the Emissions Banking and Trading of Allowances (EBTA) program cannot be used to generate emission reduction credits or discrete emission reduction credits.(d) Allowances cannot be used for netting requirements to avoid the applicability of federal and state new source review (NSR) requirements.(e) Allowances cannot be used to satisfy offset requirements for new or modified sources subject to federal nonattainment NSR requirements.(f) An allowance does not constitute a security or a property right.(g) All allowances will be allocated, transferred, or used as whole allowances. To determine the number of whole allowances, the number of allowances will be rounded down for decimals less than 0.50 and rounded up for decimals of 0.50 or greater.(h) One compliance account shall be used for multiple EGFs permitted under Chapter 116, Subchapter I of this title located at the same property and under common ownership or control.</content><note type="source"><p>Source Note: The provisions of this §101.332 adopted to be effective January 11, 2000, 25 TexReg 128.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.333"><num value="101.333">§101.333</num><heading>Allocation of Allowances</heading><content>Allowances will be allocated according to the requirements of this section.(1) Except as provided in paragraphs (2) and (3) of this section, allowances will be calculated for grandfathered electric generating facilities (EGF) using the following equation: Attached Graphic(A) In the East Texas Region: (i) 0.14 pound nitrogen oxides (NOx ) per MMBtu; (ii) 1.38 pounds sulfur dioxide (SO2 ) per MMBtu only for coal-fired grandfathered EGFs. (B) In the West Texas and El Paso Regions, 0.195 pounds NOx per MMBtu. (2) For electing EGFs, the amount of allowances is equal to emissions as listed in the 1997 Emissions Scorecard from EPA's Acid Rain Program, or if not listed in the 1997 Emissions Scorecard, by a method approved by the executive director, consistent with the emission reduction requirements of this division; and in both cases, shall not exceed any of the following: (A) any annual emission limitation authorized under Chapter 116, Subchapter B of this title (relating to New Source Review Permits); (B) an applicable state or federal requirement. (3) The commission may invalidate any allowances allocated to an electing EGF that authorize emissions in excess of applicable state or federal requirements. (4) If emissions of NOx or, if applicable, SO2, exceed the amount of allowances for a given control period, allowances for the next control period will be reduced in an amount equal to the emissions exceeding the allowances in the compliance account. (5) Allowances will be allocated: (A) initially, by: (i) January 1, 2000, for grandfathered EGFs; (ii) January 1, 2001, for electing EGFs; and municipal corporations, electric cooperatives, and river authorities that choose to obtain a permit under Chapter 116, Subchapter I of this title (relating to Electric Generating Facility Permits) for any grandfathered or electing EGFs previously exempted under §116.910(d) of this title (relating to Applicability); (B) subsequently, by May 1 of each year, beginning in 2004. (C) allowances will be allocated: (i) initially by commission order for all grandfathered and electing EGFs; (ii) notwithstanding clause (iii) of this subparagraph, at the beginning of each control period, the commission will deposit the same amount of allowances into each grandfathered or electing EGF's compliance account; (iii) for electing EGFs, the annual deposit for any control period may be adjusted to reflect new state or federal requirements. (6) Allowances may be deducted from compliance accounts following the review of trading reports required under §101.336(b) of this title (relating to Emission Monitoring, Compliance, Demonstration, and Reporting.) (7) The commission shall maintain a registry of the allowances in each compliance account. For each transfer, the registry shall include the price paid per allowance. The registry shall not contain proprietary information.</content><note type="source"><p>Source Note: The provisions of this §101.333 adopted to be effective January 11, 2000, 25 TexReg 128; amended to be effective September 4, 2000, 25 TexReg 8649.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.334"><num value="101.334">§101.334</num><heading>Allowance Deductions</heading><content>Allowances will be deducted from a grandfathered or electing electric generating facility's (EGF) compliance account for a control period based upon the following. (1) The following will have deducted from their compliance accounts allowances equal to the number of tons of air contaminant emitted during the control period as reported in compliance with §101.336 (relating to Emission Monitoring, Compliance Demonstration, and Reporting. (A) grandfathered EGFs; and (B) electing EGFs whose heat input for the control period is equal to or greater than its heat input for 1997; (C) electing EGFs whose heat input for the control period is less than its heat input for 1997 where the reduced utilization or shutdown has been replaced by another EGF permitted under Chapter 116, Subchapter I of this title (relating to Electric Generating Facility Permits). (2) For electing EGFs whose heat input for the control period is less than the heat input for 1997 and whose reduced utilization or shutdown has not been replaced by another EGF, allowances will be deducted from the compliance account according to the following equation: Attached Graphic(3) For electing EGFs whose heat input for the control period is less than the heat input for 1997 and whose reduced utilization or shutdown has been replaced by another EGF not permitted under Chapter 116, Subchapter I of this title, allowances will be deducted from the compliance account according to the following equation: Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §101.334 adopted to be effective January 11, 2000, 25 TexReg 128.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.335"><num value="101.335">§101.335</num><heading>Allowance Banking and Trading</heading><content>(a) Allowances not used for compliance during a control period may be banked for use in subsequent control periods. Allowances may only be used for the control period for which they were allocated or subsequent control periods, and may only be used within the same region where they were originally allocated.(b) Allowances may be traded at any time during the control period.(1) Only authorized account representatives may trade allowances.(2) Notification of trades must occur within 30 days after the trade.(c) Allowance trades are prohibited prior to May 1, 2003.(d) Traded allowances held in compliance accounts must have originated from electric generating facilities in the same region.(e) Allowances may be held only in compliance accounts for use by EGFs located in the region in which the allowances were originally allocated or in broker accounts.</content><note type="source"><p>Source Note: The provisions of this §101.335 adopted to be effective January 11, 2000, 25 TexReg 128.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.336"><num value="101.336">§101.336</num><heading>Emission Monitoring, Compliance Demonstration, and Reporting</heading><content>(a) Emission monitoring and reporting shall be conducted in accordance with §116.914 of this title (relating to Emissions Monitoring and Reporting Requirements).(b) For each control period, grandfathered or electing electric generating facilities (EGF), must submit a report to the commission by June 30 of each year detailing the following:(1) the amount of emissions of each allocated air contaminant during the preceding control period.(2) a summary of all final trades for the preceding control period.</content><note type="source"><p>Source Note: The provisions of this §101.336 adopted to be effective January 11, 2000, 25 TexReg 128.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.337"><num value="101.337">§101.337</num><heading>El Paso Region</heading><content>(a) A grandfathered or electing electric generating facility (EGF) in the El Paso Region may meet the emissions allowances by using credits from emissions reductions achieved in the City of Juarez, United States of Mexico and from EGFs located in Sunland Park, New Mexico. Emission reductions under this section must meet the following criteria.(1) The emission reduction must be:(A) enforceable by the commission;(B) permanent, meaning that the emission reduction is unchanging for the remaining life of the source;(C) quantifiable, so that the emission reduction can be measured or estimated with confidence using replicable techniques;(D) surplus, such that the emission reduction is not otherwise required of a facility by a state or federal law, regulation, or agreed order; and(E) a real reduction in which actual emissions are reduced.(2) The emission reduction must be reviewed and approved by the executive director prior to converting the credits into allowances under this program.(b) Grandfathered and electing EGFs in the El Paso Region are exempt from the requirements of this division if either EPA or the commission determines that reductions of nitrogen oxides in the El Paso Region that would otherwise be required under this division would result in an increased ambient ozone level in El Paso County.</content><note type="source"><p>Source Note: The provisions of this §101.337 adopted to be effective January 11, 2000, 25 TexReg 128.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.338"><num value="101.338">§101.338</num><heading>Emission Reductions Achieved Outside the United States</heading><content>(a) A grandfathered or electing electric generating facility (EGF) may use reductions achieved outside the United States of criteria pollutants or precursors of criteria pollutants to meet the allowance holding requirements of this division if the facility meets the requirements of subsection (c) of this section.(b) A grandfathered or electing EGF may use reductions achieved outside the United States of criteria pollutants or precursors of criteria pollutants and substitute these reductions for reductions in other criteria pollutants or precursors of criteria pollutants or to meet the allowance holding requirements of this division if the facility meets the requirements of subsection (c) of this section; and(1) the reduction is substituted for the reduction of another criteria pollutant and the substitution results in a greater health benefit and is of equal or greater benefit to the overall air quality of the area; or(2) a reduction of an air contaminant for which the area in which the facility is located has been designated as nonattainment or which leads to the formation of a criteria pollutant for which an area has been designated as nonattainment is substituted for any air contaminant for which the area has been designated as nonattainment or leads to the formation of any criteria pollutant for which the area has been designated as nonattainment.(c) The use of reductions outside the United States must be approved by the executive director and the United States Environmental Protection Agency (EPA), and the user of the emission reduction must:(1) demonstrate to the executive director and EPA that the reduction is real, permanent, enforceable, quantifiable, and surplus to any applicable Mexican, federal, state, or local law;(2) demonstrate that the use of the reduction does not cause localized health impacts, as determined by the executive director and EPA;(3) submit all supporting information for calculations and modeling, and any additional information requested by the executive director and EPA; and(4) be located within 100 kilometers of the Texas - Mexico border.(d) This section does not apply to reductions in emissions of lead.</content><note type="source"><p>Source Note: The provisions of this §101.338 adopted to be effective October 26, 2006, 31 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.339"><num value="101.339">§101.339</num><heading>Program Audits and Reports</heading><content>(a) No later than three years after the effective date of this division, and every three years thereafter, the executive director will audit this program. (1) The audit will evaluate the impact of the program on the state's ozone attainment demonstration, the availability and cost of allowances, compliance by the participants, and any other elements the executive director may choose to include. (2) The executive director will recommend measures to remedy any problems identified in the audit. The trading of allowances may be discontinued by the executive director in part or in whole and in any manner, with commission approval, as a remedy for problems identified in the program audit. (3) The audit data and results will be completed and submitted to the United States Environmental Protection Agency (EPA) and made available for public inspection within six months after the audit begins. (b) No later than September 30 following the end of each control period, the executive director shall develop and make available to the general public and EPA, a report that includes: (1) number of allowances allocated to each compliance account; (2) total number of allowances allocated under this division; (3) number of actual nitrogen oxides (NO x ) and sulfur dioxide (SO2) allowances subtracted from each compliance account based on the actual NO x and SO2 emissions from the site; and (4) a summary of all trades completed under this division.</content><note type="source"><p>Source Note: The provisions of this §101.339 adopted to be effective October 26, 2006, 31 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.350"><num value="101.350">§101.350</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act or in §3.2 or §101.1 of this title (relating to Definitions), the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition, the following words and terms, when used in this division, have the following meanings, unless the context clearly indicates otherwise.(1) Adjustment period--A period of time, beginning on the first day of operation of a facility and ending no more than 180 consecutive days later, used to make corrections and adjustments to achieve normal technical operating characteristics of the facility.(2) Affected facility--A facility subject to §§117.310, 117.1210, or 117.2010 of this title (relating to Emission Specifications for Attainment Demonstration; and Emission Specifications) that is located at a site that is subject to this division.(3) Allowance--The authorization to emit one ton of nitrogen oxides, expressed in tenths of a ton, during a control period.(4) Authorized account representative--The responsible person who is authorized, in writing, to trade and otherwise manage allowances.(5) Broker--A person not required to participate in the requirements of this division who opens an account under this division for the purpose of banking and trading allowances.(6) Broker account--The account where allowances held by a broker are recorded. Allowances may not be used to satisfy compliance requirements for this division while held in a broker account.(7) Compliance account--The account where allowances held by the owner or operator of a site subject to this division are recorded for the purposes of meeting the requirements of this division for an affected facility at that site.(8) Control period--The 12-month period beginning January 1 and ending December 31 of each year. The initial control period began January 1, 2002.(9) Existing facility--A new or modified facility that either submitted an application for a permit under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) that the executive director determined to be administratively complete before January 2, 2001, or qualified for a permit by rule under Chapter 106 of this title (relating to Permits by Rule) and commenced construction before January 2, 2001.(10) Houston-Galveston-Brazoria (HGB) ozone nonattainment area--An area consisting of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties.(11) Level of activity--The amount of activity at a facility measured in terms of production, fuel use, raw materials input, or other similar units.(12) Site--As defined in §122.10 of this title (relating to General Definitions).(13) Uncontrolled design capacity to emit--The maximum capacity of a facility to emit nitrogen oxides without consideration for post-combustion pollution control equipment, enforceable limitations, or operational limitations. The owner or operator of a stationary diesel engine may use the lower of 876 hours or a federally enforceable limitation on total hours of operation to calculate uncontrolled design capacity to emit if the engine would otherwise be exempt under §117.2003(a)(2)(I) of this title (relating to Exemptions) except that the engine does not meet the emission standard requirements of §117.2003(a)(2)(I)(ii) of this title.(14) Vintage allowance--An allowance that is not used for compliance during the control period in which it is allocated and remains available for use only in the control period following the one in which it was allocated.</content><note type="source"><p>Source Note: The provisions of this §101.350 adopted to be effective January 18, 2001, 26 TexReg 282; amended to be effective October 18, 2001, 26 TexReg 8073; amended to be effective January 17, 2003, 28 TexReg 83; amended to be effective August 16, 2007, 32 TexReg 4985; amended to be effective April 1, 2010, 35 TexReg 2574; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.351"><num value="101.351">§101.351</num><heading>Applicability</heading><content>(a) This division applies to a site, and each affected facility at that site, in the Houston-Galveston-Brazoria ozone nonattainment area that:(1) is a major source, as defined in §117.10 of this title (relating to Definitions), with one or more affected facilities subject to §117.310 or §117.1210 of this title (relating to Emission Specifications for Attainment Demonstration); or(2) is not a major source, as defined in §117.10 of this title, and has one or more affected facilities subject to §117.2010 of this title (relating to Emission Specifications) with a collective uncontrolled design capacity to emit from these facilities of 10.0 tons or more per year of nitrogen oxides.(b) A site that met the definition of major source as of December 31, 2000, is always classified as a major source for purposes of this division. A site that did not meet the definition of major source (i.e., was a minor source, or did not yet exist) on December 31, 2000, but that at any time after December 31, 2000, becomes a major source, is from that time forward always classified as a major source for purposes of this division.(c) Once a site becomes subject to this division, the site will remain subject to this division until the site is permanently shut down.(d) The banking and trading requirements of this division apply to a broker and a broker account.</content><note type="source"><p>Source Note: The provisions of this §101.351 adopted to be effective January 18, 2001, 26 TexReg 282; amended to be effective June 13, 2001, 26 TexReg 4106; amended to be effective January 17, 2003, 28 TexReg 83; amended to be effective August 16, 2007, 32 TexReg 4985; amended to be effective April 1, 2010, 35 TexReg 2574; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.352"><num value="101.352">§101.352</num><heading>General Provisions</heading><content>(a) An allowance may be used only for the purposes described in this division and only for an affected facility. An allowance may not be used for any purpose that is not described in this division or to meet or exceed the emission limitations authorized under Chapter 116, Subchapter B of this title (relating to New Source Review Permits) or any other applicable requirement. (b) No later than March 1 after each control period, the quantity of allowances in a site's compliance account must be equal to or greater than the total tons of nitrogen oxides (NOX ) emitted from all affected facilities at the site during the control period. (c) The owner or operator of an affected facility may certify reductions from the facility as NOX emission reduction credits (ERCs), provided that: (1) an enforceable and permanent reduction of annual allowances is approved by the executive director at a ratio of 1.0 ton of allowances per year for each 1.0 ton per year of ERCs generated; and (2) all applicable requirements of Division 1 of this subchapter (relating to Emission Credit Program) are met. (d) An allowance cannot be used for netting requirements under Chapter 116, Subchapter B, Divisions 5 and 6 of this title (relating to Nonattainment Review Permits; and Prevention of Significant Deterioration Review). (e) An allowance may be used to offset NOX emissions from an affected facility if such use is authorized in a nonattainment new source review (NNSR) permit issued under Chapter 116, Subchapter B of this title with the following conditions. (1) The owner or operator shall use a permanent allowance allocation equal to the amount specified in the NNSR permit to offset NOX emissions from an affected facility. A vintage allowance or an allowance allocated based on allowable emissions in accordance with variable (B)(i) in the figure in §101.353(a) of this title (relating to Allocation of Allowances) cannot be used as an offset. An allowance used for offsets may not be banked, traded, or used for any other purpose except as allowed in §101.354(g) of this title (relating to Allowance Deductions). (2) At least 30 days before the start of operation of an affected facility using allowances as offsets, the owner or operator shall submit an application form specified by the executive director. (A) Except as provided in paragraph (3) of this subsection, the executive director shall permanently set aside in the site's compliance account an allowance used for the one-to-one portion of the offset ratio. If an allowance set aside for offsets devalues in accordance with §101.353(d) of this title, the owner or operator shall submit the application at least 30 days before the shortfall to revise the amount of allowances set aside for offsets. At the end of each control period, the executive director shall deduct from the site's compliance account all allowances set aside as offsets. (B) The executive director shall permanently retain an allowance used for the environmental contribution portion of the offset ratio. An allowance used for this purpose cannot be used for compliance with this division or devalued due to future regulatory changes. (3) The owner or operator may submit a request to the executive director to release an allowance used for offsets. If approved, the executive director will release the allowances for use in the control period following the date that the request is submitted. Allowances will not be released retroactively for any previous control periods. A request may be submitted if the owner or operator: (A) receives authorization in the NNSR permit to use an alternative means of compliance for any portion of the NOX offset requirement equivalent to the amount of allowances the owner or operator requests to have released for the affected facility; or (B) permanently shuts down the affected facility, except that an allowance used for the environmental contribution portion of the offset ratio does not qualify for release under this paragraph. (f) An allowance does not constitute a security or a property right. (g) An allowance will be allocated, traded, and used in tenths of a ton. The number of allowances will be rounded up to the nearest tenth of a ton when determining allowances used. (h) The owner or operator shall use one compliance account for all affected facilities located at the same site and under common ownership or control. (i) The executive director will maintain a registry of the allowances in each compliance account and broker account. The registry will not contain proprietary information. (j) If there is a change in ownership of a site subject to this division, the new owner of the site is responsible for complying with the requirements of this division beginning with the control period during which the site was purchased. The new owner shall contact the executive director to request a compliance account for the site. The new owner must acquire allowances in accordance with §101.356 of this title (relating to Allowance Banking and Trading).</content><note type="source"><p>Source Note: The provisions of this §101.352 adopted to be effective January 18, 2001, 26 TexReg 282; amended to be effective October 18, 2001, 26 TexReg 8073; amended to be effective January 17, 2003, 28 TexReg 83; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.353"><num value="101.353">§101.353</num><heading>Allocation of Allowances</heading><content>(a) The executive director shall deposit allowances into a compliance account according to the following equation except as provided by subsection (b) or (g) of this section. Attached Graphic(b) The owner or operator of the following affected facilities shall acquire allowances for each control period or the annual allocation from a facility already participating under this division in accordance with §101.356 of this title (relating to Allowance Banking and Trading): (1) a new or modified facility for which the owner or operator submitted, under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification), an application that the executive director did not determine to be administratively complete before January 2, 2001; (2) a new or modified facility that qualified for a permit by rule under Chapter 106 of this title (relating to Permits by Rule) for which the owner or operator did not commence construction before January 2, 2001; (3) a facility in operation before January 1, 1997 located at a site defined on or before December 31, 2000 as a major source, as defined in §117.10 of this title (relating to Definitions), for which the owner or operator did not submit the application form specified by the executive director in accordance with §101.360(a)(1) of this title (relating to Level of Activity Certification) by March 30, 2010; and (4) an existing facility located at a site defined before January 1, 2001, as a major source, as defined in §117.10 of this title, for which the owner or operator did not submit the application form specified by the executive director in accordance with §101.360(a)(2) of this title by March 30, 2010. (c) The executive director will allocate and deposit allowances into each compliance account by January 1 of each year. (d) The executive director may adjust the deposits for any control period to reflect new or existing state implementation plan requirements. (e) The executive director may add or deduct allowances from compliance accounts based on the review of reports required under §101.359 of this title (relating to Reporting). (f) The owner or operator of a facility may, due to extenuating circumstances, request a baseline period more representative of normal operation as determined by the executive director. Applications for extenuating circumstances must be submitted by the owner or operator of the facility to the executive director: (1) no later than 90 days after completion of the baseline period to request up to two additional calendar years to establish a baseline period for a facility whose baseline as described by variable (B)(i) listed in the figure in subsection (a) of this section is not complete by June 30, 2001; or (2) at any time as authorized by the executive director. (g) An allowance calculated under subsection (a) of this section will continue to be based on historical level of activity, despite subsequent reductions in the level of activity. If an allowance is being allocated based on allowables and the facility does not achieve two complete consecutive calendar years of actual level of activity data, then the allowance will not continue to be allocated if the facility ceases operation or is not built.</content><note type="source"><p>Source Note: The provisions of this §101.353 adopted to be effective January 18, 2001, 26 TexReg 282; amended to be effective October 18, 2001, 26 TexReg 8073; amended to be effective January 17, 2003, 28 TexReg 83; amended to be effective August 16, 2007, 32 TexReg 4985; amended to be effective April 1, 2010, 35 TexReg 2574; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.354"><num value="101.354">§101.354</num><heading>Allowance Deductions</heading><content>(a) The executive director shall deduct allowances in tenths of a ton from a site's compliance account in an amount equal to the nitrogen oxides (NOX ) emissions from each affected facility during the previous control period. The amount of NOX emissions must be quantified using the monitoring and testing protocols established in §§117.335, 117.340, 117.1235, 117.1240, and 117.2035 of this title (relating to Initial Demonstration of Compliance; Continuous Demonstration of Compliance; and Monitoring and Testing Requirements). (b) If the monitoring and testing data required under subsection (a) of this section is missing or unavailable, the NOX emissions from an affected facility may be quantified for that period of time using the following methods in the following order: continuous monitoring data; periodic monitoring data; testing data; manufacturer's data, and EPA Compilation of Air Pollution Emission Factors (AP-42), September 2000. (1) When quantifying NOX emissions under this subsection, the owner or operator of the affected facility shall submit the justification for not using the methods in subsection (a) of this section and the justification for the method used. (2) If NOX emissions are quantified under this subsection due to non-compliance with the monitoring and testing required under subsection (a) of this section, the executive director shall deduct allowances from a site's compliance account in an amount equal to the NOX emissions quantified under this subsection plus an additional 10%. (c) If the protocol used to show compliance with this section differs from the protocol used by the executive director to establish the allocation of allowances under §101.353 of this title (relating to Allocation of Allowances), the executive director may recalculate the number of allowances allocated per year for consistency between the methods. (d) When deducting allowances from a site's compliance account for a control period, the executive director will deduct the allowances beginning with the most recently allocated allowances before deducting vintage allowances. (e) The executive director shall deduct allowances from a site's compliance account in an amount equal to the NOX emissions increases from a facility not subject to an emission specification under §117.310 or §117.2010 of this title (relating to Emission Specifications for Attainment Demonstration; and Emission Specifications) that result from changes made after December 31, 2000, to a facility subject to this division and §117.310(e)(3) or §117.2010(f) of this title. The owner or operator shall submit detailed documentation on these increases in NOX emissions with the annual compliance report. (f) An allowance allocated based on allowable emissions in accordance with variable (B)(i) in the figure in §101.353(a) of this title may only be used by the facility for which it was allocated and may not be used by any other facility. (g) The amount of allowances deducted from a site's compliance account under subsection (a) of this section will be reduced by the amount of allowances deducted in accordance with §101.352(e)(2)(A) of this title (relating to General Provisions). (h) If the NOX emissions from the affected facilities during a control period exceed the amount of allowances in the site's compliance account on March 1 following that control period, the executive director will reduce allowances for the next control period by an amount equal to the emissions exceeding the allowances in the site's compliance account plus an additional 10%. (1) If the site's compliance account does not hold sufficient allowances to accommodate this reduction, the executive director shall issue a Notice of Deficiency requiring the owner or operator to obtain sufficient allowances within 30 days of the notice. (2) These actions do not preclude additional enforcement action by the executive director.</content><note type="source"><p>Source Note: The provisions of this §101.354 adopted to be effective January 18, 2001, 26 TexReg 282; amended to be effective October 18, 2001, 26 TexReg 8073; amended to be effective January 17, 2003, 28 TexReg 83; amended to be effective August 16, 2007, 32 TexReg 4985; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.356"><num value="101.356">§101.356</num><heading>Allowance Banking and Trading</heading><content>(a) An allowance not used for compliance in the control period it was allocated may be banked as a vintage allowance for use in the following control period in compliance with §101.354 of this title (relating to Allowance Deductions) or traded except as provided by subsection (g) of this section. (b) An allowance that has not expired or been used may be traded at any time during a control period after it has been allocated except as provided by subsection (g) of this section. (c) Only an authorized account representative may trade an allowance. (d) At least 30 days before the allowances are deposited into the buyer's account, the seller shall submit the appropriate trade application to the executive director. The completed application must show the amount of allowances traded and, except for trades between sites under common ownership or control, the purchase price per ton of allowances traded. (1) To trade a current allowance or vintage allowance for a single year, the seller shall submit the application form specified by the executive director. Trades involving allowances needed for compliance with a control period must be submitted on or before January 30 of the following control period. (2) To permanently trade ownership of any portion of the allowances allocated annually to an individual facility, the seller shall submit the application form specified by the executive director. (3) To trade any portion of the individual future year allowances to be allocated annually to an individual facility, the seller shall submit the application form specified by the executive director. (e) All information regarding the quantity and sales price of allowances will be made available to the public as soon as practicable. (f) The executive director will send letters to the seller and buyer if the trade is approved or denied. If approved, the trade is final upon the date of the letter from the executive director. (g) Allowances that were allocated based on allowable emissions in accordance with variable (B)(i) in the figure in §101.353(a) of this title (relating to Allocation of Allowances) may not be banked for future use or traded. (h) Nitrogen oxides (NOX ) discrete emission reduction credits (DERCs) or mobile discrete emission reduction credits (MDERCs) generated and acquired in accordance with Division 4 of this subchapter (relating to Discrete Emission Credit Program) may be used in place of allowances for compliance with this division in accordance with this subsection. Volatile organic compound (VOC) DERCs or MDERCs generated and acquired in accordance with Division 4 of this subchapter may be used in place of allowances for compliance with this division in accordance with this subsection if the user satisfies the inter-pollutant requirements in §101.376(g) of this title (relating to Discrete Emission Credit Use). (1) MDERCs may be used in lieu of allowances at a ratio of one ton of MDERCs for one ton of allowances. (2) DERCs generated by a stationary source before January 1, 2005 may be used in lieu of allowances at a ratio of ten tons of DERCs for one ton of allowances. (3) DERCs generated after December 31, 2004 may be used in lieu of allowances at a ratio of one ton of DERCs for one ton of allowances. (4) The 10% environmental contribution and the 5% compliance margin of Division 4 of this subchapter do not apply. (5) To use DERCs or MDERCs for the purpose of compliance with this division, the required application must be submitted to the executive director on or before October 1 of the control period for which the DERCs or MDERCs will be used. In addition, the required application must be submitted by March 31 with the site's annual compliance report. (6) No more than 10,000 tons of DERCs generated from stationary sources may be used for compliance with this division in any combination totaled over all sites in the Houston-Galveston-Brazoria area during a single calendar year. DERCs may be approved for use with this division according to the following. (A) The executive director may approve the use of 250 tons or less of DERCs per site, per control period, unless the 10,000 ton per year limit has been reached. (B) If a site requests the use of more than 250 tons of DERCs in a control period, the amount in excess of 250 tons may be reduced so that the total amount of all DERCs used by all sites does not exceed 10,000 tons. For all requests greater than 250 tons, the excess DERCs up to the 10,000 ton DERC limit may be apportioned based on the percentage of DERCs greater than 250 tons requested for use by those sites relative to the total amount of DERCs available up to the 10,000 ton DERC limit.</content><note type="source"><p>Source Note: The provisions of this §101.356 adopted to be effective January 18, 2001, 26 TexReg 282; amended to be effective October 18, 2001, 26 TexReg 8073; amended to be effective January 17, 2003, 28 TexReg 83; amended to be effective December 2, 2004, 29 TexReg 11038; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.357"><num value="101.357">§101.357</num><heading>Use of Emission Reductions Generated from the Texas Emissions Reduction Plan (TERP)</heading><content>(a) An owner or operator of a site as defined in §122.10 of this title (relating to General Definitions) in the Houston/Galveston ozone nonattainment area may use nitrogen oxides (NOx ) emission reductions generated under the TERP in lieu of allowances for compliance with this division provided that: (1) the owner or operator of the site contributes to the TERP fund $75,000 per ton of NOx emissions used, not to exceed 25 tons per year or 0.5 tons per day on a site-wide basis; (2) the owner or operator of the site demonstrates to the executive director that the site will be in full compliance with the applicable emission reduction requirements of this division and Chapter 117 of this title (relating to Control of Air Pollution from Nitrogen Compounds) no later than the fifth anniversary of the date on which the emission reductions would otherwise be required; (3) emissions from the site are reduced by at least 80% of the required reductions; (4) the reductions accomplished under the TERP have not been previously used to meet reduction requirements under a state implementation plan attainment demonstration; (5) the reductions accomplished under the TERP are used in the same nonattainment area in which they are generated; and (6) the executive director approves a petition submitted by the owner or operator of the site that demonstrates that it is technically infeasible to comply with applicable emission reduction requirements of this division and Chapter 117 of this title above 80% of the required reductions. When considering technical infeasibility the executive director may consider, but will not be limited to: (A) current technology; (B) adaptability of technology to a particular source; (C) age and projected useful life of a source; and (D) cost benefits at the time of application. (b) The emissions reductions funded under the TERP, and used to offset commission requirements, shall be used to benefit the community in which the site using the emissions reductions is located. If there are no eligible emissions reduction projects within the community, the commission may authorize projects in an adjacent community. For purposes of this section, a community means a Justice of the Peace precinct.</content><note type="source"><p>Source Note: The provisions of this §101.357 adopted to be effective April 4, 2002, 27 TexReg 2510.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.359"><num value="101.359">§101.359</num><heading>Reporting</heading><content>(a) No later than March 31 after each control period, the owner or operator of a site subject to this division shall submit a completed annual compliance report specified by the executive director to the executive director, which must include the following: (1) the amount of actual nitrogen oxides (NOX ) emissions from applicable facilities at the site during the preceding control period; (2) the method of determining NOX emissions from applicable facilities, including, but not limited to, any monitoring protocol and results, calculation methodology, level of activity, and emission factor; (3) a summary of all final trades for the preceding control period; (4) detailed documentation supporting the reported level of activity and emission factor for each affected facility. It is acceptable to reference documentation supporting a level of activity or an emission factor if previously submitted with an annual compliance report or level of activity certification form; and (5) detailed documentation on NOX emissions from each facility not subject to an emission specification under §117.310 or §117.2010 of this title (relating to Emission Specifications for Attainment Demonstration and Emission Specifications) that result from changes made after December 31, 2000, to an affected facility as required in §101.354(e) of this title (relating to Allowance Deductions). (b) For the owner or operator of a site failing to submit an annual compliance report by the required deadline in subsection (a) of this section, the executive director may withhold approval of any proposed trades from that site involving allowances allocated for the control period for which the report is due or to be allocated in subsequent control periods. (c) The owner or operator of a site subject to this division that no longer has authorization to operate any affected facilities may request a waiver from the reporting requirements in this section. If approved, the annual compliance report will not be required until a new affected facility is authorized at the site.</content><note type="source"><p>Source Note: The provisions of this §101.359 adopted to be effective January 18, 2001, 26 TexReg 282; amended to be effective December 2, 2004, 29 TexReg 11038; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.360"><num value="101.360">§101.360</num><heading>Level of Activity Certification</heading><content>(a) The owner or operator of any site subject to this division shall certify the historical level of activity for each affected facility by submitting to the executive director a completed application along with any supporting information such as usage records, testing or monitoring data, emission factors, and production records. The historical level of activity must be determined as follows:(1) for a facility in operation before January 1, 1997, the level of activity averaged over 1997, 1998, and 1999;(2) for an existing facility the level of activity authorized by the executive director; and(3) for a new or modified facility not in operation before January 1, 1997, that is subject to an emission specification under §§117.310, 117.1210, or 117.2010 of this title (relating to Emission Specifications for Attainment Demonstration; and Emission Specifications) first adopted after April 1, 2001, and either has submitted under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) an application determined by the executive director to be administratively complete within 90 days of the effective date of this emission specification, or has qualified for a permit by rule under Chapter 106 of this title (relating to Permits by Rule) and commenced construction within 90 days of the effective date of the emission specification, the level of activity authorized by the executive director.(b) The owner or operator that certified a facility's allowable level of activity under subsection (a)(2) of this section shall:(1) no later than 90 days after the end of the fifth year of operation, certify the actual level of activity and actual emission factors for the two complete consecutive calendar years chosen as a baseline by submitting to the executive director a completed application, along with any supporting information such as usage records, testing or monitoring data, and production records; and(2) receive no benefit of allowances allocated based on actual operation until January 1 of the control period following the certification in paragraph (1) of this subsection.(c) The owner or operator of a site or facility that becomes subject to this division after March 31, 2001 shall certify the level of activity, as determined by the executive director, in accordance with subsections (a) and (b) of this section. The certification must be submitted no later than 90 days after the date the site or facility becomes subject to this division.</content><note type="source"><p>Source Note: The provisions of this §101.360 adopted to be effective January 18, 2001, 26 TexReg 282; amended to be effective October 18, 2001, 26 TexReg 8073; amended to be effective January 17, 2003, 28 TexReg 83; amended to be effective August 16, 2007, 32 TexReg 4985; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.363"><num value="101.363">§101.363</num><heading>Program Audits and Reports</heading><content>(a) No later than three years after the effective date of this division, and every three years thereafter, the executive director will audit this program. (1) The audit will evaluate the impact of the program on the state's ozone attainment demonstration, the availability and cost of allowances, compliance by the participants, and any other elements the executive director may choose to include. (2) The executive director will recommend measures to remedy any problems identified in the audit. The trading of allowances, discrete emission reduction credits (DERCs), and/or mobile discrete emission reduction credits (MDERCs) may be discontinued by the executive director in part or in whole and in any manner, with commission approval, as a remedy for problems identified in the program audit. (3) The audit data and results will be completed and submitted to the EPA and made available for public inspection within six months after the audit begins. (b) No later than June 30 following the end of each control period, the executive director shall develop and make available to the general public and EPA, a report that includes: (1) number of allowances allocated to each compliance account; (2) total number of allowances allocated under this division; (3) number of actual nitrogen oxides (NO x ) allowances subtracted from each compliance account based on the actual NOx emissions from the site; and (4) a summary of all trades completed under this division.</content><note type="source"><p>Source Note: The provisions of this §101.363 adopted to be effective October 18, 2001, 26 TexReg 8073.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.370"><num value="101.370">§101.370</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act or in §3.2 or §101.1 of this title (relating to Definitions), the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition, the following words and terms, when used in this division, have the following meanings, unless the context clearly indicates otherwise. (1) Activity--The amount of activity at a facility or mobile source measured in terms of production, use, raw materials input, vehicle miles traveled, or other similar units that have a direct correlation with the economic output and emission rate of the facility or mobile source. (2) Actual emissions--The total emissions during a selected time period, using the facility's or mobile source's actual daily operating hours, production rates, or types of materials processed, stored, or combusted during that selected time period. (3) Area source--Any facility included in the agency emissions inventory under the area source category. (4) Baseline emissions--The facility's emissions, in tons per year, before implementation of an emission reduction and calculated as the lowest of the facility's historical adjusted emissions or state implementation plan (SIP) emissions, except that the SIP emissions value is only considered for a facility in a nonattainment area. (5) Certified--Any emission reduction that is determined to be creditable upon review and approval by the executive director. (6) Curtailment--A reduction in activity level at any facility or mobile source. (7) Discrete emission credit--A discrete emission reduction credit or mobile discrete emission reduction credit. (8) Discrete emission reduction credit--A certified emission reduction that is created by reducing emissions from a facility during a generation period, quantified after the generation period, and expressed in tenths of a ton. (9) Emission rate--The facility's rate of emissions per unit of activity. (10) Emission reduction--A reduction in actual emissions from a facility or mobile source. (11) Emission reduction strategy--The method implemented to reduce the facility's or mobile source's emissions beyond that required by state or federal law, regulation, or agreed order. (12) Facility--As defined in §116.10 of this title (relating to General Definitions). Original equipment and replacement-in-kind equipment that are the same or functionally equivalent are considered the same facility. For the purpose of generating a discrete emission reduction credit at an area source, multiple emissions points with common characteristics may be grouped in order to be considered as a single unit equivalent to a facility as long as the total grouping has emissions equal to or greater than 0.1 ton, even if points within the group have emissions of less than 0.1 ton.(13) Generation period--The discrete period of time, not exceeding 12 months, over which a discrete emission credit is created. (14) Generator--The owner or operator of a facility or mobile source that creates an emission reduction. (15) Historical adjusted emissions--The emissions occurring before implementation of an emission reduction strategy and adjusted for any local, state, or federal requirement, calculated using the following equation. Attached Graphic(16) Mobile discrete emission reduction credit--A certified emission reduction from a mobile source or group of mobile sources that is created during a generation period, quantified after the period in which emissions reductions are made, and expressed in tenths of a ton. (17) Mobile source--A source included in the agency's emissions inventory under the mobile source category. (18) Mobile source baseline activity--The level of activity of a mobile source during the applicable mobile source baseline emissions period. (19) Mobile source baseline emissions--The mobile source's actual emissions, in tons per year, occurring prior to a mobile emission reduction strategy calculated as the lowest of the historical adjusted emissions or state implementation plan emissions. (20) Mobile source baseline emissions rate--The mobile source's rate of emissions per unit of mobile source baseline activity during the mobile source baseline emissions period. (21) Ozone season--The portion of the year when ozone monitoring is federally required to occur in a specific geographic area, as defined in 40 Code of Federal Regulations Part 58, Appendix D, §2.5. (22) Point source--A facility included in the agency's emissions inventory under the point source category. (23) Primarily operated--When the activity is at least 75% within a specific nonattainment area. (24) Projection-base year--The year of the emissions inventory used to project or forecast future-year emissions for modeling point sources in a state implementation plan revision. (25) Protocol--A replicable and workable method of estimating emission rates or activity levels used to calculate the amount of emission reduction generated or credits required for facilities or mobile sources. (26) Quantifiable--An emission reduction that can be measured or estimated with confidence using replicable methodology. (27) Real reduction--A reduction in which actual emissions are reduced. Emissions reductions that result from any of the following are not considered a real reduction:(A) lowering the allowable emission limit in a permit without a physical change or change in method of operation; (B) shifting a vent gas stream or other pollution or waste stream to another site;(C) a mobile source that is not capable of being operated as intended; or(D) a change in an emissions factor or emissions calculation equation. (28) Shutdown--The cessation of an activity producing emissions at a facility or mobile source. (29) Site--As defined in §122.10 of this title (relating to General Definitions). (30) State implementation plan--A plan that provides for attainment and maintenance of a primary or secondary national ambient air quality standard as adopted in 40 Code of Federal Regulations Part 52, Subpart SS. (31) State implementation plan (SIP) emissions--SIP emissions are determined as follows. (A) For point sources, SIP emissions are facility-specific values based on the emissions data in the state's annual emissions inventory (EI) for the year used to develop the projection-base year inventory for the modeling included in an attainment demonstration (AD) SIP revision, used for the attainment inventory for a maintenance plan SIP revision, or used in an EI SIP revision, as applicable under subparagraph (B)(i) - (iii) of this paragraph. For area and mobile sources, SIP emissions are calculated values based on actual operations during the latest triennial National Emissions Inventory (NEI) year used to develop the modeling included in an AD SIP revision, used for the attainment inventory for a maintenance plan SIP revision, or used in an EI SIP revision, as applicable under subparagraph (B)(i)- (iii) of this paragraph. For point, area, and mobile sources located in a nonattainment area without an applicable SIP as determined under subparagraph (B)(i) - (iii) of this paragraph, SIP emissions are based on the year of the most recent NEI submitted to the United States Environmental Protection Agency (EPA) preceding that area's nonattainment designation for the current National Ambient Air Quality Standard (NAAQS).(B) The applicable SIP revision must be for the nonattainment area where the facility is located, or for mobile sources where the mobile source is primarily operated, and must be for the criteria pollutant, or include the precursor pollutant, for which the applicant is requesting credits. The applicable SIP revision is:(i) an AD SIP revision or a maintenance plan SIP revision, whichever was most recently submitted to the EPA for the current NAAQS; (ii) if the SIP revisions identified in clause (i) of this subparagraph have not been submitted to the EPA, an AD SIP revision or a maintenance plan SIP revision, whichever was most recently submitted to the EPA for an earlier NAAQS issued in the same averaging time and the same form as the current NAAQS; or(iii) if the SIP revisions identified in clauses (i) and (ii) of this subparagraph have not been submitted to the EPA, the most recent EI SIP revision submitted to the EPA.(C) The total amount of SIP emissions available for credit generation will be set for area, non-road mobile, and on-road mobile source categories. (i) Total creditable area source emissions are 75% of the total area source emissions excluding residential area sources in the applicable SIP revision.(ii) Total creditable non-road mobile source emissions are 75% of the total non-road mobile source emissions in the applicable SIP revision.(iii) Total creditable on-road mobile source emissions are 85% of the total on-road mobile source emissions in the applicable SIP revision.(D) The SIP emissions for a facility or mobile source may not exceed any applicable local, state, or federal requirement.(E) The year used to determine SIP emissions is as specified in subparagraph (A) of this paragraph, unless a different year is specifically identified otherwise by the commission in the most recent SIP revision adopted after December 31, 2017.(32) Strategy activity--The facility's or mobile source's level of activity during the discrete emission reduction credit generation period. (33) Strategy emission rate--The facility's or mobile source's emission rate during the discrete emission reduction credit generation period. (34) Surplus--An emission reduction that is not otherwise required of a facility or mobile source by any applicable local, state, or federal requirement and has not been otherwise relied upon in the state implementation plan. (35) Use period--The period of time over which the user applies discrete emission credits to an applicable emission reduction requirement. (36) User--The owner or operator of a facility or mobile source that acquires and uses discrete emission reduction credits to meet a regulatory requirement, demonstrate compliance, or offset an emission increase. (37) Use strategy--The compliance requirement for which discrete emission credits are being used.</content><note type="source"><p>Source Note: The provisions of this §101.370 adopted to be effective January 18, 2001, 26 TexReg 282; amended to be effective October 18, 2001, 26 TexReg 8073; amended to be effective January 17, 2003, 28 TexReg 83; amended to be effective December 2, 2004, 29 TexReg 11038; amended to be effective June 25, 2015, 40 TexReg 3848; amended to be effective October 12, 2017, 42 TexReg 5441.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.371"><num value="101.371">§101.371</num><heading>Purpose</heading><content>The purpose of this division is to allow the owner or operator of a facility or mobile source to generate discrete emission credits by reducing emissions beyond any applicable local, state, or federal requirement and to allow the owner or operator of another source to use these credits. Participation under this division is strictly voluntary.</content><note type="source"><p>Source Note: The provisions of this §101.371 adopted to be effective January 18, 2001, 26 TexReg 282; amended to be effective January 17, 2003, 28 TexReg 83; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.372"><num value="101.372">§101.372</num><heading>General Provisions</heading><content>(a) Applicable pollutants. (1) A discrete emission credit may be generated from a reduction of a criteria pollutant, excluding lead, or a precursor of a criteria pollutant. (2) A discrete emission credit generated from the reduction of one pollutant or precursor may not be used to meet the requirements for another pollutant or precursor, except as provided in §101.376 of this title (relating to Discrete Emission Credit Use). (b) Eligible generator categories. Eligible categories include the following: (1) point source facilities; (2) mobile sources; (3) any facility, including area sources, or mobile source associated with actions by federal agencies under 40 Code of Federal Regulations Part 93, Subpart B, Determining Conformity of General Federal Actions to State or Federal Implementation Plans; and. (4) area source facilities, including those comprised of multiple emission points as allowed under §101.370(12) of this title (relating to Definitions). Credit generation from grouped emission points cannot exceed the lower of the group's actual emissions in the SIP emissions year or the historical adjusted emissions. Facilities comprised of grouped emission points may include equipment that was not operational during the SIP emissions year or the historical adjusted emissions years as long as the emissions from the group were present during the SIP emissions year. Characteristics that may be considered to determine if emission points qualify for consideration as a single facility for the purposes of generating emission credits, include but are not limited to:(A) source classification codes;(B) primary standard industrial classification code;(C) location, origin of, characteristics of, and controls on the emissions; (D) the generation period; and(E) other credit calculation-related characteristics, such as fuel, equipment type, emissions reduction strategy, and quantification protocol.(c) Ineligible generator categories. The following categories are not eligible to generate discrete emission credits: (1) residential area sources; (2) on-road mobile sources that are not part of an industrial, commercial, nonprofit, institutional, or municipal/government fleet; and (3) mobile sources within a nonattainment area that do not primarily operate within that nonattainment area with the exception of marine and locomotive sources that use capture and control emissions reduction systems. (d) Discrete emission credit requirements. (1) A discrete emission reduction credit (DERC) is a certified emission reduction that: (A) must be real, quantifiable, and surplus at the time the DERC is generated; (B) must occur after the year used to determine the state implementation plan (SIP) emissions for a facility in a nonattainment area; and (C) must occur at a facility with SIP emissions for a facility in a nonattainment area. (2) To be creditable as a mobile discrete emission reduction credit, an emission reduction must meet the following: (A) the reduction must be real, quantifiable, and surplus at the time it is created; (B) the reduction must have occurred after the SIP emissions year for a mobile source in a nonattainment area; and(C) for a mobile source in a nonattainment area, the mobile source must have operated during the SIP emissions year. (3) Emission reductions from a facility or mobile source certified as discrete emission credits under this division cannot be recertified in whole or in part as emission credits under another division within this subchapter. (e) Protocol. (1) All generators or users of discrete emission credits must use a protocol which has been submitted by the executive director to the United States Environmental Protection Agency (EPA) for approval, if existing for the applicable facility or mobile source, to measure and calculate baseline emissions. If the generator or user wishes to deviate from a protocol submitted by the executive director, EPA approval is required before the protocol can be used. Protocols shall be used as follows. (A) The owner or operator of a facility subject to the emission specifications under §§117.110, 117.310, 117.410, 117.1010, 117.1210, 117.1310, 117.2010, 117.2110, or 117.3310 of this title (relating to Emission Specifications for Attainment Demonstration; Emission Specifications for Eight-Hour Attainment Demonstration; and Emission Specifications) shall use the testing and monitoring methodologies required under Chapter 117 of this title (relating to Control of Air Pollution from Nitrogen Compounds) to show compliance with the emission specification for that pollutant. (B) The owner or operator of a facility subject to the control requirements or emission specifications under Chapter 115 of this title (relating to Control of Air Pollution from Volatile Organic Compounds) shall use the testing and monitoring methodologies required under Chapter 115 of this title to show compliance with the applicable requirements. (C) For area sources, except as specified in subparagraphs (A) and (B) of this paragraph, the owner or operator of a facility subject to the requirements under Chapter 106 of this title (relating to Permits by Rule) or a permit issued under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) shall use the testing and monitoring methodologies required under Chapter 106 of this title or a permit issued under Chapter 116 of this title to demonstrate compliance with the applicable requirements.(D) The executive director may approve the use of a methodology approved by the EPA to quantify emissions from the same type of facility. (E) Except as specified in subparagraph (D) of this paragraph, if the executive director has not submitted a protocol for the applicable facility or mobile source to the EPA for approval, the following applies: (i) the amount of discrete emission credits from a facility or mobile source, in tons, will be determined and certified based on quantification methodologies at least as stringent as the methods used to demonstrate compliance with any applicable requirements for the facility or mobile source; (ii) the generator shall collect relevant data sufficient to characterize the facility's or mobile source's emissions of the affected pollutant and the facility's or mobile source's activity level for all representative phases of operation in order to characterize the facility's or mobile source's baseline emissions; (iii) the owner or operator of a facility with a continuous emissions monitoring system or predictive emissions monitoring system in place shall use this data in quantifying emissions; (iv) the chosen quantification protocol must be made available for public comment for a period of 30 days and must be viewable on the commission's website; (v) the chosen quantification protocol and any comments received during the public comment period must, upon approval by the executive director, be submitted to the EPA for a 45-day adequacy review; and (vi) quantification protocols may not be accepted for use with this division if the executive director receives a letter objecting to the use of the protocol from the EPA during the 45-day adequacy review or the EPA proposes disapproval of the protocol in the Federal Register. (2) If the monitoring and testing data specified in paragraph (1) of this subsection is missing or unavailable, the generator or user shall determine the facility's emissions for the period of time the data is missing or unavailable using the most conservative method for replacing the data and these listed methods in the following order: (A) continuous monitoring data; (B) periodic monitoring data; (C) testing data; (D) manufacturer's data; (E) EPA Compilation of Air Pollution Emission Factors (AP-42), September 2000; or (F) material balance. (3) When quantifying actual emissions in accordance with paragraph (2) of this subsection, the generator or user shall submit the justification for not using the methods in paragraph (1) of this subsection and submit the justification for the method used. (f) Credit application. Beginning January 1, 2018, a credit application must be submitted through the State of Texas Environmental Reporting System unless the applicant receives prior approval from the executive director for an alternative means of application submission.(g) Credit certification. (1) The amount of discrete emission credits must be rounded down to the nearest tenth of a ton when generated and must be rounded up to the nearest tenth of a ton when used. A facility, aggregated fugitive emissions, or aggregated mobile sources that cannot generate at least 0.1 ton of credit after all adjustments are applied may not generate discrete emission credits. Fugitive emissions or mobile source emissions aggregated to meet the requirement that emission reductions be certified for at least 0.1 ton must be represented on the same application and will have an application deadline determined by the earliest emission reduction date among the aggregated sources.(2) The executive director shall review an application for certification to determine the credibility of the reductions and may certify reductions. Each DERC certified will be assigned a certificate number. Reductions determined to be creditable will be certified by the executive director. (3) The applicant will be notified in writing if the executive director denies the discrete emission credit notification. The applicant may submit a revised application in accordance with the requirements of this division. (4) If a facility's or mobile source's emissions exceed any applicable local, state, or federal requirement, reductions of emissions exceeding the requirement may not be certified as discrete emission credits. (h) Geographic scope. Except as provided in paragraph (7) of this subsection and §101.375 of this title (relating to Emission Reductions Achieved Outside the United States), only emission reductions generated in the State of Texas may be creditable and used in the state with the following limitations. (1) volatile organic compounds (VOC) and nitrogen oxides (NOX ) discrete emission credits generated in an ozone attainment area may be used in any county or portion of a county designated as attainment or unclassified, except as specified in paragraphs (4) and (5) of this subsection and may not be used in an ozone nonattainment area. (2) VOC and NOX discrete emission credits generated in an ozone nonattainment area may be used either in the same ozone nonattainment area in which they were generated, or in any county or portion of a county designated as attainment or unclassified. (3) VOC and NOX discrete emission credits generated in an ozone nonattainment area may not be used in any other ozone nonattainment area, except as provided in this subsection. (4) VOC discrete emission credits are prohibited from use within the covered attainment counties, as defined in §115.10 of this title (relating to Definitions), if generated outside of the covered attainment counties. VOC discrete emission credits generated in a nonattainment area may be used in the covered attainment counties, except those generated in El Paso. (5) NOX discrete emission credits are prohibited from use within the covered attainment counties, as defined in §115.10 of this title, if generated outside of the covered attainment counties. NOX discrete emission credits generated in a nonattainment area, except those generated in El Paso, may be used in the covered attainment counties. (6) carbon monoxide (CO), sulfur dioxide (SO2), and particulate matter with diameters less than or equal to 10 micrometers (PM10 ) discrete emission credits must be used in the same metropolitan statistical area (as defined in Office of Management and Budget Bulletin Number 93-17 entitled "Revised Statistical Definitions for Metropolitan Areas" dated June 30, 1993) in which the reduction was generated. (7) VOC and NOX discrete emission credits generated in other counties, states, or emission reductions in other nations may be used in any attainment or nonattainment county provided a demonstration has been made and approved by the executive director and the EPA, to show that the emission reductions achieved in the other county, state, or nation improve the air quality in the county where the credit is being used. (i) Ozone season. In areas having an ozone season of less than 12 months (as defined in 40 Code of Federal Regulations Part 58, Appendix D) VOC and NOX discrete emission credits generated outside the ozone season may not be used during the ozone season. (j) Recordkeeping. The generator must maintain a copy of all forms and backup information submitted to the executive director for a minimum of five years, following the completion of the generation period. The user shall maintain a copy of all forms and backup information submitted to the executive director for a minimum of five years, following the completion of the use period. Other relevant reference material or raw data must also be maintained on-site by the participating facilities or mobile sources. The user must also maintain a copy of the generator's notice and backup information for a minimum of five years after the use is completed. The records must include, but not necessarily be limited to: (1) the name, emission point number, and facility identification number of each facility or any other identifying number for mobile sources using discrete emission credits; (2) the amount of discrete emission credits being used by each facility or mobile source; and (3) the certificate number of each discrete emission credit used by each facility or mobile source. (k) Public information. All information submitted with notices, reports, and trades regarding the nature, quantity of emissions, and sales price associated with the use, or generation of discrete emission credits is public information and may not be submitted as confidential. Any claim of confidentiality for this type of information, or failure to submit all information may result in the rejection of the discrete emission reduction application. All nonconfidential notices and information regarding the generation, use, and availability of discrete emission credits may be obtained from the registry. (l) Authorization to emit. A discrete emission credit created under this division is a limited authorization to emit the specified pollutants in accordance with the provisions of this section, the Federal Clean Air Act, and the Texas Clean Air Act, as well as regulations promulgated thereunder. A discrete emission credit does not constitute a property right. Nothing in this division should be construed to limit the authority of the commission or the EPA to terminate or limit such authorization. (m) Program participation. The executive director has the authority to prohibit a person from participating in discrete emission credit trading either as a generator or user, if the executive director determines that the person has violated the requirements of the program or abused the privileges provided by the program. (n) Compliance burden and enforcement. (1) The user is responsible for assuring that a sufficient quantity of discrete emission credits are acquired to cover the applicable facility or mobile source's emissions for the entire use period. (2) The user is in violation of this section if the user does not possess enough discrete emission credits to cover the compliance need for the use period. If the user possesses an insufficient quantity of discrete emission credits to cover its compliance need, the user will be out of compliance for the entire use period. Each day the user is out of compliance may be considered a violation. (3) A user may not transfer its compliance burden and legal responsibilities to a third-party participant. A third-party participant may only act in an advisory capacity to the user. (o) Credit ownership. The owner of the initial discrete emission credit certificate shall be the owner or operator of the mobile source creating the emission reduction. The executive director may approve a deviation from this subsection considering factors such as, but not limited to: (1) whether an entity other than the owner or operator of the mobile source incurred the cost of the emission reduction strategy; or (2) whether the owner or operator of the mobile source lacks the potential to generate one tenth of a ton of credit.</content><note type="source"><p>Source Note: The provisions of this §101.372 adopted to be effective January 17, 2003, 28 TexReg 83; amended to be effective October 26, 2006, 31 TexReg 8684; amended to be effective August 16, 2007, 32 TexReg 4985; amended to be effective June 25, 2015, 40 TexReg 3848; amended to be effective October 12, 2017, 42 TexReg 5441.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.373"><num value="101.373">§101.373</num><heading>Discrete Emission Reduction Credit Generation and Certification</heading><content>(a) Emission reduction strategy. (1) A discrete emission reduction credit (DERC) may be generated using one of the following strategies or any other method that is approved by the executive director: (A) the installation and operation of pollution control equipment that reduces emissions below the baseline emissions for the facility; or (B) a change in the manufacturing process, other than a shutdown or curtailment, that reduces emissions below the baseline emissions for the facility. (2) A DERC may not be generated using the following strategies: (A) a shutdown or curtailment of an activity at a facility, either permanent or temporary; (B) a modification or discontinuation of any activity that is otherwise in violation of a local, state, or federal requirement; (C) an emission reduction required to comply with any provision under 42 United States Code (USC), Subchapter I regarding tropospheric ozone, or 42 USC, Subchapter IV-A regarding acid deposition control; (D) an emission reduction of hazardous air pollutants, as defined in 42 USC, §7412, from application of a standard promulgated under 42 USC, §7412; (E) an emission reduction from the shifting of activity from one facility to another facility at the same site; (F) an emission reduction credited or used under any other emissions trading program; (G) an emission reduction occurring at a facility that received an alternative emission limitation to meet a state reasonably available control technology requirement, except to the extent that the emissions are reduced below the level that would have been required had the alternative emission limitation not been issued; (H) an emission reduction from a facility authorized in a flexible permit, unless the reduction is permanent and enforceable or the generator can demonstrate that the emission reduction was not used to satisfy the conditions for the facilities under the flexible permit; (I) that portion of an emission reduction funded through a state or federal program, unless specifically allowed under that program; (J) an emission reduction from a facility subject to Division 2, 3, or 6 of this subchapter (relating to Emissions Banking and Trading Allowances; Mass Emissions Cap and Trade Program; and Highly Reactive Volatile Organic Compound Emissions Cap and Trade Program); or (K) an emission reduction from a facility without state implementation plan (SIP) emissions if the facility is located in a nonattainment area. (b) DERC baseline emissions. (1) For a facility located in an area designated as nonattainment for a criteria pollutant, and the pollutant being reduced is either the same criteria pollutant or a precursor of that criteria pollutant, the baseline emissions may not exceed the facility's SIP emissions. If the pollutant being reduced is not the same criteria pollutant for which the area is designated nonattainment or a precursor of that criteria pollutant, then baseline emissions are limited as specified in paragraph (3) of this subsection. (2) The activity and emission rate used to calculate the facility's historical adjusted emissions must be determined from the same two consecutive calendar years. (A) For point sources, the historical adjusted emissions must be from any two consecutive calendar years from the ten consecutive years immediately before the emissions reduction occurs. (B) For area sources, the historical adjusted emissions must be from any two consecutive calendar years from the five consecutive years immediately before the emissions reduction occurs unless detailed operational records are available for more than five years. The historical adjusted emissions for an area source may be determined from two consecutive calendar years up to six to ten consecutive years immediately before the emissions reduction is achieved when detailed operational records are available for those years.(3) For a facility located in an area that is not designated nonattainment for the criteria pollutant being reduced, or the pollutant being reduced is not a precursor of that criteria pollutant, the historical adjusted emissions must be determined from two consecutive calendar years that include or follow the 1990 emission inventory. (4) For emission reduction strategies that exceed 12 months, the baseline emissions are established after the first year of generation and are fixed for the life of each unique emission reduction strategy. A new baseline must be established if the commission adopts a SIP revision for the area where the facility is located. (5) For a facility in existence less than 24 months or not having two complete calendar years of activity data, a shorter period of not less than 12 months may be considered by the executive director. (c) DERC calculation. (1) DERCs are calculated according to the following equation. Attached Graphic(2) For an area source facility, the amount of DERCs calculated will be adjusted based on the quality of the data used to quantify emissions. The adjustment will be:(A) no reduction for the same type of records that are required to be maintained by a point source facility; or (B) a reduction of 15% or 0.1 ton, whichever is greater, for records supporting approved alternative methods according to §101.372(e)(1)(E) of this title (relating to General Provisions).(3) For a facility located in an area designated nonattainment for a criteria pollutant, and the pollutant being reduced is either the same criteria pollutant or a precursor of that criteria pollutant, the sum of the reduction generated under paragraph (1) of this subsection and the total strategy emissions must not be greater than the facility's historical adjusted emissions or SIP emissions, whichever is less. (4) For a facility located in an area that is not designated nonattainment for the criteria pollutant being reduced, or the pollutant being reduced is not a precursor of that criteria pollutant, the sum of the reduction generated under paragraph (1) of this subsection and the total strategy emissions must not be greater than the facility's historical adjusted emissions. (d) DERC certification. (1) An application form specified by the executive director and signed by an authorized account representative must be submitted to the executive director no later than 90 days after the end of the generation period and no later than 90 days after completing each 12 months of generation. (2) A DERC must be quantified in accordance with §101.372(e) of this title. The executive director shall have the authority to inspect and request information to assure that the emission reductions have actually been achieved. (3) An application for DERCs must include, but is not limited to, a completed application form signed by an authorized representative of the applicant along with the following information for each pollutant reduced at each applicable facility: (A) the generation period; (B) a complete description of the generation activity; (C) the amount of DERCs generated; (D) for volatile organic compound reductions, a list of the specific compounds reduced; (E) documentation, including records for approved or approvable methods to quantify emissions, supporting the activity, emission rate, historical adjusted emissions, SIP emissions, strategy emission rate, and strategy activity; (F) for point sources emissions inventory data for the years used to determine the SIP emissions and historical adjusted emissions; (G) the most stringent emission rate for the facility, considering all applicable local, state, and federal requirements; (H) a complete description of the protocol used to calculate the DERC generated; and (I) the actual calculations performed by the generator to determine the amount of DERCs generated.</content><note type="source"><p>Source Note: The provisions of this §101.373 adopted to be effective January 17, 2003, 28 TexReg 83; amended to be effective December 2, 2004, 29 TexReg 11038; amended to be effective October 26, 2006, 31 TexReg 8684; amended to be effective June 25, 2015, 40 TexReg 3848; amended to be effective October 12, 2017, 42 TexReg 5441.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.374"><num value="101.374">§101.374</num><heading>Mobile Discrete Emission Reduction Credit Generation and Certification</heading><content>(a) Method of generation.(1) Mobile discrete emission reduction credits (MDERCs) may be generated by any mobile source emission reduction strategy that creates actual mobile source emission reductions under this division, and is subject to the approval of the executive director. The number of years that an emissions reduction strategy can be used to generate MDERCs is limited by the expected remaining useful life of the mobile source except if a capture and control system is used to reduce marine or locomotive mobile source emissions.(2) MDERCs may not be generated from the following strategies:(A) that portion of reductions funded through a state or federal program, unless specifically allowed under that program;(B) through the transfer of emissions from one mobile source to another mobile source within the same nonattainment area and under common ownership or control; or(C) reduction strategies resulting in secondary emissions increases that exceed limits established under state or federal rules or regulations.(b) MDERC baseline emissions.(1) Mobile source baseline emissions must be calculated with either measured emissions of an appropriately sized sample for the participating mobile sources using a United States Environmental Protection Agency (EPA)-approved test procedure, or estimated emissions of the participating mobile sources using the most recent edition of the EPA on-road or non-road mobile emissions factor model or other model as applicable.(2) The historical adjusted emissions and state implementation plan (SIP) emissions must only include actual emissions that occurred when the mobile source was operating inside a specific nonattainment area.(3) The activity data used to calculate mobile source's historical adjusted emissions must be from any two consecutive calendar years from the five consecutive years immediately before the emissions reduction occurs unless detailed operational records are available for more than five years. If these detailed operational records are available and do not demonstrate decreasing use due to vehicle age or inoperability, the historical adjusted emissions for a mobile source may be determined from two consecutive calendar years up to six to ten consecutive years immediately before the emissions reduction is achieved.(4) For a mobile source in existence less than 24 months or not having two complete calendar years of activity data, a shorter period of not less than 12 months may be approved by the executive director.(5) Baseline emissions for quantifying MDERCs should include, but not be limited to, the following information and data as appropriate:(A) the emission standard to which the mobile source is subject or the emission performance standard to which the mobile source is certified;(B) the estimated or measured in-use emissions levels per unit of use from all significant mobile source emissions sources;(C) the number of mobile sources in the participating group;(D) the type or types of mobile sources by model year; and(E) the actual activity level, hours of operation, or miles traveled by type and model year.(c) MDERC calculation. The quantity of MDERCs must be calculated from the annual difference between the mobile source baseline emissions and the strategy emissions. The MDERC must be based on actual in-use emissions of the modified or substitute mobile source.(1) For mobile sources generating credits from a shutdown, the amount of MDERCs generated will be reduced by 15% or 0.1 ton, whichever is greater.(2) The amount of MDERCs generated will be adjusted to account for the quality of the data used to quantify the emissions. The reduction will be 15% or 0.1 ton, whichever is greater, for records supporting approved alternative methods according to §101.372(e)(1)(E) of this title (relating to General Provisions).(3) If the mobile source is subject to an adjustment based on both the reduction strategy being a shutdown and the quality of the data used to quantify the emissions, the total combined reduction will be 20% or 0.1 ton, whichever is greater.(4) If a capture and control system is used to reduce mobile source emissions, the strategy emissions used in the MDERC calculation must include the mobile source emissions that are not captured by the system, any emissions that are not controlled by the system, and any emissions caused by or as a result of operating and moving the system. The initial owner of the MDERCs is the owner or operator of the capture and control system.(d) Emission offsets. Mobile source reduction strategies that reduce emissions in one criteria pollutant or precursor for which an area is designated as nonattainment or near nonattainment, yet result in an emissions increase from the same mobile source in another criteria pollutant or precursor for which that same area is nonattainment or near nonattainment, must be offset at a 1:1 ratio with discrete emission reduction credits or MERCs.(e) MDERC certification.(1) A designated application form signed by an authorized account representative must be submitted to the executive director no later than 90 days after the end of the generation period, or no later than 90 days after the completion of each 12 months of generation.(2) MDERCs will be determined and certified in accordance with §101.372(e) of this title using:(A) EPA methodologies, when available;(B) actual monitoring results, when available;(C) calculations using the most current EPA mobile emissions factor model or other model as applicable; or(D) calculations using creditable emission reduction measurement or estimation methodologies that satisfactorily address the analytical uncertainties of mobile source emissions reduction strategies. The generator shall collect relevant data sufficient to characterize the process emissions of the affected pollutant and the process activity level for all representative phases of source operation during the period under which the MDERCs are created or used.(3) An application for MDERCs must include, but is not limited to, a completed application form signed by an authorized account representative, along with the following information for each pollutant reduced for each mobile source:(A) the date of the reduction;(B) a complete description of the generation activity;(C) the amount of discrete mobile source emission credits generated;(D) documentation, including records for approved or approvable methods to quantify emissions, supporting the mobile source baseline activity, mobile source baseline emission rate, mobile source baseline emissions, and the mobile source strategy emissions;(E) a complete description of the protocol used to calculate the discrete mobile source emission reduction generated;(F) the actual calculations performed by the generator to determine the amount of discrete mobile source emission credits generated; and(G) a demonstration that the reductions are surplus to all local, state, and federal rules and to emissions modeled in the SIP.</content><note type="source"><p>Source Note: The provisions of this §101.374 adopted to be effective January 17, 2003, 28 TexReg 83; amended to be effective December 2, 2004, 29 TexReg 11038; amended to be effective October 12, 2017, 42 TexReg 5441.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.375"><num value="101.375">§101.375</num><heading>Emission Reductions Achieved Outside the United States</heading><content>(a) A facility may use emission reductions achieved outside the United States of criteria pollutants or precursors of criteria pollutants if the facility meets the requirements of subsection (c) of this section.(b) A facility may use emission reductions achieved outside the United States of criteria pollutants or precursors of criteria pollutants and substitute these reductions for reductions in other criteria pollutants or precursors of criteria pollutants if the facility meets the requirements of subsection (c) of this section; and(1) the reduction is substituted for the reduction of another criteria pollutant and the substitution results in a greater health benefit and is of equal or greater benefit to the overall air quality of the area; or(2) a reduction of an air contaminant for which the area in which the facility is located has been designated as nonattainment or which leads to the formation of a criteria pollutant for which an area has been designated as nonattainment is substituted for any air contaminant for which the area has been designated as nonattainment or leads to the formation of any criteria pollutant for which the area has been designated as nonattainment.(c) The use of reductions outside the United States must be approved by the executive director and the United States Environmental Protection Agency (EPA), and the user of the emission reduction must:(1) demonstrate to the executive director and EPA that the reduction is real, permanent, enforceable, quantifiable, and surplus to any applicable Mexican, federal, state, or local law;(2) demonstrate that the use of the reduction does not cause localized health impacts, as determined by the executive director and EPA;(3) submit all supporting information for calculations and modeling, and any additional information requested by the executive director and EPA; and(4) be located within 100 kilometers of the Texas - Mexico border.(d) This section does not apply to reductions in emissions of lead.</content><note type="source"><p>Source Note: The provisions of this §101.375 adopted to be effective October 26, 2006, 31 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.376"><num value="101.376">§101.376</num><heading>Discrete Emission Credit Use</heading><content>(a) Requirements to use discrete emission credits. Discrete emission credits may be used if the following requirements are met. (1) The user shall have ownership of a sufficient amount of discrete emission credits before the use period for which the specific discrete emission credits are to be used. (2) The user shall hold sufficient discrete emission credits to cover the user's compliance obligation at all times. (3) The user shall acquire additional discrete emission credits during the use period if it is determined the user does not possess enough discrete emission credits to cover the entire use period. The user shall acquire additional credits as allowed under this section prior to the shortfall, or be in violation of this section. (4) The user may acquire and use only discrete emission credits listed in the registry. (5) The user shall obtain executive director approval to use nitrogen oxides (NOX ) discrete emission reduction credits (DERCs) in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties as provided by subsection (f) of this section. (6) A discrete emission credit may not be used unless it is available in the account for the site where it will be used. (b) Use of discrete emission credits. With the exception of uses prohibited in subsection (c) of this section or precluded by a commission order or a condition within an authorization under the same commission account number, discrete emission credits may be used to meet or demonstrate compliance with any facility or mobile regulatory requirement including the following: (1) to exceed any allowable emission level, if the following conditions are met: (A) in ozone nonattainment areas, permitted facilities may use discrete emission credits to exceed permit allowables by no more than 10 tons for NOX or 5 tons for volatile organic compounds in a 12-month period as approved by the executive director. This use is limited to one exceedance, up to 12 months within any 24-month period, per use strategy. The user shall demonstrate that there will be no adverse impacts from the use of discrete emission credits at the levels requested; or (B) at permitted facilities in counties or portions of counties designated as attainment or, attainment/unclassifiable, or unclassifiable, discrete emission credits may be used to exceed permit allowables by values not to exceed the prevention of significant deterioration significance levels as provided in 40 Code of Federal Regulations (CFR) §52.21(b)(23), as approved by the executive director before use. This use is limited to one exceedance, up to 12 months within any 24-month period, per use strategy. The user shall demonstrate that there will be no adverse impacts from the use of discrete emission credits at the levels requested; (2) as new source review (NSR) permit offsets, if the following requirements are met: (A) the user shall obtain the executive director's approval prior to the use of specific discrete emission credits to cover, at a minimum, one year of operation of the new or modified facility in the NSR permit; (B) the amount of discrete emission credits needed for NSR offsets equals the quantity of tons needed to achieve the maximum allowable emission level set in the user's NSR permit. The user shall also purchase and retire enough discrete emission credits to meet the offset ratio requirement in the user's ozone nonattainment area. The user shall purchase and retire either the environmental contribution of 10% or the offset ratio, whichever is higher; and (C) the user shall submit a completed application form specified by the executive director at least 90 days before the start of operation and at least 90 days before continuing operation for any period in which discrete emission credits not included in a prior application will be used as offsets; (3) to comply with the Mass Emissions Cap and Trade Program requirements as provided by §101.356(h) of this title (relating to Allowance Banking and Trading); or (4) to comply with Chapter 115 or 117 of this title (relating to Control of Air Pollution from Volatile Organic Compounds; and Control of Air Pollution from Nitrogen Compounds), as allowed. (c) Discrete emission credit use prohibitions. A discrete emission credit may not be used under this division: (1) before it has been acquired by the user; (2) for netting to avoid the applicability of federal and state NSR requirements; (3) to meet (as codified in 42 United States Code (USC), Federal Clean Air Act (FCAA)) requirements for: (A) new source performance standards under FCAA, §111 (42 USC, §7411); (B) lowest achievable emission rate standards under FCAA, §173(a)(2) (42 USC, §7503(a)(2)); (C) best available control technology standards under FCAA, §165(a)(4) (42 USC, §7475(a)(4)) or Texas Health and Safety Code, §382.0518(b)(1); (D) hazardous air pollutants standards under FCAA, §112 (42 USC, §7412), including the requirements for maximum achievable control technology; (E) standards for solid waste combustion under FCAA, §129 (42 USC, §7429); (F) requirements for a vehicle inspection and maintenance program under FCAA, §182(b)(4) or (c)(3) (42 USC, §7511a(b)(4) or (c)(3)); (G) ozone control standards set under FCAA, §183(e) and (f) (42 USC, §7511b(e) and (f)); (H) clean-fueled vehicle requirements under FCAA, §246 (42 USC, §7586); (I) motor vehicle emissions standards under FCAA, §202 (42 USC, §7521); (J) standards for non-road vehicles under FCAA, §213 (42 USC, §7547); (K) requirements for reformulated gasoline under FCAA, §211(k) (42 USC, §7545); or (L) requirements for Reid vapor pressure standards under FCAA, §211(h) and (i) (42 USC, §7545(h) and (i)); (4) to allow an emissions increase of an air contaminant above a level authorized in a permit or other authorization that exceeds the limitations of §106.261 or §106.262 of this title (relating to Facilities (Emission Limitations); and Facilities (Emission and Distance Limitations)) except as approved by the executive director and the United States Environmental Protection Agency (EPA). This paragraph does not apply to limit the use of discrete emission credits in lieu of allowances under §101.356 of this title; (5) to authorize a facility whose emissions are enforceably limited to below applicable major source threshold levels, as defined in §122.10 of this title (relating to General Definitions), to operate with actual emissions above those levels without triggering applicable requirements that would otherwise be triggered by such major source status; (6) to exceed an allowable emission level where the exceedance would cause or contribute to a condition of air pollution as determined by the executive director; or (7) in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties, if the NOX DERC usage requested exceeds the limit specified in subsection (f) of this section. (d) Notice of intent to use. (1) A completed application form specified by the executive director, signed by an authorized representative of the applicant, must be submitted to the executive director in accordance with the following requirements. (A) Discrete emission credits may be used only after the applicant has submitted the notice and received executive director approval. (B) The application must be submitted: (i) except as provided in subsection (f)(4) of this section, for NOX DERC use in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties, by August 1 before the beginning of the calendar year in which the DERCs are intended for use; (ii) for use for the Mass Emissions Cap and Trade Program in accordance with §101.356 of this title, by October 1 of the control period in which the DERC are intended for use; or (iii) for use for NSR offsets, as required by subsection (b)(2)(C) of this section; or (iv) for all other use, at least 45 days before the first day of the use period if the discrete emission credits were generated from a facility, 90 days if the discrete emission credits were generated from a mobile source, and every 12 months thereafter for each subsequent year if the use period exceeds 12 months. (C) A copy of the application must also be sent to the federal land manager 30 days prior to use if the user is located within 100 kilometers of a Class I area, as listed in 40 CFR Part 81 (2001). (D) The application must include, but is not limited to, the following information for each use: (i) the applicable state and federal requirements that the discrete emission credits will be used to comply with and the intended use period; (ii) the amount of discrete emission credits needed; (iii) the baseline emission rate, activity level, and total emissions for the applicable facility or mobile source; (iv) the actual emission rate, activity level, and total emissions for the applicable facility or mobile source; (v) the most stringent emission rate and the most stringent emission level for the applicable facility or mobile source, considering all applicable local, state, and federal requirements; (vi) a complete description of the protocol, as submitted by the executive director to the EPA for approval, used to calculate the amount of discrete emission credits needed; (vii) the actual calculations performed by the user to determine the amount of discrete emission credits needed; (viii) the date that the discrete emission credits were acquired; (ix) the discrete emission credit generator and the original certificate number of the discrete emission credits acquired; (x) the price of the discrete emission credits acquired, except for transfers between sites under common ownership or control; (xi) a statement that due diligence was taken to verify that the discrete emission credits were not previously used, the discrete emission credits were not generated as a result of actions prohibited under this regulation, and the discrete emission credits will not be used in a manner prohibited under this regulation; and (xii) a certification of use, that must contain certification under penalty of law by a responsible official of the user of truth, accuracy, and completeness. This certification must state that based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete. (2) Discrete emission credit use calculation. (A) To calculate the amount of discrete emission credits necessary to comply with §§117.123, 117.320, 117.323, 117.423, 117.1020, 117.1220, or 117.3020 of this title (relating to Source Cap; and System Cap), a user may use the equations listed in those sections, or the following equations. (i) For the rolling average cap: Attached Graphic(ii) For maximum daily cap: Attached Graphic(B) The amount of discrete emission credits needed to demonstrate compliance or meet a regulatory requirement is calculated as follows. Attached Graphic(C) The amount of discrete emission credits needed to exceed an allowable emissions level is calculated as follows. Attached Graphic(D) The user shall retire 10% more discrete emission credits than are needed, as calculated in this paragraph, to ensure that the facility or mobile source environmental contribution retirement obligation will be met. (E) If the amount of discrete emission credits needed to meet a regulatory requirement or to demonstrate compliance is greater than 10 tons, an additional 5.0% of the discrete emission credits needed, as calculated in this paragraph, must be acquired to ensure that sufficient discrete emission credits are available to the user with an adequate compliance margin. (3) A user may submit a late application in the case of an emergency, or other exigent circumstances, but the notice must be submitted before the discrete emission credits can be used. The user shall include a complete description of the situation in the notice of intent to use. All other notices submitted less than 45 days prior to use, or 90 days prior to use for a mobile source, will be considered late and in violation. (4) The user is responsible for determining the credits it will purchase and notifying the executive director of the selected generating facility or mobile source in the application. If the generator's credits are rejected or the application is incomplete, the use of discrete emission credits by the user may be delayed by the executive director. The user cannot use any discrete emission credits that have not been certified by the executive director. The executive director may reject the use of discrete emission credits by a facility or mobile source if the credit and use cannot be demonstrated to meet the requirements of this section. (5) If the facility is in an area with an ozone season less than 12 months, the user shall calculate the amount of discrete emission credits needed for the ozone season separately from the non-ozone season. (e) Notice of use. (1) The user shall calculate: (A) the amount of discrete emission credits used, including the amount of discrete emission credits retired to cover the environmental contribution, as described in subsection (d)(2)(D) of this section, associated with actual use; and (B) the amount of discrete emission credits not used, including the amount of excess discrete emission credits that were purchased to cover the environmental contribution, as described in subsection (d)(2)(D) of this section, but not associated with the actual use, and available for future use. (2) Discrete emission credit use is calculated by the following equations. (A) The amount of discrete emission credits used to demonstrate compliance or meet a regulatory requirement is calculated as follows. Attached Graphic(B) The amount of discrete emission credits used to comply with permit allowables is calculated as follows. Attached Graphic(3) A form specified by the executive director for using credits must be submitted to the executive director in accordance with the following requirements. (A) The notice must be submitted within 90 days after the end of the use period. Each use period must not exceed 12 months. (B) The notice is to be used as the mechanism to update or amend the notice of intent to use and must include any information different from that reported in the notice of intent to use, including, but not limited to, the following items: (i) purchase price of the discrete emission credits obtained prior to the current use period, except for transfers between sites under common ownership or control; (ii) the actual amount of discrete emission credits possessed during the use period; (iii) the actual emissions during the use period for volatile organic compounds and NOX ; (iv) the actual amount of discrete emission credits used; (v) the actual environmental contribution; and (vi) the amount of discrete emission credits available for future use. (4) Discrete emission credits that are not used during the use period are surplus and remain available for transfer or use by the holder. In addition, any portion of the calculated environmental contribution not attributed to actual use is also available. (5) The user is in violation of this section if the user submits the report of use later than the allowed 90 days following the conclusion of the use period. (f) DERC use in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties. (1) For the 2015 calendar year, the use of NOX DERCs in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties may not exceed 42.8 tons per day. (2) Beginning in the 2016 calendar year, the use of NOX DERCs in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties may not exceed 17.0 tons per day. (3) If the total number of DERCs submitted for the upcoming calendar year in all applications received by the August 1 deadline in subsection (d)(1)(B)(i) of this section is greater than the applicable limit in paragraph (1) or (2) of this subsection, the executive director shall apportion the number of DERCs for use. (A) In determining the amount of DERC use to approve for each application, the executive director may take into consideration: (i) the total number of DERCs existing in the nonattainment area bank; (ii) the total number of DERCs submitted for use in the upcoming control period; (iii) the proportion of DERCs requested for use to the total amount requested; (iv) the amount of DERCs required by the applicant for compliance; (v) the technological and economic aspects of other compliance options available to the applicant; and (vi) the location of the facilities for which owners or operators are requesting use of DERCs. (B) The executive director shall consider the appropriate amount of DERCs allocated for each application submitted on a case-by-case basis. (4) If the total number of DERCs submitted for use during the upcoming calendar year in all applications received by the August 1 deadline in subsection (d)(1)(B)(i) of this section is less than the limit, the executive director may: (A) approve all requests for DERC usage provided that all other requirements of this section are met; and (B) consider any late application submitted as provided under subsection (d)(3) of this section that is not an Electric Reliability Council of Texas, Inc. (ERCOT)-declared emergency situation as defined in paragraph (5) of this subsection, but will not otherwise approve a late submittal that would exceed the limit established in this subsection. (5) If the applications are submitted in response to an ERCOT-declared emergency situation, the request will not be subject to the limit established in this subsection and may be approved provided all other requirements are met. For the purposes of this paragraph, an ERCOT-declared emergency situation is defined as the period of time that an ERCOT-issued emergency notice or energy emergency alert (EEA) (as defined in ERCOT Nodal Protocols, Section 2: Definitions and Acronyms (June 1, 2012) and issued as specified in ERCOT Nodal Protocols, Section 6: Adjustment Period and Real-Time Operations (June 1, 2012)) is applicable to the serving electric power generating system. The emergency situation is considered to end upon expiration of the emergency notice or EEA issued by ERCOT. (g) Inter-pollutant use of discrete emission credits. With prior approval from the executive director and the EPA, a NOX or VOC discrete emission credit may be used to meet the nonattainment new source review offset requirements for the other ozone precursor if photochemical modeling demonstrates that overall air quality and the regulatory design value in the nonattainment area of use will not be adversely affected by the substitution.</content><note type="source"><p>Source Note: The provisions of this §101.376 adopted to be effective January 17, 2003, 28 TexReg 83; amended to be effective December 2, 2004, 29 TexReg 11038; amended to be effective October 26, 2006, 31 TexReg 8684; amended to be effective August 16, 2007, 32 TexReg 4985; amended to be effective January 1, 2009, 33 TexReg 10455; amended to be effective June 25, 2015, 40 TexReg 3848; amended to be effective October 12, 2017, 42 TexReg 5441.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.378"><num value="101.378">§101.378</num><heading>Discrete Emission Credit Banking and Trading</heading><content>(a) The credit registry. All discrete emission credit generators, users, and holders will be included in the commission's credit registry.(1) All notices submitted by a generator, holder, or user will be reviewed for credibility; and when deemed certified, posted to the credit registry.(2) The credit registry will assign a unique number to each certificate which will include the amount of emission reductions generated to the tenth of a ton.(3) The credit registry will maintain a listing of all credits available or used for each ozone nonattainment area. One combined listing for all the counties or portions of counties designated as attainment or unclassifiable will be provided by the credit registry.(4) The registry shall not contain proprietary information.(b) Life of a discrete emission credit. A discrete emission credit is available for use after the application form specified by the executive director has been received, deemed creditable by the executive director, and deposited in the commission credit registry in accordance with subsection (a) of this section, and may be used anytime thereafter except as stated in this subsection. All credits are deposited in the credit registry and reported as available credits until they are used or withdrawn. A DERC generated from a shutdown may not be used.(c) Trading. Discrete emission credits are freely transferable in whole or in part, and may be traded or sold to a new owner at any time after certification.(1) Before the transfer, the seller shall submit to the executive director a completed application form specified by the executive director.(2) The executive director will issue a new certificate number to the purchaser reflecting the discrete emission credits purchased, and a new certificate number to the seller reflecting any remaining discrete emission credits available. A trade is considered final only after the executive director grants approval of the transaction.(3) The trading of discrete emission credits may be discontinued by the executive director in whole or in part and in any manner, with commission approval, as a remedy for problems resulting from trading in a localized area of concern.</content><note type="source"><p>Source Note: The provisions of this §101.378 adopted to be effective January 17, 2003, 28 TexReg 83; amended to be effective October 26, 2006, 31 TexReg 8684; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.379"><num value="101.379">§101.379</num><heading>Program Audits and Reports</heading><content>(a) The executive director will audit this program every three years.(1) The audit will evaluate the timing of credit generation and use, the impact of the program on the state's attainment demonstration and the emissions of hazardous air pollutants, the availability and cost of credits, compliance by the participants, and any other elements the executive director may choose to include.(2) The executive director will recommend measures to remedy any problems identified in the audit. The trading of discrete emission credits may be discontinued by the executive director in part or in whole and in any manner, with commission approval, as a remedy for problems identified in the program audit.(3) The audit data and results will be completed and submitted to the United States Environmental Protection Agency (EPA) and made available for public inspection within six months after the audit begins.(b) No later than February 1 of each calendar year, the executive director shall develop and make available to the general public and the EPA a report that includes the following information for the previous calendar year:(1) the amount of each pollutant emission credits generated under this division;(2) the amount of each pollutant emission credits used under this division;(3) a summary of all trades completed under this division; and(4) the amount of discrete emission reduction credits approved for use under §101.376(f) of this title (relating to Discrete Emission Credit Use).</content><note type="source"><p>Source Note: The provisions of this §101.379 adopted to be effective January 17, 2003, 28 TexReg 83; amended to be effective January 1, 2009, 33 TexReg 10455; amended to be effective May 2, 2013, 38 TexReg 2618; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.390"><num value="101.390">§101.390</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act or in §3.2 or §101.1 of this title (relating to Definitions), the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition, the following words and terms, when used in this division, have the following meanings, unless the context clearly indicates otherwise.(1) Affected facility--A facility subject to §115.720 or §115.760 of this title (relating to Applicability and Definitions; and Applicability and Cooling Tower Heat Exchange System Definitions) that is located at a site that is subject to this division.(2) Allowance--The authorization to emit one ton of highly reactive volatile organic compounds, expressed in tenths of a ton, during a control period.(3) Authorized account representative--The responsible person who is authorized in writing to transfer and otherwise manage allowances for the site.(4) Baseline emissions period--The two consecutive control periods from 2006 - 2009 with the highest monitored average actual highly reactive volatile organic compound emissions for the purpose of establishing baseline emissions used for the allocation of allowances, except as allowed under §101.394(a)(2) and (3) of this title (relating to Allocation of Allowances).(5) Broker--A person not required to participate in the requirements of this division who opens an account under this division only for the purpose of banking and trading allowances.(6) Broker account--The account where allowances held by a broker are recorded. Allowances may not be used to satisfy compliance requirements for this division while held in a broker account.(7) Compliance account--The account in which allowances held by the owner or operator of a site are recorded for the purposes of meeting the requirements of this division for each affected facility at that site.(8) Control period--The 12-month period beginning January 1 and ending December 31 of each year. The initial control period began January 1, 2007.(9) Highly reactive volatile organic compounds--As defined in §115.10 of this title (relating to Definitions).(10) Houston-Galveston-Brazoria (HGB) ozone nonattainment area--An area consisting of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties.(11) Industry sector--One of the following sectors of industry in which participants of the Highly Reactive Volatile Organic Compounds (HRVOC) Emissions Cap and Trade program are assigned, according to the process type and products from which the largest share of HRVOC emissions is associated, for the purpose of assigning an industry sector share under the allocation equation located in §101.394(a)(1) of this title (relating to Allocation of Allowances): petroleum refining, non-polymer chemical producers, polymer producers, and storage/loading/other.(12) Level of activity--The amount of highly reactive volatile organic compounds (HRVOCs) in pounds produced as an intermediate, by-product, or final product or used by a process unit during a given period of time, but excluding any recycled HRVOCs internal to the process unit.(13) Site--As defined in §122.10 of this title (relating to General Definitions).(14) Uncontrolled emissions--The total emissions during routine normal operations from each affected facility calculated as pre-control using the applicable control efficiency for the purpose of determining site allocations under §101.394(a)(1) of this title (relating to Allocation of Allowances).(15) Vintage allowance--An allowance that is not used for compliance during the control period in which it is allocated and remains available for use only in the following control period.</content><note type="source"><p>Source Note: The provisions of this §101.390 adopted to be effective December 23, 2004, 29 TexReg 11592; amended to be effective April 1, 2010, 35 TexReg 2556; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.391"><num value="101.391">§101.391</num><heading>Applicability</heading><content>(a) This division applies to each site in the Houston-Galveston-Brazoria ozone nonattainment area with one or more affected facilities. Affected facilities include vent gas streams, flares, and cooling tower heat exchange systems that emit or have the potential to emit highly reactive volatile organic compounds.(b) For the purpose of compliance with Chapter 115, Subchapter H, Division 1 or 2 of this title (relating to Vent Gas Control; and Cooling Tower Heat Exchange Systems), each site that meets the applicability requirements of this section will always be subject to this division unless exempted under §101.392 of this title (relating to Exemptions).(c) The banking and trading requirements of this division apply to a broker and a broker account.</content><note type="source"><p>Source Note: The provisions of this §101.391 adopted to be effective December 23, 2004, 29 TexReg 11592; amended to be effective April 1, 2010, 35 TexReg 2556; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.392"><num value="101.392">§101.392</num><heading>Exemptions</heading><content>(a) A site in the Houston-Galveston-Brazoria ozone nonattainment area that has the potential to emit, as defined in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions), 10 tons per year or less of highly reactive volatile organic compounds from all affected facilities at the site is exempt from the requirements of this division.(b) A site in Brazoria, Chambers, Fort Bend, Galveston, Liberty, Montgomery, or Waller County is exempt from the requirements of this division except for §101.401(a) - (e) of this title (relating to Level of Activity Certification). The commission may revoke this exemption upon public notice of this revocation. If the exemption is revoked, the owner or operator of a site subject to this division located in Brazoria, Chambers, Fort Bend, Galveston, Liberty, Montgomery, or Waller County shall comply within 180 days of public notice.</content><note type="source"><p>Source Note: The provisions of this §101.392 adopted to be effective December 23, 2004, 29 TexReg 11592; amended to be effective April 1, 2010, 35 TexReg 2556; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.393"><num value="101.393">§101.393</num><heading>General Provisions</heading><content>(a) An allowance may be used only for the purposes described in this division and only for an affected facility. An allowance may not be used for any purpose that is not described in this division or to meet or exceed the limitations authorized under Chapter 116, Subchapter B of this title (relating to New Source Review Permits), or any other applicable local, state, or federal requirement.(b) No later than March 1 after each control period, the quantity of allowances in a site's compliance account must be equal to or greater than the total highly reactive volatile organic compound (HRVOC) emissions from each affected facility at the site during the control period.(c) An allowance may not be used to satisfy netting requirements under Chapter 116, Subchapter B, Divisions 5 and 6 of this title (relating to Nonattainment Review Permits; and Prevention of Significant Deterioration Review).(d) An allowance may be used to offset volatile organic compound (VOC) emissions from an affected facility if such use is authorized in a nonattainment new source review (NNSR) permit issued under Chapter 116, Subchapter B of this title with the following conditions.(1) The owner or operator shall use a permanent allowance allocation stream equal to the amount specified in the NNSR permit to offset VOC emissions from an affected facility. A vintage allowance cannot be used as an offset. An allowance used for offsets may not be banked, traded, or used for any other purpose except as allowed in §101.396(e) of this title (relating to Allowance Deductions).(2) At least 30 days before the start of operation of an affected facility using allowances as offsets, the owner or operator shall submit an application form specified by the executive director.(A) Except as provided in paragraph (3) of this subsection, the executive director shall permanently set aside in the site's compliance account an allowance used for the one-to-one portion of the offset ratio. If an allowance set aside for offsets devalues in accordance with §101.394(a)(1) or (f) of this title (relating to Allocation of Allowances), the owner or operator shall submit the application at least 30 days before the shortfall to revise the amount of allowances set aside for offsets. At the end of each control period, the executive director shall deduct from the site's compliance account all allowances set aside as offsets.(B) The executive director shall permanently retain an allowance used for the environmental contribution portion of the offset ratio. An allowance used for this purpose cannot be used for compliance with this division or devalued due to future regulatory changes except as required in §101.394(a)(1) of this title.(3) The owner or operator may submit a request to the executive director to release an allowance used for offsets. If approved, the executive director will release the allowances for use in the control period following the date that the request is submitted. Allowances will not be released retroactively for any previous control periods. A request may be submitted if the owner or operator:(A) receives authorization in the NNSR permit for the affected facility to use an alternative means of compliance for any portion of the VOC offset requirement equivalent to the amount of allowances the owner or operator requests to have released for the affected facility; or(B) permanently shuts down the affected facility, except that an allowance used for the environmental contribution portion of the offset ratio does not qualify for release under this paragraph.(e) An allowance does not constitute a security or a property right.(f) An allowance will be allocated, traded, and used in tenths of tons. The number of allowances will be rounded up to the nearest tenth of a ton when determining allowances used.(g) The owner or operator shall use one compliance account for all affected facilities located at the same site and are under common ownership or control.(h) The executive director shall maintain a registry of the allowances in each compliance account and broker account. The registry will not contain proprietary information.(i) The owner or operator of an affected facility may certify reductions from an affected facility as VOC emission reduction credits (ERCs), provided that:(1) an enforceable and permanent reduction of annual allowances is approved by the executive director at a ratio of 1.0 ton of allowances per year for each 1.0 ton per year of ERCs generated from HRVOC reductions; and(2) all applicable requirements of Division 1 of this subchapter (relating to Emission Credit Program) are met.(j) If there is a change in ownership of a site subject to this division, the new owner of the site is responsible for complying with the requirements of this division beginning with the control period during which the site was purchased. The new owner shall contact the executive director to request a compliance account for the site. The new owner must acquire allowances in accordance with §101.399 of this title (relating to Allowance Banking and Trading).</content><note type="source"><p>Source Note: The provisions of this §101.393 adopted to be effective December 23, 2004, 29 TexReg 11592; amended to be effective April 1, 2010, 35 TexReg 2556; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.394"><num value="101.394">§101.394</num><heading>Allocation of Allowances</heading><content>(a) The executive director shall deposit allowances into a compliance account as follows. (1) For a site located in Harris County, allowances will be determined using the following equation: Attached Graphic(2) For a site in Harris County not in operation or with HRVOC emissions that are not representative of permitted normal routine operation due to an authorized modification that resulted in an HRVOC emission reduction during the baseline emissions period, the owner or operator may request from the executive director the use of any allowance stream acquired from facilities previously participating in the HRVOC Emissions Cap and Trade program in lieu of reallocation until the alternate baseline emissions are established for the site, according to the following: (A) this allowance stream is less than the HRVOC permit allowable limit in effect at the time the facility commences operation; (B) the baseline emissions period for any site under this paragraph will be any consecutive 24 months from 2010 - 2012; and (C) beginning with the 2014 control period, all sites will receive an allocation in accordance with the methodology under paragraph (1) of this subsection. (3) A site meeting the following conditions may request to use an alternative baseline emissions period consisting of the two consecutive calendar-year control periods immediately preceding the baseline emissions period defined under §101.390 of this title (relating to Definitions): (A) the site used continuous flow rate monitoring and speciation of HRVOC to determine HRVOC emissions during the alternative baseline period; (B) the site had permanent, voluntary, and quantifiable HRVOC emission reductions in an amount equal to or greater than 25 tons resulting in a site-wide reduction in HRVOC emissions of at least 25% as calculated by comparing the average HRVOC emissions from the alternate baseline period to the baseline emissions period defined under §101.390 of this title; (C) qualifying HRVOC emission reductions must have been made enforceable by a permit application submitted under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) or other submittal to the executive director no later than April 1, 2010; and (D) a request for an alternative baseline period must be received by the executive director no later than July 1, 2010. (4) For a site located in Brazoria, Chambers, Fort Bend, Galveston, Liberty, Montgomery, and Waller Counties, allowances will be determined using the following equation. Attached Graphic(5) Uncontrolled emissions for affected facility types for use in determining site allocations under paragraph (1) of this subsection must be calculated as follows. (A) For flares, the uncontrolled emissions are equal to actual average HRVOC emissions from routine normal operation during the baseline emissions period for that facility divided by one minus the average percent control efficiency specifications for flares in §115.725(d) of this title (relating to Monitoring and Testing Requirements). (B) For heaters, boilers, furnaces, thermal and catalytic oxidizers, and other combustion control devices combusting HRVOC streams, the uncontrolled emissions must be calculated by dividing actual average emissions from routine normal operation during the baseline emissions period for each facility by one minus 99%, or by one minus the actual monitored HRVOC control efficiency for the facility, not to exceed 99.9%, if that facility has demonstrated the actual monitored HRVOC control efficiency through stack performance testing. (C) For any other facility without a demonstrated combustion control efficiency, the control efficiency is equal to zero; therefore, the uncontrolled emissions will be equal to the actual HRVOC emissions from routine normal operation. (D) For a site that employs a flare or vent gas recovery or flare minimization control strategy that is not requesting the use of an alternative baseline emissions period under paragraph (3) of this subsection, the owner or operator may request to include the amount of any quantifiable reduction in actual HRVOC emissions attributable to the use of flare or vent gas recovery as uncontrolled emissions, subject to approval by the executive director. The amount of quantified reductions is equal to the difference of the average actual HRVOC emissions from routine normal operation during a consecutive 12-month period before the 2006 - 2009 baseline emissions period and the implementation of the HRVOC gas recovery or flare minimization control strategy and the enforceable allowable HRVOC permit limit for the affected facility after the recovery-based emissions reduction strategy implementation. The average actual HRVOC emissions used for quantifying the reductions under this subparagraph must be determined through continuous flow rate monitoring and HRVOC speciation testing. This allowable emissions limit must be made enforceable through a permit application submitted under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) to the executive director no later than April 1, 2010. Credit allocated for reductions due to flare or vent gas recovery cannot also be creditable if the HRVOC stream is sent to another control device. The creditable emissions from flare gas recovery calculated in this subparagraph are then converted to uncontrolled emissions through the use of the average control efficiency specifications under §115.725(d) of this title. (E) For a site that has purchased HRVOC allowance streams, uncontrolled emissions must be the greater of the uncontrolled emissions calculated under subparagraphs (A) - (C) of this paragraph, or the sum of the original existing HRVOC allowance allocated according to the previous allocation methodology and the amount of the allowance stream in tons. If a site's actual two-high year emissions is less than the sum of its original existing HRVOC allowance and the amount of the allowance stream in tons, the owner or operator shall add the difference to the uncontrolled emissions as actual emissions. (b) The level of activity of a site will be determined by summing the levels of activity from the chosen 12 consecutive month period for each process unit, as defined in §115.10 of this title (relating to Definitions), located at the site that produce one or more HRVOCs as an intermediate, by-product, or final product or that use one or more HRVOCs as a raw material or intermediate to produce a product. (c) A site in Harris County subject to the requirements of this division that receives an HRVOC allocation of less than 5.0 tons will be eligible to receive a minimum allocation of 5.0 tons of HRVOC allowances per year. A site subject to the requirements of this division that receives an HRVOC allocation of greater than or equal to 5.0 tons but less than 10.0 tons will be eligible to receive a minimum allocation of 10.0 tons of HRVOC allowances per year. This provision does not apply if the site's allocation falls below a minimum allocation only because of a transfer of part or all of the site's allocation. (d) The executive director will deposit allowances into each compliance account by January 1 of each year. (e) The executive director may adjust the deposits for any control period to reflect new or existing state implementation plan requirements. (f) The executive director may add or deduct allowances from compliance accounts based on the review of reports required under §101.400 of this title (relating to Reporting).</content><note type="source"><p>Source Note: The provisions of this §101.394 adopted to be effective December 23, 2004, 29 TexReg 11592; amended to be effective April 1, 2010, 35 TexReg 2556; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.396"><num value="101.396">§101.396</num><heading>Allowance Deductions</heading><content>(a) The executive director shall deduct from a site's compliance account an amount of allowances equal to the total highly reactive volatile organic compounds (HRVOC) emissions from each affected facility at the site during the previous control period. The amount of HRVOC emissions must be quantified using the monitoring and testing protocols established in §115.725 and §115.764 of this title (relating to Monitoring and Testing Requirements), as appropriate.(b) The amount of HRVOC emissions from an affected facility must be calculated for each hour of the year and summed to determine the annual emissions for compliance. For emissions from emissions events subject to the requirements of §101.201 of this title (relating to Emissions Event Reporting and Recordkeeping Requirements) or emissions from scheduled maintenance, startup, or shutdown activities subject to the requirements of §101.211 of this title (relating to Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements), the hourly emissions to be included in the summation may not exceed the short-term limit of §115.722(c) or §115.761(c) of this title (relating to Site-wide Cap and Control Requirements; and Site-wide Cap).(c) If the monitoring and testing data required under subsection (a) of this section does not exist or is unavailable, the owner or operator of the site shall determine the HRVOC emissions for that period of time using the following methods in the following order: continuous monitoring data; periodic monitoring data; testing data; manufacturer's data; and engineering calculations.(1) When reporting the amount of HRVOC emissions under this subsection, the owner or operator of the site shall also submit the justification for not using the methods in subsection (a) of this section and the justification for the method used.(2) If emissions are quantified under this subsection due to non-compliance with the monitoring and testing required under subsection (a) of this section, the executive director shall deduct allowances from a site's compliance account in an amount equivalent to the HRVOC emissions quantified under this subsection plus an additional 10%.(d) When deducting allowances from the compliance account of a site for a control period, the executive director will deduct the allowances beginning with the most recently allocated allowances before deducting vintage allowances.(e) The amount of allowances deducted from a site's compliance account under subsection (a) of this section will be reduced by the amount of allowances deducted in accordance with §101.393(d)(2)(A) of this title (relating to General Provisions).(f) If the total actual HRVOC emissions from the affected facilities during a control period exceed the amount of allowances in the site's compliance account on March 1 following that control period, the executive director will reduce allowances for the next control period by an amount equal to the emissions exceeding the allowances in the site's compliance account plus an additional 10%.(1) If the site's compliance account does not hold sufficient allowances to accommodate this reduction, the executive director shall issue a Notice of Deficiency requiring the owner or operator to obtain sufficient allowances within 30 days of the notice.(2) These actions do not preclude additional enforcement action by the executive director.</content><note type="source"><p>Source Note: The provisions of this §101.396 adopted to be effective December 23, 2004, 29 TexReg 11592; amended to be effective April 1, 2010, 35 TexReg 2556; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.399"><num value="101.399">§101.399</num><heading>Allowance Banking and Trading</heading><content>(a) An allowance allocated for a control period that is not used for compliance for that control period may be banked as a vintage allowance for use in demonstrating compliance for the next control period under §101.396 of this title (relating to Allowance Deductions) or traded.(b) An allowance that has not expired or been used may be traded at any time during a control period except as provided by this section.(c) At least 30 days before the allowances are deposited into the buyer's account, the seller shall submit the appropriate trade application to the executive director. The completed application must include the amount of allowances to be traded and, except for transactions between sites under common ownership or control, the purchase price per ton of allowances traded.(1) To trade a current allowance or vintage allowance for a single year, the seller shall submit an application form specified by the executive director. Trades involving allowances needed for compliance with a control period must be submitted on or before January 30 of the following control period.(2) To permanently trade ownership of any portion of the allowances allocated annually to an individual facility, the seller shall submit an application form specified by the executive director.(3) To trade any portion of the allowances that are scheduled to be allocated to an individual facility in a future control period, the seller shall submit an application form specified by the executive director.(d) All information regarding the quantity and sales price of allowances will be made available to the public as soon as practicable.(e) The executive director will send letters to the seller and buyer if the trade is approved or denied. If approved, the trade is final upon the date of the letter from the executive director.(f) Allowances that were provided under §101.394(a)(2) of this title (relating to Allocation of Allowances) are not eligible for trade.(g) Allowances generated from a site located in counties other than Harris County may not be used at a site located in Harris County. Allowances generated from a site located in Harris County may not be used at a site located in counties other than Harris County.(h) Only an authorized account representative may trade allowances.(i) Allowances subject to an approved transaction will be deposited into the buyer's account within 30 days of receipt of a completed trade application.</content><note type="source"><p>Source Note: The provisions of this §101.399 adopted to be effective December 23, 2004, 29 TexReg 11592; amended to be effective April 1, 2010, 35 TexReg 2556; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.400"><num value="101.400">§101.400</num><heading>Reporting</heading><content>(a) No later than March 31 after each control period, the owner or operator of each site shall submit a completed annual compliance report specified by the executive director to the executive director, which must include the following:(1) the total amount of actual HRVOC emissions from each affected facility at the site during the preceding control period;(2) the method or methods used to determine the actual HRVOC emissions for each affected facility, including, but not limited to, monitoring protocol and results, calculation methodologies, and emission factors; and(3) a summary of all final transactions for the preceding control period.(b) For the owner or operator of a site failing to submit an annual compliance report by the required deadline in subsection (a) of this section, the executive director may withhold approval of any proposed trades from that site involving allowances allocated for the control period for which the report is due or to be allocated in subsequent control periods.(c) The owner or operator of a site subject to this division that no longer has authorization to operate any affected facilities may request a waiver from the reporting requirements in this section. If approved, the annual compliance report will not be required until a new affected facility is authorized at the site.</content><note type="source"><p>Source Note: The provisions of this §101.400 adopted to be effective December 23, 2004, 29 TexReg 11592; amended to be effective April 1, 2010, 35 TexReg 2556; amended to be effective June 25, 2015, 40 TexReg 3848.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.401"><num value="101.401">§101.401</num><heading>Level of Activity Certification</heading><content>(a) No later than April 30, 2005, the owner or operator of each site subject to this division will submit to the executive director a completed Form ECT-3H, Highly-Reactive Volatile Organic Compound Emissions Cap and Trade Level of Activity Certification Form.(b) For each process unit subject to this division, the owner or operator will certify in the ECT-3H form the level of activity for the selected 12 consecutive months during the period of 2000 through 2004.(c) The owner or operator will attach to the ECT-3H form information and documentation necessary to support the proposed level of activity baseline.(d) The owner or operator of the site may mark any portion of the ECT-3H form, or supporting information and documentation, as confidential under Texas Health and Safety Code, §382.041.(e) In conjunction with submission of the ECT-3H form, the owner or operator of the site subject to this division will provide enforceable documentation of the maximum allowable emission rate of highly-reactive volatile organic compounds from facilities located at that site.(f) No later than July 1, 2010, the owner or operator of each site subject to this division will submit to the executive director a completed Form ECT-6H, Highly Reactive Volatile Organic Compound Emissions Cap and Trade Baseline Emissions Certification Form.(g) For each site subject to this division, the owner or operator will certify in the ECT-6H form the two highest consecutive calendar-year control periods selected from the period of 2006 - 2009 to establish the baseline emissions period.</content><note type="source"><p>Source Note: The provisions of this §101.401 adopted to be effective December 23, 2004, 29 TexReg 11592; amended to be effective April 1, 2010, 35 TexReg 2556.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.403"><num value="101.403">§101.403</num><heading>Program Audits and Reports</heading><content>(a) No later than three years after the effective date of this division, and every three years thereafter, the executive director will audit this program.(1) The audit will evaluate the impact of the program on the state's ozone attainment demonstration, the availability and cost of allowances, compliance by the participants, and any other elements the executive director may choose to include.(2) The executive director will recommend measures to remedy any problems identified in the audit. The trading of allowances may be limited or discontinued by the executive director in part or in whole and in any manner, with commission approval, as a remedy for problems identified in the program audit.(3) The audit data and results will be completed and submitted to the United States Environmental Protection Agency and made available for public inspection within six months after the audit begins.(b) No later than June 30, following the end of each control period, the executive director shall develop and make available to the general public and the United States Environmental Protection Agency, a report that includes:(1) number of allowances allocated to each compliance account;(2) total number of allowances allocated under this division;(3) number of actual highly-reactive volatile organic compound allowances subtracted from each compliance account based on the actual highly-reactive volatile organic compound emissions from the site; and(4) a summary of all trades completed under this division.</content><note type="source"><p>Source Note: The provisions of this §101.403 adopted to be effective December 23, 2004, 29 TexReg 11592.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.501"><num value="101.501">§101.501</num><heading>Applicability</heading><content>This division applies to any stationary, fossil fuel-fired boiler or stationary, fossil fuel-fired combustion turbine meeting the applicability requirements under 40 Code of Federal Regulations Part 96, Subpart AA or Subpart AAA.</content><note type="source"><p>Source Note: The provisions of this §101.501 adopted to be effective August 3, 2006, 31 TexReg 5974.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.502"><num value="101.502">§101.502</num><heading>Clean Air Interstate Rule Trading Program</heading><content>(a) The commission incorporates by reference, except as specified in this division, the provisions of 40 Code of Federal Regulations (CFR) Part 96, Subpart AA - Subpart II and Subpart AAA - Subpart III (as amended through October 19, 2007 (72 FR 59190)) for purposes of implementing the Clean Air Interstate Rule (CAIR) trading programs for annual emissions of oxides of nitrogen (NOX ) and sulfur dioxide to meet the requirements of Federal Clean Air Act, §110(a)(2)(D). (b) Owners and operators of sources subject to 40 CFR Part 96, Subpart AA - Subpart II or Subpart AAA - Subpart III shall comply with those requirements. (c) The methodologies and procedures for determining and recording each subject source's CAIR NOX allowance allocation in 40 CFR Part 96, Subpart EE are replaced by the requirements of this division.</content><note type="source"><p>Source Note: The provisions of this §101.502 adopted to be effective August 3, 2006, 31 TexReg 5974; amended to be effective March 4, 2010, 35 TexReg 1738.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.503"><num value="101.503">§101.503</num><heading>Clean Air Interstate Rule Oxides of Nitrogen Annual Trading Budget</heading><content>(a) The oxides of nitrogen (NOx ) trading budget for annual allocations of Clean Air Interstate Rule NOx allowances for the control periods in 2009 - 2014 and in 2015, and thereafter, shall be equivalent to the tons of NO x emissions listed for Texas in the state trading budget under 40 Code of Federal Regulations §96.140. (b) A total amount of Clean Air Interstate Rule NO x allowances equal to 9.5% of the NOx trading budget identified under subsection (a) of this section must be set-aside for allocation to new units.</content><note type="source"><p>Source Note: The provisions of this §101.503 adopted to be effective August 3, 2006, 31 TexReg 5974.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.504"><num value="101.504">§101.504</num><heading>Timing Requirements for Clean Air Interstate Rule Oxides of Nitrogen Allowance Allocations</heading><content>(a) The executive director shall submit to the United States Environmental Protection Agency (EPA) the Clean Air Interstate Rule (CAIR) oxides of nitrogen (NOX ) allowance allocations determined in accordance with §101.506(c) of this title (relating to Clean Air Interstate Rule Oxides of Nitrogen Allowance Allocations) by the following dates: (1) October 31, 2006, for the 2009 - 2014 control periods; (2) October 31, 2011, for the 2015 control period; (3) October 31, 2012, for the 2016 control period; and (4) 38 months prior to the beginning of each applicable control period for the control period beginning in 2017 and for each control period thereafter. (b) For the control period beginning in 2009, and for each control period thereafter, the executive director shall submit to EPA the CAIR NOX allowance allocations determined in accordance with §101.506(d) and (e) of this title by October 31 of the applicable control period. (c) If the executive director fails to submit to EPA the CAIR NOX allowance allocations in accordance with subsection (b) of this section, EPA will assume that no CAIR NOX allowances are to be allocated, for the applicable control period, to any CAIR NOX unit that would otherwise be allocated CAIR NOX allowances under §101.506(d) and (e) of this title.</content><note type="source"><p>Source Note: The provisions of this §101.504 adopted to be effective August 3, 2006, 31 TexReg 5974; amended to be effective March 4, 2010, 35 TexReg 1738.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.506"><num value="101.506">§101.506</num><heading>Clean Air Interstate Rule Oxides of Nitrogen Allowance Allocations</heading><content>(a) For units commencing operation before January 1, 2001: (1) for each control period in 2009 - 2017, the baseline heat input, in million British thermal units (MMBtu), is the average of the three highest amounts of the unit's adjusted control period heat input for 2000 - 2004 with the adjusted control period heat input for each year calculated as follows: (A) if the unit is coal-fired during the year, the unit's control period heat input for such year is multiplied by 90%; (B) if the unit is natural gas-fired during the year, the unit's control period heat input for such year is multiplied by 50%; and (C) if the unit is not subject to subparagraph (A) or (B) of this paragraph, the unit's control period heat input for such year is multiplied by 30%. (2) for the 2018 control period and for the control period beginning every five years thereafter, the baseline heat input must be adjusted to reflect the average of the three highest amounts of the unit's adjusted control period heat input from control periods one through five of the preceding nine control periods with the adjusted control period heat input for each year calculated as follows: (A) if the unit is coal-fired during the year, the unit's control period heat input for such year is multiplied by 90%; (B) if the unit is natural gas-fired during the year, the unit's control period heat input for such year is multiplied by 50%; and (C) if the unit is not subject to subparagraph (A) or (B) of this paragraph, the unit's control period heat input for such year is multiplied by 30%. (b) For units commencing operation on or after January 1, 2001: (1) for each control period in 2009 - 2014, Clean Air Interstate Rule (CAIR) oxides of nitrogen (NOX ) allowances must be allocated from the new unit set-aside identified under §101.503(b) of this title (relating to Clean Air Interstate Rule Oxides of Nitrogen Annual Trading Budget) and determined in accordance with subsection (d) of this section; (2) for the 2015, 2016, and 2017 control periods, for units operating each calendar year during a period of five or more consecutive years, the baseline heat input is the average of the three highest amounts of the unit's total converted control period heat input over the first such five years. The converted control period heat input for each year is calculated as follows: (A) except as provided in subparagraph (B) or (C) of this paragraph, the converted control period heat input equals the control period gross electrical output of the generator or generators served by the unit multiplied by 7,900 British thermal units per kilowatt-hour (Btu/kWh), if the unit is coal-fired for the year, or 6,675 Btu/kWh, if the unit is not coal-fired for the year, and divided by 1,000,000 Btu/MMBtu. If a generator is served by two or more units, then the gross electrical output of the generator must be attributed to each unit in proportion to the unit's share of the total control period heat input of such units for the year; (B) for a unit that is a boiler and has equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy, the converted heat input is the total heat energy (in Btu) of the steam produced by the boiler during the control period, divided by 0.8 and converted to MMBtu by dividing by 1,000,000 Btu/MMBtu; or (C) for a unit that is a combustion turbine and has equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy, the converted heat input is determined using the equation in the following figure. Attached Graphic(3) for the 2018 control period and for the control period beginning every five years thereafter, for units operating each calendar year during a period of five or more consecutive years, the baseline heat input must be adjusted to reflect the average of the three highest amounts of the unit's converted control period heat input from control periods one through five of the preceding nine control periods. The converted control period heat input for each year is calculated as follows: (A) except as provided in subparagraph (B) or (C) of this paragraph, the converted control period heat input equals the control period gross electrical output of the generator or generators served by the unit multiplied by 7,900 Btu/kWh, if the unit is coal-fired for the year, or 6,675 Btu/kWh, if the unit is not coal-fired for the year, and divided by 1,000,000 Btu/MMBtu, provided that if a generator is served by two or more units, then the gross electrical output of the generator must be attributed to each unit in proportion to the unit's share of the total control period heat input of such units for the year; (B) for a unit that is a boiler and has equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy, the converted control period heat input equals the total heat energy (in Btu) of the steam produced by the boiler during the control period, divided by 0.8 and converted to MMBtu by dividing by 1,000,000 Btu/MMBtu; or (C) for a unit that is a combustion turbine and has equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy, the converted control period heat input is determined using the equation in the following figure.Attached Graphic(c) For units with a baseline heat input calculated under subsection (a) or (b)(2) or (3) of this section, CAIR NOX allowances must be allocated according to the equation in the following figure. Attached Graphic(d) For units commencing operation on or after January 1, 2001, and that have not established a baseline heat input in accordance with subsection (b)(2) or (3) of this section, CAIR NOX allowances must be allocated according to the following. (1) Beginning with the later of the control period in 2009 or the first control period after the control period in which the CAIR NOX unit commences commercial operation and until the first control period for which the unit is allocated CAIR NOX allowances under subsection (c) of this section, CAIR NOX allowances must be allocated from the new unit set-aside identified under §101.503(b) of this title. For the first control period in which a CAIR NOX unit commences commercial operation, such CAIR NOX unit will not receive a CAIR NOX allocation from the new unit set-aside. (2) To receive a CAIR NOX allowance allocation from the new unit set-aside, the CAIR designated representative shall submit to the executive director a written request on or before May 1 of the first control period for which the CAIR NOX allowance allocation is requested and after the date that the CAIR NOX unit commences commercial operation. (3) In a CAIR NOX allowance allocation request under paragraph (2) of this subsection, the amount of CAIR NOX allowances requested for a control period must not exceed the CAIR NOX unit's total tons of NOX emissions reported to EPA for the calendar year immediately preceding such control period. (4) The executive director shall review each CAIR NOX allowance allocation request submitted in accordance with this subsection and shall allocate CAIR NOX allowances for each control period as follows. (A) The executive director shall accept a CAIR NOX allowance allocation request only if the request meets, or is adjusted as necessary to meet, the requirements of this subsection. (B) On or after May 1 of the control period, the executive director shall determine the sum of all accepted CAIR NOX allowance allocation requests for the control period. (C) If the amount of CAIR NOX allowances in the new unit set-aside for the control period is greater than or equal to the sum under subparagraph (B) of this paragraph, then the executive director shall allocate the full amount of CAIR NOX allowances requested to each CAIR NOX unit covered under a CAIR NOX allowance allocation request that was accepted by the executive director. (D) If the amount of CAIR NOX allowances in the new unit set-aside for the control period is less than the sum under subparagraph (B) of this paragraph, then the executive director shall allocate CAIR NOX allowances to each CAIR NOX unit covered under a CAIR NOX allowance allocation request accepted by the executive director according to the equation in the following figure. Attached Graphic(E) The executive director shall notify each CAIR designated representative who submitted a CAIR NOX allowance allocation request of the amount of CAIR NOX allowances, if any, allocated for the control period to the CAIR NOX unit covered under the request. (e) If, after completion of the procedures under subsection (d) of this section for a control period, any unallocated CAIR NOX allowances remain in the new unit set-aside for the control period, the executive director shall allocate to each CAIR NOX unit receiving an allocation under subsection (c) of this section an amount of CAIR NOX allowances equal to the total amount of such remaining unallocated CAIR NOX allowances, multiplied by the unit's allocation under subsection (c) of this section, divided by 90.5% of the NOX trading budget identified in §101.503(a) of this title, and rounded to the nearest whole allowance as appropriate. (f) A unit's control period heat input, and a unit's status as coal-fired or natural gas-fired, for a calendar year under subsection (a) of this section, and a unit's total tons of NOX emissions during a calendar year under subsection (d) of this section, must be determined in accordance with 40 Code of Federal Regulations (CFR) Part 75, to the extent the unit was otherwise subject to the requirements of 40 CFR Part 75 for the year, or must be based on the best available data reported to the executive director for the unit, to the extent the unit was not otherwise subject to the requirements of 40 CFR Part 75 for the year. (g) On or before the latter of May 1, 2011, or May 1 of the control period immediately following a unit's fifth consecutive year of commercial operation, the CAIR designated representative of a unit establishing a baseline heat input in accordance with subsection (b)(2) or (3) of this section shall submit, on a form specified by the executive director, written certification of the gross electrical output of the generator or generators served by the unit and the total heat energy of any steam produced by the unit during the first five years of commercial operation.</content><note type="source"><p>Source Note: The provisions of this §101.506 adopted to be effective August 3, 2006, 31 TexReg 5974; amended to be effective March 4, 2010, 35 TexReg 1738.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scH/s101.508"><num value="101.508">§101.508</num><heading>Compliance Supplement Pool</heading><content>(a) In addition to the Clean Air Interstate Rule (CAIR) oxides of nitrogen (NOx ) allowances allocated under §101.506 of this title (relating to Clean Air Interstate Rule Oxides of Nitrogen Allowance Allocations), the executive director may allocate for the control period in 2009 up to the amount of CAIR NOx allowances listed as the compliance supplement pool for Texas under 40 Code of Federal Regulations (CFR) §96.143. (b) For any CAIR NOx unit that achieves NOx emission reductions in 2007 and 2008 that are not necessary to comply with any state or federal emissions limitation applicable during such years, the CAIR designated representative of the unit may request early reduction credits and allocation of CAIR NOx allowances from the compliance supplement pool under subsection (a) of this section for such early reduction credits, in accordance with the following. (1) The owners and operators of such CAIR NO x unit shall monitor and report the NOx emissions rate and the heat input of the unit in accordance with 40 CFR Part 96, Subpart HH for the entire control period for which early reduction credit is requested. (2) The CAIR designated representative of such CAIR NOx unit shall submit to the executive director by July 1, 2009, a written request for allocation of an amount of CAIR NO x allowances from the compliance supplement pool not exceeding the sum of the amounts, in tons, of the unit's NOx emission reductions in 2007 and 2008 that are not necessary to comply with any state or federal emissions limitation applicable during such years, determined in accordance with 40 CFR Part 96, Subpart HH. (c) For any CAIR NOx unit whose compliance with the CAIR NOx emissions limitation for the control period in 2009 would create an undue risk to the reliability of electricity supply during such control period, the CAIR designated representative of the unit may request the allocation of CAIR NOx allowances from the compliance supplement pool under subsection (a) of this section, in accordance with the following. (1) The CAIR designated representative of such CAIR NOx unit shall submit to the executive director by July 1, 2009, a written request for allocation of an amount of CAIR NO x allowances from the compliance supplement pool not exceeding the minimum amount of CAIR NOx allowances necessary to remove such undue risk to the reliability of electricity supply. (2) In the request under subsection (c)(1) of this section, the CAIR designated representative of such CAIR NOx unit shall demonstrate that, in the absence of allocation to the unit of the amount of CAIR NOx allowances requested, the unit's compliance with CAIR NOx emissions limitation for the control period in 2009 would create an undue risk to the reliability of electricity supply during such control period. This demonstration must include a showing that it would not be feasible for the owners and operators of the unit to: (A) obtain a sufficient amount of electricity from other electricity generation facilities, during the installation of control technology at the unit for compliance with the CAIR NOx emissions limitation, to prevent such undue risk; or (B) obtain under subsections (b) and (d) of this section, or otherwise obtain, a sufficient amount of CAIR NOx allowances to prevent such undue risk. (d) The executive director shall review each request under subsections (b) or (c) of this section submitted by July 1, 2009, and shall allocate CAIR NOx allowances for the control period in 2009 to CAIR NOx units covered by such request as follows. (1) The executive director shall make any necessary adjustments to the request to ensure that the amount of the CAIR NO x allowances requested meets the requirements of subsections (b) or (c) of this section. (2) If the total amount of CAIR NOx allowances in all requests, as adjusted under paragraph (1) of this subsection, is less than the amount of allowances in the compliance supplement pool under subsection (a) of this section, the executive director shall allocate to each CAIR NOx unit covered by a request the amount of CAIR NOx allowances requested, as adjusted under paragraph (1) of this subsection. (3) If the total amount of CAIR NOx allowances in all requests, as adjusted under paragraph (1) of this subsection, is more than the amount of allowances in the compliance supplement pool under subsection (a) of this section, the executive director shall allocate CAIR NO x allowances to each CAIR NOx unit covered by a request according to the equation in the following figure. Attached Graphic(4) By November 30, 2009, the executive director shall determine, and submit to EPA, the allocations under paragraph (2) or (3) of this subsection.</content><note type="source"><p>Source Note: The provisions of this §101.508 adopted to be effective August 3, 2006, 31 TexReg 5974.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c101/scJ"><num value="J">SUBCHAPTER J</num><heading>EXPEDITED PERMITTING</heading><section identifier="/us/state/tx/tac/t30/p1/c101/scJ/s101.600"><num value="101.600">§101.600</num><heading>Applicability</heading><content>(a) An owner or operator may request the expedited processing of an application filed under Chapter 106, 116, or 122 of this title (relating to Permits by Rule; Control of Air Pollution by Permits for New Construction or Modification; and Federal Operating Permits Program, respectively) if the applicant demonstrates that the purpose of the application will benefit the economy of this state or an area of this state.(b) Subject to the availability of commission resources for expediting permit applications, the executive director may expedite the processing of an application filed under Chapter 106, 116 or 122 of this title if the executive director determines that expediting it will benefit the economy of this state or an area of this state.</content><note type="source"><p>Source Note: The provisions of this §101.600 adopted to be effective November 13, 2014, 39 TexReg 8715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scJ/s101.601"><num value="101.601">§101.601</num><heading>Surcharge</heading><content>(a) The executive director may add a surcharge for an expedited application filed under Chapter 106, 116, or 122 of this title (relating to Permits by Rule; Control of Air Pollution by Permits for New Construction or Modification; and Federal Operating Permits Program, respectively) in an amount sufficient to cover the expenses incurred by expediting it, including overtime, full-time equivalent commission employees, contract labor, and other costs.(b) Any surcharge will be remitted in the form of a check, certified check, electronic funds transfer, or money order made payable to the Texas Commission on Environmental Quality (TCEQ) or TCEQ and delivered with the application to the TCEQ, P.O. Box 13088, MC 214, Austin, Texas 78711-3088. Applications filed under Chapter 106, 116, or 122 of this title as described in this subchapter will not be considered for expedited processing until the surcharge is received.(c) If the cost of processing an expedited application under this subchapter exceeds the collected surcharge amount, the executive director may assess and collect additional surcharge(s) from the applicant to cover the additional costs of expediting the permit. The executive director will not grant final approval under Chapter 106, 116, or 122 of this title if an outstanding surcharge amount is due.(d) The executive director may refund any unused portion of the surcharge.</content><note type="source"><p>Source Note: The provisions of this §101.601 adopted to be effective November 13, 2014, 39 TexReg 8715; amended to be effective May 28, 2020, 45 TexReg 3442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scJ/s101.602"><num value="101.602">§101.602</num><heading>Public Notice</heading><content>When existing public notice requirements must be met and the applicant pays a surcharge as described in §101.601 of this title (relating to Surcharge), the applicable public notice must indicate that the application is being processed in an expedited manner.</content><note type="source"><p>Source Note: The provisions of this §101.602 adopted to be effective November 13, 2014, 39 TexReg 8715.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c101/scK"><num value="K">SUBCHAPTER K</num><heading>FAILURE TO ATTAIN FEE FOR THE 2008 EIGHT-HOUR OZONE STANDARD</heading><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.700"><num value="101.700">§101.700</num><heading>Definitions</heading><content>The following terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise.(1) Actual emissions--As defined in §101.10 of this title (relating to Emissions Inventory Requirements).(2) Area §185 Obligation--The total annual amount of Failure to Attain Fees due from all applicable major stationary sources or Section 185 Accounts in a severe or extreme ozone nonattainment area that failed to attain the 2008 eight-hour ozone National Ambient Air Quality Standard by its applicable attainment date.(3) Attainment date--The U.S. Environmental Protection Agency-specified date that a severe or extreme nonattainment area must attain the 2008 eight-hour ozone National Ambient Air Quality Standard.(4) Baseline amount--Tons of volatile organic compounds and/or nitrogen oxides emissions calculated separately at a major stationary source, using data submitted to and reviewed by the executive director. The baseline amount is the lower of baseline emissions (actual emissions) or total annual authorizations or pending authorizations emissions at a major stationary source during the baseline year or timeframe as otherwise specified under this subchapter.(5) Baseline emissions--Emissions reported in tons in the annual emissions inventory submitted to and recorded by the agency each calendar year per the requirements of §101.10 of this title. The emissions must include all annual routine emissions associated with authorized normal operations, which includes reported emissions from authorized maintenance, startup, and shutdown activities and excludes all unauthorized emissions. The timeframe options are as follows:(A) reported emissions from the baseline year; or(B) reported emissions as an average of any single consecutive 24-month period as allowed under §101.705(b)(2) of this title (relating to Baseline Amount) for major stationary sources with emissions that are irregular, cyclic, or otherwise vary significantly from year to year.(6) Baseline year--The baseline year is January 1 through December 31 of the calendar year that contains the attainment date unless otherwise specified in this subchapter.(7) Electric utility steam generating unit--As defined in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions).(8) Emissions unit--As defined in §101.1 of this title (relating to Definitions).(9) Equivalency credits--An amount equivalent to the revenue collected, as long as any revenue is also expended within a nonattainment area, in accordance with §101.703 of this title (relating to Fee Equivalency Account) for accumulation in the Fee Equivalency Account.(10) Extension year--A year as defined in FCAA §181(a)(5). (11) Failure to Attain Fee--The fee assessed and due from each major stationary source or Section 185 Account based on actual emissions whether authorized or unauthorized of volatile organic compounds, nitrogen oxides, or both pollutants that exceed 80% of the baseline amount.(12) Fee assessment year--Calendar year used to calculate and assess the Failure to Attain Fee under the provisions of this subchapter.(13) Fee collection year--Calendar year in which the Failure to Attain Fee is invoiced. (14) Major stationary source--As defined under §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions).(15) Section 185 Account--The TCEQ-assigned account number for one major stationary source or a group of two or more major stationary sources under common control located within the same severe or extreme 2008 eight-hour ozone National Ambient Air Quality Standard nonattainment area.(16) Supplemental Environmental Project (SEP) Offset Amount--The portion of an enforcement case's assessed administrative penalty approved for use in the performance of, or contribution to, a SEP, instead of being paid to the commission as a penalty.</content><note type="source"><p>Source Note: The provisions of this §101.700 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.701"><num value="101.701">§101.701</num><heading>Applicability</heading><content>(a) The provisions of this subchapter will become applicable in an area designated nonattainment and classified as severe or extreme under the 2008 eight-hour ozone National Ambient Air Quality Standard (NAAQS or standard) when the U.S. Environmental Protection Agency (EPA) determines that the area has failed to attain the standard by its applicable severe or extreme attainment date. The determination will be the effective date of EPA's finding of failure to attain notice published in the Federal Register. (b) Except as otherwise provided in §101.702 of this title (relating to Exemption), the provisions of this subchapter apply to all regulated entities that meet the definition of major stationary sources of volatile organic compounds or nitrogen oxides located in a nonattainment area classified as severe or extreme for the 2008 eight-hour ozone standard.</content><note type="source"><p>Source Note: The provisions of this §101.701 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.702"><num value="101.702">§101.702</num><heading>Exemption</heading><content>No major stationary source subject to the Failure to Attain Fee under this subchapter is required to remit the fee during any calendar year for which the U.S. Environmental Protection Agency has finalized an extension of the attainment date for the nonattainment area applicable to the major stationary source under the 2008 eight-hour ozone National Ambient Air Quality Standard.</content><note type="source"><p>Source Note: The provisions of this §101.702 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.703"><num value="101.703">§101.703</num><heading>Fee Equivalency Account.</heading><content>(a) Fee Equivalency Account. The executive director will establish and maintain a Fee Equivalency Account to document the equivalency credits. No actual money will be deposited into the Fee Equivalency Account. The Fee Equivalency Account will reflect equivalency credits based upon revenue collected and made available for programs of the Texas Emissions Reduction Plan (TERP) under authority of the Texas Health and Safety Code, Chapter 386.(b) Revenue eligibility. The revenue eligible for credits to the Fee Equivalency Account must be from the severe or extreme 2008 eight-hour ozone National Ambient Air Quality Standard (NAAQS or standard) nonattainment area and cannot be transferred between nonattainment areas.(c) Revenue credited. The revenue credited to the Fee Equivalency Account will be credited for the years TERP funding is expended in a severe or extreme 2008 eight-hour ozone standard nonattainment area beginning with the first fee assessment year until the Failure to Attain Fee no longer applies to the nonattainment area as described under §101.718 of this title (relating to Cessation of Program).(d) Other revenue sources. The executive director may credit revenue from other emissions reductions grant programs as funds become available. The executive director will apply revenue from such grant programs to the Fee Equivalency Account according to the requirements of this section and §101.704 of this title (relating to Fee Equivalency Accounting).</content><note type="source"><p>Source Note: The provisions of this §101.703 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.704"><num value="101.704">§101.704</num><heading>Fee Equivalency Accounting.</heading><content>(a) Fee Equivalency Account credits. Equivalency Credits will be on a dollar-for-dollar basis and will not be discounted due to the passage of time. Equivalency Credits can be accumulated in the Fee Equivalency Account from year to year if a surplus exists in any given year and used to offset the Area §185 Obligation determination. (b) Area §185 Obligation determination. Annually, the executive director will calculate the applicable Area §185 Obligation for all major stationary sources or Section 185 Accounts in a severe or extreme 2008 eight-hour ozone National Ambient Air Quality Standard (NAAQS or standard) nonattainment area by summing the Failure to Attain Fee for each major stationary source or Section 185 Account. The summed amount will represent the calendar year Area §185 Obligation for the severe or extreme 2008 eight-hour ozone standard nonattainment area. The annual Area §185 Obligation will be calculated using actual emissions reported under §101.10 of this title (relating to Emissions Inventory Requirements) for the fee assessment year.(c) Annual demonstration of equivalency. The executive director will annually determine the amount of equivalency credits available in the Fee Equivalency Account to determine the Area §185 Obligation calculated under this subsection. This demonstration will continue annually until the 2008 eight-hour ozone standard nonattainment area is no longer subject to the fee according to the provisions of §101.718 of this title (relating to Cessation of the Program).(1) The annual determination of equivalency will be calculated as follows.Attached Graphic(2) If the Fee Equivalency Account balance is calculated to be less than or equal to zero in paragraph (1) of this subsection, sufficient equivalency credits were available to offset the Area §185 Obligation. The executive director will not assess a Failure to Attain Fee on major stationary sources or Section 185 Accounts for the fee assessment year.(3) If the Fee Equivalency Account balance is calculated to be greater than zero in paragraph (1) of this subsection, insufficient equivalency credits were available to offset the fee obligation. The executive director will annually assess a sufficient Failure to Attain Fee to fulfill the Area §185 Obligation. The amount due from each major stationary source or Section 185 Account will be prorated to generate sufficient revenue to meet the Area §185 Obligation. The prorated fee will be calculated as follows.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §101.704 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.705"><num value="101.705">§101.705</num><heading>Baseline Amount</heading><content>(a) Baseline amount. For the purposes of this subchapter, the baseline amount must be calculated as the lower of the following:(1) total amount of baseline emissions; or(2) total annual emissions allowed under authorizations, including authorized emissions from maintenance, shutdown, and startup activities, applicable to the source in the baseline year. Emissions from pending authorizations with administratively complete applications as of December 31 of the baseline year may be included in the total annual emissions allowed under authorizations.(b) Baseline emissions. For the purposes of this subchapter, the baseline emissions must be calculated from:(1) the baseline year; or(2) a historical period, if the major stationary source's or Section 185 Account's emissions are irregular, cyclical, or otherwise vary significantly from year to year. Any single 24-month consecutive period within a historical period preceding January 1 of the baseline year may be used to calculate an average baseline emissions amount in tons per year for the major stationary source as the historical period. If used, the historical period must be:(A) ten years for non-electric utility steam generating units; or(B) five years for electrical utility steam generating units.(c) Historical period. If a major stationary source or Section 185 Account uses a historical period as defined in subsection (b)(2) of this section, the baseline amount will:(1) use adequate data for calculating the baseline emissions;(2) be adjusted downward to exclude any unauthorized emissions that occurred while the source was operating above an emissions limitation that was legally enforceable during the consecutive 24-month period; and(3) be adjusted downward to exclude any emissions during the consecutive 24-month period that would have exceeded an emissions limitation that was legally enforceable in effect by December 31 of the baseline year. (d) Adjustments. The baseline amounts must be adjusted downward to exclude any emissions that exceeded an emissions limit that was legally enforceable in effect by December 31 of the baseline year.(e) Emissions units. Baseline amounts must include all emissions units located at the major stationary source as of December 31 of the baseline year. When control or ownership of emission units changes during the baseline year, the emissions from those emission units will be attributed to the major stationary source with control or ownership of the emissions unit on December 31 of the baseline year.(f) Calculations. A baseline amount, reported in units of tons per year, must be calculated separately for each pollutant, volatile organic compounds and/or nitrogen oxides, for which the source meets the major source applicability requirements of §101.701 of this title (relating to Applicability).(g) Compliance schedule. The owner or operator of each major stationary source meeting the requirements of §101.701 of this title must submit to the executive director a report establishing its baseline amount on a form published by the executive director. The baseline amounts forms must be submitted by the emissions inventory due date as specified under §101.10 of this title (relating to Emissions Inventory Requirements) for the fee assessment year, or 120 days after the effective date of a finding of failure to attain, whichever is later.(h) Review. Where the baseline amount does not align with information recorded in either the emissions inventory database or the air permitting data systems, the executive director may direct that the baseline amount be based on the lower of reported emissions under §101.10 of this title or total annual authorized emissions. After review, the baseline amount will be fixed and not be changed except as allowed under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §101.705 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.706"><num value="101.706">§101.706</num><heading>Baseline Amount for New Major Stationary Sources</heading><content>(a) Baseline amounts. A baseline amount must be established for major stationary sources or Section 185 Accounts that begin operating during or after the baseline year. The baseline amount must use the first full year of operation as a major source and be the lower of:(1) total amount of baseline emissions; or(2) total annual emissions allowed under applicable authorizations, including emissions from maintenance, startup, and shutdown activities. Emissions from pending authorizations with administratively complete applications as of the last day of the full first calendar year of operation may be included in the total annual emissions allowed under authorizations.(b) Adjustments. The baseline amount must be adjusted downward to exclude any emissions that exceeded an emissions limit for rules or regulations in effect by the last day of the one-year period used to determine the baseline amount.(c) Emissions units. Baseline amounts must include all emissions units located at the major stationary source as of the last day of the one-year period used to determine the baseline amount. When control or ownership of emission units changes during the calendar year, the emissions from those emission units will be attributed to the major stationary source with control or ownership of the emission unit on the last day of the one-year period used to determine the baseline amount.(d) Calculations. A baseline amount, reported in units of tons per year, must be calculated separately for each pollutant, volatile organic compounds and/or nitrogen oxides for which the source meets the major source applicability requirements of §101.701 of this title (relating to Applicability).(e) Compliance schedule. Within 90 calendar days of completing the first full year operating as a major stationary source, the major stationary source or Section 185 Account must submit to the executive director a report establishing the baseline amount on a form published by the executive director. (f) Review. Where the baseline amount does not align with information recorded in either the emissions inventory database or the air permitting data systems, the executive director may direct that the baseline amount be based on the lower of reported emissions under §101.10 of this title (relating to Emissions Inventory Requirements) or total annual authorized emissions. After review, the baseline amount will be fixed and not change except as allowed under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §101.706 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.707"><num value="101.707">§101.707</num><heading>Aggregated Baseline Amount.</heading><content>(a) Aggregation. After determining separate baseline amounts for each pollutant at each major stationary source or Section 185 Account according to the requirements of §101.705 of this title (relating to Baseline Amount) or §101.706 of this title (relating to Baseline Amount for New Major Stationary Sources), an owner or operator of a major stationary source or Section 185 Account may choose to combine baseline amounts as follows:(1) volatile organic compounds (VOC) emissions into a single aggregated pollutant baseline amount for multiple major stationary sources under common control;(2) nitrogen oxides (NOX) emissions into a single aggregated pollutant baseline amount for multiple major stationary sources under common control;(3) emissions for both VOC and NOX into a single aggregated pollutant baseline amount for a single major stationary source; and/or(4) emissions for both VOC and NOX into a single aggregated pollutant baseline amount for multiple major stationary sources under common control.(b) Pollutant emissions aggregation. Pollutant emissions in an aggregated amount must have:(1) the same time period for calculating the baseline amount; and(2) the same basis of baseline emissions or total annual authorized emissions to calculate the baseline amount.(c) Section 185 Account reporting. An owner and/or operator opting to combine VOC with NOX emissions and/or combine major stationary sources into one baseline amount must identify all major stationary sources being aggregated under this section.(d) Fee calculation requirement. The Failure to Attain Fee must be assessed and calculated in the same manner that an owner or operator elects to aggregate under this section.(e) Compliance schedule. The owner or operator of each major stationary source or Section 185 Account must submit to the executive director a report establishing its aggregated baseline amount on a form published by the executive director.(1) For major stationary sources or Section 185 Accounts that operated the entire baseline year, the aggregated baseline amount forms must be submitted by the emissions inventory due date as specified under §101.10 of this title (relating to Emissions Inventory Requirements) for the fee assessment year, or 120 days after the finding of failure to attain effective date in the Federal Register, whichever is later.(2) For major stationary sources or Section 185 Account that began operating during or after the baseline year, the aggregated baseline amount forms must be submitted within 90 calendar days of completing the first full year operating as a major stationary source.(f) Review. Where the baseline amount does not align with information recorded in either the emissions inventory database or the air permit data systems, the executive director may direct that the baseline amount be based on the lower of reported emissions under §101.10 of this title or total annual authorized emissions. After review, the baseline amount will be fixed and not be changed except as allowed under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §101.707 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.708"><num value="101.708">§101.708</num><heading>Adjustment of Baseline Amount for Major Stationary Sources with Less Than 24 Months of Operation</heading><content>(a) Baseline amount. The owner or operator of a major stationary source or Section 185 Account may request adjustment of the baseline amount established under this subchapter:(1) if the major stationary source or emissions units at the major stationary source experienced less than 24 months of consecutive operation by December 31 of the baseline year, and(2) if the emissions were irregular, cyclical, or otherwise vary significantly from year to year, then the baseline amount may be adjusted as the lower of the following:(A) total average amount of baseline emissions for the consecutive 24-month period; or(B) total annual emissions allowed under authorizations applicable to the major stationary source during the first year operating as a major stationary source. Emissions from pending authorizations with administratively complete applications as of the last day of the one-year period used to determine the baseline amount may be included in the total annual emissions allowed under authorizations.(b) Compliance schedule. Within 90 calendar days of completing 24 consecutive months of operation, the owner or operator of the major stationary source or Section 185 Account must submit to the executive director a request to adjust the baseline amount on a form published by the executive director.(c) Review. Where the baseline amount does not align with information recorded in either the emissions inventory database or the air permitting data systems, the executive director may direct that the baseline amount be based on the lower of reported emissions under §101.10 of this title (relating to Emissions Inventory Requirements) or total annual authorized emissions. After review, the baseline amount will be fixed and not change except as allowed under this subchapter.(d) Fee assessment. After review, the adjusted baseline amount will be applied starting with the fee assessment year after the review and will continue until the Failure to Attain Fee no longer applies to the area as specified under §101.718 of this title (relating to Cessation of Program). No refunds or credits will be applied to fees previously paid.</content><note type="source"><p>Source Note: The provisions of this §101.708 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.709"><num value="101.709">§101.709</num><heading>Adjustment of Baseline Amount for New Construction at a Major Stationary Source</heading><content>(a) Baseline amount. The owner or operator of a major stationary source or Section 185 Account may request adjustment of their baseline amount established under this subchapter to include emissions limits from new construction of authorized emissions units not included in baseline amounts previously established by the executive director. Adjustments to the baseline amount are limited as follows.(1) The emissions units must have been authorized by a nonattainment new source review permit, issued under Chapter 116, Subchapter B, Division 5 of this title (relating to Nonattainment Review Permits).(2) The emissions considered for the adjusted baseline amount for new emissions units are restricted to emissions units without a previously established baseline amount.(b) Compliance schedule. Within 90 calendar days of completed construction of the new emissions units, the owner or operator of the major stationary source or Section 185 Account must submit to the executive director a request to adjust the baseline amount on a form published by the executive director.(c) Review. Where the baseline amount does not align with information recorded in either the emissions inventory database or the air permitting data systems, the executive director may direct that the baseline amount be based on the lower of reported emissions under §101.10 of this title (relating to Emissions Inventory Requirements) or total annual authorized emissions. After review, the baseline amount will be fixed and will not change except as allowed under this subchapter.(d) Fee assessment. After review, the adjusted baseline amount will be applied starting with the fee assessment year after the review and will continue until the Failure to Attain Fee no longer applies to the area as specified under §101.718 of this title (relating to Cessation of Program). No refunds or credits will be applied to fees previously paid.</content><note type="source"><p>Source Note: The provisions of this §101.709 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.710"><num value="101.710">§101.710</num><heading>Adjustment of Baseline Amount for Ownership Transfers</heading><content>(a) Baseline amount. The owner or operator of a major stationary source or Section 185 Account may request adjustment of their baseline amount established under this subchapter if ownership and operation of emissions units are no longer under common ownership or control. Adjustments to the baseline amount are limited as follows:(1) The baseline amount, as calculated and reported for all emissions units no longer under common ownership or control, will be transferred from the original reporting major stationary source or Section 185 Account to the new major stationary source or Section 185 Account without modification to the reported amount; and(2) The baseline amount for remaining emissions units at the originating and recipient major stationary source or Section 185 Account will not be adjusted based on a change of ownership or control of emissions units to or from a major stationary source or Section 185 Account.(b) Adjustment qualification. To qualify for this baseline amount adjustment, the ownership transfer of the emissions units must take place between major stationary sources of the same pollutant or aggregated pollutants, volatile organic compounds and/or nitrogen oxides located within the same nonattainment area.(c) Compliance schedule. Within 90 calendar days of the effective date of a change of ownership or control of emissions units, the owner or operator of each major stationary source or Section 185 Account affected by the change in ownership or control of emissions units must submit to the executive director a request to adjust the baseline amount on a form published by the executive director.(d) Review. Where the baseline amount does not align with information recorded in either the emissions inventory database or air permitting data systems, the executive director may direct that the baseline amount be based on the lower of reported emissions under §101.10 of this title (relating to Emissions Inventory Requirements) or total annual authorized emissions. After review, the baseline amount will be fixed and will not change except as allowed under this subchapter.(e) Fee assessment. After review, the adjusted baseline amount will be applied starting with the fee assessment year after the review and will continue until the Failure to Attain Fee no longer applies to the area as specified under §101.718 of this title (relating to Cessation of Program). No refunds or credits will be applied to fees previously paid.</content><note type="source"><p>Source Note: The provisions of this §101.710 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.711"><num value="101.711">§101.711</num><heading>Adjustment of Baseline Amount for Final Emissions Inventory Data</heading><content>(a) Baseline amounts. Baseline amounts established under this subchapter may be adjusted based on final quality assured emissions inventory data.(b) Compliance schedule. Within 90 calendar days of receipt of final quality assured emissions inventory data or by March 31 of the calendar year immediately following the emissions inventory reporting year, whichever comes first, the owner or operator of each major stationary source or Section 185 Account must submit to the executive director a request to adjust the baseline amount on a form published by the executive director.(c) Review. Where the baseline amount does not align with information recorded in either the emissions inventory database or the air permitting data systems, the executive director may direct that the baseline amount be based on the lower of the reported emissions under §101.10 of this title (relating to Emissions Inventory Requirements) or total annual authorized emissions. After review, the baseline amount will be fixed and will not change except as allowed under this subchapter.(d) Fee assessment. After review, the adjusted baseline amount will be applied starting with the fee assessment year after the review and will continue until the Failure to Attain Fee no longer applies to the area as specified under §101.718 of this title (relating to Cessation of Program). No refunds or credits will be applied to fees previously paid.</content><note type="source"><p>Source Note: The provisions of this §101.711 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.712"><num value="101.712">§101.712</num><heading>Failure to Establish a Baseline Amount</heading><content>The executive director will determine baseline amounts for any major stationary source subject to §101.701 of this title (relating to Applicability) that fails to submit a baseline amount by the due date specified by the commission as follows:(1) If information is available to determine a baseline amount for each pollutant for which the source meets major source applicability requirements, the executive director will determine the baseline amount to be the lower of:(A) baseline emissions reported under §101.10 of this title (relating to Emissions Inventory Requirements); or(B) total annual emissions allowed under authorizations, including authorized emissions from maintenance, startup, and shutdown activities.(2) If no emissions inventory information required to determine baseline amount information is available, the executive director will establish the baseline amount as:(A) 12.5 tons of volatile organic compounds (VOC) emissions for major stationary sources of VOC emissions;(B) 12.5 tons of nitrogen oxides (NO X) emissions for major stationary sources of NOX emissions; or(C) 12.5 tons of VOC emissions and 12.5 tons of NOX emissions for major stationary sources of VOC and NOX emissions.(3) The executive director will not aggregate baseline amounts under §101.707 of this title (relating to Aggregated Baseline Amount) or adjust baseline amounts as provided in this subchapter to determine a baseline amount under this section.(4) A major stationary source will pay the Failure to Attain Fee according to §101.714 of this title (relating to Failure to Attain Fee Payment).(5) If the major stationary source submits a complete and verifiable emissions inventory according to §101.10 of this title, the major stationary source may then submit a baseline amount to the executive director on a form published by the executive director.(6) After the executive director finalizes the baseline amount based on demonstrated compliance with the criteria in this subchapter, the baseline amount will be applied starting with the fee assessment year after finalization and will continue until: (A) a baseline amount is established by the major stationary source or Section 185 Account in accordance with paragraph (5) of this section and reviewed by the executive director to ensure alignment with the emissions inventory database or air permit systems; or (B) the Failure to Attain Fee no longer applies to the area as specified under §101.718 of this title (relating to Cessation of Program). No refunds or credits will be applied to fees previously paid.</content><note type="source"><p>Source Note: The provisions of this §101.712 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.713"><num value="101.713">§101.713</num><heading>Failure to Attain Fee Assessment</heading><content>(a) Pollutant applicability. The executive director will annually assess the Failure to Attain Fee for each pollutant, volatile organic compounds (VOC), nitrogen oxides (NOX), or both, for which the major stationary source or Section 185 Account meets the requirements of §101.701 of this title (relating to Applicability) at any time during a calendar year.(b) Aggregation. The fee will be assessed and calculated using the same Failure to Attain Fee determination method used under this subchapter. Actual VOC or NOX emissions may be kept separate or aggregated together. A single pollutant may be aggregated across multiple major stationary sources, or VOC and NOX emissions may both be aggregated together across multiple major stationary sources. Aggregation must be conducted as described under §101.707 of this title (relating to Aggregated Baseline Amount) and is limited to emissions from:(1) major stationary sources that aggregated VOC baseline amounts;(2) major stationary sources that aggregated NOX baseline amounts; or(3) major stationary sources that aggregated VOC with NOX baseline amounts.(c) Assessment. The owner or operator of each major stationary source to which this rule applies must annually pay the Failure to Attain Fee to the commission calculated in accordance with either subsection (d) or (e) and subsection (f) of this section. The Failure to Attain Fee will be assessed on actual emissions of VOC and/or NOX as recorded in the emissions inventory under §101.10 of this title (relating to Emissions Inventory Requirements), that exceed 80% of the pollutant baseline amount, rounded up to the nearest whole number.(d) Fee assessment for separate pollutants. The Failure to Attain Fee from major stationary sources that did not aggregate baseline amounts under §101.707 of this title will remain separate and due from each major stationary source or Section 185 Account for each pollutant for which the source meets the major source applicability requirements. The fee will be calculated separately by the formula in subsection (f) of this section.(e) Fee assessment for aggregated pollutants. The Failure to Attain Fee will be calculated in accordance with subsection (f) of this section and the method used for an aggregated baseline amount determination as described under §101.707(a) of this title.(1) If VOC emissions are aggregated, VOC emissions from all major stationary sources in the Section 185 Account must be used for aggregated actual emissions and the aggregated baseline emissions.(2) If NOX emissions are aggregated, NOX emissions from all major stationary sources in the Section 185 Account must be used for the aggregated actual and aggregated baseline emissions.(3) If VOC emissions are aggregated with NOX emissions at one major stationary source, VOC and NOX emissions must be used for the aggregated actual and aggregated baseline emissions. If VOC emissions are aggregated with NOX emissions across multiple major stationary sources, VOC and NOX emissions from each major stationary source in the Section 185 Account must be used for the aggregated actual and aggregated baseline emissions.(f) Fee calculations. The fee will be calculated for VOC, NOX, or both pollutants' emissions, as follows.Attached Graphic(g) Enforcement. Failure to submit an emissions inventory according to the provisions of §101.10 of this title (relating to Emissions Inventory Requirements) to circumvent assessment of the Failure to Attain Fee is also subject to enforcement account under Texas Water Code (TWC), Chapter 7.</content><note type="source"><p>Source Note: The provisions of this §101.713 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.714"><num value="101.714">§101.714</num><heading>Failure to Attain Fee Payment</heading><content>(a) Fee timeframe. The Failure to Attain Fee is assessed, invoiced, and paid for each pollutant for which the source is major, volatile organic compounds and/or nitrogen oxides, starting the calendar year following the baseline year and continuing each year until the area is no longer subject to the Failure to Attain Fee as described under §101.718 of this title (relating to Cessation of Program).(b) Payment. Payment of Failure to Attain Fees required by this subchapter must be paid by check, certified check, electronic funds transfer, or money order made payable to the Texas Commission on Environmental Quality (TCEQ) and sent to the TCEQ address printed on the billing statement.(c) Fee payment due date. The Failure to Attain Fee payment is due by the due date specified on the invoice. The invoice due date will be a minimum of 30 days after the invoice mail date. (d) Nonpayment of fees. Each emissions Failure to Attain Fee payment must be paid at the time and in the manner and amount provided by this subsection. Failure to pay the full Failure to Attain Fee by the due date will result in enforcement action under Texas Water Code (TWC), §7.178.(e) Late payments. The agency will impose interest and penalties on owners or operators of a major stationary source or Section 185 Account who fail to make payment of emissions fees when due in accordance with Chapter 12 of this title (relating to Payment of Fees).</content><note type="source"><p>Source Note: The provisions of this §101.714 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.715"><num value="101.715">§101.715</num><heading>Eligibility for Other Failure to Attain Fee Fulfillment Options</heading><content>(a) Alternative fulfillment options. Notwithstanding any requirement in this subchapter, the owner or operator of a major stationary source or Section 185 Account required to pay a Failure to Attain Fee may submit a request to the executive director to partially or completely fulfill the Failure to Attain Fee in compliance with §101.716 (relating to Relinquishing Credits to Fulfill a Failure to Attain Fee and §101.717 of this title (relating to Using a Supplemental Environmental Project to Fulfill a Failure to Attain Fee).(b) Unfulfilled portions. If a Failure to Attain Fee cannot be completely fulfilled using alternate fulfillment options, then the unfulfilled portion of the Failure to Attain Fee is required to be calculated, assessed, and paid according to the provisions of this subchapter.(c) Reporting. The owner or operator of a major stationary source or Section 185 Account must inform the executive director if they choose an alternative fulfillment option for all or a portion of the Failure to Attain Fee as described in §101.716 and §101.717 of this title. The request must be submitted on a form specified by the executive director and include a list of the emissions in tons of volatile organic compounds and/or nitrogen oxides or the dollar-for-dollar amount requested from alternative fulfillment options, payment, or combination to cover the entire Failure to Attain Fee.(d) Compliance schedule. No later than 90 days after the executive director requests submission of the form specified in subsection (c) of this section and continuing annually, the owner or operator of a major stationary source or Section 185 Account must submit the form specified in subsection (c) and ensure the following conditions are met:(1) all emissions credits under §101.716 of this title must be approved, exercised, or completed during or after the baseline year; and(2) all Supplemental Environmental Projects under §101.717 of this title must be approved and completed during or after the baseline year.(e) If the executive director does not receive the form specified in subsection (c) of this section by the due date specified in subsection (d) of this section, the Failure to Attain Fee payment will be due in full as described under §101.714 of this title (relating to Failure to Attain Fee Payment).</content><note type="source"><p>Source Note: The provisions of this §101.715 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.716"><num value="101.716">§101.716</num><heading>Relinquishing Credits to Fulfill a Failure to Attain Fee.</heading><content>(a) The owner or operator of a major stationary source or Section 185 Account subject to this subchapter may submit a request to partially or completely fulfill the Failure to Attain Fee by substituting emissions reductions, on a volatile organic compounds- or nitrogen oxides-specific basis, in an amount equivalent to the tons on which the Failure to Attain Fee has been assessed by relinquishing an equivalent amount of any combination of:(1) emissions reduction credits;(2) discrete emissions reduction credits;(3) current or banked Highly-Reactive Volatile Organic Compound Emissions Cap and Trade program allowances; and/or(4) current or banked Mass Emissions Cap and Trade program allowances.(b) The use of the provisions of this section to fulfill a Failure to Attain Fee is subject to review by the executive director.</content><note type="source"><p>Source Note: The provisions of this §101.716 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.717"><num value="101.717">§101.717</num><heading>Using a Supplemental Environmental Project to Fulfill a Failure to Attain Fee</heading><content>(a) The owner or operator of a major stationary source or Section 185 Account subject to this subchapter may submit a request to partially or completely fulfill the Failure to Attain Fee by participating in the Supplemental Environmental Projects (SEPs) program. (b) The SEP must directly reduce the amount of VOC and/or NOX emissions in the 2008 eight-hour ozone National Ambient Air Quality Standard nonattainment area. (c) The SEP must be enforceable through an Agreed Order or other enforceable document.(d) Any amounts paid in excess of the SEP Offset Amount may be used to partially or completely fulfill the Failure to Attain Fee. (e) If the total amount paid to the SEP is greater than or equal to 110% of the SEP Offset Amount, then both the SEP Offset Amount and the amount paid in excess of the SEP Offset Amount may be used to partially or completely fulfill the Failure to Attain Fee. (f) Amounts as specified in subsection (d) or subsection (e) of this section must be credited on a dollar-for-dollar basis and will not be discounted due to the passage of time. Those credits may be accumulated from year to year, and if a surplus exists in any given year, the credits may be used to partially or completely fulfill the Failure to Attain Fee as needed.(g) The following cannot be used to partially or completely fulfill the Failure to Attain Fee:(1) any amount of the enforcement administrative penalty paid to the commission; or(2) any amount deferred to expedite settlement of an enforcement administrative penalty.(h) The use of a SEP to fulfill the Failure to Attain Fee is subject to approval by the executive director.</content><note type="source"><p>Source Note: The provisions of this §101.717 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c101/scK/s101.718"><num value="101.718">§101.718</num><heading>Cessation of Program</heading><content>(a) The Failure to Attain Fee will continue to apply until one of the following actions is final:(1) the effective date of redesignation of the area classified as severe or extreme under the 2008 eight-hour ozone National Ambient Air Quality Standard (NAAQS or standard) to attainment by the U.S. Environmental Protection Agency (EPA); (2) any final action or final rulemaking by EPA to end the Failure to Attain Fee requirement; (3) finding of attainment by EPA; or (4) a demonstration indicating that the area would have attained by the attainment date but for emissions emanating from outside the United States. (b) Notwithstanding subsection (a) of this section, the Failure to Attain Fee will be calculated but not invoiced, and the fee collection may be placed in abeyance by the executive director if three consecutive years of quality-assured data resulting in a design value that did not exceed the 2008 eight-hour ozone National Ambient Air Quality Standard (NAAQS), or a demonstration indicating that the area would have attained by the attainment date but for emissions emanating from outside the United States, are submitted to EPA. The design value may exclude days submitted to EPA by the executive director that exceeded the standard because of exceptional events. Fee collection will remain in abeyance until EPA takes final action on its review of the certified monitoring data and any demonstration(s).</content><note type="source"><p>Source Note: The provisions of this §101.718 adopted to be effective November 13, 2025, 50 TexReg 7293.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c106"><num value="106">CHAPTER 106</num><heading>PERMITS BY RULE</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL REQUIREMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scA/s106.1"><num value="106.1">§106.1</num><heading>Purpose</heading><content>This chapter identifies certain types of facilities or changes within facilities which the commission has determined will not make a significant contribution of air contaminants to the atmosphere pursuant to the Texas Health and Safety Code, the TCAA, §382.057 and §382.05196.</content><note type="source"><p>Source Note: The provisions of this §106.1 adopted to be effective November 15, 1996, 21 TexReg 10881; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scA/s106.2"><num value="106.2">§106.2</num><heading>Applicability</heading><content>This chapter applies to certain types of facilities or changes within facilities listed in this chapter where construction is commenced on or after the effective date of the relevant permit by rule. This chapter does not apply to emissions of greenhouse gases (as defined in §101.1 of this title (relating to Definitions)).</content><note type="source"><p>Source Note: The provisions of this §106.2 adopted to be effective November 15, 1996, 21 TexReg 10881; amended to be effective July 8, 1998, 23 TexReg 6968; amended to be effective September 4, 2000, 25 TexReg 8653; amended to be effective April 17, 2014, 39 TexReg 2891.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scA/s106.4"><num value="106.4">§106.4</num><heading>Requirements for Permitting by Rule</heading><content>(a) To qualify for a permit by rule, the following general requirements must be met. (1) Total actual emissions authorized under permit by rule from the facility shall not exceed the following limits, as applicable: (A) 250 tons per year (tpy) of carbon monoxide (CO) or nitrogen oxides (NOX ); (B) 25 tpy of volatile organic compounds (VOC), sulfur dioxide (SO2), or inhalable particulate matter (PM); (C) 15 tpy of particulate matter with diameters of 10 microns or less (PM10 ); (D) 10 tpy of particulate matter with diameters of 2.5 microns or less (PM2.5 ); or (E) 25 tpy of any other air contaminant except: (i) water, nitrogen, ethane, hydrogen, and oxygen; and (ii) notwithstanding any provision in any specific permit by rule to the contrary, greenhouse gases as defined in §101.1 of this title (relating to Definitions). (2) Any facility or group of facilities, which constitutes a new major stationary source, as defined in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions), or any modification which constitutes a major modification, as defined in §116.12 of this title, under the new source review requirements of the Federal Clean Air Act (FCAA), Part D (Nonattainment) as amended by the FCAA Amendments of 1990, and regulations promulgated thereunder, must meet the permitting requirements of Chapter 116, Subchapter B of this title (relating to New Source Review Permits) and cannot qualify for a permit by rule under this chapter. Persons claiming a permit by rule under this chapter should see the requirements of §116.150 of this title (relating to New Major Source or Major Modification in Ozone Nonattainment Areas) to ensure that any applicable netting requirements have been satisfied. (3) Any facility or group of facilities, which constitutes a new major stationary source, as defined in 40 Code of Federal Regulations (CFR) §52.21, or any change which constitutes a major modification, as defined in 40 CFR §52.21, under the new source review requirements of the FCAA, Part C (Prevention of Significant Deterioration) as amended by the FCAA Amendments of 1990, and regulations promulgated thereunder because of emissions of air contaminants other than greenhouse gases, must meet the permitting requirements of Chapter 116, Subchapter B of this title and cannot qualify for a permit by rule under this chapter. Notwithstanding any provision in any specific permit by rule to the contrary, a new major stationary source or major modification which is subject to Chapter 116, Subchapter B, Division 6 of this title due solely to emissions of greenhouse gases may use a permit by rule under this chapter for air contaminants that are not greenhouse gases. However, facilities or projects which require a prevention of significant deterioration permit due to emissions of greenhouse gases may not commence construction or operation until the prevention of significant deterioration permit is issued. (4) Unless at least one facility at an account has been subject to public notification and comment as required in Chapter 116, Subchapter B or Subchapter D of this title (relating to New Source Review Permits or Permit Renewals), total actual emissions from all facilities permitted by rule at an account shall not exceed 250 tpy of CO or NOX ; or 25 tpy of VOC or SO2 or PM; or 15 tpy of PM10 ; or 10 tpy of PM2.5 ; or 25 tpy of any other air contaminant except water, nitrogen, ethane, hydrogen, oxygen, and GHGs (as specified in §106.2 of this title (relating to Applicability)). (5) Construction or modification of a facility commenced on or after the effective date of a revision of this section or the effective date of a revision to a specific permit by rule in this chapter must meet the revised requirements to qualify for a permit by rule. (6) A facility shall comply with all applicable provisions of the FCAA, §111 (Federal New Source Performance Standards) and §112 (Hazardous Air Pollutants), and the new source review requirements of the FCAA, Part C and Part D and regulations promulgated thereunder. (7) There are no permits under the same commission account number that contain a condition or conditions precluding the use of a permit by rule under this chapter. (8) The proposed facility or group of facilities shall obtain allowances for NOX if they are subject to Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program). (b) No person shall circumvent by artificial limitations the requirements of §116.110 of this title (relating to Applicability). (c) The emissions from the facility shall comply with all rules and regulations of the commission and with the intent of the Texas Clean Air Act (TCAA), including protection of health and property of the public, and all emissions control equipment shall be maintained in good condition and operated properly during operation of the facility. (d) Facilities permitted by rule under this chapter are not exempted from any permits or registrations required by local air pollution control agencies. Any such requirements must be in accordance with Texas Health and Safety Code, §382.113 and any other applicable law.</content><note type="source"><p>Source Note: The provisions of this §106.4 adopted to be effective November 15, 1996, 21 TexReg 10881; amended to be effective April 7, 1998, 23 TexReg 3502; amended to be effective September 4, 2000, 25 TexReg 8653; amended to be effective March 29, 2001, 26 TexReg 2396; amended to be effective May 15, 2011, 36 TexReg 2852; amended to be effective April 17, 2014, 39 TexReg 2891.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scA/s106.6"><num value="106.6">§106.6</num><heading>Registration of Emissions</heading><content>(a) An owner or operator may certify and register the maximum emission rates from facilities permitted by rule under this chapter in order to establish federally-enforceable allowable emission rates which are below the emission limitations in §106.4 of this title (relating to Requirements for Permitting by Rule).(b) All representations with regard to construction plans, operating procedures, and maximum emission rates in any certified registration under this section become conditions upon which the facility permitted by rule shall be constructed and operated.(c) It shall be unlawful for any person to vary from such representation if the change will cause a change in the method of control of emissions, the character of the emissions, or will result in an increase in the discharge of the various emissions, unless the certified registration is first revised.(d) The certified registration must include documentation of the basis of emission estimates and a written statement by the registrant certifying that the maximum emission rates listed on the registration reflect the reasonably anticipated maximums for operation of the facility.(e) Certified registrations used to demonstrate that Chapter 122 of this title (relating to Federal Operating Permits) does not apply to a source shall be submitted on the required form to the executive director; to the appropriate commission regional office; and to all local air pollution control agencies having jurisdiction over the site.(1) Certified registrations established prior to the effective date of this rule shall be submitted on or before February 3, 2003.(2) Certified registrations established on or after the effective date of this rule shall be submitted no later than the date of operation.(f) All certified registrations shall be maintained on-site and be provided immediately upon request by representatives of the commission or any local air pollution control agency having jurisdiction over the site. If however, the site normally operates unattended, certified registrations and records demonstrating compliance with the certified registration must be maintained at an office within Texas having day-to-day operational control of the site. Upon request, the commission shall make any such records of compliance available to the public in a timely manner.(g) Copies of certified registrations shall be included in permit applications subject to review under Chapter 116, Subchapter B of this title (relating to New Source Review Permits).</content><note type="source"><p>Source Note: The provisions of this §106.6 adopted to be effective November 15, 1996, 21 TexReg 10881; amended to be effective September 4, 2000, 25 TexReg 8653; amended to be effective December 11, 2002, 27 TexReg 11569.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scA/s106.8"><num value="106.8">§106.8</num><heading>Recordkeeping</heading><content>(a) Owners or operators of facilities and sources that are de minimis as designated in §116.119 of this title (relating to De Minimis Facilities or Sources) are not subject to this section.(b) Owners or operators of facilities operating under a permit by rule (PBR) in Subchapter C of this chapter (relating to Domestic and Comfort Heating and Cooling) or under those PBRs that only name the type of facility and impose no other conditions in the PBR itself do not need to comply with specific recordkeeping requirements of subsection (c) of this section. A list of these PBRs will be available through the commission's Austin central office, regional offices, and the commission's website. Upon request from the commission or any air pollution control program having jurisdiction, claimants must provide information that would demonstrate compliance with §106.4 of this title (relating to Requirements for Permitting by Rule), or the general requirements, if any, in effect at the time of the claim, and the PBR under which the facility is authorized.(c) Owners or operators of all other facilities authorized to be constructed and operate under a PBR must retain records as follows:(1) maintain a copy of each PBR and the applicable general conditions of §106.4 of this title or the general requirements, if any, in effect at the time of the claim under which the facility is operating. The PBR and general requirements claimed should be the version in effect at the time of construction or installation or changes to an existing facility, whichever is most recent. The PBR holder may elect to comply with a more recent version of the applicable PBR and general requirements;(2) maintain records containing sufficient information to demonstrate compliance with the following:(A) all applicable general requirements of §106.4 of this title or the general requirements, if any, in effect at the time of the claim; and(B) all applicable PBR conditions;(3) keep all required records at the facility site. If however, the facility normally operates unattended, records must be maintained at an office within Texas having day-to-day operational control of the plant site;(4) make the records available in a reviewable format at the request of personnel from the commission or any air pollution control program having jurisdiction;(5) beginning April 1, 2002, keep records to support a compliance demonstration for any consecutive 12-month period. Unless specifically required by a PBR, records regarding the quantity of air contaminants emitted by a facility to demonstrate compliance with §106.4 of this title prior to April 1, 2002 are not required under this section; and(6) for facilities located at sites designated as major in accordance with §122.10(13) of this title (relating to General Definitions) or subject to or potentially subject to any applicable federal requirement, retain all records demonstrating compliance for at least five years. For facilities located at all other sites, all records demonstrating compliance must be retained for at least two years. These record retention requirements supercede any retention conditions of an individual PBR.</content><note type="source"><p>Source Note: The provisions of this §106.8 adopted to be effective November 1, 2001, 26 TexReg 8518.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scA/s106.13"><num value="106.13">§106.13</num><heading>References to Standard Exemptions and Exemptions from Permitting</heading><content>The authorizations formerly known as standard exemptions and exemptions from permitting are referred to as permits by rule in this title. Types of facilities and changes within facilities authorized by those standard exemptions and exemptions from permitting continue to be authorized unless modifications or changes to those facilities has caused them to no longer meet the conditions of the former standard exemption or exemption from permitting and the general requirements of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §106.13 adopted to be effective September 23, 1999, 24 TexReg 8293; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scB"><num value="B">SUBCHAPTER B</num><heading>REGISTRATION FEES FOR NEW PERMITS BY RULE</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scB/s106.50"><num value="106.50">§106.50</num><heading>Registration Fees for Permits by Rule</heading><content>(a) A registrant who submits a permit by rule (PBR) registration for review by the commission shall remit one of the following fees with the PI-7 registration form:(1) $100 for:(A) small businesses, as defined in Texas Government Code, §2006.001;(B) non-profit organizations; and(C) municipalities, counties, and independent school districts with populations or districts of 10,000 or fewer residents, according to the most recently published census; or(2) $450 for all other entities.(b) This fee does not apply to:(1) a certification submitted solely for the purpose of establishing a federally enforceable emissions limit under §106.6 of this title (relating to Registration of Emissions);(2) a remediation project conducted under §106.533 of this title (relating to Remediation); or(3) resubmittal of previously reviewed registrations, if received within six months of a written response on the original action.(c) This fee is for PBR registrations that are received on or after November 1, 2002.(d) All PBR fees will be remitted in the form of a check, certified check, electronic funds transfer, or money order made payable to the Texas Commission on Environmental Quality (TCEQ) and submitted concurrently with the registration to the TCEQ, P.O. Box 13088, MC 214, Austin, Texas 78711-3087. No fees will be refunded.</content><note type="source"><p>Source Note: The provisions of this §106.50 adopted to be effective October 20, 2002, 27 TexReg 9606; amended to be effective June 30, 2004, 29 TexReg 6094.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scC"><num value="C">SUBCHAPTER C</num><heading>DOMESTIC AND COMFORT HEATING AND COOLING</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scC/s106.102"><num value="106.102">§106.102</num><heading>Comfort Heating</heading><content>This section permits by rule combustion units designed and used exclusively for comfort heating purposes employing liquid petroleum gas, natural gas, solid wood, or distillate fuel oil. Distillate fuel oil includes diesel fuel, kerosene, and heating oil Grades 4 and lighter. Distillate fuel oil does not include heavier residual oils such as Grades 5 and 6 fuel oil. Combustion of bark chips, sawdust, wood chips, treated wood, or wood contaminated with chemicals is not included. Used oil that has not been mixed with hazardous waste may be used as fuel in space heaters provided that:(1) the space heater or combination of space heaters at the same account have a maximum capacity of 1.0 Million Btu per hour (MMBtu/hr) provided each individual heater is not greater than 0.5 MMBtu/hr;(2) the combustion gases from the heater(s) are vented to the ambient air in accordance with the following requirements:(A) through an unobstructed vertical vent; or(B) for a stack with a cap;(i) for a flat roof, through a minimum of a three-foot stack; or(ii) for a sloped roof, through a stack that is three feet higher than a point extending ten feet horizontally from the roof; and(3) the heater(s) burns only used oil that the owner or operator generates on-site or used oil received from household do-it-yourself used oil generators.</content><note type="source"><p>Source Note: The provisions of this §106.102 adopted to be effective November 15, 1996, 21 TexReg 10883; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scD"><num value="D">SUBCHAPTER D</num><heading>ANALYSIS AND TESTING</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scD/s106.122"><num value="106.122">§106.122</num><heading>Bench Scale Laboratory Equipment</heading><content>Bench scale laboratory equipment and laboratory equipment used exclusively for chemical and physical analyses are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.122 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scD/s106.124"><num value="106.124">§106.124</num><heading>Pilot Plants</heading><content>Any new or modified pilot plant is permitted by rule, provided the following conditions of this section are met.(1) For purposes of this section, a pilot plant is defined as a facility that is constructed and operated only for one of the following purposes:(A) testing the manufacturing or marketing potential of a proposed product; or(B) defining the design of a larger plant; or(C) studying the behavior of an existing plant through modeling in the pilot plant.(2) The sum of product, co-product, and by-product production design capacity from the pilot plant shall not exceed five million pounds per year.(3) Operation of the pilot plant for purposes of testing market potential of a product, co-product, or by- product may not occur beyond the end of the fifth calendar year from the year of initial production (year 1) of the specific product, co-product, or by-product, unless a permit is obtained under §116.110 of this title (relating to Applicability). This five-year limit on pilot plant activity applies to equipment devoted to development of one specific product or process; therefore, that equipment can be subsequently used for development of other process(es) or product(s), setting a new time limit for its use.(4) The pilot plant shall be located at least 500 feet from any recreational area or residence or other structure not occupied or used solely by the owner of the facility or the owner of the property upon which the facility is located.(5) New or increased emissions shall not exceed 6.0 pounds per hour (lb/hr) and ten tons per year in total (including fugitives) and shall not exceed 1.0 lb/hr at any single stack (excluding fugitives). In addition, total new or increased emissions of each specific chemical shall not exceed the most stringent applicable requirement of the following:(A) the chemical-specific emission limits determined by §106.262(3) of this title (relating to Facilities (Emission and Distance Limitations));(B) the chemical-specific emission limits determined by §106.261(4) of this title (relating to Facilities (Emission Limitations)); or(C) 6.0 lb/hr for any simple asphyxiant as defined by the American Conference of Governmental Industrial Hygienists.</content><note type="source"><p>Source Note: The provisions of this §106.124 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scE"><num value="E">SUBCHAPTER E</num><heading>AGGREGATE AND PAVEMENT</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scE/s106.141"><num value="106.141">§106.141</num><heading>Batch Mixers</heading><content>Batch mixers with rated capacity of 27 cubic feet or less for mixing cement, sand, aggregate, lime, gypsum, additives, and/or water to produce concrete, grout, stucco, mortar, or other similar products; and that comply with the following conditions; are permitted by rule.(1) An internal combustion engine rated at 25 horsepower or less may be used to power the mixer.(2) The owner or operator shall use best management practices for dust control by:(A) cleaning up spilled raw materials, waste products, or finished products on a daily basis; and(B) controlling dust in transfer systems, stockpiles, work areas, storage, and truck unloading areas.</content><note type="source"><p>Source Note: The provisions of this §106.141 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653; amended to be effective March 7, 2013, 38 TexReg 1368.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scE/s106.143"><num value="106.143">§106.143</num><heading>Wet Sand and Gravel Production</heading><content>Any wet sand and gravel production facility that obtains its material from subterranean and subaqueous beds where the deposits of sand and gravel are consolidated granular materials resulting from natural disintegration of rock and stone and whose production rate is 500 tons per hour or less is permitted by rule. All permanent in-plant roads shall be paved and cleaned as necessary or watered as necessary to achieve maximum control of dust emissions.</content><note type="source"><p>Source Note: The provisions of this §106.143 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scE/s106.144"><num value="106.144">§106.144</num><heading>Bulk Mineral Handling</heading><content>All bulk mineral product (except asbestos) handling facilities that operate in compliance with the following conditions of this section are permitted by rule.(1) All material shall be transported in a closed conveying system and all exhaust air to the atmosphere shall be vented through a fabric filter having a maximum filtering velocity of 4.0 feet per minute (ft/min) with mechanical cleaning or 7.0 ft/min with automatic air cleaning.(2) All permanent in-plant roads and vehicle work areas shall be watered, treated with dust-suppressant chemicals, oiled, or paved and cleaned as necessary to achieve maximum control of dust emissions.(3) The facility (including associated stationary equipment and stockpiles) shall be located at least 300 feet from any recreational area, school, residence, or other structure not occupied or used solely by the owner of the property upon which the facility is located.(4) Before construction begins, written site approval must be received from the executive director and the facility shall be registered with the commission's Office of Permitting, Remediation, and Registration in Austin using Form PI-7.</content><note type="source"><p>Source Note: The provisions of this §106.144 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scE/s106.145"><num value="106.145">§106.145</num><heading>Bulk Sand Handling</heading><content>All oil well servicing bulk sand handling facilities that operate according to the following conditions of this section are permitted by rule.(1) All sand shall be prewashed.(2) All handling of sand shall be mechanical or, if conveyed pneumatically, the conveying air shall be vented to the atmosphere through a fabric filter(s) having a maximum filtering velocity of 4.0 feet per minute (ft/min) with mechanical cleaning or 7.0 ft/min with air cleaning.(3) All permanent in-plant roads and vehicle work areas shall be watered, treated with dust-suppressant chemicals, oiled, or paved and cleaned as necessary to achieve maximum control of dust emissions.(4) The facility (including associated stationary equipment and stockpiles) shall be located at least 300 feet from any recreational area, school, residence, or other structure not occupied or used solely by the owner of the property upon which the facility is located.(5) Before construction begins, the owner or operator shall file with the commission's Office of Permitting, Remediation, and Registration in Austin a completed Form PI-7 and supporting documentation demonstrating that all of the requirements of the permit by rule will be met.</content><note type="source"><p>Source Note: The provisions of this §106.145 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scE/s106.146"><num value="106.146">§106.146</num><heading>Soil Stabilization Plants</heading><content>Any soil stabilization facility that operates according to the following conditions of this section is permitted by rule.(1) All bulk storage silos shall be equipped with fabric filter(s) having a maximum filtering velocity of 4.0 feet per minute (ft/min) with mechanical cleaning or 7.0 ft/min with automatic air cleaning.(2) All conveyor belts transferring dry material to the pug mill shall be top covered.(3) The pug mill used to mix the materials shall be covered.(4) All permanent in-plant roads and vehicle work areas shall be watered, oiled, or paved and cleaned as necessary to achieve maximum control of dust emissions.(5) An audible and/or visible mechanism shall be installed on the storage silo(s) to notify operators that the silo is full.(6) All stockpiles shall be sprinkled with water and/or chemicals as necessary to achieve maximum control of dust emissions.(7) When emulsified asphalt is used as the stabilizing admixture, the emulsified asphalt shall be stored in a container used exclusively for emulsified asphalt storage. Transfer of emulsified asphalt from the storage tank to the pug mill shall be accomplished by means of a pump and metering device.(8) Before construction of the facility begins, written site approval shall be received from the executive director and the facility shall be registered with the commission's Office of Permitting, Remediating, and Registration in Austin using Form PI-7.(9) The facility shall be located at least 300 feet from any recreational area, school, residence, or other structure not occupied or used solely by the owner of the facility or the owner of the property upon which the facility is located. This distance limitation does not apply to structures within the boundaries of the project for which the facility is to process stabilized soil when the facility is located on or contiguous to the project.</content><note type="source"><p>Source Note: The provisions of this §106.146 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scE/s106.148"><num value="106.148">§106.148</num><heading>Material Unloading</heading><content>Railcar or truck unloading of wet sand, gravel, aggregate, coal, lignite, and scrap iron or scrap steel (but not including metal ores, metal oxides, battery parts, or fine dry materials) into trucks or other railcars for transportation to other locations is permitted by rule, provided the following conditions of this section are met.(1) Bulk materials shall not be stored on-site.(2) Water sprays or the equivalent must be installed and used as necessary at material handling operations to achieve maximum control of dust emissions.(3) All permanent in-plant roads and vehicle work areas shall be watered, treated with dust-suppressant chemicals, oiled, or paved and cleaned as necessary to achieve maximum control of dust emissions.</content><note type="source"><p>Source Note: The provisions of this §106.148 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scE/s106.149"><num value="106.149">§106.149</num><heading>Sand and Gravel Processing</heading><content>Any sand and gravel production facility that obtains its material from deposits of sand and gravel consisting of natural disintegration of rock and stone is permitted by rule, provided that the following conditions of this section are satisfied:(1) crushing or breaking operations are not used;(2) no blasting is conducted to obtain the material;(3) water sprays are installed on the plant at all screens and transfer points and used as necessary to achieve maximum control of dust emissions;(4) the area where the sand and gravel is obtained shall be sprinkled with water as necessary to achieve maximum control of dust emissions before the material is removed and transported for processing;(5) all in-plant roads shall be paved and cleaned or sprinkled with water and/or chemicals as necessary to achieve maximum control of dust emissions;(6) the plant is located at least 1/4 mile from any recreational area or residence or other structure not occupied or used solely by the owner of the facility or the owner of the property upon which the facility is located;(7) the production rate is 50 tons per hour or less.</content><note type="source"><p>Source Note: The provisions of this §106.149 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scE/s106.150"><num value="106.150">§106.150</num><heading>Asphalt Silos</heading><content>Any silo used to store hot mix asphalt or asphalt emulsion concrete mixtures which meets the following conditions of this section is permitted by rule:(1) no cutback asphalt mixtures are stored;(2) for silos on location for more than six months, all truck traffic areas are paved and cleaned as necessary to achieve maximum control of dust emissions and for those silos on location for six months or less, the truck traffic areas are sprinkled with water and/or chemicals as necessary to achieve maximum control of dust emissions;(3) fuel used for heating the silo is sweet natural gas as defined in Chapter 101 of this title (relating to General Air Quality Rules) or liquid petroleum gas or first run refinery grade diesel or Number 2 fuel oil that is not a blend containing waste oils or solvents and that contains less that 0.5% by weight sulfur;(4) the silo(s) is located at least 300 feet from any recreational area, school, residence, or other structure not occupied or used solely by the owner of the property upon which the silo(s) is located;(5) before construction begins, written site approval is received from the executive director and the facility is registered with the commission's Office of Permitting, Remediation, and Registration in Austin using Form PI-7.</content><note type="source"><p>Source Note: The provisions of this §106.150 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scF"><num value="F">SUBCHAPTER F</num><heading>ANIMAL CONFINEMENT</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scF/s106.161"><num value="106.161">§106.161</num><heading>Animal Feeding Operations</heading><content>Animal feeding operations which confine animals in numbers specified in paragraph (1) of this section and any associated on-site feed handling and/or feed milling operations which satisfy the following conditions of this section are permitted by rule.(1) Operations designed to feed no more than: (A) 1,000 cattle; (B) 1,000 horses and mules; (C) 2,500 swine weighing more than 55 pounds; (D) 10,000 sheep and goats; or (E) 1,000 animal equivalents. (2) Where a combination of cattle, swine weighing over 55 pounds, horses and mules, or sheep and goats are present, animal equivalents shall be calculated by adding the following numbers. Attached Graphic(3) In determining the number of animals or animal equivalents, mothers with nursing young shall be counted as a single animal while the young are nursing. Once removed from the mother, the young animals shall be counted when determining the number of animals or animal equivalents. Swine weighing 55 pounds or less shall be allowed, but not counted in determining the number of animals or animal equivalents. Animals on pasture are not considered as part of the animal feeding operation. (4) Operations designed to feed no more than 55,000 turkeys or other birds, excluding ducks, concentrated on open lots. (5) Operations designed to feed no more than 5,000 ducks. (6) All caged poultry operations designed to feed no more than 30,000 birds. (7) All housed poultry operations when wood shavings or similar material is used as litter. (8) All caged poultry operations designed to feed more than 30,000 birds when a dry manure storage and handling system is used and when located at least 1/4 mile from any recreational area or residence or other structure not occupied or used solely by the owner of the egg laying or caged pullet operation. Before construction of the caged laying and caged pullet operations begins, written site approval shall be received from the executive director and the facility shall be registered with the commission's Office of Permitting, Remediation, and Registration using Form PI-7. (9) For the associated on-site feed handling and/or feed milling operations to be covered under this section, no products from the feed handling and or feed milling shall be shipped off-site.</content><note type="source"><p>Source Note: The provisions of this §106.161 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scF/s106.162"><num value="106.162">§106.162</num><heading>Livestock Auction Facilities</heading><content>Livestock auction sales facilities are permitted by rule, provided the following conditions of this section are satisfied.(1) All holding pens shall be covered by a roof.(2) All traffic areas shall be paved and cleaned, oiled, or sprinkled with water and/or chemicals as necessary to achieve maximum control of dust emissions.(3) Manure shall be cleaned from pens as necessary to prevent an odor nuisance and disposed of in a manner which will not create a nuisance.(4) Dead animals shall be properly disposed of within 24 hours after death.(5) The facility shall be located at least 600 feet from any recreational area or residence or other structure not occupied or used solely by the owner or operator of this facility.(6) Before construction of the facility begins, written site approval shall be received from the executive director and the facility shall be registered with the commission's Office of Permitting, Remediation, and Registration in Austin using Form PI-7.</content><note type="source"><p>Source Note: The provisions of this §106.162 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scF/s106.163"><num value="106.163">§106.163</num><heading>Race Tracks, Zoos, and Animal Shelters</heading><content>All animal racing facilities, domestic animal shelters, zoos, and their associated confinement areas, stables, feeding areas, and waste collection and treatment facilities are permitted by rule. Incineration units are not authorized under this section.</content><note type="source"><p>Source Note: The provisions of this §106.163 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scG"><num value="G">SUBCHAPTER G</num><heading>COMBUSTION</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scG/s106.181"><num value="106.181">§106.181</num><heading>Used-Oil Combustion Units</heading><content>Small boilers and heaters burning used oil that has not been mixed with hazardous waste are permitted by rule provided that all of the following conditions are met:(1) the combustion unit or combination of combustion units at the same account have a maximum capacity of 1.0 million Btu per hour (MMBtu/hr) and each individual combustion unit is not greater than 0.5 MMBtu/hr;(2) the combustion gases from the combustion unit(s) are vented to the ambient air in accordance with the following requirements:(A) through an unobstructed vent; or(B) through a vertical vent with a cap; and(i) a flat roof, through a minimum of a three-foot stack; or(ii) a sloped roof, through a stack that is at least three feet higher than the highest point on the roof or three feet higher than a point extending ten feet horizontally from the roof; and(3) the combustion unit(s) burns only used oil the owner or operator generates on-site or used oil received from household do-it-yourself used oil generators.</content><note type="source"><p>Source Note: The provisions of this §106.181 adopted to be effective December 27, 1996, 21 TexReg 12123; amended to be effective September 4, 2000, 25 TexReg 8653; amended to be effective November 1, 2001, 26 TexReg 8518.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scG/s106.182"><num value="106.182">§106.182</num><heading>Ceramic Kilns</heading><content>Kilns used for firing ceramic ware, heated exclusively by natural gas, liquid petroleum gas, electricity, or any combination thereof are permitted by rule where the conditions of this section are met:(1) the total heat input is ten million British thermal units per hour or less; and(2) there are no emissions of lead, beryllium, or fluorides, and emissions of sulfur dioxide and particulate matter from both the material being fired and fuel burned do not exceed 25 tons per year of either air contaminant.</content><note type="source"><p>Source Note: The provisions of this §106.182 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scG/s106.183"><num value="106.183">§106.183</num><heading>Boilers, Heaters, and Other Combustion Devices</heading><content>Boilers, heaters, drying or curing ovens, furnaces, or other combustion units, but not including stationary internal combustion engines or turbines are permitted by rule, provided that the following conditions are met.(1) The only emissions shall be products of combustion of the fuel.(2) The maximum heat input shall be 40 million British thermal unit (Btu) per hour with the fuel being:(A) sweet natural gas;(B) liquid petroleum gas;(C) fuel gas containing no more than 0.1 grain of total sulfur compounds, calculated as sulfur, per dry standard cubic foot; or(D) combinations of the fuels in subparagraphs (A) - (C) of this paragraph.(3) Distillate fuel oil shall be fired as a backup fuel only. Firing shall be limited to 720 hours per year. The fuel oil shall contain less than 0.3% sulfur by weight and shall not be blended with waste oils or solvents.(4) All gas fired heaters and boilers with a heat input greater than ten million Btu per hour (higher heating value) shall be designed such that the emissions of nitrogen oxides shall not exceed 0.1 pounds per million Btu heat input.(5) Records of hours of fuel oil firing and fuel oil purchases shall be maintained on-site on a two-year rolling retention period and made available upon request to the commission or any local air pollution control agency having jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §106.183 adopted to be effective June 18, 1997, 22 TexReg 5668; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scI"><num value="I">SUBCHAPTER I</num><heading>MANUFACTURING</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scI/s106.221"><num value="106.221">§106.221</num><heading>Extrusion Presses</heading><content>Presses used exclusively for extruding metals, minerals, plastics, rubber, or wood are permitted by rule except where halogenated carbon compounds or hydrocarbon solvents are used as foaming agents. Presses used for extruding scrap materials or reclaiming scrap materials are not permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.221 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scI/s106.224"><num value="106.224">§106.224</num><heading>Aerospace Equipment and Parts Manufacturing</heading><content>Any new aerospace equipment and parts manufacturing plant, or physical and operational change to an existing aerospace equipment and parts manufacturing plant are permitted by rule, provided that the following conditions of this section are satisfied. (1) For purposes of this section, aerospace equipment and parts manufacturing plant means the entire operation on the property which engages in the fabrication or assembly of parts, tools, or completed components of any aircraft, helicopter, dirigible, balloon, missile, drone, rocket, or space vehicle. This permit by rule will not include composite aerospace equipment and parts manufacturing plants. Composite plants are defined to be plants whose products are less than 50% metal, by weight, based on annual production figures. This definition excludes those operations specifically authorized by other permits by rule. For example, a boiler would not be considered a part of the aerospace manufacturing plant, but could be authorized under §106.181 of this title (relating to Small Boilers, Heaters, and Other Combustion Devices), if all pertinent requirements were met. (2) Emission points associated with the aerospace equipment and parts manufacturing plant or changes to that plant shall be located at least 100 feet from any off-plant receptor. Off-plant receptor means any recreational area or residence or other structure not occupied or used solely by the owner or operator of the aerospace equipment and parts manufacturing plant or the owner of the property upon which the aerospace plant is located. Controlled access recreational areas owned by the property owner or the owner or operator of the aerospace plant are not off-plant receptors. (3) The total annual emissions, in tons per year, of the following air contaminants authorized under this section, on a cumulative basis, from the entire aerospace manufacturing plant shall not exceed the values specified: (A) inhalable particulate matter--five tons per year (tpy); (B) volatile organic compounds (VOC)--15 tpy; (C) acid gases or vapors--five tpy; (D) non-VOC carbon compound emissions--ten tpy; (E) total of air contaminants in subparagraphs (A) - (D) of this paragraph--25 tpy. (4) Hourly emissions of total new or increased emissions, including fugitives, of particulate matter or chemicals listed or referenced in Table 262 of §106.262 of this title (relating to Facilities (Emission Distance Limitations)), shall not exceed the hourly emission rate, E, as determined using the equation, E = L/K lb/hr and Table 224A, where: Attached Graphic(5) Before construction or change in operation begins, registration shall be submitted to the commission's Office of Permitting, Remediation, and Registration in Austin using a completed Form PI-7. The emission data provided in the PI-7 shall include all process emission sources at the plant, both existing and proposed, and shall be the maximum allowed emissions for permitted units, the actual emissions for existing grandfathered units or units permitted by rule, and the projected maximum allowable emissions for proposed units. Emissions shall be speciated by chemical compound and the stack parameters, as appropriate, for each emission source shall be provided. Registration shall include a description of the project, calculations, and data identifying specific chemical names, "L" values, "D" values, and a description of pollution control equipment, if any. (6) An emissions inventory shall be compiled and/or updated on an annual basis for all process emission sources on the property, maintained on a two-year rolling retention cycle, and made available upon request by the executive director. The inventory records should include the basis for all emissions estimates, sample calculations, and material usage records. Material and solvent usage records shall be maintained in sufficient detail to document compliance with this section. (7) There shall be no visible emissions from each existing and proposed stack, hood, vent, or opening to the atmosphere. (8) Any facility in which any chemical listed in subparagraph (D) of this paragraph will be handled or stored as a liquid or a compressed gas in a compound mixture of a concentration greater than 10% by weight or an aqueous solution of any chemical listed in subparagraph (D) of this paragraph greater than 50% by weight shall comply with subparagraphs (A) - (C) of this paragraph. (A) The facility shall be located at least 300 feet from the nearest property line and 600 feet from any off-plant receptor. (B) The cumulative amount of any one of the chemicals listed in subparagraph (D) of this paragraph, resulting from one or more authorizations under this section, shall not exceed 500 pounds on the plant property. (C) Any chemical listed in subparagraph (D) of this paragraph shall be handled only in containers operated in compliance with United States Department of Transportation regulations (49 Code of Federal Regulations, Parts 171-178). (D) Listed chemicals are: acrolein, ammonia, bromine, carbon disulfide, chlorine, ethyl mercaptan, hydrogen chloride, hydrogen bromide, hydrogen cyanide, hydrogen fluoride, hydrogen sulfide, phosphine, sulfur dioxide, methyl bromide, methyl isocyanate, methyl mercaptan, nickel carbonyl, phosgene.</content><note type="source"><p>Source Note: The provisions of this §106.224 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective July 8, 1998, 23 TexReg 6968; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scI/s106.225"><num value="106.225">§106.225</num><heading>Semiconductor Manufacturing</heading><content>Modifications, additions, or relocations of equipment (excluding add-on controls) used for semiconductor manufacturing operations that result in the addition, increase, or substitution of an air contaminant are permitted by rule provided the following conditions of this section are satisfied.(1) The following is a list of definitions for this section. (A) Permitted air contaminants--The individual chemical compounds represented in the latest permit or permit amendment application approved by the executive director. (B) Ground Level Contaminant (GLC1 )(max) new--The maximum hourly off-property GLC resulting from the new emission rate of air contaminant 1. (C) GLC1 (receptor) new--The maximum hourly off-property GLC at the sensitive receptor with the highest possible impacts resulting from the new emission rate of air contaminant 1. (D) GLC2(max)--The maximum hourly off-property GLC resulting from the emission rate of air contaminant 2. (E) GLC2(receptor)--The maximum hourly off-property GLC at the sensitive receptor with the highest possible impacts resulting from the emission rate of air contaminant 2. (F) ESL1 --The 30-minute Effects Screening Level (ESL) published in the commission's ESL list dated April 10, 1995, for air contaminant 1. (G) ESL2--The 30-minute ESL published in the commission's ESL list dated April 10, 1995, for air contaminant 2. (2) New emissions or an emission increase of any air contaminant less than 0.04 pounds per hour (sitewide) are exempt from all conditions of this section except paragraphs (3), (11), and (l2) of this section. (3) A permit has been issued by the commission for at least one emission source owned by the person using this section on the same property for which this section is being claimed. (4) The facility's baseline GLCs of the permitted air contaminants have been determined using air dispersion modeling or other methods. (5) New emission points are not authorized by this section. (6) There will be no change in method of control for any air contaminants as represented in the latest permit or permit amendment application approved by the executive director. (7) Increases of a permitted air contaminant shall meet all of the following criteria: (A) GLC1 (max)new ≤ 2ESL1 ; (B) GLC1 (receptor)new ≤ ESL1 . (8) Additions of a non-permitted air contaminant, substitutions of a non-permitted air contaminant for a permitted air contaminant, and substitutions of one permitted air contaminant for another permitted air contaminant shall meet all of the following criteria: (A) GLC2(max)new ≤ 2ESL2; (B) GLC2(receptor)new ≤ ESL2. (9) If the commission ESL list dated April 10, 1995, does not include the air contaminant to be added or substituted, the permittee must use an ESL derived by the commission's Toxicology and Risk Assessment Division. The ESL shall be obtained in writing prior to the use of the new substance. (10) The cumulative net annual emission increases of the following categories of air contaminants from multiple uses of this section shall not exceed the following values: (A) particulate matter--five tons per year (tpy); (B) volatile organic compounds (VOCs)--15 tpy; (C) non-VOCs--five tpy; (D) acids/bases--ten tpy; (E) any other air contaminant--five tpy; (F) total of all emission increases--25 tpy. (11) The applicable ground-level concentration limits in Chapters 111, 112, and 113 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter; Sulfur Compounds; and Toxic Materials) shall not be exceeded. (12) Within 30 days of use of this section, the permittee shall maintain documentation that demonstrates all applicable conditions of this section were satisfied. The documentation shall be made available to the commission upon request.</content><note type="source"><p>Source Note: The provisions of this §106.225 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scI/s106.226"><num value="106.226">§106.226</num><heading>Paints, Varnishes, Ink, and Other Coating Manufacturing</heading><content>Coating manufacturing operations including raw material storage, weighing, mixing, milling, grinding, thinning, and packaging are permitted by rule, provided the conditions of this section are met. Coating manufacturing is defined as combining ingredients that are manufactured off-site to make paints, varnishes, sealants, stains, adhesives, inks, pigments, maskants, and paint strippers, etc. Resin manufacturing is not permitted by rule under this section.(1) Materials usage shall not exceed the following rates:(A) 345,000 gallons per year of solvent for all operations at a coating manufacturing site; and(B) 200,000 pounds of dry powder per year for all operations at a coating manufacturing site.(2) Operations involving powders which contain more than 0.1% by weight of chromium, cadmium, asbestos, lead, arsenic, cobalt, or strontium are not authorized by this section.(3) The following conditions must be met to prevent and control emissions.(A) There shall be no visible emissions from any emission point.(B) Bags or sacks of dry powders shall be opened within an enclosed bag slitter or within an enclosed area.(C) Material transfer, storage operations, or other similar operations shall be conducted in enclosed or covered containers which are opened only as necessary for transfer of ingredients.(D) Mixing, milling, packaging, and filling operations shall be conducted under a hood or within an enclosure designed to capture emissions, which shall then be vented externally or through a carbon adsorption system.(E) Operations which involve dry powders or pigments shall be vented through a filter.(F) Any spills of dry powders or solvents shall be cleaned up promptly in a manner designed to control emissions.(G) Waste materials shall be stored in covered containers and disposed of properly.(4) Emissions from any operation which are vented externally shall be exhausted using forced air through a stack with an unobstructed vertical discharge. The stack must be, at a minimum, four feet above the peak of the roofline.(5) The owner or operator of the facility shall keep records of all liquid and solid material usage rates on a monthly basis to demonstrate compliance with paragraph (1) of this section. The usage data shall be maintained for the most recent 24-month period.</content><note type="source"><p>Source Note: The provisions of this §106.226 adopted to be effective August 4, 1998, 23 TexReg 7830; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scI/s106.227"><num value="106.227">§106.227</num><heading>Soldering, Brazing, Welding</heading><content>Brazing, soldering, or welding equipment, except those which emit 0.6 ton per year or more of lead, are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.227 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scI/s106.229"><num value="106.229">§106.229</num><heading>Textile Dyeing and Stripping Equipment</heading><content>Equipment used exclusively for the dyeing or stripping of textiles is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.229 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scI/s106.231"><num value="106.231">§106.231</num><heading>Manufacturing, Refinishing, and Restoring Wood Products</heading><content>Facilities, including drying or curing ovens, and hand-held or manually operated equipment, used for manufacturing, refinishing, and/or restoring wood products that meet the following requirements are permitted by rule.(1) If a pneumatic sawdust collection system is used, it must be followed by a filter with no visible emissions.(2) Waste materials shall be stored and disposed of properly. There shall be no visible emissions leaving the property.(3) If the total coatings, solvents, and stripping agents used exceeds six gallons per day (gpd) or one gpd of methylene chloride, the following requirements must be met:(A) the application area must be exhausted using forced air through a stack with an unobstructed vertical discharge above the peak of the roof line; and(B) in addition to the requirements of subparagraph (A) of this paragraph, if application is made by spraying, the application area must also be vented through a filter system with a minimum particulate removal efficiency of 95%.(4) Purchase receipts for total coatings, solvents, and stripping agents for the most recent 24 months must be kept on site and be made immediately available upon request of personnel from the agency or any other air pollution control agency having jurisdiction. If the total materials purchased exceeds 550 gallons in any one month, records of the amount of materials used per month must be kept on-site to demonstrate that total emissions do not exceed 25 tons per year in any consecutive 12 months.</content><note type="source"><p>Source Note: The provisions of this §106.231 adopted to be effective July 16, 1997, 22 TexReg 6448; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scJ"><num value="J">SUBCHAPTER J</num><heading>FOOD PREPARATION AND PROCESSING</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scJ/s106.241"><num value="106.241">§106.241</num><heading>Slaughterhouses</heading><content>Any facility where animals or poultry are slaughtered and prepared for human consumption provided that waste products such as blood, offal, and feathers are stored in such a manner as to prevent the creation of a nuisance condition and these waste products are removed from the premises daily or stored under refrigeration until removed are permitted by rule. In addition, areas used to hold animals or poultry for slaughter shall be kept dry and clean to control odors.</content><note type="source"><p>Source Note: The provisions of this §106.241 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scJ/s106.242"><num value="106.242">§106.242</num><heading>Food Preparation</heading><content>Equipment used in eating establishments for the purpose of preparing food for human consumption is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.242 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scJ/s106.243"><num value="106.243">§106.243</num><heading>Smokehouses</heading><content>Smokehouses in which the maximum horizontal inside cross-sectional area does not exceed 100 square feet are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.243 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scJ/s106.244"><num value="106.244">§106.244</num><heading>Ovens, Barbecue Pits, and Cookers</heading><content>Ovens, mixers, blenders, barbecue pits, and cookers if the products are edible and intended for human consumption are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.244 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scJ/s106.245"><num value="106.245">§106.245</num><heading>Ethyl Alcohol Facilities</heading><content>Ethyl alcohol (ethanol) production facilities having a capacity of less than 200 gallons of ethanol per day when natural gas, liquid petroleum gas, or Number 2 fuel oil is used to supply heat for cooking and distillation are permitted by rule. Drying of spent (distillers) grain and water stillage is not authorized under this section.</content><note type="source"><p>Source Note: The provisions of this §106.245 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scK"><num value="K">SUBCHAPTER K</num><heading>GENERAL</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scK/s106.261"><num value="106.261">§106.261</num><heading>Facilities (Emission Limitations)</heading><content>(a) Except as specified under subsection (b) of this section, facilities, or physical or operational changes to a facility, are permitted by rule provided that all of the following conditions of this section are satisfied. (1) The facilities or changes shall be located at least 100 feet from any recreational area or residence or other structure not occupied or used solely by the owner or operator of the facilities or the owner of the property upon which the facilities are located. (2) Total new or increased emissions, including fugitives, shall not exceed 6.0 pounds per hour (lb/hr) and ten tons per year of the following materials: acetylene, argon, butane, crude oil, refinery petroleum fractions (except for pyrolysis naphthas and pyrolysis gasoline) containing less than ten volume percent benzene, carbon monoxide, cyclohexane, cyclohexene, cyclopentane, ethyl acetate, ethanol, ethyl ether, ethylene, fluorocarbons Numbers 11, 12, 13, 14, 21, 22, 23, 113, 114, 115, and 116, helium, isohexane, isopropyl alcohol, methyl acetylene, methyl chloroform, methyl cyclohexane, neon, nonane, oxides of nitrogen, propane, propyl alcohol, propylene, propyl ether, sulfur dioxide, alumina, calcium carbonate, calcium silicate, cellulose fiber, cement dust, emery dust, glycerin mist, gypsum, iron oxide dust, kaolin, limestone, magnesite, marble, pentaerythritol, plaster of paris, silicon, silicon carbide, starch, sucrose, zinc stearate, or zinc oxide. (3) Total new or increased emissions, including fugitives, shall not exceed 1.0 lb/hr of any chemical having a limit value (L) greater than 200 milligrams per cubic meter (mg/m3 ) as listed and referenced in Table 262 of §106.262 of this title (relating to Facilities (Emission and Distance Limitations)) or of any other chemical not listed or referenced in Table 262. Emissions of a chemical with a limit value of less than 200 mg/m3 are not allowed under this section. (4) For physical changes or modifications to existing facilities, there shall be no changes to or additions of any air pollution abatement equipment. (5) Visible emissions, except uncombined water, to the atmosphere from any point or fugitive source shall not exceed 5.0% opacity in any six-minute period. (6) For emission increases of five tons per year or greater, notification must be provided using Form PI-7 within ten days following the installation or modification of the facilities. The notification shall include a description of the project, calculations, data identifying specific chemical names, limit values, and a description of pollution control equipment, if any. (7) For emission increases of less than five tons per year, notification must be provided using either: (A) Form PI-7 within ten days following the installation or modification of the facilities. The notification shall include a description of the project, calculations, data identifying specific chemical names, limit values, and a description of pollution control equipment, if any; or (B) Form PI-7 by March 31 of the following year summarizing all uses of this permit by rule in the previous calendar year. This annual notification shall include a description of the project, calculations, data identifying specific chemical names, limit values, and a description of pollution control equipment, if any. (b) The following are not authorized under this section: (1) construction of a facility authorized in another section of this chapter or for which a standard permit is in effect; and (2) any change to any facility authorized under another section of this chapter or authorized under a standard permit.</content><note type="source"><p>Source Note: The provisions of this §106.261 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective December 24, 1998, 23 TexReg 12925; amended to be effective September 4, 2000, 25 TexReg 8653; amended to be effective November 1, 2003, 28 TexReg 9279.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scK/s106.262"><num value="106.262">§106.262</num><heading>Facilities (Emission and Distance Limitations)</heading><content>(a) Facilities, or physical or operational changes to a facility, are permitted by rule provided that all of the following conditions of this section are satisfied. (1) Emission points associated with the facilities or changes shall be located at least 100 feet from any off-plant receptor. Off-plant receptor means any recreational area or residence or other structure not occupied or used solely by the owner or operator of the facilities or the owner of the property upon which the facilities are located. (2) New or increased emissions, including fugitives, of chemicals shall not be emitted in a quantity greater than five tons per year nor in a quantity greater than E as determined using the equation E = L/K and the following table.Attached GraphicAttached Graphic(3) Notification must be provided using Form PI-7 within ten days following the installation or modification of the facilities. The notification shall include a description of the project, calculations, and data identifying specific chemical names, L values, D values, and a description of pollution control equipment, if any. (4) The facilities in which the following chemicals will be handled shall be located at least 300 feet from the nearest property line and 600 feet from any off-plant receptor and the cumulative amount of any of the following chemicals resulting from one or more authorizations under this section (but not including permit authorizations) shall not exceed 500 pounds on the plant property and all listed chemicals shall be handled only in unheated containers operated in compliance with the United States Department of Transportation regulations (49 Code of Federal Regulations, Parts 171-178): acrolein, allyl chloride, ammonia (anhydrous), arsine, boron trifluoride, bromine, carbon disulfide, chlorine, chlorine dioxide, chlorine trifluoride, chloroacetaldehyde, chloropicrin, chloroprene, diazomethane, diborane, diglycidyl ether, dimethylhydrazine, ethyleneimine, ethyl mercaptan, fluorine, formaldehyde (anhydrous), hydrogen bromide, hydrogen chloride, hydrogen cyanide, hydrogen fluoride, hydrogen selenide, hydrogen sulfide, ketene, methylamine, methyl bromide, methyl hydrazine, methyl isocyanate, methyl mercaptan, nickel carbonyl, nitric acid, nitric oxide, nitrogen dioxide, oxygen difluoride, ozone, pentaborane, perchloromethyl mercaptan, perchloryl fluoride, phosgene, phosphine, phosphorus trichloride, selenium hexafluoride, stibine, liquified sulfur dioxide, sulfur pentafluoride, and tellurium hexafluoride. Containers of these chemicals may not be vented or opened directly to the atmosphere at any time. (5) For physical changes or modifications to existing facilities, there shall be no changes or additions of air pollution abatement equipment. (6) Visible emissions, except uncombined water, to the atmosphere from any point or fugitive source shall not exceed 5.0% opacity in any six-minute period. (b) The following are not authorized under this section except as noted in subsection (c) of this section: (1) construction of a facility authorized in another section of this chapter or for which a standard permit is in effect; and (2) any change to any facility authorized under another section of this chapter or authorized under a standard permit. (c) If a facility has been authorized under another section of this chapter or under a standard permit, subsection (a)(2) and (3) of this section may be used to qualify the use of other chemicals at the facility.</content><note type="source"><p>Source Note: The provisions of this §106.262 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective December 24, 1998, 23 TexReg 12925; amended to be effective September 4, 2000, 25 TexReg 8653; amended to be effective November 1, 2003, 28 TexReg 9279.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scK/s106.263"><num value="106.263">§106.263</num><heading>Routine Maintenance, Start-up and Shutdown of Facilities, and Temporary Maintenance Facilities</heading><content>(a) This section authorizes routine maintenance, start-up and shutdown of facilities, and specific temporary maintenance facilities except as specified in subsection (b) of this section.(b) The following are not authorized under this section:(1) construction of any new or modified permanent facility;(2) reconstruction under 40 Code of Federal Regulations, Part 60, New Source Performance Standards, Subpart A, §60.15 (relating to Reconstruction);(3) physical or operational changes to a facility which increase capacity or production beyond previously existing performance levels or results in the emission of a new air contaminant;(4) facilities and sources that are de minimis as allowed in §116.119 of this title (relating to De Minimis Facilities or Sources);(5) piping fugitive emissions authorized under a permit or another permit by rule; and(6) any emissions associated with operations claimed under the following sections of this chapter:(A) §106.231 of this title (relating to Manufacturing, Refinishing, and Restoring Wood Products);(B) §106.351 of this title (relating to Salt Water Disposal (Petroleum));(C) §106.352 of this title (relating to Oil and Gas Production Facilities);(D) §106.353 of this title (relating to Temporary Oil and Gas Facilities);(E) §106.355 of this title (relating to Pipeline Metering, Purging, and Maintenance);(F) §106.392 of this title (relating to Thermoset Resin Facilities);(G) §106.418 of this title (relating to Printing Presses);(H) §106.433 of this title (relating to Surface Coat Facility);(I) §106.435 of this title (relating to Classic or Antique Automobile Restoration Facility);(J) §106.436 of this title (relating to Auto Body Refinishing Facility); and(K) §106.512 of this title (relating to Stationary Engines and Turbines).(c) The following activities and facilities are authorized under this section:(1) routine maintenance activities which are those that are planned and predictable and ensure the continuous normal operation of a facility or control device or return a facility or control device to normal operating conditions;(2) routine start-ups and shutdowns which are those that are planned and predictable; and(3) temporary maintenance facilities which are constructed in conjunction with maintenance activities. Temporary maintenance facilities include only the following:(A) facilities used for abrasive blasting, surface preparation, and surface coating on immovable fixed structures;(B) facilities used for testing and repair of engines and turbines;(C) compressors, pumps, or engines and associated pipes, valves, flanges, and connections, not operating as a replacement for an existing authorized unit;(D) flares, vapor combustors, catalytic oxidizers, thermal oxidizers, carbon adsorption units, and other control devices used to control vent gases released during the degassing of immovable, fixed process vessels, storage vessels, and associated piping to atmospheric pressure, plus cleaning apparatus that will have or cause emissions;(E) temporary piping required to bypass a unit or pipeline section undergoing maintenance; and(F) liquid or gas-fired vaporizers used for the purpose of vaporizing inert gas.(d) Emissions from routine maintenance (excluding temporary maintenance facilities), start-up, and shutdown are:(1) limited to 24-hour emission totals which are less than the reportable quantities defined in §101.1(82) of this title (relating to Definitions) for individual occurrences;(2) required to be authorized under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) or comply with §101.7 and §101.11 of this title (relating to Maintenance, Start-up and Shutdown Reporting, Recordkeeping, and Operational Requirements, and Demonstrations) if unable to comply with paragraph (1) of this subsection or subsection (f) of this section; and(3) required to comply with subsection (f) of this section.(e) In addition to the emission limits in subsection (f) of this section, specific temporary maintenance facilities as listed in subsection (c)(3) of this section must meet the following additional requirements:(1) flares or vapor combustors must meet the requirements of §106.492(1) and (2)(C) of this title (relating to Flares);(2) catalytic oxidizers must meet the requirements of §106.533(5)(C) of this title (relating to Water and Soil Remediation);(3) thermal oxidizers must meet the requirements of §106.493(2) and (3) of this title (relating to Direct Flame Incinerators);(4) carbon adsorption systems must meet the requirements of §106.533(5)(D) of this title;(5) other control devices used to control vents caused by the degassing of process vessels, storage vessels, and associated piping must have an overall vapor collection and destruction or removal efficiency of at least 90%;(6) any temporary maintenance facility that cannot meet all applicable limitations of this section must obtain authorization under Chapter 116 of this title; and(7) temporary maintenance facilities may not operate at a given location for longer than 180 consecutive days or the completion of a single project unless the facility is registered. If a single project requires more than 180 consecutive days to complete, the facilities must be registered using a PI-7 Form, along with documentation on the project. Registration and supporting documentation shall be submitted upon determining the length of the project will exceed 180 days, but no later than 180 days after the project begins.(f) All emissions covered by this section are limited to, collectively and cumulatively, less than any applicable emission limit under §106.4(a)(1) - (3) of this title (relating to Requirements for Permitting by Rule) in any rolling 12-month period.(g) Facility owners or operators must retain records containing sufficient information to demonstrate compliance with this section and must include information listed in paragraphs (1) - (4) of this subsection. Documentation must be separate and distinct from records maintained for any other air authorization. Records must identify the following for all maintenance, start-up, or shutdown activities and temporary maintenance facilities:(1) the type and reason for the activity or facility construction;(2) the processes and equipment involved;(3) the date, time, and duration of the activity or facility operation; and(4) the air contaminants and amounts which are emitted as a result of the activity or facility operation.</content><note type="source"><p>Source Note: The provisions of this §106.263 adopted to be effective November 1, 2001, 26 TexReg 8518.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scK/s106.264"><num value="106.264">§106.264</num><heading>Replacements of Facilities</heading><content>A facility which replaces an existing facility is permitted by rule provided that the following conditions of this section are satisfied:(1) the replacement facility functions in the same or similar manner as the facility to be replaced;(2) the emissions from the replacement facility are not more than nor have different characteristics than those from the facility to be replaced;(3) the emissions from the replacement facility will not exceed 25 tons per year of any air contaminant;(4) the physical location of the replacement facility is the same or immediately adjacent to the facility being replaced;(5) there will be no increase in capacity, production rate, or throughput as a result of the replacement;(6) notwithstanding the provisions of paragraph (3) of this section, the emissions from the replacement facility will not contain any compounds (other than carbon monoxide, nitrogen oxide, or sulfur dioxide) listed or proposed to be listed as hazardous constituents in 40 Code of Federal Regulations 261, Appendix VIII;(7) notification of the replacement is provided to the executive director within ten days following installation of the replacement facility.</content><note type="source"><p>Source Note: The provisions of this §106.264 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scK/s106.265"><num value="106.265">§106.265</num><heading>Hand-held and Manually Operated Machines</heading><content>Hand-held or manually operated equipment used for buffing, polishing, carving, cutting, drilling, machining, routing, sanding, sawing, surface grinding, or turning of ceramic art work, ceramic precision parts, leather, metals, plastics, fiber board, masonry, carbon, glass, graphite, or wood is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.265 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scK/s106.266"><num value="106.266">§106.266</num><heading>Vacuum Cleaning Systems</heading><content>Vacuum cleaning systems used exclusively for industrial, commercial, or residential housekeeping purposes are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.266 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scL"><num value="L">SUBCHAPTER L</num><heading>FEED, FIBER, AND FERTILIZER</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scL/s106.281"><num value="106.281">§106.281</num><heading>Feed Milling</heading><content>Modifications to feed milling operations which satisfy the following conditions of this section are permitted by rule.(1) In conjunction with the installation of additional grain or feed storage silos, including bins used for loading out finished feed, all materials shall be transported in a closed conveying system when handled mechanically or pneumatically. Exhaust air to the atmosphere shall be vented through a fabric filter having a maximum filtering velocity of 4.0 feet per minute (ft/min) with mechanical cleaning or 7.0 ft/min with automatic air cleaning.(2) In conjunction with the installation of a pellet mill/pellet cooler system, the air from the pellet cooler shall be vented through a high efficiency cyclone collector which has a cone length at least twice the diameter of the cyclone.</content><note type="source"><p>Source Note: The provisions of this §106.281 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scL/s106.283"><num value="106.283">§106.283</num><heading>Grain Handling, Storage, and Drying</heading><content>Any grain handling, storage, and drying facility which meets paragraphs (1) or (2) of this section is permitted by rule.(1) The facility is in noncommercial use only--that is, used only to handle, dry, and/or store grain produced by the owner(s) of the facility if the following conditions are satisfied:(A) the total storage capacity does not exceed 750,000 bushels;(B) the grain handling capacity does not exceed 4,000 bushels per hour;(C) the facility is located at least 500 feet from any recreational area or residence or business not occupied or used solely by the owner of the facility.(2) The installation of additional grain storage capacity which satisfies the following conditions:(A) there shall be no increase in hourly grain handling capacity;(B) existing grain receiving and loadout facilities are utilized;(C) grain shall be conveyed by closed conveying systems and air suction shall not be pulled on any conveying unit;(D) written site approval shall be received from the executive director before construction begins for facilities utilizing existing grain receiving facilities when new gravity or auger loadout systems are to be installed.</content><note type="source"><p>Source Note: The provisions of this §106.283 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653; amended to be effective October 7, 2010, 35 TexReg 8942.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scL/s106.301"><num value="106.301">§106.301</num><heading>Aqueous Fertilizer Storage</heading><content>All aqueous fertilizer storage tanks are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.301 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scM"><num value="M">SUBCHAPTER M</num><heading>METALLURGY</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scM/s106.311"><num value="106.311">§106.311</num><heading>Crucible or Pot Furnace</heading><content>Crucible or pot furnaces with a brim full capacity of less than 450 cubic inches of any molten metal are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.311 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scM/s106.313"><num value="106.313">§106.313</num><heading>Tumblers for Cleaning or Deburring Metal</heading><content>All closed tumblers used for the cleaning or deburring of metal products without abrasive blasting, and all open tumblers with a batch capacity of 1,000 pounds or less are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.313 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scM/s106.314"><num value="106.314">§106.314</num><heading>Shell Core and Mold Machines</heading><content>Shell core and shell mold manufacturing machines are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.314 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scM/s106.315"><num value="106.315">§106.315</num><heading>Sand or Investment Molds</heading><content>Sand or investment molds with a capacity of 100 pounds or less used for the casting of metals are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.315 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scM/s106.316"><num value="106.316">§106.316</num><heading>Metal Inspection</heading><content>Equipment used for inspection of metal products is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.316 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scM/s106.317"><num value="106.317">§106.317</num><heading>Miscellaneous Metal Equipment</heading><content>Equipment used exclusively for rolling, forging, pressing, drawing, spinning, or extruding either hot or cold metals by some mechanical means is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.317 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scM/s106.318"><num value="106.318">§106.318</num><heading>Die Casting Machines</heading><content>Die casting machines are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.318 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scM/s106.319"><num value="106.319">§106.319</num><heading>Foundry Sand Mold Forming Equipment</heading><content>Foundry sand mold forming equipment to which no heat is applied is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.319 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scM/s106.320"><num value="106.320">§106.320</num><heading>Miscellaneous Metallic Treatment</heading><content>Electrically heated or sweet natural gas or liquid petroleum gas fueled equipment used exclusively for heat treating, soaking, case hardening, or surface conditioning of metal objects, such as carbonizing, cyaniding, nitriding, carbon nitriding, siliconizing, or diffusion treating is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.320 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scM/s106.321"><num value="106.321">§106.321</num><heading>Metal Melting and Holding Furnaces</heading><content>Metal melting and holding furnaces as specified in this section are permitted by rule.(1) crucible furnaces, pot furnaces, or induction furnaces with a holding capacity of 1,000 pounds or less, with the following limitations:(A) no smelting, reduction, sweating, metal separation, or distilling is conducted;(B) in ferrous melting furnaces where gray iron or steel is melted:(i) ductile iron is produced only when emissions are captured by a vent hood and filtered or within a crucible with a lid which allows no visible emissions; and(ii) the furnace charge is free of oil, grease, and paint;(C) in nonferrous melting furnaces, only the following metals are melted, poured, or held in a molten state:(i) aluminum or any alloy containing over 50% aluminum;(ii) magnesium or any alloy containing over 50% magnesium;(iii) tin or any alloy containing over 50% tin;(iv) zinc or any alloy containing over 50% zinc;(v) copper, brass, or bronze; or(vi) precious metals;(D) no lead, leaded brass, leaded bronze, or manganese bronze is melted, poured, or held in a molten state;(2) aluminum melting or holding furnaces with a holding capacity of 2,000 pounds or less that melt only clean aluminum ingots or pigs and in which no refining, smelting, metal separation, sweating, distilling, or fluxing with chlorine bearing gases is performed.</content><note type="source"><p>Source Note: The provisions of this §106.321 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective July 8, 1998, 23 TexReg 6966; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scM/s106.322"><num value="106.322">§106.322</num><heading>Furnaces To Reclaim Aluminum or Copper</heading><content>Dry hearth reverberatory type holding chamber aluminum or copper metal reclamation/sweat furnaces in which no fluxing, degassing, or refining is conducted, which operate according to the following conditions and limitations of this section are permitted by rule.(1) Scrap metal charges shall consist primarily of copper or aluminum metal. Operation of the furnace for reclamation or lead, tin, zinc, or magnesium metals is prohibited.(2) The maximum furnace charging rate shall be 2,000 pounds per hour or less.(3) The furnace charge door shall remain closed except during charging and furnace cleaning operations.(4) The furnace shall be equipped with an afterburner which will provide a minimum retention time of 0.1 second at a minimum temperature of 1,300 degrees Fahrenheit for all furnace exhaust gases.(5) The incineration of any insulated wire or cable containing chlorine compounds in the insulation, such as polyvinyl chloride insulation, is expressly prohibited.(6) The owner or operator of the furnace shall initiate and maintain a program of furnace operator training in the recognition of chlorine-bearing wire or cable insulation and shall demonstrate, upon request by the executive director, acceptable proficiency in the recognition of chlorine-bearing wire or cable insulation such as polyvinyl chloride insulation.(7) Fuel for the furnace shall be sweet natural gas as defined in Chapter 101 of this title (relating to General Air Quality Rules) or liquid petroleum gas, diesel, or Number 2 fuel oil.(8) Before construction begins, the facility shall be registered with the commission's Office of Permitting, Remediation, and Registration in Austin using Form PI-7.</content><note type="source"><p>Source Note: The provisions of this §106.322 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scN"><num value="N">SUBCHAPTER N</num><heading>MIXERS, BLENDERS, AND PACKAGING</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scN/s106.331"><num value="106.331">§106.331</num><heading>Cosmetics Packaging and Pharmaceutical Packaging and Coating</heading><content>Equipment used exclusively to package pharmaceuticals and cosmetics or to coat pharmaceutical tablets is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.331 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scN/s106.332"><num value="106.332">§106.332</num><heading>Chlorine Repackaging</heading><content>Facilities that repackage chlorine are permitted by rule, provided all the following conditions of this section are satisfied:(1) the repackaging shall be in United States Department of Transportation approved chlorine cylinders not exceeding one ton in capacity;(2) there shall be no more than two tons of chlorine on the property at any time;(3) all handling of chlorine shall be in accordance with applicable Chlorine Institute Guidelines;(4) the facilities shall be located no closer than 300 feet from any recreational area or residence or other structure not occupied or used solely by the owner or operator of the facilities or the owner of the property upon which the facilities are located;(5) the repackaging system shall be operated under vacuum at all times and all venting of lines and cylinders shall be routed to a caustic scrubbing system that prevents release of chlorine to the atmosphere during all operating and maintenance activities. When the scrubbing system is not operating properly, no chlorine shall be repackaged;(6) chlorine gas shall not be vented directly to the atmosphere under any circumstances.</content><note type="source"><p>Source Note: The provisions of this §106.332 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scN/s106.333"><num value="106.333">§106.333</num><heading>Water-based Adhesive Mixers</heading><content>Equipment used exclusively for the mixing and blending of materials at ambient temperature to make water-based adhesives is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.333 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scO"><num value="O">SUBCHAPTER O</num><heading>OIL AND GAS</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scO/s106.351"><num value="106.351">§106.351</num><heading>Salt Water Disposal (Petroleum)</heading><content>Salt water disposal facilities used to handle aqueous liquid wastes from petroleum production operations and water injection facilities are permitted by rule, provided that the following conditions of this section are met.(1) Any facility processing salt water which emits a sour gas shall be located at least 1/4 mile from any recreational area or residence or other structure not occupied or used solely by the owner or operator of the facility or the owner of the property upon which the facility is located.(2) Any open storage of salt water shall be operated in such a manner as to prevent the occurrence of a nuisance condition off-property.(3) All plant roads and truck loading and unloading areas must be operated and/or maintained as necessary to prevent dust emissions from the property which would cause or contribute to a nuisance condition. Appropriate operating activities may include reduction of speed of vehicles, use of alternate routes, and covering of dust-producing loads being hauled. Appropriate maintenance activities may include watering, treatment with dust suppressant chemicals, oiling, paving, and cleaning dust-producing surfaces.(4) Before construction of the facility begins under this section, registration of the permit by rule shall be submitted to the commission's Office of Permitting, Remediation, and Registration in Austin using Form PI-7, unless one of the following exceptions applies:(A) all delivery of salt water to the site takes place through enclosed hoses or lines, and all storage and handling of salt water takes place in enclosed conduits, vessels, and storage, so that the salt water is not exposed to the atmosphere; or(B) delivery of salt water from outside a site to all facilities at a site in any calendar day does not exceed 540,000 gallons.</content><note type="source"><p>Source Note: The provisions of this §106.351 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective August 4, 1998, 23 TexReg 7830; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scO/s106.352"><num value="106.352">§106.352</num><heading>Oil and Gas Handling and Production Facilities</heading><content>(a) Applicability. This section applies to all stationary facilities, or groups of facilities, at a site which handle gases and liquids associated with the production, conditioning, processing, and pipeline transfer of fluids or gases found in geologic formations on or beneath the earth's surface including, but not limited to, crude oil, natural gas, condensate, and produced water with the following conditions: (1) The requirements in subsections (a) - (k) of this section are applicable only for new projects and related facilities located in the Barnett Shale (Cooke, Dallas, Denton, Ellis, Erath, Hill, Hood, Jack, Johnson, Montague, Palo Pinto, Parker, Somervell, Tarrant, and Wise Counties) on or after April 1, 2011. For all other new projects and related facilities in all other counties of the state, subsection (l) of this section is applicable. (2) Only one Oil and Gas Handling and Production Facilities permit by rule (PBR) for an oil and gas site (OGS) may be claimed or registered for each combination of dependent facilities and authorizes all facilities in sweet or sour service. This section may not be used if operationally dependent facilities are authorized by the Air Quality Standard Permit for Oil and Gas Sites, or a permit under §116.111 of this title (relating to General Application). Existing authorized facilities, or groups of facilities, at an OGS under this section which are not changing certified character or quantity of emissions must only meet subsections (i) and (k) of this section (protectiveness review and planned maintenance, startup, and shutdown (MSS) requirements) and otherwise retain their existing authorization. Except for planned MSS activities which must meet the requirements of subsection (i) of this section, any combination of dependent facilities with a permit under §116.111 of this title cannot also claim this section for any new facility, or changes to an existing facility, which handles (or is related to the processing of) crude oil, condensate, natural gas, or any other petroleum raw material, product, or by-product. (3) This section does not relieve the owner or operator from complying with any other applicable provision of the Texas Health and Safety Code, Texas Water Code, rules of the Texas Commission on Environmental Quality (TCEQ), or any additional local, state, or federal laws or regulations. Emissions that exceed the limits in this section are not authorized and are violations. (4) Emissions from upsets, emergencies, or malfunctions are not authorized by this section. This section does not regulate methane, ethane, or carbon dioxide. (b) Definitions and Scope. (1) Facility is a discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a stationary source. Stationary sources associated with a mine, quarry, drilling, or a well test lasting less than 72 hours are not considered facilities. (2) Receptor includes any building which is in use as a single or multi-family residence, school, day-care, hospital, business, or place of worship at the time this section is registered. A residence is a structure primarily used as a permanent dwelling. A business is a structure that is occupied for at least eight hours a day, five days a week, and does not include businesses who are handling or processing materials as described in subsection (a) of this section. This term does not include structures occupied or used solely by the owner or operator of the OGS facility, or the mineral rights owner of the property upon which the OGS facility is located. All measurements of distance to receptors shall be taken from the emission release point at the OGS facility that is nearest to the point on the building that is nearest to the OGS facility. (3) An OGS is defined as all facilities which meet each of the following: (A) Located on contiguous or adjacent properties; (B) Under common control of the same person (or persons under common control); and (C) Designated under same two digit standard industrial classification (SIC) codes. (4) For purposes of determining applicability of Chapter 122 of this title (relating to Federal Operating Permits Program), the definitions of §122.10 of this title (relating to General Definitions), apply. (5) A project under this section is defined as the following and must meet all requirements of this section prior to construction or implementation of changes: (A) Any new facility or new group of operationally dependent facilities at an OGS; (B) Physical changes to existing authorized facilities or group of facilities at an OGS which increase the potential to emit over previously certified emission limits; or (C) Operational changes to existing authorized facilities or group of facilities at an OGS which increase the potential to emit over previously certified emission limits. (6) For purposes of registration under this section, the following facilities shall be included: (A) All facilities or groups of facilities at an OGS which are operationally dependent on each other; (B) Facilities must be located within a 1/4 mile of a project emission point, vent, or fugitive component, except for those components excluded in subparagraph (C) of this paragraph; (C) If piping or fugitive components are the only connection between facilities and the distance between facilities exceeds 1/4 mile, then the facilities are considered separate for purposes of this registration; (D) The boundaries of the registration become fixed at the time this section is claimed and registered. No individual facility may be authorized under more than one registration; (E) Any facility or group of facilities authorized under an existing PBR registration which is operationally dependent on a project must be revised to incorporate the project. Existing authorized facilities, or group of facilities, at an OGS under this section which are not changing certified character or quantity of emissions must only meet subsections (i) and (k) of this section (the protectiveness review and planned MSS requirements) and otherwise retain their existing authorization; and (F) All facilities at an OGS registered under this section must collectively emit less than or equal to 250 tons per year (tpy) of nitrogen oxides (NOX ) or carbon monoxide (CO); 15 tpy of particulate matter with less than 10 microns (PM10 ); 10 tpy of particulate matter less than 2.5 microns (PM2.5 ); and 25 tpy of volatile organic compounds (VOC), sulfur dioxide (SO2), hydrogen sulfide (H2S), or any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen. (7) For purposes of all previous claims of this section (or any previous version of this section) where no project is occurring: (A) existing authorized facilities, or group of facilities, at an OGS must meet only subsection (i) of this section no later than January 5, 2012; and (B) submit a notification in accordance with subsection (f) of this section no later than January 5, 2015. (8) For purposes of ensuring protection of public health and welfare and demonstrating compliance with applicable ambient air standards and effects screening levels (ESLs), the impacts analysis as specified in subsection (k) of this section must be completed. (A) All impacts analysis must be done on a contaminant-by-contaminant basis for any net project increases. If a claim under this section is only for planned MSS under subsection (i) of this section, the analysis shall evaluate planned MSS scenarios only. (B) Hourly and annual emissions shall be limited based on the most stringent of subsections (g), (h), or (k) of this section. (c) Authorized Facilities, Changes, and Activities. (1) For existing OGS which are authorized by previous versions of this section. (A) A project requires registration unless otherwise specified. (B) The following projects do not require registration, but must comply with best management practices (BMP) in subsection (e) of this section, compliance demonstrations in subsections (i) and (j) of this section, and must be incorporated into the registration at the next revision or certification: (i) Addition of any piping, fugitive components, any other new facilities, that increase actual emissions less than or equal to 1.0 tpy VOC, 5.0 tpy NOX , 0.01 tpy benzene, and 0.05 tpy H2S over a rolling 12-month period; (ii) Changes to any existing facilities that increase certified emissions less than or equal to 1.0 tpy VOC, 5.0 tpy NOX , 0.01 tpy benzene, and 0.05 tpy H2S over a rolling 12-month period; (iii) Total increases over a rolling 60-month period of time that are less than or equal to 5.0 tpy VOC or NOX , 0.05 tpy benzene, or 0.1 tpy H2S; (iv) Addition of any new engine rated less than 100 horsepower (hp); or (v) Replacement of any facility if the new facility does not increase the previous actual or certified emissions. (C) For facilities authorized under §116.111 of this title, only records of MSS as specified in this section must be kept and this section may only be used for planned MSS for the facility types specified in this section. (2) All authorizations under this section shall meet the following: (A) new, changed, or replacement facilities shall not exceed the thresholds for major source or major modification as defined in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions), and in Federal Clean Air Act, §112(g) or §112(j); (B) all facilities shall comply with all applicable 40 Code of Federal Regulations (CFR), Parts 60, 61, and 63 requirements for New Source Performance Standards (NSPS), National Emission Standards for Hazardous Air Pollutants (NESHAP), and Maximum Achievable Control Technology (MACT); and (C) all facilities shall comply with all applicable requirements of Chapters 111, of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter), 112 of this title (relating to Control of Air Pollution from Sulfur Compounds), 113 of this title (relating to Standards of Performance for Hazardous Air Pollutants and for Designated Facilities and Pollutants), 115 of this title (relating to Control of Air Pollution from Volatile Organic Compounds), and 117 of this title (relating to Control of Air Pollution from Nitrogen Compounds). (3) To be eligible for this PBR, in addition to the requirements found in §106.4 of this title (relating to Requirements for Permitting by Rule), an applicant: (A) shall meet all applicable requirements as set forth in this section; (B) shall not misrepresent or fail to fully disclose all relevant facts in obtaining the permit; and (C) shall not be indebted to the state for failure to make payment of penalties or taxes imposed by the statutes or rules within the commission's jurisdiction. (D) Notwithstanding any limitations in §50.131(c) of this title (relating to Purpose and Applicability), a person may file a Motion to Overturn under the procedures set forth in §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) in order to seek commission review of any denial of a PBR for failing to meet the conditions set forth in this paragraph. (4) This paragraph covers groups of facilities typically associated with wellheads, pump-jacks, Christmas trees, metering stations, and other similar facilities handling or containing crude oil, condensate, natural gas, or a mixture of these materials (examples include, but are not limited to, stripper/marginal wells producing up to 10 barrels of oil equivalent per day, natural gas up to 60,000 cubic feet per day, or high pressure gas wells). The following projects and facilities are authorized and must only comply with subsection (e)(1) and (2) of this section, and applicable portions of subsection (j) of this section: (A) Claims under this paragraph must include all facilities or groups of facilities at an OGS which are operationally dependent on each other and located within a 1/4 mile of a project emission point, vent, or fugitive component. If piping or fugitive components are the only connection between facilities and the distance between facilities exceeds 1/4 mile, then the facilities are considered separate for purposes of this paragraph. (B) A site-wide combination of engines which meet the following: (i) up to 450 hp if fueled by sweet gas; (ii) up to 100 hp if fueled by sour gas containing not more than 10,000 parts per million by weight (ppmw) H2S; or (iii) up to 20 hp fueled by sour gas containing more than 10,000 ppmw but not more than 50,000 ppmw H2S. (C) For any one of the following combinations of facilities: (i) only piping and fugitive components handling natural gas up to a maximum of 135 valves, 135 open-ended lines, any combination of connectors and flanges up to 2,000 components, and 135 component types otherwise not specified; or (ii) only piping and fugitive components handling liquids or gas up to a maximum of 25 valves, 25 open-ended lines, any combination of connectors and flanges up to 2,000 components, and 25 component types otherwise not specified; (iii) only piping and fugitive components handling liquids or gas up to a maximum of four pump seals; four open-ended lines; and any combination of valves, flanges, and connectors up to 225 components; or (iv) separators used solely to separate crude oil, condensate, and natural gas (which are routed directly to a sales pipeline) from produced water. Tanks used and handling only produced water up to 1,205 barrels per day. All associated piping and fugitive components up to a maximum of five pump seals; five open-ended lines; and any combination of valves, flanges, and connectors totaling 150 components in VOC service and 500 components in water service; or (v) separators used solely to separate crude oil, condensate, and natural gas (which are routed directly to a sales pipeline) from produced water. Tanks used and handling only produced water up to 580 barrels per day. All associated piping and fugitive components up to a maximum of two pump seals; two open-ended lines; and any combination of valves, flanges, and connectors totaling 230 components in VOC service and 500 components in water service. (d) Facilities and Exclusions. (1) Only the following specific facilities and groups of facilities have been evaluated for this PBR, along with supporting infrastructure equipment and facilities, and may be included in a registration for this section: (A) fugitive components, including valves, pressure relief valves, pipe flanges and connectors, pumps, compressors, stuffing boxes, instrumentation and meters, natural gas driven pneumatic pumps, and other similar devices with seals that separate process and waste material from the atmosphere and the associated piping; (B) separators, including all gas, oil, and water physical separation units; (C) treatment and processing equipment, including heater-treaters, methanol injection, glycol dehydrators, molecular or mole sieves, amine sweeteners, H2S scavenger chemical reaction vessels for sulfur removal, and iron sponge units; (D) cooling towers and associated heat exchangers; (E) gas recovery units, including cryogenic expansion, absorption, adsorption, heat exchangers and refrigeration units; (F) combustion units, including engines, turbines, boilers, reboilers, and heaters; (G) storage tanks for crude oil, condensate, produced water, fuels, treatment chemicals, slop and sump oils, and pressure tanks with liquefied petroleum gases; (H) surface support facilities associated with underground storage of gas or liquids; (I) truck loading equipment; (J) control equipment, including vapor recovery systems, glycol and amine reboilers, condensers, flares, vapor combustors, and thermal oxidizers; and (K) temporary facilities used for planned maintenance, and temporary control devices for planned startups and shutdowns. (2) Exclusions. The following are not authorized under this section: (A) sour water strippers or sulfur recovery units; (B) carbon dioxide hot carbonate processing units; (C) water injection facilities. These facilities may otherwise be authorized by §106.351 of this title (relating to Salt Water Disposal (Petroleum)); (D) liquefied petroleum gases, crude oil, or condensate transfer or loading into or from railcars, ships, or barges. These facilities may otherwise be authorized by §106.261 of this title (relating to Facilities (Emission Limitations)) and §106.262 of this title (relating to Facilities (Emission and Distance Limitations)); (E) incinerators for solid waste destruction; (F) remediation of petroleum contaminated water and soil. These facilities may otherwise be authorized by §106.533 of this title (relating to Remediation); and (G) cooling towers and heat exchangers with direct contact with gaseous or liquid process streams containing VOC, H2S, halogens or halogen compounds, cyanide compounds, inorganic acids, or acid gases. (e) BMP and Minimum Requirements. For any new project, and any associated emission control equipment registered under this section, paragraphs (1) - (5) of this subsection shall be met as applicable. These requirements are not applicable to existing, unchanging facilities. Equipment design and control device requirements listed in paragraphs (6) - (12) of this subsection only apply to those that are chosen by the operator to meet the limitations of this section. (1) All facilities which have the potential to emit air contaminants must be maintained in good working order and operated properly during facility operations. Each operator shall establish and maintain a program to replace, repair, and/or maintain facilities to keep them in good working order. The minimum requirements of this program shall include: (A) Compliance with manufacturer's specifications and recommended programs applicable to equipment performance and effect on emissions, or alternatively, an owner or operator developed maintenance plan for such equipment that is consistent with good air pollution control practices; (B) cleaning and routine inspection of all equipment; and (C) replacement and repair of equipment on schedules which prevent equipment failures and maintain performance. (2) Any facility shall be operated at least 50 feet from any property line or receptor (whichever is closer to the facility). This distance limitation does not apply to the following: (A) any fugitive components that are used for isolation and/or safety purposes may be located at 1/2 of the width of any applicable easement; (B) any facility at a location for which the distance requirements were satisfied at the time this section is claimed, registered, or certified (provided that the authorization was maintained) regardless of whether a receptor is subsequently built or put to use less than 50 feet from any OGS facility; or (C) existing facilities which are located less than 50 feet from a property line or receptor when constructed and previously authorized. If modified or replaced the operator shall consider, to the extent that good engineering practice will permit, moving these facilities to meet the 50-foot requirement. Replacement facilities must meet all other requirements of this section. (3) Engines and turbines shall meet the emission and performance standards listed in Table 6 in subsection (m) of this section and the following requirements: (A) liquid fueled engines used for back-up power generation and periodic power needs at the OGS are authorized if the fuel has no more than 0.05% sulfur and the engine is operated less than 876 hours per rolling 12-month period; (B) engines and turbines used for electric generation more than 876 hours per rolling 12-month period are authorized if no reliable electric service is readily available and Table 6 in subsection (m) of this section is met. In all other circumstances, electric generators must meet the technical requirements of the Air Quality Standard Permit for Electric Generating Unit (EGU) (not including the EGU standard permit registration requirements) and the emissions shall be included in the registration under this section; (C) all applicable requirements of Chapter 117 of this title (relating to Control of Air Pollution from Nitrogen Compounds); (D) all applicable requirements of 40 CFR Parts 60 and 63; and (E) compression ignition engines that are rated less than 225 kilowatts (300 hp) and emit less than or equal to the emission tier for an equivalent-sized model year 2008 non-road compression ignition engine located at 40 CFR §89.112, Table 1 are authorized. (4) Open-topped tanks or ponds containing VOCs or H2S are allowed up to a potential to emit equal to 1.0 tpy of VOC and 0.1 tpy of H2S. (5) The following shall apply to all fugitive components at the site associated with the project: (A) All components shall be physically inspected quarterly for leaks. (B) All components found to be leaking shall be repaired. Every reasonable effort shall be made to repair a leaking component. All leaks not repaired immediately shall be tagged or noted in a log. At manned sites, leaks shall be repaired no later than 30 days after the leak is found. At unmanned sites, leaks shall be repaired no later than 60 days after the leak is found. If the repair of a component would require a unit shutdown, which would create more emissions than the repair would eliminate, the repair may be delayed until the next shutdown. (C) Tank hatches, not designed to be completely sealed, shall remain closed (but not completely sealed in order to maintain safe design functionality) except for sampling, gauging, loading, unloading, or planned maintenance activities. (D) To the extent that good engineering practices will permit, new and reworked valves and piping connections shall be located in a place that is reasonably accessible for leak checking during plant operation. Underground process pipelines shall contain no buried valves such that fugitive emission monitoring is rendered impractical. (6) When leak detection and repair (LDAR) fugitive monitoring is chosen by the operator, Table 9, in subsection (m) of this section, shall apply. In addition, all components shall be physically inspected at least weekly by operating personnel walk-through. (7) Tanks and vessels that utilize a paint color to minimize the effects of solar heating (including, but not limited to, white or aluminum): (A) to meet this requirement the solar absorptance should be 0.43 or less, as referenced in Table 7.1 - 6 in Compilation of Air Pollutant Emission Factors (AP-42); (B) paint shall be applied according to paint producers recommended application requirements if provided and in sufficient quantity as to be considered solar resistant; (C) paint coatings shall be maintained in good condition and will not compromise tank integrity. Minimal amounts of rust may be present not to exceed 10% of the external surface area of the roof or walls of the tank and in no way may compromise tank integrity. Additionally, up to 10% of the external surface area of the roof or walls of the tank or vessel may be painted with other colors to allow for identification and/or aesthetics; (D) for tanks and vessels purposefully darkened to create the process reaction and help condense liquids from being entrained in the vapor or are in an area whereby a local, state, federal law, ordinance, or private contract predating this section's effective date establishes in writing tank and vessel colors other than white, these requirements do not apply. (8) All emission estimation methods including but not limited to computer programs such as GRI-GLYCalc, AmineCalc, E&P Tanks, and Tanks 4.0, must be used with monitoring data generated in accordance with Table 8 in subsection (m) of this section where monitoring is required. All emission estimation methods must also be used in a way that is consistent with protocols established by the commission or promulgated in federal regulations (NSPS, NESHAPS). Where control is relied upon to meet subsection (k) of this section, control monitoring is required. (9) Process reboilers, heaters, and furnaces that are also used for control of waste gas streams: (A) may claim 50% to 99% destruction efficiency for VOCs and H2 S depending on the design and level of monitoring applied. The 90% destruction may be claimed where the waste gas is delivered to the flame zone or combustion fire box with basic monitoring as specified in subsection (j) of this section. Any value greater than 90% and up to 99% destruction efficiency may be claimed where enhanced monitoring and/or testing are applied as specified in subsection (j) of this section; (B) if the waste gas is premixed with the primary fuel gas and used as the primary fuel in the device through the primary fuel burners, 99% destruction may be claimed with basic monitoring as specified in subsection (j) of this section; (C) in systems where the combustion device is designed to cycle on and off to maintain the designed heating parameters, and may not fully utilize the waste gas stream, records of run time and enhanced monitoring are required to claim any run time beyond 50%. (10) Vapor recovery Units (VRUs) may claim up to 100% control. The control efficiency is based on whether it is a mechanical VRU (mVRU) or a liquid VRU (lVRU). The VRUs must meet the appropriate design, monitoring, and recordkeeping in Table 7 and Table 8 in subsection (m) of this section. (11) Flares used for control of emissions from production, planned MSS, emergency, or upset events may claim design destruction efficiency of 98%. 99% may be claimed for destruction of compounds containing only carbon, hydrogen, and oxygen with no more than three carbon atoms. All flares must be designed and operated in accordance with the following: (A) meet specifications for minimum heating values of waste gas, maximum tip velocity, and pilot flame monitoring found in 40 CFR §60.18; (B) if necessary to ensure adequate combustion, sufficient gas shall be added to make the gases combustible; (C) an infrared monitor is considered equivalent to a thermocouple for flame monitoring purposes; (D) an automatic ignition system may be used in lieu of a continuous pilot; (E) flares must be lit at all times when gas streams are present; (F) fuel for all flares shall be sweet gas or liquid petroleum gas except where only field gas is available and it is not sweetened at the site; and (G) flares shall be designed for and operated with no visible emissions, except for periods not to exceed at total of five minutes during any two consecutive hours. Acid gas flares which must comply with opacity limits and records in accordance with §111.111(a)(4) of this title (relating to Requirements for Specified Sources), regarding gas flares, are exempt from this visible emission limitation. (12) Thermal oxidation and vapor combustion control devices: (A) may claim design destruction efficiency from 90% to 99.9% for VOCs and H2S depending on the design and the level of monitoring and testing applied; (B) a device designed for the variability of the waste gas streams it controls with basic monitoring to indicate oxidation or combustion is occurring when waste gas is directed to the device may claim 90% destruction efficiency; (C) devices with intermediate monitoring, designed for the variability of the waste gas streams they control, with a fire box or fire tube designed to maintain a temperature above 1,400 degrees Fahrenheit (F) for 0.5 seconds, residence time; or designed to meet the parameters of a flare with minimum heating values of waste gas, maximum tip velocity, and pilot flame monitoring as found in 40 CFR §60.18, but within a full or partial enclosure may claim a design destruction efficiency of 90% to 98%; (D) devices with enhanced monitoring and ports and platforms to allow stack testing may claim a 99% efficiency where the devices are designed for the variability of the waste gas streams they control, with a fire box or fire tube designed to maintain a temperature above 1,400 degrees F for 0.5 seconds, residence time; (E) devices that can claim 99% destruction efficiency may claim 99.9% destruction efficiency if stack testing is conducted and confirms the efficiency and the enhanced monitoring is adjusted to ensure the continued efficiency. Temperature and residence time requirements may be modified if stack testing is conducted to confirm efficiencies. (f) Notification, Certification, and Registration Requirements. (1) For all previous claims of this section (or any previous version of this section) existing authorized facilities, or group of facilities, identified in subsection (b)(7) of this section must submit a notification no later than January 5, 2015. Facilities or groups of facilities which meet subsection (c)(4) of this section do not have to meet the following notification requirements: (A) For actively operating facilities which have never been registered with the commission, submit updated Core Data and basic identifying information (previously claimed historical versions of this section and lease name or well numbers as provided to the Texas Railroad Commission) through ePermits using the "APD OGS Historical Notification." (B) For those facilities which have previously registered with the commission and updates are needed to the commission's Central Registry (CR), submit a hard copy of a Core Data Form with an attachment listing identifying information (previously claimed historical versions of this section and lease name or well numbers as provided to the Texas Railroad Commission). If no updates to CR are required, no further action is needed. (C) No fee is required for this notification. (2) If no other changes, except for authorizing planned MSS, occur at an existing site under this section, or any previous version of this section, the following apply no later than January 5, 2012: (A) Records demonstrating compliance with subsection (i) of this section must be kept; (B) If the existing OGS is certified, an addendum to the OGS certification may be filed using Form APD-CERT. No fee is required for this updated certification; and (C) Planned MSS does not require registration if no other project is occurring, and shall be incorporated at the next revision or update to a registration under this section after January 5, 2012. (3) For facilities authorized under §116.111 of this title, only records of MSS as specified in this section must be kept. Planned MSS shall be incorporated into the permit at the next permit renewal or amendment after January 5, 2012. (4) Prior to construction or implementation of changes for any project which meets this section, a notification shall be submitted through the ePermits system. This notification shall include the following: (A) Identifying information (Core Data) and a general description of the project must be submitted through ePermits (or if not available, hard-copy) using the "APD OGS New Project Notification." (B) A fee of $25 for small businesses (as defined in §106.50 of this title (relating to Registration Fees for Permits by Rule)), or $50 for all others must be submitted through the commission's ePay system. (5) For any registration which meets the emission limitations of Level 1 as required in subsection (g) of this section: (A) Within 180 days after start of operation or implemented changes (whichever occurs first), the facilities must be registered through ePermits form "APD OGS PBR Level 1 and 2 Registration" (or if not available, submittal of hard-copy). (B) This registration shall include a detailed summary of maximum emissions estimates based on: (i) site-specific or defined representative gas and liquid analysis; (ii) equipment design specifications and operations; (iii) material type and throughput; (iv) other actual parameters essential for accuracy for determining emissions; and (v) documentation demonstrating compliance with all applicable requirements of this section. (C) The fee for this registration shall be $25 for small businesses, as defined in §106.50 of this title, or $175 for all others. (6) For any registration which meets the emission limitations of Level 2 as required in subsection (h) of this section: (A) Within 90 days after start of operation or implemented changes (whichever occurs first), the facilities must be registered through ePermits form "APD OGS PBR Level 1 and 2 Registration" (or if not available, submittal of hard-copy). (B) This registration shall include a detailed summary of maximum emissions estimates based on: (i) site-specific or defined representative gas and liquid analysis; (ii) equipment design specifications and operations; (iii) material type and throughput; and (iv) other actual parameters essential for accuracy for determining emissions and compliance with all applicable requirements of this section. (C) The fee for this registration shall be $75 for small businesses (as defined in §106.50 of this title) or $400 for all others. (7) Certified registrations or certifications are required in the following circumstances: (A) For projects at existing major sites, establish emission increases less than any applicable threshold or contemporaneous emission increases for major sources or major modifications under prevention of significant deterioration (PSD), nonattainment new source review (NNSR) as specified in §116.12 of this title and in Federal Clean Air Act §112(g), §112(j), or the definition of major source in §122.10 of this title. (B) If a project or registration includes control for reductions, limited hours, throughput, and materials or other operational limitations which are less than the potential to emit, and if modeling is used to demonstrate compliance with subsection (k) of this section. (C) If a project is located at a site subject to NOX cap and trade requirements in Chapter 101, Subchapter H of this title (relating to Emissions Banking and Trading) or relies on controls to comply with any state or federal regulation. (D) For projects which resolve compliance issues and are the result of a commission or United States Environmental Protection Agency order. (8) If the ePermits system is not available for more than 24 hours or not otherwise accessible, hard copies of notifications, registrations, or certifications may be submitted by first-class mail. (9) If emissions increase at an OGS to a level where it exceeds its current authorization, either through a change in production or addition of facilities, the site may claim and register its facilities under the applicable authorization (Level 1 or Level 2 PBR or Standard Permit) as follows: (A) Within 90 days from the initial notification of construction of an oil and gas facility, a registration can update the authorization mechanism by submitting a revision to the PBR or an application for a standard permit; and (B) Within 90 days of the change of production or installation of additional equipment, a revision to the PBR or an application for a standard permit has been submitted. (g) Level 1 Requirements. Total maximum estimated emissions shall meet the most stringent of the following. All emissions estimates must be based on representative worst-case operations and planned MSS activities. (1) Emissions of any criteria air contaminant shall not exceed the applicable limits for a major stationary source or major modification for PSD, NNSR and in Federal Clean Air Act, §112(g), §112(j), or the definition of major source in §122.10 of this title. (2) Emissions must meet the limitations established in subsection (k) of this section. (3) Maximum emissions are limited to less than the following after any operator limitations or controls: Attached Graphic(h) Level 2 Requirements. If the requirements of Level 1 cannot be met, then the conditions of this subsection must be followed. Total maximum estimated registered or certified emissions shall meet the most stringent of the following. All emissions estimates must be based on representative worst-case operations and planned MSS activities. (1) Total maximum estimated annual emissions of any air contaminant shall not exceed the applicable limits for a major stationary source or major modification for PSD and NNSR as specified in §116.12 of this title. (2) Emissions must meet the limitations established in subsection (k) of this section. (3) Maximum emissions are limited to less than the following after any operator limitations or controls: Attached Graphic(i) Planned Maintenance, Startups and Shutdowns. For any facility, group of facilities or site using this section or previous versions of this section, the following shall apply. (1) Prior to January 5, 2012, representations and registration of planned MSS is voluntary, but if represented must meet the applicable limits of this section. After January 5, 2012, all emissions from planned MSS activities and facilities must be considered for compliance with applicable limits of this section. This section may not be used at a site or for facilities authorized under §116.111 of this title if planned MSS has already been authorized under that permit. (2) As specified, releases of air contaminants during, or as result of, planned MSS must be quantified and meet the emission limits in this section, as applicable. This analysis must include: (A) alternate operational scenarios or redirection of vent streams; (B) pigging, purging, and blowdowns; (C) temporary facilities if used for degassing or purging of tanks, vessels, or other facilities; (D) degassing or purging of tanks, vessels, or other facilities; and (E) management of sludge from pits, ponds, sumps, and water conveyances. (3) Other planned MSS activities authorized by this section are limited to the following. These planned MSS activities require only recordkeeping of the activity. (A) Routine engine component maintenance including filter changes, oxygen sensor replacements, compression checks, overhauls, lubricant changes, spark plug changes, and emission control system maintenance. (B) Boiler refractory replacements and cleanings. (C) Heater and heat exchanger cleanings. (D) Turbine hot section swaps. (E) Pressure relief valve testing, calibration of analytical equipment; instrumentation/analyzer maintenance; replacement of analyzer filters and screens. (4) Engine/compressor startups associated with preventative system shutdown activities have the option to be authorized as part of typical operations if: (A) prior to operation, alternative operating scenarios to divert gas or liquid streams are registered and certified with all supporting documentation; (B) engine/compressor shutdowns shall result in no greater than 4 lb/hr of natural gas emissions; and (C) emissions which result from the subsequent compressor startup activities are controlled to a minimum of 98% efficiency for VOC and H2S. (j) Records, sampling, and monitoring. The following records shall be maintained at a site in written or electronic form and be readily available to the agency or local air pollution control program with jurisdiction upon request. All required records must be kept at the facility site. If the facility normally operates unattended, records must be maintained at an office within Texas having day-to-day operational control of the plant site. Other requirements, including but not limited to, federal recordkeeping or testing requirements, can be used to demonstrate compliance if the other requirements are at least as stringent as the associated requirements in the Tables 7 and 8 in subsection (m) of this section. Any documentation that is already being kept for other purposes will suffice for demonstrating requirements. If a control or method is not relied upon for emission reductions, then the associated sampling, monitoring, and records are not applicable. (1) Sampling and demonstrations of compliance shall include the requirements listed in Table 7 in subsection (m) of this section. (2) Monitoring and records for demonstrations of compliance shall include the requirements listed in Table 8 in subsection (m) of this section. (k) Emission limits based on impacts evaluation. (1) All impacts evaluations must be completed on a contaminant-by-contaminant basis for any net emissions increases resulting from a project and must meet the following as appropriate: (A) Compliance with state or federal ambient air standards shall be demonstrated for nitrogen dioxide (NO2), SO2, and H2S at any property-line within 1/4 mile or 1/2 mile of a project under subsection (g) (Level 1) or subsection (h) (Level 2) of this section, respectively. (B) Compliance with hourly ESLs for benzene and annual ESL for benzene, shall be demonstrated at the nearest receptor within 1/4 mile or 1/2 mile of a project under subsection (g) (Level 1) or subsection (h) (Level 2) of this section, respectively. (2) Distance measurements shall be determined using the following. (A) For each facility or group of facilities, the shortest corresponding distance from any emission point, vent, or fugitive component to the nearest receptor must be used with the appropriate compliance determination method with the published ESLs as found through the TCEQ internet Web page. (B) For each facility or group of facilities, the shortest corresponding distance from any emission point, vent, or fugitive component to the nearest property line must be used with the appropriate compliance determination method with any applicable state or federal ambient air quality standard. (3) Impacts evaluations are not required under the following cases: (A) If there is no receptor within 1/4 mile of a Level 1 registration, or 1/2 mile of a Level 2 registration, no further ESL review is required. (B) If there is no property line within 1/4 mile of a Level 1 registration, or 1/2 mile of a Level 2 registration, no further ambient air quality standard review is required. (C) If the project total emissions are less than any of the following rates, no additional analysis or demonstration of the specified air contaminant is required: Attached Graphic(4) Evaluation of emissions shall meet the following. (A) For all evaluations of NOX to NO2, a conversion factor of 0.20 for 4-stroke rich and lean-burn engines and 0.50 for 2-stroke lean-burn engines may be used. (B) The maximum predicted concentration or rate at the property boundary or receptor, whichever is appropriate, must not exceed a state or federal ambient air standard or ESL. (5) The impacts analysis shall be based on the following facility emissions. (A) The following shall be met for ESL reviews: (i) If a project's air contaminant maximum predicted concentrations are equal to or less than 10% of the appropriate ESL, no further review is required. (ii) If a project's air contaminant maximum predicted concentrations combined with project increases for that contaminant over a 60-month period after the effective date of this revised section are equal to or less than 25% of the appropriate ESL, no further review is required. (iii) In all other cases, all facility emissions at an OGS, regardless of authorization type, located within 1/4 mile of a project requiring registration under this section shall be evaluated. (B) The following shall be met for state and federal ambient air quality standard reviews: (i) If a project's air contaminant maximum predicted concentrations are equal to or less than the significant impact level (also known as de minimis impact in Chapter 101 of this title (relating to General Air Quality Rules)), no further review is required; (ii) In all other cases, all facility emissions at an OGS, regardless of authorization type, located within 1/4 mile of a project requiring registration under this section shall be evaluated. (6) Evaluation must comply with one of the methods listed with no changes or exceptions. (A) Tables. (i) Emission impact Tables 2 - 5F in subsection (m) of this section, may be used in accordance with the limits and descriptions in Table 1 in subsection (m) of this section. (ii) Values in Tables 2 - 5F in subsection (m) of this section may be used with linear interpolation between height and distance points. A distance of less than 50 feet or greater than 5,500 feet may not be used. Release heights may not be extrapolated beyond the limits of any table and instead the minimum or maximum height will be used. If distances and release heights are not interpolated, the next lowest height and lesser distances shall be used for determination of maximum acceptable emissions. All facilities exempted from the distance to the property line restriction in subsection (e)(2) of this section must use 50 feet as the distance to the property line for those ambient standards based on property line. (B) Screening Modeling. A screening model may be used to demonstrate acceptable emissions from an OGS under this section if all of the parameters in the screening modeling protocol provided by the commission are met. (C) Dispersion Modeling. A refined dispersion model may be used to demonstrate acceptable emissions from an OGS under this section if all of the parameters in the refined dispersion modeling protocol provided by the commission are met. (l) The requirements in this subsection are applicable to new and modified facilities except those specified in subsection (a)(1) of this section. Any oil or gas production facility, carbon dioxide separation facility, or oil or gas pipeline facility consisting of one or more tanks, separators, dehydration units, free water knockouts, gunbarrels, heater treaters, natural gas liquids recovery units, or gas sweetening and other gas conditioning facilities, including sulfur recovery units at facilities conditioning produced gas containing less than two long tons per day of sulfur compounds as sulfur are permitted by rule, provided that the following conditions of this subsection are met. This subsection applies only to those facilities named which handle gases and liquids associated with the production, conditioning, processing, and pipeline transfer of fluids found in geologic formations beneath the earth's surface. (1) Compressors and flares shall meet the requirements of §106.492 and §106.512 of this title (relating to Flares; and Stationary Engines and Turbines, respectively). Oil and gas facilities which are authorized under historical standard exemptions and remain unchanged maintain that authorization and the remainder of this subsection does not apply. (2) Total emissions, including process fugitives, combustion unit stacks, separator, or other process vents, tank vents, and loading emissions from all such facilities constructed at a site under this subsection shall not exceed 25 tpy each of SO2, all other sulfur compounds combined, or all VOCs combined; and 250 tpy each of NOX and CO. Emissions of VOC and sulfur compounds other than SO2 must include gas lost by equilibrium flash as well as gas lost by conventional evaporation. (3) Any facility handling sour gas shall be located at least one-quarter mile from any recreational area or residence or other structure not occupied or used solely by the owner or operator of the facility or the owner of the property upon which the facility is located. (4) Total emissions of sulfur compounds, excluding sulfur oxides, from all vents shall not exceed 4.0 pounds per hour (lb/hr) and the height of each vent emitting sulfur compounds shall meet the following requirements, except in no case shall the height be less than 20 feet, where the total emission rate as H2S, lb/hr, and minimum vent height (feet), and other values may be interpolated: (A) 0.27 lb/hr at 20 feet; (B) 0.60 lb/hr at 30 feet; (C) 1.94 lb/hr at 50 feet; (D) 3.00 lb/hr at 60 feet; and (E) 4.00 lb/hr at 68 feet. (5) Before operation begins, facilities handling sour gas shall be registered with the executive director in Austin using Form PI-7 along with supporting documentation that all requirements of this subsection will be met. For facilities constructed under §106.353 of this title (relating to Temporary Oil and Gas Facilities), the registration is required before operation under this subsection can begin. If the facilities cannot meet this subsection, a permit under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) is required prior to continuing operation of the facilities. (m) The following tables shall be used as required in this section. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §106.352 adopted to be effective February 27, 2011, 36 TexReg 943; amended to be effective February 2, 2012, 37 TexReg 333; amended to be effective November 22, 2012, 37 TexReg 9100.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scO/s106.353"><num value="106.353">§106.353</num><heading>Temporary Oil and Gas Facilities</heading><content>Temporary separators, tanks, meters, and fluid-handling equipment used for a period not to exceed 90 operating days are permitted by rule, provided that all the following conditions of this section are satisfied.(1) The purpose of the 90-day period is to test the content of a subsurface stratum believed to contain oil or gas and/or to establish the proper design of a permanent fluid-handling facility.(2) Any sour gas produced during this test period shall be burned in a smokeless flare which meets the requirements of conditions of §106.492(1)(C) and (2)(A) and (C) of this title (relating to Flares).(3) Total emissions of reduced sulfur compounds, excluding sulfur oxides, but including hydrogen sulfide, shall not exceed 4.0 pounds per hour and the emission point height of any vent of reduced sulfur compounds shall meet the requirements of §106.352(4) of this title (relating to Oil and Gas Production Facilities).(4) Operation of a facility authorized by this section beyond the 90-day period shall not be allowed unless such operation is authorized under exemption from permitting or is permitted under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification).</content><note type="source"><p>Source Note: The provisions of this §106.353 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scO/s106.354"><num value="106.354">§106.354</num><heading>Iron Sponge Gas Treating Unit</heading><content>Iron sponge gas treating units processing streams containing less than 60 pounds per hour of hydrogen sulfide are permitted by rule provided that the following conditions of this section are satisfied:(1) the plant is located at least 1/4 mile from any recreational area or residence or other structure not occupied or used solely by the owner of the facility or the owner of the property upon which the facility is located;(2) during replacement of the iron oxide impregnated chips, the unit is:(A) isolated from the main system and the pressure is reduced to 0.5 psia or less through a gas-fired flare; or(B) sulfur compound emissions to the atmosphere do not exceed one ton per replacement;(3) the spent iron oxide chips being replaced are properly handled to avoid spontaneous ignition and avoid an odor nuisance.</content><note type="source"><p>Source Note: The provisions of this §106.354 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scO/s106.355"><num value="106.355">§106.355</num><heading>Pipeline Metering, Purging, and Maintenance</heading><content>Metering, purging, and maintenance operations for gaseous and liquid petroleum pipelines (including ethylene, propylene, butylene, and butadiene pipelines), between separate sites as defined in §122.10(29) of this title (relating to General Definitions), are permitted by rule provided that operations are conducted according to the following conditions of this section:(1) emissions of volatile organic compounds, except equipment leak fugitive emissions, are burned in a smokeless flare; or(2) total uncontrolled emissions of any air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen may not exceed one ton during any metering, purging, or maintenance operation. Uncontrolled butadiene emissions may not exceed 0.04 pounds per hour.(3) venting of sweet, natural gas from pipelines is exempt from paragraphs (1), (2), and (5) of this section. Operators may not vent gas in areas of known or suspected ignition sources.(4) if any maintenance activity cannot meet all of the requirements of this section, or the emissions are not authorized under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification), then activities must comply with §101.7 and §101.11 of this title (relating to Maintenance, Start-up and Shutdown Reporting, Recordkeeping, and Operational Requirements; and Demonstrations).(5) records of all maintenance and purging emissions must be kept by the owner or operator of the facility or group of facilities at the nearest office within Texas having day-to-day operational control. These records must include all information required in this paragraph and in paragraphs (1) - (4) of this section. Resetting flow meters (changing orifice plates, etc.) and calibration of meters are considered routine operations under this rule, not maintenance or purging. Records must identify the following for all maintenance and purging activities covered by this section:(A) the type and reason for the activity;(B) the processes and equipment involved;(C) the date, time, and duration of the activity; and(D) the air contaminants and amounts which are emitted as a result of the activity.</content><note type="source"><p>Source Note: The provisions of this §106.355 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653; amended to be effective November 1, 2001, 26 TexReg 8518.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scO/s106.359"><num value="106.359">§106.359</num><heading>Planned Maintenance, Startup, and Shutdown (MSS) at Oil and Gas Handling and Production Facilities</heading><content>(a) Applicability. This section applies to certain authorized oil and gas handling or production facilities or sites, and authorizes emissions from planned maintenance, startup, and shutdown (MSS) facilities and activities, and any associated emission capture and control facilities, if all of the applicable requirements of this section are met.(1) This section does not apply to oil and gas handling or production facilities or sites authorized under §106.352(a) - (k) of this title (relating to Oil and Gas Handling and Production Facilities), subsections (a) - (k) of the non-rule Air Quality Standard Permit for Oil and Gas Handling and Production Facilities, §106.355 of this title (relating to Pipeline Metering, Purging, and Maintenance), or Subchapter U of this chapter (relating to Tanks, Storage, and Loading).(2) This section may not be used to supersede an existing authorization for planned MSS under this chapter or §116.620 of this title (relating to Installation and/or Modification of Oil and Gas Facilities) unless any previously represented emission control methods, techniques, and devices remain in use and there is no resulting increase in hourly emissions.(b) Activities. Planned MSS activities and facilities authorized by this section include the following:(1) engine, compressor, turbine, and other combustion facilities maintenance;(2) repair, adjustment, calibration, lubrication, and cleaning of site process equipment;(3) replacement of piping components, pneumatic controllers, boiler refractories, wet and dry seals, meters, instruments, analyzers, screens, and filters;(4) turbine or engine component swaps;(5) piping used to bypass a facility during maintenance;(6) planned MSS activities with the same character and quantity of emissions as those listed in paragraphs (1) - (5) of this subsection;(7) pigging and purging of piping;(8) blowdowns;(9) emptying, purging, degassing, or refilling of process equipment, storage tanks and vessels (except landing floating roof tanks for convenience purposes), if subparagraphs (A) - (C) of this paragraph are met.(A) all contents from process equipment or tanks must be removed to the maximum extent practicable prior to opening facilities to commence degassing and maintenance.(B) facilities must be degassed using best management practices to ensure air contaminants are removed from the system to the extent allowed by facility design.(C) tanks may be emptied or degassed by forced ventilation if:(i) only one vacuum truck is in use at any time;(ii) emissions are directed out the top of the tank; or(iii) emissions are routed through a closed system to a control device.(10) abrasive blasting, surface preparation, and surface coating of facilities and structures used at the site in oil and gas handling and production.(c) Best Management Practices.(1) All facilities with the potential to emit air contaminants must be maintained in good condition and operated properly.(2) Each permit holder shall establish, implement, and update, as appropriate, a program to maintain and repair facilities as required by paragraph (1) of this subsection. The minimum requirements of this program must include:(A) a maintenance program developed by the permit holder for all facilities that is consistent with good air pollution control practices, or alternatively, manufacturer's specifications and recommended programs applicable to facility performance and the effect on emissions;(B) cleaning and routine inspection of all facilities;(C) repair of facilities on timeframes that minimize failures and maintain performance;(D) training of personnel who implement the maintenance program; and(E) records of conducted planned MSS activities.</content><note type="source"><p>Source Note: The provisions of this §106.359 adopted to be effective September 10, 2013, 38 TexReg 5271.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scP"><num value="P">SUBCHAPTER P</num><heading>PLANT OPERATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scP/s106.371"><num value="106.371">§106.371</num><heading>Cooling Water Units</heading><content>Water cooling towers, water treating systems for process cooling water or boiler feedwater, and water tanks, reservoirs, or other water containers designed to cool, store, or otherwise handle water (including rainwater) that have not been used in direct contact with gaseous or liquid process streams containing carbon compounds, sulfur compounds, halogens or halogen compounds, cyanide compounds, inorganic acids, or acid gases are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.371 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scP/s106.372"><num value="106.372">§106.372</num><heading>Industrial Gases</heading><content>Any air separation, or other industrial gas production, storage, or packaging facility is permitted by rule. Industrial gases, for purposes of this section, include only oxygen, nitrogen, helium, neon, argon, krypton, and xenon.</content><note type="source"><p>Source Note: The provisions of this §106.372 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scP/s106.373"><num value="106.373">§106.373</num><heading>Refrigeration Systems</heading><content>Refrigeration systems, including storage tanks used in refrigeration systems, that use one of the following categories of refrigerant are permitted by rule: (1) simple asphyxiants limited to argon, carbon dioxide, ethane, helium, hydrogen, methane, neon, nitrogen, propane, propylene, or liquefied natural gas; or (2) any other chemical, excluding anhydrous ammonia, with a short-term effects screening level (ESL) published in the commission's ESL list greater than 150 µg/m3 ; (3) anhydrous ammonia (ammonia) provided: (A) the facility is registered with the commission's Office of Permitting, Remediation, and Registration in Austin using Form PI-7; and (B) the system is maintained in good working order and such that ammonia leaks are not detectable beyond the operator's property line.</content><note type="source"><p>Source Note: The provisions of this §106.373 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective July 8, 1998, 23 TexReg 6966; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scP/s106.374"><num value="106.374">§106.374</num><heading>Lime Slaking Facilities</heading><content>Any lime slaking facility used to mix quicklime with water is permitted by rule, provided the following conditions of this section are met:(1) the mixing vessel shall be horizontal;(2) the mixing vessel shall use interior mechanical agitation parallel to the bottom and agitate the water over the full length of the vessel;(3) quicklime shall be injected into the mixing vessel as follows:(A) where injection is from a pneumatic transfer system, the quicklime shall be injected at a point at least 12 inches under the surface of the agitated water; or(B) where injection is from a non-pneumatic conveying system unloading at the top of the vessel, emissions from any vent on the vessel shall be controlled by an appropriately sized wet scrubber;(4) there shall be no visible emissions (other than uncombined water).</content><note type="source"><p>Source Note: The provisions of this §106.374 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scP/s106.375"><num value="106.375">§106.375</num><heading>Aqueous Solutions for Electrolytic and Electroless Processes</heading><content>Equipment using aqueous solutions is permitted by rule, providing the conditions of this section are met.(1) This section authorizes the following operations:(A) anodizing, chromate conversion coating processes, electroplating, electrodeposition, electroless plating, electrolytic polishing, and electrolytic stripping, as follows.(i) For plating onto or stripping from any basis substrate, only brass, bronze, cadmium, copper, iron, lead, nickel, tin, zinc, and precious metals may be used.(ii) Chromic acid shall not be used in any step of a process which involves electrical current, air agitation, or any other factor which causes the chromic acid to bubble or mist.(B) cleaning, electroless stripping, etching, or other surface preparation and finishing, not including chemical milling or electrolytic metal recovery and reclaiming systems.(2) Operating conditions.(A) Hydrochloric acid tank operating conditions shall not exceed:(i) a temperature of 100 degrees Fahrenheit and a hydrochloric acid concentration of 19.0% by solution weight; or(ii) a partial pressure of 0.5 millimeters of mercury.(B) Hydrochloric acid in any state, and any aqueous solution which bubbles or mists due to electrical current, air agitation, or any other factor shall be used in an enclosed building. If the doors and windows of the building are open for any reason other than temporarily for access, emissions shall either be:(i) captured and exhausted using forced air through a stack with an unobstructed minimum vertical discharge of four feet above the peak of the roofline; or(ii) controlled with a fume suppressant.(3) If a facility cannot comply with the hydrochloric acid temperature and concentration limits in paragraph (2)(A)(i) of this section, then to demonstrate compliance with paragraph (2)(A)(ii) of this section, the maximum hydrochloric acid temperature and concentration for each tank shall be recorded daily. At least once per month, the recorded data shall be converted to partial pressure. All data shall be maintained for the most recent 24-month period.</content><note type="source"><p>Source Note: The provisions of this §106.375 adopted to be effective August 4, 1998, 23 TexReg 7830; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scP/s106.376"><num value="106.376">§106.376</num><heading>Decorative Chrome Plating</heading><content>Decorative chromium electroplating operations that have a maximum combined rated capacity for all decorative chrome plating rectifiers of not more than 5,000 amperes and which use a fume suppressant or other equivalent control as sufficient to meet §113.190 of this title (relating to Chromium Emissions from Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks (40 CFR 63, Subpart N)) are permitted by rule. This permit by rule may not be used at any site where other chrome plating or chromic acid anodizing operations are conducted.</content><note type="source"><p>Source Note: The provisions of this §106.376 adopted to be effective November 26, 1997, 22 TexReg 11387; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scQ"><num value="Q">SUBCHAPTER Q</num><heading>PLASTICS AND RUBBER</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scQ/s106.391"><num value="106.391">§106.391</num><heading>Rubber and Plastic Curing Presses</heading><content>Presses used for the curing of rubber products and plastic products are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.391 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scQ/s106.392"><num value="106.392">§106.392</num><heading>Thermoset Resin Facilities</heading><content>Facilities using thermoset resins (excluding resins that do not emit air contaminants) to manufacture or repair products are permitted by rule, provided that the following conditions of this section are satisfied for paragraph (1) and either paragraph (2) or (3) of this section.(1) The following requirements shall apply to all thermoset resin facilities.(A) Before construction begins, the facility must be registered with the commission using Form PI-7.(B) Records of resin and acetone usage shall be kept on a monthly and calendar year-to-date basis to show compliance with this section, and shall be maintained for the most recent 24 months.(C) All resin spraying and cleaning operations shall be conducted between two hours before sunrise and two hours after sunset. The exhaust fan(s) must be operating during and for at least 30 minutes after any usage of resin and/or cleaning solvents.(D) All solid trim grinding operations shall be vented through a dry filter system or a water wash system which has a particulate removal efficiency of at least 95%. Particulates trapped in the dry filter system or water wash sludge shall be handled and stored in a way to minimize the escape of fugitive dust emissions.(E) No more than five tons of acetone shall be used per year (gross usage minus waste disposal).(2) The following requirements shall apply to facilities that have spraying operations (the facilities may include non-spraying operations).(A) No more than 75 tons of resin and gelcoat combined shall be used per year (gross usage minus waste disposal).(B) All resin spraying operations shall be conducted in a booth or an enclosed work area and the emissions shall be exhausted through elevated stack(s). All stacks shall discharge vertically to the atmosphere with no restrictions or obstructions to flow. Each stack shall meet one of the following minimum requirements:(i) a flow rate of 20,000 actual cubic feet per minute (acfm) and the greater of six feet above the peak of the manufacturing building or 25 feet above ground level; or(ii) a flow rate of 15,000 acfm and the greater of six feet above the peak of the manufacturing building or 30 feet above ground level.(C) No more than 1,000 pounds per year of resin shall be used outdoors.(D) If annual resin usage is less than 1,000 pounds, a facility is exempt from all requirements of this section except recordkeeping (paragraph (1)(B) of this section).(3) The following requirements shall apply only to non-spraying operations.(A) No more than 150 tons of resin and gelcoat combined shall be used per year (gross usage minus waste disposal).(B) All resin operations shall be conducted in a booth or an enclosed work area or the manufacturing building and the emissions shall be exhausted through elevated stack(s). All stacks shall discharge vertically to the atmosphere with no restrictions or obstructions to flow. Each stack shall meet one of the following minimum requirements:(i) a flow rate of 20,000 acfm and the greater of six feet above the peak of the manufacturing building or 25 feet above ground level; or(ii) a flow rate of 15,000 acfm and the greater of six feet above the peak of the manufacturing building or 30 feet above ground level.(C) No more than 3,000 pounds per year of resin shall be used outdoors.(D) If annual resin usage is less than 3,000 pounds, a facility is exempt from all requirements of this section except recordkeeping (paragraph (1)(B) of this section).</content><note type="source"><p>Source Note: The provisions of this §106.392 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scQ/s106.393"><num value="106.393">§106.393</num><heading>Conveyance and Storage of Plastic and Rubber Material</heading><content>Equipment used exclusively for conveying and storing plastic and/or rubber solid materials is permitted by rule, provided that no visible emissions occur and all the conditions of this section are met:(1) equipment used for conveying of powders or resins to storage silos must be equipped with fabric filter(s) having a maximum filtering velocity of 4.0 feet per minute (ft/min) with mechanical shaking or 7.0 ft/min with air cleaning; and(2) transfer of powders or resins is accomplished in an enclosed system.</content><note type="source"><p>Source Note: The provisions of this §106.393 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scQ/s106.394"><num value="106.394">§106.394</num><heading>Plastic Compression and Injection Molding</heading><content>Equipment used for compression molding and injection molding of plastics is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.394 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scQ/s106.395"><num value="106.395">§106.395</num><heading>Equipment for Mixing Plastic and Rubber (No Solvent)</heading><content>Mixers, blenders, roll mills, or calenders for rubber or plastics are permitted by rule, provided the following conditions of this section are satisfied. Mixers, blenders, roll mills, or calenders handling or adding asbestos shall not be eligible to be permitted by rule under this section.(1) Organic solvents, diluents, or thinners shall not be used.(2) Material in powder form shall not be added unless the mixer, blender, roll mill, or calender is vented to a fabric filter having a maximum filtering velocity of 4.0 feet per minute (ft/min) with mechanical cleaning, or 7.0 ft/min with automatic air cleaning.(3) There shall be no visible emissions.</content><note type="source"><p>Source Note: The provisions of this §106.395 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scQ/s106.396"><num value="106.396">§106.396</num><heading>Equipment for Mixing Plastic and Rubber (With Solvent)</heading><content>Roll mills or calenders for rubber or plastics in which organic solvents, diluents, or thinners are used are permitted by rule, provided that before construction begins, the facility is registered with Form PI-7 and information regarding process rate and type of material emitted is submitted.</content><note type="source"><p>Source Note: The provisions of this §106.396 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scR"><num value="R">SUBCHAPTER R</num><heading>SERVICE INDUSTRIES</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scR/s106.411"><num value="106.411">§106.411</num><heading>Steam or Dry Cleaning Equipment</heading><content>Equipment used exclusively for steam or dry cleaning of fabrics, plastics, rubber, wood, or vehicle engines or drive trains is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.411 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scR/s106.412"><num value="106.412">§106.412</num><heading>Fuel Dispensing</heading><content>Equipment used exclusively to store and dispense motor fuels into heavy and light-duty motor vehicles and marine vessels or other watercraft, aircraft, and railroad locomotive engines is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.412 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scR/s106.414"><num value="106.414">§106.414</num><heading>Packaging Lubes and Greases</heading><content>Equipment used exclusively for the packaging of lubricants or greases is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.414 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scR/s106.415"><num value="106.415">§106.415</num><heading>Laundry Dryers</heading><content>Laundry dryers, extractors, or tumblers used for fabrics cleaned with water solutions of bleach or detergents are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.415 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scR/s106.416"><num value="106.416">§106.416</num><heading>Uranium Recovery Facilities</heading><content>A uranium in-situ solution recovery facility producing yellowcake is permitted by rule, provided that the facility operates according to the following conditions of this section.(1) The facility is located at least 1/4 mile from any recreational area or residence or other structure not occupied or used solely by the owner of the facility or the owner of the property upon which the facility is located.(2) The facility shall have no emissions other than:(A) ammonia which shall not exceed an emission rate of 2.0 pounds per hour (lb/hr); and(B) particulate dust from yellowcake drying not to exceed 0.1 lb/hr.(3) The facility shall have no visible particulate emissions from any part of the process.(4) Before construction begins, the facility shall be registered with the commission's Office of Permitting, Remediation, and Registration in Austin using Form PI-7.</content><note type="source"><p>Source Note: The provisions of this §106.416 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scR/s106.417"><num value="106.417">§106.417</num><heading>Ethylene Oxide Sterilizers</heading><content>Ethylene oxide (EO) sterilizing chambers/operations located on the same or contiguous property and under common ownership that use 1,000 pounds or less of EO per year are permitted by rule provided that the following conditions of this section are satisfied.(1) Any sterilizer usage that is less than 0.04 pounds of EO (20 milliliters liquid EO) per charge and the annual usage is 4.0 pounds or less of EO for the entire facility, is exempted from all requirements.(2) All sterilizers must meet the following conditions.(A) EO shall only be handled by medical professionals or appropriately trained personnel in medical and industrial use areas.(B) Written records shall be maintained for a minimum of two years and shall be made available to representatives of the commission upon request. Records shall include:(i) documentation of the date and time of each sterilizer operation cycle;(ii) the total pounds of EO purchased and used per calendar year listed as monthly totals;(iii) leak test results.(C) Leak tests of each sterilizer system shall be performed at least every six months. Results of the tests shall be made available to the commission upon request.(D) EO shall only be used alone or in combination with carbon dioxide, nitrogen, chlorofluorocarbon, hydrochlorofluorocarbon diluent gases, or other mixtures as approved by the executive director.(E) The sterilizer vent system exhaust stack shall meet the following conditions.(i) The stack shall be uncapped and exhaust vertically upward.(ii) The stack height shall be extended to at least 15 feet above the roof line of the building; and the stack tip shall be located at least 25 feet from any opening to the building interior, such as fresh air intake, unsealed windows, or pedestrian traffic areas. Stacks on multi-level roofs must only extend 15 feet above the roof upon which the stack is located.(iii) Stack exit velocity shall be at least 50 feet per second.(3) The following conditions apply only to sterilizers that use more than four pounds, but less than 100 pounds of EO per year.(A) Sterilizer systems which vent entirely to atmosphere shall not exceed 0.5 pounds of EO used per cycle. Sterilizer systems which use nonrecirculating, water sealed vacuum systems shall not exceed two pounds of EO charged per cycle. For facilities with multiple sterilizers, the usage rate is based on total EO usage at any given time.(B) Any combination of sterilizers located on the same or contiguous property under common ownership shall not exceed a total EO usage of less than 100 pounds per year.(4) The following conditions apply only to sterilizers that use between 100 and 1,000 pounds of EO per year.(A) Before construction begins, the facility shall be registered with the commission using Form PI-7.(B) The sterilizer chamber exhaust shall vent through an emission control device that will continuously achieve a minimum EO removal efficiency of 99%. Thermal incineration shall not be used to control sterilizer exhaust emissions if chlorofluorocarbons are used as a diluent.(C) There shall be no discharge of water containing dissolved EO through a sanitary sewer system.(D) Any combination of sterilizers located on the same or contiguous property under common ownership shall be limited to a total EO usage of 1,000 pounds per year.</content><note type="source"><p>Source Note: The provisions of this §106.417 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scR/s106.418"><num value="106.418">§106.418</num><heading>Printing Presses</heading><content>Printing operations (including, but not limited to, screen printers, ink-jet printers, presses using electron beam or ultraviolet light curing, and labeling operations) and supporting equipment (including, but not limited to, corona treaters, curing lamps, preparation, and cleaning equipment) which directly supports the printing operation are permitted by rule, provided that all the following conditions of this section are satisfied.(1) The uncontrolled emission of volatile organic compounds (VOC) and solvents (including, but not limited to, those used for printing, cleanup, or makeup) shall not exceed the following rates:(A) 15 tons per year (tpy) for any single printing operation proposed to be covered by this section; and(B) 25 tpy for all printing operations on the property covered by permits by rule.(2) Facilities which release ten tpy or more of VOC emissions from all printing operations permitted by rule at the site must register with the commission using Form PI-7.(3) Copying and duplicating equipment employing the xerographic method are exempt from paragraphs (4) - (6) of this section.(4) Printing presses covered by this section shall not utilize heat set, thermo set, or oven-dried inks. Heated air may be used to shorten drying time, provided the temperature does not exceed 194 degrees Fahrenheit (90 degrees Celsius).(5) Records of ink and solvent usage shall be kept in sufficient detail to show compliance with paragraph (1) of this section and shall be maintained for a two-year rolling retention period.(6) Screen printing operations requiring temperatures greater that 194 degrees Fahrenheit (90 degrees Celsius) to set the ink are exempt from paragraph (4) of this section.(7) Facilities located in ozone nonattainment areas shall meet the requirements of Chapter 115, Subchapters B and E of this title (relating to General Volatile Organic Compound Sources and Solvent- Using Processes).</content><note type="source"><p>Source Note: The provisions of this §106.418 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective July 8, 1998, 23 TexReg 6966; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scR/s106.419"><num value="106.419">§106.419</num><heading>Photographic Process Equipment</heading><content>Photographic process equipment by which an image is reproduced upon material sensitized to radiant energy is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.419 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scS"><num value="S">SUBCHAPTER S</num><heading>SURFACE COATING</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scS/s106.431"><num value="106.431">§106.431</num><heading>Milling and Grinding of Coatings and Molding Compounds</heading><content>Equipment used exclusively to mill or grind coatings and molding compounds where all materials charged are in a paste form is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.431 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scS/s106.432"><num value="106.432">§106.432</num><heading>Dipping Tanks and Containers</heading><content>Containers, reservoirs, or tanks used exclusively for dipping operations for coating objects with oils, waxes, or greases where no organic solvents, diluents, or thinners are used; or dipping operations for applying coatings of natural or synthetic resins which contain no organic solvents are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.432 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scS/s106.433"><num value="106.433">§106.433</num><heading>Surface Coat Facility</heading><content>Surface coating or stripping facilities, excluding vehicle repair and refinishing shops, shall meet the following conditions of this section to be permitted by rule.(1) This section does not cover metalizing (spraying molten metal onto a surface to form a coating). However, this section does cover the use of coatings which contain metallic pigments.(2) All facilities covered by this section at a site shall implement good housekeeping procedures to minimize fugitive emissions, including the following.(A) All spills shall be cleaned up immediately.(B) The booth or work area exhaust fans shall be operating when cleaning spray guns and other equipment.(C) All new and used coatings and solvents shall be stored in closed containers. All waste coatings and solvents shall be removed from the site by an authorized disposal service or disposed of at a permitted on-site waste management facility.(3) Drying or curing ovens shall either be electric or meet the following conditions:(A) The maximum heat input to any oven must not exceed 40 million British thermal units per hour (Btu/hr).(B) Heat shall be provided by the combustion of one of the following: sweet natural gas; liquid petroleum gas; fuel gas containing no more than 5.0 grains of total sulfur compounds (calculated as sulfur) per 100 dry standard cubic foot; or Number 2 fuel oil with not more than 0.3% sulfur by weight.(4) No add-on control equipment shall be used to meet the emissions limits of this section. The total uncontrolled emissions from the coating materials (as applied) and cleanup solvents shall not exceed the following for all operations:(A) 25 tons per year (tpy) of volatile organic compounds (VOC) and ten tpy of exempt solvents for all surface coating and stripping operations covered by section at a site;(B) 30 pounds per hour (lb/hr) of VOC and 5.0 lb/hr of exempt solvents for all surface coating and stripping operations covered by this section at a site;(C) if emissions are less than 0.25 lb/hr of VOC and/or exempt solvents, a facility is exempt from the remaining requirements of this section, including paragraphs (5) - (9) of this section.(5) Opacity of visible emissions shall not exceed 5.0%. Compliance shall be determined by the United States Environmental Protection Agency Method 9 averaged over a six-minute period.(6) The following conditions apply to surface coating operations performed indoors, in a booth, or in an enclosed work area:(A) no more than six lb/hr of VOC emissions, averaged over any five-hour period, and 500 pounds per week per booth or enclosed work area;(B) minimum face velocity at the intake opening of each booth or work area is 100 feet per minute (ft/min). Emissions shall be exhausted through elevated stacks that extend at least 1.5 times the building height above ground level. All stacks shall discharge vertically; rain protection shall not restrict or obstruct vertical flow;(C) for spraying operations, emissions of particulate matter must be controlled using either a water wash system or a dry filter system with a 95% removal efficiency as documented by the manufacturer. The face velocity at the filter shall not exceed 250 ft/min or that specified by the filter manufacturer, whichever is less. Filters shall be replaced whenever the pressure drop across the filter no longer meets the manufacturer's recommendation.(7) For surface coating operations that are performed outdoors or in a non-enclosed work area, or for indoor operations that do not meet the conditions of paragraph (6) of this section, the following conditions apply.(A) No more than six lb/hr of VOC emissions, averaged over any five-hour period, and 500 pounds per week shall be emitted at any time for all operations authorized by this paragraph.(B) If coatings applied with spray equipment contain more than 0.1% by weight of chromates, lead, cadmium, selenium, strontium, or cobalt, then total VOC emissions shall be further limited to 240 pounds per week and 2,000 pounds per year. If coatings are applied with non-spray equipment (such as brushes, rollers, dipping or flow coating), the additional restrictions in this paragraph do not apply.(C) Coating operations shall be conducted at least 50 feet from the property line and at least 250 feet from any recreational area, residence, or other structure not occupied or used solely by the owner or operator of the facility or the owner of the property upon which the facility is located.(D) Before construction of the facility begins, written site approval shall be received from the appropriate regional office of the commission or any local program having jurisdiction.(8) The following records shall be maintained at the plant site for the most recent 24 months and be made immediately available to the commission or any pollution control agency with jurisdiction:(A) material safety data sheets for all coating materials and solvents;(B) data of daily coatings and solvent use and the actual hours of operation of each coating or stripping operation;(C) a monthly report that represents actual hours of operation each day, and emissions from each operation in the following categories:(i) pounds per hour;(ii) pounds per day;(iii) pounds per week; and(iv) tons emitted from the site during the previous 12 months;(D) examples of the method of data reduction including units, conversion factors, assumptions, and the basis of the assumptions.(9) Before construction begins, the facility shall be registered with the commission using Form PI-7.</content><note type="source"><p>Source Note: The provisions of this §106.433 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scS/s106.434"><num value="106.434">§106.434</num><heading>Powder Coating Facility</heading><content>Surface coating operations utilizing powder coating materials with the powder applied by an electrostatic powder spray gun or an electrostatic fluidized bed are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.434 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scS/s106.435"><num value="106.435">§106.435</num><heading>Classic or Antique Automobile Restoration Facility</heading><content>"Classic" or "Antique" vehicle restoration facilities (the terms "classic" and "antique" vehicle as determined by the Texas Department of Public Safety Vehicle Inspection and Registration Section under Texas Transportation Code, Chapter 502, §502.274 (concerning Classic Motor Vehicles) or §502.275 (concerning Certain Antique Vehicles; Offense)) qualify for this permit by rule if all of the following conditions of this section are met.(1) All automobile body/chassis abrasive blast cleaning and coating operations shall be performed in a closed building or enclosure that is located at least 50 feet away from any property lines; or the facility shall be located a minimum of 300 feet from any recreational area or residence not occupied or used solely by the owner of the facility or the owner of the property upon which the facility is located, except that structures occupied by security or watch personnel may be located contiguously.(2) Total abrasive usage shall be less than 100 pounds per hour, 500 pounds per day, and five tons per year.(3) Combined clean-up material and paint usage, including solvents used for cleaning or thinning purposes, shall be less than five gallons per day and 100 gallons per year.(4) All waste coatings, solvents, and spent automotive fluids shall be stored in covered containers and disposed of properly.(5) The owner or operator of the restoration facilities shall maintain daily and annual records in sufficient detail to verify the usage limits in paragraphs (2) and (3) of this section. These records shall be maintained for a minimum of two years and made available at the request of personnel from the commission or any local pollution control program having jurisdiction.(6) Facilities conducting vehicle repair and refinishing operations under §106.436 of this title (relating to Auto Body Refinishing Facility) may also conduct classic or antique vehicle restoration.</content><note type="source"><p>Source Note: The provisions of this §106.435 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective August 4, 1998, 23 TexReg 7830; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scS/s106.436"><num value="106.436">§106.436</num><heading>Auto Body Refinishing Facility</heading><content>Body repair and refinishing of motorcycle, passenger car, van, light truck and heavy truck and other vehicle body parts, bodies, and cabs is permitted by rule, provided that all the following conditions of this section are met.(1) Before construction begins, the facility shall be registered with the commission's Office of Permitting, Remediation, and Registration in Austin using Form PI-7-124.(2) Facilities which satisfy one of the following conditions.(A) Spray operations that use less than 1/2 pint of coatings and solvents per hour are exempt from all of the requirements of this section except for paragraphs (3), (4), (16), and (17) of this section.(B) Spray operations that use less than two gallons of coatings and solvents per week are exempt from all of the requirements of this section except for paragraphs (3), (4), (8), (11), (12), (14), (16), and (17) of this section unless additional controls are specified in §115.421 of this title (relating to Emission Specifications). Additionally, all overspray emissions must be vented through a filter system that meets the requirements of paragraph (7) of this section.(3) Good housekeeping is practiced: spills are cleaned up as soon as possible, equipment is maintained according to manufacturers' instructions, and property is kept clean. In addition, all waste coatings, solvents, and spent automotive fluids including, but not limited to, engine oil, gear oil, transmission fluid, brake fluid, anti-freeze, fresh or waste fuels, and spray booth filters or water wash sludge are disposed of properly. Prior to disposal, all liquid waste shall be stored in covered containers.(4) There are no visible emissions leaving the property.(5) All spray coating operations which coat more than nine square feet (one panel) shall be performed in a totally enclosed filtered spray booth or totally enclosed filtered spray area with an air intake area of less than 100 square feet. All spray areas shall be equipped with a fan that achieves one of the following requirements:(A) a flow capacity of at least 10,000 cubic feet per minute;(B) a face velocity of at least 100 feet per minute.(6) All spray coating operations which coat less than nine square feet (one panel) and are not in a totally enclosed booth shall be performed on or in a dedicated preparation area which meets the following requirements.(A) The preparation area ventilation system shall be operating during spraying, and the exhaust air shall either be vented through a stack to the atmosphere or the air shall be recirculated back into the shop through a carbon adsorption system.(B) If the preparation area is equipped with a carbon adsorption system, the carbon shall be replaced at the manufacturer's recommended intervals to minimize solvent emissions.(C) The preparation area ventilation system shall be equipped with a filter or filter system to control paint overspray.(7) All paint booth, spray area, and preparation area overspray (exhaust) filters or filter systems shall have a particulate control efficiency of at least 90%.(8) High transfer efficiency coating application equipment shall be used, such as high volume low pressure spray guns. Electrostatic spray guns or other methods, if demonstrated to provide equivalent or better transfer efficiency are acceptable.(9) Cleanup emissions shall be minimized by implementing the following procedures:(A) spray and other equipment cleanup is totally enclosed during washing, rinsing, and draining. Non- enclosed cleaners may be used if the vapor pressure of the cleaning solvent is less than 100 millimeters of mercury at 68 degrees Fahrenheit and the solvent is directed toward a drain that leads directly to a remote reservoir;(B) all wash solvents are kept in an enclosed reservoir that is covered at all times, except when being refilled with fresh solvents;(C) all waste solvents and other cleaning materials are kept in closed containers.(10) All spray booth spray area, preparation area, and shop heaters that are not electrically heated must use pipeline quality natural gas or liquified petroleum gas only and the heaters are five million British thermal units per hour or smaller. No firing of waste coatings, solvents, oils, or other automotive fluids shall be permitted on-site.(11) All spray booth, spray area, and preparation area stack heights shall meet the following requirements.(A) If the stack is located within 200 feet of a building that is taller than the body shop building, the stack height shall be at least 1.2 times the height of the tallest building or higher as measured from ground level.(B) If the stack is located greater than 200 feet from a building taller than the body shop building, the stack height shall be at least 1.2 times the height of the body shop building as measured from ground level.(C) If any ground level elevation within 250 feet of the spray booth stack is greater than the stack height required in subparagraphs (A) and (B) of this paragraph, this section cannot be used.(12) Spray booth, spray area, and preparation area stacks shall be located at least 50 feet away from any residence, recreation area, church, school, child care facility, or medical or dental facility.(13) Rain caps, goose neck exhaust, or other stack heads that would restrict or obstruct vertical discharge of air contaminants shall not be allowed.(14) The volatile organic compound (VOC) content limits specified in §115.421 of this title, concerning automobile and light-duty truck coatings, shall apply to the facility regardless of its location.(15) Definitions of the coating types specified in subparagraphs (A) - (H) of this paragraph are based on §115.10 of this title (relating to Definitions), and the VOC content limits shall be those listed in §115.421 of this title. Shop use of the coating categories listed in subparagraphs (A) - (H) of this paragraph in gallons per month shall not be exceeded:(A) cleanup solvents--50 gallons per month;(B) wipe solvents--50;(C) precoat--50;(D) pretreatment--50;(E) sealers--50;(F) primers/primer surfacer--175;(G) top coats--320;(H) specialty coatings--50.(16) The following records and reports shall be maintained at the shop site for a consecutive 24-month period and be made immediately available upon request of personnel from the commission or any other air pollution control agency with jurisdiction:(A) material safety data sheet (MSDS) or other coating data sheets on paint and solvent systems used during the previous 24-month period or currently in use at the shop. The MSDS or coating data sheets should clearly indicate the VOC content of the product and the VOC content of multiple component coatings when mixed according to manufacturers instructions;(B) records of monthly coating and solvent purchases (invoices from suppliers are acceptable);(C) records of monthly paint and solvent use if purchase volumes are above the levels specified for any category in paragraph (15) of this section;(D) additional records are kept in sufficient detail, if necessary, to allow an annual emission inventory to be submitted according to the requirements in §101.10 of this title (relating to Emissions Inventory Requirements);(E) records of the United States Environmental Protection Agency and the commission's Office of Permitting, Remediation, and Registration registration or identification numbers for each waste generator.(17) Compliance with the requirements of this section does not eliminate the requirement to comply with all rules of the commission, including §101.4 of this title (relating to Nuisance). The commission may require a facility to cease operation until the matter is resolved.(18) After December 31, 1994, the conditions of this permit by rule are effective as to facilities in existence prior to the adoption of this section.</content><note type="source"><p>Source Note: The provisions of this §106.436 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scT"><num value="T">SUBCHAPTER T</num><heading>SURFACE PREPARATION</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scT/s106.451"><num value="106.451">§106.451</num><heading>Wet Blast Cleaning</heading><content>Blast cleaning equipment using a suspension of abrasives in water is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.451 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scT/s106.452"><num value="106.452">§106.452</num><heading>Dry Abrasive Cleaning</heading><content>Any abrasive cleaning operation that will satisfy paragraph (1) or (2) of this section is permitted by rule:(1) enclosed abrasive cleaning:(A) the particulate matter emissions are evacuated through a fabric filter with a maximum filtering velocity of 4.0 feet per minute (ft/min) with mechanical cleaning or 7.0 ft/min with air cleaning; and(B) there are no visible fugitive emissions from the facility.(2) outside blast cleaning:(A) abrasive usage rate shall not exceed 150 tons per year, 15 tons per month, and one ton per day; and(B) the blast cleaning is performed at least 500 feet from any recreational area or residence or other structure not occupied or used solely by the owner of the facility or the owner of the property upon which the facility is located; and(C) records shall be maintained of operating hours and abrasive material usage; and(D) before construction begins, the facility is registered with the commission's Office of Permitting, Remediation, and Registration in Austin using Form PI-7; and(E) before construction of the facility begins, written site approval shall be received from the executive director.</content><note type="source"><p>Source Note: The provisions of this §106.452 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scT/s106.453"><num value="106.453">§106.453</num><heading>Washing and Drying of Glass and Metal (Previously SE 42)</heading><content>Equipment used for washing or drying products fabricated from metal or glass is permitted by rule, provided no volatile organic materials are used in the process and no oil or solid fuel is burned.</content><note type="source"><p>Source Note: The provisions of this §106.453 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scT/s106.454"><num value="106.454">§106.454</num><heading>Degreasing Units</heading><content>Any degreasing unit that satisfies the following conditions of this section is permitted by rule.(1) The following general requirements are applicable to all degreasers unless specifically noted by the conditions of this section.(A) Units subject to paragraphs (3) - (5) of this section shall meet the following:(i) register with the commission's Office of Permitting, Remediation, and Registration in Austin using Form PI-7 and a Degreasing Unit Checklist;(ii) on a monthly basis, records shall be kept of total solvent makeup (gross usage minus waste disposal).(B) Waste solvent from all degreasing operations shall be stored in covered containers, and be removed by a licensed disposal service or until emptying into an authorized on-site waste management facility.(C) Porous or absorbent materials, such as cloth, leather, wood, or rope shall not be degreased.(D) Leaks shall be repaired immediately, or the degreaser shall be shut down until repairs are completed.(E) A permanent and conspicuous label summarizing proper operating procedures to minimize emissions shall be posted on or near the degreaser.(F) Each unit, regardless of the county in which it is located, shall meet the requirements of §115.412 and §115.415 of this title (relating to Control Requirements and Testing Requirements).(2) The following conditions apply only to remote reservoir cleaners.(A) The cleaner shall be designed to prevent exposure of the solvent reservoir to the atmosphere except for the drain openings. The drain openings shall not exceed 3.0% of the total cleaner open area and shall under no conditions exceed 16 square inches.(B) All solvent sprays shall be a solid fluid stream (not a fine, atomized, or shower type spray) and at a minimal operating pressure that is necessary to prevent excessive splashing, but not to exceed ten pounds per square inch, gauge (psig).(C) The true vapor pressure of the solvent shall not exceed 0.6 pounds per square inch, absolute (psia) as measured or calculated at an operating temperature of 100 degrees Fahrenheit.(D) The solvent shall not be heated.(3) The following conditions apply only to cold solvent cleaners, not including remote reservoirs.(A) The cleaner shall have a freeboard that has a minimum four-inch water cover or provides a freeboard ratio (the distance from top of the solvent level to the top edge of the degreasing tank divided by the degreaser width) equal to or greater than 0.7. For water covers, the solvent must be insoluble in and heavier than water.(B) The unit shall be equipped with a cover which is closed whenever parts are not being handled in the cleaner. Also, the cover must be designed for easy one-handed operation if any of the following conditions are present:(i) the true vapor pressure of the solvent is greater than 0.3 psia as measured or calculated at 100 degrees Fahrenheit;(ii) the solvent is agitated;(iii) the solvent is heated.(C) If a solvent spray is used, it shall be a solid fluid stream (not a fine, atomized, or shower-type spray) with a minimal operating pressure that is necessary to prevent splashing above the acceptable freeboard. The operating pressure shall not exceed ten psig.(D) An internal-cleaned parts drainage rack or facility, for enclosed draining under a cover, shall be provided. An external-cleaned parts drainage rack or facility, for enclosed draining under a cover, may be used if the vapor pressure of the solvent is less than 0.6 psia at 100 degrees Fahrenheit. In all cases, parts shall be drained for at least 15 seconds or until dripping ceases.(E) The Form PI-7 registration is not required if total solvent makeup (gross usage minus waste disposal) is 110 gallons per year (gallon/yr) or less.(F) Total solvent makeup shall not exceed the following:(i) chlorinated solvents--660 gallons/yr;(ii) all other solvents--1,500 gallons/yr.(4) The following conditions apply only to open top solvent vapor degreasers.(A) The surface area of the solvent shall not exceed 15 square feet.(B) The unit shall be equipped with a cover that can be opened and closed easily without disturbing the vapor zone. If the degreaser opening exceeds ten square feet, a powered cover shall be required.(C) The cover shall be closed at all times except when parts are moved into and out of the degreaser.(D) The unit shall be equipped with a properly sized refrigerated chiller, or the unit shall have a freeboard ratio (the distance from top of the vapor level to the top edge of the degreasing tank divided by the degreaser width) equal to or greater than 0.75.(E) Exhaust ventilation for the unit shall operate between 50 and 65 cubic feet per minute (cfm) per square foot of degreaser open area unless this conflicts with Occupational Safety and Health Administration (OSHA) requirements. Ventilation fans or other sources of air agitation shall not be operated near the degreaser opening.(F) The exhaust stacks shall discharge vertically with no restrictions or obstructions to flow. The stack height shall extend at least 1.3 times the building height as measured from ground level.(G) Total solvent makeup (gross usage minus waste disposal) shall not exceed the following:(i) chlorinated solvents--660 gallons/yr;(ii) all other solvents--1500 gallons/yr.(5) The following conditions apply only to conveyorized degreasers.(A) The inlet and outlet openings shall be closed at all times except when processing work through the degreaser.(B) The unit shall be equipped with a properly sized refrigerated chiller which has a volatile organic compound removal efficiency of at least 85%, or the unit shall have a freeboard ratio (the distance from top of the vapor level to the top edge of the degreasing tank divided by the degreaser width) equal to or greater than 0.75.(C) A drying tunnel or other means of control shall be used to limit liquid or vapor carry-out.(D) Entrances and exits to the degreaser shall be designed to silhouette work loads.(E) Exhaust ventilation for the unit shall operate between 50 and 65 cfm per square foot of degreaser opening unless this conflicts with OSHA requirements. Ventilation fans or other sources of air agitation shall not be operated near the degreaser openings.(F) The exhaust stacks shall discharge vertically with no restrictions or obstructions to flow. The stack height shall extend at least 1.5 times the building height as measured from ground level.(G) Total solvent makeup (gross usage minus waste disposal) shall not exceed the following:(i) chlorinated solvents--660 gallons/yr;(ii) all other solvents--1,500 gallons/yr.</content><note type="source"><p>Source Note: The provisions of this §106.454 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective July 8, 1998, 23 TexReg 6966; amended to be effective September 4, 2000, 25 TexReg 8653; amended to be effective November 1, 2001, 26 TexReg 8518.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scU"><num value="U">SUBCHAPTER U</num><heading>TANKS, STORAGE, AND LOADING</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scU/s106.471"><num value="106.471">§106.471</num><heading>Storage or Holding of Dry Natural Gas</heading><content>Equipment used exclusively to store or hold dry natural gas is permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.471 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scU/s106.472"><num value="106.472">§106.472</num><heading>Organic and Inorganic Liquid Loading and Unloading</heading><content>Liquid loading or unloading equipment for railcars, tank trucks, or drums; storage containers, reservoirs, tanks; and change of service of material loaded, unloaded, or stored is permitted by rule, provided that no visible emissions result and the chemicals loaded, unloaded, or stored are limited to:(1) the following list: asphalt, resins, soaps, lube oils, fuel oils, waxes, polymers, detergents, lube oil additives, kerosene, wax emulsions, vegetable oils, greases, animal fats, and diesel fuels;(2) water or wastewater;(3) aqueous salt solutions;(4) aqueous caustic solutions, except ammonia solutions;(5) inorganic acids except oleum, hydrofluoric, and hydrochloric acids;(6) aqueous ammonia solutions if vented through a water scrubber;(7) hydrochloric acid if vented through a water scrubber;(8) acetic acid if vented through a water scrubber;(9) organic liquids having an initial boiling point of 300 degrees Fahrenheit or greater. Facilities loading, unloading, or storing butyric acid, isobutyric acid, methacrylic acid, mercaptans, croton oil, 2- methyl styrene, or any other compound with an initial boiling point of 300 degrees Fahrenheit or greater listed in 40 Code of Federal Regulations 261, Appendix VIII shall be located at least 500 feet from any recreational area or residence or other structure not occupied or used solely by the owner of the facility or the owner of the property upon which the facility is located.</content><note type="source"><p>Source Note: The provisions of this §106.472 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scU/s106.473"><num value="106.473">§106.473</num><heading>Organic Liquid Loading and Unloading</heading><content>Organic liquids loading or unloading equipment for railcars, tank trucks, or drums; and storage containers, tanks, or change of service of the material loaded, unloaded, or stored is permitted by rule, provided that all of the following conditions of this section are met.(1) Uncontrolled emissions calculated using the version of AP-42 in effect at the time are less than 25 tons per year of organic compounds or of any other air contaminant.(2) The loading rate of the facilities does not exceed 20,000 gallons per day averaged over any consecutive 30-day period.(3) The capacity of any tank does not exceed 25,000 gallons, except that tanks having a capacity of less than 40,000 gallons may be used to store sweet crude oil, sweet natural gas condensate, gasoline, and petroleum fuels.(4) The facilities are used exclusively for the loading, unloading, or storage of:(A) organic liquids normally used as solvents, diluents, thinners, inks, colorants, paints, lacquers, enamels, varnishes, liquid resins, or other surface coatings;(B) petroleum, petroleum fuels, other motor vehicle fuels, and natural gas liquids, none of which have a true vapor pressure of 11.0 pounds per square inch, absolute, or greater at maximum temperature of use;(5) The facilities will meet any applicable requirements of Chapter 115 of this title (relating to Control of Air Pollution from Volatile Organic Compounds);(6) Facilities used for the loading, unloading, or storage of any compound listed in 40 Code of Federal Regulations 261, Appendix VIII are not permitted by rule under this section.</content><note type="source"><p>Source Note: The provisions of this §106.473 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scU/s106.474"><num value="106.474">§106.474</num><heading>Hydrochloric Acid Storage</heading><content>Hydrochloric acid storage tanks used exclusively for the storage of hydrochloric acid with an acid strength of 38% by weight or less are permitted by rule. If an acid more concentrated than 20% by weight is stored, the tank vent must be controlled to reduce emissions by at least 99%.</content><note type="source"><p>Source Note: The provisions of this §106.474 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scU/s106.475"><num value="106.475">§106.475</num><heading>Pressurized Tanks or Tanks Vented to a Firebox</heading><content>Any vessel storing carbon compounds composed only of carbon, hydrogen, or oxygen is permitted by rule, provided that the vessel vent is directed to an incinerator, boiler, or other firebox having a stationary flue or a waste gas flare system that will operate with no visible emissions except as provided by Chapter 101 of this title (relating to General Air Quality Rules) for periods of maintenance or operational upset. However, vessels not exceeding 100 barrels capacity and storing only liquid petroleum gas may have the safety relief valve vent directly to the atmosphere. Also, any tank having a capacity not to exceed 1,000 gallons and storing only commercial odorants used to odorize petroleum gases may have the safety relief valve vent directly to the atmosphere.</content><note type="source"><p>Source Note: The provisions of this §106.475 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scU/s106.476"><num value="106.476">§106.476</num><heading>Pressurized Tanks or Tanks Vented to Control</heading><content>Any tank or other container storing carbon compounds is permitted by rule, provided that the tank or container pressure is sufficient at all times to prevent vapor or gas loss to the atmosphere or the tank or container is equipped with a relief valve which directs all vapors or gases to an incinerator, boiler, or other firebox having a stationary flue or a waste gas smokeless flare system. The vapors or gases and any necessary fuel gas shall be mixed thoroughly upstream of the heater burner(s) or the flare tip such that the mixed gases have a minimum net or lower heating value of 200 British thermal units per cubic foot. The flare also shall meet the other requirements of §106.492 of this title (relating to Flares).</content><note type="source"><p>Source Note: The provisions of this §106.476 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scU/s106.477"><num value="106.477">§106.477</num><heading>Anhydrous Ammonia Storage</heading><content>Anhydrous ammonia storage tanks and distribution facilities that meet the following conditions are permitted by rule.(1) All valves, connectors, and hoses, associated with permanent storage tanks and any nurse tanks stored on-site, shall be properly maintained in leak-proof condition at all times.(2) The capacity of each permanent storage tank is 30,000 gallons or less.(3) When transferring ammonia, all vapors shall be vented back to the host tank and never to the atmosphere.(4) When relieving pressure from hoses associated with permanent storage tanks and any nurse tanks, all vapors shall be bled into an adequate volume of water and never to the atmosphere.(5) Each permanent storage tank and any nurse tanks stored on-site are equipped to prevent unauthorized operation.(6) Before construction begins, written site approval must be received from the regional director and the owner or operator shall file with the commission's Office of Permitting, Remediation, and Registration in Austin a completed Form PI-7 and supporting documentation demonstrating that all of the requirements of this section will be met.(7) Each permanent storage tank is located at least 1/4 mile from any recreational area or residence or other structure not occupied or used solely by the owner of the property upon which the facility is located.</content><note type="source"><p>Source Note: The provisions of this §106.477 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective August 4, 1998, 23 TexReg 7830; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scU/s106.478"><num value="106.478">§106.478</num><heading>Storage Tank and Change of Service</heading><content>Any fixed or floating roof storage tank, or change of service in any tank, used to store chemicals or mixtures of chemicals shown in Table 478 in paragraph (8) of this section is permitted by rule, provided that all of the following conditions of this section are met: (1) The tank shall be located at least 500 feet away from any recreational area or residence or other structure not occupied or used solely by the owner of the facility or the owner of the property upon which the facility is located. (2) The true vapor pressure of the compound to be stored shall be less than 11.0 psia at the maximum storage temperature. (3) For those compounds that have a true vapor pressure greater than 0.5 psia and less than 11.0 psia at the maximum storage temperature, any storage vessel larger than 40,000 gallons capacity shall be equipped with an internal floating cover or equivalent control. (A) An open top tank containing an external floating roof using double seal technology shall be an approved control alternative equivalent to an internal floating cover tank, provided the primary seal consists of either a mechanical shoe seal or a liquid-mounted seal. Double seals having a vapor- mounted primary seal are an approved alternative for existing open top floating roof tanks undergoing a change of service. (B) The floating cover or floating roof design shall incorporate sufficient flotation to conform to the requirements of American Petroleum Institute Code 650, Appendix C or an equivalent degree of flotation. (4) Compounds with a true vapor pressure of 0.5 psia or less at the maximum storage temperature may be stored in a fixed roof or cone roof tank which includes a submerged fill pipe or utilizes bottom loading. (5) For fixed or cone roof tanks having no internal floating cover, all uninsulated tank exterior surfaces exposed to the sun shall be painted chalk white except where a dark color is necessary to help the tank absorb or retain heat in order to maintain the material in the tank in a liquid state. (6) Emissions shall be calculated by methods specified in Section 4.3 of the current edition of the United States Environmental Protection Agency Publication AP-42. This document may be obtained from the Superintendent of Documents, Washington D.C. 20402. It is Stock Number 0550000251-7, Volume I. (7) Before construction begins, storage tanks of 25,000 gallons or greater capacity and located in a designated nonattainment area for ozone shall be registered with the commission's Office of Permitting, Remediation, and Registration in Austin using Form PI-7. The registration shall include a list of all tanks, calculated emissions for each carbon compound in tons per year for each tank, and a Table 7 of Form PI-2 for each different tank design. (8) Mixtures of the chemicals listed in Table 478 which contain more than a total of 1.0% by volume of all other chemicals not listed in Table 478 are not covered by this section. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §106.478 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scV"><num value="V">SUBCHAPTER V</num><heading>THERMAL CONTROL DEVICES</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scV/s106.491"><num value="106.491">§106.491</num><heading>Dual-Chamber Incinerators</heading><content>(a) Applicability. This section authorizes dual-chamber incinerators that burn only waste generated on site, or illegal drugs confiscated by federal, state, or local law enforcement agencies. Incinerators used in the processing or recovery of materials or to dispose of pathological waste as defined in §106.494 of this title (relating to Pathological Waste Incinerators), hospital waste, infectious waste, hazardous waste, or radioactive waste are not authorized by this section. (b) Design requirements. The incinerator must meet the following design requirements. (1) The incinerator must be equipped with an afterburner automatically controlled to operate with a minimum temperature of 1,400 degrees Fahrenheit, equipped with a continuous exhaust temperature monitor, and designed and operated with a minimum gas retention time of 0.5 seconds. (2) The manufacturer's rated capacity (burn rate) must be 500 pounds per hour or less. Each claim under this section must address the model of incinerator and specify the types and amounts of waste to be destroyed for determination of a specific unit's appropriate capacity. (3) Stacks must comply with the following: (A) height at least 15 feet from the ground; (B) height at least six feet above the peak of the highest structure within 150 feet; (C) located at least 200 feet from nearest property line; and (D) have unobstructed vertical discharge when the incinerator is operated. Properly installed and maintained spark arresters are not considered obstructions. (c) Operational limits. The incinerator must meet the following operational conditions. (1) This facility must be used solely for the disposal of waste materials generated on site and only one of the following: (A) paper, wood, cardboard cartons, rags, garbage (animal and vegetable wastes as defined in Chapter 101 of this title (relating to General Air Quality Rules)), and combustible floor sweepings; containing overall not more than 10% treated papers, plastic, or rubber scraps. Plastics containing polyvinyl chloride or polyvinyl fluoride are prohibited. Neither garbage content nor moisture content may exceed 50% and noncombustible solids may not exceed 10% of total weight; or (B) drugs confiscated by law enforcement, limited to marijuana, cocaine, opiates, and methamphetamines. (2) The incinerator must be operated with the following limits: (A) cocaine, opiates, and methamphetamines are limited to a burn rate of no more than four pounds per hour (lb/hr) and ten pounds in any eight-hour period. Emissions must not exceed 0.04 lb/hr for each of these compounds; and (B) marijuana is limited to a burn rate of no more than 500 lb/hr. Emissions must not exceed 1.0 lb/hr total inhalable particulate matter (PM10 ). (3) Fuel for the incinerator must be limited to sweet natural gas, liquid petroleum gas, Number 2 fuel oil with less than 0.5% sulfur by weight, or electric power. Products of fuel combustion (sulfur dioxide, nitrogen oxides, and carbon monoxide) and volatile organic compounds are authorized, if the facility is operated in compliance with this section. (4) The manufacturer's recommended operating instructions must be posted at the incinerator, and the unit must be operated in accordance with these instructions. The incinerator must be operated in accordance with the manufacturer's specifications and maintained in good working order. (5) Visible emissions must not exceed an opacity of 5.0% averaged over any six-minute period as determined by the United States Environmental Protection Agency Test Method 9. (d) Compliance and administrative requirements. (1) Registration. Before construction begins, the facility must be registered with the commission's Office of Permitting, Remediation, and Registration using Form PI-7, Registration for Permits by Rule. (2) Waste regulations. Compliance with this section serves as a commission authorization under §330.51 of this title (relating to Permit Application for Municipal Solid Waste Facilities). (3) State and federal air compliance demonstrations. (A) Emission limits. Within 180 days of operation, all facilities processing confiscated drugs must provide sampling to demonstrate compliance with the emission limits of this section. Similar facility sampling may be used if the owner or operator provides documentation, including model number, burn rate, materials burned, and all relevant operating conditions, that demonstrates the previously-sampled incinerator is equivalent to the facility to be authorized under this section. (B) Federal requirements. Registrations must address the applicability of 40 Code of Federal Regulations (CFR) Part 60, Standards of Performance for New Stationary Sources (NSPS), Subpart CCCC, Standards of Performance for Commercial and Industrial Solid Waste Incineration Units, for Which Construction Is Commenced After November 30, 1999 or for Which Modification or Reconstruction Is Commenced on or After June 1, 2001 (as published in the December 1, 2000 issue of the Federal Register); or 40 CFR Part 60, Subpart DDDD, Emission Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units, that Commenced Construction On or Before November 30, 1999 (as published in the December 1, 2000 issue of the Federal Register). If determined to be applicable, commercial and industrial solid waste incinerators must demonstrate compliance with these federal regulations, including initial stack sampling, opacity readings, reporting, and recordkeeping. (C) State air regulations. Upon the request of the executive director, a designated representative of the commission, or a local air pollution control agency having jurisdiction over the site, compliance with §111.121 and §111.125 of this title (relating to Single-, Dual-, and Multiple-Chamber Incinerators; and Testing Requirements) must be demonstrated. (4) Monitoring. Incinerator operators/owners shall install, calibrate, maintain, and operate a monitoring device that continuously measures and records the temperature of the exhaust gas of the incinerator, in addition to any monitoring required by an appropriate NSPS subpart. (5) Recordkeeping. Records must be kept of the type and amount of waste charged/burned; type and amount of fuel usage, including sulfur content for fuel oil; monitoring and testing results; hours of operation; and routine maintenance of abatement systems sufficient to demonstrate each of the requirements listed previously are met. Such records must be retained for a minimum rolling two-year period and comply with §106.8 of this title (relating to Recordkeeping).</content><note type="source"><p>Source Note: The provisions of this §106.491 adopted to be effective June 30, 2004, 29 TexReg 6094.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scV/s106.492"><num value="106.492">§106.492</num><heading>Flares</heading><content>Smokeless gas flares which meet the following conditions of this section are permitted by rule: (1) design requirements. (A) The flare shall be equipped with a flare tip designed to provide good mixing with air, flame stability, and a tip velocity less than 60 feet per second (ft/sec) for gases having a lower heating value less than 1,000 British thermal units per cubic foot (Btu/ft3 ) or a tip velocity less than 400 ft/sec for gases having a lower heating value greater than 1,000 Btu/ft3 .(B) The flare shall be equipped with a continuously burning pilot or other automatic ignition system that assures gas ignition and provides immediate notification of appropriate personnel when the ignition system ceases to function. A gas flare which emits no more than 4.0 pounds per hour (lb/hr) of reduced sulfur compounds, excluding sulfur oxides, is exempted from the immediate notification requirement, provided the emission point height meets the requirements of §106.352(4) of this title (relating to Oil and Gas Production Facilities). (C) A flare which burns gases containing more than 24 parts per million by volume (ppmv) of sulfur, chlorine, or compounds containing either element shall be located at least 1/4 mile from any recreational area or residence or other structure not occupied or used solely by the owner or operator of the flare or the owner of the property upon which the flare is located. (D) The heat release of a flare which emits sulfur dioxide (SO2 ) or hydrogen chloride (HCl) shall be greater than or equal to the following values: Attached Graphic(2) operational conditions. (A) The flare shall burn a combustible mixture of gases containing only carbon, hydrogen, nitrogen, oxygen, sulfur, chlorine, or compounds derived from these elements. When the gas stream to be burned has a net or lower heating value of more than 200 Btu/ft3 prior to the addition of air, it may be considered combustible. (B) A flare which burns gases containing more than 24 ppmv of sulfur, chlorine, or compounds containing either element shall be registered with the commission's Office of Permitting, Remediation, and Registration in Austin using Form PI-7 prior to construction of a new flare or prior to the use of an existing flare for the new service. (C) Under no circumstances shall liquids be burned in the flare.</content><note type="source"><p>Source Note: The provisions of this §106.492 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scV/s106.494"><num value="106.494">§106.494</num><heading>Non-commercial Incinerators and Crematories</heading><content>(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.(1) Pathological waste --This term is assigned the meaning as defined in 25 TAC §1.132 (relating to Definitions) (2) Human remains (as defined in Texas Health and Safety Code, §711.001)--The body of decedent.(3) Embryonic and fetal tissue remains--This term is assigned the meaning as defined in Texas Health and Safety Code, §697.002. The umbilical cord, placenta, gestational sac, blood, or body fluids from the same pregnancy may be disposed of in the same manner as embryonic and fetal tissue remains in accordance with Texas Health and Safety Code, §697.004.(4) Carcasses--Dead animals, in whole or part.(5) Crematory --A building or structure containing one or more furnaces used, or intended to be used, for the reduction (by burning) of human remains, and/or embryonic and fetal tissue remains to cremated remains.(6) Animal feeding operations--A lot or facility (other than an aquatic animal feeding facility or veterinary facility) where animals are stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period, and the animal confinement areas do not sustain crops, vegetation, forage growth, or post-harvest residues in the normal growing season.(7) Non-commercial incinerator--An incinerator which does not accept pathological waste, embryonic and fetal tissue remains, or carcasses generated off-site for monetary compensation.(8) Stack height--Elevation of the stack exit above the ground.(b) Conditions of permit by rule. Crematories used for the cremation of human remains, embryonic and fetal tissue remains, and appropriate containers which meet the following conditions of this section are permitted by rule. Non-commercial incinerators used to dispose of pathological waste, embryonic and fetal tissue remains, and carcasses which meet the following conditions of this section are permitted by rule. Incinerators used in the recovery of materials are not covered by this section.(1) Design requirements.(A) The manufacturer's rated capacity (burn rate) shall be 200 pounds per hour (lbs/hr) or less.(B) The incinerator shall be a dual-chamber design.(C) Burners shall be located in each chamber, sized to manufacturer's specifications, and operated as necessary to maintain the minimum temperature requirements of subparagraphs (D) or (E) of this paragraph at all times when the unit is burning waste.(D) Excluding crematories, the secondary chamber must be designed to maintain a temperature of 1,600 degrees Fahrenheit or more with a gas residence time of 1/2 second or more.(E) In lieu of subparagraph (D) of this paragraph, incinerators at animal feeding operations that:(i) are used to dispose of carcasses generated on-site; and(ii) are located a minimum of 700 feet from the nearest property line, shall be designed to maintain a secondary chamber temperature of 1,400 degrees Fahrenheit or more with a gas residence time of 1/4 second or more. Alternatively, incinerators may be located in accordance with Table 494 of this clause, provided the total manufacturer's rated capacity (burn rate) of all units located less than 700 feet from a property line shall not exceed 200 lb/hr. Setback distances shall be measured from the stack exit.Attached Graphic(F) There shall be no obstructions to stack flow, such as by rain caps, unless such devices are designed to automatically open when the incinerator is operated. Properly installed and maintained spark arresters are not considered obstruction.(2) Operational conditions.(A) Before construction begins, the facility shall be registered with the commission using Form PI-7.(B) The manufacturer's recommended operating instructions shall be posted at the unit and the unit shall be operated in accordance with these instructions.(C) The opacity of emissions from the incinerator shall not exceed 5.0% averaged over a six-minute period.(D) Heat shall be provided by the combustion of sweet natural gas, liquid petroleum gas, or Number 2 fuel oil with less than 0.3% sulfur by weight, or by electric power.(E) Incinerators installed and operated in accordance with the conditions of this section shall not be used to dispose of any medical waste, other than pathological waste, embryonic and fetal tissue remains, and/or carcasses, as defined under subsection (a) of this section.(F) Incinerators installed and operated in accordance with the conditions of this section shall also meet the requirements of §§111.121, 111.125, 111.127, and 111.129 of this title (relating to Single-, Dual-, and Multiple-Chamber Incinerators; Testing Requirements; Monitoring and Recordkeeping Requirements; and Operating Requirements).(G) Crematories shall be used for the sole purpose of cremation of human remains, embryonic and fetal tissue remains, as well as the umbilical cord, placenta, gestational sac, blood, or body fluids in accordance with Texas Health and Safety Code, §697.004, and appropriate containers.</content><note type="source"><p>Source Note: The provisions of this §106.494 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 1, 1999, 24 TexReg 6758; amended to be effective September 4, 2000, 25 TexReg 8653; amended to be effective July 19, 2018, 43 TexReg 4757.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scV/s106.495"><num value="106.495">§106.495</num><heading>Heat Cleaning Devices</heading><content>Heat cleaning devices (such as ovens, furnaces, and/or direct flame incinerators) used to thermally remove residual combustible or semi-combustible materials from noncombustible electrical or mechanical parts are permitted by rule, provided the following conditions of this section are satisfied.(1) Before construction begins, the facility shall be registered with the commission's Office of Permitting, Remediation, and Registration in Austin using Form PI-7.(2) The combustible material shall not exceed 10% by weight of the total load to the oven, furnace, and/or incinerator.(3) The combustible material shall contain no halogenated organic compounds.(4) The oven, furnace, and/or incinerator shall be equipped with an afterburner automatically controlled to operate with a minimum temperature of 1,400 degrees Fahrenheit and a gas retention time of 0.5 second or greater.(5) Opacity of emissions from the oven, furnace, and/or incinerator shall not exceed 5.0% averaged over a five-minute period.(6) The manufacturer's recommended operating instructions shall be posted at each oven, furnace, and/or incinerator, and each unit shall be operated in accordance with these instructions.(7) Heat shall be provided by the combustion of sweet natural gas, liquid petroleum gas, or Number 2 fuel oil with no more than 0.5% sulfur by weight, or by electric power.(8) The emission of any air contaminant shall not exceed 0.5 pounds per hour and 2.0 tons per year.</content><note type="source"><p>Source Note: The provisions of this §106.495 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scV/s106.496"><num value="106.496">§106.496</num><heading>Air Curtain Incinerators</heading><content>(a) Applicability. The commission encourages the recycling of the materials specified in this section. Composting, mulching, or other processing to produce a useable material can be authorized by §332.8 of this title (relating to Air Quality Requirements). This section authorizes any air curtain incinerator used for the burning of trees, clean lumber, and brush from land-clearing as referenced in 40 Code of Federal Regulations §60.2245, right-of-way maintenance, emergency clean-up operations, noncommercial industrial sites, and municipal solid waste sites, if operated in accordance with this section. (b) Scope and terms. The following terms apply only to this section. (1) Air curtain incinerator (ACI)--An incinerator that operates by forcefully projecting a curtain of air across an open chamber or pit in which combustion occurs. Incinerators of this type can be constructed above or below ground and with or without refractory walls and floor. (2) Clean lumber--Wood or wood products that have been cut or shaped and includes wet, air-dried, and kiln-dried wood products. Clean lumber does not include wood products that have been painted, pigment-stained, or pressure-treated by compounds such as chromate, copper arsenate, pentachlorophenol, or creosote. (3) Emergency cleanup--The removal and disposal of wastes resulting from events such as high winds, floods, and other events of nature that are necessary to protect public health and safety. (4) Land-clearing--The removal of trees, brush, and other vegetative matter from agriculture, forest management, or land development. (5) Municipal solid waste sites--Landfills that may burn on- or off-site generated waste as specifically authorized by the executive director under §330.4 of this title (relating to Permit Required). (6) Noncommercial industrial sites--Locations at which on-site generated waste resulting from the processing or manufacturing of products may be burned. These industrial sites must be noncommercial, as limited by §335.2(d)(1) of this title (relating to Permit Required), and burn only on-site generated waste that results from the processing or manufacturing of products, and do not include sites that accept off-site generated waste for disposal or destruction. (7) Site--One or more contiguous or adjacent properties that are under common control of the same person, or persons under common control. (c) Operational limits. (1) Distance limitations. The ACI must be operated at least 300 feet from the closest property line and any other facility with an air permit authorization under §116.110 of this title (relating to Applicability), or any ACI operating under this section. (2) Facility locations. ACIs may not be operated at a given site more than the following. (A) All facilities may operate up to a total of 600 hours in any rolling 12-month period. (B) Portable facilities temporarily located at a site may operate up to 180 consecutive calendar days or 600 hours, whichever occurs first. The ACI must be removed from the site after ceasing operation. (C) Permanent facilities may process materials for municipal solid waste or noncommercial industrial sites only. (3) Daily operation. (A) Daily burning must not commence earlier than one hour after sunrise. (B) Burning must be completed on the same day, not later than one hour before sunset. At the end of the burn, embers must not be flaming or smoking, and no additional fuel may be added to the ACI. (C) Material must not be added to the ACI in such a manner as to be stacked above the air curtain. (D) An operator shall remain with the ACI at all times when it is operating. (E) The ACI blower must remain on at the end of daily burning until enough material is consumed so that any remaining material in the trench does not flame or cause smoke that exceeds the requirement of this section when the blower is turned off. (F) Material not being worked, and material being stockpiled to be burned at a later date, must be kept at least 75 feet from the trench or firebox. (4) Visible emissions. (A) Visible emissions from an ACI, stockpiles, work areas, and any in-plant roads associated with the facility must not leave the property for a period exceeding 30 seconds in any six-minute period as determined by United States Environmental Protection Agency Test Method 22. (B) Best management practices must be used to ensure that the ACI blower is operated in a manner to minimize smoke and ash becoming airborne. (5) Emissions from products of combustion. Products of combustion (sulfur dioxide, nitrogen oxides, and carbon monoxide) and volatile organic compounds are authorized if the facility is operated in compliance with this section. (6) Compliance. Upon notification by a representative of the commission or any local air pollution control program having jurisdiction that the ACI is not complying with the conditions of this section, additional material must not be added to the ACI until the facility returns to compliance. (d) Trench burning. An ACI operation using a trench and air manifold system must meet the following conditions. (1) At all times, trench dimensions must not exceed 12 feet in width, 35 feet in length, and be no less than ten feet in depth, such that the combustion of the materials within the trench is maintained. (2) The length of the trench must not exceed the length of the air blower manifold. (3) The walls of the trench must be maintained such that they remain sufficiently vertical to maintain the air curtain. (4) Upon removal of the ACI from the burn site, ash may be left in the trench, subject to the conditions of this section, and the trench must be completely filled with incombustible material and covered with soil. (e) Firebox burning. An ACI operation using a manufactured aboveground container and blower system must meet the following requirements and operational limits. (1) The interior dimensions of the firebox must not exceed eight feet in width, 35 feet in length, and be no less than six feet in depth. (2) The walls of the ACI must be maintained such that they remain sufficiently vertical to maintain the air curtain and the combustion of the materials within the ACI. (3) The air blower manifold length must be equal to the length of the burning area. (4) Firebox facilities, which are equipped with refractory walls and above-fire air supply, may operate up to a total of 750 hours in any rolling 12-month period. (f) Ash processing. (1) Handling. All ash generated as a result of the operation of an ACI must be handled in accordance with the following requirements. (A) Ash must be removed from the ACI during burning as necessary to maintain efficient combustion. (B) Ash must be removed from the ACI in such a manner as to minimize the ash becoming airborne. (C) All material removed from the ACI must be completely extinguished before being disposed of or placed in contact with combustible material, and must be stored in a manner that does not constitute a fire hazard or allow the material to smolder or burn outside of the ACI. (2) Disposal. The ash generated from an ACI operated under this section must be disposed of by one of the following methods: (A) buried on-site in an ACI trench, if deed recorded and a copy of the document is provided to the executive director as required by §330.7 of this title (relating to Deed Recordation); (B) sent to a Type I landfill, if the ash is containerized and no hot coals are present; or (C) beneficially used, if the use is determined to be acceptable by the executive director in accordance with §330.8 of this title (relating to Notification Requirements). (g) Other requirements. (1) Local restrictions. This section does not exempt ACIs from any local government regulations or other local government requirements, permits, registrations, or other authorizations required by local authorities. (2) State air regulations. This section does not exempt ACIs from compliance with any additional state air regulations. (3) Federal air requirements. Registrations for permanent ACIs must address the applicability of 40 Code of Federal Regulations (CFR) Part 60, Subpart CCCC, Standards of Performance for Commercial and Industrial Solid Waste Incineration Units for Which Construction Is Commenced After November 30, 1999 or for Which Modification or Reconstruction Is Commenced on or After June 1, 2001 (as published in the December 1, 2000 issue of the Federal Register). If determined to be applicable, commercial and industrial solid waste incinerators must demonstrate compliance with this federal regulation, including initial stack sampling, opacity readings, reporting, and recordkeeping. (4) State waste regulations. (A) Landfill sites: (i) ACIs located at a landfill require separate authorization by the executive director in accordance with §330.4 of this title (relating to Permit Required); and (ii) below-ground ACIs must be located in undisturbed soil not previously excavated, built up, compacted, or used in any type of active landfill operation. (B) Ash disposal. For materials authorized to be burned under this section and the resulting ash from ACIs, categorized as municipal solid waste as defined in §330.2 of this title (relating to Definitions), compliance with this section serves as a commission authorization to store, process, remove, and/or dispose of the ash resulting from the operation of ACIs as required by §330.4(a) of this title. (5) State water regulations. Nothing in this section removes the responsibility of the owner/operator from obtaining any necessary authorization under Chapter 308 of this title (relating to Criteria and Standards for the National Pollutant Discharge Elimination System). (h) Administrative. (1) Multiple locations at a single site. Multiple ACIs at a given site may be combined into a single registration if individual ACI locations at the site are in compliance with all design requirements and operating restrictions. Operations for all ACIs under common control at a given site must cumulatively meet the annual hourly limitations as listed. (2) Registration. (A) ACIs must be initially registered with the executive director using the Core Data Form and Form PI-7. (B) Re-registration is required when any notice of enforcement is issued by the commission, or delegated representative, to the owner or operator of an ACI facility or every five years, whichever occurs first. (C) Any ACI used for emergency clean-up operations does not require registration, but the owner or operator shall meet the notification requirements of this section except for the 14-day prior notice requirement. (D) Registration reviews will include site approval and a compliance history evaluation in accordance with Chapter 60 of this title (relating to Compliance History). (3) Notification. Notifications are not subject to the requirements of §106.50 of this title (relating to Registration Fees for Permits by Rule) or Chapter 60 of this title. (A) The owner or operator of an ACI that has previously been registered with the executive director in accordance with this section and is being relocated to a new site, other than a landfill, shall notify the appropriate regional office and any local air pollution control agency having jurisdiction over the site. (B) Notifications must be in writing using the Regional Standard Permit/Permit by Rule Relocation Form, include a return receipt, and be received by the regional director and any local air pollution control agency having jurisdiction over the site at least 14 calendar days prior to locating at the site. (4) Records. To demonstrate compliance with this section and §106.8 of this title (relating to Recordkeeping), owners or operators of ACIs shall, at a minimum, meet the following requirements. (A) The ACI must be equipped with a run time meter. A written record or log of the hours of operation of the ACI must be maintained at the site and made available at the request of personnel from the commission or any air pollution control program having jurisdiction. This run time record or log must be organized such that compliance with the requirements of this section can be readily determined. (B) Records must be kept to demonstrate compliance with all operational or location requirements of this section. These records must include a copy of the return receipt demonstrating notification to the appropriate regional office and local air pollution control programs having jurisdiction, and plot plans showing distance limits are met. For portable facilities, once relocated to a new site, records must be maintained at a central location for a two-year rolling period. (C) A copy of this section and any operating instructions must be kept at the burn site, followed by owners or operators, and made available at the request of personnel from the commission or any local air pollution control program having jurisdiction. (D) The ACI must be clearly and permanently marked with the regulated entity (preferred) or account identification number on the fan manifold or aboveground unit.</content><note type="source"><p>Source Note: The provisions of this §106.496 adopted to be effective June 30, 2004, 29 TexReg 6094.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scW"><num value="W">SUBCHAPTER W</num><heading>TURBINES AND ENGINES</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scW/s106.511"><num value="106.511">§106.511</num><heading>Portable and Emergency Engines and Turbines</heading><content>Internal combustion engine and gas turbine driven compressors, electric generator sets, and water pumps, used only for portable, emergency, and/or standby services are permitted by rule, provided that the maximum annual operating hours shall not exceed 10% of the normal annual operating schedule of the primary equipment; and all electric motors. For purposes of this section, "standby" means to be used as a "substitute for" and not "in addition to" other equipment.</content><note type="source"><p>Source Note: The provisions of this §106.511 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scW/s106.512"><num value="106.512">§106.512</num><heading>Stationary Engines and Turbines</heading><content>Gas or liquid fuel-fired stationary internal combustion reciprocating engines or gas turbines that operate in compliance with the following conditions of this section are permitted by rule. (1) The facility shall be registered by submitting the commission's Form PI-7, Table 29 for each proposed reciprocating engine, and Table 31 for each proposed gas turbine to the commission's Office of Permitting, Remediation, and Registration in Austin within ten days after construction begins. Engines and turbines rated less than 240 horsepower (hp) need not be registered, but must meet paragraphs (5) and (6) of this section, relating to fuel and protection of air quality. Engine hp rating shall be based on the engine manufacturer's maximum continuous load rating at the lesser of the engine or driven equipment's maximum published continuous speed. A rich-burn engine is a gas-fired spark-ignited engine that is operated with an exhaust oxygen content less than 4.0% by volume. A lean-burn engine is a gas-fired spark-ignited engine that is operated with an exhaust oxygen content of 4.0% by volume, or greater. (2) For any engine rated 500 hp or greater, subparagraphs (A) - (C) of this paragraph shall apply. (A) The emissions of nitrogen oxides (NO x ) shall not exceed the following limits: (i) 2.0 grams per horsepower-hour (g/hp-hr) under all operating conditions for any gas-fired rich-burn engine; (ii) 2.0 g/hp-hr at manufacturer's rated full load and speed, and other operating conditions, except 5.0 g/hp-hr under reduced speed, 80-100% of full torque conditions, for any spark-ignited, gas-fired lean-burn engine, or any compression-ignited dual fuel-fired engine manufactured new after June 18, 1992; (iii) 5.0 g/hp-hr under all operating conditions for any spark-ignited, gas-fired, lean-burn two-cycle or four-cycle engine or any compression-ignited dual fuel-fired engine rated 825 hp or greater and manufactured after September 23, 1982, but prior to June 18, 1992; (iv) 5.0 g/hp-hr at manufacturer's rated full load and speed and other operating conditions, except 8.0 g/hp-hr under reduced speed, 80-100% of full torque conditions for any spark-ignited, gas-fired, lean-burn four-cycle engine, or any compression-ignited dual fuel-fired engine that: (I) was manufactured prior to June 18, 1992, and is rated less than 825 hp; or (II) was manufactured prior to September 23, 1982; (v) 8.0 g/hp-hr under all operating conditions for any spark-ignited, gas-fired, two-cycle lean-burn engine that: (I) was manufactured prior to June 18, 1992, and is rated less than 825 hp; or (II) was manufactured prior to September 23, 1982; (vi) 11.0 g/hp-hr for any compression-ignited liquid-fired engine. (B) For such engines which are spark-ignited gas-fired or compression-ignited dual fuel-fired, the engine shall be equipped as necessary with an automatic air-fuel ratio (AFR) controller which maintains AFR in the range required to meet the emission limits of subparagraph (A) of this paragraph. An AFR controller shall be deemed necessary for any engine controlled with a non-selective catalytic reduction (NSCR) converter and for applications where the fuel heating value varies more than ± 50 British thermal unit/standard cubic feet from the design lower heating value of the fuel. If an NSCR converter is used to reduce NOx , the automatic controller shall operate on exhaust oxygen control. (C) Records shall be created and maintained by the owner or operator for a period of at least two years, made available, upon request, to the commission and any local air pollution control agency having jurisdiction, and shall include the following: (i) documentation for each AFR controller, manufacturer's, or supplier's recommended maintenance that has been performed, including replacement of the oxygen sensor as necessary for oxygen sensor-based controllers. The oxygen sensor shall be replaced at least quarterly in the absence of a specific written recommendation; (ii) documentation on proper operation of the engine by recorded measurements of NOx and carbon monoxide (CO) emissions as soon as practicable, but no later than seven days following each occurrence of engine maintenance which may reasonably be expected to increase emissions, changes of fuel quality in engines without oxygen sensor-based AFR controllers which may reasonably be expected to increase emissions, oxygen sensor replacement, or catalyst cleaning or catalyst replacement. Stain tube indicators specifically designed to measure NOx and CO concentrations shall be acceptable for this documentation, provided a hot air probe or equivalent device is used to prevent error due to high stack temperature, and three sets of concentration measurements are made and averaged. Portable NOx and CO analyzers shall also be acceptable for this documentation; (iii) documentation within 60 days following initial engine start-up and biennially thereafter, for emissions of NO x and CO, measured in accordance with United States Environmental Protection Agency (EPA) Reference Method 7E or 20 for NO x and Method 10 for CO. Exhaust flow rate may be determined from measured fuel flow rate and EPA Method 19. California Air Resources Board Method A-100 (adopted June 29, 1983) is an acceptable alternate to EPA test methods. Modifications to these methods will be subject to the prior approval of the Source and Mobile Monitoring Division of the commission. Emissions shall be measured and recorded in the as-found operating condition; however, compliance determinations shall not be established during start-up, shutdown, or under breakdown conditions. An owner or operator may submit to the appropriate regional office a report of a valid emissions test performed in Texas, on the same engine, conducted no more than 12 months prior to the most recent start of construction date, in lieu of performing an emissions test within 60 days following engine start-up at the new site. Any such engine shall be sampled no less frequently than biennially (or every 15,000 hours of elapsed run time, as recorded by an elapsed run time meter) and upon request of the executive director. Following the initial compliance test, in lieu of performing stack sampling on a biennial calendar basis, an owner or operator may elect to install and operate an elapsed operating time meter and shall test the engine within 15,000 hours of engine operation after the previous emission test. The owner or operator who elects to test on an operating hour schedule shall submit in writing, to the appropriate regional office, biennially after initial sampling, documentation of the actual recorded hours of engine operation since the previous emission test, and an estimate of the date of the next required sampling. (3) For any gas turbine rated 500 hp or more, subparagraphs (A) and (B) of this paragraph shall apply. (A) The emissions of NOx shall not exceed 3.0 g/hp-hr for gas-firing. (B) The turbine shall meet all applicable NO x and sulfur dioxide (SO2) (or fuel sulfur) emissions limitations, monitoring requirements, and reporting requirements of EPA New Source Performance Standards Subpart GG--Standards of Performance for Stationary Gas Turbines. Turbine hp rating shall be based on turbine base load, fuel lower heating value, and International Standards Organization Standard Day Conditions of 59 degrees Fahrenheit, 1.0 atmosphere and 60% relative humidity. (4) Any engine or turbine rated less than 500 hp or used for temporary replacement purposes shall be exempt from the emission limitations of paragraphs (2) and (3) of this section. Temporary replacement engines or turbines shall be limited to a maximum of 90 days of operation after which they shall be removed or rendered physically inoperable. (5) Gas fuel shall be limited to: sweet natural gas or liquid petroleum gas, fuel gas containing no more than ten grains total sulfur per 100 dry standard cubic feet, or field gas. If field gas contains more than 1.5 grains hydrogen sulfide or 30 grains total sulfur compounds per 100 standard cubic feet (sour gas), the engine owner or operator shall maintain records, including at least quarterly measurements of fuel hydrogen sulfide and total sulfur content, which demonstrate that the annual SO 2 emissions from the facility do not exceed 25 tons per year (tpy). Liquid fuel shall be petroleum distillate oil that is not a blend containing waste oils or solvents and contains less than 0.3% by weight sulfur. (6) There will be no violations of any National Ambient Air Quality Standard (NAAQS) in the area of the proposed facility. Compliance with this condition shall be demonstrated by one of the following three methods: (A) ambient sampling or dispersion modeling accomplished pursuant to guidance obtained from the executive director. Unless otherwise documented by actual test data, the following nitrogen dioxide (NO 2)/NOx ratios shall be used for modeling NO2 NAAQS; Attached Graphic(B) all existing and proposed engine and turbine exhausts are released to the atmosphere at a height at least twice the height of any surrounding obstructions to wind flow. Buildings, open-sided roofs, tanks, separators, heaters, covers, and any other type of structure are considered as obstructions to wind flow if the distance from the nearest point on the obstruction to the nearest exhaust stack is less than five times the lesser of the height, Hb, and the width, Wb, where: Attached Graphic(C) the total emissions of NOx (nitrogen oxide plus NO2) from all existing and proposed facilities on the property do not exceed the most restrictive of the following: (i) 250 tpy; (ii) the value (0.3125 D) tpy, where D equals the shortest distance in feet from any existing or proposed stack to the nearest property line. (7) Upon issuance of a standard permit for electric generating units, registrations under this section for engines or turbines used to generate electricity will no longer be accepted, except for: (A) engines or turbines used to provide power for the operation of facilities registered under the Air Quality Standard Permit for Concrete Batch Plants; (B) engines or turbines satisfying the conditions for facilities permitted by rule under Subchapter E of this title (relating to Aggregate and Pavement); or (C) engines or turbines used exclusively to provide power to electric pumps used for irrigating crops.</content><note type="source"><p>Source Note: The provisions of this §106.512 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653; amended to be effective June 13, 2001, 26 TexReg 4108.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scW/s106.513"><num value="106.513">§106.513</num><heading>Natural Gas-Fired Combined Heat and Power Units</heading><content>(a) Applicability.(1) This section applies to combined heat and power (CHP) units that are powered by pipeline-quality natural gas-fired engines, including turbines. This section also authorizes any fugitive components associated with a CHP unit authorized by this section.(2) This section does not relieve the owner or operator from complying with any other applicable provision of the Texas Health and Safety Code, Texas Water Code, rules of the Texas Commission on Environmental Quality (TCEQ), or any additional local, state, or federal laws or regulations. Emissions that exceed the limits in this section are not authorized and are violations.(b) Definitions.(1) Combined heat and power (CHP) unit--A collection of facilities and other equipment that generally consists of an electric generating unit (EGU) and a means of extracting energy from the EGU for useful purposes other than electricity generation, such as heating or cooling. A CHP unit does not include facilities for generating additional electricity after the EGU. Equipment that is not a source of emissions itself but also extracts energy from the exhaust flow to create electricity is not a facility and may be used in addition to a CHP unit authorized by this section.(2) Pipeline-quality natural gas--A naturally occurring fluid mixture of hydrocarbons (composed predominantly of methane, with lesser amounts of ethane, propane, nitrogen, carbon dioxide, and trace amounts of hydrogen sulfide) produced in geological formations beneath the Earth's surface that maintains a gaseous state at standard atmospheric temperature and pressure under ordinary conditions, and that is provided by a supplier through a pipeline. Pipeline-quality natural gas must either be composed of at least 70% methane by volume, or have a gross calorific value between 950 and 1,100 British thermal units (BTU) per standard cubic foot. Sour gas as defined in §101.1 of this title (relating to Definitions) is not pipeline-quality natural gas for purposes of this section.(c) General Requirements.(1) A CHP unit must be registered with the commission using the appropriate PI-7 form or an approved electronic registration method before start of construction. A CHP unit at a residential location that generates less than 20 kilowatts(kW) of electricity does not require registration and does not have to meet any other requirements of this section except subsection (a) of this section and paragraph (2) of this subsection.(2) For a CHP unit to be eligible for authorization under this section, the heat recovered must equal at least 20% of the total heat energy output of the CHP unit. This requirement must be met continuously based on any calendar week of operation except for no more than two weeks in a rolling 52-week period if operation of the EGU component is necessary due to lack of available electricity.(3) No owner or operator of a CHP unit that is required to register under this section may begin construction and/or operation without first obtaining written approval from the executive director.(4) Except for oxidation-reduction (three-way) catalysts on rich-burn engines, and oxidation catalyst controls as required by subsection (d)(3) or (4) of this section, add-on controls may not be used to comply with the emission standards of this section.(5) Any individual CHP unit, or any group of units meeting paragraph (7)(B) of this subsection, may not exceed 15 megawatts (MW) in capacity.(6) Only one permit by rule (PBR) for Natural Gas-Fired CHP Units per this section may be registered at a site.(7) No more than one CHP unit may be authorized at a site under this section, except as follows:(A) Any units with a capacity of less than 20 kW are not limited in number, or restricted in location. Units with a capacity of less than 20 kW are not required to be considered when applying subparagraphs (B) or (C) of this paragraph.(B) Multiple units may be authorized under this PBR if all stack emission points associated with the units are located within a circular area with a radius of 200 feet, and the total EGU capacity of the group is not greater than 15 MW.(C) Multiple units may be authorized under this PBR if all stack emission points associated with the units are separated by a distance of at least 900 feet. Multiple groups of units meeting the requirements of subparagraph (B) of this paragraph may be authorized if the groups' emission points are separated by a distance of at least 900 feet.(8) Notwithstanding fuel restrictions elsewhere in this section, during an emergency, this PBR authorizes the use of propane, liquefied petroleum gas, gasoline, diesel, or fuel oil as an approved fuel for not more than 720 hours in any 365-day period. This PBR also authorizes brief use of these emergency fuels as needed for purposes of maintenance or testing, for not more than two hours in any seven-day period.(d) Emission Standards and Control Requirements.(1) Notwithstanding paragraphs (2), (3), or (4) of this subsection, a CHP unit with a capacity less than 20 kW is not subject to a nitrogen oxides (NOX ) or carbon monoxide (CO) emission standard, and is not subject to the requirement for an oxidation catalyst control device.(2) A CHP unit or any combination of units with a total capacity greater than or equal to 20 kW, but less than or equal to 8 MW, must meet the following emission standards: 1.0 pound of NOX per megawatt-hour (lb NOX /MWh); and 9.0 lb CO/MWh.(3) Except as provided in paragraph (4) of this subsection, a CHP unit or any combination of units with a total capacity greater than 8 MW must meet the following emission standards: 0.7 lb NOX /MWh; and 9.0 lb CO/MWh. A CHP unit or units under this paragraph must also be equipped with an oxidation catalyst control device that maintains a minimum of 70% control of volatile organic compounds (VOC) in the CHP unit exhaust stream.(4) Any combination of CHP units with a total capacity greater than 8 MW that are at least 900 feet apart from one another must meet the following emission standards and control requirements. For the purposes of this paragraph, any group of units under subsection (c)(7)(B) of this section is considered to be one unit when determining whether subparagraph (A) or (B) of this paragraph applies.(A) CHP units with a capacity less than or equal to 8 MW: 1.0 pound of NOX per megawatt-hour (lb NOX /MWh); and 9.0 lb CO/MWh.(B) CHP units with a capacity greater than 8 MW: 0.7 lb NOX /MWh; and 9.0 lb CO/MWh. A CHP unit under this subparagraph must also be equipped with an oxidation catalyst control device that maintains a minimum of 70% control of VOC in the CHP unit exhaust stream.(5) Compliance with the NOX standards above may be achieved by taking credit for the heat recovered from the combustion unit. Credit will be at the rate of 1.0 MWh for each 3.4 million BTU of heat recovered. In order to claim this credit for CHP for units not sold and certified as an integrated package by the manufacturer, the owner or operator must provide as part of the application documentation of the heat recovered, electric output, efficiency of the generator alone, efficiency of the generator including CHP, and the use for the non-electric output.(e) Monitoring and Testing. CHP units authorized under this section with an electric generating capacity greater than or equal to 20 kW must meet the following requirements:(1) Internal combustion engine-based CHP units (excluding turbines).(A) The owner or operator shall initially analyze the emissions from the CHP unit using a portable analyzer no later than 180 calendar days after startup.(B) After the initial testing specified by subparagraph (A) of this paragraph, the owner or operator shall conduct ongoing monitoring using a portable analyzer, once in the first half of each calendar year and once in the second half of each calendar year, with at least two months between tests. When a CHP unit did not operate for more than 1,000 hours in that half of the year, this test is not required.(C) The portable analyzer must be operated at minimum in accordance with the manufacturer's instructions. A copy of the manufacturer's instructions shall be made available upon request. The NOX and CO emissions must be converted into units of lb/MWh.(2) Internal combustion engine-based CHP units and turbines. If the CHP unit is not certified to meet the emission standards of subsection (d) of this section by the manufacturer according to a United States Environmental Protection Agency (EPA) testing protocol, the unit must be tested within 90 days of startup for NOX and CO according to appropriate EPA reference methods, California Air Resources Board methods, or equivalent alternative testing methods approved by the executive director and in accordance with the appropriate procedures of the TCEQ Sampling Procedures Manual. Tests must consist of three runs with a minimum of 30 minutes for each run or longer if required by the reference method. All engine- and turbine-based CHP units designed to generate more than 375 kW must be retested by the above method after every 16,000 hours of operation, regardless of certification.(3) All CHP units which are required by subsection (d)(3) or (4) of this section to have an oxidation catalyst control device shall be tested to verify compliance with the required 70% VOC control efficiency within 90 days of startup. In lieu of the above test, the 70% VOC control requirement shall be satisfied if the unit is tested for gaseous organic compounds and the reduction is at least 90%. The testing shall be conducted using EPA reference methods or equivalent alternative testing methods approved by the executive director and in accordance with the appropriate procedures of the TCEQ Sampling Procedures Manual. All units required to be equipped with an oxidation catalyst control device must also be retested after every 16,000 hours of operation.(4) Except for rich-burn engines equipped with oxidation-reduction (three-way) catalysts, and units required to be equipped with an oxidation catalyst under subsection (d)(3) or (4) of this section, the uncontrolled source must demonstrate compliance with the emission standards in subsection (d) of this section.(f) Recordkeeping. In addition to the minimum records required by §106.8 of this title (relating to Recordkeeping), the owner or operator must keep the following records:(1) For the life of the CHP unit, the registration application and any additional representations made during the approval process to obtain the registration; and(2) The owner or operator must keep the following records for at least two years and make them available to the TCEQ or any local pollution control program with jurisdiction upon request:(A) A record of every one-week period of operation where the CHP unit did not comply with subsection (c)(2) of this section; (B) All monitoring and testing data generated in compliance with subsection (e) of this section and in a format that shows the emission standards have been met;(C) Records of CHP unit operation sufficient to demonstrate compliance with any applicable hour-based requirements of subsection (e) of this section;(D) Records of maintenance described in subsection (g)(2) of this section; and(E) Records of the number of hours that any emergency fuel is used under subsection (c)(8) of this section, and the reason why operating on an emergency fuel is necessary.(g) Planned Maintenance, Startup, and Shutdown.(1) This PBR authorizes all emissions from planned startup and shutdown activities associated with facilities that are authorized by this section.(2) This PBR authorizes emissions from the following planned maintenance activities associated with facilities authorized by this section: routine maintenance including, but not limited to, filter changes, oxygen sensor replacements, overhauls, lubricant changes, spark plug changes, and emission control system maintenance.</content><note type="source"><p>Source Note: The provisions of this §106.513 adopted to be effective August 16, 2012, 37 TexReg 6037.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c106/scX"><num value="X">SUBCHAPTER X</num><heading>WASTE PROCESSES AND REMEDIATION</heading><section identifier="/us/state/tx/tac/t30/p1/c106/scX/s106.531"><num value="106.531">§106.531</num><heading>Sewage Treatment Facility</heading><content>Sewage treatment facilities, excluding combustion or incineration equipment, land farms, or grease trap waste handling or treatment facilities are permitted by rule.</content><note type="source"><p>Source Note: The provisions of this §106.531 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scX/s106.532"><num value="106.532">§106.532</num><heading>Water and Wastewater Treatment</heading><content>Water and wastewater treatment units are permitted by rule, provided the following conditions of this section are met. (1) The facility performs only the following functions: (A) disinfection; (B) softening; (C) filtration; (D) flocculation; (E) stabilization; (F) taste and odor control; (G) clarification; (H) carbonation; (I) sedimentation; (J) neutralization; (K) chlorine removal; (L) activated sludge treatment, anaerobic treatment, and associated control of gases from these treatments; (M) aerobic oxidation/biodegration using oxygen or peroxide in the absence of nitrogen or other gas that would cause stripping of volaltile organic compounds (VOC) from the water; (N) stripping VOC, ammonia, or other air contaminants from the water with air or other gas, provided the stripped gases are controlled with an abatement system that meets the requirements of §106.533(5) of this title (relating to Water and Soil Remediation). For ammonia or hydrogen chloride (HCl) or other acid gas emissions, abatement may include a water or caustic scrubbing system as a means of complying with this section. Final emissions of HCl resulting from combustion of chlorine or chlorine-containing compounds shall not exceed 0.1 pounds per hour; (O) liquid phase separation of VOC and water in which: (i) the sum of the partial pressures of all species of VOC in any sample is less than 1.5 psia; or (ii) the separator is enclosed and emissions are vented through an emission abatement system meeting the requirements specified previously for stripped VOC and ammonia; (2) Chlorine or sulfur dioxide (SO 2) shall be used only in containers approved by the United States Department of Transportation and emissions of chlorine or SO2 from treatment of water or decontamination of equipment at any water treatment plant shall not exceed ten tons per year. (3) The following shall not be permitted by rule under this section: (A) gas stripping or aeration facilities where VOC or other air contaminants are stripped from water directly to the atmosphere; (B) disposal facilities using land surface treatment; (C) surface facilities associated with injection wells; (D) cooling towers in which VOC or other air contaminants may be stripped to the atmosphere.</content><note type="source"><p>Source Note: The provisions of this §106.532 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scX/s106.533"><num value="106.533">§106.533</num><heading>Remediation</heading><content>(a) Applicability. Equipment used to extract, handle, process, condition, reclaim, or destroy contaminants for the purpose of remediation is permitted by rule, provided that all the following conditions of this section are satisfied. (b) Scope. The following terms apply to this section. (1) Affected property--The entire area, including on-site and off-site and including all environmental media, that contains releases of chemicals of concern. (2) Affected sources--Include, but are not limited to, stockpiles of contaminated/remediated materials/soils and surface impoundments. (3) Dry cleaning compounds--Include the following chlorinated and non-chlorinated dry cleaning solvents used in the cleaning of garments or other fabrics: (A) perchloroethylene, also known as tetrachloroethylene, and its degradation products, including trichloroethylene, 1,2-dichloroethylene, and vinyl chloride; (B) petroleum-based solvents such as Stoddard Solvent, naphtha, and other petroleum distillates; (C) hydrocarbons and synthetic hydrocarbons such as DF-2000TM fluid, EcoSolvTM , PureDryTM , or the equivalent; (D) silicone-based solvents containing decamethylcyclopentasiloxane; and (E) other nonaqueous solvents such as carbon tetrachloride, dipropylene glycol tertiary butyl ether, 1,1,1-trichloroethane, and 1,1,2-trichloro-1,1,2-trifluoroethane. (4) Effects screening levels (ESLs)--Values used by the commission to evaluate the potential for effects that may occur as a result of exposure to concentrations of constituents in the air. The ESLs are based on data concerning health effects, odor nuisance potential, effects with respect to vegetation, and corrosion effects. ESL updates, which are published periodically, were last revised October 1, 2003. (5) Facility--A discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a stationary source. Once a remediation facility is at a site, all remediation equipment and related sources are covered by this section. Facilities include, but are not limited to, control devices, tanks, containers, liquid separators, material transfer systems, vacuum pumps, and associated components and connecting piping, but do not include below-ground pilot wells or well tests when no additional aboveground equipment is used. An extraction well used during a remediation project is considered a facility, not a well test. (6) Off-site receptor--Any recreational area, residence, commercial/industrial facility, or other normally occupied structures not used solely by the owner or operator of the facilities or the owner of the site upon which the facilities are located. Measurements of distances to determine compliance with this distance restriction must be taken toward structures that are in use as of the date that a notification is filed with the commission. (7) Petroleum compounds--Solids, liquids, or gases produced from natural formations of crude oil, tar sands, shale, coal, and natural gas; or refinery fuel products (which may contain additives). (8) Remediation--An act or process taken to reduce or eliminate contaminants in the environment. This process may include, but is not limited to, assessment or treatment activities such as air, soil, or water sampling, or pilot tests, treatment, or post-clean-up activities that use facilities. (c) General requirements. The following general requirements apply to this section. (1) Applicability. This section covers only remediation performed at the affected property on a given site where the original contamination occurred, or at a nearby site secondarily affected by the contamination. This section does not cover any treatment facility where materials are brought in from another site or facilities unrelated to remediation. Such treatment facilities are subject to §116.110 of this title (relating to Applicability) and must obtain an air new source review permit. (2) Contaminants. The identification of the contaminants at a site must be accomplished using the methodology specified by the applicable remediation program and the United States Environmental Protection Agency (EPA) or commission-approved method. (3) Controls. The selection of appropriate equipment for remediation, at a minimum, must meet the methodology approved by the applicable remediation program (e.g., Petroleum Storage Tank (PST) Program, Voluntary Cleanup Program, Superfund, etc.). Use of any control device may be discontinued when the influent concentrations show that the facility can meet the appropriate emission limits without controls. (4) Elevated vents. The height of any vents associated with the remediation must be at least ten feet above ground level. (5) Multiple facilities at a site. There may be multiple remediation facilities at a site. However, each remediation facility must be separated from all other remediation facilities by a distance of at least 100 feet. Any individual facilities not separated by this distance must be combined and treated as a single facility for purposes of meeting the conditions of this section. (6) Nuisance. The handling, processing, and stockpiling of any materials associated with facilities under this section must not cause a nuisance as defined in §101.4 of this title (relating to Nuisance). (7) Operations. Wherever this section specifies that an action be performed periodically (e.g., weekly), the requirement applies only when the equipment is in operation for that period. (8) Spills. Air emissions resulting from emergency containment and removal of soil or water from spills must comply with Chapter 101 of this title (relating to General Air Quality Rules) and are not authorized by this section. (9) Visible emissions. Compliance with this requirement will be determined by use of EPA Test Method 22, found in 40 Code of Federal Regulations, Part 60, Appendix A, as published in the February 12, 1999 issue of the Federal Register. There will be no visible emissions leaving the site for a period exceeding 30 seconds in any six-minute period from the following operations: (A) handling, processing (screening, crushing, etc.), groundwater air stripping, and stockpiling of contaminated soil; (B) handling, stockpiling, and in-situ chemical oxidation of groundwater and soils; and (C) conditioning (adding moisture) of remediated soil. (d) Requirements for sites contaminated only with petroleum compounds. For the remediation of sites contaminated only with petroleum compounds, the following requirements must be met. (1) For facilities with an off-site receptor within 100 feet: (A) if a control device meeting the conditions of subsection (g) of this section is used, the total emissions from each facility must meet the following emission limits: (i) total petroleum hydrocarbons must not exceed 1.0 pound per hour (lb/hr); (ii) the benzene component must not exceed 0.1 lb/hr; and (iii) the hydrogen sulfide component (for non fuel-dispensing sites) must not exceed 0.1 lb/hr; and (B) when a control device is not used, the total emissions from each facility must meet the following emission limits: (i) the total petroleum hydrocarbons must not exceed 0.1 lb/hr; (ii) the benzene component must not exceed 0.01 lb/hr; and (iii) the hydrogen sulfide component (for non fuel-dispensing sites) must not exceed 0.01 lb/hr. (2) For facilities with equal to or greater than 100 feet to the nearest off-site receptor, emissions from all point sources are limited to the following: (A) total petroleum hydrocarbons are limited to 1.0 lb/hr; (B) the benzene component must meet the emissions and distance requirements of §106.262 of this title (relating to Facilities (Emission and Distance Limitations)); (C) the hydrogen sulfide component (for non fuel-dispensing sites) must meet the emissions and distance requirements of §106.262 of this title; (3) For all sites regulated by this section to which the agency's PST remediation and/or reimbursement requirements are applicable, sampling and lab analysis of influent and effluent vapors must be performed at least monthly to demonstrate compliance with the control equipment efficiency and/or emission rate limits of this section, and with any related PST requirements, unless an alternative evaluation method is approved by the applicable agency remediation program. (e) Requirements for sites contaminated only with dry cleaning compounds. For the remediation of sites contaminated only with dry cleaning compounds, the following requirements must be met. (1) For facilities with an off-site receptor within 100 feet, emissions of each individual compound from each facility must meet the following emission limits: (A) if a control device meeting the requirements of subsection (g) of this section is used, §106.261 of this title (relating to Facilities (Emission Limitations)) or §106.262 of this title (assuming 100 feet), whichever is more stringent; (B) if a control device is not used, 10% of the values determined by subparagraph (A) of this paragraph; (C) the maximum allowable emission rate limit for any individual compound must be 0.04 lb/hr, regardless of the control method unless §106.261 or §106.262 of this title specify a higher emission rate. (2) For facilities with equal to or greater than 100 feet to the nearest off-site receptor, emissions of each individual compound from each facility must meet the emissions and distance requirements of §106.261 and §106.262 of this title. The maximum emission rate limit for any individual compound must be 0.04 lb/hr, regardless of the control method unless §106.261 or §106.262 of this title specify a higher emission rate. (3) If a control device is needed to meet the emission limits of this section, only a carbon adsorption system (CAS) that meets the requirements of subsection (g) of this section may be used. (4) Additional technical and administrative requirements for the remediation of dry cleaning sites may be found in Texas Health and Safety Code, §§374.001 - 374.253. (f) Requirements for all other sites and affected properties. For the remediation of sites not covered by subsections (d) or (e) of this section, the following requirements must be met. (1) The emission rates are limited to the following requirements. (A) Hourly emissions of each individual organic and inorganic compound from each facility (other than products of combustion) must meet the most stringent of the following: (i) §106.261 of this title; (ii) §106.262 of this title; or (iii) if not specifically listed in §106.262 of this title and is on the ESL list, effective October 1, 2003, with a short-term ESL for the compound of less than or equal to 100 micrograms per cubic meter (µg/m3 ) but greater than or equal to 2 µg/m 3 , emissions may not exceed 0.04 lb/hr. If the short-term ESL for the compound is less than 2 µg/m3 , emissions may not exceed 0.01 lb/hr. (B) Total annual emissions of each organic or inorganic compound are limited to five tons per year for each facility. (2) If a control device is needed to meet the emissions limits of this section, the device must satisfy the appropriate conditions listed under subsection (g) of this section. (3) All emission points and area sources associated with each facility must be located at least 100 feet from any off-site receptor. (g) Control devices. When a control device is used at a facility, the device must satisfy one of the following conditions. If a thermal control device is used, the products of fuel combustion (nitrogen oxides, sulfur dioxide, carbon monoxide, volatile organic compounds (VOC), or total inhalable particulate matter) are authorized if the facility is operated in compliance with this section, and all control devices must comply with applicable opacity restrictions in Chapter 111 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter). (1) Direct-flame combustion. The vapors may be burned in a direct-flame combustion device (incinerator, furnace, boiler, heater, or other enclosed direct-flame device) that meets the following requirements. (A) Design requirements. Each direct-flame combustion device must be automatically controlled to maintain a minimum temperature of 1,400 degrees Fahrenheit or higher in the combustion chamber (secondary chamber, if dual-chamber) and have a gas retention time of 0.5 second or greater. (B) Operational restrictions. The temperature of the device must be maintained at a minimum of 1,400 degrees Fahrenheit. (C) Compliance demonstrations. Continuous temperature monitors to record the temperature of the combustion chamber (secondary chamber, if dual-chamber) must be installed and maintained. Records of temperature data must be maintained. (2) Flare. The vapors may be burned in a flare that meets the following requirements. (A) Design requirements. (i) The flare must be equipped with a flare tip designed to provide good mixing with air, flame stability, and meet the most stringent of either §106.492 of this title (relating to Flares); or 40 Code of Federal Regulations (CFR) §60.18, General Control Device Requirements (as published in the October 17, 2000 issue of the Federal Register. (ii) The flare must be equipped with a continuously burning pilot or other automatic ignition system that assures gas ignition and provides immediate notification of appropriate personnel when the ignition system ceases to function. (B) Operational restrictions. Under no circumstances may liquids be burned in the flare. (C) Compliance demonstrations. Visible emissions must not be permitted for more than five minutes in any two-hour period. (3) Catalytic oxidizer. The vapors may be burned in a catalytic oxidizer that meets the following requirements. (A) Design requirements. The design destruction efficiency of the catalytic oxidizer must be at least 90% for the contaminants at the site. (B) Operational restrictions. The appropriate catalyst must be used depending on the type of contaminants in accordance with the manufacturer's guidelines. (C) Compliance demonstrations. An evaluation of oxidizer effectiveness must be made initially (within two hours of startup), and at least weekly, using a portable flame ionization detection (FID) or photo-ionization detector (PID) in conjunction with a flow meter to determine the quantity of carbon compounds in the inlet and outlet of the catalytic oxidizer and to demonstrate compliance with the emission rate limits of this section. The FID or PID instrument chosen must be capable of properly detecting the types of contaminants present. Records of oxidizer effectiveness must be maintained. (4) Internal combustion engine. The vapors may be burned in an internal combustion engine that meets the following requirements. (A) Design requirements. The design destruction efficiency of the internal combustion engine must be at least 99% for the contaminants at the site. (B) Operational restrictions. Chlorinated or sulfur compounds must not be burned in these facilities. (C) Compliance demonstrations. An evaluation of engine effectiveness must be made initially (within two hours of startup) and at least weekly, using a PID or FID in conjunction with a flow meter to determine the quantity of carbon compounds in the inlet gas stream and the engine exhaust, and to demonstrate compliance with the emission rate limits of this section. The FID or PID instrument chosen must be capable of properly detecting the types of contaminants present. Records of engine effectiveness must be maintained. (5) CAS. The vapors may be routed through a CAS consisting of at least two activated carbon canisters that are connected in a series. The system must meet the following additional requirements. (A) Design requirements. Prior to the use of a CAS at a site, there must be a demonstration that activated carbon is an appropriate choice for control of the contaminants at the site. (B) Operational restrictions. The CAS must be operated to minimize breakthrough and maintain compliance with the emission limits of this section. When the VOC breakthrough is detected in the outlet of the initial canister, the waste gas flow must be switched to the second canister immediately. Within four hours of detection of breakthrough, a fresh canister must be placed as the new final polishing canister. Sufficient fresh activated carbon canisters must be maintained at the site to ensure fresh polishing canisters are installed within four hours of detection of breakthrough. (C) Compliance demonstrations. (i) The CAS must be sampled initially (within two hours of startup) and periodically to determine breakthrough. Breakthrough is defined as a measured VOC concentration of 100 parts per million by volume (ppmv) in the outlet of the initial canister. The sampling point must be at the outlet of the initial canister, but before the inlet to the second or final polishing canister. Sampling must be performed while venting maximum emissions to the CAS (e.g., during loading of tank trucks, during tank filling, during process venting). The CAS must be monitored on a weekly basis or 20% of the design carbon replacement interval, whichever is less. (ii) An FID or PID instrument capable of properly detecting the types of contaminants present must be used for VOC sampling. (iii) At dry cleaning remediation sites, additional sampling to determine total organics and speciated chlorinated compounds is required initially (within two hours of startup) and at least monthly. (h) Fugitive emissions when no control device is used for remediation. In the cases where emission releases are not directly emitted from a control device or stack which can be sampled, compliance must be demonstrated by the use of a PID or FID initially and at least on a weekly basis. The FID or PID instrument chosen must be capable of properly detecting the types of contaminants present. Measurement should occur as close as possible to the remediation activity, but no further away than the nearest property line. The concentration measured must be equal to or less than the specific air contaminant's ESL. If an ESL is exceeded, remediation must cease until corrective action restores the concentration to below ESL values. The conversion from PID and FID devices to ESLs must use the following formula. Attached Graphic(i) Other regulatory requirements. (1) Voluntary Cleanup Program. A state or local permit is not required for remediation conducted on a site as part of a voluntary cleanup. A voluntary cleanup must be coordinated with ongoing federal and state hazardous waste programs. The persons conducting a voluntary cleanup shall comply with any federal or state standard, requirement, criterion, or limitation that the remediation would otherwise be subject if a permit were required (see Texas Health and Safety Code, §361.611). (2) Superfund Cleanup Program. A state or local permit is not required for remediation conducted on a site as part of a Superfund project. A Superfund project must be coordinated with ongoing federal and state hazardous waste programs. The persons conducting a cleanup shall comply with any federal or state standard, requirement, criterion, or limitation that the remediation would otherwise be subject if a permit were required (see Texas Health and Safety Code, §361.196). (3) Local restrictions. This section does not exempt these facilities from any local government regulations or other local government requirements, permits, registrations, or other authorizations required by local authorities. (4) State regulations. This section does not exempt remediation equipment from any additional state regulations. (5) Federal air regulations. Compliance with all applicable federal requirements must be satisfied, including air standards and requirements for hazardous air pollutants under 40 CFR Part 63, National Emission Standards for Hazardous Air Pollutants for Source Categories, Subpart GGGGG, National Emission Standards for Hazardous Air Pollutants: Site Remediation, effective October 8, 2003. (j) Administrative requirements. (1) Notification. Before starting remediation (pilot test or treatment), the owner or operator shall notify the commission in writing using the Standard Permit/Permit by Rule Relocation Form. Notifications for multiple sites that are part of the same affected property may be submitted at the same time in accordance with the following requirements. (A) The notification is not subject to the requirements of §106.50 of this title (relating to Registration Fees for Permits by Rule) or Chapter 60 of this title (relating to Compliance History). (B) Notifications must be sent to the appropriate commission regional office, any local air pollution control program having jurisdiction over the site, and appropriate remediation program. Notifications must include a return receipt of delivery. (C) Pilot test notifications must be received by those listed in subparagraph (B) of this paragraph prior to commencement of activities. (D) Updated or additional notification must be received by those listed in subparagraph (B) of this paragraph prior to commencement of treatment activities and must contain specific information concerning the basis (measured or calculated) for the expected emissions from the facility. The notification must also explain details as to why the control device can be expected to perform as represented. (E) Any remediation project that changes or eliminates a represented control device during the lifetime of the project must update those listed in subparagraph (B) of this paragraph by filing an amended notification as soon as practicable after the change and after confirmation with the appropriate remediation program. (2) Records. To demonstrate compliance with this section and with §106.8 of this title (relating to Recordkeeping), owners and operators of remediation equipment must, at a minimum, meet the following requirements. (A) Records required by this section must be maintained at the site or at the nearest staffed location, and made available upon request to personnel from the commission or any local agency having jurisdiction over the site. (B) The following minimum records of sampling or monitoring must be maintained: (i) sample time and date; (ii) monitoring results (ppmv); (iii) corrective action taken, including the time and date of the action; (iv) process operations occurring at the time of sampling; (v) records of compliance with the emission rate limits of this section; (vi) a record of the demonstration that the chosen control method is an appropriate choice for the site; and (vii) a record of the return receipt demonstrating notification to the appropriate regional office, local air pollution control programs having jurisdiction over the site, and appropriate remediation program.</content><note type="source"><p>Source Note: The provisions of this §106.533 adopted to be effective July 4, 2004, 29 TexReg 6094.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c106/scX/s106.534"><num value="106.534">§106.534</num><heading>Municipal Solid Waste Landfills and Transfer Stations</heading><content>Municipal solid waste landfill (MSWLF) cell construction or modification, as defined in 40 Code of Federal Regulations (CFR) §60.751, of MSWLF Type I, Type I-AE, Type II, Type III, Type IV, Type IV-AE, and Type V transfer stations as defined in §330.5 of this title (relating to Classification of Municipal Solid Waste Facilities) that meet the conditions listed in this section are permitted by rule.(1) The following are not authorized by this section:(A) MSWLF sites that have facilities other than cell construction and waste disposal; or(B) maintenance, startup, shutdown, or emission excursions under Chapter 101, Subchapter F of this title (relating to Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities).(2) The owner or operator must have obtained a valid permit or registration under §330.7 of this title (relating to Permit Required), for the site.(3) The MSWLF or transfer station must have a design capacity of less than 2.5 million megagrams (Mg) by mass or 2.5 million cubic meters by volume.(4) The MSWLF or transfer station must have a non-methane organic compound emission rate of less than 50 Mg per year as determined by United States Environmental Protection Agency (EPA) publication AP-42, Compilation of Air Pollutant Emission Factors.(5) Emissions from the site are limited to 25 tons per year of volatile organic compounds or particulate matter. There are no short-term limitations for particulate matter and volatile organic compounds.(6) Visible emissions from the site must not leave the property for a period exceeding 30 seconds in any six-minute period as determined by EPA Test Method 22, as found in 40 CFR Part 60, Appendix A.(7) Transfer stations not located at an MSWLF site shall:(A) operate in compliance with the Texas Solid Waste Disposal Act, and;(B) be required to have the waste holding area covered by a ventilated building that has a minimum vertical exhaust vent located at least 16 feet above ground level with a capacity of 45,000 cubic feet per minute, if the facility retains over 1,000 tons of waste overnight.(8) Facilities shall comply with applicable requirements of all federal regulations and state rules.</content><note type="source"><p>Source Note: The provisions of this §106.534 adopted to be effective March 14, 1997, 22 TexReg 2439; amended to be effective September 4, 2000, 25 TexReg 8653; amended to be effective March 23, 2006, 31 TexReg 2184.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c111"><num value="111">CHAPTER 111</num><heading>CONTROL OF AIR POLLUTION FROM VISIBLE EMISSIONS AND PARTICULATE MATTER</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c111/scA"><num value="A">SUBCHAPTER A</num><heading>VISIBLE EMISSIONS AND PARTICULATE MATTER</heading><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.111"><num value="111.111">§111.111</num><heading>Requirements for Specified Sources</heading><content>(a) Visible emissions. No person may cause, suffer, allow, or permit visible emissions from any source, except as follows.(1) Stationary vents. Visible emissions from any vent shall not exceed the following opacities and must meet the following requirements.(A) Opacity shall not exceed 30% averaged over a six-minute period.(B) Opacity shall not exceed 20% averaged over a six-minute period for any source on which construction was begun after January 31, 1972.(C) Opacity shall not exceed 15% averaged over a six-minute period for any source having a total flow rate greater than or equal to 100,000 actual cubic feet per minute, unless an optical instrument capable of measuring the opacity of emissions is installed in the vent in accordance with subparagraph (D) of this paragraph. Facilities utilizing such instruments shall meet opacity limits outlined in subparagraph (A) or (B) of this paragraph as applicable. Records of all such measurements shall be retained as provided for in §101.8 of this title (relating to Sampling).(D) Any opacity monitoring system installed as provided for in subparagraph (C) of this paragraph must satisfy the new source performance standards requirement for opacity continuous emissions monitoring systems (CEMS) as contained in 40 Code of Federal Regulations (CFR) Part 60, Appendix B, Performance Specification 1. In order to demonstrate compliance with Performance Specification 1, the system shall undergo performance specification testing as outlined in 40 CFR 60.13. The facility will maintain records of all such testing for a period of not less than two years which shall be available for inspection by federal, state, and local air pollution control agencies. Compliance with this provision shall be accomplished within one year of the effective date of this rule, except as specified in paragraph (2) of this subsection.(E) Visible emissions during the cleaning of a firebox or the building of a new fire, soot blowing, equipment changes, ash removal, and rapping of precipitators may exceed the limits set forth in this section for a period aggregating not more than six minutes in any 60 consecutive minutes, nor more than six hours in any 10-day period. This exemption shall not apply to the emissions mass rate standard, as outlined in §111.151(a) of this title (relating to Allowable Emissions Limits).(F) Compliance with subparagraphs (A)-(C) of this paragraph shall be determined by applying the following test methods, as appropriate. The highest reading obtained shall determine compliance with the appropriate visible emission limit:(i) CEMS as described in subparagraph (D) of this paragraph;(ii) Test Method 9 (40 CFR 60, Appendix A);(iii) Alternate Method 1 to Method 9, Light Detection and Ranging (40 CFR 60, Appendix A); or(iv) equivalent test method approved by the executive director of the Texas Air Control Board (TACB) and United States Environmental Protection Agency (EPA).(G) Current certification of opacity readers for determining opacities under 40 CFR 60, Appendix A, Method 9, shall be accomplished by the successful completion of a TACB visible emissions evaluator's course by opacity readers no more than 180 days before the opacity reading.(2) Sources requiring continuous emissions monitoring. Beginning March 1, 1994, all stationary vents located at the sources specified in this paragraph shall be equipped with a calibrated and properly operating CEMS for opacity. The system shall be calibrated, installed, operated, and maintained as specified in 40 CFR 51, Appendix P, hereby incorporated by reference:(A) steam generators fired by solid fossil fuel with an annual average capacity factor of greater than 30%, as reported to the Federal Power Commission for calendar year 1974, and with a heat input of greater than 250 million British thermal unit per hour;(B) steam generators that burn oil or a mixture of oil and gas and are not able to comply with the applicable particulate matter and opacity regulations without the use of particulate matter collection equipment, and have been found to be in violation of any visible emission standard contained in a state implementation plan;(C) catalyst regenerators for fluid bed catalytic cracking units of greater than 20,000 barrels per day of total feed capacity.(3) Exemptions from continuous emissions monitoring requirements. Opacity monitors shall not be installed or used to determine opacity from any gas stream or portion of a gas stream containing condensed water vapor which could interfere with proper instrument operation, as determined by the executive director. Opacity monitoring techniques as listed in paragraph (1)(F) of this subsection may be substituted with the approval of the executive director and EPA, the highest reading of which will be used to determine compliance with the appropriate opacity standard. If opacity is determined through 40 CFR 60, Appendix A, Method 9, readings shall be made daily, unless weather or other conditions prevent visual observation.(4) Gas flares.(A) Visible emissions from a process gas flare shall not be permitted for more than five minutes in any two-hour period, except as provided in §101.11(a) of this title (relating to Exemptions from Rules and Regulations). Process gas flares are those used in routine or scheduled facility operations. Acid gas flares, as defined in §101.1 of this title (relating to Definitions), are subject only to the provisions of paragraph (1) of this subsection. Beginning September 1, 1993, compliance with this subparagraph for process gas flares shall be determined:(i) any time there is an operational change in the flare that requires a permit amendment under TACB Regulation VI. Compliance shall be determined using Reference Method 22 (40 CFR 60, Appendix A), Reference Method 9 (40 CFR 60, Appendix A), or an alternative test method approved by the executive director and the United States Environmental Protection Agency (EPA). The observation period for this compliance demonstration shall be no less than two hours unless noncompliance is determined in a shorter time period or operational changes are made to the flare that stop any observed smoking; and(ii) by a daily notation in the flare operation log that the flare was observed including the time of day and whether or not the flare was smoking. For flares operated less frequently than daily, the observation will be made for each operation. The flare operator shall record at least 98% of these required observations. If smoking is detected, compliance with the emission limits of this paragraph shall be determined using Reference Method 22, Reference Method 9, or an alternative test method approved by the executive director and EPA. The observation period for this compliance determination shall be no less than two hours unless noncompliance is determined in a shorter time period or operational changes are made to the flare that stop the smoking. A Method 22 or Method 9 observation will be waived provided the operator reports the flare to be in an upset condition under the requirements of §101.6 of this title (relating to Notification Requirements for Major Upset).(B) Flares used only during emergency or upset conditions are exempt from the compliance monitoring requirements of subparagraph (A)(i) and (ii) of this paragraph.(5) Motor vehicles. Motor vehicles shall not have visible exhaust emissions for more than 10 consecutive seconds. Compliance shall be determined as specified in 40 CFR 60, Appendix A, Method 22.(6) Railroad locomotives or ships.(A) Visible emissions shall not be permitted from any railroad locomotive, ship, or any other vessel to exceed an opacity of 30% for any five-minute period, except during reasonable periods of engine start-up.(B) Compliance with subparagraph (A) of this paragraph shall be determined by applying the following test methods, as appropriate:(i) Test Method 9 (40 CFR 60, Appendix A); or(ii) equivalent test method approved by the executive director and EPA.(7) Structures.(A) Visible emissions shall not be permitted to exceed an opacity of 30% for any six-minute period from any building, enclosed facility, or other structure.(B) Compliance with subparagraph (A) of this paragraph shall be determined by applying the following test methods, as appropriate:(i) Test Method 9 (40 CFR 60, Appendix A); or(ii) equivalent test method approved by the executive director and EPA.(8) Other sources.(A) Visible emissions shall not be permitted to exceed an opacity of 30% for any six-minute period from all other sources not specified in this section.(B) Compliance with subparagraph (A) of this paragraph shall be determined by applying the following test methods, as appropriate:(i) Test Method 9 (40 CFR 60, Appendix A); or(ii) equivalent test method approved by the executive director and EPA.(b) Compliance determination exclusions. Contributions from uncombined water shall not be included in determining compliance with this section. The burden of proof which establishes the applicability of this subsection shall be upon the person seeking to come within its provisions.(c) Solid fuel heating devices.(1) Operating restrictions. In the City of El Paso, including the Fort Bliss Military Reservation, no person shall operate a solid fuel heating device during a period when National Weather Service data indicates that an atmospheric stagnation condition exists or is predicted to exist. For the purposes of this section, a solid fuel heating device shall be defined as any fireplace, wood heater, wood stove, wood-fired boiler, coal-fired furnace, or similar device burning any solid fuel which is used for aesthetic, cooking (excluding commercial cooking), or heating purposes, and located inside a building.(2) Exemptions. An exemption from the requirements of this section may be granted by the executive director of the Texas Air Control Board if one or more of the following conditions are met:(A) the solid fuel heating device is in a period of burn down; that is, a period of time not to exceed three hours for the cessation of combustion within the device;(B) the solid fuel heating device is the sole source of heat for the building in which it is situated; or(C) the solid fuel heating device becomes the sole source of heat within the building because of a temporary power loss.</content><note type="source"><p>Source Note: The provisions of this §111.111 adopted to be effective July 18, 1989, 14 TexReg 3290; amended to be effective November 14, 1990, 15 TexReg 6302; amended to be effective February 12, 1992, 17 TexReg 690; amended to be effective October 23, 1992, 17 TexReg 7083; amended to be effective July 23, 1993, 18 TexReg 4508.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.113"><num value="111.113">§111.113</num><heading>Alternate Opacity Limitations</heading><content>The owner or operator of any facility who is unable to meet the opacity limitations of §111.111(a)(1)(A) and (B) of this title (relating to Requirements for Specified Sources) with available and economically reasonable control technology may apply to the Texas Air Control Board (TACB) for approval of an alternate limit. Within 60 days after receipt of an application, TACB staff will either determine that the application is complete or will determine that it is incomplete and provide a written list of deficiencies. There shall be no more than 180 days between the initial application and the issuance of a certification of completeness by the executive director. Failure to obtain such certification shall result in a voiding of the application. Within 90 days after issuance of the certification of completeness, an adjudicative public hearing will be conducted in accordance with the requirements of §§103.31-103.34 of this title (relating to Initiation of Other Than Rulemaking Hearings) and §§103.41-103.65 of this title (relating to Adjudicative Hearings). The application will be approved if the applicant provides for the hearing record a preponderance of evidence which substantiates that emissions resulting from the alternate opacity limit will not result in an exceedance of any ambient air quality standard or other ambient air concentration limit prescribed by TACB or exacerbate any existing exceedance or cause or contribute to a nuisance as defined in §101.4 of this title (relating to Nuisance) and that:(1) all applicable concentration and mass limitations are met;(2) the facility has failed to meet the applicable opacity limitation during performance tests conducted with both the affected facility and the air pollution control equipment needed to comply with TACB regulations, and which were operating in a manner consistent with good engineering practice for minimizing the opacity of the emissions; and(3) it is technically impractical or economically unreasonable for the facility to comply with the established opacity limits.</content><note type="source"><p>Source Note: The provisions of this §111.113 adopted to be effective July 18, 1989, 14 TexReg 3290.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.121"><num value="111.121">§111.121</num><heading>Single-, Dual-, and Multiple-Chamber Incinerators</heading><content>No person shall cause, suffer, allow, or permit the burning of domestic, municipal, commercial, or industrial solid waste as defined in §101.1 of this title (relating to Definitions) in a single-, dual-, or multiple-chamber incinerator, unless the conditions listed in paragraphs (1) - (6) of this section are met. For purposes of this section, the term "commercial waste" shall be defined as waste material generated from retail and wholesale establishments. The requirements of this section do not apply to hazardous waste incinerators, or hospital and medical/infectious waste incinerators. (1) Particulate emissions shall not exceed 0.18 gram per dry standard cubic meter (g/dscm) or 0.08 grain per dry standard cubic foot (gr/dscf), front-half of sampling train only, when corrected for 7.0% oxygen (O2) in the stack gas according to the formula. Attached Graphic(2) Hydrogen chloride (HCl) emissions greater than 1.8 kilograms (4 pounds) per hour require a control device with a minimum removal efficiency of 95%. (3) Carbon monoxide (CO) emissions shall not exceed 120 parts per million by volume dry basis, when corrected to 7.0% O 2 in the stack gas as specified in paragraph (1) of this section. CO and O2 shall be measured at the same location. Upon the approval of the executive director of the Texas Natural Resource Conservation Commission (TNRCC), a total hydrocarbon (THC) standard may be chosen as an alternative to the CO standard. In such cases, the emissions shall not exceed 20 parts per million, when corrected to 7.0% O 2 in the stack gas as specified in paragraph (1) of this section. THC and O2 shall be measured at the same location. (4) Oxygen content shall be maintained at greater than 4.0% by volume of the emissions of the incinerator, measured at the exit of the incinerator, or at an alternate location approved by the executive director or a designated representative of the TNRCC. Incinerators subject to the requirements of this section may operate at O2 concentrations less than 4.0% by volume if compliance with paragraph (3) of this section can be continuously demonstrated at a lower O2 concentration. (5) Visible emissions shall not exceed an opacity of 5.0% averaged over any six-minute period. (6) Incinerators burning not more than 100 pounds per hour of domestic, municipal, commercial, or industrial solid waste, based on the total weight of materials burned, shall be subject to an opacity limit of 5.0% averaged over a six-minute period, the requirements of §111.127(d) of this title (relating to Monitoring and Recordkeeping Requirements), and the operating requirements of §111.129(1) of this title (relating to Operating Requirements); but shall be otherwise exempt from the provisions of this section and §§111.125, 111.127, and 111.129 of this title (relating to Incineration).</content><note type="source"><p>Source Note: The provisions of this §111.121 adopted to be effective February 7, 1990, 15 TexReg 434; amended to be effective November 14, 1990, 15 TexReg 6303; amended to be effective February 19, 1992, 17 TexReg 1126; amended to be effective June 11, 2000, 25 TexReg 5361.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.123"><num value="111.123">§111.123</num><heading>Medical Waste Incinerators</heading><content>All requirements for medical waste incinerators are in §§113.2070 - 113.2079 of this title (relating to Hospital and Medical/Infectious Waste Incinerators).</content><note type="source"><p>Source Note: The provisions of this §111.123 adopted to be effective February 7, 1990, 15 TexReg 434; amended to be effective November 14, 1990, 15 TexReg 6303; amended to be effective June 11, 2000, 25 TexReg 5361.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.124"><num value="111.124">§111.124</num><heading>Burning Hazardous Waste Fuels in Commercial Combustion Facilities</heading><content>No person shall cause, suffer, allow, or permit the burning of hazardous waste as fuel for energy recovery in any facility that accepts hazardous waste as fuel from off-site sources which involves a commercial transaction or a change in ownership of the waste and is not regulated by the United States Environmental Protection Agency at 40 Code of Federal Regulations (CFR) Part 264 or 265, Subpart O, unless the following requirements are met.(1) Particulate emissions shall not exceed 0.18 gram per dry standard cubic meter or 0.08 grain per dry standard cubic foot, to include particulate matter caught by impinger train, when corrected for 7.0% oxygen in the stack gas according to the formula specified in §111.121(1) of this title (relating to Single-, Dual-, and Multiple-Chamber Incinerators).(2) Hydrogen chloride (HCl) emissions greater than 1.8 kilograms (four pounds) per hour shall be controlled with a minimum removal efficiency of 95%.(3) Destruction and removal efficiency (DRE) shall be at least 99.99% for each principal organic hazardous constituent (POHC) in each waste feed. The POHCs shall be selected according to the method at 40 CFR Part 264.342 and shall be approved in advance by the executive director. DRE shall be determined using the following formula.Attached Graphic(4) The facility shall perform a trial burn according to the requirements listed at 40 CFR Part 270.62 to determine compliance with paragraphs (1)-(3) of this section. The operating conditions and waste feed composition during a trial burn demonstrating compliance with the requirements of paragraphs (1)-(3) of this section shall be maintained as limits for subsequent operation for the facility. Substitution of new hazardous waste constituents and increases in the concentration of any hazardous waste constituent compared to the conditions existing during the trial burn will require retesting, unless such change or substitution has received written approval from the executive director. The operating limits shall be monitored continuously and shall include the following:(A) maximum carbon monoxide level in the exhaust gas of the combustion device;(B) minimum oxygen level in the exhaust gas of the combustion device;(C) maximum waste feed rate to the combustion device;(D) minimum combustion temperature;(E) an appropriate indicator of combustion gas velocity;(F) maximum total hydrocarbons in the exhaust gas of the combustion device; and(G) any other operating limit determined necessary by the executive director to ensure that the requirements of paragraphs (1)-(3) of this section are met.(5) The facility shall not burn any chlorinated hazardous waste or hazardous waste containing any of the following metals, unless the executive director has established an enforceable emission limit designed to protect public health for each metal and for toxic products of incomplete combustion.Attached Graphic(6) The facility shall maintain an automatic waste feed cutoff system which shall activate if the facility is not operating within the limits determined in accordance with paragraph (4) of this section and shall remain activated until the facility is operating within the limits determined in accordance with paragraph (4) of this section.(7) During start-up or shutdown of the facility, hazardous waste fuels must not be fed into the combustion zone unless the facility is operating within the limits determined in accordance with paragraph (4) of this section.(8) Fugitive emissions from the combustion zone shall be controlled by maintaining the combustion zone pressure lower than atmospheric pressure or by keeping the combustion zone totally sealed to prevent fugitive emissions.(9) Compliance with the requirements of paragraphs (1)-(4) and (6)-(8) of this section shall be as soon as practicable, but no later than December 31, 1991. Compliance with paragraph (5) shall be as soon as practicable, but no later than July 31, 1992. This paragraph applies to facilities burning hazardous waste as fuel prior to the effective date of this section. Facilities permitted after that date will be subject to compliance dates specified by permit.</content><note type="source"><p>Source Note: The provisions of this §111.124 adopted to be effective July 11, 1991, 16 TexReg 3605.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.125"><num value="111.125">§111.125</num><heading>Testing Requirements</heading><content>Upon the request of the executive director or a designated representative of the Texas Natural Resource Conservation Commission (commission), or a representative of the United States Environmental Protection Agency, or the local air pollution control agency, compliance with §111.121 of this title (relating to Single-, Dual-, and Multiple-Chamber Incinerators) shall be demonstrated by application of the test methods included in paragraphs (1) - (4) of this section, as appropriate. Compliance with §111.124 of this title (relating to Burning Hazardous Waste Fuels in Commercial Combustion Facilities) shall be demonstrated by application of the test methods included in paragraphs (1) - (5) of this section. Test reports prepared to demonstrate compliance with §111.124 of this title shall clearly document the operating conditions and waste feed composition existing during the test.(1) Particulate matter. Test Method 5 (40 Code of Federal Regulations (CFR) 60, Appendix A) modified to include particulate caught by impinger train;(2) Hydrogen chloride. Test Method 26 or 26A (40 CFR 60, Appendix A), or Test Method outlined in Chapter 5 of the TNRCC "Sampling Procedures Manual," dated July 1985;(3) Carbon monoxide. Test Method 10, 10A, or 10B (40 CFR 60, Appendix A) or, for total hydrocarbons: Test Method 25A (40 CFR Part 50, Appendix A);(4) Opacity. Test Method 9 (40 CFR Part 60, Appendix A);(5) Destruction and removal efficiency. Destruction and removal efficiency, measuring principal organic hazardous constituent (POHC) mass feed rate to the commercial combustion facility, measuring the mass emission rate of POHC in the stack gas, and analyzing the POHC sample obtained from the stack gas, using the following test methods, respectively: Method 8240 of SW-846 "Test Methods for Evaluating Solid Waste," Method 0030 (VOST) of SW-846, Method 5040 of SW-846; or(6) Alternative methods. Equivalent test methods approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §111.125 adopted to be effective February 7, 1990, 15 TexReg 434; amended to be effective November 14, 1990, 15 TexReg 6303; amended to be effective July 11, 1991, 16 TexReg 3605; amended to be effective June 11, 2000, 25 TexReg 5361.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.127"><num value="111.127">§111.127</num><heading>Monitoring and Recordkeeping Requirements</heading><content>(a) Except for incinerators which can qualify for a permit by rule found in §106.491 of this title (relating to Dual Chamber Incinerators), or §106.494 of this title (relating to Pathological Waste Incinerators), incinerators burning more than 100 pounds per hour of waste as specified in §111.121 of this title (relating to Single-, Dual-, and Multiple-Chamber Incinerators) shall install, calibrate, maintain, and operate a monitoring device that continuously measures and records the oxygen (O2) content and temperature of the exhaust gas of the incinerator. Incinerators which qualify for a permit by rule in §106.491 or §106.494 of this title, and which burn more than 100 pounds per hour, shall install, calibrate, maintain, and operate a monitoring device that continuously measures and records the temperature of the exhaust gas of the incinerator. The monitoring device for incinerators equipped with a wet scrubbing device shall continuously measure and record the pressure drop of the gas flow through the wet scrubbing device. Except for incinerators which can qualify for a permit by rule found in §106.491 or §106.494 of this title, incinerators burning more than 225 pounds per hour of domestic, municipal, commercial, or industrial solid waste shall be equipped with continuous emissions monitors which measure and record in-stack carbon monoxide (CO) in addition to the other requirements of this section. A total hydrocarbon (THC) monitor may be substituted for the CO monitor if a THC standard is established in accordance with §111.121(3) of this title. For municipal incinerators built prior to 1990 and burning less than 2,000 pounds per hour of municipal solid waste, a stack test for CO may be performed to establish O2 and temperature requirements necessary to maintain minimum CO emissions, and monitoring of these parameters may be substituted for the CO monitoring device. The O 2, THC, and CO monitoring devices described in this section must be certified for use following procedures outlined in 40 Code of Federal Regulations (CFR) 60, Appendix B, Performance Specifications 3 and 4, respectively. Such certification must be approved by the executive director or a designated representative of the Texas Natural Resource Conservation Commission (TNRCC). Compliance determinations may be made based on results of monitoring with a certified monitor. Compliance with the CO and/or THC requirements specified in §111.121(3) of this title and §111.124(4) of this title (relating to Burning Hazardous Waste Fuels in Commercial Combustion Facilities) may be demonstrated using a rolling hourly average. The rolling hourly average shall be defined as the arithmetic mean of the 60 most recent one-minute concentrations measured by the continuous monitoring system. (b) The owner or operator of an incinerator or commercial combustion facility subject to the requirements of §§111.121, 111.124, and 111.125 of this title (relating to Single-, Dual-, and Multiple-Chamber Incinerators; Burning Hazardous Waste Fuels in Commercial Combustion Facilities; and Testing Requirements), respectively, shall maintain written records of all monitoring and testing results, hours of operation, and quantity of waste burned. Such records shall be retained for a period of not less than two years before being destroyed. Such records shall be made available upon request by authorized representatives of the TNRCC, United States Environmental Protection Agency (EPA), or local air pollution control agencies. Alternately, for facilities other than commercial combustion facilities, in the absence of records verifying waste quantities burned, the design capacity of the unit will be used to determine applicable controls. (c) The owner or operator of a commercial combustion facility subject to the requirements of §111.124 of this title shall install, calibrate, maintain, and operate a monitoring device that continuously measures and records the waste feed rate, combustion gas velocity, opacity, O2 content, CO content, THC content, and temperature of the exhaust gas of the combustion device. CO and THC shall be corrected to 7.0% O2, reported on a dry basis, and measured in the same location. The O2, THC, CO, combustion gas velocity, and opacity devices must be certified for use following procedures outlined in 40 CFR Part 60. Such certification must be approved by the executive director or his designated representative of the TNRCC. Compliance determinations may be made based on results of monitoring with a certified monitor. (d) Upon the request of the executive director or a designated representative of the TNRCC, EPA, or local air pollution control agency, the owner or operator of an incinerator which is exempt from the requirements specified in §111.121 of this title and whose incinerator has the capacity to burn more than 100 pounds per hour shall maintain written records of the amount of waste burned. Such records shall be retained for a period of not less than two years before being destroyed.</content><note type="source"><p>Source Note: The provisions of this §111.127 adopted to be effective February 7, 1990, 15 TexReg 434; amended to be effective November 14, 1990, 15 TexReg 6303; amended to be effective July 11, 1991, 16 TexReg 3605; amended to be effective February 19, 1992, 17 TexReg 1126; amended to be effective June 11, 2000, 25 TexReg 5361.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.129"><num value="111.129">§111.129</num><heading>Operating Requirements</heading><content>The owner or operator of incinerators or commercial combustion facilities subject to the requirements of §§111.121, 111.124, 111.125, and 111.127 of this title (relating to Single-, Dual-, or Multiple-Chamber Incinerators; Burning Hazardous Waste Fuels in Commercial Combustion Facilities; Testing Requirements; and Monitoring and Recordkeeping Requirements), respectively, shall meet the following operating requirements.(1) Except in the case of incinerators with continuous opacity or carbon monoxide monitors, or equivalent monitors approved by the executive director or a designated representative of the Texas Natural Resource Conservation Commission, the incinerator shall be limited in hours of operation from one hour after sunrise to one hour before sunset.(2) Current manufacturer's operating procedures shall be posted on or near each incinerator or the incinerator control room, and the incinerator shall be operated in accordance with those procedures.</content><note type="source"><p>Source Note: The provisions of this §111.129 adopted to be effective November 14, 1990, 15 TexReg 6303; amended to be effective July 11, 1991, 16 TexReg 3605; amended to be effective June 11, 2000, 25 TexReg 5361.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.131"><num value="111.131">§111.131</num><heading>Definitions</heading><content>The following words and terms, when used in this undesignated head, shall have the following meanings, unless the context clearly indicates otherwise.(1) Abrasive blasting--The operation of cleaning or preparing a surface by forcibly propelling a stream of abrasive material against the surface.(2) Hydroblasting--Any abrasive blasting using high pressure liquid as the propelling force or as the active cleaning agent.(3) Private residence--A residence not occupied or used solely by the owner of the property upon which the water storage tank to be blasted is located.(4) Public area--An outdoor area where it may be reasonably anticipated that the public could congregate for more than short-term periods, including, but not limited to, schools, day care centers, convalescent centers, parks, and recreation areas.(5) Shroud--A device which is designed to enclose or surround the area being blasted to minimize the atmospheric entrainment of fine particulates and direct that material to a confined area for disposal. The shroud shall have overlapping seams to prevent leakage of particulates, shall extend a minimum of 15 feet above the area being blasted, and shall have a shade factor of 95% or a control factor of 95% of particles 100 grit or greater. A shade factor is defined as the percent of area impermeable to particles or sunlight.(6) Vacuum blasting--Any abrasive blasting in which the spent abrasive, surface material, and dust resulting from blasting are immediately collected by a vacuum device, equipped with a high efficiency particulate filter.(7) Water storage tank--Any above-ground vessel designed and constructed for the purpose of storing potable water.(8) Wet abrasive blasting--Any abrasive blasting using compressed air as the propelling force, which mixes with water to minimize emissions.</content><note type="source"><p>Source Note: The provisions of this §111.131 adopted to be effective November 1, 1991, 16 TexReg 5833.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.133"><num value="111.133">§111.133</num><heading>Testing Requirements</heading><content>(a) Before abrasive blasting is performed on any previously coated water storage tank, the owner or operator of the tank must determine if lead is present in the existing protective coating by applying the following test methods from the United States Environmental Protection Agency SW-846, Test Methods for Evaluating Solid Waste:(1) Method 3050, Acid Digestion of Sediments, Sludges, and Soils; and(2) Method 6010, Inductively Coupled Plasma Atomic Emission Spectroscopy, or Method 7000, Atomic Absorption Methods. Lead concentrations should be reported in micrograms per gram (micrograms/gm); or(3) an alternate method approved in advance by the executive director or a designated representative of the Texas Air Control Board (TACB).(b) Results of the test(s) required in subsection (a) of this section must be available to the TACB staff or staff from governmental entities having jurisdiction at the site for the duration of the abrasive blasting project. The results must include the name of the testing facility and a person responsible for the accuracy of the test results.(c) Successive coatings need not be retested following initial testing, provided the owner or operator of the water storage tank can furnish verifiable documentation that the lead level of the post-testing coatings is less than 1.0% (10,000 micrograms/gm) lead by weight.</content><note type="source"><p>Source Note: The provisions of this §111.133 adopted to be effective November 1, 1991, 16 TexReg 5833.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.135"><num value="111.135">§111.135</num><heading>Control Requirements for Surfaces with Coatings Containing Lead</heading><content>(a) The authority to conduct abrasive blasting activities under this section does not exempt or excuse any person from responsibility for the consequences, damages, or injuries resulting from the abrasive cleaning. The authority to conduct such activities under this regulation also does not exempt or excuse anyone from complying with all other applicable laws or ordinances, regulations, and orders of governmental entities having jurisdiction, even though the abrasive blasting is otherwise conducted in compliance with this regulation. The owner or operator of the water storage tank being blasted must control emissions from abrasive blasting in a manner that does not cause nuisance conditions, as defined in §101.4 of this title (relating to Nuisance).(b) For water storage tanks with lead concentrations of 1.0% (10,000 micrograms/gm) or greater in the coating, the owner or operator of the tank shall notify the appropriate TACB regional office and any local authorities having jurisdiction over abrasive blasting activities of the blasting in writing at least 10, but not more than 30, working days prior to the date scheduled for the beginning of blasting operations. The notification must include:(1) the location of the tank;(2) the name of the abrasive blasting company;(3) the weight percent of lead in the coating;(4) the control methods to be used; and(5) the expected hours of operation and scheduled start and finish dates.(c) Emissions from abrasive blasting of water storage tanks which have lead in concentrations of 1.0% (10,000 micrograms/gm) or greater by weight in the coating must be controlled by one of the following methods:(1) vacuum blasting;(2) shrouded wet abrasive blasting;(3) shrouded dry abrasive blasting, provided there are no private residences or public areas within 500 feet of the water storage tank;(4) shrouded hydroblasting; or(5) equivalent method approved in advance by the executive director or a designated representative of TACB.</content><note type="source"><p>Source Note: The provisions of this §111.135 adopted to be effective November 1, 1991, 16 TexReg 5833.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.137"><num value="111.137">§111.137</num><heading>Control Requirements for Surfaces with Coatings Containing Less Than 1.0% Lead</heading><content>(a) The authority to conduct abrasive blasting activities under this section does not exempt or excuse any person from responsibility for the consequences, damages, or injuries resulting from the abrasive cleaning. The authority to conduct such activities under this regulation also does not exempt or excuse anyone from complying with all other applicable laws or ordinances, regulations, and orders of governmental entities having jurisdiction, even though the abrasive blasting is otherwise conducted in compliance with this regulation. The owner or operator of the water storage tank being blasted must control emissions from abrasive blasting in a manner that does not cause nuisance conditions, as defined in §101.4 of this title (relating to Nuisance).(b) When there are private residences or public areas within a distance of 500 feet of the water storage tank or 10 times the height of the tank, whichever is greater, the owner or operator of the tank must control emissions from abrasive blasting by one of the following methods:(1) vacuum blasting;(2) shrouded wet abrasive blasting;(3) shrouded dry blasting;(4) shrouded hydroblasting; or(5) equivalent method approved in advance by the executive director or a designated representative of TACB.(c) When there are no private residences or public areas within a distance of 500 feet of the water storage tank or 10 times the height of the tank, whichever is greater, no additional controls are required beyond those stipulated in subsection (a) of this section.</content><note type="source"><p>Source Note: The provisions of this §111.137 adopted to be effective November 1, 1991, 16 TexReg 5833.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.139"><num value="111.139">§111.139</num><heading>Exemptions</heading><content>(a) Interior abrasive blasting of water storage tanks is exempt from §111.133 of this title (relating to Testing Requirements); §111.135 of this title (relating to Control Requirements for Surfaces with Coatings Containing Lead); and §111.137 of this title (relating to Control Requirements for Surfaces with Coatings Containing Less Than 1.0% Lead), if no visible emissions to the atmosphere result from such cleaning.(b) Any abrasive blasting process which propels abrasives at a rate of less than 500 pounds per day is exempt from §111.133 of this title (relating to Testing Requirements); §111.135 of this title (relating to Control Requirements for Surfaces with Coatings Containing Lead); and §111.137 of this title (relating to Control Requirements for Surfaces with Coatings Containing Less Than 1.0% Lead).(c) Any alternate control method approved in advance by the executive director or a designated representative of TACB may be exempted from §111.135 of this title (relating to Control Requirements for Surfaces with Coatings Containing Lead) and §111.137 of this title (relating to Control Requirements for Surfaces with Coatings Containing Less Than 1.0% Lead). An exemption may be revoked by TACB at any time if the blasting project is causing nuisance conditions or a violation of any air quality standard.</content><note type="source"><p>Source Note: The provisions of this §111.139 adopted to be effective November 1, 1991, 16 TexReg 5833.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.141"><num value="111.141">§111.141</num><heading>Geographic Areas of Application and Date of Compliance</heading><content>This section, §111.143 of this title (relating to Materials Handling), §111.145 of this title (relating to Construction and Demolition), §111.147 of this title (relating to Roads, Streets, and Alleys), and §111.149 of this title (relating to Parking Lots) shall apply to the following areas: the City of El Paso, including the Fort Bliss Military Reservation except for training areas for tactical training, maneuvering, air support, and such other and further uses that are not inconsistent therewith, including access to and from said areas, unless otherwise specified; that portion of Harris County inside the loop formed by Beltway 8; and that area of Nueces County outlined in the Group II State Implementation Plan for Inhalable Particulate Matter adopted by the Texas Air Control Board on May 13, 1988. Compliance with these sections shall be as soon as practicable, but no later than December 31, 1991, except as follows: compliance on the Fort Bliss Military Reservation and compliance with §111.145(3) of this title; the paving requirements of §111.147(1) of this title; and the street sweeping requirements of §111.147(2) of this title shall be as soon as practicable, but no later than December 10, 1993.</content><note type="source"><p>Source Note: The provisions of this §111.141 adopted to be effective July 18, 1989, 14 TexReg 3293; amended to be effective February 12, 1992, 17 TexReg 691.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.143"><num value="111.143">§111.143</num><heading>Materials Handling</heading><content>No person may cause, suffer, allow, or permit any material, except for abrasive material for snow and ice control, to be handled, transported, or stored without taking at least the following precautions to achieve maximum control of dust emissions to the extent practicable:(1) application of water or suitable chemicals or some other covering on materials stockpiles and other surfaces which can create airborne dusts;(2) installation, maintenance, and proper use of hoods, fans, and filters to enclose, collect and clean the emissions of dusty materials; or(3) application of water or suitable chemicals, or complete covering of materials contained in open-bodied trucks, trailers, or railroad cars transporting such materials which can create airborne particulate matter in areas where the general public has access.(A) Suitable wetting may be used as an alternative to covering in all areas except the City of El Paso.(B) Complete covering, at a minimum, is required in the City of El Paso.</content><note type="source"><p>Source Note: The provisions of this §111.143 adopted to be effective July 18, 1989, 14 TexReg 3293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.145"><num value="111.145">§111.145</num><heading>Construction and Demolition</heading><content>For the purpose of this section, the following restrictions apply if the area of land affected by the listed activities is more than one acre in size, except for the City of El Paso, where restrictions shall apply regardless of the size of the area of land affected. No person may cause, suffer, allow, or permit a structure, road, street, alley, or parking area to be constructed, altered, repaired, or demolished, or land to be cleared without taking at least the following precautions to achieve control of dust emissions:(1) use of water or of suitable oil or chemicals for control of dust in the demolition of structures, in construction operations, in work performed on a road, street, alley, or parking area, or in the clearing of land;(2) use of adequate methods such as wet-sandblasting and enclosure of work areas to prevent airborne particulate matter during sandblasting of structures or other similar operations;(3) application of asphalt, other paving materials, water, suitable oil, or chemicals on construction and/or demolition site access roads located in the City of El Paso.</content><note type="source"><p>Source Note: The provisions of this §111.145 adopted to be effective July 18, 1989, 14 TexReg 3293; amended to be effective February 12, 1992, 17 TexReg 691.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.147"><num value="111.147">§111.147</num><heading>Roads, Streets, and Alleys</heading><content>No person may cause, suffer, allow, or permit any public, industrial, commercial, or private road, street, or alley to be used without taking at least the following precautions to achieve control of dust emissions:(1) application of asphalt, water, or suitable oil or chemicals on the following unpaved surfaces, except in the City of El Paso and the Fort Bliss Military Reservation, except as noted in §111.141 of this title (relating to Geographic Areas of Application and Date of Compliance), where the use of paving materials is the only acceptable method of dust control, unless otherwise specified:(A) industrial facility roadways--all major in-plant roads and all truck or other heavy-duty vehicle pathways. Major in-plant roads shall be defined as those which are designed to accommodate two-way traffic and are at least 30 feet wide at at least one point, measuring the distance from the edge of the undisturbed earth on either side of the established roadway. The executive director, with the concurrence of the United States Environmental Protection Agency, may grant a waiver from the requirement to pave an industrial facility roadway if the owner of the roadway demonstrates that the cost of paving is economically unreasonable compared to other methods of dust control specified in this paragraph;(B) public thoroughfares--all roads and streets to which the public has general access;(C) commercial roads--all roads that serve as access for more than 50 employees or as access to more than 10 heavy-duty truck parking spaces;(D) residential roads--all roads that serve as access for more than 20 residence and/or apartment units;(E) alleys--in the City of El Paso, alleys must meet the following requirements:(i) all new alleys must be paved;(ii) unpaved alleys may not be used for residential garbage and recycling collection; and(iii) reclaimed asphalt pavement (RAP) may be used as an alternate means of particulate matter control for alleys; and(F) levee roads--in the City of El Paso, all levee roads and access to such roads must be controlled with the application of asphalt, or suitable oil or chemicals;(2) removal from public thoroughfares, as necessary, of soil or other materials, except for sand applied for the specific purpose of snow or ice control. In the City of El Paso, removal of soil must be by mechanical sweepers or their equivalent at the rate of three times per year for all public thoroughfares within the city limits and four times per week or as necessary for public thoroughfares within the central business district. For the purpose of this section, the central business district is defined as that area bordered by Loop 375 to the south, Santa Fe Street to the west, Missouri Street to the north, and Kansas Street to the east. The City of El Paso shall spot clean dirty roadways, and shall maintain street sweeping records for two years. Sand applied for the specific purpose of snow or ice control must be removed as soon as such control is no longer necessary.</content><note type="source"><p>Source Note: The provisions of this §111.147 adopted to be effective July 18, 1989, 14 TexReg 3293; amended to be effective February 12, 1992, 17 TexReg 691; amended to be effective February 16, 2012, 37 TexReg 704.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.149"><num value="111.149">§111.149</num><heading>Parking Lots</heading><content>(a) No person may allow any vehicular parking surface having more than five parking spaces to be used unless dust is controlled by the appropriate application of asphalt, water, or suitable oil or chemicals.(b) In the City of El Paso, parking surfaces with more than five parking spaces shall be paved or uniformly covered with gravel. This provision shall not apply to temporary parking lots defined at lots used for less than one month, after which access is prohibited. Such temporary lots shall be required to apply water or suitable oil or chemical. Lots with more than 100 parking spaces shall be paved or covered by an equivalent method determined by the executive director. An equivalent method shall not include the utilization of waste materials from industrial processes.(c) Parking surfaces having five spaces or less and parking surfaces at a property designed for and used exclusively as a private residence housing not more than three families are exempt from these requirements.</content><note type="source"><p>Source Note: The provisions of this §111.149 adopted to be effective July 18, 1989, 14 TexReg 3293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.151"><num value="111.151">§111.151</num><heading>Allowable Emissions Limits</heading><content>(a) No person may cause, suffer, allow, or permit emissions of particulate matter from any source to exceed the allowable rates specified in Table 1 as follows, except as provided by §111.153 of this title (relating to Emissions Limits for Steam Generators). (b) If a source has an effective stack height less than the standard effective stack height as determined from Table 2 as follows, the allowable emission level must be reduced by multiplying it by:Attached Graphic(c) Effective stack height shall be calculated by the following equation:Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §111.151 adopted to be effective July 18, 1989, 14 TexReg 3296.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.153"><num value="111.153">§111.153</num><heading>Emissions Limits for Steam Generators</heading><content>(a) Section 111.151 of this title (relating to Allowable Emissions Limits) shall not apply to any oil or gas fuel-fired steam generator with a heat input greater than 2,500 million British thermal units (Btu) per hour or any solid fossil fuel-fired steam generator.(b) No person may cause, suffer, allow, or permit emissions of particulate matter from any solid fossil fuel-fired steam generator to exceed 0.3 pound of total suspended particulate per million Btu heat input, averaged over a two-hour period.(c) No person may cause, suffer, allow, or permit emissions of particulate matter from any oil or gas fuel-fired steam generator with a heat input greater than 2,500 million Btu per hour to exceed 0.1 pound of total suspended particulate per million Btu input averaged over a two-hour period.</content><note type="source"><p>Source Note: The provisions of this §111.153 adopted to be effective July 18, 1989, 14 TexReg 3296.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.171"><num value="111.171">§111.171</num><heading>Emissions Limits Based on Process Weight Method</heading><content>No person affected by the Texas Clean Air Act, §3.10(e), may cause, suffer, allow, or permit emissions of particulate matter from any or all sources associated with a specific process to exceed the allowable levels specified in Table 3 as follows, except as provided by §111.173 of this title (relating to Emissions Limits Based on Alternate Method). Any affected person who does not request an alternate method and notify the executive director in writing shall be regulated by the process weight method.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §111.171 adopted to be effective July 18, 1989, 14 TexReg 3296.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.173"><num value="111.173">§111.173</num><heading>Emissions Limits Based on Alternate Method</heading><content>Any person affected by the Texas Clean Air Act, §3.10(e), who does not wish to be regulated by the process weight method may request an alternate method of regulation which the executive director finds will provide equivalent emission control efficiency to §111.171 of this title (relating to Emissions Limits Based on Process Weight Method).</content><note type="source"><p>Source Note: The provisions of this §111.173 adopted to be effective July 18, 1989, 14 TexReg 3296.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.175"><num value="111.175">§111.175</num><heading>Exemptions</heading><content>Any person affected by the Texas Clean Air Act, §3.10(e), shall be exempt from the following: §111.111 of this title (relating to Requirements for Specified Sources), §§111.141, 111.143, 111.145, 111.147, and 111.149 of this title (relating to Geographic Areas of Application and Date of Compliance; Materials Handling; Construction and Demolition; Roads, Streets, and Alleys; and Parking Lots), and §§111.151, 111.153, and 111.155 of this title (relating to Allowable Emissions Limits; Emissions Limits for Steam Generators; and Ground Level Concentrations). All other provisions of this title shall apply.</content><note type="source"><p>Source Note: The provisions of this §111.175 adopted to be effective July 18, 1989, 14 TexReg 3296.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.181"><num value="111.181">§111.181</num><heading>Exemption Policy</heading><content>All portable facilities and transient operations, such as portable rock crushers, but excluding portable hot-mix asphaltic concrete facilities, engaged in public work projects in any county except Dallas, El Paso, or Harris are exempt from the requirements of §111.111 and §111.113 of this title (relating to Requirements for Specified Sources and Alternate Opacity Limitations) and §§111.151, 111.153, and 111.155 of this title (relating to Allowable Emissions Limits; Emissions Limits for Steam Generators; and Ground Level Concentrations) if the conditions of §111.183 of this title (relating to Requirements for Exemption) are met.</content><note type="source"><p>Source Note: The provisions of this §111.181 adopted to be effective July 18, 1989, 14 TexReg 3297.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scA/s111.183"><num value="111.183">§111.183</num><heading>Requirements for Exemption</heading><content>(a) The facility shall be located at least one mile outside the nearest corporate limits of any city or town.(b) The facility shall be located at least one mile from any recreational area or any occupied building other than that located on the same property as the facility.(c) The facility shall be equipped with cyclones, or wet scrubbers, or water sprays at the material transfer points open to the atmosphere, or other equipment or systems approved by the executive director, properly installed, in good working order, and in operation.(d) The facility shall not operate on the same property for a period of more than six months.(e) The emissions from the facility shall not create a nuisance.</content><note type="source"><p>Source Note: The provisions of this §111.183 adopted to be effective July 18, 1989, 14 TexReg 3297.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c111/scB"><num value="B">SUBCHAPTER B</num><heading>OUTDOOR BURNING</heading><section identifier="/us/state/tx/tac/t30/p1/c111/scB/s111.201"><num value="111.201">§111.201</num><heading>General Prohibition</heading><content>No person may cause, suffer, allow, or permit any outdoor burning within the State of Texas, except as provided by this subchapter or by orders or permits of the commission. Outdoor disposal or deposition of any material capable of igniting spontaneously, with the exception of the storage of solid fossil fuels, shall not be allowed without written permission of the executive director. The term "executive director," as defined in Chapter 3 of this title (relating to Definitions), includes authorized staff representatives.</content><note type="source"><p>Source Note: The provisions of this §111.201 adopted to be effective September 16, 1996, 21 TexReg 8509.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scB/s111.203"><num value="111.203">§111.203</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Texas Commission on Environmental Quality (commission), the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms that are defined by the TCAA, the following terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.(1) Certified and Insured Prescribed Burn Manager--A person with ultimate authority and responsibility for a prescribed burn, who has been certified by the Prescribed Burning Board of the Texas Department of Agriculture. The certification issued by the Prescribed Burning Board must be considered effective, and to have met the certification requirements found in 4 TAC Chapter 226 (relating to Requirements for Certification by the Board), at the time the prescribed burn is conducted.(2) Extinguished--The absence of any visible flames, glowing coals, or smoke.(3) Landclearing operation--The uprooting, cutting, or clearing of vegetation in connection with conversion for the construction of buildings, rights-of-way, residential, commercial, or industrial development, or the clearing of vegetation to enhance property value, access, or production. It does not include the maintenance burning of on-site property wastes such as fallen limbs, branches, or leaves, or other wastes from routine property clean-up activities, nor does it include prescribed burning or burning following clearing for ecological restoration.(4) Neighborhood--A platted subdivision or property contiguous to and within 300 feet of a platted subdivision.(5) Practical alternative--An economically, technologically, ecologically, and logistically viable option.(6) Prescribed burn--The controlled application of fire to naturally occurring or naturalized vegetative fuels under specified environmental conditions and confined to a predetermined area, following appropriate planning and precautionary measures.(7) Refuse--Garbage, rubbish, paper, and other decayable and nondecayable waste, including vegetable matter and animal and fish carcasses.(8) Structure containing sensitive receptor(s)--A man-made structure utilized for human residence or business, the containment of livestock, or the housing of sensitive live vegetation. The term "man-made structure" does not include such things as range fences, roads, bridges, hunting blinds, or facilities used solely for the storage of hay or other livestock feeds. The term "sensitive live vegetation" is defined as vegetation that has potential to be damaged by smoke and heat, examples of which include, but are not limited to, nursery production, mushroom cultivation, pharmaceutical plant production, or laboratory experiments involving plants.(9) Sunrise/Sunset--Official sunrise/sunset as set forth in the United States Naval Observatory tables available from National Weather Service offices.(10) Wildland--Uncultivated land other than fallow, land minimally influenced by human activity, and land maintained for biodiversity, wildlife forage production, protective plant cover, or wildlife habitat.</content><note type="source"><p>Source Note: The provisions of this §111.203 adopted to be effective September 16, 1996, 21 TexReg 8509; amended to be effective July 19, 2006, 31 TexReg 5654; amended to be effective August 3, 2017, 42 TexReg 3799.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scB/s111.205"><num value="111.205">§111.205</num><heading>Exception for Fire Training</heading><content>(a) Outdoor burning shall be authorized for training fire-fighting personnel when requested in writing and when authorized either verbally or in writing by the local air pollution control agency. In the absence of such local entities, the appropriate commission regional office shall be notified. The burning shall be authorized if notice of denial from the local air pollution control agency, or commission regional office is not received within 10 working days after the date of postmark or the date of personal delivery of the request.(b) Facilities dedicated solely for fire-fighting training, at which training routinely will be conducted on a frequency of at least once per week, shall submit an annual written notification of intent to continue such training to the appropriate commission regional office and any local air pollution control agency.(c) Facilities dedicated solely for fire-fighting training, at which training is conducted less than weekly, shall provide an annual written notification of intent, with a telephone or electronic facsimile notice 24 hours in advance of any scheduled training session. No more than one such notification is required for multiple training sessions scheduled within any one-week period, provided the initial telephone/facsimile notice includes all such sessions. Both the written and telephone notifications shall be submitted to the appropriate commission regional office and any local air pollution control agency.(d) Authorization to conduct outdoor burning under this provision may be revoked by the executive director if the authorization is used to circumvent other prohibitions of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §111.205 adopted to be effective September 16, 1996, 21 TexReg 8509.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scB/s111.207"><num value="111.207">§111.207</num><heading>Exception for Fires Used for Recreation, Ceremony, Cooking, and Warmth</heading><content>Outdoor burning shall be authorized for fires used solely for recreational or ceremonial purposes, or in the noncommercial preparation of food, or used exclusively for the purpose of supplying warmth during cold weather. Such burning shall be subject to the requirements of §111.219(7) of this title (relating to General Requirements for Allowable Outdoor Burning).</content><note type="source"><p>Source Note: The provisions of this §111.207 adopted to be effective September 16, 1996, 21 TexReg 8509.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scB/s111.209"><num value="111.209">§111.209</num><heading>Exception for Disposal Fires</heading><content>Except as provided in Local Government Code, §352.082, outdoor burning is authorized for the following:(1) domestic waste burning at a property designed for and used exclusively as a private residence, housing not more than three families, when collection of domestic waste is not provided or authorized by the local governmental entity having jurisdiction, and when the waste is generated only from that property. Provision of waste collection refers to collection at the premises where the waste is generated. The term "domestic waste" is defined in §101.1 of this title (relating to Definitions). Wastes normally resulting from the function of life within a residence that can be burned include such things as kitchen garbage, untreated lumber, cardboard boxes, packaging (including plastics and rubber), clothing, grass, leaves, and branch trimmings. Examples of wastes not considered domestic waste that cannot be burned, include such things as tires, non-wood construction debris, furniture, carpet, electrical wire, and appliances;(2) diseased animal carcass burning when burning is the most effective means of controlling the spread of disease;(3) veterinarians in accordance with Texas Occupations Code, §801.361, Disposal of Animal Remains;(4) on-site burning of trees, brush, grass, leaves, branch trimmings, or other plant growth, by the owner of the property or any other person authorized by the owner, and when the material is generated only from that property:(A) in a county that is part of a designated nonattainment area or that contains any part of a municipality that extends into a designated nonattainment area; if the plant growth was generated as a result of right-of-way maintenance, landclearing operations, and maintenance along water canals when no practical alternative to burning exists. Such burning is subject to the requirements of §111.219 of this title (relating to General Requirements for Allowable Outdoor Burning). Commission notification or approval is not required; or(B) in a county that is not part of a designated nonattainment area and that does not contain any part of a municipality that extends into a designated nonattainment area; this provision includes, but is not limited to, the burning of plant growth generated as a result of right-of-way maintenance, landclearing operations, and maintenance along water canals. Such burning is subject to local ordinances that prohibit burning inside the corporate limits of a city or town and that are consistent with the Texas Clean Air Act, Chapter 382, Subchapter E, Authority of Local Governments, and the requirements of §111.219(3), (4), (6), and (7) of this title. Commission notification or approval is not required;(5) at a site designated for consolidated burning of waste generated from specific residential properties. A designated site must be located outside of a municipality and within a county with a population of less than 50,000. The owner of the designated site or the owner's authorized agent shall:(A) post at all entrances to the site a placard measuring a minimum of 48 inches in width and 24 inches in height and containing, at a minimum, the words "DESIGNATED BURN SITE - No burning of any material is allowed except for trees, brush, grass, leaves, branch trimmings, or other plant growth generated from specific residential properties for which this site is designated. All burning must be supervised by a fire department employee or a volunteer firefighter. For more information call {PHONE NUMBER OF OWNER OR AUTHORIZED AGENT}." The placard(s) must be clearly visible and legible at all times;(B) designate specific residential properties for consolidated burning at the designated site;(C) maintain a record of the designated residential properties. The record must contain the description of a platted subdivision and/or a list of each property address. The description must be made available to commission or local air pollution control agency staff within 48 hours, if requested;(D) ensure that all waste burned at the designated site consists of trees, brush, grass, leaves, branch trimmings, or other plant growth;(E) ensure that all such waste was generated at specific residential properties for which the site is designated; and(F) ensure that all burning at the designated site is directly supervised by an employee of a fire department who is part of the fire protection personnel, as defined by Texas Government Code, §419.021, and is acting in the scope of the person's employment, or a volunteer firefighter acting in the scope of the firefighter's volunteer duties. The fire department employee or volunteer firefighter shall notify the appropriate commission regional office with a telephone or electronic facsimile notice 24 hours in advance of any scheduled supervised burn. The commission shall provide the employee or volunteer firefighter with information on practical alternatives to burning. Commission approval is not required;(6) crop residue burning for agricultural management purposes when no practical alternative exists. Such burning shall be subject to the requirements of §111.219 of this title and structures containing sensitive receptors must not be negatively affected by the burn. When possible, notification of the intent to burn should be made to the appropriate commission regional office prior to the proposed burn. Commission notification or approval is not required. This section is not applicable to crop residue burning covered by an administrative order; and(7) brush, trees, and other plant growth causing a detrimental public health and safety condition burned by a county or municipal government at a site it owns upon receiving site and burn approval from the executive director. Such a burn can only be authorized when there is no practical alternative, and it may be done no more frequently than once every two months. Such burns cannot be conducted at municipal solid waste landfills unless authorized under §111.215 of this title (relating to Executive Director Approval of Otherwise Prohibited Outdoor Burning), and shall be subject to the requirements of §111.219 of this title.</content><note type="source"><p>Source Note: The provisions of this §111.209 adopted to be effective September 16, 1996, 21 TexReg 8509; amended to be effective June 12, 2002, 27 TexReg 4953; amended to be effective November 18, 2004, 29 TexReg 10515; amended to be effective July 19, 2006, 31 TexReg 5654; amended to be effective November 12, 2020, 45 TexReg 7998.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scB/s111.211"><num value="111.211">§111.211</num><heading>Exception for Prescribed Burn</heading><content>Outdoor burning shall be authorized for:(1) Prescribed burning for forest, range and wildland/wildlife management, and wildfire hazard mitigation purposes, with the exception of coastal salt-marsh management burning. Such burning shall be subject to the requirements of §111.219 of this title (relating to General Requirements for Allowable Outdoor Burning), and structures containing sensitive receptors must not be negatively affected by the burn. When possible, notification of intent to burn should be made to the appropriate commission regional office prior to the proposed burn. Commission notification or approval is not required.(2) Coastal salt-marsh management burning conducted in Aransas, Brazoria, Calhoun, Chambers, Galveston, Harris, Jackson, Jefferson, Kleberg, Matagorda, Nueces, Orange, Refugio, and San Patricio Counties. Coastal salt-marsh burning in these counties shall be subject to the following requirements:(A) All land on which burning is to be conducted shall be registered with the appropriate commission regional office using a United States Geological Survey map or equivalent upon which are identified significant points such as roads, canals, lakes, and streams, and the method by which access is made to the site. For large acreage, the map should be divided into manageable blocks with identification for each defined block. The information must be received for review at least 15 working days before the burning takes place.(B) Prior to any burning, notification, either verbal or written, must be made to, and authorization must be received from the appropriate commission regional office. Notification must identify the specific area and/or block to be burned, approximate start and end time, and a responsible party who can be contacted during the burn period.(C) Such burning shall be subject to the requirements of §111.219 of this title.</content><note type="source"><p>Source Note: The provisions of this §111.211 adopted to be effective September 16, 1996, 21 TexReg 8509; amended to be effective February 6, 2014, 39 TexReg 497.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scB/s111.213"><num value="111.213">§111.213</num><heading>Exception for Hydrocarbon Burning</heading><content>Outdoor burning shall be authorized for hydrocarbon burning from pipeline breaks and oil spills only upon proper notification as set forth in §101.6 of this title (relating to Notification Requirements for Major Upset), and if the executive director has determined that the burning is necessary to protect the public welfare. Sampling and monitoring may be required to determine and evaluate environmental impacts.</content><note type="source"><p>Source Note: The provisions of this §111.213 adopted to be effective September 16, 1996, 21 TexReg 8509.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scB/s111.215"><num value="111.215">§111.215</num><heading>Executive Director Approval of Otherwise Prohibited Outdoor Burning</heading><content>If not otherwise authorized by this chapter, outdoor burning may be authorized by written permission from the executive director if there is no practical alternative and if the burning will not cause or contribute to a nuisance, traffic hazard or to a violation of any federal or state primary or secondary ambient air standard. The executive director may specify procedures or methods to control or abate emissions from outdoor burning authorized pursuant to this rule. Authorization to burn may be revoked by the executive director at any time if the burning causes nuisance conditions, is not conducted in accordance with the specified conditions, violates any provision of an applicable permit, or causes a violation of any air quality standard.</content><note type="source"><p>Source Note: The provisions of this §111.215 adopted to be effective September 16, 1996, 21 TexReg 8509.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scB/s111.217"><num value="111.217">§111.217</num><heading>Requirements for Certified and Insured Prescribed Burn Managers</heading><content>Prescribed burning shall be authorized when conducted under the direction of a Certified and Insured Prescribed Burn Manager, as defined in §111.203 of this title (relating to Definitions), for forest, range and wildland/wildlife management and wildfire hazard mitigation purposes, with the exception of coastal salt-marsh management burning. When possible, notification of intent to burn should be made to the appropriate commission regional office prior to the proposed burn. Commission notification or approval is not required. Such burning shall be subject to the following requirements, and not the requirements in §111.219 of this title (relating to General Requirements for Allowable Outdoor Burning).(1) 4 TAC Chapter 227 (relating to Requirements for Certified and Insured Prescribed Burn Managers) and Chapter 228 (relating to Procedures for Certified and Insured Prescribed Burn Managers).(2) Prior to prescribed or controlled burning for forest management purposes, the Texas Forest Service shall be notified.(3) Burning must be outside the corporate limits of a city or town except where the incorporated city or town has enacted ordinances which permit burning consistent with the Texas Clean Air Act, Subchapter E, Authority of Local Governments.(4) Burning shall be commenced and conducted only when wind direction and other meteorological conditions are such that smoke and other pollutants will not cause adverse effects to any public road, landing strip, navigable water, or off-site structure containing sensitive receptor(s).(5) Burning shall be conducted in compliance with the following meteorological and timing considerations:(A) The initiation of burning shall commence no earlier than sunrise. Burning shall be completed on the same day not later than one hour before sunset, and shall be attended by a responsible party at all times during the active burn phase when the fire is progressing. In cases where residual fires and/or smoldering objects continue to emit smoke after this time, such areas shall be extinguished if the smoke from these areas has the potential to create a nuisance or traffic hazard condition. In no case shall the extent of the burn area be allowed to increase after this time.(B) Burning shall not be commenced when surface wind speed is predicted to be less than five miles per hour (mph) (four knots) or greater than 23 mph (20 knots) during the burn period.(C) Burning shall not be conducted during periods of actual or predicted persistent low-level atmospheric temperature inversions.(6) Electrical insulation, treated lumber, plastics, non-wood construction/demolition materials, heavy oils, asphaltic materials, potentially explosive materials, chemical wastes, and items containing natural or synthetic rubber must not be burned.</content><note type="source"><p>Source Note: The provisions of this §111.217 adopted to be effective August 3, 2017, 42 TexReg 3799.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scB/s111.219"><num value="111.219">§111.219</num><heading>General Requirements for Allowable Outdoor Burning</heading><content>Outdoor burning which is otherwise authorized shall also be subject to the following requirements when specified in any section of this subchapter.(1) Prior to prescribed or controlled burning for forest management purposes, the Texas Forest Service shall be notified.(2) Burning must be outside the corporate limits of a city or town except where the incorporated city or town has enacted ordinances which permit burning consistent with the Texas Clean Air Act, Subchapter E, Authority of Local Governments.(3) Burning shall be commenced and conducted only when wind direction and other meteorological conditions are such that smoke and other pollutants will not cause adverse effects to any public road, landing strip, navigable water, or off-site structure containing sensitive receptor(s).(4) If at any time the burning causes or may tend to cause smoke to blow onto or across a road or highway, it is the responsibility of the person initiating the burn to post flag-persons on affected roads.(5) Burning must be conducted downwind of or at least 300 feet (90 meters) from any structure containing sensitive receptors located on adjacent properties unless prior written approval is obtained from the adjacent occupant with possessory control.(6) Burning shall be conducted in compliance with the following meteorological and timing considerations:(A) The initiation of burning shall commence no earlier than one hour after sunrise. Burning shall be completed on the same day not later than one hour before sunset, and shall be attended by a responsible party at all times during the active burn phase when the fire is progressing. In cases where residual fires and/or smoldering objects continue to emit smoke after this time, such areas shall be extinguished if the smoke from these areas has the potential to create a nuisance or traffic hazard condition. In no case shall the extent of the burn area be allowed to increase after this time.(B) Burning shall not be commenced when surface wind speed is predicted to be less than six miles per hour (mph) (five knots) or greater than 23 mph (20 knots) during the burn period.(C) Burning shall not be conducted during periods of actual or predicted persistent low-level atmospheric temperature inversions.(7) Electrical insulation, treated lumber, plastics, non-wood construction/demolition materials, heavy oils, asphaltic materials, potentially explosive materials, chemical wastes, and items containing natural or synthetic rubber must not be burned.</content><note type="source"><p>Source Note: The provisions of this §111.219 adopted to be effective September 16, 1996, 21 TexReg 8509.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c111/scB/s111.221"><num value="111.221">§111.221</num><heading>Responsibility for Consequences of Outdoor Burning</heading><content>The authority to conduct outdoor burning under this regulation does not exempt or excuse any person responsible from the consequences, damages, or injuries resulting from the burning and does not exempt or excuse anyone from complying with all other applicable laws or ordinances, regulations, and orders of governmental entities having jurisdiction, even though the burning is otherwise conducted in compliance with this regulation.</content><note type="source"><p>Source Note: The provisions of this §111.221 adopted to be effective September 16, 1996, 21 TexReg 8509.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c112"><num value="112">CHAPTER 112</num><heading>CONTROL OF AIR POLLUTION FROM SULFUR COMPOUNDS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c112/scA"><num value="A">SUBCHAPTER A</num><heading>CONTROL OF SULPHUR DIOXIDE</heading><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.1"><num value="112.1">§112.1</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA), §382.003, or in the rules of the board, the terms used by the board have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Continuous emissions monitoring--Sampling, analyzing, and recording at least one measurement of sulfur dioxide concentration in each 15-minute period from the effluent of each affected process or the emission control system serving each affected process. (2) Effective stack height--A value in feet calculated by the following equation.Attached Graphic(3) In-stack concentration--The concentration of a pollutant inside the stack measured in parts per million by volume (ppmv) referenced at 0% stack gas oxygen on a dry basis averaged over a period of one hour with oxygen determined by the equation:Attached Graphic(4) Secondary metal recovery facility--A facility which recovers metals and alloys from new and used scrap and dross. It does not mean assembling, sorting, and breaking up scrap metal, without smelting and refining. (5) Short-stack reduction factor--The factor by which the allowable emission rate must be multiplied if the source has an effective stack height less than the standard effective stack height. The short-stack reduction factor is calculated by the following equation.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §112.1 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.2"><num value="112.2">§112.2</num><heading>Compliance, Reporting, and Recordkeeping</heading><content>(a) When requested under §101.8(a) of this title (relating to Sampling), a facility that is subject to the sulfur dioxide (SO2) limits of this chapter shall demonstrate compliance by Method 6, 6A, or 6C as described in 40 Code of Federal Regulations (CFR), Part 60, Appendix A. Any person affected by this subsection may request approval by the executive director of the Texas Air Control Board (TACB) and by the United States Environmental Protection Agency of alternative test methods, including sampling and analysis of fuel or raw material feedstock, as described in Method 19 of 40 CFR, Part 60, Appendix A, to determine compliance.(b) A facility that is required to demonstrate compliance with SO2 emission limits under this chapter shall report the results so obtained, when requested, to the appropriate regional office of TACB within a reasonable time specified by and on forms furnished by the executive director.(c) A facility that is required to demonstrate compliance with SO2 emission limits under this chapter shall maintain records on site of any SO2 emissions data, fuel sampling data, or sampling data of fuel oil used as raw material for two years. These records shall be available for inspection by federal, state, or local air pollution control agencies.</content><note type="source"><p>Source Note: The provisions of this §112.2 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.3"><num value="112.3">§112.3</num><heading>Net Ground Level Concentrations</heading><content>(a) Except as specified in subsections (b) or (c) of this section or §112.4 of this title (relating to Net Ground Level Concentration--Exemption Conditions), no person in the State of Texas may cause, suffer, allow, or permit emissions of sulfur dioxide (SO2) from a source or sources operated on a property or multiple sources operated on contiguous properties to exceed a net ground level concentration of 0.4 part per million by volume (ppmv) averaged over any 30-minute period.(b) No person in Galveston or Harris County may cause, suffer, allow, or permit emissions of SO2from a source or sources operated on a property or multiple sources operated on contiguous properties to exceed a net ground level concentration of 0.28 ppmv averaged over any 30-minute period.(c) No person in Jefferson or Orange County may cause, suffer, allow, or permit emissions of SO2from a source or sources operated on a property or multiple sources operated on contiguous properties to exceed a net ground level concentration of 0.32 ppmv averaged over any 30-minute period.</content><note type="source"><p>Source Note: The provisions of this §112.3 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.4"><num value="112.4">§112.4</num><heading>Net Ground Level Concentration--Exemption Conditions</heading><content>The executive director, in consideration of a request from an affected party, may find that, except in El Paso County, a property or contiguous properties are exempt from the requirements of §112.3(a) of this title (relating to Net Ground Level Concentrations), if the new or modified emission source is constructed and operated on such property or properties under all the following conditions.(1) The construction and operation of the new or modified emission source meets all applicable federal new source performance standards and uses best available control technology, with consideration to the technical practicability and economic reasonableness of reducing or eliminating the emissions from the facility.(2) The permit application contains a demonstration using appropriate diffusion modeling, as approved by the United States Environmental Protection Agency and the Texas Air Control Board Modeling Division, that the construction and operation of the new or modified emission source does not cause or contribute to a condition such that either the primary or the secondary sulfur dioxide national ambient air quality standards are exceeded in the area.(3) Those sources proposed for an exempt property and those sources existing on an exempt property prior to the effective date of this section shall be in compliance with this section or with an area control plan obtained pursuant to §112.19 of this title (relating to Application for Area Control Plan).</content><note type="source"><p>Source Note: The provisions of this §112.4 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.5"><num value="112.5">§112.5</num><heading>Allowable Emission Rates--Sulfuric Acid Plant Burning Elemental Sulfur</heading><content>(a) No person may cause, suffer, allow, or permit emissions of sulfur dioxide (SO2) from any sulfuric acid plant burning elemental sulfur to exceed the emission limits specified by the equation:Attached Graphic(b) If a source has an effective stack height less than the standard effective stack height determined by the equation:Attached Graphic(c) Beginning September 30, 1994, sulfuric acid plants of greater than 300 tons per day production capacity, with production being expressed as 100% acid, and to which this section applies, shall be equipped with a continuous emissions monitoring system (CEMS) for SO 2. The CEMS shall be installed, calibrated, and operated as specified in 40 Code of Federal Regulations Part 51, Appendix P, hereby incorporated by reference.</content><note type="source"><p>Source Note: The provisions of this §112.5 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.6"><num value="112.6">§112.6</num><heading>Allowable Emission Rates--Sulfuric Acid Plant</heading><content>(a) Except as provided in §112.5 of this title (relating to Allowable Emission Rates--Sulfuric Acid Plant Burning Elemental Sulfur) and in §112.14 of this title (relating to Allowable Emission Rates--Nonferrous Smelter Processes), no person may cause, suffer, allow, or permit emissions of sulfur dioxide (SO2) from any sulfuric acid plant to exceed the emission limits specified by the equation:Attached Graphic(b) If a source has an effective stack height less than the standard effective stack height determined by the equation:Attached Graphic(c) Beginning September 30, 1994, sulfuric acid plants of greater than 300 tons per day production capacity, with production expressed as 100% acid, and to which this section applies, shall be equipped with a continuous emissions monitoring system (CEMS) for SO2. The CEMS shall be installed, calibrated, and operated as specified in 40 Code of Federal Regulations Part 51, Appendix P, hereby incorporated by reference.</content><note type="source"><p>Source Note: The provisions of this §112.6 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.7"><num value="112.7">§112.7</num><heading>Allowable Emission Rates--Sulfur Recovery Plant</heading><content>(a) No person may cause, suffer, allow, or permit emissions of sulfur dioxide (SO[sub]2[/sub]) from any sulfur recovery plant to exceed the emission limits specified for stack effluent flow rates less than or equal to 4,000 standard cubic feet per minute (scfm) as determined by the equation:Attached Graphic(b) If a source has an effective stack height less than the standard effective stack height determined for stack effluent rates less than or equal to 4,000 scfm by the equation:Attached Graphicthen, the allowable emission limit in subsection (a) of this section must be reduced by multiplying it by the short-stack reduction factor.</content><note type="source"><p>Source Note: The provisions of this §112.7 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.8"><num value="112.8">§112.8</num><heading>Allowable Emission Rates from Solid Fossil Fuel-Fired Steam Generators</heading><content>(a) Except as provided in subsection (b) of this section, no person may cause, suffer, allow, or permit emissions of sulfur dioxide (SO2) from any solid fossil fuel-fired steam generator to exceed 3.0 pounds per million Btu (MMBtu) heat input averaged over a three-hour period.(b) No person may cause, suffer, allow, or permit emissions of SO2 from any solid fossil fuel-fired steam generator located in Milam County, which began operation prior to January 1, 1955, to exceed 4.0 pounds per MMBtu heat input averaged over a three-hour period.(c) Except as provided in subsection (d) of this section, beginning September 30, 1994, solid fossil fuel-fired steam generators of greater than 250 MMBtu heat input per hour which are equipped with SO2 control equipment shall be equipped with a continuous emissions monitoring system (CEMS) for SO2. The CEMS shall be installed, calibrated, and operated as specified in 40 Code of Federal Regulations Part 51, Appendix P, hereby incorporated by reference. (d) In lieu of the requirements of subsection (c) of this section, beginning September 30, 1994, sources subject to the Federal Clean Air Act, §412(c) as amended in 1990 shall meet the requirements of §412(c) and the regulations promulgated thereunder.</content><note type="source"><p>Source Note: The provisions of this §112.8 adopted to be effective October 23, 1992, 17 TexReg 7085; amended to be effective July 16, 1997, 22 TexReg 6450.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.9"><num value="112.9">§112.9</num><heading>Allowable Emission Rates--Combustion of Liquid Fuel</heading><content>(a) No person may cause, suffer, allow, or permit emissions of sulfur dioxide (SO2) from any liquid fuel-fired steam generator, furnace, or heater to exceed 440 parts per million by volume (ppmv) at actual stack conditions and averaged over a three-hour period.(b) If a source has an effective stack height less than the standard effective stack height as determined from the equation: Attached Graphicthen, the allowable emission concentration must be reduced by multiplying it by the short-stack reduction factor.(c) No later than July 31, 1993, no person in Harris or Jefferson County may cause, suffer, allow, or permit the use of liquid fuel for combustion from any stationary liquid fuel-fired steam generator, furnace, or heater with a sulfur content greater than 0.3% by weight or emissions of SO2 from any liquid fuel-fired steam generator, furnace, or heater to exceed 150 ppmv, as calculated based on 20% excess air and as averaged over a three-hour period. The requirements of this subsection are not intended to apply to sulfuric acid plants.(d) Except as provided in subsection (e) of this section, beginning September 30, 1994, liquid fossil fuel-fired steam generators of greater than 250 MMBtu heat input per hour which are equipped with SO2 control equipment shall be equipped with a continuous emissions monitoring system (CEMS) for SO2. The CEMS shall be installed, calibrated, and operated as specified in 40 Code of Federal Regulations Part 51, Appendix P, hereby incorporated by reference. (e) In lieu of the requirements of subsection (d) of this section, beginning September 30, 1994, sources subject to the Federal Clean Air Act, §412(c), as amended in 1990 shall meet the requirements of §412(c) and the regulations promulgated thereunder.</content><note type="source"><p>Source Note: The provisions of this §112.9 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.14"><num value="112.14">§112.14</num><heading>Allowable Emission Rates--Nonferrous Smelter Processes</heading><content>(a) This section is applicable to all processes in nonferrous smelters, including, but not limited to, roasters, smelting furnaces, converters, sintering machines, blast furnaces, fuming furnaces, retorts, slag treatment plants, and sulfuric acid plants.(b) No person may cause, suffer, allow, or permit emissions of sulfur dioxide (SO2) to the atmosphere from any process as specified in this section to exceed the applicable concentration of SO2 as follows.Attached Graphic(c) Each stack or emission point in a primary smelter or secondary metal recovery facility shall have a standard effective stack height not less than that determined by the equation:Attached Graphic(d) If a stack or emission point has an effective stack height less than the standard effective stack height as determined in subsection (c) of this section, the allowable concentration of SO2 must be reduced by multiplying it by the short-stack reduction factor.(e) The owner or operator of a nonferrous smelter shall utilize best engineering techniques to capture and vent fugitive SO2 emissions through a stack or stacks. Such techniques shall include, but not be limited to, the following:(1) operating and maintaining all ducts, flues, and stacks in a leak-free condition;(2) operating and maintaining all process equipment and gas collection systems in such a fashion that leakage of SO2 gases will be prevented to the maximum extent possible;(3) collecting SO2 emissions through the tallest stack or stacks serving the facility, whenever possible, using gas collection systems and/or ducting.(f) The owner or operator of any primary smelter subject to the provisions of this section shall install, calibrate, maintain, and operate a measurement system or systems approved by the executive director for continuously monitoring SO2 emissions in the effluent of each process subject to subsection (a) of this section. The executive director shall not require continuous monitoring for sources emitting less than 25 tons per year of SO2 into the atmosphere.</content><note type="source"><p>Source Note: The provisions of this §112.14 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.15"><num value="112.15">§112.15</num><heading>Temporary Fuel Shortage Plan Filing Requirements</heading><content>(a) Any person may file with the Texas Air Control Board (TACB) a temporary fuel shortage control plan if unable to comply with §112.3 of this title (relating to Net Ground Level Concentration), §112.9 of this title (relating to Allowable Emission Rates--Combustion of Liquid Fuel), or with any permit requirements, other than those required under the Federal Clean Air Act, §111, which limit sulfur dioxide emissions from any combustion unit solely because of the nonavailability of low sulfur fuels. The plan shall include all of the following:(1) evidence of the nonavailability of low sulfur fuels, including, but not limited to, statements from fuel suppliers which address the availability and prices of lower sulfur fuels and the expected duration of any period of nonavailability of particular fuels. The person filing the plan must annually request and receive an extension from the executive director or the plan will automatically expire one year after receipt of the plan by TACB;(2) a statement that all emissions inventory data required by TACB are complete, accurate, and on file with TACB;(3) data for each source within the entire plant that uses the higher sulfur fuel. The data shall include the type, quantity, and sulfur content of all the fuels to be burned, excess air to be used, and the associated sulfur abatement procedure to be used, if any;(4) any other information as specified by the executive director. The executive director may require more frequent and extensive monitoring for persons affected by this section than would normally be required for persons affected by §112.3 of this title (relating to Net Ground Level Concentration) and §112.9 of this title (relating to Allowable Emission Rates--Combustion of Liquid Fuel).(b) The executive director may make an independent determination of a need to operate under the temporary fuel shortage control plan based on the evidence of the nonavailability of low sulfur fuel. This determination/approval shall be effective on the date specified in the executive director's written notification of such determination.(c) The requirements of this section and §§112.16, 112.17, and 112.18 of this title (relating to Temporary Fuel Shortage Plan Operating Requirements; Temporary Fuel Shortage Plan Notification Procedures; and Temporary Fuel Shortage Plan Reporting Requirements) shall also apply to shortages of low sulfur fuel oils where those oils are used as raw material in the production of a saleable product.</content><note type="source"><p>Source Note: The provisions of this §112.15 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.16"><num value="112.16">§112.16</num><heading>Temporary Fuel Shortage Plan Operating Requirements</heading><content>(a) Following the approval of a temporary fuel shortage plan filed pursuant to §112.15 of this title (relating to Temporary Fuel Shortage Plan Filing Requirements), the provisions of a plan will govern the operation of the source with regard to emissions of sulfur dioxide (SO2) during the periods of low sulfur fuel shortages.(1) During operation under an approved fuel shortage plan, the source shall continue to comply with the following:(A) permit conditions required under the Federal Clean Air Act (FCAA), §111;(B) the national ambient air quality standard (NAAQS) for SO2 or an SO2 increment for prevention of significant deterioration (PSD) of air quality;(C) §112.17 of this title (relating to Temporary Fuel Shortage Plan Notification Procedures). (2) During operation under an approved fuel shortage plan, the source will be exempt from the following:(A) §112.3 of this title (relating to Net Ground Level Concentrations);(B) §112.9 of this title (relating to Allowable Emission Rates--Combustion of Liquid Fuel); (C) existing permit conditions regulating emissions of SO2, except as specified in paragraph (1)(A) of this subsection.(b) An evaluation of the plan will be made by the applicant using appropriate diffusion modeling, as approved by the United States Environmental Protection Agency and the Texas Air Control Board Modeling Section, and following a signed modeling protocol agreement. If the plan cannot adequately demonstrate that the burning of higher sulfur fuels will not cause or contribute to a violation of any NAAQS and/or any PSD increment for SO2, then the person filing the plan shall request that the governor file a petition for relief under the FCAA, §110(f), with the president of the United States.</content><note type="source"><p>Source Note: The provisions of this §112.16 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.17"><num value="112.17">§112.17</num><heading>Temporary Fuel Shortage Plan Notification Procedures</heading><content>Any person who operates a source under a temporary fuel shortage control plan filed pursuant to §112.15 of this title (relating to Temporary Fuel Shortage Plan Filing Requirements) shall comply with the following notification procedures.(1) The executive director and the appropriate local air pollution control agency shall be notified in writing as soon as practicable of a fuel shortage or impending fuel shortage which causes or may cause an excessive emission that contravenes §112.3 of this title (relating to Net Ground Level Concentration) and §112.9 of this title (relating to Allowable Emission Rates--Combustion of Liquid Fuel), or any permit requirements. The notification shall include an estimate of the expected duration of the fuel shortage.(2) The executive director of the Texas Air Control Board and the appropriate local air pollution control agency shall be notified in writing as soon as practicable of the termination of a fuel shortage which would allow the resumption of operations in compliance with §112.3 of this title (relating to Net Ground Level Concentrations), §112.9 of this title (relating to Allowable Emission Rates--Combustion of Liquid Fuel), and any permit requirements.</content><note type="source"><p>Source Note: The provisions of this §112.17 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.18"><num value="112.18">§112.18</num><heading>Temporary Fuel Shortage Plan Reporting Requirements</heading><content>Any person who files a temporary fuel shortage control plan under §112.15 of this title (relating to Temporary Fuel Shortage Plan Filing Requirements), and operates a source under that plan pursuant to §112.16 of this title (relating to Temporary Fuel Shortage Plan Operating Requirements) and §112.17 of this title (relating to Temporary Fuel Shortage Plan Notification Procedures), must submit to the Texas Air Control Board, on a semiannual basis, a written report detailing the types, quantity, and sulfur content of fuels burned during the previous six months, the sources at which these fuels were burned, and the dates on which the higher sulfur fuels were burned.</content><note type="source"><p>Source Note: The provisions of this §112.18 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.19"><num value="112.19">§112.19</num><heading>Application for Area Control Plan</heading><content>The owner or operator of a source which emits sulfur dioxide (SO2) may petition the Texas Air Control Board for relief from the requirements of §112.3(a) of this title (relating to Net Ground Level Concentrations), by filing with the executive director an application for an area control plan. An application for an area control plan shall include, but is not limited to, a combination of evidence that best available control technology is being employed at all the affected sources, having due regard for the technical practicability and the economic reasonableness of reducing or eliminating the emissions of SO2 from the affected source, and an ambient air sampling system to record SO2 levels in the affected area. Any person who files an application for an area control plan shall demonstrate the capability of all sources in the affected area of the state to maintain all promulgated SO2 ambient air quality standards.</content><note type="source"><p>Source Note: The provisions of this §112.19 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.20"><num value="112.20">§112.20</num><heading>Exemption Procedure</heading><content>Upon recommendation by the executive director, the Texas Air Control Board may enter a board order exempting a source from the requirements of §112.3(a) of this title (relating to Net Ground Level Concentrations), if the owner/operator has filed an application pursuant to §112.19 of this title (relating to Application for Area Control Plan), contingent upon the continued compliance by the owner/operator with the remaining terms of the board order.</content><note type="source"><p>Source Note: The provisions of this §112.20 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scA/s112.21"><num value="112.21">§112.21</num><heading>Allowable Emission Rates under Area Control Plan</heading><content>No person or persons who have been issued a board order establishing an area control plan pursuant to §112.20 of this title (relating to Exemption Procedure) may cause or contribute to a condition in which the ambient air quality in the affected areas of the state will exceed 0.5 parts per million by volume of sulfur dioxide averaged over a one-hour period.</content><note type="source"><p>Source Note: The provisions of this §112.21 adopted to be effective October 23, 1992, 17 TexReg 7085.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c112/scB"><num value="B">SUBCHAPTER B</num><heading>CONTROL OF HYDROGEN SULFIDE</heading><section identifier="/us/state/tx/tac/t30/p1/c112/scB/s112.31"><num value="112.31">§112.31</num><heading>Allowable Emissions--Residential, Business, or Commercial Property</heading><content>No person may cause, suffer, allow, or permit emissions of hydrogen sulfide from a source or sources operated on a property or multiple sources operated on contiguous properties to exceed a net ground level concentration of 0.08 ppm averaged over any 30-minute period if the downwind concentration of hydrogen sulfide affects a property used for residential, business, or commercial purposes.</content><note type="source"><p>Source Note: The provisions of this §112.31 adopted to be effective January 1, 1976.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scB/s112.32"><num value="112.32">§112.32</num><heading>Allowable Emissions--Other Property</heading><content>No person may cause, suffer, allow, or permit emissions of hydrogen sulfide from a source or sources operated on a property or multiple sources operated on contiguous properties to exceed a net ground level concentration of 0.12 ppm averaged over any 30-minute period if the downwind concentration of hydrogen sulfide affects only property used for other than residential, recreational, business, or commercial purposes, such as industrial property and vacant tracts and range lands not normally occupied by people.</content><note type="source"><p>Source Note: The provisions of this §112.32 adopted to be effective January 1, 1976.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scB/s112.33"><num value="112.33">§112.33</num><heading>Calculation Methods</heading><content>(a) Applicability. Determination of the net ground level concentration shall be performed in accordance with the procedures outlined in this section for hydrogen sulfide and §112.32 of this title (relating to Allowable Emissions--Other Property) for sulfuric acid.(b) Determination of compliance with emission limits. In most cases downwind samples will suffice; however, if the sampled properties are suspected of being influenced by an upwind source of H2S, then both upwind and downwind samples will be taken. The concentration of H2S in the "downwind sample" less the concentration in the "upwind sample" shall be used in determining whether the emissions from the property comply with the requirements of §112.31 of this title (relating to Allowable Emissions--Residential, Business, or Commercial Property) and §112.32 of this title (relating to Allowable Emissions--Other Property). Calculated maximum allowable emission rates or ground level concentrations which are obtained by the method in subsection (b) of this section may be used in determining whether a property is in compliance with the emission limits specified.(c) Calculations of H2S concentrations from stack samples and measurements. The maximum allowable H2S emission rate which may be made from a stack on a property to comply with the emission limit set forth in §112.31 of this title (relating to Allowable Emissions--Residential, Business, or Commercial Property) and §112.32 of this title (relating to Allowable Emissions--Other Property) may be calculated by Sutton's equation which has been modified to consider the critical wind speed and to correspond to a 30-minute air sample. Additional credit on stack emissions can be obtained if the distance from the stack to the property line is greater than 30 stack heights. Those properties with greater than 30 stack heights to the property line should contact the executive director to obtain the proper correction factor.(1) For exit stack gas for temperatures of less than 125 degrees Fahrenheit. The following calculations shall be used for exit stack gas for temperatures of less than 125 degrees Fahrenheit.(A) The H2S ambient air level is 0.08 ppm for 30 minutes.Attached Graphic(B) The H2S ambient air level of 0.12 ppm for 30 minutes.Attached Graphic(C) To plot Graph II, assume a basic stack height of 100 feet and plotAttached GraphicAttached Graphic(2) For exit stack gas for temperatures greater than 125 degrees Fahrenheit. The following calculations shall be used for exit stack gas for temperatures greater than 125 degrees Fahrenheit:(A) the H2S ambient air level is 0.08 ppm for 30 minutes:Attached Graphic(B) the H2S ambient air level is 0.12 ppm for 30 minutes:Attached Graphic(C) to plot Graph III assume a basic stack height of 100 feet and an exit velocity of 20 feet/second. Let stack gas temperature vary with stack diameter:Attached Graphic(3) Examples. The following are examples of stack emission calculations.(A) Example 1. (Temperature of stack gas less than 125 degrees Fahrenheit.) How many pounds/hour of H2S can be discharged from a 200 foot stack having a four foot exit diameter (ID) and a 30 feet/second exit gas velocity? The stack gases temperature is 100 degrees Fahrenheit and the distance to property line is 3,000 feet. Emissions under §112.31 of this title (relating to Allowable Emissions--Residential, Business, or Commercial). Solution:(i) the ratio of stack diameter to 100 feet is 4/100 = 0.04; (ii) enter ordinate of Graph II with 0.04; go horizontally to intersection of 30 feet/second velocity curve. At the intersection read on the abscissa 24 pounds/hour on the scale set forth in §112.31 of this title (relating to Allowable Emissions--Residential, Business, or Commercial). This is the permitted value for a 100 foot stack;(iii) correct emissions for a 200 foot stack. Enter Graph I at 200 feet and obtain correction factor of 2.3. Thus the emissions become 24 x 2.3 = 55 pounds/hour.(iv) Note: less than 30 stack heights to property line--no credit.Attached Graphic(B) Example 2. (Temperature of stack gas greater than 125 degrees Fahrenheit.) How many pounds/hour of H2S can be discharged from a 200 foot stack having a four foot exit diameter (ID) and a 30 feet/second exit gas velocity? The temperature of the exit gases is 400 degrees Fahrenheit. Emissions under §112.31 of this title (relating to Allowable Emissions--Residential, Business, or Commercial). Solution:(i) enter ordinate of Graph III with 400; go horizontally to intersection of four foot diameter, read on the abscissa on the scale set forth in §112.31 of this title (relating to Allowable Emissions--Residential, Business, or Commercial) 36 pounds/hour emission. This is permitted value for 100 foot stack and exit velocity of 20 feet/second;(ii) correct for stack height of 200 feet. This is direct ratio and becomes 200'/100' = 2. The emission now becomes 36 x 2 = 72 pounds/hour; (iii) correct for stack exit velocity of 30 feet/second. This is a direct ratio and becomes 30/20 = 1.5; the allowed emission now becomes 72 x 1.5 = 108 pounds/hour.(iv) Note: less than 30 stack heights to property line--no credit.</content><note type="source"><p>Source Note: The provisions of this §112.33 adopted to be effective January 1, 1976.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scB/s112.34"><num value="112.34">§112.34</num><heading>Effective Date</heading><content>Sections 112.31-112.34 of this title (relating to Control of Hydrogen Sulfide) shall be in force immediately and shall supersede the previous Regulation III of the Texas Air Control Board which became effective on February 22, 1968, with regard to hydrogen sulfide.</content><note type="source"><p>Source Note: The provisions of this §112.34 adopted to be effective January 1, 1976.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c112/scC"><num value="C">SUBCHAPTER C</num><heading>CONTROL OF SULFURIC ACID</heading><section identifier="/us/state/tx/tac/t30/p1/c112/scC/s112.41"><num value="112.41">§112.41</num><heading>Allowable Emissions</heading><content>(a) No person may cause, suffer, allow, or permit emissions of sulfuric acid from a source or sources operated on a property or multiple sources operated on contiguous properties to exceed:(1) a net ground level concentration of 15 ug per cubic meter of air averaged over any 24-hour period;(2) a net ground level concentration of 50 ug per cubic meter of air averaged over a one-hour period of time more than once during any consecutive 24-hour period; or(3) one hundred ug per cubic meter of air maximum at any time.(b) No person may cause, suffer, allow, or permit emissions of sulfuric acid mist from any sulfuric acid or oleum facility that burns elemental sulfur, alkylation acid, hydrogen sulfide, organic sulfides, mercaptans, or acid sludge by the contact process to exceed 0.50 pound per ton (0.25 gram per kilogram) of 100% sulfuric acid produced.(1) Sulfuric acid mist emissions affected by this subsection shall be expressed as sulfuric acid and shall include liquid mist, sulfur trioxide, and sulfuric acid vapor as measured by Test Method 8 (40 Code of Federal Regulations 60, Appendix A) or an equivalent measurement method which has been approved by the executive director.(2) Sulfuric acid plants or facilities used exclusively as sulfur dioxide control systems, chamber process plants, acid concentrators, or oleum storage and transfer facilities are exempt from this section.</content><note type="source"><p>Source Note: The provisions of this §112.41 adopted to be effective January 1, 1976; amended to be effective July 14, 1989, 14 TexReg 3202.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scC/s112.43"><num value="112.43">§112.43</num><heading>Calculation Methods</heading><content>(a) Application. Determination of the net ground level concentration shall be performed in accordance with the procedures outlined in §112.33 of this title (relating to Calculation Methods) for hydrogen sulfide and this section for sulfuric acid (H2SO4 ).(b) Determination of compliance with emission limits. In most cases downwind samples will suffice; however, if the sampled properties are suspected of being influenced by an upwind source of H2SO4 , then both upwind and downwind samples will be taken. The concentration of H2SO4 in the downwind sample less the concentration in the upwind sample shall be used in determining whether the emissions from the property comply with the requirements of §112.41 of this title (relating to Allowable Emissions). Calculated maximum allowable emission rates or ground level concentrations which are obtained by the method in subsection (c) of this section may be used in determining whether a property is in compliance with the emission limits specified.(c) Calculations of H2SO4 concentrations from stack samples and measurements. The maximum allowable H2SO4 emission rate which may be made from a stack on property to comply with the emission limit set forth in §112.41 of this title (relating to Allowable Emissions) may be calculated by Sutton's equation which has been modified to consider the critical wind speed and to correspond to a one-hour sample. Additional credit on stack emissions can be obtained if the distance from the stack to the property line is greater than 30 stack heights. Those properties with greater than 30 stack heights to the property line should contact the executive director to obtain the proper correction factor.(1) For exit stack gas for temperatures of less than 125 degrees Fahrenheit. The following calculations shall be used for exit stack gas for temperatures of less than 125 degrees Fahrenheit.Attached Graphic(A) The H2SO4 ambient air level of 80 ug/M3 for one hour is used.Attached Graphic(B) To plot Graph IV, assume a basic stack height of 100 feet and plotAttached Graphicfor various stack diameters versus stack velocity.(2) For exit stack gas for temperature greater than 125 degrees Fahrenheit. The following calculations shall be used for exit stack gas for temperatures greater than 125 degrees Fahrenheit.(A) The H2SO4 ambient air level of 80 ug/M3 for one hour is used.Attached Graphic(B) To plot Graph V, assume a basic stack height of 100 feet and an exit velocity of 20 feet/second. Let stack gas temperature vary with stack diameter.(3) Examples. The following are examples of stack emission calculations.(A) Example 1. (Temperature of stack gas less than 125 degrees Fahrenheit.) How many pounds/hour of H 2SO4 can be discharged from a 200 foot stack having a four foot exit diameter (ID) and a 30 feet/second exit gas velocity? The temperature of the exit gases is 100 degrees Fahrenheit. Solution.(i) The ratio of stack diameter to 100 feet is 4/100 = 0.04.(ii) Enter ordinate of Graph IV with 0.04; go horizontally to intersection of 30 feet/second velocity curve. At this intersection read on the abscissa 17 pounds/hour. This is the permitted value for a 100 foot stack.(iii) Correct emissions for a 200 foot stack. Enter Graph I at 200 feet and obtain correction factor of 2.3. Thus the emissions become 17 x 2.3 = 39 pounds/hour.(B) Example 2. (Temperature of stack gas greater than 125 degrees Fahrenheit.) How many pounds/hour of H2 SO4 can be discharged from a 200 foot stack having a four foot exit diameter (ID) and a 30 feet/second exit gas velocity? The temperature of the exit gases is 400 degrees Fahrenheit. Solution.(i) Enter ordinate of Graph V with 400; go horizontally to intersection of four foot diameter and read on abscissa 26 pounds/hour emission. This is the permitted value for a 100 foot stack and exit velocity of 20 feet/second.(ii) Correct for stack height. Thus, 200/100 = 2. We now have 26 x 2 = 52 pounds/hour.(iii) Correct for stack exit velocity of 30 feet/second. This is a direct ratio and becomes 30/20 = 1.5. The emission now is 52 x 1.5 = 78 pounds/hour.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §112.43 adopted to be effective July 14, 1989, 14 TexReg 3203.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scC/s112.45"><num value="112.45">§112.45</num><heading>Inspection and Recordkeeping Requirements</heading><content>(a) The owner or operator of any sulfuric acid plant subject to the provisions of §112.41(b) of this title (relating to Emissions Limits) shall conduct a complete visual inspection of all applicable emission control devices at least once per calendar year to ensure physical integrity and proper operation of the control system.(b) The owner or operator of any sulfuric acid plant subject to the provisions of §112.41(b) of this title (relating to Emissions Limits) shall maintain the following records for two years and make available to authorized representatives of the Texas Air Control Board and/or local air pollution control agencies, upon request:(1) the average monthly sulfuric acid mist emissions calculated using the most recent stack test and expressed as pounds of sulfuric acid mist per ton of 100% sulfuric acid produced;(2) the results of annual inspections as required by subsection (a) of this section;(3) readings from a device for the continuous measurement of the pressure differential between the inlet and outlet gas streams of any fiber mist eliminator:(A) immediately following each annual inspection of the control device required by subsection (a) of this section and all other process start-ups in order to establish a reference pressure differential indicative of a properly functioning control device; and(B) at least once per calendar month in order to indicate the relative operating condition of the control device;(4) the emissions testing/or corrective actions performed in response to excessive variations in the observed pressure differential, to malfunctions detected during inspections of the control device, or to Texas Air Control Board requests.</content><note type="source"><p>Source Note: The provisions of this §112.45 adopted to be effective July 14, 1989, 14 TexReg 3202.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scC/s112.47"><num value="112.47">§112.47</num><heading>Compliance Schedules</heading><content>All facilities affected by §112.41(b) of this title (relating to Emissions Limits) shall be in compliance by July 31, 1990. Sulfuric acid plants not subject to 40 Code of Federal Regulations 60, Subpart H, shall submit by December 31, 1989, a demonstration of compliance or a compliance plan and schedule for achieving compliance, including legally enforceable increments of progress toward compliance as described at 40 Code of Federal Regulations 60.21(h).</content><note type="source"><p>Source Note: The provisions of this §112.47 adopted to be effective July 14, 1989, 14 TexReg 3202.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c112/scD"><num value="D">SUBCHAPTER D</num><heading>CONTROL OF TOTAL REDUCED SULFUR</heading><section identifier="/us/state/tx/tac/t30/p1/c112/scD/s112.51"><num value="112.51">§112.51</num><heading>Emissions Limits for TRS Compounds from Kraft Pulp Mills</heading><content>(a) The definitions promulgated at 40 Code of Federal Regulations 60.281 shall apply to all sections within this undesignated head and are hereby incorporated by reference.(b) Except as provided in §112.53 of this title (relating to Alternate Emissions Limitations), no person may cause, suffer, allow, or permit emissions of TRS from kraft pulp mills to exceed the following limits:(1) recovery furnaces:(A) old design (furnaces without membrane wall or welded wall construction or emission-control designed air systems): 20 parts per million (ppm) TRS, as hydrogen sulfide (H[sub]2[/sub]S) on a dry basis, corrected to 8.0% oxygen;(B) new design (furnaces with both membrane wall or welded wall construction and emission-control designed air systems: five ppm TRS, as (H[sub]2[/sub]S) on a dry basis, corrected to 8.0% oxygen;(C) cross recovery (furnaces with green liquor sulfidities in excess of 28% and liquor mixtures of more than seven weight percent of the total pulp solids from the neutral sulfite semichemical process): 25 ppm TRS, as H[sub]2[/sub]S on a dry basis, corrected to 10% oxygen;(2) digester system, multiple-effect evaporator system, or condensate stripper system: five ppm TRS, as H[sub]2[/sub]S on a dry basis, corrected to 8.0% oxygen, unless gases are burned in a combustion device, such as an incinerator or power boiler, for at least 0.5 second at 1,200 degrees Fahrenheit, a lime kiln, or a recovery furnace;(3) lime kiln: 20 ppm TRS, as H[sub]2[/sub]S on a dry basis, corrected to 10% oxygen; and(4) smelt dissolving tank: 0.033 lb/ton black liquor solids as H[sub]2[/sub]S (0.016 gram/kilogram black liquor solids as H[sub]2[/sub]S).(c) Compliance with the emissions limitations in subsection (b) of this section or §112.53 of this title (relating to Alternate Emissions Limitations) shall be determined by reference Methods 16, 16A, or 16B (40 Code of Federal Regulations 60, Appendix A) or an equivalent measurement method approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §112.51 adopted to be effective July 14, 1989, 14 TexReg 3203.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scD/s112.53"><num value="112.53">§112.53</num><heading>Alternate Emissions Limitations</heading><content>The owner or operator of any facility which is unable to meet the emission limitations of §112.51 of this title (relating to Emissions Limits for TRS Compounds from Kraft Pulp Mills) with technically available and economically reasonable control technology may apply to the executive director for approval of an alternate emission limit no later than July 31, 1990. The application may be approved if the applicant demonstrates that emissions resulting from the alternate emission limit will not result in an exceedance of any other emission limit prescribed by the Texas Air Control Board and will not cause or contribute to a nuisance as defined in §101.4 of this title (relating to Nuisance) and that:(1) the facility has failed to meet the applicable emission limitation during performance tests which were conducted with both the affected facility and the technically available and economically reasonable control equipment operating in a manner consistent with good engineering practice for minimizing the emissions; and(2) it is technically impractical or economically unreasonable for the facility to comply with the established emissions limits.</content><note type="source"><p>Source Note: The provisions of this §112.53 adopted to be effective July 14, 1989, 14 TexReg 3203.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scD/s112.55"><num value="112.55">§112.55</num><heading>Inspection Requirements</heading><content>The owner or operator of any kraft pulp mill subject to §112.51 of this title (relating to Emissions Limits for TRS Compounds from Kraft Pulp Mills) or §112.53 of this title (relating to Alternate Emissions Limitations) shall inspect all emission control devices and properly calibrate the monitoring devices required by §112.57 of this title (relating to Monitoring and Recordkeeping Requirements) at least once per calendar quarter to ensure compliance.</content><note type="source"><p>Source Note: The provisions of this §112.55 adopted to be effective July 14, 1989, 14 TexReg 3203.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scD/s112.57"><num value="112.57">§112.57</num><heading>Monitoring and Recordkeeping Requirements</heading><content>(a) The owner or operator of any kraft pulp mill subject to §112.51 of this title (relating to Emissions Limits for TRS Compounds from Kraft Pulp Mills) or §112.53 of this title (relating to Alternate Emissions Limitations) shall conduct continuous monitoring beginning July 31, 1991, in accordance with the Monitoring of Emissions and Operations promulgated by the Environmental Protection Agency at 40 Code of Federal Regulations 60.284, hereby incorporated by reference, except:(1) omit 40 Code of Federal Regulations 60.284(a)(1), relating to opacity monitoring;(2) omit 40 Code of Federal Regulations 60.284(d)(1), relating to reporting of recovery furnace excess TRS emissions and opacities;(3) omit 40 Code of Federal Regulations 60.284(d)(2), relating to reporting of lime kiln emissions;(4) omit 40 Code of Federal Regulations 60.284(e)(1)(ii), relating to opacity violations;(5) omit all references to the black liquor oxidation system and brown stock washing system;(6) substitute emission standards in 40 Code of Federal Regulations 60.284(d) with those stated in §112.51 of this title (relating to emissions Limits for TRS Compounds from Kraft Pulp Mills) or approved under §112.53 of this title (relating to Alternate Emissions Limitations); and(7) substitute the term "administrator" with "executive director."(b) Emissions data from continuous monitors required by subsection (a) of this section shall be processed in the following manner.(1) Data shall be calculated on a 12-hour average basis for the two consecutive periods of each operating day. Each 12-hour average shall be determined as the arithmetic mean of the appropriate 12 consecutive one-hour average TRS concentrations provided by each continuous monitoring system required under subsection (a) of this section.(2) Data indicating exceedances of emissions standards specified in §112.51(b) of this title (relating to Emissions Limits for TRS Compounds from Kraft Pulp Mills) shall not be considered excessive if the executive director determines that the facility is maintained and operated in a manner consistent with good air pollution control practices and the following conditions are met:(A) excess emissions are associated with startup, shutdown, or malfunction;(B) no more than 1.0% of the 12-hour averages in each calendar quarter exceed applicable limits for recovery furnaces; or(C) no more than 2.0% of the 12-hour average in each calendar quarter exceed 20 ppm for lime kilns.(c) The owner or operator of any kraft pulp mill affected by subsection (a) of this section shall maintain the following records for two years and shall make such records available to authorized representatives of the Texas Air Control Board and/or local air pollution control agencies upon request:(1) daily records of the continuous emissions monitoring data consisting of 12-hour averaged TRS emissions;(2) results of any stack tests conducted in accordance with §112.51(c) of this title (relating to Emissions Limits for TRS Compounds from Kraft Pulp Mills; and(3) results of quarterly inspections as required by §112.55 of this title (relating to Inspection Requirements).</content><note type="source"><p>Source Note: The provisions of this §112.57 adopted to be effective July 14, 1989, 14 TexReg 3203.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scD/s112.59"><num value="112.59">§112.59</num><heading>Compliance Schedules</heading><content>All facilities affected by §112.51 of this title (relating to Emissions Limits for TRS Compounds from Kraft Pulp Mills) shall be in compliance with applicable recovery furnace emissions limits by July 31, 1992, and all other applicable limits by July 31, 1991. Kraft pulp mills not subject to 40 Code of Federal Regulations 60, Subpart BB (New Source Performance Standards) shall submit, no later than July 31, 1990, a demonstration of continuous compliance with all applicable limits and requirements or a control plan and schedule for achieving compliance, including legally enforceable increments of progress toward compliance as described at 40 Code of Federal Regulations 60.21(h).</content><note type="source"><p>Source Note: The provisions of this §112.59 adopted to be effective July 14, 1989, 14 TexReg 3203.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c112/scE"><num value="E">SUBCHAPTER E</num><heading>REQUIREMENTS IN THE HOWARD COUNTY NONATTAINMENT AREA</heading><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.100"><num value="112.100">§112.100</num><heading>Applicability</heading><content>(a) The requirements in this division apply to affected sources at the Alon USA Big Spring Refinery, which is located at 200 Refinery Road in Big Spring, Texas in the Howard County sulfur dioxide nonattainment area. Affected sources will remain subject to this division regardless of ownership, operational control, or other documentation changes.(b) Affected sources are designated by the source name and emission point number (EPN) used in the site's New Source Review (NSR) permit as issued on the specified date. The specific affected sources are as follows:(1) FCCU ESP Stack (EPN 06ESPPCV) in NSR Permit 49154 dated March 12, 2012;(2) No. 1 SRU Incinerator Vent (EPN 69TGINC) in NSR Permit 80833 dated October 28, 2020;(3) No. 2 SRU Incinerator Vent (EPN 71TGINC) in NSR Permit 80833 dated October 28, 2020;(4) North East Flare (EPN 14NEASTFLR) in NSR Permit 80833 dated October 28, 2020;(5) Crude Flare (EPN 02CRUDEFLR) in NSR Permit 80833 dated October 28, 2020;(6) Reformer Flare (EPN 05REFMFLR) in NSR Permit 80833 dated October 28, 2020, and;(7) South Flare (EPN 16SOUTHFLR) in NSR Permit 80833 dated October 28, 2020.</content><note type="source"><p>Source Note: The provisions of this §112.100 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.101"><num value="112.101">§112.101</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382), or in §101.1 or §112.1 of this title (relating to Definitions, respectively), the terms in this division have the meanings commonly used in the field of air pollution control. The following meanings apply in this division, unless the context clearly indicates otherwise.(1) Block one-hour average--An hourly average of data, collected starting at the beginning of each clock hour of the day and continuing until the start of the next clock hour of the day (e.g., from 12:00:00 to 12:59:59).(2) Continuous Monitoring--Monitoring for which readings are recorded at least once every 15 minutes.(3) Howard County sulfur dioxide (SO2) nonattainment area--The portion of Howard County designated by the United States Environmental Protection Agency (EPA) as nonattainment for the 2010 SO2 National Ambient Air Quality Standard, 40 Code of Federal Regulations §81.344.(4) Pipeline quality natural gas--Natural gas containing no more than 0.25 grain of hydrogen sulfide and 5 grains of total sulfur per 100 dry standard cubic feet.</content><note type="source"><p>Source Note: The provisions of this §112.101 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.102"><num value="112.102">§112.102</num><heading>Control Requirements</heading><content>(a) The FCCU ESP Stack (EPN 06ESPPCV) emissions may not exceed 250.00 pounds per hour (lb/hr) sulfur dioxide (SO2) on a seven-day rolling average.(b) The North East Flare (EPN 14NEASTFLR), Crude Flare (EPN 02CRUDEFLR), Reformer Flare (EPN 05REFMFLR), and South Flare (EPN 16SOUTHFLR) may only combust pipeline quality natural gas or combust a refinery gas stream with a maximum sulfur content of 162 parts per million by volume as hydrogen sulfide determined hourly on a three-hour rolling average except as provided for in 40 Code of Federal Regulations §60.103a(h). (c) North East Flare (EPN 14NEASTFLR) emissions may not exceed 25.00 lb/hr SO2 during normal operations, and the following limits apply during authorized maintenance, startup, and shutdown (MSS) activities: (1) emissions may be equal to or greater than 25.01 lb/hr SO2 but less than 250.01 lb/hr SO2 in any hour within a calendar day for no more than four calendar days each year; (2) emissions may be equal to or greater than 250.01 lb/hr SO2 but less than 500.01 lb/hr SO2 in any hour within a calendar day for no more than six calendar days each year; (3) emissions may be greater than or equal to 500.01 lb/hr SO2 but less than 1,500.01 lb /hr SO2 in any hour within a calendar day for no more than two calendar days each year; (4) emissions above 1,500.00 lb/hr SO2 are prohibited; and(5) if SO2 emissions that correspond to more than one range specified in paragraphs (1) - (3) of this subsection occur during a calendar day, only the emissions in the highest range will be used in determining which emissions rate range specified in paragraphs (1) - (3) of this subsection applies to that calendar day. (d) Crude Flare (EPN 02CRUDEFLR) emissions may not exceed 51.80 lb/hr SO2 during normal operations, and the following limits apply during authorized MSS activities: (1) emissions may be equal to or greater than 51.81 lb/hr SO2 but less than 250.01 lb/hr SO2 in any hour within a calendar day for no more than 14 calendar days each year; (2) emissions may be equal to or greater than 250.01 lb/hr SO2 but less than 750.01 lb/hr SO2 in any hour within a calendar day for no more than three calendar days each year; (3) emissions above 750.00 lb/hr SO2 are prohibited; and(4) if SO2 emissions that correspond to the ranges in both paragraphs (1) and (2) of this subsection occur during a calendar day, only the range in paragraph (2) of this subsection applies to that calendar day; (e) Reformer Flare (EPN 05REFMFLR) emissions may not exceed 103.70 lb/hr SO2 during normal operations, and the following limits apply during authorized MSS activities: (1) emissions may be equal to or greater than 103.71 lb/hr SO2 but less than 250.01 lb/hr SO2 in any hour within a calendar day for no more than four calendar days each year; (2) emissions may be equal to or greater than 250.01 lb/hr but less than 750.01 lb/hr SO2 in any hour within a calendar day for no more than five calendar days each year;(3) emissions above 750.00 lb/hr SO2 are prohibited; and(4) if SO2 emissions that correspond to the ranges in both paragraphs (1) and (2) of this subsection occur during a calendar day, only the range in paragraph (2) of this subsection applies to that calendar day. (f) South Flare (EPN 16SOUTHFLR) emissions may not exceed 118.70 lb/hr SO2 during normal operations, and the following limits apply during authorized MSS activities; (1) emissions may be equal to or greater than 118.71 lb/hr SO2 but less than 250.01 lb/hr SO2 in any hour within a calendar day for no more than four calendar days each year; (2) emissions may be equal to or greater than 250.01 lb/hr SO2 but less than 500.01 lb/hr SO2 in any hour within a calendar day for no more than 12 calendar days each year;(3) emissions may be equal to or greater than 500.01 lb/hr SO2 but less than 1,696.01 lb/hr SO2 in any hour within a calendar day for no more than two calendar days each year;(4) emissions above 1,696.00 lb/hr SO2 are prohibited; and(5) if SO2 emissions that correspond to more than one range specified in paragraphs (1) - (3) of this subsection occur during a calendar day, only the emissions in the highest range will be used in determining which emissions rate range specified in paragraphs (1) - (3) of this subsection applies to that calendar day.(g) No. 1 SRU Incinerator Vent (EPN 69TGINC) emissions may not exceed 17.03 lb/hr SO2.(h) No. 2 SRU Incinerator Vent (EPN 71TGINC) emissions may not exceed 12.78 lb/hr SO2.(i) The owner or operator may request an alternate means of control (AMOC) as follows: (1) Permitting Requirements. Compliance with this subsection does not relieve any owner or operator of the responsibility to comply with the requirements of §116.110 or §116.151 of this title (relating to Applicability and New Major Source or Major Modification in Nonattainment Area Other Than Ozone, respectively) with respect to the new construction or modification of sources that may emit SO2 into the air of this state.(2) Availability of AMOC.(A) The owner or operator of any site subject to a control requirement in this subchapter may request approval of an AMOC plan using the procedures established in this subsection. The executive director shall review a submitted AMOC and may approve the AMOC plan if it is demonstrated that the plan meets all applicable criteria and procedures of this subsection. The owner or operator who submits an AMOC plan not satisfying the requirements of this section may apply for a site-specific state implementation plan revision approved by the executive director and the United States Environmental Protection Agency (EPA).(B) Application for an AMOC plan does not stay enforcement of regulations in this subchapter.(C) Any violation of an AMOC plan will be subject to enforcement action as a violation of this subchapter.(3) Criteria for Approval of AMOC Plans. An AMOC plan may be approved if it meets each of the following criteria, as applicable. (A) Except as provided for in paragraph (8) of this subsection, all sources covered by the AMOC plan must be and remain at the same site.(B) If the AMOC plan includes an increase in the lb/hr emission limit for a source subject to the control requirements in this subchapter, the AMOC plan must also include an equivalent decrease in the lb/hr emission limit for one or more sources subject to the control requirements of this subchapter.(C) The AMOC application must include a demonstration that satisfies the following requirements.(i) The modeled impacts of all sources affected by the AMOC plan demonstrate no net increase in ground-level concentration, which for purposes of this subparagraph means no net increase in modeled off-property concentration of SO2, on a highest, first-high basis, at any receptor, i , in excess of the lesser of:(I) GLC, as defined in the following equation; or Attached Graphic(II) an applicable significant impact level for the one-hour National Ambient Air Quality Standard for SO2.(ii) Except where otherwise provided in this subsection, the demonstration required under this paragraph must be by means of applicable air quality models, databases, and other requirements specified in Appendix W to 40 CFR §51.1 and what was used in the modeling for the corresponding SIP revision.(D) The AMOC must be implemented and reductions created after the effective date of this rule.(E) The AMOC plan must establish control requirements and monitoring, testing, recordkeeping, and reporting requirements consistent with and no less stringent than the applicable requirements of this subchapter for all sources in the plan that render the proposed control requirements enforceable.(4) Procedures for AMOC Plan Submittal.(A) The owner or operator requesting an AMOC plan shall submit a proposed AMOC plan and demonstration to the executive director; copies of such plan and demonstration must also be submitted to the appropriate regional office, any local air pollution control program with jurisdiction over the site affected by the AMOC plan, and the EPA regional office.(B) The proposed AMOC plan must include the following information:(i) the AMOC applicant name with mailing address, site name with physical address, regulated entity number, and contact person including address and telephone number;(ii) an identification and a description of the sources involved in the AMOC plan including any applicable air permit numbers, plot plans, detailed flow diagrams, emission point numbers (EPNs), and facility identification numbers (FINs); an identification of the provisions of this subchapter that are applicable to such sources; an identification of promulgated provisions of this subchapter that will be applicable to such sources; and a description of normal operating conditions for each source causing emissions;(iii) control requirements, which must be established for each source to make emission limits enforceable, to be applicable to each source affected by the proposed AMOC plan;(iv) a demonstration that the AMOC plan satisfies each applicable requirement of paragraph (3) of this subsection;(v) a list containing the name, address, and telephone number of any air pollution control program with jurisdiction over the site affected by the AMOC plan; and(vi) any other relevant information necessary to evaluate the merits and enforceability of the AMOC plan, as may be requested by the executive director.(C) All representations with regard to the AMOC plan, as well as any provisions attached to the AMOC plan, become conditions upon which the subsequent AMOC plan is issued. If the AMOC plan is approved by the executive director and the EPA, the owner or operator may not vary from such representation or provision if the change will cause a change in the method of control of emissions, the character of the emissions, or will result in an increase in the discharge of the various emissions. If the AMOC plan is approved by the executive director and the EPA, the owner or operator may not vary from the emission limits, control requirements, monitoring, testing, reporting, or recordkeeping requirements of an approved AMOC plan.(D) Applications to amend or revise an AMOC plan must be submitted subject to the requirements of this subsection.(5) Procedures for an AMOC Plan Approval. Upon a preliminary determination to approve or deny the proposed AMOC plan, the executive director shall, in writing, so notify the submitter of the plan, any local air pollution control program with jurisdiction over the site affected by the AMOC plan, and the EPA regional office.(A) If the executive director makes a preliminary determination to approve the AMOC plan, the notice must include a copy of the AMOC plan as preliminarily approved.(B) If the executive director makes a determination to deny the AMOC plan, the notice must include a description of the reason(s) for such determination of denial. This determination constitutes a final action of the executive director appealable to the commission as provided in subparagraph (G) of this subsection.(C) Upon receipt of notice from the executive director that the AMOC plan has received preliminary approval, the AMOC applicant, at the applicant's own expense, shall cause notice of the applicant's intent to obtain an AMOC plan and of the opportunity to submit written comments to be published. The notice must be consistent with paragraph (6) of this subsection.(D) The executive director shall consider and prepare a written response to all significant and timely written comments filed in connection with an AMOC plan.(E) In response to the written comments, the executive director may modify the provisions of the AMOC plan, deny the AMOC plan, or approve the AMOC plan without changes.(F) The executive director shall send written notice of the final determination concerning each AMOC plan to the submitter of the plan, the EPA regional office, any local pollution control program with jurisdiction, and to each person who submitted timely written comments. Such notice must include the final AMOC plan provisions, a copy of the response to comments, and an announcement of the opportunity to appeal the executive director's determination to the Commission. The notice required by this subparagraph must be sent by a means evidencing receipt.(G) Any person entitled to notice under paragraph (6) of this subsection may, within 15 days of the receipt of such notice, file with the executive director an appeal of the final determination on the AMOC plan. Such appeal may be considered at the next regularly scheduled meeting of the Commission for which adequate notice may be made. Based on arguments submitted to the commission during such appeal, the Commission may remand the AMOC determination to the executive director, deny the AMOC plan, or issue the AMOC plan unchanged.(H) Within 45 days of final approval of the AMOC plan by the executive director or the Commission for an appeal, the EPA may notify the commission of the EPA's disapproval of the executive director's final decision. Such notification must be in writing and must include a statement of the reason(s) for the disapproval and a specific listing of changes to the AMOC plan needed to overcome the disapproval. Any time prior to the expiration of the 45-day period, the EPA may notify the executive director that no disapproval is forthcoming. Upon receipt of a timely EPA disapproval, the executive director shall void or revise the AMOC plan and reissue the notice as required by paragraph (6) of this subsection.(I) If no appeal of the executive director's decision to approve the AMOC plan is filed pursuant to subparagraph (G) of this paragraph, the AMOC plan becomes effective upon the acceptance of the plan by the EPA as described in subparagraph (K) of this paragraph. (J) If an appeal of the executive director's decision is filed, the AMOC plan becomes effective upon the latter of the acceptance of the AMOC plan by the Commission or the acceptance of the AMOC plan by the EPA.(K) EPA acceptance is defined as explicit approval of the AMOC plan by the EPA, notification by the EPA to the executive director that no EPA disapproval is forthcoming, or failure of the EPA to file notice of disapproval within 45 days after the executive director's final decision to approve the AMOC plan.(6) Public Notice Format.(A) Public notice must be published in the public notice section of two successive issues of a newspaper of general circulation in or closest to the municipality in which the site affected by the AMOC plan is located. (B) Public notice must contain the following information:(i) the AMOC plan application number assigned by the executive director;(ii) the AMOC applicant's name;(iii) the type of source and site;(iv) a description of the location of the site;(v) a brief description of the AMOC plan;(vi) the executive director's preliminary determination to approve the plan;(vii) the locations and availability of copies of the proposed AMOC plan, related documentation, and the executive director's preliminary analysis of the plan (including the Austin and appropriate regional offices, any local pollution control program with jurisdiction over the site affected by the AMOC plan, and the EPA regional office);(viii) an announcement of the opportunity to submit written comments on the AMOC plan;(ix) the length of the public comment period, which extends to at least 30 days after the final publication of the notice;(x) the procedure for submission of written public comments concerning the proposed AMOC plan; and(xi) the name, address, and phone number of the agency's regional office to be contacted for further information.(C) The executive director may not take final action on the AMOC plan until the owner or operator who submitted the AMOC plan has provided proof of adequate notice to the executive director, the EPA, and any local pollution control program with jurisdiction.(7) Review of Approved AMOC Plans and Termination of AMOC Plans.(A) For the purposes of this subsection, compliance date means the date by which a source must comply with new or modified sections of this subchapter.(B) Unless revised to reflect new regulatory requirements, an AMOC plan becomes void on the compliance date specified for a new or modified section of this subchapter affecting a source subject to an AMOC plan.(C) The holder of an AMOC plan shall comply with the requirements of this subchapter if the AMOC plan becomes void.(D) Upon final approval of an AMOC plan, the owner or operator of the sources affected by the plan shall keep a copy of the plan on the site affected by the plan and shall make the plan available upon request to representatives of the executive director, the EPA, or any local air pollution control agency having jurisdiction in the area.(E) Upon request, each holder of an AMOC plan shall submit to the executive director a demonstration that the plan continues to meet all applicable criteria of this subsection.(F) An AMOC holder is responsible for obtaining a new AMOC plan prior to the compliance date of any new or modified regulation of this subchapter that affects a source subject to an AMOC plan.(8) Inclusion of Contiguous Properties. Notwithstanding paragraph (3)(A) of this subsection, an AMOC plan may cover multiple sources operated on contiguous properties, provided that separate requests for plan approval are submitted by each owner or operator subject to a control requirement under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §112.102 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.103"><num value="112.103">§112.103</num><heading>Monitoring Requirements</heading><content>The owner or operator shall continuously monitor equipment subject to sulfur dioxide (SO2) emission limits or standards in §112.102 of this title (relating to Control Requirements) as follows:(1) install, operate, calibrate, and maintain a continuous emissions monitoring system (CEMS) as specified in 40 Code of Federal Regulations (CFR) §60.105a(g)(1), (2) and (5) regardless of whether these provisions otherwise apply; use an analyzer with a minimum analyzer accuracy of plus or minus (±) 2.5%, a dedicated totalizing gas flow measurement system with a minimum measurement accuracy of ±5%, and a temperature monitor with a minimum accuracy of ±1%; convert data from all monitoring devices to a common concentration, flow, pressure, and temperature basis, and calculate and record 15-minute and subsequent block one-hour average SO2 emissions from FCCU ESP Stack (EPN 06ESPPCV);(2) for the North East Flare (EPN 14NEASTFLR), Crude Flare (EPN 02CRUDEFLR), Reformer Flare (EPN 05REFMFLR), and South Flare (EPN 16SOUTHFLR), install, operate, calibrate, and maintain designated instrumentation according to the manufacturers' specifications to continuously monitor the gas stream flare inlet temperature, the total inlet gas flow rate, and the total sulfur concentration as specified in 40 CFR §60.107a(e) and (f)(1), regardless of whether these provisions otherwise apply or exempt flare activities, as follows: (A) monitor the total volumetric flow rate of gases routed to each flare using a separate dedicated totalizing gas flow meter with an accuracy of ±5%; (B) monitor the temperature of gases routed to each flare using a separate temperature measurement device with an accuracy of ±1%; and(C) monitor the sulfur content of the combined inlet flare gas stream as follows:(i) using a separate dedicated analyzer capable of accurately measuring and recording total sulfur (including sulfur dioxide (SO2), hydrogen sulfide (H2S), and organic sulfur compounds levels) with an accuracy of ±5% on a continuous basis, the sulfur concentration must be determined in accordance 40 CFR §60.107a(e)(1) regardless of whether these requirements are otherwise applicable or exempt the flare, and hourly SO2 emissions must be determined using the following equation; orAttached Graphic(ii) using a separate dedicated analyzer capable of accurately measuring and recording H2S to an accuracy of ±5% on a continuous basis, determine the H2S concentration in the flared gas stream, derive an inlet flare gas total sulfur concentration for each monitored hourly H2S concentration in accordance with 40 CFR §60.107a(e)(2) methodology regardless of whether these requirements are otherwise applicable or exempt the flare, and calculate the SO2 emissions for each operating hour using the following equation:Attached Graphic(3) separately for SRU1 Incinerator Stack (EPN 69TGINC) and SRU2 Incinerator Stack (EPN 71TGINC), install, operate, calibrate, and maintain a CEMS as specified in 40 CFR §60.106a(a), regardless of whether these provisions otherwise apply; use an analyzer with a minimum accuracy of ±2.5%, a dedicated totalizing gas flow measurement system with an accuracy of ±5%, and temperature indicator with an accuracy of ±1% convert data from all monitoring devices to a common concentration, flow, pressure, and temperature basis and calculate and record 15-minute and subsequent block one-hour average SO2 emissions; (4) continuous monitoring data collected in accordance with requirements in this subsection must undergo an appropriate quality assurance and quality control process and be validated for at least 95% of the time that the monitored emission point has emissions; an owner or operator must utilize the most accurate data substitution methodology available that is at least equivalent to engineering judgement and replace all missing or invalidated monitoring data for the entire period the monitored emission point has emissions; and(5) minor modifications to monitoring methods may be approved by the executive director. Monitoring methods other than those specified in this section may be used if approved by the executive director and validated by 40 CFR Part 63, Appendix A, Test Method 301. For the purposes of this subsection, substitute "executive director" in each place that Test Method 301 references "administrator." These validation procedures may be waived by the executive director or a different protocol may be granted for site-specific applications. Minor modifications that may be approved under this subsection include increases in the frequency of monitoring and the replacement of parametric monitoring with direct emissions monitoring with a CEMS provided appropriate quality assurance control, accuracy specifications, and data validation requirements are specified and no less stringent than monitoring requirements for a comparable EPN in this division.</content><note type="source"><p>Source Note: The provisions of this §112.103 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.104"><num value="112.104">§112.104</num><heading>Testing Requirements</heading><content>By the compliance date in §112.108 of this title (relating to Compliance Schedule), the owner or operator shall comply with the following:(1) perform continuous emissions monitoring system relative accuracy tests for equipment installed to meet the requirements of §112.103 of this title (relating to Monitoring Requirements) in accordance with 40 Code of Federal Regulations (CFR) §60.105a(g)(2) for the FCCU ESP Stack (EPN06ESPPCV) and 40 CFR §60.106a(1)(iii) for the No. 1 SRU Incinerator Vent (EPN 69TGINC) and No. 2 SRU Incinerator Vent (EPN 71TGINC);(2) perform initial and subsequent testing of monitoring devices required by §112.103 of this title in accordance with the manufacturer's specifications to ensure that the required monitoring instrumentation is properly calibrated and functional. Initial testing must be completed by the applicable compliance date in §112.108 of this title. If a monitoring device was previously tested in accordance with the manufacturer's specifications and a record is available to document proper procedures were followed, then an owner or operator is not required to repeat the initial testing again under these provisions; and(3) conduct additional performance testing, if requested by the executive director, in compliance with 40 CFR §60.104a to demonstrate compliance with applicable emission limits or standards. The notification requirements of 40 CFR §60.8(d) apply to each initial performance test and to each subsequent performance test required by the executive director, except for performance tests conducted for the purpose of obtaining supplemental data because of continuous monitoring system breakdowns, repairs, calibration checks, or zero and span adjustments. All performance tests must be conducted using test methods allowed in §112.105 of this title (relating to Approved Test Methods).</content><note type="source"><p>Source Note: The provisions of this §112.104 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.105"><num value="112.105">§112.105</num><heading>Approved Test Methods</heading><content>(a) Tests required under §112.104 of this title (relating to Testing Requirements) must be conducted using the test methods in 40 Code of Federal Regulations (CFR) Part 60, Appendices A-1 through A-8 and Appendix B or other methods as specified in this section, except as provided in 40 CFR §60.8(b).(b) Fuel and waste gas sulfur content must be determined using American Society for Testing and Materials (ASTM) Method D6667 (Determination of Total Volatile Sulfur in Gaseous Hydrocarbons), ASTM Method D1945 (Standard Test Method for Analysis of Natural Gas by Gas Chromatography), United States Environmental Protection Agency (EPA) Method 15A or 16A of Appendix A to 40 CFR Part 60, ASTM Method D4468, or ASTM Method D5504 if it is conducted in a manner that analyzes all sulfur-containing compounds present.(c) Sulfur dioxide (SO2) in exhaust gases must be determined using EPA Test Method 6 or 6C (40 CFR, Part 60, Appendix A). (d) For flares subject to emissions limitations or standards in §112.102 of this title (relating to Control Requirements), the owner or operator shall use flare test methods and procedures in 40 CFR §60.104a.(e) Alternate methods as approved by the executive director and the EPA may be used.</content><note type="source"><p>Source Note: The provisions of this §112.105 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.106"><num value="112.106">§112.106</num><heading>Recordkeeping Requirements</heading><content>The owner or operator shall maintain records in written or electronic format sufficient to demonstrate compliance with this division for a minimum of five years, including, but not limited to, the following:(1) all monitoring data and sampling analyses, including, but not limited to, continuous emission monitoring system data and sulfur composition data, used to quantify emissions;(2) the methodology and any associated calculations used to determine compliance;(3) documentation of any period that emission limits or standards were exceeded and copies of required exceedance reports submitted to the appropriate Texas Commission on Environmental Quality Regional Office; and(4) copies of required emission test data and records.</content><note type="source"><p>Source Note: The provisions of this §112.106 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.107"><num value="112.107">§112.107</num><heading>Reporting Requirements</heading><content>(a) If a source subject to an emissions limit in §112.102 of this title (relating to Control Requirements) exceeds an applicable emission limit or fails to meet a required stack parameter, the owner or operator shall submit to the Texas Commission on Environmental Quality (TCEQ) Regional Office for the area where the plant is located a report by March 31 of the year after an exceedance occurs documenting the excess emissions during the preceding calendar year, including, but not limited to, the following: (1) the date that each exceedance or failure to meet a required stack parameter occurred; (2) an explanation of the exceedance or failure to meet a required stack parameter, including the specific rule citation from §112.102 of this title;(3) a statement of whether the exceedance or failure to meet a required stack parameter was concurrent with either an authorized maintenance, startup, or shutdown activity for, or a malfunction of, an affected source or control system; (4) a description of the corrective action taken, if any; and (5) a written statement, signed by the owner or operator, certifying the accuracy and completeness of the information contained in the report. (b) The owner or operator shall submit a copy of each test report for any testing conducted under §112.104 of this title (relating to Testing Requirements) to the TCEQ Regional Office and any local air pollution control agency having jurisdiction for the area where the plant is located within 60 days after completion of the test. (c) After the effective date of a determination by the Environmental Protection Agency (EPA) that the Howard County sulfur dioxide (SO2) nonattainment area has failed to attain the 2010 one-hour SO2 National Ambient Air Quality Standard or failed to meet reasonable further progress (RFP) pursuant to federal Clean Air Act §179(c), 42 United States Code §7509(c), the TCEQ will notify the owner or operator of the failure to attain and that the contingency measures in this subsection are triggered. Once notification is received from the TCEQ, the owner or operator shall perform a full system audit (FSA) of all SO2 sources subject to §112.100 of this title (related to Applicability). (1) Within 90 calendar days after the date of the notification, the owner or operator shall submit the FSA, including recommended provisional SO2 emission control strategies as necessary, to the executive director of the TCEQ. (2) As part of the FSA, the owner or operator shall conduct a root cause analysis of the circumstances surrounding the cause of the determination of failure to attain or failure to meet RFP, including a review and consideration of the following: (A) for all causes of the determination of failure to attain or failure to meet RFP, at a minimum, hourly mass emissions of SO2 from each SO2 source subject to this division; and (B) for a determination of failure to attain based on ambient air monitor data or modeling data, at a minimum, the meteorological conditions recorded at the monitor or other relevant meteorological data, including the frequency distribution of wind direction temporally correlated with SO2 readings greater than 75 parts per billion at the monitor for which the EPA's determination of failure to attain was made; and any emissions event that may have occurred. The root cause analysis and associated records used to conduct the audit must consider information on the days that monitored exceedances occurred during the time period that the EPA evaluated in making the failure to attain determination.</content><note type="source"><p>Source Note: The provisions of this §112.107 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.108"><num value="112.108">§112.108</num><heading>Compliance Schedules</heading><content>The owner or operator shall comply with the requirements applicable to FCCU ESP Stack (EPN 06ESPPCV), No. 2 SRU Incinerator Vent (EPN 69TGINC), and No. 1 SRU Incinerator Vent (EPN 71TGINC) no later than November 1, 2023. The owner or operator shall comply with the requirements of this division applicable to all other sources no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §112.108 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.110"><num value="112.110">§112.110</num><heading>Applicability</heading><content>(a) The requirements in this division apply to affected sources at the Tokai Big Spring Carbon Black Plant, which is located at 1211 North Midway Road in Big Spring, Texas, in the Howard County sulfur dioxide nonattainment area. Affected sources will remain subject to this division regardless of ownership, operational control, or other documentation changes.(b) Affected existing sources are designated by the source name and emission point number (EPN) used in the site's New Source Review (NSR) permit as issued on the specified date. Applicable control devices to be authorized and constructed are similarly designated by the EPN that the company used to designate the future unit in the attainment demonstration modeling, with an appropriate name also used in the rules. The specific affected sources are as follows:(1) Incinerator + HRSG (EPN 13A) in NSR Permit 6580 dated November 23, 2021;(2) Dryer Stack Units Nos. 1 & 2 (EPN 7A) in NSR Permit 6580 dated November 23, 2021;(3) Dryer Stack Units No. 3 (EPN 12A) in NSR Permit 6580 dated November 23, 2021;(4) Flare 1 (EPN Flare-1) in NSR Permit 6580 dated November 23, 2021;(5) Flare 2 (EPN Flare-2) in NSR Permit 6580 dated November 23, 2021;(6) Flare 3 (EPN Flare-3) in NSR Permit 6580 dated November 23, 2021; and(7) Flare 4 (EPN FLARE 4) if authorized and constructed to replace the existing three flares for the carbon black reactors (EPN Flare-1, EPN Flare-2, and EPN Flare-3).</content><note type="source"><p>Source Note: The provisions of this §112.110 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.111"><num value="112.111">§112.111</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382), or in §101.1 or §112.1 of this title (relating to Definitions, respectively), the terms in this division have the meanings commonly used in the field of air pollution control. The following meanings apply in this division unless the context clearly indicates otherwise.(1) Block one-hour average--An hourly average of data, collected starting at the beginning of each clock hour of the day and continuing until the start of the next clock hour of the day (e.g., from 12:00:00 to 12:59:59).(2) Continuous Monitoring--Monitoring for which readings are recorded at least once every 15 minutes.(3) Howard County sulfur dioxide (SO2) nonattainment area--The portion of Howard County designated by the United States Environmental Protection Agency as nonattainment for the 2010 SO2 National Ambient Air Quality Standard, 40 Code of Federal Regulations §81.344.(4) Off-line--With respect to a carbon black oil furnace, a period when either: (A) only natural gas and combustion air are supplied to the furnace burners (no oil is supplied to the furnace burners), and the furnace is not manufacturing carbon black or generating tail gas; or (B) the oil furnace is not operating.(5) On-line--Not "off-line," as defined in paragraph (4) of this subsection.(6) Production unit--The combined equipment used in the manufacture of carbon black, including but not limited to, carbon black oil furnaces or reactors, bag unit filters, cyclones, fans, and carbon black dryers as specified in this rule. Production Units 1 and 2 consist of nine carbon black oil furnaces that produce tail gas and five carbon black dryers that combust tail gas and exhaust emissions through Dryer Stack Units Nos. 1 & 2 (Emission Point Number (EPN) 7A). Production Unit 3 consists of four carbon black oil furnaces that produce tail gas and two carbon black dryers that combust tail gas and exhaust emissions through Dryer Stack Unit No. 3 (EPN 12A). A portion of the tail gas from all of the furnaces is also combusted in the Incinerator + HRSG (EPN 13A) or by Flare 4 (EPN Flare 4).(7) Tail gas--The exit gaseous stream of a carbon black oil furnace consisting of water vapor, carbon monoxide, hydrogen, pyrolysis by-products, and reduced and organic sulfur compounds as a result of the manufacture of carbon black.</content><note type="source"><p>Source Note: The provisions of this §112.111 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.112"><num value="112.112">§112.112</num><heading>Control Requirements</heading><content>(a) Production Units 1 and 2 together are prohibited from operating with only one furnace on-line and Production Unit 3 is prohibited from operating with only one furnace on-line. Affected sources in §112.110 of this title (relating to Applicably) may not exceed the following pounds per hour (lb/hr) sulfur dioxide (SO2) limits based on the number of furnaces on-line in Production Units 1 and 2 and in Production Unit 3: Attached Graphic(b) If during any block one-hour period the number of furnaces on-line changes, the emission limit must be determined by one of the following methods:(1) the fewest number of furnaces on-line in each production unit during any fraction of the hour; or(2) the time-weighted average of all limits applying during any fraction of the hour, calculated using the following equation: Attached Graphic(c) The maximum emission rate of SO2 allowed under this section during any block one-hour period must be determined on a block one-hour average.(d) The emission cap identified in §112.112(a) of this section is the maximum emission limit that applies to the sum of the emissions from the Incinerator + HRSG (EPN 13A), Flare 4 (EPN Flare 4), Dryer Stack Units Nos. 1 & 2 (EPN 7A), and Dryer Stack Unit No. 1 (EPN 12A), and the subcap identified in §112.112(a) of this section is the maximum emission limit that applies to the sum of the emissions from Dryer Stack Units Nos. 1 & 2 (EPN 7A) and Dryer Stack Units No. 3 (EPN 12A).(e) Tail gas may only be combusted in sources whose emissions are routed to the Incinerator + HRSG (EPN 13A), Flare 4 (EPN Flare 4), Dryer Stack Units Nos. 1 & 2 (EPN 7A), and Dryer Stack Unit No. 1 (EPN 12A ). (f) Simultaneous operation of the Incinerator + HRSG (EPN 13A) and Flare 4 (EPN FLARE 4) during any block one-hour period is prohibited.(g) Sulfur or sulfur containing compounds may not be routed to Flare 1 (EPN Flare-1), Flare 2 (EPN Flare-2), or Flare 3 (EPN Flare-3) on or after the compliance date in §112.118 of this title (relating to Compliance Schedule).(h) After construction and commencement of operation, if authorized, Flare 4 (EPN FLARE 4) must have a stack height of 60.35 meters and must be located at Universal Transverse Mercator (UTM) coordinates UTM East Meters 273185 and UTM North Meters 3573987 in UTM Zone 14.(i) Incinerator + HRSG (EPN 13A) must have a stack height of 65.00 meters no later than the compliance date in §112.118 of this title (relating to Compliance Schedules).(j) The owner or operator may request an alternate means of control under the provisions of §112.102(i) of this title (relating to Control Requirements).</content><note type="source"><p>Source Note: The provisions of this §112.112 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.113"><num value="112.113">§112.113</num><heading>Monitoring Requirements</heading><content>(a) For each block one-hour period of operation, the owner or operator shall calculate total SO2 emissions generated by each production unit using the following equation.Attached Graphic(b) The owner or operator shall calculate the SO2 emissions from Incinerator + HRSG (EPN 13A), Dryer Stack Units Numbers 1 and 2 (EPN 7A), Dryer Stack Units Number 3 (EPN 12A), and Flare 4 (EPN FLARE 4) for each block one-hour period of operation during which emissions of SO2 are emitted from the emission points listed in this subsection, using the following equations. (1) for the Incinerator + HRSG (EPN 13A), calculate the emission rate using the following equation).Attached Graphic(2) For Dryer Stack Units No. 1 & 2 (EPN 7A), calculate the emission rate using the following equation.Attached Graphic(3) For Flare 4 (EPN Flare 4), calculate the emission rate using the following equation.Attached Graphic(4) For Dryer Stack Unit No. 3 (EPN 12A), calculate the emission limit using the following equation.Attached Graphic(c) The owner or operator shall install, calibrate, maintain, and operate one or more totalizing fuel flow meters, consistent with manufacturer's specifications, with an accuracy of ±5%, to continuously measure the feed rate of carbon black oil feedstock supplied to each carbon black production unit. (d) The owner or operator shall install, calibrate, maintain, and operate totalizing tail gas flow meters, consistent with manufacturer's specifications, with an accuracy of ±5%, to continuously measure the volumetric flow rate of tail gas to each tail gas combustion device covered under §112.112 of this title (relating to Control Requirements). Tail gas combustion devices include the dryers, Incinerator + HRSG, and Flare 4.(e) The owner or operator shall use a continuous data acquisition system that continuously measures, calculates, and records the following quantities:(1) the volumetric flow rate of tail gas to the Incinerator + HRSG (EPN 13A) and Flare 4 (EPN Flare 4) from each production unit; (2) the volumetric flow rate of tail gas to the carbon black dryers in each production unit; (3) the total volumetric flow rate of tail gas from each production unit; (4) for each production unit, the ratio of quantities in paragraphs (1) and (3) of this subsection, identified as "&pgrincin ", which is the split coefficient for the Incinerator + HRSG and for Flare 4 used in the calculations in subsection (b) of this section; and(5) for each production unit, the ratio of quantities in paragraphs (2) and (3) of this subsection, identified as "&pgrdryer ", which is the split coefficient for the dryers used in the calculations in subsection (b) of this section. (f) The owner or operator shall install, calibrate, maintain, and operate the continuous data acquisition system specified in subsection (e) of this section in accordance with the manufacturer's recommended procedures. (g) The owner or operator shall measure twice daily (at least four hours apart) the sulfur content by weight of the carbon black oil in the feed to each production unit according to the requirements of §112.115(b) of this title (relating to Approved Test Methods). (h) For each grade of carbon black produced, the owner or operator shall measure daily the sulfur content by weight of the carbon black produced by each carbon black production unit in accordance with §112.115(c) of this title. (i) The owner or operator shall determine the amount of each grade of carbon black produced by each carbon black production unit each hour. (j) In lieu of the monitoring requirements of §112.113(a) - (i) of this section, the owner or operator may install, calibrate, and maintain a continuous emissions monitoring system to monitor exhaust sulfur dioxide (SO2) from Incinerator + HRSG (EPN 13A), Dryer Stack Units Nos. 1 & 2 (EPN 7A), or Dryer Stack Units No. 3 (EPN 12A) in accordance with the requirements of 40 Code of Federal Regulations (CFR) §60.13, 40 CFR Part 60, Appendix B, Performance Specification 2 and 6, for SO2, and 40 CFR Part 60, Appendix F, quality assurance procedures. If a CEMS is not used to monitor the emissions from all three EPNs, monitoring requirements in §112.113(a) - (i) continue to apply for EPNs without a CEMS.(k) Continuous monitoring data collected in accordance with requirements in this section must undergo an appropriate quality assurance and quality control process and be validated for at least 95% of the time that the monitored emission point has emissions; an owner or operator must utilize an appropriate data substitution process based on the most accurate methodology available, which is at least equivalent to engineering judgement, to obtain all missing or invalidated monitoring data for the remaining period the monitored emission point has emissions.(l) Minor modifications to monitoring methods may be approved by the executive director. Monitoring methods other than those specified in this section may be used if approved by the executive director and validated by 40 CFR Part 63, Appendix A, Test Method 301. For the purposes of this subsection, substitute "executive director" in each place that Test Method 301 references "administrator." These validation procedures may be waived by the executive director or a different protocol may be granted for site-specific applications. Minor modifications that may be approved under this subsection include increases in the frequency of monitoring provided appropriate quality assurance control, accuracy specifications, and data validation requirements are specified and no less stringent than monitoring requirements for a comparable EPN in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §112.113 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.114"><num value="112.114">§112.114</num><heading>Testing Requirements</heading><content>(a) The owner or operator shall perform an initial demonstration of compliance test on the emission points specified in §112.112 of this title (relating to Control Requirements) for sulfur dioxide, except for flares, while the associated sources are firing tail gas, by the compliance date in §112.118 of this of this title (relating to Compliance Schedules). The owner or operator shall perform additional performance tests at least every five years.(b) The owner or operator shall use the methods provided in §112.115 of this title (relating to Approved Test Methods) for the initial demonstration of compliance test required under subsection (a) of this section.(c) During performance testing the owner or operation shall operate the source at the maximum rated capacity, or as near thereto as practicable.(d) The owner or operator shall conduct additional performance testing, if requested by the executive director. All performance tests must be conducted using test methods allowed in §112.115 of this title.(e) If a CEMS is installed, operated, calibrated, and maintained, in accordance with the requirements in this division, to monitor emissions from any EPN subject to this division, the requirement to conduct performance testing once every 5 years no longer applies to that EPN.</content><note type="source"><p>Source Note: The provisions of this §112.114 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.115"><num value="112.115">§112.115</num><heading>Approved Test Methods</heading><content>(a) Tests required under §112.114 of this title (relating to Testing Requirements) must be conducted using the test methods in 40 Code of Federal Regulations (CFR) Part 60, Appendices A-1 through A-8 and Appendix B or other methods as specified in this section, except as provided in 40 CFR §60.8(b).(b) Sulfur content of fuels and carbon black oil must be determined using American Society for Testing and Materials (ASTM) Method D4294.(c) Sulfur content of carbon black must be determined using ASTM Method D1619.(d) Sulfur dioxide in exhaust gases must be determined using United States Environmental Protection Agency (EPA) Test Method 6 or 6C (40 CFR, Part 60, Appendix A).(e) For flares subject to emissions limitations or standards in §112.112 of this title (relating to Control Requirements), the owner or operator shall use flare test methods and procedures in 40 CFR §60.104a as if the federal rules apply to carbon black plants.(f) Alternate methods as approved by the executive director and the EPA may be used.</content><note type="source"><p>Source Note: The provisions of this §112.115 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.116"><num value="112.116">§112.116</num><heading>Recordkeeping Requirements</heading><content>The owner or operator shall maintain records in written or electronic format sufficient to demonstrate compliance with each applicable requirement for a minimum of five years, including but not limited to the following:(1) records, in units of pounds per hour, of production of carbon black for each grade of carbon black from each carbon black production unit;(2) twice-daily records of sulfur content by weight of the carbon black oil feedstock;(3) daily records of sulfur content by weight of the carbon black produced for each grade of carbon black produced by each carbon black production unit;(4) records of continuous carbon black oil feedstock flow rates for each carbon black production unit;(5) records of continuous tail gas volumetric flow rates to each tail gas combustion device covered by §112.112 of this title (relating to Control Requirements); and(6) for each block one-hour period of operation of a carbon black production unit:(A) records of the identification of each furnace on-line each minute of each block one-hour period;(B) records of the applicable emission limit of sulfur dioxide (SO2) as determined by §112.112 of this title during the block one-hour period, including any calculations conducted under §112.112(b) of this title;(C) records of all information identified in §112.113 of this title (relating to Monitoring Requirements) and the required mass balance calculations of emissions of SO2 for each emission point number with SO2 emissions during the block one-hour period;(7) documentation of any period that emission limits or standards were exceeded, and copies of exceedance reports submitted to the appropriate Texas Commission on Environmental Quality regional office; and(8) copies of test reports for tests conducted in accordance with §112.114 of this title and associated records.</content><note type="source"><p>Source Note: The provisions of this §112.116 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.117"><num value="112.117">§112.117</num><heading>Reporting Requirements</heading><content>(a) If a source that is subject to an emissions limit in §112.112 of this title (relating to Control Requirements) exceeds the applicable emission limit or fails to meet a required stack parameter, the owner or operator shall submit to the Texas Commission on Environmental Quality (TCEQ) Regional Office for the area where the plant is located a report by March 31 of the year after an exceedance occurs documenting the excess emissions during the preceding calendar year, including but not limited to the following:(1) the date that each exceedance or failure to meet a required stack parameter occurred;(2) an explanation of the exceedance or failure to meet a required stack parameter;(3) a statement of whether the exceedance or failure to meet a required stack parameter was concurrent with either an authorized maintenance, startup, or shutdown activity for, or a malfunction of, an affected source or control system;(4) a description of the corrective action taken, if any; and(5) a written statement, signed by the owner or operator, certifying the accuracy and completeness of the information contained in the report.(b) The owner or operator shall submit a copy of each test report for any testing conducted under §112.114 of this title (relating to Testing Requirements) to the TCEQ Regional Office and any local air pollution control agency having jurisdiction for the area where the plant is located within 60 days after completion of the test. (c) After the effective date of a determination by the United States Environmental Protection Agency (EPA) that the Howard County sulfur dioxide (SO2) nonattainment area has failed to attain the 2010 one-hour SO2 National Ambient Air Quality Standard or failed to meet reasonable further progress (RFP) pursuant to federal Clean Air Act §179(c), 42 United States Code §7509(c), the TCEQ will notify the owner or operator of the failure to attain and that the contingency measures in this subsection are triggered. Once notification is received from the TCEQ, the owner or operator shall perform a full system audit (FSA) of all SO2 sources subject to §112.110 of this title (relating to Applicability).(1) Within 90 calendar days after the date of the notification, the owner or operator shall submit the FSA, including recommended provisional SO2 emission control strategies as necessary, to the executive director of the TCEQ. (2) As part of the FSA, the owner or operator shall conduct a root cause analysis of the circumstances surrounding the cause of the determination of failure to attain or failure to meet RFP, including a review and consideration of the following:(A) for all causes of the determination of failure to attain or failure to meet RFP, at a minimum, hourly mass emissions of SO2 from each SO2 source subject to this division; and(B) for a determination of failure to attain based on ambient air monitor data or modeling data, at a minimum, the meteorological conditions recorded at the monitor or other relevant meteorological data, including the frequency distribution of wind direction temporally correlated with SO2 readings greater than 75 parts per billion at the monitor for which the EPA's determination of failure to attain was made; and any emissions event that may have occurred. The root cause analysis and associated records used to conduct the audit must consider information on the days that monitored exceedances occurred during the time period that the EPA evaluated in making the failure to attain determination.</content><note type="source"><p>Source Note: The provisions of this §112.117 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scE/s112.118"><num value="112.118">§112.118</num><heading>Compliance Schedules</heading><content>The owner or operator of an affected source subject to §112.110 of this title (relating to Applicability) shall comply with the requirements of this division no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §112.118 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c112/scF"><num value="F">SUBCHAPTER F</num><heading>REQUIREMENTS IN THE HUTCHINSON COUNTY NONATTAINMENT AREA</heading><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.200"><num value="112.200">§112.200</num><heading>Applicability</heading><content>(a) The requirements in this division apply to affected sources at the Chevron Phillips Chemical Borger Plant, which is located in Borger, Texas at latitude 35.696666 and longitude -101.359722 in the Hutchinson County sulfur dioxide nonattainment area. Affected sources will remain subject to this division regardless of ownership, operational control, or other documentation changes.(b) Affected sources are designated by the source name and emission point number (EPN) used in the site's New Source Review (NSR) permit as issued on the specified date. The affected sources are as follows:(1) Sulfolene Handling Area (EPN F-M2A) in NSR Permit 21918 dated February 5, 2019;(2) North Flare (EPN FL-1) in NSR Permit 21918 dated February 5, 2019; and(3) South Flare, (EPN FL-2) in NSR Permit 21918 dated February 5, 2019.</content><note type="source"><p>Source Note: The provisions of this §112.200 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.201"><num value="112.201">§112.201</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382) or §101.1 or §112.1 of this title (relating to Definitions, respectively), the terms in this division have the meanings commonly used in the field of air pollution control. The following meanings apply in this division unless the context clearly indicates otherwise.(1) Block one-hour average--An hourly average of data, collected starting at the beginning of each clock hour of the day and continuing until the start of the next clock hour (e.g., from 12:00:00 to 12:59:59).(2) Continuous Monitoring--Monitoring for which readings are recorded at least once every 15 minutes.(3) Hutchinson County sulfur dioxide (SO2) nonattainment area--The portion of Hutchinson County designated by the United States Environmental Protection Agency as nonattainment for the 2010 SO2 National Ambient Air Quality Standard, 40 Code of Federal Regulations §81.344.</content><note type="source"><p>Source Note: The provisions of this §112.201 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.202"><num value="112.202">§112.202</num><heading>Control Requirements</heading><content>(a) Sulfolene Handling Area (EPN F-M2A) emissions may not exceed the following:(1) the emissions from the sulfolene building and trailer(s) at that location (EPN F-M2A_1 in the attainment demonstration modeling) may not exceed 0.98 pound per hour (lb/hr) sulfur dioxide (SO2); and(2) the emissions from the parking/storage area for trailer(s) with sulfolene (EPN F-M2A_2 in the attainment demonstration modeling) may not exceed 1.00 lb/hr SO2. (b) The combined emissions from the North Flare (EPN FL-1) and South Flare (EPN FL-2) may not exceed 430.00 lb/hr SO2.(c) The owner or operator may request an alternate means of control under the provisions of §112.232(k) of this title (relating to Control Requirements).</content><note type="source"><p>Source Note: The provisions of this §112.202 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.203"><num value="112.203">§112.203</num><heading>Monitoring Requirements</heading><content>(a) For the Sulfolene Handling Area (EPN F-M2A), the owner or operator shall track hourly the weight of sulfolene stored and shall monitor the temperature on an hourly basis inside the sulfolene handling building and each trailer containing sulfolene. The emissions from EPN F-M2A must be calculated as follows:(1) for the sulfolene handling building and each trailer storing sulfolene, enter the hourly measured weight of sulfolene stored into the following equation;Attached Graphic(2) enter into the equation in §112.203(a)(1) the decomposition factor corresponding to the measured temperature for that hour in the sulfolene handling building or trailer, as appropriate, calculated using the following equation;Attached Graphic(3) calculate the emissions for the specific trailer or the sulfolene handling building;(4) sum the emissions for the sulfolene handling building and all trailers at location F-M2A_1; and(5) sum the emissions for all trailers at location F-M2A_2.(b) The owner or operator shall monitor the sulfur content of gases routed to North Flare (EPN FL-1) and to South Flare (EPN FL-2) by using separate analyzers that are installed, calibrated, maintained, and operated according to the manufacturer's specifications, which are capable of accurately measuring and recording hydrogen sulfide and organic sulfur compounds levels on a continuous basis with an accuracy of ±2.5% of full scale for concentrations greater than 50 parts per million. To account for the de minimis levels of sulfur dioxide in the gases sent to the South Flare, the owner or operator shall add 0.015 pound per hour of SO2 to each hourly calculation of SO2 emissions from the South Flare.(c) The owner or operator shall monitor the volumetric flow rate of gases routed to the North Flare (EPN FL-1) and to the South Flare (EPN FL-2) using separate totalizing gas flow meters with an accuracy of ±5% that are installed, calibrated, maintained, and operated according to the manufacturer's specifications.(d) The owner or operator shall calculate the SO2 emissions from North Flare (EPN FL-1) South Flare (EPN FL-2) using the following equation with the addition of 0.015 pound per hour of SO2 to each hourly calculation of SO2 emissions from the South Flare:Attached Graphic(e) Continuous monitoring data collected in accordance with requirements in this subsection must undergo an appropriate quality assurance and quality control process and be validated for at least 95% of the time that the monitored emission point has emissions; an owner or operator must utilize an appropriate data substitution process based on the most accurate methodology available, which is at least equivalent to engineering judgement, to obtain all missing or invalidated monitoring data for the remaining period the monitored emission point has emissions.(f) Minor modifications to monitoring methods may be approved by the executive director. Monitoring methods other than those specified in this section may be used if approved by the executive director and validated by 40 CFR Part 63, Appendix A, Test Method 301. For the purposes of this subsection, substitute "executive director" in each place that Test Method 301 references "administrator." These validation procedures may be waived by the executive director or a different protocol may be granted for site-specific applications. Minor modifications that may be approved under this subsection include increases in the frequency of monitoring and the replacement of parametric monitoring with direct emissions monitoring with a continuous emissions monitoring system provided appropriate quality assurance control, accuracy specifications, and data validation requirements are specified and no less stringent than monitoring requirements for a comparable EPN in this division.</content><note type="source"><p>Source Note: The provisions of this §112.203 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.206"><num value="112.206">§112.206</num><heading>Recordkeeping Requirements</heading><content>The owner or operator shall maintain records in written or electronic format of the following continuous monitoring parameters for a minimum of five years:(1) for sulfolene handling areas (EPN F-M2A), hourly records of the following:(A) the temperature inside the sulfolene handling building (part of EPN F-M2A_1 in the attainment demonstration modeling) and each storage trailer holding sulfolene; (B) the amount of sulfolene stored in the sulfolene handling building and each trailer during each hour, the time and weight of each amount of sulfolene bagged and kept in the sulfolene handling building for more than an hour, and the time and weight of each amount of sulfolene placed in each trailer; (C) whether each storage trailer is located near the sulfolene handling building (EPN F-M2A_1 in the attainment demonstration modeling) or in the trailer parking area (EPN F-M2A_2 in the attainment demonstration modeling); (D) the calculated SO2 emissions from the sulfolene handling building and each storage trailer;(E) the sum of SO2 emissions from the sulfolene handling building and the adjacent trailers; and(F) the sum of SO2 emissions from the trailer parking area; (2) the sulfur content and flow rate of gases routed to the North Flare (EPN FL-1) and to the South Flare (EPN FL-2) and the emission rate calculations from this monitoring, as well as the specific time periods that each flare was in use; and(3) documentation of any period that emission limits or standards were exceeded and copies of required exceedance reports submitted to the appropriate Texas Commission on Environmental Quality Regional Office.</content><note type="source"><p>Source Note: The provisions of this §112.206 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.207"><num value="112.207">§112.207</num><heading>Reporting Requirements</heading><content>(a) For a source that is subject to an emissions limit in §112.202 of this title (relating to Control Requirements) and that exceeds an applicable emission limit or fails to meet a required stack parameter, the owner or operator shall submit to the Texas Commission on Environmental Quality (TCEQ) Regional Office for the area where the plant is located a report by March 31 of the year after an exceedance occurs documenting the excess emissions during the preceding calendar year, including at least the following: (1) the date that each exceedance or failure to meet a required stack parameter occurred; (2) an explanation of the exceedance or failure to meet a required stack parameter; (3) a statement of whether the exceedance or failure to meet a required stack parameter was concurrent with a maintenance, startup, or shutdown period for, or malfunction of, an affected source or control system; (4) a description of the action taken, if any; and (5) a written statement, signed by the owner or operator, certifying the accuracy and completeness of the information contained in the report. (b) After the effective date of a determination by the United States Environmental Protection Agency (EPA) that the Hutchinson County sulfur dioxide (SO2) nonattainment area has failed to attain the 2010 one-hour SO2 National Ambient Air Quality Standard or failed to meet reasonable further progress (RFP) pursuant to federal Clean Air Act §179(c), 42 United States Code §7509(c), the TCEQ will notify the owner or operator of the failure to attain and that the contingency measures in this subsection are triggered. Once notification is received from the TCEQ, the owner or operator shall perform a full system audit (FSA) of all SO2 sources subject to §112.200 of this title (relating to Applicability).(1) Within 90 calendar days after the date of the notification, the owner or operator shall submit the FSA, including recommended provisional SO2 emission control strategies as necessary, to the executive director of the TCEQ. (2) As part of the FSA, the owner or operator shall conduct a root cause analysis of the circumstances surrounding the cause of the determination of failure to attain or failure to meet RFP, including a review and consideration of the following: (A) for all causes of the determination of failure to attain or failure to meet RFP, at a minimum, hourly mass emissions of SO2 from each SO2 source subject to this division; and (B) for a determination of failure to attain based on ambient air monitor data or modeling data, at a minimum, the meteorological conditions recorded at the monitor or other relevant meteorological data, including the frequency distribution of wind direction temporally correlated with SO2 readings greater than 75 parts per billion at the monitor for which the EPA's determination of failure to attain was made; and any emissions event that may have occurred. The root cause analysis and associated records used to conduct the audit must consider information on the days that monitored exceedances occurred during the time period that the EPA evaluated in making the failure to attain determination.</content><note type="source"><p>Source Note: The provisions of this §112.207 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.208"><num value="112.208">§112.208</num><heading>Compliance Schedules</heading><content>The owner or operator of a source subject to §112.200 of this title (relating to Applicability) shall comply with the requirements of this division no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §112.208 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.210"><num value="112.210">§112.210</num><heading>Applicability</heading><content>(a) The requirements in this division apply to affected sources at the IACX Rock Creek Gas Plant, which is located at 1000 West Tenth Street in Borger, Texas in the Hutchinson County sulfur dioxide nonattainment area. Affected sources will remain subject to this division regardless of ownership, operational control, or other documentation changes.(b) Affected sources are designated by the source name and emission point number (EPN) used in the site's New Source Review (NSR) permit as issued on the specified date. The specific affected sources are as follows:(1) Acid Gas Flare (EPN FLR1) in NSR Permit 3131A dated July 12, 2011; and(2) Acid Gas Incinerator (EPN INCIN1) in NSR Permit 3131A dated July 12, 2011.</content><note type="source"><p>Source Note: The provisions of this §112.210 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.211"><num value="112.211">§112.211</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382), or in §101.1 or §112.1 of this title (relating to Definitions, respectively), the terms in this division have the meanings commonly used in the field of air pollution control. The following meanings apply in this division unless the context clearly indicates otherwise.(1) Block one-hour average--An hourly average of data, collected starting at the beginning of each clock hour of the day and continuing until the start of the next clock hour (e.g., from 12:00:00 to 12:59:59).(2) Continuous Monitoring--Monitoring for which readings are recorded at least once every 15 minutes.(3) Hutchinson County sulfur dioxide (SO2) nonattainment area--The portion of Hutchinson County designated by the United States Environmental Protection Agency (EPA) as nonattainment for the 2010 SO2 National Ambient Air Quality Standard, 40 Code of Federal Regulations §81.344.</content><note type="source"><p>Source Note: The provisions of this §112.211 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.212"><num value="112.212">§112.212</num><heading>Control Requirements</heading><content>(a) Acid Gas Flare (EPN FLR1) and Acid Gas Incinerator (EPN INCIN1) may not operate simultaneously.(b) Acid Gas Flare (EPN FLR1) emissions may not exceed 140.00 lb/hr sulfur dioxide (SO2).(c) Acid Gas Incinerator (EPN INCIN1) emissions may not exceed 140.00 lb/hr SO2.(d) The owner or operator may request an alternate means of control under the provisions of §112.232(k) of this title (relating to Control Requirements).</content><note type="source"><p>Source Note: The provisions of this §112.212 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.213"><num value="112.213">§112.213</num><heading>Monitoring and Testing Requirements</heading><content>(a) Monitoring requirements. The owner or operator shall continuously monitor, at a point prior to the manifold that directs gases to the Acid Gas Flare (EPN FLR1) or Acid Gas incinerator (EPN INCIN1), the gases routed to Acid Gas Flare (EPN FLR1) or Acid Gas Incinerator (EPN INCIN1) by using the following:(1) monitor at a point the sulfur content of the gas stream as follows:(A) using a separate dedicated analyzer capable of accurately measuring and recording total sulfur (including sulfur dioxide (SO2), hydrogen sulfide (H2S), and organic sulfur compounds levels) with an accuracy of ±5% on a continuous basis, the sulfur concentration must be determined in accordance 40 Code of Federal Regulations (CFR) §60.107a(e)(1) regardless of whether these requirements are otherwise applicable or exempt the flare or incinerator, and hourly SO2 emissions must be determined using the following equation; or Attached Graphic(B) using a separate dedicated analyzer capable of accurately measuring and recording H2S to an accuracy of ±5% on a continuous basis, determine the H2S concentration in the flared gas stream, derive an inlet flare or incinerator gas total sulfur concentration for each monitored hourly H2S concentration in accordance 40 CFR §60.107a(e)(2) methodology regardless of whether these requirements are otherwise applicable or exempt the flare or incinerator, and calculate the SO2 emissions from the flare and the incinerator for each operating hour that either is operated using the following equation:Attached Graphic(C) a totalizing gas flow meter with an accuracy of ±5% that is installed, calibrated, maintained, and operated according to per the manufacturer's specifications directions to continuously measure and record the volume of gas directed to the Acid Gas Flare (EPN FLR1) or Acid Gas Incinerator (EPN INCIN1); and (D) monitor the temperature of gases routed to the flare or incinerator using a temperature measurement device with an accuracy of ±1%; the inlet flare gas temperature measurement device must be installed, calibrated, maintained, and operated according to the manufacturer's recommendations and specifications.(2) In lieu of the monitoring requirements of §112.213(a)(1) of this subsection, the owner or operator may install, calibrate, and maintain a continuous emissions monitoring system to monitor exhaust SO2 from the Acid Gas Incinerator (EPN INCIN1) in accordance with the requirements of 40 CFR §60.13, 40 CFR Part 60, Appendix B, Performance Specification 2 and 6, for SO2, and 40 CFR Part 60, Appendix F, quality assurance procedures; (3) Continuous monitoring data collected in accordance with requirements in this subsection must undergo an appropriate quality assurance and quality control process and be validated for at least 95% of the time that the monitored emission point has emissions; an owner or operator must utilize an appropriate data substitution process based on the most accurate methodology available, which is at least equivalent to engineering judgment, to obtain all missing or invalidated monitoring data for the remaining period the monitored emission point has emissions.(4) Minor modifications to monitoring methods may be approved by the executive director. Monitoring methods other than those specified in this section may be used if approved by the executive director and validated by 40 CFR Part 63, Appendix A, Test Method 301. For the purposes of this subsection, substitute "executive director" in each place that Test Method 301 references "administrator." These validation procedures may be waived by the executive director or a different protocol may be granted for site-specific applications. Minor modifications that may be approved under this subsection include increases in the frequency of monitoring provided appropriate quality assurance control, accuracy specifications, and data validation requirements are specified and no less stringent than monitoring requirements for a comparable EPN in this subchapter.(b) Testing requirements. (1) The owner of operator shall perform initial testing for monitoring devices required by subsection (a) of this section if documentation is not available to demonstrate initial tests have been conducted, as well as all subsequent testing, in accordance with the manufacturer's specifications to ensure that the required monitors are calibrated and function properly by the compliance date in §112.218 of this title (relating to Compliance Schedules).(2) The owner or operator shall conduct initial performance testing by the compliance date in §112.218 of this title. During performance testing, the owner or operator shall operate the source at the maximum rated capacity, or as near thereto as practicable. The owner or operator shall conduct additional performance tests on the incinerator at least every five years after the compliance date to ensure the accuracy of the monitors for the gas stream sent to the incinerator or flare.(3) The owner or operator shall conduct additional performance testing, if requested by the executive director, in compliance with 40 CFR §60.104a to demonstrate compliance with applicable emission limits or standards. The notification requirements of 40 CFR §60.8(d) apply to each initial performance test and to each subsequent performance test required by the executive director. (4) All performance tests must be conducted using test methods allowed in §112.213(c).(c) Approved test methods.(1) Tests required under paragraph (b) of this section must be conducted using the test methods in 40 CFR Part 60, Appendices A-1 through A-8 and Appendix B or other methods as specified in this section, except as provided in §60.8(b).(2) Sulfur dioxide in exhaust gases from the incinerator during testing must be determined using United States Environmental Protection Agency (EPA) Test Method 6 or 6C (40 CFR, Part 60, Appendix A). (3) Alternate test methods as approved by the executive director and the EPA may be used.</content><note type="source"><p>Source Note: The provisions of this §112.213 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.216"><num value="112.216">§112.216</num><heading>Recordkeeping Requirements</heading><content>The owner or operator shall maintain records in written or electronic format for a minimum of five years of the continuous monitoring of the sulfur content and flow rate of gases routed to either the flare or the incinerator as well as which control device was in use and of all monitoring data and emission calculations required under §112.213 of this title (relating to Monitoring Requirements). The owner or operator shall maintain records for a minimum of five years of all testing done for monitors and copies of each performance test conducted. The owner or operator shall maintain documentation for a minimum of five years of any period that emission limits or standards were exceeded and copies of required exceedance reports submitted to the appropriate Texas Commission on Environmental Quality Regional Office.</content><note type="source"><p>Source Note: The provisions of this §112.216 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.217"><num value="112.217">§112.217</num><heading>Reporting Requirements</heading><content>(a) For a source that is subject to an emissions limit in §112.212 of this title (relating to Control Requirements) and that exceeds an applicable emission limit or fails to meet a required stack parameter, the owner or shall submit to the Texas Commission on Environmental Quality (TCEQ) Regional Office for the area where the plant is located a report by March 31 of the year after an exceedance occurs documenting the excess emissions during the preceding calendar year, including at least the following: (1) the date that each exceedance or failure to meet a required stack parameter occurred; (2) an explanation of the exceedance or failure to meet a required stack parameter; (3) a statement of whether the exceedance or failure to meet a required stack parameter was concurrent with a maintenance, startup, or shutdown period for, or malfunction of, an affected source or control system; (4) a description of the action taken, if any; and (5) a written statement, signed by the owner or operator, certifying the accuracy and completeness of the information contained in the report. (b) The owner or operator shall submit a copy of each performance test report to the appropriate TCEQ regional office and any local air pollution control agency having jurisdiction for the area where the plant is located within 60 days after completion of the test.(c) After the effective date of a determination by the Environmental Protection Agency (EPA) that the Hutchinson County sulfur dioxide (SO2) nonattainment area has failed to attain the 2010 one-hour SO2 National Ambient Air Quality Standard or failed to meet reasonable further progress (RFP) pursuant to federal Clean Air Act §179(c), 42 United States Code §7509(c), the TCEQ will notify the owner or operator of the failure to attain and that the contingency measures in this subsection are triggered. Once notification is received from the TCEQ, the owner or operator shall perform a full system audit (FSA) of all SO2 sources subject to §112.210 of this title (relating to Applicability). (1) Within 90 calendar days after the date of the notification, the owner or operator shall submit the FSA, including recommended provisional SO2 emission control strategies as necessary, to the executive director of the TCEQ. (2) As part of the FSA, the owner or operator shall conduct a root cause analysis of the circumstances surrounding the cause of the determination of failure to attain or failure to meet RFP, including a review and consideration of the following: (A) for all causes of the determination of failure to attain or failure to meet RFP, at a minimum, hourly mass emissions of SO2 from each SO2 source subject to this division; and (B) for a determination of failure to attain based on ambient air monitor data or modeling data, at a minimum, the meteorological conditions recorded at the monitor or other relevant meteorological data, including the frequency distribution of wind direction temporally correlated with SO2 readings greater than 75 parts per billion at the monitor for which the EPA's determination of failure to attain was made; and any emissions event that may have occurred. The root cause analysis and associated records used to conduct the audit must consider information on the days that monitored exceedances occurred during the time period that the EPA evaluated in making the failure to attain determination.</content><note type="source"><p>Source Note: The provisions of this §112.217 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.218"><num value="112.218">§112.218</num><heading>Compliance Schedules</heading><content>The owner or operator of a source subject to §112.210 of this title (relating to Applicability) shall comply with the requirements of this division no later than October 1, 2023.</content><note type="source"><p>Source Note: The provisions of this §112.218 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.220"><num value="112.220">§112.220</num><heading>Applicability</heading><content>(a) The requirements in this division apply to affected sources at the Orion Borger Carbon Black Plant, which is located at latitude 35.668055 and longitude -101.432777 in the Hutchinson County sulfur dioxide nonattainment area. Affected sources will remain subject to this division regardless of ownership, operational control, or other documentation changes.(b) Affected existing sources are designated by source name and emission point number (EPN) used in the site's New Source Review (NSR) permit as issued on the specified date, except for one waste heat boiler that is designated by its source name and EPN in the applicable Pollution Control Project Standard Permit. Applicable control devices to be authorized and constructed are similarly designated by the EPN that the company used to designate the future unit in the attainment demonstration modeling, with an appropriate name also used in the rules. The specific affected sources are as follows:(1) Waste Heat Boiler - CDS Stack (EPN E-6BN) in the Final Action letter for Pollution Control Project Standard Permit 164021 dated March 3, 2021;(2) Unit 1 Reactor/Flare (EPN E-10FL) in NSR Permit 8780 dated March 24, 2015;(3) Unit 2 Reactor/Flare (EPN E-20FL) in NSR Permit 8780 dated March 24, 2015;(4) Unit 4 Reactor/Flare (EPN E-40FL) in NSR Permit 8780 dated March 24, 2015; and(5) Combined Flare (EPN CFL) if authorized and constructed.</content><note type="source"><p>Source Note: The provisions of this §112.220 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.221"><num value="112.221">§112.221</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382), or in §101.1 or §112.1 of this title (relating to Definitions, respectively), the terms in this division have the meanings commonly used in the field of air pollution control. The following meanings apply in this division unless the context clearly indicates otherwise.(1) Block one-hour average--An hourly average of data, collected starting at the beginning of each clock hour of the day and continuing until the start of the next clock hour (e.g., from 12:00:00 to 12:59:59).(2) Continuous Monitoring--Monitoring for which readings are recorded at least once every 15 minutes.(3) Hutchinson County sulfur dioxide (SO2) nonattainment area--The portion of Hutchinson County designated by the United States Environmental Protection Agency (EPA) as nonattainment for the 2010 SO2 National Ambient Air Quality Standard, 40 Code of Federal Regulations §81.344. (4) Production unit--The carbon black oil furnace or group of carbon black oil furnaces, dryers or groups of dryers, and any ancillary units used in the manufacture of carbon black and producing tail gas.(5) Tail gas--The exit gaseous stream of a carbon black oil furnace consisting of water vapor, carbon monoxide, hydrogen, pyrolysis by-products, and reduced and organic sulfur compounds as a result of the manufacture of carbon black.</content><note type="source"><p>Source Note: The provisions of this §112.221 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.222"><num value="112.222">§112.222</num><heading>Control Requirements</heading><content>(a) Hourly mass emissions of sulfur dioxide (SO2), on a block one-hour average, may not exceed the following:(1) 144.11 lb/hr SO2, for the Waste Heat Boiler - CDS Stack (EPN E-6BN); and(2) 750.05 lb/hr SO2, for the Combined Flare (EPN CFL).(b) Tail gas may only be combusted in a source whose emissions are routed to Waste Heat Boiler - CDS Stack (EPN E-6BN) or Combined Flare (EPN CFL).(c) The Unit 1 Reactor/Flare Unit 1 Reactor/Flare (EPN E-10FL), Unit 2 Reactor/Flare (EPN E-20FL), and Unit 4 Reactor/Flare (EPN E-40FL) may not operate on or after the compliance date in §112.228 of this title (relating to Compliance Schedules). (d) If the Combined Flare (EPN CFL) is not authorized and constructed by the compliance date in §112.228 of this title, no flaring is allowed until EPN CFL is authorized, constructed, and operating.(e) After construction and commencement of operation, the Combined Flare (EPN CFL) must meet the following parameters:(1) only receive tail gas when Waste Heat Boiler - CDS Stack (EPN E-6BN) is not operating; and(2) be constructed with a stack height of 65.00 meters and must be located at Universal Transverse Mercator (UTM) coordinates UTM East Meters 279745.85 and UTM North Meters 3949549.50 in UTM Zone 14.(f) The owner or operator may request an alternate means of control under the provisions of §112.232(k) of this title (relating to Control Requirements).</content><note type="source"><p>Source Note: The provisions of this §112.222 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.223"><num value="112.223">§112.223</num><heading>Monitoring Requirements</heading><content>(a) The owner or operator shall install, calibrate, and maintain a continuous emissions monitoring system (CEMS) to continuously monitor the exhaust sulfur dioxide (SO2) emissions from Waste Heat Boiler - CDS Stack (EPN E-6BN) in accordance with the requirements of 40 Code of Federal Regulations (CFR) §60.13, 40 CFR Part 60, Appendix B, Performance Specification 2 and 6, for SO2, and 40 CFR Part 60, Appendix F, quality assurance procedures. (b) For days when EPN CFL (Combined Flare) is used to combust tail gas, the owner or operator shall monitor the sulfur content of the carbon black oil feedstock and produced carbon black, as well as the production rate of the carbon black, as follows:(1) measure twice per day at least four hours apart the sulfur content by weight of the carbon black oil in the feed to each production unit according to the requirements of §112.225 of this title (relating to Approved Test Methods); (2) unless the sulfur content of the carbon black produced is assumed to be zero in the calculation of SO2 emissions from the flare, for each grade of carbon black produced, measure daily the sulfur content by weight of the carbon black produced by each carbon black production unit according to the requirements of §112.225 of this title; and(3) determine hourly the amount of each grade of carbon black produced by each carbon black production unit.(c) The owner or operator shall install, calibrate, maintain, and operate one or more totalizing fuel flow meters, with an accuracy of ±5%, to continuously measure the feed rate of carbon black oil feedstock supplied to each carbon black production unit. (d) The owner or operator shall install, calibrate, maintain, and operate totalizing tail gas flow meters, with an accuracy of ±5%, to continuously measure the volumetric flow rate of tail gas to EPN CFL (Combined Flare). (e) Continuous monitoring data collected in accordance with requirements in this subsection must undergo an appropriate quality assurance and quality control process and be validated for at least 95% of the time that the monitored emission point has emissions; an owner or operator must utilize an appropriate data substitution process based on the most accurate methodology available, which is at least equivalent to engineering judgement, to obtain all missing or invalidated monitoring data for the remaining period the monitored emission point has emissions. (f) The owner or operator shall calculate SO2 emissions from EPN CFL (Combined Flare) from all production units using the equation below to demonstrate compliance with the emission requirements of §112.222 of this title (relating to Control Requirements). Attached Graphic(g) Emissions of SO2 from each EPN specified under §112.222 of this title during any block one-hour period must be calculated on a block one-hour average. (h) The owner or operator shall calculate SO2 emissions generated by each production unit using the following equation.Attached Graphic(i) Minor modifications to monitoring methods may be approved by the executive director. Monitoring methods other than those specified in this section may be used if approved by the executive director and validated by 40 CFR Part 63, Appendix A, Test Method 301. For the purposes of this subsection, substitute "executive director" in each place that Test Method 301 references "administrator." These validation procedures may be waived by the executive director or a different protocol may be granted for site-specific applications. Minor modifications that may be approved under this subsection include increases in the frequency of monitoring and the replacement of parametric monitoring with direct emissions monitoring with a CEMS provided appropriate quality assurance control, accuracy specifications, and data validation requirements are specified and no less stringent than monitoring requirements for a comparable EPN in this division.</content><note type="source"><p>Source Note: The provisions of this §112.223 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.224"><num value="112.224">§112.224</num><heading>Testing Requirements</heading><content>(a) During performance testing, the owner or operator shall operate the source at the maximum rated capacity, or as near thereto as practicable.(b) The owner or operator shall conduct additional performance testing requested by the executive director using test methods allowed in §112.225 of this title (relating to Approved Test Methods).(c) When analysis of produced carbon black, carbon black oil, and fuels, including but not limited to tail gas, is required for monitoring under §112.223 of this title (relating to Monitoring Requirements), the owner or operator shall use a test method in §112.225 of this title for the analysis.</content><note type="source"><p>Source Note: The provisions of this §112.224 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.225"><num value="112.225">§112.225</num><heading>Approved Test Methods</heading><content>(a) Tests required under §112.224 of this title (relating to Testing Requirements) must be conducted using the test methods in 40 Code of Federal Regulations (CFR) Part 60, Appendices A-1 through A-8 and Appendix B or other methods as specified in this section, except as provided in 40 CFR §60.8(b).(b) Sulfur dioxide in exhaust gases must be determined using United States Environmental Protection Agency (EPA) Test Method 6 or 6C (40 CFR, Part 60, Appendix A).(c) For flares subject to emissions limitations or standards in §112.222 of this title (relating to Control Requirements), the owner or operator shall use flare test methods and procedures in 40 CFR §60.104a as if the federal rules apply to carbon black plants.(d) Sulfur content of fuels and carbon black oil must be determined using American Society for Testing and Materials (ASTM) Method D4294 for fuel composition.(e) Sulfur content of carbon black must be determined using ASTM Test Method D1619.(f) Alternate test methods as approved by the executive director and the EPA may be used.</content><note type="source"><p>Source Note: The provisions of this §112.225 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.226"><num value="112.226">§112.226</num><heading>Recordkeeping Requirements</heading><content>The owner or operator shall maintain records in written or electronic format sufficient to demonstrate compliance with each applicable requirement for a minimum of five years, including but not limited to the following:(1) records in units of pounds per hour (lb/hr) of production of carbon black for each grade of carbon black from each carbon black production unit;(2) daily records of sulfur content by weight of the carbon black oil feedstock;(3) daily records of sulfur content by weight of the carbon black produced for each grade of carbon black produced by each carbon black production unit;(4) records of continuous carbon black oil feedstock flow rates for each carbon black production unit;(5) records of continuous tail gas volumetric flow rates to each tail gas combustion device covered by §112.222 of this title (relating to Control Requirements);(6) for each block one-hour period of operation of a carbon black production unit, the required mass balance calculations of emissions of sulfur dioxide (SO2) from each emission point number (EPN) for those sources in operation without a continuous emissions monitoring system for SO2; (7) the continuous SO2 emissions monitoring data for each EPN in operation with a CEMS for SO2; (8) documentation of any period that emission limits or standards were exceeded, and copies of exceedance reports submitted to the appropriate Texas Commission on Environmental Quality regional office; and (9) copies of test reports for tests conducted in accordance with §112.225 and associated records.</content><note type="source"><p>Source Note: The provisions of this §112.226 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.227"><num value="112.227">§112.227</num><heading>Reporting Requirements</heading><content>(a) For a source that is subject to an emissions limit in §112.222 of this title (relating to Control Requirements) and that exceeds an applicable emission limit or fails to meet a required stack parameter, the owner or operator shall submit to the Texas Commission on Environmental Quality (TCEQ) Regional Office for the area where the plant is located a report by March 31 of the year after an exceedance occurs documenting the excess emissions during the preceding calendar year, including at least the following: (1) the date that each exceedance or failure to meet a required stack parameter occurred; (2) an explanation of the exceedance or failure to meet a required stack parameter; (3) a statement of whether the exceedance or failure to meet a required stack parameter was concurrent with a maintenance, startup, or shutdown period for, or malfunction of, an affected source or control system; (4) a description of the action taken, if any; and (5) a written statement, signed by the owner or operator, certifying the accuracy and completeness of the information contained in the report. (b) The owner or operator shall submit a copy of each performance test report to the TCEQ Regional Office and any local air pollution control agency having jurisdiction for the area where the plant is located within 60 days after completion of the test.(c) After the effective date of a determination by the Environmental Protection Agency (EPA) that the Hutchinson County sulfur dioxide (SO2) nonattainment area has failed to attain the 2010 one-hour SO2 National Ambient Air Quality Standard or failed to meet reasonable further progress (RFP) pursuant to Federal Clean Air Act §179(c), 42 United States Code §7509(c), the TCEQ will notify the owner or operator of the failure to attain and that the contingency measures in this subsection are triggered. Once notification is received from the TCEQ, the owner or operator shall perform a full system audit (FSA) of all SO2 sources subject to §112.220 of this title (related to Applicability). (1) Within 90 calendar days after the date of the notification, the owner or operator shall submit the FSA, including recommended provisional SO2 emission control strategies as necessary, to the executive director of the TCEQ. (2) As part of the FSA, the owner or operator shall conduct a root cause analysis of the circumstances surrounding the cause of the determination of failure to attain or failure to meet RFP, including a review and consideration of the following: (A) for all causes of the determination of failure to attain or failure to meet RFP, at a minimum, hourly mass emissions of SO2 from each SO2 source subject to this division; and (B) for a determination of failure to attain based on ambient air monitor data or modeling data, at a minimum, the meteorological conditions recorded at the monitor or other relevant meteorological data, including the frequency distribution of wind direction temporally correlated with SO2 readings greater than 75 parts per billion at the monitor for which the EPA's determination of failure to attain was made; and any emissions event that may have occurred. The root cause analysis and associated records used to conduct the audit must consider information on the days that monitored exceedances occurred during the time period that the EPA evaluated in making the failure to attain determination.</content><note type="source"><p>Source Note: The provisions of this §112.227 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.228"><num value="112.228">§112.228</num><heading>Compliance Schedules</heading><content>(a) The owner or operator of a source subject to §112.220 of this title (relating to Applicability) shall comply with the requirements of this division no later than June 30, 2023, except for §112.222(a)(2), (b) - (e), §112.223(b), (d), (f), (h), and §112.226(1) - (6).(b) The owner or operator of a source subject to §112.220 of this title shall comply with §112.222(a)(2), (b) - (e), §112.223(b), (d), (f), (h), and §112.226(1) - (6) no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §112.228 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.230"><num value="112.230">§112.230</num><heading>Applicability</heading><content>(a) The requirements in this division apply to affected sources at the Phillips 66 Refinery, which is located in Borger, Texas at coordinates latitude 35.700000 and longitude -101.366666 in the Hutchinson County sulfur dioxide nonattainment area. Affected sources will remain subject to this division regardless of ownership, operational control, or other documentation changes.(b) Affected existing sources are designated by the source name (when possible) and emission point number (EPN) used in the site's New Source Review (NSR) permit as issued on the specified date. The specific affected sources are as follows:(1) Unit 29 FCCU Stack (EPN 29P1) in NSR Permit 9868A dated September 17, 2021;(2) Unit 40 FCCU Stack (EPN 40P1) in NSR Permit 9868A dated September 17, 2021;(3) SRU Incinerator (EPN 34I1) in NSR Permit 9868A dated September 17, 2021;(4) SCOT Unit Incinerator (EPN 43I1) in NSR Permit 9868A dated September 17, 2021 (emissions from this source during authorized maintenance, startup, and shutdown activities are included as EPN SRU_MS_CAP in the attainment demonstration modeling);(5) EPN 66FL1, EPN 66FL2, EPN 66FL3, and EPN 66FL12 in NSR Permit 80799 dated October 1, 2020 (emissions from these sources are included as EPN FLARE_R_CAP and EPN FLARE_MS_CAP in the attainment demonstration modeling);(6) EPN 12E1, EPN 12E2, EPN 12E3, EPN 12E4, EPN 12E5, EPN 12E6, EPN 12E7, EPN 7E1, EPN 7E2, EPN 7E3, EPN 7E4, EPN 7E5, EPN 7E6, EPN 10H1, EPN 19B1/19H1, EPN 19B1/19H2, EPN 19H3, EPN 19B2/19H4, EPN 19H5, EPN 19H6, EPN 2H1, EPN 2H2, EPN 22H1, EPN 26H1, EPN 28H1, EPN 29H4, EPN 34I1, EPN 36H1, EPN 40H1, EPN 4H2, EPN 42H1, EPN 42H2, EPN 43I1, EPN 50H1, EPN 5H1, EPN 6H1, EPN 7H1-4, EPN 9H1, EPN 93E1, EPN 93E2, EPN 98H1, EPN 51H1, EPN 4H1, EPN 6H3, EPN 12H1, and EPN 41H1 in NSR Permit 9868A dated September 17, 2021 (these sources included as EPN FLEX_R_CAP in the attainment demonstration modeling); and(7) EPN 12E1, EPN 12E2, EPN 12E3, EPN 12E4, EPN 12E5, EPN 12E6, EPN 12E7, EPN 7E1, EPN 7E2, EPN 7E3, EPN 7E4, EPN 7E5, EPN 7E6, EPN 10H1, EPN 19B1/19H1, EPN 19B1/19H2, EPN 19H3, EPN 19B2/19H4, EPN 19H5, EPN 19H6, EPN 2H1, EPN 2H2, EPN 22H1, EPN 26H1, EPN 28H1, EPN 29H4, EPN 36H1, EPN 40H1, EPN 4H2, EPN 42H1, EPN 42H2, EPN 50H1, EPN 5H1, EPN 6H1, EPN 7H1-4, EPN 9H1, EPN 93E1, EPN 93E2, EPN 98H1, EPN 51H1, EPN 4H1, EPN 6H3, EPN 12H1, and EPN 41H1 in NSR Permit 9868A dated September 17, 2021 (these sources are included as EPN FLEX_MS_CAP in the attainment demonstration modeling).</content><note type="source"><p>Source Note: The provisions of this §112.230 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.231"><num value="112.231">§112.231</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382), or in §101.1 or §112.1 of this title (relating to Definitions, respectively), the terms in this division have the meanings commonly used in the field of air pollution control. The following meanings apply in this division unless the context clearly indicates otherwise.(1) Block one-hour average--An hourly average of data, collected starting at the beginning of each clock hour of the day and continuing until the start of the next clock hour (e.g., from 12:00:00 to 12:59:59).(2) Continuous Monitoring--Monitoring for which readings are recorded at least once every 15 minutes.(3) Hutchinson County sulfur dioxide (SO2) nonattainment area--The portion of Hutchinson County designated by the United States Environmental Protection Agency (EPA) as nonattainment for the 2010 SO2 National Ambient Air Quality Standard, 40 Code of Federal Regulations §81.344. (4) Pipeline quality natural gas--Natural gas containing no more than 0.25 grain of hydrogen sulfide and 5 grains of total sulfur per 100 dry standard cubic feet.</content><note type="source"><p>Source Note: The provisions of this §112.231 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.232"><num value="112.232">§112.232</num><heading>Control Requirements</heading><content>(a) SRU Incinerator (EPN 34I1) emissions may not exceed 44.82 pounds per hour (lb/hr) sulfur dioxide (SO2) during normal operations;(b) SCOT Unit Incinerator (EPN 43I1) emissions may not exceed 37.00 lb/hr SO2 during normal operations.(c) During authorized maintenance, startup, and shutdown (MSS) activities, SRU Incinerator (EPN 34I1) and SCOT Unit Incinerator (EPN 43I1) may not operate simultaneously and the combined emissions from these sources may not exceed 94.00 lb/hr SO2. (d) EPN 66FL1, EPN 66FL2, EPN 66FL3, and EPN 66FL12, may only combust pipeline quality natural gas or a refinery gas stream with a maximum sulfur content of 162 parts per million by volume as hydrogen sulfide determined hourly on a three-hour rolling average basis except as provided for in 40 CFR §60.103a(h).(e) The combined emissions from EPN 66FL1, EPN 66FL2, EPN 66FL3, and EPN 66FL12 may not exceed 100.14 lb/hr SO2 during normal operations and 850.00 lb/hr SO2 during authorized MSS activities.(f) The combined emissions from EPNs listed in §112.230(b)(6) of this title may not exceed 172.09 lb/hr SO2 during normal operations.(g) The combined emissions from EPNs listed in §112.230(b)(7) of this title may not exceed 92.45 lb/hr SO2 during authorized MSS activities.(h) Unit 29 FCCU Stack (EPN 29P1) emissions may not exceed 97.37 lb/hr SO2 on a seven-day rolling average.(i) EPN 40P1 (Unit 40 FCCU Stack (EPN 40P1) emissions may not exceed 101.37 lb/hr SO2 on a seven-day rolling average.(j) Unless otherwise specified, compliance with the emission limits in this section must be calculated on a block one-hour average basis.(k) The owner or operator may request an alternate means of control (AMOC) as follows.(1) Permitting Requirements. Compliance with this subsection does not relieve any owner or operator of the responsibility to comply with the requirements of §116.110 or §116.151 of this title (relating to Applicability and New Major Source or Major Modification in Nonattainment Area Other Than Ozone, respectively) with respect to the new construction or modification of sources that may emit SO2 into the air of this state.(2) Availability of AMOC.(A) The owner or operator of any site subject to a control requirement in this subchapter may request approval of an AMOC plan using the procedures established in this subsection. The executive director shall review a submitted AMOC and may approve the AMOC plan if it is demonstrated that the plan meets all applicable criteria and procedures of this subsection. The owner or operator who submits an AMOC plan not satisfying the requirements of this section may apply for a site-specific state implementation plan revision approved by the executive director and the United States Environmental Protection Agency (EPA).(B) Application for an AMOC plan does not stay enforcement of regulations in this subchapter.(C) Any violation of an AMOC plan will be subject to enforcement action as a violation of this subchapter.(3) Criteria for Approval of AMOC Plans. An AMOC plan may be approved if it meets each of the following criteria, as applicable. (A) Except as provided for in paragraph (8) of this subsection, all sources covered by the AMOC plan must be and remain at the same site.(B) If the AMOC plan includes an increase in the lb/hr emission limit for a source subject to the control requirements in this subchapter, the AMOC plan must also include an equivalent decrease in the lb/hr emission limit for one or more sources subject to the control of this subchapter.(C) The AMOC application must include a demonstration that satisfies the following requirements.(i) The modeled impacts of all sources affected by the AMOC plan demonstrate no net increase in ground-level concentration, which for purposes of this subparagraph means no net increase in modeled off-property concentration of SO2, on a highest, first-high basis, at any receptor, i, in excess of the lesser of: (I) GLC, as defined in the following equation; or Attached Graphic(II) an applicable significant impact level for the one-hour National Ambient Air Quality Standard for SO2 (ii) Except where otherwise provided in this section, the demonstration required under this paragraph must be by means of applicable air quality models, databases, and other requirements specified in Appendix W to 40 CFR §51.1 and what was used in the modeling for the corresponding SIP revision.(D) The AMOC must be implemented and reductions created after the effective date of this rule.(E) The AMOC plan must establish control requirements and monitoring, testing, recordkeeping and reporting requirements consistent with and no less stringent than the applicable requirements of this subchapter for all sources in the plan that render the proposed control requirements enforceable.(4) Procedures for AMOC Plan Submittal.(A) The owner or operator requesting an AMOC plan shall submit a proposed AMOC plan and demonstration to the executive director; copies of such plan and demonstration must also be submitted to the appropriate regional office, any local air pollution control program with jurisdiction over the site affected by the AMOC plan, and to the EPA regional office.(B) The proposed AMOC plan must include the following information:(i) the AMOC applicant name with mailing address, site name with physical address, regulated entity number, and contact person including address and telephone number;(ii) an identification and a description of the sources involved in the AMOC plan including any applicable air permit numbers, plot plans, detailed flow diagrams, emission point numbers (EPNs), and facility identification numbers (FINs); an identification of the provisions of this subchapter that are applicable to such sources; and an identification of promulgated provisions of this subchapter that will be applicable to such sources; and a description of normal operating conditions for each source causing emissions;(iii) control requirements, which must be established for each source to make emission limits enforceable, to be applicable to each source affected by the proposed AMOC plan;(iv) a demonstration that the AMOC plan satisfies each applicable requirement of paragraph (3) of this subsection;(v) a list containing the name, address, and telephone number of any air pollution control program with jurisdiction over the site affected by the AMOC plan; and(vi) any other relevant information necessary to evaluate the merits and enforceability of the AMOC plan, as may be requested by the executive director.(C) All representations with regard to the AMOC plan, as well as any provisions attached to the AMOC plan, become conditions upon which the subsequent AMOC plan is issued. If the AMOC plan is approved by the executive director and the EPA, the owner or operator may not vary from such representation or provision if the change will cause a change in the method of control of emissions, the character of the emissions, or will result in an increase in the discharge of the various emissions. If the AMOC plan is approved by the executive director and the EPA, the owner or operator may not vary from the emission limits, control requirements, monitoring, testing, reporting, or recordkeeping requirements of an approved AMOC plan.(D) Applications to amend or revise an AMOC plan must be submitted subject to the requirements of this subsection.(5) Procedures for an AMOC Plan Approval. Upon a preliminary determination to approve or deny the proposed AMOC plan, the executive director shall, in writing, so notify the submitter of the plan, any local air pollution control program with jurisdiction over the site affected by the AMOC plan, and the EPA regional office.(A) If the executive director makes a preliminary determination to approve the AMOC plan, the notice must include a copy of the AMOC plan as preliminarily approved.(B) If the executive director makes a determination to deny the AMOC plan, the notice must include a description of the reasons for such determination of denial. This determination constitutes a final action of the executive director appealable to the Commission as provided in subparagraph (G) of this subsection.(C) Upon receipt of notice from the executive director that the AMOC plan has received preliminary approval, the AMOC applicant, at the applicant's own expense, shall cause notice of the applicant's intent to obtain an AMOC plan and of the opportunity to submit written comments to be published. The notice must be consistent with paragraph (6) of this subsection.(D) The executive director shall consider and prepare a written response to all significant and timely written comments filed in connection with an AMOC plan.(E) In response to the written comments, the executive director may modify the provisions of the AMOC plan, deny the AMOC plan, or approve the AMOC plan without changes.(F) The executive director shall send written notice of the final determination concerning each AMOC plan to the submitter of the plan, the EPA regional office, any local pollution control program with jurisdiction, and to each person who submitted timely written comments. Such notice must include the final AMOC plan provisions, a copy of the response to comments, and an announcement of the opportunity to appeal the executive director's determination to the Commission. The notice required by this subparagraph must be sent by a means evidencing receipt.(G) Any person entitled to notice under paragraph (6) of this subsection may, within 15 days of the receipt of such notice, file with the executive director an appeal of the final determination on the AMOC plan. Such appeal may be considered at the next regularly scheduled meeting of the Commission for which adequate notice may be made. Based on arguments submitted to the commission during such appeal, the Commission may remand the AMOC determination to the executive director, deny the AMOC plan, or issue the AMOC plan unchanged.(H) Within 45 days of final approval of the AMOC plan by the executive director or the Commission for an appeal, the EPA may notify the commission of the EPA's disapproval of the executive director's final decision. Such notification must be in writing and must include a statement of the reason(s) for the disapproval and a specific listing of changes to the AMOC plan needed to overcome the disapproval. Any time prior to the expiration of the 45-day period, the EPA may notify the executive director that no disapproval is forthcoming. Upon receipt of a timely EPA disapproval, the executive director shall void or revise the AMOC plan and reissue the notice as required by paragraph (6) of this subsection.(I) If no appeal of the executive director's decision to approve the AMOC plan is filed pursuant to subparagraph (G) of this paragraph, the AMOC plan becomes effective upon the acceptance of the plan by the EPA as described in subparagraph (K) of this paragraph. (J) If an appeal of the executive director's decision is filed, the AMOC plan becomes effective upon the latter of the acceptance of the AMOC plan by the Commission or the acceptance of the AMOC plan by the EPA.(K) EPA acceptance is defined as explicit approval of the AMOC plan by the EPA, notification by the EPA to the executive director that no EPA disapproval is forthcoming, or failure of the EPA to file notice of disapproval within 45 days after the executive director's final decision to approve the AMOC plan.(6) Public Notice Format.(A) Public notice must be published in the public notice section of two successive issues of a newspaper of general circulation in or closest to the municipality in which the site affected by the AMOC plan is located. (B) Public notice must contain the following information:(i) the AMOC plan application number assigned by the executive director;(ii) the AMOC applicant's name;(iii) the type of source and site;(iv) a description of the location of the site;(v) a brief description of the AMOC plan;(vi) the executive director's preliminary determination to approve the plan;(vii) the locations and availability of copies of the proposed AMOC plan, related documentation, and the executive director's preliminary analysis of the plan (including the Austin and appropriate regional offices, any local pollution control program with jurisdiction over the site affected by the AMOC plan, and the EPA regional office);(viii) an announcement of the opportunity to submit written comments on the AMOC plan;(ix) the length of the public comment period, which extends to at least 30 days after the final publication of the notice;(x) the procedure for submission of written public comments concerning the proposed AMOC plan; and(xi) the name, address, and phone number of the Agency's regional office to be contacted for further information.(C) The executive director may not take final action on the AMOC plan until the owner or operator who submitted the AMOC plan has provided proof of adequate notice to the executive director, the EPA, and any local pollution control program with jurisdiction.(7) Review of Approved AMOC Plans and Termination of AMOC Plans.(A) For the purposes of this subsection, compliance date means the date by which a source must comply with new or modified sections of this subchapter.(B) Unless revised to reflect new regulatory requirements, an AMOC plan becomes void on the compliance date specified for a new or modified section of this subchapter affecting a source subject to an AMOC plan.(C) The holder of an AMOC plan shall comply with the requirements of this subchapter if the AMOC plan becomes void.(D) Upon final approval of an AMOC plan, the owner or operator of the sources affected by the plan shall keep a copy of the plan on the site affected by the plan and shall make the plan available upon request to representatives of the executive director, the EPA, or any local air pollution control agency having jurisdiction in the area.(E) Upon request, each holder of an AMOC plan shall submit to the executive director a demonstration that the plan continues to meet all applicable criteria of this subsection.(F) An AMOC holder is responsible for obtaining a new AMOC plan prior to the compliance date of any new or modified regulation of this subchapter that affects a source subject to an AMOC plan.(8) Inclusion of Contiguous Properties. Notwithstanding paragraph (3)(A) of this subsection, an AMOC plan may cover multiple sources operated on contiguous properties, provided that separate requests for plan approval are submitted by each owner or operator subject to a control requirement under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §112.232 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.233"><num value="112.233">§112.233</num><heading>Monitoring Requirements</heading><content>(a) Separately for 29 FCCU Stack (EPN 29P1) and 40 FCCU Stack (EPN 40P1), the owner or operator shall install, operate, calibrate, and maintain a continuous emissions monitoring system (CEMS) as specified in 40 Code of Federal Regulations (CFR) §60.105a(g)(1), (2) and (5) regardless of whether these provisions otherwise apply or provide exemptions for certain activities; use an analyzer with a minimum analyzer accuracy of plus or minus (±)2.5%, a dedicated totalizing gas flow measurement system with a minimum measurement accuracy of ±5%, and temperature monitor with a minimum accuracy of ±1%; convert data from all monitoring devices to a common concentration, flow, pressure, and temperature measurement basis and calculate and record 15-minute and subsequent block one-hour average sulfur dioxide (SO2) emissions.(b) Separately for SRU Incinerator (EPN 34I1) and SCOT Unit Incinerator (EPN 43I1), the owner or operator shall install, operate, calibrate, and maintain a CEMS as specified in 40 Code of Federal Regulations (CFR) §60.106a(a), regardless of whether these provisions otherwise apply; use an analyzer with an accuracy of plus or minus (±)2.5%, a dedicated totalizing gas flow measurement system with an accuracy of ±5%, and temperature monitor with an accuracy of ±1%; convert data from all monitoring devices to a common concentration, flow, pressure, and temperature measurement basis and calculate and record 15-minute and subsequent block one-hour average SO2 emissions. (c) The owner or operator shall install, operate, calibrate, and maintain dedicated instrumentation according to the manufacturers' specifications to continuously and separately monitor the flow rate and the total sulfur concentration of the inlet gas streams of EPN 66FL1, EPN 66FL2, EPN 66FL3, and EPN 66FL12, in accordance with the 40 CFR §60.107a(e) and (f)(1), regardless of whether these provisions otherwise apply or provide an exemption for any flare activities, as follows: (1) monitor the total volumetric flow rate of gases routed to each flare using a separate dedicated totalizing gas flow meter with an accuracy of ±5%;(2) monitor the temperature of gases routed to each flare using a separate temperature measurement device with an accuracy of ±1%; and(3) monitor the sulfur content of the combined inlet flare gas stream as follows:(A) using a separate dedicated analyzer capable of accurately measuring and recording total sulfur (including SO2, hydrogen sulfide (H2S), and organic sulfur compounds levels) with an accuracy of ±5% on a continuous basis, the sulfur concentration must be determined in accordance 40 CFR §60.107a(e)(1) regardless of applicability or exemptions, and determine hourly SO2 emissions using the following equation; orAttached Graphic(B) using a separate dedicated analyzer capable of accurately measuring and recording H2S to an accuracy of ±5% on a continuous basis, determine the H2S concentration in the flared gas stream, derive an inlet flare gas total sulfur concentration for each monitored hourly H2S concentration in accordance 40 CFR §60.107a(e)(2) methodology regardless of applicability or exemptions, and calculate the SO2 emissions from each flare for each operating hour using the following equation:Attached Graphic(d) The owner or operator shall continuously monitor the flow rate, temperature, and total sulfur or H2S concentration in the gases combusted by each affected EPN listed in §112.230(b)(6) and (7) of this title (relating to Applicability), in accordance with 40 CFR §60.107a(a), (e) and (f)(1), except for the SRU Incinerator (EPN 34I1) and SCOT SRU Incinerator (EPN 43I1) that must be monitored under §112.233(b), as follows: (1) monitor the total volumetric fuel flow to each combustion device using a separate dedicated totalizing gas flow meter with an accuracy of ±5%; each fuel flow meter must be installed, calibrated, maintained, and operated per the manufacturer's recommendations and specifications;(2) monitor the fuel temperature using a separate dedicated temperature monitor with an accuracy of ±1%; that is installed, calibrated, maintained, and operated according to the manufacturer's recommendations and specifications; if the fuel temperature does not vary by more than ±1% throughout a common fuel supply system, the fuel temperature for each affected source supplied by the fuel supply system may be monitored at a single location; and(3) monitor the fuel sulfur content either directly with a total sulfur analyzer or by monitoring the surrogate H2S concentration as follows:(A) if a total sulfur analyzer is used, calculate the emissions using the following equation; orAttached Graphic(B) if the H2S concentration is monitored as a surrogate for the total sulfur content, calculate the SO2 emissions as follows: (i) collect at least one sample each month; the frequency of sampling may be reduced to no less than one time per calendar quarter if three consecutive monthly samples indicate that H2S makes up 90.0 mole % or more of the total sulfur compounds in the fuel gas sample, and shall revert from quarterly to monthly when quarterly sample sulfur compounds consist of less than 90.0 mole % H2S;(ii) have the samples analyzed for total sulfur and H2S concentrations;(iii) use the following equation to calculate total SO2 emissions.Attached Graphic(iv) sum the emissions for each affected source in §112.230(b)(6) of this title as calculated in §112.233(b) and (d) of this section to determine compliance with the total EPN FLEX_R_CAP SO2 hourly emission limit; and(v) sum the emissions for each affected source in §112.230(b)(7) of this title as calculated in §112.233(d) of this title to determine compliance with the total EPN FLEX_MS_CAP SO2 hourly emissions limit.(e) Continuous monitoring data collected in accordance with requirements in this section must undergo an appropriate quality assurance and quality control process and be validated for at least 95% of the time that the monitored emission point has emissions; an owner or operator must utilize an appropriate data substitution process based on the most accurate methodology available, which is at least equivalent to engineering judgement, to obtain all missing or invalidated monitoring data for the remaining period the monitored emission point has emissions.(f) Minor modifications to monitoring methods may be approved by the executive director. Monitoring methods other than those specified in this section may be used if approved by the executive director and validated by 40 CFR Part 63, Appendix A, Test Method 301. For the purposes of this subsection, substitute "executive director" in each place that Test Method 301 references "administrator." These validation procedures may be waived by the executive director or a different protocol may be granted for site-specific applications. Minor modifications that may be approved under this subsection include increases in the frequency of monitoring and the replacement of parametric monitoring with direct emissions monitoring with a CEMS provided appropriate quality assurance control, accuracy specifications, and data validation requirements are specified and no less stringent than monitoring requirements for a comparable EPN in this division.</content><note type="source"><p>Source Note: The provisions of this §112.233 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.234"><num value="112.234">§112.234</num><heading>Testing Requirements</heading><content>(a) Perform continuous emissions monitoring system (CEMS) relative accuracy tests in accordance with 40 Code of Federal Regulations (CFR) §60.105a(g)(2) for the Unit 29 FCCU Stack (EPN 29P1) and the Unit 40 FCCU Stack (EPN 40P1) and 40 CFR §60.106a(1)(iii) for the SRU Incinerator (EPN 34I1) and the SCOT SRU Incinerator (EPN 43I1).(b) Perform initial and subsequent testing of monitoring devices required by §112.233 of this title (relating to Monitoring Requirements) in accordance with the manufacturer's specifications to ensure that the required monitoring instrumentation is calibrated and functional. Initial testing must be completed by the compliance date in §112.238 of this title (relating to Compliance Schedules). If a monitoring device has been previously tested in accordance with the manufacturer's specifications and a record is available to document proper procedures were followed, then an owner or operator is not required to repeat the initial testing again under §112.234(b) provisions.(c) Conduct additional performance testing, if requested by the executive director, in compliance with 40 CFR §60.104a to demonstrate compliance with applicable emission limits or standards. The notification requirements of 40 CFR §60.8(d) apply to each initial performance test and to each subsequent performance test required by the executive director, except for performance tests conducted for the purpose of obtaining supplemental data because of continuous monitoring system breakdowns, repairs, calibration checks, or zero and span adjustments. All performance tests must be conducted using test methods allowed in §112.235 of this title (relating to Approved Test Methods).(d) When analysis of fuels, including but not limited to refinery gas, is required under §112.233 of this title, the owner or operator shall use a test method in §112.235 of this title for the analysis.</content><note type="source"><p>Source Note: The provisions of this §112.234 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.235"><num value="112.235">§112.235</num><heading>Approved Test Methods</heading><content>(a) Tests required under §112.234 of this title (related to Testing Requirements) must be conducted using the test methods in 40 Code of Federal Regulations (CFR) Part 60, Appendices A-1 through A-8 and Appendix B or other methods as specified in this section, except as provided in 40 CFR §60.8(b).(b) Sulfur dioxide in exhaust gases must be determined using United States Environmental Protection Agency (EPA) Test Method 6 or 6C (40 CFR, Part 60, Appendix A).(c) For flares subject to emissions limitations or standards in §112.232 of this title (relating to Control Requirements), the owner or operator shall use flare test methods and procedures in 40 CFR §60.104a.(d) Fuel and waste gas sulfur content must be determined using American Society for Testing and Materials (ASTM) Method D6667 (Determination of Total Volatile Sulfur in Gaseous Hydrocarbons), ASTM Method D1945 (Standard Test Method for Analysis of Natural Gas by Gas Chromatography), EPA Method 15A or 16A of Appendix A to 40 CFR Part 60, ASTM Method D4468, or ASTM Method D5504 if it is conducted in a manner that analyzes all sulfur-containing compounds present.(e) Alternate test methods as approved by the executive director and the EPA may be used.</content><note type="source"><p>Source Note: The provisions of this §112.235 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.236"><num value="112.236">§112.236</num><heading>Recordkeeping Requirements</heading><content>The owner or operator shall maintain records in written or electronic format sufficient to demonstrate compliance with each applicable requirement for a minimum of five years, including but not limited to:(1) all monitoring data and sampling analyses, including but not limited to continuous emissions monitoring system flow rate and sulfur composition data, used to quantify emissions;(2) the methodology and any associated calculations employed to determine compliance;(3) documentation of any period that emission limits or standards were exceeded, and exceedance reports submitted to the appropriate Texas Commission on Environmental Quality regional office; and(4) copies of test reports for tests conducted in accordance with §112.235 and associated records.</content><note type="source"><p>Source Note: The provisions of this §112.236 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.237"><num value="112.237">§112.237</num><heading>Reporting Requirements</heading><content>(a) For a source that is subject to an emissions limit in §112.232 of this title (relating to Control Requirements) and that exceeds an applicable emission limit or fails to meet a required stack parameter, the owner or operator shall submit to the Texas Commission on Environmental Quality (TCEQ) Regional Office for the area where the plant is located a report by March 31 of the year after an exceedance occurs documenting the excess emissions during the preceding calendar year, including at least the following: (1) the date that each exceedance or failure to meet a required stack parameter occurred; (2) an explanation of the exceedance or failure to meet a required stack parameter; (3) a statement of whether the exceedance or failure to meet a required stack parameter was concurrent with a maintenance, startup, or shutdown period for, or malfunction of, an affected source or control system; (4) a description of the action taken, if any; and (5) a written statement, signed by the owner or operator, certifying the accuracy and completeness of the information contained in the report. (b) The owner or operator shall submit a copy of each performance test report to the TCEQ Regional Office and any local air pollution control agency having jurisdiction for the area where the plant is located within 60 days after completion of the test.(c) After the effective date of a determination by the Environmental Protection Agency (EPA) that the Hutchinson County sulfur dioxide (SO2) nonattainment area has failed to attain the 2010 one-hour SO2 National Ambient Air Quality Standard or failed to meet reasonable further progress (RFP) pursuant to Federal Clean Air Act §179(c), 42 United States Code §7509(c), the TCEQ will notify the owner or operator of the failure to attain and that the contingency measures in this subsection are triggered. Once notification is received from the TCEQ, the owner or operator shall perform a full system audit (FSA) of all SO2 sources subject to §112.230 of this title (relating to Applicability). (1) Within 90 calendar days after the date of the notification, the owner or operator shall submit the FSA, including recommended provisional SO2 emission control strategies as necessary, to the executive director of the TCEQ. (2) As part of the FSA, the owner or operator shall conduct a root cause analysis of the circumstances surrounding the cause of the determination of failure to attain or failure to meet RFP, including a review and consideration of the following: (A) for all causes of the determination of failure to attain or failure to meet RFP, at a minimum, hourly mass emissions of SO2 from each SO2 source subject to this division; and (B) for a determination of failure to attain based on ambient air monitor data or modeling data, at a minimum, the meteorological conditions recorded at the monitor or other relevant meteorological data, including the frequency distribution of wind direction temporally correlated with SO2 readings greater than 75 parts per billion at the monitor for which the EPA's determination of failure to attain was made; and any emissions event that may have occurred. The root cause analysis and associated records used to conduct the audit must consider information on the days that monitored exceedances occurred during the time period that the EPA evaluated in making the failure to attain determination.</content><note type="source"><p>Source Note: The provisions of this §112.237 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.238"><num value="112.238">§112.238</num><heading>Compliance Schedules</heading><content>The owner or operator of a source subject to §112.230 of this title (relating to Applicability) shall comply with the requirements of this division no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §112.238 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.240"><num value="112.240">§112.240</num><heading>Applicability</heading><content>(a) The requirements in this division apply to affected sources at the Tokai Borger Carbon Black Plant site, which is located at 9455 FM 1559 in Borger, Texas in the Hutchinson County sulfur dioxide nonattainment area. Affected sources will remain subject to this division regardless of ownership, operational control, or other documentation changes.(b) Affected existing sources are designated by the source name and emission point number (EPN) used in the site's New Source Review (NSR) permit as issued on the specified date. Applicable control devices to be authorized and constructed are similarly designated by the EPN that the company used to designate the future unit in the attainment demonstration modeling, with an appropriate name also used in the rules. The specific affected sources are as follows:(1) Boiler Stacks, Boiler 1 and 2 Common Stack (EPN 119) in NSR Permit 1867A dated July 21, 2020;(2) Plant 1 Dryer Stack (EPN 121) designated in NSR Permit 1867A dated July 21, 2020;(3) Plant 2 Dryer Stack (EPN 122) in NSR Permit 1867A dated July 21, 2020;(4) Plant 1 Number 1 and Number 2 Dryer Purge Stack (EPN 1) in NSR Permit 1867A dated July 21, 2020;(5) Plant 1 Number 3 and Number 4 Dryer Purge Stack (EPN 3) in NSR Permit 1867A dated July 21, 2020;(6) EPN Flare-1, EPN Flare-2, EPN Flare-3 and EPN Flare-4, which are the four flares for the carbon black reactors, designated in NSR Permit 1867A dated July 21, 2020; and(7) New Flare (EPN New Flare) if authorized and constructed to replace all existing flares (EPN Flare-1, EPN Flare-2, EPN Flare-3, and EPN Flare-4) for the carbon black reactors.</content><note type="source"><p>Source Note: The provisions of this §112.240 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.241"><num value="112.241">§112.241</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382), or in §101.1 or §112.1 of this title (relating to Definitions, respectively), the terms in this division have the meanings commonly used in the field of air pollution control. The following meanings apply in this division unless the context clearly indicates otherwise.(1) Block one-hour average--An hourly average of data, collected starting at the beginning of each clock hour of the day and continuing until the start of the next clock hour (e.g., from 12:00:00 to 12:59:59).(2) Continuous Monitoring--Monitoring for which readings are recorded at least once every 15 minutes.(3) Hutchinson County sulfur dioxide (SO2) nonattainment area--The portion of Hutchinson County designated by the United States Environmental Protection Agency (EPA) as nonattainment for the 2010 SO2 National Ambient Air Quality Standard, 40 Code of Federal Regulations §81.344, as published on March 26, 2021.(4) Production unit--The carbon black oil furnace or group of carbon black oil furnaces, dryers or groups of dryers, and any ancillary units used in the manufacture of carbon black and producing tail gas.(5) Tail gas--The exit gaseous stream of a carbon black oil furnace consisting of water vapor, carbon monoxide, hydrogen, pyrolysis by-products, and reduced and organic sulfur compounds as a result of the manufacture of carbon black.</content><note type="source"><p>Source Note: The provisions of this §112.241 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.242"><num value="112.242">§112.242</num><heading>Control Requirements</heading><content>(a) Hourly mass emissions of sulfur dioxide (SO2), on a block one-hour average, may not exceed the following when Boilers 1 or 2, singly or together, are operating:(1) 109.10 lb/hr SO2 for Boiler Stacks, Boiler 1 and 2 Common Stack (EPN 119);(2) 441.40 lb/hr SO2 for Plant 1 Dryer Stack (EPN 121); and(3) 595.60 lb/hr SO2 for Plant 2 Dryer Stack (EPN 122). (b) If the new flare (EPN New Flare) is not authorized, constructed, and operated, hourly mass emissions of SO2, on a block one-hour average, may not exceed the following when neither Boiler 1 nor 2 is operating:(1) 420.00 lb/hr SO2 for Plant 1, Unit 1 Primary Bag Filter Flare (EPN Flare-1);(2) 0.00 lb/hr SO2 for Boiler Stacks, Boiler 1 and 2 Common Stack (EPN 119);(3) 250.00 lb/hr SO2 for Plant 1 Dryer Stack (EPN 121); and(4) 400.00 lb/hr SO2 for Plant 2 Dryer Stack (EPN 122).(c) If New Flare (EPN New Flare) is authorized, constructed, and operated, hourly mass emissions of SO2, on a block one-hour average, may not exceed the following when neither Boiler 1 nor 2 is operating:(1) 806.60 lb/hr SO2 for New Flare (EPN New Flare);(2) 0.00 lb/hr SO2 for the Boiler Stacks, Boiler 1 and 2 Common Stack (EPN 119);(3) 272.50 lb/hr SO2 for Plant 1 Dryer Stack (EPN 121); and(4) 436.00 lb/hr SO2 for Plant 2 Dryer Stack (EPN 122). (d) Tail gas may only be combusted in a source whose emissions are routed to the Boiler 1 and 2 Common Stack (EPN 119), Plant 1 Dryer Stack (EPN 121), Plant 2 Dryer Stack (EPN 122), Plant 1, Unit 1 Primary Bag Filter Flare (EPN Flare-1), or New Flare (EPN New Flare). (e) Sulfur or sulfur containing compounds may not be routed to EPN Flare-2, EPN Flare-3, and EPN Flare-4 on or after the compliance date in §112.248 of this title (relating to Compliance Schedules). (f) If New Flare (EPN New Flare) is authorized, constructed, and operated, sulfur or sulfur containing compounds may not be routed to the Plant 1, Unit 1 Primary Bag Filter Flare (EPN Flare-1) on or after the compliance date in §112.248 of this title. (g) Sulfur or sulfur containing compounds may not be routed to the Plant 1 Number 1 and Number 2 Dryer Purge Stack (EPN 1) and Plant 1 Number 3 and Number 4 Dryer Purge Stack (EPN 3) on or after the compliance date in §112.248 of this title. (h) If the New Flare (EPN New Flare) is authorized, constructed, and operated, it must meet the following parameters:(1) tail gas may be routed to the New Flare (EPN New Flare) only when neither Boiler 1 nor 2 is operating; and(2) the New Flare (EPN New Flare) must be constructed with a stack height of 60.35 meters and must be located at Universal Transverse Mercator (UTM) coordinates UTM East Meters 279488 and UTM North Meters 3949627 in UTM Zone 14. (i) If the New Flare (EPN New Flare) is not authorized, constructed, and operated, tail gas may be routed to the Plant 1, Unit 1 Primary Bag Filter Flare (EPN Flare-1) only when neither Boiler 1 nor 2 is operating.(j) The owner or operator may request an alternate means of control under the provisions of §112.232(k) of this title (relating to Control Requirements).</content><note type="source"><p>Source Note: The provisions of this §112.242 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.243"><num value="112.243">§112.243</num><heading>Monitoring Requirements</heading><content>(a) The owner or operator shall install, calibrate, and maintain a continuous emissions monitoring system (CEMS) to monitor exhaust sulfur dioxide (SO2) from the Boiler Stacks, Boiler 1 and 2 Common Stack (EPN 119) in accordance with the requirements of 40 Code of Federal Regulations (CFR) §60.13, 40 CFR Part 60, Appendix B, Performance Specification 2 and 6, for SO2, and 40 CFR Part 60, Appendix F, quality assurance procedures. (b) The owner or operator shall monitor the sulfur content of the carbon black oil feedstock and produced carbon black, as well as the production rate of the carbon black, as follows:(1) measure twice daily at least four hours apart the sulfur content by weight of the carbon black oil in the feed to each production unit according to the requirements of §112.245 of this title (relating to Approved Test Methods); (2) for each grade of carbon black produced, measure daily the sulfur content by weight of the carbon black produced by each carbon black production unit according to the requirements of §112.245 of this title; and(3) determine hourly the amount of each grade of carbon black produced by each carbon black production unit. (c) The owner or operator shall install, calibrate, maintain, and operate one or more totalizing fuel flow meters, with an accuracy of ±5%, to continuously measure the feed rate of carbon black oil feedstock supplied to each carbon black production unit. (d) The owner or operator shall install, calibrate, maintain, and operate totalizing tail gas flow meters, with an accuracy of ±5%, to continuously measure the volumetric flow rate of tail gas to each tail gas combustion device covered under §112.242 of this title (relating to Control Requirements). (e) Continuous monitoring data collected in accordance with requirements in this subsection must undergo an appropriate quality assurance and quality control process and be validated for at least 95% of the time that the monitored emission point has emissions; an owner or operator must utilize an appropriate data substitution process based on the most accurate methodology available, which is at least equivalent to engineering judgment, to obtain all missing or invalidated monitoring data for the remaining period the monitored emission point has emissions. (f) The owner or operator shall calculate hourly SO2 emissions from the Plant 1 Dryer Stack (EPN 121) using the following equation. Attached Graphic(g) The owner or operator shall calculate hourly SO2 emissions from the Plant 2 Dryer Stack (EPN 122) using the following equation.Attached Graphic(h) The owner or operator shall calculate hourly SO2 emissions from the New Flare (EPN New Flare) or Plant 1, Unit 1 Primary Bag Filter Flare (EPN Flare-1), as applicable using the following equation.Attached Graphic(i) Emissions of SO2 from each EPN specified under §112.242 of this title during any block one-hour period must be determined on a block one-hour average. (j) The owner or operator shall calculate total SO2 emissions generated by each production unit using the following equation.Attached Graphic(k) In lieu of the monitoring requirements of §112.243(b) - (d) of this section and §112.243(f) - (j) of this section, the owner or operator may install, operate, calibrate, and maintain a continuous emissions monitoring system to monitor exhaust sulfur dioxide (SO2) from Plant 1 Dryer Stack (EPN 121) or Plant 2 Dryer Stack (EPN 122) in accordance with the requirements of 40 Code of Federal Regulations (CFR) §60.13, 40 CFR Part 60, Appendix B, Performance Specification 2 and 6, for SO2, and 40 CFR Part 60, Appendix F, quality assurance procedures. If a CEMS is not used to monitor the emissions from both EPNs, monitoring requirements in §112.243(b) - (d) of this section and §112.243(f) - (j) of this section continue to apply to EPNs without a CEMS.(l) Minor modifications to monitoring methods may be approved by the executive director. Monitoring methods other than those specified in this section may be used if approved by the executive director and validated by 40 CFR Part 63, Appendix A, Test Method 301. For the purposes of this subsection, substitute "executive director" in each place that Test Method 301 references "administrator." These validation procedures may be waived by the executive director or a different protocol may be granted for site-specific applications. Minor modifications that may be approved under this subsection include increases in the frequency of monitoring provided appropriate quality assurance control, accuracy specifications, and data validation requirements are specified and no less stringent than monitoring requirements for a comparable EPN in this division.</content><note type="source"><p>Source Note: The provisions of this §112.243 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.244"><num value="112.244">§112.244</num><heading>Testing Requirements</heading><content>(a) The owner or operator shall perform an initial demonstration of compliance test on the emission points specified in §112.242(a) - (c) of this title (relating to Control Requirements) for sulfur dioxide, while the associated sources are firing tail gas, except for flares, by the compliance date in §112.248 of this title (relating to Compliance Schedules).(b) The owner or operator shall use the methods provided in §112.245 of this title (relating to Approved Test Methods) for the initial demonstration of compliance test required under subsection (a) of this section.(c) During performance testing, the owner or operator shall operate the source at the maximum rated capacity, or as near thereto as practicable.(d) The owner or operator shall conduct additional performance testing at least every five years and when requested by the executive director using test methods allowed in §112.245 of this title.(e) When analysis of produced carbon black, carbon black oil, and fuels, including but not limited to tail gas, is required for monitoring under §112.243 of this title (relating to Monitoring Requirements), the owner or operator shall use a test method in §112.245 of this title for the analysis.</content><note type="source"><p>Source Note: The provisions of this §112.244 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.245"><num value="112.245">§112.245</num><heading>Approved Test Methods</heading><content>(a) Tests required under §112.244 of this title (relating to Testing Requirements) must be conducted using the test methods in 40 Code of Federal Regulations (CFR) Part 60, Appendices A-1 through A-8 and Appendix B or other methods as specified in this section, except as provided in §60.8(b).(b) Sulfur dioxide in exhaust gases must be determined using United States Environmental Protection Agency (EPA) Test Method 6 or 6C (40 CFR, Part 60, Appendix A).(c) For flares subject to emissions limitations or standards in §112.242 of this title (relating to Control Requirements), the owner or operator shall use flare test methods and procedures in 40 CFR §60.104a as if the federal rules apply to carbon black plants.(d) Sulfur content of fuels and carbon black oil must be determined using American Society for Testing and Materials (ASTM) Method D4294 for fuel composition.(e) Sulfur content of carbon black must be determined using ASTM Test Method D1619.(f) Alternate test methods as approved by the executive director and the EPA may be used.</content><note type="source"><p>Source Note: The provisions of this §112.245 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.246"><num value="112.246">§112.246</num><heading>Recordkeeping Requirements</heading><content>The owner or operator shall maintain records in written or electronic format sufficient to demonstrate compliance with each applicable requirement for a minimum of five years, including but not limited to:(1) records in units of pounds per hour (lb/hr) of production of carbon black for each grade of carbon black from each carbon black production unit;(2) twice daily records of sulfur content by weight of the carbon black oil feedstock;(3) daily records of sulfur content by weight of the carbon black produced for each grade of carbon black produced by each carbon black production unit;(4) records of continuous carbon black oil feedstock flow rates for each carbon black production unit;(5) records of continuous tail gas volumetric flow rates to each tail gas combustion device from each production unit covered by §112.242 of this title (relating to Control Requirements); (6) for each block one-hour period of operation of a carbon black production unit, the required mass balance calculations of emissions of sulfur dioxide (SO2) from each EPN for those sources in operation without a continuous emissions monitoring system (CEMS) for SO2; (7) the continuous emissions monitoring data of emissions of SO2 for each EPN in operation with a CEMS for SO2; (8) documentation of any period that emission limits or standards were exceeded, and copies of exceedance reports submitted to the appropriate Texas Commission on Environmental Quality regional office; and (9) copies of test reports for tests conducted in accordance with §112.244 of this title (relating to Testing Requirements) and associated records.</content><note type="source"><p>Source Note: The provisions of this §112.246 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.247"><num value="112.247">§112.247</num><heading>Reporting Requirements</heading><content>(a) For a source that is subject to an emissions limit in §112.242 of this title (relating to Control Requirements) and that exceeds an applicable emission limit or fails to meet a required stack parameter, the owner or operator shall submit to the Texas Commission on Environmental Quality (TCEQ) Regional Office for the area where the plant is located a report by March 31 of the year after an exceedance occurs documenting the excess emissions during the preceding calendar year, including at least the following: (1) the date that each exceedance or failure to meet a required stack parameter occurred; (2) an explanation of the exceedance or failure to meet a required stack parameter; (3) a statement of whether the exceedance or failure to meet a required stack parameter was concurrent with an authorized maintenance, startup, or shutdown activity for, or malfunction of, an affected source or control system; (4) a description of the action taken, if any; and (5) a written statement, signed by the owner or operator, certifying the accuracy and completeness of the information contained in the report. (b) The owner or operator shall submit a copy of each performance test report to the TCEQ Regional Office and any local air pollution control agency having jurisdiction for the area where the plant is located within 60 days after completion of the test.(c) After the effective date of a determination by the Environmental Protection Agency (EPA) that the Hutchinson County sulfur dioxide (SO2) nonattainment area has failed to attain the 2010 one-hour SO2 National Ambient Air Quality Standard or failed to meet reasonable further progress (RFP) pursuant to federal Clean Air Act §179(c), 42 United States Code §7509(c), the TCEQ will notify the owner or operator of the failure to attain and that the contingency measures in this subsection are triggered. Once notification is received from the TCEQ, the owner or operator shall perform a full system audit (FSA) of all SO2 sources subject to §112.240 of this title (relating to Applicability). (1) Within 90 calendar days after the date of the notification, the owner or operator shall submit the FSA, including recommended provisional SO2 emission control strategies as necessary, to the executive director of the TCEQ. (2) As part of the FSA, the owner or operator shall conduct a root cause analysis of the circumstances surrounding the cause of the determination of failure to attain or failure to meet RFP, including a review and consideration of the following: (A) for all causes of the determination of failure to attain or failure to meet RFP, at a minimum, hourly mass emissions of SO2 from each SO2 source subject to this division; and (B) for a determination of failure to attain based on ambient air monitor data or modeling data, at a minimum, the meteorological conditions recorded at the monitor or other relevant meteorological data, including the frequency distribution of wind direction temporally correlated with SO2 readings greater than 75 parts per billion at the monitor for which the EPA's determination of failure to attain was made; and any emissions event that may have occurred. The root cause analysis and associated records used to conduct the audit must consider information on the days that monitored exceedances occurred during the time period that the EPA evaluated in making the failure to attain determination.</content><note type="source"><p>Source Note: The provisions of this §112.247 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scF/s112.248"><num value="112.248">§112.248</num><heading>Compliance Schedules</heading><content>The owner or operator of a source subject to §112.240 of this title (relating to Applicability) shall comply with the requirements of this division no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §112.248 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c112/scG"><num value="G">SUBCHAPTER G</num><heading>REQUIREMENTS IN THE NAVARRO COUNTY NONATTAINMENT AREA</heading><section identifier="/us/state/tx/tac/t30/p1/c112/scG/s112.300"><num value="112.300">§112.300</num><heading>Applicability</heading><content>(a) The requirements in this subchapter apply to affected sources at the Arcosa LWS LLC Lightweight Streetman plant, which is located at 14885 South Interstate Highway 45 East in Streetman, Texas in the Navarro County sulfur dioxide (SO2) nonattainment area. Affected sources will remain subject to this subchapter regardless of ownership, operational control, or other documentation changes. (b) The affected source is designated by source name and emission point number (EPN) used in the site's New Source Review (NSR) permit as issued on the specified date. The affected source is Kiln Scrubber Stack (EPN E3-1) in New Source Review Permit 5337 dated May 29, 2020. This designation must continue to be used as the EPN for the lightweight aggregate kiln or any control device for SO2 regardless of any changes made to the lightweight aggregate kiln or its control system.</content><note type="source"><p>Source Note: The provisions of this §112.300 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scG/s112.301"><num value="112.301">§112.301</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382), or in §101.1 or §112.1 of this title (relating to Definitions, respectively), the terms in this subchapter have the meanings commonly used in the field of air pollution control. The following meanings apply in this subchapter unless the context clearly indicates otherwise.(1) Continuous Monitoring--Monitoring for which readings are recorded at least once every 15 minutes.(2) Lightweight aggregate kiln--A rotary kiln used to produce lightweight aggregate material. Any calciner or other associated devices used with the kiln for production are included as part of the kiln.(3) Lightweight aggregate material--A manufactured aggregate produced by expanding or pelletizing shale, clay, or slate in a rotary kiln that meets the standards of ASTM Cl25, ASTM C330, and/or other similar industry association standards and definitions. (4) Navarro County sulfur dioxide (SO2) nonattainment area--The portion of Navarro County designated by the United States Environmental Protection Agency (EPA) as nonattainment for the 2010 SO2 National Ambient Air Quality Standard, 40 Code of Federal Regulations §81.344.</content><note type="source"><p>Source Note: The provisions of this §112.301 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scG/s112.302"><num value="112.302">§112.302</num><heading>Control Requirements</heading><content>(a) The Kiln Scrubber Stack (EPN E3-1) and the associated lightweight aggregate kiln must emit all exhaust gases through a stack that is at least 36.576 meters tall and must be located within a rectangle designated as having its corners at Universal Transverse Mercator (UTM) coordinates UTM East Meters 750646.0 and UTM North Meters 3533975.0, UTM East Meters 750676.0 and UTM North Meters 3533975.0, UTM East Meters 750646.0 and UTM North Meters 3533955.0, and UTM East Meters 750676.0 and UTM North Meters 3533955.0, in UTM Zone 14. A bypass to the lightweight aggregate kiln or its control device may not be installed unless it vents through this stack. (b) Emissions from the Kiln Scrubber Stack (EPN E3-1) may not exceed 222.00 pounds per hour (lb/hr) sulfur dioxide, the temperature of the exhaust gas exiting from the stack may not fall below 117 degrees Fahrenheit, and the velocity of the exhaust gas exiting from the stack may not drop below 42.5 feet per second.(c) The owner or operator may request an alternate means of control (AMOC) as follows: (1) Permitting Requirements. Compliance with this subsection does not relieve any owner or operator of the responsibility to comply with the requirements of §116.110 or §116.151 of this title (relating to Applicability and New Major Source or Major Modification in Nonattainment Area Other Than Ozone, respectively) with respect to the new construction or modification of sources that may emit SO2 into the air of this state.(2) Availability of AMOC.(A) The owner or operator of any site subject to a control requirement in this subchapter may request approval of an AMOC plan using the procedures established in this subsection. The executive director shall review a submitted AMOC and may approve the AMOC plan if it is demonstrated that the plan meets all applicable criteria and procedures of this subsection. The owner or operator who submits an AMOC plan not satisfying the requirements of this section may apply for a site-specific state implementation plan revision approved by the executive director and the United States Environmental Protection Agency (EPA).(B) Application for an AMOC plan does not stay enforcement of regulations in this subchapter.(C) Any violation of an AMOC plan will be subject to enforcement action as a violation of this subchapter.(3) Criteria for Approval of AMOC Plans. An AMOC plan may be approved if it meets each of the following criteria, as applicable. (A) Except as provided for in paragraph (8) of this subsection, all sources covered by the AMOC plan must be and remain at the same site. (B) If the AMOC plan includes an increase in the lb/hr emission limit for a source subject to the control requirements in this subchapter, the AMOC plan must also include an equivalent decrease in the lb/hr emission limit for one or more sources subject to the control of this subchapter.(C) The AMOC application must include a demonstration that satisfies the following requirements.(i) The modeled impacts of all sources affected by the AMOC plan demonstrate no net increase in ground-level concentration, which for purposes of this subparagraph means no net increase in modeled off-property concentration of SO2, on a highest, first-high basis, at any receptor, i , in excess of the lesser of: (I) GLC, as defined in the following equation; or Attached Graphic(II) an applicable significant impact level for the one-hour National Ambient Air Quality Standard for SO2.(ii) Except where otherwise provided in this subsection, the demonstration required under this paragraph must be by means of applicable air quality models, databases, and other requirements specified in Appendix W to 40 CFR §51.1 and what was used in the modeling for the corresponding SIP revision.(D) The AMOC must be implemented and reductions created after the effective date of this rule.(E) The AMOC plan must establish control requirements and monitoring, testing, recordkeeping, and reporting requirements consistent with and no less stringent than the applicable requirements of this subchapter for all sources in the plan that render the proposed control requirements enforceable.(4) Procedures for AMOC Plan Submittal.(A) The owner or operator requesting an AMOC plan shall submit a proposed AMOC plan and demonstration to the executive director; copies of such plan and demonstration must also be submitted to the appropriate regional office, any local air pollution control program with jurisdiction over the site affected by the AMOC plan, and copies to the EPA regional office.(B) The proposed AMOC plan must include the following information:(i) the AMOC applicant name with mailing address, site name with physical address, regulated entity number, and contact person including address and telephone number;(ii) an identification and a description of the sources involved in the AMOC plan including any applicable air permit numbers, plot plans, detailed flow diagrams, emission point numbers (EPNs), and facility identification numbers (FINs); an identification of the provisions of this subchapter that are applicable to such sources; an identification of promulgated provisions of this subchapter that will be applicable to such sources; and a description of normal operating conditions for each source causing emissions;(iii) control requirements, which must be established for each source to make emission limits enforceable, to be applicable to each source affected by the proposed AMOC plan;(iv) a demonstration that the AMOC plan satisfies each applicable requirement of paragraph (3) of this subsection;(v) a list containing the name, address, and telephone number of any air pollution control program with jurisdiction over the site affected by the AMOC plan; and(vi) any other relevant information necessary to evaluate the merits and enforceability of the AMOC plan, as may be requested by the executive director.(C) All representations with regard to the AMOC plan, as well as any provisions attached to the AMOC plan, become conditions upon which the subsequent AMOC plan is issued. If the AMOC plan is approved by the executive director and the EPA, the owner or operator may not vary from such representation or provision if the change will cause a change in the method of control of emissions, the character of the emissions, or will result in an increase in the discharge of the various emissions. If the AMOC plan is approved by the executive director and the EPA, the owner or operator may not vary from the emission limits, control requirements, monitoring, testing, reporting, or recordkeeping requirements of an approved AMOC plan.(D) Applications to amend or revise an AMOC plan must be submitted subject to the requirements of this subsection.(5) Procedures for an AMOC Plan Approval. Upon a preliminary determination to approve or deny the proposed AMOC plan, the executive director shall, in writing, so notify the submitter of the plan, any local air pollution control program with jurisdiction over the site affected by the AMOC plan, and the EPA regional office.(A) If the executive director makes a preliminary determination to approve the AMOC plan, the notice must include a copy of the AMOC plan as preliminarily approved.(B) If the executive director makes a determination to deny the AMOC plan, the notice must include a description of the reason(s) for such determination of denial. This determination constitutes a final action of the executive director appealable to the Commission as provided in subparagraph (G) of this paragraph.(C) Upon receipt of notice from the executive director that the AMOC plan has received preliminary approval, the AMOC applicant, at the applicant's own expense, shall cause notice of the applicant's intent to obtain an AMOC plan and of the opportunity to submit written comments to be published. The notice must be consistent with paragraph (6) of this subsection.(D) The executive director shall consider and prepare a written response to all significant and timely written comments filed in connection with an AMOC plan.(E) In response to the written comments, the executive director may modify the provisions of the AMOC plan, deny the AMOC plan, or approve the AMOC plan without changes.(F) The executive director shall send written notice of the final determination concerning each AMOC plan to the submitter of the plan, the EPA regional office, any local pollution control program with jurisdiction, and to each person who submitted timely written comments. Such notice must include the final AMOC plan provisions, a copy of the response to comments, and an announcement of the opportunity to appeal the executive director's determination to the Commission. The notice required by this subparagraph must be sent by a means evidencing receipt.(G) Any person entitled to notice under paragraph (6) of this subsection may, within 15 days of the receipt of such notice, file with the executive director an appeal of the final determination on the AMOC plan. Such appeal may be considered at the next regularly scheduled meeting of the Commission for which adequate notice may be made. Based on arguments submitted to the commission during such appeal, the Commission may remand the AMOC determination to the executive director, deny the AMOC plan, or issue the AMOC plan unchanged.(H) Within 45 days of final approval of the AMOC plan by the executive director or the Commission for an appeal, the EPA may notify the commission of the EPA's disapproval of the executive director's final decision. Such notification must be in writing and must include a statement of the reason(s) for the disapproval and a specific listing of changes to the AMOC plan needed to overcome the disapproval. Any time prior to the expiration of the 45-day period, the EPA may notify the executive director that no disapproval is forthcoming. Upon receipt of a timely EPA disapproval, the executive director shall void or revise the AMOC plan and reissue the notice as required by paragraph (6) of this subsection.(I) If no appeal of the executive director's decision to approve the AMOC plan is filed pursuant to paragraph (8) of this subsection, the AMOC plan becomes effective upon the acceptance of the plan by the EPA as described in subparagraph (K) of this paragraph.(J) If an appeal of the executive director's decision is filed, the AMOC plan becomes effective upon the latter of the acceptance of the AMOC plan by the Commission or the acceptance of the AMOC plan by the EPA.(K) EPA acceptance is defined as explicit approval of the AMOC plan by the EPA, notification by the EPA to the executive director that no EPA disapproval is forthcoming, or failure of the EPA to file notice of disapproval within 45 days after the executive director's final decision to approve the AMOC plan.(6) Public Notice Format.(A) Public notice must be published in the public notice section of two successive issues of a newspaper of general circulation in or closest to the municipality in which the site affected by the AMOC plan is located. (B) Public notice must contain the following information:(i) the AMOC plan application number assigned by the executive director;(ii) the AMOC applicant's name;(iii) the type of source and site;(iv) a description of the location of the site;(v) a brief description of the AMOC plan;(vi) the executive director's preliminary determination to approve the plan;(vii) the locations and availability of copies of the proposed AMOC plan, related documentation, and the executive director's preliminary analysis of the plan (including the Austin and appropriate regional offices, any local pollution control program with jurisdiction over the site affected by the AMOC plan, and the EPA regional office);(viii) an announcement of the opportunity to submit written comments on the AMOC plan;(ix) the length of the public comment period, which extends to at least 30 days after the final publication of the notice;(x) the procedure for submission of written public comments concerning the proposed AMOC plan; and(xi) the name, address, and phone number of the Agency's regional office to be contacted for further information.(C) The executive director may not take final action on the AMOC plan until the owner or operator who submitted the AMOC plan has provided proof of adequate notice to the executive director, the EPA, and any local pollution control program with jurisdiction.(7) Review of Approved AMOC Plans and Termination of AMOC Plans.(A) For the purposes of this subsection, compliance date means the date by which a source must comply with new or modified sections of this subchapter.(B) Unless revised to reflect new regulatory requirements, an AMOC plan becomes void on the compliance date specified for a new or modified section of this subchapter affecting a source subject to an AMOC plan.(C) The holder of an AMOC plan shall comply with the requirements of this subchapter if the AMOC plan becomes void.(D) Upon final approval of an AMOC plan, the owner or operator of the sources affected by the plan shall keep a copy of the plan on the site affected by the plan and shall make the plan available upon request to representatives of the executive director, the EPA, or any local air pollution control agency having jurisdiction in the area.(E) Upon request, each holder of an AMOC plan shall submit to the executive director a demonstration that the plan continues to meet all applicable criteria of this subsection.(F) An AMOC holder is responsible for obtaining a new AMOC plan prior to the compliance date of any new or modified regulation of this subchapter that affects a source subject to an AMOC plan.(8) Inclusion of Contiguous Properties. Notwithstanding paragraph (3)(A) of this subsection, an AMOC plan may cover multiple sources operated on contiguous properties, provided that separate requests for plan approval are submitted by each owner or operator subject to a control requirement under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §112.302 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scG/s112.303"><num value="112.303">§112.303</num><heading>Monitoring Requirements</heading><content>The owner or operator shall install, operate, calibrate, and maintain a continuous emissions monitoring system (CEMS) according to the manufacturer's specifications to continuously monitor the sulfur dioxide (SO2) emissions in accordance with the requirements of 40 CFR §60.13, 40 CFR 60, Appendix B, Performance Specification 2 and 6, for SO2, and Appendix F, quality assurance procedures: (1) monitor the pounds per hour of SO2 emitted from Kiln Scrubber Stack (EPN E-3); (2) monitor continuously the temperature and velocity of exhaust gases at the outlet of the stack; (3) provide an appropriate quality assurance and quality control process for all continuous monitoring data collected in accordance with requirements in this subsection that is validated for at least 95% of the time that the monitored emission source operates; an owner or operator must utilize an appropriate data substitution process based on the most accurate methodology available, which is at least equivalent to engineering judgement, to obtain all missing or invalidated monitoring data for the remaining period the monitored source is in operation; and(4) minor modifications to monitoring methods may be approved by the executive director. Monitoring methods other than those specified in this section may be used if approved by the executive director and validated by 40 CFR Part 63, Appendix A, Test Method 301. For the purposes of this subsection, substitute "executive director" in each place that Test Method 301 references "administrator." These validation procedures may be waived by the executive director or a different protocol may be granted for site-specific applications. Minor modifications that may be approved under this subsection include increases in the frequency of monitoring and the replacement of parametric monitoring with direct emissions monitoring with a CEMS provided appropriate quality assurance control, accuracy specifications, and data validation requirements are specified and no less stringent than monitoring requirements for a comparable EPN in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §112.303 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scG/s112.304"><num value="112.304">§112.304</num><heading>Testing Requirements</heading><content>(a) Within 60 days of installation of a continuous emissions monitoring system (CEMS), the owner or operator shall conduct a performance test to determine the current emission rate from the lightweight aggregate kiln to be used in calibrating the CEMS.(b) The owner or operator shall conduct additional performance testing, if requested by the executive director. All performance tests must be conducted using test methods allowed in §112.305 of this title (relating to Approved Test Methods).</content><note type="source"><p>Source Note: The provisions of this §112.304 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scG/s112.305"><num value="112.305">§112.305</num><heading>Approved Test Methods</heading><content>(a) The initial performance test after installation of the continuous emissions monitoring system (CEMS) for sulfur dioxide in exhaust gases and the relative accuracy test audits required by 40 Code of Federal Regulations (CFR) Part 60, Appendix F must be conducted using United States Environmental Protection Agency (EPA) Test Method 6 or 6C (40 CFR Part 60, Appendix A).(b) Performance tests and relative accuracy test audits must be conducted using a method in subsection (a) and EPA Test Method 2 (40 CFR Part 60, Appendix A) for exhaust gas flow and following the measurement site criteria of EPA Test Method 1, §11.1 (40 CFR Part 60, Appendix A), or EPA Test Method 19 (40 CFR Part 60, Appendix A) for exhaust gas flow in conjunction with the measurement site criteria of Performance Specification 2, §8.1.3 (40 CFR Part 60, Appendix B).(c) Alternate methods as approved by the executive director and the EPA may be used.</content><note type="source"><p>Source Note: The provisions of this §112.305 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scG/s112.306"><num value="112.306">§112.306</num><heading>Recordkeeping Requirements</heading><content>The owner or operator shall maintain, for a minimum of five years, records in written or electronic format sufficient to demonstrate compliance with all applicable requirements in this subchapter, including but not limited to:(1) records of the continuous monitoring of exhaust gas sulfur content, temperature, and velocity from the appropriate stack;(2) documentation of any period that emission limits or standards were exceeded, and copies of exceedance reports submitted to the appropriate Texas Commission on Environmental Quality regional office; and(3) a copy of each performance test and relative accuracy test audit conducted and associated records.</content><note type="source"><p>Source Note: The provisions of this §112.306 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scG/s112.307"><num value="112.307">§112.307</num><heading>Reporting Requirements</heading><content>(a) If an affected source exceeds the applicable emission limit or fails to meet a required stack parameter, the owner or operator shall submit to the Texas Commission on Environmental Quality (TCEQ) Regional Office for the area where the plant is located a report by March 31 of the year after an exceedance occurs documenting the excess emissions during the preceding calendar year, including at least the following: (1) the date that each exceedance or failure to meet a required stack parameter occurred; (2) an explanation of the exceedance or failure to meet a required stack parameter; (3) a statement of whether the exceedance or failure to meet a required stack parameter was concurrent with an authorized maintenance, startup, or shutdown activity for, or malfunction of, an affected source or control system; (4) a description of the action taken, if any; and (5) a written statement, signed by the owner or operator, certifying the accuracy and completeness of the information contained in the report. (b) The owner or operator shall submit a copy of each performance test report to the TCEQ Regional Office and any local air pollution control agency having jurisdiction for the area where the plant is located within 60 days after completion of the test.(c) After the effective date of a determination by the United States Environmental Protection Agency (EPA) that the Navarro County sulfur dioxide (SO2) nonattainment area has failed to attain the 2010 one-hour SO2 National Ambient Air Quality Standard or failed to meet reasonable further progress (RFP) pursuant to federal Clean Air Act §179(c), 42 United States Code §7509(c), the TCEQ will notify the owner or operator of the failure to attain and that the contingency measures in this subsection are triggered. Once notification is received from the TCEQ, the owner or operator shall perform a full system audit (FSA) of the SO2 sources subject to §112.300 of this title (relating to Applicability). (1) Within 90 calendar days after the date of the notification, the owner or operator shall submit the FSA, including recommended provisional SO2 emission control strategies as necessary, to the executive director of the TCEQ. (2) As part of the FSA, the owner or operator shall conduct a root cause analysis of the circumstances surrounding the cause of the determination of failure to attain or failure to meet RFP, including a review and consideration of the following: (A) for all causes of the determination of failure to attain or failure to meet RFP, at a minimum, hourly mass emissions of SO2 from each SO2 source subject to this subchapter; and (B) for a determination of failure to attain based on ambient air monitor data or modeling data, at a minimum, the meteorological conditions recorded at the monitor or other relevant meteorological data, including the frequency distribution of wind direction temporally correlated with SO2 readings greater than 75 parts per billion at the monitor for which the EPA's determination of failure to attain was made; and any emissions event that may have occurred. The root cause analysis and associated records used to conduct the audit must consider information on the days that monitored exceedances occurred during the time period that the EPA evaluated in making the failure to attain determination.</content><note type="source"><p>Source Note: The provisions of this §112.307 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c112/scG/s112.308"><num value="112.308">§112.308</num><heading>Compliance Schedules</heading><content>The owner or operator of the Arcosa LWS LLC Lightweight Streetman plant shall comply with the requirements of this subchapter no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §112.308 adopted to be effective October 27, 2022, 47 TexReg 6985.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c113"><num value="113">CHAPTER 113</num><heading>STANDARDS OF PERFORMANCE FOR HAZARDOUS AIR POLLUTANTS AND FOR DESIGNATED FACILITIES AND POLLUTANTS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c113/scA"><num value="A">SUBCHAPTER A</num><heading>DEFINITIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c113/scA/s113.1"><num value="113.1">§113.1</num><heading>Definitions</heading><content>Unless specifically defined in the TCAA or in the rules of the commission, the terms used in this subchapter have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined in the TCAA, §3.2 of this title (relating to Definitions), and §101.1 of this title (relating to Definitions), the following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Designated facility - Any existing facility which emits a designated pollutant and which would be subject to a standard of performance for that pollutant if the existing facility were an affected facility.(2) Designated pollutant - Any air pollutant, the emissions of which are subject to a standard of performance for new stationary sources, but for which air quality criteria have not been issued, and which is not included on a list published under the FCAA, 42 United States Code, §7408(a) or §7412(b)(1)(A).(3) Section 111(d) state plan - A plan submitted by the state, in accordance with the FCAA, 42 United States Code (USC), §7411(d), to the EPA Administrator which establishes standards of performance for any existing source for any air pollutant for which air quality criteria have not been issued or which is not included on a list published under FCAA, 42 USC, §7408(a), or emitted from a source category which is regulated under FCAA, 42 USC, §7412 or §7412(b), but to which a standard of performance under FCAA, 42 USC, §7411 would apply if such existing source were a new source, and provides for the implementation and enforcement of such standards of performance.</content><note type="source"><p>Source Note: The provisions of this §113.1 adopted to be effective June 23, 1998, 23 TexReg 6504; amended to be effective June 11, 2000, 25 TexReg 5365.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c113/scB"><num value="B">SUBCHAPTER B</num><heading>NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS (FCAA, §112, 40 CFR PART 61)</heading><section identifier="/us/state/tx/tac/t30/p1/c113/scB/s113.55"><num value="113.55">§113.55</num><heading>Radon Emissions from Phosphogypsum Stacks (40 CFR 61, Subpart R)</heading><content>The National Emissions Standards for Radon Emissions from Phosphogypsum Stacks as specified in 40 CFR 61, Subpart R, as promulgated on June 3, 1992, are incorporated by reference.</content><note type="source"><p>Source Note: The provisions of this §113.55 adopted to be effective February 4, 1999, 24 TexReg 577.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c113/scC"><num value="C">SUBCHAPTER C</num><heading>NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES (FCAA, §112, 40 CFR PART 63)</heading><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.100"><num value="113.100">§113.100</num><heading>General Provision (40 Code of Federal Regulations Part 63, Subpart A)</heading><content>The General Provisions for the National Emission Standards for Hazardous Air Pollutants for Source Categories as specified in 40 Code of Federal Regulations (CFR) Part 63, Subpart A, are incorporated by reference as amended through May 23, 2022 (87 FR 31185), with the following exceptions.(1) The language of 40 CFR §63.5(e)(2)(i) is amended to read as follows: The executive director will notify the owner or operator in writing of approval or intention to deny approval of construction or reconstruction within 180 calendar days after receipt of sufficient information to evaluate an application submitted under 40 CFR §63.5(d). The 180-day approval or denial period will begin after the owner or operator has been notified in writing that the application is complete. The executive director will notify the owner or operator in writing of the status of the application, that is, whether the application contains sufficient information to make a determination, within 90 calendar days after receipt of the original application and within 60 calendar days after receipt of any supplementary information that is submitted.(2) The language of 40 CFR §63.6(i)(12)(i) is amended to read as follows: The executive director will notify the owner or operator in writing of approval or intention to deny approval of a request for an extension of compliance within 60 calendar days after receipt of sufficient information to evaluate a request submitted under 40 CFR §63.6(i)(4)(i) or (i)(5). The 60-day approval or denial period will begin after the owner or operator has been notified in writing that the application is complete. The executive director will notify the owner or operator in writing of the status of the application, that is, whether the application contains sufficient information to make a determination, within 30 calendar days after receipt of the original application and within 30 calendar days after receipt of any supplementary information that is submitted.(3) The language of 40 CFR §63.6(i)(13)(i) is amended to read as follows: The executive director will notify the owner or operator in writing of approval or intention to deny approval of a request for an extension of compliance within 60 calendar days after receipt of sufficient information to evaluate a request submitted under 40 CFR §63.6(i)(4)(ii). The 60-day approval or denial period will begin after the owner or operator has been notified in writing that the application is complete. The executive director will notify the owner or operator in writing of the status of the application, that is, whether the application contains sufficient information to make a determination, within 30 calendar days after receipt of the original application and within 30 calendar days after receipt of any supplementary information that is submitted.(4) The language of 40 CFR §63.6(i)(13)(ii) is amended to read as follows: When notifying the owner or operator that the application is not complete, the executive director will specify the information needed to complete the application and provide notice of opportunity for the applicant to present, in writing, within 30 calendar days after they are notified of the incomplete application, additional information, or arguments to the executive director to enable further action on the application.(5) The language of 40 CFR §63.8(e)(5)(ii) is amended to read as follows: The owner or operator of an affected source using a Continuous Opacity Monitoring System (COMS) to determine opacity compliance during any performance test required under §63.7 and described in §63.6(d)(6) shall furnish the executive director two or, upon request, three copies of a written report of the results of the COMS performance evaluation under this paragraph. The copies shall be provided at least 30 calendar days before the performance test required under §63.7 is conducted.(6) The language of 40 CFR §63.9(i)(3) is amended to read as follows: If, in the executive director's judgment, an owner or operator's request for an adjustment to a particular time period or postmark deadline is warranted, the executive director will approve the adjustment. The executive director will notify the owner or operator in writing of approval or disapproval of the request for an adjustment within 30 calendar days of receiving sufficient information to evaluate the request.(7) The language of 40 CFR §63.10(e)(2)(ii) is amended to read as follows: The owner or operator of an affected source using a COMS to determine opacity compliance during any performance test required under §63.7 and described in §63.6(d)(6) shall furnish the executive director two or, upon request, three copies of a written report of the results of the COMS performance evaluation conducted under §63.8(e). The copies shall be furnished at least 30 calendar days before the performance test required under §63.7 is conducted.</content><note type="source"><p>Source Note: The provisions of this §113.100 adopted to be effective July 16, 1997, 22 TexReg 6451; amended to be effective October 29, 1998, 23 TexReg 10870; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352;amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.105"><num value="113.105">§113.105</num><heading>Requirements for Control Technology Determinations for Major Sources in Accordance with Clean Air Act, §112(j) (40 Code of Federal Regulations Part 63, Subpart B, §§63.50 - 63.56)</heading><content>The Requirements for Control Technology Determinations for Major Sources in Accordance with Federal Clean Air Act, §112(j), 40 Code of Federal Regulations Part 63, Subpart B, §§63.50 - 63.56, are incorporated by reference as amended through July 11, 2005 (70 FR 39662).</content><note type="source"><p>Source Note: The provisions of this §113.105 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.106"><num value="113.106">§113.106</num><heading>List of Hazardous Air Pollutants, Petitions Process, Lesser Quantity Designations, Source Category List (40 Code of Federal Regulations Part 63, Subpart C)</heading><content>The provisions of 40 Code of Federal Regulations Part 63, Subpart C, concerning the List of Hazardous Air Pollutants, Petitions Process, Lesser Quantity Designations, Source Category List, are incorporated by reference as amended through January 5, 2022 (87 FR 393).</content><note type="source"><p>Source Note: The provisions of this §113.106 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.110"><num value="113.110">§113.110</num><heading>Synthetic Organic Chemical Manufacturing Industry (40 Code of Federal Regulations Part 63, Subpart F)</heading><content>The Synthetic Organic Chemical Manufacturing Industry Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart F, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.110 adopted to be effective July 16, 1997, 22 TexReg 6451; amended to be effective October 29, 1998, 23 TexReg 10870; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.120"><num value="113.120">§113.120</num><heading>Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater (40 Code of Federal Regulations Part 63, Subpart G)</heading><content>The Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart G, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.120 adopted to be effective July 16, 1997, 22 TexReg 6451; amended to be effective October 29, 1998, 23 TexReg 10870; amended to be effective August 8, 1999, 24 TexReg 5873; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.130"><num value="113.130">§113.130</num><heading>Organic Hazardous Air Pollutants for Equipment Leaks (40 Code of Federal Regulations Part 63, Subpart H)</heading><content>The Organic Hazardous Air Pollutants for Equipment Leaks Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart H, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.130 adopted to be effective July 16, 1997, 22 TexReg 6451; amended to be effective October 29, 1998, 23 TexReg 10870; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.140"><num value="113.140">§113.140</num><heading>Certain Processes Subject to the Negotiated Regulation for Equipment Leaks (40 Code of Federal Regulations Part 63, Subpart I)</heading><content>The Certain Processes Subject to the Negotiated Regulations for Equipment Leaks Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart I, is incorporated by reference as amended through June 23, 2003 (68 FR 37345).</content><note type="source"><p>Source Note: The provisions of this §113.140 adopted to be effective July 16, 1997, 22 TexReg 6451; amended to be effective October 29, 1998, 23 TexReg 10870; amended to be effective June 15, 2005, 30 TexReg 3410.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.170"><num value="113.170">§113.170</num><heading>Coke Oven Batteries (40 Code of Federal Regulations Part 63, Subpart L)</heading><content>The Coke Oven Batteries Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart L, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.170 adopted to be effective August 8, 1999, 24 TexReg 5873; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.180"><num value="113.180">§113.180</num><heading>Perchloroethylene Dry Cleaning Facilities (40 Code of Federal Regulations Part 63, Subpart M)</heading><content>The Perchloroethylene Dry Cleaning Facilities Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart M, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.180 adopted to be effective November 5, 1997, 22 TexReg 10673; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.190"><num value="113.190">§113.190</num><heading>Chromium Emissions from Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks (40 Code of Federal Regulations Part 63, Subpart N)</heading><content>The Chromium Emissions from Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart N, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.190 adopted to be effective November 5, 1997, 22 TexReg 10673; amended to be effective October 29, 1998, 23 TexReg 10870; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effectiveAugust21,2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.200"><num value="113.200">§113.200</num><heading>Ethylene Oxide Emissions Standards for Sterilization Facilities (40 Code of Federal Regulations Part 63, Subpart O)</heading><content>The Ethylene Oxide Emissions Standards for Sterilization Facilities Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart O, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.200 adopted to be effective November 5, 1997, 22 TexReg 10673; amended to be effective August 8, 1999, 24 TexReg 5873; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended tobe effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.220"><num value="113.220">§113.220</num><heading>Industrial Process Cooling Towers (40 Code of Federal Regulations Part 63, Subpart Q)</heading><content>The Industrial Process Cooling Towers Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart Q, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.220 adopted to be effective July 16, 1997, 22 TexReg 6451; amended to be effective October 29, 1998, 23 TexReg 10870; amended to be effective August 8, 1999, 24 TexReg 5873; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.230"><num value="113.230">§113.230</num><heading>Gasoline Distribution Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations) (40 Code of Federal Regulations Part 63, Subpart R)</heading><content>The Gasoline Distribution Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations) Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart R, is incorporated by reference as amended through December 4, 2020 (85 FR 78412).</content><note type="source"><p>Source Note: The provisions of this §113.230 adopted to be effective July 16, 1997, 22 TexReg 6451; amended to be effective October 29, 1998, 23 TexReg 10870; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.240"><num value="113.240">§113.240</num><heading>Pulp and Paper Industry (40 Code of Federal Regulations Part 63, Subpart S)</heading><content>The Pulp and Paper Industry Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart S, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.240 adopted to be effective August 8, 1999, 24 TexReg 5873; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.250"><num value="113.250">§113.250</num><heading>Halogenated Solvent Cleaning (40 Code of Federal Regulations Part 63, Subpart T)</heading><content>The Halogenated Solvent Cleaning Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart T, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.250 adopted to be effective July 16, 1997, 22 TexReg 6451; amended to be effective October 29, 1998, 23 TexReg 10870; amended to be effective August 8, 1999, 24 TexReg 5873; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.260"><num value="113.260">§113.260</num><heading>Group I Polymers and Resins (40 Code of Federal Regulations Part 63, Subpart U)</heading><content>The Group I Polymers and Resins Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart U, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.260 adopted to be effective October 29, 1998, 23 TexReg 10870; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.280"><num value="113.280">§113.280</num><heading>Epoxy Resins Production and Non-Nylon Polyamides Production (40 Code of Federal Regulations Part 63, Subpart W)</heading><content>The Epoxy Resins Production and Non-Nylon Polyamides Production Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart W, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.280 adopted to be effective November 5, 1997, 22 TexReg 10673; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.290"><num value="113.290">§113.290</num><heading>Secondary Lead Smelting (40 Code of Federal Regulations Part 63, Subpart X)</heading><content>The Secondary Lead Smelting Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart X, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.290 adopted to be effective July 16, 1997, 22 TexReg 6451; amended to be effective October 29, 1998, 23 TexReg 10870; amended to be effective August 8, 1999, 24 TexReg 5873; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352;amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.300"><num value="113.300">§113.300</num><heading>Marine Tank Vessel Loading Operations (40 Code of Federal Regulations Part 63, Subpart Y)</heading><content>The Marine Tank Vessel Loading Operations Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart Y, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.300 adopted to be effective July 16, 1997, 22 TexReg 6451; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.320"><num value="113.320">§113.320</num><heading>Phosphoric Acid Manufacturing Plants (40 Code of Federal Regulations Part 63, Subpart AA)</heading><content>The Phosphoric Acid Manufacturing Plants Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart AA, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.320 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.330"><num value="113.330">§113.330</num><heading>Phosphate Fertilizers Production Plants (40 Code of Federal Regulations Part 63, Subpart BB)</heading><content>The Phosphate Fertilizers Production Plants Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart BB, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.330 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.340"><num value="113.340">§113.340</num><heading>Petroleum Refineries (40 Code of Federal Regulations Part 63, Subpart CC)</heading><content>The Petroleum Refineries Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart CC, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.340 adopted to be effective November 5, 1997, 22 TexReg 10673; amended to be effective August 1, 1999, 24 TexReg 5873; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.350"><num value="113.350">§113.350</num><heading>Off-Site Waste and Recovery Operations (40 Code of Federal Regulations Part 63, Subpart DD)</heading><content>The Off-Site Waste and Recovery Operations Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart DD, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.350 adopted to be effective October 29, 1998, 23 TexReg 10870; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5,2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.360"><num value="113.360">§113.360</num><heading>Magnetic Tape Manufacturing Operations (40 Code of Federal Regulations Part 63, Subpart EE)</heading><content>The Magnetic Tape Manufacturing Operations Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart EE, is incorporated by reference as amended through December 28, 2020 (85 FR 84261).</content><note type="source"><p>Source Note: The provisions of this §113.360 adopted to be effective July 16, 1997, 22 TexReg 6451; amended to be effective October 29, 1998, 23 TexReg 10870; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.380"><num value="113.380">§113.380</num><heading>Aerospace Manufacturing and Rework Facilities (40 Code of Federal Regulations Part 63, Subpart GG)</heading><content>The Aerospace Manufacturing and Rework Facilities Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart GG, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.380 adopted to be effective November 5, 1997, 22 TexReg 10673; amended to be effective October 29, 1998, 23 TexReg 10870; amended to be effective August 8, 1999, 24 TexReg 5873; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effectiveDecember 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.390"><num value="113.390">§113.390</num><heading>Oil and Natural Gas Production Facilities (40 Code of Federal Regulations Part 63, Subpart HH)</heading><content>The Oil and Natural Gas Production Facilities Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart HH, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.390 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.400"><num value="113.400">§113.400</num><heading>Shipbuilding and Ship Repair (Surface Coating) (40 Code of Federal Regulations Part 63, Subpart II)</heading><content>The Shipbuilding and Ship Repair (Surface Coating) Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart II, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.400 adopted to be effective October 29, 1998, 23 TexReg 10870; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.410"><num value="113.410">§113.410</num><heading>Wood Furniture Manufacturing Operations (40 Code of Federal Regulations Part 63, Subpart JJ)</heading><content>The Wood Furniture Manufacturing Operations Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart JJ, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.410 adopted to be effective August 8, 1999, 24 TexReg 5873; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.420"><num value="113.420">§113.420</num><heading>Printing and Publishing Industry (40 Code of Federal Regulations Part 63, Subpart KK)</heading><content>The Printing and Publishing Industry Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart KK, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.420 adopted to be effective October 29, 1998, 23 TexReg 10870; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.430"><num value="113.430">§113.430</num><heading>Primary Aluminum Reduction Plants (40 Code of Federal Regulations Part 63, Subpart LL)</heading><content>The Primary Aluminum Reduction Plants Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart LL, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.430 adopted to be effective August 8, 1999, 24 TexReg 5873; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.440"><num value="113.440">§113.440</num><heading>Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills (40 Code of Federal Regulations Part 63, Subpart MM)</heading><content>The Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart MM, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.440 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.450"><num value="113.450">§113.450</num><heading>Wool Fiberglass Manufacturing at Area Sources (40 Code of Federal Regulations Part 63, Subpart NN)</heading><content>The Wool Fiberglass Manufacturing at Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart NN, is incorporated by reference as adopted July 29, 2015 (80 FR 45280).</content><note type="source"><p>Source Note: The provisions of this §113.450 adopted to be effective December 29, 2016, 41 TexReg 10352.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.460"><num value="113.460">§113.460</num><heading>Tanks--Level 1 (40 Code of Federal Regulations Part 63, Subpart OO)</heading><content>The Tanks - Level 1 Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart OO, is incorporated by reference as amended through June 23, 2003 (68 FR 37354).</content><note type="source"><p>Source Note: The provisions of this §113.460 adopted to be effective August 8, 1999, 24 TexReg 5873; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective June 15, 2005, 30 TexReg 3410.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.470"><num value="113.470">§113.470</num><heading>Containers (40 Code of Federal Regulations Part 63, Subpart PP)</heading><content>The Containers Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart PP, is incorporated by reference as amended through June 23, 2003 (68 FR 37355).</content><note type="source"><p>Source Note: The provisions of this §113.470 adopted to be effective August 8, 1999, 24 TexReg 5873; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.480"><num value="113.480">§113.480</num><heading>Surface Impoundments (40 Code of Federal Regulations Part 63, Subpart QQ)</heading><content>The Surface Impoundments Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart QQ, is incorporated by reference as amended through June 23, 2003 (68 FR 37355).</content><note type="source"><p>Source Note: The provisions of this §113.480 adopted to be effective August 8, 1999, 24 TexReg 5873; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective June 15, 2005, 30 TexReg 3410.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.490"><num value="113.490">§113.490</num><heading>Individual Drain Systems (40 Code of Federal Regulations Part 63, Subpart RR)</heading><content>The Individual Drain System Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart RR, is incorporated by reference as amended through June 23, 2003 (68 FR 37355).</content><note type="source"><p>Source Note: The provisions of this §113.490 adopted to be effective August 8, 1999, 24 TexReg 5873; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.500"><num value="113.500">§113.500</num><heading>Closed Vent Systems, Control Devices, Recovery Devices, and Routing to a Fuel Gas System or a Process (40 Code of Federal Regulations Part 63, Subpart SS)</heading><content>The Closed Vent Systems, Control Devices, Recovery Devices, and Routing to a Fuel Gas System or a Process Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart SS, is incorporated by reference as amended through July 6, 2020 (85 FR 40386).</content><note type="source"><p>Source Note: The provisions of this §113.500 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.510"><num value="113.510">§113.510</num><heading>Equipment Leaks - Control Level 1 (40 Code of Federal Regulations Part 63, Subpart TT)</heading><content>The Equipment Leaks - Control Level 1 Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart TT, is incorporated by reference as amended through July 12, 2002 (67 FR 46258).</content><note type="source"><p>Source Note: The provisions of this §113.510 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.520"><num value="113.520">§113.520</num><heading>Equipment Leaks - Control Level 2 (40 Code of Federal Regulations Part 63, Subpart UU)</heading><content>The Equipment Leaks - Control Level 2 Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart UU, is incorporated by reference as amended through July 12, 2002 (67 FR 46258).</content><note type="source"><p>Source Note: The provisions of this §113.520 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.530"><num value="113.530">§113.530</num><heading>Oil-Water Separators and Organic-Water Separators (40 Code of Federal Regulations Part 63, Subpart VV)</heading><content>The Oil-Water Separators and Organic-Water Separators Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart VV, is incorporated by reference as amended through June 23, 2003 (68 FR 37355).</content><note type="source"><p>Source Note: The provisions of this §113.530 adopted to be effective August 8, 1999, 24 TexReg 5873; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.540"><num value="113.540">§113.540</num><heading>Storage Vessels (Tanks) - Control Level 2 (40 Code of Federal Regulations Part 63, Subpart WW)</heading><content>The Storage Vessels (Tanks) - Control Level 2 Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart WW, is incorporated by reference as amended through July 12, 2002 (67 FR 46258).</content><note type="source"><p>Source Note: The provisions of this §113.540 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.550"><num value="113.550">§113.550</num><heading>Ethylene Manufacturing Process Units: Heat Exchange Systems and Waste Operations (40 Code of Federal Regulations Part 63, Subpart XX)</heading><content>The Ethylene Manufacturing Process Units: Heat Exchange Systems and Waste Operations Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart XX, is incorporated by reference as amended through July 6, 2020 (85 FR 40386).</content><note type="source"><p>Source Note: The provisions of this §113.550 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.560"><num value="113.560">§113.560</num><heading>Source Categories: Generic Maximum Achievable Control Technology Standards (40 Code of Federal Regulations Part 63, Subpart YY)</heading><content>The Source Categories: Generic Maximum Achievable Control Technology Standards as specified in 40 Code of Federal Regulations Part 63, Subpart YY, is incorporated by reference as amended through November 19, 2021 (86 FR 66096).</content><note type="source"><p>Source Note: The provisions of this §113.560 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.600"><num value="113.600">§113.600</num><heading>Steel Pickling - HC1 Process Facilities and Hydrochloric Acid Regeneration Plants (40 Code of Federal Regulations Part 63, Subpart CCC)</heading><content>The Steel Pickling - HCl Process Facilities and Hydrochloric Acid Regeneration Plants Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart CCC, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.600 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.610"><num value="113.610">§113.610</num><heading>Mineral Wool Production (40 Code of Federal Regulations Part 63, Subpart DDD)</heading><content>The Mineral Wool Production Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart DDD, is incorporated by reference as amended through December 28, 2020 (85 FR 84261).</content><note type="source"><p>Source Note: The provisions of this §113.610 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.620"><num value="113.620">§113.620</num><heading>Hazardous Waste Combustors (40 Code of Federal Regulations Part 63, Subpart EEE)</heading><content>The Hazardous Waste Combustors Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart EEE, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.620 adopted to be effective August 8, 1999, 24 TexReg 5873; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.640"><num value="113.640">§113.640</num><heading>Pharmaceuticals Production (40 Code of Federal Regulations Part 63, Subpart GGG)</heading><content>The Pharmaceuticals Production Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart GGG, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.640 adopted to be effective August 8, 1999, 24 TexReg 5873; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.650"><num value="113.650">§113.650</num><heading>Natural Gas Transmission and Storage Facilities (40 Code of Federal Regulations Part 63, Subpart HHH)</heading><content>The Natural Gas Transmission and Storage Facilities Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart HHH, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.650 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.660"><num value="113.660">§113.660</num><heading>Flexible Polyurethane Foam Production (40 Code of Federal Regulations Part 63, Subpart III)</heading><content>The Flexible Polyurethane Foam Production Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart III, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.660 adopted to be effective August 8, 1999, 24 TexReg 5873; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.670"><num value="113.670">§113.670</num><heading>Group IV Polymers and Resins (40 Code of Federal Regulations Part 63, Subpart JJJ)</heading><content>The Group IV Polymers and Resins Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart JJJ, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.670 adopted to be effective October 29, 1998, 23 TexReg 10870; amended to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016,41TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.690"><num value="113.690">§113.690</num><heading>Portland Cement Manufacturing Industry (40 Code of Federal Regulations Part 63, Subpart LLL)</heading><content>The Portland Cement Manufacturing Industry Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart LLL, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.690 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5,2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.700"><num value="113.700">§113.700</num><heading>Pesticide Active Ingredient Production (40 Code of Federal Regulations Part 63, Subpart MMM)</heading><content>The Pesticide Active Ingredient Production Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart MMM, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.700 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.710"><num value="113.710">§113.710</num><heading>Wool Fiberglass Manufacturing (40 Code of Federal Regulations Part 63, Subpart NNN)</heading><content>The Wool Fiberglass Manufacturing Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart NNN, is incorporated by reference as amended through December 28, 2020 (85 FR 84261).</content><note type="source"><p>Source Note: The provisions of this §113.710 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.720"><num value="113.720">§113.720</num><heading>Manufacture of Amino/Phenolic Resins (40 Code of Federal Regulations Part 63, Subpart OOO)</heading><content>The Manufacture of Amino/Phenolic Resins Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart OOO, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.720 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.730"><num value="113.730">§113.730</num><heading>Polyether Polyols Production (40 Code of Federal Regulations Part 63, Subpart PPP)</heading><content>The Polyether Polyols Production Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart PPP, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.730 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.740"><num value="113.740">§113.740</num><heading>Primary Copper Smelting (40 Code of Federal Regulations Part 63, Subpart QQQ)</heading><content>The Primary Copper Smelting Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart QQQ, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.740 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.750"><num value="113.750">§113.750</num><heading>Secondary Aluminum Production (40 Code of Federal Regulations Part 63, Subpart RRR)</heading><content>The Secondary Aluminum Production Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart RRR, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.750 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.770"><num value="113.770">§113.770</num><heading>Primary Lead Smelting (40 Code of Federal Regulations Part 63, Subpart TTT)</heading><content>The Primary Lead Smelting Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart TTT, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.770 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.780"><num value="113.780">§113.780</num><heading>Petroleum Refineries: Catalytic Cracking Units, Catalytic Reforming Units, and Sulfur Recovery Units (40 Code of Federal Regulations Part 63, Subpart UUU)</heading><content>The Petroleum Refineries: Catalytic Cracking Units, Catalytic Reforming Units, and Sulfur Recovery Units Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart UUU, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.780 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.790"><num value="113.790">§113.790</num><heading>Publicly Owned Treatment Works (40 Code of Federal Regulations Part 63, Subpart VVV)</heading><content>The Publicly Owned Treatment Works Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart VVV, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.790 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.810"><num value="113.810">§113.810</num><heading>Ferroalloys Production: Ferromanganese and Silicomanganese (40 Code of Federal Regulations Part 63, Subpart XXX)</heading><content>The Ferroalloys Production: Ferromanganese and Silicomanganese Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart XXX, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.810 adopted to be effective July 9, 2000, 25 TexReg 6329; amended to be effective July 9, 2003, 28 TexReg 5186; amended to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.840"><num value="113.840">§113.840</num><heading>Municipal Solid Waste Landfills (40 Code of Federal Regulations Part 63, Subpart AAAA)</heading><content>The Municipal Solid Waste Landfills Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart AAAA, is incorporated by reference as amended through February 14, 2022 (87 FR 8197).</content><note type="source"><p>Source Note: The provisions of this §113.840 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.860"><num value="113.860">§113.860</num><heading>Manufacturing of Nutritional Yeast (40 Code of Federal Regulations Part 63, Subpart CCCC)</heading><content>The Manufacturing of Nutritional Yeast Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart CCCC, is incorporated by reference as amended through October 16, 2017 (82 FR 48156).</content><note type="source"><p>Source Note: The provisions of this §113.860 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.870"><num value="113.870">§113.870</num><heading>Plywood and Composite Wood Products (40 Code of Federal Regulations Part 63, Subpart DDDD)</heading><content>The Plywood and Composite Wood Products Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart DDDD, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.870 adopted to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.880"><num value="113.880">§113.880</num><heading>Organic Liquids Distribution (Non-Gasoline) (40 Code of Federal Regulations Part 63, Subpart EEEE)</heading><content>The Organic Liquids Distribution (Non-Gasoline) Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart EEEE, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.880 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.890"><num value="113.890">§113.890</num><heading>Miscellaneous Organic Chemical Manufacturing (40 Code of Federal Regulations Part 63, Subpart FFFF)</heading><content>The Miscellaneous Organic Chemical Manufacturing Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart FFFF, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.890 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.900"><num value="113.900">§113.900</num><heading>Solvent Extraction for Vegetable Oil Production (40 Code of Federal Regulations Part 63, Subpart GGGG)</heading><content>The Solvent Extraction for Vegetable Oil Production Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart GGGG, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.900 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.910"><num value="113.910">§113.910</num><heading>Wet-Formed Fiberglass Mat Production (40 Code of Federal Regulations Part 63, Subpart HHHH)</heading><content>The Wet-Formed Fiberglass Mat Production Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart HHHH, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.910 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.920"><num value="113.920">§113.920</num><heading>Surface Coating of Automobiles and Light-Duty Trucks (40 Code of Federal Regulations Part 63, Subpart IIII)</heading><content>The Surface Coating of Automobiles and Light-Duty Trucks Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart IIII, is incorporated by reference as amended through November 19, 2021 (86 FR 66038).</content><note type="source"><p>Source Note: The provisions of this §113.920 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.930"><num value="113.930">§113.930</num><heading>Paper and Other Web Coating (40 Code of Federal Regulations Part 63, Subpart JJJJ)</heading><content>The Paper and Other Web Coating Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart JJJJ, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.930 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.940"><num value="113.940">§113.940</num><heading>Surface Coating of Metal Cans (40 Code of Federal Regulations Part 63, Subpart KKKK)</heading><content>The Surface Coating of Metal Cans Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart KKKK, is incorporated by reference as amended through November 19, 2021 (86 FR 66038).</content><note type="source"><p>Source Note: The provisions of this §113.940 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.960"><num value="113.960">§113.960</num><heading>Surface Coating of Miscellaneous Metal Parts and Products (40 Code of Federal Regulations Part 63, Subpart MMMM)</heading><content>The Surface Coating of Miscellaneous Metal Parts and Products Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart MMMM, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.960 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.970"><num value="113.970">§113.970</num><heading>Surface Coating of Large Appliances (40 Code of Federal Regulations Part 63, Subpart NNNN)</heading><content>The Surface Coating of Large Appliances Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart NNNN, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.970 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.980"><num value="113.980">§113.980</num><heading>Printing, Coating, and Dyeing of Fabrics and Other Textiles (40 Code of Federal Regulations Part 63, Subpart OOOO)</heading><content>The Printing, Coating, and Dyeing of Fabrics and Other Textiles Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart OOOO, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.980 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.990"><num value="113.990">§113.990</num><heading>Surface Coating of Plastic Parts and Products (40 Code of Federal Regulations Part 63, Subpart PPPP)</heading><content>The Surface Coating of Plastic Parts and Products Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart PPPP, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.990 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1000"><num value="113.1000">§113.1000</num><heading>Surface Coating of Wood Building Products (40 Code of Federal Regulations Part 63, Subpart QQQQ)</heading><content>The Surface Coating of Wood Building Products Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart QQQQ, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1000 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1010"><num value="113.1010">§113.1010</num><heading>Surface Coating of Metal Furniture (40 Code of Federal Regulations Part 63, Subpart RRRR)</heading><content>The Surface Coating of Metal Furniture Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart RRRR, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1010 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1020"><num value="113.1020">§113.1020</num><heading>Surface Coating of Metal Coil (40 Code of Federal Regulations Part 63, Subpart SSSS)</heading><content>The Surface Coating of Metal Coil Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart SSSS, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1020 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1030"><num value="113.1030">§113.1030</num><heading>Leather Finishing Operations (40 Code of Federal Regulations Part 63, Subpart TTTT)</heading><content>The Leather Finishing Operations Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart TTTT, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1030 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1040"><num value="113.1040">§113.1040</num><heading>Cellulose Products Manufacturing (40 Code of Federal Regulations Part 63, Subpart UUUU)</heading><content>The Cellulose Products Manufacturing Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart UUUU, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1040 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1050"><num value="113.1050">§113.1050</num><heading>Boat Manufacturing (40 Code of Federal Regulations Part 63, Subpart VVVV)</heading><content>The Boat Manufacturing Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart VVVV, is incorporated by reference as amended through November 19, 2021 (86 FR 66038).</content><note type="source"><p>Source Note: The provisions of this §113.1050 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1060"><num value="113.1060">§113.1060</num><heading>Reinforced Plastic Composites Production (40 Code of Federal Regulations Part 63, Subpart WWWW)</heading><content>The Reinforced Plastic Composites Production Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart WWWW, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1060 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1070"><num value="113.1070">§113.1070</num><heading>Rubber Tire Manufacturing (40 Code of Federal Regulations Part 63, Subpart XXXX)</heading><content>The Rubber Tire Manufacturing Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart XXXX, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1070 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1080"><num value="113.1080">§113.1080</num><heading>Stationary Combustion Turbines (40 Code of Federal Regulations Part 63, Subpart YYYY)</heading><content>The Stationary Combustion Turbines Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart YYYY, is incorporated by reference as amended through March 9, 2022 (87 FR 13183).</content><note type="source"><p>Source Note: The provisions of this §113.1080 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1090"><num value="113.1090">§113.1090</num><heading>Stationary Reciprocating Internal Combustion Engines (40 Code of Federal Regulations Part 63, Subpart ZZZZ)</heading><content>The Stationary Reciprocating Internal Combustion Engines Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart ZZZZ, is incorporated by reference as amended through August 10, 2022 (87 FR 48603).</content><note type="source"><p>Source Note: The provisions of this §113.1090 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1100"><num value="113.1100">§113.1100</num><heading>Lime Manufacturing Plants (40 Code of Federal Regulations Part 63, Subpart AAAAA)</heading><content>The Lime Manufacturing Plants Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart AAAAA, is incorporated by reference as amended through December 28, 2020 (85 FR 84261).</content><note type="source"><p>Source Note: The provisions of this §113.1100 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1110"><num value="113.1110">§113.1110</num><heading>Semiconductor Manufacturing (40 Code of Federal Regulations Part 63, Subpart BBBBB)</heading><content>The Semiconductor Manufacturing Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart BBBBB, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1110 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1120"><num value="113.1120">§113.1120</num><heading>Coke Ovens: Pushing, Quenching, and Battery Stacks (40 Code of Federal Regulations Part 63, Subpart CCCCC)</heading><content>The Coke Ovens: Pushing, Quenching, and Battery Stacks Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart CCCCC, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1120 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1130"><num value="113.1130">§113.1130</num><heading>Industrial, Commercial, and Institutional Boilers and Process Heaters Major Sources (40 Code of Federal Regulations Part 63, Subpart DDDDD)</heading><content>The Industrial, Commercial, and Institutional Boilers and Process Heaters Major Sources Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart DDDDD, is incorporated by reference as amended through December 28, 2020 (85 FR 84261).</content><note type="source"><p>Source Note: The provisions of this §113.1130 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1140"><num value="113.1140">§113.1140</num><heading>Iron and Steel Foundries (40 Code of Federal Regulations Part 63, Subpart EEEEE)</heading><content>The Iron and Steel Foundries Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart EEEEE, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1140 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1150"><num value="113.1150">§113.1150</num><heading>Integrated Iron and Steel Manufacturing Facilities (40 Code of Federal Regulations Part 63, Subpart FFFFF)</heading><content>The Integrated Iron and Steel Manufacturing Facilities Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart FFFFF, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1150 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1160"><num value="113.1160">§113.1160</num><heading>Site Remediation (40 Code of Federal Regulations Part 63, Subpart GGGGG)</heading><content>The Site Remediation Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart GGGGG, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1160 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1170"><num value="113.1170">§113.1170</num><heading>Miscellaneous Coating Manufacturing (40 Code of Federal Regulations Part 63, Subpart HHHHH)</heading><content>The Miscellaneous Coating Manufacturing Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart HHHHH, is incorporated by reference as amended through November 25, 2020 (85 FR 75235).</content><note type="source"><p>Source Note: The provisions of this §113.1170 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1180"><num value="113.1180">§113.1180</num><heading>Mercury Cell Chlor-Alkali Plants (40 Code of Federal Regulations Part 63, Subpart IIIII)</heading><content>The Mercury Cell Chlor-Alkali Plants Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart IIIII, is incorporated by reference as amended through May 6, 2022 (87 FR 27002).</content><note type="source"><p>Source Note: The provisions of this §113.1180 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1190"><num value="113.1190">§113.1190</num><heading>Brick and Structural Clay Products Manufacturing (40 Code of Federal Regulations Part 63, Subpart JJJJJ)</heading><content>The Brick and Structural Clay Products Manufacturing Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart JJJJJ, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1190 adopted to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1200"><num value="113.1200">§113.1200</num><heading>Clay Ceramics Manufacturing (40 Code of Federal Regulations Part 63, Subpart KKKKK)</heading><content>The Clay Ceramics Manufacturing Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart KKKKK, is incorporated by reference as amended through November 19, 2021 (86 FR 66038).</content><note type="source"><p>Source Note: The provisions of this §113.1200 adopted to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1210"><num value="113.1210">§113.1210</num><heading>Asphalt Processing and Asphalt Roofing Manufacturing (40 Code of Federal Regulations Part 63, Subpart LLLLL)</heading><content>The Asphalt Processing and Asphalt Roofing Manufacturing Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart LLLLL, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1210 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1220"><num value="113.1220">§113.1220</num><heading>Flexible Polyurethane Foam Fabrication Operations (40 Code of Federal Regulations Part 63, Subpart MMMMM)</heading><content>The Flexible Polyurethane Foam Fabrication Operations Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart MMMMM, is incorporated by reference as amended through November 18, 2021 (86 FR 64385).</content><note type="source"><p>Source Note: The provisions of this §113.1220 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1230"><num value="113.1230">§113.1230</num><heading>Hydrochloric Acid Production (40 Code of Federal Regulations Part 63, Subpart NNNNN)</heading><content>The Hydrochloric Acid Production Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart NNNNN, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1230 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1250"><num value="113.1250">§113.1250</num><heading>Engine Test Cells/Stands (40 Code of Federal Regulations Part 63, Subpart PPPPP)</heading><content>The Engine Test Cells/Stands Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart PPPPP, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1250 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1260"><num value="113.1260">§113.1260</num><heading>Friction Materials Manufacturing Facilities (40 Code of Federal Regulations Part 63, Subpart QQQQQ)</heading><content>The Friction Materials Manufacturing Facilities Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart QQQQQ, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1260 adopted to be effective July 9, 2003, 28 TexReg 5186; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1270"><num value="113.1270">§113.1270</num><heading>Taconite Iron Ore Processing (40 Code of Federal Regulations Part 63, Subpart RRRRR)</heading><content>The Taconite Iron Ore Processing Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart RRRRR, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1270 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1280"><num value="113.1280">§113.1280</num><heading>Refractory Products Manufacturing (40 Code of Federal Regulations Part 63, Subpart SSSSS)</heading><content>The Refractory Products Manufacturing Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart SSSSS, is incorporated by reference as amended through November 19, 2021 (86 FR 66045).</content><note type="source"><p>Source Note: The provisions of this §113.1280 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1290"><num value="113.1290">§113.1290</num><heading>Primary Magnesium Refining (40 Code of Federal Regulations Part 63, Subpart TTTTT)</heading><content>The Primary Magnesium Refining Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart TTTTT, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1290 adopted to be effective June 15, 2005, 30 TexReg 3410; amended to be effective December 27, 2007, 32 TexReg 9698; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1300"><num value="113.1300">§113.1300</num><heading>Coal- and Oil-Fired Electric Utility Steam Generating Units (40 Code of Federal Regulations Part 63, Subpart UUUUU)</heading><content>The Coal- and Oil-Fired Electric Utility Steam Generating Units Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart UUUUU, is incorporated by reference as amended through September 9, 2020 (85 FR 55744).</content><note type="source"><p>Source Note: The provisions of this §113.1300 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1320"><num value="113.1320">§113.1320</num><heading>Hospital Ethylene Oxide Sterilizers Area Sources (40 Code of Federal Regulations Part 63, Subpart WWWWW)</heading><content>The Hospital Ethylene Oxide Sterilizers Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart WWWWW, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1320 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1340"><num value="113.1340">§113.1340</num><heading>Electric Arc Furnace Steelmaking Facilities Area Sources (40 Code of Federal Regulations Part 63, Subpart YYYYY)</heading><content>The Electric Arc Furnace Steelmaking Facilities Area Sources standard as specified in 40 Code of Federal Regulations Part 63, Subpart YYYYY, is incorporated by reference as adopted December 28, 2007 (72 FR 74088).</content><note type="source"><p>Source Note: The provisions of this §113.1340 adopted to be effective August 21, 2013, 38 TexReg 5295.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1350"><num value="113.1350">§113.1350</num><heading>Iron and Steel Foundries Area Sources (40 Code of Federal Regulations Part 63, Subpart ZZZZZ)</heading><content>The Iron and Steel Foundries Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart ZZZZZ, is incorporated by reference as amended through September 10, 2020 (85 FR 56080).</content><note type="source"><p>Source Note: The provisions of this §113.1350 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1370"><num value="113.1370">§113.1370</num><heading>Gasoline Distribution Bulk Terminals, Bulk Plants, and Pipeline Facilities Area Sources (40 Code of Federal Regulations Part 63, Subpart BBBBBB)</heading><content>The Gasoline Distribution Bulk Terminals, Bulk Plants, and Pipeline Facilities Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart BBBBBB, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1370 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1380"><num value="113.1380">§113.1380</num><heading>Gasoline Dispensing Facilities Area Sources (40 Code of Federal Regulations Part 63, Subpart CCCCCC)</heading><content>The Gasoline Dispensing Facilities Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart CCCCCC, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1380 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1390"><num value="113.1390">§113.1390</num><heading>Polyvinyl Chloride and Copolymers Production Area Sources (40 Code of Federal Regulations Part 63, Subpart DDDDDD)</heading><content>The Polyvinyl Chloride and Copolymers Production Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart DDDDDD, is incorporated by reference as amended through February 4, 2015 (80 FR 5938).</content><note type="source"><p>Source Note: The provisions of this §113.1390 adopted to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295; amended to be effective December 29, 2016, 41 TexReg 10352.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1400"><num value="113.1400">§113.1400</num><heading>Primary Copper Smelting Area Sources (40 Code of Federal Regulations Part 63, Subpart EEEEEE)</heading><content>The Primary Copper Smelting Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart EEEEEE, is incorporated by reference as amended through July 3, 2007 (72 FR 36363).</content><note type="source"><p>Source Note: The provisions of this §113.1400 adopted to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1410"><num value="113.1410">§113.1410</num><heading>Secondary Copper Smelting Area Sources (40 Code of Federal Regulations Part 63, Subpart FFFFFF)</heading><content>The Secondary Copper Smelting Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart FFFFFF, is incorporated by reference as amended through July 3, 2007 (72 FR 36363).</content><note type="source"><p>Source Note: The provisions of this §113.1410 adopted to be effective December 27, 2007, 32 TexReg 9698; amended to be effective August 21, 2013, 38 TexReg 5295.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1420"><num value="113.1420">§113.1420</num><heading>Primary Nonferrous Metals Area Sources - Zinc, Cadmium, and Beryllium (40 Code of Federal Regulations Part 63, Subpart GGGGGG)</heading><content>The Primary Nonferrous Metals Area Sources - Zinc, Cadmium, and Beryllium Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart GGGGGG, is incorporated by reference as adopted January 23, 2007 (72 FR 2930).</content><note type="source"><p>Source Note: The provisions of this §113.1420 adopted to be effective December 27, 2007, 32 TexReg 9698.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1425"><num value="113.1425">§113.1425</num><heading>Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources (40 Code of Federal Regulations Part 63, Subpart HHHHHH)</heading><content>The Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart HHHHHH, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1425 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1435"><num value="113.1435">§113.1435</num><heading>Industrial, Commercial, and Institutional Boilers Area Sources (40 Code of Federal Regulations Part 63, Subpart JJJJJJ)</heading><content>The Industrial, Commercial, and Institutional Boilers Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart JJJJJJ, is incorporated by reference as amended through September 14, 2016 (81 FR 63112).</content><note type="source"><p>Source Note: The provisions of this §113.1435 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1445"><num value="113.1445">§113.1445</num><heading>Acrylic and Modacrylic Fibers Production Area Sources (40 Code of Federal Regulations Part 63, Subpart LLLLLL)</heading><content>The Acrylic and Modacrylic Fibers Production Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart LLLLLL, is incorporated by reference as amended through March 26, 2008 (73 FR 15923).</content><note type="source"><p>Source Note: The provisions of this §113.1445 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1450"><num value="113.1450">§113.1450</num><heading>Carbon Black Production Area Sources (40 Code of Federal Regulations Part 63, Subpart MMMMMM)</heading><content>The Carbon Black Production Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart MMMMMM, is incorporated by reference as amended through November 19, 2021 (86 FR 66096).</content><note type="source"><p>Source Note: The provisions of this §113.1450 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1455"><num value="113.1455">§113.1455</num><heading>Chemical Manufacturing Area Sources: Chromium Compounds (40 Code of Federal Regulations Part 63, Subpart NNNNNN)</heading><content>The Chemical Manufacturing Area Sources: Chromium Compounds Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart NNNNNN, is incorporated by reference as amended through March 26, 2008 (73 FR 15923).</content><note type="source"><p>Source Note: The provisions of this §113.1455 adopted to be effective August 21, 2013, 38 TexReg 5295.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1460"><num value="113.1460">§113.1460</num><heading>Flexible Polyurethane Foam Production and Fabrication Area Sources (40 Code of Federal Regulations Part 63, Subpart OOOOOO)</heading><content>The Flexible Polyurethane Foam Production and Fabrication Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart OOOOOO, is incorporated by reference as amended through November 18, 2021 (86 FR 64385).</content><note type="source"><p>Source Note: The provisions of this §113.1460 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1465"><num value="113.1465">§113.1465</num><heading>Lead Acid Battery Manufacturing Area Sources (40 Code of Federal Regulations Part 63, Subpart PPPPPP)</heading><content>The Lead Acid Battery Manufacturing Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart PPPPPP, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1465 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1470"><num value="113.1470">§113.1470</num><heading>Wood Preserving Area Sources (40 Code of Federal Regulations Part 63, Subpart QQQQQQ)</heading><content>The Wood Preserving Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart QQQQQQ, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1470 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1475"><num value="113.1475">§113.1475</num><heading>Clay Ceramics Manufacturing Area Sources (40 Code of Federal Regulations Part 63, Subpart RRRRRR)</heading><content>The Clay Ceramics Manufacturing Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart RRRRRR, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1475 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1480"><num value="113.1480">§113.1480</num><heading>Glass Manufacturing Area Sources (40 Code of Federal Regulations Part 63, Subpart SSSSSS)</heading><content>The Glass Manufacturing Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart SSSSSS, is incorporated by reference as adopted December 26, 2007 (72 FR 73180).</content><note type="source"><p>Source Note: The provisions of this §113.1480 adopted to be effective August 21, 2013, 38 TexReg 5295.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1485"><num value="113.1485">§113.1485</num><heading>Secondary Nonferrous Metals Processing Area Sources (40 Code of Federal Regulations Part 63, Subpart TTTTTT)</heading><content>The Secondary Nonferrous Metals Processing Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart TTTTTT, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1485 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1495"><num value="113.1495">§113.1495</num><heading>Chemical Manufacturing Area Sources (40 Code of Federal Regulations Part 63, Subpart VVVVVV)</heading><content>The Chemical Manufacturing Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart VVVVVV, is incorporated by reference as amended through December 21, 2012 (77 FR 75740).</content><note type="source"><p>Source Note: The provisions of this §113.1495 adopted to be effective August 21, 2013, 38 TexReg 5295.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1500"><num value="113.1500">§113.1500</num><heading>Plating and Polishing Operations Area Sources (40 Code of Federal Regulations Part 63, Subpart WWWWWW)</heading><content>The Plating and Polishing Operations Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart WWWWWW, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1500 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1505"><num value="113.1505">§113.1505</num><heading>Nine Metal Fabrication and Finishing Area Sources (40 Code of Federal Regulations Part 63, Subpart XXXXXX)</heading><content>The Nine Metal Fabrication and Finishing Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart XXXXXX, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1505 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1510"><num value="113.1510">§113.1510</num><heading>Ferroalloys Production Facilities Area Sources (40 Code of Federal Regulations Part 63, Subpart YYYYYY)</heading><content>The Ferroalloys Production Facilities Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart YYYYYY, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1510 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1515"><num value="113.1515">§113.1515</num><heading>Aluminum, Copper, and Other Nonferrous Foundries Area Sources (40 Code of Federal Regulations Part 63, Subpart ZZZZZZ)</heading><content>The Aluminum, Copper, and Other Nonferrous Foundries Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart ZZZZZZ, is incorporated by reference as amended through September 10, 2009 (74 FR 46493).</content><note type="source"><p>Source Note: The provisions of this §113.1515 adopted to be effective August 21, 2013, 38 TexReg 5295.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1520"><num value="113.1520">§113.1520</num><heading>Asphalt Processing and Asphalt Roofing Manufacturing Area Sources (40 Code of Federal Regulations Part 63, Subpart AAAAAAA)</heading><content>The Asphalt Processing and Asphalt Roofing Manufacturing Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart AAAAAAA, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1520 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1525"><num value="113.1525">§113.1525</num><heading>Chemical Preparations Industry Area Sources (40 Code of Federal Regulations Part 63, Subpart BBBBBBB)</heading><content>The Chemical Preparations Industry Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart BBBBBBB, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1525 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1530"><num value="113.1530">§113.1530</num><heading>Paints and Allied Products Manufacturing Area Sources (40 Code of Federal Regulations Part 63, Subpart CCCCCCC)</heading><content>The Paints and Allied Products Manufacturing Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart CCCCCCC, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1530 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1535"><num value="113.1535">§113.1535</num><heading>Prepared Feeds Manufacturing Area Sources (40 Code of Federal Regulations Part 63, Subpart DDDDDDD)</heading><content>The Prepared Feeds Manufacturing Area Sources Generally Available Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart DDDDDDD, is incorporated by reference as amended through December 23, 2011 (76 FR 80261).</content><note type="source"><p>Source Note: The provisions of this §113.1535 adopted to be effective August 21, 2013, 38 TexReg 5295.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scC/s113.1555"><num value="113.1555">§113.1555</num><heading>Polyvinyl Chloride and Copolymers Production (40 Code of Federal Regulations Part 63, Subpart HHHHHHH)</heading><content>The Polyvinyl Chloride and Copolymers Production Maximum Achievable Control Technology standard as specified in 40 Code of Federal Regulations Part 63, Subpart HHHHHHH, is incorporated by reference as amended through November 19, 2020 (85 FR 73854).</content><note type="source"><p>Source Note: The provisions of this §113.1555 adopted to be effective August 21, 2013, 38 TexReg 5295; amended to be effective January 5, 2023, 47 TexReg 9007.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c113/scD"><num value="D">SUBCHAPTER D</num><heading>DESIGNATED FACILITIES AND POLLUTANTS</heading><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2060"><num value="113.2060">§113.2060</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Texas Natural Resource Conservation Commission (commission), the terms used in this division have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined in the TCAA, and in §101.1 of this title (relating to Definitions), the following words and terms, when used in this division shall have the following meanings, unless the context clearly indicates otherwise.(1) Construction--Fabrication, erection, or installation of an affected municipal solid waste landfill (MSWLF).(2) Existing municipal solid waste landfill--An MSWLF meeting the following conditions:(A) The MSWLF has accepted waste at any time since October 9, 1993, or has additional design capacity available for future waste deposition, regardless of whether that MSWLF is currently open or closed; and(B) Construction, reconstruction, or modification of the MSWLF was commenced before May 30, 1991 (i.e., the MSWLF is not subject to the requirements of 40 Code of Federal Regulations (CFR) Part 60, Subpart WWW).(3) Fixed capital cost--The capital needed to provide all the depreciable components.(4) Modification--Any physical change in, or change in the method of operation of, an existing MSWLF which increases the amount of any air pollutant (to which a standard applies) emitted into the atmosphere by that MSWLF or which results in the emission of any air pollutant (to which a standard applies) into the atmosphere not previously emitted. For MSWLFs, the only physical or operational change that results in increased landfill emissions is an increase in the landfill design capacity. Design capacity of a landfill is increased only with the addition of new disposal areas. New disposal areas can result by increasing the depth of refuse deposition, increasing refuse compaction, or by constructing additional disposal cells. Physical or operational changes made to an existing MSWLF solely to comply with this subchapter are not considered a modification and would not subject an existing MSWLF to the requirements of 40 CFR Part 60, Subpart WWW.(5) Reconstruction--The replacement of components of an existing MSWLF to such an extent that the fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable entirely new MSWLF, and it is technologically and economically feasible to meet the applicable standards set forth in this division. Physical or operational changes made to an existing MSWLF solely to comply with this subchapter are not considered reconstruction and would not subject an existing MSWLF to the requirements of 40 CFR Part 60, Subpart WWW.</content><note type="source"><p>Source Note: The provisions of this §113.2060 adopted to be effective October 29, 1998, 23 TexReg 10874.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2061"><num value="113.2061">§113.2061</num><heading>Standards for Air Emissions</heading><content>(a) An owner or operator of an existing municipal solid waste landfill (MSWLF) shall comply with all provisions specified in 40 Code of Federal Regulations (CFR) Part 60, §§60.751-60.759 as promulgated on March 12, 1996, and amended on August 17, 1998. For purposes of this rule, the term "Administrator" wherever it appears in 40 CFR Part 60, §§60.751-60.759 shall refer to the commission.(b) Gas collection and control systems approved by the commission and installed at an MSWLF in compliance with §115.152 of this title (relating to Control Requirements) satisfy the gas collection and control system design requirements of this section.</content><note type="source"><p>Source Note: The provisions of this §113.2061 adopted to be effective October 29, 1998, 23 TexReg 10874.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2067"><num value="113.2067">§113.2067</num><heading>Exemptions</heading><content>A municipal solid waste landfill (MSWLF) may apply for less stringent emission standards or longer compliance schedules than those otherwise required by this division, provided that the owner or operator demonstrates to the executive director and EPA, the following:(1) unreasonable cost of control resulting from MSWLF age, location, or basic MSWLF design;(2) physical impossibility of installing necessary control equipment; or(3) other factors specific to the MSWLF that make application of a less stringent standard or final compliance time significantly more reasonable.</content><note type="source"><p>Source Note: The provisions of this §113.2067 adopted to be effective October 29, 1998, 23 TexReg 10874.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2069"><num value="113.2069">§113.2069</num><heading>Compliance Schedule and Transition to 2016 Landfill Emission Guidelines</heading><content>(a) An owner or operator subject to the requirements of this division shall submit the initial design capacity report in accordance with 40 Code of Federal Regulations (CFR) Part 60, §60.757(a)(2) to the executive director within 90 days from the date the commission publishes notification in the Texas Register that the United States Environmental Protection Agency (EPA) has approved this rule. (b) An owner or operator of a municipal solid waste landfill with a design capacity equal to or greater than 2.5 million megagrams and 2.5 million cubic meters and subject to the requirements of this division shall also submit the initial non-methane organic compound emission rate report in accordance with 40 CFR §60.757(b)(2) to the executive director within 90 days from the date the commission publishes notification in the Texas Register that EPA has approved this rule. (c) On and after the implementation date specified in §113.2412 of this title, owners or operators of landfills subject to the requirements of this division shall instead comply with the applicable requirements of Division 6 of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §113.2069 adopted to be effective October 29, 1998, 23 TexReg 10874; amended to be effective July 19, 2023, 48 TexReg 3913.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2070"><num value="113.2070">§113.2070</num><heading>Definitions</heading><content>Unless specifically defined in the TCAA or in the rules of the commission, the terms used in this division have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined in the TCAA, §3.2 of this title (relating to Definitions), §101.1 of this title (relating to Definitions), and §113.1 of this title (relating to Definitions), the following words and terms, when used in this division, shall have the following meanings, unless the context clearly indicates otherwise. (1) Biologicals - Preparations made from living organisms and their products, including vaccines, cultures, etc., intended for use in diagnosing, immunizing, or treating humans or animals or in research pertaining thereto. (2) Blood products - Any product derived from human blood including, but not limited to, blood plasma, platelets, red or white blood corpuscles, and other derived licensed products, such as interferon, etc. (3) Body fluids - Liquid emanating or derived from humans and limited to blood, dialysate, amniotic, cerebrospinal, synovial, pleural, peritoneal and pericardial fluids; and semen and vaginal secretions. (4) Bypass stack - A device used for discharging combustion gases to avoid severe damage to the air pollution control device or other equipment. (5) Chemotherapeutic waste - Waste material resulting from the production or use of antineoplastic agents used for the purpose of stopping or reversing the growth of malignant cells. (6) Co-fired combustor/incinerator - A unit combusting hospital waste and/or medical/infectious waste with other fuels or wastes (e.g., coal, municipal solid waste) and subject to an enforceable requirement limiting the unit to combusting a fuel feed stream, 10% or less of the weight of which is comprised, in aggregate, of hospital waste and medical/infectious waste as measured on a calendar quarter basis. For the purposes of this definition, pathological waste, chemotherapeutic waste, and low-level radioactive waste are considered "other" wastes when calculating the percentage of hospital waste and medical/infectious waste combusted. (7) Commercial medical waste incinerator - A facility that accepts for incineration medical waste generated outside the property boundaries of the facility. (8) Dioxins/furans - The combined emissions of tetra- through octa-chlorinated dibenzi-para-dioxins and dibenzofurans, as measured by EPA Reference Method 23. (9) Dry scrubber - An add-on air pollution control system that injects dry alkaline sorbent (dry injection) or sprays an alkaline sorbent (spray dryer) to react with and neutralize acid gases in the incinerator exhaust stream forming a dry powder material. (10) Fabric filter (or baghouse) - An add-on air pollution control system that removes particulate matter and non-vaporous metals emissions by passing flue gas through filter bags. (11) Facilities manager - The individual in charge of purchasing, maintaining, and operating the hospital/medical/infectious waste incinerator (HMIWI) or the owner/operator's representative responsible for the management of the HMIWI. Alternative titles may include director of facilities or vice president of support services. (12) Good combustion practices - The minimum residence time and temperature in the secondary chamber as determined by the design of the incinerator, as well as the quantity and composition of the wastes incinerated, such that the incinerator can meet the emissions limits specified in §113.2072 of this title (relating to Emission Limits). (13) High-air phase - The stage of the batch operating cycle when the primary chamber reaches and maintains maximum operating temperatures. (14) Hospital - Any facility which has an organized medical staff, maintains at least six inpatient beds, and where the primary function of the institution is to provide diagnostic and therapeutic patient services and continuous nursing care primarily to human inpatients who are not related and who stay on average in excess of 24 hours per admission. This definition does not include facilities maintained for the sole purpose of providing nursing or convalescent care to human patients who generally are not acutely ill, but who require continuing medical supervision. (15) Hospital/medical/infectious waste incinerator (HMIWI) or HMIWI unit - Any device that combusts any amount of hospital waste and/or medical/infectious waste. (A) Batch HMIWI - An HMIWI unit that is designed such that neither waste charging nor ash removal can occur during combustion. (B) Continuous HMIWI - An HMIWI unit that is designed to allow waste charging and ash removal during combustion. (C) Intermittent HMIWI - An HMIWI unit that is designed to allow waste charging, but not ash removal, during combustion. (D) Large HMIWI - An HMIWI unit which has a maximum design waste combustor capacity that is greater than 500 pounds per hour (lb/hr), or a continuous or intermittent HMIWI unit which has a maximum charge rate that is greater than 500 lb/hr, or a batch HMIWI unit which has a maximum charge rate that is greater than 4,000 pounds per day. (E) Medium HMIWI - An HMIWI unit which has a maximum design waste combustor capacity that is greater than 200 lb/hr but less than or equal to 500 lb/hr, or a continuous or intermittent HMIWI unit which has a maximum charge rate that is greater than 200 lb/hr but less than or equal to 500 lb/hr, or a batch HMIWI unit which has a maximum charge rate that is greater than 1,600 pounds per day but less than or equal to 4,000 pounds per day. (F) Small HMIWI - An HMIWI unit which has a maximum design waste combustor capacity that is less than or equal to 200 lb/hr, or a continuous or intermittent HMIWI unit which has a maximum charge rate that is less than or equal to 200 lb/hr, or a batch HMIWI unit which has a maximum charge rate that is less than or equal to 1,600 pounds per day. (G) Small-remote HMIWI - A small HMIWI unit which is located more than 50 miles from the boundary of the nearest Standard Metropolitan Statistical Area (as defined in Office of Management and Budget Bulletin Number 93-17 entitled "Revised Statistical Definitions for Metropolitan Areas" dated June 30, 1993), and burns less than 2,000 pounds of waste per week. (16) Hospital waste - Discards generated at a hospital, except unused items returned to the manufacturer. The definition of hospital waste does not include human corpses, remains, and anatomical parts that are intended for interment or cremation. (17) Infectious agent - Any organism (such as a virus or bacteria) that is capable of being communicated by invasion and multiplication in body tissues and capable of causing diseases or adverse health impacts in humans. (18) Low-level radioactive waste - Waste material which contains radionuclides emitting primarily beta or gamma radiation, or both, in concentrations or quantities that exceed applicable federal or state standards for unrestricted release. Low-level radioactive waste is not high-level radioactive waste, spent nuclear fuel, or by-product material as defined by the Atomic Energy Act of 1954 (42 United States Code, §2014(e)(2)). (19) Malfunction - Any sudden, infrequent, and not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner. Failures that are caused, in part, by poor maintenance or careless operation are not malfunctions. During periods of malfunction the operator shall operate within established parameters as much as possible, and monitoring of all applicable operating parameters shall continue until all waste has been combusted or until the malfunction ceases, whichever comes first. (20) Maximum charge rate - For continuous and intermittent incinerators, 110% of the lowest three-hour average charge rate measured during the most recent performance test demonstrating compliance with all applicable emission limits; and for batch incinerators, 110% of the lowest daily charge rate measured during the most recent performance test demonstrating compliance with all applicable emission limits. (21) Maximum design waste burning capacity - (A) for intermittent and continuous incinerators, Attached Graphic(B) for batch incinerators, Attached Graphic(22) Maximum fabric filter inlet temperature - 110% of the lowest three-hour average temperature at the inlet to the fabric filter (taken, at a minimum, once every minute) measured during the most recent performance test demonstrating compliance with the dioxin/furan emission limit. (23) Maximum flue gas temperature - 110% of the lowest three-hour average temperature at the outlet from the wet scrubber (taken, at a minimum, once every minute) measured during the most recent performance test demonstrating compliance with the mercury (Hg) emission limit. (24) Medical waste - Waste generated by health-care-related facilities and associated with health-care activities, not including garbage or rubbish generated from offices, kitchens, or other non-health-care activities. The term includes special waste from health-care-related facilities which is comprised of animal waste, bulk blood and blood products, microbiological waste, pathological waste, and sharps as those terms are defined in 25 TAC §1.132 (relating to Definition, Treatment, and Disposition of Special Waste from Health-Care Related Facilities). The term does not include medical waste produced on farmland or ranchland as defined in Texas Agriculture Code, §252.001(6) (relating to Definitions - Farmland or Ranchland), nor does the term include artificial, nonhuman materials removed from a patient and requested by the patient including, but not limited to, orthopedic devices and breast implants. (25) Medical/infectious waste - Any waste generated in the diagnosis, treatment, or immunization of human beings or animals, in research pertaining thereto, or in the production or testing of the following biologicals: (A) cultures and stocks of infectious agents and associated biologicals, including: cultures from medical and pathological laboratories; cultures and stocks of infectious agents from research and industrial laboratories; wastes from the production of biologicals; discarded live and attenuated vaccines; and culture dishes and devices used to transfer, inoculate, and mix cultures; (B) human pathological waste, including: tissues; organs; and body parts and body fluids that are removed during surgery or autopsy, or other medical procedures; and specimens of body fluids and their containers; (C) human blood and blood products, including: liquid waste human blood; products of blood; items saturated and/or dripping with human blood; or items that were saturated and/or dripping with human blood that are now caked with dried human blood; including serum, plasma, and other blood components, and their containers, which were used or intended for use in either patient care, testing and laboratory analysis, or the development of pharmaceuticals. Intravenous bags are also included in this category; (D) sharps that have been used in animal or human patient care or treatment or in medical, research, or industrial laboratories, including: hypodermic needles; syringes (with or without the attached needle); Pasteur pipettes; scalpel blades; blood vials; needles with attached tubing; and culture dishes (regardless of presence of infectious agents). Also included are other types of broken or unbroken glassware that were in contact with infectious agents, such as slides and cover slips; (E) animal waste, including: contaminated animal carcasses, body parts, and bedding of animals that were known to have been exposed to infectious agents during research (including research in veterinary hospitals); production of biologicals; or testing of pharmaceuticals; (F) isolation wastes, including: biological waste and discarded materials contaminated with blood, excretions, exudates, or secretions from humans who are isolated to protect others from certain highly communicable diseases, or isolated animals known to be infected with highly communicable diseases; (G) unused sharps, including the following unused, discarded sharps: hypodermic needles; suture needles; syringes; and scalpel blades; and (H) does not include: hazardous waste identified or listed under the regulations in Title 40 Code of Federal Regulations Part 261 (40 CFR 261); household waste, as identified in 40 CFR 261.4(b)(1); ash from incineration of medical/infectious waste, once the incineration process has been completed; human corpses, remains, and anatomical parts that are intended for interment or cremation; and domestic sewage materials identified in 40 CFR 261.4(a)(1). (26) Minimum sorbent flow rate - 90% of the highest three-hour average sorbent flow rate (taken, at a minimum, once every hour) measured during the most recent performance test demonstrating compliance with the applicable (dioxin/furan, mercury, and hydrogen chloride) emission limit. (27) Minimum wet scrubber parameters - 90% of the highest three-hour average scrubber parameter (taken, at a minimum, once every minute) measured during the most recent performance test demonstrating compliance with the applicable emission limits. The parameters include: (A) horsepower or amperage to the scrubber; (B) pressure drop across the wet scrubber; (C) liquid flow rate at the scrubber inlet; and (D) liquid pH at the scrubber inlet. (28) Minimum secondary chamber temperature - 90% of the highest three-hour average secondary chamber temperature (taken, at a minimum, once every minute) measured during the most recent performance test demonstrating compliance with the particulate matter, carbon monoxide, or dioxin/furan emission limits. (29) Modification (or modified incinerator) - Any change to an incinerator unit after the effective date of these standards such that: (A) the cumulative costs of the modifications, over the life of the unit, exceed 50% of the original cost of the construction and installation of the unit (not including the cost of any land purchased in connection with such construction or installation) updated to current costs; or (B) the change involves a physical change in or change in the method of operation of the unit which increases the amount of any air pollutant emitted by the unit for which standards have been established under the FCAA, 42 United States Code, §7411 or §7429. (30) Operating day - A 24-hour period between 12:00 a.m., midnight and the following midnight during which any amount of hospital waste or medical/infectious waste is combusted at any time in the incinerator. (31) Operation - The period during which waste is combusted in the incinerator excluding periods of startup or shutdown. (32) Particulate matter - The total particulate matter emitted from an incinerator as measured by EPA Reference Method 5, concerning Determination of Particulate Emissions from Stationary Sources (40 CFR 60, Appendix A, 1999), or Reference Method 29, concerning Determination of Metals Emissions from Stationary Sources (40 CFR 60, Appendix A, 1999). (33) Pathological waste - Waste material consisting of only human or animal remains, anatomical parts, and/or tissue, the bags/containers used to collect and transport the waste material, and animal bedding (if applicable). (34) Primary chamber - The chamber in an incinerator that receives waste material in which the waste is ignited and from which ash is removed. (35) Pyrolysis - The endothermic gasification of hospital waste and/or medical/infectious waste using external energy. (36) Shutdown - The period of time after all waste has been combusted in the primary chamber. For continuous incinerators, shutdown shall commence no less than two hours after the last charge to the incinerator. For intermittent incinerators, shutdown shall commence no less than four hours after the last charge to the incinerator. For batch incinerators, shutdown shall commence no less than five hours after the high-air phase of combustion has been completed. (37) Standard conditions - A temperature of 68 degrees Fahrenheit (20 degrees Centigrade) and a pressure of 14.7 pounds per square inch (101.3 kilopascals). (38) Startup - The period of time between the activation of the system and the first charge to the unit. For batch incinerators, startup is the period of time between activation of the system and ignition of the waste. (39) Toxic equivalent quantity (TEQ) - For dioxins/furans, a TEQ basis=2,3,7,8-tetrachlorinated dibenzo-p-dioxin toxic equivalent based on the 1989 international toxic equivalency factors. (40) Wet scrubber - An add-on air pollution control device that utilized an alkaline scrubbing liquor to collect particulate matter (including non-vaporous metals and condensed organics) and/or to absorb and neutralize acid gases.</content><note type="source"><p>Source Note: The provisions of this §113.2070 adopted to be effective June 11, 2000, 25 TexReg 5365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2071"><num value="113.2071">§113.2071</num><heading>Designated Facilities</heading><content>(a) Except as specified in Table 1 of this subsection, the rules in this division apply to those designated facilities with existing hospital/medical/infectious waste incinerator (HMIWI) units for which construction was commenced on or before June 20, 1996. Attached Graphic(b) Physical or operational changes made to an existing HMIWI unit solely for the purpose of complying with the requirements of this division are not considered a modification as defined in §113.2070(28) of this title (relating to Definitions) and do not result in an existing HMIWI unit becoming subject to the provisions of 40 Code of Federal Regulations 60, Subpart Ec (relating to Standards of Performance for Hospital/Medical/Infectious Waste Incinerators for Which Construction is Commenced after June 20, 1996).</content><note type="source"><p>Source Note: The provisions of this §113.2071 adopted to be effective June 11, 2000, 25 TexReg 5365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2072"><num value="113.2072">§113.2072</num><heading>Emission Limits</heading><content>(a) All affected hospital/medical/infectious waste incinerator (HMIWI) units burning of medical waste, as defined in §113.2070 of this title (relating to Definitions), shall meet the emission limits specified in Table 2 of this subsection. The emission limits under this section apply at all times except during periods of startup, shutdown, or malfunction, provided that no hospital waste or medical/infectious waste is charged to the affected facility during startup, shutdown, or malfunction. Attached Graphic(b) All affected HMIWI units burning hospital waste or medical/infectious waste, as defined in §113.2070 of this title, shall comply with the following operational requirements: (1) be operated in accordance with good combustion practices as defined in §113.2070 of this title, and be equipped with a secondary chamber which retains all combustion gases for a minimum period of time and at a minimum temperature measured at the exit of the secondary chamber and recorded continuously, as determined by a performance test conducted in accordance with §113.2075 of this title (relating to Compliance and Performance Testing Requirements); (2) not exceed visible emissions of 5.0% opacity averaged over any six-minute period; and (3) file an abbreviated federal operating permit application with the executive director.</content><note type="source"><p>Source Note: The provisions of this §113.2072 adopted to be effective June 11, 2000, 25 TexReg 5365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2074"><num value="113.2074">§113.2074</num><heading>Inspection Requirements</heading><content>(a) Each small-remote hospital/medical/infectious waste incinerator (HMIWI) unit as defined in §113.2070 of this title (relating to Definitions) shall undergo an initial equipment inspection, followed by annual inspections. The initial inspection shall occur within one year following EPA approval of the state plan, and the annual inspection shall occur no later than 12 months after the previous equipment inspection and that is at least as protective as specified in Table 3 of this subsection. Attached Graphic(b) Each small-remote HMIWI unit shall complete all necessary repairs within ten operating days, but in no case longer than 30 calendar days, following an equipment inspection date where the problems were first noted, unless the owner or operator obtains written approval from the executive director, or a designated representative of the commission, establishing a date when all necessary repairs will be completed.</content><note type="source"><p>Source Note: The provisions of this §113.2074 adopted to be effective June 11, 2000, 25 TexReg 5365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2075"><num value="113.2075">§113.2075</num><heading>Compliance and Performance Testing Requirements</heading><content>(a) Except as provided in subsection (b) of this section, each hospital/medical/infectious waste incinerator (HMIWI) unit shall meet the following compliance and performance testing requirements. (1) The owner or operator of an affected facility shall ensure an initial performance test is conducted to determine compliance with the emission limits using the test methods and procedures listed in Table 4 of this paragraph and subparagraphs (A)-(H) of this paragraph. The use of the bypass stack during a performance test shall invalidate the performance test. Attached Graphic(A) All performance tests shall consist of a minimum of three test runs conducted under representative operating conditions. (B) The minimum sample time shall be one hour per test run unless otherwise indicated. (C) EPA Test Method 1 of 40 Code of Federal Regulations (CFR) 60, Appendix A, shall be used to select the sampling location and number of traverse points. (D) EPA Test Method 3 or 3A of Appendix A shall be used for gas composition analysis, including measurement of oxygen concentration. Method 3 or 3A shall be used simultaneously with each test method referenced in Table 4 of this paragraph. (E) The pollutant concentrations shall be adjusted to 7.0% oxygen using the following equation. Attached Graphic(F) If the affected facility has selected the toxic equivalent quantity method for dioxins/furans, the following procedures shall be used to determine compliance: (i) measure the concentration of each dioxin/furan tetra- through octa-cogener emitted using EPA Reference Method 23; (ii) for each dioxin/furan cogener, multiply the cogener concentration by its corresponding toxic equivalency factor specified in Table 5 of this clause; and Attached Graphic(iii) sum the products calculated in clause (ii) of this subparagraph to obtain the total concentration of dioxins/furans emitted in terms of toxic equivalency. (G) If the affected facility has selected the percentage reduction method for hydrogen chloride (HCl), the percentage reduction in HCl (%RHCl) is computed using the following formula. Attached Graphic(H) If the affected facility has selected the percentage reduction method for metals (lead, cadmium, or mercury), the percentage reduction of each metal (% Rmetal) is computed using the following formula. Attached Graphic(2) Following the date on which the initial performance test is completed or is required to be completed under §113.2079 of this title (relating to Compliance Schedules), whichever date comes first, the owner or operator of an affected facility shall: (A) determine compliance with the opacity limit by conducting an annual performance test (no more than 12 months following the previous performance test) using the applicable procedures and test methods listed in Table 4 of paragraph (1) of this subsection; (B) determine compliance with the particulate matter (PM), carbon monoxide (CO), and HCl emission limits by conducting an annual performance test (no more than 12 months following the previous performance test) using the applicable procedures and test methods listed in paragraph (1) of this subsection. If all three performance tests over a three-year period indicate compliance with the emission limit for a pollutant (PM, CO, or HCl), the owner or operator may forego a performance test for that pollutant for the subsequent two years. At a minimum, a performance test for PM, CO, or HCl shall be conducted every third year (no more than 36 months following the previous performance test). If a performance test conducted every third year indicates compliance with the emission limit for a pollutant (PM, CO, or HCl), the owner or operator may forego a performance test for that pollutant for an additional two years. If any performance test indicates noncompliance with the respective emission limit, a performance test for that pollutant shall be conducted annually until all annual performance tests over a three-year period indicate compliance with the emission limit. The use of the bypass stack during a performance test shall invalidate the performance test; and (C) facilities using a continuous emissions monitoring system (CEMS) to demonstrate compliance with any of the emission limits shall: (i) determine compliance with the appropriate emission limits using a 12-hour rolling average, calculated each hour as the average of the previous 12 operating hours (not including startup, shutdown, or malfunction); and (ii) operate all CEMS in accordance with the applicable procedures under 40 CFR 60, Appendixes B and F. (3) For an affected facility equipped with a dry scrubber followed by a fabric filter, a wet scrubber, or dry scrubber followed by both a fabric filter and a wet scrubber, the following conditions apply. (A) The owner or operator shall establish the appropriate maximum and minimum operating parameters, indicated in Table 6 of this subparagraph for each control system, as site specific operating parameters based on data obtained from the initial performance test to determine compliance with the emission limits. Attached Graphic(B) Following the date on which the initial performance test is completed or is required to be completed, whichever date comes first, the owner or operator shall ensure that the affected facility does not operate above any of the applicable maximum operating parameters or below any of the applicable minimum operating parameters listed in Table 6 of subparagraph (A) of this paragraph and measured as three-hour rolling averages (calculated each hour as the average of the previous three operating hours) at all times except during periods of startup, shutdown, and malfunction. Operating parameter limits do not apply during performance tests. Operation above the established maximum or below the established minimum operating parameters shall constitute a violation of established operating parameters. Except as provided in subparagraph (C) of this paragraph, operation of affected facilities outside of the operating parameter limit combinations as listed in Table 7 of this subparagraph shall constitute violations of the applicable emission standards. Attached Graphic(C) The owner or operator may conduct a repeat performance test within 30 days of violation of applicable operating parameters to demonstrate that the affected facility is not in violation of the applicable emission limits. Repeat performance tests conducted under this subparagraph shall be conducted using the identical operating parameters that indicated a violation under subparagraph (B) of this paragraph. (4) The owner or operator of an affected facility using an air pollution control device other than a dry scrubber followed by a fabric filter, a wet scrubber, or a dry scrubber followed by a fabric filter and a wet scrubber to comply with the emission limits under §113.2072 of this title (relating to Emission Limits), shall petition the executive director or his designated representative for other site-specific operating parameters to be established during the initial performance test and continuously monitored thereafter. The owner or operator shall not conduct the initial performance test until after the petition has been approved by the executive director or his designated representative. (5) The owner or operator of an affected facility may conduct a repeat performance test at any time to establish new values for the operating parameters. The executive director or his designated representative may also request a repeat performance test at any time. (b) Each small-remote HMIWI unit, as defined in §113.2070 of this title (relating to Definitions) shall demonstrate compliance with §113.2072 of this title by meeting the following compliance and performance testing requirements. (1) The owner or operator shall conduct the performance testing requirements in subsection (a)(1)(A)-(E) of this section; Table 4 of subsection (a)(1) of this section for opacity, PM, CO, dioxins/furans, and mercury; and subsection (a)(2)(A) of this section, as appropriate. The 2,000 pound per week limitation under §113.2072(a)(4) of this title does not apply during performance tests. (2) The owner or operator shall establish maximum charge rate and minimum secondary chamber temperature as site-specific operating parameters during the initial performance test to determine compliance with applicable emission limits. (3) Following the date on which the initial performance test is completed or is required to be completed under §113.2079 of this title, whichever date comes first, the owner or operator shall ensure that the designated facility does not operate above the maximum charge rate or below the minimum secondary chamber temperature measured as three-hour rolling averages (calculated each hour as the average of the previous three operating hours) at all times except during periods of startup, shutdown, and malfunction. Operating parameter limits do not apply during performance tests. Operation above the maximum charge rate or below the minimum secondary chamber temperature shall constitute a violation of the established operating parameters. (4) Except as provided in paragraph (5) of this subsection, operation of the designated facility above the maximum charge rate and below the minimum secondary chamber temperature on a three-hour rolling average simultaneously shall constitute a violation of the PM, CO, and dioxin/furan emission limits. (5) The owner or operator may conduct a repeat performance test within 30 days of violation of applicable operating parameters to demonstrate that the designated facility is not in violation of the applicable emission limits. Repeat performance tests conducted under this subsection must be conducted using the identical operating parameters that indicated a violation under paragraph (4) of this subsection. (c) Equivalent test methods may be approved by the executive director or his designated representative.</content><note type="source"><p>Source Note: The provisions of this §113.2075 adopted to be effective June 11, 2000, 25 TexReg 5365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2076"><num value="113.2076">§113.2076</num><heading>Monitoring, Reporting, and Recordkeeping Requirements</heading><content>(a) Monitoring Requirements for Affected Facilities. Except as provided in subsection (b) of this section, the owner or operator of a hospital/medical/infectious waste incinerator (HMIWI) unit, as defined in §113.2070 of this title (relating to Definitions) shall comply with the following monitoring requirements. (1) The owner or operator of an affected facility shall install, calibrate (to manufacturers' specifications), maintain, and operate devices (or establish methods) for monitoring the applicable maximum and minimum operating parameters listed in Table 6, §113.2075(a)(3)(A) of this title (relating to Compliance and Performance Testing Requirements), such that these devices (or methods) measure and record values for these operating parameters at the frequencies indicated in Table 6, §113.2075(a)(3)(A) of this title, at all times, except during periods of startup and shutdown. (2) The owner or operator of an affected facility shall install, calibrate (to manufacturers' specifications), maintain, and operate a device or method for measuring the use of the bypass stack including date, time, and duration. (3) The owner or operator of an affected facility using some method other than a dry scrubber followed by a fabric filter, a wet scrubber, or a dry scrubber followed by a fabric filter and a wet scrubber to comply with the emission limits under §113.2072 of this title (relating to Emission Limits) shall install, calibrate (to manufacturers' specifications), maintain, and operate the equipment necessary to monitor the site-specific operating parameters developed under §113.2075(a)(5) of this title. (4) The owner or operator of an affected facility shall obtain monitoring data at all times during HMIWI operation except during periods of monitoring equipment malfunction, calibration, or repair. At a minimum, valid monitoring data shall be obtained for 75% of the operating hours per day and for 90% of the operating days per calendar quarter that the affected facility is combusting hospital waste and/or medical/infectious waste. (5) Commercial medical waste incinerators and HMIWI units burning more than 200 (medium and large units) pounds per hour of hospital waste or medical/infectious waste shall be equipped with continuous emissions monitoring systems (CEMS) which measure and record in-stack carbon monoxide (CO) in addition to the other requirements of this section. Compliance with the CO limits specified in Table 1, §113.2071(a) of this title (relating to Designated Facilities) may be demonstrated using a rolling hourly average. The rolling hourly average shall be defined as the arithmetic mean of the 60 most recent one-minute concentrations measured by the CEMS. (6) HMIWI units may be equipped with certified continuous opacity monitoring systems (COMS) which measure and record exhaust plume opacity. Compliance with the opacity limits specified in §113.2072(b)(2) of this title may be demonstrated using a rolling hourly average. The rolling hourly average shall be defined as the arithmetic mean of the 60 most recent one-minute opacity values measured by the COMS. (7) Except in the case of incinerators with COMS, CO CEMS, or equivalent monitors approved by the executive director or his designated representative, the incinerator shall be limited in hours of operation from one hour after sunrise to one hour before sunset. (b) Monitoring Requirements for Small-Remote HMIWI Units. The owner or operator of a small-remote HMIWI unit, as defined in §113.2070 of this title shall comply with the following monitoring requirements. (1) The owner or operator shall install, calibrate (to manufacturers' specifications), maintain, and operate a device for measuring and recording the temperature of the secondary chamber on a continuous basis, the output of which shall be recorded, at a minimum, once every minute throughout operation. (2) The owner or operator shall install, calibrate (to manufacturers' specifications), maintain, and operate a device which automatically measures and records the date, time, and weight of each charge fed into the HMIWI. (3) The owner or operator shall obtain monitoring data at all times during HMIWI operation except during periods of monitoring equipment malfunction, calibration, or repair. At a minimum, valid monitoring data shall be obtained for 75% of the operating hours per day and for 90% of the operating days per calendar quarter that the designated facility is combusting hospital waste and/or medical/infectious waste. (c) Reporting and Recordkeeping Requirements for Affected HMIWI Units. Except as provided in subsections (d) - (f) of this section, the owner or operator of an HMIWI unit, as defined in §113.2070 of this title shall comply with the following reporting and recordkeeping requirements. The owner or operator of an affected facility shall maintain the information (as applicable) listed in Table 8 of this subsection. This information shall be maintained on-site for a period of at least five years in paper copy, computer-readable format, or an alternative format approved by the executive director or his designated representative. The information shall be made available upon request by authorized representatives of the commission, the EPA, or local air pollution control agencies. Attached Graphic(d) Reporting and Recordkeeping Requirements for Small-Remote HMIWI Units. The owner or operator of a small-remote HMIWI unit, as defined in §113.2070 of this title shall comply with the following reporting and recordkeeping requirements: (1) maintain records of the annual equipment inspections, any required maintenance, and any repairs not completed within ten operating days of an inspection. This information shall be maintained on-site for a period of at least five years in paper copy, computer-readable format, or an alternative format approved by the executive director or his designated representative. The information shall be made available upon request by authorized representatives of the commission, the EPA, or local air pollution control agencies; and (2) submit an annual report containing information recorded under paragraph (1) of this subsection no later than 60 days following the year in which data was collected. Subsequent reports shall be sent no later than 12 calendar months following the previous report, unless the HMIWI unit is subject to permitting requirements under Title V of the FCAA, when the reports must be submitted semiannually. The report shall be signed by the facilities manager. (e) Reporting and Recordkeeping Requirements for Units Burning Only Pathological Waste, Low-level Radioactive Waste, and/or Chemotherapeutic Waste. Combustors and incinerators burning only pathological waste, low-level radioactive waste, and/or chemotherapeutic waste, all as defined in §113.2070 of this title, are exempt from all requirements of this division with the exception of the following reporting and recordkeeping requirements provided that the owner or operator of the combustor: (1) files an exemption claim with the executive director or his designated representative, with a copy to the EPA, Region VI, within one year of the effective date of this division; and (2) keeps records on a calendar quarter basis of the periods of time when only pathological waste, low-level radioactive waste, and/or chemotherapeutic waste is burned. (f) Reporting and Recordkeeping Requirements for Co-fired Combustors. Any co-fired combustor, as defined in §113.2070 of this title, is not subject to this division provided that the owner/operator of the combustor: (1) files an exemption claim with the executive director or his designated representative, with a copy to the EPA, Region VI, within one year of the effective date of this division; (2) provides an estimate of the relative weight of hospital waste, medical/infectious waste, and other fuels and/or wastes to be combusted; and (3) keeps records on a calendar quarter basis of the weight of hospital waste and medical/infectious waste combusted, and the weight of all other fuels and wastes combusted at the co-fired combustor.</content><note type="source"><p>Source Note: The provisions of this §113.2076 adopted to be effective June 11, 2000, 25 TexReg 5365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2077"><num value="113.2077">§113.2077</num><heading>Waste Management Plan</heading><content>The owner or operator of the affected facility shall prepare a waste management plan. The plan shall identify both the feasibility and the approach to separate certain components of solid waste from the health care waste stream in order to reduce the amount of toxic emissions from incinerated waste. A waste management plan may include, but is not limited to, consideration of solid waste components such as paper, cardboard, plastics, glass, battery, or metal recycling; or purchasing recycled or recyclable products. A plan may include different goals or approaches for different areas or departments of the facility and need not include new waste management goals for every waste stream. It should identify, where possible, reasonably available additional waste management measures, taking into account the effectiveness of waste management measures already in place, the costs of additional measures, the emission reductions expected to be achieved, and any other environmental or energy impacts they might have. The American Hospital Association publication entitled "An Ounce of Prevention: Waste Reduction Strategies for Health Care Facilities," dated 1993, shall be considered in the development of the waste management plan.</content><note type="source"><p>Source Note: The provisions of this §113.2077 adopted to be effective June 11, 2000, 25 TexReg 5365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2078"><num value="113.2078">§113.2078</num><heading>Operating Procedures and Operator Training/Qualification Requirements</heading><content>(a) Operating Procedure Documentation. The owner or operator of a hospital/medical/ infectious waste incinerator (HMIWI) unit subject to the requirements of this division shall document their operating procedures as specified in Table 9 of this subsection, and maintain the information listed in a readily accessible location for all HMIWI operators. This information, along with records of training shall be available for inspection by the commission, the EPA, or the local air pollution control agency. The owner or operator of an affected facility shall establish a program for reviewing the information listed in Table 9 of this subsection annually with each HMIWI operator for the purpose of maintaining proficiency of the operators. The initial review shall be conducted within six months after the effective date of this division or prior to assumption of responsibilities affecting HMIWI operation, whichever date is later. Attached Graphic(b) Training and Qualification. No owner or operator of an affected facility shall allow the affected facility to operate at any time unless a fully trained and qualified HMIWI operator is accessible, either at the facility or available within one hour. The trained and qualified HMIWI operator may operate the HMIWI directly or be the direct supervisor of one or more HMIWI operators. (1) The minimum requirements for operator training are specified in Table 10 of this paragraph and shall be obtained through any course which meets these requirements. Attached Graphic(2) Qualification shall be obtained by: (A) completion of a training course that satisfies the criteria under paragraph (1) of this subsection; and (B) either six months experience as an HMIWI operator, six months experience as a direct supervisor of an HMIWI operator, or completion of at least two burn cycles under the observation of two qualified HMIWI operators. (3) Qualification is valid for a period of one year beginning on the date on which the examination is passed or the completion of the required experience, whichever is later. (4) To maintain qualification, the trained and qualified HMIWI operator shall complete and pass an annual review or refresher course of at least four hours covering the requirements in Table 10 of paragraph (1) of this subsection. A lapsed qualification shall be renewed by one of the following methods. (A) For those operators whose qualification has lapsed less than three years, the re-qualification requirements shall include successfully completing annual refresher training described in Table 10 of paragraph (1) of this subsection. (B) For those operators whose qualification has lapsed three years or longer, the re-qualification requirements shall include repeating the initial classroom training.</content><note type="source"><p>Source Note: The provisions of this §113.2078 adopted to be effective June 11, 2000, 25 TexReg 5365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2079"><num value="113.2079">§113.2079</num><heading>Compliance Schedules</heading><content>(a) Within 60 days from the date the commission publishes notice in the Texas Register that the EPA has approved these rules and state plan, an owner or operator subject to the requirements of this division shall submit to the executive director a notice of intention to comply with these requirements within one year after EPA approval, a petition requesting a compliance extension, a notice of intention to shut down their hospital/medical/infectious waste incinerator (HMIWI) unit, or a petition requesting an extension of the shutdown date. The executive director will approve or deny a petition for compliance or shutdown extension within 60 days of receipt of the petition. (1) Except as provided in paragraph (2) of this subsection, an owner or operator subject to the requirements of this division shall be in compliance with all provisions of this division on or before the date one year after EPA approval of these rules and state plan, regardless of whether a designated facility is identified in the state plan inventory. (2) An owner or operator who files a petition requesting a compliance extension shall comply with the requirements in Table 11 of this paragraph. The compliance schedule may be extended to allow compliance on or before the date three years after EPA approval of these rules and state plan, but in no case will a compliance extension be granted for a compliance date later than September 15, 2002. Attached Graphic(3) Except as provided in paragraph (4) of this subsection, any HMIWI unit for which the owner or operator has filed a notice of intention to shut down will complete the shutdown on or before the date one year after EPA approval of these rules and state plan. (4) An owner or operator who files a petition requesting a shutdown extension shall comply with the requirements in Table 12 of this paragraph. The shutdown schedule may be extended to allow compliance on or before the date three years after EPA approval of these rules and state plan, but in no case will a compliance extension be granted for a compliance date later than September 15, 2002. Attached Graphic(b) An owner or operator subject to the requirements of this division shall be in compliance with the operator training and qualification requirements specified in §113.2078(b) of this title (relating to Operating Procedures and Operator Training/Qualification Requirements) and the inspection requirements specified in §113.2078(c) of this title on or before the date one year after EPA approval of these rules and state plan. Any owner or operator who has been granted an extended compliance schedule shall be in compliance with any additional operator training and qualification requirements and inspection requirements necessitated by the addition of air pollution control equipment on or before the extended compliance date granted by the executive director. (c) An owner or operator of an affected HMIWI unit subject to the requirements of the federal operating permits program shall submit an abbreviated application to the executive director on or before September 15, 2000.</content><note type="source"><p>Source Note: The provisions of this §113.2079 adopted to be effective June 11, 2000, 25 TexReg 5365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2100"><num value="113.2100">§113.2100</num><heading>Definitions</heading><content>Terms used but not defined in this division are defined in the Federal Clean Air Act and in 40 Code of Federal Regulations Part 60, Subparts A and B. (1) Administrator--The administrator of the United States Environmental Protection Agency or his/her authorized representative or the administrator of a state air pollution control agency. (2) Air curtain incinerator--An incinerator that operates by forcefully projecting a curtain of air across an open chamber or pit in which combustion occurs. Incinerators of that type can be constructed above or below ground and with or without refractory walls and floor. (3) Batch municipal waste combustion unit--A municipal waste combustion unit designed so it cannot combust municipal solid waste continuously 24 hours per day because the design does not allow waste to be fed to the unit or ash to be removed during combustion. (4) Calendar quarter--Three consecutive months (nonoverlapping) beginning on: January 1, April 1, July 1, or October 1. (5) Calendar year--365 (or 366 consecutive days in leap years) consecutive days starting on January 1 and ending on December 31. (6) Chief facility operator--The person in direct charge and control of the operation of a municipal waste combustion unit. That person is responsible for daily onsite supervision, technical direction, management, and overall performance of the municipal waste combustion unit. (7) Class I units--Small municipal waste combustion units subject to this division that are located at municipal waste combustion plants with an aggregate plant combustion capacity greater than 250 tons per day of municipal solid waste. See the definition in this section of "Municipal waste combustion plant capacity" for specification of which units at a plant site are included in the aggregate capacity calculation. (8) Class II units--Small municipal combustion units subject to this division that are located at municipal waste combustion plants with aggregate plant combustion capacity less than or equal to 250 tons per day of municipal solid waste. See the definition in this section of "Municipal waste combustion plant capacity" for specification of which units at a plant site are included in the aggregate capacity calculation. (9) Clean wood--Untreated wood or untreated wood products including clean untreated lumber, tree stumps (whole or chipped), and tree limbs (whole or chipped). Clean wood does not include two items: (A) "Yard waste," which is defined elsewhere in this section. (B) Construction, renovation, or demolition wastes (for example, railroad ties and telephone poles) that are exempt from the definition of "Municipal solid waste" in this section. (10) Co-fired combustion unit--A unit that combusts municipal solid waste with nonmunicipal solid waste fuel (for example, coal, industrial process waste). To be considered a co-fired combustion unit, the unit must be subject to a federally enforceable permit that limits it to combusting a fuel feed stream which is 30 percent or less (by weight) municipal solid waste as measured each calendar quarter. (11) Continuous burning--The continuous, semicontinuous, or batch feeding of municipal solid waste to dispose of the waste, produce energy, or provide heat to the combustion system in preparation for waste disposal or energy production. Continuous burning does not mean the use of municipal solid waste solely to thermally protect the grate or hearth during the startup period when municipal solid waste is not fed to the grate or hearth. (12) Continuous emission monitoring system--A monitoring system that continuously measures the emissions of a pollutant from a municipal waste combustion unit. (13) Dioxins/furans--Tetra-through octachlorinated dibenzo-p-dioxins and dibenzofurans. (14) Effective date of state plan approval--The effective date that the United States Environmental Protection Agency (EPA) approves the state plan. The Federal Register specifies the date in the notice that announces the EPA's approval of the state plan. (15) Eight-hour block average--The average of all hourly emission concentrations or parameter levels when the municipal waste combustion unit operates and combusts municipal solid waste measured over any of three 8-hour periods of time: (A) 12:00 midnight to 8:00 a.m. (B) 8:00 a.m. to 4:00 p.m. (C) 4:00 p.m. to 12:00 midnight. (16) Federally enforceable--All limits and conditions the administrator can enforce (including the requirements of 40 Code of Federal Regulations (CFR) Parts 60, 61, and 63), requirements in a state's implementation plan, and any permit requirements established under 40 CFR §52.21 or under 40 CFR §51.18 and 40 CFR §51.24. (17) First calendar half--The period that starts on January 1 and ends on June 30 in any year. (18) Fluidized bed combustion unit--A unit where municipal waste is combusted in a fluidized bed of material. The fluidized bed material may remain in the primary combustion zone or may be carried out of the primary combustion zone and returned through a recirculation loop. (19) Four-hour block average or 4-hour block average--The average of all hourly emission concentrations or parameter levels when the municipal waste combustion unit operates and combusts municipal solid waste measured over any of six 4-hour periods: (A) 12:00 midnight to 4:00 a.m. (B) 4:00 a.m. to 8:00 a.m. (C) 8:00 a.m. to 12:00 noon. (D) 12:00 noon to 4:00 p.m. (E) 4:00 p.m. to 8:00 p.m. (F) 8:00 p.m. to 12:00 midnight. (20) Mass burn refractory municipal waste combustion unit--A field-erected municipal waste combustion unit that combusts municipal solid waste in a refractory wall furnace. Unless otherwise specified, that includes municipal waste combustion units with a cylindrical rotary refractory wall furnace. (21) Mass burn rotary waterwall municipal waste combustion unit--A field-erected municipal waste combustion unit that combusts municipal solid waste in a cylindrical rotary waterwall furnace. (22) Mass burn waterwall municipal waste combustion unit--A field-erected municipal waste combustion unit that combusts municipal solid waste in a waterwall furnace. (23) Maximum demonstrated load of a municipal waste combustion unit--The highest 4-hour block arithmetic average municipal waste combustion unit load achieved during 4 consecutive hours in the course of the most recent dioxins/furans stack test that demonstrates compliance with the applicable emission limit for dioxins/furans specified in this division. (24) Maximum demonstrated temperature of the particulate matter control device--The highest 4-hour block arithmetic average flue gas temperature measured at the inlet of the particulate matter control device during 4 consecutive hours in the course of the most recent stack test for dioxins/furans emissions that demonstrates compliance with the limits specified in this division. (25) Medical/infectious waste--Any waste meeting the definition of "medical/infectious waste" in 40 Code of Federal Regulations §60.51c. (26) Mixed fuel-fired (pulverized coal/refuse-derived fuel) combustion unit--A combustion unit that combusts coal and refuse-derived fuel simultaneously, in which pulverized coal is introduced into an air stream that carries the coal to the combustion chamber of the unit where it is combusted in suspension. That includes both conventional pulverized coal and micropulverized coal. (27) Modification or modified municipal waste combustion unit--A municipal waste combustion unit you have changed after June 6, 2001, and that meets one of two criteria: (A) The cumulative cost of the changes over the life of the unit exceeds 50 percent of the original cost of building and installing the unit (not including the cost of land) updated to current costs. (B) Any physical change in the municipal waste combustion unit or change in the method of operating it that increases the emission level of any air pollutant for which new source performance standards have been established under the Federal Clean Air Act, §111 or §129. Increases in the emission level of any air pollutant are determined when the municipal waste combustion unit operates at 100 percent of its physical load capability and are measured downstream of all air pollution control devices. Load restrictions based on permits or other nonphysical operational restrictions cannot be considered in the determination. (28) Modular excess-air municipal waste combustion unit--A municipal waste combustion unit that combusts municipal solid waste, is not field-erected, and has multiple combustion chambers, all of which are designed to operate at conditions with combustion air amounts in excess of theoretical air requirements. (29) Modular starved-air municipal waste combustion unit--A municipal waste combustion unit that combusts municipal solid waste, is not field-erected, and has multiple combustion chambers in which the primary combustion chamber is designed to operate at substoichiometric conditions. (30) Municipal solid waste or municipal-type solid waste--Household, commercial/retail, or institutional waste. Household waste includes material discarded by residential dwellings, hotels, motels, and other similar permanent or temporary housing. Commercial/retail waste includes material discarded by stores, offices, restaurants, warehouses, nonmanufacturing activities at industrial facilities, and other similar establishments or facilities. Institutional waste includes materials discarded by schools, by hospitals (nonmedical), by nonmanufacturing activities at prisons and government facilities, and other similar establishments or facilities. Household, commercial/retail, and institutional waste does include yard waste and refuse-derived fuel. Household, commercial/retail, and institutional waste does not include used oil; sewage sludge; wood pallets; construction, renovation, and demolition wastes (which include railroad ties and telephone poles); clean wood; industrial process or manufacturing wastes; medical waste; or motor vehicles (including motor vehicle parts or vehicle fluff). (31) Municipal waste combustion plant--One or more municipal waste combustion units -at the same location as specified under Applicability of State Plans (40 Code of Federal Regulations §60.1550(a)). (32) Municipal waste combustion plant capacity--The aggregate municipal waste combustion capacity of all municipal waste combustion units at the plant that are not subject to 40 Code of Federal Regulations Part 60, Subparts Ea, Eb, or AAAA. (33) Municipal waste combustion unit--Any setting or equipment that combusts solid, liquid, or gasified municipal solid waste including, but not limited to, field-erected combustion units (with or without heat recovery), modular combustion units (starved-air or excess-air), boilers (for example, steam generating units), furnaces (whether suspension-fired, grate-fired, mass-fired, air curtain incinerators, or fluidized bed-fired), and pyrolysis/combustion units. Two criteria further define municipal waste combustion units: (A) Municipal waste combustion units do not include pyrolysis or combustion units located at a plastics or rubber recycling unit as specified under Applicability of State Plans (40 Code of Federal Regulations §60.1555(h) and (i)). Municipal waste combustion units do not include cement kilns that combust municipal solid waste. Municipal waste combustion units also do not include internal combustion engines, gas turbines, or other combustion devices that combust landfill gases collected by landfill gas collection systems. (B) The boundaries of a municipal waste combustion unit are defined as follows. The municipal waste combustion unit includes, but is not limited to, the municipal solid waste fuel feed system, grate system, flue gas system, bottom ash system, and the combustion unit water system. The municipal waste combustion unit does not include air pollution control equipment, the stack, water treatment equipment, or the turbine-generator set. The municipal waste combustion unit boundary starts at the municipal solid waste pit or hopper and extends through three areas. (i) The combustion unit flue gas system, which ends immediately after the heat recovery equipment or, if there is no heat recovery equipment, immediately after the combustion chamber. (ii) The combustion unit bottom ash system, which ends at the truck loading station or similar equipment that transfers the ash to final disposal. It includes all ash handling systems connected to the bottom ash handling system. (iii) The combustion unit water system, which starts at the feed water pump and ends at the piping that exits the steam drum or superheater. (34) Particulate matter--Total particulate matter emitted from municipal waste combustion units as measured using United States Environmental Protection Agency Reference Method 5 in 40 Code of Federal Regulations Part 60, Appendix A and the procedures specified in §113.2142 of this title (relating to What test methods must I use to stack test?). (35) Plastics or rubber recycling unit--An integrated processing unit for which plastics, rubber, or rubber tires are the only feed materials (incidental contaminants may be in the feed materials). The feed materials are processed and marketed to become input feed stock for chemical plants or petroleum refineries. The following three criteria further define a plastics or rubber recycling unit: (A) Each calendar quarter, the combined weight of the feed stock that a plastics or rubber recycling unit produces must be more than 70 percent of the combined weight of the plastics, rubber, and rubber tires that recycling unit processes. (B) The plastics, rubber, or rubber tires fed to the recycling unit may originate from separating or diverting plastics, rubber, or rubber tires from municipal or industrial solid waste. The feed materials may include manufacturing scraps, trimmings, and off-specification plastics, rubber, and rubber tire discards. (C) The plastics, rubber, and rubber tires fed to the recycling unit may contain incidental contaminants (for example, paper labels on plastic bottles or metal rings on plastic bottle caps). (36) Potential hydrogen chloride emissions--The level of emissions from a municipal waste combustion unit that would occur from combusting municipal solid waste without emission controls for acid gases. (37) Potential mercury emissions--The level of emissions from a municipal waste combustion unit that would occur from combusting municipal solid waste without controls for mercury emissions. (38) Potential sulfur dioxide emissions--The level of emissions from a municipal waste combustion unit that would occur from combusting municipal solid waste without emission controls for acid gases. (39) Pyrolysis/combustion unit--A unit that produces gases, liquids, or solids by heating municipal solid waste. The gases, liquids, or solids produced are combusted and the emissions vented to the atmosphere. (40) Reconstruction--Rebuilding a municipal waste combustion unit and meeting two criteria: (A) The reconstruction begins after June 6, 2001. (B) The cumulative cost of the construction over the life of the unit exceeds 50 percent of the original cost of building and installing the municipal waste combustion unit (not including land) updated to current costs (current dollars). To determine what systems are within the boundary of the municipal waste combustion unit used to calculate the costs, see the definition in this section of "Municipal waste combustion unit." (41) Refractory unit or refractory wall furnace--A municipal waste combustion unit that has no energy recovery (such as through a waterwall) in the furnace of the municipal waste combustion unit. (42) Refuse-derived fuel--A type of municipal solid waste produced by processing municipal solid waste through shredding and size classification. That includes all classes of refuse-derived fuel including two fuels: (A) Low-density fluff refuse-derived fuel through densified refuse-derived fuel. (B) Pelletized refuse-derived fuel. (43) Same location--The same or contiguous properties under common ownership or control, including those separated only by a street, road, highway, or other public right-of-way. Common ownership or control includes properties that are owned, leased, or operated by the same entity, parent entity, subsidiary, subdivision, or any combination thereof. Entities may include a municipality, other governmental unit, or any quasi-governmental authority (for example, a public utility district or regional authority for waste disposal). (44) Second calendar half--The period that starts on July 1 and ends on December 31 in any year. (45) Shift supervisor--The person who is in direct charge and control of operating a municipal waste combustion unit and who is responsible for onsite supervision, technical direction, management, and overall performance of the municipal waste combustion unit during an assigned shift. (46) Spreader stoker, mixed fuel-fired (coal/refuse-derived fuel) combustion unit--municipal waste combustion unit that combusts coal and refuse-derived fuel simultaneously, in which coal is introduced to the combustion zone by a mechanism that throws the fuel onto a grate from above. Combustion takes place both in suspension and on the grate. (47) Standard conditions--When referring to units of measure, a temperature of 20 degrees Celsius and a pressure of 101.3 kilopascals. (48) Startup period--The period when a municipal waste combustion unit begins the continuous combustion of municipal solid waste. It does not include any warmup period during which the municipal waste combustion unit combusts fossil fuel or other solid waste fuel but receives no municipal solid waste. (49) State--Any of the 50 United States and the protectorates of the United States. (50) State plan--A plan submitted pursuant to the Federal Clean Air Act, §111(d) and §129(b)(2) and 40 Code of Federal Regulations Part 60, Subpart B, that implements and enforces this division. (51) Stoker (refuse-derived fuel) combustion unit--A steam generating unit that combusts refuse-derived fuel in a semisuspension combusting mode, using air-fed distributors. (52) Total mass dioxins/furans or total mass--The total mass of tetra-through octachlorinated dibenzo-p-dioxins and dibenzofurans as determined using United States Environmental Protection Agency Reference Method 23 in 40 Code of Federal Regulations Part 60, Appendix A and the procedures specified in §113.2142 of this title (relating to What test methods must I use to stack test?). (53) Twenty-four hour daily average or 24-hour daily average--Either the arithmetic mean or geometric mean (as specified) of all hourly emission concentrations when the municipal waste combustion unit operates and combusts municipal solid waste measured during the 24 hours between 12:00 midnight and the following midnight. (54) Untreated lumber--Wood or wood products that have been cut or shaped and include wet, air-dried, and kiln-dried wood products. Untreated lumber does not include wood products that have been painted, pigment-stained, or pressure-treated by compounds such as chromate copper arsenate, pentachlorophenol, and creosote. (55) Waterwall furnace--A municipal waste combustion unit that has energy (heat) recovery in the furnace (for example, radiant heat transfer section) of the combustion unit. (56) Yard waste--Grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs. They come from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands. Yard waste does not include two items: (A) Construction, renovation, and demolition wastes that are exempt from the definition of "Municipal solid waste" in this section. (B) Clean wood that is exempt from the definition of "Municipal solid waste" in this section.</content><note type="source"><p>Source Note: The provisions of this §113.2100 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2101"><num value="113.2101">§113.2101</num><heading>What are my requirements for meeting increments of progress and achieving final compliance?</heading><content>(a) Class I units. If you plan to achieve compliance more than 1 year following the effective date of state plan approval and a permit modification is not required, or more than 1 year following the date of issuance of a revised construction or operating permit if a permit modification is required, you must meet five increments of progress:(1) Submit a final control plan.(2) Submit a notification of retrofit contract award.(3) Initiate onsite construction.(4) Complete onsite construction.(5) Achieve final compliance.(b) Class II units. If you plan to achieve compliance more than 1 year following the effective date of state plan approval and a permit modification is not required, or more than 1 year following the date of issuance of a revised construction or operating permit if a permit modification is required, you must meet two increments of progress:(1) Submit a final control plan.(2) Achieve final compliance.</content><note type="source"><p>Source Note: The provisions of this §113.2101 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2102"><num value="113.2102">§113.2102</num><heading>When must I complete each increment of progress?</heading><content>Table 1 in §113.2174 of this title (relating to Tables Relating to Division 3) specifies compliance dates for each of the increments of progress for Class I and II units. (See §113.2100 of this title (relating to Definitions) for definitions of classes.)</content><note type="source"><p>Source Note: The provisions of this §113.2102 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2103"><num value="113.2103">§113.2103</num><heading>What must I include in the notifications of achievement of my increments of progress?</heading><content>Your notification of achievement of increments of progress must include three items:(1) Notification that the increment of progress has been achieved.(2) Any items required to be submitted with the increment of progress (§§113.2106 through 113.2110 of this title (relating to How do I comply with the increment of progress for submittal of a control plan? How do I comply with the increment of progress for awarding contracts? How do I comply with the increment of progress for initiating onsite construction? How do I comply with the increment of progress for completing onsite construction? and How do I comply with the increment of progress for achieving final compliance?)).(3) The notification must be signed by the owner or operator of the municipal waste combustion unit.</content><note type="source"><p>Source Note: The provisions of this §113.2103 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2104"><num value="113.2104">§113.2104</num><heading>When must I submit the notifications of achievement of increments of progress?</heading><content>Notifications of the achievement of increments of progress must be postmarked no later than 10 days after the compliance date for the increment.</content><note type="source"><p>Source Note: The provisions of this §113.2104 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2105"><num value="113.2105">§113.2105</num><heading>What if I do not meet an increment of progress?</heading><content>If you fail to meet an increment of progress, you must submit a notification to the executive director postmarked within 10 business days after the specified date in Table 1 in §113.2174 of this title (relating to Tables Relating to Division 3) for achieving that increment of progress. The notification must inform the executive director that you did not meet the increment. You must include in the notification an explanation of why the increment of progress was not met and your plan for meeting the increment as expeditiously as possible. You must continue to submit reports on the first day of each subsequent month until the increment of progress is met.</content><note type="source"><p>Source Note: The provisions of this §113.2105 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2106"><num value="113.2106">§113.2106</num><heading>How do I comply with the increment of progress for submittal of a control plan?</heading><content>For your control plan increment of progress, you must complete two items:(1) Submit the final control plan, including a description of the devices for air pollution control and process changes that you will use to comply with the emission limits and other requirements of this division.(2) You must maintain a copy of the final control plan at the same location as the solid waste incineration unit.</content><note type="source"><p>Source Note: The provisions of this §113.2106 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2107"><num value="113.2107">§113.2107</num><heading>How do I comply with the increment of progress for awarding contracts?</heading><content>You must submit to the executive director a signed copy of the contracts awarded to initiate onsite construction, initiate onsite installation of emission control equipment, and incorporate process changes. Submit the copy of the contracts with the notification that the increment of progress has been achieved to the executive director. You do not need to include documents incorporated by reference or the attachments to the contracts.</content><note type="source"><p>Source Note: The provisions of this §113.2107 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2108"><num value="113.2108">§113.2108</num><heading>How do I comply with the increment of progress for initiating onsite construction?</heading><content>You must initiate onsite construction and installation of emission control equipment and initiate the process changes outlined in the final control plan.</content><note type="source"><p>Source Note: The provisions of this §113.2108 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2109"><num value="113.2109">§113.2109</num><heading>How do I comply with the increment of progress for completing onsite construction?</heading><content>You must complete onsite construction and installation of emission control equipment and complete process changes outlined in the final control plan.</content><note type="source"><p>Source Note: The provisions of this §113.2109 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2110"><num value="113.2110">§113.2110</num><heading>How do I comply with the increment of progress for achieving final compliance?</heading><content>For the final compliance increment of progress, you must complete two items:(1) Complete all process changes and complete retrofit construction as specified in the final control plan.(2) Connect the air pollution control equipment with the municipal waste combustion unit identified in the final control plan and complete process changes to the municipal waste combustion unit so that if the affected municipal waste combustion unit is brought online, all necessary process changes and air pollution control equipment are operating as designed.</content><note type="source"><p>Source Note: The provisions of this §113.2110 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2111"><num value="113.2111">§113.2111</num><heading>What must I do if I close my municipal waste combustion unit and then restart my municipal waste combustion unit?</heading><content>(a) If you close your municipal waste combustion unit but will reopen it prior to the final compliance date in your state plan, you must meet the increments of progress specified in §113.2101 of this title (relating to What are my requirements for meeting increments of progress and achieving final compliance?).(b) If you close your municipal waste combustion unit but will restart it after your final compliance date, you must complete emission control retrofit and meet the emission limits and good combustion practices on the date your municipal waste combustion unit restarts operation.</content><note type="source"><p>Source Note: The provisions of this §113.2111 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2112"><num value="113.2112">§113.2112</num><heading>What must I do if I plan to permanently close my municipal waste combustion unit and not restart it?</heading><content>(a) If you plan to close your municipal waste combustion unit rather than comply with the state plan, you must submit a closure notification, including the date of closure, to the executive director by the date your final control plan is due.(b) If the closure date is later than 1 year after the effective date of state plan approval, you must enter into a legally binding closure agreement with the executive director by the date your final control plan is due. The agreement must specify the date by which operation will cease.</content><note type="source"><p>Source Note: The provisions of this §113.2112 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2113"><num value="113.2113">§113.2113</num><heading>What types of training must I do?</heading><content>There are two types of required training:(1) Training of operators of municipal waste combustion units using the United States Environmental Protection Agency or a state-approved training course.(2) Training of plant personnel using a plant-specific training course.</content><note type="source"><p>Source Note: The provisions of this §113.2113 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2114"><num value="113.2114">§113.2114</num><heading>Who must complete the operator training course? By when?</heading><content>(a) Three types of employees must complete the United States Environmental Protection Agency (EPA) or state-approved operator training course:(1) Chief facility operators.(2) Shift supervisors.(3) Control room operators.(b) Those employees must complete the operator training course by the later of three dates:(1) One year after the effective date of state plan approval.(2) Six months after your municipal waste combustion unit starts up.(3) The date before an employee assumes responsibilities that affect operation of the municipal waste combustion unit.(c) The requirement in subsection (a) of this section does not apply to chief facility operators, shift supervisors, and control room operators who have obtained full certification from the American Society of Mechanical Engineers on or before the effective date of state plan approval.(d) You may request that the EPA waive the requirement in subsection (a) of this section for chief facility operators, shift supervisors, and control room operators who have obtained provisional certification from the American Society of Mechanical Engineers on or before the effective date of state plan approval.</content><note type="source"><p>Source Note: The provisions of this §113.2114 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2115"><num value="113.2115">§113.2115</num><heading>Who must complete the plant-specific training course?</heading><content>All employees with responsibilities that affect how a municipal waste combustion unit operates must complete the plant-specific training course. Include at least six types of employees:(1) Chief facility operators.(2) Shift supervisors.(3) Control room operators.(4) Ash handlers.(5) Maintenance personnel.(6) Crane or load handlers.</content><note type="source"><p>Source Note: The provisions of this §113.2115 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2116"><num value="113.2116">§113.2116</num><heading>What plant-specific training must I provide?</heading><content>For plant-specific training, you must do four things:(1) For training at a particular plant, develop a specific operating manual for that plant by the later of two dates:(A) Six months after your municipal waste combustion unit starts up.(B) One year after the effective date of state plan approval.(2) Establish a program to review the plant-specific operating manual with people whose responsibilities affect the operation of your municipal waste combustion unit. Complete the initial review by the later of three dates:(A) One year after the effective date of state plan approval.(B) Six months after your municipal waste combustion unit starts up.(C) The date before an employee assumes responsibilities that affect operation of the municipal waste combustion unit.(3) Update your manual annually.(4) Review your manual with staff annually.</content><note type="source"><p>Source Note: The provisions of this §113.2116 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2117"><num value="113.2117">§113.2117</num><heading>What information must I include in the plant-specific operating manual?</heading><content>You must include 11 items in the operating manual for your plant:(1) A summary of all applicable requirements in this division.(2) A description of the basic combustion principles that apply to municipal waste combustion units.(3) Procedures for receiving, handling, and feeding municipal solid waste.(4) Procedures to be followed during periods of startup, shutdown, and malfunction of the municipal waste combustion unit.(5) Procedures for maintaining a proper level of combustion air supply.(6) Procedures for operating the municipal waste combustion unit in compliance with the requirements contained in this division.(7) Procedures for responding to periodic upset or off-specification conditions.(8) Procedures for minimizing carryover of particulate matter.(9) Procedures for handling ash.(10) Procedures for monitoring emissions from the municipal waste combustion unit.(11) Procedures for recordkeeping and reporting.</content><note type="source"><p>Source Note: The provisions of this §113.2117 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2118"><num value="113.2118">§113.2118</num><heading>Where must I keep the plant-specific operating manual?</heading><content>You must keep your operating manual in an easily accessible location at your plant. It must be available for review or inspection by all employees who must review it and by the executive director.</content><note type="source"><p>Source Note: The provisions of this §113.2118 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2119"><num value="113.2119">§113.2119</num><heading>What types of operator certification must the chief facility operator and shift supervisor obtain and by when must they obtain it?</heading><content>(a) Each chief facility operator and shift supervisor must obtain and keep a current provisional operator certification from the American Society of Mechanical Engineers (QRO - 1 - 1994) (incorporated by reference in 40 Code of Federal Regulations (CFR) §60.17(h)(1)) or a current provisional operator certification from your state certification program.(b) Each chief facility operator and shift supervisor must obtain a provisional certification by the later of three dates:(1) For Class I units, 12 months after the effective date of state plan approval. For Class II units, 18 months after the effective date of state plan approval.(2) Six months after the municipal waste combustion unit starts up.(3) Six months after they transfer to the municipal waste combustion unit or 6 months after they are hired to work at the municipal waste combustion unit.(c) Each chief facility operator and shift supervisor must take one of three actions:(1) Obtain a full certification from the American Society of Mechanical Engineers or a state certification program in your state.(2) Schedule a full certification exam with the American Society of Mechanical Engineers (QRO - 1 - 1994) (incorporated by reference in 40 CFR §60.17(h)(1)).(3) Schedule a full certification exam with your state certification program.(d) The chief facility operator and shift supervisor must obtain the full certification or be scheduled to take the certification exam by the later of the following dates:(1) For Class I units, 12 months after the effective date of state plan approval. For Class II units, 18 months after the effective date of state plan approval.(2) Six months after the municipal waste combustion unit starts up.(3) Six months after they transfer to the municipal waste combustion unit or 6 months after they are hired to work at the municipal waste combustion unit.</content><note type="source"><p>Source Note: The provisions of this §113.2119 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2120"><num value="113.2120">§113.2120</num><heading>After the required date for operator certification, who may operate the municipal waste combustion unit?</heading><content>After the required date for full or provisional certification, you must not operate your municipal waste combustion unit unless one of four employees is on duty:(1) A fully certified chief facility operator.(2) A provisionally certified chief facility operator who is scheduled to take the full certification exam.(3) A fully certified shift supervisor.(4) A provisionally certified shift supervisor who is scheduled to take the full certification exam.</content><note type="source"><p>Source Note: The provisions of this §113.2120 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2121"><num value="113.2121">§113.2121</num><heading>What if all the certified operators must be temporarily offsite?</heading><content>If the certified chief facility operator and certified shift supervisor both are unavailable, a provisionally certified control room operator at the municipal waste combustion unit may fulfill the certified operator requirement. Depending on the length of time that a certified chief facility operator and certified shift supervisor are away, you must meet one of three criteria:(1) When the certified chief facility operator and certified shift supervisor are both offsite for 12 hours or less and no other certified operator is onsite, the provisionally certified control room operator may perform those duties without notice to, or approval by, the executive director.(2) When the certified chief facility operator and certified shift supervisor are offsite for more than 12 hours, but for 2 weeks or less, and no other certified operator is onsite, the provisionally certified control room operator may perform those duties without notice to, or approval by, the executive director. However, you must record the periods when the certified chief facility operator and certified shift supervisor are offsite and include the information in the annual report as specified under §113.2161(12) of this title (relating to What must I include in my annual report?).(3) When the certified chief facility operator and certified shift supervisor are offsite for more than 2 weeks, and no other certified operator is onsite, the provisionally certified control room operator may perform those duties without prior notice to, or approval by, the executive director. However, you must take two actions:(A) Notify the executive director in writing within 10 days after the end of the 2-week period. In the notice, state what caused the absence and what you are doing to ensure that a certified chief facility operator or certified shift supervisor is onsite.(B) Submit a status report and corrective action summary to the executive director every 4 weeks following the initial notification. If the executive director notifies you that your status report or corrective action summary is disapproved, the municipal waste combustion unit may continue operation for 90 days, but then must cease operation. If corrective actions are taken in the 90-day period such that the executive director withdraws the disapproval, municipal waste combustion unit operation may continue.</content><note type="source"><p>Source Note: The provisions of this §113.2121 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2122"><num value="113.2122">§113.2122</num><heading>What are the operating practice requirements for my municipal waste combustion unit?</heading><content>(a) You must not operate your municipal waste combustion unit at loads greater than 110 percent of the maximum demonstrated load of the municipal waste combustion unit (4-hour block average), as specified in §113.2100 of this title (relating to Definitions).(b) You must not operate your municipal waste combustion unit so that the temperature at the inlet of the particulate matter control device exceeds 17 degrees Celsius above the maximum demonstrated temperature of the particulate matter control device (4-hour block average), as specified in §113.2100 of this title.(c) If your municipal waste combustion unit uses activated carbon to control dioxins/furans or mercury emissions, you must maintain an 8-hour block average carbon feed rate at or above the highest average level established during the most recent dioxins/furans or mercury test.(d) If your municipal waste combustion unit uses activated carbon to control dioxins/furans or mercury emissions, you must evaluate total carbon usage for each calendar quarter. The total amount of carbon purchased and delivered to your municipal waste combustion plant must be at or above the required quarterly usage of carbon. At your option, you may choose to evaluate required quarterly carbon usage on a municipal waste combustion unit basis for each individual municipal waste combustion unit at your plant. Calculate the required quarterly usage of carbon using equation 4 or 5 in §113.2171(f) of this title (relating to What equations must I use?).(e) Your municipal waste combustion unit is exempt from limits on load level, temperature at the inlet of the particulate matter control device, and carbon feed rate during any of five situations:(1) During your annual tests for dioxins/furans.(2) During your annual mercury tests (for carbon feed rate requirements only).(3) During the 2 weeks preceding your annual tests for dioxins/furans.(4) During the 2 weeks preceding your annual mercury tests (for carbon feed rate requirements only).(5) Whenever the executive director permits you to do any of five activities:(A) Evaluate system performance.(B) Test new technology or control technologies.(C) Perform diagnostic testing.(D) Perform other activities to improve the performance of your municipal waste combustion unit.(E) Perform other activities to advance the state of the art for emission controls for your municipal waste combustion unit.</content><note type="source"><p>Source Note: The provisions of this §113.2122 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2123"><num value="113.2123">§113.2123</num><heading>What happens to the operating requirements during periods of startup, shutdown, and malfunction?</heading><content>(a) The operating requirements of this division apply at all times except during periods of municipal waste combustion unit startup, shutdown, or malfunction.(b) Each startup, shutdown, or malfunction must not last for longer than 3 hours.</content><note type="source"><p>Source Note: The provisions of this §113.2123 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2124"><num value="113.2124">§113.2124</num><heading>What pollutants are regulated by this division?</heading><content>Eleven pollutants, in four groupings, are regulated:(1) Organics. Dioxins/furans.(2) Metals.(A) Cadmium.(B) Lead.(C) Mercury.(D) Opacity.(E) Particulate matter.(3) Acid gases.(A) Hydrogen chloride.(B) Nitrogen oxides.(C) Sulfur dioxide.(4) Other.(A) Carbon monoxide.(B) Fugitive ash.</content><note type="source"><p>Source Note: The provisions of this §113.2124 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2125"><num value="113.2125">§113.2125</num><heading>What emission limits must I meet? By when?</heading><content>(a) After the date the initial stack test and continuous emission monitoring system evaluation are required or completed (whichever is earlier), you must meet the applicable emission limits specified in the four tables of this division:(1) For Class I units, see Tables 2 and 3 in §113.2174 of this title (relating to Tables Relating to Division 3).(2) For Class II units, see Table 4 in §113.2174 of this title.(3) For carbon monoxide emission limits for both classes of units, see Table 5 in §113.2174 of this title.(b) If your Class I municipal waste combustion unit began construction, reconstruction, or modification after June 26, 1987, then you must comply with the dioxins/furans and mercury emission limits specified in Table 2 in §113.2174 of this title as applicable by the later of the following two dates:(1) One year after the effective date of state plan approval.(2) One year after the issuance of a revised construction or operating permit, if a permit modification is required. Final compliance with the dioxins/furans limits must be achieved no later than December 6, 2005, even if the date 1 year after the issuance of a revised construction or operating permit is later than December 6, 2005.</content><note type="source"><p>Source Note: The provisions of this §113.2125 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2126"><num value="113.2126">§113.2126</num><heading>What happens to the emission limits during periods of startup, shutdown, and malfunction?</heading><content>(a) The emission limits of this division apply at all times except during periods of municipal waste combustion unit startup, shutdown, or malfunction.(b) Each startup, shutdown, or malfunction must not last for longer than 3 hours.(c) A maximum of 3 hours of test data can be dismissed from compliance calculations during periods of startup, shutdown, or malfunction.(d) During startup, shutdown, or malfunction periods longer than 3 hours, emissions data cannot be discarded from compliance calculations and all provisions under 40 Code of Federal Regulations §60.11(d) apply.</content><note type="source"><p>Source Note: The provisions of this §113.2126 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2127"><num value="113.2127">§113.2127</num><heading>What types of continuous emission monitoring must I perform?</heading><content>To continuously monitor emissions, you must perform four tasks:(1) Install continuous emission monitoring systems for certain gaseous pollutants.(2) Make sure your continuous emission monitoring systems are operating correctly.(3) Make sure you obtain the minimum amount of monitoring data.(4) Install a continuous opacity monitoring system.</content><note type="source"><p>Source Note: The provisions of this §113.2127 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2128"><num value="113.2128">§113.2128</num><heading>What continuous emission monitoring systems must I install for gaseous pollutants?</heading><content>(a) You must install, calibrate, maintain, and operate continuous emission monitoring systems for oxygen (or carbon dioxide), sulfur dioxide, and carbon monoxide. If you operate a Class I municipal waste combustion unit, also install, calibrate, maintain, and operate a continuous emission monitoring system for nitrogen oxides. Install the continuous emission monitoring systems for sulfur dioxide, nitrogen oxides, and oxygen (or carbon dioxide) at the outlet of the air pollution control device.(b) You must install, evaluate, and operate each continuous emission monitoring system according to the "Monitoring Requirements" in 40 Code of Federal Regulations (CFR) §60.13.(c) You must monitor the oxygen (or carbon dioxide) concentration at each location where you monitor sulfur dioxide and carbon monoxide. Additionally, if you operate a Class I municipal waste combustion unit, you must also monitor the oxygen (or carbon dioxide) concentration at the location where you monitor nitrogen oxides.(d) You may choose to monitor carbon dioxide instead of oxygen as a diluent gas. If you choose to monitor carbon dioxide, then an oxygen monitor is not required and you must follow the requirements in §113.2133 of this title (relating to What must I do if I choose to monitor carbon dioxide instead of oxygen as a diluent gas?).(e) If you choose to demonstrate compliance by monitoring the percent reduction of sulfur dioxide, you must also install continuous emission monitoring systems for sulfur dioxide and oxygen (or carbon dioxide) at the inlet of the air pollution control device.(f) If you prefer to use an alternative sulfur dioxide monitoring method, such as parametric monitoring, or cannot monitor emissions at the inlet of the air pollution control device to determine percent reduction, you can apply to the executive director for approval to use an alternative monitoring method under 40 CFR §60.13(i).</content><note type="source"><p>Source Note: The provisions of this §113.2128 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2129"><num value="113.2129">§113.2129</num><heading>How are the data from the continuous emission monitoring systems used?</heading><content>You must use data from the continuous emission monitoring systems for sulfur dioxide, nitrogen oxides, and carbon monoxide to demonstrate continuous compliance with the applicable emission limits specified in Tables 2, 3, 4, and 5 in §113.2174 of this title (relating to Tables Relating to Division 3). To demonstrate compliance for dioxins/furans, cadmium, lead, mercury, particulate matter, opacity, hydrogen chloride, and fugitive ash, see §113.2140 of this title (relating to How are the stack test data used?).</content><note type="source"><p>Source Note: The provisions of this §113.2129 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2130"><num value="113.2130">§113.2130</num><heading>How do I make sure my continuous emission monitoring systems are operating correctly?</heading><content>(a) Conduct initial, daily, quarterly, and annual evaluations of your continuous emission monitoring systems that measure oxygen (or carbon dioxide), sulfur dioxide, nitrogen oxides (Class I municipal waste combustion units only), and carbon monoxide.(b) Complete your initial evaluation of the continuous emission monitoring systems within 180 days after your final compliance date.(c) For initial and annual evaluations, collect data concurrently (or within 30 to 60 minutes) using your oxygen (or carbon dioxide) continuous emission monitoring system, your sulfur dioxide, nitrogen oxides, or carbon monoxide continuous emission monitoring systems, as appropriate, and the appropriate test methods specified in Table 6 in §113.2174 of this title (relating to Tables Relating to Division 3). Collect the data during each initial and annual evaluation of your continuous emission monitoring systems following the applicable performance specifications in 40 Code of Federal Regulations (CFR) Part 60, Appendix B. Table 7 in §113.2174 of this title shows the performance specifications that apply to each continuous emission monitoring system.(d) Follow the quality assurance procedures in Procedure 1 of 40 CFR Part 60, Appendix F for each continuous emission monitoring system. The procedures include daily calibration drift and quarterly accuracy determinations.</content><note type="source"><p>Source Note: The provisions of this §113.2130 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2131"><num value="113.2131">§113.2131</num><heading>Am I exempt from any 40 Code of Federal Regulations Part 60, Appendix B or Appendix F requirements to evaluate continuous emission monitoring systems?</heading><content>Yes, the accuracy tests for your sulfur dioxide continuous emission monitoring system require you to also evaluate your oxygen (or carbon dioxide) continuous emission monitoring system. Therefore, your oxygen (or carbon dioxide) continuous emission monitoring system is exempt from two requirements:(1) Section 2.3 of Performance Specification 3 in 40 Code of Federal Regulations Part 60, Appendix B (relative accuracy requirement).(2) Section 5.1.1 of 40 Code of Federal Regulations Part 60, Appendix F (relative accuracy test audit).</content><note type="source"><p>Source Note: The provisions of this §113.2131 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2132"><num value="113.2132">§113.2132</num><heading>What is my schedule for evaluating continuous emission monitoring systems?</heading><content>(a) Conduct annual evaluations of your continuous emission monitoring systems no more than 13 months after the previous evaluation was conducted.(b) Evaluate your continuous emission monitoring systems daily and quarterly as specified in 40 Code of Federal Regulations Part 60, Appendix F.</content><note type="source"><p>Source Note: The provisions of this §113.2132 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2133"><num value="113.2133">§113.2133</num><heading>What must I do if I choose to monitor carbon dioxide instead of oxygen as a diluent gas?</heading><content>You must establish the relationship between oxygen and carbon dioxide during the initial evaluation of your continuous emission monitoring systems. You may reestablish the relationship during annual evaluations. To establish the relationship use three procedures:(1) Use United States Environmental Protection Agency (EPA) Reference Method 3A or 3B in 40 Code of Federal Regulations (CFR) Part 60, Appendix A to determine oxygen concentration at the location of your carbon dioxide monitor.(2) Conduct at least three test runs for oxygen. Make sure each test run represents a 1-hour average and that sampling continues for at least 30 minutes in each hour.(3) Use the fuel-factor equation in EPA Reference Method 3B in 40 CFR Part 60, Appendix A to determine the relationship between oxygen and carbon dioxide.</content><note type="source"><p>Source Note: The provisions of this §113.2133 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2134"><num value="113.2134">§113.2134</num><heading>What is the minimum amount of monitoring data I must collect with my continuous emission monitoring systems and is the data collection requirement enforceable?</heading><content>(a) Where continuous emission monitoring systems are required, obtain 1-hour arithmetic averages. Make sure the averages for sulfur dioxide, nitrogen oxides (Class I municipal waste combustion units only), and carbon monoxide are in parts per million by dry volume at 7 percent oxygen (or the equivalent carbon dioxide level). Use the 1-hour averages of oxygen (or carbon dioxide) data from your continuous emission monitoring system to determine the actual oxygen (or carbon dioxide) level and to calculate emissions at 7 percent oxygen (or the equivalent carbon dioxide level).(b) Obtain at least two data points per hour in order to calculate a valid 1-hour arithmetic average. 40 Code of Federal Regulations §60.13(e)(2) requires your continuous emission monitoring systems to complete at least one cycle of operation (sampling, analyzing, and data recording) for each 15-minute period.(c) Obtain valid 1-hour averages for 75 percent of the operating hours per day for 90 percent of the operating days per calendar quarter. An operating day is any day the unit combusts any municipal solid waste or refuse-derived fuel.(d) If you do not obtain the minimum data required in subsections (a) through (c) of this section, you are in violation of the data collection requirement regardless of the emission level monitored, and you must notify the executive director according to §113.2161(5) of this title (relating to What must I include in my annual report?).(e) If you do not obtain the minimum data required in subsections (a) through (c) of this section, you must still use all valid data from the continuous emission monitoring systems in calculating emission concentrations and percent reductions in accordance with §113.2135 of this title (relating to How do I convert my 1-hour arithmetic averages into appropriate averaging times and units?).</content><note type="source"><p>Source Note: The provisions of this §113.2134 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2135"><num value="113.2135">§113.2135</num><heading>How do I convert my 1-hour arithmetic averages into appropriate averaging times and units?</heading><content>(a) Use the equation in §113.2171(a) of this title (relating to What equations must I use?) to calculate emissions at 7 percent oxygen.(b) Use United States Environmental Protection Agency (EPA) Reference Method 19 in 40 Code of Federal Regulations (CFR) Part 60, Appendix A, §4.3, to calculate the daily geometric average concentrations of sulfur dioxide emissions. If you are monitoring the percent reduction of sulfur dioxide, use EPA Reference Method 19 in 40 CFR Part 60, Appendix A, §5.4, to determine the daily geometric average percent reduction of potential sulfur dioxide emissions.(c) If you operate a Class I municipal waste combustion unit, use EPA Reference Method 19 in 40 CFR Part 60, Appendix A, §4.1, to calculate the daily arithmetic average for concentrations of nitrogen oxides.(d) Use EPA Reference Method 19 in 40 CFR Part 60, Appendix A, §4.1, to calculate the 4-hour or 24-hour daily block averages (as applicable) for concentrations of carbon monoxide.</content><note type="source"><p>Source Note: The provisions of this §113.2135 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2136"><num value="113.2136">§113.2136</num><heading>What is required for my continuous opacity monitoring system and how are the data used?</heading><content>(a) Install, calibrate, maintain, and operate a continuous opacity monitoring system.(b) Install, evaluate, and operate each continuous opacity monitoring system according to 40 Code of Federal Regulations (CFR) §60.13.(c) Complete an initial evaluation of your continuous opacity monitoring system according to Performance Specification 1 in 40 CFR Part 60, Appendix B. Complete the evaluation by 180 days after your final compliance date.(d) Complete each annual evaluation of your continuous opacity monitoring system no more than 13 months after the previous evaluation.(e) Use tests conducted according to United States Environmental Protection Agency Reference Method 9 in 40 CFR Part 60, Appendix A, as specified in §113.2142 of this title (relating to What test methods must I use to stack test?), to determine compliance with the opacity limit in Table 2 or 4 in §113.2174 of this title (relating to Tables Relating to Division 3). The data obtained from your continuous opacity monitoring system are not used to determine compliance with the opacity limit.</content><note type="source"><p>Source Note: The provisions of this §113.2136 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2137"><num value="113.2137">§113.2137</num><heading>What additional requirements must I meet for the operation of my continuous emission monitoring systems and continuous opacity monitoring system?</heading><content>Use the required span values and applicable performance specifications in Table 8 in §113.2174 of this title (relating to Tables Relating to Division 3).</content><note type="source"><p>Source Note: The provisions of this §113.2137 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2138"><num value="113.2138">§113.2138</num><heading>What must I do if any of my continuous emission monitoring systems are temporarily unavailable to meet the data collection requirements?</heading><content>Refer to Table 8 in §113.2174 of this title (relating to Tables Relating to Division 3). It shows alternate methods for collecting data when systems malfunction or when repairs, calibration checks, or zero and span checks keep you from collecting the minimum amount of data.</content><note type="source"><p>Source Note: The provisions of this §113.2138 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2139"><num value="113.2139">§113.2139</num><heading>What types of stack tests must I conduct?</heading><content>Conduct initial and annual stack tests to measure the emission levels of dioxins/furans, cadmium, lead, mercury, particulate matter, opacity, hydrogen chloride, and fugitive ash.</content><note type="source"><p>Source Note: The provisions of this §113.2139 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2140"><num value="113.2140">§113.2140</num><heading>How are the stack test data used?</heading><content>You must use results of stack tests for dioxins/furans, cadmium, lead, mercury, particulate matter, opacity, hydrogen chloride, and fugitive ash to demonstrate compliance with the applicable emission limits in Tables 2 and 4 in §113.2174 of this title (relating to Tables Relating to Division 3). To demonstrate compliance for carbon monoxide, nitrogen oxides, and sulfur dioxide, see §113.2129 of this title (relating to How are the data from the continuous emission monitoring systems used?).</content><note type="source"><p>Source Note: The provisions of this §113.2140 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2141"><num value="113.2141">§113.2141</num><heading>What schedule must I follow for the stack testing?</heading><content>(a) Conduct initial stack tests for the pollutants listed in §113.2139 of this title (relating to What types of stack tests must I conduct?) by 180 days after your final compliance date.(b) Conduct annual stack tests for the same pollutants after the initial stack test. Conduct each annual stack test no later than 13 months after the previous stack test.</content><note type="source"><p>Source Note: The provisions of this §113.2141 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2142"><num value="113.2142">§113.2142</num><heading>What test methods must I use to stack test?</heading><content>(a) Follow Table 8 in §113.2174 of this title (relating to Tables Relating to Division 3) to establish the sampling location and to determine pollutant concentrations, number of traverse points, individual test methods, and other specific testing requirements for the different pollutants.(b) Make sure that stack tests for all the pollutants consist of at least three test runs, as specified in 40 Code of Federal Regulations (CFR) §60.8. Use the average of the pollutant emission concentrations from the three test runs to determine compliance with the applicable emission limits in Tables 2 and 4 in §113.2174 of this title.(c) Obtain an oxygen (or carbon dioxide) measurement at the same time as your pollutant measurements to determine diluent gas levels, as specified in §113.2128 of this title (relating to What continuous emission monitoring systems must I install for gaseous pollutants?).(d) Use the equations in §113.2171(a) of this title (relating to What equations must I use?) to calculate emission levels at 7 percent oxygen (or an equivalent carbon dioxide basis), the percent reduction in potential hydrogen chloride emissions, and the reduction efficiency for mercury emissions. See the individual test methods in Table 6 in §113.2174 of this title for other required equations.(e) You can apply to the executive director for approval under 40 CFR §60.8(b) to use a reference method with minor changes in methodology, use an equivalent method, use an alternative method the results of which the executive director has determined are adequate for demonstrating compliance, waive the requirement for a performance test because you have demonstrated by other means that you are in compliance, or use a shorter sampling time or smaller sampling volume.</content><note type="source"><p>Source Note: The provisions of this §113.2142 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2143"><num value="113.2143">§113.2143</num><heading>May I conduct stack testing less often?</heading><content>(a) You may test less often if you own or operate a Class II municipal waste combustion unit and if all stack tests for a given pollutant over 3 consecutive years show you comply with the emission limit. In that case, you are not required to conduct a stack test for that pollutant for the next 2 years. However, you must conduct another stack test within 36 months of the anniversary date of the third consecutive stack test that shows you comply with the emission limit. Thereafter, you must perform stack tests every 3rd year but no later than 36 months following the previous stack tests. If a stack test shows noncompliance with an emission limit, you must conduct annual stack tests for that pollutant until all stack tests over 3 consecutive years show compliance with the emission limit for that pollutant. The provision applies to all pollutants subject to stack testing requirements: dioxins/furans, cadmium, lead, mercury, particulate matter, opacity, hydrogen chloride, and fugitive ash.(b) You can test less often for dioxins/furans emissions if you own or operate a municipal waste combustion plant that meets two conditions. First, you have multiple municipal waste combustion units onsite that are subject to this division. Second, all those municipal waste combustion units have demonstrated levels of dioxins/furans emissions less than or equal to 15 nanograms per dry standard cubic meter (total mass) for Class I units, or 30 nanograms per dry standard cubic meter (total mass) for Class II units, for 2 consecutive years. In that case, you may choose to conduct annual stack tests on only one municipal waste combustion unit per year at your plant. The provision only applies to stack testing for dioxins/furans emissions.(1) Conduct the stack test no more than 13 months following a stack test on any municipal waste combustion unit subject to this division at your plant. Each year, test a different municipal waste combustion unit subject to this division and test all municipal waste combustion units subject to this division in a sequence that you determine. Once you determine a testing sequence, it must not be changed without approval by the executive director.(2) If each annual stack test shows levels of dioxins/furans emissions less than or equal to 15 nanograms per dry standard cubic meter (total mass) for Class I units, or 30 nanograms per dry standard cubic meter (total mass) for Class II units, you may continue stack tests on only one municipal waste combustion unit subject to this division per year.(3) If any annual stack test indicates levels of dioxins/furans emissions greater than 15 nanograms per dry standard cubic meter (total mass) for Class I units, or 30 nanograms per dry standard cubic meter (total mass) for Class II units, conduct subsequent annual stack tests on all municipal waste combustion units subject to this division at your plant. You may return to testing one municipal waste combustion unit subject to this division per year if you can demonstrate dioxins/furans emissions levels less than or equal to 15 nanograms per dry standard cubic meter (total mass) for Class I units, or 30 nanograms per dry standard cubic meter (total mass) for Class II units, for all municipal waste combustion units at your plant subject to this division for 2 consecutive years.</content><note type="source"><p>Source Note: The provisions of this §113.2143 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2144"><num value="113.2144">§113.2144</num><heading>May I deviate from the 13-month testing schedule if unforeseen circumstances arise?</heading><content>You may not deviate from the 13-month testing schedules specified in §113.2141(b) and §113.2143(b)(1) of this title (relating to What schedule must I follow for the stack testing? and May I conduct stack testing less often?) unless you apply to the executive director for an alternative schedule, and the executive director approves your request for alternate scheduling prior to the date on which you would otherwise have been required to conduct the next stack test.</content><note type="source"><p>Source Note: The provisions of this §113.2144 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2145"><num value="113.2145">§113.2145</num><heading>Must I meet other requirements for continuous monitoring?</heading><content>You must also monitor three operating parameters:(1) Load level of each municipal waste combustion unit.(2) Temperature of flue gases at the inlet of your particulate matter air pollution control device.(3) Carbon feed rate if activated carbon is used to control dioxins/furans or mercury emissions.</content><note type="source"><p>Source Note: The provisions of this §113.2145 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2146"><num value="113.2146">§113.2146</num><heading>How do I monitor the load of my municipal waste combustion unit?</heading><content>(a) If your municipal waste combustion unit generates steam, you must install, calibrate, maintain, and operate a steam flowmeter or a feed water flowmeter and meet five requirements:(1) Continuously measure and record the measurements of steam (or feed water) in kilograms (or pounds) per hour.(2) Calculate your steam (or feed water) flow in 4-hour block averages.(3) Calculate the steam (or feed water) flow rate using the method in "American Society of Mechanical Engineers Power Test Codes: Test Code for Steam Generating Units, Power Test Code 4.1 - 1964 (R1991)," section 4 (incorporated by reference in 40 Code of Federal Regulations (CFR) §60.17(h)(2)).(4) Design, construct, install, calibrate, and use nozzles or orifices for flow rate measurements, using the recommendations in "American Society of Mechanical Engineers Interim Supplement 19.5 on Instruments and Apparatus: Application, Part II of Fluid Meters," 6th Edition (1971), chapter 4 (incorporated by reference in 40 CFR §60.17(h)(3)).(5) Before each dioxins/furans stack test, or at least once a year, calibrate all signal conversion elements associated with steam (or feed water) flow measurements according to the manufacturer instructions.(b) If your municipal waste combustion units do not generate steam, or, if your municipal waste combustion units have shared steam systems and steam load cannot be estimated per unit, you must determine, to the satisfaction of the executive director, one or more operating parameters that can be used to continuously estimate load level (for example, the feed rate of municipal solid waste or refuse-derived fuel). You must continuously monitor the selected parameters.</content><note type="source"><p>Source Note: The provisions of this §113.2146 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2147"><num value="113.2147">§113.2147</num><heading>How do I monitor the temperature of flue gases at the inlet of my particulate matter control device?</heading><content>You must install, calibrate, maintain, and operate a device to continuously measure the temperature of the flue gas stream at the inlet of each particulate matter control device.</content><note type="source"><p>Source Note: The provisions of this §113.2147 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2148"><num value="113.2148">§113.2148</num><heading>How do I monitor the injection rate of activated carbon?</heading><content>If your municipal waste combustion unit uses activated carbon to control dioxins/furans or mercury emissions, you must meet three requirements:(1) Select a carbon injection system operating parameter that can be used to calculate carbon feed rate (for example, screw feeder speed).(2) During each dioxins/furans and mercury stack test, determine the average carbon feed rate in kilograms (or pounds) per hour. Also, determine the average operating parameter level that correlates to the carbon feed rate. Establish a relationship between the operating parameter and the carbon feed rate in order to calculate the carbon feed rate based on the operating parameter level.(3) Continuously monitor the selected operating parameter during all periods when the municipal waste combustion unit is operating and combusting waste and calculate the 8-hour block average carbon feed rate in kilograms (or pounds) per hour, based on the selected operating parameter. When calculating the 8-hour block average, do two things:(A) Exclude hours when the municipal waste combustion unit is not operating.(B) Include hours when the municipal waste combustion unit is operating but the carbon feed system is not working correctly.</content><note type="source"><p>Source Note: The provisions of this §113.2148 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2149"><num value="113.2149">§113.2149</num><heading>What is the minimum amount of monitoring data I must collect with my continuous parameter monitoring systems and is the data collection requirement enforceable?</heading><content>(a) Where continuous parameter monitoring systems are used, obtain 1-hour arithmetic averages for three parameters:(1) Load level of the municipal waste combustion unit.(2) Temperature of the flue gases at the inlet of your particulate matter control device.(3) Carbon feed rate if activated carbon is used to control dioxins/furans or mercury emissions.(b) Obtain at least two data points per hour in order to calculate a valid 1-hour arithmetic average.(c) Obtain valid 1-hour averages for at least 75 percent of the operating hours per day for 90 percent of the operating days per calendar quarter. An operating day is any day the unit combusts any municipal solid waste or refuse-derived fuel.(d) If you do not obtain the minimum data required in subsections (a) through (c) of this section, you are in violation of the data collection requirement, and you must notify the executive director according to §113.2161(5) of this title (relating to What must I include in my annual report?).</content><note type="source"><p>Source Note: The provisions of this §113.2149 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2150"><num value="113.2150">§113.2150</num><heading>What records must I keep?</heading><content>You must keep four types of records:(1) Operator training and certification.(2) Stack tests.(3) Continuously monitored pollutants and parameters.(4) Carbon feed rate.</content><note type="source"><p>Source Note: The provisions of this §113.2150 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2151"><num value="113.2151">§113.2151</num><heading>Where must I keep my records and for how long?</heading><content>(a) Keep all records onsite in paper copy or electronic format unless the executive director approves another format.(b) Keep all records on each municipal waste combustion unit for at least 5 years.(c) Make all records available for submittal to the executive director, or for onsite review by an inspector.</content><note type="source"><p>Source Note: The provisions of this §113.2151 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2152"><num value="113.2152">§113.2152</num><heading>What records must I keep for operator training and certification?</heading><content>You must keep records of six items:(1) Records of provisional certifications. Include three items:(A) For your municipal waste combustion plant, names of the chief facility operator, shift supervisors, and control room operators who are provisionally certified by the American Society of Mechanical Engineers or an equivalent state-approved certification program.(B) Dates of the initial provisional certifications.(C) Documentation showing current provisional certifications.(2) Records of full certifications. Include three items:(A) For your municipal waste combustion plant, names of the chief facility operator, shift supervisors, and control room operators who are fully certified by the American Society of Mechanical Engineers or an equivalent state-approved certification program.(B) Dates of initial and renewal full certifications.(C) Documentation showing current full certifications.(3) Records showing completion of the operator training course. Include three items:(A) For your municipal waste combustion plant, names of the chief facility operator, shift supervisors, and control room operators who have completed the United States Environmental Protection Agency or state municipal waste combustion operator training course.(B) Dates of completion of the operator training course.(C) Documentation showing completion of operator training course.(4) Records of reviews for plant-specific operating manuals. Include three items:(A) Names of persons who have reviewed the operating manual.(B) Date of the initial review.(C) Dates of subsequent annual reviews.(5) Records of when a certified operator is temporarily offsite. Include two main items:(A) If the certified chief facility operator and certified shift supervisor are offsite for more than 12 hours, but for 2 weeks or less, and no other certified operator is onsite, record the dates that the certified chief facility operator and certified shift supervisor were offsite.(B) When all certified chief facility operators and certified shift supervisors are offsite for more than 2 weeks and no other certified operator is onsite, keep records of four items:(i) Your notice that all certified persons are offsite.(ii) The conditions that cause those people to be offsite.(iii) The corrective actions you are taking to ensure a certified chief facility operator or certified shift supervisor is onsite.(iv) Copies of the written reports submitted every 4 weeks that summarize the actions taken to ensure that a certified chief facility operator or certified shift supervisor will be onsite.(6) Records of calendar dates. Include the calendar date on each record.</content><note type="source"><p>Source Note: The provisions of this §113.2152 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2153"><num value="113.2153">§113.2153</num><heading>What records must I keep for stack tests?</heading><content>For stack tests required under §113.2139 of this title (relating to What types of stack tests must I conduct?), you must keep records of four items:(1) The results of the stack tests for eight pollutants or parameters recorded in the appropriate units of measure specified in Table 2 or 4 in §113.2174 of this title (relating to Tables Relating to Division 3):(A) Dioxins/furans.(B) Cadmium.(C) Lead.(D) Mercury.(E) Opacity.(F) Particulate matter.(G) Hydrogen chloride.(H) Fugitive ash.(2) Test reports including supporting calculations that document the results of all stack tests.(3) The maximum demonstrated load of your municipal waste combustion units and maximum temperature at the inlet of your particulate matter control device during all stack tests for dioxins/furans emissions.(4) The calendar date of each record.</content><note type="source"><p>Source Note: The provisions of this §113.2153 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2154"><num value="113.2154">§113.2154</num><heading>What records must I keep for continuously monitored pollutants or parameters?</heading><content>You must keep records of eight items.(1) Records of monitoring data. Document six parameters measured using continuous monitoring systems:(A) All 6-minute average levels of opacity.(B) All 1-hour average concentrations of sulfur dioxide emissions.(C) For Class I municipal waste combustion units only, all 1-hour average concentrations of nitrogen oxides emissions.(D) All 1-hour average concentrations of carbon monoxide emissions.(E) All 1-hour average load levels of your municipal waste combustion unit.(F) All 1-hour average flue gas temperatures at the inlet of the particulate matter control device.(2) Records of average concentrations and percent reductions. Document five parameters:(A) All 24-hour daily block geometric average concentrations of sulfur dioxide emissions or average percent reductions of sulfur dioxide emissions.(B) For Class I municipal waste combustion units only, all 24-hour daily arithmetic average concentrations of nitrogen oxides emissions.(C) All 4-hour block or 24-hour daily block arithmetic average concentrations of carbon monoxide emissions.(D) All 4-hour block arithmetic average load levels of your municipal waste combustion unit.(E) All 4-hour block arithmetic average flue gas temperatures at the inlet of the particulate matter control device.(3) Records of exceedances. Document three items:(A) Calendar dates whenever any of the five pollutant or parameter levels recorded in paragraph (2) of this section or the opacity level recorded in paragraph (1)(A) of this section did not meet the emission limits or operating levels specified in this division.(B) Reasons you exceeded the applicable emission limits or operating levels.(C) Corrective actions you took, or are taking, to meet the emission limits or operating levels.(4) Records of minimum data. Document three items:(A) Calendar dates for which you did not collect the minimum amount of data required under §113.2134 and §113.2149 of this title (relating to What is the minimum amount of monitoring data I must collect with my continuous emission monitoring systems and is the data collection requirement enforceable? and What is the minimum amount of data I must collect with my continuous parameter monitoring systems and is the data collection requirement enforceable?). Record those dates for five types of pollutants and parameters:(i) Sulfur dioxide emissions.(ii) For Class I municipal waste combustion units only, nitrogen oxides emissions.(iii) Carbon monoxide emissions.(iv) Load levels of your municipal waste combustion unit.(v) Temperatures of the flue gases at the inlet of the particulate matter control device.(B) Reasons you did not collect the minimum data.(C) Corrective actions you took or are taking to obtain the required amount of data.(5) Records of exclusions. Document each time you have excluded data from your calculation of averages for any of the following five pollutants or parameters and the reasons the data were excluded:(A) Sulfur dioxide emissions.(B) For Class I municipal waste combustion units only, nitrogen oxides emissions.(C) Carbon monoxide emissions.(D) Load levels of your municipal waste combustion unit.(E) Temperatures of the flue gases at the inlet of the particulate matter control device.(6) Records of drift and accuracy. Document the results of your daily drift tests and quarterly accuracy determinations according to Procedure 1 of 40 Code of Federal Regulations Part 60, Appendix F. Keep those records for the sulfur dioxide, nitrogen oxides (Class I municipal waste combustion units only), and carbon monoxide continuous emissions monitoring systems.(7) Records of the relationship between oxygen and carbon dioxide. If you choose to monitor carbon dioxide instead of oxygen as a diluent gas, document the relationship between oxygen and carbon dioxide, as specified in §113.2133 of this title (relating to What must I do if I choose to monitor carbon dioxide instead of oxygen as a diluent gas?).(8) Records of calendar dates. Include the calendar date on each record.</content><note type="source"><p>Source Note: The provisions of this §113.2154 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2155"><num value="113.2155">§113.2155</num><heading>What records must I keep for municipal waste combustion units that use activated carbon?</heading><content>For municipal waste combustion units that use activated carbon to control dioxins/furans or mercury emissions, you must keep records of five items:(1) Records of average carbon feed rate. Document five items:(A) Average carbon feed rate in kilograms (or pounds) per hour during all stack tests for dioxins/furans and mercury emissions. Include supporting calculations in the records.(B) For the operating parameter chosen to monitor carbon feed rate, average operating level during all stack tests for dioxins/furans and mercury emissions. Include supporting data that document the relationship between the operating parameter and the carbon feed rate.(C) All 8-hour block average carbon feed rates in kilograms (or pounds) per hour calculated from the monitored operating parameter.(D) Total carbon purchased and delivered to the municipal waste combustion plant for each calendar quarter. If you choose to evaluate total carbon purchased and delivered on a municipal waste combustion unit basis, record the total carbon purchased and delivered for each individual municipal waste combustion unit at your plant. Include supporting documentation.(E) Required quarterly usage of carbon for the municipal waste combustion plant, calculated using equation 4 or 5 in §113.2171(f) of this title (relating to What equations must I use?). If you choose to evaluate required quarterly usage for carbon on a municipal waste combustion unit basis, record the required quarterly usage for each municipal waste combustion unit at your plant. Include supporting calculations.(2) Records of low carbon feed rates. Document three items:(A) The calendar dates when the average carbon feed rate over an 8-hour block was less than the average carbon feed rates determined during the most recent stack test for dioxins/furans or mercury emissions (whichever has a higher feed rate).(B) Reasons for the low carbon feed rates.(C) Corrective actions you took or are taking to meet the 8-hour average carbon feed rate requirement.(3) Records of minimum carbon feed rate data. Document three items:(A) Calendar dates for which you did not collect the minimum amount of carbon feed rate data required under §113.2149 of this title (relating to What is the minimum amount of monitoring data I must collect with my continuous parameter monitoring systems and is the data collection requirement enforceable?).(B) Reasons you did not collect the minimum data.(C) Corrective actions you took or are taking to get the required amount of data.(4) Records of exclusions. Document each time you have excluded data from your calculation of average carbon feed rates and the reasons the data were excluded.(5) Records of calendar dates. Include the calendar date on each record.</content><note type="source"><p>Source Note: The provisions of this §113.2155 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2156"><num value="113.2156">§113.2156</num><heading>What reports must I submit and in what form?</heading><content>(a) Submit an initial report and annual reports, plus semiannual reports for any emission or parameter level that does not meet the limits specified in this division.(b) Submit all reports on paper, postmarked on or before the submittal dates in §§113.2158, 113.2160, and 113.2163 of this title (relating to When must I submit the initial report?, When must I submit the annual report?, and If a semiannual report is required, when must I submit it?). If the executive director agrees, you may submit electronic reports, as specified in Chapter 19 of this title (relating to Electronic Reporting).(c) Keep a copy of all reports required by §§113.2159, 113.2161, and 113.2164 of this title (relating to What must I include in my initial report?, What must I include in my annual report?, and What must I include in the semiannual out-of-compliance reports?) onsite for 5 years.</content><note type="source"><p>Source Note: The provisions of this §113.2156 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2157"><num value="113.2157">§113.2157</num><heading>What are the appropriate units of measurement for reporting my data?</heading><content>See Tables 2, 3, 4, and 5 in §113.2174 of this title (relating to Tables Relating to Division 3) for appropriate units of measurement.</content><note type="source"><p>Source Note: The provisions of this §113.2157 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2158"><num value="113.2158">§113.2158</num><heading>When must I submit the initial report?</heading><content>As specified in 40 Code of Federal Regulations §60.7(c), submit your initial report by 180 days after your final compliance date.</content><note type="source"><p>Source Note: The provisions of this §113.2158 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2159"><num value="113.2159">§113.2159</num><heading>What must I include in my initial report?</heading><content>You must include seven items:(1) The emission levels measured on the date of the initial evaluation of your continuous emission monitoring systems for all of the following five pollutants or parameters as recorded in accordance with §113.2154(2) of this title (relating to What records must I keep for continuously monitored pollutants or parameters?).(A) The 24-hour daily geometric average concentration of sulfur dioxide emissions or the 24-hour daily geometric percent reduction of sulfur dioxide emissions.(B) For Class I municipal waste combustion units only, the 24-hour daily arithmetic average concentration of nitrogen oxides emissions.(C) The 4-hour block or 24-hour daily arithmetic average concentration of carbon monoxide emissions.(D) The 4-hour block arithmetic average load level of your municipal waste combustion unit.(E) The 4-hour block arithmetic average flue gas temperature at the inlet of the particulate matter control device.(2) The results of the initial stack tests for eight pollutants or parameters (use appropriate units as specified in Table 2 or 4 in §113.2174 of this title (relating to Tables Relating to Division 3)):(A) Dioxins/furans.(B) Cadmium.(C) Lead.(D) Mercury.(E) Opacity.(F) Particulate matter.(G) Hydrogen chloride.(H) Fugitive ash.(3) The test report that documents the initial stack tests including supporting calculations.(4) The initial performance evaluation of your continuous emissions monitoring systems. Use the applicable performance specifications in 40 Code of Federal Regulations Part 60, Appendix B in conducting the evaluation.(5) The maximum demonstrated load of your municipal waste combustion unit and the maximum demonstrated temperature of the flue gases at the inlet of the particulate matter control device. Use values established during your initial stack test for dioxins/furans emissions and include supporting calculations.(6) If your municipal waste combustion unit uses activated carbon to control dioxins/furans or mercury emissions, the average carbon feed rates that you recorded during the initial stack tests for dioxins/furans and mercury emissions. Include supporting calculations as specified in §113.2155(1)(A) and (B) of this title (relating to What records must I keep for municipal waste combustion units that use activated carbon?).(7) If you choose to monitor carbon dioxide instead of oxygen as a diluent gas, documentation of the relationship between oxygen and carbon dioxide, as specified in §113.2133 of this title (relating to What must I do if I choose to monitor carbon dioxide instead of oxygen as a diluent gas?).</content><note type="source"><p>Source Note: The provisions of this §113.2159 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2160"><num value="113.2160">§113.2160</num><heading>When must I submit the annual report?</heading><content>Submit the annual report no later than February 1 of each year that follows the calendar year in which you collected the data. If you have an operating permit for any unit under Title V of the Federal Clean Air Act, the permit may require you to submit semiannual reports. Title 40 Code of Federal Regulations Part 70 contains program requirements for permits.</content><note type="source"><p>Source Note: The provisions of this §113.2160 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2161"><num value="113.2161">§113.2161</num><heading>What must I include in my annual report?</heading><content>Summarize data collected for all pollutants and parameters regulated under this division. Your summary must include twelve items:(1) The results of the annual stack test, using appropriate units, for eight pollutants, as recorded under §113.2153(1) of this title (relating to What records must I keep for stack tests?):(A) Dioxins/furans.(B) Cadmium.(C) Lead.(D) Mercury.(E) Opacity.(F) Particulate matter.(G) Hydrogen chloride.(H) Fugitive ash.(2) A list of the highest average levels recorded, in the appropriate units. List those values for five pollutants or parameters:(A) Sulfur dioxide emissions.(B) For Class I municipal waste combustion units only, nitrogen oxides emissions.(C) Carbon monoxide emissions.(D) Load level of the municipal waste combustion unit.(E) Temperature of the flue gases at the inlet of the particulate matter air pollution control device (4-hour block average).(3) The highest 6-minute opacity level measured. Base the value on all 6-minute average opacity levels recorded by your continuous opacity monitoring system (§113.2154(1)(A) of this title (relating to What records must I keep for continuously monitored pollutants or parameters?)).(4) For municipal waste combustion units that use activated carbon for controlling dioxins/furans or mercury emissions, include four records:(A) The average carbon feed rates recorded during the most recent dioxins/furans and mercury stack tests.(B) The lowest 8-hour block average carbon feed rate recorded during the year.(C) The total carbon purchased and delivered to the municipal waste combustion plant for each calendar quarter. If you choose to evaluate total carbon purchased and delivered on a municipal waste combustion unit basis, record the total carbon purchased and delivered for each individual municipal waste combustion unit at your plant.(D) The required quarterly carbon usage of your municipal waste combustion plant calculated using equation 4 or 5 in §113.2171(f) of this title (relating to What equations must I use?). If you choose to evaluate required quarterly usage for carbon on a municipal waste combustion unit basis, record the required quarterly usage for each municipal waste combustion unit at your plant.(5) The total number of days that you did not obtain the minimum number of hours of data for six pollutants or parameters. Include the reasons you did not obtain the data and corrective actions that you have taken to obtain the data in the future. Include data on:(A) Sulfur dioxide emissions.(B) For Class I municipal waste combustion units only, nitrogen oxides emissions.(C) Carbon monoxide emissions.(D) Load level of the municipal waste combustion unit.(E) Temperature of the flue gases at the inlet of the particulate matter air pollution control device.(F) Carbon feed rate.(6) The number of hours you have excluded data from the calculation of average levels (include the reasons for excluding it). Include data for six pollutants or parameters:(A) Sulfur dioxide emissions.(B) For Class I municipal waste combustion units only, nitrogen oxides emissions.(C) Carbon monoxide emissions.(D) Load level of the municipal waste combustion unit.(E) Temperature of the flue gases at the inlet of the particulate matter air pollution control device.(F) Carbon feed rate.(7) A notice of your intent to begin a reduced stack testing schedule for dioxins/furans emissions during the following calendar year if you are eligible for alternative scheduling (§113.2143(a) or (b) of this title (relating to May I conduct stack testing less often?)).(8) A notice of your intent to begin a reduced stack testing schedule for other pollutants during the following calendar year if you are eligible for alternative scheduling (§113.2143(a) of this title).(9) A summary of any emission or parameter level that did not meet the limits specified in this division.(10) A summary of the data in paragraphs (1) through (4) of this section from the year preceding the reporting year which gives the executive director a summary of the performance of the municipal waste combustion unit over a 2-year period.(11) If you choose to monitor carbon dioxide instead of oxygen as a diluent gas, documentation of the relationship between oxygen and carbon dioxide, as specified in §113.2133 of this title (relating to What must I do if I choose to monitor carbon dioxide instead of oxygen as a diluent gas?).(12) Documentation of periods when all certified chief facility operators and certified shift supervisors are offsite for more than 12 hours.</content><note type="source"><p>Source Note: The provisions of this §113.2161 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2162"><num value="113.2162">§113.2162</num><heading>What must I do if I am out of compliance with the requirements of this division?</heading><content>You must submit a semiannual report on any recorded emission or parameter level that does not meet the requirements specified in this division.</content><note type="source"><p>Source Note: The provisions of this §113.2162 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2163"><num value="113.2163">§113.2163</num><heading>If a semiannual report is required, when must I submit it?</heading><content>(a) For data collected during the first half of a calendar year, submit your semiannual report by August 1 of that year.(b) For data you collected during the second half of the calendar year, submit your semiannual report by February 1 of the following year.</content><note type="source"><p>Source Note: The provisions of this §113.2163 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2164"><num value="113.2164">§113.2164</num><heading>What must I include in the semiannual out-of-compliance reports?</heading><content>You must include three items in the semiannual report:(1) For any of the following six pollutants or parameters that exceeded the limits specified in this division, include the calendar date they exceeded the limits, the averaged and recorded data for that date, the reasons for exceeding the limits, and your corrective actions:(A) Concentration or percent reduction of sulfur dioxide emissions.(B) For Class I municipal waste combustion units only, concentration of nitrogen oxides emissions.(C) Concentration of carbon monoxide emissions.(D) Load level of your municipal waste combustion unit.(E) Temperature of the flue gases at the inlet of your particulate matter air pollution control device.(F) Average 6-minute opacity level. The data obtained from your continuous opacity monitoring system are not used to determine compliance with the limit on opacity emissions.(2) If the results of your annual stack tests (as recorded in §113.2153(1) of this title (relating to What records must I keep for stack tests?)) show emissions above the limits specified in Table 2 or 4 in §113.2174 of this title (relating to Tables Relating to Division 3) as applicable for dioxins/furans, cadmium, lead, mercury, particulate matter, opacity, hydrogen chloride, and fugitive ash, include a copy of the test report that documents the emission levels and your corrective actions.(3) For municipal waste combustion units that apply activated carbon to control dioxins/furans or mercury emissions, include two items:(A) Documentation of all dates when the 8-hour block average carbon feed rate (calculated from the carbon injection system operating parameter) is less than the highest carbon feed rate established during the most recent mercury and dioxins/furans stack test (as specified in §113.2155(1)(A) of this title (relating to What records must I keep for municipal waste combustion units that use activated carbon?)). Include four items:(i) Eight-hour average carbon feed rate.(ii) Reasons for occurrences of low carbon feed rates.(iii) The corrective actions you have taken to meet the carbon feed rate requirement.(iv) The calendar date.(B) Documentation of each quarter when total carbon purchased and delivered to the municipal waste combustion plant is less than the total required quarterly usage of carbon. If you choose to evaluate total carbon purchased and delivered on a municipal waste combustion unit basis, record the total carbon purchased and delivered for each individual municipal waste combustion unit at your plant. Include five items:(i) Amount of carbon purchased and delivered to the plant.(ii) Required quarterly usage of carbon.(iii) Reasons for not meeting the required quarterly usage of carbon.(iv) The corrective actions you have taken to meet the required quarterly usage of carbon.(v) The calendar date.</content><note type="source"><p>Source Note: The provisions of this §113.2164 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2165"><num value="113.2165">§113.2165</num><heading>Can reporting dates be changed?</heading><content>(a) If the executive director agrees, you may change the semiannual or annual reporting dates.(b) See 40 Code of Federal Regulations §60.19(c) for procedures to seek approval to change your reporting date.</content><note type="source"><p>Source Note: The provisions of this §113.2165 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2166"><num value="113.2166">§113.2166</num><heading>What is an air curtain incinerator?</heading><content>An air curtain incinerator operates by forcefully projecting a curtain of air across an open chamber or open pit in which combustion occurs. Incinerators of that type can be constructed above or below ground and with or without refractory walls and floor.</content><note type="source"><p>Source Note: The provisions of this §113.2166 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2167"><num value="113.2167">§113.2167</num><heading>What is yard waste?</heading><content>Yard waste is grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs. They come from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands. Yard waste does not include two items:(1) Construction, renovation, and demolition wastes that are exempt from the definition of "Municipal solid waste" in §113.2100 of this title (relating to Definitions).(2) Clean wood that is exempt from the definition of "Municipal solid waste" in §113.2100 of this title.</content><note type="source"><p>Source Note: The provisions of this §113.2167 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2168"><num value="113.2168">§113.2168</num><heading>What are the emission limits for air curtain incinerators that burn 100 percent yard waste?</heading><content>If your air curtain incinerator combusts 100 percent yard waste, you must only meet the emission limits in this section.(1) By 180 days after your final compliance date, you must meet two limits:(A) The opacity limit is 10 percent (6-minute average) for air curtain incinerators that can combust at least 35 tons per day of municipal solid waste and no more than 250 tons per day of municipal solid waste.(B) The opacity limit is 35 percent (6-minute average) during the startup period that is within the first 30 minutes of operation.(2) Except during malfunctions, the requirements of this division apply at all times. Each malfunction must not exceed 3 hours.</content><note type="source"><p>Source Note: The provisions of this §113.2168 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2169"><num value="113.2169">§113.2169</num><heading>How must I monitor opacity for air curtain incinerators that burn 100 percent yard waste?</heading><content>(a) Use United States Environmental Protection Agency Reference Method 9 in 40 Code of Federal Regulations (CFR) Part 60, Appendix A to determine compliance with the opacity limit.(b) Conduct an initial test for opacity as specified in 40 CFR §60.8.(c) After the initial test for opacity, conduct annual tests no more than 13 calendar months following the date of your previous test.</content><note type="source"><p>Source Note: The provisions of this §113.2169 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2170"><num value="113.2170">§113.2170</num><heading>What are the recordkeeping and reporting requirements for air curtain incinerators that burn 100 percent yard waste?</heading><content>(a) Provide a notice of construction that includes four items:(1) Your intent to construct the air curtain incinerator.(2) Your planned initial startup date.(3) Types of fuels you plan to combust in your air curtain incinerator.(4) The capacity of your incinerator, including supporting capacity calculations, as specified in §113.2171(d) and (e) of this title (relating to What equations must I use?).(b) Keep records of results of all opacity tests onsite in either paper copy or electronic format unless the executive director approves another format.(c) Keep all records for each incinerator for at least 5 years.(d) Make all records available for submittal to the executive director or for onsite review by an inspector.(e) Submit the results (each 6-minute average) of the opacity tests by February 1 of the year following the year of the opacity emission test.(f) Submit reports as a paper copy on or before the applicable submittal date. If the executive director agrees, you may submit reports on electronic media.(g) If the executive director agrees, you may change the annual reporting dates (see 40 Code of Federal Regulations §60.19(c)).(h) Keep a copy of all reports onsite for a period of 5 years.</content><note type="source"><p>Source Note: The provisions of this §113.2170 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2171"><num value="113.2171">§113.2171</num><heading>What equations must I use?</heading><content>(a) Concentration correction to 7 percent oxygen. Correct any pollutant concentration to 7 percent oxygen using equation 1 of this section: Attached Graphic(b) Percent reduction in potential mercury emissions. Calculate the percent reduction in potential mercury emissions (%PHg ) using equation 2 of this section: Attached Graphic(c) Percent reduction in potential hydrogen chloride emissions. Calculate the percent reduction in potential hydrogen chloride emissions (%PHC1 ) using equation 3 of this section: Attached Graphic(d) Capacity of a municipal waste combustion unit. For a municipal waste combustion unit that can operate continuously for 24-hour periods, calculate the municipal waste combustion unit capacity based on 24 hours of operation at the maximum charge rate. To determine the maximum charge rate, use one of two methods: (1) For municipal waste combustion units with a design based on heat input capacity, calculate the maximum charging rate based on the maximum heat input capacity and one of two heating values: (A) If your municipal waste combustion unit combusts refuse-derived fuel, use a heating value of 12,800 kilojoules per kilogram (5,500 British thermal units per pound). (B) If your municipal waste combustion unit combusts municipal solid waste, use a heating value of 10,500 kilojoules per kilogram (4,500 British thermal units per pound). (2) For municipal waste combustion units with a design not based on heat input capacity, use the maximum designed charging rate. (e) Capacity of a batch municipal waste combustion unit. Calculate the capacity of a batch municipal waste combustion unit as the maximum design amount of municipal solid waste it can charge per batch multiplied by the maximum number of batches it can process in 24 hours. Calculate the maximum number of batches by dividing 24 by the number of hours needed to process one batch. Retain fractional batches in the calculation. For example, if one batch requires 16 hours, the municipal waste combustion unit can combust 24/16, or 1.5 batches, in 24 hours. (f) Quarterly carbon usage. If you use activated carbon to comply with the dioxins/furans or mercury limits, calculate the required quarterly usage of carbon using equation 4 of this section for plant basis or equation 5 of this section for unit basis: (1) Plant basis. Attached Graphic(2) Unit basis. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §113.2171 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2172"><num value="113.2172">§113.2172</num><heading>Does this subpart require me to obtain an operating permit under Title V of the Federal Clean Air Act?</heading><content>Yes. If you are subject to this division on the effective date of state plan approval or any time thereafter, you are required to apply for and obtain a Title V operating permit.</content><note type="source"><p>Source Note: The provisions of this §113.2172 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2173"><num value="113.2173">§113.2173</num><heading>When must I submit a Title V permit application for my existing small municipal waste combustion unit?</heading><content>(a) You must submit a complete Title V permit application within 12 months of when your source first becomes subject to a Title V permitting program. See 40 Code of Federal Regulations (CFR) §70.3(a) and (b) and §70.5(a)(1). As provided in the Federal Clean Air Act, §503(c), permitting authorities may establish permit application deadlines earlier than the 12-month deadline.(b) If your existing small municipal waste combustion unit is not subject to an earlier permit application deadline, a complete Title V permit application must be submitted not later than the date 36 months after promulgation of 40 CFR Part 60, Subpart BBBB (December 6, 2003), or by the effective date of the applicable state, tribal, or federal operating permits program, whichever is later. For any existing small municipal waste combustion unit not subject to an earlier application deadline, this final application deadline applies regardless of when the federal plan is effective, or when the relevant state or tribal Federal Clean Air Act, §111(d)/129 plan is approved by the United States Environmental Protection Agency and becomes effective. See the Federal Clean Air Act, §§129(e), 503(c), 503(d), and 502(a).(c) A "complete" Title V permit application is one that has been determined or deemed complete by the relevant permitting authority under the Federal Clean Air Act, §503(d) and 40 CFR §70.5(a)(2). You must submit a complete permit application by the relevant application deadline in order to operate after this date in compliance with federal law. See the Federal Clean Air Act, §503(d) and §502(a); 40 CFR §70.7(b).</content><note type="source"><p>Source Note: The provisions of this §113.2173 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2174"><num value="113.2174">§113.2174</num><heading>Tables Relating to Division 3</heading><content>(a) Table 1 of this subsection specifies the compliance schedules and increments of progress for Division 3 of this subchapter. Attached Graphic(b) Table 2 of this subsection specifies the Class I emission limits for existing small municipal waste combustion units for Division 3 of this subchapter. Attached Graphic(c) Table 3 of this subsection specifies the Class I nitrogen oxides emission limits for existing small municipal waste combustion units for Division 3 of this subchapter. Attached Graphic(d) Table 4 of this subsection specifies the Class II emission limits for existing small municipal waste combustion units for Division 3 of this subchapter. Attached Graphic(e) Table 5 of this subsection specifies the carbon monoxide emission limits for existing small municipal waste combustion units for Division 3 of this subchapter. Attached Graphic(f) Table 6 of this subsection specifies the requirements for validating continuous emission monitoring systems for Division 3 of this subchapter. Attached Graphic(g) Table 7 of this subsection specifies the requirements for continuous emission monitoring systems for Division 3 of this subchapter. Attached Graphic(h) Table 8 of this subsection specifies the requirements for stack tests for Division 3 of this subchapter. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §113.2174 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2200"><num value="113.2200">§113.2200</num><heading>Definitions</heading><content>Terms used but not defined in this division are defined in the Federal Clean Air Act and 40 Code of Federal Regulations Part 60, Subparts A and B.(1) Administrator--The administrator of the United States Environmental Protection Agency or his/her authorized representative or administrator of a state air pollution control agency.(2) Agricultural waste--Vegetative agricultural materials such as nut and grain hulls and chaff (e.g., almond, walnut, peanut, rice, and wheat), bagasse, orchard prunings, corn stalks, coffee bean hulls and grounds, and other vegetative waste materials generated as a result of agricultural operations.(3) Air curtain incinerator--An incinerator that operates by forcefully projecting a curtain of air across an open chamber or pit in which combustion occurs. Incinerators of this type can be constructed above or below ground and with or without refractory walls and floor. (Air curtain incinerators are not to be confused with conventional combustion devices with enclosed fireboxes and controlled air technology such as mass burn, modular, and fluidized bed combustors.)(4) Auxiliary fuel--Natural gas, liquified petroleum gas, fuel oil, or diesel fuel.(5) Bag leak detection system--An instrument that is capable of monitoring particulate matter loadings in the exhaust of a fabric filter (i.e., baghouse) in order to detect bag failures. A bag leak detection system includes, but is not limited to, an instrument that operates on triboelectric, light scattering, light transmittance, or other principle to monitor relative particulate matter loadings.(6) Calendar quarter--Three consecutive months (nonoverlapping) beginning on: January 1, April 1, July 1, or October 1.(7) Calendar year--365 consecutive days starting on January 1 and ending on December 31.(8) Chemotherapeutic waste--Waste material resulting from the production or use of antineoplastic agents used for the purpose of stopping or reversing the growth of malignant cells.(9) Clean lumber--Wood or wood products that have been cut or shaped and include wet, air-dried, and kiln-dried wood products. Clean lumber does not include wood products that have been painted, pigment-stained, or pressure-treated by compounds such as chromate copper arsenate, pentachlorophenol, and creosote.(10) Commercial and industrial solid waste incineration (CISWI) unit--Any combustion device that combusts commercial and industrial waste, as defined in this division. The boundaries of a CISWI unit are defined as, but not limited to, the commercial or industrial solid waste fuel feed system, grate system, flue gas system, and bottom ash. The CISWI unit does not include air pollution control equipment or the stack. The CISWI unit boundary starts at the commercial and industrial solid waste hopper (if applicable) and extends through two areas:(A) The combustion unit flue gas system, which ends immediately after the last combustion chamber.(B) The combustion unit bottom ash system, which ends at the truck loading station or similar equipment that transfers the ash to final disposal. It includes all ash handling systems connected to the bottom ash handling system.(11) Commercial and industrial waste--Solid waste combusted in an enclosed device using controlled flame combustion without energy recovery that is a distinct operating unit of any commercial or industrial facility (including field-erected, modular, and custom built incineration units operating with starved or excess air), or solid waste combusted in an air curtain incinerator without energy recovery that is a distinct operating unit of any commercial or industrial facility.(12) Contained gaseous material--Gases that are in a container when that container is combusted.(13) Cyclonic barrel burner--A combustion device for waste materials that is attached to a 55-gallon, open-head drum. The device consists of a lid, which fits onto and encloses the drum, and a blower that forces combustion air into the drum in a cyclonic manner to enhance the mixing of waste material and air.(14) Deviation--Any instance in which an affected source subject to this division, or an owner or operator of such a source:(A) Fails to meet any requirement or obligation established by this division, including but not limited to any emission limitation, operating limit, or operator qualification and accessibility requirements;(B) Fails to meet any term or condition that is adopted to implement an applicable requirement in this division and that is included in the operating permit for any affected source required to obtain such a permit; or(C) Fails to meet any emission limitation, operating limit, or operator qualification and accessibility requirement in this division during startup, shutdown, or malfunction, regardless of whether or not such failure is permitted by this division.(15) Dioxins/furans--Tetra-through octachlorinated dibenzo-p-dioxins and dibenzofurans.(16) Discard--For purposes of this division, only, burned in an incineration unit without energy recovery.(17) Drum reclamation unit--A unit that burns residues out of drums (e.g., 55-gallon drums) so that the drums can be reused.(18) Energy recovery--The process of recovering thermal energy from combustion for useful purposes such as steam generation or process heating.(19) Fabric filter--An add-on air pollution control device used to capture particulate matter by filtering gas streams through filter media, also known as a baghouse.(20) Low-level radioactive waste--Waste material which contains radioactive nuclides emitting primarily beta or gamma radiation, or both, in concentrations or quantities that exceed applicable federal or state standards for unrestricted release. Low-level radioactive waste is not high-level radioactive waste, spent nuclear fuel, or by-product material as defined by the Atomic Energy Act of 1954 (42 United States Code, §2014(e)(2)).(21) Malfunction--Any sudden, infrequent, and not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner. Failures that are caused, in part, by poor maintenance or careless operation are not malfunctions.(22) Modification or modified commercial and industrial solid waste incineration (CISWI) unit--A CISWI unit you have changed later than June 1, 2001, and that meets one of two criteria:(A) The cumulative cost of the changes over the life of the unit exceeds 50 percent of the original cost of building and installing the CISWI unit (not including the cost of land) updated to current costs (current dollars). To determine what systems are within the boundary of the CISWI unit used to calculate these costs, see the definition of CISWI unit.(B) Any physical change in the CISWI unit or change in the method of operating it that increases the amount of any air pollutant emitted for which the Federal Clean Air Act, §111 or §129 has established standards.(23) Part reclamation unit--A unit that burns coatings off parts (e.g., tools, equipment) so that the parts can be reconditioned and reused.(24) Particulate matter--Total particulate matter emitted from commercial and industrial solid waste incineration units as measured by Method 5 or Method 29 of 40 Code of Federal Regulations Part 60, Appendix A.(25) Pathological waste--Waste material consisting of only human or animal remains, anatomical parts, and/or tissue, the bags/containers used to collect and transport the waste material, and animal bedding (if applicable).(26) Rack reclamation unit--A unit that burns the coatings off racks used to hold small items for application of a coating. The unit burns the coating overspray off the rack so the rack can be reused.(27) Reconstruction--Rebuilding a commercial and industrial solid waste incineration (CISWI) unit and meeting two criteria:(A) The reconstruction begins on or after June 1, 2001.(B) The cumulative cost of the construction over the life of the incineration unit exceeds 50 percent of the original cost of building and installing the CISWI unit (not including land) updated to current costs (current dollars). To determine what systems are within the boundary of the CISWI unit used to calculate these costs, see the definition of CISWI unit.(28) Refuse-derived fuel--A type of municipal solid waste produced by processing municipal solid waste through shredding and size classification. This includes all classes of refuse-derived fuel including two fuels:(A) Low-density fluff refuse-derived fuel through densified refuse-derived fuel.(B) Pelletized refuse-derived fuel.(29) Shutdown--The period of time after all waste has been combusted in the primary chamber.(30) Solid waste--Any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under the Federal Water Pollution Control Act, §402, as amended (33 United States Code (USC), §1342), or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (42 USC, §2014). For purposes of this division, only, solid waste does not include the waste burned in the fifteen types of units described in 40 Code of Federal Regulations §60.2555.(31) Standard conditions--When referring to units of measure, a temperature of 68 degrees Fahrenheit (20 degrees Celsius) and a pressure of 1 atmosphere (101.3 kilopascals).(32) Startup period--The period of time between the activation of the system and the first charge to the unit.(33) Wet scrubber--An add-on air pollution control device that utilizes an aqueous or alkaline scrubbing liquor to collect particulate matter (including nonvaporous metals and condensed organics) and/or to absorb and neutralize acid gases.(34) Wood waste--Untreated wood and untreated wood products, including tree stumps (whole or chipped), trees, tree limbs (whole or chipped), bark, sawdust, chips, scraps, slabs, millings, and shavings. Wood waste does not include:(A) Grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands.(B) Construction, renovation, or demolition wastes.(C) Clean lumber.</content><note type="source"><p>Source Note: The provisions of this §113.2200 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2201"><num value="113.2201">§113.2201</num><heading>What are my requirements for meeting increments of progress and achieving final compliance?</heading><content>If you plan to achieve compliance more than 1 year following the effective date of state plan approval, you must meet the two increments of progress specified in paragraphs (1) and (2) of this section.(1) Submit a final control plan.(2) Achieve final compliance.</content><note type="source"><p>Source Note: The provisions of this §113.2201 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2202"><num value="113.2202">§113.2202</num><heading>When must I complete each increment of progress?</heading><content>Table 1 in §113.2261 of this title (relating to Tables Relating to Division 4) specifies compliance dates for each of the increments of progress.</content><note type="source"><p>Source Note: The provisions of this §113.2202 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2203"><num value="113.2203">§113.2203</num><heading>What must I include in the notifications of achievement of increments of progress?</heading><content>Your notification of achievement of increments of progress must include the three items specified in paragraphs (1) through (3) of this section.(1) Notification that the increment of progress has been achieved.(2) Any items required to be submitted with each increment of progress.(3) Signature of the owner or operator of the commercial and industrial solid waste incineration unit.</content><note type="source"><p>Source Note: The provisions of this §113.2203 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2204"><num value="113.2204">§113.2204</num><heading>When must I submit the notifications of achievement of increments of progress?</heading><content>Notifications for achieving increments of progress must be postmarked no later than 10 business days after the compliance date for the increment.</content><note type="source"><p>Source Note: The provisions of this §113.2204 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2205"><num value="113.2205">§113.2205</num><heading>What if I do not meet an increment of progress?</heading><content>If you fail to meet an increment of progress, you must submit a notification to the executive director postmarked within 10 business days after the date for that increment of progress in Table 1 in §113.2261 of this title (relating to Tables Relating to Division 4). You must inform the executive director that you did not meet the increment, and you must continue to submit reports each subsequent calendar month until the increment of progress is met.</content><note type="source"><p>Source Note: The provisions of this §113.2205 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2206"><num value="113.2206">§113.2206</num><heading>How do I comply with the increment of progress for submittal of a control plan?</heading><content>For your control plan increment of progress, you must satisfy the two requirements specified in paragraphs (1) and (2) of this section.(1) Submit the final control plan that includes the five items described in subparagraphs (A) through (E) of this paragraph.(A) A description of the devices for air pollution control and process changes that you will use to comply with the emission limitations and other requirements of this division.(B) The type(s) of waste to be burned.(C) The maximum design waste burning capacity.(D) The anticipated maximum charge rate.(E) If applicable, the petition for site-specific operating limits under §113.2222 of this title (relating to What if I do not use a wet scrubber to comply with the emission limitations?).(2) Maintain an onsite copy of the final control plan.</content><note type="source"><p>Source Note: The provisions of this §113.2206 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2207"><num value="113.2207">§113.2207</num><heading>How do I comply with the increment of progress for achieving final compliance?</heading><content>For the final compliance increment of progress, you must complete all process changes and retrofit construction of control devices, as specified in the final control plan, so that, if the affected commercial and industrial solid waste incineration unit is brought online, all necessary process changes and air pollution control devices would operate as designed.</content><note type="source"><p>Source Note: The provisions of this §113.2207 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2208"><num value="113.2208">§113.2208</num><heading>What must I do if I close my commercial and industrial solid waste incineration unit and then restart it?</heading><content>(a) If you close your commercial and industrial solid waste incineration (CISWI) unit but will restart it prior to the final compliance date in your state plan, you must meet the increments of progress specified in §113.2201 of this title (relating to What are my requirements for meeting increments of progress and achieving final compliance?).(b) If you close your CISWI unit but will restart it after your final compliance date, you must complete emission control retrofits and meet the emission limitations and operating limits on the date your unit restarts operation.</content><note type="source"><p>Source Note: The provisions of this §113.2208 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2209"><num value="113.2209">§113.2209</num><heading>What must I do if I plan to permanently close my commercial and industrial solid waste incineration unit and not restart it?</heading><content>If you plan to close your commercial and industrial solid waste incineration unit rather than comply with the state plan, submit a closure notification, including the date of closure, to the executive director by the date your final control plan is due.</content><note type="source"><p>Source Note: The provisions of this §113.2209 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2210"><num value="113.2210">§113.2210</num><heading>What is a waste management plan?</heading><content>A waste management plan is a written plan that identifies both the feasibility and the methods used to reduce or separate certain components of solid waste from the waste stream in order to reduce or eliminate toxic emissions from incinerated waste.</content><note type="source"><p>Source Note: The provisions of this §113.2210 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2211"><num value="113.2211">§113.2211</num><heading>When must I submit my waste management plan?</heading><content>You must submit a waste management plan no later than the date specified in Table 1 in §113.2261 of this title (relating to Tables Relating to Division 4) for submittal of the final control plan.</content><note type="source"><p>Source Note: The provisions of this §113.2211 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2212"><num value="113.2212">§113.2212</num><heading>What should I include in my waste management plan?</heading><content>A waste management plan must include consideration of the reduction or separation of waste-stream elements such as paper, cardboard, plastics, glass, batteries, or metals; or the use of recyclable materials. The plan must identify any additional waste management measures, and the source must implement those measures considered practical and feasible, based on the effectiveness of waste management measures already in place, the costs of additional measures, the emissions reductions expected to be achieved, and any other environmental or energy impacts they might have.</content><note type="source"><p>Source Note: The provisions of this §113.2212 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2213"><num value="113.2213">§113.2213</num><heading>What are the operator training and qualification requirements?</heading><content>(a) No commercial and industrial solid waste incineration (CISWI) unit can be operated unless a fully trained and qualified CISWI unit operator is accessible, either at the facility or can be at the facility within 1 hour. The trained and qualified CISWI unit operator may operate the CISWI unit directly or be the direct supervisor of one or more other plant personnel who operate the unit. If all qualified CISWI unit operators are temporarily not accessible, you must follow the procedures in §113.2219 of this title (relating to What if all the qualified operators are temporarily not accessible?).(b) Operator training and qualification must be obtained through a state-approved program or by completing the requirements included in subsection (c) of this section.(c) Training must be obtained by completing an incinerator operator training course that includes, at a minimum, the three elements described in paragraphs (1) through (3) of this subsection.(1) Training on the eleven subjects listed in subparagraphs (A) through (K) of this paragraph.(A) Environmental concerns, including types of emissions.(B) Basic combustion principles, including products of combustion.(C) Operation of the specific type of incinerator to be used by the operator, including proper startup, waste charging, and shutdown procedures.(D) Combustion controls and monitoring.(E) Operation of air pollution control equipment and factors affecting performance (if applicable).(F) Inspection and maintenance of the incinerator and air pollution control devices.(G) Actions to correct malfunctions or conditions that may lead to malfunction.(H) Bottom and fly ash characteristics and handling procedures.(I) Applicable federal, state, and local regulations, including Occupational Safety and Health Administration workplace standards.(J) Pollution prevention.(K) Waste management practices.(2) An examination designed and administered by the instructor.(3) Written material covering the training course topics that can serve as reference material following completion of the course.</content><note type="source"><p>Source Note: The provisions of this §113.2213 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2214"><num value="113.2214">§113.2214</num><heading>When must the operator training course be completed?</heading><content>The operator training course must be completed by the later of the three dates specified in paragraphs (1) through (3) of this section.(1) The final compliance date (Increment 2).(2) Six months after commercial and industrial solid waste incineration (CISWI) unit startup.(3) Six months after an employee assumes responsibility for operating the CISWI unit or assumes responsibility for supervising the operation of the CISWI unit.</content><note type="source"><p>Source Note: The provisions of this §113.2214 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2215"><num value="113.2215">§113.2215</num><heading>How do I obtain my operator qualification?</heading><content>(a) You must obtain operator qualification by completing a training course that satisfies the criteria under §113.2213(b) of this title (relating to What are the operator training and qualification requirements?).(b) Qualification is valid from the date on which the training course is completed and the operator successfully passes the examination required under §113.2213(c)(2) of this title.</content><note type="source"><p>Source Note: The provisions of this §113.2215 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2216"><num value="113.2216">§113.2216</num><heading>How do I maintain my operator qualification?</heading><content>To maintain qualification, you must complete an annual review or refresher course covering, at a minimum, the five topics described in paragraphs (1) through (5) of this section.(1) Update of regulations.(2) Incinerator operation, including startup and shutdown procedures, waste charging, and ash handling.(3) Inspection and maintenance.(4) Responses to malfunctions or conditions that may lead to malfunction.(5) Discussion of operating problems encountered by attendees.</content><note type="source"><p>Source Note: The provisions of this §113.2216 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2217"><num value="113.2217">§113.2217</num><heading>How do I renew my lapsed operator qualification?</heading><content>You must renew a lapsed operator qualification by one of the two methods specified in paragraphs (1) and (2) of this section.(1) For a lapse of less than 3 years, you must complete a standard annual refresher course described in §113.2216 of this title (relating to How do I maintain my operator qualification?).(2) For a lapse of 3 years or more, you must repeat the initial qualification requirements in §113.2215(a) of this title (relating to How do I obtain my operator qualification?).</content><note type="source"><p>Source Note: The provisions of this §113.2217 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2218"><num value="113.2218">§113.2218</num><heading>What site-specific documentation is required?</heading><content>(a) Documentation must be available at the facility and readily accessible for all commercial and industrial solid waste incineration (CISWI) unit operators that addresses the ten topics described in paragraphs (1) through (10) of this subsection. You must maintain this information and the training records required by subsection (c) of this section in a manner that they can be readily accessed and are suitable for inspection upon request.(1) Summary of the applicable standards under this division.(2) Procedures for receiving, handling, and charging waste.(3) Incinerator startup, shutdown, and malfunction procedures.(4) Procedures for maintaining proper combustion air supply levels.(5) Procedures for operating the incinerator and associated air pollution control systems within the standards established under this division.(6) Monitoring procedures for demonstrating compliance with the incinerator operating limits.(7) Reporting and recordkeeping procedures.(8) The waste management plan required under §§113.2210 through 113.2212 of this title (relating to What is a waste management plan? When must I submit my waste management plan? and What should I include in my waste management plan?).(9) Procedures for handling ash.(10) A list of the wastes burned during the performance test.(b) You must establish a program for reviewing the information listed in subsection (a) of this section with each incinerator operator.(1) The initial review of the information listed in subsection (a) of this section must be conducted by the later of the three dates specified in subparagraphs (A) through (C) of this paragraph.(A) The final compliance date (Increment 2).(B) Six months after CISWI unit startup.(C) Six months after being assigned to operate the CISWI unit.(2) Subsequent annual reviews of the information listed in subsection (a) of this section must be conducted no later than 12 months following the previous review.(c) You must also maintain the information specified in paragraphs (1) through (3) of this subsection.(1) Records showing the names of CISWI unit operators who have completed review of the information in subsection (a) of this section as required by subsection (b) of this section, including the date of the initial review and all subsequent annual reviews.(2) Records showing the names of the CISWI operators who have completed the operator training requirements under §113.2213 of this title (relating to What are the operator training and qualification requirements?), met the criteria for qualification under §113.2215 of this title (relating to How do I obtain my operator qualification?), and maintained or renewed their qualification under §113.2216 or §113.2217 of this title (relating to How do I maintain my operator qualification? or How do I renew my lapsed operator qualification?). Records must include documentation of training, the dates of the initial refresher training, and the dates of their qualification and all subsequent renewals of such qualifications.(3) For each qualified operator, the phone and/or pager number at which they can be reached during operating hours.</content><note type="source"><p>Source Note: The provisions of this §113.2218 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2219"><num value="113.2219">§113.2219</num><heading>What if all the qualified operators are temporarily not accessible?</heading><content>If all qualified operators are temporarily not accessible (i.e., not at the facility and not able to be at the facility within 1 hour), you must meet one of the two criteria specified in paragraphs (1) and (2) of this section, depending on the length of time that a qualified operator is not accessible.(1) When all qualified operators are not accessible for more than 8 hours, but less than 2 weeks, the commercial and industrial solid waste incineration (CISWI) unit may be operated by other plant personnel familiar with the operation of the CISWI unit who have completed a review of the information specified in §113.2218(a) of this title (relating to What site-specific documentation is required?) within the past 12 months. However, you must record the period when all qualified operators were not accessible and include this deviation in the annual report as specified under §113.2240 of this title (relating to What information must I include in my annual report?).(2) When all qualified operators are not accessible for 2 weeks or more, you must take the two actions that are described in subparagraphs (A) and (B) of this paragraph.(A) Notify the executive director of this deviation in writing within 10 days after the end of the 2-week period. In the notice, state what caused this deviation, what you are doing to ensure that a qualified operator is accessible, and when you anticipate that a qualified operator will be accessible.(B) Submit a status report to the executive director every 4 weeks outlining what you are doing to ensure that a qualified operator is accessible, stating when you anticipate that a qualified operator will be accessible, and requesting approval from the executive director to continue operation of the CISWI unit. You must submit the first status report 4 weeks after you notify the executive director of the deviation under subparagraph (A) of this paragraph. If the executive director notifies you that your request to continue operation of the CISWI unit is disapproved, the CISWI unit may continue operation for 90 days, then must cease operation. Operation of the unit may resume if you meet the two requirements in clauses (i) and (ii) of this subparagraph.(i) A qualified operator is accessible as required under §113.2213(a) of this title (relating to What are the operator training and qualification requirements?).(ii) You notify the executive director that a qualified operator is accessible and that you are resuming operation.</content><note type="source"><p>Source Note: The provisions of this §113.2219 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2220"><num value="113.2220">§113.2220</num><heading>What emission limitations must I meet and by when?</heading><content>You must meet the emission limitations specified in Table 2 in §113.2261 of this title (relating to Tables Relating to Division 4) on the date the initial performance test is required or completed (whichever is earlier).</content><note type="source"><p>Source Note: The provisions of this §113.2220 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2221"><num value="113.2221">§113.2221</num><heading>What operating limits must I meet and by when?</heading><content>(a) If you use a wet scrubber to comply with the emission limitations, you must establish operating limits for four operating parameters (as specified in Table 3 in §113.2261 of this title (relating to Tables Relating to Division 4)) as described in paragraphs (1) through (4) of this subsection during the initial performance test.(1) Maximum charge rate, calculated using one of the two different procedures in subparagraph (A) or (B) of this paragraph, as appropriate.(A) For continuous and intermittent units, maximum charge rate is 110 percent of the average charge rate measured during the most recent performance test demonstrating compliance with all applicable emission limitations.(B) For batch units, maximum charge rate is 110 percent of the daily charge rate measured during the most recent performance test demonstrating compliance with all applicable emission limitations.(2) Minimum pressure drop across the wet scrubber, which is calculated as 90 percent of the average pressure drop across the wet scrubber measured during the most recent performance test demonstrating compliance with the particulate matter emission limitations; or minimum amperage to the wet scrubber, which is calculated as 90 percent of the average amperage to the wet scrubber measured during the most recent performance test demonstrating compliance with the particulate matter emission limitations.(3) Minimum scrubber liquor flow rate, which is calculated as 90 percent of the average liquor flow rate at the inlet to the wet scrubber measured during the most recent performance test demonstrating compliance with all applicable emission limitations.(4) Minimum scrubber liquor pH, which is calculated as 90 percent of the average liquor pH at the inlet to the wet scrubber measured during the most recent performance test demonstrating compliance with the hydrogen chloride emission limitation.(b) You must meet the operating limits established during the initial performance test on the date the initial performance test is required or completed (whichever is earlier).(c) If you use a fabric filter to comply with the emission limitations, you must operate each fabric filter system such that the bag leak detection system alarm does not sound more than 5 percent of the operating time during a 6-month period. In calculating this operating time percentage, if inspection of the fabric filter demonstrates that no corrective action is required, no alarm time is counted. If corrective action is required, each alarm shall be counted as a minimum of 1 hour. If you take longer than 1 hour to initiate corrective action, the alarm time shall be counted as the actual amount of time taken by you to initiate corrective action.</content><note type="source"><p>Source Note: The provisions of this §113.2221 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2222"><num value="113.2222">§113.2222</num><heading>What if I do not use a wet scrubber to comply with the emission limitations?</heading><content>If you use an air pollution control device other than a wet scrubber, or limit emissions in some other manner, to comply with the emission limitations under §113.2220 of this title (relating to What emission limitations must I meet and by when?), you must petition the executive director for specific operating limits to be established during the initial performance test and continuously monitored thereafter. You must not conduct the initial performance test until after the petition has been approved by the executive director. Your petition must include the five items listed in paragraphs (1) through (5) of this section.(1) Identification of the specific parameters you propose to use as additional operating limits.(2) A discussion of the relationship between these parameters and emissions of regulated pollutants, identifying how emissions of regulated pollutants change with changes in these parameters, and how limits on these parameters will serve to limit emissions of regulated pollutants.(3) A discussion of how you will establish the upper and/or lower values for these parameters which will establish the operating limits on these parameters.(4) A discussion identifying the methods you will use to measure and the instruments you will use to monitor these parameters, as well as the relative accuracy and precision of these methods and instruments.(5) A discussion identifying the frequency and methods for recalibrating the instruments you will use for monitoring these parameters.</content><note type="source"><p>Source Note: The provisions of this §113.2222 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2223"><num value="113.2223">§113.2223</num><heading>What happens during periods of startup, shutdown, and malfunction?</heading><content>(a) The emission limitations and operating limits apply at all times except during commercial and industrial solid waste incineration unit startups, shutdowns, or malfunctions.(b) Each malfunction must last no longer than 3 hours.</content><note type="source"><p>Source Note: The provisions of this §113.2223 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2224"><num value="113.2224">§113.2224</num><heading>How do I conduct the initial and annual performance test?</heading><content>(a) All performance tests must consist of a minimum of three test runs conducted under conditions representative of normal operations. (b) You must document that the waste burned during the performance test is representative of the waste burned under normal operating conditions by maintaining a log of the quantity of waste burned (as required in §113.2234(2)(A) of this title (relating to What records must I keep?)) and the types of waste burned during the performance test. (c) All performance tests must be conducted using the minimum run duration specified in Table 2 in §113.2261 of this title (relating to Tables Relating to Division 4). (d) Method 1 of 40 Code of Federal Regulations (CFR) Part 60, Appendix A must be used to select the sampling location and number of traverse points. (e) Method 3A or 3B of 40 CFR Part 60, Appendix A must be used for gas composition analysis, including measurement of oxygen concentration. Method 3A or 3B of 40 CFR Part 60, Appendix A must be used simultaneously with each method. (f) All pollutant concentrations, except for opacity, must be adjusted to 7 percent oxygen using equation 1 of this subsection: Attached Graphic(g) You must determine dioxins/furans toxic equivalency by following the procedures in paragraphs (1) through (3) of this subsection. (1) Measure the concentration of each dioxin/furan tetra- through octa-congener emitted using United States Environmental Protection Agency Method 23 in 40 CFR Part 60, Appendix A. (2) For each dioxin/furan congener measured in accordance with paragraph (1) of this subsection, multiply the congener concentration by its corresponding toxic equivalency factor specified in Table 4 in §113.2261 of this title. (3) Sum the products calculated in accordance with paragraph (2) of this subsection to obtain the total concentration of dioxins/furans emitted in terms of toxic equivalency.</content><note type="source"><p>Source Note: The provisions of this §113.2224 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2225"><num value="113.2225">§113.2225</num><heading>How are the performance test data used?</heading><content>You use results of performance tests to demonstrate compliance with the emission limitations in Table 2 in §113.2261 of this title (relating to Tables Relating to Division 4).</content><note type="source"><p>Source Note: The provisions of this §113.2225 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2226"><num value="113.2226">§113.2226</num><heading>How do I demonstrate initial compliance with the emission limitations and establish the operating limits?</heading><content>You must conduct an initial performance test, as required under 40 Code of Federal Regulations §60.8, to determine compliance with the emission limitations in Table 2 in §113.2261 of this title (relating to Tables Relating to Division 4) and to establish operating limits using the procedure in §113.2221 or §113.2222 of this title (relating to What operating limits must I meet and by when? or What if I do not use a wet scrubber to comply with the emission limitations?). The initial performance test must be conducted using the test methods listed in Table 2 in §113.2261 of this title and the procedures in §113.2224 of this title (relating to How do I conduct the initial and annual performance test?).</content><note type="source"><p>Source Note: The provisions of this §113.2226 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2227"><num value="113.2227">§113.2227</num><heading>By what date must I conduct the initial performance test?</heading><content>The initial performance test must be conducted no later than 180 days after the deadline for your final compliance date. Your final compliance date is specified in Table 1 in §113.2261 of this title (relating to Tables Relating to Division 4).</content><note type="source"><p>Source Note: The provisions of this §113.2227 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2228"><num value="113.2228">§113.2228</num><heading>How do I demonstrate continuous compliance with the emission limitations and the operating limits?</heading><content>(a) You must conduct an annual performance test for particulate matter, hydrogen chloride, and opacity for each commercial and industrial solid waste incineration unit as required under 40 Code of Federal Regulations §60.8 to determine compliance with the emission limitations. The annual performance test must be conducted using the test methods listed in Table 2 in §113.2261 of this title (relating to Tables Relating to Division 4) and the procedures in §113.2224 of this title (relating to How do I conduct the initial and annual performance test?).(b) You must continuously monitor the operating parameters specified in §113.2221 of this title (relating to What operating limits must I meet and by when?) or established under §113.2222 of this title (relating to What if I do not use a wet scrubber to comply with the emission limitations?). Operation above the established maximum or below the established minimum operating limits constitutes a deviation from the established operating limits. Three-hour rolling average values are used to determine compliance (except for baghouse leak detection system alarms) unless a different averaging period is established under §113.2222 of this title. Operating limits do not apply during performance tests.(c) You must only burn the same types of waste used to establish operating limits during the performance test.</content><note type="source"><p>Source Note: The provisions of this §113.2228 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2229"><num value="113.2229">§113.2229</num><heading>By what date must I conduct the annual performance test?</heading><content>You must conduct annual performance tests for particulate matter, hydrogen chloride, and opacity within 12 months following the initial performance test. Conduct subsequent annual performance tests within 12 months following the previous one.</content><note type="source"><p>Source Note: The provisions of this §113.2229 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2230"><num value="113.2230">§113.2230</num><heading>May I conduct performance testing less often?</heading><content>(a) You can test less often for a given pollutant if you have test data for at least 3 years, and all performance tests for the pollutant (particulate matter, hydrogen chloride, or opacity) over 3 consecutive years show that you comply with the emission limitation. In this case, you do not have to conduct a performance test for that pollutant for the next 2 years. You must conduct a performance test during the third year and no more than 36 months following the previous performance test.(b) If your commercial and industrial solid waste incineration unit continues to meet the emission limitation for particulate matter, hydrogen chloride, or opacity, you may choose to conduct performance tests for these pollutants every third year, but each test must be within 36 months of the previous performance test.(c) If a performance test shows a deviation from an emission limitation for particulate matter, hydrogen chloride, or opacity, you must conduct annual performance tests for that pollutant until all performance tests over a 3-year period show compliance.</content><note type="source"><p>Source Note: The provisions of this §113.2230 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2231"><num value="113.2231">§113.2231</num><heading>May I conduct a repeat performance test to establish new operating limits?</heading><content>(a) Yes. You may conduct a repeat performance test at any time to establish new values for the operating limits. The executive director may request a repeat performance test at any time.(b) You must repeat the performance test if your feed stream is different than the feed streams used during any performance test used to demonstrate compliance.</content><note type="source"><p>Source Note: The provisions of this §113.2231 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2232"><num value="113.2232">§113.2232</num><heading>What monitoring equipment must I install and what parameters must I monitor?</heading><content>(a) If you are using a wet scrubber to comply with the emission limitation under §113.2220 of this title (relating to What emission limitations must I meet and by when?), you must install, calibrate (to manufacturers' specifications), maintain, and operate devices (or establish methods) for monitoring the value of the operating parameters used to determine compliance with the operating limits listed in Table 3 in §113.2261 of this title (relating to Tables Relating to Division 4). These devices (or methods) must measure and record the values for these operating parameters at the frequencies indicated in Table 3 in §113.2261 of this title at all times except as specified in §113.2233(a) of this title (relating to Is there a minimum amount of monitoring data I must obtain?).(b) If you use a fabric filter to comply with the requirements of this division, you must install, calibrate, maintain, and continuously operate a bag leak detection system as specified in paragraphs (1) through (8) of this subsection.(1) You must install and operate a bag leak detection system for each exhaust stack of the fabric filter.(2) Each bag leak detection system must be installed, operated, calibrated, and maintained in a manner consistent with the manufacturer's written specifications and recommendations.(3) The bag leak detection system must be certified by the manufacturer to be capable of detecting particulate matter emissions at concentrations of 10 milligrams per actual cubic meter or less.(4) The bag leak detection system sensor must provide output of relative or absolute particulate matter loadings.(5) The bag leak detection system must be equipped with a device to continuously record the output signal from the sensor.(6) The bag leak detection system must be equipped with an alarm system that will sound automatically when an increase in relative particulate matter emissions over a preset level is detected. The alarm must be located where it is easily heard by plant operating personnel.(7) For positive pressure fabric filter systems, a bag leak detection system must be installed in each baghouse compartment or cell. For negative pressure or induced air fabric filters, the bag leak detector must be installed downstream of the fabric filter.(8) Where multiple detectors are required, the system's instrumentation and alarm may be shared among detectors.(c) If you are using something other than a wet scrubber to comply with the emission limitations under §113.2220 of this title, you must install, calibrate (to the manufacturers' specifications), maintain, and operate the equipment necessary to monitor compliance with the site-specific operating limits established using the procedures in §113.2222 of this title (relating to What if I do not use a wet scrubber to comply with the emission limitations?).</content><note type="source"><p>Source Note: The provisions of this §113.2232 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2233"><num value="113.2233">§113.2233</num><heading>Is there a minimum amount of monitoring data I must obtain?</heading><content>(a) Except for monitoring malfunctions, associated repairs, and required quality assurance or quality control activities (including, as applicable, calibration checks and required zero and span adjustments of the monitoring system), you must conduct all monitoring at all times the commercial and industrial solid waste incineration unit is operating.(b) Do not use data recorded during monitoring malfunctions, associated repairs, and required quality assurance or quality control activities for meeting the requirements of this division, including data averages and calculations. You must use all the data collected during all other periods in assessing compliance with the operating limits.</content><note type="source"><p>Source Note: The provisions of this §113.2233 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2234"><num value="113.2234">§113.2234</num><heading>What records must I keep?</heading><content>You must maintain the 13 items (as applicable) as specified in paragraphs (1) through (13) of this section for a period of at least 5 years:(1) Calendar date of each record.(2) Records of the data described in subparagraphs (A) through (F) of this paragraph:(A) The commercial and industrial solid waste incineration (CISWI) unit charge dates, times, weights, and hourly charge rates.(B) Liquor flow rate to the wet scrubber inlet every 15 minutes of operation, as applicable.(C) Pressure drop across the wet scrubber system every 15 minutes of operation or amperage to the wet scrubber every 15 minutes of operation, as applicable.(D) Liquor pH as introduced to the wet scrubber every 15 minutes of operation, as applicable.(E) For affected CISWI units that establish operating limits for controls other than wet scrubbers under §113.2222 of this title (relating to What if I do not use a wet scrubber to comply with the emission limitations?), you must maintain data collected for all operating parameters used to determine compliance with the operating limits.(F) If a fabric filter is used to comply with the emission limitations, you must record the date, time, and duration of each alarm and the time corrective action was initiated and completed, and a brief description of the cause of the alarm and the corrective action taken. You must also record the percent of operating time during each 6-month period that the alarm sounds, calculated as specified in §113.2221(c) of this title (relating to What operating limits must I meet and by when?).(3) Identification of calendar dates and times for which monitoring systems used to monitor operating limits were inoperative, inactive, malfunctioning, or out of control (except for downtime associated with zero and span and other routine calibration checks). Identify the operating parameters not measured, the duration, reasons for not obtaining the data, and a description of corrective actions taken.(4) Identification of calendar dates, times, and durations of malfunctions, and a description of the malfunction and the corrective action taken.(5) Identification of calendar dates and times for which data show a deviation from the operating limits in Table 3 in §113.2261 of this title (relating to Tables Relating to Division 4) or a deviation from other operating limits established under §113.2222 of this title with a description of the deviations, reasons for such deviations, and a description of corrective actions taken.(6) The results of the initial, annual, and any subsequent performance tests conducted to determine compliance with the emission limits and/or to establish operating limits, as applicable. Retain a copy of the complete test report including calculations.(7) Records showing the names of CISWI unit operators who have completed review of the information in §113.2218(a) of this title (relating to What site-specific documentation is required?) as required by §113.2218(b) of this title, including the date of the initial review and all subsequent annual reviews.(8) Records showing the names of the CISWI operators who have completed the operator training requirements under §113.2213 of this title (relating to What are the operator training and qualification requirements?), met the criteria for qualification under §113.2215 of this title (relating to How do I obtain my operator qualification?), and maintained or renewed their qualification under §113.2216 or §113.2217 of this title (relating to How do I maintain my operator qualification? or How do I renew my lapsed operator qualification?). Records must include documentation of training, the dates of the initial and refresher training, and the dates of their qualification and all subsequent renewals of such qualifications.(9) For each qualified operator, the phone and/or pager number at which they can be reached during operating hours.(10) Records of calibration of any monitoring devices as required under §113.2232 of this title (relating to What monitoring equipment must I install and what parameters must I monitor?).(11) Equipment vendor specifications and related operation and maintenance requirements for the incinerator, emission controls, and monitoring equipment.(12) The information listed in §113.2218(a) of this title.(13) On a daily basis, keep a log of the quantity of waste burned and the types of waste burned (always required).</content><note type="source"><p>Source Note: The provisions of this §113.2234 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2235"><num value="113.2235">§113.2235</num><heading>Where and in what format must I keep my records?</heading><content>All records must be available onsite in either paper copy or computer-readable format that can be printed upon request, unless an alternative format is approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §113.2235 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2236"><num value="113.2236">§113.2236</num><heading>What reports must I submit?</heading><content>See Table 5 in §113.2261 of this title (relating to Tables Relating to Division 4) for a summary of the reporting requirements.</content><note type="source"><p>Source Note: The provisions of this §113.2236 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2237"><num value="113.2237">§113.2237</num><heading>When must I submit my waste management plan?</heading><content>You must submit the waste management plan no later than the date specified in Table 1 in §113.2261 of this title (relating to Tables Relating to Division 4) for submittal of the final control plan.</content><note type="source"><p>Source Note: The provisions of this §113.2237 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2238"><num value="113.2238">§113.2238</num><heading>What information must I submit following my initial performance test?</heading><content>You must submit the information specified in paragraphs (1) through (3) of this section no later than 60 days following the initial performance test. All reports must be signed by the facilities manager.(1) The complete test report for the initial performance test results obtained under §113.2226 of this title (relating to How do I demonstrate initial compliance with the emission limitations and establish the operating limits?), as applicable.(2) The values for the site-specific operating limits established in §113.2221 or §113.2222 of this title (relating to What operating limits must I meet and by when? or What if I do not use a web scrubber to comply with the emission limitations?).(3) If you are using a fabric filter to comply with the emission limitations, documentation that a bag leak detection system has been installed and is being operated, calibrated, and maintained as required by §113.2232(b) of this title (relating to What monitoring equipment must I install and what parameters must I monitor?).</content><note type="source"><p>Source Note: The provisions of this §113.2238 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2239"><num value="113.2239">§113.2239</num><heading>When must I submit my annual report?</heading><content>You must submit an annual report no later than 12 months following the submittal of the information in §113.2238 of this title (relating to What information must I submit following my initial performance test?). You must submit subsequent reports no more than 12 months following the previous report. (If the unit is subject to permitting requirements under Title V of the Federal Clean Air Act, you may be required by the permit to submit these reports more frequently.)</content><note type="source"><p>Source Note: The provisions of this §113.2239 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2240"><num value="113.2240">§113.2240</num><heading>What information must I include in my annual report?</heading><content>The annual report required under §113.2239 of this title (relating to When must I submit my annual report?) must include the ten items listed in paragraphs (1) through (10) of this section. If you have a deviation from the operating limits or the emission limitations, you must also submit deviation reports as specified in §§113.2241, 113.2242, and 113.2243 of this title (relating to What else must I report if I have a deviation from the operating limits or the emission limitations?, What must I include in the deviation report?, and What else must I report if I have a deviation from the requirement to have a qualified operator accessible?).(1) Company name and address.(2) Statement by a responsible official, with that official's name, title, and signature, certifying the accuracy of the content of the report.(3) Date of report and beginning and ending dates of the reporting period.(4) The values for the operating limits established pursuant to §113.2221 or §113.2222 of this title (relating to What operating limits must I meet and by when? or What if I do not use a wet scrubber to comply with the emission limitations?).(5) If no deviation from any emission limitation or operating limit that applies to you has been reported, a statement that there was no deviation from the emission limitations or operating limits during the reporting period, and that no monitoring system used to determine compliance with the operating limits was inoperative, inactive, malfunctioning, or out of control.(6) The highest recorded 3-hour average and the lowest recorded 3-hour average, as applicable, for each operating parameter recorded for the calendar year being reported.(7) Information recorded under §113.2234(2)(F) and (3) through (5) of this title (relating to What records must I keep?) for the calendar year being reported.(8) If a performance test was conducted during the reporting period, the results of that test.(9) If you met the requirements of §113.2230(a) or (b) of this title (relating to May I conduct performance testing less often?), and did not conduct a performance test during the reporting period, you must state that you met the requirements of §113.2230(a) or (b) of this title, and, therefore, you were not required to conduct a performance test during the reporting period.(10) Documentation of periods when all qualified commercial and industrial solid waste incineration unit operators were unavailable for more than 8 hours, but less than 2 weeks.</content><note type="source"><p>Source Note: The provisions of this §113.2240 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2241"><num value="113.2241">§113.2241</num><heading>What else must I report if I have a deviation from the operating limits or the emission limitations?</heading><content>(a) You must submit a deviation report if any recorded 3-hour average parameter level is above the maximum operating limit or below the minimum operating limit established under this division, if the bag leak detection system alarm sounds for more than 5 percent of the operating time for the 6-month reporting period, or if a performance test was conducted that deviated from any emission limitation.(b) The deviation report must be submitted by August 1 of that year for data collected during the first half of the calendar year (January 1 to June 30), and by February 1 of the following year for data you collected during the second half of the calendar year (July 1 to December 31).</content><note type="source"><p>Source Note: The provisions of this §113.2241 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2242"><num value="113.2242">§113.2242</num><heading>What must I include in the deviation report?</heading><content>In each report required under §113.2241 of this title (relating to What else must I report if I have a deviation from the operating limits or the emission limitations?), for any pollutant or parameter that deviated from the emission limitations or operating limits specified in this division, include the six items described in paragraphs (1) through (6) of this section.(1) The calendar dates and times your unit deviated from the emission limitations or operating limit requirements.(2) The averaged and recorded data for those dates.(3) Duration and causes of each deviation from the emission limitations or operating limits and your corrective actions.(4) A copy of the operating limit monitoring data during each deviation and any test report that documents the emission levels.(5) The dates, times, number, duration, and causes for monitoring downtime incidents (other than downtime associated with zero, span, and other routine calibration checks).(6) Whether each deviation occurred during a period of startup, shutdown, or malfunction, or during another period.</content><note type="source"><p>Source Note: The provisions of this §113.2242 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2243"><num value="113.2243">§113.2243</num><heading>What else must I report if I have a deviation from the requirement to have a qualified operator accessible?</heading><content>(a) If all qualified operators are not accessible for 2 weeks or more, you must take the two actions in paragraphs (1) and (2) of this subsection.(1) Submit a notification of the deviation within 10 days after the end of the 2-week period that includes the three items in subparagraphs (A) through (C) of this paragraph.(A) A statement of what caused the deviation.(B) A description of what you are doing to ensure that a qualified operator is accessible.(C) The date when you anticipate that a qualified operator will be available.(2) Submit a status report to the executive director every 4 weeks that includes the three items in subparagraphs (A) through (C) of this paragraph.(A) A description of what you are doing to ensure that a qualified operator is accessible.(B) The date when you anticipate that a qualified operator will be accessible.(C) Request approval from the executive director to continue operation of the commercial and industrial solid waste incineration unit.(b) If your unit was shut down by the executive director, under the provisions of §113.2219(2)(B) of this title (relating to What if all the qualified operators are temporarily not accessible?), due to a failure to provide an accessible qualified operator, you must notify the executive director that you are resuming operation once a qualified operator is accessible.</content><note type="source"><p>Source Note: The provisions of this §113.2243 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2244"><num value="113.2244">§113.2244</num><heading>Are there any other notifications or reports that I must submit?</heading><content>Yes. You must submit notifications as provided by 40 Code of Federal Regulations §60.7.</content><note type="source"><p>Source Note: The provisions of this §113.2244 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2245"><num value="113.2245">§113.2245</num><heading>In what form can I submit my reports?</heading><content>Submit initial, annual, and deviation reports electronically or in paper format, postmarked on or before the submittal due dates.</content><note type="source"><p>Source Note: The provisions of this §113.2245 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2246"><num value="113.2246">§113.2246</num><heading>Can reporting dates be changed?</heading><content>If the executive director agrees, you may change the semiannual or annual reporting dates. See 40 Code of Federal Regulations §60.19(c) for procedures to seek approval to change your reporting date.</content><note type="source"><p>Source Note: The provisions of this §113.2246 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2247"><num value="113.2247">§113.2247</num><heading>Am I required to apply for and obtain a Title V operating permit for my unit?</heading><content>Yes. Each commercial and industrial solid waste incineration unit must operate pursuant to a permit issued under §129(e) and Title V of the Federal Clean Air Act by the later of the two dates in paragraphs (1) and (2) of this section.(1) Thirty-six months after December 1, 2000.(2) The effective date of the Title V permit program to which your unit is subject. If your unit is subject to Title V as a result of some triggering requirement(s) other than this division (for example, being a major source), then your unit may be required to apply for and obtain a Title V permit prior to the deadlines noted in this section. If more than one requirement triggers the requirement to apply for a Title V permit, the 12-month time frame for filing a Title V application is triggered by the requirement which first causes the source to be subject to Title V.</content><note type="source"><p>Source Note: The provisions of this §113.2247 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2248"><num value="113.2248">§113.2248</num><heading>What is an air curtain incinerator?</heading><content>(a) An air curtain incinerator operates by forcefully projecting a curtain of air across an open chamber or open pit in which combustion occurs. Incinerators of this type can be constructed above or below ground and with or without refractory walls and floor. (Air curtain incinerators are not to be confused with conventional combustion devices with enclosed fireboxes and controlled air technology such as mass burn, modular, and fluidized bed combustors.)(b) Air curtain incinerators that burn only the materials listed in paragraphs (1) through (3) of this subsection are only required to meet the requirements under "Air Curtain Incinerators" (this section and §§113.2249 through 113.2260 of this title (relating to What are my requirements for meeting increments of progress and achieving final compliance?, When must I complete each increment of progress?, What must I include in the notifications of achievement of increments of progress?, When must I submit the notifications of achievement of increments of progress?, What if I do not meet an increment of progress?, How do I comply with the increment of progress for submittal of a control plan?, How do I comply with the increment of progress for achieving final compliance?, What must I do if I close my air curtain incinerator and then restart it?, What must I do if I plan to permanently close my air curtain incinerator and not restart it?, What are the emission limitations for air curtain incinerators?, How must I monitor opacity for air curtain incinerators?, and What are the recordkeeping and reporting requirements for air curtain incinerators?)). In addition, air curtain incinerators must meet the requirements of §113.2247 of this title (relating to Am I required to apply for and obtain a Title V operating permit for my unit?).(1) 100 percent wood waste.(2) 100 percent clean lumber.(3) 100 percent mixture of only wood waste, clean lumber, and/or yard waste.</content><note type="source"><p>Source Note: The provisions of this §113.2248 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2249"><num value="113.2249">§113.2249</num><heading>What are my requirements for meeting increments of progress and achieving final compliance?</heading><content>If you plan to achieve compliance more than 1 year following the effective date of state plan approval, you must meet the two increments of progress specified in paragraphs (1) and (2) of this section.(1) Submit a final control plan.(2) Achieve final compliance.</content><note type="source"><p>Source Note: The provisions of this §113.2249 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2250"><num value="113.2250">§113.2250</num><heading>When must I complete each increment of progress?</heading><content>Table 1 in §113.2261 of this title (relating to Tables Relating to Division 4) specifies compliance dates for each of the increments of progress.</content><note type="source"><p>Source Note: The provisions of this §113.2250 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2251"><num value="113.2251">§113.2251</num><heading>What must I include in the notifications of achievement of increments of progress?</heading><content>Your notification of achievement of increments of progress must include the three items described in paragraphs (1) through (3) of this section.(1) Notification that the increment of progress has been achieved.(2) Any items required to be submitted with each increment of progress (see §113.2254 of this title (relating to How do I comply with the increment of progress for submittal of a control plan?)).(3) Signature of the owner or operator of the incinerator.</content><note type="source"><p>Source Note: The provisions of this §113.2251 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2252"><num value="113.2252">§113.2252</num><heading>When must I submit the notifications of achievement of increments of progress?</heading><content>Notifications for achieving increments of progress must be postmarked no later than 10 business days after the compliance date for the increment.</content><note type="source"><p>Source Note: The provisions of this §113.2252 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2253"><num value="113.2253">§113.2253</num><heading>What if I do not meet an increment of progress?</heading><content>If you fail to meet an increment of progress, you must submit a notification to the executive director postmarked within 10 business days after the date for that increment of progress in Table 1 in §113.2261 of this title (relating to Tables Relating to Division 4). You must inform the executive director that you did not meet the increment, and you must continue to submit reports each subsequent calendar month until the increment of progress is met.</content><note type="source"><p>Source Note: The provisions of this §113.2253 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2254"><num value="113.2254">§113.2254</num><heading>How do I comply with the increment of progress for submittal of a control plan?</heading><content>For your control plan increment of progress, you must satisfy the two requirements specified in paragraphs (1) and (2) of this section.(1) Submit the final control plan, including a description of any devices for air pollution control and any process changes that you will use to comply with the emission limitations and other requirements of this division.(2) Maintain an onsite copy of the final control plan.</content><note type="source"><p>Source Note: The provisions of this §113.2254 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2255"><num value="113.2255">§113.2255</num><heading>How do I comply with the increment of progress for achieving final compliance?</heading><content>For the final compliance increment of progress, you must complete all process changes and retrofit construction of control devices, as specified in the final control plan, so that, if the affected incinerator is brought online, all necessary process changes and air pollution control devices would operate as designed.</content><note type="source"><p>Source Note: The provisions of this §113.2255 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2256"><num value="113.2256">§113.2256</num><heading>What must I do if I close my air curtain incinerator and then restart it?</heading><content>(a) If you close your incinerator but will reopen it prior to the final compliance date in your state plan, you must meet the increments of progress specified in §113.2249 of this title (relating to What are my requirements for meeting increments of progress and achieving final compliance?).(b) If you close your incinerator but will restart it after your final compliance date, you must complete emission control retrofits and meet the emission limitations on the date your incinerator restarts operation.</content><note type="source"><p>Source Note: The provisions of this §113.2256 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2257"><num value="113.2257">§113.2257</num><heading>What must I do if I plan to permanently close my air curtain incinerator and not restart it?</heading><content>If you plan to close your incinerator rather than comply with the state plan, submit a closure notification, including the date of closure, to the executive director by the date your final control plan is due.</content><note type="source"><p>Source Note: The provisions of this §113.2257 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2258"><num value="113.2258">§113.2258</num><heading>What are the emission limitations for air curtain incinerators?</heading><content>(a) After the date the initial stack test is required or completed (whichever is earlier), you must meet the limitations in paragraphs (1) and (2) of this subsection.(1) The opacity limitation is 10 percent (6-minute average), except as described in paragraph (2) of this subsection.(2) The opacity limitation is 35 percent (6-minute average) during the startup period that is within the first 30 minutes of operation.(b) Except during malfunctions, the requirements of this division apply at all times, and each malfunction must not exceed 3 hours.</content><note type="source"><p>Source Note: The provisions of this §113.2258 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2259"><num value="113.2259">§113.2259</num><heading>How must I monitor opacity for air curtain incinerators?</heading><content>(a) Use Method 9 of 40 Code of Federal Regulations (CFR) Part 60, Appendix A to determine compliance with the opacity limitation.(b) Conduct an initial test for opacity as specified in 40 CFR §60.8 no later than 180 days after your final compliance date.(c) After the initial test for opacity, conduct annual tests no more than 12 calendar months following the date of your previous test.</content><note type="source"><p>Source Note: The provisions of this §113.2259 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2260"><num value="113.2260">§113.2260</num><heading>What are the recordkeeping and reporting requirements for air curtain incinerators?</heading><content>(a) Keep records of results of all initial and annual opacity tests onsite in either paper copy or electronic format, unless the executive director approves another format, for at least 5 years.(b) Make all records available for submittal to the executive director or for an inspector's onsite review.(c) Submit an initial report no later than 60 days following the initial opacity test that includes the information specified in paragraphs (1) and (2) of this subsection.(1) The types of materials you plan to combust in your air curtain incinerator.(2) The results (each 6-minute average) of the initial opacity tests.(d) Submit annual opacity test results within 12 months following the previous report.(e) Submit initial and annual opacity test reports as electronic or paper copy on or before the applicable submittal date and keep a copy onsite for a period of 5 years.</content><note type="source"><p>Source Note: The provisions of this §113.2260 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2261"><num value="113.2261">§113.2261</num><heading>Tables Relating to Division 4</heading><content>(a) Table 1 specifies the increments of progress and compliance schedules for Division 4 of this subchapter. Attached Graphic(b) Table 2 of this subsection specifies the emission limitations for Division 4 of this subchapter. Attached Graphic(c) Table 3 of this subsection specifies operating limits for wet scrubbers for Division 4 of this subchapter. Attached Graphic(d) Table 4 of this subsection specifies the toxic equivalency factors for Division 4 of this subchapter. Attached Graphic(e) Table 5 of this subsection is a summary of reporting requirements for Division 4 of this subchapter Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §113.2261 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2300"><num value="113.2300">§113.2300</num><heading>Definitions</heading><content>Terms used but not defined in this division are defined in the Federal Clean Air Act and 40 Code of Federal Regulations Part 60, Subpart A (General Provisions). (1) Administrator--As follows: (A) For approved and effective state §111(d)/129 plans, the director of the state air pollution control agency, or his or her delegate; (B) For federal §111(d)/129 plans, the administrator of the United States Environmental Protection Agency (EPA), an employee of the EPA, the director of the state air pollution control agency, or employee of the state air pollution control agency to whom the authority has been delegated by the administrator of the EPA to perform the specified task; and (C) For New Source Performance Standards in 40 Code of Federal Regulations Part 60, the administrator of the EPA, an employee of the EPA, the director of the state air pollution control agency, or employee of the state air pollution control agency to whom the authority has been delegated by the administrator of the EPA to perform the specified task. (2) Air curtain incinerator--An incineration unit operating by forcefully projecting a curtain of air across an open, integrated combustion chamber (fire box) or open pit or trench (trench burner) in which combustion occurs. For the purpose of this division, air curtain incinerators include both firebox and trench burner units. (3) Auxiliary fuel--Natural gas, liquified petroleum gas, fuel oil, or diesel fuel. (4) Batch other solid waste incineration (OSWI) unit--An OSWI unit that is designed such that neither waste charging nor ash removal can occur during combustion. (5) Calendar quarter--Three consecutive months (nonoverlapping) beginning on: January 1, April 1, July 1, or October 1. (6) Calendar year--365 consecutive days starting on January 1 and ending on December 31. (7) Chemotherapeutic waste--Waste material resulting from the production or use of anti-neoplastic agents used for the purpose of stopping or reversing the growth of malignant cells. (8) Class II municipal solid waste landfill--A landfill that meets four criteria: (A) Accepts, for incineration or disposal, less than 20 tons per day of municipal solid waste or other solid wastes based on an annual average; (B) Is located on a site where there is no evidence of groundwater pollution caused or contributed to by the landfill; (C) Is not connected by road to a Class I municipal solid waste landfill, as defined by Alaska regulatory code 18 AAC 60.300(c) or, if connected by road, is located more than 50 miles from a Class I municipal solid waste landfill; and (D) Serves a community that meets one of two criteria: (i) Experiences for at least 3 months each year, an interruption in access to surface transportation, preventing access to a Class I municipal solid waste landfill; or (ii) Has no practicable waste management alternative, with a landfill located in an area that annually receives 25 inches or less of precipitation. (9) Class III municipal solid waste landfill--A landfill that is not connected by road to a Class I municipal solid waste landfill, as defined by Alaska regulatory code 18 AAC 60.300(c) or, if connected by road, is located more than 50 miles from a Class I municipal solid waste landfill, and that accepts, for disposal, either of the following two criteria: (A) Ash from incinerated municipal waste in quantities less than one ton per day on an annual average, which ash must be free of food scraps that might attract animals; or (B) Less than five tons per day of municipal solid waste, based on an annual average, and is not located in a place that meets either of the following criteria: (i) Where public access is restricted, including restrictions on the right to move to the place and reside there; or (ii) That is provided by an employer and that is populated totally by persons who are required to reside there as a condition of employment and who do not consider the place to be their permanent residence. (10) Clean lumber--Wood or wood products that have been cut or shaped and include wet, air-dried, and kiln-dried wood products. Clean lumber does not include wood products that have been painted, pigment-stained, or pressure-treated by compounds such as chromate copper arsenate, pentachlorophenol, and creosote, or manufactured wood products that contain adhesives or resins (e.g., plywood, particle board, flake board, and oriented strand board). (11) Collected from--The transfer of material from the site at which the material is generated to a separate site where the material is burned. (12) Contained gaseous material--Gases that are in a container when that container is combusted. (13) Continuous emission monitoring system or CEMS--A monitoring system for continuously measuring and recording the emissions of a pollutant from an other solid waste incineration unit. (14) Continuous other solid waste incineration (OSWI) unit--An OSWI unit that is designed to allow waste charging and ash removal during combustion. (15) Deviation--Any instance in which a unit that meets the requirements in 40 Code of Federal Regulations (CFR) §60.2991, or an owner or operator of such a source: (A) Fails to meet any requirement or obligation established by this division, including but not limited to any emission limitation, operating limit, or operator qualification and accessibility requirements; (B) Fails to meet any term or condition that is adopted to implement an applicable requirement in this division and that is included in the operating permit for any unit that meets requirements in 40 CFR §60.2991 and is required to obtain such a permit; or (C) Fails to meet any emission limitation, operating limit, or operator qualification and accessibility requirement in this division during startup, shutdown, or malfunction, regardless of whether or not such failure is allowed by this division. (16) Dioxins/furans--Tetra-through octachlorinated dibenzo-p-dioxins and dibenzofurans. (17) Energy recovery--The process of recovering thermal energy from combustion for useful purposes such as steam generation or process heating. (18) United States Environmental Protection Agency or EPA--The administrator of the EPA or employee of the EPA that is delegated the authority to perform the specified task. (19) Institutional facility--A land-based facility owned and/or operated by an organization having a governmental, educational, civic, or religious purpose such as a school, hospital, prison, military installation, church, or other similar establishment or facility. (20) Institutional waste--Solid waste (as defined in this division) that is combusted at any institutional facility using controlled flame combustion in an enclosed, distinct operating unit: whose design does not provide for energy recovery (as defined in this division); operated without energy recovery (as defined in this division); or operated with only waste heat recovery (as defined in this division). Institutional waste also means solid waste (as defined in this division) combusted on site in an air curtain incinerator that is a distinct operating unit of any institutional facility. (21) Institutional waste incineration unit--Any combustion unit that combusts institutional waste (as defined in this division) and is a distinct operating unit of the institutional facility that generated the waste. Institutional waste incineration units include field-erected, modular, cyclonic burn barrel, and custom built incineration units operating with starved or excess air, and any air curtain incinerator that is a distinct operating unit of the institutional facility that generated the institutional waste (except those air curtain incinerators listed in 40 Code of Federal Regulations §60.2994(b)). (22) Intermittent other solid waste incineration (OSWI) unit--An OSWI unit that is designed to allow waste charging, but not ash removal, during combustion. (23) Low-level radioactive waste--Waste material that contains radioactive nuclides emitting primarily beta or gamma radiation, or both, in concentrations or quantities that exceed applicable federal or state standards for unrestricted release. Low-level radioactive waste is not high-level radioactive waste, spent nuclear fuel, or byproduct material as defined by the Atomic Energy Act of 1954 (42 United States Code 2014(e)(2)). (24) Malfunction--Any sudden, infrequent, and not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner. Failures that are caused, in part, by poor maintenance or careless operation are not malfunctions. (25) Metropolitan Statistical Area--Any areas listed as metropolitan statistical areas in Office of Management and Budget Bulletin No. 05 - 02 entitled "Update of Statistical Area Definitions and Guidance on Their Uses" dated February 22, 2005 (available on the Web at http://www.whitehouse.gov/omb/bulletins/). (26) Modification or modified unit--An incineration unit you have changed on or after June 16, 2006, and that meets one of two criteria: (A) The cumulative cost of the changes over the life of the unit exceeds 50 percent of the original cost of building and installing the unit (not including the cost of land) updated to current costs (current dollars). For an other solid waste incineration (OSWI) unit, to determine what systems are within the boundary of the unit used to calculate these costs, see the definition of OSWI unit. (B) Any physical change in the OSWI unit or change in the method of operating it that increases the amount of any air pollutant emitted for which the Federal Clean Air Act, §129 or §111 has established standards. (27) Municipal solid waste--Refuse (and refuse-derived fuel) collected from the general public and from residential, commercial, institutional, and industrial sources consisting of paper, wood, yard wastes, food wastes, plastics, leather, rubber, and other combustible materials and non-combustible materials such as metal, glass, and rock, provided that: (A) The term does not include industrial process wastes or medical wastes that are segregated from such other wastes; and (B) an incineration unit shall not be considered to be combusting municipal solid waste for purposes of this division if it combusts a fuel feed stream, 30 percent or less of the weight of which is comprised, in aggregate, of municipal solid waste, as determined by 40 Code of Federal Regulations §60.2993(b). (28) Municipal waste combustion unit--For the purpose of this division, any setting or equipment that combusts municipal solid waste (as defined in this division) including, but not limited to, field-erected, modular, cyclonic burn barrel, and custom built incineration units (with or without energy recovery) operating with starved or excess air, boilers, furnaces, pyrolysis/combustion units, and air curtain incinerators (except those air curtain incinerators listed in 40 Code of Federal Regulations §60.2994(b)). (29) Other solid waste incineration (OSWI) unit--Either a very small municipal waste combustion unit or an institutional waste incineration unit, as defined in this division. Unit types listed in 40 Code of Federal Regulations §60.2993 as being excluded from the division are not OSWI units subject to this division. While not all OSWI units will include all of the following components, an OSWI unit includes, but is not limited to, the municipal or institutional solid waste feed system, grate system, flue gas system, waste heat recovery equipment, if any, and bottom ash system. The OSWI unit does not include air pollution control equipment or the stack. The OSWI unit boundary starts at the municipal or institutional waste hopper (if applicable) and extends through two areas: (A) The combustion unit flue gas system, which ends immediately after the last combustion chamber or after the waste heat recovery equipment, if any; and (B) The combustion unit bottom ash system, which ends at the truck loading station or similar equipment that transfers the ash to final disposal. The OSWI unit includes all ash handling systems connected to the bottom ash handling system. (30) Particulate matter--Total particulate matter emitted from other solid waste incineration units as measured by Method 5 or Method 29 of 40 Code of Federal Regulations Part 60, Appendix A. (31) Pathological waste--Waste material consisting of only human or animal remains, anatomical parts, and/or tissue, the bags/containers used to collect and transport the waste material, and animal bedding (if applicable). (32) Reconstruction--Rebuilding an incineration unit and meeting two criteria: (A) The reconstruction begins on or after June 16, 2006. (B) The cumulative cost of the construction over the life of the incineration unit exceeds 50 percent of the original cost of building and installing the unit (not including land) updated to current costs (current dollars). For an other solid waste incineration (OSWI) unit, to determine what systems are within the boundary of the unit used to calculate these costs, see the definition of OSWI unit. (33) Refuse-derived fuel--A type of municipal solid waste produced by processing municipal solid waste through shredding and size classification. This includes all classes of refuse-derived fuel including two fuels: (A) Low-density fluff refuse-derived fuel through densified refuse-derived fuel; and (B) Pelletized refuse-derived fuel. (34) Shutdown--The period of time after all waste has been combusted in the primary chamber. For continuous other solid waste incineration (OSWI), shutdown shall commence no less than 2 hours after the last charge to the incinerator. For intermittent OSWI, shutdown shall commence no less than 4 hours after the last charge to the incinerator. For batch OSWI, shutdown shall commence no less than 5 hours after the high-air phase of combustion has been completed. (35) Solid waste--Any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permits under the Federal Water Pollution Control Act, §402 as amended (33 United States Code (USC), §1342), or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (42 USC, §2014). (36) Standard conditions--When referring to units of measure, a temperature of 68 degrees Fahrenheit (20 degrees Celsius) and a pressure of 1 atmosphere (101.3 kilopascals). (37) Startup period--The period of time between the activation of the system and the first charge to the other solid waste incineration (OSWI) unit. For batch OSWI, startup means the period of time between activation of the system and ignition of the waste. (38) Very small municipal waste combustion unit--Any municipal waste combustion unit that has the capacity to combust less than 35 tons per day of municipal solid waste or refuse-derived fuel, as determined by the calculations in §113.2356 of this title (relating to What equations must I use?). (39) Waste heat recovery--The process of recovering heat from the combustion flue gases outside of the combustion firebox by convective heat transfer only. (40) Wet scrubber--An add-on air pollution control device that utilizes an aqueous or alkaline scrubbing liquor to collect particulate matter (including nonvaporous metals and condensed organics) and/or to absorb and neutralize acid gases. (41) Wood waste--Untreated wood and untreated wood products, including tree stumps (whole or chipped), trees, tree limbs (whole or chipped), bark, sawdust, chips, scraps, slabs, millings, and shavings. Wood waste does not include: (A) Grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands. (B) Construction, renovation, or demolition wastes. (C) Clean lumber. (D) Treated wood and treated wood products, including wood products that have been painted, pigment-stained, or pressure treated by compounds such as chromate copper arsenate, pentachlorophenol, and creosote, or manufactured wood products that contain adhesives or resins (e.g., plywood, particle board, flake board, and oriented strand board). (42) Yard waste--Grass, grass clippings, bushes, shrubs, and clippings from bushes and shrubs. Yard waste comes from residential, commercial/retail, institutional, or industrial sources as part of maintaining yards or other private or public lands. Yard waste does not include two items: (A) Construction, renovation, and demolition wastes. (B) Clean lumber.</content><note type="source"><p>Source Note: The provisions of this §113.2300 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2301"><num value="113.2301">§113.2301</num><heading>When must I comply?</heading><content>Table 1 in §113.2357 of this title (relating to Tables Relating to Division 5) specifies the final compliance date. You must submit a notification to the executive director stating whether final compliance has been achieved, postmarked within 10 business days after the final compliance date in Table 1 in §113.2357 of this title.</content><note type="source"><p>Source Note: The provisions of this §113.2301 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2302"><num value="113.2302">§113.2302</num><heading>What must I do if I close my other solid waste incineration unit and then restart it?</heading><content>(a) If you close your other solid waste incineration (OSWI) unit but will reopen it prior to the final compliance date in your state plan, you must meet the final compliance date specified in Table 1 in §113.2357 of this title (relating to Tables Relating to Division 5).(b) If you close your OSWI unit but will restart it after your final compliance date, you must complete emission control retrofit and meet the emission limitations on the date your OSWI unit restarts operation. You must conduct your initial performance test within 30 days of restarting your OSWI unit.</content><note type="source"><p>Source Note: The provisions of this §113.2302 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2303"><num value="113.2303">§113.2303</num><heading>What must I do if I plan to permanently close my other solid waste incineration unit and not restart it?</heading><content>You must close the unit before the final compliance date specified in Table 1 in §113.2357 of this title (relating to Tables Relating to Division 5).</content><note type="source"><p>Source Note: The provisions of this §113.2303 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2304"><num value="113.2304">§113.2304</num><heading>What is a waste management plan?</heading><content>A waste management plan is a written plan that identifies both the feasibility and the methods used to reduce or separate certain components of solid waste from the waste stream in order to reduce or eliminate toxic emissions from incinerated waste.</content><note type="source"><p>Source Note: The provisions of this §113.2304 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2305"><num value="113.2305">§113.2305</num><heading>When must I submit my waste management plan?</heading><content>You must submit a waste management plan no later than 60 days following the initial performance test as specified in Table 5 in §113.2357 of this title (relating to Tables Relating to Division 5). Section 113.2321 of this title (relating to By what date must I conduct the initial performance test?) specifies the date by which you are required to conduct your performance test.</content><note type="source"><p>Source Note: The provisions of this §113.2305 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2306"><num value="113.2306">§113.2306</num><heading>What should I include in my waste management plan?</heading><content>A waste management plan must include consideration of the reduction or separation of waste-stream elements such as paper, cardboard, plastics, glass, batteries, or metals; or the use of recyclable materials. The plan must identify any additional waste management measures and implement those measures the source considers practical and feasible, considering the effectiveness of waste management measures already in place, the costs of additional measures, the emissions reductions expected to be achieved, and any other environmental or energy impacts they might have.</content><note type="source"><p>Source Note: The provisions of this §113.2306 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2307"><num value="113.2307">§113.2307</num><heading>What are the operator training and qualification requirements?</heading><content>(a) No other solid waste incineration (OSWI) unit can be operated unless a fully trained and qualified OSWI unit operator is accessible, either at the facility or can be at the facility within 1 hour. The trained and qualified OSWI unit operator may operate the OSWI unit directly or be the direct supervisor of one or more other plant personnel who operate the unit. If all qualified OSWI unit operators are temporarily not accessible, you must follow the procedures in §113.2313 of this title (relating to What if all the qualified operators are temporarily not accessible?).(b) Operator training and qualification must be obtained through a state-approved program or by completing the requirements included in subsection (c) of this section.(c) Training must be obtained by completing an incinerator operator training course that includes, at a minimum, the three elements described in paragraphs (1) through (3) of this subsection.(1) Training on the 13 subjects listed in subparagraphs (A) through (M) of this paragraph.(A) Environmental concerns, including types of emissions.(B) Basic combustion principles, including products of combustion.(C) Operation of the specific type of incinerator to be used by the operator, including proper startup, waste charging, and shutdown procedures.(D) Combustion controls and monitoring.(E) Operation of air pollution control equipment and factors affecting performance (if applicable).(F) Inspection and maintenance of the incinerator and air pollution control devices.(G) Methods to monitor pollutants (including monitoring of incinerator and control device operating parameters) and monitoring equipment calibration procedures, where applicable.(H) Actions to correct malfunctions or conditions that may lead to malfunction.(I) Bottom and fly ash characteristics and handling procedures.(J) Applicable federal, state, and local regulations, including Occupational Safety and Health Administration workplace standards.(K) Pollution prevention.(L) Waste management practices.(M) Recordkeeping requirements.(2) An examination designed and administered by the instructor.(3) Written material covering the training course topics that may serve as reference material following completion of the course.</content><note type="source"><p>Source Note: The provisions of this §113.2307 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2308"><num value="113.2308">§113.2308</num><heading>When must the operator training course be completed?</heading><content>The operator training course must be completed by the latest of the three dates specified in paragraphs (1) through (3) of this section.(1) The final compliance date specified in Table 1 in §113.2357 of this title (relating to Tables Relating to Division 5).(2) Six months after your other solid waste incineration (OSWI) unit startup.(3) Six months after an employee assumes responsibility for operating the OSWI unit or assumes responsibility for supervising the operation of the OSWI unit.</content><note type="source"><p>Source Note: The provisions of this §113.2308 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2309"><num value="113.2309">§113.2309</num><heading>How do I obtain my operator qualification?</heading><content>(a) You must obtain operator qualification by completing a training course that satisfies the criteria under §113.2307(c) of this title (relating to What are the operator training and qualification requirements?).(b) Qualification is valid from the date on which the training course is completed and the operator successfully passes the examination required under §113.2307(c)(2) of this title.</content><note type="source"><p>Source Note: The provisions of this §113.2309 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2310"><num value="113.2310">§113.2310</num><heading>How do I maintain my operator qualification?</heading><content>To maintain qualification, you must complete an annual review or refresher course covering, at a minimum, the five topics described in paragraphs (1) through (5) of this section.(1) Update of regulations.(2) Incinerator operation, including startup and shutdown procedures, waste charging, and ash handling.(3) Inspection and maintenance.(4) Responses to malfunctions or conditions that may lead to malfunction.(5) Discussion of operating problems encountered by attendees.</content><note type="source"><p>Source Note: The provisions of this §113.2310 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2311"><num value="113.2311">§113.2311</num><heading>How do I renew my lapsed operator qualification?</heading><content>You must renew a lapsed operator qualification by one of the two methods specified in paragraphs (1) and (2) of this section.(1) For a lapse of less than 3 years, you must complete a standard annual refresher course described in §113.2310 of this title (relating to How do I maintain my operator qualification?).(2) For a lapse of 3 years or more, you must repeat the initial qualification requirements in §113.2309(a) of this title (relating to How do I obtain my operator qualification?).</content><note type="source"><p>Source Note: The provisions of this §113.2311 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2312"><num value="113.2312">§113.2312</num><heading>What site-specific documentation is required?</heading><content>(a) Documentation must be available at the facility and readily accessible for all other solid waste incineration (OSWI) unit operators that addresses the nine topics described in paragraphs (1) through (9) of this subsection. You must maintain this information and the training records required by subsection (c) of this section in a manner that they can be readily accessed and are suitable for inspection upon request.(1) Summary of the applicable standards under this division.(2) Procedures for receiving, handling, and charging waste.(3) Incinerator startup, shutdown, and malfunction procedures.(4) Procedures for maintaining proper combustion air supply levels.(5) Procedures for operating the incinerator and associated air pollution control systems within the standards established under this division.(6) Monitoring procedures for demonstrating compliance with the operating limits established under this division.(7) Reporting and recordkeeping procedures.(8) The waste management plan required under §§113.2304 through 113.2306 of this title (relating to What is a waste management plan? When must I submit my waste management plan? and What should I include in my waste management plan?).(9) Procedures for handling ash.(b) You must establish a program for reviewing the information listed in subsection (a) of this section with each incinerator operator.(1) The initial review of the information listed in subsection (a) of this section must be conducted by the latest of three dates specified in subparagraphs (A) through (C) of this paragraph.(A) The final compliance date specified in Table 1 in §113.2357 of this title (relating to Tables Relating to Division 5).(B) Six months after your OSWI unit startup.(C) Six months after an employee assumes responsibility for operating the OSWI unit or assumes responsibility for supervising the operation of the OSWI unit.(2) Subsequent annual reviews of the information listed in subsection (a) of this section must be conducted not later than 12 months following the previous review.(c) You must also maintain the information specified in paragraphs (1) through (3) of this subsection.(1) Records showing the names of OSWI unit operators who have completed review of the information in subsection (a) of this section as required by subsection (b) of this section, including the date of the initial review and all subsequent annual reviews.(2) Records showing the names of the OSWI unit operators who have completed the operator training requirements under §113.2307 of this title (relating to What are the operator training and qualification requirements?), met the criteria for qualification under §113.2309 of this title (relating to How do I obtain my operator qualification?), and maintained or renewed their qualification under §113.2310 or §113.2311 of this title (relating to How do I maintain my operator qualification? or How do I renew my lapsed operator qualification?). Records must include documentation of training, the dates of the initial and refresher training, and the dates of their qualification and all subsequent renewals of such qualifications.(3) For each qualified operator, the phone and/or pager number at which they can be reached during operating hours.</content><note type="source"><p>Source Note: The provisions of this §113.2312 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2313"><num value="113.2313">§113.2313</num><heading>What if all the qualified operators are temporarily not accessible?</heading><content>If all qualified operators are temporarily not accessible (i.e., not at the facility and not able to be at the facility within 1 hour), you must meet one of the three criteria specified in paragraphs (1) through (3) of this section, depending on the length of time that a qualified operator is not accessible.(1) When all qualified operators are not accessible for 12 hours or less, the other solid waste incineration (OSWI) unit may be operated by other plant personnel familiar with the operation of the OSWI unit who have completed review of the information specified in §113.2312(a) of this title (relating to What site-specific documentation is required?) within the past 12 months. You do not need to notify the executive director or include this as a deviation in your annual report.(2) When all qualified operators are not accessible for more than 12 hours, but less than 2 weeks, the OSWI unit may be operated by other plant personnel familiar with the operation of the OSWI unit who have completed a review of the information specified in §113.2312(a) of this title within the past 12 months. However, you must record the period when all qualified operators were not accessible and include this deviation in the annual report as specified under §113.2338 of this title (relating to What information must I include in my annual report?).(3) When all qualified operators are not accessible for 2 weeks or more, you must take the two actions that are described in subparagraphs (A) and (B) of this paragraph.(A) Notify the executive director of this deviation in writing within 10 days after the end of the 2-week period. In the notice, state what caused this deviation, what you are doing to ensure that a qualified operator is accessible, and when you anticipate that a qualified operator will be accessible.(B) Submit a status report to the executive director every 4 weeks outlining what you are doing to ensure that a qualified operator is accessible, stating when you anticipate that a qualified operator will be accessible, and requesting approval from the executive director to continue operation of the OSWI unit. You must submit the first status report 4 weeks after you notify the executive director of the deviation under subparagraph (A) of this paragraph. If the executive director notifies you that your request to continue operation of the OSWI unit is disapproved, the OSWI unit may continue operation for 90 days, then must cease operation. Operation of the unit may resume if you meet the two requirements in clauses (i) and (ii) of this subparagraph.(i) A qualified operator is accessible as required under §113.2307(a) of this title (relating to What are the operator training and qualification requirements?)(ii) You notify the executive director that a qualified operator is accessible and that you are resuming operation.</content><note type="source"><p>Source Note: The provisions of this §113.2313 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2314"><num value="113.2314">§113.2314</num><heading>What emission limitations must I meet and by when?</heading><content>You must meet the emission limitations specified in Table 2 in §113.2357 of this title (relating to Tables Relating to Division 5) on the date the initial performance test is required or completed (whichever is earlier). Section 113.2321 of this title (relating to By what date must I conduct the initial performance test?) specifies the date by which you are required to conduct your performance test.</content><note type="source"><p>Source Note: The provisions of this §113.2314 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2315"><num value="113.2315">§113.2315</num><heading>What operating limits must I meet and by when?</heading><content>(a) If you use a wet scrubber to comply with the emission limitations, you must establish operating limits for four operating parameters (as specified in Table 3 in §113.2357 of this title (relating to Tables Relating to Division 5)) as described in paragraphs (1) through (4) of this subsection during the initial performance test.(1) Maximum charge rate, calculated using one of the two different procedures in subparagraph (A) or (B) of this paragraph, as appropriate.(A) For continuous and intermittent units, maximum charge rate is the average charge rate measured during the most recent performance test demonstrating compliance with all applicable emission limitations.(B) For batch units, maximum charge rate is the charge rate measured during the most recent performance test demonstrating compliance with all applicable emission limitations.(2) Minimum pressure drop across the wet scrubber, which is calculated as the average pressure drop across the wet scrubber measured during the most recent performance test demonstrating compliance with the particulate matter emission limitations; or minimum amperage to the wet scrubber, which is calculated as the average amperage to the wet scrubber measured during the most recent performance test demonstrating compliance with the particulate matter emission limitations.(3) Minimum scrubber liquor flow rate, which is calculated as the average liquor flow rate at the inlet to the wet scrubber measured during the most recent performance test demonstrating compliance with all applicable emission limitations.(4) Minimum scrubber liquor pH, which is calculated as the average liquor pH at the inlet to the wet scrubber measured during the most recent performance test demonstrating compliance with the hydrogen chloride and sulfur dioxide emission limitations.(b) You must meet the operating limits established during the initial performance test beginning on the date 180 days after your final compliance date in Table 1 in §113.2357 of this title.</content><note type="source"><p>Source Note: The provisions of this §113.2315 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2316"><num value="113.2316">§113.2316</num><heading>What if I do not use a wet scrubber to comply with the emission limitations?</heading><content>If you use an air pollution control device other than a wet scrubber or limit emissions in some other manner to comply with the emission limitations under §113.2314 of this title (relating to What emission limitations must I meet and by when?), you must petition the United States Environmental Protection Agency (EPA) for specific operating limits, the values of which are to be established during the initial performance test and then continuously monitored thereafter. You must not conduct the initial performance test until after the petition has been approved by the EPA. Your petition must include the five items listed in paragraphs (1) through (5) of this section.(1) Identification of the specific parameters you propose to use as operating limits.(2) A discussion of the relationship between these parameters and emissions of regulated pollutants, identifying how emissions of regulated pollutants change with changes in these parameters, and how limits on these parameters will serve to limit emissions of regulated pollutants.(3) A discussion of how you will establish the upper and/or lower values for these parameters that will establish the operating limits on these parameters.(4) A discussion identifying the methods you will use to measure and the instruments you will use to monitor these parameters, as well as the relative accuracy and precision of these methods and instruments.(5) A discussion identifying the frequency and methods for recalibrating the instruments you will use for monitoring these parameters.</content><note type="source"><p>Source Note: The provisions of this §113.2316 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2317"><num value="113.2317">§113.2317</num><heading>What happens during periods of startup, shutdown, and malfunction?</heading><content>The emission limitations and operating limits apply at all times except during other solid waste incineration unit startups, shutdowns, or malfunctions, which must last no longer than 3 hours.</content><note type="source"><p>Source Note: The provisions of this §113.2317 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2318"><num value="113.2318">§113.2318</num><heading>How do I conduct the initial and annual performance test?</heading><content>(a) All performance tests must consist of a minimum of three test runs conducted under conditions representative of normal operations.(b) All performance tests must be conducted using the methods in Table 2 in §113.2357 of this title (relating to Tables Relating to Division 5).(c) All performance tests must be conducted using the minimum run duration specified in Table 2 in §113.2357 of this title.(d) Method 1 of 40 Code of Federal Regulations (CFR) Part 60, Appendix A must be used to select the sampling location and number of traverse points.(e) Method 3A or 3B of 40 CFR Part 60, Appendix A must be used for gas composition analysis, including measurement of oxygen concentration. Method 3A or 3B of 40 CFR Part 60, Appendix A must be used simultaneously with each method.(f) All pollutant concentrations, except for opacity, must be adjusted to 7 percent oxygen using equation 1 in §113.2356 of this title (relating to What equations must I use?).(g) Method 26A of 40 CFR Part 60, Appendix A must be used for hydrogen chloride concentration analysis, with the additional requirements specified in paragraphs (1) through (3) of this subsection.(1) The probe and filter must be conditioned prior to sampling using the procedure described in subparagraphs (A) through (C) of this paragraph.(A) Assemble the sampling train(s) and conduct a conditioning run by collecting between 14 liters per minute (0.5 cubic feet per minute) and 30 liters per minute (1.0 cubic feet per minute) of gas over a 1-hour period. Follow the sampling procedures outlined in section 8.1.5 of Method 26A of 40 CFR Part 60, Appendix A. For the conditioning run, water can be used as the impinger solution.(B) Remove the impingers from the sampling train and replace with a fresh impinger train for the sampling run, leaving the probe and filter (and cyclone, if used) in position. Do not recover the filter or rinse the probe before the first run. Thoroughly rinse the impingers used in the preconditioning run with deionized water and discard these rinses.(C) The probe and filter assembly are conditioned by the stack gas and are not recovered or cleaned until the end of testing.(2) For the duration of sampling, a temperature around the probe and filter (and cyclone, if used) between 120 degrees Celsius (248 degrees Fahrenheit) and 134 degrees Celsius (273 degrees Fahrenheit) must be maintained.(3) If water droplets are present in the sample gas stream, the requirements specified in subparagraphs (A) and (B) of this paragraph must be met.(A) The cyclone described in section 6.1.4 of Method 26A of 40 CFR Part 60, Appendix A must be used.(B) The post-test moisture removal procedure described in section 8.1.6 of Method 26A of 40 CFR Part 60, Appendix A must be used.</content><note type="source"><p>Source Note: The provisions of this §113.2318 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2319"><num value="113.2319">§113.2319</num><heading>How are the performance test data used?</heading><content>You use results of performance tests to demonstrate compliance with the emission limitations in Table 2 in §113.2357 of this title (relating to Tables Relating to Division 5).</content><note type="source"><p>Source Note: The provisions of this §113.2319 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2320"><num value="113.2320">§113.2320</num><heading>How do I demonstrate initial compliance with the emission limitations and establish the operating limits?</heading><content>You must conduct an initial performance test, as required under 40 Code of Federal Regulations §60.8, to determine compliance with the emission limitations in Table 2 in §113.2357 of this title (relating to Tables Relating to Division 5) and to establish operating limits using the procedure in §113.2315 or §113.2316 of this title (relating to What operating limits must I meet and by when? or What if I do not use a wet scrubber to comply with the emission limitations?). The initial performance test must be conducted using the test methods listed in Table 2 in §113.2357 of this title and the procedures in §113.2318 of this title (relating to How do I conduct the initial and annual performance test?).</content><note type="source"><p>Source Note: The provisions of this §113.2320 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2321"><num value="113.2321">§113.2321</num><heading>By what date must I conduct the initial performance test?</heading><content>The initial performance test must be conducted no later than 180 days after your final compliance date. Your final compliance date is specified in Table 1 in §113.2357 of this title (relating to Tables Relating to Division 5).</content><note type="source"><p>Source Note: The provisions of this §113.2321 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2322"><num value="113.2322">§113.2322</num><heading>How do I demonstrate continuous compliance with the emission limitations and the operating limits?</heading><content>(a) You must conduct an annual performance test for all of the pollutants in Table 2 in §113.2357 of this title (relating to Tables Relating to Division 5) for each other solid waste incineration unit to determine compliance with the emission limitations. The annual performance test must be conducted using the test methods listed in Table 2 in §113.2357 of this title and the procedures in §113.2318 of this title (relating to How do I conduct the initial and annual performance test?).(b) You must continuously monitor carbon monoxide emissions to determine compliance with the carbon monoxide emissions limitation. Twelve-hour rolling average values are used to determine compliance. A 12-hour rolling average value above the carbon monoxide emission limit in Table 2 in §113.2357 of this title constitutes a deviation from the emission limitation.(c) You must continuously monitor the operating parameters specified in §113.2315 of this title (relating to What operating limits must I meet and by when?) or established under §113.2316 of this title (relating to What if I do not use a wet scrubber to comply with the emission limitations?). Three-hour rolling average values are used to determine compliance with the operating limits unless a different averaging period is established under §113.2316 of this title. A 3-hour rolling average value (unless a different averaging period is established under §113.2316 of this title) above the established maximum or below the established minimum operating limits constitutes a deviation from the established operating limits. Operating limits do not apply during performance tests.</content><note type="source"><p>Source Note: The provisions of this §113.2322 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2323"><num value="113.2323">§113.2323</num><heading>By what date must I conduct the annual performance test?</heading><content>You must conduct annual performance tests within 12 months following the initial performance test. Conduct subsequent annual performance tests within 12 months following the previous one.</content><note type="source"><p>Source Note: The provisions of this §113.2323 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2324"><num value="113.2324">§113.2324</num><heading>May I conduct performance testing less often?</heading><content>(a) You can test less often for a given pollutant if you have test data for at least three consecutive annual tests, and all performance tests for the pollutant over that period show that you comply with the emission limitation. In this case, you do not have to conduct a performance test for that pollutant for the next 2 years. You must conduct a performance test during the 3rd year and no more than 36 months following the previous performance test.(b) If your other solid waste incineration unit continues to meet the emission limitation for the pollutant, you may choose to conduct performance tests for that pollutant every 3rd year, but each test must be within 36 months of the previous performance test.(c) If a performance test shows a deviation from an emission limitation for any pollutant, you must conduct annual performance tests for that pollutant until three consecutive annual performance tests for that pollutant all show compliance.</content><note type="source"><p>Source Note: The provisions of this §113.2324 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2325"><num value="113.2325">§113.2325</num><heading>May I conduct a repeat performance test to establish new operating limits?</heading><content>Yes, you may conduct a repeat performance test at any time to establish new values for the operating limits. The executive director may request a repeat performance test at any time.</content><note type="source"><p>Source Note: The provisions of this §113.2325 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2326"><num value="113.2326">§113.2326</num><heading>What continuous emission monitoring systems must I install?</heading><content>(a) You must install, calibrate, maintain, and operate continuous emission monitoring systems for carbon monoxide and for oxygen. You must monitor the oxygen concentration at each location where you monitor carbon monoxide.(b) You must install, evaluate, and operate each continuous emission monitoring system according to the "Monitoring Requirements" in 40 Code of Federal Regulations §60.13.</content><note type="source"><p>Source Note: The provisions of this §113.2326 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2327"><num value="113.2327">§113.2327</num><heading>How do I make sure my continuous emission monitoring systems are operating correctly?</heading><content>(a) Conduct initial, daily, quarterly, and annual evaluations of your continuous emission monitoring systems that measure carbon monoxide and oxygen.(b) Complete your initial evaluation of the continuous emission monitoring systems within 180 days after your final compliance date in Table 1 in §113.2357 of this title (relating to Tables Relating to Division 5).(c) For initial and annual evaluations, collect data concurrently (or within 30 to 60 minutes) using your carbon monoxide and oxygen continuous emission monitoring systems. To validate carbon monoxide concentration levels, use United States Environmental Protection Agency (EPA) Method 10, 10A, or 10B of 40 Code of Federal Regulations (CFR) Part 60, Appendix A. Use EPA Method 3 or 3A of 40 CFR Part 60, Appendix A to measure oxygen. Collect the data during each initial and annual evaluation of your continuous emission monitoring systems following the applicable performance specifications in 40 CFR Part 60, Appendix B. Table 4 in §113.2357 of this title shows the required span values and performance specifications that apply to each continuous emission monitoring system.(d) Follow the quality assurance procedures in Procedure 1 of 40 CFR Part 60, Appendix F for each continuous emission monitoring system. The procedures include daily calibration drift and quarterly accuracy determinations.</content><note type="source"><p>Source Note: The provisions of this §113.2327 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2328"><num value="113.2328">§113.2328</num><heading>What is my schedule for evaluating continuous emission monitoring systems?</heading><content>(a) Conduct annual evaluations of your continuous emission monitoring systems no more than 12 months after the previous evaluation was conducted.(b) Evaluate your continuous emission monitoring systems daily and quarterly as specified in 40 Code of Federal Regulations Part 60, Appendix F.</content><note type="source"><p>Source Note: The provisions of this §113.2328 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2329"><num value="113.2329">§113.2329</num><heading>What is the minimum amount of monitoring data I must collect with my continuous emission monitoring systems, and is the data collection requirement enforceable?</heading><content>(a) Where continuous emission monitoring systems are required, obtain 1-hour arithmetic averages. Make sure the averages for carbon monoxide are in parts per million by dry volume at 7 percent oxygen. Use the 1-hour averages of oxygen data from your continuous emission monitoring system to determine the actual oxygen level and to calculate emissions at 7 percent oxygen.(b) Obtain at least two data points per hour in order to calculate a valid 1-hour arithmetic average. Title 40 Code of Federal Regulations §60.13(e)(2) requires your continuous emission monitoring systems to complete at least one cycle of operation (sampling, analyzing, and data recording) for each 15-minute period.(c) Obtain valid 1-hour averages for at least 75 percent of the operating hours per day for at least 90 percent of the operating days per calendar quarter. An operating day is any day the unit combusts any municipal or institutional solid waste.(d) If you do not obtain the minimum data required in subsections (a) through (c) of this section, you have deviated from the data collection requirement regardless of the emission level monitored.(e) If you do not obtain the minimum data required in subsections (a) through (c) of this section, you must still use all valid data from the continuous emission monitoring systems in calculating emission concentrations.(f) If continuous emission monitoring systems are temporarily unavailable to meet the data collection requirements, refer to Table 4 in §113.2357 of this title (relating to Tables Relating to Division 5). It shows alternate methods for collecting data when systems malfunction or when repairs, calibration checks, or zero and span checks keep you from collecting the minimum amount of data.</content><note type="source"><p>Source Note: The provisions of this §113.2329 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2330"><num value="113.2330">§113.2330</num><heading>How do I convert my 1-hour arithmetic averages into the appropriate averaging times and units?</heading><content>(a) Use equation 1 in §113.2356 of this title (relating to What equations must I use?) to calculate emissions at 7 percent oxygen.(b) Use equation 2 in §113.2356 of this title to calculate the 12-hour rolling averages for concentrations of carbon monoxide.</content><note type="source"><p>Source Note: The provisions of this §113.2330 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2331"><num value="113.2331">§113.2331</num><heading>What operating parameter monitoring equipment must I install, and what operating parameters must I monitor?</heading><content>(a) If you are using a wet scrubber to comply with the emission limitations under §113.2314 of this title (relating to What emission limitations must I meet and by when?), you must install, calibrate (to manufacturers' specifications), maintain, and operate devices (or establish methods) for monitoring the value of the operating parameters used to determine compliance with the operating limits listed in Table 3 in §113.2357 of this title (relating to Tables Relating to Division 5). These devices (or methods) must measure and record the values for these operating parameters at the frequencies indicated in Table 3 in §113.2357 of this title at all times.(b) You must install, calibrate (to manufacturers' specifications), maintain, and operate a device or method for measuring the use of any stack that could be used to bypass the control device. The measurement must include the date, time, and duration of the use of the bypass stack.(c) If you are using a method or air pollution control device other than a wet scrubber to comply with the emission limitations under §113.2314 of this title, you must install, calibrate (to the manufacturers' specifications), maintain, and operate the equipment necessary to monitor compliance with the site-specific operating limits established using the procedures in §113.2316 of this title (relating to What if I do not use a wet scrubber to comply with the emission limitations?).</content><note type="source"><p>Source Note: The provisions of this §113.2331 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2332"><num value="113.2332">§113.2332</num><heading>Is there a minimum amount of operating parameter monitoring data I must obtain?</heading><content>(a) Except for monitor malfunctions, associated repairs, and required quality assurance or quality control activities (including, as applicable, calibration checks and required zero and span adjustments of the monitoring system), you must conduct all monitoring at all times the other solid waste incineration unit is operating.(b) You must obtain valid monitoring data for at least 75 percent of the operating hours per day for at least 90 percent of the operating days per calendar quarter. An operating day is any day the unit combusts any municipal or institutional solid waste.(c) If you do not obtain the minimum data required in subsections (a) and (b) of this section, you have deviated from the data collection requirement regardless of the operating parameter level monitored.(d) Do not use data recorded during monitor malfunctions, associated repairs, and required quality assurance or quality control activities for meeting the requirements of this division, including data averages and calculations. You must use all the data collected during all other periods in assessing compliance with the operating limits.</content><note type="source"><p>Source Note: The provisions of this §113.2332 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2333"><num value="113.2333">§113.2333</num><heading>What records must I keep?</heading><content>You must maintain the 14 items (as applicable) as specified in paragraphs (1) through (14) of this section for a period of at least 5 years.(1) Calendar date of each record.(2) Records of the data described in subparagraphs (A) through (H) of this paragraph.(A) The other solid waste incineration (OSWI) unit charge dates, times, weights, and hourly charge rates.(B) Liquor flow rate to the wet scrubber inlet every 15 minutes of operation, as applicable.(C) Pressure drop across the wet scrubber system every 15 minutes of operation or amperage to the wet scrubber every 15 minutes of operation, as applicable.(D) Liquor pH as introduced to the wet scrubber every 15 minutes of operation, as applicable.(E) For OSWI units that establish operating limits for controls other than wet scrubbers under §113.2316 of this title (relating to What if I do not use a wet scrubber to comply with the emission limitations?), you must maintain data collected for all operating parameters used to determine compliance with the operating limits.(F) All 1-hour average concentrations of carbon monoxide emissions.(G) All 12-hour rolling average values of carbon monoxide emissions and all 3-hour rolling average values of continuously monitored operating parameters.(H) Records of the dates, times, and durations of any bypass of the control device.(3) Identification of calendar dates and times for which continuous emission monitoring systems or monitoring systems used to monitor operating limits were inoperative, inactive, malfunctioning, or out of control (except for downtime associated with zero and span and other routine calibration checks). Identify the pollutant emissions or operating parameters not measured, the duration, reasons for not obtaining the data, and a description of corrective actions taken.(4) Identification of calendar dates, times, and durations of malfunctions, and a description of the malfunction and the corrective action taken.(5) Identification of calendar dates and times for which monitoring data show a deviation from the carbon monoxide emissions limit in Table 2 in §113.2357 of this title (relating to Tables Relating to Division 5) or a deviation from the operating limits in Table 3 in §113.2357 of this title or a deviation from other operating limits established under §113.2316 of this title with a description of the deviations, reasons for such deviations, and a description of corrective actions taken.(6) Calendar dates when continuous monitoring systems did not collect the minimum amount of data required under §113.2329 and §113.2332 of this title (relating to What is the minimum amount of monitoring data I must collect with my continuous emission monitoring systems, and is the data collection requirement enforceable? and Is there a minimum amount of operating parameter monitoring data I must obtain?).(7) For carbon monoxide continuous emissions monitoring systems, document the results of your daily drift tests and quarterly accuracy determinations according to Procedure 1 of 40 Code of Federal Regulations Part 60, Appendix F.(8) Records of the calibration of any monitoring devices required under §113.2331 of this title (relating to What operating parameter monitoring equipment must I install, and what operating parameters must I monitor?).(9) The results of the initial, annual, and any subsequent performance tests conducted to determine compliance with the emission limits and/or to establish operating limits, as applicable. Retain a copy of the complete test report including calculations and a description of the types of waste burned during the test.(10) Records showing the names of OSWI unit operators who have completed review of the information in §113.2312(a) of this title (relating to What site-specific documentation is required?) as required by §113.2312(b) of this title, including the date of the initial review and all subsequent annual reviews.(11) Records showing the names of the OSWI unit operators who have completed the operator training requirements under §113.2307 of this title (relating to What are the operator training and qualification requirements?), met the criteria for qualification under §113.2309 of this title (relating to How do I obtain my operator qualification?), and maintained or renewed their qualification under §113.2310 or §113.2311 of this title (relating to How do I maintain my operator qualification? or How do I renew my lapsed operator qualification?). Records must include documentation of training, the dates of the initial and refresher training, and the dates of their qualification and all subsequent renewals of such qualifications.(12) For each qualified operator, the phone and/or pager number at which they can be reached during operating hours.(13) Equipment vendor specifications and related operation and maintenance requirements for the incinerator, emission controls, and monitoring equipment.(14) The information listed in §113.2312(a) of this title.</content><note type="source"><p>Source Note: The provisions of this §113.2333 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2334"><num value="113.2334">§113.2334</num><heading>Where and in what format must I keep my records?</heading><content>(a) You must keep each record for a period of at least five years; on site for at least 2 years. You may keep the records off site for the remaining 3 years.(b) All records must be available in either paper copy or computer-readable format that can be printed upon request, unless an alternative format is approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §113.2334 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2335"><num value="113.2335">§113.2335</num><heading>What reports must I submit?</heading><content>See Table 5 in §113.2357 of this title (relating to Tables Relating to Division 5) for a summary of the reporting requirements.</content><note type="source"><p>Source Note: The provisions of this §113.2335 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2336"><num value="113.2336">§113.2336</num><heading>What information must I submit following my initial performance test?</heading><content>You must submit the information specified in paragraphs (1) through (3) of this section no later than 60 days following the initial performance test. All reports must be signed by the facilities manager.(1) The complete test report for the initial performance test results obtained under §113.2320 of this title (relating to How do I demonstrate initial compliance with the emission limitations and establish the operating limits?), as applicable.(2) The values for the site-specific operating limits established in §113.2315 or §113.2316 of this title (relating to What operating limits must I meet and by when? or What if I do not use a wet scrubber to comply with the emission limitations?).(3) The waste management plan, as specified in §§113.2304 through 113.2306 of this title (relating to What is a waste management plan? When must I submit my waste management plan? and What should I include in my waste management plan?).</content><note type="source"><p>Source Note: The provisions of this §113.2336 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2337"><num value="113.2337">§113.2337</num><heading>When must I submit my annual report?</heading><content>You must submit an annual report no later than 12 months following the submission of the information in §113.2336 of this title (relating to What information must I submit following my initial performance test?). You must submit subsequent reports no more than 12 months following the previous report.</content><note type="source"><p>Source Note: The provisions of this §113.2337 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2338"><num value="113.2338">§113.2338</num><heading>What information must I include in my annual report?</heading><content>The annual report required under §113.2337 of this title (relating to When must I submit my annual report?) must include the ten items listed in paragraphs (1) through (10) of this section. If you have a deviation from the operating limits or the emission limitations, you must also submit deviation reports as specified in §§113.2339 through 113.2341 of this title (relating to What else must I report if I have a deviation from the operating limits or the emission limitations?, What must I include in the deviation report?, and What else must I report if I have a deviation from the requirement to have a qualified operator accessible?).(1) Company name and address.(2) Statement by the owner or operator, with the name, title, and signature, certifying the truth, accuracy, and completeness of the report. Such certifications must also comply with the requirements of 40 Code of Federal Regulations §70.5(d).(3) Date of report and beginning and ending dates of the reporting period.(4) The values for the operating limits established pursuant to §113.2315 or §113.2316 of this title (relating to What operating limits must I meet and by when? or What if I do not use a wet scrubber to comply with the emission limitations?).(5) If no deviation from any emission limitation or operating limit that applies to you has been reported, a statement that there was no deviation from the emission limitations or operating limits during the reporting period, and that no monitoring system used to determine compliance with the emission limitations or operating limits was inoperative, inactive, malfunctioning, or out of control.(6) The highest recorded 12-hour average and the lowest recorded 12-hour average, as applicable, for carbon monoxide emissions and the highest recorded 3-hour average and the lowest recorded 3-hour average, as applicable, for each operating parameter recorded for the calendar year being reported.(7) Information recorded under §113.2333(2)(F) and (3) through (5) of this title (relating to What records must I keep?) for the calendar year being reported.(8) If a performance test was conducted during the reporting period, the results of that test.(9) If you met the requirements of §113.2324(a) or (b) of this title (relating to May I conduct performance testing less often?), and did not conduct a performance test during the reporting period, you must state that you met the requirements of §113.2324(a) or (b) of this title, and, therefore, you were not required to conduct a performance test during the reporting period.(10) Documentation of periods when all qualified other solid waste incineration unit operators were unavailable for more than 12 hours, but less than 2 weeks.</content><note type="source"><p>Source Note: The provisions of this §113.2338 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2339"><num value="113.2339">§113.2339</num><heading>What else must I report if I have a deviation from the operating limits or the emission limitations?</heading><content>(a) You must submit a deviation report if any recorded 3-hour average parameter level is above the maximum operating limit or below the minimum operating limit established under this division, if any recorded 12-hour average carbon monoxide emission rate is above the emission limitation, if the control device was bypassed, or if a performance test was conducted that showed a deviation from any emission limitation.(b) The deviation report must be submitted by August 1 of that year for data collected during the first half of the calendar year (January 1 to June 30), and by February 1 of the following year for data you collected during the second half of the calendar year (July 1 to December 31).</content><note type="source"><p>Source Note: The provisions of this §113.2339 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2340"><num value="113.2340">§113.2340</num><heading>What must I include in the deviation report?</heading><content>In each report required under §113.2339 of this title (relating to What else must I report if I have a deviation from the operating limits or the emission limitations?), for any pollutant or operating parameter that deviated from the emission limitations or operating limits specified in this division, include the seven items described in paragraphs (1) through (7) of this section.(1) The calendar dates and times your unit deviated from the emission limitations or operating limit requirements.(2) The averaged and recorded data for those dates.(3) Durations and causes of each deviation from the emission limitations or operating limits and your corrective actions.(4) A copy of the operating limit monitoring data during each deviation and any test report that documents the emission levels.(5) The dates, times, number, duration, and causes for monitor downtime incidents (other than downtime associated with zero, span, and other routine calibration checks).(6) Whether each deviation occurred during a period of startup, shutdown, or malfunction, or during another period.(7) The dates, times, and durations of any bypass of the control device.</content><note type="source"><p>Source Note: The provisions of this §113.2340 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2341"><num value="113.2341">§113.2341</num><heading>What else must I report if I have a deviation from the requirement to have a qualified operator accessible?</heading><content>(a) If all qualified operators are not accessible for 2 weeks or more, you must take the two actions in paragraphs (1) and (2) of this subsection.(1) Submit a notification of the deviation within 10 days after the end of the 2-week period that includes the three items in subparagraphs (A) through (C) of this paragraph.(A) A statement of what caused the deviation.(B) A description of what you are doing to ensure that a qualified operator is accessible.(C) The date when you anticipate that a qualified operator will be available.(2) Submit a status report to the executive director every 4 weeks that includes the three items in subparagraphs (A) through (C) of this paragraph.(A) A description of what you are doing to ensure that a qualified operator is accessible.(B) The date when you anticipate that a qualified operator will be accessible.(C) Request approval from the executive director to continue operation of the other solid waste incineration unit.(b) If your unit was shut down by the executive director, under the provisions of §113.2313(3)(B) of this title (relating to What if all the qualified operators are temporarily not accessible?), due to a failure to provide an accessible qualified operator, you must notify the executive director that you are resuming operation once a qualified operator is accessible.</content><note type="source"><p>Source Note: The provisions of this §113.2341 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2342"><num value="113.2342">§113.2342</num><heading>Are there any other notifications or reports that I must submit?</heading><content>Yes, you must submit notifications as provided by 40 Code of Federal Regulations §60.7.</content><note type="source"><p>Source Note: The provisions of this §113.2342 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2343"><num value="113.2343">§113.2343</num><heading>In what form can I submit my reports?</heading><content>Submit initial, annual, and deviation reports electronically or in paper format, postmarked on or before the submittal due dates.</content><note type="source"><p>Source Note: The provisions of this §113.2343 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2344"><num value="113.2344">§113.2344</num><heading>Can reporting dates be changed?</heading><content>If the executive director agrees, you may change the semiannual or annual reporting dates. See 40 Code of Federal Regulations §60.19(c) for procedures to seek approval to change your reporting date.</content><note type="source"><p>Source Note: The provisions of this §113.2344 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2345"><num value="113.2345">§113.2345</num><heading>Am I required to apply for and obtain a Title V operating permit for my unit?</heading><content>Yes, if you are subject to an applicable United States Environmental Protection Agency-approved and effective Federal Clean Air Act, §111(d)/129 state or tribal plan or an applicable and effective federal plan, you are required to apply for and obtain a Title V operating permit unless you meet the relevant requirements for an exemption specified in 40 Code of Federal Regulations §60.2993.</content><note type="source"><p>Source Note: The provisions of this §113.2345 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2346"><num value="113.2346">§113.2346</num><heading>When must I submit a Title V permit application for my existing unit?</heading><content>(a) If your existing unit is not subject to an earlier permit application deadline, a complete Title V permit application must be submitted on or before the earlier of the dates specified in paragraphs (1) through (3) of this subsection. (See the Federal Clean Air Act, §§129(e), 503(c), 503(d), and 502(a) and 40 Code of Federal Regulations (CFR) §70.5(a)(1)(i).)(1) 12 months after the effective date of any applicable United States Environmental Protection Agency (EPA)-approved Federal Clean Air Act, §111(d)/129 state or tribal plan.(2) 12 months after the effective date of any applicable federal plan.(3) December 16, 2008.(b) For any existing unit not subject to an earlier permit application deadline, the application deadline of 36 months after the promulgation of 40 CFR Part 60, Subpart FFFF, applies regardless of whether or when any applicable federal plan is effective, or whether or when any applicable Federal Clean Air Act, §111(d)/129 state or tribal plan is approved by the EPA and becomes effective.(c) If your existing unit is subject to Title V as a result of some triggering requirement(s) other than those specified in subsection (a) or (b) of this section (for example, a unit may be a major source or part of a major source), then your unit may be required to apply for a Title V permit prior to the deadlines specified in subsections (a) and (b). If more than one requirement triggers a source's obligation to apply for a Title V permit, the 12-month timeframe for filing a Title V permit application is triggered by the requirement which first causes the source to be subject to Title V. (See the Federal Clean Air Act, §503(c) and 40 CFR §70.3(a) and (b) and §70.5(a)(1)(i).)(d) A "complete" Title V permit application is one that has been determined or deemed complete by the relevant permitting authority under the Federal Clean Air Act, §503(d) and 40 CFR §70.5(a)(2). You must submit a complete permit application by the relevant application deadline in order to operate after this date in compliance with federal law. (See the Federal Clean Air Act, §503(d) and §502(a) and 40 CFR §70.7(b).)</content><note type="source"><p>Source Note: The provisions of this §113.2346 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2347"><num value="113.2347">§113.2347</num><heading>What are the requirements for temporary-use incinerators and air curtain incinerators used in disaster recovery?</heading><content>Your incinerator or air curtain incinerator is excluded from the requirements of this division if it is used on a temporary basis to combust debris from a disaster or emergency such as a tornado, hurricane, flood, ice storm, high winds, or act of bioterrorism. To qualify for this exclusion, the incinerator or air curtain incinerator must be used to combust debris in an area declared a State of Emergency by a local or state government, or the President, under the authority of the Stafford Act, has declared that an emergency or a major disaster exists in the area, and you must follow the requirements specified in paragraphs (1) through (3) of this section.(1) If the incinerator or air curtain incinerator is used during a period that begins on the date the unit started operation and lasts 8 weeks or less within the boundaries of the same emergency or disaster declaration area, then it is excluded from the requirements of this division. You do not need to notify the executive director of its use or meet the emission limitations or other requirements of this division.(2) If the incinerator or air curtain incinerator will be used during a period that begins on the date the unit started operation and lasts more than 8 weeks within the boundaries of the same emergency or disaster declaration area, you must notify the executive director that the temporary-use incinerator or air curtain incinerator will be used for more than 8 weeks and request permission to continue to operate the unit as specified in subparagraphs (A) and (B) of this paragraph.(A) The notification must be submitted in writing by the date 8 weeks after you start operation of the temporary-use incinerator or air curtain incinerator within the boundaries of the current emergency or disaster declaration area.(B) The notification must contain the date the incinerator or air curtain incinerator started operation within the boundaries of the current emergency or disaster declaration area, identification of the disaster or emergency for which the incinerator or air curtain incinerator is being used, a description of the types of materials being burned in the incinerator or air curtain incinerator, a brief description of the size and design of the unit (for example, an air curtain incinerator or a modular starved-air incinerator), the reasons the incinerator or air curtain incinerator must be operated for more than 8 weeks, and the amount of time for which you request permission to operate including the date you expect to cease operation of the unit.(3) If you submitted the notification containing the information in paragraph (2)(B) of this section by the date specified in paragraph (2)(A) of this section, you may continue to operate the incinerator or air curtain incinerator for another 8 weeks, which is a total of 16 weeks from the date the unit started operation within the boundaries of the current emergency or disaster declaration area. You do not have to meet the emission limitations or other requirements of this division during this period.(A) At the end of 16 weeks from the date the incinerator or air curtain incinerator started operation within the boundaries of the current emergency or disaster declaration area, you must cease operation of the unit or comply with all requirements of this division, unless the executive director has approved in writing your request to continue operation.(B) If the executive director has approved in writing your request to continue operation, then you may continue to operate the incinerator or air curtain incinerator within the boundaries of the current emergency or disaster declaration area until the date specified in the approval, and you do not need to comply with any other requirements of this division during the approved time period.</content><note type="source"><p>Source Note: The provisions of this §113.2347 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2348"><num value="113.2348">§113.2348</num><heading>What is an air curtain incinerator?</heading><content>(a) An air curtain incinerator operates by forcefully projecting a curtain of air across an open, integrated combustion chamber (fire box) or open pit or trench (trench burner) in which combustion occurs. For the purpose of this division only, air curtain incinerators include both firebox and trench burner units.(b) Air curtain incinerators that burn only the materials listed in paragraphs (1) through (4) of this subsection are required to meet only the requirements in this section and §§113.2349 through 113.2355 of this title (relating to When must I comply if my air curtain incinerator burns only wood waste, clean lumber, and yard waste?, What must I do if I close my air curtain incinerator that burns only wood waste, clean lumber, and yard waste and then restart it?, What must I do if I plan to permanently close my air curtain incinerator that burns only wood waste, clean lumber, and yard waste and not restart it?, What are the emission limitations for air curtain incinerators that burn only wood waste, clean lumber, and yard waste?, How must I monitor opacity for air curtain incinerators that burn only wood waste, clean lumber, and yard waste?, What are the recordkeeping and reporting requirements for air curtain incinerators that burn only wood waste, clean lumber, and yard waste?, and Am I required to apply for and obtain a Title V operating permit for my air curtain incinerator that burns only wood waste, clean lumber, and yard waste?) and are exempt from all other requirements of this division.(1) 100 percent wood waste.(2) 100 percent clean lumber.(3) 100 percent yard waste.(4) 100 percent mixture of only wood waste, clean lumber, and/or yard waste.</content><note type="source"><p>Source Note: The provisions of this §113.2348 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2349"><num value="113.2349">§113.2349</num><heading>When must I comply if my air curtain incinerator burns only wood waste, clean lumber, and yard waste?</heading><content>Table 1 in §113.2357 of this title (relating to Tables Relating to Division 5) specifies the final compliance date. You must submit a notification to the executive director postmarked within 10 business days after the final compliance date in Table 1 in §113.2357 of this title.</content><note type="source"><p>Source Note: The provisions of this §113.2349 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2350"><num value="113.2350">§113.2350</num><heading>What must I do if I close my air curtain incinerator that burns only wood waste, clean lumber, and yard waste and then restart it?</heading><content>(a) If you close your incinerator but will reopen it prior to the final compliance date in your state plan, you must meet the final compliance date specified in Table 1 in §113.2357 of this title (relating to Tables Relating to Division 5).(b) If you close your incinerator but will restart it after your final compliance date, you must meet the emission limitations on the date your incinerator restarts operation.</content><note type="source"><p>Source Note: The provisions of this §113.2350 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2351"><num value="113.2351">§113.2351</num><heading>What must I do if I plan to permanently close my air curtain incinerator that burns only wood waste, clean lumber, and yard waste and not restart it?</heading><content>You must close the unit before the final compliance date specified in Table 1 in §113.2357 of this title (relating to Tables Relating to Division 5).</content><note type="source"><p>Source Note: The provisions of this §113.2351 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2352"><num value="113.2352">§113.2352</num><heading>What are the emission limitations for air curtain incinerators that burn only wood waste, clean lumber, and yard waste?</heading><content>(a) Within 180 days after your final compliance date in Table 1 in §113.2357 of this title (relating to Tables Relating to Division 5), you must meet the two limitations specified in paragraphs (1) and (2) of this subsection.(1) The opacity limitation is 10 percent (6-minute average), except as described in paragraph (2) of this subsection.(2) The opacity limitation is 35 percent (6-minute average) during the startup period that is within the first 30 minutes of operation.(b) The limitations in subsection (a) of this section apply at all times except during malfunctions, which must last no longer than 3 hours.</content><note type="source"><p>Source Note: The provisions of this §113.2352 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2353"><num value="113.2353">§113.2353</num><heading>How must I monitor opacity for air curtain incinerators that burn only wood waste, clean lumber, and yard waste?</heading><content>(a) Use Method 9 of 40 Code of Federal Regulations (CFR) Part 60, Appendix A to determine compliance with the opacity limitation.(b) Conduct an initial test for opacity as specified in 40 CFR §60.8 within 180 days after the final compliance date in Table 1 in §113.2357 of this title (relating to Tables Relating to Division 5).(c) After the initial test for opacity, conduct annual tests no more than 12 months following the date of your previous test.(d) If the air curtain incinerator has been out of operation for more than 12 months following the date of your previous test, then you must conduct a test for opacity upon startup of the unit.</content><note type="source"><p>Source Note: The provisions of this §113.2353 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2354"><num value="113.2354">§113.2354</num><heading>What are the recordkeeping and reporting requirements for air curtain incinerators that burn only wood waste, clean lumber, and yard waste?</heading><content>(a) Keep records of results of all initial and annual opacity tests in either paper copy or computer-readable format that can be printed upon request, unless the executive director approves another format, for at least 5 years. You must keep each record on site for at least 2 years. You may keep the records off site for the remaining 3 years.(b) Make all records available for submittal to the executive director or for an inspector's review.(c) You must submit the results (each 6-minute average) of the initial opacity tests no later than 60 days following the initial test. Submit annual opacity test results within 12 months following the previous report.(d) Submit initial and annual opacity test reports as electronic or paper copy on or before the applicable submittal date.(e) Keep a copy of the initial and annual reports for a period of 5 years. You must keep each report on site for at least 2 years. You may keep the reports off site for the remaining 3 years.</content><note type="source"><p>Source Note: The provisions of this §113.2354 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2355"><num value="113.2355">§113.2355</num><heading>Am I required to apply for and obtain a Title V operating permit for my air curtain incinerator that burns only wood waste, clean lumber, and yard waste?</heading><content>Yes, if your air curtain incinerator is subject to this division, you are required to apply for and obtain a Title V operating permit as specified in §113.2345 and §113.2346 of this title (relating to Am I required to apply for and obtain a Title V operating permit for my unit? and When must I submit a Title V permit application for my existing unit?).</content><note type="source"><p>Source Note: The provisions of this §113.2355 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2356"><num value="113.2356">§113.2356</num><heading>What equations must I use?</heading><content>(a) Percent oxygen. Adjust all pollutant concentrations to 7 percent oxygen using equation 1 of this section. Attached Graphic(b) Capacity of a very small municipal waste combustion unit. For very small municipal waste combustion units that can operate continuously for 24-hour periods, calculate the unit capacity based on 24 hours of operation at the maximum charge rate. To determine the maximum charge rate, use one of two methods: (1) For very small municipal waste combustion units with a design based on heat input capacity, calculate the maximum charging rate based on the maximum heat input capacity and one of two heating values: (A) If your very small municipal waste combustion unit combusts refuse-derived fuel, use a heating value of 12,800 kilojoules per kilogram (5,500 British thermal units per pound). (B) If your very small municipal waste combustion unit combusts municipal solid waste, use a heating value of 10,500 kilojoules per kilogram (4,500 British thermal units per pound). (2) For very small municipal waste combustion units with a design not based on heat input capacity, use the maximum design charging rate. (c) Capacity of a batch very small municipal waste combustion unit. Calculate the capacity of a batch other solid waste incineration (OSWI) unit as the maximum design amount of municipal solid waste it can charge per batch multiplied by the maximum number of batches it can process in 24 hours. Calculate the maximum number of batches by dividing 24 by the number of hours needed to process one batch. Retain fractional batches in the calculation. For example, if one batch requires 16 hours, the OSWI unit can combust 24/16, or 1.5 batches, in 24 hours. (d) Carbon monoxide pollutant rate. When hourly average pollutant rates (Eh ) are obtained (e.g., continuous emission monitoring system values), compute the rolling average carbon monoxide pollutant rate (Ea ) for each 12-hour period using the following equation: Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §113.2356 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2357"><num value="113.2357">§113.2357</num><heading>Tables Relating to Division 5</heading><content>(a) Table 1 of this subsection specifies the compliance schedule for Division 5 of this subchapter. Attached Graphic(b) Table 2 of this subsection specifies the emission limitations for Division 5 of this subchapter. Attached Graphic(c) Table 3 of this subsection specifies the operating limits for incinerators and wet scrubbers for Division 5 of this subchapter. Attached Graphic(d) Table 4 of this subsection specifies the requirements for continuous emission monitoring systems for Division 5 of this subchapter. Attached Graphic(e) Table 5 of this subsection is a summary of the reporting requirements for Division 5 of this subchapter. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §113.2357 adopted to be effective May 14, 2009, 34 TexReg 2771.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2400"><num value="113.2400">§113.2400</num><heading>Applicability</heading><content>(a) The requirements of this division apply to existing municipal solid waste landfills (MSWLFs) for which construction, reconstruction, or modification was commenced on or before July 17, 2014, except for landfills exempted under §113.2406 of this title (relating to Exemptions, Alternate Emission Standards, and Alternate Compliance Schedules).(b) Physical or operational changes made to an existing MSWLF solely to comply with these emission guidelines are not considered a modification or reconstruction and would not subject an existing MSWLF to the requirements of a standard of performance for new MSWLFs (such as 40 Code of Federal Regulations (CFR) Part 60, Subpart XXX).(c) The requirements of this division do not apply to landfills which are subject to 40 CFR Part 60, Subpart XXX (Standards of Performance for Municipal Solid Waste Landfills that Commenced Construction, Reconstruction, or Modification after July 17, 2014).(d) The requirements of this division do not apply until the implementation date specified in §113.2412 of this title (relating to Implementation Date and Increments of Progress).</content><note type="source"><p>Source Note: The provisions of this §113.2400 adopted to be effective July 19, 2023, 48 TexReg 3913.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2402"><num value="113.2402">§113.2402</num><heading>Definitions</heading><content>(a) Except as provided in subsections (b) and (c) of this section, the terms used in this division are defined in 40 CFR §60.2 as amended through May 16, 2007, and 40 CFR §60.41f as amended through March 26, 2020, which are incorporated by reference.(b) The term "Administrator" wherever it appears in 40 CFR Part 60, §§60.30f - 60.41f, shall refer to the commission, except for purposes of 40 CFR §60.35f(a)(5). For purposes of 40 CFR §60.35f(a)(5), the term "Administrator" means the Administrator of the U.S. Environmental Protection Agency.(c) Legacy controlled landfill--any municipal solid waste landfill subject to this division that submitted a gas collection and control system (GCCS) design plan prior to May 21, 2021, in compliance with 40 CFR §60.752(b)(2)(i) or 30 TAC §113.2061 of this title (relating to Standards for Air Emissions), depending on which regulation was applicable to the landfill. This definition applies to those landfills that completed construction and began operations of the GCCS and those that are within the 30-month timeline for installation and start-up of a GCCS according to 40 CFR §60.752(b)(2)(ii), or the requirements of 30 TAC Chapter 113, Subchapter D, Division 1.(d) Reconstruction--the replacement of components of an existing MSWLF to such an extent that the fixed capital cost of the new components exceeds 50 percent of the fixed capital cost that would be required to construct a comparable entirely new MSWLF, and it is technologically and economically feasible to meet the applicable standards set forth in this division. Fixed capital cost means the capital needed to provide all the depreciable components.</content><note type="source"><p>Source Note: The provisions of this §113.2402 adopted to be effective July 19, 2023, 48 TexReg 3913.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2404"><num value="113.2404">§113.2404</num><heading>Standards for Existing Municipal Solid Waste Landfills</heading><content>(a) Except as specifically provided otherwise in §§113.2400 - 113.2412 of this title, an owner or operator of an existing municipal solid waste landfill (MSWLF) subject to the requirements of this division shall comply with the applicable provisions specified in 40 CFR Part 60, Subpart Cf, as follows:(1) 40 CFR §60.31f, relating to Designated Facilities, as amended through August 29, 2016;(2) 40 CFR §60.32f, relating to Compliance Times, as amended through August 29, 2016;(3) 40 CFR §60.33f, relating to Emission Guidelines for municipal solid waste landfill emissions, as amended through August 29, 2016;(4) 40 CFR §60.34f, relating to Operational Standards for collection and control systems, as amended through March 26, 2020;(5) 40 CFR §60.35f, relating to Test methods and procedures, as amended through August 29, 2016;(6) 40 CFR §60.36f, relating to Compliance provisions, as amended through March 26, 2020;(7) 40 CFR §60.37f, relating to Monitoring of operations, as amended through March 26, 2020;(8) 40 CFR §60.38f, relating to Reporting guidelines, as amended through March 26, 2020;(9) 40 CFR §60.39f, relating to Recordkeeping guidelines, as amended through March 26, 2020; and(10) 40 CFR §60.40f, relating to Specifications for active collection systems, as amended through August 29, 2016.(b) Gas collection and control systems approved by the commission and installed at an MSWLF in compliance with §115.152 of this title (relating to Control Requirements), satisfy the gas collection and control system design requirements of 40 CFR §60.33f(b) and (c) for purposes of this section.(c) Legacy controlled landfills or landfills in the closed landfill subcategory that have already installed control systems and completed initial or subsequent performance tests may comply with this division using the initial or most recent performance test conducted to comply with 40 CFR Part 60, Subpart WWW, or 30 TAC Chapter 113, Subchapter D, Division 1 of this title.(d) Legacy controlled landfills shall comply with the requirements of 40 CFR §62.16714(b)(1), as amended through May 21, 2021, in lieu of the requirements of 40 CFR §60.33f(b)(1).</content><note type="source"><p>Source Note: The provisions of this §113.2404 adopted to be effective July 19, 2023, 48 TexReg 3913.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2406"><num value="113.2406">§113.2406</num><heading>Exemptions, Alternate Emission Standards, and Alternate Compliance Schedules</heading><content>(a) A municipal solid waste landfill (MSWLF) meeting the following conditions is not subject to the requirements of this division, except for the requirements of subsection (d) of this section, as applicable:(1) The MSWLF has not accepted waste at any time since October 9, 1993; and(2) The MSWLF does not have additional design capacity available for future waste deposition, regardless of whether the MSWLF is currently open or closed.(b) A MSWLF may apply for less stringent emission standards or longer compliance schedules than those otherwise required by this division, provided that the owner or operator demonstrates to the executive director and EPA, the following:(1) unreasonable cost of control resulting from MSWLF age, location, or basic MSWLF design;(2) physical impossibility of installing necessary control equipment; or(3) other factors specific to the MSWLF that make application of a less stringent standard or final compliance time significantly more reasonable.(c) Owners or operators requesting alternate emission standards or compliance schedules under subsection (b) of this section shall submit requests and supporting documentation to the TCEQ Office of Air, Air Permits Division and provide a copy to the United States Environmental Protection Agency, Region 6.(d) Upon request from the executive director, the owner or operator of a MSWLF shall submit any additional information necessary to demonstrate eligibility for or compliance with exemptions under this section.</content><note type="source"><p>Source Note: The provisions of this §113.2406 adopted to be effective July 19, 2023, 48 TexReg 3913.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2408"><num value="113.2408">§113.2408</num><heading>Federal Operating Permit Requirements</heading><content>The owner or operator of an existing municipal solid waste landfill subject to the requirements of this division shall comply with the applicable requirements of 40 CFR §60.31f(c) and (d), and 30 TAC Chapter 122, Federal Operating Permits Program, relating to the requirement to obtain and maintain a federal operating permit.</content><note type="source"><p>Source Note: The provisions of this §113.2408 adopted to be effective July 19, 2023, 48 TexReg 3913.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2410"><num value="113.2410">§113.2410</num><heading>Initial and Annual Reporting, and Modified Reporting Requirements for Legacy Controlled Landfills</heading><content>(a) An owner or operator of a municipal solid waste landfill (MSWLF) subject to the requirements of this division shall comply with the following reporting requirements, except as otherwise specified for legacy controlled landfills in subsections (b) - (d) of this section.(1) The owner or operator shall submit the initial design capacity report in accordance with 40 CFR Part 60, §60.38f(a), to the executive director within 90 days from the implementation date specified in §113.2412 of this title (relating to Implementation Date and Increments of Progress). Owners or operators that have already submitted an initial design capacity report to EPA to satisfy 40 CFR §62.16724 are not required to submit the report again, unless specifically requested by the executive director. (2) An owner or operator of an MSWLF with a design capacity equal to or greater than 2.5 million megagrams and 2.5 million cubic meters and subject to the requirements of this division shall also submit the initial non-methane organic compound (NMOC) emission rate report in accordance with 40 CFR §60.38f(c) to the executive director within 90 days from the implementation date specified in §113.2412 of this title. Owners or operators that have already submitted an initial NMOC report to EPA to satisfy 40 CFR §62.16724 are not required to submit the report again, unless specifically requested by the executive director.(3) An owner or operator of an MSWLF subject to the requirements of this division shall comply with applicable requirements of 40 CFR §60.38f(d) and (e) concerning the submittal of a site-specific gas collection and control system design plan to the executive director. Owners or operators that have already submitted a design plan to EPA to satisfy 40 CFR §62.16724 are not required to submit the design plan again, unless specifically requested by the executive director.(4) Owners or operators of an MSWLF subject to the requirements of this division shall provide to the executive director an annual emission inventory report of landfill-generated non-methane organic compound (NMOC) emissions. This annual NMOC emission inventory report is not required for an MSWLF with a capacity less than 2.5 million megagrams by mass or 2.5 million cubic meters by volume or an MSWLF which is exempt from this division under the provisions of §113.2406(a). This annual NMOC emission inventory report is separate and distinct from any initial or annual NMOC emission rate reports required under 40 CFR §60.38f. (A) Annual NMOC emission inventory reports required under this paragraph shall include the landfill's uncontrolled and (if equipped with a control system) controlled NMOC emissions in megagrams per year (Mg/yr) for the preceding calendar year. For purposes of these annual emission inventory reports, NMOC emissions will be calculated using the procedures specified in the U.S. EPA's Compilation of Air Pollutant Emissions Factors (AP-42). Note that the use of AP-42 calculations for these annual NMOC emission inventory reports is different from the calculation method that is required for NMOC emission rate reports prepared for purposes of 40 CFR Part 60, Subpart Cf or 40 CFR Part 62, Subpart OOO.(B) Annual NMOC emission inventory reports required under this paragraph shall be submitted no later than March 31 of each year following the calendar reporting year. These reports shall be submitted using the method designated by the executive director.(5) This section only addresses certain specific reports for MSWLFs which are subject to this division. Owners or operators of an MSWLF subject to this division shall also comply with any additional reporting requirements specified in 40 CFR §60.38f or elsewhere in 40 CFR Part 60, Subpart Cf, except as otherwise specified for legacy controlled landfills in subsections (b) - (d) of this section.(b) Owners or operators of legacy controlled landfills are not required to submit the following reports, provided these reports were submitted under 40 CFR Part 60, Subpart WWW, or Chapter 113, §113.2061 (relating to Standard for Air Emissions), on or before June 21, 2021:(1) Initial design capacity report specified in 40 CFR §60.38f(a);(2) Initial or subsequent NMOC emission rate report specified in 40 CFR §60.38f(c);(3) Collection and control system design plan specified in 40 CFR §60.38f(d);(4) Initial annual report specified in 40 CFR §60.38f(h); and(5) Initial performance test report specified in 40 CFR §60.38(f)(i). (c) Owners or operators of legacy controlled landfills that have already submitted an annual report under 40 CFR Part 60, Subpart WWW, or Chapter 113, Division 1, of this title, are required to submit the annual report under this division no later than one year after the most recent annual report was submitted.(d) Owners or operators of legacy controlled landfills that demonstrate compliance with the emission control requirements of this division using a treatment system as defined in 40 CFR §60.41f must comply with 40 CFR §62.16724(d)(7) as amended through May 21, 2021.(e) Upon request, the owner or operator of a MSWLF subject to the requirements of this division shall submit any requested additional information necessary to document compliance to the executive director or applicable local air or waste pollution control programs with jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §113.2410 adopted to be effective July 19, 2023, 48 TexReg 3913.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scD/s113.2412"><num value="113.2412">§113.2412</num><heading>Implementation Date and Increments of Progress</heading><content>(a) Upon the effective date of United States Environmental Protection Agency (EPA) approval of the Texas §111(d) state plan for the implementation of 40 Code of Federal Regulations (CFR) Part 60, Subpart Cf (Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills), owners or operators of municipal solid waste landfills (MSWLFs) covered by the applicability provisions of §113.2400(a) of this title (relating to Applicability), must comply with the requirements of this division.(b) Owners or operators of an MSWLF subject to this division shall comply with all applicable increments of progress specified in 40 CFR Part 62, Subpart OOO, Table 1, as amended through May 21, 2021.</content><note type="source"><p>Source Note: The provisions of this §113.2412 adopted to be effective July 19, 2023, 48 TexReg 3913.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c113/scE"><num value="E">SUBCHAPTER E</num><heading>CONSOLIDATED FEDERAL AIR RULES (CAR): SYNTHETIC ORGANIC CHEMICAL MANUFACTURING INDUSTRY (SOCMI) {FCAA, §112, 40 CFR PART 65}</heading><section identifier="/us/state/tx/tac/t30/p1/c113/scE/s113.3000"><num value="113.3000">§113.3000</num><heading>General Provisions (40 CFR Part 65, Subpart A)</heading><content>The general provisions for the Consolidated Federal Air Rule as specified in 40 Code of Federal Regulations Part 65, Subpart A, are incorporated by reference as adopted December 14, 2000 (65 FR 78285).</content><note type="source"><p>Source Note: The provisions of this §113.3000 adopted to be effective October 20, 2002, 27 TexReg 9615.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scE/s113.3020"><num value="113.3020">§113.3020</num><heading>Storage Vessels (40 CFR Part 65, Subpart C)</heading><content>The storage vessels standards for the Consolidated Federal Air Rule as specified in 40 Code of Federal Regulations Part 65, Subpart C, are incorporated by reference as adopted December 14, 2000 (65 FR 78285).</content><note type="source"><p>Source Note: The provisions of this §113.3020 adopted to be effective October 20, 2002, 27 TexReg 9615.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scE/s113.3030"><num value="113.3030">§113.3030</num><heading>Process Vents (40 CFR Part 65, Subpart D)</heading><content>The process vents standards for the Consolidated Federal Air Rule as specified in 40 Code of Federal Regulations Part 65, Subpart D, are incorporated by reference as adopted December 14, 2000 (65 FR 78285).</content><note type="source"><p>Source Note: The provisions of this §113.3030 adopted to be effective October 20, 2002, 27 TexReg 9615.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scE/s113.3040"><num value="113.3040">§113.3040</num><heading>Transfer Racks (40 CFR Part 65, Subpart E)</heading><content>The transfer racks standards for the Consolidated Federal Air Rule as specified in 40 Code of Federal Regulations Part 65, Subpart E, are incorporated by reference as adopted December 14, 2000 (65 FR 78285).</content><note type="source"><p>Source Note: The provisions of this §113.3040 adopted to be effective October 20, 2002, 27 TexReg 9615.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scE/s113.3050"><num value="113.3050">§113.3050</num><heading>Equipment Leaks (40 CFR Part 65, Subpart F)</heading><content>The equipment leaks standards for the Consolidated Federal Air Rule as specified in 40 Code of Federal Regulations Part 65, Subpart F, are incorporated by reference as adopted December 14, 2000 (65 FR 78285).</content><note type="source"><p>Source Note: The provisions of this §113.3050 adopted to be effective October 20, 2002, 27 TexReg 9615.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c113/scE/s113.3060"><num value="113.3060">§113.3060</num><heading>Closed Vent Systems, Control Devices, and Routing to a Fuel Gas System or a Process (40 CFR Part 65, Subpart G)</heading><content>The closed vent systems, control devices, and routing to a fuel gas system or a process standards for the Consolidated Federal Air Rule as specified in 40 Code of Federal Regulations Part 65, Subpart G, are incorporated by reference as adopted December 14, 2000 (65 FR 78285).</content><note type="source"><p>Source Note: The provisions of this §113.3060 adopted to be effective October 20, 2002, 27 TexReg 9615.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c114"><num value="114">CHAPTER 114</num><heading>CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c114/scA"><num value="A">SUBCHAPTER A</num><heading>DEFINITIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c114/scA/s114.1"><num value="114.1">§114.1</num><heading>Definitions</heading><content>Unless specifically defined in Texas Health and Safety Code, Chapter 382, also known as the Texas Clean Air Act (TCAA), or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.(1) Dual-fuel vehicle--Any motor vehicle or motor vehicle engine engineered and designed to be operated on two different fuels, but not a mixture of the two.(2) Emergency vehicle--A vehicle defined as an authorized emergency vehicle according to Texas Transportation Code, §541.201(1). (3) Emissions--The emissions of oxides of nitrogen, volatile organic compounds, carbon monoxide, particulate, or any combination of these substances.(4) Gross vehicle weight rating--The value specified by the manufacturer as the maximum design loaded weight of a vehicle. This is the weight as expressed on the vehicle's registration and includes the weight the vehicle can carry or draw.(5) Law enforcement vehicle--Any vehicle controlled by a local government and primarily operated by a civilian or military police officer or sheriff, or by state highway patrols, or other similar law enforcement agencies, and used for the purpose of law enforcement activities including, but not limited to, chase, apprehension, surveillance, or patrol of people engaged in or potentially engaged in unlawful activities.(6) Single sticker transition date--The transition date of the single sticker system is the later of March 1, 2015, or the date that the Texas Department of Motor Vehicles (DMV) and the Texas Department of Public Safety (DPS) concurrently implement the single sticker system required by Texas Transportation Code, §502.047. (7) Texas Inspection and Maintenance State Implementation Plan--The portion of the Texas state implementation plan that includes the procedures and requirements of the vehicle emissions inspection and maintenance program as adopted by the commission and approved by the EPA. A copy of the Texas Inspection and Maintenance State Implementation Plan is available at the Texas Commission on Environmental Quality, 12100 Park 35 Circle, Austin, Texas, 78753; mailing address: P.O. Box 13087, MC 206, Austin, Texas 78711-3087.(8) Vehicle registration--Vehicle characteristics, corresponding owner information, and registration expiration date contained in the DMV registration system.(9) Vehicle registration insignia sticker--The sticker issued through the DMV or county tax assessor-collector for a vehicle compliant with the DMV regulations. The vehicle registration insignia sticker, a current valid vehicle inspection report (VIR), or other form of proof authorized by the DPS or the DMV will be used as proof of compliance with inspection and maintenance program requirements, the DMV's rules and regulations governing vehicle registration, and the DPS's rules and regulations governing inspections.</content><note type="source"><p>Source Note: The provisions of this §114.1 adopted to be effective December 1, 1997, 22 TexReg 11388; amended to be effective August 20, 1998, 23 TexReg 8441; amended to be effective July 21, 1999, 24 TexReg 5474; amended to be effective May 11, 2000, 25 TexReg 3996; amended to be effective October 7, 2004, 29 TexReg 9374; amended to be effective July 19, 2007, 32 TexReg 4400; amended to be effective March 6, 2014, 39 TexReg 1400; amended to be effective April 21, 2022, 47 TexReg 2013; amended to be effective December 21, 2023, 48 TexReg7574; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scA/s114.2"><num value="114.2">§114.2</num><heading>Inspection and Maintenance Definitions</heading><content>Unless specifically defined in Texas Health and Safety Code, Chapter 382, also known as the Texas Clean Air Act (TCAA), or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms that are defined by the TCAA, the following words and terms, when used in Subchapter C of this chapter (relating to Vehicle Inspection and Maintenance; Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program; and Early Action Compact Counties), have the following meanings, unless the context clearly indicates otherwise.(1) Motorist--A person or other entity responsible for the inspection, repair, and maintenance of a motor vehicle, which may include, but is not limited to, owners and lessees.(2) On-board diagnostic (OBD) system--The computer system installed in a vehicle by the manufacturer that monitors the performance of the vehicle emissions control equipment, fuel metering system, and ignition system for the purpose of detecting malfunction or deterioration in performance that would be expected to cause the vehicle not to meet emissions standards. All references to OBD should be interpreted to mean the second generation of this equipment, sometimes referred to as OBD II.(3) On-road test--Utilization of remote sensing technology to identify vehicles operating within the inspection and maintenance program areas that have a high probability of being high-emitters.(4) Out-of-cycle test--Required emissions test not associated with vehicle safety inspection testing cycle.(5) Primarily operated--Use of a motor vehicle greater than 60 calendar days per testing cycle in an affected county. Motorists shall comply with emissions requirements for such counties. It is presumed that a vehicle is primarily operated in the county in which it is registered.(6) Program area--County or counties in which the Texas Department of Public Safety, in coordination with the commission, administers the vehicle emissions inspection and maintenance program contained in the Texas Inspection and Maintenance State Implementation Plan. These program areas include:(A) the Dallas-Fort Worth program area, consisting of the following counties: Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant;(B) the El Paso program area, consisting of El Paso County;(C) the Houston-Galveston-Brazoria program area, consisting of Brazoria, Fort Bend, Galveston, Harris, and Montgomery Counties; and(D) the Bexar County program area, consisting of Bexar County.(7) Rental vehicle--A motor vehicle for which a rental certificate has been furnished as provided by Texas Tax Code, §152.061. (8) Retests--Successive vehicle emissions inspections following the failing of an initial test by a vehicle during a single testing cycle.(9) Testing cycle--The annual cycle commencing with the first vehicle registration expiration date for which a motor vehicle is subject to a vehicle emissions inspection.</content><note type="source"><p>Source Note: The provisions of this §114.2 adopted to be effective December 1, 1997, 22 TexReg 11388; amended to be effective May 11, 2000, 25 TexReg 4009; amended to be effective November 20, 2001, 26 TexReg 9386; amended to be effective October 7, 2004, 29 TexReg 9374; amended to be effective November 17, 2005, 30 TexReg 7478; amended to be effective December 13, 2010, 35 TexReg 10985; amended to be effective March 6, 2014, 39 TexReg 1400; amended to be effective May 21, 2015, 40 TexReg 2670; amended to be effective December 21, 2023, 48 TexReg 7574; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scA/s114.5"><num value="114.5">§114.5</num><heading>Transportation Planning Definitions</heading><content>Unless specifically defined in the TCAA or in the rules of the Texas Natural Resource Conservation Commission (commission), the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following words and terms, when used in Subchapter G of this chapter (relating to Transportation Planning), shall have the following meanings, unless the context clearly indicates otherwise:(1) Implementing agency - An entity, transportation provider, organization, agency, or individual responsible for the design, procurement of funds, construction, operation, maintenance, management, monitoring, and, in conjunction with the metropolitan planning organization, compliance with transportation control measures.(2) Metropolitan Planning Organization - As defined under the Intermodal Surface Transportation Efficiency Act, Title 23, §134.(3) Transportation Control Measure (TCM) - Any measure that is specifically identified and committed to in the applicable implementation plan that is either one of the types listed in §7408 of the Federal Clean Air Act, 42 United States Code, 1970, as amended, or any other measure for the purpose of reducing emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or congestion conditions. Notwithstanding the first sentence of this definition, vehicle technology-based, fuel-based, or maintenance-based measures which control the emissions from vehicles under fixed traffic conditions are not TCMs for the purposes of this section.</content><note type="source"><p>Source Note: The provisions of this §114.5 adopted to be effective December 1, 1997, 22 TexReg 11388; amended to be effective May 28, 2000, 25 TexReg 4578.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scA/s114.6"><num value="114.6">§114.6</num><heading>Low Emission Fuel Definitions</heading><content>Unless specifically defined in Texas Health and Safety Code, Chapter 382, also known as the Texas Clean Air Act (TCAA), or in the rules of the commission, the terms used in this subchapter have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms that are defined by TCAA, §3.2, and §101.1 of this title (relating to Definitions), the words and terms specified in this section, when used in Subchapter H of this chapter (relating to Low Emission Fuels), have the meanings as defined in this section, unless the context clearly indicates otherwise.(1) Additive--Any substance that is intentionally added to gasoline or diesel fuel for the purpose of producing a gasoline or diesel fuel in compliance with the requirements of Subchapter H of this chapter that is:(A) a registered additive with the United States Environmental Protection Agency (EPA) in accordance with 40 Code of Federal Regulations (CFR) Part 79 (relating to Registration of Fuels and Fuel Additives); or(B) exempted from the EPA registration requirements in accordance with 40 CFR Part 79.(2) Barrel--A unit of measure equal to 42 United States gallons.(3) Bulk plant--An intermediate gasoline or diesel fuel distribution facility where gasoline or diesel fuel is stored and then transported for delivery to a bulk purchaser/consumer or retail fuel dispensing facility.(4) Bulk purchaser/consumer--A person who purchases or otherwise obtains gasoline or diesel fuel in bulk and then dispenses it into the fuel tanks of motor vehicles owned or operated by the person.(5) Common carrier--A person engaged in the transportation of goods or products of another person for compensation and is available to the public for hire.(6) Diesel fuel--Any middle distillate fuel used in compression-ignition internal combustion engines that is commonly or commercially known, sold, or represented as:(A) Grade No. 1-D or Grade No. 2-D diesel fuel, in accordance with the active version of American Society for Testing and Materials (ASTM) D975 (Standard Specification for Diesel Fuel Oils); or(B) Marine Distillate fuel X (DMX), Marine Distillate fuel A (DMA), or Marine Gas Oil (MGO) diesel fuel in accordance with the active version of the International Organization for Standardization (ISO) 8217 Specifications of Marine Fuels.(7) Final blend--A distinct quantity of diesel fuel that is introduced into commerce as low emission diesel fuel (LED), without further process.(8) Further process--To perform any alteration to diesel fuel, including distillation, treating with hydrogen, blending, or addition of an additive, for the purpose of producing a diesel fuel in compliance with the requirements of Subchapter H, Division 2 of this chapter prior to the diesel fuel being introduced into commerce as LED.(9) Gasoline--Any fuel that is commonly or commercially known, sold, or represented as gasoline, in accordance with the active version of American Society for Testing and Materials (ASTM) D4814 (Standard Specification for Automotive Spark-Ignition Engine Fuel).(10) Import--The process by which gasoline or diesel fuel is transported into the State of Texas by any means or method whatsoever, including transport via pipeline, railway, truck, motor vehicle, barge, boat, or railway tank car.(11) Import facility--The stationary gasoline or diesel fuel transfer point wherein the importer takes delivery of imported gasoline or diesel fuel and from which imported gasoline or diesel fuel is transferred into the cargo tank truck, pipeline, or other delivery vessel from which the fuel will be delivered to a bulk plant, bulk purchaser/consumer, or retail fuel dispensing facility.(12) Importer--Any person, except a person acting as a common carrier, who imports gasoline or diesel fuel.(13) Low emission diesel fuel (LED)--Any diesel fuel that conforms to the requirements specified in §§114.312, 114.313, or 114.318 of this title (relating to Low Emission Diesel Standards; Designated Alternative Limits; or Alternative Emission Reduction Plan, respectively).(14) Motor vehicle--Any self-propelled device powered by a gasoline fueled spark-ignition internal combustion engine or a diesel fueled compression-ignition internal combustion engine in or by which a person or property is or may be transported, and is required to be registered under Texas Transportation Code, §502.040, excluding vehicles registered under Texas Transportation Code, §502.140.(15) Non-road equipment--Any device powered by a gasoline fueled spark-ignition internal combustion engine or a diesel fueled compression-ignition internal combustion engine that is not required to be registered under Texas Transportation Code, §502.040.(16) Produce--Perform the process to convert liquid compounds into gasoline or diesel fuel or to further process diesel fuel to create a final blend of LED.(17) Producer--Any person who owns, leases, operates, controls, or supervises a production facility that produces gasoline or diesel fuel.(18) Production facility--Any facility where gasoline or diesel fuel is produced or that manufactures liquid fuels by distilling petroleum.(19) Retail fuel dispensing outlet--Any establishment where gasoline and/or diesel fuel is sold or offered for sale for use in motor vehicles and/or non-road equipment, and the fuel is directly dispensed into the fuel tanks of the motor vehicles and/or non-road equipment using the fuel.(20) Supply--To provide or transfer gasoline or diesel fuel to a physically separate facility, vehicle, or transportation system.</content><note type="source"><p>Source Note: The provisions of this §114.6 adopted to be effective May 11, 2000, 25 TexReg 4030; amended to be effective January 18, 2001, 26 TexReg 328; amended to be effective March 31, 2005, 30 TexReg 1773; amended to be effective May 17, 2006, 31 TexReg 3881; amended to be effective June 14, 2007, 32 TexReg 3173; amended to be effective September 13, 2012, 37 TexReg 7181.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scA/s114.7"><num value="114.7">§114.7</num><heading>Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the commission, the terms used in this chapter have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, §§3.2, 101.1, and 114.1 of this title (relating to Definitions), the following words and terms, when used in Subchapter C, Division 2 of this chapter (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program) have the following meanings, unless the context clearly indicates otherwise.(1) Affected county--A county with a motor vehicle emissions inspection and maintenance program established under Texas Transportation Code, §548.301.(2) Car--A motor vehicle, other than a golf cart, truck or bus, designed or used primarily for the transportation of persons. A passenger van or sports utility vehicle may be considered a car under this section.(3) Commercial vehicle--A vehicle that is owned or leased in the regular course of business of a commercial or business entity.(4) Dealer--A person who regularly and actively buys, sells, or exchanges vehicles at an established and permanent location as defined under Texas Transportation Code, §503.001. The term includes a franchised motor vehicle dealer and an independent motor vehicle dealer.(5) Destroyed--Crushed, shredded, scrapped, or otherwise dismantled to render a vehicle, vehicle's engine, or emission control components permanently and irreversibly incapable of functioning as originally intended.(6) Dismantled--Extraction of parts, components, and accessories for use in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program or sold as used parts.(7) Electric vehicle--A motor vehicle that draws propulsion energy only from a rechargeable energy storage system.(8) Emissions control equipment--Relating to a motor vehicle that is subject to §114.50(a) of this title (relating to Vehicle Emissions Inspection Requirements). If the vehicle is so equipped, these include: exhaust gas recirculation system, power control module, catalytic converter, oxygen sensors, evaporative purge canister, positive crankcase ventilation valve, and gas cap.(9) Engine--The fuel-based mechanical power source of a motor vehicle that is subject to §114.50(a) of this title (relating to Vehicle Emissions Inspection Requirements), which includes the crankcase, cylinder block, and cylinder head(s) and their initial internal components, the oil pan and cylinder head valve covers, and the intake and exhaust manifolds.(10) Fleet vehicle--A motor vehicle operated as one of a group that consists of more than ten motor vehicles and that is owned and operated by a public or commercial entity or by a private entity other than a single household.(11) Hybrid vehicle--A motor vehicle that draws propulsion energy from both gasoline or conventional diesel fuel and a rechargeable energy storage system.(12) LIRAP--Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program.(13) LIRAP fee--The portion of the vehicle emissions inspection fee that is required to be remitted to the state at the time of annual vehicle registration, as authorized by Texas Health and Safety Code, §382.202, in counties participating in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program.(14) LIRAP fee termination date--The first day of the month for the month that the Texas Department of Motor Vehicles(DMV) issues registration notices without the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) fee, as defined in this section, in a participating county opting out of the LIRAP.(15) LIRAP opt-out effective date--The date upon which a county that was participating in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) becomes a non-participating county, which occurs when the grant contract between the county and the executive director, established in §114.64(a) of this title (relating to LIRAP Requirements), is ended, but no earlier than the LIRAP fee termination effective date.(16) Motor vehicle--A fully self-propelled vehicle having four wheels that has as its primary purpose the transport of a person, persons, or property on a public highway.(17) Natural gas vehicle--A motor vehicle that uses only compressed natural gas or liquefied natural gas as fuel.(18) Non-participating county--An affected county that has either:(A) not opted into the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) authorized by Texas Health and Safety Code, §382.209; or(B) opted out of the LIRAP according to the procedures specified in §114.64(g) of this title (relating to LIRAP Requirements) and has been released from all program requirements, including assessment of the LIRAP fee as defined in this section and participation in LIRAP grant programs.(19) Participating county--An affected county in which the commissioners court by resolution has chosen to implement a Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) authorized by Texas Health and Safety Code, §382.209. An affected county that is in the process of opting out of the LIRAP is considered a participating county until the LIRAP opt-out effective date as defined in this section.(20) Proof of sale--A notice of sale or transfer filed with the DMV as required under Texas Transportation Code, §503.005, or if unavailable, an affidavit from the selling dealer or documents approved by the commission.(21) Proof of transfer--A TCEQ form that identifies the vehicle to be destroyed and tracks the transfer of the vehicle to the recycler from the participating county, dealer, and dismantler.(22) Qualifying motor vehicle--A motor vehicle that meets the requirements for replacement in §114.64 of this title (relating to LIRAP Requirements).(23) Recognized emissions repair facility--An automotive repair facility as provided in 37 Texas Administrative Code §23.51 (relating to Vehicle Emissions Inspection Requirements).(24) Recycled--Conversion of metal or other material into raw material products that have prepared grades; an existing or potential economic value; and using these raw material products in the production of new products.(25) Replacement vehicle--A vehicle that is in a class or category of vehicles that has been certified to meet federal Tier 2, Bin 5 or cleaner Bin certification under 40 Code of Federal Regulations §86.1811-04 or federal Tier 3, Bin 160 or cleaner Bin certification under 40 Code of Federal Regulations (CFR) §86.1811-17; has a gross vehicle weight rating of less than 10,000 pounds; have an odometer reading of not more than 70,000 miles; the total cost does not exceed $35,000 and up to $45,000 for hybrid, electric, or natural gas vehicles, or vehicles certified as Tier 2, Bin 3 or cleaner Bin certification under 40 CFR §86.1811-04 or federal Tier 3, Bin 85 or cleaner Bin certification under 40 CFR §86.1811-17; and has passed a Texas Department of Public Safety motor vehicle emissions inspection within the 15-month period before the application is submitted.(26) Retrofit--To equip, or the equipping of, an engine or an exhaust or fuel system with new, emissions-reducing parts or equipment designed to reduce air emissions and improve air quality, after the manufacture of the original engine or exhaust or fuel system, so long as the parts or equipment allow the vehicle to meet or exceed state and federal air emissions reduction standards.(27) Retrofit equipment--Emissions-reducing equipment designed to reduce air emissions and improve air quality that is approved by the United States Environmental Protection Agency and is installed after the manufacture of the original engine, exhaust, or fuel system.(28) Total cost--The total amount of money paid or to be paid for the purchase of a motor vehicle as set forth as the sales price in the form entitled "Application for Texas Certificate of Title" promulgated by the DMV. In a transaction that does not involve the use of that form, the term means an amount of money that is equivalent, or substantially equivalent, to the amount that would appear as the sales price on the application for Texas Certificate of Title if that form were used.(29) Truck--A motor vehicle having a gross vehicle weight rating of less than 10,000 pounds and designed primarily for the transport of persons and cargo.(30) Vehicle--A motor vehicle subject to §114.50(a) of this title (relating to Vehicle Emissions Inspection Requirements).(31) Vehicle owner--For the purposes of repair assistance or retrofit, the person who holds the Certificate of Title for the vehicle and/or the operator who is granted possession and is authorized to make repairs under a lease or purchase agreement; and for the purposes of accelerated retirement, the person who holds the Certificate of Title for the vehicle.(32) Vehicle retirement facility--A facility that, at a minimum, is licensed, certified, or otherwise authorized by the DMV to destroy, recycle, or dismantle vehicles.</content><note type="source"><p>Source Note: The provisions of this §114.7 adopted to be effective April 18, 2002, 27 TexReg 3194; amended to be effective December 27, 2007, 32 TexReg 9711; amended to be effective July 5, 2012, 37 TexReg 4941; amended to be effective May 21, 2015, 40 TexReg 2670; amended to be effective March 9, 2017, 42 TexReg 1029; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c114/scB"><num value="B">SUBCHAPTER B</num><heading>MOTOR VEHICLE ANTI-TAMPERING REQUIREMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c114/scB/s114.20"><num value="114.20">§114.20</num><heading>Maintenance and Operation of Air Pollution Control Systems or Devices Used to Control Emissions from Motor Vehicles</heading><content>(a) Any person owning or operating any motor vehicle or motor vehicle engine on which is installed or incorporated a system or device used to control emissions from the motor vehicle in compliance with federal motor vehicle rules shall maintain the system or device in good operable condition and shall use it at all times that the motor vehicle or motor vehicle engine is operated.(b) No person may remove or make inoperable any system or device used to control emissions from a motor vehicle or motor vehicle engine or any part thereof, except where the purpose of removal of the system or device, or part thereof, is to install another system or device, or part thereof, which is equally effective in reducing emissions from the vehicle. Acceptable removal and/or installation practices include:(1) Replacement of the engine of a vehicle if:(A) the design of the replacement engine has received prior approval of the EPA;(B) the design of the replacement engine is compatible with the vehicle chassis such that all applicable pollution control systems and devices are properly installed and operable; and(C) the resulting vehicle is identical, with regard to all emission-related parts and emission-related engine design parameters and calibrations, to the same or a newer model year vehicle, as originally equipped.(2) Replacement of a catalytic converter on a vehicle if:(A) the replacement catalyst is an original equipment manufacturer's catalyst or an aftermarket catalyst accepted by EPA; and(B) conformance with subparagraph (A) of this paragraph is documented during the inspection of the vehicle, or upon request.(3) Installation of conversion equipment to allow the use of an approved alternative fuel, if the conversion kit components are recognized by the Texas Railroad Commission as complying with applicable safety requirements.(4) Replacement or installation of any other system or device if:(A) the system or device can be demonstrated to be at least as effective in reducing emissions as the original equipment; and(B) conformance with subparagraph (A) of this paragraph is documented, upon request.(c) No person may sell, offer for sale, lease, or offer to lease in the State of Texas any motor vehicle unless all of the following conditions are met:(1) The motor vehicle shall be equipped with either the control systems or devices that were originally a part of the motor vehicle or motor vehicle engine or an alternate control system or device as designated in subsection (b) of this section.(2) The control systems or devices required in paragraph (1) of this subsection shall be in good operable condition.(3) A notice of the prohibition and requirements of this subsection shall be displayed at all commercial motor vehicle sales facilities, vehicle consignment lots, and other businesses in Texas which sell, offer for sale, lease, or offer to lease more than three used vehicles per year. The notice shall be displayed in a conspicuous and prominent location near each customer entrance way and in each sales or lease office. The notice shall read, "State law prohibits any person from selling, offering for sale, leasing, or offering to lease any vehicle not equipped with all emission control systems or devices in good operable condition. Violators are subject to penalties under the TCAA of up to $25,000 per violation." This notice shall be no smaller than 8 inches by 10 inches (20.32 cm by 25.4 cm) and shall be clearly visible to all customers.(d) Any part or component of an air pollution control system or device of a motor vehicle or motor vehicle engine equipped with such air pollution control system or device in compliance with federal motor vehicle rules shall not be replaced with a different part or component unless such part or component is designated as a replacement for the specific make and model of the vehicle or vehicle engine.(e) No person may sell, offer for sale, or use any system or device which circumvents or alters any system, device, engine, or any part thereof, installed by a vehicle manufacturer to comply with the Federal Motor Vehicle Control Program during actual in-use operation of a motor vehicle on Texas roadways. A notice of the prohibitions and requirements of this subsection shall be displayed at all motor vehicle parts, supply, repair, alternative fuel conversion, or other vehicle service facilities in Texas which sell, offer for sale, install, or offer to install any vehicle emission control, exhaust system or device, aftermarket alternative fuel conversion, or engine. The notice shall be displayed in a prominent and conspicuous location near each consumer entrance way and service counter. The notice shall read: "State law prohibits any person from selling, offering for sale, or using any system or device for the purpose of circumventing the emission control device on a vehicle or vehicle engine. State law also prohibits any person from removing or disconnecting any part of the emission control system of a motor vehicle, except to install replacement parts which are equally effective in reducing emissions. Violators are subject to penalties under the TCAA of up to $25,000 per violation." This notice shall be no smaller than 8 by 10 inches (20.32 cm by 25.4 cm) and shall be clearly visible to all customers.</content><note type="source"><p>Source Note: The provisions of this §114.20 adopted to be effective December 1, 1997, 22 TexReg 11388.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scB/s114.21"><num value="114.21">§114.21</num><heading>Exemptions</heading><content>(a) The following exemptions apply to specified motor vehicles or motor vehicle engines.(1) Motor vehicles or motor vehicle engines which are intended solely or primarily for legally sanctioned motor competitions, for research and development uses, or for instruction in a bona fide vocational training program where the use of a system or device would be detrimental to the purpose for which the vehicle or engine is intended to be used are exempt from the provisions of §114.20(a), (b), and (d) of this title (relating to Maintenance and Operation of Air Pollution Control Systems or Devices Used to Control Emissions from Motor Vehicles).(2) Motor vehicles or motor vehicle engines intended solely or primarily for research and development uses, or for instruction in a bona fide vocational training program where the introduction of leaded gasoline or the circumvention of an emission control system or device is necessary for the intended purposes of the program are exempt from the provisions of §114.20(e) of this title.(b) Vehicles belonging to members of the United States Department of Defense (DoD) participating in the DoD Privately Owned Vehicle Import Control Program or other persons being transferred to a foreign country are exempt from the provisions of §114.20(a), (b), and (d) of this title if the following conditions are met.(1) Only the catalytic converter, oxygen sensor, and/or the fuel filler inlet restrictor are removed from the vehicle.(2) The vehicle is delivered to the appropriate port for overseas shipment within 30 days after the emission control device(s) is removed.(3) If the vehicle is returned to the United States, all systems or devices used to control emissions from the vehicle are restored to good operable condition within 30 days of pick-up of the vehicle from the appropriate port of importation.(4) Documentation must be kept with the vehicle at all times while the vehicle is operated in Texas that provides sufficient information to demonstrate compliance with all appropriate qualifications and conditions of this exemption, including the following:(A) the unique vehicle identification number (VIN) of the subject vehicle;(B) the agency, company, or organization that employs the owner of the subject vehicle;(C) the country to which the owner of the subject vehicle is being transferred;(D) the dates when applicable alterations were performed on the subject vehicle;(E) the date when the subject vehicle is scheduled to be delivered to the appropriate port for shipment out of the United States; and(F) the date when the subject vehicle is picked up from the port of importation upon returning to the United States.(c) Motor vehicles are exempt from the provisions of §114.20(a), (b), and (d) of this title if the following conditions apply:(1) the motor vehicles are registered as farm vehicles with the Vehicle Titles and Registration Division of the Texas Department of Motor Vehicles, are intended solely or primarily for use on a farm or ranch, and their air pollution control devices or systems were removed or made inoperable prior to June 1, 2000; or(2) the motor vehicles were granted an exemption from the provisions of §114.20(a) and (b) of this title by the commission or its predecessor agency prior to June 1, 2000.(A) A copy of the exemption must be kept with the vehicle at all times and available for inspection by representatives of the commission, the Texas Department of Public Safety (DPS), or any other law enforcement agency upon request. The approved exclusion must also be presented to the certified vehicle inspector before each annual vehicle safety inspection of the vehicle as administered by the DPS.(B) The exemption must be void and all pollution control systems and devices replaced on the vehicle and/or engine covered by the exclusion when the vehicle changes ownership or is no longer used for the purpose identified in the exclusion application. The executive director shall be informed in writing prior to the change of ownership or usage.(d) The following vehicle transactions involving a "dealer" as defined in Texas Transportation Code, §503.001, are exempt from the requirements of §114.20(c) of this title:(1) sales or transfers from one dealer to another; and(2) sales, transfers, or trade-ins from an individual to a dealer.(e) Federal, state, and local agencies or their agents that sell abandoned, confiscated, or seized vehicles and any commercial vehicle auction facilities are exempt from the provisions of §114.20(c) of this title if the following conditions are met.(1) Before the single sticker transition date as defined in §114.1 of this title (relating to Definitions), the DPS motor vehicle safety inspection certificates must be removed from the vehicle and destroyed before the vehicle may be offered for sale or displayed for public examination. Beginning on the single sticker transition date, the Texas Department of Motor Vehicles (DMV) vehicle registration insignia sticker must be removed from the vehicle and destroyed before the vehicle may be offered for sale or displayed for public examination.(2) All potential buyers of the vehicle must be informed that deficiencies may be present in the vehicle pollution control systems on the vehicle. The buyer must also be informed of the liabilities to the buyer under §114.20 of this title and §114.50 of this title (relating to Vehicle Emissions Inspection Requirements) of operating the vehicle prior to the adequate restoration of all pollution control systems or devices on the vehicle as originally equipped. The seller of the vehicle shall provide to the buyer a written acknowledgment of the receipt of this information which must be signed by the buyer prior to completion of the sales transaction. The seller shall retain a copy of this signed acknowledgment for two years and shall make it available, upon request.(f) Before the single sticker transition date as defined in §114.1 of this title, the owner of a motor vehicle that has been totally disabled by accident, age, or malfunction and will no longer be operated is exempt from the provisions of §114.20(c) of this title if the DPS motor vehicle safety inspection certificate is removed and destroyed before the vehicle is offered for sale or displayed for public examination. Beginning on the single sticker transition date, the owner of a motor vehicle that has been totally disabled by accident, age, or malfunction and will no longer be operated is exempt from the provisions of §114.20(c) of this title if the DMV vehicle registration insignia sticker is removed and destroyed before the vehicle is offered for sale or displayed for public examination.</content><note type="source"><p>Source Note: The provisions of this §114.21 adopted to be effective December 1, 1997, 22 TexReg 11388; amended to be effective April 27, 2000, 25 TexReg 3533; amended to be effective May 22, 2003, 28 TexReg 3972; amended to be effective March 6, 2014, 39 TexReg 1400.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c114/scC"><num value="C">SUBCHAPTER C</num><heading>VEHICLE INSPECTION AND MAINTENANCE; LOW INCOME VEHICLE REPAIR ASSISTANCE, RETROFIT, AND ACCELERATED VEHICLE RETIREMENT PROGRAM; AND EARLY ACTION COMPACT COUNTIES</heading><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.50"><num value="114.50">§114.50</num><heading>Vehicle Emissions Inspection Requirements</heading><content>(a) Applicability. The requirements of this section and those contained in the Texas Inspection and Maintenance (I/M) State Implementation Plan (SIP) must be applied to all gasoline-powered motor vehicles 2 - 24 years old and subject to an annual emissions inspection, with the exception of rental vehicles as defined in §114.2 of this title (relating to Inspection and Maintenance Definitions) which are subject to an annual emissions inspection at 3 - 24 years old. Military tactical vehicles, motorcycles, diesel-powered vehicles, dual-fueled vehicles that cannot operate using gasoline, and antique vehicles registered with the Texas Department of Motor Vehicles are excluded from the program. Inspection facilities and inspectors certified by the Texas Department of Public Safety (DPS) must inspect all subject vehicles in the following program areas as defined in §114.2 of this title in accordance with the following schedule.(1) All 1996 and newer model year vehicles registered and primarily operated in the Dallas-Fort Worth (DFW) program area, the Houston-Galveston-Brazoria (HGB) program area, or El Paso County equipped with on-board diagnostic (OBD) systems must be tested using United States Environmental Protection Agency (EPA)-approved OBD test procedures. (2) This paragraph applies to all vehicles registered and primarily operated in the Bexar County program area.(A) Beginning November 1, 2026, all 2 - 24 year old subject vehicles equipped with OBD systems must be tested using EPA-approved OBD test procedures.(B) Beginning November 1, 2026, all vehicle emissions inspection stations in the Bexar County program area must offer the OBD test.(b) Control requirements.(1) No person or entity may operate, or allow the operation of, a motor vehicle registered in the DFW, HGB, El Paso, and Bexar County program areas that does not comply with:(A) All applicable air pollution emissions control-related requirements included in the annual vehicle inspection requirements administered by the DPS, as evidenced by a current valid vehicle registration insignia sticker, a current valid vehicle inspection report (VIR), or other form of proof authorized by the DPS or the DMV; and(B) the vehicle emissions I/M requirements contained in this subchapter.(2) Any motorist in the DFW, HGB, El Paso, or Bexar County program areas who has received a notice from an emissions inspection station that there are recall items unresolved on his or her motor vehicle should furnish proof of compliance with the recall notice prior to the next vehicle emissions inspection, such as a written statement from the dealer or leasing agency indicating that emissions repairs have been completed.(3) A motorist whose vehicle has failed an emissions test may request a challenge retest through the DPS. If the retest is conducted within 15 days of the initial inspection, the retest is free.(4) A motorist whose vehicle has failed an emissions test and has not requested a challenge retest or whose vehicle has failed a challenge retest shall have emissions-related repairs performed and submit a properly completed vehicle repair form (VRF) in order to receive a retest. In order to receive a waiver or time extension, the motorist shall submit a VRF or applicable documentation as deemed necessary by the DPS.(5) A motorist whose vehicle is registered in the DFW, HGB, El Paso, or Bexar County program areas or in any county adjacent to a program area and whose vehicle has failed an on-road test administered by the DPS shall:(A) submit the vehicle for an out-of-cycle vehicle emissions inspection within 30 days of written notice by the DPS; and(B) satisfy all inspection, extension, or waiver requirements of the vehicle emissions I/M program specified in 37 TAC Chapter 23, Subchapter E (relating to Vehicle Emissions Inspection and Maintenance Program).(6) A subject vehicle registered in a county without an I/M program that meets the applicability criteria of subsection (a) of this section and the ownership of which has changed through a retail sale as defined by Texas Occupations Code, §2301.002, is not eligible for title receipt or registration in a county with an I/M program unless proof is presented that the vehicle has passed an approved vehicle emissions inspection within 90 days before the title transfer. The evidence of proof required may be in the form of the VIR or another proof of the program compliance as authorized by the DPS. All 1996 and newer model year vehicles with less than 50,000 miles are exempt from the test-on-resale requirements of this paragraph.(7) State, governmental, and quasi-governmental agencies that fall outside the normal registration or inspection process must comply with all vehicle emissions I/M requirements for vehicles primarily operated in I/M program areas.(c) Waivers and extensions. A motorist may apply to the DPS for a waiver or an extension as specified in 37 TAC Chapter 23, Subchapter E, which defers the need for full compliance with vehicle emissions standards for a specified period of time after failing a vehicle emissions inspection.(d) Prohibitions.(1) No person may issue or allow the issuance of a VIR, as authorized by the DPS unless the vehicle emissions I/M requirements are completely and properly performed in accordance with the rules and regulations adopted by the DPS and the commission. Prior to taking any enforcement action regarding this provision, the commission must consult with the DPS.(2) No person may allow or participate in the preparation, duplication, sale, distribution, or use of false, counterfeit, or stolen vehicle registration insignia stickers, VIRs, VRFs, vehicle emissions repair documentation, or other documents that may be used to circumvent applicable vehicle emissions I/M requirements and to commit an offense specified in Texas Transportation Code, §548.603 (concerning Fictitious or Counterfeit Inspection Certificate or Insurance Document).(3) No organization, business, person, or other entity may represent itself as an emissions inspector certified by the DPS unless such certification has been issued under the certification requirements and procedures contained in Texas Transportation Code, §§548.401 - 548.404.(4) No person may act as or offer to perform services as a Recognized Emissions Repair Technician of Texas, as designated by the DPS, without first obtaining and maintaining DPS recognition.</content><note type="source"><p>Source Note: The provisions of this §114.50 adopted to be effective December 1, 1997, 22 TexReg 11388; amended to be effective May 11, 2000, 25 TexReg 4009; amended to be effective January 18, 2001, 26 TexReg 361; amended to be effective November 20, 2001, 26 TexReg 9386; amended to be effective December 26, 2002, 27 TexReg 11996; amended to be effective October 30, 2003, 28 TexReg 9283; amended to be effective October 7, 2004, 29 TexReg9374; amended to be effective November 17, 2005, 30 TexReg 7478; amended to be effective March 6, 2014, 39 TexReg 1400; amended to be effective April 21, 2022, 47 TexReg 2013; amended to be effective December 21, 2023, 48 TexReg 7574; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.51"><num value="114.51">§114.51</num><heading>Equipment Evaluation Procedures for Vehicle Exhaust Gas Analyzers</heading><content>(a) Any manufacturer or distributor of vehicle testing equipment may apply to the executive director of the commission or his appointee, for approval of an exhaust gas analyzer or analyzer system for use in the Texas Inspection and Maintenance (I/M) program administered by the Texas Department of Public Safety. Each manufacturer shall submit a formal certificate to the commission stating that any analyzer model sold or leased by the manufacturer or its authorized representative and any model currently in use in the I/M program will satisfy all design and performance criteria set forth in the most recent version of the "Specifications for Vehicle Exhaust Gas Analyzer Systems for Use in the Texas Vehicle Emissions Testing Program." Copies of this document are available at the commission's Central Office, located at 12100 Park 35 Circle, Austin, Texas 78753 or at https://www.tceq.texas.gov/downloads/air-quality/mobile-source/txvehanlspecs.pdf. The manufacturer shall also provide sufficient documentation to demonstrate conformance with these criteria including a complete description of all hardware components, the results of appropriate performance testing, and a point-by-point response to each specific requirement.(b) All equipment must be tested by an independent test laboratory. The cost of the certification must be absorbed by the manufacturer. The conformance demonstration must include, but is not limited to:(1) certification that equipment design and construction conform with the specifications referenced in subsection (a) of this section;(2) documentation of successful results from appropriate performance testing;(3) evidence of necessary changes to internal computer programming, display format, and data recording sequence;(4) a commitment to fulfill all maintenance, repair, training, and other service requirements described in the specifications referenced in subsection (a) of this section. A copy of the minimum warranty agreement to be offered to the purchaser of an approved vehicle exhaust gas analyzer must be included in the demonstration of conformance; and(5) documentation of communication ability using protocol provided by the commission or the commission Texas Information Management System (TIMS) contractor.(c) If a review of the demonstration of conformance and all related support material indicates compliance with the criteria listed in subsections (a) and (b) of this section, the executive director or his appointee may issue a notice of approval to the analyzer manufacturer that endorses the use of the specified analyzer or analyzer system in the Texas I/M program.(d) The applicant shall comply with all special provisions and conditions specified by the executive director or his appointee in the notice of approval.(e) Any manufacturer or distributor that receives a notice of approval from the executive director or the executive director's appointee for vehicle emissions test equipment for use in the Texas I/M program may be subject to appropriate enforcement action and penalties prescribed in the Texas Clean Air Act or the rules and regulations promulgated thereunder if:(1) any information included in the conformance demonstration as required in subsection (b) of this section is misrepresented resulting in the purchase or operation of equipment in the Texas I/M program that does not meet the specifications referenced in subsection (a) of this section;(2) the applicant fails to comply with any requirement or commitment specified in the notice of approval issued by the executive director or implied by the representations submitted by the applicant in the conformance demonstration required by subsection (b) of this section;(3) the manufacturer or distributor fails to provide on-site service response by a qualified repair technician within two business days of a request from an inspection station, excluding Sundays, national holidays (New Year's Day, Martin Luther King Jr. Day, President's Day, Memorial Day, Independence Day, Labor Day, Veteran's Day, Thanksgiving Day, and Christmas Day), and other days when a purchaser's business might be closed;(4) the manufacturer or distributor fails to fulfill, on a continuing basis, the requirements described in this section or in the specifications referenced in subsection (a) of this section; or(5) the manufacturer fails to provide analyzer software updates within six months of request and fails to install analyzer updates within 90 days of commission written notice of acceptance.</content><note type="source"><p>Source Note: The provisions of this §114.51 adopted to be effective December 1, 1997, 22 TexReg 11388; amended to be effective May 11, 2000, 25 TexReg 4009; amended to be effective January 18, 2001, 26 TexReg 361; amended to be effective November 20, 2001, 26 TexReg 9386; amended to be effective November 17, 2005, 30 TexReg 7478; amended to be effective December 13, 2010, 35 TexReg 10985; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.53"><num value="114.53">§114.53</num><heading>Inspection and Maintenance Fees</heading><content>(a) The following fees must be paid for an emissions inspection of a vehicle at an inspection station. This fee must include one free retest should the vehicle fail the emissions inspection provided that the motorist has the retest performed at the same station where the vehicle originally failed and submits, prior to the retest, a properly completed vehicle repair form showing that emissions-related repairs were performed and the retest is conducted within 15 days of the initial emissions test.(1) Any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(1) of this title (relating to Vehicle Emissions Inspection Requirements) in El Paso County must collect a fee not to exceed $11.50, and any emissions inspection station required to conduct an emissions test in accordance with §114.50(a)(1) of this title in the Dallas-Fort Worth and Houston-Galveston-Brazoria program areas must collect a fee not to exceed $18.50. (2) In the Bexar County program area beginning November 1, 2026, any emissions inspection station in Bexar County required to conduct an emissions test in accordance with §114.50(a)(2)(A) or (B) of this title must collect a fee not to exceed $18.50.(b) The per-vehicle fee and the amount the inspection station remits to the DPS for a challenge test at an inspection station designated by the Texas Department of Public Safety (DPS), must be the same as the amounts set forth in subsection (a) of this section. The challenge fee must not be charged if the vehicle is retested within 15 days of the initial test.(c) Inspection stations performing out-of-cycle vehicle emissions inspections for the state's remote sensing element must charge a motorist for an out-of-cycle emissions inspection in the amount specified in subsection (a) of this section resulting from written notification that subject vehicle failed on-road testing. If the vehicle passes the vehicle emissions inspection, the vehicle owner may request reimbursement from the DPS.(d) Vehicle owners shall remit as part of the annual vehicle registration fee collected by the Texas Department of Motor Vehicles (DMV) or county tax assessor-collector the amount of the vehicle emissions inspection fee that is required to be remitted to the state.(1) In El Paso County, the following requirements apply.(A) If participating in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP), vehicle owners shall remit $4.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee. Of the $4.50 remitted, $2.00 constitutes the LIRAP fee as defined in §114.7 of this title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions).(B) If participating in the LIRAP and in the process of opting out, vehicle owners shall remit $4.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee until the LIRAP fee termination effective date as defined in §114.7 of this title. Of the $4.50 remitted, $2.00 constitutes the LIRAP fee as defined in §114.7 of this title. Upon the LIRAP fee termination effective date, vehicle owners shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.(C) If not participating in the LIRAP, vehicle owners shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.(2) In the Dallas-Fort Worth program area, the following requirements apply.(A) Vehicle owners in counties participating in the LIRAP shall remit $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee. Of the $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 of this title.(B) Vehicle owners in counties participating in the LIRAP that are in the process of opting out shall remit $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee until the LIRAP fee termination effective date as defined in §114.7 of this title. Of the $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 of this title. Upon the LIRAP fee termination effective date, vehicle owners in participating counties that are in the process of opting out of the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.(C) Vehicle owners in counties not participating in the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.(3) In the Houston-Galveston-Brazoria program area, the following requirements apply.(A) Vehicle owners in counties participating in the LIRAP shall remit $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee. Of the $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 of this title.(B) Vehicle owners in counties participating in the LIRAP that are in the process of opting out shall remit $8.50 for motor vehicles subject to OBD tests to the DMV or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee until the LIRAP fee termination effective date as defined in §114.7 of this title. Of the $8.50 remitted for OBD tests, $6.00 constitutes the LIRAP fee as defined in §114.7 of this title. Upon the LIRAP fee termination effective date, vehicle owners in participating counties that are in the process of opting out of the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.(C) Vehicle owners in counties not participating in the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.(4) In the Bexar County program area, vehicle owners shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.</content><note type="source"><p>Source Note: The provisions of this §114.53 adopted to be effective December 1, 1997, 22 TexReg 11388; amended to be effective May 11, 2000, 25 TexReg 4009; amended to be effective January 18, 2001, 26 TexReg 361; amended to be effective November 20, 2001, 26 TexReg 9386; amended to be effective October 30, 2003, 28 TexReg 9283; amended to be effective October 7, 2004, 29 TexReg 9374; amended to be effective November 17, 2005, 30 TexReg 7478; amendedto be effective March 6, 2014, 39 TexReg 1400; amended to be effective May 21, 2015, 40 TexReg 2670; amended to be effective December 21, 2023, 48 TexReg 7574; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.60"><num value="114.60">§114.60</num><heading>Applicability for LIRAP</heading><content>(a) The provisions of §114.7 of this title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions) and Division 2 of this subchapter (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program) provide the minimum requirements for county implementation of a Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) and apply to counties that implement a vehicle emissions inspection program and have elected to implement LIRAP provisions.(b) To be eligible for assistance under this division, vehicles must be subject to §114.50(a) of this title (relating to Vehicle Emissions Inspection Requirements).(c) LIRAP does not apply to a vehicle that is a:(1) fleet vehicle;(2) commercial vehicle;(3) vehicle owned or leased by a governmental entity;(4) vehicle registered as a classic motor vehicle, custom vehicle, or street rod under Texas Transportation Code, §504.501; (5) vehicle registered as an exhibition vehicle, including antique or military vehicles, under Texas Transportation Code, §504.502; (6) vehicle not regularly used for transportation during the normal course of daily activities; or(7) vehicle subject to §114.50(a) of this title that is registered in a non-participating county.(d) A participating county must ensure that owners of vehicles under subsection (c) of this section do not receive monetary or compensatory assistance under LIRAP.</content><note type="source"><p>Source Note: The provisions of this §114.60 adopted to be effective April 18, 2002, 27 TexReg 3194; amended to be effective May 21, 2015, 40 TexReg 2670; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.62"><num value="114.62">§114.62</num><heading>LIRAP Funding</heading><content>(a) The executive director shall provide funding for the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) with available funds from fees collected under §114.53 of this title (relating to Inspection and Maintenance Fees) or other designated and available funds from participating counties.(b) The program shall be administered in accordance with Texas Government Code, Chapter 783. Programmatic costs may include call-center management, application oversight, invoice analysis, education, outreach, and advertising.(c) A participating county shall receive, to the extent practicable, funds appropriated for the program in reasonable proportion to the amount in fees collected in the participating county or area from emissions testing fees designated by the commission.(d) In a county with a vehicle emissions inspection and maintenance program under Texas Health and Safety Code, §382.202 or §382.302, not more than 10 percent of the money provided for LIRAP may be used for administration of the program.</content><note type="source"><p>Source Note: The provisions of this §114.62 adopted to be effective April 18, 2002, 27 TexReg 3194; amended to be effective May 4, 2006, 31 TexReg 3575; amended to be effective December 27, 2007, 32 TexReg 9711; amended to be effective May 21, 2015, 40 TexReg 2670.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.64"><num value="114.64">§114.64</num><heading>LIRAP Requirements</heading><content>(a) Implementation. Participation in the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) is voluntary. An affected county may choose to participate in the program at its discretion. Upon receiving a written request to participate in the LIRAP by a county commissioner's court, the executive director shall authorize the implementation of a LIRAP in the requesting county. The executive director and county shall enter into a grant contract for the implementation of the LIRAP.(1) The grant contract must provide conditions, requirements, and projected funding allowances for the implementation of the LIRAP.(2) A participating county may contract with an entity approved by the executive director for services necessary to implement the LIRAP. A participating county or its designated entity shall demonstrate to the executive director that, at a minimum, the county or its designated entity has provided for appropriate measures for determining applicant eligibility and repair effectiveness and ensuring against fraud.(3) The participating county shall remain the contracted entity even if the county contracts with another county or another entity approved by the executive director to administer the LIRAP.(b) Repair and retrofit assistance. A LIRAP must provide for monetary or other compensatory assistance to eligible vehicle owners for repairs directly related to bringing certain vehicles that have failed a required emissions test into compliance with emissions requirements or for installing retrofit equipment on vehicles that have failed a required emissions test, if practically and economically feasible, in lieu of or in combination with repairs performed to bring a vehicle into compliance with emissions requirements. Vehicles under the LIRAP must be repaired or retrofitted at a recognized emissions repair facility. To determine eligibility, the participating county or its designated entity shall make applications available for LIRAP participants. The application, at a minimum, must require the vehicle owner to demonstrate that:(1) the vehicle has failed a required emissions test within 30 days of application submittal;(2) the vehicle can be driven under its own power to the emissions inspection station or vehicle retirement facility;(3) the vehicle is currently registered in and has been registered in the participating program county for at least 12 of the 15 months immediately preceding the application for assistance;(4) the vehicle owner's net family income is at or below 300% of the federal poverty level; and(5) any other requirements of the participating county or the executive director are met.(c) Accelerated vehicle retirement. A LIRAP must provide monetary or other compensatory assistance to eligible vehicle owners to be used toward the purchase of a replacement vehicle.(1) To determine eligibility, the participating county or its designated entity shall make applications available for LIRAP participants. The application, at a minimum, must require the vehicle owner to demonstrate that the vehicle meets the requirements under subsection (b)(1) - (5) of this section.(2) Notwithstanding the vehicle requirement provided under subsection (b)(1) of this section, an eligible vehicle owner of a vehicle that is gasoline powered and is at least 10 years old as determined from the current calendar year (i.e., 2010 minus 10 years equals 2000) and meets the requirements under subsection (b)(2), (3), and (4) of this section, may be eligible for accelerated vehicle retirement and compensation.(3) Replacement vehicles must:(A) be in a class or category of vehicles that has been certified to meet federal Tier 2, Bin 5 or cleaner Bin certification under 40 Code of Federal Regulations (CFR) §86.1811-04 or federal Tier 3, Bin 160 or cleaner Bin certification under 40 CFR §86.1811-17; (B) have a gross vehicle weight rating of less than 10,000 pounds;(C) have an odometer reading of not more than 70,000 miles;(D) be a vehicle, the total cost of which does not exceed $35,000 or up to $45,000 for hybrid, electric, or natural gas vehicles, or vehicles certified as Tier 2, Bin 3 or cleaner Bin certification under 40 CFR §86.1811-04 or federal Tier 3, Bin 85 or cleaner Bin certification under 40 CFR §86.1811-17; and(E) have passed an emissions inspection within the 15-month period before the application is submitted.(d) Compensation. The participating county shall determine eligibility and approve or deny the application promptly. If the requirements of subsection (b) or (c) of this section are met and based on available funding, the county shall authorize monetary or other compensations to the eligible vehicle owner.(1) Compensations must be:(A) no more than $600 and no less than $30 per vehicle annually to be used for emission-related repairs or retrofits performed at recognized emissions repair facilities, including diagnostics tests performed on the vehicle; or(B) based on vehicle type and model year of a replacement vehicle for the accelerated retirement of a vehicle meeting the requirements under this subsection. Only one retirement compensation can be used toward one replacement vehicle annually per applicant. The maximum amount toward a replacement vehicle must not exceed:(i) $3,000 for a replacement car of the current model year or previous three model years, except as provided by clause (iii) of this subparagraph;(ii) $3,000 for a replacement truck of the current model year or the previous two model years, except as provided by clause (iii) of this subparagraph; and(iii) $3,500 for a replacement hybrid, electric, natural gas, and federal Tier 2, Bin 3 or cleaner Bin certification under 40 CFR §86.1811-04 or federal Tier 3, Bin 85 or cleaner Bin certification under 40 CFR §86.1811-17 vehicle of the current model year or the three previous model years.(2) Vehicle owners shall be responsible for paying the first $30 of emission-related repairs or retrofit costs that may include diagnostics tests performed on the vehicle.(3) For accelerated vehicle retirement, provided that the compensation levels in paragraph (1)(B) of this subsection are met and minimum eligibility requirements under subsection (c) of this section are met, a participating county may set a specific level of compensation or implement a level of compensation schedule that allows flexibility. The following criteria may be used for determining the amount of financial assistance:(A) model year of the vehicle;(B) miles registered on the vehicle's odometer;(C) fair market value of the vehicle;(D) estimated cost of emission-related repairs necessary to bring the vehicle into compliance with emission standards;(E) amount of money the vehicle owner has already spent to bring the vehicle into compliance, excluding the cost of the vehicle emissions inspection; and(F) vehicle owner's income.(e) Reimbursement for repairs and retrofits. A participating county shall reimburse the appropriate recognized emissions repair facility for approved repairs and retrofits within 30 calendar days of receiving an invoice that meets the requirements of the county or designated entity. Repaired or retrofitted vehicles must pass an emissions inspection before the recognized emissions repair facility is reimbursed. In the event that the vehicle does not pass the emissions retest after diagnosed repairs are performed, the participating county has the discretion, on a case-by-case basis, to make payment for diagnosed emissions repair work performed.(f) Reimbursements for replacements. A participating county shall ensure that funds are transferred to a participating dealer no later than 10 business days after the county receives proof of the sale, proof of transfer to a dismantler, and any administrative documents that meet the requirements of the county or designated entity. A list of all administrative documents must be included in the agreements that are entered into by the county or designated entity and the participating dealers.(1) A participating county shall provide an electronic means for distributing replacement funds to a participating dealer once all program criteria have been met. The replacement funds may be used as a down payment toward the purchase of a replacement vehicle. Participating dealers shall be located in the State of Texas. Participation in the LIRAP by a dealer is voluntary.(2) Participating counties shall develop a document for confirming a person's eligibility for purchasing a replacement vehicle and for tracking such purchase.(A) The document must include at a minimum, the full name of applicant, the vehicle identification number of the retired vehicle, expiration date of the document, the program administrator's contact information, and the amount of money available to the participating vehicle owner.(B) The document must be presented to a participating dealer by the person seeking to purchase a replacement vehicle before entering into negotiations for a replacement vehicle.(C) A participating dealer who relies on the document issued by the participating county has no duty to confirm the eligibility of the person purchasing a replacement vehicle in the manner provided by this section.(g) Opting out of the LIRAP. Participation in the LIRAP is voluntary. A participating county may opt out of the program. Procedures to release a participating county from the LIRAP shall be initiated upon the receipt of a written request to the executive director by the county commissioner's court in a participating county.(1) A written request to opt out of the LIRAP shall request release from the LIRAP fee as defined in §114.7 of this title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions) and the grant contract established in subsection (a) of this section. The written request shall include one of the following possible LIRAP opt-out effective dates as defined in §114.7 of this title:(A) the LIRAP fee termination effective date as defined in §114.7 of this title; or(B) the last day of the legislative biennium in which the LIRAP fee termination effective date as defined in §114.7 of this title occurred.(2) Upon receipt of a written request to be released from participation in the LIRAP, the executive director shall notify, in writing, with a copy sent to the requesting county, the Texas Department of Motor Vehicles, DPS, and the Legislative Budget Board of Texas that the LIRAP fee should no longer be collected for vehicles undergoing inspection and registration in the affected county.(3) A county opting out of the LIRAP remains a participating county until the LIRAP opt-out effective date as defined in §114.7 of this title, on which date the county is no longer subject to the LIRAP fee, and the grant contract established in subsection (a) of this section is ended. Not more than 90 days after a county's LIRAP opt-out effective date, the unspent balance of allocated LIRAP funds for that county will be returned to the commission unless the county opting out has entered into an official inter-county elective agreement with other participating counties in the same region to share allocated LIRAP funds. If the county opting out has entered into an official inter-county elective agreement with other participating counties in the same region to share allocated LIRAP funds, then the portion of LIRAP allocations that is shared and unspent as of the LIRAP opt-out effective date will be redistributed among the remaining participating counties that are part of that agreement. This redistribution of funds will occur not more than 90 days after a county's LIRAP opt-out effective date.</content><note type="source"><p>Source Note: The provisions of this §114.64 adopted to be effective April 18, 2002, 27 TexReg 3194; amended to be effective May 4, 2006, 31 TexReg 3575; amended to be effective December 27, 2007, 32 TexReg 9711; amended to be effective December 13, 2010, 35 TexReg 10985; amended to be effective July 5, 2012, 37 TexReg 4941; amended to be effective May 21, 2015, 40 TexReg 2670; amended to be effective March 9,2017, 42 TexReg 1029; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.66"><num value="114.66">§114.66</num><heading>Disposition of Retired Vehicle</heading><content>(a) Vehicles retired under a Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) may not be resold or reused in their entirety in this or another state. Any dismantling of vehicles or salvaging of steel under this section must be performed at a facility located in the state of Texas.(b) The vehicle must be:(1) destroyed;(2) recycled;(3) dismantled and its parts sold as used parts or used in the LIRAP;(4) placed in a storage facility and subsequently destroyed, recycled, or dismantled within 12 months of the vehicle retirement date and its parts sold or used in the LIRAP; or(5) repaired, brought into compliance, and used as a replacement vehicle under this division. Not more than 10% of all vehicles eligible for retirement may be used as replacement vehicles.(c) Notwithstanding subsection (b) of this section, the dismantler of a vehicle shall destroy the emissions control equipment and engine, certify those parts have been destroyed and not resold into the market place. The dismantler shall remove any mercury switches and shall comply with state and federal laws applicable to the management of those mercury switches.(d) The dismantler shall provide certification that the vehicle has been destroyed to the dealer from whom the dismantler has taken receipt of a vehicle for retirement. The dealer shall submit to the participating county or its designated entity the proof of destruction from the dismantler.(e) The dismantler shall provide the residual scrap metal of a retired vehicle under this section to a recycling facility at no cost, except for the cost of transportation of the residual scrap metal to the recycling facility.</content><note type="source"><p>Source Note: The provisions of this §114.66 adopted to be effective April 18, 2002, 27 TexReg 3194; amended to be effective December 27, 2007, 32 TexReg 9711; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.68"><num value="114.68">§114.68</num><heading>Emission Reduction Credits</heading><content>(a) Emission Reduction Credits Available Under a Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP). A participating county may allow private, commercial, and business entities to provide monetary assistance towards the LIRAP. To the extent allowed under state and federal law, private, commercial, and business entities may purchase eligible vehicles under §114.64(c) of this title (relating to LIRAP Requirements) for accelerated retirement as approved by the participating county, and may have up to 100% of the emission reductions certified as emission credits. This emission reduction credit may be transferred or used by the holder in accordance with Chapter 101, Subchapter H, Division 1 or 4 of this title (relating to Emission Credit Banking and Trading; and Discrete Emission Credit Banking and Trading).(b) Emission Reduction Credits Available for Vehicles Not Covered Under a LIRAP. To the extent allowed under state and federal law, a fleet vehicle, a government owned or leased vehicle, or a commercial vehicle may be retired and may have up to 100% of the emission reductions certified as emission credits.(c) Other Requirements. Emission reduction credits under subsection (a) or (b) of this section must meet the requirements of Chapter 101, Subchapter H, Division 1 or 4 of this title.</content><note type="source"><p>Source Note: The provisions of this §114.68 adopted to be effective April 18, 2002, 27 TexReg 3194.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.70"><num value="114.70">§114.70</num><heading>Records, Audits, and Enforcement</heading><content>(a) A participating county shall submit quarterly audit reports to ensure that the funds provided to implement the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) have been used in accordance with requirements of this division. The quarterly reports (September - November, December - February, March - May, June - August) must be transmitted to the executive director in paper copies or in an electronic database format to be determined by mutual agreement between the state and the participating county no later than 30 days after the end of the quarter.(b) At a minimum, the quarterly reports must include the following:(1) name of the county department or entity implementing the program and their mailing address;(2) name of the official representative of the county department or entity;(3) amount of funds received during the reporting period;(4) amount distributed for repair assistance, retrofitting, accelerated retirement, and administrative costs;(5) information regarding the recognized emissions repair facilities and vehicle retirement facilities participating in the LIRAP, including the number of approved assistance transactions, the amount of each transaction, and the total amounts paid to each facility;(6) pending amount of funds that must be paid out;(7) information for each vehicle participating in program, including:(A) vehicle identification number (VIN);(B) vehicle license plate number;(C) name and business address of the Texas Department of Public Safety recognized emissions repair facility or vehicle retirement facility; and(D) date of vehicle repair, retrofit, or retirement;(8) information for each replacement vehicle including:(A) VIN;(B) make of vehicle;(C) model year;(D) odometer reading;(E) name and business address of seller; and(9) any other information requested by the executive director.(c) Records on LIRAP must be maintained for a minimum period of three years by a participating county, its designated entity, a participating recognized emissions repair facility, and a participating vehicle retirement facility. Upon the LIRAP opt out effective date as defined in §114.7 of this title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions), the non-participating county, its designated entity, a participating recognized emissions repair facility, and a participating vehicle retirement facility must maintain program records for the non-participating county for a period of three years. Such records must be available upon request by the executive director for auditing purposes.(d) A participating county, its designated entity, a participating recognized emissions repair facility, and a participating vehicle retirement facility shall allow the executive director to conduct audits and inspections. For a period of three years after the LIRAP opt-out effective date as defined in §114.7 of this title, a non-participating county, its designated entity, a participating recognized emissions repair facility, and a participating vehicle retirement facility shall allow the executive director to conduct audits and inspections of records from the non-participating county.(e) A person who, with intent to defraud, sells a vehicle in an accelerated vehicle retirement program under LIRAP commits an offense that is classified as a third degree felony.(f) A person who causes, suffers, allows, or permits a violation of §114.66(c) and (d) of this title (relating to Disposition of Retired Vehicle) is subject to a civil penalty under Texas Water Code, Chapter 7, Subchapter D, for each violation. A separate violation occurs with each fraudulent certification or prohibited resale.</content><note type="source"><p>Source Note: The provisions of this §114.70 adopted to be effective April 18, 2002, 27 TexReg 3194; amended to be effective December 27, 2007, 32 TexReg 9711; amended to be effective May 21, 2015, 40 TexReg 2670.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.72"><num value="114.72">§114.72</num><heading>Local Advisory Panels</heading><content>(a) The commissioners court of a participating county may appoint one or more local advisory panels to provide advice on Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) and to assist in identifying vehicles with intrinsic value that make these vehicles existing or future collectibles. A vehicle identified under this section may be sold to an individual if the vehicle is:(1) repaired and brought into compliance;(2) removed from the state;(3) removed from an affected county; or(4) stored for future restoration and cannot be registered in an affected county except under Transportation Code, §504.501 or §504.502.(b) A commissioners court may delegate all or part of the financial and administrative matters to any of the local advisory panels that it appoints.(c) A local advisory panel may consist of representatives from:(1) dealers;(2) automotive repair industry;(3) emissions inspection facilities;(4) the general public;(5) antique and vintage car clubs;(6) local nonprofit organizations; and(7) locally affected governments.</content><note type="source"><p>Source Note: The provisions of this §114.72 adopted to be effective April 18, 2002, 27 TexReg 3194; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.80"><num value="114.80">§114.80</num><heading>Applicability</heading><content>(a) The requirements of this section apply only to counties that have adopted an early action compact (EAC) clean air action plan, and that along with the largest municipality in each county have submitted to the commission a resolution requesting implementation of a vehicle inspection and maintenance (I/M) program in that county.(b) Travis and Williamson Counties are the only counties in the Austin/Round Rock metropolitan statistical area affected by subsections (a) and (c) of this section.(c) The EAC I/M program requires all gasoline-powered motor vehicles 2 - 24 years old that are registered and primarily operated in Travis and Williamson Counties to undergo an annual emissions inspection. The program requires all gasoline-powered rental vehicles, as defined in §114.2 of this title (relating to Inspection and Maintenance Definitions), 3 - 24 years old that are registered and primarily operated in Travis and Williamson Counties to undergo an annual emissions inspection. Military tactical vehicles, motorcycles, diesel-powered vehicles, dual-fueled vehicles that cannot operate using gasoline, and antique vehicles registered with the Texas Department of Transportation are excluded from the program. Inspection facilities and inspectors certified by the Texas Department of Public Safety shall inspect all subject vehicles.</content><note type="source"><p>Source Note: The provisions of this §114.80 adopted to be effective December 9, 2004, 29 TexReg 11348; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.81"><num value="114.81">§114.81</num><heading>Vehicle Emissions Inspection Requirements</heading><content>This section applies to all vehicles registered and primarily operated, as defined in §114.2 of this title (relating to Inspection and Maintenance Definitions), in the affected early action compact (EAC) program counties, except as provided in §114.80 of this title (relating to Applicability).(1) All vehicles registered and primarily operated in affected EAC counties equipped with on-board diagnostic (OBD) systems must be tested using United States Environmental Protection Agency (EPA)-approved OBD test procedures.(2) All vehicle emissions inspection stations in affected EAC program counties shall offer the OBD test.</content><note type="source"><p>Source Note: The provisions of this §114.81 adopted to be effective December 9, 2004, 29 TexReg 11348; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.82"><num value="114.82">§114.82</num><heading>Control Requirements</heading><content>(a) No person or entity may operate, or allow the operation of, a motor vehicle registered in the affected early action compact (EAC) counties that does not comply with:(1) All applicable air pollution emissions control-related requirements included in the annual vehicle inspection requirements administered by the Texas Department of Public Safety (DPS) as evidenced by a current valid vehicle registration insignia sticker or a current valid vehicle inspection report (VIR), or other form of proof authorized by the DPS or the Texas Department of Motor Vehicles; and(2) the vehicle emissions inspection and maintenance (I/M) requirements contained in this subchapter.(b) A motorist in an affected EAC county who has received a notice from an emissions inspection station that there are unresolved recall items on the motor vehicle shall furnish proof of compliance with the recall notice prior to the next vehicle emissions inspection, such as a written statement from the dealer or leasing agency indicating that emissions repairs have been completed.(c) A motorist whose vehicle has failed an emissions test may request a challenge retest through DPS. If the retest is conducted within 15 days of the initial inspection, the cost of the retest is free.(d) A motorist whose vehicle has failed an emissions test and has not requested a challenge retest or has failed a challenge retest shall have emissions-related repairs performed and submit a properly completed vehicle repair form in order to receive a retest. In order to receive a waiver or time extension, the motorist shall submit a vehicle repair form or applicable documentation as considered necessary by the DPS.(e) A motorist whose vehicle is registered in an affected EAC county, or in any county adjacent to an affected EAC county, and has failed an on-road test administered by the DPS shall:(1) submit the vehicle for an out-of-cycle vehicle emissions inspection within 30 days of written notice by the DPS; and(2) satisfy all inspection, extension, or waiver requirements of the vehicle emissions I/M program contained in the Austin Area Early Action Compact Ozone State Implementation Plan Revision.(f) A vehicle registered in a county without an I/M program that meets the applicability criteria of §114.80(c) of this title (relating to Applicability), and the ownership of which has changed through a retail sale as defined by Texas Occupations Code, §2301.002, is not eligible for title receipt or registration in an affected EAC program county with an I/M program unless proof is presented that the vehicle has passed an approved vehicle emissions inspection within 90 days before the title transfer. The evidence of proof required may be in the form of the vehicle inspection report or another proof of the program compliance as authorized by the DPS. All vehicles with less than 50,000 miles are exempt from the test-on-resale requirements of this subsection.(g) State, governmental, and quasi-governmental agencies that fall outside the normal registration or inspection process must comply with all vehicle emissions I/M requirements contained in the Austin Area Early Action Compact Ozone State Implementation Plan Revision for vehicles primarily operated in I/M program areas.</content><note type="source"><p>Source Note: The provisions of this §114.82 adopted to be effective December 9, 2004, 29 TexReg 11348; amended to be effective March 6, 2014, 39 TexReg 1400; amended to be effective April 21, 2022, 47 TexReg 2013; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.83"><num value="114.83">§114.83</num><heading>Waivers and Extensions</heading><content>A motorist may apply to the Texas Department of Public Safety for a waiver or an extension as specified in 37 TAC Chapter 23, Subchapter E (relating to Vehicle Emissions Inspection and Maintenance Program), which defers the need for full compliance with vehicle emissions standards for a specified period of time after failing a vehicle emissions inspection.</content><note type="source"><p>Source Note: The provisions of this §114.83 adopted to be effective December 9, 2004, 29 TexReg 11348; amended to be effective March 6, 2014, 39 TexReg 1400.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.84"><num value="114.84">§114.84</num><heading>Prohibitions</heading><content>(a) No person may issue or allow the issuance of a vehicle inspection report, as authorized by the Texas Department of Public Safety (DPS), unless all applicable air pollution emissions control-related requirements of the vehicle emissions inspection and maintenance (I/M) requirements and procedures contained in the Austin Area Early Action Compact Ozone State Implementation Plan Revision are completely and properly performed in accordance with the rules and regulations adopted by the DPS and the commission. Prior to taking any enforcement action regarding this provision, the executive director shall consult with the DPS.(b) No person may allow or participate in the preparation, duplication, sale, distribution, or use of false, counterfeit, or stolen vehicle registration insignia stickers, vehicle inspection reports, vehicle repair forms, vehicle emissions repair documentation, or other documents that may be used to circumvent the vehicle emissions I/M requirements and procedures contained in the Austin Area Early Action Compact Ozone State Implementation Plan Revision.(c) No organization, business, person, or other entity may represent itself as an emissions inspector certified by the DPS unless the certification has been issued under the certification requirements and procedures contained in Texas Transportation Code, §§548.401 - 548.404.(d) No person may act as or offer to perform services as a Recognized Emissions Repair Technician of Texas, as designated by the DPS, without first obtaining and maintaining DPS recognition. Requirements to become a DPS Recognized Emission Repair Technician are contained in 37 TAC Chapter 23, Subchapter E (relating to Vehicle Emissions Inspection and Maintenance Program).</content><note type="source"><p>Source Note: The provisions of this §114.84 adopted to be effective December 9, 2004, 29 TexReg 11348; amended to be effective March 6, 2014, 39 TexReg 1400; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.85"><num value="114.85">§114.85</num><heading>Equipment Evaluation Procedures for Vehicle Exhaust Gas Analyzers</heading><content>Guidelines for approval of an exhaust gas analyzer or analyzer system for use in the Texas Inspection and Maintenance program are contained in §114.51 of this title (relating to Equipment Evaluation Procedures for Vehicle Exhaust Gas Analyzers).</content><note type="source"><p>Source Note: The provisions of this §114.85 adopted to be effective December 9, 2004, 29 TexReg 11348.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.86"><num value="114.86">§114.86</num><heading>Low Income Repair Assistance Program (LIRAP) for Participating Early Action Compact Counties</heading><content>(a) Affected early action compact counties opting to implement a Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program shall meet the provisions contained in Subchapter C, Division 2 of this chapter (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement).(b) The executive director shall provide funding for the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program with available funds from fees collected under §114.87 of this title (relating to Inspection and Maintenance Fees) or other designated and available funds.</content><note type="source"><p>Source Note: The provisions of this §114.86 adopted to be effective December 9, 2004, 29 TexReg 11348.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scC/s114.87"><num value="114.87">§114.87</num><heading>Inspection and Maintenance Fees</heading><content>(a) The following fees must be paid for an emissions inspection of a vehicle at an inspection station in an affected early action compact program county. This fee must include one free retest if the vehicle fails the emissions inspection, provided that the motorist has the retest performed at the same station where the vehicle originally failed; the motorist submits, prior to the retest, a properly completed vehicle repair form showing that emissions-related repairs were performed; and the retest is conducted within 15 days of the initial emissions test. In Travis and Williamson Counties, any emissions inspection station required to conduct an emissions test in accordance with §114.80 of this title (relating to Applicability) must collect a fee not to exceed $11.50 for each emissions test.(b) The per-vehicle fee and the amount the inspection station remits to the DPS for a challenge test at an inspection station designated by the DPS must be the same as the amounts specified in subsection (a) of this section. The challenge fee must not be charged if the vehicle is retested within 15 days of the initial test.(c) Inspection stations performing out-of-cycle vehicle emissions inspections resulting from written notification that the subject vehicle failed on-road testing (remote sensing) must charge a motorist for an out-of-cycle emissions inspection in the amount specified in subsection (a) of this section. If the vehicle passes the vehicle emissions inspection, the vehicle owner may request reimbursement from the DPS.(d) In Travis and Williamson Counties, the following requirements apply.(1) Vehicle owners in counties participating in Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP) shall remit $4.50 for motor vehicles subject to vehicle emissions inspections to the Texas Department of Motor Vehicles (DMV) or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee. Of the $4.50 remitted, $2.00 constitutes the LIRAP fee as defined in §114.7 of this title (relating to Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program Definitions). (2) Vehicle owners in counties participating in the LIRAP and in the process of opting out shall remit $4.50 for motor vehicles subject to emissions inspection to the DMV or county tax assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee until the LIRAP fee termination effective date as defined in §114.7 of this title. Of the $4.50 remitted, $2.00 constitutes the LIRAP fee as defined in §114.7 of this title. Upon the LIRAP fee termination effective date, vehicle owners in participating counties that are in the process of opting out of the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspections to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.(3) Vehicle owners in counties not participating in the LIRAP shall remit $2.50 for motor vehicles subject to vehicle emissions inspection to the DMV or county tax-assessor-collector at the time of annual vehicle registration as part of the vehicle emissions inspection fee.</content><note type="source"><p>Source Note: The provisions of this §114.87 adopted to be effective December 9, 2004, 29 TexReg 11348; amended to be effective March 6, 2014, 39 TexReg 1400; amended to be effective May 21, 2015, 40 TexReg 2670; amended to be effective October 16, 2025, 50 TexReg 6675.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c114/scD"><num value="D">SUBCHAPTER D</num><heading>OXYGEN REQUIREMENTS FOR GASOLINE</heading><section identifier="/us/state/tx/tac/t30/p1/c114/scD/s114.100"><num value="114.100">§114.100</num><heading>Oxygenated Fuels</heading><content>(a) Beginning October 1, 1992, no person shall supply, sell, or dispense any gasoline for use as motor vehicle fuel in El Paso County during the period of October 1 through March 31 of each year, unless the gasoline has a minimum oxygen content of 2.7% by weight, except as allowed under subsection (g) of this section.(b) No averaging, banking, or trading of oxygenate credits will be allowed until such time as a mechanism for the reporting and tracking of these credits is established by the executive director.(c) All gasoline storage, refining, and blending facilities; gasoline terminal and bulk plants; and gasoline transporters affected by this section shall be registered with the commission and the El Paso City-County Health District. The owner or operator of each affected facility shall provide the following information to the executive director and shall update this information, as necessary, by September 1st of each year:(1) company name, mailing address, local street address, and telephone number;(2) name and title of the company's chief executive officer and a local contact;(3) type of facility;(4) commission account numbers, if applicable; and(5) description of the affected operation.(d) All facilities affected by this section shall maintain complete and accurate records for at least two years and shall make such records available to representatives of the executive director, United States Environmental Protection Agency (EPA), or local air pollution agency having jurisdiction in the area upon request. The information in the records shall include, but shall not be limited to, the following:(1) for refiners/importers of oxygenated gasoline:(A) copies of all results of tests for oxygen content performed on batches of gasoline prior to transfer. For purposes of this rule, a batch of gasoline is considered any quantity greater than one gallon;(B) copies of all bills of lading or transfer documents for each batch; and(C) documents stating whether or not shipments of gasoline to any facility in a control area for use during a control period were oxygenated or non-oxygenated and stating oxygen content by weight of the gasoline, type of oxygenate used, and oxygenate content by volume.(2) for blenders, gasoline terminals, and bulk plants:(A) copies of all results of tests for oxygen content performed on batches of gasoline prior to transfer, or records of automated blending operations;(B) copies of all documents stating the quantity and oxygen content of the gasoline received and the type of oxygenate received by the facility; and(C) copies of all documents stating the quantity of gasoline shipped, whether gasoline shipments from the facility were oxygenated or non-oxygenated, and the type of oxygenate used.(3) for gasoline transporters:(A) copies of all documents stating the quantity of gasoline received by the transporter, whether the gasoline is oxygenated or non-oxygenated, and the type of oxygenate used; and(B) copies of all bills of lading or transfer documents for each batch.(4) for retailer and wholesale purchaser-consumer:(A) copies of all documents stating the quantity of gasoline received by the facility, whether the gasoline is oxygenated or non-oxygenated, and the type of oxygenate used; and(B) copies of all bills of lading or transfer documents for each batch.(e) The oxygen content of gasoline at facilities affected by this section shall be determined by the following test methods:(1) gasoline sampling methodology described in 40 Code of Federal Regulations, Part 80, Appendix D;(2) the active version of American Society for Testing and Materials Test Method D4815 for the control periods beginning in 1992 and thereafter;(3) EPA Oxygenate Flame Ionization Detector Test Method; or(4) other test methods approved by EPA beginning in 1995 and thereafter.(f) Each gasoline pump at a retail outlet from which oxygenated gasoline is dispensed shall display a legible and conspicuous label on which either the statement in paragraph (1) or in paragraph (2) of this subsection is printed in 36-point bold type in a color contrasting with the intended background. This label shall be placed so it is clearly legible from each side of the pump from which fuel can be dispensed.(1) A label on which the following statement is printed shall be displayed only during the period of October 1 through March 31: "The gasoline dispensed from this pump is oxygenated and will reduce carbon monoxide pollution from motor vehicles."(2) A label on which the following statement is printed shall be displayed during the period of October 1 through March 31 and may be displayed at any other time up to year-round: "From October 1 through March 31, the gasoline dispensed from this pump is oxygenated and will reduce carbon monoxide pollution from motor vehicles."(g) The sale or distribution of non-oxygenated gasoline in a control area during the control period shall be allowed only under the following conditions:(1) such gasoline is segregated from oxygenated gasoline;(2) the documents which accompany such gasoline are clearly marked as "non-oxygenated gasoline, not for sale to ultimate consumers in a control area," and shall accompany the gasoline at all times;(3) the product is clearly labeled as "blendstock," "export," "storage," or a similar statement to prohibit improper distribution; and(4) the non-oxygenated gasoline is in fact not sold or dispensed to ultimate consumers during the control period in the control area.</content><note type="source"><p>Source Note: The provisions of this §114.100 adopted to be effective December 1, 1997, 22 TexReg 11388; amended to be effective December 29, 2016, 41 TexReg 10361.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c114/scG"><num value="G">SUBCHAPTER G</num><heading>TRANSPORTATION PLANNING</heading><section identifier="/us/state/tx/tac/t30/p1/c114/scG/s114.260"><num value="114.260">§114.260</num><heading>Transportation Conformity</heading><content>(a) Purpose. The purpose of this section is to implement certain requirements set forth in 40 Code of Federal Regulations (CFR) Part 93, Subpart A (relating to Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded, or Approved Under Title 23 United States Code (USC) or the Federal Transit Laws), which are the regulations developed by the United States Environmental Protection Agency (EPA) under the Federal Clean Air Act Amendments of 1990, §176(c)(4)(e). This section addresses the consultation process and the written commitment requirements for control measures and mitigation measures that are used to demonstrate and assure conformity of transportation planning activities with the state implementation plan (SIP). (b) Applicability. This section applies to transportation-related criteria pollutants for which an area is designated nonattainment or is subject to a maintenance plan. The transportation-related criteria pollutants are ozone, carbon monoxide, nitrogen dioxide, particles with an aerodynamic diameter of ten micrometers (PM 10 ) and smaller, and particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM 2.5 ). This section also applies to the precursors of ozone, nitrogen dioxide, PM10 , and PM2.5 as required in 40 CFR §93.102. (c) CFR incorporation. The written commitment requirements as specified in 40 CFR §93.122(a)(4)(ii) and §93.125(c) are adopted by reference. (d) Consultation. Under 40 CFR §93.105, regarding consultation, the following procedures must be undertaken in nonattainment and maintenance areas before making conformity determinations and before adopting applicable SIP revisions. (1) General factors. (A) For the purposes of this subsection, concerning consultation, the affected agencies include: (i) EPA; (ii) Federal Highway Administration (FHWA); (iii) Federal Transit Administration (FTA); (iv) Texas Department of Transportation (TxDOT); (v) metropolitan planning organizations (MPOs) in nonattainment or maintenance areas; (vi) local publicly owned transit services in nonattainment or maintenance areas (the designated recipient of FTA §5307 funds); (vii) Texas Commission on Environmental Quality (commission); (viii) local air quality agencies in nonattainment or maintenance areas (recipients of 42 USC, §7405 funds). (B) All correspondence with the affected agencies in subparagraph (A) of this paragraph must be addressed to the following designated points of contact: (i) MPO: executive director or designee; (ii) commission: executive director or designee; (iii) TxDOT: director of Transportation Planning and Programming or designee; (iv) TxDOT: director of Environmental Affairs Division or designee; (v) FHWA: administrator of Texas Division or designee; (vi) FTA: director of Office of Program Development or designee - FTA Region 6; (vii) EPA: regional administrator or designee - EPA Region 6; (viii) TxDOT District: district engineer or designee; (ix) local publicly owned transit services (the designated recipient of FTA §5307 funds): general manager or designee; (x) local air quality agencies (recipients of 42 USC, §7405 funds): director or designee; and (xi) commission regions in nonattainment or maintenance areas: regional director or designee. (2) Roles and responsibilities of affected agencies. (A) The MPO, in cooperation with TxDOT and publicly owned transit services, shall consult with the agencies in paragraph (1)(A) of this subsection in the development of Metropolitan Transportation Plans (MTPs), Transportation Improvement Programs (TIPs), projects, technical analyses, travel demand or other modeling, and data collection. Specifically, the MPOs shall: (i) allow the commission's executive director or a designated representative, to be a voting member of technical committees on surface transportation and air quality in each nonattainment and maintenance area in order to consult directly with the particular committee during the development of the transportation plans, programs, and projects; (ii) send information on time and location, an agenda, and supporting materials (including preliminary versions of MTPs and TIPs) for all regularly scheduled meetings on surface transportation or air quality to each of the contacts specified in paragraph (1)(B) of this subsection. This information must be provided in accordance with the locally adopted public participation process as required in 23 CFR Part 450; (iii) after preparation of final draft versions of MTPs and TIPs, and before adoption and approval by the affected governing body, ensure that the contacts specified in paragraph (1)(B) of this subsection receive a copy, and that they are included in the local area's public participation process as required in 23 CFR Part 450. Upon approval of MTPs and TIPs, MPOs shall distribute final approved copies of the documents to the contacts specified in paragraph (1)(B) of this subsection; (iv) for the purposes of regional emissions analysis, initiate a consultation process with the affected agencies specified in paragraph (1)(A) of this subsection during the development stage of new or revised MTPs and TIPs to determine which transportation projects should be considered regionally significant and which projects should be considered to have a significant change in design concept and scope from the effective MTP and TIP. Regionally significant projects will include, at a minimum, all facilities classified as principal arterial or higher, or fixed guideway systems or extensions that offer an alternative to regional highway travel. Also, these include minor arterials included in the travel demand modeling process that serve significant interregional and intraregional travel, and connect rural population centers not already served by a principal arterial, or connect with intermodal transportation terminals not already served by a principal arterial. A significant change in design concept and scope is defined as a revision of a project in the MTP or TIP that would significantly affect model speeds, vehicle miles traveled, or network connections. In addition to new facilities, examples include changes in the number of through lanes or length of project (more than one mile), access control, addition of major intermodal terminal facilities (such as new international bridges, park-and-ride lots, and transfer terminals), addition/deletion of interchanges, or changing between free and toll facilities. When a significant change in the design and scope of a project is proposed, the MPO shall document the rationale for the change and give the affected agencies specified in paragraph (1)(A) of this subsection a 30-day opportunity to comment on the rationale. The MPO shall consider the views of each agency that comments, and respond in writing before any final action on these issues. If the MPO receives no comments within 30 days, the MPO may assume concurrence by the agencies specified in paragraph (1)(A) of this subsection; (v) include in the TIP a list of projects exempted from the requirements of a conformity determination under 40 CFR §93.126 and §93.127. The MPO shall consult with the affected agencies specified in paragraph (1)(A) of this subsection in determining if a project on the list has potentially adverse emissions for any reason, including whether or not the exempt project will interfere with implementation of an adopted transportation control measure (TCM). The MPO shall respond in writing to all comments within 30 days on final MTP and TIP documents. In addition, if no comments are received as part of the subsequent public participation process for the TIP, the MPO may proceed with implementation of the exempt project; (vi) notify the affected agencies specified in paragraph (1)(A) of this subsection in writing of any MTP or TIP revisions or amendments that add or delete the exempt projects identified in 40 CFR §93.126; (vii) before adoption of any new or substantially different methods or assumptions used in the hot spot or regional emissions analysis, provide an opportunity for the agencies specified in paragraph (1)(A) of this subsection to review and comment; (viii) in coordination with TxDOT and the local transit agencies, disclose all known, regionally significant, non-federal projects, even if the sponsor has not made a final decision on its implementation; include all disclosed, or otherwise known, regionally significant, non-federal projects in the regional emissions analysis for the nonattainment area; respond in writing to any comments that known plans for a regionally significant, non-federal project have not been properly reflected in the regional emissions analysis; and have recipients of federal funds determine annually that their regionally significant, non-federal projects are included in a conforming MTP or TIP, or are included in a regional emissions analysis of the MTP and TIP. The MPO shall consult with project sponsors to determine the non-federal projects' location and design concept and scope to be used in the regional emissions analysis, particularly for projects that the sponsor does not report a single intent because the sponsor's alternatives selection process is not yet complete. If the MPO assumes a design concept and scope that is different from the sponsor's ultimate choice, the next regional emissions analysis for a conformity determination must reflect the most recent information regarding the project's design concept and scope; (ix) ensure timely TCM implementation and report on the implementation and emissions reductions status of adopted TCMs annually to the commission; (x) cooperatively share the responsibility for conducting conformity determinations on transportation activities that cross the borders of MPOs or nonattainment and maintenance areas. The affected MPOs will enter into a Memorandum of Agreement (MOA) that will define the effective boundary and the respective responsibilities of each MPO for regional emissions analysis. The MPOs will be responsible within their respective metropolitan area boundaries and, at their option, beyond to the boundaries of the nonattainment/maintenance areas, for regional emissions analysis. Adjacent MPOs or nonattainment/maintenance areas or basins will share information concerning air quality modeling assumptions and emission rates that affect both areas; and (xi) for the purpose of determining the conformity of all projects outside the metropolitan planning area, but within the nonattainment or maintenance area, enter into an MOA involving the MPO and TxDOT for cooperative planning and analysis of projects. (B) The commission, as the lead air quality planning agency, shall work in consultation with the agencies specified in paragraph (1)(A) of this subsection in developing applicable transportation-related SIP revisions, air quality modeling, general emissions analysis, emissions inventory, and all related activities. Specifically, the commission shall: (i) set agendas and schedule meetings to seek advice and comments from all agencies specified in paragraph (1)(A) of this subsection during preparation of applicable transportation-related SIP revisions; (ii) schedule public hearings in order to gather public input on the applicable transportation-related SIP revisions in accordance with 40 CFR §51.102 and notify the agencies specified in paragraph (1)(B) of this subsection of the hearings; (iii) provide copies of final documents, including applicable adopted or approved transportation-related SIP revisions and supporting information, to all agencies specified in paragraph (1)(B) of this subsection; (iv) after consultation with the MPO regarding TCMs, distribute to all agencies specified in paragraph (1)(B) of this subsection and other interested persons the list of TCMs proposed for inclusion in the SIP. In consultation with the agencies specified in paragraph (1)(A) of this subsection, the commission shall determine whether past obstacles to implementation of TCMs have been identified and are being overcome, and determine whether the MPOs and the implementing agencies are giving maximum priority to approval or funding for TCMs. Also, the commission shall consider, in consultation with the affected agencies, whether delays in TCM implementation necessitate a SIP revision to remove TCMs or to substitute TCMs or other emission reduction measures; and (v) consult with the applicable agencies specified in paragraph (1)(A) of this subsection, in order to cooperatively choose conformity tests and methodologies for isolated rural nonattainment and maintenance areas, as required by 40 CFR §93.109(l)(2)(iii). (C) Any group, entity, or individual planning to construct a regionally significant transportation project that is not an FHWA-FTA project (including projects for which alternative locations, design concept and scope, or the no-build option are still being considered) shall disclose project plans to the MPO on a regular basis and disclose any changes to those plans immediately. This requirement also applies to recipients of funds designated under 23 USC or the federal transit laws. (3) General procedures. (A) The MPO, TxDOT, or the commission, as applicable, shall respond to comments of affected agencies on MTPs, TIPs, projects, or SIP revisions in accordance with the public participation procedures that govern the involved action. The MPO, TxDOT, or the commission, as applicable, shall include all comments and the replies to those comments with final documents when they are submitted for adoption by the agency's governing board. In the event that comments are not adequately resolved, the procedures outlined in paragraph (4) of this subsection regarding conflict resolution apply. (B) Because the validity of the regional emissions analysis depends on transportation modeling assumptions that need periodic updates, the MPO, with the assistance of TxDOT and local publicly owned transit agencies, will conduct meetings with the agencies specified in paragraph (1)(A) of this subsection to cooperatively establish research and data collection efforts and regional model development (e.g., household/transportation surveys). (C) For the purposes of evaluating and choosing a model (or models) and associated methods and assumptions to be used in hot spot and regional emissions analyses, agencies specified in paragraph (1)(A) of this subsection shall participate in a working group. The frequency of meetings and agendas for them will be cooperatively determined by the agencies specified in paragraph (1)(A) of this subsection. (D) The commission, affected MPOs, affected local air quality agencies, and TxDOT shall cooperatively evaluate events that will trigger the need for new conformity determinations. New conformity determinations may be triggered by events established in 40 CFR §93.104 as well as other events, including emergency relief projects that require substantial functional, locational, and capacity changes, or in the event of any other unforeseeable circumstances. (E) The MPO and its governing body, or TxDOT if applicable, shall make conformity determinations for all MTPs, TIPs, regionally significant projects, and all other events as required by 40 CFR Part 93, Subpart A and this section. Upon completion of the transportation conformity determination review process (including consultation, public participation, and all other requirements of this section), FHWA and FTA will issue a joint conformity finding, indicating the transportation conformity status of the document(s) under review. The effective date of the conformity determination for an area is the date of the joint conformity finding made by FHWA-FTA. (4) Conflict resolution. (A) The commission and the MPO (or TxDOT where appropriate) shall make a good-faith effort to address the major concerns of the other party in the event they are unable to reach agreement on the conformity determination of a proposed MTP or TIP. The efforts must include meetings of the agency executive directors, if necessary. (B) In the event that the MPO or TxDOT determines that every effort has been made to address the commission's concerns, and that no further progress is possible, the MPO or TxDOT shall notify the commission's executive director in writing to this effect. This subparagraph must be cited by the MPO or TxDOT in any notification of a conflict that may require action by the governor, or his or her delegate under subparagraph (C) of this paragraph. (C) The commission has 14 calendar days from date of receipt of notification, as required in subparagraph (B) of this paragraph, to appeal to the governor. If the commission appeals to the governor, the final conformity determination must then have the concurrence of the governor. The governor may delegate his or her role in this process, but not to the commission or commission staff, a local air quality agency, the Texas Transportation Commission or TxDOT staff, or an MPO. This subparagraph must be cited by the commission in any notification of a conflict that may require action by the governor or his or her delegate. If the commission does not appeal to the governor within 14 calendar days from receipt of written notification, the MPO or TxDOT may proceed with the final conformity determination. (5) Public comment on conformity determinations. Consistent with the requirements of 23 CFR Part 450, concerning public participation, the agencies making conformity determinations on transportation plans, programs, and projects must establish a proactive public participation process that provides opportunity for public review and comment. Any charges imposed for public inspection and copying should be consistent with the fee schedule contained in 49 CFR §7.43. In addition, these agencies shall address in writing any public comment claiming that a non-FHWA/FTA funded, regionally significant project has not been properly represented in the conformity determination for an MTP or TIP. Finally, these agencies shall provide opportunity for public involvement in conformity determinations for projects where otherwise required by law. (6) Good-faith effort made by the consulting agencies. In formulating an enforcement policy regarding a violation of this subsection (relating to the consultation process) the commission may consider any good-faith effort made by the consulting agencies to comply. (e) Regionally significant, non-federal projects. For the purposes of 40 CFR §93.121, adoption or approval of a regionally significant, non-federal project (a regionally significant project that does not require FHWA or FTA approval or funding) occurs when affected agencies that are recipients of federal funds designated under 23 USC or the federal transit laws take one of the following actions: (1) board approval, action, or resolution (such approval, action, or resolution does not include MPO approval for the purposes of approving a project in a currently conforming MTP or TIP); (2) issuance of administrative permits for the regionally significant project; (3) action of official authorizing the regionally significant project to proceed; (4) providing grants or loans for the construction of a regionally significant project; or (5) contract execution for the regionally significant project. (f) Compliance date. Compliance with this section is required for transportation conformity determinations that begin the interagency consultation process after the date of EPA approval of the transportation conformity SIP associated with this rule.</content><note type="source"><p>Source Note: The provisions of this §114.260 adopted to be effective December 1, 1997, 22 TexReg 11388; amended to be effective December 13, 1998, 23 TexReg 12428; amended to be effective May 22, 2003, 28 TexReg 3972; amended to be effective May 19, 2005, 30 TexReg 2856; amended to be effective July 19, 2007, 32 TexReg 4404.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scG/s114.270"><num value="114.270">§114.270</num><heading>Transportation Control Measures</heading><content>(a) Purpose. The purpose of this section is to implement requirements relating to transportation control measures (TCMs). These requirements address the roles and responsibilities of the metropolitan planning organizations (MPOs) and implementing transportation agencies in nonattainment and maintenance areas.(b) Applicability. This section applies to MPOs and agencies that implement TCMs in designated nonattainment or maintenance areas. The affected nonattainment and maintenance areas are listed in §101.1 of this title (relating to Definitions).(c) General. All TCMs shall be developed, coordinated, funded, approved, implemented, tracked, evaluated, and monitored in accordance with §114.260 of this title (relating to Transportation Conformity); Title 40 Code of Federal Regulations, Part 93 (Conformity to State or Federal Implementation Plans of Transportation Plans, Programs and Projects Developed, Funded or Approved Under Title 23 USC or the Federal Transit Laws, as amended); the Federal Clean Air Act, 42 United States Code, 1970, as amended; and the EPA TCM SIP approval criteria listed in the EPA guidance document "Transportation Control Measures: State Implementation Plan Guidance," EPA 450/2-89-020, September 1990.(d) MPO responsibilities. The MPO shall:(1) ensure that all responsibilities required by subsection (c) of this section are fulfilled;(2) maintain, on a rolling basis, complete and accurate records of all TCMs for at least five years. TCM records shall be sufficient to accurately reflect the effectiveness of the TCM program and shall include the following:(A) the annual status of the implementation of the TCM, including quantification of progress;(B) an annual estimate of the funding and other resources expended toward implementing the TCM, and a comparison of the actual and projected expenditures;(C) an annual estimate of the emission reductions achieved from implementation of the TCM, and a comparison of the actual and projected reductions; and(D) any modifications to the TCM since the last annual report and/or projected modifications for the next reporting period to compensate for a shortfall in the implementation of the TCM or in the associated emissions reductions; and(3) make such records available to representatives of the commission, the EPA, the Federal Highway Administration, the Federal Transit Administration, the Texas Department of Transportation, local air pollution agencies having jurisdiction in the area, and the public, upon request;(e) Implementing agency responsibilities. The implementing agency shall have the responsibility to:(1) ensure that all responsibilities required by subsection (c) of this section are fulfilled; and(2) provide to the MPO upon request:(A) a complete description of the TCMs and their associated estimated emission reduction benefits;(B) evidence that the TCMs were properly adopted by a jurisdiction with legal authority to commit to and execute the program;(C) evidence that funding has been, or will be, obligated to implement the TCMs; and(D) a description of the monitoring program to assess the TCM effectiveness.</content><note type="source"><p>Source Note: The provisions of this §114.270 adopted to be effective May 28, 2000, 25 TexReg 4578; amended to be effective July 19, 2007, 32 TexReg 4400.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c114/scH"><num value="H">SUBCHAPTER H</num><heading>LOW EMISSION FUELS</heading><section identifier="/us/state/tx/tac/t30/p1/c114/scH/s114.301"><num value="114.301">§114.301</num><heading>Control Requirements for Reid Vapor Pressure</heading><content>(a) In the counties listed in §114.309 of this title (relating to Affected Counties), no person shall sell, offer for sale, supply, offer for supply, dispense, transfer, allow the transfer, place, store, or hold in any stationary tank, reservoir, or other container any gasoline with a Reid vapor pressure greater than 7.8 pounds per square inch, on a per gallon basis, which may ultimately be used to power a gasoline engine in the affected counties according to the schedule in subsection (b) of this section.(b) Beginning May 1, 2000, all adjustments in the operation of affected facilities and all transfers or alterations of gasoline not meeting the requirements of this section must be completed as necessary to conform with the provisions of subsection (a) of this section during the following periods of each calendar year:(1) June 1 through October 1 of each year for gasoline dispensing facilities; and(2) May 1 through October 1 of each year for all other affected facilities.</content><note type="source"><p>Source Note: The provisions of this §114.301 adopted to be effective July 21, 1999, 24 TexReg 5487; amended to be effective April 27, 2000, 25 TexReg 3535; amended to be effective October 2, 2014, 39 TexReg 7740.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scH/s114.305"><num value="114.305">§114.305</num><heading>Approved Test Methods</heading><content>(a) Compliance with the Reid vapor pressure (RVP) limitations of §114.301 of this title (relating to Control Requirements for Reid Vapor Pressure) must be determined by the active version of the American Society for Testing and Materials Test Method D5191 (Standard Test Method for Vapor Pressure of Petroleum Products (Mini Method)) for the measurement of RVP using the following correlation correction equation to calculate RVP equivalent to that determined by test methods prescribed in 40 Code of Federal Regulations (CFR) Part 80, Appendix E, Method 3, dated March 17, 1993.Attached Graphic(b) Minor modifications to these test methods may be used, if approved by the executive director. (c) Test methods other than those specified in subsection (a) of this section, may be used if validated by 40 CFR Part 63, Appendix A, Test Method 301 (effective December 29, 1992). For the purposes of this subsection, substitute "executive director" each place that Test Method 301 references "administrator."</content><note type="source"><p>Source Note: The provisions of this §114.305 adopted to be effective July 21, 1999, 24 TexReg 5487; amended to be effective April 27, 2000, 25 TexReg 3535; amended to be effective December 29, 2016, 41 TexReg 10361.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scH/s114.306"><num value="114.306">§114.306</num><heading>Recordkeeping Requirements</heading><content>(a) The owner or operator of any gasoline storage vessel, gasoline terminal, or gasoline bulk plant subject to the provisions of §114.301 of this title (relating to Control Requirements for Reid Vapor Pressure) shall maintain records of the Reid vapor pressure of all gasoline stored or transferred during the compliance period. All records shall be maintained for two years and be made available for review by the executive director, United States Environmental Protection Agency (EPA), and local air pollution control agencies. Records do not have to be stored on-site, but must be made available for inspection at the site within five business days.(b) All parties in the distribution chain (producers, importers, terminals, pipelines, truckers, rail carriers, and retail fuel dispensing outlets) subject to the provisions of §114.301 of this title must maintain copies or records of product transfer documents for a minimum of two years and shall upon request, make such copies or records available to representatives of the commission, EPA, or local air pollution agency having jurisdiction in the area. The product transfer documents must contain, at a minimum, the following information:(1) the date of transfer;(2) the name and address of the transferor;(3) the name and address of the transferee;(4) the volume of gasoline being transferred;(5) the location of the gasoline at the time of transfer; and(6) the following certification statement: "This product complies with the requirements for Reid vapor pressure specified in Title 30 Texas Administrative Code, §114.301 and may be used in any Texas county requiring gasoline with a maximum RVP of 7.8 pounds per square inch."</content><note type="source"><p>Source Note: The provisions of this §114.306 adopted to be effective July 21, 1999, 24 TexReg 5487; amended to be effective April 27, 2000, 25 TexReg 3535; amended to be effective October 2, 2014, 39 TexReg 7740.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scH/s114.307"><num value="114.307">§114.307</num><heading>Exemptions</heading><content>(a) The following uses are exempt from §§114.301, 114.305, and 114.306 of this title (relating to Control Requirements for Reid Vapor Pressure; Approved Test Methods; and Recordkeeping Requirements):(1) any stationary tank, reservoir, or other container:(A) used exclusively for the fueling of implements of agriculture; or(B) with a nominal capacity of 500 gallons (1,893 liters) or less; and(2) all gasoline solely intended for use as aviation gasoline ("av-gas").(b) Any gasoline that is either in a research, development, or test status; or is sold to petroleum, automobile, engine, or component manufacturers for research, development, or test purposes; or any gasoline to be used by, or under the control of petroleum, additive, automobile, engine, component manufacturers for research, development, or test purposes; or any independent research laboratories or academic institutions for use in research, development, or testing of petroleum, additive, automobile, engine, component products, is exempt from the provisions of this division (relating to Gasoline Volatility), provided that:(1) the gasoline is kept segregated from non-exempt product, and the person possessing the product maintains documentation identifying the product as research, development, or testing fuel, as applicable, and stating that it is to be used only for research, development, or testing purposes; and(2) the gasoline is not sold, dispensed, or transferred, or offered for sale, dispensing, or transfer from a retail fuel dispensing facility. It shall also not be sold, dispensed, or transferred, or offered for sale, dispensing, or transfer from a wholesale purchaser-consumer facility, unless such facility is associated with fuel, automotive, or engine research, development, or testing.(c) Any gasoline that is refined, sold, dispensed, transferred, or offered for sale, dispensing, or transfer as competition racing fuel is exempted from the provisions of this division, provided that:(1) the fuel is kept segregated from non-exempt fuel, and the party possessing the fuel for the purposes of refining, selling, dispensing, transferring, or offering for sale, dispensing, or transfer as competition racing fuel maintains documentation identifying the product as racing fuel, restricted for non-highway use in competition racing motor vehicles or engines;(2) each pump stand at a regulated facility, from which the fuel is dispensed, is labeled with the applicable fuel identification and use restrictions described in paragraph (1) of this subsection; and(3) the fuel is not sold, dispensed, transferred, or offered for sale, dispensing, or transfer for highway use in a motor vehicle.(d) The owner or operator of a retail fuel dispensing outlet is exempt from all requirements of §114.306 of this title, except §114.306(b) of this title.(e) Gasoline that does not meet the requirements of §114.301 of this title is not prohibited from being transferred, placed, stored, and/or held within the affected counties so long as it is not ultimately used to power:(1) a gasoline-powered spark-ignition engine in a motor vehicle in the counties listed in §114.309 of this title (relating to Affected Counties), except for that used in conjunction with purposes stated in subsections (a) - (c) of this section; or(2) a gasoline-powered spark-ignition engine in non-road equipment in the counties listed in §114.309 of this title, except for that used in conjunction with purposes stated in subsections (a) - (c) of this section.</content><note type="source"><p>Source Note: The provisions of this §114.307 adopted to be effective July 21, 1999, 24 TexReg 5487; amended to be effective April 27, 2000, 25 TexReg 3535; amended to be effective October 4, 2001, 26 TexReg 7565; amended to be effective October 2, 2014, 39 TexReg 7740.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scH/s114.309"><num value="114.309">§114.309</num><heading>Affected Counties</heading><content>All affected persons in the following counties shall be in compliance with §§114.301 and 114.305 - 114.307 of this title (relating to Control Requirements for Reid Vapor Pressure; Approved Test Methods; Recordkeeping Requirements; and Exemptions) no later than the dates specified in §114.301(b) of this title: Anderson, Angelina, Aransas, Atascosa, Austin, Bastrop, Bee, Bell, Bexar, Bosque, Bowie, Brazos, Burleson, Caldwell, Calhoun, Camp, Cass, Cherokee, Colorado, Comal, Cooke, Coryell, De Witt, Delta, Falls, Fannin, Fayette, Franklin, Freestone, Goliad, Gonzales, Grayson, Gregg, Grimes, Guadalupe, Harrison, Hays, Henderson, Hill, Hood, Hopkins, Houston, Hunt, Jackson, Jasper, Karnes, Lamar, Lavaca, Lee, Leon, Limestone, Live Oak, Madison, Marion, Matagorda, McLennan, Milam, Morris, Nacogdoches, Navarro, Newton, Nueces, Panola, Polk, Rains, Red River, Refugio, Robertson, Rusk, Sabine, San Augustine, San Jacinto, San Patricio, Shelby, Smith, Somervell, Titus, Travis, Trinity, Tyler, Upshur, Van Zandt, Victoria, Walker, Washington, Wharton, Williamson, Wilson, and Wood.</content><note type="source"><p>Source Note: The provisions of this §114.309 adopted to be effective July 21, 1999, 24 TexReg 5487; amended to be effective April 27, 2000, 25 TexReg 3535; amended to be effective October 4, 2001, 26 TexReg 7565; amended to be effective October 2, 2014, 39 TexReg 7740; amended to be effective December 21, 2023, 48 TexReg 7574.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scH/s114.312"><num value="114.312">§114.312</num><heading>Low Emission Diesel Standards</heading><content>(a) No person shall sell, offer for sale, supply, or offer for supply, dispense, transfer, allow the transfer, place, store, or hold any diesel fuel in any stationary tank, reservoir, or other container in the counties listed in §114.319 of this title (relating to Affected Counties and Compliance Dates) that may ultimately be used to power a diesel fueled compression-ignition internal combustion engine in the affected counties that does not meet the low emission diesel fuel (LED) standards specified in paragraphs (1) and (2) of this subsection.(1) The maximum aromatic hydrocarbon content of LED is 10% by volume per gallon.(2) The minimum cetane number for LED is 48.(b) Subsection (a) of this section does not apply to a sale, offer for sale, or supply of diesel fuel to a producer where the producer further processes the diesel fuel at the producer's production facility prior to any subsequent sale, offer for sale, or supply of the final blend of LED.(c) Diesel fuel that has been produced to comply with all specifications for a Certified Diesel Fuel Formulation as approved by an executive order by the California Air Resources Board for compliance with California diesel fuel regulations that were in effect as of August 4, 2005, except for those approved for small refinery compliance, or diesel fuel that has been produced to meet all specifications for diesel fuel under regulations adopted by the California Air Resources Board that were in effect as of August 4, 2005, except for those approved for small refinery compliance, may be used to satisfy the requirements of subsection (a) of this section.(d) Alternative diesel fuel formulations that have been approved by the executive director as prescribed in §114.315(c) of this title (relating to Approved Test Methods) may be used to satisfy the requirements of subsection (a) of this section.</content><note type="source"><p>Source Note: The provisions of this §114.312 adopted to be effective May 11, 2000, 25 TexReg 4030; amended to be effective January 18, 2001, 26 TexReg 328; amended to be effective March 31, 2005, 30 TexReg 1773; amended to be effective May 17, 2006, 31 TexReg 3881; amended to be effective September 13, 2012, 37 TexReg 7181.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scH/s114.313"><num value="114.313">§114.313</num><heading>Designated Alternative Limits</heading><content>(a) Diesel fuel that has been produced to meet all of the designated alternative limits specified in subsection (b) of this section may be used to satisfy the low emission diesel fuel (LED) requirements specified in §114.312(a) of this title (relating to Low Emission Diesel Standards).(b) The designated alternative limits per gallon of LED are set forth in paragraphs (1) - (6) of this subsection:(1) An aromatic hydrocarbon content of no greater than 21.0% by weight;(2) A polycyclic aromatic hydrocarbon content of no greater than 3.5% by weight;(3) An American Petroleum Institute gravity index of no less than 36.9;(4) A cetane number of no less than 53;(5) A nitrogen content of no greater than 500 parts per million by weight (ppmw); and(6) A sulfur content of no greater than 15 ppmw.(c) Compliance with the designated alternative limits specified in subsection (b) of this section must be determined by the test methods specified in §114.315(a) of this title (relating to Approved Test Methods).</content><note type="source"><p>Source Note: The provisions of this §114.313 adopted to be effective September 13, 2012, 37 TexReg 7181.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scH/s114.314"><num value="114.314">§114.314</num><heading>Registration of Diesel Producers and Importers</heading><content>(a) Each producer and importer that sells, offers for sale, supplies, offers to supply, dispenses, transfers, allows the transfer, places, stores, or holds any diesel fuel in any stationary tank, reservoir, or other container in the affected counties listed in §114.319 of this title (relating to Affected Counties and Compliance Dates) that may ultimately be used to power a diesel fueled compression-ignition internal combustion engine in the affected counties listed in §114.319 of this title shall register with the executive director by no later than 45 days after the first date the diesel fuel from its production facility or import facility is made available for use in the affected counties listed in §114.319 of this title.(b) Registration must be submitted on forms prescribed by the executive director and must include, at a minimum, the information specified in paragraphs (1) - (5) of this subsection:(1) the legal business name of the producer or importer, mailing address, agency assigned customer reference number, and contact information for the producer or importer, or their authorized representative;(2) a statement of the estimated total number of barrels of low emission diesel fuel that the producer or importer is planning to produce or import in the 12 months following the date of registration that the producer or importer intends to sell, offer for sale, supply, or offer to supply from its production facility or import facility for use in the counties listed in §114.319 of this title;(3) the physical address, agency assigned regulated entity reference number, and contact information for each production facility or import facility that is used to produce or import diesel fuel that may be sold, offered for sale, supplied, or offered for supply for use in the affected counties listed in §114.319 of this title;(4) any other information determined by the executive director to be necessary to identify the persons responsible for the adequacy of diesel supply in the affected counties; and(5) a signed statement of consent by the registrant that the executive director is permitted to collect samples and access documentation and records at any production facility or import facility used to produce or import diesel fuel that may ultimately be used to power a diesel fueled compression-ignition internal combustion engine in the counties listed in §114.319 of this title.(c) The executive director shall maintain a listing of all registered producers and importers.</content><note type="source"><p>Source Note: The provisions of this §114.314 adopted to be effective May 11, 2000, 25 TexReg 4030 ; amended to be effective January 18, 2001, 26 TexReg 328; amended to be effective October 18, 2001, 26 TexReg 8096; amended to be effective March 31, 2005, 30 TexReg 1773; amended to be effective September 13, 2012, 37 TexReg 7181.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scH/s114.315"><num value="114.315">§114.315</num><heading>Approved Test Methods</heading><content>(a) Compliance with the diesel fuel content requirements of this division must be determined by applying the appropriate test methods and procedures specified in the active version of American Society for Testing and Materials (ASTM) D975 (Standard Specification for Diesel Fuel Oils), or by applying the supplementary test methods and procedures specified in paragraphs (1) - (5) of this subsection, as appropriate. (1) The aromatic hydrocarbon content may be determined by the active version of ASTM Test Method D5186 (Standard Test Method for Determination of Aromatic Content and Polynuclear Aromatic Content of Diesel Fuels and Aviation Turbine Fuels by Supercritical Fluid Chromatography). The following correlation equation must be used to convert the supercritical fluid chromatography (SFC) results in mass percent to volume percent: aromatic hydrocarbons expressed in percent by volume = 0.916 x (aromatic hydrocarbons expressed in percent by weight) + 1.33. (2) The polycyclic aromatic hydrocarbon (also referred to as polynuclear aromatic hydrocarbons or PAH) content may be determined by the active version of ASTM Test Method D5186 (Standard Test Method for Determination of Aromatic Content and Polynuclear Aromatic Content of Diesel Fuels and Aviation Turbine Fuels by Supercritical Fluid Chromatography). The correlation equation specified in paragraph (1) of this subsection must be used to convert the SFC results in mass percent to volume percent. (3) The nitrogen content may be determined by the active version of ASTM Test Method D4629 (Standard Test Method for Trace Nitrogen in Liquid Petroleum Hydrocarbons by Syringe/Inlet Oxidative Combustion and Chemiluminescence Detection). (4) The American Petroleum Institute (API) gravity index may be determined by the active version of ASTM Test Method D287 (Standard Test Method for API Gravity of Crude Petroleum and Petroleum Products (Hydrometer Method)). (5) The distillation temperatures may be determined by the active version of ASTM Test Method D86 (Standard Test Method for Distillation of Petroleum Products at Atmospheric Pressure). (b) Modifications to the testing methods and procedures in this section may be approved by the executive director after consultation with and agreement by the United States Environmental Protection Agency (EPA). (c) The executive director, upon application, may approve alternative diesel fuel formulations as prescribed under §114.312(d) of this title (relating to Low Emission Diesel Standards) that may be used to satisfy the low emission diesel fuel (LED) requirements specified in §114.312(a) of this title if the applicant has demonstrated to the satisfaction of the executive director and the EPA in accordance with the procedures specified in paragraph (1) of this subsection that the alternative diesel fuel formulation will achieve equivalent or better reductions in emissions of nitrogen oxides (NOX ). (1) The applicant shall submit documentation demonstrating that the applicable fuel properties of the alternative diesel fuel formulation demonstrate at least a 5.5% reduction in NOX emissions from on-road diesel fuel for the year 2007, and at least a 6.2% reduction in NOX emissions from non-road diesel fuel, using the Unified Model as described in the EPA staff discussion document, Strategies and Issues in Correlating Diesel Fuel Properties with Emissions, Publication Number EPA420-P-01-001, published July 2001. (2) For alternative diesel fuel formulations that achieve emission reductions as demonstrated in accordance with the criteria specified in paragraph (1) of this subsection, the applicant shall provide documentation to the executive director upon application that includes the cetane number, aromatic hydrocarbon content, specific gravity, and the temperature corresponding to the 50% point on the distillation curve in degrees Fahrenheit (T50) of the alternative diesel fuel formulation for which the applicant is requesting approval as determined in accordance with the test methods and procedures specified in subsection (a) of this section. (3) If the alternative diesel fuel formulation has been demonstrated to the satisfaction of the executive director and the EPA to achieve comparable or better reductions in emissions of NOX in accordance with paragraph (1) of this subsection, then the executive director may issue a notice of approval indicating that the alternative diesel fuel formulation may be used to satisfy the LED requirements of §114.312(a) of this title. (A) The approval notification must identify the specifications of the alternative diesel fuel formulation as approved under this subsection by listing the cetane number, aromatic hydrocarbon content, specific gravity, and the temperature corresponding to the 50% point on the distillation curve in degrees Fahrenheit (T50) of the alternative diesel fuel formulation as documented in paragraph (2) of this subsection. (B) The approval notification must assign an identification number to the specific approved alternative diesel fuel formulation. (d) Approval of any additive-based alternative diesel fuel formulation as prescribed under this section prior to April 1, 2012, and thereafter, is subject to revocation if the executive director determines that the composition of the additive component of the approved alternative diesel fuel formulation has been altered so that it no longer matches the composition of the additive as originally approved. If the executive director revokes the approval of an additive-based alternative diesel formulation, producers using the alternative diesel formulation to satisfy the LED requirements of §114.312(a) of this title must discontinue all use of the alternative diesel formulation within 45 days of the date of revocation. (e) All alternative diesel fuel formulations approved by the executive director as prescribed under this section prior to April 1, 2012, may continue to be used to comply with the provisions specified in this division.</content><note type="source"><p>Source Note: The provisions of this §114.315 adopted to be effective May 11, 2000, 25 TexReg 4030; amended to be effective January 18, 2001, 26 TexReg 328; amended to be effective March 31, 2005, 30 TexReg 1773; amended to be effective May 17, 2006, 31 TexReg 3881; amended to be effective September 13, 2012, 37 TexReg 7181.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scH/s114.316"><num value="114.316">§114.316</num><heading>Monitoring, Recordkeeping, and Reporting Requirements</heading><content>(a) Every producer or importer that has elected to sell, offer for sale, supply, or offer for supply low emission diesel fuel (LED) produced at its production facility or imported from its import facility in compliance with the requirements specified in §§114.312, 114.313, or 114.318 of this title (relating to Low Emission Diesel Standards; Designated Alternative Limits; Alternative Emission Reduction Plan, respectively) that may ultimately be used in counties listed in §114.319 of this title (relating to Affected Counties and Compliance Dates) is subject to the applicable requirements of this section.(b) Each producer or importer of LED must keep records that declare or demonstrate that each final blend of LED conforms to the basic LED standards as specified in §114.312(a) of this title, to the designated alternative limits as specified in §114.313 of this title, to the specifications of a Certified Diesel Fuel Formulation or a diesel fuel as accepted under §114.312(c) of this title, to an alternative diesel fuel formulation as approved under §114.312(d) of this title, or to an alternative emission reduction plan as approved under §114.318 of this title.(c) Each producer or importer of LED shall collect and analyze a representative sample of each final blend of LED produced at its production facility or imported from its import facility for the fuel properties specified in paragraphs (1) - (5) of this subsection.(1) The aromatic hydrocarbon content and cetane number must be analyzed for LED produced or imported in accordance with §114.312(a) of this title using the test methods specified in §114.315(a) of this title (relating to Approved Test Methods).(2) The aromatic hydrocarbon content, cetane number, and/or any other appropriate components specified in the applicable California diesel fuel regulations or the executive order issued by the California Air Resources Board (CARB) must be analyzed for LED produced or imported in accordance with §114.312(c) of this title using the test methods specified in §114.315(a) of this title and if appropriate, the test methods as listed in the executive order issued by CARB.(3) The appropriate components of the alternative diesel fuel formulation as listed in the approval notification issued by the executive director under §114.315 of this title must be analyzed for LED produced or imported in accordance with §114.312(d) of this title using the methodologies specified in §114.315(a) of this title and if appropriate, the test methods as listed in the approval notification.(4) The aromatic hydrocarbon content, polycyclic aromatic hydrocarbon content, American Petroleum Institute (API) gravity index, cetane number, nitrogen content, and sulfur content must be analyzed for LED produced or imported in accordance with §114.313 of this title using the test methods specified in §114.315(a) of this title.(5) The aromatic hydrocarbon content, cetane number, specific gravity, and the temperature corresponding to the 50% point on the distillation curve in degrees Fahrenheit (T50) must be analyzed for LED produced in accordance with §114.318(b)(1) of this title using the test methods specified in §114.315(a) of this title.(6) If the final blend of LED required to be analyzed in paragraphs (2) and (3) of this subsection is produced at a production facility with the use of an additive as it is being loaded directly to tanks, pipelines, tank ships, railway tank cars, tank trailers, or fuel delivery trucks, the producer or importer may satisfy the sampling requirements of this subsection by recording the volume of additive and the volume of diesel additized in each final blend of LED as it is produced at the production facility. The analysis of the volumetric record must demonstrate that sufficient additive was added to the final blend of LED to maintain the appropriate additive concentration per gallon as listed in the approval notification issued by the executive director or in the executive order issued by the CARB.(7) The producer or importer shall maintain records showing the sample date, identity of the final blend sampled, identity of the container or other vessel sampled, volume of the final blend sampled, and the fuel properties of each sample as analyzed in accordance with paragraphs (1) - (6) of this subsection as appropriate, for two years from the date each sample was collected.(8) All LED produced by the producer at its production facilities or imported by the importer from its import facilities and not tested by the producer or importer as required by this subsection will be deemed to exceed the standards specified in §114.312 of this title, unless the producer or importer demonstrates that the LED meets those standards and limits.(d) A producer or importer subject to the requirements of this division shall provide to the executive director any records required to be maintained by the producer or importer in accordance with this section within 15 days of a written request from the executive director, if the request is received before expiration of the period during which the records are required to be maintained. Whenever a producer or importer fails to provide records regarding a final blend of LED in accordance with the requirements of this section, the final blend of LED will be presumed to have been sold by the producer or importer in violation of the standards specified in §114.312 of this title, to which the producer or importer has elected to be subject.(e) All parties in the distribution chain (i.e., producers, importers, bulk plants, common carriers, and retail fuel dispensing outlets) that supply diesel fuel subject to the requirements specified in §114.312 of this title that may ultimately be used in counties listed in §114.319 of this title shall maintain copies or records of product transfer documents for a minimum of two years and shall upon request, make such copies or records available to representatives of the commission, United States Environmental Protection Agency, or local air pollution agency having jurisdiction in the area. The product transfer documents must contain, at a minimum, the information specified in paragraphs (1) - (7) of this subsection:(1) the date of transfer;(2) the name and address of the transferor;(3) the name and address of the transferee;(4) in the case of transferors or transferees who are producers or importers, the registration number of those persons as assigned by the commission under §114.314 of this title (relating to Registration of Diesel Producers and Importers);(5) the volume of diesel fuel being transferred;(6) the location of the diesel fuel at the time of transfer; and(7) one of the certification statements specified in subparagraphs (A), (B), or (C) of this paragraph, as appropriate:(A) "This product is Texas low emission diesel and may be used as fuel for diesel engines in any Texas county requiring the use of low emission diesel fuel."; or(B) "This product may not be used as fuel for diesel engines in any Texas county requiring the use of low emission diesel fuel without further processing."; or(C) "This product has been produced under a TCEQ approved alternative emission reduction plan and may be used as fuel for diesel engines in any Texas county requiring the use of low emission diesel fuel."(f) Each producer or importer of LED subject to subsection (a) of this section shall provide a quarterly summation report to the executive director no later than the 45th day following the end of each calendar quarter and must maintain a record of the information submitted in the quarterly report for two years from the date of each report. The quarterly report must be submitted on forms prescribed by the executive director and must include, at a minimum, the information specified in paragraphs (1) - (3) of this subsection for each of the producer's production facilities or for each of the importer's import facilities:(1) the total volume of LED produced or imported during the calendar quarter that is subject to the requirements of this section, and if the volume of LED required to be reported in this paragraph was produced with the use of an additive, the total volume of additive used to produce the LED must also be included in the quarterly report;(2) a reconciliation of the records required in subsection (c)(7) of this section for each sample collected and analyzed during the calendar quarter; and(3) any other information determined by the executive director to be necessary to demonstrate that the producer or importer has produced or imported LED that has satisfied the requirements specified in §§114.312, 114.313, or 114.318 of this title.(g) Each producer or importer electing to sell, offer for sale, supply, or offer to supply LED in accordance with §114.312(c) of this title shall provide to the executive director, as applicable, a copy of the executive order issued by the CARB for the Certified Diesel Fuel Formulation used to produce the LED or documentation demonstrating that the LED has been produced to meet all specifications for diesel fuel under regulations adopted by the CARB, except for those approved for small refinery compliance, that were in effect as of August 4, 2005.</content><note type="source"><p>Source Note: The provisions of this §114.316 adopted to be effective May 11, 2000, 25 TexReg 4030; amended to be effective January 18, 2001, 26 TexReg 328; amended to be effective March 31, 2005, 30 TexReg 1773; amended to be effective May 17, 2006, 31 TexReg 3881; amended to be effective September 13, 2012, 37 TexReg 7181.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scH/s114.317"><num value="114.317">§114.317</num><heading>Exemptions to Low Emission Diesel Requirements</heading><content>(a) Any diesel fuel subject to the low emission diesel (LED) requirements specified in §114.312 of this title (relating to Low Emission Diesel Standards) that is either in a research, development, or test status; or is sold to petroleum, automobile, engine, or component manufacturers for research, development, or test purposes; or any diesel fuel to be used by, or under the control of, petroleum, additive, automobile, engine, or component manufacturers for research, development, or test purposes, is exempted from the provisions of this division (relating to Low Emission Diesel), provided that:(1) the diesel fuel is kept segregated from non-exempt product, and the person possessing the product maintains documentation identifying the product as research, development, or testing fuel, as applicable, and stating that it is to be used only for research, development, or testing purposes; and(2) the diesel fuel is not sold, dispensed, or transferred, or offered for sale, dispensing, or transfer from a retail fuel dispensing facility. It shall also not be sold, dispensed, or transferred, or offered for sale, dispensing, or transfer from a wholesale purchaser-consumer facility, unless such facility is associated with fuel, automotive, or engine research, development, or testing.(b) Any diesel fuel subject to the LED requirements specified in §114.312 of this title that is refined, sold, dispensed, transferred, or offered for sale, dispensing, or transfer as competition racing fuel is exempted from the provisions of this division, provided that:(1) the fuel is kept segregated from non-exempt fuel, and the party possessing the fuel for the purposes of refining, selling, dispensing, transferring, or offering for sale, dispensing, or transfer as competition racing fuel maintains documentation identifying the product as racing fuel, restricted for non-highway use in competition racing motor vehicles or engines;(2) each pump stand at a regulated facility, from which the fuel is dispensed, is labeled with the applicable fuel identification and use restrictions described in paragraph (1) of this subsection; and(3) the fuel is not sold, dispensed, transferred, or offered for sale, dispensing, or transfer for highway use in a motor vehicle.(c) The owner or operator of a retail fuel dispensing outlet is exempt from all requirements of §114.316 of this title (relating to Monitoring, Recordkeeping, and Reporting Requirements) except §114.316(e) of this title.(d) Diesel fuel that does not meet the LED requirements of §114.312 of this title is not prohibited from being transferred, placed, stored, and/or held within the affected counties so long as it is not ultimately used to power a diesel fueled compression-ignition internal combustion engine operating in a motor vehicle or in non-road equipment in the counties listed in §114.319 of this title (relating to Affected Counties and Compliance Dates), except for that used in conjunction with purposes stated in subsections (a) and (b) of this section.</content><note type="source"><p>Source Note: The provisions of this §114.317 adopted to be effective May 11, 2000, 25 TexReg 4030; amended to be effective January 18, 2001, 26 TexReg 328; amended to be effective May 17, 2006, 31 TexReg 3881; amended to be effective September 13, 2012, 37 TexReg 7181.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scH/s114.318"><num value="114.318">§114.318</num><heading>Alternative Emission Reduction Plan</heading><content>(a) Diesel fuel that is sold, offered for sale, supplied, or offered for supply by a producer who submits an alternative emission reduction plan in accordance with subsection (b) of this section that is approved by the executive director will be considered in compliance with the low emission diesel (LED) requirements of §114.312(a) of this title (relating to Low Emission Diesel Standards). (b) The alternative emission reduction plan must demonstrate, using the Unified Model as described in the United States Environmental Protection Agency (EPA) staff discussion document, Strategies and Issues in Correlating Diesel Fuel Properties with Emissions, Publication Number EPA420-P-01-001, published July 2001, that the average fuel properties of all on-road diesel fuel produced in any given calendar quarter that is sold, offered for sale, supplied, or offered for supply by the producer for use in the affected counties listed in §114.319 of this title (relating to Affected Counties and Compliance Dates) achieve at least a 5.5% reduction in nitrogen oxides (NOX ) emissions for the year 2007; and the average fuel properties of all non-road diesel produced in any given calendar quarter that is sold, offered for sale, supplied, or offered for supply by the producer for use in the affected counties listed in §114.319 of this title achieve at least a 6.2% reduction in NOX emissions. (c) An alternative emission reduction plan must be approved by the executive director prior to the use of that plan for compliance with the requirements of this section. (d) The executive director shall approve or disapprove alternative emission reduction plans that have been submitted by producers in accordance with subsection (b) of this section within 45 days of submittal. (e) Alternative emission reduction plans submitted to the executive director in accordance with subsection (b) of this section must contain sufficient documentation to validate the average diesel fuel properties used to satisfy the requirements specified in subsection (b) of this section.</content><note type="source"><p>Source Note: The provisions of this §114.318 adopted to be effective October 18, 2001, 26 TexReg 8096; amended to be effective March 31, 2005, 30 TexReg 1773; amended to be effective May 17, 2006, 31 TexReg 3881; amended to be effective May 31, 2007, 32 TexReg 2865; amended to be effective September 13, 2012, 37 TexReg 7181.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scH/s114.319"><num value="114.319">§114.319</num><heading>Affected Counties and Compliance Dates</heading><content>(a) All affected persons in the counties listed in subsection (b) of this section shall continue to comply with §§114.312 - 114.317 of this title (relating to Low Emission Diesel Standards; Designated Alternate Limits; Registration of Diesel Producers and Importers; Approved Test Methods; Monitoring, Recordkeeping, and Reporting Requirements; and Exemptions to Low Emission Diesel Requirements) as required by subsection (d) of this section, as applicable, for any diesel fuel as defined in §114.6(6)(A) of this title (relating to Low Emission Fuel Definitions) that may ultimately be used to power a diesel-fueled compression-ignition internal combustion engine in a motor vehicle or in non-road equipment in any of the counties listed in subsection (b) of this section.(b) The counties specified in paragraphs (1) - (4) of this subsection are subject to subsection (a) of this section:(1) Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant;(2) Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller;(3) Hardin, Jefferson, and Orange; and(4) Anderson, Angelina, Aransas, Atascosa, Austin, Bastrop, Bee, Bell, Bexar, Bosque, Bowie, Brazos, Burleson, Caldwell, Calhoun, Camp, Cass, Cherokee, Colorado, Comal, Cooke, Coryell, De Witt, Delta, Falls, Fannin, Fayette, Franklin, Freestone, Goliad, Gonzales, Grayson, Gregg, Grimes, Guadalupe, Harrison, Hays, Henderson, Hill, Hood, Hopkins, Houston, Hunt, Jackson, Jasper, Karnes, Lamar, Lavaca, Lee, Leon, Limestone, Live Oak, Madison, Marion, Matagorda, McLennan, Milam, Morris, Nacogdoches, Navarro, Newton, Nueces, Panola, Polk, Rains, Red River, Refugio, Robertson, Rusk, Sabine, San Jacinto, San Patricio, San Augustine, Shelby, Smith, Somervell, Titus, Travis, Trinity, Tyler, Upshur, Van Zandt, Victoria, Walker, Washington, Wharton, Williamson, Wilson, Wise, and Wood.(c) All affected persons in the counties listed in subsection (b) of this section shall continue to comply with §§114.312 - 114.317 of this title as required by subsection (d) of this section, as applicable, for any diesel fuel as defined in §114.6(6)(B) of this title that may ultimately be used to power a diesel-fueled compression-ignition internal combustion engine located on a marine vessel in any of the counties listed in subsection (b)(2) of this section.(d) For all counties affected by this section, the final compliance dates for control requirements are given within the subsections relating to counties and compliance schedules for provisions specified in this division if the final compliance date of any provision is after the date of adoption of the current revision to this division. If the compliance dates are not specified for any provision, the compliance date is past and all affected persons must be and remain in compliance with the provision as of the original compliance date.</content><note type="source"><p>Source Note: The provisions of this §114.319 adopted to be effective May 11, 2000, 25 TexReg 4030; amended to be effective January 18, 2001, 26 TexReg 328; amended to be effective October 18, 2001, 26 TexReg 8096; amended to be effective March 31, 2005, 30 TexReg 1773; amended to be effective June 14, 2007, 32 TexReg 3173; amended to be effective September 13, 2012, 37 TexReg 7181.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c114/scI"><num value="I">SUBCHAPTER I</num><heading>NON-ROAD ENGINES</heading><section identifier="/us/state/tx/tac/t30/p1/c114/scI/s114.420"><num value="114.420">§114.420</num><heading>Definitions</heading><content>Unless specifically defined in the TCAA or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following words and terms, when used in this division, shall have the following meanings, unless the context clearly indicates otherwise.(1) The definitions found in Title 13, California Code of Regulations, Chapter 9, §2431, concerning Definitions, as effective on November 18, 1999, are hereby incorporated by reference.(2) Non-road, large spark-ignition (LSI) engine - Any engine that produces a gross horsepower (hp) of 25 hp or greater, or is designed (e.g. through fueling, engine calibrations, valve timing, engine speed modifications, etc.) to produce 25 hp or greater. For engine families which have models at or greater than 25 hp, as well as models below 25 hp, only the models at or above 25 hp are considered LSI engines. The engine operating characteristics are significantly similar to the theoretical Otto combustion cycle, with the primary means of controlling power output being the limit on the amount of air that is throttled into the combustion chamber of the engine. LSI engines or alternate fuel-powered LSI internal combustion engines are designed for, but not limited to, powering forklift trucks, sweepers, generators, industrial equipment, and other miscellaneous applications.(3) New non-road, large spark-ignition (LSI) engine - Non-road, LSI model year 2004 and subsequent engines, and all equipment and vehicles that use such an engine.</content><note type="source"><p>Source Note: The provisions of this §114.420 adopted to be effective May 11, 2000, 25 TexReg 4074.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scI/s114.421"><num value="114.421">§114.421</num><heading>Emission Specifications</heading><content>(a) The provisions of this division shall apply to new non-road, large spark-ignition (LSI) engines as defined in §114.420 of this title (relating to Definitions).(b) Exhaust emissions from new non-road, LSI engines manufactured for sale, sold, or offered for sale, or that are introduced, delivered or imported for introduction into commerce in the State of Texas shall not exceed the requirements of Title 13, California Code of Regulations, Chapter 9 (13 CCR 9), §2433(b), concerning Exhaust Emission Standards and Test Procedures -- Off-Road Large Spark-Ignition Engines, as effective on November 18, 1999.(c) New non-road, LSI engines operated in the State of Texas shall not exceed the requirements of 13 CCR 9, §2433(b).(d) Beginning on January 1, 2004, a new non-road, LSI engine, not including non-road equipment, intended solely to replace an engine in a piece of non-road equipment that was originally produced with an engine manufactured prior to the applicable implementation date as described in §114.429 of this title shall not be subject to the emissions requirements of subsection (b) of this section provided that the requirements of 13 CCR 9, §2433(e), have been met.</content><note type="source"><p>Source Note: The provisions of this §114.421 adopted to be effective May 11, 2000, 25 TexReg 4074; amended to be effective January 18, 2001, 26 TexReg 388.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scI/s114.422"><num value="114.422">§114.422</num><heading>Control Requirements</heading><content>(a) The emissions standards for new non-road, large spark-ignition (LSI) engines as certified for use in the State of California in accordance with Title 13, California Code of Regulations, Chapter 9 (13 CCR 9), Article 4.5, concerning Off-Road Large Spark-Ignition Engines, §§2430 - 2439, as effective on November 18, 1999, are hereby incorporated by reference.(b) The emission control label requirements for new non-road, LSI engines found in 13 CCR 9, §2434, concerning Emission Control Labels -- 2001 and Later Off-Road Large Spark-Ignition Engines, as effective on November 18, 1999, are hereby incorporated by reference.(c) The warranty statement and requirements for new non-road, LSI engines found in 13 CCR 9, §2435 and §2436, concerning Defects Warranty Requirements for 2001 and Later Off-Road Large Spark-Ignition Engines, and Emission Control System Warranty Statement, as effective on November 18, 1999, are hereby incorporated by reference.(d) In the event that a new non-road, LSI engine is recalled in the State of California under 13 CCR 9, §2439, concerning Procedures for In-Use Engine Recalls for Large Off-Road Spark-Ignition Engines with an Engine Displacement Greater than 1.0 Liter, the manufacturer shall take identical corrective action to remedy the cause of the recall.</content><note type="source"><p>Source Note: The provisions of this §114.422 adopted to be effective May 11, 2000, 25 TexReg 4074.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scI/s114.427"><num value="114.427">§114.427</num><heading>Exemptions</heading><content>(a) All engines and equipment that fall within the scope of preemption as specified in the FCAA, §209(e)(1), as amended on November 15, 1990 (42 United States Code, §7543(e)(1)), and Title 40 Code of Federal Regulations, §85.1604, concerning Adoption of California Standards by Other States, as amended on December 30, 1997, are specifically excluded from the requirements of this division.(b) The following new non-road, large spark-ignition engines are exempt from the requirements of this division:(1) engines operated on or in any device used exclusively upon stationary rails or tracks;(2) engines used to propel marine vessels;(3) internal combustion engines attached to a foundation at a specific location for at least 12 consecutive months;(4) non-road, recreational vehicles and snowmobiles; and(5) stationary or transportable gas turbines used for power generation.</content><note type="source"><p>Source Note: The provisions of this §114.427 adopted to be effective May 11, 2000, 25 TexReg 4074.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scI/s114.429"><num value="114.429">§114.429</num><heading>Affected Counties and Compliance Schedules</heading><content>(a) Beginning with model year 2004, but no later than January 1, 2004, all sales of new non-road, large spark-ignition (LSI) engines in the State of Texas shall comply with §114.421(b) of this title (relating to Emissions Specifications) and §114.422 of this title (relating to Control Requirements).(b) Beginning January 1, 2004, new non-road, LSI engines as defined in §114.420 of this title (relating to Definitions) which are used in the State of Texas shall comply with §114.421(c) of this title.</content><note type="source"><p>Source Note: The provisions of this §114.429 adopted to be effective May 11, 2000, 25 TexReg 4074; amended to be effective January 18, 2001, 26 TexReg 388.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c114/scJ"><num value="J">SUBCHAPTER J</num><heading>OPERATIONAL CONTROLS FOR MOTOR VEHICLES</heading><section identifier="/us/state/tx/tac/t30/p1/c114/scJ/s114.510"><num value="114.510">§114.510</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act) or in the rules of the commission, the terms used in this subchapter have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by Texas Health and Safety Code, Chapter 382; §3.2 of this title (relating to Definitions); §101.1 of this title (relating to Definitions); and §114.1 of this title (relating to Definitions), the following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.(1) Idle--The operation of an engine in the operating mode where the engine is not engaged in gear, where the engine operates at a speed at the revolutions per minute specified by the engine or vehicle manufacturer for when the accelerator is fully released, and there is no load on the engine.(2) Local government--A city, county, municipality, or political subdivision of the state.(3) Motor vehicle--Any self-propelled device powered by an internal combustion engine and designed to operate with four or more wheels in contact with the ground, in or by which a person or property is or may be transported, and is required to be registered under Texas Transportation Code, §502.002, excluding vehicles registered under §502.006(c).(4) Primary propulsion engine--A gasoline or diesel-fueled internal combustion engine attached to a motor vehicle that provides the power to propel the motor vehicle into motion and maintain motion.</content><note type="source"><p>Source Note: The provisions of this §114.510 adopted to be effective December 9, 2004, 29 TexReg 11355.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scJ/s114.511"><num value="114.511">§114.511</num><heading>Applicability</heading><content>The provisions of §114.512 and §114.517 of this title (relating to Control Requirements for Motor Vehicle Idling; and Exemptions) are applicable only within the jurisdiction of a local government that has signed a Memorandum of Agreement with the commission to delegate enforcement of the provisions of this division to that local government.</content><note type="source"><p>Source Note: The provisions of this §114.511 adopted to be effective December 9, 2004, 29 TexReg 11355.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scJ/s114.512"><num value="114.512">§114.512</num><heading>Control Requirements for Motor Vehicle Idling</heading><content>No person shall cause, suffer, allow, or permit the primary propulsion engine of a motor vehicle to idle for more than five consecutive minutes when the motor vehicle, as defined in §114.510 of this title (relating to Definitions), is not in motion.</content><note type="source"><p>Source Note: The provisions of this §114.512 adopted to be effective December 9, 2004, 29 TexReg 11355; amended to be effective May 17, 2006, 31 TexReg 3900; amended to be effective February 21, 2008, 33 TexReg 1345; amended to be effective August 11, 2011, 36 TexReg 4972.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scJ/s114.517"><num value="114.517">§114.517</num><heading>Exemptions</heading><content>The provisions of §114.512 of this title (relating to Control Requirements for Motor Vehicle Idling) do not apply to:(1) a motor vehicle that has a gross vehicle weight rating of 14,000 pounds or less;(2) a motor vehicle that has a gross vehicle weight rating greater than 14,000 pounds and that is equipped with a 2008 or subsequent model year heavy-duty diesel engine or liquefied or compressed natural gas engine that has been certified by the United States Environmental Protection Agency or another state environmental agency to emit no more than 30 grams of nitrogen oxides emissions per hour when idling;(3) the primary propulsion engine of a motor vehicle being used to provide air conditioning or heating necessary for employee health or safety in an armored vehicle while the employee remains inside the vehicle to guard the contents or while the vehicle is being loaded or unloaded;(4) a motor vehicle forced to remain motionless because of traffic conditions over which the operator has no control;(5) a motor vehicle being used by the United States military, national guard, or reserve forces, or as an emergency or law enforcement motor vehicle;(6) the primary propulsion engine of a motor vehicle providing a power source necessary for mechanical operation, other than propulsion, and/or passenger compartment heating, or air conditioning;(7) the primary propulsion engine of a motor vehicle being operated for maintenance or diagnostic purposes;(8) the primary propulsion engine of a motor vehicle being operated solely to defrost a windshield;(9) the primary propulsion engine of a motor vehicle that is being used to supply heat or air conditioning necessary for passenger comfort and safety in vehicles intended for commercial or public passenger transportation, or passenger transit operations, in which case idling up to a maximum of 30 minutes is allowed;(10) the primary propulsion engine of a motor vehicle being used to provide air conditioning or heating necessary for employee health or safety while the employee is using the vehicle to perform an essential job function related to roadway construction or maintenance;(11) the primary propulsion engine of a motor vehicle being used as airport ground support equipment;(12) the owner of a motor vehicle rented or leased to a person that operates the vehicle and is not employed by the owner; or(13) a motor vehicle when idling is necessary to power a heater or air conditioner while a driver is using the vehicle's sleeper berth for a government-mandated rest period and is not within two miles of a facility offering external heating and air conditioning connections at a time when those connections are available.</content><note type="source"><p>Source Note: The provisions of this §114.517 adopted to be effective December 9, 2004, 29 TexReg 11355; amended to be effective May 17, 2006, 31 TexReg 3900; amended to be effective February 21, 2008, 33 TexReg 1345; amended to be effective August 11, 2011, 36 TexReg 4972; amended to be effective August 30, 2012, 37 TexReg 6619.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c114/scK"><num value="K">SUBCHAPTER K</num><heading>MOBILE SOURCE INCENTIVE PROGRAMS</heading><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.600"><num value="114.600">§114.600</num><heading>Definitions</heading><content>Unless specifically defined in the TCAA or in the rules of the commission, the terms used in this subchapter have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, §§3.2, 101.1, and 114.1 of this title (relating to Definitions), the following words and terms, when used in this division shall have the following meanings, unless the context clearly indicates otherwise.(1) Incremental costs--The cost difference between the manufacturer's suggested retail price (MSRP) to purchase or lease a new on-road diesel vehicle certified by the EPA to meet the federal emission standards required at the date of its manufacture and the MSRP to purchase or lease a comparable new on-road diesel vehicle certified by the EPA to meet an emission standard at least as stringent as those specified in §114.609 of this title (relating to On-Road Diesel Vehicle Purchase or Lease Incentive Schedule).(2) Lease--The use and control of a new on-road diesel vehicle in accordance with a rental contract for a term of twelve consecutive months or more.(3) Lessee--A person who enters into a lease for a new on-road diesel vehicle.(4) Motor vehicle--A self-propelled device designed for transporting persons or property on a public highway that is required to be registered under Texas Transportation Code, Chapter 502.(5) New on-road diesel vehicle--An on-road diesel that has never been the subject of a first sale as defined under Title 43, Texas Administrative Code, §17.2 (relating to Definitions), either within this state or elsewhere.(6) On-road diesel--An on-road diesel-powered motor vehicle that has a gross vehicle weight rating of 10,000 pounds or more.</content><note type="source"><p>Source Note: The provisions of this §114.600 adopted to be effective September 13, 2001, 26 TexReg 6938.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.601"><num value="114.601">§114.601</num><heading>Applicability</heading><content>(a) The provisions of §§114.600, 114.602, 114.604, and 114.609 of this title (relating to Definitions; On-Road Diesel Vehicle Purchase or Lease Incentive Requirements; On-Road Diesel Purchase or Lease Incentive Reporting Requirements; and On-Road Diesel Vehicle Purchase or Lease Incentive Schedule) apply statewide subject to the availability of funding.(b) A purchase or lease of an on-road diesel motor vehicle is not eligible if it is required by any state or federal law, rule or regulation, memorandum of agreement, or other legally binding document. This subsection does not apply to:(1) an otherwise qualified purchase or lease, regardless of the fact that the state implementation plan assumes that the change in vehicles will occur, if on the date the incentive is awarded the change is not required by any state or federal law, rule or regulation, memorandum of agreement, or other legally binding document; or(2) the purchase or lease of an on-road diesel motor vehicle required only by local law or regulation or by corporate or controlling board policy of a public or private entity.</content><note type="source"><p>Source Note: The provisions of this §114.601 adopted to be effective September 13, 2001, 26 TexReg 6938.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.602"><num value="114.602">§114.602</num><heading>On-Road Diesel Vehicle Purchase or Lease Incentive Requirements</heading><content>(a) The purchase or lease of a new on-road diesel vehicle certified by the EPA to an emissions standard at least as stringent as those specified under §114.609 of this title (relating to On-Road Diesel Vehicle Purchase or Lease Incentive Schedule) shall be eligible for an incentive for the reimbursement of incremental costs not to exceed that specified under §114.609 of this title if the purchaser or lessee of the on-road diesel vehicle agrees to register the vehicle in this state and meets the requirements of this section.(b) Only one incentive will be provided for each eligible new on-road diesel vehicle purchased or leased in the state.(c) The incentive shall be provided to the lessee and not to the purchaser if the on-road diesel vehicle is purchased for the purpose of leasing the on-road diesel vehicle to another person.(d) An incentive for the lease of an eligible new on-road diesel vehicle shall be prorated based on an eight-year lease term.(e) A person eligible to receive an incentive under this section shall sign a certification that the person will operate the on-road diesel vehicle in this state for not less than 75% of the vehicle's annual mileage while owned or leased by the purchaser or lessee and while the purchaser or lessee resides within the state before the reimbursement of incremental costs can occur. The certification must contain, at a minimum:(1) the name, address, telephone number, and proof of identification of the person receiving the incentive;(2) the purchase date, manufacturer, model, model year, vehicle license number, vehicle identification number, gross vehicle weight rating, current odometer reading, and certified emissions standard of the new on-road diesel vehicle for which the incentive has been claimed under subsection (a) of this section; and(3) a copy of the vehicle's registration and purchase invoice, or lease agreement if applicable, to be attached to the certification.</content><note type="source"><p>Source Note: The provisions of this §114.602 adopted to be effective September 13, 2001, 26 TexReg 6938.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.609"><num value="114.609">§114.609</num><heading>On-Road Diesel Vehicle Purchase or Lease Incentive Schedule</heading><content>(a) The incentives provided under §114.602 of this title (relating to On-Road Diesel Vehicle Purchase or Lease Incentive Requirements) for new on-road diesel vehicles manufactured on or after January 1, 2001 until September 30, 2002 shall be based on the following emission standards for oxides of nitrogen (NOx ) and accompanying reimbursement amounts: (1) 2.5 grams per brake horsepower-hour (g/bhp-hr) of NOx or less is eligible for up to $15,000; and (2) 1.5 g/bhp-hr of NOx or less is eligible for up to $25,000. (b) The incentives provided under §114.602 of this title for new on-road diesel vehicles manufactured on or after October 1, 2002 until September 30, 2006 shall be based on the following emission standards for NOx and accompanying reimbursement amounts: (1) 1.2 g/bhp-hr of NOx or less is eligible for up to $15,000; and (2) 0.5 g/bhp-hr of NOx or less is eligible for up to $25,000. (c) After evaluating new technologies and after public notice and comment, the commission, in consultation with the Texas Emission Reduction Plan Advisory Board, may change the incentive emissions standards established under this section to improve the ability of the program to achieve its goals.</content><note type="source"><p>Source Note: The provisions of this §114.609 adopted to be effective September 13, 2001, 26 TexReg 6938.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.610"><num value="114.610">§114.610</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the commission, the terms used in this division have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA and §§3.2, 101.1, and 114.1 of this title (relating to Definitions), the following words and terms, when used in this division shall have the following meanings, unless the context clearly indicates otherwise.(1) First sale--Has the meaning as defined under Texas Transportation Code, §501.002.(2) Lease--The use and control of a new light-duty motor vehicle in accordance with a rental contract for a term of 12 consecutive months or more.(3) Lessee--A person who enters into a lease for a new light-duty motor vehicle.(4) Light-duty motor vehicle--A motor vehicle with a gross vehicle weight rating of 10,000 pounds or less.(5) Motor vehicle--A self-propelled device designed for transporting persons or property on a public highway that is required to be registered under Texas Transportation Code, Chapter 502.(6) New light-duty motor vehicle--A light-duty motor vehicle that has never been the subject of a first sale.</content><note type="source"><p>Source Note: The provisions of this §114.610 adopted to be effective April 26, 2018, 43 TexReg 2429.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.611"><num value="114.611">§114.611</num><heading>Applicability</heading><content>(a) The provisions of this division apply statewide subject to the availability of funding.(b) A purchase or lease of a new light-duty motor vehicle is not eligible if it is required by any state or federal law, rule or regulation, memorandum of agreement, or other legally binding document. This subsection does not apply to:(1) an otherwise qualified purchase or lease, regardless of the fact that the state implementation plan assumes that the change in vehicles will occur, if on the date the incentive is awarded the change is not required by any state or federal law, rule or regulation, memorandum of agreement, or other legally binding document; or(2) the purchase or lease of a new light-duty motor vehicle required only by local law or regulation or by corporate or controlling board policy of a public or private entity.</content><note type="source"><p>Source Note: The provisions of this §114.611 adopted to be effective April 26, 2018, 43 TexReg 2429.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.612"><num value="114.612">§114.612</num><heading>Light-Duty Motor Vehicle Purchase or Lease Incentive Requirements</heading><content>(a) The purchaser or lessee of a new light-duty motor vehicle powered by compressed natural gas, liquefied petroleum gas, or hydrogen fuel cell or other electric drive may be eligible for the incentive specified in subsection (b) or (c) of this section if the vehicle meets the requirements specified in paragraph (1) or (2) of this subsection and is listed on the list of eligible vehicles provided to the commission as specified under §114.613 of this title (relating to Manufacturer's Report). By August 1 of each year this division is in effect and appropriations are available to fund this program the commission will publish on its website a list of the eligible vehicles provided to the commission as specified under §114.613 of this title. Eligible vehicles include:(1) a new light-duty motor vehicle powered by compressed natural gas or liquefied petroleum gas that:(A) has four wheels;(B) was originally manufactured to comply with and has been certified by an original equipment manufacturer or intermediate or final state vehicle manufacturer as complying with, or has been altered to comply with, federal motor vehicle safety standards, state emissions regulations, and any additional state regulations applicable to vehicles powered by compressed natural gas or liquefied petroleum gas;(C) was manufactured for use primarily on public streets, roads, and highways;(D) has a dedicated or bi-fuel compressed natural gas or liquefied petroleum gas fuel system installed prior to first sale or installed in Texas within 500 miles of operation of the vehicle following first sale, and with a range of at least 125 miles as estimated, published, and updated by the United States Environmental Protection Agency; and(E) has, as applicable, a:(i) compressed natural gas fuel system that complies with the 2013 (or newer) National Fire Protection Association (NFPA) 52 Vehicular Gaseous Fuel Systems Code and American National Standard for Basic Requirements for Compressed Natural Gas Vehicle Fuel Containers, commonly cited as "ANSI/CSA NGV2"; or(ii) liquefied petroleum gas fuel system that complies with the 2011 (or newer) NFPA 58 Liquefied Petroleum Gas Code and Section VII of the 2013 (or newer) American Society of Mechanical Engineers Boiler and Pressure Vessel Code; or(2) a new light-duty motor vehicle powered by electric drive that:(A) has four wheels;(B) was manufactured for use primarily on public streets, roads, and highways;(C) the powertrain has not been modified from the original manufacturer's specifications;(D) has a maximum speed capability of at least 55 miles per hour; and(E) is propelled to a significant extent by an electric motor that draws electricity from a hydrogen fuel cell or from a battery that:(i) has a capacity of not less than four kilowatt hours; and(ii) is capable of being recharged from an external source of electricity.(b) A person who purchases or leases a new light-duty motor vehicle powered by compressed natural gas or liquefied petroleum gas eligible for an incentive under subsection (a) of this section may be eligible to receive a $5,000 incentive.(c) A person who purchases or leases a new light-duty motor vehicle powered by a hydrogen fuel cell or other electric drive eligible for an incentive under subsection (a) of this section may be eligible to receive a $2,500 incentive.(d) To be eligible for the incentives under subsection (b) or (c) of this section, the purchaser or lessee must meet the following criteria:(1) acquired the eligible vehicle after the date established by the commission in the application solicitation;(2) completes the application for the Light-Duty Vehicle Purchase or Lease Incentive, providing all required information; and(3) signs a certification that the purchaser or lessee will register and operate the light-duty motor vehicle in this state for not less than one year.(e) Incentives must be applied for using the forms developed and provided by the commission and must include the verification of purchase or lease as may be required by the commission.(f) Only one incentive will be provided for each eligible new light-duty motor vehicle purchased or leased in the state.(g) The incentive shall be provided to the lessee and not to the purchaser if the eligible new light-duty motor vehicle is purchased for the purpose of leasing the light-duty motor vehicle to another person.(h) An incentive for the lease of an eligible new light-duty motor vehicle shall be prorated based on a three-year lease term. A person who leases an eligible new light-duty motor vehicle may qualify for 33.3% of the full incentive with a one-year lease, 66.6% of the full incentive with a two-year lease, and 100% of the full incentive with a three-year lease. The incentive will only be prorated based on a full-year lease.</content><note type="source"><p>Source Note: The provisions of this §114.612 adopted to be effective April 26, 2018, 43 TexReg 2429.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.613"><num value="114.613">§114.613</num><heading>Manufacturer's Report</heading><content>(a) In order for a manufacturer to ensure that its vehicles are included in the list of eligible vehicles to be published by the commission on its website, a manufacturer of new light-duty motor vehicles, an intermediate or final state vehicle manufacturer, or a manufacturer of compressed natural gas or liquefied petroleum gas systems shall provide to the executive director, or the executive director's designee, a list of the new light-duty motor vehicle models or compressed natural gas or liquefied petroleum gas systems, and the new light-duty motor vehicle models on which the systems are approved for installation, that the manufacturer intends to sell in this state during that model year that are certified to meet the standards listed under §114.612(a) of this title (relating to Light-Duty Motor Vehicle Purchase or Lease Incentive Requirements). The list must contain for each light-duty motor vehicle or natural gas or liquefied petroleum gas system listed:(1) the vehicle manufacturer name, vehicle model, and vehicle model year;(2) the intermediate or final state vehicle manufacturer name, if applicable;(3) the compressed natural gas or liquefied petroleum gas system manufacturer name, system model, and system model year, if applicable;(4) the engine displacement, qualifying fuel type, gross vehicle weight rating, and engine or vehicle family name as listed on the Certificate of Conformity issued by the United States Environmental Protection Agency;(5) the compressed natural gas or liquefied petroleum gas conversion system engine or vehicle family name, if applicable;(6) certification by the manufacturer that the vehicle and, if applicable, the compressed natural gas or liquefied petroleum gas system comply with the standards of this division; and(7) other information as may be requested by the commission.(b) The list required by subsection (a) of this section must be submitted to the executive director, or the executive director's designee, upon request initially and then no later than July 1 of each year preceding the new vehicle model year.(c) A manufacturer of new light-duty motor vehicles, an intermediate or final state vehicle manufacturer, or a manufacturer of compressed natural gas or liquefied petroleum gas systems may supplement the list required by subsection (a) of this section to include additional new light-duty motor vehicle models or compressed natural gas or liquefied petroleum gas systems the manufacturer intends to sell in this state during the model year.</content><note type="source"><p>Source Note: The provisions of this §114.613 adopted to be effective April 26, 2018, 43 TexReg 2429.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.620"><num value="114.620">§114.620</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the commission, the terms used in this subchapter have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA and §§3.2, 101.1, and 114.1 of this title (relating to Definitions), the following words and terms, when used in this division shall have the following meanings, unless the context clearly indicates otherwise. (1) Cost-effectiveness--The total dollar amount expended divided by the total number of tons of nitrogen oxides emissions reduction attributable to that expenditure. In calculating cost-effectiveness, one-time grants of money at the beginning of a project shall be annualized using a time value of public funds or discount rate determined for each project by the commission, taking into account the interest rate on bonds, interest earned by state funds, and other factors the commission considers appropriate. (2) Guidelines--Texas Emissions Reduction Plan: Guidelines for Emissions Reduction Incentive Grants Program (RG-388) adopted by the commission under Texas Health and Safety Code, §386.053, as amended. (3) Incremental cost--The cost of an applicant's project less a baseline cost that would otherwise be incurred by an applicant in the normal course of business and may include added lease or fuel costs as well as additional capital costs. (4) Motor vehicle--A self-propelled device designed for transporting persons or property on a public highway that is required to be registered under Texas Transportation Code, Chapter 502. (5) Non-road diesel--A vehicle or piece of equipment, excluding a motor vehicle or on-road diesel, that is powered by a non-road engine, including: non-road non-recreational equipment and vehicles; construction equipment; locomotives; marine vessels; and other high-emitting diesel engine categories. (6) Non-road engine--An internal combustion engine that is in or on a piece of equipment that is self-propelled or that propels itself and performs another function, excluding a vehicle that is used solely for competition, or a piece of equipment that is intended to be propelled while performing its function, or a piece of equipment designed to be and capable of being carried or moved from one location to another. (7) On-road diesel--An on-road diesel-powered motor vehicle that has a gross vehicle weight rating of 8,500 pounds or more.(8) Qualifying fuel--Any liquid or gaseous fuel or additives registered or verified by the United States Environmental Protection Agency that is ultimately dispensed into a motor vehicle or on-road or non-road diesel that provides reductions of nitrogen oxides emissions beyond reductions required by state or federal law. (9) Repower--To replace an old engine powering an on-road or non-road diesel with a new engine; a used engine; a remanufactured engine; or electric motors, drives, or fuel cells. (10) Retrofit--To equip an engine and fuel system with new emissions-reducing parts or technology verified by the United States Environmental Protection Agency after manufacture of the original engine and fuel system. (11) Small business--A business owned by a person who: (A) owns and operates not more than five vehicles, one of which is: (i) an on-road diesel; or (ii) a non-road diesel; and (B) has owned the on-road or non-road diesel for more than two years. (12) Stationary engine--A machine used in non-mobile applications that converts fuel into mechanical motion, including turbines and other internal combustion devices.</content><note type="source"><p>Source Note: The provisions of this §114.620 adopted to be effective September 13, 2001, 26 TexReg 6945; amended to be effective February 17, 2004, 29 TexReg 1363; amended to be effective October 12, 2006, 31 TexReg 8375; amended to be effective March 18, 2010, 35 TexReg 2194; amended to be effective April 26, 2018, 43 TexReg 2442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.621"><num value="114.621">§114.621</num><heading>Applicability</heading><content>Any person that owns or leases, or intends to own or lease, one or more on-road or non-road diesels that operate, or will operate, within counties listed in §114.629 of this title (relating to Applicable Counties and Implementation Schedule) may apply for a grant under the diesel emissions reduction incentive program. Subject to the criteria included in the commission's Texas Emissions Reduction Plan: Guidelines for Emissions Reduction Incentive Grants Program (RG-388), a person other than the owner or lessee may also apply for and receive a grant.</content><note type="source"><p>Source Note: The provisions of this §114.621 adopted to be effective September 13, 2001, 26 TexReg 6945; amended to be effective February 17, 2004, 29 TexReg 1363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.622"><num value="114.622">§114.622</num><heading>Incentive Program Requirements</heading><content>(a) Eligible projects include:(1) purchase or lease of on-road and non-road diesels;(2) emissions-reducing retrofit projects for on-road or non-road diesels;(3) emissions-reducing repower projects for on-road or non-road diesels;(4) purchase and use of emissions-reducing add-on equipment for on-road or non-road diesels;(5) development and demonstration of practical, low-emissions retrofit technologies, repower options, and advanced technologies for on-road or non-road diesels with lower nitrogen oxides (NOX ) emissions;(6) use of qualifying fuel;(7) implementation of infrastructure projects;(8) replacement of on-road and non-road diesels with newer on-road and non-road diesels; and(9) other projects that have the potential to reduce anticipated NOX emissions from diesel engines.(b) For a proposed project as listed in subsection (a) of this section, other than a project involving a marine vessel or engine, a project involving non-road equipment used for natural gas recovery purposes, a project involving replacement of a motor vehicle, or a project involving the purchase or lease of a motor vehicle, not less than 55% of vehicle miles traveled or hours of operation projected for the five years immediately following the award of a grant must be projected to take place in a nonattainment area or affected county of this state. The commission may also allow vehicle travel on highways and roadways, or portions of a highway or roadway, designated by the commission and located outside a nonattainment area or affected county to count towards the percentage of use requirement.(c) For a proposed project involving a marine vessel or engine, the vessel or engine must be operated in the intercoastal waterways or bays adjacent to a nonattainment area or affected county of this state for not less than 55% of time over the lifetime of the project.(d) For a proposed motor vehicle replacement, purchase, or lease project, the period used to determine the emissions reductions and cost-effectiveness of each replacement, purchase, or lease activity included in the project must extend for five years or more, or 400,000 miles, whichever occurs earlier. Not less than 55% of the vehicle miles traveled projected for the period used to determine the emissions reductions must be projected to take place in a nonattainment area or affected county of this state. The commission may also allow vehicle travel on highways and roadways, or portions of a highway or roadway, designated by the commission and located outside of a nonattainment county or affected county to count towards the percentage of use requirement. (e) For a proposed project that includes a replacement of equipment or a repower, the old equipment or engine must be recycled or scrapped provided, however, that the executive director may allow permanent removal from the state of Texas in specific grants where the applicant has provided sufficient assurances that the old locomotive will not be returned to the state of Texas.(f) For a proposed project to replace a motor vehicle, the vehicle and engine must be decommissioned by crushing the vehicle and engine, by making a hole in the engine block and permanently destroying the frame of the vehicle, or by another method approved by the executive director that permanently removes the vehicle and engine from operation in this state. For a proposed project to repower a motor vehicle, the engine being replaced must be decommissioned in a manner consistent with the requirements for decommissioning an engine as part of a vehicle replacement project. The executive director shall allow an applicant for a motor vehicle replacement or repower project to propose an alternative method for complying with the requirements of this subsection.(g) For a project to replace a motor vehicle, the vehicle being replaced may have been owned, leased, or otherwise commercially financed by the applicant. The applicant must have a legal right to replace and recycle or scrap the vehicle and engine before a grant is awarded for that project.(h) The commission may set cost-effectiveness limits as needed to ensure the best use of available funds. The commission may also base project selection decisions on additional measures to evaluate the effectiveness of projects in reducing NOX emissions in relation to the funds to be awarded.(i) The executive director may waive eligibility requirements established under subsections (b) - (f) of this section on a finding of good cause, which may include a waiver of any ownership and use requirements established for replacement of a motor vehicle for short lapses in registration or operation attributable to economic conditions, seasonal work, or other circumstances. In determining good cause and deciding whether to grant a waiver, the executive director shall ensure that the emissions reductions that will be attributed to the project will still be valid and, where applicable, meet the conditions for assignment for credit to the state implementation plan.(j) Projects funded with a grant from this program may not be used for credit under any state or federal emissions reduction credit averaging, banking, or trading program except as provided under Texas Health and Safety Code, §386.056.(k) A proposed project as listed in subsection (a) of this section is not eligible if it is required by any state or federal law, rule or regulation, memorandum of agreement, or other legally binding document. This subsection does not apply to:(1) an otherwise qualified project, regardless of the fact that the state implementation plan assumes that the change in equipment, vehicles, or operations will occur, if on the date the grant is awarded the change is not required by any state or federal law, rule or regulation, memorandum of agreement, or other legally binding document; or(2) the purchase of an on-road diesel or equipment required only by local law or regulation or by corporate or controlling board policy of a public or private entity.(l) A proposed retrofit, repower, replacement, or add-on equipment project must achieve a reduction in NOX emissions to the level established in the commission's Texas Emissions Reduction Plan: Guidelines for Emissions Reduction Incentive Grants Program (RG-388) for that type of project compared with the baseline emissions adopted by the commission for the relevant engine year and application.(m) If a grant recipient fails to meet the terms of a project grant or the conditions of this division, the executive director can require that the grant recipient return some or all of the grant funding to the extent that emission reductions are not achieved or cannot be demonstrated.(n) Criteria established in the guidelines, including revisions to the commission's Texas Emissions Reduction Plan: Guidelines for Emissions Reduction Incentive Grants Program (RG-388), apply to the Texas Emissions Reduction Plan program. Regardless of the provisions of this chapter, as authorized under Texas Health and Safety Code, §386.053(d), revisions to the guidelines may include, among other changes, adding additional pollutants; adding stationary engines or engines used in stationary applications; adding vehicles and equipment that use fuels other than diesel; or adjusting eligible program categories, as appropriate, to ensure that incentives established under this program achieve the maximum possible emission reductions.</content><note type="source"><p>Source Note: The provisions of this §114.622 adopted to be effective September 13, 2001, 26 TexReg 6945; amended to be effective February 17, 2004, 29 TexReg 1363; amended to be effective October 12, 2006, 31 TexReg 8375; amended to be effective January 6, 2008, 32 TexReg 10005; amended to be effective March 18, 2010, 35 TexReg 2194; amended to be effective April 19, 2012, 37 TexReg 2642; amended to be effective May 1, 2014, 39 TexReg 3432; amended to be effective April 26, 2018, 43 TexReg 2442; amended to be effective July 2, 2020,45TexReg 4353; amended to be effective June 23, 2022, 47 TexReg 3560.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.623"><num value="114.623">§114.623</num><heading>Small Business Incentives</heading><content>(a) This section establishes a process to provide fast and simple access to grants for small businesses, either through a separate small business grant program or through special consideration to small businesses when implementing another program established under this division, in accordance with Texas Health and Safety Code, §386.116, as amended. (b) The grant process for a small business may include: (1) a simplified grant application and other forms; (2) pre-approval or pre-authorization of certain types of grant purchases and expenses; (3) a simplified expense reimbursement process, which may include procedures for the grant recipient to assign grant payments directly to the vendor; and (4) promotional activities and instructional materials targeted at small businesses to encourage them to participate in the program and to inform them of how to access the grants. (c) The commission's Texas Emissions Reduction Plan: Guidelines for Emissions Reduction Incentive Grants Program (RG-388) shall include details to implement methods identified in subsection (b) of this section. (d) Other methods for providing fast and simple access to grants for small businesses may be developed through guidelines.</content><note type="source"><p>Source Note: The provisions of this §114.623 adopted to be effective February 17, 2004, 29 TexReg 1363; amended to be effective April 26, 2018, 43 TexReg 2442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.624"><num value="114.624">§114.624</num><heading>Rebate Grant Process</heading><content>(a) This section establishes a process to provide fast and simple access to rebate grants, in accordance with Texas Health and Safety Code, §386.117.(b) The rebate grant process shall:(1) designate certain types of projects eligible for rebates;(2) project standardized oxides of nitrogen emissions reductions for each designated project type;(3) assign a standardized rebate amount for each designated project type;(4) allow for processing rebates on an ongoing first-come, first-served basis; and(5) consolidate, simplify, and reduce the administrative work for applicants and the commission associated with grant application, contracting, reimbursement, and reporting processes for designated project types.(c) The commission may:(1) award rebate grants as a pilot project for a specific region or may award the grants statewide;(2) limit or expand the designated project types as necessary to further the goals of the program; and(3) administer the rebate grants or may designate another entity to administer the grants.</content><note type="source"><p>Source Note: The provisions of this §114.624 adopted to be effective October 12, 2006, 31 TexReg 8375.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.626"><num value="114.626">§114.626</num><heading>Monitoring, Recordkeeping, and Reporting Requirements</heading><content>Grant recipients must meet the reporting requirements of their grant which must occur no less frequently than annually.</content><note type="source"><p>Source Note: The provisions of this §114.626 adopted to be effective September 13, 2001, 26 TexReg 6945.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.629"><num value="114.629">§114.629</num><heading>Affected Counties and Implementation Schedule</heading><content>(a) Applicable counties in the incentive program include: Bastrop, Bexar, Brazoria, Caldwell, Chambers, Collin, Comal, Dallas, Denton, El Paso, Ellis, Fort Bend, Galveston, Gregg, Guadalupe, Hardin, Harris, Harrison, Hays, Henderson, Hood, Hunt, Jefferson, Johnson, Kaufman, Liberty, Montgomery, Nueces, Orange, Parker, Rockwall, Rusk, San Patricio, Smith, Tarrant, Travis, Upshur, Waller, Williamson, Wilson, Wise, and any other county located within an area of Texas designated as a nonattainment area for ground-level ozone under Federal Clean Air Act, §107(d), as amended.(b) Equipment purchased before September 1, 2001 is not eligible for a grant under this program.</content><note type="source"><p>Source Note: The provisions of this §114.629 adopted to be effective September 13, 2001, 26 TexReg 6945; amended to be effective February 17, 2004, 29 TexReg 1363; amended to be effective May 1, 2014, 39 TexReg 3432; amended to be effective July 2, 2020, 45 TexReg 4353.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.640"><num value="114.640">§114.640</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the commission, the terms used in this subchapter have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms that are defined by the TCAA and §§3.2, 101.1, and 114.1 of this title (relating to Definitions), the following words and terms, when used in this division shall have the following meanings, unless the context clearly indicates otherwise.(1) Diesel exhaust--One or more of the air pollutants emitted from an engine by the combustion of diesel fuel, including particulate matter, nitrogen oxides, volatile organic compounds, air toxics, and carbon monoxide.(2) Incremental cost--The cost of an applicant's project less a baseline cost that would otherwise be incurred by an applicant in the normal course of business. Incremental costs may include added lease or fuel costs as well as additional capital costs.(3) Qualifying fuel--Includes any liquid or gaseous fuel or additive registered or verified by the United States Environmental Protection Agency, other than standard gasoline or diesel, that is ultimately dispensed into a school bus that provides reductions of emissions of particulate matter.(4) Repower--To replace an old engine powering an on-road or non-road diesel with a new engine; a used engine; a remanufactured engine; or electric motors, drives, or fuel cells.(5) Retrofit--To equip an engine and fuel system with new emissions-reducing parts or technology verified by the United States Environmental Protection Agency after manufacture of the original engine and fuel system.</content><note type="source"><p>Source Note: The provisions of this §114.640 adopted to be effective April 17, 2014, 39 TexReg 2898.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.642"><num value="114.642">§114.642</num><heading>Applicability</heading><content>(a) Any school district or charter school in this state that operates one or more diesel-fueled school buses or a transportation system provided by a countywide school district may apply for and receive a grant under the program.(b) The commission may allow a regional planning commission, council of governments, or similar regional planning agency created under Local Government Code, Chapter 391, or a private nonprofit organization to apply for and receive a grant to improve the ability of the program to achieve its goals.</content><note type="source"><p>Source Note: The provisions of this §114.642 adopted to be effective April 17, 2014, 39 TexReg 2898.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.644"><num value="114.644">§114.644</num><heading>Clean School Bus Program Requirements</heading><content>(a) Eligible projects include:(1) diesel oxidation catalysts for school buses built before 1994;(2) diesel particulate filters for school buses built from 1994 to 1998;(3) the purchase and use of emission-reducing add-on equipment for school buses, including devices that reduce crankcase emissions;(4) the use of qualifying fuel;(5) other technologies that the commission finds will bring about significant emissions reductions; and(6) replacement of a pre-2007 model year school bus.(b) The commission may limit funding under a particular funding round to certain areas of the state, types of applicants, and/or types of projects. The commission may place a priority on funding for projects conducted in areas that do not attain certain national ambient air quality standards.(c) Prior to each funding period, the commission may establish priorities and other criteria for reductions in diesel exhaust emissions to be achieved by projects funded during that period, including designation of additional pollutants to be addressed. A proposed project must achieve a reduction in emissions of diesel exhaust compared with the baseline emissions according to the percentage reduction level and other priorities established by the commission. The commission may also establish maximum levels for the funding awarded in relation to the emission reductions projected to be achieved by a project, in order to maximize the use of available funds.(d) A school bus proposed for retrofit must be used on a regular, daily route to and from a school during the school year and have at least five years of useful life remaining unless the applicant agrees to remove the retrofit device at the end of the life of the bus and reinstall the device on another bus.(e) A school bus proposed for replacement must:(1) be of a pre-2007 model year;(2) have been owned and operated by the applicant for at least two years before submission of the grant application;(3) be in good operational condition; and(4) be currently used on a regular, daily route to and from a school during the school year.(f) A school bus proposed for purchase to replace a pre-2007 model year school bus must be of the current model year or the year before the current model year at the time of submission of the grant application.(g) A school bus acquired to replace an existing school bus must be purchased and the grant recipient must agree to own and operate the school bus on a regular, daily route to and from a school during the school year for at least five years after a start date established by the commission, which will be based on the date the commission accepts documentation of the permanent destruction or permanent removal of the school bus being replaced.(h) A school bus replaced under this program must be rendered permanently inoperable by crushing the bus, by making a hole in the engine block and permanently destroying the frame of the bus, or by another method approved by the commission, or be permanently removed from the state to a destination outside of the United States, Canada, or the United Mexican States.(i) An application for a grant under this program is only eligible if it is made on the form provided by the commission and contains the information required by the commission.(j) A recipient of a grant under this division shall use the grant to pay incremental costs of the project for which the grant is made, which may include the reasonable and necessary expenses incurred for the labor needed to install emissions-reducing equipment. The recipient may not use the grant to pay the recipient's administrative expenses.(k) Projects funded with a grant from this program may not be used for credit under any state or federal emissions reduction credit averaging, banking, or trading program except as provided under Texas Health and Safety Code, §386.056.(l) A proposed project as listed in subsection (a) of this section is not eligible if it is required by any state or federal law, rule or regulation, memorandum of agreement, or other legally binding document. This subsection does not apply to an otherwise qualified project, regardless of the fact that the state implementation plan assumes that the change in equipment, vehicles, or operations will occur, if on the date the grant is awarded the change is not required by any state or federal law, rule or regulation, memorandum of agreement, or other legally binding document or the purchase of an on-road diesel or equipment required only by local law or regulation or by corporate or controlling board policy of a public or private entity.(m) If a grant recipient fails to meet the terms of a project grant or the conditions of this division, the executive director can require that the grant recipient return some or all of the grant funding to the extent that emission reductions are not achieved or cannot be demonstrated.</content><note type="source"><p>Source Note: The provisions of this §114.644 adopted to be effective April 17, 2014, 39 TexReg 2898; amended to be effective April 26, 2018, 43 TexReg 2442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.646"><num value="114.646">§114.646</num><heading>Monitoring, Recordkeeping, and Reporting Requirements</heading><content>Grant recipients must meet the monitoring, recordkeeping, and reporting requirements of their grant. Reporting requirements must occur no less frequently than annually.</content><note type="source"><p>Source Note: The provisions of this §114.646 adopted to be effective April 17, 2014, 39 TexReg 2898.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.650"><num value="114.650">§114.650</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the commission, the terms used in this subchapter have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms that are defined by the TCAA and §§3.2, 101.1, and 114.1 of this title (relating to Definitions), the following words and terms, when used in this division will have the following meanings, unless the context clearly indicates otherwise.(1) Agricultural product transportation--The transportation of a raw agricultural product from the place of production using a heavy-duty on-road vehicle to:(A) a nonattainment area;(B) an affected county as defined under Texas Health and Safety Code (THSC), §386.001;(C) a destination inside the clean transportation zone established under THSC, §393.001; or(D) a county adjacent to a county described by subparagraph (B) of this paragraph or that contains an area described by subparagraph (A) or (C) of this paragraph.(2) Alternative fuel--A fuel, other than gasoline or diesel fuel. When used in this division, this definition is limited to the following: electricity, compressed natural gas, liquefied natural gas, hydrogen, propane, or a mixture of fuels containing at least 85% methanol by volume.(3) Eligible entity--Any person or entity with a fleet of 75 or more vehicles that:(A) are registered in Texas; and(B) include at least 10 vehicles that are eligible for replacement.(4) Golf cart--A motor vehicle designed by the manufacturer primarily for transporting persons on a golf course.(5) Heavy-duty vehicle--A motor vehicle with a gross vehicle weight rating greater than 8,500 pounds and containing an engine certified to the United States Environmental Protection Agency's heavy-duty engine standards.(6) Hybrid vehicle--A motor vehicle with at least two different energy converters and two different energy storage systems on board the vehicle for the purpose of propelling the vehicle.(7) Light-duty motor vehicle--A motor vehicle with a gross vehicle weight rating of less than 10,000 pounds and certified to the United States Environmental Protection Agency's light-duty vehicle emission standards.(8) Motor vehicle--A self-propelled device designed for transporting persons or property on a public highway that is required to be registered under Texas Transportation Code, Chapter 502.(9) Neighborhood electric vehicle--A motor vehicle that:(A) is originally manufactured to meet, and does meet, the equipment requirements and safety standards established for "low-speed vehicles" in Federal Motor Vehicle Safety Standard No. 500 (49 Code of Federal Regulations §571.500);(B) is a slow-moving vehicle, as defined by Texas Transportation Code, §547.001 that is able to attain a speed of more than 20 miles per hour but not more than 25 miles per hour in one mile on a paved, level surface;(C) is a four-wheeled motor vehicle;(D) is powered by electricity or alternative power sources;(E) has a gross vehicle weight rating of less than 3,000 pounds; and(F) is not a golf cart.(10) Program--The Texas Clean Fleet Program established under this division.</content><note type="source"><p>Source Note: The provisions of this §114.650 adopted to be effective March 18, 2010, 35 TexReg 2195; amended to be effective April 19, 2012, 37 TexReg 2645; amended to be effective May 1, 2014, 39 TexReg 3435; amended to be effective April 26, 2018, 43 TexReg 2442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.651"><num value="114.651">§114.651</num><heading>Applicability</heading><content>(a) Any eligible entity that will replace 10 or more on-road diesel vehicles within a 12-month period with qualifying vehicles may apply for a grant under the Texas Clean Fleet Program to offset the cost of replacing those vehicles with alternative fuel or hybrid vehicles.(b) Notwithstanding subsection (a) of this section, an entity that submits a grant application for 10 or more qualifying vehicles is eligible to participate in the program even if the commission denies approval for one or more of the vehicles during the application process.(c) The commission may allow a regional planning commission, council of governments, or similar regional planning agency created under Local Government Code, Chapter 391, or a private nonprofit organization to apply for and receive a grant to improve the ability of the program to achieve its goals.</content><note type="source"><p>Source Note: The provisions of this §114.651 adopted to be effective March 18, 2010, 35 TexReg 2195; amended to be effective April 19, 2012, 37 TexReg 2645; amended to be effective April 26, 2018, 43 TexReg 2442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.652"><num value="114.652">§114.652</num><heading>Qualifying Vehicles</heading><content>(a) A qualifying vehicle is one that:(1) is certified to the appropriate current federal emissions standards as determined by the commission;(2) replaces a diesel-powered on-road vehicle of the same weight classification and use; and(3) is a hybrid vehicle or fueled by an alternative fuel.(b) As a condition of receiving a grant the qualifying vehicle must be continuously owned, registered, and operated in Texas by the grant recipient until the earlier of the fifth anniversary of the date of reimbursement of the grant-funded expenses or until the date the vehicle has been in operation for 400,000 miles after the date of reimbursement.(c) A vehicle is not a qualifying vehicle if it:(1) is a neighborhood electric vehicle;(2) has been used as a qualifying vehicle to qualify for a grant under this division for a previous reporting period or by another entity; or(3) has qualified for a similar grant or tax credit in another jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §114.652 adopted to be effective March 18, 2010, 35 TexReg 2195; amended to be effective April 19, 2012, 37 TexReg 2645; amended to be effective April 26, 2018, 43 TexReg 2442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.653"><num value="114.653">§114.653</num><heading>Grant Eligibility</heading><content>(a) To be eligible for a grant under the program a project must result in nitrogen oxide emission reductions of at least 25%, based on:(1) the baseline emission level set by the executive director; and(2) the certified emission rate of the new vehicle or engine.(b) The vehicle being replaced must:(1) be an on-road vehicle that has been owned, leased, or otherwise commercially financed, and registered and operated by the applicant in Texas for at least the two years immediately preceding the submission of a grant application;(2) satisfy any minimum average annual mileage or fuel usage requirements established by the executive director;(3) satisfy any minimum percentage of annual usage requirements established by the executive director; and(4) be in operating condition with at least two years of remaining useful life, as determined in accordance with criteria established by the executive director.(c) At the discretion of the executive director, projects that result in a 25% reduction in other pollutants may be considered eligible for funding under this program.(d) The executive director may establish additional criteria for purposes of prioritizing projects for selection. Such criteria may include, but are not limited to:(1) nonattainment status of the primary location in which the eligible vehicles are used; or(2) cost per ton benefits of the overall emissions being reduced.(e) The executive director may waive the requirements of subsection (b)(1) of this section on a finding of good cause, which may include a waiver for short lapses in registration or operation attributable to economic conditions, seasonal work, or other circumstances. In determining good cause and deciding whether to grant a waiver, the executive director shall ensure that the emissions reductions that will be attributed to the project will still be valid and, where applicable, meet the conditions for assignment for credit to the state implementation plan.(f) In establishing more specific requirements or additional criteria, as authorized under this section, for projects related to agricultural product transportation, the executive director shall use as a determining factor for eligibility for participation in the program established under this division the overall accumulative net reduction in nitrogen oxide emissions in a nonattainment area, an affected county, or the clean transportation zone.</content><note type="source"><p>Source Note: The provisions of this §114.653 adopted to be effective March 18, 2010, 35 TexReg 2195; amended to be effective April 19, 2012, 37 TexReg 2645; amended to be effective May 1, 2014, 39 TexReg 3435; amended to be effective April 26, 2018, 43 TexReg 2442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.654"><num value="114.654">§114.654</num><heading>Usage and Disposition</heading><content>(a) Not less than 75% of the annual use of the qualifying vehicle, either mileage or fuel use as determined by the executive director, must occur in Texas.(b) A vehicle or engine replaced under this program must be rendered permanently inoperable by crushing the vehicle, by making a hole in the engine block and permanently destroying the frame of the vehicle, or by another method approved by the executive director that permanently removes the vehicle from operation in this state. The executive director shall provide a means for an applicant to propose an alternative method for complying with the requirements of this subsection.</content><note type="source"><p>Source Note: The provisions of this §114.654 adopted to be effective March 18, 2010, 35 TexReg 2195; amended to be effective April 19, 2012, 37 TexReg 2645.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.655"><num value="114.655">§114.655</num><heading>Grant Restrictions</heading><content>A recipient of a grant under this division shall use the grant to pay the costs of the project for which the grant is made, which may include the initial cost of the alternative fuel or hybrid vehicle. The recipient shall not use the grant to pay the recipient's administrative expenses.</content><note type="source"><p>Source Note: The provisions of this §114.655 adopted to be effective March 18, 2010, 35 TexReg 2195.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.656"><num value="114.656">§114.656</num><heading>Eligible Grant Amounts</heading><content>(a) The eligible grant amount for each heavy-duty on-road vehicle being replaced is up to 80%, as determined by the executive director, of the total cost for replacement.(b) The eligible grant amount for each light-duty on-road vehicle being replaced is up to 80%, as determined by the executive director, of the total cost for replacement.(c) The executive director may establish more specific standards for determining grant amounts within the maximum percentage of total costs established under this section consistent with the priorities for project selection, including consideration of the federal emission standards for different model years of heavy-duty engines and light-duty vehicles, decisions on pollutants of concern, and other factors that will help implement the project priorities.(d) To be eligible for replacement, vehicles and engines imported into the United States from another country must have met all applicable emissions certification requirements for importation.</content><note type="source"><p>Source Note: The provisions of this §114.656 adopted to be effective March 18, 2010, 35 TexReg 2195; amended to be effective May 1, 2014, 39 TexReg 3435.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.657"><num value="114.657">§114.657</num><heading>Reporting Requirements</heading><content>Grant recipients must meet the reporting requirements of their grant, which must occur no less frequently than annually.</content><note type="source"><p>Source Note: The provisions of this §114.657 adopted to be effective March 18, 2010, 35 TexReg 2195.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.680"><num value="114.680">§114.680</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the commission, the terms used in this division have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms that are defined by the TCAA and §§3.2, 101.1, and 114.1 of this title (relating to Definitions), the following words and terms, when used in this division will have the following meanings, unless the context clearly indicates otherwise.(1) Cargo handling equipment--Any heavy-duty non-road, self-propelled vehicle or land-based equipment used at a seaport or rail yard to lift or move cargo, such as containerized, bulk, or break-bulk goods. Equipment includes, but is not limited to, rubber-tired gantry cranes, yard trucks, top handlers, side handlers, reach stackers, forklifts, loaders, and aerial lifts.(2) Drayage activities--The transport of cargo, such as containerized, bulk, or break-bulk goods.(3) Drayage truck--A heavy-duty on-road or non-road vehicle used for drayage activities and that operates on or transgresses through a seaport or rail yard for the purpose of loading, unloading, or transporting cargo, including transporting empty containers and chassis.(4) Non-road yard truck--A non-road mobile utility vehicle used to transport cargo containers with or without chassis; also known as a utility tractor rig, yard tractor, or terminal tractor.(5) Rail yard--A rail facility where cargo is routinely transferred from drayage truck to train or vice-versa, including structures that are devoted to receiving, handling, holding, consolidating, and loading or delivery of rail-borne cargo.(6) Repower--To replace an old engine powering a vehicle with a new engine, a used engine, or a remanufactured engine, or electric motors, drives, or fuel cells.(7) Seaport--Publicly or privately owned property associated with the primary movement of cargo or materials from ocean-going vessels or barges to shore or vice-versa, including structures and property devoted to receiving, handling, holding, consolidating, and loading or delivery of waterborne shipments. A seaport also includes publicly or privately owned property within a ship channel security district established under Texas Water Code, Chapter 68.</content><note type="source"><p>Source Note: The provisions of this §114.680 adopted to be effective May 1, 2014, 39 TexReg 3438; amended to be effective August 25, 2016, 41 TexReg 6209; amended to be effective April 26, 2018, 43 TexReg 2442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.681"><num value="114.681">§114.681</num><heading>Applicability</heading><content>The provisions of §114.680 and §114.682 of this title (relating to Definitions and Eligible Vehicle Models) apply to the Seaport and Rail Yard Areas Emissions Reduction Program established and implemented under Texas Health and Safety Code, Chapter 386, Subchapter D-1.</content><note type="source"><p>Source Note: The provisions of this §114.681 adopted to be effective May 1, 2014, 39 TexReg 3438; amended to be effective April 26, 2018, 43 TexReg 2442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c114/scK/s114.682"><num value="114.682">§114.682</num><heading>Eligible Vehicle Models</heading><content>(a) Models of drayage trucks eligible for purchase to replace an existing drayage truck under the program include:(1) a heavy-duty on-road vehicle with a gross vehicle weight rating (GVWR) over 26,000 pounds;(2) a non-road yard truck; and(3) other cargo handling equipment.(b) Models of existing drayage trucks eligible for replacement or repower under the program include:(1) a heavy-duty on-road vehicle with a GVWR over 26,000 pounds;(2) a non-road yard truck; and(3) other cargo handling equipment.(c) To be eligible for purchase under this program a drayage truck or cargo handling equipment must:(1) be powered by an electric motor or contain an engine certified to the current federal emissions standards applicable to that type of engine, as determined by the commission; and(2) emit nitrogen oxides at a rate that is at least 25% less than the emissions rate of the engine on the truck or equipment being replaced.(d) To be eligible for purchase under the program an engine or motor repowering a drayage truck or cargo handling equipment must:(1) be powered by electricity or be an engine certified to the current federal emissions standards applicable to that type of engine, as determined by the commission; and(2) emit nitrogen oxides at a rate that is at least 25% less than the emissions rate of the engine being replaced.(e) Unless otherwise determined by the commission, the nitrogen oxides emissions rate of engines replaced or purchased under this program will be based on the emissions standard or family emissions limit to which the engine is certified or, for replacement of an uncontrolled engine, a baseline emissions rate established by the commission.(f) The executive director may place additional limits on vehicle models and engine model years eligible for purchase and replacement under the program for a particular grant round in order to improve the effectiveness and further the goals of the program.</content><note type="source"><p>Source Note: The provisions of this §114.682 adopted to be effective May 1, 2014, 39 TexReg 3438; amended to be effective August 25, 2016, 41 TexReg 6209; amended to be effective April 26, 2018, 43 TexReg 2442.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c115"><num value="115">CHAPTER 115</num><heading>CONTROL OF AIR POLLUTION FROM VOLATILE ORGANIC COMPOUNDS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c115/scA"><num value="A">SUBCHAPTER A</num><heading>DEFINITIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c115/scA/s115.10"><num value="115.10">§115.10</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act, the terms in this chapter have the meanings commonly used in the field of air pollution control. Additionally, the following meanings apply unless the context clearly indicates otherwise. Additional definitions for terms used in this chapter are found in §3.2 and §101.1 of this title (relating to Definitions).(1) Background--The ambient concentration of volatile organic compounds in the air, determined at least one meter upwind of the component to be monitored. Test Method 21 (40 Code of Federal Regulations Part 60, Appendix A) shall be used to determine the background.(2) Beaumont-Port Arthur area--Hardin, Jefferson, and Orange Counties.(3) Bexar County or Bexar County area--An area consisting of Bexar County.(4) Capture efficiency--The amount of volatile organic compounds (VOC) collected by a capture system that is expressed as a percentage derived from the weight per unit time of VOCs entering a capture system and delivered to a control device divided by the weight per unit time of total VOCs generated by a source of VOCs.(5) Carbon adsorption system--A carbon adsorber with an inlet and outlet for exhaust gases and a system to regenerate the saturated adsorbent.(6) Closed-vent system--A system that:(A) is not open to the atmosphere;(B) is composed of piping, ductwork, connections, and, if necessary, flow-inducing devices; and(C) transports gas or vapor from a piece or pieces of equipment directly to a control device.(7) Coaxial system--A type of system consisting of a tube within a tube that requires only one tank opening. The tank opening allows fuel to flow through the inner tube while vapors are displaced through the annular space between the inner and outer tubes.(8) Component--A piece of equipment, including, but not limited to, pumps, valves, compressors, connectors, and pressure relief valves, which has the potential to leak volatile organic compounds.(9) Connector--A flanged, screwed, or other joined fitting used to connect two pipelines or a pipeline and a piece of equipment. The term connector does not include joined fittings welded completely around the circumference of the interface. A union connecting two pipes is considered to be one connector.(10) Continuous monitoring--Any monitoring device used to comply with a continuous monitoring requirement of this chapter will be considered continuous if it can be demonstrated that at least 95% of the required data is captured.(11) Covered attainment counties--Anderson, Angelina, Aransas, Atascosa, Austin, Bastrop, Bee, Bell, Bexar (before January 1, 2025), Bosque, Bowie, Brazos, Burleson, Caldwell, Calhoun, Camp, Cass, Cherokee, Colorado, Comal, Cooke, Coryell, De Witt, Delta, Falls, Fannin, Fayette, Franklin, Freestone, Goliad, Gonzales, Grayson, Gregg, Grimes, Guadalupe, Harrison, Hays, Henderson, Hill, Hood, Hopkins, Houston, Hunt, Jackson, Jasper, Karnes, Lamar, Lavaca, Lee, Leon, Limestone, Live Oak, Madison, Marion, Matagorda, McLennan, Milam, Morris, Nacogdoches, Navarro, Newton, Nueces, Panola, Polk, Rains, Red River, Refugio, Robertson, Rusk, Sabine, San Augustine, San Jacinto, San Patricio, Shelby, Smith, Somervell, Titus, Travis, Trinity, Tyler, Upshur, Van Zandt, Victoria, Walker, Washington, Wharton, Williamson, Wilson, and Wood Counties.(12) Dallas-Fort Worth area--As follows:(A) Collin, Dallas, Denton, and Tarrant Counties for:(i) Subchapter B, Division 5 of this chapter (relating to Municipal Solid Waste Landfills);(ii) Subchapter F, Division 3 of this chapter (relating to Degassing of Storage Tanks, Transport Vessels, and Marine Vessels);(iii) Subchapter F, Division 4 of this chapter (relating to Petroleum Dry Cleaning Systems);(B) Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties for:(i) Subchapter B, Division 4 of this chapter (relating to Industrial Wastewater);(ii) Subchapter D, Division 1 of this chapter (relating to Process Unit Turnaround and Vacuum-Producing Systems in Petroleum Refineries);(iii) Subchapter F, Division 2 of this chapter (relating to Pharmaceutical Manufacturing Facilities); and(C) Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise Counties for all other divisions of this chapter.(13) Dual-point vapor balance system--A type of vapor balance system in which the storage tank is equipped with an entry port for a gasoline fill pipe and a separate exit port for vapor connection.(14) El Paso area--El Paso County.(15) Emergency flare--A flare that only receives emissions during an upset event.(16) External floating roof--A cover or roof in an open-top tank which rests upon or is floated upon the liquid being contained and is equipped with a single or double seal to close the space between the roof edge and tank shell. A double seal consists of two complete and separate closure seals, one above the other, containing an enclosed space between them. For the purposes of this chapter, an external floating roof storage tank that is equipped with a self-supporting fixed roof (typically a bolted aluminum geodesic dome) shall be considered to be an internal floating roof storage tank.(17) Fugitive emission--Any volatile organic compound entering the atmosphere that could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening designed to direct or control its flow.(18) Gasoline bulk plant--A gasoline loading and/or unloading facility, excluding marine terminals, having a gasoline throughput less than 20,000 gallons (75,708 liters) per day, averaged over each consecutive 30-day period. A motor vehicle fuel dispensing facility is not a gasoline bulk plant.(19) Gasoline dispensing facility--A location that dispenses gasoline to motor vehicles and includes retail, private, and commercial outlets.(20) Gasoline terminal--A gasoline loading and/or unloading facility, excluding marine terminals, having a gasoline throughput equal to or greater than 20,000 gallons (75,708 liters) per day, averaged over each consecutive 30-day period.(21) Heavy liquid--Volatile organic compounds that have a true vapor pressure equal to or less than 0.044 pounds per square inch absolute (0.3 kiloPascal) at 68 degrees Fahrenheit (20 degrees Celsius).(22) Highly-reactive volatile organic compound--As follows.(A) In Harris County, one or more of the following volatile organic compounds (VOC): 1,3-butadiene; all isomers of butene (e.g., isobutene (2-methylpropene or isobutylene), alpha-butylene (ethylethylene), and beta-butylene (dimethylethylene, including both cis- and trans-isomers)); ethylene; and propylene.(B) In Brazoria, Chambers, Fort Bend, Galveston, Liberty, Montgomery, and Waller Counties, one or more of the following VOC: ethylene and propylene.(23) Houston-Galveston or Houston-Galveston-Brazoria area--Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties.(24) Incinerator--For the purposes of this chapter, an enclosed control device that combusts or oxidizes volatile organic compound gases or vapors.(25) Internal floating cover or internal floating roof--A cover or floating roof in a fixed roof tank that rests upon or is floated upon the liquid being contained, and is equipped with a closure seal or seals to close the space between the cover edge and tank shell. For the purposes of this chapter, an external floating roof storage tank that is equipped with a self-supporting fixed roof (typically a bolted aluminum geodesic dome) is considered to be an internal floating roof storage tank.(26) Leak-free marine vessel--A marine vessel with cargo tank closures (hatch covers, expansion domes, ullage openings, butterworth covers, and gauging covers) that were inspected prior to cargo transfer operations and all such closures were properly secured such that no leaks of liquid or vapors can be detected by sight, sound, or smell. Cargo tank closures must meet the applicable rules or regulations of the marine vessel's classification society or flag state. Cargo tank pressure/vacuum valves must be operating within the range specified by the marine vessel's classification society or flag state and seated when tank pressure is less than 80% of set point pressure such that no vapor leaks can be detected by sight, sound, or smell. As an alternative, a marine vessel operated at negative pressure is assumed to be leak-free for the purpose of this standard.(27) Light liquid--Volatile organic compounds that have a true vapor pressure greater than 0.044 pounds per square inch absolute (0.3 kiloPascal) at 68 degrees Fahrenheit (20 degrees Celsius), and are a liquid at operating conditions.(28) Liquefied petroleum gas--Any material that is composed predominantly of any of the following hydrocarbons or mixtures of hydrocarbons: propane, propylene, normal butane, isobutane, and butylenes.(29) Low-density polyethylene--A thermoplastic polymer or copolymer comprised of at least 50% ethylene by weight and having a density of 0.940 grams per cubic centimeter or less.(30) Marine loading facility--The loading arm(s), pumps, meters, shutoff valves, relief valves, and other piping and valves that are part of a single system used to fill a marine vessel at a single geographic site. Loading equipment that is physically separate (i.e., does not share common piping, valves, and other loading equipment) is considered to be a separate marine loading facility.(31) Marine loading operation--The transfer of oil, gasoline, or other volatile organic liquids at any affected marine terminal, beginning with the connections made to a marine vessel and ending with the disconnection from the marine vessel.(32) Marine terminal--Any marine facility or structure constructed to transfer oil, gasoline, or other volatile organic liquid bulk cargo to or from a marine vessel. A marine terminal may include one or more marine loading facilities.(33) Metal-to-metal seal--A connection formed by a swage ring that exerts an elastic, radial preload on narrow sealing lands, plastically deforming the pipe being connected, and maintaining sealing pressure indefinitely.(34) Natural gas/gasoline processing--A process that extracts condensate from gases obtained from natural gas production and/or fractionates natural gas liquids into component products, such as ethane, propane, butane, and natural gasoline. The following facilities shall be included in this definition if, and only if, located on the same property as a natural gas/gasoline processing operation previously defined: compressor stations, dehydration units, sweetening units, field treatment, underground storage, liquefied natural gas units, and field gas gathering systems.(35) Petroleum refinery--Any facility engaged in producing gasoline, kerosene, distillate fuel oils, residual fuel oils, lubricants, or other products through distillation of crude oil, or through the redistillation, cracking, extraction, reforming, or other processing of unfinished petroleum derivatives.(36) Polymer or resin manufacturing process--A process that produces any of the following polymers or resins: polyethylene, polypropylene, polystyrene, and styrenebutadiene latex.(37) Pressure relief valve or pressure-vacuum relief valve--A safety device used to prevent operating pressures from exceeding the maximum and minimum allowable working pressure of the process equipment. A pressure relief valve or pressure-vacuum relief valve is automatically actuated by the static pressure upstream of the valve but does not include:(A) a rupture disk; or(B) a conservation vent or other device on an atmospheric storage tank that is actuated either by a vacuum or a pressure of no more than 2.5 pounds per square inch gauge.(38) Printing line--An operation consisting of a series of one or more printing processes and including associated drying areas.(39) Process drain--Any opening (including a covered or controlled opening) that is installed or used to receive or convey wastewater into the wastewater system.(40) Process unit--The smallest set of process equipment that can operate independently and includes all operations necessary to achieve its process objective.(41) Rupture disk--A diaphragm held between flanges for the purpose of isolating a volatile organic compound from the atmosphere or from a downstream pressure relief valve.(42) Shutdown or turnaround--For the purposes of this chapter, a work practice or operational procedure that stops production from a process unit or part of a unit during which time it is technically feasible to clear process material from a process unit or part of a unit consistent with safety constraints, and repairs can be accomplished.(A) The term shutdown or turnaround does not include a work practice that would stop production from a process unit or part of a unit:(i) for less than 24 hours; or(ii) for a shorter period of time than would be required to clear the process unit or part of the unit and start up the unit.(B) Operation of a process unit or part of a unit in recycle mode (i.e., process material is circulated, but production does not occur) is not considered shutdown.(43) Startup--For the purposes of this chapter, the setting into operation of a piece of equipment or process unit for the purpose of production or waste management.(44) Strippable volatile organic compound (VOC)--Any VOC in cooling tower heat exchange system water that is emitted to the atmosphere when the water passes through the cooling tower.(45) Synthetic organic chemical manufacturing process--A process that produces, as intermediates or final products, one or more of the chemicals listed in 40 Code of Federal Regulations §60.489 (October 17, 2000).(46) Tank-truck tank--Any storage tank having a capacity greater than 1,000 gallons, mounted on a tank-truck or trailer. Vacuum trucks used exclusively for maintenance and spill response are not considered to be tank-truck tanks.(47) Transport vessel--Any land-based mode of transportation (truck or rail) equipped with a storage tank having a capacity greater than 1,000 gallons that is used to transport oil, gasoline, or other volatile organic liquid bulk cargo. Vacuum trucks used exclusively for maintenance and spill response are not considered to be transport vessels.(48) True partial pressure--The absolute aggregate partial pressure of all volatile organic compounds in a gas stream.(49) Vapor balance system--A system that provides for containment of hydrocarbon vapors by returning displaced vapors from the receiving vessel back to the originating vessel.(50) Vapor control system or vapor recovery system--Any control system that utilizes vapor collection equipment to route volatile organic compounds (VOC) to a control device that reduces VOC emissions.(51) Vapor-tight--Not capable of allowing the passage of gases at the pressures encountered except where other acceptable leak-tight conditions are prescribed in this chapter.(52) Waxy, high pour point crude oil--A crude oil with a pour point of 50 degrees Fahrenheit (10 degrees Celsius) or higher as determined by the American Society for Testing and Materials Standard D97-66, "Test for Pour Point of Petroleum Oils."</content><note type="source"><p>Source Note: The provisions of this §115.10 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3708; amended to be effective November 1, 1991, 16 TexReg 5837; amended to be effective August 1, 1992, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective April 7, 1998, 23 TexReg 3503; amended to be effective July21,1999, 24 TexReg 5488; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective January 18, 2001, 26 TexReg 493; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg 11623; amended to be effective May 5, 2005, 30 TexReg 2522; amended to be effective December 7, 2006, 31 TexReg 9840; amended to be effective October 2, 2014, 39 TexReg 7745; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective March 26, 2020, 45 TexReg 2003; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c115/scB"><num value="B">SUBCHAPTER B</num><heading>GENERAL VOLATILE ORGANIC COMPOUND SOURCES</heading><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.110"><num value="115.110">§115.110</num><heading>Applicability and Definitions</heading><content>(a) Applicability. Except as specified in §115.111 of this title (relating to Exemptions), this division applies to any storage tank in which volatile organic compounds are placed, stored, or held that is located in:(1) the Beaumont-Port Arthur area, as defined in §115.10 of this title (relating to Definitions);(2) the Bexar County area, as defined in §115.10 of this title;(3) the Dallas-Fort Worth area, as defined in §115.10 of this title;(4) the El Paso area, as defined in §115.10 of this title;(5) the Houston-Galveston-Brazoria area, as defined in §115.10 of this title; and(6) the Bexar County area, as defined in §115.10 of this title; and(7) Aransas, Bexar, Calhoun, Gregg, Matagorda, Nueces, San Patricio, Travis, and Victoria Counties, as defined for covered attainment counties in §115.10 of this title (relating to Definitions).(b) Definitions. Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382) or in §§3.2, 101.1, or 115.10 of this title (relating to Definitions, respectively), the terms in this division have the meanings commonly used in the field of air pollution control. In addition, the following meanings apply in this division unless the context clearly indicates otherwise.(1) Closure device--A piece of equipment that covers an opening in the roof of a fixed roof storage tank and either can be temporarily opened or has a component that provides a temporary opening. Examples of closure devices include, but are not limited to, thief hatches, pressure relief valves, pressure-vacuum relief valves, and access hatches.(2) Deck cover--A device that covers an opening in a floating roof deck. Some deck covers move horizontally relative to the deck (i.e., a sliding cover).(3) Flexible enclosure system--A system that includes all of the following: a flexible device that completely encloses the slotted guidepole and eliminates the hydrocarbon vapor emission pathway from inside the tank through the guidepole slots to the outside air; a guidepole cover at the top of the guidepole; and a well cover positioned at the top of the guidepole well that seals any openings between the well cover and the guidepole (e.g., pole wiper), any openings between the well cover and any other objects that pass through the well cover, and any other openings in the top of the guidepole well.(4) Incompatible liquid--A liquid that is a different chemical compound, a different chemical mixture, a different grade of liquid material, or a fuel with different regulatory specifications provided that the chemical compound, chemical mixture, grade of liquid material, or fuel would be unusable for its intended purpose due to contamination from the previously stored liquid.(5) Internal sleeve emission control system--An emissions control system that includes all of the following: an internal guidepole sleeve that eliminates the hydrocarbon vapor emission pathway from inside the tank through the guidepole slots to the outside air; a guidepole cover at the top of the guidepole; and a well cover positioned at the top of the guidepole well that seals any openings between the well cover and the guidepole (e.g., pole wiper), any openings between the well cover and any other objects that pass through the well cover, and any other openings in the top of the guidepole well.(6) Pipeline breakout station--A facility along a pipeline containing storage vessels used to relieve surges or receive and store crude oil or condensate from the pipeline for reinjection into the pipeline and continued transportation by pipeline or to other facilities.(7) Pole float--A float located inside a guidepole that floats on the surface of the stored liquid. The rim of the float has a wiper or seal that extends to the inner surface of the pole.(8) Pole sleeve--A device that extends from either the cover or the rim of an opening in a floating roof deck to the outer surface of a pole that passes through the opening. The sleeve must extend into the stored liquid.(9) Pole wiper--A seal that extends from either the cover or the rim of an opening in a floating roof deck to the outer surface of a pole that passes through the opening.(10) Slotted guidepole--A guidepole or gaugepole that has slots or holes through the wall of the pole. The slots or holes allow the stored liquid to flow into the pole at liquid levels above the lowest operating level.(11) Storage capacity--The volume of a storage tank as determined by multiplying the internal cross-sectional area of the tank by the average internal height of the tank shell.(12) Storage tank--A stationary vessel, reservoir, or container used to store volatile organic compounds. This definition does not include: components that are not directly involved in the containment of liquids or vapors; subsurface caverns or porous rock reservoirs; or process tanks or vessels.(13) Tank battery--A collection of equipment used to separate, treat, store, and transfer crude oil, condensate, natural gas, and produced water. A tank battery typically receives crude oil, condensate, natural gas, or some combination of these extracted products from several production wells for accumulation and separation prior to transmission to a natural gas plant or petroleum refinery. A collection of storage tanks at a pipeline breakout station, petroleum refinery, or petrochemical plant is not considered to be a tank battery.(14) Vapor recovery unit--A device that transfers hydrocarbon vapors to a fuel liquid or gas system, a sales liquid or gas system, or a liquid storage tank.</content><note type="source"><p>Source Note: The provisions of this §115.110 adopted to be effective June 14, 2007, 32 TexReg 3178; amended to be effective December 29, 2011, 36 TexReg 8862; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.111"><num value="115.111">§115.111</num><heading>Exemptions</heading><content>(a) The following exemptions apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas as defined in §115.10 of this title (relating to Definitions), except as noted in paragraphs (2), (4), (6), (7), and (9) - (11) of this subsection.(1) Except as provided in §115.118 of this title (relating to Recordkeeping Requirements), a storage tank storing volatile organic compounds (VOC) with a true vapor pressure less than 1.5 pounds per square inch absolute (psia) is exempt from the requirements of this division.(2) A storage tank with storage capacity less than 210,000 gallons storing crude oil or condensate prior to custody transfer in the Beaumont-Port Arthur, Bexar County, or El Paso areas, is exempt from the requirements of this division. This exemption no longer applies in the Dallas-Fort Worth area beginning March 1, 2013.(3) A storage tank with a storage capacity less than 25,000 gallons located at a motor vehicle fuel dispensing facility is exempt from the requirements of this division.(4) A welded storage tank in the Beaumont-Port Arthur, Bexar County, El Paso, and Houston-Galveston-Brazoria areas with a mechanical shoe primary seal that has a secondary seal from the top of the shoe seal to the tank wall (a shoe-mounted secondary seal) is exempt from the requirement for retrofitting with a rim-mounted secondary seal if the shoe-mounted secondary seal was installed or scheduled for installation before August 22, 1980.(5) An external floating roof storage tank storing waxy, high pour point crude oils is exempt from any secondary seal requirements of §115.112(a), (d), and (e) of this title (relating to Control Requirements).(6) A welded storage tank in the Beaumont-Port Arthur, Bexar County, El Paso, and Houston-Galveston-Brazoria areas storing VOC with a true vapor pressure less than 4.0 psia is exempt from any external floating roof secondary seal requirement if any of the following types of primary seals were installed before August 22, 1980:(A) a mechanical shoe seal;(B) a liquid-mounted foam seal; or(C) a liquid-mounted liquid filled type seal.(7) A welded storage tank in the Beaumont-Port Arthur, Bexar County, El Paso, and Houston-Galveston-Brazoria areas storing crude oil with a true vapor pressure equal to or greater than 4.0 psia and less than 6.0 psia is exempt from any external floating roof secondary seal requirement if any of the following types of primary seals were installed before December 10, 1982:(A) a mechanical shoe seal;(B) a liquid-mounted foam seal; or(C) a liquid-mounted liquid filled type seal.(8) A storage tank with storage capacity less than or equal to 1,000 gallons is exempt from the requirements of this division.(9) In the Houston-Galveston-Brazoria area, a storage tank or tank battery storing condensate, as defined in §101.1 of this title (relating to Definitions), prior to custody transfer with a condensate throughput exceeding 1,500 barrels (63,000 gallons) per year on a rolling 12-month basis is exempt from the requirement in §115.112(d)(4) or (e)(4)(A) of this title, to control flashed gases if the owner or operator demonstrates, using the test methods specified in §115.117 of this title (relating to Approved Test Methods), that uncontrolled VOC emissions from the individual storage tank, or from the aggregate of storage tanks in a tank battery, are less than 25 tons per year on a rolling 12-month basis.(10) In the Dallas-Fort Worth area, except Wise County, a storage tank or tank battery storing condensate prior to custody transfer with a condensate throughput exceeding 3,000 barrels (126,000 gallons) per year on a rolling 12-month basis is exempt from the requirement in §115.112(e)(4)(B) of this title, to control flashed gases if the owner or operator demonstrates, using the test methods specified in §115.117 of this title, that uncontrolled VOC emissions from the individual storage tank, or from the aggregate of storage tanks in a tank battery, are less than 50 tons per year on a rolling 12-month basis. This exemption no longer applies on November 7, 2025.(11) In the Dallas-Fort Worth area, except in Wise County, on or after November 7, 2025, a storage tank or tank battery storing condensate prior to custody transfer with a condensate throughput exceeding 1,500 barrels (63,000 gallons) per year on a rolling 12-month basis is exempt from the requirement in §115.112(e)(4)(B) of this title, to control flashed gases if the owner or operator demonstrates, using the test methods specified in §115.117 of this title, that uncontrolled VOC emissions from the individual storage tank, or from the aggregate of storage tanks in a tank battery, are less than 25 tons per year on a rolling 12-month basis.(12) In Wise County, prior to July 20, 2021, a storage tank or tank battery storing condensate prior to custody transfer with a condensate throughput exceeding 6,000 barrels (252,000 gallons) per year on a rolling 12-month basis is exempt from the requirement in §115.112(e)(4)(C)(i) of this title, to control flashed gases if the owner or operator demonstrates, using the test methods specified in §115.117 of this title, that uncontrolled VOC emissions from the individual storage tank, or from the aggregate of storage tanks in a tank battery, are less than 100 tons per year on a rolling 12-month basis.(13) In Wise County until November 7, 2025, , a storage tank or tank battery storing condensate prior to custody transfer with a condensate throughput exceeding 3,000 barrels (126,000 gallons) per year on a rolling 12-month basis is exempt from the requirement in §115.112(e)(4)(C)(ii) of this title, to control flashed gases if the owner or operator demonstrates, using the test methods specified in §115.117 of this title, that uncontrolled VOC emissions from the individual storage tank, or from the aggregate of storage tanks in a tank battery, are less than 50 tons per year on a rolling 12-month basis.(14) In Wise County beginning November 7, 2025, a storage tank or tank battery storing condensate prior to custody transfer with a condensate throughput exceeding 1,500 barrels (63,000 gallons) per year on a rolling 12-month basis is exempt from the requirement in §115.112(e)(4)(D) of this title, to control flashed gases if the owner or operator demonstrates, using the test methods specified in §115.117 of this title, that uncontrolled VOC emissions from the individual storage tank, or from the aggregate of storage tanks in a tank battery, are less than 25 tons per year on a rolling 12-month basis.(15) In the Bexar County area beginning January 1, 2025 a storage tank or tank battery storing condensate prior to custody transfer with a condensate throughput exceeding 6,000 barrels (252,000 gallons) per year on a rolling 12-month basis is exempt from the requirement in §115.112(e)(4)(E) of this title, to control flashed gases if the owner or operator demonstrates, using the test methods specified in §115.117 of this title, that uncontrolled VOC emissions from the individual storage tank, or from the aggregate of storage tanks in a tank battery, are less than 100 tons per year on a rolling 12-month basis. of this title, to control flashed gases if the owner or operator demonstrates, using the test methods specified in §115.117 of this title, that uncontrolled VOC emissions from the individual storage tank, or from the aggregate of storage tanks in a tank battery, are less than 100 tons per year on a rolling 12-month basis.(16) In the Bexar County, Dallas-Fort Worth, and Houston-Galveston-Brazoria areas, beginning when compliance is achieved with Division 7 of this subchapter (relating to Oil and Natural Gas Service in Ozone Nonattainment Areas) but no later than its initial §115.183 compliance deadline, a storage tank storing crude oil or condensate that is subject to the compliance requirements of Division 7 of this subchapter is exempt from all requirements in this division.(b) The following exemptions apply in Gregg, Nueces, and Victoria Counties.(1) Except as provided in §115.118 of this title, a storage tank storing VOC with a true vapor pressure less than 1.5 psia is exempt from the requirements of this division.(2) A storage tank with storage capacity less than 210,000 gallons storing crude oil or condensate prior to custody transfer is exempt from the requirements of this division.(3) A storage tank with storage capacity less than 25,000 gallons located at a motor vehicle fuel dispensing facility is exempt from the requirements of this division.(4) A welded storage tank with a mechanical shoe primary seal that has a secondary seal from the top of the shoe seal to the tank wall (a shoe-mounted secondary seal) is exempt from the requirement for retrofitting with a rim-mounted secondary seal if the shoe-mounted secondary seal was installed or scheduled for installation before August 22, 1980.(5) An external floating roof storage tank storing waxy, high pour point crude oils is exempt from any secondary seal requirements of §115.112(b) of this title.(6) A welded storage tank storing VOC with a true vapor pressure less than 4.0 psia is exempt from any external secondary seal requirement if any of the following types of primary seals were installed before August 22, 1980:(A) a mechanical shoe seal;(B) a liquid-mounted foam seal; or(C) a liquid-mounted liquid filled type seal.(7) A welded storage tank storing crude oil with a true vapor pressure equal to or greater than 4.0 psia and less than 6.0 psia is exempt from any external secondary seal requirement if any of the following types of primary seals were installed before December 10, 1982:(A) a mechanical shoe seal;(B) a liquid-mounted foam seal; or(C) a liquid-mounted liquid filled type seal.(8) A storage tank with storage capacity less than or equal to 1,000 gallons is exempt from the requirements of this division.(c) The following exemptions apply in Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties. The exemptions in this subsection no longer apply in Bexar County beginning January 1, 2025.(1) A storage tank storing VOC with a true vapor pressure less than 1.5 psia is exempt from the requirements of this division.(2) Slotted guidepoles installed in a floating roof storage tank are exempt from the provisions of §115.112(c) of this title.(3) A storage tank with storage capacity between 1,000 gallons and 25,000 gallons is exempt from the requirements of §115.112(c)(1) of this title if construction began before May 12, 1973.(4) A storage tank with storage capacity less than or equal to 420,000 gallons is exempt from the requirements of §115.112(c)(3) of this title.(5) A storage tank with storage capacity less than or equal to 1,000 gallons is exempt from the requirements of this division.</content><note type="source"><p>Source Note: The provisions of this §115.111 adopted to be effective December 29, 2011, 36 TexReg 8862; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective March 26, 2020, 45 TexReg 2003; amended to be effective July 21, 2021, 46 TexReg 4313; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.112"><num value="115.112">§115.112</num><heading>Control Requirements</heading><content>(a) The following requirements apply in the Beaumont-Port Arthur, Dallas-Fort Worth, and El Paso areas, as defined in §115.10 of this title (relating to Definitions). The control requirements in this subsection no longer apply in the Dallas-Fort Worth area beginning March 1, 2013.(1) No person shall place, store, or hold in any storage tank any volatile organic compounds (VOC) unless the storage tank is capable of maintaining working pressure sufficient at all times to prevent any vapor or gas loss to the atmosphere or is in compliance with the control requirements specified in Table I(a) of this paragraph for VOC other than crude oil and condensate or Table II(a) of this paragraph for crude oil and condensate.Attached Graphic(2) For an external floating roof or internal floating roof storage tank subject to the provisions of paragraph (1) of this subsection, the following requirements apply.(A) All openings in an internal floating roof or external floating roof except for automatic bleeder vents (vacuum breaker vents) and rim space vents must provide a projection below the liquid surface or be equipped with a cover, seal, or lid. Any cover, seal, or lid must be in a closed (i.e., no visible gap) position at all times except when the device is in actual use.(B) Automatic bleeder vents (vacuum breaker vents) must be closed at all times except when the roof is being floated off or landed on the roof leg supports.(C) Rim vents, if provided, must be set to open only when the roof is being floated off the roof leg supports or at the manufacturer's recommended setting.(D) Any roof drain that empties into the stored liquid must be equipped with a slotted membrane fabric cover that covers at least 90% of the area of the opening.(E) There must be no visible holes, tears, or other openings in any seal or seal fabric.(F) For an external floating roof storage tank, secondary seals must be the rim-mounted type (the seal must be continuous from the floating roof to the tank wall). The accumulated area of gaps that exceed 1/8 inch in width between the secondary seal and storage tank wall may not be greater than 1.0 square inch per foot of tank diameter.(3) Vapor control systems, as defined in §115.10 of this title, used as a control device on any storage tank must maintain a minimum control efficiency of 90%. If a flare is used, it must be designed and operated in accordance with 40 Code of Federal Regulations §60.18(b) - (f) (as amended through December 22, 2008 (73 FR 78209)) and be lit at all times when VOC vapors are routed to the flare.(b) The following requirements apply in Gregg, Nueces, and Victoria Counties.(1) No person shall place, store, or hold in any storage tank any VOC, unless the storage tank is capable of maintaining working pressure sufficient at all times to prevent any vapor or gas loss to the atmosphere or is in compliance with the control requirements specified in Table I(a) in subsection (a)(1) of this section for VOC other than crude oil and condensate or Table II(a) in subsection (a)(1) of this section for crude oil and condensate. If a flare is used as a vapor recovery system, as defined in §115.10 of this title, it must be designed and operated in accordance with 40 Code of Federal Regulations §60.18(b) - (f) (as amended through December 22, 2008 (73 FR 78209)) and be lit at all times when VOC vapors are routed to the flare.(2) For an external floating roof or internal floating roof storage tank subject to the provisions of paragraph (1) of this subsection, the following requirements apply.(A) All openings in an internal floating roof or external floating roof, except for automatic bleeder vents (vacuum breaker vents) and rim space vents, must provide a projection below the liquid surface or be equipped with a cover, seal, or lid. Any cover, seal, or lid must be in a closed (i.e., no visible gap) position at all times, except when the device is in actual use.(B) Automatic bleeder vents (vacuum breaker vents) must be closed at all times except when the roof is being floated off or landed on the roof leg supports.(C) Rim vents, if provided, must be set to open only when the roof is being floated off the roof leg supports or at the manufacturer's recommended setting.(D) Any roof drain that empties into the stored liquid must be equipped with a slotted membrane fabric cover that covers at least 90% of the area of the opening.(E) There must be no visible holes, tears, or other openings in any seal or seal fabric.(F) For an external floating roof storage tank, secondary seals must be the rim-mounted type (the seal shall be continuous from the floating roof to the tank wall). The accumulated area of gaps that exceed 1/8 inch in width between the secondary seal and tank wall may not be greater than 1.0 square inch per foot of tank diameter.(c) The following requirements apply in Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties. The control requirements of this subsection no longer apply for sources located in Bexar County beginning January 1, 2025.(1) No person may place, store, or hold in any storage tank any VOC, other than crude oil or condensate, unless the storage tank is capable of maintaining working pressure sufficient at all times to prevent any vapor or gas loss to the atmosphere or is in compliance with the control requirements specified in Table I(b) of this paragraph for VOC other than crude oil and condensate.Attached Graphic(2) For an external floating roof or internal floating roof storage tank subject to the provisions of paragraph (1) of this subsection, the following requirements apply.(A) There must be no visible holes, tears, or other openings in any seal or seal fabric.(B) All tank gauging and sampling devices must be vapor-tight except when gauging and sampling is taking place.(3) No person in Matagorda or San Patricio Counties shall place, store, or hold crude oil or condensate in any storage tank unless the storage tank is a pressure tank capable of maintaining working pressures sufficient at all times to prevent vapor or gas loss to the atmosphere or is equipped with one of the following control devices, properly maintained and operated:(A) an internal floating roof or external floating roof, as defined in §115.10 of this title. These control devices will not be allowed if the VOC has a true vapor pressure of 11.0 pounds per square inch absolute (psia) or greater. All tank-gauging and tank-sampling devices must be vapor-tight, except when gauging or sampling is taking place; or(B) a vapor control system as defined in §115.10 of this title.(d) The following requirements apply in the Houston-Galveston-Brazoria area, as defined in §115.10 of this title. The requirements in this subsection no longer apply beginning March 1, 2013.(1) No person shall place, store, or hold in any storage tank any VOC unless the storage tank is capable of maintaining working pressure sufficient at all times to prevent any vapor or gas loss to the atmosphere or is in compliance with the control requirements specified in either Table I(a) of subsection (a)(1) of this section for VOC other than crude oil and condensate or Table II(a) of subsection (a)(1) of this section for crude oil and condensate.(2) For an external floating roof or internal floating roof storage tank subject to the provisions of paragraph (1) of this subsection, the following requirements apply.(A) All openings in an internal floating roof or external floating roof as defined in §115.10 of this title except for automatic bleeder vents (vacuum breaker vents), and rim space vents must provide a projection below the liquid surface. All openings in an internal floating roof or external floating roof except for automatic bleeder vents (vacuum breaker vents), rim space vents, leg sleeves, and roof drains must be equipped with a deck cover. The deck cover must be equipped with a gasket in good operating condition between the cover and the deck. The deck cover must be closed (i.e., no gap of more than 1/8 inch) at all times, except when the cover must be open for access.(B) Automatic bleeder vents (vacuum breaker vents) and rim space vents must be equipped with a gasketed lid, pallet, flapper, or other closure device and must be closed (i.e., no gap of more than 1/8 inch) at all times except when required to be open to relieve excess pressure or vacuum in accordance with the manufacturer's design.(C) Each opening into the internal floating roof for a fixed roof support column may be equipped with a flexible fabric sleeve seal instead of a deck cover.(D) Any external floating roof drain that empties into the stored liquid must be equipped with a slotted membrane fabric cover that covers at least 90% of the area of the opening or an equivalent control that must be kept in a closed (i.e., no gap of more than 1/8 inch) position at all times except when the drain is in actual use. Stub drains on an internal floating roof storage tank are not subject to this requirement.(E) There must be no visible holes, tears, or other openings in any seal or seal fabric.(F) For an external floating roof storage tank, secondary seals must be the rim-mounted type (the seal must be continuous from the floating roof to the tank wall with the exception of gaps that do not exceed the following specification). The accumulated area of gaps that exceed 1/8 inch in width between the secondary seal and storage tank wall may not be greater than 1.0 square inch per foot of storage tank diameter.(G) Each opening for a slotted guidepole in an external floating roof storage tank must be equipped with one of the following control device configurations:(i) a pole wiper and pole float that has a seal or wiper at or above the height of the pole wiper;(ii) a pole wiper and a pole sleeve;(iii) an internal sleeve emission control system;(iv) a retrofit to a solid guidepole system;(v) a flexible enclosure system; or(vi) a cover on an external floating roof tank.(H) The external floating roof or internal floating roof must be floating on the liquid surface at all times except as specified in this subparagraph. The external floating roof or internal floating roof may be supported by the leg supports or other support devices, such as hangers from the fixed roof, during the initial fill or refill after the storage tank has been cleaned or as allowed under the following circumstances:(i) when necessary for maintenance or inspection;(ii) when necessary for supporting a change in service to an incompatible liquid;(iii) when the storage tank has a storage capacity less than 25,000 gallons or the vapor pressure of the material stored is less than 1.5 psia;(iv) when the vapors are routed to a control device from the time the floating roof is landed until the floating roof is within ten percent by volume of being refloated;(v) when all VOC emissions from the tank, including emissions from roof landings, have been included in a floating roof storage tank emissions limit or cap approved under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification); or(vi) when all VOC emissions from floating roof landings at the regulated entity, as defined in §101.1 of this title (relating to Definitions), are less than 25 tons per year.(3) Vapor control systems, as defined in §115.10 of this title, used as a control device on any storage tank must maintain a minimum control efficiency of 90%.(4) For a storage tank storing condensate, as defined in §101.1 of this title, prior to custody transfer, flashed gases must be routed to a vapor control system if the liquid throughput through an individual tank or the aggregate of tanks in a tank battery exceeds 1,500 barrels (63,000 gallons) per year.(5) For a storage tank storing crude oil or condensate prior to custody transfer or at a pipeline breakout station, flashed gases must be routed to a vapor control system if the uncontrolled VOC emissions from an individual storage tank, or from the aggregate of storage tanks in a tank battery, equal or exceed 25 tons per year on a rolling 12-month basis. Uncontrolled emissions must be estimated by one of the following methods; however, if emissions determined using direct measurements or other methods approved by the executive director under subparagraph (A) or (D) of this paragraph are higher than emissions estimated using the default factors or charts in subparagraph (B) or (C) of this paragraph, the higher values must be used.(A) The owner or operator may make direct measurements using the measuring instruments and methods specified in §115.117 of this title (relating to Approved Test Methods).(B) The owner or operator may use a factor of 33.3 pounds of VOC per barrel (42 gallons) of condensate produced or 1.6 pounds of VOC per barrel (42 gallons) of oil produced.(C) For crude oil storage only, the owner or operator may use the chart in Exhibit 2 of the United States Environmental Protection Agency publication Lessons Learned from Natural Gas Star Partners: Installing Vapor Recovery Units on Crude Oil Storage Tanks, October 2003, and assuming that the hydrocarbon vapors have a molecular weight of 34 pounds per pound mole and are 48% by weight VOC.(D) Other test methods or computer simulations may be allowed if approved by the executive director.(e) The control requirements in this subsection apply in the Bexar County, Houston-Galveston-Brazoria, and Dallas-Fort Worth areas, except as specified in §115.119 of this title (relating to Compliance Schedules) and in paragraph (3) of this subsection. Beginning on the applicable compliance date specified in §115.183 of this title (relating to Compliance Schedules), the requirements in this subsection no longer apply to storage tanks storing crude oil or condensate that are subject to Division 7 of this subchapter (relating to Oil and Natural Gas Service in Ozone Nonattainment Areas).(1) No person shall place, store, or hold VOC in any storage tank unless the storage tank is capable of maintaining working pressure sufficient at all times to prevent any vapor or gas loss to the atmosphere or is in compliance with the control requirements specified in Table 1 of this paragraph for VOC other than crude oil and condensate or Table 2 of this paragraph for crude oil and condensate. Attached Graphic(2) For an external floating roof or internal floating roof storage tank subject to the provisions of paragraph (1) of this subsection, the following requirements apply.(A) All openings in an internal floating roof or external floating roof must provide a projection below the liquid surface. Automatic bleeder vents (vacuum breaker vents) and rim space vents are not subject to this requirement.(B) All openings in an internal floating roof or external floating roof must be equipped with a deck cover. The deck cover must be equipped with a gasket in good operating condition between the cover and the deck. The deck cover must be closed (i.e., no gap of more than 1/8 inch) at all times, except when the cover must be open for access. Automatic bleeder vents (vacuum breaker vents), rim space vents, leg sleeves, and roof drains are not subject to this requirement.(C) Automatic bleeder vents (vacuum breaker vents) and rim space vents must be equipped with a gasketed lid, pallet, flapper, or other closure device and must be closed (i.e., no gap of more than 1/8 inch) at all times except when required to be open to relieve excess pressure or vacuum in accordance with the manufacturer's design.(D) Each opening into the internal floating roof for a fixed roof support column may be equipped with a flexible fabric sleeve seal instead of a deck cover.(E) Any external floating roof drain that empties into the stored liquid must be equipped with a slotted membrane fabric cover that covers at least 90% of the area of the opening or an equivalent control that must be kept in a closed (i.e., no gap of more than 1/8 inch) position at all times except when the drain is in actual use. Stub drains on an internal floating roof storage tank are not subject to this requirement.(F) There must be no visible holes, tears, or other openings in any seal or seal fabric.(G) For an external floating roof storage tank, secondary seals must be the rim-mounted type. The seal must be continuous from the floating roof to the tank wall with the exception of gaps that do not exceed the following specification. The accumulated area of gaps that exceed 1/8 inch in width between the secondary seal and storage tank wall may not be greater than 1.0 square inch per foot of storage tank diameter.(H) Each opening for a slotted guidepole in an external floating roof storage tank must be equipped with one of the following control device configurations:(i) a pole wiper and pole float that has a seal or wiper at or above the height of the pole wiper;(ii) a pole wiper and a pole sleeve;(iii) an internal sleeve emission control system;(iv) a retrofit to a solid guidepole system;(v) a flexible enclosure system; or(vi) a cover on an external floating roof tank.(I) The external floating roof or internal floating roof must be floating on the liquid surface at all times except as allowed under the following circumstances:(i) during the initial fill or refill after the storage tank has been cleaned;(ii) when necessary for preventive maintenance, roof repair, primary seal inspection, or removal and installation of a secondary seal, if product is not transferred into or out of the storage tank, emissions are minimized, and the repair is completed within seven calendar days;(iii) when necessary for supporting a change in service to an incompatible liquid;(iv) when the storage tank has a storage capacity less than 25,000 gallons;(v) when the vapors are routed to a control device from the time the storage tank has been emptied to the extent practical or the drain pump loses suction until the floating roof is within 10% by volume of being refloated;(vi) when all VOC emissions from the storage tank, including emissions from floating roof landings, have been included in an emissions limit or cap approved under Chapter 116 of this title prior to March 1, 2013; or(vii) when all VOC emissions from floating roof landings at the regulated entity are less than 25 tons per year.(3) A control device used to comply with this subsection must meet one of the following conditions at all times when VOC vapors are routed to the device.(A) A control device, other than a vapor recovery unit or a flare, must maintain the following minimum control efficiency:(i) 90% in the Houston-Galveston-Brazoria area until the date specified in clause (ii) of this subparagraph;(ii) 95% in the Houston-Galveston-Brazoria area beginning July 20, 2018; (iii) 95% in the Dallas-Fort Worth area; and (iv) 95% in the Bexar County area.(B) A vapor recovery unit must be designed to process all vapor generated by the maximum liquid throughput of the storage tank or the aggregate of storage tanks in a tank battery and must transfer recovered vapors to a pipe or container that is vapor-tight, as defined in §115.10 of this title.(C) A flare must be designed and operated in accordance with 40 Code of Federal Regulations §60.18(b) - (f) (as amended through December 22, 2008 (73 FR 78209)) and be lit at all times when VOC vapors are routed to the flare.(4) For a fixed roof storage tank storing condensate prior to custody transfer, flashed gases must be routed to a vapor control system if the condensate throughput of an individual tank or the aggregate of tanks in a tank battery exceeds;(A) in the Houston-Galveston-Brazoria area, 1,500 barrels (63,000 gallons) per year on a rolling 12-month basis;(B) in the Dallas-Fort Worth area, except Wise County, 3,000 barrels (126,000 gallons) per year on a rolling 12-month basis until November 7, 2025, upon which date, the requirements in subparagraph (D) of this paragraph apply;(C) in Wise County:(i) 6,000 barrels (252,000 gallons) per year on a rolling 12-month basis, until July 20, 2021; and(ii) 3,000 barrels (126,000 gallons) per year on a rolling 12-month basis until November 7, 2025, upon which date, the requirements in subparagraph (D) of this paragraph apply; (D) in the Dallas-Fort Worth area, 1,500 barrels (63,000 gallons) per year on a rolling 12-month basis beginning November 7, 2025, as specified in §115.119(f) of this title; and(E) in the Bexar County area beginning January 1, 2025, 6,000 barrels (252,000 gallons) per year on a rolling 12-month basis.(5) For a fixed roof storage tank storing crude oil or condensate prior to custody transfer or at a pipeline breakout station, flashed gases must be routed to a vapor control system if the uncontrolled VOC emissions from an individual storage tank, or from the aggregate of storage tanks in a tank battery, or from the aggregate of storage tanks at a pipeline breakout station, equal or exceed:(A) in the Houston-Galveston-Brazoria area, 25 tons per year on a rolling 12-month basis;(B) in the Dallas-Fort Worth area, except Wise County: 50 tons per year on a rolling 12-month basis until November 7, 2025, upon which date, the requirements in subparagraph (D) of this paragraph apply;(C) in Wise County:(i) 100 tons per year on a rolling 12-month basis, until July 20, 2021; (ii) 50 tons per year on a rolling 12-month basis beginning July 20, 2021, as specified in §115.119(f) of this title, until November 7, 2025, upon which date, the requirements in subparagraph (D) of this paragraph apply;(D) in the Dallas-Fort Worth area, 25 tons per year on a rolling 12-month basis beginning November 7, 2025 as specified in §115.119(f) of this title; and(E) in the Bexar County area 100 tons per year on a rolling 12-month basis.(6) Uncontrolled emissions from a fixed roof storage tank or fixed roof storage tank battery storing crude oil or condensate prior to custody transfer or at a pipeline breakout station must be estimated by one of the following methods. However, if emissions determined using direct measurements or other methods approved by the executive director under subparagraph (A) or (B) of this paragraph are higher than emissions estimated using the default factors or charts in subparagraph (C) or (D) of this paragraph, the higher values must be used.(A) The owner or operator may make direct measurements using the measuring instruments and methods specified in §115.117 of this title.(B) The owner or operator may use other test methods or computer simulations approved by the executive director.(C) The owner or operator may use a factor of 33.3 pounds of VOC per barrel (42 gallons) of condensate produced or 1.6 pounds of VOC per barrel (42 gallons) of oil produced.(D) For crude oil storage only, the owner or operator may use the chart in Exhibit 2 of the United States Environmental Protection Agency publication Lessons Learned from Natural Gas Star Partners: Installing Vapor Recovery Units on Crude Oil Storage Tanks, October 2003, and assuming that the hydrocarbon vapors have a molecular weight of 34 pounds per pound mole and are 48% by weight VOC.(7) Fixed roof storage tanks in the Bexar County area, Dallas-Fort Worth area, and Houston-Galveston-Brazoria area storing crude oil or condensate prior to custody transfer or at a pipeline breakout station for which the owner or operator is required by this subsection to control flashed gases must be maintained in accordance with manufacturer instructions. All openings in the fixed roof storage tank through which vapors are not routed to a vapor recovery unit or other vapor control device must be equipped with a closure device maintained according to the manufacturer's instructions and operated according to this paragraph. If manufacturer instructions are unavailable, industry standards consistent with good engineering practice can be substituted.(A) Each closure device must be closed at all times except when normally actuated or required to be open for temporary access or to relieve excess pressure or vacuum in accordance with the manufacturer's design and consistent with good air pollution control practices. Such opening, actuation, or use must be limited to minimize vapor loss.(B) Each closure device must be properly sealed to minimize vapor loss when closed.(C) Each closure device must either be latched closed or, if designed to relieve pressure, set to automatically open at a pressure that will ensure all vapors are routed to the vapor recovery unit or other vapor control device under normal operating conditions other than gauging the tank or taking a sample through an open thief hatch.(D) No closure device may be allowed to have a VOC leak for more than 15 calendar days after the leak is found unless delay of repair is allowed. For the purposes of this subparagraph, a leak is the exuding of process gasses from a closed device based on sight, smell, or sound. If parts are unavailable, repair may be delayed. Parts must be ordered promptly and the repair must be completed within five days of receipt of required parts. Repair may be delayed until the next shutdown if the repair of the component would require a shutdown that would create more emissions than the repair would eliminate. Repair must be completed by the end of the next shutdown.</content><note type="source"><p>Source Note: The provisions of this §115.112 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3713; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective January 27, 1995, 20 TexReg 221; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective June 14, 2007, 32 TexReg 3178; amended to be effective December 29, 2011, 36 TexReg 8862; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective January 5, 2017, 41 TexReg 10649; amended to be effective March 26, 2020, 45 TexReg 2003; amended to be effective July 21, 2021, 46 TexReg 4313; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.113"><num value="115.113">§115.113</num><heading>Alternate Control Requirements</heading><content>Alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.</content><note type="source"><p>Source Note: The provisions of this §115.113 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective January 27, 1995, 20 TexReg 221; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective June 14, 2007, 32 TexReg 3178; amended to be effective December 29, 2011, 36 TexReg 8862.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.114"><num value="115.114">§115.114</num><heading>Inspection and Repair Requirements</heading><content>(a) The following inspection requirements apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions).(1) For an internal floating roof storage tank, the internal floating roof and the primary seal or the secondary seal (if one is in service) must be visually inspected through a fixed roof inspection hatch at least once every 12 months.(A) If the internal floating roof is not resting on the surface of the volatile organic compounds (VOC) inside the storage tank and is not resting on the leg supports; or liquid has accumulated on the internal floating roof; or the seal is detached; or there are holes or tears in the seal fabric; or there are visible gaps between the seal and the wall of the storage tank, within 60 days of the inspection the owner or operator shall repair the items or shall empty and degas the storage tank in accordance with Subchapter F, Division 3 of this chapter (relating to Degassing of Storage Tanks, Transport Vessels, and Marine Vessels).(B) If a failure cannot be repaired within 60 days and if the storage tank cannot be emptied within 60 days, the owner or operator may submit written requests for up to two extensions of up to 30 additional days each to the appropriate regional office. The owner or operator shall submit a copy to any local air pollution control program with jurisdiction. Each request for an extension must include a statement that alternate storage capacity is unavailable and a schedule that will assure that the repairs will be completed as soon as possible.(2) For an external floating roof storage tank, the secondary seal gap must be physically measured at least once every 12 months to insure compliance with §115.112(a)(2)(F), (d)(2)(F), and (e)(2)(G) of this title (relating to Control Requirements).(A) If the secondary seal gap exceeds the limitations specified by §115.112(a)(2)(F), (d)(2)(F), and (e)(2)(G) of this title, within 60 days of the inspection the owner or operator shall repair the items or shall empty and degas the storage tank in accordance with Subchapter F, Division 3 of this chapter.(B) If a failure cannot be repaired within 60 days and if the storage tank cannot be emptied within 60 days, the owner or operator may submit written requests for up to two extensions of up to 30 additional days each to the appropriate regional office. The owner or operator shall submit a copy to any local air pollution control program with jurisdiction. Each request for an extension must include a statement that alternate storage capacity is unavailable and a schedule that will assure that the repairs will be completed as soon as possible.(3) If the storage tank is equipped with a mechanical shoe or liquid-mounted primary seal, compliance with §115.112(a)(2)(F), (d)(2)(F), and (e)(2)(G) of this title can be determined by visual inspection.(4) For an external floating roof storage tank, the secondary seal must be visually inspected at least once every six months to ensure compliance with §115.112(a)(2)(E) and (F), (d)(2)(E) and (F), and (e)(2)(F) and (G) of this title.(A) If the external floating roof is not resting on the surface of the VOC inside the storage tank and is not resting on the leg supports; or liquid has accumulated on the external floating roof; or the seal is detached; or there are holes or tears in the seal fabric; or there are visible gaps between the seal and the wall of the storage tank, within 60 days of the inspection the owner or operator shall repair the items or shall empty and degas the storage tank in accordance with Subchapter F, Division 3 of this chapter.(B) If a failure cannot be repaired within 60 days and if the storage tank cannot be emptied within 60 days, the owner or operator may submit written requests for up to two extensions of up to 30 additional days each to the appropriate regional office. The owner or operator shall submit a copy to any local air pollution control program with jurisdiction. Each request for an extension must include a statement that alternate storage capacity is unavailable and a schedule that will assure that the repairs will be completed as soon as possible.(5) For fixed roof storage tanks in the Bexar County, Dallas-Fort Worth and Houston-Galveston-Brazoria areas, storing crude oil or condensate prior to custody transfer or at a pipeline breakout station for which the owner or operator is required by §115.112(e) of this title to control flashed gases, the owner or operator shall inspect and repair all closure devices not connected to a vapor recovery unit or other vapor control device according to the schedule in this paragraph.(A) The owner or operator shall conduct an audio, visual, and olfactory inspection of each closure device not connected to a vapor recovery unit or other vapor control device to ensure compliance with §115.112(e)(7)(A) of this title. The inspection must occur when liquids are not being added to or unloaded from the tank. If the owner or operator finds the closure device open for reasons not allowed in §115.112(e)(7)(A) of this title, the owner or operator shall attempt to close the device during the inspection. The inspection must occur before the end of one business day after each opening of a thief or access hatch for sampling or gauging, and before the end of one business day after each unloading event. If multiple events occur on a single day, a single inspection within one business day after the last event is sufficient.(B) The owner or operator shall conduct an audio, visual, and olfactory inspection of all gaskets and vapor sealing surfaces of each closure device not connected to a vapor recovery unit or other vapor control device once per calendar quarter to ensure compliance with §115.112(e)(7)(B) of this title. If the owner or operator finds an improperly sealed closure device, the owner or operator shall make a first attempt at repair no later than five calendar days after the inspection and repair the device no later than 15 calendar days after the inspection unless delay of repair is allowed. If parts are unavailable, repair may be delayed. Parts must be ordered promptly and the repair must be completed within five days of receipt of required parts. Repair may be delayed until the next shutdown if the repair of the component would require a shutdown that would create more emissions than the repair would eliminate. Repair must be completed by the end of the next shutdown. For the purpose of this subparagraph, a repair is complete if the closure device no longer exudes process gasses based on sight, smell, or sound.(b) The following inspection requirements apply in Gregg, Nueces, and Victoria Counties.(1) For an internal floating roof storage tank, the following inspection requirements apply.(A) If during an inspection of an internal floating roof storage tank, the internal floating roof is not resting on the surface of the VOC inside the storage tank and is not resting on the leg supports; or liquid has accumulated on the internal floating roof; or the seal is detached; or there are holes or tears in the seal fabric; or there are visible gaps between the seal and the wall of the storage tank, within 60 days of the inspection the owner or operator shall repair the items or shall empty and degas the storage tank.(B) If a failure cannot be repaired within 60 days and if the storage tank cannot be emptied within 60 days, the owner or operator may submit written requests for up to two extensions of up to 30 additional days each to the appropriate regional office. The owner or operator shall submit a copy to any local air pollution control program with jurisdiction. Each request for an extension must include a statement that alternate storage capacity is unavailable and a schedule that will assure that the repairs will be completed as soon as possible.(2) For an external floating roof storage tank, the secondary seal gap must be physically measured at least once every 12 months to insure compliance with §115.112(b)(2)(F) of this title.(A) If the secondary seal gap exceeds the limitations specified by §115.112(b)(2)(F) of this title, within 60 days of the inspection the owner or operator shall repair the items or shall empty and degas the storage tank.(B) If a failure cannot be repaired within 60 days and if the storage tank cannot be emptied within 60 days, the owner or operator may submit written requests for up to two extensions of up to 30 additional days each to the appropriate regional office. The owner or operator shall submit a copy to any local air pollution control program with jurisdiction. Each request for an extension must include a statement that alternate storage capacity is unavailable and a schedule that will assure that the repairs will be completed as soon as possible.(3) If the storage tank is equipped with a mechanical shoe or liquid-mounted primary seal, compliance with §115.112(b)(2)(F) of this title can be determined by visual inspection.(4) For an external floating roof storage tank, the secondary seal must be visually inspected at least once every 12 months to insure compliance with §115.112(b)(2)(E) - (F) of this title.(A) If the external floating roof is not resting on the surface of the VOC inside the storage tank and is not resting on the leg supports; or liquid has accumulated on the external floating roof; or the seal is detached; or there are holes or tears in the seal fabric; or there are visible gaps between the seal and the wall of the storage tank, within 60 days of the inspection the owner or operator shall repair the items or shall empty and degas the storage tank.(B) If a failure cannot be repaired within 60 days and if the storage tank cannot be emptied within 60 days, the owner or operator may submit written requests for up to two extensions of up to 30 additional days each to the appropriate regional office. The owner or operator shall submit a copy to any local air pollution control program with jurisdiction. Each request for an extension must include a statement that alternate storage capacity is unavailable and a schedule that will assure that the repairs will be completed as soon as possible.(c) The following inspection requirements apply in Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties. The inspection and repair requirements of this subsection no longer apply for sources located in Bexar County beginning January 1, 2025.(1) For an internal floating roof storage tank, the following inspection requirements apply.(A) If during an inspection of an internal floating roof storage tank, the internal floating roof is not resting on the surface of the VOC inside the storage tank and is not resting on the leg supports; or liquid has accumulated on the internal floating roof; or the seal is detached; or there are holes or tears in the seal fabric; or there are visible gaps between the seal and the wall of the storage tank, within 60 days of the inspection the owner or operator shall repair the items or shall empty and degas the storage tank.(B) If a failure cannot be repaired within 60 days and if the storage tank cannot be emptied within 60 days, the owner or operator may submit written requests for up to two extensions of up to 30 additional days each to the appropriate regional office. The owner or operator shall submit a copy to any local air pollution control program with jurisdiction. Each request for an extension must include a statement that alternate storage capacity is unavailable and a schedule that will assure that the repairs will be completed as soon as possible.(2) For an external floating roof storage tank, the following inspection requirements apply.(A) If during an inspection of an external floating roof storage tank, the external floating roof is not resting on the surface of the VOC inside the storage tank and is not resting on the leg supports; or liquid has accumulated on the external floating roof; or the seal is detached; or there are holes or tears in the seal fabric; or there are visible gaps between the seal and the wall of the storage tank, within 60 days of the inspection the owner or operator shall repair the items or shall empty and degas the storage tank.(B) If a failure cannot be repaired within 60 days and if the storage tank cannot be emptied within 60 days, the owner or operator may submit written requests for up to two extensions of up to 30 additional days each to the appropriate regional office. The owner or operator shall submit a copy to any local air pollution control program with jurisdiction. Each request for an extension must include a statement that alternate storage capacity is unavailable and a schedule that will assure that the repairs will be completed as soon as possible.</content><note type="source"><p>Source Note: The provisions of this §115.114 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3713; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective June 14, 2007, 32 TexReg 3178; amended to be effective December 29, 2011, 36 TeReg 8862; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective January 5, 2017, 41 TexReg 10649; amendedto be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.115"><num value="115.115">§115.115</num><heading>Monitoring Requirements</heading><content>(a) The following monitoring requirements apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions). An affected owner or operator shall install and maintain monitors to measure operational parameters of any of the following control devices installed to meet applicable control requirements. Such monitors must be sufficient to demonstrate proper functioning of those devices to design specifications.(1) For a direct-flame incinerator, the owner or operator shall continuously monitor the exhaust gas temperature immediately downstream of the device.(2) For a condensation system, the owner or operator shall continuously monitor the outlet gas temperature to ensure the temperature is below the manufacturer's recommended operating temperature for controlling the volatile organic compounds (VOC) vapors routed to the device.(3) For a carbon adsorption system or carbon adsorber, as defined in §101.1 of this title (relating to Definitions), the owner or operator shall:(A) continuously monitor the exhaust gas VOC concentration of a carbon adsorption system that regenerates the carbon bed directly to determine breakthrough. For the purpose of this paragraph, breakthrough is defined as a measured VOC concentration exceeding 100 parts per million by volume above background expressed as methane; or(B) switch the vent gas flow to fresh carbon at a regular predetermined time interval for a carbon adsorber or carbon adsorption system that does not regenerate the carbon directly. The time interval must be less than the carbon replacement interval determined by the maximum design flow rate and the VOC concentration in the gas stream vented to the carbon adsorption system or carbon adsorber.(4) For a catalytic incinerator, the owner or operator shall continuously monitor the inlet and outlet gas temperature.(5) For a vapor recovery unit used to comply with §115.112(e)(3) of this title (relating to Control Requirements), the owner or operator shall continuously monitor at least one of the following operational parameters:(A) run-time of the compressor or motor in a vapor recovery unit;(B) total volume of recovered vapors; or(C) other parameters sufficient to demonstrate proper functioning to design specifications.(6) For a control device not listed in this subsection, the owner or operator shall continuously monitor one or more operational parameters sufficient to demonstrate proper functioning of the control device to design specifications.(b) In Victoria County, the owner or operator shall monitor operational parameters of any of the emission control devices listed in this subsection installed to meet applicable control requirements.(1) For a direct-flame incinerator, the owner or operator shall continuously monitor the exhaust gas temperature immediately downstream of the device.(2) For a condensation system or catalytic incinerator, the owner or operator shall continuously monitor the inlet and outlet gas temperature.(3) For a carbon adsorption system or carbon adsorber, the owner or operator shall continuously monitor the exhaust gas VOC concentration to determine if breakthrough has occurred. The owner or operator may conduct this monitoring using Method 21, as specified in §115.117 of this title, if the monitoring is conducted once every seven calendar days.</content><note type="source"><p>Source Note: The provisions of this §115.115 adopted to be effective December 29, 2011, 36 TexReg 8862; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.116"><num value="115.116">§115.116</num><heading>Testing Requirements</heading><content>(a) The testing requirements in this subsection apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, Houston-Galveston-Brazoria, and El Paso areas, as defined in §115.10 of this title (relating to Definitions).(1) For a vapor control system, other than a vapor recovery unit or a flare, used to comply with the control requirements in §115.112(a)(3) and (e)(3)(A) of this title (relating to Control Requirements), an initial control efficiency test must be conducted in accordance with the approved test methods in §115.117 of this title (relating to Approved Test Methods). If the vapor control system is modified in any way that could reasonably be expected to decrease the control efficiency, the device must be retested within 60 days of the modification.(2) A flare used to comply with the control requirements in §115.112(a)(3) and (e)(3)(C) of this title must meet the design verification test requirements in 40 Code of Federal Regulations §60.18(f) (as amended through December 22, 2008 (73 FR 78209)).(b) The testing requirements in this subsection apply in Gregg, Nueces, and Victoria Counties.(1) For a vapor control system, other than a vapor recovery unit or a flare, compliance with the control requirements in §115.112(b) of this title must be demonstrated in accordance with the approved test methods in §115.117 of this title.(2) A flare must meet the design verification test requirements in 40 Code of Federal Regulations §60.18(f) (as amended through December 22, 2008 (73 FR 78209)).</content><note type="source"><p>Source Note: The provisions of this §115.116 adopted to be effective December 29, 2011, 36 TexReg 8862; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.117"><num value="115.117">§115.117</num><heading>Approved Test Methods</heading><content>For the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions) and Gregg, Nueces, and Victoria Counties, compliance with the requirements in this division must be determined by applying the following test methods, as appropriate:(1) Methods 1 - 4 (40 Code of Federal Regulations (CFR) Part 60, Appendix A) for determining flow rates, as necessary;(2) Method 18 (40 CFR Part 60, Appendix A) for determining gaseous organic compound emissions by gas chromatography;(3) Method 21 (40 CFR Part 60, Appendix A-7) for determining volatile organic compounds concentrations for the purposes of determining the presence of leaks and determining breakthrough on a carbon adsorption system or carbon adsorber. If the owner or operator chooses to conduct a test to verify a vapor-tight requirement, Method 21 is acceptable;(4) Method 22 (40 CFR Part 60, Appendix A) for determination of visible emissions from flares;(5) Method 25 (40 CFR Part 60, Appendix A) for determining total gaseous nonmethane organic emissions as carbon;(6) Methods 25A or 25B (40 CFR Part 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis;(7) test method described in 40 CFR §60.113a(a)(1)(ii) (effective April 8, 1987) for measurement of storage tank seal gap;(8) true vapor pressure must be determined using standard reference texts or ASTM International Test Method D323, D2879, D4953, D5190, D5191, or D6377 for the measurement of Reid vapor pressure, adjusted for actual storage temperature in accordance with American Petroleum Institute Publication 2517. For the purposes of temperature correction, the owner or operator shall use the actual storage temperature. Actual storage temperature of an unheated storage tank may be determined using the maximum local monthly average ambient temperature as reported by the National Weather Service. Actual storage temperature of a heated storage tank must be determined using either the measured temperature or the temperature set point of the storage tank;(9) mass flow meter, positive displacement meter, or similar device for measuring the volumetric flow rate of flash, working, breathing, and standing emissions from crude oil and condensate over a 24-hour period representative of normal operation. For crude oil and natural gas production sites, volumetric flow rate measurements must be made while the producing wells are operational;(10) test methods referenced in paragraphs (2), (5), and (6) of this section or Gas Processors Association Method 2286, Tentative Method of Extended Analysis for Natural Gas and Similar Mixtures by Temperature Programmed Gas Chromatography, to measure the concentration of volatile organic compounds in flashed gases from crude oil and condensate storage;(11) test methods other than those specified in this section may be used if validated by 40 CFR Part 63, Appendix A, Test Method 301 and approved by the executive director; or(12) minor modifications to these test methods approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.117 adopted to be effective December 29, 2011, 36 TexReg 8862; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.118"><num value="115.118">§115.118</num><heading>Recordkeeping Requirements</heading><content>(a) The following recordkeeping requirements apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions). (1) The owner or operator of storage tank claiming an exemption in §115.111 of this title (relating to Exemptions) shall maintain records sufficient to demonstrate continuous compliance with the applicable exemption criteria. Where applicable, true vapor pressure, volatile organic compounds (VOC) content type, or a combination of the two must be recorded initially and at every change of service or when the storage tank is emptied and refilled.(2) The owner or operator of an external floating roof storage tank that is exempt from the requirement for a secondary seal in accordance with §115.111(a)(1), (6), and (7) of this title and is used to store VOC with a true vapor pressure greater than 1.0 pounds per square inch absolute (psia) shall maintain records of the type of VOC stored and the average monthly true vapor pressure of the stored liquid.(3) The owner or operator shall maintain records of the results of inspections required by §115.114(a) of this title (relating to Inspection and Repair Requirements). For secondary seal gaps that are required to be physically measured during inspection, these records must include a calculation of emissions for all secondary seal gaps that exceed 1/8 inch where the accumulated area of such gaps is greater than 1.0 square inch per foot of tank diameter. These calculated emissions inventory reportable emissions must be reported in the annual emissions inventory submittal required by §101.10 of this title (relating to Emissions Inventory Requirements). The emissions must be calculated using the following equation.Attached Graphic(4) The owner or operator shall maintain records of any operational parameter monitoring required in §115.115(a) of this title (relating to Monitoring Requirements). Such records must be sufficient to demonstrate proper functioning of those devices to design specifications and must include, but are not limited to, the following.(A) For a direct-flame incinerator, the owner or operator shall continuously record the exhaust gas temperature immediately downstream of the device.(B) For a condensation system, the owner or operator shall continuously record the outlet gas temperature to ensure the temperature is below the manufacturer's recommended operating temperature for controlling the VOC vapors routed to the device.(C) For a carbon adsorption system or carbon adsorber, the owner or operator shall:(i) continuously record the exhaust gas VOC concentration of any carbon adsorption system monitored according to §115.115(a)(3)(A) of this title; or(ii) record the date and time of each switch between carbon containers and the method of determining the carbon replacement interval if the carbon adsorption system or carbon adsorber is switched according to §115.115(a)(3)(B) of this title.(D) For a catalytic incinerator, the owner or operator shall continuously record the inlet and outlet gas temperature.(E) For a vapor recovery unit, the owner or operator shall maintain records of the continuous operational parameter monitoring required in §115.115(a)(5) of this title.(F) For any other control device not listed in this paragraph, the owner or operator shall maintain records of the continuous operational parameter monitoring required in §115.115(a)(6) of this title sufficient to demonstrate proper functioning of the control device to design specifications.(5) The owner or operator shall maintain the results of any testing conducted in accordance with §115.116 of this title (relating to Testing Requirements) or §115.117 of this title (relating to Approved Test Methods) at an affected site. Results may be maintained at an off-site location if made available for review within 24 hours.(6) In the Houston-Galveston-Brazoria and Dallas-Fort Worth areas, and in the Bexar County area beginning January 1, 2025, the owner or operator shall maintain the following additional records.(A) The owner or operator of a fixed roof storage tank that is not required in §115.112(d)(1) or (e)(1) of this title (relating to Control Requirements) to be equipped with an external floating roof, internal floating roof, or vapor control system shall maintain records of the type of VOC stored, the starting and ending dates when the material is stored, and the true vapor pressure at the average monthly storage temperature of the stored liquid. This requirement does not apply to a storage tank with storage capacity of 25,000 gallons or less storing VOC other than crude oil or condensate, or to a storage tank with storage capacity of 40,000 gallons or less storing crude oil or condensate.(B) The owner or operator of any storage tank that stores crude oil or condensate prior to custody transfer or at a pipeline breakout station and is not equipped with a vapor control system shall maintain records of the estimated uncontrolled emissions from the storage tank on a rolling 12-month basis. The records must be made available for review within 72 hours upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution control agency with jurisdiction.(C) The owner or operator of an external floating roof or internal floating roof storage tank meeting the extended compliance date in §115.119(a)(1)(A) or (b)(1)(A) of this title (relating to Compliance Schedules) shall maintain records of the date of the last time the storage tank was emptied and degassed.(D) The owner or operator of any storage tank that stores crude oil or condensate prior to custody transfer or at a pipeline breakout station is required by §115.112(e) of this title to control flash emissions shall maintain records of the manufacturer or industry standard instructions used to maintain the storage tanks and tank closure devices in use.(E) The owner or operator of any storage tank that stores crude oil or condensate prior to custody transfer or at a pipeline breakout station shall maintain records of the results of each inspection and repair required in §115.112(e)(7) or §115.114(a)(5) of this title, including the following items:(i) the date of the inspection;(ii) the status of the device during inspection;(iii) the amount of time a closure device was open since the last inspection for reasons not allowed in §115.112(e)(7)(A) of this title;(iv) the date repair was attempted and completed; and(v) the list of closure devices awaiting delayed repair as allowed by §115.112(e)(7)(D) of this title.(7) All records must be maintained for two years and be made available for review upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution control agency with jurisdiction. In the Dallas-Fort Worth area, any records created on or after March 1, 2011, must be maintained for at least five years. In the Houston-Galveston-Brazoria area, any records created on or after January 1, 2017 must be maintained for at least five years. In the Bexar County area, beginning January 1, 2025, any records created must be maintained for at least five years.(b) The following recordkeeping requirements apply in Gregg, Nueces, and Victoria Counties.(1) The owner or operator of an external floating roof storage tank that is exempt from the requirement for a secondary seal in accordance with §115.111(b)(1), (6), and (7) of this title and used to store VOC with a true vapor pressure greater than 1.0 psia shall maintain records of the type of VOC stored and the average monthly true vapor pressure of the stored liquid.(2) The owner or operator shall record the results of inspections required by §115.114(b) of this title.(3) In Victoria County, the owner or operator shall continuously record operational parameters of any of the following emission control devices installed to meet applicable control requirements in §115.112 of this title. Such records must be sufficient to demonstrate proper functioning of those devices to design specifications, including:(A) the exhaust gas temperature immediately downstream of a direct-flame incinerator;(B) the inlet and outlet gas temperature of a condensation system or catalytic incinerator; and(C) the exhaust gas VOC concentration of any carbon adsorption system or carbon adsorber, to determine if breakthrough has occurred.(4) The owner or operator shall maintain records of the results of any testing conducted in accordance with §115.117 of this title at an affected site.(5) All records must be maintained for two years and be made available for review upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution control agency with jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §115.118 adopted to be effective December 29, 2011, 36 TexReg 8862; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective January 5, 2017, 41 TexReg 10649; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.119"><num value="115.119">§115.119</num><heading>Compliance Schedules</heading><content>(a) In Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties, the compliance date has passed and the owner or operator of each storage tank in which any volatile organic compounds (VOC) are placed, stored, or held shall continue to comply with this division except as follows.(1) The affected owner or operator shall comply with the requirements of §§115.112(d); 115.115(a)(1), (2), (3)(A), and (4); 115.117; and 115.118(a) of this title (relating to Control Requirements; Monitoring Requirements; Approved Test Methods; and Recordkeeping Requirements, respectively) no later than January 1, 2009. Section 115.112(d) of this title no longer applies in the Houston-Galveston-Brazoria area beginning March 1, 2013. Prior to March 1, 2013, the owner or operator of a storage tank subject to §115.112(d) of this title shall continue to comply with §115.112(d) of this title until compliance has been demonstrated with the requirements of §115.112(e)(1) - (6) of this title. Section 115.112(e)(3)(A)(i) of this title no longer applies beginning July 20, 2018.(A) If compliance with these requirements would require emptying and degassing of the storage tank, compliance is not required until the next time the storage tank is emptied and degassed but no later than January 1, 2017.(B) The owner or operator of each storage tank with a storage capacity less than 210,000 gallons storing crude oil and condensate prior to custody transfer shall comply with the requirements of this division no later than January 1, 2009, regardless if compliance with these requirements would require emptying and degassing of the storage tank.(2) The affected owner or operator shall comply with §§115.112(e)(1) - (6), 115.115(a)(3)(B), (5), and (6), and 115.116 of this title (relating to Testing Requirements) no later than March 1, 2013. Section 115.112(e)(3)(A)(i) of this title no longer applies beginning July 20, 2018. Prior to July 20, 2018, the owner or operator of a storage tank subject to §115.112(e)(3)(A)(i) of this title shall continue to comply with §115.112(e)(3)(A)(i) of this title until compliance has been demonstrated with the requirements of §115.112(e)(3)(A)(ii) of this title. After July 20, 2018, the owner or operator of a storage tank is subject to §115.112(e)(3)(A)(ii) of this title.(A) If compliance with these requirements would require emptying and degassing of the storage tank, compliance is not required until the next time the storage tank is emptied and degassed but no later than January 1, 2017.(B) The owner or operator of each storage tank with a storage capacity less than 210,000 gallons storing crude oil and condensate prior to custody transfer shall comply with these requirements no later than March 1, 2013, regardless if compliance with these requirements would require emptying and degassing of the storage tank.(3) The affected owner or operator shall comply with §§115.112(e)(3)(A)(ii), 115.112(e)(7), 115.118(a)(6)(D) and (E), and 115.114(a)(5) of this title (relating to Inspection and Repair Requirements) as soon as practicable, but no later than July 20, 2018.(b) In Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties, the owner or operator of each storage tank in which any VOC is placed, stored, or held was required to be in compliance with this division on or before March 1, 2009, and shall continue to comply with this division, except as follows.(1) The affected owner or operator shall comply with §§115.112(e), 115.115(a)(3)(B), (5), and (6), 115.116, and 115.118(a)(6) of this title as soon as practicable, but no later than March 1, 2013.(A) If compliance with §115.112(e) of this title would require emptying and degassing of the storage tank, compliance is not required until the next time the storage tank is emptied and degassed but no later than December 1, 2021.(B) The owner or operator of a storage tank with a storage capacity less than 210,000 gallons storing crude oil and condensate prior to custody transfer shall comply with these requirements no later than March 1, 2013, regardless if compliance with these requirements would require emptying and degassing of the storage tank.(2) The affected owner or operator in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties shall comply with §§115.112(e)(7), 115.114(a)(5), and 115.118(a)(6)(D) and (E) of this title no later than January 1, 2017.(c) In Hardin, Jefferson, and Orange Counties, the owner or operator of each storage tank in which any VOC is placed, stored, or held was required to be in compliance with this division by March 7, 1997, and shall continue to comply with this division, except that compliance with §115.115(a)(3)(B), (5), and (6), and §115.116 of this title is required no later than March 1, 2013.(d) In El Paso County, the owner or operator of each storage tank in which any VOC is placed, stored, or held was required to be in compliance with this division by January 1, 1996, and shall continue to comply with this division, except that compliance with §115.115(a)(3)(B), (5), and (6), and §115.116 of this title is required no later than March 1, 2013.(e) Except as specified in subsection (g) of this section, in Aransas, Bexar, Calhoun, Gregg, Matagorda, Nueces, San Patricio, Travis, and Victoria Counties, the owner or operator of each storage tank in which any VOC is placed, stored, or held was required to be in compliance with this division by July 31, 1993, and shall continue to comply with this division, except that compliance with §115.116(b) of this title is required as soon as practicable, but no later than March 1, 2013.(f) In Wise County, the owner or operator of each storage tank in which any VOC is placed, stored, or held was required to be in compliance with this division by January 1, 2017, and shall continue to comply with this division, except that compliance with §115.112(e)(4)(D) and (5)(D) by no later than November 7, 2025.(g) The owner or operator of each storage tank in the Bexar County area subject to the requirements of this division shall comply with the requirements of §115.112(c) and §115.114(c) of this title through December 31, 2024 and all other applicable requirements of this division no later than January 1, 2025.(h) The owner or operator of each storage tank in which any VOC is placed, stored, or held that becomes subject to this division on or after the date specified in subsections (a) - (f) of this section, shall comply with the requirements in this division no later than 60 days after becoming subject. In Brazoria, Chambers, Collin, Dallas, Denton, Ellis, Fort Bend, Galveston, Harris, Johnson, Kaufman, Liberty, Montgomery, Parker, Rockwall, Tarrant, Waller, and Wise Counties, the owner or operator of a storage tank storing crude oil or condensate shall continue to comply with the requirements in this division until compliance with the requirements in Division 7 of this subchapter (relating to Oil and Natural Gas Service in Ozone Nonattainment Areas) is achieved or until December 31, 2022, whichever is sooner.</content><note type="source"><p>Source Note: The provisions of this §115.119 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3713; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective January 27, 1995, 20 TexReg 221; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective December 7, 2006, 31 TexReg 9840; amended to be effective June 14, 2007, 32 TexReg 3178; amended to be effective December 29, 2011, 36 TexReg 8862; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective January 5, 2017, 41 TexReg 10649; amended to be effective March 26, 2020, 45 TexReg 2003; amended to be effective July 21, 2021, 46 TexReg 4313; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.120"><num value="115.120">§115.120</num><heading>Vent Gas Definitions</heading><content>The following words and terms, when used in this division (relating to Vent Gas Control), shall have the following meanings, unless the context clearly indicates otherwise. Additional definitions for terms used in this division are found in §§3.2, 101.1, and 115.10 of this title (relating to Definitions).(1) Bakery oven--An oven for baking bread or any other yeast-leavened products.(2) Synthetic Organic Chemical Manufacturing Industry (SOCMI) batch distillation operation--A SOCMI noncontinuous distillation operation in which a discrete quantity or batch of liquid feed is charged into a distillation unit and distilled at one time. After the initial charging of the liquid feed, no additional liquid is added during the distillation operation.(3) Synthetic Organic Chemical Manufacturing Industry (SOCMI) batch process--Any SOCMI noncontinuous reactor process which is not characterized by steady-state conditions, and in which reactants are not added and products are not removed simultaneously.(4) Synthetic Organic Chemical Manufacturing Industry (SOCMI) distillation operation--A SOCMI operation separating one or more feed stream(s) into two or more exit streams, each exit stream having component concentrations different from those in the feed stream(s). The separation is achieved by the redistribution of the components between the liquid and vapor-phase as they approach equilibrium within the distillation unit.(5) Synthetic Organic Chemical Manufacturing Industry (SOCMI) distillation unit--A SOCMI device or vessel in which distillation operations occur, including all associated internals (including, but not limited to, trays and packing), accessories (including, but not limited to, reboilers, condensers, vacuum pumps, and steam jets), and recovery devices (such as absorbers, carbon adsorbers, and condensers) which are capable of, and used for, recovering chemicals for use, reuse, or sale.(6) Synthetic Organic Chemical Manufacturing Industry (SOCMI) reactor process--A SOCMI unit operation in which one or more chemicals, or reactants other than air, are combined or decomposed in such a way that their molecular structures are altered and one or more new organic compounds are formed.</content><note type="source"><p>Source Note: The provisions of this §115.120 adopted to be effective January 18, 2001, 26 TexReg 493; amended to be effective January 17, 2003, 28 TexReg 113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.121"><num value="115.121">§115.121</num><heading>Emission Specifications</heading><content>(a) For all persons in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), the following emission specifications shall apply.(1) No person may allow a vent gas stream containing volatile organic compounds (VOC) to be emitted from any process vent, unless the vent gas stream is controlled properly in accordance with §115.122(a)(1) of this title (relating to Control Requirements). Vent gas streams include emissions from compressor rod packing that are contained and routed through a vent, except from compressors subject to Division 7 of this subchapter (relating to Oil and Natural Gas in Ozone Nonattainment Areas), and emissions from a glycol dehydrator still vent.(2) No person may allow a vent gas stream to be emitted from the following processes unless the vent gas stream is controlled properly in accordance with §115.122(a)(2) of this title:(A) any synthetic organic chemical manufacturing industry reactor process or distillation operation;(B) any air oxidation synthetic organic chemical manufacturing process;(C) any liquid phase polypropylene manufacturing process;(D) any liquid phase slurry high-density polyethylene manufacturing process; or(E) any continuous polystyrene manufacturing process.(3) In the Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title, VOC emissions from bakery ovens, shall be controlled properly in accordance with §115.122(a)(3) of this title.(4) Any vent gas stream in the Houston-Galveston-Brazoria area which includes a highly-reactive volatile organic compound, as defined in §115.10 of this title, is subject to the requirements of Subchapter H of this chapter (relating to Highly-Reactive Volatile Organic Compounds) in addition to the applicable requirements of this division.(b) In Nueces and Victoria Counties, no person may allow a vent gas stream to be emitted from any process vent containing one or more of the following VOC or classes of VOC, unless the vent gas stream is controlled properly in accordance with §115.122(b) of this title:(1) emissions of ethylene associated with the formation, handling, and storage of solidified low-density polyethylene;(2) emissions of the following specific VOC: ethylene, butadiene, isobutylene, styrene, isoprene, propylene, methylstyrene; and(3) emissions of specified classes of VOC, including aldehydes, alcohols, aromatics, ethers, olefins, peroxides, amines, acids, esters, ketones, sulfides, and branched chain hydrocarbons (C8 and above).(c) For persons in Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties, the following emission specifications shall apply. The emission specifications of this subsection no longer apply for sources located in Bexar County beginning January 1, 2025.(1) No person may allow a vent gas stream to be emitted from any process vent containing one or more of the following VOC or classes of VOC, unless the vent gas stream is controlled properly in accordance with §115.122(c)(1) of this title:(A) emissions of ethylene associated with the formation, handling, and storage of solidified low-density polyethylene;(B) emissions of the following specific VOC: ethylene, butadiene, isobutylene, styrene, isoprene, propylene, and methylstyrene; and(C) emissions of specified classes of VOC, including aldehydes, alcohols, aromatics, ethers, olefins, peroxides, amines, acids, esters, ketones, sulfides, and branched chain hydrocarbons (C8 and above).(2) No person may allow a vent gas stream to be emitted from any catalyst regeneration of a petroleum or chemical process system, basic oxygen furnace, or fluid coking unit into the atmosphere, unless the vent gas stream is properly controlled in accordance with §115.122(c)(2) of this title.(3) No person may allow a vent gas stream to be emitted from any iron cupola into the atmosphere, unless the vent gas stream is properly controlled in accordance with §115.122(c)(3) of this title.(4) Vent gas streams from blast furnaces shall be controlled properly in accordance with §115.122(c)(4) of this title.</content><note type="source"><p>Source Note: The provisions of this §115.121 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective January 27, 1995, 20 TexReg 221; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective July 21,2021,46 TexReg 4313; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.122"><num value="115.122">§115.122</num><heading>Control Requirements</heading><content>(a) For all persons in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, the following control requirements shall apply.(1) Any vent gas streams affected by §115.121(a)(1) of this title (relating to Emission Specifications) must be controlled properly with a control efficiency of at least 90% or to a volatile organic compound (VOC) concentration of no more than 20 parts per million by volume (ppmv) (on a dry basis corrected to 3.0% oxygen for combustion devices):(A) in a direct-flame incinerator at a temperature equal to or greater than 1,300 degrees Fahrenheit;(B) in a smokeless flare that is lit at all times when VOC vapors are routed to the flare; or(C) by any other vapor control system, as defined in §115.10 of this title (relating to Definitions). A glycol dehydrator reboiler burning the vent stream from the still vent is a vapor control system.(2) Any vent gas streams affected by §115.121(a)(2) of this title must be controlled properly with a control efficiency of at least 98% or to a VOC concentration of no more than 20 ppmv (on a dry basis corrected to 3.0% oxygen for combustion devices):(A) in a smokeless flare that is lit at all times when VOC vapors are routed to the flare; or(B) by any other vapor control system, as defined in §115.10 of this title.(3) For the Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, VOC emissions from each bakery with a bakery oven vent gas stream(s) affected by §115.121(a)(3) of this title shall be reduced as follows.(A) Each bakery in the Houston-Galveston-Brazoria area with a total weight of VOC emitted from all bakery ovens on the property, when uncontrolled, equal to or greater than 25 tons per calendar year shall ensure that the overall emission reduction from the uncontrolled VOC emission rate of the oven(s) is at least 80%.(B) Through November 6, 2025, each bakery in the Dallas-Fort Worth area, except in Wise County, with a total weight of VOC emitted from all bakery ovens on the property, when uncontrolled, equal to or greater than 50 tons per calendar year, shall ensure that the overall emission reduction from the uncontrolled VOC emission rate of the oven(s) is at least 80%. Beginning November 7, 2025, each bakery in the Dallas-Fort Worth area, including Wise County, with a total weight of VOC emitted from all bakery ovens on the property, when uncontrolled, equal to or greater than 25 tons per calendar year, shall ensure that the overall emission reduction from the uncontrolled VOC emission rate of the oven(s) is at least 80%.(C) Each bakery in the Dallas-Fort Worth with a total weight of VOC emitted from all bakery ovens on the property, when uncontrolled, equal to or greater than 25 tons per calendar year, but less than 50 tons per calendar year, shall reduce total VOC emissions by at least 30% from the bakery's 1990 emissions inventory in accordance with the schedule specified in §115.129(d) of this title (relating to Counties and Compliance Schedules). The requirements of this subparagraph no longer apply beginning November 7, 2025.(D) Each bakery in the El Paso area with a total weight of VOC emitted from all bakery ovens on the property, when uncontrolled, equal to or greater than 25 tons per calendar year shall reduce total VOC emissions by at least 30% from the bakery's 1990 emissions inventory in accordance with the schedule specified in §115.129(e) of this title.(E) Each bakery in the Bexar County area with a total weight of VOC emitted from all bakery ovens on the property, when uncontrolled, equal to or greater than 100 tons per calendar year, shall ensure that the overall emission reduction from the uncontrolled VOC emission rate of the oven(s) is at least 80%.(F) Emission reductions in the 30% to 90% range are not creditable under Chapter 101, Subchapter H, Division 1 of this title (relating to Emission Credit Program) for the following bakeries:(i) each bakery in the Houston-Galveston-Brazoria area with a total weight of VOC emitted from all bakery ovens on the property, when uncontrolled, equal to or greater than 25 tons per calendar year;(ii) each bakery in the Dallas-Fort Worth area with a total weight of VOC emitted from all bakery ovens on the property, when uncontrolled, equal to or greater than 50 tons per calendar year through November 6, 2025 and 25 tons per calendar year beginning November 7, 2025;(iii) each bakery in the El Paso area with a total weight of VOC emitted from all bakery ovens on the property, when uncontrolled, equal to or greater than 50 tons per calendar year; and(iv) each bakery in the Bexar County area with a total weight of VOC emitted from all bakery ovens on the property, when uncontrolled, equal to or greater than 100 tons per calendar year.(4) Any vent gas stream that becomes subject to the provisions of paragraphs (1), (2), or (3) of this subsection by exceeding provisions of §115.127(a) of this title (relating to Exemptions) shall remain subject to the provisions of this subsection, even if throughput or emissions later fall below the exemption limits unless and until emissions are reduced to no more than the controlled emissions level existing before implementation of the project by which throughput or emission rate was reduced to less than the applicable exemption limits in §115.127(a) of this title; and:(A) the project by which throughput or emission rate was reduced is authorized by any permit or permit amendment or standard permit or permit by rule required by Chapter 116 or Chapter 106 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification; and Permits by Rule). If a permit by rule is available for the project, compliance with this subsection must be maintained for 30 days after the filing of documentation of compliance with that permit by rule; or(B) if authorization by permit, permit amendment, standard permit, or permit by rule is not required for the project, the owner or operator has given the executive director 30 days' notice of the project in writing.(b) For all persons in Nueces and Victoria Counties, any vent gas streams affected by §115.121(b) of this title must be controlled properly with a control efficiency of at least 90% or to a VOC concentration of no more than 20 ppmv (on a dry basis corrected to 3.0% oxygen for combustion devices):(1) in a direct-flame incinerator at a temperature equal to or greater than 1,300 degrees Fahrenheit;(2) in a smokeless flare that is lit at all times when VOC vapors are routed to the flare; or(3) by any other vapor control system, as defined in §115.10 of this title.(c) For all persons in Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties, the following control requirements shall apply. The control requirements of the subsection no longer apply for sources located in Bexar County beginning January 1, 2025.(1) Any vent gas streams affected by §115.121(c)(1) of this title must be controlled properly:(A) in a direct-flame incinerator at a temperature equal to or greater than 1,300 degrees Fahrenheit;(B) in a smokeless flare that is lit at all times when VOC vapors are routed to the flare; or(C) by any other vapor control system, as defined in §115.10 of this title, with a control efficiency of at least 90% or to a VOC concentration of no more than 20 ppmv (on a dry basis corrected to 3.0% oxygen for combustion devices).(2) Any vent gas streams affected by §115.121(c)(2) of this title must be controlled properly:(A) in a direct-flame incinerator or boiler at a temperature equal to or greater than 1,300 degrees Fahrenheit; or(B) by any other vapor control system, as defined in §115.10 of this title, with a control efficiency of at least 90% or to a VOC concentration of no more than 20 ppmv (on a dry basis corrected to 3.0% oxygen for combustion devices).(3) Any vent gas streams affected by §115.121(c)(3) of this title must be controlled properly:(A) at a temperature equal to or greater than 1,300 degrees Fahrenheit in an afterburner having a retention time of at least one-fourth of a second, and having a steady flame that is not affected by the cupola charge and relights automatically if extinguished; or(B) by any other vapor control system, as defined in §115.10 of this title, with a control efficiency of at least 90% or to a VOC concentration of no more than 20 ppmv (on a dry basis corrected to 3.0% oxygen for combustion devices).(4) Any vent gas streams affected by §115.121(c)(4) of this title must be controlled properly:(A) in a smokeless flare that is lit at all times when VOC vapors are routed to the flare or in a combustion device used in a heating process associated with the operation of a blast furnace; or(B) by any other vapor control system, as defined in §115.10 of this title, with a control efficiency of at least 90% or to a VOC concentration of no more than 20 ppmv (on a dry basis corrected to 3.0% oxygen for combustion devices).</content><note type="source"><p>Source Note: The provisions of this §115.122 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3717; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective January 27, 1995, 20 TexReg 221; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective March 21, 1999, 24 TexReg 1777; amended to be effective January 18,2001,26TexReg 493; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.123"><num value="115.123">§115.123</num><heading>Alternate Control Requirements</heading><content>(a) The alternate control requirements for vent gas streams in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas are as follows.(1) Alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division (relating to Vent Gas Control) may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.(2) The owner or operator of a synthetic organic chemical manufacturing industry (SOCMI) reactor process or distillation operation in which vent gas stream emissions are controlled by a control device with a control efficiency of at least 90% which was installed before December 3, 1993 may request an alternate reasonably available control technology (ARACT) determination. The executive director may approve the ARACT if it is determined to be economically unreasonable to replace the control device with a new control device meeting the requirements of §115.122(a)(2) of this title (relating to Control Requirements). Each ARACT approved by the executive director shall include a requirement that the control device be operated at its maximum efficiency. Each ARACT shall only be valid until the control device undergoes a replacement, a modification as defined in 40 Code of Federal Regulations (CFR) §60.14 (October 17, 2000), or a reconstruction as defined in 40 CFR §60.15 (December 16, 1975), at which time the replacement, modified, or reconstructed control device shall meet the requirements of §115.122(a)(2) of this title. Any request for an ARACT determination shall be submitted to the executive director in writing no later than May 31, 1994. The executive director may direct the holder of an ARACT to reapply for an ARACT if it is more than ten years since the date of installation of the control device and there is good cause to believe that it is now economically reasonable to meet the requirements of §115.122(a)(2) of this title. Within three months of an executive director request, the holder of an ARACT shall reapply for an ARACT. If the reapplication for an ARACT is denied, the holder of the ARACT shall meet the requirements of §115.122(a)(2) of this title as soon as practicable, but no later than two years from the date of the executive director's written notification of denial.(b) For all persons in Nueces and Victoria Counties, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division may be approved by the executive director in accordance with §115.910 of this title if emission reductions are demonstrated to be substantially equivalent.(c) For all persons in Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division may be approved by the executive director in accordance with §115.910 of this title if emission reductions are demonstrated to be substantially equivalent. The alternate methods of demonstrating continuous compliance available under this subsection no longer apply for sources located in Bexar County beginning January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §115.123 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective January 27, 1995, 20 TexReg 221; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective March 21, 1999, 24 TexReg 1777; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.125"><num value="115.125">§115.125</num><heading>Testing Requirements</heading><content>Compliance with the emission specifications, vapor control system efficiency, and certain control requirements and exemption criteria of §§115.121 - 115.123 and 115.127 of this title (relating to Emission Specifications; Control Requirements; Alternate Control Requirements; and Exemptions) shall be determined by applying one or more of the following test methods and procedures, as appropriate, when specifically required within this division, when required by the executive director under §101.8 of this title (relating to Sampling), or when the owner or operator elects to conduct testing of one or more vent gas streams.(1) Flow rate. Test Methods 1-4 (40 Code of Federal Regulations (CFR) Part 60, Appendix A) are used for determining flow rates, as necessary.(2) Concentration of volatile organic compounds (VOC).(A) Test Method 18 (40 CFR Part 60, Appendix A) is used for determining gaseous organic compound emissions by gas chromatography.(B) Test Method 21 (40 CFR Part 60, Appendix A-7) for determining VOC concentrations for the purpose of determining breakthrough on a carbon adsorption system or carbon adsorber.(C) Test Method 25 (40 CFR Part 60, Appendix A) is used for determining total gaseous nonmethane organic emissions as carbon.(D) Test Methods 25A or 25B (40 CFR Part 60, Appendix A) are used for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis.(3) Performance requirements for flares and vapor combustors.(A) For flares, Test Method 22 (40 CFR Part 60, Appendix A) is used for visual determination of fugitive emissions from material sources and smoke emissions.(B) For flares, additional test method requirements are described in 40 CFR §60.18(f), unless the United States Environmental Protection Agency (EPA) or the executive director has granted a waiver from such testing requirements.(C) Flares in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, and Houston-Galveston-Brazoria areas shall comply with the performance test requirements of 40 CFR §60.18(b), unless EPA or the executive director has granted a waiver from such testing requirements.(D) For vapor combustors, the owner or operator may consider the unit to be a flare. Each vapor combustor in Victoria County and the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas which the owner or operator elected to consider as a flare shall meet the performance test requirements of 40 CFR §60.18(b) in lieu of any testing under paragraphs (1) and (2) of this section.(E) Compliance with the requirements of 40 CFR §60.18(b) will be considered to demonstrate compliance with the emission specifications and control efficiency requirements of §115.121 and §115.122 of this title.(4) Minor modifications. Minor modifications to these test methods may be used, if approved by the executive director.(5) Alternate test methods. Test methods other than those specified in paragraphs (1) - (3) of this section may be used if validated by 40 CFR 63, Appendix A, Test Method 301. For the purposes of this paragraph, substitute "executive director" each place that Test Method 301 references "administrator."</content><note type="source"><p>Source Note: The provisions of this §115.125 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective January 18, 2001, 26 TexReg 493; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.126"><num value="115.126">§115.126</num><heading>Monitoring and Recordkeeping Requirements</heading><content>The owner or operator of any facility which emits volatile organic compounds (VOC) through a stationary vent in Aransas, Calhoun, Matagorda, Nueces, San Patricio, Travis, and Victoria Counties or in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas shall maintain the following information at the facility for at least five years. The owner or operator shall make the information available upon request to representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution control agency having jurisdiction in the area.(1) Vapor control systems. For vapor control systems used to control emissions in Victoria County and in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, from vents subject to the provisions of §115.121 of this title (relating to Emission Specifications), records of appropriate parameters to demonstrate compliance, including:(A) continuous monitoring and recording of:(i) the exhaust gas temperature immediately downstream of a direct-flame incinerator;(ii) the inlet and outlet gas temperatures of a catalytic incinerator or chiller;(iii) the exhaust gas temperature immediately downstream of a vapor combustor. Alternatively, the owner or operator of a vapor combustor may consider the unit to be a flare and meet the requirements specified in 40 Code of Federal Regulations (CFR) §60.18(b) and Chapter 111 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter) for flares; and(iv) for a carbon adsorption system or carbon adsorber, as defined in §101.1 of this title (relating to Definitions), the owner or operator shall:(I) continuously monitor the exhaust gas VOC concentration of a carbon adsorption system that regenerates the carbon bed directly to determine breakthrough. For the purpose of this subclause, breakthrough is defined as a measured VOC concentration exceeding 100 parts per million by volume above background expressed as methane; and(II) switch the vent gas flow to fresh carbon at a regular predetermined time interval for a carbon adsorber or carbon adsorption system that does not regenerate the carbon directly. The time interval must be less than the carbon replacement interval determined by the maximum design flow rate and the VOC concentration in the gas stream vented to the carbon adsorption system or carbon adsorber.(B) in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, and Houston-Galveston-Brazoria areas, the requirements specified in 40 CFR §60.18(b) and Chapter 111 of this title for flares; and(C) for vapor control systems other than those specified in subparagraphs (A) and (B) of this paragraph, records of appropriate operating parameters.(2) Test results. A record of the results of any testing conducted in accordance with §115.125 of this title (relating to Testing Requirements).(3) Records for exempted vents. Records for each vent exempted from control requirements in accordance with §115.127 of this title (relating to Exemptions) shall be sufficient to demonstrate compliance with the applicable exemption limit, including the following, as appropriate:(A) the pounds of ethylene emitted per 1,000 pounds of low-density polyethylene produced;(B) the combined weight of VOC of each vent gas stream on a daily basis;(C) the concentration of VOC in each vent gas stream on a daily basis;(D) the maximum design flow rate or VOC concentration of each vent gas stream exempt under §115.127(a)(4)(C) of this title; and(E) the total design capacity of process units exempt under §115.127(a)(4)(B) of this title.(4) Alternative records for exempted vents. As an alternative to the requirements of paragraph (3)(B) and (C) of this section, records for each vent exempted from control requirements in accordance with §115.127 of this title and having a VOC emission rate or concentration less than the applicable exemption limits at maximum actual operating conditions shall be sufficient to demonstrate continuous compliance with the applicable exemption limit. These records shall include complete information from either test results or appropriate calculations which clearly documents that the emission characteristics at maximum actual operating conditions are less than the applicable exemption limit. This documentation shall include the operating parameter levels that occurred during any testing, and the maximum levels feasible (either VOC concentration or mass emission rate) for the process.(5) Bakeries. For bakeries subject to §115.122(a)(3)(A) - (B) of this title (relating to Control Requirements), the following additional requirements apply.(A) The owner or operator of each bakery in the Houston-Galveston-Brazoria area with a total weight of VOC emitted from all bakery ovens on the property, when uncontrolled, equal to or greater than 25 tons per calendar year, shall submit a control plan no later than March 31, 2001, to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction. The plan shall demonstrate that the overall emission reduction from the uncontrolled VOC emission rate of the oven(s) will be at least 80% by December 31, 2001. At a minimum, the control plan shall include the emission point number (EPN) and the facility identification number (FIN) of each bakery oven and any associated control device, a plot plan showing the location, EPN, and FIN of each bakery oven and any associated control device, and the 2000 VOC emission rates (consistent with the bakery's 2000 emissions inventory). The projected 2002 VOC emission rates shall be calculated in a manner consistent with the 2000 emissions inventory.(B) All representations in control plans become enforceable conditions. It shall be unlawful for any person to vary from such representations if the variation will cause a change in the identity of the specific emission sources being controlled or the method of control of emissions unless the owner or operator of the bakery submits a revised control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction within 30 days of the change. All control plans shall include documentation that the overall emission reduction from the uncontrolled VOC emission rate of the bakery's oven(s) continues to be at least the specified percentage reduction. The emission rates shall be calculated in a manner consistent with the most recent emissions inventory.(6) Bakeries (contingency measures). For bakeries subject to §115.122(a)(3)(C) and (D) of this title, the following additional requirements apply.(A) No later than six months after the commission publishes notification in the Texas Register as specified in §115.129(d) or (e) of this title (relating to Counties and Compliance Schedules), the owner or operator of each bakery shall submit an initial control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall reduction of VOC emissions from the bakery's 1990 emissions inventory will be at least 30%. At a minimum, the control plan shall include the EPN and the FIN of each bakery oven and any associated control device, a plot plan showing the location, EPN, and FIN of each bakery oven and any associated control device, and the 1990 VOC emission rates (consistent with the bakery's 1990 emissions inventory). The projected VOC emission rates shall be calculated in a manner consistent with the 1990 emissions inventory.(B) In order to document continued compliance with §115.122(a)(3) of this title, the owner or operator of each bakery shall submit an annual report no later than March 31 of each year to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall reduction of VOC emissions from the bakery's 1990 emissions inventory during the preceding calendar year is at least 30%. At a minimum, the report shall include the EPN and FIN of each bakery oven and any associated control device, a plot plan showing the location, EPN, and FIN of each bakery oven and any associated control device, and the VOC emission rates. The emission rates for the proceeding calendar year shall be calculated in a manner consistent with the 1990 emissions inventory.(C) All representations in control plans and annual reports become enforceable conditions. It shall be unlawful for any person to vary from such representations if the variation will cause a change in the identity of the specific emission sources being controlled or the method of control of emissions unless the owner or operator of the bakery submits a revised control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction within 30 days of the change. All control plans and reports shall include documentation that the overall reduction of VOC emissions from the bakery's 1990 emissions inventory continues to be at least 30%. The emission rates shall be calculated in a manner consistent with the 1990 emissions inventory.(7) Additional flare requirements. The owner or operator of a facility that uses a flare to meet the requirements of §115.122(a)(2) of this title shall install, calibrate, maintain, and operate according to the manufacturer's specifications, a heat-sensing device, such as an ultraviolet beam sensor or thermocouple, at the pilot light to indicate continuous presence of a flame.</content><note type="source"><p>Source Note: The provisions of this §115.126 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3717; amended to be effective November 1, 1991, 16 TexReg 5838; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective March 21, 1999, 24 TexReg 1777; amended to be effective January 18, 2001, 26 TexReg 493; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.127"><num value="115.127">§115.127</num><heading>Exemptions</heading><content>(a) For all persons in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, the following exemptions apply. In cases where vent gas streams emanating from multiple process locations are combined, compliance with the exemptions of this section is determined after the combination of the streams but prior to the combined stream entering a control device, if present.(1) A vent gas stream from a low-density polyethylene plant is exempt from the requirements of §115.121(a)(1) of this title (relating to Emission Specifications) if no more than 1.1 pounds of ethylene per 1,000 pounds of product are emitted from all the vent gas streams associated with the formation, handling, and storage of solidified product.(2) The following vent gas streams are exempt from the requirements of §115.121(a)(1) of this title:(A) a vent gas stream having a combined weight of volatile organic compounds (VOC) equal to or less than 100 pounds in any continuous 24-hour period;(B) a vent gas stream specified in §115.121(a)(1) of this title with a concentration of VOC less than 612 parts per million by volume (ppmv);(C) a vent gas stream which is subject to §115.121(a)(2) or (3) of this title; and(D) a vent gas stream which qualifies for exemption under paragraphs (3), (4)(B), (4)(C), (4)(D), (4)(E), or (5) of this subsection.(3) The following vent gas streams are exempt from the requirements of §115.121(a)(2)(B) - (E) of this title:(A) a vent gas stream having a combined weight of VOC equal to or less than 100 pounds in any continuous 24-hour period;(B) a vent gas stream from any air oxidation synthetic organic chemical manufacturing process with a concentration of VOC less than 612 ppmv; and(C) a vent gas stream from any liquid phase polypropylene manufacturing process, any liquid phase slurry high-density polyethylene manufacturing process, and any continuous polystyrene manufacturing process with a concentration of VOC less than 408 ppmv.(4) For synthetic organic chemical manufacturing industry (SOCMI) reactor processes and distillation operations, the following exemptions apply.(A) Any reactor process or distillation operation that is designed and operated in a batch mode is exempt from the requirements of §115.121(a)(2)(A) of this title. For the purposes of this subparagraph, batch mode means any noncontinuous reactor process or distillation operation which is not characterized by steady-state conditions, and in which the addition of reactants does not occur simultaneously with the removal of products.(B) Any reactor process or distillation operation operating in a process unit with a total design capacity of less than 1,100 tons per year, for all chemicals produced within that unit, is exempt from the requirements of §115.121(a)(2)(A) of this title.(C) Any reactor process or distillation operation vent gas stream with a flow rate less than 0.388 standard cubic feet per minute or a VOC concentration less than 500 ppmv is exempt from the requirements of §115.121(a)(2)(A) of this title.(D) Any distillation operation vent gas stream which meets the requirements of 40 Code of Federal Regulations (CFR) §60.660(c)(4) or §60.662(c) (concerning Subpart NNN--Standards of Performance for VOC Emissions From SOCMI Distillation Operations, December 14, 2000) is exempt from the requirements of §115.121(a)(2)(A) of this title.(E) Any reactor process vent gas stream which meets the requirements of 40 CFR §60.700(c)(2) or §60.702(c) (concerning Subpart RRR--Standards of Performance for VOC Emissions From SOCMI Reactor Processes, December 14, 2000) is exempt from the requirements of §115.121(a)(2)(A) of this title.(5) Bakeries are exempt from the requirements of §115.121(a)(3) and §115.122(a)(3) of this title (relating to Emission Specifications and Control Requirements) if the total weight of VOC emitted from all bakery ovens on the property, when uncontrolled, is less than 25 tons per calendar year.(6) A vent gas stream is exempt from this division if all of the VOCs in the vent gas stream originate from a source(s) for which another division within Chapter 115 (for example, Storage of Volatile Organic Compounds) has established a control requirement(s), emission specification(s), or exemption(s) which applies to that VOC source category in that county.(7) A combustion unit exhaust stream is exempt from this division provided that the unit is not being used as a control device for any vent gas stream which is subject to this division and which originates from a non-combustion source.(8) As an alternative to complying with the requirements of this division (or, in the case of bakeries, as an alternative to complying with the requirements of §115.121(a)(1) and §115.122(a)(1) of this title) for a source that is addressed by a Chapter 115 contingency rule (i.e., one in which Chapter 115 requirements are triggered for that source by the commission publishing notification in the Texas Register that implementation of the contingency rule is necessary), the owner or operator of that source may instead choose to comply with the requirements of the contingency rule as though the contingency rule already had been implemented for that source. The owner or operator of each source choosing this option shall submit written notification to the executive director and any local air pollution control program with jurisdiction. When the executive director and the local program (if any) receive such notification, the source will then be considered subject to the contingency rule as though the contingency rule already had been implemented for that source.(b) For all persons in Nueces and Victoria Counties, the following exemptions apply. In cases where vent gas streams emanating from multiple process locations are combined, compliance with the exemptions of this subsection is determined after the combination of the streams, but prior to the combined stream entering a control device, if present.(1) A vent gas stream from a low-density polyethylene plant is exempt from the requirements of §115.121(b)(1) of this title if no more than 1.1 pounds of ethylene per 1,000 pounds of product are emitted from all the vent gas streams associated with the formation, handling, and storage of the solidified product.(2) The following vent gas streams are exempt from the requirements of §115.121(b) of this title:(A) a vent gas stream having a combined weight of the VOC or classes of compounds specified in §115.121(b)(2) and (3) of this title equal to or less than 100 pounds in any continuous 24-hour period; and(B) a vent gas stream with a concentration of the VOC or classes of compounds specified in §115.121(b)(2) and (3) of this title less than 30,000 ppmv.(3) A vent gas stream is exempt from this division if all of the VOCs in the vent gas stream originate from a source(s) for which another division within Chapter 115 (for example, Storage of Volatile Organic Compounds) has established a control requirement(s), emission specification(s), or exemption(s) which applies to that VOC source category in that county.(4) A combustion unit exhaust stream is exempt from this division provided that the unit is not being used as a control device for any vent gas stream which is subject to this division and which originates from a non-combustion source.(c) For all persons in Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties, the following exemptions apply. In cases where vent gas streams emanating from multiple process locations are combined, compliance with the exemptions of this subsection is determined after the combination of the streams, but prior to the combined stream entering a control device, if present. The provisions of this subsection no longer apply for sources located in Bexar County beginning January 1, 2025.(1) The following vent gas streams are exempt from the requirements of §115.121(c)(1) of this title:(A) a vent gas stream from a low-density polyethylene plant provided that no more than 1.1 pounds of ethylene per 1,000 pounds of product are emitted from all the vent gas streams associated with the formation, handling, and storage of solidified product;(B) a vent gas stream having a combined weight of the VOC or classes of compounds specified in §115.121(c)(1)(B) - (C) of this title equal to or less than 100 pounds in any continuous 24-hour period; and(C) a vent gas stream having a concentration of the VOC specified in §115.121(c)(1)(B) and (C) of this title less than 30,000 ppmv.(2) A vent gas stream specified in §115.121(c)(2) of this title which emits less than or equal to five tons of total uncontrolled VOC in any one calendar year is exempt from the requirements of §115.121(c)(2) of this title.(3) A vent gas stream is exempt from this division if all of the VOCs in the vent gas stream originate from a source(s) for which another division within Chapter 115 (for example, Storage of Volatile Organic Compounds) has established a control requirement(s), emission specification(s), or exemption(s) which applies to that VOC source category in that county.(4) A combustion unit exhaust stream is exempt from this division provided that the unit is not being used as a control device for any vent gas stream which is subject to this division and which originates from a non-combustion source.</content><note type="source"><p>Source Note: The provisions of this §115.127 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective January 27, 1995, 20 TexReg 221; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective November 16, 1999, 24 TexReg 10555; amended to be effective January 18, 2001, 26TexReg 493; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.129"><num value="115.129">§115.129</num><heading>Counties and Compliance Schedules</heading><content>(a) Except as specified in subsection (g) of this section, in Aransas, Bexar, Brazoria, Calhoun, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, Matagorda, Montgomery, Nueces, Orange, San Patricio, Travis, Victoria, and Waller Counties, the compliance date has passed and the owner or operator of each vent gas stream shall continue to comply with existing provisions in this division.(b) The owner or operator of each bakery in Collin, Dallas, Denton, and Tarrant Counties subject to §115.122(a)(3)(C) of this title (relating to Control Requirements) shall comply with §§115.121(a)(3), 115.122(a)(3)(C), and 115.126(6) of this title (relating to Emission Specifications; Control Requirements; and Monitoring and Recordkeeping Requirements) as soon as practicable, but no later than one year, after the commission publishes notification in the Texas Register of its determination that this contingency rule is necessary as a result of failure to attain the national ambient air quality standard (NAAQS) for ozone by the attainment deadline or failure to demonstrate reasonable further progress as set forth in Federal Clean Air Act (FCAA), §172(c)(9).(c) The owner or operator of each bakery in El Paso County subject to §115.122(a)(3)(D) of this title shall comply with §§115.121(a)(3), 115.122(a)(3)(D), and 115.126(6) of this title as soon as practicable, but no later than one year, after the commission publishes notification in the Texas Register of its determination that this contingency rule is necessary as a result of failure to attain the NAAQS for ozone by the attainment deadline or failure to demonstrate reasonable further progress as set forth in FCAA, §172(c)(9).(d) The owner or operator of each vent gas stream in Ellis, Johnson, Kaufman, Parker, and Rockwall Counties shall comply with this division as soon as practicable, but no later than March 1, 2009.(e) The owner or operator of each vent gas stream in Wise County shall comply with this division as soon as practicable, but no later than January 1, 2017.(f) The owner or operator of a vent gas stream in Bexar, Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise Counties that becomes subject to a new requirement of this division on or after the applicable compliance date in this section shall comply with the requirements in this division as soon as practicable, but no later than 60 days after becoming subject.(g) The owner or operator of each vent gas stream in the Bexar County area subject to the requirements of this division shall comply with the requirements of §115.121(c), §115.122(c), §115.123(c), and §115.127(c) through December 31, 2024 and all other applicable requirements of this division by no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §115.129 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3717; amended to be effective November 1, 1991, 16 TexReg 5838; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effectiveJanuary 18, 2001, 26 TexReg 493; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective December 7, 2006, 31 TexReg 9840; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.131"><num value="115.131">§115.131</num><heading>Emission Specifications</heading><content>(a) For all persons in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas as defined in §115.10 of this title (relating to Definitions), any volatile organic compound (VOC) water separator equipped with a vapor recovery system in order to comply with §115.132(a) of this title (relating to Control Requirements) shall reduce emissions such that the true partial pressure of the VOC in vent gases to the atmosphere will not exceed a level of 0.5 psia (3.4 kPa).(b) For all persons in Gregg, Nueces, and Victoria Counties, any VOC water separator equipped with a vapor recovery system in order to comply with §115.132(b) of this title shall reduce emissions such that the partial pressure of the VOC in vent gases to the atmosphere will not exceed a level of 1.5 psia (10.3 kPa).(c) For all persons in Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties, any VOC water separator equipped with a vapor recovery system in order to comply with §115.132(c) of this title shall reduce emissions such that the true partial pressure of the VOC in vent gases to the atmosphere will not exceed a level of 1.5 psia (10.3 kPa). The emission specifications of this subsection no longer apply for sources located in Bexar County beginning January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §115.131 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 20, 1995, 20 TexReg 9188; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.132"><num value="115.132">§115.132</num><heading>Control Requirements</heading><content>(a) For the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, no person shall use any single or multiple compartment volatile organic compound (VOC) water separator which separates materials containing VOC obtained from any equipment which is processing, refining, treating, storing, or handling VOC, unless each compartment is controlled in one of the following ways:(1) the compartment totally encloses the liquid contents and has all openings (such as roof seals and access doors) sealed such that the separator can hold a vacuum or pressure without emissions to the atmosphere, except through a pressure relief valve. All gauging and sampling devices shall be vapor-tight except during gauging or sampling. The pressure relief valve must be designed to open only as necessary to allow proper operation, and must be set at the maximum possible pressure necessary for proper operation, but such that the valve will not vent continuously;(2) the compartment is equipped with a floating roof or internal floating cover which will rest on the surface of the contents and be equipped with a closure seal or seals to close the space between the roof edge and tank wall. All gauging and sampling devices shall be vapor-tight except during gauging or sampling;(3) the compartment is equipped with a vapor recovery system which satisfies the provisions of §115.131(a) of this title (relating to Emission Specifications);(4) any water separator that becomes subject to the provisions of paragraph (1), (2), or (3) of this subsection by exceeding provisions of §115.137(a) of this title (relating to Exemptions) will remain subject to the provisions of this subsection, even if throughput or emissions later fall below the exemption limits unless and until emissions are reduced to no more than the controlled emissions level existing before implementation of the project by which throughput or emission rate was reduced to less than the applicable exemption limits in §115.137(a) of this title; and(A) the project by which throughput or emission rate was reduced is authorized by any permit or permit amendment or standard permit or permit by rule required by Chapter 116 or Chapter 106 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification; and Permits by Rule). If a permit by rule is available for the project, compliance with this subsection must be maintained for 30 days after the filing of documentation of compliance with that permit by rule; or(B) if authorization by permit, permit amendment, standard permit, or permit by rule is not required for the project, the owner/operator has given the executive director 30 days' notice of the project in writing.(b) For Gregg, Nueces, and Victoria Counties, no person shall use any single or multiple compartment VOC water separator which separates materials containing VOC obtained from any equipment which is processing, refining, treating, storing, or handling VOC, unless each compartment is controlled in one of the following ways:(1) the compartment totally encloses the liquid contents and has all openings (such as roof seals and access doors) sealed such that the separator can hold a vacuum or pressure without emissions to the atmosphere, except through a pressure relief valve. All gauging and sampling devices shall be vapor-tight except during gauging or sampling. The pressure relief valve must be designed to open only as necessary to allow proper operation, and must be set at the maximum possible pressure necessary for proper operation, but such that the valve will not vent continuously;(2) the compartment is equipped with a floating roof or internal floating cover which will rest on the surface of the contents and be equipped with a closure seal or seals to close the space between the roof or cover edge and tank wall. All gauging and sampling devices shall be vapor-tight, except during gauging or sampling;(3) the compartment is equipped with a vapor recovery system which satisfies the provisions of §115.131(b) of this title.(c) For Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties, no person shall use any single or multiple compartment VOC water separator which separates materials containing VOC obtained from any equipment which is processing, refining, treating, storing, or handling VOC, unless each compartment is controlled in one of the following ways. The control requirements of this subsection no longer apply for sources located in Bexar County beginning January 1, 2025.(1) The compartment totally encloses the liquid contents and has all openings (such as roof seals and access doors) sealed such that the separator can hold a vacuum or pressure without emissions to the atmosphere, except through a pressure relief valve. All gauging and sampling devices shall be vapor-tight except during gauging or sampling. The pressure relief valve must be designed to open only as necessary to allow proper operation, and must be set at the maximum possible pressure necessary for proper operation, but such that the valve will not vent continuously.(2) The compartment is equipped with a floating roof or internal floating cover which will rest on the surface of the contents and be equipped with a closure seal or seals to close the space between the roof or cover edge and tank wall. All gauging and sampling devices shall be vapor-tight except during gauging or sampling.(3) The compartment is equipped with a vapor recovery system which satisfies the provisions of §115.131(c) of this title.</content><note type="source"><p>Source Note: The provisions of this §115.132 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3717; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective November 20, 1995, 20 TexReg 9188; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.133"><num value="115.133">§115.133</num><heading>Alternate Control Requirements</heading><content>Alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division (relating to Water Separation) may be approved by the executive director in accordance with §115.910 of this title (relating to Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.</content><note type="source"><p>Source Note: The provisions of this §115.133 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 20, 1995, 20 TexReg 9188; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.135"><num value="115.135">§115.135</num><heading>Testing Requirements</heading><content>(a) For the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, compliance with §115.131(a), §115.132(a), and §115.137 of this title (relating to Emission Specifications; Control Requirements; and Exemptions) shall be determined by applying the following test methods, as appropriate:(1) Test Methods 1-4 (40 Code of Federal Regulations 60, Appendix A) for determining flow rate, as necessary;(2) Test Method 18 (40 Code of Federal Regulations 60, Appendix A) for determining gaseous organic compound emissions by gas chromatography;(3) Test Method 25 (40 Code of Federal Regulations 60, Appendix A) for determining total gaseous nonmethane organic emissions as carbon;(4) Test Methods 25A or 25B (40 Code of Federal Regulations 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis;(5) determination of true vapor pressure at actual storage temperature using American Society for Testing Materials (ASTM) Test Methods D323-89, D2879, D4953, D5190, or D5191; using API Publication 2517, Third Edition, 1989 or standard reference texts to convert from Reid vapor pressure to true vapor pressure, where applicable; or(6) minor modifications to these test methods approved by the executive director.(b) For Gregg, Nueces, and Victoria Counties, compliance with §115.131(b), §115.132(b), and §115.137(b) of this title shall be determined by applying the following test methods, as appropriate:(1) Test Methods 1-4 (40 Code of Federal Regulations 60, Appendix A) for determining flow rate as necessary;(2) Test Method 18 (40 Code of Federal Regulations 60, Appendix A) for determining gaseous organic compound emissions by gas chromatography;(3) Test Method 25 (40 Code of Federal Regulations 60, Appendix A) for determining total gaseous nonmethane organic emissions as carbon;(4) Test Methods 25A or 25B (40 Code of Federal Regulations 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis;(5) determination of true vapor pressure at actual storage temperature using ASTM Test Methods D323-89, D2879, D4953, D5190, or D5191; and using API Publication 2517, Third Edition, 1989 or standard reference texts to convert from Reid vapor pressure to true vapor pressure, where applicable; or(6) minor modifications to these test methods approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.135 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 20, 1995, 20 TexReg 9188; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.136"><num value="115.136">§115.136</num><heading>Monitoring and Recordkeeping Requirements</heading><content>(a) For the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, the following recordkeeping requirements shall apply.(1) Any person who operates a single or multiple compartment volatile organic compound (VOC) water separator without the controls specified in §115.132(a) of this title (relating to Control Requirements) shall maintain complete and up-to-date records sufficient to demonstrate continuous compliance with the applicable exemption criteria including, but not limited to, the names and true vapor pressures of all such materials stored, processed, or handled at the affected property, and any other necessary operational information.(2) Affected persons shall install and maintain monitors to continuously measure and record operational parameters of any emission control device installed to meet applicable control requirements. Such records must be sufficient to demonstrate proper functioning of those devices to design specifications, including:(A) the exhaust gas temperature immediately downstream of any direct-flame incinerator;(B) the gas temperature immediately upstream and downstream of any catalytic incinerator or chiller; and(C) the VOC concentration of any carbon adsorption system exhaust gas to determine if breakthrough has occurred.(3) Affected persons shall maintain the results of any testing conducted in accordance with the provisions specified in §115.135(a) of this title (relating to Testing Requirements).(4) All records shall be maintained at the affected facility for at least two years and be made available upon request to representatives of the executive director, EPA, or any local air pollution control agency having jurisdiction in the area.(b) For Gregg, Nueces, and Victoria Counties, the following recordkeeping requirements shall apply.(1) Any person who operates a single or multiple compartment VOC water separator without the controls specified in §115.132(b) of this title shall maintain complete and up-to-date records sufficient to demonstrate continuous compliance with the applicable exemption criteria including, but not limited to, the names and true vapor pressures of all such materials stored, processed, or handled at the affected property, and any other necessary operational information.(2) In Victoria County, affected persons shall install and maintain monitors to continuously measure and record operational parameters of any emission control device installed to meet applicable control requirements. Such records must be sufficient to demonstrate proper functioning of those devices to design specifications, including:(A) the exhaust gas temperature immediately downstream of any direct-flame incinerator;(B) the gas temperature immediately upstream and downstream of any catalytic incinerator or chiller; and(C) the exhaust gas VOC concentration of any carbon adsorption system, as defined in §115.10 of this title (relating to Definitions), to determine if breakthrough has occurred.(3) Affected persons shall maintain the results of any testing conducted in accordance with the provisions specified in §115.135(b) of this title.(4) All records shall be maintained at the affected facility for at least two years and be made available upon request to representatives of the executive director, EPA, or any local air pollution control agency having jurisdiction in the area.</content><note type="source"><p>Source Note: The provisions of this §115.136 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3717; amended to be effective November 1, 1991, 16 TexReg 5838; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.137"><num value="115.137">§115.137</num><heading>Exemptions</heading><content>(a) For the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, the following exemptions shall apply.(1) Any volatile organic compound (VOC) water separator used exclusively in conjunction with the production of crude oil or condensate is exempt from §115.132(a) of this title (relating to Control Requirements) if the emissions from the separator have a combined weight of VOC equal to or less than 100 pounds (45.4 kg) in any continuous 24-hour period. When emissions from multiple sources (including, but not limited to, VOC water separators, treaters, storage tanks, and saltwater disposal tanks) are routed through a common vent, the calculation of VOC emissions for purposes of this exemption shall be based upon the total of all emission sources which are routed to the common vent. It is unacceptable to disconnect any of the multiple sources routed through a common vent for purposes of complying with this exemption.(2) Any single or multiple compartment VOC water separator which separates materials having a true vapor pressure of VOC less than 0.5 pounds per square inch absolute (psia) (3.4 kPa) obtained from any equipment is exempt from §115.132(a) of this title.(3) Any single or multiple compartment VOC water separator which is designed solely to capture stormwater, spills, or exterior surface cleanup waters is exempt from this division (relating to Water Separation), provided that the separator is fully covered. These separators are not required to be equipped with pressure/vacuum vents or vapor control systems.(b) For Gregg, Nueces, and Victoria Counties, the following exemptions shall apply.(1) VOC water separators used exclusively in conjunction with the production of crude oil or condensate are exempt from §115.132(b) of this title.(2) Any single or multiple compartment VOC water separator which separates less than 200 gallons (757 liters) a day of materials containing VOC obtained from any equipment is exempt from §115.132(b) of this title.(3) Any single or multiple compartment VOC water separator which separates materials having a true vapor pressure of VOC less than 1.5 psia (10.3 kPa) obtained from any equipment is exempt from §115.132(b) of this title.(4) In Gregg County, any single or multiple compartment VOC water separator which separates materials obtained from any equipment in a facility other than a petroleum refinery is exempt from §115.132(b) of this title.(5) Any single or multiple compartment VOC water separator which is designed solely to capture stormwater, spills, or exterior surface cleanup waters is exempt from this division, provided that the separator is fully covered. These separators are not required to be equipped with pressure/vacuum vents or vapor control systems.(c) For Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties, the following exemptions shall apply. The exemptions provided in this subsection no longer apply for sources located in Bexar County beginning January 1, 2025.(1) VOC water separators used exclusively in conjunction with the production of crude oil or condensate are exempt from §115.132(c) of this title.(2) Any single or multiple compartment VOC water separator which separates less than 200 gallons (757 liters) a day of materials containing VOC obtained from any equipment is exempt from §115.132(c) of this title.(3) Any single or multiple compartment VOC water separator which separates materials having a true vapor pressure of VOC less than 1.5 psia (10.3 kPa) obtained from any equipment is exempt from §115.132(c) of this title.(4) Any single or multiple compartment VOC water separator which is designed solely to capture stormwater, spills, or exterior surface cleanup waters is exempt from this division, provided that the separator is fully covered. These separators are not required to be equipped with pressure/vacuum vents or vapor control systems.</content><note type="source"><p>Source Note: The provisions of this §115.137 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 20, 1995, 20 TexReg 9188; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.139"><num value="115.139">§115.139</num><heading>Counties and Compliance Schedules</heading><content>(a) Except as specified in subsection (e) of this section, in Aransas, Bexar, Brazoria, Calhoun, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Gregg, Hardin, Harris, Jefferson, Liberty, Matagorda, Montgomery, Nueces, Orange, San Patricio, Tarrant, Travis, Victoria, and Waller Counties, the compliance date has passed and the owner or operator of each volatile organic compound (VOC) water separator shall continue to comply with this division.(b) The owner or operator of each VOC water separator in Ellis, Johnson, Kaufman, Parker, and Rockwall Counties shall comply with this division as soon as practicable, but no later than March 1, 2009.(c) The owner or operator of each VOC water separator in Wise County shall comply with this division as soon as practicable, but no later than January 1, 2017.(d) The owner or operator of a water separator in Bexar, Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise Counties that becomes subject to this division on or after the applicable compliance date in subsection (a), (b) or (c) of this section, shall be in compliance with the requirements in this division as soon as practicable, but no later than 60 days after becoming subject.(e) The owner or operator of each VOC water separator in the Bexar County area subject to the requirements of this division shall comply with the requirements of §115.131(c), §115.132(c), and §115.137(c) of this title (relating to Emission Specifications; Control Requirements; and Exemptions) through December 31, 2024 and all other applicable requirements of this division by no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §115.139 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3717; amended to be effective November 1, 1991, 16 TexReg 5838; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective November 20, 1995, 20 TexReg 9188; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective December 7, 2006, 31 TexReg 9840; amended to be effectiveJune 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.140"><num value="115.140">§115.140</num><heading>Industrial Wastewater Definitions</heading><content>The following terms, when used in this division, shall have the following meanings, unless the context clearly indicates otherwise. Additional definitions for terms used in this division are found in §§115.10, 101.1, and 3.2 of this title (relating to Definitions). (1) Affected source category--Any of the following source categories: (A) organic chemicals, plastics, and synthetic fibers manufacturing industry under Standard Industrial Classification (SIC) codes 2821, 2823, 2824, 2865, and 2869; (B) pesticides manufacturing industry under SIC code 2879; (C) petroleum refining industry under SIC code 2911; (D) pharmaceutical manufacturing industry under SIC codes 2833, 2834, and 2836; (E) hazardous waste treatment, storage, and disposal facilities industry under SIC codes 4952, 4953, and 4959. (2) Affected volatile organic compound (VOC) wastewater stream--A VOC wastewater stream from an affected source category with either a VOC concentration greater than or equal to 10,000 parts per million by weight (ppmw) or a VOC concentration greater than or equal to 1,000 ppmw and a flow rate greater than or equal to 10 liters per minute (2.64 gallons per minute), as determined in accordance with §115.148 of this title (relating to Determination of Wastewater Characteristics). (3) Plant--All facilities included within the same commission account number. (4) Point of generation--The location where a VOC wastewater stream exits a process unit. (5) Properly operated biotreatment unit--A suspended growth process that generates biomass and recycles biomass to maintain biomass concentrations in the treatment unit. The average concentration of suspended biomass maintained in the aeration basin of a properly operated biotreatment unit shall equal or exceed 1.0 kilogram per cubic meter (kg/m3 ), measured as total suspended solids. (6) Volatile organic compounds (VOC) wastewater--Water which, as part of a facility process, has come into contact with VOC and is intended for treatment, disposal, or discharge without further use in the process unit. (7) Water seal controls--A seal pot, p-leg trap, or other type of trap filled with water (e.g., flooded sewers that maintain water levels adequate to prevent air flow through the system) that creates a water barrier between the water level of the seal and the atmosphere. The water level of the seal must be maintained in the vertical leg of a drain in order to be considered a water seal. (8) Wet weather retention basin--An impoundment or tank that is used to store rainfall runoff that would exceed the capacity of the wastewater treatment system until it can be returned to the wastewater treatment system or, if the water meets the applicable discharge limits, discharged without treatment. These units may also be used to store wastewater during periods when the wastewater treatment system is shut down for maintenance or emergencies.</content><note type="source"><p>Source Note: The provisions of this §115.140 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective November 18, 1999, 24 TexReg 10095; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.142"><num value="115.142">§115.142</num><heading>Control Requirements</heading><content>The owner or operator of an affected source category within a plant in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), shall comply with the following control requirements. Any component of a wastewater storage, handling, transfer, or treatment facility, if the component contains an affected volatile organic compounds (VOC) wastewater stream, shall be controlled in accordance with either paragraph (1) or (2) of this section, except for properly operated biotreatment units which shall meet the requirements of paragraph (3) of this section. In the Dallas-Fort Worth and El Paso areas, and until December 31, 2002 in the Houston-Galveston-Brazoria area, the control requirements apply from the point of generation of an affected VOC wastewater stream until the affected VOC wastewater stream is either returned to a process unit or is treated to remove VOC so that the wastewater stream no longer meets the definition of an affected VOC wastewater stream. In the Beaumont-Port Arthur and the Bexar County areas, and after December 31, 2002 in the Houston-Galveston-Brazoria, the control requirements apply from the point of generation of an affected VOC wastewater stream until the affected VOC wastewater stream is either returned to a process unit, or is treated to reduce the VOC content of the wastewater stream by 90% by weight and also reduce the VOC content of the same VOC wastewater stream to less than 1,000 parts per million by weight. For wastewater streams which are combined and then treated to remove VOC, the amount of VOC to be removed from the combined wastewater stream shall be at least the total amount of VOC that would be removed to treat each individual affected VOC wastewater stream so that they no longer meet the definition of affected VOC wastewater stream, except for properly operated biotreatment units which shall meet the requirements of paragraph (3) of this section. For this division, a component of a wastewater storage, handling, transfer, or treatment facility shall include, but is not limited to, wastewater storage tanks, surface impoundments, wastewater drains, junction boxes, lift stations, weirs, and oil-water separators.(1) The wastewater component shall meet the following requirements.(A) All components shall be fully covered or be equipped with water seal controls. For any component equipped with water seal controls, the only acceptable alternative to water as the sealing liquid in a water seal is the use of ethylene glycol, propylene glycol, or other low vapor pressure antifreeze, which may be used only during the period of November through February. For any process drain not equipped with water seal controls, the process drain shall be equipped with a gasketed seal, or a tightly-fitting cap or plug.(B) All openings shall be closed and sealed, except when the opening is in actual use for its intended purpose or the component is maintained at a pressure less than atmospheric pressure.(C) All liquid contents shall be totally enclosed.(D) For junction boxes and vented covers, the following requirements apply.(i) In the Dallas-Fort Worth and El Paso areas, and until December 31, 2002 in the Houston-Galveston-Brazoria area, if any cover, other than a junction box cover, is equipped with a vent, the vent shall be equipped with either a vapor control system which maintains a minimum control efficiency of 90% or a closed system which prevents the flow of VOC vapors from the vent during normal operation. Any junction box vent shall be equipped with a vent pipe at least 90 centimeters (cm) (36 inches (in.)) in length and no more than 10.2 cm (4.0 in.) in diameter.(ii) In the Beaumont-Port Arthur and Bexar County areas, and after December 31, 2002 in the Houston-Galveston-Brazoria area, the following requirements apply.(I) If any cover or junction box cover, except for junction boxes described in subclause (II) of this clause, is equipped with a vent, the vent shall be equipped with either a vapor control system which maintains a minimum control efficiency of 90% or a closed system which prevents the flow of VOC vapors from the vent during normal operation.(II) Any junction box that is filled and emptied by gravity flow (i.e., there is no pump) or is operated with no more than slight fluctuations in the liquid level may be vented to the atmosphere, provided it is equipped with:(-a-) a vent pipe at least 90 cm (36 in.) in length and no more than 10.2 cm (4.0 in.) in diameter; and(-b-) water seal controls which are installed and maintained at the wastewater entrance(s) to or exit from the junction box restricting ventilation in the individual drain system and between components in the individual drain system.(E) All gauging and sampling devices shall be vapor-tight except during gauging or sampling.(F) Any loading or unloading to or from a portable container by pumping shall be performed with a submerged fill pipe.(G) All seals and cover connections shall be maintained in proper condition. For purposes of this paragraph, "proper condition" means that covers shall have a tight seal around the edge and shall be kept in place except as allowed by this division, that seals shall not be broken or have gaps, and that sewer lines shall have no visible gaps or cracks in joints, seals, or other emission interfaces.(H) If any seal or cover connection is found to not be in proper condition, a first attempt at repair shall be made no later than five calendar days after the leak or improper condition is found. The repair or correction shall be completed as soon as possible but no later than 15 calendar days after detection, unless the repair or correction is technically infeasible without requiring a process unit shutdown, in which case the repair or correction shall be made at the next process unit shutdown. Test Method 21 must be used to confirm that a leak or improper condition is repaired, and the following records shall be maintained:(i) the date on which a leak or improper condition is discovered;(ii) the date on which a first attempt at repair was made to correct the leak or improper condition;(iii) the date on which a leak or improper condition is repaired; and(iv) the date and instrument reading of the recheck procedure after a leak or improper condition is repaired.(2) If a wastewater component is equipped with an internal or external floating roof, it shall meet the following requirements.(A) All openings in an internal or external floating roof except for automatic bleeder vents (vacuum breaker vents) and rim space vents shall provide a projection below the liquid surface or be equipped with a cover, seal, or lid. Any cover, seal, or lid shall be in a closed (i.e., no visible gap) position at all times except when the opening is in actual use for its intended purpose.(B) Automatic bleeder vents (vacuum breaker vents) shall be closed at all times except when the roof is being floated off or landed on the roof leg supports.(C) Rim vents, if provided, shall be set to open only when the roof is being floated off the roof leg supports or at the manufacturer's recommended setting.(D) Any roof drain that empties into the stored liquid shall be provided with a slotted membrane fabric cover that covers at least 90% of the area of the opening.(E) There shall be no visible holes, tears, or other openings in any seal or seal fabric.(F) For external floating roof storage tanks, the secondary seals shall be the rim-mounted type (i.e., the seal shall be continuous from the floating roof to the tank wall). The accumulated area of gaps that exceed 1/8 in. (0.32 cm) in width between the secondary seal and tank wall shall be no greater than 1.0 in. 2 per foot (21 cm2 /meter) of tank diameter.(3) In the Beaumont-Port Arthur and Bexar County areas, and after December 31, 2002 in the Houston-Galveston-Brazoria area, each properly operated biotreatment unit shall meet the following requirements.(A) The VOC content of the wastewater shall be reduced by 90% by weight; and(B) The average concentration of suspended biomass maintained in the aeration basin of the biotreatment unit shall equal or exceed 1.0 kilogram per cubic meter (kg/m3 ), measured as total suspended solids.(4) Any wastewater component that becomes subject to this division by exceeding the provisions of §115.147 of this title (relating to Exemptions) or an affected VOC wastewater stream as defined in §115.140 of this title (relating to Industrial Wastewater Definitions) will remain subject to the requirements of this division, even if the component later falls below those provisions, unless and until emissions are reduced to no more than the controlled emissions level existing prior to the implementation of the project by which throughput or emission rate was reduced to less than the applicable exemption levels in §115.147 of this title; and(A) the project by which throughput or emission rate was reduced is authorized by any permit or permit amendment or standard permit or permit by rule required by Chapter 116 or Chapter 106 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification; and Permits by Rule). If a permit by rule is available for the project, compliance with this division must be maintained for 30 days after the filing of documentation of compliance with that permit by rule; or(B) if authorization by permit, permit amendment, standard permit, or permit by rule is not required for the project, the owner or operator has given the executive director 30 days' notice of the project in writing.</content><note type="source"><p>Source Note: The provisions of this §115.142 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective November 18, 1999, 24 TexReg 10095; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.143"><num value="115.143">§115.143</num><heading>Alternate Control Requirements</heading><content>(a) Alternate means of control. Alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division (relating to Industrial Wastewater) may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.(b) 90% overall control option. As an alternative to the control requirements of §115.142 of this title (relating to Control Requirements), the owner or operator of a wastewater storage, handling, transfer, or treatment facility may elect to ensure that the overall control of volatile organic compounds (VOC) emissions at the account from wastewater from affected source categories is at least 90% less than the 1990 baseline emissions inventory, provided that the following requirements are met.(1) To qualify for the control option available under this subsection after December 31, 1996, the owner or operator of a wastewater component for which a control plan was not previously submitted shall submit a control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall control of VOC emissions at the account from wastewater from affected source categories will be at least 90% less than the 1990 baseline emissions inventory. Any control plan submitted after December 31, 1996, must be approved by the executive director before the owner or operator may use the control option available under this subsection for compliance. At a minimum, the control plan shall include the applicable emission point number (EPN); the facility identification number (FIN); the calendar year 1990 emission rates of wastewater from affected source categories (consistent with the 1990 emissions inventory); a plot plan showing the location, EPN, and FIN associated with a wastewater storage, handling, transfer, or treatment facility; the VOC emission rates for the preceding calendar year; and an explanation of the recordkeeping procedure and calculations which will be used to demonstrate compliance. The VOC emission rates shall be calculated in a manner consistent with the 1990 emissions inventory.(2) The owner or operator shall submit an annual report no later than March 31 of each year to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction, which demonstrates that the overall control of VOC emissions at the account from wastewater from affected source categories during the preceding calendar year is at least 90% less than the 1990 baseline emissions inventory. At a minimum, the report shall include the EPN; FIN; the throughput of wastewater from affected source categories; a plot plan showing the location, EPN, and FIN associated with a wastewater storage, handling, transfer, or treatment facility; and the VOC emission rates for the preceding calendar year. The emission rates for the preceding calendar year shall be calculated in a manner consistent with the 1990 emissions inventory.(3) All representations in control plans and annual reports become enforceable conditions. It shall be unlawful for any person to vary from such representations if the variation will cause a change in the identity of the specific emission sources being controlled or the method of control of emissions unless the owner or operator submits a revised control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction no later than 30 days after the change. All control plans and reports shall include documentation that the overall reduction of VOC emissions at the account from wastewater from affected source categories continues to be at least 90% less than the 1990 baseline emissions inventory. The emission rates shall be calculated in a manner consistent with the 1990 emissions inventory.(c) The owner or operator of an affected source category within a plant may elect to comply with the provisions of 40 Code of Federal Regulations 63, Subpart G (National Emission Standards for Organic Hazardous Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater, January 22, 2001) as an alternative to complying with this division, provided that:(1) the term "VOC" is substituted each place that Subpart G references the term "hazardous air pollutant" or "HAP";(2) in Table 9 of Appendix to Subpart G - Table and Figures, the average fraction removed (FR) value required for VOC not specifically listed in this table is 0.90; and(3) before implementing the option available under this subsection, the owner or operator provides written notice to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction of the intention to use this option.</content><note type="source"><p>Source Note: The provisions of this §115.143 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective January 27, 1995, 20 TexReg 221; amended to be effective November 18, 1999, 24 TexReg 10095; amended to be effective January 17, 2003, 28 TexReg 113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.144"><num value="115.144">§115.144</num><heading>Inspection and Monitoring Requirements</heading><content>The owner or operator of an affected source category within a plant in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas shall comply with the following inspection and monitoring requirements.(1) All seals and covers used to comply with §115.142(1) of this title (relating to Control Requirements) shall be inspected according to the following schedules to ensure compliance with §115.142(1)(G) and (H) of this title:(A) initially and semiannually thereafter to ensure compliance with §115.142(1)(G) of this title; and(B) upon completion of repair to ensure compliance with §115.142(1)(G) and (H) of this title.(2) Floating roofs and internal floating covers used to comply with §115.142(2) of this title shall be subject to the following requirements. All secondary seals shall be inspected according to the following schedules to ensure compliance with §115.142(2)(E) and (F) of this title.(A) If the primary seal is vapor-mounted, the secondary seal gap area shall be physically measured annually to ensure compliance with §115.142(2)(F) of this title.(B) If the tank is equipped with a mechanical shoe or liquid-mounted primary seal, compliance with §115.142(2)(F) of this title may be determined by visual inspection.(C) All secondary seals shall be visually inspected semiannually to ensure compliance with §115.142(2)(E) and (F) of this title.(3) Monitors shall be installed and maintained as required by this section to measure operational parameters of any emission control device or other device installed to comply with §115.142 of this title. Such monitoring and parameters shall be sufficient to demonstrate proper functioning of those devices to design specifications, and include the monitoring and parameters listed in subparagraphs (A) - (H) of this paragraph, as applicable. In lieu of the monitoring and parameters listed in subparagraphs (A) - (H) of this paragraph, other monitoring and parameters may be approved or required by the executive director:(A) for an enclosed non-catalytic combustion device (including, but not limited to, a thermal incinerator, boiler, or process heater), continuously monitor and record the temperature of the gas stream either in the combustion chamber or immediately downstream before any substantial heat exchange;(B) for a catalytic incinerator, continuously monitor and record the temperature of the gas stream immediately before and after the catalyst bed;(C) for a condenser (chiller), continuously monitor and record the temperature of the gas stream at the condenser exit;(D) for a carbon adsorber, continuously monitor and record the VOC concentration of exhaust gas stream to determine if breakthrough has occurred. If the carbon adsorber does not regenerate the carbon bed directly in the control device (e.g., a carbon canister), the exhaust gas stream shall be monitored daily or at intervals no greater than 20% of the design replacement interval, whichever is greater, or as an alternative to conducting monitoring, the carbon may be replaced with fresh carbon at a regular predetermined time interval that is less than the carbon replacement interval that is determined by the maximum design flow rate and the VOC concentration in the gas stream vented to the carbon adsorber;(E) for a flare, meet the requirements specified in 40 Code of Federal Regulations §60.18(b) and Chapter 111 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter);(F) for a steam stripper, continuously monitor and record the steam flow rate, the wastewater feed mass flow rate, the wastewater feed temperature, and condenser vapor outlet temperature;(G) for a vapor combustor, continuously monitor and record the exhaust gas temperature either in the combustion chamber or immediately downstream before any substantial heat exchange. Alternatively, the owner or operator of a vapor combustor may consider the unit to be a flare and meet the requirements of subparagraph (E) of this paragraph; and(H) for vapor control systems other than those specified in subparagraphs (A) - (G) of this paragraph, continuously monitor and record the appropriate operating parameters.(4) In the Beaumont-Port Arthur, Bexar County, and Houston-Galveston-Brazoria areas, units used to comply with §115.142(3) of this title shall:(A) initially demonstrate a 90% reduction in VOCs by using the methods in §115.145 of this title (relating to Approved Test Methods); and(B) measure on a weekly basis the total suspended solids in the aeration basin of the biotreatment unit.(5) All water seal controls shall be inspected weekly to ensure that the water seal controls are effective in preventing ventilation, except that daily inspections are required for those seals that have failed three or more inspections in any 12-month period. Upon request by the executive director, EPA, or any local program with jurisdiction, the owner or operator shall demonstrate (e.g., by visual inspection or smoke test) that the water seal controls are properly designed and restrict ventilation.(6) All process drains not equipped with water seal controls shall be inspected monthly to ensure that all gaskets, caps, and/or plugs are in place and that there are no gaps, cracks, or other holes in the gaskets, caps, and/or plugs. In addition, all caps and plugs shall be inspected monthly to ensure that they are tightly-fitting.</content><note type="source"><p>Source Note: The provisions of this §115.144 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective November 18, 1999, 24 TexReg 10095; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.145"><num value="115.145">§115.145</num><heading>Approved Test Methods</heading><content>Compliance with the emission specifications, vapor control system efficiency, and certain control requirements, inspection requirements, and exemption criteria of §§115.142 - 115.144 and 115.147 of this title (relating to Control Requirements; Alternate Control Requirements; Inspection and Monitoring Requirements; and Exemptions) shall be determined by applying one or more of the following test methods and procedures, as appropriate.(1) Gas flow rate. Test Methods 1-4 (40 Code of Federal Regulations (CFR) Part 60, Appendix A) are used for determining gas flow rates, as necessary.(2) Concentration of Volatile Organic Compounds (VOC).(A) Test Method 18 (40 CFR Part 60, Appendix A) is used for determining gaseous organic compound emissions by gas chromatography.(B) Test Method 25 (40 CFR 60, Appendix A) is used for determining total gaseous nonmethane organic emissions as carbon.(C) Test Methods 25A or 25B (40 CFR 60, Appendix A) are used for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis.(3) Performance requirements for flares and vapor combustors.(A) For flares, the performance test requirements of 40 CFR 60.18(b) shall apply.(B) For vapor combustors, the owner or operator may consider the unit to be a flare and meet the performance test requirements of 40 CFR 60.18(b) rather than the procedures of paragraphs (1) and (2) of this section.(C) Compliance with the requirements of 40 CFR 60.18(b) will be considered to represent 98% control of the VOC in the flare inlet.(4) Vapor pressure. Use standard reference texts or American Society for Testing and Materials (ASTM) Test Methods D323-89, D2879, D4953, D5190, or D5191 for the measurement of vapor pressure, adjusted for actual storage temperature in accordance with American Petroleum Institute Publication 2517, Third Edition, 1989.(5) Leak determination by instrument method. Use Test Method 21 (40 CFR 60, Appendix A) for determining VOC leaks and for monitoring a carbon canister in accordance with §115.144(3)(D) of this title.(6) Determination of VOC concentration of wastewater samples. Use Test Method 5030 (purge and trap) followed by Test Method 8015 with a DB-5 boiling point (or equivalent column), and flame ionization detector, with the detector calibrated with benzene (SW-846 and 40 CFR Part 261); Test Methods 3810, 5030 (followed by 8020), 8240, 8260, and 9060 (SW-846 and 40 CFR Part 261); Test Methods 602 and 624 (40 CFR Part 136); Test Method 5310(B) (Standard Methods 17th Edition); or Test Method 25D (40 CFR Part 60, Appendix A).(7) Determination of total suspended solids. Use Method 160.2 (Methods for Chemical Analysis of Water and Wastes, EPA-600/4-79-020) or Method 2540D (Standard Methods for the Examination of Water and Wastewater, 18th Edition, American Public Health Association).(8) Determination of biotreatment unit efficiency. Use the methods found in 40 CFR 63 Appendix C or 40 CFR 63.145. A stream-specific list of VOCs shall be used and is determined as follows:(A) compounds with concentrations below one part per million by weight (ppmw) or below the lower detection limit may be excluded;(B) for the owner or operator that can identify at least 90% by weight of the VOCs in the wastewater stream, the individual VOCs that are 5.0% by weight or greater are required to be included on the list. If less than half of the total VOCs in the wastewater are represented by the compounds that are 5.0% by weight or greater, the owner or operator shall include those individual VOCs with the greatest mass on the stream-specific list of VOCs until 75 compounds or every compound, whichever is fewer, is included on the list, except as provided by subparagraph (A) of this paragraph. The owner or operator shall document that the site-specific list of VOCs is representative of the process wastewater stream; and(C) for the owner or operator that can identify at least 50% by weight of the VOCs in the wastewater stream, the individual VOCs with the greatest mass on the stream-specific list of VOCs up to 75 compounds or every compound, whichever is fewer, shall be included on the list, except as provided by subparagraph (A) of this paragraph. The owner or operator shall document that the site-specific list of VOCs is representative of the process wastewater stream.(9) Minor modifications. Minor modifications to these test methods may be used, if approved by the executive director.(10) Alternate test methods. Test methods other than those specified in paragraphs (1) - (8) of this section may be used if validated by 40 CFR 63, Appendix A, Test Method 301 (effective December 29, 1992). For the purposes of this paragraph, substitute "executive director" each place that Test Method 301 references "administrator."</content><note type="source"><p>Source Note: The provisions of this §115.145 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective November 18, 1999, 24 TexReg 10095; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.146"><num value="115.146">§115.146</num><heading>Recordkeeping Requirements</heading><content>The owner or operator of an affected source category within a plant in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas shall comply with the following recordkeeping requirements.(1) Complete and up-to-date records shall be maintained as needed to demonstrate compliance with §115.142 and §115.143 of this title (relating to Control Requirements; and Alternate Control Requirements) which are sufficient to demonstrate the characteristics of wastewater streams and the qualification for any exemptions claimed under §115.147 of this title (relating to Exemptions).(2) Records shall be maintained of the results of any inspection or monitoring conducted in accordance with §115.144 of this title (relating to Inspection and Monitoring Requirements). Records shall be sufficient to demonstrate proper functioning of applicable control equipment to design specifications to ensure compliance with §115.142 and §115.143 of this title.(3) Records shall be maintained of the results of any testing conducted in accordance with §115.145 of this title (relating to Approved Test Methods).(4) All records shall be maintained at the plant for at least two years and be made available upon request to representatives of the executive director, EPA, or any local air pollution control agency having jurisdiction in the area.</content><note type="source"><p>Source Note: The provisions of this §115.146 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective November 18, 1999, 24 TexReg 10095; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.147"><num value="115.147">§115.147</num><heading>Exemptions</heading><content>The following exemptions apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas.(1) Any plant with an annual volatile organic compounds (VOC) loading in wastewater, as determined in accordance with §115.148 of this title (relating to Determination of Wastewater Characteristics), less than or equal to ten megagrams (Mg) (11.03 tons) is exempt from the control requirements of §115.142 of this title (relating to Control Requirements).(2) At any plant with an annual VOC loading in wastewater, as determined in accordance with §115.148 of this title greater than ten Mg (11.03 tons), any person who is the owner or operator of the plant may exempt from the control requirements of §115.142 of this title one or more affected VOC wastewater streams for which the sum of the annual VOC loading in wastewater for all of the exempted streams is less than or equal to ten Mg (11.03 tons).(3) Unless specifically required by this division (relating to Industrial Wastewater), any piece of equipment of a wastewater storage, handling, transfer, or treatment facility to which the control requirements of §115.142 of this title apply is exempt from the requirements of any other division of this chapter. This paragraph does not apply to pieces of equipment or components which are subject to the requirements of Subchapter D, Division 3, and/or Subchapter H of this chapter (relating to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas; and Highly-Reactive Volatile Organic Compounds).(4) If compliance with the control requirements of §115.142 of this title would create a safety hazard in a component of a wastewater storage, handling, transfer, or treatment facility, the owner or operator may request the executive director to exempt that component from the control requirements of §115.142 of this title. The executive director shall approve the request if justified by the likelihood and magnitude of the potential injury and if the executive director determines that reducing or eliminating the hazard is technologically or economically unreasonable based on the emissions reductions that would be achieved.(5) Wet weather retention basins are exempt from the requirements of this division.(6) Petroleum refineries in the Beaumont-Port Arthur area are exempt from the requirements of this division.(7) The following exemptions apply to petroleum refineries in the Houston-Galveston-Brazoria area.(A) Petroleum refineries are exempt from the requirement in §115.142 of this title that after December 31, 2002, the control requirements apply from the point of generation of an affected VOC wastewater stream until the affected VOC wastewater stream is either returned to a process unit, or is treated to reduce the VOC content of the wastewater stream by 90% by weight and also reduce the VOC content of the same VOC wastewater stream to less than 1,000 parts per million by weight, provided that petroleum refineries continue to apply the requirement in §115.142 of this title that the control requirements apply from the point of generation of an affected VOC wastewater stream until the affected VOC wastewater stream is either returned to a process unit, or is treated to remove VOC so that the wastewater stream no longer meets the definition of an affected VOC wastewater stream.(B) Junction boxes are exempt from the requirements of §115.142(1)(D)(ii) of this title, provided that after December 31, 2002 they continue to comply with the requirements of §115.142(1)(D)(i) of this title.(C) Properly operated biotreatment units are exempt from the requirements of §§115.142(3), 115.144(4), and 115.145(7) and (8) of this title (relating to Control Requirements; Inspection and Monitoring Requirements; and Approved Test Methods).</content><note type="source"><p>Source Note: The provisions of this §115.147 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective January 27, 1995, 20 TexReg 221; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective November 18, 1999, 24 TexReg 10095; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.148"><num value="115.148">§115.148</num><heading>Determination of Wastewater Characteristics</heading><content>The determination of the characteristics of a wastewater stream for purposes of this division (relating to Industrial Wastewater) shall be made as follows. (1) The characteristics shall be determined at a location between the point of generation and before the wastewater stream is exposed to the atmosphere, treated for volatile organic compounds (VOC) removal, or mixed with another wastewater stream. For wastewater streams which, prior to November 15, 1993, were either actually being mixed or construction had commenced which would result in the wastewater streams being mixed, this mixing shall not establish a limit on where the characteristics may be determined. (2) The flow rate of a wastewater stream shall be determined on the basis of an annual average by one of the following methods: (A) the highest annual quantity of wastewater managed, based on historical records for the most recent five years of operation, or for the entire time the wastewater stream has existed if less than five years but at least one year; (B) the maximum design capacity of the wastewater component; (C) the maximum design capacity to generate wastewater of the process unit generating the wastewater stream; (D) measurements that are representative of the actual, normal wastewater generation rates. (3) The VOC concentration of a wastewater stream shall be determined on the basis of a flow-weighted annual average by one of the following methods, or by a combination of the methods. If the executive director determines that the VOC concentration cannot be adequately determined by knowledge of the wastewater, or by bench-scale or pilot-scale test data, the VOC concentration shall be determined in accordance with subparagraph (C) of this paragraph, or by a combination of the methods in subparagraphs (A), (B), and (C) of this paragraph. VOC with a Henry's Law Constant less than 7.5x10-5 atm-m3/mole at 25 degrees Celsius shall not be included in the determination of VOC concentration. (A) Knowledge of the wastewater. Sufficient information to document the VOC concentration. Examples of information include material balances, records of chemical purchases, or previous test results. (B) Bench-scale or pilot-scale test data. Sufficient information to demonstrate that the bench-scale or pilot-scale test concentration data are representative of the actual VOC concentration. (C) Measurements. Collect a minimum of three representative samples from the wastewater stream and determine the VOC concentration for each sample in accordance with §115.145 of this title (relating to Approved Test Methods). The VOC concentration of the wastewater stream shall be the flow-weighted average of the individual samples. (4) The annual VOC loading in wastewater for a wastewater stream shall be the annual average flow rate determined in paragraph (2) of this section multiplied by the annual average VOC concentration determined in paragraph (3) of this section. (5) The annual VOC loading in wastewater for a plant shall be the sum of the annual VOC loading in wastewater for each affected VOC wastewater stream.</content><note type="source"><p>Source Note: The provisions of this §115.148 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective November 18, 1999, 24 TexReg 10095.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.149"><num value="115.149">§115.149</num><heading>Counties and Compliance Schedules</heading><content>(a) The owner or operator of each affected source category within a plant in Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery, Orange, Tarrant, and Waller Counties shall continue to comply with this division (relating to Industrial Wastewater) as required by §115.930 of this title (relating to Compliance Dates).(b) The owner or operator of each affected source category within a plant in Ellis, Johnson, Kaufman, Parker, and Rockwall Counties shall comply with this division as soon as practicable, but no later than March 1, 2009.(c) The owner or operator of each affected source category in the Bexar County area subject to the requirements of this division shall comply with the requirements of this division by no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §115.149 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective January 27, 1995, 20 TexReg 221; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective November 18, 1999, 24 TexReg 10095; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective December 7, 2006, 31 TexReg 9840; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.152"><num value="115.152">§115.152</num><heading>Control Requirements</heading><content>(a) For the Houston/Galveston, El Paso, and Dallas/Fort Worth ozone nonattainment areas as defined in §115.10 of this title (relating to Definitions), no person shall operate or allow the operation of a municipal solid waste landfill (MSWLF) unless each owner or operator of an MSWLF calculates the nonmethane organic compounds (NMOC) emission rate for the landfill using the procedures provided in §60.753 of the proposed federal rules published in the May 30, 1991, issue of the Federal Register (58 FR 104). The volatile organic compound emission rate shall be calculated and recalculated annually using the following default values: Generation Rate Constant, K = 0.05 1/year; Generation Potential, L o = 170 m3 /Mg; Non-methane Gas Concentration, CNMOC = 4,000 ppmv. If at any time the calculated NMOC emission rate exceeds 150 Megagrams (Mg) per year, the owner or operator shall: (1) install a gas collection and control system (GCCS) subject to the requirements of §60.752(b)(2)(ii) of the proposed federal rules published in the May 30, 1991, issue of the Federal Register (58 FR 104). Alternative design methodologies to the GCCS are subject to the approval of the executive director; (2) control NMOC gas emissions in one of the following ways: (A) the total collected gas is routed to an open flare designed and operated in accordance with 40 CFR §60.18; (B) the total collected gas is routed to a control device which reduces the total collected gas emissions by 98% or to less than 20 parts per million by volume; or (C) the total collected gas is routed to a gas treatment system which processes the collected gas for subsequent use or sale. The sum of all emissions from any atmospheric vent from the gas treatment system shall be subject to the requirements of subparagraph (A) of this paragraph;(3) operate the GCCS in compliance with §60.754 of the proposed federal rules published in the May 30, 1991, issue of the Federal Register (58 FR 104). (b) The GCCS may be capped or removed if all of the following conditions are met: (1) the landfill shall no longer accept waste and shall be permanently closed; (2) the GCCS shall have been in continuous operation for at least 15 years; and (3) the calculated NMOC emission rate shall be less than 150 Mg per year on three successive test dates. The test dates shall be no closer than three months apart, and no longer than six months apart.</content><note type="source"><p>Source Note: The provisions of this §115.152 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.153"><num value="115.153">§115.153</num><heading>Alternate Control Requirements</heading><content>For all persons in the Houston/Galveston, El Paso, and Dallas/Fort Worth ozone nonattainment areas, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division (relating to Municipal Solid Waste Landfills) may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.</content><note type="source"><p>Source Note: The provisions of this §115.153 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.155"><num value="115.155">§115.155</num><heading>Approved Test Methods</heading><content>Compliance with §115.152 of this title (relating to Control Requirements) shall be determined by applying the following test methods, as appropriate: (1) Test Methods 1-4 (40 CFR 60, Appendix A) for determining flow rate, oxygen concentration, or moisture, as necessary; (2) Test Method 2E as proposed under 40 CFR 60, Appendix A, published in the May 30, 1991, issue of the Federal Register (58 FR 104) for designing the area of influence of the gas collection and control system (GCCS); (3) Test Method 3C as proposed under 40 CFR 60, Appendix A, published in the May 30, 1991, issue of the Federal Register (58 FR 104) for measuring the concentration of nitrogen in the landfill gas; (4) Test Method 18 (40 CFR 60, Appendix A) for determining gaseous organic compound emissions by gas chromatography; (5) Test Method 21 (40 CFR 60, Appendix A) for determining volatile organic compound leaks; (6) Test Method 25 (40 CFR 60, Appendix A) for determining total gaseous non-methane (CH4 ) organic emissions as carbon;(7) Test Methods 25A or 25B (40 CFR 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis; (8) Test Method 25C as proposed under 40 CFR 60, Appendix A, published in the May 30, 1991, issue of the Federal Register (58 FR 104) for determining non-CH4 organic compounds in landfill gases;(9) determination of true vapor pressure using American Society for Testing and Materials Test Methods D323-89, D2879, D4953, D5190, or D5191 for the measurement of Reid vapor pressure, adjusted for actual storage temperature in accordance with American Petroleum Institute Publication 2517, Third Edition, 1989; (10) one of the above test methods with minor modifications as approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.155 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.156"><num value="115.156">§115.156</num><heading>Monitoring and Recordkeeping Requirements</heading><content>For the Houston/Galveston, El Paso, and Dallas/Fort Worth ozone nonattainment areas, the following recordkeeping requirements shall apply.(1) For municipal solid waste landfills (MSWLF), which are not subject to the requirements of §115.152 of this title (relating to Control Requirements), the owner or operator of each landfill shall maintain complete and up-to-date records sufficient to demonstrate continuous compliance with the applicable exemption criteria including, but not limited to, an annual calculation of the non-methane organic compounds (NMOC) emissions rate and any other necessary operational information.(2) For MSWLF, which are subject to the requirements of §115.152 of this title, the owner or operator of each landfill shall install and maintain monitors to continuously measure and record operational parameters of any emission control device installed to meet applicable control requirements. Such records must be sufficient to demonstrate proper functioning of those devices to design specifications, including, but not limited to:(A) the exhaust gas temperature immediately downstream for any direct-flame incinerator or enclosed flare;(B) the gas temperature immediately upstream and downstream for any catalytic incinerator or chiller;(C) the NMOC concentration for any carbon adsorption system exhaust gas to determine if breakthrough has occurred;(D) the gas flowrate to the combustion device;(E) monthly readings of the gauge pressure at each well in the gas collection header;(F) the percent methane concentration at each well in the gas collection header; and(G) the dates and reasons for any maintenance and repair of the required gas collection and control system and control devices and the estimated quantity and duration of NMOC emissions during such activities.(3) Each owner or operator of an MSWLF shall annually submit an emissions inventory report as required by §101.10 of this title (relating to Emissions Inventory Requirements). This report shall include:(A) calculation of the NMOC emission rate;(B) a map or plot of the landfill, providing the size and location, and identifying all areas where waste may be landfilled according to the provisions of the permit;(C) the maximum design capacity;(D) notification of any increase in the size of the landfill. The increase may result from:(i) an increase in the permitted area or depth of the landfill;(ii) a change in the operating procedures; or(iii) any other means which will increase the maximum design capacity of the landfill; and(E) notification of closure.(i) For purposes of this subchapter, closure means that waste is no longer being placed in the landfill, and no additional wastes will be placed in the landfill without filing a notification of modification, as prescribed by the commission.(ii) Landfills that are closed permanently between reporting periods shall report as directed by §101.10 of this title and continue reporting until the calculated NMOC emission rate falls below 150 Mg per year on three successive test dates. The test dates shall be no closer than three months apart, and no longer than six months apart.</content><note type="source"><p>Source Note: The provisions of this §115.156 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.157"><num value="115.157">§115.157</num><heading>Exemptions</heading><content>For the Houston/Galveston, El Paso, and Dallas/Fort Worth ozone nonattainment areas, the following facilities are exempt:(1) any municipal solid waste landfill (MSWLF) with a capacity of less than 100,000 Mg (111,000 tons);(2) any MSWLF which closed or stopped receiving waste prior to November 8, 1987, and does not have the capacity to receive more waste.</content><note type="source"><p>Source Note: The provisions of this §115.157 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.159"><num value="115.159">§115.159</num><heading>Counties and Compliance Schedule</heading><content>(a) All affected municipal solid waste landfills (MSWLFs) in Collin, Dallas, Denton, and Tarrant Counties shall demonstrate compliance with this division (relating to Municipal Solid Waste Landfills) as soon as practicable, but no later than May 31, 1996. (b) All affected MSWLFs in El Paso County shall demonstrate compliance with this division as soon as practicable, but no later than November 15, 1996. (c) All affected MSWLFs in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties shall demonstrate compliance with this division as soon as practicable, but no later than one year, after the commission publishes notification in the Texas Register of its determination that this contingency rule is necessary as a result of failure to attain the National Ambient Air Quality Standard (NAAQS) for ozone by the attainment deadline or failure to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act (FCAA), §172(c)(9).</content><note type="source"><p>Source Note: The provisions of this §115.159 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective January 27, 1995, 20 TexReg 221; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.160"><num value="115.160">§115.160</num><heading>Batch Process Definitions</heading><content>The following words and terms, when used in this division (relating to Batch Processes), shall have the following meanings, unless the context clearly indicates otherwise. Additional definitions for terms used in this division are found in §§3.2, 101.1, and 115.10 of this title (relating to Definitions). (1) Aggregated--The summation of all process vents containing volatile organic compounds (VOC) within a process. (2) Annual mass emissions total--The sum of all VOC emissions (pounds per year), evaluated before control but after the last recovery device, from a process vent. Annual mass emissions shall be calculated from an individual process vent or groups of process vents by using emission estimation equations contained in Chapter 3 of EPA's Control of Volatile Organic Compound Emissions from Batch Processes-Alternative Control Techniques Information Document (EPA-453/R-94-020, February 1994) and then multiplying by the historical duration and frequency of the emission or groups of emissions over the course of a year. For process vents that are included in a new source review air permit, standard permit, or permit by rule registered by Form PI-8, the annual mass emissions total shall be based on the maximum allowable emission rate (MAER) levels in the permit or Form PI-8 (adjusted to represent the level before control, but after the last recovery device), whether they correspond to the maximum design production potential or to the actual annual production estimate. (3) Average flow rate--The flow rate in standard cubic feet per minute (scfm) averaged over the amount of time that VOCs are emitted during an emission event. For the evaluation of average flow rate from an aggregate of sources, the average flow rate is the weighted average of the average flow rates of the emission events and their annual venting time, or: Attached Graphic(4) Batch--A noncontinuous process involving the bulk movement of material through sequential manufacturing steps. Mass, temperature, concentration, and other properties of a system vary with time. Batch processes are not characterized by steady-state conditions. Reactants are not added and products are not removed simultaneously. (5) Batch cycle--A manufacturing event of an intermediate or product from start to finish in a batch process. (6) Batch process (for the purpose of determining reasonably available control technology (RACT) applicability)--The batch equipment assembled and connected by pipes, or otherwise operated in a sequence of steps, to manufacture a product in a batch fashion. (7) Batch process train--An equipment train that is used to produce a product or intermediates in batch fashion. A typical equipment train consists of equipment used for the synthesis, mixing, and purification of a material. (8) Emissions before control--The emissions total before the application of a control device but after the last recovery device, or the emissions total if no control device is used. The emissions total may not be reduced to account for discharge of VOC into wastewater if the wastewater is further handled or processed with the potential for VOC emissions to the atmosphere. (9) Primary fuel--The fuel that provides the principal heat input to a device. To be considered a primary fuel, the fuel must be able to sustain operation without the addition of other fuels. (10) Process vent--A vent gas stream that is discharged from a batch process. Process vents include gas streams that are discharged directly to the atmosphere or are discharged to the atmosphere after diversion through a recovery device. Process vents exclude relief valve discharges, leaks from equipment, vents from storage tanks, vents from transfer/loading operations, and vents from wastewater. Process gaseous streams that are used as primary fuels are also excluded. The lines that transfer such fuels to a plant fuel gas system are not considered to be vents. (11) RACT--Reasonably available control technology. (12) Recovery device--An individual unit of equipment capable of and used for recovering chemicals for use, reuse, or sale. Recovery devices include, but are not limited to, absorbers, carbon adsorbers, and condensers. (13) Unit operations--Those discrete processing steps that occur within distinct equipment that are used to prepare reactants, facilitate reactions, separate and purify products, and recycle materials. (14) Volatility--As follows. (A) Low volatility VOCs are those which have a vapor pressure less than or equal to 75 millimeters of mercury (mm Hg) at 20 degrees Celsius. (B) Moderate volatility VOCs are those which have a vapor pressure greater than 75 and less than or equal to 150 mm Hg at 20 degrees Celsius. (C) High volatility VOCs are those which have a vapor pressure greater than 150 mm Hg at 20 degrees Celsius. (D) To evaluate VOC volatility for single unit operations that service numerous VOCs or for processes handling multiple VOCs, the weighted average volatility can be calculated from the total amount of each VOC emitted in a year and the individual component vapor pressure, as follows. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §115.160 adopted to be effective November 18, 1999, 24 TexReg 10095; amended to be effective January 17, 2003, 28 TexReg 113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.161"><num value="115.161">§115.161</num><heading>Applicability</heading><content>(a) The provisions of §§115.162 - 115.167 of this title (relating to Control Requirements; Alternate Control Requirements; Determination of Emissions and Flow Rates; Approved Test Methods and Testing Requirements; Monitoring and Recordkeeping Requirements; and Exemptions) apply to vent gas streams at batch process operations in the Beaumont-Port Arthur, Bexar County, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), under the following Standard Industrial Classification (SIC) codes:(1) 2821 (plastic resins and materials);(2) 2833 (medicinals and botanicals);(3) 2834 (pharmaceutical preparations);(4) 2861 (gum and wood chemicals);(5) 2865 (cyclic crudes and intermediates);(6) 2869 (industrial organic chemicals, not elsewhere classified); and(7) 2879 (agricultural chemicals, not elsewhere classified).(b) Any batch process operation that is exempt under §115.167(1) or (2)(A) of this title is subject to the requirements of Division 2 of this subchapter (relating to Vent Gas Control).(c) Any batch process in the Houston-Galveston-Brazoria area in which a highly-reactive volatile organic compound, as defined in §115.10 of this title, is a raw material, intermediate, final product, or in a waste stream is subject to the requirements of Subchapter H of this chapter (relating to Highly-Reactive Volatile Organic Compounds) in addition to the applicable requirements of either this division (relating to Batch Processes) or Division 2 of this subchapter, whichever of these two divisions applies.</content><note type="source"><p>Source Note: The provisions of this §115.161 adopted to be effective November 18, 1999, 24 TexReg 10095; amended to be effective January 18, 2001, 26 TexReg 493; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.162"><num value="115.162">§115.162</num><heading>Control Requirements</heading><content>The owner or operator of each batch process operation in the Beaumont-Port Arthur, Bexar County, and Houston-Galveston-Brazoria areas, shall comply with the following control requirements.(1) Reasonable available control technology (RACT) equations. The volatile organic compounds (VOC) mass emission rate from individual process vents or for process vent streams in aggregate within a batch process shall be reduced by 90% if the actual average flow rate value (in standard cubic feet per minute (scfm)) is below the flow rate (FR) value calculated using the applicable RACT equation for the volatility range (low, moderate, or high) of the material being emitted when the annual mass emission total (AE, in pounds per year) are input. The RACT equations, specific to volatility, are as follows:(A) Low volatility: FR = 0.07(AE) - 1821;(B) Moderate volatility: FR = 0.031(AE) - 494;(C) High volatility: FR = 0.013(AE) - 301.(2) Successive ranking scheme. For aggregate streams within a process, the control requirements must be evaluated with the following successive ranking scheme until control of a segment of unit operations is required or until all unit operations have been eliminated from the process pool.(A) If, for the process vent streams in aggregate, the value of FR calculated using the applicable RACT equation in paragraph (1) of this section is negative (i.e., less than zero), then the process is exempt from the 90% control requirements, and the successive ranking scheme of subparagraph (F) of this paragraph does not apply. This would occur if the mass annual emission rates are below the lower limits specified in §115.167(2)(A) of this title (relating to Exemptions).(B) If, for the process vent streams in aggregate, the actual average flow rate value (in scfm) is below the value of FR calculated using the applicable RACT equation in paragraph (1) of this section, then the overall emissions from the batch process must be reduced by 90%, and the successive ranking scheme of subparagraph (F) of this paragraph does not apply. The owner or operator has the option of selecting which unit operations are to be controlled and to what levels, provided that the overall control meets the specified level of 90%. Single units that qualify for exemption under §115.167(2)(B) of this title do not have to be controlled even if all units should qualify for this exemption.(C) If, for the process vent streams in aggregate, the actual average flow rate value (in scfm) is greater than the value of FR calculated using the applicable RACT equation in paragraph (1) of this section (and the calculated value of FR is a positive number), then the control requirements must be evaluated with the successive ranking scheme of subparagraph (F) of this paragraph until control of a segment of unit operations is required or until all unit operations have been eliminated from the process pool. Single units that qualify for exemption under §115.167(2)(B) of this title do not have to be included in the rankings and do not have to be controlled.(D) Sources that are required to be controlled to the level specified by RACT (i.e., 90%) will have an average flow rate that is below the flow rate specified by the applicable RACT equation in paragraph (1) of this section (when the source's annual emission total is input). The applicability criterion is implemented on a two-tier basis. First, single pieces of batch equipment corresponding to distinct unit operations shall be evaluated over the course of an entire year, regardless of what materials are handled or what products are manufactured in them. Second, equipment shall be evaluated as an aggregate if it can be linked together based on the definition of a process.(E) To determine applicability of a RACT option in the aggregation scenario, all the VOC emissions from a single process shall be summed to obtain the annual mass emission total, and the weighted average flow rate from each process vent in the aggregation shall be used as the average flow rate.(F) All unit operations in the batch process, as defined for the purpose of determining RACT applicability, shall be ranked in ascending order according to their ratio of annual emissions (pounds per year) divided by average flow rate (in scfm). Sources with the smallest ratios shall be listed first. This list of sources constitutes the "pool" of sources within a batch process. The annual emission total and average flow rate of the pool of sources shall then be compared against the RACT equations in paragraph (1) of this section to determine whether control of the pool is required.(i) If control is not required after the initial ranking, unit operations having the lowest annual emissions/average flow rate ratio shall then be eliminated one by one, and the characteristics of annual emission and average flow rate for the remaining pool of equipment must be evaluated with each successive elimination of a source from the pool.(ii) Control of the unit operations remaining in the pool to the specified level (i.e., 90%) shall be required once the aggregated characteristics of annual emissions and average flow rate have met the specified cutoffs. The owner or operator has the option of selecting which unit operations are to be controlled and to what levels, provided that the overall control meets the specified level of 90%.(3) Once-in, always-in. Any batch process operation that becomes subject to the provisions of this division by exceeding provisions of §115.167 of this title will remain subject to the provision of this division, even if throughput or emissions later fall below exemption limits, unless and until emissions are reduced to no more than the controlled emissions level existing before implementation of the project by which throughput or emission rate was reduced to less than the applicable exemption limits in §115.167 of this title; and(A) the project by which throughput or emission rate was reduced is authorized by any permit or permit amendment or standard permit or permit by rule required by Chapter 116 or Chapter 106 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification; and Permits by Rule). If a permit by rule is available for the project, compliance with this division must be maintained for 30 days after the filing of documentation of compliance with that permit by rule; or(B) if authorization by permit, permit amendment, standard permit, or permit by rule is not required for the project, the owner/operator has given the executive director 30 days' notice of the project in writing.</content><note type="source"><p>Source Note: The provisions of this §115.162 adopted to be effective November 18, 1999, 24 TexReg 10095; amended to be effective January 18, 2001, 26 TexReg 493; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.163"><num value="115.163">§115.163</num><heading>Alternate Control Requirements</heading><content>Alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division (relating to Batch Processes) may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.</content><note type="source"><p>Source Note: The provisions of this §115.163 adopted to be effective November 18, 1999, 24 TexReg 10095.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.164"><num value="115.164">§115.164</num><heading>Determination of Emissions and Flow Rates</heading><content>The owner or operator of each batch process operation in the Beaumont-Port Arthur, Bexar County, and Houston-Galveston-Brazoria areas shall determine the mass emissions and flow rates as follows.(1) Determination of Uncontrolled Annual Emission Total. The owner or operator shall determine the annual mass emissions total by using engineering estimates of the uncontrolled emissions from a process vent or group of process vents within a batch process train and multiplying by the potential or permitted number of batch cycles per year. Engineering estimates must follow the guidance contained in EPA's Control of Volatile Organic Compound Emissions from Batch Processes - Alternative Control Techniques Information Document (EPA-453/R-93-020, February 1994). Alternatively, if an emissions measurement is used to measure vent emissions, the measurement must conform with the requirements of measuring incoming mass flow rate of volatile organic compounds as specified in §115.165 of this title (relating to Approved Test Methods and Testing Requirements). (2) Determination of Average Flow Rate. To obtain a value for average flow rate, the owner or operator may choose to measure the flow rates or to estimate the flow rates using the estimation methods contained in EPA's Control of Volatile Organic Compound Emissions from Batch Processes - Alternative Control Techniques Information Document (EPA-453/R-93-020, February 1994). For existing manifolds, the average flow rate may be the flow rate that was assumed in the design.</content><note type="source"><p>Source Note: The provisions of this §115.164 adopted to be effective November 18, 1999, 24 TexReg 10095; amended to be effective January 18, 2001, 26 TexReg 493; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.165"><num value="115.165">§115.165</num><heading>Approved Test Methods and Testing Requirements</heading><content>The owner or operator of each batch process operation in the Beaumont-Port Arthur, Bexar County, and Houston-Galveston-Brazoria areas, shall comply with the following.(1) Performance testing conditions. For the purpose of determining compliance with the control requirements of this division (relating to Batch Processes), the process unit shall be run at a scenario that represents maximum batch rates (e.g., three batches per day, 1,000 lbs per batch, etc.) during any performance test.(2) Test methods. The owner or operator of each batch process operation shall use the following methods to determine compliance with the percent reduction efficiency requirement of §115.162 of this title (relating to Control Requirements).(A) Flow rate.(i) Test Methods 1 or 1A (40 Code of Federal Regulations (CFR) 60, Appendix A) as appropriate, shall be used for selection of the sampling sites if the flow rate measuring device is a rotameter. No traverse is necessary when the flow measuring device is an ultrasonic probe. The control device inlet sampling sites for determination of vent stream volatile organic compounds (VOC) composition reduction efficiency shall be before the control device and after the control device.(ii) Test Methods 2, 2A, 2C, or 2D (40 CFR 60, Appendix A) as appropriate, shall be used for determination of gas stream volumetric flow rate. Flow rate measurements shall be made continuously.(B) Concentration of VOC. Test Method 18 (40 CFR 60, Appendix A) (gas chromatography) or Test Method 25A (40 CFR 60, Appendix A) (flame ionization) shall be used to determine the concentration of VOC in the control device inlet and outlet.(i) The sampling time for each run shall be the entire length of the batch cycle, during which readings shall be taken:(I) continuously if Method 25A is used; or(II) as often as is possible using Method 18, with a maximum of one-minute intervals between measurements throughout the batch cycle.(ii) The emission rate of the process vent or inlet to the control device shall be determined by combining continuous concentration and flow rate measurements at simultaneous points throughout the batch cycle.(iii) The mass flow rate of the control device outlet shall be determined by combining continuous concentration and flow rate measurements at simultaneous points throughout the batch cycle.(iv) The efficiency of the control device shall be determined by integrating the mass flow rates obtained in clauses (ii) and (iii) of this subparagraph over the time of the batch cycle, and dividing the difference in inlet and outlet mass flow totals by the inlet mass flow total.(C) Performance requirements for flares and vapor combustors.(i) For flares, the performance test requirements of 40 CFR 60.18(b) shall apply.(ii) For vapor combustors, the owner or operator may consider the unit to be a flare and meet the performance test requirements of 40 CFR 60.18(b).(iii) Compliance with the requirements of 40 CFR 60.18(b) will be considered to represent 98% control of the VOC in the flare inlet.(D) Minor modifications. Minor modifications to these test methods may be used, if approved by the executive director.(E) Alternate test methods. Test methods other than those specified in subparagraphs (B) and (C) of this paragraph may be used if validated by 40 CFR 63, Appendix A, Test Method 301 (effective December 29, 1992). For the purposes of this paragraph, substitute "executive director" each place that Test Method 301 references "administrator."</content><note type="source"><p>Source Note: The provisions of this §115.165 adopted to be effective November 18, 1999, 24 TexReg 10095; amended to be effective January 18, 2001, 26 TexReg 493; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.166"><num value="115.166">§115.166</num><heading>Monitoring and Recordkeeping Requirements</heading><content>The owner or operator of each batch process operation in the Beaumont-Port Arthur, Bexar County, and Houston-Galveston-Brazoria areas shall maintain the following information for at least five years at the plant, as defined by its air quality account number, except that the five-year record retention requirement does not apply to records generated before December 31, 2000. The owner or operator shall make the information available upon request to representatives of the executive director, EPA, or any local air pollution control agency having jurisdiction in the area:(1) Vapor control systems. For vapor control systems used to control emissions from batch process operations, records of appropriate parameters to demonstrate compliance, including:(A) continuous monitoring and recording of:(i) for a direct-flame incinerator, the exhaust gas temperature in the firebox or in the ductwork immediately downstream of the firebox before any substantial heat exchange. The temperature monitoring device shall have an accuracy of ±0.5 degrees Celsius, or alternatively, ±1.0%;(ii) for a catalytic incinerator, the exhaust gas temperature immediately before and after the catalyst bed. The temperature monitoring device shall have an accuracy of ±0.5 degrees Celsius, or alternatively, ±1.0%;(iii) for an absorber, either:(I) the scrubbing liquid temperature. The temperature monitoring device shall have an accuracy of ±1.0% of the temperature being monitored in degrees Celsius, or alternatively, ±0.02 specific gravity unit; or(II) the concentration level of volatile organic compounds (VOC) exiting the recovery device based on a detection principle such as infrared, photoionization, or thermal conductivity;(iv) for a condenser or refrigeration system, either:(I) the condenser exit temperature. The temperature monitoring device shall have an accuracy of ±1.0% of the temperature being monitored in degrees Celsius, or alternatively, ±0.5 degrees Celsius; or(II) the concentration level of VOC exiting the recovery device based on a detection principle such as infrared, photoionization, or thermal conductivity;(v) for a carbon adsorption system, as defined in §101.1 of this title (relating to Definitions), either:(I) steam flow (using an integrating steam flow monitoring device) and the carbon bed temperature. The steam flow monitor shall have an accuracy of ±10%. The temperature monitor shall have an accuracy of ±1.0% of the temperature being monitored in degrees Celsius, or ±0.5 degrees Celsius, whichever is greater; or(II) the concentration level of VOC exiting the recovery device based on a detection principle such as infrared, photoionization, or thermal conductivity;(vi) for a pressure swing adsorption unit that is the final recovery device, the temperature of the bed near the inlet and near the outlet. The temperature monitoring device shall have an accuracy of ±1.0% of the temperature being monitored in degrees Celsius, or ±0.5 degrees Celsius; and(vii) for a vapor combustor, the exhaust gas temperature in the firebox or in the ductwork immediately downstream of the firebox before any substantial heat exchange. The temperature monitoring device shall have an accuracy of ±0.5 degrees Celsius, or alternatively, ±1.0%. Alternatively, the owner or operator of a vapor combustor may consider the unit to be a flare and meet the requirements of subparagraph (B) of this paragraph;(B) for flares, the requirements specified in 40 Code of Federal Regulations §60.18(b) and Chapter 111 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter); and(C) for vapor control systems other than those specified in subparagraphs (A) and (B) of this paragraph, records of appropriate operating parameters.(2) Process vents. A record of the following emission stream parameters for each process vent contained in the batch process:(A) the annual mass emission total and documentation verifying these values. If emission estimate equations are used, the documentation shall be the calculations coupled with the expected or permitted (if available) number of emission events per year; and(B) the average flow rate in standard cubic feet per minute and documentation verifying these values.(3) Performance test monitoring parameters. Records of the following parameters required to be measured during a performance test required under §115.165 of this title (relating to Approved Test Methods and Testing Requirements) and required to be monitored under paragraph (1) of this section:(A) where an owner or operator seeks to demonstrate compliance with §115.162 of this title (relating to Control Requirements) through use of either a direct-flame or catalytic incinerator, the average firebox temperature of the incinerator (or the average temperature upstream and downstream of the catalyst bed for a catalytic incinerator), measured continuously and averaged over the same time period as the performance test;(B) where an owner or operator seeks to demonstrate compliance with §115.162 of this title through use of a smokeless flare, the flare design (i.e., steam-assisted, air-assisted, or nonassisted), all visible emissions readings, heat content determinations, flow rate measurements, and exit velocity determinations made during the performance test; continuous flare pilot flame monitoring; and all periods of operations during which the pilot flame is absent; and(C) where an owner or operator seeks to demonstrate compliance with §115.162 of this title:(i) with an absorber as the final control device, the exit specific gravity (or alternative parameter which is a measure of the degree of absorbing liquid saturation, if approved by the executive director) and average exit temperature of the absorbing liquid measured continuously and averaged over the same time period as the performance test (both measured while the vent stream is routed normally);(ii) with a condenser as the control device, the average exit (product side) temperature measured continuously and averaged over the same time period as the performance test while the vent stream is routed normally;(iii) with a carbon adsorption system as the control device, the total steam mass flow measured continuously and averaged over the same time period as the performance test (full carbon bed cycle), temperature of the carbon bed after regeneration (and within 15 minutes of completion of any cooling cycle(s)), and duration of the carbon bed steaming cycle (all measured while the vent stream is routed normally);(iv) the concentration level or reading indicated by an organic monitoring device at the outlet of the absorber, condenser, or carbon adsorption system, measured continuously and averaged over the same time period as the performance test while the vent stream is routed normally; and(v) with a pressure swing adsorption unit as the final recovery device, the temperature of the bed near the inlet and near the outlet. The temperature monitoring device shall have an accuracy of ±1.0% of the temperature being monitored in degrees Celsius, or ±0.5 degrees Celsius.</content><note type="source"><p>Source Note: The provisions of this §115.166 adopted to be effective November 18, 1999, 24 TexReg 10095; amended to be effective January 18, 2001, 26 TexReg 493; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.167"><num value="115.167">§115.167</num><heading>Exemptions</heading><content>The following exemptions apply.(1) Batch process operations at an account that has total volatile organic compound (VOC) emissions (determined before control but after the last recovery device) of less than the following rates from all stationary emission sources included in the account are exempt from the requirements of this division (relating to Batch Processes), except for §115.161(b) and (c) of this title (relating to Applicability):(A) 50 tons per year (tpy) in the Beaumont-Port Arthur area; (B) 25 tpy in the Houston-Galveston-Brazoria area; and (C) 100 tpy in the Bexar County area.(2) The following are exempt from the requirements of this division, except for §§115.161(b) and (c), 115.164, and 115.166(2) and (3) of this title (relating to Applicability; Determination of Emissions and Flow Rates; and Monitoring and Recordkeeping Requirements). (A) Combined vents from a batch process train that have the following annual mass emissions total.Attached Graphic(B) Single unit operations that have an annual mass emissions total of 500 pounds per year or less.</content><note type="source"><p>Source Note: The provisions of this §115.167 adopted to be effective November 18, 1999, 24 TexReg 10095; amended to be effective January 18, 2001, 26 TexReg 493; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective October 20, 2005, 30 TexReg 6738; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.169"><num value="115.169">§115.169</num><heading>Counties and Compliance Schedules</heading><content>(a) The owner or operator of each batch process operation in Hardin, Jefferson, and Orange Counties at an account that has total volatile organic compound (VOC) emissions (determined before control but after the last recovery device) of 100 tons per year or more shall continue to comply with this division (relating to Batch Processes) as required by §115.930 of this title (relating to Compliance Dates).(b) The owner or operator of each batch process operation in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties shall demonstrate compliance with this division as soon as practicable, but no later than December 31, 2002. All batch process operations subject to this division in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties must continue to comply with the requirements of Division 2 of this subchapter (relating to Vent Gas Control) until these batch process operations are in compliance with the requirements of this division.(c) The owner or operator of each batch process operation in Hardin, Jefferson, and Orange Counties at an account that has total VOC emissions (determined before control but after the last recovery device) of 50 tons per year or more but less than 100 tons per year shall demonstrate compliance with this division as soon as practicable, but no later than December 31, 2006. All batch process operations subject to this division in Hardin, Jefferson, and Orange Counties must continue to comply with the requirements of Division 2 of this subchapter until these batch process operations are in compliance with the requirements of this division.(d) The owner or operator of each batch process operation in the Bexar County area at an account that has total VOC emissions (determined before control but after the last recovery device) of 100 tons per year or more shall demonstrate compliance with the requirements of this division no later January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §115.169 adopted to be effective November 18, 1999, 24 TexReg 10095; amended to be effective January 18, 2001, 26 TexReg 493; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective October 20, 2005, 30 TexReg 6738; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.170"><num value="115.170">§115.170</num><heading>Applicability</heading><content>The requirements in this division apply to the following equipment in the Bexar County, Dallas-Fort Worth, and Houston-Galveston-Brazoria areas as defined in §115.10 of this title (relating to Definitions):(1) any centrifugal compressor with wet seals and any reciprocating compressor located between the wellhead, but not including the well site, and point of custody transfer to a natural gas transmission or storage operation;(2) any pneumatic controller located from the wellhead to a natural gas processing plant, including the natural gas processing plant, or point of custody transfer to a crude oil pipeline;(3) any pneumatic pump located at a well site or a natural gas processing plant;(4) any storage tank located from the well site to the point of custody transfer to an oil pipeline or to the point of natural gas distribution; and(5) any fugitive emission component in volatile organic compounds service located at a crude oil or natural gas production well site, natural gas processing plant, or gathering and boosting station.</content><note type="source"><p>Source Note: The provisions of this §115.170 adopted to be effective July 21, 2021, 46 TexReg 4313; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.171"><num value="115.171">§115.171</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382) or in §§3.2, 101.1, or 115.10 of this title (relating to Definitions, respectively), the terms in this division have the meanings commonly used in the field of air pollution control. The following meanings apply in this division unless the context clearly indicates otherwise.(1) Centrifugal compressor--A piece of equipment for raising the pressure of natural gas by drawing in low-pressure natural gas and discharging significantly higher-pressure natural gas by means of mechanical rotating vanes or impellers. Screw, sliding vane, and liquid ring compressors are not centrifugal compressors.(2) Closure device--A piece of equipment that covers an opening in the roof of a fixed roof storage tank and either can be temporarily opened or has a component that provides a temporary opening. Examples of closure devices include, but are not limited to, thief hatches, pressure relief valves, pressure-vacuum relief valves, and access hatches.(3) Difficult-to-monitor--Equipment that cannot be inspected without elevating the inspecting personnel more than two meters above a support surface.(4) Fugitive emission components--Except for vents as defined in §101.1 of this title (relating to Definitions) and sampling systems, equipment as defined in subparagraphs (A) and (B) of this paragraph that has the potential to leak volatile organic compounds (VOC) emissions.(A) At a natural gas processing plant, equipment considered fugitive components include, but are not limited to, any pump, pressure relief device, open-ended valve or line, valve, flange, or other connector that is in VOC service or wet gas service, and any closed vent system or control device not subject to another section in this division that specifies one or more instrument monitoring requirements for the system or device. A compressor or sampling connection system that is exempt from the fugitive monitoring requirements in §115.352 and §115.354 of this title (relating to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas) on or before December 31, 2022 is excluded as a fugitive monitoring component under this subparagraph.(B) At a well site or gathering and boosting station from equipment considered fugitive emissions components include, but are not limited to, valves, compressors, connectors, pressure relief devices, open-ended lines, flanges, instruments, meters, or other openings that are not on a storage tank subject to §115.175 of this title (relating to Storage Tank Control Requirements), and any closed vent system or control device not subject to another section in this division that specifies one or more instrument monitoring requirements for the system or device. A compressor seal at a gathering and boosting station that is addressed in §115.173 of this title (relating to Compressor Control Requirements) is not included as a fugitive emission component.(5) Gathering and boosting station--Any permanent combination of one or more compressors that collects natural gas from well sites and moves the natural gas at increased pressure into gathering pipelines to a natural gas processing plant or into the pipeline. The combination of one or more compressors located at a well site, or located at an onshore natural gas processing plant, is not a gathering and boosting station.(6) Heavy liquid service--Equipment is in heavy liquid service if the heavy liquid process fluid contains VOC having a true vapor pressure equal to or less than 0.044 pounds per square inch absolute (psia) (0.3 kiloPascals) at 68 degrees Fahrenheit (20 degrees Celsius).(7) Light liquid service--A piece of equipment contains a liquid that meets the following conditions.(A) The vapor pressure of one or more of the organic components is greater than 1.2 inches water at 68 degrees Fahrenheit (0.3 kiloPascals at 20 degrees Celsius).(B) The total concentration of the pure organic components having a vapor pressure greater than 1.2 inches water at 68 degrees Fahrenheit (0.3 kiloPascals at 20 degrees Celsius) is equal to or greater than 20.0% by weight.(C) The fluid is a liquid at operating conditions.(D) An equipment is in light liquid service if the weight percent evaporated is greater than 10.0% at 302 degrees Fahrenheit (150 degrees Celsius) as determined by ASTM Method D86-96.(8) Natural gas processing plant--any processing site engaged in the extraction of natural gas liquids from field gas, fractionation of mixed natural gas liquids to natural gas products, or both. A Joule-Thompson valve, a dew point depression valve, or an isolated or standalone Joule-Thompson skid is not a natural gas processing plant.(9) Pneumatic controller--An automated instrument that is actuated by a compressed gas and is used to maintain a process condition such as liquid level, pressure, pressure differential and temperature. When actuated by natural gas, pneumatic controllers are characterized primarily by their emission characteristics.(A) Continuous bleed pneumatic controllers receive a continuous flow of pneumatic natural gas supply and are used to modulate flow, liquid level, or pressure. Gas is vented continuously at a rate that may vary over time. Continuous bleed controllers are further subdivided into two types based on their bleed rate, which for the purposes of this section means the rate at which natural gas is continuously vented from a pneumatic controller and measured in standard cubic feet per hour (scfh):(i) low bleed controllers have a bleed rate of less than or equal to 6.0 scfh; and(ii) high bleed controllers have a bleed rate of greater than 6.0 scfh.(B) Intermittent bleed or snap-acting pneumatic controllers release natural gas intermittently only during control system actuation periods when they open, close, or throttle the gas flow to a control valve for actuation purposes. Intermittent bleed or snap-acting pneumatic controllers, as defined in this section, are not subject to 30 TAC §115.174(b)(2) bleed rate limits measured in scfh.(C) Zero-bleed pneumatic controllers do not bleed natural gas to the atmosphere. These pneumatic controllers are self-contained devices that release gas to a downstream pipeline instead of to the atmosphere.(10) Pneumatic pump--A positive displacement pump powered by pressurized natural gas that uses the reciprocating action of flexible diaphragms in conjunction with check valves to pump a fluid.(11) Reciprocating compressor--A piece of equipment that increases the pressure of a natural gas by positive displacement, employing linear movement of the driveshaft.(12) Rod packing--A series of flexible rings in machined metal cups that fit around the reciprocating compressor piston rod to create a seal limiting the amount of compressed natural gas that escapes to the atmosphere, or other mechanism that provides the same function.(13) Route to a process--The emissions are:(A) conveyed via a closed vent system to any enclosed portion of a process where it is predominantly recycled or consumed in the same manner as a material that fulfills the same function in the process or is transformed by chemical reaction into materials that are not regulated materials or incorporated into a product; or(B) recovered.(14) Storage tank--A tank, stationary vessel, or a container that contains an accumulation of crude oil, condensate, intermediate hydrocarbon liquids, or produced water, and that is constructed primarily of non-earthen materials.(15) Unsafe-to-monitor--Equipment that exposes monitoring personnel to an imminent or potential danger as a consequence of conducting an inspection.(16) Vapor recovery unit--A device that transfers hydrocarbon vapors to a fuel liquid or gas system, a sales liquid or gas system, or a liquid storage tank.(17) Wellhead--the piping, casing, tubing and connected valves protruding above the earth's surface for an oil and/or natural gas well. The wellhead ends where the flow line connects to a wellhead valve. The wellhead does not include other equipment at the well site except for any conveyance through which gas is vented to the atmosphere.(18) Well site--A parcel of land with one or more surface sites, which means sites with any combination of one or more graded pad sites, gravel pad sites, foundations, platforms, or the immediate physical location upon which equipment is physically affixed, that are constructed for the drilling and subsequent operation of one or more oil, natural gas, or injection wells. The meaning of "site" and "sites" in this definition is limited to this division.(19) Wet gas service--A piece of equipment which contains or contacts the field gas before the extraction step at a gas processing plant process unit.</content><note type="source"><p>Source Note: The provisions of this §115.171 adopted to be effective July 21, 2021, 46 TexReg 4313; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.172"><num value="115.172">§115.172</num><heading>Exemptions</heading><content>(a) The following exemptions apply to the equipment specified in §115.170 of this title (relating to Applicability) that is subject to this division. Records to support exemption qualification must be kept in accordance with the requirements in §115.180 of this title (relating to Recordkeeping Requirements). Additional requirements apply where specified.(1) Boilers and process heaters are exempt from the testing requirements of §115.179 of this title (relating to Approved Test Methods and Testing Requirements) and the monitoring requirements of §115.178 of this title (relating to Monitoring and Inspection Requirements) if:(A) a vent gas stream from equipment subject to this division is introduced with the primary fuel or is used as the primary fuel; or(B) the boiler or process heater has a design heat input capacity equal to or greater than 44 megawatts or 149.6 million British thermal units per hour.(2) Any pneumatic pump at a well site that operates fewer than 90 days per calendar year is exempt from the requirements of this division.(3) Except for the control requirements in §115.175(b) or (c) of this title (relating to Storage Tank Control Requirements), any storage tank that meets one of the following conditions is exempt from the requirements in this division:(A) a storage tank with the potential to emit of less than 6.0 tons per year of volatile organic compounds (VOC) emissions, which must be calculated in accordance with §115.175(c)(2) of this title;(B) a storage tank with uncontrolled actual VOC emissions of less than 4.0 tons per year, which must be calculated in accordance with §115.175(c)(1) of this title;(C) a process vessel such as a surge control vessel, bottom receiver, or knockout vessel;(D) a pressure vessel designed to operate in excess of 29.7 pounds per square inch absolute and designed to operate without emissions to the atmosphere; and(E) a vessel that is skid-mounted or permanently attached to something that is mobile (such as trucks, railcars, barges, or ships) and is intended to be located at a site for less than 180 consecutive days.(4) Fugitive emission components at a natural gas processing plant that contact a process fluid that contains less than 1.0% VOC by weight are exempt from the requirements of this division.(5) All pumps and compressors, other than those specified in §115.173 and §115.174 of this title (relating to Compressor Control Requirements and Pneumatic Controller and Pump Controller Requirements, respectively), that are equipped with a shaft sealing system that prevents or detects emissions of VOC from the seal are exempt from the fugitive monitoring requirements of §115.177 of this title (relating to Fugitive Emission Component Requirements). These seal systems may include, but are not limited to, dual pump seals with barrier fluid at higher pressure than process pressure, seals degassing to vent control systems kept in good working order, or seals equipped with an automatic seal failure detection and alarm system.(6) At a natural gas processing plant, components that are insulated, making them inaccessible to monitoring with a hydrocarbon gas analyzer, are exempt from the hydrocarbon gas analyzer monitoring requirements of §115.177 and §115.178 of this title. Inspections using audio, visual, and olfactory means must still be conducted in accordance with the appropriate requirements of §115.177 and §115.178 of this title.(7) At a natural gas processing plant, sampling connection systems, as defined in 40 Code of Federal Regulations (CFR) §63.161 (as amended January 17, 1997 (62 FR 2788)), that meet the requirements of 40 CFR §63.166(a) and (b) (as amended June 20, 1996 (61 FR 31439)) are exempt from the requirements of this division, except from the recordkeeping requirement in §115.180(2) of this title.(8) Fugitive emission components located at a well site with one or more wells that produce on average 15-barrel equivalents or less per day are exempt from the requirements of this division, except from the recordkeeping requirement in §115.180(2) of this title.(9) Natural gas processing plant pump, valve and connector fugitive components that contact a heavy liquid process fluid containing VOC having a true vapor pressure equal to or less than 0.044 pounds per square inch absolute (psia) (0.3 kiloPascals) at 68 degrees Fahrenheit (20 degrees Celsius) are exempt from the instrument monitoring (with a hydrocarbon gas analyzer) requirements of §115.177(b) of this title (relating to Monitoring and Inspection Requirements) if the components are inspected by visual, audio, and/or olfactory means according to the minimum inspection schedules specified in §115.177(b) of this title and the following procedures are followed when the inspection indicates that a leak may be present.(A) The owner or operator shall monitor the heavy liquid service component within five days by the method specified in 115.177(b) and shall comply with the requirements of subparagraphs (B) through (D) of this paragraph.(B) The owner or operator shall eliminate the visual, audible, olfactory, or other indication of a potential leak within five calendar days of detection.(C) If an instrument reading of 10,000 ppm or greater is measured, a leak is detected.(i) When a leak is detected, it shall be repaired as soon as practicable, but not later than 15 calendar days after it is detected, except as provided in 115.177(b).(ii) The first attempt at repair shall be made no later than 5 calendar days after each leak is detected.(D) First attempts at repair include, but are not limited to, the best operating practices described under 40 CFR §60.482-2a(c)(2) and §60.482-7a(e).(10) Natural gas processing plant pressure relief devices routed through a closed vent system to a control device, process or fuel gas system are exempt from the instrument monitoring (with a hydrocarbon gas analyzer) requirements of §115.177(b) of this title (relating to Monitoring and Inspection Requirements) if the owner or operator inspects components by visual, audio, and/or olfactory means according to the minimum inspection schedules specified in §115.177(b) of this title and complies with procedures specified in either §115.172(a)(10)(A), (C) and (D) or §115.172(a)(10)(B).(A) The owner or operator shall monitor the light liquid service component within five days by the method specified in 115.177(b) and shall comply with the requirements of paragraphs (C) through (D) of this subsection.(B) The owner or operator shall eliminate the visual, audible, olfactory, or other indication of a potential leak within five calendar days of detection.(C) If an instrument reading of 10,000 ppm or greater is measured, a leak is detected.(i) When a leak is detected, it shall be repaired as soon as practicable, but not later than 15 calendar days after it is detected, except as provided in 115.177(b).(ii) The first attempt at repair shall be made no later than 5 calendar days after each leak is detected.(D) First attempts at repair include, but are not limited to, the best operating practices described under 40 CFR §60.482-2a(c)(2) and §60.482-7a(e).(b) Equipment used only for materials outside the product stream from a crude oil or natural gas production well or after the point of custody transfer to a crude oil or natural gas distribution or storage segment is exempt from the requirements of this division.(c) After the appropriate compliance date in §115.183 of this title (relating to Compliance Schedules) and upon the date that the wet seals on a centrifugal compressor subject to subsection (a) of this section are retrofitted with a dual mechanical or other equivalent dry seal control system, the compressor no longer meets the applicability of this division.(d) After the appropriate compliance date in §115.183 of this title, if changes are made to a pneumatic pump or controller are such that the pump or controller does not meet the appropriate definitions in this division, the requirements of §115.174(a) or (b) of this title no longer apply. The change in applicability status must be documented in accordance with the recordkeeping requirements in §115.180 of this title. For example, a pneumatic controller converted to a solar-powered controller no longer meets the applicability of a pneumatic controller regulated by this division.(e) Well sites that only contain one or more wellheads and do not contain additional equipment are exempt from the monitoring requirements of §115.177(b).(f) Pressure relief valves vented to a process, fuel gas system, or equipped with a closed vent system routed to a control device that meet the requirements of §115.175(a)(2) and (4) are exempt from the monitoring requirements of §115.177(b), provided the closed vent system is monitored in accordance with §115.177.</content><note type="source"><p>Source Note: The provisions of this §115.172 adopted to be effective July 21, 2021, 46 TexReg 4313; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.173"><num value="115.173">§115.173</num><heading>Compressor Control Requirements</heading><content>(a) Owners or operators of centrifugal compressors with wet seal fluid degassing systems must comply with the following requirements.(1) Vapors must be routed from the wet seal fluid degassing system through a closed vent system that is designed and operated under normal operations to route all gases, vapors, and/or fumes from the wet seal fluid degassing system to a control device that meets the requirements of subsection (c) of this section. The closed vent system must operate under negative pressure at the inlet for vapors.(2) The compressor must be equipped with a seal cover that forms a continuous impermeable barrier over the entire liquid surface area, and the cover must remain in a sealed position (e.g., covered by a gasketed lid or cap) except during periods necessary to inspect, maintain, repair, or replace equipment.(b) Owners or operators of reciprocating compressors must comply with paragraph (1), (2) or (3) of this subsection.(1) Replace the compressor rod packing on or before the compressor has operated for 26,000 hours from the most recent rod packing replacement. The number of hours the compressor operates must be continuously recorded beginning on the appropriate compliance date in §115.183 of this title (relating to Compliance Schedule).(2) Replace the compressor rod packing within 36 months from the most recent rod packing replacement beginning from the appropriate compliance date in §115.183 of this title.(3) Operate a closed vent system under negative inlet pressure that captures and routes rod packing vapor to a control device that meets the requirements of subsection (c) of this section.(c) A control device, other than a device specified in paragraphs (3) or (4) of this subsection, may be used and must maintain a VOC control efficiency of at least 95% or a VOC concentration of equal to or less than 275 parts per million by volume (ppmv), as propane, on a wet basis corrected to 3% oxygen. The 95% VOC control efficiency and 275 ppmv VOC concentration are calculated from the gas stream at the control device outlet.(1) The control device must be operated at all times when gases, vapors, or fumes are vented from the closed vent system to the control device. For a boiler or process heater used as the control device, the vent gas stream must be introduced into the flame zone of the boiler or process heater. Multiple vents may be routed to the same control device. Control devices and closed vent systems must comply with §115.178 of this title (relating to Monitoring and Inspection Requirements) and §115.179 of this title (relating to Approved Test Methods and Testing Requirements).(2) Control devices must operate with no visible emissions, as determined through a visible emissions test conducted according to United States Environmental Protection Agency (EPA) Method 22, 40 Code of Federal Regulations (CFR) Part 60, Appendix A-7, Section 11, except for periods not to exceed a total of one minute during any 15-minute observation period.(3) A flare may be used and must be designed and operated in accordance with 40 CFR §60.18(b) - (f) (as amended through December 22, 2008 (73 Federal Register (FR) 78209)). The flare must be lit at all times when VOC vapors are routed to the flare. Multiple vents may be routed to the same control device.(4) VOC emissions may be routed to a process if the emissions are compatible with the process and would be retained within the process. Routing to a process is considered equivalent to a 95% control efficiency.(5) A bypass installed on a closed vent system able to divert any portion of the flow from entering a control device or routing to a process must be in compliance with subparagraphs (A) or (B) of this paragraph.(A) A flow indicator must be installed, calibrated, and maintained at the inlet of each bypass. The flow indicator must take a reading at least once every 15 minutes and initiate an alarm notifying operators to take prompt remedial action when bypass flows are present.(B) Each bypass valve must be secured in the non-diverting position using a car-seal or a lock-and-key type configuration.</content><note type="source"><p>Source Note: The provisions of this §115.173 adopted to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.174"><num value="115.174">§115.174</num><heading>Pneumatic Controller and Pump Control Requirements</heading><content>(a) The following control requirements apply to any pneumatic pump or pneumatic controller at a natural gas processing plant.(1) The pneumatic pump drive must not emit volatile organic compounds (VOC) emissions to the atmosphere.(2) Each single continuous-bleed pneumatic controller must have a natural gas bleed rate equal to 0.0 standard cubic feet per hour (scfh).(b) The following control requirements apply to any pneumatic pump or pneumatic controller subject to this division at a location other than at a natural gas processing plant.(1) VOC emissions from each pneumatic pump must be reduced by 95%.(2) Each pneumatic controller must have a natural gas bleed rate of less than or equal to 6.0 scfh.(c) A control device used to comply with this section must meet one of the following conditions at all times when VOC vapors are routed to the control device or to a process. Multiple vents may be routed to the same control device or process. The VOC vapors must be routed through a closed vent system, which must be designed and operated to route all captured VOC vapors to a process or a control device under normal operations. Control devices and closed vent systems must be in compliance with §115.178 of this title (relating to Monitoring and Inspection Requirements) and §115.179 of this title (relating to Approved Test Methods and Testing Requirements).(1) A control device, other than a device specified in paragraphs (2) and (3) of this subsection, may be used and must maintain a minimum control efficiency of at least 95% or a VOC concentration of equal to or less than 275 parts per million by volume (ppmv), as propane, on a wet basis corrected to 3% oxygen. The 95% VOC control efficiency and 275 ppmv VOC concentration are calculated from the gas stream at the control device outlet. For a boiler or process heater used as the control device, the vent gas stream must be introduced into the flame zone of the boiler or process heater.(2) A flare may be used and must be designed and operated in accordance with 40 Code of Federal Regulations (CFR) §60.18(b) - (f) (as amended through December 22, 2008 (73 FR 78209)). The flare must be lit at all times when VOC vapors are routed to the flare.(3) VOC emissions may be routed to a process if the emissions are compatible with the process and would be retained within the process. Routing to a process is considered equivalent to a 95% control efficiency.(4) A control device used to comply with paragraph (1) of this subsection must operate with no visible emissions, as determined through a visible emissions test conducted according to United States Environmental Protection Agency (EPA) Method 22, 40 CFR Part 60, Appendix A-7, Section 11 (as amended March 16, 2015 (83 FR 13751)), except for periods not to exceed a total of one minute during any 15-minute observation period.(d) The following requirements apply to a bypass installed on a closed vent system able to divert any portion of the flow from entering a control device or routing to a process.(1) A flow indicator must be installed, calibrated, and maintained at the inlet of each bypass. The flow indicator must take a reading at least once every 15 minutes and initiate an alarm notifying operators to take prompt remedial action when bypass flows are present.(2) Each bypass valve must be secured in the non-diverting position using a car-seal or a lock-and-key type configuration.(e) The following exceptions apply, as specified, to the pneumatic controller or pneumatic pump control requirements in subsections (a) or (b) of this section.(1) By the appropriate compliance date in §115.183 of this title (relating to Compliance Schedules), the VOC emissions from a pneumatic pump at a well site for which a control device does not exist and for which routing to a process is technically infeasible, as demonstrated in paragraph (3) of this subsection, are not required to be controlled in accordance with subsection (b) of this section. The owner or operator shall maintain records documenting that there is no control device available and whereupon this exclusion no longer applies, the owner or operator shall be in compliance with the control requirements of subsection (b) of this section and shall keep records documenting the change in compliance with the initial report as required in §115.180 of this title (relating to Recordkeeping Requirements).(2) By the appropriate compliance date in §115.183 of this title, a control device located at the same site as a pneumatic pump, and with which controlling the VOC emissions from the pneumatic pump is technically feasible, that achieves a control efficiency less than 95% must be used if a control device achieving a 95% control efficiency is not available. If more than one control device with less than 95% control efficiency is available, the control device with the highest control efficiency must be used. The same monitoring, testing, and recordkeeping requirements apply to such a control device that apply to control devices in subsection (c) of this section.(3) For a pneumatic pump located at a well site for which the control requirements in this section are technically infeasible, the owner or operator shall make a demonstration of technical infeasibility in accordance with §115.176(b) of this title (relating to Alternative Control Requirements). Upon the date the demonstration of technical infeasibility is no longer true, whereupon this exclusion no longer applies, the owner or operator shall comply with the control requirements of this section and shall keep records documenting the change in compliance with the initial report as required in §115.180 of this title.(4) For a pneumatic controller for which there is a functional need for a bleed rate greater than the limits in subsection (a) of this section, the owner or operator shall make and maintain record of a determination of functional need in accordance with §115.176(c) of this title. Upon the date the determination of functional need is no longer true, the owner or operator shall comply with the control requirements of this section and shall keep records documenting the change in compliance with the initial report as required in §115.180 of this title.(f) Pneumatic pumps and controllers subject to this division must be operated and maintained in accordance with manufacturer's recommendations.</content><note type="source"><p>Source Note: The provisions of this §115.174 adopted to be effective July 21, 2021, 46 TexReg 4313.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.175"><num value="115.175">§115.175</num><heading>Storage Tank Control Requirements</heading><content>(a) No person shall place, store, or hold crude oil or condensate in any storage tank unless the tank is capable of maintaining working pressure sufficient at all times to prevent any vapor or gas loss to the atmosphere or is in compliance with the following controls.(1) All openings in a fixed roof storage tank through which vapors are not routed to a vapor recovery unit or other control device specified in paragraph (2) of this subsection, must be equipped with a closure device maintained according to the manufacturer's instructions and operated according to this paragraph. If manufacturer instructions are unavailable, industry standards consistent with good engineering practice can be substituted.(A) Each closure device must be closed at all times except when normally actuated or required to be open for temporary access or to relieve excess pressure or vacuum in accordance with the manufacturer's design and consistent with good air pollution control practices. Such opening, actuation, or use must be limited to minimize vapor loss.(B) Each closure device must be properly sealed to minimize vapor loss and must form a continuous impermeable barrier over the entire surface area of the liquid in the storage tank when closed.(C) Each closure device must either be latched closed or, if designed to relieve pressure, set to automatically open at a pressure that will ensure all vapors are routed to the vapor recovery unit or other control device under normal operating conditions other than gauging the tank or taking a sample through an open thief hatch.(D) No closure device may be allowed to have a volatile organic compound (VOC) leak for more than 15 calendar days after the leak is found unless delay of repair is allowed. For the purposes of this subparagraph, a leak is the exuding of process gasses from a closed device detected by audio, visual, and olfactory means. If parts are unavailable, repair may be delayed. Parts must be ordered promptly, and the repair must be completed within five days of receipt of required parts. Repair may be delayed until the next shutdown if the repair of the component would require a shutdown that would create more emissions than the repair would eliminate. Repair must be completed by the end of the next shutdown.(2) A control device used to comply with this subsection must meet one of the following conditions at all times when VOC vapors are routed to the device. The VOC vapors must be routed through a closed vent system that must be designed and operated to route to a control device, including to route to a process, all captured VOC vapor . Multiple vents may be routed to the same control device. Control devices and closed vent systems must comply with the requirements of §115.178 of this title (relating to Monitoring and Inspection Requirements) and §115.179 of this title (relating to Approved Test Methods and Testing Requirements).(A) A control device, other than a device specified in subparagraphs (B) and (C) of this paragraph, to which VOC vapors are routed, must maintain a control efficiency of at least 95% or a VOC concentration of equal to or less than 275 parts per million by volume (ppmv), as propane, on a wet basis corrected to 3% oxygen. The 95% VOC control efficiency and 275 ppmv VOC concentration are calculated from the gas stream at the control device outlet. For a boiler or process heater used as the control device, the vent gas stream must be introduced into the flame zone of the boiler or process heater.(B) A flare must be designed and operated in accordance with 40 Code of Federal Regulations (CFR) §60.18(b) - (f) (as amended through December 22, 2008 (73 FR 78209)). The flare must be lit at all times when VOC vapors are routed to the flare.(C) A vapor recovery unit must be designed to process all vapor generated by the maximum liquid throughput of the storage tank or the aggregate of storage tanks in a tank battery and must transfer recovered vapors to a pipe or container that is vapor-tight, as defined in §115.10 of this title (relating to Definitions).(D) A control device, used to comply with subparagraph (A) of this paragraph, must operate with no visible emissions, as determined through a visible emissions test conducted according to United States Environmental Protection Agency (EPA) Method 22, 40 CFR Part 60, Appendix A-7, Section 11 (as amended March 16, 2015 (83 FR 13751)), except for periods not to exceed a total of one minute during any 15-minute observation period.(3) Beginning on the appropriate compliance date in §115.183 of this title (relating to Compliance Schedules), any storage tank that stores crude oil or condensate with a true vapor pressure of greater than or equal to 11 pounds per square inch absolute (psia) and a storage capacity of at least 40,000 gallons, and was required to use a submerged fill pipe under Table 2 in §115.112(e)(1) of this title (relating to Control Requirements), must continue to use a submerged fill pipe.(4) The following requirements apply to a bypass installed on a closed vent system able to divert any portion of the flow from entering a control device or routing to a process.(A) A flow indicator must be installed, calibrated, and maintained at the inlet of each bypass. The flow indicator must take a reading at least once every 15 minutes and initiate an alarm notifying operators to take prompt remedial action when bypass flows are present.(B) Each bypass valve must be secured in the non-diverting position using a car-seal or a lock-and-key type configuration.(b) Any storage tank with the potential to emit less than 6.0 tons per year of VOC, and any storage tank with the potential to emit at least 6.0 tons per year of VOC emissions but that demonstrates uncontrolled actual VOC emissions are less than 4.0 tons per year, is not required to be in compliance with the control requirements in subsection (a) of this section unless the tank was required to comply with a control requirement in §115.112(e) of this title on or before December 31, 2022. The owner or operator shall continue to comply with the control requirement that applied as of December 31, 2022 in the Table in §115.112(e) of this title. The calculation of emissions demonstrating that actual VOC emissions are less than 4.0 tons per year for 12 consecutive months based on average monthly throughput must be performed on a monthly basis.Attached Graphic(c) The owner or operator shall calculate VOC emissions as follows.(1) Uncontrolled VOC emissions for a fixed roof storage tank must be estimated using the highest 12 consecutive months out of the last five years of production data for the initial determination in accordance with the appropriate compliance date in §115.183 of this title, and one of the following methods. However, if emissions determined using direct measurements or other methods approved by the executive director under subparagraph (A) or (B) of this paragraph are higher than emissions estimated using the default factors or charts in subparagraph (C) or (D) of this paragraph, the higher values must be used.(A) The owner or operator may make direct measurements using the measuring instruments and methods specified in §115.179 of this title.(B) The owner or operator may use other test methods or computer simulations approved by the executive director.(C) The owner or operator may use a factor of 33.3 pounds of VOC per barrel (42 gallons) of condensate produced or 1.6 pounds of VOC per barrel (42 gallons) of oil produced.(D) For crude oil storage only, the owner or operator may use the chart in Exhibit 2 of the EPA's Lessons Learned from Natural Gas Star Partners: Installing Vapor Recovery Units on Crude Oil Storage Tanks, October 2003, and assuming that the hydrocarbon vapors have a molecular weight of 34 pounds per pound mole and are 48% by weight VOC.(2) The VOC potential to emit must be based on the maximum average daily throughput determined for a 30-day period of production prior to the appropriate compliance date listed in §115.183 of this title.(d) For an external floating roof or internal floating roof storage tank, the following requirements apply.(1) All openings in an internal floating roof or external floating roof must provide a projection below the liquid surface. Automatic bleeder vents (vacuum breaker vents) and rim space vents are not subject to this requirement.(2) All openings in an internal floating roof or external floating roof must be equipped with a deck cover. The deck cover must be equipped with a gasket in good operating condition between the cover and the deck. The deck cover must be closed (i.e., no gap of more than 1/8 inch) at all times, except when the cover must be open for access. Automatic bleeder vents (vacuum breaker vents), rim space vents, leg sleeves, and roof drains are not subject to this requirement.(3) Automatic bleeder vents (vacuum breaker vents) and rim space vents must be equipped with a gasketed lid, pallet, flapper, or other closure device and must be closed (i.e., no gap of more than 1/8 inch) at all times except when required to be open to relieve excess pressure or vacuum in accordance with the manufacturer's design.(4) Each opening into the internal floating roof for a fixed roof support column may be equipped with a flexible fabric sleeve seal instead of a deck cover.(5) Any external floating roof drain that empties into the stored liquid must be equipped with a slotted membrane fabric cover that covers at least 90% of the area of the opening or an equivalent control that must be kept in a closed (i.e., no gap of more than 1/8 inch) position at all times except when the drain is in actual use. Stub drains on an internal floating roof storage tank are not subject to this requirement.(6) There must be no visible holes, tears, or other openings in any seal or seal fabric.(7) For an external floating roof storage tank, secondary seals must be the rim-mounted type. The seal must be continuous from the floating roof to the tank wall, with the exception of gaps that do not exceed the following specification. The accumulated area of gaps that exceed 1/8 inch in width between the secondary seal and storage tank wall may not be greater than 1.0 square inch per foot of storage tank diameter.(8) Each opening for a slotted guide pole in an external floating roof storage tank must be equipped with one of the following control device configurations:(A) a pole wiper and pole float that has a seal or wiper at or above the height of the pole wiper:(B) a pole wiper and a pole sleeve;(C) an internal sleeve emission control system;(D) a retrofit to a solid guide pole system;(E) a flexible enclosure system; or(F) a cover on an external floating roof tank.(9) The external floating roof or internal floating roof must be floating on the liquid surface at all times, except as allowed under the following circumstances:(A) during the initial fill or refill after the storage tank has been cleaned;(B) when necessary for preventive maintenance, roof repair, primary seal inspection, or removal and installation of a secondary seal, if product is not transferred into or out of the storage tank, emissions are minimized, and the repair is completed within seven calendar days;(C) when the storage tank has a storage capacity less than 25,000 gallons;(D) when the vapors are routed to a control device from the time the storage tank has been emptied to the extent practical or the drain pump loses suction until the floating roof is within 10% by volume of being refloated;(E) when all VOC emissions from the storage tank, including emissions from floating roof landings, have been included in an emissions limit or cap approved under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) prior to March 1, 2013; or(F) when all VOC emissions from floating roof landings at the regulated entity are less than 25 tons per year.</content><note type="source"><p>Source Note: The provisions of this §115.175 adopted to be effective July 21, 2021, 46 TexReg 4313.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.176"><num value="115.176">§115.176</num><heading>Alternative Control Requirements</heading><content>(a) Alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.(b) The owner or operator of a pneumatic pump at a well site making a determination of technical infeasibility as provided in §115.174(e)(3) of this title (relating to Pneumatic Controller and Pump Control Requirements) shall make a clear demonstration that includes, but is not limited to, the following information:(1) the specific equipment for which technical infeasibility exists;(2) the reason such equipment cannot be controlled by any available control option, such as but is not limited to, safety considerations, distance from the control device, pressure losses and differentials in the closed vent system, and the ability of the control device to handle the pump emissions;(3) data to support reasoning in paragraph (2) of this subsection; and(4) a certification signed and dated by a qualified professional engineer certifying that the assessment of technical infeasibility prepared was true, accurate, and complete and that knowingly submitting false information is a violation of this subsection.(c) The owner or operator of a pneumatic controller at a natural gas processing plant making a determination of a functional need as specified in §115.174(e)(4) of this title, must perform the following:(1) tag the pneumatic controller with a weatherproof tag; and(2) provide the reason meeting the control requirements cannot be met due to the functional need.</content><note type="source"><p>Source Note: The provisions of this §115.176 adopted to be effective July 21, 2021, 46 TexReg 4313.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.177"><num value="115.177">§115.177</num><heading>Fugitive Emission Component Requirements</heading><content>(a) The owner or operator of equipment with fugitive emission components shall create a written plan and maintain such plan in accordance with §115.180 of this title (relating to Recordkeeping Requirements) that details information about the site subject to this section including, but not limited to, the following:(1) the identification of each fugitive emission component grouping required to be monitored;(2) the fugitive emission component designated as unsafe-to-monitor or difficult-to-monitor;(3) the exemptions or exceptions that apply to any fugitive emission component;(4) the method of monitoring; and(5) the monitoring survey schedules of the fugitive emission components in paragraph (1) or (2) of this subsection.(b) The owner or operator shall monitor each affected fugitive emission component and calibrate the hydrocarbon gas analyzer instrumentation in accordance with procedures specified by the United States Environmental Protection Agency (EPA) Method 21 in 40 Code of Federal Regulations (CFR) Part 60, Appendix A-7. The owner or operator may elect to use the alternative work practice in §115.358 of this title (relating to Alternative Work Practice) for any fugitive emission component, as specified in paragraph (11) of this subsection.(1) Except as provided in paragraph (5)(C) of this subsection, no component at a natural gas processing plant is allowed to have a volatile organic compounds (VOC) leak for more than five calendar days without a first attempt at repair after the leak is detected and must be repaired no later than 15 calendar days after the leak is found that meets the following:(A) for pump seals in light-liquid service, a leak definition of 5,000 parts per million by volume (ppmv) for a pump used for any polymerizing monomer and 2,000 ppmv for all other pumps;(B) for valves, flanges, connectors, pressure relief devices, pumps in heavy-liquid service, sampling connections, and process drains, a leak definition of 500 ppmv; and(C) for compressors, a leak definition of 10,000 ppmv or exuding of process fluid based on sight, smell, or sound.(2) Except as provided in paragraph (5)(C) of this subsection, no fugitive emission component at a well site or gathering and boosting station is allowed to have a VOC leak of equal to or greater than 500 ppmv for more than five calendar days without a first attempt at repair after the leak is detected and must be repaired no later than 15 calendar days after the leak is found.(3) Except as specified in subsection (c) of this section, the owner or operator shall conduct monitoring according to the following schedules.(A) The owner or operator of a natural gas processing plant shall monitor annually to detect leaks of VOC emissions from all connectors.(B) Except as provided in subparagraph (E) of this paragraph, the owner or operator shall monitor to detect leaks of VOC emissions from all:(i) fugitive emission components at gathering and boosting stations quarterly; and(ii) fugitive emission components at well sites semiannually.(C) The owner or operator shall monitor quarterly to detect VOC emissions leaks from all:(i) pump seals at a natural gas processing plant that are not in light-liquid service; and(ii) fugitive emission components at a natural gas processing plant not specified elsewhere in this paragraph.(D) The owner or operator shall monitor monthly to detect leaks of VOC emissions at a natural gas processing plant from all:(i) pressure relief valves in gaseous service;(ii) pump seals in light-liquid service; and(iii) accessible fugitive emission components in gas/vapor and light-liquid service, except for connectors.(E) In addition to monitoring in subparagraphs (B)(i), (B)(ii), and (D)(i) of this paragraph, the owner or operator shall monitor pressure relief valves within 24 hours of a release.(F) At a natural gas processing plant, the owner or operator shall visually inspect for indications of dripping liquid each pump in light liquid service weekly. If evidence of a leak is found, the owner or operator shall monitor each leaking pump in accordance with Method 21 in 40 CFR Part 60, Appendix A-7 or the alternative work practice in §115.358 of this title within five calendar days after the leak is detected.(4) Upon the detection of a leaking fugitive emission component, the owner or operator shall affix to the leaking component a weatherproof and readily visible tag, bearing an identification number and the date the leak was detected. This tag must remain in place, or be replaced if damaged, until the leaking component is repaired. Tagging of difficult-to-monitor leaking components may be done by reference tagging. The reference tag should be located as close as possible to the leaking component and should clearly identify the leaking component and its location.(5) When a leak or defect is detected from a fugitive emission component, the owner or operator shall repair the leak or defect as soon as practicable.(A) A first attempt at repair must be made no later than five calendar days after the leak is detected.(B) A repair must be completed no later than 15 calendar days after the leak is detected.(C) If an owner or operator determines and documents that a repair is technically infeasible without a shutdown, vent blowdown at a well site or gathering and boosting station, well shut-in, would be unsafe to repair during operation of the unit, or that emissions resulting from immediate repair would be greater than the total fugitive emissions likely to result from a delay of repair, then the repair is not required to be completed until the end of the next shutdown, vent blowdown at a well site or gathering and boosting station, well shut-in, or unplanned blowdown. Any repair under this subparagraph at a well site or gathering and boosting station must be made within two years after the leak is detected.(D) For the owner or operator using the alternative work practice in §115.358 of this title to monitor fugitive emission components, repair is complete once a monitoring survey using EPA Method 21 in 40 CFR Part 60, Appendix A-7 or the alternative work practice in §115.358 of this title shows no leaking. For the owner or operator using Method 21 in 40 CFR Part 60, Appendix A-7 or audio, visual, or olfactory means to monitor fugitive emission components, repair is complete once the monitoring required under this section shows no leaking. At a well site or gathering and boosting station, this monitoring survey to check that the leak is fixed must be done within 30 days of the repair attempt. At a natural gas processing plant, if a shutdown is needed as specified in subparagraph (C) of this paragraph, the monitoring survey to check that the leak is fixed must be done within 15 days of startup of the process unit.(6) If the executive director determines that the number of leaks in a process area is excessive, the monitoring schedule in this subsection may be modified to require an increase in the frequency of monitoring in a given process area.(7) Any fugitive component that is monitored monthly in accordance with EPA Method 21 to comply with §115.177(b)(3)(D) and not found leaking for two successive monthly monitoring periods may be monitored quarterly, beginning with the first month of the next quarter until a leak is detected. Any component found to be leaking must be returned to its original monthly monitoring schedule until it does not show evidence of a leak for two successive months. After completion of the required valve monitoring in this subsection for a period of at least two years, the owner or operator of a natural gas processing plant may request in writing to the appropriate regional office that the valve monitoring schedule be revised based on the percent of valves leaking. Valid historical monitoring data may be used to satisfy the initial 2-year data collection period requirement. The percent of valves leaking must be determined by dividing the sum of valves leaking during the current monitoring period and valves for which repair has been delayed by the total number of valves subject to monitoring requirements. The revised monitoring schedule is not effective until a response is received from the executive director. This request must include all data that have been developed to justify the following modifications in the monitoring schedule.(A) After two consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0% using EPA Method 21, an owner or operator may begin to skip one of the quarterly leak detection periods for the valves in gas/vapor and light liquid service.(B) After five consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0% using EPA Method 21, an owner or operator may begin to skip three of the quarterly leak detection periods for the valves in gas/vapor and light liquid service.(8) All component monitoring must occur when the component is in contact with process material and the process unit is in service. If a unit is not operating during the required monitoring period but a component in that unit is in contact with process fluid that is circulating or under pressure, then that component is considered to be in service and is required to be monitored. Valves must be in gaseous or light liquid service to be considered in the total valve count for alternate valve monitoring schedules of paragraph (7) of this subsection.(9) Monitored screening concentrations must be recorded for each component in gaseous or light liquid service. Notations such as "pegged," "off scale," "leaking," "not leaking," or "below leak definition" may not be substituted for hydrocarbon gas analyzer results. For readings that are higher than the upper end of the scale (i.e., pegged) even when using the highest scale setting or a dilution probe, a default pegged value of 100,000 ppmv must be recorded. This requirement does not apply to monitoring using an optical gas imaging instrument, which makes emissions visible that may otherwise be invisible to the naked eye, in accordance with §115.358 of this title.(10) The owner or operator shall check all new connectors for leaks within 30 days of being placed in VOC service by monitoring with a hydrocarbon gas analyzer for components in light-liquid and gas service and by using visual, audio, and/or olfactory means for components in heavy-liquid service. Components that are unsafe-to-monitor or inspect are exempt from this requirement if they are monitored or inspected as soon as possible during times that are safe to monitor.(11) For any fugitive emission component for which the owner or operator elects to use the alternative work practice in §115.358 of this title, the following provisions apply.(A) At a natural gas processing plant, the frequency for monitoring components listed in this section must be the frequency determined according to §115.358 of this title. At a well site or gathering and boosting station, the frequency for monitoring components using optical gas imaging is the frequency in paragraph (3) of this subsection.(B) The alternative monitoring schedules allowed under paragraph (7) of this subsection are not allowed.(C) At a well site or gathering and boosting station, the requirements in §115.358 of this title, except for the requirements in §115.358(e) and (f) of this title, apply in addition to the appropriate requirements in this section. At a natural gas processing plant, the requirements in §115.358 of this title apply in addition to the applicable requirements in this section.(D) The owner or operator may still classify a component as unsafe-to-monitor as allowed under subsection (c) of this section if the component cannot safely be monitored using either a hydrocarbon gas analyzer or the alternative work practice. The owner or operator may use either EPA Method 21 in 40 CFR Part 60, Appendix A-7 or the alternative work practice at the monitoring frequency specified in paragraph (3) of this subsection. Any component classified as unsafe-to-monitor under the alternative work practice must be identified as such in the list required in §115.180(7) of this title.(E) If the executive director determines that there is an excessive number of leaks in any given process area for which the alternative work practice in §115.358 of this title is used, the executive director may require an increase in the frequency of monitoring under the alternative work practice in that process area.(c) An owner or operator is not required to comply with monitoring frequencies in subsection (b) of this section for any fugitive emission component designated as unsafe-to-monitor or difficult-to-monitor.(1) Any component, except closed vent systems, designated difficult-to-monitor must be monitored at least once per calendar year. Difficult-to-monitor closed vent system components must be monitored at least once every five years.(2) Any component designated unsafe-to-monitor must be monitored as frequently as practicable during a time when it is safe-to-monitor, not to exceed the monitoring frequency in subsection (b) of this section.(3) The number of components designated as difficult-to-monitor may not exceed 3% of total affected components in the same classification (e.g., pumps, valves, flanges, connectors etc.) at the site.(4) The owner or operator shall inspect all flanges weekly by audio, visual, and olfactory means, excluding flanges that are monitored at least once each calendar year using EPA Method 21 in 40 CFR Part 60, Appendix A-7 and flanges that are difficult-to-monitor and unsafe-to-monitor. Flanges that are difficult-to-monitor and unsafe-to-monitor must be identified in a list made available upon request. If a difficult-to-monitor or an unsafe-to-monitor flange is not considered safe to inspect within the required weekly time frame, then it must be inspected as soon as possible during a time that it is safe to inspect.(5) Relief valves that are designated as unsafe-to-monitor must be monitored as soon as possible during times that are safe to monitor after any release event. Relief valves that are designated as difficult-to-monitor must be monitored within 15 days after a release.</content><note type="source"><p>Source Note: The provisions of this §115.177 adopted to be effective July 21, 2021, 46 TexReg 4313; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.178"><num value="115.178">§115.178</num><heading>Monitoring and Inspection Requirements</heading><content>(a) At least once each calendar year, an owner or operator shall conduct an audio, visual, and olfactory inspection of each compressor seal cover for defects that may result in air emissions, except as provided in subsection (c) of this section. Defects include, but are not limited to, visible cracks, holes, or gaps in the cover, or between the cover and the separator wall; broken, cracked, or otherwise damaged seals or gaskets on cover devices; and broken or missing hatches, access covers, caps, or other cover devices. Repairs must be made in accordance with subsection (e) of this section.(b) The following monitoring and inspection requirements apply to closed vent systems routed to a control device, including routing to a process, used to demonstrate compliance with the control requirements of this division, except as specified in subsection (c) of this section. For the purpose of this subsection, a leak is a measured volatile organic compounds (VOC) concentration of equal to or greater than 500 parts per million by volume (ppmv). Defects that could result in air emissions include visible cracks, holes, or gaps in piping; loose connections; liquid leaks; or broken or missing cover devices. Repairs of equipment with a leak or detection of a defect in equipment must be made in accordance with subsection (e) of this section.(1) The owner or operator shall conduct initial inspection and monitoring by the appropriate compliance date listed in §115.183 of this title (relating to Compliance Schedules), using United States Environmental Protection Agency (EPA) Method 21 in 40 Code of Federal Regulations (CFR) Part 60, Appendix A-7 on all closed vent system components to demonstrate that the closed vent system operates with no leaks. The instrument response factor criteria in EPA Method 21 in 40 CFR Part 60, Section 8.1.1 must be for the average composition of the stream and not for each individual VOC constituent.(2) The owner or operator shall conduct annual monitoring and inspections following the initial inspection conducted in paragraph (1) of this subsection.(A) The owner or operator shall conduct an audio, visual, and olfactory inspection on closed vent system joints, seams, or other connections that are permanently or semi-permanently sealed (e.g., a welded joint between two sections of hard piping or a bolted and gasketed ducting flange) for defects that could result in air emissions. For an inspection using EPA Method 21 in 40 CFR Part 60, Appendix A-7, monitoring must be performed to demonstrate that there are no leaks following any time a component is repaired or the closed vent system connection is unsealed.(B) The owner or operator shall monitor the closed vent system components and connections using EPA Method 21 in 40 CFR Part 60, Appendix A-7, other than those subject to subparagraph (A) of this paragraph, to demonstrate that the closed vent system operates with no leaks.(3) The owner or operator of a closed vent system routed to a control device, including routing to a process, used to demonstrate compliance with the control requirements of this division, must conduct monitoring using EPA Method 21 in 40 CFR Part 60, Appendix A-7 to demonstrate there are no leaks from the closed vent system.(A) The instrument response factor criteria in EPA Method 21 in 40 CFR Part 60, Section 8.1.1 must be for the average composition of the stream and not for each individual VOC constituent. For process streams that contain nitrogen, air, or other inert gases that are not VOC, the average stream response factor is calculated on an inert-free basis.(B) An owner or operator shall calibrate the detection instrument using the procedures specified in EPA Method 21 in 40 CFR Part 60, Appendix A-7 before use on each day the instrument is used.(C) The following calibration gases must be used.(i) Zero air must contain less than 10 ppmv hydrocarbon in air.(ii) The other calibration gases must be mixtures of methane or n-hexane in air, one with a concentration either of less than 10,000 ppmv, and another with a concentration of no more than 2,000 ppmv greater than the leak definition concentration of the equipment monitored. If the design of the monitoring instrument allows for multiple calibration scales, then the lower scale shall be calibrated with a calibration gas that is no higher than 2,000 ppmv above the concentration specified as a leak, and the highest scale shall be calibrated with a calibration gas that is approximately equal to 10,000 ppmv. If only one scale on an instrument will be used during monitoring, the owner or operator is not required to calibrate the scales that will not be used during monitoring that day.(D) The owner or operator shall follow EPA Method 21 in 40 CFR Part 60, Appendix A-7 to adjust instrument readings if choosing to account for the background VOC level.(E) Using the following parameters, the owner or operator shall determine if a potential leak interface operates with no detectable emissions. A potential leak interface is determined to operate with no detectable VOC emissions if the organic concentration value is less than 500 ppmv.(i) If an owner or operator chooses not to adjust the detection instrument readings for the background VOC concentration level, then the maximum organic concentration value measured by the detection instrument must be compared to the 500 ppmv value for the potential leak interface.(ii) If an owner or operator chooses to adjust the detection instrument readings for the background VOC concentration level, an owner or operator shall compare the value of the arithmetic difference between the maximum organic concentration value measured by the instrument and the background organic concentration value with the 500 ppmv value for the potential leak interface.(c) Closed vent system components and compressor seal covers that are designated as unsafe-to-monitor or difficult-to-monitor are not subject to the inspection and monitoring frequency in subsection (b) of this section. The monitoring methods of the components and covers that apply in subsections (a) and (b) of this section apply to the components in this subsection.(1) Unsafe-to-monitor components must be identified in a list in accordance with the requirements in §115.180 of this title (relating to Recordkeeping Requirements). If an unsafe-to-monitor component is not considered safe to monitor within a calendar year, then it must be monitored as soon as possible during times that are safe to monitor.(2) Difficult-to-monitor components must be identified in a list in accordance with the requirements in §115.180 of this title. A difficult-to-monitor component must be inspected at least once every five years.(d) Upon the detection of a leak, the owner or operator shall affix to the leaking component a weatherproof and readily visible tag bearing an identification number and the date the leak was detected. This tag must remain in place, or be replaced if damaged, until the leaking component is repaired. Tagging of difficult-to-monitor leaking components may be done by reference tagging. The reference tag should be located as close as possible to the leaking component and should clearly identify the leaking component and its location.(e) The owner or operator shall repair a leak or defect as soon as practicable and shall make a first attempt to repair a leak or defect no later than five calendar days after the leak or defect is found. The component must be repaired no later than 15 calendar days after the leak or defect is found, except if a delay of repair is needed. If parts are unavailable, repair may be delayed if parts are ordered promptly. The repair must be completed within five days of receipt of the required parts. Repair may be delayed until the next shutdown if the repair of the component would require a shutdown that would create more total VOC emissions than the repair would eliminate, but the repair must be completed by the end of the next shutdown. A repair is complete once an EPA Method 21 or audio, visual, and olfactory inspection, as appropriate, under subsection (b)(2) or (3) of this section is conducted showing no leak or defect.(f) The owner or operator shall install and maintain monitors to measure operational parameters of any control device installed to meet applicable control requirements of this division. Such monitors must be sufficient to demonstrate proper functioning of those devices to design specifications.(1) For a direct-flame incinerator, the owner or operator shall continuously monitor the exhaust gas temperature immediately downstream of the device.(2) For a condensation system, the owner or operator shall continuously monitor the outlet gas temperature to ensure the temperature is below the manufacturer's recommended operating temperature for controlling the VOC vapors routed to the device.(3) For a carbon adsorption system or carbon adsorber, as defined in §101.1 of this title (relating to Definitions), the owner or operator shall, as applicable:(A) continuously monitor the exhaust gas VOC concentration of a carbon adsorption system that regenerates the carbon bed directly to determine breakthrough, which for the purpose of this paragraph, is defined as a measured VOC concentration exceeding 100 ppmv above background expressed as methane; or(B) switch the vent gas flow to fresh carbon at a regular predetermined time interval for a carbon adsorber or carbon adsorption system that does not regenerate the carbon directly. The time interval must be less than the carbon replacement interval determined by the maximum design flow rate and the VOC concentration in the gas stream vented to the carbon adsorption system or carbon adsorber.(4) For a catalytic incinerator, the owner or operator shall continuously monitor the inlet and outlet gas temperature.(5) For a vapor recovery unit, the owner or operator shall continuously monitor at least one of the following operational parameters:(A) run-time of the compressor or motor in a vapor recovery unit;(B) total volume of recovered vapors; or(C) other parameters sufficient to demonstrate proper functioning to design specifications.(6) For a control device not listed in this subsection, the owner or operator shall continuously monitor one or more operational parameters sufficient to demonstrate proper functioning of the control device to design specifications.(g) The following inspection requirements apply to storage tanks subject to the control requirements in this division.(1) For an internal floating roof storage tank, the internal floating roof and the primary seal and the secondary seal (if one is in service) must be visually inspected through a fixed roof inspection hatch at least once every 12 months.(A) If the internal floating roof is not resting on the surface of the VOC inside the storage tank and is not resting on the leg supports; if liquid has accumulated on the internal floating roof; if the seal is detached; if there are holes or tears in the seal fabric; or if there are visible gaps between the seal and the wall of the storage tank, within 60 days of the inspection the owner or operator shall repair the items or shall empty and degas the storage tank in accordance with Subchapter F, Division 3 of this chapter (relating to Degassing of Storage Tanks, Transport Vessels, and Marine Vessels).(B) If a failure identified in subparagraph (A) of this paragraph cannot be repaired within 60 days and the storage tank cannot be emptied within 60 days, the owner or operator may submit written requests for up to two extensions of up to 30 additional days each to the appropriate regional office. The owner or operator shall submit a copy to any local air pollution control program with jurisdiction. Each request for an extension must include a statement that alternate storage capacity is unavailable and a schedule that will assure that the repairs will be completed as soon as possible.(2) For an external floating roof storage tank, the secondary seal gap must be physically measured at least once every 12 months to ensure compliance with §115.175 this title (relating to Storage Tank Control Requirements).(A) If the secondary seal gap exceeds the limitations specified by §115.175(d) of this title, within 60 days of the inspection the owner or operator shall repair the items or shall empty and degas the storage tank in accordance with Subchapter F, Division 3 of this chapter.(B) If a failure identified in subparagraph (A) of this paragraph cannot be repaired within 60 days and the storage tank cannot be emptied within 60 days, the owner or operator may submit written requests for up to two extensions of up to 30 additional days each to the appropriate regional office. The owner or operator shall submit a copy to any local air pollution control program with jurisdiction. Each request for an extension must include a statement that alternate storage capacity is unavailable and a schedule that will assure that the repairs will be completed as soon as possible.(3) If the storage tank is equipped with a mechanical shoe or liquid-mounted primary seal, compliance with §115.175 of this title can be determined by visual inspection.(4) For an external floating roof storage tank, the secondary seal must be visually inspected at least once every six months to ensure compliance with §115.175 of this title.(A) If the external floating roof is not resting on the surface of the VOC inside the storage tank and is not resting on the leg supports; if liquid has accumulated on the external floating roof; if the seal is detached; if there are holes or tears in the seal fabric; or if there are visible gaps between the seal and the wall of the storage tank, within 60 days of the inspection the owner or operator shall repair the items or shall empty and degas the storage tank in accordance with Subchapter F, Division 3 of this chapter.(B) If a failure identified in subparagraph (A) of this paragraph cannot be repaired within 60 days and the storage tank cannot be emptied within 60 days, the owner or operator may submit written requests for up to two extensions of up to 30 additional days each to the appropriate regional office. The owner or operator shall submit a copy to any local air pollution control program with jurisdiction. Each request for an extension must include a statement that alternate storage capacity is unavailable and a schedule that will assure that the repairs will be completed as soon as possible.(5) The owner or operator shall conduct an audio, visual, and olfactory inspection at least once per month, separated by at least 14 calendar days, of a control device used to control the VOC emissions from a storage tank.(6) The owner or operator shall inspect and repair all closure devices not connected to a control device according to the schedule in this paragraph.(A) The owner or operator shall conduct an audio, visual, and olfactory inspection of each closure device not connected to a vapor recovery unit or other vapor control device to ensure compliance with §115.175(a)(1)(A) of this title. The inspection must occur when liquids are not being added to or unloaded from the tank. If the owner or operator finds the closure device open for reasons not allowed in §115.175(a)(1)(A) of this title, the owner or operator shall attempt to close the device during the inspection. The inspection must occur before the end of one business day after each opening of a thief or access hatch for sampling or gauging, and before the end of one business day after each unloading event. If multiple events occur on a single day, a single inspection within one business day after the last event is sufficient.(B) Once per calendar quarter, the owner or operator shall conduct an audio, visual, and olfactory inspection of all gaskets and vapor sealing surfaces of each closure device not connected to a vapor recovery unit or other control device to ensure compliance with §115.175(a)(1)(B) of this title. If an improperly sealed closure device is found, the owner or operator shall follow repair requirements in accordance with §115.175(a)(1)(D) of this title. For the purpose of this subparagraph, a repair is complete if the closure device no longer exudes process gasses based on audio, visual, and olfactory means.(h) This section does not apply to fugitive emission components required to comply with §115.177 of this title (relating to Fugitive Emission Component Requirements).</content><note type="source"><p>Source Note: The provisions of this §115.178 adopted to be effective July 21, 2021, 46 TexReg 4313.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.179"><num value="115.179">§115.179</num><heading>Approved Test Methods and Testing Requirements</heading><content>(a) Compliance with the requirements in this division must be determined by applying the following test methods, as appropriate. (1) United States Environmental Protection Agency (EPA) Method 1 or 1A in 40 Code of Federal Regulations (CFR) Part 60, Appendix A-1 must be used to select sampling sites. The references to particulate sampling do not apply for purposes of using these methods in this division.(2) EPA Method 2, 2A, 2C, or 2D in 40 CFR Part 60, Appendix A-2 must be used to determine the gas volumetric flow rate.(3) EPA Method 3A or 3B, in 40 CFR Part 60, Appendix A-2, ASTM D6522-00 (Reapproved 2005), or American National Standards Institute/American Society of Mechanical Engineers Performance Test Codes (ANSI/ASME PTC) 19.10-1981, Part 10 (manual portion only) must be used to determine the oxygen concentration.(4) EPA Method 4 in 40 CFR Part 60, Appendix A-3 must be used for determining the stack gas moisture content.(5) EPA Method 18 in 40 CFR Part 60, Appendix A-6 must be used for determining the concentrations of methane and ethane.(6) EPA Method 21 in 40 CFR Part 60, Appendix A-7 must be used for determining volatile organic compound (VOC) leaks.(7) EPA Method 22 in 40 CFR Part 60, Appendix A-7, Section 11 must be used for determining visible emissions.(8) EPA Method 25A in 40 CFR Part 60, Appendix A-7 must be used for determining total gaseous organic concentrations using flame ionization.(9) Minor modifications to either test methods or monitoring methods may be approved by the executive director. Test methods other than those specified in paragraphs (1) - (8) of this subsection may be used if approved by the executive director and validated by EPA Method 301 (40 CFR Part 63, Appendix A). For the purposes of this paragraph, substitute "executive director" each place that EPA Method 301 references "administrator."(b) The following procedures must be used to demonstrate compliance with the control requirements in this division for a control device, other than a flare and routing to a process, and as appropriate.(1) The owner or operator of a combustion control device tested to comply with the 275 parts per million by volume (ppmv) outlet VOC limit shall establish a correlation between firebox or combustion chamber temperature and the VOC performance level. The owner or operator shall also establish minimum and maximum temperatures or other operating parameter that will be continuously monitored to demonstrate compliance with the control device requirements in this division.(2) The following testing requirements apply to control devices used to demonstrate compliance with the control requirements of this division. Each performance test must consist of a minimum of three test runs, and each run must be at least one hour long.(A) The owner or operator shall conduct an initial control device performance test by the compliance date in §115.183 of this title (relating to Compliance Schedules) using the test methods in this subsection.(B) The owner or operator shall conduct a periodic performance test no later than 60 months after the previous performance test. For any modification of a closed vent system, control device, or equipment regulated in this division that could reasonably be expected to decrease the control efficiency of the control device, such device must be retested within 60 days of the modification.(3) In lieu of periodic performance testing required in paragraph (2) of this subsection, the owner or operator may complete a design analysis to satisfy compliance with the control requirements of this division. The owner or operator shall determine through monitoring the parameters sufficient to determine proper functioning of the control device is met, as required in the monitoring requirements in §115.178(f) of this title (relating to Monitoring and Inspection Requirements).(A) For a vapor recovery unit or condenser, the design analysis criteria evaluated must include an analysis of the vent stream composition, speciated VOC concentrations, flowrate, relative humidity, and temperature. In addition, the design analysis must establish the design outlet VOC concentration level, design average temperature of the vapor recovery unit or condenser exhaust vent stream, and the design inlet and outlet average temperatures of the coolant fluid.(B) For a regenerable carbon adsorption system, a design analysis must include the design exhaust vent stream VOC concentration level, adsorption cycle time, number and capacity of carbon beds, type and working capacity of activated carbon used for the carbon beds, design total regeneration stream flow over the period of each complete carbon bed regeneration cycle, design carbon bed temperature after regeneration, design carbon bed regeneration time, and design service life of the carbon.(C) For a non-regenerable carbon adsorption system (such as a carbon canister), the design analysis must include the vent stream composition, VOC constituent concentrations, flowrate, relative humidity, and temperature, and must establish the design exhaust vent stream VOC level, capacity of the carbon bed, type and working capacity of activated carbon used for the carbon bed, and design carbon replacement interval based on the total carbon working capacity of the control device and source operating schedule. In addition, these systems must incorporate dual carbon canisters in case of emission breakthrough occurring in one canister.(D) For a combustion control device, other than a flare, the design analysis must identify each existing, or derived, control device design parameter including waste stream and supplemental fuel flowrates, mixing characteristics, composition, net heating value, combustion zone temperature, residence time, excess oxygen and relative humidity. The analysis must compare these control device design parameters with actual control device operating data, for a minimum of the prior two years, to ensure the control device is being operated as designed. A physical inspection of the combustion device is required as part of this analysis to assess whether equipment wear is present that will result a significant reduction in operating efficiency or require prompt maintenance.(4) In lieu of performing control device testing required in paragraph (2) of this subsection, the owner or operator may use data from a performance test conducted by the manufacturer on the same control device model that is used to comply with control requirements in this division. The owner or operator shall comply with the monitoring requirements in §115.178(f) of this title, and the data in the manufacturer's report must be sufficient to determine proper functioning of the control device as required in the monitoring requirements in §115.178(f) of this title.(A) The manufacturer's guarantee must demonstrate that the specific model of control device meets the 95% control efficiency required in the control requirements of this division.(B) The control device must be equipped with an inlet gas flow rate meter. Control devices, other than combustion control devices, must have a separate outlet gas flow rate meter.(C) The owner or operator of a control device model tested under this paragraph shall maintain the test report in accordance with §115.180 of this title (relating to Recordkeeping Requirements). The test report must include, but is not limited to, all information required under 40 CFR §60.5413a(d)(12) (as amended September 15, 2020 (85 FR 57447)) that is applicable to the test conducted.(c) The owner or operator shall calculate the control efficiency of a control device using the test results from subsection (b) of this section and the following procedure.(1) The owner or operator shall use EPA methods specified in subsection (a)(1) or (2) of this section to determine the flow rate of the inlet to outlet to determine the mass rate; EPA Method 25A in 40 CFR Part 60, Appendix A-7; EPA Method 4 in 40 CFR Part 60, Appendix A-3 (to convert the EPA Method 25A results to a dry basis); and equations 1 and 2 to calculate percent reduction efficiency to determine compliance with control device VOC reduction efficiency limits in this division.Attached Graphic(2) The owner or operator shall use EPA Method 25A in 40 CFR Part 60, Appendix A-7 to determine the exhaust gas concentration of total organic carbon in ppmv for the purpose of determining compliance with control device exhaust gas ppmv concentration limits in this division.(A) The owner or operator may elect to conduct EPA Method 18 sampling simultaneously with EPA Method 25A in 40 CFR Part 60, Appendix A-7 sampling to quantify methane and ethane concentrations and subtract the combined values to derive a total VOC ppmv concentration. If using this option, the owner or operator shall take either an integrated sample or a minimum of four grab samples per hour at approximately equal intervals in time, such as 15-minute intervals during the run.(B) The owner or operator shall use the emission rate correction factor for excess air, integrated sampling and analysis procedures of EPA Method 3A or 3B in 40 CFR Part 60, Appendix A-2; American Society for Testing and Materials (ASTM) D6522-00 (Reapproved 2005); or ANSI/ASME PTC 19.10-1981, Part 10 (manual portion only), to determine the oxygen concentration. The samples must be taken during the same time as the EPA Method 25A and EPA Method 18 samples. The owner or operator shall correct the VOC concentration for percent oxygen as provided in the following equation:Attached Graphic(3) The owner or operator of a combustion control device tested under subsection (b)(3)(C) of this section electing to comply with the 275 ppmv outlet limit in the control requirements of this division shall establish a correlation between firebox or combustion chamber temperature and the VOC emissions level. The owner or operator shall also establish minimum and maximum temperatures or other operating parameters that will be continuously monitored to demonstrate the VOC concentration is equal to or less than 275 ppmv as measured at the outlet of the device.(d) A flare used to comply with the control requirements in this division must meet the requirements of 40 CFR §60.18(b) - (f) (as amended through December 22, 2008 (73 FR 78209)).(e) The owner or operator of a control device, other than a flare or routing to a process, must perform a visible emissions test in accordance with EPA Method 22 in 40 CFR Part 60, Appendix A-7, Section 11 at least once every calendar month, separated by at least 15 days between each test. Devices failing the visible emissions test must comply with the following.(1) The owner or operator shall follow the manufacturer's repair instructions, if available, or best combustion engineering practices for any necessary repairs.(2) Upon returning to operation from maintenance or repair activity, each device must pass an EPA Method 22 visual observation test (40 CFR Part 60, Appendix A-7, Section 11) as described in this subsection.(3) The owner or operator shall operate a control device following the manufacturer's written operating instructions, procedures and maintenance schedule to ensure good air pollution control practices for minimizing emissions.(f) A control device for which a performance test is waived in accordance with 40 CFR §60.8(b) (as amended August 30, 2016 (81 FR 59809)) is exempt from the testing requirements of this section.</content><note type="source"><p>Source Note: The provisions of this §115.179 adopted to be effective July 21, 2021, 46 TexReg 4313.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.180"><num value="115.180">§115.180</num><heading>Recordkeeping Requirements</heading><content>Records required in this section must be maintained for five years onsite or at the nearest local field office and must be made available upon request to representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution control agency having jurisdiction in the area. Results must be made available for review within 24 hours.(1) The owner or operator shall maintain records of any operational parameter monitoring required in §115.178(f) of this title (relating to Monitoring and Inspection Requirements). Such records must be sufficient to demonstrate proper functioning of those devices to design specifications and must include, but are not limited to, the following.(A) For a direct-flame incinerator, the owner or operator shall continuously record the exhaust gas temperature immediately downstream of the device.(B) For a condensation system, the owner or operator shall continuously record the outlet gas temperature to ensure the temperature is below the manufacturer's recommended operating temperature for controlling the volatile organic compounds (VOC) vapors routed to the device.(C) For a carbon adsorption system or carbon adsorber, the owner or operator shall:(i) continuously record the exhaust gas VOC concentration of any carbon adsorption system monitored according to §115.178(f)(3)(A) of this title; or(ii) record the date and time of each switch between carbon containers and the method of determining the carbon replacement interval if the carbon adsorption system or carbon adsorber is switched according to §115.178(f)(3)(B) of this title.(D) For a catalytic incinerator, the owner or operator shall continuously record the inlet and outlet gas temperature.(E) For a vapor recovery unit, the owner or operator shall maintain records of the continuous operational parameter monitoring required in §115.178(f)(5) of this title.(F) For any other control device, the owner or operator shall maintain records of the continuous operational parameter monitoring required in §115.178(f)(6) of this title sufficient to demonstrate proper functioning of the control device to design specifications.(2) The owner or operator claiming an exemption in §115.172 of this title (relating to Exemptions) shall maintain records sufficient to demonstrate continuous compliance with the applicable exemption criteria.(3) The owner or operator shall maintain the results of any control device testing conducted in accordance with §115.179 of this title (relating to Approved Test Methods and Testing Requirements) including, at a minimum, the following information:(A) the date of each periodic performance test;(B) the test method(s) used to conduct the test;(C) the equipment type listed in §115.170 of this title (relating to Applicability) controlled by the device; and(D) the report showing the testing results of the control device.(4) Except for fugitive emission components, the owner or operator shall maintain records of the results of each inspection, monitoring survey other than monitoring specified in §115.178(f) of this title, and repair required in this division, including the following items:(A) the date of the inspection;(B) an identifier of each piece of leaking equipment;(C) the tag information required by the owner or operator in accordance with §115.178(d) of this title, if different than the information in subparagraph (B) of this paragraph;(D) the status of the cover or closure device during inspection;(E) the date on which attempts at repair, if necessary, were made, the date on which a repair was made, and an explanation of the reasons, if repair was delayed;(F) the equipment type and associated designation (e.g, difficult-to-monitor), if appropriate, listed in §115.170 of this title;(G) the amount of time a cover or closure device was open since the last inspection for reasons not allowed in the control requirements of §115.175 of this title (relating to Storage Tank Control Requirements);(H) screening concentration results from monitoring using a hydrocarbon analyzer; and(I) the results of monitoring following repair required in §115.178(b)(2)(A) or (e) of this title.(5) The owner or operator of a reciprocating compressor subject to §115.173(3)(D) or (E) of this title (relating to Compressor Control Requirements) shall document the following information to demonstrate compliance with the appropriate control requirement:(A) the continuously recorded number of hours the reciprocating compressor operated between each rod packing replacement, restarting the number of hours after the date of each replacement, as necessary; and(B) the date and time of each reciprocating compressor rod packing replacement and the number of months between each replacement, as necessary.(6) The owner or operator of a pneumatic device shall:(A) maintain records documenting that a control device does not exist onsite as of the appropriate date of compliance in §115.183 of this title (relating to Compliance Schedules) if complying with §115.174(e)(2) of this title (relating to Pneumatic Controller and Pump Control Requirements); and(B) maintain records documenting that maintenance is performed as required by §115.174(f) of this title.(7) The owner or operator shall maintain records of audio, visual, and olfactory inspections and monitoring surveys required for any fugitive emission component including the following:(A) instrument monitoring survey dates;(B) monitoring results;(C) a list of repairs needed, the date on which attempts at repair were made, explanation of the reasons for delay of repair, the date on which a repair was made, and unit shutdowns;(D) a list of fugitive emission components that are difficult-to-monitor and unsafe-to-monitor;(E) required electronic photos to document optical gas imaging monitoring surveys;(F) fugitive emission component monitoring plan required in §115.177(a) of this title (relating to Fugitive Emission Component Requirements);(G) documentation for wells with the volume of gas at standard temperature and pressure that is produced from a volume of oil when depressurized to standard temperature and pressure (i.e., a gas/oil ratio) of less than 300 standard cubic feet per stock barrel of crude oil produced; and(H) if using the alternative work practice in §115.358 of this title (relating to Alternative Work Practice), the records required by §115.356(4)(A) - (I) of this title (relating to Recordkeeping Requirements).(8) An owner or operator shall maintain a report with the information specified in this paragraph. Every five years from the previous completion date, the report information must be updated, as necessary, and maintained. The information must include, at a minimum, the following:(A) the regulated entity name and number, if a regulated entity number exists for the entity;(B) a description of and the identity of, which may include a clearly labeled diagram, each piece of equipment and fugitive emission component groupings;(C) the initial compliance status of each piece of equipment and fugitive emission component grouping, including functional needs for pneumatic controllers at a natural gas processing plant specified in §115.174(e)(4) of this title and technical infeasibility issues with controlling pneumatic pumps at a well site specified in §115.174(e)(5) of this title; and(D) an assessment and certification by the owner or operator that any closed vent system used to route emissions to a control device, including routing to a process, is of sufficient design and capacity to ensure that volatile organic compounds emissions are routed to the control device.</content><note type="source"><p>Source Note: The provisions of this §115.180 adopted to be effective July 21, 2021, 46 TexReg 4313.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.181"><num value="115.181">§115.181</num><heading>Reporting Requirements</heading><content>An owner or operator shall notify the appropriate Texas Commission on Environmental Quality regional office at least 45 days in advance and allow a representative of the executive director to witness the testing of a control device conducted in accordance with §115.179(c) of this title (relating to Approved Test Methods and Testing Requirements).</content><note type="source"><p>Source Note: The provisions of this §115.181 adopted to be effective July 21, 2021, 46 TexReg 4313.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scB/s115.183"><num value="115.183">§115.183</num><heading>Compliance Schedules</heading><content>(a) In the Dallas-Fort Worth and Houston-Galveston-Brazoria areas, the owner or operator of a piece of equipment that meets the applicability in §115.170 of this title (relating to Applicability) and is subject to a requirement of this division shall be in compliance as soon as practicable, but no later than January 1, 2023.(b) For an owner or operator in the Dallas-Fort Worth and Houston-Galveston-Brazoria areas subject to this division as of January 1, 2023, the recordkeeping required by §115.180(8) of this title (relating to Recordkeeping Requirements) must be completed no later than March 31, 2023.(c) An owner or operator who becomes subject to the requirements of this division on or after the date specified in the applicable subsection of this section shall comply with the requirements in this division no later than 60 days after becoming subject. Recordkeeping required under §115.180(8) of this title must be complied with no later than 30 days after compliance with the division is achieved.(d) The owner or operator of a storage tank in the Dallas-Fort Worth and Houston-Galveston-Brazoria areas subject to the requirements in Division 1 of this subchapter (relating to the Storage of Volatile Organic Compounds) shall remain subject to that division until compliance with the requirements in this division are achieved, but not later than January 1, 2023.(e) The owner or operator of a fugitive emission component at a natural gas processing plant in the Dallas-Fort Worth and Houston-Galveston-Brazoria areas as defined in §115.10 of this title (relating to Definitions), subject to the requirements of Subchapter D, Division 3 of this chapter (relating to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas) shall remain subject to that division until compliance with the requirements in this division are achieved, but not later than January 1, 2023.(f) Upon the date the owner or operator can no longer claim the exceptions in §115.174(e) of this title (relating to Pneumatic Controller and Pump Control Requirements), the owner or operator shall comply with the appropriate control requirement within 60 days.(g) The owner or operator of a piece of equipment in the Bexar County area subject to the requirements of this division shall comply with the requirements of this division no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §115.183 adopted to be effective July 21, 2021, 46 TexReg 4313; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c115/scC"><num value="C">SUBCHAPTER C</num><heading>VOLATILE ORGANIC COMPOUND TRANSFER OPERATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.211"><num value="115.211">§115.211</num><heading>Emission Specifications</heading><content>The owner or operator of each gasoline terminal in the covered attainment counties and in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), shall ensure that volatile organic compound (VOC) emissions from the vapor control system vent at gasoline terminals do not exceed the following rates:(1) in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, 0.09 pound per 1,000 gallons (10.8 mg/liter) of gasoline loaded into transport vessels.(2) in the covered attainment counties, as defined in §115.10 of this title (relating to Definitions), 0.17 pound per 1,000 gallons (20 mg/liter) of gasoline loaded into transport vessels.</content><note type="source"><p>Source Note: The provisions of this §115.211 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective December 2, 1999, 24 TexReg 10559; amended to be effective January 18, 2001,26TexReg493; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.212"><num value="115.212">§115.212</num><heading>Control Requirements</heading><content>(a) The owner or operator of each volatile organic compound (VOC) transfer operation, transport vessel, and marine vessel in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, shall comply with the following control requirements.(1) General VOC loading. At VOC loading operations other than gasoline terminals, gasoline bulk plants, and marine terminals, vapors from the transport vessel caused by the loading of VOC with a true vapor pressure greater than or equal to 0.5 psia under actual storage conditions must be controlled by:(A) a vapor control system which maintains a control efficiency of at least 90%; or(B) a vapor balance system, as defined in §115.10 of this title (relating to Definitions); or(C) pressurized loading.(2) Disposal of transported vapors. After unloading, transport vessels must be kept vapor-tight until the vapors in the transport vessel are returned to a loading, cleaning, or degassing operation and discharged in accordance with the control requirements of that operation.(3) Leak-free requirements. All land-based VOC transfer to or from transport vessels shall be conducted such that:(A) All liquid and vapor lines are:(i) equipped with fittings which make vapor-tight connections that close automatically when disconnected; or(ii) equipped to permit residual VOC after transfer is complete to discharge into a recovery or disposal system which routes all VOC emissions to a vapor control system or a vapor balance system. After VOC transfer, if necessary to empty a liquid line, the contents may be placed in a portable container, which is then closed vapor-tight and disposed of properly.(B) There are no VOC leaks, as defined in §101.1 of this title (relating to Definitions), when measured with a hydrocarbon gas analyzer, and no liquid or vapor leaks, as detected by sight, sound, or smell, from any potential leak source in the transport vessel and transfer system (including, but not limited to, liquid lines, vapor lines, hatch covers, pumps, and valves, including pressure relief valves).(C) All gauging and sampling devices are vapor-tight except for necessary gauging and sampling. Any nonvapor-tight gauging and/or sampling shall:(i) be limited in duration to the time necessary to practicably gauge and/or sample; and(ii) not occur while VOC is being transferred.(D) Any openings in a transport vessel during unloading are limited to minimum openings which are sufficient to prevent collapse of the transport vessel.(E) If VOC is loaded through the hatches of a transport vessel, then pneumatic, hydraulic, or other mechanical means shall force a vapor-tight seal between the loading arm's vapor collection adapter and the hatch. A means shall be provided which prevents liquid drainage from the loading device when it is removed from the hatch of any transport vessel, or which routes all VOC emissions to a vapor control system. After VOC transfer, if necessary to empty a liquid line, the contents may be placed in a portable container, which is then closed vapor-tight and disposed of properly.(4) Gasoline terminals. The following additional control requirements apply to the transfer of gasoline at gasoline terminals.(A) A vapor control system must be used to control the vapors from loading each transport vessel.(B) Vapor control systems and loading equipment at gasoline terminals shall be designed and operated such that gauge pressure does not exceed 18 inches of water and vacuum does not exceed six inches of water in the gasoline tank-truck.(C) Each gasoline terminal shall be equipped with sensors and other equipment designed and connected to monitor the status of the control device. If the control device malfunctions or is not operational, the system shall automatically stop gasoline transfer to the transport vessel(s) immediately.(D) As an alternative to subparagraph (C) of this paragraph, the following requirements apply to gasoline terminals which have a variable vapor space holding tank design that can process the vapors independent of transport vessel loading. Such gasoline terminals shall be equipped with sensors and other equipment designed and connected to monitor the status of the control device. If the variable vapor space holding tank serving the loading rack(s) does not have the capacity to store additional vapors for processing by the control device at a later time and the control device malfunctions or is not operational, the system shall automatically stop gasoline transfer to the transport vessel(s) immediately.(5) Gasoline bulk plants. The following additional control requirements apply to transfer of gasoline at gasoline bulk plants.(A) A vapor balance system must be used between the storage tank and transport vessel. Alternatively, a vapor control system which maintains a control efficiency of at least 90% may be used to control the vapors.(B) While filling a transport vessel from a storage tank:(i) the transport vessel, if equipped for top loading, must use a submerged fill pipe; and(ii) gauge pressure must not exceed 18 inches of water and vacuum must not exceed six inches of water in the gasoline tank-truck tank.(6) Marine terminals. The following control requirements apply to marine terminals in the Houston-Galveston-Brazoria area.(A) VOC emissions shall not exceed 0.09 pound from the vapor control system vent per 1,000 gallons (10.8 mg/liter) of VOC loaded into the marine vessel, or the vapor control system shall maintain a control efficiency of at least 90%. Alternatively, a vapor balance system or pressurized loading may be used to control the vapors.(B) Only leak-free marine vessels, as defined in §115.10 of this title, shall be used for loading operations.(C) All gauging and sampling devices shall be vapor-tight except for necessary gauging and sampling. Any nonvapor-tight gauging and/or sampling shall:(i) be limited in duration to the time necessary to practicably gauge and/or sample; and(ii) not occur while VOC is being transferred.(D) When non-dedicated loading lines are used to load VOC with a true vapor pressure less than 0.5 psia (or a flash point of 150 degrees Fahrenheit or greater) and the preceding transfer through these lines was VOC with a true vapor pressure equal to or greater than 0.5 psia, the residual VOC vapors from this preceding transfer must be controlled by the vapor control system, vapor balance system, or pressurized loading as specified in subparagraph (A) of this paragraph.(7) Once-in-always-in. Any loading or unloading operation that becomes subject to the provisions of this subsection by exceeding provisions of §115.217(a) of this title (relating to Exemptions) will remain subject to the provision of this subsection, even if throughput or emissions later fall below exemption limits unless and until emissions are reduced to no more than the controlled emissions level existing before implementation of the project by which throughput or emission rate was reduced to less than the applicable exemption limits in §115.217(a) of this title; and(A) the project by which throughput or emission rate was reduced is authorized by any permit or permit amendment or standard permit or permit by rule required by Chapter 116 or Chapter 106 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification; and Permits by Rule). If a permit by rule is available for the project, compliance with this subsection must be maintained for 30 days after the filing of documentation of compliance with that permit by rule; or(B) if authorization by permit, permit amendment, standard permit, or permit by rule is not required for the project, the owner/operator has given the executive director 30 days' notice of the project in writing.(b) The owner or operator of each land-based VOC transfer operation and transport vessel in the covered attainment counties as defined by §115.10 of this title (relating to Definitions) shall comply with the following control requirements.(1) General VOC loading in Aransas, Bexar, Calhoun, Gregg, Matagorda, Nueces, San Patricio, Travis, and Victoria Counties. The requirements of this paragraph no longer apply in Bexar County beginning January 1, 2025. At VOC loading operations other than gasoline terminals and gasoline bulk plants, vapors from the transport vessel caused by the loading of VOC with a true vapor pressure greater than or equal to 1.5 psia under actual storage conditions must be controlled by:(A) a vapor control system which maintains a control efficiency of at least 90%;(B) a vapor balance system, as defined in §115.10 of this title; or(C) pressurized loading.(2) Disposal of transported vapors. After unloading, transport vessels must be kept vapor-tight until the vapors in the transport vessel are returned to a loading, cleaning, or degassing operation and discharged in accordance with the control requirements of that operation.(3) Leak-free requirements. All land-based VOC transfer to or from transport vessels shall be conducted such that:(A) all liquid and vapor lines are:(i) equipped with fittings which make vapor-tight connections and that close automatically when disconnected; or(ii) equipped to permit residual VOC after transfer is complete to discharge into a recovery or disposal system which routes all VOC emissions to a vapor control system or a vapor balance system. After VOC transfer, if necessary to empty a liquid line, the contents may be placed in a portable container, which is then closed vapor-tight and disposed of properly.(B) there are no VOC leaks, as defined in §101.1 of this title, when measured with a hydrocarbon gas analyzer, and no liquid or vapor leaks, as detected by sight, sound, or smell, from any potential leak source in the transport vessel and transfer system (including, but not limited to, liquid lines, vapor lines, hatch covers, pumps, and valves, including pressure relief valves);(C) all gauging and sampling devices are vapor-tight except for necessary gauging and sampling. Any nonvapor-tight gauging and/or sampling shall:(i) be limited in duration to the time necessary to practicably gauge and/or sample; and(ii) not occur while VOC is being transferred;(D) any openings in a transport vessel during unloading are limited to minimum openings which are sufficient to prevent collapse of the transport vessel;(E) if VOC is loaded through the hatches of a transport vessel, then pneumatic, hydraulic, or other mechanical means shall force a vapor-tight seal between the loading arm's vapor collection adapter and the hatch. A means shall be provided which prevents liquid drainage from the loading device when it is removed from the hatch of any transport vessel, or which routes all VOC emissions to a vapor control system. After VOC transfer, if necessary to empty a liquid line, the contents may be placed in a portable container, which is then closed vapor-tight and disposed of properly.(4) Gasoline terminals. The following additional control requirements apply to gasoline transfer at gasoline terminals.(A) A vapor control system must be used to control the vapors from loading the transport vessel.(B) Vapor control systems and loading equipment at gasoline terminals shall be designed and operated such that gauge pressure does not exceed 18 inches of water and vacuum does not exceed six inches of water in the gasoline tank-truck.(C) Each gasoline terminal shall be equipped with sensors and other equipment designed and connected to monitor the status of the control device. If the control device malfunctions or is not operational, the system shall automatically stop gasoline transfer to the transport vessel(s) immediately.(D) As an alternative to subparagraph (C) of this paragraph, the following requirements apply to gasoline terminals which have a variable vapor space holding tank design that can process the vapors independent of transport vessel loading. Such gasoline terminals shall be equipped with sensors and other equipment designed and connected to monitor the status of the control device. If the variable vapor space holding tank serving the loading rack(s) does not have the capacity to store additional vapors for processing by the control device at a later time and the control device malfunctions or is not operational, the system shall automatically stop gasoline transfer to the transport vessel(s) immediately.(5) Gasoline bulk plants. The following additional control requirements apply to gasoline transfer at gasoline bulk plants.(A) A vapor balance system must be used between the storage tank and transport vessel. Alternatively, a vapor control system which maintains a control efficiency of at least 90% may be used to control the vapors.(B) While filling a transport vessel from a storage tank:(i) the transport vessel, if equipped for top loading, must use a submerged fill pipe; and(ii) gauge pressure must not exceed 18 inches of water and vacuum must not exceed six inches of water in the gasoline tank-truck tank.</content><note type="source"><p>Source Note: The provisions of this §115.212 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3719; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective June 16, 1995, 20 TexReg 4048; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective July 21, 1999, 24 TexReg 5488; amendedto be effective December 2, 1999, 24 TexReg 10559; amended to be effective January 18, 2001, 26 TexReg 493; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.213"><num value="115.213">§115.213</num><heading>Alternate Control Requirements</heading><content>(a) Alternate means of control. Alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division (relating to Loading and Unloading of Volatile Organic Compounds) may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.(b) General volatile organic compound (VOC) loading--90% overall control option in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas. As an alternative to §115.212(a)(1) of this title (relating to Control Requirements), VOC loading operations other than gasoline terminals, gasoline bulk plants, and marine terminals may elect to achieve a 90% overall control of emissions at the account from the loading of VOC (excluding loading into marine vessels and loading at gasoline terminals and gasoline bulk plants) with a true vapor pressure equal to or greater than 0.5 psia, but less than 11 psia, under actual storage conditions, provided that the following requirements are met.(1) To qualify for the control option available under this subsection after December 31, 1996, the owner or operator of a VOC loading operation for which a control plan was not previously submitted shall submit a control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall control of emissions at the account from the loading of VOC with a true vapor pressure greater than or equal to 0.5 psia, but less than 11 psia, under actual storage conditions will be at least 90%. Any control plan submitted after December 31, 1996, must be approved by the executive director before the owner or operator may use the control option available under this subsection for compliance. For each loading rack and any associated control device at the account, the control plan shall include the emission point number (EPN), the facility identification number (FIN), the throughput of VOC with a true vapor pressure greater than or equal to 0.5 psia, but less than 11 psia, under actual storage conditions for the preceding calendar year, a plot plan showing the location, EPN, and FIN of each loading rack and any associated control device, the controlled and uncontrolled emission rates for the preceding calendar year, and an explanation of the recordkeeping procedure and calculations which will be used to demonstrate compliance.(2) The owner or operator of the VOC loading operation shall submit an annual report no later than March 31 of each year to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall control of emissions at the account from the loading of VOC with a true vapor pressure greater than or equal to 0.5 psia, but less than 11 psia, under actual storage conditions during the preceding calendar year is at least 90%. For each loading rack and any associated control device at the account, the report shall include the EPN, the FIN, the throughput of VOC with a true vapor pressure greater than or equal to 0.5 psia, but less than 11 psia, under actual storage conditions for the preceding calendar year, a plot plan showing the location, EPN, and FIN of each loading rack and any associated control device, and the controlled and uncontrolled emission rates for the preceding calendar year.(3) The owner or operator of the VOC loading operation shall submit an updated report no later than 30 days after the installation of an additional loading rack(s) or any change in service of a loading rack(s) from loading VOC with a true vapor pressure less than 0.5 psia to loading VOC with a true vapor pressure greater than or equal to 0.5 psia, or vice versa. The report shall be submitted to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction and shall demonstrate that the overall control of emissions at the account from the loading of VOC with a true vapor pressure greater than or equal to 0.5 psia, but less than 11 psia, under actual storage conditions continues to be at least 90%.(4) All representations in control plans and annual reports become enforceable conditions. It shall be unlawful for any person to vary from such representations if the variation will cause a change in the identity of the specific emission sources being controlled or the method of control of emissions unless the owner or operator of the VOC loading operation submits a revised control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction no later than 30 days after the change. All control plans and reports shall demonstrate that the overall control of emissions at the account from the loading of VOC with a true vapor pressure greater than or equal to 0.5 psia, but less than 11 psia, under actual storage conditions continues to be at least 90%. The emission rates shall be calculated in a manner consistent with the most recent emissions inventory.(5) The loading of VOC with a true vapor pressure greater than or equal to 11 psia under actual storage conditions must be controlled by:(A) pressurized loading;(B) a vapor control system which maintains a control efficiency of at least 90%; or(C) a vapor balance system, as defined in §115.10 of this title (relating to Definitions).(6) A VOC loading operation which, under the 90% control option of this subsection, is not required to control vapors caused by loading VOC into a transport vessel is likewise not required to comply with:(A) §115.212(a)(3)(A) and (C) of this title; or(B) §115.214(a)(1)(A)(ii) and (iii) and (C) of this title (relating to Inspection Requirements).(c) General VOC loading--90% overall control option in Aransas, Bexar, Calhoun, Gregg, Matagorda, Nueces, San Patricio, Travis, and Victoria counties. This control option is no longer available in Bexar County beginning January 1, 2025. As an alternative to §115.212(b)(1) of this title, VOC loading operations other than gasoline terminals, gasoline bulk plants, and marine terminals may elect to achieve a 90% overall control of emissions at the account from the loading of VOC (excluding loading into marine vessels and loading at gasoline terminals and gasoline bulk plants) with a true vapor pressure greater than or equal to 1.5 psia, but less than 11 psia, under actual storage conditions.(1) Each VOC loading operation using this control option shall meet the requirements of subsection (b)(1)-(5) of this section, except that 1.5 psia shall be substituted for 0.5 psia in these paragraphs.(2) A VOC loading operation which, under the 90% control option of this subsection, is not required to control vapors caused by loading VOC into a transport vessel is likewise not required to comply with:(A) §115.212(b)(3)(A) and (C) of this title; or(B) §115.214(b)(1)(A)(ii) and (iii) and (C) of this title.(d) Marine vessel loading--90% control option. As an alternative to §115.212(a)(6)(A) of this title, marine terminals may elect to achieve a 90% overall control of emissions at the marine terminal from the loading of VOC with a true vapor pressure greater than or equal to 0.5 psia, but less than 11 psia, under actual storage conditions into marine vessels, provided that the following requirements are met.(1) To qualify for the control option available under this subsection after December 31, 1996, the owner or operator of a marine terminal for which a control plan was not previously submitted shall submit a control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall control of emissions at the marine terminal from the loading of VOC with a true vapor pressure greater than or equal to 0.5 psia, but less than 11 psia, under actual storage conditions into marine vessels will be at least 90%. Any control plan submitted after December 31, 1996 must be approved by the executive director before the owner or operator may use the control option available under this subsection for compliance. For each marine loading facility and any associated control device at the marine terminal, the control plan shall include the EPN, the FIN, the throughput of VOC with a true vapor pressure greater than or equal to 0.5 psia, but less than 11 psia, under actual storage conditions for the preceding calendar year, a plot plan showing the location, EPN, and FIN of each marine loading facility and any associated control device, the controlled and uncontrolled emission rates for the preceding calendar year, and an explanation of the recordkeeping procedure and calculations which will be used to demonstrate compliance.(2) The owner or operator of the marine terminal shall submit an annual report no later than March 31 of each year to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction which demonstrates that the overall control of emissions at the marine terminal from the loading of VOC with a true vapor pressure greater than or equal to 0.5 psia, but less than 11 psia, under actual storage conditions into marine vessels during the preceding calendar year is at least 90%. For each marine loading facility and any associated control device at the account, the report shall include the EPN, the FIN, the throughput of VOC with a true vapor pressure greater than or equal to 0.5 psia, but less than 11 psia, under actual storage conditions for the preceding calendar year, a plot plan showing the location, EPN, and FIN of each marine loading facility and any associated control device, and the controlled and uncontrolled emission rates for the preceding calendar year.(3) All representations in control plans and annual reports become enforceable conditions. It shall be unlawful for any person to vary from such representations if the variation will cause a change in the identity of the specific emission sources being controlled or the method of control of emissions unless the owner or operator of the marine terminal submits a revised control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction no later than 30 days after the change. All control plans and reports shall demonstrate that the overall control of emissions at the marine terminal from the loading into marine vessels of VOC with a true vapor pressure greater than or equal to 0.5 psia, but less than 11 psia, under actual storage conditions continues to be at least 90%. The emission rates shall be calculated in a manner consistent with the most recent emissions inventory.(4) The loading of VOC with a true vapor pressure greater than 11 psia under actual storage conditions must be controlled by:(A) pressurized loading;(B) a vapor control system which maintains a control efficiency of at least 90%; or(C) a vapor balance system, as defined in §115.10 of this title.(5) A marine loading operation which, under the 90% control option of this subsection, is not required to control vapors caused by loading VOC into a marine vessel is likewise not required to comply with:(A) §115.212(a)(6)(B)-(D) of this title; or(B) §115.214(a)(3)(A), (B)(ii) and (iii), and (D) of this title.</content><note type="source"><p>Source Note: The provisions of this §115.213 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective June 16, 1995, 20 TexReg 4048; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.214"><num value="115.214">§115.214</num><heading>Inspection Requirements</heading><content>(a) The owner or operator of each volatile organic compound (VOC) transfer operation in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, Houston-Galveston-Brazoria areas, shall comply with the following inspection requirements.(1) Land-based VOC transfer to or from transport vessels.(A) During each VOC transfer, the owner or operator of the transfer operation or of the transport vessel shall inspect for:(i) visible liquid leaks;(ii) visible fumes; and(iii) significant odors.(B) VOC loading or unloading through the affected transfer lines shall be discontinued immediately when a leak is observed and shall not be resumed until the observed leak is repaired.(C) All tank-truck tanks being filled with or emptied of gasoline, or being filled with non-gasoline VOC having a true vapor pressure greater than or equal to 0.5 pounds per square inch absolute under actual storage conditions, shall have been leak tested within one year in accordance with the requirements of §§115.234 - 115.237 of this title (relating to Control of Volatile Organic Compound Leaks From Transport Vessels) as evidenced by prominently displayed certification affixed near the United States Department of Transportation certification plate.(D) Subparagraphs (A) and (B) of this paragraph do not apply to fumes from hatches or vents if the fumes result from:(i) a VOC transfer which is exempt from §115.211 or §115.212(a)(1) of this title (relating to Emission Specifications; and Control Requirements) under §115.217(a) of this title (relating to Exemptions); or(ii) a VOC loading operation which, under the 90% control option in §115.213(b) of this title (relating to Alternate Control Requirements), is not required to control vapors caused by loading VOC.(2) Gasoline terminals-additional inspection. The owner or operator of each gasoline terminal shall perform a monthly leak inspection of all equipment in gasoline service. Each piece of equipment shall be inspected during the loading of gasoline tank-trucks. For this inspection, detection methods incorporating sight, sound, and smell are acceptable. Alternatively, a hydrocarbon gas analyzer may be used for the detection of leaks, by meeting the requirements of §§115.352 - 115.357 of this title (relating to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas). Every reasonable effort shall be made to repair or replace a leaking component within 15 days after a leak is found. If the repair or replacement of a leaking component would require a unit shutdown, the repair may be delayed until the next scheduled shutdown.(3) Marine terminals. For marine terminals in the Houston-Galveston-Brazoria area, the following inspection requirements apply.(A) Before loading a marine vessel with a VOC which has a vapor pressure equal to or greater than 0.5 pounds per square inch absolute under actual storage conditions, the owner or operator of the marine terminal shall verify that the marine vessel has passed an annual vapor tightness test as specified in §115.215(7) of this title (relating to Approved Test Methods). If no documentation of the annual vapor tightness test is available, one of the following methods may be substituted.(i) VOC shall be loaded into the marine vessel with the vessel product tank at negative gauge pressure.(ii) Leak testing shall be performed during loading using Test Method 21. The testing shall be conducted during the final 20% of loading of each product tank of the marine vessel and shall be applied to any potential sources of vapor leaks on the vessel.(iii) Documentation of leak testing conducted during the preceding 12 months as described in clause (ii) of this subparagraph shall be provided.(B) During each VOC transfer, the owner or operator of the marine terminal or of the marine vessel shall inspect for:(i) visible liquid leaks;(ii) visible fumes; and(iii) significant odors.(C) If a liquid leak is detected during VOC transfer and cannot be repaired immediately (for example, by tightening a bolt or packing gland), then the transfer operation shall cease until the leak is repaired.(D) If a vapor leak is detected by sight, sound, smell, or hydrocarbon gas analyzer during the VOC loading operation, then a "first attempt" shall be made to repair the leak. VOC loading operations need not be ceased if the first attempt to repair the leak, as defined in §101.1 of this title (relating to Definitions), to less than 10,000 parts per million by volume (ppmv) or 20% of the lower explosive limit, is not successful provided that the first attempt effort is documented by the owner or operator of the marine vessel as soon as practicable and a copy of the repair log made available to a representative of the marine terminal. No additional loadings shall be made into the cargo tank until a successful repair has been completed and an inspection conducted under 40 Code of Federal Regulations 61.304(f) or 63.565(c).(E) The intentional bypassing of a vapor control device during marine loading operations is prohibited.(F) All shore-based equipment is subject to the fugitive emissions monitoring requirements of §§115.352 - 115.357 of this title. For the purposes of this paragraph, shore-based equipment includes, but is not limited to, all equipment such as loading arms, pumps, meters, shutoff valves, relief valves, and other piping and valves between the marine loading facility and the vapor control system and between the marine loading facility and the associated land-based storage tanks, excluding working emissions from the storage tanks.(G) Subparagraphs (B) and (D) of this paragraph do not apply to fumes from hatches or vents if the fumes result from:(i) a VOC transfer which is exempt from §115.212(a)(6)(A) of this title under §115.217(a)(5) of this title; or(ii) a VOC loading operation which, under the 90% control option in §115.213(d) of this title, is not required to control vapors caused by loading VOC.(b) The owner or operator of each VOC transfer operation in the covered attainment counties as defined in §115.10 of this title (relating to Definitions) shall comply with the following inspection requirements.(1) Land-based VOC transfer to or from transport vessels. The requirements of this paragraph apply at VOC transfer operations in Aransas, Bexar, Calhoun, Gregg, Matagorda, Nueces, San Patricio, Travis, and Victoria Counties, and at gasoline terminals and gasoline bulk plants in the covered attainment counties. These requirements no longer apply in Bexar County beginning January 1, 2025.(A) During each VOC transfer, the owner or operator of the transfer operation or of the transport vessel shall inspect for:(i) visible liquid leaks;(ii) visible fumes; and(iii) significant odors.(B) VOC loading or unloading through the affected transfer lines shall be discontinued immediately when a leak is observed and shall not be resumed until the observed leak is repaired.(C) All tank-truck tanks being filled with or emptied of gasoline shall have been leak tested within one year in accordance with the requirements of §§115.234 - 115.237 of this title as evidenced by prominently displayed certification affixed near the United States Department of Transportation certification plate.(D) Subparagraphs (A) and (B) of this paragraph do not apply to fumes from hatches or vents if the fumes result from:(i) a VOC transfer which is exempt from §115.211 or §115.212(b)(1) of this title under §115.217(b) of this title; or(ii) a VOC loading operation which, under the 90% control option in §115.213(c) of this title, is not required to control vapors caused by loading VOC.(2) Gasoline terminals-additional inspection. The owner or operator of each gasoline terminal shall perform a monthly leak inspection of all equipment in gasoline service. Each piece of equipment shall be inspected during the loading of gasoline tank-trucks. For this inspection, detection methods incorporating sight, sound, and smell are acceptable. Alternatively, a hydrocarbon gas analyzer may be used for the detection of leaks, by meeting the requirements of §§115.352 - 115.357 of this title. Every reasonable effort shall be made to repair or replace a leaking component within 15 days after a leak is found. If the repair or replacement of a leaking component would require a unit shutdown, the repair may be delayed until the next scheduled shutdown.</content><note type="source"><p>Source Note: The provisions of this §115.214 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective June 16, 1995, 20 TexReg 4048; amended to be effective August 16, 1996, 21 TexReg 7557; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective May 16, 2002, 27 TexReg 4113;amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.215"><num value="115.215">§115.215</num><heading>Approved Test Methods</heading><content>Compliance with the emission specifications, vapor control system efficiency, and certain control requirements, inspection requirements, and exemption criteria of §§115.211 - 115.214 and 115.217 of this title (relating to Emission Specifications, Control Requirements, Alternate Control Requirements, Inspection Requirements, and Exemptions) must be determined by applying one or more of the following test methods and procedures, as appropriate.(1) Flow rate. Test Methods 1-4 (40 Code of Federal Regulations (CFR) Part 60, Appendix A) are used for determining flow rates, as necessary.(2) Concentration of volatile organic compounds (VOC).(A) Test Method 18 (40 CFR Part 60, Appendix A) is used for determining gaseous organic compound emissions by gas chromatography.(B) Test Method 25 (40 CFR Part 60, Appendix A) is used for determining total gaseous nonmethane organic emissions as carbon.(C) Test Methods 25A or 25B (40 CFR Part 60, Appendix A) are used for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis.(3) Performance requirements for flares and vapor combustors.(A) For flares, the performance test requirements of 40 CFR §60.18(b) apply.(B) For vapor combustors, the owner or operator may consider the unit to be a flare and meet the performance test requirements of 40 CFR §60.18(b) rather than the procedures of paragraphs (1) and (2) of this section.(C) Compliance with the requirements of 40 CFR §60.18(b) will be considered to demonstrate compliance with the emission specifications and control efficiency requirements of §115.211 and §115.212 of this title.(4) Vapor pressure. Use standard reference texts or ASTM International Test Methods D323-89, D2879, D4953, D5190, D5191, or D6377 for the measurement of vapor pressure. For the purposes of temperature correction, the owner or operator shall use the actual storage temperature. Actual storage temperature of an unheated tank or vessel may be determined using either the measured temperature or the maximum local monthly average ambient temperature as reported by the National Weather Service. Actual storage temperature of a heated tank or vessel must be determined using either the measured temperature or the temperature set point of the tank or vessel.(5) Leak determination by instrument method. Use Test Method 21 (40 CFR Part 60, Appendix A) for determining VOC leaks.(6) Gasoline terminal test procedures. Use the additional test procedures described in 40 CFR §60.503(b) - (d) (February 14, 1989), for pre-test leak determination, emission specifications test for vapor control systems, and pressure limit in transport vessel.(7) Vapor-tightness test procedures for marine vessels. Use 40 CFR §63.565(c) (September 19, 1995) or 40 CFR §61.304(f) (October 17, 2000) for determination of marine vessel vapor tightness.(8) Flash point. Use ASTM Test Method D93 for the measurement of flash point.(9) Minor modifications. Minor modifications to these test methods may be used, if approved by the executive director.(10) Alternate test methods. Test methods other than those specified in paragraphs (1) - (8) of this section may be used if validated by 40 CFR Part 63, Appendix A, Test Method 301. For the purposes of this paragraph, substitute "executive director" each place that Test Method 301 references "administrator."</content><note type="source"><p>Source Note: The provisions of this §115.215 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3719; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective June 16, 1995, 20 TexReg 4048; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective July 21, 1999, 24 TexReg 5488;amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective June 25, 2015, 40 TexReg 3907.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.216"><num value="115.216">§115.216</num><heading>Monitoring and Recordkeeping Requirements</heading><content>The owner or operator of each volatile organic compound (VOC) loading or unloading operation in the covered attainment counties or in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, shall maintain the following information for at least two years at the plant, as defined by its air quality account number. The owner or operator shall make the information available upon request to representatives of the executive director, EPA, or any local air pollution control agency having jurisdiction in the area.(1) Vapor control systems. For vapor control systems used to control emissions from VOC transfer operations, records of appropriate parameters to demonstrate compliance, including:(A) continuous monitoring and recording of:(i) the exhaust gas temperature immediately downstream of a direct-flame incinerator;(ii) the inlet and outlet gas temperature of a chiller or catalytic incinerator;(iii) the exhaust gas VOC concentration of a carbon adsorption system, as defined in §101.1 of this title (relating to Definitions); and(iv) the exhaust gas temperature immediately downstream of a vapor combustor. Alternatively, the owner or operator of a vapor combustor may consider the unit to be a flare and meet the requirements of subparagraph (B) of this paragraph;(B) the requirements specified in 40 Code of Federal Regulations §60.18(b) and Chapter 111 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter) for flares; and(C) for vapor control systems other than those specified in subparagraphs (A) and (B) of this paragraph, records of appropriate operating parameters.(2) Test results. A record of the results of any testing conducted in accordance with §115.215 of this title (relating to Approved Test Methods).(3) Land-based VOC transfer to or from transport vessels.(A) A daily record of:(i) the identification number of each tank-truck tank for which annual leak testing is required under §115.214(a)(1)(C) or (b)(1)(C) of this title (relating to Inspection Requirements);(ii) the quantity of VOC loaded into each transport vessel; and(iii) the date of the last leak testing of each tank-truck tank as required by §115.214(a)(1)(C) or (b)(1)(C) of this title.(B) A record of the type and vapor pressure of each VOC transferred (excluding gasoline). Vapor pressure records are not required if the total volume of VOC loaded into transport vessels is less than 20,000 gallons per day (averaged over each consecutive 30-day period).(C) The owner or operator of any plant, as defined by its air quality account number, at which all VOC transferred has a true vapor pressure at actual storage conditions less than 0.5 pounds per square inch, absolute (psia) as specified in §115.217(a)(1) of this title (relating to Exemptions) or 1.5 psia as specified in §115.217(b)(1) of this title, is not required to keep the records specified in subparagraph (A) of this paragraph.(D) The owner or operator of any plant, as defined by its air quality account number, that is exempt under §115.217(a)(2)(A) or (B), or §115.217(b)(3)(A) or (B) of this title based upon gallons per day transferred shall maintain a daily record of the total throughput of gasoline or of VOC equal to or greater than 0.5 or 1.5 psia vapor pressure, as appropriate, loaded into transport vessels at the plant.(E) For gasoline terminals, records of the results of the fugitive monitoring and maintenance program required by §115.214(a)(2) and (b)(2) of this title:(i) a description of the types, identification numbers, and locations of all equipment in gasoline service;(ii) the date of each monthly inspection;(iii) the results of each inspection;(iv) the location, nature, severity, and method of detection for each leak;(v) the date each leak is repaired and explanation if repair is delayed beyond 15 days;(vi) a list identifying those leaking components which cannot be repaired or replaced until a scheduled unit shutdown; and(vii) the inspector's name and signature.(4) Marine terminals. For marine terminals in the Houston-Galveston-Brazoria area:(A) a daily record of all marine vessels loaded at the affected terminal, including:(i) the name, registry of the marine vessel, and the legal owner or operator of the marine vessel;(ii) the chemical name and amount of VOC cargo loaded; and(iii) the conditions of the tanks prior to being loaded (i.e., cleaned, crude oil washed, gas freed, etc.) and the prior cargo carried by the marine vessel;(B) a copy of each marine vessel's vapor tightness test documentation or records documenting compliance with the alternate methods specified in §115.214(a)(3)(A) of this title;(C) a copy of each marine vessel's first attempt repair log required by §115.214(a)(3)(D) of this title;(D) records of the results of the fugitive monitoring and maintenance program required by §115.214(a)(3)(F) of this title, including appropriate dates, test methods, instrument readings, repair results, and corrective action taken. Records of flange inspections are not required unless a leak is detected.</content><note type="source"><p>Source Note: The provisions of this §115.216 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3719; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective June 16, 1995, 20 TexReg 4048; amended to be effective August 16, 1996, 21 TexReg 7557; amended to be effective May 22,1997, 22 TexReg 4213; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective January 18, 2001, 26 TexReg 493; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.217"><num value="115.217">§115.217</num><heading>Exemptions</heading><content>(a) The following exemptions apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas.(1) Vapor pressure (at land-based operations). All land-based loading and unloading (to or from transport vessels) of volatile organic compounds (VOC) with a true vapor pressure less than 0.5 pounds per square inch, absolute (psia) under actual storage conditions is exempt from the requirements of this division (relating to Loading and Unloading of Volatile Organic Compounds), except for:(A) §115.212(a)(2) of this title (relating to Control Requirements);(B) §115.214(a)(1)(A)(i) and (B) of this title (relating to Inspection Requirements);(C) §115.215(4) of this title (relating to Approved Test Methods); and(D) §115.216(2) and (3)(B) of this title (relating to Monitoring and Recordkeeping Requirements).(2) Throughput.(A) Loading operations at any plant, as defined by its air quality account number, excluding gasoline bulk plants, which loads less than 20,000 gallons of VOC into transport vessels per day (averaged over each consecutive 30-day period) with a true vapor pressure greater than or equal to 0.5 psia under actual storage conditions are exempt from the requirements of this division, except for:(i) §115.212(a)(2) of this title;(ii) §115.214(a)(1)(A)(i) and (B) of this title;(iii) §115.215(4) of this title; and(iv) §115.216(2), (3)(B), and (3)(D) of this title.(B) Gasoline bulk plants which load less than 4,000 gallons of gasoline into transport vessels per day (averaged over each consecutive 30-day period) are exempt from the requirements of this division, except for:(i) §115.212(a)(2) of this title;(ii) §115.214(a)(1)(A)(i) and (B) of this title; and(iii) §115.216(3)(D) of this title.(3) Liquefied petroleum gas. All loading and unloading of liquefied petroleum gas is exempt from the requirements of this division, except for:(A) §115.212(a)(2) of this title;(B) §115.214(a)(1)(A)(i) and (B) of this title; and(C) §115.216(3) of this title.(4) Motor vehicle fuel dispensing facilities. Motor vehicle fuel dispensing facilities, as defined in §101.1 of this title (relating to Definitions), are exempt from the requirements of this division.(5) Marine vessels. The following marine vessel transfer exemptions apply.(A) The following marine vessel transfer operations are exempt from this division:(i) all loading and unloading of marine vessels in ozone nonattainment areas other than the Houston-Galveston-Brazoria area; and(ii) transfer of VOC from one marine vessel to another marine vessel ("lightering"), provided that the VOC transfer does not use loading arm(s), pump(s), meter(s), valve(s), or piping that are part of a marine terminal.(B) The following marine vessel transfer operations are exempt from the requirements of §§115.212(a), 115.214(a), and 115.216 of this title, except as noted:(i) all unloading of marine vessels, except for §115.214(a)(3)(B)(i) and (C) and §115.216(2) of this title;(ii) marine terminals with uncontrolled marine loading VOC emissions less than 100 tons per year, except for §115.214(a)(3)(B)(i) and (C) and §115.216(2) of this title. Emissions from marine vessel loading operations which were routed to a control device that was installed as of November 15, 1993, are excluded from this calculation. Compliance with this exemption shall be demonstrated through the recordkeeping and reporting requirements of the annual emissions inventory submitted by the owner or operator of the marine terminal;(iii) all throughput of VOC with a vapor pressure less than 0.5 psia loaded into marine vessels, except for §§115.212(a)(6)(D), 115.214(a)(3)(B)(i) and (C), and 115.216(2) of this title; and(iv) all throughput of VOC with a flash point of 150 degrees Fahrenheit or greater loaded into marine vessels, except for §§115.212(a)(6)(D), 115.214(a)(3)(B)(i) and (C), and 115.216(2) of this title.(b) The following exemptions apply in the covered attainment counties as defined in 115.10 of this title (relating to Definitions).(1) General VOCs (non-gasoline). Except in Aransas, Bexar, Calhoun, Gregg, Matagorda, Nueces, San Patricio, Travis, and Victoria Counties, all loading and unloading of VOC other than gasoline (to or from transport vessels) is exempt from the requirements of this division. This exception no longer applies in Bexar County after December 31, 2024.(2) Vapor pressure (at land-based operations). All land-based loading and unloading of VOC with a true vapor pressure less than 1.5 psia under actual storage conditions is exempt from the requirements of this division, except for:(A) §115.212(b)(2) of this title;(B) §115.214(b)(1)(A)(i) and (B) of this title;(C) §115.215(4) of this title; and(D) §115.216(2) and (3)(B) of this title.(3) Throughput.(A) Loading operations at any plant, as defined by its air quality account number, excluding gasoline bulk plants, which loads less than 20,000 gallons of VOC into transport vessels per day (averaged over each consecutive 30-day period) with a true vapor pressure greater than or equal to 1.5 psia under actual storage conditions are exempt from the requirements of this division, except for:(i) §115.212(b)(2) of this title;(ii) §115.214(b)(1)(A)(i) and (B) of this title;(iii) §115.215(4) of this title; and(iv) §115.216(2), (3)(B), and (3)(D) of this title.(B) Gasoline bulk plants which load less than 4,000 gallons of gasoline into transport vessels per day (averaged over each consecutive 30-day period) are exempt from the requirements of this division, except for:(i) §115.212(b)(2) of this title;(ii) §115.214(b)(1)(A)(i) and (B) of this title; and(iii) §115.216(3)(D) of this title.(4) Crude oil, condensate, and liquefied petroleum gas. All loading and unloading of crude oil, condensate, and liquefied petroleum gas is exempt from the requirements of this division, except for:(A) §115.212(b)(2) of this title;(B) §115.214(b)(1)(A)(i) and (B) of this title; and(C) §115.216(3) of this title.(5) Motor vehicle fuel dispensing facilities. Motor vehicle fuel dispensing facilities, as defined in §101.1 of this title, are exempt from the requirements of this division.(6) Marine vessels. All loading and unloading of marine vessels is exempt from this division.</content><note type="source"><p>Source Note: The provisions of this §115.217 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective June 16, 1995, 20 TexReg 4048; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective November 13, 2003, 28 TexReg 9835; amendedto be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.219"><num value="115.219">§115.219</num><heading>Counties and Compliance Schedules</heading><content>(a) In Aransas, Bexar, Brazoria, Calhoun, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Gregg, Hardin, Harris, Jefferson, Liberty, Matagorda, Montgomery, Nueces, Orange, San Patricio, Tarrant, Travis, Victoria, and Waller Counties, the compliance date has passed and the owner or operator of each volatile organic compound (VOC) transfer operation shall continue to comply with this division. Bexar County is only subject to this division's covered attainment requirements in accordance with this compliance schedule until January 1, 2025, when the area must comply with nonattainment area requirements in accordance with subsection (f) of this section and is no longer required to meet the covered attainment requirements.(b) In the covered attainment counties, as defined in §115.10 of this title (relating to Definitions), the compliance date has passed and the owner or operator of each gasoline bulk plant shall continue to comply with this division.(c) In the covered attainment counties, as defined in §115.10 of this title, the compliance date has passed and the owner or operator of each gasoline terminal shall continue to comply with this division.(d) The owner or operator of each gasoline terminal, gasoline bulk plant, or VOC transfer operation in Ellis, Johnson, Kaufman, Parker, and Rockwall Counties shall comply with this division as soon as practicable, but no later than March 1, 2009.(e) The owner or operator of each gasoline terminal, gasoline bulk plant, or VOC transfer operation in Wise County shall comply with this division as soon as practicable, but no later than January 1, 2017. The owner or operator of each gasoline terminal or gasoline bulk plant in Wise County shall continue to comply with the applicable requirements in §§115.211(2), 115.212(b), and 115.214(b) of this title (relating to Emission Specifications; Control Requirements; and Inspection Requirements) until the facility achieves compliance with the applicable requirements in §§115.211(1), 115.212(a), and 115.214(a) of this title.(f) The owner or operator of each VOC transfer operation, transport vessel, and marine vessel in the Bexar County area shall be in compliance with the nonattainment area requirements in this division no later than January 1, 2025.(g) The owner or operator of an affected source that becomes subject to the requirements of this division on or after the applicable compliance date in this section, shall be in compliance with the requirements in this division as soon as practicable, but no later than 60 days after becoming subject.</content><note type="source"><p>Source Note: The provisions of this §115.219 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3719; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective January 27, 1995, 20 TexReg 221; amended to be effective June 16, 1995, 20 TexReg 4048; amended to be effective March 7, 1996,21TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective December 2, 1999, 24 TexReg 10559; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective October 20, 2005, 30 TexReg 6738; amended to be effective December 7, 2006, 31 TexReg 9840; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.221"><num value="115.221">§115.221</num><heading>Emission Specifications</heading><content>No person in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, or in the covered attainment counties, as defined in §115.10 of this title (relating to Definitions), shall transfer, or allow the transfer of, gasoline from any tank-truck tank into a stationary storage container which is located at a gasoline dispensing facility, unless the displaced vapors from the gasoline storage container are controlled by one of the following:(1) a vapor control system which reduces the emissions of VOC to the atmosphere to not more than 0.8 pound per 1,000 gallons (93 mg/liter) of gasoline transferred; or(2) a vapor balance system which is operated and maintained in accordance with the provisions of §115.222 of this title (relating to Control Requirements).</content><note type="source"><p>Source Note: The provisions of this §115.221 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective October 2, 2014, 39 TexReg 7745; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.222"><num value="115.222">§115.222</num><heading>Control Requirements</heading><content>A vapor balance system will be assumed to comply with the specified emission limitation of §115.221 of this title (relating to Emission Specifications) if all of the following conditions are met.(1) The container is equipped with a submerged fill pipe as defined in §101.1 of this title (relating to Definitions). The path through the submerged fill pipe to the bottom of the tank must not be obstructed by a screen, grate, or similar device whose presence would preclude the determination of the submerged fill pipe's proximity to the tank bottom while the submerged fill tube is properly installed.(2) A vapor-tight return line is connected before gasoline can be transferred into the storage container.(3) No avoidable gasoline leaks, as detected by sight, sound, or smell, exist anywhere in the liquid transfer or vapor balance systems.(4) The vapor return line's cross-sectional area is at least one-half of the product drop line's cross-sectional area.(5) In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas and in the covered attainment counties, as defined in §115.10 of this title (relating to Definitions), the only atmospheric emission during gasoline transfer into the storage container is through a storage container vent line equipped with a pressure-vacuum relief valve set to open at a pressure of no more than eight ounces per square inch (3.4 kiloPascals (kPa)).(6) After unloading, the tank-truck tank is kept vapor-tight until the vapors in the tank-truck tank are returned to a loading, cleaning, or degassing operation and discharged in accordance with the control requirements of that operation.(7) The gauge pressure in the tank-truck tank does not exceed 18 inches of water (4.5 kPa) or vacuum exceed six inches of water (1.5 kPa).(8) No leak, as defined in §101.1 of this title, exists from potential leak sources when measured with a hydrocarbon gas analyzer.(9) In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, any storage tank installed after November 15, 1993, which is required to install Stage I control equipment must be equipped with a dual-point vapor balance system, as defined in §115.10 of this title. In addition, any modification to a storage tank existing prior to November 15, 1993, requiring excavation of the top of the storage tank must be equipped with a dual-point vapor balance system, even if the original installation utilized coaxial Stage I connections.(10) In the covered attainment counties, any storage tank installed after December 22, 1998, which is required to install Stage I control equipment must be equipped with a dual-point vapor balance system, as defined in §115.10 of this title. In addition, any modification to a storage tank existing prior to December 22, 1998, requiring excavation of the top of the storage tank must be equipped with a dual-point vapor balance system, even if the original installation utilized coaxial Stage I connections. The control requirements in this paragraph no longer apply to affected storage tanks located in the Bexar County area beginning January 1, 2025.(11) Any gasoline dispensing facility that no longer meets an exemption in §115.227 of this title (relating to Exemptions) because of an increase in throughput shall have 120 days to come into compliance with the provisions of this section and will remain subject to the provisions of this section, even if its gasoline throughput later falls below exemption limits. However, if gasoline throughput exceeds the exemption limit due to a natural disaster or emergency condition for a period not to exceed one month, upon written request, the executive director may grant a facility continued exempt status.</content><note type="source"><p>Source Note: The provisions of this §115.222 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3720; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective April 13, 2005, 30 TexReg 2069; amended to be effective October 2, 2014, 39 TexReg 7745; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.223"><num value="115.223">§115.223</num><heading>Alternate Control Requirements</heading><content>Alternate methods of complying with §115.222 of this title (relating to Control Requirements) may be approved by the executive director if:(1) emission reductions are demonstrated to be equivalent or greater than those afforded by the requirements in §115.222 of this title; and(2) the Stage I vapor recovery system is capable of meeting the applicable performance requirements prescribed in this division (relating to Filling of Gasoline Storage Vessels (Stage I) for Motor Vehicle Fuel Dispensing Facilities), as certified by third-party evaluation conducted by a qualified independent testing organization using a code or standard of practice, acceptable to the executive director, which has been developed by a nationally recognized agency, association, or independent testing laboratory.</content><note type="source"><p>Source Note: The provisions of this §115.223 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective April 13, 2005, 30 TexReg 2069.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.224"><num value="115.224">§115.224</num><heading>Inspection Requirements</heading><content>In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, and in the covered attainment counties, as defined in §115.10 of this title (relating to Definitions), the following inspection requirements shall apply.(1) Inspections for liquid leaks, visible vapors, or significant odors resulting from gasoline transfer shall be conducted at gasoline dispensing facilities. Gasoline transfer shall be discontinued immediately when any liquid leaks, visible vapors, or significant odors are observed and shall not be resumed until the observed issue is repaired.(2) The gasoline tank-truck tank must have been inspected for leaks within one year in accordance with the requirements of §§115.234 - 115.237 of this title (relating to Inspection Requirements; Approved Test Methods; Recordkeeping Requirements; and Exemptions, respectively), as evidenced by a prominently displayed certification affixed near the United States Department of Transportation certification plate.</content><note type="source"><p>Source Note: The provisions of this §115.224 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective November 1, 1991, 16 TexReg 5838; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective October 2, 2014, 39 TexReg 7745; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.225"><num value="115.225">§115.225</num><heading>Testing Requirements</heading><content>Compliance with the emission specification and certain control requirements and inspection requirements of §§115.221, 115.222 and 115.224 of this title (relating to Emission Specifications; Control Requirements; and Inspection Requirements) shall be determined according to the requirements of 40 Code of Federal Regulations (CFR) §63.11120. Additionally, all affected gasoline dispensing facilities are required to annually comply with the following testing requirements found in 40 CFR §63.11120:(1) California Air Resources Board Vapor Recovery Test Procedure TP 201.1E - Leak Rate and Cracking Pressure of Pressure/Vacuum Vent Valves.(2) California Air Resources Board Vapor Recovery Test Procedure TP-201.3 - Determination of 2-Inch WC Static Pressure Performance of Vapor Recovery Systems of Dispensing Facilities.(3) Alternate test methods other than those specified in paragraphs (1) - (2) of this section may be used if validated by 40 CFR §63.7(f).</content><note type="source"><p>Source Note: The provisions of this §115.225 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective October 2, 2014, 39 TexReg 7745.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.226"><num value="115.226">§115.226</num><heading>Recordkeeping Requirements</heading><content>The owner or operator of each gasoline dispensing facility in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, and in the covered attainment counties, as defined in §115.10 of this title (relating to Definitions) shall maintain the following records and during an inspection make the records available at the site upon request to representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution control program with jurisdiction. The owner or operator shall:(1) maintain a record at the facility site of the dates on which gasoline was delivered to the dispensing facility and the identification number and date of the last leak testing, required by §115.224(2) of this title (relating to Inspection Requirements), of each tank-truck tank from which gasoline was transferred to the facility. The records shall be kept for a period of two years; and(2) maintain for a period of two years:(A) a record of the results of any testing conducted at the gasoline dispensing facility in accordance with the provisions specified in §115.225 of this title (relating to Testing Requirements); and(B) a record of the gasoline throughput for a 24-month rolling calendar period beginning January 1, 1991. The records must contain the calendar month and year, and the total facility gasoline throughput for each calendar month.</content><note type="source"><p>Source Note: The provisions of this §115.226 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective October 2, 2014, 39 TexReg 7745; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.227"><num value="115.227">§115.227</num><heading>Exemptions</heading><content>The following exemptions apply:(1) In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, transfers to stationary storage tanks located at a gasoline dispensing facility which has dispensed no more than 10,000 gallons of gasoline in any calendar month after January 1, 1991, and for which construction began prior to November 15, 1992, are exempt from the requirements of this division, except for:(A) §115.222(3) of this title (relating to Control Requirements) as it applies to liquid gasoline leaks, visible vapors, or significant odors;(B) §115.222(6) of this title;(C) §115.224(1) of this title (relating to Inspection Requirements) as it applies to liquid gasoline leaks, visible vapors, or significant odors; and(D) §115.226(2)(B) of this title (relating to Recordkeeping Requirements).(2) In the covered attainment counties, as defined in §115.10 of this title (relating to Definitions), stationary gasoline storage containers with a nominal capacity less than or equal to 1,000 gallons at gasoline dispensing facilities are exempt from the requirements of this division, except for:(A) §115.222(3) of this title as it applies to liquid gasoline leaks, visible vapors, or significant odors;(B) §115.222(6) of this title; and(C) §115.224(1) of this title as it applies to liquid gasoline leaks, visible vapors, or significant odors.(3) Except as specified in paragraph (6) of this section, in the covered attainment counties other than Bexar, Comal, Guadalupe, Wilson, Bastrop, Caldwell, Hays, Travis, and Williamson, transfers to stationary storage tanks located at a gasoline dispensing facility which has dispensed less than 100,000 gallons of gasoline in any calendar month after October 31, 2014 are exempt from the requirements of this division, except for:(A) §115.222(3) of this title as it applies to liquid gasoline leaks, visible vapors, or significant odors;(B) §115.222(6) of this title;(C) §115.224(1) of this title as it applies to liquid gasoline leaks, visible vapors, or significant odors; and(D) §115.226(2)(B) of this title.(4) In Bexar County until January 1, 2025, and in Comal, Guadalupe, Wilson, Bastrop, Caldwell, Hays, Travis, and Williamson Counties, transfers to stationary storage tanks located at a gasoline dispensing facility which has dispensed no more than 25,000 gallons of gasoline in any calendar month after December 31, 2004 are exempt from the requirements of this division, except for:(A) §115.222(3) of this title as it applies to liquid gasoline leaks, visible vapors, or significant odors;(B) §115.222(6) of this title;(C) §115.224(1) of this title as it applies to liquid gasoline leaks, visible vapors, or significant odors; and(D) §115.226(2)(B) of this title.(5) Transfers to the following stationary receiving containers are exempt from the requirements of this division:(A) containers used exclusively for the fueling of implements of agriculture; and(B) storage tanks equipped with external floating roofs, internal floating roofs, or their equivalent.(6) Bexar County is no longer a covered attainment county, as defined in §115.10 of this title (relating to Definitions), after December 31, 2024.</content><note type="source"><p>Source Note: The provisions of this §115.227 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective November 27, 2002, 27 TexReg 10935; amended to be effective December 9, 2004, 29 TexReg 11360; amended to be effective October 2, 2014, 39 TexReg 7745; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.229"><num value="115.229">§115.229</num><heading>Counties and Compliance Schedules</heading><content>(a) The owner or operator of each gasoline dispensing facility in the Beaumont-Port Arthur, El Paso, and Houston-Galveston-Brazoria areas and in Collin, Dallas, Denton, and Tarrant Counties shall continue to comply with this division as required by §115.930 of this title (relating to Compliance Dates).(b) The owner or operator of each gasoline dispensing facility in the covered attainment counties, as defined in §115.10 of this title (relating to Definitions), shall continue to comply with this division as required by §115.930 of this title.(c) The owner or operator of each gasoline dispensing facility in Bexar, Comal, Guadalupe, Wilson, Bastrop, Caldwell, Hays, Travis, and Williamson Counties that has dispensed at least 25,000 gallons of gasoline but less than 125,000 gallons of gasoline in any calendar month after December 31, 2004 shall comply with this division as soon as practicable, but no later than December 31, 2005. Affected sources in Bexar County are no longer subject to this subsection beginning January 1, 2025.(d) The owner or operator of each gasoline dispensing facility in Ellis, Johnson, Kaufman, Parker, and Rockwall Counties that has dispensed at least 10,000 gallons of gasoline but less than 125,000 gallons of gasoline in any calendar month after April 30, 2005, shall comply with this division as soon as practicable, but no later than June 15, 2007.(e) The owner or operator of each gasoline dispensing facility in Wise County shall continue to comply with the requirements applicable to covered attainment counties, as defined in §115.10 of this title, until the facility achieves compliance with the requirements applicable to the Dallas-Fort Worth area, as defined in §115.10 of this title. The owner or operator shall comply with the requirements applicable to the Dallas-Fort Worth area as soon as practicable, but no later than January 1, 2017.(f) The owner or operator of each affected source in the Bexar County area shall comply with all other applicable requirements of this division as soon as practicable, but no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §115.229 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3720; amended to be effective November 1, 1991, 16 TexReg 5838; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective December 9, 2004, 29 TexReg11360;amended to be effective May 5, 2005, 30 TexReg 2522; amended to be effective October 2, 2014, 39 TexReg 7745; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.234"><num value="115.234">§115.234</num><heading>Inspection Requirements</heading><content>(a) No person in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), shall allow a tank-truck tank to be filled with or emptied of gasoline at any facility subject to §115.214(a)(1)(C) or §115.224(2) of this title (relating to Inspection Requirements; and Inspection Requirements), or filled with non-gasoline volatile organic compounds (VOC) having a true vapor pressure greater than or equal to 0.5 pounds per square inch absolute under actual storage conditions at any facility subject to §115.214(a)(1)(C) of this title, unless the tank-truck tank has passed a leak-tight test within the past year as evidenced by a prominently displayed certification affixed near the United States Department of Transportation certification plate which:(1) shows the date the tank-truck tank last passed the leak-tight test required by §115.235 of this title (relating to Approved Test Methods); and(2) shows the identification number of the tank-truck tank.(b) No person in the covered attainment counties, as defined in §115.10 of this title, shall allow a gasoline tank-truck tank to be filled or emptied at any facility subject to §115.214(b)(1)(C) or §115.224(2) of this title unless the tank-truck tank has passed a leak-tight test within the past year as evidenced by a prominently displayed certification affixed near the United States Department of Transportation certification plate which:(1) shows the date the gasoline tank-truck tank last passed the leak-tight test required by §115.235 of this title; and(2) shows the identification number of the tank-truck tank.</content><note type="source"><p>Source Note: The provisions of this §115.234 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.235"><num value="115.235">§115.235</num><heading>Approved Test Methods</heading><content>(a) In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, the following testing requirements apply.(1) The owner or operator of any tank-truck which is filled with or emptied of gasoline at any facility subject to §115.214(a)(1)(C) or §115.224(2) of this title (relating to Inspection Requirements; and Inspection Requirements), or which is filled with non-gasoline volatile organic compounds (VOC) at any facility subject to §115.214(a)(1)(C) of this title shall cause each such tank to be tested annually to ensure that the tank is vapor-tight.(2) Any tank failing to meet the testing criteria of paragraph (1) of this subsection shall be repaired and retested within 15 days.(3) Testing required in paragraph (1) of this subsection shall be conducted in accordance with the following test methods, as appropriate:(A) Test Method 27 (40 Code of Federal Regulations (CFR) 60, Appendix A) for determining vapor-tightness of gasoline delivery tank using pressure-vacuum test such that the pressure in the tank must change no more than three inches of water (0.75 kPa) in five minutes when pressurized to a gauge pressure of 18 inches of water (4.5 kPa) and when evacuated to a vacuum of six inches of water (1.5 kPa); or(B) minor modifications to these test methods approved by the executive director.(4) For tank-truck tanks which are filled with non-gasoline VOC at a facility subject to §115.214(a)(1)(C) of this title, annual testing using the leakage test method described in 49 CFR 180.407(h) for specification cargo tanks is an acceptable alternative to Test Method 27 (40 CFR 60, Appendix A).(b) In the covered attainment counties, the following testing requirements shall apply.(1) The owner or operator of any tank-truck which is filled or emptied at any facility subject to §115.214(b)(1)(C) or §115.224(2) of this title shall cause each such tank to be tested annually to ensure that the tank is vapor-tight.(2) Any tank failing to meet the testing criteria of paragraph (1) of this subsection shall be repaired and retested within 15 days.(3) Testing required in paragraph (1) of this subsection shall be conducted in accordance with the following test methods, as appropriate:(A) Test Method 27 (40 CFR 60, Appendix A) for determining vapor tightness of gasoline delivery tank using pressure-vacuum test such that the pressure in the tank must change no more than three inches of water (0.75 kPa) in five minutes when pressurized to a gauge pressure of 18 inches of water (4.5 kPa) and when evacuated to a vacuum of six inches of water (1.5 kPa); or(B) minor modifications to these test methods approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.235 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.236"><num value="115.236">§115.236</num><heading>Recordkeeping Requirements</heading><content>The following recordkeeping requirements shall apply:(1) The owner or operator of each tank-truck subject to this division (relating to Control of Volatile Organic Compound Leaks from Transport Vessels) shall maintain records of all certification testing and repairs. The records must be maintained for at least two years after the date the testing or repair was completed.(2) The record of each Test Method 27 certification test required by paragraph (1) of this section shall, at a minimum, contain:(A) company name;(B) date and location of the test;(C) name and title of person conducting the test;(D) tank identification number;(E) initial test pressure and the time of the reading;(F) final test pressure and the time of the reading;(G) initial test vacuum and the time of the reading; and(H) final test vacuum and the time of the reading.(3) Records of each leakage test conducted under §115.235(a)(4) of this title (relating to Approved Test Methods) shall be maintained as specified in 49 Code of Federal Regulations 180.417.(4) Copies of all records required by this section shall be made available for review upon request by representatives of the executive director, EPA, or any local air pollution control agency with jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §115.236 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective July 21, 1999, 24 TexReg 5488.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.237"><num value="115.237">§115.237</num><heading>Exemptions</heading><content>(a) The following exemptions apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas.(1) Any tank-truck tank which is used exclusively to transport volatile organic compounds (VOC) with a true vapor pressure less than 0.5 pounds per square inch absolute under actual storage conditions is exempt from the requirements of this division (relating to Control of Volatile Organic Compound Leaks From Transport Vessels).(2) Transport vessels other than tank-trucks are exempt from the requirements of this division.(3) Any tank-truck tank that is a portable tank, as defined in 49 Code of Federal Regulations 171.8, is exempt from the requirements of this division.(b) In the covered attainment counties, transport vessels other than tank-trucks are exempt from the requirements of this division.</content><note type="source"><p>Source Note: The provisions of this §115.237 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.239"><num value="115.239">§115.239</num><heading>Counties and Compliance Schedules</heading><content>(a) In Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery, Orange, Tarrant, and Waller Counties, the compliance date has passed and the owner or operator of each tank-truck tank shall continue to comply with this division.(b) In the covered attainment counties, as defined in §115.10 of this title (relating to Definitions), the compliance date has passed and the owner or operator of each gasoline tank-truck tank shall continue to comply with this division.(c) The owner or operator of each tank-truck tank in Ellis, Johnson, Kaufman, Parker, and Rockwall Counties shall comply with this division as soon as practicable, but no later than March 1, 2009.(d) The owner or operator of each tank-truck tank in Wise County shall comply with this division as soon as practicable, but no later than January 1, 2017. The owner or operator of each gasoline tank-truck tank in Wise County shall continue to comply with the applicable requirements in §115.234(b) and §115.235(b) of this title (relating to Inspection Requirements and Approved Test Methods) until the facility achieves compliance with the newly applicable requirements in §115.234(a) and §115.235(a) of this title.(e) The owner or operator of each tank-truck in the Bexar County area shall comply with the applicable requirements of this division as soon as practicable, but no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §115.239 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3721; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective July 21, 1999, 24 TexReg 5488; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective December 7, 2006, 31 TexReg 9840; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.240"><num value="115.240">§115.240</num><heading>Stage II Vapor Recovery Definitions and List of California Air Resources Board Certified Stage II Equipment</heading><content>(a) The following words and terms, when used in this division, have the following meanings, unless the context clearly indicates otherwise. Additional definitions for terms used in this division are found in §§115.10, 101.1, and 3.2 of this title (relating to Definitions). (1) Decommission--The permanent removal of the Stage II vapor control equipment at a gasoline dispensing facility. (2) Gasoline dispensing facility--A location that dispenses gasoline to motor vehicles and includes retail, private, and commercial outlets. (3) Major system replacement or modification: (A) the repair or replacement of any stationary storage tank equipped with a Stage II vapor recovery system; (B) the replacement of an existing California Air Resources Board (CARB) certified Stage II vapor recovery system with a system certified by CARB under a different CARB Executive Order, or certified by an approved third-party; (C) the repair or replacement of any part of a piping system attached to a stationary storage tank equipped with a Stage II vapor recovery system, excluding the repair or replacement of piping which is accessible for such repair or replacement without excavation or modification of the vapor recovery equipment; or (D) the replacement of at least one fuel dispenser. (4) Onboard refueling vapor recovery--A system on motor vehicles designed to recover hydrocarbon vapors that escape during refueling. (5) Onboard refueling vapor recovery compatible--A Stage II vapor recovery system certified by CARB or other acceptable independent third-party evaluator, using test methods approved by the executive director, as onboard refueling vapor recovery (ORVR) compatible or a system listed in subsection (b) of this section, either of which maintains a required minimum overall system efficiency of 95% (as certified under third-party evaluation) while dispensing fuel without difficulty to both ORVR-equipped and non ORVR-equipped vehicles. (6) Owner or operator of a motor vehicle fuel dispensing facility--Any person who owns, leases, operates, or controls the gasoline dispensing facility. (b) The table contained in this subsection is a list of the Stage II vapor recovery systems certified by a CARB Executive Order in effect as of January 1, 2002. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §115.240 adopted to be effective January 18, 2001, 26 TexReg 493; amended to be effective November 27, 2002, 27 TexReg 10935; amended to be effective April 13, 2005, 30 TexReg 2069; amended to be effective October 31, 2013, 38 TexReg 7453.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.241"><num value="115.241">§115.241</num><heading>Decommissioning of Stage II Vapor Recovery Equipment</heading><content>(a) The owner or operator of a gasoline dispensing facility may decommission Stage II vapor recovery equipment beginning 30-calendar days after the effective date of the United States Environmental Protection Agency's approval of the repeal of the Stage II vapor recovery requirement and adoption of decommissioning requirements, in compliance with the requirements of this section. (b) Owners or operators of gasoline dispensing facilities decommissioning Stage II vapor recovery equipment shall comply with the following: (1) Intent to decommission notification. (A) The owner or operator of a gasoline dispensing facility shall submit written notification of intent to decommission the Stage II vapor recovery equipment at least 30-calendar days prior to the beginning of any decommissioning activity to the appropriate Texas Commission on Environmental Quality (TCEQ) regional office and local government with jurisdiction where the gasoline dispensing facility is located. (B) The notice of intent to decommission must provide a projected start date for decommissioning activity at the gasoline dispensing facility location. If decommissioning activities are not initiated within 180 calendar days after the date the notice of intent to decommission is received by the TCEQ, the owner or operator of the gasoline dispensing facility shall re-file the notice of intent to decommission for the gasoline dispensing facility location. (C) The notice of intent to decommission must include the following information: (i) gasoline dispensing facility name and location address; (ii) owner name, address, and phone number; (iii) operator name, address, and phone number; (iv) on-site supervisor contractor name, address, phone number, and Class A or Class A/B Underground Storage Contractor License number; and (v) Stage II vapor recovery system information including the vapor recovery system manufacturer, the California Air Resources Board Executive Order for the system, or other information necessary to identify the system. (2) Start of decommissioning notification. The owner or operator shall also provide notification 24 to 72 hours prior to the beginning of any decommissioning activity by either telephone, e-mail, or facsimile, to the appropriate TCEQ regional office and local government with jurisdiction. The notification must include: (A) the gasoline dispensing facility name and location address; (B) owner name, address, and phone number; (C) operator name, address, and phone number; and (D) planned decommissioning start date. (3) Required decommissioning activities. The owner or operator of the gasoline dispensing facility shall perform and complete all of the following decommissioning activities, as applicable for the particular Stage II vapor recovery system equipment installed at the gasoline dispensing facility: (A) initiating safety procedures; (B) relieving pressure in the tank ullage by removing all pressure/vacuum vent valves; (C) draining all liquid collection points; (D) disconnecting all electrical components of the Stage II system so that no electrical hazards are created including but not limited to all vapor pumping or processing units and dispenser electronics; (E) reprogramming the dispenser electronics to reflect that Stage II Vapor Recovery is no longer in service; (F) securely sealing off the below-grade vapor piping at a height below the level of the base of the dispenser using only threaded plugs, threaded caps, or glued fittings; (G) disconnecting and sealing off the vapor piping at the tank top if this can be done without excavation and without interfering with the vent line using only threaded plugs, threaded caps, or glue fittings; (H) securely sealing the lower end of the vapor piping inside the dispenser cabinet using only threaded plugs, threaded caps, or glue fittings; (I) replace through attrition or by August 31, 2018, the Stage II hanging hardware including hoses, nozzles, swivels, and breakaway components with conventional, industry-standard hanging hardware; (J) installing appropriate pressure/vacuum vent valve(s); (K) removing any Stage II instructions from the dispenser cabinet; (L) visually inspecting and verifying that the visible components of the storage system are left in a condition that will reliably prevent the release of any vapors or liquids from any components of the storage system; (M) conducting the Texas test procedures TXP-102 (Vapor Recovery Test Procedures Handbook, RG-399, December 2002) and recording results on Form 102 indicating that the storage system is in a condition that will prevent leaking of vapors or liquids prior to restoring the facility to operating status; (N) conducting the Texas test procedures TXP-103, Procedure 2, (Vapor Recovery Test Procedures Hand Book, RG-399, December 2002) recording results on Form 103 indicating that the vent lines are functioning in a condition that will prevent the leaking of vapors or liquids prior to restoring the facility to operating status; (O) disconnecting the OPW VaporSavor or Arid Permeater vapor recovery systems if they are present on the Stage II system and sealing piping using only threaded plugs, threaded caps, or glue fittings; and (P) disconnecting the central vacuum motor if present on the Stage II system and sealing piping using only threaded plugs, threaded caps, or glue fittings. (4) Decommissioning completion notice. The owner or operator of the gasoline dispensing facility shall notify in writing the TCEQ regional office and local government with jurisdiction where the gasoline dispensing facility is located no later than ten calendar days after completion of all decommissioning activity at the gasoline dispensing facility. Notification must include: (A) gasoline dispensing facility name and location address; (B) owner name, address, and phone number; (C) operator name, address, and phone number; (D) a certified and signed document with the name, address, and the Class A or Class A/B license number of the on-site supervisor who directed the decommissioning; (E) name, address, and the Class A or Class A/B license number of the on-site supervisor who directed the testing to ensure that no leaks have been detected; and (F) copies TX-102 and TX-103 Procedure test results. (c) The owner or operator shall comply with the following decommissioning deadlines. (1) The owner or operator shall complete all decommissioning activity at a gasoline dispensing facility location within 30 calendar days after the date decommissioning activity was initiated. (2) Owners or operators of all gasoline dispensing facilities, regardless of location in the state, shall have completed the decommissioning of all Stage II vapor recovery control equipment no later than August 31, 2018.</content><note type="source"><p>Source Note: The provisions of this §115.241 adopted to be effective October 31, 2013, 38 TexReg 7453.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.242"><num value="115.242">§115.242</num><heading>Control Requirements</heading><content>(a) After May 16, 2012, the owner or operator of a newly constructed gasoline dispensing facility is no longer required to install Stage II vapor controls on its gasoline dispensing equipment in any county in the state of Texas. Gasoline dispensing facilities that did not have Stage II vapor controls as of May 16, 2012, due to a confirmed exemption because of low monthly throughput or low average monthly throughput are not subject to the requirements of this division.(b) The owner or operator of every gasoline dispensing facility that has installed Stage II vapor controls shall complete decommissioning of Stage II vapor controls no later than August 31, 2018.(c) All owners or operators of gasoline dispensing facilities decommissioning installed Stage II vapor controls shall comply with the requirements of §115.241 of this title (relating to Decommissioning of Stage II Vapor Recovery Equipment).(d) Until the owner or operator of a gasoline dispensing facility decommissions Stage II vapor recovery controls that are installed at the gasoline dispensing facility, the owner or operator shall be subject to the following requirements of this section as well as the requirements of this division.(1) All installed Stage II vapor recovery systems must be certified by a California Air Resources Board (CARB) Executive Order in effect as of January 1, 2002, (as specified in §115.240(b) of this title (relating to Stage II Vapor Recovery Definitions and List of California Air Resources Board Certified Stage II Equipment)); or certified by a CARB Executive Order in effect after January 1, 2002, except that the executive director reserves the right to continue to recognize any CARB Executive Orders decertified after January 1, 2002; or certified by an alternative procedure that meets the requirements specified in §115.243 of this title (relating to Alternate Control Requirements). In addition:(A) Stage II vapor recovery balance systems that include vapor check valves in a location other than the nozzle may not be installed;(B) Stage II vapor recovery systems that include dual-hang (non-coaxial) hoses may not be installed; and(C) all Stage II vapor recovery systems must be onboard refueling vapor recovery (ORVR) compatible, as defined in §115.240 of this title.(2) All underground piping must be installed by a person holding a valid License A as defined in §§334.401, 334.407, and 334.424 of this title (relating to License and Registration Required; Other Requirements for an Underground Storage Tank Contractor; and Other Requirements for an On-Site Supervisor). Piping specifications must be in compliance with the applicable CARB Executive Order(s) or third-party certification for the Stage II vapor recovery system. For any facility newly constructed after November 15, 1993, or at any facility undergoing a major modification to the Stage II vapor recovery system after November 15, 1993, the following requirements apply where piping specifications are not provided in the applicable CARB Executive Order(s) or third-party certification.(A) All underground piping must be constructed of rigid material and conform to the applicable portions of the technical standards for new piping defined by §334.45(c) and (e) of this title (relating to Technical Standards for New Underground Storage Tank Systems).(B) Noncorrodible piping or cathodically protected metallic piping must be used. In the event metallic piping is used, the applicable portions of the general requirements for corrosion protection defined by §334.49(a)(1) - (5) and (c)(1) - (4) of this title (relating to Corrosion Protection) apply.(C) Minimum slope on vapor piping must be 1/8 inch per foot from the dispenser to the storage tank. Piping installed after January 1, 2002, must not include liquid collection points (condensate traps) unless the associated underground storage tanks:(i) were installed prior to November 15, 1992; and(ii) are not at sufficient depth to allow for minimum slope requirements.(D) Vapor piping on balance systems must be two inches or greater in diameter, and when there are more than four fueling points connected to one vapor line, the minimum vapor piping size must be three inches in diameter. For the purposes of this paragraph, a single nozzle dispenser constitutes one fueling point and a multi-nozzle dispenser constitutes two fueling points.(E) Riser piping must have a minimum inside diameter of one inch and must slope towards the storage tank at all points. Riser piping is defined as the predominantly vertically oriented vapor recovery piping that enters the gasoline dispenser base, which connects the dispenser mounted piping with the buried vapor recovery piping that leads to one or more storage tanks.(F) If a fire protection agency with jurisdiction requires a vapor shear valve on the vapor return line at the base of a dispenser, the shear valve must be CARB-certified and/or Underwriters Laboratories listed for use in vapor recovery systems.(3) The owner or operator shall maintain the Stage II vapor recovery system in proper operating condition, as specified by the manufacturer and/or any applicable CARB Executive Order(s) or third-party certification, and free of defects that would impair the effectiveness of the system, including, but not limited to:(A) absence or disconnection of any component that is a part of the approved system;(B) a vapor hose that is crimped or flattened such that the vapor passage is blocked, or the backpressure through the vapor system exceeds the value as certified in the approved system's CARB Executive Order(s) or third-party certification;(C) a nozzle boot that is torn in one or more of the following ways:(i) a triangular-shaped or similar tear more than 1/2 inch on a side;(ii) a hole more than 1/2 inch in diameter; or(iii) a slit more than one inch in length;(D) for balance nozzles, a faceplate that is damaged such that the capability to achieve a seal with a fill pipe interface is affected for a total of at least one-fourth of the circumference of the faceplate;(E) for booted nozzles in vacuum assist type systems, a flexible cone for which a total of at least one-fourth of the cone is damaged or missing;(F) a nozzle shut-off mechanism that malfunctions in any manner;(G) vapor return lines, including such components as swivels, anti-recirculation valves, and underground piping, that malfunction, are blocked, or are restricted such that the pressure decay and/or dynamic backpressure through the line exceeds the value as certified in the approved system's CARB Executive Order(s) or third-party certification;(H) a vapor processing or control unit that is inoperative or defective;(I) a vacuum producing device that is inoperative or defective;(J) pressure/vacuum relief valves, vapor check valves, or Stage I dry breaks that are inoperative or defective;(K) a system monitor or printer that is malfunctioning or out of paper;(L) a nozzle, hose, break-away, or any other component that is not approved for use with the certified vapor recovery system in use; and(M) any equipment defect that is identified in the certification of an approved system as substantially impairing the effectiveness of the system in reducing refueling vapor emissions.(4) No gasoline leaks, as detected by sampling, sight, sound, or smell, exist anywhere in the dispensing equipment or Stage II vapor recovery system.(5) Upon identification of any of the defects described in paragraphs (3) and (4) of this subsection, the owner or operator or his or her representative shall remove from service all dispensing equipment for which vapor recovery has been impaired. The impaired equipment must remain out of service until such time as the equipment has been properly repaired, replaced, or adjusted, as necessary. Once repaired, the equipment may be returned to service by the owner or operator or his or her representative.(6) Upon identification of any of the defects described in paragraphs (3) and (4) of this subsection, any inspector with jurisdiction shall tag the impaired equipment out-of-order. The "Out-of-Order" tag must state "use of this device is prohibited under state law, and unauthorized removal of this tag or use of this equipment will constitute a violation of the law punishable by a maximum civil penalty of up to $25,000 per day or a maximum criminal penalty of $50,000 and/or up to 180 days in jail." The impaired equipment must remain out of service until such time as the equipment has been properly repaired, replaced, or adjusted, as necessary. After repairs are completed and verbal notification is given to the agency that originally tagged the equipment out of service, the "Out-of-Order" tag may be removed by the owner or operator or the facility representative and the equipment may be returned to service. Within ten days of placing the equipment back in service, written notification that the equipment has been returned to service must be provided by the owner or operator or the facility representative to the agency that originally tagged the equipment out-of-service. For the purposes of this paragraph, "facility representative" has the meaning ascribed to it in §115.248(1) of this title (relating to Training Requirements).(7) No person shall repair, modify, or permit the repair or modification of the Stage II vapor recovery system or its components such that they are different from their approved configuration, and only original equipment manufacturer (OEM) parts or CARB-certified non-OEM aftermarket parts shall be used as replacement parts.(8) No person shall tamper with, or permit tampering with, any part of the Stage II vapor recovery system in a manner that would impair the operation or effectiveness of the system.(9) The owner or operator of a gasoline dispensing facility shall post operating instructions conspicuously on the front of each gasoline dispensing pump equipped with a Stage II vapor recovery system. These instructions, at a minimum, include:(A) a clear description of how to correctly dispense gasoline using the system; and(B) a warning against attempting to continue to refuel after initial automatic shutoff of the system (an indication that the vehicle fuel tank is full).</content><note type="source"><p>Source Note: The provisions of this §115.242 adopted to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective November 27, 2002, 27 TexReg 10935; amended to be effective April 13, 2005, 30 TexReg 2069; amended to be effective October 31, 2013, 38 TexReg 7453.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.243"><num value="115.243">§115.243</num><heading>Alternate Control Requirements</heading><content>Alternate methods of complying with §115.242(d)(1) of this title (relating to Control Requirements) may be approved by the executive director if:(1) emission reductions are demonstrated to be equivalent or greater than those afforded by the requirements in §115.242(d)(1) of this title; and(2) the Stage II vapor recovery system is capable of meeting the applicable performance requirements prescribed in this division as certified by third-party evaluation conducted by a qualified independent testing organization using a code or standard of practice, acceptable to the executive director, which has been developed by a nationally recognized agency, association, or independent testing laboratory.</content><note type="source"><p>Source Note: The provisions of this §115.243 adopted to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective November 27, 2002, 27 TexReg 10935; amended to be effective April 13, 2005, 30 TexReg 2069; amended to be effective October 31, 2013, 38 TexReg 7453.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.244"><num value="115.244">§115.244</num><heading>Inspection Requirements</heading><content>The owner or operator of any gasoline dispensing facility subject to the control requirements of this division shall conduct daily inspections of the Stage II vapor recovery system for the defects specified in §115.242(d)(3) and (4) of this title (relating to Control Requirements) as follows.(1) For all systems, the daily inspections must include the applicable portions of §115.242(d)(3)(A) - (F), (H), and (K), and (4) of this title.(2) For assist systems that use a processor, indicating mechanisms designed by the Stage II vapor recovery equipment manufacturer to verify proper operation must be inspected daily. Examples of these indicating mechanisms include flame detection sensors, remote (from the processor) visual or audible displays indicating system operation, or other means as described in the applicable Executive Order for the system.(3) For all systems, the components listed in §115.242(d)(3)(J) of this title must be inspected at least monthly.(4) For all systems, the components listed in §115.242(d)(3)(G) of this title must be inspected at least annually.</content><note type="source"><p>Source Note: The provisions of this §115.244 adopted to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective November 27, 2002, 27 TexReg 10935; amended to be effective October 31, 2013, 38 TexReg 7453.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.245"><num value="115.245">§115.245</num><heading>Testing Requirements</heading><content>Prior to the decommissioning deadline of August 31, 2018, owners or operators of gasoline dispensing facilities that have not yet decommissioned Stage II vapor controls in compliance with the requirements of this division shall repair, replace, or retain Stage II vapor controls as follows. (1) Within 30 days of installation, at least once every 36 months thereafter, and upon major system replacement or modification, Stage II vapor recovery systems must successfully meet the performance criteria proper to the system by successfully completing the following testing requirements using the test procedures as found in the commission's Vapor Recovery Test Procedures Handbook, (RG-399, November 2002). (A) For balance and assist systems: (i) the manifolding or interconnectivity of the vapor space must be consistent with the Executive Order or third-party certification requirements for the installed system (Texas test procedure TXP-101 or equivalent); (ii) the sum of the vapor leaks in the system must not exceed acceptable limits for the system as defined in the pressure decay test (Texas test procedure TXP-102 or equivalent); (iii) the maximum acceptable backpressure through a given vapor path must not exceed the limits as found in the backpressure/liquid blockage test applicable for the vapor path for the system (Texas test procedure TXP-103 or equivalent); and (iv) the maximum gasoline flow rate through the nozzle must not exceed the limits found in the Executive Order or third-party certification for the system (Texas test procedure TXP-104 or equivalent). (B) For bootless nozzle assist systems, the volume-to-liquid ratio (V/L ratio) or air-to-liquid ratio (A/L ratio) must be within acceptable limits (Texas test procedure TXP-106 or equivalent). (C) Each system must meet minimum performance criteria specific to the individual system as defined in the CARB Executive Order or third-party certification. The criteria and test methods contained in the test procedures handbook specified in this paragraph must take precedence for applicable tests where performance criteria exist in both the Executive Order and the test procedures handbook; otherwise, the Executive Order specific criteria must take precedence. (2) Verification of proper operation of the Stage II equipment must be performed in accordance with the test procedures referenced in this paragraph at least once every 12 months. The verification must include all functional tests that were required for the initial system test, except for TXP-101, Determination of Vapor Space Manifolding of Vapor Recovery Systems at Gasoline Dispensing Facilities, and TXP-103, Determination of Dynamic Pressure Performance (Dynamic Back-Pressure) of Vapor Recovery Systems at Gasoline Dispensing Facilities, which must be performed at least once every 36 months. (3) The owner or operator, or his or her representative, shall provide written notification to the appropriate regional office and any local air pollution program with jurisdiction of the testing date and time and of whom will conduct the test. The notification must be received by the appropriate regional office and any local air pollution program with jurisdiction at least ten working days in advance of the test, and the notification must contain the information and be in the format as found in the test procedures handbook. Notification may take the form of a facsimile or telecopier transmission, as long as the facsimile is received by the appropriate regional office and any local air pollution program with jurisdiction at least ten working days prior to the test and it is followed up within two weeks of the transmission with a written notification. The owner or operator, or his or her representative, shall give at least 24-hour notification to the appropriate regional office and any local air pollution program with jurisdiction if a scheduled test is cancelled. In the event that the test cancellation is not anticipated prior to 24 hours before the scheduled test, the owner or operator, or his or her representative, shall notify the appropriate regional office and any local air pollution program with jurisdiction as soon in advance of the scheduled test as is practicable. (4) Minor modifications of these test methods may only be used if they have been approved by the executive director. (5) All required tests must be conducted either in the presence of a Texas Commission on Environmental Quality or local program inspector with jurisdiction, or by a person who is registered with the executive director to conduct Stage II vapor recovery tests. The requirement to be registered begins on November 15, 1993, or 60 days after the executive director has established the registry, whichever occurs later. The executive director may remove an individual from the registry of testers for any of the following causes: (A) the executive director can demonstrate that the individual has failed to conduct the test(s) properly in at least three separate instances; or (B) the individual falsifies test results for tests conducted to fulfill the requirements of this section. (6) The owner or operator, or his or her representative, shall submit the results of all tests required by this section to the appropriate regional office and any local air pollution control program with jurisdiction within ten working days of the completion of the test(s) using the format specified in the test procedures handbook. For purposes of on-site recordkeeping, the Test Procedures Results Cover Sheet, properly completed with the summary of the testing, is acceptable. The detailed results from each test conducted along with a properly completed summary sheet, as provided for in the test procedures handbook, must be submitted to the appropriate regional office and any local air pollution control program with jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §115.245 adopted to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective November 27, 2002, 27 TexReg 10935; amended to be effective April 13, 2005, 30 TexReg 2069; amended to be effective October 31, 2013, 38 TexReg 7453.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.246"><num value="115.246">§115.246</num><heading>Recordkeeping Requirements</heading><content>(a) The owner or operator of any gasoline dispensing facility subject to the control requirements of this division shall maintain the following records:(1) a copy of the California Air Resources Board (CARB) Executive Order(s) or third-party certification(s) for the Stage II vapor recovery system and any related components installed at the facility;(2) a copy of any owner or operator request for executive director approval under §115.243 of this title (relating to Alternate Control Requirements) and any executive director approval issued under §115.243 of this title;(3) a record of any maintenance conducted on any part of the Stage II equipment, including a general part description, the date and time the equipment was taken out of service, the date of repair or replacement, the replacement part manufacturer's information, a general description of the part location in the system (e.g., pump or nozzle number, etc.), and a description of the problem;(4) proof of attendance and completion of the training specified in §115.248 of this title (relating to Training Requirements), with the documentation of all Stage II training for each employee to be maintained as long as that employee continues to work at the facility;(5) a record of the results of testing conducted at the gasoline dispensing facility in accordance with the provisions specified in §115.245 of this title (relating to Testing Requirements);(6) a record of the results of the daily inspections conducted at the gasoline dispensing facility in accordance with the provisions specified in §115.244 of this title (relating to Inspection Requirements);(7) copies of all notifications and records sufficient to demonstrate compliance with the applicable decommissioning steps listed in §115.241 of this title (relating to Decommissioning of Stage II Vapor Recovery Equipment), including all required test results, kept on site for five years following the completion of the decommissioning activity.(b) All records required under subsection (a) of this section must be maintained and made available as follows.(1) Records required under subsection (a)(1), (2), (5), and (7) of this section must be maintained until five years following the date of decommissioning completion. Records required under subsection (a)(3), (4), and (6) of this section must be maintained for at least two years.(2) Records must be kept on site at facilities ordinarily manned during business hours and made immediately available for review upon request by authorized representatives of the executive director, United States Environmental Protection Agency (EPA) or any local air pollution control program with jurisdiction; or(3) Records for gasoline dispensing facilities unmanned at the time of inspection, must be made available at the site within 48 hours after being requested by authorized representatives of the executive director, EPA, or any local air pollution control program with jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §115.246 adopted to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective November 27, 2002, 27 TexReg 10935; amended to be effective October 31, 2013, 38 TexReg 7453.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.248"><num value="115.248">§115.248</num><heading>Training Requirements</heading><content>For all persons affected by this division (relating to Control of Vehicle Refueling Emissions (Stage II) at Motor Vehicle Fuel Dispensing Facilities), the following training requirements apply.(1) The owner or operator of a motor vehicle fuel dispensing facility shall ensure that at least one facility representative receive training and instruction in the operation and maintenance of the Stage II vapor recovery system by successfully completing a training course approved by the executive director. Successful completion constitutes certification of the facility representative. Each such facility representative is then responsible for making every current and future employee aware of the purposes and correct operating procedures of the system. The required training must be completed as soon as practicable prior to the initiation of operation of the facility's Stage II equipment. The following additional requirements apply to the designation of the facility representative.(A) For normally unattended facilities such as unattended card-lock facilities, or for normally unattended refueling facilities not open to the public, a single person may fulfill the facility representative role at more than one facility.(B) For facilities normally attended, a single person shall not fulfill the facility representative role at more than one facility at a time.(2) If the facility representative who received the approved training is no longer employed at that facility, another facility representative must successfully complete approved training within three months of the departure of the previously trained employee.(3) An approved training course will include, but is not limited to, the following:(A) federal and state Stage I and Stage II regulations (including enforcement consequences of noncompliance) and vapor recovery health effects and benefits;(B) equipment operation and function of each type of vapor recovery system;(C) general overview of maintenance and testing schedules and requirements for Stage II vapor recovery equipment;(D) general overview of structure and content of California Air Resources Board (CARB) Executive Orders; and(E) recordkeeping and inspection requirements for Stage I and Stage II vapor recovery systems.(4) The executive director may revoke approval of a training course if the training provider:(A) fails to administer the training course as proposed in the application made to the executive director to provide such training; or(B) fails to notify the executive director of upcoming courses in writing at least 21 days prior to the date of the training as to the date, time, and place the training is to be held, or in the event of a scheduled course cancellation, fails to notify the executive director at least 24 hours in advance of the cancellation, except:(i) for all training providers, if conditions exist such that 24-hour notice of course cancellation is impossible or impracticable, notice must be given to the executive director as soon as practicable, preferably prior to the time the course was originally scheduled; and(ii) for training courses provided at no charge to the persons who attend, such as company-provided in-house training, the 21-day advance notice does not apply, and advance notice of upcoming courses is only required when such notice is requested, in writing, by the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.248 adopted to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective November 27, 2002, 27 TexReg 10935; amended to be effective April 13, 2005, 30 TexReg 2069.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.252"><num value="115.252">§115.252</num><heading>Control Requirements</heading><content>For the El Paso area as defined in §115.10 of this title (relating to Definitions), the following control requirements shall apply.(1) No person shall place, store, or hold in any stationary tank, reservoir, or other container any gasoline which may ultimately be used in a motor vehicle in the El Paso area with a Reid vapor pressure (RVP) greater than 7.0 pounds per square inch absolute (psia) or that does not meet the United States Environmental Protection Agency (EPA) specifications for reformulated gasoline.(2) No person shall transfer or allow the transfer of gasoline which may ultimately be used in a motor vehicle in the El Paso area with an RVP greater than 7.0 psia or that does not meet EPA specifications for reformulated gasoline to or from any storage vessel or tank-truck tank at any gasoline terminal, bulk plant, or motor vehicle fuel dispensing facility.(3) All adjustments in the operation of affected facilities and all transfers or alterations of noncompliant gasoline must be completed as necessary to conform with the provisions of this rule during the following periods of each calendar year:(A) June 1 through September 16 of each year for motor vehicle fuel dispensing facilities; and(B) May 1 through September 16 of each year for all other affected facilities.</content><note type="source"><p>Source Note: The provisions of this §115.252 adopted to be effective May 27, 1994, 19 TexReg 3703.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.253"><num value="115.253">§115.253</num><heading>Alternate Control Requirements</heading><content>For all affected persons in the Beaumont/Port Arthur, Dallas/Fort Worth, El Paso, and Houston/Galveston areas, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this undesignated head (relating to Control of Reid Vapor Pressure of Gasoline) may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.</content><note type="source"><p>Source Note: The provisions of this §115.253 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.255"><num value="115.255">§115.255</num><heading>Approved Test Methods</heading><content>For the El Paso area, the following testing requirements shall apply:(1) Sampling Procedures for Fuel Volatility (40 Code of Federal Regulations, Part 80, Appendix D); and(2) Tests for Determining Reid Vapor Pressure of Gasoline and Gasoline-Oxygenate Blends (40 Code of Federal Regulations, Part 80, Appendix E).</content><note type="source"><p>Source Note: The provisions of this §115.255 adopted to be effective May 27, 1994, 19 TexReg 3703.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.256"><num value="115.256">§115.256</num><heading>Recordkeeping Requirements</heading><content>For the El Paso area, the owner or operator of any gasoline storage vessel, gasoline terminal, or gasoline bulk plant affected by the provisions of §115.252 of this title (relating to Control Requirements) shall maintain records of the Reid vapor pressure of all gasoline stored or transferred during the compliance period. All records shall be maintained for two years and be made available for review by representatives of the executive director, the United States Environmental Protection Agency, and local air pollution control agencies.</content><note type="source"><p>Source Note: The provisions of this §115.256 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.257"><num value="115.257">§115.257</num><heading>Exemptions</heading><content>For the El Paso area, the following exemptions shall apply.(1) Any stationary tank, reservoir, or other container used exclusively for the fueling of implements of agriculture is exempt from the requirements of §115.252 of this title (relating to Control Requirements).(2) The owner or operator of a motor vehicle fuel dispensing facility is exempt from the requirements of §115.256 of this title (relating to Recordkeeping Requirements).(3) Any tank, reservoir, storage vessel, or other stationary container with a nominal capacity of 500 gallons (1,893 liters) or less is exempt from the requirements of §115.252 of this title.</content><note type="source"><p>Source Note: The provisions of this §115.257 adopted to be effective May 27, 1994, 19 TexReg 3703.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scC/s115.259"><num value="115.259">§115.259</num><heading>Counties and Compliance Schedules</heading><content>All affected persons in the El Paso County area shall be in compliance with this undesignated head (relating to Control of Reid Vapor Pressure of Gasoline) no later than May 1, 1996.</content><note type="source"><p>Source Note: The provisions of this §115.259 adopted to be effective May 27, 1994, 19 TexReg 3703.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c115/scD"><num value="D">SUBCHAPTER D</num><heading>PETROLEUM REFINING, NATURAL GAS PROCESSING, AND PETROCHEMICAL PROCESSES</heading><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.311"><num value="115.311">§115.311</num><heading>Emission Specifications</heading><content>(a) For all affected persons in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), the following emission specifications on vacuum-producing systems shall apply.(1) No person may be allowed to emit any volatile organic compound (VOC) from a steam ejector or mechanical vacuum pump in a petroleum refinery unless the vent stream is controlled properly in accordance with §115.312(a)(2) of this title (relating to Control Requirements).(2) No person may be allowed to emit any VOC from a hotwell with a contact condenser unless the hotwell is covered and the vapors from the hotwell are controlled properly in accordance with §115.312(a)(2) of this title.(b) For all affected persons in Gregg, Nueces, and Victoria Counties, the following emission specifications on vacuum-producing systems shall apply.(1) No person may be allowed to emit any VOC from a steam ejector or mechanical vacuum pump in a petroleum refinery, unless the vent stream is controlled properly in accordance with §115.312(b)(2) of this title.(2) No person may be allowed to emit any VOC from a hotwell with a contact condenser, unless the hotwell is covered and the vapors from the hotwell are controlled properly in accordance with §115.312(b)(2) of this title.</content><note type="source"><p>Source Note: The provisions of this §115.311 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.312"><num value="115.312">§115.312</num><heading>Control Requirements</heading><content>(a) For all affected persons in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), the following control requirements shall apply.(1) Volatile organic compound (VOC) emissions from petroleum refineries shall be controlled during process unit shutdown or turnaround with the following procedure:(A) recover and store all pumpable or drainable liquid; and(B) reduce vessel gas pressure to 5.0 pounds per square inch gauge (psig) (34.5 kPa gauge) or less by recovery or combustion before venting to the atmosphere.(2) Vent gas streams affected by §115.311(a) of this title (relating to Emission Specifications) must be controlled properly with a control efficiency of at least 90% or to a VOC concentration of no more than 20 parts per million by volume (ppmv) (on a dry basis corrected to 3.0% oxygen for combustion devices):(A) in a direct-flame incinerator at a temperature equal to or greater than 1,300 degrees Fahrenheit (704 degrees Celsius);(B) in a smokeless flare; or(C) by any other vapor control system, as defined in §115.10 of this title (relating to Definitions).(3) In the Houston-Galveston-Brazoria area, the following are subject to the requirements of Subchapter H of this chapter (relating to Highly-Reactive Volatile Organic Compounds) in addition to the applicable requirements of this division (relating to Process Unit Turnaround and Vacuum-Producing Systems in Petroleum Refineries):(A) any vent gas stream which is subject to §115.311(a) of this title and which includes a HRVOC, as defined in §115.10 of this title; and(B) any process unit shutdown or turnaround of a unit in which a HRVOC is a raw material, intermediate, final product, or in a waste stream.(b) For all affected persons in Gregg, Nueces, and Victoria Counties, the following control requirements shall apply.(1) VOC emissions from petroleum refineries shall be controlled during process unit shutdown or turnaround with the following procedure:(A) recover and store all pumpable or drainable liquid; and(B) reduce vessel gas pressure to five psig (34.5 kPa gauge) or less by recovery or combustion before venting to the atmosphere.(2) Vent gas streams affected by §115.311(b) of this title must be controlled properly with a control efficiency of at least 90% or to a VOC concentration of no more than 20 ppmv (on a dry basis corrected to 3.0% oxygen for combustion devices):(A) in a direct-flame incinerator at a temperature equal to or greater than 1,300 degrees Fahrenheit (704 degrees Celsius);(B) in a smokeless flare; or(C) by any other vapor control system, as defined in §115.10 of this title.</content><note type="source"><p>Source Note: The provisions of this §115.312 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.313"><num value="115.313">§115.313</num><heading>Alternate Control Requirements</heading><content>Alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements in this division (relating to Process Unit Turnaround and Vacuum-Producing Systems in Petroleum Refineries) may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.</content><note type="source"><p>Source Note: The provisions of this §115.313 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.315"><num value="115.315">§115.315</num><heading>Testing Requirements</heading><content>(a) For all affected persons in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, compliance with §115.311(a) of this title (relating to Emission Specifications) and §115.312(a) of this title (relating to Control Requirements) shall be determined by applying the following test methods, as appropriate:(1) Test Method 22 (40 Code of Federal Regulations 60, Appendix A) for visual determination of fugitive emissions from material sources and smoke emissions from flares;(2) additional control device requirements for flares described in 40 Code of Federal Regulations §60.18(f);(3) Test Methods 1-4 (40 Code of Federal Regulations 60, Appendix A) for determining flow rate, as necessary;(4) Test Method 18 (40 Code of Federal Regulations 60, Appendix A) for determining gaseous organic compound emissions by gas chromatography;(5) Test Method 25 (40 Code of Federal Regulations 60, Appendix A) for determining gaseous nonmethane organic emissions as carbon;(6) Test Methods 25A or 25B (40 Code of Federal Regulations 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis; or(7) minor modifications to these test methods approved by the executive director.(b) For all affected persons in Gregg, Nueces, and Victoria Counties, compliance with §115.311(b) of this title (relating to Emission Specifications) and §115.312(b) of this title (relating to Control Requirements) shall be determined by applying the following test methods, as appropriate:(1) Test Method 22 (40 Code of Federal Regulations 60, Appendix A) for visual determination of fugitive emissions from material sources and smoke emissions from flares;(2) additional control device requirements for flares described in 40 Code of Federal Regulations 60.18(f);(3) Test Methods 1-4 (40 Code of Federal Regulations 60, Appendix A) for determining flow rate, as necessary;(4) Test Method 18 (40 Code of Federal Regulations 60, Appendix A) for determining gaseous organic compound emissions by gas chromatography;(5) Test Method 25 (40 Code of Federal Regulations 60, Appendix A) for determining total gaseous nonmethane organic emissions as carbon;(6) Test Methods 25A or 25B (40 Code of Federal Regulations 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis; or(7) minor modifications to these test methods approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.315 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3721; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.316"><num value="115.316">§115.316</num><heading>Monitoring and Recordkeeping Requirements</heading><content>(a) For all affected persons in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title, the following recordkeeping requirements shall apply.(1) Any person who operates a vacuum-producing system affected by §115.311(a) of this title (relating to Emission Specifications) shall keep the following records:(A) continuous monitoring of the exhaust gas temperature immediately downstream of a direct-flame incinerator;(B) continuous monitoring of temperatures upstream and downstream of a catalytic incinerator or chiller; and(C) continuous monitoring of the exhaust gas volatile organic compound (VOC) concentration of any carbon adsorption system, as defined in §115.10 of this title (relating to Definitions), to determine breakthrough.(2) Any person who conducts a process unit turnaround affected by §115.312(a) of this title (relating to Control Requirements) shall keep the following records:(A) the date of process unit shutdown and subsequent start-up following turnaround;(B) the type of process unit involved in the turnaround; and(C) an estimation of the concentration and total emissions of VOC emissions released to the atmosphere during the process turnaround.(3) The results of any testing conducted in accordance with the provisions specified in §115.315(a) of this title (relating to Testing Requirements) shall be maintained at the affected facility.(4) All records shall be maintained for two years and be made available for review upon request by authorized representatives of the executive director, EPA, or local air pollution control agencies.(b) For all affected persons in Victoria County, the following recordkeeping requirements shall apply.(1) Any person who operates a vacuum-producing system affected by §115.311(b) of this title shall keep the following records:(A) continuous monitoring of the exhaust gas temperature immediately downstream of a direct-flame incinerator;(B) continuous monitoring of temperatures upstream and downstream of a catalytic incinerator or chiller; and(C) continuous monitoring of the exhaust gas VOC concentration of any carbon adsorption system, as defined in §115.10 of this title, to determine breakthrough.(2) Any person who conducts a process unit turnaround affected by §115.312(b) of this title shall keep the following records:(A) the date of process unit shutdown and subsequent start-up following turnaround;(B) the type of process unit involved in the turnaround; and(C) an estimation of the concentration and total emissions of VOC emissions released to the atmosphere during the process turnaround.(3) The results of any testing conducted in accordance with the provisions specified in §115.315(b) of this title shall be maintained at the affected facility.(4) All records shall be maintained for two years and be made available for review upon request by authorized representatives of the executive director, EPA, or local air pollution control agencies.</content><note type="source"><p>Source Note: The provisions of this §115.316 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3721; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.317"><num value="115.317">§115.317</num><heading>Exemptions</heading><content>For all affected persons in Gregg, Nueces, and Victoria Counties, any vacuum-producing system emitting a combined weight of volatile organic compounds equal to or less than 100 pounds (45.4 kg) in any consecutive 24-hour period is exempt from the requirements of §115.311(b) of this title (relating to Emission Specifications).</content><note type="source"><p>Source Note: The provisions of this §115.317 adopted to be effective August 1, 1992, 17 TexReg 4683.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.319"><num value="115.319">§115.319</num><heading>Counties and Compliance Schedules</heading><content>(a) All affected persons in Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Gregg, Hardin, Harris, Jefferson, Liberty, Montgomery, Nueces, Orange, Tarrant, Victoria, and Waller Counties shall continue to comply with this division (relating to Process Unit Turnaround and Vacuum-Producing Systems in Petroleum Refineries) as required by §115.930 of this title (relating to Compliance Dates).(b) All affected persons in Ellis, Johnson, Kaufman, Parker, and Rockwall Counties shall comply with this division as soon as practicable, but no later than March 1, 2009.(c) All affected persons in the Bexar County area subject to the requirements of this division shall comply with the requirements of this division no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §115.319 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3721; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective December 7, 2006, 31 TexReg 9840; amended to be effective May 16, 2024, 49 TexReg3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.322"><num value="115.322">§115.322</num><heading>Control Requirements</heading><content>For Gregg, Nueces, and Victoria Counties, no person shall operate a petroleum refinery without complying with the following requirements.(1) No component may be allowed to have a volatile organic compound (VOC) leak as defined in §101.1 of this title (relating to Definitions) for more than 15 calendar days after the leak is found, except as provided in paragraph (2) of this section. If the owner or operator elects to use the alternative work practice in §115.358 of this title (relating to Alternative Work Practice), the definition of a leak for the purposes of this paragraph is as specified in §115.358 of this title, including any leak detected using the alternative work practice on a component that is subject to the requirements of this division (relating to Fugitive Emission Control in Petroleum Refineries in Gregg, Nueces, and Victoria Counties) but not specifically selected for alternative work practice monitoring.(2) A first attempt at repair must be made no later than five calendar days after the leak is found, and the component must be repaired no later than 15 calendar days after the leak is found, unless the repair of a component would require a unit shutdown that would create more emissions than the repair would eliminate. A component in gas/vapor or light liquid service is considered to be repaired when it is monitored with an instrument using Method 21 in 40 Code of Federal Regulations Part 60, Appendix A-7 (October 17, 2000) and shown to no longer have a leak after adjustments or alterations to the component. A component in heavy liquid service is considered to be repaired when it is monitored by audio, visual, and olfactory means and shown to no longer have a leak after adjustments or alterations to the component. For any component that the owner or operator monitors using the alternative work practice in §115.358 of this title, the component is considered repaired when the component is monitored using either an optical gas imaging instrument as specified in §115.358 of this title or the normal monitoring method required under this division and is demonstrated to no longer have a leak after adjustments or alterations to the component. If the repair of a component would require a unit shutdown that would create more emissions than the repair would eliminate, the repair may be delayed until the next scheduled shutdown.(3) All leaking components, as defined in paragraph (1) of this section, that cannot be repaired until the unit is shut down for turnaround must be identified for such repair by tagging. The executive director may require early unit turnaround or other appropriate action based on the number and severity of tagged leaks awaiting turnaround.(4) Except for pressure relief valves, no valves may be installed or operated at the end of a pipe or line containing a VOC, unless the pipe or line is sealed with a second valve, a blind flange, a plug, or a cap. The sealing device may be removed only while a sample is being taken or during maintenance operations, and when closing the line, the upstream valve must be closed first.(5) Pipeline valves and pressure relief valves in gaseous VOC service must be marked in some manner that will be readily obvious to monitoring personnel. Alternatively, the owner or operator of the refinery may choose to monitor all components in liquid service on the schedule for components in gaseous service specified in §115.324(2) of this title (relating to Inspection Requirements). If the owner or operator elects to use the alternative work practice in §115.358 of this title to monitor components in liquid service, the frequency must be as specified in §115.358 of this title.</content><note type="source"><p>Source Note: The provisions of this §115.322 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3722; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective June 24, 2010, 35 TexReg 5293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.323"><num value="115.323">§115.323</num><heading>Alternate Control Requirements</heading><content>For all affected persons in Gregg, Nueces, and Victoria Counties, the following alternate control techniques may apply.(1) Any alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division (relating to Fugitive Emission Control in Petroleum Refineries in Gregg, Nueces, and Victoria Counties) may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.(2) The executive director may approve an alternate monitoring method if the refinery operator can demonstrate that the alternate monitoring method satisfies the conditions of §115.324(7) of this title (relating to Inspection Requirements). Any request for an alternate monitoring method must be made in writing to the executive director.(3) The owner or operator of a site in Gregg, Nueces, or Victoria Counties that is subject to this division may use the alternative work practice in §115.358 of this title (relating to Alternative Work Practice) as an optional alternative to hydrocarbon gas analyzer monitoring required under this division.</content><note type="source"><p>Source Note: The provisions of this §115.323 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective June 24, 2010, 35 TexReg 5293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.324"><num value="115.324">§115.324</num><heading>Inspection Requirements</heading><content>For Gregg, Nueces, and Victoria Counties, the owner or operator of a petroleum refinery shall conduct a monitoring program consistent with the following provisions.(1) The owner or operator shall measure yearly (with a hydrocarbon gas analyzer) the emissions from all:(A) pump seals;(B) pipeline valves in liquid service;(C) process drains; and(D) all valves elevated more than two meters above any permanent structure.(2) The owner or operator shall measure quarterly (with a hydrocarbon gas analyzer) the emissions from all:(A) compressor seals;(B) pipeline valves in gaseous service; and(C) pressure relief valves in gaseous service.(3) The owner or operator shall visually inspect, weekly, all pump seals.(4) The owner or operator shall measure (with a hydrocarbon gas analyzer) the emissions from any component, except those exempted by §115.327(2) and (3) of this title (relating to Exemptions), whenever a potential leak is detected by sight, sound, or smell.(5) The owner or operator shall measure (with a hydrocarbon gas analyzer) emissions from any relief valve that has vented to the atmosphere within 24 hours.(6) Upon the detection of a leaking component, the owner or operator shall affix to the leaking component a weatherproof and readily visible tag, bearing an identification number and the date the leak was located. This tag must remain in place until the leaking component is repaired.(7) The monitoring schedule of paragraphs (1) - (3) of this section may be modified as follows.(A) After completion of the required quarterly valve monitoring for a period of at least two years, the operator of a refinery may request in writing to the executive director that the valve monitoring schedule be revised based on the percent of valves leaking. The percent of valves leaking must be determined by dividing the sum of valves leaking during current monitoring and valves for which repair has been delayed by the total number of valves subject to the requirements. This request must include all data that have been developed to justify the following modifications in the monitoring schedule.(i) After two consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0%, an owner or operator may begin to skip one of the quarterly leak detection periods for the valves in gas/vapor and light liquid service.(ii) After five consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0%, an owner or operator may begin to skip three of the quarterly leak detection periods for the valves in gas/vapor and light liquid service.(iii) Leak detection skip period requirements for any New Source Performance Standard or National Emission Standard for Hazardous Air Pollutants may be substituted for clauses (i) and (ii) of this subparagraph.(B) If the executive director determines that there is an excessive number of leaks in any given process area, the executive director may require an increase in the frequency of monitoring for that process area of the refinery.(8) For any components that the owner or operator elects to use the alternative work practice in §115.358 of this title (relating to Alternative Work Practice), the following provisions apply.(A) The frequency for monitoring any components listed in paragraphs (1) or (2) of this section must be the frequency determined according to §115.358(e) of this title, except as specified in subparagraph (C) of this paragraph.(B) The alternative monitoring schedules allowed under paragraph (7) of this section are not allowed.(C) If the owner or operator elects to use the alternative work practice in §115.358 of this title to satisfy the hydrocarbon gas analyzer monitoring requirement of paragraph (5) of this section, the time limitation specified in paragraph (5) of this section for performing the monitoring continues to apply.(D) If the executive director determines that there is an excessive number of leaks in any given process area that the alternative work practice in §115.358 of this title is used, the executive director may require an increase in the frequency of monitoring under the alternative work practice for that process area of the refinery.</content><note type="source"><p>Source Note: The provisions of this §115.324 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3722; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective June 24, 2010, 35 TexReg 5293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.325"><num value="115.325">§115.325</num><heading>Testing Requirements</heading><content>For all affected persons in Gregg, Nueces, and Victoria Counties, compliance with this division (relating to Fugitive Emission Control in Petroleum Refineries in Gregg, Nueces, and Victoria Counties) must be determined by applying the following test methods, as appropriate:(1) Method 21 in 40 Code of Federal Regulations Part 60, Appendix A-7 (October 17, 2000) for determining volatile organic compound (VOC) leaks, with the provision that the leak detection equipment can be calibrated with methane, propane, or hexane, but the meter readout must be as parts per million by volume hexane;(2) determination of true vapor pressure using American Society for Testing and Materials Test Method D323 for the measurement of Reid vapor pressure, adjusted for 68 degrees Fahrenheit (20 degrees Celsius) in accordance with American Petroleum Institute Publication 2517, Third Edition, 1989;(3) the alternative work practice in §115.358 of this title (relating to Alternative Work Practice); or(4) minor modifications to these test methods approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.325 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3722; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective June 24, 2010, 35 TexReg 5293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.326"><num value="115.326">§115.326</num><heading>Recordkeeping Requirements</heading><content>For Gregg, Nueces, and Victoria Counties, the owner or operator of a petroleum refinery shall have the following recordkeeping requirements.(1) The owner or operator shall submit to the executive director a monitoring program plan. This plan must contain, at a minimum, a list of the refinery units and the quarter that the unit will be monitored, a copy of the log book format, and the make and model of the monitoring equipment to be used. If the owner or operator elects to use the alternative work practice in §115.358 of this title (relating to Alternative Work Practice), the owner or operator must update and resubmit the plan to the executive director. The updated plan must also:(A) identify which units are monitored according to the alternative work practice; and(B) include the frequency of monitoring under the alternative work practice.(2) The owner or operator shall maintain a leaking-components monitoring log for all leaks of more than 10,000 parts per million by volume (ppmv) of volatile organic compound detected by the monitoring program required by §115.324 of this title (relating to Inspection Requirements). If the owner or operator elects to use the alternative work practice in §115.358 of this title, the log must also be maintained for all leaks detected using the alternative work practice. This log must contain, at a minimum, the following data:(A) the name of the process unit where the component is located;(B) the type of component (e.g., valve or seal);(C) the tag number of the component;(D) the date the component was monitored;(E) the results of the monitoring (in ppmv), except for components monitored according to the alternative work practice in §115.358 of this title, which must be maintained according to paragraph (4) of this section;(F) a record of the calibration of the monitoring instrument, except for the daily instrument check specified in the alternative work practice in §115.358 of this title, which must be maintained according to paragraph (4) of this section;(G) if a component is found leaking:(i) the date that a leaking component is discovered;(ii) the date that a first attempt at repair was made to a leaking component;(iii) the date that a leaking component is repaired;(iv) the date and instrument reading of the recheck procedure after a leaking component is repaired; and(v) those leaks that cannot be repaired until turnaround and the date that the leaking component is placed on the shutdown list;(H) the total number of components checked and the total number of components found leaking; and(I) the test method used (Method 21, sight/sound/smell, or the alternative work practice in §115.358 of this title).(3) The owner or operator shall retain copies of the monitoring log for a minimum of five years after the date that the record was made or the report prepared.(4) If an owner or operator elects to use the alternative work practice in §115.358 of this title, the following records must be maintained in addition to the records required by paragraphs (1) - (3) of this section.(A) The owner or operator shall maintain a list of each component that is monitored according to the alternative work practice in §115.358 of this title.(B) The owner or operator shall maintain records of the detection sensitivity level selected from the table in §115.358(e)(1) of this title.(C) The owner or operator shall maintain records of the analysis to determine the component in contact with the lowest mass fraction of chemicals that are detectable, as required by the daily instrument check procedure referenced in §115.358(c)(2) of this title.(D) The owner or operator shall maintain records of the technical basis for the mass fraction of detectable chemicals used for the daily instrument check procedure referenced in §115.358(c)(2) of this title.(E) The owner or operator shall maintain records of each daily instrument check required by §115.358(c)(2) of this title. These records include:(i) the flow meter reading of the leak used in the daily instrument check and the distance from which the leak was imaged;(ii) a video record, with a date and time stamp, of the daily instrument check for each configuration and operator of the optical gas imaging instrument used during monitoring; and(iii) the name of each operator performing the daily instrument check.(F) The owner or operator shall maintain records of the leak survey results as follows for all components that the owner or operator monitors using the alternative work practice in §115.358 of this title.(i) A video record must be used to document the leak survey results and the results of the recheck to verify the leak has been repaired, if the alternative work practice in §115.358 of this title is used to perform the recheck. The video record must meet the following requirements.(I) The video record must include a time and date stamp for each monitoring event.(II) Each component must be identifiable in the video record.(ii) The records must include the name of each operator performing the leak survey for each monitoring event.(G) The owner or operator shall maintain records of the annual Method 21 screening required by §115.358(f) of this title, including:(i) the components screened according to Method 21;(ii) the concentration measured according to Method 21;(iii) the date and time of the Method 21 screening; and(iv) the calibrations required by Method 21.(H) The owner or operator shall maintain records of the training required by §115.358(h) of this title.(I) The owner or operator shall maintain records of the optical gas imaging instrument manufacturer's operating parameters.(5) The owner or operator shall maintain all monitoring records for at least five years and make them available for review upon request by authorized representatives of the executive director, United States Environmental Protection Agency, or local air pollution control agencies with jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §115.326 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective June 24, 2010, 35 TexReg 5293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.327"><num value="115.327">§115.327</num><heading>Exemptions</heading><content>For all affected persons in Gregg, Nueces, and Victoria Counties, the following exemptions shall apply.(1) Valves with a nominal size of two inches (five centimeters (cm)) or less are exempt from the requirements of this division (relating to Fugitive Emission Control in Petroleum Refineries in Gregg, Nueces, and Victoria Counties), provided allowable emissions at any refinery from sources affected by this division after controls are applied with exemptions will not exceed by more than 5.0% such allowable emissions with no exemptions. Any person claiming an exemption for valves two inches (five cm) nominal size or smaller under this section shall, at the time he provides his control plan, also provide the following information:(A) identification of valves or classes of valves to be exempted;(B) an estimate of uncontrolled emissions from exempted valves, and an estimate of emissions if controls were applied, plus an explanation of how the estimates were derived; and(C) an estimate of the total volatile organic compound (VOC) emissions within the refinery from sources affected by §115.322 of this title (relating to Control Requirements), §115.324 of this title (relating to Inspection Requirements), and §115.326 of this title (relating to Recordkeeping Requirements) after controls are applied and assuming no exemptions for small valves, plus an explanation of how the estimate was derived.(2) Components which contact a process fluid that contains less than 10% VOC by weight are exempt from the requirements of this division.(3) Components which contact a process liquid containing a VOC having a true vapor pressure equal to or less than 0.147 pounds per square inch absolute (psia) (1.013 kPa) at 68 degrees Fahrenheit (20 degrees Celsius) are exempt from the requirements of §115.324 of this title if the components are inspected visually according to the inspection schedules specified within this same section.(4) Petroleum refineries or individual process units in a temporary nonoperating status shall submit a plan for compliance with the provisions of this division, as soon as practicable, but no later than one month before the process unit is scheduled for start-up and be in compliance as soon as practicable, but no later than three months after start-up. All petroleum refineries affected by this section shall notify the executive director of any nonoperating refineries or individual process units when they are shut down and dates of any start-ups as they occur.(5) Pressure relief devices connected to an operating flare header, components in continuous vacuum service, storage tank valves, and valves that are not externally regulated (such as in-line check valves) are exempt from the monitoring requirement of §115.324 of this title.(6) Compressors in hydrogen service are exempt from the requirements of §115.324 of this title if the owner or operator demonstrates that the percent hydrogen content can be reasonably expected to always exceed 50% by volume.</content><note type="source"><p>Source Note: The provisions of this §115.327 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3722; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.329"><num value="115.329">§115.329</num><heading>Counties and Compliance Schedules</heading><content>All affected persons in Gregg, Nueces, and Victoria Counties shall continue to comply with applicable sections of this division (relating to Fugitive Emission Control in Petroleum Refineries in Gregg, Nueces, and Victoria Counties) as required by §115.930 of this title (relating to Compliance Dates).</content><note type="source"><p>Source Note: The provisions of this §115.329 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3722; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective August 29, 2001, 26 TexReg 6303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.352"><num value="115.352">§115.352</num><heading>Control Requirements</heading><content>For the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), no person shall operate a petroleum refinery; a synthetic organic chemical, polymer, resin, or methyl-tert-butyl ether manufacturing process; or a natural gas/gasoline processing operation, as defined in §115.10 of this title, without complying with the following requirements.(1) Except as provided in paragraph (2) of this section, no component may be allowed to have a volatile organic compound (VOC) leak for more than 15 calendar days after the leak is found that meets the following:(A) for all components except pump seals and compressor seals, a screening concentration greater than 500 parts per million by volume (ppmv) above background as methane, or the dripping or exuding of process fluid based on sight, smell, or sound;(B) for pump seals and compressor seals, a screening concentration greater than 10,000 ppmv above background as methane, or the dripping or exuding of process fluid based on sight, smell, or sound; and(C) if the owner or operator elects to use the alternative work practice in §115.358 of this title (relating to Alternative Work Practice), any leak detected as defined in §115.358 of this title, including any leak detected using the alternative work practice on a component that is subject to the requirements of this division (relating to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas) but not specifically selected for alternative work practice monitoring.(2) A first attempt at repair must be made no later than five calendar days after the leak is found and the component must be repaired no later than 15 calendar days after the leak is found, unless the repair of the component would require a unit shutdown that would create more emissions than the repair would eliminate. A component in gas/vapor or light liquid service is considered to be repaired when it is monitored with an instrument using Method 21 in 40 Code of Federal Regulations (CFR) Part 60, Appendix A-7 (October 17, 2000) and shown to no longer have a leak after adjustments or alterations to the component. A component in heavy liquid service is considered to be repaired when it is inspected by audio, visual, and olfactory means and shown to no longer have a leak after adjustments or alterations to the component. For any component that the owner or operator monitors using the alternative work practice in §115.358 of this title, the component is considered repaired when the component is demonstrated to no longer have a leak after adjustments or alterations to the component by either screening using an optical gas imaging instrument as specified in §115.358 of this title or by the normal monitoring method required under this division. If the repair of a component within 15 days after the leak is detected would require a process unit shutdown that would create more emissions than the repair would eliminate, the repair may be delayed until the next scheduled process unit shutdown.(A) Delay of repair beyond a process unit shutdown will be allowed for a component if that component is isolated from the process and does not remain in VOC service.(B) Valves that can be safely repaired without a process unit shutdown may not be placed on the shutdown list.(C) Delay of repair will be allowed for pumps, compressors, or agitators if the repair is completed as soon as practicable, but not later than six months after the leak was detected, and the repair requires replacing the existing seal design with:(i) a dual mechanical seal system that includes a barrier fluid system;(ii) a system that is designed with no externally actuated shaft penetrating the housing; or(iii) a closed-vent system and control device that meets the requirements of §115.122(a)(2) of this title (relating to Control Requirements).(3) All leaking components, as defined in paragraph (1) of this section, that cannot be repaired until a process unit shutdown must be identified for such repair by tagging. The executive director may require an early process unit shutdown or other appropriate action based on the number and severity of tagged leaks awaiting a process unit shutdown.(4) No valves may be installed or operated at the end of a pipe or line containing VOC unless the pipe or line is sealed with a second valve, a blind flange, or a tightly-fitting plug or cap. The sealing device may be removed only while a sample is being taken or during maintenance operations, and when closing the line, the upstream valve must be closed first.(5) Construction of new and reworked piping, valves, and pump and compressor systems must conform to applicable American National Standards Institute, American Petroleum Institute, American Society of Mechanical Engineers, or equivalent codes.(6) New and reworked underground process pipelines must contain no buried valves such that fugitive emission monitoring is rendered impractical.(7) To the extent that good engineering practice will permit, new and reworked components must be so located to be reasonably accessible for leak-checking during plant operation. A difficult-to-monitor component is a component that cannot be inspected without elevating the monitoring personnel more than two meters above a permanent support surface or that requires a permit for confined space entry as defined in 29 CFR §1910.146 (December 1, 1998). Difficult-to-monitor components must be identified in a list to be made available upon request as specified in §115.356(5) of this title (relating to Recordkeeping Requirements).(8) New and reworked piping connections must be welded, flanged, or consist of pressed and permanently formed metal-to-metal seals. Screwed connections are permissible only on new piping smaller than two inches in diameter.(9) For pressure relief valves installed in series with a rupture disk, pin, second relief valve, or other similar leak-tight pressure relief component, a pressure gauge or an equivalent device or system must be installed between the relief valve and the other pressure relief component to monitor for leakage past the first component. When leakage is detected past the first component, that component must be repaired or replaced at the earliest opportunity, but no later than the next process unit shutdown. Equivalent devices or systems must be identified in a list to be made available upon request as specified in §115.356(5) of this title and must have been approved by the methods required by §115.353 of this title (relating to Alternate Control Requirements).(10) Any petroleum refinery; synthetic organic chemical, polymer, resin, or methyl-tert-butyl ether manufacturing process; or natural gas/gasoline processing operation in the Houston-Galveston-Brazoria area in which a highly-reactive volatile organic compound, as defined in §115.10 of this title, is a raw material, intermediate, final product, or in a waste stream is subject to the requirements of Subchapter H of this chapter (relating to Highly-Reactive Volatile Organic Compounds) in addition to the applicable requirements of this division.</content><note type="source"><p>Source Note: The provisions of this §115.352 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg11705;amended to be effective June 24, 2010, 35 TexReg 5293; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.353"><num value="115.353">§115.353</num><heading>Alternate Control Requirements</heading><content>(a) For all affected persons in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), any alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division (relating to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas) may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.(b) The owner or operator of a site subject to the requirements of this division may use the alternative work practice in §115.358 of this title (relating to Alternative Work Practice) as an optional alternative to hydrocarbon gas analyzer monitoring required under this division.</content><note type="source"><p>Source Note: The provisions of this §115.353 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective June 24, 2010, 35 TexReg 5293; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.354"><num value="115.354">§115.354</num><heading>Monitoring and Inspection Requirements</heading><content>All affected persons in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), shall conduct a monitoring and inspection program consistent with the following provisions.(1) Monitor yearly (with a hydrocarbon gas analyzer) the emissions from all:(A) process drains that receive or contact affected volatile organic compound wastewater streams as defined in Subchapter B, Division 4 of this chapter (relating to Industrial Wastewater);(B) difficult-to-monitor components as identified in §115.352(7) of this title (relating to Control Requirements) that would otherwise be subject to more frequent monitoring under paragraph (2) of this section; and(C) unsafe-to-monitor components that would otherwise be subject to more frequent monitoring. An unsafe-to-monitor component is a component that the owner or operator determines is unsafe to monitor because monitoring personnel would be exposed to an immediate danger as a consequence of conducting the monitoring. Components that are unsafe to monitor must be identified in a list made available upon request as specified in §115.356(5) of this title (relating to Recordkeeping Requirements). If an unsafe-to-monitor component is not considered safe to monitor within a calendar year, then it must be monitored as soon as possible during times that are safe to monitor.(2) Monitor each calendar quarter (with a hydrocarbon gas analyzer) the screening concentration from all:(A) compressor seals;(B) pump seals;(C) accessible valves; and(D) pressure relief valves in gaseous service.(3) Inspect weekly, by visual, audio, and/or olfactory means, all flanges, excluding flanges that are monitored at least once each calendar year using Method 21 in 40 Code of Federal Regulations Part 60, Appendix A-7 (October 17, 2000) and excluding flanges that are unsafe to inspect. Flanges that are unsafe to inspect must be identified in a list made available upon request. If an unsafe-to-inspect flange is not considered safe to inspect within the required weekly time frame, then it must be inspected as soon as possible during a time that it is safe to inspect.(4) Monitor (with a hydrocarbon gas analyzer) emissions from any relief valve that has vented to the atmosphere within 24 hours of the release, excluding relief valves that are unsafe to monitor or difficult to monitor. Relief valves that are unsafe to monitor must be monitored as soon as possible after relieving during times that are safe to monitor. Relief valves that are difficult to monitor must be monitored within 15 days after a release.(5) Upon the detection of a leaking component, affix to the leaking component a weatherproof and readily visible tag, bearing an identification number and the date the leak was detected. This tag must remain in place until the leaking component is repaired. Tagging of difficult-to-monitor leaking components may be done by reference tagging. The reference tag should be located as close as possible to the leaking component and should clearly identify the leaking component and its location.(6) The monitoring schedule of paragraphs (1) - (3) of this section may be modified to require an increase in the frequency of monitoring in a given process area if the executive director determines that there is an excessive number of leaks in that process area.(7) After completion of the required quarterly valve monitoring for a period of at least two years, the operator of a petroleum refinery; synthetic organic chemical, polymer, resin, or methyl-tert-butyl ether manufacturing process; or a natural gas/gasoline processing operation, as defined in §115.10 of this title, may request in writing to the executive director that the valve monitoring schedule be revised based on the percent of valves leaking. The percent of valves leaking must be determined by dividing the sum of valves leaking during the current monitoring period and valves for which repair has been delayed (including valves that have been classified as non-repairable under §115.357(8) of this title (relating to Exemptions)) by the total number of valves subject to the requirements. This request must include all data that have been developed to justify the following modifications in the monitoring schedule.(A) After two consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0%, an owner or operator may begin to skip one of the quarterly leak detection periods for the valves in gas/vapor and light liquid service.(B) After five consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0%, an owner or operator may begin to skip three of the quarterly leak detection periods for the valves in gas/vapor and light liquid service.(8) Alternate monitoring schedules approved before November 15, 1996, under §§115.324(a)(8)(A), 115.334(3)(A), and 115.344(3)(A) of this title (relating to Inspection Requirements), as in effect December 3, 1993, are approved monitoring schedules for the purposes of paragraph (7) of this section.(9) All component monitoring must occur when the component is in contact with process material and the process unit is in service. If a unit is not operating during the required monitoring period but a component in that unit is in contact with process fluid that is circulating or under pressure, then that component is considered to be in service and is required to be monitored. Valves must be in gaseous or light liquid service to be considered in the total valve count for alternate valve monitoring schedules of paragraph (7) of this section.(10) Monitored screening concentrations must be recorded for each component in gaseous or light liquid service. Notations such as "pegged," "off scale," "leaking," "not leaking," or "below leak definition" may not be substituted for hydrocarbon gas analyzer results. For readings that are higher than the upper end of the scale (i.e., pegged) even when using the highest scale setting or a dilution probe, record a default pegged value of 100,000 parts per million by volume. This requirement does not apply to monitoring using an optical gas imaging instrument in accordance with §115.358 of this title (relating to Alternative Work Practice).(11) All new connectors must be checked for leaks within 30 days of being placed in volatile organic compound service by monitoring with a hydrocarbon gas analyzer for components in light liquid and gas service and by using visual, audio, and/or olfactory means for components in heavy liquid service. Components that are unsafe to monitor or inspect are exempt from this requirement if they are monitored or inspected as soon as possible during times that are safe to monitor.(12) All exemptions for valves with a nominal size of two inches or less expired on July 31, 1992 (final compliance date).(13) For any components that the owner or operator elects to use the alternative work practice in §115.358 of this title, the following provisions apply.(A) The frequency for monitoring any components listed in this section must be the frequency determined according to §115.358 of this title, except as specified in subparagraph (C) of this paragraph.(B) The alternative monitoring schedules allowed under paragraphs (7) and (8) of this section are not allowed.(C) If the owner or operator elects to use the alternative work practice in §115.358 of this title to satisfy the hydrocarbon gas analyzer monitoring requirements of paragraphs (4) or (11) of this section, the time limitations specified in paragraphs (4) and (11) of this section on performing the monitoring continue to apply.(D) If the component is within a class of equipment (e.g., valves, flanges, etc.) that the owner or operator has elected to use the alternative work practice in §115.358 of this title and the component meets all other conditions specified in §115.358 of this title for acceptable use of the alternative work practice, then the component may not be classified as difficult to monitor under §115.352(7) of this title unless in order to image the component as required by §115.358 of this title the monitoring personnel would have to be elevated more than two meters above a permanent support surface or would require a permit for confined space entry as defined in 29 Code of Federal Regulations §1910.146 (December 1, 1998). If the component does qualify as difficult to monitor using the alternative work practice, the owner or operator may use either Method 21 or the alternative work practice at the monitoring frequency specified in paragraph (1) of this section. Any components classified as difficult to monitor under the alternative work practice must be identified as such in the list required in §115.352(7) of this title.(E) The owner or operator that elects to use the alternative work practice in §115.358 of this title may still classify a component as unsafe to monitor as allowed under paragraph (1)(C) of this section if the component cannot be safely monitored using either a hydrocarbon gas analyzer or the alternative work practice. The owner or operator may use either Method 21 or the alternative work practice at the monitoring frequency specified in paragraph (1) of this section. Any components classified as unsafe to monitor under the alternative work practice must be identified as such in the list required in paragraph (1)(C) of this section.(F) If the executive director determines that there is an excessive number of leaks in any given process area that the alternative work practice in §115.358 of this title is used, the executive director may require an increase in the frequency of monitoring under the alternative work practice in that process area.</content><note type="source"><p>Source Note: The provisions of this §115.354 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg 11705; amended to be effective June24,2010, 35 TexReg 5293; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.355"><num value="115.355">§115.355</num><heading>Approved Test Methods</heading><content>For all affected persons in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), compliance with this division (relating to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas) must be determined by applying the following test methods, as appropriate:(1) Method 21 in 40 Code of Federal Regulations Part 60, Appendix A-7 (October 17, 2000) for determining volatile organic compound leaks;(2) determination of true vapor pressure using American Society for Testing and Materials Test Methods D323, D2879, D4953, D5190, or D5191 for the measurement of Reid vapor pressure, adjusted for 68 degrees Fahrenheit (20 degrees Celsius) in accordance with American Petroleum Institute Publication 2517, Third Edition, 1989;(3) the alternative work practice in §115.358 of this title (relating to Alternative Work Practice);(4) minor modifications to these test methods approved by the executive director; or(5) equivalent determinations using published vapor pressure data or accepted engineering calculations.</content><note type="source"><p>Source Note: The provisions of this §115.355 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective December 23, 2004, 29 TexReg 11705; amended to be effective June 24, 2010, 35 TexReg 5293; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.356"><num value="115.356">§115.356</num><heading>Recordkeeping Requirements</heading><content>All affected persons in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), shall maintain the following records, either electronically or in hard copy form, except for any video records required by paragraph (4) of this section, which must be maintained electronically.(1) The owner or operator shall maintain records identifying each process unit subject to fugitive monitoring in accordance with this division (relating to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas) including, at a minimum, the following information:(A) the name of each process unit;(B) a scale plot plan showing the location of each process unit;(C) process flow diagrams for each process unit showing the general process streams and major equipment on which the components are located; and(D) the expected volatile organic compound emissions if the process unit is shut down for repair of components or other equipment, including:(i) the total emissions;(ii) the calculations used; and(iii) engineering assumptions applied.(2) The owner or operator shall maintain records on components and process areas that contain, at a minimum, the following data:(A) the name of the process unit where the component is located;(B) the type of component (e.g., pump, compressor, valve, pressure relief valve, etc);(C) all data collected in accordance with the monitoring and inspection requirements of §115.354 of this title (relating to Monitoring and Inspection Requirements) for each component required to be monitored with a hydrocarbon gas analyzer;(D) the calibration of the monitoring instrument;(E) if a component is found leaking, if applicable:(i) the component identification and method of leak determination (Method 21 in 40 Code of Federal Regulations Part 60, Appendix A-7 (October 17, 2000), the alternative work practice in §115.358 of this title (relating to Alternative Work Practice), sight/sound/smell, or inert gas or hydraulic testing);(ii) the date that a leaking component is discovered;(iii) the date that a first attempt at repair was made to a leaking component;(iv) the date that a leaking component is repaired;(v) the date and instrument reading of the recheck procedure after a leaking component is repaired;(vi) the date that the leaking component is placed on the shutdown list; and(vii) the date that the leaking component was taken out of service; and(F) records of any audio, visual, and olfactory inspections of connectors, but only if a leak is detected.(3) The owner or operator shall maintain records by process unit identifying and justifying each:(A) unsafe-to-monitor component and unsafe-to-inspect flange;(B) difficult-to-monitor component; and(C) exemption by component claimed under §115.357 of this title (relating to Exemptions). The components may be identified by one or more of the following methods:(i) a plant site plan;(ii) color coding;(iii) a written or electronic database;(iv) designation of process unit boundaries;(v) some form of weatherproof identification; or(vi) process flow diagrams that exhibit sufficient detail to identify major pieces of equipment, including major process flows to, from, and within a process unit. Major equipment includes, but is not limited to, columns, reactors, pumps, compressors, drums, tanks, and exchangers.(4) If an owner or operator elects to use the alternative work practice in §115.358 of this title, the following records must be maintained in addition to the records required by paragraphs (1) - (3) of this section.(A) The owner or operator shall maintain a list of all components that are monitored according to the alternative work practice in §115.358 of this title.(B) The owner or operator shall maintain records of the detection sensitivity level selected from the table in §115.358(e)(1) of this title.(C) The owner or operator shall maintain records of the analysis to determine the component in contact with the lowest mass fraction of chemicals that are detectable, as required by the daily instrument check procedure referenced in §115.358(c)(2) of this title.(D) The owner or operator shall maintain records of the technical basis for the mass fraction of detectable chemicals used for daily instrument check procedure referenced in §115.358(c)(2) of this title.(E) The owner or operator shall maintain records of each daily instrument check required by §115.358(c)(2) of this title. These records include:(i) the flow meter reading of the leak used in the daily instrument check and the distance from which the leak was imaged;(ii) a video record, with a date and time stamp, of the daily instrument check for each configuration and operator of the optical gas imaging instrument used during monitoring; and(iii) the name of each operator performing the daily instrument check.(F) The owner or operator shall maintain records of the leak survey results as follows for all components that the owner or operator monitors using the alternative work practice in §115.358 of this title.(i) A video record must be used to document the leak survey results and the results of the recheck to verify the leak has been repaired, if the alternative work practice in §115.358 of this title is used to perform the recheck. The video record must meet the following requirements.(I) The video record must include a time and date stamp for each monitoring event.(II) Each component must be identifiable in the video record.(ii) The records must include the name of each operator performing the leak survey for each monitoring event.(G) The owner or operator shall maintain records of the annual Method 21 screening required by §115.358(f) of this title, including:(i) the components screened according to Method 21;(ii) the concentration measured according to Method 21;(iii) the date and time of the Method 21 screening; and(iv) the calibrations required by Method 21.(H) The owner or operator shall maintain records of the training required by §115.358(h) of this title.(I) The owner or operator shall maintain records of the optical gas imaging instrument manufacturer's operating parameters.(5) The owner or operator shall maintain all monitoring records for at least five years and make them available for review upon request by authorized representatives of the executive director, United States Environmental Protection Agency, or local air pollution control agencies with jurisdiction, except that the five-year record retention requirement does not apply to records generated before December 31, 2000.</content><note type="source"><p>Source Note: The provisions of this §115.356 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective December 23, 2004, 29 TexReg 11705; amended to be effective June 24, 2010, 35 TexReg5293; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.357"><num value="115.357">§115.357</num><heading>Exemptions</heading><content>For all affected persons in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), the following exemptions apply.(1) Components that contact a process fluid containing volatile organic compounds (VOC) having a true vapor pressure equal to or less than 0.044 pounds per square inch absolute (psia) (0.3 kiloPascals) at 68 degrees Fahrenheit (20 degrees Celsius) are exempt from the instrument monitoring (with a hydrocarbon gas analyzer) requirements of §115.354(1) and (2) of this title (relating to Monitoring and Inspection Requirements) if the components are inspected by visual, audio, and/or olfactory means according to the inspection schedules specified in §115.354(1) and (2) of this title.(2) Conservation vents or other devices on atmospheric storage tanks that are actuated either by a vacuum or a pressure of no more than 2.5 pounds per square inch gauge (psig), pressure relief valves equipped with a rupture disk or venting to a control device, components in continuous vacuum service, and valves that are not externally regulated (such as in-line check valves) are exempt from the requirements of this division, except that each pressure relief valve equipped with a rupture disk must comply with §115.352(9) and §115.356(3)(C) of this title (relating to Control Requirements and Recordkeeping Requirements).(3) Compressors in hydrogen service are exempt from the requirements of §115.354 of this title if the owner or operator demonstrates that the percent hydrogen content can be reasonably expected to always exceed 50.0% by volume.(4) All pumps and compressors that are equipped with a shaft sealing system that prevents or detects emissions of VOC from the seal are exempt from the monitoring requirement of §115.354 of this title. These seal systems may include, but are not limited to, dual pump seals with barrier fluid at higher pressure than process pressure, seals degassing to vent control systems kept in good working order, or seals equipped with an automatic seal failure detection and alarm system. Submerged pumps or sealless pumps (including, but not limited to, diaphragm, canned, or magnetic driven pumps) may be used to satisfy the requirements of this paragraph.(5) Reciprocating compressors and positive displacement pumps used in natural gas/gasoline processing operations are exempt from the requirements of this division except §115.356(3)(C) of this title.(6) Components at a petroleum refinery or synthetic organic chemical, polymer, resin, or methyl-tert-butyl ether manufacturing process, that contact a process fluid that contains less than 10% VOC by weight and components at a natural gas/gasoline processing operation that contact a process fluid that contains less than 1.0% VOC by weight are exempt from the requirements of this division except §115.356(3)(C) of this title.(7) Plant sites covered by a single account number with less than 250 components in VOC service are exempt from the requirements of this division except §115.356(3)(C) of this title.(8) Components in ethylene, propane, or propylene service, not to exceed 5.0% of the total components, may be classified as non-repairable beyond the second repair attempt at 500 parts per million by volume (ppmv). These components will remain in the fugitive monitoring program and be repaired no later than 15 calendar days after the concentration of VOC detected via Method 21 in 40 Code of Federal Regulations (CFR) Part 60, Appendix A-7 (October 17, 2000) exceeds 10,000 ppmv. For the purposes of this division, components that contact a process fluid with greater than 85% ethylene, propane, or propylene by weight are considered in ethylene, propane, or propylene service, respectively. If the owner or operator elects to use the alternative work practice in §115.358 of this title (relating to Alternative Work Practice), this exemption may not be claimed for any component that is monitored according to the alternative work practice unless the owner or operator demonstrates the leak concentration does not exceed 10,000 ppmv using Method 21 and the owner or operator continues to monitor the component using both the alternative work practice and Method 21 according to the frequency specified in §115.358 of this title.(9) The following valves are exempt from the requirements of §115.352(4) of this title:(A) pressure relief valves;(B) open-ended valves or lines in an emergency shutdown system that are designed to open automatically in the event of an emissions event;(C) open-ended valves or lines containing materials that would autocatalytically polymerize or would present an explosion, serious overpressure, or other safety hazard if capped or equipped with a double block and bleed system; and(D) valves rated greater than 10,000 psig.(10) Instrumentation systems, as defined in 40 CFR §63.161 (January 17, 1997), that meet 40 CFR §63.169 (June 20, 1996) are exempt from the requirements of this division except §115.356(3)(C) of this title.(11) Sampling connection systems, as defined in 40 CFR §63.161 (January 17, 1997), that meet the requirements of 40 CFR §63.166(a) and (b) (June 20, 1996) are exempt from the requirements of this division except §115.356(3)(C) of this title.(12) Components that are insulated, making them inaccessible to monitoring with a hydrocarbon gas analyzer, are exempt from the monitoring requirements of §115.354(1), (2), and (4) of this title.(13) Components/systems that contact a process fluid containing VOC having a true vapor pressure equal to or less than 0.002 psia at 68 degrees Fahrenheit are exempt from the requirements of this division except §115.356(3)(C) of this title.(14) In the Houston-Galveston-Brazoria area, the requirements of Subchapter H of this chapter (relating to Highly-Reactive Volatile Organic Compounds) may apply to components that qualify for one or more of the exemptions in paragraphs (1) - (11) of this section at any petroleum refinery; synthetic organic chemical, polymer, resin, or methyl-tert-butyl ether manufacturing process; or natural gas/gasoline processing operation in which a highly-reactive volatile organic compound, as defined in §115.10 of this title (relating to Definitions), is a raw material, intermediate, final product, or in a waste stream.(15) Beginning on the compliance date in §115.183, any natural gas/gasoline processing operation that is subject to and complies with the compliance requirements of Subchapter B, Division 7 of this chapter (relating to Oil and Natural Gas in Ozone Nonattainment Areas) in the Bexar County, Dallas-Fort Worth, or Houston-Galveston-Brazoria areas is exempt from all requirements in this division.</content><note type="source"><p>Source Note: The provisions of this §115.357 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg 11705; amendedto be effective June 24, 2010, 35 TexReg 5293; amended to be effective July 21, 2021, 46 TexReg 4313; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.358"><num value="115.358">§115.358</num><heading>Alternative Work Practice</heading><content>(a) Alternative work practice applicability. The owner or operator of a site subject to this division (relating to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas) or any other division of this chapter (relating to Control of Air Pollution from Volatile Organic Compounds), when specifically allowed by that division, may use the alternative work practice of this section as an optional alternative to hydrocarbon gas analyzer monitoring required under the applicable division. The alternative work practice described in this section may only be used for components with a leak definition specified by a division of this chapter of 500 parts per million by volume (ppmv) or greater.(b) Definitions. For the purposes of this section, the following terms have the following meanings.(1) Imaging--A means or process of making emissions visible that may otherwise be invisible to the naked eye.(2) Optical gas imaging instrument--An instrument that makes emissions visible that may otherwise be invisible to the naked eye.(3) Repair--The adjustment or alteration of a component in order to eliminate a leak.(4) Leak--A leak is:(A) any emissions imaged by an optical gas imaging instrument, as defined in paragraph (2) of this subsection;(B) indications of liquids dripping;(C) indications by a sensor that a seal or barrier fluid system has failed; or(D) screening results using Method 21 in 40 Code of Federal Regulations (CFR) Part 60, Appendix A-7 (October 17, 2000) that exceed the leak definition specified for the component by the applicable division of this chapter.(c) Optical gas imaging instrument specifications.(1) Any optical gas imaging instrument used for the purposes of this section must meet the requirements of 40 CFR §60.18(i)(1) (December 22, 2008).(2) The owner or operator shall perform and the optical gas imaging instrument must meet all requirements of the daily instrument check as specified in 40 CFR §60.18(i)(2) (December 22, 2008). In addition, the daily instrument check must be performed by each optical gas imaging instrument operator that will be performing imaging for that day.(d) Leak survey procedure. The owner or operator shall operate the optical gas imaging instrument to image every component selected for the alternative work practice in this section in accordance with the instrument manufacturer's operating parameters. All emissions imaged by the optical gas imaging instrument are considered to be leaks and subject to repair in accordance with requirements of the applicable division of this chapter. All emissions visible to the naked eye during the leak survey are also considered to be leaks and subject to repair in accordance with the applicable division of this chapter. The operator of the optical gas imaging instrument shall not image a component during the leak survey at a distance greater than the distance demonstrated by that same instrument operator during the daily instrument check for the configuration of the optical gas imaging instrument used in the leak survey.(e) Frequency. The owner or operator that elects to use the alternative work practice in this section shall perform the leak surveys according to the following.(1) The frequency for performing leak surveys on each component must be determined by selecting one of the frequencies in the following table, in lieu of the monitoring frequency specified for the component in the applicable division of this chapter.Attached Graphic(2) Alternative monitoring frequencies for good performance (i.e., skip periods) are not allowed for any component that the owner or operator chooses to monitor using the alternative work practice. Alternative frequency for other purposes may be used when specifically allowed by a division of this chapter (e.g., difficult-to-monitor components).(f) Annual Method 21 screening. Each component that an owner or operator elects to use the alternative work practice in this section must be monitored once per calendar year using Method 21 in 40 CFR Part 60, Appendix A-7 (October 17, 2000) at the leak definition required in the applicable division of this chapter. The owner or operator may choose the specific monitoring period for the annual Method 21 monitoring; however, subsequent Method 21 monitoring must be conducted every 12 months from the initial period.(g) Notification. The owner or operator that elects to use the alternative work practice in this section shall provide written notification to the appropriate regional office at least 30 days prior to implementing use of the alternative work practice.(1) The written notification must include:(A) identification of each unit that the alternative work practice will be used for;(B) identification of the specific categories of components that the alternative work practice will be used for (e.g., valves, flanges, etc.);(C) the total number of components monitored according to the alternative work practice in each of the categories identified as required by subparagraph (B) of this paragraph; and(D) the date that the owner or operator will begin using the alternative work practice.(2) After the initial notification required under this subsection, the owner or operator is required to resubmit the notification to the appropriate regional office only if use of the alternative work practice is expanded to a process unit not included in the initial notification. Renotification must be submitted within 30 days after implementing use of the alternative work practice in the new process unit.(h) Operator training. Any person that performs the alternative work practice in this section shall comply with the following minimum training requirements.(1) The operator of the optical gas imaging instrument shall receive a minimum of 24 hours of initial training on the specific make and model of optical gas imaging instrument before using the instrument for the purposes of the alternative work practice.(2) Operators using optical gas imaging instruments for the alternative work practice shall comply with one of the following requirements for on-going training purposes.(A) Operators shall attend an annual eight-hour refresher training class on the optical gas imaging instrument used for the alternative work practice. Operators meeting the requirements of paragraph (3) of this subsection meet the requirements of this subparagraph.(B) Operators shall maintain a minimum of 100 hours per 12 months of hands-on operational experience with the make and model of optical gas imaging instrument used for the alternative work practice. Operators electing this option shall maintain a log of the operator's operational experience with the optical gas imaging instrument. (3) Prior to using a make and model of optical gas imaging instrument for the alternative work practice in this section on which they have not been trained, operators who have been trained according to paragraph (1) of this subsection shall attend an eight-hour combination update and annual refresher training class on the new make and model of optical gas imaging instrument.</content><note type="source"><p>Source Note: The provisions of this §115.358 adopted to be effective June 24, 2010, 35 TexReg 5293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scD/s115.359"><num value="115.359">§115.359</num><heading>Counties and Compliance Schedules</heading><content>(a) In Brazoria, Chambers, Collin, El Paso, Dallas, Denton, Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery, Orange, Tarrant, and Waller Counties, the compliance date has passed and the owner or operator shall continue to comply with this division.(b) The owner or operator of each affected source in Ellis, Johnson, Kaufman, Parker, and Rockwall Counties shall comply with this division as soon as practicable, but no later than March 1, 2009.(c) The owner or operator of each affected source in Wise County shall comply with this division as soon as practicable, but no later than January 1, 2017.(d) The owner or operator of an affected source in Bexar, Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Parker, Rockwall, Tarrant, and Wise Counties that becomes subject to this division on or after the applicable date specified in subsections (a) - (c) and (e) of this section shall comply with the requirements in this division no later than 60 days after becoming subject.(e) The owner or operator of an affected source in the Bexar County area subject to the requirements of this division shall comply with the requirements of this division as soon as practicable, but no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §115.359 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg 11705; amended to be effective December 7,2006, 31 TexReg 9840; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c115/scE"><num value="E">SUBCHAPTER E</num><heading>SOLVENT-USING PROCESSES</heading><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.410"><num value="115.410">§115.410</num><heading>Applicability and Definitions</heading><content>(a) Applicability. The provisions of this division apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas as defined in §115.10 of this title (relating to Definitions) and in Bastrop, Caldwell, Comal, Gregg, Guadalupe, Hays, Nueces, Travis, Victoria, Williamson, and Wilson Counties to all persons using volatile organic compound-containing solvent for cold solvent degreasing processes, open-top vapor degreasing processes, and conveyorized degreasing processes. The provisions in §115.412(b) of this title (relating to Control Requirements) do not apply in the Dallas-Fort Worth area until the commission publishes notice in the Texas Register, as provided in §115.419(f) of this title (relating to Compliance Schedules), and the provisions of §115.412(c) of this title do not apply in the Houston-Galveston-Brazoria area until the commission publishes notice in the Texas Register, as provided in §115.419(g) of this title.(b) Definitions. Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382) or in §§3.2, 101.1, or 115.10 of this title (relating to Definitions), the terms in this division have the meanings commonly used in the field of air pollution control.</content><note type="source"><p>Source Note: The provisions of this §115.410 adopted to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.411"><num value="115.411">§115.411</num><heading>Exemptions</heading><content>(a) The following exemptions apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas and in Bastrop, Caldwell, Comal, Gregg, Guadalupe, Hays, Nueces, Travis, Victoria, Williamson, and Wilson Counties. The exemptions in this subsection are no longer available for an operation subject to §115.412(b) of this title (relating to Control Requirements) in the Dallas-Fort Worth area or §115.412(c) of this title in the Houston-Galveston-Brazoria area as of the compliance date specified in §115.419(f) or §115.419(g), respectively.(1) Any cold solvent cleaning system is exempt from the provisions of §115.412(a)(1)(B) of this title and may use an external drainage facility in place of an internal type drainage system, if the true vapor pressure of the solvent is less than or equal to 0.6 pounds per square inch absolute (psia) (4.1 kilo Pascals (kPa)) as measured at 100 degrees Fahrenheit (38 degrees Celsius) or if a cleaned part cannot fit into an internal drainage facility.(2) The following are exempt from the requirements of §115.412(a)(1)(E) of this title:(A) a cold solvent cleaning system for which the true vapor pressure of the solvent is less than or equal to 0.6 psia (4.1 kPa) as measured at 100 degrees Fahrenheit (38 degrees Celsius), provided that the solvent is not heated above 120 degrees Fahrenheit (49 degrees Celsius); and(B) remote reservoir cold solvent cleaners.(3) Any conveyorized degreaser with less than 20 square feet (ft2 ) (2 square meters (m2 )) of air/vapor interface is exempt from the requirement of §115.412(a)(3)(A) of this title.(4) An owner or operator who operates a remote reservoir cold solvent cleaner that uses solvent with a true vapor pressure equal to or less than 0.6 psia (4.1 kPa) measured at 100 degrees Fahrenheit (38 degrees Celsius) and that has a drain area less than 16 square inches (in2 ) (100 square centimeters (cm2 )) and who properly disposes of waste solvent in enclosed containers is exempt from §115.412(a)(1) of this title.(5) In Gregg, Nueces, and Victoria Counties, degreasing operations located on any property that can emit, when uncontrolled, a combined weight of volatile organic compounds (VOC) less than 550 pounds in any consecutive 24-hour period are exempt from the provisions of §115.412 of this title.(b) If the commission publishes notice in the Texas Register, as provided in §115.419(f) of this title for the Dallas-Fort Worth area and/or §115.419(g) of this title for the Houston-Galveston-Brazoria area, to require compliance with the contingency measure control requirements of §115.412(b) of this title for the Dallas-Fort-Worth area and/or §115.412(c) of this title for the Houston-Galveston-Brazoria area, then the following exemptions apply in the applicable area as of the compliance date specified in §115.419(f) or (g) of this title.(1) Any cold solvent cleaning system is exempt from the provisions of §115.412(a)(1)(B) of this title and may use an external drainage facility in place of an internal type drainage system if the VOC content of the solvent is less than or equal to 25 grams per liter (g/l) or if a cleaned part cannot fit into an internal drainage facility.(2) The following are exempt from the requirements of §115.412(a)(1)(E) of this title:(A) a cold solvent cleaning system for which the VOC content of the solvent is less than or equal to 25 g/l; and(B) remote reservoir cold solvent cleaners.(3) An owner or operator who operates a remote reservoir cold solvent cleaner that uses solvent with a VOC content that is less than or equal to 25 g/l and that has a drain area less than 16 (in2 ) (100 (cm2 )) and who properly disposes of waste solvent in enclosed containers is exempt from §115.412(a)(1) of this title.</content><note type="source"><p>Source Note: The provisions of this §115.411 adopted to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.412"><num value="115.412">§115.412</num><heading>Control Requirements</heading><content>(a) In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas as defined in §115.10 of this title (relating to Definitions) and in Gregg, Nueces, Victoria, Comal, Guadalupe, Wilson, Bastrop, Caldwell, Hays, Travis, and Williamson Counties, the following control requirements shall apply.(1) Cold solvent cleaning. No person shall own or operate a system utilizing a volatile organic compound (VOC) for the cold solvent cleaning of objects without the following controls.(A) A cover shall be provided for each cleaner which shall be kept closed whenever parts are not being handled in the cleaner. The cover shall be designed for easy one-handed operation if any of the following exists:(i) the true vapor pressure of the solvent is greater than 0.3 psia (2 kPa) as measured at 100 degrees Fahrenheit (38 degrees Celsius);(ii) the solvent is agitated; or(iii) the solvent is heated.(B) An internal cleaned-parts drainage facility, for enclosed draining under a cover, shall be provided for all cold solvent cleaners.(C) A permanent label summarizing the operating requirements in subparagraph (F) of this paragraph shall be attached to the cleaner in a conspicuous location near the operator.(D) If a solvent spray is used, it must be a solid fluid stream (not a fine, atomized, or shower-type spray) and at an operating pressure of ten psig or less as necessary to prevent splashing above the acceptable freeboard.(E) The system shall be equipped with a freeboard that provides a ratio equal to or greater than 0.7, or a water cover (solvent must be insoluble in and heavier than water). To determine the freeboard ratio, the freeboard height measurement is taken from the top of the degreaser to the top of the air/solvent level. This number is then divided by the smallest width measurement. The width measurement is taken at the smallest interior dimension. This dimension could be located at any point, from the top or opening of the unit to the air/solvent level.(F) The operating procedures shall be as follows.(i) Waste solvent shall not be disposed of or transferred to another party such that the waste solvent can evaporate into the atmosphere. Waste solvents shall be stored only in covered containers.(ii) The degreaser cover shall be kept closed whenever parts are not being handled in the cleaner.(iii) Parts shall be drained for at least 15 seconds or until dripping ceases.(iv) Porous or absorbent materials, such as cloth, leather, wood, or rope, shall not be degreased.(2) Open-top vapor degreasing. No person shall own or operate a system utilizing a VOC for the open-top vapor degreasing of objects without the following controls:(A) a cover that can be opened and closed easily without disturbing the vapor zone;(B) the following devices which will automatically shut off the sump heat:(i) a condenser coolant flow sensor and thermostat which will detect if the condenser coolant is not circulating or if the condenser coolant temperature exceeds the solvent manufacturer's recommendations;(ii) a solvent level sensor which will detect if the solvent level drops below acceptable design limits; and(iii) a vapor level sensor which will detect if the vapor level rises above acceptable design limits;(C) a spray safety switch which will shut off the spray pump to prevent spraying above the vapor level;(D) one of the following controls:(i) a freeboard that provides a ratio equal to or greater than 0.75 and, if the degreaser opening is greater than 10 ft (1m2), a powered cover. To determine the freeboard ratio, the freeboard height measurement is taken from the top of the degreaser to the top of the air/vapor level. This number is then divided by the smallest width measurement. The width measurement is taken at the smallest interior dimension. This dimension could be located at any point, from the top or opening of the unit to the air/vapor level;(ii) a properly sized refrigerated chiller capable of achieving 85% or greater control of VOC emissions;(iii) an enclosed design where the cover or door opens only when the dry part is actually entering or exiting the degreaser; or(iv) a carbon adsorption system with ventilation equal to or greater than 50 cfm/ft2 (15m 3 /min per m2 ) of air/vapor area (with the cover open) and exhausting less than 25 ppm of solvent by volume averaged over one complete adsorption cycle;(E) a permanent, conspicuous, label summarizing the operating procedures listed in subparagraph (F) of this paragraph; and(F) the following operating procedures:(i) the cover shall be closed at all times except when processing work loads through the degreaser;(ii) parts shall be positioned so that complete drainage is obtained;(iii) parts shall be moved in and out of the degreaser at less than 11 ft/min (3.3 m/min);(iv) the work load shall be retained in the vapor zone at least 30 seconds or until condensation ceases;(v) any pools of solvent on the cleaned parts shall be removed by tipping the part before withdrawing it from the vapor zone;(vi) parts shall be allowed to dry within the degreaser freeboard area for at least 15 seconds or until visually dry;(vii) porous or absorbent materials, such as cloth, leather, wood, or rope, shall not be degreased;(viii) work loads shall not occupy more than half of the degreaser open top surface area;(ix) solvent shall not be sprayed above the vapor level;(x) solvent leaks shall be repaired immediately, or the degreaser shall be shut down until repairs are made;(xi) waste solvent shall not be disposed of or transferred to another party such that the waste solvent will evaporate into the atmosphere. Waste solvent shall be stored only in covered containers;(xii) exhaust ventilation for systems other than those which vent to a major control device shall not exceed 65 cfm per ft 2 (20 m3 /min per m2 ) of degreaser open area, unless necessary to meet Occupational Safety and Health Administration (OSHA) requirements or unless a carbon adsorption system is installed as a major control device. Ventilation fans or other sources of air agitation shall not be used near the degreaser opening; and(xiii) water shall not be visibly detectable in the solvent exiting the water separator.(3) Conveyorized degreasing. No person shall own or operate a system utilizing a VOC for the conveyorized cleaning of objects without the following controls:(A) one of the following major control devices:(i) a properly sized refrigerated chiller capable of achieving 85% or greater control of VOC emissions; or(ii) a carbon adsorption system with ventilation equal to or greater than 50 cfm/ft2 (15 m 3 /min/m2 ) of air/vapor area (when downtime covers are open) and exhausting less than 25 ppm of solvent by volume averaged over one complete adsorption cycle;(B) a drying tunnel or other means, such as rotating (tumbling) basket if space is available, to prevent solvent liquid or vapor carry-out;(C) a condenser flow switch and thermostat which will shut off sump heat if the condenser coolant is not circulating or if the condenser coolant discharge temperature exceeds the solvent manufacturer's recommendation;(D) a spray safety switch which will shut off the spray pump if the vapor level drops more than four inches (ten cm);(E) a vapor level control thermostat which will shut off the sump heat when the vapor level rises above the designed operating level;(F) entrances and exits which silhouette work loads so that the average clearance (between parts and edge of the degreaser opening) is either less than four inches (ten cm) or less than 10% of the width of the opening;(G) downtime covers which close off the entrance and exit during nonoperating hours;(H) a permanent, conspicuous label near the operator summarizing the operating requirements in subparagraph (I) of this paragraph; and(I) the following operating procedures:(i) exhaust ventilation for systems other than those which vent to a major control device shall not exceed 65 cfm/ft2 (20 m3 /min/m2 ) of degreaser opening, unless necessary to meet OSHA requirements or unless a carbon adsorption system is installed as a major control device. Ventilation fans shall not be used near the degreaser opening;(ii) parts shall be positioned so that complete drainage is obtained;(iii) vertical conveyor speed shall be maintained at less than 11 ft/min (3.3 m/min);(iv) waste solvent shall not be disposed of, or transferred to another party, such that the waste solvent can evaporate into the atmosphere. Waste solvent shall be stored only in covered containers;(v) leaks shall be repaired immediately or the degreaser shall be shut down until repairs are made;(vi) water shall not be visibly detectable in the solvent exiting the water separator;(vii) downtime covers shall be placed over entrances and exits of conveyorized degreasers immediately after the conveyor and exhaust are shut down and removed just before they are started up; and(viii) porous or absorbent materials, such as cloth, leather, wood, or rope, shall not be degreased.(b) In accordance with the compliance schedule for contingency requirements in §115.419(f) of this title (relating to Counties and Compliance Schedules), and in addition to the requirements of subsection (a) of this section, no person in the Dallas-Fort Worth area shall own or operate a system for the cold solvent cleaning, open-top vapor degreasing, or conveyorized degreasing of objects using a solvent with a VOC content greater than 25 grams per liter (g/l).(c) In accordance with the compliance schedule for contingency requirements in §115.419(g) of this title, and in addition to the requirements of subsection (a) of this section, no person in the Houston-Galveston-Brazoria area shall own or operate a system for the cold solvent cleaning, open-top vapor degreasing, or conveyorized degreasing of objects using a solvent with a VOC content greater than 25 g/l.</content><note type="source"><p>Source Note: The provisions of this §115.412 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective December 9, 2004, 29 TexReg 11360; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.413"><num value="115.413">§115.413</num><heading>Alternate Control Requirements</heading><content>Except as specified in paragraph (4) of this section, the alternate control requirements for degreasing processes in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas and in Gregg, Nueces, Victoria, Comal, Guadalupe, Wilson, Bastrop, Caldwell, Hays, Travis, and Williamson Counties are as follows.(1) Alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.(2) An alternative capture and control system for cold solvent cleaners with a demonstrated overall volatile organic compound (VOC) emission reduction efficiency of 65% or greater may be used in lieu of the requirements of §115.412(a)(1) of this title (relating to Control Requirements), if approved by the executive director.(3) An alternate capture and control system for open-top vapor or conveyorized degreasers with a demonstrated overall VOC emission reduction efficiency of 85% or greater may be used in lieu of the requirements of §115.412(a)(2)(D) or (a)(3)(A) of this title, if approved by the executive director.(4) The owner or operator of a cold cleaning solvent, open-top vapor degreasing, or conveyorized degreasing system that becomes subject to §115.412(b) or (c) of this title may use an airless/air-tight batch cleaning system or an alternative cleaning system approved by the United States Environmental Protection Agency (EPA) that achieves equivalent emission reductions, provided that all of the following applicable requirements are met:(A) the equipment is operated in accordance with the manufacturer's specifications and operated with a door or other pressure sealing apparatus that is in place during all cleaning and drying cycles;(B) all waste solvents are stored in properly identified and sealed containers, and no associated pressure relief devices allow liquid solvents to drain out;(C) spills that occur during solvent transfer must be wiped up immediately, and the used wipe rags must be stored in closed containers that are handled in accordance with clause (ii) of this subparagraph;(D) the equipment is maintained in a vapor-tight, leak-free condition and any leak is a violation; and(E) the requirements of this paragraph are subject to approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.413 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective December 9, 2004, 29 TexReg 11360; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.415"><num value="115.415">§115.415</num><heading>Testing Requirements</heading><content>The testing requirements for degreasing processes in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas and in Bastrop, Caldwell, Comal, Gregg, Guadalupe, Hays, Nueces, Travis, Victoria, Williamson, and Wilson Counties are as follows.(1) Compliance with §115.412(a)(1) of this title (relating to Control Requirements) must be determined by applying the following test methods, as applicable:(A) determination of true vapor pressure using ASTM International Test Method D323-89, ASTM Test Method D2879, ASTM Test Method D4953, ASTM Test Method D5190, or ASTM Test Method D5191 for the measurement of Reid vapor pressure, adjusted for actual storage temperature in accordance with American Petroleum Institute Publication 2517, Third Edition, 1989;(B) minor modifications to the test methods and procedures listed in subparagraph (A) of this paragraph that are approved by the executive director;(C) using standard reference materials for the true vapor pressure of each volatile organic compound component; or(D) using analytical data from the solvent supplier or manufacturer's material safety data sheet.(2) Compliance with §115.412(a)(2)(D)(iv) and (a)(3)(A)(ii) of this title and §115.413(3) of this title (relating to Alternate Control Requirements) must be determined by applying the following test methods, as appropriate:(A) Test Methods 1-4 (40 Code of Federal Regulations (CFR) Part 60, Appendix A) for determining flow rates, as necessary;(B) Test Method 18 (40 CFR Part 60, Appendix A) for determining gaseous organic compound emissions by gas chromatography;(C) Test Method 25 (40 CFR Part 60, Appendix A) for determining total gaseous nonmethane organic emissions as carbon;(D) Test Methods 25A or 25B (40 CFR Part 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis; or(E) minor modifications to these test methods and procedures approved by the executive director.(3) Compliance with §115.412(b) and (c) of this title must be determined by applying the following test methods, as applicable:(A) Method 24 (40 CFR Part 60, Appendix A); or(B) additional test procedures described in 40 CFR §60.446 (as amended through October 17, 2000 (65 Federal Register 61761)).(4) Test methods other than those specified in paragraphs (1) - (3) of this section may be used if validated by 40 CFR Part 63, Appendix A, Test Method 301. For the purposes of this paragraph, substitute "executive director" each place that Test Method 301 references "administrator."</content><note type="source"><p>Source Note: The provisions of this §115.415 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective December 9, 2004, 29 TexReg 11360; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.416"><num value="115.416">§115.416</num><heading>Recordkeeping Requirements</heading><content>The owner or operator of each degreasing process in Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas and in Bastrop, Caldwell, Comal, Gregg, Guadalupe, Hays, Nueces, Travis, Victoria, Williamson, and Wilson Counties shall maintain the following records at the facility for at least two years and shall make such records available upon request to representatives of the executive director, the United States Environmental Protection Agency, or the local air pollution control agency having jurisdiction in the area:(1) a record of control equipment maintenance, such as replacement of the carbon in a carbon adsorption unit;(2) the results of all tests conducted at the facility in accordance with the requirements described in §115.415(2) and (3) of this title (relating to Testing Requirements);(3) for each degreasing process in Gregg, Nueces, and Victoria Counties which is exempt under §115.411(a)(5) of this title (relating to Exemptions), records of solvent usage in sufficient detail to document continuous compliance with this exemption;(4) for each degreasing process in the Dallas-Fort Worth area, records sufficient to demonstrate continuous compliance with:(A) the vapor pressure testing described in §115.415(1)(A) - (D) of this title; and(B) the applicable exemptions in §115.411 of this title.</content><note type="source"><p>Source Note: The provisions of this §115.416 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective December 9, 2004, 29 TexReg 11360; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.419"><num value="115.419">§115.419</num><heading>Counties and Compliance Schedules</heading><content>(a) In Bexar, Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Gregg, Hardin, Harris, Jefferson, Liberty, Montgomery, Nueces, Orange, Tarrant, Victoria, and Waller, Counties, the compliance date has passed and all affected persons shall continue to comply with this division.(b) All affected persons in Bastrop, Caldwell, Comal, Guadalupe, Hays, Travis, Williamson, and Wilson Counties shall comply with this division as soon as practicable, but no later than December 31, 2005.(c) All affected persons in Ellis, Johnson, Kaufman, Parker, and Rockwall Counties shall comply with this division as soon as practicable, but no later than March 1, 2009.(d) All affected persons of a degreasing process in Wise County shall comply with this division as soon as practicable, but no later than January 1, 2017.(e) All affected persons of a degreasing process in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise Counties that becomes subject to this division on or after the applicable compliance date in subsection (a), (c), or (d) of this section shall comply with the requirements in this division as soon as practicable, but no later than 60 days after becoming subject. (f) All affected owners or operators of a degreasing process in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise Counties shall be in compliance with §115.412(b) of this title (relating to Control Requirements) by no later than 270 days after the commission publishes notification in the Texas Register of its determination that this contingency rule is necessary as a result of EPA publication of a notice in the Federal Register that the specified area failed to attain the applicable National Ambient Air Quality Standard for ozone by the attainment deadline or failed to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act, §172(c)(9).(g) All affected owners or operators of a degreasing process in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties shall be in compliance with §115.412(c) of this title by no later than 270 days after the commission publishes notification in the Texas Register of its determination that this contingency rule is necessary as a result of EPA publication of a notice in the Federal Register that the specified area failed to attain the applicable National Ambient Air Quality Standard for ozone by the attainment deadline or failed to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act, §172(c)(9). (h) The owner or operator of a degreasing process or operation in the Bexar County area subject to the requirements of this division shall comply with the requirements of this division by no later than January 1, 2025. All affected persons of a degreasing process or operation in the Bexar County area that becomes subject to this division on or after the applicable compliance date in this subsection shall comply with the requirements of this division by but no later than 60 days after becoming subject.</content><note type="source"><p>Source Note: The provisions of this §115.419 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3725; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective December 9, 2004, 29 TexReg 11360; amended to be effective December 7, 2006, 31 TexReg 9840; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.420"><num value="115.420">§115.420</num><heading>Applicability and Definitions</heading><content>(a) The owner or operator of a surface coating process in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), and in Gregg, Nueces, and Victoria Counties, as specified in each paragraph below, is subject to this division. All owners and operators shall be in compliance with this division in accordance with the compliance schedules listed in §115.429 of this title (relating to Counties and Compliance Schedules).(1) Large appliance coating. The requirements in this division apply in the Beaumont-Port Arthur and El Paso areas and in Gregg, Nueces, and Victoria Counties.(2) Metal furniture coating. The requirements in this division apply in the Beaumont-Port Arthur and El Paso areas and in Gregg, Nueces, and Victoria Counties.(3) Coil coating. The requirements in this division apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas and in Gregg, Nueces, and Victoria Counties.(4) Paper coating. The requirements in this division apply in the Beaumont-Port Arthur, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas and in Gregg, Nueces, and Victoria Counties. In the Dallas-Fort Worth and Houston-Galveston-Brazoria areas, applicability is determined by the volatile organic compound (VOC) emissions from each individual paper coating line.(A) Each paper coating line in the Dallas-Fort Worth and Houston-Galveston-Brazoria areas that has the potential to emit less than 25 tons per year (tpy) of VOC is subject to this division.(B) Each paper coating line in the Dallas-Fort Worth and Houston-Galveston-Brazoria areas that has the potential to emit equal to or greater than 25 tpy of VOC is subject to the requirements in Division 5 of this Subchapter (relating to Control Requirements for Surface Coating Processes).(5) Fabric coating. The requirements in this division apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas and in Gregg, Nueces, and Victoria Counties.(6) Vinyl coating. The requirements in this division apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, and in Gregg, Nueces, and Victoria Counties.(7) Can coating. The requirements in this division apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, and in Gregg, Nueces, and Victoria Counties.(8) Automobile and light-duty truck coating. The requirements in this division apply in the Beaumont-Port Arthur, El Paso, and Houston-Galveston-Brazoria areas.(9) Vehicle refinishing coating (body shops). The requirements in this division apply in the Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas.(10) Miscellaneous metal parts and products coating. The requirements in this division apply in the Beaumont-Port Arthur and El Paso areas and in Gregg, Nueces, and Victoria Counties. In the Dallas-Fort Worth and Houston-Galveston-Brazoria areas, the requirements in this division apply only to designated on-site maintenance shops as specified in §115.427(8) of this title (relating to Exemptions).(11) Factory surface coating of flat wood paneling. The requirements in this division apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas and in Gregg, Nueces, and Victoria Counties.(12) Aerospace coating. The requirements in this division apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas and in Gregg, Nueces, and Victoria Counties.(13) Mirror backing coating. The requirements in this division apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth El Paso, and Houston-Galveston-Brazoria areas.(14) Wood parts and products coating. The requirements in this division apply in the Bexar County, Dallas-Fort Worth El Paso, and Houston-Galveston-Brazoria areas.(15) Wood furniture manufacturing coatings. The requirements in this division apply in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas.(16) Marine coatings. The requirements in this division apply in the Beaumont-Port Arthur and Houston-Galveston-Brazoria areas.(b) General surface coating definitions. The following terms, when used in this division have the following meanings, unless the context clearly indicates otherwise. Additional definitions for terms used in this division are found in §§3.2, 101.1, and 115.10 of this title (relating to Definitions).(1) Aerosol coating (spray paint)--A hand-held, pressurized, nonrefillable container that expels an adhesive or a coating in a finely divided spray when a valve on the container is depressed.(2) Coating--A material applied onto or impregnated into a substrate for protective, decorative, or functional purposes. Such materials include, but are not limited to, paints, varnishes, sealants, adhesives, thinners, diluents, inks, maskants, and temporary protective coatings.(3) Coating application system--Devices or equipment designed for the purpose of applying a coating material to a surface. The devices may include, but are not be limited to, brushes, sprayers, flow coaters, dip tanks, rollers, knife coaters, and extrusion coaters.(4) Coating line--An operation consisting of a series of one or more coating application systems and including associated flashoff area(s), drying area(s), and oven(s) wherein a surface coating is applied, dried, or cured.(5) Coating solids (or solids)--The part of a coating that remains after the coating is dried or cured.(6) Daily weighted average--The total weight of volatile organic compound (VOC) emissions from all coatings subject to the same emission standard in §115.421 of this title (relating to Emission Specifications), divided by the total volume of those coatings (minus water and exempt solvent) delivered to the application system each day. Coatings subject to different emission standards in §115.421 of this title must not be combined for purposes of calculating the daily weighted average. In addition, determination of compliance is based on each individual coating line.(7) High-volume low-pressure spray guns--Equipment used to apply coatings by means of a spray gun which operates between 0.1 and 10.0 pounds per square inch gauge air pressure at the air cap.(8) Normally closed container--A container that is closed unless an operator is actively engaged in activities such as adding or removing material.(9) Pounds of VOC per gallon of coating (minus water and exempt solvents)--Basis for emission limits for surface coating processes. Can be calculated by the following equation:Attached Graphic(10) Pounds of VOC per gallon of solids--Basis for emission limits for surface coating process. Can be calculated by the following equation:Attached Graphic(11) Spray gun--A device that atomizes a coating or other material and projects the particulates or other material onto a substrate.(12) Surface coating processes--Operations which utilize a coating application system.(13) Transfer efficiency--The amount of coating solids deposited onto the surface of a part or product divided by the total amount of coating solids delivered to the coating application system.(c) Specific surface coating definitions. The following terms, when used in this division, shall have the following meanings, unless the context clearly indicates otherwise.(1) Aerospace coating.(A) Ablative coating--A coating that chars when exposed to open flame or extreme temperatures, as would occur during the failure of an engine casing or during aerodynamic heating. The ablative char surface serves as an insulative barrier, protecting adjacent components from the heat or open flame.(B) Adhesion promoter--A very thin coating applied to a substrate to promote wetting and form a chemical bond with the subsequently applied material.(C) Adhesive bonding primer--A primer applied in a thin film to aerospace components for the purpose of corrosion inhibition and increased adhesive bond strength by attachment. There are two categories of adhesive bonding primers: primers with a design cure at 250 degrees Fahrenheit or below and primers with a design cure above 250 degrees Fahrenheit.(D) Aerospace vehicle or component--Any fabricated part, processed part, assembly of parts, or completed unit, with the exception of electronic components, of any aircraft including but not limited to airplanes, helicopters, missiles, rockets, and space vehicles.(E) Aircraft fluid systems--Those systems that handle hydraulic fluids, fuel, cooling fluids, or oils.(F) Aircraft transparency--The aircraft windshield, canopy, passenger windows, lenses, and other components which are constructed of transparent materials.(G) Antichafe coating--A coating applied to areas of moving aerospace components that may rub during normal operations or installation.(H) Antique aerospace vehicle or component--An aerospace vehicle or component thereof that was built at least 30 years ago. An antique aerospace vehicle would not routinely be in commercial or military service in the capacity for which it was designed.(I) Aqueous cleaning solvent--A solvent in which water is at least 80% by volume of the solvent as applied.(J) Bearing coating--A coating applied to an antifriction bearing, a bearing housing, or the area adjacent to such a bearing in order to facilitate bearing function or to protect base material from excessive wear. A material shall not be classified as a bearing coating if it can also be classified as a dry lubricative material or a solid film lubricant.(K) Bonding maskant--A temporary coating used to protect selected areas of aerospace parts from strong acid or alkaline solutions during processing for bonding.(L) Caulking and smoothing compounds--Semi-solid materials which are applied by hand application methods and are used to aerodynamically smooth exterior vehicle surfaces or fill cavities such as bolt hole accesses. A material shall not be classified as a caulking and smoothing compound if it can also be classified as a sealant.(M) Chemical agent-resistant coating--An exterior topcoat designed to withstand exposure to chemical warfare agents or the decontaminants used on these agents.(N) Chemical milling maskant--A coating that is applied directly to aluminum components to protect surface areas when chemically milling the component with a Type I or II etchant. Type I chemical milling maskants are used with a Type I etchant and Type II chemical milling maskants are used with a Type II etchant. This definition does not include bonding maskants, critical use and line sealer maskants, and seal coat maskants. Additionally, maskants that must be used with a combination of Type I or II etchants and any of the above types of maskants (i.e., bonding, critical use and line sealer, and seal coat) are not included. Maskants that are defined as specialty coatings are not included under this definition.(O) Cleaning operation--Spray-gun, hand-wipe, and flush cleaning operations.(P) Cleaning solvent--A liquid material used for hand-wipe, spray gun, or flush cleaning. This definition does not include solutions that contain no VOC.(Q) Clear coating--A transparent coating usually applied over a colored opaque coating, metallic substrate, or placard to give improved gloss and protection to the color coat.(R) Closed-cycle depainting system--A dust free, automated process that removes permanent coating in small sections at a time, and maintains a continuous vacuum around the area(s) being depainted to capture emissions.(S) Coating operation--Using a spray booth, tank, or other enclosure or any area (such as a hangar) for applying a single type of coating (e.g., primer); using the same spray booth for applying another type of coating (e.g., topcoat) constitutes a separate coating operation for which compliance determinations are performed separately.(T) Coating unit--A series of one or more coating applicators and any associated drying area and/or oven wherein a coating is applied, dried, and/or cured. A coating unit ends at the point where the coating is dried or cured, or prior to any subsequent application of a different coating.(U) Commercial exterior aerodynamic structure primer--A primer used on aerodynamic components and structures that protrude from the fuselage, such as wings and attached components, control surfaces, horizontal stabilizers, vertical fins, wing-to-body fairings, antennae, and landing gear and doors, for the purpose of extended corrosion protection and enhanced adhesion.(V) Commercial interior adhesive--Materials used in the bonding of passenger cabin interior components. These components must meet the Federal Aviation Administration (FAA) fireworthiness requirements.(W) Compatible substrate primer--Either compatible epoxy primer or adhesive primer. Compatible epoxy primer is primer that is compatible with the filled elastomeric coating and is epoxy based. The compatible substrate primer is an epoxy-polyamide primer used to promote adhesion of elastomeric coatings such as impact-resistant coatings. Adhesive primer is a coating that:(i) inhibits corrosion and serves as a primer applied to bare metal surfaces or prior to adhesive application; or(ii) is applied to surfaces that can be expected to contain fuel. Fuel tank coatings are excluded from this category.(X) Confined space--A space that:(i) is large enough and so configured that a person can bodily enter and perform assigned work;(ii) has limited or restricted means for entry or exit (for example, fuel tanks, fuel vessels, and other spaces that have limited means of entry); and(iii) is not suitable for continuous occupancy.(Y) Corrosion prevention compound--A coating system or compound that provides corrosion protection by displacing water and penetrating mating surfaces, forming a protective barrier between the metal surface and moisture. Coatings containing oils or waxes are excluded from this category.(Z) Critical use and line sealer maskant--A temporary coating, not covered under other maskant categories, used to protect selected areas of aerospace parts from strong acid or alkaline solutions such as those used in anodizing, plating, chemical milling and processing of magnesium, titanium, or high-strength steel, high-precision aluminum chemical milling of deep cuts, and aluminum chemical milling of complex shapes. Materials used for repairs or to bridge gaps left by scribing operations (i.e., line sealer) are also included in this category.(AA) Cryogenic flexible primer--A primer designed to provide corrosion resistance, flexibility, and adhesion of subsequent coating systems when exposed to loads up to and surpassing the yield point of the substrate at cryogenic temperatures (-275 degrees Fahrenheit and below).(BB) Cryoprotective coating--A coating that insulates cryogenic or subcooled surfaces to limit propellant boil-off, maintain structural integrity of metallic structures during ascent or re-entry, and prevent ice formation.(CC) Cyanoacrylate adhesive--A fast-setting, single component adhesive that cures at room temperature. Also known as "super glue."(DD) Dry lubricative material--A coating consisting of lauric acid, cetyl alcohol, waxes, or other noncross linked or resin-bound materials that act as a dry lubricant.(EE) Electric or radiation-effect coating--A coating or coating system engineered to interact, through absorption or reflection, with specific regions of the electromagnetic energy spectrum, such as the ultraviolet, visible, infrared, or microwave regions. Uses include, but are not limited to, lightning strike protection, electromagnetic pulse (EMP) protection, and radar avoidance. Coatings that have been designated as "classified" by the Department of Defense are excluded.(FF) Electrostatic discharge and electromagnetic interference coating--A coating applied to space vehicles, missiles, aircraft radomes, and helicopter blades to disperse static energy or reduce electromagnetic interference.(GG) Elevated-temperature Skydrol-resistant commercial primer--A primer applied primarily to commercial aircraft (or commercial aircraft adapted for military use) that must withstand immersion in phosphate-ester hydraulic fluid (Skydrol 500b or equivalent) at the elevated temperature of 150 degrees Fahrenheit for 1,000 hours.(HH) Epoxy polyamide topcoat--A coating used where harder films are required or in some areas where engraving is accomplished in camouflage colors.(II) Fire-resistant (interior) coating--For civilian aircraft, fire-resistant interior coatings are used on passenger cabin interior parts that are subject to the FAA fireworthiness requirements. For military aircraft, fire-resistant interior coatings are used on parts that are subject to the flammability requirements of MIL-STD-1630A and MIL-A-87721. For space applications, these coatings are used on parts that are subject to the flammability requirements of SE-R-0006 and SSP 30233.(JJ) Flexible primer--A primer that meets flexibility requirements such as those needed for adhesive bond primed fastener heads or on surfaces expected to contain fuel. The flexible coating is required because it provides a compatible, flexible substrate over bonded sheet rubber and rubber-type coatings as well as a flexible bridge between the fasteners, skin, and skin-to-skin joints on outer aircraft skins. This flexible bridge allows more topcoat flexibility around fasteners and decreases the chance of the topcoat cracking around the fasteners. The result is better corrosion resistance.(KK) Flight test coating--A coating applied to aircraft other than missiles or single-use aircraft prior to flight testing to protect the aircraft from corrosion and to provide required marking during flight test evaluation.(LL) Flush cleaning--Removal of contaminants such as dirt, grease, oil, and coatings from an aerospace vehicle or component or coating equipment by passing solvent over, into, or through the item being cleaned. The solvent may simply be poured into the item being cleaned and then drained, or assisted by air or hydraulic pressure, or by pumping. Hand-wipe cleaning operations where wiping, scrubbing, mopping, or other hand action are used are not included.(MM) Fuel tank adhesive--An adhesive used to bond components exposed to fuel and must be compatible with fuel tank coatings.(NN) Fuel tank coating--A coating applied to fuel tank components for the purpose of corrosion and/or bacterial growth inhibition and to assure sealant adhesion in extreme environmental conditions.(OO) Grams of VOC per liter of coating (less water and less exempt solvent)--The weight of VOC per combined volume of total volatiles and coating solids, less water and exempt compounds. Can be calculated by the following equation:Attached Graphic(PP) Hand-wipe cleaning operation--Removing contaminants such as dirt, grease, oil, and coatings from an aerospace vehicle or component by physically rubbing it with a material such as a rag, paper, or cotton swab that has been moistened with a cleaning solvent.(QQ) High temperature coating--A coating designed to withstand temperatures of more than 350 degrees Fahrenheit.(RR) Hydrocarbon-based cleaning solvent--A solvent which is composed of VOC (photochemically reactive hydrocarbons) and/or oxygenated hydrocarbons, has a maximum vapor pressure of seven millimeters of mercury (mm Hg) at 20 degrees Celsius (68 degrees Fahrenheit), and contains no hazardous air pollutant (HAP) identified in the 1990 Amendments to the Federal Clean Air Act (FCAA), §112(b).(SS) Insulation covering--Material that is applied to foam insulation to protect the insulation from mechanical or environmental damage.(TT) Intermediate release coating--A thin coating applied beneath topcoats to assist in removing the topcoat in depainting operations and generally to allow the use of less hazardous depainting methods.(UU) Lacquer--A clear or pigmented coating formulated with a nitrocellulose or synthetic resin to dry by evaporation without a chemical reaction. Lacquers are resoluble in their original solvent.(VV) Limited access space--Internal surfaces or passages of an aerospace vehicle or component that cannot be reached without the aid of an airbrush or a spray gun extension for the application of coatings.(WW) Metalized epoxy coating--A coating that contains relatively large quantities of metallic pigmentation for appearance and/or added protection.(XX) Mold release--A coating applied to a mold surface to prevent the molded piece from sticking to the mold as it is removed.(YY) Monthly weighted average--The total weight of VOC emission from all coatings divided by the total volume of those coatings (minus water and exempt solvents) delivered to the application system each calendar month. Coatings shall not be combined for purposes of calculating the monthly weighted average. In addition, determination of compliance is based on each individual coating operation.(ZZ) Nonstructural adhesive--An adhesive that bonds nonload bearing aerospace components in noncritical applications and is not covered in any other specialty adhesive categories.(AAA) Operating parameter value--A minimum or maximum value established for a control equipment or process parameter that, if achieved by itself or in combination with one or more other operating parameter values, determines that an owner or operator has continued to comply with an applicable emission limitation.(BBB) Optical antireflection coating--A coating with a low reflectance in the infrared and visible wavelength ranges that is used for antireflection on or near optical and laser hardware.(CCC) Part marking coating--Coatings or inks used to make identifying markings on materials, components, and/or assemblies of aerospace vehicles. These markings may be either permanent or temporary. (DDD) Pretreatment coating--An organic coating that contains at least 0.5% acids by weight and is applied directly to metal or composite surfaces to provide surface etching, corrosion resistance, adhesion, and ease of stripping.(EEE) Primer--The first layer and any subsequent layers of identically formulated coating applied to the surface of an aerospace vehicle or component. Primers are typically used for corrosion prevention, protection from the environment, functional fluid resistance, and adhesion of subsequent coatings. Primers that are defined as specialty coatings are not included under this definition.(FFF) Radome--The nonmetallic protective housing for electromagnetic transmitters and receivers (e.g., radar, electronic countermeasures, etc.).(GGG) Rain erosion-resistant coating--A coating or coating system used to protect the leading edges of parts such as flaps, stabilizers, radomes, engine inlet nacelles, etc. against erosion caused by rain impact during flight.(HHH) Research and development--An operation whose primary purpose is for research and development of new processes and products and that is conducted under the close supervision of technically trained personnel and is not involved in the manufacture of final or intermediate products for commercial purposes, except in a de minimis manner.(III) Rocket motor bonding adhesive--An adhesive used in rocket motor bonding applications.(JJJ) Rocket motor nozzle coating--A catalyzed epoxy coating system used in elevated temperature applications on rocket motor nozzles.(KKK) Rubber-based adhesive--A quick setting contact cement that provides a strong, yet flexible bond between two mating surfaces that may be of dissimilar materials.(LLL) Scale inhibitor--A coating that is applied to the surface of a part prior to thermal processing to inhibit the formation of scale.(MMM) Screen print ink--An ink used in screen printing processes during fabrication of decorative laminates and decals.(NNN) Sealant--A material used to prevent the intrusion of water, fuel, air, or other liquids or solids from certain areas of aerospace vehicles or components. There are two categories of sealants: extrudable/rollable/brushable sealants and sprayable sealants.(OOO) Seal coat maskant--An overcoat applied over a maskant to improve abrasion and chemical resistance during production operations.(PPP) Self-priming topcoat--A topcoat that is applied directly to an uncoated aerospace vehicle or component for purposes of corrosion prevention, environmental protection, and functional fluid resistance. More than one layer of identical coating formulation may be applied to the vehicle or component.(QQQ) Semiaqueous cleaning solvent--A solution in which water is a primary ingredient. More than 60% by volume of the solvent solution as applied must be water.(RRR) Silicone insulation material--An insulating material applied to exterior metal surfaces for protection from high temperatures caused by atmospheric friction or engine exhaust. These materials differ from ablative coatings in that they are not "sacrificial."(SSS) Solid film lubricant--A very thin coating consisting of a binder system containing as its chief pigment material one or more of the following: molybdenum, graphite, polytetrafluoroethylene, or other solids that act as a dry lubricant between faying (i.e., closely or tightly fitting) surfaces.(TTT) Space vehicle--A man-made device, either manned or unmanned, designed for operation beyond earth's atmosphere. This definition includes integral equipment such as models, mock-ups, prototypes, molds, jigs, tooling, hardware jackets, and test coupons. Also included is auxiliary equipment associated with test, transport, and storage, that through contamination can compromise the space vehicle performance.(UUU) Specialty coating--A coating that, even though it meets the definition of a primer, topcoat, or self-priming topcoat, has additional performance criteria beyond those of primers, topcoats, and self-priming topcoats for specific applications. These performance criteria may include, but are not limited to, temperature or fire resistance, substrate compatibility, antireflection, temporary protection or marking, sealing, adhesively joining substrates, or enhanced corrosion protection.(VVV) Specialized function coating--A coating that fulfills extremely specific engineering requirements that are limited in application and are characterized by low volume usage. This category excludes coatings covered in other specialty coating categories.(WWW) Structural autoclavable adhesive--An adhesive used to bond load-carrying aerospace components that is cured by heat and pressure in an autoclave.(XXX) Structural nonautoclavable adhesive--An adhesive cured under ambient conditions that is used to bond load-carrying aerospace components or other critical functions, such as nonstructural bonding in the proximity of engines.(YYY) Surface preparation--The removal of contaminants from the surface of an aerospace vehicle or component or the activation or reactivation of the surface in preparation for the application of a coating.(ZZZ) Temporary protective coating--A coating applied to provide scratch or corrosion protection during manufacturing, storage, or transportation. Two types include peelable protective coatings and alkaline removable coatings. These materials are not intended to protect against strong acid or alkaline solutions. Coatings that provide this type of protection from chemical processing are not included in this category.(AAAA) Thermal control coating--A coating formulated with specific thermal conductive or radiative properties to permit temperature control of the substrate.(BBBB) Topcoat--A coating that is applied over a primer on an aerospace vehicle or component for appearance, identification, camouflage, or protection. Topcoats that are defined as specialty coatings are not included under this definition.(CCCC) Touch-up and repair coating--A coating used to cover minor coating imperfections appearing after the main coating operation.(DDDD) Touch-up and repair operation--That portion of the coating operation that is the incidental application of coating used to cover minor imperfections in the coating finish or to achieve complete coverage. This definition includes out-of-sequence or out-of-cycle coating.(EEEE) Volatile organic compound (VOC) composite vapor pressure--The sum of the partial pressures of the compounds defined as VOCs, determined by the following calculation:Attached Graphic(FFFF) Waterborne (water-reducible) coating--A coating which contains more than 5.0% water by weight as applied in its volatile fraction.(GGGG) Wet fastener installation coating--A primer or sealant applied by dipping, brushing, or daubing to fasteners that are installed before the coating is cured.(HHHH) Wing coating--A corrosion-resistant topcoat that is resilient enough to withstand the flexing of the wings.(2) Can coating--The coating of cans for beverages (including beer), edible products (including meats, fruit, vegetables, and others), tennis balls, motor oil, paints, and other mass-produced cans.(3) Coil coating--The coating of any flat metal sheet or strip supplied in rolls or coils.(4) Fabric coating--The application of coatings to fabric, which includes rubber application (rainwear, tents, and industrial products such as gaskets and diaphragms).(5) Factory surface coating of flat wood paneling--Coating of flat wood paneling products, including hardboard, hardwood plywood, particle board, printed interior paneling, and tile board.(6) Large appliance coating--The coating of doors, cases, lids, panels, and interior support parts of residential and commercial washers, dryers, ranges, refrigerators, freezers, water heaters, dishwashers, trash compactors, air conditioners, and other large appliances.(7) Metal furniture coating--The coating of metal furniture (tables, chairs, wastebaskets, beds, desks, lockers, benches, shelves, file cabinets, lamps, and other metal furniture products) or the coating of any metal part which will be a part of a nonmetal furniture product.(8) Mirror backing coating--The application of coatings to the silvered surface of a mirror.(9) Miscellaneous metal parts and products coating.(A) Clear coat--A coating which lacks opacity or which is transparent and which may or may not have an undercoat that is used as a reflectant base or undertone color.(B) Drum (metal)--Any cylindrical metal shipping container with a nominal capacity equal to or greater than 12 gallons (45.4 liters) but equal to or less than 110 gallons (416 liters).(C) Extreme performance coating--A coating intended for exposure to extreme environmental conditions, such as continuous outdoor exposure; temperatures frequently above 95 degrees Celsius (203 degrees Fahrenheit); detergents; abrasive and scouring agents; solvents; and corrosive solutions, chemicals, or atmospheres.(D) High-bake coatings--Coatings designed to cure at temperatures above 194 degrees Fahrenheit.(E) Low-bake coatings--Coatings designed to cure at temperatures of 194 degrees Fahrenheit or less.(F) Miscellaneous metal parts and products (MMPP) coating--The coating of MMPP in the following categories at original equipment manufacturing operations; designated on-site maintenance shops which recoat used parts and products; and off-site job shops which coat new parts and products or which recoat used parts and products:(i) large farm machinery (harvesting, fertilizing, and planting machines, tractors, combines, etc.);(ii) small farm machinery (lawn and garden tractors, lawn mowers, rototillers, etc.);(iii) small appliances (fans, mixers, blenders, crock pots, dehumidifiers, vacuum cleaners, etc.);(iv) commercial machinery (computers and auxiliary equipment, typewriters, calculators, vending machines, etc.);(v) industrial machinery (pumps, compressors, conveyor components, fans, blowers, transformers, etc.);(vi) fabricated metal products (metal-covered doors, frames, etc.); and(vii) any other category of coated metal products, including, but not limited to, those which are included in the Standard Industrial Classification Code major group 33 (primary metal industries), major group 34 (fabricated metal products), major group 35 (nonelectrical machinery), major group 36 (electrical machinery), major group 37 (transportation equipment), major group 38 (miscellaneous instruments), and major group 39 (miscellaneous manufacturing industries). Excluded are those surface coating processes specified in paragraphs (1) - (8) and (10) - (14) of this subsection.(G) Pail (metal)--Any cylindrical metal shipping container with a nominal capacity equal to or greater than 1 gallon (3.8 liters) but less than 12 gallons (45.4 liters) and constructed of 29 gauge or heavier material.(10) Paper coating--The coating of paper and pressure-sensitive tapes (regardless of substrate and including paper, fabric, and plastic film) and related web coating processes on plastic film (including typewriter ribbons, photographic film, and magnetic tape) and metal foil (including decorative, gift wrap, and packaging).(11) Marine coatings.(A) Air flask specialty coating--Any special composition coating applied to interior surfaces of high pressure breathing air flasks to provide corrosion resistance and that is certified safe for use with breathing air supplies.(B) Antenna specialty coating--Any coating applied to equipment through which electromagnetic signals must pass for reception or transmission.(C) Antifoulant specialty coating--Any coating that is applied to the underwater portion of a vessel to prevent or reduce the attachment of biological organisms and that is registered with the EPA as a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act.(D) Batch--The product of an individual production run of a coating manufacturer's process. (A batch may vary in composition from other batches of the same product.)(E) Bitumens--Black or brown materials that are soluble in carbon disulfide, which consist mainly of hydrocarbons.(F) Bituminous resin coating--Any coating that incorporates bitumens as a principal component and is formulated primarily to be applied to a substrate or surface to resist ultraviolet radiation and/or water.(G) Epoxy--Any thermoset coating formed by reaction of an epoxy resin (i.e., a resin containing a reactive epoxide with a curing agent).(H) General use coating--Any coating that is not a specialty coating.(I) Heat resistant specialty coating--Any coating that during normal use must withstand a temperature of at least 204 degrees Celsius (400 degrees Fahrenheit).(J) High-gloss specialty coating--Any coating that achieves at least 85% reflectance on a 60 degree meter when tested by the American Society for Testing and Materials (ASTM) Method D-523.(K) High-temperature specialty coating--Any coating that during normal use must withstand a temperature of at least 426 degrees Celsius (800 degrees Fahrenheit).(L) Inorganic zinc (high-build) specialty coating--A coating that contains 960 grams per liter (eight pounds per gallon) or more elemental zinc incorporated into an inorganic silicate binder that is applied to steel to provide galvanic corrosion resistance. (These coatings are typically applied at more than two mil dry film thickness.)(M) Maximum allowable thinning ratio--The maximum volume of thinner that can be added per volume of coating without exceeding the applicable VOC limit of §115.421(15) of this title.(N) Military exterior specialty coating--Any exterior topcoat applied to military or United States Coast Guard vessels that are subject to specific chemical, biological, and radiological washdown requirements.(O) Mist specialty coating--Any low viscosity, thin film, epoxy coating applied to an inorganic zinc primer that penetrates the porous zinc primer and allows the occluded air to escape through the paint film prior to curing.(P) Navigational aids specialty coating--Any coating applied to Coast Guard buoys or other Coast Guard waterway markers when they are recoated aboard ship at their usage site and immediately returned to the water.(Q) Nonskid specialty coating--Any coating applied to the horizontal surfaces of a marine vessel for the specific purpose of providing slip resistance for personnel, vehicles, or aircraft.(R) Nonvolatiles (or volume solids)--Substances that do not evaporate readily. This term refers to the film-forming material of a coating.(S) Nuclear specialty coating--Any protective coating used to seal porous surfaces such as steel (or concrete) that otherwise would be subject to intrusion by radioactive materials. These coatings must be resistant to long-term (service life) cumulative radiation exposure (ASTM D4082-83), relatively easy to decontaminate (ASTM D4256-83), and resistant to various chemicals to which the coatings are likely to be exposed (ASTM 3912-80). (For nuclear coatings, see the general protective requirements outlined by the U.S. Atomic Energy Commission in a report entitled "U.S. Atomic Energy Commission Regulatory Guide 1.54" dated June 1973, available through the Government Printing Office at (202) 512-2249 as document number A74062-00001.)(T) Organic zinc specialty coating--Any coating derived from zinc dust incorporated into an organic binder that contains more than 960 grams of elemental zinc per liter (eight pounds per gallon) of coating, as applied, and that is used for the expressed purpose of corrosion protection.(U) Pleasure craft--Any marine or fresh-water vessel used by individuals for noncommercial, nonmilitary, and recreational purposes that is less than 20 meters (65.6 feet) in length. A vessel rented exclusively to, or chartered for, individuals for such purposes shall be considered a pleasure craft.(V) Pretreatment wash primer specialty coating--Any coating that contains a minimum of 0.5% acid by weight that is applied only to bare metal surfaces to etch the metal surface for corrosion resistance and adhesion of subsequent coatings.(W) Repair and maintenance of thermoplastic coating of commercial vessels (specialty coating)--Any vinyl, chlorinated rubber, or bituminous resin coating that is applied over the same type of existing coating to perform the partial recoating of any in-use commercial vessel. (This definition does not include coal tar epoxy coatings, which are considered "general use" coatings.)(X) Rubber camouflage specialty coating--Any specially formulated epoxy coating used as a camouflage topcoat for exterior submarine hulls and sonar domes.(Y) Sealant for thermal spray aluminum--Any epoxy coating applied to thermal spray aluminum surfaces at a maximum thickness of one dry mil.(Z) Ship--Any marine or fresh-water vessel, including self-propelled vessels, those propelled by other craft (barges), and navigational aids (buoys). This definition includes, but is not limited to, all military and Coast Guard vessels, commercial cargo and passenger (cruise) ships, ferries, barges, tankers, container ships, patrol and pilot boats, and dredges. Pleasure craft and offshore oil or gas drilling platforms are not considered ships.(AA) Shipbuilding and ship repair operations--Any building, repair, repainting, converting, or alteration of ships or offshore oil or gas drilling platforms.(BB) Special marking specialty coating--Any coating that is used for safety or identification applications, such as ship numbers and markings on flight decks.(CC) Specialty interior coating--Any coating used on interior surfaces aboard United States military vessels pursuant to a coating specification that requires the coating to meet specified fire retardant and low toxicity requirements, in addition to the other applicable military physical and performance requirements.(DD) Tack coat specialty coating--Any thin film epoxy coating applied at a maximum thickness of two dry mils to prepare an epoxy coating that has dried beyond the time limit specified by the manufacturer for the application of the next coat.(EE) Undersea weapons systems specialty coating--Any coating applied to any component of a weapons system intended to be launched or fired from under the sea.(FF) Weld-through preconstruction primer (specialty coating)--A coating that provides corrosion protection for steel during inventory, is typically applied at less than one mil dry film thickness, does not require removal prior to welding, is temperature resistant (burn back from a weld is less than 1.25 centimeters (0.5 inches)), and does not normally require removal before applying film-building coatings, including inorganic zinc high-build coatings. When constructing new vessels, there may be a need to remove areas of weld-through preconstruction primer due to surface damage or contamination prior to application of film-building coatings.(12) Automobile and light-duty truck manufacturing.(A) Automobile coating--The assembly-line coating of passenger cars, or passenger car derivatives, capable of seating 12 or fewer passengers.(B) Light-duty truck coating--The assembly-line coating of motor vehicles rated at 8,500 pounds (3,855.5 kg) gross vehicle weight or less and designed primarily for the transportation of property, or derivatives such as pickups, vans, and window vans.(13) Vehicle refinishing (body shops).(A) Basecoat/clearcoat system--A topcoat system composed of a pigmented basecoat portion and a transparent clearcoat portion. The VOC content of a basecoat (BCCA-AG)/clearcoat (cc) system shall be calculated according to the following formula.Attached Graphic(B) Precoat--Any coating that is applied to bare metal to deactivate the metal surface for corrosion resistance to a subsequent water-based primer. This coating is applied to bare metal solely for the prevention of flash rusting.(C) Pretreatment--Any coating which contains a minimum of 0.5% acid by weight that is applied directly to bare metal surfaces to etch the metal surface for corrosion resistance and adhesion of subsequent coatings.(D) Primer or primer surfacers--Any base coat, sealer, or intermediate coat which is applied prior to colorant or aesthetic coats.(E) Sealers--Coatings that are formulated with resins which, when dried, are not readily soluble in typical solvents. These coatings act as a shield for surfaces over which they are sprayed by resisting the penetration of solvents which are in the final topcoat.(F) Specialty coatings--Coatings or additives which are necessary due to unusual job performance requirements. These coatings or additives prevent the occurrence of surface defects and impart or improve desirable coating properties. These products include, but are not limited to, uniform finish blenders, elastomeric materials for coating of flexible plastic parts, coatings for non-metallic parts, jambing clear coatings, gloss flatteners, and anti-glare/safety coatings. (G) Three-stage system--A topcoat system composed of a pigmented basecoat portion, a semitransparent midcoat portion, and a transparent clearcoat portion. The VOC content of a three-stage system shall be calculated according to the following formula:Attached Graphic(H) Vehicle refinishing (body shops)--The coating of motor vehicles, as defined in §114.620 of this title (relating to Definitions), including, but not limited to, motorcycles, passenger cars, vans, light-duty trucks, medium-duty trucks, heavy-duty trucks, buses, and other vehicle body parts, bodies, and cabs by an operation other than the original manufacturer. The coating of non-road vehicles and non-road equipment, as these terms are defined in §114.3 and §114.6 of this title (relating to Low Emission Vehicle Fleet Definitions; and Low Emission Fuel Definitions), and trailers is not included.(I) Wipe-down solutions--Any solution used for cleaning and surface preparation.(14) Vinyl coating--The use of printing or any decorative or protective topcoat applied over vinyl sheets or vinyl-coated fabric.(15) Wood parts and products. The following terms apply to wood parts and products coating facilities subject to §115.421(14) of this title.(A) Clear coat--A coating which lacks opacity or which is transparent and uses the undercoat as a reflectant base or undertone color.(B) Clear sealers--Liquids applied over stains, toners, and other coatings to protect these coatings from marring during handling and to limit absorption of succeeding coatings.(C) Final repair coat--Liquids applied to correct imperfections or damage to the topcoat.(D) Opaque ground coats and enamels--Colored, opaque liquids applied to wood or wood composition substrates which completely hide the color of the substrate in a single coat.(E) Semitransparent spray stains and toners--Colored liquids applied to wood to change or enhance the surface without concealing the surface, including but not limited to, toners and nongrain-raising stains.(F) Semitransparent wiping and glazing stains--Colored liquids applied to wood that require multiple wiping steps to enhance the grain character and to partially fill the porous surface of the wood.(G) Shellacs--Coatings formulated solely with the resinous secretions of the lac beetle (laccifer lacca), thinned with alcohol, and formulated to dry by evaporation without a chemical reaction.(H) Topcoat--A coating which provides the final protective and aesthetic properties to wood finishes.(I) Varnishes--Clear wood finishes formulated with various resins to dry by chemical reaction on exposure to air.(J) Wash coat--A low-solids clear liquid applied over semitransparent stains and toners to protect the color coats and to set the fibers for subsequent sanding or to separate spray stains from wiping stains to enhance color depth.(K) Wood parts and products coating--The coating of wood parts and products, excluding factory surface coating of flat wood paneling.(16) Wood furniture manufacturing facilities. The following terms apply to wood furniture manufacturing facilities subject to §115.421(15) of this title.(A) Adhesive--Any chemical substance that is applied for the purpose of bonding two surfaces together other than by mechanical means. Adhesives are not considered to be coatings or finishing materials for wood furniture manufacturing facilities subject to §115.421(15) of this title.(B) Basecoat--A coat of colored material, usually opaque, that is applied before graining inks, glazing coats, or other opaque finishing materials and is usually topcoated for protection.(C) Cleaning operations--Operations in which organic solvent is used to remove coating materials from equipment used in wood furniture manufacturing operations.(D) Continuous coater--A finishing system that continuously applies finishing materials onto furniture parts moving along a conveyor system. Finishing materials that are not transferred to the part are recycled to the finishing material reservoir. Several types of application methods can be used with a continuous coater, including spraying, curtain coating, roll coating, dip coating, and flow coating.(E) Conventional air spray--A spray coating method in which the coating is atomized by mixing it with compressed air at an air pressure greater than 10 pounds per square inch gauge (psig) at the point of atomization. Airless and air-assisted airless spray technologies are not conventional air spray because the coating is not atomized by mixing it with compressed air. Electrostatic spray technology is also not conventional air spray because an electrostatic charge is employed to attract the coating to the workpiece. In addition, high-volume low-pressure (HVLP) spray technology is not conventional air spray because its pressure is less than 10 psig.(F) Finishing application station--The part of a finishing operation where the finishing material is applied (for example, a spray booth).(G) Finishing material--A coating used in the wood furniture industry. For the wood furniture manufacturing industry, such materials include, but are not limited to, basecoats, stains, washcoats, sealers, and topcoats.(H) Finishing operation--Those activities in which a finishing material is applied to a substrate and is subsequently air-dried, cured in an oven, or cured by radiation.(I) Organic solvent--A liquid containing VOCs that is used for dissolving or dispersing constituents in a coating; adjusting the viscosity of a coating; cleaning; or washoff. When used in a coating, the organic solvent evaporates during drying and does not become a part of the dried film.(J) Sealer--A finishing material used to seal the pores of a wood substrate before additional coats of finishing material are applied. Washcoats, which are used in some finishing systems to optimize aesthetics, are not sealers.(K) Stain--Any color coat having a solids content of no more than 8.0% by weight that is applied in single or multiple coats directly to the substrate. Includes, but is not limited to, nongrain raising stains, equalizer stains, sap stains, body stains, no-wipe stains, penetrating stains, and toners.(L) Strippable booth coating--A coating that is applied to a booth wall to provide a protective film to receive overspray during finishing operations; is subsequently peeled off and disposed; and reduces or eliminates the need to use organic solvents to clean booth walls.(M) Topcoat--The last film-building finishing material applied in a finishing system. A material such as a wax, polish, nonoxidizing oil, or similar substance that must be periodically reapplied to a surface over its lifetime to maintain or restore the reapplied material's intended effect is not considered to be a topcoat.(N) Touch-up and repair--The application of finishing materials to cover minor finishing imperfections.(O) Washcoat--A transparent special purpose coating having a solids content of 12% by weight or less. Washcoats are applied over initial stains to protect and control color and to stiffen the wood fibers in order to aid sanding.(P) Washoff operations--Those operations in which organic solvent is used to remove coating from a substrate.(Q) Wood furniture--Any product made of wood, a wood product such as rattan or wicker, or an engineered wood product such as particleboard that is manufactured under any of the following standard industrial classification codes: 2434 (wood kitchen cabinets), 2511 (wood household furniture, except upholstered), 2512 (wood household furniture, upholstered), 2517 (wood television, radios, phonograph and sewing machine cabinets), 2519 (household furniture not elsewhere classified), 2521 (wood office furniture), 2531 (public building and related furniture), 2541 (wood office and store fixtures, partitions, shelving and lockers), 2599 (furniture and fixtures not elsewhere classified), or 5712 (custom kitchen cabinets).(R) Wood furniture component--Any part that is used in the manufacture of wood furniture. Examples include, but are not limited to, drawer sides, cabinet doors, seat cushions, and laminated tops. However, foam seat cushions manufactured and fabricated at a facility that does not engage in any other wood furniture or wood furniture component manufacturing operation are excluded from this definition.(S) Wood furniture manufacturing operations--The finishing, cleaning, and washoff operations associated with the production of wood furniture or wood furniture components.</content><note type="source"><p>Source Note: The provisions of this §115.420 adopted to be effective April 7, 1998, 23 TexReg 3503; amended to be effective July 20, 2000, 25 TexReg 6752; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.421"><num value="115.421">§115.421</num><heading>Emission Specifications</heading><content>The owner or operator of the surface coating processes specified in §115.420(a) of this title (relating to Applicability and Definitions) shall not cause, suffer, allow, or permit volatile organic compound (VOC) emissions to exceed the specified emission limits in paragraphs (1) - (16) of this subsection. These limitations are based on the daily weighted average of all coatings delivered to each coating line, except for those in paragraph (9) of this subsection which are based on paneling surface area, and those in paragraph (15) of this subsection which, if using an averaging approach, must use one of the daily averaging equations within that paragraph. The owner or operator of a surface coating operation subject to paragraph (10) of the subsection may choose to comply by using the monthly weighted average option as defined in §115.420(c)(1)(YY) of this title.(1) Large appliance coating. VOC emissions from the application, flashoff, and oven areas during the coating of large appliances (prime and topcoat, or single coat) must not exceed 2.8 pounds per gallon of coating (minus water and exempt solvent) delivered to the application system (0.34 kilogram/liter (kg/liter)).(2) Metal furniture coating. VOC emissions from metal furniture coating lines (prime and topcoat, or single coat) must not exceed 3.0 pounds per gallon of coating (minus water and exempt solvent) delivered to the application system (0.36 kg/liter).(3) Coil coating. VOC emissions from the coating (prime and topcoat, or single coat) of metal coils must not exceed 2.6 pounds per gallon of coating (minus water and exempt solvent) delivered to the application system (0.31 kg/liter).(4) Paper coating. VOC emissions from the coating of paper (or specified tapes or films) must not exceed 2.9 pounds per gallon of coating (minus water and exempt solvent) delivered to the application system (0.35 kg/liter).(5) Fabric coating. VOC emissions from the coating of fabric must not exceed 2.9 pounds per gallon of coating (minus water and exempt solvent) delivered to the application system (0.35 kg/liter).(6) Vinyl coating. VOC emissions from the coating of vinyl fabrics or sheets must not exceed 3.8 pounds per gallon of coating (minus water and exempt solvent) delivered to the application system (0.45 kg/liter). Plastisol coatings should not be included in calculations. (7) Can coating. The following VOC emission limits must be achieved, on the basis of VOC solvent content per unit of volume of coating (minus water and exempt solvent) delivered to the application system:Attached Graphic(8) Miscellaneous metal parts and products (MMPP) coating. (A) VOC emissions from the coating of MMPP must not exceed the following limits for each surface coating type:Attached Graphic(B) If more than one emission limitation in subparagraph (A) of this paragraph applies to a specific coating, then the least stringent emission limitation applies.(C) All VOC emissions from non-exempt solvent washings must be included in determination of compliance with the emission limitations in subparagraph (A) of this paragraph unless the solvent is directed into containers that prevent evaporation into the atmosphere. (9) Factory surface coating of flat wood paneling. The following emission limits apply to each product category of factory-finished paneling (regardless of the number of coats applied):Attached Graphic(10) Aerospace coatings. The VOC content of coatings, including any VOC-containing materials added to the original coating supplied by the manufacturer, that are applied to aerospace vehicles or components must not exceed the following limits (in grams of VOC per liter of coating, less water and exempt solvent). The following applications are exempt from the VOC content limits of this paragraph: manufacturing or re-work of space vehicles or antique aerospace vehicles or components of each; touchup; United States Department of Defense classified coatings; and separate coating formulations in volumes less than 50 gallons per year to a maximum of 200 gallons per year for all such formulations at an account.(A) For the broad categories of primers, topcoats, and chemical milling maskants (Type I/II) which are not specialty coatings as listed in subparagraph (B) of this paragraph:(i) primer, 350;(ii) topcoats (including self-priming topcoats), 420; and(iii) chemical milling maskants:(I) Type I, 622; and(II) Type II, 160.(B) For specialty coatings:Attached Graphic(11) Automobile and light-duty truck manufacturing coating. The following VOC emission limits must be achieved, on the basis of solvent content per unit volume of coating (minus water and exempt solvents) delivered to the application system or for primer surfacer and top coat application, compliance may be demonstrated on the basis of VOC emissions per unit volume of solids deposited as determined by §115.425(3) of this title (relating to Testing Requirements).Attached Graphic(12) Vehicle refinishing coating (body shops). VOC emissions from coatings or solvents must not exceed the following limits, as delivered to the application system. Additional control requirements for vehicle refinishing (body shops) are referenced in §115.422 of this title (relating to Control Requirements).Attached Graphic(13) Surface coating of mirror backing.(A) VOC emissions from the coating of mirror backing must not exceed the following limits for each surface coating application method:(i) 4.2 pounds per gallon (0.50 kg/liter) of coating (minus water and exempt solvent) delivered to a curtain coating application system; and(ii) 3.6 pounds per gallon (0.43 kg/liter) of coating (minus water and exempt solvent) delivered to a roll coating application system.(B) All VOC emissions from solvent washings must be included in determination of compliance with the emission limitations in subparagraph (A) of this paragraph, unless the solvent is directed into containers that prevent evaporation into the atmosphere.(14) Surface coating of wood parts and products. VOC emissions from the coating of wood parts and products must not exceed the following limits, as delivered to the application system, for each surface coating type. All VOC emissions from solvent washings must be included in determination of compliance with the emission limitations in this paragraph, unless the solvent is directed into containers that prevent evaporation into the atmosphere.Attached Graphic(15) Surface coating at wood furniture manufacturing facilities. For facilities which are subject to this paragraph, adhesives are not considered to be coatings or finishing materials.(A) VOC emissions from finishing operations must be limited by:(i) using topcoats with a VOC content no greater than 0.8 kilogram of VOC per kilogram of solids (0.8 pound of VOC per pound of solids), as delivered to the application system; or(ii) using a finishing system of sealers with a VOC content no greater than 1.9 kilograms of VOC per kilogram of solids (1.9 pounds of VOC per pound of solids), as applied, and topcoats with a VOC content no greater than 1.8 kilograms of VOC per kilogram of solids (1.8 pounds of VOC per pound of solids), as delivered to the application system; or(iii) for wood furniture manufacturing facilities using acid-cured alkyd amino vinyl sealers or acid-cured alkyd amino conversion varnish topcoats, using sealers and topcoats that meet the following criteria:(I) if the wood furniture manufacturing facility uses acid-cured alkyd amino vinyl sealers and acid-cured alkyd amino conversion varnish topcoats, the sealer must contain no more than 2.3 kilograms of VOC per kilogram of solids (2.3 pounds of VOC per pound of solids), as applied, and the topcoat must contain no more than 2.0 kilograms of VOC per kilogram of solids (2.0 pounds of VOC per pound of solids), as delivered to the application system; or(II) if the wood furniture manufacturing facility uses a sealer other than an acid-cured alkyd amino vinyl sealer and acid-cured alkyd amino conversion varnish topcoats, the sealer must contain no more than 1.9 kilograms of VOC per kilogram of solids (1.9 pounds of VOC per pound of solids), as applied, and the topcoat must contain no more than 2.0 kilograms of VOC per kilogram of solids (2.0 pounds of VOC per pound of solids), as delivered to the application system; or(III) if the wood furniture manufacturing facility uses an acid-cured alkyd amino vinyl sealer and a topcoat other than an acid-cured alkyd amino conversion varnish topcoat, the sealer must contain no more than 2.3 kilograms of VOC per kilogram of solids (2.3 pounds of VOC per pound of solids), as applied, and the topcoat must contain no more than 1.8 kilograms of VOC per kilogram of solids (1.8 pounds of VOC per pound of solids), as delivered to the application system; or(iv) using an averaging approach and demonstrating that actual daily emissions from the wood furniture manufacturing facility are less than or equal to the lower of the actual versus allowable emissions using one of the following inequalities:Attached Graphic(v) using a vapor control system that will achieve an equivalent reduction in emissions as the requirements of clauses (i) or (ii) of this subparagraph. If this option is used, the requirements of §115.423(3) of this title do not apply; or(vi) using a combination of the methods presented in clauses (i) - (v) of this subparagraph.(B) Strippable booth coatings used in cleaning operations must not contain more than 0.8 kilogram of VOC per kilogram of solids (0.8 pound of VOC per pound of solids), as delivered to the application system.(16) Marine coatings.(A) The following VOC emission limits apply to the surface coating of ships and offshore oil or gas drilling platforms at shipbuilding and ship repair operations, and are based upon the VOC content of the coatings as delivered to the application system.Attached Graphic(B) For a coating to which thinning solvent is routinely or sometimes added, the owner or operator shall determine the VOC content as follows.(i) Prior to the first application of each batch, designate a single thinner for the coating and calculate the maximum allowable thinning ratio (or ratios, if the shipbuilding and ship repair operation complies with the cold-weather limits in addition to the other limits specified in subparagraph (A) of this paragraph) for each batch as follows.Attached Graphic(ii) If the volume fraction of solids in the batch as supplied Vs is not supplied directly by the coating manufacturer, the owner or operator shall determine Vs as follows.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §115.421 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 23, 1990, 15 TexReg 3857; amended to be effective July 17, 1991, 16 TexReg 3726; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective April 7, 1998, 23 TexReg3503; amended to be effective July 20, 2000, 25 TexReg 6752; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective March 26, 2020, 45 TexReg 2003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.422"><num value="115.422">§115.422</num><heading>Control Requirements</heading><content>In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Applicability and Definitions), the following control requirements apply. In Gregg, Nueces, and Victoria Counties, the control requirements in paragraph (5) of this section apply.(1) The owner or operator of each vehicle refinishing (body shop) operation shall minimize volatile organic compounds (VOC) emissions during equipment cleanup by using the following procedures:(A) install and operate a system that totally encloses spray guns, cups, nozzles, bowls, and other parts during washing, rinsing, and draining procedures. Non-enclosed cleaners may be used if the vapor pressure of the cleaning solvent is less than 100 millimeters of mercury (mm Hg) at 20 degrees Celsius (68 degrees Fahrenheit) and the solvent is directed towards a drain that leads directly to an enclosed remote reservoir;(B) keep all wash solvents in an enclosed reservoir that is covered at all times, except when being refilled with fresh solvents; and(C) keep all waste solvents and other cleaning materials in closed containers.(2) Each vehicle refinishing (body shop) operation must use coating application equipment with a transfer efficiency of at least 65%, unless otherwise specified in an alternate means of control approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control). High-volume, low-pressure (HVLP) spray guns are assumed to comply with the 65% transfer efficiency requirement.(3) The following requirements apply to each wood furniture manufacturing facility subject to §115.421(15) of this title (relating to Emission Specifications).(A) No compounds containing more than 8.0% by weight of VOC may be used for cleaning spray booth components other than conveyors, continuous coaters and their enclosures, and/or metal filters, unless the spray booth is being refurbished. If the spray booth is being refurbished, that is, the spray booth coating or other material used to cover the booth is being replaced, no more than 1.0 gallon of organic solvent may be used to prepare the booth prior to applying the booth coating.(B) Normally closed containers must be used for storage of finishing, cleaning, and washoff materials.(C) Conventional air spray guns may not be used for applying finishing materials except under one or more of the following circumstances:(i) to apply finishing materials that have a VOC content no greater than 1.0 kilogram of VOC per kilogram of solids (1.0 pound of VOC per pound of solids), as delivered to the application system;(ii) for touch-up and repair under the following circumstances:(I) the finishing materials are applied after completion of the finishing operation; or(II) the finishing materials are applied after the stain and before any other type of finishing material is applied, and the finishing materials are applied from a container that has a volume of no more than 2.0 gallons.(iii) if spray is automated, that is, the spray gun is aimed and triggered automatically, not manually;(iv) if emissions from the finishing application station are directed to a vapor control system;(v) the conventional air gun is used to apply finishing materials and the cumulative total usage of that finishing material is no more than 5.0% of the total gallons of finishing material used during that semiannual period; or(vi) the conventional air gun is used to apply stain on a part that:(I) the production speed is too high or the part shape is too complex for one operator to coat the part and the application station is not large enough to accommodate an additional operator; or(II) the excessively large vertical spray area of the part makes it difficult to avoid sagging or runs in the stain.(D) All organic solvent used for line cleaning or to clean spray guns must be pumped or drained into a normally closed container.(E) Emissions from washoff operations must be minimized by:(i) using normally closed tanks for washoff; and(ii) minimizing dripping by tilting or rotating the part to drain as much organic solvent as possible.(4) The following requirements apply to each shipbuilding and ship repair surface coating facility subject to §115.421(16) of this title.(A) All handling and transfer of VOC-containing materials to and from containers, tanks, vats, drums, and piping systems must be conducted in a manner that minimizes spills.(B) All containers, tanks, vats, drums, and piping systems must be free of cracks, holes, and other defects and remain closed unless materials are being added to or removed from them.(C) All organic solvent used for line cleaning or to clean spray guns must be pumped or drained into a normally closed container.(5) The following requirements apply to each aerospace vehicle or component coating process subject to §115.421(10) of this title.(A) One or more of the following application techniques must be used to apply any primer or topcoat to aerospace vehicles or components: flow/curtain coating; dip coating; roll coating; brush coating; cotton-tipped swab application; electrodeposition coating; HVLP spraying; electrostatic spraying; or other coating application methods that achieve emission reductions equivalent to HVLP or electrostatic spray application methods, unless one of the following situations apply:(i) any situation that normally requires the use of an airbrush or an extension on the spray gun to properly reach limited access spaces;(ii) the application of specialty coatings;(iii) the application of coatings that contain fillers that adversely affect atomization with HVLP spray guns and that the executive director has determined cannot be applied by any of the specified application methods;(iv) the application of coatings that normally have a dried film thickness of less than 0.0013 centimeter (0.0005 in.) and that the executive director has determined cannot be applied by any of the specified application methods in this subparagraph;(v) the use of airbrush application methods for stenciling, lettering, and other identification markings;(vi) the use of aerosol coating (spray paint) application methods; and(vii) touch-up and repair operations.(B) Cleaning solvents used in hand-wipe cleaning operations must meet the definition of aqueous cleaning solvent in §115.420(c)(1)(I) of this title (relating to Surface Coating Definitions) or have a VOC composite vapor pressure less than or equal to 45 mm Hg at 20 degrees Celsius, unless one of the following situations apply:(i) cleaning during the manufacture, assembly, installation, maintenance, or testing of components of breathing oxygen systems that are exposed to the breathing oxygen;(ii) cleaning during the manufacture, assembly, installation, maintenance, or testing of parts, subassemblies, or assemblies that are exposed to strong oxidizers or reducers (e.g., nitrogen tetroxide, liquid oxygen, hydrazine);(iii) cleaning and surface activation prior to adhesive bonding;(iv) cleaning of electronics parts and assemblies containing electronics parts;(v) cleaning of aircraft and ground support equipment fluid systems that are exposed to the fluid, including air-to-air heat exchangers and hydraulic fluid systems;(vi) cleaning of fuel cells, fuel tanks, and confined spaces;(vii) surface cleaning of solar cells, coated optics, and thermal control surfaces;(viii) cleaning during fabrication, assembly, installation, and maintenance of upholstery, curtains, carpet, and other textile materials used on the interior of the aircraft;(ix) cleaning of metallic and nonmetallic materials used in honeycomb cores during the manufacture or maintenance of these cores, and cleaning of the completed cores used in the manufacture of aerospace vehicles or components;(x) cleaning of aircraft transparencies, polycarbonate, or glass substrates;(xi) cleaning and solvent usage associated with research and development, quality control, or laboratory testing;(xii) cleaning operations, using nonflammable liquids, conducted within five feet of energized electrical systems. Energized electrical systems means any alternating current or direct current electrical circuit on an assembled aircraft once electrical power is connected, including interior passenger and cargo areas, wheel wells and tail sections; and(xiii) cleaning operations identified as essential uses under the Montreal Protocol that the United States Environmental Protection Agency (EPA) has allocated essential use allowances or exemptions in 40 Code of Federal Regulations §82.4 (as amended through May 10, 1995 (60 FR 24986)), including any future amendments promulgated by the EPA.(C) For cleaning solvents used in the flush cleaning of parts, assemblies, and coating unit components, the used cleaning solvent must be emptied into an enclosed container or collection system that is kept closed when not in use or captured with wipers provided they comply with the housekeeping requirements of subparagraph (E) of this paragraph. Aqueous and semiaqueous cleaning solvents are exempt from this subparagraph.(D) All spray guns must be cleaned by one or more of the following methods:(i) enclosed spray gun cleaning system provided that it is kept closed when not in use and leaks are repaired within 14 days from when the leak is first discovered. If the leak is not repaired by the 15th day after detection, the solvent must be removed and the enclosed cleaner must be shut down until the leak is repaired or its use is permanently discontinued;(ii) unatomized discharge of solvent into a waste container that is kept closed when not in use;(iii) disassembly of the spray gun and cleaning in a vat that is kept closed when not in use; or(iv) atomized spray into a waste container that is fitted with a device designed to capture atomized solvent emissions.(E) All fresh and used cleaning solvents used in solvent cleaning operations must be stored in containers that are kept closed at all times except when filling or emptying. Cloth and paper, or other absorbent applicators, moistened with cleaning solvents must be stored in closed containers. Cotton-tipped swabs used for very small cleaning operations are exempt from this subparagraph. In addition, the owner or operator shall implement handling and transfer procedures to minimize spills during filling and transferring the cleaning solvent to or from enclosed systems, vats, waste containers, and other cleaning operation equipment that hold or store fresh or used cleaning solvents. The requirements of this subparagraph are known collectively as housekeeping measures. Aqueous, semiaqueous, and hydrocarbon-based cleaning solvents, as defined in §115.420(c)(1) of this title, are exempt from this subparagraph.(6) Any surface coating operation in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas that becomes subject to §115.421 of this title by exceeding the exemption limits in §115.427 of this title (relating to Exemptions) is subject to the provisions in §115.421 of this title, even if throughput or emissions later fall below exemption limits unless emissions are maintained at or below the controlled emissions level achieved while complying with §115.421 of this title and one of the following conditions is met.(A) The project that caused the throughput or emission rate to fall below the exemption limits in §115.427 of this title must be authorized by a permit, permit amendment, standard permit, or permit by rule required by Chapter 116 or Chapter 106 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification; and Permits by Rule). If a permit by rule is available for the project, the owner or operator shall continue to comply with §115.421 of this title for 30 days after the filing of documentation of compliance with that permit by rule.(B) If authorization by permit, permit amendment, standard permit, or permit by rule is not required for the project, the owner or operator shall provide the executive director 30 days notice of the project in writing.(7) In the Bexar County, Dallas-Fort Worth, and Houston-Galveston-Brazoria areas, the owner or operator of a paper surface coating line subject to this division shall implement the following work practices to limit VOC emissions from storage, mixing, and handling of cleaning and cleaning-related waste materials.(A) All VOC-containing cleaning materials must be stored in closed containers.(B) Mixing and storage containers used for VOC-containing materials must be kept closed at all times except when depositing or removing these materials.(C) Spills of VOC-containing cleaning materials must be minimized.(D) VOC-containing cleaning materials must be conveyed from one location to another in closed containers or pipes.(E) VOC emissions from the cleaning of storage, mixing, and conveying equipment must be minimized.</content><note type="source"><p>Source Note: The provisions of this §115.422 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3726; amended to be effective November 1, 1991, 16 TexReg 5839; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective April 7, 1998, 23 TexReg 3503; amended to be effective July 20, 2000, 25 TexReg6752; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective December 29, 2011, 36 TexReg 8897; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.423"><num value="115.423">§115.423</num><heading>Alternate Control Requirements</heading><content>The alternate control requirements for surface coating processes in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas and in Gregg, Nueces, and Victoria Counties are as follows.(1) Emission calculations for surface coating operations performed to satisfy the conditions of §101.23 of this title (relating to Alternate Emission Reduction ("Bubble") Policy), §115.910 of this title (relating to Availability of Alternate Means of Control), or other demonstrations of equivalency with the specified emission limits in this division must be based on the pounds of volatile organic compounds (VOC) per gallon of solids for all affected coatings. The owner or operator shall use the following equation to convert emission limits from pounds of VOC per gallon of coating to pounds of VOC per gallon of solids:Attached Graphic(2) Any alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division, such as use of improved transfer efficiency, may be approved by the executive director in accordance with §115.910 of this title if emission reductions are demonstrated to be substantially equivalent.(3) If a vapor control system is used to control emissions from coating operations:(A) the capture and abatement system must be capable of achieving and maintaining emission reductions equivalent to the emission limitations of §115.421 of this title (relating to Emission Specifications) and an overall control efficiency of at least 80% of the VOC emissions from those coatings. The owner or operator shall use the following equation to determine the minimum overall control efficiency necessary to demonstrate equivalency with the emission limitations of §115.421 of this title:Attached Graphic(B) the owner or operator shall submit design data for each capture system and emission control device that is proposed for use to the executive director for approval. In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, capture efficiency testing must be performed in accordance with §115.425(4) of this title (relating to Testing Requirements).(4) For any surface coating process or processes at a specific property, the executive director may approve requirements different from those in §115.421(8) of this title based upon his determination that such requirements will result in the lowest emission rate that is technologically and economically reasonable. When such a determination is made, the executive director shall specify the date or dates by which such different requirements must be met and shall specify any requirements to be met in the interim. If the emissions resulting from such different requirements equal or exceed 25 tons a year for a property, the determinations for that property must be reviewed every five years. Executive director approval does not necessarily constitute satisfaction of all federal requirements nor eliminate the need for approval by the United States Environmental Protection Agency in cases where specified criteria for determining equivalency have not been clearly identified in applicable sections of this chapter.</content><note type="source"><p>Source Note: The provisions of this §115.423 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3726; amended to be effective November 1, 1991, 16 TexReg 5839; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective April 7, 1998, 23 TexReg 3503; amended to be effective July 20, 2000, 25 TexReg 6752; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.424"><num value="115.424">§115.424</num><heading>Inspection Requirements</heading><content>(a) The owner or operator of each surface coating process subject to §115.421 of this title (relating to Emissions Specifications) must provide samples, without charge, upon request by representatives of the executive director, EPA, or local air pollution control agency.(b) The representative or inspector requesting the sample will determine the amount of coating needed to test the sample to determine compliance.</content><note type="source"><p>Source Note: The provisions of this §115.424 adopted to be effective July 17, 1991, 16 TexReg 3726; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective July 20, 2000, 25 TexReg 6752.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.425"><num value="115.425">§115.425</num><heading>Testing Requirements</heading><content>The testing requirements for surface coating processes in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas and in Gregg, Nueces, and Victoria Counties are as follows.(1) The owner or operator shall determine compliance with §115.421 of this title (relating to Emission Specifications) by applying the following test methods, as appropriate, except as specified in paragraph (5) of this section. Where a test method also inadvertently measures compounds that are exempt solvent, an owner or operator may exclude these exempt solvents when determining compliance with an emission standard:(A) Test Method 24 (40 Code of Federal Regulations (CFR) Part 60, Appendix A) with a one-hour bake;(B) ASTM International Test Methods D 1186-06.01, D 1200-06.01, D 3794-06.01, D 2832-69, D 1644-75, and D 3960-81;(C) The United States Environmental Protection Agency (EPA) guidelines series document "Procedures for Certifying Quantity of Volatile Organic Compounds (VOC) Emitted by Paint, Ink, and Other Coatings (EPA-450/3-84-019)," as in effect December, 1984;(D) additional test procedures described in 40 Code of Federal Regulations (CFR) §60.446; or(E) minor modifications to these test methods approved by the executive director.(2) Compliance with §115.423(3) of this title (relating to Alternate Control Requirements) must be determined by applying the following test methods, as appropriate:(A) Test Methods 1-4 (40 CFR Part 60, Appendix A) for determining flow rates, as necessary;(B) Test Method 25 (40 CFR Part 60, Appendix A) for determining total gaseous nonmethane organic emissions as carbon;(C) Test Method 25A or 25B (40 CFR Part 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis;(D) additional performance test procedures described in 40 CFR §60.044; or(E) minor modifications to these test methods approved by the executive director.(3) Compliance with the alternative emission limits in §115.421(11) of this title must be determined by applying the following test methods, as appropriate:(A) Protocol for Determining the Daily VOC Emission Rate of Automobile and Light-Duty Truck Topcoat Operations (EPA 450/3-88-018); or(B) The procedure contained in this paragraph for determining daily compliance with the alternative emission limitation in §115.421(11) of this title for final repair. Calculation of occurrence weighted average for each combination of repair coatings (primer, specific basecoat, clearcoat) must be determined by the following procedure.(i) The characteristics identified below, which are represented in the following equations by the variables shown, are established for each repair material as sprayed:Attached Graphic(ii) The relative occurrence weighted usage is calculated as follows:Attached Graphic(iii) The occurrence weighted average (Q) in pounds of VOC per gallon of coating (minus water and exempt solvents) as applied for each potential combination of repair coatings is calculated according to paragraph (4) of this section.Attached Graphic(4) In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, the owner or operator of surface coating processes subject to §115.423(3) of this title shall measure the capture efficiency using applicable procedures outlined in 40 CFR §52.741, Subpart O, Appendix B. These procedures are: Procedure T-Criteria for and Verification of a Permanent or Temporary Total Enclosure; Procedure L-VOC Input; Procedure G.2-Captured VOC Emissions (Dilution Technique); Procedure F.1-Fugitive VOC Emissions from Temporary Enclosures; and Procedure F.2-Fugitive VOC Emissions from Building Enclosures.(A) Exemptions to capture efficiency testing requirements: (i) If a source installs a permanent total enclosure (PTE) that meets the specifications of Procedure T and directs all VOC to a control device, then the capture efficiency is assumed to be 100%, and the source is exempted from capture efficiency testing requirements. This does not exempt the source from performance of any control device efficiency testing that may be required. In addition, a source must demonstrate all criteria for a PTE are met during testing for control efficiency.(ii) If a source uses a control device designed to collect and recover VOC (e.g., carbon adsorption system), an explicit measurement of capture efficiency is not necessary if the following conditions are met. The overall control of the system can be determined by directly comparing the input liquid VOC to the recovered liquid VOC. The general procedure for use in this situation is given in 40 CFR §60.433, with the following additional restrictions.(I) The source must be able to equate solvent usage with solvent recovery on a 24-hour (daily) basis, rather than a 30-day weighted average. This must be done within 72 hours following each 24-hour period of the 30-day period.(II) The solvent recovery system (i.e., capture and control system) must be dedicated to a single process line (e.g., one process line venting to a carbon adsorber system); or if the solvent recovery system controls multiple process lines, the source must be able to demonstrate that the overall control (i.e., the total recovered solvent VOC divided by the sum of liquid VOC input to all process lines venting to the control system) meets or exceeds the most stringent standard applicable for any process line venting to the control system.(B) The capture efficiency must be calculated using one of the following four protocols referenced. Any affected source must use one of these protocols, unless a suitable alternative protocol is approved by the executive director and the EPA.(i) Gas/gas method using Temporary Total Enclosure (TTE). The EPA specifications to determine whether a temporary enclosure is considered a TTE are given in Procedure T. The capture efficiency equation to be used for this protocol is:Attached Graphic(ii) Liquid/gas method using TTE. The EPA specifications to determine whether a temporary enclosure is considered a TTE are given in Procedure T. The capture efficiency equation to be used for this protocol is:Attached Graphic(iii) Gas/gas method using the building or room in which the affected source is located as the enclosure (BE) and in which G and F are measured while operating only the affected facility. All fans and blowers in the BE must be operating as they would under normal production. The capture efficiency equation to be used for this protocol is:Attached Graphic(iv) Liquid/gas method using a BE in which L and F are measured while operating only the affected facility. All fans and blowers in the building or room must be operated as they would under normal production. The capture efficiency equation to be used for this protocol is:Attached Graphic(C) The following conditions must be met in measuring capture efficiency:(i) Any error margin associated with a test protocol may not be incorporated into the results of a capture efficiency test.(ii) All affected facilities must accomplish the initial capture efficiency testing by July 31, 1992 in Brazoria, Dallas, El Paso, Galveston, Harris, Jefferson, Orange, and Tarrant Counties, and by July 31, 1993 in Chambers, Collin, Denton, Fort Bend, Hardin, Liberty, Montgomery, and Waller Counties, except that all mirror backing coating facilities must accomplish the initial capture efficiency testing by July 31, 1994. Affected sources in the Bexar County area must conduct initial capture efficiency testing by no later than July 1, 2024.(iii) During an initial pretest meeting, the executive director and the source owner or operator shall identify those operating parameters that must be monitored to ensure that capture efficiency does not change significantly over time. These parameters must be monitored and recorded initially during the capture efficiency testing and thereafter during facility operation. The executive director may require a new capture efficiency test if the operating parameter values change significantly from those recorded during the initial capture efficiency test.(5) The following additional testing requirements apply to each aerospace vehicle or component coating facility subject to §115.421(10) of this title.(A) For coatings which are not waterborne (water-reducible), determine the VOC content of each formulation (less water and less exempt solvents) as applied using manufacturer's supplied data or Method 24 of 40 CFR Part 60, Appendix A. If there is a discrepancy between the manufacturer's formulation data and the results of the Method 24 analysis, compliance must be based on the results from the Method 24 analysis. For water-borne (water-reducible) coatings, manufacturer's supplied data alone can be used to determine the VOC content of each formulation.(B) For aqueous and semiaqueous cleaning solvents, manufacturers' supplied data must be used to determine the water content. (C) For hand-wipe cleaning solvents, manufacturers' supplied data or standard engineering reference texts or other equivalent methods shall be used to determine the vapor pressure or VOC composite vapor pressure for blended cleaning solvents.(D) Except for specialty coatings, compliance with the test method requirements of 40 CFR §63.750, (National Emission Standards for Aerospace Manufacturing and Rework Facilities), is considered to represent compliance with the requirements of this section.(6) Test methods other than those specified in paragraphs (1) - (5) of this section may be used if validated by 40 CFR Part 63, Appendix A, Test Method 301. For the purposes of this paragraph, substitute "executive director" each place that Test Method 301 references "administrator."</content><note type="source"><p>Source Note: The provisions of this §115.425 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 23, 1990, 15 TexReg 3857; amended to be effective July 17, 1991, 16 TexReg 3726; amended to be effective November 1, 1991, 16 TexReg 5839; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective July 20, 2000, 25 TexReg 6752; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.426"><num value="115.426">§115.426</num><heading>Monitoring and Recordkeeping Requirements</heading><content>The following recordkeeping requirements apply to the owner or operator of each surface coating process in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, and in Gregg, Nueces, and Victoria Counties. Records of non-exempt solvent washings are not required to be kept if the non-exempt solvent is directed into containers that prevent evaporation into the atmosphere.(1) The owner or operator shall satisfy the following recordkeeping requirements.(A) A material data sheet must be maintained that documents the volatile organic compound (VOC) content, composition, solids content, solvent density, and other relevant information regarding each coating and solvent available for use in the affected surface coating processes sufficient to determine continuous compliance with applicable control limits.(B) Records must be maintained of the quantity and type of each coating and solvent consumed during the specified averaging period if any of the coatings, as delivered to the coating application system, exceed the applicable control limits. Such records must be sufficient to calculate the applicable weighted average of VOC for all coatings.(i) As an alternative to the recordkeeping requirements of this subparagraph, the owner or operator of any vehicle refinishing (body shop) operation subject to §115.421(11) of this title may substitute the recordkeeping requirements specified in §106.436 of this title (relating to Auto Body Refinishing Facility (Previously Standard Exemption 124)) provided that all coatings and solvents meet the emission limits of §115.421(11) of this title. If the owner or operator of a vehicle refinishing (body shop) operation that uses any coating or solvent which exceeds the limits of §115.421(11) of this title, then the owner or operator shall maintain daily records of the quantity and type of each coating and solvent consumed in sufficient detail to calculate the daily weighted average of VOC for all coatings and solvents.(ii) As an alternative to the recordkeeping requirements of this subparagraph, the owner or operator of any wood parts and products coating operation subject to §115.421(14) of this title may substitute the recordkeeping requirements specified in §106.231 of this title (relating to Manufacturing, Refinishing, and Restoring Wood Products) provided that all coatings and solvents meet the emission limits of §115.421(14) of this title. If the owner or operator of a wood parts and products coating operation uses any coating or solvent which exceeds the limits of §115.421(14) of this title, then the owner or operator shall maintain daily records of the quantity and type of each coating and solvent consumed in sufficient detail to calculate the daily weighted average of VOC for all coatings and solvents.(iii) As an alternative to the recordkeeping requirements of this subparagraph, the owner or operator of any surface coating operation that qualifies for exemption under §115.427(3)(C) of this title (relating to Exemptions) shall maintain records of total gallons of coating and solvent used in each month, and total gallons of coating and solvent used in the previous 12 months.(C) Records shall be maintained of any testing conducted at an affected facility in accordance with the provisions specified in §115.425 of this title (relating to Testing Requirements).(D) Records required by subparagraphs (A) - (C) of this paragraph must be maintained for at least two years and must be made available upon request by representatives of the executive director, the United States Environmental Protection Agency (EPA), or any local air pollution control agency with jurisdiction.(2) The owner or operator of any surface coating facility that utilizes a vapor control system approved by the executive director in accordance with §115.423(3) of this title (relating to Alternate Control Requirements) shall:(A) install and maintain monitors to accurately measure and record operational parameters of all required control devices, as necessary, to ensure the proper functioning of those devices in accordance with design specifications, including:(i) continuous monitoring of the exhaust gas temperature immediately downstream of direct-flame incinerators and/or the gas temperature immediately upstream and downstream of any catalyst bed;(ii) the total amount of VOC recovered by carbon adsorption or other solvent recovery systems during a calendar month;(iii) continuous monitoring of carbon adsorption bed exhaust; and(iv) appropriate operating parameters for vapor control systems other than those specified in clauses (i) - (iii) of this subparagraph;(B) maintain records of any testing conducted in accordance with the provisions specified in §115.425(2) of this title; and(C) maintain all records at the affected facility for at least two years and make such records available to representatives of the executive director, EPA, or any local air pollution control agency with jurisdiction, upon request.(3) The owner or operator shall maintain, on file, the capture efficiency protocol submitted under §115.425(4) of this title. The owner or operator shall submit all results of the test methods and capture efficiency protocols to the executive director within 60 days of the actual test date. The owner or operator shall maintain records of the capture efficiency operating parameter values on site for a minimum of one year. If any changes are made to capture or control equipment, the owner or operator is required to notify the executive director in writing within 30 days of these changes and a new capture efficiency and/or control device destruction or removal efficiency test may be required.(4) The owner or operator shall maintain records sufficient to document the applicability of the conditions for exemptions referenced in §115.427 of this title.(5) The following additional requirements apply to each aerospace vehicle or component coating process subject to §115.421(10) of this title. The owner or operator shall:(A) for coatings:(i) maintain a current list of coatings in use with category and VOC content as applied; and(ii) record coating usage on an annual basis;(B) for aqueous and semiaqueous hand-wipe cleaning solvents, maintain a list of materials used with corresponding water contents;(C) for vapor pressure compliant hand-wipe cleaning solvents:(i) maintain a current list of cleaning solvents in use with their respective vapor pressures or, for blended solvents, VOC composite vapor pressures; and(ii) maintain a record cleaning solvent usage on an annual basis; and(D) for cleaning solvents with a vapor pressure greater than 45 millimeters of mercury at 20 degrees Celsius used in exempt hand-wipe cleaning operations:(i) maintain a list of exempt hand-wipe cleaning processes; and(ii) maintain a record cleaning solvent usage on an annual basis.(6) Except for specialty coatings, compliance with the recordkeeping requirements of 40 Code of Federal Regulations §63.752, (National Emission Standards for Aerospace Manufacturing and Rework Facilities), is considered to represent compliance with the requirements of this section.</content><note type="source"><p>Source Note: The provisions of this §115.426 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3726; amended to be effective November 1, 1991, 16 TexReg 5839; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective April 7, 1998, 23 TexReg 3503; amended to be effectiveJuly 20, 2000, 25 TexReg 6752; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.427"><num value="115.427">§115.427</num><heading>Exemptions</heading><content>In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions) and in Gregg, Nueces, and Victoria Counties the following exemptions apply.(1) The following coating operations are exempt from the miscellaneous metal parts and products surface coating emission specifications in §115.421(8) of this title (relating to Emission Specifications):(A) aerospace vehicles and components;(B) in the Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, vehicle refinishing (body shops); and(C) in the Beaumont-Port Arthur and Houston-Galveston-Brazoria areas, ships and offshore oil or gas drilling platforms.(2) The following coating operations are exempt from the factory surface coating of flat wood paneling emission specifications in §115.421(9) of this title:(A) the manufacture of exterior siding;(B) tile board; or(C) particle board used as a furniture component.(3) In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, the following exemptions apply to surface coating processes, except for vehicle refinishing (body shops) controlled by §115.421(12) of this title. Excluded from the volatile organic compounds (VOC) emission calculations are coatings and solvents used in surface coating activities that are not addressed by the surface coating categories of §115.421(1) - (16) or §115.453 of this title (relating to Control Requirements). For example, architectural coatings (i.e., coatings that are applied in the field to stationary structures and their appurtenances, to portable buildings, to pavements, or to curbs) at a property would not be included in the calculations.(A) Surface coating operations on a property that, when uncontrolled, will emit a combined weight of VOC of less than 3.0 pounds per hour and 15 pounds in any consecutive 24-hour period are exempt from §115.421 of this title and §115.423 of this title (relating to Alternate Control Requirements).(B) Surface coating operations on a property that, when uncontrolled, will emit a combined weight of VOC of less than 100 pounds in any consecutive 24-hour period are exempt from §115.421 and §115.423 of this title if documentation is provided to and approved by both the executive director and the United States Environmental Protection Agency to demonstrate that necessary coating performance criteria cannot be achieved with coatings that satisfy applicable emission specifications and that control equipment is not technically or economically feasible.(C) Surface coating operations on a property for which total coating and solvent usage does not exceed 150 gallons in any consecutive 12-month period are exempt from §115.421 and §115.423 of this title.(D) Mirror backing coating operations located on a property that, when uncontrolled, emit a combined weight of VOC less than 25 tons in one year (based on historical coating and solvent usage) are exempt from this division.(E) Wood furniture manufacturing facilities that are subject to and are complying with §115.421(15) of this title and §115.422(3) of this title (relating to Control Requirements) are exempt from §115.421(14) of this title. These wood furniture manufacturing facilities must continue to comply with §115.421(14) of this title until these facilities are in compliance with §115.421(15) and §115.422(3) of this title.(F) Wood furniture manufacturing facilities that, when uncontrolled, emit a combined weight of VOC from wood furniture manufacturing operations less than 25 tons per year (tpy) are exempt from §115.421(15) and §115.422(3) of this title.(G) In Hardin, Jefferson, and Orange Counties, wood parts and products coating facilities are exempt from §115.421(14) of this title.(H) In Hardin, Jefferson, and Orange Counties, shipbuilding and ship repair operations that, when uncontrolled, emit a combined weight of VOC from ship and offshore oil or gas drilling platform surface coating operations less than 50 tpy are exempt from §115.421(16) and §115.422(4) of this title.(I) In Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties, shipbuilding and ship repair operations that, when uncontrolled, emit a combined weight of VOC from ship and offshore oil or gas drilling platform surface coating operations less than 25 tpy are exempt from §115.421(16) and §115.422(4) of this title.(J) The following activities where cleaning and coating of aerospace vehicles or components may take place are exempt from this division: research and development, quality control, laboratory testing, and electronic parts and assemblies, except for cleaning and coating of completed assemblies.(4) Vehicle refinishing (body shops) in Hardin, Jefferson, and Orange Counties are exempt from §115.421(12) and §115.422(1) and (2) of this title.(5) The coating of vehicles at in-house (fleet) vehicle refinishing operations and the coating of vehicles by private individuals are exempt from §115.421(11)(B) and §115.422(1) and (2) of this title. This exemption is not applicable if the coating of a vehicle by a private individual occurs at a commercial operation.(6) Aerosol coatings (spray paint) are exempt from this division.(7) In Gregg, Nueces, and Victoria Counties, surface coating operations located at any property that, when uncontrolled, will emit a combined weight of VOC less than 550 pounds (249.5 kilograms) in any continuous 24-hour period are exempt from §115.421 of this title. Excluded from this calculation are coatings and solvents used in surface coating activities that are not addressed by the surface coating categories of §115.421(1) - (10) of this title. For example, architectural coatings (i.e., coatings that are applied in the field to stationary structures and their appurtenances, to portable buildings, to pavements, or to curbs) at a property would not be included in the calculation.(8) In the Dallas-Fort Worth and Houston-Galveston-Brazoria areas, the following surface coating categories that are subject to the requirements of Chapter 115, Subchapter E, Division 5 of this title (relating to Control Requirements for Surface Coating Processes) are exempt from the requirements in this division:(A) large appliance coating;(B) metal furniture coating;(C) miscellaneous metal parts and products coating;(D) each paper coating line with the potential to emit equal to or greater than 25 tpy of VOC from all coatings applied; and(E) automobile and light-duty truck manufacturing coating.(9) In the Dallas-Fort Worth and the Houston-Galveston-Brazoria areas, the re-coating of used miscellaneous metal parts and products at a designated on-site maintenance shop that was exempt from §115.421(8) of this title prior to January 1, 2012, or that begins operation on or after January 1, 2012, is exempt from all requirements in this division. The re-coating of used miscellaneous metal parts and products at a designated on-site maintenance shop that was subject to §115.421(8) of this title prior to January 1, 2012, remains subject to this division. For purposes of this exemption, a designated on-site maintenance shop is an area at a site where used miscellaneous metal parts or products are re-coated on a routine basis. Miscellaneous metal parts and products coating processes in Wise County are not subject to this division.</content><note type="source"><p>Source Note: The provisions of this §115.427 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3726; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective April 7, 1998, 23 TexReg 3503; amended to be effective July 20, 2000, 25 TexReg 6752; amended to be effective August 29, 2001, 26 TexReg6303;amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective October 20, 2005, 30 TexReg 6738; amended to be effective December 29, 2011, 36 TexReg 8897; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.429"><num value="115.429">§115.429</num><heading>Counties and Compliance Schedules</heading><content>(a) In Brazoria, Chambers, Collin, Dallas, Denton, Ellis, El Paso, Fort Bend, Galveston, Gregg, Hardin, Harris, Jefferson, Johnson, Kaufman, Liberty, Montgomery, Nueces, Orange, Parker, Rockwall, Tarrant, Victoria, and Waller Counties, the compliance date has passed and the owner or operator of a surface coating process shall continue to comply with this division.(b) In Hardin, Jefferson, and Orange Counties the compliance date has passed and the owner or operator of each shipbuilding and ship repair operation that, when uncontrolled, emits a combined weight of volatile organic compounds from ship and offshore oil or gas drilling platform surface coating operations equal to or greater than 50 tons per year and less than 100 tons per year shall continue to comply with this division.(c) The owner or operator of a paper surface coating process located in the Dallas-Fort Worth area, except Wise County, and Houston-Galveston-Brazoria area, as defined in §115.10 of this title (relating to Definitions), shall comply with the requirements in §115.422(7) of this title (relating to Control Requirements), no later than March 1, 2013.(d) The owner or operator of a surface coating process in Wise County shall comply with the requirements in this division as soon as practicable, but no later than January 1, 2017.(e) The owner or operator of a surface coating process in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise Counties that becomes subject to this division on or after the applicable compliance date in this section shall comply with the requirements in this division as soon as practicable, but no later than 60 days after becoming subject.(f) The owner or operator of a surface coating process in the Bexar County area subject to the requirements of this division shall comply with the requirements of this division no later than January 1, 2025. All affected persons of a surface coating process in the Bexar County area that becomes subject to this division on or after the applicable compliance date in this subsection shall comply with the requirements of this division as soon as practicable, but no later than 60 days after becoming subject.</content><note type="source"><p>Source Note: The provisions of this §115.429 adopted to be effective February 19, 1990, 15 TexReg 5491; amended to be effective July 23, 1990, 15 TexReg 3857; amended to be effective July 17, 1991, 16 TexReg 3726; amended to be effective November 1, 1991, 16 TexReg 5839; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective April7,1998, 23 TexReg 3503; amended to be effective July 20, 2000, 25 TexReg 6752; amended to be effective January 17, 2003, 28 TexReg 113; amended to be effective May 5, 2005, 30 TexReg 2522; amended to be effective October 20, 2005, 30 TexReg 6738; amended to be effective December 29, 2011, 36 TexReg 8897; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.430"><num value="115.430">§115.430</num><heading>Applicability and Definitions</heading><content>(a) Applicability. The requirements in this division apply to the following flexographic and rotogravure printing processes in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), and in Gregg, Nueces, and Victoria Counties:(1) packaging rotogravure printing lines;(2) publication rotogravure printing lines;(3) flexographic printing lines; and(4) flexible package printing lines.(b) Definitions. Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382) or in §§3.2, 101.1, or 115.10 of this title (relating to Definitions), the terms in this division have the meanings commonly used in the field of air pollution control. In addition, the following meanings apply in this division unless the context clearly indicates otherwise.(1) Cleaning operation--The cleaning of a press, press parts, or removing dried ink from areas around a press. A cleaning operation does not include cleaning electronic components of a press; cleaning in pre-press (e.g., platemaking) or post-press (e.g., binding) operations; the use of janitorial supplies (e.g., detergents or floor cleaners) to clean areas around a press; and parts washers or cold cleaners.(2) Daily weighted average--The total weight of volatile organic compounds (VOC) emissions from all materials subject to the same VOC content limit in §115.432 of this title (relating to Control Requirements) divided by the total volume or weight of those materials (minus water and exempt solvent), where applicable, or divided by the total volume or weight of solids applied to each printing line per day.(3) Flexible package printing--Flexographic or rotogravure printing on any package or part of a package the shape of which can be readily changed including, but not limited to, bags, pouches, liners, and wraps using paper, plastic, film, aluminum foil, metallized or coated paper or film, or any combination of these materials.(4) Flexographic printing--A method of printing in which the image areas are raised above the non-image areas, and the image carrier is made of an elastomeric material.(5) Packaging rotogravure printing--Any rotogravure printing on paper, paper board, metal foil, plastic film, or any other substrate that is, in subsequent operations, formed into packaging products or labels.(6) Publication rotogravure printing--Any rotogravure printing on paper that is subsequently formed into books, magazines, catalogues, brochures, directories, newspaper supplements, or other types of printed materials.(7) Rotogravure printing--The application of words, designs, or pictures to any substrate by means of a roll printing technique that involves a recessed image area. The recessed area is loaded with ink and pressed directly to the substrate for image transfer.</content><note type="source"><p>Source Note: The provisions of this §115.430 adopted to be effective January 18, 2001, 26 TexReg 493; amended to be effective December 29, 2011, 36 TexReg 8897; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.431"><num value="115.431">§115.431</num><heading>Exemptions</heading><content>(a) In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), the following exemptions apply.(1) In the Beaumont-Port Arthur, Dallas-Fort Worth, and El Paso areas, all rotogravure and flexographic printing lines on a property that, when uncontrolled, have a maximum potential to emit a combined weight of volatile organic compounds (VOC) less than 50 tons per year (based on historical ink and VOC solvent usage, and at maximum production capacity) are exempt from the requirements in §115.432(a) of this title (relating to Control Requirements).(2) In the Dallas-Fort Worth and Houston-Galveston-Brazoria areas, all rotogravure and flexographic printing lines on a property that, when uncontrolled, have a maximum potential to emit a combined weight of VOC less than 25 tons per year (based on historical ink and VOC solvent usage, and at maximum production capacity) are exempt from the requirements in §115.432(a) of this title.(3) Beginning March 1, 2013, in the Dallas-Fort Worth and Houston-Galveston-Brazoria areas, and beginning January 1, 2025 in the Bexar County area, all flexible package printing lines located on a property that have a combined weight of total actual VOC emissions less than 3.0 tons per year from all coatings, as defined in §101.1 of this title (relating to Definitions), and all associated cleaning operations are exempt from the requirements in §115.432(c) and (d) of this title.(4) Beginning March 1, 2013, in the Dallas-Fort Worth and Houston-Galveston-Brazoria areas, and beginning January 1, 2025 in the Bexar County area, each flexible package printing line that, when uncontrolled, has a maximum potential to emit total VOC emissions less than 25 tons per year from all coatings is exempt from the requirements in §115.432(c) of this title.(b) In Gregg, Nueces, and Victoria Counties, all rotogravure and flexographic printing lines on a property that, when uncontrolled, emit a combined weight of VOC less than 100 tons per year (based on historical ink and VOC solvent usage) are exempt from the requirements in §115.432(b) of this title.</content><note type="source"><p>Source Note: The provisions of this §115.430 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.432"><num value="115.432">§115.432</num><heading>Control Requirements</heading><content>(a) In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), the control requirements of this subsection apply. Beginning March 1, 2013, this subsection no longer applies to flexible package printing lines in the Dallas-Fort Worth and Houston-Galveston-Brazoria areas that are required to comply with the requirements in subsection (c) of this section. In the Bexar County area, the control requirements of this subsection apply to flexographic printing lines, packaging rotogravure printing lines, and publication rotogravure printing lines, but not flexible packaging lines, which are required to comply with the requirements in subsection (c) of this section.(1) The owner or operator shall limit the volatile organic compounds (VOC) emissions from solvent-containing ink used on each packaging rotogravure, publication rotogravure, flexible package, and flexographic printing line by using one of the following options.(A) The owner or operator shall apply low solvent ink with a volatile fraction containing 25% by volume or less of VOC solvent and 75% by volume or more of water and exempt solvent.(B) The owner or operator shall apply high solids solvent-borne ink containing 60% by volume or more of nonvolatile material (minus water and exempt solvent).(C) The owner or operator shall operate a vapor control system to reduce the VOC emissions from an effective capture system by at least 90% by weight. The design and operation of the capture system for each printing line must be consistent with good engineering practice and must achieve, as demonstrated to the satisfaction of the executive director, upon request, of at least the following weight percentages:(i) 75% for a publication rotogravure process;(ii) 65% for a packaging rotogravure process;(iii) 60% for a flexographic printing process; or(iv) for a flexible package printing process, the overall control efficiency in clause (ii) or (iii) of this subparagraph, depending on the type of press used.(2) A flexographic and rotogravure printing line that becomes subject to paragraph (1) of this subsection by exceeding the exemption limits in §115.431(a) of this title (relating to Exemptions) is subject to the provisions of this subsection even if throughput or emissions later fall below exemption limits unless emissions are maintained at or below the controlled emissions level achieved while complying with paragraph (1) of this subsection and one of the following conditions is met.(A) The project that caused the throughput or emission rate to fall below the exemption limits in §115.431(a) of this title must be authorized by a permit, permit amendment, standard permit, or permit by rule required by Chapter 116 of this title (relating to Control of Air Pollution by Permit for New Construction or Modification) or Chapter 106 of this title (relating to Permits by Rule). If a permit by rule is available for the project, the owner or operator shall continue to comply with paragraph (1) of this subsection for 30 days after the filing of documentation of compliance with that permit by rule.(B) If authorization by permit, permit amendment, standard permit, or permit by rule is not required for the project, the owner or operator shall provide the executive director 30 days notice of the project in writing.(3) Any capture efficiency testing of the capture system must be conducted in accordance with §115.435(a) of this title (relating to Testing Requirements).(b) In Gregg, Nueces, and Victoria Counties, the owner or operator shall limit the VOC emissions from solvent-containing ink used on each packaging rotogravure, publication rotogravure, flexible package, and flexographic printing line by using one of the following options.(1) The owner or operator shall apply low solvent ink with a volatile fraction containing 25% by volume or less of VOC solvent and 75% by volume or more of water and exempt solvent.(2) The owner or operator shall apply high solids solvent-borne ink containing 60% by volume or more of nonvolatile material (minus water and exempt solvent).(3) The owner or operator shall operate a vapor control system to reduce the VOC emissions from an effective capture system by at least 90% by weight. The design and operation of the capture system for each printing line must be consistent with good engineering practice and must achieve an overall control efficiency, as demonstrated to the satisfaction of the executive director, upon request, of at least the following weight percentages:(A) 75% for a publication rotogravure process;(B) 65% for a packaging rotogravure process;(C) 60% for a flexographic printing process; or(D) for a flexible package printing process, the overall control efficiency in subparagraph (B) or (C) of this paragraph, depending on the type of press used.(c) Beginning March 1, 2013, in the Dallas-Fort Worth and Houston-Galveston-Brazoria areas, and beginning January 1, 2025, in the Bexar County area, the following control requirements apply to each flexible package printing line.(1) The owner or operator shall limit the VOC emissions from coatings, as defined in §101.1 of this title (relating to Definitions), applied on each flexible package printing line by using one of the following options. These limits are based on the daily weighted average, as defined in §115.430(b) of this title (relating to Applicability and Definitions).(A) The owner or operator shall limit the VOC emissions from the coatings to 0.80 pound of VOC per pound of solids applied. The VOC emission limit can be met through the use of low-VOC coatings or a combination of coatings and the operation of a vapor control system.(B) The owner or operator shall limit the VOC emissions from the coatings to 0.16 pound of VOC per pound of coating applied. The VOC emission limit can be met through the use of low-VOC coatings or a combination of coatings and the operation of a vapor control system.(C) The owner or operator shall operate a vapor control system that achieves an overall control efficiency of at least 80% by weight.(2) A flexographic and rotogravure printing line that becomes subject to paragraph (1) of this subsection by exceeding the exemption limits in §115.431(a) of this title is subject to paragraph (1) of this subsection even if throughput or emissions later fall below exemption limits unless emissions are maintained at or below the controlled emissions level achieved while complying with paragraph (1) of this subsection and one of the following conditions is met.(A) The project that caused the throughput or emission rate to fall below the exemption limits in §115.431(a) of this title must be authorized by a permit, permit amendment, standard permit, or permit by rule required by Chapter 116 of this title or Chapter 106 of this title. If a permit by rule is available for the project, the owner or operator shall continue to comply with paragraph (1) of this subsection for 30 days after the filing of documentation of compliance with that permit by rule.(B) If authorization by permit, permit amendment, standard permit, or permit by rule is not required for the project, the owner or operator shall provide the executive director 30 days notice of the project in writing.(3) An owner or operator applying coatings in combination with a vapor control system to meet the VOC emission limits in paragraph (1)(A) or (B) of this subsection shall use the following equation to determine the minimum overall control efficiency necessary to demonstrate equivalency. Control device and capture efficiency testing must be performed in accordance with the testing requirements in §115.435(a) of this title.Attached Graphic(d) The owner or operator of a flexible package printing process shall implement the following work practices for cleaning materials:(1) keep all cleaning solvents and used shop towels in closed containers; and(2) convey cleaning solvents from one location to another in closed containers or pipes.</content><note type="source"><p>Source Note: The provisions of this §115.432 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3728; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective December 29, 2011, 36 TexReg 8897; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.433"><num value="115.433">§115.433</num><heading>Alternate Control Requirements</heading><content>For the owner or operator of a flexographic or rotogravure printing line subject to this division, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.</content><note type="source"><p>Source Note: The provisions of this §115.433 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective December 29, 2011, 36 TexReg 8897.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.435"><num value="115.435">§115.435</num><heading>Testing Requirements</heading><content>(a) In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), compliance with the control requirements in §115.432 of this title (relating to Control Requirements) must be determined by applying the following test methods, as appropriate: (1) Methods 1 - 4 (40 Code of Federal Regulations (CFR) Part 60, Appendix A) for determining flow rates, as necessary;(2) Method 24 (40 CFR Part 60, Appendix A) for determining the volatile organic compounds (VOC) content and density of printing inks and related coatings;(3) Method 25 (40 CFR Part 60, Appendix A) for determining total gaseous nonmethane organic emissions as carbon;(4) Methods 25A or 25B (40 CFR Part 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis;(5) the United States Environmental Protection Agency (EPA) guidelines series document "Procedures for Certifying Quantity of Volatile Organic Compounds Emitted by Paint, Ink, and Other Coatings," EPA-450/3-84-019, as in effect December 1984;(6) additional performance test procedures described in 40 CFR §60.444 (as amended through October 18, 1983 (48 FR 48375));(7) minor modifications to these methods and procedures approved by the executive director; and(8) for the capture efficiency, the applicable procedures outlined in 40 CFR §52.741, Subpart O, Appendix B (as amended through October 21, 1996 (61 FR 54559)). These procedures are: Procedure T - Criteria for and Verification of a Permanent or Temporary Total Enclosure; Procedure L - VOC Input; Procedure G.2 - Captured VOC Emissions (Dilution Technique); Procedure F.1 - Fugitive VOC Emissions from Temporary Enclosures; Procedure F.2 - Fugitive VOC Emissions from Building Enclosures.(A) The following exemptions apply to capture efficiency testing requirements.(i) If a source installs a permanent total enclosure that meets the specifications of Procedure T and that directs all VOC to a control device, then the capture efficiency is assumed to be 100%, and the source is exempt from capture efficiency testing requirements. This does not exempt the source from performance of any control device efficiency testing that may be required. In addition, a source must demonstrate all criteria for a permanent total enclosure are met during testing for control efficiency.(ii) If a source uses a control device designed to collect and recover VOC (e.g., carbon adsorption system), an explicit measurement of capture efficiency is not necessary if the following conditions are met. The overall control of the system can be determined by directly comparing the input liquid VOC to the recovered liquid VOC. The general procedure for use in this situation is given in 40 CFR §60.433 (as amended through October 17, 2000 (65 FR 61761)) with the following additional restrictions.(I) The source must be able to equate solvent usage with solvent recovery on a 24-hour (daily) basis, rather than a 30-day weighted average. This verification must be done within 72 hours following each 24-hour period of the 30-day period specified in 40 CFR §60.433 (as amended through October 17, 2000 (65 FR 61761)).(II) The solvent recovery system (i.e., capture and control system) must be dedicated to a single process line (e.g., one process line venting to a carbon adsorption system); or if the solvent recovery system controls multiple process lines, the source must be able to demonstrate that the overall control (i.e., the total recovered solvent VOC divided by the sum of liquid VOC input to all process lines venting to the control system) meets or exceeds the most stringent standard applicable for any process line venting to the control system.(B) The capture efficiency must be calculated using one of the following four protocols referenced. The owner or operator of any affected source shall use one of these protocols, unless a suitable alternative protocol is approved by the executive director and the EPA.(i) Gas/gas method using temporary total enclosure (TTE). The EPA specifications to determine whether a temporary enclosure is considered a TTE are given in Procedure T. The following equation must be used to determine the capture efficiency for this protocol.Attached Graphic(ii) Liquid/gas method using TTE. The EPA specifications to determine whether a temporary enclosure is considered a TTE are given in Procedure T. The following equation must be used to determine the capture efficiency for this protocol.Attached Graphic(iii) Gas/gas method using the building or room enclosure (BE) in which the affected source is located and in which the mass of VOC captured and delivered to a control device and the mass of fugitive VOC that escapes from building enclosure are measured while operating only the affected facility. All fans and blowers in the BE must be operating as they would under normal production. The following equation must be used to determine the capture efficiency for this protocol.Attached Graphic(iv) Liquid/gas method using a BE in which the mass of liquid VOC input to process and the mass of fugitive VOC that escapes from BE are measured while operating only the affected facility. All fans and blowers in the BE must be operated as they would under normal production. The following equation must be used to determine the capture efficiency for this protocol.Attached Graphic(C) The operating parameters selected for monitoring of the capture system for compliance with the requirements in §115.436(a) of this title (relating to Monitoring and Recordkeeping Requirements) must be monitored and recorded during the initial capture efficiency testing and thereafter during facility operation. The executive director may require a new capture efficiency test if the operating parameter values change significantly from those recorded during the initial capture efficiency test.(b) In Gregg, Nueces, and Victoria Counties, compliance with the requirements in this division must be determined by applying the following test methods, as appropriate:(1) Methods 1 - 4 (40 CFR Part 60, Appendix A) for determining flow rates, as necessary;(2) Method 24 (40 CFR Part 60, Appendix A) for determining the VOC content and density of printing inks and related coatings;(3) Method 25 (40 CFR Part 60, Appendix A) for determining total gaseous nonmethane organic emissions as carbon;(4) Methods 25A or 25B (40 CFR Part 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis;(5) the EPA guidelines series document "Procedures for Certifying Quantity of Volatile Organic Compounds Emitted by Paint, Ink, and Other Coatings," EPA-450/3-84-019, as in effect December 1984;(6) additional performance test procedures described in 40 CFR §60.444 (as amended through October 18, 1983 (48 FR 48375)); or(7) minor modifications to these test methods and procedures approved by the executive director.(c) Methods other than those specified in subsections (a)(1) - (6) and (b)(1) - (6) of this section may be used if approved by the executive director and validated using Method 301 (40 CFR Part 63, Appendix A). For the purposes of this subsection, substitute "executive director" each place that Method 301 references "administrator."</content><note type="source"><p>Source Note: The provisions of this §115.435 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3728; amended to be effective November 1, 1991, 16 TexReg 5843; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective December 29, 2011, 36 TexReg 8897; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.436"><num value="115.436">§115.436</num><heading>Monitoring and Recordkeeping Requirements</heading><content>(a) In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), the owner or operator of a rotogravure or flexographic printing line subject to this division shall:(1) maintain records of the volatile organic compounds (VOC) content of all inks as applied to the substrate. Additionally, records of the quantity of each ink and solvent used must be maintained. The composition of inks may be determined by the methods referenced in §115.435(a) of this title (relating to Testing Requirements) or by examining the manufacturer's formulation data and the amount of dilution solvent added to adjust the viscosity of inks prior to application to the substrate;(2) maintain daily records of the quantity of each ink and solvent used at a facility subject to the requirements of an alternate means of control approved by the executive director in accordance with §115.433 of this title (relating to Alternate Control Requirements) that allows the application of inks exceeding the applicable control limits. Such records must be sufficient to demonstrate compliance with the applicable emission limitation on a daily weighted average;(3) install and maintain monitors to continuously measure and record operational parameters of any control device installed to meet applicable control requirements. Such records must be sufficient to demonstrate proper functioning of those devices to design specifications, including:(A) the exhaust gas temperature of direct-flame incinerators or gas temperature immediately upstream and downstream of any catalyst bed;(B) the total amount of VOC recovered by a carbon adsorption or other solvent recovery system during a calendar month;(C) the exhaust gas VOC concentration of any carbon adsorption system, as defined in §115.10 of this title, to determine if breakthrough has occurred; and(D) the dates and reasons for any maintenance and repair of the required control devices and the estimated quantity and duration of VOC emissions during such activities;(4) maintain the results of any testing conducted at an affected facility in accordance with the provisions specified in §115.435(a) of this title;(5) maintain all records at the affected facility for at least two years and make such records available upon request to authorized representatives of the executive director, the United States Environmental Protection Agency (EPA), or any local air pollution agency with jurisdiction; and(6) maintain on file the capture efficiency protocol submitted under §115.435(a)(8) of this title. The owner or operator shall submit all results of the test methods and capture efficiency protocols to the executive director within 60 days of the actual test date. The source owner or operator shall maintain records of the capture efficiency operating parameter values on-site for a minimum of one year. If any changes are made to capture or control equipment, the owner or operator is required to notify the executive director in writing within 30 days of these changes, and a new capture efficiency or control device destruction or removal efficiency test may be required.(b) In Gregg, Nueces, and Victoria Counties, the owner or operator of any rotogravure or flexographic printing line shall:(1) maintain records of the VOC content of all inks as applied to the substrate. Additionally, records of the quantity of each ink and solvent used must be maintained. The composition of inks may be determined by the methods referenced in §115.435(b) of this title or by examining the manufacturer's formulation data and the amount of dilution solvent added to adjust the viscosity of inks prior to application to the substrate;(2) maintain daily records of the quantity of each ink and solvent used at a facility subject to the requirements of an alternate means of control approved by the executive director in accordance with §115.433 of this title that allows the application of inks exceeding the applicable control limits. Such records must be sufficient to demonstrate compliance with the applicable emission limitation on a daily weighted average;(3) install and maintain monitors to continuously measure and record operational parameters of any control device installed to meet applicable control requirements. Such records must be sufficient to demonstrate proper functioning of those devices to design specifications, including:(A) the exhaust gas temperature of direct-flame incinerators or the gas temperature immediately upstream and downstream of any catalyst bed;(B) the total amount of VOC recovered by a carbon adsorption or other solvent recovery system during a calendar month;(C) in Victoria County, the exhaust gas VOC concentration of any carbon adsorption system, as defined in §115.10 of this title, to determine if breakthrough has occurred; and(D) the dates and reasons for any maintenance and repair of the required control devices and the estimated quantity and duration of VOC emissions during such activities;(4) maintain the results of any testing conducted at an affected facility in accordance with the provisions specified in §115.435(b) of this title; and(5) maintain all records at the affected facility for at least two years and make such records available upon request to authorized representatives of the executive director, the EPA, or any local air pollution agency with jurisdiction.(c) Beginning March 1, 2013, in the Dallas-Fort Worth and Houston-Galveston-Brazoria areas, and beginning January 1, 2025, in the Bexar County area, the owner or operator of a flexible package printing line subject to this division shall comply with the following monitoring and recordkeeping requirements.(1) The owner or operator shall maintain records of the VOC content of all coatings, as defined in §101.1 of this title (relating to Definitions), as applied to the substrate. The composition of coatings may be determined by the methods referenced in §115.435(a) of this title or by examining the manufacturer's formulation data and the amount of dilution solvent added to adjust the viscosity of coatings prior to application to the substrate. Additionally, records of the quantity of each coating used must be maintained.(2) For flexible package printing lines subject to the control requirements in §115.432(c) of this title (relating to Control Requirements), the owner or operator shall maintain records of the quantity and type of each coating and solvent consumed if any of the coatings, as applied, exceed the applicable VOC content or emission limits in §115.432(c) of this title. Records must be sufficient to demonstrate compliance with the applicable VOC content or emission limit on a daily weighted average.(3) For flexible package printing lines subject to the control requirements in §115.432(a) of this title, the owner or operator shall maintain daily records of the quantity of each ink and solvent used at a facility subject to the requirements of an alternate means of control approved by the executive director in accordance with §115.433 of this title that allows the application of inks exceeding the applicable control limits. Such records must be sufficient to demonstrate compliance with the applicable emission limitation in §115.432(a) of this title on a daily weighted average.(4) The owner or operator shall install and maintain monitors to continuously measure and record operational parameters of any control device installed to meet applicable control requirements in §115.432(a) or (c) of this title. Such records must be sufficient to demonstrate proper functioning of those devices to design specifications, including:(A) the exhaust gas temperature of direct-flame incinerators or gas temperature immediately upstream and downstream of any catalyst bed;(B) the total amount of VOC recovered by a carbon adsorption or other solvent recovery system during a calendar month;(C) the exhaust gas VOC concentration of any carbon adsorption system, as defined in §115.10 of this title, to determine if breakthrough has occurred; and(D) the dates and reasons for any maintenance and repair of the required control devices and the estimated quantity and duration of VOC emissions during such activities.(5) The owner or operator shall maintain the results of any testing conducted at an affected facility in accordance with the provisions specified in §115.435(a) of this title.(6) The owner or operator shall maintain all records at the affected facility for at least two years and make such records available upon request to authorized representatives of the executive director, the EPA, or any local air pollution agency with jurisdiction.(7) The owner or operator shall maintain on file the capture efficiency protocol submitted under §115.435(a)(8) of this title. The owner or operator shall submit all results of the test methods and capture efficiency protocols to the executive director within 60 days of the actual test date. The source owner or operator shall maintain records of the capture efficiency operating parameter values on-site for a minimum of one year. If any changes are made to capture or control equipment, the owner or operator is required to notify the executive director in writing within 30 days of these changes, and a new capture efficiency or control device destruction or removal efficiency test may be required.</content><note type="source"><p>Source Note: The provisions of this §115.436 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3728; amended to be effective November 1, 1991, 16 TexReg 5843; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective December 29, 2011, 36 TexReg 8897; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.439"><num value="115.439">§115.439</num><heading>Counties and Compliance Schedules</heading><content>(a) Except as specified in subsection (c) and (d) of this section, for the owner or operator of a flexographic or rotogravure printing line subject to this division in Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Gregg, Hardin, Harris, Jefferson, Liberty, Montgomery, Nueces, Orange, Tarrant, Victoria, and Waller Counties the compliance date has already passed and the owner or operator shall continue to comply with applicable sections of this division.(b) Except as specified in subsection (c) and (d) of this section, in Ellis, Johnson, Kaufman, Parker, and Rockwall Counties the compliance date has already passed and the owner or operator of a flexographic or rotogravure printing line subject to this division shall continue to comply with this division.(c) The owner or operator of a flexible package printing line in the Dallas-Fort Worth and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), shall comply with the requirements in §115.432(c) and (d) and §115.436(c) of this title (relating to Control Requirements; and Monitoring and Recordkeeping Requirements) no later than March 1, 2013. Testing required by §115.435 of this title (relating to Testing Requirements) to demonstrate compliance with the requirements of §115.432(c) of this title must be completed, and the results submitted to the executive director no later than March 1, 2013.(d) The owner or operator of a flexible package printing line in the Bexar County, Dallas-Fort Worth, and Houston-Galveston-Brazoria areas that becomes subject to the requirements of this division on or after the applicable compliance date in this section shall comply with the requirements in this division as soon as practicable, but no later than 60 days after becoming subject.(e) The owner or operator of a flexographic or rotogravure printing process in the Bexar County area subject to the requirements of this division shall comply with the requirements of this division no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §115.439 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3728; amended to be effective November 1, 1991, 16 TexReg 5843; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective December 7, 2006, 31 TexReg 9840; amended to be effective December 29, 2011, 36 TexReg 8897; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.440"><num value="115.440">§115.440</num><heading>Applicability and Definitions</heading><content>(a) Applicability. The provisions in this division apply to offset lithographic printing lines located in the Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions).(b) Definitions. Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382) or in §§3.2, 101.1, and 115.10 of this title (relating to Definitions), the terms in this division have the meanings commonly used in the field of air pollution control. In addition, the following meanings apply unless the context clearly indicates otherwise.(1) Alcohol--Any of the hydroxyl-containing organic compounds with a molecular weight equal to or less than 74.12, which includes methanol, ethanol, propanol, and butanol.(2) Alcohol substitutes--Nonalcohol additives that contain volatile organic compounds and are used in the fountain solution to reduce the surface tension of water or prevent ink piling.(3) Batch--A supply of fountain solution or cleaning solution that is prepared and used without alteration until completely used or removed from the printing process.(4) Cleaning solution--Liquids used to remove ink and debris from the operating surfaces of the printing press and its parts.(5) Fountain solution--A mixture of water, nonvolatile printing chemicals, and a liquid additive that reduces the surface tension of the water so that it spreads easily across the printing plate surface. The fountain solution wets the non-image areas so that the ink is maintained within the image areas.(6) Heatset--Any operation where heat is required to evaporate ink oil from the printing ink.(7) Lithography--A plane-o-graphic printing process where the image and non-image areas are on the same plane of the printing plate. The image and non-image areas are chemically differentiated so the image area is oil receptive and the non-image area is water receptive.(8) Major printing source--All offset lithographic printing lines located on a property with combined uncontrolled emissions of volatile organic compounds (VOC) greater than or equal to:(A) 50 tons of VOC per calendar year before and 25 tons of VOC per calendar year on and after November 7, 2025 in the Dallas-Fort Worth area as defined in §115.10 of this title (relating to Definitions), except Wise County;(B) 25 tons of VOC per calendar year in the Houston-Galveston-Brazoria area, as defined in §115.10 of this title; (C) 100 tons of VOC per calendar year before and 25 tons of VOC per calendar year on and after November 7, 2025 in Wise County; or(D) 100 tons of VOC per calendar year on and after January 1, 2025 in the Bexar County area.(9) Minor printing source--All offset lithographic printing lines located on a property with combined uncontrolled emissions of volatile organic compounds (VOC) less than:(A) 50 tons of VOC per calendar year before and 25 tons of VOC per calendar year on and after November 7, 2025 in the Dallas-Fort Worth area, defined in §115.10 of this title (relating to Definitions), except Wise County;(B) 25 tons of VOC per calendar year in the Houston-Galveston-Brazoria area, as defined in §115.10 of this title; (C) 100 tons of VOC per calendar year before and 25 tons of VOC per calendar year on and after November 7, 2025 in Wise County; or (D) 100 tons of VOC per calendar year on and after January 1, 2025 in the Bexar County area.(10) Non-heatset--Any operation where the printing inks are set without the use of heat. For the purposes of this division, ultraviolet-cured and electron beam-cured inks are considered non-heatset. (11) Offset lithography--A printing process that transfers the ink film from the lithographic plate to an intermediary surface (blanket) that, in turn, transfers the ink film to the substrate.(12) Volatile organic compound (VOC) composite partial pressure--The sum of the partial pressures of the compounds that meet the definition of VOC in §101.1 of this title (relating to Definitions). The VOC composite partial pressure is calculated as follows.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §115.440 adopted to be effective March 21, 1999, 24 TexReg 1777; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective April 1, 2010, 35 TexReg 2579; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.441"><num value="115.441">§115.441</num><heading>Exemptions</heading><content>(a) In the Bexar County, Dallas-Fort Worth, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), the owner or operator of all offset lithographic printing lines located on a property with combined emissions of volatile organic compounds less than 3.0 tons per calendar year when uncontrolled, is exempt from the requirements in this division except as specified in §115.446 of this title (relating to Monitoring and Recordkeeping Requirements).(b) In the Bexar County, Dallas-Fort Worth and Houston-Galveston-Brazoria areas, the owner or operator of a minor printing source, as defined in §115.440 of this title (relating to Applicability and Definitions) and in Wise County, the owner or operator of a minor printing source or a major printing source, as defined in §115.440 of this title:(1) may exempt up to 110 gallons of cleaning solution per calendar year from the content limits in §115.442(c)(1) of this title (relating to Control Requirements);(2) may exempt any press with a total fountain solution reservoir less than 1.0 gallons from the fountain solution content limits in §115.442(c)(2) - (4) of this title; and(3) may exempt any sheet-fed press with a maximum sheet size of 11.0 inches by 17.0 inches or less from the fountain solution content limits in §115.442(c)(2) of this title.</content><note type="source"><p>Source Note: The provisions of this §115.441 adopted to be effective April 1, 2010, 35 TexReg 2579; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.442"><num value="115.442">§115.442</num><heading>Control Requirements</heading><content>(a) In the El Paso area as defined in §115.10 of this title (relating to Definitions), the following control requirements apply.(1) The owner or operator of an offset lithographic printing line that uses solvent-containing ink shall limit emissions of volatile organic compounds (VOC) as follows.(A) The owner or operator of a heatset web offset lithographic printing press that uses alcohol in the fountain solution shall maintain total fountain solution alcohol to 5.0% or less (by volume). Alternatively, a standard of 10.0% or less (by volume) alcohol may be used if the fountain solution containing alcohol is refrigerated to less than 60 degrees Fahrenheit (15.5 degrees Celsius).(B) The owner or operator of a non-heatset web offset lithographic printing press that prints newspaper and that uses alcohol in the fountain solution shall eliminate the use of alcohol in the fountain solution. Nonalcohol additives or alcohol substitutes can be used to accomplish the total elimination of alcohol use.(C) The owner or operator of a non-heatset web offset lithographic printing press that does not print newspaper and that uses alcohol in the fountain solution shall maintain the use of alcohol at 5.0% or less (by volume). Alternatively, a standard of 10.0% or less (by volume) alcohol may be used if the fountain solution is refrigerated to less than 60 degrees Fahrenheit (15.5 degrees Celsius).(D) The owner or operator of a sheet-fed offset lithographic printing press shall maintain the use of alcohol at 10.0% or less (by volume). Alternatively, a standard of 12.0% or less (by volume) alcohol may be used if the fountain solution is refrigerated to less than 60 degrees Fahrenheit (15.5 degrees Celsius).(E) The owner or operator of any type of offset lithographic printing press shall be considered in compliance with the fountain solution limitations of this paragraph if the only VOC in the fountain solution are nonalcohol additives or alcohol substitutes, so that the concentration of VOC in the fountain solution is 3.0% or less (by weight). The fountain solution must not contain any isopropyl alcohol.(F) The owner or operator of an offset lithographic printing press shall reduce VOC emissions from cleaning solutions by one of the following methods:(i) using cleaning solutions with a VOC content of 50% or less (by volume, as used);(ii) using cleaning solutions with a VOC content of 70% or less (by volume, as used) and incorporating a towel handling program that ensures that all waste ink, solvents, and cleanup rags are stored in closed containers until removed from the site by a licensed disposal/cleaning service; or(iii) using cleaning solutions with a VOC composite partial vapor pressure less than or equal to 10.0 millimeters of mercury at 68 degrees Fahrenheit (20 degrees Celsius).(2) The owner or operator of a heatset offset lithographic printing press shall operate a control device to reduce VOC emissions from the press dryer exhaust vent by 90% by weight or maintain a maximum dryer exhaust outlet VOC concentration of 20 parts per million by volume (ppmv), whichever is less stringent when the press is in operation. The dryer air pressure must be lower than the pressroom air pressure at all times when the press is operating to ensure the dryer has a capture efficiency of 100%.(b) In the Bexar County, Dallas-Fort Worth and Houston-Galveston-Brazoria areas, the following control requirements apply to the owner or operator of a major printing source, as defined in §115.440 of this title (relating to Applicability and Definitions), in accordance with the appropriate compliance date specified in §115.449 of this title (relating to Compliance Schedules).(1) The owner or operator of an offset lithographic printing press shall limit the VOC content of the cleaning solution, as applied, to:(A) 50.0% VOC or less by volume;(B) 70.0% VOC or less by volume if the facility has a towel handling program in place that ensures all waste ink, solvents, and cleanup rags are stored in closed containers until removed from the site by a licensed disposal or cleaning service; or(C) a VOC composite partial vapor pressure less than or equal to 10.0 millimeters of mercury at 68 degrees Fahrenheit (20 degrees Celsius) if the facility has a towel handling program in place that ensures all waste ink, solvents, and cleanup rags are stored in closed containers until removed from the site by a licensed disposal or cleaning service.(2) The owner or operator of a sheet-fed offset lithographic printing press shall limit the VOC content of the fountain solution, as applied, to:(A) 5.0% alcohol or less by weight;(B) 8.5% alcohol or less by weight if the fountain solution is refrigerated below 60 degrees Fahrenheit (15.5 degrees Celsius); or(C) 3.0% alcohol substitutes or less by weight and no alcohol in the fountain solution.(3) The owner or operator of a non-heatset web offset lithographic printing press shall limit the VOC content of the fountain solution, as applied, to 3.0% alcohol substitutes or less by weight and no alcohol in the fountain solution.(4) The owner or operator of a heatset web offset lithographic printing press shall limit the VOC content of the fountain solution, as applied, to:(A) 1.6% alcohol or less by weight;(B) 3.0% alcohol or less by weight if the fountain solution is refrigerated below 60 degrees Fahrenheit (15.5 degrees Celsius); or(C) 3.0% alcohol substitutes or less by weight and no alcohol in the fountain solution.(5) The owner or operator of a heatset offset lithographic printing press shall operate a control device to reduce VOC emissions from the press dryer exhaust vent by at least 90% by weight or maintain a maximum dryer exhaust outlet VOC concentration of 20 ppmv or less, whichever is less stringent when the press is in operation. The dryer air pressure must be lower than the pressroom air pressure at all times when the press is operating to ensure the dryer has a capture efficiency of 100%.(c) In the Bexar County, Dallas-Fort Worth and Houston-Galveston-Brazoria areas, the following control requirements apply to the owner or operator of a minor printing source, as defined in §115.440 of this title, in accordance with the appropriate compliance date specified in §115.449.(1) The owner or operator of an offset lithographic printing press shall limit the VOC content of the cleaning solution, as applied, to:(A) 50.0% VOC or less by volume;(B) 70.0% VOC or less by volume if the facility has a towel handling program in place that ensures all waste ink, solvents, and cleanup rags are stored in closed containers until removed from the site by a licensed disposal or cleaning service; or(C) a VOC composite partial vapor pressure less than or equal to 10.0 millimeters of mercury at 68 degrees Fahrenheit (20 degrees Celsius) if the facility has a towel handling program in place that ensures all waste ink, solvents, and cleanup rags are stored in closed containers until removed from the site by a licensed disposal or cleaning service.(2) The owner or operator of a sheet-fed offset lithographic printing press shall limit the VOC content of the fountain solution, as applied, to:(A) 5.0% alcohol or less by weight;(B) 8.5% alcohol or less by weight if the fountain solution is refrigerated below 60 degrees Fahrenheit (15.5 degrees Celsius); or(C) 5.0% alcohol substitutes or less by weight and no alcohol in the fountain solution.(3) The owner or operator of a non-heatset web offset lithographic printing press shall limit the VOC content of the fountain solution, as applied, to 5.0% alcohol substitutes or less by weight and no alcohol in the fountain solution.(4) The owner or operator of a heatset web offset lithographic printing press shall limit the VOC content of the fountain solution, as applied, to:(A) 1.6% alcohol or less by weight;(B) 3.0% alcohol or less by weight if the fountain solution is refrigerated below 60 degrees Fahrenheit (15.5 degrees Celsius); or(C) 5.0% alcohol substitutes or less by weight and no alcohol in the fountain solution.</content><note type="source"><p>Source Note: The provisions of this §115.442 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective April 1, 2010, 35 TexReg 2579; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.443"><num value="115.443">§115.443</num><heading>Alternate Control Requirements</heading><content>In the Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division (relating to Offset Lithographic Printing) may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.</content><note type="source"><p>Source Note: The provisions of this §115.443 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective March 21, 1999, 24 TexReg 1777; amended to be effective April 1, 2010, 35 TexReg 2579; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.445"><num value="115.445">§115.445</num><heading>Approved Test Methods</heading><content>In the Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions) compliance with the requirements in this division (relating to Offset Lithographic Printing) must be determined by applying the following test methods, as appropriate:(1) Test Methods 1-4 (40 Code of Federal Regulations (CFR) Part 60, Appendix A) for determining flow rates;(2) Test Method 24 (40 CFR Part 60, Appendix A) for determining the volatile organic compound content and density of printing inks and related coatings;(3) Test Method 25 (40 CFR Part 60, Appendix A) for determining total gaseous nonmethane organic emissions as carbon with the modification that the probe and filter should be heated to the gas stream temperature, typically closer to 350 degrees Fahrenheit (177 degrees Celsius) to prevent condensation;(4) Test Methods 25A or 25B (40 CFR Part 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis;(5) the United States Environmental Protection Agency guidelines series document "Procedures for Certifying Quantity of Volatile Organic Compounds Emitted by Paint, Ink, and Other Coatings" (EPA-450/3-84-019, effective December 1984);(6) additional performance test procedures described in 40 CFR §60.444 (effective October 18, 1983);(7) minor modifications to these test methods if approved by the executive director; and(8) test methods other than those specified in this section if validated by 40 CFR Part 63, Appendix A, Test Method 301 (effective December 29, 1992) and approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.445 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective April 1, 2010, 35 TexReg 2579; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.446"><num value="115.446">§115.446</num><heading>Monitoring and Recordkeeping Requirements</heading><content>(a) In the El Paso area as defined in §115.10 of this title (relating to Definitions), the following monitoring and recordkeeping requirements apply.(1) The owner or operator of a heatset offset lithographic printing press shall install, calibrate, maintain, and operate a temperature monitoring device, according to the manufacturer's instructions, at the outlet of the control device. The temperature monitoring device must be equipped with a continuous recorder and must have an accuracy of ±0.5 degrees Fahrenheit, or alternatively ±1.0% of the temperature being monitored.(2) The owner or operator of any offset lithographic printing press shall install and maintain monitors to continuously measure and record operational parameters of any emission control device installed to meet applicable control requirements on a regular basis. Such records must be sufficient to demonstrate proper functioning of those devices to design specifications, including:(A) the exhaust gas temperature of direct-flame incinerators or the gas temperature immediately upstream and downstream of any catalyst bed;(B) the total amount of volatile organic compounds (VOC) recovered by a carbon adsorption or other solvent recovery system during a calendar month; and(C) the exhaust gas VOC concentration of any carbon adsorption system, as defined in §115.10 of this title, to determine if breakthrough has occurred.(3) The dryer pressure must be maintained lower than the press room air pressure such that air flows into the dryer at all times when the offset lithographic printing press is operating. A 100% emissions capture efficiency for the dryer must be demonstrated using an air flow direction measuring device.(4) The owner or operator of any offset lithographic printing press shall monitor fountain solution alcohol concentration with a refractometer or a hydrometer that is corrected for temperature at least once per eight-hour shift or once per batch, whichever is longer. The refractometer or hydrometer must have a visual, analog, or digital readout with an accuracy of 0.5% VOC. A standard solution must be used to calibrate the refractometer for the type of alcohol used in the fountain. The VOC content of the fountain solution may be monitored with a conductivity meter if it is determined that a refractometer or hydrometer cannot be used for the type of VOC in the fountain solution. The conductivity meter reading for the fountain solution must be referenced to the conductivity of the incoming water.(5) The owner or operator of any offset lithographic printing press using refrigeration equipment on the fountain solution in order to comply with §115.442(a)(1)(A), (C), or (D) of this title (relating to Control Requirements) shall monitor the temperature of the fountain solution reservoir at least once per hour. Alternatively, the owner or operator of any offset lithographic printing press using refrigeration equipment on the fountain solution shall install, maintain, and continuously operate a temperature monitor of the fountain solution reservoir. The temperature monitor must be attached to a continuous recording device such as a strip chart, recorder, or computer.(6) For any offset lithographic printing press with automatic cleaning equipment, flow meters are required to monitor water and cleaning solution flow rates. The flow meters must be calibrated so that the VOC content of the mixed solution complies with the requirements of §115.442(a)(1) of this title.(7) The owner or operator of any offset lithographic printing press shall maintain the results of any testing conducted at an affected facility in accordance with the provisions specified in §115.445 of this title (relating to Approved Test Methods).(8) The owner or operator of any offset lithographic printing press shall maintain all records at the affected facility for at least two years and make such records available upon request to authorized representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution agency with jurisdiction.(b) In the Bexar County, Dallas-Fort Worth and Houston-Galveston-Brazoria areas, the following monitoring and recordkeeping requirements apply in accordance with the appropriate compliance date specified in §115.449 of this title (relating to Compliance Schedules).(1) The owner or operator of an offset lithographic printing press claiming an exemption in §115.441 of this title (relating to Exemptions) shall maintain records sufficient to demonstrate continuous compliance with the applicable exemption criteria. For example, maintaining records of ink, cleaning solvent, and fountain solution usage may be sufficient to demonstrate compliance with the exemption provided in §115.441(a) of this title for sources located on a property with combined VOC emissions less than 3.0 tons per year when uncontrolled.(2) The owner or operator of an offset lithographic printing press shall use one of the following options to demonstrate compliance with the cleaning solution content limits in §115.442(b)(1) or (c)(1) of this title.(A) Flow meters must be used to monitor the water and cleaning solution flow rates on a press with automatic cleaning equipment. The flow meters must be installed, maintained, and operated according to the manufacturer's instructions. The flow meters must be calibrated so that the VOC concentration of the cleaning solution complies with the requirements of §115.442(b)(1) or (c)(1) of this title. Records must be sufficient to demonstrate continuous compliance with the cleaning solution content limits in §115.442(b)(1) or (c)(1) of this title.(B) The VOC concentration of each batch of cleaning solution must be determined using analytical data derived from the material safety data sheet (MSDS) or equivalent information from the supplier that was derived using the approved test methods in §115.445 of this title. The concentration of all VOC used to prepare the batch and, if diluted prior to use, the proportions that each of these materials is used must be recorded for each batch of cleaning solution. Records must be sufficient to demonstrate continuous compliance with the cleaning solution content limits in §115.442(b)(1) or (c)(1) of this title.(3) The owner or operator of an offset lithographic printing press shall use one of the following options to demonstrate compliance with the fountain solution content limits in §115.442(b)(2) - (4) or (c)(2) - (4) of this title.(A) The VOC concentration of each batch of fountain solution must be monitored using a refractometer or a hydrometer that is corrected for temperature. The refractometer or hydrometer must have a visual, analog, or digital readout with an accuracy of 0.5% VOC. A standard solution must be used to calibrate the refractometer for the type of alcohol used in the fountain solution. The VOC content of the fountain solution may be monitored with a conductivity meter if it is determined that a refractometer or hydrometer cannot be used for the type of VOC in the fountain solution. The conductivity meter reading for the fountain solution must be referenced to the conductivity of the incoming water. Records must be sufficient to demonstrate continuous compliance with the fountain solution content limits in §115.442(b)(2) - (4) or (c)(2) - (4) of this title.(B) The VOC concentration of each batch fountain solution must be determined using analytical data from the MSDS or equivalent information from the supplier that was derived using the approved test methods in §115.445 of this title. The concentration of all alcohols or alcohol substitutes used to prepare the batch and, if diluted prior to use, the proportions that each of these materials is used must be recorded for each batch of fountain solution. Records must be sufficient to demonstrate continuous compliance with the fountain solution content limits in §115.442(b)(2) - (4) or (c)(2) - (4) of this title.(4) The owner or operator of an offset lithographic printing press using refrigeration equipment on the fountain solution reservoir shall monitor and record the fountain solution temperature at least once per hour. Temperature monitoring devices must be installed, maintained, and operated according to the manufacturer's specifications. Records must be sufficient to demonstrate continuous compliance with the fountain solution content limits in §115.442(b)(2) and (4) or (c)(2) and (4) of this title.(5) The owner or operator of a heatset web offset lithographic printing press shall comply with the following monitoring and recordkeeping requirements to demonstrate continuous compliance with the control requirements in §115.442(b)(5) of this title.(A) Operational parameters of any emission control device installed to comply with the requirements in §115.442(b)(5) of this title must be continuously measured and recorded. Monitors must be installed, calibrated, maintained, and operated according to the manufacturer's instructions. Temperature monitors must be equipped with a continuous recorder and have an accuracy of ±0.5 degrees Fahrenheit or ±1.0% of the temperature being monitored, whichever is less stringent. Measuring and recording the operational parameters of the control device at least once every 15 minutes is sufficient to demonstrate compliance with this subparagraph. Records must be sufficient to demonstrate proper functioning of the device to design specifications and must include:(i) the exhaust gas temperature of direct-flame incinerators and/or the gas temperature immediately upstream and downstream of any catalyst bed;(ii) the total amount of VOC recovered by a carbon adsorption system or other solvent recovery system per calendar month; and(iii) the exhaust gas VOC concentration of any carbon adsorption system to determine if breakthrough has occurred.(B) An air flow direction measuring device must be used to demonstrate the dryer meets the 100% capture efficiency required in §115.442(b)(5) of this title.(6) The owner or operator of an offset lithographic printing press shall maintain the results of any tests conducted using the approved test methods in §115.445 of this title.(7) The owner or operator of an offset lithographic printing press shall maintain all records for at least two years and make such records available upon request to authorized representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution agency with jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §115.446 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective March 21, 1999, 24 TexReg 1777; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective April 1, 2010, 35 TexReg 2579; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.449"><num value="115.449">§115.449</num><heading>Compliance Schedules</heading><content>(a) In the El Paso area, the owner or operator of all offset lithographic printing presses must be in compliance with §§115.442, 115.443, 115.445, and 115.446 of this title (relating to Control Requirements; Alternate Control Requirements; Approved Test Methods; and Monitoring and Recordkeeping Requirements) as soon as practicable, but no later than November 15, 1996.(b) In Collin, Dallas, Denton, and Tarrant Counties, the owner or operator of all offset lithographic printing presses on a property that, when uncontrolled, emit a combined weight of volatile organic compounds (VOC) equal to or greater than 50 tons per calendar year, must be in compliance with §§115.442(a), 115.443, 115.445, and 115.446(a) of this title as soon as practicable, but no later than December 31, 2000.(c) In Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties, the owner or operator of all offset lithographic printing presses on a property that, when uncontrolled, emit a combined weight of VOC equal to or greater than 25 tons per calendar year, must be in compliance with §§115.442(a), 115.443, 115.445, and 115.446(a) of this title as soon as practicable, but no later than December 31, 2002.(d) In Ellis, Johnson, Kaufman, Parker, and Rockwall Counties, the owner or operator of all offset lithographic printing presses on a property that, when uncontrolled, emit a combined weight of VOC equal to or greater than 50 tons per calendar year, shall comply with §§115.442(a), 115.443, 115.445, and 115.446(a) of this title as soon as practicable, but no later than March 1, 2009.(e) The owner or operator of a major printing source, as defined in §115.440 of this title (relating to Applicability and Definitions), in Brazoria, Chambers, Collin, Dallas, Denton, Ellis, Fort Bend, Galveston, Harris, Johnson, Kaufman, Liberty, Montgomery, Parker, Rockwall, Tarrant, and Waller Counties, as defined in §115.10 of this title (relating to Definitions), shall comply with the requirements in this division no later than March 1, 2011, except as specified in subsections (b), (c), and (d) of this section.(f) The owner or operator of a minor printing source, as defined in §115.440 of this title, in the Brazoria, Chambers, Collin, Dallas, Denton, Ellis, Fort Bend, Galveston, Harris, Johnson, Kaufman, Liberty, Montgomery, Parker, Rockwall, Tarrant, and Waller Counties, shall comply with the requirements in this division no later than March 1, 2012.(g) The owner or operator of a major or minor printing source, as defined in §115.440 of this title, in Wise County, shall comply with the requirements in this division as soon as practicable, but no later than January 1, 2017.(h) The owner or operator of a major or minor printing source, as defined in §115.440 of this title, in the Bexar County area subject to the requirements of this division shall comply with the requirements of this division no later than January 1, 2025.(i) The owner or operator of an offset lithographic printing line in Brazoria, Bexar, Chambers, Collin, Dallas, Denton, Ellis, Fort Bend, Galveston, Harris, Johnson, Kaufman, Liberty, Montgomery, Parker, Rockwall, Tarrant, Waller, and Wise Counties that becomes subject to this division on or after the date specified in subsections (e) - (h) of this section, shall comply with the requirements in this division no later than 60 days after becoming subject.</content><note type="source"><p>Source Note: The provisions of this §115.449 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective March 21, 1999, 24 TexReg 1777; amended to be effective January 18, 2001, 26 TexReg 493; amended to be effective December 7, 2006, 31 TexReg 9840; amended to be effective April 1, 2010, 35 TexReg 2579; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.450"><num value="115.450">§115.450</num><heading>Applicability and Definitions</heading><content>(a) Applicability. In the Bexar County, Dallas-Fort Worth and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), the requirements in this division apply to the following surface coating processes, except as specified in paragraphs (6) through (8) of this subsection:(1) large appliance surface coating;(2) metal furniture surface coating;(3) miscellaneous metal parts and products surface coating, miscellaneous plastic parts and products surface coating, pleasure craft surface coating, and automotive/transportation and business machine plastic parts surface coating at the original equipment manufacturer and off-site job shops that coat new parts and products or that re-coat used parts and products;(4) motor vehicle materials applied to miscellaneous metal and plastic parts specified in paragraph (3) of this subsection, at the original equipment manufacturer and off-site job shops that coat new metal and plastic parts or that re-coat used parts and products; (5) paper, film, and foil surface coating lines with the potential to emit from all coatings greater than or equal to 25 tons per year of volatile organic compounds (VOC) when uncontrolled; (6) in the Bexar County and Dallas-Fort Worth areas, automobile and light-duty truck assembly surface coating processes conducted by the original equipment manufacturer and operators that conduct automobile and light-duty truck surface coating processes under contract with the original equipment manufacturer; (7) as of the compliance date specified in §115.459(e) or (g) of this title (relating to Compliance Schedules), industrial maintenance coatings in the Dallas-Fort Worth area and/or the Houston-Galveston-Brazoria area if the commission has published notice for the applicable area in the Texas Register, as provided in §115.459(e) or (g) of this title, to require compliance with the applicable contingency measure control requirements of §115.453(f) or (g) of this title (relating to Control Requirements); and(8) as of the compliance date specified in §115.459(f) or (h) of this title, traffic marking coatings in the Dallas-Fort Worth area and/or the Houston-Galveston-Brazoria area if the commission has published notice for the applicable area in the Texas Register, as provided in §115.459(f) or (h) of this title, to require compliance with the applicable contingency measure control requirements of §115.453(h) or (i) of this title.(b) General definitions. Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382) or in §§3.2, 101.1, or 115.10 of this title (relating to Definitions), the terms in this division have the meanings commonly used in the field of air pollution control. In addition, the following meanings apply in this division unless the context clearly indicates otherwise.(1) Aerosol coating (spray paint)--A hand-held, pressurized, non-refillable container that expels an adhesive or a coating in a finely divided spray when a valve on the container is depressed.(2) Air-dried coating--A coating that is cured at a temperature below 194 degrees Fahrenheit (90 degrees Celsius). These coatings may also be referred to as low-bake coatings.(3) Baked Coating--A coating that is cured at a temperature at or above 194 degrees Fahrenheit (90 degrees Celsius). These coatings may also be referred to as high-bake coatings.(4) Coating application system--Devices or equipment designed for the purpose of applying a coating material to a surface. The devices may include, but are not be limited to, brushes, sprayers, flow coaters, dip tanks, rollers, knife coaters, and extrusion coaters.(5) Coating line--An operation consisting of a series of one or more coating application systems and associated flash-off area(s), drying area(s), and oven(s) wherein a surface coating is applied, dried, or cured. The coating line ends at the point the coating is dried or cured, or prior to any subsequent application of a different coating.(6) Coating solids (or solids)--The part of a coating that remains on the substrate after the coating is dried or cured.(7) Daily weighted average--The total weight of volatile organic compounds (VOC) emissions from all coatings subject to the same VOC limit in §115.453 of this title (relating to Control Requirements), divided by the total volume or weight of those coatings (minus water and exempt solvent), where applicable, or divided by the total volume or weight of solids, delivered to the application system on each coating line each day. Coatings subject to different VOC content limits in §115.453 of this title may not be combined for purposes of calculating the daily weighted average.(8) Multi-component coating--A coating that requires the addition of a separate reactive resin, commonly known as a catalyst or hardener, before application to form an acceptable dry film. These coatings may also be referred to as two-component coatings.(9) Normally closed container--A container that is closed unless an operator is actively engaged in activities such as adding or removing material.(10) One-component coating--A coating that is ready for application as it comes out of its container to form an acceptable dry film. A thinner, necessary to reduce the viscosity, is not considered a component.(11) Pounds of volatile organic compounds (VOC) per gallon of coating (minus water and exempt solvent)--The basis for content limits for surface coating processes that can be calculated by the following equation:Attached Graphic(12) Pounds of volatile organic compounds (VOC) per gallon of solids--The basis for emission limits for surface coating processes that can be calculated by the following equation:Attached Graphic(13) Spray gun--A device that atomizes a coating or other material and projects the particulates or other material onto a substrate.(14) Surface coating processes--Operations that use a coating application system.(c) Specific surface coating definitions. The following meanings apply in this division unless the context clearly indicates otherwise.(1) Automobile and light-duty truck manufacturing--The following definitions apply to this surface coating category.(A) Adhesive--Any chemical substance that is applied for the purpose of bonding two surfaces together other than by mechanical means.(B) Automobile and light-duty truck adhesive--An adhesive, including glass-bonding adhesive, used in an automobile or light-duty truck assembly surface coating process and applied for the purpose of bonding two vehicle surfaces together without regard to the substrates involved.(C) Automobile and light-duty truck bedliner--A multi-component coating used in an automobile or light-duty truck assembly surface coating process and applied to a cargo bed after the application of topcoat and outside of the topcoat operation to provide additional durability and chip resistance.(D) Automobile and light-duty truck cavity wax--A coating, used in an automobile or light-duty truck assembly surface coating process, applied into the cavities of the vehicle primarily for the purpose of enhancing corrosion protection.(E) Automobile and light-duty truck deadener--A coating used in an automobile or light-duty truck assembly surface coating process and applied to selected vehicle surfaces primarily for the purpose of reducing the sound of road noise in the passenger compartment. (F) Automobile and light-duty truck gasket/gasket sealing material--A fluid used in an automobile or light-duty truck assembly surface coating process and applied to coat a gasket or replace and perform the same function as a gasket. Automobile and light-duty truck gasket/gasket sealing material includes room temperature vulcanization seal material.(G) Automobile and light-duty truck glass-bonding primer--A primer, used in an automobile or light-duty truck assembly surface coating process, applied to windshield or other glass, or to body openings, to prepare the glass or body opening for the application of glass-bonding adhesives or the installation of adhesive-bonded glass. Automobile and light-duty truck glass-bonding primer includes glass-bonding/cleaning primers that perform both functions (cleaning and priming of the windshield or other glass, or body openings) prior to the application of an adhesive or the installation of adhesive-bonded glass.(H) Automobile and light-duty truck lubricating wax/compound--A protective lubricating material used in an automobile or light-duty truck assembly surface coating process and applied to vehicle hubs and hinges.(I) Automobile and light-duty truck sealer--A high viscosity material used in an automobile or light-duty truck assembly surface coating process and generally, but not always, applied in the paint shop after the body has received an electrodeposition primer coating and before the application of subsequent coatings (e.g., primer-surfacer). The primary purpose of automobile and light-duty truck sealer is to fill body joints completely so that there is no intrusion of water, gases, or corrosive materials into the passenger area of the body compartment. Such materials are also referred to as sealant, sealant primer, or caulk.(J) Automobile and light-duty truck trunk interior coating--A coating used in an automobile or light-duty truck assembly surface coating process outside of the primer-surfacer and topcoat operations and applied to the trunk interior to provide chip protection.(K) Automobile and light-duty truck underbody coating--A coating used in an automobile or light-duty truck assembly surface coating process and applied to the undercarriage or firewall to prevent corrosion or provide chip protection.(L) Automobile and light-duty truck weather strip adhesive--An adhesive used in an automobile or light-duty truck assembly surface coating process and applied to weather-stripping materials for the purpose of bonding the weather-stripping material to the surface of the vehicle.(M) Automobile assembly surface coating process--The assembly-line coating of new passenger cars, or passenger car derivatives, capable of seating 12 or fewer passengers.(N) Electrodeposition primer--A process of applying a protective, corrosion-resistant waterborne primer on exterior and interior surfaces that provides thorough coverage of recessed areas. Electrodeposition primer is a dip-coating method that uses an electrical field to apply or deposit the conductive coating onto the part; the object being painted acts as an electrode that is oppositely charged from the particles of paint in the dip tank. Electrodeposition primer is also referred to as E-Coat, Uni-Prime, and ELPO Primer.(O) Final repair--The operation(s) performed and coating(s) applied to completely assembled motor vehicles or to parts that are not yet on a completely assembled vehicle to correct damage or imperfections in the coating. The curing of the coatings applied in these operations is accomplished at a lower temperature than that used for curing primer-surfacer and topcoat. This lower temperature cure avoids the need to send parts that are not yet on a completely assembled vehicle through the same type of curing process used for primer-surfacer and topcoat and is necessary to protect heat-sensitive components on completely assembled vehicles.(P) In-line repair--The operation(s) performed and coating(s) applied to correct damage or imperfections in the topcoat on parts that are not yet on a completely assembled vehicle. The curing of the coatings applied in these operations is accomplished at essentially the same temperature as that used for curing the previously applied topcoat. In-line repair is also referred to as high-bake repair or high-bake reprocess. In-line repair is considered part of the topcoat operation.(Q) Light-duty truck assembly surface coating process--The assembly-line coating of new motor vehicles rated at 8,500 pounds gross vehicle weight or less and designed primarily for the transportation of property, or derivatives such as pickups, vans, and window vans.(R) Primer-surfacer--An intermediate protective coating applied over the electrodeposition primer and under the topcoat. Primer-surfacer provides adhesion, protection, and appearance properties to the total finish. Primer-surfacer is also referred to as guide coat or surfacer. Primer-surfacer operations may include other coatings (e.g., anti-chip, lower-body anti-chip, chip-resistant edge primer, spot primer, blackout, deadener, interior color, basecoat replacement coating, etc.) that are applied in the same spray booth(s).(S) Topcoat--The final coating system applied to provide the final color or a protective finish. The topcoat may be a monocoat color or basecoat/clearcoat system. In-line repair and two-tone are part of topcoat. Topcoat operations may include other coatings (e.g., blackout, interior color, etc.) that are applied in the same spray booth(s).(T) Solids turnover ratio (RT')--The ratio of total volume of coating solids that is added to the electrodeposition primer system (EDP) in a calendar month divided by the total volume design capacity of the EDP system.(2) Automotive/transportation and business machine plastic parts--The following definitions apply to this surface coating category.(A) Adhesion prime--A coating that is applied to a polyolefin part to promote the adhesion of a subsequent coating. An adhesion prime is clearly identified as an adhesion prime or adhesion promoter on its accompanying material safety data sheet.(B) Automotive/transportation plastic parts--Interior and exterior plastic components of automobiles, trucks, tractors, lawnmowers, and other mobile equipment.(C) Black coating--A coating that has a maximum lightness of 23 units and a saturation less than 2.8, where saturation equals the square root of A2 + B2. These criteria are based on Cielab color space, 0/45 geometry. For spherical geometry, specular included, maximum lightness is 33 units.(D) Business machine--A device that uses electronic or mechanical methods to process information, perform calculations, print or copy information, or convert sound into electrical impulses for transmission. This definition includes devices listed in Standard Industrial Classification codes 3572, 3573, 3574, 3579, and 3661 and photocopy machines, a subcategory of Standard Industrial Classification code 3861.(E) Clear coating--A coating that lacks color and opacity or is transparent and that uses the undercoat as a reflectant base or undertone color.(F) Coating of plastic parts of automobiles and trucks--The coating of any plastic part that is or will be assembled with other parts to form an automobile or truck.(G) Coating of business machine plastic parts--The coating of any plastic part that is or will be assembled with other parts to form a business machine.(H) Electrostatic prep coat--A coating that is applied to a plastic part solely to provide conductivity for the subsequent application of a prime, a topcoat, or other coating through the use of electrostatic application methods. An electrostatic prep coat is clearly identified as an electrostatic prep coat on its accompanying material safety data sheet.(I) Flexible coating--A coating that is required to comply with engineering specifications for impact resistance, mandrel bend, or elongation as defined by the original equipment manufacturer.(J) Fog coat--A coating that is applied to a plastic part for the purpose of color matching without masking a molded-in texture. A fog coat may not be applied at a thickness of more than 0.5 mil of coating solids.(K) Gloss reducer--A coating that is applied to a plastic part solely to reduce the shine of the part. A gloss reducer may not be applied at a thickness of more than 0.5 mil of coating solids.(L) Red coating--A coating that meets all of the following criteria:(i) yellow limit: the hue of hostaperm scarlet;(ii) blue limit: the hue of monastral red-violet;(iii) lightness limit for metallics: 35% aluminum flake;(iv) lightness limit for solids: 50% titanium dioxide white;(v) solid reds: hue angle of -11 to 38 degrees and maximum lightness of 23 to 45 units; and(vi) metallic reds: hue angle of -16 to 35 degrees and maximum lightness of 28 to 45 units. These criteria are based on Cielab color space, 0/45 geometry. For spherical geometry, specular included, the upper limit is 49 units. The maximum lightness varies as the hue moves from violet to orange. This is a natural consequence of the strength of the colorants, and real colors show this effect.(M) Resist coat--A coating that is applied to a plastic part before metallic plating to prevent deposits of metal on portions of the plastic part.(N) Stencil coat--A coating that is applied over a stencil to a plastic part at a thickness of 1.0 mil or less of coating solids. Stencil coats are most frequently letters, numbers, or decorative designs.(O) Texture coat--A coating that is applied to a plastic part which, in its finished form, consists of discrete raised spots of the coating.(P) Vacuum-metalizing coatings--Topcoats and basecoats that are used in the vacuum-metalizing process.(3) Industrial maintenance coating--A high performance maintenance coating, including primers, sealers, undercoaters, intermediate coats, and topcoats, that is not applied to items meeting the definition for miscellaneous metal parts and products in §115.450(c)(6)(Q) of this section, and is formulated for application to stationary source substrates, including floors, exposed to one or more of the following extreme environmental conditions.(A) Immersion in water, wastewater, or chemical solutions (aqueous and non-aqueous solutions), or chronic exposures of interior surfaces to moisture condensation; or(B) Acute or chronic exposure to corrosive, caustic, or acidic agents, or to chemicals, chemical fumes, or chemical mixtures or solutions; or(C) Frequent exposure to temperatures above 121°C (250°F); or (D) Frequent heavy abrasion, including mechanical wear and frequent scrubbing with industrial solvents, cleansers, or scouring agents; or(E) Exterior exposure of metal structures and structural components.(4) Large appliance coating--The coating of doors, cases, lids, panels, and interior support parts of residential and commercial washers, dryers, ranges, refrigerators, freezers, water heaters, dishwashers, trash compactors, air conditioners, and other large appliances.(A) Extreme high-gloss coating--A coating which, when tested by the American Society for Testing Material Test Method D523 adopted in 1980, shows a reflectance of 75% or more on a 60 degree meter.(B) Extreme performance coating--A coating used on a metal surface where the coated surface is, in its intended use, subject to:(i) chronic exposure to corrosive, caustic or acidic agents, chemicals, chemical fumes, chemical mixtures, or solutions;(ii) repeated exposure to temperatures in excess of 250 degrees Fahrenheit (121 degrees Celsius);(iii) repeated heavy abrasion, including mechanical wear and repeated scrubbing with industrial grade solvents, cleansers, or scouring agents; or(iv) exposure to extreme environmental conditions, such as continuous outdoor exposure.(C) Heat-resistant coating--A coating that must withstand a temperature of at least 400 degrees Fahrenheit (204 degrees Celsius) during normal use.(D) Metallic coating--A coating that contains more than 0.042 pounds of metal particles per gallon of coating as applied. Metal particles are pieces of a pure elemental metal or a combination of elemental metals.(E) Pretreatment coating--A coating that contains no more than 12% solids by weight and at least 0.50% acid by weight; is used to provide surface etching; and is applied directly to metal surfaces to provide corrosion resistance, adhesion, and ease of stripping. (F) Solar-absorbent coating--A coating that has as its prime purpose the absorption of solar radiation.(5) Metal furniture coating--The coating of metal furniture including, but not limited to, tables, chairs, wastebaskets, beds, desks, lockers, benches, shelves, file cabinets, lamps, and other metal furniture products or the coating of any metal part that will be a part of a nonmetal furniture product.(A) Extreme high-gloss coating--A coating which, when tested by the American Society for Testing Material Test Method D523 adopted in 1980, shows a reflectance of 75% or more on a 60 degree meter.(B) Extreme performance coating--A coating used on a metal surface where the coated surface is, in its intended use, subject to:(i) chronic exposure to corrosive, caustic or acidic agents, chemicals, chemical fumes, chemical mixtures, or solutions;(ii) repeated exposure to temperatures in excess of 250 degrees Fahrenheit (121 degrees Celsius);(iii) repeated heavy abrasion, including mechanical wear and repeated scrubbing with industrial grade solvents, cleansers, or scouring agents; or(iv) exposure to extreme environmental conditions, such as continuous outdoor exposure.(C) Heat-resistant coating--A coating that must withstand a temperature of at least 400 degrees Fahrenheit (204 degrees Celsius) during normal use.(D) Metallic coating--A coating containing more than 5.0 grams of metal particles per liter of coating as applied. Metal particles are pieces of a pure elemental metal or a combination of elemental metals.(E) Pretreatment coating--A coating that contains no more than 12% solids by weight and at least 0.50% acid by weight; is used to provide surface etching; and is applied directly to metal surfaces to provide corrosion resistance, adhesion, and ease of stripping. (F) Solar-absorbent coating--A coating that has as its primary purpose the absorption of solar radiation.(6) Miscellaneous metal and plastic parts--The following definitions apply to this surface coating category.(A) Camouflage coating--A coating used, principally by the military, to conceal equipment from detection.(B) Clear coat--A coating that lacks opacity or is transparent and may or may not have an undercoat that is used as a reflectant base or undertone color.(C) Drum (metal)--Any cylindrical metal shipping container with a capacity equal to or greater than 12 gallons but equal to or less than 110 gallons.(D) Electric-dissipating coating--A coating that rapidly dissipates a high-voltage electric charge.(E) Electric-insulting varnish--A non-convertible-type coating applied to electric motors, components of electric motors, or power transformers, to provide electrical, mechanical, and environmental protection or resistance.(F) EMI/RFI shielding--A coating used on electrical or electronic equipment to provide shielding against electromagnetic interference (EMI), radio frequency interference (RFI), or static discharge.(G) Etching filler--A coating that contains less than 23% solids by weight and at least 0.50% acid by weight and is used instead of applying a pretreatment coating followed by a primer.(H) Extreme high-gloss coating--A coating which, when tested by the American Society for Testing and Materials Test Method D523 adopted in 1980, shows a reflectance of 75% or more on a 60 degree meter.(I) Extreme performance coating--A coating used on a metal or plastic surface where the coated surface is, in its intended use, subject to one of the following conditions. Extreme performance coatings include, but are not limited to, coatings applied to locomotives, railroad cars, farm machinery, marine shipping containers, downhole drilling equipment, and heavy-duty trucks:(i) chronic exposure to corrosive, caustic or acidic agents, chemicals, chemical fumes, chemical mixtures, or solutions;(ii) repeated exposure to temperatures in excess of 250 degrees Fahrenheit (121 degrees Celsius);(iii) repeated heavy abrasion, including mechanical wear and repeated scrubbing with industrial grade solvents, cleansers, or scouring agents; or(iv) exposure to extreme environmental conditions, such as continuous outdoor exposure.(J) Heat-resistant coating--A coating that must withstand a temperature of at least 400 degrees Fahrenheit (204 degrees Celsius) during normal use.(K) High performance architectural coating--A coating used to protect architectural subsections and meets the requirements of the American Architectural Manufacturers Association's publication number AAMA 2604-05 (Voluntary Specification, Performance Requirements and Test Procedures for High Performance Organic Coatings on Aluminum Extrusions and Panels) or 2605-05 (Voluntary Specification, Performance Requirements and Test Procedures for Superior Performing Organic Coatings on Aluminum Extrusions and Panels).(L) High temperature coating--A coating that is certified to withstand a temperature of 1000 degrees Fahrenheit (538 degrees Celsius) for 24 hours.(M) Mask coating--A thin film coating applied through a template to coat a small portion of a substrate.(N) Metallic coating--A coating containing more than 5.0 grams of metal particles per liter of coating as applied. Metal particles are pieces of a pure elemental metal or a combination of elemental metals.(O) Military specification coating--A coating that has a formulation approved by a United States Military Agency for use on military equipment.(P) Mold-seal coating--The initial coating applied to a new mold or a repaired mold to provide a smooth surface that when coated with a mold release coating, prevents products from sticking to the mold.(Q) Miscellaneous metal parts and products--Parts and products considered miscellaneous metal parts and products include:(i) large farm machinery (harvesting, fertilizing, and planting machines, tractors, combines, etc.);(ii) small farm machinery (lawn and garden tractors, lawn mowers, rototillers, etc.);(iii) small appliances (fans, mixers, blenders, crock pots, dehumidifiers, vacuum cleaners, etc.);(iv) commercial machinery (computers and auxiliary equipment, typewriters, calculators, vending machines, etc.);(v) industrial machinery (pumps, compressors, conveyor components, fans, blowers, transformers, etc.);(vi) fabricated metal products (metal-covered doors, frames, etc.); and(vii) any other category of coated metal products, including, but not limited to, those that are included in the Standard Industrial Classification Code major group 33 (primary metal industries), major group 34 (fabricated metal products), major group 35 (nonelectrical machinery), major group 36 (electrical machinery), major group 37 (transportation equipment), major group 38 (miscellaneous instruments), and major group 39 (miscellaneous manufacturing industries). Excluded are those surface coating processes specified in §115.420(c)(1) - (8) and (10) - (16) of this title (relating to Surface Coating Definitions) and paragraphs (1) - (4) and (6) - (8) of this subsection.(R) Miscellaneous plastic parts and products--Parts and products considered miscellaneous plastic parts and products include, but are not limited to:(i) molded plastic parts;(ii) small and large farm machinery;(iii) commercial and industrial machinery and equipment;(iv) interior or exterior automotive parts;(v) construction equipment;(vi) motor vehicle accessories;(vii) bicycles and sporting goods;(viii) toys;(ix) recreational vehicles;(x) lawn and garden equipment;(xi) laboratory and medical equipment;(xii) electronic equipment; and(xiii) other industrial and household products. Excluded are those surface coating processes specified in §115.420(c)(1) - (16) of this title and paragraphs (1) - (4) and (6) - (8) of this subsection.(S) Multi-colored coating--A coating that exhibits more than one color when applied, is packaged in a single container, and applied in a single coat.(T) Off-site job shop--A non-manufacturer of metal or plastic parts and products that applies coatings to such products at a site under contract with one or more parties that operate under separate ownership and control.(U) Optical coating--A coating applied to an optical lens.(V) Pail (metal)--Any cylindrical metal shipping container with a capacity equal to or greater than 1 gallon but less than 12 gallons and constructed of 29 gauge or heavier material.(W) Pan-backing coating--A coating applied to the surface of pots, pans, or other cooking implements that are exposed directly to a flame or other heating elements.(X) Prefabricated architectural component coating--A coating applied to metal parts and products that are to be used as an architectural structure.(Y) Pretreatment coating--A coating that contains no more than 12% solids by weight and at least 0.50% acid by weight; is used to provide surface etching; and is applied directly to metal surfaces to provide corrosion resistance, adhesion, and ease of stripping. (Z) Repair coating--A coating used to re-coat portions of a previously coated product that has sustained mechanical damage to the coating following normal surface coating processes.(AA) Safety-indicating coating--A coating that changes physical characteristics, such as color, to indicate unsafe conditions.(BB) Shock-free coating--A coating applied to electrical components to protect the user from electric shock. The coating has characteristics of being low-capacitance and high-resistance and having resistance to breaking down under high voltage.(CC) Silicone-release coating--A coating that contains silicone resin and is intended to prevent food from sticking to metal surfaces such as baking pans.(DD) Solar-absorbent coating--A coating that has as its primary purpose the absorption of solar radiation.(EE) Stencil coating--A pigmented coating or ink that is rolled or brushed onto a template or stamp in order to add identifying letters, symbols, or numbers.(FF) Touch-up coating--A coating used to cover minor coating imperfections appearing after the main surface coating process.(GG) Translucent coating--A coating that contains binders and pigment and formulated to form a colored, but not opaque, film.(HH) Vacuum-metalizing coating--The undercoat applied to the substrate on which the metal is deposited or the overcoat applied directly to the metal film. Vacuum metalizing or physical vapor deposition is the process whereby metal is vaporized and deposited on a substrate in a vacuum chamber.(7) Motor vehicle materials--The following definitions apply to this surface coating category.(A) Motor vehicle bedliner--A multi-component coating used in a process that is not an automobile or light-duty truck manufacturing coating process and is applied to a cargo bed after the application of topcoat to provide additional durability and chip resistance.(B) Motor vehicle cavity wax--A coating used in a process that is not an automobile or light-duty truck manufacturing coating process and is applied into the cavities of the vehicle primarily for the purpose of enhancing corrosion protection.(C) Motor vehicle deadener--A coating used in a process that is not an automobile or light-duty truck manufacturing coating process and is applied to selected vehicle surfaces primarily for the purpose of reducing the sound of road noise in the passenger compartment. (D) Motor vehicle gasket/sealing material--A fluid used in a process that is not an automobile or light-duty truck manufacturing coating process and is applied to coat a gasket or replace and perform the same function as a gasket. Automobile and light-duty truck gasket/gasket sealing material includes room temperature vulcanization seal material.(E) Motor vehicle lubricating wax/compound--A protective lubricating material used in a process that is not an automobile or light-duty truck manufacturing coating process and is applied to vehicle hubs and hinges.(F) Motor vehicle sealer--A high viscosity material used in a process that is not an automobile or light-duty truck manufacturing coating process and is generally, but not always, applied in the paint shop after the body has received an electrodeposition primer coating and before the application of subsequent coatings (e.g., primer-surfacer). The primary purpose of motor vehicle sealer is to fill body joints completely so that there is no intrusion of water, gases, or corrosive materials into the passenger area of the body compartment. Such materials are also referred to as sealant, sealant primer, or caulk.(G) Motor vehicle trunk interior coating--A coating used in a process that is not an automobile or light-duty truck manufacturing coating process and is applied to the trunk interior to provide chip protection.(H) Motor vehicle underbody coating--A coating used in a process that is not an automobile or light-duty truck manufacturing coating process and is applied to the undercarriage or firewall to prevent corrosion or provide chip protection.(8) Paper, film, and foil coating--The coating of paper and pressure-sensitive tapes (regardless of substrate and including paper, fabric, and plastic film), related web coating processes on plastic film (including typewriter ribbons, photographic film, and magnetic tape), metal foil (including decorative, gift wrap, and packaging), industrial and decorative laminates, abrasive products (including fabric coated for use in abrasive products), and flexible packaging.(A) Paper, film, and foil coating includes the application of a continuous layer of a coating material across the entire width or any portion of the width of a paper, film, or foil web substrate to:(i) provide a covering, finish, or functional or protective layer to the substrate;(ii) saturate the substrate for lamination; or(iii) provide adhesion between two substrates for lamination. (B) Paper, film, and foil coating excludes coating performed on or in-line with any offset lithographic, screen, letterpress, flexographic, rotogravure, or digital printing press; or size presses and on-machine coaters that function as part of an in-line papermaking system.(9) Pleasure craft--Any marine or fresh-water vessel used by individuals for noncommercial, nonmilitary, and recreational purposes that is less than 65.6 feet in length. A vessel rented exclusively to, or chartered for, individuals for such purposes is considered a pleasure craft.(A) Antifoulant coating--A coating applied to the underwater portion of a pleasure craft to prevent or reduce the attachment of biological organisms, and registered with the United States Environmental Protection Agency as a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (7 United States Code, §136).(B) Antifoulant sealer/tie coating--A coating applied over an antifoulant coating to prevent the release of biocides into the environment or to promote adhesion between an antifoulant coating and a primer or other antifoulants.(C) Extreme high-gloss coating--A coating that achieves at least 90% reflectance on a 60 degree meter when tested by American Society for Testing and Materials Method D523-89.(D) Finish primer-surfacer--A coating applied with a wet film thickness less than 10 mils prior to the application of a topcoat for purposes of providing corrosion resistance, adhesion of subsequent coatings, a moisture barrier, or promotion of a uniform surface necessary for filling in surface imperfections.(E) High-build primer-surfacer--A coating applied with a wet film thickness of 10 mils or more prior to the application of a topcoat for purposes of providing corrosion resistance, adhesion of subsequent coatings, or a moisture barrier, or promoting a uniform surface necessary for filling in surface imperfections.(F) High-gloss coating--A coating that achieves at least 85% reflectance on a 60 degree meter when tested by American Society for Testing and Materials Test Method D523-89.(G) Pleasure craft coating--A marine coating, except unsaturated polyester resin (fiberglass) coatings, applied by brush, spray, roller, or other means to a pleasure craft.(H) Pretreatment wash primer--A coating that contains no more than 25% solids by weight and at least 0.10% acids by weight; used to provide surface etching; and applied directly to fiberglass and metal surfaces to provide corrosion resistance and adhesion of subsequent coatings.(I) Repair coating--A coating used to re-coat portions of a previously coated product that has sustained mechanical damage to the coating following normal surface coating processes.(J) Topcoat--A final coating applied to the interior or exterior of a pleasure craft.(K) Touch-up coating--A coating used to cover minor coating imperfections appearing after the main surface coating process.(10) Traffic marking coating--A coating labeled and formulated for marking and striping streets, highways, or other traffic surfaces including, but not limited to, curbs, berms, driveways, parking lots, sidewalks, and airport runways.</content><note type="source"><p>Source Note: The provisions of this §115.450 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.451"><num value="115.451">§115.451</num><heading>Exemptions</heading><content>(a) The volatile organic compounds (VOC) from coatings and solvents used in surface coating processes and associated cleaning operations not addressed by the surface coating categories in §115.421(3) - (7), (9), (10), and (13) - (16) of this title (relating to Emission Specifications) or §115.453 of this title (relating to Control Requirements) are excluded from the VOC emission calculations for the purposes of paragraphs (1) - (3) of this subsection. For example, architectural coatings applied in the field to stationary structures and their appurtenances, portable buildings, pavements, or curbs at a property would not be included in the calculations, except as specified in paragraphs (4) and (5) of this subsection.(1) All surface coating processes on a property that, when uncontrolled, will emit a combined weight of VOC of less than 3.0 pounds per hour and 15 pounds in any consecutive 24-hour period are exempt from all of the requirements in §115.453 of this title except §115.453(f) - (i) of this title.(2) Surface coating processes on a property that, when uncontrolled, will emit a combined weight of VOC of less than 100 pounds in any consecutive 24-hour period are exempt from §115.453(a) of this title if documentation is provided to and approved by both the executive director and the United States Environmental Protection Agency to demonstrate that necessary coating performance criteria cannot be achieved with coatings that satisfy applicable VOC limits and that control equipment is not technologically or economically feasible.(3) Surface coating processes on a property where total coating and solvent usage does not exceed 150 gallons in any consecutive 12-month period are exempt from the VOC limits in §115.453(a) of this title.(4) As of the applicable compliance date in §115.459(e) or (g) of this title, if the commission has published notice for the Dallas-Fort Worth and/or Houston-Galveston-Brazoria area in the Texas Register, as provided in §115.459(e) or (g) of this title, to require compliance for the applicable area with the industrial maintenance coatings contingency measure control requirements of §115.453(f) or (g) of this title, respectively, the exemptions in paragraphs (1) through (3) of this subsection no longer apply to industrial maintenance coatings. The owner or operator of a site may continue to exclude industrial maintenance coatings from the criteria in paragraphs (1) through (3) of this subsection for the purposes of determining applicability of this division for the purposes of coatings other than industrial maintenance coatings.(5) As of the applicable compliance date in §115.459(f) or (h) of this title, if the commission has published notice for the Dallas-Fort Worth and/or Houston-Galveston-Brazoria area in the Texas Register, as provided in §115.459(f) or (h) of this title, to require compliance for the applicable area with the traffic marking coatings contingency measure control requirements of §115.453(h) or (i) of this title, respectively, the exemptions in paragraphs (1) through (3) of this subsection no longer apply to traffic marking coatings. The owner or operator of a site may continue to exclude traffic marking coatings from the criteria in paragraphs (1) through (3) of this subsection for the purposes of determining applicability of this division for the purposes of coatings other than traffic marking coatings.(b) The following surface coating processes are exempt from the VOC limits for miscellaneous metal and plastic parts coatings in §115.453(a)(1)(C) - (F) of this title and motor vehicle materials in §115.453(a)(2) of this title:(1) large appliance surface coating;(2) metal furniture surface coating;(3) automobile and light-duty truck assembly surface coating; and(4) surface coating processes specified in §115.420(a)(1) - (9) and (11) - (16) of this title (relating to Applicability and Definitions).(c) Paper, film, and foil surface coating processes are exempt from the coating application system requirements in §115.453(c) of this title and the coating use work practice requirements in §115.453(d)(1) of this title.(d) Automobile and light-duty truck assembly surface coating processes are exempt from the coating application system requirements in §115.453(c) of this title and the cleaning-related work practice requirements in §115.453(d)(2) of this title.(e) Automobile and light-duty truck assembly surface coating materials supplied in containers with a net volume of 16 ounces or less, or a net weight of 1.0 pound or less, are exempt from the VOC limits in Table 2 in §115.453(a)(3) of this title.(f) The following miscellaneous metal part and product surface coatings and surface coating processes are exempt from the coating application system requirements in §115.453(c) of this title:(1) touch-up coatings, repair coatings, and textured finishes;(2) stencil coatings;(3) safety-indicating coatings;(4) solid-film lubricants;(5) electric-insulating and thermal-conducting coatings;(6) magnetic data storage disk coatings; and(7) plastic extruded onto metal parts to form a coating.(g) All miscellaneous plastic part airbrush surface coatings and surface coating processes where total coating usage is less than 5.0 gallons per year are exempt from the coating application system requirements in §115.453(c) of this title.(h) The application of extreme high-gloss coatings to pleasure craft is exempt from the coating application system requirements in §115.453(c) of this title.(i) The following miscellaneous plastic parts surface coatings and surface coating processes are exempt from the coating VOC limits in §115.453(a)(1)(D) of this title:(1) touch-up and repair coatings;(2) stencil coatings applied on clear or transparent substrates;(3) clear or translucent coatings;(4) any individual coating type used in volumes less than 50 gallons in any one year, if substitute compliant coatings are not available, provided that the total usage of all such coatings does not exceed 200 gallons per year, per property;(5) reflective coating applied to highway cones;(6) mask coatings that are less than 0.5 mil thick dried and the area coated is less than 25 square inches;(7) electromagnetic interference/radio frequency interference (EMI/RFI) shielding coatings; and(8) heparin-benzalkonium chloride-containing coatings applied to medical devices, if the total usage of all such coatings does not exceed 100 gallons per year, per property.(j) The following automotive/transportation and business machine plastic part surface coatings and surface coating processes are exempt from the VOC limits in §115.453(a)(1)(E) of this title:(1) texture coatings;(2) vacuum-metalizing coatings;(3) gloss reducers;(4) texture topcoats;(5) adhesion primers;(6) electrostatic preparation coatings;(7) resist coatings; and(8) stencil coatings.(k) Powder coatings and ultraviolet curable coatings applied during metal and plastic parts surface coating processes specified in §115.453(a)(1)(C) - (F) and (2) of this title are exempt from the requirements in this division, except as specified in §115.458(b)(5) of this title (relating to Monitoring and Recordkeeping Requirements).(l) Aerosol coatings (spray paint) are exempt from the requirements in this division, except for §115.453(f) - (i) of this title.(m) Coatings applied to test panels and coupons as part of research and development, quality control, or performance testing activities at paint research or manufacturing facilities are exempt from the requirements in this division.(n) Pleasure craft touch-up and repair coatings supplied in containers less than or equal to 1.0 quart, are exempt from the VOC limits in §115.453(a)(1)(F) of this title provided that the total usage of all such coatings does not exceed 50 gallons per calendar year per property.(o) Pleasure craft surface coating processes are exempt from the VOC limits in §115.453(a)(1)(C) and (D) of this title.(p) Adhesives applied to miscellaneous metal and plastic parts listed in §115.453(a)(1)(C) - (F) and (2) of this title that meet a specific adhesive or adhesive primer application process definition in §115.470 of this title (relating to Applicability and Definitions) and are listed in Table 2 of §115.473(a) of this title (relating to Control Requirements) are not subject to the requirements in this division. Contact adhesives are not included in this exemption.</content><note type="source"><p>Source Note: The provisions of this §115.451 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.453"><num value="115.453">§115.453</num><heading>Control Requirements</heading><content>(a) The following control requirements apply to surface coating processes subject to this division. Except as specified in paragraph (3) of this subsection, these limitations are based on the daily weighted average of all coatings, as defined in §101.1 of this title (relating to Definitions), as delivered to the application system. Upon the compliance date specified in §115.459(d) or (e) of this title (relating to Compliance Schedules), the requirements in subsection (f) or (h) of this section apply in the Dallas-Fort Worth area in addition to this subsection, and upon the compliance date specified in §115.459(g) or (h) of this title, the requirements in subsection (g) or (i) of this section apply in the Houston-Galveston-Brazoria area in addition to this subsection.(1) The following limits must be met by applying low-volatile organic compound (VOC) coatings to meet the specified VOC content limits on a pound of VOC per gallon of coating basis (lb VOC/gal coating) (minus water and exempt solvent), or by applying coatings in combination with the operation of a vapor control system, as defined in §115.10 (relating to Definitions), to meet the specified VOC emission limits on a pound of VOC per gallon of solids basis (lb VOC/gal solids). If a coating meets more than one coating type definition, then the coating with the least stringent VOC limit applies.(A) Large appliances. If a coating does not meet a specific coating type definition, then it can be assumed to be a general-use coating and the VOC limit for general coating applies.Attached Graphic(B) Metal furniture. If a coating does not meet a specific coating type definition, then it can be assumed to be a general-use coating and the VOC limit for general coating applies.Attached Graphic(C) Miscellaneous metal parts and products. If a coating does not meet a specific coating type definition, then it can be assumed to be a general-use coating and the VOC limit for general coating applies.Attached Graphic(D) Miscellaneous plastic parts and products. If a coating does not meet a specific coating category definition, then it can be assumed to be a general-use coating and the VOC limit for general coating applies.Attached Graphic(E) Automotive/transportation and business machine plastic parts. For red, yellow, and black automotive/transportation coatings, except touch-up and repair coatings, the VOC limit is determined by multiplying the appropriate limit in Table 1 of this subparagraph by 1.15.Attached Graphic(F) Pleasure craft. If a coating does not meet a specific coating category definition, then it can be assumed to be a general-use coating and the VOC limits for other coatings applies.Attached Graphic(2) The coating VOC limits for motor vehicle materials applied to the metal and plastic parts in paragraph (1)(C) - (F) of this subsection, as delivered to the application system, must be met using low-VOC coatings (minus water and exempt solvent).Attached Graphic(3) The coating VOC limits for automobile and light-duty truck assembly surface coating processes must be met by applying low-VOC coatings.Attached Graphic(A) The owner or operator shall determine compliance with the VOC limits for electrodeposition primer operations on a monthly weighted average in accordance with §115.455(a)(2)(D) of this title (relating to Approved Test Methods and Testing Requirements).(B) As an alternative to the VOC limit in Table 1 of this paragraph for final repair coatings, if an owner or operator does not compile records sufficient to enable determination of the daily weighted average, compliance may be demonstrated each day by meeting a standard of 4.8 lb VOC/gal coating (minus water and exempt solvent) on an occurrence weighted average basis. Compliance with the VOC limits on an occurrence weighted average basis must be determined in accordance with the procedure specified in §115.455(a)(2) of this title.(C) The owner or operator shall determine compliance with the VOC limits in Table 2 of this paragraph in accordance with §115.455(a)(1) or (2)(C) of this title, as appropriate.(4) The coating VOC limits for paper, film, and foil surface coating processes must be met by applying low-VOC coatings to meet the specified VOC content limits on a pound of VOC per pound of coating basis, as delivered to the application system, or by applying coatings in combination with the operation of a vapor control system to meet the specified VOC emission limits on a pound of VOC per pound of solids basis, as delivered to the application system.Attached Graphic(5) An owner or operator applying coatings in combination with the operation of a vapor control system to meet the VOC emission limits in paragraph (1) or (4) of this subsection shall use the following equation to determine the minimum overall control efficiency necessary to demonstrate equivalency. Control device and capture efficiency testing must be performed in accordance with the testing requirements in §115.455 (a)(3) and (4) of this title.Attached Graphic(b) Except for the surface coating process in subsection (a)(2) of this section, the owner or operator of a surface coating process may operate a vapor control system capable of achieving a 90% overall control efficiency as an alternative to subsection (a) of this section. Control device and capture efficiency testing must be performed in accordance with the testing requirements in §115.455(a)(3) and (4) of this title. If the owner or operator complies with the overall control efficiency option under this subsection, then the owner or operator is exempt from the application system requirements of subsection (c) of this section.(c) The owner or operator of any surface coating process subject to this division shall not apply coatings unless one of the following coating application systems is used:(1) electrostatic application;(2) high-volume, low-pressure (HVLP) spray;(3) flow coat;(4) roller coat;(5) dip coat;(6) brush coat or hand-held paint rollers; or(7) for metal and plastic parts surface coating processes specified in §115.450(a)(3) and (4) of this title (relating to Applicability and Definitions), airless spray or air-assisted airless spray; or(8) other coating application system capable of achieving a transfer efficiency equivalent to or better than that achieved by HVLP spray. For the purpose of this requirement, the transfer efficiency of HVLP spray is assumed to be 65%. The owner or operator shall demonstrate that either the application system being used is equivalent to the transfer efficiency of an HVLP spray or that the application system being used has a transfer efficiency of at least 65%.(d) The following work practices apply to the owner or operator of each surface coating process subject to this division.(1) For all coating-related activities including, but not limited to, solvent storage, mixing operations, and handling operations for coatings and coating-related waste materials, the owner or operator shall:(A) store all VOC-containing coatings and coating-related waste materials in closed containers;(B) minimize spills of VOC-containing coatings;(C) convey all coatings in closed containers or pipes;(D) close mixing vessels and storage containers that contain VOC coatings and other materials except when specifically in use;(E) clean up spills immediately; and(F) for automobile and light-duty truck assembly coating processes, minimize VOC emissions from the cleaning of storage, mixing, and conveying equipment.(2) For all cleaning-related activities including, but not limited to, waste storage, mixing, and handling operations for cleaning materials, the owner or operator shall:(A) store all VOC-containing cleaning materials and used shop towels in closed containers;(B) ensure that storage containers used for VOC-containing cleaning materials are kept closed at all times except when depositing or removing these materials;(C) minimize spills of VOC-containing cleaning materials;(D) convey VOC-containing cleaning materials from one location to another in closed containers or pipes;(E) minimize VOC emissions from cleaning of storage, mixing, and conveying equipment;(F) clean up spills immediately; and(G) for metal and plastic parts surface coating processes specified in §115.450(a)(3) - (5) of this title (relating to Applicability and Definitions), minimize VOC emission from the cleaning of application, storage, mixing, and conveying equipment by ensuring that equipment cleaning is performed without atomizing the cleaning solvent and all spent solvent is captured in closed containers.(3) The owner or operator of automobile and light-duty truck assembly surface coating processes shall implement a work practice plan containing procedures to minimize VOC emissions from cleaning activities and purging of coating application equipment. Properties with a work practice plan already in place to comply with requirements specified in 40 Code of Federal Regulations (CFR) §63.3094(b) (as amended through April 20, 2006 (71 FR 20464)), may incorporate procedures for minimizing non-hazardous air pollutant VOC emissions to comply with the work practice plan required by this paragraph.(e) A surface coating process that becomes subject to subsection (a) of this section by exceeding the exemption limits in §115.451 of this title (relating to Exemptions) is subject to the provisions in subsection (a) of this section even if throughput or emissions later fall below exemption limits unless emissions are maintained at or below the controlled emissions level achieved while complying with subsection (a) of this section and one of the following conditions is met.(1) The project that caused throughput or emission rate to fall below the exemption limits in §115.451 of this title must be authorized by a permit, permit amendment, standard permit, or permit by rule required by Chapters 106 or 116 of this title (relating to Permits by Rule; and Control of Air Pollution by Permits for New Construction or Modification, respectively). If a permit by rule is available for the project, the owner or operator shall continue to comply with subsection (a) of this section for 30 days after the filing of documentation of compliance with that permit by rule.(2) If authorization by permit, permit amendment, standard permit, or permit by rule is not required for the project, the owner or operator shall provide the executive director 30 days notice of the project in writing.(f) In the Dallas-Fort Worth area, in accordance with the schedule specified in 115.459(e) of this title, industrial maintenance coatings must meet a VOC limit of 2.1 pounds per gallon (250 grams per liter) of coating (minus water and exempt solvent), which must be met by applying low-VOC coatings.(g) In the Houston-Galveston-Brazoria area, in accordance with the schedule specified in 115.459(g) of this title, industrial maintenance coatings must meet a VOC limit of 2.1 pounds per gallon (250 grams per liter) of coating (minus water and exempt solvent), which must be met by applying low-VOC coatings.(h) In the Dallas-Fort Worth area, in accordance with the schedule specified in §115.459(f) of this title, traffic marking coatings must meet a VOC content limit of 100 grams of VOC per liter of coating (minus water and exempt solvent), which must be met by applying low-VOC coatings.(i) In the Houston-Galveston-Brazoria area, in accordance with the schedule specified in §115.459(h) of this title, traffic marking coatings must meet a VOC content limit of 100 grams of VOC per liter of coating (minus water and exempt solvent), which must be met by applying low-VOC coatings.</content><note type="source"><p>Source Note: The provisions of this §115.453 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective November 14, 2013, 38 TexReg 7956; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.454"><num value="115.454">§115.454</num><heading>Alternate Control Requirements</heading><content>(a) For the owner or operator of a surface coating process subject to this division, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.(b) For any surface coating process at a specific property, the executive director may approve requirements different from those in §115.453(a)(1)(C) of this title (relating to Control Requirements) based upon the executive director's determination that such requirements will result in the lowest emission rate that is technologically and economically reasonable. When the executive director makes such a determination, the executive director shall specify the date or dates by which such different requirements must be met and shall specify any requirements to be met in the interim. If the emissions resulting from such different requirements equal or exceed 25 tons a year for a property, the determinations for that property must be reviewed every five years. Executive director approval does not necessarily constitute satisfaction of all federal requirements nor eliminate the need for approval by the United States Environmental Protection Agency in cases where specified criteria for determining equivalency have not been clearly identified in applicable sections of this chapter.</content><note type="source"><p>Source Note: The provisions of this §115.454 adopted to be effective December 29, 2011, 36 TexReg 8897.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.455"><num value="115.455">§115.455</num><heading>Approved Test Methods and Testing Requirements</heading><content>(a) Approved Test Methods and Testing Requirements. Compliance with the requirements in this division must be determined by applying one or more of the following test methods, as appropriate. As an alternative to the test methods in paragraph (1) of this subsection, the volatile organic compounds (VOC) content of coatings and, if necessary dilution solvent, may be determined by using analytical data from the material safety data sheet. (1) The owner or operator shall demonstrate compliance with the VOC limits in §115.453 of this title (relating to Control Requirements), by applying the following test methods, as appropriate. Where a test method also inadvertently measures compounds that are exempt solvent an owner or operator may exclude the exempt solvent when determining compliance with a VOC limit. The methods include: (A) Method 24 (40 Code of Federal Regulations (CFR) Part 60, Appendix A); (B) American Society for Testing and Materials (ASTM) Test Methods D1186-06.01, D1200-06.01, D3794-06.01, D2832-69, D1644-75, and D3960-81; (C) the United States Environmental Protection Agency (EPA) guidelines series document "Procedures for Certifying Quantity of Volatile Organic Compounds Emitted by Paint, Ink, and Other Coatings," EPA-450/3-84-019, as in effect December, 1984; (D) additional test procedures described in 40 CFR §60.446 (as amended through October 17, 2000 (65 FR 61761)); and (E) minor modifications to these test methods approved by the executive director. (2) The owner or operator shall determine compliance with the VOC limits for automobile and light-duty truck assembly coating processes in §115.453(a)(3) of this title by applying the following test methods in addition to paragraph (1) of this subsection, as appropriate. The methods include: (A) Protocol for Determining the Daily VOC Emission Rate of Automobile and Light-Duty Truck Topcoat Operations (EPA-453/R-08-002); (B) the procedure contained in subparagraph (A) of this paragraph for determining daily compliance with the alternative emission limitation in §115.453(a)(3) of this title for final repair. Calculation of occurrence weighted average for each combination of repair coatings (primer, specific basecoat, clearcoat) must be determined by the following procedure; (i) the relative occurrence weighted usage calculated as follows for each repair coating: Attached Graphic(ii) the occurrence weighted average (Q) in pounds of VOC per gallon of coating (minus water and exempt solvents) as applied, for each potential combination of repair coatings calculated according to this subparagraph; Attached Graphic(C) the procedure contained in 40 CFR Part 63, Subpart PPPP, Appendix A (as amended through April 24, 2007 (72 FR 20237)), for reactive adhesives; and (D) the procedure contained in 40 CFR Part 60, Subpart MM (as amended October 17, 2000 (65 FR 61760)) for determining the monthly weighted average for electrodeposition primer. (3) The owner or operator shall determine compliance with the vapor control system requirements in §115.453 of this title by applying the following test methods, as appropriate: (A) Methods 1 - 4 (40 CFR Part 60, Appendix A) for determining flow rates, as necessary; (B) Method 25 (40 CFR Part 60, Appendix A) for determining total gaseous nonmethane organic emissions as carbon; (C) Method 25A or 25B (40 CFR Part 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis; (D) additional performance test procedures described in 40 CFR §60.444 (as amended through October 18, 1983 (48 FR 48375)); or (E) minor modifications to these test methods approved by the executive director. (4) The owner or operator of a surface coating process subject to §115.453(a)(5) or (b) of this title shall measure the capture efficiency using applicable procedures outlined in 40 CFR §52.741, Subpart O, Appendix B (as amended through October 21, 1996 (61 FR 54559)). These procedures are: Procedure T - Criteria for and Verification of a Permanent or Temporary Total Enclosure; Procedure L - VOC Input; Procedure G.2 - Captured VOC Emissions (Dilution Technique); Procedure F.1 - Fugitive VOC Emissions from Temporary Enclosures; and Procedure F.2 - Fugitive VOC Emissions from Building Enclosures. (A) The following exemptions apply to capture efficiency testing requirements. (i) If a source installs a permanent total enclosure that meets the specifications of Procedure T and that directs all VOC to a control device, then the capture efficiency is assumed to be 100%, and the source is exempted from capture efficiency testing requirements. This does not exempt the source from performance of any control device efficiency testing that may be required. In addition, a source must demonstrate all criteria for a permanent total enclosure are met during testing for control efficiency. (ii) If a source uses a vapor control system designed to collect and recover VOC (e.g., carbon adsorption system), an explicit measurement of capture efficiency is not necessary if the following conditions are met. The overall control of the system can be determined by directly comparing the input liquid VOC to the recovered liquid VOC. The general procedure for use in this situation is given in 40 CFR §60.433 (as amended through October 17, 2000 (65 FR 61761)), with the following additional restrictions. (I) The source must be able to equate solvent usage with solvent recovery on a 24-hour (daily) basis, rather than a 30-day weighted average. This verification must be done within 72 hours following each 24-hour period of the 30-day period. (II) The solvent recovery system (i.e., capture and control system) must be dedicated to a single process line (e.g., one process line venting to a carbon adsorber system); or if the solvent recovery system controls multiple process lines, the source must be able to demonstrate that the overall control (i.e., the total recovered solvent VOC divided by the sum of liquid VOC input to all process lines venting to the control system) meets or exceeds the most stringent standard applicable for any process line venting to the control system. (B) The capture efficiency must be calculated using one of the following protocols referenced. Any affected source must use one of these protocols, unless a suitable alternative protocol is approved by the executive director and the EPA. (i) Gas/gas method using temporary total enclosure (TTE). The EPA specifications to determine whether a temporary enclosure is considered a TTE are given in Procedure T. The capture efficiency equation to be used for this protocol is: Attached Graphic(ii) Liquid/gas method using TTE. The EPA specifications to determine whether a temporary enclosure is considered a TTE are given in Procedure T. The capture efficiency equation to be used for this protocol is: Attached Graphic(iii) Gas/gas method using the building or room enclosure (BE) in which the affected source is located and in which the mass of VOC captured and delivered to a control device and the mass of fugitive VOC that escapes from BE are measured while operating only the affected facility. All fans and blowers in the BE must be operating as they would under normal production. The capture efficiency equation to be used for this protocol is: Attached Graphic(iv) Liquid/gas method using a BE in which the mass of liquid VOC input to process and the mass of fugitive VOC that escapes from BE are measured while operating only the affected facility. All fans and blowers in the building or room must be operated as they would under normal production. The capture efficiency equation to be used for this protocol is: Attached Graphic(C) The operating parameters selected for monitoring of the capture system for compliance with the requirements in §115.458(a) of this title (relating to Monitoring and Recordkeeping Requirements) must be monitored and recorded during the initial capture efficiency test and thereafter during facility operation. The executive director may require a new capture efficiency test if the operating parameter values change significantly from those recorded during the initial capture efficiency test. (5) Test methods other than those specified in paragraphs (1) - (4) of this subsection may be used if approved by the executive director and validated by Method 301 (40 CFR Part 63, Appendix A). For the purposes of this paragraph, substitute "executive director" each place that Method 301 references "administrator." (b) Inspection requirements. The owner or operator of each surface coating process subject to §115.453 of this title shall provide samples, without charge, upon request by authorized representatives of the executive director, the EPA, or any local air pollution agency with jurisdiction. The representative or inspector requesting the sample will determine the amount of coating needed to test the sample to determine compliance.</content><note type="source"><p>Source Note: The provisions of this §115.455 adopted to be effective December 29, 2011, 36 TexReg 8897.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.458"><num value="115.458">§115.458</num><heading>Monitoring and Recordkeeping Requirements</heading><content>(a) Monitoring requirements. The following monitoring requirements apply to the owner or operator of a surface coating process subject to this division that uses a vapor control system in accordance with §115.453 of this title (relating to Control Requirements). The owner or operator shall install and maintain monitors to accurately measure and record operational parameters of all required control devices to ensure the proper functioning of those devices in accordance with design specifications, including:(1) continuous monitoring of the exhaust gas temperature immediately downstream of direct-flame incinerators or the gas temperature immediately upstream and downstream of any catalyst bed;(2) the total amount of volatile organic compounds (VOC) recovered by carbon adsorption or other solvent recovery systems during a calendar month;(3) continuous monitoring of carbon adsorption bed exhaust; and(4) appropriate operating parameters for capture systems and control devices other than those specified in paragraphs (1) - (3) of this subsection.(b) Recordkeeping requirements. The following recordkeeping requirements apply to the owner or operator of a surface coating process subject to this division.(1) The owner or operator shall maintain records of the testing data or the material safety data sheets (MSDS) in accordance with the requirements in §115.455(a) of this title (relating to Approved Test Methods and Testing Requirements). The MSDS must document relevant information regarding each coating and solvent available for use in the affected surface coating processes including the VOC content, composition, solids content, and solvent density. Records must be sufficient to demonstrate continuous compliance with the applicable VOC limits in §115.453(a) or (f) - (i) of this title.(2) Records must be maintained of the quantity and type of each coating and solvent consumed during the specified averaging period if any of the coatings, as delivered to the coating application system, exceed the applicable VOC limits. Such records must be sufficient to calculate the applicable weighted average of VOC content for all coatings.(3) As an alternative to the recordkeeping requirements of paragraph (2) of this subsection, the owner or operator that qualifies for exemption under §115.451(a)(3) of this title (relating to Exemptions) may maintain records of the total gallons of coating and solvent used in each month and total gallons of coating and solvent used in the previous 12 months.(4) The owner or operator shall maintain, on file, the capture efficiency protocol submitted under §115.455(a)(4) of this title. The owner or operator shall submit all results of the test methods and capture efficiency protocols to the executive director within 60 days of the actual test date. The owner or operator shall maintain records of the capture efficiency operating parameter values on-site for a minimum of one year. If any changes are made to capture or control equipment, the owner or operator is required to notify the executive director in writing within 30 days of these changes and a new capture efficiency or control device destruction or removal efficiency test may be required.(5) The owner or operator claiming an exemption in §115.451 of this title shall maintain records sufficient to demonstrate continuous compliance with the applicable exemption criteria.(6) Records must be maintained of any testing conducted in accordance with the provisions specified in §115.455(a) of this title.(7) Records must be maintained a minimum of two years and be made available upon request to authorized representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution agency with jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §115.458 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.459"><num value="115.459">§115.459</num><heading>Compliance Schedules</heading><content>(a) The owner or operator of a surface coating process in Brazoria, Chambers, Collin, Dallas, Denton, Ellis, Fort Bend, Galveston, Harris, Johnson, Kaufman, Liberty, Montgomery, Parker, Rockwall, Tarrant, and Waller Counties subject to this division shall comply with the requirements of this division, except as specified in §115.453(f) - (i) of this title (relating to Control Requirements), no later than March 1, 2013.(b) The owner or operator of a surface coating process in Wise County shall comply with the requirements in this division, except as specified in §115.453(f) - (i) of this title, no later than January 1, 2017.(c) The owner or operator of a surface coating process in the Bexar County area subject to the requirements of this division shall comply with the requirements in this division no later than January 1, 2025.(d) The owner or operator of a surface coating process that becomes subject to this division on or after the applicable compliance date of this section shall comply with the requirements in this division no later than 60 days after becoming subject.(e) The owner or operator of a surface coating process in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise Counties shall comply with §115.453(f) of this title by no later than 270 days after the commission publishes notification in the Texas Register of its determination that this industrial maintenance coating contingency rule is necessary as a result of EPA publication of a notice in the Federal Register that the specified area failed to attain the applicable National Ambient Air Quality Standard for ozone by the attainment deadline or failure to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act, §172(c)(9).(f) The owner or operator of a surface coating process in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise Counties shall comply with §115.453(h) of this title by no later than 270 days after the commission publishes notification in the Texas Register of its determination that this traffic marking coating contingency rule is necessary as a result of EPA publication of a notice in the Federal Register that the specified area failed to attain the applicable National Ambient Air Quality Standard for ozone by the attainment deadline or failure to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act, §172(c)(9). (g) The owner or operator of a surface coating process in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties shall be in compliance with §115.453(g) of this title by no later than 270 days after the commission publishes notification in the Texas Register of its determination that this industrial maintenance coating contingency rule is necessary as a result of EPA publication of a notice in the Federal Register that the specified area failed to attain the applicable National Ambient Air Quality Standard for ozone by the attainment deadline or failed to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act, §172(c)(9).(h) The owner or operator of a surface coating process in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties shall be in compliance with §115.453(i) of this title by no later than 270 days after the commission publishes notification in the Texas Register of its determination that this traffic marking coating contingency rule is necessary as a result of EPA publication of a notice in the Federal Register that the specified area failed to attain the applicable National Ambient Air Quality Standard for ozone by the attainment deadline or failure to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act, §172(c)(9).</content><note type="source"><p>Source Note: The provisions of this §115.459 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.460"><num value="115.460">§115.460</num><heading>Applicability and Definitions</heading><content>(a) Applicability. Except as specified in §115.461 of this title (relating to Exemptions), the requirements in this division apply to solvent cleaning operations in the Bexar County, Dallas-Fort Worth and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions). Residential cleaning and janitorial cleaning are not considered solvent cleaning operations.(b) Definitions. Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382) or in §§3.2, 101.1, or 115.10 of this title (relating to Definitions), the terms in this division have the meanings commonly used in the field of air pollution control. In addition, the following meanings apply in this division unless the context clearly indicates otherwise indicates otherwise.(1) Aerosol can--A hand-held, non-refillable container that expels pressurized product by means of a propellant-induced force.(2) Application device--A device used to apply adhesive, coating, ink, or polyester resin materials.(3) Application line--A portion of a motor vehicle assembly production line which applies surface and other coatings to motor vehicle bodies, hoods, fenders, cargo boxes, doors, and grill opening panels.(4) Blanket--A synthetic rubber mat used in offset-lithography to transfer or offset an image from a planographic printing plate to the paper or other substrate.(5) Blanket wash--A solvent used to remove ink from the blanket of a press.(6) Cured coating, cured ink, or cured adhesive--A coating, ink, or adhesive, which is dry to the touch.(7) Electrical and electronic components--Components and assemblies of components that generate, convert, transmit, or modify electrical energy. Electrical and electronic components include, but are not limited to, wires, windings, stators, rotors, magnets, contacts, relays, printed circuit boards, printed wire assemblies, wiring boards, integrated circuits, resistors, capacitors, and transistors. Cabinets that house electrical and electronic components are not considered electrical and electronic components. In the context of the provisions in §115.461(d) and (e) of this title (relating to Exemptions) and §115.463(e) of this title (relating to Control Requirements), Electronic component is defined as that portion of an assembly, including circuit card assemblies, printed wire assemblies, printed circuit boards, soldered joints, ground wires, bus bars, and other electrical fixtures, except for the actual cabinet in which the components are housed; and Electrical component is defined as an internal component such as wires, windings, stators, rotors, magnets, contacts, relays, energizers, and connections in an apparatus that generates or transmits electrical energy including, but not limited to: alternators, generators, transformers, electric motors, cables, and circuit breakers, except for the actual cabinet in which the components are housed. Electrical components of graphic arts application equipment and hot-line tools are also included in this category.(8) Electron beam ink--An ink that dries by chemical reaction caused by high energy electrons.(9) Facility--A business or businesses engaged in solvent cleaning operations which are owned or operated by the same person or persons and are located on the same or contiguous parcels.(10) Grams of VOC per liter of material--The weight of VOC per volume of material and can be calculated by the following equation.Attached Graphic(11) Graphic arts--All gravure, letterpress, flexographic, and lithographic printing processes.(12) Gravure printing-- An intaglio process in which the ink is carried in minute etched or engraved wells on a roll or cylinder. The excess ink is removed from the surface by a doctor blade.(13) High precision optic--An optical element used in an electro-optical device and is designed to sense, detect, or transmit light energy, including specific wavelengths of light energy and changes in light energy levels.(14) Hot-line tool--A specialized tool used primarily on the transmission systems, sub-transmission systems and distribution systems for replacing and repairing circuit components or for other types of work with electrically energized circuits.(15) Janitorial cleaning--The cleaning of building or facility components including, but not limited to, floors, ceilings, walls, windows, doors, stairs, bathrooms, furnishings, and exterior surfaces of office equipment, and excludes the cleaning of work areas where manufacturing or repair activity is performed.(16) Letterpress printing--The method in which the image area is raised relative to the non-image area and the ink is transferred to the paper directly from the image surface.(17) Liquid-tight food container--A paperboard container that can hold liquid food and food products without leaking even when it is held upside-down.(18) Lithographic printing--A plane-o-graphic method in which the image and non-image areas are on the same plane.(19) Magnet wire--Wire used in electromagnetic field application in electrical machinery and equipment such as transformers, motors, generators, and magnetic tape recorders.(20) Magnet wire coating operation--The process of applying insulation coatings such as varnish or enamel on magnet wire where wire is continuously drawn through a coating applicator.(21) Maintenance cleaning--A solvent cleaning operation or activity carried out to keep clean general work areas where manufacturing or repair activity is performed, to clean tools, machinery, molds, forms, jigs, and equipment. This definition does not include the cleaning of coatings, adhesives, or ink application equipment.(22) Manufacturing process--The process of making goods or articles by hand or by machinery.(23) Medical device--An instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent or other similar article, including any component or accessory, that meets one of the following conditions:(A) it is intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease; or(B) it is intended to affect the structure or any function of the body; or(C) it is defined in the National Formulary of the United States Pharmacopeia, or any supplement to them.(24) Medical device and pharmaceutical preparation operations--Medical devices, pharmaceutical products, and associated manufacturing and product handling equipment and material, work surfaces, maintenance tools, and room surfaces that are subject to the United States Federal Drug Administration current Good Manufacturing/Laboratory Practice, or Center for Disease Control or National Institute of Health guidelines for biological disinfection of surfaces.(25) Medical or pharmaceutical work surface--An area of a medical device or pharmaceutical facility where solvent cleaning is performed on work surfaces including, but not limited to, tables, countertops, and laboratory benches. Medical or pharmaceutical work surface shall not include items defined under janitorial cleaning.(26) Non-absorbent container--A container made of nonporous material, which does not allow the migration of the liquid solvent through it.(27) On-press component--A part, component, or accessory of a press that is cleaned while still being physically attached to the press.(28) On-press screen cleaning--A solvent cleaning activity carried out during press runs in screen printing operation to remove excess inks and contaminants from a screen that is still attached to the press.(29) Packaging printing--Any lithographic, flexographic, gravure, or letterpress printing that results in identifying or beautifying paper, paperboard, or cardboard products to be used as containers, enclosures, wrappings, or boxes.(30) Pharmaceutical product--A preparation or compound of medicinal drugs including, but not limited to, a prescription drug, analgesic, decongestant, antihistamine, cough suppressant, vitamin, mineral and herb, and is used by humans or animals for consumption to enhance personal health.(31) Photocurable resin--A chemical material that solidifies upon exposure to light.(32) Polyester resin operation--The fabrication, rework, repair, or touch-up of composite products for commercial, military, or industrial uses by mixing, pouring, manual application, molding, impregnating, injecting, forming, spraying, pultrusion, filament winding, or centrifugally casting with polyester resins.(33) Precision optics--The optical elements used in electro-optical devices that are designed to sense, detect, or transmit light energy, including specific wavelengths of light energy and changes of light energy levels.(34) Printing--In the graphic arts, is any operation that imparts color, design, alphabet, or numerals on a substrate.(35) Removable press component--A part, component, or accessory of a press that is physically attached to the press but is disassembled and removed from the press prior to being cleaned. Rollers, blankets, metering rollers, dampening rollers, ink trays, printing plates, fountains, impression cylinders and plates shall not be considered as removable press components.(36) Repair cleaning--A solvent cleaning operation or activity carried out during a repair process.(37) Repair process--The process of returning a damaged object or an object not operating properly to good condition.(38) Roller wash--A solvent used to remove ink from the rollers of a press.(39) Scientific instrument--An instrument (including the components, assemblies, and subassemblies used in their manufacture) and associated accessories and reagents that is used for the detection, measurement, analysis, separation, synthesis, or sequencing of various compounds.(40) Screen printing--A process in which the printing ink passes through a web or a fabric to which a refined form of stencil has been applied. The stencil openings determine the form and dimensions of the imprint.(41) Solvent--A volatile organic compound-containing liquid used to perform solvent cleaning operations. (42) Solvent cleaning operation--The removal of uncured adhesives, inks, and coatings; and contaminants such as dirt, soil, oil, and grease from parts, products, tools, machinery, equipment, vessels, floors, walls, and other work production-related areas using a solvent. In the context of the provisions in §115.461(d) and (e) of this title and §115.463(e) of this title, each distinct method of cleaning in a cleaning process that consists of a series of cleaning methods shall constitute a separate solvent cleaning operation. (43) Solvent flushing--The use of a solvent to remove uncured adhesives, uncured inks, uncured coatings, or contaminants from the internal surfaces and passages of the equipment by flushing solvent through the equipment.(44) Specialty flexographic printing--Flexographic printing on polyethylene or polypropylene food packaging, fertilizer bags, or liquid-tight food containers.(45) Stereolithography--A type of printing process that employs a system using a light to solidify photocurable resins in a desired configuration in order to produce a 3-dimensional object.(46) Stripping--The removal of cured coatings, cured inks, or cured adhesives.(47) Surface preparation--The removal of contaminants such as dust, soil, oil, grease, etc., prior to coating, adhesive, or ink applications.(48) Ultraviolet ink--An ink that dries by polymerization reaction induced by ultraviolet energy.(49) Volatile organic compound (VOC) composite partial pressure--The sum of the partial pressures of the compounds that meet the definition of VOC in §101.1 of this title (relating to Definitions). The VOC composite partial pressure is calculated as follows.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §115.460 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.461"><num value="115.461">§115.461</num><heading>Exemptions</heading><content>(a) Solvent cleaning operations located on a property with total actual volatile organic compounds (VOC) emissions of less than 3.0 tons per calendar year from all cleaning solvents, when uncontrolled, are exempt from the requirements of this division, except as specified in §115.468(b)(2) of this title (relating to Monitoring and Recordkeeping Requirements). When calculating the VOC emissions, solvents used for solvent cleaning operations that are exempt from this division under subsections (b) - (d) and (f) of this section are excluded. (b) The owner or operator of any process or operation subject to another division of this chapter that specifies solvent cleaning operation requirements related to that process or operation is exempt from the requirements in this division.(c) A solvent cleaning operation is exempt from this division if:(1) the process or operation that the solvent cleaning operation is associated with is subject to another division in this chapter; and(2) the VOC emissions from the solvent cleaning operation are controlled in accordance with an emission specification or control requirement of the division that the process or operation is subject to.(d) The following are exempt from the VOC limits in §115.463(a) of this title (relating to Control Requirements:(1) electrical and electronic components;(2) precision optics;(3) numisimatic dies;(4) resin mixing, molding, and application equipment;(5) coating, ink, and adhesive mixing, molding, and application equipment;(6) stripping of cured inks, cured adhesives, and cured coatings;(7) research and development laboratories;(8) medical device or pharmaceutical preparation operations; (9) performance or quality assurance testing of coatings, inks, or adhesives;(10) architectural coating manufacturing and application operations;(11) magnet wire coating operations;(12) semiconductor wafer fabrication;(13) coating, ink, resin, and adhesive manufacturing;(14) polyester resin operations;(15) flexographic and rotogravure printing processes;(16) screen printing operations; and(17) digital printing operations.(e) If the commission publishes notice in the Texas Register, as provided in §115.469(d) of this title (relating to Compliance Schedules) for the Dallas-Fort Worth area, or §115.469(e) of this title for the Houston-Galveston-Brazoria area, or both areas, to require compliance with the contingency measure control requirements of §115.463(e) of this title, then the exemptions in subsections (a) - (d) of this section are no longer available, and the following exemptions apply in the applicable area as of the compliance date specified in §115.469(d) or (e) of this title.(1) In the Dallas-Fort Worth area, in accordance with the schedule specified in §115.469(d) of this title, the following types of cleaning are exempt from the VOC content limits in §115.463(e)(1) of this title: (A) Cleaning of solar cells, laser hardware, scientific instruments, and high-precision optics;(B) Cleaning conducted with performance laboratory tests on coatings, adhesives, or inks; research and development programs; and laboratory tests in quality assurance laboratories;(C) Cleaning of paper-based gaskets, and clutch assemblies where rubber is bonded to metal by means of an adhesive;(D) Cleaning of cotton swabs to remove cottonseed oil before cleaning of high-precision optics;(E) Medical device and pharmaceutical facilities using up to 1.5 gallons per day of solvents;(F) The cleaning of photocurable resins from stereolithography equipment and models;(G) Cleaning of adhesive application equipment used for thin metal laminating operations provided the clean-up solvent used contains no more than 950 grams of VOC per liter;(H) Cleaning of electronic or electrical cables provided the clean-up solvent used contains no more than 400 grams of VOC per liter;(I) Touch up cleaning performed on printed circuit boards where surface mounted devices have already been attached provided that the solvent used contains no more than 800 grams of VOC per liter;(J) Cleaning carried out in batch loaded cold cleaners, vapor degreasers, conveyorized degreasers, or motion picture film cleaning equipment;(K) Janitorial cleaning, including graffiti removal; and(L) Stripping of cured coatings, cured ink, or cured adhesives.(2) In the Houston-Galveston-Brazoria area, in accordance with the schedule specified in §115.469(e) of this title, the following types of cleaning are exempt from the VOC content limits in §115.463(e)(2) of this title:(A) Cleaning of solar cells, laser hardware, scientific instruments, and high-precision optics;(B) Cleaning conducted with performance laboratory tests on coatings, adhesives, or inks; research and development programs; and laboratory tests in quality assurance laboratories;(C) Cleaning of paper-based gaskets, and clutch assemblies where rubber is bonded to metal by means of an adhesive;(D) Cleaning of cotton swabs to remove cottonseed oil before cleaning of high-precision optics;(E) Medical device and pharmaceutical facilities using up to 1.5 gallons per day of solvents;(F) The cleaning of photocurable resins from stereolithography equipment and models;(G) Cleaning of adhesive application equipment used for thin metal laminating operations provided the clean-up solvent used contains no more than 950 grams of VOC per liter;(H) Cleaning of electronic or electrical cables provided the clean-up solvent used contains no more than 400 grams of VOC per liter;(I) Touch up cleaning performed on printed circuit boards where surface mounted devices have already been attached provided that the solvent used contains no more than 800 grams of VOC per liter;(J) Cleaning carried out in batch loaded cold cleaners, vapor degreasers, conveyorized degreasers, or motion picture film cleaning equipment;(K) Janitorial cleaning, including graffiti removal; and(L) Stripping of cured coatings, cured ink, or cured adhesives.(f) Cleaning solvents supplied in aerosol cans are exempt from the VOC limits in §115.463(a) of this title if total aerosol use for the property is less than 160 fluid ounces per day.</content><note type="source"><p>Source Note: The provisions of this §115.461 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.463"><num value="115.463">§115.463</num><heading>Control Requirements</heading><content>(a) Except as specified in subsection (e) of this section, the owner or operator shall limit the volatile organic compounds (VOC) content of cleaning solutions to:(1) 0.42 pound of VOC per gallon of solution (lb VOC/gal solution), as applied; or(2) limit the composite partial vapor pressure of the cleaning solution to 8.0 millimeters of mercury at 20 degrees Celsius (68 degrees Fahrenheit).(b) As an alternative to subsection (a) of this section, the owner or operator shall operate a vapor control system capable of achieving an overall control efficiency of 85% by mass. Control device and capture efficiency testing must be performed in accordance with the testing requirements in §115.465 of this title (relating to Approved Test Methods and Testing Requirements).(c) The owner or operator of a solvent cleaning operation shall implement the following work practices during the handling, storage, and disposal of cleaning solvents and shop towels:(1) cover open containers and used applicators;(2) minimize air circulation around solvent cleaning operations;(3) properly dispose of used solvent and shop towels; and(4) implement equipment practices that minimize emissions (e.g. maintaining cleaning equipment to repair solvent leaks).(d) A solvent cleaning operation that becomes subject to subsection (a) of this section by exceeding the exemption limits in §115.461 of this title (relating to Exemptions) is subject to the provisions in subsection (a) of this section even if throughput or emissions later fall below exemption limits unless emissions are maintained at or below the controlled emissions level achieved while complying with subsection (a) of this section and one of the following conditions is met.(1) The project that caused throughput or emission rate to fall below the exemption limits in §115.461 of this title must be authorized by a permit, permit amendment, standard permit, or permit by rule required by Chapter 116 or Chapter 106 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification; and Permits by Rule, respectively). If a permit by rule is available for the project, the owner or operator shall continue to comply with subsection (a) of this section for 30 days after the filing of documentation of compliance with that permit by rule.(2) If authorization by permit, permit amendment, standard permit, or permit by rule is not required for the project, the owner or operator shall provide the executive director 30 days notice of the project in writing.(e) If the commission has published notice in the Texas Register, as provided in §115.469(d) or (e) of this title (relating to Compliance Schedules), to require compliance with the contingency measure control requirements for the Dallas-Fort Worth area, the Houston-Galveston-Brazoria area, or both areas the following control requirements apply instead of subsection (a) of this section.Attached Graphic(1) In the Dallas-Fort Worth area, in accordance with the schedule specified in §115.469(d) of this title, the limits in Table 1 of this subsection apply.(2) In the Houston-Galveston-Brazoria area, in accordance with the schedule specified in §115.469(e) of this title, the limits in Table 1 of this subsection apply.</content><note type="source"><p>Source Note: The provisions of this §115.463 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.464"><num value="115.464">§115.464</num><heading>Alternate Control Requirements</heading><content>For solvent cleaning operations subject to §115.463 of this title (relating to Control Requirements), alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.</content><note type="source"><p>Source Note: The provisions of this §115.464 adopted to be effective December 29, 2011, 36 TexReg 8897.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.465"><num value="115.465">§115.465</num><heading>Approved Test Methods and Testing Requirements</heading><content>The owner or operator shall demonstrate compliance with the control requirements in §115.463 of this title (relating to Control Requirements) by applying the following test methods, as appropriate.(1) Compliance with the volatile organic compound (VOC) limits in §115.463(a) or (e) of this title must be determined by the following methods, as applicable:(A) Method 24 (40 Code of Federal Regulations (CFR) Part 60, Appendix A);(B) American Society for Testing and Materials Method D2879, Standard Test Method for Vapor Pressure-Temperature Relationship and Initial Decomposition Temperature of Liquids by Isoteniscope to demonstrate compliance with §115.463(a)(2) of this title;(C) using standard reference texts for the true vapor pressure of each VOC component to demonstrate compliance with §115.463(a)(2) of this title; or(D) using analytical data from the cleaning solvent supplier or manufacturer's material safety data sheet.(2) The owner or operator subject to §115.463(b) of this title shall measure the capture efficiency using applicable procedures outlined in 40 CFR §52.741, Subpart O, Appendix B (as amended through October 21, 1996 (61 FR 54559)). These procedures are: Procedure T - Criteria for and Verification of a Permanent or Temporary Total Enclosure; Procedure L - VOC Input; Procedure G.2 - Captured VOC Emissions (Dilution Technique); Procedure F.1 - Fugitive VOC Emissions from Temporary Enclosures; and Procedure F.2 - Fugitive VOC Emissions from Building Enclosures.(A) The following exemptions apply to capture efficiency testing requirements.(i) If a source installs a permanent total enclosure that meets the specifications of Procedure T and that directs all VOC to a control device, then the capture efficiency is assumed to be 100%, and the source is exempted from capture efficiency testing requirements. This does not exempt the source from performance of any control device efficiency testing that may be required. In addition, a source must demonstrate all criteria for a permanent total enclosure are met during testing for control efficiency.(ii) If a source uses a vapor control system designed to collect and recover VOC (e.g., carbon adsorption system), an explicit measurement of capture efficiency is not necessary if the following conditions are met. The overall control of the system can be determined by directly comparing the input liquid VOC to the recovered liquid VOC. The general procedure for use in this situation is given in 40 CFR §60.433 (as amended through October 17, 2000 (65 FR 61761)), with the following additional restrictions.(I) The source must be able to equate solvent usage with solvent recovery on a 24-hour (daily) basis, rather than a 30-day weighted average. This verification must be done within 72 hours following each 24-hour period of the 30-day period.(II) The solvent recovery system (i.e., capture and control system) must be dedicated to a single process line (e.g., one process line venting to a carbon adsorber system) or if the solvent recovery system controls multiple process lines, the source must be able to demonstrate that the overall control (i.e., the total recovered solvent VOC divided by the sum of liquid VOC input to all process lines venting to the control system) meets or exceeds the most stringent standard applicable for any process line venting to the control system.(B) The capture efficiency must be calculated using one of the following protocols referenced. Any affected source must use one of these protocols, unless a suitable alternative protocol is approved by the executive director and the United States Environmental Protection Agency (EPA).(i) Gas/gas method using temporary total enclosure (TTE). The EPA specifications to determine whether a temporary enclosure is considered a TTE are given in Procedure T. The capture efficiency equation to be used for this protocol is:Attached Graphic(ii) Liquid/gas method using TTE. The EPA specifications to determine whether a temporary enclosure is considered a TTE are given in Procedure T. The capture efficiency equation to be used for this protocol is:Attached Graphic(iii) Gas/gas method using the building or room enclosure (BE) in which the affected source is located and in which the mass of VOC captured and delivered to a control device and the mass of fugitive VOC that escapes from the BE are measured while operating only the affected facility. All fans and blowers in the BE must be operating as they would under normal production. The capture efficiency equation to be used for this protocol is:Attached Graphic(iv) Liquid/gas method using a BE in which the mass of liquid VOC input to process and the mass of fugitive VOC that escapes from the BE are measured while operating only the affected facility. All fans and blowers in the BE must be operated as they would under normal production. The capture efficiency equation to be used for this protocol is:Attached Graphic(C) The operating parameters selected for monitoring of the capture system for compliance with the requirements in §115.468(a) of this title (relating to Monitoring and Recordkeeping Requirements) must be monitored and recorded during the initial capture efficiency testing and thereafter during facility operation. The executive director may require a new capture efficiency test if the operating parameter values change significantly from those recorded during the initial capture efficiency test.(3) In addition to the requirements of paragraph (2) of this section, the owner or operator shall determine compliance with §115.463(b) of this title by applying the following test methods, as appropriate:(A) Methods 1 - 4 (40 CFR Part 60, Appendix A) for determining flow rates, as necessary;(B) Method 25 (40 CFR Part 60, Appendix A) for determining total gaseous nonmethane organic emissions as carbon;(C) Method 25A or 25B (40 CFR Part 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis; and(D) additional performance test procedures described in 40 CFR §60.444 (as amended through October 18, 1983 (48 FR 48375)).(4) Minor modifications to the methods in paragraphs (1) - (3) of this section may be approved by the executive director. Methods other than those specified in paragraphs (1) - (3) of this section may be used if approved by the executive director and validated using Method 301 (40 CFR Part 63, Appendix A). For the purposes of this paragraph, substitute "executive director" each place that Method 301 references "administrator."</content><note type="source"><p>Source Note: The provisions of this §115.465 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.468"><num value="115.468">§115.468</num><heading>Monitoring and Recordkeeping Requirements</heading><content>(a) Monitoring requirements. The following monitoring requirements apply to the owner or operator of a solvent cleaning operation subject to this division that uses a vapor control system in accordance with §115.463(b) of this title (relating to Control Requirements). The owner or operator shall install and maintain monitors to accurately measure and record operational parameters of all required control devices, as necessary, to ensure the proper functioning of those devices in accordance with design specifications, including:(1) continuous monitoring of the exhaust gas temperature immediately downstream of direct-flame incinerators or the gas temperature immediately upstream and downstream of any catalyst bed;(2) the total amount of volatile organic compounds (VOC) recovered by carbon adsorption or other solvent recovery systems during a calendar month;(3) continuous monitoring of carbon adsorption bed exhaust; and(4) appropriate operating parameters for vapor control systems other than those specified in paragraphs (1) - (3) of this subsection.(b) Recordkeeping requirements. The following recordkeeping requirements apply to the owner or operator of a solvent cleaning operation subject to this division.(1) The owner or operator shall maintain records of the testing data, the material safety data sheet, or documentation of the standard reference texts used to determine the true vapor pressure of each VOC component, in accordance with the requirements in §115.465(1) of this title (relating to Approved Test Methods and Testing Requirements). The concentration of all VOC used to prepare the cleaning solution and, if diluted prior to use, the proportions that each of these materials is used must be recorded. Records must be sufficient to demonstrate continuous compliance with the VOC limits in §115.463(a) and (e) of this title.(2) The owner or operator claiming an exemption in §115.461 of this title (relating to Exemptions) shall maintain records sufficient to demonstrate continuous compliance with the applicable exemption criteria.(3) The owner or operator claiming exemption from this division in accordance with §115.461(c) of this title shall maintain records indicating the applicable division the process or operation is subject to as specified in §115.461(c)(1) of this title and the control requirements or emission specifications used to control the VOC emissions from the solvent cleaning operation as specified in §115.461(c)(2) of this title. The owner or operator shall also comply with the applicable recordkeeping requirements from the division the process or operation is subject to sufficient to demonstrate that the VOC emissions from the solvent cleaning operation are controlled in accordance with the control requirements or emission specifications of that division.(4) The owner or operator shall maintain records of any testing conducted in accordance with the provisions specified in §115.465(2) - (4) of this title.(5) Records must be maintained a minimum of two years and be made available upon request to authorized representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution agency with jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §115.468 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.469"><num value="115.469">§115.469</num><heading>Compliance Schedules</heading><content>(a) In Brazoria, Chambers, Collin, Dallas, Denton, Ellis, Fort Bend, Galveston, Harris, Johnson, Kaufman, Liberty, Montgomery, Parker, Rockwall, Tarrant, Waller, and Wise Counties the compliance date has passed for control requirements in §115.463(a) - (d) of this title (relating to Control Requirements) and all associated requirements, and the owner or operator of a solvent cleaning operation shall continue to comply with the requirements in this division, except as specified in subsection (d) and (e) of this section. (b) The owner or operator of a solvent cleaning operation in the Bexar County area subject to the requirements of this division shall comply with the requirements in this division no later than January 1, 2025. (c) The owner or operator of a solvent cleaning operation that becomes subject to this division on or after the applicable compliance date in this section shall comply with the requirements in this division no later than 60 days after becoming subject.(d) The owner or operator of a solvent cleaning operation in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise Counties shall be in compliance with the requirements of §115.463(e) of this title (relating to Control Requirements) no later than 270 days after the commission publishes notification in the Texas Register of its determination that the industrial cleaning solvent contingency requirements are necessary as a result of EPA publication of a notice in the Federal Register that the specified area failed to attain the applicable National Ambient Air Quality Standard for ozone by the attainment deadline or failed to demonstrate reasonable further progress as set forth in the 1990 Amendments to the federal Clean Air Act, §172(c)(9).(e) The owner or operator of a solvent cleaning operation in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties shall be in compliance with the requirements of §115.463(e) of this title no later than 270 days after the commission publishes notification in the Texas Register of its determination that the contingency requirements are necessary as a result of EPA publication of a notice in the Federal Register that the specified area failed to attain the applicable National Ambient Air Quality Standard for ozone by the attainment deadline or failed to demonstrate reasonable further progress as set forth in the 1990 Amendments to the federal Clean Air Act.</content><note type="source"><p>Source Note: The provisions of this §115.469 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.470"><num value="115.470">§115.470</num><heading>Applicability and Definitions</heading><content>(a) Applicability. Except as specified in §115.471 of this title (relating to Exemptions), the requirements in this division apply to the owner or operator of a manufacturing operation using adhesives or adhesive primers for any of the application processes specified in §115.473 of this title (relating to Control Requirements) in the Bexar County, Dallas-Fort Worth and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions). Adhesives or adhesive primers applied in the field (e.g., construction jobs in the field) are not subject to this division. If the commission publishes notice in the Texas Register , as provided in §115.479(c) of this title (relating to Compliance Schedules) for either the Dallas-Fort Worth area, or §115.479(d) of this title for the Houston-Galveston-Brazoria area, or both areas, to require compliance with the contingency measure control requirements of §115.473(e) of this title (relating to Control Requirements) for the Dallas-Fort Worth area and/or §115.473(f) of this title for the Houston-Galveston-Brazoria area, all adhesives or adhesive primers applied for compensation, regardless of location within the specified area, are subject to this division as of the compliance date specified in §115.479(c) or (d) of this title.(b) Definitions. Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382) or in §§3.2, 101.1, or 115.10 of this title (relating to Definitions), the terms in this division have the meanings commonly used in the field of air pollution control. In addition, the following meanings apply in this division unless the context clearly indicates otherwise.(1) Acrylonitrile-butadiene-styrene (ABS)--A plastic that is made by reacting monomers of acrylonitrile, butadiene, and styrene and is normally identified with an ABS marking.(2) Acrylonitrile-butadiene-styrene or ABS welding--Any process to weld acrylonitrile-butadiene-styrene pipe.(3) Acrylonitrile-butadiene-styrene or ABS to polyvinyl chloride (PVC) transition cement--A plastic welding cement used to join ABS and PVC building drains or building sewers.(4) Acrylonitrile-butadiene-styrene or ABS welding cement--A plastic welding cement that is used to join ABS pipe, fittings, and other system components, including, but not limited to, components for shower pan liner, drain, closet flange, and backwater valve systems.(5) Adhesive--Any chemical substance applied for the purpose of bonding two surfaces together other than by mechanical means.(6) Adhesive primer--Any product intended by the manufacturer for application to a substrate, prior to the application of an adhesive, to provide a bonding surface.(7) Adhesive tape--A backing material coated with an adhesive, and includes, but is not limited to, drywall tape, heat sensitive tape, pressure-sensitive adhesive tape, and water-activated tape.(8) Aerosol adhesive or adhesive primer--An adhesive or adhesive primer packaged as an aerosol product in which the spray mechanism is permanently housed in a non-refillable can designed for handheld application without the need for ancillary hoses or spray equipment.(9) Aerospace component--Any fabricated part, processed part, assembly of parts, or completed unit of any aircraft including but not limited to airplanes, helicopters, missiles, rockets, and space vehicles. This definition includes electronic components.(10) Architectural application--The use of adhesives or adhesive primers or both adhesive primers and adhesives on stationary structures, or their appurtenances including but not limited to mobile homes, hand railings; cabinets; bathroom and kitchen fixtures; fences; rain-gutters and down-spouts; window screens; lampposts; heating and air conditioning equipment; other mechanical equipment; large fixed stationary tools; signs; motion picture and television production sets; and concrete forms.(11) Application process--A series of one or more application systems and any associated drying area or oven where an adhesive or adhesive primer is applied, dried, or cured. An application process ends at the point where the adhesive is dried or cured, or prior to any subsequent application of a different adhesive. It is not necessary for an application process to have an oven or flash-off area.(12) Application system--Devices or equipment designed for the purpose of applying an adhesive or adhesive primer to a surface. The devices may include, but are not limited to, brushes, sprayers, flow coaters, dip tanks, rollers, and extrusion coaters.(13) Building envelope--The exterior and demising partitions of a building that enclose conditioned space.(14) Building envelope membrane adhesive--An adhesive used to adhere membranes applied to the building envelope to provide a barrier to air or vapor leakage through the building envelope that separates conditioned from unconditioned spaces. Building envelope membranes are applied to diverse materials, including, but not limited to, concrete masonry units, oriented stranded board, gypsum board, and wood substrates.(15) Carpet pad adhesive--An adhesive used for the installation of a carpet pad (or cushion) beneath a carpet.(16) Ceramic tile installation adhesive--Any adhesive intended by the manufacturer for use in the installation of ceramic tiles.(17) Chlorinated polyvinyl chloride plastic or CPVC plastic welding--A polymer of the vinyl chloride monomer that contains 67% chlorine and is normally identified with a chlorinated polyvinyl chloride marking.(18) Chlorinated polyvinyl chloride or CPVC welding cement for life safety systems--A CPVC welding cement with an increased resistance to high temperatures which is used for life safety systems, including standalone and multipurpose fire sprinkler systems.(19) Chlorinated polyvinyl chloride welding or CPVC welding--An adhesive labeled for welding of chlorinated polyvinyl chloride that is used to join CPVC pipe, fittings, and other system components, including, but not limited to, components for shower pan liner, drain, closet flange, and backwater valve systems.(20) Computer diskette manufacturing--The process where the fold-over flaps are glued to the body of a vinyl jacket.(21) Contact adhesive--An adhesive:(A) designed for application to both surfaces to be bonded together;(B) allowed to dry before the two surfaces are placed in contact with each other;(C) forms an immediate bond that is impossible, or difficult, to reposition after both adhesive-coated surfaces are placed in contact with each other;(D) does not need sustained pressure or clamping of surfaces after the adhesive-coated surfaces have been brought together using sufficient momentary pressure to establish full contact between both surfaces; and(E) does not include rubber cements that are primarily intended for use on paper substrates or vulcanizing fluids that are designed and labeled for tire repair only.(22) Cove base--A flooring trim unit, generally made of vinyl or rubber, having a concave radius on one edge and a convex radius on the opposite edge that is used in forming a junction between the bottom wall course and the floor or to form an inside corner.(23) Cove base installation adhesive--Any adhesive intended by the manufacturer to be used for the installation of cove base or wall base on a wall or vertical surface at floor level.(24) Cyanoacrylate adhesive--Any adhesive with a cyanoacrylate content of at least 95% by weight.(25) Daily weighted average--The total weight of volatile organic compounds (VOC) emissions from all adhesives or adhesive primers subject to the same VOC content limit in §115.473(a) of this title (relating to Control Requirements), divided by the total volume of those adhesives or adhesive primers (minus water and exempt solvent) delivered to the application system each day. Adhesives or adhesive primers subject to different emission standards in §115.473(a) of this title must not be combined for purposes of calculating the daily weighted average. In addition, determination of compliance is based on each adhesive or adhesive primer application process.(26) Dip coat--A method of application to a substrate by submersion into, and removal from, a bath.(27) Dry wall adhesive--An adhesive used during the installation of gypsum dry wall to studs or solid surfaces.(28) Edge glue--An adhesive applied to the edge of multi-sheet carbonless forms prior to being fanned apart after drying.(29) Electrostatic spray--A spray method where the atomized droplets are charged and subsequently deposited on the substrate by electrostatic attraction.(30) Ethylene propylene diene terpolymer (EPDM) and thermoplastic polyolefin (TPO) single-ply roof membrane adhesive--Any adhesive to be used for the installation or repair of ethylene propylene diene terpolymer (EPDM) and thermoplastic polyolefin (TPO) single-ply roof membrane. Installation includes, but is not limited to, attaching the edge of the membrane to the edge of the roof and applying flashings to vents, pipes, or ducts that protrude through the membrane.(31) Ethylene propylene diene monomer roof membrane--A prefabricated single sheet of elastomeric material composed of ethylene propylene diene monomer and that is field-applied to a building roof using one layer or membrane material.(32) Fiberglass--A material composed of fine filaments of glass.(33) Flexible vinyl--Non-rigid polyvinyl chloride plastic with a 5.0% by weight plasticizer content.(34) Flow coat--An application method that coats an object by flowing a stream of an adhesive or adhesive primers or both adhesive primers and adhesives over the object and draining off any excess.(35) Glass, porcelain, and stone tile adhesive--Any adhesive used for the installation of tile products.(36) Hand application methods--The application of adhesives or adhesive primers or both adhesive primers and adhesives using handheld equipment. Such equipment includes paint brush, hand roller, trowel, spatula, dauber, rag, sponge, and mechanically- and/or pneumatic-driven syringe provided there is no atomization of the materials.(37) High-volume, low-pressure (HVLP) spray--Application method to apply adhesives or adhesive primers or both adhesive primers and adhesives by means of a spray gun that is designed to be operated between 0.1 and 10 pounds per square inch gauge air pressure measured dynamically at the center of the air cap and at the air horns.(38) Higher viscosity CPVC welding cement--A CPVC welding cement with a viscosity greater than or equal to 500 centipoise.(39) Hot applied modified bitumen or built up roof adhesive--A thermoplastic hot melt adhesive which requires high temperature conversion to a fluid at the point of application and complies with ASTM International Test Method D312 or D6152. Installation or repair includes the application of roofing insulation, roofing ply sheets, roofing membranes, and aggregate surfacing.(40) Indoor floor covering installation adhesive--Any adhesive intended by the manufacturer for use in the installation of wood flooring, carpet, resilient tile, vinyl tile, vinyl-backed carpet, resilient sheet and roll, or artificial grass. Adhesives used to install ceramic tile and perimeter-bonded sheet flooring with vinyl backing onto a non-porous substrate, such as flexible vinyl, are excluded from this definition. In the context of the provisions of §115.471(d) of this title (relating to Exemptions), and §115.473(e) and (f) of this title (relating to Control Requirements), indoor floor covering installation adhesive is defined as any adhesive used during the installation of a carpet or indoor flooring that is in an enclosure and is not exposed to ambient weather conditions during normal use.(41) Laminate--A product made by bonding together two or more layers of material.(42) Metal to urethane/rubber molding or casting adhesive--Any adhesive intended by the manufacturer to bond metal to high density or elastomeric urethane or molded rubber materials, in heater molding or casting processes, to fabricate products such as rollers for computer printers or other paper handling equipment.(43) Modified bituminous material--A material obtained from natural deposits of asphalt or residues from the distillation of crude oil petroleum or coal which consist mainly of hydrocarbons, and include, but are not limited to, asphalt, tar, pitch, and asphalt tile that are soluble in carbon disulfide.(44) Modified bituminous primer--A primer coating consisting of bituminous materials, and a high flash solvent used to prepare a surface by improving the adhesion and absorbing dust from the surface for adhesive or flashing cement bitumen membrane.(45) Motor vehicle adhesive--An adhesive, including glass-bonding adhesive, used in a process that is not an automobile or light-duty truck assembly coating process, applied for the purpose of bonding two vehicle surfaces together without regard to the substrates involved.(46) Motor vehicle glass-bonding primer--A primer, used in a process that is not an automobile or light-duty truck assembly coating process, applied to windshield or other glass, or to body openings, to prepare the glass or body opening for the application of glass-bonding adhesives or the installation of adhesive-bonded glass. Motor vehicle glass-bonding primer includes glass-bonding/cleaning primers that perform both functions (cleaning and priming of the windshield or other glass, or body openings) prior to the application of adhesive or the installation of adhesive-bonded glass.(47) Motor vehicle weatherstrip adhesive--An adhesive, used in a process that is not an automobile or light-duty truck assembly coating process, applied to weatherstripping materials for the purpose of bonding the weatherstrip material to the surface of the vehicle.(48) Multipurpose construction adhesive--Any adhesive intended by the manufacturer for use in the installation or repair of multiple construction materials, including but not limited to drywall, subfloor, panel, fiberglass reinforced plastic (FRP), ceiling tile, and acoustical tile. In the context of the provisions of §115.471(d) of this title (related to Exemptions), and §115.473(e), and (f) of this title (related to Control Requirements), multipurpose construction adhesive is defined as adhesives designated by the manufacturer to be used to adhere multiple different substrates together. Adhesives such as ABS to CPVC transition cement; carpet pad adhesive; glass, porcelain, and stone tile adhesive; or adhesives used to install ceramic tile and perimeter-bonded sheet flooring with vinyl backing onto a non-porous substrate, such as flexible vinyl, are excluded from this definition.(49) Outdoor floor covering installation adhesive--Any adhesive intended by the manufacturer for use in the installation of floor covering that is not in an enclosure and that is exposed to ambient weather conditions during normal use.(50) Panel adhesive--An adhesive used for the installation of plywood, pre-decorated hardboard (or tileboard), fiberglass reinforced plastic, and similar pre-decorated or non-decorated panels to studs or solid surfaces.(51) Panel installation--The installation of plywood, pre-decorated hardboard or tileboard, fiberglass reinforced plastic, and similar pre-decorated or non-decorated panels to studs or solid surfaces using an adhesive formulated for that purpose.(52) Perimeter bonded sheet flooring installation--The installation of sheet flooring with vinyl backing onto a nonporous substrate using an adhesive designed to be applied only to a strip of up to four inches wide around the perimeter of the sheet flooring.(53) Plastic solvent welding adhesive--Any adhesive intended by the manufacturer for use to dissolve the surface of plastic to form a bond between mating surfaces.(54) Plastic solvent welding adhesive primer--Any primer intended by the manufacturer for use to prepare plastic substrates prior to bonding or welding.(55) Plastic foam--Foam constructed of plastics.(56) Plastics--Synthetic materials chemically formed by the polymerization of organic (carbon-based) substances. Plastics are usually compounded with modifiers, extenders, or reinforcers and are capable of being molded, extruded, cast into various shapes and films, or drawn into filaments.(57) Polyvinyl chloride plastic or PVC plastic--A polymer of the chlorinated vinyl monomer that contains 57% chlorine.(58) Polyvinyl chloride welding adhesive or PVC welding adhesive--Any adhesive intended by the manufacturer for use in the welding of polyvinyl chloride plastic pipe.(59) Porous material--A substance that has tiny openings, often microscopic, in which fluids may be absorbed or discharged, including, but not limited to, paper and corrugated paperboard. For the purposes of this definition, porous material does not include wood.(60) Pounds of volatile organic compounds (VOC) per gallon of adhesive (minus water and exempt solvent)--The basis for content limits for application processes that can be calculated by the following equation:Attached Graphic(61) Pounds of volatile organic compounds (VOC) per gallon of solids--The basis for content limits for application processes that can be calculated by the following equation:Attached Graphic(62) Pressure sensitive adhesive--An adhesive, typically coated on backings or release liners that forms a bond when pressure is applied, without the need for solvent, water, or heat.(63) Reinforced plastic composite--A composite material consisting of plastic reinforced with fibers.(64) Roof adhesive primer--A film-forming material applied to a substrate, prior to the application of an adhesive or adhesive tape to increase adhesion or bond strength, promote wetting, or form a chemical bond with a subsequently applied adhesive and is marketed and sold exclusively for the installation or repair of roofing materials.(65) Rubber--Any natural or manmade rubber substrate, including, but not limited to, styrene-butadiene rubber, polychloroprene (neoprene), butyl rubber, nitrile rubber, chlorosulfonated polyethylene, and ethylene propylene diene terpolymer.(66) Rubber flooring adhesive--An adhesive that is used for the installation of flooring material in which both the back and top surfaces are made of synthetic rubber, and which may be in sheet or tile form.(67) Rubber vulcanization adhesive--A reactive adhesive used for rubber-to-substrate bonding achieved during vulcanization of the rubber elastomer at temperatures greater than 250°F. Vulcanized rubber adhesive does not include bonding previously vulcanized rubber.(68) Sheet rubber lining installation--The process of applying sheet rubber liners by hand to metal or plastic substrates to protect the underlying substrate from corrosion or abrasion. These processes also include laminating sheet rubber to fabric by hand.(69) Shingle laminating adhesive--An asphalt based thermoplastic hot melt adhesive used to adhere individual layers during the manufacture of multi-layer asphalt shingles.(70) Shoe repair, luggage, and handbag adhesive--An adhesive used to repair worn, torn, or otherwise damaged uppers, soles, and heels of shoes, or for making repairs to luggage and handbags.(71) Single-ply roof membrane--A prefabricated single sheet of rubber, normally ethylene propylene diene terpolymer, that is field-applied to a building roof using one layer of membrane material. For the purposes of this definition, single-ply roof membrane does not include membranes prefabricated from ethylene propylene diene monomer.(72) Single-ply roof membrane installation and repair adhesive--Any adhesive labeled for use in the installation or repair of single-ply roof membrane. Installation includes, as a minimum, attaching the edge of the membrane to the edge of the roof and applying flashings to vents, pipes, and ducts that protrude through the membrane. Repair includes gluing the edges of torn membrane together, attaching a patch over a hole, and reapplying flashings to vents, pipes, or ducts installed through the membrane.(73) Single-ply roof membrane adhesive primer--Any primer labeled for use to clean and promote adhesion of the single-ply roof membrane seams or splices prior to bonding.(74) Solvent welding--The softening of the surfaces of two substrates by wetting them with solvents or adhesives or both and joining them together through a chemical reaction or series of reactions to form a fused union.(75) Specialty adhesives--A contact adhesive that is used to bond all of the following substrates to any surface: melamine covered board, metal, unsupported vinyl, Teflon, ultra-high molecular weight polyethylene, rubber, and wood veneer 1/16 inch or less in thickness.(76) Structural glazing--A process that includes the application of adhesive to bond glass, ceramic, metal, stone, or composite panels to exterior building frames.(77) Structural glazing adhesive--An adhesive used to adhere glass, ceramic, metal, stone, or composite panels to exterior building frames.(78) Structural wood member adhesive--An adhesive used for the construction of any load bearing joints in wooden joists, trusses, or beams.(79) Subfloor adhesive--is an adhesive used for the installation of subflooring material over floor joists.(80) Subfloor installation--The installation of subflooring material over floor joists, including the construction of any load-bearing joists. Subflooring is covered by a finish surface material.(81) Thin metal laminating adhesive--Any adhesive intended by the manufacturer for use in bonding multiple layers of metal to metal or metal to plastic in the production of electronic or magnetic components in which the thickness of the bond line(s) is less than 0.25 mil.(82) Tire repair--A process that includes expanding a hole, tear, fissure, or blemish in a tire casing by grinding or gouging, applying adhesive, and filling the hole or crevice with rubber.(83) Tire tread adhesive--Any adhesive to be applied to the back of precured tread rubber and to the casing and cushion rubber, or to be used to seal buffed tire casings to prevent oxidation while the tire is being prepared for a new tread.(84) Top and trim adhesive--An adhesive used during the installation of automotive and marine trim, including, but not limited to, headliners, vinyl tops, vinyl trim, sunroofs, dash covering, door covering, floor covering, panel covering, and upholstery.(85) Traffic marking tape--Preformed reflective tape that is applied to public streets, highways, and other surfaces, including, but not limited to, curbs, berms, driveways, and parking lots.(86) Transfer efficiency--The ratio of the amount of adhesive or adhesive primer adhering to an object to the total weight or volume, respectively, of the solids dispensed in the application process, expressed as a percentage.(87) Undersea-based weapon system components--The fabrication of parts, assembly of parts or completed units of any portion of a missile launching system used on undersea ships.(88) Vehicle glass adhesive primer--A primer applied to vehicle glass or to the frame of a vehicle prior to installation or repair of the vehicle glass using an adhesive or sealant to improve adhesion to the pinch weld. For the purposes of this definition, a vehicle is a mobile machine that transports passengers or cargo, and includes, but is not limited to, automobiles, trucks, buses, motorcycles, trains, ships, and boats.(89) Vinyl compositions tile (VCT)--A material made from thermoplastic resins, fillers, and pigments.(90) Vinyl compositions tile adhesive or VCT adhesive--An adhesive that is used for the installation of VCT material.(91) Waterproof resorcinol glue--A two-part resorcinol-resin-based adhesive designed for applications where the bond line must be resistant to conditions of continuous immersion in fresh or salt water.(92) Wood flooring adhesive--an adhesive used to install a wood floor surface, which may be in the form of parquet tiles, wood planks, or strip-wood.</content><note type="source"><p>Source Note: The provisions of this §115.470 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective May 16, 2024, 49 TexReg 3292; amended to be effective December 12, 2024, 49 TexReg 9978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.471"><num value="115.471">§115.471</num><heading>Exemptions</heading><content>(a) Except as specified in subsection (d) of this section, the owner or operator of application processes located on a property with actual combined emissions of volatile organic compounds (VOC) less than 3.0 tons per calendar year, when uncontrolled, from all adhesives, adhesive primers, and solvents used during related cleaning operations, is exempt from the requirements of this division, except as specified in §115.478(b)(2) of this title (relating to Monitoring and Recordkeeping Requirements). When calculating the VOC emissions, adhesives and adhesive primers that are exempt under subsections (b) and (c) of this section are excluded.(b) Except as specified in subsection (d) of this section, the following application processes are exempt from the VOC limits in §115.473(a) of this title (relating to Control Requirements) and the application system requirements in §115.473(b) of this title:(1) adhesives or adhesive primers being tested or evaluated in any research and development, quality assurance, or analytical laboratory;(2) adhesives or adhesive primers used in the assembly, repair, or manufacture of aerospace components or undersea-based weapon system components;(3) adhesives or adhesive primers used in medical equipment manufacturing operations;(4) cyanoacrylate adhesive application processes;(5) aerosol adhesive and aerosol adhesive primer application processes;(6) polyester-bonding putties used to assemble fiberglass parts at fiberglass boat manufacturing properties and at other reinforced plastic composite manufacturing properties; and(7) processes using adhesives and adhesive primers that are supplied to the manufacturer in containers with a net volume of 16 ounces or less or a net weight of 1.0 pound or less.(c) Except as specified in subsection (d) of this section, the owner or operator of any process or operation subject to another division of this chapter that specifies VOC content limits for adhesives or adhesive primers used during any of the application processes listed in §115.473(a) of this title, is exempt from the requirements in this division. Adhesives and adhesive primers used for miscellaneous metal and plastic parts surface coating processes in §115.453(a)(1)(C) - (F) and (2) of this title (related to Control Requirements) meeting a specialty application process definition in §115.470 of this title (relating to Applicability and Definitions) are not included in this exemption. Contact adhesives are not included in this exemption. When an adhesive or adhesive primer meets more than one adhesive application process definition in §115.470 of this title, the least stringent applicable VOC content limit applies.(d) If the commission publishes notice in the Texas Register , as provided either in §115.479(c) of this title (relating to Compliance Schedules) for the Dallas-Fort Worth area or §115.479(d) of this title for the Houston-Galveston-Brazoria area, or both areas, to require compliance with the contingency measure control requirements of §115.473(e) of this title for the Dallas-Fort Worth area and/or §115.473(f) of this title for the Houston-Galveston-Brazoria area, then the exemptions in subsections (a) - (c) of this section are no longer available, and the following exemptions apply in the applicable area as of the compliance date specified in §115.479(c) or (d) of this title.(1) The owner or operator of application processes who demonstrates that the total volume of noncompliant products, including all adhesives, adhesive primers, and solvents used during related cleaning operations, located on the property is less than 55 gallons per calendar year is exempt from the requirements of this division, except as specified in §115.478(b)(2) of this title. The owner or operator may not use this paragraph to exclude noncompliant adhesives used in architectural applications; contact adhesives; special purpose contact adhesives; adhesives used on porous substrates; rubber vulcanization adhesives and top and trim adhesives.(2) The requirements in §115.473(e) and (f) do not apply to:(A) adhesives or adhesive primers used in the assembly, repair, or manufacture of aerospace components;(B) adhesive tape;(C) aerosol adhesives and primers dispensed from non-refillable aerosol spray systems;(D) regulated products sold in quantities of one fluid ounce or less;(E) adhesives used to glue flowers to parade floats;(F) adhesives used to fabricate orthotics and prosthetics under a medical doctor's prescription;(G) shoe repair, luggage, and handbag adhesives;(H) research and development programs and quality assurance labs;(I) solvent welding operations used in the manufacturing of medical devices; or(J) adhesives used in tire repair.</content><note type="source"><p>Source Note: The provisions of this §115.471 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292; amended to be effective December 12, 2024, 49 TexReg 9978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.473"><num value="115.473">§115.473</num><heading>Control Requirements</heading><content>(a) The owner or operator shall limit volatile organic compounds (VOC) emissions from all adhesives and adhesive primers used during the specified application processes to the following VOC content limits in pounds of VOC per gallon of adhesive (lb VOC/gal adhesive) (minus water and exempt solvent compounds), as delivered to the application system. These limits are based on the daily weighted average of all adhesives or adhesive primers delivered to the application system each day. If an adhesive or adhesive primer is used to bond dissimilar substrates together, then the applicable substrate category with the least stringent VOC content limit applies. The requirements in this subsection are replaced with the requirements in subsection (e) of this section in the Dallas-Fort Worth area upon the compliance date specified in §115.479(c) of this title (relating to Compliance Schedules) or with the requirements in subsection (f) of this section in the Houston-Galveston-Brazoria area upon the compliance date specified in §115.479(d) of this title.Attached Graphic(1) The owner or operator shall meet the VOC content limits in this subsection by using one of the following options.(A) The owner or operator shall apply low-VOC adhesives or adhesive primers.(B) The owner or operator shall apply adhesives or adhesive primers in combination with the operation of a vapor control system.(2) As an alternative to paragraph (1) of this subsection, the owner or operator may operate a vapor control system capable of achieving an overall control efficiency of 85% of the VOC emissions from adhesives and adhesive primers. Control device and capture efficiency testing must be performed in accordance with the testing requirements in §115.475(3) and (4) of this title (relating to Approved Test Methods and Testing Requirements). If the owner or operator complies with the overall control efficiency option under this paragraph, then the owner or operator is exempt from the application system requirements of subsection (b) of this section.(3) An owner or operator applying adhesives or adhesive primers in combination with a vapor control system to meet the VOC content limits in paragraph (1) of this subsection, shall use the following equation to determine the minimum overall control efficiency necessary to demonstrate equivalency. Control device and capture efficiency testing must be performed in accordance with the testing requirements in §115.475(3) and (4) of this title.Attached Graphic(b) The owner or operator of any application process subject to this division shall not apply adhesives or adhesive primers unless one of the following application systems is used:(1) electrostatic spray;(2) high-volume, low-pressure spray (HVLP);(3) flow coat;(4) roll coat or hand application, including non-spray application methods similar to hand or mechanically powered caulking gun, brush, or direct hand application;(5) dip coat;(6) airless spray;(7) air-assisted airless spray; or(8) other application system capable of achieving a transfer efficiency equivalent to or better than that achieved by HVLP spray. For the purpose of this requirement, the transfer efficiency of HVLP spray is assumed to be 65%. The owner or operator shall demonstrate that either the application system being used is equivalent to the transfer efficiency of an HVLP spray or that the application system being used has a transfer efficiency of at least 65%.(c) The following work practices apply to the owner or operator of each application process subject to this division.(1) For the storage, mixing, and handling of all adhesives, adhesive primers, thinners, and adhesive-related waste materials, the owner or operator shall:(A) store all VOC-containing adhesives, adhesive primers, and process-related waste materials in closed containers;(B) ensure that mixing and storage containers used for VOC-containing adhesives, adhesive primers, and process-related waste materials are kept closed at all times;(C) minimize spills of VOC-containing adhesives, adhesive primers, and process-related waste materials; and(D) convey VOC-containing adhesives, adhesive primers, and process-related waste materials from one location to another in closed containers or pipes.(2) For the storage, mixing, and handling of all surface preparation materials and cleaning materials, the owner or operator shall:(A) store all VOC-containing cleaning materials and used shop towels in closed containers;(B) ensure that storage containers used for VOC-containing cleaning materials are kept closed at all times except when depositing or removing these materials;(C) minimize spills of VOC-containing cleaning materials;(D) convey VOC-containing cleaning materials from one location to another in closed containers or pipes; and(E) minimize VOC emissions from the cleaning of application, storage, mixing, and conveying equipment by ensuring that equipment cleaning is performed without atomizing the cleaning solvent and all spent solvent is captured in closed containers.(d) An application process that becomes subject to subsection (a) of this section by exceeding the exemption limits in §115.471(a) of this title (relating to Exemptions) is subject to the provisions in subsection (a) of this section even if throughput or emissions later fall below exemption limits unless emissions are maintained at or below the controlled emissions level achieved while complying with subsection (a) of this section and one of the following conditions is met.(1) The project that caused a throughput or emission rate to fall below the exemption limits in §115.471(a) of this title must be authorized by a permit, permit amendment, standard permit, or permit by rule required by Chapters 106 or 116 of this title (relating to Permits by Rule; and Control of Air Pollution by Permits for New Construction or Modification, respectively). If a permit by rule is available for the project, the owner or operator shall continue to comply with subsection (a) of this section for 30 days after the filing of documentation of compliance with that permit by rule.(2) If authorization by permit, permit amendment, standard permit, or permit by rule is not required for the project, the owner or operator shall provide the executive director 30 days notice of the project in writing.(e) In accordance with the compliance schedule for contingency requirements in §115.479(c) of this title in the Dallas-Fort Worth area, the owner or operator shall apply low-VOC adhesives or adhesive primers to limit VOC emissions from all adhesives and adhesive primers used during the specified application processes to the VOC content limits listed in the tables in this subsection in grams of VOC per liter of adhesive (minus water and exempt solvent compounds), as delivered to the application system. If an adhesive or adhesive primer is used to bond dissimilar substrates together, then the applicable substrate category with the least stringent VOC content limit applies.Attached Graphic(f) In accordance with the compliance schedule for contingency requirements in §115.479(d) of this title in the Houston-Galveston-Brazoria area, the owner or operator shall apply low-VOC adhesives or adhesive primers to limit VOC emissions from all adhesives and adhesive primers used during the specified application processes to the VOC content limits listed in the tables in this subsection in grams of VOC per liter of adhesive (minus water and exempt solvent compounds), as delivered to the application system. If an adhesive or adhesive primer is used to bond dissimilar substrates together, then the applicable substrate category with the least stringent VOC content limit applies.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §115.473 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292; amended to be effective December 12, 2024, 49 TexReg 9978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.474"><num value="115.474">§115.474</num><heading>Alternate Control Requirements</heading><content>For the owner or operator of an application process subject to this division, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.</content><note type="source"><p>Source Note: The provisions of this §115.474 adopted to be effective December 29, 2011, 36 TexReg 8897.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.475"><num value="115.475">§115.475</num><heading>Approved Test Methods and Testing Requirements</heading><content>The owner or operator shall demonstrate compliance with the volatile organic compounds (VOC) content limits in §115.473(a), (e), or (f) of this title (relating to Control Requirements), as applicable, by applying the following test methods, as appropriate. Where a test method also inadvertently measures compounds that are exempt solvent, an owner or operator may exclude the exempt solvent when determining compliance with a VOC content limit. As an alternative to the test methods in this section, the VOC content of an adhesive or adhesive primer may be determined by using analytical data from the material safety data sheet.(1) Except for reactive adhesives, compliance with the VOC content limits in §115.473(a), (e), or (f) of this title, as applicable, must be determined using Method 24 (40 Code of Federal Regulations (CFR) Part 60, Appendix A).(2) Compliance with the VOC content limits for reactive adhesives in §115.473(a), (e), or (f) of this title, as applicable, must be determined using 40 CFR Part 63, Subpart PPPP, Appendix A, (as amended through April 24, 2007 (72 FR 20237)).(3) The owner or operator of an application process subject to §115.473 of this title shall measure the capture efficiency using the applicable procedures outlined in 40 CFR §52.741, Subpart O, Appendix B (as amended through October 21, 1996 (61 FR 54559)). These procedures are: Procedure T-Criteria for and Verification of a Permanent or Temporary Total Enclosure; Procedure L - VOC Input; Procedure G.2 - Captured VOC Emissions (Dilution Technique); Procedure F.1 - Fugitive VOC Emissions from Temporary Enclosures; and Procedure F.2 - Fugitive VOC Emissions from Building Enclosures.(A) The following exemptions apply to capture efficiency testing requirements.(i) If a source installs a permanent total enclosure that meets the specifications of Procedure T and that directs all VOC to a control device, then the capture efficiency is assumed to be 100%, and the source is exempted from capture efficiency testing requirements. This does not exempt the source from performance of any control device efficiency testing that may be required. In addition, a source must demonstrate all criteria for a permanent total enclosure are met during testing for control efficiency.(ii) If a source uses a vapor control system designed to collect and recover VOC (e.g., carbon adsorption system), an explicit measurement of capture efficiency is not necessary if the following conditions are met. The overall control efficiency of the system can be determined by directly comparing the input liquid VOC to the recovered liquid VOC. The general procedure for use in this situation is given in 40 CFR §60.433 (as amended through October 17, 2000 (65 FR 61761)), with the following additional restrictions.(I) The source must be able to equate solvent usage with solvent recovery on a 24-hour (daily) basis, rather than a 30-day weighted average. This verification must be done within 72 hours following each 24-hour period of the 30-day period.(II) The solvent recovery system (i.e., capture and control system) must be dedicated to a single process line (e.g., one process line venting to a carbon adsorber system) or if the solvent recovery system controls multiple process lines, the source must be able to demonstrate that the overall control efficiency (i.e., the total recovered solvent VOC divided by the sum of liquid VOC input to all process lines venting to the control system) meets or exceeds the most stringent standard applicable for any process line venting to the control system.(B) The capture efficiency must be calculated using one of the following protocols referenced unless a suitable alternative protocol is approved by the executive director and the United States Environmental Protection Agency (EPA).(i) Gas/gas method using temporary total enclosure (TTE). The EPA specifications to determine whether a temporary enclosure is considered a TTE are given in Procedure T. The capture efficiency equation to be used for this protocol is:Attached Graphic(ii) Liquid/gas method using TTE. The EPA specifications to determine whether a temporary enclosure is considered a TTE are given in Procedure T. The capture efficiency equation to be used for this protocol is:Attached Graphic(iii) Gas/gas method using the building or room enclosure (BE) in which the affected source is located and in which the mass of VOC captured and delivered to a control device and the mass of fugitive VOC that escapes from BE are measured while operating only the affected facility. All fans and blowers in the BE must be operating as they would under normal production. The capture efficiency equation to be used for this protocol is:Attached Graphic(iv) Liquid/gas method using a BE in which the mass of liquid VOC input to process and the mass of fugitive VOC that escapes from BE are measured while operating only the affected facility. All fans and blowers in the BE must be operated as they would under normal production. The capture efficiency equation to be used for this protocol is:Attached Graphic(C) The operating parameters selected for monitoring the capture system for compliance with the requirements in §115.478(a) of this title (relating to Monitoring and Recordkeeping requirements) must be monitored and recorded during the initial capture efficiency testing and thereafter during facility operation. The executive director may require a new capture efficiency test if the operating parameter values change significantly from those recorded during the initial capture efficiency test.(4) In addition to the requirements of paragraph (3) of this section, the owner or operator shall determine compliance with §115.473(a)(2) of this title by applying the following test methods, as appropriate:(A) Methods 1 - 4 (40 CFR Part 60, Appendix A) for determining flow rates, as necessary;(B) Method 25 (40 CFR Part 60, Appendix A) for determining total gaseous nonmethane organic emissions as carbon;(C) Method 25A or 25B (40 CFR Part 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis; and(D) additional performance test procedures described in 40 CFR §60.444 (as amended through October 18, 1983 (48 FR 48375)).(5) Minor modifications to the methods in paragraphs (1) - (4) of this section may be approved by the executive director. Methods other than those specified in paragraphs (1) - (4) of this section may be used if approved by the executive director and validated using Method 301 (40 CFR Part 63, Appendix A). For the purposes of this paragraph, substitute "executive director" each place that Method 301 references "administrator."</content><note type="source"><p>Source Note: The provisions of this §115.475 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.478"><num value="115.478">§115.478</num><heading>Monitoring and Recordkeeping Requirements</heading><content>(a) Monitoring requirements. The following monitoring requirements apply to the owner or operator of an application process subject to this division that uses a vapor control system in accordance with §115.473(a)(2) of this title (relating to Control Requirements). The owner or operator shall install and maintain monitors to accurately measure and record operational parameters of all required control devices, as necessary, to ensure the proper functioning of those devices in accordance with design specifications, including:(1) continuous monitoring of the exhaust gas temperature immediately downstream of direct-flame incinerators or the gas temperature immediately upstream and downstream of any catalyst bed;(2) the total amount of volatile organic compounds (VOC) recovered by carbon adsorption or other solvent recovery systems during a calendar month;(3) continuous monitoring of carbon adsorption bed exhaust; and(4) appropriate operating parameters for vapor control systems other than those specified in paragraphs (1) - (3) of this subsection.(b) Recordkeeping requirements. The following recordkeeping requirements apply to the owner or operator of an application process subject to this division.(1) The owner or operator shall maintain records of the testing data or the material safety data sheet in accordance with the requirements in §115.475(1) of this title (relating to Approved Test Methods and Testing Requirements). Records must be sufficient to demonstrate continuous compliance with the applicable VOC limits in §115.473(a), (e), or (f) of this title.(2) The owner or operator of an application process claiming an exemption in §115.471 of this title (relating to Exemptions) shall maintain records sufficient to demonstrate continuous compliance with the applicable exemption criteria.(3) The owner or operator shall maintain records of any testing conducted at an affected facility in accordance with the provisions specified in §115.475(3) and (4) of this title.(4) Records must be maintained a minimum of two years and made available upon request to authorized representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution agency with jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §115.478 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scE/s115.479"><num value="115.479">§115.479</num><heading>Compliance Schedules</heading><content>(a) In Brazoria, Chambers, Collin, Dallas, Denton, Ellis, Fort Bend, Galveston, Harris, Johnson, Kaufman, Liberty, Montgomery, Parker, Rockwall, Tarrant, Waller, and Wise Counties, the compliance date has passed and the owner or operator of an application process shall continue to comply with this division except as specified in subsections (c) and (d) of this section. (b) The owner or operator of an application process that becomes subject to this division on or after the applicable compliance date in this section shall comply with the requirements in this division no later than 60 days after becoming subject.(c) The owner or operator of an application process in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise Counties shall comply with §115.473(e) of this title (relating to Control Requirements) by no later than 270 days after the commission publishes notification in the Texas Register of its determination that this contingency rule is necessary as a result of EPA publication of a notice in the Federal Register that the specified area failed to attain the applicable National Ambient Air Quality Standard for ozone by the attainment deadline or failed to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act, §172(c)(9).(d) The owner or operator of an application process in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties shall be in compliance with §115.473(f) of this title by no later than 270 days after the commission publishes notification in the Texas Register of its determination that this contingency rule is necessary as a result of EPA publication of a notice in the Federal Register that the specified area failed to attain the applicable National Ambient Air Quality Standard for ozone by the attainment deadline or failed to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act, §172(c)(9). (e) The owner or operator of an application process in the Bexar County area subject to the requirements of this division shall comply with the requirements of this division no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §115.479 adopted to be effective December 29, 2011, 36 TexReg 8897; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c115/scF"><num value="F">SUBCHAPTER F</num><heading>MISCELLANEOUS INDUSTRIAL SOURCES</heading><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.510"><num value="115.510">§115.510</num><heading>Definitions</heading><content>The following terms, when used in this division (relating to Use of Asphalt), shall have the following meanings, unless the context clearly indicates otherwise. Additional definitions for terms used in this division are found in §115.10 of this title (relating to Definitions), §101.1 of this title (relating to Definitions), and §3.2 of this title (relating to Definitions).(1) Asphalt emulsion or emulsified asphalt--An emulsion consisting of a continuous and discontinuous phase, composed principally of a semisolid or liquid asphaltic base, water, and an emulsifying agent.(2) Conventional cutback asphalt--Any cutback asphalt which does not meet the definition of an exempt cutback asphalt.(3) Cutback asphalt--Any asphaltic cement which has been liquified by blending with petroleum solvents (diluents).(4) Exempt cutback asphalt--Any cutback asphalt which, when tested in accordance with American Society of Testing Materials Test Method D 402, "Distillation of Cutback Asphalt Products," as published in the 1997 edition of the Annual Book of ASTM Standards, shows the distillate fraction recovered up to 260 degrees Celsius (500 degrees Fahrenheit) to be less than 5.0% by volume of the total distillate recovered up to a temperature of 316 degrees Celsius (680 degrees Fahrenheit).</content><note type="source"><p>Source Note: The provisions of this §115.510 adopted to be effective August 18, 1999, 24 TexReg 6301; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.512"><num value="115.512">§115.512</num><heading>Control Requirements</heading><content>(a) The following control requirements shall apply in Nueces, Bastrop, Caldwell, Hays, Travis, and Williamson Counties and the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions).(1) The use of conventional cutback asphalt containing volatile organic compounds (VOC) solvents for the paving of roadways, driveways, or parking lots is restricted to no more than 7.0% of the total annual volume averaged over a two-year period of asphalt used by or specified for use by any state, municipal, or county agency who uses or specifies the type of asphalt application.(2) In the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas and in Bastrop, Caldwell, Hays, Travis, and Williamson Counties, no person shall allow the use, application, sale, or offering for sale of conventional cutback asphalt containing VOC solvents for paving roadways, driveways, or parking lots during the period from April 16 to September 15 of any year.(3) Except as specified in subsection (b) of this section, when asphalt emulsion is used or produced, the maximum VOC content shall not exceed 12% by weight or the following limitations, whichever is more stringent:(A) 0.5% by weight for seal coats;(B) 3.0% by weight for seal coats when unwashed aggregate is used;(C) 8.0% by weight for mixing with open graded aggregate gradations with less than 1.0% by weight of materials passing sieve number 200 adhering to the coarse aggregate fraction (1/4 inch in diameter or greater); and(D) 12% by weight for mixing with dense graded aggregate gradations when used to produce a mix designed to have 10% or less voids when fully compacted.(b) If the commission has published notice in the Texas Register, as provided in §115.519(c) or (d) of this title (relating to Counties and Compliance Schedules), to require compliance with the contingency measure control requirements for the Dallas-Fort Worth area and/or Houston-Galveston-Brazoria area, the following control requirements apply instead of subsection (a)(3) of this section.(1) In the Dallas-Fort Worth area, in accordance with the schedule specified in §115.519(c) of this title, no person shall allow the use, application, sale, or offering for sale of emulsified asphalt containing VOC solvents for paving roadways, driveways, or parking lots during the period from March 1 to November 30 of any year unless the VOC content is no more than 0.5% by volume. During the months of January, February, and December of any year the VOC content shall be no more than:(A) 0.5% by weight for seal coats;(B) 3.0% by weight for seal coats when unwashed aggregate is used;(C) 8.0% by weight for mixing with open graded aggregate gradations with less than 1.0% by weight of materials passing sieve number 200 adhering to the coarse aggregate fraction (1/4 inch in diameter or greater); and(D) 12% by weight for mixing with dense graded aggregate gradations when used to produce a mix designed to have 10% or less voids when fully compacted.(2) In the Houston-Galveston-Brazoria area, in accordance with the schedule specified in §115.519(d) of this title, no person shall allow the use, application, sale, or offering for sale of emulsified asphalt containing VOC solvents for paving roadways, driveways, or parking lots during the period from January 1 to December 31 of any year unless the VOC content is no more than 0.5% by volume.</content><note type="source"><p>Source Note: The provisions of this §115.512 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3729; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective August 18, 1999, 24 TexReg 6301; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective December 9, 2004, 29 TexReg 11360; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.513"><num value="115.513">§115.513</num><heading>Alternate Control Requirements</heading><content>Alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.</content><note type="source"><p>Source Note: The provisions of this §115.513 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective August 18, 1999, 24 TexReg 6301.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.515"><num value="115.515">§115.515</num><heading>Testing Requirements</heading><content>(a) Compliance with §115.510 and §115.512(a) of this title (relating to Definitions; and Control Requirements) shall be determined by applying the following test methods, as appropriate:(1) American Society of Testing and Materials (ASTM) Test Method D 244, "Standard Test Methods for Emulsified Asphalts, Sections 11 to 15, Residue and Oil Distillate by Distillation," for determining volatile organic compound (VOC) content of asphalt emulsions;(2) ASTM Test Method D 402, "Standard Test Method for Distillation of Cut-Back Asphaltic Products," for determining the VOC content of cutback asphalt;(3) test methods other than those specified in this section may be used if validated by 40 CFR Part 63, Appendix A, Test Method 301 and approved by the executive director; or(4) minor modifications to these test methods approved by the executive director.(b) Once triggered to meet contingency requirements, the following testing requirements apply in addition to those specified in subsection (a) of this section to determine compliance with §115.512(b) of this title (relating to Control Requirements):(1) American Association of State Highway and Transportation Officials (AASHTO) Test Method AASHTO T 59, Section 6, Residue and Oil Distillate by Distillation, or American Society of Testing and Materials (ASTM) Test Method D 244, Sections 11 to 15, Residue and Oil Distillate by Distillation for determining volatile organic compound (VOC) content by volume of emulsified asphalt;(2) test methods other than those specified in this section may be used if validated by 40 CFR Part 63, Appendix A, Test Method 301 and approved by the executive director; or(3) minor modifications to these test methods approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.515 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective August 18, 1999, 24 TexReg 6301; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.516"><num value="115.516">§115.516</num><heading>Recordkeeping Requirements</heading><content>In Nueces, Bastrop, Caldwell, Hays, Travis, and Williamson Counties and the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, any state, municipal, or county agency who uses or specifies the use of cutback asphalt or asphalt emulsion shall maintain records sufficient to document compliance with applicable restrictions and shall make such records available upon request to representatives of the executive director, EPA, or the local air pollution control agency having jurisdiction in the area.</content><note type="source"><p>Source Note: The provisions of this §115.516 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective August 18, 1999, 24 TexReg 6301; amended to be effective December 9, 2004, 29 TexReg 11360; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.517"><num value="115.517">§115.517</num><heading>Exemptions</heading><content>For persons in Nueces, Bastrop, Caldwell, Hays, Travis, and Williamson Counties and the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), the following are exempt from the provisions of §115.512(2) of this title (relating to Control Requirements):(1) asphalt concrete made with cutback asphalt, used for patching, which is stored in a long-life stockpile (longer than one-month storage); and(2) cutback asphalt used solely as a penetrating prime coat.</content><note type="source"><p>Source Note: The provisions of this §115.517 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective December 9, 2004, 29 TexReg 11360; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.519"><num value="115.519">§115.519</num><heading>Counties and Compliance Schedules</heading><content>(a) In Brazoria, Chambers, Collin, Dallas, Denton, Ellis, El Paso, Fort Bend, Galveston, Hardin, Harris, Jefferson, Johnson, Kaufman, Liberty, Montgomery, Nueces, Orange, Parker, Rockwall, Tarrant, Waller, and Wise Counties, the compliance date has passed for control requirements in 115.512(a) of this title (relating to Control Requirements) and all associated requirements, and all affected persons shall continue to comply with this division, except as specified in subsections (c) and (d) of this section. The compliance date for ozone attainment counties which have been added voluntarily to this division remain listed in §115.519(b).(b) All affected persons in Bastrop, Caldwell, Hays, Travis, and Williamson Counties shall comply with this division no later than December 31, 2005.(c) All affected persons in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise Counties shall be in compliance with the requirements of §115.512(b)(1) of this title no later than 270 days after the commission publishes notification in the Texas Register of its determination that the contingency requirements are necessary as a result of EPA publication of a notice in the Federal Register that the specified area failed to attain the applicable National Ambient Air Quality Standard for ozone by the attainment deadline or failed to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act, §172(c)(9).(d) All affected persons in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties shall be in compliance with the requirements of §115.512(b)(2) of this title no later than 270 days after the commission publishes notification in the Texas Register of its determination that the contingency requirements are necessary as a result of EPA publication of a notice in the Federal Register that the specified area failed to attain the applicable National Ambient Air Quality Standard for ozone by the attainment deadline or failed to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act. (e) All affected persons in the Bexar County area shall comply with this division no later than January 1, 2025. (f) All affected persons that become subject to this division on or after the applicable compliance date in this section shall comply with the requirements in this division no later than 60 days after becoming subject.</content><note type="source"><p>Source Note: The provisions of this §115.519 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3729; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective August 29, 2001, 26 TexReg 6303; amended to be effective December 9, 2004, 29 TexReg 11360; amended to be effective December 7, 2006, 31 TexReg 9840; amended to be effective June 25, 2015, 40 TexReg 3907; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.531"><num value="115.531">§115.531</num><heading>Emission Specifications</heading><content>(a) For the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, as defined in §115.10 of this title (relating to Definitions), the owner or operator of a synthesized pharmaceutical manufacturing facility shall satisfy the following emission specifications.(1) Reactors, distillation units, crystallizers, centrifuges, and vacuum dryers. The emission of volatile organic compounds (VOC) from these sources shall be controlled by means of surface condensers from which the condenser outlet gas temperature must not exceed the following.Attached Graphic(2) Air dryers and exhaust systems. VOC emissions from all air dryers and production equipment exhaust systems shall be reduced to not more than 33 lb/day (15 kg/day) or controlled in accordance with §115.532(a)(4) of this title (relating to Control Requirements). (3) Loading facilities. VOC emissions from truck or railcar deliveries to storage tanks at loading facilities shall be controlled in accordance with §115.532(a)(4) of this title (relating to Control Requirements).(b) For Gregg, Nueces, and Victoria Counties, the owner or operator of a synthesized pharmaceutical manufacturing facility shall satisfy the following emission specifications.(1) Reactors, distillation units, crystallizers, centrifuges, and vacuum dryers. The emission of VOC from these sources shall be controlled by means of surface condensers from which the condenser outlet gas temperature must not exceed the following.Attached Graphic(2) Air dryers and exhaust systems. VOC emissions from all air dryers and production equipment exhaust systems shall be reduced to not more than 33 lb/day (15 kg/day) or controlled in accordance with 115.532(b)(4) of this title (relating to Control Requirements).(3) Loading facilities. VOC emissions from truck or railcar deliveries to storage tanks at loading facilities shall be controlled in accordance with 115.532(b)(4) of this title (relating to be Control Requirements).</content><note type="source"><p>Source Note: The provisions of this §115.531 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.532"><num value="115.532">§115.532</num><heading>Control Requirements</heading><content>(a) For the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, the owner or operator of a synthesized pharmaceutical manufacturing facility shall provide the following specified controls.(1) Tanks.(A) All in-process tanks that contain volatile organic compounds (VOC) at any time shall be kept covered, except when production, sampling, maintenance, or inspection procedures require operator access.(B) All storage tanks that store VOC shall have pressure vacuum conservation vents installed which are set at plus or minus 0.8 inches of water (plus or minus 0.2 kPa), unless a more effective control system is used.(2) Centrifuges and filters. Centrifuges, rotary vacuum filters, and other filters having an exposed liquid surface which process liquids containing VOC shall be enclosed.(3) Leaks.(A) All liquid leaks containing VOC from a process unit or storage tank shall be repaired the first time the equipment is off-line long enough to complete the repair.(B) All liquid or gaseous leaks of VOC observed during loading operations shall be repaired immediately. Loading operations shall be discontinued until the leak is repaired.(4) Air dryers, production equipment exhaust systems, and loading facilities. Sources affected by §115.531(a) of this title (relating to Emission Specifications) shall be controlled by a system with a reduction efficiency of at least 90% of the uncontrolled emissions.(5) Pharmaceutical manufacturing facility. Any pharmaceutical manufacturing facility that becomes subject to the provisions of paragraphs (1) - (4) of this subsection by exceeding provisions of §115.537(a) of this title (relating to Exemptions) will remain subject to the provisions of this subsection, even if throughput or emissions later fall below exemption limits, unless and until emissions are reduced to no more than the controlled emissions level existing before implementation of the project by which throughput or emission rate was reduced to less than the applicable exemption limits in §115.537(a) of this title; and:(A) the project by which throughput or emission rate was reduced is authorized by any permit or permit amendment or standard permit or permit by rule required by Chapter 116 or Chapter 106 of this title (relating to Control of Air Pollution by Permit for New Construction or Modification; and Permits by Rule). If a permit by rule is available for the project, compliance with this subsection must be maintained for 30 days after the filing of documentation of compliance with that permit by rule; or(B) if authorization by permit, permit amendment, standard permit, or permit by rule is not required for the project, the owner/operator has given the executive director 30 days' notice of the project in writing.(b) For Gregg, Nueces, and Victoria Counties, the owner or operator of a synthesized pharmaceutical manufacturing facility shall provide the following specified controls.(1) Tanks.(A) All in-process tanks that contain VOC at any time shall be kept covered, except when production, sampling, maintenance, or inspection procedures require operator access.(B) All storage tanks that store VOC shall have pressure vacuum conservation vents installed which are set at plus or minus 0.8 inches of water (plus or minus 0.2 kPa), unless a more effective control system is used.(2) Centrifuges and filters. Centrifuges, rotary vacuum filters, and other filters having an exposed liquid surface which process liquids containing VOC shall be enclosed.(3) Leaks.(A) All liquid leaks containing VOC from a process unit or storage tank shall be repaired the first time the equipment is off-line long enough to complete the repair.(B) All liquid or gaseous leaks of VOC observed during loading operations shall be repaired immediately. Loading operations shall be discontinued until the leak is repaired.(4) Air dryers, production equipment exhaust systems, and loading facilities. Sources affected by §115.531(b) of this title shall be controlled by a system with a reduction efficiency of at least 90% of the uncontrolled emissions.</content><note type="source"><p>Source Note: The provisions of this §115.532 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3729; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.533"><num value="115.533">§115.533</num><heading>Alternate Control Requirements</heading><content>Alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division (relating to Pharmaceutical Manufacturing Facilities) may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.</content><note type="source"><p>Source Note: The provisions of this §115.533 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.534"><num value="115.534">§115.534</num><heading>Inspection Requirements</heading><content>(a) For all affected persons in the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, the following inspection requirements shall apply.(1) Inspection for visible liquid leaks, visible fumes, or significant odors resulting from the transfer of volatile organic compounds (VOC) from trucks or railcars to storage tanks at loading facilities shall be conducted by the owner or operator of any pharmaceutical manufacturing facility.(2) VOC loading or unloading through the affected transfer lines shall be discontinued immediately when a leak is observed and shall not be resumed until the observed leak is repaired.(b) For all affected persons in Gregg, Nueces, and Victoria Counties, the following inspection requirements shall apply.(1) Inspection for visible liquid leaks, visible fumes, or significant odors resulting from the transfer of VOC from trucks or railcars to storage tanks at loading facilities shall be conducted by the owner or operator of any pharmaceutical manufacturing facility.(2) VOC loading or unloading through the affected transfer lines shall be discontinued immediately when a leak is observed and shall not be resumed until the observed leak is repaired.</content><note type="source"><p>Source Note: The provisions of this §115.534 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.535"><num value="115.535">§115.535</num><heading>Testing Requirements</heading><content>(a) For the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, compliance with this division (relating to Pharmaceutical Manufacturing Facilities) shall be determined by applying the following test methods, as appropriate:(1) Test Methods 1-4 (40 Code of Federal Regulations (CFR) 60, Appendix A) for determining flow rate, as necessary;(2) Test Method 18 (40 CFR 60, Appendix A) for determining gaseous organic compound emissions by gas chromatography;(3) Test Method 25 (40 CFR 60, Appendix A) for determining total gaseous nonmethane organic emissions as carbon;(4) Test Methods 25A or 25B (40 CFR 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis;(5) determination of true vapor pressure using American Society of Testing and Materials (ASTM) Test Method D323-82 for the measurement of Reid vapor pressure, adjusted for actual storage temperature in accordance with API Publication 2517, Third Edition, 1989; or(6) minor modifications to these test methods approved by the executive director.(b) For Gregg, Nueces, and Victoria Counties, compliance with this division shall be determined by applying the following test methods, as appropriate:(1) Test Methods 1-4 (40 CFR 60, Appendix A) for determining flow rate, as necessary;(2) Test Method 18 (40 CFR 60, Appendix A) for determining gaseous organic compound emissions by gas chromatography;(3) Test Method 25 (40 CFR 60, Appendix A) for determining total gaseous nonmethane organic emissions as carbon;(4) Test Methods 25A or 25B (40 CFR 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis;(5) determination of true vapor pressure using ASTM Test Method D323-82 for the measurement of Reid vapor pressure, adjusted for actual storage temperature in accordance with API Publication 2517, Third Edition, 1989; or(6) minor modifications to these test methods approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.535 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.536"><num value="115.536">§115.536</num><heading>Monitoring and Recordkeeping Requirements</heading><content>(a) For the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, the following recordkeeping requirements shall apply.(1) The owner or operator of any pharmaceutical manufacturing facility which utilizes a surface condenser to control emissions of volatile organic compound (VOC) from process units affected by §115.531(a)(1) of this title (relating to Emission Specifications) shall install and maintain monitors to continuously measure and record the outlet gas temperature to ensure proper functioning in accordance with design specifications.(2) The owner or operator of any pharmaceutical manufacturing facility which utilizes a vapor recovery system to satisfy the requirements of §115.531(a) of this title (relating to Emission Specifications) or §115.532(a) of this title (relating to Control Requirements) shall:(A) install and maintain monitors to continuously measure and record operational parameters of all required control devices as necessary to ensure the proper functioning of those devices in accordance with design specifications, including:(i) the exhaust gas temperature of direct-flame incinerators and/or the gas temperature immediately upstream and downstream of any catalyst bed;(ii) the exhaust gas VOC concentration of any carbon adsorption system, as defined in §115.10 of this title (relating to Definitions), to determine if breakthrough has occurred;(iii) the total amount of VOC recovered by carbon adsorption or other solvent recovery systems during a calendar month; or(iv) the daily emission rate of VOC from the control device;(B) maintain a record of the dates and reasons for any maintenance and repair of the required control devices and the estimated quantity and duration of VOC emissions during such activities.(3) The owner or operator of any pharmaceutical manufacturing facility which is exempted from the requirements in accordance with the provisions of §115.537(a) of this title (relating to Exemptions) shall maintain a record of the following information, as appropriate:(A) the vapor pressure of materials transferred at loading facilities, stored in tanks, or processed in centrifuges and filters; and(B) the daily emissions rate of VOC.(4) The owner or operator of any affected pharmaceutical manufacturing facility shall maintain records of any testing conducted at an affected facility in accordance with the provisions specified in §115.535(a) of this title (relating to Testing Requirements).(5) The owner or operator of any affected pharmaceutical manufacturing facility shall maintain all records at the affected facility for at least two years and make such records available upon request to representatives of the executive director, United States Environmental Protection Agency (EPA), or local air pollution control agency.(b) For Gregg, Nueces, and Victoria Counties, the following recordkeeping requirements shall apply.(1) The owner or operator of any pharmaceutical manufacturing facility which utilizes a surface condenser to control emissions of VOC from process units affected by §115.531(b)(1) of this title (relating to Emission Specifications) shall install and maintain monitors to continuously measure and record the outlet gas temperature to ensure proper functioning in accordance with design specifications.(2) The owner or operator of any pharmaceutical manufacturing facility which utilizes a vapor recovery system to satisfy the requirements of §115.531(b) of this title (relating to Emission Specifications) or §115.532(b) of this title (relating to Control Requirements) shall:(A) install and maintain monitors to continuously measure and record operational parameters of all required control devices as necessary to ensure the proper functioning of those devices in accordance with design specifications, including:(i) the exhaust gas temperature of direct-flame incinerators and/or the gas temperature immediately upstream and downstream of any catalyst bed;(ii) in Victoria County, the exhaust gas VOC concentration of any carbon adsorption system, as defined in §115.10 of this title (relating to Definitions), to determine if breakthrough has occurred;(iii) the total amount of VOC recovered by carbon adsorption or other solvent recovery systems during a calendar month; or(iv) the daily emission rate of VOC from the control device;(B) maintain a record of the dates and reasons for any maintenance and repair of the required control devices and the estimated quantity and duration of VOC emissions during such activities.(3) The owner or operator of any pharmaceutical manufacturing facility which is exempted from the requirements in accordance with the provisions of §115.537(b) of this title (relating to Exemptions) shall maintain a record of the following information, as appropriate:(A) the vapor pressure of materials transferred at loading facilities, stored in tanks, or processed in centrifuges and filters; and(B) the daily emissions rate of VOC.(4) The owner or operator of any affected pharmaceutical manufacturing facility shall maintain records of any testing conducted at an affected facility in accordance with the provisions specified in §115.535(b) of this title (relating to Testing Requirements).(5) The owner or operator of any affected pharmaceutical manufacturing facility shall maintain all records at the affected facility for at least two years and make such records available upon request to representatives of the executive director, EPA, or local air pollution control agency.</content><note type="source"><p>Source Note: The provisions of this §115.536 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3729; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.537"><num value="115.537">§115.537</num><heading>Exemptions</heading><content>(a) For the Beaumont-Port Arthur, Bexar County, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, the following exemptions shall apply:(1) Storage tanks at loading facilities with capacities less than or equal to 2,000 gallons (7,571 liters) are exempt from the requirements of §115.531(a)(3) of this title (relating to Emission Specifications).(2) Storage tanks at loading facilities that store volatile organic compounds (VOC) with vapor pressures less than or equal to 4.1 psia (28 kPa) at 68 degrees Fahrenheit (20 degrees Celsius) are exempt from the requirements of §115.531(a)(3) of this title (relating to Emission Specifications).(3) Storage tanks containing VOC with vapor pressures less than or equal to 1.5 psia (10.3 kPa) at 68 degrees Fahrenheit (20 degrees Celsius) are exempt from the requirements of §115.532(a)(1)(B) of this title (relating to Control Requirements).(4) Centrifuges and filters which process liquids containing VOC with vapor pressures less than 0.5 psia (3.4 kPa) at 68 degrees Fahrenheit (20 degrees Celsius) are exempt from the requirements of §115.532(a)(2) of this title (relating to Control Requirements).(5) Any individual unit which, when uncontrolled, will emit a combined weight of VOC less than 15 lbs. (6.8 kg) in any continuous 24-hour period is exempt from the provisions of §115.531(a) and §115.532(a) of this title.(b) For Gregg, Nueces, and Victoria Counties, the following exemptions shall apply.(1) Storage tanks at loading facilities with capacities less than or equal to 2,000 gallons (7,571 liters) are exempt from the requirements of §115.531(b)(3) of this title (relating to Emission Specifications).(2) Storage tanks at loading facilities that store VOC with vapor pressures less than or equal to 4.1 psia (28 kPa) at 68 degrees Fahrenheit (20 degrees Celsius) are exempt from the requirements of §115.531(b)(3) of this title (relating to Emission Specifications).(3) Storage tanks containing VOC with vapor pressures less than or equal to 1.5 psia (10.3 kPa) at 68 degrees Fahrenheit (20 degrees Celsius) are exempt from the requirements of §115.532(b)(1)(B) of this title (relating to Control Requirements).(4) Centrifuges and filters which process liquids containing VOC with vapor pressures less than 0.5 psia (3.4 kPa) at 68 degrees Fahrenheit (20 degrees Celsius) are exempt from the requirements of §115.532(b)(2) of this title (relating to Control Requirements).(5) Any facility which, when uncontrolled, will emit a combined weight of VOC less than 550 pounds (249.5 kg) in any continuous 24-hour period is exempt from the provisions of §115.531(b) of this title (relating to Emission Specifications) and §115.532(b) of this title (relating to Control Requirements).</content><note type="source"><p>Source Note: The provisions of this §115.537 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3729; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.539"><num value="115.539">§115.539</num><heading>Counties and Compliance Schedules</heading><content>(a) All affected persons in Brazoria, Chambers, Collin, Dallas, Denton, El Paso, Fort Bend, Galveston, Gregg, Hardin, Harris, Jefferson, Liberty, Montgomery, Nueces, Orange, Tarrant, Victoria, and Waller Counties shall continue to comply with this division (relating to Pharmaceutical Manufacturing Facilities) as required by §115.930 of this title (relating to Compliance Dates).(b) All affected persons in Ellis, Johnson, Kaufman, Parker, and Rockwall Counties shall comply with this division as soon as practicable, but no later than March 1, 2009.(c) All affected persons in the Bexar County area shall comply with this division as soon as practicable, but no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §115.539 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective July 17, 1991, 16 TexReg 3729; amended to be effective August 1, 1992, 17 TexReg 4683; amended to be effective November 16, 1992, 17 TexReg 7782; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective December 7, 2006, 31 TexReg 9840; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.540"><num value="115.540">§115.540</num><heading>Applicability and Definitions</heading><content>(a) Applicability. Except as specified in §115.547 of this title (relating to Exemptions), this division applies to degassing during, or in preparation of, cleaning any storage tank, transport vessel, or marine vessel containing volatile organic compounds with a true vapor pressure greater than or equal to 0.5 pounds per square inch absolute under actual storage conditions. In this division, the operator of any storage tank, transport vessel, or marine vessel refers to the regulated entity performing or outsourcing the degassing operation.(1) In the Beaumont-Port Arthur area, as defined in §115.10 of this title (relating to Definitions), this division applies to any storage tank, transport vessel, or marine vessel.(2) In the Dallas-Fort Worth area, as defined in §115.10 of this title, this division applies to any storage tank or transport vessel in Collin, Dallas, Denton, and Tarrant Counties. This division does not apply to any tank or vessel in Ellis, Johnson, Kaufman, Parker, or Rockwall Counties.(3) In the El Paso area, as defined in §115.10 of this title, this division applies to any storage tank or transport vessel.(4) In the Houston-Galveston-Brazoria area, as defined in §115.10 of this title, this division applies to any storage tank, transport vessel, or marine vessel.(b) Definitions. Unless specifically defined in the Texas Clean Air Act (Texas Health and Safety Code, Chapter 382) or in §3.2, §101.1, or §115.10 of this title (relating to Definitions), the terms in this division have the meanings commonly used in the field of air pollution control. In addition, the following meanings apply in this division unless the context clearly indicates otherwise.(1) Cleaning--The process of washing or rinsing a storage tank, transport vessel, or marine vessel, or removing sludge or rinsing liquid from a storage tank, transport vessel, or marine vessel.(2) Degassing--The process of removing volatile organic compounds vapor from a storage tank, transport vessel, or marine vessel during, or in preparation of, cleaning.(3) Drain-dry floating roof tank--A floating roof tank designed to completely drain its entire contents to a sump in a manner that leaves no free-standing liquid in the tank or the sump.(4) Recirculation system--A vapor-tight system that is composed of piping, ductwork, connections, flow inducing devices, and a control device. The recirculation system conducts volatile organic compounds vapor from a storage tank, transport vessel, or marine vessel to a control device and conducts the exhaust from the outlet of the control device back into the same tank or vessel. The recirculation system does not include the storage tank, transport vessel, or marine vessel that is being degassed.(5) Storage capacity--The volume of a storage tank as determined by multiplying the internal cross-sectional area of the tank by the average internal height of the tank shell or the volume of a transport vessel or marine vessel as determined by the manufacturer's original design capacity.(6) Storage tank--A stationary vessel, reservoir, or container used to store volatile organic compounds. This definition does not include: components that are not directly involved in the containment of liquids or vapors; subsurface caverns or porous rock reservoirs; or process tanks or vessels.(7) Vapor-tight--A condition that exists when no component of a system has a leak greater than 500 parts per million expressed as methane measured using Method 21 (40 Code of Federal Regulations Part 60, Appendix A-7).</content><note type="source"><p>Source Note: The provisions of this §115.540 adopted to be effective February 17, 2011 36 TexReg 807.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.541"><num value="115.541">§115.541</num><heading>Emission Specifications</heading><content>(a) All volatile organic compounds (VOC) vapors from a storage tank, transport vessel, or marine vessel subject to this division must be routed to a control device in accordance with the requirements in §115.542 of this title (relating to Control Requirements) during degassing operations unless the VOC concentration, measured in accordance with the procedure described in §115.544(b)(3) of this title (relating to Inspection, Monitoring, and Testing Requirements), is less than 34,000 parts per million by volume (ppmv) expressed as methane or 50% of the lower explosive limit.(b) The intentional bypassing of a control device used to comply with this division is prohibited. Any visible VOC leak originating from the control device, or other associated product recovery device, must be repaired as soon as practical.(c) No avoidable liquid or gaseous leaks, as detected by sight or sound, may originate from the degassing operation.(d) In addition to the requirements in subsections (a) - (c) of this section, a transport vessel must be kept vapor-tight at all times until the VOC vapors are routed to a control device.(e) In addition to the requirements in subsections (a) - (c) of this section, a marine vessel must:(1) have all cargo tank closures properly secured or maintain a negative pressure within the vessel when a closure is opened; and(2) have all pressure or vacuum relief valves operating within certified limits, as specified by classification society or flag state, until the VOC vapors are routed to a control device.(f) In addition to the requirements in subsections (a) - (c) of this section, all VOC vapors from a floating roof storage tank that is not a drain-dry floating roof storage tank must be routed to a control device as soon as practical but no later than:(1) 24 hours after the tank has been emptied to the extent practical or the drain pump loses suction for a floating roof storage tank containing VOC liquids with a true vapor pressure greater than or equal to 1.5 pounds per square inch absolute (psia) under actual storage conditions;(2) 72 hours after the tank has been emptied to the extent practical or the drain pump loses suction for a floating roof storage tank containing VOC liquids with a true vapor pressure less than 1.5 psia under actual storage conditions; or(3) the time limit specified in a permit issued under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) up to a maximum of 72 hours after the tank has been emptied to the extent practical or the drain pump loses suction.</content><note type="source"><p>Source Note: The provisions of this §115.541 adopted to be effective February 17, 2011, 36 TexReg 807.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.542"><num value="115.542">§115.542</num><heading>Control Requirements</heading><content>(a) A control device used to comply with §115.541 of this title (relating to Emission Specifications) must meet one of the following conditions at all times when volatile organic compounds (VOC) vapors are routed to the device.(1) The control device must maintain a control efficiency of at least 90% and must be operated in a manner consistent with how the device was operated during the control efficiency demonstration required in §115.544(c) of this title (relating to Inspection, Monitoring, and Testing Requirements).(2) The control device must be a flare that is designed and operated in accordance with 40 Code of Federal Regulations §60.18(b) - (f) (as amended through December 22, 2008 (73 FR 78209)) and is lit at all times when VOC vapors are routed to the flare.(3) The control device must be a recirculation system that does not cause the pressure inside the tank or vessel to increase by more than one inch water pressure above atmospheric pressure at any time during the degassing operation.(4) The VOC concentration at the outlet of the control device must be less than 500 parts per million by volume (ppmv) at 0% oxygen, dry basis, expressed as methane.(b) All VOC vapors must be routed to a control device until the VOC concentration is less than 34,000 ppmv expressed as methane or less than 50% of the lower explosive limit. After one of the conditions has been satisfied, the tank or vessel may be vented to the atmosphere without control for the remainder of the degassing operation, except as specified in §115.544(b)(4) of this title.(c) Degassing equipment must be designed and operated to prevent avoidable liquid or gaseous VOC leaks.(d) When degassing is effected through the hatches or manways of a storage tank, all lines must be equipped with fittings that make vapor-tight connections.(e) When degassing is effected through the hatches of a transport vessel with a loading arm equipped with a vapor collection adapter, then pneumatic, hydraulic, or other mechanical means must be provided to force a vapor-tight seal between the adapter and the hatch. A means must be provided to minimize liquid drainage from the degassing equipment when it is removed from the hatch or to accomplish drainage before such removal.(f) When degassing is effected through the hatches of a marine vessel with a loading arm equipped with a vapor collection adapter, then pneumatic, hydraulic, or other mechanical means must be provided to force a vapor-tight seal between the adapter and the hatch, or a negative pressure inside the cargo tank must be maintained. A means must be provided to minimize liquid drainage from the degassing equipment when it is removed from the hatch or to accomplish drainage before such removal.</content><note type="source"><p>Source Note: The provisions of this §115.542 adopted to be effective February 17, 2011, 36 TexReg 807.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.543"><num value="115.543">§115.543</num><heading>Alternate Control Requirements</heading><content>For the owner or operator of a storage tank, transport vessel, or marine vessel subject to this division, alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.</content><note type="source"><p>Source Note: The provisions of this §115.543 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective June 14, 2007, 32 TexReg 3178; amended to be effective February 17, 2011, 36 TexReg 807.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.544"><num value="115.544">§115.544</num><heading>Inspection, Monitoring, and Testing Requirements</heading><content>(a) Inspection requirements. The following inspection requirements apply during the degassing of any storage tank, transport vessel, or marine vessel subject to this division.(1) Inspection for visible liquid leaks, visible fumes, or significant odors resulting from volatile organic compounds (VOC) transfer operations must be conducted during each degassing operation.(2) Degassing through the affected transfer lines must be discontinued when a leak is observed and the leak cannot be repaired within a reasonable length of time.(b) Monitoring requirements. The following monitoring requirements apply during the degassing of any storage tank, transport vessel, or marine vessel subject to this division. Monitoring at least once every 15 minutes is sufficient to demonstrate compliance with the continuous monitoring requirements in this subsection.(1) Any monitoring device used to comply with this subsection must be installed, calibrated, maintained, and operated according to the manufacturer's instructions.(2) The owner or operator shall monitor any operational parameters necessary to demonstrate the proper functioning of a control device used to comply with this division at all times when VOC vapors are routed to the device.(A) For a carbon adsorption system, the owner or operator shall continuously monitor the exhaust gas VOC concentration of any carbon adsorption system that regenerates the carbon bed directly to determine breakthrough. Alternatively, the owner or operator shall periodically monitor the exhaust gas VOC determine breakthrough and switch the exhaust gas flow to fresh carbon for any carbon adsorption system that does not regenerate the carbon bed directly, as specified by 40 Code of Federal Regulations (CFR) §61.354(d) (as amended through October 17, 2000 (65 FR 62160)), except that any monitoring must be conducted at intervals no greater than 20% of the design carbon replacement interval. For the purpose of this division, breakthrough is defined as a measured VOC concentration exceeding 100 parts per million by volume (ppmv) above background expressed as methane.(B) For a catalytic incinerator, the owner or operator shall continuously monitor the inlet and outlet gas temperature.(C) For a condensation system, the owner or operator shall continuously monitor the outlet gas temperature to ensure the temperature is below the manufacturer's recommended operating temperature for controlling the VOC vapors routed to the device.(D) For a direct-flame incinerator, the owner or operator shall continuously monitor the exhaust gas temperature immediately downstream of the device.(E) For a flare, the owner or operator shall use one of the following methods to demonstrate compliance with the requirements in 40 CFR §60.18 (as amended through December 22, 2008 (73 FR 78209)).(i) The owner or operator shall continuously monitor the net heating value of the gas stream routed to the flare.(ii) The owner or operator shall continuously monitor the total volume of supplemental fuel added to the gas stream routed to the flare and continuously maintain sufficient supplemental fuel to meet the minimum net heating value requirements in 40 CFR §60.18 assuming that the net heating value contribution from the degassed VOC vapor is equivalent to a level corresponding to 50% of the lower explosive limit (LEL). The owner or operator may estimate the volumetric flow rate from the tank or vessel for the purpose of this calculation if the flow rate of the degassed VOC vapor is not directly monitored.(iii) The owner or operator shall use calculations to demonstrate that for the material stored in the tank or vessel the net heating value of the gas stream routed to the flare cannot drop below the minimum net heating value requirements in 40 CFR §60.18 until the concentration of VOC in the vapors being routed to the flare is less than the concentration limits in §115.542(b) of this title (relating to Control Requirements).(iv) If the flare is a non-assisted flare that qualifies for the provisions in 40 CFR §60.18(c)(3)(i), the owner or operator may elect to continuously monitor the hydrogen content of the gas stream routed to the flare and continuously meet the minimum 8.0% by volume hydrogen content requirement in lieu of the requirements in clauses (i) - (iii) of this subparagraph.(F) For any control device used to comply with the optional exhaust gas concentration limit in §115.542(a)(4) of this title, the owner or operator shall monitor the exhaust gas VOC concentration within one hour after beginning the degassing operation. The VOC concentration measurement must be a one-hour test run using one of the following methods:(i) the integrated bag sampling procedure in Method 18 (40 CFR Part 60, Appendix A), §§8.2.1.1 - 8.2.1.4, and a total hydrocarbon analyzer that meets instrument and calibration specifications in Method 21; or(ii) Method 25A (40 CFR Part 60, Appendix A) to monitor the exhaust gas VOC concentration.(G) For a thermal oxidizer or vapor combustor, the owner or operator shall continuously monitor the combustion chamber temperature. If necessary to demonstrate compliance with subsection (c)(3) of this section, the owner or operator shall also continuously monitor the gas flow rate into the thermal oxidizer or vapor combustor to determine the combustion chamber residence time.(H) For a recirculation system, the owner or operator shall:(i) continuously monitor the pressure inside the tank or vessel or continuously monitor the gas flow rate at the inlet and outlet of the control device; and(ii) monitor all components of the recirculation system, including all valves and connectors, for VOC leaks using the procedure in Method 21 (40 CFR Part 60, Appendix A-7) and begin this monitoring within one hour after beginning any degassing operation. A leak is defined as a screening concentration greater than 500 ppmv above background as methane for all components.(I) For an internal combustion engine, the owner or operator shall continuously monitor the engine exhaust gas oxygen content throughout the degassing operation.(J) For a control device not listed in this paragraph, the owner or operator shall continuously monitor one or more operational parameters sufficient to demonstrate proper functioning of the control device to design specifications.(3) The owner or operator shall monitor the VOC concentration to demonstrate compliance with the VOC concentration or percent LEL thresholds in §115.542(b) of this title and determine if the storage tank, transport vessel, or marine vessel can be vented to the atmosphere without control for the remainder of the degassing operation, except as specified in paragraph (4) of this subsection. The VOC concentration must be monitored:(A) once per minute for at least five minutes and all measurements must be less than the VOC concentration limits in §115.542(b) of this title; or(B) over a five-minute period using the integrated bag sampling procedure in Method 18 (40 CFR Part 60, Appendix A) §§8.2.1.1 - 8.2.1.4 and the integrated measurement must be less than the VOC concentration limits in §115.542(b) of this title.(4) After demonstrating compliance with the applicable VOC concentration or percent LEL thresholds in §115.542(b) of this title in accordance with paragraph (3) of this subsection, the owner or operator of any storage tank, transport vessel, or marine vessel shall comply with one of the following conditions.(A) The VOC concentration inside the tank or vessel must be monitored once every 12 hours while venting to the atmosphere without control until five consecutive measurements collected at 12 hour intervals are measured to be less than 34,000 ppmv expressed as methane or less than 50% of the LEL. The VOC concentration measurement required by paragraph (3) of this subsection may be considered the first of these five consecutive measurements.(i) If venting to the atmosphere without control has been suspended for more than four hours, the VOC concentration inside the tank or vessel must be measured upon restart of the degassing operation.(ii) If any of the VOC concentration measurements equal or exceed 34,000 ppmv expressed as methane or 50% of the LEL, the tank or vessel must be routed to the control device until the VOC concentration is below 34,000 ppmv expressed as methane or less than 50% of the LEL as determined by subsection (b)(3) of this section.(iii) If the measured VOC concentration is less than 6,800 ppmv expressed as methane or 10% of the LEL then no further VOC concentration measurements are required.(B) The storage tank, transport vessel, or marine vessel can be vented to the atmosphere without control for the remainder of the degassing operation and no further VOC measurements are required if the VOC concentration inside the tank or vessel is less than 6,800 ppmv expressed as methane or 10% of the LEL before the owner or operator stops routing the VOC vapors to a control device in accordance with §115.541 of this title (relating to Emission Specifications) and §115.542 of this title.(5) Minor modifications to the monitoring methods specified in this section may be approved by the executive director. Monitoring methods other than those specified in this section may be used if approved by the executive director and validated by 40 CFR Part 63, Appendix A, Method 301.(6) The sampling location for monitoring the VOC concentration as required by subsection (b)(3) of this section should be immediately before the control device or in the transfer line connecting from the tank or vessel to the control device. The owner or operator may elect to monitor the VOC concentration at a location inside the vapor space of the tank or vessel provided the location is representative of the VOC concentration entering the control device.(c) Testing requirements. The following testing requirements apply to the owner or operator of any storage tank, transport vessel, or marine vessel subject to the requirements in this division if a control device is used to comply with the emission specifications in §115.541 of this title.(1) For a control device used to comply with the requirements in §115.542(a)(1) of this title, an initial control efficiency demonstration must be conducted in accordance with the approved test methods in §115.545 of this title (relating to Approved Test Methods) and the device must be retested after any modification that could reasonably be expected to decrease the efficiency of a control device within 60 days after the modification or before being used to comply with the requirements in §115.542(a)(1) of this title, whichever is longer.(2) For a portable control device used to comply with the requirements in §115.542(a)(1) of this title, a periodic control efficiency demonstration must be conducted at least once every 60 months in accordance with the approved test methods in §115.545 of this title.(3) For a portable thermal oxidizer or vapor combustor used to comply with the requirements in §115.542(a)(1) of this title, the periodic control efficiency demonstration in paragraph (2) of this subsection will not be required if the combustion chamber temperature is at least 1,400 degrees Fahrenheit and the flow rate of the VOC vapors routed to the device is limited to assure at least a 0.5 second combustion chamber residence time at all times when the device is in use.</content><note type="source"><p>Source Note: The provisions of this §115.544 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective June 14, 2007, 32 TexReg 3178; amended to be effective February 17, 2011, 36 TexReg 807.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.545"><num value="115.545">§115.545</num><heading>Approved Test Methods</heading><content>Compliance with the requirements in this division must be determined by applying one or more of the following test methods or procedures, as appropriate. (1) Methods 1 - 4 (40 Code of Federal Regulations (CFR) Part 60, Appendix A) must be used for determining flow rates. (2) Methods 3, 3A, or 3B (40 CFR Part 60, Appendix A) must be used to determine exhaust gas oxygen (O2 ) concentration for making any O2 corrections necessary for §115.542(a)(4) of this title (relating to Control Requirements). (3) Method 18 (40 CFR Part 60, Appendix A) must be used for determining gaseous organic compound emissions by gas chromatography. (A) If Method 18 is used to demonstrate compliance with the volatile organic compounds (VOC) concentration monitoring requirements in §115.542(b) of this title and §115.544(b)(4) of this title (relating to Inspection, Monitoring, and Testing Requirements), only one bag sample needs to be collected for each concentration measurement. (B) If Method 18 is used to demonstrate compliance with the VOC concentration monitoring requirements in §115.544(b)(2)(F) of this title for an internal combustion engine or any control device used to comply with the option in §115.542(a)(4) of this title to limit exhaust concentration, the VOC concentration must be determined by using the integrated bag sampling procedure in Method 18, §§8.2.1.1 - 8.2.1.4. (4) Method 19 (40 CFR Part 60, Appendix A) may be used for determining exhaust gas flow rates on combustion control devices in lieu of using Methods 1 - 4. (5) Method 21 (40 CFR Part 60, Appendix A-7) must be used for determining VOC leaks. An instrument meeting the specifications and calibration requirements in Method 21 may be used for demonstrating compliance with the VOC concentration monitoring requirements in §115.542(b) and §115.544(b)(3) and (4) of this title with the provision that the instrument response factor criteria in §8.1 of Method 21 may be determined using the average composition of the liquid in the tank rather than for each individual liquid. (6) Method 25 (40 CFR Part 60, Appendix A) must be used for determining total gaseous nonmethane organic emissions as carbon. (7) Methods 25A or 25B (40 CFR Part 60, Appendix A) must be used for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis. (8) Method 27 (40 CFR Part 60, Appendix A) must be used for determining tank-truck leaks. (9) A portable O2 analyzer that is calibrated, maintained, and operated according to the manufacturer's instructions may be used to determine exhaust gas O 2 concentration for making any O2 corrections necessary for §115.542(a)(4) of this title in lieu of using Methods 3, 3A, or 3B. (10) Additional test procedures described in 40 CFR §60.503(b) - (d) (effective February 14, 1989) must be used for determining compliance for bulk gasoline terminals. (11) True vapor pressure must be determined using standard reference texts or American Society for Testing and Materials Test Method D323, D2879, D4953, D5190, or D5191 for the measurement of Reid vapor pressure, adjusted for actual storage temperature in accordance with American Petroleum Institute Publication 2517, Third Edition, 1989. For the purposes of temperature correction, the owner or operator shall use the actual storage temperature. Actual storage temperature of an unheated tank or vessel may be determined using the maximum local monthly average ambient temperature as reported by the National Weather Service. Actual storage temperature of a heated tank or vessel must be determined using either the measured temperature or the temperature set point of the tank or vessel. (12) The test procedures in 40 CFR §63.565(c) or §61.304(f) must be used for determination of marine vessel vapor tightness. (13) Lower explosive limit (LEL) detectors may be used for the percent LEL concentration measurement required by §115.542(b) and §115.544(b)(3) and (4) of this title, if the detector is calibrated and maintained according to manufacturer's specifications. (14) Minor modifications to the test methods in this section may be used if approved by the executive director. (15) Test methods other than those specified in this section may be used if validated by 40 CFR Part 63, Appendix A, Test Method 301 and approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.545 adopted to be effective February 17, 2011, 36 TexReg 807.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.546"><num value="115.546">§115.546</num><heading>Recordkeeping and Notification Requirements</heading><content>(a) Recordkeeping requirements. The owner or operator of any volatile organic compounds (VOC) storage tank, transport vessel, or marine vessel subject to the requirements in this division shall maintain the following records on site for at least two years. Any records created on or after March 1, 2009, must be maintained on site for at least five years. The owner or operator shall make these records available upon request to authorized representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution control agency with jurisdiction. (1) For storage tank, transport vessel, or marine vessel degassing operations subject to the requirements in this division, the owner or operator shall maintain records of: (A) the type and number of storage tanks, transport vessels, and marine vessels that are degassed; (B) the chemical name and estimated liquid quantity of VOC contained in each storage tank, transport vessel, or marine vessel prior to degassing; (C) the chemical name and estimated liquid quantity of VOC removed from each storage tank, transport vessel, or marine vessel; (D) the VOC concentration or percent of lower explosive limit measurements required in §115.544(b)(3) of this title (relating to Inspection, Monitoring, and Testing Requirements) to determine when the storage tank, transport vessel, or marine vessel can be vented to the atmosphere without control; and (E) the VOC concentration or percent of lower explosive limit measurements required by §115.544(b)(4) of this title. (2) For a control device used to comply with the requirements in this division, the owner or operator shall maintain records of any operational parameter monitoring required in §115.544(b)(2) of this title. These records must include, but are not limited to, the following. (A) For a carbon adsorption system, the owner or operator shall maintain records of the VOC concentration measurements required by §115.544(b)(2)(A) of this title. (B) For a catalytic incinerator, the owner or operator shall maintain records of the continuous temperature monitoring required in §115.544(b)(2)(B) of this title. (C) For a condensation system, the owner or operator shall maintain records of the continuous temperature monitoring required in §115.544(b)(2)(C) of this title. (D) For a direct-flame incinerator, the owner or operator shall maintain records of the continuous temperature monitoring required in §115.544(b)(2)(D) of this title. (E) For a flare, the owner or operator shall maintain records of the continuous monitoring or calculations required in §115.544(b)(2)(E) of this title. (F) For any control device used to comply with the optional exhaust concentration limit in §115.542(a)(4) (relating to Control Requirements) of this title, the owner or operator shall maintain records of the VOC concentration measurement required in §115.544(b)(2)(F) of this title and records of the monitoring method used. (G) For a thermal oxidizer or vapor combustor, the owner or operator shall maintain records of the continuous temperature monitoring required in §115.544(b)(2)(G) of this title. If necessary to demonstrate compliance with §115.544(c)(3) of this title, the owner or operator shall maintain records of the continuous monitoring of the gas flow rate into the thermal oxidizer or vapor combustor to determine the combustion chamber residence time. (H) For a recirculation system, the owner or operator shall maintain records of the continuous pressure or flow rate monitoring required in §115.544(b)(2)(H)(i) of this title and records of the VOC leak monitoring required in §115.544(b)(2)(H)(ii) of this title, including the VOC measurements and the time the monitoring began. (I) For an internal combustion engine, the owner or operator shall maintain records of the continuous engine exhaust gas oxygen content monitoring required in §115.544(b)(2)(I) of this title. (J) For a control device not listed in this paragraph, the owner or operator shall maintain records of the continuous operational parameter monitoring required in §115.544(b)(2)(J) of this title sufficient to demonstrate proper functioning of the control device to design specifications. (3) The owner or operator shall maintain records of the results of any leak inspection and repair conducted in accordance with the requirements in §115.544(a) of this title. (4) The owner or operator shall maintain records of any control efficiency demonstration required in §115.544(c) of this title and the results of any testing conducted in accordance with the provisions specified in §115.545 of this title (relating to Approved Test Methods). The records must contain all applicable requirements from the commission's Sampling Procedures Manual, Chapter 14.0, Contents of Sampling Reports (January 2003, revision one). (5) The owner or operator shall maintain records of the manufacturer's instructions for installation, calibration, maintenance, and operation for any monitoring device used to comply with the requirements in this division. (b) Notification requirements. In the Houston-Galveston-Brazoria area, upon request by authorized representatives of the executive director, the owner or operator of any storage tank, transport vessel, or marine vessel subject to this division shall notify the appropriate regional office of upcoming degassing operations.</content><note type="source"><p>Source Note: The provisions of this §115.546 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective June 14, 2007, 32 TexReg 3178; amended to be effective February 17, 2011, 36 TexReg 807.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.547"><num value="115.547">§115.547</num><heading>Exemptions</heading><content>The following exemptions apply to the owner or operator of any storage tank, transport vessel, or marine vessel subject to this division.(1) Any storage tank with a storage capacity of less than one million gallons is exempt from this division. After January 1, 2009, in the Houston-Galveston-Brazoria area, the storage tanks listed in subparagraphs (A) and (B) of this paragraph are no longer exempt from this division.(A) Storage tanks with a storage capacity greater than or equal to 250,000 gallons but less than one million gallons.(B) Storage tanks with a storage capacity greater than or equal to 75,000 gallons but less than 250,000 gallons storing materials with true vapor pressure greater than 2.6 pounds per square inch absolute.(2) In the Beaumont-Port Arthur, Dallas-Fort Worth, El Paso, and Houston-Galveston-Brazoria areas, any transport vessel with a storage capacity of less than 8,000 gallons is exempt from this division.(3) In the Beaumont-Port Arthur and Houston-Galveston-Brazoria areas, any marine vessel with a storage capacity of less than 420,000 gallons is exempt from this division.(4) Any storage tank is exempt from this division during preventative maintenance, roof repair, primary seal inspection, or removal and installation of a secondary seal, if product is not moved in or out of the storage tank, emissions are minimized, and the repair is completed within seven calendar days.(5) Any marine vessel that has sustained damage that prevents a cargo tank's opening from being properly secured, causes the onboard vapor recovery system to be inoperative, or prevents the pressure or vacuum relief valves from operating within certified limits as specified by classification society or flag state is exempt from the requirements in §115.541 and §115.542 of this title (relating to Emission Specifications and Control Requirements); however, all reasonable measures must be taken to minimize emissions of volatile organic compounds. This exemption will only apply for 30 calendar days after the damage to the cargo tank is sustained.(6) Any oceangoing, self-propelled marine vessel is exempt from this division.</content><note type="source"><p>Source Note: The provisions of this §115.547 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective June 14, 2007, 32 TexReg 3178; amended to be effective February 17, 2011, 36 TexReg 807.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.549"><num value="115.549">§115.549</num><heading>Compliance Schedules</heading><content>(a) All affected owners or operators in Brazoria, Chambers, Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery, Orange, and Waller Counties were required to be in compliance with this division by November 15, 1996, and shall continue to comply with this division. (b) All affected owners or operators in Collin, Dallas, Denton, and Tarrant Counties shall be in compliance with this division as soon as practicable, but no later than May 21, 2011. If the installation of additional monitoring equipment is necessary to comply with the requirements in §115.544(b)(2)(E) of this title (relating to Inspection, Monitoring, and Testing Requirements), the owner or operator shall comply with the requirements no later than March 1, 2012. Until the monitoring equipment necessary to demonstrate compliance with the requirements in §115.544(b)(2)(E) of this title is installed, the owner or operator shall demonstrate compliance by using engineering calculations or other available monitoring or testing data. (c) All affected owners or operators in El Paso County shall be in compliance with this division as soon as practicable, but no later than one year, after the commission publishes notification in the Texas Register of its determination that this contingency rule is necessary as a result of failure to attain the National Ambient Air Quality Standard for ozone by the attainment deadline or failure to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act, §172(c)(9). (d) All affected owners or operators in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties shall comply with the requirements in §§115.542(b), 115.544(b)(4), and 115.546(a)(1)(E) of this title (relating to Control Requirements; Inspection, Monitoring, and Testing Requirements; and Recordkeeping and Notification Requirements) as soon as practicable but no later January 1, 2009. If the installation of additional monitoring equipment is necessary to comply with the requirements in §115.544(b)(2)(E) of this title, the owner or operator shall comply with the requirements no later than March 1, 2012. Until the monitoring equipment necessary to demonstrate compliance with the requirements in §115.544(b)(2)(E) of this title is installed, the owner or operator shall demonstrate compliance by using engineering calculations or other available monitoring or testing data.</content><note type="source"><p>Source Note: The provisions of this §115.549 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective June 14, 2007, 32 TexReg 3178; amended to be effective February 17, 2011, 36 TexReg 807.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.552"><num value="115.552">§115.552</num><heading>Control Requirements</heading><content>(a) For the Dallas/Fort Worth, El Paso, and Houston/Galveston areas as defined in §115.10 of this title (relating to Definitions), the owner or operator of any dry cleaning facility which uses petroleum-based solvents shall not operate the facility unless the following requirements are satisfied.(1) Dryers. The owner or operator of a dry cleaning facility shall either:(A) install, maintain, and operate a solvent-recovery dryer that recovers at least 85% by weight of the used petroleum solvent;(B) install, maintain, and operate a petroleum dry-to-dry dryer that recovers at least 85% by weight of the used petroleum solvent; or(C) route the exhaust air stream from the standard dryer to any other properly functioning control device which reduces the total emissions of volatile organic compounds (VOC) to the atmosphere by at least 85% by weight.(2) Filtration systems. The owner or operator of a petroleum solvent filtration system shall either:(A) install, maintain, and operate a cartridge filtration system according to the manufacturer's recommendations. The owner or operator shall drain all filter cartridges in their closed housings for at least eight hours before their removal; or(B) maintain and operate a regenerative filter or any other filtration medium according to the manufacturers' recommendations. The owner or operator shall drain the filter medium in its closed housing for at least eight hours before its removal. Upon removal, the owner or operator shall directly place the filter medium in disposable vapor tight containers or bags and shall keep these containers or bags vapor tight at all times until they are properly landfilled.(3) Fugitive emissions. The owner or operator shall ensure that:(A) there are no visual, audible, or smellable leaks from any portion of the dry cleaning equipment. Visual inspection of all equipment and system components shall be conducted at least weekly;(B) all washer and dryer traps, access doors, and other parts of the equipment where solvent may be exposed to the atmosphere are kept closed at all times except when required for proper operation or maintenance;(C) all solvent-contaminated waste materials are stored in closed containers prior to proper disposal;(D) repair of any visual, audible, or olfactory leak in any portion of the equipment shall be completed within three working days from the time the leak is detected. If necessary repair parts are not on hand, the owner or operator shall order the necessary parts within three working days and shall repair the leak no later than three working days after the parts arrive.(b) Any petroleum solvent dry cleaning facility that becomes or is currently subject to the control requirements of subsection (a) of this section by exceeding the exemption limit of §115.157 of this title (relating to Exemptions) shall remain subject to the provisions of this section, even if its consumption of petroleum solvent later falls below the exemption level, unless and until its uncontrolled solvent consumption is reduced to no more than its solvent consumption level before lifting controls; and:(1) the project by which solvent consumption was reduced is authorized by any permit or permit amendment or standard permit or permit by rule required by Chapter 116 or Chapter 106 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification; and Permits by Rule). If a permit by rule is available for the project, compliance with this subsection shall be maintained for 30 days after the filing of documentation of compliance with that permit by rule; or(2) if authorization by permit, permit amendment, standard permit, or permit by rule is not required for the project, the owner/operator has given the executive director 30 days' notice of the project in writing.</content><note type="source"><p>Source Note: The provisions of this §115.552 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.553"><num value="115.553">§115.553</num><heading>Alternate Control Requirements</heading><content>For all affected persons in the Dallas/Fort Worth, El Paso, and Houston/Galveston areas as defined in §115.10 of this title (relating to Definitions), alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this undesignated head (relating to Petroleum Dry Cleaning Systems) may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.</content><note type="source"><p>Source Note: The provisions of this §115.553 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1992, 22 TexReg 4213.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.555"><num value="115.555">§115.555</num><heading>Testing Methods and Procedures</heading><content>(a) To demonstrate initial compliance with the provisions of §115.552(a)(1)(A) of this title (relating to Control Requirements), the owner or operator of an affected facility shall perform an initial test to verify that the flow rate of recovered solvent from the recovery dryer is no greater than 1.7 fluid ounces per minute (50 milliliters per minute) at the termination of the recovery cycle. The test shall be conducted for the duration of one week during which no less than 50% of the dryer loads shall be monitored for their final recovered solvent flow rate. The location point for measuring the flow rate of recovered solvent shall be the outlet of the solvent-water separator. Near the end of the recovery cycle the entire flow of recovered solvent shall be diverted to a graduated cylinder. As the recovered solvent collects in the graduated cylinder the elapsed time is monitored and recorded in periods of greater than or equal to one minute. At the same time, the volume of solvent in the graduated cylinder is monitored and recorded to determine the volume of recovered solvent that is collected during each time period. The recovered solvent flow rate is calculated by dividing the volume of solvent collected per period by the length of time elapsed during the period and converting the results with appropriate factors into units of ounces or milliliters per minute. The recovery cycle and the monitoring procedure should continue until the flow rate of solvent is less than or equal to 1.7 fluid ounces per minute (50 milliliters per minute).(b) To demonstrate initial compliance with the provisions of §115.552(a)(1)(C) of this title (relating to Control Requirements), the owner or operator of an affected facility shall apply the following test methods, as appropriate:(1) Test Methods 1-4 (40 Code of Federal Regulations (CFR) 60, Appendix A) for determining flow rate, as necessary;(2) Test Method 18 (40 CFR 60, Appendix A) for determining gaseous organic compound emissions by gas chromatography;(3) Test Method 25 (40 CFR 60, Appendix A) for determining total gaseous non-methane organic emissions as carbon;(4) Test Methods 25A (40 CFR 60, Appendix A) for determining total gaseous organic concentrations using flame ionization or nondispersive infrared analysis; or(5) one of the above test methods with minor modifications as approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.555 adopted to be effective May 27, 1994, 19 TexReg 3703.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.556"><num value="115.556">§115.556</num><heading>Recordkeeping Requirements</heading><content>(a) For the Dallas/Fort Worth, El Paso, and Houston/Galveston areas as defined in §115.10 of this title (relating to Definitions), the owner or operator of any dry cleaning facility which uses petroleum-based solvent shall maintain records of monthly solvent consumption for at least two rolling years in a readily accessible location at the plant site. Solvent consumption of the previous consecutive 12 months shall be calculated monthly and used for determining if the exemption threshold in §115.557 of this title (relating to Exemptions) has been exceeded.(b) For the Dallas/Fort Worth, El Paso, and Houston/Galveston areas as defined in §115.10 of this title, the owner or operator of a dry cleaning facility subject to the requirements of §115.552 of this title (relating to Control Requirements) shall maintain:(1) records of the performance test required under the provisions of §115.555(a) of this title (relating to Test Methods and Procedures) if the facility elects to comply with the control requirements of §115.552(a)(1)(A) of this title;(2) documentation which demonstrates compliance with the provisions of §115.555(b) of this title if the facility elects to comply with the control requirements of §115.552(a)(1)(C) of this title.</content><note type="source"><p>Source Note: The provisions of this §115.556 adopted to be effective May 27, 1994, 19 TexReg 3703.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.557"><num value="115.557">§115.557</num><heading>Exemptions</heading><content>For the Dallas/Fort Worth, El Paso, and Houston/Galveston areas as defined in §115.10 of this title (relating to Definitions), any petroleum solvent dry cleaning facility that consumes less than 2,000 gallons of petroleum solvent per year is exempted from the requirements of §115.552(a)(1) of this title (relating to Control Requirements).</content><note type="source"><p>Source Note: The provisions of this §115.557 adopted to be effective May 27, 1994, 19 TexReg 3703.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scF/s115.559"><num value="115.559">§115.559</num><heading>Counties and Compliance Schedules</heading><content>(a) All affected petroleum solvent dry cleaning facilities in Collin, Dallas, Denton, and Tarrant Counties shall be in compliance with this division (relating to Petroleum Dry Cleaning Systems) as soon as practicable, but no later than one year, after the commission publishes notification in the Texas Register of its determination that this contingency rule is necessary as a result of failure to attain the national ambient air quality standard (NAAQS) for ozone by the attainment deadline or failure to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act, §172(c)(9). (b) All affected petroleum solvent dry cleaning facilities in El Paso County shall be in compliance with §§115.552, 115.553, and 115.555-115.557 of this title as soon as practicable, but no later than one year, after the commission publishes notification in the Texas Register of its determination that this contingency rule is necessary as a result of failure to attain the NAAQS for ozone by the attainment deadline or failure to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act, §172(c)(9). (c) All affected petroleum solvent dry cleaning facilities in Brazoria, Chambers, Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery, Orange, and Waller Counties shall be in compliance with §§115.552, 115.553, and 115.555-115.557 of this title as soon as practicable, but no later than one year, after the commission publishes notification in the Texas Register of its determination that this contingency rule is necessary as a result of failure to attain the NAAQS for ozone by the attainment deadline or failure to demonstrate reasonable further progress as set forth in the 1990 Amendments to the Federal Clean Air Act, §172(c)(9). (d) Any petroleum solvent dry cleaning facility that becomes subject to the control requirements of §115.552(a)(1) of this title by exceeding the exemption threshold as identified in §115.557 of this title shall be in compliance as soon as practicable, but no later than two years from the time the exemption level was exceeded.</content><note type="source"><p>Source Note: The provisions of this §115.559 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective May 22, 1997, 22 TexReg 4213; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c115/scG"><num value="G">SUBCHAPTER G</num><heading>CONSUMER-RELATED SOURCES</heading><section identifier="/us/state/tx/tac/t30/p1/c115/scG/s115.600"><num value="115.600">§115.600</num><heading>Consumer Products Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following terms, when used in this division (relating to Automotive Windshield Washer Fluid), shall have the following meanings, unless the context clearly indicates otherwise. Additional definitions for terms used in this division are found in §§3.2, 101.1, and 115.10 of this title (relating to Definitions). (1) Automotive windshield washer fluid--Any liquid designed for use in a motor vehicle windshield washer fluid system either as an antifreeze or for the purpose of cleaning, washing, or wetting the windshield(s). (2) Consumer--Any person who purchases or acquires any consumer product for personal, family, household, or institutional use. Persons acquiring a consumer product for resale are not considered consumers of that product. (3) Consumer product--Any substance, product, or article, held by any consumer, the use, consumption, storage, disposal, or destruction of which may result in the release of volatile organic compounds. This does not include fuels, fuel additives, motor vehicles, non-road vehicles, non-road engines, or architectural coatings. (4) Container/packaging--The part or parts of the consumer or institutional product which serve only to contain, enclose, incorporate, deliver, dispense, wrap, or store the chemically formulated substance or mixture of substances which is solely responsible for accomplishing the purposes for which the product was designed or intended. This includes any article onto or into which the principal display panel is incorporated, etched, printed, or attached. (5) Distributor--Any person to whom a consumer product is sold or supplied for the purposes of resale or distribution in commerce, except that manufacturers, retailers, and consumers are not distributors. (6) Fragrance--A substance or complex mixture of aroma chemicals, natural essential oils, and other functional components with a combined vapor pressure not in excess of two millimeters mercury at 20 degrees Celsius, which is added to a consumer product to impart an odor or scent or to counteract a malodor. (7) Initial sale--The bargain, sale, transfer, or delivery with intent to pass an interest therein, other than a lien, of a motor vehicle which has not been previously registered or licensed in Texas or elsewhere; and such a bargain, sale, transfer, or delivery, accompanied by registration or licensing of said vehicle in Texas or elsewhere, shall constitute the first sale of said vehicle, irrespective of where such bargain, sale, transfer, or delivery occurred. (8) Label--Any written, printed, or graphic matter affixed to, applied to, attached to, blown into, formed, molded into, embossed on, or appearing upon any consumer product or consumer product package, for purposes of branding, identifying, or giving information with respect to the product or to the contents of the package. (9) Manufacturer--Any person who imports, manufactures, assembles, produces, packages, repackages, or relabels a consumer product for distribution or sale in Texas. (10) Percent by weight--The total weight of volatile organic compounds (VOCs) except those VOCs exempted under §115.617 of this title (relating to Exemptions), expressed as a percentage of the total net weight of the product exclusive of the container or package as calculated according to the following equation: Attached Graphic(11) Principal display panel or panels--That part, or those parts of a label that are so designed as to most likely be displayed, presented, shown, or examined under normal and customary conditions of display or purchase. Whenever a principal display panel appears more than once, all requirements pertaining to the principal display panel shall pertain to all such principal display panels. (12) Retailer--Any person who sells, supplies, or offers consumer products for sale directly to consumers. (13) Retail outlet--Any establishment at which consumer products are sold, supplied, or offered for sale directly to consumers. (14) Subsequent sale--The bargain, sale, transfer, or delivery, with intent to pass an interest therein, other than a lien, of a motor vehicle which has been registered or licensed outside of Texas, save and except when such vehicle is not required under law to be registered or licensed in Texas or elsewhere; and any such bargain, sale, transfer, or delivery of a motor vehicle after same has been registered or licensed shall constitute a subsequent sale, irrespective of where bargain, sale, transfer, or delivery occurred. (15) Usage directions--The text or graphics on the product's label or accompanying literature which describes to the end user how and in what quantity the product is to be used.</content><note type="source"><p>Source Note: The provisions of this §115.600 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective September 20, 1998, 23 TexReg 9574; amended to be effective February 19, 2004, 29 TexReg 1365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scG/s115.610"><num value="115.610">§115.610</num><heading>Applicability</heading><content>Except as provided in §115.617 of this title (relating to Exemptions), this division (relating to Automotive Windshield Washer Fluid) shall apply to any person who sells, offers for sale, supplies, distributes, or manufactures automotive windshield washer fluid for use in the State of Texas.</content><note type="source"><p>Source Note: The provisions of this §115.610 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective February 19, 2004, 29 TexReg 1365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scG/s115.612"><num value="115.612">§115.612</num><heading>Control Requirements</heading><content>(a) Except as provided in §115.613 and §115.617 of this title (relating to Alternate Control Requirements; and Exemptions), no person shall sell, supply, offer for sale, distribute, or manufacture for use in Texas any automotive windshield washer fluid which was manufactured after January 1, 1995 and contains volatile organic compounds in excess of 23.5% by weight.(b) For automotive windshield washer fluid for which the usage directions specifically state that the product should be diluted prior to use, the limits specified in subsection (a) of this section shall apply to the product only after the minimum recommended dilution has taken place. For purposes of this subsection, the usage directions shall not include recommendations for incidental use of a concentrated product to deal with limited special applications such as extremely cold weather (below zero degrees Fahrenheit).(c) The requirements of subsection (a) of this section do not apply to automotive windshield washer fluids that are contained in motor vehicles at the time of initial sale, or at the time of subsequent sale of vehicles registered or licensed outside of Texas.</content><note type="source"><p>Source Note: The provisions of this §115.612 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective December 28, 1995, 20 TexReg 10786; amended to be effective February 19, 2004, 29 TexReg 1365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scG/s115.613"><num value="115.613">§115.613</num><heading>Alternate Control Requirements</heading><content>(a) Alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division (relating to Automotive Windshield Washer Fluid) may be approved by the executive director in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent or greater.(b) Any person who cannot comply with the requirements set forth in §115.612(a) of this title (relating to Control Requirements) because of extraordinary reasons beyond the person's reasonable control may apply in writing to the executive director for alternate control requirements.(1) The application shall set forth the following:(A) the specific grounds on which the alternate control requirements order is sought;(B) the requested terms and conditions; and(C) the specific method(s) by which compliance with the requested terms and conditions will be achieved.(2) Information submitted to the executive director by an applicant may be claimed as confidential, and if so claimed, shall be protected from public disclosure to the extent allowed under the Texas Open Records Act.(3) In considering whether to grant a deviation from §115.612(a) of this title, the executive director shall consider the facts and circumstances bearing on the reasonableness of a product's emissions, including:(A) the character and degree of injury to or interference with the public's health and physical property associated with product emissions when used for its intended purpose;(B) the product's social and economic value;(C) the technical practicability and economic reasonableness of reducing the emissions resulting from the product; and(D) the total emissions arising from use of the product.(4) Any alternate control requirements order shall specify terms and conditions, a date by which final compliance with its terms and conditions will occur, and may contain a condition that specifies increments of progress to assure timely compliance.(5) An alternate control requirements order shall cease to be effective upon failure of the party to whom the order was granted to comply with any substantive term or condition of the order.(6) If volatile organic compound standards are lowered for a product category through any subsequent rulemaking, all alternate control requirements orders granted for products in the product category shall have no force and effect as of the effective date of the modified volatile organic compound standard.</content><note type="source"><p>Source Note: The provisions of this §115.613 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective February 19, 2004, 29 TexReg 1365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scG/s115.615"><num value="115.615">§115.615</num><heading>Testing Requirements</heading><content>(a) Testing to determine compliance with the requirements of this division (relating to Automotive Windshield Washer Fluid) shall be performed using methods which are shown to accurately determine the concentration of volatile organic compounds (VOCs) in a subject product or its emissions.(b) Testing to determine compliance with the requirements of this division may alternatively be demonstrated through calculation of the VOC content from records of amounts of constituents used to manufacture the product. Compliance determination based on these records may not be used unless the manufacturer of automotive windshield washer fluid keeps accurate and updated records of production of the amount and chemical composition of the individual product constituents. These records must be kept for at least three years.</content><note type="source"><p>Source Note: The provisions of this §115.615 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective February 19, 2004, 29 TexReg 1365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scG/s115.616"><num value="115.616">§115.616</num><heading>Recordkeeping and Reporting Requirements</heading><content>(a) Each manufacturer of automotive windshield washer fluid subject to §115.612 of this title (relating to Control Requirements) shall clearly display on each container or package for any automotive windshield washer fluid regulated under this division (relating to Automotive Windshield Washer Fluid), and manufactured after January 1, 1995, one of the following:(1) the day, month, and year on which the product was manufactured;(2) a code indicating such date; or(3) a statement that the product was manufactured after a certain day, month, and year which is later than January 1, 1996.(b) If a manufacturer uses a code indicating the date of manufacture for any automotive windshield washer fluid subject to §115.612 of this title, an explanation of the code must be filed with the executive director no later than January 1, 1995.(c) Records of product volatile organic compounds content, based upon testing or chemical composition records as set forth in §115.615 of this title (relating to Testing Requirements), must be made available to the executive director within 30 days of receipt of such requests. Information submitted in response to such requests may be claimed as confidential, and if so claimed shall be protected from public disclosure to the extent allowed under the Texas Open Records Act.</content><note type="source"><p>Source Note: The provisions of this §115.616 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective August 16, 1996, 21 TexReg 7559; amended to be effective February 19, 2004, 29 TexReg 1365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scG/s115.617"><num value="115.617">§115.617</num><heading>Exemptions</heading><content>(a) This division (relating to Automotive Windshield Washer Fluid) shall not apply to any automotive windshield washer fluid manufactured in Texas for shipment and use outside of Texas.(b) The provisions of this division shall not apply to a manufacturer or distributor who sells, supplies, or offers for sale in Texas an automotive windshield washer fluid that does not comply with the volatile organic compounds (VOC) standards specified in §115.612 of this title (relating to Control Requirements), as long as the manufacturer or distributor can demonstrate that the automotive windshield washer fluid is intended for shipment and use outside of Texas, and that the manufacturer or distributor has taken reasonable prudent precautions to assure that the automotive windshield washer fluid is not distributed in Texas. This subsection does not apply to automotive windshield washer fluid that is sold, supplied, or offered for sale by any person to retail outlets in Texas.(c) The requirements of §115.612(a) of this title shall not apply to fragrances and colorants up to a combined level of 2.0% VOC by weight contained in any automotive windshield washer fluid.(d) The requirements of §115.612(a) of this title shall not apply to any VOC that:(1) contains more than 12 carbon atoms per molecule, and for which the vapor pressure is unknown; or(2) has a vapor pressure of 0.1 millimeter mercury (mm Hg) or less at 20 degrees Celsius.</content><note type="source"><p>Source Note: The provisions of this §115.617 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective March 7, 1996, 21 TexReg 1548; amended to be effective February 19, 2004, 29 TexReg 1365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scG/s115.619"><num value="115.619">§115.619</num><heading>Counties and Compliance Schedules</heading><content>All affected persons within the State of Texas shall continue to comply with the requirements of this division (relating to Automotive Windshield Washer Fluid) as required by §115.930 of this title (relating to Compliance Dates).</content><note type="source"><p>Source Note: The provisions of this §115.619 adopted to be effective May 27, 1994, 19 TexReg 3703; amended to be effective February 19, 2004, 29 TexReg 1365.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c115/scH"><num value="H">SUBCHAPTER H</num><heading>HIGHLY-REACTIVE VOLATILE ORGANIC COMPOUNDS</heading><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.720"><num value="115.720">§115.720</num><heading>Applicability and Definitions</heading><content>(a) Applicability. In the Houston/Galveston/Brazoria area, as defined in §115.10 of this title (relating to Definitions), any site with a controlled or uncontrolled vent gas stream containing highly-reactive volatile organic compounds (HRVOC), as defined in §115.10 of this title, or a flare that emits or has the potential to emit HRVOC is subject to this division (relating to Vent Gas Control) in addition to the applicable requirements of Subchapter B, Divisions 2 and 6 of this chapter (relating to Vent Gas Control; and Batch Processes) and Subchapter D, Division 1 of this chapter (relating to Process Unit Turnaround and Vacuum-Producing Systems in Petroleum Refineries).(b) Definitions. The following terms, when used in this division, have the following meanings, unless the context clearly indicates otherwise. Additional definitions for terms used in this division are found in §§3.2, 101.1, and 115.10 of this title (relating to Definitions).(1) Degassing safety device--A device other than a flare used to prevent the release of unburned organic vapors from a geologic storage facility resulting from either equipment or containment failure.(2) Supplementary fuel--Natural gas or fuel gas added to the gas stream to increase the net heating value.(3) Pilot gas--Natural gas or fuel gas that does not contain greater than 5% by weight highly-reactive volatile organic compounds that is directed to the combustion point of a flare to maintain a continuous ignition source.</content><note type="source"><p>Source Note: The provisions of this §115.720 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective December 23, 2004, 29 TexReg 11623.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.722"><num value="115.722">§115.722</num><heading>Site-wide Cap and Control Requirements</heading><content>(a) The owner or operator of a site subject to this division shall additionally comply with the requirements of Chapter 101, Subchapter H, Division 6 of this title (relating to Highly-Reactive Volatile Organic Compound Emissions Cap and Trade Program).(b) All sites subject to this division or Division 2 of this subchapter (relating to Cooling Tower Heat Exchange Systems) that are exempt from the highly-reactive volatile organic compound (HRVOC) emissions cap and trade program, in accordance with §101.392(a) of this title (relating to Exemptions), are limited to ten tons of HRVOC emissions per calendar year.(c) Each site subject to this division is subject to the following emission limitations.(1) HRVOC emissions at each site located in Harris County that is subject to this division or Division 2 of this subchapter must not exceed 1,200 pounds of HRVOC per one-hour block period from any flare, vent, pressure relief valve, cooling tower, or any combination.(2) HRVOC emissions at each site located in the Houston/Galveston/Brazoria area as defined in §115.10 of this title (relating to Definitions), excluding Harris County, that is subject to this division or Division 2 of this subchapter must not exceed 1,200 pounds of HRVOC per one-hour block period from any flare, vent, pressure relief valve, cooling tower, or any combination.(3) For any exceedance of the HRVOC emission limits specified in paragraph (1) or (2) of this subsection, the emission limits specified in paragraph (1) or (2) of this subsection must be used to determine compliance with subsection (a) or (b) of this section instead of the total amount of actual emissions.(d) All flares must continuously meet the requirements of 40 Code of Federal Regulations §60.18(c)(2) - (6) and (d) as amended through October 17, 2000 (65 FR 61744) when vent gas containing HRVOC is being routed to the flare.(1) Average net heating value over a one-hour block period will be used to demonstrate compliance with the minimum net heating value requirements.(2) The exit velocity averaged over a one-hour block period must be used to demonstrate compliance with the maximum exit velocity requirements.(e) An owner or operator may not use emission reduction credits or discrete emission reduction credits in order to demonstrate compliance with this division.</content><note type="source"><p>Source Note: The provisions of this §115.722 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg 11623.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.725"><num value="115.725">§115.725</num><heading>Monitoring and Testing Requirements</heading><content>(a) Except for pressure relief valves as defined in §115.10 of this title (relating to Definitions), each vent gas stream that is not controlled by a flare at a site must be tested by applying the appropriate reference method tests and procedures specified in §115.125 of this title (relating to Testing Requirements) to establish maximum potential highly-reactive volatile organic compound (HRVOC) hourly emission data expected during any operation not defined as an emissions event or a scheduled maintenance, startup, or shutdown activity under §101.1 of this title (relating to Definitions). The data shall be used in accordance with the test plan required under §115.726 of this title (relating to Recordkeeping and Reporting Requirements) to demonstrate compliance with the control requirement of §115.722(a) - (c) of this title (relating to Site-wide Cap and Control Requirements). For cyclic or batch processes, the HRVOC emissions shall be considered as zero during non-operational periods other than startup, shutdown, or maintenance activities.(1) For each uncontrolled vent subject to the requirements of this subsection, the owner or operator shall:(A) select an operational parameter or parameters that directly affects the HRVOC emissions from the vent;(B) install, calibrate, maintain, and operate according to manufacturer's recommendations, a continuous monitoring system to monitor and record the parameter or parameters selected under subparagraph (A) of this paragraph; and(C) establish operating limits for the selected parameter or parameters as the hourly average of the parameter or parameters during the HRVOC emission test required under this subsection.(2) For each vent subject to the requirements of this subsection that is controlled by a control device other than a flare, the owner or operator shall:(A) select an operational parameter or parameters that directly affects the HRVOC emissions directed to the control device;(B) select an operational parameter or parameters of the control device that directly affects the control efficiency of the control device;(C) install, calibrate, maintain, and operate according to manufacturer recommendations, continuous monitoring systems to monitor and record the parameters selected under subparagraphs (A) and (B) of this paragraph; and(D) establish operating limits for the selected parameters required under subparagraphs (A) and (B) of this paragraph as the hourly averages of the parameters during the HRVOC emission test required under this subsection.(3) To demonstrate compliance with the control requirements of §115.722(a) - (c) of this title during emission events and scheduled startup, shutdown, and maintenance activities, the owner or operator shall determine the HRVOC emissions from each vent using one of the following:(A) testing using the appropriate reference methods and procedures specified in this section; or(B) process knowledge and engineering calculations. If process knowledge and engineering calculations are used to determine HRVOC emissions during emission events and scheduled startup, shutdown, and maintenance activities, the monitoring plans required under paragraph (4) of this subsection must also include all process information and calculations used to calculate the HRVOC emissions.(4) The owner or operator shall develop, implement, and follow a written monitoring plan for the continuous monitoring systems required in paragraphs (1) and (2) of this subsection prior to performing the monitoring and testing under this subsection. Upon written request by the executive director, the monitoring plans shall be submitted within 30 days for review. The executive director may require additional or alternative monitoring requirements. At a minimum, monitoring plans shall include:(A) specifications for all monitors used in the continuous monitoring systems;(B) process and control device information supporting the selection of parameters;(C) actual testing or manufacturer data documenting the control efficiency of the control device; and(D) schedule of quarterly inspections of the continuous monitoring systems to insure proper operation.(5) After the initial HRVOC emission test required under this subsection, the owner or operator may perform additional emission testing to update the data used to demonstrate compliance with the control requirements of §115.722(a) - (c) of this title. Written notification of the testing must be submitted to the Houston Regional Office as specified in §115.726(a)(2) of this title.(6) Testing using the appropriate reference methods and procedures specified in §115.125 of this title that was conducted prior to December 31, 2004, may be used in lieu of conducting the testing specified in this subsection, provided that:(A) the owner or operator of the affected source obtains approval for the testing report and data from the executive director if the prior testing was not performed as a demonstration of compliance with an applicable state permit, other state rule, or federal regulation, and the test report submitted to the commission; and(B) the testing establishes maximum potential HRVOC emissions data expected during any operation that is not defined as an emissions event or a scheduled maintenance, startup, or shutdown activity under §101.1 of this title.(C) the operational parameters selected as required under paragraphs (1) or (2) of this subsection were monitored at the time of testing with a monitoring system meeting the requirements of this subsection or an equivalent monitoring system. If the prior testing meets all provisions under this paragraph and is used to satisfy the testing requirement of this subsection, then the owner or operator shall comply with the monitoring system and written monitoring plan requirements of this subsection by no later than the compliance schedule in §115.729 of this title (relating to Counties and Compliance Schedules) instead of the time required in paragraph (4) of this subsection.(7) The executive director may waive testing for no more than one-half of the vents that are identical in design and operation if the owner or operator demonstrates that all the vents are identical in design and operation, and the emissions from all of the vents can be expected to be identical.(A) The request for a waiver shall be submitted with the test plan required under §115.726(a) of this title. Information required to support the waiver request shall include, but is not limited to, the following:(i) identification of each vent expected to be identical;(ii) each specific vent to be tested;(iii) a detailed technical explanation demonstrating that the measured emissions from the selected vents can be expected to be representative of emissions from all vents;(iv) specific technical information for each vent and the process associated with each vent demonstrating that the vents and associated processes are identical in design and operation;(v) maintenance records for each vent and associated process demonstrating the vents and associated processes have been maintained in a similar manner; and(vi) any additional information or data requested by the executive director necessary to demonstrate that the emissions from the vents can be expected to be identical.(B) The executive director shall review the request for waiver and may provide a temporary waiver authorizing testing of no more than one-half of the vents. The results of the tests must be submitted to the executive director no later than 60 days after completion of testing. The executive director will determine if any further testing is required based on the review of the test results. If further testing is required, the owner or operator must perform the additional testing no later than 60 days after receiving written notification from the executive director.(C) To demonstrate compliance with the control requirements of §115.722(a) - (c) of this title, the HRVOC emission test results from the vent gas stream with the maximum HRVOC emission rate of those vents tested under this paragraph must be used for those vent gas streams for which a waiver of testing, temporary or permanent, has been authorized.(b) The following alternatives may be used in lieu of the testing requirements of subsection (a) of this section, for vent gas streams that are not controlled by a flare or are not pressure relief valves. The vent gas stream must comply with the process parameter monitoring requirements of subsection (a) of this section, except as specified in paragraph (1)(D) of this subsection.(1) The vent gas stream may be equipped with a continuous emissions monitoring system (CEMS), provided that:(A) the CEMS meets the monitoring requirements of 40 Code of Federal Regulations (CFR) §60.13(b) and (d) - (f);(B) the monitor shall initially and at a minimum quarterly thereafter be subjected to a cylinder gas audit per 40 CFR Part 60, Appendix B, Performance Specification 2, Section 16 to assess system bias and ensure accuracy;(C) the measured concentration shall be used in combination with flow rate determined in accordance with subparagraph (D) of this paragraph to determine the hourly HRVOC emission rate;(D) the following parameter monitoring requirements are used in lieu of the requirements of subsection (a)(1) or (2) of this section:(i) the owner or operator must install, calibrate, maintain, and operate according to manufacturer's recommendations, a continuous monitoring system on the vent or in the associated process systems sufficient to determine the volumetric flow; and(ii) if volumetric flow rate is not monitored directly, the owner or operator must determine through engineering calculations, manufacturer's information, or actual testing the correlation between the monitored parameter and the volumetric flow rate; and(E) the owner or operator complies with the requirements for a written monitoring plan specified in subsection (a)(4) of this section.(2) Process knowledge, including scientific calculations and other process monitoring data sufficient to demonstrate compliance status, may be used to determine maximum potential HRVOC hourly emission data. Types of vent gas streams for which process knowledge may be used in lieu of testing are:(A) analyzer vents;(B) steam system vents;(C) vent gas streams where there is no HRVOC present except during emissions events; or(D) degassing safety devices, as defined in §115.720 of this title (relating to Applicability and Definitions).(c) Affected pressure relief valves not controlled by a flare shall be monitored as follows.(1) Install, calibrate, maintain, and operate according to manufacturer's recommendations, a continuous monitoring system on the pressure relief valve or in the associated process systems sufficient to determine:(A) the time and duration of each pressure relief event;(B) the status of the pressure relief valve as either:(i) open or closed to the atmosphere; or(ii) the percentage the valve is open to the atmosphere; and(C) the volumetric flow rate during a pressure relief event.(i) If volumetric flow rate is not monitored directly, the owner or operator must determine through engineering calculations, manufacturer's information, or actual testing the correlation between the monitored parameter and the percentage the pressure relief valve is open to the atmosphere to the volumetric flow rate.(ii) If the monitoring system only indicates an open or closed status as specified in subparagraph (B)(i) of this paragraph, the owner or operator must assume the pressure relief valve is 100% open during a pressure relief event for purposes of calculating volumetric flow rate.(2) For purposes of determining compliance with the control requirement of §115.722(a) - (c) of this title during pressure relief events, the owner or operator may use process knowledge, including scientific calculations and other process monitoring data, to determine HRVOC emission rates. The volumetric flow rate determined in accordance with paragraph (1)(C) of this subsection shall be used in combination with the process knowledge to determine HRVOC emission rates.(3) The owner or operator shall develop, implement, and follow a written monitoring plan to satisfy the requirements of paragraphs (1) and (2) of this subsection. The monitoring plan must include:(A) specifications for all monitors used to satisfy the requirements of paragraphs (1) and (2) of this subsection;(B) all engineering calculations, manufacturer's information, or actual testing supporting the correlation of the monitored parameters to actual volumetric flow rate specified in paragraph (1)(C)(i) of this subsection;(C) supporting documentation of the actual testing or process knowledge used to determine HRVOC emissions as provided in paragraph (2) of this subsection;(D) at a minimum, quarterly inspections of all pressure relief valves and associated monitors to insure proper operation per the manufacturer's specifications; and(E) a list identifying all pressure relief valves in HRVOC service subject to the requirements of this subsection.(4) Upon written request by the executive director, the monitoring plan required under paragraph (3) of this subsection must be submitted within 30 days for review. The executive director may require additional or alternative monitoring requirements.(d) Except as specified in subsections (e) - (k) of this section, the owner or operator of an affected flare must conduct continuous monitoring, to demonstrate compliance with §115.722(a) - (d) of this title as follows:(1) install, calibrate, maintain, and operate a continuous flow monitoring system capable of measuring the flow rate over the full potential range of operation. The executive director may approve alternative means of determining the flare flow rate for a period of time not to exceed 1.0% of the annual operating time of the flare. The monitoring system must be capable of measuring the entire gas stream flow to the flare (i.e., all vent gas and supplemental fuel sources) and may consist of one or more flow measurements at one or more header locations. For correcting flow rate to standard conditions (defined as 68 degrees Fahrenheit and 760 millimeters of mercury (mm Hg)), temperature and pressure in the main flare header must be monitored continuously. The monitors must be calibrated to meet accuracy specifications as follows:(A) the temperature monitor must be calibrated annually to within ±2.0% at absolute temperature;(B) the pressure monitor must be calibrated annually to within ±5.0 mm Hg; and(C) the flow monitor, or velocity monitor used to determine flow rate, must be initially calibrated, prior to installation, to demonstrate accuracy to within 5.0% at flow rates equivalent to 30%, 60%, and 90% of monitor full scale. After installation, the flow monitor or velocity monitor must be calibrated annually according to manufacturer's specifications;(2) install, calibrate, maintain, and operate an on-line analyzer system capable of determining HRVOC at least once every 15 minutes. The on-line analyzer system must also be capable of measuring, at least once every 15 minutes, other potential constituents (e.g., hydrogen, nitrogen, methane, and carbon dioxide, and volatile organic compounds (VOC) other than HRVOCs) sufficient to determine the molecular weight and net heating value of the gas combusted in the flare to within 5.0%. Samples must be collected from a location on the main flare header such that the measured constituents, including any supplementary fuel, are representative of the combined gas combusted in the flare system. Net heating value of the gas combusted in the flare must be calculated according to the equation given in 40 CFR §60.18(f)(3) as amended through October 17, 2000 (65 FR 61744). The samples must be used to demonstrate continuous compliance with the requirements of §115.722(a) - (d) of this title. Pilot gas may not be included in the determination of the net heating value.(A) Calibration of the on-line analyzer shall be as follows:(i) for the HRVOC constituents, follow the procedures and requirements of Section 10.0 of 40 CFR Part 60, Appendix B, Performance Specification 9, as amended through October 17, 2000 (65 FR 61744), except that the multi-point calibration procedure in Section 10.1 of Performance Specification 9 must be performed at least once every calendar quarter instead of once every month, and the mid-level calibration check procedure in Section 10.2 of Performance Specification 9 must be performed at least once every calendar week instead of once every 24 hours. The calibration gases used for calibration procedures must be in accordance with Section 7.1 of Performance Specification 9;(ii) for the constituents monitored to determine net heating value and molecular weight, the owner or operator may elect to follow either the calibration procedures specified for HRVOC constituents in clause (i) of this subparagraph or the calibration procedures recommended by the analyzer manufacturer. If the owner or operator elects to follow manufacturer's recommended procedures:(I) those calibration procedures must include, at a minimum, single point calibration checks at least once every calendar week to meet the acceptance criteria specified in Section 10.2 of Performance Specification 9 with certified standards of the top two non-HRVOC constituents affecting molecular weight and net heating value; and(II) the owner or operator shall include in the quality assurance plan (QAP) required under §115.726(a) of this title, manufacturer's information and data to demonstrate the accuracy and reliability of the analyzer for those monitored constituents for which routine calibration checks are not performed;(iii) the range of calibration standards for the HRVOCs and other constituents may be based on the typical concentrations observed rather than the full potential range of concentrations. Data must be included in the QAP required under §115.726(a) of this title to demonstrate the accuracy of the analyzer at maximum potential concentrations outside of the proposed calibration range; and(iv) the executive director may specify additional calibration requirements during approval of the QAP under §115.726(a)(1)(B) of this title.(B) If the on-line analyzer, required in this paragraph, measures concentrations on a dry basis, the results must be corrected for moisture when determining net heating value according to the requirements in 40 CFR §60.18(f)(3) or when determining mass rates using volumetric flow rates that are on a wet basis. The following methods may be used to determine moisture for this correction:(i) a continuous moisture analyzer installed, calibrated, maintained, and operated according to the manufacturer's recommendations;(ii) assume saturated moisture conditions for the temperature and pressure at the sample extraction point in the flare header for conditions up to 20% moisture by volume;(iii) assume 0% moisture for flare systems where moisture is not expected to be present due to the process nature of the vent streams routed to the flare; or(iv) process information and engineering calculations for conditions, such as steaming operations, where moisture is expected to be greater than 20% by volume;(3) continuously operate each monitoring system as required by this section at least 95% of the time when the flare is operational, averaged over a calendar year. The percent measurement data availability must be calculated as the total flare operating hours for which valid quality-assured data was recorded divided by the total flare operating hours. Time required for normal calibration checks required under paragraphs (1) and (2) of this subsection is not considered downtime for purposes of this calculation;(4) during any period of monitor downtime of the on-line analyzer specified in paragraph (2) of this subsection exceeding eight consecutive hours, take a sample daily, starting within ten hours of the initial on-line analyzer malfunction. The sampling location must be such that the measured constituents, including any supplementary fuel, is representative of all of the major constituents going to the flare system. For determining the HRVOC concentrations in the flare header gas, the samples must be analyzed for the concentrations of HRVOC according to the procedures in 40 CFR Part 60, Appendix A, Method 18 as amended through October 17, 2000 (65 FR 61744). Samples must also be analyzed by American Standard of Testing Materials Standard D1946-77 to determine other potential constituents (e.g., hydrogen, nitrogen, methane, and carbon dioxide, and VOCs other than HRVOCs) sufficient to determine the molecular weight and net heating value of the gas combusted in the flare to within 5.0%. Net heating value of the gas combusted in the flare must be calculated according to the equation given in 40 CFR §60.18(f)(3). During periods of monitor downtime, these samples must be used to demonstrate that continuous compliance with the requirements of §115.722(a) - (d) of this title is met;(5) for each one-hour block period, calculate the average net heating value of the gas combusted in the flare according to the equation given in 40 CFR §60.18(f)(3). Pilot gas must not be included in the determination of the net heating value;(6) for each one-hour block period, calculate the average actual exit velocity of the flare based on continuous flow rate, temperature, and pressure monitor data, according to 40 CFR §60.18(f)(4); and(7) calculate the HRVOC hourly average mass emission rates from the flare using the data gathered according to paragraphs (1) - (6) of this subsection, assuming a 99% destruction efficiency for ethylene and propylene and a 98% destruction efficiency for all other HRVOCs when the flare meets the heating value and exit velocity requirements of 40 CFR §60.18. During each one-hour block period when the flare is not in compliance with the net heating value or exit velocity requirements of 40 CFR §60.18, a destruction efficiency of 93% shall be assumed to calculate HRVOC mass emission rates.(e) Flares used solely for abatement of emissions from marine loading operations or transport vessel loading and unloading operations are not required to comply with the monitoring requirements of subsection (d) of this section, provided the following specific requirements are satisfied.(1) To demonstrate compliance with the minimum net heating value requirements of §115.722(d) of this title, a calorimeter must be calibrated, installed, operated, and maintained, in accordance with manufacturer recommendations, to continuously measure and record the net heating value of the gas sent to the flare, in British thermal units/standard cubic foot of the gas.(2) The flare's actual exit velocity for each loading activity must be calculated on a one-hour block average basis, based on the maximum loading rate and the supplemental fuel rate corrected to standard temperature and pressure and the unobstructed (free) cross-sectional area of the flare tip, according to 40 CFR §60.18(f)(4) to demonstrate compliance with the exit velocity requirements of §115.722(d) of this title.(3) The HRVOC hourly average mass emission rates from the flare must be calculated to demonstrate compliance with the site-wide cap in §115.722 of this title, using total HRVOC sent to the flare calculated based on loading emission calculations, and the speciated composition of the material being sent to the flare, assuming a 99% destruction efficiency for ethylene and propylene and a 98% destruction efficiency for all other HRVOCs when the flare meets the net heating value and exit velocity requirements of 40 CFR §60.18. During each one-hour block period when the flare does not meet the net heating value or exit velocity requirements of 40 CFR §60.18, a destruction efficiency of 93% must be assumed to calculate HRVOC mass emission rates.(4) For flares that receive greater than 95% of an individual HRVOC at all times, the owner or operator may use process knowledge to determine net heating value for demonstrating compliance with §115.722(d) of this title.(f) Flares used solely for abatement of emissions from scheduled or unscheduled maintenance, startup, or shutdown activities must comply with the continuous monitoring requirements in subsection (d) of this section, or satisfy all of the following requirements.(1) A single flare must not be operated in HRVOC service for more than 720 hours at a site in any 12 consecutive months.(2) The total number of hours for which a site may send HRVOCs temporarily to multiple flares as described in this subsection must not exceed 1,440 hours in 12 consecutive months.(3) To demonstrate compliance with the minimum net heating value requirements of §115.722(d) of this title, a calorimeter must be calibrated, installed, operated, and maintained, in accordance with manufacturer recommendations, to continuously measure and record the net heating value of the gas sent to the flare, in British thermal units per standard cubic foot of the gas.(4) The flow rate of the gas routed to the flare, in standard cubic feet per minute must be determined by either:(A) complying with the monitoring requirements of subsection (d)(1) of this section; or(B) using process knowledge and engineering calculations.(5) The flare's actual exit velocity for each activity must be calculated on a one-hour block average basis, corrected to standard temperature and pressure and the unobstructed (free) cross-sectional area of the flare tip, according to 40 CFR §60.18(f)(4). The HRVOC hourly average mass emission rates from the flare must be calculated to demonstrate compliance with §115.722(a) - (c) of this title, using total HRVOC sent to the flare calculated based on process knowledge or actual measurement, assuming a 99% destruction efficiency for ethylene and propylene and a 98% destruction efficiency for all other HRVOCs when the flare meets the net heating value and exit velocity requirements of 40 CFR §60.18. During each one-hour block period when the flare does not meet the net heating value or exit velocity requirements of 40 CFR §60.18, a destruction efficiency of 93% must be assumed to calculate HRVOC mass emission rates.(6) For flares that at all times receive greater than 95% of an individual HRVOC, the owner or operator may use process knowledge to determine net heating value for demonstrating compliance with §115.722(d) of this title.(g) For an emergency flare, as defined in §115.10 of this title, subject to the requirements of this division, the owner or operator shall:(1) comply with the continuous monitoring requirements in subsection (d) of this section; or(2) use process knowledge and engineering calculations to determine compliance with the requirements of §115.722(a) - (d) of this title during an upset event. If this option is selected the owner or operator shall comply with the following:(A) for emergency flares equipped with a physical seal (e.g., a water seal) that prevents emissions from being sent to the flare except during an upset event, the owner or operator shall install, calibrate, operate, and maintain, according to manufacturer's specifications, a continuous monitoring system that:(i) monitors the status of the physical seal to ensure that emissions are not directed to the flare except during an upset event;(ii) automatically records the time and duration of each event when emissions are sent to the flare; and(iii) verifies that the physical seal has been restored after each event;(B) for emergency flares not equipped with a physical seal that prevents emissions from being sent to the flare except during an upset event, the owner or operator shall:(i) install, calibrate, operate, and maintain, according to manufacturers' specifications, a flow monitoring or indicating system to determine and record the time and duration of each event when emissions are sent to the flare; and(ii) determine through process knowledge, engineering calculations, or actual testing, the baseline flow rate from any purge/sweep gas and the minimum flow rate indicative of an upset event;(C) the owner or operator shall develop, implement, and follow a written monitoring plan to satisfy the requirements of subparagraph (A) or (B) of this paragraph. The monitoring plan must include:(i) specifications for all monitors used to satisfy the requirements of subparagraph (A) or (B) of this paragraph;(ii) the engineering calculations, process information, and actual testing used to determine volumetric flow rate, flare tip exit velocity, net heating value, and HRVOC emissions for compliance with §115.722(a) - (d) of this title; and(iii) at a minimum, quarterly inspections of the continuous monitoring system to ensure proper operation;(D) upon written request by the executive director, the monitoring plans required in accordance with subparagraph (C) of this paragraph shall be submitted within 30 days for review. The executive director may require additional or alternative monitoring requirements; and(E) the flare's actual exit velocity for each activity must be calculated on a one-hour block average basis, corrected to standard temperature and pressure and the unobstructed (free) cross-sectional area of the flare tip, according to 40 CFR §60.18(f)(4). The HRVOC hourly average mass emission rates from the flare must be calculated, using total HRVOC sent to the flare calculated based on process knowledge or actual measurement, assuming a 99% destruction efficiency for ethylene and propylene and a 98% destruction efficiency for all other HRVOCs when the flare meets the net heating value and exit velocity requirements of 40 CFR §60.18. During each one-hour block period when the flare does not meet the net heating value or exit velocity requirements of 40 CFR §60.18, a destruction efficiency of 93% must be assumed to calculate HRVOC mass emission rates.(h) Flares other than emergency flares that temporarily receive HRVOC emissions during any operation that is not a scheduled or unscheduled maintenance, startup, or shutdown activity as defined in §101.1 of this title must satisfy the following requirements.(1) The flare must not be operated in HRVOC service for more than 336 hours at the plant site in any 12 consecutive months.(2) The total number of hours for which a site may send HRVOCs temporarily to multiple flares as described in this subsection must not exceed 672 hours in 12 consecutive months.(3) In lieu of the flow monitoring requirements of subsection (d)(1) of this section, the owner or operator may use one of the following to demonstrate compliance with §115.722(a) - (d) of this title:(A) process knowledge;(B) actual measurement; or(C) for flares that temporarily receive HRVOC emissions from flare systems that are monitored in accordance with subsection (d) of this section, the flow monitoring data from the monitored flare system may be used as data substitution. Maximum one-hour average flow rate, excluding data from startups, shutdowns, maintenance, or emissions events, from the previous 30 operational days must be used to determine compliance with §115.722(a) - (d) of this title.(4) In lieu of implementing the continuous monitoring requirements specified in subsection (d) (2) of this section, the owner or operator may use one of the following to demonstrate compliance with §115.722(a) - (d) of this title:(A) for all flares in temporary HRVOC service, daily sampling in accordance with subsection (d) (4) of this section to determine net heating value and HRVOC concentrations; or(B) for flares that temporarily receive HRVOC emissions for less than 72 consecutive hours from flare systems that are monitored in accordance with subsection (d) of this section, the monitoring data from the monitored flare system may be used as data substitution to satisfy compliance with §115.722(a) - (d) of this title. Maximum one-hour average total HRVOC concentrations and minimum one-hour average net heating value, excluding data from scheduled startups, shutdowns, maintenance, or emissions events, from the previous 30 operational days shall be used to determine compliance with §115.722(a) - (d) of this title.(5) If an emissions event as defined in §101.1 of this title occurs while HRVOC emissions are being routed to a flare temporarily under this subsection, the owner or operator shall demonstrate compliance with the requirements of §115.722(a) - (d) of this title using process knowledge and engineering calculations in accordance with subsection (g)(2)(E) of this section.(i) For flares specifically designed to receive and control liquid or dual phase streams containing HRVOCs, process knowledge and engineering calculations must be used to determine compliance with the requirements of §115.722(a) - (d) of this title in accordance with subsection (g)(2)(E) of this section.(j) Flares that are used to control vent gases from metal alkyl production processes must comply with the continuous monitoring requirements in subsection (d) of this section, or satisfy the following requirements.(1) The flow rate of the gas routed to the flare, in standard cubic feet per minute, must be determined by complying with the monitoring requirements of subsection (d)(1) of this section, for demonstrating compliance with the site cap and exit velocity requirements in §115.722(a) - (d) of this title, in accordance with subsection (g)(2)(E) of this section. The owner or operator may submit a request to the executive director for alternative operational parameter monitoring in lieu of the flow monitoring specified in this paragraph for situations in which direct flow monitoring is not possible.(2) Process knowledge and engineering calculations may be used to determine net heating value and HRVOC concentrations for demonstrating compliance with §115.722(a) - (d) of this title in accordance with subsection (g)(2)(E) of this section.(k) For flares that are in multi-purpose service (e.g., an emergency flare that is also used to control emissions from emissions events and scheduled startup, shutdown, and maintenance activities), the owner or operator shall:(1) comply with all continuous monitoring requirements in subsection (d) of this section; or(2) comply with the most stringent requirements of each applicable subsection of this section. For the purposes of this paragraph:(A) only flares subject to the monitoring requirements of subsections (e), (f), or (g) of this section can be considered as multi-purpose flares;(B) the requirements of the applicable subsections that shall apply are as follows:(i) for determining minimum net heating value for demonstrating compliance with §115.722(d) of this title, the requirements in subsections (e)(1) or (f)(3) of this section apply;(ii) to determine volumetric flow rate and HRVOC emissions for demonstrating compliance with the exit velocity requirements and the site-wide cap requirements in §115.722(a) - (d) of this title, the following requirements shall apply:(I) the requirements in subsection (e)(2) and (3) of this section during any loading operation, as specified in subsection (e) of this section; and(II) the requirements in subsection (f)(4) and (5) of this section during any emissions event or scheduled startup, shutdown, or maintenance activity;(iii) for flares used for scheduled or unscheduled startup, shutdown, or maintenance activities, as specified in subsection (f) of this section, the operational time limits in subsection (f)(1) and (2) of this section apply for time periods involving those specified activities; and(iv) for flares used as emergency flares, as specified in §115.725(g), the requirements in subsection (g)(2)(A) - (D) of this section apply; and(C) multiple clauses under subparagraph (B) of this paragraph apply. For example, a flare used for emergencies and startup, shutdown, and maintenance activities is subject to subparagraph (B)(i), (ii)(II), (iii), and (iv) of this paragraph.(l) The owner or operator shall continuously operate each monitoring system as required by this section at least 95% of the operational time of the applicable flare, vent gas stream, or pressure relief valve, averaged over a calendar year. The percent measurement data availability must be calculated as the total operating hours for which valid quality-assured data was recorded divided by the total operating hours. Time required for normal calibration checks required by the provisions of this section is not considered downtime for purposes of this calculation. For the purposes of this calculation, the following apply:(1) the operational time of an affected flare is any time the flare has the potential to receive HRVOCs;(2) the operational time of an affected vent gas stream is any time the vent gas stream has the potential to emit HRVOCs; and(3) the operational time of an affected pressure relief valve is any time HRVOCs are present upstream of the pressure relief valve.(m) Minor modifications to either test methods or monitoring methods may be approved by the executive director. Test methods or monitoring methods other than those specified in this section may be used if approved by the executive director and validated by 40 CFR Part 63, Appendix A, Test Method 301 (December 29, 1992). For the purposes of this subsection, substitute "executive director" in each place that Test Method 301 references "administrator." The owner or operator does not require prior approval from the executive director for the following alternative monitoring approaches.(1) In lieu of monitoring constituents for net heating value in accordance with subsection (d) (2) of this section, the owner or operator may install an online calorimeter to determine the net heating value. The calorimeter must be calibrated, installed, operated, and maintained, in accordance with manufacturer recommendations, to continuously measure and record the net heating value of the gas sent to the flare, in British thermal units/standard cubic foot of the gas; and(2) The owner or operator may elect to demonstrate compliance with the minimum net heating value requirements of §115.722(d) of this title using the following procedure:(A) install, calibrate, operate, and maintain a continuous flow monitor to monitor the supplementary fuel used to increase the net heating value of the gas stream sent to the flare; and(B) continuously maintain sufficient supplementary fuel flow to meet the minimum net heating value requirements specified in §115.722(d) of this title while assuming zero net heating value contribution from all vent gas streams routed to the flare.(3) The owner or operator of a flare in dedicated service for storage tanks with 95% or greater of an individual HRVOC may elect to determine net heating value and HRVOC concentrations using process knowledge and engineering calculations in lieu of the on-line analyzer required in subsection (d)(2) of this section.(n) Upon written request by the executive director, the owner or operator shall submit the engineering calculations and process information used to determine volumetric flow rate, flare tip exit velocity, net heating value, and HRVOC emissions for compliance with the requirements of §115.722(a) - (d) of this title where applicable under the requirements of this section. The information must be submitted within 30 days for review.</content><note type="source"><p>Source Note: The provisions of this §115.725 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg 11623.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.726"><num value="115.726">§115.726</num><heading>Recordkeeping and Reporting Requirements</heading><content>(a) To satisfy the requirements of §115.725 of this title (relating to Monitoring and Testing Requirements), the owner or operator of each affected flare or vent gas stream shall, as applicable:(1) develop, implement, and follow a written quality assurance plan (QAP) for the monitoring requirements (including installation, calibration, operation, and maintenance of continuous emissions monitoring systems) of this division (relating to Vent Gas Control) for each flare monitored in accordance with §115.725(d) of this title.(A) The owner or operator shall maintain records on-site of the QAP and any revisions to the QAP.(B) Upon written request by the executive director, the QAP required in this paragraph shall be submitted within 30 days for review. The executive director may specify revisions to the QAP;(2) develop, implement, and follow a written test plan for flares and vent gas streams required to be tested in accordance with §115.725(a) of this title. The owner or operator must submit written notification to the Houston regional office at least 45 days prior to conducting any flare and vent gas stream testing required by §115.725(a) of this title to provide the commission opportunity to request a pretest meeting and observe the testing. The written notification must include, at a minimum, the following:(A) the proposed test date; and(B) the written test plan required by this paragraph.(b) The owner or operator of a vent gas stream subject to the requirements of §115.725(a) of this title shall comply with the following recordkeeping requirements as applicable:(1) maintain records of all testing conducted in accordance with §115.725(a) of this title to determine highly-reactive volatile organic compound (HRVOC) emission rates on a pounds-per-hour basis for each affected vent gas stream;(2) maintain hourly records of the parameter monitoring in accordance with §115.725(a)(1) or (2) of this title;(3) maintain records of the monitoring plans required under §115.725(a)(4) of this title;(4) maintain hourly records of HRVOC emission rates on a pound-per-hour basis for each affected vent gas stream monitored in accordance with §115.725(b)(1) of this title;(5) maintain records of all continuous emissions monitoring system calibrations and cylinder gas audits performed in accordance with §115.725(b)(1)(A) and (B) of this title;(6) maintain records of all process information and calculations used to determine vent gas flow rate as specified in §115.725(b)(1)(C) of this title; and(7) maintain records of all process information, actual testing, process monitoring data, and calculations used to comply with §115.725(a) of this title under the alternatives to the testing requirements in §115.725(b)(2) of this title;(c) The owner or operator of a pressure relief valve subject to the requirements of §115.725(c) of this title shall comply with the following recordkeeping requirements:(1) maintain records of the date, time, duration, volumetric flow rate, and speciated and total HRVOC emission rates on a pounds-per-hour basis for each pressure relief event;(2) maintain hourly records of the parameter monitoring in accordance with §115.725(c)(1) of this title;(3) maintain records of all process information, monitored data, and calculations used to determine volumetric flow rate and HRVOC hourly emission data as specified in §115.725(c)(2) of this title; and(4) maintain records of the monitoring plans required under §115.725(c)(3) of this title.(d) The owner or operator of a flare at a site that is subject to §115.722 of this title (relating to Site-wide Cap and Control Requirements) or the continuous monitoring requirements of §115.725 of this title shall comply with the following recordkeeping requirements:(1) maintain hourly records of the speciated and total HRVOC emission rates on a pounds-per-hour basis for each affected flare in order to demonstrate compliance with §115.722 of this title;(2) maintain records of all monitoring, testing, and calibrations performed in accordance with the provisions of §115.725 of this title;(3) maintain records on a weekly basis that detail all corrective actions made to the continuous monitoring systems during monitor downtimes, and any delay in corrective action taken by documenting the dates, reasons, and durations of such occurrences;(4) maintain records of each one-hour block average calculated net heating value of the gas stream routed to the flare and each one-hour block average calculated exit velocity at the flare tip, determined in accordance with the provisions of §115.725 of this title; and(5) for flares subject to the monitoring requirements of §115.725(e) of this title, maintain records of each loading activity including, but not limited to:(A) the nominal size of vessel being loaded;(B) the start time and the end time for each vessel loaded;(C) any compounds loaded at a concentration greater than 1% by weight, in addition to the compounds at a concentration greater than 1% by weight loaded into the vessel immediately previous to the current loading operation, if the vessel being loaded is not clean;(D) the quantity of material loaded;(E) the loading rate in gallons per minute;(F) the method of loading, such as submerged fill, bottom fill, or splash loading; and(G) all process information, monitored data, and calculations used to determine volumetric flow rate and HRVOC hourly emission data;(6) for flares used solely for the abatement of emissions from scheduled or unscheduled maintenance, startup, or shutdown activities in §115.725(f) of this title, the owner or operator shall maintain records, including, but not limited to:(A) the date, time, and duration for each flaring event;(B) the volumetric flow rate, in standard cubic feet per minute, of the gas routed to the flare recorded in 15-minute block average periods, or portion thereof, for each flaring event; and(C) all process information, monitored data, and calculations used to determine volumetric flow rate and HRVOC hourly emission data;(7) for emergency flares subject to the requirements of §115.725(g) of this title, maintain records including, but not limited to:(A) the date, time, and duration for each flaring event;(B) the volumetric flow rate, in standard cubic feet per minute, of the gas routed to the flare recorded in 15-minute block average periods, or portion thereof, for each flaring event;(C) all process information, monitored data, and calculations used to determine net heating value, volumetric flow rate, and HRVOC hourly emission data;(D) hourly records of the parameter monitoring in accordance with §115.725(g)(2)(A) or (B) of this title; and(E) records of the monitoring plans required under §115.725(g)(2)(C) of this title;(8) for flares subject to the requirements of §115.725(h) or (i) of this title, maintain records including, but not limited to:(A) the date, time, and duration for each flaring event;(B) the volumetric flow rate, in standard cubic feet per minute, of the gas routed to the flare recorded in 15-minute block average periods, or portion thereof, for each flaring event; and(C) all process information, monitored data, and calculations used to determine net heating value, volumetric flow rate, and HRVOC hourly emission data;(9) for flares subject to the requirements of §115.725(j) of this title, the owner or operator shall maintain records including, but not limited to:(A) the volumetric flow rate, in standard cubic feet per minute, of the gas routed to the flare recorded in 15-minute block average periods, or portion thereof, for each flaring event;(B) all process information, monitored data, and calculations used to determine net heating value and HRVOC hourly emission data; and(C) hourly records of parameter monitoring, if alternative parameter monitoring is approved by the executive director as specified in §115.725(j)(1)(A) of this title; and(10) for flares considered to be multi-purpose flares, as specified in §115.725(k) of this title, the owner or operator shall maintain all applicable records as required in paragraphs (5) - (7) of this subsection.(e) Records for exemptions in §115.727(a) - (e) of this title (relating to Exemptions) shall include the following.(1) The owner or operator of any site claiming exemption under §115.727(a) of this title shall maintain records to document that each vent gas stream that is routed to a flare contains less than 5.0% by weight HRVOC at all times and each vent gas stream not routed to a flare does not exceed 100 parts per million by volume HRVOC at any time.(2) The owner or operator of any flare claiming exemption under §115.727(b) of this title shall maintain records that document that the HRVOC content of the gas stream that is routed to the flare does not exceed 5.0% by weight at any time.(3) The owner or operator of any vent gas stream or flare claiming exemption under §115.727 of this title shall comply with the following recordkeeping requirements:(A) for vent gas streams, maintain records that demonstrate continuous compliance with the exemption criteria of §115.727(c) of this title; or(B) for flares, maintain records that demonstrate continuous compliance with the exemption criteria of §115.727(d) of this title.(f) The owner or operator claiming an exemption under §115.727(e) of this title shall submit written notification to the executive director no later than December 31, 2005.(g) The owner or operator of each site subject to §115.722 of this title shall maintain daily records to demonstrate compliance with the tons per calendar year emissions limits specified in §115.722(a) and (b) of this title, including:(1) cooling tower emissions from cooling towers that are subject to Division 2 of this subchapter (relating to Cooling Tower Heat Exchange Systems); and(2) all emissions from flares, vents, and pressure relief valves subject to the requirements of §115.725 of this title.(h) The owner or operator of each site subject to §115.722 of this title shall maintain hourly records to demonstrate compliance with the one-hour block emissions limits specified in §115.722(c) of this title, including:(1) cooling tower emissions from cooling towers that are subject to Division 2 of this subchapter; and(2) all emissions from flares, vents, and pressure relief valves subject to the requirements of §115.725 of this title.(i) The owner or operator shall maintain on-site, all records required in this division and other records as necessary to demonstrate continuous compliance and records of periodic measurements for at least five years and make them available for review upon request by authorized representatives of the executive director, United States Environmental Protection Agency, or any local air pollution control agency with jurisdiction.(j) The owner or operator of an affected flare, vent gas stream, or pressure relief valve subject to the requirements of this division that is reclassified as to the applicable requirements of the division or the exemption status, shall comply with the following:(1) for affected flares, vent gas streams, or pressure relief valves that become exempt from the requirements of this division, maintain records of the date that the exemption became applicable as well as the recordkeeping requirements of subsection (e) of this section; and(2) for affected flares, vent gas streams, or pressure relief valves that are reclassified as to operational status and the applicable requirements of the division (i.e., a continuous operation flare monitored in accordance with §115.725(d) of this title reclassified as an emergency flare and monitored according to §115.725(g) of this title), maintain records of the date of change in operational status and reclassification.</content><note type="source"><p>Source Note: The provisions of this §115.726 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg 11623.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.727"><num value="115.727">§115.727</num><heading>Exemptions</heading><content>(a) Any site for which all individual gas streams routed to a flare contain less than 5.0% by weight of highly-reactive volatile organic compounds (HRVOC) at all times, and all individual vent gas streams not routed to a flare contain less than 100 parts per million by volume (ppmv) HRVOC at all times, is exempt from the requirements of §115.722(a) - (c) of this title (relating to Site-wide Cap and Control Requirements).(b) For a flare that at no time receives a gas stream containing 5.0% or greater HRVOC by weight:(1) the gas stream directed to the flare shall be treated as a vent gas stream for purposes of determining compliance with §115.722(a) - (c) of this title; and(2) the flare is exempt from the continuous monitoring requirements of §115.725(d) - (k) of this title (relating to Monitoring and Testing Requirements) and §115.726(d) of this title (relating to Recordkeeping and Recording Requirements) and is therefore not required to submit a quality assurance plan under §115.726(a) of this title.(c) For vent gas streams that are not routed to a flare, the following exemptions may apply.(1) A vent gas stream that has no potential to emit HRVOCs is exempt from the requirements of this division, with the exception of the recordkeeping requirements of §115.726(e)(3)(A) of this title.(2) A vent gas stream that has the potential to emit HRVOCs, but that has an HRVOC concentration less than 100 ppmv at all times or has a maximum potential flow rate equal to or less than 100 dry standard cubic feet per hour is exempt from this division with the exception of the recordkeeping requirements of §115.726(e)(3)(A) of this title. The maximum potential HRVOC emissions for the sum of all vent gas streams claimed under this exemption, must be less for the account specified in §115.722(a) or (b) of this title than 0.5 tons per year.(3) Vent gas streams from the following sources are exempt from the requirements of this division with the exception of the recordkeeping requirements of §115.726(e)(3)(A) of this title:(A) vent gas streams resulting from the combustion of less than 5.0% by weight HRVOC in boilers, furnaces, engines, turbines, incinerators, and heaters;(B) pressure tanks that maintain working pressure sufficient at all times to prevent any vapor or gas loss to the atmosphere;(C) laboratory vent hoods;(D) instrumentation air systems;(E) atmospheric storage tanks;(F) wastewater system vents;(G) cooling towers; and(H) equipment leak fugitive components, except for vents from pressure relief valves occurring when the process pressure is sufficient to overcome the preset pressure relief point of the pressure relief valve and emissions are either released directly to the atmosphere or routed to a control device.(d) Any flare that at no time receives a total gas stream with greater than 100 ppmv HRVOC is exempt from the requirements of this division, with the exception of the recordkeeping requirements of §115.726(e)(3)(B) of this title.(e) Any flare that will be permanently out of service by April 1, 2006, is exempt from the requirements of this division, with the exception of the notification and recordkeeping requirements in §115.726(f) of this title.(f) All sites that are subject to this division and that are located in the Houston/Galveston/ Brazoria area as defined in §115.10 of this title (relating to Definitions), excluding Harris County, are exempt from §115.722(b) and (c)(2) of this title, except as provided in §115.729(a)(3) of this title (relating to Counties and Compliance Schedules).</content><note type="source"><p>Source Note: The provisions of this §115.727 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg 11623.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.729"><num value="115.729">§115.729</num><heading>Counties and Compliance Schedules</heading><content>(a) The owner or operator of each vent gas stream, pressure relief valve, and flare in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties shall demonstrate compliance with the requirements of this division (relating to Vent Gas Control) as soon as practicable, but no later than December 31, 2005, with the exception of the following:(1) §115.722(a) and (c)(2) of this title (relating to Site-wide Cap and Control Requirements) for which the owner or operator shall demonstrate compliance as soon as practicable, but not later than January 1, 2007;(2) §115.722(b) and (c)(1) of this title for which the owner or operator shall demonstrate compliance as soon as practicable, but no later than April 1, 2006; and(3) the exemption in §115.727(f) of this title (relating to Exemptions) will no longer apply upon public notice of revocation by the commission. Upon revocation of §115.727(f) of this title, sites subject to this division located in the Houston/Galveston/Brazoria area, as defined in §115.10 of this title (relating to Definitions), excluding Harris County, shall comply with paragraphs (1) and (2) of this subsection by the dates specified in those paragraphs, or within 180 days of public notice, whichever is later.(b) For vent gas streams, flares, and pressure relief valves that become subject to the requirements of this subdivision after December 31, 2005, testing and monitoring must be conducted as soon as practicable, but no later than 60 days after being brought into highly-reactive volatile organic compound service.</content><note type="source"><p>Source Note: The provisions of this §115.729 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg 11623.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.760"><num value="115.760">§115.760</num><heading>Applicability and Cooling Tower Heat Exchange System Definitions</heading><content>(a) Applicability. Any site with a cooling tower heat exchange system in the Houston/ Galveston/Brazoria area, as defined in §115.10 of this title (relating to Definitions), that emits or has the potential to emit a highly-reactive volatile organic compound, as defined in §115.10 of this title, is subject to the requirements of this division (relating to Cooling Tower Heat Exchange Systems) in addition to the applicable requirements of any other division in this subchapter or any other subchapter in this chapter.(b) Definitions. The following terms, when used in this division, have the following meanings, unless the context clearly indicates otherwise. Additional definitions for terms used in this division are found in §§3.2, 101.1, and 115.10 of this title (relating to Definitions).(1) Cooling tower heat exchange system--Cooling towers, associated heat exchangers, pumps, and ancillary equipment where water is used as a cooling medium and the heat from process fluids is transferred to cooling water. This does not include fin-fan coolers. This also does not include comfort cooling tower heat exchange systems (i.e., those used exclusively in cooling, heating, ventilation, and air conditioning systems).(2) Jacketed reactor--A heat exchange system where water is used as a cooling medium around a heavy walled reactor rather than a conventional heat exchanger tube design. For the purposes of this definition, a reactor is a device or vessel in which one or more chemicals or reactants, other than air, are combined or decomposed in such a way that the molecular structure of one or more chemicals are altered and one or more new organic compounds are formed.(3) Finite volume system--A system in which a fixed amount of highly-reactive volatile organic compounds is contained or circulated, and changes in the amount of highly-reactive volatile organic compound in the system can only occur through transfers into the system to maintain the system level, transfers out of the system for maintenance purposes, or leakage out of the system (e.g., a propylene refrigeration system).</content><note type="source"><p>Source Note: The provisions of this §115.760 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective December 23, 2004, 29 TexReg 11623.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.761"><num value="115.761">§115.761</num><heading>Site-wide Cap</heading><content>(a) The owner or operator of a site subject to this division shall additionally comply with the requirements of Chapter 101, Subchapter H, Division 6 of this title (relating to Highly-Reactive Volatile Organic Compound Emissions Cap and Trade Program).(b) All sites subject to this division or Division 1 of this subchapter (relating to Vent Gas Control) that are exempt from the highly-reactive volatile organic compound (HRVOC) emissions cap and trade program, in accordance with §101.392(a) of this title (relating to Exemptions), are limited to ten tons of HRVOC emissions per calendar year.(c) Each site subject to this division is subject to the following emission limitations.(1) HRVOC emissions at each site located in Harris County that is subject to this division or Division 1 of this subchapter must not exceed 1,200 pounds of HRVOCs per one-hour block period from any flare, vent, pressure relief valve, cooling tower, or any combination.(2) HRVOC emissions at each site located in the Houston/Galveston/Brazoria area as defined in §115.10 of this title (relating to Definitions), excluding Harris County, that is subject to this division or Division 1 of this subchapter must not exceed 1,200 pounds of HRVOCs per one-hour block period from any flare, vent, pressure relief valve, cooling tower, or any combination.(3) For any exceedance of the HRVOC emission limits specified in paragraph (1) or (2) of this subsection, the emission limits specified in paragraph (1) or (2) of this subsection must be used to determine compliance with subsection (a) or (b) of this section instead of the total amount of actual emissions.(d) An owner or operator may not use emission reduction credits or discrete emission reduction credits in order to demonstrate compliance with this division.</content><note type="source"><p>Source Note: The provisions of this §115.761 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective December 23, 2004, 29 TexReg 11623.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.764"><num value="115.764">§115.764</num><heading>Monitoring and Testing Requirements</heading><content>(a) The owner or operator of a cooling tower heat exchange system with a design capacity to circulate 8,000 gallons per minute (gpm) or greater of cooling water shall: (1) install, calibrate, operate, and maintain a continuous flow monitor on each inlet of each cooling tower. Each monitor shall be calibrated on an annual basis to within ±5.0% accuracy. When the cooling tower flow monitor is down, flow measurements shall be used for the most recent 24-hour period in which the flow measurements are representative of cooling tower operations during monitor downtime; (2) install, calibrate, operate, and maintain a system to continuously determine the total strippable volatile organic compound (VOC) concentration at each inlet of each cooling tower. The continuous monitoring system must have a minimum detection limit capability of no more than 25 parts per billion by weight (ppbw) of strippable VOC in the cooling water. The continuous monitor must be calibrated with methane or a VOC that best represents potential leakage into the cooling tower system and the emissions from the system. Calibration must be checked weekly or more frequently, as necessary, to maintain a monitor drift of less than 5.0%. During out-of-order periods of the VOC monitor(s) of 24 hours or greater, a sample must be collected for total VOC analysis according to the air-stripping method in Appendix P of the Texas Commission on Environmental Quality Sampling Procedures Manual (January 2003). This sample must be collected at least three times per calendar week, with an interval of no less than 36 hours between samples; (3) continuously operate each monitoring system as required by this section at least 95% of the time when the cooling tower is operational, averaged over a calendar year. The percent measurement data availability must be calculated as the total operating hours of the cooling tower heat exchange system for which valid quality-assured data was recorded divided by the total operating hours of the cooling tower heat exchange system. Time required for normal calibration checks required under this subsection is not considered downtime for purposes of this calculation; (4) determine the speciated strippable highly-reactive volatile organic compound (HRVOC) concentration by collecting samples from each inlet of each cooling tower at least once per month in accordance with the air-stripping method in Appendix P; (5) if the concentration of total strippable VOC is equal to or greater than 50 ppbw in the cooling tower water for more than a one-hour block of time, collect an additional sample to determine speciated and total HRVOC in accordance with the air-stripping method in Appendix P from each inlet of the affected cooling tower at least once daily, beginning on the next calendar day. The additional sampling to determine speciated and total HRVOC shall continue on a daily basis until the concentration of total strippable VOC drops below 50 ppbw; and (6) in lieu of the monitoring in paragraph (2) of this subsection and the sampling for speciation of strippable HRVOC in paragraphs (4) and (5) of this subsection, a continuous on-line monitor capable of providing total HRVOC and speciated HRVOCs in ppbw may be installed. The sampling system for the continuous on-line monitoring system must be demonstrated equivalent to the air-stripping apparatus used in Appendix P for determining strippable HRVOC concentrations in the water as specified in subsection (f) of this section. The continuous on-line monitor system must satisfy the requirements of Sections 8.3, 10, 13.1, and 13.2 of 40 Code of Federal Regulations (CFR) Part 60, Appendix B, Performance Specification 9, as amended through October 17, 2000 (65 FR 61744). The multi-point calibration procedure in Section 10.1 of Performance Specification 9 must be performed at least once every calendar quarter instead of once every month. During out-of-order periods of the on-line HRVOC monitor(s) of 24 hours or greater, sampling must be performed for total and speciated HRVOC analysis according to the air-stripping method in Appendix P. Sampling must be performed at least three times per calendar week, with an interval of no less than 36 hours between sampling times, until the continuous on-line monitor is properly operating and within the required performance specifications. (A) During out-of-order periods of the monitoring system, data should be handled as follows for purposes of recordkeeping and demonstrating compliance: (i) For each out-of-order period less than 24 hours, the maximum one-hour average HRVOC concentrations from the 24-hour period immediately prior to the out-of-order period must be used; and (ii) For each out-of-order period of 24 hours or greater, the maximum one-hour average HRVOC concentrations from the 24-hour period immediately prior to the out-of-order period must be used for the time period from the initial outage of the monitoring system to time of collection of the first manual sample required by this paragraph. The results of each manual sample must be used for the time period from collection of that sample to the collection of the subsequent sample, or to the time that the continuous monitoring system is on-line and within the required performance specifications. (B) For periods that only the analyzer system is out of order and the sampling system (i.e., HRVOC sparging or stripping system) is still functioning within normal specifications, the owner or operator may elect to collect the manual samples required by this paragraph using the sampling system of the continuous HRVOC monitoring system. (b) The owner or operator of a cooling tower heat exchange system with a design capacity to circulate less than 8,000 gpm of cooling water or a cooling tower heat exchange system in dedicated service to a jacketed reactor, as defined in §115.760(b) of this title (relating to Applicability and Cooling Tower Heat Exchange System Definitions), shall: (1) install, calibrate, operate, and maintain a continuous flow monitor on each inlet of each cooling tower. Each monitor must be calibrated on an annual basis to within ±5.0% accuracy. When the cooling tower flow monitor is down, flow measurements must be used for the most recent 24-hour period in which the flow measurements are representative of cooling tower operations during monitor downtime; (2) determine the total strippable VOC concentration by collecting samples from each inlet of each cooling tower at least twice per week in accordance with the air-stripping method in Appendix P with an interval of not less than 48 hours between samples; (3) operate each monitoring system as required by this section at least 95% of the time when the cooling tower is operational, averaged over a calendar year. The percent measurement data availability must be calculated as the total operating hours of the cooling tower heat exchange system for which valid quality-assured data was recorded divided by the total operating hours of the cooling tower heat exchange system. Time required for normal calibration checks required under this subsection is not considered downtime for purposes of this calculation; (4) determine the speciated strippable HRVOC concentration by collecting samples from each inlet of each cooling tower at least once per month in accordance with the air-stripping method in Appendix P; (5) if the concentration of total strippable VOC is equal to or greater than 50 ppbw in the cooling tower water, collect an additional sample to determine total strippable VOC, speciated HRVOC, and total HRVOC from each inlet of the affected cooling tower at least once daily, beginning on the next calendar day, in accordance with the air-stripping method in Appendix P. The additional sampling to determine total strippable VOC, speciated HRVOC, and total HRVOC must continue on a daily basis until the concentration of total strippable VOC drops below 50 ppbw; and (6) in lieu of the monitoring in paragraph (2) of this subsection and the sampling for speciation of strippable HRVOC in paragraphs (4) and (5) of this subsection, a continuous on-line monitor capable of providing total HRVOC and speciated HRVOCs in ppbw may be installed. The sampling system for the continuous on-line monitoring system must be demonstrated equivalent to the air-stripping apparatus used in Appendix P for determining strippable HRVOC concentrations in the water as specified in subsection (f) of this section. The continuous on-line monitor system must satisfy the requirements of Sections 8.3, 10, 13.1, and 13.2 of 40 CFR Part 60, Appendix B, Performance Specification 9. The multi-point calibration procedure in Section 10.1 of Performance Specification 9 must be performed at least once every calendar quarter instead of once every month. During out-of-order periods of the on-line HRVOC monitor(s) of 24 hours or greater, sampling must be performed for total and speciated HRVOC analysis according to the air-stripping method in Appendix P. Sampling must be performed at least twice per calendar week, with an interval of no less than 72 hours between sampling times, until the continuous on-line monitor is properly operating and within the required performance specifications. (A) During out-of-order periods of the monitoring system, data should be handled as follows for purposes of recordkeeping and demonstrating compliance. (i) For each out-of-order period less than 24 hours, the maximum one-hour average HRVOC concentrations from the 24-hour period immediately prior to the out-of-order period must be used. (ii) For each out-of-order period of 24 hours or greater, the maximum one-hour average HRVOC concentrations from the 24-hour period immediately prior to the out-of-order period must be used for the time period from the initial outage of the monitoring system to time of collection of the first manual sample required by this paragraph. The results of each manual sample must be used for the time period from collection of that sample to the collection of the subsequent sample, or to the time that the continuous monitoring system is on-line and within the required performance specifications. (B) For periods that only the analyzer system is out of order and the sampling system (i.e., HRVOC sparging or stripping system) is still functioning within normal specifications, the owner or operator may elect to collect the manual samples required by this paragraph using the sampling system of the continuous HRVOC monitoring system. (c) When periodic sampling is required, the owner or operator of the cooling tower heat exchange system shall determine the speciated HRVOC concentration as soon as this information is available, but no later than seven days after the sample(s) have been collected. Samples collected in a TedlarTM bag must be analyzed no later than 72 hours after the samples have been collected. The samples must be analyzed according to the procedures in Test Method 18, 40 CFR Part 60, Appendix A, and/or Method TO-14A, published in "U.S. EPA Compendium for Determination of Toxic Organic Compounds in Ambient Air (1996)," United States Environmental Protection Agency Document Number 625/R96/010B. (d) In lieu of subsections (a)(2) - (5) and (b)(2) - (5) of this section, the owner or operator of cooling tower heat exchange systems in which no individual heat exchanger has 5.0% or greater HRVOC in the process-side fluid, shall determine total strippable VOC and the HRVOC concentration in the cooling tower water at least once per month, with an interval of not less than 20 days between samples, according to the air-stripping method in Appendix P. If the total strippable VOC concentration in the cooling tower water is 50 ppbw or greater, the owner or operator shall determine the total strippable VOC weekly and the HRVOC concentration weekly. The additional sampling for the total strippable VOC concentration and HRVOC concentration continue until the total strippable VOC concentration drops below 50 ppbw. (e) In lieu of using a continuous flow monitor as described in subsections (a)(1) and (b)(1) of this section, the owner or operator of a cooling tower heat exchange system may: (1) use the maximum potential flow rate based on manufacturer's pump performance data, assuming no back pressure; or (2) install, calibrate, operate, and maintain, in accordance with the manufacturer's recommendations, a monitor to continuously measure and record each cooling water pump discharge pressure to establish the total dynamic head of the cooling water system. The owner or operator of the cooling water system must establish, use, and demonstrate in the QAP required in §115.766(i) of this title (relating to Recordkeeping and Reporting Requirements, a calculation methodology that will provide, on a continuous basis, the cooling water circulation flow rate (in gpm) based on the following: cooling water discharge pressure for each pump; the manufacturer's certified pump performance data; and the number of pumps in operation. This calculated flow rate will then be used to determine the hourly emission rate in pounds per hour, as required by §115.766(a)(3) of this title. (f) Minor modifications to the monitoring and testing methods in this section may be approved by the executive director. Monitoring and testing methods other than those specified in this section may be used if approved by the executive director and validated by 40 CFR Part 63, Appendix A, Test Method 301 (December 29, 1992). For the purposes of this subsection, substitute "executive director" in each place that Test Method 301 references "administrator." (g) In lieu of using the monitor location described in subsections (a), (b), and (h) of this section: (1) the owner or operator of cooling tower heat exchange systems in which a single cooling tower services both HRVOC and non-HRVOC process units, or a single cooling tower that services multiple types of heat exchange systems (i.e., jacketed reactor or finite volume system), may: (A) install a flow monitor or monitors, meeting the requirements of subsections (a)(1) and (b)(1) of this section at a point that represents the flow of cooling water from only the HRVOC-containing process units; and (B) monitor the total strippable VOC or HRVOC concentration, in accordance with subsection (a), (b), (d), or (h) of this section at a point leaving the HRVOC-containing process unit and prior to mixing with cooling tower water from other units; or (2) the owner or operator of cooling tower heat exchange systems may elect to monitor cooling water flow rate at a location that is representative of the total flow rate to the cooling tower.(h) In lieu of the requirements of subsection (a) of this section, the owner or operator of a cooling tower heat exchange system in dedicated service to a finite volume system, as defined in §115.760(b) of this title, with HRVOC and with a design capacity to circulate 8,000 gallons gpm or greater of cooling water may elect to comply with the following requirements: (1) install, calibrate, operate, and maintain a continuous flow monitor on each inlet of each cooling tower. Each monitor must be calibrated on an annual basis to within ±5.0% accuracy. When the cooling tower flow monitor is down, flow measurements must be used for the most recent 24-hour period in which the flow measurements are representative of cooling tower operations during monitor downtime; (2) determine the speciated strippable HRVOC concentration by collecting samples from each inlet of each cooling tower at least once per month in accordance with the air-stripping method in Appendix P; (3) determine the total strippable VOC concentration by collecting samples from each inlet of each cooling tower at least twice per week in accordance with the air-stripping method in Appendix P with an interval of not less than 48 hours between samples; (4) if the concentration of total strippable VOC is equal to or greater than 50 ppbw in the cooling tower water, collect an additional sample to determine total strippable VOC, speciated HRVOC, and total HRVOC from each inlet of the affected cooling tower at least once daily in accordance with the air-stripping method in Appendix P. The additional sampling to determine total strippable VOC, speciated HRVOC, and total HRVOC must continue on a daily basis until the concentration of total strippable VOC drops below 50 ppbw; (5) install, calibrate, operate, and maintain a continuous monitoring system to monitor the inventory level of the HRVOC in the finite volume system; (6) develop, implement, and follow a written monitoring plan to satisfy the requirements of paragraph (5) of this subsection. The monitoring plan must include: (A) specifications for all monitors used to satisfy the requirements of paragraph (5) of this subsection; (B) the normal hourly variation in the inventory level for the continuous monitoring system; (C) all process information, design specifications, and engineering calculations, used to establish the normal hourly variation in the inventory level; and (D) at a minimum, quarterly inspections of the continuous monitoring system to ensure proper operation; (7) if the hourly inventory level monitored in accordance with paragraphs (5) and (6) of this subsection is not within the normal hourly variation in the inventory level established as required in paragraph (5) of this subsection, except during maintenance activities, then the owner or operator must perform sampling for total strippable VOC as specified in paragraph (3) of this subsection within 24 hours. If the concentration of total strippable VOC is equal to or greater than 50 ppbw in the cooling tower water, then the owner or operator shall perform daily sampling to determine total strippable VOC, speciated HRVOC, and total HRVOC in accordance with paragraph (4) of this subsection until the concentration of total strippable VOC drops below 50 ppbw; and(8) upon written request by the executive director, the monitoring plan required in accordance with paragraph (6) of this subsection must be submitted within 30 days for review. The executive director may require additional or alternative monitoring requirements.</content><note type="source"><p>Source Note: The provisions of this §115.764 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg 11623.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.766"><num value="115.766">§115.766</num><heading>Recordkeeping and Reporting Requirements</heading><content>(a) The owner or operator of any cooling tower heat exchange system subject to §115.761 of this title (relating to Site-wide Cap) shall comply with the following recordkeeping requirements:(1) establish and maintain a process diagram of the cooling tower heat exchange system, including the locations at which the system will be monitored and sampled such that the cooling water is not exposed to the atmosphere prior to sampling;(2) maintain records of all monitoring, testing, and calibrations performed in accordance with the provisions of §115.764 of this title (relating to Monitoring and Testing Requirements);(3) maintain hourly records that document the emission rate in pounds per hour (lb/hr) for each hour for speciated highly-reactive volatile organic compounds (HRVOC) and total HRVOC from the cooling water for each cooling tower heat exchange system as required by §115.764(a), (b), (d), or (h) of this title. The flow rate of the cooling water in conjunction with the most recently monitored concentration of the speciated HRVOC or total HRVOC in the cooling tower water, shall be used to calculate the respective emission rate in lb/hr. If the concentration results of the speciated HRVOC or total HRVOC analyses are below the minimum detection limit (i.e., non-detected), then half the detection limit(s) must be used to calculate HRVOC emissions;(4) maintain hourly records of the total strippable VOC concentration in the cooling water for cooling tower heat exchanger systems monitored in accordance with §115.764(a)(2) of this title, and maintain records of each test for total strippable VOC concentration performed in accordance with §115.764(b)(2), (d), or (h) of this title. If the concentration results of the total strippable VOC testing or monitoring are below the minimum detection limit, then one-half the detection limit must be used to calculate average total strippable VOC concentration;(5) maintain hourly records of the cooling water flow rate;(6) maintain records on a weekly basis that detail all corrective actions made to the continuous monitoring systems during monitor downtimes, and any delay in corrective action taken by documenting the dates, reasons, and durations of such occurrences; and(7) for cooling tower heat exchange systems that comply with §115.764(h) of this title, maintain records including, but not limited to:(A) the monitoring plan required by §115.764(h)(6) of this title;(B) hourly records of the inventory level of the finite volume system from the continuous monitoring system required by §115.764(h)(6) of this title; and(C) the date, time, purpose, and amount of all transfers of HRVOC into and out of the finite volume system;(b) The owner or operator of any cooling tower heat exchange system claiming an exemption under §115.767 of this title (relating to Exemptions) shall comply with the following recordkeeping requirements:(1) maintain records of the heat exchanger pressure differential to document continuous compliance with the exemption criteria of §115.767(1) of this title; or(2) maintain records of the content of the process side fluid or intervening fluid in each heat exchanger to demonstrate continuous compliance with the exemption criteria of §115.767(2) and (5) of this title.(c) The owner or operator shall maintain all records necessary to demonstrate continuous compliance and records of periodic measurements for at least five years and make them available for review upon request by authorized representatives of the executive director, United States Environmental Protection Agency, or any local air pollution control agency with jurisdiction.(d) The owner or operator of any cooling tower heat exchange system using the alternate periodic monitoring available under §115.764(d) of this title shall maintain sufficient records to demonstrate that no individual heat exchanger has 5.0% or greater HRVOC in the process-side fluid.(e) The owner or operator of any cooling tower heat exchange system using manufacturer's pump performance data to determine the maximum potential flow rate, as specified in §115.764(e)(1) of this title, shall maintain the following records for each pump:(1) certified pump performance information from the manufacturer. If manufacturer's certified information is unavailable, then pump performance information that is generated by a qualified independent third-party organization using a code or standard of practice acceptable to the executive director may be used;(2) the operating status of each pump;(3) the motor manufacturer, model number, and rated brake horsepower;(4) the impeller manufacturer, model number, size, and design;(5) any change to a cooling tower heat exchange system pump or pumping system in which the change would modify the basis for design pumping capacity; and(6) the effect of any change on the maximum potential flow rate.(f) The owner or operator of any cooling tower heat exchange system using a system to monitor cooling water pump discharge pressure to determine the continuous flow rate for each cooling tower, as specified in §115.764(e)(2) of this title, shall maintain the following records for each pump:(1) the continuous measurement of cooling water pump discharge pressure;(2) certified pump performance information from the manufacturer. If manufacturer's certified information is unavailable, then pump performance information that is generated by a qualified independent third-party organization using a code or standard of practice acceptable to the executive director may be used;(3) the operating status of each pump;(4) the motor manufacturer, model number, and rated brake horsepower;(5) the impeller manufacturer, model number, size, and design;(6) any change to a cooling tower heat exchange system pump or pumping system in which the change would modify the basis for design pumping capacity; and(7) the effect of any change on the maximum potential flow rate.(g) The owner or operator of each site subject to §115.761 of this title shall maintain daily records to demonstrate compliance with the tons per calendar year emissions limits specified in §115.761(a) and (b) of this title, including:(1) flare, vent gas, and pressure relief valve emissions that are subject to Division 1 of this subchapter (relating to Vent Gas Control); and(2) all cooling towers subject to the requirements of §115.764 of this title.(h) The owner or operator of each site subject to §115.761 of this title shall maintain hourly records to demonstrate compliance with the one-hour block emissions limits specified in §115.761(c) of this title, including:(1) flare, vent gas, and pressure relief valve emissions that are subject to Division 1 of this subchapter; and(2) all cooling towers subject to the requirements of §115.764 of this title.(i) The owner or operator of an affected cooling tower heat exchange system shall develop, implement, and follow a written quality assurance plan (QAP) for the installation, calibration, operation, and maintenance for the monitoring equipment required by this division as follows.(1) The owner or operator shall maintain records of the QAP and any revisions to the QAP on site.(2) Upon written request by the executive director, the QAP required in this paragraph shall be submitted within 30 days for review. The executive director may specify revisions to the QAP.(j) The owner or operator claiming an exemption under §115.767(4) of this title shall submit written notification to the executive director no later than December 31, 2005.</content><note type="source"><p>Source Note: The provisions of this §115.766 adopted to be effective December 23, 2004, 29 TexReg 11623.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.767"><num value="115.767">§115.767</num><heading>Exemptions</heading><content>The following exemptions apply.(1) Any cooling tower heat exchange system in which each individual heat exchanger with greater than 100 parts per million by weight (ppmw) highly-reactive volatile organic compounds (HRVOC) in the process side fluid is operated with the minimum pressure on the cooling water side at least five pounds per square inch, gauge (psig) greater than the maximum pressure on the process side, as demonstrated by continuous pressure monitoring and recording at all heat exchangers with greater than 100 ppmw HRVOC in the process side fluid, is exempt from the requirements of this division (relating to Cooling Tower Heat Exchange Systems), with the exception of the recordkeeping requirements of §115.766(b) and (c) of this title (relating to Recordkeeping and Reporting Requirements).(2) Any cooling tower heat exchange system in which no individual heat exchanger has greater than 100 ppmw HRVOCs in the process side fluid is exempt from the requirements of this division, with the exception of the recordkeeping requirements of §115.766(b) and (c) of this title.(3) Any site for which no stream directed to a cooling tower heat exchange system contains 5.0% or greater by weight HRVOC is exempt from the requirements of §115.761 of this title (relating to Site-wide Cap).(4) Any cooling tower heat exchange system that will be permanently out of service by April 1, 2006, is exempt from the requirements of this division, with the exception of the notification and recordkeeping requirements in §115.766(j) of this title.(5) Any cooling tower heat exchange system with an intervening cooling fluid containing less than 100 ppmw of HRVOC between the process and the cooling water is exempt from the requirements of this division, with the exception of the recordkeeping requirements of §115.766(b) and (c) of this title. For purposes of this exemption:(A) intervening fluid is a fluid that serves to isolate the cooling water from the process fluid and is not sent through a cooling tower or discharged; and(B) discharge does not include emptying for maintenance purposes.(6) All sites that are subject to this division and that are located in the Houston/ Galveston/Brazoria area as defined in §115.10 of this title (relating to Definitions), excluding Harris County, are exempt from §115.761(b) and (c)(2) of this title, except as provided in §115.769(a)(3) of this title (relating to Counties and Compliance Schedules).</content><note type="source"><p>Source Note: The provisions of this §115.767 adopted to be effective December 23, 2004, 29 TexReg 11623.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.769"><num value="115.769">§115.769</num><heading>Counties and Compliance Schedules</heading><content>(a) The owner or operator of each cooling tower heat exchange system in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties shall demonstrate compliance with this division (relating to Cooling Tower Heat Exchange Systems) as soon as practicable, but no later than December 31, 2005, with the exception of the following:(1) §115.761(a) and (c)(2) of this title (relating to Site-wide Cap) for which the owner or operator shall demonstrate compliance as soon as practicable, but no later than January 1, 2007;(2) §115.761(b) and (c)(1) of this title for which the owner or operator shall demonstrate compliance as soon as practicable, but no later than April 1, 2006; and(3) the exemption in §115.767(6) of this title (relating to Exemptions) will no longer apply upon public notice of revocation by the commission. Upon revocation of §115.767(6) of this title, sites subject to this division located in the Houston/Galveston/Brazoria area, as defined in §115.10 of this title (relating to Definitions), excluding Harris County, shall comply with paragraphs (1) and (2) of this subsection by the dates specified in those paragraphs, or within 180 days of public notice, whichever is later.(b) For cooling tower heat exchange systems that become subject to the requirements of this division after December 31, 2005, testing and monitoring must be conducted as soon as practicable, but no later than 60 days after being brought into highly-reactive volatile organic compound service.</content><note type="source"><p>Source Note: The provisions of this §115.769 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective April 1, 2004, 29 TexReg 3233; amended to be effective December 23, 2004, 29 TexReg 11623.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.780"><num value="115.780">§115.780</num><heading>Applicability</heading><content>(a) Any process unit or process within a petroleum refinery; synthetic organic chemical, polymer, resin, or methyl tert-butyl ether manufacturing process; or natural gas/gasoline processing operation in the Houston/Galveston/Brazoria area, as defined in §115.10 of this title (relating to Definitions), in which a highly-reactive volatile organic compound, as defined in §115.10 of this title, is a raw material, intermediate, final product, or in a waste stream is subject to the requirements of this division (relating to Fugitive Emissions) in addition to the applicable requirements of Subchapter D, Division 3 of this chapter (relating to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas).(b) An owner or operator may not use emission reduction credits or discrete emission reduction credits in order to demonstrate compliance with this division.</content><note type="source"><p>Source Note: The provisions of this §115.780 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective December 23, 2004, 29 TexReg 11623.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.781"><num value="115.781">§115.781</num><heading>General Monitoring and Inspection Requirements</heading><content>(a) The owner or operator shall identify the components of each process unit in highly-reactive volatile organic compound (HRVOC) service that is subject to this division (relating to Fugitive Emissions). Such identification must allow for ready identification of the components, and distinction from any components that are not subject to this division. The components must be identified by one or more of the following methods:(1) a plant site plan;(2) color coding;(3) a written or electronic database;(4) designation of process unit boundaries;(5) some form of weatherproof identification; or(6) process flow diagrams that exhibit sufficient detail to identify major pieces of equipment, including major process flows to, from, and within a process unit. Major equipment includes, but is not limited to, columns, reactors, pumps, compressors, drums, tanks, and exchangers.(b) Each component in the process unit must be monitored according to the requirements of Subchapter D, Division 3 of this chapter (relating to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas), except that the following additional requirements apply.(1) The exemptions of §115.357(1) - (12) of this title (relating to Exemptions) do not apply.(2) The leak-skip provisions of §115.354(7) and (8) of this title (relating to Monitoring and Inspection Requirements) do not apply.(3) The emissions from blind flanges, caps, or plugs at the end of a pipe or line containing HRVOC; connectors; heat exchanger heads; sight glasses; meters; gauges; sampling connections; bolted manways; hatches; agitators; sump covers; junction box vents; covers and seals on volatile organic compound water separators; and process drains must be monitored each calendar quarter (with a hydrocarbon gas analyzer).(4) All components for which a repair attempt was made during a shutdown must be monitored (with a hydrocarbon gas analyzer) and inspected for leaks within 30 days after startup is completed following the shutdown.(5) All process drains equipped with water seal controls, as defined in §115.140 of this title (relating to Industrial Wastewater Definitions), must be inspected weekly to ensure that the water seal controls are effective in preventing ventilation, except that daily inspections are required for those seals that have failed three or more inspections in any 12-month period. Upon request by the executive director, United States Environmental Protection Agency, or any local program with jurisdiction, the owner or operator shall demonstrate (e.g., by visual inspection or smoke test) that the water seal controls are properly designed and restrict ventilation.(6) All process drains not equipped with water seal controls must be inspected monthly to ensure that all gaskets, caps, and/or plugs are in place and that there are no gaps, cracks, or other holes in the gaskets, caps, and/or plugs. In addition, all caps and plugs must be inspected monthly to ensure that they are tightly fitting.(7) An unsafe-to-monitor or difficult-to-monitor component for which quarterly monitoring is specified may instead be monitored as follows.(A) An unsafe-to-monitor component is a component that the owner or operator determines is unsafe to monitor because monitoring personnel would be exposed to an immediate danger as a consequence of conducting the monitoring. Components that are unsafe to monitor must be identified in a list made immediately available upon request. If an unsafe-to-monitor component is not considered safe to monitor within a calendar year, then it must be monitored as soon as possible during safe-to-monitor times.(B) A difficult-to-monitor component is a component that cannot be inspected without elevating the monitoring personnel more than two meters above a permanent support surface or that requires a permit for confined space entry as defined in 29 Code of Federal Regulations (CFR) §1910.146. A difficult-to-monitor component for which quarterly monitoring is specified may instead be monitored annually.(8) All pressure relief valves in gaseous service that are not equipped with a rupture disk upstream of the relief valve with a pressure-sensing device between the rupture disk and the pressure relief valve must be monitored for fugitive leaks each calendar quarter (with a hydrocarbon gas analyzer).(9) A leak is defined as a screening concentration greater than 500 parts per million by volume above background as methane for all components. If the owner or operator elects to use the alternative work practice in §115.358 of this title (relating to Alternative Work Practice), a leak is defined as specified in §115.358 of this title, including any leak detected using the alternative work practice on a component that is subject to the requirements of this division but not specifically selected for alternative work practice monitoring.(10) Monitored screening concentrations must be recorded for each component in gaseous or light liquid service. Notations such as "pegged," "off scale," "leaking," "not leaking," or "below leak definition" may not be substituted for hydrocarbon gas analyzer results. For readings that are higher than the upper end of the scale (i.e., pegged) even when using the highest scale setting or a dilution probe, record a default pegged value of 100,000 parts per million by volume. This requirement does not apply to monitoring using an optical gas imaging instrument in accordance with §115.358 of this title.(c) Pumps, compressors, and agitators must be:(1) inspected visually each calendar week for liquid dripping from the seals; or(2) equipped with an alarm that alerts the operator of a leak.(d) If securing the bypass line valve in the closed position to comply with §115.783(1)(B) of this title (relating to Equipment Standards), the seal or closure mechanism must be visually inspected to ensure the valve is maintained in the closed position and the vent stream is not diverted through the bypass line:(1) on a monthly basis; and(2) after any maintenance activity that requires the seal to be broken.(e) For any pressure relief device that has vented directly to the atmosphere (uncontrolled), the associated vent must be monitored (with a hydrocarbon gas analyzer) and inspected within 24 hours after actuation and the results recorded in accordance with §115.786 of this title (relating to Recordkeeping Requirements). If the associated vent is considered unsafe to monitor, then the vent must be monitored as soon as possible during safe-to-monitor times. If the associated vent is considered difficult to monitor, it must be monitored within 15 days after a release. This requirement does not supersede any monitoring requirements found in §115.725 of this title (relating to Monitoring and Testing Requirements).(f) As an alternative to the requirements of subsection (b)(3) of this section for blind flanges, caps, or plugs at the end of a pipe or line containing HRVOC, sight glasses, meters, gauges, connectors, bolted manways, heat exchanger heads, hatches, and sump covers, the owner or operator may elect to monitor all of these components in a process unit by April 1, 2006, and then conduct subsequent monitoring at the following frequencies.(1) The owner or operator may monitor the components once per year (i.e., 12-month period), if the percent leaking blind flanges, caps, or plugs at the end of a pipe or line containing HRVOC, sight glasses, meters, gauges, connectors, bolted manways, heat exchanger heads, hatches, and sump covers in the process unit was 0.5% or greater, but less than 2.0%, during the last required annual or biennial monitoring period.(2) The owner or operator may monitor the components once every two years, if the percent leaking blind flanges, caps, or plugs at the end of a pipe or line containing HRVOC, sight glasses, meters, gauges, connectors, bolted manways, heat exchanger heads, hatches, and sump covers was less than 0.5% during the last required monitoring period. An owner or operator may comply with this paragraph by monitoring at least 40% of the components in the first year and the remainder of the components in the second year. The percent leaking connectors, bolted manways, heat exchanger heads, hatches, and sump covers will be calculated for the total of all monitoring performed during the two-year period.(3) If the owner or operator of a process unit in a biennial leak detection and repair program calculates less than 0.5% leaking blind flanges, caps, or plugs at the end of a pipe or line containing HRVOC, sight glasses, meters, gauges, connectors, bolted manways, heat exchanger heads, hatches, and sump covers from the two-year monitoring period, the owner or operator may monitor the components one time every four years. An owner or operator may comply with the requirements of this paragraph by monitoring at least 20% of the components each year until all connectors, bolted manways, heat exchanger heads, hatches, and sump covers have been monitored within four years.(4) If a process unit complying with the requirements of paragraph (3) of this subsection using a four-year monitoring interval program has greater than or equal to 0.5% but less than 1.0% leaking blind flanges, caps, or plugs at the end of a pipe or line containing HRVOC, sight glasses, meters, gauges, connectors, bolted manways, heat exchanger heads, hatches, and sump covers, the owner or operator shall increase the monitoring frequency to one time every two years. An owner or operator may comply with the requirements of this paragraph by monitoring at least 40% of the components in the first year and the remainder of the components in the second year. The owner or operator may again elect to use the provisions of paragraph (3) of this subsection when the percent leaking components decreases to less than 0.5%.(5) If a process unit complying with requirements of paragraph (3) of this subsection using a four-year monitoring interval program has greater than or equal to 1.0% but less than 2.0% leaking blind flanges, caps, or plugs at the end of a pipe or line containing HRVOC, sight glasses, meters, gauges, connectors, bolted manways, heat exchanger heads, hatches, and sump covers, the owner or operator shall increase the monitoring frequency to one time per year. The owner or operator may again elect to use the provisions of paragraph (3) of this subsection when the percent leaking components decreases to less than 0.5%.(6) If a process unit complying with requirements of paragraph (3) of this subsection using a four-year monitoring interval program has 2.0% or greater leaking blind flanges, caps, or plugs at the end of a pipe or line containing HRVOC, sight glasses, meters, gauges, connectors, bolted manways, heat exchanger heads, hatches, and sump covers, the owner or operator shall increase the monitoring frequency to quarterly. The owner or operator may again elect to use the provisions of paragraph (3) of this subsection when the percent leaking components decreases to less than 0.5%.(g) Except as provided in paragraph (2) of this subsection, the owner or operator shall use dataloggers and/or electronic data collection devices during all monitoring required by this section. The owner or operator shall transfer electronic data from electronic datalogging devices to an electronic or hard copy database within seven days of monitoring.(1) For all monitoring events in which an electronic data collection device is used, the collected monitoring data must include the identification of each component and each calibration run, the maximum screening concentration detected, the time of monitoring (i.e., the time that the organic vapor concentration is read or recorded for each component), a date stamp, an operator identification, an instrument identification, and calibration gas concentrations and certification dates.(2) The owner or operator may use paper logs where necessary or more feasible (e.g., small rounds (less than 100 components), re-monitoring following component repair, or when dataloggers are broken or not available), and shall record, at a minimum, the information required in paragraph (1) of this subsection. The owner or operator shall transfer any manually recorded monitoring data to the electronic or hard copy database within seven days of monitoring.(3) Each change to the database regarding the monitored concentration, date and time read, repair information, addition or deletion of components, or monitoring schedule must be detailed in a log or inserted as a notation in the database. All such changes must include the name of the person who made the change, the date of the change, and an explanation to support the change.(h) For any components that the owner or operator elects to use the alternative work practice in §115.358 of this title, the following provisions apply.(1) The frequency for monitoring any components listed in this section must be the frequency determined according to §115.358 of this title, except as specified in paragraph (3) of this subsection.(2) The alternative monitoring schedules allowed under subsection (f) of this section are not allowed.(3) If the owner or operator elects to use the alternative work practice in §115.358 of this title to satisfy the hydrocarbon gas analyzer monitoring requirements of subsections (b)(4) or (e) of this section, the time limitations specified in subsections (b)(4) and (e) of this section on performing the monitoring continue to apply.(4) If the component is within a class of equipment (e.g., valves, flanges, etc.) that the owner or operator has elected to monitor using the alternative work practice in §115.358 of this title and the component meets all other conditions specified in §115.358 of this title for acceptable use of the alternative work practice, then the component may not be classified as difficult-to-monitor under subsection (b)(7)(B) of this section unless in order to image the component as required by §115.358 of this title the monitoring personnel would have to be elevated more than two meters above a permanent support surface or would require a permit for confined space entry as defined in 29 CFR §1910.146 (December 1, 1998). If the component does qualify as difficult-to-monitor using the alternative work practice in §115.358 of this title, the owner or operator may use either Method 21 in 40 CFR Part 60, Appendix A-7 (October 17, 2000) or the alternative work practice at the monitoring frequency specified in subsection (b)(7)(B) of this section.(5) An owner or operator electing to use the alternative work practice in §115.358 of this title may still classify a component as unsafe-to-monitor as allowed under subsection (b)(7)(A) of this section if the component cannot be safely monitored using either a hydrocarbon gas analyzer or the alternative work practice.(6) For any components subject to subsection (b)(3) of this section that are not subject to Method 21 monitoring under 40 CFR Parts 60, 61, 63, or 65, but the owner or operator is using the alternative work practice in §115.358 of this title to satisfy a Method 21 monitoring requirement under this chapter, the owner or operator may choose to comply with the following in lieu of the annual Method 21 monitoring in §115.358(f) of this title.(A) For any leak detected using the alternative work practice in §115.358 of this title, the owner or operator must perform a Method 21 test on the component to determine the leak concentration. The Method 21 test must be performed no later than one business day after the leak is detected using the alternative work practice in §115.358 of this title.(B) To qualify for this option, the percent leaking components of all the components selected for this option must be less than 2.0%.(C) The owner or operator shall perform a Method 21 test on each component selected for this option according to the frequencies specified in subsection (f) of this section. If the Method 21 test required under subparagraph (A) of this paragraph for any leak detected is within the same calendar year as the normally scheduled Method 21 test required under this subparagraph, the owner or operator may use the Method 21 test performed for subparagraph (A) of this paragraph to satisfy the requirements of this subparagraph.(D) If the owner or operator elects to follow the alternative schedules for annual Method 21 testing under this paragraph, the owner or operator shall provide notice of electing this option with the notification required under §115.358(g) of this title.</content><note type="source"><p>Source Note: The provisions of this §115.781 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg 11623; amended to be effective June 24, 2010, 35 TexReg 5293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.782"><num value="115.782">§115.782</num><heading>Procedures and Schedule for Leak Repair and Follow-up</heading><content>(a) Tagging. Upon the detection or designation of a leaking component, a weatherproof and readily visible tag, bearing the component identification and the date the leak was detected, must be affixed to the leaking component. The tag must remain in place until the leaking component is repaired.(b) General rule - time to repair.(1) For leaks detected over 10,000 parts per million by volume (ppmv), a first attempt at repairing the leaking component must be made no later than one business day after the leak is detected, and the component must be repaired no later than seven calendar days after the leak is detected.(2) For all other leaks, a first attempt at repairing the leaking component must be made no later than five calendar days after the leak is detected, and the component must be repaired no later than 15 calendar days after the leak is detected.(3) Except as specified in paragraph (4) of this subsection, for any leak detected using the alternative work practice in §115.358 of this title (relating to Alternative Work Practice), a first attempt at repairing the leaking component must be made no later than one business day after the leak is detected, and the component must be repaired no later than seven calendar days after the leak is detected. If the owner or operator measures the leak concentration using Method 21 in 40 Code of Federal Regulations Part 60, Appendix A-7 (October 17, 2000) and demonstrates the leak concentration is 10,000 ppmv or less, then the time to repair is as specified in paragraph (2) of this subsection. The Method 21 test must be performed no later than the next business day after the leak was detected using the alternative work practice in §115.358 of this title.(4) For any leak detected using the alternative work practice in §115.358 of this title from a component classified as difficult to monitor using Method 21, but not classified as difficult to monitor using the alternative work practice, the time to repair is as specified in paragraph (2) of this subsection.(c) Delay of repair.(1) For all components (except valves specified in paragraph (2) of this subsection), repair may be delayed beyond the period designated in subsection (b) of this section for any of the following reasons.(A) The component is isolated from the process and does not remain in highly-reactive volatile organic compound (HRVOC) service.(B) If the repair of a component within seven or 15 days (as specified in subsection (b) of this section) after the leak is detected would require a process unit shutdown that would create more emissions than the repair would eliminate, the repair may be delayed until the next scheduled process unit shutdown, provided that the owner or operator meets the conditions in both clause (i) and (ii) of this subparagraph, or meets the conditions of either clause (iii) or (iv) of this subparagraph.(i) The owner or operator maintains documentation of the following calculations, and makes the documentation available upon request to authorized representatives of the United States Environmental Protection Agency (EPA), the executive director, and any local air pollution control agency with jurisdiction.(I) The owner or operator shall calculate the expected mass emissions resulting from the next scheduled process unit shutdown, clearing, and subsequent startup of the unit, including the basis for the calculation and all assumptions made.(II) The owner or operator shall calculate the mass emission rates from each leaking component in the process unit for which delay of repair is sought as determined by using the methods in the EPA correlation approach in Section 2.3.3 of the EPA guidance document Protocol for Equipment Leak Emission Estimates (EPA-453/R-95-017, November 1995) alone or in combination with the mass emission sampling approach in Chapter 4 of the guidance document (EPA-453/R-95-017, November 1995). To use the EPA correlation approach, the estimated hourly mass emission rate for each component shall be based on the component's current screening concentration using Method 21. The initial calculation must be performed within 30 days after the leak is detected. Where the monitoring instrument is not calibrated to read past the leak definition or 100,000 ppmv, the pegged emission rate values in Tables 2-13 and 2-14 in Section 2.3.3 of the EPA guidance document Protocol for Equipment Leak Emission Estimates must be used as appropriate. If the mass emission sampling approach is used, it replaces the estimated emissions rate of the EPA correlation approach in the calculation. For any leak detected using the alternative work practice in §115.358 of this title that a corresponding Method 21 or mass emission sampling test was not performed on that specific leak, the owner or operator shall use the 100,000 ppmv pegged emission rate values in Tables 2-13 and 2-14 in Section 2.3.3 of the EPA guidance document Protocol for Equipment Leak Emission Estimates, as appropriate.(III) The owner or operator shall calculate the daily mass emissions from each leaking component in HRVOC service in the process unit for which delay of repair is sought calculated as 24 times the hourly mass emission rate determined as required by subclause (II) of this clause.(IV) The owner or operator shall calculate the total daily mass emissions in the process unit from the calculations made in subclause (III) of this clause for leaking components in HRVOC service in the unit for which delay of repair is sought.(ii) The total daily mass emissions from leaking components in HRVOC service in the process unit for which delay of repair is sought as determined in clause (i)(IV) of this subparagraph will be less than the daily mass emissions resulting from shutdown, clearing, and subsequent startup of the unit as determined in clause (i)(I) of this subparagraph or 500 pounds, whichever is greater.(iii) As an alternative to the requirements of clause (i) and (ii) of this subparagraph, delay of repair is allowed for each leaking component for which the owner or operator has chosen to undertake extraordinary efforts to repair the leak. For purposes of this subparagraph, extraordinary efforts is defined as nonroutine repair methods (e.g., sealant injection) or utilization of a closed-vent system to capture and control the leaks by at least 90%.(I) For leaks detected over 10,000 ppmv, extraordinary efforts must be undertaken within 22 calendar days after the leak is found. The owner or operator may keep the leaking component on the shutdown list only after two unsuccessful attempts to repair the leaking component through extraordinary efforts, provided that the second extraordinary effort attempt is made within 37 calendar days after the leak is found.(II) For all other leaks, extraordinary efforts must be undertaken within 30 calendar days after the leak is found, and a second extraordinary effort attempt is not required to keep the component on the shutdown list.(III) For any leak detected from a component using the alternative work practice in §115.358 of this title, extraordinary efforts must be performed as specified in subclause (I) of this clause. If the owner or operator measures the leak concentration using Method 21 and demonstrates the leak concentration is 10,000 ppmv or less, then extraordinary efforts must be as specified in subclause (II) of this clause. The Method 21 test must be performed no later than one business day after the leak was detected using the alternative work practice screening.(iv) The component is repaired or replaced at the next scheduled shutdown. The executive director may require an early process unit shutdown, or other appropriate action, based on the number and severity of leaks awaiting a shutdown.(C) The components are pumps, compressors, or agitators, and:(i) repair requires replacing the existing seal design with:(I) a dual mechanical seal system that includes a barrier fluid system;(II) a system that is designed with no externally actuated shaft penetrating the housing; or(III) a closed-vent system and control device that meets the requirements of §115.783 of this title (relating to Equipment Standards); and(ii) repair is completed as soon as practicable, but no later than six months after the leak was detected.(2) For valves that are not pressure relief valves or automatic control valves, repair may only be delayed beyond the period designated in subsection (b) of this section if the conditions of either subparagraphs (A) or (B) of this paragraph are met.(A) The valves are repaired or replaced at the next scheduled process unit shutdown. The owner or operator shall also do one of the following.(i) The owner or operator undertakes extraordinary efforts to repair the leaking valve. For purposes of this subparagraph, extraordinary efforts is defined as nonroutine repair methods (e.g., sealant injection) or utilization of a closed-vent system to capture and control the leaks by at least 90%.(I) For leaks detected over 10,000 ppmv, extraordinary efforts must be undertaken within 14 calendar days after the leak is found. The owner or operator may keep the leaking valve on the shutdown list only after two unsuccessful attempts to repair a leaking valve through extraordinary efforts, provided that the second extraordinary effort attempt is made within 15 days of the first extraordinary effort attempt.(II) For all other leaks, extraordinary efforts must be undertaken within 30 calendar days after the leak is found, and a second extraordinary effort attempt is not required to keep the valve on the shutdown list.(III) For any leak detected from a component using the alternative work practice in §115.358 of this title, extraordinary efforts must be performed as specified in subclause (I) of this clause. If the owner or operator measures the leak concentration using Method 21 and demonstrates the leak concentration is 10,000 ppmv or less, then extraordinary efforts must be as specified in subclause (II) of this clause. The Method 21 test must be performed no later than one business day after the leak was detected using the alternative work practice screening.(ii) The owner or operator maintains, and makes available upon request, documentation to authorized representatives of EPA, the executive director, and any local air pollution control agency having jurisdiction that demonstrates that there is a safety, mechanical, or major environmental concern posed by repairing the leak by using extraordinary efforts and emissions from the leaking valves are included in the calculation of total daily mass emissions required by paragraph (1)(B)(i)(IV) of this subsection.(B) The valve is isolated from the process and does not remain in HRVOC service.(d) Demonstration of repair. For the purposes of this section, a component is considered repaired:(1) for any component that the owner or operator monitors using the alternative work practice in §115.358 of this title, when the component is demonstrated to no longer have a leak after adjustments or alterations to the component by either screening using an optical gas imaging instrument as specified in §115.358 of this title or by using Method 21 at the leak definition in §115.781(b)(9) of this title (relating to General Monitoring and Inspection Requirements); and(2) for all other components, when the component is demonstrated to no longer have a leak after adjustments or alterations to the component by the normal monitoring method required under this division.</content><note type="source"><p>Source Note: The provisions of this §115.782 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective December 23, 2004, 29 TexReg 11623; amended to be effective June 24, 2010, 35 TexReg 5293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.783"><num value="115.783">§115.783</num><heading>Equipment Standards</heading><content>The following equipment standards apply.(1) Closed-vent systems containing bypass lines (excluding low-leg drains, high-point bleeds, analyzer vents, open-ended valves or lines, and pressure relief valves needed for safety purposes) that could divert a vent stream away from the control device and to the atmosphere, must have either:(A) a flow indicator that determines whether vent stream flow is present in the bypass line at least once every 15 minutes; or(B) the bypass line valve secured in the closed position with a car-seal or a lock-and-key type configuration.(2) Whenever highly-reactive volatile organic compound emissions are vented to a closed-vent system, control device, or recovery device used to comply with the provisions of this chapter, the system or control device is subject to the requirements of Division 1 of this subchapter (relating to Vent Gas Control).(3) Pumps, compressors, and agitators installed on or after July 1, 2003, shall be equipped with a shaft sealing system that prevents or detects emissions of volatile organic compounds from the seal.(A) Acceptable shaft sealing systems include:(i) seals equipped with piping capable of transporting any leakage from the seal(s) back to the process;(ii) seals with a closed-vent system capable of transporting to a control device any leakage from the seal or seals;(iii) dual seals with a heavy liquid or non-volatile organic compounds barrier fluid or gas at higher pressure than process pressure; and(iv) seals with an automatic seal failure detection and alarm system.(B) The executive director may approve shaft sealing systems different from those specified in subparagraph (A) of this paragraph. The executive director:(i) shall consider on a case-by-case basis the technological circumstances of the individual pump, compressor, or agitator; and(ii) must determine that the alternative shaft sealing system will result in the lowest emissions level that the pump, compressor, or agitator is capable of meeting after the application of best available control technology before approving the alternative shaft sealing system.(C) Any owner or operator affected by the executive director's decision to deny a request for approval of an alternative shaft sealing system may file a motion to overturn the executive director's decision. The requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) apply. Executive director approval does not necessarily constitute satisfaction of all federal requirements nor eliminate the need for approval by the United States Environmental Protection Agency in cases where specified criteria for determining equivalency have not been clearly identified in this section.(4) The following equipment standards shall apply to process drains.(A) If water seal controls, as defined in §115.140 of this title (relating to Industrial Wastewater Definitions), are used:(i) the only acceptable alternative to water as the sealing liquid in a water seal is the use of ethylene glycol, propylene glycol, or other low vapor pressure antifreeze, that may be used only during the period of November through February; and(ii) as an alternative to the weekly water seal inspections of §115.781(b)(5) of this title (relating to General Monitoring and Inspection Requirements), the owner or operator may choose to equip the process drain with:(I) an alarm that alerts the operator if the water level in the vertical leg of the drain falls below 50% of the maximum level, and a device that continuously records the status of the water level alarm, including the time period for which the alarm has been activated; or(II) a flow-monitoring device indicating either positive flow from a main to a branch water line supplying a trap or water being continuously dripped into the trap; and a device that continuously records the status of water flow into the trap.(B) For process drains not equipped with water seal controls, the process drain shall be equipped with:(i) a gasketed seal; or(ii) a tightly-fitting cap or plug.(5) No valves shall be installed or operated at the end of a pipe or line containing highly-reactive volatile organic compounds unless the pipe or line is sealed with a second valve, a blind flange, or a tightly-fitting plug or cap. The sealing device may be removed only while a sample is being taken or during maintenance operations, and when closing the line, the upstream valve shall be closed first.</content><note type="source"><p>Source Note: The provisions of this §115.783 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg 11623.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.784"><num value="115.784">§115.784</num><heading>Alternate Control Requirements</heading><content>(a) The executive director may approve alternate methods of demonstrating and documenting continuous compliance with the applicable control requirements or exemption criteria in this division (relating to Fugitive Emissions) in accordance with §115.910 of this title (relating to Availability of Alternate Means of Control) if emission reductions are demonstrated to be substantially equivalent.(b) The owner or operator of a site subject to the requirements of this division may use the alternative work practice in §115.358 of this title (relating to Alternative Work Practice) as an optional alternative to hydrocarbon gas analyzer monitoring required under this division.</content><note type="source"><p>Source Note: The provisions of this §115.784 adopted to be effective June 24, 2010, 35 TexReg 5293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.786"><num value="115.786">§115.786</num><heading>Recordkeeping Requirements</heading><content>(a) If using a flow indicator to comply with §115.783(1)(A) of this title (relating to Equipment Standards), the owner or operator shall:(1) maintain hourly records of whether the flow indicator was operating and whether a diversion was detected at any time during the hour; and(2) record all periods when:(A) the vent stream is diverted from the control stream; or(B) the flow indicator is not operating.(b) If securing the bypass line valve in the closed position to comply with §115.783(1)(B) of this title, the owner or operator shall:(1) maintain a record of the dates that the monthly visual inspection of the seal or closure mechanism has been performed;(2) record the date and time of all periods when:(A) the seal mechanism is broken;(B) the bypass line valve position has changed; or(C) the key for a lock-and-key type lock has been checked out; and(3) maintain a record of each time the bypass line valve was opened, including:(A) the date and time the valve was opened;(B) the date and time the valve was closed;(C) the reason(s) the valve was opened;(D) the estimated flow rate through the valve; and(E) the resulting emissions, including the basis for the emissions estimate.(c) Records of all non-repairable components subject to §115.782(c) of this title (relating to Procedures and Schedule for Leak Repair and Follow-up) must be maintained. Reports must be submitted by January 31 for the previous July 1 through December 31 and July 31 for the previous January 1 through June 30 of each year to the Houston regional office and any local air pollution control agency having jurisdiction. The report must contain:(1) the component identification code;(2) the component type;(3) the leak concentration measurement and date, if a hydrocarbon gas analyzer was used to determine the leak;(4) if the owner or operator used the alternative work practice in §115.358 of this title (relating to Alternative Work Practice), indication that the leak was determined according to the alternative work practice and the date the leak was detected;(5) the date of the last scheduled process unit shutdown; and(6) the total number of non-repairable components awaiting repair or replacement.(d) The owner or operator shall maintain records in accordance with §115.356 of this title (relating to Recordkeeping Requirements), including records identifying, by one or more of the methods specified in §115.781(a)(1) - (6) of this title (relating to General Monitoring and Inspection Requirements), and justifying each exemption claimed exempt under §115.787 of this title (relating to Exemptions). The following additional requirements also apply:(1) the calculation showing the estimated volatile organic compound (VOC) emission rates of the component as required by §115.782(c)(1)(B)(i)(II) of this title if extraordinary efforts are not going to be initiated; and(2) records for each process unit with leaking components, updated within five business days after a leaking component is determined to require a process unit shutdown to repair and where extraordinary efforts to repair the component will not be pursued, including the following:(A) the date, calculations, and estimated daily VOC emissions as required by §115.782(c)(1)(B)(i)(III) of this title;(B) the date, calculations, and comparison of daily VOC emissions as required by §115.782(c)(1)(B)(i)(IV) and (ii) of this title; and(C) the date of each process unit shutdown required due to VOC emissions of leaking components exceeding the expected VOC emissions from the shutdown.(e) The owner or operator shall maintain a record of the results of all monitoring and inspections conducted in accordance with §115.781 of this title.(f) If the owner or operator elects to use the alternative work practice in §115.358 of this title, the following records must be maintained in addition to the records required by subsections (a) - (e) of this section.(1) The owner or operator shall maintain a list of each component that is monitored according to the alternative work practice in §115.358 of this title.(2) The owner or operator shall maintain records of the detection sensitivity level selected from the table in §115.358(e)(1) of this title.(3) The owner or operator shall maintain records of the analysis to determine the component in contact with the lowest mass fraction of chemicals that are detectable, as required by the daily instrument check procedure referenced in §115.358(c)(2) of this title.(4) The owner or operator shall maintain records of the technical basis for the mass fraction of detectable chemicals used for the daily instrument check procedure referenced in §115.358(c)(2) of this title.(5) The owner or operator shall maintain records of each daily instrument check required by §115.358(c)(2) of this title. These records include:(A) the flow meter reading of the leak used in the daily instrument check and the distance from which the leak was imaged;(B) a video record, with a date and time stamp, of the daily instrument check for each configuration and operator of the optical gas imaging instrument used during monitoring; and(C) the name of each operator performing the daily instrument check.(6) The owner or operator shall maintain records of the leak survey results as follows for all components that the owner or operator monitors using the alternative work practice in §115.358 of this title.(A) A video record must be used to document the leak survey results and the results of the recheck to verify the leak has been repaired, if the alternative work practice in §115.358 of this title is used to perform the recheck. The video record must meet the following requirements.(i) The video record must include a time and date stamp for each monitoring event.(ii) Each component must be identifiable in the video record.(B) The records must include the name of each operator performing the leak survey for each monitoring event.(7) The owner or operator shall maintain records of the annual Method 21 screening required by §115.358(f) of this title, including:(A) the components screened according to Method 21;(B) the concentration measured according to Method 21;(C) the date and time of the Method 21 screening; and(D) the calibrations required by Method 21.(8) The owner or operator shall maintain records of the training required by §115.358(h) of this title.(9) If the owner or operator elects to use the alternative frequencies for the annual Method 21 specified in §115.781(h)(6) of this title, the following additional records must be maintained:(A) a list of each component that the owner or operator is using the alternative frequencies allowed under §115.781(h)(6) of this title; and(B) the percent leaking components for the specific population of components included in the alternative frequency schedule.(10) The owner or operator shall maintain records of the optical gas imaging instrument manufacturer's operating parameters.(g) The owner or operator shall maintain all records for at least five years and make them available for review upon request by authorized representatives of the executive director, United States Environmental Protection Agency, or local air pollution control agencies with jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §115.786 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective December 23, 2004, 29 TexReg 11623; amended to be effective June 24, 2010, 35 TexReg 5293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.787"><num value="115.787">§115.787</num><heading>Exemptions</heading><content>(a) Components that contact a process fluid containing less than 5.0% highly-reactive volatile organic compounds by weight on an annual average basis are exempt from the requirements of this division (relating to Fugitive Emissions), except for §115.786(e) and (g) of this title (relating to Recordkeeping Requirements).(b) The following are exempt from the shaft sealing system requirements of §115.783(3) of this title (relating to Equipment Standards):(1) submerged pumps or sealless pumps (e.g., diaphragm, canned, or magnetic-driven pumps); and(2) pumps, compressors, and agitators installed before July 1, 2003.(c) The following components are exempt from the requirements of this division:(1) conservation vents or other devices on atmospheric storage tanks that are actuated either by a vacuum or a pressure of no more than 2.5 pounds per square inch gauge (psig);(2) components in continuous vacuum service;(3) valves that are not externally regulated (such as in-line check valves);(4) any site as defined in §122.10 of this title (relating to General Definitions) with less than 250 components in volatile organic compound (VOC) service;(5) components that are insulated, making them inaccessible to monitoring with a hydrocarbon gas analyzer;(6) sampling connection systems, as defined in 40 Code of Federal Regulations (CFR) §63.161 (January 17, 1997), that meet the requirements of 40 CFR §63.166(a) and (b) (June 20, 1996); and(7) instrumentation systems, as defined in 40 CFR §63.161 (January 17, 1997), that meet the requirements of 40 CFR §63.169 (June 20, 1996).(d) All pumps, compressors, and agitators that are equipped with a shaft sealing system that prevents or detects emissions of VOC from the seal are exempt from the monitoring requirement of §115.781(b) and (c) of this title (relating to General Monitoring and Inspection Requirements). These seal systems may include, but are not limited to, dual seals with barrier fluid at higher pressure than process pressure, seals degassing to vent control systems kept in good working order, or seals equipped with an automatic seal failure detection and alarm system. Submerged pumps or sealless pumps (including, but not limited to, diaphragm, canned, or magnetic driven pumps) may be used to satisfy the requirements of this subsection.(e) Each pressure relief valve equipped with an upstream rupture disk is exempt from the requirements of §115.781(b)(8) of this title, provided that the pressure relief valve complies with §115.725(c) of this title (relating to Monitoring and Testing Requirements). The rupture disk must be replaced as soon as practicable, but no later than 30 calendar days after a failure is detected.(f) The following valves are exempt from the requirements of §115.783(5) of this title:(1) pressure relief valves;(2) open-ended valves or lines in an emergency shutdown system that are designed to open automatically in the event of an emissions event;(3) open-ended valves or lines containing materials that would autocatalytically polymerize or would present an explosion, serious overpressure, or other safety hazard if capped or equipped with a double block and bleed system; and(4) valves rated greater than 10,000 psig.(g) Any site as defined in §122.10 of this title with less than 100 valves in highly-reactive volatile organic compound service is exempt from §115.788 of this title (relating to Audit Provisions).</content><note type="source"><p>Source Note: The provisions of this §115.787 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg 11623; amended to be effective June 24, 2010, 35 TexReg 5293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.788"><num value="115.788">§115.788</num><heading>Audit Provisions</heading><content>(a) At least once every calendar year, the owner or operator of a site as defined in §122.10 of this title (relating to General Definitions) that is subject to the highly-reactive volatile organic compound (HRVOC) fugitive monitoring requirements of this division (relating to Fugitive Emissions) shall retain the services of an independent third-party organization to conduct an audit of the process units subject to HRVOC monitoring in this division. The field survey conducted as part of the audit must be based on a random sampling of the affected valves at the site. The random sample must be such that each valve has an equal chance of being selected from the total number of valves being sampled. The valves to be considered in this random sampling are all of the valves at the site in HRVOC service that are not exempted from quarterly monitoring by §115.787 of this title (relating to Exemptions) and are not listed on either the difficult-to-monitor or the unsafe-to-monitor lists.(1) The independent third-party organization shall verify that all affected valves are properly tagged in accordance with §115.782(a) of this title (relating to Procedures and Schedule for Leak Repair and Follow-up).(2) The independent third-party organization shall perform a field survey to determine the representative percentage of leaking valves determined from the random sampling of the affected units at the site as follows.(A) The field survey must begin after the owner or operator's contracted or usual monitoring service has completed monitoring the valves for that monitoring period. The field survey must be completed by the end of the next monitoring period.(B) The following table must be used to determine the number of valves required to be monitored in the field survey. The total valve population count is all of the valves in HRVOC service that are not exempted from quarterly monitoring by §115.787 of this title and are not listed on either the difficult-to-monitor or the unsafe-to-monitor lists based on the average of the previous four quarters of monitoring. The company claimed leaker rate is the number of leaking valves found in the total valve population count based on the previous four quarters of monitoring divided by the total valve population count.Attached Graphic(C) The following alternatives may be used in lieu of subparagraph (B) of this paragraph to determine the number of valves required to be monitored in the field survey. The required sample size must be calculated using a hypergeometric distribution that characterizes sampling from a given finite population of valves without replacement and reported leaker rate. Commercially available statistical software programs may be used. The sample size must be determined according to the following requirements.(i) The total valve population count is all of the valves in HRVOC service that are not exempted from quarterly monitoring by §115.787 of this title and are not listed on either the difficult-to-monitor or the unsafe-to-monitor lists based on the average of the previous four quarters of monitoring. The company claimed leaker rate is the number of leaking valves found in the total valve population count based on the previous four quarters of monitoring divided by the total valve population count.(ii) Type I error rate must be less than or equal to 0.05. A Type I error occurs when the company claimed leaker rate accurately reflects the true proportion of leakers, yet the test falsely indicates that the true percentage of leakers is greater than reported (false positive).(iii) Type II error rate must be less than or equal to 0.20, when the minimum difference between the company's claimed leaker rate and the true population leaker rate is at least 2%. A Type II error occurs when the true leaker rate is in fact greater than the reported rate, but the test fails to so indicate (false negative). (D) The independent third-party organization shall perform the field survey in accordance with Method 21 in 40 Code of Federal Regulations Part 60, Appendix A-7 (October 17, 2000) if the majority of valves in HRVOC service are monitored according to Method 21. The independent third-party organization shall follow subsection (h) of this section if the majority of valves in HRVOC service are monitored according to the alternative work practice in §115.358 of this title.(3) The independent third-party organization shall conduct a review of all data generated by monitoring technicians in the previous quarter. This review must include:(A) identification of data patterns indicative of failure to properly implement Method 21 including, but not limited to, a review of the number of valves monitored per technician and the time between monitoring events to validate that the sampling procedures accurately reflect the requirements of Method 21 including identification of specific instances in which a monitoring technician recorded data faster than was physically possible due to the hydrocarbon gas analyzer response time and/or the time required for the technician to move to the next component; and(B) a review of records to verify that the calibration requirements of Method 21 have been properly implemented.(b) For purposes of this section, an independent third-party organization is an organization in which the owner or operator (including any subsidiary, parent company, sister company, or joint venture) of the petroleum refinery; synthetic organic chemical, polymer, resin, or methyl tert-butyl ether manufacturing process; or natural gas/gasoline processing operation has no ownership or other financial interest. If the owner or operator's routine monitoring is done by a contractor rather than by in-house monitoring, then the independent third-party organization must be a different contractor from that ordinarily used for those services.(c) The owner or operator shall submit a verbal notification to the Houston regional office and any local air pollution control agency having jurisdiction that provides the date that the independent third-party organization is scheduled to begin the audit. The notification must be submitted at least 30 days prior to the start date of the audit. The notification must also identify whether the audit will be conducted using Method 21 or the alternative work practice in §115.358 of this title.(d) The owner or operator shall furnish the Houston regional office and any local air pollution control agency having jurisdiction a copy of the results of the audit authored by the independent third-party organization within 30 days after completion of the audit requirements listed in subsection (a) of this section. The report must include:(1) the number of valves that were not tagged, but should have been tagged in accordance with §115.782(a) of this title;(2) the number of valves monitored during the field survey, the number of leaking valves found during the field survey, the percentage of leaking valves identified by the independent third-party organization during the field survey, and a detailed description of the sampling scheme used to ensure that a random sample of valves was selected so that each valve had an equal chance of being selected from the total number of valves being sampled;(3) the total number of valves in HRVOC service that are not exempted from quarterly monitoring by §115.787 of this title and are not listed on either the difficult-to-monitor or the unsafe-to-monitor lists monitored based on the average of the previous four quarters of monitoring, the total number of leaking valves found at the site by the owner or operator's contracted or usual monitoring service based on the average of the previous four quarters of monitoring, and the percentage of leaking valves based on the average of the previous four quarters of monitoring;(4) the methodology used to select the field survey sample size, and if the alternative provided in subsection (a)(2)(C) of this section was used to determine the number of valves to be sampled in the field survey, documentation must include:(A) the actual Type I and Type II error rates associated with the sample size used; and(B) a detailed description of the methodology used to calculate the sample size; and(5) a summary of the independent third-party organization's review of all data generated by monitoring technicians in the previous quarter by the owner or operator's contracted or usual monitoring service for each of the categories specified in subsection (a)(3)(A) and (B) of this section.(e) If the results of the independent third-party audit indicate deficiencies in the implementation of Method 21 or in the implementation of the alternative work practice in §115.358 of this title, the owner or operator shall submit a corrective action plan with the audit report to the Houston regional office and any local air pollution control agency having jurisdiction.(f) Authorized representatives of the executive director, United States Environmental Protection Agency, or any local air pollution control agency with jurisdiction may conduct an audit of the owner or operator's leak detection and repair program.(g) In lieu of complying with subsections (a) - (d) of this section, an owner or operator may request approval from the executive director of an alternative method that demonstrates equivalency with the independent third-party audit, provided that the request:(1) includes a detailed explanation of how the equivalency will be demonstrated, including the appropriate recordkeeping and reporting requirements that will be implemented that are sufficient to demonstrate compliance with the alternative method; and(2) demonstrates that it is a replicable procedure and details how the equivalency will be demonstrated.(h) If the owner or operator of a site subject to the third-party audit requirements of this section elects to use the alternative work practice in §115.358 of this title to monitor valves in HRVOC service, the following additional provisions will apply.(1) The field survey must be conducted as specified in subsection (a)(2) of this section, except that the independent third-party organization shall perform the field survey according to the alternative work practice in §115.358 of this title.(2) In lieu of the data review specified under subsection (a)(3) of this section, the independent third-party organization shall conduct a review of all data and video generated by the monitoring personnel in the previous monitoring interval as specified in §115.358 of this title. For example, if the frequency for performing the alternative work practice is monthly, the review includes data from the monitoring event in the prior calendar month.(A) The review must include a review of records to verify:(i) the optical gas imaging instrument meets the requirements referenced in §115.358(c)(1) of this title;(ii) the daily instrument check was performed as required by §115.358(c)(2) of this title; and(iii) monitoring personnel performing the alternative work practice have satisfied the training requirements specified in §115.358(h) of this title.(B) The review must also include identification of any:(i) instances that components were imaged at a distance greater than demonstrated during the daily instrument check;(ii) instances that the optical gas imaging instrument was not operated in accordance with the instrument manufacturer's operating parameters; and(iii) leaking components in the video records that were not identified as leaking by the routine monitoring personnel.(C) In lieu of the categories specified in subsection (a)(3)(A) and (B) of this section, the report contents specified in subsection (d)(5) of this section must include a summary of the independent third-party organization's review based on the categories specified in subparagraphs (A) and (B) of this paragraph.(3) If the owner or operator is performing a combination of Method 21 hydrocarbon gas analyzer monitoring according to §115.781 of this title (relating to General Monitoring and Inspection Requirements) and the alternative work practice according to §115.358 of this title on different valves in HRVOC service, the field survey and data review must be performed based on how the majority of valves in HRVOC service were monitored in the evaluation period of the third party audit (e.g., if greater than 50% of valves in HRVOC service were monitored according to the alternative work practice, then the field survey and data review must be conducted according to this subsection). The population of valves used for the field survey in subsection (a)(2) of this section must only include those valves monitored according to the method (i.e., Method 21 or alternative work practice) that will be used in the field survey.(i) Upon review of the audit results, the executive director may specify additional corrective actions beyond any potential corrective actions submitted in the documentation required under subsection (e) of this section.</content><note type="source"><p>Source Note: The provisions of this §115.788 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective December 23, 2004, 29 TexReg 11623; amended to be effective June 24, 2010, 35 TexReg 5293.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scH/s115.789"><num value="115.789">§115.789</num><heading>Counties and Compliance Schedules</heading><content>The owner or operator of each petroleum refinery; synthetic organic chemical, polymer, resin, or methyl tert-butyl ether manufacturing process; or natural gas/gasoline processing operation in Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties shall demonstrate compliance with the requirements of this division (relating to Fugitive Emissions) in accordance with the following schedule.(1) The initial monitoring of all components for which monitoring is required under this division, but are not required to be monitored under Subchapter D, Division 3 of this chapter (relating to Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas), must occur as soon as practicable, but no later than March 31, 2004, except that:(A) the schedule in §115.781(f) of this title (relating to General Monitoring and Inspection Requirements) applies to blind flanges, caps, or plugs at the end of a pipe or line containing highly-reactive volatile organic compounds, sight glasses, meters, gauges, connectors, bolted manways, heat exchanger heads, hatches, and sump covers for which the owner or operator has notified the appropriate regional office and any local air pollution control program with jurisdiction that §115.781(f) of this title will be used to establish the monitoring schedule for these components; and(B) on or before March 31, 2004, the owner or operator shall notify the appropriate regional office and any local air pollution control program with jurisdiction that §115.781(f) of this title will be used to establish the monitoring schedule for blind flanges, caps, or plugs at the end of a pipe or line containing highly-reactive volatile organic compounds, sight glasses, meters, gauges, connectors, bolted manways, heat exchanger heads, hatches, and sump covers. The owner or operator shall monitor all of these components at least one time in each process unit by April 1, 2006, and then conduct subsequent monitoring at the frequencies noted in §115.781(f) of this title. For those process units with an initial start-up date after March 31, 2004, the notification of the intent to use §115.781(f) of this title shall be made within 60 days after the initial start-up date. In this case, the owner or operator shall monitor all of these components at least one time in each process unit within one year of the initial start-up date, and then conduct subsequent monitoring at the frequencies noted in §115.781(f) of this title.(2) All requirements in §115.782 of this title (relating to Procedures and Schedule for Leak Repair and Follow-up) and all equipment upgrades required by §115.783 of this title (relating to Equipment Standards) must be made as soon as practicable, but no later than March 31, 2004, except that control devices used to comply with the requirements of §115.783(2) of this title must be in compliance in accordance with §115.729 of this title (relating to Counties and Compliance Schedules).(3) The initial independent third-party audit required by §115.788 of this title (relating to Audit Provisions) shall be completed and the results of the audit submitted to the executive director as soon as practicable, but no later than December 31, 2005.(4) Compliance with the recordkeeping required by §115.786 of this title (relating to Recordkeeping Requirements) must be implemented and made available upon request to authorized representatives of the executive director, United States Environmental Protection Agency, or any local air pollution control agency having jurisdiction as soon as practicable, but no later than March 31, 2004.(5) The initial monitoring of pump seals and compressor seals using a leak definition of 500 parts per million by volume, as required by §115.781(b)(9) of this title, must begin as soon as practicable, but no later than March 31, 2004.</content><note type="source"><p>Source Note: The provisions of this §115.789 adopted to be effective January 17, 2003, 28 TexReg 113; amended to be effective November 13, 2003, 28 TexReg 9835; amended to be effective December 23, 2004, 29 TexReg 11623.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c115/scJ"><num value="J">SUBCHAPTER J</num><heading>ADMINISTRATIVE PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.901"><num value="115.901">§115.901</num><heading>Insignificant Emissions</heading><content>For persons in covered attainment counties that consist of Aransas, Bexar, Calhoun, Matagorda, San Patricio, and Travis Counties, the executive director, after consultation with appropriate local governmental agencies, may exempt a specific compound or a specific vent gas stream from the application of this chapter if the executive director determines that the emissions from the compound or specific vent gas stream will not make a significant contribution to air contaminants in the atmosphere. This section no longer applies in Bexar County after December 31, 2024.</content><note type="source"><p>Source Note: The provisions of this §115.901 adopted to be effective August 9, 1994, 19 TexReg 5719; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.910"><num value="115.910">§115.910</num><heading>Availability of Alternate Means of Control</heading><content>(a) Any person affected by a control requirement and/or emission specification of this chapter may request approval of an alternate means of control (AMOC) plan using the procedures established in §115.913 of this title (relating to Procedures for Alternate Means of Control Plan Submittal). Such AMOC plan shall be approved if it is demonstrated that the plan meets all applicable criteria and procedures of §§115.911 - 115.913, 115.915, and 115.916 of this title (relating to Criteria for Approval of Alternate Means of Control Plans; Calculations for Determining Alternate Means of Control Reductions; Procedures for Alternate Means of Control Plan Submittal; Public Notice Format; and Review of Approved Alternate Means of Control Plans and Termination of Alternate Means of Control Plans). The AMOC plans not satisfying the requirements of this division (relating to Alternate Means of Control) may apply for a site-specific State Implementation Plan revision approved by the executive director and EPA.(b) An AMOC applicant may apply to the executive director for a waiver of portions of §115.913 of this title which may not apply to a single-source AMOC application and for §115.914 and §115.915 of this title (relating to Procedures for an Alternate Means of Control Plan Approval; and Public Notice Format). A single-source AMOC application is one that proposes only the substitution of one control device for another.(c) Application for an AMOC plan does not stay enforcement of regulations of this chapter.(d) Any violation of an AMOC plan shall be subject to enforcement action as a violation of this chapter.</content><note type="source"><p>Source Note: The provisions of this §115.910 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective August 9, 1994, 19 TexReg 5719; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.911"><num value="115.911">§115.911</num><heading>Criteria for Approval of Alternate Means of Control Plans</heading><content>An alternate means of control (AMOC) plan shall be approved if it meets each of the following criteria, as applicable.(1) All facilities covered by the AMOC plan are and remain in the same account number.(2) The AMOC plan must propose annual emission limits in tons per year for each source in the AMOC plan that, when collectively compared against actual annual emissions generated in 1990 (or subsequent years if a source in an AMOC was not operational prior to 1990), result in net emissions reductions equal to or greater than reductions that would be achieved if each source complied with all applicable requirements of this chapter.(3) If the AMOC plan involves any source with a proposed annual emission limit which exceeds the baseline as defined in §115.912(a) of this title (relating to Calculations for Determining Alternate Means of Control Reductions), the AMOC plan must provide additional reductions made at alternative sources which comply with the guidelines in §115.912 of this title and are at least equal to the amount the source exceeds its baseline, multiplied by the applicable factor provided in the following subparagraphs.(A) For sources located in the Beaumont-Port Arthur area, as defined in §115.10 of this title (relating to Definitions), the applicable factor is 1.2.(B) For sources located in the Dallas-Fort Worth area, as defined in §115.10 of this title, the applicable factor is 1.3.(C) For sources located in the El Paso area, as defined in §115.10 of this title, the applicable factor is 1.2.(D) For sources located in the Houston-Galveston-Brazoria area, as defined in §115.10 of this title, the applicable factor is 1.3.(E) For sources located in the Bexar County area, as defined in §115.10 of this title, the applicable factor is 1.15.(F) For sources located in other areas in Texas, the applicable factor is 1.1.(4) The AMOC application must demonstrate that the sum of the maximum daily potentials to emit from the sources subject to the proposed AMOC plan shall not be more than 200 pounds per day greater than the sum of the maximum daily potentials to emit from those sources if the emissions were controlled in accordance with this chapter. For each nonattainment area, the executive director shall establish a limit upon the sum of the increases of the maximum daily potentials to emit from all AMOC plans in the nonattainment area. The limit shall be set so that the sum of the maximum daily potentials to emit shall not increase the measurable or modeled ozone level by one part per billion.(5) The AMOC must be implemented and reductions created after January 1, 1991.(6) Reductions in actual emissions accounted for in the AMOC plan must be surplus and remain surplus to reductions required by this chapter and any netting or offsetting requirements of §§116.150, 116.151, 116.160, and 116.161 of this title (relating to New Major Source or Major Modification in Ozone Nonattainment Areas; New Major Source or Major Modification in Nonattainment Area Other Than Ozone; Prevention of Significant Deterioration Requirements; and Source Located in an Attainment Area with a Greater Than De Minimis Impact). Reductions for which the state has claimed credit in a State Implementation Plan may not be utilized as reductions in an AMOC plan.(7) Mobile sources and indirect sources (Federal Clean Air Act, §110(a)(5)(C)) shall not be included in the AMOC plan.(8) For purposes of demonstrating reductions and establishing emission limits in any AMOC plan, quantification of emissions must be accomplished using any of the following methods as specified by the executive director:(A) test methods approved by the executive director for the direct measurement of emissions, either continuously or periodically;(B) calculation equations which are a function of process or control system parameters, activity levels, and/or throughput or production rates;(C) mass-balance calculations which are a function of inventory, usage, and/or disposal records;(D) other appropriate methods acceptable to the executive director; or(E) any combination of these approaches.(9) The AMOC plan must establish emission limits and/or control requirements for all sources in the plan which render the proposed annual emission limits enforceable.(10) The AMOC plan must include all necessary and appropriate provisions for monitoring, testing, reporting, and recordkeeping as specified by the executive director. The frequency of AMOC required monitoring, testing, reporting, and recordkeeping shall be sufficient to reasonably ensure compliance with applicable emission limits and/or control requirements. The monitoring, testing, reporting, and recordkeeping shall be at least as reliable, readily retrievable, and retained for a comparable period of time as the underlying requirements of this chapter.(A) If this chapter includes monitoring, testing, reporting, and/or recordkeeping requirements for sources of the type(s) to be covered by an alternate emission limitation and/or control requirement, then such requirement may be used to render the AMOC plan enforceable. If this chapter does not include readily transferable monitoring, testing, reporting, and/or recordkeeping requirements for sources of the type(s) to be covered by an alternate emission limitation and/or control requirement, then priority may be given to any such set of requirements adopted under other commission rules for the control of volatile organic compounds (VOC) emissions from sources of the type(s) to be covered by an alternate emission limitation and/or control requirement.(B) If this chapter includes emission limits and/or control requirements for sources of the type(s) to be covered by an alternate emission limitation and/or control requirement, then such alternative emission limitation and/or control requirement may be based on the same averaging time as is applied to those same type sources under this chapter. If this chapter does not include emission limitations and/or control requirements for sources of the type(s) to be covered by an alternate emission limit and/or control requirement, then priority may be given to averaging times for emission limits and/or control requirements on similar units governed by other commission rules limiting VOC emissions from sources of the type(s) to be covered by an alternate emission limit and/or control requirement.(C) If no such commission monitoring, testing, reporting, and/or recordkeeping rules have been adopted that satisfy the criteria of subparagraphs (A) and (B) of this paragraph, then such requirements or averaging times shall be established on a case-by-case basis.(D) Additional or more frequent monitoring, testing, reporting, and/or recordkeeping may be required by the executive director to ensure the integrity of any AMOC plan.</content><note type="source"><p>Source Note: The provisions of this §115.911 adopted to be effective August 9, 1994, 19 TexReg 5719; amended to be effective May 16, 2002, 27 TexReg 4113; amended to be effective May 16, 2024, 49 TexReg 3292.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.912"><num value="115.912">§115.912</num><heading>Calculations for Determining Alternate Means of Control Reductions</heading><content>(a) For purposes of this section, a source's baseline is defined as the annual emissions that are calculated assuming full compliance with the adopted requirements of this chapter and using data representative of actual operations in 1990 or thereafter for all variables necessary to calculate annual emissions for the identified source.(1) For an alternate means of control (AMOC) application exclusively utilizing a source that existed prior to January 1, 1990, the AMOC application shall use data representative of actual operations in 1990.(2) For an AMOC application utilizing a source that was created on or after January 1, 1990, the AMOC application shall use data representative of actual operations for the two years prior to the application for the AMOC, or other representative years, as determined by the executive director.(3) For an AMOC application utilizing a source exempted from this chapter or with no applicable adopted requirements, or for a source whose actual annual emissions were less than the annual emissions calculated assuming full compliance with the adopted requirements, calculations will be based on actual annual emissions.(b) The AMOC applicant shall determine annual emissions limits for each source included in the AMOC plan by utilizing the best available data and good engineering practice, which may include the use of statistical techniques to address variations in the data.(c) For any source not controlled as otherwise specifically required by this chapter where an applicable adopted requirement exists, the AMOC applicant shall calculate credits needed by subtracting the source's baseline from the source's annual emissions limit under the AMOC plan. This difference shall then be multiplied by the appropriate factor in §115.911(3) of this title (relating to Criteria for Approval of Alternate Means of Control Plans), to determine the credits that must be generated by other sources.(d) For a source controlled beyond the requirements of this chapter, or for a source exempted from or with no applicable adopted control requirement in this chapter, the AMOC applicant shall calculate the amount of emission reduction credits generated by subtracting the source's annual emissions limit under the AMOC plan from the source's baseline, less any reductions that are generated for purposes discussed in §115.911(6) of this title.(e) For all sources included in the AMOC plan, the AMOC applicant will sum the total of credits needed and the total of credits generated to establish that the credits generated exceed the credits needed.(f) The maximum potential to emit shall be the maximum daily emissions that the source could emit subject to any physical, operational and regulatory limitations.</content><note type="source"><p>Source Note: The provisions of this §115.912 adopted to be effective August 9, 1994, 19 TexReg 5719; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.913"><num value="115.913">§115.913</num><heading>Procedures for Alternate Means of Control Plan Submittal</heading><content>(a) All persons requesting an alternate means of control (AMOC) plan as provided by §115.910 of this title (relating to Availability of Alternate Means of Control) shall submit a proposed AMOC plan and demonstration to the executive director; copies of such plan and demonstration to the appropriate regional office; copies to any local air pollution control program with jurisdiction over the account affected by the AMOC plan; and copies to the EPA regional office.(b) The proposed AMOC plan shall include the following information:(1) the AMOC applicant name with mailing address, site name with physical address, account number, and contact person including address and telephone number;(2) an identification and a description of the sources involved in the AMOC plan including any applicable air permit numbers, plot plans, detailed flow diagrams, emission point numbers (EPNs), and facility identification numbers (FINs); an identification of the provisions of this chapter that are applicable to such sources; and an identification of promulgated provisions of this chapter that will be applicable to such sources; and a description of normal operating conditions for each source causing emissions;(3) a quantification of the AMOC plan sources' actual emissions for the selected year;(4) a quantification of annual emission limits and daily maximum potential emissions from all sources affected by the AMOC showing the difference between projected emissions from the affected source(s) without the AMOC plan and projected emissions resulting under the proposed AMOC plan. These calculations shall be done in accordance with the requirements of §115.912 of this title (relating to Calculations for Determining Alternate Means of Control Reductions). Assumptions and emission factors utilized in the calculations shall be included;(5) a specification of emission limitation(s) and control requirement(s) to be applicable to each source affected by the proposed AMOC plan. Emission limitations shall include actual annual emission limits in tons per year for each source. Control requirements must be established for each source to make annual emission limits enforceable;(6) a description of the compliance methodologies, including monitoring, testing, reporting, and recordkeeping measures, that will be used to enforce the emission limitation(s) and/or control requirement(s) applicable to each source affected by the AMOC plan;(7) a sample of reporting and recordkeeping forms to be utilized;(8) a demonstration that the AMOC plan satisfies each applicable requirement of §115.911 of this title (relating to Criteria for Approval of Alternative Means of Control Plans);(9) a list containing the name, address, and telephone number of any air pollution control program with jurisdiction over the account affected by the AMOC plan; and(10) any other relevant information necessary to evaluate the merits and/or enforceability of the AMOC plan, as may be requested by the executive director.(c) All representations with regard to the AMOC plan, as well as any provisions attached to the AMOC plan, become conditions upon which the subsequent AMOC plan is issued. It shall be unlawful for any person to vary from such representation or provision if the change will cause a change in the method of control of emissions, the character of the emissions, or will result in an increase in the discharge of the various emissions. It shall also be unlawful for any AMOC holder to vary from the emission limits, control requirements, monitoring, testing, reporting, or recordkeeping requirements of an approved AMOC plan.(d) Applications to amend or revise an AMOC plan shall be submitted subject to the requirements of this chapter.</content><note type="source"><p>Source Note: The provisions of this §115.913 adopted to be effective August 9, 1994, 19 TexReg 5719; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.914"><num value="115.914">§115.914</num><heading>Procedures for an Alternate Means of Control Plan Approval</heading><content>Upon a preliminary determination to approve or deny the proposed alternative means of control (AMOC) plan, the executive director shall, in writing, so notify the submitter of the plan, any local air pollution control program with jurisdiction over the account affected by the AMOC plan, and the EPA regional office.(1) If the executive director makes a preliminary determination to approve the AMOC plan, then this notice shall include a copy of the AMOC plan as preliminarily approved.(2) If the executive director makes a determination to deny the AMOC plan, then the notice shall include a description of the reasons for such determination of denial. This determination shall constitute a final action of the executive director appealable to the commission as provided in paragraph (7) of this section.(3) Upon receipt of notice from the executive director that the AMOC plan has received preliminary approval, the AMOC applicant, at the applicant's own expense, shall cause to be published notice of the applicant's intent to obtain an AMOC plan and of the opportunity to submit written comments. Notice shall be consistent with §115.915 of this title (relating to Public Notice Format).(4) The executive director shall consider and prepare a written response to all significant and timely written comments filed in connection with an AMOC plan.(5) In response to the written comments, the executive director may modify the provisions of the AMOC plan, deny the AMOC plan, or approve the AMOC plan without changes.(6) The executive director shall send written notice of his/her final determination concerning each AMOC plan to the submitter of the plan, the EPA regional office, any local pollution control program with jurisdiction over the account affected by the AMOC plan, and to each person who submitted timely written comments. Such notice shall include final AMOC plan provisions, a copy of the response to comments, and an announcement of the opportunity to appeal the executive director's determination to the commission. The notice required by this subsection shall be sent by a means evidencing receipt.(7) Any person entitled to notice under paragraph (6) of this section may, within 15 days of the receipt of such notice, file with the executive director an appeal of the final determination on the AMOC plan. Such appeal shall be considered at the next regularly scheduled meeting of the commission for which adequate notice may be made. Based on arguments submitted to the commission during such appeal, the commission may remand the AMOC determination to the executive director, deny the AMOC plan, or issue the AMOC plan unchanged.(8) Within 45 days of final approval of the AMOC plan by the executive director, EPA may notify the commission of EPA's disapproval of the executive director's final decision. Such notification shall be in writing and shall include a statement of the reason(s) for the disapproval and a specific listing of changes to the AMOC plan that must be made in order to overcome the disapproval. Any time prior to the expiration of the 45-day period, EPA may notify the executive director that no disapproval is forthcoming. Upon receipt of a timely EPA disapproval, the executive director shall void or revise the AMOC plan, and reissue the notice as required by paragraph (6) of this section.(9) If no appeal of the executive director's decision to approve the AMOC plan is filed pursuant to paragraph (7) of this section, the AMOC plan becomes effective upon the acceptance of the plan by EPA as described in paragraph (11) of this section.(10) If an appeal of the executive director's decision is filed, the AMOC plan becomes effective upon the latter of the acceptance of the AMOC plan by the commission or the acceptance of the AMOC plan by EPA.(11) EPA acceptance is defined as explicit approval of the AMOC plan by EPA, notification by EPA to the executive director that no EPA disapproval is forthcoming, or failure of EPA to file notice of disapproval within 45 days after the executive director's final decision to approve the AMOC plan.</content><note type="source"><p>Source Note: The provisions of this §115.914 adopted to be effective August 9, 1994, 19 TexReg 5719; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.915"><num value="115.915">§115.915</num><heading>Public Notice Format</heading><content>(a) Public notice shall be published in the public notice section of two successive issues of a newspaper of general circulation in or closest to the municipality in which the facility with the account affected by the alternative means of control (AMOC) plan is located.(b) Public notice shall contain the following information:(1) AMOC plan application number assigned by the executive director;(2) AMOC applicant name;(3) type of facility;(4) a description of the location of the facility;(5) a brief description of the AMOC plan;(6) the executive director's preliminary determination to approve such plan;(7) the locations and availability of copies of the proposed AMOC plan, related documentation, and the executive director's preliminary analysis of the plan (including the Austin and appropriate regional offices, any local pollution control program with jurisdiction over the account affected by the AMOC plan, and the EPA regional office);(8) an announcement of the opportunity to submit written comments on the AMOC plan;(9) the length of the public comment period (30 days from the final publication of this notice);(10) the procedure for submission of written public comments concerning the proposed AMOC plan; and(11) the name, address, and phone number of the regional office to be contacted for further information.(c) The AMOC plan submitter shall provide proof of adequate notice to the executive director, EPA, and any local pollution control program with jurisdiction over the account affected by the AMOC plan before the executive director may take final action on the AMOC plan.</content><note type="source"><p>Source Note: The provisions of this §115.915 adopted to be effective August 9, 1994, 19 TexReg 5719; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.916"><num value="115.916">§115.916</num><heading>Review of Approved Alternate Means of Control Plans and Termination of Alternate Means of Control Plans</heading><content>(a) For the purposes of this division (relating to Alternate Means of Control), "compliance date" shall mean the date by which a source must comply with new or modified sections of this chapter.(b) Unless revised to reflect new regulatory requirements, an alternative means of control (AMOC) plan becomes void on the compliance date specified for a new or modified section of this chapter affecting a source subject to an AMOC plan.(c) The holder of an AMOC plan shall comply with the requirements of this chapter if the AMOC plan becomes void.(d) Upon final approval of an AMOC plan, the owner or operator of the facilities affected by such plan shall keep a copy of the plan on the site affected by the plan and shall make the plan available upon request to representatives of the executive director, EPA, or any local air pollution control agency having jurisdiction in the area.(e) Upon request, each holder of an AMOC plan shall submit to the executive director a demonstration that the plan continues to meet all applicable criteria of this division.(f) An AMOC holder is responsible for obtaining a new AMOC plan prior to the compliance date of any new or modified regulation of this chapter that affects a source subject to an AMOC plan.</content><note type="source"><p>Source Note: The provisions of this §115.916 adopted to be effective August 9, 1994, 19 TexReg 5719; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.920"><num value="115.920">§115.920</num><heading>Applicability</heading><content>Any person affected by any control requirement of this chapter may apply to the executive director for a six-year extension of the compliance date for the control requirements imposed by any section of this chapter adopted after July 9, 1993, provided that the owner or operator of the affected sources has an approved early reduction application for those sources for which the owner or operator is seeking an extension as specified in 40 Code of Federal Regulations §63.79, and for which:(1) volatile organic compound (VOC) emissions reductions were made after January 1, 1991, and are greater than or equal to the reductions which would be achieved by implementing the applicable method of control specified in this chapter;(2) the alternate VOC emissions reductions are verifiable through testing or calculation methods which conform to good engineering practice and which are approvable by the executive director, and represent reductions in the actual emissions from the base year 1990, provided there is no evidence that emissions in the base year 1990 are artificially inflated or substantially greater than emissions in other years prior to implementation of emissions reduction measures;(3) the alternate VOC reductions created by the Early Reductions Program must be surplus to reductions required by this chapter and any netting or offsetting requirements of §116.150 of this title (relating to New Major Source or Major Modification in Ozone Nonattainment Areas) and §116.161 of this title (relating to Source Located in an Attainment Area with a Greater Than De Minimis Impact); and(4) the sources in the early reduction application may be restricted to the grouping of the same type of emissions sources based upon determination by the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.920 adopted to be effective August 9, 1994, 19 TexReg 5730; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.923"><num value="115.923">§115.923</num><heading>Documentation</heading><content>(a) For each source requesting a six-year extension of the compliance date for control requirements in accordance with §115.920 of this title (relating to Applicability), there shall be established an Early Reductions Plan reflecting the emission reduction for VOC which qualifies the source for the six-year extension. In lieu of preparing a site-specific State Implementation Plan (SIP) for such Early Reductions Plan, a facility owner or operator shall comply with the requirements of this division (relating to Early Reductions).(b) Documentation required for approval of the extension shall demonstrate to the satisfaction of the executive director that emissions data for the identified source reflects verifiable data based on information for such source. Documentation shall include but is not limited to:(1) a listing and description of controlled equipment;(2) a listing of postponed required controls;(3) a listing of uncontrolled emissions identified in the 1990 Emission Inventory;(4) specific facility identification number(s) (FIN);(5) specific emission point number(s) (EPN);(6) account number(s);(7) identification of applicable permit number(s);(8) calculation(s), test data, and test methods for all VOC emissions associated with each identified source pertaining to paragraphs (1) and (2) of this subsection including an explanation;(9) calculation(s), test data, and test methods for VOC reductions as compared to the 1990 Emission Inventory;(10) an emission limitation; and(11) any other relevant information necessary to evaluate the merits and/or enforceability of the Early Reduction Plan, as may be requested by the executive director.</content><note type="source"><p>Source Note: The provisions of this §115.923 adopted to be effective August 9, 1994, 19 TexReg 5730; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.930"><num value="115.930">§115.930</num><heading>Compliance Dates</heading><content>For all counties affected by this chapter, the final compliance dates for revisions to control requirements are given within the section relating to counties and compliance schedules in each division if the final compliance date of any provision is after the date of adoption of the current revision to this chapter. If the compliance dates are not specified for any provision, the compliance date is past and all affected persons must be and remain in compliance with the provision as of the original compliance date.</content><note type="source"><p>Source Note: The provisions of this §115.930 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.932"><num value="115.932">§115.932</num><heading>Control Plan Procedure</heading><content>Within 30 days of a request by the executive director, the owner or operator of any facility affected by the requirements of any division in this chapter shall submit a control plan for compliance which includes the compliance status of all emission controls required by this chapter, and a detailed description of the method to be followed to achieve compliance, specifying the exact dates by which the following steps will be taken to achieve compliance:(1) dates by which contracts for emission control systems process modifications will be awarded, or dates by which orders will be issued for the purchase of component parts to accomplish emission control or process modification;(2) date of initiation of on-site construction or installation of emission control equipment or process change;(3) date by which on-site construction or installation of emission control equipment or process modification is to be completed; and(4) date by which final compliance is to be achieved. Initial compliance testing shall be conducted no later than 180 days after the compliance deadline.</content><note type="source"><p>Source Note: The provisions of this §115.932 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.934"><num value="115.934">§115.934</num><heading>Control Plan Deviation</heading><content>No persons affected by §115.932 of this title (relating to Control Plan Procedure) shall deviate from the terms of the control plans including the date for final compliance and the dates for accomplishing the required steps in such plans. The executive director may, upon application of any person affected, change the date for accomplishing the required steps in a plan. Any control plan that specifies a final compliance date subsequent to the date specified by any sections of this chapter must be approved by the executive director. Approval of a delayed compliance order by the executive director does not constitute satisfaction of all federal requirements nor eliminate the need for EPA approval.</content><note type="source"><p>Source Note: The provisions of this §115.934 adopted to be effective February 19, 1990, 15 TexReg 549; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.936"><num value="115.936">§115.936</num><heading>Reporting Procedure</heading><content>After a final control plan for compliance has been submitted to the executive director, progress reports shall be submitted every 90 days for all control plans specified in §115.932 of this title (relating to Control Plan Procedure). The executive director shall also be notified of the completion of each separate step in the control plan within five days after completion. All reports and notifications shall be submitted in writing by the person submitting the compliance control plan.</content><note type="source"><p>Source Note: The provisions of this §115.936 adopted to be effective February 19, 1990, 15 TexReg 549.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.940"><num value="115.940">§115.940</num><heading>Equivalency Determination</heading><content>Upon final adoption of any volatile organic compound program of general applicability by EPA, the executive director may review the provisions of the EPA program and the corresponding state program to determine the essential equivalency of the two programs. If the executive director determines that the EPA program is essentially equivalent to the requirements for this chapter, the executive director will state by notice published in the Texas Register that the regulated community will be considered to be in compliance with the new EPA program if they are in compliance with the applicable provisions of this chapter. Conversely, the regulated community will be considered to be in compliance with the applicable provisions of this chapter if they are in compliance with the new EPA program. Notice of intent to publish such equivalency determination shall be provided to the appropriate EPA regional office 45 days prior to publication. The executive director shall review any objection from EPA prior to final publication. Each affected company must file a notice of intent to inform the state which program they intend to use. The executive director will then inform the EPA regional office of each notice of intent.</content><note type="source"><p>Source Note: The provisions of this §115.940 adopted to be effective December 3, 1993, 18 TexReg 8538; amended to be effective May 16, 2002, 27 TexReg 4113.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c115/scJ/s115.950"><num value="115.950">§115.950</num><heading>Use of Emissions Credits for Compliance</heading><content>(a) An owner or operator may meet the emission control requirements of this chapter, in whole or in part, by obtaining emission reduction credits (ERCs), mobile emission reduction credits (MERCs), discrete emission reduction credits (DERCs), or mobile discrete emission reduction credits (MDERCs) in accordance with this section and Chapter 101, Subchapter H, Division 1 of this title (relating to Emission Credit Banking and Trading) or Chapter 101, Subchapter H, Division 4 of this title (relating to Discrete Emission Reduction Banking and Trading). For the purposes of this section, the term "RC" refers to an ERC, MERC, DERC, or MDERC, whichever is applicable. (b) Any lower volatile organic compound (VOC) emission specification established under this chapter for the unit or units using RCs shall require the user of the RCs to obtain additional RCs in accordance with Chapter 101, Subchapter H, Division 1 of this title or Chapter 101, Subchapter H, Division 4 of this title and/or otherwise reduce emissions prior to the effective date of such rule change. The owner or operator of the unit(s) currently using RCs shall calculate the necessary emission reductions per unit as follows. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §115.950 adopted to be effective December 23, 1997, 22 TexReg 12532; amended to be effective January 18, 2001, 26 TexReg 523.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c116"><num value="116">CHAPTER 116</num><heading>CONTROL OF AIR POLLUTION BY PERMITS FOR NEW CONSTRUCTION OR MODIFICATION</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c116/scA"><num value="A">SUBCHAPTER A</num><heading>DEFINITIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c116/scA/s116.10"><num value="116.10">§116.10</num><heading>General Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, and in §101.1 of this title (relating to Definitions), the following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Best available control technology (BACT)--An air pollution control method for a new or modified facility that through experience and research, has proven to be operational, obtainable, and capable of reducing or eliminating emissions from the facility, and is considered technically practical and economically reasonable for the facility. The emissions reduction can be achieved through technology such as the use of add-on control equipment or by enforceable changes in production processes, systems, methods, or work practice.(2) Dockside vessel--Any water-based transportation, platforms, or similar structures which are connected or moored to the land.(3) Dockside vessel emissions--Those emissions originating from a dockside vessel that are the result of functions performed by onshore facilities or using onshore equipment. These emissions include, but are not limited to:(A) loading and unloading of liquid bulk materials;(B) loading and unloading of liquified gaseous materials;(C) loading and unloading of solid bulk materials;(D) cleaning and degassing of liquid vessel compartments; and(E) abrasive blasting and painting.(4) Facility--A discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a stationary source, including appurtenances other than emission control equipment. A mine, quarry, well test, or road is not a facility.(5) Federally enforceable--All limitations and conditions which are enforceable by the United States Environmental Protection Agency (EPA), including:(A) those requirements developed under Title 40 of the Code of Federal Regulations (CFR) Parts 60 and 61 (40 CFR Parts 60 and 61);(B) Chapter 113, Subchapter C of this title (relating to National Emission Standards for Hazardous Air Pollutants for Source Categories (FCAA, §112, 40 CFR Part 63));(C) requirements within any applicable state implementation plan (SIP);(D) any permit requirements established under 40 CFR §52.21;(E) any permit requirements established under regulations approved under 40 CFR Part 51, Subpart I, including permits issued under the EPA-approved program that is incorporated into the SIP and that expressly requires adherence to any permit issued under such program; or(F) any permit requirements established under Subchapter E of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)).(6) Grandfathered facility--Any facility that is not a new facility and has not been modified since August 30, 1971.(7) Lead smelting plant--Any facility which produces purified lead by melting and separating lead from metal and nonmetallic contaminants and/or by reducing oxides into elemental lead. Raw materials consist of lead concentrates, lead-bearing ores or lead scrap, drosses, or other lead-bearing residues. Additional processing may include refining and alloying. A facility which only remelts lead bars or ingots for casting into lead products is not a lead smelting plant.(8) Maximum allowable emissions rate table (MAERT)--A table included with a preconstruction permit issued under this chapter that contains the allowable emission rates established by the permit for a facility.(9) Modification of existing facility--Any physical change in, or change in the method of operation of, a facility in a manner that increases the amount of any air contaminant emitted by the facility into the atmosphere or that results in the emission of any air contaminant not previously emitted. The term does not include:(A) insignificant increases in the amount of any air contaminant emitted that is authorized by one or more permits by rule under Chapter 106 of this title (relating to Permits by Rule);(B) maintenance or replacement of equipment components that do not increase or tend to increase the amount or change the characteristics of the air contaminants emitted into the atmosphere;(C) an increase in the annual hours of operation unless the existing facility has received a preconstruction permit or has been exempted, under the TCAA, §382.057, from preconstruction permit requirements;(D) a physical change in, or change in the method of operation of, a facility that does not result in a net increase in allowable emission of any air contaminant and that does not result in the emission of any air contaminant not previously emitted, provided that the facility:(i) has received a preconstruction permit or permit amendment or has been exempted under the TCAA, §382.057, from preconstruction permit requirements no earlier than 120 months before the change will occur; or(ii) uses, regardless of whether the facility has been exempted under the TCAA, §382.057, an air pollution control method that is at least as effective as the BACT that the commission required or would have required for a facility of the same class or type as a condition of issuing a permit or permit amendment 120 months before the change will occur;(E) a physical change in, or change in the method of operation of, a facility where the change is within the scope of a flexible permit or a multiple plant permit; or(F) a change in the method of operation of a natural gas processing, treating, or compression facility connected to or part of a natural gas gathering or transmission pipeline which does not result in an annual emission rate of any air contaminant in excess of the volume emitted at the maximum designed capacity, provided that the facility is one for which:(i) construction or operation started on or before September 1, 1971, and at which either no modification has occurred after September 1, 1971, or at which modifications have occurred only under Chapter 106 of this title; or(ii) construction started after September 1, 1971, and before March 1, 1972, and which registered in accordance with TCAA, §382.060, as that section existed prior to September 1, 1991.(10) New facility--A facility for which construction is commenced after August 30, 1971, and no contract for construction was executed on or before August 30, 1971, and that contract specified a beginning construction date on or before February 29, 1972.(11) New source--Any stationary source, the construction or modification of which is commenced after March 5, 1972.(12) Nonattainment area--A defined region within the state which is designated by the EPA as failing to meet the national ambient air quality standard for a pollutant for which a standard exists. The EPA will designate the area as nonattainment under the provisions of FCAA, §107(d).(13) Public notice--The public notice of application for a permit as required in this chapter.(14) Qualified facility--An existing facility that satisfies the criteria of either paragraph (9)(D)(i) or (ii) of this section.(15) Source--A point of origin of air contaminants, whether privately or publicly owned or operated.</content><note type="source"><p>Source Note: The provisions of this §116.10 adopted to be effective July 8, 1998, 23 TexReg 6973; amended to be effective September 4, 2000, 25 TexReg 8668; amended to be effective June 12, 2002, 27 TexReg 4954; amended to be effective September 12, 2002, 27 TexReg 8546; amended to be effective October 7, 2010, 35 TexReg 8944.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scA/s116.12"><num value="116.12">§116.12</num><heading>Nonattainment and Prevention of Significant Deterioration Review Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms that are defined by the TCAA, and in §101.1 of this title (relating to Definitions), the following words and terms, when used in Subchapter B, Divisions 5 and 6 of this chapter (relating to Nonattainment Review Permits and Prevention of Significant Deterioration Review); and Subchapter C, Division 1 of this chapter (relating to Plant-Wide Applicability Limits), have the following meanings, unless the context clearly indicates otherwise.(1) Actual emissions--Actual emissions as of a particular date are equal to the average rate, in tons per year, at which the unit actually emitted the pollutant during the 24-month period that precedes the particular date and that is representative of normal source operation, except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a plant-wide applicability limit. Instead, paragraph (3) of this section relating to baseline actual emissions shall apply for this purpose. The executive director shall allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period. The executive director may presume that the source-specific allowable emissions for the unit are equivalent to the actual emissions, e.g., when the allowable limit is reflective of actual emissions. For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.(2) Allowable emissions--The emissions rate of a stationary source, calculated using the maximum rated capacity of the source (unless the source is subject to federally enforceable limits that restrict the operating rate, or hours of operation, or both), and the most stringent of the following:(A) the applicable standards specified in 40 Code of Federal Regulations Part 60 or 61;(B) the applicable state implementation plan emissions limitation including those with a future compliance date; or(C) the emissions rate specified as a federally enforceable permit condition including those with a future compliance date.(3) Baseline actual emissions--The rate of emissions, in tons per year, of a federally regulated new source review pollutant.(A) For any existing electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the five-year period immediately preceding when the owner or operator begins actual construction of the project. The executive director shall allow the use of a different time period upon a determination that it is more representative of normal source operation.(B) For an existing facility (other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons per year, at which the facility actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the ten-year period immediately preceding either the date the owner or operator begins actual construction of the project, or the date a complete permit application is received for a permit. The rate shall be adjusted downward to exclude any emissions that would have exceeded an emission limitation with which the major stationary source must currently comply with the exception of those required under 40 Code of Federal Regulations Part 63, had such major stationary source been required to comply with such limitations during the consecutive 24-month period.(C) For a new facility, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of such unit shall equal zero; and for all other purposes during the first two years following initial operation, shall equal the unit's potential to emit.(D) The actual average rate shall be adjusted downward to exclude any non-compliant emissions that occurred during the consecutive 24-month period. For each regulated new source review pollutant, when a project involves multiple facilities, only one consecutive 24-month period must be used to determine the baseline actual emissions for the facilities being changed. A different consecutive 24-month period can be used for each regulated new source review pollutant. The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount. Baseline emissions cannot occur prior to November 15, 1990.(E) The actual average emissions rate shall include fugitive emissions to the extent quantifiable. Until March 1, 2016, emissions previously demonstrated as resulting from planned maintenance, startup, or shutdown activities; historically unauthorized; and subject to reporting under Chapter 101 of this title (relating to General Air Quality Rules) shall be included to the extent that they have been authorized, or are being authorized.(4) Basic design parameters--For a process unit at a steam electric generating facility, the owner or operator may select as its basic design parameters either maximum hourly heat input and maximum hourly fuel consumption rate or maximum hourly electric output rate and maximum steam flow rate. When establishing fuel consumption specifications in terms of weight or volume, the minimum fuel quality based on British thermal units content shall be used for determining the basic design parameters for a coal-fired electric utility steam generating unit. The basic design parameters for any process unit that is not at a steam electric generating facility are maximum rate of fuel or heat input, maximum rate of material input, or maximum rate of product output. Combustion process units will typically use maximum rate of fuel input. For sources having multiple end products and raw materials, the owner or operator shall consider the primary product or primary raw material when selecting a basic design parameter. The owner or operator may propose an alternative basic design parameter for the source's process units to the executive director if the owner or operator believes the basic design parameter as defined in this paragraph is not appropriate for a specific industry or type of process unit. If the executive director approves of the use of an alternative basic design parameter, that basic design parameter shall be identified and compliance required in a condition in a permit that is legally enforceable.(A) The owner or operator shall use credible information, such as results of historic maximum capability tests, design information from the manufacturer, or engineering calculations, in establishing the magnitude of the basic design parameter.(B) If design information is not available for a process unit, the owner or operator shall determine the process unit's basic design parameter(s) using the maximum value achieved by the process unit in the five-year period immediately preceding the planned activity.(C) Efficiency of a process unit is not a basic design parameter.(5) Begin actual construction--In general, initiation of physical on-site construction activities on an emissions unit that are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. With respect to a change in method of operation, this term refers to those on-site activities other than preparatory activities that mark the initiation of the change.(6) Building, structure, facility, or installation--All of the pollutant-emitting activities that belong to the same industrial grouping, are located in one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control). Pollutant-emitting activities are considered to be part of the same industrial grouping if they belong to the same "major group" (i.e., that have the same two-digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 supplement.(7) Carbon dioxide equivalent (CO2 e) emissions--shall represent an amount of greenhouse gases (GHGs) emitted, and shall be computed by multiplying the mass amount of emissions in tons per year (tpy) for the GHGs, as defined in §101.1 of this title (relating to Definitions), by the gas's associated global warming potential as published in 40 Code of Federal Regulations Part 98, Subpart A, Table A-1 - Global Warming Potentials, and summing the resultant values.(8) Clean coal technology--Any technology, including technologies applied at the precombustion, combustion, or post-combustion stage, at a new or existing facility that will achieve significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization of coal in the generation of electricity, or process steam that was not in widespread use as of November 15, 1990.(9) Clean coal technology demonstration project--A project using funds appropriated under the heading "Department of Energy-Clean Coal Technology," up to a total amount of $2.5 billion for commercial demonstration of clean coal technology, or similar projects funded through appropriations for the United States Environmental Protection Agency. The federal contribution for a qualifying project shall be at least 20% of the total cost of the demonstration project.(10) Commence--As applied to construction of a major stationary source or major modification, means that the owner or operator has all necessary preconstruction approvals or permits and either has:(A) begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or(B) entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time.(11) Construction--Any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) that would result in a change in actual emissions.(12) Contemporaneous period--For major sources the period between:(A) the date that the increase from the particular change occurs; and(B) 60 months prior to the date that construction on the particular change commences.(13) De minimis threshold test (netting)--A method of determining if a proposed emission increase will trigger nonattainment or prevention of significant deterioration review. The summation of the proposed project emission increase in tons per year with all other creditable source emission increases and decreases during the contemporaneous period is compared to the significant level for that pollutant. If the significant level is exceeded, then prevention of significant deterioration and/or nonattainment review is required.(14) Electric utility steam generating unit--Any steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than 25 megawatts electrical output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical energy for sale is included in determining the electrical energy output capacity of the affected facility.(15) Federally regulated new source review pollutant--As defined in subparagraphs (A) - (E) of this paragraph:(A) any pollutant for which a national ambient air quality standard has been promulgated and any constituents or precursors for such pollutants identified by the United States Environmental Protection Agency;(B) except for greenhouse gases, any pollutant that is subject to any standard promulgated under Federal Clean Air Act (FCAA), §111;(C) any Class I or II substance subject to a standard promulgated under or established by FCAA, Title VI;(D) any pollutant that otherwise is subject to regulation under the FCAA; except that any or all hazardous air pollutants either listed in FCAA, §112 or added to the list under FCAA, §112(b)(2), which have not been delisted under FCAA, §112(b)(3), are not regulated new source review pollutants unless the listed hazardous air pollutant is also regulated as a constituent or precursor of a general pollutant listed under FCAA, §108; or(E) greenhouse gases that meet or exceed the thresholds established in §116.164 of this title (relating to Prevention of Significant Deterioration Applicability for Greenhouse Gases Sources). (16) Greenhouse gases (GHGs)--as defined in §101.1 of this title (relating to Definitions).(17) Lowest achievable emission rate--For any emitting facility, that rate of emissions of a contaminant that does not exceed the amount allowable under applicable new source performance standards promulgated by the United States Environmental Protection Agency under 42 United States Code, §7411, and that reflects the following:(A) the most stringent emission limitation that is contained in the rules and regulations of any approved state implementation plan for a specific class or category of facility, unless the owner or operator of the proposed facility demonstrates that such limitations are not achievable; or(B) the most stringent emission limitation that is achieved in practice by a specific class or category of facilities, whichever is more stringent.(18) Major facility--Any facility that emits or has the potential to emit 100 tons per year or more of the plant-wide applicability limit (PAL) pollutant in an attainment area; or any facility that emits or has the potential to emit the PAL pollutant in an amount that is equal to or greater than the major source threshold for the PAL pollutant in Table I of this section for nonattainment areas.(19) Major stationary source--Any stationary source that emits, or has the potential to emit, a threshold quantity of emissions or more of any air contaminant (including volatile organic compounds (VOCs)) for which a national ambient air quality standard has been issued, or greenhouse gases. The major source thresholds are identified in Table I of this section for nonattainment pollutants and the major source thresholds for prevention of significant deterioration pollutants are identified in 40 Code of Federal Regulations (CFR) §51.166(b)(1). For greenhouse gases, the major source thresholds are specified in §116.164 of this title (relating to Prevention of Significant Deterioration Applicability for Greenhouse Gases Sources). A source that emits, or has the potential to emit a federally regulated new source review pollutant at levels greater than those identified in 40 CFR §51.166(b)(1) is considered major for all prevention of significant deterioration pollutants. A major stationary source that is major for VOCs or nitrogen oxides is considered to be major for ozone. The fugitive emissions of a stationary source shall not be included in determining for any of the purposes of this definition whether it is a major stationary source, unless the source belongs to one of the categories of stationary sources listed in 40 CFR §51.165(a)(1)(iv)(C).(20) Major modification--As follows.(A) Any physical change in, or change in the method of operation of a major stationary source that causes a significant project emissions increase and a significant net emissions increase for any federally regulated new source review pollutant. At a stationary source that is not major prior to the increase, the increase by itself must equal or exceed that specified for a major source. At an existing major stationary source, the increase must equal or exceed that specified for a major modification to be significant. The major source and significant thresholds are provided in Table I of this section for nonattainment pollutants. The major source and significant thresholds for prevention of significant deterioration pollutants are identified in 40 Code of Federal Regulations §51.166(b)(1) and (23), respectively and in §116.164 of this title (relating to Prevention of Significant Deterioration Applicability for Greenhouse Gases Sources).Attached Graphic(B) A physical change or change in the method of operation shall not include:(i) routine maintenance, repair, and replacement;(ii) use of an alternative fuel or raw material by reason of an order under the Energy Supply and Environmental Coordination Act of 1974, §2(a) and (b) (or any superseding legislation) or by reason of a natural gas curtailment plan under the Federal Power Act;(iii) use of an alternative fuel by reason of an order or rule of 42 United States Code, §7425;(iv) use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste;(v) use of an alternative fuel or raw material by a stationary source that the source was capable of accommodating before December 21, 1976 (unless such change would be prohibited under any federally enforceable permit condition established after December 21, 1976) or the source is approved to use under any permit issued under regulations approved under this chapter;(vi) an increase in the hours of operation or in the production rate (unless the change is prohibited under any federally enforceable permit condition that was established after December 21, 1976);(vii) any change in ownership at a stationary source;(viii) any change in emissions of a pollutant at a site that occurs under an existing plant-wide applicability limit;(ix) the installation, operation, cessation, or removal of a temporary clean coal technology demonstration project, provided that the project complies with the state implementation plan and other requirements necessary to attain and maintain the national ambient air quality standard during the project and after it is terminated;(x) for prevention of significant deterioration review only, the installation or operation of a permanent clean coal technology demonstration project that constitutes re-powering, provided that the project does not result in an increase in the potential to emit of any regulated pollutant emitted by the unit. This exemption shall apply on a pollutant-by-pollutant basis; or(xi) for prevention of significant deterioration review only, the reactivation of a clean coal-fired electric utility steam generating unit.(21) Necessary preconstruction approvals or permits--Those permits or approvals required under federal air quality control laws and regulations and those air quality control laws and regulations that are part of the applicable state implementation plan.(22) Net emissions increase--The amount by which the sum of the following exceeds zero: the project emissions increase plus any sourcewide creditable contemporaneous emission increases, minus any sourcewide creditable contemporaneous emission decreases. Baseline actual emissions shall be used to determine emissions increases and decreases.(A) An increase or decrease in emissions is creditable only if the following conditions are met:(i) it occurs during the contemporaneous period;(ii) the executive director has not relied on it in issuing a federal new source review permit for the source and that permit is in effect when the increase in emissions from the particular change occurs; and(iii) in the case of prevention of significant deterioration review only, an increase or decrease in emissions of sulfur dioxide, particulate matter, or nitrogen oxides that occurs before the applicable minor source baseline date is creditable only if it is required to be considered in calculating the amount of maximum allowable increases remaining available.(B) An increase in emissions is creditable if it is the result of a physical change in, or change in the method of operation of a stationary source only to the extent that the new level of emissions exceeds the baseline actual emission rate. Emission increases at facilities under a plant-wide applicability limit are not creditable.(C) A decrease in emissions is creditable only to the extent that all of the following conditions are met:(i) the baseline actual emission rate exceeds the new level of emissions;(ii) it is federally enforceable at and after the time that actual construction on the particular change begins;(iii) the executive director has not relied on it in issuing a prevention of significant deterioration or a nonattainment permit;(iv) the decrease has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change; and(v) in the case of nonattainment applicability analysis only, the state has not relied on the decrease to demonstrate attainment or reasonable further progress.(D) An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.(23) Offset ratio--For the purpose of satisfying the emissions offset reduction requirements of 42 United States Code, §7503(a)(1)(A), the emissions offset ratio is the ratio of total actual reductions of emissions to total emissions increases of such pollutants. The minimum offset ratios are included in Table I of this section under the definition of major modification. In order for a reduction to qualify as an offset, it must be certified as an emission credit under Chapter 101, Subchapter H, Division 1 or 4 of this title (relating to Emission Credit Banking and Trading; or Discrete Emission Credit Banking and Trading), except as provided for in §116.170(b) of this title (relating to Applicability of Emission Reductions as Offsets). The reduction must not have been relied on in the issuance of a previous nonattainment or prevention of significant deterioration permit.(24) Plant-wide applicability limit--An emission limitation expressed, in tons per year, for a pollutant at a major stationary source, that is enforceable and established in a plant-wide applicability limit permit under §116.186 of this title (relating to General and Special Conditions).(25) Plant-wide applicability limit effective date--The date of issuance of the plant-wide applicability limit permit.(26) Plant-wide applicability limit major modification--Any physical change in, or change in the method of operation of the plant-wide applicability limit source that causes it to emit the plant-wide applicability limit pollutant at a level equal to or greater than the plant-wide applicability limit.(27) Plant-wide applicability limit permit--The new source review permit that establishes the plant-wide applicability limit.(28) Plant-wide applicability limit pollutant--The pollutant for which a plant-wide applicability limit is established at a major stationary source.(29) Potential to emit--The maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or enforceable operational limitation on the capacity of the stationary source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, may be treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable. Secondary emissions, as defined in 40 Code of Federal Regulations §51.165(a)(1)(viii), do not count in determining the potential to emit for a stationary source.(30) Project net--The sum of the following: the project emissions increase, minus any sourcewide creditable emission decreases proposed at the source between the date of application for the modification and the date the resultant modification begins emitting. Baseline actual emissions shall be used to determine emissions increases and decreases. Increases and decreases must meet the creditability criteria listed under the definition of net emissions increase in this section.(31) Projected actual emissions--The maximum annual rate, in tons per year, at which an existing facility is projected to emit a federally regulated new source review pollutant in any rolling 12-month period during the five years following the date the facility resumes regular operation after the project, or in any one of the ten years following that date, if the project involves increasing the facility's design capacity or its potential to emit that federally regulated new source review pollutant. In determining the projected actual emissions, the owner or operator of the major stationary source shall include unauthorized emissions from planned maintenance, startup, or shutdown activities, which were historically unauthorized and subject to reporting under Chapter 101 of this title (relating to General Air Quality Rules), to the extent they have been authorized, or are being authorized; and fugitive emissions to the extent quantifiable; and shall consider all relevant information, including, but not limited to, historical operational data, the company's own representations, the company's expected business activity and the company's highest projections of business activity, the company's filings with the state or federal regulatory authorities, and compliance plans under the approved state implementation plan.(32) Project emissions increase--Project emissions increases are determined using the following methods:(A) for existing facilities that are part of the project, the sum of the differences between the projected actual emissions and the baseline actual emissions. In calculating any increase in emissions that results from the project, that portion of the facility's emissions following the project that the facility could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions and that are also unrelated to the particular project, including any increased utilization due to product demand growth may be excluded from the project emission increase. The potential to emit from the facility following completion of the project may be used in lieu of the projected actual emission rate; and(B) for new facilities that are part of the project, the sum of the differences between the potential to emit from the facility following completion of the project and the baseline actual emissions.(C) for projects that include both existing and new facilities, the sum of the differences for all facilities, using the method described in subparagraphs (A) and (B) of this paragraph.(D) the "sum of the differences" as used in subparagraphs (A) - (C) of this paragraph shall include both increases and decreases in emissions calculated in accordance with those subparagraphs, except that project emission increases for purposes of §116.12(30) and §116.150(c)(3) of this title shall not consider decreases. (33) Replacement facility--A facility that satisfies the following criteria:(A) the facility is a reconstructed unit within the meaning of 40 Code of Federal Regulations §60.15(b)(1), or the facility replaces an existing facility;(B) the facility is identical to or functionally equivalent to the replaced facility;(C) the replacement does not alter the basic design parameters of the process unit;(D) the replaced facility is permanently removed from the major stationary source, otherwise permanently disabled, or permanently barred from operation by a permit that is enforceable. If the replaced facility is brought back into operation, it shall constitute a new facility. No creditable emission reductions shall be generated from shutting down the existing facility that is replaced. A replacement facility is considered an existing facility for the purpose of determining federal new source review applicability.(34) Secondary emissions-- that would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the source or modification itself. Secondary emissions must be specific, well-defined, quantifiable, and impact the same general area as the stationary source or modification that causes the secondary emissions. Secondary emissions include emissions from any off-site support facility that would not be constructed or increase its emissions, except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include any emissions that come directly from a mobile source such as emissions from the tail pipe of a motor vehicle, from a train, or from a vessel.(35) Significant facility--A facility that emits or has the potential to emit a plant-wide applicability limit (PAL) pollutant in an amount that is equal to or greater than the significant level for that PAL pollutant.(36) Small facility--A facility that emits or has the potential to emit the plant-wide applicability limit (PAL) pollutant in an amount less than the significant level for that PAL pollutant.(37) Stationary source--Any building, structure, facility, or installation that emits or may emit any air pollutant subject to regulation under 42 United States Code, §§7401 et seq. (38) Temporary clean coal technology demonstration project--A clean coal technology demonstration project that is operated for a period of five years or less, and that complies with the state implementation plan and other requirements necessary to attain and maintain the national ambient air quality standards during the project and after it is terminated.</content><note type="source"><p>Source Note: The provisions of this §116.12 adopted to be effective September 13, 1993, 18 TexReg 5746; amended to be effective June 7, 1996, 21 TexReg 4790; amended to be effective April 7, 1998, 23 TexReg 3515; amended to be effective March 21, 1999, 24 TexReg 1781; amended to be effective November 1, 2001, 26 TexReg 8539; amended to be effective September 14, 2003, 28 TexReg 7763; amended to be effective June 15, 2005, 30 TexReg 3422; amended to be effective February 1, 2006, 31 TexReg 515; amended to be effective March 3, 2011, 36 TexReg 1305 and 1324;amended to be effective August 16, 2012, 37 TexReg 6049; amended to be effective April 17, 2014, 39 TexReg 2901; amended to be effective July 1, 2021, 46 TexReg 3924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scA/s116.13"><num value="116.13">§116.13</num><heading>Flexible Permit Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Emission cap--Emission limit for a specific air contaminant based on total emissions of that pollutant from all facilities that are included in a flexible permit.(2) Expected maximum capacity--The maximum capacity of a facility according to its physical and operational design and planned operation.(3) Individual emission limitation--Emission limit for a specific air contaminant for an individual facility.</content><note type="source"><p>Source Note: The provisions of this §116.13 adopted to be effective July 8, 1998, 23 TexReg 6973; amended to be effective January 6, 2011, 35 TexReg 11909; amended to be effective July 31, 2014, 39 TexReg 5777.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scA/s116.14"><num value="116.14">§116.14</num><heading>Standard Permit Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Off-plant receptor--For the purposes of Subchapter F of this chapter (relating to Standard Permits) only, shall be defined as any recreational area or residence or other structure not occupied or used solely by the owner or operator of the facilities or owner of the property upon which the facilities are located.(2) Oil and gas facility--For the purposes of Subchapter F of this chapter only, shall be defined as facilities which handle gases and liquids associated with the production, conditioning, processing, and pipeline transfer of fluids found in geologic formations beneath the earth's surface. These oil and gas facilities include, but are not limited to: oil or gas production facilities; water injection facilities; carbon dioxide separation facilities; or oil or gas pipeline facilities consisting of one or more tanks, separators, dehydration units, free water knock-outs, gunbarrels, heater treaters, vapor recovery units, flares, pumps, internal combustion engines, gas turbines, compressors, natural gas liquid recovery units, or gas sweetening and other gas conditioning facilities. This definition does not include sulfur recovery units.(3) Sulfur recovery unit--For the purposes of Subchapter F of this chapter only, shall be defined as a process device whose primary purpose is to recover elemental sulfur from acid gas.</content><note type="source"><p>Source Note: The provisions of this §116.14 adopted to be effective July 8, 1998, 23 TexReg 6973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scA/s116.15"><num value="116.15">§116.15</num><heading>Section 112(g) Definitions</heading><content>The following words and terms, when used in Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology (FCAA, §112(g), 40 Code of Federal Regulations (CFR) Part 63)), as amended December 27, 1996, shall have the following meanings, unless the context clearly indicates otherwise.(1) Affected source--The stationary source or group of stationary sources which, when fabricated (on-site), erected, or installed meets the criteria in §116.180(a)(1) and (2) of this title (relating to Applicability) and for which no MACT standard has been promulgated under 40 CFR Part 63.(2) Control technology--Measures, processes, methods, systems, or techniques to limit the emission of HAPs including, but not limited to, measures that:(A) reduce the quantity of, or eliminate emissions of, such pollutants through process changes, substitution of materials, or other modifications;(B) enclose systems or processes to eliminate emissions;(C) collect, capture, or treat such pollutants when released from a process, stack, storage, or fugitive emissions point;(D) are design, equipment, work practice, or operational standards (including requirements for operator training or certification) as provided in 42 United States Code 7412(h); or(E) are a combination of subparagraphs (A)-(D) of this paragraph.(3) Electric utility steam generating unit--Any fossil fuel fired combustion unit of more than 25 megawatts that serves a generator that produces electricity for sale. A unit that co-generates steam and electricity and supplies more than one-third of its potential electric output capacity and more than 25 megawatts electric output to any utility power distribution system for sale shall be considered an electric utility steam generating unit.(4) Greenfield site--A contiguous area under common control that is an undeveloped site.(5) Hazardous air pollutant (HAP)--Any air pollutant listed under the FCAA, §112(b).(6) List of source categories--The Source Category List required by FCAA, §112(c).(7) Maximum achievable control technology (MACT) emission limitation for new sources--The emission limitation which is not less stringent than the emission limitation achieved in practice by the best controlled similar source, and which reflects the maximum degree of reduction in emissions that the executive director, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable by the constructed or reconstructed major source.(8) Process or production unit--Any collection of structures and/or equipment, that processes, assembles, applies, or otherwise uses material inputs to produce or store an intermediate or final product. A single facility may contain more than one process or production unit.(9) Research and development activities--Activities conducted at a research or laboratory facility whose primary purpose is to conduct research and development into new processes and products, where such source is operated under the close supervision of technically trained personnel and is not engaged in the manufacture of products for sale or exchange for commercial profit, except in a de minimis manner.(10) Similar source--A stationary source or process that has comparable emissions and is structurally similar in design and capacity to a constructed or reconstructed major source such that the source could be controlled using the same control technology.</content><note type="source"><p>Source Note: The provisions of this §116.15 adopted to be effective July 8, 1998, 23 TexReg 6973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scA/s116.17"><num value="116.17">§116.17</num><heading>Qualified Facility Definitions</heading><content>The words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Actual emissions--The highest rate of emissions of an air contaminant actually achieved from a qualified facility within the 120-month period prior to a change to a facility under §116.116(e) of this title (relating to Changes at Facilities). This rate cannot exceed any applicable federal or state emissions limitation. This definition applies only when determining whether there has been a net increase in allowable emissions under §116.116(e) of this title.(2) Allowable emissions--The authorized rate of emissions of an air contaminant from a facility as determined in accordance with this paragraph. This rate cannot exceed any applicable state or federal emissions limitation. This definition applies only when determining whether there has been a net increase in allowable emissions under §116.116(e) of this title.(A) Permitted facility--For a facility with a permit under this chapter, the allowable emissions shall be any emission limit established in the permit on a maximum allowable emissions rate table and any emission limit contained in representations in the permit application which was relied upon in issuing the permit, plus any allowable emissions authorized under Chapter 106 of this title (relating to Permits by Rule).(B) Facility permitted by rule--For a facility operating under Chapter 106 of this title, the allowable emissions shall be the least of the emissions rate allowed in Chapter 106, Subchapter A of this title (relating to General Requirements), the emissions rate specified in the applicable permit by rule, or the federally enforceable emission rate established in accordance with §106.6 of this title (relating to Registration of Emissions).(C) Standard permit facility--For a facility authorized by standard permit, other than the Air Quality Standard Permit for Pollution Control Projects, the allowable emissions shall be the maximum emissions rate represented in the registration to use the standard permit.(D) Special exemption facility--For a facility operating under a special exemption, the allowable emissions shall be the emissions rate represented in the original special exemption request.(3) Revision--A change made in the conditions or emission rates of a permit issued under §116.111 of this title (relating to General Application), or to the representations in the registration for a standard permit issued under Subchapter F of the chapter (relating to Standard Permits) to codify physical changes or new emission rates as authorized by §116.116(e) of this title (relating to Changes at Facilities).</content><note type="source"><p>Source Note: The provisions of this §116.17 adopted to be effective October 7, 2010, 35 TexReg 8944.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scA/s116.18"><num value="116.18">§116.18</num><heading>Electric Generating Facility Permits Definitions</heading><content>The following words and terms, when used in Subchapter I of this chapter (relating to Electric Generating Facility Permits) shall have the following meanings, unless the context clearly indicates otherwise.(1) Allowance--As defined in §101.330(1) of this title (relating to Definitions).(2) Capacity factor--Either:(A) the ratio of an electric generating facility's (EGF) actual annual electric output (expressed in megawatt-hours) to the EGF's nameplate capacity times 8,760 hours; or(B) the ratio of an EGF's annual heat input (in millions of British thermal units (MMBtu)) to the EGF's maximum design heat input (in MMBtu per hour) times 8,760 hours.(3) Coal--As defined in §101.330(6) of this title.(4) Coal-fired--As defined in §101.330(7) of this title.(5) Compliance account--As defined in §101.330(8) of this title.(6) Control period--As defined in §101.330(9) of this title.(7) Electing EGF--As defined in §101.330(11) of this title.(8) Electric generating facility (EGF)--As defined in §101.330(12) of this title.(9) Grandfathered EGF--As defined in §101.330(14) of this title.(10) Nameplate capacity--The maximum electrical output (expressed in megawatts) that an EGF can sustain over a specified period of time when not restricted by seasonal or other deratings.(11) Natural gas-fired EGF--For purposes of Subchapter I of this chapter, an EGF that was designed to burn either natural gas or an EGF that was designed to burn both natural gas and fuel oil.(12) Normal Annual Operating Schedule--For the purposes of §116.911(f)(1) of this title (relating to Electric Generating Facility Permit Application), the maximum number of operating hours for an EGF in any 12 consecutive month period between January 1, 1997 and December 31, 1999. For sites with more than one EGF, the owner or operator may use the EGF with the highest number of operating hours.(13) Peaking unit--An EGF that has:(A) an average capacity factor of no more than 10% during the past three calendar years; and(B) a capacity factor of no more than 20% in each of those calendar years.(14) Person--As defined in §101.330(17) of this title.</content><note type="source"><p>Source Note: The provisions of this §116.18 adopted to be effective January 11, 2000, 25 TexReg 185; amended to be effective June 12, 2002, 27 TexReg 4954.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scA/s116.20"><num value="116.20">§116.20</num><heading>Portable Facilities Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act or in the rules of the commission, the terms used by the commission have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms that are defined by the Texas Clean Air Act, and in §101.1 of this title (relating to Definitions), the following words and terms, when used in Subchapter B, Division 8 of this chapter (relating to Portable Facilities), have the following meanings, unless the context clearly indicates otherwise.(1) Change of location--The process of gaining approval and moving a permitted facility and associated sources to a new location in which public notice is required, in accordance with the requirements of Chapter 39 of this title (relating to Public Notice).(2) Portable facility--A facility authorized by a permit containing special conditions that allow the facility to relocate. Portable facilities are authorized by the Texas Commission on Environmental Quality, Air Permits Division. To be a portable facility, the facility shall not exceed the major source thresholds stated in 40 Code of Federal Regulations (CFR) §51.166(b)(1) and the permit for that facility shall be is designated with a portable permit number, portable registration number, or portable account number. The portable facility cannot be located at an account that is subject to the requirements for Prevention of Significant Deterioration and Nonattainment permits under Chapter 116, Subchapter B, Divisions 5 and 6 of this title (relating to Nonattainment Review Permits and Prevention of Significant Deterioration Review). These portable designations are used to facilitate the relocation of these types of facilities under specific criteria, and are not authorized under Chapter 106 of this title (relating to Permits by Rule).(3) Project--A public works contract or series of contracts for segments of work within close proximity to each other.(4) Related project segments--For facilities on a Texas Department of Transportation right-of-way, related project segments are one contract with multiple project locations or one contractor with multiple contracts in which separate project limits are in close proximity to each other. A facility that is sited on the right-of-way is usually within project limits. However, a facility located at an intersection or wider right-of-way outside project limits is acceptable if it can be easily associated with the project.(5) Relocation--The process of gaining approval and moving a facility and associated sources to an approved site in which no public notice is required under Chapter 39 of this title (relating to Public Notice).(6) Right-of-way of a public works project--Any public works project that is associated with a right-of-way. Examples of right-of-way public works projects are public highways and roads, water and sewer pipelines, electrical transmission lines, and other similar works. A facility must be in or contiguous to the right-of-way of the public works project to be exempt from the public notice requirements listed in Texas Health and Safety Code, §382.056.(7) Site--As defined in §122.10 of this title (relating to General Definitions).(8) Temporary facility--A facility that will occupy a designated site for not more than 180 consecutive days or that will supply material (such as concrete, hot mix asphalt, crushed rock, etc.) for a single project (single contract or same contractor for related project segments), but not other unrelated projects.</content><note type="source"><p>Source Note: The provisions of this §116.20 adopted to be effective March 3, 2010, 35 TexReg 1749.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c116/scB"><num value="B">SUBCHAPTER B</num><heading>NEW SOURCE REVIEW PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.110"><num value="116.110">§116.110</num><heading>Applicability</heading><content>(a) Permit to construct. Except as provided in §116.118 of this title (relating to Construction While Permit Amendment Application Pending), before any actual work is begun on the facility, any person who plans to construct any new facility or to engage in the modification of any existing facility which may emit air contaminants into the air of this state shall either:(1) obtain a permit under §116.111 of this title (relating to General Application);(2) satisfy the conditions for a standard permit under the requirements in:(A) Subchapter F of this chapter (relating to Standard Permits);(B) Chapter 321, Subchapter B of this title (relating to Concentrated Animal Feeding Operations);(C) Chapter 332 of this title (relating to Composting); or(D) Chapter 330, Subchapter N of this title (relating to Landfill Mining);(3) satisfy the conditions for a flexible permit under the requirements in Subchapter G of this chapter (relating to Flexible Permits);(4) satisfy the conditions for facilities permitted by rule under Chapter 106 of this title (relating to Permits by Rule); or(5) satisfy the criteria for a de minimis facility or source under §116.119 of this title (relating to De Minimis Facilities or Sources).(b) Modifications to existing permitted facilities. Modifications to existing permitted facilities may be handled through the amendment of an existing permit.(c) Compliance history. For all authorizations listed in subsections (a) and (b) of this section or §116.116 of this title (relating to Changes to Facilities), compliance history reviews may be required under Chapter 60 of this title (relating to Compliance History).(d) Exclusion. Owners or operators of affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to Subchapter E of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) are not authorized to use:(1) a permit by rule under Chapter 106 of this title;(2) standard permits under Subchapter F of this chapter that do not meet the requirements of Subchapter E of this chapter; or(3) §116.116(e) of this title.(e) Change in ownership.(1) Within 30 days after the change of ownership of a facility permitted under this chapter, the new owner shall notify the commission and certify the following:(A) the date of the ownership change;(B) the name, address, phone number, and contact person for the new owner;(C) an agreement by the new owner to be bound by all permit conditions and all representations made in the permit application and any amendments and alterations;(D) there will be no change in the type of pollutants emitted; and(E) there will be no increase in the quantity of pollutants emitted.(2) The new owner shall comply with all permit conditions and all representations made in the permit application and any amendments and alterations.(f) Submittal under seal of Texas licensed professional engineer. Applications for permit or permit amendment with an estimated capital cost of the project above $2 million, and not subject to any exemption contained in the Texas Engineering Practice Act (TEPA), shall be submitted under seal of a Texas licensed professional engineer. However, nothing in this subsection shall limit or affect any requirement which may apply to the practice of engineering under the TEPA or the actions of the Texas Board of Professional Engineers. The estimated capital cost is defined in §116.141 of this title (relating to Determination of Fees).(g) Responsibility for permit application. The owner of the facility or the operator of the facility authorized to act for the owner is responsible for complying with this section.</content><note type="source"><p>Source Note: The provisions of this §116.110 adopted to be effective July 8, 1998, 23 TexReg 6973; amended to be effective September 4, 2000, 25 TexReg 8668; amended to be effective August 29, 2002, 27 TexReg 7910; amended to be effective August 6, 2020, 45 TexReg 5351.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.111"><num value="116.111">§116.111</num><heading>General Application</heading><content>(a) In order to be granted a permit, amendment, or special permit amendment, the application must include:(1) a completed Form PI-1 General Application signed by an authorized representative of the applicant. All additional support information specified on the form must be provided before the application is complete;(2) information which demonstrates that emissions from the facility, including any associated dockside vessel emissions, meet all of the following.(A) Protection of public health and welfare.(i) The emissions from the proposed facility will comply with all rules and regulations of the commission and with the intent of the Texas Clean Air Act (TCAA), including protection of the health and property of the public.(ii) For issuance of a permit for construction or modification of any facility within 3,000 feet of an elementary, junior high/middle, or senior high school, the commission shall consider any possible adverse short-term or long-term side effects that an air contaminant or nuisance odor from the facility may have on the individuals attending the school(s).(B) Measurement of emissions. The proposed facility will have provisions for measuring the emission of significant air contaminants as determined by the executive director. This may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Commission on Environmental Quality Sampling Procedures Manual."(C) Best available control technology (BACT) must be evaluated for and applied to all facilities subject to the TCAA. Prior to evaluation of BACT under the TCAA, all facilities with pollutants subject to regulation under the Federal Clean Air Act (FCAA), Title I, Part C shall evaluate and apply BACT as defined in §116.160(c)(1)(A) of this title (relating to Prevention of Significant Deterioration Requirements).(D) New Source Performance Standards (NSPS). The emissions from the proposed facility will meet the requirements of any applicable NSPS as listed under 40 Code of Federal Regulations (CFR) Part 60, promulgated by the United States Environmental Protection Agency (EPA) under FCAA, §111, as amended.(E) National Emission Standards for Hazardous Air Pollutants (NESHAP). The emissions from the proposed facility will meet the requirements of any applicable NESHAP, as listed under 40 CFR Part 61, promulgated by EPA under FCAA, §112, as amended.(F) NESHAP for source categories. The emissions from the proposed facility will meet the requirements of any applicable maximum achievable control technology standard as listed under 40 CFR Part 63, promulgated by the EPA under FCAA, §112 or as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR Part 63)).(G) Performance demonstration. The proposed facility will achieve the performance specified in the permit application. The applicant may be required to submit additional engineering data after a permit has been issued in order to demonstrate further that the proposed facility will achieve the performance specified in the permit application. In addition, dispersion modeling, monitoring, or stack testing may be required.(H) Nonattainment review. If the proposed facility is located in a nonattainment area, it shall comply with all applicable requirements in this chapter concerning nonattainment review.(I) Prevention of Significant Deterioration (PSD) review.(i) If the proposed facility is located in an attainment area, it shall comply with all applicable requirements in this chapter concerning PSD review.(ii) If the proposed facility or modification meets or exceeds the applicable greenhouse gases thresholds defined in §116.164 of this title (relating to Prevention of Significant Deterioration Applicability for Greenhouse Gases Sources) then it shall comply with all applicable requirements in this chapter concerning PSD review for sources of greenhouse gases.(J) Air dispersion modeling. Computerized air dispersion modeling may be required by the executive director to determine air quality impacts from a proposed new facility or source modification. In determining whether to issue, or in conducting a review of, a permit application for a shipbuilding or ship repair operation, the commission will not require and may not consider air dispersion modeling results predicting ambient concentrations of non-criteria air contaminants over coastal waters of the state. The commission shall determine compliance with non-criteria ambient air contaminant standards and guidelines at land-based off-property locations.(K) Hazardous air pollutants. Affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) for hazardous air pollutants shall comply with all applicable requirements under Subchapter E of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)).(L) Mass cap and trade allowances. If subject to Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program), the proposed facility, group of facilities, or account must obtain allowances to operate.(b) In order to be granted a permit, amendment, or special permit amendment, the applicant must comply with the requirements of Chapter 39 of this title (relating to Public Notice) and Chapter 55 of this title (relating to Request for Reconsideration and Contested Case Hearings; Public Comment).(c) Upon request by the owner or operator of a facility which previously has received a permit or special permit from the commission, the executive director or designated representative may exempt the relocation of such facility from the provisions in Chapter 39 of this title if there is no indication that the operation of the facility at the proposed new location will significantly affect ambient air quality and no indication that operation of the facility at the proposed new location will cause a condition of air pollution.</content><note type="source"><p>Source Note: The provisions of this §116.111 adopted to be effective July 8, 1998, 23 TexReg 6973; amended to be effective September 23, 1999, 24 TexReg 8296; amended to be effective March 29, 2001, 26 TexReg 2398; amended to be effective September 12, 2002, 27 TexReg 8546; amended to be effective October 7, 2010, 35 TexReg 8944; amended to be effective April 17, 2014, 39 TexReg 2901; amended to be effective May 14, 2020, 45 TexReg 3093.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.112"><num value="116.112">§116.112</num><heading>Distance Limitations</heading><content>(a) For any facility subject to the notice and hearing requirements of Subchapter B, Division 3 of this chapter (relating to Public Notification and Comment Procedures); Chapter 39, Subchapter H or K of this title (relating to Applicability and General Provisions and Public Notice of Air Quality Applications); or Chapter 122, Subchapter D of this title (relating to Public Announcement, Public Notice, Affected State Review, Notice and Comment Hearing, Notice of Proposed Final Action, EPA Review, and Public Petition), the measurement of distances to determine compliance with any location or distance limitation requirement in Texas Health and Safety Code, Chapter 382, shall be taken toward structures that are in use at the time the permit application is filed with the commission, and that are not occupied or used solely by the owner of the facility or the owner of the property upon which the facility is located.(b) The following facilities must satisfy the following distance criteria.(1) Lead smelters. New lead smelting plants shall be located at least 3,000 feet from any individual's residence where lead smelting operations have not been conducted before August 31, 1987. This subsection does not apply to:(A) a modification of a lead smelting plant in operation on or before August 31, 1987;(B) a new lead smelting plant or modification of a plant with the capacity to produce 200 pounds or less of lead per hour; or(C) a lead smelting plant that was located more than 3,000 feet from the nearest residence when the plant began operations.(2) Concrete crushing facilities. A concrete crushing facility must not be operated within 440 yards of any building in use as a single or multi-family residence, school, or place of worship at the time the application for the initial authorization for the operation of that facility at that location is filed with the commission. (A) The measurement of distances shall be taken from the point on the concrete crushing facility nearest to the residence, school, or place of worship to the point on the building in use as a residence, school, or place of worship that is nearest the concrete crushing facility.(B) The minimum distance limitation and measurement requirements of this paragraph do not apply to concrete crushing facilities that were authorized to operate at the site as of September 1, 2001.(C) Unless the facility is located in, or located in a county adjacent to, a county with a population of 2.4 million or more, the minimum distance limitation and measurement requirements of this paragraph do not apply to facilities operated on a site during one period of no more than 180 calendar days that crush concrete resulting from the demolition of a structure on that site for use primarily at that site, and which comply with all applicable conditions stated in commission rules, including operating conditions.(D) The minimum distance limitation and measurement requirements of this paragraph do not apply to structures occupied or used solely by the owner of the facility or the owner of the property upon which the facility is located.(c) For applicable distance limitations at hazardous waste management facilities, see §335.204 of this title (relating to Unsuitable Site Characteristics), as amended and adopted in the August 22, 2003 issue of the Texas Register (28 TexReg 6915), and §335.205 of this title (relating to Prohibition of Permit Issuance), as amended and adopted in the November 9, 2001 issue of the Texas Register (26 TexReg 9135).</content><note type="source"><p>Source Note: The provisions of this §116.112 adopted to be effective July 8, 1998, 23 TexReg 6973; amended to be effective January 8, 2003, 28 TexReg 240; amended to be effective February 4, 2004, 29 TexReg 1010; amended to be effective May 14, 2020, 45 TexReg 3093.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.114"><num value="116.114">§116.114</num><heading>Application Review Schedule</heading><content>(a) Review schedule. The executive director shall review permit applications in accordance with the following.(1) Notice of completion or deficiency. The executive director shall mail written notification informing the applicant that the application is complete or that it is deficient within 90 days of receipt of the application for a new permit, or amendment to a permit or special permit.(A) If the application is deficient, the notification must state:(i) the additional information required; and(ii) the intent of the executive director to void the application if information for a complete application is not submitted.(B) Additional information may be requested within 60 days of receipt of the information provided in response to the deficiency notification.(2) Preliminary decision to approve or disapprove the application. The executive director shall conduct a technical review and send written notice to the applicant of the preliminary decision to approve or not approve the application within 180 days from receipt of a completed permit application or 150 days from receipt of a completed permit amendment. If the applicant has provided Notice of Receipt of Application and Intent to Obtain Permit public notification as required by the executive director under Chapter 39 of this title (relating to Public Notice), one of the following shall apply:(A) if comments are received on the proposed facility and replied to by the executive director in accordance with §39.420 of this title (relating to Transmittal of the Executive Director's Response to Comments and Decision) and §55.156 of this title (relating to Public Comment Processing); and(B) if no requests for public hearing or public meeting on the proposed facility have been received or the application is otherwise exempt under §39.419(e) of this title (relating to Notice of Application and Preliminary Decision), the executive director shall send a copy of the Preliminary Decision to the applicant; or(C) if Notice of Application and Preliminary Decision is required under §39.419(e) of this title, the executive director shall authorize this notice and send copies to the applicant and all other persons are required under §39.602 of this title (relating to Mailed Notice).(3) Review schedule for Advanced Clean Energy Projects. In addition to the applicable requirements and deadlines specified in subsections (a) - (c) of this section, the following deadlines apply to permit applications for advanced clean energy projects as defined in Texas Health and Safety Code, §382.003, Definitions:(A) As authorized by federal law, not later than nine months after the executive director declares an application for a permit under this chapter for an advanced clean energy project to be administratively complete, the executive director shall complete its technical review of the application.(B) The commission shall issue a final order issuing or denying the permit not later than nine months after the executive director declares the application technically complete. The commission may extend this deadline up to three months if it determines that the number of complex pending applications for permits under this chapter will prevent the commission from meeting this deadline without creating an extraordinary burden on the resources of the commission.(4) Refund of permit fee.(A) If the time limits provided in this section to process an application are exceeded, the applicant may appeal in writing to the executive director for a refund of the permit fee.(B) The permit fee shall be reimbursed if it is determined by the executive director that the specified period was exceeded without good cause, as provided in Texas Civil Statutes, Article 6252-13b.1, §3.(b) Voiding of deficient application.(1) An applicant shall make a good faith effort to submit, in a timely manner, adequate information which demonstrates that the requirements for obtaining a permit or permit amendment are met in response to any deficiency notification issued by the executive director under the provisions of this section, or Chapter 39 of this title.(2) If an applicant fails to make such good faith effort after two written notices of deficiency, the executive director shall void the application and notify the applicant of the voidance and the remaining deficiencies in the voided application. If a new application is submitted within six months of the voidance, it shall meet the requirements of §116.111 of this title (relating to General Application) but will be exempt from the requirements of §116.140 of this title (relating to Applicability).(c) Notification of executive director's decision.(1) Notification to applicant. The executive director or the chief clerk shall send to the applicant the decision to approve or not approve the application if:(A) no timely requests for reconsideration, contested case hearing, or public meeting on the proposed facility have been received; or(B) if hearing requests have been received and withdrawn before the executive director's Preliminary Decision; or(C) the application is for any amendment, modification, or renewal application that would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted; and(D) the applicant has satisfied all public notification requirements of Chapter 39 of this title.(2) Notification to commenters. Persons submitting written comments under Chapter 39 of this title shall be sent the executive director's final action and given an explanation of the opportunity to file a motion under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) at the same time that the applicant is notified. If the number of interested persons who have requested notification makes it impracticable for the commission to notify those persons by mail, the commission shall notify those persons by publication using the method prescribed by Texas Health and Safety Code, §382.031(a).(3) Time limits. The executive director shall send notification of final action within:(A) one year after receipt of a complete prevention of significant deterioration or nonattainment permit application, or a complete permit application for an action under Subchapter C of this chapter (relating to Plant-Wide Applicability Limits);(B) 180 days of receipt of a completed permit or permit renewal application; or(C) 150 days of receipt of a permit amendment or special permit amendment application.</content><note type="source"><p>Source Note: The provisions of this §116.114 adopted to be effective July 8, 1998, 23 TexReg 6973; amended to be effective September 23, 1999, 24 TexReg 8296; amended to be effective September 14, 2003, 28 TexReg 7763; amended to be effective January 10, 2008, 33 TexReg 190; amended to be effective June 24, 2010, 35 TexReg 5331; amended to be effective November 22, 2018, 43 TexReg 7540.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.115"><num value="116.115">§116.115</num><heading>General and Special Conditions</heading><content>(a) General and special conditions. Permits, special permits, standard permits, and special exemptions may contain general and special conditions.(b) General conditions. Holders of permits, special permits, standard permits, and special exemptions shall comply with the following:(1) the general conditions contained in the permit document if issued or amended prior to August 16, 1994; or(2) the following general conditions if the permit or amendment is issued or amended on or after August 16, 1994, regardless of whether they are specifically stated within the permit document.(A) Report of construction progress. The permit holder shall report start of construction, construction interruptions exceeding 45 days, and completion of construction. The report shall be given to the appropriate regional office of the commission not later than 15 working days after occurrence of the event.(B) Start-up notification.(i) The permit holder shall notify the appropriate air program regional office of the commission prior to the commencement of operations of the facilities authorized by the permit. The notification must be made in such a manner as to allow a representative of the commission to be present at the commencement of operations.(ii) The permit holder shall provide a separate notification for the commencement of operations for each unit of phased construction, which may involve a series of units commencing operations at different times.(iii) Prior to operation of the facilities authorized by the permit, the permit holder shall identify to the Office of Permitting and Registration the source or sources of allowances to be utilized for compliance with Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program).(C) Sampling requirements.(i) If sampling is required, the permit holder shall contact the commission's Office of Compliance and Enforcement prior to sampling to obtain the proper data forms and procedures.(ii) All sampling and testing procedures must be approved by the executive director and coordinated with the regional representatives of the commission.(iii) The permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant.(D) Equivalency of methods. The permit holder must demonstrate or otherwise justify the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the permit. Alternative methods shall be applied for in writing and must be reviewed and approved by the executive director prior to their use in fulfilling any requirements of the permit.(E) Recordkeeping. The permit holder shall:(i) maintain a copy of the permit along with records containing the information and data sufficient to demonstrate compliance with the permit, including production records and operating hours;(ii) keep all required records in a file at the facility site. If, however, the facility site normally operates unattended, records must be maintained at an office within Texas having day-to-day operational control of the facility site;(iii) make the records available at the request of personnel from the commission or any local air pollution control agency having jurisdiction over the site. Upon request, the commission shall make any such records of compliance available to the public in a timely manner;(iv) comply with any additional recordkeeping requirements specified in special conditions attached to the permit;(v) retain information in the file for at least two years following the date that the information or data is obtained; and(vi) for persons certifying and registering a federally-enforceable emission limitation in accordance with §116.611 of this title (relating to Registration To Use a Standard Permit), retain all records demonstrating compliance for at least five years.(F) Maximum allowable emission rates. The total emissions of air contaminants from any of the sources of emissions must not exceed the values stated on the table attached to the permit entitled "Emission Sources--Maximum Allowable Emission Rates." Emissions that exceed the maximum allowable emission rates are not authorized and are a violation of the permit.(G) Maintenance of emission control. The permitted facilities shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. The permit holder shall provide notification for emissions events and maintenance in accordance with §§101.201, 101.211, and 101.221 of this title (relating to Emissions Event Reporting and Recordkeeping Requirements; Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements; and Operational Requirements).(H) Compliance with rules.(i) Acceptance of a permit by an applicant constitutes an acknowledgment and agreement that the permit holder will comply with all rules, regulations, and orders of the commission issued in conformity with the Texas Clean Air Act and the conditions precedent to the granting of the permit.(ii) If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition shall govern and be the standard by which compliance shall be demonstrated.(iii) Acceptance includes consent to the entrance of commission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the permit.(c) Special conditions. The holders of permits, special permits, standard permits, and special exemptions shall comply with all special conditions contained in the permit document.(1) Special conditions may be attached to a permit that are more restrictive than the requirements of Title 30 of the Texas Administrative Code.(2) Special condition for written approval.(A) The executive director may require as a special condition that the permit holder obtain written approval before constructing a source under:(i) a standard permit under Subchapter F of this chapter (relating to Standard Permits); or(ii) an exemption under Chapter 106 of this title (relating to Permits by Rule).(B) Such written approval may be required if the executive director specifically finds that an increase of a particular pollutant could either:(i) result in a significant impact on the air environment; or(ii) cause the facility to become subject to review under:(I) Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)); or(II) the provisions in Division 5 of this subchapter (relating to Nonattainment Review Permits) and Division 6 of this subchapter (relating to Prevention of Significant Deterioration Review).</content><note type="source"><p>Source Note: The provisions of this §116.115 adopted to be effective July 8, 1998, 23 TexReg 6973; amended to be effective March 29, 2001, 26 TexReg 2398; amended to be effective December 11, 2002, 27 TexReg 11574; amended to be effective September 14, 2003, 28 TexReg 7763; amended to be effective March 3, 2011, 36 TexReg 1305.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.116"><num value="116.116">§116.116</num><heading>Changes to Facilities</heading><content>(a) Representations and conditions. The following are the conditions upon which a permit, special permit, or special exemption are issued:(1) representations with regard to construction plans and operation procedures in an application for a permit, special permit, or special exemption; and(2) any general and special conditions attached to the permit, special permit, or special exemption itself.(b) Permit amendments.(1) Except as provided in subsection (e) of this section or §116.118 of this title (relating to Construction While Permit Amendment Application Pending), the permit holder shall not vary from any representation or permit condition without obtaining a permit amendment if the change will cause:(A) a change in the method of control of emissions;(B) a change in the character of the emissions; or(C) an increase in the emission rate of any air contaminant.(2) Any person who requests permit amendments must receive prior approval by the executive director or the commission, except as provided in §116.118 of this title. Applications must be submitted with a completed Form PI-1 and are subject to the requirements of §116.111 of this title (relating to General Application).(3) Any person who applies for an amendment to a permit to construct or reconstruct an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) under Subchapter E of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) shall comply with the provisions in Chapter 39 of this title (relating to Public Notice).(4) Any person who applies for an amendment to a permit to construct a new facility or modify an existing facility shall comply with the provisions in Chapter 39 of this title.(c) Permit alteration.(1) A permit alteration is:(A) a decrease in allowable emissions; or(B) any change from a representation in an application, general condition, or special condition in a permit that does not cause:(i) a change in the method of control of emissions;(ii) a change in the character of emissions; or(iii) an increase in the emission rate of any air contaminant.(2) Requests for permit alterations that must receive prior approval by the executive director are those that:(A) result in an increase in off-property concentrations of air contaminants;(B) involve a change in permit conditions; or(C) affect facility or control equipment performance.(3) The executive director shall be notified in writing of all other permit alterations not specified in paragraph (2) of this subsection.(4) A request for permit alteration shall include information sufficient to demonstrate that the change does not interfere with the owner or operator's previous demonstrations of compliance with the requirements of §116.111(a)(2)(C) of this title.(5) Permit alterations are not subject to the requirements of §116.111(a)(2)(C) of this title.(d) Permits by rule under Chapter 106 of this title (relating to Permits by Rule) in lieu of permit amendment or alteration.(1) A permit amendment or alteration is not required if the changes to the permitted facility qualify for an exemption from permitting or permit by rule under Chapter 106 of this title unless prohibited by permit condition as provided in §116.115 of this title (relating to General and Special Conditions).(2) All changes authorized under Chapter 106 of this title to a permitted facility shall be incorporated into that facility's permit when the permit is amended or renewed.(e) Changes to qualified facilities.(1) Prior to determining if this subsection may be applied to a proposed change to a facility, the following will apply:(A) The facility must be authorized under this chapter or Chapter 106 of this title.(B) A separate netting analysis shall be made for each proposed change to determine the applicability of major New Source Review by demonstrating that any increase in actual emissions is below the threshold for major modification as defined in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions). Proposed changes exceeding the major modification threshold cannot be authorized under this subsection. This analysis shall meet the definition and requirements of net emissions increase in §116.12 of this title.(2) Prior to changes under this subsection, facility owners or operators will submit Form PI-E, Notification of Changes to Qualified Facilities, and the following additional requirements will apply:(A) Facility owners or operators will simultaneously submit, where applicable, an application for a permit revision for each permit issued under §116.111 of this title involved in the qualified facility transaction.(B) Owners or operators of facilities authorized under Subchapter F of this chapter (relating to Standard Permits) shall submit a revision to the representations in the facility registration in accordance with §116.611 of this title (relating to Registration to Use a Standard Permit).(C) Any applicable permit issued under §116.111 of this title will be revised to reflect changes under this subsection to facilities authorized under Chapter 106 of this title. If no applicable permit issued under §116.111 of this title is involved in the qualified facility transaction then changes shall be certified by a registration for an emission rate under §106.6 of this title (relating to Registration of Emissions).(D) No allowable emission rate as defined in §116.17 of this title (relating to Qualified Facility Definitions) shall be exceeded.(E) The facility has received a preconstruction permit or permit amendment no earlier than 120 months before the change will occur, or uses control technology that is at least as effective as the best available control technology (BACT) that the commission required or would have required for a facility of the same class or type as a condition of issuing a permit or permit amendment 120 months before the change will occur. There will be no reduction in emission control efficiency.(3) Regardless of any other subsection of this section, a physical or operational change may be made to a qualified facility if it can be determined that the change does not result in:(A) a net increase in allowable emissions of any air contaminant; and(B) the emission of any air contaminant not previously emitted.(4) In making the determination in paragraph (3) of this subsection, the effect on emissions of the following shall be considered:(A) any air pollution control method applied to the qualified facility;(B) any decreases in allowable emissions from other qualified facilities at the same commission air quality account that have received a preconstruction permit or permit amendment no earlier than 120 months before the change will occur; and(C) any decrease in actual emissions from other qualified facilities at the same commission air quality account that are not included in subparagraph (B) of this paragraph.(5) The determination in paragraph (3) of this subsection shall be based on the allowable emissions for air contaminant categories and any allowable emissions for individual compounds. If a physical or operational change would result in emissions of an air contaminant category or compound above the allowable emissions for that air contaminant category or compound, there must be an equivalent decrease in emissions at the same facility or a different facility at the same account.(A) The equivalent decrease in emissions shall be based on the same time periods (e.g., hourly and 12-month rolling average rates) as the allowable emissions for the facility at which the change will occur.(B) Emissions of different compounds within the same air contaminant category may be interchanged. Emissions of substances that were, but are not currently, listed as a volatile organic compound (VOC) by the United States Environmental Protection Agency (EPA) may be substituted for emissions of compounds currently listed by EPA as a VOC as referenced in §101.1 of this title (relating to Definitions) provided the compound being used as a substitute is not regulated as a hazardous air pollutant and is not toxic. The substitution of current VOCs for compounds that have been removed from the VOC list by EPA is prohibited.(C) For allowable emissions for individual compounds, any interchange shall adjust the emission rates for the different compounds in accordance with the ratio of the effects screening levels of the compounds. The effects screening level shall be determined by the executive director.(D) For allowable emissions for air contaminant categories, interchanges shall use the unadjusted emission rates for the different compounds.(E) The facility owner or operator shall demonstrate that the change will not adversely affect ambient air quality.(F) An air contaminant category is a group of related compounds, such as volatile organic compounds, particulate matter, nitrogen oxides, and sulfur compounds.(6) Persons making changes to qualified facilities under this subsection shall comply with the applicable requirements of §116.117 of this title (relating to Documentation and Notification of Changes to Qualified Facilities).(7) As used in this subsection, the term "physical and operational change" does not include:(A) construction of a new facility; or(B) changes to procedures regarding monitoring, determination of emissions, and recordkeeping that are required by a permit.(8) Additional air pollution control methods may be implemented for the purpose of making a facility a qualified facility. The implementation of any additional control methods to qualify a facility shall be subject to the requirements of this chapter. The owner or operator shall:(A) utilize additional control methods that are as effective as BACT required at the time the additional control methods are implemented; or(B) demonstrate that the additional control methods, although not as effective as BACT, were implemented to comply with a law, rule, order, permit, or implemented to resolve a documented citizen complaint.(9) For purposes of this subsection and §116.117 of this title, the following subparagraphs apply.(A) Intraplant trading means the consideration of decreases in allowable and actual emissions from other qualified facilities in accordance with paragraph (4) of this subsection.(B) The allowable emissions from facilities that were never constructed shall not be used in intraplant trading.(C) The decreases in allowable and actual emissions shall be based on emission rates for the same time periods (e.g., hourly and 12-month rolling average) as the allowable emissions for the facility at which the change will occur and for which an intraplant trade is desired.(D) Actual emissions shall be based on data that is representative of the emissions actually achieved from a facility during the relevant time period (e.g., hourly or 12-month rolling average).(10) The existing level of control may not be lessened for a qualified facility.(11) A separate netting analysis shall be performed for each proposed change under this subsection.(f) Use of credits. Regardless of any other subsection of this section, discrete emission reduction credits may be used to exceed permit allowables as described in §101.376(b) of this title (relating to Discrete Emission Credit Use) if all applicable conditions of §101.376 of this title are met. This subsection does not authorize any physical changes to a facility.</content><note type="source"><p>Source Note: The provisions of this §116.116 adopted to be effective July 8, 1998, 23 TexReg 6973; amended to be effective September 23, 1999, 24 TexReg 8296; amended to be effective September 4, 2000, 25 TexReg 8668; amended to be effective October 7, 2010, 35 TexReg 8944; amended to be effective August 6, 2020, 45 TexReg 5351.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.117"><num value="116.117">§116.117</num><heading>Documentation and Notification of Changes to Qualified Facilities</heading><content>(a) Persons making changes under §116.116(e) of this title (relating to Changes to Facilities) shall maintain documentation at the plant site demonstrating that the changes satisfy §116.116(e) of this title. If the plant site is unmanned, the regional manager may authorize an alternative site to maintain the documentation. The documentation shall be made available to representatives of the commission upon request. The documentation shall include:(1) quantification of all emission increases and decreases associated with the physical or operational change;(2) a description of the physical or operational change;(3) a description of any equipment being installed; and(4) sufficient information as necessary to show that the project will not adversely affect ambient air quality and will comply as applicable with:(A) §116.150 and §116.151 of this title (relating to Nonattainment Review) and §§116.160 - 116.163 of this title (relating to Prevention of Significant Deterioration Review); or(B) Subchapter E of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)).(b) Nothing in this section shall limit the applicability of any federal requirement.</content><note type="source"><p>Source Note: The provisions of this §116.117 adopted to be effective July 8, 1998, 23 TexReg 6973; amended to be effective October 7, 2010, 35 TexReg 8944.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.118"><num value="116.118">§116.118</num><heading>Construction While Permit Amendment Application Pending</heading><content>(a) Purpose, applicability, and exclusions.(1) To the extent permissible under federal law and the requirements of this section, an applicant for a permit amendment may, at their own risk, begin construction related to the application if the executive director has completed the technical review and issued a draft permit including the permit amendment.(2) An applicant may not begin construction under this section if the facility that is the subject of the permit amendment is a concrete batch plant located within 880 yards of a property that is used as a residence. This limitation on construction does not affect or supersede the designation of an affected person under Texas Health and Safety Code (THSC), §382.056 or §382.058.(3) Any new facility or group of facilities, or changes to an existing facility or group of facilities, that constitutes a new major stationary source or a major modification, as defined in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions) is not eligible for construction under this section.(4) This section does not apply to the amendment of a Plant-wide Applicability Limit issued under Subchapter C of this chapter (relating to Plant-wide Applicability Limits).(5) Affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to Subchapter E of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) are not eligible for construction under this section.(6) This section does not apply to qualified facility changes authorized under §116.116(e) of this title (relating to Changes to Facilities).(7) This section does not apply to requests, claims, registrations, or applications for a standard permit under Subchapter F of this chapter (relating to Standard Permits) or a permit by rule under Chapter 106 of this title (relating to Permits by Rule).(8) This section does not relieve the applicant or project from any other applicable requirements. An applicant seeking to begin construction under this section shall comply with all other applicable state and federal requirements pertaining to an application for a permit amendment (such as, but not limited to, requirements concerning public notice and participation, federal applicability, emission control technology, applicable distance limitations, etc.).(b) Public notice. An applicant seeking to begin construction under this section shall comply with the provisions in Chapter 39 of this title (relating to Public Notice).(c) Prohibitions on facility operation and commission action.(1) Any facility constructed or modified under this section shall not be operated until the commission has issued the final permit amendment authorizing the construction or modification.(2) The commission may not consider construction begun under this section in determining whether to grant the permit amendment sought in the application.</content><note type="source"><p>Source Note: The provisions of this §116.118 adopted to be effective August 6, 2020, 45 TexReg 5351.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.119"><num value="116.119">§116.119</num><heading>De Minimis Facilities or Sources</heading><content>(a) Facilities or sources that meet the conditions of one or more of the paragraphs of this subsection are considered by the commission to be de minimis, which means that registration or authorization prior to construction is not required: (1) categories of facilities or sources included on the list entitled "De Minimis Facilities or Sources;" (2) facilities or sources at a site which, in combination, use the following materials at no more than the rate prescribed in subparagraphs (A) - (F) of this paragraph: (A) cleaning and stripping solvents, 50 gallons per year; (B) coatings (excluding plating materials), 100 gallons per year; (C) dyes, 1,000 pounds per year; (D) bleaches, 1,000 gallons per year; (E) fragrances (excluding odorants), 250 gallons per year; (F) water-based surfactants/detergents, 2,500 gallons per year; (3) facilities or sources located inside a building at a site which meet the following sitewide emission rate caps based on the July 19, 2000 Effects Screening Levels (ESL) list without the addition of control devices, as defined in §101.1 of this title (relating to Definitions). Attached Graphic(4) any individual facility, source, or group of facilities or sources which the executive director determines to be de minimis based upon: (A) proximity to receptors; (B) rate of emission of air contaminants; (C) engineering judgment and experience; and (D) determination that no adverse toxicological or health effects would occur off property. (b) De minimis facilities or sources at a site which are subsequently determined by the executive director to be in violation of any commission rule, permit, order, or statute within the commission's jurisdiction, will no longer be considered de minimis and must obtain registration or authorization under this chapter or Chapter 106 of this title (relating to Permits by Rule). (c) The "List of De Minimis Facilities or Sources" will be maintained in the commission's Office of Permitting, Remediation, and Registration in Austin, with copies maintained in the commission's regional offices, and on the commission's home page on the World Wide Web. (1) Persons may petition the executive director to amend the "List of De Minimis Facilities or Sources" or the executive director may amend the list as necessary. (2) When amending the list to add or delete categories of facilities, sources, or groups of facilities or sources, the executive director will consider, at a minimum, the following: (A) typical operating scenarios; (B) typical design and location; (C) the types and rates of air contaminants emitted; (D) engineering judgment and experience; and (E) toxicological or health impacts. (3) When amending the list to add or delete categories of facilities, sources, or groups of facilities or sources, the executive director will publish notice of the proposed amendment on the commission's home page on the World Wide Web and will allow 30 days for comments. If a category of facilities, sources, or groups of facilities or sources is deleted from the list, the owner or operator will have 180 days from the date of publication of the amended list on the commission's home page on the World Wide Web to obtain, register, or apply for authorization under this chapter or Chapter 106 of this title (relating to Permits by Rule).</content><note type="source"><p>Source Note: The provisions of this §116.119 adopted to be effective September 4, 2000, 25 TexReg 8668.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.120"><num value="116.120">§116.120</num><heading>Voiding of Permits</heading><content>(a) A permit or permit amendment under this chapter is void if the permit holder does one of the following:(1) fails to begin construction within 18 months of issuance, except as noted in subsection (b) of this section;(2) discontinues construction for more than 18 consecutive months prior to completion; or(3) fails to complete construction within a reasonable time.(b) The executive director may grant extensions to begin construction. Permits issued to holders who have received extensions will be subject to revision based on best available control technology, lowest achievable emission rate, and netting or offsets as applicable. A first extension of 18 months may be granted solely at the request of the permit holder. One additional extension of up to 18 months may be granted if the permit holder demonstrates that emissions from the facility will comply with all rules and regulations of the commission and the intent of the TCAA, including protection of the public's health and physical property; and(1) the permit holder is a party to litigation not of the permit holder's initiation regarding the issuance of the permit; or(2) the permit holder has spent, or committed to spend, at least 10% of the estimated total cost of the project up to a maximum of $5 million.(c) A permit holder granted an extension under subsection (b)(1) of this section may receive one subsequent extension if the permit holder meets the conditions of subsection (b)(2) of this section.</content><note type="source"><p>Source Note: The provisions of this §116.120 adopted to be effective September 14, 2003, 28 TexReg 7763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.127"><num value="116.127">§116.127</num><heading>Actual to Projected Actual and Emissions Exclusion Test for Emissions</heading><content>(a) If projected actual emissions are used or emissions are excluded from the emission increase resulting from the project, the owner or operator shall document and maintain a record of the following information before beginning construction, and this information must be provided as part of the notification, certification, registration, or application submitted to the executive director to claim or apply for state new source review authorization for the project. If the emissions unit is an existing electric utility steam generating unit, the owner or operator shall provide a copy of this information to the executive director before beginning actual construction:(1) a description of the project;(2) identification of the facilities of which emissions of a federally regulated new source review pollutant could be affected by the project; and(3) a description of the applicability test used to determine that the project is not a major modification for any pollutant, including the baseline actual emissions, the projected actual emissions, the amount of emissions excluded from the project emissions increase and an explanation for why such amount was excluded, and any netting calculations, if applicable.(b) If projected actual emissions are used to determine the project emission increase at a facility, the owner or operator shall monitor the emissions of any regulated new source review pollutant that could increase as a result of the project at that facility and calculate and maintain a record of the annual emissions from that facility, in tons per year, on a calendar year basis for:(1) a period of five years following resumption of regular operations after the change; or(2) a period of ten years following resumption of regular operations after the change if the project increases the design capacity or potential to emit of that regulated new source review pollutant at that facility.(c) If the facility is an electric utility steam generating unit, the owner or operator shall submit a report to the executive director within 60 days after the end of each calendar year of which records must be maintained documenting the unit's annual emissions during the calendar year that preceded submission of the report.(d) If the facility is not an electric utility steam generating unit, the owner or operator shall submit a report to the executive director if the annual emissions from the project exceed the baseline actual emissions by a significant amount for that pollutant, and the emissions exceed the preconstruction projection for any facility. The report shall be submitted to the executive director within 60 days after the end of each calendar year. The report shall contain:(1) the name, address, and telephone number of the major stationary source; and(2) the calculated actual annual emissions.(e) The owner or operator of the facility shall make the information required to be documented and maintained by this section available for review upon request for inspection by the executive director, local air pollution control program, and the general public.</content><note type="source"><p>Source Note: The provisions of this §116.127 adopted to be effective March 3, 2011, 36 TexReg 1305.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.140"><num value="116.140">§116.140</num><heading>Applicability</heading><content>Any person who applies for a permit to construct a new facility or to modify an existing facility, or for an amendment to an existing permit under §116.110 of this title (relating to Applicability) shall remit, at the time of application for such permit, a fee based on the estimated capital cost of the project. The fee will be determined as set forth in §116.141 of this title (relating to Determination of Fees). Fees will not be charged for permit alterations, amendments to special permits, site approvals for permitted portable facilities, changes of ownership, or changes of location of permitted facilities.</content><note type="source"><p>Source Note: The provisions of this §116.140 adopted to be effective September 13, 1993, 18 TexReg 5746; amended to be effective July 8, 1998, 23 TexReg 6973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.141"><num value="116.141">§116.141</num><heading>Determination of Fees</heading><content>(a) The estimated capital cost of the project is the estimated total cost of the equipment and services that would normally be capitalized according to standard and generally accepted corporate financing and accounting procedures.(b) The following fee schedule shall be used by a permit applicant to determine the fee to be remitted with a permit application.(1) If the estimated capital cost of the project is less than $300,000 or if the project consists of new facilities controlled and operated directly by the federal government and the federal regulations for Prevention of Significant Deterioration (PSD) Review do not apply, the fee is $900. The provisions of subsections (c) and (d) of this section do not apply to a project consisting of new facilities controlled and operated directly by the federal government.(2) If the estimated capital cost of the project is $300,000 or more and the PSD regulations do not apply, the fee is 0.30% of the estimated capital cost of the project. The maximum fee is $75,000. For determination of fees for projects applicable to PSD regulations, see §116.163 of this title (relating to Prevention of Significant Deterioration Permit Fees).(c) If the estimated capital cost of the project is less than $50 million, the permit applicant shall include a certification that the estimated capital cost of the project is correct. Certification of the estimated capital cost of the project may be spot-checked and evaluated for reasonableness during permit processing. The reasonableness of project capital cost estimates used as a basis for permit fees shall be determined by the extent to which such estimates include fair and reasonable estimates of the capital value of the direct and indirect costs listed as follows.(1) Direct costs are as follows:(A) process and control equipment not previously owned by the applicant and not currently authorized under this chapter;(B) auxiliary equipment, including exhaust hoods, ducting, fans, pumps, piping, conveyors, stacks, storage tanks, waste-disposal facilities, and air pollution control equipment specifically needed to meet permit and regulation requirements;(C) freight charges;(D) site preparation (including demolition), construction of fences, outdoor lighting, road, and parking areas;(E) installation (including foundations), erection of supporting structures, enclosures or weather protection, insulation and painting, utilities and connections, process integration, and process control equipment;(F) auxiliary buildings, including materials storage, employee facilities, and changes to existing structures;(G) ambient air monitoring network.(2) Indirect costs are as follows:(A) final engineering design and supervision, and administrative overhead;(B) construction expense (including construction liaison), securing local building permits, insurance, temporary construction facilities, and construction clean-up;(C) contractor's fee and overhead.(d) A fee of $75,000 shall be required if no estimate of capital project cost is included with a permit application.(e) An applicant for a permit or permit amendment not involving any capital expenditure shall be required to remit the minimum permit fee of $900.</content><note type="source"><p>Source Note: The provisions of this §116.141 adopted to be effective September 13, 1993, 18 TexReg 5746; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective October 20, 2002, 27 TexReg 9616.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.143"><num value="116.143">§116.143</num><heading>Payment of Fees</heading><content>All permit fees will be remitted in the form of a check, certified check, electronic funds transfer, or money order made payable to the Texas Commission on Environmental Quality (TCEQ) or TCEQ and delivered with the application for permit or amendment to the TCEQ, P.O. Box 13088, MC 214, Austin, Texas 78711-3088. Fees must be paid at the time an application for a permit or amendment is submitted. Applications will not be considered for review nor will any time constraints required of TCEQ for application processing begin until a fee is received.(1) Single fee. The executive director shall charge only one fee for multiple permits issued for one project if it is determined that the following conditions are met:(A) all the component or separate processes being permitted are integral or related to the overall project;(B) the project is under continuous construction of the component parts;(C) the permitted facilities are to be located on the same or contiguous property; and(D) applications for all permits for the project must be submitted at the same time.(2) Return of fees. No fees will be refunded after a deficient application has been voided or after a permit or amendment has been issued by the agency. Fees will be returned under the following conditions.(A) If no permit or amendment is issued by the agency or if the applicant withdraws the application prior to issuance of the permit or amendment, one-half of the fee will be refunded.(B) The fee difference will be refunded if a permit application is withdrawn because the proposed construction or modification is determined to meet the requirements of:(i) a standard permit issued under Subchapter F of this chapter (relating to Standard Permits);(ii) a permit by rule under Chapter 106 of this title (relating to Permits by Rule); or(iii) the conditions of §116.119 of this title (relating to De Minimis Facilities or Sources).</content><note type="source"><p>Source Note: The provisions of this §116.143 adopted to be effective September 13, 1993, 18 TexReg 5746; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective October 20, 2002, 27 TexReg 9616; amended to be effective September 14, 2003, 28 TexReg 7763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.150"><num value="116.150">§116.150</num><heading>New Major Source or Major Modification in Ozone Nonattainment Areas</heading><content>(a) This section applies to all new source review authorizations for new construction or modification of facilities or emissions units that will be located in any area designated as nonattainment for ozone under 42 United States Code (USC), §§7407 et seq. as of the date of issuance of the permit, unless the following apply on the date of issuance of the permit:(1) the United States Environmental Protection Agency (EPA) has made a finding of attainment;(2) the EPA has approved the removal of nonattainment New Source Review (NSR) requirements from the area;(3) the EPA has determined that Prevention of Significant Deterioration requirements apply in the area; or(4) the EPA determines that nonattainment NSR is no longer required for purposes of anti-backsliding.(b) The owner or operator of a proposed new major stationary source, as defined in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions) of volatile organic compound (VOC) emissions or nitrogen oxides (NOX ) emissions, or the owner or operator of an existing stationary source of VOC or NOX emissions that will undergo a major modification, as defined in §116.12 of this title with respect to VOC or NOX , shall meet the requirements of subsection (d)(1) - (4) of this section, except as provided in subsection (e) of this section. Table I, located in the definition of major modification in §116.12 of this title, specifies the various classifications of nonattainment along with the associated emission levels that designate a major stationary source and significant level for those classifications.(c) Except as noted in subsection (e) of this section regarding NOX , the de minimis threshold test (netting) is required for all modifications to existing major sources of VOC or NOX unless at least one of the following conditions are met:(1) the proposed project emissions increases are less than five tons per year (tpy) of the individual nonattainment pollutant in areas classified under Federal Clean Air Act (FCAA), Title I, Part D, Subpart 2 (42 USC, §7511) classified as Serious or Severe;(2) the proposed project emissions increases are less than 40 tpy of the individual nonattainment pollutant in areas classified under FCAA, Title I, Part D, Subpart 1 (42 USC, §7502) and for those under FCAA, Title I, Part D, Subpart 2 (42 USC, §7511) classified as Marginal or Moderate; or(3) the project emissions increases are less than the significant level stated in Table I located in the definition of major modification in §116.12 of this title and when coupled with project actual emissions decreases for the same pollutant, summed as the project net, are less than or equal to zero tpy.(d) In applying the de minimis threshold test, if the net emissions increases are greater than the significant levels stated in Table I located in the definition of major modification in §116.12 of this title, the following requirements apply.(1) The proposed facility or emissions unit shall comply with the lowest achievable emission rate (LAER) as defined in §116.12 of this title for the nonattainment pollutants for which the facility or emissions unit is a new major source or major modification except as provided in paragraph (3)(B) of this subsection and except for existing major stationary sources that have a potential to emit (PTE) of less than 100 tpy of the applicable nonattainment pollutant. For these sources, best available control technology (BACT) can be substituted for LAER. LAER shall otherwise be applied to each new facility or emissions unit and to each existing facility or emissions unit at which the net emissions increase will occur as a result of a physical change or change in method of operation of the unit.(2) All major stationary sources owned or operated by the applicant (or by any person controlling, controlled by, or under common control with the applicant) in the state must be in compliance or on a schedule for compliance with all applicable state and federal emission limitations and standards.(3) At the time the new or modified facility or emissions unit or facilities or emissions units commence operation, the emissions increases from the new or modified facility or emissions unit or facilities or emissions units must be offset. The proposed facility or emissions unit shall use the offset ratio for the appropriate nonattainment classification as defined in §116.12 of this title and shown in Table I located in the definition of major modification in §116.12 of this title. Internal offsets that are generated at the source and that otherwise meet all creditability criteria can be applied as follows. (A) Major stationary sources located in a serious or severe ozone nonattainment area with a PTE of less than 100 tpy of an applicable nonattainment pollutant are not required to undergo NNSR under this section, if the project increases are offset with internal offsets at a ratio of at least 1.3 to 1.(B) Major stationary sources located in a serious or severe ozone nonattainment area with a PTE of greater than or equal to 100 tpy of an applicable nonattainment pollutant can substitute federal BACT (as identified in §116.160(c)(1)(A) of this title (relating to Prevention of Significant Deterioration Requirements) for LAER, if the project increases are offset with internal offsets at a ratio of at least 1.3 to 1. Internal offsets used in this manner can also be applied to satisfy the offset requirement.(4) In accordance with the FCAA, the permit application must contain an analysis of alternative sites, sizes, production processes, and control techniques for the proposed source. The analysis must demonstrate that the benefits of the proposed location and source configuration significantly outweigh the environmental and social costs of that location.(e) For sources located in the El Paso ozone nonattainment area under the 1979 one-hour ozone National Ambient Air Quality Standard as defined in 40 Code of Federal Regulations, Part 81, the requirements of this section do not apply to NOX emissions.</content><note type="source"><p>Source Note: The provisions of this §116.150 adopted to be effective September 13, 1993, 18 TexReg 5746; amended to be effective November 2, 1995, 20 TexReg 8619; amended to be effective April 7, 1998, 23 TexReg 3515; amended to be effective March 21, 1999, 24 TexReg 1781; amended to be effective September 14, 2003, 28 TexReg 7763; amended to be effective June 15, 2005, 30 TexReg 3422; amended to be effective February 1, 2006, 31 TexReg 515; amended to be effective March 3, 2011, 36 TexReg 1324; amended to be effectiveAugust16, 2012, 37 TexReg 6049; amended to be effective July 1, 2021, 46 TexReg 3924; amended to be effective July 4, 2024, 49 TexReg 4775.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.151"><num value="116.151">§116.151</num><heading>New Major Source or Major Modification in Nonattainment Area Other Than Ozone</heading><content>(a) This section applies to applications for new construction or modification of facilities or emissions units located in a designated nonattainment area for an air contaminant other than ozone. The owner or operator of a proposed new or modified facility or emissions unit that will be a new major stationary source for that nonattainment air contaminant, or the owner or operator of an existing major stationary source that will undergo a major modification with respect to that nonattainment air contaminant, shall meet the additional requirements of subsection (c)(1) - (4) of this section. Table I located in the definition of major modification in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions) specifies the various classifications of nonattainment along with the associated emission levels that designate a major stationary source.(b) The de minimis threshold test (netting) is required for all modifications to existing major sources of federally regulated new source review pollutants, unless the proposed project emissions increases are less than the major modification threshold for the pollutant identified in Table I located in the definition of major modification in §116.12 of this title.(c) In applying the de minimis threshold test, if the net emissions increases are greater than the major modification levels stated in Table I located in the definition of major modification in §116.12 of this title, the following requirements apply.(1) The proposed facility or emissions unit shall comply with the lowest achievable emission rate (LAER) as defined in §116.12 of this title for the nonattainment pollutants for which the facility or emissions unit is a new major source or major modification. LAER shall be applied to each new facility or emissions unit and to each existing facility or emissions unit at which the net emissions increase will occur as a result of a physical change or change in method of operation of the unit.(2) All major stationary sources owned or operated by the applicant (or by any person controlling, controlled by, or under common control with the applicant) in the state shall be in compliance or on a schedule for compliance with all applicable state and federal emission limits and standards.(3) At the time the new or modified facility or emissions unit or facilities or emissions units commence operation, the emission increases from the new or modified facility or emissions unit or facilities or emissions units shall be offset. The proposed facility or emissions unit shall use the offset ratio for the appropriate nonattainment classification as defined in §116.12 of this title and shown in Table I located in the definition of major modification in §116.12 of this title.(4) In accordance with the Federal Clean Air Act, the permit application shall contain an analysis of alternative sites, sizes, production processes, and control techniques for the proposed source. The analysis shall demonstrate that the benefits of the proposed location and source configuration significantly outweigh the environmental and social costs of that location.</content><note type="source"><p>Source Note: The provisions of this §116.151 adopted to be effective September 13, 1993, 18 TexReg 5746; amended to be effective April 7, 1998, 23 TexReg 3515; amended to be effective February 1, 2006, 31 TexReg 515; amended to be effective August 16, 2012, 37 TexReg 6049; amended to be effective July 1, 2021, 46 TexReg 3924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.160"><num value="116.160">§116.160</num><heading>Prevention of Significant Deterioration Requirements</heading><content>(a) Each proposed new major source or major modification in an attainment or unclassifiable area shall comply with the requirements of this section. In addition, each proposed new major source of greenhouse gases (GHGs) or major modification involving GHGs shall comply with the applicable requirements of this section. The owner or operator of a proposed new or modified facility that will be a new major stationary source for the prevention of significant deterioration air contaminant shall meet the additional requirements of subsection (c)(1) - (4) of this section.(b) De minimis threshold test (netting):(1) is required for all modifications to existing major sources of federally regulated new source review pollutants, unless the proposed project emissions increases are less than major modification thresholds for the pollutant identified in 40 Code of Federal Regulations (CFR) §52.21(b)(23); and(2) is required for GHGs at existing major sources if the proposed modification results in an emissions increase as required in §116.164(a)(2) of this title (relating to Prevention of Significant Deterioration Applicability for Greenhouse Gases Sources).(c) In applying the de minimis threshold test (netting), if the net emissions increases are greater than the major modification levels for the pollutant identified in 40 CFR §52.21(b)(23) and for GHGs in §116.164 of this title, the following requirements apply.(1) In addition to those definitions in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions) the following definitions from prevention of significant deterioration of air quality regulations promulgated by the United States Environmental Protection Agency (EPA) in 40 CFR §52.21 and the definitions for protection of visibility and promulgated in 40 CFR §51.301 as amended July 1, 1999, are incorporated by reference:(A) 40 CFR §52.21(b)(12) - (15), concerning best available control technology, baseline concentrations, dates, and areas;(B) 40 CFR §52.21(b)(19), concerning innovative control technology; and(C) 40 CFR §52.21(b)(24) - (28), concerning federal land manager, terrain, and Indian reservations/governing bodies.(2) The following requirements from prevention of significant deterioration of air quality regulations promulgated by the EPA in 40 CFR §52.21 are hereby incorporated by reference:(A) 40 CFR §52.21(c) - (k), concerning increments, ambient air ceilings, restrictions on area classifications, exclusions from increment consumption, redesignation, stack heights, exemptions, control technology review, and source impact analysis;(B) 40 CFR §52.21(m) - (p), concerning air quality analysis, source information, additional impact analysis, and sources impacting federal Class I areas;(C) 40 CFR §52.21(r)(4), concerning relaxation of an enforceable limitation; and(D) 40 CFR §52.21(v), concerning innovative technology.(3) The term "facility" shall replace the words "emissions unit" in the referenced sections of the CFR.(4) The term "executive director" shall replace the word "administrator" in the referenced sections of the CFR except in 40 CFR §52.21(g) and (v).(d) All estimates of ambient concentrations required under this subsection shall be based on the applicable air quality models and modeling procedures specified in the EPA Guideline on Air Quality Models, as amended, or models and modeling procedures currently approved by the EPA for use in the state program, and other specific provisions made in the prevention of significant deterioration state implementation plan. If the air quality impact model approved by the EPA or specified in the guideline is inappropriate, the model may be modified or another model substituted on a case-by-case basis, or a generic basis for the state program, where appropriate. Such a change shall be subject to notice and opportunity for public hearing and written approval of the administrator of the EPA.</content><note type="source"><p>Source Note: The provisions of this §116.160 adopted to be effective September 13, 1993, 18 TexReg 5746; amended to be effective April 5, 1995, 20 TexReg 2052; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective November 1, 2001, 26 TexReg 8539; amended to be effective February 1, 2006, 31 TexReg 515; amended to be effective June 24, 2010, 35 TexReg 5344; amended to be effective April 17, 2014, 39 TexReg 2901; amended to be effective November 22, 2018, 43 TexReg 7540; amended to be effective July1, 2021, 46 TexReg 3924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.161"><num value="116.161">§116.161</num><heading>Source Located in an Attainment Area with a Greater Than De Minimis Impact</heading><content>The commission may not issue a permit to any new major stationary source or major modification located in an area designated as attainment or unclassifiable, for any National Ambient Air Quality Standard (NAAQS) under FCAA, §107, if ambient air impacts from the proposed source would cause or contribute to a violation of any NAAQS. In order to obtain a permit, the source must reduce the impact of its emissions upon air quality by obtaining sufficient emission reductions to eliminate the predicted exceedances of the NAAQS. A major source or major modification will be considered to cause or contribute to a violation of a NAAQS when the emissions from such source or modification would, at a minimum, exceed the de minimis impact levels specified in §101.1 of this title (relating to Definitions) at any locality that is designated as nonattainment or is predicted to be nonattainment for the applicable standard.</content><note type="source"><p>Source Note: The provisions of this §116.161 adopted to be effective September 13, 1993, 18 TexReg 5746; amended to be effective July 8, 1998, 23 TexReg 6973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.162"><num value="116.162">§116.162</num><heading>Evaluation of Air Quality Impacts</heading><content>In evaluating air quality impacts under §116.160 of this title (relating to Prevention of Significant Deterioration Requirements) or §116.161 of this title (relating to Sources Located in an Attainment Area with a Greater Than De Minimis Impact), the owner or operator of a proposed new facility or modification of an existing facility shall not take credit for reductions in impact due to dispersion techniques as defined in Title 40 Code of Federal Regulations (CFR). The relevant federal regulations are incorporated herein by reference, as follows:(1) 40 CFR §51.100(hh) - (kk) promulgated November 7, 1986;(2) the definitions of "owner or operator," "emission limitation and emission standards," "stack," "a stack in existence," and "reconstruction," as given under 40 CFR §51.100(f), (z), (ff), (gg), promulgated November 7, 1986, and 40 CFR §60.15, promulgated December 16, 1975, respectively;(3) 40 CFR §51.118(a) and (b), promulgated November 7, 1986; and(4) 40 CFR §51.164, promulgated November 7, 1986.</content><note type="source"><p>Source Note: The provisions of this §116.162 adopted to be effective September 13, 1993, 18 TexReg 5746; amended to be effective November 1, 2001, 26 TexReg 8539.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.163"><num value="116.163">§116.163</num><heading>Prevention of Significant Deterioration Permit Fees</heading><content>(a) If the estimated capital cost of the project is less than $300,000 or if the project consists of new facilities controlled and operated directly by the federal government for which an application is submitted after January 1, 1987, and the federal regulations for Prevention of Significant Deterioration (PSD) of Air Quality are applicable, the fee is $3,000.(b) If the estimated capital cost of the project is $300,000 or more and the PSD regulations are applicable, the fee is 1.0% of the estimated capital cost of the project. The maximum fee is $75,000.(c) Whenever a permit application is submitted under PSD requirements, there shall be no additional fee for the state new source review permit application.(d) Certification of the estimated capital cost of the project shall be provided in accordance with §116.141(c) and (d) of this title (relating to Determination of Fees).(e) A fee of $75,000 shall be required if no estimate of capital project cost is included with a permit application.</content><note type="source"><p>Source Note: The provisions of this §116.163 adopted to be effective September 13, 1993, 18 TexReg 5746; amended to be effective October 20, 2002, 27 TexReg 9616.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.164"><num value="116.164">§116.164</num><heading>Prevention of Significant Deterioration Applicability for Greenhouse Gases Sources</heading><content>(a) Greenhouse Gases (GHGs) are subject to Prevention of Significant Deterioration (PSD) review under the conditions specified in paragraphs (1) or (2) of this subsection. Projects with increases in GHG emissions do not require a PSD applicability evaluation for GHGs unless the project requires PSD review for a pollutant other than GHGs. (1) New source, major for non-GHGs. The stationary source is a new major stationary source for a federally regulated new source review (NSR) pollutant that is not GHGs, and will emit or have the potential to emit 75,000 tons per year (tpy) or more carbon dioxide equivalent (CO2 e); or (2) Existing source, major for non-GHGs. The stationary source is an existing major stationary source for a federally regulated NSR pollutant that is not GHGs, and will have a significant net emissions increase of a federally regulated NSR pollutant that is not GHGs, and a net emissions increase greater than zero tpy GHGs on a mass basis and 75,000 tpy or more CO2 e. (b) New stationary sources with emissions of GHGs, or existing stationary sources that undertake a physical change or change in the method of operations that includes emissions of GHGs, that do not meet any of the conditions in subsection (a) of this section do not require authorization for emissions of GHGs under this subchapter, Subchapter F of this chapter (relating to Standard Permits), Subchapter G of this chapter (relating to Flexible Permits), or Chapter 106 of this title (relating to Permits by Rule). Owners or operators of these sources must keep records sufficient to demonstrate the amount of emissions of GHGs from the source as a result of construction, a physical change or a change in method of operation do not require authorization under subsection (a) of this section. Records must be made available at the request of personnel from the commission or any local air pollution control agency having jurisdiction. Records must be maintained for a minimum of five years from the date of the construction, physical change, or change in method of operation.</content><note type="source"><p>Source Note: The provisions of this §116.164 adopted to be effective April 17, 2014, 39 TexReg 2901; amended to be effective November 22, 2018, 43 TexReg 7540.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.169"><num value="116.169">§116.169</num><heading>Greenhouse Gases Program Transitions</heading><content>(a) Upon the effective date of the United States Environmental Protection Agency (EPA) approval of this chapter and rescission of the Federal Implementation Plan as published in the May 3, 2011, issue of the Federal Register (76 FR 25178), the commission will accept transfer of and review applications previously filed with EPA for greenhouse gas prevention of significant deterioration permits. These applications will be subject to the applicable requirements of this chapter. (b) Section 116.164 of this title (relating to Prevention of Significant Deterioration Applicability for Greenhouse Gas Sources) will not apply to greenhouse gases at a source that would not be subject to Prevention of Significant Deterioration Review for greenhouse gases under a change in federal law on or after March 26, 2014.</content><note type="source"><p>Source Note: The provisions of this §116.169 adopted to be effective April 17, 2014, 39 TexReg 2901.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.170"><num value="116.170">§116.170</num><heading>Applicability of Emission Reductions as Offsets</heading><content>(a) No reduction may be used as an offset unless it has been certified as an emission credit under Chapter 101, Subchapter H, Division 1 or 4 of this title (relating to Emission Credit Banking and Trading; or Discrete Emission Credit Banking and Trading), except as provided for in subsection (c) of this section.(b) Existing reductions not yet certified and banked as an emission credit must be certified and banked with the executive director by September 1, 2004 in order to be considered for use as an offset.(c) A future reduction may be used as an offset for a permit provided that:(1) the permit contains special conditions that specify the date by which the permit holder must submit to the executive director appropriate and sufficient data to verify that the reduction has occurred and the reduction is provided by start of operation;(2) the reduction must be achieved prior to commencement of the permitted emissions for which the offset is required;(3) the reduction meets all of the requirements of Chapter 101, Subchapter H, Division 1 or 4 of this title when submitted to the executive director for review per the requirements of the issued permit; and(4) the permit holder agrees to obtain additional offsets if the review by the executive director indicates the reductions do not satisfy the original offset requirements.</content><note type="source"><p>Source Note: The provisions of this §116.170 adopted to be effective September 14, 2003, 28 TexReg 7763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.172"><num value="116.172">§116.172</num><heading>Emissions Offsets from Rocket Engine Firing and Cleaning</heading><content>Emissions increases from rocket engine and motor firing, and cleaning related to such firing, at an existing or modified major source, shall be allowed to be offset by alternative or innovative means, provided the following conditions are met.(1) Any modification proposed is solely for the purpose of expanding the testing of rocket engines or motors at an existing source permitted to test such engines as of November 15, 1990.(2) The source demonstrates to the satisfaction of the executive director that it has used all reasonable means to obtain and utilize offsets, as determined on an annual basis, for the emissions increases beyond allowable levels, that all available offsets are being used, and that sufficient offsets are not available to the source.(3) The source has obtained a written finding from the Department of Defense, Department of Transportation, National Aeronautics and Space Administration, or other appropriate federal agency, that the testing of rocket motors or engines at the facility is required for a program essential to the national security.(4) The source will comply with an alternative measure, imposed by the executive director, designed to offset any emissions increases beyond permitted levels not directly offset by the source. In lieu of imposing any alternative offset measures, the executive director may impose an emissions fee to be paid, which shall be an amount no greater than 1.5 times the average cost of stationary source control measures adopted in that area during the previous three years.</content><note type="source"><p>Source Note: The provisions of this §116.172 adopted to be effective September 14, 2003, 28 TexReg 7763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.174"><num value="116.174">§116.174</num><heading>Determination by Executive Director To Authorize Reductions</heading><content>The executive director may grant authority to a permit applicant to use prior emission reductions and emission reductions granted to the applicant by another entity (either public or private) in accordance with §116.170 of this title (relating to Applicability for Reduction Credits) if the commission determines that the prior emission reductions have, in fact, occurred and, when considered with other emission reductions that may be required by the permit as well as contaminants that will be emitted by the new source, will result in compliance with §116.150 of this title (relating to New Major Source or Major Modification in Ozone Nonattainment Areas), §116.151 of this title (relating to New Major Source or Major Modification in Nonattainment Areas Other Than Ozone), §116.160 of this title (relating to Prevention of Significant Deterioration Requirements), and §116.162 of this title (relating to Evaluation of Air Quality Impacts), as applicable, in the area where the new source is to be located. Prior as well as future emission reductions to be used as an offset shall be made conditions for granting authority to construct the proposed new source and shall be enforced.</content><note type="source"><p>Source Note: The provisions of this §116.174 adopted to be effective September 13, 1993, 18 TexReg 5746; amended to be effective July 8, 1998, 23 TexReg 6973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.175"><num value="116.175">§116.175</num><heading>Recordkeeping</heading><content>The executive director will maintain no records of emission offset credits claimed by an applicant in accordance with §116.170 of this title (relating to Applicability for Reduction Credits) other than those contained in permit application and permit files. The applicant shall maintain all records necessary to substantiate claims of emission reductions and shall make such records available for inspection upon request of the executive director.</content><note type="source"><p>Source Note: The provisions of this §116.175 adopted to be effective September 13, 1993, 18 TexReg 5746.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.176"><num value="116.176">§116.176</num><heading>Use of Mass Cap Allowances for Offsets</heading><content>Any allowances required to comply with the mass emission cap under Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program) may be used to meet the correlating portion of the emission offset requirements needed to comply with §116.150 of this title (relating to New Major Source or Major Modification in Ozone Nonattainment Areas).</content><note type="source"><p>Source Note: The provisions of this §116.176 adopted to be effective March 29, 2001, 26 TexReg 2398.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scB/s116.178"><num value="116.178">§116.178</num><heading>Relocations and Changes of Location of Portable Facilities</heading><content>(a) Portable facility requirements. The following requirements apply to portable facilities.(1) A portable permit must be authorized by the executive director and designated with the appropriate portable permit, portable registration, or portable account number.(2) An applicant shall not use a permit by rule or standard permit authorization as a waiver of public notice (public notice requirements as specified in subsection (b)(2) of this section) regardless of the registration number or account code assigned by the executive director. A facility authorized by the Air Quality Standard Permit for Concrete Batch Plants or concrete batch plant permits by rule for which an applicant provided public notice is an exception.(3) The executive director will not convert a permanent facility permit number to a portable designation unless the owner or operator is requesting a change of location as defined in §116.20 of this title (relating to Portable Facilities Definitions) for the facility. The permit holder must publish notice for any change in an existing permit number. The notice must identify the new permit number and the proposed location.(b) Relocation qualifications. The appropriate regional office may approve the relocation of a portable facility if the applicant's permit contains current special conditions defining the approval process to move. A relocation application cannot include a modification. Approval for relocation is based on one of the following conditions:(1) a permitted portable facility and associated equipment are moving to a site for support of a public works project in which the proposed site is located in or contiguous to the right-of-way of the public works project; or(2) a portable facility is moving to a site in which a portable facility has been located at the site at any time during the previous two years and the site was subject to public notice as required under Chapter 39 of this title (relating to Public Notice), the Air Quality Standard Permit for Concrete Batch Plants, or the concrete batch plant permits by rule.(c) Relocation request requirements. The permit holder shall submit a complete written request to the appropriate commission regional office for the new location and obtain written approval before the start of construction and commencement of operations at the new site. The permit holder is responsible for providing proof of submittal for all relocation requests. Construction may begin after receipt of approval from the appropriate commission regional office or 12 business days after the date of postmark or the date of personal delivery of the request, whichever occurs first, unless disapproval is sent within the 12 business days. The permit holder's request is considered approved if the appropriate regional office does not provide approval or denial of a complete submittal within 12 business days; however, the presumed approval does not exempt the applicant from ensuring that public notice was accomplished at the new site as required under Chapter 39 of this title. The relocation request shall contain all of the following information:(1) the company name, address, company contact, and telephone number;(2) a copy of the existing permit conditions and the maximum allowable emission rates table that is in effect for the permitted facility;(3) the regulated entity number (RN), customer reference number (CN), applicable permit or registration numbers, and, if available, the Texas Commission on Environmental Quality account number;(4) the location from which the facility is moving (current location);(5) a location description of the proposed site (city, county, and exact physical location description);(6) a scaled plot plan that identifies the location of all equipment and stockpiles, and also indicates that the required distances to the property lines can be met;(7) a scaled area map that identifies the distance and direction to the closest off-property receptor (if required) and clearly indicates how the proposed site is contiguous or adjacent to the right-of-way of a public works project (if required);(8) the proposed date for start of construction and expected date for start of operation;(9) the expected time period at the proposed site;(10) the permit or registration number of the portable facility that was located at the proposed site any time during the last two years, and the date the facility was last located there. This information is not necessary if the relocation request is for a public works project that is contiguous or adjacent to the right-of-way of a public works project; and(11) proof that the proposed site had accomplished public notice, as required by Chapter 39 of this title. This proof is not necessary if the relocation request is for a public works project that is contiguous or adjacent to the right-of-way of a public works project.(d) Denial of relocation. If the permit holder cannot qualify for a relocation, as described in subsection (c) of this section, the appropriate regional office shall deny the relocation request and the applicant may request a change of location, as defined in §116.20 of this title.(e) Requesting changes to relocation instructions. A permit holder shall request from the executive director a permit alteration, as defined in §116.116(c)(1)(B) of this title (relating to Changes to Facilities), to update relocation instructions. The permit holder may apply for a relocation simultaneously with the alteration. The permit holder shall obtain written approval before the start of construction and commencement of operations at the new site and shall not assume approval within 12 businesses days. The permit holder shall submit the following information for any alteration request and relocation application to the TCEQ Central Office in Austin, Air Permits Division:(1) the required form and attachments, including a detailed plot plan and area map; and(2) a copy of the current permit.(f) Requesting changes of location. For a change of location application, the permit holder shall submit the required form and attachments to the TCEQ Central Office in Austin, Air Permits Division. All applications must include an evaluation of best available control technology and protection of public health and welfare as described in §116.111(a)(2)(C) of this title (relating to General Application).</content><note type="source"><p>Source Note: The provisions of this §116.178 adopted to be effective March 3, 2010, 35 TexReg 1749.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c116/scC"><num value="C">SUBCHAPTER C</num><heading>PLANT-WIDE APPLICABILITY LIMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c116/scC/s116.180"><num value="116.180">§116.180</num><heading>Applicability</heading><content>(a) The following requirements apply to a plant-wide applicability limit (PAL) permit.(1) Only one PAL may be issued for each pollutant at an existing major stationary source.(2) A PAL permit may include more than one PAL.(3) A PAL permit may not cover facilities or emissions units at more than one existing major stationary source.(4) A PAL permit may be consolidated with a new source review permit at the existing major stationary source.(5) A PAL permit can be issued only for an existing major stationary source; it may not be issued for a new major stationary source as defined in 40 Code of Federal Regulations §51.165(a)(1)(iv)(A) and §51.166(b)(1)(i).(b) The new owner of a major stationary source shall comply with §116.110(e) of this title (relating to Applicability), provided that all facilities, or emissions units at a major stationary source, covered by a PAL permit change ownership at the same time and to the same person, or both the new owner and existing permit holder must obtain a PAL permit alteration allocating the emission prior to the transfer of the permit by the commission. After the sale of a facility, or emissions unit at a major stationary source, but prior to the transfer of a permit requiring a permit alteration, the original PAL permit holder remains responsible for ensuring compliance with the existing PAL permit and all rules of the commission.(c) The owner of the facility, emissions unit at a major stationary source, group of facilities, or account or the operator of the facility, emissions unit at a major stationary source, group of facilities, or account that is authorized to act for the owner is responsible for complying with this section, except as provided by subsection (b) of this section.</content><note type="source"><p>Source Note: The provisions of this §116.180 adopted to be effective February 1, 2006, 31 TexReg 515; amended to be effective March 3, 2011, 36 TexReg 1305; amended to be effective August 16, 2012, 37 TexReg 6049.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scC/s116.182"><num value="116.182">§116.182</num><heading>Plant-wide Applicability Limit Permit Application</heading><content>Any application for a new plant-wide applicability limit (PAL) permit or PAL permit amendment must be completed and signed by an authorized representative. In order to be granted a PAL permit or PAL permit amendment, the owner or operator of the proposed facility shall submit information to the commission that demonstrates that all of the following information is submitted:(1) a list of all facilities, or emissions units at a major stationary source, that emit the PAL pollutant, including their registration or permit number, their potential to emit, and the expected maximum capacity. In addition, the owner or operator of the source shall indicate which, if any, federal or state applicable requirements, emission limitations, or work practices apply to each unit;(2) calculations of the baseline actual emissions with supporting documentation;(3) the calculation procedures that the permit holder proposes to use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each month; and(4) the monitoring and recordkeeping proposed satisfy the requirements of §116.186 of this title (relating to General and Special Conditions) for each PAL.</content><note type="source"><p>Source Note: The provisions of this §116.182 adopted to be effective February 1, 2006, 31 TexReg 515; amended to be effective March 3, 2011, 36 TexReg 1305.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scC/s116.184"><num value="116.184">§116.184</num><heading>Application Review Schedule</heading><content>The plant-wide applicability limit permit application will be reviewed by the commission in accordance with §116.114 of this title (relating to Application Review Schedule).</content><note type="source"><p>Source Note: The provisions of this §116.184 adopted to be effective February 1, 2006, 31 TexReg 515.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scC/s116.186"><num value="116.186">§116.186</num><heading>General and Special Conditions</heading><content>(a) The plant-wide applicability limit (PAL) will impose an annual emission limitation in tons per year, that is enforceable for all facilities, or emissions units at a major stationary source, that emit the PAL pollutant. For each month during the PAL effective period after the first 12 months of establishing a PAL, the major stationary source owner or operator shall demonstrate that the sum of the monthly emissions from each facility under the PAL for the previous 12 consecutive months is less than the PAL (a 12-month average, rolled monthly). For each month during the first 11 months from the PAL effective date, the major stationary source owner or operator shall demonstrate that the sum of the preceding monthly emissions from the PAL effective date for each facility under the PAL is less than the PAL. Each PAL must include emissions of only one pollutant. The PAL must include all emissions, including fugitive emissions, to the extent quantifiable, from all facilities or emissions units at a major stationary source included in the PAL that emit or have the potential to emit the PAL pollutant.(b) The following general conditions are applicable to every PAL permit.(1) Applicability. This section does not authorize any facility to emit air pollutants but establishes an annual emissions level below which new and modified facilities, or emissions units at a major stationary source, will not be subject to major new source review for that pollutant.(2) Sampling requirements. If sampling of stacks or process vents is required, the PAL permit holder shall contact the commission's Office of Compliance and Enforcement prior to sampling to obtain the proper data forms and procedures. All sampling and testing procedures must be approved by the executive director and coordinated with the appropriate regional office of the commission. The PAL permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant.(3) Equivalency of methods. The permit holder shall demonstrate the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the PAL permit. Alternative methods must be applied for in writing and must be reviewed and approved by the executive director prior to their use in fulfilling any requirements of the permit.(4) Recordkeeping and reporting.(A) A copy of the PAL permit along with information and data sufficient to demonstrate continuous compliance with the emission caps contained in the PAL permit must be maintained in a file at the plant site and made available at the request of personnel from the commission or any air pollution control program having jurisdiction. For facilities that normally operate unattended, this information must be maintained at the nearest staffed location within Texas specified by the permit holder in the permit application. This information must include, but is not limited to, emission cap and individual emission limitation calculations based on a 12-month rolling basis and production records and operating hours. Additional recordkeeping requirements may be specified in special conditions attached to the PAL permit.(B) The owner or operator shall retain a copy of the PAL permit application and any applications for revisions to the PAL, each annual certification of compliance under §122.146 of this title (relating to Compliance Certification Terms and Conditions), and the data relied on in certifying the compliance for the duration of the PAL plus five years.(C) A semiannual report shall be submitted to the executive director within 30 days of the end of each reporting period that contains:(i) the identification of owner and operator and the permit number;(ii) total annual emissions (in tons per year) based on a 12-month rolling total for each month in the reporting period;(iii) all data relied upon, including, but not limited to, any quality assurance or quality control data, in calculating the monthly and annual PAL pollutant emissions;(iv) a list of any facility modified or added to the major stationary source during the preceding six-month period;(v) the number, duration, and cause of any deviations or monitoring malfunctions (other than the time associated with zero and span calibration checks), and any corrective action taken. This may be satisfied by referencing the PAL permit number in the semiannual report for the site submitted under §122.145 of this title (relating to Reporting Terms and Conditions);(vi) a notification of a shutdown of any monitoring system, whether the shutdown was permanent or temporary, the reason for the shutdown, the anticipated date that the monitoring system will be fully operational or replaced with another monitoring system, and whether the emissions unit monitored by the monitoring system continued to operate, and the calculation of the emissions of the pollutant or the number determined by method included in the permit; and(vii) a signed statement by the responsible official, as defined in §122.10 of this title (relating to General Definitions), certifying the truth, accuracy, and completeness of the information provided in the report.(D) The owner or operator shall submit the results of any revalidation test or method to the executive director within three months after completion of such test or method.(5) Maintenance of emission control. The facilities covered by the PAL permit will not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations.(6) Compliance with rules. Acceptance of a PAL permit by a permit applicant constitutes an acknowledgment and agreement that the holder will comply with all rules and orders of the commission issued in conformity with the Texas Clean Air Act and the conditions precedent to the granting of the permit. If more than one state or federal rule or PAL permit condition is applicable, the most stringent limit or condition will govern and be the standard by which compliance must be demonstrated. Acceptance includes consent to the entrance of commission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the PAL permit.(7) Effective period. A PAL is effective for ten years.(8) Absence of monitoring data. A source owner or operator shall record and report maximum potential emissions without considering enforceable emission limitations or operational restrictions for a facility during any period of time that there is no monitoring data, unless another method for determining emissions during such periods is specified in the PAL permit special conditions.(9) Monitoring system requirements. Failure to use a monitoring system that meets the requirements of this section renders the PAL permit invalid.(10) Revalidation. All data used to establish the PAL pollutant must be revalidated through performance testing or other scientifically valid means approved by the executive director. Such testing must occur at least once every five years after issuance of the PAL.(11) Renewal. If a PAL renewal application is submitted to the executive director in accordance with §116.196 of this title (relating to Renewal of a Plant-wide Applicability Limit Permit), the PAL shall not expire at the end of the PAL effective period. It shall remain in effect until a renewed PAL permit is issued by the executive director or the application is voided.(c) Each PAL permit must include special conditions that satisfy the following requirements.(1) For the purposes of this subchapter, the definitions of the following terms are the same as those provided in 40 Code of Federal Regulations §51.165.(A) Continuous emission monitoring system (CEMS).(B) Continuous emissions rate monitoring system (CERMS).(C) Continuous parameter monitoring system (CPMS).(D) Predictive emissions monitoring system (PEMS).(2) The PAL monitoring system must accurately determine all emissions of the PAL pollutant in terms of mass per unit of time. Any monitoring system authorized for use in the PAL permit must be based on sound science and meet generally acceptable scientific procedures for data quality and manipulation.(3) The PAL monitoring system must employ one or more of the general monitoring approaches meeting the minimum requirements as described in subparagraphs (A) - (D) of this paragraph.(A) An owner or operator using mass balance calculations to monitor PAL pollutant emissions from activities using coating or solvents shall meet the following requirements:(i) provide a demonstrated means of validating the published content of the PAL pollutant that is contained in, or created by, all materials used in or at the facility;(ii) assume that the facility emits all of the PAL pollutant that is contained in, or created by, any raw material or fuel used in or at the facility, if it cannot otherwise be accounted for in the process; and(iii) where the vendor of a material or fuel that is used in or at the facility publishes a range of pollutant content from such material, the owner or operator shall use the highest value of the range to calculate the PAL pollutant emissions unless the executive director determines that there is site-specific data or a site-specific monitoring program to support another content within the range.(B) An owner or operator using a CEMS to monitor PAL pollutant emissions shall meet the following requirements.(i) The CEMS must comply with applicable performance specifications found in 40 Code of Federal Regulations Part 60, Appendix B.(ii) The CEMS must sample, analyze, and record data at least every 15 minutes while the emissions unit is operating.(C) An owner or operator using CPMS or PEMS to monitor PAL pollutant emissions shall meet the following requirements.(i) The CPMS or the PEMS must be based on current site-specific data demonstrating a correlation between the monitored parameter(s) and the PAL pollutant emissions across the range of operation of the facility.(ii) Each CPMS or PEMS must sample, analyze, and record data at least every 15 minutes or at another less frequent interval approved by the executive director, while the facility is operating.(D) An owner or operator using emission factors to monitor PAL pollutant emissions shall meet the following requirements.(i) All emission factors must be adjusted, if appropriate, to account for the degree of uncertainty or limitations in the factors' development.(ii) The facility must operate within the designated range of use for the emission factor, if applicable.(iii) If technically practicable, the owner or operator of a significant facility that relies on an emission factor to calculate PAL pollutant emissions shall conduct validation testing to determine a site-specific emission factor within six months of PAL permit issuance, unless the executive director determines that testing is not required.(E) An alternative monitoring approach must meet the requirements in paragraph (1) of this subsection and be approved by the executive director.(4) Where an owner or operator of a facility cannot demonstrate a correlation between a monitored parameter(s) and the PAL pollutant emissions rate at all operating points of the facility, the executive director shall:(A) establish default value(s) for determining compliance with the PAL based on the highest potential emissions reasonably estimated at such operating point(s); or(B) determine that operation of the facility during operating conditions when there is no correlation between monitored parameter(s) and the PAL pollutant emissions is a violation of the PAL.</content><note type="source"><p>Source Note: The provisions of this §116.186 adopted to be effective February 1, 2006, 31 TexReg 515; amended to be effective March 3, 2011, 36 TexReg 1305; amended to be effective August 16, 2012, 37 TexReg 6049.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scC/s116.188"><num value="116.188">§116.188</num><heading>Plant-wide Applicability Limit</heading><content>The plant-wide applicability limit (PAL) is the sum of the baseline actual emissions of the PAL pollutant for each existing facility at the source to be covered. The allowable emission rate may be used for facilities that did not exist in the baseline period. Baseline actual emissions from facilities that were permanently shut down after the baseline period must be subtracted from the baseline emissions rate.(1) An amount equal to the applicable significant level for the PAL pollutant may be added to the baseline actual emissions when establishing the PAL.(2) When establishing the PAL level for a PAL pollutant, only one consecutive 24-month period must be used to determine the baseline actual emissions for all existing facilities. However, a different consecutive 24-month period may be used for each different PAL pollutant.(3) The executive director shall specify a reduced PAL level(s) in the PAL permit, to become effective on the future compliance date(s) of any applicable federal or state regulatory requirement.</content><note type="source"><p>Source Note: The provisions of this §116.188 adopted to be effective February 1, 2006, 31 TexReg 515; amended to be effective March 3, 2011, 36 TexReg 1305.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scC/s116.190"><num value="116.190">§116.190</num><heading>Federal Nonattainment and Prevention of Significant Deterioration Review</heading><content>(a) An increase in emissions from operational or physical changes at a facility, or emissions unit at a major stationary source, covered by a plant-wide applicability limit (PAL) permit is insignificant, for the purposes of major new source review under this subchapter, if the increase does not exceed the PAL.(b) At no time are emissions reductions of a PAL pollutant that occur during the PAL effective period creditable as decreases for purposes of offsets, unless the level of the PAL is reduced by the amount of such emissions reductions and such reductions would be creditable in the absence of the PAL.(c) A physical or operational change not causing an exceedance of a PAL is not subject to federal restrictions on relaxing enforceable emission limitations to avoid new source review.</content><note type="source"><p>Source Note: The provisions of this §116.190 adopted to be effective February 1, 2006, 31 TexReg 515; amended to be effective March 3, 2011, 36 TexReg 1305.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scC/s116.192"><num value="116.192">§116.192</num><heading>Amendments and Alterations</heading><content>(a) Any increase in a plant-wide applicability limit (PAL) must be made through amendment. Amendment applications must also include the information identified in §116.182 of this title (relating to Plant-wide Applicability Limit Permit Application) for new and modified facilities contributing to the increase in emissions so as to cause the major stationary source's emissions to equal or exceed its PAL and are subject to the public notice requirements under §116.194 of this title (relating to Public Notice and Comment).(1) As part of this application, the major stationary source owner or operator shall demonstrate that the sum of the baseline actual emissions of the small facilities, plus the sum of the baseline actual emissions of the significant and major facilities assuming application of federal best available control technology (BACT) (as identified in §116.160(c)(1)(A) of this title (relating to Prevention of Significant Deterioration Requirements)) equivalent controls, plus the sum of the allowable emissions of the new or modified facilities exceeds the PAL. The level of control that would result from federal BACT equivalent controls on each significant or major facility shall be determined by conducting a new federal BACT analysis at the time the application is submitted, unless the facility is currently required to comply with a federal BACT or lowest achievable emission rate (LAER) requirement that was established within the preceding ten years. In such a case, the assumed control level for that emissions unit shall be equal to the level of federal BACT or LAER with which that emissions unit must currently comply.(2) The owner or operator shall obtain a major new source review permit under applicable provision of Subchapter B, Division 5 and Division 6 of this chapter (relating to Nonattainment Review Permits; and Prevention of Significant Deterioration Review, respectively) for all facilities contributing to the increase in emissions so as to cause the major stationary source's emissions to equal or exceed its PAL, regardless of the magnitude of the emissions increase. These facilities shall comply with any emissions requirements resulting from the major new source review process.(3) The PAL permit shall require that the increased PAL level be effective on the day any emission unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.(4) The new PAL shall be the sum of the allowable emissions for each modified or new facility, plus the sum of the baseline actual emissions of the significant and major emissions units after the application of federal BACT equivalent controls as identified in paragraph (1) of this subsection, plus the sum of the baseline actual emissions of the small emissions units.(b) Changes to PAL permits that do not require the PAL to be increased must be completed through permit alteration. Unless allowed in the PAL permit special conditions, the permit holder shall submit an alteration request prior to start of construction for physical modifications to facilities or installation of new facilities under the PAL. Approval must be received from the executive director prior to start of operation of the facilities if the emissions from the new or modified facilities may exceed 100 tons per year.(c) Acceptance of a PAL permit is agreement by the permit holder for the executive director to reopen the PAL permit consistent with the requirements of §116.194 of this title for any actions in paragraphs (1) or (2) of this subsection.(1) During the PAL effective period, the executive director shall reopen the PAL permit to:(A) correct typographical or calculation errors made in setting the PAL or reflect a more accurate determination of emissions used to establish the PAL;(B) decrease the PAL limit the owner or operator of the major stationary source creates creditable emissions reductions that meet the requirements of 40 Code of Federal Regulations (CFR) §51.165(a)(3)(ii) for use as offsets; and(C) revise the PAL to reflect an increase in the PAL provided the owner or operator complies with the requirements of 40 CFR §52.21(aa)(11) and §51.165(f)(11).(2) During the PAL effective period, the executive director may reopen the PAL permit for the following:(A) revise the PAL to reflect newly applicable federal requirements (for example, New Source Performance Standards) with compliance dates after the PAL effective date;(B) revise the PAL to be consistent with any other requirement, that is enforceable as a practical matter, and that the State may impose on the major stationary source under the state Implementation Plan; or(C) reduce the PAL if the reviewing authority determines that a reduction is necessary to avoid causing or contributing to a National Ambient Air Quality Standard or Prevention of Significant Deterioration increment violation, or to an adverse impact on an air quality related value that has been identified for a Federal Class I area by a federal land manager and for which information is available to the general public.</content><note type="source"><p>Source Note: The provisions of this §116.192 adopted to be effective February 1, 2006, 31 TexReg 515; amended to be effective March 3, 2011, 36 TexReg 1305.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scC/s116.194"><num value="116.194">§116.194</num><heading>Public Notice and Comment</heading><content>(a) Applications for establishment or renewal of, or an increase in, a plant-wide applicability limit permit under this division are subject to the notice and comment requirements in Chapter 39 of this title (relating to Public Notice).(b) Nothing in this section exempts an applicant for a new source review permit from the requirements of Subchapter B of this chapter (relating to New Source Review Permits).</content><note type="source"><p>Source Note: The provisions of this §116.194 adopted to be effective February 1, 2006, 31 TexReg 515; amended to be effective June 24, 2010, 35 TexReg 5331.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scC/s116.196"><num value="116.196">§116.196</num><heading>Renewal of a Plant-wide Applicability Limit Permit</heading><content>(a) The executive director shall provide written notice to each plant-wide applicability limit (PAL) permit holder that the permit is scheduled for review. Such notice must be provided by certified or registered United States mail, or an electronic method which can provide verification of receipt of the notice, no less than 12 months prior to the scheduled expiration of the PAL permit. The notice must specify the procedure for filing an application for review and the information to be included in the application. Under Texas Occupations Code, §55.002, the commission shall exempt a permit holder from any increased fee or other penalty for failure to renew the permit if the individual establishes, to the satisfaction of the commission, that the failure to renew in a timely manner occurred because the individual was on active duty in the United States Armed Forces serving outside the State of Texas.(b) A stationary source owner or operator shall submit a timely application to the executive director to request renewal of a PAL permit. A timely application is one that is submitted at least six months prior to, but not earlier than 18 months from, the date of permit expiration. If the owner or operator of a stationary source submits a complete application to renew the PAL permit within this time period, then the permit will continue to be effective until the revised permit with the renewed PAL is issued or the PAL permit is voided.(c) All PAL permits issued prior to the effective date of this section are subject to the renewal requirements under this section. These permits must be renewed by December 31, 2006, or within the time frame specified in subsection (b) of this section, whichever is later.(d) The following information must be submitted with a PAL renewal application:(1) a proposed PAL level;(2) information as identified in §116.182(1) of this title (relating to Plant-wide Applicability Limit Permit Application); and(3) any other information the owner or operator wants the executive director to consider in determining the appropriate level for renewing the PAL.(e) The proposed PAL level and a written rationale for the proposed PAL level are subject to the public notice requirements in §116.194 of this title (relating to Public Notice and Comment). During such public review, any person may propose a PAL level for the source for consideration by the executive director.(f) The renewed PAL shall not exceed the potential to emit for the source and shall not be set at a level higher than the current PAL, unless the PAL is being amended in accordance with §116.192(a) of this title (relating to Amendments and Alterations) concurrently with the renewal. The executive director may adjust the renewed PAL in accordance with the following.(1) If the emissions level calculated in accordance with §116.188 of this title (relating to Plant-wide Applicability Limit) is equal to or greater than 80% of the PAL level, the PAL may be renewed at the same level.(2) If the emissions level calculated in accordance with §116.188 of this title is less than 80% of the PAL level, the executive director may set the PAL at a level that is determined to be more representative of the source's baseline actual emissions, or that is determined to be more appropriate considering air quality needs, advances in control technology, anticipated economic growth in the area, desire to reward or encourage the source's voluntary emissions reductions, or other factors as specifically identified by the executive director in written rationale.(g) If the compliance date for a state or federal requirement that applies to the PAL source occurs during the PAL effective period, and if the executive director has not already adjusted for such requirement, the PAL shall be adjusted at the time of PAL permit renewal or federal operating permit renewal, whichever occurs first.</content><note type="source"><p>Source Note: The provisions of this §116.196 adopted to be effective February 1, 2006, 31 TexReg 515; amended to be effective November 22, 2018, 43 TexReg 7540.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scC/s116.198"><num value="116.198">§116.198</num><heading>Expiration or Voidance</heading><content>(a) A plant-wide applicability limit (PAL) permit shall expire ten years after the date of issuance if the renewal application is not submitted in accordance with §116.196(b) of this title (relating to Renewal of a Plant-wide Applicability Limit Permit).(b) Owners or operators of major stationary sources who decide not to renew their PAL will, within the time frame specified for PAL renewal applications in §116.196(b) of this title, submit a proposed allowable emission limitation for each facility (or each group of facilities, if such a distribution is more appropriate as decided by the executive director) by distributing the PAL allowable emissions for the major stationary source among each of the facilities that existed under the PAL. If the PAL had not yet been adjusted for an applicable requirement that became effective during the PAL effective period, the distribution shall be made as if the PAL had been adjusted.(c) The executive director shall decide whether and how the PAL allowable emissions will be distributed and issue a revised permit incorporating allowable limits for each facility, or each group of facilities, as the executive director determines is appropriate. Each facility shall comply with the allowable emission limitation on a 12-month rolling basis. The executive director may approve the use of monitoring systems (source testing, emission factors, etc.) other than a continuous emission monitoring system, continuous emission rate monitoring system, predictive emission monitoring system, or continuous parameter monitoring system to demonstrate compliance with the allowable emission limitation.(1) Until the executive director issues the revised permit incorporating allowable limits for each facility, or each group of facilities, the source shall continue to comply with a source-wide, multi-unit emissions cap equivalent to the level of the PAL emission limitation.(2) Any physical change or change in the method of operation at the major stationary source will be subject to federal new source review requirements if the change meets the definition of major modification in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Definitions).(3) The major stationary source owner or operator shall continue to comply with any state or federal applicable requirements that applied during the PAL effective period.</content><note type="source"><p>Source Note: The provisions of this §116.198 adopted to be effective February 1, 2006, 31 TexReg 515; amended to be effective November 22, 2018, 43 TexReg 7540.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c116/scD"><num value="D">SUBCHAPTER D</num><heading>PERMIT RENEWALS</heading><section identifier="/us/state/tx/tac/t30/p1/c116/scD/s116.310"><num value="116.310">§116.310</num><heading>Notification of Permit Holder</heading><content>The executive director shall provide written notice to the permit holder that the permit is scheduled for review. Such notice must be provided by certified or registered United States mail, or an electronic method which can provide verification of receipt of the notice, no less than 12 months prior to the expiration of the permit. The notice must specify the procedure for filing an application for review and the information to be included in the application. Under Texas Occupations Code, §55.002, the commission shall exempt a permit holder from any increased fee or other penalty for failure to renew the permit if the individual establishes, to the satisfaction of the commission, that the failure to renew in a timely manner occurred because the individual was on active duty in the United States Armed Forces serving outside the State of Texas.</content><note type="source"><p>Source Note: The provisions of this §116.310 adopted to be effective July 8, 1998, 23 TexReg 6973; amended to be effective November 22, 2018, 43 TexReg 7540.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scD/s116.311"><num value="116.311">§116.311</num><heading>Permit Renewal Application</heading><content>(a) In order to be granted a permit renewal, the permit holder shall submit information in support of the application which demonstrates that:(1) dockside vessel emissions associated with the facility will comply with all rules and regulations of the commission and with the intent of the TCAA, including protection of the health and property of the public and minimization of emissions to the extent possible, consistent with good air pollution practices.(2) the facility is being operated in accordance with all requirements and conditions of the existing permit, including representations in the application for permit to construct and subsequent amendments, and any previously granted renewal, unless otherwise authorized for a qualified facility;(3) the facility meets the requirements of any applicable New Source Performance Standards as listed under Title 40 Code of Federal Regulations (CFR) Part 60, promulgated by the EPA under the authority of the FCAA, §111, as amended;(4) the facility meets the requirements of any applicable emission standard for hazardous air pollutants as listed under Title 40 CFR Part 61, promulgated by EPA under the authority of the FCAA, §112, as amended; and(5) the facility meets the requirements of any applicable maximum achievable control technology standard as listed under 40 CFR Part 63, promulgated by the EPA under FCAA, §112 or as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR 63)).(6) the facility meets the requirements of Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)).(b) In addition to the requirements in subsection (a) of this section, if the commission determines it necessary to avoid a condition of air pollution or to ensure compliance with otherwise applicable federal or state air quality control requirements, then:(1) the applicant may be required to submit additional information regarding the emissions from the facility and their impacts on the surrounding area; and(2) the commission shall impose as a condition for renewal only those requirements the executive director determines to be economically reasonable and technically practicable considering the age of the facility and the impact of its emissions on the surrounding area.(c) A compliance history review must be conducted in accordance with Chapter 60 of this title (relating to Compliance History).</content><note type="source"><p>Source Note: The provisions of this §116.311 adopted to be effective July 8, 1998, 23 TexReg 6973; amended to be effective September 12, 2002, 27 TexReg 8546.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scD/s116.312"><num value="116.312">§116.312</num><heading>Public Notification and Comment Procedures</heading><content>The executive director shall mail a written notice to the permit holder within 30 days after receipt of a complete application. The notice will confirm receipt of the application and shall require the applicant to provide public notice of the application for permit renewal in accordance with Chapter 39 of this title (relating to Public Notice).</content><note type="source"><p>Source Note: The provisions of this §116.312 adopted to be effective July 8, 1998, 23 TexReg 6973; amended to be effective September 23, 1999, 24 TexReg 8296.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scD/s116.313"><num value="116.313">§116.313</num><heading>Renewal Application Fees</heading><content>(a) The fee for renewal is based on the total annual allowable emissions from the permitted facility to be renewed, according to the following table. Attached Graphic(b) Fees are due and payable at the time the renewal application is filed. No fee will be accepted before the permit holder has been notified by the commission that the permit is scheduled for review. All permit review fees shall be remitted by check, certified check, electronic funds transfer, or money order payable to the Texas Commission on Environmental Quality (TCEQ) and mailed to the TCEQ, P.O. Box 13088, MC 214, Austin, Texas 78711-3088. Required fees must be received before the agency will consider an application to be complete.</content><note type="source"><p>Source Note: The provisions of this §116.313 adopted to be effective July 8, 1998, 23 TexReg 6973; amended to be effective October 20, 2002, 27 TexReg 9616; amended to be effective September 14, 2003, 28 TexReg 7763.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scD/s116.314"><num value="116.314">§116.314</num><heading>Review Schedule</heading><content>(a) Renewal of permit. The executive director shall renew a permit and notify the permit holder in writing if it is determined that the facility meets the requirements of this subchapter.(b) Denial of renewal. Prior to denial, the executive director shall provide notice to the permit holder with a report which describes the basis for denial.(1) If denial is based on failure to meet the requirements of §116.311(a) or (b) of this title (relating to Permit Renewal Application), the report shall establish a schedule for compliance with the renewal requirements.(A) The report shall be forwarded to the permit holder no later than 180 days after the commission receives a completed application.(B) The permit shall be renewed if the requirements are met according to the schedule specified in the report. The executive director shall notify the permit holder in writing of the permit renewal.(2) If denial is based on failure to maintain substantial compliance with the TCAA or the terms of the existing permit under §116.311(c) of this title, the renewal denial shall be final. The executive director shall notify the permit holder in writing of the denial.(c) Contested case hearing. After failure to satisfy the commission requirements for corrective action by the deadline specified in the executive director's report, the applicant shall show cause in a contested case proceeding why the permit should not expire. The proceeding will be conducted under the APA and Chapters 1, 55, and 80 of this title (relating to Purpose of Rules, General Provisions; Request for Contested Case Hearings; Public Comment; and Contested Case Hearings).(d) Effective date of existing permit. An existing permit shall remain effective:(1) until it is renewed;(2) until the deadline specified in the executive director's report to the permit holder;(3) during the course of a contested case hearing if the hearing extends beyond the expiration date; or(4) until a date specified in any commission order entered following a contested case hearing.</content><note type="source"><p>Source Note: The provisions of this §116.314 adopted to be effective July 8, 1998, 23 TexReg 6973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scD/s116.315"><num value="116.315">§116.315</num><heading>Permit Renewal Submittal</heading><content>(a) With the exception of subsections (b) and (c) of this section, an application for renewal must be submitted at least six months, but no earlier than 18 months, prior to expiration of the permit or the permit will expire.(b) With executive director approval, the application may be submitted before or after the time period specified in subsection (a) of this section.(c) A renewal application with appropriate fee may be submitted at the same time as an amendment application to modify an existing facility as long as it is submitted not more than three years before the permit's expiration date and the amendment is subject to public notice requirements under Texas Health and Safety Code, §382.056, Notice of Intent to Obtain Permit or Permit Review; Hearing.(d) Any permit issued:(1) before December 1, 1991, is subject for review 15 years after the date of issuance;(2) on or after December 1, 1991, is subject for review every ten years after the date of issuance; or(3) at non-federal sources on or after December 1, 1991, may, for cause, contain a provision requiring renewal between five and ten years.</content><note type="source"><p>Source Note: The provisions of this §116.315 adopted to be effective September 12, 2002, 27 TexReg 8546; amended to be effective September 14, 2003, 28 TexReg 7763; amended to be effective May 29, 2008, 33 TexReg 4155.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c116/scE"><num value="E">SUBCHAPTER E</num><heading>HAZARDOUS AIR POLLUTANTS: REGULATIONS GOVERNING CONSTRUCTED OR RECONSTRUCTED MAJOR SOURCES (FCAA, §112(g), 40 CFR PART 63)</heading><section identifier="/us/state/tx/tac/t30/p1/c116/scE/s116.400"><num value="116.400">§116.400</num><heading>Applicability</heading><content>(a) The provisions of this subchapter implement Federal Clean Air Act (FCAA), §112(g), Modifications, and 40 Code of Federal Regulations (CFR) Part 63, Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources, Subpart B, Requirements for Control Technology, as amended December 27, 1996. Affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to this subchapter are those sources for which the United States Environmental Protection Agency has not promulgated a maximum available control technology (MACT) standard under 40 CFR Part 63. For purposes of this subchapter, the following terms apply.(1) Construct a major source--As follows.(A) To fabricate, erect, or install at any green field site a stationary source or group of stationary sources that are located within a contiguous area and under common control and that emit or have the potential to emit ten tons per year of any hazardous air pollutant (HAP) or 25 tons per year of any combination of HAPs;(B) to fabricate, erect, or install at any developed site a new process or production unit that in and of itself emits or has the potential to emit ten tons per year of any HAP or 25 tons per year of any combination of HAPs, unless the process or production unit satisfies clauses (i) - (vi) of this subparagraph:(i) all HAPs emitted by the process or production unit that would otherwise be controlled under the requirements of this subchapter will be controlled by emission control equipment that was previously installed at the same site as the process or production unit;(ii) either of the following regarding control of HAP emissions:(I) the executive director has determined within a period of five years prior to the fabrication, erection, or installation of the process or production unit that the existing emission control equipment represented best available control technology (BACT), lowest achievable emission rate (LAER) under 40 CFR Part 51 or Part 52, toxics-best available control technology (T-BACT), or MACT based on state air toxic rules for the category of pollutants that includes those HAPs to be emitted by the process or production unit; or(II) the executive director determines that the control of HAP emissions provided by the existing equipment will be equivalent to that level of control currently achieved by other similar sources using a level of control equivalent to current BACT, LAER, T-BACT, or state air toxic rule MACT determination;(iii) the executive director determines that the percent control efficiency for emissions of HAP from all sources to be controlled by the existing control equipment will be equivalent to the percent control efficiency provided by the control equipment prior to the inclusion of the new process or production unit;(iv) the executive director has provided notice and an opportunity for public comment concerning the determination that criteria in clauses (i) - (iii) of this subparagraph apply and concerning the continued adequacy of any prior LAER, BACT, T-BACT, or state air toxic rule MACT determination;(v) if any commenter has asserted that a prior LAER, BACT, T-BACT, or state air toxic rule MACT determination is no longer adequate, the executive director has determined that the level of control required by that prior determination remains adequate; and(vi) any emission limitations, work practice requirements, or other terms and conditions upon which the determinations in clauses (i) - (v) of this subparagraph are predicated will be construed by the executive director as applicable requirements under FCAA, §504(a), and either have been incorporated into any existing permit issued under Chapter 122 of this title (relating to Federal Operating Permits) for the affected source (as defined in §116.15(1) of this title) or will be incorporated into such permit upon issuance.(2) Reconstruct a major source--The replacement of components at an existing process or production unit that in and of itself emits or has the potential to emit ten tons per year of any HAP or 25 tons per year of any combination of HAP, whenever:(A) the fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable process or production unit; and(B) it is technically and economically feasible for the reconstructed major source to meet the applicable MACT emission limitation for new sources established under this subchapter.(b) The requirements of this subchapter apply to an owner or operator of an affected source (as defined in §116.15(1) of this title) that constructs or reconstructs, unless the affected source in question has been specifically regulated or exempted from regulation under a standard issued under FCAA, §112(d), (h), or (j) and incorporated in another subpart of 40 CFR Part 63, or the owner or operator of such affected source has received all necessary air quality permits for such construction or reconstruction project.(c) Affected sources (as defined in §116.15(1) of this title) subject to the requirements of this subchapter are not eligible to use a standard permit under Subchapter F of this chapter (relating to Standard Permits) unless the terms and conditions of the specific standard permit meet the requirements of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §116.400 adopted to be effective February 1, 2006, 31 TexReg 515.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scE/s116.402"><num value="116.402">§116.402</num><heading>Exclusions</heading><content>(a) The requirements of this subchapter do not apply to electric utility steam generating units unless and until such time as these units are added to the source category list under Federal Clean Air Act, §112(c)(5).(b) The requirements of this subchapter do not apply to stationary sources that are within a source category that has been deleted from the source category list under Federal Clean Air Act, §112(c)(9).(c) The requirements of this subchapter do not apply to research and development activities, as defined in 40 Code of Federal Regulations, §63.41.(d) Nothing in this subchapter shall prevent a state or local agency from imposing more stringent requirements than those contained in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §116.402 adopted to be effective February 1, 2006, 31 TexReg 515.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scE/s116.404"><num value="116.404">§116.404</num><heading>Application</heading><content>Consistent with the requirements of 40 Code of Federal Regulations §63.43 (concerning maximum achievable control technology determinations for constructed and reconstructed major sources), the owner or operator of a proposed affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) shall submit a permit application as described in §116.110 of this title (relating to Applicability).</content><note type="source"><p>Source Note: The provisions of this §116.404 adopted to be effective February 1, 2006, 31 TexReg 515.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scE/s116.406"><num value="116.406">§116.406</num><heading>Public Notice Requirements</heading><content>Proposed affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) shall comply with the public notice requirements contained in Chapter 39 of this title (relating to Public Notice).</content><note type="source"><p>Source Note: The provisions of this §116.406 adopted to be effective February 1, 2006, 31 TexReg 515.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c116/scF"><num value="F">SUBCHAPTER F</num><heading>STANDARD PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c116/scF/s116.601"><num value="116.601">§116.601</num><heading>Types of Standard Permits</heading><content>(a) For the purposes of this chapter a standard permit is either:(1) one that was adopted by the commission in accordance with Texas Government Code, Chapter 2001, Subchapter B, into this subchapter; or(2) one that is issued by the commission in accordance with §116.603 of this title (relating to Public Participation in Issuance of Standard Permits).(b) Any standard permit in this subchapter adopted by the commission shall remain in effect until it is repealed under the APA. If any adopted standard permit is repealed and replaced, facilities may continue to be authorized until the date of registration required by subsection (e) of this section.(c) A registration to use a standard permit adopted by the commission in this subchapter shall be renewed by the applicant under the requirements of §116.604 of this title (relating to Duration and Renewal of Registrations to use Standard Permits) by the tenth anniversary of the date of the original registration.(d) If a standard permit in this subchapter adopted by the commission is repealed and replaced, with no changes, by a standard permit issued by the commission, any existing registration to use the repealed standard permit will be automatically converted to a registration to use the new standard permit, if the facility continues to meet the requirements. An automatically converted registration to use a standard permit shall be renewed by the applicant under the requirements of §116.604 of this title by the tenth anniversary of the date of the new registration.(e) If a standard permit adopted by the commission in this subchapter is repealed and replaced with a standard permit issued by the commission, and the requirements of the standard permit are changed in the process, persons registered to use the repealed standard permit shall register to use the issued standard permit by the later of either the deadline established in the issued standard permit, or the tenth anniversary of the original registration. The commission shall notify, in writing, all persons registered to use the repealed standard permit of the date by which a new registration must be submitted. Persons not wishing to register for the issued standard permit shall have the option of applying for or qualifying for other applicable authorizations in this chapter or in Chapter 106 of this title (relating to Exemptions from Permitting).</content><note type="source"><p>Source Note: The provisions of this §116.601 adopted to be effective January 11, 2000, 25 TexReg 150; amended to be effective March 3, 2011, 36 TexReg 1305.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scF/s116.602"><num value="116.602">§116.602</num><heading>Issuance of Standard Permits</heading><content>(a) The commission may issue a standard permit under the procedures in §116.603 of this title (relating to Public Participation in Issuance of Standard Permits) if the commission finds that:(1) the standard permit is enforceable; and(2) the commission can adequately monitor compliance with the terms of the standard permit.(b) The commission may issue standard permits for:(1) grandfathered facilities. Standard permits for use by grandfathered facilities before September 1, 2001 are not required to meet best available control technology;(2) the installation of emission control equipment that constitutes a modification or a new facility under TCAA, §382.057.(c) Other than the standard permits issued for use under subsection (b)(1) and (2) of this section, all standard permits issued by the commission under this chapter shall require best available control technology.</content><note type="source"><p>Source Note: The provisions of this §116.602 adopted to be effective January 11, 2000, 25 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scF/s116.603"><num value="116.603">§116.603</num><heading>Public Participation in Issuance of Standard Permits</heading><content>(a) The commission will publish notice of a proposed standard permit in a daily or weekly newspaper of general circulation in the area affected by the activity that is the subject of the proposed standard permit. If the proposed standard permit will have statewide applicability, notice will be published in the daily newspaper of largest general circulation within each of the following metropolitan areas: Austin, Dallas, and Houston and any other regional newspapers designated by the executive director on a case-by-case basis. In all cases, the commission will publish notice in the Texas Register and issue a press release. Electronic means may be used to transmit notice to selected state and local officials. (b) The contents of a public notice of a proposed standard permit shall be in accordance with §122.506 of this title (relating to Public Notice for General Operating Permits) except where clearly not applicable. Each notice will include an invitation for written comments by the public regarding the proposed standard permit. The public notice will specify a comment period of at least 30 days and the public notice will be published not later than the 30th day before the commission issues a standard permit. (c) The commission will hold a public meeting to provide an additional opportunity for public comment. The commission will give notice of a public meeting under this subsection as part of the notice described in subsection (b) of this section not later than the 30th day before the date of the meeting. The public comment period shall automatically be extended to the close of any public meeting. (d) If the commission receives public comment related to the issuance of a standard permit, the commission will issue a written response to the comments at the same time the commission issues or denies the permit. The commission will make the response available to the public, and shall mail the response to each commenter. (e) The commission will publish notice of its final action on the proposed standard permit and the text of its response to comments in the Texas Register. (f) The commission will make a copy of any issued standard permit and response to comments available to the public for inspection at the commission's Office of Permitting, Remediation, and Registration in its Austin office, and also in the appropriate regional offices.</content><note type="source"><p>Source Note: The provisions of this §116.603 adopted to be effective January 11, 2000, 25 TexReg 150; amended to be effective September 4, 2000, 25 TexReg 8668; amended to be effective October 12, 2006, 31 TexReg 8380.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scF/s116.604"><num value="116.604">§116.604</num><heading>Duration and Renewal of Registrations to Use Standard Permits</heading><content>An owner or operator who chooses to use a standard permit shall register to use a standard permit in accordance with §116.611 of this title (relating to Registration to Use a Standard Permit), unless otherwise specified in a specific standard permit.(1) The registration to use a standard permit is valid for a term not to exceed ten years.(2) The holder of a standard permit shall be required to renew the registration to use a standard permit by the date the registration expires. Any registration renewal shall include the requirements, as applicable, of §116.611 of this title (relating to Registration to Use a Standard Permit) and shall provide information determined by the commission to be necessary to demonstrate compliance with the requirements and conditions of the standard permit and with applicable state and federal regulations.(3) The commission will provide written notice to registrants of the renewal deadline at least 180 days prior to the expiration of the registration.(4) The commission may choose to renew registrations to use specific standard permits automatically, and, in such cases, will provide written notice to registrants.</content><note type="source"><p>Source Note: The provisions of this §116.604 adopted to be effective January 11, 2000, 25 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scF/s116.605"><num value="116.605">§116.605</num><heading>Standard Permit Amendment and Revocation</heading><content>(a) A standard permit remains in effect until amended or revoked by the commission. (b) After notice and comment as provided by subsection (c) of this section and §116.603(b)-(f) of this title (relating to Public Participation in Issuance of Standard Permits), a standard permit may be amended or revoked by the commission. (c) The commission will publish notice of its intent to amend or revoke a standard permit in a daily or weekly newspaper of general circulation in the area affected by the activity that is the subject of the standard permit. If the standard permit has statewide applicability, then the requirement for newspaper notice shall be accomplished by publishing notice in the daily newspaper of largest general circulation within each of the following major metropolitan areas: Austin, Dallas, and Houston. The commission will also provide written notice to registrants and any persons requesting to be on a mailing list concerning a specific standard permit. In both cases, the commission will publish notice in the Texas Register. (d) The commission may, through amendment of a standard permit, add or delete requirements or limitations to the permit. (1) To remain authorized under the standard permit, a facility shall comply with an amendment to the standard permit on the later of either the deadline the commission provides in the amendment or the date the facility's registration to use the standard permit is required to be renewed. The commission may not require compliance with an amended standard permit within 24 months of its amendment unless it is necessary to protect public health. (2) Before the date the facility is required to comply with the amendment, the standard permit, as it read before the amendment, applies to the facility. (3) The commission will consider the following when determining whether to amend or revoke a standard permit: (A) whether a condition of air pollution exists; (B) the applicability of other state or federal standards that apply or will apply to the types of facilities covered by the standard permit; (C) requests from the regulated community or the public to amend or revoke a standard permit consistent with the requirements of the TCAA; and (D) whether the standard permit requires best available control technology. (e) The commission may require, upon issuance of an amended standard permit, or on a date otherwise provided, the owner or operator of a facility to submit a registration to use the amended standard permit in accordance with the requirements of §116.611 of this title (relating to Registration to Use a Standard Permit). (f) If the commission revokes a standard permit, it will provide written notice to affected registrants prior to the revocation of the standard permit. The notice will advise registrants that they must apply for a permit under this chapter or qualify for an authorization under Chapter 106 of this title (relating to Exemptions from Permitting). (g) The issuance, amendment, or revocation of a standard permit or the issuance, renewal, or revocation of a registration to use a standard permit is not subject to Texas Government Code, Chapter 2001.</content><note type="source"><p>Source Note: The provisions of this §116.605 adopted to be effective January 11, 2000, 25 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scF/s116.606"><num value="116.606">§116.606</num><heading>Delegation</heading><content>The commission may delegate to the executive director any authority in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §116.606 adopted to be effective January 11, 2000, 25 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scF/s116.610"><num value="116.610">§116.610</num><heading>Applicability</heading><content>(a) Under the Texas Clean Air Act, §382.051, a project that meets the requirements for a standard permit listed in this subchapter or issued by the commission is hereby entitled to the standard permit, provided the following conditions listed in this section are met. For the purposes of this subchapter, project means the construction or modification of a facility or a group of facilities submitted under the same registration.(1) Any project that results in a net increase in emissions of air contaminants from the project other than water, nitrogen, ethane, hydrogen, oxygen, or greenhouse gases (GHGs) as defined in §101.1 of this title (relating to Definitions), or those for which a national ambient air quality standard has been established must meet the emission limitations of §106.261 of this title (relating to Facilities (Emission Limitations)), unless otherwise specified by a particular standard permit.(2) Construction or operation of the project must be commenced prior to the effective date of a revision to this subchapter under which the project would no longer meet the requirements for a standard permit.(3) The proposed project must comply with the applicable provisions of the Federal Clean Air Act (FCAA), §111 (concerning New Source Performance Standards) as listed under 40 Code of Federal Regulations (CFR) Part 60, promulgated by the United States Environmental Protection Agency (EPA).(4) The proposed project must comply with the applicable provisions of FCAA, §112 (concerning Hazardous Air Pollutants) as listed under 40 CFR Part 61, promulgated by the EPA.(5) The proposed project must comply with the applicable maximum achievable control technology standards as listed under 40 CFR Part 63, promulgated by the EPA under FCAA, §112 or as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA, §112, 40 CFR Part 63)).(6) If subject to Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program) the proposed facility, group of facilities, or account must obtain allocations to operate.(b) Any project that constitutes a new major stationary source or major modification as defined in §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions) because of emissions of air contaminants other than greenhouse gases is subject to the requirements of §116.110 of this title (relating to Applicability) rather than this subchapter. Notwithstanding any provision in any specific standard permit to the contrary, any project that constitutes a new major stationary source or major modification which is subject to Subchapter B, Division 6 of this chapter (relating to Prevention of Significant Deterioration Review) due solely to emissions of greenhouse gases may use a standard permit under this chapter for air contaminants that are not greenhouse gases.(c) Persons may not circumvent by artificial limitations the requirements of §116.110 of this title.(d) Any project involving a proposed affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) shall comply with all applicable requirements under Subchapter E of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)). Affected sources subject to Subchapter E of this chapter may use a standard permit under this subchapter only if the terms and conditions of the specific standard permit meet the requirements of Subchapter E of this chapter.</content><note type="source"><p>Source Note: The provisions of this §116.610 adopted to be effective May 4, 1994, 19 TexReg 3055; amended to be effective September 1, 1995, 20 TexReg 6324; amended to be effective April 19, 1996, 21 TexReg 3192; amended to be effective May 22, 1997, 22 TexReg 4242; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective January 11, 2000, 25 TexReg 150; amended to be effective March 29, 2001, 26 TexReg 2398; amended to be effective February 1, 2006, 31 TexReg 515; amended to be effective April 17, 2014, 39 TexReg 2901.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scF/s116.611"><num value="116.611">§116.611</num><heading>Registration to Use a Standard Permit</heading><content>(a) If required, registration to use a standard permit shall be submitted using the electronic method designated by the executive director for the applicable standard permit. If a designated electronic method is not available, the registration shall be sent by certified mail, return receipt requested, or hand delivered to the executive director, the appropriate commission regional office, and any local air pollution program with jurisdiction, before a standard permit can be used. The registration must be submitted using the required form and must document compliance with the requirements of this section, including, but not limited to:(1) the basis of emission estimates;(2) quantification of all emission increases and decreases associated with the project being registered;(3) sufficient information as may be necessary to demonstrate that the project will comply with §116.610(b) of this title (relating to Applicability);(4) information that describes efforts to be taken to minimize any collateral emissions increases that will result from the project;(5) a description of the project and related process; and(6) a description of any equipment being installed.(b) Construction may begin any time after receipt of written notification from the executive director that there are no objections or 45 days after receipt by the executive director of the registration, whichever occurs first, except where a different time period is specified for a particular standard permit or the source obtains a prevention of significant deterioration permit for greenhouse gases as provided in §116.164(a) of this title (relating to Prevention of Significant Deterioration Applicability for Greenhouse Gases Sources).(c) In order to avoid applicability of Chapter 122 of this title (relating to Federal Operating Permits), a certified registration shall be submitted. The certified registration must state the maximum allowable emission rates and must include documentation of the basis of emission estimates and a written statement by the registrant certifying that the maximum emission rates listed on the registration reflect the reasonably anticipated maximums for operation of the facility. The certified registration shall be amended if the basis of the emission estimates changes or the maximum emission rates listed on the registration no longer reflect the reasonably anticipated maximums for operation of the facility. The certified registration shall be submitted to the executive director; to the appropriate commission regional office; and to all local air pollution control agencies having jurisdiction over the site. Certified registrations must also be maintained in accordance with the requirements of §116.115 of this title (relating to General and Special Conditions).(1) Certified registrations established prior to December 11, 2002, shall be submitted on or before February 3, 2003.(2) Certified registrations established on or after December 11, 2002, shall be submitted no later than the date of operation.(3) Certified registrations established for greenhouse gases (as defined in §101.1 of this title (relating to Definitions)) on or after the effective date of United States Environmental Protection Agency's (EPA) final action approving amendments to §122.122 of this title (relating to Potential to Emit) into the State Implementation Plan shall be submitted:(A) for existing sites that emit or have the potential to emit greenhouse gases, no later than 12 months after the effective date of EPA's final action approving amendments to §122.122 of this title as a revision to the Federal Operating Permits Program; or(B) for new sites that emit or have the potential to emit greenhouse gases, no later than the date of operation.</content><note type="source"><p>Source Note: The provisions of this §116.611 adopted to be effective May 4, 1994, 19 TexReg 3055; amended to be effective May 22, 1997, 22 TexReg 4242; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective January 11, 2000, 25 TexReg 150; amended to be effective December 11, 2002, 27 TexReg 11574; amended to be effective April 17, 2014, 39 TexReg 2901; amended to be effective November 22, 2018, 43 TexReg 7540.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scF/s116.614"><num value="116.614">§116.614</num><heading>Standard Permit Fees</heading><content>Any person who registers to use a standard permit or an amended standard permit, or to renew a registration to use a standard permit shall remit, at the time of registration, a flat fee of $900 for each standard permit being registered, unless otherwise specified in a particular standard permit. No fee is required if a registration is automatically renewed by the commission. All standard permit fees will be remitted in the form of a check, certified check, electronic funds transfer, or money order made payable to the Texas Commission on Environmental Quality (TCEQ) and delivered with the permit registration to the TCEQ, P.O. Box 13088, MC 214, Austin, Texas 78711-3087. No fees will be refunded.</content><note type="source"><p>Source Note: The provisions of this §116.614 adopted to be effective May 4, 1994, 19 TexReg 3055; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective January 11, 2000, 25 TexReg 150; amended to be effective October 20, 2002, 27 TexReg 9616.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scF/s116.615"><num value="116.615">§116.615</num><heading>General Conditions</heading><content>The following general conditions are applicable to holders of standard permits, but will not necessarily be specifically stated within the standard permit document.(1) Protection of public health and welfare. The emissions from the facility, including dockside vessel emissions, must comply with all applicable rules and regulations of the commission adopted under Texas Health and Safety Code, Chapter 382, and with the intent of the Texas Clean Air Act (TCAA), including protection of health and property of the public.(2) Standard permit representations. All representations with regard to construction plans, operating procedures, pollution control methods, and maximum emission rates in any registration for a standard permit become conditions upon which the facility or changes thereto, must be constructed and operated. It is unlawful for any person to vary from such representations if the change will affect that person's right to claim a standard permit under this section. Any change in condition such that a person is no longer eligible to claim a standard permit under this section requires proper authorization under §116.110 of this title (relating to Applicability). Any changes in representations are subject to the following requirements:(A) For the addition of a new facility, the owner or operator shall submit a new registration incorporating existing facilities with a fee, in accordance with §116.611 and §116.614 of this title, (relating to Registration to use a Standard Permit and Standard Permit Fees) prior to commencing construction. If the applicable standard permit requires public notice, construction of the new facility or facilities may not commence until the new registration has been issued by the executive director.(B) For any change in the method of control of emissions, a change in the character of the emissions, or an increase in the discharge of the various emissions, the owner or operator shall submit written notification to the executive director describing the change(s), along with the designated fee, no later than 30 days after the change.(C) For any other change to the representations, the owner or operator shall submit written notification to the executive director describing the change(s) no later than 30 days after the change.(D) Any facility registered under a standard permit which contains conditions or procedures for addressing changes to the registered facility which differ from subparagraphs (A) - (C) of this paragraph shall comply with the applicable requirements of the standard permit in place of subparagraphs (A) - (C) of this paragraph.(3) Standard permit in lieu of permit amendment. All changes authorized by standard permit to a facility previously permitted under §116.110 of this title shall be administratively incorporated into that facility's permit at such time as the permit is amended or renewed.(4) Construction progress. Start of construction, construction interruptions exceeding 45 days, and completion of construction shall be reported to the appropriate regional office not later than 15 working days after occurrence of the event, except where a different time period is specified for a particular standard permit.(5) Start-up notification.(A) The appropriate air program regional office of the commission and any other air pollution control agency having jurisdiction shall be notified prior to the commencement of operations of the facilities authorized by a standard permit in such a manner that a representative of the executive director may be present.(B) For phased construction, which may involve a series of units commencing operations at different times, the owner or operator of the facility shall provide separate notification for the commencement of operations for each unit.(C) Prior to beginning operations of the facilities authorized by the permit, the permit holder shall identify to the Office of Permitting, Remediation, and Registration, the source or sources of allowances to be utilized for compliance with Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program).(D) A particular standard permit may modify start-up notification requirements.(6) Sampling requirements. If sampling of stacks or process vents is required, the standard permit holder shall contact the commission's appropriate regional office and any other air pollution control agency having jurisdiction prior to sampling to obtain the proper data forms and procedures. All sampling and testing procedures must be approved by the executive director and coordinated with the regional representatives of the commission. The standard permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant.(7) Equivalency of methods. The standard permit holder shall demonstrate or otherwise justify the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the standard permit. Alternative methods must be applied for in writing and must be reviewed and approved by the executive director prior to their use in fulfilling any requirements of the standard permit.(8) Recordkeeping. A copy of the standard permit along with information and data sufficient to demonstrate applicability of and compliance with the standard permit shall be maintained in a file at the plant site and made available at the request of representatives of the executive director, the United States Environmental Protection Agency, or any air pollution control agency having jurisdiction. For facilities that normally operate unattended, this information shall be maintained at the nearest staffed location within Texas specified by the standard permit holder in the standard permit registration. This information must include, but is not limited to, production records and operating hours. Additional recordkeeping requirements may be specified in the conditions of the standard permit. Information and data sufficient to demonstrate applicability of and compliance with the standard permit must be retained for at least two years following the date that the information or data is obtained. The copy of the standard permit must be maintained as a permanent record.(9) Maintenance of emission control. The facilities covered by the standard permit may not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. Notification for emissions events and scheduled maintenance shall be made in accordance with §101.201 and §101.211 of this title (relating to Emissions Event Reporting and Recordkeeping Requirements; and Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements).(10) Compliance with rules. Registration of a standard permit by a standard permit applicant constitutes an acknowledgment and agreement that the holder will comply with all rules, regulations, and orders of the commission issued in conformity with the TCAA and the conditions precedent to the claiming of the standard permit. If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition shall govern. Acceptance includes consent to the entrance of commission employees and designated representatives of any air pollution control agency having jurisdiction into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the standard permit.(11) Distance limitations, setbacks, and buffer zones. Notwithstanding any requirement in any standard permit, if a standard permit for a facility requires a distance, setback, or buffer from other property or structures as a condition of the permit, the determination of whether the distance, setback, or buffer is satisfied shall be made on the basis of conditions existing at the earlier of:(A) the date new construction, expansion, or modification of a facility begins; or(B) the date any application or notice of intent is first filed with the commission to obtain approval for the construction or operation of the facility.</content><note type="source"><p>Source Note: The provisions of this §116.615 adopted to be effective September 1, 1995, 20 TexReg 6324; amended to be effective May 22, 1997, 22 TexReg 4242; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective March 29, 2001, 26 TexReg 2398; amended to be effective September 12, 2002, 27 TexReg 8546; amended to be effective March 15, 2007, 32 TexReg 1320; amended to be effective November 22, 2018, 43 TexReg 7540.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scF/s116.617"><num value="116.617">§116.617</num><heading>State Pollution Control Project Standard Permit</heading><content>(a) Scope and applicability.(1) This standard permit applies to pollution control projects undertaken voluntarily or as required by any governmental standard, that reduce or maintain currently authorized emission rates for facilities authorized by a permit, standard permit, or permit by rule.(2) The project may include:(A) the installation or replacement of emissions control equipment;(B) the implementation or change to control techniques; or(C) the substitution of compounds used in manufacturing processes.(3) This standard permit must not be used to authorize the installation of emission control equipment or the implementation of a control technique that:(A) constitutes the complete replacement of an existing production facility or reconstruction of a production facility as defined in 40 Code of Federal Regulations §60.15(b)(1) and (c); or(B) the executive director determines there are health effects concerns or the potential to exceed a national ambient air quality standard criteria pollutant or contaminant that results from an increase in emissions of any air contaminant until those concerns are addressed by the registrant to the satisfaction of the executive director; or(C) returns a facility or group of facilities to compliance with an existing authorization or permit unless authorized by the executive director.(4) Prior to March 3, 2011, new or modified pollution control projects must meet the conditions of this standard permit. All previous standard permit registrations under this section that were authorized prior to the effective date of this rule must include the increases and decreases in emissions resulting from those projects in any future netting calculation and all other conditions must be met upon the ten-year anniversary and renewal of the original registration, or until administratively incorporated into the facilities' permit, if applicable.(5) Notwithstanding the requirements of §116.604 of this title (relating to Duration and Renewal of Registrations to Use Standard Permits), on or after March 3, 2011, no new or modified registrations will be accepted and no existing registrations will be renewed.(b) General requirements.(1) Any claim under this standard permit must comply with all applicable conditions of:(A) §116.604(1) and (2) of this title (relating to Duration and Renewal of Registrations to Use Standard Permits);(B) §116.605(d)(1) and (2) of this title (relating to Standard Permit Amendment and Revocation);(C) §116.610 of this title (relating to Applicability);(D) §116.611 of this title (relating to Registration to Use a Standard Permit);(E) §116.614 of this title (relating to Standard Permit Fees); and(F) §116.615 of this title (relating to General Conditions).(2) Construction or implementation of the pollution control project must begin within 18 months of receiving written acceptance of the registration from the executive director, with one 18-month extension available, and must comply with §116.115(b)(2) and §116.120 of this title (relating to General and Special Conditions and Voiding of Permits). Any changes to allowable emission rates authorized by this section become effective when the project is complete and operation or implementation begins.(3) The emissions limitations of §116.610(a)(1) of this title do not apply to this standard permit.(4) Predictable maintenance, startup, and shutdown emissions directly associated with the pollution control projects must be included in the representations of the registration application.(5) Any increases in actual or allowable emission rates or any increase in production capacity authorized by this section (including increases associated with recovering lost production capacity) must occur solely as a result of the project as represented in the registration application. Any increases of production associated with a pollution control project must not be utilized until an additional authorization is obtained. This paragraph is not intended to limit the owner or operator's ability to recover lost capacity caused by a derate, which may be recovered and used without any additional authorization.(c) Replacement projects.(1) The replacement of emissions control equipment or control technique under this standard permit is not limited to the method of control currently in place, provided that the control or technique is at least as effective as the current authorized method and all other requirements of this standard permit are met.(2) The maintenance, startup, and shutdown emissions may be increased above currently authorized levels if the increase is necessary to implement the replacement project and maintenance, startup, and shutdown emissions were authorized for the existing control equipment or technique.(3) Equipment installed under this section is subject to all applicable testing and recordkeeping requirements of the original control authorization. Alternate, equivalent monitoring, or records may be proposed by the applicant for review and approval of the executive director.(d) Registration requirements.(1) A registration must be submitted in accordance with the following.(A) If there are no increases in authorized emissions of any air contaminant resulting from a replacement pollution control project, a registration must be submitted no later than 30 days after construction or implementation begins and the registration must be accompanied by a $900 fee.(B) If a new control device or technique is authorized or if there are increases in authorized emissions of any air contaminant resulting from the pollution control project, a registration must be submitted no later than 30 days prior to construction or implementation. The registration must be accompanied by a $900 fee. Construction or implementation may begin only after:(i) no written response has been received from the executive director within 30 calendar days of receipt by the Texas Commission on Environmental Quality (TCEQ); or(ii) written acceptance of the pollution control project has been issued by the executive director.(C) If there are any changes in representations to a previously authorized pollution control project standard permit for which there are no increases in authorized emissions of any air contaminant, a notification or letter must be submitted no later than 30 days after construction or implementation of the change begins. No fee applies and no response will be sent from the executive director.(D) If there are any changes in representations to a previously authorized pollution control project standard permit that also increase authorized emissions of any air contaminant resulting from the pollution control project, a registration alteration must be submitted no later than 30 days prior to the start of construction or implementation of the change. The registration must be accompanied by a $450 fee, unless received within 180 days of the original registration approval. Construction or implementation may begin only after:(i) no written response has been received from the executive director within 30 calendar days of receipt by the TCEQ; or(ii) written acceptance of the pollution control project has been issued by the executive director.(2) The registration must include the following:(A) a description of process units affected by the project;(B) a description of the project;(C) identification of existing permits or registrations affected by the project;(D) quantification and basis of increases and/or decreases associated with the project, including identification of affected existing or proposed emission points, all air contaminants, and hourly and annual emissions rates;(E) a description of proposed monitoring and recordkeeping that will demonstrate that the project decreases or maintains emission rates as represented; and(F) a description of how the standard permit will be administratively incorporated into the existing permit(s).(e) Operational requirements. Upon installation of the pollution control project, the owner or operator shall comply with the requirements of paragraphs (1) and (2) of this subsection.(1) General duty. The owner or operator must operate the pollution control project in a manner consistent with good industry and engineering practices and in such a way as to minimize emissions of collateral pollutants, within the physical configuration and operational standards usually associated with the emissions control device, strategy, or technique.(2) Recordkeeping. The owner or operator must maintain copies on site of monitoring or other emission records to prove that the pollution control project is operated consistent with the requirements in paragraph (1) of this subsection, and the conditions of this standard permit.(f) Incorporation of the standard permit into the facility authorization.(1) Any new facilities or changes in method of control or technique authorized by this standard permit instead of a permit amendment under §116.110 of this title (relating to Applicability) at a previously permitted or standard permitted facility must be incorporated into that facility's permit when the permit is amended or renewed.(2) All increases in previously authorized emissions, new facilities, or changes in method of control or technique authorized by this standard permit for facilities previously authorized by a permit by rule must comply with §106.4 of this title (relating to Requirements for Permitting by Rule), except §106.4(a)(1) of this title, and §106.8 of this title (relating to Recordkeeping).</content><note type="source"><p>Source Note: The provisions of this §116.617 adopted to be effective February 1, 2006, 31 TexReg 515; amended to be effective March 3, 2011, 36 TexReg 1305.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scF/s116.620"><num value="116.620">§116.620</num><heading>Installation and/or Modification of Oil and Gas Facilities</heading><content>(a) Emission specifications. (1) Venting or flaring more than 0.3 long tons per day of total sulfur shall not be allowed. (2) No facility shall be allowed to emit total uncontrolled emissions of sulfur compounds, except sulfur dioxide (SO 2 ), from all vents (excluding process fugitives emissions) equal to or greater than four pounds per hour unless the vapors are collected and routed to a flare. (3) Any vent, excluding any safety relief valves that discharge to the atmosphere only as a result of fire or failure of utilities, emitting sulfur compounds other than SO2 shall be at least 20 feet above ground level. (4) New or modified internal combustion reciprocating engines or gas turbines permitted under this standard permit shall satisfy all of the requirements of §106.512 of this title (relating to Stationary Engines and Turbines), except that registration using the Form PI-7 or PI-8 shall not be required. Emissions from engines or turbines shall be limited to the amounts found in §106.4(a)(1) of this title (relating to Requirements for Permitting by Rule). (5) Total Volatile Organic Compound (VOC) emissions from a natural gas glycol dehydration unit shall not exceed ten tons per year (tpy) unless the vapors are collected and controlled in accordance with subsection (b)(2) of this section. (6) Any combustion unit (excluding flares, internal combustion engines, or natural gas turbines), with a design maximum heat input greater than 40 million British thermal units (Btu) per hour (using lower heating values) shall not emit more than 0.06 pounds of nitrogen oxides per million Btu. (7) No facility which is less than 500 feet from the nearest off-plant receptor shall be allowed to emit uncontrolled VOC process fugitive emissions equal to or greater than ten tpy, but less than 25 tpy, unless the equipment is inspected and repaired according to subsection (c)(1) of this section. (8) No facility which is 500 feet or more from the nearest off-plant receptor shall be allowed to emit uncontrolled VOC process fugitive emissions equal to or greater than 25 tpy unless the equipment is inspected and repaired according to subsection (c)(1) of this section. (9) No facility which is less than 500 feet from the nearest off-plant receptor shall be allowed to emit uncontrolled VOC process fugitive emissions equal to or greater than 25 tpy unless the equipment is inspected and repaired according to subsection (c)(2) of this section. (10) No facility shall be allowed to emit uncontrolled VOC process fugitive emissions equal to or greater than 40 tpy unless the equipment is inspected and repaired according to subsection (c)(2) of this section. (11) No facility which is located less than 1/4 mile from the nearest off-plant receptor shall be allowed to emit hydrogen sulfide H2S or SO2 process fugitive emissions unless the equipment is inspected and repaired according to subsection (c)(3) of this section. No facility which is located at least 1/4 mile from the nearest off-plant receptor shall be allowed to emit H 2S or SO2 process fugitive emissions unless the equipment is inspected and repaired according to subsection (c)(3) of this section or unless the H2S or SO 2 emissions are monitored with ambient property line monitors according to subsection (e)(1) of this section. Components in sweet crude oil or gas service as defined by Chapter 101 of this title (relating to General Air Quality Rules) are exempt from these limitations. (12) Flares shall be designed and operated in accordance with 40 Code of Federal Regulations (CFR), Part 60.18 or equivalent standard approved by the commission, including specifications of minimum heating values of waste gas, maximum tip velocity, and pilot flame monitoring. If necessary to ensure adequate combustion, sufficient gas shall be added to make the gases combustible. An infrared monitor is considered equivalent to a thermocouple for flame monitoring purposes. An automatic ignition system may be used in lieu of a continuous pilot. (13) Appropriate documentation shall be submitted to demonstrate that compliance with the Prevention of Significant Deterioration (PSD) and nonattainment new source review provisions of the FCAA, Parts C and D, and regulations promulgated thereunder, and with Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) are being met. The oil and gas facility shall be required to meet the requirements of Subchapter B of this chapter (relating to New Source Review Permits) instead of this subchapter if a PSD or nonattainment permit or a review under Subchapter C of this chapter is required. (14) Documentation shall be submitted to demonstrate compliance with applicable New Source Performance Standards (NSPS, 40 CFR Part 60). (15) Documentation shall be submitted to demonstrate compliance with applicable National Emission Standards for Hazardous Air Pollution (NESHAP, 40 CFR Part 61). (16) Documentation shall be submitted to demonstrate compliance with applicable maximum achievable control technology standards as listed under 40 CFR Part 63, promulgated by the EPA under FCAA, §112 or as listed in Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA §112, 40 CFR Part 63)). (17) New and increased emissions shall not cause or contribute to a violation of any National Ambient Air Quality Standard or regulation property line standards as specified in Chapters 111, 112, and 113 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter; Control of Air Pollution from Sulfur Compounds; and Control of Air Pollution from Toxic Materials). Engineering judgment and/or computerized air dispersion modeling may be used in this demonstration. To show compliance with §116.610(a)(1) of this title (relating to Applicability) for H2S emissions from process vents, ten milligrams per cubic meter shall be used as the "L" value instead of the value represented by §116.610(a)(1) of this title. (18) Fuel for all combustion units and flare pilots shall be sweet natural gas or liquid petroleum gas, fuel gas containing no more than ten grains of total sulfur per 100 dry standard cubic feet (dscf), or field gas. If field gas contains more than 1.5 grains of H 2S or 30 grains total sulfur compounds per 100 dscf, the operator shall maintain records, including at least quarterly measurements of fuel H2S and total sulfur content, which demonstrate that the annual SO2 emissions from the facility do not exceed the limitations listed in the standard permit registration. If a flare is the only combustion unit on a property, the operator shall not be required to maintain such records on flare pilot gas. (b) Control requirements. (1) Floating roofs or equivalent controls shall be required on all new or modified storage tanks, other than pressurized tanks which meet §106.476 of this title (relating to Pressurized Tanks or Tanks Vented to Control), unless the tank is less than 25,000 gallons in nominal size or the vapor pressure of the compound to be stored in the tank is less than 0.5 pounds per square inch absolute (psia) at maximum short-term storage temperature. (A) For internal floating roofs, mechanical shoe primary seal or liquid-mounted primary seal or a vapor-mounted primary with rim-mounted secondary seal shall be used. (B) Mechanical shoe or liquid-mounted primary seals shall include a rim-mounted secondary seal on all external floating roofs tanks. Vapor-mounted primary seals will not be accepted. (C) All floating roof tanks shall comply with the requirements under §115.112(a)(2)(A) - (F) of this title (relating to Control Requirements). (D) In lieu of a floating roof, tank emissions may be routed to: (i) a destruction device such that a minimum VOC destruction efficiency of 98% is achieved; or (ii) a vapor recovery system such that a minimum VOC recovery efficiency of 95% is achieved. (E) Independent of the permits by rule listed in this paragraph, if the emissions from any fixed roof tank exceed ten tpy of VOC or ten tpy of sulfur compounds, the tank emissions shall be routed to a destruction device, vapor recovery unit, or equivalent method of control that meets the requirements listed in subparagraph (D) of this paragraph. (2) The VOC emissions from a natural gas glycol dehydration unit shall be controlled as follows. (A) If total uncontrolled VOC emissions are equal to or greater than ten tpy, but less than 50 tpy, a minimum of 80% by weight minimum control efficiency shall be achieved by either operating a condenser and a separator (or flash tank), vapor recovery unit, destruction device, or equivalent control device. (B) If total uncontrolled VOC emissions are equal to or greater than 50 tpy, a minimum of: (i) 98% by weight minimum destruction efficiency shall be achieved by a destruction device or equivalent; or (ii) 95% by weight minimum control efficiency shall be achieved by a vapor recovery system or equivalent. (c) Inspection requirements. (1) Owners or operators who are subject to subsection (a)(7) or (8) of this section shall comply with the following requirements. (A) No component shall be allowed to have a VOC leak for more than 15 days after the leak is detected to exceed a VOC concentration greater than 10,000 parts per million by volume (ppmv) above background as methane, propane, or hexane, or the dripping or exuding of process fluid based on sight, smell, or sound for all components. The VOC fugitive emission components which contact process fluids where the VOCs have an aggregate partial pressure or vapor pressure of less than 0.5 psia at 100 degrees Fahrenheit are exempt from this requirement. If VOC fugitive emission components are in service where the operating pressure is at least 0.725 pounds per square inch (psi) (five kilopascals (Kpa)) below ambient pressure, then these components are also exempt from this requirement as long as the equipment is identified in a list that is made available upon request by the agency representatives, the EPA, or any other air pollution agency having jurisdiction. All piping and valves two inches nominal size and smaller, unless subject to federal NSPS requiring a fugitive VOC emissions leak detection and repair program or Chapter 115 of this title (relating to Control of Air Pollution from Volatile Organic Compounds), are also exempt from this requirement. (B) All technically feasible repairs shall be made to repair a VOC leaking process fugitive component within 15 days after the leak is detected. If the repair of a component would require a unit shutdown, the repair may be delayed until the next scheduled shutdown. All leaking components which cannot be repaired until a scheduled shutdown shall be identified for such repair by tagging. The executive director, at his discretion, may require early unit shutdown or other appropriate action based on the number and severity of tagged leaks awaiting shutdown. (C) New and reworked underground process pipelines containing VOCs shall contain no buried valves such that process fugitive emission inspection and repair is rendered impractical. (D) To the extent that good engineering practice will permit, new and reworked valves and piping connections in VOC service shall be so located to be reasonably accessible for leak-checking during plant operation. Valves elevated more than two meters above a support surface will be considered non- accessible and shall be identified in a list to be made available upon request. (E) New and reworked piping connections in VOC service shall be welded or flanged. Screwed connections are permissible only on piping smaller than two-inch diameter. No later than the next scheduled quarterly monitoring after initial installation or replacement, all new or reworked connections shall be gas-tested or hydraulically-tested at no less than normal operating pressure and adjustments made as necessary to obtain leak-free performance. Flanges in VOC service shall be inspected by visual, audible, and/or olfactory means at least weekly by operating personnel walk- through. (F) Each open-ended valve or line in VOC service, other than a valve or line used for safety relief, shall be equipped with a cap, blind flange, plug, or a second valve. Except during sampling, the second valve shall be closed. (G) Accessible valves in VOC service shall be monitored by leak-checking for fugitive emissions at least quarterly using an approved gas analyzer. For valves equipped with rupture discs, a pressure gauge shall be installed between the relief valve and rupture disc to monitor disc integrity. All leaking discs shall be replaced at the earliest opportunity, but no later than the next process shutdown. Sealless/leakless valves (including, but not limited to, welded bonnet bellows and diaphragm valves) and relief valves equipped with a rupture disc or venting to a control device are exempt from monitoring. (H) Dual pump seals with barrier fluid at higher pressure than process pressure, seals degassing to vent control systems kept in good working order, or seals equipped with an automatic seal failure detection and alarm system, submerged pumps, or sealless pumps (including, but not limited to, diaphragm, canned, or magnetic driven pumps) are exempt from monitoring. (I) All other pump and compressor seals emitting VOC shall be monitored with an approved gas analyzer at least quarterly. (J) After completion of the required quarterly inspections for a period of at least two years, the operator of the oil and gas facility may request in writing to the Office of Permitting, Remediation, and Registration that the monitoring schedule be revised based on the percent of valves leaking. The percent of valves leaking shall be determined by dividing the sum of valves leaking during current monitoring and valves for which repair has been delayed by the total number of valves subject to the requirements. This request shall include all data that has been developed to justify the following modifications in the monitoring schedule. (i) After two consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0%, an owner or operator may begin to skip one of the quarterly leak detection periods for the valves in gas/vapor and light liquid service. (ii) After five consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0%, an owner or operator may begin to skip three of the quarterly leak detection periods for the valves in gas/vapor and light liquid service. (2) Owners or operators who are subject to subsection (a)(9) or (10) of this section shall comply with the following requirements. (A) No component shall be allowed to have a VOC leak for more than 15 days after the leak is found which exceeds a VOC concentration greater than 500 ppmv for all components except pumps and compressors and greater than 2,000 ppmv for pumps and compressors above background as methane, propane, or hexane, or the dripping or exuding of process fluid based on sight, smell, or sound. The VOC fugitive emission components which contact process fluids where the VOCs have an aggregate partial pressure or vapor pressure of less than 0.044 psia at 100 degrees Fahrenheit are exempt from this requirement. If VOC fugitive emission components are in service where the operating pressure is at least 0.725 psi (five Kpa) below ambient pressure, these components are also exempt from this requirement as long as the equipment is identified in a list that is made available upon request by agency representatives, the EPA, or any air pollution control agency having jurisdiction. All piping and valves two inches nominal size and smaller are also exempt from this requirement. (B) All technically feasible repairs shall be made to repair a VOC leaking process fugitive component within 15 days after the leak is detected. If the repair of a component would require a unit shutdown, the repair may be delayed until the next scheduled shutdown. All leaking components which cannot be repaired until a scheduled shutdown shall be identified for such repair by tagging. The executive director, at his or her discretion, may require early unit shutdown or other appropriate action based on the number and severity of tagged leaks awaiting shutdown. (C) New and reworked underground process pipelines containing VOCs shall contain no buried valves such that process fugitive emission inspection and repair is rendered impractical. (D) To the extent that good engineering practice will permit, new and reworked valves and piping connections in VOC service shall be so located to be reasonably accessible for leak-checking during plant operation. Valves elevated more than two meters above a support surface will be considered non- accessible and shall be identified in a list to be made available upon request. (E) New and reworked piping connections in VOC service shall be welded or flanged. Screwed connections are permissible only on piping smaller than two-inch diameter. No later than the next scheduled quarterly monitoring after initial installation or replacement, all new or reworked connections shall be gas-tested or hydraulically-tested at no less than normal operating pressure and adjustments made as necessary to obtain leak-free performance. Flanges in VOC service shall be inspected by visual, audible, and/or olfactory means at least weekly by operating personnel walk- through. (F) Each open-ended valve or line in VOC service, other than a valve or line used for safety relief, shall be equipped with a cap, blind flange, plug, or a second valve. Except during sampling, the second valve shall be closed. (G) Accessible valves in VOC service shall be monitored by leak-checking for fugitive emissions at least quarterly using an approved gas analyzer. For valves equipped with rupture discs, a pressure gauge shall be installed between the relief valve and rupture disc to monitor disc integrity. All leaking discs shall be replaced at the earliest opportunity, but no later than the next process shutdown. Sealless/leakless valves (including, but not limited to, welded bonnet bellows and diaphragm valves) and relief valves equipped with a rupture disc or venting to a control device are exempt from monitoring. (H) Dual pump seals with barrier fluid at higher pressure than process pressure, seals degassing to vent control systems kept in good working order or seals equipped with an automatic seal failure detection and alarm system, submerged pumps, or sealless pumps (including, but not limited to, diaphragm, canned, or magnetic driven pumps) are exempt from monitoring. (I) All other pump and compressor seals emitting VOC shall be monitored with an approved gas analyzer at least quarterly. (J) After completion of the required quarterly inspections for a period of at least two years, the operator of the oil and gas facility may request in writing to the Office of Permitting, Remediation, and Registration that the monitoring schedule be revised based on the percent of valves leaking. The percent of valves leaking shall be determined by dividing the sum of valves leaking during current monitoring and valves for which repair has been delayed by the total number of valves subject to the requirements. This request shall include all data that has been developed to justify the following modifications in the monitoring schedule. (i) After two consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0%, an owner or operator may begin to skip one of the quarterly leak detection periods for the valves in gas/vapor and light liquid service. (ii) After five consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0%, an owner or operator may begin to skip three of the quarterly leak detection periods for the valves in gas/vapor and light liquid service. (K) A directed maintenance program shall be used and consist of the repair and maintenance of VOC fugitive emission components assisted simultaneously by the use of an approved gas analyzer such that a minimum concentration of leaking VOC is obtained for each component being maintained. Replaced components shall be remonitored within 30 days of being placed back into VOC service. (3) For owners and operators who are subject to the applicable parts of subsection (a)(11) of this section, auditory and visual checks for SO2 and H2S leaks within the operating area shall be made every day. Immediately, but no later than eight hours upon detection of a leak, operating personnel shall take the following actions: (A) isolate the leak; and (B) commence repair or replacement of the leaking component; or (C) use a leak collection/containment system to prevent the leak until repair or replacement can be made if immediate repair is not possible. (d) Approved test methods. (1) An approved gas analyzer used for the VOC fugitive inspection and repair requirement in subsection (c) of this section, shall conform to requirements listed in 40 CFR §60.485(a) and (b). (2) Tutweiler analysis or equivalent shall be used to determine the H2S content as required under subsections (a) and (e) of this section. (3) Proper operation of any condenser used as a VOC emissions control device to comply with subsection (a)(5) of this section shall be tested to demonstrate compliance with the minimum control efficiency. Sampling shall occur within 60 days after start-up of new or modified facilities. The permittee shall contact the Engineering Services Section, Office of Compliance and Enforcement 45 days prior to sampling for approval of sampling protocol. The appropriate regional office in the region where the source is located shall also be contacted 45 days prior to sampling to provide them the opportunity to view the sampling. Neither the regional office nor the Engineering Services Section, Office of Compliance and Enforcement personnel are required to view the testing. Sampling reports which comply with the provisions of the "TNRCC Sampling Procedures Manual," Chapter 14 ("Contents of Sampling Reports," dated January 1983 and revised July 1985), shall be distributed to the appropriate regional office, any local programs, and the Engineering Services Section, Office of Compliance and Enforcement. (e) Monitoring and recordkeeping requirements. (1) If the operator elects to install and maintain ambient H2S property line monitors to comply with subsection (a)(11) of this section, the monitors shall be approved by the Engineering Services Section, Office of Compliance and Enforcement office in Austin, and shall be capable of detecting and alarming at H2S concentrations of ten ppmv. Operations personnel shall perform an initial on-site inspection of the facility within 24 hours of initial alarm and take corrective actions as listed in subsection (c)(3)(A) - (C) of this section within eight hours of detection of a leak. (2) The results of the VOC leak detection and repair requirements shall be made available to the executive director or any air pollution control agency having jurisdiction upon request. Records, for all components, shall include: (A) appropriate dates; (B) test methods; (C) instrument readings; (D) repair results; and (E) corrective actions. Records of flange inspections are not required unless a leak is detected. (3) Records for repairs and replacements made due to inspections of H2S and SO2 components shall be maintained. (4) Records shall be kept for each production, processing, and pipeline tank battery or for each storage tank if not located at a tank battery, on a monthly basis, as follows: (A) tank battery identification or storage tank identification, if not located at a tank battery; (B) compound stored; (C) monthly throughput in barrels/month; and (D) cumulative annual throughput, barrels/year. (5) A plan shall be submitted to show how ongoing compliance will be demonstrated for the efficiency requirements listed in subsection (b)(1)(D) of this section. The demonstration may include, but is not limited to, monitoring flowrates, temperatures, or other operating parameters. (6) Records shall be kept on at least a monthly basis of all production facility flow rates (in standard cubic feet per day) and total sulfur content of process vents or flares or gas processing streams. Total sulfur shall be calculated in long tons per day. (7) Records shall be kept of all ambient property line monitor alarms and shall include the date, time, duration, and cause of alarm, date and time of initial on-site inspection, and date and time of corrective actions taken. (8) All required records shall be made available to representatives of the agency, the EPA, or local air pollution control agencies upon request and be kept for at least two years. All required records shall be kept at the plant site, unless the plant site is unmanned during business hours. For plant sites ordinarily unmanned during business hours, the records shall be maintained at the nearest office in the state having day-to-day operations control of the plant site.</content><note type="source"><p>Source Note: The provisions of this §116.620 adopted to be effective April 19, 1996, 21 TexReg 3192; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective September 4, 2000, 25 TexReg 8668.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c116/scG"><num value="G">SUBCHAPTER G</num><heading>FLEXIBLE PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.710"><num value="116.710">§116.710</num><heading>Applicability</heading><content>(a) Flexible permit. A person may obtain a flexible permit which allows for physical or operational changes as provided by this subchapter as an alternative to obtaining a new source review permit under §116.110 of this title (relating to Applicability), or in lieu of amending an existing permit under §116.116 of this title (relating to Changes to Facilities). A person may obtain a flexible permit under §116.711 of this title (relating to Flexible Permit Application) for a facility, group of facilities, or account before any actual work is begun, except as provided in §116.118 of this title (relating to Construction While Permit Amendment Application Pending), provided however:(1) only one flexible permit may be issued for an account;(2) modifications to existing facilities included in a flexible permit may be authorized by the amendment of an existing flexible permit;(3) a new facility may be authorized by the amendment of an existing flexible permit; and(4) a flexible permit may not cover facilities at more than one account.(b) Change in ownership. The new owner of a facility, group of facilities, or account shall comply with §116.110(e) of this title, provided however, that all facilities authorized by a flexible permit must change ownership at the same time and to the same person, or both the new owner and existing permit holder must obtain a permit alteration allocating the emission caps or individual emission limitation prior to the transfer of the permit by the commission. After the sale of a facility, or facilities, but prior to the transfer of a permit requiring a permit alteration, the original permit holder remains responsible for ensuring compliance with the existing flexible permit and all rules and regulations of the commission.(c) Submittal under seal of Texas licensed professional engineer. All applications for a flexible permit or flexible permit amendment shall comply with §116.110(f) of this title.(d) Responsibility for flexible permit application. The owner of the facility, group of facilities, or account or the operator of the facility, group of facilities, or account who is authorized to act for the owner is responsible for complying with this section, except as provided by subsection (b) of this section.</content><note type="source"><p>Source Note: The provisions of this §116.710 adopted to be effective December 8, 1994, 19 TexReg 9360; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective September 4, 2000, 25 TexReg 8668; amended to be effective January 6, 2011, 35 TexReg 11909; amended to be effective July 31, 2014, 39 TexReg 5777; amended to be effective August 6, 2020, 45 TexReg 5351.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.711"><num value="116.711">§116.711</num><heading>Flexible Permit Application</heading><content>In order to be granted a flexible permit or flexible permit amendment, the owner or operator of the proposed facility shall submit a permit application which must include:(1) a completed Form PI-1 General Application signed by an authorized representative of the applicant. All additional support information specified on the form must be provided before the application is complete;(2) information which demonstrates that emissions from the facility, including any associated dockside vessel emissions, meet all of the following:(A) Protection of public health and welfare.(i) The emissions from the proposed facility, group of facilities, or account as determined under §116.716 of this title (relating to Emission Caps and Individual Emission Limitations), will comply with all applicable rules of the commission and with the intent of the Texas Clean Air Act, including protection of the health and physical property of the people.(ii) In considering the issuance of a flexible permit for construction or modification of any facility, group of facilities, or account within 3,000 feet or less of an elementary, junior high/middle, or senior high school, the commission shall consider any possible adverse short-term or long-term side effects that an air contaminant or nuisance odor from the facility, group of facilities, or account may have on the individuals attending these school facilities.(B) Measurement of emissions. The proposed facility, group of facilities, or account will have provisions for measuring the emission of air contaminants as determined by the executive director. This may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Commission on Environmental Quality Sampling Procedures Manual."(C) Best available control technology (BACT).(i) All facilities authorized by the flexible permit shall utilize BACT consistent with the following:(I) All new facilities must utilize BACT.(II) Existing facilities must utilize BACT with consideration given to the technical practicability and economic reasonableness of reducing or eliminating the emissions. Control technology that is more stringent than BACT may be used on certain facilities to provide the emission reductions necessary to comply with this requirement on a group of existing facilities, provided however, that the existing level of control may not be lessened for any facility from its current authorization.(ii) For pollutants from new or modified facilities that constitute a new major stationary source or major modification as defined by §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions), control technology shall be demonstrated as required by §§116.150, 116.151, or 116.160 of this title (relating to New Major Source or Major Modification in Ozone Nonattainment Areas; New Major Source or Major Modification in Nonattainment Area Other Than Ozone; and Prevention of Significant Deterioration Requirements, respectively), as applicable, for each new or modified facility.(iii) For new facilities and proposed affected sources (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to Subchapter E of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)), the use of BACT shall be demonstrated for the individual facility or affected source.(D) New Source Performance Standards (NSPS). The emissions from each affected facility as defined in 40 Code of Federal Regulations (CFR), Part 60 will meet at least the requirements of any applicable NSPS as listed under Title 40 CFR Part 60, promulgated by the United States Environmental Protection Agency under authority granted under the Federal Clean Air Act, §111, as amended.(E) National Emission Standards for Hazardous Air Pollutants (NESHAPS). The emissions from each facility subject to 40 CFR Part 61 will meet at least the requirements of any applicable NESHAPS, as listed under 40 CFR Part 61, promulgated by EPA under authority granted under the FCAA, §112, as amended.(F) NESHAPS for source categories. The emissions from each affected facility shall meet at least the requirements of any applicable maximum achievable control technology (MACT) standard as listed under 40 CFR Part 63, promulgated by the EPA under FCAA, §112 or as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA, §112, 40 CFR Part 63)).(G) Performance demonstration. The proposed facility, group of facilities, or account will achieve the performance specified in the flexible permit application. The applicant may be required to submit additional engineering data after a flexible permit has been issued in order to demonstrate further that the proposed facility, group of facilities, or account will achieve the performance specified in the flexible permit. In addition, initial compliance testing with ongoing compliance determined through engineering calculations based on measured process variables, parametric or predictive monitoring, stack monitoring, or stack testing shall be required as specified in each flexible permit.(H) Nonattainment review. If the proposed facility, group of facilities, or account is located in a nonattainment area, each facility shall comply with all applicable requirements concerning nonattainment review in this chapter.(I) Prevention of Significant Deterioration (PSD) review. If the proposed facility, group of facilities, or account is located in an attainment area, each facility shall comply with all applicable requirements in this chapter concerning PSD review.(J) Air dispersion modeling or ambient monitoring. Computerized air dispersion modeling or ambient monitoring may be required by the commission's Air Permits Division to determine the air quality impacts from the facility, group of facilities, or account. In conducting a review of a permit application for a shipbuilding or ship repair operation, the commission will not require and may not consider air dispersion modeling results predicting ambient concentrations of non-criteria air contaminants over coastal waters of the state. The commission shall determine compliance with non-criteria ambient air contaminant standards and guidelines at land-based off-property locations.(K) Federal standards of review for constructed or reconstructed major sources of hazardous air pollutants. If the proposed source is an affected source (as defined in §116.15(1) of this title), it shall comply with all applicable requirements under Subchapter E of this chapter.(L) Mass cap and trade allocations. If subject to Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program) the proposed facility, group of facilities, or account must obtain allocations to operate.(M) Application content. In addition to other requirements of this chapter, the applicant shall:(i) identify each air contaminant for which an emission cap is desired;(ii) identify each facility to be included in the flexible permit;(iii) identify each source of emissions to be included in the flexible permit and for each source of emissions identify the Emission Point Number (EPN) and the air contaminants emitted;(iv) for each emission cap, identify all associated EPNs and facilities (including description, common name, and facility identification number) and provide emission rate calculations based on the expected maximum capacity and the proposed control technology;(v) for each individual emission limitation, identify the EPN and provide emission rate calculations based on the expected maximum capacity and the proposed control technology; and(vi) if the flexible permit application includes facilities currently authorized by a permit issued under Subchapter B of this chapter (relating to New Source Review Permits), the applicant shall identify any terms, conditions, and representations in the Subchapter B permit or permits which will be superseded by or incorporated into the flexible permit. The applicant shall include an analysis of how the conditions and control requirements of Subchapter B permits will be carried forward in the proposed flexible permit.(N) Proposed control technology and compliance demonstration. The applicant shall specify the control technology proposed for each facility and demonstrate compliance with all emission caps at expected maximum production capacity.</content><note type="source"><p>Source Note: The provisions of this §116.711 adopted to be effective December 8, 1994, 19 TexReg 9360; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective March 29, 2001, 26 TexReg 2398; amended to be effective September 12, 2002, 27 TexReg 8546; amended to be effective January 6, 2011, 35 TexReg 11909; amended to be effective July 31, 2014, 39 TexReg 5777.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.714"><num value="116.714">§116.714</num><heading>Application Review Schedule</heading><content>The flexible permit application will be reviewed by the commission in accordance with §116.114 of this title (relating to Application Review Schedule).</content><note type="source"><p>Source Note: The provisions of this §116.714 adopted to be effective December 8, 1994, 19 TexReg 9360; amended to be effective July 8, 1998, 23 TexReg 6973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.715"><num value="116.715">§116.715</num><heading>General and Special Conditions</heading><content>(a) Flexible permits may contain general and special conditions. The holders of flexible permits shall comply with any and all such conditions.(b) A pollutant specific emission cap or individual emission limitations shall be established for each air contaminant for all facilities authorized by the flexible permit. A flexible permit may contain more than one emission cap for a specific air contaminant. The holder of a flexible permit shall comply with all flexible permit emission cap(s) and individual emission limitations. An exceedance of the flexible permit emission cap(s) or individual emission limitations is a violation of the permit.(c) The following general conditions shall be applicable to every flexible permit.(1) Applicability. This section does not apply to physical or operational changes allowed without an amendment under §116.721 of this title (relating to Amendments and Alterations).(2) Construction progress. The permit holder shall report the start of construction, construction interruptions exceeding 45 days, and completion of construction to the appropriate regional office of the commission not later than 15 working days after occurrence of the event.(3) Start-up notification.(A) The permit holder shall notify the appropriate regional office of the commission and any local program having jurisdiction prior to the commencement of operations of the facilities authorized by the permit in such a manner that a representative of the commission may be present.(B) The permit holder shall provide a separate notification for the commencement of operations for each unit of phased construction, which may involve a series of facilities commencing operations at different times.(C) Prior to beginning operations of the facilities authorized by the permit, the permit holder shall identify to the Air Permits Division the source or sources of allowances to be utilized for compliance with Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program).(4) Sampling requirements.(A) If sampling is required, the flexible permit holder shall contact the commission's appropriate regional office prior to sampling to obtain the proper data forms and procedures.(B) All sampling and testing procedures must be approved by the executive director and coordinated with the appropriate regional office of the commission.(C) The flexible permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant.(5) Monitoring, Calculations, and Equivalency of Methods.(A) Each flexible permit shall specify requirements for monitoring or demonstrating compliance with emission caps and individual emission limits in the flexible permit.(B) Each flexible permit shall specify methods for calculating annual and short term emissions for each pollutant for a given type of facility.(C) The flexible permit holder must demonstrate or otherwise justify the equivalency of emission control methods, sampling or other emission testing methods, and monitoring or calculation methods proposed as alternatives to methods indicated in the conditions of the flexible permit. Requests for alternative emission control, sampling, monitoring, or calculation methods must be submitted in writing for review and approval by the executive director prior to their use in fulfilling any requirements of the permit.(6) Recordkeeping. The permit holder shall:(A) maintain a copy of the flexible permit (and any permit applications associated with the flexible permit) along with information and data sufficient to demonstrate continuous compliance with the emission caps and individual emission limitations contained in the flexible permit. This information and data shall include, but is not limited to:(i) emission cap and individual emission limitation calculations based on a 12-month rolling basis;(ii) emission cap and individual emission limitation calculations corresponding to any short term emission limitation; and(iii) Production records and operating hours.(B) keep all required records in a file at the plant site. If, however, the facility site normally operates unattended, records must be maintained at an office within Texas having day-to-day operational control of the facility site;(C) make the records available at the request of personnel from the commission or any local air pollution control agency having jurisdiction over the site, which, upon request, the commission shall make any such records of compliance available to the public in a timely manner;(D) comply with any additional recordkeeping requirements specified in special conditions in the permit; and(E) retain information in the file for at least two years following the date the information or data is obtained.(7) Maximum allowable emission rates. A flexible permit covers only those sources of emissions and those air contaminants listed in the table entitled "Emission Sources, Emissions Caps and Individual Emission Limitations" in the flexible permit. Each flexible permitted facility, group of facilities, or account is limited to the emission limits and other conditions specified in the table in the flexible permit.(8) Representations. The representations with regard to construction plans and operation procedures in an application for a permit or permit amendment are the conditions upon which a flexible permit or permit amendment is issued.(9) Emission cap readjustment. If a schedule to install additional controls is included in the flexible permit and a facility subject to such a schedule is taken out of service, the emission cap contained in the flexible permit will be readjusted for the period the facility is out of service to a level as if no schedule had been established. Unless a special condition specifies the method of readjustment of the emission cap, a permit alteration shall be obtained.(10) Maintenance of emission control. Each facility, group of facilities, or account authorized by the flexible permit shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. Notification for emissions events and scheduled maintenance shall be made in accordance with §101.201 and §101.211 of this title (relating to Emissions Event Reporting and Recordkeeping Requirements; and Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements).(11) Compliance with rules. Acceptance of a flexible permit by a permit applicant constitutes an acknowledgment and agreement that the holder will comply with all applicable Rules and Orders of the commission issued in conformity with the Texas Clean Air Act and the conditions precedent to the granting of the permit. If more than one state or federal rule or regulation or flexible permit condition are applicable, then the most stringent limit or condition shall govern and be the standard by which compliance shall be demonstrated. Acceptance of the permit includes consent to the entrance of commission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the flexible permit.(d) Each permit with emission caps must include special conditions that satisfy the following requirements for facilities subject to those caps. The monitoring system must accurately determine all emissions of the pollutants in terms of mass per unit of time. Any monitoring system authorized for use in the permit must be based on sound science and meet generally acceptable scientific procedures for data quality and manipulation. These requirements do not apply to facilities that are not subject to an emission cap.(e) There may be additional special conditions included in a flexible permit upon issuance or amendment of the permit. Such conditions in a flexible permit may be more restrictive than the requirements of this title.(f) The executive director may require as a special condition that the permit holder obtain written approval before constructing a source under a standard permit under Subchapter F of this chapter (relating to Standard Permits) or a permit by rule under Chapter 106 of this title. Such written approval may be required if the executive director specifically finds that an increase of a particular pollutant could either:(1) result in a significant impact on the air environment, or(2) cause the facility, group of facilities, or account to become subject to review under:(A) Subchapter E of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)); or(B) the provisions in Subchapter B, Divisions 5 and 6 of this chapter (relating to Nonattainment Review Permits; and Prevention of Significant Deterioration Review, respectively).</content><note type="source"><p>Source Note: The provisions of this §116.715 adopted to be effective December 8, 1994, 19 TexReg 9360; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective September 4, 2000, 25 TexReg 8668; amended to be effective March 29, 2001, 26 TexReg 2398; amended to be effective September 12, 2002, 27 TexReg 8546; amended to be effective September 14, 2003, 28 TexReg 7763; amended to be effective January 6, 2011, 35 TexReg 11909; amended to be effective July 31, 2014, 39 TexReg 5777.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.716"><num value="116.716">§116.716</num><heading>Emission Caps and Individual Emission Limitations</heading><content>(a) Emission caps. To establish a cap for a pollutant, the executive director will develop an emission cap for:(1) all facilities at an account; or(2) a designated group of facilities at an account.(b) Notwithstanding subsection (a) of this section, the executive director reserves the right to exclude any facility from an emissions cap if necessary to ensure compliance with the permit or to ensure the protection of human health and the environment.(c) Emissions will be calculated for each facility within an emission cap as follows:(1) Determination of control technology:(A) if the permit is used to authorize any facility, group of facilities, or account, or any change to existing facilities, that constitutes a new major stationary source or major modification for the pollutant as defined by §116.12 of this title (relating to Nonattainment and Prevention of Significant Deterioration Review Definitions), emissions shall be based on control technology determined in accordance with Subchapter B, Division 5 or 6 of this chapter (relating to Nonattainment Review Permits; and Prevention of Significant Deterioration Review, respectively) as applicable, at expected maximum capacity; or(B) based on application of best available control technology as defined in §116.10 of this title (relating to General Definitions), at expected maximum capacity.(2) pollutants emitted from facilities subject to lowest achievable emission rate review in accordance with Subchapter B, Division 5 of this chapter must be included in a separate emissions cap or listed as individual emission limitations.(3) the calculated emissions for all facilities within an emission cap will be summed.(4) a lower emission cap than that determined by paragraph (3) of this subsection may be proposed by the permit applicant if technical information is provided to demonstrate that it is feasible to operate in compliance with the proposed emission cap.(d) Individual emission limitations. An individual emission limitation will be established in the same permit for each pollutant not included in an emission cap for facilities authorized by the flexible permit. In addition, an individual emission limitation may be established for a pollutant included in an emission cap when the expected capacity of a facility is less than the expected maximum capacity to prevent a facility from exceeding emission levels appropriate for the proposed controls.(e) The permit shall clearly identify, by a table or other appropriate means, the facilities that are subject to an emission cap, and the facilities that are subject to individual emission limitations. A facility may be subject to both an emission cap and an individual emission limitation.(f) Adjustment of emission cap. The executive director will use the following criteria and procedures for adjustment of a cap.(1) If a facility subject to an emission cap is shut down for a period longer than six months, the emission cap shall be adjusted by decreasing the emission cap by an amount that the shut down facility contributed to the original calculation of the emission cap. If a shut down facility is returned to operation, the emission cap shall be adjusted by increasing the emission cap by the amount that the facility contributed to the original calculation of the emission cap; however, the emission cap cannot be increased beyond the original emission cap amount.(2) If a facility is to be added to the flexible permit, a permit amendment is required to establish a revised emission cap. If an existing emission cap is to be increased as a result of adding a new facility or the modification of a facility within the emission cap, an amendment application is required.(3) An emission cap will be decreased for any facility, group of facilities, or account authorized by a flexible permit if that facility becomes subject to any new state or federal rule or regulation which would lower emissions or require an emission reduction. The adjustment will be made the next time the flexible permit is amended or altered. If an amendment to a flexible permit is not required to meet the new requirement, then within 60 days of making the change, the permittee must submit a request to alter the permit and include information describing how compliance with the new requirement will be demonstrated.</content><note type="source"><p>Source Note: The provisions of this §116.716 adopted to be effective December 8, 1994, 19 TexReg 9360; amended to be effective January 6, 2011, 35 TexReg 11909; amended to be effective July 31, 2014, 39 TexReg 5777.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.717"><num value="116.717">§116.717</num><heading>Implementation Schedule for Additional Controls</heading><content>If a facility requires the installation of additional control or controls to meet an emission cap for a pollutant, the flexible permit shall specify an implementation schedule for such additional controls. The permit may also specify how the emission cap will be adjusted if such a facility is taken out of service or fails to install the additional control equipment as provided by the implementation schedule.</content><note type="source"><p>Source Note: The provisions of this §116.717 adopted to be effective December 8, 1994, 19 TexReg 9360; amended to be effective January 6, 2011, 35 TexReg 11909; amended to be effective July 31, 2014, 39 TexReg 5777.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.718"><num value="116.718">§116.718</num><heading>Significant Emission Increase</heading><content>An increase in emissions from operational or physical changes at an existing facility authorized by a flexible permit is insignificant, for the purposes of minor new source review under this subchapter, if the increase does not exceed either the emission cap or individual emission limitation. This section does not apply to an increase in emissions from a new facility or to the emission of an air contaminant not previously emitted by an existing facility.</content><note type="source"><p>Source Note: The provisions of this §116.718 adopted to be effective December 8, 1994, 19 TexReg 9360; amended to be effective January 6, 2011, 35 TexReg 11909; amended to be effective July 31, 2014, 39 TexReg 5777.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.720"><num value="116.720">§116.720</num><heading>Limitation on Physical and Operational Changes</heading><content>Operational or physical changes authorized under this subchapter may not result in an increase in actual emissions at facilities not authorized by the flexible permit unless those affected facilities are authorized pursuant to §116.110 of this title (relating to Applicability).</content><note type="source"><p>Source Note: The provisions of this §116.720 adopted to be effective December 8, 1994, 19 TexReg 9360; amended to be effective January 6, 2011, 35 TexReg 11909.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.721"><num value="116.721">§116.721</num><heading>Amendments and Alterations</heading><content>(a) Flexible permit amendments. All representations with regard to construction plans and operation procedures in an application for a flexible permit or flexible permit amendment, as well as any general and special conditions, become conditions upon which the subsequent flexible permit is issued. Except as provided in §116.118 of this title (relating to Construction While Permit Amendment Application Pending), it shall be unlawful for any person to vary from such representation or flexible permit provision if the change will cause a change in the method of control of emissions or the character of the emissions, will relax emission controls, or will result in a significant increase in emissions unless application is made to the executive director to amend the flexible permit in that regard and such amendment is approved by the executive director or commission. Applications to amend a flexible permit shall be submitted with a completed Form PI-1 and are subject to the requirements of §116.711 of this title (relating to Flexible Permit Application).(b) Flexible permit alterations.(1) A flexible permit alteration is for any variation from a representation in a flexible permit application or a general or special provision of a flexible permit that does not require a flexible permit amendment.(2) All flexible permit alterations which may involve a change in a general or special condition contained in the flexible permit, or affect control equipment performance must receive prior approval by the executive director. The executive director shall be notified in writing of all other flexible permit alterations within ten days of implementing the change, unless the permit provides for a different method of notification. Any flexible permit alteration request or notification shall include information sufficient to demonstrate that the change does not interfere with the owner or operator's previous demonstrations of compliance with the requirements of §116.711 of this title, including the protection of public health and welfare. The appropriate commission regional office and any local air pollution program having jurisdiction shall be provided copies of all flexible permit alteration documents.(3) Flexible permit alterations shall not be subject to the requirements of best available control technology identified in §116.711(2) of this title.(c) Changes not requiring an amendment or alteration. The following changes do not require an amendment or alteration, except that an amendment is required if the change will cause a change in the method of control of emissions or the character of the emissions, will relax emission controls, will result in a significant increase in emissions as determined under §116.718 of this title (relating to Significant Emission Increase), or conflicts with an existing permit condition:(1) a change in throughput; or(2) a change in feedstock.(d) Permit by rule under Chapter 106 of this title (relating to Permits by Rule) in lieu of permit amendment or alteration.(1) Regardless of subsection (a) or (b) of this section, no permit amendment or alteration is required if the changes to the permitted facility qualify for a permit by rule under Chapter 106 of this title unless prohibited by permit provision as provided in §116.715 of this title (relating to General and Special Conditions). All such changes permitted by rule to a permitted facility shall be incorporated into that facility's permit at such time as the permit is amended or renewed.(2) Emission increases authorized by Chapter 106 of this title at an existing facility authorized by a flexible permit shall not cause an exceedance of the emissions cap or individual emission limitation.</content><note type="source"><p>Source Note: The provisions of this §116.721 adopted to be effective December 8, 1994, 19 TexReg 9360; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective September 4, 2000, 25 TexReg 8668; amended to be effective January 6, 2011, 35 TexReg 11909; amended to be effective July 31, 2014, 39 TexReg 5777; amended to be effective August 6, 2020, 45 TexReg 5351.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.722"><num value="116.722">§116.722</num><heading>Distance Limitations</heading><content>No flexible permit may be issued unless the distance and location restrictions found in §116.112 of this title (relating to Distance Limitations) are met.</content><note type="source"><p>Source Note: The provisions of this §116.722 adopted to be effective December 8, 1994, 19 TexReg 9360; amended to be effective September 4, 2000, 25 TexReg 8668.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.730"><num value="116.730">§116.730</num><heading>Compliance History</heading><content>As part of a flexible permit review, or the review of an amendment of a flexible permit, or renewal of an existing flexible permit, the requirements of Chapter 60 of this title (relating to Compliance History) shall be applicable to the facility, group of facilities, or account being permitted, amended, or renewed.</content><note type="source"><p>Source Note: The provisions of this §116.730 adopted to be effective December 8, 1994, 19 TexReg 9360; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective August 29, 2002, 27 TexReg 7910; amended to be effective January 6, 2011, 35 TexReg 11909.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.740"><num value="116.740">§116.740</num><heading>Public Notice and Comment</heading><content>(a) Any person who applies for a flexible permit or an amendment to a flexible permit shall comply with the requirements in Chapter 39 of this title (relating to Public Notice).(b) Any person who applies for an amendment to a flexible permit regarding an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)) subject to Subchapter E of this title (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)) shall comply with the requirements in Chapter 39 of this title.</content><note type="source"><p>Source Note: The provisions of this §116.740 adopted to be effective December 8, 1994, 19 TexReg 9360; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective September 23, 1999, 24 TexReg 8296; amended to be effective January 6, 2011, 35 TexReg 11909.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.750"><num value="116.750">§116.750</num><heading>Flexible Permit Fee</heading><content>(a) Fees required. Any person who applies for a flexible permit or for an amendment to an existing flexible permit shall remit, at the time of application for such permit, a fee as set forth in subsection (b) of this section. Fees will not be charged for flexible permit alterations, changes of ownership, or changes of location of permitted facilities.(b) Fee amounts. The fee to be remitted with a flexible permit application shall be determined as set forth in §116.141 of this title (relating to Determination of Fees).(c) Payment of fees. All permit fees for a flexible permit shall be remitted in the form of a check, certified check, electronic funds transfer, or money order made payable to the Texas Commission on Environmental Quality and delivered with the application for flexible permit or flexible permit amendment to the commission's Air Permits Division. Required fees must be received before the agency will begin examination of the application.(d) Return of fees. Fees must be paid at the time an application for a flexible permit or flexible permit amendment is submitted. If the applicant withdraws the application prior to issuance of the flexible permit or flexible permit amendment, one-half of the fee will be refunded, except that the entire fee will be refunded for any such application for which a permit by rule under Chapter 106 of this title (relating to Permits by Rule) is allowed. No fees will be refunded after a deficient application has been voided, denied, or after a flexible permit or flexible permit amendment has been issued by the agency.</content><note type="source"><p>Source Note: The provisions of this §116.750 adopted to be effective December 8, 1994, 19 TexReg 9360; amended to be effective July 8, 1998, 23 TexReg 6973; amended to be effective September 4, 2000, 25 TexReg 8668; amended to be effective October 20, 2002, 27 TexReg 9616; amended to be effective January 6, 2011, 35 TexReg 11909.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.760"><num value="116.760">§116.760</num><heading>Flexible Permit Renewal</heading><content>Flexible permits will be renewed in accordance with Subchapter D of this chapter (relating to Permit Renewals).</content><note type="source"><p>Source Note: The provisions of this §116.760 adopted to be effective December 8, 1994, 19 TexReg 9360.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scG/s116.765"><num value="116.765">§116.765</num><heading>Compliance Schedule</heading><content>(a) The compliance date is 60 days after publication in the Federal Register of the final approval by the United States Environmental Protection Agency (EPA) of all or portions of §§116.13, 116.710, 116.711, 116.714 - 116.718, 116.720 - 116.722, 116.740, 116.750, 116.760, and 116.765 of this title (relating to Flexible Permit Definitions; Applicability; Flexible Permit Application; Application Review Schedule; General and Special Conditions; Emission Caps and Individual Emission Limitations; Implementation Schedule for Additional Controls; Significant Emission Increase; Limitation on Physical and Operational Changes; Amendments and Alterations; Distance Limitations; Public Notice and Comment; Flexible Permit Fee; Flexible Permit Renewal; and Compliance Schedule) submitted to the EPA as revisions to the Texas State Implementation Plan. (b) Until the compliance date specified by subsection (a) of this section, applications for flexible permits are governed by §§116.710, 116.711, 116.715 - 116.718, 116.720, 116.721, 116.730, 116.740 and 116.750 of this title, as they existed immediately before January 5, 2011, and those rules are continued in effect for that purpose. All other sections in this subchapter remain applicable to applications for flexible permits.</content><note type="source"><p>Source Note: The provisions of this §116.765 adopted to be effective January 6, 2011, 35 TexReg 11909; amended to be effective July 31, 2014, 39 TexReg 5777.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c116/scI"><num value="I">SUBCHAPTER I</num><heading>ELECTRIC GENERATING FACILITY PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.910"><num value="116.910">§116.910</num><heading>Applicability</heading><content>(a) The owner or operator of a grandfathered electric generating facility (EGF) shall apply for a permit to operate that facility under this subchapter and may apply for permit authorization to operate certain facilities (identified in §116.911(f) of this title (relating to Electric Generating Facility Permit Application)) that are located at the same site as a grandfathered EGF.(b) Owners or operators of electing EGFs opting to obtain allowances under Chapter 101, Subchapter H, Division 2 of this title (relating to Emissions Banking and Trading of Allowances), shall submit a request to alter any related existing New Source Review (NSR) permits at the time of application for a permit under subsection (a) of this section. Alterations must be consistent with the requirements of §116.116(c) of this title (relating to Changes to Facilities).(c) The owner, or the operator who is authorized to act for the owner, of a grandfathered or electing EGF is responsible for complying with this subchapter.(d) A municipal corporation, electric cooperative, or river authority may exclude any EGF with a nameplate capacity of 25 megawatts or less from this subchapter. The municipal corporation, electric cooperative, or river authority must notify the commission by January 1, 2000, of its intent to exclude those EGFs. If the municipal corporation, electric cooperative, or river authority reevaluates its intent to exclude EGFs, it may choose to permit any of those EGFs consistent with the requirements of this subchapter.(e) A grandfathered EGF that generates electric energy primarily for internal use but that during 1997 sold, to a utility power distribution system, less than one-third of its potential electrical output capacity, or less than 219,000 megawatt-hours, is not required to obtain a permit under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §116.910 adopted to be effective January 11, 2000, 25 TexReg 185; amended to be effective June 12, 2002, 27 TexReg 4954; amended to be effective July 1, 2021, 46 TexReg 3924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.911"><num value="116.911">§116.911</num><heading>Electric Generating Facility Permit Application</heading><content>(a) Owners or operators of grandfathered or electing electric generating facilities (EGF) shall submit an application to authorize nitrogen oxides (NOx ) emissions and, if applicable, sulfur dioxide (SO2) and particulate matter (PM) emissions. The application must include a completed Form PI-1-U, General Application. The Form PI-1-U must be signed by an authorized representative of the applicant. The Form PI-1-U specifies additional support information which must be provided before the application is deemed complete. In order to be granted an electric generating facility permit (EGFP), the owner or operator shall submit information to the commission which demonstrates that all of the following are met.(1) Measurement of emissions and performance demonstration. Applicants must propose monitoring and reporting for the measurement of emissions and demonstration of performance consistent with §116.914 of this title (relating to Emissions Monitoring and Reporting Requirements). (2) Control method. New control methods proposed in initial applications must comply with the requirements in §116.617(1), (3), (4)(A), and (B) and (5) - (9) of this title (relating to Standard Permit for Pollution Control Projects).(3) Air dispersion modeling or ambient monitoring for pollution control projects. Computerized air dispersion modeling and/or ambient monitoring may be required by the commission's Air Permits Division where there is an increase in emissions to determine the air quality impacts from controls proposed under paragraph (2) of this subsection.(4) Opacity limitations for coal-fired grandfathered and electing EGFs. The coal-fired grandfathered and electing EGFs must meet the opacity limitations of §111.111 of this title (relating to Requirements for Specified Sources).(b) Application information for electing EGFs.(1) In addition to the information required in this section, EGFP applications regarding electing EGFs shall contain the following information:(A) documentation of the emissions from the 1997 Emissions Scorecard from the EPA Acid Rain Program, or if that information is not available, the actual emissions from that electing EGF for calendar year 1997;(B) documentation of fuel consumption, fuel heating values, and heat input in millions of British thermal units (MMBtu) for calendar year 1997;(C) identification of the electing EGFs to be included.(2) Emissions of air contaminants from electing EGFs other than NOx , and if applicable, SO2 and PM, already authorized by Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification), will not be authorized under this subchapter.(c) The owner or operator of a grandfathered or electing EGF must submit an application for a permit under this subchapter on or before September 1, 2000.(d) Any grandfathered natural gas-fired EGF for which a permit application was filed under subsection (a) of this section, or for which a permit has been obtained in accordance with subsection (a) of this section, or which is excluded in accordance with §116.910(d) of this title (relating to Applicability) from the requirement to submit an application under subsection (a) of this section is considered permitted for the emissions of all air contaminants from that EGF.(e) An owner or operator of a grandfathered coal-fired EGF with a permit issued in accordance with subsection (a) of this section or with an application pending under subsection (a) of this section may submit an application for an EGFP in accordance with to §116.917 of this title (relating to Electric Generating Facility Permit Application for Certain Grandfathered Coal-Fired Electric Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating Facility Sites) to authorize the emissions of all criteria pollutants from the EGF other than NOX , SO2, and PM as it relates to opacity.(f) An owner or operator of a grandfathered or electing EGF with a permit application pending under subsection (a) of this section or a permit issued in accordance with subsection (a) of this section may submit an application for an EGFP in accordance with §116.917 of this title to also authorize each of the following types of facilities that are located at the same site as the EGF:(1) a generator that does not generate electric energy for compensation and is used not more than 10% of the normal annual operating schedule; or(2) an auxiliary fossil-fuel-fired combustion facility that does not generate electric energy and does not emit more than 100 tons per year of any air contaminant.(g) Any application submitted in accordance with §116.917 of this title for facilities identified in subsection (e) of this section must be submitted by September 1, 2003. Any application submitted in accordance with §116.917 of this title for facilities identified in subsection (f)(1) or (2) of this section must be submitted by September 1, 2002. (h) Emissions of air contaminants from facilities identified in subsection (f)(1) or (2) of this section must be included in each applicable emissions allowance trading program under Chapter 101, Subchapter H, Division 2 of this title (relating to Emissions Banking and Trading Allowances). The commission will not issue any new emissions allowance for the emissions of any air contaminant from such a facility.(i) All applications for an EGFP shall be submitted under the seal of a Texas licensed professional engineer if required by §116.110(e) of this title (relating to Applicability).</content><note type="source"><p>Source Note: The provisions of this §116.911 adopted to be effective January 11, 2000, 25 TexReg 185; amended to be effective June 12, 2002, 27 TexReg 4954; amended to be effective July 1, 2021, 46 TexReg 3924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.912"><num value="116.912">§116.912</num><heading>Electing Electric Generating Facilities</heading><content>An electing electric generating facility (EGF) may opt out of the requirements of this subchapter under the following conditions.(1) The electing EGF must notify the commission of its intent to opt out prior to the beginning of the next control period. The decision to opt out of the requirements of this subchapter will become effective at the beginning of the control period that follows notification to the commission.(2) The electing EGF may not opt out during a control period.(3) Once the electing EGF has opted out, all of the following apply:(A) all allowances for the electing EGF will be voided by the commission and may not be banked for subsequent use;(B) no allowances will be allocated for subsequent control periods;(C) the electing EGF may not participate in the emissions banking and trading of allowances at any future date;(D) the owner or operator shall request an alteration to the existing New Source Review permit to remove the conditions referencing the electric generating facility permit.</content><note type="source"><p>Source Note: The provisions of this §116.912 adopted to be effective January 11, 2000, 25 TexReg 185.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.913"><num value="116.913">§116.913</num><heading>General and Special Conditions</heading><content>(a) The following general conditions shall be applicable to every electric generating facility permit (EGFP) unless otherwise specified in the permit. (1) A permit issued under this subchapter may authorize the following: (A) for grandfathered natural gas-fired electric generating facilities (EGFs), emissions of all air contaminants; (B) for grandfathered coal-fired EGFs, nitrogen oxides (NOx ) emissions, sulfur dioxide (SO 2) emissions, and particulate matter (PM) through opacity limitations as specified in §111.111 of this title (relating to Requirements for Specified Sources); (C) for electing natural gas-fired EGFs, allowances for NOx emissions; (D) for electing coal-fired EGFs, allowances for NO x emissions, allowances for SO2 emissions, and PM through opacity limitations as specified in §111.111 of this title; and (E) for facilities identified in §116.917(a) of this title (relating to Electric Generating Facility Permit Application for Certain Grandfathered Coal-Fired Electric Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating Facility Sites), emissions of all criteria pollutants. (2) Permits for grandfathered facilities as defined in §116.10 of this title (relating to General Definitions) at sites with grandfathered or electing EGFs and permitted under Subchapter H of this chapter (relating to Permits for Grandfathered Facilities) may be consolidated with a permit issued under this subchapter. (3) The owner or operator of a grandfathered EGF, an electing EGF, and if applicable, any facility included in an EGFP under §116.917 of this title, must comply with Chapter 101, Subchapter H, Division 2 of this title (relating to Emissions Banking and Trading of Allowances) including the requirement to maintain allowances in a compliance account. Allowances may be transferred in accordance with §101.335 of this title (relating to Allowance Banking and Trading). (4) Mass emission monitoring and reporting shall be conducted in accordance with §116.914 of this title (relating to Emissions Monitoring and Reporting Requirements). (5) On June 1 after every control period, the owner or operator shall hold a quantity of allowances for emissions of NO x and, where applicable, SO2, in its compliance account that is equal to or greater than the total emissions of that air contaminant emitted during the prior control period for each EGF permitted in accordance with §116.911(a) and (b) of this title (relating to Electric Generating Facility Permit Application) and for each facility permitted in accordance with §116.917 of this title. (6) Owners or operators shall submit a report of the amount of emissions of each allocated air contaminant, from the prior control period to the Air Permits Division consistent with the requirements of §101.336(b) of this title (relating to Emission Monitoring, Compliance Demonstration, and Reporting). (7) Coal-fired grandfathered and electing EGFs must meet the opacity limitations of §111.111 of this title. (8) Natural gas-fired EGFs that were designed to also burn fuel oil may burn any American Society for Testing and Materials (ASTM) grade fuel oil or mixture of ASTM grade fuel oils containing not more than 0.7% sulfur by weight as determined by ASTM Method D 396. Burning of fuel oil does not relieve the owner or operator of the EGF from the responsibility to comply with the emission limitations, allowances, or conditions of any permit or state or federal regulation. The burning of waste or used oils is not authorized by this subchapter. (9) Owners or operators of natural gas fired EGFs that were designed to also burn fuel oil shall submit an annual report for the EGFs that burned fuel oil during each control period. The report shall include the names of the unit(s) burning fuel oil, the date(s) that fuel oil is burned, the amount of fuel oil burned, and the ASTM grade(s) of the fuel oil or fuel oil mixture that is burned. This report shall be included with the report required by §101.336(b) of this title (relating to Emission Monitoring, Compliance Demonstration, and Reporting). (b) Special conditions may be included in the EGFP.</content><note type="source"><p>Source Note: The provisions of this §116.913 adopted to be effective January 11, 2000, 25 TexReg 185; amended to be effective June 12, 2002, 27 TexReg 4954.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.914"><num value="116.914">§116.914</num><heading>Emissions Monitoring and Reporting Requirements</heading><content>(a) Grandfathered or electing electric generating facilities (EGF) subject to 40 Code of Federal Regulations Part 75, effective June 25, 1999 (40 CFR Part 75) shall do the following. (1) For grandfathered or electing EGFs subject to the requirements of 40 CFR Part 75, concerning Continuous Emission Monitoring, all monitoring systems must comply with the initial performance testing and periodic calibration, accuracy testing, and quality assurance/quality control testing specified in 40 CFR Part 75. (2) For grandfathered and electing EGFs subject to 40 CFR Part 75, a certified monitoring system under 40 CFR Part 75 shall be used to demonstrate compliance with this subchapter. (A) If the grandfathered or electing EGF has a flow monitor certified under 40 CFR Part 75, nitrogen oxides (NO x) emissions in pounds per hour shall be determined using a NOx continuous emission monitoring system (CEMS) and the flow monitor. (B) If the grandfathered or electing EGF does not have a certified flow monitor, but does have a NOx CEMS, NOx emissions in pounds per hour shall be determined by multiplying pounds of NOx per million British thermal units (lbs/MMBtu) times heat input in MMBtu per hour (MMBtu/hr). The procedures in 40 CFR Part 75, Appendix F, concerning Conversion Procedures, Section 3, shall be used to convert the measured concentration of NOx and a diluent (carbon dioxide (CO 2) or oxygen (O2)) into an emission rate in lbs/MMBtu. The procedures in 40 CFR Part 75, Appendix F, Section 5, shall be used to determine the hourly heat input in MMBtu/hr. These two values (lbs/MMBtu and MMBtu/hr) shall be multiplied together to determine NO x emissions in lbs/hr. (C) The procedures in 40 CFR Part 75, Appendix E, concerning Optional NOx Emissions Estimation Protocol for Gas-fired Peaking Units and Oil-fired Peaking Units, may be used to estimate the NOx emission rate. (b) Grandfathered or electing EGFs not subject to 40 CFR Part 75 shall comply with: (1) the initial performance testing and periodic calibration, accuracy testing, and quality assurance/quality control testing specified in 40 CFR Part 75; or (2) those same requirements in 40 CFR Part 60, concerning New Source Performance Standards (40 CFR Part 60). Actual emissions must be determined by multiplying the CEMs data by an adjustment factor of 1.1 for all grandfathered and electing EGFs not using a 40 CFR Part 75 monitoring system if the CEMs exceeds 10% relative accuracy. (3) in lieu of the monitoring required by paragraph (1) or (2) of this subsection, the electric generating facility permit (EGFP) may authorize alternative monitoring to calculate mass emissions under this section. The applicant must submit the following for review of an alternative monitoring proposal: (A) a description of the monitoring approach to be used; (B) a description of the major components of the monitoring system, including the manufacturer, serial number of the component, the measurement span of the component, and documentation to demonstrate that the measurement span of each component is appropriate to measure all of the expected values; (C) an estimate of the accuracy of the system and documentation to demonstrate how the estimate of accuracy was determined; (D) a description of the tests that will be used for initial certification, initial quality assurance, periodic quality assurance, and relative accuracy; and (E) additional information may be requested before approving a request for alternative monitoring. Alternative monitoring shall be incorporated into the EGFP. (4) emissions in pounds per hour shall be determined using the NOxCEMS and one of the following methods. (A) The owner or operator may elect to comply with subsection (a)(2)(A) or (B) of this section. (B) The grandfathered or electing EGF may use a flow monitor certified under 40 CFR Part 60 to determine emissions in pounds per hour. (C) NOx emissions in pounds per hour may be determined by multiplying the lbs/MMBtu times the heat input in MMBtu/hr. The procedures in 40 CFR Part 60, Appendix A, Method 19 shall be used to convert the measured concentration of NOx and a diluent (CO2 or O 2) into emission rates in lbs/MMBtu. The procedures in 40 CFR Part 75, Section 5, Appendix F shall be used to determine the hourly heat input in MMBtu/hr. These two values (lbs/MMBtu and MMBtu/hr) shall be multiplied together to determine NOx emissions in lbs/hr; (5) for grandfathered and electing EGFs with a heat input of less than 100 MMBtu/hr and for peaking units emissions in pounds per hour, may be determined using the procedures in Appendix E of 40 CFR Part 75 to estimate the emission rate. (c) The following requirements apply to all grandfathered and electing EGFs. (1) During a period when valid data is not being recorded by monitoring devices approved for use to demonstrate compliance with this subchapter, missing or invalid data shall be replaced with representative default data in accordance with the provisions of 40 CFR Part 75, Subpart D, concerning Missing Data Substitution Procedures. (2) Data collected from monitoring of grandfathered and electing EGFs shall be used to calculate the actual emissions over a control period. The information in this report shall be submitted by June 30 of each year and may be submitted with the report required under §101.336(b) of this title (relating to Emission Monitoring, Compliance Demonstration, and Reporting). At a minimum, the report shall contain the following information: (A) a description of the monitoring protocol; (B) a completed Form AR-1, Emissions Monitoring Data Form; (C) other information as necessary to validate the actual emissions during the prior control period, including, but not limited to, periodic calibration results and maintenance logs.</content><note type="source"><p>Source Note: The provisions of this §116.914 adopted to be effective January 11, 2000, 25 TexReg 185.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.915"><num value="116.915">§116.915</num><heading>Compliance History</heading><content>For all permit reviews under this subchapter, compliance history reviews are required under Chapter 60 of this title (relating to Compliance History). However, any grandfathered natural gas-fired electric generating facility (EGF) which is considered permitted for the emissions of all air contaminants under §116.911(d) of this title (relating to Electric Generating Facility Permit Application) will be subject to a compliance history review only for a modification, or the amendment or renewal of the facility's EGF permit.</content><note type="source"><p>Source Note: The provisions of this §116.915 adopted to be effective August 29, 2002, 27 TexReg 7910.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.916"><num value="116.916">§116.916</num><heading>Permits for Grandfathered and Electing Electric Generating Facilities in El Paso County</heading><content>Grandfathered and electing electric generating facilities in El Paso County are not required to meet nitrogen oxides allowance requirements if the commission or EPA determines that reductions in nitrogen oxides emissions in the El Paso Region otherwise required by this subchapter would result in increased ambient ozone levels in El Paso County.</content><note type="source"><p>Source Note: The provisions of this §116.916 adopted to be effective January 11, 2000, 25 TexReg 185.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.917"><num value="116.917">§116.917</num><heading>Electric Generating Facility Permit Application for Certain Grandfathered Coal-Fired Electric Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating Facility Sites</heading><content>(a) Any application for an electric generating facility permit (EGFP) for additional criteria pollutants from grandfathered coal-fired electric generating facilities (EGFs) identified in §116.911(e) of this title (relating to Electric Generating Facility Permit Application) or for grandfathered facilities identified in §116.911(f)(1) or (2) of this title (relating to Electric Generating Facility Permit Application) must include a completed Form PI-1G, Grandfathered Facility Permit Application. The Form PI-1G must be signed by an authorized representative of the applicant. The Form PI-1G specifies additional support information which must be provided before the application is deemed complete. In order to be granted a permit for a grandfathered facility under this section, the owner or operator of the grandfathered facility shall submit information to the commission which demonstrates that all of the following are met.(1) Protection of public health and welfare. The emissions from the grandfathered facility will comply with all rules and regulations of the commission and with the intent of the TCAA, including protection of the health and physical property of the people.(2) Measurement of emissions. The EGFP may have provisions for measuring the emission of air contaminants as determined by the commission. These may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission Sampling Procedures Manual," portable analyzers, or emissions calculations if a known process variable is monitored.(3) New Source Performance Standards (NSPS). The emissions from each affected facility as defined in 40 Code of Federal Regulations (CFR) Part 60 will meet at least the requirements of any applicable NSPS as listed under 40 CFR Part 60, promulgated by the EPA under authority granted in accordance with FCAA, §111, as amended.(4) National Emission Standards for Hazardous Air Pollutants (NESHAP). The emissions from each facility as defined in 40 CFR Part 61 will meet at least the requirements of any applicable NESHAP, as listed under 40 CFR Part 61, promulgated by the EPA under authority granted in accordance with FCAA, §112, as amended.(5) NESHAPs for source categories. The emissions from each affected facility shall meet at least the requirements of any applicable maximum achievable control technology (MACT) standard as listed under 40 CFR Part 63, promulgated by the EPA in accordance with FCAA, §112, or as listed under Chapter 113, Subchapter C of this title (relating to National Emission Standards for Hazardous Air Pollutants for Source Categories (FCAA, Section 112, 40 CFR 63)).(6) Performance demonstration. The grandfathered facility will achieve the performance specified in the permit application. The commission may require the applicant to submit additional engineering data after an EGFP has been issued in order to demonstrate further that the grandfathered facility will achieve the performance specified in the permit. In addition, the commission may require initial compliance testing to determine ongoing compliance through engineering calculations based on measured process variables, parametric or predictive monitoring, stack monitoring, or stack testing.(7) Nonattainment review. A grandfathered facility in a nonattainment area shall comply with all applicable requirements under Subchapter B, Division 5 of this chapter (relating to Nonattainment Review).(8) Prevention of Significant Deterioration (PSD) review. A grandfathered facility in an attainment area shall comply with all applicable requirements under Subchapter B, Division 6 of this chapter (relating to Prevention of Significant Deterioration Review).(9) Air dispersion modeling or ambient monitoring. The commission may require computerized air dispersion modeling and/or ambient monitoring to determine the air quality impacts from the grandfathered facility.(10) Federal standards of review for constructed or reconstructed major sources of hazardous air pollutants. If the grandfathered facility is an affected source (as defined in §116.15(1) of this title (relating to Section 112(g) Definitions)), the affected source shall comply with all applicable requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, Section 112(g), 40 CFR Part 63)).(11) Application content. In addition to any other requirements of this subchapter, the applicant shall:(A) identify each facility to be included in the electric generating facility permit;(B) identify the air contaminants emitted; and(C) provide emission rate calculations.(b) Upon request, the commission shall consolidate an application submitted in accordance with this section with an application pending in accordance with §116.911(a) of this title.(c) Applications submitted in accordance with this section are subject to the requirements of §116.920 of this title (relating to Public Participation for Initial Issuance).</content><note type="source"><p>Source Note: The provisions of this §116.917 adopted to be effective June 12, 2002, 27 TexReg 4954.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.918"><num value="116.918">§116.918</num><heading>Additional General and Special Conditions for Grandfathered Coal-Fired Electric Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating Facility Sites</heading><content>(a) Permits issued to facilities submitting applications under §116.917 of this title (relating to Electric Generating Facility Permit Application for Certain Grandfathered Coal-Fired Electric Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating Facility Sites) may contain general and special conditions. The holders of a permit under this subchapter shall comply with any and all such conditions.(b) General conditions. Holders of permits issued to facilities submitting applications in accordance with §116.917 of this title shall comply with the following general conditions, regardless of whether they are specifically stated within the permit document.(1) Sampling requirements.(A) If sampling is required, the permit holder shall contact the commission's Office of Compliance and Enforcement prior to sampling to obtain the proper data forms and procedures.(B) All sampling and testing procedures must be approved by the executive director and coordinated with the regional representatives of the commission.(C) The permit holder is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant.(2) Equivalency of methods. The permit holder must demonstrate or otherwise justify the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the permit. Alternative methods shall be applied for in writing and must be reviewed and approved by the executive director prior to their use in fulfilling any requirements of the permit.(3) Recordkeeping. The permit holder shall:(A) maintain a copy of the permit along with records containing the information and data sufficient to demonstrate compliance with the permit, including production records and operating hours;(B) keep all required records in a file at the plant site. If, however, the facility normally operates unattended, records shall be maintained at the nearest staffed location within the State of Texas specified in the application;(C) make the records available at the request of personnel from the commission or any air pollution control program having jurisdiction;(D) comply with any additional recordkeeping requirements specified in special conditions attached to the permit; and(E) retain information in the file for at least two years following the date that the information or data is obtained.(4) Maximum allowable emission rates. The total emissions of air contaminants from any of the sources of emissions must not exceed the values stated on the table attached to the permit entitled "Emission Sources--Maximum Allowable Emission Rates."(5) Maintenance of emission control. The permitted facilities shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. The permit holder shall provide notification for upset and maintenance in accordance with §101.6 and §101.7 of this title (relating to Upset Reporting and Recordkeeping Requirements; and Maintenance, Startup and Shutdown Reporting, Recordkeeping, and Operational Requirements).(6) Compliance with rules.(A) Acceptance of a permit by an applicant constitutes an acknowledgment and agreement that the permit holder will comply with all rules, regulations, and orders of the commission issued in conformity with the TCAA and the conditions precedent to the granting of the permit.(B) If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition shall govern and be the standard by which compliance shall be demonstrated.(C) Acceptance includes consent to the entrance of commission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the permit.(c) Special conditions. The holders of permits issued under this subchapter shall comply with all special conditions contained in the permit document.(1) Special conditions may be attached to a permit that are more restrictive than the requirements of this title.(2) Special condition for written approval.(A) The executive director may require as a special condition that the permit holder obtain written approval before constructing a source under:(i) a standard permit in accordance with Subchapter F of this chapter (relating to Standard Permits); or(ii) a permit by rule under Chapter 106 of this title (relating to Permits by Rule).(B) Such written approval may be required if the executive director specifically finds that an increase of a particular pollutant could either:(i) result in a significant impact on the air environment; or(ii) cause the facility to become subject to review under:(I) Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, Section 112(g), 40 CFR Part 63)); or(II) the provisions in Subchapter B, Division 5 of this chapter (relating to Nonattainment Review) and Subchapter B, Division 6 of this chapter (relating to Prevention of Significant Deterioration Review).</content><note type="source"><p>Source Note: The provisions of this §116.918 adopted to be effective June 12, 2002, 27 TexReg 4954.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.919"><num value="116.919">§116.919</num><heading>Additional Requirements for Grandfathered Electric Generating Facility Permit Applications</heading><content>In addition to complying with all applicable requirements of this subchapter, any application for a new grandfathered electric generating facility permit under Texas Health and Safety Code, TCAA, §382.05185(c) and (d) (relating to Electric Generating Facility Permits) for auxiliary combustors and coal-fired units only must include emissions from the facility resulting from any associated dockside vessel operations. These emissions must comply with all rules and regulations of the commission and with the intent of the TCAA, including protection of the health and property of the public and minimization of emissions to the extent possible, consistent with good air pollution control practices.</content><note type="source"><p>Source Note: The provisions of this §116.919 adopted to be effective September 12, 2002, 27 TexReg 8546.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.920"><num value="116.920">§116.920</num><heading>Public Participation for Initial Issuance</heading><content>(a) An applicant for an electric generating facility permit (EGFP) shall publish notice of intent to obtain the permit in accordance with Chapter 39 of this title (relating to Public Notice).(b) Any person who may be affected by emissions from a grandfathered or electing EGF may request the commission to hold a notice and comment hearing on the EGFP application. The public comment period shall end 30 days after the publication of Notice of Receipt of Application and Intent to Obtain Permit under §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit). Any hearing request must be made in writing during the 30-day public comment period.(c) Any hearing regarding initial issuance of an EGFP shall be conducted under the procedures in §116.921 of this title (relating to Notice and Comment Hearings for Initial Issuance) and not under the Administrative Procedure Act.(d) Responses to public comments and the notice of the commission's decision to issue or deny an EGFP shall be conducted under the procedures in §116.922 of this title (relating to Notice of Final Action).(e) A person affected by a decision to issue or deny an EGFP may move for rehearing under the appropriate procedure in Chapter 50 of this title (relating to Action on Applications and Other Authorizations) and may seek judicial review under Texas Clean Air Act, §382.032 (relating to Appeal of Commission Action).</content><note type="source"><p>Source Note: The provisions of this §116.920 adopted to be effective January 11, 2000, 25 TexReg 185; amended to be effective July 1, 2021, 46 TexReg 3924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.921"><num value="116.921">§116.921</num><heading>Notice and Comment Hearings for Initial Issuance</heading><content>(a) The notice and comment hearing requirements apply only to the initial issuance of an electric generating facility permit (EGFP).(b) The commission shall decide whether to hold a hearing. The commission is not required to hold a hearing if the basis of the request by a person who may be affected by emissions from a grandfathered or electing electric generating facility (EGF) or a facility described in §116.911(f) of this title (relating to Electric Generating Facility Permit Application) is determined to be unreasonable. If a hearing is requested by a person who may be affected by emissions from a grandfathered or electing EGF or a facility described in §116.911(f) of this title, and that request is reasonable, the commission shall hold a hearing.(c) At the applicant's expense, notice of a hearing on a draft EGFP must be published in the public notice section of one issue of a newspaper of general circulation in the municipality in which the grandfathered or electing EGF or a facility described in §116.911(f) of this title is located, or in the municipality nearest to the location of the grandfathered or electing EGF or a facility described in §116.911(f) of this title. The notice must be published at least 30 days before the date set for the hearing. The notice must include the following:(1) the time, place, and nature of the hearing;(2) a brief description of the purpose of the hearing; and(3) the name and phone number of the commission office to be contacted to verify that a hearing will be held.(d) Any person, including the applicant, may submit oral or written statements and data concerning the draft EGFP.(1) Reasonable time limits may be set for oral statements, and the submission of statements in writing may be required.(2) The period for submitting written comments is automatically extended to the close of any hearing.(3) At the hearing, the period for submitting written comments may be extended beyond the close of the hearing.(e) A tape recording or written transcript of the hearing must be made available to the public.(f) Any person, including the applicant, who believes that any condition of the draft EGFP is inappropriate or that the preliminary decision to issue or deny the permit is inappropriate, shall raise all issues and submit all arguments supporting that position by the end of the public comment period.(g) Any supporting materials for comments submitted under subsection (f) of this section must be included in full and may not be incorporated by reference, unless the materials are one of the following:(1) already part of the administrative record in the same proceedings;(2) state or federal statutes and regulations;(3) EPA documents of general applicability; or(4) other generally available reference materials.(h) The commission shall keep a record of all comments received and issues raised in the hearing. This record is available to the public.(i) The draft EGFP may be changed based on comments pertaining to whether the permit provides for compliance with the requirements of this subchapter.(j) The commission shall respond to comments consistent with §116.922 of this title (relating to Notice of Final Action).</content><note type="source"><p>Source Note: The provisions of this §116.921 adopted to be effective January 11, 2000, 25 TexReg 185; amended to be effective June 12, 2002, 27 TexReg 4954.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.922"><num value="116.922">§116.922</num><heading>Notice of Final Action</heading><content>(a) After the public comment period or the conclusion of any notice and comment hearing, the commission shall send notice by first-class mail of the final action on the application to any person who commented during the public comment period or at the hearing, and to the applicant.(b) The notice must include the following:(1) the response to any comments submitted during the public comment period;(2) identification of any change in the conditions of the draft electric generating facility permit and the reasons for the change;(3) a statement that any person affected by the decision of the commission may petition for rehearing under the appropriate procedure in Chapter 50 of this title (relating to Action on Applications and Other Authorizations) and may seek judicial review under TCAA, §382.032 (relating to Appeal of Commission Action).</content><note type="source"><p>Source Note: The provisions of this §116.922 adopted to be effective January 11, 2000, 25 TexReg 185.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.926"><num value="116.926">§116.926</num><heading>Permit Fee</heading><content>(a) Fees required. Any person who applies for a permit in accordance with §116.917 of this title (relating to Electric Generating Facility Permit Application for Certain Grandfathered Coal-Fired Electric Generating Facilities and Certain Grandfathered Facilities Located at Electric Generating Facility Sites) must remit a fee of $450 at the time of application for such permit. If the facility is a small business stationary source facility, as defined in TCAA, §382.0365(h), the fee shall be $100.(b) Payment of fees. All permit fees must be remitted in the form of a check or money order made payable to the Texas Natural Resource Conservation Commission and delivered to Texas Natural Resource Conservation Commission, P. O. Box 13088, MC 214, Austin, Texas 78711-3088. Required fees must be received before the commission will begin examination of the application.(c) Return of fees. Fees must be paid at the time an application for a permit is submitted in accordance with this subchapter. If the applicant withdraws the application prior to issuance of the permit, one-half of the fee will be refunded, except that the entire fee will be refunded for any such application for which a permit by rule in accordance with Chapter 106 of this title (relating to Permits by Rule) is allowed. No fees will be refunded after a deficient application has been voided, denied, or after a permit has been issued by the commission.</content><note type="source"><p>Source Note: The provisions of this §116.926 adopted to be effective June 12, 2002, 27 TexReg 4954.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.928"><num value="116.928">§116.928</num><heading>Delegation</heading><content>The commission delegates to the executive director the authority to take any action on a permit issued under this subchapter. Section 116.922(b)(3) of this title (relating to Notice of Final Action) provides notification that any person affected by a decision of the commission may petition for rehearing. Notwithstanding §116.922(b)(3) of this title, any Notice of Final Action sent regarding a permit action under this subchapter will state that a person affected by a decision of the executive director may file a motion to overturn the executive director's decision under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) rather than a petition for rehearing.</content><note type="source"><p>Source Note: The provisions of this §116.928 adopted to be effective June 12, 2002, 27 TexReg 4954.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.930"><num value="116.930">§116.930</num><heading>Amendments and Alterations of Permits Issued Under this Subchapter</heading><content>The owner or operator planning a modification of a facility permitted under this subchapter must comply with Subchapter B of this chapter (relating to New Source Review Permits) before work is begun on the construction of the modification. Amendments and alterations for permits issued in accordance with this subchapter are subject to the requirements of Subchapter B of this chapter.</content><note type="source"><p>Source Note: The provisions of this §116.930 adopted to be effective January 11, 2000, 25 TexReg 185; amended to be effective June 12, 2002, 27 TexReg 4954.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scI/s116.931"><num value="116.931">§116.931</num><heading>Renewal</heading><content>Electric generating facility permits shall be renewed in accordance with Chapter 116, Subchapter D of this title (relating to Permit Renewals).</content><note type="source"><p>Source Note: The provisions of this §116.931 adopted to be effective January 11, 2000, 25 TexReg 185.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c116/scJ"><num value="J">SUBCHAPTER J</num><heading>MULTIPLE PLANT PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c116/scJ/s116.1010"><num value="116.1010">§116.1010</num><heading>Applicability</heading><content>(a) A person may obtain a multiple plant permit for existing facilities subject to Texas Clean Air Act (TCAA), §382.0518 or §382.0519 at multiple plant sites that are owned or operated by the same person or persons under common control if:(1) the aggregate rate of emission of air contaminants to be authorized under the permit does not exceed the total of the rates authorized in the existing permits (for previously permitted facilities); and(2) the emissions from the facilities will not contravene the intent of the TCAA, including protection of the public's health and physical property.(b) A permit issued under this subchapter may not authorize emissions from any facility that exceeds that facility's highest historic annual rate, if the facility is grandfathered, or the levels authorized in the facility's most recent permit, if the facility is permitted. The highest historic annual rate would be determined by either of the following:(1) using data that shows the maximum annual emission rate at which the emission unit actually operated and emitted prior to September 1, 1971 for 12 consecutive months, including any increases authorized by a permit by rule; or(2) using data related to emissions (e.g., production, fuel firing, throughput, sulfur content, etc.) as appropriate, which are selected by the applicant and agreed upon by the executive director, to reasonably approximate the actual annual emission rate from any operational year.(c) Emissions control equipment previously installed at a facility permitted under this chapter may not be removed or disabled unless the action is undertaken to maintain or upgrade the control equipment or to otherwise reduce the impact of emissions authorized by the commission.</content><note type="source"><p>Source Note: The provisions of this §116.1010 adopted to be effective September 4, 2000, 25 TexReg 8668; amended to be effective July 1, 2021, 46 TexReg 3924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scJ/s116.1011"><num value="116.1011">§116.1011</num><heading>Multiple Plant Permit Application</heading><content>(a) An application for a multiple plant permit (MPP) must include a completed application form. The application form must be signed by an authorized representative of the applicant. The form specifies additional support information which must be provided before the application is deemed complete. In order to be granted an MPP, the owner or operator of the existing facilities shall submit the following information to the executive director:(1) information to demonstrate compliance with applicable conditions of §116.711 of this title (relating to Flexible Permit Application);(2) for permitted facilities, the relevant permit; and(3) relevant information, indicating that the emissions from the facilities will not contravene the intent of the Texas Clean Air Act, including protection of the public's health and physical property.(b) Grandfathered facilities which do not apply for an MPP prior to September 1, 2001 must first obtain a permit under Subchapter B of this chapter (relating to New Source Review Permits) before they are eligible to be included in an MPP.</content><note type="source"><p>Source Note: The provisions of this §116.1011 adopted to be effective September 4, 2000, 25 TexReg 8668; amended to be effective August 15, 2002, 27 TexReg 7140; amended to be effective July 1, 2021, 46 TexReg 3924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scJ/s116.1014"><num value="116.1014">§116.1014</num><heading>Application Review Schedule</heading><content>The multiple plant permit application will be reviewed by the commission in accordance with §116.114 of this title (relating to Application Review Schedule).</content><note type="source"><p>Source Note: The provisions of this §116.1014 adopted to be effective September 4, 2000, 25 TexReg 8668.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scJ/s116.1015"><num value="116.1015">§116.1015</num><heading>General and Special Conditions</heading><content>(a) Multiple plant permits may contain general and special conditions, including special conditions which provide emission limitation for each facility and which specify the aggregate rate of emissions of air contaminants. The holders of a multiple plant permit shall comply with any and all such conditions.(b) Holders of multiple plant permits shall comply with §116.115 of this title (relating to General and Special Conditions), as applicable.</content><note type="source"><p>Source Note: The provisions of this §116.1015 adopted to be effective September 4, 2000, 25 TexReg 8668.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scJ/s116.1020"><num value="116.1020">§116.1020</num><heading>Modifications</heading><content>The owner or operator planning the modification of a facility permitted under a multiple plant permit must comply with Subchapter B of this chapter (relating to New Source Review Permits) before work is begun on the construction of the modification.</content><note type="source"><p>Source Note: The provisions of this §116.1020 adopted to be effective September 4, 2000, 25 TexReg 8668.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scJ/s116.1021"><num value="116.1021">§116.1021</num><heading>Amendments and Alterations</heading><content>(a) Multiple plant permit amendments. All representations in an application for a multiple plant permit, as well as any general and special conditions contained in the permit, become conditions upon which the subsequent multiple plant permit is issued. It shall be unlawful for any person to vary from such representation or condition if the change is a modification, a change in the method of control of emissions, or will result in an increase in emissions, unless application is made to the commission to amend the multiple plant permit in that regard and such amendment is approved by the commission. Applications to amend a multiple plant permit shall be submitted with a completed Form PI-1 and are subject to the requirements of §116.116(b) of this title (relating to Changes to Facilities).(b) Multiple plant permit alterations.(1) A multiple plant permit alteration is for any variation from a representation in a multiple plant permit application or a general or special condition of a multiple plant permit that does not require a multiple plant permit amendment.(2) All multiple plant permit alterations which may involve a change in a general or special condition contained in the permit, or affect control equipment performance must receive prior approval by the executive director. The executive director shall be notified in writing of all other multiple plant permit alterations within ten days of implementing the change, unless the permit provides for a different method of notification. Any multiple plant permit alteration request or notification shall include information sufficient to demonstrate that the change does not interfere with the owner or operator's previous demonstrations of compliance with the requirements of §116.1011 of this title, including the protection of public health and welfare. The appropriate commission regional office and any local air pollution program having jurisdiction shall be provided copies of all multiple plant permit alteration documents.(c) Permit by rule under Chapter 106 of this title (relating to Permits by Rule) in lieu of permit amendment or alteration.(1) Notwithstanding subsections (a) or (b) of this section, no permit amendment or alteration is required if the changes to the permitted facility qualify for a permit by rule under Chapter 106 of this title unless prohibited by permit provision as provided in §116.1015 of this title (relating to General and Special Conditions). All such changes to a permitted facility authorized by Chapter 106 of this title, shall be incorporated into that facility's permit at such time as the permit is amended or renewed.(2) Emission increases authorized by Chapter 106 of this title, at an existing facility covered by a multiple plant permit shall not cause an exceedance of the aggregate emissions cap or individual emission limitation.</content><note type="source"><p>Source Note: The provisions of this §116.1021 adopted to be effective September 4, 2000, 25 TexReg 8668.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scJ/s116.1040"><num value="116.1040">§116.1040</num><heading>Multiple Plant Permit Public Notice and Public Participation</heading><content>(a) An application for a multiple plant permit (MPP) that is filed on or after September 1, 2001, is subject to the same procedural requirements of Chapters 39, 50, 55, and 80 of this title (relating to Public Notice; Action on Applications and Other Authorizations; Requests for Reconsideration and Contested Case Hearings, Public Comment; and Contested Case Hearings) that apply to applications processed under Subchapter B of this chapter (relating to New Source Review Permits), except that any required newspaper notice shall be published in accordance with subsection (b)(1)(A) of this section.(b) Applications for MPP initial issuance, amendment, or revocation that are filed before September 1, 2001, are not subject to Texas Government Code, Chapter 2001, and are subject to the notice and hearing process of TCAA, §382.05197, as provided in this subsection.(1) An applicant for an MPP shall comply with the same public notice requirements that apply to initial issuance of voluntary emission reduction permits and initial issuance of electric generating facility permits as specified in §39.403(d) of this title (relating to Applicability), except as provided by this section.(A) An applicant for an MPP shall publish notice of intent to obtain the permit as required under §39.603 of this title (relating to Newspaper Notice), except that:(i) the notice of a proposed MPP for existing facilities shall be published in one or more state-wide or regional newspapers that provide reasonable notice throughout the state; or(ii) if the MPP for existing facilities will be effective for only part of the state, the notice shall be published in a newspaper of general circulation in the area to be affected.(B) The notice shall include a statement that the persons identified in paragraph (2) of this subsection are entitled to request a notice and comment hearing from the commission.(C) The executive director may authorize an applicant for an MPP for an existing facility that constitutes or is part of a small business stationary source as defined in TCAA, §382.0365(h)(2) to provide notice using an alternative means if the executive director finds that the proposed method will result in equal or better communication with the public, considering the effectiveness of the notice in reaching potentially affected persons, the cost, and the consistency with federal requirements.(2) Any person who may be affected by emissions from a facility that is included in an MPP application under this subsection, or a member of the legislature from the general area in which the facility is located, may request the executive director to hold a notice and comment hearing on the MPP application. The public comment period shall end 30 days after the publication of Notice of Receipt of Application and Intent to Obtain Permit under §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit). Any notice and comment hearing request must be made in writing during the 30-day public comment period.(3) Any hearing for an MPP application under this subsection shall be conducted under the procedures in §116.1041 of this title (relating to Multiple Plant Permit Notice and Comment Hearings).(4) The executive director's response to public comments and the notice of decision on whether to issue or deny an MPP application under this subsection will be conducted under the procedures in §116.1042 of this title (relating to Notice of Final Action).(5) A person affected by a decision to issue or deny an MPP application under this subsection may seek review under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision), and may seek judicial review under TCAA, §382.032, relating to Appeal of Commission Action.(c) For applications for renewal of an MPP, any required newspaper notice shall be published in accordance with subsection (b)(1)(A) of this section.</content><note type="source"><p>Source Note: The provisions of this §116.1040 adopted to be effective September 4, 2000, 25 TexReg 8668; amended to be effective August 15, 2002, 27 TexReg 7140.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scJ/s116.1041"><num value="116.1041">§116.1041</num><heading>Multiple Plant Permit Notice and Comment Hearings</heading><content>(a) The notice and comment hearing requirements apply only to an application filed before September 1, 2001, for a multiple plant permit (MPP) initial issuance, amendment, or revocation.(b) The executive director shall decide whether to hold a hearing. The executive director is not required to hold a hearing if it determines that the basis of the request by a person who may be affected by emissions from a facility that is included in an MPP application is unreasonable. If a hearing is requested by a person who may be affected by emissions from a facility that is included in an MPP application, and that request is reasonable, the executive director will hold a hearing.(c) At the applicant's expense, notice of a hearing on a draft permit must be published in the public notice section of one issue of a newspaper of general circulation in the municipality in which the facility that is included in an MPP application is located, or in the municipality nearest to the location of the facility. The notice must be published at least 30 days before the date set for the hearing. The notice must include the following:(1) the time, place, and nature of the hearing;(2) a brief description of the purpose of the hearing; and(3) the name and phone number of the commission office to be contacted to verify that a hearing will be held.(d) Any person, including the applicant, may submit oral or written statements and data concerning the draft permit.(1) The executive director may set reasonable time limits for oral statements, and may require the submission of statements in writing.(2) The period for submitting written comments is automatically extended to the close of any hearing.(3) At the hearing, the executive director may extend the period for submitting written comments beyond the close of the hearing.(e) The agency will make an audio recording or written transcript of the hearing available to the public.(f) Any person, including the applicant, who believes that any condition of the draft permit is inappropriate or that the preliminary decision to issue or deny the permit is inappropriate, shall raise all issues and submit all arguments supporting that position by the end of the public comment period.(g) Any supporting materials for comments submitted under subsection (f) of this section must be included in full and may not be incorporated by reference, unless the materials are one of the following:(1) already part of the administrative record in the same proceedings;(2) federal or state statutes, regulations, and rules;(3) EPA documents of general applicability; or(4) other generally available reference materials.(h) The executive director will keep a record of all comments received and issues raised in the hearing. This record will be available to the public.(i) The draft permit may be changed based on comments relating to whether the draft permit complies with the requirements of this subchapter.(j) The executive director will respond to comments consistent with §116.1042 of this title (relating to Notice of Final Action).</content><note type="source"><p>Source Note: The provisions of this §116.1041 adopted to be effective September 4, 2000, 25 TexReg 8668; amended to be effective August 15, 2002, 27 TexReg 7140.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scJ/s116.1042"><num value="116.1042">§116.1042</num><heading>Notice of Final Action</heading><content>(a) After the public comment period or the conclusion of any notice and comment hearing, notice will be sent by first class mail of the final action on the application for initial issuance, amendment, or revocation of a multiple plant permit that was filed before September 1, 2001. The notice will include the information required by §39.420(a)(1) - (2) of this title (relating to Transmittal of the Executive Director's Response to Comments and Decision) and will be sent to any person who commented during the public comment period or at the hearing, and to the recipients specified in §39.420(b)(1) - (3) and (5) - (6) of this title.(b) The notice must include the following:(1) the response to any comments submitted during the public comment period;(2) identification of any change in the conditions of the draft permit and the reasons for the change; and(3) a statement that any person affected by the decision of the executive director may seek review under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision), and may seek judicial review under TCAA, §382.032, Appeal of Commission Action.</content><note type="source"><p>Source Note: The provisions of this §116.1042 adopted to be effective August 15, 2002, 27 TexReg 7140.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scJ/s116.1050"><num value="116.1050">§116.1050</num><heading>Multiple Plant Permit Application Fee</heading><content>Any person who applies for a multiple plant permit (MPP) shall remit, at the time of application for such permit, a fee of $900.(1) Fees will not be charged for MPP alterations, changes of ownership, or changes of location of permitted facilities.(2) Fees must be paid at the time an application for a permit is submitted. No fees will be refunded after a deficient application has been voided.</content><note type="source"><p>Source Note: The provisions of this §116.1050 adopted to be effective September 4, 2000, 25 TexReg 8668; amended to be effective August 15, 2002, 27 TexReg 7140; amended to be effective October 20, 2002, 27 TexReg 9616.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scJ/s116.1060"><num value="116.1060">§116.1060</num><heading>Multiple Plant Permit Renewal</heading><content>Multiple plant permits shall be renewed in accordance with Subchapter D of this chapter (relating to Permit Renewals).</content><note type="source"><p>Source Note: The provisions of this §116.1060 adopted to be effective September 4, 2000, 25 TexReg 8668.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scJ/s116.1070"><num value="116.1070">§116.1070</num><heading>Delegation</heading><content>The commission may delegate to the executive director any authority in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §116.1070 adopted to be effective September 4, 2000, 25 TexReg 8668.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c116/scK"><num value="K">SUBCHAPTER K</num><heading>EMERGENCY ORDERS</heading><section identifier="/us/state/tx/tac/t30/p1/c116/scK/s116.1200"><num value="116.1200">§116.1200</num><heading>Applicability</heading><content>The owner or operator of a facility may apply to the commission or the executive director for an emergency order under Texas Water Code, §5.515, and Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions), to authorize immediate action for the addition, replacement, or repair of facilities or control equipment, and authorizing associated emissions of air contaminants, whenever a catastrophe necessitates such construction and emissions otherwise precluded under the Texas Clean Air Act.</content><note type="source"><p>Source Note: The provisions of this §116.1200 adopted to be effective February 1, 2006, 31 TexReg 515.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c116/scL"><num value="L">SUBCHAPTER L</num><heading>PERMITS FOR SPECIFIC DESIGNATED FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c116/scL/s116.1400"><num value="116.1400">§116.1400</num><heading>Purpose</heading><content>The purpose of this subchapter is to establish, by rule, reasonably streamlined procedures for the commission to issue authorization for projects within the commission's jurisdiction under Texas Health and Safety Code, Chapters 361 and 382 and Texas Water Code, Chapters 5 and 26.</content><note type="source"><p>Source Note: The provisions of this §116.1400 adopted to be effective March 29, 2006, 31 TexReg 2492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scL/s116.1402"><num value="116.1402">§116.1402</num><heading>Applicability</heading><content>(a) This subchapter applies to applications for authorization required to construct and operate a component of the FutureGen project, and to applications to authorize modification of a component of the FutureGen Project.(b) This subchapter does not apply to an application for a permit to construct or modify a new or existing coal-fired electric generating facility that will use pulverized or supercritical pulverized coal.(c) This subchapter does not apply to any applications or other requests for authorization submitted after January 1, 2018.</content><note type="source"><p>Source Note: The provisions of this §116.1402 adopted to be effective March 29, 2006, 31 TexReg 2492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scL/s116.1404"><num value="116.1404">§116.1404</num><heading>Permit Required</heading><content>Any person who plans to construct or modify a component of a project as designated in §116.1402 of this title (relating to Applicability) that may emit air contaminants into the air of this state must obtain a permit under this chapter or qualify for a permit by rule under Chapter 106 of this title (relating to Permits by Rule).</content><note type="source"><p>Source Note: The provisions of this §116.1404 adopted to be effective March 29, 2006, 31 TexReg 2492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scL/s116.1406"><num value="116.1406">§116.1406</num><heading>Compliance History</heading><content>For all permit reviews under this subchapter, compliance history reviews are required under Chapter 60 of this title (relating to Compliance History).</content><note type="source"><p>Source Note: The provisions of this §116.1406 adopted to be effective March 29, 2006, 31 TexReg 2492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scL/s116.1408"><num value="116.1408">§116.1408</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.(1) Clean coal project--The installation of one or more components of the coal-based integrated sequestration and hydrogen research project to be built in partnership with the United States Department of Energy, commonly referred to as the FutureGen project. The term includes the construction or modification of a facility for electric generation, industrial production, or the production of steam as a byproduct of coal gasification to the extent that the facility installs one or more components of the FutureGen project.(2) Coal--All forms of coal, including lignite.(3) Component of the FutureGen project--A process, technology, or piece of equipment that:(A) is designed to employ coal gasification technology to generate electricity, hydrogen, or steam in a manner that meets the FutureGen project profile;(B) is designed to employ fuel cells to generate electricity in a manner that meets the FutureGen project profile;(C) is designed to employ a hydrogen-fueled turbine to generate electricity where the hydrogen is derived from coal in a manner that meets the FutureGen project profile;(D) is designed to demonstrate the efficacy at an electric generation or industrial production facility of a carbon dioxide capture technology in a manner that meets the FutureGen project profile;(E) is designed to sequester a portion of the carbon dioxide captured from an electric generation or industrial production facility in a manner that meets the FutureGen project profile in conjunction with appropriate remediation plans and appropriate techniques for reservoir characterization, injection control, and monitoring;(F) is designed to sequester carbon dioxide as part of enhanced oil recovery in a manner that meets the FutureGen project profile in conjunction with appropriate techniques for reservoir characterization, injection control, and monitoring;(G) qualifies for federal funds designated for the FutureGen project;(H) is required to perform the sampling, analysis, or research necessary to submit a proposal to the United States Department of Energy for the FutureGen project; or(I) is required in a final United States Department of Energy request for proposals for the FutureGen project or is described in a final United States Department of Energy request for proposals as a desirable element to be considered in the awarding of the project.(4) Designated project--Any project subject to the jurisdiction of the commission and designated by the legislature as subject to the alternate public notice requirements in this subchapter.(5) FutureGen project--A common reference to the coal-based integrated sequestration and hydrogen project to be built in partnership with the United States Department of Energy.(6) FutureGen project profile--A standard or standards relevant to a component of the FutureGen project, as provided in a final or amended United States Department of Energy request for proposals or contract.(7) Hearing--A notice and comment hearing and not a contested case hearing.</content><note type="source"><p>Source Note: The provisions of this §116.1408 adopted to be effective March 29, 2006, 31 TexReg 2492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scL/s116.1410"><num value="116.1410">§116.1410</num><heading>Emissions Profile for FutureGen Projects</heading><content>If the United States Department of Energy does not specify an emissions profile for the FutureGen project, emissions of air contaminants from a component of a FutureGen project shall equal no more than:(1) 1% of the average sulphur content of the coal or coals used for the generation of electricity at the component;(2) 10% of the average mercury content of the coal or coals used for the generation of electricity at the component;(3) 0.05 pounds of nitrogen oxides per million British thermal units (MMBTU) of energy produced at the component; and(4) 0.005 pounds of particulate matter per MMBTU of energy produced at the component.</content><note type="source"><p>Source Note: The provisions of this §116.1410 adopted to be effective March 29, 2006, 31 TexReg 2492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scL/s116.1414"><num value="116.1414">§116.1414</num><heading>Applications for Facilities that are Components of a Designated Project</heading><content>Any application submitted under §116.1404 of this title (relating to Permit Required) must include a completed Form PI-1, General Application for Air Preconstruction Permits and Amendments. The Form PI-1 must be signed by an authorized representative of the applicant. The Form PI-1 specifies additional support information that must be provided before the application is deemed complete. In order to be granted a permit, the applicant for a project as designated in §116.1402(a) of this title (relating to Applicability) shall submit information to the commission that demonstrates that all of the following are met.(1) Protection of public health and welfare. The emissions from the facility will comply with all applicable rules and regulations of the commission and with the intent of Texas Health and Safety Code, Chapter 382, the Texas Clean Air Act (TCAA), including protection of the health and physical property of the people.(2) Measurement of emissions. The permit will have provisions for measuring the emission of significant air contaminants as determined by the commission. These provisions may include the installation of sampling ports on exhaust stacks and construction of sampling platforms in accordance with guidelines in the "Texas Natural Resource Conservation Commission Sampling Procedures Manual," portable analyzers, or emissions calculations if a known process variable is monitored.(3) New Source Performance Standards (NSPS). The emissions from each affected facility as defined in 40 Code of Federal Regulations (CFR) Part 60 will meet the requirements of any applicable NSPS as listed under 40 CFR Part 60, promulgated by the United States Environmental Protection Agency (EPA) under the authority granted under Federal Clean Air Act (FCAA), §111, as amended.(4) National Emission Standards for Hazardous Air Pollutants (NESHAPs). The emissions from each facility as defined in 40 CFR Part 61 will meet the requirements of any applicable NESHAPs, as listed under 40 CFR Part 61, promulgated by EPA under the authority granted under FCAA, §112, as amended.(5) NESHAPs for source categories. The emissions from each affected facility shall meet the requirements of any applicable maximum achievable control technology standard as listed under 40 CFR Part 63, promulgated by EPA under FCAA, §112, or as listed in Chapter 113, Subchapter C of this title (relating to National Emission Standards for Hazardous Air Pollutants for Source Categories (FCAA, §112, 40 CFR Part 63)).(6) Performance demonstration. The facility will achieve the performance specified in the permit application. The commission may require the applicant to submit additional engineering data after the permit has been issued in order to demonstrate further that the facility will achieve the performance specified in the permit. In addition, the commission may require initial compliance testing to determine ongoing compliance through engineering calculations based on measured process variables, parametric or predictive monitoring, stack monitoring, or stack testing.(7) Nonattainment review. A facility in a nonattainment area shall comply with all applicable requirements under Subchapter B, Division 5 of this chapter (relating to Nonattainment Review).(8) Prevention of significant deterioration review. A facility in an attainment area shall comply with all applicable requirements under Subchapter B, Division 6 of this chapter (relating to Prevention of Significant Deterioration Review).(9) Air dispersion modeling or ambient monitoring. The commission may require computerized air dispersion modeling and/or ambient monitoring to determine the air quality impacts from the facility.(10) Federal standards of review for constructed or reconstructed major sources of hazardous air pollutants. If the facility is an affected source as defined in §116.15(1) of this title (relating to Section 112(g) Definitions), the affected source shall comply with all applicable requirements under Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)).(11) Application content. In addition to any other requirements of this subchapter, the applicant shall:(A) identify each facility to be included in the permit;(B) identify the air contaminants emitted; and(C) provide emission rate calculations.(12) Best available control technology (BACT). The proposed facility will utilize BACT, with consideration given to the technical practicability and economic reasonableness of reducing or eliminating the emissions from the facility.</content><note type="source"><p>Source Note: The provisions of this §116.1414 adopted to be effective March 29, 2006, 31 TexReg 2492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scL/s116.1416"><num value="116.1416">§116.1416</num><heading>Public Notice</heading><content>(a) The executive director shall direct the applicant to publish a notice of draft permit and preliminary decision, at the applicant's expense, in the public notice section of one issue of a newspaper of general circulation in the municipality in which the site or proposed site is located, or in the municipality nearest to the location of the site or proposed site. The executive director shall direct the applicant to make a copy of the application and draft permit available for review and copying at a public place in the county in which the site is located or proposed to be located. The notice shall contain the following information:(1) the permit application number;(2) the applicant's or permit holder's name, address, and telephone number and a description of the manner in which a person may contact the applicant or permit holder for further information;(3) a description of the location of the site or proposed location of the site;(4) a description of the activity or activities involved in the permit application;(5) the location and availability of the following:(A) the complete permit application;(B) the draft permit;(C) all other relevant supporting materials in the public files of the agency;(6) a description of the comment procedures, including the duration of the public notice comment period and procedures to request a hearing printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice;(7) a statement that a person who may be affected by the emission of air pollutants from the facility or facilities is entitled to request a notice and comment hearing, under §116.1418 of this title (relating to Public Participation), printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice;(8) a description of the procedure by which a person may be placed on a mailing list in order to receive additional information about the application or draft permit;(9) if applicable, the time and location of any public meeting; and(10) the name, address, and phone number of the commission to be contacted for further information.(b) The applicant shall submit a copy of the public notice and date of publication to the executive director and any local air pollution control agencies having jurisdiction over the site.(c) The applicant shall submit a statement to the executive director certifying that the sign required by subsection (e) of this section has been posted consistent with the provisions of that subsection.(d) The executive director shall make available for public inspection the draft permit and the complete application throughout the comment period during business hours at the commission's central office and at the appropriate commission regional office where the site is located.(e) At the applicant's expense, a sign shall be placed at the site declaring the filing of an application for a permit and stating the manner in which the executive director may be contacted for further information.(1) The sign shall be provided by the applicant and shall substantially meet the following requirements.(A) The sign shall consist of dark lettering on a white background and shall be not smaller than 18 inches by 28 inches and all lettering shall be no less than 1-1/2 inches in size and block printed capital lettering.(B) The sign shall be headed by the words "PROPOSED AIR QUALITY PERMIT."(C) The sign shall include the words "APPLICATION NO." and the number of the permit application.(D) The sign shall include the words "for further information contact."(E) The sign shall include the words "TEXAS COMMISSION ON ENVIRONMENTAL QUALITY," and the address of the appropriate commission regional office.(F) The sign shall include the phone number of the appropriate commission regional office.(G) The sign shall include the name of the company applying for the permit.(2) The sign shall be in place by the date of publication of the newspaper notice and shall remain in place and legible throughout the period of public comment.(3) The sign placed at the site shall be located at or near the site's main entrance, provided that the sign is legible from the public street. If the sign would not be legible from the public street, then the sign shall be placed within ten feet of a property line paralleling a public street.(A) The executive director may approve variations, if the applicant has demonstrated that it is not practical to comply with the specific sign-posting requirements(B) Alternative sign-posting plans proposed by the applicant must be at least as effective in providing notice to the public.(C) The executive director shall approve the variations before signs are posted.(f) The executive director shall receive public comment for 30 days after the notice of the public comment period is published. During the comment period, any person may submit written comments on the draft permit.(g) The draft permit may be changed based on comments.(h) Bilingual public notice requirements of this subsection are applicable when either the elementary school or the middle school located nearest to the facility or proposed facility provides a bilingual education program as required by Education Code, Chapter 29, Subchapter B, and 19 TAC §89.1205(a) (relating to Required Bilingual Education and English as a Second Language Programs), or if either school received a waiver for a required bilingual education program under the provisions of 19 TAC §89.1205(g). Schools not governed by the provisions of 19 TAC §89.1205 shall not be considered in determining applicability of the requirements of this section. Elementary or middle schools that offer English as a second language under 19 TAC §89.1205(d), and are not otherwise affected by 19 TAC §89.1205(a), will not have to meet the requirements of subsection (a) of this section. If the notices required by this section and §116.1418 of this title are combined, the combined notice is subject to the requirements of this section. Each affected facility shall meet the following requirements.(1) At the applicant's expense, an additional notice shall be published at least once in each alternate language in which the bilingual education program is taught. If the nearest elementary or middle school received a waiver for the requirements of 19 TAC §89.1205(a) under 19 TAC §89.1205(g), the notice shall be published in the alternate languages in which the bilingual education program would have been taught had the school not received a waiver for the bilingual education program.(2) Each notice under this subsection shall be published in a newspaper or publication that is published in the alternate language in which public notice is required.(3) The newspaper or publication must be of general circulation in the municipality or county in which the facility is located or proposed to be located.(4) The requirements of this section are waived for each language in which no publication exists, or if the publishers of all alternate language publications refuse to publish the notice.(5) Notice under this subsection shall only be required to be published within the United States.(6) If the alternate language publication is published less frequently than once a month, this notice requirement may be waived by the executive director on a case-by-case basis.(7) Each alternate language publication shall follow the requirements of this section not otherwise inconsistent with this subsection.(8) At the applicant's expense, an additional sign shall be posted at the site in each alternate language in which the bilingual education program is taught. If the nearest elementary or middle school received a waiver for the requirements of 19 TAC §89.1205(a) under 19 TAC §89.1205(g), the alternate language signs shall be posted in the alternate languages in which the bilingual education program would have been taught had the school not received a waiver for the bilingual education program.(9) The alternate language signs shall be posted adjacent to each English language sign required in public notice.(10) The alternate language signs shall meet all other requirements of this section.</content><note type="source"><p>Source Note: The provisions of this §116.1416 adopted to be effective March 29, 2006, 31 TexReg 2492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scL/s116.1418"><num value="116.1418">§116.1418</num><heading>Public Participation</heading><content>(a) With the exception of the permitting procedural requirements specified in any other chapter of this title, permits authorized under this subchapter are not subject to the requirements relating to a contested case hearing under Texas Health and Safety Code, Chapter 382; Texas Water Code; or Texas Government Code, Chapter 2001, Subchapters C - G. Permit applications under this chapter shall be subject to a notice and comment hearing as specified in subsections (b) - (n) of this section, as well as any applicable requirements in Chapters 39 and 55 of this title (relating to Public Notice and Requests for Reconsideration and Contested Case Hearings; Public Comment).(b) Any hearing regarding a permit will be conducted under the procedures in this section and not under the Administrative Procedure Act.(c) Any person who may be affected by emissions from a site regulated under this subchapter may request the executive director to hold a hearing on the draft permit. The request must be made during the 30-day public comment period.(d) The executive director shall decide whether to conduct a hearing. The executive director is not required to hold a hearing if the basis of the request by a person who may be affected by emissions from a site is determined to be unreasonable. If a hearing is requested by a person who may be affected by emissions from a site regulated under this subchapter, and that request is reasonable, the executive director shall conduct a hearing.(e) At the applicant's expense, notice of a hearing on a draft permit must be published in the public notice section of one issue of a newspaper of general circulation in the municipality in which the site or proposed site is located, or in the municipality nearest to the location of the site or proposed site. The notice must be published at least 30 days before the date of the hearing. The notice must include the following:(1) the time, place, and nature of the hearing;(2) a brief description of the purpose of the hearing; and(3) the name and phone number of the commission to be contacted to verify that a hearing will be held.(f) The applicant shall submit a copy of the notice of hearing and date of publication to the executive director and all local air pollution control agencies having jurisdiction in the county in which the site is located.(g) At the executive director's discretion, the hearing notice may be combined with the notice of the draft permit required by this subchapter.(h) Any person, including the applicant, may submit oral or written statements and data concerning the draft permit.(1) Reasonable time limits may be set for oral comments, and the submission of comments in writing may be required.(2) The period for submitting written comments is automatically extended to the close of any hearing.(3) At the hearing, the period for submitting written comments may be extended beyond the close of the hearing.(i) A tape recording or written transcript of the hearing must be made available to the public.(j) Any person, including the applicant, who believes that any condition of the draft permit is inappropriate or that the preliminary decision to issue or deny the permit is inappropriate, shall raise all reasonably ascertainable issues and submit all reasonably available arguments supporting that position by the end of the public comment period.(k) The executive director shall keep a record of all comments received and issues raised in the hearing. This record must be made available to the public.(l) The draft permit may be changed based on comments.(m) After the public comment period or the conclusion of any notice and comment hearing, the chief clerk of the commission shall send by first-class mail the executive director's decision, the executive director's response to any comments submitted during the comment period or at the public hearing specified in this section, and identification of any change in the condition of the draft permit and the reasons for the change to any person who commented during the public comment period or at the hearing, and to the applicant.(n) The commission shall use public meetings, informal conferences, or advisory committees to gather the opinions and advice of interested persons for all permits issued under this subchapter.(1) Any public meetings held in accordance with this subsection shall follow the notice and comment hearing procedures in subsection (a) - (m) of this section.(2) The executive director shall hold a public meeting:(A) on the request of a member of the legislature who represents the general area in which the facility is located or proposed to be located; or(B) if the executive director determines that there is substantial public interest in the proposed activity.</content><note type="source"><p>Source Note: The provisions of this §116.1418 adopted to be effective March 29, 2006, 31 TexReg 2492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scL/s116.1420"><num value="116.1420">§116.1420</num><heading>Permit Fee</heading><content>(a) Fees required. Any person who applies for a permit under this subchapter must remit a fee as provided in Chapter 116, Subchapter B, Division 4 of this title (relating to Permit Fees) at the time of application for such permit.(b) Payment of fees. All permit fees must be remitted in the form of a check or money order made payable to the "Texas Commission on Environmental Quality" and delivered to the Texas Commission on Environmental Quality, P.O. Box 13088, MC 214, Austin, Texas 78711-3088. Required fees must be received before the commission will begin examination of the application.</content><note type="source"><p>Source Note: The provisions of this §116.1420 adopted to be effective March 29, 2006, 31 TexReg 2492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scL/s116.1422"><num value="116.1422">§116.1422</num><heading>General and Special Conditions</heading><content>(a) Permits issued under this subchapter may contain general and special conditions. The holders of a permit under this subchapter shall comply with any and all such conditions.(b) Holders of permits issued under this subchapter shall comply with the following general conditions, regardless of whether they are specifically stated within the permit document.(1) Report of construction progress. The permit holder shall report start of construction, construction interruptions exceeding 45 days, and completion of construction. The report shall be given to the appropriate regional office of the commission not later than 15 working days after occurrence of the event.(2) Startup notification.(A) The permit holder shall notify the appropriate regional office of the commission, and any local air pollution control agencies having jurisdiction, prior to the commencement of operations of the facilities authorized by the permit. The notification must be made in such a manner as to allow a representative of the commission and a representative of any local air pollution control agency having jurisdiction to be present at the commencement of operations.(B) The permit holder shall provide a separate notification for the commencement of operations for each unit of phased construction, which may involve a series of units commencing operations at different times.(C) Prior to operation of the facilities authorized by the permit, the permit holder shall identify to the commission's Office of Permitting, Remediation, and Registration the source or sources of allowances to be utilized for compliance with Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program).(3) Sampling requirements.(A) If sampling is required, the permit holder shall contact the commission's Office of Compliance and Enforcement prior to sampling to obtain the proper data forms and procedures.(B) All sampling and testing procedures must be approved by the executive director and coordinated with the appropriate regional office of the commission.(C) The permit holder is also responsible for providing sampling facilities and conducting the sampling operations, or contracting with an independent sampling consultant.(4) Equivalency of methods. The permit holder must demonstrate or otherwise justify the equivalency of emission control methods, sampling or other emission testing methods, and monitoring methods proposed as alternatives to methods indicated in the conditions of the permit. Alternative methods shall be applied for in writing and must be reviewed and approved by the executive director prior to using these methods in fulfilling any requirements of the permit.(5) Recordkeeping. The permit holder shall:(A) maintain a copy of the permit along with records containing the information and data sufficient to demonstrate compliance with the permit, including production records and operating hours;(B) keep all required records in a file at the facility site. If, however, the facility site normally operates unattended, records must be maintained at an office within Texas having day-to-day operational control of the facility site;(C) make the records available at the request of the executive director or any local air pollution control agency having jurisdiction over the site. Upon request, the commission shall make any such records of compliance available to the public in a timely manner;(D) comply with any additional recordkeeping requirements specified in special conditions attached to the permit;(E) retain information in the file for at least two years following the date that the information or data is obtained; and(F) for persons certifying and registering a federally enforceable emission limitation in accordance with §116.611 of this title (relating to Registration to Use a Standard Permit), retain all records demonstrating compliance for at least five years.(6) Maximum allowable emission rates. The total emissions of air contaminants from any of the sources of emissions must not exceed the values stated on the table attached to the permit entitled "Emission Sources--Maximum Allowable Emission Rates."(7) Maintenance of emission control. The permitted facilities shall not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. The permit holder shall provide notification for emissions events and maintenance in accordance with Chapter 101, Subchapter F of this title (relating to Emissions Events and Scheduled Maintenance, Startup, and Shutdown Activities).(8) Compliance with rules.(A) Acceptance of a permit by an applicant constitutes an acknowledgment and agreement that the permit holder will comply with all rules, regulations, and orders of the commission issued in conformity with Texas Health and Safety Code, Chapter 382, Texas Clean Air Act, and the conditions precedent to the granting of the permit.(B) If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition shall govern and be the standard by which compliance shall be demonstrated.(C) Acceptance includes consent of the executive director to the entrance of commission employees and agents into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the permit.(c) Special conditions. The holders of permits issued under this subchapter shall comply with all special conditions contained in the permit document.(1) Special conditions may be attached to a permit that are more restrictive than the requirements of this title.(2) Special conditions for written approval.(A) The executive director may require as a special condition that the permit holder obtain written approval before constructing a source under:(i) a standard permit in accordance with Subchapter F of this chapter (relating to Standard Permits); or(ii) a permit by rule in accordance with Chapter 106 of this title (relating to Permits by Rule).(B) Written approval may be required if the executive director specifically finds that an increase of a particular pollutant could either:(i) result in a significant impact on the air environment; or(ii) cause the facility to become subject to review in accordance with:(I) Subchapter C of this chapter (relating to Hazardous Air Pollutants: Regulations Governing Constructed or Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)); or(II) the provisions in Subchapter B, Divisions 5 and 6 of this chapter (relating to Nonattainment Review and Prevention of Significant Deterioration Review).</content><note type="source"><p>Source Note: The provisions of this §116.1422 adopted to be effective March 29, 2006, 31 TexReg 2492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scL/s116.1424"><num value="116.1424">§116.1424</num><heading>Amendments and Alterations of Permits Issued Under This Subchapter</heading><content>The owner or operator planning the modification of a facility permitted under this subchapter must comply with the requirements of Subchapter B of this chapter (relating to New Source Review Permits) before work begins on the construction of the modification. Amendments and alterations for permits issued under this subchapter are subject to the requirements of Subchapter B of this chapter, except that the public notice and public participation requirements of this subchapter shall apply instead of any public notification or public comment procedures required by Subchapter B of this chapter.</content><note type="source"><p>Source Note: The provisions of this §116.1424 adopted to be effective March 29, 2006, 31 TexReg 2492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scL/s116.1426"><num value="116.1426">§116.1426</num><heading>Renewal of Permits Issued Under This Subchapter</heading><content>Permits issued under this subchapter shall be renewed in accordance with the requirements of Subchapter D of this chapter (relating to Permit Renewals).</content><note type="source"><p>Source Note: The provisions of this §116.1426 adopted to be effective March 29, 2006, 31 TexReg 2492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scL/s116.1428"><num value="116.1428">§116.1428</num><heading>Delegation</heading><content>The commission delegates to the executive director the authority to take any action on a permit issued under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §116.1428 adopted to be effective March 29, 2006, 31 TexReg 2492.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c116/scM"><num value="M">SUBCHAPTER M</num><heading>BEST AVAILABLE RETROFIT TECHNOLOGY (BART)</heading><section identifier="/us/state/tx/tac/t30/p1/c116/scM/s116.1500"><num value="116.1500">§116.1500</num><heading>Definitions</heading><content>The following terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise. For terms not defined in this section, the definitions contained in 40 Code of Federal Regulations (CFR) §51.301, as effective August 30, 1999, are incorporated by reference.(1) Best available retrofit technology (BART)-eligible source--Any emissions units that comprise any of the following stationary sources of air pollutants, including any reconstructed source, that were not in operation prior to August 7, 1962, and were in existence on August 7, 1977, and collectively have the potential to emit 250 tons per year (including fugitive emissions, to the extent quantifiable) of any visibility-impairing air pollutant:(A) fossil fuel-fired steam electric plants of more than 250 million British thermal units (BTU) per hour heat input;(B) coal-cleaning plants (thermal dryers);(C) kraft pulp mills;(D) portland cement plants;(E) primary zinc smelters;(F) iron and steel mill plants;(G) primary aluminum ore reduction plants;(H) primary copper smelters;(I) municipal incinerators capable of charging more than 250 tons of refuse per day;(J) hydrofluoric, sulfuric, and nitric acid plants;(K) petroleum refineries;(L) lime plants;(M) phosphate rock processing plants;(N) coke oven batteries;(O) sulfur recovery plants;(P) carbon black plants (furnace process);(Q) primary lead smelters;(R) fuel conversion plants;(S) sintering plants;(T) secondary metal production facilities;(U) chemical process plants;(V) fossil fuel-fired boilers of more than 250 million BTUs per hour heat input;(W) petroleum storage and transfer facilities with capacity exceeding 300,000 barrels;(X) taconite ore processing facilities;(Y) glass fiber processing plants; and(Z) charcoal production facilities.(2) Visibility-impairing air pollutant--Any of the following: nitrogen oxides, sulfur dioxide, or particulate matter.</content><note type="source"><p>Source Note: The provisions of this §116.1500 adopted to be effective February 1, 2007, 32 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scM/s116.1510"><num value="116.1510">§116.1510</num><heading>Applicability and Exemption Requirements</heading><content>(a) The requirements of this subchapter apply to best available retrofit technology (BART)-eligible sources as defined in §116.1500 of this title (relating to Definitions). (b) The owner or operator of a BART-eligible source may demonstrate, using a model and modeling guidelines approved by the executive director, that the source does not contribute to visibility impairment at a Class I area. A BART-eligible source that does not contribute to visibility impairment at any Class I area is not subject to the requirements of §116.1520 or §116.1530 of this title (relating to Best Available Retrofit Technology (BART) Analysis and Best Available Retrofit Technology (BART) Control Implementation). A source is considered to not contribute to visibility impairment if, as demonstrated by modeling performed by the executive director or performed in accordance with the guidelines approved by the executive director, it causes a visibility impairment of less than 0.5 deciviews at all Class I areas. The modeling demonstration must be submitted under seal of a Texas licensed professional engineer and must be received by the commission's Air Permits Division no later than April 30, 2007. (c) The following BART-eligible sources are not subject to the requirements of §116.1520 or §116.1530 of this title for the indicated pollutant(s). Owners or operators claiming exemption under this subsection shall maintain records sufficient to demonstrate compliance with the exemption criteria, and shall make such records available upon request of personnel from the commission or any local air pollution control agency having jurisdiction. (1) Any BART-eligible source that has the potential to emit less than 500 tons per year of combined nitrogen oxides (NO x ) and sulfur dioxide (SO2) and that is located more than 50 kilometers from any Class I area is not subject to BART for NOx and SO2. (2) Any BART-eligible source that has the potential to emit less than 1,000 tons per year of combined NOx and SO2 and that is located more than 100 kilometers from any Class I area is not subject to BART for NO x and SO2. (3) Any BART-eligible source that has the potential to emit less than 40 tons per year of NOx or 40 tons per year of SO2 is not subject to BART for NOx or SO2, respectively. Any BART-eligible source that has the potential to emit less than 15 tons per year of particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10 ) is not subject to BART for PM10 . (d) BART-eligible electric generating units participating in the Clean Air Interstate Rule Trading Program are not subject to the requirements of §116.1520 or §116.1530 of this title for NO x and SO2. (e) Any BART-eligible source that has been screened out by the Texas Commission on Environmental Quality-conducted screening modeling is not subject to the requirements of §116.1520 or §116.1530 of this title, for the specified pollutant(s), if the owner or operator has reviewed the modeling inputs for that source and the executive director receives written certification that the inputs are correct no later than February 28, 2007.</content><note type="source"><p>Source Note: The provisions of this §116.1510 adopted to be effective February 1, 2007, 32 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scM/s116.1520"><num value="116.1520">§116.1520</num><heading>Best Available Retrofit Technology (BART) Analysis</heading><content>(a) Except as provided under §116.1510(b), (c), or (d) of this title (relating to Applicability and Exemption Requirements), each best available retrofit technology (BART)-eligible source shall conduct an analysis of emissions control alternatives for all visibility-impairing pollutants. This analysis must include the identification of all available, technically feasible retrofit technologies, and for each technology identified, an analysis of the cost of compliance, the energy and non-air quality environmental impacts, the degree of visibility improvement in affected Class I areas resulting from the use of the control technology, the remaining useful life of the source, and any existing control technology present at the source. Based on this analysis, the owner or operator shall identify an emission control strategy as the prospective BART control strategy for the source. The determination of BART must be made according to 40 Code of Federal Regulations Part 51, Appendix Y, as effective September 6, 2005.(b) As part of the BART analysis required in subsection (a) of this section, the owner or operator shall include detailed information documenting the projected hourly and annual emission limits for the selected BART control strategy.(c) The owner or operator of each BART-eligible source shall submit a completed BART analysis to the commission's Air Permits Division under seal of a Texas licensed professional engineer. The completed BART analysis must be received by the commission's Air Permits Division no later than April 30, 2007.</content><note type="source"><p>Source Note: The provisions of this §116.1520 adopted to be effective February 1, 2007, 32 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scM/s116.1530"><num value="116.1530">§116.1530</num><heading>Best Available Retrofit Technology (BART) Control Implementation</heading><content>(a) Each owner or operator of a best available retrofit technology (BART)-eligible source shall install and operate BART-required control equipment no later than five years after the United States Environmental Protection Agency has approved a Regional Haze State Implementation Plan for the State of Texas. Each owner or operator shall maintain the BART-required control equipment and establish procedures to ensure such equipment is properly and continuously operated and maintained.(b) Prior to any installation of BART-required control equipment, each owner or operator of a BART-eligible source shall comply with the requirements under Subchapter B of this chapter (relating to New Source Review Permits) or Subchapter F of this chapter (relating to Standard Permits) as applicable to authorize the construction or modification and to establish emission limitations of BART.</content><note type="source"><p>Source Note: The provisions of this §116.1530 adopted to be effective February 1, 2007, 32 TexReg 318; amended to be effective July 1, 2021, 46 TexReg 3924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c116/scM/s116.1540"><num value="116.1540">§116.1540</num><heading>Exemption from Best Available Retrofit Technology (BART) Control Implementation</heading><content>The owner or operator of any best available retrofit technology (BART)-eligible source may apply for an exemption from the requirement to install, operate, and maintain BART-required control equipment, pursuant to the provisions of 40 Code of Federal Regulations §51.303. Any exemption request under this section requires initial approval from the executive director and final approval from the administrator of the United States Environmental Protection Agency (EPA). Exemption requests submitted to the EPA must be accompanied by written concurrence from the executive director.</content><note type="source"><p>Source Note: The provisions of this §116.1540 adopted to be effective February 1, 2007, 32 TexReg 318.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c117"><num value="117">CHAPTER 117</num><heading>CONTROL OF AIR POLLUTION FROM NITROGEN COMPOUNDS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c117/scA"><num value="A">SUBCHAPTER A</num><heading>DEFINITIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c117/scA/s117.10"><num value="117.10">§117.10</num><heading>Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act or Chapter 101 of this title (relating to General Air Quality Rules), the terms in this chapter have the meanings commonly used in the field of air pollution control. Additionally, the following meanings apply, unless the context clearly indicates otherwise. Additional definitions for terms used in this chapter are found in §3.2 and §101.1 of this title (relating to Definitions).(1) Annual capacity factor--The total annual fuel consumed by a unit divided by the fuel that could be consumed by the unit if operated at its maximum rated capacity for 8,760 hours per year.(2) Applicable ozone nonattainment area-The following areas, as designated under the 1990 Federal Clean Air Act Amendments.(A) Beaumont-Port Arthur ozone nonattainment area--An area consisting of Hardin, Jefferson, and Orange Counties.(B) Bexar County ozone nonattainment area-An area consisting of Bexar County. (C) Dallas-Fort Worth eight-hour ozone nonattainment area--An area consisting of:(i) for the purposes of Subchapter D of this chapter (relating to Combustion Control at Minor Sources in Ozone Nonattainment Areas), Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties; or(ii) for all other divisions of this chapter, Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise Counties.(D) Houston-Galveston-Brazoria ozone nonattainment area--An area consisting of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller Counties.(3) Auxiliary steam boiler--Any combustion equipment within an electric power generating system, as defined in this section, that is used to produce steam for purposes other than generating electricity. An auxiliary steam boiler produces steam as a replacement for steam produced by another piece of equipment that is not operating due to planned or unplanned maintenance.(4) Average activity level for fuel oil firing--The product of an electric utility unit's maximum rated capacity for fuel oil firing and the average annual capacity factor for fuel oil firing for the period from January 1, 1990, to December 31, 1993.(5) Block one-hour average--An hourly average of data, collected starting at the beginning of each clock hour of the day and continuing until the start of the next clock hour.(6) Boiler--Any combustion equipment fired with solid, liquid, and/or gaseous fuel used to produce steam or to heat water.(7) Btu--British thermal unit.(8) Chemical processing gas turbine-A gas turbine that vents its exhaust gases into the operating stream of a chemical process.(9) Continuous emissions monitoring system (CEMS)--The total equipment necessary for the continuous determination and recordkeeping of process gas concentrations and emission rates in units of the applicable emission limitation.(10) Daily--A calendar day starting at midnight and continuing until midnight the following day.(11) Diesel engine--A compression-ignited two- or four-stroke engine that liquid fuel injected into the combustion chamber ignites when the air charge has been compressed to a temperature sufficiently high for auto-ignition.(12) Duct burner--A unit that combusts fuel and that is placed in the exhaust duct from another unit (such as a stationary gas turbine, stationary internal combustion engine, kiln, etc.) to allow the firing of additional fuel to heat the exhaust gases.(13) Electric generating facility (EGF)--A unit that generates electric energy for compensation and is owned or operated by a person doing business in this state, including a municipal corporation, electric cooperative, or river authority.(14) Electric power generating system--One electric power generating system consists of either:(A) for the purposes of Subchapter C, Divisions 1, 2, and 4 of this chapter (relating to Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources; Bexar County Ozone Nonattainment Area Utility Electric Generation Sources; and Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources), all boilers, auxiliary steam boilers, and stationary gas turbines (including duct burners used in turbine exhaust ducts) at electric generating facility (EGF) accounts that generate electric energy for compensation; are owned or operated by an electric cooperative, municipality, river authority, public utility, independent power producer, or a Public Utility Commission of Texas regulated utility, or any of its successors; and are entirely located in one of the following ozone nonattainment areas:(i) Beaumont-Port Arthur;(ii) Bexar County; or(iii) Dallas-Fort Worth eight-hour;(B) for the purposes of Subchapter C, Division 3 of this chapter (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources), all boilers, auxiliary steam boilers, and stationary gas turbines (including duct burners used in turbine exhaust ducts) at EGF accounts that generate electric energy for compensation; are owned or operated by an electric cooperative, municipality, river authority, public utility, or a Public Utility Commission of Texas regulated utility, or any of its successors; and are entirely located in the Houston-Galveston-Brazoria ozone nonattainment area;(C) for the purposes of Subchapter B, Division 3 of this chapter (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources), all units in the Houston-Galveston-Brazoria ozone nonattainment area that generate electricity but do not meet the conditions specified in subparagraph (B) of this paragraph, including, but not limited to, cogeneration units and units owned by independent power producers; or(D) for the purposes of Subchapter E, Division 1 of this chapter (relating to Utility Electric Generation in East and Central Texas), all boilers, auxiliary steam boilers, and stationary gas turbines at EGF accounts that generate electric energy for compensation; are owned or operated by an electric cooperative, independent power producer, municipality, river authority, or public utility, or any of its successors; and are located in Atascosa, Bastrop, Brazos, Calhoun, Cherokee, Fannin, Fayette, Freestone, Goliad, Gregg, Grimes, Harrison, Henderson, Hood, Hunt, Lamar, Limestone, Marion, McLennan, Milam, Morris, Nueces, Parker, Red River, Robertson, Rusk, Titus, Travis, Victoria, or Wharton County, or in Bexar County until December 31, 2024.(15) Emergency situation--As follows.(A) An emergency situation is any of the following:(i) an unforeseen electrical power failure from the serving electric power generating system;(ii) the period of time that an Electric Reliability Council of Texas, Inc. (ERCOT)-issued emergency notice or energy emergency alert (EEA) (as defined in ERCOT Nodal Protocols, Section 2: Definitions and Acronyms (August 13, 2014) and issued as specified in ERCOT Nodal Protocols, Section 6: Adjustment Period and Real-Time Operations (August 13, 2014)) is applicable to the serving electric power generating system. The emergency situation is considered to end upon expiration of the emergency notice or EEA issued by ERCOT;(iii) an unforeseen failure of on-site electrical transmission equipment (e.g., a transformer);(iv) an unforeseen failure of natural gas service;(v) an unforeseen flood or fire, or a life-threatening situation;(vi) operation of emergency generators for Federal Aviation Administration licensed airports, military airports, or manned space flight control centers for the purposes of providing power in anticipation of a power failure due to severe storm activity; or(vii) operation of an emergency generator as part of ERCOT's emergency response service (as defined in ERCOT Nodal Protocols, Section 2: Definitions and Acronyms (August 13, 2014)) if the operation is in direct response to an instruction by ERCOT during the period of an ERCOT EEA as specified in clause (ii) of this subparagraph.(B) An emergency situation does not include:(i) operation for training purposes or other foreseeable events; or(ii) operation for purposes of supplying power for distribution to the electric grid, except as specified in subparagraph (A)(vii) of this paragraph.(16) Functionally identical replacement--A unit that performs the same function as the existing unit that it replaces, with the condition that the unit replaced must be physically removed or rendered permanently inoperable before the unit replacing it is placed into service.(17) Heat input--The chemical heat released due to fuel combustion in a unit, using the higher heating value of the fuel. This does not include the sensible heat of the incoming combustion air. In the case of carbon monoxide (CO) boilers, the heat input includes the enthalpy of all regenerator off-gases and the heat of combustion of the incoming CO and of the auxiliary fuel. The enthalpy change of the fluid catalytic cracking unit regenerator off-gases refers to the total heat content of the gas at the temperature it enters the CO boiler, referring to the heat content at 60 degrees Fahrenheit, as being zero.(18) Heat treat furnace--A furnace that is used in the manufacturing, casting, or forging of metal to heat the metal so as to produce specific physical properties in that metal.(19) High heat release rate--A ratio of boiler design heat input to firebox volume (as bounded by the front firebox wall where the burner is located, the firebox side waterwall, and extending to the level just below or in front of the first row of convection pass tubes) greater than or equal to 70,000 British thermal units per hour per cubic foot.(20) Horsepower rating--The engine manufacturer's maximum continuous load rating at the lesser of the engine or driven equipment's maximum published continuous speed.(21) Incinerator--As follows.(A) For the purposes of this chapter, the term "incinerator" includes both of the following:(i) a control device that combusts or oxidizes gases or vapors (e.g., thermal oxidizer, catalytic oxidizer, vapor combustor); and(ii) an incinerator as defined in §101.1 of this title (relating to Definitions).(B) The term "incinerator" does not apply to boilers or process heaters as defined in this section, or to flares as defined in §101.1 of this title.(22) Industrial boiler--Any combustion equipment, not including utility or auxiliary steam boilers as defined in this section, fired with liquid, solid, or gaseous fuel, that is used to produce steam or to heat water.(23) International Standards Organization (ISO) conditions--ISO standard conditions of 59 degrees Fahrenheit, 1.0 atmosphere, and 60% relative humidity.(24) Large utility system--All boilers, auxiliary steam boilers, and stationary gas turbines that are located in the Dallas-Fort Worth eight-hour ozone nonattainment area, and were part of one electric power generating system on January 1, 2000, that had a combined electric generating capacity equal to or greater than 500 megawatts.(25) Lean-burn engine--A spark-ignited or compression-ignited, Otto cycle, diesel cycle, or two-stroke engine that is not capable of being operated with an exhaust stream oxygen concentration equal to or less than 0.5% by volume, as originally designed by the manufacturer. (26) Low annual capacity factor boiler, process heater, or gas turbine supplemental waste heat recovery unit--An industrial, commercial, or institutional boiler; process heater; or gas turbine supplemental waste heat recovery unit with maximum rated capacity:(A) greater than or equal to 40 million British thermal units per hour (MMBtu/hr), but less than 100 MMBtu/hr and an annual heat input less than or equal to 2.8 (1011 ) British thermal units per year (Btu/yr), based on a rolling 12-month average; or(B) greater than or equal to 100 MMBtu/hr and an annual heat input less than or equal to 2.2 (1011 ) Btu/yr, based on a rolling 12-month average.(27) Low annual capacity factor stationary gas turbine or stationary internal combustion engine--A stationary gas turbine or stationary internal combustion engine that is demonstrated to operate less than 850 hours per year, based on a rolling 12-month average.(28) Low heat release rate--A ratio of boiler design heat input to firebox volume less than 70,000 British thermal units per hour per cubic foot.(29) Major source--Any stationary source or group of sources located within a contiguous area and under common control that emits or has the potential to emit:(A) at least 50 tons per year (tpy) of nitrogen oxides (NOX ) and is located in the Beaumont-Port Arthur ozone nonattainment area;(B) at least 100 tpy of NOX and is located in the Bexar County ozone nonattainment area; (C) at least 25 tpy of NOX and is located in the Dallas-Fort Worth eight-hour ozone nonattainment area;(D) at least 25 tpy of NOX and is located in the Houston-Galveston-Brazoria ozone nonattainment area; or(E) the amount specified in the major source definition contained in the Prevention of Significant Deterioration of Air Quality regulations promulgated by the United States Environmental Protection Agency in 40 Code of Federal Regulations §52.21 as amended June 3, 1993 (effective June 3, 1994), and is located in Atascosa, Bastrop, Brazos, Calhoun, Cherokee, Comal, Fannin, Fayette, Freestone, Goliad, Gregg, Grimes, Harrison, Hays, Henderson, Hood, Hunt, Lamar, Limestone, Marion, McLennan, Milam, Morris, Nueces, Red River, Robertson, Rusk, Titus, Travis, Victoria, or Wharton County or in Bexar County until December 31, 2024.(30) Maximum rated capacity--The maximum design heat input, expressed in million British thermal units per hour, unless:(A) the unit is a boiler, utility boiler, or process heater operated above the maximum design heat input (as averaged over any one-hour period), in which case the maximum operated hourly rate must be used as the maximum rated capacity; or(B) the unit is limited by operating restriction or permit condition to a lesser heat input, in which case the limiting condition must be used as the maximum rated capacity; or(C) the unit is a stationary gas turbine, in which case the manufacturer's rated heat consumption at the International Standards Organization (ISO) conditions must be used as the maximum rated capacity, unless limited by permit condition to a lesser heat input, in which case the limiting condition must be used as the maximum rated capacity; or(D) the unit is a stationary, internal combustion engine, in which case the manufacturer's rated heat consumption at Diesel Equipment Manufacturer's Association or ISO conditions must be used as the maximum rated capacity, unless limited by permit condition to a lesser heat input, in which case the limiting condition must be used as the maximum rated capacity.(31) Megawatt (MW) rating--The continuous MW output rating or mechanical equivalent by a gas turbine manufacturer at International Standards Organization conditions, without consideration to the increase in gas turbine shaft output and/or the decrease in gas turbine fuel consumption by the addition of energy recovered from exhaust heat.(32) Nitric acid--Nitric acid that is 30% to 100% in strength.(33) Nitric acid production unit--Any source producing nitric acid by either the pressure or atmospheric pressure process.(34) Nitrogen oxides (NOX )--The sum of the nitric oxide and nitrogen dioxide in the flue gas or emission point, collectively expressed as nitrogen dioxide.(35) Parts per million by volume (ppmv)--All ppmv emission specifications specified in this chapter are referenced on a dry basis. When required to adjust pollutant concentrations to a specified oxygen (O2 ) correction basis, the following equation must be used.Attached Graphic(36) Peaking gas turbine or engine--A stationary gas turbine or engine used intermittently to produce energy on a demand basis.(37) Plant-wide emission rate--The ratio of the total actual nitrogen oxides mass emissions rate discharged into the atmosphere from affected units at a major source when firing at their maximum rated capacity to the total maximum rated capacities for those units.(38) Plant-wide emission specification--The ratio of the total allowable nitrogen oxides mass emissions rate dischargeable into the atmosphere from affected units at a major source when firing at their maximum rated capacity to the total maximum rated capacities for those units.(39) Predictive emissions monitoring system (PEMS)--The total equipment necessary for the continuous determination and recordkeeping of process gas concentrations and emission rates using process or control device operating parameter measurements and a conversion equation or computer program to produce results in units of the applicable emission limitation.(40) Process heater--Any combustion equipment fired with liquid and/or gaseous fuel that is used to transfer heat from combustion gases to a process fluid, superheated steam, or water for the purpose of heating the process fluid or causing a chemical reaction. The term "process heater" does not apply to any unfired waste heat recovery heater that is used to recover sensible heat from the exhaust of any combustion equipment, or to boilers as defined in this section.(41) Pyrolysis reactor--A unit that produces hydrocarbon products from the endothermic cracking of feedstocks such as ethane, propane, butane, and naphtha using combustion to provide indirect heating for the cracking process.(42) Reheat furnace--A furnace that is used in the manufacturing, casting, or forging of metal to raise the temperature of that metal in the course of processing to a temperature suitable for hot working or shaping.(43) Rich-burn engine--A spark-ignited, Otto cycle, four-stroke, naturally aspirated or turbocharged engine that is capable of being operated with an exhaust stream oxygen concentration equal to or less than 0.5% by volume, as originally designed by the manufacturer. (44) Small utility system--All boilers, auxiliary steam boilers, and stationary gas turbines that are located in the Dallas-Fort Worth eight-hour ozone nonattainment area, and were part of one electric power generating system on January 1, 2000, that had a combined electric generating capacity less than 500 megawatts.(45) Stationary gas turbine--Any gas turbine system that is gas and/or liquid fuel fired with or without power augmentation. This unit is either attached to a foundation or is portable equipment operated at a specific minor or major source for more than 90 days in any 12-month period. Two or more gas turbines powering one shaft must be treated as one unit.(46) Stationary internal combustion engine--A reciprocating engine that remains or will remain at a location (a single site at a building, structure, facility, or installation) for more than 12 consecutive months. Included in this definition is any engine that, by itself or in or on a piece of equipment, is portable, meaning designed to be and capable of being carried or moved from one location to another. Indicia of portability include, but are not limited to, wheels, skids, carrying handles, dolly, trailer, or platform. Any engine (or engines) that replaces an engine at a location and that is intended to perform the same or similar function as the engine being replaced is included in calculating the consecutive residence time period. An engine is considered stationary if it is removed from one location for a period and then returned to the same location in an attempt to circumvent the consecutive residence time requirement. Nonroad engines, as defined in 40 Code of Federal Regulations §89.2, are not considered stationary for the purposes of this chapter.(47) System-wide emission rate--The ratio of the total actual nitrogen oxides mass emissions rate discharged into the atmosphere from affected units in an electric power generating system or portion thereof located within a single ozone nonattainment area when firing at their maximum rated capacity to the total maximum rated capacities for those units. For fuel oil firing, average activity levels must be used in lieu of maximum rated capacities for the purpose of calculating the system-wide emission rate.(48) System-wide emission specification--The ratio of the total allowable nitrogen oxides mass emissions rate dischargeable into the atmosphere from affected units in an electric power generating system or portion thereof located within a single ozone nonattainment area when firing at their maximum rated capacity to the total maximum rated capacities for those units. For fuel oil firing, average activity levels must be used in lieu of maximum rated capacities for the purpose of calculating the system-wide emission specification.(49) Thirty-day rolling average--An average, calculated for each day that fuel is combusted in a unit, of all the hourly emissions data for the preceding 30 days that fuel was combusted in the unit.(50) Twenty-four hour rolling average--An average, calculated for each hour that fuel is combusted (or acid is produced, for a nitric or adipic acid production unit), of all the hourly emissions data for the preceding 24 hours that fuel was combusted in the unit.(51) Unit--A unit consists of either:(A) for the purposes of §§117.105, 117.305, 117.405, 117.1005, and 117.1205 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) and each requirement of this chapter associated with §§117.105, 117.305, 117.405, 117.1005, and 117.1205 of this title, any boiler, process heater, stationary gas turbine, or stationary internal combustion engine, as defined in this section;(B) for the purposes of §§117.110, 117.310, 117.1010, and 117.1210 of this title (relating to Emission Specifications for Attainment Demonstration) and each requirement of this chapter associated with §§117.110, 117.310, 117.1010, and 117.1210 of this title, any boiler, process heater, stationary gas turbine, or stationary internal combustion engine, as defined in this section, or any other stationary source of nitrogen oxides (NOX ) at a major source, as defined in this section;(C) for the purposes of §117.2010 of this title (relating to Emission Specifications) and each requirement of this chapter associated with §117.2010 of this title, any boiler, process heater, stationary gas turbine (including any duct burner in the turbine exhaust duct), or stationary internal combustion engine, as defined in this section;(D) for the purposes of §117.2110 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) and each requirement of this chapter associated with §117.2110 of this title, any stationary internal combustion engine, as defined in this section;(E) for the purposes of §117.3310 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) and each requirement of this chapter associated with §117.3310 of this title, any stationary internal combustion engine, as defined in this section;(F) for the purposes of §117.410 and §117.1310 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) and each requirement of this chapter associated with §117.410 and §117.1310 of this title, any boiler, process heater, stationary gas turbine, or stationary internal combustion engine, as defined in this section, or any other stationary source of NOX at a major source, as defined in this section;(G) for the purposes of §117.205 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) and each requirement of this chapter associated with §117.205 of this title, any stationary gas turbine (including any duct burner used in the turbine exhaust duct) or gas-fired lean-burn stationary reciprocating internal combustion engine, as defined in this section; or(H) for the purposes of §117.1105 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) and each requirement of this chapter associated with §117.1105 of this title, any utility boiler, auxiliary steam boiler, or stationary gas turbine (including any duct burner used in turbine exhaust ducts), as defined in this section.(52) Utility boiler--Any combustion equipment owned or operated by an electric cooperative, municipality, river authority, public utility, or Public Utility Commission of Texas regulated utility, fired with solid, liquid, and/or gaseous fuel, used to produce steam for the purpose of generating electricity. Stationary gas turbines, including any associated duct burners and unfired waste heat boilers, are not considered to be utility boilers.(53) Wood--Wood, wood residue, bark, or any derivative fuel or residue thereof in any form, including, but not limited to, sawdust, sander dust, wood chips, scraps, slabs, millings, shavings, and processed pellets made from wood or other forest residues.</content><note type="source"><p>Source Note: The provisions of this §117.10 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 2, 2013, 38 TexReg 2623; amended to be effective June 25, 2015, 40 TexReg 3965; amended to be effective March 26, 2020, 45 TexReg 2013; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c117/scB"><num value="B">SUBCHAPTER B</num><heading>COMBUSTION CONTROL AT MAJOR INDUSTRIAL, COMMERCIAL, AND INSTITUTIONAL SOURCES IN OZONE NONATTAINMENT AREAS</heading><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.100"><num value="117.100">§117.100</num><heading>Applicability</heading><content>The provisions of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Major Sources) apply to the following units located at any major stationary source of nitrogen oxides located within the Beaumont-Port Arthur ozone nonattainment area:(1) industrial, commercial, or institutional boilers and process heaters;(2) stationary gas turbines; and(3) stationary internal combustion engines.</content><note type="source"><p>Source Note: The provisions of this §117.100 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.103"><num value="117.103">§117.103</num><heading>Exemptions</heading><content>(a) General exemptions. Units exempted from the provisions of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Major Sources), except as specified in §§117.140(i), 117.145(f)(6), 117.150(c)(1), and 117.154(a)(5) of this title (relating to Continuous Demonstration of Compliance; Notification, Recordkeeping, and Reporting Requirements; Initial Control Plan Procedures; and Final Control Plan Procedures for Attainment Demonstration Emission Specifications), include the following:(1) any new units placed into service after November 15, 1992, except for new units that are qualified, at the option of the owner or operator, as functionally identical replacement for existing units under §117.105(a)(3) of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)). Any emission credits resulting from the operation of such replacement units are limited to the cumulative maximum rated capacity of the units replaced;(2) any industrial, commercial, or institutional boiler or process heater with a maximum rated capacity of less than 40 million British thermal units per hour (MMBtu/hr);(3) heat treating furnaces and reheat furnaces;(4) flares, incinerators, pulping liquor recovery furnaces, sulfur recovery units, sulfuric acid regeneration units, molten sulfur oxidation furnaces, and sulfur plant reaction boilers;(5) dryers, kilns, or ovens used for drying, baking, cooking, calcining, and vitrifying;(6) stationary gas turbines and stationary internal combustion engines that are used as follows:(A) in research and testing;(B) for purposes of performance verification and testing;(C) solely to power other engines or gas turbines during startups;(D) exclusively in emergency situations, except that operation for testing or maintenance purposes is allowed for up to 52 hours per year, based on a rolling 12-month average;(E) in response to and during the existence of any officially declared disaster or state of emergency;(F) directly and exclusively by the owner or operator for agricultural operations necessary for the growing of crops or raising of fowl or animals; or(G) as chemical processing gas turbines;(7) stationary gas turbines with a megawatt (MW) rating of less than 1.0 MW;(8) stationary internal combustion engines with a horsepower (hp) rating of less than 300 hp;(9) any stationary diesel engine; and(10) any cogeneration boiler that recovers waste heat from, or utilizes as a fuel source the tail gas from one or more carbon black reactors.(b) RACT exemptions. Units exempted from §117.105 of this title include the following:(1) any industrial, commercial, or institutional boiler or process heater with a maximum rated capacity less than 100 MMBtu/hr;(2) any low annual capacity factor boiler, process heater, stationary gas turbine, or stationary internal combustion engine as defined in §117.10 of this title (relating to Definitions);(3) boilers and industrial furnaces that were regulated as existing facilities in 40 Code of Federal Regulations Part 266, Subpart H, as was in effect on June 9, 1993;(4) fluid catalytic cracking units (including carbon monoxide (CO) boilers, CO furnaces, and catalyst regenerator vents);(5) duct burners used in turbine exhaust ducts;(6) any stationary gas turbine with a MW rating less than 10.0 MW;(7) any new units placed into service after November 15, 1992, except for new units that were placed into service as functionally identical replacement for existing units subject to the provisions of this division as of June 9, 1993. Any emission credits resulting from the operation of such replacement units are limited to the cumulative maximum rated capacity of the units replaced;(8) stationary gas turbines and engines, that are demonstrated to operate less than 850 hours per year, based on a rolling 12-month average; and(9) stationary internal combustion engines with a hp rating of less than 300 hp.(c) Attainment demonstration exemptions. Units exempted from §117.110 of this title (relating to Emission Specifications for Attainment Demonstration) include units exempted from emission specifications in subsection (b)(2) - (5) and (8) of this section.</content><note type="source"><p>Source Note: The provisions of this §117.103 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.105"><num value="117.105">§117.105</num><heading>Emission Specifications for Reasonably Available Control Technology (RACT)</heading><content>(a) No person shall allow the discharge of air contaminants into the atmosphere to exceed the emission specifications of this section, except as provided in §§117.115, 117.123, or 117.9800 of this title (relating to Alternative Plant-Wide Emission Specifications; Source Cap; and Use of Emission Credits for Compliance). (1) For purposes of this subchapter, the lower of any permit nitrogen oxides (NOX ) emission limit in effect on June 9, 1993, under a permit issued in accordance with Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) and the emission specifications of subsections (b) - (d) of this section apply, except that: (A) gas-fired boilers and process heaters operating under a permit issued after March 3, 1982, with a NOX emission limit of 0.12 pounds per million British thermal units (lb/MMBtu) heat input, are limited to that rate for the purposes of this subchapter; and (B) gas-fired boilers and process heaters that have had NOX reduction projects permitted since November 15, 1990, and prior to June 9, 1993, that were solely for the purpose of making early NOX reductions, are subject to the appropriate emission specification of subsection (b) of this section. The affected person shall document that the NOX reduction project was solely for the purpose of obtaining early reductions, and include this documentation in the initial control plan required in §117.150 of this title (relating to Initial Control Plan Procedures). (2) For purposes of calculating NOX emission limitations under this section from existing permit limits, the following procedure must be used: (A) the NOX emission limit explicitly stated in lb/MMBtu of heat input by permit provision (converted from low heating value to high heating value, as necessary); or (B) the NOX emission limit is the limit calculated as the permit Maximum Allowable Emission Rate Table emission limit in pounds per hour, divided by the maximum heat input to the unit in million British thermal units per hour (MMBtu/hr), as represented in the permit application. In the event the maximum heat input to the unit is not explicitly stated in the permit application, the rate must be calculated from Table 6 of the permit application, using the design maximum fuel flow rate and higher heating value of the fuel, or, if neither of the above are available, the unit's nameplate heat input. (3) For any unit placed into service after June 9, 1993, and before the final compliance date as specified in §117.9000 of this title (relating to Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Major Sources) as functionally identical replacement for an existing unit or group of units subject to the provisions of this chapter, the higher of any permit NOX emission limit under a permit issued after June 9, 1993, in accordance with Chapter 116 of this title and the emission specifications of subsections (b) - (d) of this section apply. Any emission credits resulting from the operation of such replacement units are limited to the cumulative maximum rated capacity of the units replaced. The inclusion of such new units is an optional method for complying with the emission limitations of §117.115 or §117.123 of this title. Compliance with this paragraph does not eliminate the requirement for new units to comply with Chapter 116 of this title. (b) For each boiler and process heater with a maximum rated capacity greater than or equal to 100.0 MMBtu/hr of heat input, the applicable NOX emission specification is as follows: (1) gas-fired boilers, as follows: (A) low heat release boilers with no preheated air or preheated air less than 200 degrees Fahrenheit, 0.10 lb/MMBtu of heat input; (B) low heat release boilers with preheated air greater than or equal to 200 degrees Fahrenheit and less than 400 degrees Fahrenheit, 0.15 lb/MMBtu of heat input; (C) low heat release boilers with preheated air greater than or equal to 400 degrees Fahrenheit, 0.20 lb/MMBtu of heat input; (D) high heat release boilers with no preheated air or preheated air less than 250 degrees Fahrenheit, 0.20 lb/MMBtu of heat input; (E) high heat release boilers with preheated air greater than or equal to 250 degrees Fahrenheit and less than 500 degrees Fahrenheit, 0.24 lb/MMBtu of heat input; or (F) high heat release boilers with preheated air greater than or equal to 500 degrees Fahrenheit, 0.28 lb/MMBtu of heat input; (2) gas-fired process heaters, based on either air preheat temperature or firebox temperature, as follows: (A) based on air preheat temperature: (i) process heaters with preheated air less than 200 degrees Fahrenheit, 0.10 lb/MMBtu of heat input; (ii) process heaters with preheated air greater than or equal to 200 degrees Fahrenheit and less than 400 degrees Fahrenheit, 0.13 lb/MMBtu of heat input; or (iii) process heaters with preheated air greater than or equal to 400 degrees Fahrenheit, 0.18 lb/MMBtu of heat input; or (B) based on firebox temperature: (i) process heaters with a firebox temperature less than 1,400 degrees Fahrenheit, 0.10 lb/MMBtu of heat input; (ii) process heaters with a firebox temperature greater than or equal to 1,400 degrees Fahrenheit and less than 1,800 degrees Fahrenheit, 0.125 lb/MMBtu of heat input; or (iii) process heaters with a firebox temperature greater than or equal to 1,800 degrees Fahrenheit, 0.15 lb/MMBtu of heat input; (3) liquid fuel-fired boilers and process heaters, 0.30 lb/MMBtu of heat input; (4) wood fuel-fired boilers and process heaters, 0.30 lb/MMBtu of heat input; (5) any unit operated with a combination of gaseous, liquid, or wood fuel, a variable emission limit calculated as the heat input weighted sum of the applicable emission limits of this subsection; (6) for any gas-fired boiler or process heater firing gaseous fuel that contains more than 50% hydrogen by volume, over an eight-hour period, in which the fuel gas composition is sampled and analyzed every three hours, a multiplier of up to 1.25 times the appropriate emission limit in this subsection may be used for that eight-hour period. The total hydrogen volume in all gaseous fuel streams will be divided by the total gaseous fuel flow volume to determine the volume percent of hydrogen in the fuel supply. The multiplier may not be used to increase limits set by permit. The following equation must be used by an owner or operator using a gas-fired boiler or process heater that is subject to this paragraph and one of the rolling 30-day averaging period emission limitations contained in paragraph (1) or (2) of this subsection to calculate an emission limitation for each rolling 30-day period: Attached Graphic(7) for units that operate with a NO X continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) under §117.140 of this title (relating to Continuous Demonstration of Compliance), the emission limits apply as: (A) the mass of NOX emitted per unit of energy input (lb/MMBtu), on a rolling 30-day average period; or (B) the mass of NOX emitted per hour (pounds per hour), on a block one-hour average, calculated as the product of the boiler's or process heater's maximum rated capacity and its applicable limit in lb/MMBtu; and (8) for units that do not operate with a NO X CEMS or PEMS under §117.140 of this title, the emission limits apply in pounds per hour, as specified in paragraph (7)(B) of this subsection. (c) No person shall allow the discharge into the atmosphere from any stationary gas turbine with a megawatt (MW) rating greater than or equal to 10.0 MW, emissions in excess of a block one-hour average concentration of 42 parts per million by volume (ppmv) NO X and 132 ppmv carbon monoxide (CO) at 15% oxygen (O 2), dry basis. For stationary gas turbines equipped with CEMS or PEMS for CO, the owner or operator may elect to comply with the CO specification of this subsection using a 24-hour rolling average. (d) No person shall allow the discharge into the atmosphere from any gas-fired, rich-burn, stationary, reciprocating internal combustion engine rated 300 horsepower (hp) or greater, NO X emissions in excess of a block one-hour average of 2.0 grams per horsepower-hour (g/hp-hr) and CO emissions in excess of a block one-hour average of 3.0 g/hp-hr. (e) No person shall allow the discharge into the atmosphere from any gas-fired, lean-burn, stationary, reciprocating internal combustion engine rated 300 hp or greater, NOX emissions in excess of 3.0 g/hp-hr and CO emissions in excess of 3.0 g/hp-hr, either as: (1) a block one-hour average limit; or (2) a 30-day rolling average limit. The owner or operator shall ensure compliance with a 30-day rolling average using: (A) a PEMS or CEMS under §117.140 of this title; or (B) a monitoring system that: (i) computes predicted emissions as a function of engine speed and torque using curves or equations supplied by the engine manufacturer or developed through engine testing, that: (I) may be adjusted by engine testing; and (II) must be shown to be consistent with the required initial and biennial compliance testing; and (ii) monitors and records data representative of engine torque and speed at sufficient frequency to accurately compute the 30-day average NOX . (f) No person shall allow the discharge into the atmosphere from any boiler or process heater subject to NO X emission specifications in subsection (a) or (b) of this section, CO emissions in excess of the following specifications: (1) for gas or liquid fuel-fired boilers or process heaters, 400 ppmv at 3.0% O2, dry basis; (2) for wood fuel-fired boilers or process heaters, 775 ppmv at 7.0% O2, dry basis; and (3) for units equipped with CEMS or PEMS for CO, the specifications of paragraphs (1) and (2) of this subsection apply on a rolling 24-hour averaging period. For units not equipped with CEMS or PEMS for CO, the specifications apply on a one-hour average. (g) No person shall allow the discharge into the atmosphere from any unit subject to a NOX emission specification in this section (including an alternative to the NO X limit in this section under §117.115 or §117.123 of this title) ammonia emissions in excess of 20 ppmv based on a block one-hour averaging period. (h) This section no longer applies to any gas-fired boiler or process heater after the appropriate compliance date(s) for emission specifications for attainment demonstration given in §117.9000(3) of this title.</content><note type="source"><p>Source Note: The provisions of this §117.105 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.110"><num value="117.110">§117.110</num><heading>Emission Specifications for Attainment Demonstration</heading><content>(a) Nitrogen oxides (NOX ) emission specifications. No person shall allow the discharge into the atmosphere from any gas-fired boiler or process heater with a maximum rated capacity equal to or greater than 40 million British thermal units per hour in the Beaumont-Port Arthur ozone nonattainment area, emissions of NOX in excess of the following, except as provided in subsection (d) of this section and §117.103(c) of this title (relating to Exemptions): (1) boilers, 0.10 pounds per million British thermal units (lb/MMBtu) of heat input; and (2) process heaters, 0.08 lb/MMBtu of heat input. (b) NOX averaging time. The emission specifications of subsection (a) of this section apply: (1) if the unit is operated with a NO X continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) under §117.140 of this title (relating to Continuous Demonstration of Compliance), either as: (A) a rolling 30-day average period, in the units of the applicable standard; (B) a block one-hour average, in the units of the applicable standard, or alternatively; (C) a block one-hour average, in pounds per hour, for boilers and process heaters, calculated as the product of the boiler's or process heater's maximum rated capacity and its applicable NO X emission specification in lb/MMBtu; and (2) if the unit is not operated with a NO X CEMS or PEMS under §117.140 of this title, a block one-hour average, in the units of the applicable standard. Alternatively for boilers and process heaters, the emission specifications may be applied in pounds per hour, as specified in paragraph (1)(C) of this subsection. (c) Related emissions. No person shall allow the discharge into the atmosphere from any unit subject to NOX emission specifications in subsection (a) of this section, emissions in excess of the following, except as provided in §117.125 of this title (relating to Alternative Case Specific Specifications) or paragraph (3) or (4) of this subsection. (1) Carbon monoxide (CO) emissions must not exceed 400 parts per million by volume (ppmv) at 3.0% oxygen (O2), dry basis (or alternatively, 3.0 grams per horsepower-hour for stationary internal combustion engines; or 775 ppmv at 7.0% O2 , dry basis for wood fuel-fired boilers or process heaters): (A) on a rolling 24-hour averaging period, for units equipped with CEMS or PEMS for CO; and (B) on a one-hour average, for units not equipped with CEMS or PEMS for CO. (2) For units that inject urea or ammonia into the exhaust stream for NOX control, ammonia emissions must not exceed 10 ppmv at 3.0% O2, dry, for boilers and process heaters; 15% O2, dry, for stationary gas turbines and gas-fired lean-burn engines; 0.0% O 2, dry, for fluid catalytic cracking units (including CO boilers, CO furnaces, and catalyst regenerator vents); 7.0% O2, dry, for boilers and industrial furnaces units that were regulated as existing facilities in 40 Code of Federal Regulations Part 266, Subpart H (as was in effect on June 9, 1993) and for wood-fired boilers; and 3.0% O 2, dry, for all other units, based on: (A) a block one-hour averaging period for units not equipped with a CEMS or PEMS for ammonia; or (B) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for ammonia. (3) The correction of CO emissions to 3.0% O 2, dry basis, in paragraph (1) of this subsection does not apply to boilers and process heaters operating at less than 10% of maximum load and with stack O2 in excess of 15% (i.e., hot-standby mode). (4) The CO specifications in paragraph (1) of this subsection do not apply to stationary internal combustion engines subject to §117.105(e) of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)). (d) Compliance flexibility. (1) An owner or operator may use any of the following alternative methods to comply with the NOX emission specifications of this section: (A) §117.115 of this title (relating to Alternative Plant-Wide Emission Specifications); (B) §117.123 of this title (relating to Source Cap); or (C) §117.9800 of this title (relating to Use of Emission Credits for Compliance). (2) Section 117.125 of this title is not an applicable method of compliance with the NOX emission specifications of this section. (3) An owner or operator may petition the executive director for an alternative to the CO or ammonia specifications of this section in accordance with §117.125 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.110 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.115"><num value="117.115">§117.115</num><heading>Alternative Plant-Wide Emission Specifications</heading><content>(a) An owner or operator may achieve compliance with the nitrogen oxides (NOX ) emission specifications of §117.105 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) or §117.110 of this title (relating to Emission Specifications for Attainment Demonstration) by achieving equivalent NOX emission reductions obtained by compliance with a plant-wide emission specification. Any owner or operator who elects to comply with a plant-wide emission specification shall reduce emissions of NOX from affected units so that if all such units were operated at their maximum rated capacity, the plant-wide emission rate of NOX from these units would not exceed the plant-wide emission specification as defined in §117.10 of this title (relating to Definitions). (b) The owner or operator shall establish an enforceable NOX emission limit for each affected unit at the source as follows. (1) For boilers and process heaters that operate with a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) in accordance with §117.140 of this title (relating to Continuous Demonstration of Compliance), the emission specifications apply in: (A) the units of the applicable standard (the mass of NOX emitted per unit of energy input (pounds per million British thermal units (lb/MMBtu) or parts per million by volume (ppmv)), on a rolling 30-day average period; or (B) as the mass of NOX emitted per hour (pounds per hour), on a block one-hour average. (2) For boilers and process heaters that do not operate with CEMS or PEMS, the emission specifications apply as the mass of NO X emitted per hour (pounds per hour), on a block one-hour average. (3) For stationary gas turbines, the emission specifications apply as the NOX concentration in ppmv at 15% oxygen (O2), dry basis on a block one-hour average. (4) For stationary internal combustion engines, the NOX emission specifications apply in units of grams per horsepower-hour (g/hp-hr) on a block one-hour average. (c) An owner or operator of any gaseous and liquid fuel-fired unit that derives more than 50% of its annual heat input from gaseous fuel shall use only the appropriate gaseous fuel emission specification of §117.105 or §117.110 of this title at maximum rated capacity in calculating the plant-wide emission specification and shall assign to the unit the maximum allowable NOX emission rate while firing gas, calculated in accordance with subsection (a) of this section. The owner or operator shall also: (1) comply with the assigned maximum allowable emission rate while firing gas only; (2) comply with the liquid fuel emission specification of §117.105 of this title while firing liquid fuel only; and (3) comply with a limit calculated as the actual heat input weighted sum of the assigned gas-firing allowable emission rate and the liquid fuel emission specification of §117.105 of this title while operating on liquid and gaseous fuel concurrently. (d) An owner or operator of any gaseous and liquid fuel-fired unit that derives more than 50% of its annual heat input from liquid fuel shall use a heat input weighted sum of the appropriate gaseous and liquid fuel emission specifications of §117.105 or §117.110 of this title in calculating the plant-wide emission specification and shall assign to the unit the maximum allowable NOX emission rate, calculated in accordance with subsection (a) of this section. (e) An owner or operator of any unit operated with a combination of gaseous (or liquid) and solid fuels shall use a heat input weighted sum of the appropriate emission specifications of §117.105 of this title in calculating the plant-wide emission specification and shall assign to the unit the maximum allowable NOX emission rate, calculated in accordance with subsection (a) of this section. (f) Units exempted from emission specifications in accordance with §117.103(b) and (c) of this title (relating to Exemptions) are also exempt under this section and must not be included in the plant-wide emission specification, except as follows. The owner or operator of exempted units as defined in §117.103(b) and (c) of this title may opt to include one or more of an entire equipment class of exempted units into the alternative plant-wide emission specifications. (1) Low annual capacity factor boilers, process heaters, stationary gas turbines, or stationary internal combustion engines as defined in §117.10 of this title are not to be considered as part of the opt-in class of equipment. (2) The ammonia and carbon monoxide emission specifications of §117.105 or §117.110 of this title apply to the opt-in units. (3) The individual NOX emission specification that is to be used in calculating the alternative plant-wide emission specifications is the lowest of any applicable permit emission specification determined in accordance with §117.105(a) of this title, the specification of paragraph (4) of this subsection, or when applicable, subsection (i) of this section. (4) The equipment classes that may be included in the alternative plant-wide emission specifications and the NOX emission rates that are to be used in calculating the alternative plant-wide emission specifications are listed in the table titled §117.115(f) OPT-IN UNITS. Attached Graphic(g) Solely for the purposes of calculating the plant-wide emission specification, the allowable NOX emission rate (in pounds per hour) for each affected unit must be calculated from the lowest of the emission specifications of §117.105 of this title, or when applicable, §117.110 of this title, or any applicable permit emission specification identified in subsection (i) of this section, as follows. (1) For each affected boiler and process heater, the rate is determined by the following equation. Attached Graphic(2) For each affected stationary internal combustion engine, the rate is determined by the following equation. Attached Graphic(3) For each affected stationary gas turbine, the rate is determined by the following equations. Attached Graphic(4) Each affected gas-fired boiler and process heater firing gaseous fuel that contains more than 50% hydrogen (H 2) by volume, on an annual basis, may be adjusted with a multiplier of up to 1.25 times the product of its maximum rated capacity and its NOX emission specification of §117.105 of this title. (A) Double application of the H2 content multiplier using this paragraph and §117.105(b)(6) of this title is not allowed. (B) The multiplier may not be used to increase a limit set by permit. (C) The fuel gas composition must be sampled and analyzed every three hours. (D) This paragraph is not applicable for establishing compliance with §117.110 of this title. (h) The owner or operator of any gas-fired boiler or process heater firing gaseous fuel that contains more than 50% H 2 by volume, over an eight-hour period, in which the fuel gas composition is sampled and analyzed every three hours, may use a multiplier of up to 1.25 times the emission limit assigned to the unit in this section for that eight-hour period. The total H2 volume in all gaseous fuel streams will be divided by the total gaseous fuel flow volume to determine the volume percent of H2 in the fuel supply. This subsection is not applicable to: (1) units under subsection (g)(4) of this section; (2) increase limits set by permit; or (3) establish compliance with §117.110 of this title. (i) When using this section for establishing alternative compliance with §117.110 of this title, the individual NO X emission specification that is to be used in calculating the alternative plant-wide emission specifications is the lowest of the specification of §117.110 of this title, the actual emission rate as of September 1, 1997, and any applicable permit emission specification, in effect on September 10, 1993.</content><note type="source"><p>Source Note: The provisions of this §117.115 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.123"><num value="117.123">§117.123</num><heading>Source Cap</heading><content>(a) An owner or operator may achieve compliance with the nitrogen oxides (NOX ) emission specifications of §117.105 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) or §117.110 of this title (relating to Emission Specifications for Attainment Demonstration), by achieving equivalent NOX emission reductions obtained by compliance with a source cap emission limitation in accordance with the requirements of this section. Each equipment category at a source whose individual emission units would otherwise be subject to the NOX emission specifications of §117.105 or §117.110 of this title may be included in the source cap. Any equipment category included in the source cap must include all emission units belonging to that category. Equipment categories include, but are not limited to, the following: steam generation, electrical generation, and units with the same product outputs, such as ethylene cracking furnaces. All emission units not included in the source cap must comply with the requirements of §117.105 or §117.110 of this title, or §117.115 of this title (relating to Alternative Plant-Wide Emission Specifications). (b) The source cap allowable mass emission rate must be calculated as follows. (1) A rolling 30-day average emission cap must be calculated for all emission units included in the source cap using the following equation. Attached Graphic(2) A maximum daily cap must be calculated for all emission units included in the source cap using the following equation. Attached Graphic(3) Each emission unit included in the source cap is subject to the requirements of both paragraphs (1) and (2) of this subsection at all times. (4) The owner or operator at its option may include any of the entire classes of exempted units listed in §117.115(f) of this title in a source cap. For compliance with §117.105(a) - (d) of this title, such units are required to reduce emissions available for use in the cap by an additional amount calculated in accordance with the United States Environmental Protection Agency's proposed Economic Incentive Program rules for offset ratios for trades between RACT and non-RACT sources, as published in the February 23, 1993, Federal Register (58 FR 11110). (5) For stationary internal combustion engines, the source cap allowable emission rate must be calculated in pounds per hour using the procedures specified in §117.115(g)(2) of this title. (6) For stationary gas turbines, the source cap allowable emission rate must be calculated in pounds per hour using the procedures specified in §117.115(g)(3) of this title. (c) The owner or operator who elects to comply with this section shall: (1) for each unit included in the source cap, either: (A) install, calibrate, maintain, and operate a continuous exhaust NOX monitor, carbon monoxide (CO) monitor, an oxygen (O2) (or carbon dioxide (CO 2)) diluent monitor, and a totalizing fuel flow meter in accordance with the requirements of §117.140 of this title (relating to Continuous Demonstration of Compliance). The required continuous emissions monitoring systems (CEMS) and fuel flow meters must be used to measure NO X , CO, and O2 (or CO 2) emissions and fuel use for each affected unit and must be used to demonstrate continuous compliance with the source cap; (B) install, calibrate, maintain, and operate a predictive emissions monitoring system (PEMS) and a totalizing fuel flow meter in accordance with the requirements of §117.140 of this title. The required PEMS and fuel flow meters must be used to measure NOX , CO, and O2 (or CO2) emissions and fuel flow for each affected unit and must be used to demonstrate continuous compliance with the source cap; or (C) for units not subject to continuous monitoring requirements and units belonging to the equipment classes listed in §117.115(f) of this title, the owner or operator may use the maximum emission rate as measured by hourly emission rate testing conducted in accordance with §117.135(e) of this title (relating to Initial Demonstration of Compliance) in lieu of CEMS or PEMS. Emission rates for these units are limited to the maximum emission rates obtained from testing conducted under §117.135(e) of this title; and (2) for each operating unit equipped with CEMS, either use a PEMS in accordance with §117.140 of this title, or the maximum emission rate as measured by hourly emission rate testing conducted in accordance with §117.135(e) of this title, to provide emissions compliance data during periods when the CEMS is off-line. The methods specified in 40 Code of Federal Regulations §75.46 must be used to provide emissions substitution data for units equipped with PEMS. (d) The owner or operator of any units subject to a source cap shall maintain daily records indicating the NOX emissions from each source and the total fuel usage for each unit and include a total NOX emissions summation and total fuel usage for all units under the source cap on a daily basis. Records must also be retained in accordance with §117.145 of this title (relating to Notification, Recordkeeping, and Reporting Requirements). (e) The owner or operator of any units operating under this provision shall report any exceedance of the source cap emission limit within 48 hours to the appropriate regional office. The owner or operator shall then follow up within 21 days of the exceedance with a written report that includes an analysis of the cause for the exceedance with appropriate data to demonstrate the amount of emissions in excess of the applicable limit and the necessary corrective actions taken by the company to assure future compliance. Additionally, the owner or operator shall submit semiannual reports for the monitoring systems in accordance with §117.145 of this title. (f) The owner or operator shall demonstrate initial compliance with the source cap in accordance with the schedule specified in §117.9000 of this title (relating to Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Major Sources). (g) For compliance with §117.105(a) - (d) of this title by November 15, 1999, a unit that has operated since November 15, 1990, and has since been permanently retired or decommissioned and rendered inoperable prior to June 9, 1993, may be included in the source cap emission limit under the following conditions. (1) The unit must have actually operated since November 15, 1990. (2) For purposes of calculating the source cap emission limit, the applicable emission limit for retired units must be calculated in accordance with subsection (b) of this section. (3) The actual heat input must be calculated according to subsection (b)(1) of this section. If the unit was not in service 24 consecutive months between January 1, 1990, and June 9, 1993, the actual heat input must be the average daily heat input for the continuous time period that the unit was in service, plus one standard deviation of the average daily heat input for that period. The maximum heat input must be the maximum heat input, as certified to the executive director, allowed or possible (whichever is lower) in a 24-hour period. (4) The owner or operator shall certify the unit's operational level and maximum rated capacity. (5) Emission reductions from shutdowns or curtailments that have not been used for netting or offset purposes under the requirements of Chapter 116 of this title or have not resulted from any other state or federal requirement may be included in the baseline for establishing the cap. (h) For compliance with §117.105(e) or §117.110 of this title, a unit that has been permanently retired or decommissioned and rendered inoperable may be included in the source cap under the following conditions. (1) Shutdowns must have occurred after September 10, 1993. (2) The source cap emission limit for retired units is calculated in accordance with subsection (b) of this section. (3) The actual heat input must be calculated according to subsection (b)(1) of this section. If the unit was not in service 24 consecutive months between January 1, 1997, and December 31, 1999, the actual heat input must be the average daily heat input for the continuous time period that the unit was in service, consistent with the heat input used to represent the unit's emissions in the attainment demonstration modeling inventory. The maximum heat input must be the maximum heat input, as certified to the executive director, allowed or possible (whichever is lower) in a 24-hour period. (4) The owner or operator shall certify the unit's operational level and maximum rated capacity. (5) Emission reductions from shutdowns or curtailments that have been used for netting or offset purposes under the requirements of Chapter 116 of this title may not be included in the baseline for establishing the cap. (i) A unit that has been shut down and rendered inoperable after June 9, 1993, but not permanently retired, should be identified in the initial control plan and may be included in the source cap to comply with the NOX emission specifications of this division required by November 15, 1999. (j) An owner or operator who chooses to use the source cap option shall include in the initial control plan, if required to be filed under §117.150 of this title (relating to Initial Control Plan Procedures), a plan for initial compliance. The owner or operator shall include in the initial control plan the identification of the election to use the source cap procedure as specified in this section to achieve compliance with this section and shall specifically identify all sources that will be included in the source cap. The owner or operator shall also include in the initial control plan the method of calculating the actual heat input for each unit included in the source cap, as specified in subsection (b)(1) of this section. An owner or operator who chooses to use the source cap option shall include in the final control plan procedures of §117.152 of this title (relating to Final Control Plan Procedures for Reasonably Available Control Technology) the information necessary under this section to demonstrate initial compliance with the source cap. (k) For the purposes of determining compliance with the source cap emission limit, the contribution of each affected unit that is operating during a startup, shutdown, or emissions event, as defined in §101.1 of this title (relating to Definitions), must be calculated from the NOX emission rate, as measured by the initial demonstration of compliance, for that unit, unless the owner or operator provides data demonstrating to the satisfaction of the executive director that actual emissions were less than maximum emissions during such periods.</content><note type="source"><p>Source Note: The provisions of this §117.123 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.125"><num value="117.125">§117.125</num><heading>Alternative Case Specific Specifications</heading><content>(a) Where a person can demonstrate that an affected unit cannot attain the applicable requirements of §117.105 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) or the carbon monoxide (CO) or ammonia specifications of §117.110(c) of this title (relating to Emission Specifications for Attainment Demonstration), the executive director may approve emission specifications different from §117.105 of this title or the CO or ammonia specifications in §117.110(c) of this title for that unit. The executive director:(1) shall consider on a case-by-case basis the technological and economic circumstances of the individual unit;(2) shall determine that such specifications are the result of the lowest emission limitation the unit is capable of meeting after the application of controls to meet the nitrogen oxides emission specifications of §117.105 or §117.110 of this title, as applicable; and(3) in determining whether to approve alternative emission specifications, may take into consideration the ability of the plant where the unit is located to meet emission specifications through plant-wide averaging at maximum capacity.(b) Any owner or operator affected by the executive director's decision to deny an alternative case specific emission specification may file a motion to overturn the executive director's decision. The requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) apply. Executive director approval does not necessarily constitute satisfaction of all federal requirements nor eliminate the need for approval by the United States Environmental Protection Agency in cases where specified criteria for determining equivalency have not been clearly identified in applicable sections of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Major Sources).</content><note type="source"><p>Source Note: The provisions of this §117.125 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.130"><num value="117.130">§117.130</num><heading>Operating Requirements</heading><content>(a) The owner or operator shall operate any unit subject to the emission specifications of §117.105 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) in compliance with those specifications. (b) The owner or operator shall operate any unit subject to the plant-wide emission specification of §117.115 of this title (relating to Alternative Plant-Wide Emission Specifications) such that the assigned maximum nitrogen oxides (NOX ) emission rate for each unit expressed in units of the applicable emission specification and averaging period, is in accordance with the list approved by the executive director pursuant to §117.152 of this title (relating to Final Control Plan Procedures for Reasonably Available Control Technology). (c) The owner or operator shall operate any unit subject to the source cap emission limits of §117.123 of this title (relating to Source Cap) in compliance with those limitations. (d) All units subject to §§117.105, 117.110(a), 117.115, or 117.123 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT); Emission Specifications for Attainment Demonstration; Alternative Plant-Wide Emission Specifications; and Source Cap) must be operated so as to minimize NOX emissions, consistent with the emission control techniques selected, over the unit's operating or load range during normal operations. Such operational requirements include the following. (1) Each boiler, except for wood-fired boilers, must be operated with oxygen (O2), carbon monoxide (CO), or fuel trim. (2) Each boiler and process heater controlled with forced flue gas recirculation (FGR) to reduce NOX emissions must be operated such that the proportional design rate of FGR is maintained, consistent with combustion stability, over the operating range. (3) Each boiler and process heater controlled with induced draft FGR to reduce NOX emissions must be operated such that the operation of FGR over the operating range is not restricted by artificial means. (4) Each unit controlled with steam or water injection must be operated such that injection rates are maintained to limit NO X concentrations to less than or equal to the NO X concentrations achieved at maximum rated capacity (corrected to 15% O2 on a dry basis for stationary gas turbines). (5) Each unit controlled with post-combustion control techniques must be operated such that the reducing agent injection rate is maintained to limit NOX concentrations to less than or equal to the NOX concentrations achieved at maximum rated capacity. (6) Each stationary internal combustion engine controlled with nonselective catalytic reduction must be equipped with an automatic air-fuel ratio (AFR) controller that operates on exhaust O2 or CO control and maintains AFR in the range required to meet the engine's applicable emission specifications. (7) Each stationary internal combustion engine must be checked for proper operation of the engine according to §117.8140(b) of this title (relating to Emission Monitoring for Engines).</content><note type="source"><p>Source Note: The provisions of this §117.130 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.135"><num value="117.135">§117.135</num><heading>Initial Demonstration of Compliance</heading><content>(a) The owner or operator of all units that are subject to the emission specifications of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Major Sources) shall test the units as follows. (1) The units must be tested for nitrogen oxides (NO X ), carbon monoxide (CO), and oxygen emissions while firing gaseous fuel or, as applicable: (A) hydrogen (H2) fuel for units that may fire more than 50% H2 by volume; and (B) liquid and solid fuel. (2) Units that inject urea or ammonia into the exhaust stream for NOX control must be tested for ammonia emissions. (3) All units must be tested that belong to equipment classes elected to be included in: (A) the alternative plant-wide emission specifications as defined in §117.115(f) of this title (relating to Alternative Plant-Wide Emission Specifications); or (B) the source cap as defined in §117.123(b)(4) of this title (relating to Source Cap). (4) Initial demonstration of compliance testing must be performed in accordance with the schedule specified in §117.9000 of this title (relating to Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Major Sources). (b) The initial demonstration of compliance tests required by subsection (a) of this section must use the methods referenced in subsection (e) or (f) of this section and must be used for determination of initial compliance with the emission specifications of this division. Test results must be reported in the units of the applicable emission specifications and averaging periods. (c) Any continuous emissions monitoring system (CEMS) or any predictive emissions monitoring system (PEMS) required by §117.140 of this title (relating to Continuous Demonstration of Compliance) must be installed and operational before conducting testing under subsection (a) of this section. Verification of operational status must, as a minimum, include completion of the initial relative accuracy test audit and the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device or system. (d) Early testing conducted before March 21, 1999, may be used to demonstrate compliance with the standards specified in this division, if the owner or operator of an affected facility demonstrates to the executive director that the prior compliance testing at least meets the requirements of subsections (a), (b), (c), (e), and (f) of this section. For early testing, the compliance stack test report required by subsection (g) of this section must be as complete as necessary to demonstrate to the executive director that the stack test was valid and the source has complied with the rule. The executive director reserves the right to request compliance testing or CEMS or PEMS performance evaluation at any time. (e) Compliance with the emission specifications of this division for units operating without CEMS or PEMS must be demonstrated according to the requirements of §117.8000 of this title (relating to Stack Testing Requirements). (f) Initial compliance with the emission specifications of this division for units operating with CEMS or PEMS in accordance with §117.140 of this title must be demonstrated after monitor certification testing using the CEMS or PEMS as follows. (1) For boilers and process heaters complying with a NOX emission specification in pounds per million British thermal units on a rolling 30-day average, NOX emissions from the unit are monitored for 30 successive unit operating days and the 30-day average emission rate is used to determine compliance with the NOX emission specification. The 30-day average emission rate is calculated as the average of all hourly emissions data recorded by the monitoring system during the 30-day test period. (2) For units complying with a NOX emission specification on a block one-hour average, any one-hour period while operating at the maximum rated capacity, or as near thereto as practicable, is used to determine compliance with the NOX emission specification. (3) For units complying with a CO emission specification, on a rolling 24-hour average, any 24-hour period is used to determine compliance with the CO emission specification. (4) For units complying with §117.123 of this title, a rolling 30-day average of total daily pounds of NOX emissions from the units are monitored (or calculated in accordance with §117.123(c) of this title) for 30 successive source operating days and the 30-day average emission rate is used to determine compliance with the NOX emission specification. The 30-day average emission rate is calculated as the average of all daily emissions data recorded by the monitoring and recording system during the 30-day test period. There must be no exceedances of the maximum daily cap during the 30-day test period. (g) Compliance stack test reports must include the information required in §117.8010 of this title (relating to Compliance Stack Test Reports).</content><note type="source"><p>Source Note: The provisions of this §117.135 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.140"><num value="117.140">§117.140</num><heading>Continuous Demonstration of Compliance</heading><content>(a) Totalizing fuel flow meters. The owner or operator of units listed in this subsection shall install, calibrate, maintain, and operate a totalizing fuel flow meter, with an accuracy of ± 5%, to individually and continuously measure the gas and liquid fuel usage. A computer that collects, sums, and stores electronic data from continuous fuel flow meters is an acceptable totalizer. The owner or operator of units with totalizing fuel flow meters installed prior to March 31, 2005, that do not meet the accuracy requirements of this subsection shall either recertify or replace existing meters to meet the ± 5% accuracy required as soon as practicable but no later than March 31, 2007. For the purpose of compliance with this subsection for units having pilot fuel supplied by a separate fuel system or from an unmonitored portion of the same fuel system, the fuel flow to pilots may be calculated using the manufacturer's design flow rates rather than measured with a fuel flow meter. The calculated pilot fuel flow rate must be added to the monitored fuel flow when fuel flow is totaled. (1) Totalizing fuel flow meters are required for the following units that are subject to §117.105 or §117.110 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT); and Emission Specifications for Attainment Demonstration) and for stationary gas turbines that are exempt under §117.103(b)(6) of this title (relating to Exemptions): (A) if individually rated more than 40 million British thermal units per hour (MMBtu/hr): (i) boilers; (ii) process heaters; and (iii) gas turbine supplemental-fired waste heat recovery units; (B) stationary, reciprocating internal combustion engines not exempt by §117.103(a)(6), (a)(8), (b)(8), or (b)(9) of this title; and (C) stationary gas turbines with a megawatt (MW) rating greater than or equal to 1.0 MW operated more than 850 hours per year. (2) The following are alternatives to the fuel flow monitoring requirements of paragraph (1) of this subsection. (A) Units operating with a nitrogen oxides (NOX ) and diluent continuous emissions monitoring system (CEMS) under subsection (e) of this section may monitor stack exhaust flow using the flow monitoring specifications of 40 Code of Federal Regulations (CFR) Part 60, Appendix B, Performance Specification 6 or 40 CFR Part 75, Appendix A. (B) Units that vent to a common stack with a NOX and diluent CEMS under subsection (e) of this section may use a single totalizing fuel flow meter. (C) Diesel engines operating with run time meters may meet the fuel flow monitoring requirements of this subsection through monthly fuel use records maintained for each engine. (D) Stationary reciprocating internal combustion engines and stationary gas turbines equipped with a continuous monitoring system that continuously monitors horsepower and hours of operation are not required to install totalizing fuel flow meters. The continuous monitoring system must be installed, calibrated, maintained, and operated according to manufacturers' recommended procedures. (b) Oxygen (O2) monitors. (1) The owner or operator shall install, calibrate, maintain, and operate an O2 monitor to measure exhaust O2 concentration on the following units operated with an annual heat input greater than 2.2(1011 ) British thermal units per year (Btu/yr): (A) boilers with a rated heat input greater than or equal to 100 MMBtu/hr; and (B) process heaters with a rated heat input greater than or equal to 100 MMBtu/hr, except as provided in subsection (f) of this section. (2) The following are not subject to this subsection: (A) units listed in §117.103(b)(3) - (5) and (7) - (9) of this title; (B) process heaters operating with a carbon dioxide CEMS for diluent monitoring under subsection (e) of this section; and (C) wood-fired boilers. (3) The O2 monitors required by this subsection are for process monitoring (predictive monitoring inputs, boiler trim, or process control) and are only required to meet the location specifications and quality assurance procedures referenced in subsection (e) of this section if O2 is the monitored diluent under that subsection. However, if new O2 monitors are required as a result of this subsection, the criteria in subsection (e) of this section should be considered the appropriate guidance for the location and calibration of the monitors. (c) NOX monitors. (1) The owner or operator of units listed in this paragraph shall install, calibrate, maintain, and operate a CEMS or predictive emissions monitoring system (PEMS) to monitor exhaust NOX . The units are: (A) boilers with a rated heat input greater than or equal to 250 MMBtu/hr and an annual heat input greater than 2.2(1011 ) Btu/yr; (B) process heaters with a rated heat input greater than or equal to 200 MMBtu/hr and an annual heat input greater than 2.2(1011 ) Btu/yr; (C) boilers and process heaters that are vented through a common stack and the total rated heat input from the units combined is greater than or equal to 250 MMBtu/hr and the annual heat input combined is greater than 2.2(1011 ) Btu/yr; (D) stationary gas turbines with an MW rating greater than or equal to 30 MW operated more than 850 hours per year; (E) units that use a chemical reagent for reduction of NOX ; and (F) units that the owner or operator elects to comply with the NOX emission specifications of §117.105 or §117.110(a) of this title using a pounds per million British thermal unit (lb/MMBtu) limit on a 30-day rolling average. (2) The following are not required to install CEMS or PEMS under this subsection: (A) for purposes of §117.105 or §117.110(a) of this title, units listed §117.103(b)(3) - (5) and (7) - (9) of this title; and (B) units subject to the NOX CEMS requirements of 40 CFR Part 75. (3) The owner or operator shall use one of the following methods to provide substitute emissions compliance data during periods when the NOX monitor is off-line: (A) if the NOX monitor is a CEMS: (i) subject to 40 CFR Part 75, use the missing data procedures specified in 40 CFR Part 75, Subpart D (Missing Data Substitution Procedures); or (ii) subject to 40 CFR Part 75, Appendix E, use the missing data procedures specified in 40 CFR Part 75, Appendix E, §2.5 (Missing Data Procedures); (B) use 40 CFR Part 75, Appendix E monitoring in accordance with §117.1040(d) of this title (relating to Continuous Demonstration of Compliance); (C) if the NOX monitor is a PEMS: (i) use the methods specified in 40 CFR Part 75, Subpart D; or (ii) use calculations in accordance with §117.8110(b) of this title (relating to Emission Monitoring System Requirements for Utility Electric Generation Sources); or (D) if the methods specified in subparagraphs (A) - (C) of this paragraph are not used, the owner or operator shall use the maximum block one-hour emission rate as measured during the initial demonstration of compliance required in §117.135(f) of this title (relating to Initial Demonstration of Compliance). (d) Carbon monoxide (CO) monitoring. The owner or operator shall monitor CO exhaust emissions from each unit listed in subsection (c)(1) of this section using one or more of the methods specified in §117.8120 of this title (relating to Carbon Monoxide (CO) Monitoring). (e) CEMS requirements. The owner or operator of any CEMS used to meet a pollutant monitoring requirement of this section shall comply with the requirements of §117.8100(a) of this title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources). (f) PEMS requirements. The owner or operator of any PEMS used to meet a pollutant monitoring requirement of this section shall comply with the following. (1) The PEMS must predict the pollutant emissions in the units of the applicable emission specifications of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Major Sources). (2) The PEMS must meet the requirements of §117.8100(b) of this title. (g) Engine monitoring. The owner or operator of any stationary gas engine subject to the emission specifications of this division shall stack test engine NOX and CO emissions as specified in §117.8140(a) of this title (relating to Emission Monitoring for Engines). (h) Monitoring for stationary gas turbines less than 30 MW. The owner or operator of any stationary gas turbine rated less than 30 MW using steam or water injection to comply with the emission specifications of §117.105 of this title or §117.115 of this title (relating to Alternative Plant-Wide Emission Specifications) shall either: (1) install, calibrate, maintain, and operate a NOX CEMS or PEMS in compliance with this section and monitor CO in compliance with subsection (d) of this section; or (2) install, calibrate, maintain, and operate a continuous monitoring system to monitor and record the average hourly fuel and steam or water consumption: (A) the system must be accurate to within ± 5.0%; (B) the steam-to-fuel or water-to-fuel ratio monitoring data must be used for demonstrating continuous compliance with the applicable emission specification of §117.105 or §117.115 of this title; and (C) steam or water injection control algorithms are subject to executive director approval. (i) Run time meters. The owner or operator of any stationary gas turbine or stationary internal combustion engine claimed exempt using the exemption of §117.103(a)(6)(D), (b)(2), or (b)(8) of this title shall record the operating time with an elapsed run time meter. Any run time meter installed on or after October 1, 2001, must be non-resettable. (j) Hydrogen (H2) monitoring. The owner or operator claiming the H2 multiplier of §117.105(b)(6) or §117.115(g)(4) or (h) of this title shall sample, analyze, and record every three hours the fuel gas composition to determine the volume percent H2. (1) The total H2 volume flow in all gaseous fuel streams to the unit must be divided by the total gaseous volume flow to determine the volume percent of H2 in the fuel supply to the unit. (2) Fuel gas analysis must be tested according to American Society for Testing and Materials (ASTM) Method D1945-81 or ASTM Method D2650-83, or other methods that are demonstrated to the satisfaction of the executive director and the United States Environmental Protection Agency to be equivalent. (3) A gaseous fuel stream containing 99% H2 by volume or greater may use the following procedure to be exempted from the sampling and analysis requirements of this subsection. (A) A fuel gas analysis must be performed initially using one of the test methods in this subsection to demonstrate that the gaseous fuel stream is 99% H2 by volume or greater. (B) The process flow diagram of the process unit that is the source of the H2 must be supplied to the executive director to illustrate the source and supply of the hydrogen stream. (C) The owner or operator shall certify that the gaseous fuel stream containing H2 will continuously remain, as a minimum, at 99% H2 by volume or greater during its use as a fuel to the combustion unit. (k) Data used for compliance. After the initial demonstration of compliance required by §117.135 of this title, the methods required in this section must be used to determine compliance with the emission specifications of §117.105 or §117.110(a) of this title. For enforcement purposes, the executive director may also use other commission compliance methods to determine whether the source is in compliance with applicable emission specifications. (l) Enforcement of NOX RACT limits. If compliance with §117.105 of this title is selected, no unit subject to §117.105 of this title may be operated at an emission rate higher than that allowed by the emission specifications of §117.105 of this title. If compliance with §117.115 of this title is selected, no unit subject to §117.115 of this title may be operated at an emission rate higher than that approved by the executive director under §117.152(b) of this title (relating to Final Control Plan Procedures for Reasonably Available Control Technology). (m) Loss of NOX RACT exemption. The owner or operator of any unit claimed exempt from the emission specifications of this division using the low annual capacity factor exemption of §117.103(b)(2) of this title shall notify the executive director within seven days if the Btu/yr or hour-per-year limit specified in §117.10 of this title (relating to Definitions), as appropriate, is exceeded. (1) If the limit is exceeded, the exemption from the emission specifications of this division is permanently withdrawn. (2) Within 90 days after loss of the exemption, the owner or operator shall submit a compliance plan detailing a plan to meet the applicable compliance limit as soon as possible, but no later than 24 months after exceeding the limit. The plan must include a schedule of increments of progress for the installation of the required control equipment. (3) The schedule is subject to the review and approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §117.140 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective March 4, 2009, 34 TexReg 1445.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.145"><num value="117.145">§117.145</num><heading>Notification, Recordkeeping, and Reporting Requirements</heading><content>(a) Startup and shutdown records. For units subject to the startup and/or shutdown provisions of §101.222 of this title (relating to Demonstrations), hourly records must be made of startup and/or shutdown events and maintained for a period of at least two years. Records must be available for inspection by the executive director, United States Environmental Protection Agency, and any local air pollution control agency having jurisdiction upon request. These records must include, but are not limited to: type of fuel burned; quantity of each type of fuel burned; and the date, time, and duration of the procedure. (b) Notification. The owner or operator of an affected source shall submit notification to the appropriate regional office and any local air pollution control agency having jurisdiction as follows: (1) verbal notification of the date of any testing conducted under §117.135 of this title (relating to Initial Demonstration of Compliance) at least 15 days prior to such date followed by written notification within 15 days after testing is completed; and (2) verbal notification of the date of any continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) relative accuracy test audit (RATA) conducted under §117.140 of this title (relating to Continuous Demonstration of Compliance) at least 15 days prior to such date followed by written notification within 15 days after testing is completed; and (c) Reporting of test results. The owner or operator of an affected unit shall furnish the Office of Compliance and Enforcement, the appropriate regional office, and any local air pollution control agency having jurisdiction a copy of any testing conducted under §117.135 of this title and any CEMS or PEMS RATA conducted under §117.140 of this title: (1) within 60 days after completion of such testing or evaluation; and (2) not later than the compliance schedule specified in §117.9000 of this title (relating to Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Major Sources). (d) Semiannual reports. The owner or operator of a unit required to install a CEMS, PEMS, or water-to-fuel or steam-to-fuel ratio monitoring system under §117.140 of this title shall report in writing to the executive director on a semiannual basis any exceedance of the applicable emission specifications of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Major Sources) and the monitoring system performance. All reports must be postmarked or received by the 30th day following the end of each calendar semiannual period. Written reports must include the following information: (1) the magnitude of excess emissions computed in accordance with 40 Code of Federal Regulations §60.13(h), any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the unit operating time during the reporting period: (A) for stationary gas turbines using steam-to-fuel or water-to-fuel ratio monitoring to demonstrate compliance in accordance with §117.140(h)(2) of this title, excess emissions are computed as each one-hour period that the average steam or water injection rate is below the level defined by the control algorithm as necessary to achieve compliance with the applicable emission specifications in §117.105 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)); and (B) for units complying with §117.123 of this title (relating to Source Cap), excess emissions are each daily period that the total nitrogen oxides (NOX ) emissions exceed the rolling 30-day average or the maximum daily NOX cap; (2) specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the affected unit, the nature and cause of any malfunction (if known), and the corrective action taken or preventative measures adopted; (3) the date and time identifying each period that the continuous monitoring system was inoperative, except for zero and span checks and the nature of the system repairs or adjustments; (4) when no excess emissions have occurred or the continuous monitoring system has not been inoperative, repaired, or adjusted, such information must be stated in the report; and (5) if the total duration of excess emissions for the reporting period is less than 1.0% of the total unit operating time for the reporting period and the CEMS, PEMS, or water-to-fuel or steam-to-fuel ratio monitoring system downtime for the reporting period is less than 5.0% of the total unit operating time for the reporting period, only a summary report form (as outlined in the latest edition of the commission's Guidance for Preparation of Summary, Excess Emission, and Continuous Monitoring System Reports) must be submitted, unless otherwise requested by the executive director. If the total duration of excess emissions for the reporting period is greater than or equal to 1.0% of the total operating time for the reporting period or the CEMS, PEMS, or water-to-fuel or steam-to-fuel ratio monitoring system downtime for the reporting period is greater than or equal to 5.0% of the total operating time for the reporting period, a summary report and an excess emission report must both be submitted. (e) Reporting for engines. The owner or operator of any gas-fired engine subject to the emission specifications in §§117.105, 117.110, or 117.115 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT); Emission Specifications for Attainment Demonstration; and Alternative Plant-Wide Emission Specifications) shall report in writing to the executive director on a semiannual basis any excess emissions and the air-fuel ratio monitoring system performance. All reports must be postmarked or received by the 30th day following the end of each calendar semiannual period. Written reports must include the following information: (1) the magnitude of excess emissions based on the quarterly emission checks of §117.130(d)(7) of this title (relating to Operating Requirements) and the biennial emission testing required for demonstration of emissions compliance in accordance with §117.140(g) of this title, computed in pounds per hour and grams per horsepower-hour, any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the engine operating time during the reporting period; and (2) specific identification, to the extent feasible, of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the engine or emission control system, the nature and cause of any malfunction (if known), and the corrective action taken or preventative measures adopted. (f) Recordkeeping. The owner or operator of a unit subject to the requirements of this division shall maintain written or electronic records of the data specified in this subsection. Such records must be kept for a period of at least five years and must be made available upon request by authorized representatives of the executive director, United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction. The records must include: (1) for each unit subject to §117.140(a) of this title, records of annual fuel usage; (2) for each unit using a CEMS or PEMS in accordance with §117.140 of this title, monitoring records of: (A) hourly emissions and fuel usage (or stack exhaust flow) for units complying with an emission limit enforced on a block one-hour average; or (B) daily emissions and fuel usage (or stack exhaust flow) for units complying with an emission limit enforced on a daily or rolling 30-day average. Emissions must be recorded in units of: (i) pounds per million British thermal units heat input; and (ii) pounds or tons per day; (3) for each stationary internal combustion engine subject to the emission specifications of this division, records of: (A) emissions measurements required by: (i) §117.130(d)(7) of this title; and (ii) §117.140(g) of this title; and (B) catalytic converter, air-fuel ratio controller, or other emissions-related control system maintenance, including the date and nature of corrective actions taken; (4) for each stationary gas turbine monitored by steam-to-fuel or water-to-fuel ratio in accordance with §117.140(h) of this title, records of hourly: (A) pounds of steam or water injected; (B) pounds of fuel consumed; and (C) the steam-to-fuel or water-to-fuel ratio; (5) for hydrogen (H2) fuel monitoring in accordance with §117.140(j) of this title, records of the volume percent H2 every three hours; (6) for units claimed exempt from emission specifications using the exemption of §117.103(a)(6)(D) or (b)(2) of this title (relating to Exemptions), either records of monthly: (A) fuel usage, for exemptions based on heat input; or (B) hours of operation, for exemptions based on hours per year of operation. In addition, for each engine claimed exempt under §117.103(a)(6)(D) of this title, written records must be maintained of the purpose of engine operation and, if operation was for an emergency situation, identification of the type of emergency situation and the start and end times and date(s) of the emergency situation; (7) records of carbon monoxide measurements specified in §117.140(d) of this title; (8) records of the results of initial certification testing, evaluations, calibrations, checks, adjustments, and maintenance of CEMS, PEMS, or steam-to-fuel or water-to-fuel ratio monitoring systems; (9) records of the results of performance testing, including initial demonstration of compliance testing conducted in accordance with §117.135 of this title; and (10) for each stationary reciprocating internal combustion engine and stationary gas turbine for which the owner or operator elects to use the alternative monitoring system allowed under §117.140(a)(2)(D) of this title, records of the daily average horsepower and total daily hours of operation. Units that are monitored according to §117.140(a)(2)(D) of this title are not required to keep records of annual fuel usage as required by paragraph (1) of this subsection.</content><note type="source"><p>Source Note: The provisions of this §117.145 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective March 4, 2009, 34 TexReg 1445.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.150"><num value="117.150">§117.150</num><heading>Initial Control Plan Procedures</heading><content>(a) The owner or operator of any major source of nitrogen oxides (NOX ) shall submit, for the approval of the executive director, an initial control plan for installation of NO X emissions control equipment (if required in order to comply with the emission specifications of this subchapter) and demonstration of anticipated compliance with the applicable requirements of this subchapter. (1) This section applies only to sources that were major for NOX emissions before November 15, 1992. (2) The executive director shall approve the plan if it contains all the information specified in this section. (3) Revisions to the initial control plan must be submitted with the final control plan. (b) The owner or operator shall provide results of emissions testing using portable or reference method analyzers or, as available, initial demonstration of compliance testing conducted in accordance with §117.135(e) or (f) of this title (relating to Initial Demonstration of Compliance) for NOX , carbon monoxide (CO), and oxygen emissions while firing gaseous fuel (and as applicable, hydrogen (H 2) fuel for units that may fire more than 50% H 2 by volume) and liquid and/or solid fuel at the maximum rated capacity or as near thereto as practicable, for the units listed in this subsection. Previous testing documentation for any claimed test waiver as allowed by §117.135(d) of this title must be submitted with the initial control plan. Any units that were not operated between June 9, 1993, and April 1, 1994, and do not have earlier representative emission test results available, must be tested and the results submitted to the executive director, with certification of the equipment's shutdown period, within 90 days after the date such equipment is returned to operation. Test results are required for the following units: (1) boilers and process heaters with a maximum rated capacity greater than or equal to 40 million British thermal units per hour (MMBtu/hr), except for low annual capacity factor boilers and process heaters as defined in §117.10 of this title (relating to Definitions); (2) boilers and industrial furnaces with a maximum rated capacity greater than or equal to 40 MMBtu/hr that were regulated as existing facilities in 40 Code of Federal Regulations Part 266, Subpart H, as was in effect on June 9, 1993, except for low annual capacity factor boilers and process heaters as defined in §117.10 of this title; (3) fluid catalytic cracking units with a maximum rated capacity greater than or equal to 40 MMBtu/hr; (4) gas turbine supplemental waste heat recovery units with a maximum rated fired capacity greater than or equal to 40 MMBtu/hr, except for low annual capacity factor gas turbine supplemental waste heat recovery units as defined in §117.10 of this title; (5) stationary gas turbines with a megawatt (MW) rating of greater than or equal to 1.0 MW, except for low annual capacity factor gas turbines or peaking gas turbines as defined in §117.10 of this title; and (6) gas-fired, stationary, reciprocating internal combustion engines rated 300 horsepower (hp) or greater, except for low annual capacity factor engines or peaking engines as defined in §117.10 of this title. (c) The initial control plan must be submitted by April 1, 1994, and must contain the following: (1) a list of all combustion units at the source with a maximum rated capacity greater than 5.0 MMBtu/hr; all stationary, reciprocating internal combustion engines rated 300 hp or greater; all stationary gas turbines with an MW rating of greater than or equal to 1.0 MW; the maximum rated capacity, anticipated annual capacity factor, the facility identification numbers and emission point numbers as submitted to the Industrial Emissions Assessment Section of the commission; and the emission point numbers as listed on the Maximum Allowable Emissions Rate Table of any applicable commission permit for each unit; (2) identification of all units subject to the emission specifications of §117.105 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)), §117.115 of this title (relating to Alternative Plant-Wide Emission Specifications), or §117.123 of this title (relating to Source Cap); (3) identification of all boilers, process heaters, stationary gas turbines, or engines with a claimed exemption from the emission specifications of §117.105 or §117.115 of this title and the rule basis for the claimed exemption; (4) identification of the election to use individual emission specifications as specified in §117.105 of this title, the plant-wide emission specification as specified in §117.115 of this title, or the source cap emission limit as specified in §117.123 of this title to achieve compliance with this rule; (5) a list of units to be controlled and the type of control to be applied for all such units, including an anticipated construction schedule; (6) a list of units requiring operating modifications to comply with §117.130(d) of this title (relating to Operating Requirements) and the type of modification to be applied for all such units, including an anticipated construction schedule; (7) a list of any units that have been or will be retired, decommissioned, or shut down and rendered inoperable after November 15, 1990, as a result of compliance with §117.105 of this title, indicating the date of occurrence or anticipated date of occurrence; (8) the basis for calculation of the rate of NO X emissions for each unit to demonstrate that each unit will achieve the NOX emission rates specified in this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Major Sources). For fluid catalytic cracking unit CO boilers, the basis for calculation of the NOX emission rate in pounds per million British thermal units (lb/MMBtu) for each unit must include the following: (A) the calculation of the CO boiler heat input; (B) the calculation of the appropriate CO boiler volumetric inlet and exhaust flowrates; and (C) the calculation of the CO boiler NO X emission rate in lb/MMBtu; (9) for units required to install totalizing fuel flow meters in accordance with §117.140(a) of this title (relating to Continuous Demonstration of Compliance), indication of whether the devices are currently in operation, and if so, whether they have been installed as a result of the requirements of this chapter; (10) for units that have had NOX reduction projects as specified in §117.105(a)(1)(B) of this title, documentation that such projects were undertaken solely for the purpose of obtaining early NOX reductions; and (11) test results in accordance with subsection (b) of this section.</content><note type="source"><p>Source Note: The provisions of this §117.150 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.152"><num value="117.152">§117.152</num><heading>Final Control Plan Procedures for Reasonably Available Control Technology</heading><content>(a) The owner or operator of units listed in §117.100 of this title (relating to Applicability) at a major source of nitrogen oxides (NOX ) shall submit a final control report to show compliance with the requirements of §117.105 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)). The report must include a list of the units listed in §117.100 of this title, showing: (1) the NOX emission specification resulting from application of §117.105 of this title for each non-exempt unit; (2) the section under which NOX compliance is being established for units specified in paragraph (1) of this subsection, either: (A) §117.105 of this title; (B) §117.115 of this title (relating to Alternative Plant-Wide Emission Specifications); (C) §117.123 of this title (relating to Source Cap); (D) §117.125 of this title (relating to Alternative Case Specific Specifications); or (E) §117.9800 of this title (relating to Use of Emission Credits for Compliance); (3) the method of NOX control for each unit; (4) the emissions measured by testing required in §117.135 of this title (relating to Initial Demonstration of Compliance); (5) the submittal date, and whether sent to the Austin or the regional office (or both), of any compliance stack test report or relative accuracy test audit report required by §117.135 of this title that is not being submitted concurrently with the final compliance report; and (6) the specific rule citation for any unit with a claimed exemption from the emission specifications of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Major Sources), for: (A) boilers and heaters with a maximum rated capacity greater than or equal to 100.0 million British thermal units per hour; (B) gas turbines with a megawatt (MW) rating greater than or equal to 10.0 MW; and (C) gas-fired internal combustion engines rated greater than or equal to 300 horsepower. (b) For sources complying with §117.115 of this title, in addition to the requirements of subsection (a) of this section, the owner or operator shall: (1) assign to each affected: (A) boiler or process heater, the maximum allowable NOX emission rate in pounds per million British thermal units (rolling 30-day average), or in pounds per hour (block one-hour average) indicating whether the fuel is gas, high-hydrogen gas, solid, or liquid; (B) stationary gas turbine, the maximum allowable NO X emission in parts per million by volume at 15% oxygen, dry basis on a block one-hour average; and (C) stationary internal combustion engine, the maximum allowable NOX emission rate in grams per horsepower-hour on a block one-hour average; (2) submit a list to the executive director for approval of: (A) the maximum allowable NOX emission rates identified in paragraph (1) of this subsection; and (B) the maximum rated capacity for each unit; (3) submit calculations used to calculate the plant-wide average in accordance with §117.115(g) of this title; and (4) maintain a copy of the approved list of emission specifications for verification of continued compliance with the requirements of §117.115 of this title. (c) For sources complying with §117.123 of this title, in addition to the requirements of subsection (a) of this section, the owner or operator shall submit: (1) the calculations used to calculate the 30-day average and maximum daily source cap allowable emission rates; (2) a list containing, for each unit in the cap: (A) the historical average daily heat input information, Hi ; (B) the maximum daily heat input, Hmi ; (C) the applicable restriction, Ri ; and (D) the method of monitoring emissions; (3) an explanation of the basis of the values of H i , Hmi , and Ri ; and (4) the information applicable to shutdown units, specified in §117.123(g) and (h) of this title. (d) The report must be submitted by the applicable date specified for final control plans in §117.9000 of this title (relating to Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Major Sources). The plan must be updated with any emission compliance measurements submitted for units using continuous emissions monitoring system or predictive emissions monitoring system and complying with an emission limit on a rolling 30-day average, according to the applicable schedule given in §117.9000 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.152 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.154"><num value="117.154">§117.154</num><heading>Final Control Plan Procedures for Attainment Demonstration Emission Specifications</heading><content>(a) The owner or operator of units listed in §117.110 of this title (relating to Emission Specifications for Attainment Demonstration) at a major source of nitrogen oxides (NOX ) shall submit a final control report to show compliance with the requirements of §117.110 of this title. The report must include: (1) the section under which NOX compliance is being established, either: (A) §117.110 of this title; (B) §117.115 of this title (relating to Alternative Plant-Wide Emission Specifications); (C) §117.123 of this title (relating to Source Cap); or (D) §117.9800 of this title (relating to Use of Emission Credits for Compliance); (2) the method of NOX control for each unit; (3) the emissions measured by testing required in §117.135 of this title (relating to Initial Demonstration of Compliance); (4) the submittal date, and whether sent to the central or the regional office (or both), of any compliance stack test report or relative accuracy test audit report required by §117.135 of this title that is not being submitted concurrently with the final compliance report; and (5) the specific rule citation for any unit with a claimed exemption from the emission specification of §117.110 of this title. (b) For sources complying with §117.123 of this title, in addition to the requirements of subsection (a) of this section, the owner or operator shall submit: (1) the calculations used to calculate the 30-day average and maximum daily source cap allowable emission rates; (2) a list containing, for each unit in the cap: (A) the average daily heat input, Hi , specified in §117.123(b)(1) of this title; (B) the maximum daily heat input, Hmi , specified in §117.123(b)(1) of this title; (C) the method of monitoring emissions; and (D) the method of providing substitute emissions data when the NOX monitoring system is not providing valid data; and (3) an explanation of the basis of the values of H i and Hmi . (c) The report must be submitted to the executive director by the applicable date specified for final control plans in §117.9000 of this title (relating to Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Major Sources). The plan must be updated with any emission compliance measurements submitted for units using continuous emissions monitoring system or predictive emissions monitoring system and complying with the source cap rolling 30-day average emission limit, according to the applicable schedule given in §117.9000 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.154 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.156"><num value="117.156">§117.156</num><heading>Revision of Final Control Plan</heading><content>A revised final control plan may be submitted by the owner or operator, along with any required permit applications. Such a plan must adhere to the emission specifications and the final compliance dates of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Major Sources).(1) For sources complying with §117.105 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)), §117.110 of this title (relating to Emission Specifications for Attainment Demonstration), or §117.115 of this title (relating to Alternative Plant-Wide Emission Specifications), replacement new units may be included in the control plan.(2) For sources complying with §117.123 of this title (relating to Source Cap), any new unit must be included in the source cap, if the unit belongs to an equipment category that is included in the source cap.(3) The revision of the final control plan is subject to the review and approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §117.156 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.200"><num value="117.200">§117.200</num><heading>Applicability</heading><content>This division applies to the following units located at any major stationary source of nitrogen oxides located in the Bexar County ozone nonattainment area:(1) stationary gas turbines;(2) duct burners used in turbine exhaust ducts; and(3) gas-fired lean-burn stationary reciprocating internal combustion engines.</content><note type="source"><p>Source Note: The provisions of this §117.200 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.203"><num value="117.203">§117.203</num><heading>Exemptions</heading><content>The following units are exempt from this division, except as specified in §§117.240(f), 117.245(f)(4) and (9), and 117.252 of this title (relating to Continuous Demonstration of Compliance; Notification, Recordkeeping, and Reporting Requirements; and Control Plan Procedures for Reasonably Available Control Technology (RACT)):(1) stationary gas turbines and gas-fired lean-burn stationary reciprocating internal combustion engines that are used as follows:(A) in research and testing of the unit;(B) for purposes of performance verification and testing of the unit;(C) solely to power other gas turbines or engines during startups;(D) exclusively in emergency situations, except that operation for testing or maintenance purposes of the gas turbine or engine is allowed for up to 100 hours per year, based on a rolling 12-month basis; or(E) in response to and during the existence of any officially declared disaster or state of emergency;(2) gas-fired lean-burn stationary reciprocating internal combustion engines with a horsepower (hp) rating less than 50 hp;(3) stationary gas turbines with a maximum rated capacity less than 10.0 million British thermal units per hour; and(4) units located at a major source that is subject to Subchapter C, Division 2 of this chapter (related to Bexar County Ozone Nonattainment Area Utility Electric Generation Sources).</content><note type="source"><p>Source Note: The provisions of this §117.203 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.205"><num value="117.205">§117.205</num><heading>Emission Specifications for Reasonably Available Control Technology (RACT)</heading><content>(a) Emission specifications. No person shall allow the discharge into the atmosphere nitrogen oxides (NOX ) emissions in excess of the following emission specifications, in accordance with the applicable schedule in §117.9010 of this title (relating to Compliance Schedule for Bexar County Ozone Nonattainment Area Major Sources), except as provided in subsection (c) of this section:(1) stationary gas turbines, 0.55 pound per million British thermal unit (lb/MMBtu);(2) duct burners used in turbine exhaust ducts, 0.55 lb/MMBtu; and(3) gas-fired lean-burn stationary reciprocating internal combustion engines, 0.5 gram per horsepower-hour.(b) NOX averaging time. The emission specifications in subsection (a) of this section apply on:(1) a block one-hour average, in the units of the applicable standard; or(2) if the unit is operated with a NOX continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) under §117.240 of this title (relating to Continuous Demonstration of Compliance), a rolling 30-day average, in the units of the applicable standard.(c) Compliance flexibility. An owner or operator may use §117.9800 of this title (relating to Use of Emission Credits for Compliance) to comply with the NOX emission specifications of this section.(d) Prohibition of circumvention.(1) The maximum rated capacity used to determine the applicability of the emission specifications in this section and the initial compliance demonstration, monitoring, testing requirements, and control plan requirements in §§117.235, 117.240, and 117.252 of this title (relating to Initial Demonstration of Compliance; Continuous Demonstration of Compliance; and Control Plan Procedures for Reasonably Available Control Technology) must be the greater of the following:(A) the maximum rated capacity as of December 31, 2019;(B) the maximum rated capacity after December 31, 2019; or(C) the maximum rated capacity authorized by a permit issued under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) after December 31, 2019.(2) A unit's classification is determined by the most specific classification applicable to the unit as of December 31, 2019. For example, a unit that is classified as a gas-fired lean-burn stationary reciprocating internal combustion engine as of December 31, 2019, but subsequently is authorized to operate as a dual-fuel engine, is classified as a gas-fired lean-burn stationary reciprocating internal combustion engine for the purposes of this chapter.(3) A source that met the definition of major source on December 31, 2019, is always classified as a major source for purposes of this chapter. A source that did not meet the definition of major source (i.e., was a minor source, or did not yet exist) on December 31, 2019, but becomes a major source at any time after December 31, 2019, is from that time forward always classified as a major source for purposes of this chapter.</content><note type="source"><p>Source Note: The provisions of this §117.205 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.230"><num value="117.230">§117.230</num><heading>Operating Requirements</heading><content>All units subject to the emission specifications in §117.205 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) must be operated to minimize nitrogen oxides (NOX ) emissions, consistent with the emission control techniques selected, over the unit's operating or load range during normal operations. Such operational requirements include the following.(1) Each unit controlled with post-combustion control techniques must be operated such that the reducing agent injection rate is maintained to limit NOX concentrations to less than or equal to the NOX concentrations achieved at maximum rated capacity.(2) Each gas-fired lean-burn stationary reciprocating internal combustion engine must be checked for proper operation of the engine according to §117.8140(b) of this title (relating to Emission Monitoring for Engines).</content><note type="source"><p>Source Note: The provisions of this §117.230 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.235"><num value="117.235">§117.235</num><heading>Initial Demonstration of Compliance</heading><content>(a) The owner or operator of any unit subject to §117.205 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) shall test the unit for nitrogen oxides (NOX ) and oxygen (O2 ) emissions while firing gaseous fuel or, as applicable, liquid and solid fuel. (b) Initial demonstration of compliance testing must be performed in accordance with the schedule specified in §117.9010 of this title (relating to Compliance Schedule for Bexar County Ozone Nonattainment Area Major Sources).(c) The initial demonstration of compliance tests required by subsection (a) of this section must use the methods referenced in subsection (e) or (f) of this section and must be used for determination of initial compliance with the emission specifications of this division. Test results must be reported in the units of the applicable emission specifications and averaging periods.(d) Any continuous emissions monitoring system (CEMS) or any predictive emissions monitoring system (PEMS) required by §117.240 of this title (relating to Continuous Demonstration of Compliance) must be installed and operational before conducting testing under subsection (a) of this section. Verification of operational status must, at a minimum, include completion of the initial monitor certification and the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device or system. (e) For units operating without CEMS or PEMS, compliance with the emission specifications of this division must be demonstrated according to the requirements of §117.8000 of this title (relating to Stack Testing Requirements).(f) For units operating with CEMS or PEMS in accordance with §117.240 of this title, initial compliance with the emission specifications of this division must be demonstrated after monitor certification testing using the CEMS or PEMS. For units complying with a NOX emission specification on a block one-hour average, every one-hour period while operating at the maximum rated capacity (or as near thereto as practicable) is used to determine compliance with the NOX emission specification.(g) Compliance stack test reports must include the information required in §117.8010 of this title (relating to Compliance Stack Test Reports).</content><note type="source"><p>Source Note: The provisions of this §117.235 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.240"><num value="117.240">§117.240</num><heading>Continuous Demonstration of Compliance</heading><content>(a) Totalizing fuel flow meters. (1) The owner or operator of units subject to this division shall install, calibrate, maintain, and operate a totalizing fuel flow meter, with an accuracy of ± 5%, to individually and continuously measure the gas and liquid fuel usage. A computer that collects, sums, and stores electronic data from continuous fuel flow meters is an acceptable totalizer. The owner or operator must continuously operate the totalizing fuel flow meter at least 95% of the time when the unit is operating during a calendar year. For the purpose of compliance with this subsection for units having pilot fuel supplied by a separate fuel system or from an unmonitored portion of the same fuel system, the fuel flow to pilots may be calculated using the manufacturer's design flow rates rather than measured with a fuel flow meter. The calculated pilot fuel flow rate must be added to the monitored fuel flow when fuel flow is totaled.(2) The following are alternatives to the fuel flow monitoring requirements of this subsection.(A) Units operating with a nitrogen oxides (NOX ) and diluent continuous emissions monitoring system (CEMS) under subsection (c) of this section may monitor stack exhaust flow using the flow monitoring specifications of 40 Code of Federal Regulations (CFR) Part 60, Appendix B, Performance Specification 6 or 40 CFR Part 75, Appendix A.(B) Units that vent to a common stack with a NOX and diluent CEMS under subsection (c) of this section may use a single totalizing fuel flow meter.(C) Gas-fired lean-burn stationary reciprocating internal combustion engines and gas turbines equipped with a continuous monitoring system that continuously monitors horsepower and hours of operation are not required to install totalizing fuel flow meters. The continuous monitoring system must be installed, calibrated, maintained, and operated according to manufacturers' recommended procedures.(b) NOX monitors.(1) The owner or operator of the following units shall install, calibrate, maintain, and operate a CEMS or predictive emissions monitoring system (PEMS) to monitor exhaust NOX : (A) units with a rated heat input greater than or equal to 100 million British thermal units (MMBtu) per hour; (B) stationary gas turbines with a megawatt (MW) rating greater than or equal to 30 MW and operated more than 850 hours per year;(C) units that use a chemical reagent for reduction of NOX ; and(D) units that the owner or operator elects to comply with the NOX emission specifications of §117.205(a) of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) using a pound per MMBtu limit on a 30-day rolling average.(2) Units subject to the NOX CEMS requirements of 40 CFR Part 75 are not required to install CEMS or PEMS under this subsection.(3) The owner or operator shall use one of the following methods to provide substitute emissions compliance data during periods when the NOX monitor is off-line:(A) if the NOX monitor is a CEMS:(i) subject to 40 CFR Part 75, use the missing data procedures specified in 40 CFR Part 75, Subpart D (Missing Data Substitution Procedures); or(ii) subject to 40 CFR Part 75, Appendix E, use the missing data procedures specified in 40 CFR Part 75, Appendix E, §2.5 (Missing Data Procedures); (B) if the NOX monitor is a PEMS:(i) use the methods specified in 40 CFR Part 75, Subpart D; or(ii) use calculations in accordance with §117.8110(b) of this title (relating to Emission Monitoring System Requirements for Utility Electric Generation Sources); (C) monitor operating parameters for each unit in accordance with 40 CFR Part 75, Appendix E, §1.1 or §1.2 and calculate NOX emission rates based on those procedures; or(D) use the maximum block one-hour emission rate as measured during the initial demonstration of compliance required in §117.235(e) of this title (relating to Initial Demonstration of Compliance).(c) CEMS requirements. The owner or operator of any CEMS used to meet a pollutant monitoring requirement of this section shall comply with the requirements of §117.8100(a) of this title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources).(d) PEMS requirements. The owner or operator of any PEMS used to meet a pollutant monitoring requirement of this section shall comply with the following.(1) The PEMS must predict the pollutant emissions in the units of the applicable emission limitations of this division.(2) The PEMS must meet the requirements of §117.8100(b) of this title.(e) Engine monitoring. The owner or operator of any gas-fired lean-burn stationary reciprocating internal combustion engine subject to the emission specifications of this division shall stack test engine NOX emissions as specified in §117.8140(a) of this title (relating to Emission Monitoring for Engines).(f) Run time meters. The owner or operator of any stationary gas turbine or gas-fired lean-burn stationary reciprocating internal combustion engine claimed exempt using the exemption of §117.203(1)(D) of this title (relating to Exemptions) shall record the operating time with a non-resettable elapsed run time meter.(g) Data used for compliance. After the initial demonstration of compliance required by §117.235 of this title, the methods required in this section must be used to determine compliance with the emission specifications of §117.205(a) of this title. For enforcement purposes, the executive director may also use other commission compliance methods to determine whether the unit is in compliance with applicable emission specifications.(h) Testing requirements.(1) The owner or operator of units that are subject to the emission specifications of §117.205(a) of this title shall test the units as specified in §117.235 of this title in accordance with the applicable schedule specified in §117.9010 of this title (relating to Compliance Schedule for Bexar County Eight-Hour Ozone Nonattainment Area Major Sources).(2) The owner or operator of any unit not equipped with CEMS or PEMS that are subject to the emission specifications of §117.205(a) of this title shall retest the unit as specified in §117.235 of this title within 60 days after any modification that could reasonably be expected to increase the NOX emission rate.</content><note type="source"><p>Source Note: The provisions of this §117.240 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.245"><num value="117.245">§117.245</num><heading>Notification, Recordkeeping, and Reporting Requirements</heading><content>(a) Startup and shutdown records. For units subject to the startup and/or shutdown provisions of §101.222 of this title (relating to Demonstrations), hourly records must be made of startup and/or shutdown events and maintained for a period of at least two years. Records must be available for inspection by the executive director, the United States Environmental Protection Agency, and any local air pollution control agency having jurisdiction upon request. These records must include but are not limited to: type of fuel burned; quantity of each type of fuel burned; and the date, time, and duration of the procedure.(b) Notification. The owner or operator of a unit subject to the emission specifications of §117.205(a) of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) shall submit written notification of any continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) relative accuracy test audit (RATA) conducted under §117.240 of this title (relating to Continuous Demonstration of Compliance) or any testing conducted under §117.235 of this title (relating to Initial Demonstration of Compliance) at least 15 days in advance of the date of the RATA or testing to the appropriate regional office and any local air pollution control agency having jurisdiction.(c) Reporting of test results. The owner or operator of a unit subject to the emission specifications of §117.205(a) of this title shall furnish the Office of Compliance and Enforcement, the appropriate regional office, and any local air pollution control agency having jurisdiction a copy of any testing conducted under §117.235 of this title and any CEMS or PEMS RATA conducted under §117.240 of this title:(1) within 60 days after completion of such testing or evaluation; and(2) not later than the compliance schedule specified in §117.9010 of this title (relating to Compliance Schedule for Bexar County Eight-Hour Ozone Nonattainment Area Major Sources).(d) Semiannual reports. The owner or operator of a unit required to install a CEMS or PEMS under §117.240 of this title shall report in writing to the executive director on a semiannual basis any exceedance of the applicable emission specifications of this division and the monitoring system performance. All reports must be postmarked or received by the 30th day following the end of each calendar semiannual period (i.e., July 30 and January 30). Written reports must include the following information:(1) the magnitude of excess emissions computed in accordance with 40 Code of Federal Regulations §60.13(h), any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the unit operating time during the reporting period;(2) specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the affected unit, the nature and cause of any malfunction (if known), and the corrective action taken, or preventative measures adopted;(3) the date and time identifying each period when the continuous monitoring system was inoperative, except for zero and span checks and the nature of the system repairs or adjustments;(4) when no excess emissions have occurred or the continuous monitoring system has not been inoperative, repaired, or adjusted, such information must be stated in the report; and(5) if the total duration of excess emissions for the reporting period is less than 1.0% of the total unit operating time for the reporting period and the CEMS or PEMS downtime for the reporting period is less than 5.0% of the total unit operating time for the reporting period, only a summary report form (as outlined in the latest edition of the commission's Guidance for Preparation of Summary, Excess Emission, and Continuous Monitoring System Reports) must be submitted, unless otherwise requested by the executive director. If the total duration of excess emissions for the reporting period is greater than or equal to 1.0% of the total unit operating time for the reporting period or the CEMS or PEMS downtime for the reporting period is greater than or equal to 5.0% of the total unit operating time for the reporting period, a summary report and an excess emission report must both be submitted.(e) Reporting for engines. The owner or operator of any gas-fired engine subject to the emission specifications in §117.205 of this title shall report in writing to the executive director on a semiannual basis any excess emissions and the air-fuel ratio monitoring system performance. All reports must be postmarked or received by the 30th day following the end of each calendar semiannual period (i.e., July 30 and January 30). Written reports must include the following information:(1) the magnitude of excess emissions (based on the quarterly emission checks of §117.230(a)(2) of this title (relating to Operating Requirements) and the biennial emission testing required for demonstration of emissions compliance in accordance with §117.240(e) of this title), computed in pounds per hour and grams per horsepower-hour, any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the engine operating time during the reporting period; and(2) specific identification, to the extent feasible, of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the engine or emission control system, the nature and cause of any malfunction (if known), and the corrective action taken, or preventative measures adopted.(f) Recordkeeping. The owner or operator of a unit subject to the requirements of this division shall maintain written or electronic records of the data specified in this subsection. Such records must be kept for a period of at least five years and must be made available upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction. The records must include:(1) for each unit subject to §117.240(a) of this title, records of annual fuel usage;(2) for each unit using a CEMS or PEMS in accordance with §117.240 of this title, monitoring records of:(A) hourly emissions and fuel usage (or stack exhaust flow) for units complying with an emission specification enforced on a block one-hour average; or(B) daily emissions and fuel usage (or stack exhaust flow) for units complying with an emission specification enforced on a daily or rolling 30-day average. Emissions must be recorded in units of:(i) pounds per million British thermal units (lb/MMBtu) heat input; and(ii) pounds or tons per day;(3) for each stationary internal combustion engine subject to the emission specifications of this division, records of:(A) emissions measurements required by:(i) §117.230(2) of this title; and(ii) §117.240(e) of this title;(B) catalytic converter, air-fuel ratio controller, or other emissions-related control system maintenance, including the date and nature of corrective actions taken; and(C) daily average horsepower and total daily hours of operation for each engine that the owner or operator elects to use the alternative monitoring system allowed under §117.240(a)(2)(C) of this title;(4) for units claimed exempt from emission specifications using the exemption of §117.203(1)(D) of this title (relating to Exemptions), records of monthly hours of operation, for exemptions based on hours per year of operation. In addition, for each turbine or engine claimed exempt under §117.203(1)(D) or (E) of this title, written records must be maintained of the purpose of turbine or engine operation and, if operation was for an emergency situation, identification of the type of emergency situation and the start and end times and date(s) of the emergency situation;(5) records of the results of initial certification testing, evaluations, calibrations, checks, adjustments, and maintenance of CEMS or PEMS; and(6) records of the results of performance testing, including initial demonstration of compliance testing conducted in accordance with §117.235 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.245 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.252"><num value="117.252">§117.252</num><heading>Control Plan Procedures for Reasonably Available Control Technology</heading><content>(a) The owner or operator of any unit subject to §117.205 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) at a major source of nitrogen oxides (NOX ) shall maintain a control plan report to show compliance with the requirements of §117.205 of this title. The report must include:(1) a list of all units that are subject to §117.205 of this title. The list must include for each unit:(A) the facility identification number and emission point number as submitted to the Emissions Assessment Section of the commission; and(B) the emission point number as listed on the Maximum Allowable Emissions Rate Table of any applicable commission permit;(C) the maximum rated capacity;(D) the method of NOX control for each unit;(E) the emissions measured by testing required in §117.235 of this title (relating to Initial Demonstration of Compliance);(F) the compliance stack test report or monitor certification report required by §117.235 of this title; and(G) the use of any compliance flexibility in accordance with §117.9800 of this title (relating to Use of Emission Credits for Compliance); and (2) a list of all units with a claimed exemption from the emission specification of §117.205 of this title and the specific rule citation claimed as the basis for that exemption.(b) The report must be submitted to the Office of Compliance and Enforcement, the appropriate regional office, and the Office of Air by the applicable date specified for control plans in §117.9010 of this title (relating to Compliance Schedule for Bexar County Major Sources). (c) For any unit that becomes subject to §117.205 of this title after the applicable date specified for control plans in §117.9010 of this title, the control plan must be submitted to the Office of Compliance and Enforcement, the appropriate regional office, and the Office of Air no later than 60 days after becoming subject. (d) If any of the information changes in a control plan report submitted in accordance with subsection (b) or (c) of this section, including functionally identical replacements, the control plan must be updated no later than 60 days after the change occurs. Written or electronic records of the updated control plan must be kept for a period of at least five years and must be made available upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §117.252 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.300"><num value="117.300">§117.300</num><heading>Applicability</heading><content>The provisions of this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources) apply to the following units located at any major stationary source of nitrogen oxides located within the Houston-Galveston-Brazoria ozone nonattainment area:(1) industrial, commercial, or institutional boilers and process heaters;(2) stationary gas turbines;(3) stationary internal combustion engines;(4) fluid catalytic cracking units (including carbon monoxide (CO) boilers, CO furnaces, and catalyst regenerator vents);(5) boilers and industrial furnaces that were regulated as existing facilities in 40 Code of Federal Regulations Part 266, Subpart H (as was in effect on June 9, 1993);(6) duct burners used in turbine exhaust ducts;(7) pulping liquor recovery furnaces;(8) lime kilns;(9) lightweight aggregate kilns;(10) heat treating furnaces and reheat furnaces;(11) magnesium chloride fluidized bed dryers; and(12) incinerators.</content><note type="source"><p>Source Note: The provisions of this §117.300 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.303"><num value="117.303">§117.303</num><heading>Exemptions</heading><content>(a) General exemptions. Units exempted from the provisions of this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources), except as specified in §§117.310(f), 117.340(j), 117.345(f)(6) and (10), 117.350(c)(1), and 117.354(a)(5) of this title (relating to Emission Specifications for Attainment Demonstration; Continuous Demonstration of Compliance; Notification, Recordkeeping, and Reporting Requirements; Initial Control Plan Procedures; and Final Control Plan Procedures for Attainment Demonstration Emission Specifications), include the following:(1) any new units placed into service after November 15, 1992, except for new units that are qualified, at the option of the owner or operator, as functionally identical replacement for existing units under §117.305(a)(3) of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)). Any emission credits resulting from the operation of such replacement units are limited to the cumulative maximum rated capacity of the units replaced. This exemption no longer applies after the appropriate compliance date(s) for emission specifications for attainment demonstration specified in §117.9020 of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources);(2) any industrial, commercial, or institutional boiler or process heater with a maximum rated capacity of less than 40 million British thermal units per hour (MMBtu/hr). This exemption no longer applies after the appropriate compliance date(s) for emission specifications for attainment demonstration specified in §117.9020 of this title;(3) heat treating furnaces and reheat furnaces. This exemption no longer applies to any heat treating furnace or reheat furnace with a maximum rated capacity of 20 MMBtu/hr or greater after the appropriate compliance date(s) for emission specifications for attainment demonstration specified in §117.9020 of this title;(4) flares, incinerators, pulping liquor recovery furnaces, sulfur recovery units, sulfuric acid regeneration units, molten sulfur oxidation furnaces, and sulfur plant reaction boilers. This exemption no longer applies to the following units after the appropriate compliance date(s) for emission specifications for attainment demonstration specified in §117.9020 of this title:(A) incinerators with a maximum rated capacity of 40 MMBtu/hr or greater; and(B) pulping liquor recovery furnaces;(5) dryers, kilns, or ovens used for drying, baking, cooking, calcining, and vitrifying. This exemption no longer applies to the following units after the appropriate compliance date(s) for emission specifications for attainment demonstration specified in §117.9020 of this title:(A) magnesium chloride fluidized bed dryers; and(B) lime kilns and lightweight aggregate kilns;(6) stationary gas turbines and stationary internal combustion engines, that are used as follows:(A) in research and testing;(B) for purposes of performance verification and testing;(C) solely to power other engines or gas turbines during startups;(D) exclusively in emergency situations, except that operation for testing or maintenance purposes is allowed for up to 52 hours per year, based on a rolling 12-month average. Any new, modified, reconstructed, or relocated stationary diesel engine placed into service on or after October 1, 2001, is ineligible for this exemption. For the purposes of this subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title (relating to General Definitions) and 40 Code of Federal Regulations (CFR) §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title (relating to Definitions), a used engine from anywhere outside that account;(E) in response to and during the existence of any officially declared disaster or state of emergency;(F) directly and exclusively by the owner or operator for agricultural operations necessary for the growing of crops or raising of fowl or animals; or(G) as chemical processing gas turbines;(7) stationary gas turbines with a megawatt (MW) rating of less than 1.0 MW. This exemption no longer applies after the appropriate compliance date(s) for emission specifications for attainment demonstration specified in §117.9020 of this title;(8) stationary internal combustion engines with a horsepower (hp) rating of less than 150 hp. This exemption no longer applies after the appropriate compliance date(s) for emission specifications for attainment demonstration specified in §117.9020 of this title;(9) any boiler or process heater with a maximum rated capacity of 2.0 MMBtu/hr or less;(10) any stationary diesel engine placed into service before October 1, 2001, that:(A) operates less than 100 hours per year, based on a rolling 12-month average; and(B) has not been modified, reconstructed, or relocated on or after October 1, 2001. For the purposes of this subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title and 40 CFR §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title, a used engine from anywhere outside that account; and(11) any new, modified, reconstructed, or relocated stationary diesel engine placed into service on or after October 1, 2001, that:(A) operates less than 100 hours per year, based on a rolling 12-month average, in other than emergency situations; and(B) meets the corresponding emission standard for non-road engines listed in 40 CFR §89.112(a), Table 1 (October 23, 1998) and in effect at the time of installation, modification, reconstruction, or relocation. For the purposes of this paragraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title and 40 CFR §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title, a used engine from anywhere outside that account.(b) RACT exemptions. Units exempted from the emissions specifications of §117.305 of this title include the following:(1) any industrial, commercial, or institutional boiler or process heater with a maximum rated capacity less than 100 MMBtu/hr;(2) any low annual capacity factor boiler, process heater, stationary gas turbine, or stationary internal combustion engine as defined in §117.10 of this title (relating to Definitions);(3) boilers and industrial furnaces that were regulated as existing facilities by the United States Environmental Protection Agency 40 CFR Part 266, Subpart H, as was in effect on June 9, 1993;(4) fluid catalytic cracking units (including carbon monoxide (CO) boilers, CO furnaces, and catalyst regenerator vents);(5) duct burners used in turbine exhaust ducts;(6) any lean-burn, stationary, reciprocating internal combustion engine;(7) any stationary gas turbine with a MW rating less than 10.0 MW;(8) any new units placed into service after November 15, 1992, except for new units that were placed into service as functionally identical replacement for existing units subject to the provisions of this division as of June 9, 1993. Any emission credits resulting from the operation of such replacement units are limited to the cumulative maximum rated capacity of the units replaced;(9) stationary gas turbines and engines, that are demonstrated to operate less than 850 hours per year, based on a rolling 12-month average; and(10) stationary internal combustion engines with a hp rating of less than 150 hp.</content><note type="source"><p>Source Note: The provisions of this §117.303 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.305"><num value="117.305">§117.305</num><heading>Emission Specifications for Reasonably Available Control Technology (RACT)</heading><content>(a) No person shall allow the discharge of air contaminants into the atmosphere to exceed the emission specifications of this section, except as provided in §§117.315, 117.323, or 117.9800 of this title (relating to Alternative Plant-Wide Emission Specifications; Source Cap; and Use of Emission Credits for Compliance). (1) For purposes of this subchapter, the lower of any permit nitrogen oxides (NOX ) emission limit in effect on June 9, 1993, under a permit issued in accordance with Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) and the emission specifications of subsections (b) - (d) of this section apply, except that: (A) gas-fired boilers and process heaters operating under a permit issued after March 3, 1982, with a NOX emission limit of 0.12 pounds per million British thermal units (lb/MMBtu) heat input, are limited to that rate for the purposes of this subchapter; and (B) gas-fired boilers and process heaters that have had NOX reduction projects permitted since November 15, 1990, and prior to June 9, 1993, that were solely for the purpose of making early NOX reductions, are subject to the appropriate emission specification of subsection (b) of this section. The affected person shall document that the NOX reduction project was solely for the purpose of obtaining early reductions, and include this documentation in the initial control plan required in §117.350 of this title (relating to Initial Control Plan Procedures). (2) For purposes of calculating NOX emission limitations under this section from existing permit limits, the following procedure must be used: (A) the NOX emission limit explicitly stated in lb/MMBtu of heat input by permit provision (converted from low heating value to high heating value, as necessary); or (B) the NOX emission limit is the limit calculated as the permit Maximum Allowable Emission Rate Table emission limit in pounds per hour, divided by the maximum heat input to the unit in million British thermal units per hour (MMBtu/hr), as represented in the permit application. In the event the maximum heat input to the unit is not explicitly stated in the permit application, the rate must be calculated from Table 6 of the permit application, using the design maximum fuel flow rate and higher heating value of the fuel, or, if neither of the above are available, the unit's nameplate heat input. (3) For any unit placed into service after June 9, 1993, and before the final compliance date as specified in §117.9020 of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources) as functionally identical replacement for an existing unit or group of units subject to the provisions of this chapter, the higher of any permit NOX emission limit under a permit issued after June 9, 1993, in accordance with Chapter 116 of this title and the emission limits of subsections (b) - (d) of this section applies. Any emission credits resulting from the operation of such replacement units are limited to the cumulative maximum rated capacity of the units replaced. The inclusion of such new units is an optional method for complying with the emission limitations of §117.315 or §117.323 of this title. Compliance with this paragraph does not eliminate the requirement for new units to comply with Chapter 116 of this title. (b) For each boiler and process heater with a maximum rated capacity greater than or equal to 100.0 MMBtu/hr of heat input, the applicable NOX emission specification is as follows: (1) gas-fired boilers, as follows: (A) low heat release boilers with no preheated air or preheated air less than 200 degrees Fahrenheit, 0.10 lb/MMBtu of heat input; (B) low heat release boilers with preheated air greater than or equal to 200 degrees Fahrenheit and less than 400 degrees Fahrenheit, 0.15 lb/MMBtu of heat input; (C) low heat release boilers with preheated air greater than or equal to 400 degrees Fahrenheit, 0.20 lb/MMBtu of heat input; (D) high heat release boilers with no preheated air or preheated air less than 250 degrees Fahrenheit, 0.20 lb/MMBtu of heat input; (E) high heat release boilers with preheated air greater than or equal to 250 degrees Fahrenheit and less than 500 degrees Fahrenheit, 0.24 lb/MMBtu of heat input; or (F) high heat release boilers with preheated air greater than or equal to 500 degrees Fahrenheit, 0.28 lb/MMBtu of heat input; (2) gas-fired process heaters, based on either air preheat temperature or firebox temperature, as follows: (A) based on air preheat temperature: (i) process heaters with preheated air less than 200 degrees Fahrenheit, 0.10 lb/MMBtu of heat input; (ii) process heaters with preheated air greater than or equal to 200 degrees Fahrenheit and less than 400 degrees Fahrenheit, 0.13 lb/MMBtu of heat input; or (iii) process heaters with preheated air greater than or equal to 400 degrees Fahrenheit, 0.18 lb/MMBtu of heat input; or (B) based on firebox temperature: (i) process heaters with a firebox temperature less than 1,400 degrees Fahrenheit, 0.10 lb/MMBtu of heat input; (ii) process heaters with a firebox temperature greater than or equal to 1,400 degrees Fahrenheit and less than 1,800 degrees Fahrenheit, 0.125 lb/MMBtu of heat input; or (iii) process heaters with a firebox temperature greater than or equal to 1,800 degrees Fahrenheit, 0.15 lb/MMBtu of heat input; (3) liquid fuel-fired boilers and process heaters, 0.30 lb/MMBtu of heat input; (4) wood fuel-fired boilers and process heaters, 0.30 lb/MMBtu of heat input; (5) any unit operated with a combination of gaseous, liquid, or wood fuel, a variable emission limit calculated as the heat input weighted sum of the applicable emission limits of this subsection; (6) for any gas-fired boiler or process heater firing gaseous fuel that contains more than 50% hydrogen by volume, over an eight-hour period, in which the fuel gas composition is sampled and analyzed every three hours, a multiplier of up to 1.25 times the appropriate emission limit in this subsection may be used for that eight-hour period. The total hydrogen volume in all gaseous fuel streams will be divided by the total gaseous fuel flow volume to determine the volume percent of hydrogen in the fuel supply. The multiplier may not be used to increase limits set by permit. The following equation must be used by an owner or operator using a gas-fired boiler or process heater that is subject to this paragraph and one of the rolling 30-day averaging period emission limitations contained in paragraph (1) or (2) of this subsection to calculate an emission limitation for each rolling 30-day period: Attached Graphic(7) for units that operate with a NO X continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) under §117.340 of this title (relating to Continuous Demonstration of Compliance), the emission specifications apply as: (A) the mass of NOX emitted per unit of energy input (lb/MMBtu), on a rolling 30-day average period; or (B) the mass of NOX emitted per hour (pounds per hour), on a block one-hour average, calculated as the product of the boiler's or process heater's maximum rated capacity and its applicable specification in lb/MMBtu; and (8) for units that do not operate with a NO X CEMS or PEMS under §117.340 of this title, the emission specifications apply in pounds per hour, as specified in paragraph (7)(B) of this subsection. (c) No person shall allow the discharge into the atmosphere from any stationary gas turbine with a megawatt (MW) rating greater than or equal to 10.0 MW, emissions in excess of a block one-hour average concentration of 42 parts per million by volume (ppmv) NOX and 132 ppmv carbon monoxide (CO) at 15% oxygen (O2), dry basis. For stationary gas turbines equipped with CEMS or PEMS for CO, the owner or operator may elect to comply with the CO emission specification of this subsection using a 24-hour rolling average. (d) No person shall allow the discharge into the atmosphere from any gas-fired, rich-burn, stationary, reciprocating internal combustion engine rated 150 horsepower (hp) or greater, NOX emissions in excess of a block one-hour average of 2.0 grams per horsepower-hour (g/hp-hr) and CO emissions is excess of a block one-hour average of 3.0 g/hp-hr. (e) No person shall allow the discharge into the atmosphere from any boiler or process heater subject to NOX emission specifications in subsection (a) or (b) of this section, CO emissions in excess of the following limitations: (1) for gas or liquid fuel-fired boilers or process heaters, 400 ppmv at 3.0% O2, dry basis; (2) for wood fuel-fired boilers or process heaters, 775 ppmv at 7.0% O2, dry basis; and (3) for units equipped with CEMS or PEMS for CO, the limits of paragraphs (1) and (2) of this subsection apply on a rolling 24-hour averaging period. For units not equipped with CEMS or PEMS for CO, the specifications apply on a one-hour average. (f) No person shall allow the discharge into the atmosphere from any unit subject to a NOX emission specification in this section (including an alternative to the NO X limit in this section under §117.315 or §117.323 of this title) ammonia emissions in excess of 20 ppmv based on a block one-hour averaging period. (g) This section no longer applies after the appropriate compliance date(s) for emission specifications for attainment demonstration given in §117.9020(2) of this title. For purposes of this subsection, this means that the RACT emission specifications of this section remain in effect until the emissions allocation for a unit under the Houston-Galveston-Brazoria mass emissions cap are equal to or less than the allocation that would be calculated using the RACT emission specifications of this section.</content><note type="source"><p>Source Note: The provisions of this §117.305 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.310"><num value="117.310">§117.310</num><heading>Emission Specifications for Attainment Demonstration</heading><content>(a) Emission specifications for the Mass Emission Cap and Trade Program. The nitrogen oxides (NOX ) emission rate values used to determine allocations for Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program) must be the lower of any applicable permit limit in a permit issued before January 2, 2001; any permit issued on or after January 2, 2001, that the owner or operator submitted an application determined to be administratively complete by the executive director before January 2, 2001; any limit in a permit by rule under which construction commenced by January 2, 2001; or the following emission specifications:(1) gas-fired boilers:(A) with a maximum rated capacity equal to or greater than 100 million British thermal units per hour (MMBtu/hr), 0.020 pounds per million British thermal units (lb/MMBtu);(B) with a maximum rated capacity equal to or greater than 40 MMBtu/hr, but less than 100 MMBtu/hr, 0.030 lb/MMBtu; and(C) with a maximum rated capacity less than 40 MMBtu/hr, 0.036 lb/MMBtu (or alternatively, 30 parts per million by volume (ppmv) NOX , at 3.0% oxygen (O 2 ), dry basis);(2) fluid catalytic cracking units (including carbon monoxide (CO) boilers, CO furnaces, and catalyst regenerator vents), one of the following:(A) 40 ppmv NOX at 0.0% O2 , dry basis;(B) a 90% NOX reduction of the exhaust concentration used to calculate the June - August 1997 daily NOX emissions. To ensure that this emission specification will result in a real 90% reduction in actual emissions, a consistent methodology must be used to calculate the 90% reduction; or(C) alternatively, for units that did not use a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) to determine the June - August 1997 exhaust concentration, the owner or operator may:(i) install and certify a NOX CEMS or PEMS as specified in §117.340(f) or (g) of this title (relating to Continuous Demonstration of Compliance) no later than June 30, 2001;(ii) establish the baseline NOX emission level to be the third quarter 2001 data from the CEMS or PEMS;(iii) provide this baseline data to the executive director no later than October 31, 2001; and(iv) achieve a 90% NOX reduction of the exhaust concentration established in this baseline;(3) boilers and industrial furnaces (BIF units) that were regulated as existing facilities in 40 Code of Federal Regulations (CFR) Part 266, Subpart H (as was in effect on June 9, 1993):(A) with a maximum rated capacity equal to or greater than 100 MMBtu/hr, 0.015 lb/MMBtu; and(B) with a maximum rated capacity less than 100 MMBtu/hr:(i) 0.030 lb/MMBtu; or(ii) an 80% reduction from the emission factor used to calculate the June - August 1997 daily NOX emissions. To ensure that this emission specification will result in a real 80% reduction in actual emissions, a consistent methodology must be used to calculate the 80% reduction;(4) coke-fired boilers, 0.057 lb/MMBtu;(5) wood fuel-fired boilers, 0.060 lb/MMBtu;(6) rice hull-fired boilers, 0.089 lb/MMBtu;(7) liquid-fired boilers, 2.0 pounds per 1,000 gallons of liquid burned;(8) process heaters:(A) other than pyrolysis reactors:(i) with a maximum rated capacity equal to or greater than 40 MMBtu/hr, 0.025 lb/MMBtu; and(ii) with a maximum rated capacity less 40 MMBtu/hr, 0.036 lb/MMBtu (or alternatively, 30 ppmv NOX , at 3.0% O2 , dry basis); and(B) pyrolysis reactors, 0.036 lb/MMBtu;(9) stationary, reciprocating internal combustion engines: (A) gas-fired rich-burn engines:(i) fired on landfill gas, 0.60 grams per horsepower-hour (g/hp-hr); and(ii) all others, 0.50 g/hp-hr;(B) gas-fired lean-burn engines, except as specified in subparagraph (C) of this paragraph:(i) fired on landfill gas, 0.60 g/hp-hr; and(ii) all others, 0.50 g/hp-hr;(C) dual-fuel engines:(i) with initial start of operation on or before December 31, 2000, 5.83 g/hp-hr; and(ii) with initial start of operation after December 31, 2000, 0.50 g/hp-hr; and(D) diesel engines, excluding dual-fuel engines, placed into service before October 1, 2001, that have not been modified, reconstructed, or relocated on or after October 1, 2001, the lower of 11.0 g/hp-hr or the emission rate established by testing, monitoring, manufacturer's guarantee, or manufacturer's other data. For the purposes of this subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title (relating to General Definitions) and 40 CFR §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title (relating to Definitions), a used engine from anywhere outside that account; and(E) for diesel engines, excluding dual-fuel engines, not subject to subparagraph (D) of this paragraph:(i) with a horsepower rating of less than 11 horsepower (hp) that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2004, 7.0 g/hp-hr; and(II) on or after October 1, 2004, 5.0 g/hp-hr;(ii) with a horsepower rating of 11 hp or greater, but less than 25 hp, that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2004, 6.3 g/hp-hr; and(II) on or after October 1, 2004, 5.0 g/hp-hr;(iii) with a horsepower rating of 25 hp or greater, but less than 50 hp, that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2003, 6.3 g/hp-hr; and(II) on or after October 1, 2003, 5.0 g/hp-hr;(iv) with a horsepower rating of 50 hp or greater, but less than 100 hp, that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2003, 6.9 g/hp-hr;(II) on or after October 1, 2003, but before October 1, 2007, 5.0 g/hp-hr; and(III) on or after October 1, 2007, 3.3 g/hp-hr;(v) with a horsepower rating of 100 hp or greater, but less than 175 hp, that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2002, 6.9 g/hp-hr;(II) on or after October 1, 2002, but before October 1, 2006, 4.5 g/hp-hr; and(III) on or after October 1, 2006, 2.8 g/hp-hr;(vi) with a horsepower rating of 175 hp or greater, but less than 300 hp, that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2002, 6.9 g/hp-hr;(II) on or after October 1, 2002, but before October 1, 2005, 4.5 g/hp-hr; and(III) on or after October 1, 2005, 2.8 g/hp-hr;(vii) with a horsepower rating of 300 hp or greater, but less than 600 hp, that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2005, 4.5 g/hp-hr; and(II) on or after October 1, 2005, 2.8 g/hp-hr;(viii) with a horsepower rating of 600 hp or greater, but less than or equal to 750 hp, that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2005, 4.5 g/hp-hr; and(II) on or after October 1, 2005, 2.8 g/hp-hr; and(ix) with a horsepower rating of 750 hp or greater that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2005, 6.9 g/hp-hr; and(II) on or after October 1, 2005, 4.5 g/hp-hr;(10) stationary gas turbines:(A) rated at 10.0 megawatts (MW) or greater, 0.032 lb/MMBtu;(B) rated at 1.0 MW or greater, but less than 10.0 MW, 0.15 lb/MMBtu; and(C) rated at less than 1.0 MW, 0.26 lb/MMBtu;(11) duct burners used in turbine exhaust ducts, the corresponding gas turbine emission specification of paragraph (10) of this subsection;(12) pulping liquor recovery furnaces, either:(A) 0.050 lb/MMBtu; or(B) 1.08 pounds per air-dried ton of pulp;(13) kilns:(A) lime kilns, 0.66 pounds per ton of calcium oxide; and(B) lightweight aggregate kilns, 1.25 pounds per ton of product;(14) metallurgical furnaces:(A) heat treating furnaces, 0.087 lb/MMBtu; and(B) reheat furnaces, 0.062 lb/MMBtu;(15) magnesium chloride fluidized bed dryers, a 90% reduction from the emission factor used to calculate the 1997 ozone season daily NOX emissions;(16) incinerators, either of the following:(A) an 80% reduction from the emission factor used to calculate the June - August 1997 daily NOX emissions. To ensure that this emission specification will result in a real 80% reduction in actual emissions, a consistent methodology must be used to calculate the 80% reduction; or(B) 0.030 lb/MMBtu; and(17) as an alternative to the emission specifications in paragraphs (1) - (16) of this subsection for units with an annual capacity factor of 0.0383 or less, 0.060 lb/MMBtu. For units placed into service on or before January 1, 1997, the 1997 - 1999 average annual capacity factor must be used to determine whether the unit is eligible for the emission specification of this paragraph. For units placed into service after January 1, 1997, the annual capacity factor must be calculated from two consecutive years in the first five years of operation to determine whether the unit is eligible for the emission specification of this paragraph, using the same two consecutive years chosen for the activity level baseline. The five-year period begins at the end of the adjustment period as defined in §101.350 of this title (relating to Definitions).(b) NOX averaging time. The averaging time for the emission specifications of subsection (a) of this section must be as specified in Chapter 101, Subchapter H, Division 3 of this title, except that electric generating facilities (EGFs) must also comply with the daily and 30-day system cap emission limitations of §117.320 of this title (relating to System Cap).(c) Related emissions. No person shall allow the discharge into the atmosphere from any unit subject to subsection (a) of this section, emissions in excess of the following, except as provided in §117.325 of this title (relating to Alternative Case Specific Specifications) or paragraph (3) or (4) of this subsection.(1) CO emissions must not exceed 400 ppmv at 3.0% O2 , dry basis (or alternatively, 3.0 g/hp-hr for stationary internal combustion engines; or 775 ppmv at 7.0% O2 , dry basis for wood fuel-fired boilers or process heaters):(A) on a rolling 24-hour averaging period, for units equipped with CEMS or PEMS for CO; and(B) on a one-hour average, for units not equipped with CEMS or PEMS for CO.(2) For units that inject urea or ammonia into the exhaust stream for NOX control, ammonia emissions must not exceed 10 ppmv at 3.0% O2 , dry, for boilers and process heaters; 15% O2 , dry, for stationary gas turbines (including duct burners used in turbine exhaust ducts), gas-fired lean-burn engines, lightweight aggregate kilns, and diesel engines; 0.0% O2 , dry, for fluid catalytic cracking units (including CO boilers, CO furnaces, and catalyst regenerator vents); 7.0% O2 , dry, for BIF units that were regulated as existing facilities in 40 CFR Part 266, Subpart H (as was in effect on June 9, 1993), wood-fired boilers, and incinerators; and 3.0% O2 , dry, for all other units, based on:(A) a block one-hour averaging period for units not equipped with a CEMS or PEMS for ammonia; or(B) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for ammonia.(3) The correction of CO emissions to 3.0% O2 , dry basis, in paragraph (1) of this subsection does not apply to the following units:(A) lightweight aggregate kilns; and(B) boilers and process heaters operating at less than 10% of maximum load and with stack O2 in excess of 15% (i.e., hot-standby mode).(4) The CO limits in paragraph (1) of this subsection do not apply to the following units:(A) BIF units that were regulated as existing facilities in 40 CFR Part 266, Subpart H (as was in effect on June 9, 1993) and that are subject to subsection (a)(3) of this section; and(B) incinerators subject to the CO limits of one of the following:(i) §111.121 of this title (relating to Single-, Dual-, and Multiple-Chamber Incinerators);(ii) §113.2072 of this title (relating to Emission Limits) for hospital/medical/infectious waste incinerators; or(iii) 40 CFR Part 264 or 265, Subpart O, for hazardous waste incinerators.(d) Compliance flexibility.(1) Section 117.325 of this title is not an applicable method of compliance with the NOX emission specifications of this section.(2) An owner or operator may petition the executive director for an alternative to the CO or ammonia specifications of this section in accordance with §117.325 of this title.(3) An owner or operator may not use the alternative methods specified in §§117.315, 117.323, and 117.9800 of this title (relating to Alternative Plant-Wide Emission Specifications; Source Cap; and Use of Emission Credits for Compliance) to comply with the NOX emission specifications of this section. The owner or operator shall use the mass emissions cap and trade program in Chapter 101, Subchapter H, Division 3 of this title to comply with the NOX emission specifications of this section, except that electric generating facilities must also comply with the daily and 30-day system cap emission limitations of §117.320 of this title. An owner or operator may use the alternative methods specified in §117.9800 of this title for purposes of complying with §117.320 of this title.(e) Prohibition of circumvention:(1) the maximum rated capacity used to determine the applicability of the emission specifications in subsection (a) of this section and the initial control plan, compliance demonstration, monitoring, testing requirements, and final control plan in §§117.335, 117.340, 117.350, and 117.354 of this title (relating to Initial Demonstration of Compliance; Continuous Demonstration of Compliance; Initial Control Plan Procedures; and Final Control Plan Procedures for Attainment Demonstration Emission Specifications) must be:(A) the greater of the following:(i) the maximum rated capacity as of December 31, 2000; or(ii) the maximum rated capacity after December 31, 2000; or(B) alternatively, the maximum rated capacity authorized by a permit issued under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) on or after January 2, 2001, that the owner or operator submitted an application determined to be administratively complete by the executive director before January 2, 2001, provided that the maximum rated capacity authorized by the permit issued on or after January 2, 2001, is no less than the maximum rated capacity represented in the permit application as of January 2, 2001;(2) a unit's classification is determined by the most specific classification applicable to the unit as of December 31, 2000. For example, a unit that is classified as a boiler as of December 31, 2000, but subsequently is authorized to operate as a BIF unit, is classified as a boiler for the purposes of this chapter. In another example, a unit that is classified as a stationary gas-fired engine as of December 31, 2000, but subsequently is authorized to operate as a dual-fuel engine, is classified as a stationary gas-fired engine for the purposes of this chapter;(3) changes after December 31, 2000, to a unit subject to subsection (a) of this section (ESAD unit) that result in increased NOX emissions from a unit not subject to subsection (a) of this section (non-ESAD unit), such as redirecting one or more fuel or waste streams containing chemical-bound nitrogen to an incinerator with a maximum rated capacity of less than 40 MMBtu/hr or a flare, is only allowed if:(A) the increase in NOX emissions at the non-ESAD unit is determined using a CEMS or PEMS that meets the requirements of §117.340(f) or (g) of this title, or through stack testing that meets the requirements of §117.335(e) of this title; and(B) a deduction in allowances equal to the increase in NOX emissions at the non-ESAD unit is made as specified in §101.354 of this title (relating to Allowance Deductions);(4) a source that met the definition of major source on December 31, 2000, is always classified as a major source for purposes of this chapter. A source that did not meet the definition of major source (i.e., was a minor source, or did not yet exist) on December 31, 2000, but at any time after December 31, 2000, becomes a major source, is from that time forward always classified as a major source for purposes of this chapter; and(5) the availability under subsection (a)(17) of this section of an emission specification for units with an annual capacity factor of 0.0383 or less is based on the unit's status on December 31, 2000. Reduced operation after December 31, 2000, cannot be used to qualify for a more lenient emission specification under subsection (a)(17) of this section than would otherwise apply to the unit.(f) Operating restrictions. No person shall start or operate any stationary diesel or dual-fuel engine for testing or maintenance between the hours of 6:00 a.m. and noon, except:(1) for specific manufacturer's recommended testing requiring a run of over 18 consecutive hours;(2) to verify reliability of emergency equipment (e.g., emergency generators or pumps) immediately after unforeseen repairs. Routine maintenance such as an oil change is not considered to be an unforeseen repair; or(3) firewater pumps for emergency response training conducted in the months of April through October.</content><note type="source"><p>Source Note: The provisions of this §117.310 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.315"><num value="117.315">§117.315</num><heading>Alternative Plant-Wide Emission Specifications</heading><content>(a) An owner or operator may achieve compliance with the nitrogen oxides (NOX ) emission limits of §117.305 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) or §117.310 of this title (relating to Emission Specifications for Attainment Demonstration) by achieving equivalent NOX emission reductions obtained by compliance with a plant-wide emission specification. Any owner or operator who elects to comply with a plant-wide emission specification shall reduce emissions of NOX from affected units so that if all such units were operated at their maximum rated capacity, the plant-wide emission rate of NOX from these units would not exceed the plant-wide emission specification as defined in §117.10 of this title (relating to Definitions). (b) The owner or operator shall establish an enforceable NOX emission limit for each affected unit at the source as follows. (1) For boilers and process heaters that operate with a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) in accordance with §117.340 of this title (relating to Continuous Demonstration of Compliance), the emission specifications apply in: (A) the units of the applicable standard (the mass of NOX emitted per unit of energy input (pounds per million British thermal units (lb/MMBtu) or parts per million by volume (ppmv)), on a rolling 30-day average period; or (B) as the mass of NOX emitted per hour (pounds per hour), on a block one-hour average. (2) For boilers and process heaters that do not operate with CEMS or PEMS, the emission specifications apply as the mass of NO X emitted per hour (pounds per hour), on a block one-hour average. (3) For stationary gas turbines, the emission specifications apply as the NOX concentration in ppmv at 15% oxygen (O2), dry basis on a block one-hour average. (4) For stationary internal combustion engines, the NOX emission specifications apply in units of grams per horsepower-hour (g/hp-hr) on a block one-hour average. (c) An owner or operator of any gaseous and liquid fuel-fired unit that derives more than 50% of its annual heat input from gaseous fuel shall use only the appropriate gaseous fuel emission limit of §117.305 or §117.310 of this title at maximum rated capacity in calculating the plant-wide emission specification and shall assign to the unit the maximum allowable NOX emission rate while firing gas, calculated in accordance with subsection (a) of this section. The owner or operator shall also: (1) comply with the assigned maximum allowable emission rate while firing gas only; (2) comply with the liquid fuel emission limit of §117.305 of this title while firing liquid fuel only; and (3) comply with a limit calculated as the actual heat input weighted sum of the assigned gas-firing allowable emission rate and the liquid fuel emission limit of §117.305 of this title while operating on liquid and gaseous fuel concurrently. (d) An owner or operator of any gaseous and liquid fuel-fired unit that derives more than 50% of its annual heat input from liquid fuel shall use a heat input weighted sum of the appropriate gaseous and liquid fuel emission specifications of §117.305 or §117.310 of this title in calculating the plant-wide emission specification and shall assign to the unit the maximum allowable NOX emission rate, calculated in accordance with subsection (a) of this section. (e) An owner or operator of any unit operated with a combination of gaseous (or liquid) and solid fuels shall use a heat input weighted sum of the appropriate emission specifications of §117.305 of this title in calculating the plant-wide emission specification and shall assign to the unit the maximum allowable NOX emission rate, calculated in accordance with subsection (a) of this section. (f) Units exempted from emission specifications in accordance with §117.303(b) of this title (relating to Exemptions) are also exempt under this section and must not be included in the plant-wide emission specification, except as follows. The owner or operator of exempted units as defined in §117.303(b) of this title may opt to include one or more of an entire equipment class of exempted units into the alternative plant-wide emission specifications. (1) Low annual capacity factor boilers, process heaters, stationary gas turbines, or stationary internal combustion engines as defined in §117.10 of this title are not to be considered as part of the opt-in class of equipment. (2) The ammonia and carbon monoxide (CO) emission specifications of §117.305 or §117.310 of this title apply to the opt-in units. (3) The individual NOX emission limit that is to be used in calculating the alternative plant-wide emission specifications is the lowest of any applicable permit emission specification determined in accordance with §117.305(a) of this title or the specification of paragraph (4) of this subsection. (4) The equipment classes that may be included in the alternative plant-wide emission specifications and the NOX emission rates that are to be used in calculating the alternative plant-wide emission specifications are listed in the table titled §117.315(f) OPT-IN UNITS. Attached Graphic(g) Solely for the purposes of calculating the plant-wide emission specification, the allowable NOX emission rate (in pounds per hour) for each affected unit must be calculated from the emission specifications of §117.305 of this title, as follows. (1) For each affected boiler and process heater, the rate is determined by the following equation. Attached Graphic(2) For each affected stationary internal combustion engine, the rate is determined by the following equation. Attached Graphic(3) For each affected stationary gas turbine, the rate is determined by the following equations. Attached Graphic(4) Each affected gas-fired boiler and process heater firing gaseous fuel that contains more than 50% hydrogen (H 2) by volume, on an annual basis, may be adjusted with a multiplier of up to 1.25 times the product of its maximum rated capacity and its NOX emission specification of §117.305 of this title. (A) Double application of the H2 content multiplier using this paragraph and §117.305(b)(6) of this title is not allowed. (B) The multiplier may not be used to increase a limit set by permit. (C) The fuel gas composition must be sampled and analyzed every three hours. (D) This paragraph is not applicable for establishing compliance with §117.310 of this title. (h) The owner or operator of any gas-fired boiler or process heater firing gaseous fuel that contains more than 50% H 2 by volume, over an eight-hour period, in which the fuel gas composition is sampled and analyzed every three hours, may use a multiplier of up to 1.25 times the emission limit assigned to the unit in this section for that eight-hour period. The total H2 volume in all gaseous fuel streams will be divided by the total gaseous fuel flow volume to determine the volume percent of H2 in the fuel supply. This subsection is not applicable to: (1) units under subsection (g)(4) of this section; (2) increase limits set by permit; or (3) establish compliance with §117.310 of this title. (i) This section no longer applies after the appropriate compliance date(s) for emission specifications for attainment demonstration given in §117.9020(2) of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources). For purposes of this subsection, this means that the alternative plant-wide emission specifications of this section remain in effect until the emissions allocation for units under the Houston-Galveston-Brazoria mass emissions cap are equal to or less than the allocation that would be calculated using the alternative plant-wide emission specifications of this section.</content><note type="source"><p>Source Note: The provisions of this §117.315 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.320"><num value="117.320">§117.320</num><heading>System Cap</heading><content>(a) The owner or operator of any electric generating facility (EGF) shall comply with a daily and 30-day system cap emission limitation for nitrogen oxides (NOX ) in accordance with the requirements of this section. Each EGF in the system cap must be subject to the daily cap and appropriate 30-day cap of this section at all times. An EGF is not subject to this section if electric output is entirely dedicated to industrial customers. "Entirely dedicated" may include up to two weeks per year of service to the electric grid when the industrial customers' load sources are not operating. Alternatively, an EGF that generates electricity primarily for internal use, but that during 1997 and all subsequent calendar years transferred (or will transfer) that generated electricity to a utility power distribution system at a rate less than 3.85% of its actual electrical generation is not subject to the requirements of this section. (b) Each EGF that is subject to §117.310 of this title (relating to Emission Specifications for Attainment Demonstration) must be included in the system cap. (c) The system cap must be calculated as follows. (1) A rolling 30-day average emission cap applicable during the months of July, August, and September must be calculated using the following equation. Attached Graphic(2) A rolling 30-day average emission cap applicable during all months other than July, August, and September must be calculated using the following equation. Attached Graphic(3) A maximum daily cap must be calculated using the following equation. Attached Graphic(d) The NOX emissions monitoring required by §117.340 of this title (relating to Continuous Demonstration of Compliance) for each EGF in the system cap must be used to demonstrate continuous compliance with the system cap. (e) For each operating EGF, the owner or operator shall use one of the following methods to provide substitute emissions compliance data during periods when the NOX monitor is off-line: (1) if the NOX monitor is a continuous emissions monitoring system (CEMS): (A) subject to 40 Code of Federal Regulations (CFR) 75, use the missing data procedures specified in 40 CFR 75, Subpart D (Missing Data Substitution Procedures); or (B) subject to 40 CFR 75, Appendix E, use the missing data procedures specified in 40 CFR 75, Appendix E, §2.5 (Missing Data Procedures); (2) use Appendix E monitoring in accordance with §117.1240(e) of this title (relating to Continuous Demonstration of Compliance); (3) if the NOX monitor is a predictive emissions monitoring system (PEMS): (A) use the methods specified in 40 CFR 75, Subpart D; or (B) use calculations in accordance with §117.8110(b) of this title (relating to Emission Monitoring System Requirements for Utility Electric Generation Sources); or (4) use the maximum block one-hour emission rate as measured by the 30-day testing. (f) The owner or operator of any EGF subject to a system cap shall maintain daily records indicating the NOX emissions and fuel usage from each EGF and summations of total NO X emissions and fuel usage for all EGFs under the system cap on a daily basis. Records must also be retained in accordance with §117.345 of this title (relating to Notification, Recordkeeping, and Reporting Requirements). (g) The owner or operator of any EGF subject to a system cap shall report any exceedance of the system cap emission limit within 48 hours to the appropriate regional office. The owner or operator shall then follow up within 21 days of the exceedance with a written report to the regional office that includes an analysis of the cause for the exceedance with appropriate data to demonstrate the amount of emissions in excess of the applicable limit and the necessary corrective actions taken by the company to assure future compliance. Additionally, the owner or operator shall submit semiannual reports for the monitoring systems in accordance with §117.345 of this title. (h) The owner or operator of any EGF subject to a system cap shall demonstrate initial compliance with the system cap in accordance with the schedule specified in §117.9020 of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources). (i) An EGF that is permanently retired or decommissioned and rendered inoperable may be included in the system cap emission limit, provided that the permanent shutdown occurred after January 1, 2000. The system cap emission limit is calculated in accordance with subsection (b) of this section. (j) Emission reductions from shutdowns or curtailments that have been used for netting or offset purposes under the requirements of Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) may not be included in the baseline for establishing the cap. (k) For the purposes of determining compliance with the system cap emission limit, the contribution of each affected EGF that is operating during a startup, shutdown, or emissions event as defined in §101.1 of this title (relating to Definitions) must be calculated from the NO X emission rate measured by the NOX monitor, if operating properly. If the NOX monitor is not operating properly, the substitute data procedures identified in subsection (e) of this section must be used. If neither the NO X monitor nor the substitute data procedure are operating properly, the owner or operator shall use the maximum daily rate measured during the initial demonstration of compliance, unless the owner or operator provides data demonstrating to the satisfaction of the executive director and the United States Environmental Protection Agency that actual emissions were less than maximum emissions during such periods.</content><note type="source"><p>Source Note: The provisions of this §117.320 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.323"><num value="117.323">§117.323</num><heading>Source Cap</heading><content>(a) An owner or operator may achieve compliance with the nitrogen oxides (NOX ) emission limits of §117.305 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) by achieving equivalent NO X emission reductions obtained by compliance with a source cap emission limitation in accordance with the requirements of this section. Each equipment category at a source whose individual emission units would otherwise be subject to the NOX emission limits of §117.305 of this title may be included in the source cap. Any equipment category included in the source cap must include all emission units belonging to that category. Equipment categories include, but are not limited to, the following: steam generation, electrical generation, and units with the same product outputs, such as ethylene cracking furnaces. All emission units not included in the source cap must comply with the requirements of §117.305 or §117.315 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT) and Alternative Plant-Wide Emission Specifications). (b) The source cap allowable mass emission rate must be calculated as follows. (1) A rolling 30-day average emission cap must be calculated for all emission units included in the source cap using the following equation. Attached Graphic(2) A maximum daily cap must be calculated for all emission units included in the source cap using the following equation. Attached Graphic(3) Each emission unit included in the source cap must be subject to the requirements of both paragraphs (1) and (2) of this subsection at all times. (4) The owner or operator at its option may include any of the entire classes of exempted units listed in §117.315(f) of this title in a source cap. For compliance with §117.305(a) - (d) of this title, such units are required to reduce emissions available for use in the cap by an additional amount calculated in accordance with the United States Environmental Protection Agency's proposed Economic Incentive Program rules for offset ratios for trades between RACT and non-RACT sources, as published in the February 23, 1993, Federal Register (58 FR 11110). (5) For stationary internal combustion engines, the source cap allowable emission rate must be calculated in pounds per hour using the procedures specified in §117.315(g)(2) of this title. (6) For stationary gas turbines, the source cap allowable emission rate must be calculated in pounds per hour using the procedures specified in §117.315(g)(3) of this title. (c) The owner or operator who elects to comply with this section shall: (1) for each unit included in the source cap, either: (A) install, calibrate, maintain, and operate a continuous exhaust NOX monitor, carbon monoxide (CO) monitor, an oxygen (O2) (or carbon dioxide (CO 2)) diluent monitor, and a totalizing fuel flow meter in accordance with the requirements of §117.340 of this title (relating to Continuous Demonstration of Compliance). The required continuous emissions monitoring systems (CEMS) and fuel flow meters must be used to measure NO X , CO, and O2 (or CO 2 ) emissions and fuel use for each affected unit and must be used to demonstrate continuous compliance with the source cap; (B) install, calibrate, maintain, and operate a predictive emissions monitoring system (PEMS) and a totalizing fuel flow meter in accordance with the requirements of §117.340 of this title. The required PEMS and fuel flow meters must be used to measure NOX , CO, and O2 (or CO2) emissions and fuel flow for each affected unit and must be used to demonstrate continuous compliance with the source cap; or (C) for units not subject to continuous monitoring requirements and units belonging to the equipment classes listed in §117.315(f) of this title, the owner or operator may use the maximum emission rate as measured by hourly emission rate testing conducted in accordance with §117.335(e) of this title (relating to Initial Demonstration of Compliance) in lieu of CEMS or PEMS. Emission rates for these units are limited to the maximum emission rates obtained from testing conducted under §117.335(e) of this title; and (2) for each operating unit equipped with CEMS, the owner or operator shall either use a PEMS in accordance with §117.340 of this title, or the maximum emission rate as measured by hourly emission rate testing conducted in accordance with §117.335(e) of this title, to provide emissions compliance data during periods when the CEMS is off-line. The methods specified in 40 CFR §75.46 must be used to provide emissions substitution data for units equipped with PEMS. (d) The owner or operator of any units subject to a source cap shall maintain daily records indicating the NOX emissions from each source and the total fuel usage for each unit and include a total NOX emissions summation and total fuel usage for all units under the source cap on a daily basis. Records must also be retained in accordance with §117.345 of this title (relating to Notification, Recordkeeping, and Reporting Requirements). (e) The owner or operator of any units operating under this provision shall report any exceedance of the source cap emission limit within 48 hours to the appropriate regional office. The owner or operator shall then follow up within 21 days of the exceedance with a written report that includes an analysis of the cause for the exceedance with appropriate data to demonstrate the amount of emissions in excess of the applicable limit and the necessary corrective actions taken by the company to assure future compliance. Additionally, the owner or operator shall submit semiannual reports for the monitoring systems in accordance with §117.345 of this title. (f) The owner or operator shall demonstrate initial compliance with the source cap in accordance with the schedule specified in §117.9020(1) of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources). (g) For compliance with §117.305(a) - (d) of this title by November 15, 1999, a unit that has operated since November 15, 1990, and has since been permanently retired or decommissioned and rendered inoperable prior to June 9, 1993, may be included in the source cap emission limit under the following conditions. (1) The unit must have actually operated since November 15, 1990. (2) For purposes of calculating the source cap emission limit, the applicable emission limit for retired units must be calculated in accordance with subsection (b) of this section. (3) The actual heat input must be calculated according to subsection (b)(1) of this section. If the unit was not in service 24 consecutive months between January 1, 1990, and June 9, 1993, the actual heat input must be the average daily heat input for the continuous time period that the unit was in service, plus one standard deviation of the average daily heat input for that period. The maximum heat input must be the maximum heat input, as certified to the executive director, allowed or possible (whichever is lower) in a 24-hour period. (4) The owner or operator shall certify the unit's operational level and maximum rated capacity. (5) Emission reductions from shutdowns or curtailments that have not been used for netting or offset purposes under the requirements of Chapter 116 of this title or have not resulted from any other state or federal requirement may be included in the baseline for establishing the cap. (h) A unit that has been shut down and rendered inoperable after June 9, 1993, but not permanently retired, should be identified in the initial control plan and may be included in the source cap to comply with the NOX emission specifications of this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources) required by November 15, 1999. (i) An owner or operator who chooses to use the source cap option shall include in the initial control plan, if required to be filed under §117.350 of this title (relating to Initial Control Plan Procedures), a plan for initial compliance. The owner or operator shall include in the initial control plan the identification of the election to use the source cap procedure as specified in this section to achieve compliance with this section and shall specifically identify all sources that will be included in the source cap. The owner or operator shall also include in the initial control plan the method of calculating the actual heat input for each unit included in the source cap, as specified in subsection (b)(1) of this section. An owner or operator who chooses to use the source cap option shall include in the final control plan procedures of §117.352 of this title (relating to Final Control Plan Procedures for Reasonably Available Control Technology) the information necessary under this section to demonstrate initial compliance with the source cap. (j) For the purposes of determining compliance with the source cap emission limit, the contribution of each affected unit that is operating during a startup, shutdown, or emissions event as defined in §101.1 of this title (relating to Definitions) must be calculated from the NO X emission rate, as measured by the initial demonstration of compliance, for that unit, unless the owner or operator provides data demonstrating to the satisfaction of the executive director that actual emissions were less than maximum emissions during such periods. (k) This section no longer applies after the appropriate compliance date(s) for emission specifications for attainment demonstration given in §117.9020(2) of this title. For purposes of this paragraph, this means that the source cap of this section remains in effect until the emissions allocation for units under the Houston-Galveston-Brazoria mass emissions cap are equal to or less than the allocation that would be calculated using the source cap of this section.</content><note type="source"><p>Source Note: The provisions of this §117.323 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.325"><num value="117.325">§117.325</num><heading>Alternative Case Specific Specifications</heading><content>(a) Where a person can demonstrate that an affected unit cannot attain the applicable requirements of §117.305 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) or the carbon monoxide (CO) or ammonia specifications of §117.310(c) of this title (relating to Emission Specifications for Attainment Demonstration), the executive director may approve emission specifications different from §117.305 of this title or the CO or ammonia specifications in §117.310(c) of this title for that unit. The executive director:(1) shall consider on a case-by-case basis the technological and economic circumstances of the individual unit;(2) shall determine that such specifications are the result of the lowest emission limitation the unit is capable of meeting after the application of controls to meet the nitrogen oxides emission specifications of §117.305 or §117.310 of this title, as applicable; and(3) in determining whether to approve alternative emission specifications, may take into consideration the ability of the plant where the unit is located to meet emission specifications through plant-wide averaging at maximum capacity.(b) Any owner or operator affected by the executive director's decision to deny an alternative case specific emission specification may file a motion to overturn the executive director's decision. The requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) apply. Executive director approval does not necessarily constitute satisfaction of all federal requirements nor eliminate the need for approval by the United States Environmental Protection Agency in cases where specified criteria for determining equivalency have not been clearly identified in applicable sections of this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources).</content><note type="source"><p>Source Note: The provisions of this §117.325 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.330"><num value="117.330">§117.330</num><heading>Operating Requirements</heading><content>(a) The owner or operator shall operate any unit subject to the emission specifications of §117.305 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) in compliance with those limitations. (b) The owner or operator shall operate any unit subject to the plant-wide emission specification of §117.315 of this title (relating to Alternative Plant-Wide Emission Specifications) such that the assigned maximum nitrogen oxides (NOX ) emission rate for each unit expressed in units of the applicable emission limit and averaging period, is in accordance with the list approved by the executive director pursuant to §117.352 of this title (relating to Final Control Plan Procedures for Reasonably Available Control Technology). (c) The owner or operator shall operate any unit subject to the source cap emission limits of §117.323 of this title (relating to Source Cap) in compliance with those limitations. (d) All units subject to the emission limitations of §§117.305, 117.315, or 117.323 of this title must be operated so as to minimize NOX emissions, consistent with the emission control techniques selected, over the unit's operating or load range during normal operations. Such operational requirements include the following. (1) Each boiler, except for wood-fired boilers, must be operated with oxygen (O2), carbon monoxide (CO), or fuel trim. (2) Each boiler and process heater controlled with forced flue gas recirculation (FGR) to reduce NOX emissions must be operated such that the proportional design rate of FGR is maintained, consistent with combustion stability, over the operating range. (3) Each boiler and process heater controlled with induced draft FGR to reduce NOX emissions must be operated such that the operation of FGR over the operating range is not restricted by artificial means. (4) Each unit controlled with steam or water injection must be operated such that injection rates are maintained to limit NO X concentrations to less than or equal to the NO X concentrations achieved at maximum rated capacity (corrected to 15% O2 on a dry basis for stationary gas turbines). (5) Each unit controlled with post-combustion control techniques must be operated such that the reducing agent injection rate is maintained to limit NOX concentrations to less than or equal to the NOX concentrations achieved at maximum rated capacity. (6) Each stationary internal combustion engine controlled with nonselective catalytic reduction must be equipped with an automatic air-fuel ratio (AFR) controller that operates on exhaust O2 or CO control and maintains AFR in the range required to meet the engine's applicable emission limits. (7) Each stationary internal combustion engine must be checked for proper operation of the engine according to §117.8140(b) of this title (relating to Emission Monitoring for Engines).</content><note type="source"><p>Source Note: The provisions of this §117.330 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.335"><num value="117.335">§117.335</num><heading>Initial Demonstration of Compliance</heading><content>(a) The owner or operator of any unit subject to §117.305 or §117.310 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT); and Emission Specifications for Attainment Demonstration) shall test the unit as follows. (1) The unit must be tested for nitrogen oxides (NO X ), carbon monoxide (CO), and oxygen emissions while firing gaseous fuel or, as applicable: (A) hydrogen (H2) fuel for units that may fire more than 50% H2 by volume; and (B) liquid and solid fuel. (2) Units that inject urea or ammonia into the exhaust stream for NOX control must be tested for ammonia emissions. (3) All units must be tested that belong to equipment classes elected to be included in: (A) the alternative plant-wide emission specifications as defined in §117.315(f) of this title (relating to Alternative Plant-Wide Emission Specifications); or (B) the source cap as defined in §117.323(b)(4) of this title (relating to Source Cap). (4) Initial demonstration of compliance testing must be performed in accordance with the schedule specified in §117.9020 of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources). (b) The initial demonstration of compliance tests required by subsection (a) of this section must use the methods referenced in subsection (e) or (f) of this section and must be used for determination of initial compliance with the requirements of this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources). Test results must be reported in the units of the applicable emission specification and averaging periods. (c) Any continuous emissions monitoring system (CEMS) or any predictive emissions monitoring system (PEMS) required by §117.340 of this title (relating to Continuous Demonstration of Compliance) must be installed and operational before conducting testing under subsection (a) of this section. Verification of operational status must, as a minimum, include completion of the initial relative accuracy test audit and the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device or system. (d) Early testing conducted before March 21, 1999, may be used to demonstrate compliance with the requirements of this division, if the owner or operator of an affected facility demonstrates to the executive director that the prior compliance testing at least meets the requirements of subsections (a), (b), (c), (e), and (f) of this section. For early testing, the compliance stack test report required by subsection (g) must be as complete as necessary to demonstrate to the executive director that the stack test was valid and the source has complied with the rule. The executive director reserves the right to request compliance testing or CEMS or PEMS performance evaluation at any time. (e) Compliance with the requirements of this division for units operating without CEMS or PEMS must be demonstrated according to the requirements of §117.8000 of this title (relating to Stack Testing Requirements). (f) Initial compliance with the requirements of this division for units operating with CEMS or PEMS in accordance with §117.340 of this title, must be demonstrated after monitor certification testing using the CEMS or PEMS as follows. (1) For boilers and process heaters complying with a NOX emission specification in pounds per million British thermal units on a rolling 30-day average, NOX emissions from the unit are monitored for 30 successive unit operating days and the 30-day average emission rate is used to determine compliance with the NOX emission specification. The 30-day average emission rate is calculated as the average of all hourly emissions data recorded by the monitoring system during the 30-day test period. (2) For units complying with a NOX emission specification on a block one-hour average, any one-hour period while operating at the maximum rated capacity, or as near thereto as practicable is used to determine compliance with the NOX emission specification. (3) For units complying with a CO emission specification, on a rolling 24-hour average, any 24-hour period is used to determine compliance with the CO emission specification. (4) For units complying with §117.323 of this title, a rolling 30-day average of total daily pounds of NOX emissions from the units are monitored (or calculated in accordance with §117.323(c) of this title) for 30 successive source operating days and the 30-day average emission rate is used to determine compliance with the NOX emission specification. The 30-day average emission rate is calculated as the average of all daily emissions data recorded by the monitoring and recording system during the 30-day test period. There must be no exceedances of the maximum daily cap during the 30-day test period. (g) Compliance stack test reports must include the information required in §117.8010 of this title (relating to Compliance Stack Test Reports).</content><note type="source"><p>Source Note: The provisions of this §117.335 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.340"><num value="117.340">§117.340</num><heading>Continuous Demonstration of Compliance</heading><content>(a) Totalizing fuel flow meters. The owner or operator of units listed in this subsection shall install, calibrate, maintain, and operate a totalizing fuel flow meter, with an accuracy of ± 5%, to individually and continuously measure the gas and liquid fuel usage. A computer that collects, sums, and stores electronic data from continuous fuel flow meters is an acceptable totalizer. The owner or operator of units with totalizing fuel flow meters installed prior to March 31, 2005, that do not meet the accuracy requirements of this subsection shall either recertify or replace existing meters to meet the ± 5% accuracy required as soon as practicable but no later than March 31, 2007. For the purpose of compliance with this subsection for units having pilot fuel supplied by a separate fuel system or from an unmonitored portion of the same fuel system, the fuel flow to pilots may be calculated using the manufacturer's design flow rates rather than measured with a fuel flow meter. The calculated pilot fuel flow rate must be added to the monitored fuel flow when fuel flow is totaled.(1) The units are the following:(A) for units that are subject to §117.305 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)), for stationary gas turbines that are exempt under §117.303(b)(7) of this title (relating to Exemptions):(i) if individually rated more than 40 million British thermal units per hour (MMBtu/hr):(I) boilers;(II) process heaters;(III) boilers and industrial furnaces that were regulated as existing facilities by 40 Code of Federal Regulations (CFR) Part 266, Subpart H, as was in effect on June 9, 1993; and(IV) gas turbine supplemental-fired waste heat recovery units;(ii) stationary reciprocating internal combustion engines not exempt by §117.303(a)(6), (a)(8), (b)(9), or (b)(10) of this title;(iii) stationary gas turbines with a megawatt (MW) rating greater than or equal to 1.0 MW operated more than 850 hours per year; and(iv) fluid catalytic cracking unit boilers using supplemental fuel; and(B) for units subject to §117.310 of this title (relating to Emission Specifications for Attainment Demonstration):(i) boilers (excluding wood-fired boilers that must comply by maintaining records of fuel usage as required in §117.345(f) of this title (relating to Notification, Recordkeeping, and Reporting Requirements) or monitoring in accordance with paragraph (2)(A) of this subsection);(ii) process heaters;(iii) boilers and industrial furnaces that were regulated as existing facilities by 40 CFR Part 266, Subpart H, as was in effect on June 9, 1993;(iv) duct burners used in turbine exhaust ducts;(v) stationary, reciprocating internal combustion engines; (vi) stationary gas turbines;(vii) fluid catalytic cracking unit boilers and furnaces using supplemental fuel;(viii) lime kilns;(ix) lightweight aggregate kilns;(x) heat treating furnaces;(xi) reheat furnaces;(xii) magnesium chloride fluidized bed dryers; and(xiii) incinerators (excluding vapor streams resulting from vessel cleaning routed to an incinerator, provided that fuel usage is quantified using good engineering practices, including calculation methods in general use and accepted in new source review permitting in Texas. All other fuel and vapor streams must be monitored in accordance with this subsection.)(2) The following are alternatives to the fuel flow monitoring requirements of paragraph (1) of this subsection.(A) Units operating with a nitrogen oxides (NOX ) and diluent continuous emissions monitoring system (CEMS) under subsection (f) of this section may monitor stack exhaust flow using the flow monitoring specifications of 40 CFR Part 60, Appendix B, Performance Specification 6 or 40 CFR Part 75, Appendix A.(B) Units that vent to a common stack with a NOX and diluent CEMS under subsection (f) of this section may use a single totalizing fuel flow meter.(C) Diesel engines operating with run time meters may meet the fuel flow monitoring requirements of this subsection through monthly fuel use records maintained for each engine.(D) Stationary reciprocating internal combustion engines and stationary gas turbines equipped with a continuous monitoring system that continuously monitors horsepower and hours of operation are not required to install totalizing fuel flow meters. The continuous monitoring system must be installed, calibrated, maintained, and operated according to manufacturers' recommended procedures.(b) Oxygen (O2 ) monitors.(1) The owner or operator shall install, calibrate, maintain, and operate an O2 monitor to measure exhaust O2 concentration on the following units operated with an annual heat input greater than 2.2(1011 ) British thermal units per year (Btu/yr):(A) boilers with a rated heat input greater than or equal to 100 MMBtu/hr; and(B) process heaters with a rated heat input greater than or equal to 100 MMBtu/hr, except as provided in subsection (g) of this section.(2) The following are not subject to this subsection:(A) units listed in §117.303(b)(3) - (5) and (8) - (10) of this title;(B) process heaters operating with a carbon dioxide CEMS for diluent monitoring under subsection (g) of this section; and(C) wood-fired boilers.(3) The O2 monitors required by this subsection are for process monitoring (predictive monitoring inputs, boiler trim, or process control) and are only required to meet the location specifications and quality assurance procedures referenced in subsection (f) of this section if O2 is the monitored diluent under that subsection. However, if new O2 monitors are required as a result of this subsection, the criteria in subsection (f) of this section should be considered the appropriate guidance for the location and calibration of the monitors.(c) NOX monitors.(1) The owner or operator of units listed in this paragraph shall install, calibrate, maintain, and operate a CEMS or predictive emissions monitoring system (PEMS) to monitor exhaust NOX . The units are:(A) boilers with a rated heat input greater than or equal to 250 MMBtu/hr and an annual heat input greater than 2.2(1011 ) Btu/yr;(B) process heaters with a rated heat input greater than or equal to 200 MMBtu/hr and an annual heat input greater than 2.2(1011 ) Btu/yr;(C) stationary gas turbines with an MW rating greater than or equal to 30 MW operated more than 850 hours per year;(D) units that use a chemical reagent for reduction of NOX ;(E) units that the owner or operator elects to comply with the NOX emission specifications of §117.305 of this title using a pound per MMBtu (lb/MMBtu) limit on a 30-day rolling average;(F) lime kilns and lightweight aggregate kilns;(G) units with a rated heat input greater than or equal to 100 MMBtu/hr that are subject to §117.310(a) of this title; and(H) fluid catalytic cracking units (including carbon monoxide (CO) boilers, CO furnaces, and catalyst regenerator vents). In addition, the owner or operator shall monitor the stack exhaust flow rate with a flow meter using the flow monitoring specifications of 40 CFR Part 60, Appendix B, Performance Specification 6 or 40 CFR Part 75, Appendix A.(2) The following are not required to install CEMS or PEMS under this subsection:(A) for purposes of §117.305 of this title, units listed §117.303(b)(3) - (5) and (8) - (10) of this title;(B) units subject to the NOX CEMS requirements of 40 CFR Part 75; and(C) stationary diesel engines equipped with selective catalytic reduction (SCR) systems that meet the following criteria.(i) The SCR system must use a reductant other than the engine's fuel.(ii) The SCR system must operate with a diagnostic system that monitors reductant quality and tank levels. (iii) The diagnostic system must alert owners or operators to the need to refill the reductant tank before it is empty or to replace the reductant if the reductant does not meet applicable concentration specifications. (iv) If the SCR system uses input from an exhaust NOX sensor (or other sensor) to alert owners or operators when the reductant quality is inadequate, the reductant quality does not need to be monitored separately by the diagnostic system. (v) The reductant tank level must be monitored in accordance with the manufacturer's design to demonstrate compliance with this subparagraph. (vi) The method of alerting an owner or operator must be a visual or audible alarm.(3) The owner or operator shall use one of the following methods to provide substitute emissions compliance data during periods when the NOX monitor is off-line:(A) if the NOX monitor is a CEMS:(i) subject to 40 CFR Part 75, use the missing data procedures specified in 40 CFR Part 75, Subpart D (Missing Data Substitution Procedures); or(ii) subject to 40 CFR Part 75, Appendix E, use the missing data procedures specified in 40 CFR Part 75, Appendix E, §2.5 (Missing Data Procedures);(B) use 40 CFR Part 75, Appendix E monitoring in accordance with §117.1240(e) of this title (relating to Continuous Demonstration of Compliance);(C) if the NOX monitor is a PEMS:(i) use the methods specified in 40 CFR Part 75, Subpart D; or(ii) use calculations in accordance with §117.8110(b) of this title (relating to Emission Monitoring System Requirements for Utility Electric Generation Sources); or(D) use the maximum block one-hour emission rate as measured during the initial demonstration of compliance required in §117.335(f) of this title (relating to Initial Demonstration of Compliance); or(E) use the following procedures:(i) for NOX monitor downtime periods less than 24 consecutive hours, use the maximum block one-hour NOX emission rate, in lb/MMBtu, from the previous 24 operational hours of the unit;(ii) for NOX monitor downtime periods equal to or greater than 24 consecutive hours, use the maximum block one-hour NOX emission rate, in lb/MMBtu, from the previous 720 operational hours of the unit; and(iii) if the fuel flow or stack exhaust flow monitor required by subsection (a) of this section is off-line simultaneous with the NOX monitor downtime, the owner or operator shall use the maximum block one-hour NO X pound per hour emission rate for the substitute data under clause (i) or (ii) of this subparagraph in lieu of the lb/MMBtu emission rate.(d) Ammonia monitoring requirements. The owner or operator of units that are subject to the ammonia emission specifications of §117.310(c)(2) of this title shall comply with the ammonia monitoring requirements of §117.8130 of this title (relating to Ammonia Monitoring). Units identified in subsection (c)(2)(C) of this section are exempt from the ammonia monitoring requirements of this subsection. (e) CO monitoring. The owner or operator shall monitor CO exhaust emissions from each unit listed in subsection (c)(1) of this section using one or more of the methods specified in §117.8120 of this title (relating to Carbon Monoxide (CO) Monitoring).(f) CEMS requirements. The owner or operator of any CEMS used to meet a pollutant monitoring requirement of this section shall comply with the following.(1) The CEMS must meet the requirements of §117.8100(a) of this title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources).(2) For units subject to §117.310 of this title:(A) all bypass stacks must be monitored, in order to quantify emissions directed through the bypass stack:(i) if the CEMS is located upstream of the bypass stack, then:(I) no effluent streams from other potential sources of NOX emissions may be introduced between the CEMS and the bypass stack; and(II) the owner or operator shall install, operate, and maintain a continuous monitoring system to automatically record the date, time, and duration of each event when the bypass stack is open; and(ii) process knowledge and engineering calculations may be used to determine volumetric flow rate for purposes of calculating mass emissions for each event when the bypass stack is open, provided that:(I) the maximum potential calculated flow rate is used for emission calculations; and(II) the owner or operator maintains, and makes available upon request by the executive director, records of all process information and calculations used for this determination; and(B) exhaust streams of units that vent to a common stack do not need to be analyzed separately.(g) PEMS requirements. The owner or operator of any PEMS used to meet a pollutant monitoring requirement of this section shall comply with the following.(1) The PEMS must predict the pollutant emissions in the units of the applicable emission specifications of this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources).(2) The PEMS must meet the requirements of §117.8100(b) of this title.(h) Engine monitoring. The owner or operator of any stationary gas engine subject to §117.305 of this title that is not equipped with NOX CEMS or PEMS shall stack test engine NOX and CO emissions as specified in §117.8140(a) of this title (relating to Emission Monitoring for Engines). The owner or operator of any stationary internal combustion engine subject to §117.310 of this title that is not equipped with NOX CEMS or PEMS shall stack test engine NOX and CO emissions as specified in §117.8140(a) and (b) of this title.(i) Monitoring for stationary gas turbines less than 30 MW. The owner or operator of any stationary gas turbine rated less than 30 MW using steam or water injection to comply with the emission specifications of §117.305 or §117.315 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT) and Alternative Plant-Wide Emission Specifications) shall either:(1) install, calibrate, maintain, and operate a NOX CEMS or PEMS in compliance with this section and monitor CO in compliance with subsection (e) of this section; or(2) install, calibrate, maintain, and operate a continuous monitoring system to monitor and record the average hourly fuel and steam or water consumption:(A) the system must be accurate to within ± 5.0%;(B) the steam-to-fuel or water-to-fuel ratio monitoring data must constitute the method for demonstrating continuous compliance with the applicable emission specification of §117.305 or §117.315 of this title; and(C) steam or water injection control algorithms are subject to executive director approval.(j) Run time meters. The owner or operator of any stationary gas turbine or stationary internal combustion engine claimed exempt using the exemption of §117.303(a)(6)(D), (a)(10), (a)(11), (b)(2) or (b)(9) of this title shall record the operating time with an elapsed run time meter. Any run time meter installed on or after October 1, 2001, must be non-resettable.(k) Hydrogen (H2 ) monitoring. The owner or operator claiming the H2 multiplier of §117.305(b)(6) or §117.315(g)(4) or (h) of this title shall sample, analyze, and record every three hours the fuel gas composition to determine the volume percent H2 .(1) The total H2 volume flow in all gaseous fuel streams to the unit must be divided by the total gaseous volume flow to determine the volume percent of H2 in the fuel supply to the unit.(2) Fuel gas analysis must be tested according to American Society for Testing and Materials (ASTM) Method D1945-81 or ASTM Method D2650-83, or other methods that are demonstrated to the satisfaction of the executive director and the United States Environmental Protection Agency to be equivalent.(3) A gaseous fuel stream containing 99% H2 by volume or greater may use the following procedure to be exempted from the sampling and analysis requirements of this subsection.(A) A fuel gas analysis must be performed initially using one of the test methods in this subsection to demonstrate that the gaseous fuel stream is 99% H2 by volume or greater.(B) The process flow diagram of the process unit that is the source of the H2 must be supplied to the executive director to illustrate the source and supply of the hydrogen stream.(C) The owner or operator shall certify that the gaseous fuel stream containing H2 will continuously remain, as a minimum, at 99% H2 by volume or greater during its use as a fuel to the combustion unit.(l) Data used for compliance.(1) After the initial demonstration of compliance required by §117.335 of this title, the methods required in this section must be used to determine compliance with the emission specifications of §117.305 of this title. For enforcement purposes, the executive director may also use other commission compliance methods to determine whether the source is in compliance with applicable emission limitations. (2) For units subject to §117.310(a) of this title, the methods required in this section must be used in conjunction with the requirements of Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program) to determine compliance. For enforcement purposes, the executive director may also use other commission compliance methods to determine whether the source is in compliance with applicable emission limitations.(m) Enforcement of NOX RACT limits. If compliance with §117.305 of this title is selected, no unit subject to §117.305 of this title may be operated at an emission rate higher than that allowed by the emission specifications of §117.305 of this title. If compliance with §117.315 of this title is selected, no unit subject to §117.315 of this title may be operated at an emission rate higher than that approved by the executive director under §117.352(b) of this title (relating to Final Control Plan Procedures for Reasonably Available Control Technology).(n) Loss of NOX RACT exemption. The owner or operator of any unit claimed exempt from the emission specifications of this division using the low annual capacity factor exemption of §117.303(b)(2) of this title shall notify the executive director within seven days if the Btu/yr or hour-per-year limit specified in §117.10 of this title (relating to Definitions), as appropriate, is exceeded.(1) If the limit is exceeded, the exemption from the emission specifications of this division is permanently withdrawn.(2) Within 90 days after loss of the exemption, the owner or operator shall submit a compliance plan detailing a plan to meet the applicable compliance limit as soon as possible, but no later than 24 months after exceeding the limit. The plan must include a schedule of increments of progress for the installation of the required control equipment.(3) The schedule is subject to the review and approval of the executive director.(o) Testing and operating requirements. The owner or operator of units that are subject to §117.310(a) of this title shall comply with the following.(1) The owner or operator of units that are subject to §117.310(a) of this title shall test the units as specified in §117.335 of this title in accordance with the schedule specified in §117.9020(2) of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources).(2) Each stationary internal combustion engine controlled with nonselective catalytic reduction must be equipped with an automatic air-fuel ratio (AFR) controller that operates on exhaust O2 or CO control and maintains AFR in the range required to meet the engine's applicable emission limits.(p) Emission allowances. The owner or operator of units that are subject to §117.310(a) of this title shall comply with the following.(1) The NOX testing and monitoring data of subsections (a), (c), (f), (g), and (o) of this section, together with the level of activity, as defined in §101.350 of this title (relating to Definitions), must be used to establish the emission factor for calculating actual emissions for compliance with Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program.(2) For units not operating with CEMS or PEMS, the following apply.(A) Retesting as specified in subsection (o)(1) of this section is required within 60 days after any modification that could reasonably be expected to increase the NOX emission rate.(B) Retesting as specified in subsection (o)(1) of this section may be conducted at the discretion of the owner or operator after any modification that could reasonably be expected to decrease the NOX emission rate, including, but not limited to, installation of post-combustion controls, low-NOX burners, low excess air operation, staged combustion (for example, overfire air), flue gas recirculation, and fuel-lean and conventional (fuel-rich) reburn.(C) The NOX emission rate determined by the retesting must be used to establish a new emission factor to calculate actual emissions from the date of the retesting forward. Until the date of the retesting, the previously determined emission factor must be used to calculate actual emissions for compliance with Chapter 101, Subchapter H, Division 3 of this title.(D) All test reports must be submitted to the executive director for review and approval within 60 days after completion of the testing.(3) The emission factor in paragraph (1) or (2) of this subsection is multiplied by the unit's level of activity to determine the unit's actual emissions for compliance with Chapter 101, Subchapter H, Division 3 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.340 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective March 4, 2009, 34 TexReg 1445; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.345"><num value="117.345">§117.345</num><heading>Notification, Recordkeeping, and Reporting Requirements</heading><content>(a) Startup and shutdown records. For units subject to the startup and/or shutdown provisions of §101.222 of this title (relating to Demonstrations), hourly records must be made of startup and/or shutdown events and maintained for a period of at least two years. Records must be available for inspection by the executive director, the United States Environmental Protection Agency, and any local air pollution control agency having jurisdiction upon request. These records must include, but are not limited to: type of fuel burned; quantity of each type of fuel burned; and the date, time, and duration of the procedure. (b) Notification. The owner or operator of an affected source shall submit notification to the appropriate regional office and any local air pollution control agency having jurisdiction as follows: (1) verbal notification of the date of any testing conducted under §117.335 of this title (relating to Initial Demonstration of Compliance) at least 15 days prior to such date followed by written notification within 15 days after testing is completed; and (2) verbal notification of the date of any continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) relative accuracy test audit (RATA) conducted under §117.340 of this title (relating to Continuous Demonstration of Compliance) at least 15 days prior to such date followed by written notification within 15 days after testing is completed. (c) Reporting of test results. The owner or operator of an affected unit shall furnish the Office of Compliance and Enforcement, the appropriate regional office, and any local air pollution control agency having jurisdiction a copy of any testing conducted under §117.335 of this title and any CEMS or PEMS RATA conducted under §117.340 of this title: (1) within 60 days after completion of such testing or evaluation; and (2) not later than the compliance schedule specified in §117.9020 of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources). (d) Semiannual reports. The owner or operator of a unit required to install a CEMS, PEMS, or water-to-fuel or steam-to-fuel ratio monitoring system under §117.340 of this title shall report in writing to the executive director on a semiannual basis any exceedance of the applicable emission specifications of this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources) and the monitoring system performance. For sources in the mass emissions cap and trade program of Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program), that are no longer subject to §117.305 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)), the report is only a monitoring system report as specified in paragraph (3) of this subsection. All reports must be postmarked or received by the 30th day following the end of each calendar semiannual period. Written reports must include the following information: (1) the magnitude of excess emissions computed in accordance with 40 Code of Federal Regulations §60.13(h), any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the unit operating time during the reporting period: (A) for stationary gas turbines using steam-to-fuel or water-to-fuel ratio monitoring to demonstrate compliance in accordance with §117.340(i)(2) of this title, excess emissions are computed as each one-hour period that the average steam or water injection rate is below the level defined by the control algorithm as necessary to achieve compliance with the applicable emission specifications in §117.305 of this title; and (B) for units complying with §117.323 of this title (relating to Source Cap), excess emissions are each daily period that the total nitrogen oxides (NOX ) emissions exceed the rolling 30-day average or the maximum daily NOX cap; (2) specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the affected unit, the nature and cause of any malfunction (if known), and the corrective action taken or preventative measures adopted; (3) the date and time identifying each period that the continuous monitoring system was inoperative, except for zero and span checks and the nature of the system repairs or adjustments; (4) when no excess emissions have occurred or the continuous monitoring system has not been inoperative, repaired, or adjusted, such information must be stated in the report; and (5) if the total duration of excess emissions for the reporting period is less than 1.0% of the total unit operating time for the reporting period and the CEMS, PEMS, or water-to-fuel or steam-to-fuel ratio monitoring system downtime for the reporting period is less than 5.0% of the total unit operating time for the reporting period, only a summary report form (as outlined in the latest edition of the commission's Guidance for Preparation of Summary, Excess Emission, and Continuous Monitoring System Reports) must be submitted, unless otherwise requested by the executive director. If the total duration of excess emissions for the reporting period is greater than or equal to 1.0% of the total operating time for the reporting period or the CEMS, PEMS, or water-to-fuel or steam-to-fuel ratio monitoring system downtime for the reporting period is greater than or equal to 5.0% of the total operating time for the reporting period, a summary report and an excess emission report must both be submitted. (e) Reporting for engines. The owner or operator of any gas-fired engine subject to §§117.305, 117.310, or 117.315 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT); Emission Specifications for Attainment Demonstration; and Alternative Plant-Wide Emission Specifications) shall report in writing to the executive director on a semiannual basis any excess emissions and the air-fuel ratio monitoring system performance. All reports must be postmarked or received by the 30th day following the end of each calendar semiannual period. Written reports must include the following information: (1) the magnitude of excess emissionsbased on the quarterly emission checks of §117.330(d)(7) of this title (relating to Operating Requirements) and the biennial emission testing required for demonstration of emissions compliance in accordance with §117.340(h) of this title, computed in pounds per hour and grams per horsepower-hour, any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the engine operating time during the reporting period; and (2) specific identification, to the extent feasible, of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the engine or emission control system, the nature and cause of any malfunction (if known), and the corrective action taken or preventative measures adopted. (f) Recordkeeping. The owner or operator of a unit subject to the requirements of this division shall maintain written or electronic records of the data specified in this subsection. Such records must be kept for a period of at least five years and must be made available upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction. The records must include: (1) for each unit subject to §117.340(a) of this title, records of annual fuel usage; (2) for each unit using a CEMS or PEMS in accordance with §117.340 of this title, monitoring records of: (A) hourly emissions and fuel usage (or stack exhaust flow) for units complying with an emission limit enforced on a block one-hour average; (B) daily emissions and fuel usage (or stack exhaust flow) for units complying with an emission limit enforced on a daily or rolling 30-day average. Emissions must be recorded in units of: (i) pound per million British thermal units (lb/MMBtu) heat input; and (ii) pounds or tons per day; or (C) daily emissions and fuel usage (or stack exhaust flow) for units subject to the mass emissions cap and trade program of Chapter 101, Subchapter H, Division 3 of this title. Emissions must be recorded in units of: (i) lb/MMBtu heat input or in the units of the applicable emission specification in §117.310(a) of this title; and (ii) pounds or tons per day; (3) for each stationary internal combustion engine subject to the emission specifications of this division, records of: (A) emissions measurements required by: (i) §117.330(d)(7) of this title; and (ii) §117.340(h) of this title; and (B) catalytic converter, air-fuel ratio controller, or other emissions-related control system maintenance, including the date and nature of corrective actions taken; (4) for each stationary gas turbine monitored by steam-to-fuel or water-to-fuel ratio in accordance with §117.340(i) of this title, records of hourly: (A) pounds of steam or water injected; (B) pounds of fuel consumed; and (C) the steam-to-fuel or water-to-fuel ratio; (5) for hydrogen (H2) fuel monitoring in accordance with §117.340(k) of this title, records of the volume percent H2 every three hours; (6) for units claimed exempt from emission specifications using the exemption of §117.303(a)(6)(D), (a)(10), (a)(11), or (b)(2) of this title (relating to Exemptions), either records of monthly: (A) fuel usage, for exemptions based on heat input; or (B) hours of operation, for exemptions based on hours per year of operation. In addition, for each engine claimed exempt under §117.303(a)(6)(D) of this title, written records must be maintained of the purpose of engine operation and, if operation was for an emergency situation, identification of the type of emergency situation and the start and end times and date(s) of the emergency situation; (7) records of carbon monoxide measurements specified in §117.340(e) of this title; (8) records of the results of initial certification testing, evaluations, calibrations, checks, adjustments, and maintenance of CEMS, PEMS, or steam-to-fuel or water-to-fuel ratio monitoring systems; (9) records of the results of performance testing, including initial demonstration of compliance testing conducted in accordance with §117.335 of this title; (10) for each stationary diesel or dual-fuel engine, records of each time the engine is operated for testing and maintenance, including: (A) date(s) of operation; (B) start and end times of operation; (C) identification of the engine; and (D) total hours of operation for each month and for the most recent 12 consecutive months; (11) for units subject to the ammonia monitoring requirements of §117.340(d) of this title, records that are sufficient to demonstrate compliance with the requirements of §117.8130 of this title (relating to Ammonia Monitoring). For the sorbent or stain tube option, these records must include the ammonia injection rate and NOX stack emissions measured during each sorbent or stain tube test; and (12) for each stationary reciprocating internal combustion engine and stationary gas turbine for which the owner or operator elects to use the alternative monitoring system allowed under §117.340(a)(2)(D) of this title, records of the daily average horsepower and total daily hours of operation. Units that are monitored according to §117.340(a)(2)(D) of this title are not required to keep records of annual fuel usage as required by paragraph (1) of this subsection.</content><note type="source"><p>Source Note: The provisions of this §117.345 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective March 4, 2009, 34 TexReg 1445.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.350"><num value="117.350">§117.350</num><heading>Initial Control Plan Procedures</heading><content>(a) The owner or operator of any major source of nitrogen oxides (NOX ) shall submit, for the approval of the executive director, an initial control plan for installation of NO X emissions control equipment (if required in order to comply with the emission specifications of this subchapter) and demonstration of anticipated compliance with the applicable requirements of this subchapter. (1) This section applies only to sources that were major for NOX emissions before November 15, 1992. (2) The executive director shall approve the plan if it contains all the information specified in this section. (3) Revisions to the initial control plan must be submitted with the final control plan. (b) The owner or operator shall provide results of emissions testing using portable or reference method analyzers or, as available, initial demonstration of compliance testing conducted in accordance with §117.335(e) or (f) of this title (relating to Initial Demonstration of Compliance) for NOX , carbon monoxide (CO), and oxygen emissions while firing gaseous fuel (and as applicable, hydrogen (H 2) fuel for units that may fire more than 50% H 2 by volume) and liquid and/or solid fuel at the maximum rated capacity or as near thereto as practicable, for the units listed in this subsection. Previous testing documentation for any claimed test waiver as allowed by §117.335(d) of this title must be submitted with the initial control plan. Any units that were not operated between June 9, 1993, and April 1, 1994, and do not have earlier representative emission test results available, must be tested and the results submitted to the executive director, with certification of the equipment's shutdown period, within 90 days after the date such equipment is returned to operation. Test results are required for the following units: (1) boilers and process heaters with a maximum rated capacity greater than or equal to 40 million British thermal units per hour (MMBtu/hr), except for low annual capacity factor boilers and process heaters as defined in §117.10 of this title (relating to Definitions); (2) boilers and industrial furnaces with a maximum rated capacity greater than or equal to 40 MMBtu/hr that were regulated as existing facilities by 40 Code of Federal Regulations, Part 266, Subpart H, as was in effect on June 9, 1993, except for low annual capacity factor boilers and process heaters as defined in §117.10 of this title; (3) fluid catalytic cracking units with a maximum rated capacity greater than or equal to 40 MMBtu/hr; (4) gas turbine supplemental waste heat recovery units with a maximum rated fired capacity greater than or equal to 40 MMBtu/hr, except for low annual capacity factor gas turbine supplemental waste heat recovery units as defined in §117.10 of this title; (5) stationary gas turbines with a megawatt (MW) rating of greater than or equal to 1.0 MW, except for low annual capacity factor gas turbines or peaking gas turbines as defined in §117.10 of this title; and (6) gas-fired, stationary, reciprocating internal combustion engines rated 150 horsepower (hp) or greater, except for low annual capacity factor engines or peaking engines as defined in §117.10 of this title. (c) The initial control plan must be submitted by April 1, 1994, and must contain the following: (1) a list of all combustion units at the source with a maximum rated capacity greater than 5.0 MMBtu/hr; all stationary, reciprocating internal combustion engines rated 150 hp or greater; all stationary gas turbines with an MW rating of greater than or equal to 1.0 MW; the maximum rated capacity, anticipated annual capacity factor, the facility identification numbers and emission point numbers as submitted to the Industrial Emissions Assessment Section of the commission; and the emission point numbers as listed on the Maximum Allowable Emissions Rate Table of any applicable commission permit for each unit; (2) identification of all units subject to the emission specifications of §117.305 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)), §117.315 of this title (relating to Alternative Plant-Wide Emission Specifications), or §117.323 of this title (relating to Source Cap); (3) identification of all boilers, process heaters, stationary gas turbines, or engines with a claimed exemption from the emission specifications of §117.305 or §117.315 of this title and the rule basis for the claimed exemption; (4) identification of the election to use individual emission limits as specified in §117.305 of this title, the plant-wide emission specification as specified in §117.315 of this title, or the source cap emission limit as specified in §117.323 of this title to achieve compliance with this rule; (5) a list of units to be controlled and the type of control to be applied for all such units, including an anticipated construction schedule; (6) a list of units requiring operating modifications to comply with §117.330(d) of this title (relating to Operating Requirements) and the type of modification to be applied for all such units, including an anticipated construction schedule; (7) a list of any units that have been or will be retired, decommissioned, or shutdown and rendered inoperable after November 15, 1990, as a result of compliance with §117.305 of this title, indicating the date of occurrence or anticipated date of occurrence; (8) the basis for calculation of the rate of NO X emissions for each unit to demonstrate that each unit will achieve the NOX emission rates specified in this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources). For fluid catalytic cracking unit CO boilers, the basis for calculation of the NOX emission rate in pounds per million British thermal units (lb/MMBtu) for each unit must include the following: (A) the calculation of the CO boiler heat input; (B) the calculation of the appropriate CO boiler volumetric inlet and exhaust flowrates; and (C) the calculation of the CO boiler NO X emission rate in lb/MMBtu; (9) for units required to install totalizing fuel flow meters in accordance with §117.340(a) of this title (relating to Continuous Demonstration of Compliance), indication of whether the devices are currently in operation, and if so, whether they have been installed as a result of the requirements of this chapter; (10) for units that have had NOX reduction projects as specified in §117.305(a)(1)(B) of this title, documentation that such projects were undertaken solely for the purpose of obtaining early NOX reductions; and (11) test results in accordance with subsection (b) of this section.</content><note type="source"><p>Source Note: The provisions of this §117.350 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.352"><num value="117.352">§117.352</num><heading>Final Control Plan Procedures for Reasonably Available Control Technology</heading><content>(a) The owner or operator of units listed in §117.300 of this title (relating to Applicability) at a major source of nitrogen oxides (NOX ) shall submit a final control report to show compliance with the requirements of §117.305 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)). The report must include a list of the units listed in §117.300 of this title, showing: (1) the NOX emission specification resulting from application of §117.305 of this title for each non-exempt unit; (2) the section under which NOX compliance is being established for units specified in paragraph (1) of this subsection, either: (A) §117.305 of this title; (B) §117.315 of this title (relating to Alternative Plant-Wide Emission Specifications); (C) §117.323 of this title (relating to Source Cap); (D) §117.325 of this title (relating to Alternative Case Specific Specifications); or (E) §117.9800 of this title (relating to Use of Emission Credits for Compliance); (3) the method of NOX control for each unit; (4) the emissions measured by testing required in §117.335 of this title (relating to Initial Demonstration of Compliance); (5) the submittal date, and whether sent to the Austin or the regional office (or both), of any compliance stack test report or relative accuracy test audit report required by §117.335 of this title that is not being submitted concurrently with the final compliance report; and (6) the specific rule citation for any unit with a claimed exemption from the emission specifications of this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources), for: (A) boilers and heaters with a maximum rated capacity greater than or equal to 100.0 million British thermal units per hour; (B) gas turbines with a megawatt (MW) rating greater than or equal to 10.0 MW; and (C) gas-fired internal combustion engines rated greater than or equal to 150 horsepower. (b) For sources complying with §117.315 of this title, in addition to the requirements of subsection (a) of this section, the owner or operator shall: (1) assign to each affected: (A) boiler or process heater, the maximum allowable NOX emission rate in pounds per million British thermal units (rolling 30-day average), or in pounds per hour (block one-hour average) indicating whether the fuel is gas, high-hydrogen gas, solid, or liquid; (B) stationary gas turbine, the maximum allowable NO X emission in parts per million by volume at 15% oxygen, dry basis on a block one-hour average; and (C) stationary internal combustion engine, the maximum allowable NOX emission rate in grams per horsepower-hour on a block one-hour average; (2) submit a list to the executive director for approval of: (A) the maximum allowable NOX emission rates identified in paragraph (1) of this subsection; and (B) the maximum rated capacity for each unit; (3) submit calculations used to calculate the plant-wide average in accordance with §117.315(g) of this title; and (4) maintain a copy of the approved list of emission specifications for verification of continued compliance with the requirements of §117.315 of this title. (c) For sources complying with §117.323 of this title, in addition to the requirements of subsection (a) of this section, the owner or operator shall submit: (1) the calculations used to calculate the 30-day average and maximum daily source cap allowable emission rates; and (2) a list containing, for each unit in the cap: (A) the historical average daily heat input information, Hi ; (B) the maximum daily heat input, Hmi ; (C) the applicable restriction, Ri ; and (D) the method of monitoring emissions; (3) an explanation of the basis of the values of H i , Hmi , and Ri ; and (4) the information applicable to shutdown units, specified in §117.323(g) of this title. (d) The report must be submitted by the applicable date specified for final control plans in §117.9020 of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources). The plan must be updated with any emission compliance measurements submitted for units using continuous emissions monitoring system or predictive emissions monitoring system and complying with an emission limit on a rolling 30-day average, according to the applicable schedule given in §117.9020 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.352 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.354"><num value="117.354">§117.354</num><heading>Final Control Plan Procedures for Attainment Demonstration Emission Specifications</heading><content>(a) The owner or operator of units listed in §117.310(a) of this title (relating to Emission Specifications for Attainment Demonstration) at a major source of nitrogen oxides (NOX ) shall submit a final control report to show compliance with the requirements of §117.310 of this title. The report must include: (1) the section under which NOX compliance is being established, either: (A) Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program); and, where applicable, §117.320 of this title (relating to System Cap); or (B) §117.9800 of this title (relating to Use of Emission Credits for Compliance); (2) the method of NOX control for each unit; (3) the emissions measured by testing required in §117.335 of this title (relating to Initial Demonstration of Compliance); (4) the submittal date, and whether sent to the central or the regional office (or both), of any compliance stack test report or relative accuracy test audit report required by §117.335 of this title that is not being submitted concurrently with the final compliance report; (5) the specific rule citation for any unit with a claimed exemption from §117.310 of this title; and (6) for sources complying with §117.320 of this title, in addition to the requirements of paragraphs (1) - (5) of this subsection, the owner or operator shall submit: (A) the calculations used to calculate the 30-day average and maximum daily system cap allowable emission rates; (B) a list containing, for each unit in the cap: (i) the average daily heat input, Hi , specified in §117.320(c)(1) and (2) of this title; (ii) the maximum daily heat input, H mi , specified in §117.320(c)(3) of this title; (iii) the method of monitoring emissions; and (iv) the method of providing substitute emissions data when the NOX monitoring system is not providing valid data; and (C) an explanation of the basis of the values of H i and Hmi . (b) The report must be submitted to the executive director by the applicable date specified for final control plans in §117.9020 of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources). The plan must be updated with any emission compliance measurements submitted for units using continuous emissions monitoring system or predictive emissions monitoring system and complying with the system cap rolling 30-day average emission limit, according to the applicable schedule given in §117.9020 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.354 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.356"><num value="117.356">§117.356</num><heading>Revision of Final Control Plan</heading><content>A revised final control plan may be submitted by the owner or operator, along with any required permit applications. Such a plan must adhere to the requirements and the final compliance dates of this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources).(1) For sources complying with §117.305 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)), §117.310 of this title (relating to Emission Specifications for Attainment Demonstration), or §117.315 of this title (relating to Alternative Plant-Wide Emission Specifications), replacement new units may be included in the control plan.(2) For sources complying with §117.323 of this title (relating to Source Cap), any new unit must be included in the source cap, if the unit belongs to an equipment category that is included in the source cap.(3) The revision of the final control plan must be subject to the review and approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §117.356 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.400"><num value="117.400">§117.400</num><heading>Applicability</heading><content>(a) The provisions of this division apply to the following units located at any major stationary source of nitrogen oxides (NOX ) located in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, or Tarrant County:(1) industrial, commercial, or institutional boilers and process heaters;(2) stationary gas turbines;(3) stationary internal combustion engines;(4) duct burners used in turbine exhaust ducts;(5) lime kilns;(6) metallurgical heat treating furnaces and reheat furnaces;(7) incinerators;(8) glass, fiberglass, and mineral wool melting furnaces; (9) fiberglass and mineral wool curing ovens;(10) natural gas-fired ovens and heaters;(11) natural gas-fired dryers used in organic solvent, printing ink, clay, brick, ceramic tile, calcining, and vitrifying processes;(12) brick and ceramic kilns; and(13) lead smelting reverberatory and blast (cupola) furnaces.(b) The provisions of this division apply to the following units located at any major stationary source of NOX located in Wise County:(1) industrial, commercial, or institutional process heaters;(2) stationary gas turbines; and(3) stationary internal combustion engines.</content><note type="source"><p>Source Note: The provisions of this §117.400 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.403"><num value="117.403">§117.403</num><heading>Exemptions</heading><content>(a) Units located in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, or Tarrant County exempted from the provisions of this division, except as specified in §§117.410(f), 117.440(i), 117.445(f)(4) and (9), 117.450, and 117.454 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration; Continuous Demonstration of Compliance; Notification, Recordkeeping, and Reporting Requirements; Initial Control Plan Procedures; and Final Control Plan Procedures for Attainment Demonstration Emission Specifications), include the following:(1) industrial, commercial, or institutional boilers or process heaters with a maximum rated capacity equal to or less than:(A) 2.0 million British thermal units per hour (MMBtu/hr) for boilers; and(B) 5.0 MMBtu/hr for process heaters;(2) heat treating furnaces and reheat furnaces with a maximum rated capacity less than 20 MMBtu/hr;(3) flares, incinerators with a maximum rated capacity less than 40 MMBtu/hr, pulping liquor recovery furnaces, sulfur recovery units, sulfuric acid regeneration units, molten sulfur oxidation furnaces, and sulfur plant reaction boilers;(4) dryers, heaters, or ovens with a maximum rated capacity of 5.0 MMBtu/hr or less;(5) any dryers, heaters, or ovens fired on fuels other than natural gas. This exemption does not apply to gas-fired curing ovens used for the production of mineral wool-type or textile-type fiberglass;(6) any glass, fiberglass, and mineral wool melting furnaces with a maximum rated capacity of 2.0 MMBtu/hr or less;(7) stationary gas turbines and stationary internal combustion engines, that are used as follows:(A) in research and testing of the unit;(B) for purposes of performance verification and testing of the unit;(C) solely to power other engines or gas turbines during startups;(D) exclusively in emergency situations, except that operation for testing or maintenance purposes of the gas turbine or engine is allowed for up to 100 hours per year, based on a rolling 12-month basis. Any new, modified, reconstructed, or relocated stationary diesel engine placed into service on or after June 1, 2007, is ineligible for this exemption. For the purposes of this subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title (relating to General Definitions) and 40 Code of Federal Regulations (CFR) §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title (relating to Definitions), a used engine from anywhere outside that account;(E) in response to and during the existence of any officially declared disaster or state of emergency;(F) directly and exclusively by the owner or operator for agricultural operations necessary for the growing of crops or raising of fowl or animals; or(G) as chemical processing gas turbines;(8) any stationary diesel engine placed into service before June 1, 2007, that:(A) operates less than 100 hours per year, based on a rolling 12-month basis; and(B) has not been modified, reconstructed, or relocated on or after June 1, 2007. For the purposes of this subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title and 40 CFR §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title, a used engine from anywhere outside that account;(9) any new, modified, reconstructed, or relocated stationary diesel engine placed into service on or after June 1, 2007, that:(A) operates less than 100 hours per year, based on a rolling 12-month basis, in other than emergency situations; and(B) meets the corresponding emission standard for non-road engines listed in 40 CFR §89.112(a), Table 1 (October 23, 1998), and in effect at the time of installation, modification, reconstruction, or relocation. For the purposes of this paragraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title and 40 CFR §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title, a used engine from anywhere outside that account;(10) boilers and industrial furnaces that were regulated as existing facilities by 40 CFR Part 266, Subpart H, as was in effect on June 9, 1993;(11) brick or ceramic kilns with a maximum rated capacity less than 5.0 MMBtu/hr;(12) low-temperature drying and curing ovens used in mineral wool-type fiberglass manufacturing and wet-laid, non-woven fiber mat manufacturing in which nitrogen-containing resins, or other additives are used;(13) stationary, gas-fired, reciprocating internal combustion engines with a horsepower (hp) rating less than 50 hp;(14) electric arc melting furnaces used in steel production;(15) forming ovens and forming processes used in mineral wool-type fiberglass manufacturing; and(16) natural gas-fired heaters used exclusively for providing comfort heat to areas designed for human occupancy.(b) Units located in Wise County exempted from the provisions of this division, except as specified in §§117.440(i), 117.445(f)(4), 117.450, and 117.452 of this title (relating to Final Control Plan Procedures for Reasonably Available Control Technology), include the following:(1) industrial, commercial, or institutional process heaters with a maximum rated capacity less than 40 MMBtu/hr;(2) stationary gas turbines and stationary internal combustion engines that are used as follows:(A) in research and testing of the unit;(B) for purposes of performance verification and testing of the unit;(C) solely to power other engines or gas turbines during startups;(D) exclusively in emergency situations, except that operation for testing or maintenance purposes of the gas turbine or engine is allowed for up to 100 hours per year, based on a rolling 12-month basis; and(E) in response to and during the existence of any officially declared disaster or state of emergency;(3) stationary, diesel, reciprocating internal combustion engines;(4) stationary, dual-fuel, reciprocating internal combustion engines; and(5) stationary, gas-fired, reciprocating internal combustion engines with a hp rating less than 50 hp.(c) The emission specifications in §117.410(a)(1) and (c) of this title do not apply to gas-fired boilers during periods that the owner or operator is required to fire fuel oil on an emergency basis due to natural gas curtailment or other emergency, provided:(1) the fuel oil firing occurs during the months of November, December, January, or February; and(2) the fuel oil firing does not exceed a total of 72 hours in any calendar month specified in paragraph (1) of this subsection.</content><note type="source"><p>Source Note: The provisions of this §117.403 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective February 4, 2010, 35 TexReg 649; amended to be effective June 25, 2015, 40 TexReg 3965; amended to be effective March 26, 2020, 45 TexReg 2013.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.405"><num value="117.405">§117.405</num><heading>Emission Specifications for Reasonably Available Control Technology (RACT)</heading><content>(a) Reasonably Available Control Technology (RACT) emission specifications for wood-fired boilers. For units located in the Dallas-Fort Worth eight-hour ozone nonattainment area, no person shall allow the discharge into the atmosphere nitrogen oxides (NOX ) emissions in excess of 0.12 pounds per million British thermal units (lb/MMBtu) for wood-fired boilers, in accordance with the applicable schedule in §117.9030(a) of this title (relating to Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources), except as provided in subsection (e) of this section.(b) Emission specifications for RACT in Wise County. For units located in Wise County, no person shall allow the discharge into the atmosphere NOX emissions in excess of the following emission specifications, in accordance with the applicable schedule in §117.9030(a) of this title, except as provided in subsection (e) of this section:(1) process heaters with a maximum rated capacity equal to or greater than 40 million British thermal units per hour (MMBtu/hr), 0.10 lb/MMBtu (or alternatively, 82 parts per million by volume (ppmv), at 3.0% oxygen (O2), dry basis);(2) stationary, reciprocating internal combustion engines: (A) gas-fired rich-burn engines, 0.50 grams per horsepower-hour (g/hp-hr); and(B) gas-fired lean-burn engines:(i) White Superior four-cycle units that have been placed into service, modified, reconstructed, or relocated:(I) before June 1, 2015, 12.0 g/hp-hr; and(II) on or after June 1, 2015, 2.0 g/hp-hr;(ii) Clark two-cycle units that have been placed into service, modified, reconstructed, or relocated:(I) before June 1, 2015, 12.0 g/hp-hr; and(II) on or after June 1, 2015, 2.0 g/hp-hr;(iii) Fairbanks Morse MEP two-cycle units that have been placed into service, modified, reconstructed, or relocated:(I) before June 1, 2015, 4.0 g/hp-hr; and(II) on or after June 1, 2015, 2.0 g/hp-hr; and(iv) all others, 2.0 g/hp-hr; and(3) stationary gas turbines:(A) with a horsepower (hp) rating of less than 10,000 hp, 0.55 lb/MMBtu; and(B) with a hp rating of 10,000 hp or greater, 0.15 lb/MMBtu.(c) NOX averaging time. The emission specifications of subsections (a) and (b) of this section apply:(1) if the unit is operated with a NOX continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) under §117.440 of this title (relating to Continuous Demonstration of Compliance), either as:(A) a rolling 30-day average, in the units of the applicable standard;(B) a block one-hour average, in the units of the applicable standard, or alternatively;(C) a block one-hour average, in pounds per hour, for boilers and process heaters, calculated as the product of the boiler's or process heater's maximum rated capacity and its applicable specification in lb/MMBtu; and(2) if the unit is not operated with a NOX CEMS or PEMS under §117.440 of this title, a block one-hour average, in the units of the applicable standard. Alternatively for boilers and process heaters, the emission specification may be applied in pounds per hour, as specified in paragraph (1)(C) of this subsection.(d) Related emissions. No person shall allow the discharge into the atmosphere from any unit subject to NOX emission specifications in subsection (a) or (b) of this section, emissions in excess of the following, except as provided in §117.425 of this title (relating to Alternative Case Specific Specifications) or paragraph (3) of this subsection.(1) Carbon monoxide (CO) emissions must not exceed 400 ppmv at 3.0% O2, dry basis (or alternatively, 3.0 g/hp-hr for stationary internal combustion engines; or 775 ppmv at 7.0% O2, dry basis for wood fuel-fired boilers or process heaters):(A) on a rolling 24-hour averaging period, for units equipped with CEMS or PEMS for CO; and(B) on a block one-hour averaging period, for units not equipped with CEMS or PEMS for CO.(2) For units that inject urea or ammonia into the exhaust stream for NOX control, ammonia emissions must not exceed 10 ppmv at 3.0% O2, dry, for boilers and process heaters; 15% O2, dry, for stationary gas turbines and gas-fired lean-burn engines; and 3.0% O2, dry, for all other units, based on:(A) a block one-hour averaging period for units not equipped with a CEMS or PEMS for ammonia; and(B) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for ammonia.(3) The correction of CO emissions to 3.0% O2, dry basis, in paragraph (1) of this subsection does not apply to boilers and process heaters operating at less than 10% of maximum load and with stack O2 in excess of 15% (i.e., hot-standby mode).(e) Compliance flexibility.(1) An owner or operator may use any of the following alternative methods to comply with the NOX emission specifications of this section:(A) §117.423 of this title (relating to Source Cap); or(B) §117.9800 of this title (relating to Use of Emission Credits for Compliance).(2) Section 117.425 of this title is not an applicable method of compliance with the NOX emission specifications of this section.(3) An owner or operator may petition the executive director for an alternative to the CO or ammonia specifications of this section in accordance with §117.425 of this title.(f) Prohibition of circumvention.(1) The maximum rated capacity used to determine the applicability of the emission specifications in this section and the initial compliance demonstration, monitoring, testing requirements, and final control plan in §§117.435, 117.440, and 117.452 of this title (relating to Initial Demonstration of Compliance; Continuous Demonstration of Compliance; and Final Control Plan Procedures for Reasonably Available Control Technology) must be the greater of the following:(A) the maximum rated capacity as of December 31, 2012;(B) the maximum rated capacity after December 31, 2012; or(C) the maximum rated capacity authorized by a permit issued under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) after December 31, 2012.(2) A unit's classification is determined by the most specific classification applicable to the unit as of December 31, 2012. For example, a unit that is classified as a stationary gas-fired engine as of December 31, 2012, but subsequently is authorized to operate as a dual-fuel engine, is classified as a stationary gas-fired engine for the purposes of this chapter.(3) A source that met the definition of major source on December 31, 2012, is always classified as a major source for purposes of this chapter. A source that did not meet the definition of major source (i.e., was a minor source, or did not yet exist) on December 31, 2012, but becomes a major source at any time after December 31, 2012, is from that time forward always classified as a major source for purposes of this chapter.</content><note type="source"><p>Source Note: The provisions of this §117.405 adopted to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.410"><num value="117.410">§117.410</num><heading>Emission Specifications for Eight-Hour Attainment Demonstration</heading><content>(a) Emission specifications for eight-hour ozone attainment demonstration. For units located in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, or Tarrant County, no person shall allow the discharge into the atmosphere nitrogen oxides (NOX ) emissions in excess of the following emission specifications, in accordance with the applicable schedule in §117.9030(b) of this title (relating to Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources), except as provided in subsection (d) of this section:(1) gas-fired boilers:(A) with a maximum rated capacity equal to or greater than 100 million British thermal units per hour (MMBtu/hr), 0.020 pounds per million British thermal units (lb/MMBtu);(B) with a maximum rated capacity equal to or greater than 40 MMBtu/hr, but less than 100 MMBtu/hr, 0.030 lb/MMBtu; and(C) with a maximum rated capacity less than 40 MMBtu/hr, 0.036 lb/MMBtu (or alternatively, 30 parts per million by volume (ppmv) NOX , at 3.0% oxygen (O 2 ), dry basis);(2) liquid-fired boilers, 2.0 pounds per 1,000 gallons of liquid burned;(3) process heaters:(A) with a maximum rated capacity equal to or greater than 40 MMBtu/hr, 0.025 lb/MMBtu; and(B) with a maximum rated capacity less than 40 MMBtu/hr, 0.036 lb/MMBtu (or alternatively, 30 ppmv, at 3.0% O2 , dry basis);(4) stationary, reciprocating internal combustion engines: (A) gas-fired rich-burn engines:(i) fired on landfill gas, 0.60 grams per horsepower-hour (g/hp-hr); and(ii) all others, 0.50 g/hp-hr;(B) gas-fired lean-burn engines:(i) placed into service before June 1, 2007, that have not been modified, reconstructed, or relocated on or after June 1, 2007, 0.70 g/hp-hr; and(ii) placed into service, modified, reconstructed, or relocated on or after June 1, 2007:(I) fired on landfill gas, 0.60 g/hp-hr; and(II) all others, 0.50 g/hp-hr;(C) dual-fuel engines, 0.50 g/hp-hr;(D) diesel engines, excluding dual-fuel engines, placed into service before March 1, 2009, that have not been modified, reconstructed, or relocated on or after March 1, 2009, the lower of 11.0 g/hp-hr or the emission rate established by testing, monitoring, manufacturer's guarantee, or manufacturer's other data;(E) for diesel engines, excluding dual-fuel engines, not subject to subparagraph (D) of this paragraph:(i) with a horsepower (hp) rating of less than 50 hp that are installed, modified, reconstructed, or relocated on or after March 1, 2009, 5.0 g/hp-hr;(ii) with a hp rating of 50 hp or greater, but less than 100 hp, that are installed, modified, reconstructed, or relocated on or after March 1, 2009, 3.3 g/hp-hr;(iii) with a hp rating of 100 hp or greater, but less than 750 hp, that are installed, modified, reconstructed, or relocated on or after March 1, 2009, 2.8 g/hp-hr; and(iv) with a hp rating of 750 hp or greater that are installed, modified, reconstructed, or relocated on or after March 1, 2009, 4.5 g/hp-hr; and(F) for the purposes of this paragraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title (relating to General Definitions) and 40 Code of Federal Regulations (CFR) §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title (relating to Definitions), a used engine from anywhere outside that account;(5) stationary gas turbines:(A) rated at 10 megawatts (MW) or greater, 0.032 lb/MMBtu; (B) rated at 1.0 MW or greater, but less than 10 MW, 0.15 lb/MMBtu; and(C) rated at less than 1.0 MW, 0.26 lb/MMBtu;(6) duct burners used in turbine exhaust ducts, the corresponding gas turbine emission specification of paragraph (5) of this subsection;(7) kilns:(A) lime kilns, 3.7 pounds per ton (lb/ton) of calcium oxide, demonstrated either:(i) on an individual kiln basis; or(ii) on a site-wide production rate weighted average basis, using the following equation:Attached Graphic(B) brick and ceramic kilns, one of the following:(i) a 40% reduction from the daily NOX emissions reported to the Emissions Assessment Section for the calendar year 2000 Emissions Inventory. To ensure that this emission specification will result in a real 40% reduction in actual emissions, a consistent methodology must be used to calculate the 40% reduction;(ii) 0.175 lb/ton of product for brick kilns; or(iii) 0.27 lb/ton of product for ceramic kilns;(8) metallurgical furnaces:(A) heat treating furnaces, 0.087 lb/MMBtu. For heat treating furnaces equipped with NOX continuous emissions monitoring systems (CEMS) or predictive emissions monitoring systems (PEMS) that comply with §117.440 of this title (relating to Continuous Demonstration of Compliance), this emission specification only applies from March 1 to October 31 of any calendar year;(B) reheat furnaces, 0.10 lb/MMBtu. For reheat furnaces equipped with NOX CEMS or PEMS that comply with §117.440 of this title, this emission specification only applies from March 1 to October 31 of any calendar year; and(C) lead smelting blast (cupola) and reverberatory furnaces used in conjunction, the combined rate of 0.45 lb/ton product;(9) incinerators, either of the following:(A) an 80% reduction from the daily NOX emissions reported to the Emissions Assessment Section for the calendar year 2000 Emissions Inventory. To ensure that this emission specification will result in a real 80% reduction in actual emissions, a consistent methodology must be used to calculate the 80% reduction; or(B) 0.030 lb/MMBtu;(10) glass and fiberglass melting furnaces:(A) container glass melting furnaces:(i) 4.0 lb/ton of glass pulled during furnace operation equal to or greater than 25% of the permitted glass production capacity; and(ii) the applicable maximum allowable pound per hour NOX permit limit in a permit issued before June 1, 2007, during furnace operation less than 25% of the permitted glass production capacity;(B) mineral wool-type cold-top electric fiberglass melting furnaces, 4.0 lb/ton of product pulled;(C) mineral wool-type fiberglass regenerative furnaces, 1.45 lb/ton of product pulled; and(D) mineral wool-type fiberglass non-regenerative gas-fired furnaces, 3.1 lb/ton product pulled;(11) gas-fired curing ovens used for the production of mineral wool-type or textile-type fiberglass, 0.036 lb/MMBtu;(12) natural gas-fired ovens and heaters, 0.036 lb/MMBtu;(13) natural gas-fired dryers:(A) dryers used in organic solvent, printing ink, clay, brick, ceramic tile, calcining, and vitrifying processes, 0.036 lb/MMBtu; (B) spray dryers used in ceramic tile manufacturing processes, 0.15 lb/MMBtu; and(14) as an alternative to the emission specifications in paragraphs (1) - (13) of this subsection for units with an annual capacity factor of 0.0383 or less, 0.060 lb/MMBtu. The capacity factor as of December 31, 2000, must be used to determine whether the unit is eligible for the emission specification of this paragraph. A 12-month rolling average must be used to determine the annual capacity factor for units placed into service after December 31, 2000.(b) NOX averaging time. The emission specifications of subsection (a) of this section apply:(1) if the unit is operated with a NOX CEMS or PEMS under §117.440 of this title, either as:(A) a rolling 30-day average period, in the units of the applicable standard;(B) a block one-hour average, in the units of the applicable standard, or alternatively;(C) a block one-hour average, in pounds per hour, for boilers and process heaters, calculated as the product of the boiler's or process heater's maximum rated capacity and its applicable specification in lb/MMBtu; and(2) if the unit is not operated with a NOX CEMS or PEMS under §117.440 of this title, a block one-hour average, in the units of the applicable standard. Alternatively for boilers and process heaters, the emission specification may be applied in pounds per hour, as specified in paragraph (1)(C) of this subsection.(c) Related emissions. No person shall allow the discharge into the atmosphere from any unit subject to NOX emission specifications in subsection (a) of this section, emissions in excess of the following, except as provided in §117.425 of this title (relating to Alternative Case Specific Specifications) or paragraph (3) or (4) of this subsection.(1) Carbon monoxide (CO) emissions must not exceed 400 ppmv at 3.0% O2 , dry basis (or alternatively, 3.0 g/hp-hr for stationary internal combustion engines; or 775 ppmv at 7.0% O2 , dry basis for wood fuel-fired boilers or process heaters):(A) on a rolling 24-hour averaging period, for units equipped with CEMS or PEMS for CO; and(B) on a block one-hour averaging period, for units not equipped with CEMS or PEMS for CO.(2) For units that inject urea or ammonia into the exhaust stream for NOX control, ammonia emissions must not exceed 10 ppmv at 3.0% O2 , dry, for boilers and process heaters; 15% O2 , dry, for stationary gas turbines (including duct burners used in turbine exhaust ducts), gas-fired lean-burn engines, and diesel engines; 7.0% O2 , dry, for incinerators; and 3.0% O2 , dry, for all other units, based on:(A) a block one-hour averaging period for units not equipped with a CEMS or PEMS for ammonia; and(B) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for ammonia.(3) The correction of CO emissions to 3.0% O2 , dry basis, in paragraph (1) of this subsection does not apply to boilers and process heaters operating at less than 10% of maximum load and with stack O2 in excess of 15% (i.e., hot-standby mode).(4) The CO specifications in paragraph (1) of this subsection do not apply to incinerators subject to the CO limits of one of the following:(A) §111.121 of this title (relating to Single-, Dual-, and Multiple-Chamber Incinerators);(B) §113.2072 of this title (relating to Emission Limits) for hospital/medical/infectious waste incinerators; or(C) 40 CFR Part 264 or 265, Subpart O, for hazardous waste incinerators.(d) Compliance flexibility.(1) An owner or operator may use any of the following alternative methods to comply with the NOX emission specifications of this section:(A) §117.423 of this title (relating to Source Cap); or(B) §117.9800 of this title (relating to Use of Emission Credits for Compliance).(2) Section 117.425 of this title is not an applicable method of compliance with the NOX emission specifications of this section.(3) An owner or operator may petition the executive director for an alternative to the CO or ammonia specifications of this section in accordance with §117.425 of this title.(e) Prohibition of circumvention.(1) The maximum rated capacity used to determine the applicability of the emission specifications in this section and the initial compliance demonstration, monitoring, testing requirements, and final control plan in §§117.435, 117.440, and 117.454 of this title (relating to Initial Demonstration of Compliance; Continuous Demonstration of Compliance; and Final Control Plan Procedures for Attainment Demonstration Emission Specifications) must be the greater of the following:(A) the maximum rated capacity as of December 31, 2000;(B) the maximum rated capacity after December 31, 2000; or(C) the maximum rated capacity authorized by a permit issued under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) after December 31, 2000.(2) A unit's classification is determined by the most specific classification applicable to the unit as of December 31, 2000. For example, a unit that is classified as a stationary gas-fired engine as of December 31, 2000, but subsequently is authorized to operate as a dual-fuel engine, is classified as a stationary gas-fired engine for the purposes of this chapter.(3) Changes after December 31, 2000, to a unit subject to an emission specification in this section that result in increased NOX emissions from a unit not subject to an emission specification of this section, such as redirecting one or more fuel or waste streams containing chemical-bound nitrogen to an incinerator with a maximum rated capacity of less than 40 MMBtu/hr, or a flare, are only allowed if:(A) the increase in NOX emissions at the unit not subject to this section is determined using a CEMS or PEMS that meets the requirements of §117.440 of this title, or through stack testing that meets the requirements of §117.435 of this title; and(B) emission credits equal to the increase in NOX emissions at the unit not subject to this section are obtained and used in accordance with §117.9800 of this title.(4) A source that met the definition of major source on December 31, 2000, is always classified as a major source for purposes of this chapter. A source that did not meet the definition of major source (i.e., was a minor source, or did not yet exist) on December 31, 2000, but becomes a major source at any time after December 31, 2000, is from that time forward always classified as a major source for purposes of this chapter.(5) The availability under subsection (a)(14) of this section of an emission specification for units with an annual capacity factor of 0.0383 or less is based on the unit's status as of December 31, 2000. Reduced operation after December 31, 2000, cannot be used to qualify for a more lenient emission specification under subsection (a)(14) of this section than would otherwise apply to the unit.(f) Operating restrictions. No person may start or operate any stationary diesel or dual-fuel engine for testing or maintenance of the engine between the hours of 6:00 a.m. and noon, except:(1) for specific manufacturer's recommended testing requiring a run of over 18 consecutive hours;(2) to verify reliability of emergency equipment (e.g., emergency generators or pumps) immediately after unforeseen repairs. Routine maintenance such as an oil change is not considered to be an unforeseen repair; or(3) firewater pumps for emergency response training conducted from April 1 through October 31.</content><note type="source"><p>Source Note: The provisions of this §117.410 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.423"><num value="117.423">§117.423</num><heading>Source Cap</heading><content>(a) An owner or operator may achieve compliance with the nitrogen oxides (NOX ) emission specifications of §117.405 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) or §117.410 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration), by achieving equivalent NOX emission reductions obtained by compliance with a source cap emission limitation in accordance with the requirements of this section. Each equipment category at a source whose individual emission units would otherwise be subject to the NO X emission specifications of §117.405 or §117.410 of this title may be included in the source cap. Any equipment category included in the source cap must include all emission units belonging to that category. Equipment categories include, but are not limited to, the following: steam generation, electrical generation, and units with the same product outputs, such as ethylene cracking furnaces. All emission units not included in the source cap must comply with the requirements of §117.405 or §117.410 of this title.(b) The source cap allowable mass emission rate must be calculated as follows.(1) A rolling 30-day average emission cap must be calculated for all emission units included in the source cap using the following equation.Attached Graphic(2) A maximum daily cap must be calculated for all emission units included in the source cap using the following equation.Attached Graphic(3) Each emission unit included in the source cap is subject to the requirements of both paragraphs (1) and (2) of this subsection at all times.(4) For stationary internal combustion engines, the source cap allowable emission rate must be calculated in pounds per hour using the following equation.Attached Graphic(5) For stationary gas turbines, the source cap allowable emission rate must be calculated in pounds per hour using the following equations.Attached Graphic(c) The owner or operator who elects to comply with this section shall:(1) for each unit included in the source cap, either:(A) install, calibrate, maintain, and operate a continuous exhaust NOX monitor, carbon monoxide (CO) monitor, an oxygen (O2) (or carbon dioxide (CO2)) diluent monitor, and a totalizing fuel flow meter in accordance with the requirements of §117.440 of this title (relating to Continuous Demonstration of Compliance). The required continuous emissions monitoring systems (CEMS) and fuel flow meters must be used to measure NOX , CO, and O2 (or CO2) emissions and fuel use for each affected unit and must be used to demonstrate continuous compliance with the source cap;(B) install, calibrate, maintain, and operate a predictive emissions monitoring system (PEMS) and a totalizing fuel flow meter in accordance with the requirements of §117.440 of this title. The required PEMS and fuel flow meters must be used to measure NOX , CO, and O2 (or CO2) emissions and fuel flow for each affected unit and must be used to demonstrate continuous compliance with the source cap; or(C) for units not subject to continuous monitoring requirements, use the maximum emission rate as measured by hourly emission rate testing conducted in accordance with §117.435(d) of this title (relating to Initial Demonstration of Compliance) in lieu of CEMS or PEMS. Emission rates for these units are limited to the maximum emission rates obtained from testing conducted under §117.435(d) of this title; and(2) for each operating unit equipped with CEMS, either use a PEMS in accordance with §117.440 of this title, or the maximum emission rate as measured by hourly emission rate testing conducted in accordance with §117.435(d) of this title, to provide emissions compliance data during periods when the CEMS is off-line. The methods specified in 40 Code of Federal Regulations §75.46 must be used to provide emissions substitution data for units equipped with PEMS.(d) The owner or operator of any units subject to a source cap shall maintain daily records indicating the NOX emissions from each unit and the total fuel usage for each unit and include a total NOX emissions summation and total fuel usage for all units under the source cap on a daily basis. Records must also be retained in accordance with §117.445 of this title (relating to Notification, Recordkeeping, and Reporting Requirements).(e) The owner or operator of any units operating under this provision shall report any exceedance of the source cap emission limit within 48 hours to the appropriate regional office. The owner or operator shall then follow up within 21 days of the exceedance with a written report that includes an analysis of the cause for the exceedance with appropriate data to demonstrate the amount of emissions in excess of the applicable limit and the necessary corrective actions taken by the company to assure future compliance. Additionally, the owner or operator shall submit semiannual reports for the monitoring systems in accordance with §117.445 of this title.(f) The owner or operator shall demonstrate initial compliance with the source cap in accordance with the schedule specified in §117.9030 of this title (relating to Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources).(g) For compliance with §117.405 or §117.410 of this title, a unit that has been permanently retired or decommissioned and rendered inoperable may be included in the source cap under the following conditions.(1) Permanent shutdowns must have occurred after December 31, 2012, for units subject to §117.405 of this title, and December 31, 2000, for units subject to §117.410 of this title.(2) The source cap emission limit for retired units is calculated in accordance with subsection (b) of this section.(3) The actual heat input must be calculated according to subsection (b)(1) of this section. If the unit was not in service 24 consecutive months between January 1, 2012, and December 31, 2013, for units subject to §117.405 of this title, and between January 1, 2000, and December 31, 2001, for units subject to §117.410 of this title, the actual heat input must be the average daily heat input for the continuous time period that the unit was in service, consistent with the heat input used to represent the unit's emissions in the 2012 modeling inventory for units subject to §117.405 of this title, and in the 2000 attainment demonstration modeling inventory for units subject to §117.410 of this title. The maximum heat input must be the maximum heat input, as certified to the executive director, allowed or possible (whichever is lower) in a 24-hour period.(4) The owner or operator shall certify the unit's operational level and maximum rated capacity.(5) Emission reductions from permanent shutdowns or curtailments that have been used for netting or offset purposes under the requirements of Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) may not be included in the baseline for establishing the cap.(h) An owner or operator who chooses to use the source cap option shall include in the initial control plan, if required to be filed under §117.450 of this title (relating to Initial Control Plan Procedures), a plan for initial compliance. The owner or operator shall include in the initial control plan the identification of the election to use the source cap procedure as specified in this section to achieve compliance with this section and shall specifically identify all sources that will be included in the source cap. The owner or operator shall also include in the initial control plan the method of calculating the actual heat input for each unit included in the source cap, as specified in subsection (b)(1) of this section.(i) For the purposes of determining compliance with the source cap emission limit, the contribution of each affected unit that is operating during a startup, shutdown, or emissions event as defined in §101.1 of this title (relating to Definitions) must be calculated from the NOX emission rate, as measured by the initial demonstration of compliance, for that unit, unless the owner or operator provides data demonstrating to the satisfaction of the executive director that actual emissions were less than maximum emissions during such periods.</content><note type="source"><p>Source Note: The provisions of this §117.423 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.425"><num value="117.425">§117.425</num><heading>Alternative Case Specific Specifications</heading><content>(a) Where a person can demonstrate that an affected unit cannot attain the applicable requirements of the carbon monoxide (CO) or ammonia specifications of §117.405(d) of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) or §117.410(c) of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstrations), the executive director may approve emission specifications different from the CO or ammonia specifications in §117.405(d) or §117.410(c) of this title for that unit. The executive director:(1) shall consider on a case-by-case basis the technological and economic circumstances of the individual unit;(2) shall determine that such specifications are the result of the lowest emission specification the unit is capable of meeting after the application of controls to meet the nitrogen oxides emission specifications of §117.405 or §117.410 of this title, as applicable; and(3) in determining whether to approve alternative emission specifications, may take into consideration the ability of the plant where the unit is located to meet emission specifications through plant-wide averaging at maximum capacity.(b) Any owner or operator affected by the executive director's decision to deny an alternative case specific emission specification may file a motion to overturn the executive director's decision. The requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) apply. Executive director approval does not necessarily constitute satisfaction of all federal requirements nor eliminate the need for approval by the United States Environmental Protection Agency in cases where specified criteria for determining equivalency have not been clearly identified in applicable sections of this division.</content><note type="source"><p>Source Note: The provisions of this §117.425 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.430"><num value="117.430">§117.430</num><heading>Operating Requirements</heading><content>(a) The owner or operator shall operate any unit subject to the source cap emission limits of §117.423 of this title (relating to Source Cap) in compliance with those limitations.(b) All units subject to the emission specifications of §117.405 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) or §117.410 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) or §117.423 of this title must be operated so as to minimize nitrogen oxides (NOX ) emissions, consistent with the emission control techniques selected, over the unit's operating or load range during normal operations. Such operational requirements include the following.(1) Each boiler, except for wood-fired boilers, must be operated with oxygen (O2), carbon monoxide (CO), or fuel trim.(2) Each boiler and process heater controlled with forced draft flue gas recirculation (FGR) to reduce NOX emissions must be operated such that the proportional design rate of FGR is maintained, consistent with combustion stability, over the operating range.(3) Each boiler and process heater controlled with induced draft FGR to reduce NOX emissions must be operated such that the operation of FGR over the operating range is not restricted by artificial means.(4) Each unit controlled with steam or water injection must be operated such that injection rates are maintained to limit NOX concentrations to less than or equal to the NOX concentrations achieved at maximum rated capacity (corrected to 15% O2 on a dry basis for stationary gas turbines).(5) Each unit controlled with post-combustion control techniques must be operated such that the reducing agent injection rate is maintained to limit NOX concentrations to less than or equal to the NOX concentrations achieved at maximum rated capacity.(6) Each stationary internal combustion engine controlled with nonselective catalytic reduction must be equipped with an automatic air-fuel ratio (AFR) controller that operates on exhaust O2 or CO control and maintains AFR in the range required to meet the engine's applicable emission specifications.(7) Each stationary internal combustion engine must be checked for proper operation of the engine according to §117.8140(b) of this title (relating to Emission Monitoring for Engines).</content><note type="source"><p>Source Note: The provisions of this §117.430 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.435"><num value="117.435">§117.435</num><heading>Initial Demonstration of Compliance</heading><content>(a) The owner or operator of any unit subject to the emission specifications of this division shall test the unit as follows. (1) The unit must be tested for nitrogen oxides (NOX ), carbon monoxide (CO), and oxygen (O2) emissions while firing gaseous fuel or, as applicable, liquid and solid fuel.(2) Units that inject urea or ammonia into the exhaust stream for NOX control must be tested for ammonia emissions.(3) Initial demonstration of compliance testing must be performed in accordance with the schedule specified in §117.9030 of this title (relating to Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources).(b) The initial demonstration of compliance tests required by subsection (a) of this section must use the methods referenced in subsection (d) or (e) of this section and must be used for determination of initial compliance with the emission specifications of this division. Test results must be reported in the units of the applicable emission specifications and averaging periods.(c) Any continuous emissions monitoring system (CEMS) or any predictive emissions monitoring system (PEMS) required by §117.440 of this title (relating to Continuous Demonstration of Compliance) must be installed and operational before conducting testing under subsection (a) of this section. Verification of operational status must, at a minimum, include completion of the initial monitor certification and the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device or system.(d) Compliance with the emission specifications of this division for units operating without CEMS or PEMS must be demonstrated according to the requirements of §117.8000 of this title (relating to Stack Testing Requirements).(e) Initial compliance with the emission specifications of this division for units operating with CEMS or PEMS in accordance with §117.440 of this title, must be demonstrated after monitor certification testing using the CEMS or PEMS as follows.(1) For boilers and process heaters complying with a NOX emission specification in pounds per million British thermal units (lb/MMBtu) on a rolling 30-day average, NOX emissions from the unit are monitored for 30 successive unit operating days and the 30-day average emission rate is used to determine compliance with the NOX emission specification. The 30-day average emission rate is calculated as the average of all hourly emissions data recorded by the monitoring system during the 30-day test period.(2) For units complying with a NOX emission specification on a block one-hour average, any one-hour period while operating at the maximum rated capacity, or as near thereto as practicable is used to determine compliance with the NOX emission specification.(3) For units complying with a CO emission specification, on a rolling 24-hour average, any 24-hour period is used to determine compliance with the CO emission specification.(4) For units complying with §117.423 of this title (relating to Source Cap) a rolling 30-day average of total daily pounds of NOX emissions from the units are monitored (or calculated in accordance with §117.423(c) of this title) for 30 successive source operating days and the 30-day average emission rate is used to determine compliance with the NOX emission limit. The 30-day average emission rate is calculated as the average of all daily emissions data recorded by the monitoring and recording system during the 30-day test period. There must be no exceedances of the maximum daily cap during the 30-day test period.(f) Compliance stack test reports must include the information required in §117.8010 of this title (relating to Compliance Stack Test Reports).</content><note type="source"><p>Source Note: The provisions of this §117.435 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.440"><num value="117.440">§117.440</num><heading>Continuous Demonstration of Compliance</heading><content>(a) Totalizing fuel flow meters. The owner or operator of units listed in this subsection shall install, calibrate, maintain, and operate a totalizing fuel flow meter, with an accuracy of ± 5%, to individually and continuously measure the gas and liquid fuel usage. A computer that collects, sums, and stores electronic data from continuous fuel flow meters is an acceptable totalizer. The owner or operator must continuously operate the totalizing fuel flow meter at least 95% of the time when the unit is operating during a calendar year. For the purpose of compliance with this subsection for units having pilot fuel supplied by a separate fuel system or from an unmonitored portion of the same fuel system, the fuel flow to pilots may be calculated using the manufacturer's design flow rates rather than measured with a fuel flow meter. The calculated pilot fuel flow rate must be added to the monitored fuel flow when fuel flow is totaled.(1) The units are the following units subject to §117.405 (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) or §117.410 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstrations):(A) boilers (excluding wood-fired boilers that must comply by maintaining records of fuel usage as required in §117.445(f) of this title (relating to Notification, Recordkeeping, and Reporting Requirements) or monitoring in accordance with paragraph (2)(A) of this subsection);(B) process heaters;(C) duct burners used in turbine exhaust ducts;(D) stationary, reciprocating internal combustion engines; (E) stationary gas turbines;(F) lime kilns(G) brick and ceramic kilns;(H) heat treating furnaces;(I) reheat furnaces;(J) lead smelting blast (cupola) and reverberatory furnaces;(K) glass and fiberglass/mineral wool melting furnaces;(L) incinerators (excluding vapor streams resulting from vessel cleaning routed to an incinerator, provided that fuel usage is quantified using good engineering practices, including calculation methods in general use and accepted in new source review permitting in Texas. All other fuel and vapor streams must be monitored in accordance with this subsection);(M) gas-fired glass, fiberglass, and mineral wool curing ovens;(N) natural gas-fired ovens and heaters; and(O) natural gas-fired dryers used in organic solvent, printing ink, clay, brick, ceramic, and calcining and vitrifying processes. (2) The following are alternatives to the fuel flow monitoring requirements of paragraph (1) of this subsection.(A) Units operating with a nitrogen oxides (NOX ) and diluent continuous emissions monitoring system (CEMS) under subsection (f) of this section may monitor stack exhaust flow using the flow monitoring specifications of 40 Code of Federal Regulations (CFR) Part 60, Appendix B, Performance Specification 6 or 40 CFR Part 75, Appendix A.(B) Units that vent to a common stack with a NOX and diluent CEMS under subsection (f) of this section may use a single totalizing fuel flow meter.(C) Diesel engines operating with run time meters may meet the fuel flow monitoring requirements of this subsection through monthly fuel use records maintained for each engine.(D) Stationary reciprocating internal combustion engines and gas turbines equipped with a continuous monitoring system that continuously monitors horsepower and hours of operation are not required to install totalizing fuel flow meters. The continuous monitoring system must be installed, calibrated, maintained, and operated according to manufacturers' recommended procedures.(b) Oxygen (O2 ) monitors.(1) The owner or operator shall install, calibrate, maintain, and operate an O2 monitor to measure exhaust O2 concentration on the following units operated with an annual heat input greater than 2.2(1011 ) British thermal units per year (Btu/yr):(A) boilers with a rated heat input greater than or equal to 100 million British thermal units per hour (MMBtu/hr); and(B) process heaters with a rated heat input greater than or equal to 100 MMBtu/hr, except:(i) as provided in subsection (g) of this section; and(ii) for process heaters operating with a carbon dioxide (CO2 ) CEMS for diluent monitoring under subsection (f) of this section.(2) The O2 monitors required by this subsection are for process monitoring (predictive monitoring inputs, boiler trim, or process control) and are only required to meet the location specifications and quality assurance procedures referenced in subsection (f) of this section if O2 is the monitored diluent under that subsection. However, if new O2 monitors are required as a result of this subsection, the criteria in subsection (f) of this section should be considered the appropriate guidance for the location and calibration of the monitors.(c) NOX monitors.(1) The owner or operator of units listed in this paragraph shall install, calibrate, maintain, and operate a CEMS or predictive emissions monitoring system (PEMS) to monitor exhaust NOX . The units are:(A) units with a rated heat input greater than or equal to 100 MMBtu/hr that are subject to §117.405(a) or (b) or §117.410(a) of this title;(B) stationary gas turbines with a megawatt (MW) rating greater than or equal to 30 MW operated more than 850 hours per year;(C) units that use a chemical reagent for reduction of NOX;(D) units that the owner or operator elects to comply with the NOX emission specifications of §117.405(a) or (b) of this title or §117.410(a) of this title using a pound per MMBtu (lb/MMBtu) limit on a 30-day rolling average;(E) lime kilns; and(F) brick kilns and ceramic kilns.(2) The following units are not required to install CEMS or PEMS under this subsection;(A) units subject to the NOX CEMS requirements of 40 CFR Part 75; and (B) stationary diesel engines equipped with selective catalytic reduction (SCR) systems that meet the following criteria.(i) The SCR system must use a reductant other than the engine's fuel.(ii) The SCR system must operate with a diagnostic system that monitors reductant quality and tank levels. (iii) The diagnostic system must alert owners or operators to the need to refill the reductant tank before it is empty or to replace the reductant if the reductant does not meet applicable concentration specifications. (iv) If the SCR system uses input from an exhaust NOX sensor (or other sensor) to alert owners or operators when the reductant quality is inadequate, the reductant quality does not need to be monitored separately by the diagnostic system. (v) The reductant tank level must be monitored in accordance with the manufacturer's design to demonstrate compliance with this subparagraph. (vi) The method of alerting an owner or operator must be a visual or audible alarm.(3) The owner or operator shall use one of the following methods to provide substitute emissions compliance data during periods when the NOX monitor is off-line:(A) if the NOX monitor is a CEMS:(i) subject to 40 CFR Part 75, use the missing data procedures specified in 40 CFR Part 75, Subpart D (Missing Data Substitution Procedures); or(ii) subject to 40 CFR Part 75, Appendix E, use the missing data procedures specified in 40 CFR Part 75, Appendix E, §2.5 (Missing Data Procedures);(B) use 40 CFR Part 75, Appendix E monitoring in accordance with §117.1340(d) of this title (relating to Continuous Demonstration of Compliance);(C) if the NOX monitor is a PEMS:(i) use the methods specified in 40 CFR Part 75, Subpart D; or(ii) use calculations in accordance with §117.8110(b) of this title (relating to Emission Monitoring System Requirements for Utility Electric Generation Sources); or(D) the maximum block one-hour emission rate as measured during the initial demonstration of compliance required in §117.435(e) of this title (relating to Initial Demonstration of Compliance).(d) Ammonia monitoring requirements. The owner or operator of any unit subject to §117.405(a) or (b) or §117.410(a) of this title and the ammonia emission specification of §117.405(d)(2) or §117.410(c)(2) of this title shall monitor ammonia emissions from the unit according to the requirements of §117.8130 of this title (relating to Ammonia Monitoring). Units identified in subsection (c)(2)(B) of this section are exempt from the ammonia monitoring requirements of this subsection.(e) Carbon monoxide (CO) monitoring. The owner or operator shall monitor CO exhaust emissions from each unit listed in subsection (c)(1) of this section using one or more of the methods specified in §117.8120 of this title (relating to Carbon Monoxide (CO) Monitoring).(f) CEMS requirements. The owner or operator of any CEMS used to meet a pollutant monitoring requirement of this section shall comply with the requirements of §117.8100(a) of this title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources).(g) PEMS requirements. The owner or operator of any PEMS used to meet a pollutant monitoring requirement of this section shall comply with the following.(1) The PEMS must predict the pollutant emissions in the units of the applicable emission limitations of this division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources).(2) The PEMS must meet the requirements of §117.8100(b) of this title.(h) Engine monitoring. The owner or operator of any stationary gas engine subject to the emission specifications of this division shall stack test engine NOX and CO emissions as specified in §117.8140(a) of this title (relating to Emission Monitoring for Engines).(i) Run time meters. The owner or operator of any stationary gas turbine or stationary internal combustion engine claimed exempt using the exemption of §117.403(a)(7)(D), (8), or (9) or (b)(2)(D) of this title (relating to Exemptions) shall record the operating time with a non-resettable elapsed run time meter.(j) Data used for compliance. After the initial demonstration of compliance required by §117.435 of this title, the methods required in this section must be used to determine compliance with the emission specifications of §117.405(a) or (b) or §117.410(a) of this title. For enforcement purposes, the executive director may also use other commission compliance methods to determine whether the unit is in compliance with applicable emission specifications.(k) Testing requirements.(1) The owner or operator of units that are subject to the emission specifications of §117.405(a) or (b) or §117.410(a) of this title shall test the units as specified in §117.435 of this title in accordance with the applicable schedule specified in §117.9030 of this title (relating to Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources).(2) The owner or operator of any unit not equipped with CEMS or PEMS that are subject to the emission specifications of §117.405(a) or (b) of this title or §117.410(a) of this title shall retest the unit as specified in §117.435 of this title within 60 days after any modification that could reasonably be expected to increase the NOX emission rate.</content><note type="source"><p>Source Note: The provisions of this §117.440 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.445"><num value="117.445">§117.445</num><heading>Notification, Recordkeeping, and Reporting Requirements</heading><content>(a) Startup and shutdown records. For units subject to the startup and/or shutdown provisions of §101.222 of this title (relating to Demonstrations), hourly records must be made of startup and/or shutdown events and maintained for a period of at least two years. Records must be available for inspection by the executive director, the United States Environmental Protection Agency, and any local air pollution control agency having jurisdiction upon request. These records must include, but are not limited to: type of fuel burned; quantity of each type of fuel burned; and the date, time, and duration of the procedure.(b) Notification. The owner or operator of a unit subject to the emission specifications of §117.405(a) or (b) of this title (relating to Emission Specifications for Reasonably Available Control Technology) or §117.410(a) of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) shall submit written notification of any continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) relative accuracy test audit (RATA) conducted under §117.440 of this title (relating to Continuous Demonstration of Compliance) or any testing conducted under §117.435 of this title (relating to Initial Demonstration of Compliance) at least 15 days in advance of the date of the RATA or testing to the appropriate regional office and any local air pollution control agency having jurisdiction.(c) Reporting of test results. The owner or operator of an affected unit shall furnish the Office of Compliance and Enforcement, the appropriate regional office, and any local air pollution control agency having jurisdiction a copy of any testing conducted under §117.435 of this title and any CEMS or PEMS RATA conducted under §117.440 of this title:(1) within 60 days after completion of such testing or evaluation; and(2) not later than the compliance schedule specified in §117.9030 of this title (relating to Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources).(d) Semiannual reports. The owner or operator of a unit required to install a CEMS or PEMS under §117.440 of this title shall report in writing to the executive director on a semiannual basis any exceedance of the applicable emission specifications of this division and the monitoring system performance. All reports must be postmarked or received by the 30th day following the end of each calendar semiannual period. Written reports must include the following information:(1) the magnitude of excess emissions computed in accordance with 40 Code of Federal Regulations §60.13(h), any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the unit operating time during the reporting period. For units complying with §117.423 of this title (relating to Source Cap), excess emissions are each daily period that the total nitrogen oxides (NOX ) emissions exceed the rolling 30-day average or the maximum daily NOX cap;(2) specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the affected unit, the nature and cause of any malfunction (if known), and the corrective action taken or preventative measures adopted; (3) the date and time identifying each period when the continuous monitoring system was inoperative, except for zero and span checks and the nature of the system repairs or adjustments;(4) when no excess emissions have occurred or the continuous monitoring system has not been inoperative, repaired, or adjusted, such information must be stated in the report; and(5) if the total duration of excess emissions for the reporting period is less than 1.0% of the total unit operating time for the reporting period and the CEMS or PEMS downtime for the reporting period is less than 5.0% of the total unit operating time for the reporting period, only a summary report form (as outlined in the latest edition of the commission's Guidance for Preparation of Summary, Excess Emission, and Continuous Monitoring System Reports) must be submitted, unless otherwise requested by the executive director. If the total duration of excess emissions for the reporting period is greater than or equal to 1.0% of the total unit operating time for the reporting period or the CEMS or PEMS downtime for the reporting period is greater than or equal to 5.0% of the total unit operating time for the reporting period, a summary report and an excess emission report must both be submitted.(e) Reporting for engines. The owner or operator of any gas-fired engine subject to the emission specifications in §117.405 or §117.410 of this title shall report in writing to the executive director on a semiannual basis any excess emissions and the air-fuel ratio monitoring system performance. All reports must be postmarked or received by the 30th day following the end of each calendar semiannual period. Written reports must include the following information:(1) the magnitude of excess emissions (based on the quarterly emission checks of §117.430(b)(7) of this title (relating to Operating Requirements) and the biennial emission testing required for demonstration of emissions compliance in accordance with §117.440(h) of this title, computed in pounds per hour and grams per horsepower-hour, any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the engine operating time during the reporting period; and(2) specific identification, to the extent feasible, of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the engine or emission control system, the nature and cause of any malfunction (if known), and the corrective action taken or preventative measures adopted.(f) Recordkeeping. The owner or operator of a unit subject to the requirements of this division shall maintain written or electronic records of the data specified in this subsection. Such records must be kept for a period of at least five years and must be made available upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction. The records must include:(1) for each unit subject to §117.440(a) of this title, records of annual fuel usage;(2) for each unit using a CEMS or PEMS in accordance with §117.440 of this title, monitoring records of:(A) hourly emissions and fuel usage (or stack exhaust flow) for units complying with an emission specification enforced on a block one-hour average; or(B) daily emissions and fuel usage (or stack exhaust flow) for units complying with an emission specification enforced on a daily or rolling 30-day average. Emissions must be recorded in units of:(i) pounds per million British thermal units (lb/MMBtu) heat input; and(ii) pounds or tons per day;(3) for each stationary internal combustion engine subject to the emission specifications of this division, records of:(A) emissions measurements required by:(i) §117.430(b)(7) of this title; and(ii) §117.440(h) of this title;(B) catalytic converter, air-fuel ratio controller, or other emissions-related control system maintenance, including the date and nature of corrective actions taken; and(C) daily average horsepower and total daily hours of operation for each engine that the owner or operator elects to use the alternative monitoring system allowed under §117.440(a)(2)(D) of this title;(4) for units claimed exempt from emission specifications using the exemption of §117.403(a)(7)(D), (8), or (9) or (b)(2)(D) of this title (relating to Exemptions), records of monthly hours of operation, for exemptions based on hours per year of operation. In addition, for each turbine or engine claimed exempt under §117.403(a)(7)(D) or (b)(2)(D) of this title, written records must be maintained of the purpose of turbine or engine operation and, if operation was for an emergency situation, identification of the type of emergency situation and the start and end times and date(s) of the emergency situation;(5) records of ammonia measurements specified in §117.440(d) of this title;(6) records of carbon monoxide measurements specified in §117.440(e) of this title;(7) records of the results of initial certification testing, evaluations, calibrations, checks, adjustments, and maintenance of CEMS or PEMS;(8) records of the results of performance testing, including initial demonstration of compliance testing conducted in accordance with §117.435 of this title;(9) for each stationary diesel or dual-fuel engine, records of each time the engine is operated for testing and maintenance of the engine, including:(A) date(s) of operation;(B) start and end times of operation;(C) identification of the engine; and(D) total hours of operation for each month and for the most recent 12 consecutive months; and(10) for lime kilns that comply with the alternative site-wide production rate weighted average emission specification in §117.410(a)(7)(A)(ii) of this title, daily records of:(A) average NOX emission rates in pounds per ton (lb/ton) of calcium oxide (CaO) for each kiln;(B) production rate of CaO for each kiln in tons per day; and(C) site-wide production rate weighted average NOX emission rate in lb/ton of CaO.</content><note type="source"><p>Source Note: The provisions of this §117.445 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.450"><num value="117.450">§117.450</num><heading>Initial Control Plan Procedures</heading><content>(a) The owner or operator of any unit at a major source of nitrogen oxides (NOX ) in the Dallas-Fort Worth eight-hour ozone nonattainment area that is subject to §117.405(a) or (b) of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) or §117.410(a) of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) shall submit an initial control plan. The control plan must include:(1) a list of all combustion units at the account that are listed in §117.405(a) or (b) or §117.410(a) of this title. The list must include for each unit:(A) the maximum rated capacity;(B) anticipated annual capacity factor;(C) estimated or measured NOX emission data in the units associated with the category of equipment from §117.405(a) or (b) or §117.410(a) of this title;(D) the method of determination for the NOX emission data required by subparagraph (C) of this paragraph;(E) the facility identification number and emission point number as submitted to the Emissions Assessment Section of the commission; and(F) the emission point number as listed on the Maximum Allowable Emissions Rate Table of any applicable commission permit;(2) identification of all units with a claimed exemption from the emission specifications of §117.405(a) or (b) or §117.410(a) of this title and the rule basis for the claimed exemption;(3) identification of the election to use the source cap emission limit as specified in §117.423 of this title (relating to Source Cap) to achieve compliance with this rule and a list of the units to be included in the source cap;(4) a list of units to be controlled and the type of control to be applied for all such units, including an anticipated construction schedule;(5) a list of units requiring operating modifications to comply with §117.430(b) of this title (relating to Operating Requirements) and the type of modification to be applied for all such units, including an anticipated construction schedule;(6) for units required to install totalizing fuel flow meters in accordance with §117.440(a) of this title (relating to Continuous Demonstration of Compliance), indication of whether the devices are currently in operation, and if so, whether they have been installed as a result of the requirements of this chapter; and(7) for units required to install continuous emissions monitoring systems or predictive emissions monitoring systems in accordance with §117.440 of this title, indication of whether the devices are currently in operation, and if so, whether they have been installed as a result of the requirements of this chapter.(b) The initial control plan must be submitted to the Office of Compliance and Enforcement, the appropriate regional office, and the Office of Air by the applicable date specified for initial control plans in §117.9030 of this title (relating to Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources).</content><note type="source"><p>Source Note: The provisions of this §117.450 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.452"><num value="117.452">§117.452</num><heading>Final Control Plan Procedures for Reasonably Available Control Technology</heading><content>(a) The owner or operator of any unit subject to §117.405 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) at a major source of nitrogen oxides (NOX ) shall submit a final control report to show compliance with the requirements of §117.405 of this title. The report must include:(1) the section used to demonstrate compliance, either:(A) §117.405 of this title;(B) §117.423 of this title (relating to Source Cap); or(C) §117.9800 of this title (relating to Use of Emission Credits for Compliance);(2) the method of NOX control for each unit;(3) the emissions measured by testing required in §117.435 of this title (relating to Initial Demonstration of Compliance);(4) the submittal date, and whether sent to the central or the regional office (or both), of any compliance stack test report or monitor certification report required by §117.435 of this title that is not being submitted concurrently with the final compliance report; and(5) the specific rule citation for any unit with a claimed exemption from the emission specification of §117.405 of this title.(b) For sources complying with §117.423 of this title, in addition to the requirements of subsection (a) of this section, the owner or operator shall submit:(1) the calculations used to calculate the 30-day average and maximum daily source cap allowable emission rates;(2) a list containing, for each unit in the cap:(A) the average daily heat input, Hi , specified in §117.423(b)(1) of this title;(B) the maximum daily heat input, Hmi , specified in §117.423(b)(2) of this title;(C) the method of monitoring emissions; and(D) the method of providing substitute emissions data when the NOX monitoring system is not providing valid data; and(3) an explanation of the basis of the values of Hi and Hmi , specified in §117.423(b)(1) and (2) of this title.(c) The report must be submitted to the Office of Compliance and Enforcement, the appropriate regional office, and the Office of Air by the applicable date specified for final control plans in §117.9030(a) of this title (relating to Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources). The plan must be updated with any emission compliance measurements submitted for units using continuous emissions monitoring system or predictive emissions monitoring system and complying with the source cap rolling 30-day average emission limit, according to the applicable schedule given in §117.9030(a) of this title.</content><note type="source"><p>Source Note: The provisions of this §117.452 adopted to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.454"><num value="117.454">§117.454</num><heading>Final Control Plan Procedures for Attainment Demonstration Emission Specifications</heading><content>(a) The owner or operator of any unit subject to §117.410 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) at a major source of nitrogen oxides (NOX ) shall submit a final control report to show compliance with the requirements of §117.410 of this title. The report must include:(1) the section used to demonstrate compliance, either:(A) §117.410 of this title;(B) §117.423 of this title (relating to Source Cap); or(C) §117.9800 of this title (relating to Use of Emission Credits for Compliance);(2) the method of NOX control for each unit;(3) the emissions measured by testing required in §117.435 of this title (relating to Initial Demonstration of Compliance);(4) the submittal date, and whether sent to the central or the regional office (or both), of any compliance stack test report or monitor certification report required by §117.435 of this title that is not being submitted concurrently with the final compliance report; and(5) the specific rule citation for any unit with a claimed exemption from the emission specification of §117.410 of this title.(b) For sources complying with §117.423 of this title, in addition to the requirements of subsection (a) of this section, the owner or operator shall submit:(1) the calculations used to calculate the 30-day average and maximum daily source cap allowable emission rates;(2) a list containing, for each unit in the cap:(A) the average daily heat input, Hi , specified in §117.423(b)(1) of this title;(B) the maximum daily heat input, Hmi , specified in §117.423(b)(2) of this title;(C) the method of monitoring emissions; and(D) the method of providing substitute emissions data when the NOX monitoring system is not providing valid data; and(3) an explanation of the basis of the values of Hi and Hmi , specified in §117.423(b)(1) and (2) of this title.(c) The report must be submitted to the Office of Compliance and Enforcement, the appropriate regional office, and the Office of Air by the applicable date specified for final control plans in §117.9030 of this title (relating to Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources). The plan must be updated with any emission compliance measurements submitted for units using continuous emissions monitoring system or predictive emissions monitoring system and complying with the source cap rolling 30-day average emission limit, according to the applicable schedule given in §117.9030 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.454 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scB/s117.456"><num value="117.456">§117.456</num><heading>Revision of Final Control Plan</heading><content>A revised final control plan may be submitted by the owner or operator, along with any required permit applications. Such a plan must adhere to the requirements and the final compliance dates of this division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources).(1) For sources complying with §117.405 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) or §117.410 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration), replacement new units may be included in the control plan.(2) For sources complying with §117.423 of this title (relating to Source Cap), any new unit must be included in the source cap, if the unit belongs to an equipment category that is included in the source cap.(3) The revision of the final control plan is subject to the review and approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §117.456 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c117/scC"><num value="C">SUBCHAPTER C</num><heading>COMBUSTION CONTROL AT MAJOR UTILITY ELECTRIC GENERATION SOURCES IN OZONE NONATTAINMENT AREAS</heading><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1000"><num value="117.1000">§117.1000</num><heading>Applicability</heading><content>(a) The provisions of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources) apply to utility boilers, auxiliary steam boilers, stationary gas turbines, and duct burners in turbine exhaust ducts used in an electric power generating system, as defined in §117.10 of this title (relating to Definitions), that is located within the Beaumont-Port Arthur ozone nonattainment area and is owned or operated by:(1) a municipality or a Public Utility Commission of Texas (PUC) regulated utility, or any of their successors, regardless of whether the successor is a municipality or is regulated by the PUC; or(2) an electric cooperative, municipality, river authority, or public utility.(b) The provisions of this division are applicable for the life of each affected unit within an electric power generating system or until this division or sections of this title that are applicable to an affected unit are rescinded.</content><note type="source"><p>Source Note: The provisions of this §117.1000 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1003"><num value="117.1003">§117.1003</num><heading>Exemptions</heading><content>(a) Reasonably available control technology. Units exempted from the provisions of §§117.1005, 117.1015, and 117.1040 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT); Alternative System-Wide Emission Specifications; and Continuous Demonstration of Compliance), except as specified in §117.1040(h) - (j) of this title, include the following: (1) any new units placed into service after November 15, 1992; (2) any utility boiler or auxiliary steam boiler with an annual heat input less than or equal to 2.2(1011 ) British thermal units per year; or (3) stationary gas turbines and engines, that are: (A) used solely to power other engines or gas turbines during startups; or (B) demonstrated to operate less than 850 hours per year, based on a rolling 12-month average. (b) Emission specifications for attainment demonstration. Stationary gas turbines and engines that are used solely to power other engines or gas turbines during startups are exempt from the provisions of §§117.1010, 117.1020, and 117.1040 of this title (relating to Emission Specifications for Attainment Demonstration; System Cap; and Continuous Demonstration of Compliance), except as specified in §117.1040(i) of this title. (c) Emergency fuel oil firing. (1) The fuel oil firing emission specifications of §§117.1005(c), 117.1010(a), 117.1015(b), and 117.1020 of this title do not apply during an emergency operating condition declared by the Electric Reliability Council of Texas or the Southeastern Electric Reliability Council, or any other emergency operating condition that necessitates oil firing. All findings that emergency operating conditions exist are subject to the approval of the executive director. (2) The owner or operator of an affected unit shall give the executive director and any local air pollution control agency having jurisdiction verbal notification as soon as possible but no later than 48 hours after declaration of the emergency. Verbal notification must identify the anticipated date and time oil firing will begin, duration of the emergency period, affected oil-fired equipment, and quantity of oil to be fired in each unit, and must be followed by written notification containing this information no later than five days after declaration of the emergency. (3) The owner or operator of an affected unit shall give the executive director and any local air pollution control agency having jurisdiction final written notification as soon as possible but no later than two weeks after the termination of emergency fuel oil firing. Final written notification must identify the actual dates and times that oil firing began and ended, duration of the emergency period, affected oil-fired equipment, and quantity of oil fired in each unit.</content><note type="source"><p>Source Note: The provisions of this §117.1003 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1005"><num value="117.1005">§117.1005</num><heading>Emission Specifications for Reasonably Available Control Technology (RACT)</heading><content>(a) No person shall allow the discharge into the atmosphere from any utility boiler or auxiliary steam boiler, emissions of nitrogen oxides (NOX ) in excess of 0.26 pounds per million British thermal units (lb/MMBtu) heat input on a rolling 24-hour average and 0.20 lb/MMBtu heat input on a 30-day rolling average while firing natural gas or a combination of natural gas and waste oil. (b) No person shall allow the discharge into the atmosphere from any utility boiler, NOX emissions in excess of 0.38 lb/MMBtu heat input for tangentially-fired units on a rolling 24-hour averaging period or 0.43 lb/MMBtu heat input for wall-fired units on a rolling 24-hour averaging period while firing coal. (c) No person shall allow the discharge into the atmosphere from any utility boiler or auxiliary steam boiler, NO X emissions in excess of 0.30 lb/MMBtu heat input on a rolling 24-hour averaging period while firing fuel oil only. (d) No person shall allow the discharge into the atmosphere from any utility boiler or auxiliary steam boiler, NO X emissions in excess of the heat input weighted average of the applicable emission specifications specified in subsections (a) and (c) of this section on a rolling 24-hour averaging period while firing a mixture of natural gas and fuel oil, as follows. Attached Graphic(e) Each auxiliary steam boiler that is an affected facility as defined by New Source Performance Standards (NSPS) 40 Code of Federal Regulations Part 60, Subparts D, Db, or Dc is limited to the applicable NSPS NO X emission limit, unless the boiler is also subject to a more stringent permit emission limit, in which case the more stringent emission limit applies. Each auxiliary steam boiler subject to an emission specification under this subsection is not subject to the emission specifications of subsection (a), (c), or (d) of this section. (f) No person shall allow the discharge into the atmosphere from any stationary gas turbine with a megawatt (MW) rating greater than or equal to 30 MW and an annual electric output in megawatt-hours (MW-hr) of greater than or equal to the product of 2,500 hours and the MW rating of the unit, NOX emissions in excess of a block one-hour average of: (1) 42 parts per million by volume (ppmv) at 15% oxygen (O2), dry basis, while firing natural gas; and (2) 65 ppmv at 15% O2, dry basis, while firing fuel oil. (g) No person shall allow the discharge into the atmosphere from any stationary gas turbine used for peaking service with an annual electric output in MW-hr of less than the product of 2,500 hours and the MW rating of the unit NOX emissions in excess of a block one-hour average of: (1) 0.20 lb/MMBtu heat input while firing natural gas; and (2) 0.30 lb/MMBtu heat input while firing fuel oil. (h) No person shall allow the discharge into the atmosphere from any utility boiler or auxiliary steam boiler subject to the NO X emission specifications specified in subsections (a) - (e) of this section, carbon monoxide (CO) emissions in excess of 400 ppmv at 3.0% O2, dry (or alternatively, 0.30 lb/MMBtu heat input for gas-fired units, 0.31 lb/MMBtu heat input for oil-fired units, and 0.33 lb/MMBtu heat input for coal-fired units), based on: (1) a one-hour average for units not equipped with a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) for CO; or (2) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for CO. (i) No person shall allow the discharge into the atmosphere from any stationary gas turbine with a MW rating greater than or equal to 10 MW, CO emissions in excess of a block one-hour average of 132 ppmv at 15% O2, dry basis. (j) No person shall allow the discharge into the atmosphere from any unit subject to this section, ammonia emissions in excess of 20 ppmv based on a block one-hour averaging period. (k) For purposes of this subchapter, the following apply. (1) The lower of any permit NOX emission limit in effect on June 9, 1993, under a permit issued in accordance with Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) and the NOX emission specifications of subsections (a) - (g) of this section apply, except that gas-fired boilers operating under a permit issued after March 3, 1982, with a NOX emission limit of 0.12 lb/MMBtu heat input, are limited to that rate for the purposes of this subchapter. (2) For any unit placed into service after June 9, 1993, and prior to the final compliance date as specified in §117.9100 of this title (relating to Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources) as functionally identical replacement for an existing unit or group of units subject to the provisions of this chapter, the higher of any permit NOX emission limit under a permit issued after June 9, 1993, in accordance with Chapter 116 of this title and the emission specifications of subsections (a) - (g) of this section apply. Any emission credits resulting from the operation of such replacement units are limited to the cumulative maximum rated capacity of the units replaced. The inclusion of such new units is an optional method for complying with the emission specifications of §117.1015 of this title (relating to Alternative System-Wide Emission Specifications). Compliance with this paragraph does not eliminate the requirement for new units to comply with Chapter 116 of this title. (l) This section no longer applies to any utility boiler after the appropriate compliance date(s) for emission specifications for attainment demonstration given in §117.9100(2) of this title.</content><note type="source"><p>Source Note: The provisions of this §117.1005 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1010"><num value="117.1010">§117.1010</num><heading>Emission Specifications for Attainment Demonstration</heading><content>(a) Nitrogen oxides (NOX ) emission specifications. The owner or operator of each utility boiler shall ensure that emissions of NOX do not exceed 0.10 pounds per million British thermal units (lb/MMBtu) heat input, on a daily average, except as provided in §117.1020 or §117.9800 of this title (relating to System Cap; and Use of Emission Credits for Compliance). (b) Related emissions. No person shall allow the discharge into the atmosphere from any unit subject to the NO X emission specifications specified in subsection (a) of this section: (1) carbon monoxide (CO) emissions in excess of 400 parts per million by volume (ppmv) at 3.0% oxygen (O2), dry (or alternatively, 0.30 lb/MMBtu heat input for gas-fired units, 0.31 lb/MMBtu heat input for oil-fired units, and 0.33 lb/MMBtu heat input for coal-fired units), based on: (A) a one-hour average for units not equipped with a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) for CO; or (B) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for CO; and (2) for units that inject urea or ammonia into the exhaust stream for NOX control, ammonia emissions in excess of 10 ppmv, at 3.0% O2, dry, for boilers and 15% O2, dry, for stationary gas turbines (including duct burners used in turbine exhaust ducts), based on: (A) a block one-hour averaging period for units not equipped with a CEMS or PEMS for ammonia; or (B) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for ammonia. (c) Compliance flexibility. (1) An owner or operator may use either of the following alternative methods of compliance with the NOX emission specifications of this section: (A) §117.1020 of this title; or (B) §117.9800 of this title. (2) An owner or operator may petition the executive director for an alternative to the CO or ammonia specifications of this section in accordance with §117.1025 of this title (relating to Alternative Case Specific Specifications). (3) Section 117.1015 of this title (relating to Alternative System-Wide Emission Specifications) and §117.1025 of this title are not alternative methods of compliance with the NOX emission specifications of this section.</content><note type="source"><p>Source Note: The provisions of this §117.1010 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1015"><num value="117.1015">§117.1015</num><heading>Alternative System-Wide Emission Specifications</heading><content>(a) An owner or operator of any gaseous- or coal-fired utility boiler or stationary gas turbine may achieve compliance with the nitrogen oxides (NOX ) emission specifications of §117.1005 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) by achieving compliance with a system-wide emission specification. Any owner or operator who elects to comply with system-wide emission specifications shall reduce emissions of NO X from affected units so that, if all such units were operated at their maximum rated capacity, the system-wide emission rate from all units in the system as defined in §117.10 of this title (relating to Definitions) would not exceed the system-wide emission specification as defined in §117.10 of this title. (1) The following units must comply with the individual emission specifications of §117.1005 of this title and must not be included in the system-wide emission specification: (A) gas turbines used for peaking service subject to the emission specifications of §117.1005(g) of this title; and (B) auxiliary steam boilers subject to the emission specifications of §117.1005(a), (c), (d), or (e) of this title. (2) Coal-fired utility boilers must have a separate system average under this section, limited to those units. (3) Oil-fired utility boilers must have a separate system average under this section, limited to those units. The NOX emission specification assigned to each oil-fired unit in the system must not exceed 0.5 pounds per million British thermal units (lb/MMBtu) based on a rolling 24-hour average. (b) The owner or operator shall establish enforceable emission limits for each affected unit in the system calculated in accordance with the maximum rated capacity averaging in this section as follows: (1) for each gas-fired unit in the system, in lb/MMBtu: (A) on a rolling 24-hour averaging period; and (B) on a rolling 30-day averaging period; (2) for each coal-fired unit in the system, in lb/MMBtu on a rolling 24-hour averaging period; (3) for stationary gas turbines, in the units of the appropriate emission specification of §117.1005 of this title; and (4) for each fuel oil-fired unit in the system, in lb/MMBtu on a rolling 24-hour averaging period. (c) An owner or operator of any gaseous and liquid fuel-fired utility boiler or gas turbine shall: (1) comply with the assigned maximum allowable emission rates for gas fuel while firing natural gas only; (2) comply with the assigned maximum allowable emission rate for liquid fuel while firing liquid fuel only; and (3) comply with a limit calculated as the actual heat input weighted sum of the assigned gas-firing, 24-hour average, allowable emission specification and the assigned liquid-firing allowable emission specification while operating on liquid and gaseous fuel concurrently. (d) Solely for purposes of calculating the system-wide emission specification, the allowable mass emission rate for each affected unit must be calculated from the emission specifications of §117.1005 of this title, as follows. (1) The NOX emissions rate (in pounds per hour) for each affected utility boiler is determined by the following equation. Attached Graphic(2) The NOX emissions rate (in pounds per hour) for each affected stationary gas turbine is determined by the following equations. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §117.1015 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1020"><num value="117.1020">§117.1020</num><heading>System Cap</heading><content>(a) An owner or operator of an electric generating facility (EGF) may achieve compliance with the nitrogen oxides (NOX ) emission specifications of §117.1010 of this title (relating to Emission Specifications for Attainment Demonstration) by achieving equivalent NOX emission reductions obtained by compliance with a daily and 30-day system cap emission limitation in accordance with the requirements of this section.(b) Each EGF within an electric power generating system, as defined in §117.10 of this title (relating to Definitions), that would otherwise be subject to the NOX emission rates of §117.1010 of this title must be included in the system cap.(c) The system cap must be calculated as follows.(1) A rolling 30-day average emission cap must be calculated using the following equation.Attached Graphic(2) A maximum daily cap must be calculated using the following equation.Attached Graphic(3) Each EGF in the system cap is subject to the emission limits of both paragraphs (1) and (2) of this subsection at all times.(d) The NOX emissions monitoring required by §117.1040 of this title (relating to Continuous Demonstration of Compliance) for each EGF in the system cap must be used to demonstrate continuous compliance with the system cap.(e) For each operating EGF, the owner or operator shall use one of the following methods to provide substitute emissions compliance data during periods when the NOX monitor is off-line:(1) if the NOX monitor is a continuous emissions monitoring system (CEMS):(A) subject to 40 Code of Federal Regulations (CFR) Part 75, use the missing data procedures specified in 40 CFR Part 75, Subpart D (Missing Data Substitution Procedures); or(B) subject to 40 CFR Part 75, Appendix E, use the missing data procedures specified in 40 CFR Part 75, Appendix E, §2.5 (Missing Data Procedures);(2) use Appendix E monitoring in accordance with §117.1040(d) of this title;(3) if the NOX monitor is a predictive emissions monitoring system (PEMS):(A) use the methods specified in 40 CFR Part 75, Subpart D; or(B) use calculations in accordance with §117.8110(b) of this title (relating to Emission Monitoring System Requirements for Utility Electric Generation Sources); or(4) use the maximum block one-hour emission rate as measured by the 30-day testing.(f) The owner or operator of any EGF subject to a system cap shall maintain daily records indicating the NOX emissions and fuel usage from each EGF and summations of total NOX emissions and fuel usage for all EGFs under the system cap on a daily basis. Records must also be retained in accordance with §117.1045 of this title (relating to Notification, Recordkeeping, and Reporting Requirements).(g) The owner or operator of any EGF subject to a system cap shall report any exceedance of the system cap emission limit within 48 hours to the appropriate regional office. The owner or operator shall then follow up within 21 days of the exceedance with a written report to the regional office that includes an analysis of the cause for the exceedance with appropriate data to demonstrate the amount of emissions in excess of the applicable limit and the necessary corrective actions taken by the company to assure future compliance. Additionally, the owner or operator shall submit semiannual reports for the monitoring systems in accordance with §117.1045 of this title.(h) The owner or operator of any EGF subject to a system cap shall demonstrate initial compliance with the system cap in accordance with the schedule specified in §117.9100 of this title (relating to Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources).(i) An EGF that is permanently retired or decommissioned and rendered inoperable may be included in the system cap emission limit, provided that the permanent shutdown occurred after January 1, 1999. The system cap emission limit is calculated in accordance with subsection (b) of this section.(j) Emission reductions from shutdowns or curtailments that have been used for netting or offset purposes under the requirements of Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) may not be included in the baseline for establishing the cap.(k) For the purposes of determining compliance with the system cap emission limit, the contribution of each affected EGF that is operating during a startup, shutdown, or emissions event as defined in §101.1 of this title (relating to Definitions) must be calculated from the NOX emission rate measured by the NOX monitor, if operating properly. If the NOX monitor is not operating properly, the substitute data procedures identified in subsection (e) of this section must be used. If neither the NO X monitor nor the substitute data procedure are operating properly, the owner or operator shall use the maximum daily rate measured during the initial demonstration of compliance, unless the owner or operator provides data demonstrating to the satisfaction of the executive director and the United States Environmental Protection Agency that actual emissions were less than maximum emissions during such periods.(l) An owner or operator of a source of NOX who is participating in the system cap under this section may exceed their system cap provided that the owner or operator is complying with the requirements of §117.9800 of this title (relating to Use of Emission Credits for Compliance) or Chapter 101, Subchapter H, Division 1 or 4 of this title (relating to Emission Credit Banking and Trading; and Discrete Emission Credit Banking and Trading).(m) In the event that a unit within an electric power generating system is sold or transferred, the unit must become subject to the transferee's system cap.</content><note type="source"><p>Source Note: The provisions of this §117.1020 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective April 19, 2012, 37 TexReg 2655.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1025"><num value="117.1025">§117.1025</num><heading>Alternative Case Specific Specifications</heading><content>(a) Where a person can demonstrate that an affected unit cannot attain the applicable requirements of §117.1005 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)), or the carbon monoxide (CO) or ammonia specifications of §117.1010(b) of this title (relating to Emission Specifications for Attainment Demonstration), the executive director may approve emission specifications different from §117.1005 of this title or the CO or ammonia specifications in §117.1010(b) of this title for that unit. The executive director:(1) shall consider on a case-by-case basis the technological and economic circumstances of the individual unit;(2) shall determine that such specifications are the result of the lowest emission limitation the unit is capable of meeting after the application of controls to meet the nitrogen oxides emission specifications of §117.1005 or §117.1010 of this title, as applicable; and(3) in determining whether to approve alternative emission specifications, may take into consideration the ability of the plant where the unit is located to meet emission specifications through system-wide averaging at maximum capacity.(b) Any owner or operator affected by the executive director's decision to deny an alternative case specific emission specification may file a motion to overturn the executive director's decision. The requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) apply. Executive director approval does not necessarily constitute satisfaction of all federal requirements nor eliminate the need for approval by the United States Environmental Protection Agency in cases where specified criteria for determining equivalency have not been clearly identified in applicable sections of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources).</content><note type="source"><p>Source Note: The provisions of this §117.1025 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1035"><num value="117.1035">§117.1035</num><heading>Initial Demonstration of Compliance</heading><content>(a) The owner or operator of all units that are subject to the emission specifications of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources) shall test the units as follows. (1) The units must be tested for nitrogen oxides (NO X ), carbon monoxide (CO), and oxygen (O2) emissions. (2) Units that inject urea or ammonia into the exhaust stream for NOX control must be tested for ammonia emissions. (3) Testing must be performed in accordance with the schedules specified in §117.9100 of this title (relating to Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources). (b) The tests required by subsection (a) of this section must be used for determination of initial compliance with the emission specifications of this division. Test results must be reported in the units of the applicable emission specifications and averaging periods. If compliance testing is based on 40 Code of Federal Regulations Part 60, Appendix A reference methods, the report must contain the information specified in §117.8010 of this title (relating to Compliance Stack Test Reports). (c) Continuous emissions monitoring systems (CEMS) or predictive emissions monitoring systems (PEMS) required by §117.1040 of this title (relating to Continuous Demonstration of Compliance) must be installed and operational before testing under subsection (a) of this section. Verification of operational status must, at a minimum, include completion of the initial monitor certification and the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device. (d) Initial compliance with the emission specifications of this division for units operating with CEMS or PEMS in accordance with §117.1040 of this title must be demonstrated after monitor certification testing using the NOX CEMS or PEMS as follows. (1) To comply with the NOX emission specification in pounds per million British thermal units (lb/MMbtu) on a rolling 30-day average, NOX emissions from a unit are monitored for 30 successive unit operating days and the 30-day average emission rate is used to determine compliance with the NO X emission specification. The 30-day average emission rate is calculated as the average of all hourly emissions data recorded by the monitoring system during the 30-day test period. (2) To comply with the NOX emission specification in lb/MMBtu on a rolling 24-hour average, NO X emissions from a unit are monitored for 24 consecutive operating hours and the 24-hour average emission rate is used to determine compliance with the NOX emission specification. The 24-hour average emission rate is calculated as the average of all hourly emissions data recorded by the monitoring system during the 24-hour test period. Compliance with the NOX emission specification for fuel oil firing must be determined based on the first 24 consecutive operating hours a unit fires fuel oil. (3) For any electric generating facility (EGF) complying with §117.1020 of this title (relating to System Cap), a rolling 30-day average of total daily pounds of NOX emissions from the EGF must be monitored (or calculated in accordance with §117.1020(e) of this title) for 30 successive system operating days and the 30-day average emission rate is used to determine compliance with the NOX emission specification. The 30-day average emission rate is calculated as the average of all daily emissions data recorded by the monitoring and recording system during the 30-day test period. There must be no exceedances of the maximum daily cap during the 30-day test period. (4) To comply with the NOX emission specification in pounds per hour or parts per million by volume (ppmv) at 15% O2 dry basis, on a block one-hour average, any one-hour period while operating at the maximum rated capacity, or as near thereto as practicable, after CEMS or PEMS certification testing required in §117.1040 of this title is used to determine compliance with the NOX emission specification. (5) To comply with the CO emission specification in ppmv on a rolling 24-hour average, CO emissions from a unit are monitored for 24 consecutive hours and the rolling 24-hour average emission rate is used to determine compliance with the CO emission specification. The rolling 24-hour average emission rate is calculated as the average of all hourly emissions data recorded by the monitoring system during the 24-hour test period.</content><note type="source"><p>Source Note: The provisions of this §117.1035 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1040"><num value="117.1040">§117.1040</num><heading>Continuous Demonstration of Compliance</heading><content>(a) Nitrogen oxides (NOX ) monitoring. The owner or operator of each unit subject to the emission specifications of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources), shall install, calibrate, maintain, and operate a continuous emissions monitoring system (CEMS), predictive emissions monitoring system (PEMS), or other system specified in this section to measure NOX on an individual basis. Each NO X monitor (CEMS or PEMS) is subject to the relative accuracy test audit relative accuracy requirements of 40 Code of Federal Regulations (CFR) Part 75, Appendix B, Figure 2, except the concentration options (parts per million by volume (ppmv) and pounds per million British thermal units) do not apply. Each NOX monitor must meet either the relative accuracy percent requirement of 40 CFR Part 75, Appendix B, Figure 2, or an alternative relative accuracy requirement of ± 2.0 ppmv from the reference method mean value. (b) Carbon monoxide (CO) monitoring. The owner or operator shall monitor CO exhaust emissions from each unit subject to the emission specifications of this division using one or more of the methods specified in §117.8120 of this title (relating to Carbon Monoxide (CO) Monitoring). (c) CEMS requirements. The owner or operator of any CEMS used to meet a pollutant monitoring requirement of this section shall comply with the requirements of §117.8110(a) of this title (relating to Emission Monitoring System Requirements for Utility Electric Generation Sources). (d) Acid rain peaking units. The owner or operator of each peaking unit as defined in 40 CFR §72.2, may: (1) monitor operating parameters for each unit in accordance with 40 CFR Part 75, Appendix E, §1.1 or §1.2 and calculate NOX emission rates based on those procedures; or (2) use CEMS or PEMS in accordance with this section to monitor NOX emission rates. (e) Auxiliary steam boilers. The owner or operator of each auxiliary steam boiler as defined in §117.10 of this title (relating to Definitions) shall: (1) install, calibrate, maintain, and operate a CEMS in accordance with this section; or (2) comply with the appropriate (considering boiler maximum rated capacity and annual heat input) industrial boiler monitoring requirements of §117.140 of this title (relating to Continuous Demonstration of Compliance). (f) PEMS requirements. The owner or operator of any PEMS used to meet a pollutant monitoring requirement of this section shall comply with the following. The required PEMS and fuel flow meters must be used to demonstrate continuous compliance with the emission specifications of this division. (1) The PEMS must predict the pollutant emissions in the units of the applicable emission specifications of this division. (2) The PEMS must meet the requirements of §117.8110(b) of this title. (g) Stationary gas turbine monitoring for NO X reasonably available control technology (RACT). The owner or operator of each stationary gas turbine subject to the emission specifications of §117.1005 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)), instead of monitoring emissions in accordance with the monitoring requirements of 40 CFR Part 75, may comply with the following monitoring requirements: (1) for stationary gas turbines rated less than 30 megawatts (MW) or peaking gas turbines (as defined in §117.10 of this title) that use steam or water injection to comply with the emission specifications of §117.1005(g) of this title: (A) install, calibrate, maintain, and operate a CEMS or PEMS in compliance with this section; or (B) install, calibrate, maintain, and operate a continuous monitoring system to monitor and record the average hourly fuel and steam or water consumption. The system must be accurate to within ± 5.0%. The steam-to-fuel or water-to-fuel ratio monitoring data must be used for demonstrating continuous compliance with the applicable emission specification of §117.1005 of this title; and (2) for stationary gas turbines subject to the emission specifications of §117.1005(f) of this title, install, calibrate, maintain, and operate a CEMS or PEMS in compliance with this section. (h) Totalizing fuel flow meters. The owner or operator of units listed in this subsection shall install, calibrate, maintain, and operate totalizing fuel flow meters to individually and continuously measure the gas and liquid fuel usage. A computer that collects, sums, and stores electronic data from continuous fuel flow meters is an acceptable totalizer. In lieu of installing a totalizing fuel flow meter on a unit, an owner or operator may opt to assume fuel consumption at maximum design fuel flow rates during hours of the unit's operation. The units are: (1) any unit subject to the emission specifications of this division; (2) any stationary gas turbine with an MW rating greater than or equal to 1.0 MW operated more than 850 hours per year; and (3) any unit claimed exempt from the emission specifications of this division using the low annual capacity factor exemption of §117.1003(a)(2) of this title (relating to Exemptions). (i) Run time meters. The owner or operator of any stationary gas turbine using the exemption of §117.1003(a)(3) or (b) of this title shall record the operating time with an elapsed run time meter approved by the executive director. (j) Loss of exemption. The owner or operator of any unit claimed exempt from the emission specifications of this division using the low annual capacity factor exemptions of §117.1003(a)(2) or (3) of this title, shall notify the executive director within seven days if the applicable limit is exceeded. (1) If the limit is exceeded, the exemption from the emission specifications of this division is permanently withdrawn. (2) Within 90 days after loss of the exemption, the owner or operator shall submit a compliance plan detailing a plan to meet the applicable compliance limit as soon as possible, but no later than 24 months after exceeding the limit. The plan must include a schedule of increments of progress for the installation of the required control equipment. (3) The schedule is subject to the review and approval of the executive director. (k) Data used for compliance. After the initial demonstration of compliance required by §117.1035 of this title (relating to Initial Demonstration of Compliance), the methods required in this section must be used to determine compliance with the emission specifications of §117.1005 of this title or §117.1010(a) of this title (relating to Emission Specifications for Attainment Demonstration). Compliance with the emission specifications may also be determined at the discretion of the executive director using any commission compliance method. (l) Enforcement of NOX RACT limits. If compliance with §117.1005 of this title is selected, no unit subject to §117.1005 of this title may be operated at an emission rate higher than that allowed by the emission specifications of §117.1005 of this title. If compliance with §117.1015 of this title (relating to Alternative System-Wide Emission Specifications) is selected, no unit subject to §117.1015 of this title may be operated at an emission rate higher than that approved by the executive director in accordance with §117.1052(b) of this title (relating to Final Control Plan Procedures for Reasonably Available Control Technology).</content><note type="source"><p>Source Note: The provisions of this §117.1040 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1045"><num value="117.1045">§117.1045</num><heading>Notification, Recordkeeping, and Reporting Requirements</heading><content>(a) Startup and shutdown records. For units subject to the startup and/or shutdown provisions of §101.222 of this title (relating to Demonstrations), hourly records must be made of startup and/or shutdown events and maintained for a period of at least two years. Records must be available for inspection by the executive director, United States Environmental Protection Agency, and any local air pollution control agency having jurisdiction upon request. These records must include, but are not limited to: type of fuel burned; quantity of each type fuel burned; gross and net energy production in megawatt-hours (MW-hr); and the date, time, and duration of the event. (b) Notification. The owner or operator of a unit subject to the emission specifications of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources) shall submit notification to the appropriate regional office and any local air pollution control agency having jurisdiction as follows: (1) verbal notification of the date of any testing conducted under §117.1035 of this title (relating to Initial Demonstration of Compliance) at least 15 days prior to such date followed by written notification within 15 days after testing is completed; and (2) verbal notification of the date of any continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) performance evaluation conducted under §117.1040 of this title (relating to Continuous Demonstration of Compliance) at least 15 days prior to such date followed by written notification within 15 days after testing is completed. (c) Reporting of test results. The owner or operator of an affected unit shall furnish the Office of Compliance and Enforcement, the appropriate regional office, and any local air pollution control agency having jurisdiction a copy of any testing conducted under §117.1035 of this title or any CEMS or PEMS performance evaluation conducted under §117.1040 of this title: (1) within 60 days after completion of such testing or evaluation; and (2) not later than the appropriate compliance schedules specified in §117.9100 of this title (relating to Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources). (d) Semiannual reports. The owner or operator of a unit required to install a CEMS, PEMS, or steam-to-fuel or water-to-fuel ratio monitoring system under §117.1040 of this title shall report in writing to the executive director on a semiannual basis any exceedance of the applicable emission specifications in this division and the monitoring system performance. All reports must be postmarked or received by the 30th day following the end of each calendar semiannual period. Written reports must include the following information: (1) the magnitude of excess emissions computed in accordance with 40 Code of Federal Regulations §60.13(h), any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the unit operating time during the reporting period: (A) for stationary gas turbines using steam-to-fuel or water-to-fuel ratio monitoring to demonstrate compliance in accordance with §117.1040 of this title, excess emissions are computed as each one-hour period that the hourly steam-to-fuel or water-to-fuel ratio is less than the ratio determined to result in compliance during the initial demonstration of compliance test required by §117.1035 of this title; and (B) for utility boilers complying with §117.1020 of this title (relating to System Cap), excess emissions are each daily period that the total nitrogen oxides (NOX ) emissions exceed the rolling 30-day average or the maximum daily NOX cap; (2) specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the affected unit. The nature and cause of any malfunction (if known) and the corrective action taken or preventative measures adopted; (3) the date and time identifying each period that the continuous monitoring system was inoperative, except for zero and span checks and the nature of the system repairs or adjustments; (4) when no excess emissions have occurred or the continuous monitoring system has not been inoperative, repaired, or adjusted, such information must be stated in the report; and (5) if the total duration of excess emissions for the reporting period is less than 1.0% of the total unit operating time for the reporting period and the CEMS, PEMS, or steam-to-fuel or water-to-fuel ratio monitoring system downtime for the reporting period is less than 5.0% of the total unit operating time for the reporting period, only a summary report form (as outlined in the latest edition of the commission's Guidance for Preparation of Summary, Excess Emission, and Continuous Monitoring System Reports) must be submitted, unless otherwise requested by the executive director. If the total duration of excess emissions for the reporting period is greater than or equal to 1.0% of the total operating time for the reporting period or the CEMS or steam-to-fuel or water-to-fuel ratio monitoring system downtime for the reporting period is greater than or equal to 5.0% of the total operating time for the reporting period, a summary report and an excess emission report must both be submitted. (e) Recordkeeping. The owner or operator of a unit subject to the requirements of this division shall maintain records of the data specified in this subsection. Records must be kept for a period of at least five years and made available for inspection by the executive director, United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction upon request. Operating records for each unit must be recorded and maintained at a frequency equal to the applicable emission specification averaging period, or for units claimed exempt from the emission specifications based on low annual capacity factor, monthly. Records must include: (1) emission rates in units of the applicable standards; (2) gross energy production in MW-hr (not applicable to auxiliary steam boilers); (3) quantity and type of fuel burned; (4) the injection rate of reactant chemicals (if applicable); and (5) emission monitoring data, in accordance with §117.1040 of this title, including: (A) the date, time, and duration of any malfunction in the operation of the monitoring system, except for zero and span checks, if applicable, and a description of system repairs and adjustments undertaken during each period; (B) the results of initial certification testing, evaluations, calibrations, checks, adjustments, and maintenance of CEMS, PEMS, or operating parameter monitoring systems; and (C) actual emissions or operating parameter measurements, as applicable; (6) the results of performance testing, including initial demonstration of compliance testing conducted in accordance with §117.1035 of this title; and (7) records of hours of operation.</content><note type="source"><p>Source Note: The provisions of this §117.1045 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1052"><num value="117.1052">§117.1052</num><heading>Final Control Plan Procedures for Reasonably Available Control Technology</heading><content>(a) The owner or operator of units listed in §117.1000 of this title (relating to Applicability) at a major source of nitrogen oxides (NOX ) shall submit a final control report to show compliance with the requirements of §117.1005 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)). The report must include a list of all units listed in §117.1000 of this title, showing: (1) the NOX emission specification resulting from application of §117.1005 of this title for each non-exempt unit; (2) the section under which NOX compliance is being established for units specified in paragraph (1) of this subsection, either: (A) §117.1005 of this title; (B) §117.1015 of this title (relating to Alternative System-Wide Emission Specifications); (C) §117.1025 of this title (relating to Alternative Case Specific Specifications); or (D) §117.9800 of this title (relating to Use of Emission Credits for Compliance); (3) the method of NOX control for each unit; (4) the emissions measured by testing required in §117.1035 of this title (relating to Initial Demonstration of Compliance); (5) the submittal date, and whether sent to the Austin or the regional office (or both), of any compliance stack test report or relative accuracy test audit report required by §117.1035 of this title that is not being submitted concurrently with the final compliance report; and (6) the specific rule citation for any unit with a claimed exemption from the emission specifications of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources). (b) For sources complying with §117.1015 of this title, in addition to the requirements of subsection (a) of this section, the owner or operator shall: (1) assign to each affected unit the maximum NO X emission rate, expressed in units of pounds per million British thermal units heat input on: (A) a rolling 24-hour average and rolling 30-day average for gaseous fuel firing; and (B) a rolling 24-hour average for oil or coal firing; (2) submit a list to the executive director for approval of: (A) the maximum allowable NOX emission rates identified in paragraph (1) of this subsection; and (B) the maximum rated capacity for each unit; (3) submit calculations used to calculate the system-wide average in accordance with §117.1015(e) of this title; and (4) maintain a copy of the approved list of emission specifications for verification of continued compliance with the requirements of §117.1015 of this title. (c) The report must be submitted by the applicable date specified for final control plans in §117.9100 of this title (relating to Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources). The plan must be updated with any emission compliance measurements submitted for units using continuous emissions monitoring system or predictive emissions monitoring system and complying with an emission specification on a rolling 30-day average, according to the applicable schedule given in §117.9100 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.1052 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1054"><num value="117.1054">§117.1054</num><heading>Final Control Plan Procedures for Attainment Demonstration Emission Specifications</heading><content>(a) The owner or operator of utility boilers listed in §117.1000 of this title (relating to Applicability) at a major source of nitrogen oxides (NOX ) shall submit to the executive director a final control report to show compliance with the requirements of §117.1010 of this title (relating to Emission Specifications for Attainment Demonstration). The report must include: (1) the section under which NOX compliance is being established for the utility boilers within the electric generating system, either: (A) §117.1010 of this title; or (B) §117.1020 of this title (relating to System Cap); and as applicable, (C) §117.9800 of this title (relating to Use of Emission Credits for Compliance); (2) the methods of NOX control for each utility boiler; (3) the emissions measured by testing required in §117.1035 of this title (relating to Initial Demonstration of Compliance); (4) the submittal date, and whether sent to the Austin or the regional office (or both), of any compliance stack test report or relative accuracy test audit report required by §117.1035 of this title that is not being submitted concurrently with the final compliance report; and (5) the specific rule citation for any utility boiler with a claimed exemption from the emission specifications of §117.1010 of this title. (b) For sources complying with §117.1020 of this title, in addition to the requirements of subsection (a) of this section, the owner or operator shall submit: (1) the calculations used to calculate the 30-day average and maximum daily system cap allowable emission rates; (2) a list containing, for each unit in the cap: (A) the average daily heat input, Hi , specified in §117.1020(c)(1) of this title; (B) the maximum daily heat input, Hmi , specified in §117.1020(c)(2) of this title; (C) the method of monitoring emissions; and (D) the method of providing substitute emissions data when the NOX monitoring system is not providing valid data; and (3) an explanation of the basis of the values of H i and Hmi . (c) The report must be submitted by the applicable date specified for final control plans in §117.9100 of this title (relating to Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources). The plan must be updated with any emission compliance measurements submitted for units using continuous emissions monitoring system or predictive emissions monitoring system and complying with the system cap rolling 30-day average emission limit, according to the applicable schedule given in §117.9100 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.1054 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1056"><num value="117.1056">§117.1056</num><heading>Revision of Final Control Plan</heading><content>A revised final control plan may be submitted by the owner or operator, along with any required permit applications. Such a plan must adhere to the emission specification and the final compliance dates of this division (relating to Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources). For sources complying with §§117.1005, 117.1010, or 117.1015 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT); Emission Specifications for Attainment Demonstration; and Alternative System-Wide Emission Specifications), replacement new units may be included in the control plan. The revision of the final control plan is subject to the review and approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §117.1056 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1100"><num value="117.1100">§117.1100</num><heading>Applicability</heading><content>(a) This division applies to the following units used in an electric power generating system, as defined in §117.10 of this title (relating to Definitions), located in the Bexar County ozone nonattainment area:(1) utility boilers;(2) auxiliary steam boilers;(3) stationary gas turbines; and(4) duct burners used in turbine exhaust ducts.(b) This division is applicable for the life of each affected unit in an electric power generating system or until this division or sections of this title that are applicable to an affected unit are rescinded.</content><note type="source"><p>Source Note: The provisions of this §117.1100 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1103"><num value="117.1103">§117.1103</num><heading>Exemptions</heading><content>The following units are exempt from this division, except as specified in §117.1140 and 117.1145 of this title (relating to Demonstration of Compliance; and Notification, Recordkeeping, and Reporting Requirements):(1) utility boilers or auxiliary steam boilers with an annual heat input less than or equal to 220,000 million British thermal units per year, on a rolling 12-month basis;(2) stationary gas turbines that operate less than 850 hours per year, on a rolling 12-month basis; or(3) stationary gas turbines that are used solely to power other gas turbines or engines during startups.</content><note type="source"><p>Source Note: The provisions of this §117.1103 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1105"><num value="117.1105">§117.1105</num><heading>Emission Specifications for Reasonably Available Control Technology (RACT)</heading><content>(a) Emission Specifications. No person shall allow the discharge into the atmosphere nitrogen oxides (NOX ) emissions in excess of the following emission specifications, in accordance with the applicable schedule in §117.9110 of this title (relating to Compliance Schedule for Bexar County Ozone Nonattainment Area Utility Electric Generation Sources): (1) stationary gas turbines, including duct burners used in turbine exhaust ducts, 0.032 pound per million British thermal units (lb/MMBtu) heat input on a rolling 30-day average basis;(2) utility boilers or auxiliary steam boilers, while firing natural gas or a combination of natural gas and oil, 0.20 lb/MMBtu heat input on a rolling 30-day average basis;(3) utility boilers or auxiliary steam boilers controlled with selective catalytic reduction, while firing coal, 0.069 lb/MMBtu heat input on a rolling 30-day average basis;(4) utility boilers or auxiliary steam boilers not controlled with selective catalytic reduction, while firing coal, 0.20 lb/MMBtu heat input on a rolling 30-day average basis; and (5) utility boilers or auxiliary steam boilers, while firing oil only, 0.30 lb/MMBtu heat input on an hourly basis.(b) Compliance flexibility. An owner or operator may use any of the following alternative methods to comply with the NOX emission specifications of this section:(1) §117.1120 of this title (relating to System Cap); or(2) §117.9800 of this title (relating to Use of Emission Credits for Compliance).</content><note type="source"><p>Source Note: The provisions of this §117.1105 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1120"><num value="117.1120">§117.1120</num><heading>System Cap</heading><content>(a) An owner or operator of an electric generating facility (EGF), as defined in §117.10 of this title (relating to Definitions), may achieve compliance with the nitrogen oxides (NOX ) emission specifications in §117.1105 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) by achieving equivalent NOX emission reductions obtained by compliance with a system cap emission limitation in accordance with the requirements of this section.(b) Each EGF within an electric power generating system, as defined in §117.10 of this title, that started operation before January 1, 2025, and is subject to §117.1105 of this title, must be included in the system cap.(c) The system cap must be calculated using the following equation.Attached Graphic(d) Continuous compliance with the system cap must be demonstrated in accordance with the requirements in §117.1140 of this title (relating to Demonstration of Compliance).(e) The owner or operator shall maintain daily records indicating the NOX emissions and fuel usage from each EGF and summations of total NOX emissions and fuel usage for all EGFs under the system cap on a daily basis. Records must also be retained in accordance with §117.1145 of this title (relating to Notification, Recordkeeping, and Reporting Requirements).(f) The owner or operator shall report any exceedance of the system cap emission limit within three calendar days to the appropriate regional office. The owner or operator shall then follow up no later than 60 calendar days after the exceedance with a written report to the regional office that includes an analysis of the cause for the exceedance with appropriate data to demonstrate the amount of emissions in excess of the system cap and the necessary corrective actions taken by the company to assure future compliance. Additionally, the owner or operator shall submit semiannual reports for the monitoring systems in accordance with §117.1145 of this title.(g) The owner or operator shall demonstrate compliance with the system cap in accordance with the schedule specified in §117.9110 of this title (relating to Compliance Schedule for Bexar County Ozone Nonattainment Area Utility Electric Generation Sources).(h) An EGF that is permanently retired or decommissioned and rendered inoperable may be included in the system cap emission limit provided that the permanent shutdown occurred on or after January 1, 2025. (i) Emission reductions from shutdowns or curtailments that have been used for netting or offset purposes under the requirements of Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) may not be included in the in the calculation of the system cap in subsection (c) of the section. (j) For the purposes of determining compliance with the system cap, the contribution of each affected EGF that is operating during a startup, shutdown, or emissions event as defined in §101.1 of this title (relating to Definitions) must be calculated from the NOX emission rate measured by the NOX monitor, if the monitor is operating properly. If the NOX monitor is not operating properly, the substitute data procedures identified in §117.1140 of this title must be used. (k) Emission credits may be used in accordance with the requirements of §117.9800 of this title (relating to Use of Emission Credits for Compliance) to exceed the system cap.</content><note type="source"><p>Source Note: The provisions of this §117.1120 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1140"><num value="117.1140">§117.1140</num><heading>Demonstration of Compliance</heading><content>(a) Nitrogen oxides (NOX ) monitoring. The owner or operator of each unit subject to the emission specifications in §117.1105 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)), shall install, calibrate, maintain, and operate a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) to measure NOX on an individual basis. (1) Each CEMS or PEMS is subject to the relative accuracy test audit relative accuracy requirements of 40 Code of Federal Regulations (CFR) Part 75, Appendix B, Figure 2, except the concentration options (parts per million by volume (ppmv) and pound per million British thermal units (lb/MMBtu)) do not apply. Each CEMS or PEMS must meet either the relative accuracy percent requirement of 40 CFR Part 75, Appendix B, Figure 2, or an alternative relative accuracy requirement of ± 2.0 ppmv from the reference method mean value.(2) Each CEMS or PEMS is subject to the requirements of §117.8110 of this title (relating to Emission Monitoring System Requirements for Utility Electric Generation Sources).(3) Each PEMS must predict NOX emissions in the units of the applicable emission limitations of this division and PEMS and fuel flow meters must be used to demonstrate continuous compliance with the emission specifications of this division.(b) Acid rain peaking units. In lieu of the NOX monitoring requirements in subsection (a) of this section, the owner or operator of each peaking unit as defined in 40 CFR §72.2, may monitor operating parameters for each unit in accordance with 40 CFR Part 75, Appendix E, and calculate NOX emission rates based on those procedures. (c) Totalizing fuel flow meters. The owner or operator of each unit subject to the emission specifications in §117.1105 of this title and each unit using the exemption in §117.1103(1) of this title (relating to Exemptions) shall install, calibrate, maintain, and operate totalizing fuel flow meters to individually and continuously measure the gas and liquid fuel usage. A computer that collects, sums, and stores electronic data from continuous fuel flow meters is an acceptable totalizer. In lieu of installing a totalizing fuel flow meter on a unit, an owner or operator may opt to assume fuel consumption at maximum design fuel flow rates during hours of the unit's operation. (d) Run time meters. The owner or operator of a unit using the exemption of §117.1103(2) of this title shall record the operating time hours with an elapsed run time meter.(e) Loss of exemption. The owner or operator of any unit claimed exempt from the emission specifications of this division using the exemptions in §117.1103(1) or (2) of this title, shall notify the executive director within seven days if the applicable limit is exceeded.(1) If the limit is exceeded, the exemption from the emission specifications of this division is permanently withdrawn.(2) Within 90 days after loss of the exemption, the owner or operator shall submit a compliance plan detailing a plan to meet the applicable compliance limit as soon as possible, but no later than 24 months after exceeding the limit. The plan must include a schedule of increments of progress for the installation of the required control equipment.(3) The schedule is subject to the review and approval of the executive director.(f) Data used for compliance. The methods required in this section must be used to demonstrate compliance with the emission specifications of §117.1105 of this title and the system cap in §117.1120 of this title (relating to System Cap). For enforcement purposes, the executive director may also use other commission compliance methods to determine whether the unit is in compliance with applicable emission specifications. (1) For units complying with the NOX emission specifications of §117.1105 of this title in pounds per million British thermal units (lb/MMBtu) on a rolling 30-day average basis, the rolling 30-day average is calculated for each day that fuel was combusted in the unit, and is the total NOX emissions (in pounds) from the unit for the preceding 30 days that fuel was combusted in the unit, divided by the total heat input (in MMBtu) for the unit during the same 30-day period.(2) For any electric generating facility (EGF) complying with the system cap in §117.1120 of this title (relating to System Cap) in pounds per day on a rolling 30-day average basis, the rolling 30-day average is calculated for each day and is the average of the total pounds of NOX emissions per day from all EGFs included in the system cap for the preceding 30 days.(g) Data Substitution. The missing data procedures specified in 40 CFR Part 75, Subpart D (Missing Data Substitution Procedures) must be used to provide substitute emissions compliance data during periods when the NOX monitor is off-line except as follows.(1) A peaking unit, as defined in 40 CFR §72.2, subject to 40 CFR Part 75, Appendix E, may use the missing data procedures specified in 40 CFR Part 75, Appendix E, §2.5 (Missing Data Procedures). (2) A PEMS for units not subject to the requirements of 40 CFR Part 75 may use calculations in accordance with §117.8110(b) of this title (relating to Emission Monitoring System Requirements for Utility Electric Generation Sources).</content><note type="source"><p>Source Note: The provisions of this §117.1140 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1145"><num value="117.1145">§117.1145</num><heading>Notification, Recordkeeping, and Reporting Requirements</heading><content>(a) Notification. The owner or operator of an affected unit shall submit written notification to the appropriate regional office and any local air pollution control agency having jurisdiction of any continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) relative accuracy test audit (RATA) conducted under §117.1140 of this title (relating to Demonstration of Compliance) at least 15 days prior to such date.(b) Reporting of test results. The owner or operator of an affected unit shall furnish the Office of Compliance and Enforcement, the appropriate regional office, and any local air pollution control agency having jurisdiction a copy of the results of any CEMS or PEMS RATA conducted under §117.1140 of this title within 60 days after completion of such testing or evaluation.(c) Startup and shutdown records. For units subject to the startup and/or shutdown provisions of §101.222 of this title (relating to Demonstrations), hourly records must be made of startup and/or shutdown events and maintained for a period of at least two years. Records must be available for inspection by the executive director, United States Environmental Protection Agency, and any local air pollution control agency having jurisdiction upon request. These records must include, but are not limited to: type of fuel burned; quantity of each type fuel burned; gross and net energy production in megawatt-hours; and the date, time, and duration of the event.(d) Semiannual reports. The owner or operator of a unit required to install a CEMS or PEMS under §117.1140 of this title shall report in writing to the executive director on a semiannual basis any exceedance of the applicable emission limitations in this division and the monitoring system performance. All reports must be postmarked or received by the 30th day following the end of each calendar semiannual period (i.e., July 30 and January 30). Written reports must include the following information:(1) the magnitude of excess emissions computed in accordance with 40 Code of Federal Regulations §60.13(h), any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the unit operating time during the reporting period;(2) specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the affected unit, the nature and cause of any malfunction (if known) and the corrective action taken, or preventative measures adopted; (3) the date and time identifying each period when the continuous monitoring system was inoperative, except for zero and span checks and the nature of the system repairs or adjustments;(4) when no excess emissions have occurred or the continuous monitoring system has not been inoperative, repaired, or adjusted, such information must be stated in the report; and(5) if the total duration of excess emissions for the reporting period is less than 1.0% of the total unit operating time for the reporting period and the CEMS or PEMS monitoring system downtime for the reporting period is less than 5.0% of the total unit operating time for the reporting period, only a summary report form (as outlined in the latest edition of the commission's Guidance for Preparation of Summary, Excess Emission, and Continuous Monitoring System Reports) must be submitted, unless otherwise requested by the executive director. If the total duration of excess emissions for the reporting period is greater than or equal to 1.0% of the total unit operating time for the reporting period or the CEMS or PEMS downtime for the reporting period is greater than or equal to 5.0% of the total unit operating time for the reporting period, a summary report and an excess emission report must both be submitted.(e) Recordkeeping. The owner or operator of a unit subject to this division shall maintain records of the data specified in this subsection. Records must be kept for at least five years and must be made available upon request by authorized representatives of the executive director, United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction. (1) The owner or operator of a unit complying with the NOX emission specifications in §117.1105(a)(1) - (4) of this title shall maintain daily records indicating the NOX emissions in pounds; the quantity and type of each fuel burned; the heat input in million British thermal units (MMBtu); and the rolling 30-day average NOX emission rate in pounds per MMBtu.(2) The owner or operator of a unit complying with the NOX emission specification in §117.1105(a)(5) of this title shall maintain hourly records indicating the NOX emissions in lb; the quantity and type of each fuel burned; and the heat input in MMBtu. (3) The owner or operator complying with the NOX emission system cap in §117.1120 of this title shall maintain daily records for each EGF in the cap indicating the NOX emissions in pounds; the quantity and type of each fuel burned; and the heat input in MMBtu. In addition, the owner or operator shall maintain daily records indicating the total NOX emissions in pounds from all EGFs under the system cap and the rolling 30-day average NOX emissions rate (in pounds per day) for all EGFs under the system cap.(4) The owner or operator of a unit using the exemption in §117.1103(1) of this title (relating to Exemptions), shall maintain monthly records indicating the quantity and type of each fuel burned, the heat input in MMBtu; and the rolling 12-month average heat input in MMBtu. (5) The owner or operator of a unit the exemption in §117.1103(2) of this title, shall maintain monthly records indicating the operating hours and the rolling 12-month average operating hours.(6) The owner or operator shall maintain records of records of the results of testing, evaluations, calibrations, checks, adjustments, and maintenance of a CEMS or PEMS.</content><note type="source"><p>Source Note: The provisions of this §117.1145 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1152"><num value="117.1152">§117.1152</num><heading>Control Plan Procedures for Reasonably Available Control Technology (RACT)</heading><content>(a) The owner or operator of any unit subject to §117.1105 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) at a major source of nitrogen oxides (NOX ) shall submit a control plan report to demonstrate compliance with the requirements of §117.1105 of this title. The report must include:(1) the rule section used to demonstrate compliance, either §117.1105 of this title; §117.1120 of this title (relating to System Cap); or §117.9800 of this title (relating to Use of Emission Credits for Compliance);(2) the specific rule citation for any unit with a claimed exemption from the emission specification of §117.1105 of this title;(3) for each affected unit: the method of NOX control, the method of monitoring emissions, and the method of providing substitute emissions data when the NOX monitoring system is not providing valid data; and(4) for sources complying with §117.1120 of this title, detailed calculation of the system cap that includes all data relied on for each electric generating facility included in the system cap equation in §117.1120(c) of this title.(b) The report must be submitted to the Office of Compliance and Enforcement, the appropriate regional office, and the Office of Air by the applicable date specified for control plans in §117.9110 of this title (relating to Compliance Schedule for Bexar County Utility Electric Generation Sources). (c) For any unit that becomes subject to §117.1105 of this title after the applicable date specified for submission of control plans in §117.9110 of this title, the control plan must be submitted to the Office of Compliance and Enforcement, the appropriate regional office, and the Office of Air no later than 60 days after becoming subject to §117.1105 of this title. (d) If any of the information changes in a control plan report submitted in accordance with subsection (b) or (c) of this section, including functionally identical replacements, the control plan must be updated no later than 60 days after the change occurs. Written or electronic records of the updated control plan must be kept for a period of at least five years and must be made available upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §117.1152 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1200"><num value="117.1200">§117.1200</num><heading>Applicability</heading><content>(a) The provisions of this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources) apply to utility boilers, auxiliary steam boilers, stationary gas turbines, and duct burners in turbine exhaust ducts used in an electric power generating system, as defined in §117.10 of this title (relating to Definitions), that is located within the Houston-Galveston-Brazoria ozone nonattainment area and is owned or operated by:(1) a municipality or a Public Utility Commission of Texas (PUC) regulated utility, or any of their successors, regardless of whether the successor is a municipality or is regulated by the PUC; or(2) an electric cooperative, municipality, river authority, or public utility.(b) The provisions of this division are applicable for the life of each affected unit within an electric power generating system or until this division or sections of this title that are applicable to an affected unit are rescinded.</content><note type="source"><p>Source Note: The provisions of this §117.1200 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1203"><num value="117.1203">§117.1203</num><heading>Exemptions</heading><content>(a) Reasonably available control technology. Units exempted from the provisions of §§117.1205, 117.1215, and 117.1240 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT); Alternative System-Wide Emission Specifications; and Continuous Demonstration of Compliance), except as specified in §117.1240(i) - (k) of this title, include the following:(1) any new units placed into service after November 15, 1992; (2) any utility boiler or auxiliary steam boiler with an annual heat input less than or equal to 2.2(1011 ) British thermal units per year; or(3) stationary gas turbines and engines, that are:(A) used solely to power other engines or gas turbines during startups; or(B) demonstrated to operate less than 850 hours per year, based on a rolling 12-month average.(b) Emission specifications for attainment demonstration. Stationary gas turbines and engines that are used solely to power other engines or gas turbines during startups are exempt from the provisions of §§117.1210, 117.1220, and 117.1240 of this title (relating to Emission Specifications for Attainment Demonstration; System Cap; and Continuous Demonstration of Compliance), except as specified in §117.1240(j) of this title.(c) Emergency fuel oil firing.(1) The fuel oil firing emission specifications of §§117.1205(c), 117.1210(a)(1)(B), 117.1215(b), and 117.1220 of this title do not apply during an emergency operating condition declared by the Electric Reliability Council of Texas or the Southeastern Electric Reliability Council, or any other emergency operating condition that necessitates oil firing. All findings that emergency operating conditions exist are subject to the approval of the executive director. (2) The owner or operator of an affected unit shall give the executive director and any local air pollution control agency having jurisdiction verbal notification as soon as possible but no later than 48 hours after declaration of the emergency. Verbal notification must identify the anticipated date and time oil firing will begin, duration of the emergency period, affected oil-fired equipment, and quantity of oil to be fired in each unit, and must be followed by written notification containing this information no later than five days after declaration of the emergency.(3) The owner or operator of an affected unit shall give the executive director and any local air pollution control agency having jurisdiction final written notification as soon as possible but no later than two weeks after the termination of emergency fuel oil firing. Final written notification must identify the actual dates and times that oil firing began and ended, duration of the emergency period, affected oil-fired equipment, and quantity of oil fired in each unit.</content><note type="source"><p>Source Note: The provisions of this §117.1203 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1205"><num value="117.1205">§117.1205</num><heading>Emission Specifications for Reasonably Available Control Technology (RACT)</heading><content>(a) No person shall allow the discharge into the atmosphere from any utility boiler or auxiliary steam boiler, emissions of nitrogen oxides (NOX ) in excess of 0.26 pounds per million British thermal units (lb/MMBtu) heat input on a rolling 24-hour average and 0.20 lb/MMBtu heat input on a 30-day rolling average while firing natural gas or a combination of natural gas and waste oil.(b) No person shall allow the discharge into the atmosphere from any utility boiler, NOX emissions in excess of 0.38 lb/MMBtu heat input for tangentially-fired units on a rolling 24-hour averaging period or 0.43 lb/MMBtu heat input for wall-fired units on a rolling 24-hour averaging period while firing coal.(c) No person shall allow the discharge into the atmosphere from any utility boiler or auxiliary steam boiler, NO X emissions in excess of 0.30 lb/MMBtu heat input on a rolling 24-hour averaging period while firing fuel oil only.(d) No person shall allow the discharge into the atmosphere from any utility boiler or auxiliary steam boiler, NO X emissions in excess of the heat input weighted average of the applicable emission specifications specified in subsections (a) and (c) of this section on a rolling 24-hour averaging period while firing a mixture of natural gas and fuel oil, as follows:Attached Graphic(e) Each auxiliary steam boiler that is an affected facility as defined by New Source Performance Standards (NSPS) 40 Code of Federal Regulations Part 60, Subparts D, Db, or Dc is limited to the applicable NSPS NO X emission limit, unless the boiler is also subject to a more stringent permit emission limit, in which case the more stringent emission limit applies. Each auxiliary steam boiler subject to an emission specification under this subsection is not subject to the emission specifications of subsection (a), (c), or (d) of this section.(f) No person shall allow the discharge into the atmosphere from any stationary gas turbine with a megawatt (MW) rating greater than or equal to 30 MW and an annual electric output in megawatt-hours (MW-hr) of greater than or equal to the product of 2,500 hours and the MW rating of the unit, NOX emissions in excess of a block one-hour average of:(1) 42 parts per million by volume (ppmv) at 15% oxygen (O2), dry basis, while firing natural gas; and(2) 65 ppmv at 15% O2, dry basis, while firing fuel oil.(g) No person shall allow the discharge into the atmosphere from any stationary gas turbine used for peaking service with an annual electric output in MW-hr of less than the product of 2,500 hours and the MW rating of the unit NOX emissions in excess of a block one-hour average of:(1) 0.20 lb/MMBtu heat input while firing natural gas; and (2) 0.30 lb/MMBtu heat input while firing fuel oil.(h) No person shall allow the discharge into the atmosphere from any utility boiler or auxiliary steam boiler subject to the NO X emission specifications specified in subsections (a) - (e) of this section, carbon monoxide (CO) emissions in excess of 400 ppmv at 3.0% O2, dry (or alternatively, 0.30 lb/MMBtu heat input for gas-fired units, 0.31 lb/MMBtu heat input for oil-fired units, and 0.33 lb/MMBtu heat input for coal-fired units), based on:(1) a one-hour average for units not equipped with a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) for CO; or(2) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for CO.(i) No person shall allow the discharge into the atmosphere from any stationary gas turbine with a MW rating greater than or equal to 10 MW, CO emissions in excess of a block one-hour average of 132 ppmv at 15% O2, dry basis.(j) No person shall allow the discharge into the atmosphere from any unit subject to this section, ammonia emissions in excess of 20 ppmv based on a block one-hour averaging period.(k) For purposes of this subchapter, the following apply.(1) The lower of any permit NOX emission limit in effect on June 9, 1993, under a permit issued in accordance with Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) and the NOX emission specifications of subsections (a) - (g) of this section apply, except that gas-fired boilers operating under a permit issued after March 3, 1982, with a NOX emission limit of 0.12 lb/MMBtu heat input, are limited to that rate for the purposes of this subchapter.(2) For any unit placed into service after June 9, 1993, and prior to the final compliance date as specified in §117.9120 of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources) as functionally identical replacement for an existing unit or group of units subject to the provisions of this chapter, the higher of any permit NOX emission limit under a permit issued after June 9, 1993, in accordance with Chapter 116 of this title and the emission specifications of subsections (a) - (g) of this section apply. Any emission credits resulting from the operation of such replacement units are limited to the cumulative maximum rated capacity of the units replaced. The inclusion of such new units is an optional method for complying with the emission specifications of §117.1215 of this title (relating to Alternative System-Wide Emission Specifications). Compliance with this paragraph does not eliminate the requirement for new units to comply with Chapter 116 of this title.(l) This section no longer applies after the appropriate compliance date(s) for emission specifications for attainment demonstration given in §117.9120(2) of this title. For purposes of this subsection, this means that the reasonably available control technology (RACT) emission specifications of this section remain in effect until the emissions allocation for a unit under the Houston-Galveston-Brazoria mass emissions cap are equal to or less than the allocation that would be calculated using the RACT emission specifications of this section.</content><note type="source"><p>Source Note: The provisions of this §117.1205 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1210"><num value="117.1210">§117.1210</num><heading>Emission Specifications for Attainment Demonstration</heading><content>(a) Emission specifications for the Mass Emission Cap and Trade Program. The owner or operator of each utility boiler, auxiliary steam boiler, or stationary gas turbine shall ensure that emissions of nitrogen oxides (NOX ) do not exceed the lower of any applicable permit limit in a permit issued before January 2, 2001; any permit issued on or after January 2, 2001, that the owner or operator submitted an application determined to be administratively complete by the executive director before January 2, 2001; any limit in a permit by rule under which construction commenced by January 2, 2001; or the following rates, in pounds per million British thermal units (lb/MMBtu) heat input, on the basis of daily and 30-day averaging periods as specified in §117.1220 of this title (relating to System Cap), and as specified in the mass emissions cap and trade program of Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program): (1) utility boilers:(A) gas-fired, 0.030; and(B) coal-fired or oil-fired:(i) wall-fired, 0.050; and(ii) tangential-fired, 0.045;(2) auxiliary steam boilers, 0.030; and(3) stationary gas turbines (including duct burners used in turbine exhaust ducts), 0.032.(b) Related emissions. No person shall allow the discharge into the atmosphere from any unit subject to subsection (a) of this section: (1) carbon monoxide (CO) emissions in excess of 400 parts per million by volume (ppmv) at 3.0% oxygen (O2), dry (or alternatively, 0.30 lb/MMBtu heat input for gas-fired units, 0.31 lb/MMBtu heat input for oil-fired units, and 0.33 lb/MMBtu heat input for coal-fired units), based on:(A) a one-hour average for units not equipped with a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) for CO; or(B) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for CO; and(2) for units that inject urea or ammonia into the exhaust stream for NOX control, ammonia emissions in excess of 10 ppmv, at 3.0% O2, dry, for boilers and 15% O2, dry, for stationary gas turbines (including duct burners used in turbine exhaust ducts), based on:(A) a block one-hour averaging period for units not equipped with a CEMS or PEMS for ammonia; or(B) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for ammonia.(c) Compliance flexibility.(1) An owner or operator may petition the executive director for an alternative to the CO or ammonia specifications of this section in accordance with §117.1225 of this title (relating to Alternative Case Specific Specifications).(2) Section 117.1215 of this title (relating to Alternative System-Wide Emission Specifications) and §117.1225 of this title are not alternative methods of compliance with the NOX emission specifications of this section.(3) For units that meet the definition of electric generating facility (EGF), the owner or operator shall use both the methods specified in §117.1220 of this title and the mass emissions cap and trade program in Chapter 101, Subchapter H, Division 3 of this title to comply with the NOX emission specifications of this section. An owner or operator may use the alternative methods specified in §117.9800 of this title (relating to Use of Emission Credits for Compliance) for purposes of complying with §117.1220 of this title.(4) For units that do not meet the definition of EGF, the owner or operator shall use the mass emissions cap and trade program in Chapter 101, Subchapter H, Division 3 of this title to comply with the NO X emission specifications of this section.</content><note type="source"><p>Source Note: The provisions of this §117.1210 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1215"><num value="117.1215">§117.1215</num><heading>Alternative System-Wide Emission Specifications</heading><content>(a) An owner or operator of any gaseous- or coal-fired utility boiler or stationary gas turbine may achieve compliance with the nitrogen oxides (NOX ) emission specifications of §117.1205 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) by achieving compliance with a system-wide emission specification. Any owner or operator who elects to comply with system-wide emission specifications shall reduce emissions of NO X from affected units so that, if all such units were operated at their maximum rated capacity, the system-wide emission rate from all units in the system as defined in §117.10 of this title (relating to Definitions) would not exceed the system-wide emission specification as defined in §117.10 of this title.(1) The following units must comply with the individual emission specifications of §117.1205 of this title and must not be included in the system-wide emission specification:(A) gas turbines used for peaking service subject to the emission specifications of §117.1205(g) of this title; and(B) auxiliary steam boilers subject to the emission specifications of §117.1205(a), (c), (d), or (e) of this title.(2) Coal-fired utility boilers must have a separate system average under this section, limited to those units.(3) Oil-fired utility boilers must have a separate system average under this section, limited to those units. The NOX emission specification assigned to each oil-fired unit in the system must not exceed 0.5 pounds per million British thermal units (lb/MMBtu) based on a rolling 24-hour average.(b) The owner or operator shall establish enforceable emission limits for each affected unit in the system calculated in accordance with the maximum rated capacity averaging in this section as follows:(1) for each gas-fired unit in the system, in lb/MMBtu:(A) on a rolling 24-hour averaging period; and(B) on a rolling 30-day averaging period;(2) for each coal-fired unit in the system, in lb/MMBtu on a rolling 24-hour averaging period;(3) for stationary gas turbines, in the units of the appropriate emission specification of §117.1205 of this title; and(4) for each fuel oil-fired unit in the system, in lb/MMBtu on a rolling 24-hour averaging period.(c) An owner or operator of any gaseous and liquid fuel-fired utility boiler or gas turbine shall:(1) comply with the assigned maximum allowable emission rates for gas fuel while firing natural gas only;(2) comply with the assigned maximum allowable emission rate for liquid fuel while firing liquid fuel only; and(3) comply with a limit calculated as the actual heat input weighted sum of the assigned gas-firing, 24-hour average, allowable emission specification and the assigned liquid-firing allowable emission specification while operating on liquid and gaseous fuel concurrently.(d) Solely for purposes of calculating the system-wide emission specification, the allowable mass emission rate for each affected unit must be calculated from the emission specifications of §117.1205 of this title, as follows.(1) The NOX emissions rate (in pounds per hour) for each affected utility boiler is determined by the following equation.Attached Graphic(2) The NOX emissions rate (in pounds per hour) for each affected stationary gas turbine is determined by the following equations.Attached Graphic(e) This section no longer applies after the appropriate compliance date(s) for emission specifications for attainment demonstration given in §117.9120(2) of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources). For purposes of this subsection, this means that the alternative system-wide emission specifications of this section remain in effect until the emissions allocation for units under the Houston-Galveston-Brazoria mass emissions cap are equal to or less than the allocation that would be calculated using the alternative system-wide emission specifications of this section.</content><note type="source"><p>Source Note: The provisions of this §117.1215 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1220"><num value="117.1220">§117.1220</num><heading>System Cap</heading><content>(a) An owner or operator of an electric generating facility (EGF) shall comply with a daily and 30-day system cap nitrogen oxides (NOX ) emission limitation in accordance with the requirements of this section.(b) Each EGF within an electric power generating system, as defined in §117.10 of this title (relating to Definitions), that is subject to §117.1210(a) of this title (relating to Emission Specifications for Attainment Demonstration) must be included in the system cap.(c) The system cap must be calculated as follows.(1) A rolling 30-day average emission cap must be calculated using the following equation.Attached Graphic(2) A maximum daily cap must be calculated using the following equation.Attached Graphic(3) Each EGF in the system cap is subject to the emission limits of both paragraphs (1) and (2) of this subsection at all times.(d) The NOX emissions monitoring required by §117.1240 of this title (relating to Continuous Demonstration of Compliance) for each EGF in the system cap must be used to demonstrate continuous compliance with the system cap.(e) For each operating EGF, the owner or operator shall use one of the following methods to provide substitute emissions compliance data during periods when the NOX monitor is off-line:(1) if the NOX monitor is a continuous emissions monitoring system (CEMS):(A) subject to 40 Code of Federal Regulations (CFR) Part 75, use the missing data procedures specified in 40 CFR Part 75, Subpart D (Missing Data Substitution Procedures); or(B) subject to 40 CFR Part 75, Appendix E, use the missing data procedures specified in 40 CFR Part 75, Appendix E, §2.5 (Missing Data Procedures);(2) use 40 CFR Part 75, Appendix E monitoring in accordance with §117.1240(e) of this title;(3) if the NOX monitor is a predictive emissions monitoring system (PEMS):(A) use the methods specified in 40 CFR Part 75, Subpart D; or(B) use calculations in accordance with §117.8110(b) of this title (relating to Emission Monitoring System Requirements for Utility Electric Generation Sources); or(4) if the methods specified in paragraphs (1) - (3) of this subsection are not used, the owner or operator shall use the maximum block one-hour emission rate as measured by the 30-day testing.(f) The owner or operator shall maintain daily records indicating the NOX emissions and fuel usage from each EGF and summations of total NOX emissions and fuel usage for all EGFs under the system cap on a daily basis. Records must also be retained in accordance with §117.1245 of this title (relating to Notification, Recordkeeping, and Reporting Requirements).(g) The owner or operator shall report any exceedance of the system cap emission limit within 48 hours to the appropriate regional office. The owner or operator shall then follow up within 21 days of the exceedance with a written report to the regional office that includes an analysis of the cause for the exceedance with appropriate data to demonstrate the amount of emissions in excess of the applicable limit and the necessary corrective actions taken by the company to assure future compliance. Additionally, the owner or operator shall submit semiannual reports for the monitoring systems in accordance with §117.1245 of this title.(h) The owner or operator shall demonstrate initial compliance with the system cap in accordance with the schedule specified in §117.9120 of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources).(i) An EGF that is permanently retired or decommissioned and rendered inoperable may be included in the system cap emission limit, provided that the permanent shutdown occurred after January 1, 2000. The system cap emission limit is calculated in accordance with subsection (b) of this section.(j) Emission reductions from shutdowns or curtailments that have been used for netting or offset purposes under the requirements of Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) may not be included in the baseline for establishing the cap.(k) For the purposes of determining compliance with the system cap emission limit, the contribution of each affected EGF that is operating during a startup, shutdown, or emissions event as defined in §101.1 of this title (relating to Definitions) must be calculated from the NOX emission rate measured by the NOX monitor, if operating properly. If the NOX monitor is not operating properly, the substitute data procedures identified in subsection (e) of this section must be used. If neither the NO X monitor nor the substitute data procedure are operating properly, the owner or operator shall use the maximum daily rate measured during the initial demonstration of compliance, unless the owner or operator provides data demonstrating to the satisfaction of the executive director and the United States Environmental Protection Agency that actual emissions were less than maximum emissions during such periods.(l) An owner or operator of a source of NOX who is participating in the system cap under this section may exceed their system cap provided that the owner or operator is complying with the requirements of §117.9800 of this title (relating to Use of Emission Credits for Compliance) or Chapter 101, Subchapter H, Division 1 or 4 of this title (relating to Emission Credit Banking and Trading; and Discrete Emission Credit Banking and Trading).(m) In the event that a unit within an electric power generating system is sold or transferred, the unit must become subject to the transferee's system cap.</content><note type="source"><p>Source Note: The provisions of this §117.1220 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective April 19, 2012, 37 TexReg 2655.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1225"><num value="117.1225">§117.1225</num><heading>Alternative Case Specific Specifications</heading><content>(a) Where a person can demonstrate that an affected unit cannot attain the applicable requirements of §117.1205 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)), or the carbon monoxide (CO) or ammonia specifications of §117.1210(b) of this title (relating to Emission Specifications for Attainment Demonstration), the executive director may approve emission specifications different from §117.1205 of this title or the CO or ammonia specifications in §117.1210(b) of this title for that unit. The executive director:(1) shall consider on a case-by-case basis the technological and economic circumstances of the individual unit;(2) shall determine that such specifications are the result of the lowest emission limitation the unit is capable of meeting after the application of controls to meet the nitrogen oxides emission specifications of §117.1205 or §117.1210 of this title, as applicable; and(3) in determining whether to approve alternative emission specifications, may take into consideration the ability of the plant where the unit is located to meet emission specifications through system-wide averaging at maximum capacity.(b) Any owner or operator affected by the executive director's decision to deny an alternative case specific emission specification may file a motion to overturn the executive director's decision. The requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) apply. Executive director approval does not necessarily constitute satisfaction of all federal requirements nor eliminate the need for approval by the United States Environmental Protection Agency in cases where specified criteria for determining equivalency have not been clearly identified in applicable sections of this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources).</content><note type="source"><p>Source Note: The provisions of this §117.1225 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1235"><num value="117.1235">§117.1235</num><heading>Initial Demonstration of Compliance</heading><content>(a) The owner or operator of all units that are subject to this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources) shall test the units as follows. (1) The units must be tested for nitrogen oxides (NO X ), carbon monoxide (CO), and oxygen (O2) emissions.(2) Units that inject urea or ammonia into the exhaust stream for NOX control must be tested for ammonia emissions. (3) Testing must be performed in accordance with the schedules specified in §117.9120 of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources).(b) The tests required by subsection (a) of this section must be used for determination of initial compliance with the emission specifications of this division. Test results must be reported in the units of the applicable emission specifications and averaging periods. If compliance testing is based on 40 Code of Federal Regulations Part 60, Appendix A reference methods, the report must contain the information specified in §117.8010 of this title (relating to Compliance Stack Test Reports).(c) Continuous emissions monitoring systems (CEMS) or predictive emissions monitoring systems (PEMS) required by §117.1240 of this title (relating to Continuous Demonstration of Compliance) must be installed and operational before testing under subsection (a) of this section. Verification of operational status must, at a minimum, include completion of the initial monitor certification and the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device.(d) Initial compliance with the requirements of this division for units operating with CEMS or PEMS in accordance with §117.1240 of this title must be demonstrated after monitor certification testing using the NOX CEMS or PEMS as follows.(1) To comply with the NOX emission specification in pounds per million British thermal units (lb/MMBtu) on a rolling 30-day average, NOX emissions from a unit are monitored for 30 successive unit operating days and the 30-day average emission rate is used to determine compliance with the NO X emission specification. The 30-day average emission rate is calculated as the average of all hourly emissions data recorded by the monitoring system during the 30-day test period.(2) To comply with the NOX emission specification in lb/MMBtu on a rolling 24-hour average, NO X emissions from a unit are monitored for 24 consecutive operating hours and the 24-hour average emission rate is used to determine compliance with the NOX emission specification. The 24-hour average emission rate is calculated as the average of all hourly emissions data recorded by the monitoring system during the 24-hour test period. Compliance with the NOX emission specification for fuel oil firing must be determined based on the first 24 consecutive operating hours a unit fires fuel oil.(3) For any electric generating facility (EGF) complying with §117.1220 of this title (relating to System Cap), a rolling 30-day average of total daily pounds of NOX emissions from the EGF must be monitored (or calculated in accordance with §117.1220(e) of this title) for 30 successive system operating days and the 30-day average emission rate is used to determine compliance with the NOX emission specification. The 30-day average emission rate is calculated as the average of all daily emissions data recorded by the monitoring and recording system during the 30-day test period. There must be no exceedances of the maximum daily cap during the 30-day test period.(4) To comply with the NOX emission specification in pounds per hour or parts per million by volume (ppmv) at 15% O2 dry basis, on a block one-hour average, any one-hour period while operating at the maximum rated capacity, or as near thereto as practicable, after CEMS or PEMS certification testing required in §117.1240 of this title is used to determine compliance with the NOX emission specification.(5) To comply with the CO emission specification in ppmv on a rolling 24-hour average, CO emissions from a unit are monitored for 24 consecutive hours and the rolling 24-hour average emission rate is used to determine compliance with the CO emission specification. The rolling 24-hour average emission rate is calculated as the average of all hourly emissions data recorded by the monitoring system during the 24-hour test period.</content><note type="source"><p>Source Note: The provisions of this §117.1235 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1240"><num value="117.1240">§117.1240</num><heading>Continuous Demonstration of Compliance</heading><content>(a) Nitrogen oxides (NOX ) monitoring. The owner or operator of each unit subject to this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources), shall install, calibrate, maintain, and operate a continuous emissions monitoring system (CEMS), predictive emissions monitoring system (PEMS), or other system specified in this section to measure NOX on an individual basis. Each NOX monitor (CEMS or PEMS) is subject to the relative accuracy test audit relative accuracy requirements of 40 Code of Federal Regulations (CFR) Part 75, Appendix B, Figure 2, except the concentration options (parts per million by volume (ppmv) and pounds per million British thermal units) therein do not apply. Each NOX monitor must meet either the relative accuracy percent requirement of 40 CFR Part 75, Appendix B, Figure 2, or an alternative relative accuracy requirement of ± 2.0 ppmv from the reference method mean value.(b) Carbon monoxide (CO) monitoring. The owner or operator shall monitor CO exhaust emissions from each unit subject to this division using one or more of the methods in §117.8120 of this title (relating to Carbon Monoxide (CO) Monitoring).(c) Ammonia monitoring requirements. The owner or operator of units that are subject to the ammonia emission specification in §117.1210(b)(2) of this title (relating to Emission Specifications for Attainment Demonstration) shall comply with the ammonia monitoring requirements of §117.8130 of this title (relating to Ammonia Monitoring).(d) CEMS requirements.(1) For units subject to §117.1205 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)), any CEMS required by this section must comply with the requirements of §117.8110(a) of this title (relating to Emission Monitoring System Requirements for Utility Electric Generation Sources).(2) The owner or operator of any unit subject to §117.1210 of this title shall comply with the following:(A) any CEMS required by this section must comply with the requirements of §117.8110(a)(1) of this title;(B) all bypass stacks must be monitored in order to quantify emissions directed through the bypass stack;(C) one CEMS may be shared among units, provided:(i) the exhaust stream of each stack is analyzed separately; and(ii) the CEMS meets the certification requirements of §117.8110(a)(1) of this title for each stack while the CEMS is operating in the time-shared mode; and(D) exhaust streams of units that vent to a common stack do not need to be analyzed separately.(e) Acid rain peaking units. The owner or operator of each peaking unit as defined in 40 CFR §72.2, may:(1) monitor operating parameters for each unit in accordance with 40 CFR Part 75, Appendix E, §1.1 or §1.2 and calculate NOX emission rates based on those procedures; or(2) use CEMS or PEMS in accordance with this section to monitor NOX emission rates.(f) Auxiliary steam boilers. The owner or operator of each auxiliary steam boiler as defined in §117.10 of this title (relating to Definitions) shall:(1) install, calibrate, maintain, and operate a CEMS in accordance with this section; or(2) comply with the appropriate (considering boiler maximum rated capacity and annual heat input) industrial boiler monitoring requirements of §117.340 of this title (relating to Continuous Demonstration of Compliance). (g) PEMS requirements. The owner or operator of any PEMS used to meet a pollutant monitoring requirement of this section shall comply with the following. The required PEMS and fuel flow meters must be used to demonstrate continuous compliance with the requirements of this division.(1) The PEMS must predict the pollutant emissions in the units of the applicable emission limitations of this division.(2) The PEMS must meet the requirements of §117.8110(b) of this title.(h) Stationary gas turbine monitoring for NO X RACT. The owner or operator of each stationary gas turbine subject to the emission specifications of §117.1205 of this title, instead of monitoring emissions in accordance with the monitoring requirements of 40 CFR Part 75, may comply with the following monitoring requirements:(1) for stationary gas turbines rated less than 30 megawatts or peaking gas turbines (as defined in §117.10 of this title) that use steam or water injection to comply with the emission specifications of §117.1205(g) of this title:(A) install, calibrate, maintain and operate a CEMS or PEMS in compliance with this section; or(B) install, calibrate, maintain, and operate a continuous monitoring system to monitor and record the average hourly fuel and steam or water consumption. The system must be accurate to within ± 5.0%. The steam-to-fuel or water-to-fuel ratio monitoring data must be used for demonstrating continuous compliance with the applicable emission specification of §117.1205 of this title; and(2) for stationary gas turbines subject to the emission specifications of §117.1205(f) of this title, install, calibrate, maintain and operate a CEMS or PEMS in compliance with this section.(i) Totalizing fuel flow meters. The owner or operator of units listed in this subsection shall install, calibrate, maintain, and operate totalizing fuel flow meters to individually and continuously measure the gas and liquid fuel usage. A computer that collects, sums, and stores electronic data from continuous fuel flow meters is an acceptable totalizer. In lieu of installing a totalizing fuel flow meter on a unit, an owner or operator may opt to assume fuel consumption at maximum design fuel flow rates during hours of the unit's operation. The units are:(1) for units subject to §117.1205 of this title:(A) any unit subject to the emission specifications of this division;(B) any stationary gas turbine with an MW rating greater than or equal to 1.0 MW operated more than 850 hours per year; and(C) any unit claimed exempt from the emission specifications of this division using the low annual capacity factor exemption of §117.1203(a)(2) of this title (relating to Exemptions); and(2) for units subject to §117.1210 of this title:(A) utility boilers;(B) auxiliary steam boilers; and(C) stationary gas turbines.(j) Run time meters. The owner or operator of any stationary gas turbine using the exemption of §117.1203(a)(3) or (b) of this title shall record the operating time with an elapsed run time meter approved by the executive director.(k) Loss of exemption. The owner or operator of any unit claimed exempt from the emission specifications of this division using the low annual capacity factor exemptions of §117.1203(a)(2) or (3) of this title, shall notify the executive director within seven days if the applicable limit is exceeded.(1) If the limit is exceeded, the exemption from the emission specifications of this division is permanently withdrawn.(2) Within 90 days after loss of the exemption, the owner or operator shall submit a compliance plan detailing a plan to meet the applicable compliance limit as soon as possible, but no later than 24 months after exceeding the limit. The plan must include a schedule of increments of progress for the installation of the required control equipment.(3) The schedule is subject to the review and approval of the executive director.(l) Data used for compliance.(1) After the initial demonstration of compliance required by §117.1235 of this title (relating to Initial Demonstration of Compliance), the methods required in this section must be used to determine compliance with the emission specifications of §117.1205 of this title. Compliance with the emission specification may also be determined at the discretion of the executive director using any commission compliance method.(2) For units subject to §117.1210(a) of this title, the methods required in this section must be used in conjunction with the requirements of Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program) to determine compliance. For enforcement purposes, the executive director may also use other commission compliance methods to determine whether the source is in compliance with applicable requirements. (m) Enforcement of NOX RACT limits. If compliance with §117.1205 of this title is selected, no unit subject to §117.1205 of this title may be operated at an emission rate higher than that allowed by the emission specifications of §117.1205 of this title. If compliance with §117.1215 of this title (relating to Alternative System-Wide Emission Specifications) is selected, no unit subject to §117.1215 of this title may be operated at an emission rate higher than that approved by the executive director in accordance with §117.1252(b) of this title (relating to Final Control Plan Procedures for Reasonably Available Control Technology).(n) Testing requirements. The owner or operator of units subject to §117.1210(a) of this title must test the units as specified in §117.1235 of this title in accordance with the schedule specified in §117.9120(2) of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources).(o) Emission allowances. The owner or operator of units subject to §117.1210(a) of this title shall comply with the following.(1) The NOX testing and monitoring data of subsections (a), (i), and (n) of this section, together with the level of activity, as defined in §101.350 of this title (relating to Definitions), must be used to establish the emission factor for calculating actual emissions for compliance with Chapter 101, Subchapter H, Division 3 of this title.(2) For units not operating with a CEMS or PEMS, the following apply.(A) Retesting as specified in subsection (n) of this section is required within 60 days after any modification that could reasonably be expected to increase the NOX emission rate.(B) Retesting as specified in subsection (n) of this section may be conducted at the discretion of the owner or operator after any modification that could reasonably be expected to decrease the NO X emission rate, including, but not limited to, installation of post-combustion controls, low-NOX burners, low excess air operation, staged combustion (for example, overfire air), flue gas recirculation, and fuel-lean and conventional (fuel-rich) reburn.(C) The NOX emission rate determined by the retesting must establish a new emission factor to be used to calculate actual emissions from the date of the retesting forward. Until the date of the retesting, the previously determined emission factor must be used to calculate actual emissions for compliance with Chapter 101, Subchapter H, Division 3 of this title.(D) All test reports must be submitted to the executive director for review and approval within 60 days after completion of the testing.(3) The emission factor in paragraph (1) or (2) of this subsection is multiplied by the unit's level of activity to determine the unit's actual emissions for compliance with Chapter 101, Subchapter H, Division 3 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.1240 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1245"><num value="117.1245">§117.1245</num><heading>Notification, Recordkeeping, and Reporting Requirements</heading><content>(a) Startup and shutdown records. For units subject to the startup and/or shutdown provisions of §101.222 of this title (relating to Demonstrations), hourly records must be made of startup and/or shutdown events and maintained for a period of at least two years. Records must be available for inspection by the executive director, United States Environmental Protection Agency, and any local air pollution control agency having jurisdiction upon request. These records must include, but are not limited to: type of fuel burned; quantity of each type fuel burned; gross and net energy production in megawatt-hours (MW-hr); and the date, time, and duration of the event. (b) Notification. The owner or operator of a unit subject to the emission specifications of this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources) shall submit notification to the appropriate regional office and any local air pollution control agency having jurisdiction as follows:(1) verbal notification of the date of any testing conducted under §117.1235 of this title (relating to Initial Demonstration of Compliance) at least 15 days prior to such date followed by written notification within 15 days after testing is completed; and(2) verbal notification of the date of any continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) performance evaluation conducted under §117.1240 of this title (relating to Continuous Demonstration of Compliance) at least 15 days prior to such date followed by written notification within 15 days after testing is completed. (c) Reporting of test results. The owner or operator of an affected unit shall furnish the Office of Compliance and Enforcement, the appropriate regional office, and any local air pollution control agency having jurisdiction a copy of any testing conducted under §117.1235 of this title or any CEMS or PEMS performance evaluation conducted under §117.1240 of this title:(1) within 60 days after completion of such testing or evaluation; and(2) not later than the appropriate compliance schedules specified in §117.9120 of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources).(d) Semiannual reports. The owner or operator of a unit required to install a CEMS, PEMS, or steam-to-fuel or water-to-fuel ratio monitoring system under §117.1240 of this title shall report in writing to the executive director on a semiannual basis any exceedance of the applicable emission limitations in this division and the monitoring system performance. All reports must be postmarked or received by the 30th day following the end of each calendar semiannual period. Written reports must include the following information: (1) the magnitude of excess emissions computed in accordance with 40 Code of Federal Regulations (CFR) §60.13(h), any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the unit operating time during the reporting period: (A) for stationary gas turbines using steam-to-fuel or water-to-fuel ratio monitoring to demonstrate compliance in accordance with §117.1240 of this title, excess emissions are computed as each one-hour period that the hourly steam-to-fuel or water-to-fuel ratio is less than the ratio determined to result in compliance during the initial demonstration of compliance test required by §117.1235 of this title; and(B) for utility boilers complying with §117.1220 of this title (relating to System Cap), excess emissions are each daily period that the total nitrogen oxides (NOX ) emissions exceed the rolling 30-day average or the maximum daily NOX cap;(2) specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the affected unit. The nature and cause of any malfunction (if known) and the corrective action taken or preventative measures adopted;(3) the date and time identifying each period that the continuous monitoring system was inoperative, except for zero and span checks and the nature of the system repairs or adjustments;(4) when no excess emissions have occurred or the continuous monitoring system has not been inoperative, repaired, or adjusted, such information must be stated in the report; and(5) if the total duration of excess emissions for the reporting period is less than 1.0% of the total unit operating time for the reporting period and the CEMS, PEMS, or steam-to-fuel or water-to-fuel ratio monitoring system downtime for the reporting period is less than 5.0% of the total unit operating time for the reporting period, only a summary report form (as outlined in the latest edition of the commission's Guidance for Preparation of Summary, Excess Emission, and Continuous Monitoring System Reports) must be submitted, unless otherwise requested by the executive director. If the total duration of excess emissions for the reporting period is greater than or equal to 1.0% of the total operating time for the reporting period or the CEMS or steam-to-fuel or water-to-fuel ratio monitoring system downtime for the reporting period is greater than or equal to 5.0% of the total operating time for the reporting period, a summary report and an excess emission report must both be submitted.(e) Recordkeeping. The owner or operator of a unit subject to the requirements of this division shall maintain records of the data specified in this subsection. Records must be kept for a period of at least five years and made available for inspection by the executive director, United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction upon request. Operating records for each unit must be recorded and maintained at a frequency equal to the applicable emission specification averaging period, or for units claimed exempt from the emission specifications based on low annual capacity factor, monthly. Records must include:(1) emission rates in units of the applicable standards;(2) gross energy production in MW-hr (not applicable to auxiliary steam boilers);(3) quantity and type of fuel burned;(4) the injection rate of reactant chemicals (if applicable); and(5) emission monitoring data, in accordance with §117.1240 of this title, including:(A) the date, time, and duration of any malfunction in the operation of the monitoring system, except for zero and span checks, if applicable, and a description of system repairs and adjustments undertaken during each period;(B) the results of initial certification testing, evaluations, calibrations, checks, adjustments, and maintenance of CEMS, PEMS, or operating parameter monitoring systems; and(C) actual emissions or operating parameter measurements, as applicable;(6) the results of performance testing, including initial demonstration of compliance testing conducted in accordance with §117.1235 of this title;(7) records of hours of operation; and(8) for units subject to the ammonia monitoring requirements of §117.1240(c) of this title, records that are sufficient to demonstrate compliance with the requirements of §117.8130 of this title (relating to Ammonia Monitoring). For the sorbent or stain tube option, these records must include the ammonia injection rate and NOX stack emissions measured during each sorbent or stain tube test.</content><note type="source"><p>Source Note: The provisions of this §117.1245 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1252"><num value="117.1252">§117.1252</num><heading>Final Control Plan Procedures for Reasonably Available Control Technology</heading><content>(a) The owner or operator of units listed in §117.1200 of this title (relating to Applicability) at a major source of nitrogen oxides (NOX ) shall submit a final control report to show compliance with the requirements of §117.1205 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)). The report must include a list of all units listed in §117.1200 of this title, showing:(1) the NOX emission specification resulting from application of §117.1205 of this title for each non-exempt unit;(2) the section under which NOX compliance is being established for units specified in paragraph (1) of this subsection, either:(A) §117.1205 of this title;(B) §117.1215 of this title (relating to Alternative System-Wide Emission Specifications);(C) §117.1225 of this title (relating to Alternative Case Specific Specifications); or(D) §117.9800 of this title (relating to Use of Emission Credits for Compliance);(3) the method of NOX control for each unit;(4) the emissions measured by testing required in §117.1235 of this title (relating to Initial Demonstration of Compliance);(5) the submittal date, and whether sent to the Austin or the regional office (or both), of any compliance stack test report or relative accuracy test audit report required by §117.1235 of this title that is not being submitted concurrently with the final compliance report; and(6) the specific rule citation for any unit with a claimed exemption from the emission specifications of this division.(b) For sources complying with §117.1215 of this title, in addition to the requirements of subsection (a) of this section, the owner or operator shall:(1) assign to each affected unit the maximum NO X emission rate, expressed in units of pounds per million British thermal units heat input on:(A) a rolling 24-hour average and rolling 30-day average for gaseous fuel firing; and(B) a rolling 24-hour average for oil or coal firing;(2) submit a list to the executive director for approval of: (A) the maximum allowable NOX emission rates identified in paragraph (1) of this subsection; and(B) the maximum rated capacity for each unit;(3) submit calculations used to calculate the system-wide average in accordance with §117.1215(e) of this title; and(4) maintain a copy of the approved list of emission limits for verification of continued compliance with the requirements of §117.1215 of this title.(c) The report must be submitted by the applicable date specified for final control plans in §117.9120 of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources). The plan must be updated with any emission compliance measurements submitted for units using continuous emissions monitoring system or predictive emissions monitoring system and complying with an emission limit on a rolling 30-day average, according to the applicable schedule given in §117.9120 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.1252 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1254"><num value="117.1254">§117.1254</num><heading>Final Control Plan Procedures for Attainment Demonstration Emission Specifications</heading><content>(a) The owner or operator of utility boilers listed in §117.1200 of this title (relating to Applicability) at a major source of nitrogen oxides (NOX ) shall submit to the executive director a final control report to show compliance with the requirements of §117.1210 of this title (relating to Emission Specifications for Attainment Demonstration). The report must include:(1) the section under which NOX compliance is being established for the utility boilers within the electric generating system, either:(A) Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program); and(B) §117.1220 of this title (relating to System Cap); and as applicable,(C) §117.9800 of this title (relating to Use of Emission Credits for Compliance).(2) the methods of NOX control for each utility boiler;(3) the emissions measured by testing required in §117.1235 of this title (relating to Initial Demonstration of Compliance);(4) the submittal date, and whether sent to the Austin or the regional office (or both), of any compliance stack test report or relative accuracy test audit report required by §117.1235 of this title that is not being submitted concurrently with the final compliance report; and(5) the specific rule citation for any utility boiler with a claimed exemption from the emission specifications of §117.1210 of this title.(b) For sources complying with §117.1220 of this title, in addition to the requirements of subsection (a) of this section, the owner or operator shall submit:(1) the calculations used to calculate the 30-day average and maximum daily system cap allowable emission rates;(2) a list containing, for each unit in the cap:(A) the average daily heat input, Hi , specified in §117.1220(c)(1) of this title;(B) the maximum daily heat input, Hmi , specified in §117.1220(c)(2) of this title;(C) the method of monitoring emissions; and(D) the method of providing substitute emissions data when the NOX monitoring system is not providing valid data; and(3) an explanation of the basis of the values of H i and Hmi .(c) The report must be submitted by the applicable date specified for final control plans in §117.9120 of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources). The plan must be updated with any emission compliance measurements submitted for units using continuous emissions monitoring system or predictive emissions monitoring system and complying with the system cap rolling 30-day average emission limit, according to the applicable schedule given in §117.9120 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.1254 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1256"><num value="117.1256">§117.1256</num><heading>Revision of Final Control Plan</heading><content>A revised final control plan may be submitted by the owner or operator, along with any required permit applications. Such a plan must adhere to the requirements and the final compliance dates of this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources). For sources complying with §§117.1205, 117.1210, or 117.1215 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT); Emission Specifications for Attainment Demonstration; and Alternative System-Wide Emission Specifications), replacement new units may be included in the control plan. The revision of the final control plan is subject to the review and approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §117.1256 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1300"><num value="117.1300">§117.1300</num><heading>Applicability</heading><content>(a) The provisions of this division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources) apply to utility boilers, auxiliary steam boilers, stationary gas turbines, and duct burners used in turbine exhaust ducts used in an electric power generating system, as defined in §117.10 of this title (relating to Definitions) and that is located within the Dallas-Fort Worth eight-hour ozone nonattainment area and is owned or operated by:(1) a municipality or a Public Utility Commission of Texas (PUC) regulated utility, or any of their successors, regardless of whether the successor is a municipality or is regulated by the PUC; or(2) an electric cooperative, municipality, river authority, or public utility.(b) The provisions of this division are applicable for the life of each affected unit within an electric power generating system or until this division or sections of this title that are applicable to an affected unit are rescinded.</content><note type="source"><p>Source Note: The provisions of this §117.1300 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1303"><num value="117.1303">§117.1303</num><heading>Exemptions</heading><content>(a) Emission specifications for attainment demonstrations. Units exempt from the provisions of §117.1310 and §117.1340 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration; and Continuous Demonstration of Compliance), except as specified in §117.1340(i) or (j) of this title, include the following:(1) any auxiliary steam boiler with an annual heat input less than or equal to 2.2(1011 ) British thermal units per year; or(2) stationary gas turbines and engines that are:(A) used solely to power other engines or gas turbines during startups; or(B) demonstrated to operate less than 850 hours per year, based on a rolling 12-month basis.(b) Emergency fuel oil firing.(1) The emissions specifications of §117.1310 of this title do not apply during an emergency operating condition declared by the Electric Reliability Council of Texas, or any other emergency operating condition that necessitates oil firing. All findings that emergency operating conditions exist are subject to the approval of the executive director.(2) The owner or operator of an affected unit shall give the executive director and any local air pollution control agency having jurisdiction verbal notification as soon as possible but no later than 48 hours after declaration of the emergency. Verbal notification must identify the anticipated date and time oil firing will begin, duration of the emergency period, affected oil-fired equipment, and quantity of oil to be fired in each unit, and must be followed by written notification containing this information no later than five days after declaration of the emergency.(3) The owner or operator of an affected unit shall give the executive director and any local air pollution control agency having jurisdiction final written notification as soon as possible but no later than two weeks after the termination of emergency fuel oil firing. Final written notification must identify the actual dates and times that oil firing began and ended, duration of the emergency period, affected oil-fired equipment, and quantity of oil fired in each unit.</content><note type="source"><p>Source Note: The provisions of this §117.1303 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1310"><num value="117.1310">§117.1310</num><heading>Emission Specifications for Eight-Hour Attainment Demonstration</heading><content>(a) Nitrogen oxides (NOX ) emission specifications. The owner or operator of any utility boiler, auxiliary steam boiler, or stationary gas turbine subject to this division shall not allow the discharge into the atmosphere, emissions of NOX in excess of the following:(1) utility boilers:(A) 0.06 pounds per million British thermal units (lb/MMBtu) heat input from utility boilers that are part of a small utility system, as defined in §117.10 of this title (relating to Definitions):(i) on a rolling 24-hour average basis during the months of March through October of each calendar year; and(ii) on a rolling 30-day average basis during the months of November, December, January, and February of each calendar year;(B) 0.033 lb/MMBtu heat input from utility boilers that are part of a large utility system, as defined in §117.10 of this title: (i) on a rolling 24-hour average basis during the months of March through October of each calendar year; and(ii) on a rolling 30-day average basis during the months of November, December, January, and February of each calendar year;(C) 0.50 pounds per megawatt-hour output on an annual average basis; or(D) 0.033 lb/MMBtu heat input on a system-wide heat input weighted average basis for utility boilers that are part of a large utility system, as defined in §117.10 of this title:(i) on a rolling 168-hour average basis for each hour during which fuel was combusted in any unit in the system; and(ii) determined according to the following equation:Attached Graphic(2) auxiliary steam boilers:(A) 0.26 lb/MMBtu heat input on a rolling 24-hour average and 0.20 lb/MMBtu heat input on a 30-day rolling average while firing natural gas or a combination of natural gas and waste oil;(B) 0.30 lb/MMBtu heat input on a rolling 24-hour averaging period while firing fuel oil only;(C) the heat input weighted average of the applicable emission specifications specified in subparagraphs (A) and (B) of this paragraph on a rolling 24-hour averaging period while firing a mixture of natural gas and fuel oil, as follows:Attached Graphic(D) for each auxiliary steam boiler that is an affected facility as defined by New Source Performance Standards (NSPS) 40 Code of Federal Regulations Part 60, Subparts D, Db, or Dc, the applicable NSPS NOX emission limit, unless the boiler is also subject to a more stringent permit emission limit, in which case the more stringent emission limit applies. Each auxiliary steam boiler subject to an emission specification under this subparagraph is not subject to the emission specifications of subparagraphs (A), (B), or (C) of this paragraph.(3) stationary gas turbines:(A) with a megawatt (MW) rating greater than or equal to 30 MW and an annual electric output in megawatt-hr (MW-hr) of greater than or equal to the product of 2,500 hours and the MW rating of the unit, NOX emissions in excess of a block one-hour average of: (i) 42 parts per million by volume (ppmv) at 15% oxygen (O2), dry basis, while firing natural gas; and(ii) 65 ppmv at 15% O2, dry basis, while firing fuel oil; and(B) used for peaking service with an annual electric output in MW-hr of less than the product of 2,500 hours and the MW rating of the unit, NOX emissions in excess of a block one-hour average of:(i) 0.20 lb/MMBtu heat input while firing natural gas; and (ii) 0.30 lb/MMBtu heat input while firing fuel oil.(b) Related emissions. The owner or operator of any unit subject to the emission specifications of subsection (a) of this section shall not allow emissions in excess of the following, except as provided in §117.1325 of this title (relating to Alternative Case Specific Specifications):(1) for utility boilers or auxiliary steam boilers, carbon monoxide (CO) emissions of 400 ppmv at 3.0% O2, dry (or alternatively, 0.30 lb/MMBtu heat input for gas-fired units and 0.31 lb/MMBtu heat input for oil-fired units), based on:(A) a block one-hour averaging period for units not equipped with a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) for CO; and(B) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for CO;(2) for any stationary gas turbine with a MW rating greater than or equal to 10 MW, CO emissions in excess of a block one-hour average of 132 ppmv at 15% O2, dry basis; and(3) for units that inject urea or ammonia into the exhaust stream for NOX control, ammonia emissions of 10 ppmv, at 3.0% O2, dry, for utility boilers or auxiliary steam boilers and 15% O2, dry, for stationary gas turbines (including duct burners used in turbine exhaust ducts), based on:(A) a block one-hour averaging period for units not equipped with a CEMS or PEMS for ammonia; and(B) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for ammonia.(c) Compliance flexibility.(1) An owner or operator may use §117.9800 of this title (relating to Use of Emission Credits for Compliance) to comply with the NOX emission specifications of this section.(2) Section 117.1325 of this title is not an applicable method of compliance with the NOX emission specifications of this section.(3) An owner or operator may petition the executive director for an alternative to the CO or ammonia specifications of this section in accordance with §117.1325 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.1310 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1325"><num value="117.1325">§117.1325</num><heading>Alternative Case Specific Specifications</heading><content>(a) Where a person can demonstrate that an affected unit cannot attain the applicable requirements of the carbon monoxide (CO) or ammonia emission specifications of §117.1310(b) of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration), the executive director may approve emission specifications different from the CO or ammonia specifications in §117.1310(b) of this title for that unit. The executive director:(1) shall consider on a case-by-case basis the technological and economic circumstances of the individual unit;(2) shall determine that such specifications are the result of the lowest emission limitation the unit is capable of meeting after the application of controls to meet the nitrogen oxides emission specifications of §117.1310 of this title, as applicable; and(3) in determining whether to approve alternative emission specifications, may take into consideration the ability of the plant where the unit is located to meet emission specifications through system-wide averaging at maximum capacity.(b) Any owner or operator affected by the executive director's decision to deny an alternative case specific emission specification may file a motion to overturn the executive director's decision. The requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) apply. Executive director approval does not necessarily constitute satisfaction of all federal requirements nor eliminate the need for approval by the United States Environmental Protection Agency in cases where specified criteria for determining equivalency have not been clearly identified in applicable sections of this division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources).</content><note type="source"><p>Source Note: The provisions of this §117.1325 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1335"><num value="117.1335">§117.1335</num><heading>Initial Demonstration of Compliance</heading><content>(a) The owner or operator of all units subject to the emission specifications of this division shall test the units as follows. (1) The units must be tested for nitrogen oxides (NOX ), carbon monoxide (CO), and oxygen (O2) emissions.(2) Units that inject urea or ammonia into the exhaust stream for NOX control must be tested for ammonia emissions. (3) Testing must be performed in accordance with the schedules specified in §117.9130 of this title (relating to Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources).(b) The tests required by subsection (a) of this section must be used for determination of initial compliance with the emission specifications of this division. Test results must be reported in the units of the applicable emission specifications and averaging periods. If compliance testing is based on 40 Code of Federal Regulations Part 60, Appendix A reference methods, the report must contain the information specified in §117.8010 of this title (relating to Compliance Stack Test Reports).(c) Continuous emissions monitoring systems (CEMS) or predictive emissions monitoring systems (PEMS) required by §117.1340 of this title (relating to Continuous Demonstration of Compliance) must be installed and operational before conducting testing under subsection (a) of this section. Verification of operational status must, at a minimum, include completion of the initial monitor certification and the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device.(d) Initial compliance with the emission specifications of this division for units operating with CEMS or PEMS in accordance with §117.1340 of this title must be demonstrated after monitor certification testing using the NOX CEMS or PEMS as follows.(1) To comply with the NOX emission specification in pounds per million British thermal units (lb/MMBtu) on a rolling 30-day average, NOX emissions from a unit are monitored for 30 consecutive unit operating days and the 30-day average emission rate is used to determine compliance with the NOX emission specification. The 30-day average emission rate is calculated as the average of all hourly emissions data recorded by the monitoring system during the 30-day test period.(2) To comply with the NOX emission specification in lb/MMBtu on a rolling 24-hour average, NOX emissions from a unit are monitored for 24 consecutive unit operating hours and the 24-hour average emission rate is used to determine compliance with the NOX emission specification. The 24-hour average emission rate is calculated as the average of all hourly emissions data recorded by the monitoring system during the 24-hour test period. Compliance with the NOX emission specification for fuel oil firing must be determined based on the first 24 consecutive operating hours a unit fires fuel oil.(3) To comply with the NOX emission specification in pounds per hour or parts per million by volume (ppmv) at 15% O2 dry basis, on a block one-hour average, any one-hour period while operating at the maximum rated capacity, or as near thereto as practicable, after CEMS or PEMS certification testing required in §117.1340 of this title is used to determine compliance with the NOX emission specification. (4) To comply with the NOX emission specification in lb/MMBtu on a block one-hour average, any one-hour period while operating at the maximum rated capacity, or as near thereto as practicable, after CEMS or PEMS certification testing required in §117.1340 of this title is used to determine compliance with the NOX emission specification.(5) To comply with the NOX emission specification in pounds per megawatt-hour output on an annual average basis, NOX emissions from the unit are monitored in accordance with §117.1340(a) and (k) of this title. The annual average is calculated as the average of all hourly emissions data recorded by the monitoring system. The averaging period for demonstrating initial compliance with the emission specification in §117.1310(a)(1)(C) of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) is from March 1, 2009, through February 28, 2010.(6) To comply with the NOX emission specification in lb/MMBtu on a rolling 168-hour average, NOX emissions from all units in the system are monitored for 168 consecutive unit operating hours and the 168-hour average emission rate is used to determine compliance with the NOX emission specification. The 168-hour average emission rate is calculated using the equation in §117.1310(a)(1)(D) of this title by calculating the system-wide heat input weighted average for each hour and then averaging the hourly data during the 168-hour test period.(7) To comply with the CO emission specification in ppmv on a rolling 24-hour average, CO emissions from a unit are monitored for 24 consecutive unit operating hours and the rolling 24-hour average emission rate is used to determine compliance with the CO emission specification. The rolling 24-hour average emission rate is calculated as the average of all hourly emissions data recorded by the monitoring system during the 24-hour test period.</content><note type="source"><p>Source Note: The provisions of this §117.1335 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1340"><num value="117.1340">§117.1340</num><heading>Continuous Demonstration of Compliance</heading><content>(a) Nitrogen oxides (NOX ) monitoring. The owner or operator of each unit subject to the emission specifications of this division, shall install, calibrate, maintain, and operate a continuous emissions monitoring system (CEMS), predictive emissions monitoring system (PEMS), or other system specified in this section to measure NOX on an individual basis. Each NOX monitor (CEMS or PEMS) is subject to the relative accuracy test audit relative accuracy requirements of 40 Code of Federal Regulations (CFR) Part 75, Appendix B, Figure 2, except the concentration options (parts per million by volume (ppmv) and pound per million British thermal units (lb/MMBtu)) do not apply. Each NOX monitor must meet either the relative accuracy percent requirement of 40 CFR Part 75, Appendix B, Figure 2, or an alternative relative accuracy requirement of ± 2.0 ppmv from the reference method mean value.(b) Carbon monoxide (CO) monitoring. The owner or operator shall monitor CO exhaust emissions from each unit subject to the emission specifications of this division using one or more of the methods specified in §117.8120 of this title (relating to Carbon Monoxide (CO) Monitoring). (c) Ammonia monitoring requirements. The owner or operator of units that are subject to the ammonia emission specification of §117.1310(b)(3) of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) shall comply with the ammonia monitoring requirements of §117.8130 of this title (relating to Ammonia Monitoring).(d) CEMS requirements. The owner or operator of any CEMS used to meet a pollutant monitoring requirement of this section shall comply with the requirements of §117.8110(a) of this title (relating to Emission Monitoring System Requirements for Utility Electric Generation Sources).(e) Acid rain peaking units. The owner or operator of each peaking unit as defined in 40 CFR §72.2, may:(1) monitor operating parameters for each unit in accordance with 40 CFR Part 75, Appendix E, §1.1 or §1.2 and calculate NOX emission rates based on those procedures; or(2) use CEMS or PEMS in accordance with this section to monitor NOX emission rates.(f) Auxiliary steam boilers. The owner or operator of each auxiliary steam boiler shall comply with the following to monitor NOX emission rates:(1) install, calibrate, maintain, and operate a CEMS in accordance with this section; or(2) comply with the appropriate (considering boiler maximum rated capacity and annual heat input) industrial boiler monitoring requirements of §117.440 of this title (relating to Continuous Demonstration of Compliance). (g) PEMS requirements. The owner or operator of any PEMS used to meet a pollutant monitoring requirement of this section shall comply with the following. The required PEMS and fuel flow meters must be used to demonstrate continuous compliance with the emission specifications of this division.(1) The PEMS must predict the pollutant emissions in the units of the applicable emission limitations of this division.(2) The PEMS must meet the requirements of §117.8110(b) of this title.(h) Stationary gas turbine monitoring. The owner or operator of each stationary gas turbine subject to the emission specifications of §117.1310 of this title, instead of monitoring emissions in accordance with the monitoring requirements of 40 CFR Part 75, may comply with the following monitoring requirements: (1) for stationary gas turbines rated less than 30 megawatts (MW) or peaking gas turbines (as defined in §117.10 of this title (relating to Definitions)) that use steam or water injection to comply with the emission specifications of §117.1310(a)(3) of this title:(A) install, calibrate, maintain and operate a CEMS or PEMS in compliance with this section; or(B) install, calibrate, maintain, and operate a continuous monitoring system to monitor and record the average hourly fuel and steam or water consumption. The system must be accurate to within ± 5.0%. The steam-to-fuel or water-to-fuel ratio monitoring data must be used for demonstrating continuous compliance with the applicable emission specification of §117.1310 of this title; and(2) for all other stationary gas turbines subject to the emission specifications of §117.1310 of this title, install, calibrate, maintain, and operate a CEMS or PEMS in compliance with this section.(i) Totalizing fuel flow meters. The owner or operator of units listed in this subsection shall install, calibrate, maintain, and operate totalizing fuel flow meters to individually and continuously measure the gas and liquid fuel usage. A computer that collects, sums, and stores electronic data from continuous fuel flow meters is an acceptable totalizer. In lieu of installing a totalizing fuel flow meter on a unit, an owner or operator may opt to assume fuel consumption at maximum design fuel flow rates during hours of the unit's operation. The units are:(1) any unit subject to the emission specifications of §117.1310 of this title;(2) any stationary gas turbine with an MW rating greater than or equal to 1.0 MW operated more than 850 hours per year; and(3) any unit claimed exempt from the emission specifications of this division using the low annual capacity factor exemption of §117.1303(a)(2) of this title (relating to Exemptions).(j) Run time meters. The owner or operator of any stationary gas turbine using the exemption of §117.1303(a)(3) of this title shall record the operating time with an elapsed run time meter.(k) Monitoring for output-based NOX emission specification. The owner or operator of any unit that complies with the optional output-based NOX emission specification in §117.1310(a)(1)(C) of this title, shall comply with the following:(1) install, calibrate, maintain, and operate a system to continuously monitor, at least once every 15 minutes, and record the gross energy production of the unit in megawatt-hours;(2) for each hour of operation, determine the total mass emission of NOX , in pounds, from the unit using the NOX monitoring requirements of subsection (a) of this section and the fuel monitoring requirements of subsection (i) of this section; and(3) for each hour of operation, calculate and record the NOX emissions in pounds per megawatt-hour using the monitoring specified in paragraphs (1) and (2) of this subsection. (l) Loss of exemption. The owner or operator of any unit claimed exempt from the emission specifications of this division using the exemptions in §117.1303(a)(2) or (3) of this title, shall notify the executive director within seven days if the applicable limit is exceeded.(1) If the limit is exceeded, the exemption from the emission specifications of this division is permanently withdrawn.(2) Within 90 days after loss of the exemption, the owner or operator shall submit a compliance plan detailing a plan to meet the applicable compliance limit as soon as possible, but no later than 24 months after exceeding the limit. The plan must include a schedule of increments of progress for the installation of the required control equipment.(3) The schedule is subject to the review and approval of the executive director.(m) Data used for compliance. After the initial demonstration of compliance required by §117.1335 of this title (relating to Initial Demonstration of Compliance), the methods required in this section must be used to determine compliance with the emission specifications of §117.1310 of this title. Compliance with the emission specifications may also be determined at the discretion of the executive director using any commission compliance method.</content><note type="source"><p>Source Note: The provisions of this §117.1340 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1345"><num value="117.1345">§117.1345</num><heading>Notification, Recordkeeping, and Reporting Requirements</heading><content>(a) Startup and shutdown records. For units subject to the startup and/or shutdown provisions of §101.222 of this title (relating to Demonstrations), hourly records must be made of startup and/or shutdown events and maintained for a period of at least two years. Records must be available for inspection by the executive director, United States Environmental Protection Agency, and any local air pollution control agency having jurisdiction upon request. These records must include, but are not limited to: type of fuel burned; quantity of each type fuel burned; gross and net energy production in megawatt-hours (MW-hr); and the date, time, and duration of the event. (b) Notification. The owner or operator of a unit subject to the emission specifications of this division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources) shall submit notification to the appropriate regional office and any local air pollution control agency having jurisdiction as follows:(1) written notification of the date of any testing conducted under §117.1335 of this title (relating to Initial Demonstration of Compliance) at least 15 days prior to such date; and(2) written notification of the date of any continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) performance evaluation conducted under §117.1340 of this title (relating to Continuous Demonstration of Compliance) at least 15 days prior to such date.(c) Reporting of test results. The owner or operator of an affected unit shall furnish the Office of Compliance and Enforcement, the appropriate regional office, and any local air pollution control agency having jurisdiction a copy of any testing conducted under §117.1335 of this title or any CEMS or PEMS performance evaluation conducted under §117.1340 of this title:(1) within 60 days after completion of such testing or evaluation; and(2) not later than the appropriate compliance schedules specified in §117.9130 of this title (relating to Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources). (d) Semiannual reports. The owner or operator of a unit required to install a CEMS, PEMS, or steam-to-fuel or water-to-fuel ratio monitoring system under §117.1340 of this title shall report in writing to the executive director on a semiannual basis any exceedance of the applicable emission limitations in this division and the monitoring system performance. All reports must be postmarked or received by the 30th day following the end of each calendar semiannual period. Written reports must include the following information: (1) the magnitude of excess emissions computed in accordance with 40 Code of Federal Regulations (CFR) §60.13(h), any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the unit operating time during the reporting period. For stationary gas turbines using steam-to-fuel or water-to-fuel ratio monitoring to demonstrate compliance in accordance with §117.1340 of this title, excess emissions are computed as each one-hour period that the hourly steam-to-fuel or water-to-fuel ratio is less than the ratio determined to result in compliance during the initial demonstration of compliance test required by §117.1335 of this title;(2) specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the affected unit, the nature and cause of any malfunction (if known) and the corrective action taken or preventative measures adopted;(3) the date and time identifying each period when the continuous monitoring system was inoperative, except for zero and span checks and the nature of the system repairs or adjustments;(4) when no excess emissions have occurred or the continuous monitoring system has not been inoperative, repaired, or adjusted, such information must be stated in the report; and(5) if the total duration of excess emissions for the reporting period is less than 1.0% of the total unit operating time for the reporting period and the CEMS, PEMS, or steam-to-fuel or water-to-fuel ratio monitoring system downtime for the reporting period is less than 5.0% of the total unit operating time for the reporting period, only a summary report form (as outlined in the latest edition of the commission's Guidance for Preparation of Summary, Excess Emission, and Continuous Monitoring System Reports) must be submitted, unless otherwise requested by the executive director. If the total duration of excess emissions for the reporting period is greater than or equal to 1.0% of the total unit operating time for the reporting period or the CEMS, PEMS, or steam-to-fuel or water-to-fuel ratio monitoring system downtime for the reporting period is greater than or equal to 5.0% of the total unit operating time for the reporting period, a summary report and an excess emission report must both be submitted.(e) Recordkeeping. The owner or operator of a unit subject to the requirements of this division shall maintain records of the data specified in this subsection. Records must be kept for a period of at least five years and made available for inspection by the executive director, United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction upon request. Operating records for each unit must be recorded and maintained at a frequency equal to the applicable emission specification averaging period, or for units claimed exempt from the emission specifications based on low annual capacity factor, monthly. Records must include:(1) emission rates in units of the applicable standards;(2) gross energy production in MW-hr (not applicable to auxiliary steam boilers), except as specified in paragraph (8) of this subsection;(3) quantity and type of each fuel burned;(4) the injection rate of reactant chemicals (if applicable); (5) emission monitoring data, in accordance with §117.1340 of this title, including:(A) the date, time, and duration of any malfunction in the operation of the monitoring system, except for zero and span checks, if applicable, and a description of system repairs and adjustments undertaken during each period;(B) the results of initial certification testing, evaluations, calibrations, checks, adjustments, and maintenance of CEMS, PEMS, or operating parameter monitoring systems; and(C) actual emissions or operating parameter measurements, as applicable;(6) the results of performance testing, including initial demonstration of compliance testing conducted in accordance with §117.1335 of this title;(7) records of hours of operation;(8) for any unit that the owner or operator elects to comply with the output-based emission specification in §117.1310(a)(1)(C) of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration):(A) hourly records of the gross energy production in MW-hr; (B) records of hourly and annual average nitrogen oxides (NOX ) emissions in pounds per megawatt-hour (lb/MW-hr); and(C) the averaging period for the annual average NOX emissions in lb/MW-hr, for demonstrating continuous compliance is from January 1 through December 31 of each calendar year, beginning on January 1, 2010; and(9) for any unit that the owner or operator elects to comply with the system-wide heat input weighted average emission specification in §117.1310(a)(1)(D) of this title:(A) hourly records of average NOX emissions in pounds per million British thermal units (lb/MMBtu) for each utility boiler in the system;(B) hourly records of average heat input in million British thermal units per hour (MMBtu/hr) for each utility boiler in the system;(C) hourly records of system-wide heat input weighted average NOX emissions in lb/MMBtu; and(D) hourly records of the rolling 168-hour average of the system-wide heat input weighted average NOX emissions in lb/MMBtu.</content><note type="source"><p>Source Note: The provisions of this §117.1345 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1350"><num value="117.1350">§117.1350</num><heading>Initial Control Plan Procedures</heading><content>(a) The owner or operator of any unit at a major source of nitrogen oxides (NOX ) in the Dallas-Fort Worth eight-hour ozone nonattainment area that is subject to §117.1310 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) shall submit an initial control plan. The control plan must include:(1) a list of all combustion units at the account that are listed in §117.1310 of this title. The list must include for each unit: (A) the maximum rated capacity;(B) anticipated annual capacity factor;(C) estimated or measured NOX emission data in the units associated with the category of equipment from §117.1310 of this title;(D) the method of determination for the NOX emission data required by subparagraph (C) of this paragraph;(E) the facility identification number and emission point number as submitted to the Emissions Assessment Section of the commission; and(F) the emission point number as listed on the Maximum Allowable Emissions Rate Table of any applicable commission permit;(2) identification of all units with a claimed exemption from the emission specifications of §117.1310 of this title and the rule basis for the claimed exemption;(3) a list of units to be controlled and the type of control to be applied for all such units, including an anticipated construction schedule; (4) for units required to install totalizing fuel flow meters in accordance with §117.1340 of this title (relating to Continuous Demonstration of Compliance), indication of whether the devices are currently in operation, and if so, whether they have been installed as a result of the requirements of this chapter; and(5) for units required to install continuous emissions monitoring systems or predictive emissions monitoring systems in accordance with §117.1340 of this title, indication of whether the devices are currently in operation, and if so, whether they have been installed as a result of the requirements of this chapter.(b) The initial control plan must be submitted to the Office of Compliance and Enforcement, the appropriate regional office, and the Office of Air by the applicable date specified for initial control plans in §117.9130 of this title (relating to Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources).</content><note type="source"><p>Source Note: The provisions of this §117.1350 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1354"><num value="117.1354">§117.1354</num><heading>Final Control Plan Procedures for Attainment Demonstration Emission Specifications</heading><content>(a) The owner or operator of utility boilers listed in §117.1300 of this title (relating to Applicability) at a major source of nitrogen oxides (NOX ) shall submit to the Office of Compliance and Enforcement, the appropriate regional office, and the Office of Air, a final control report to show compliance with the requirements of §117.1310 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration). The report must include:(1) the methods of NOX control for each utility boiler;(2) the emissions measured by testing required in §117.1335 of this title (relating to Initial Demonstration of Compliance);(3) the submittal date, and whether sent to the central or the regional office (or both), of any compliance stack test report or monitor certification report required by §117.1335 of this title that is not being submitted concurrently with the final compliance report; and(4) the specific rule citation for any utility boiler with a claimed exemption from the emission specification of §117.1310 of this title.(b) The report must be submitted by the applicable date specified for final control plans in §117.9130 of this title (relating to Compliance Schedule Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources).</content><note type="source"><p>Source Note: The provisions of this §117.1354 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scC/s117.1356"><num value="117.1356">§117.1356</num><heading>Revision of Final Control Plan</heading><content>A revised final control plan may be submitted by the owner or operator, along with any required permit applications. Such a plan must adhere to the emission specifications and the final compliance dates of this division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources). Replacement new units may be included in the control plan. The revision of the final control plan is subject to the review and approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §117.1356 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c117/scD"><num value="D">SUBCHAPTER D</num><heading>COMBUSTION CONTROL AT MINOR SOURCES IN OZONE NONATTAINMENT AREAS</heading><section identifier="/us/state/tx/tac/t30/p1/c117/scD/s117.2000"><num value="117.2000">§117.2000</num><heading>Applicability</heading><content>This division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Minor Sources) applies in the Houston-Galveston-Brazoria ozone nonattainment area to the following equipment at any stationary source of nitrogen oxides (NOX ) that is not a major source of NO X :(1) boilers and process heaters;(2) stationary, reciprocating internal combustion engines; and(3) stationary gas turbines, including duct burners.</content><note type="source"><p>Source Note: The provisions of this §117.2000 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scD/s117.2003"><num value="117.2003">§117.2003</num><heading>Exemptions</heading><content>(a) This division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Minor Sources) does not apply to the following, except as specified in §§117.2030(c), 117.2035(g), and 117.2045(b) and (c) of this title (relating to Operating Requirements; Monitoring and Testing Requirements; and Recordkeeping and Reporting Requirements):(1) boilers and process heaters with a maximum rated capacity of 2.0 million British thermal units per hour (MMBtu/hr) or less;(2) the following stationary engines:(A) engines with a horsepower (hp) rating of less than 50 hp; (B) engines used in research and testing;(C) engines used for purposes of performance verification and testing;(D) engines used solely to power other engines or gas turbines during startups;(E) engines operated exclusively in emergency situations, except that operation for testing or maintenance purposes is allowed for up to 52 hours per year, based on a rolling 12-month average. Any new, modified, reconstructed, or relocated stationary diesel engine placed into service on or after October 1, 2001, is ineligible for this exemption. For the purposes of this subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title (relating to General Definitions) and 40 Code of Federal Regulations (CFR) §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title (relating to Definitions), a used engine from anywhere outside that account; (F) engines used in response to and during the existence of any officially declared disaster or state of emergency;(G) engines used directly and exclusively by the owner or operator for agricultural operations necessary for the growing of crops or raising of fowl or animals;(H) diesel engines placed into service before October 1, 2001, that:(i) operate less than 100 hours per year, based on a rolling 12-month average; and(ii) have not been modified, reconstructed, or relocated on or after October 1, 2001. For the purposes of this clause, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title and 40 CFR §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title, a used engine from anywhere outside that account; and(I) new, modified, reconstructed, or relocated stationary diesel engines placed into service on or after October 1, 2001, that:(i) operate less than 100 hours per year, based on a rolling 12-month average, in other than emergency situations; and(ii) meet the corresponding emission standard for non-road engines listed in 40 CFR §89.112(a), Table 1 (October 23, 1998) and in effect at the time of installation, modification, reconstruction, or relocation. For the purposes of this subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title and 40 CFR §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title, a used engine from anywhere outside that account; and(3) stationary gas turbines rated at less than 1.0 megawatt with initial start of operation on or before October 1, 2001.(b) At any stationary source of nitrogen oxides that is not subject to Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program), the following are exempt from the requirements of this division, except for the totalizing fuel flow requirements of §117.2035(a) and (d) and §117.2045(a)(1) of this title:(1) any boiler or process heater with a maximum rated capacity greater than 2.0 MMBtu/hr and less than 5.0 MMBtu/hr that has an annual heat input less than or equal to 1.8 (109 ) British thermal units (Btu) per calendar year; and(2) any boiler or process heater with a maximum rated capacity equal to or greater than 5.0 MMBtu/hr that has an annual heat input less than or equal to 9.0 (109 ) Btu per calendar year.</content><note type="source"><p>Source Note: The provisions of this §117.2003 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scD/s117.2010"><num value="117.2010">§117.2010</num><heading>Emission Specifications</heading><content>(a) For sources that are subject to Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program), the nitrogen oxides (NOX ) emission rate values used to determine allocations for Chapter 101, Subchapter H, Division 3 of this title must be the lower of any applicable permit limit in a permit issued before January 2, 2001; any permit issued on or after January 2, 2001, that the owner or operator submitted an application determined to be administratively complete by the executive director before January 2, 2001; any limit in a permit by rule under which construction commenced by January 2, 2001; or the emission specifications in subsection (c) of this section. The averaging time must be as specified in Chapter 101, Subchapter H, Division 3 of this title.(b) For sources that are not subject to Chapter 101, Subchapter H, Division 3 of this title, NOX emissions are limited to the lower of any applicable permit limit in a permit issued before January 2, 2001; any permit issued on or after January 2, 2001, that the owner or operator submitted an application determined to be administratively complete by the executive director before January 2, 2001; any limit in a permit by rule under which construction commenced by January 2, 2001; or the emission specifications in subsection (c) of this section. The averaging time must be as follows:(1) if the unit is operated with a NOX continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) under §117.2035(c) of this title (relating to Monitoring and Testing Requirements), either as:(A) a rolling 30-day average period, in the units of the applicable standard;(B) a block one-hour average, in the units of the applicable standard; or(C) a block one-hour average, in pounds per hour, for boilers and process heaters, calculated as the product of the boiler's or process heater's maximum rated capacity and its applicable limit in pounds per million British thermal units (lb/MMBtu); or(2) if the unit is not operated with a NOX CEMS or PEMS under §117.2035(c) of this title, a block one-hour average, in the units of the applicable standard. (c) The following NOX emission specifications must be used in conjunction with subsection (a) of this section to determine allocations for Chapter 101, Subchapter H, Division 3 of this title, or in conjunction with subsection (b) of this section to establish unit-by-unit emission specifications, as appropriate:(1) from boilers and process heaters:(A) gas-fired, 0.036 lb/MMBtu heat input (or alternatively, 30 parts per million by volume (ppmv) at 3.0% oxygen (O2 ), dry basis); and(B) liquid-fired, 0.072 lb/MMBtu heat input (or alternatively, 60 ppmv at 3.0% O2 , dry basis);(2) from stationary, gas-fired, reciprocating internal combustion engines:(A) fired on landfill gas, 0.60 gram per horsepower-hour (g/hp-hr); and(B) all others, 0.50 g/hp-hr;(3) from stationary, dual-fuel, reciprocating internal combustion engines, 5.83 g/hp-hr;(4) from stationary, diesel, reciprocating internal combustion engines:(A) placed into service before October 1, 2001, that have not been modified, reconstructed, or relocated on or after October 1, 2001, the lower of 11.0 g/hp-hr or the emission rate established by testing, monitoring, manufacturer's guarantee, or manufacturer's other data. For the purposes of this paragraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title (relating to General Definitions) and 40 Code of Federal Regulations §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title (relating to Definitions), a used engine from anywhere outside that account; and(B) for engines not subject to subparagraph (A) of this paragraph:(i) with a horsepower (hp) rating of 50 hp or greater, but less than 100 hp, that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2003, 6.9 g/hp-hr;(II) on or after October 1, 2003, but before October 1, 2007, 5.0 g/hp-hr; and(III) on or after October 1, 2007, 3.3 g/hp-hr;(ii) with a horsepower rating of 100 hp or greater, but less than 175 hp, that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2002, 6.9 g/hp-hr;(II) on or after October 1, 2002, but before October 1, 2006, 4.5 g/hp-hr; and(III) on or after October 1, 2006, 2.8 g/hp-hr;(iii) with a horsepower rating of 175 hp or greater, but less than 300 hp, that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2002, 6.9 g/hp-hr;(II) on or after October 1, 2002, but before October 1, 2005, 4.5 g/hp-hr; and(III) on or after October 1, 2005, 2.8 g/hp-hr;(iv) with a horsepower rating of 300 hp or greater, but less than 600 hp, that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2005, 4.5 g/hp-hr; and(II) on or after October 1, 2005, 2.8 g/hp-hr;(v) with a horsepower rating of 600 hp or greater, but less than or equal to 750 hp, that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2005, 4.5 g/hp-hr; and(II) on or after October 1, 2005, 2.8 g/hp-hr; and(vi) with a horsepower rating of 750 hp or greater that are installed, modified, reconstructed, or relocated:(I) on or after October 1, 2001, but before October 1, 2005, 6.9 g/hp-hr; and(II) on or after October 1, 2005, 4.5 g/hp-hr;(5) from stationary gas turbines (including duct burners), 0.15 lb/MMBtu; and(6) as an alternative to the emission specifications in paragraphs (1) - (5) of this subsection for units with an annual capacity factor of 0.0383 or less, 0.060 lb/MMBtu heat input. For units placed into service on or before January 1, 1997, the 1997 - 1999 average annual capacity factor must be used to determine whether the unit is eligible for the emission specification of this paragraph. For units placed into service after January 1, 1997, the annual capacity factor must be calculated from two consecutive years in the first five years of operation to determine whether the unit is eligible for the emission specification of this paragraph, using the same two consecutive years chosen for the activity level baseline. The five-year period begins at the end of the adjustment period as defined in §101.350 of this title (relating to Definitions).(d) The maximum rated capacity used to determine the applicability of the emission specifications in subsection (c) of this section must be:(1) the greater of the following:(A) the maximum rated capacity as of December 31, 2000; or(B) the maximum rated capacity after December 31, 2000; or(2) alternatively, the maximum rated capacity authorized by a permit issued under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) on or after January 2, 2001, for which the owner or operator submitted an application determined to be administratively complete by the executive director before January 2, 2001, provided that the maximum rated capacity authorized by the permit issued on or after January 2, 2001, is no less than the maximum rated capacity represented in the permit application as of January 2, 2001.(e) A unit's classification is determined by the most specific classification applicable to the unit as of December 31, 2000. For example, a unit that is classified as a stationary gas-fired engine as of December 31, 2000, but subsequently is authorized to operate as a dual-fuel engine, is classified as a stationary gas-fired engine for the purposes of this chapter.(f) Changes after December 31, 2000, to a unit subject to an emission specification in subsection (c) of this section (ESAD unit) that result in increased NOX emissions from a unit not subject to an emission specification in subsection (c) of this section (non-ESAD unit), such as redirecting one or more fuel or waste streams containing chemical-bound nitrogen to an incinerator or a flare, is only allowed if:(1) the increase in NOX emissions at the non-ESAD unit is determined using a CEMS or PEMS that meets the requirements of §117.2035(c) of this title, or through stack testing that meets the requirements of §117.2035(e) of this title; and(2) either of the following conditions is met:(A) for sources that are subject to Chapter 101, Subchapter H, Division 3 of this title, a deduction in allowances equal to the increase in NOX emissions at the non-ESAD unit is made as specified in §101.354 of this title (relating to Allowance Deductions); or(B) for sources that are not subject to Chapter 101, Subchapter H, Division 3 of this title, emission credits equal to the increase in NOX emissions at the non-ESAD unit are obtained and used in accordance with §117.9800 of this title (relating to Use of Emission Credits for Compliance).(g) A source that met the definition of major source on December 31, 2000, is always classified as a major source for purposes of this chapter. A source that did not meet the definition of major source (i.e., was a minor source, or did not yet exist) on December 31, 2000, but at any time after December 31, 2000, becomes a major source, is from that time forward always classified as a major source for purposes of this chapter.(h) The availability under subsection (c)(6) of this section of an emission specification for units with an annual capacity factor of 0.0383 or less is based on the unit's status on December 31, 2000. Reduced operation after December 31, 2000, cannot be used to qualify for a more lenient emission specification under subsection (c)(6) of this section than would otherwise apply to the unit.(i) No person shall allow the discharge into the atmosphere from any unit subject to NOX emission specifications in subsection (c) of this section, emissions in excess of the following, except as provided in §117.2025 of this title (relating to Alternative Case Specific Specifications):(1) carbon monoxide (CO), 400 ppmv at 3.0% O2 , dry basis (or alternatively, 3.0 g/hp-hr for stationary internal combustion engines):(A) on a rolling 24-hour averaging period, for units equipped with CEMS or PEMS for CO; and(B) on a one-hour average, for units not equipped with CEMS or PEMS for CO; and(2) for units that inject urea or ammonia into the exhaust stream for NOX control, ammonia emissions of 10 ppmv at 3.0% O2 , dry, for boilers and process heaters; 15% O2 , dry, for stationary gas turbines (including duct burners used in turbine exhaust ducts), gas-fired lean-burn engines, and diesel engines; and 3.0% O2 , dry, for all other units, based on:(A) a block one-hour averaging period for units not equipped with a CEMS or PEMS for ammonia; or(B) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for ammonia.</content><note type="source"><p>Source Note: The provisions of this §117.2010 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scD/s117.2025"><num value="117.2025">§117.2025</num><heading>Alternative Case Specific Specifications</heading><content>(a) Where a person can demonstrate that an affected unit cannot attain the carbon monoxide (CO) or ammonia specifications of §117.2010(i) of this title (relating to Emission Specifications), the executive director may approve emission specifications different from the CO or ammonia specifications in §117.2010(i) of this title for that unit. The executive director:(1) shall consider on a case-by-case basis the technological and economic circumstances of the individual unit;(2) shall determine that such specifications are the result of the lowest emission limitation the unit is capable of meeting after the application of controls to meet the nitrogen oxides emission specifications of §117.2010 of this title; and(3) in determining whether to approve alternative emission specifications, may take into consideration the ability of the plant where the unit is located to meet emission specifications through system-wide averaging at maximum capacity.(b) Any owner or operator affected by the executive director's decision to deny an alternative case specific emission specification may file a motion to overturn the executive director's decision. The requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) apply.</content><note type="source"><p>Source Note: The provisions of this §117.2025 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scD/s117.2030"><num value="117.2030">§117.2030</num><heading>Operating Requirements</heading><content>(a) The owner or operator shall operate any unit subject to §117.2010 of this title (relating to Emission Specifications) in compliance with those requirements.(b) All units subject to §117.2010 of this title must be operated so as to minimize nitrogen oxides (NOX ) emissions, consistent with the emission control techniques selected, over the unit's operating or load range during normal operations. Such operational requirements include the following.(1) Each boiler must be operated with oxygen (O 2), carbon monoxide (CO), or fuel trim.(2) Each boiler and process heater controlled with forced flue gas recirculation (FGR) to reduce NOX emissions must be operated such that the proportional design rate of FGR is maintained, consistent with combustion stability, over the operating range.(3) Each unit controlled with post-combustion control techniques must be operated such that the reducing agent injection rate is maintained to limit NOX concentrations to less than or equal to the NOX concentrations achieved at maximum rated capacity.(4) Each stationary internal combustion engine controlled with nonselective catalytic reduction must be equipped with an automatic air-fuel ratio (AFR) controller that operates on exhaust O2 or CO control and maintains AFR in the range required to meet the engine's applicable emission limits.(5) Each stationary internal combustion engine must be checked for proper operation according to §117.8140(b) of this title (relating to Emission Monitoring for Engines).(c) No person shall start or operate any stationary diesel or dual-fuel engine for testing or maintenance between the hours of 6:00 a.m. and noon, except:(1) for specific manufacturer's recommended testing requiring a run of over 18 consecutive hours;(2) to verify reliability of emergency equipment (e.g., emergency generators or pumps) immediately after unforeseen repairs. Routine maintenance such as an oil change is not considered to be an unforeseen repair; or(3) firewater pumps for emergency response training conducted in the months of April through October.</content><note type="source"><p>Source Note: The provisions of this §117.2030 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scD/s117.2035"><num value="117.2035">§117.2035</num><heading>Monitoring and Testing Requirements</heading><content>(a) Totalizing fuel flow meters.(1) The owner or operator of each unit subject to §117.2010 of this title (relating to Emission Specifications) and subject to Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program), or of each unit claimed exempt under §117.2003(b) of this title (relating to Exemptions) shall install, calibrate, maintain, and operate totalizing fuel flow meters with an accuracy of ± 5%, to individually and continuously measure the gas and liquid fuel usage. A computer that collects, sums, and stores electronic data from continuous fuel flow meters is an acceptable totalizer. The owner or operator of units with totalizing fuel flow meters installed prior to March 31, 2005, that do not meet the accuracy requirements of this subsection shall either recertify or replace existing meters to meet the ± 5% accuracy required as soon as practicable, but no later than March 31, 2007. For the purpose of compliance with this subsection for units having pilot fuel supplied by a separate fuel system or from an unmonitored portion of the same fuel system, the fuel flow to pilots may be calculated using the manufacturer's design flow rates rather than measured with a fuel flow meter. The calculated pilot fuel flow rate must be added to the monitored fuel flow when fuel flow is totaled.(2) The following are alternatives to the fuel flow monitoring requirements of this subsection.(A) Units operating with a nitrogen oxides (NOX ) and diluent continuous emissions monitoring system (CEMS) under subsection (c) of this section may monitor stack exhaust flow using the flow monitoring specifications of 40 Code of Federal Regulations (CFR) Part 60, Appendix B, Performance Specification 6 or 40 CFR Part 75, Appendix A.(B) Units that vent to a common stack with a NOX and diluent CEMS under subsection (c) of this section may use a single totalizing fuel flow meter.(C) Diesel engines operating with run time meters may meet the fuel flow monitoring requirements of this subsection through monthly fuel use records.(D) Units of the same category of equipment subject to Chapter 101, Subchapter H, Division 3 of this title may share a single totalizing fuel flow meter provided:(i) the owner or operator performs a stack test in accordance with subsection (e) of this section for each unit sharing the totalizing fuel flow meter; and(ii) the testing results from the unit with the highest emission rate (in pounds per million British thermal units or grams per horsepower-hour) are used for reporting purposes in §101.359 of this title (relating to Reporting) for all units sharing the totalizing fuel flow meter.(E) The owner or operator of a unit or units claimed exempt under §117.2003(b) of this title, located at an independent school district may demonstrate compliance with the exemption by the following:(i) in addition to the records required by §117.2045(a)(1) of this title (relating to Recordkeeping and Reporting Requirements), maintain the following monthly records in either electronic or written format. These records must be kept for a period of at least five years and must be made available upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction;(I) total fuel usage for the entire site;(II) the estimated hours of operation for each unit;(III) the estimated average operating rate (e.g., a percentage of maximum rated capacity) for each unit; and(IV) the estimated fuel usage for each unit; and(ii) within 60 days of written request by the executive director, submit for review and approval all methods, engineering calculations, and process information used to estimate the hours of operation, operating rates, and fuel usage for each unit.(F) The owner or operator of units claimed exempt under §117.2003(b) of this title may share a single totalizing fuel flow meter to demonstrate compliance with the exemption, provided that:(i) all affected units at the site qualify for the exemption under §117.2003(b) of this title; and(ii) the total fuel usage for all units at the site is less than:(I) the annual fuel usage limitation in §117.2003(b)(1) of this title; or(II) the annual fuel usage limitation in §117.2003(b)(2) of this title when all affected units at the site are equal to or greater than 5.0 million British thermal units per hour.(G) Stationary reciprocating internal combustion engines and stationary gas turbines equipped with a continuous monitoring system that continuously monitors horsepower and hours of operation are not required to install totalizing fuel flow meters. The continuous monitoring system must be installed, calibrated, maintained, and operated according to manufacturer's procedures.(b) Oxygen (O2 ) monitors. If the owner or operator installs an O2 monitor, the criteria in §117.8100(a) of this title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources) should be considered the appropriate guidance for the location and calibration of the monitor.(c) NOX monitors. If the owner or operator installs a CEMS or predictive emissions monitoring system (PEMS), it must meet the requirements of §117.8100(a) or (b) of this title. If a PEMS is used, the PEMS must predict the pollutant emissions in the units of the applicable emission specifications of this division (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Minor Sources).(d) Monitor installation schedule. Installation of monitors must be performed in accordance with the schedule specified in §117.9200 of this title (relating to Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Minor Sources).(e) Testing requirements. The owner or operator of any unit subject to §117.2010 of this title shall comply with the following testing requirements.(1) Each unit must be tested for NOX , carbon monoxide (CO), and O2 emissions. (2) One of the ammonia monitoring procedures specified in §117.8130 of this title (relating to Ammonia Monitoring) must be used to demonstrate compliance with the ammonia emission specification of §117.2010(i)(2) of this title for units that inject urea or ammonia into the exhaust stream for NOX control. This paragraph does not apply to stationary diesel engines equipped with selective catalytic reduction (SCR) systems that meet the following criteria.(A) The SCR system must use a reductant other than the engine's fuel.(B) The SCR system must operate with a diagnostic system that monitors reductant quality and tank levels. (C) The diagnostic system must alert owners or operators to the need to refill the reductant tank before it is empty or to replace the reductant if the reductant does not meet applicable concentration specifications. (D) If the SCR system uses input from an exhaust NOX sensor (or other sensor) to alert owners or operators when the reductant quality is inadequate, the reductant quality does not need to be monitored separately by the diagnostic system. (E) The reductant tank level must be monitored in accordance with the manufacturer's design to demonstrate compliance with this paragraph. (F) The method of alerting an owner or operator must be a visual or audible alarm.(3) For units not equipped with CEMS or PEMS, all testing must be conducted according to §117.8000 of this title (relating to Stack Testing Requirements). In lieu of the test methods specified in §117.8000 of this title, the owner or operator may use American Society for Testing and Materials (ASTM) D6522-00 to perform the NOX , CO, and O2 testing required by this subsection on natural gas-fired reciprocating engines, combustion turbines, boilers, and process heaters. If the owner or operator elects to use ASTM D6522-00 for the testing requirements, the report must contain the information specified in §117.8010 of this title (relating to Compliance Stack Test Reports).(4) Test results must be reported in the units of the applicable emission specifications and averaging periods. If compliance testing is based on 40 CFR Part 60, Appendix A reference methods, the report must contain the information specified in §117.8010 of this title.(5) For units equipped with CEMS or PEMS, the CEMS or PEMS must be installed and operational before testing under this subsection. Verification of operational status must, at a minimum, include completion of the initial monitor certification and the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device.(6) Initial compliance with §117.2010 of this title for units operating with CEMS or PEMS must be demonstrated after monitor certification testing using the NOX CEMS or PEMS.(7) For units not operating with CEMS or PEMS, the following apply.(A) Retesting as specified in paragraphs (1) - (4) of this subsection is required within 60 days after any modification that could reasonably be expected to increase the NOX emission rate.(B) Retesting as specified in paragraphs (1) - (4) of this subsection may be conducted at the discretion of the owner or operator after any modification that could reasonably be expected to decrease the NOX emission rate, including, but not limited to, installation of post-combustion controls, low-NOX burners, low excess air operation, staged combustion (for example, overfire air), flue gas recirculation, and fuel-lean and conventional (fuel-rich) reburn.(C) The NOX emission rate determined by the retesting must establish a new emission factor to be used to calculate actual emissions from the date of the retesting forward. Until the date of the retesting, the previously determined emission factor must be used to calculate actual emissions for compliance with Chapter 101, Subchapter H, Division 3 of this title.(8) Testing must be performed in accordance with the schedule specified in §117.9200 of this title.(9) All test reports must be submitted to the executive director for review and approval within 60 days after completion of the testing.(f) Emission allowances.(1) For sources that are subject to Chapter 101, Subchapter H, Division 3 of this title, the NOX testing and monitoring data of subsections (a) - (e) of this section, together with the level of activity, as defined in §101.350 of this title (relating to Definitions), must be used to establish the emission factor calculating actual emissions for compliance with Chapter 101, Subchapter H, Division 3 of this title.(2) The emission factor in subsection (e)(7) of this section or paragraph (1) of this subsection is multiplied by the unit's level of activity to determine the unit's actual emissions for compliance with Chapter 101, Subchapter H, Division 3 of this title.(g) Run time meters. The owner or operator of any stationary diesel engine claimed exempt using the exemption of §117.2003(a)(2)(E), (H), or (I) of this title shall record the operating time with an elapsed run time meter. Any run time meter installed on or after October 1, 2001, must be non-resettable.</content><note type="source"><p>Source Note: The provisions of this §117.2035 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective March 4, 2009, 34 TexReg 1445; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scD/s117.2045"><num value="117.2045">§117.2045</num><heading>Recordkeeping and Reporting Requirements</heading><content>(a) Recordkeeping. The owner or operator of a unit subject to §117.2010 of this title (relating to Emission Specifications) or claimed exempt under §117.2003(b) of this title (relating to Exemptions) shall maintain written or electronic records of the data specified in this subsection. Such records must be kept for a period of at least five years and must be made available upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction. The records must include:(1) records of annual fuel usage;(2) for each unit using a continuous emission monitoring system (CEMS) or predictive emission monitoring system (PEMS) in accordance with §117.2035(c) of this title (relating to Monitoring and Testing Requirements), monitoring records of:(A) hourly emissions and fuel usage (or stack exhaust flow) for units complying with an emission specification enforced on a block one-hour average; and(B) daily emissions and fuel usage (or stack exhaust flow) for units complying with an emission specification enforced on a rolling 30-day average. Emissions must be recorded in units of:(i) pounds per million British thermal units heat input; and(ii) pounds or tons per day;(3) for each stationary internal combustion engine subject to §117.2010 of this title, records of:(A) emissions measurements required by §117.2030(b)(5) of this title (relating to Operating Requirements); and(B) catalytic converter, air-fuel ratio controller, or other emissions-related control system maintenance, including the date and nature of corrective actions taken;(4) records of carbon monoxide measurements specified in §117.2030(b)(5) of this title;(5) records of the results of initial certification testing, evaluations, calibrations, checks, adjustments, and maintenance of CEMS, PEMS, or steam-to-fuel or water-to-fuel ratio monitoring systems;(6) records of the results of performance testing, including the testing conducted in accordance with §117.2035(e) of this title; and(7) records of daily average horsepower and total daily hours of operation for each stationary reciprocating internal combustion engine or stationary gas turbine that the owner or operator elects to use the alternative monitoring system allowed under §117.2035(a)(2)(G) of this title. Units that are monitored according to §117.2035(a)(2)(G) of this title are not required to keep records of annual fuel usage as required by paragraph (1) of this subsection.(b) Records for exempt engines. Written records of the number of hours of operation for each day's operation must be made for each engine claimed exempt under §117.2003(a)(2)(E), (H), or (I) of this title or §117.2030(b)(5) of this title. In addition, for each engine claimed exempt under §117.2003(a)(2)(E) of this title, written records must be maintained of the purpose of engine operation and, if operation was for an emergency situation, identification of the type of emergency situation and the start and end times and date(s) of the emergency situation. The records must be maintained for at least five years and must be made available upon request to representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution control agency having jurisdiction.(c) Records of operation for testing and maintenance. The owner or operator of each stationary diesel or dual-fuel engine shall maintain the following records for at least five years and make them available upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction:(1) date(s) of operation;(2) start and end times of operation;(3) identification of the engine; and(4) total hours of operation for each month and for the most recent 12 consecutive months.</content><note type="source"><p>Source Note: The provisions of this §117.2045 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective March 4, 2009, 34 TexReg 1445.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scD/s117.2100"><num value="117.2100">§117.2100</num><heading>Applicability</heading><content>This division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Minor Sources) applies in the Dallas-Fort Worth eight-hour ozone nonattainment area to stationary, reciprocating internal combustion engines at any stationary source of nitrogen oxides (NOX ) that is not a major source of NOX .</content><note type="source"><p>Source Note: The provisions of this §117.2100 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scD/s117.2103"><num value="117.2103">§117.2103</num><heading>Exemptions</heading><content>This division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Minor Sources) does not apply to the following stationary engines, except as specified in §§117.2130(c), 117.2135(e), and 117.2145(b) and (c) of this title (relating to Operating Requirements; Monitoring, Notification, and Testing Requirements; and Recordkeeping and Reporting Requirements):(1) engines with a horsepower (hp) rating of less than 50 hp;(2) engines used in research and testing;(3) engines used for purposes of performance verification and testing;(4) engines used solely to power other engines or gas turbines during startups;(5) engines operated exclusively in emergency situations, except that operation for testing or maintenance purposes is allowed for up to 100 hours per year, based on a rolling 12-month average. Any new, modified, reconstructed, or relocated stationary diesel engine placed into service on or after June 1, 2007, is ineligible for this exemption. For the purposes of this subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title (relating to General Definitions) and 40 Code of Federal Regulations (CFR) §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title (relating to Definitions), a used engine from anywhere outside that account;(6) engines used in response to and during the existence of any officially declared disaster or state of emergency;(7) engines used directly and exclusively by the owner or operator for agricultural operations necessary for the growing of crops or raising of fowl or animals;(8) diesel engines placed into service before June 1, 2007, that:(A) operate less than 100 hours per year, based on a rolling 12-month average; and(B) have not been modified, reconstructed, or relocated on or after June 1, 2007. For the purposes of this clause, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title and 40 CFR §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title, a used engine from anywhere outside that account;(9) new, modified, reconstructed, or relocated stationary diesel engines placed into service on or after June 1, 2007, that:(A) operate less than 100 hours per year, based on a rolling 12-month average, in other than emergency situations; and(B) meet the corresponding emission standard for non-road engines listed in 40 CFR §89.112(a), Table 1 (October 23, 1998) and in effect at the time of installation, modification, reconstruction, or relocation. For the purposes of this subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title and 40 CFR §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title, a used engine from anywhere outside that account; and(10) new, modified, reconstructed, or relocated stationary diesel engines placed into service on or after June 1, 2007, that:(A) are used solely for product testing and personnel training;(B) operate less than 1,000 hours per year, on a rolling 12-month basis; and(C) meet the corresponding emission standard for non-road engines listed in 40 CFR §89.112(a), Table 1 (October 23, 1998) and in effect at the time of installation, modification, reconstruction, or relocation. For the purposes of this subparagraph, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title and 40 CFR §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title, a used engine from anywhere outside that account.</content><note type="source"><p>Source Note: The provisions of this §117.2103 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 2, 2013, 38 TexReg 2634.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scD/s117.2110"><num value="117.2110">§117.2110</num><heading>Emission Specifications for Eight-Hour Attainment Demonstration</heading><content>(a) The owner or operator of any source subject to this division (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Minor Sources) shall not allow the discharge into the atmosphere emissions of nitrogen oxides (NOX ) in excess of the following emission specifications.(1) Emission specifications for stationary, gas-fired, reciprocating internal combustion engines are as follows:(A) rich-burn engines:(i) fired on landfill gas, 0.60 grams per horsepower-hour (g/hp-hr); and(ii) all other rich-burn engines, 0.50 g/hp-hr; and(B) lean-burn engines:(i) placed into service before June 1, 2007, that have not been modified, reconstructed, or relocated on or after June 1, 2007, 0.70 g/hp-hr; and(ii) placed into service, modified, reconstructed, or relocated on or after June 1, 2007:(I) fired on landfill gas or other biogas, 0.60 g/hp-hr; and(II) all other lean-burn engines, 0.50 g/hp-hr.(2) The emission specification for stationary, dual-fuel, reciprocating internal combustion engines is 5.83 g/hp-hr.(3) Emission specifications for stationary, diesel, reciprocating internal combustion engines are as follows:(A) placed into service before March 1, 2009, that have not been modified, reconstructed, or relocated on or after March 1, 2009, the lower of 11.0 g/hp-hr or the emission rate established by testing, monitoring, manufacturer's guarantee, or manufacturer's other data; and(B) for engines not subject to subparagraph (A) of this paragraph:(i) with a horsepower (hp) rating of 50 hp or greater, but less than 100 hp, that are installed, modified, reconstructed, or relocated on or after March 1, 2009, 3.3 g/hp-hr;(ii) with a horsepower rating of 100 hp or greater, but less than or equal to 750 hp, that are installed, modified, reconstructed, or relocated on or after March 1, 2009, 2.8 g/hp-hr; and(iii) with a horsepower rating of 750 hp or greater that are installed, modified, reconstructed, or relocated on or after March 1, 2009, 4.5 g/hp-hr.(4) As an alternative to the emission specifications in paragraphs (1) - (3) of this subsection for units with an annual capacity factor of 0.0383 or less, 0.060 pound per million British thermal units (lb/MMBtu) heat input. For units placed into service on or before December 31, 2000, the annual capacity factor as of December 31, 2000, must be used to determine eligibility for the alternative emission specification of this paragraph. For units placed into service after December 31, 2000, a 12-month rolling average must be used to determine the annual capacity factor.(5) For the purposes of this subsection, the terms "modification" and "reconstruction" have the meanings defined in §116.10 of this title (relating to General Definitions) and 40 Code of Federal Regulations §60.15 (December 16, 1975), respectively, and the term "relocated" means to newly install at an account, as defined in §101.1 of this title (relating to Definitions), a used engine from anywhere outside that account.(b) The averaging time for the NOX emission specifications of subsection (a) of this section is as follows:(1) if the unit is operated with a NOX continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) under §117.2135(c) of this title (relating to Monitoring, Notification, and Testing Requirements), either as:(A) a rolling 30-day average period, in the units of the applicable standard;(B) a block one-hour average, in the units of the applicable standard, or alternatively;(C) a block one-hour average, in pounds per hour, for boilers, calculated as the product of the boiler's maximum rated capacity and its applicable limit in lb/MMBtu; or(2) if the unit is not operated with a NOX CEMS or PEMS under §117.2135(c) of this title, a block one-hour average, in the units of the applicable standard. (c) The maximum rated capacity used to determine the applicability of the emission specifications in subsection (a) of this section must be the greater of the following:(1) the maximum rated capacity as of December 31, 2000; or(2) the maximum rated capacity after December 31, 2000.(d) A unit's classification is determined by the most specific classification applicable to the unit as of December 31, 2000. For example, a unit that is classified as a stationary gas-fired engine as of December 31, 2000, but subsequently is authorized to operate as a dual-fuel engine, must be classified as a stationary gas-fired engine for the purposes of this chapter.(e) Changes after December 31, 2000, to a unit subject to an emission specification in subsection (a) of this section (ESAD unit) that result in increased NOX emissions from a unit not subject to an emission specification in subsection (a) of this section (non-ESAD unit), such as redirecting one or more fuel or waste streams containing chemical-bound nitrogen to an incinerator or a flare, is only allowed if:(1) the increase in NOX emissions at the non-ESAD unit is determined using a CEMS or PEMS that meets the requirements of §117.2135(c) of this title, or through stack testing that meets the requirements of §117.2135(f) of this title; and(2) emission credits equal to the increase in NOX emissions at the non-ESAD unit are obtained and used in accordance with §117.9800 of this title (relating to Use of Emission Credits for Compliance).(f) A source that met the definition of major source on December 31, 2000, is always classified as a major source for purposes of this chapter. A source that did not meet the definition of major source (i.e., was a minor source, or did not yet exist) on December 31, 2000, but becomes a major source at any time after December 31, 2000, is from that time forward always classified as a major source for purposes of this chapter.(g) The availability under subsection (a)(4) of this section of an emission specification for units with an annual capacity factor of 0.0383 or less is based on the unit's status on December 31, 2000. Reduced operation after December 31, 2000, cannot be used to qualify for a more lenient emission specification under subsection (a)(4) of this section than would otherwise apply to the unit.(h) No person shall allow the discharge into the atmosphere from any unit subject to NOX emission specifications in subsection (a) of this section, emissions in excess of the following, except as provided in §117.2125 of this title (relating to Alternative Case Specific Specifications):(1) carbon monoxide (CO), 400 ppmv at 3.0% oxygen (O2 ), dry basis (or alternatively, 3.0 g/hp-hr for stationary internal combustion engines):(A) on a rolling 24-hour averaging period, for units equipped with CEMS or PEMS for CO; and(B) on a one-hour average, for units not equipped with CEMS or PEMS for CO; and(2) for units that inject urea or ammonia into the exhaust stream for NOX control, ammonia emissions of 10 ppmv at 15% O2 , dry, for gas-fired lean-burn engines and diesel engines; and 3.0% O2 , dry, for all other units, based on:(A) a block one-hour averaging period for units not equipped with a CEMS or PEMS for ammonia; or(B) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for ammonia.(i) An owner or operator may use emission reduction credits as specified in §117.9800 of this title to comply with the NOX emission specifications of this section.</content><note type="source"><p>Source Note: The provisions of this §117.2110 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 15, 2011, 36 TexReg 2855; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scD/s117.2125"><num value="117.2125">§117.2125</num><heading>Alternative Case Specific Specifications</heading><content>(a) Where an owner or operator can demonstrate that an affected unit cannot attain the carbon monoxide (CO) or ammonia specifications of §117.2110(h) of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration), the executive director may approve emission specifications different from the CO or ammonia specifications in §117.2110(h) of this title for that unit. The executive director:(1) shall consider on a case-by-case basis the technological and economic circumstances of the individual unit;(2) shall determine that such specifications are the result of the lowest emission limitation the unit is capable of meeting after the application of controls to meet the nitrogen oxides emission specifications of §117.2110 of this title; and(3) in determining whether to approve alternative emission specifications, may take into consideration the ability of the plant where the unit is located to meet emission specifications through system-wide averaging at maximum capacity.(b) Any owner or operator affected by the executive director's decision to deny an alternative case specific emission specification may file a motion to overturn the executive director's decision. The requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) apply.</content><note type="source"><p>Source Note: The provisions of this §117.2125 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scD/s117.2130"><num value="117.2130">§117.2130</num><heading>Operating Requirements</heading><content>(a) The owner or operator shall operate any unit subject to the emission specifications of §117.2110 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) in compliance with those specifications.(b) All units subject to §117.2110 of this title must be operated so as to minimize nitrogen oxides (NOX ) emissions, consistent with the emission control techniques selected, over the unit's operating or load range during normal operations. Such operational requirements include the following.(1) Each unit controlled with post-combustion control techniques must be operated such that the reducing agent injection rate is maintained to limit NOX concentrations to less than or equal to the NOX concentrations achieved at maximum rated capacity.(2) Each stationary internal combustion engine controlled with nonselective catalytic reduction must be equipped with an automatic air-fuel ratio (AFR) controller that operates on exhaust O2 or CO control and maintains AFR in the range required to meet the engine's applicable emission specifications.(3) Each stationary internal combustion engine must be checked for proper operation according to §117.8140(b) of the title (relating to Emission Monitoring for Engines).(c) No person shall start or operate any stationary diesel or dual-fuel engine for testing or maintenance of the engine between the hours of 6:00 a.m. and noon, except:(1) for specific manufacturer's recommended testing requiring a run of over 18 consecutive hours;(2) to verify reliability of emergency equipment (e.g., emergency generators or pumps) immediately after unforeseen repairs. Routine maintenance such as an oil change is not considered to be an unforeseen repair; or(3) firewater pumps for emergency response training conducted in the months of April through October.</content><note type="source"><p>Source Note: The provisions of this §117.2130 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 2, 2013, 38 TexReg 2634.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scD/s117.2135"><num value="117.2135">§117.2135</num><heading>Monitoring, Notification, and Testing Requirements</heading><content>(a) Oxygen (O2 ) monitors. If the owner or operator installs an O2 monitor, the criteria in §117.8100(a) of this title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources) should be considered the appropriate guidance for the location and calibration of the monitor.(b) Nitrogen oxides (NOX ) monitors. If the owner or operator installs a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS), the CEMS or PEMS must meet the requirements of §117.8100(a) or (b) of this title. If a PEMS is used, the PEMS must predict the pollution emissions in the units of the applicable emission limitations of this division.(c) Monitor installation schedule. Installation of monitors must be performed in accordance with the schedule specified in §117.9210 of this title (relating to Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Minor Sources).(d) Testing requirements. The owner or operator of any unit subject to §117.2110 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) shall comply with the following testing requirements.(1) Each unit must be tested for NOX , carbon monoxide (CO), and O2 emissions. (2) One of the ammonia monitoring procedures specified in §117.8130 of this title (relating to Ammonia Monitoring) must be used to demonstrate compliance with the ammonia emission specification of §117.2110(h)(2) of this title for units that inject urea or ammonia into the exhaust stream for NOX control. This paragraph does not apply to stationary diesel engines equipped with selective catalytic reduction (SCR) systems that meet all of the following criteria.(A) The SCR system must use a reductant other than the engine's fuel. (B) The SCR system must operate with a diagnostic system that monitors reductant quality and tank levels. (C) The diagnostic system must alert owners or operators to the need to refill the reductant tank before it is empty or to replace the reductant if the reductant does not meet applicable concentration specifications. (D) If the SCR system uses input from an exhaust NOX sensor (or other sensor) to alert owners or operators when the reductant quality is inadequate, the reductant quality does not need to be monitored separately by the diagnostic system. (E) The reductant tank level must be monitored in accordance with the manufacturer's design to demonstrate compliance with this paragraph. (F) The method of alerting an owner or operator must be a visual or audible alarm.(3) For units not equipped with CEMS or PEMS, all testing must be conducted according to §117.8000 of this title (relating to Stack Testing Requirements). In lieu of the test methods specified in §117.8000 of this title, the owner or operator may use American Society for Testing and Materials (ASTM) D6522-00 to perform the NOX , CO, and O2 testing required by this subsection on natural gas-fired reciprocating engines. If the owner or operator elects to use ASTM D6522-00 for the testing requirements, the report must contain the information specified in §117.8010 of this title (relating to Compliance Stack Test Reports).(4) Test results must be reported in the units of the applicable emission specifications and averaging periods. If compliance testing is based on 40 Code of Federal Regulations Part 60, Appendix A reference methods, the report must contain the information specified in §117.8010 of this title.(5) For units equipped with CEMS or PEMS, the CEMS or PEMS must be installed and operational before testing under this subsection. Verification of operational status must, at a minimum, include completion of the initial monitor certification and the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device.(6) Initial compliance with the emission specifications of §117.2110 of this title for units operating with CEMS or PEMS must be demonstrated after monitor certification testing using the NOX CEMS or PEMS.(7) For units not operating with CEMS or PEMS, the following apply.(A) Retesting as specified in paragraphs (1) - (4) of this subsection is required within 60 days after any modification that could reasonably be expected to increase the NOX emission rate.(B) Retesting as specified in paragraphs (1) - (4) of this subsection may be conducted at the discretion of the owner or operator after any modification that could reasonably be expected to decrease the NOX emission rate, including, but not limited to, installation of post-combustion controls, low-NOX burners, low excess air operation, staged combustion (for example, overfire air), flue gas recirculation, and fuel-lean and conventional (fuel-rich) reburn.(C) Stationary, reciprocating internal combustion engines not equipped with CEMS or PEMS must be periodically tested for NOX and CO emissions as specified in §117.8140(a) of this title (relating to Emission Monitoring for Engines).(8) Testing must be performed in accordance with the schedule specified in §117.9210 of this title.(9) All test reports must be submitted to the executive director for review and approval within 60 days after completion of the testing.(10) The owner or operator of an affected unit in the Dallas-Fort Worth eight-hour ozone nonattainment area must submit written notification of any CEMS or PEMS relative accuracy test audit (RATA) or testing required under this section to the appropriate regional office and any local air pollution control agency having jurisdiction at least 15 days in advance of the date of RATA or testing.(e) Run time meters. The owner or operator of any stationary diesel engine claimed exempt using the exemption of §117.2103(5), (8), (9), or (10) of this title (relating to Exemptions) shall record the operating time with a non-resettable elapsed run time meter.</content><note type="source"><p>Source Note: The provisions of this §117.2135 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 2, 2013, 38 TexReg 2634; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scD/s117.2145"><num value="117.2145">§117.2145</num><heading>Recordkeeping and Reporting Requirements</heading><content>(a) Recordkeeping. The owner or operator of a unit subject to §117.2110 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) shall maintain written or electronic records of the data specified in this subsection. Such records must be kept for a period of at least five years and must be made available upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction. The records must include:(1) for each unit using a continuous emission monitoring system (CEMS) or predictive emission monitoring system (PEMS) in accordance with §117.2135(b) of this title (relating to Monitoring, Notification, and Testing Requirements) monitoring records of:(A) hourly emissions for units complying with an emission specification enforced on a block one-hour average; and(B) daily emissions for units complying with an emission specification enforced on a rolling 30-day average. Emissions must be recorded in units of:(i) pounds per million British thermal units (MMBtu) heat input; and(ii) pounds or tons per day;(2) for each stationary internal combustion engine subject to §117.2110 of this title, records of:(A) emissions measurements required by §117.2130(b)(3) of this title (relating to Operating Requirements); and(B) catalytic converter, air-fuel ratio controller, or other emissions-related control system maintenance, including the date and nature of corrective actions taken;(3) records of carbon monoxide (CO) measurements specified in §117.2130(b)(3) of this title;(4) records of the results of initial certification testing, evaluations, calibrations, checks, adjustments, and maintenance of CEMS, PEMS, or steam-to-fuel or water-to-fuel ratio monitoring systems; and(5) records of the results of performance testing, including the testing conducted in accordance with §117.2135(d) of this title.(b) Records for exempt engines. The following records must be maintained for at least five years and must be made available upon request to representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution control agency having jurisdiction.(1) Written records of the number of hours of operation for each day's operation must be maintained for each engine claimed exempt under §117.2103(5), (8), (9), or (10) of this title (relating to Exemptions) or §117.2130(b)(3) of this title.(2) For each engine claimed exempt under §117.2103(5) of this title, written records must be maintained of the purpose of engine operation and, if operation was for an emergency situation, identification of the type of emergency situation and the start and end times and date(s) of the emergency situation.(3) For each engine claimed exempt under §117.2103(10) of this title, records must be maintained of manufacturer's specifications or test data sufficient to demonstrate compliance with the emission standard specified in §117.2103(10)(C) of this title.(c) Records of operation for testing and maintenance. The owner or operator of each stationary diesel or dual-fuel engine shall maintain the following records for at least five years and make them available upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction:(1) date(s) of operation;(2) start and end times of operation;(3) identification of the engine; and(4) total hours of operation for each month and for the most recent 12 consecutive months.</content><note type="source"><p>Source Note: The provisions of this §117.2145 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 2, 2013, 38 TexReg 2634.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c117/scE"><num value="E">SUBCHAPTER E</num><heading>MULTI-REGION COMBUSTION CONTROL</heading><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3000"><num value="117.3000">§117.3000</num><heading>Applicability</heading><content>(a) The provisions of this division (relating to Utility Electric Generation in East and Central Texas) apply to each utility electric power boiler and stationary gas turbine (including duct burners used in turbine exhaust ducts) that:(1) generates electric energy for compensation;(2) is owned or operated by an electric cooperative, independent power producer, municipality, river authority, or public utility, or any of its successors;(3) was placed into service before December 31, 1995; and(4) is located in Atascosa, Bastrop, Bexar, Brazos, Calhoun, Cherokee, Fannin, Fayette, Freestone, Goliad, Gregg, Grimes, Harrison, Henderson, Hood, Hunt, Lamar, Limestone, Marion, McLennan, Milam, Morris, Nueces, Parker, Red River, Robertson, Rusk, Titus, Travis, Victoria, or Wharton County.(b) The provisions of §117.3005 of this title (relating to Gas-Fired Steam Generation) also apply in Palo Pinto County.(c) This division no longer applies in Bexar County after December 31, 2024.</content><note type="source"><p>Source Note: The provisions of this §117.3000 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3003"><num value="117.3003">§117.3003</num><heading>Exemptions</heading><content>The provisions of this division (relating to Utility Electric Generation in East and Central Texas), except as specified in §117.3040 and §117.3045 of this title (relating to Continuous Demonstration of Compliance; and Notification, Recordkeeping, and Reporting Requirements), do not apply to: (1) utility electric power boilers or stationary gas turbines if the annual heat input does not exceed 2.2 (1011 ) British thermal units per year, averaged over the three most recent calendar years; (2) stationary gas turbines and auxiliary steam boilers that are: (A) used solely to power other units during startups; or (B) demonstrated to operate no more than an average of 10% of the hours of the year, averaged over the three most recent calendar years, and no more than 20% of the hours in a single calendar year; and (3) each unit that generates electric energy primarily for internal use but that, averaged over the three most recent calendar years, sold less than one-third of its potential electrical output capacity to a utility power distribution system.</content><note type="source"><p>Source Note: The provisions of this §117.3003 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3005"><num value="117.3005">§117.3005</num><heading>Gas-Fired Steam Generation</heading><content>(a) Subsections (b), (c), and (d) of this section (emission specifications adopted by the Texas Air Control Board in 1972) apply in Fannin, Hood, and Palo Pinto Counties. This section no longer applies in Fannin and Hood Counties after the applicable final compliance date specified in §117.9300 of this title (relating to Compliance Schedule for Utility Electric Generation in East and Central Texas). (b) No person shall allow emissions of nitrogen oxides (NOX ), calculated as nitrogen dioxide (NO 2), from any "opposed-fired" steam generating unit of more than 600,000 pounds per hour (lb/hr) maximum continuous steam capacity to exceed 0.7 pound per million British thermal units (lb/MMBtu) heat input, maximum two-hour average, at maximum steam capacity. An "opposed-fired" steam generating unit is defined as a unit having burners installed on two opposite vertical firebox surfaces. (c) No person shall allow emissions of NO X , calculated as NO2, from any "front-fired" steam generating unit of more than 600,000 lb/hr maximum continuous steam capacity to exceed 0.5 lb/MMBtu heat input, maximum two-hour average, at maximum steam capacity. A "front-fired" steam generating unit is defined as a unit having all burners installed in a geometric array on one vertical firebox surface. (d) No person shall allow emissions of NO X , calculated as NO2, from any "tangential-fired" steam generating unit of more than 600,000 lb/hr maximum continuous steam capacity to exceed 0.25 lb/MMBtu heat input, maximum two-hour average, at maximum steam capacity. A "tangential-fired" steam generating unit is defined as a unit having burners installed on all corners of the unit at various elevations. (e) Existing gas-fired steam generating units of more than 600,000 lb/hr, but less than 1,100,000 lb/hr, maximum continuous steam capacity are exempt from the provisions of this section, provided the total steam generated from the unit during any one calendar year does not exceed 30% of the product of the maximum continuous steam capacity of the unit times the number of hours in a year. Written records of the amount of steam generated for each day's operation must be made on a daily basis and maintained for at least three years from the date of each entry. Such records must be made available upon request to representatives of the executive director, United States Environmental Protection Agency, or any local air pollution control agency having jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §117.3005 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3010"><num value="117.3010">§117.3010</num><heading>Emission Specifications</heading><content>In accordance with the compliance schedule in §117.9300 of this title (relating to Compliance Schedule for Utility Electric Generation in East and Central Texas), the owner or operator of each utility electric power boiler or stationary gas turbine (including duct burners used in turbine exhaust ducts) shall: (1) ensure that emissions of nitrogen oxides (NO X ) do not exceed the following rates, in pounds per million British thermal units heat input on an annual (calendar year) average: (A) electric power boilers: (i) gas-fired, 0.14; and (ii) coal-fired, 0.165; (B) stationary gas turbines (including duct burners used in turbine exhaust ducts): (i) subject to Texas Utilities Code (TUC), §39.264 (except units designated in accordance with TUC, §39.264(i)), 0.14; (ii) not subject to TUC, §39.264, 0.15 (or alternatively, 42 parts per million by volume (ppmv) NOX , adjusted to 15% oxygen (O2), dry basis); and (iii) units designated in accordance with TUC, §39.264(i), 0.15 (or alternatively, 42 ppmv NOX , adjusted to 15% O2, dry basis); and (2) ensure that for units that inject urea or ammonia into the exhaust stream for NOX control, ammonia emissions do not exceed 10 ppmv at 3.0% O2, dry, for boilers and 15% O2, dry, for stationary gas turbines (including duct burners used in turbine exhaust ducts) from any unit subject to the NOX emission specifications in paragraph (1) of this section, based on: (A) a block one-hour averaging period for units not equipped with a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) for ammonia; or (B) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for ammonia.</content><note type="source"><p>Source Note: The provisions of this §117.3010 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3020"><num value="117.3020">§117.3020</num><heading>System Cap</heading><content>(a) An owner or operator may achieve compliance with the nitrogen oxides (NOX ) emission specifications of §117.3010 of this title (relating to Emission Specifications) by achieving equivalent NOX emission reductions obtained by compliance with a system cap emission limitation in accordance with the requirements of this section.(b) Each unit within an electric power generating system, as defined in §117.10 of this title (relating to Definitions), that would otherwise be subject to the NOX emission specifications of §117.3010 of this title must be included in the system cap.(c) The annual average emission cap must be calculated using the following equation.Attached Graphic(d) The NOX emissions monitoring required by §117.3040 of this title (relating to Continuous Demonstration of Compliance) for each unit in the system cap must be used to demonstrate continuous compliance with the system cap.(e) For each operating unit, the owner or operator shall use one of the following methods to provide substitute emissions compliance data during periods when the NOX monitor is off-line:(1) if the NOX monitor is a continuous emissions monitoring system (CEMS):(A) subject to 40 Code of Federal Regulations (CFR) Part 75, use the missing data procedures specified in 40 CFR Part 75, Subpart D (Missing Data Substitution Procedures); or(B) subject to 40 CFR Part 75, Appendix E, use the missing data procedures specified in 40 CFR Part 75, Appendix E, §2.5 (Missing Data Procedures);(2) use Appendix E monitoring in accordance with §117.3040(e) of this title;(3) if the NOX monitor is a predictive emissions monitoring system (PEMS):(A) use the methods specified in 40 CFR Part 75, Subpart D; or(B) use calculations in accordance with §117.8110(b) of this title (relating to Emission Monitoring System Requirements for Utility Electric Generation Sources); or(4) use the maximum emission rate as measured by the testing conducted in accordance with §117.3035(d) of this title (relating to Initial Demonstration of Compliance).(f) The owner or operator of any unit subject to a system cap shall maintain daily records indicating the NOX emissions and fuel usage from each unit and summations of total NOX emissions and fuel usage for all units under the system cap on a daily basis. Records must also be retained in accordance with §117.3045 of this title (relating to Notification, Recordkeeping, and Reporting Requirements).(g) The owner or operator of any unit subject to a system cap shall submit annual reports for the monitoring systems in accordance with §117.3045 of this title. The owner or operator shall also report any exceedance of the system cap emission limit in the annual report and shall include an analysis of the cause for the exceedance with appropriate data to demonstrate the amount of emissions in excess of the applicable limit and the necessary corrective actions taken by the company to assure future compliance.(h) The owner or operator of any unit subject to a system cap shall demonstrate initial compliance with the system cap in accordance with the schedule specified in §117.9300 of this title (relating to Compliance Schedule for Utility Electric Generation in East and Central Texas).(i) A unit that is permanently retired or decommissioned and rendered inoperable may be included in the system cap emission limit, provided that the permanent shutdown occurred on or after January 1, 1999. The system cap emission limit is calculated in accordance with subsection (b) of this section.(j) Emission reductions from shutdowns or curtailments that have been used for netting or offset purposes under the requirements of Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) may not be included in the baseline for establishing the cap.(k) For the purposes of determining compliance with the system cap emission limit, the contribution of each affected unit that is operating during a startup, shutdown, or emissions event as defined in §101.1 of this title (relating to Definitions) must be calculated from the NOX emission rate measured by the NOX monitor, if operating properly. If the NOX monitor is not operating properly, the substitute data procedures identified in subsection (e) of this section must be used. If neither the NO X monitor nor the substitute data procedure are operating properly, the owner or operator shall use the maximum daily rate measured during the initial demonstration of compliance, unless the owner or operator provides data demonstrating to the satisfaction of the executive director and United States Environmental Protection Agency that actual emissions were less than maximum emissions during such periods.(l) An owner or operator of a source of NOX in any of the east and central Texas attainment counties listed in §117.3000(a)(4) of this title (relating to Applicability) who is participating in the system cap under this section (relating to System Cap) may exceed their system cap provided that the owner or operator is complying with the requirements of Chapter 101, Subchapter H, Division 1 or 4 of this title (relating to Emission Credit Banking and Trading; and Discrete Emission Credit Banking and Trading).</content><note type="source"><p>Source Note: The provisions of this §117.3020 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective April 19, 2012, 37 TexReg 2655.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3025"><num value="117.3025">§117.3025</num><heading>Alternative Case Specific Specifications</heading><content>(a) Where a person can demonstrate that an affected unit cannot attain the ammonia specification of §117.3010(2) of this title (relating to Emission Specifications), the executive director may approve emission specifications different from the ammonia specification in §117.3010(2) of this title for that unit. The executive director:(1) shall consider on a case-by-case basis the technological and economic circumstances of the individual unit;(2) shall determine that such specifications are the result of the lowest emission limitation the unit is capable of meeting after the application of controls to meet the nitrogen oxides emission specifications of §117.3010 of this title; and(3) in determining whether to approve alternative emission specifications, may take into consideration the ability of the plant where the unit is located to meet emission specifications through system-wide averaging at maximum capacity.(b) Any owner or operator affected by the executive director's decision to deny an alternative case specific emission specification may file a motion to overturn the executive director's decision. The requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) apply.</content><note type="source"><p>Source Note: The provisions of this §117.3025 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3035"><num value="117.3035">§117.3035</num><heading>Initial Demonstration of Compliance</heading><content>(a) The owner or operator of all units that are subject to the emission specifications of §117.3010 of this title (relating to Emission Specifications) shall test the units as follows. (1) The units must be tested for nitrogen oxides (NO X ), carbon monoxide, and oxygen emissions. (2) Units that inject urea or ammonia into the exhaust stream for NOX control must be tested for ammonia emissions. (3) Testing must be performed in accordance with the schedule specified in §117.9300 of this title (relating to Compliance Schedule for Utility Electric Generation in East and Central Texas). (b) The tests required by subsection (a) of this section must be used for determination of initial compliance with the emission specifications of this division (relating to Utility Electric Generation in East and Central Texas). Test results must be reported in the units of the applicable emission specifications and averaging periods. If compliance testing is based on 40 Code of Federal Regulations, Part 60, Appendix A reference methods, the report must contain the information specified in §117.8010 of this title (relating to Compliance Stack Test Reports). (c) Continuous emissions monitoring systems (CEMS) or predictive emissions monitoring systems (PEMS) required by §117.3040 of this title (relating to Continuous Demonstration of Compliance) must be installed and operational before testing under subsection (a) of this section. Verification of operational status must, at a minimum, include completion of the initial monitor certification and the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device. (d) Initial compliance with the emission specifications of this division for units operating with CEMS or PEMS in accordance with §117.3040 of this title must be demonstrated after monitor certification testing using the NOX CEMS or PEMS as follows. To comply with the NOX emission specification in pounds per million British thermal units on an annual average, NO X emissions from a unit are monitored for each unit operating day in a calendar year, and the annual average emission rate is used to determine compliance with the NOX emission specification. The annual average emission rate is calculated as the average of all hourly emissions data recorded by the monitoring system during a calendar year.</content><note type="source"><p>Source Note: The provisions of this §117.3035 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3040"><num value="117.3040">§117.3040</num><heading>Continuous Demonstration of Compliance</heading><content>(a) Nitrogen oxides (NOX ) monitoring. The owner or operator of each unit subject to the emission specifications of this division (relating to Utility Electric Generation in East and Central Texas) shall install, calibrate, maintain, and operate a continuous emissions monitoring system (CEMS), predictive emissions monitoring system (PEMS), or other system specified in this section to measure NO X on an individual basis. (b) Carbon monoxide (CO) monitoring. If the owner or operator chooses to monitor CO exhaust emissions from a unit subject to the emission specifications of this division, the methods specified in §117.8120 of this title (relating to Carbon Monoxide (CO) Monitoring) should be considered appropriate guidance for determining CO emissions. (c) Ammonia monitoring. For units that inject urea or ammonia into the exhaust stream for NOX control, one of the ammonia monitoring procedures specified in §117.8130 of this title (relating to Ammonia Monitoring) must be used to demonstrate compliance with the ammonia emission specification of §117.3010(2) of this title (relating to Emission Specifications). (d) CEMS requirements. (1) Any CEMS required by this section must be installed, calibrated, maintained, and operated in accordance with 40 Code of Federal Regulations (CFR) Part 75 or Part 60, as applicable. (2) One CEMS may be shared among units, provided: (A) the exhaust stream of each unit is analyzed separately; and (B) the CEMS meets the applicable certification requirements of paragraph (1) of this subsection for each exhaust stream. (3) As an alternative to paragraph (2) of this subsection, for units that are included in a system cap under §117.3020 of this title (relating to System Cap): (A) all bypass stacks must be monitored in order to quantify emissions directed through the bypass stack; (B) one CEMS may be shared among units, provided: (i) the exhaust stream of each stack is analyzed separately; and (ii) the CEMS meets the certification requirements of paragraph (1) of this subsection for each stack while the CEMS is operating in the time-shared mode; and (C) exhaust streams of units that vent to a common stack do not need to be analyzed separately. (e) Acid rain peaking units. The owner or operator of each peaking unit as defined in 40 CFR §72.2, may: (1) monitor operating parameters for each unit in accordance with 40 CFR Part 75, Appendix E, §1.1 or §1.2 and calculate NOX emission rates based on those procedures; or (2) use CEMS or PEMS in accordance with this section to monitor NOX emission rates. (f) PEMS requirements. The owner or operator of any PEMS used to meet a pollutant monitoring requirement of this section shall comply with the following. The required PEMS and fuel flow meters must be used to demonstrate continuous compliance with the emission specifications of §117.3010 of this title. (1) The PEMS must predict the pollutant emissions in the units of the applicable emission specifications of this division. (2) The PEMS must meet the requirements of §117.8110(b) of this title (relating to Emission Monitoring System Requirements for Utility Electric Generation Sources). (g) Gas turbine monitoring. The owner or operator of each stationary gas turbine subject to the emission specifications of §117.3010 of this title, instead of monitoring emissions in accordance with the monitoring requirements of 40 CFR Part 75, may comply with the following monitoring requirements: (1) for stationary gas turbines rated less than 30 megawatt (MW) or peaking gas turbines (as defined in §117.10 of this title (relating to Definitions)) that use steam or water injection to comply with the emission specification of §117.3010(1)(B) of this title: (A) install, calibrate, maintain, and operate a CEMS or PEMS in compliance with this section; or (B) for units that are not included in a system cap under §117.3020 of this title, install, calibrate, maintain, and operate a continuous monitoring system to monitor and record the average hourly fuel and steam or water consumption. The system must be accurate to within ± 5.0%. The steam-to-fuel or water-to-fuel ratio monitoring data must be used for demonstrating continuous compliance with the emission specification of §117.3010(1)(B) of this title; and (2) for gas turbines not subject to paragraph (1) of this subsection, install, calibrate, maintain, and operate a CEMS or PEMS in compliance with this section. (h) Totalizing fuel flow meters. The owner or operator of units listed in this subsection shall install, calibrate, maintain, and operate totalizing fuel flow meters to individually and continuously measure the gas and liquid fuel usage. A computer that collects, sums, and stores electronic data from continuous fuel flow meters is an acceptable totalizer. The units are: (1) any unit subject to the emission specifications of this division; (2) any stationary gas turbine with an MW rating greater than or equal to 1.0 MW operated more than an average of 10% of the hours of the year, averaged over the three most recent calendar years, or more than 20% of the hours in a single calendar year; and (3) any unit claimed exempt from the emission specifications of this division using the exemption of §117.3003(1) of this title (relating to Exemptions). (i) Run time meters. The owner or operator of any stationary gas turbine using the exemption of §117.3003(2) of this title shall record the operating time with an elapsed run time meter approved by the executive director. (j) Loss of exemption. The owner or operator of any unit claimed exempt from the emission specifications of this division using the exemptions of §117.3003 of this title, shall notify the executive director within seven days if the applicable limit is exceeded. (1) If the limit is exceeded, the exemption from the emission specifications of §117.3010 of this title is permanently withdrawn. (2) Within 90 days after loss of the exemption, the owner or operator shall submit a compliance plan detailing a plan to meet the applicable compliance limit as soon as possible, but no later than 24 months after exceeding the limit. The plan must include a schedule of increments of progress for the installation of the required control equipment. (3) The schedule is subject to the review and approval of the executive director. (k) Data used for compliance. After the initial demonstration of compliance required by §117.3035 of this title (relating to Initial Demonstration of Compliance) the methods required in this section must be used to determine compliance with the emission specifications of this division. Compliance with the emission specifications may also be determined at the discretion of the executive director using any commission compliance method. (l) Enforcement of NOX limits. No unit subject to §117.3010 of this title may be operated at an emission rate higher than that allowed by the emission specifications of §117.3010 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.3040 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3045"><num value="117.3045">§117.3045</num><heading>Notification, Recordkeeping, and Reporting Requirements</heading><content>(a) Startup and shutdown records. For units subject to the startup and/or shutdown provisions of §101.222 of this title (relating to Demonstrations), hourly records must be made of startup and/or shutdown events and maintained for a period of at least two years. Records must be available for inspection by the executive director, United States Environmental Protection Agency, and any local air pollution control agency having jurisdiction upon request. These records must include, but are not limited to: type of fuel burned; quantity of each type fuel burned; gross and net energy production in megawatt-hours (MW-hr); and the date, time, and duration of the event. (b) Notification. The owner or operator of a unit subject to the emission specifications of this division (relating to Utility Electric Generation in East and Central Texas) shall submit notification to the executive director as follows: (1) verbal notification of the date of any initial demonstration of compliance testing conducted under §117.3035 of this title (relating to Initial Demonstration of Compliance) at least 15 days prior to such date followed by written notification within 15 days after testing is completed; and (2) verbal notification of the date of any continuous emissions monitoring systems (CEMS) or predictive emissions monitoring systems (PEMS) performance evaluation conducted under §117.3040 of this title (relating to Continuous Demonstration of Compliance) at least 15 days prior to such date followed by written notification within 15 days after testing is completed. (c) Reporting of test results. The owner or operator of an affected unit shall furnish the executive director and any local air pollution control agency having jurisdiction a copy of any initial demonstration of compliance testing conducted under §117.3035 of this title or any CEMS or PEMS performance evaluation conducted under §117.3040 of this title: (1) within 60 days after completion of such testing or evaluation; and (2) not later than the appropriate compliance schedule specified in §117.9300 of this title (relating to Compliance Schedule for Utility Electric Generation in East and Central Texas). (d) Annual reports. The owner or operator of a unit required to install a CEMS, PEMS, or steam-to-fuel or water-to-fuel ratio monitoring system under §117.3040 of this title shall report in writing to the executive director on an annual basis any exceedance of the applicable emission specifications in this division and the monitoring system performance. All reports must be postmarked or received by January 31 following the end of each calendar year. Written reports must include the following information: (1) the magnitude of excess emissions computed in accordance with 40 Code of Federal Regulations §60.13(h), any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the unit operating time during the reporting period. For stationary gas turbines using steam-to-fuel or water-to-fuel ratio monitoring to demonstrate compliance in accordance with §117.3040 of this title, excess emissions are computed as each one-hour period that the hourly steam-to-fuel or water-to-fuel ratio is less than the ratio determined to result in compliance during the initial demonstration of compliance test required by §117.3035 of this title; (2) specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the affected unit. The nature and cause of any malfunction (if known) and the corrective action taken or preventative measures adopted; (3) the date and time identifying each period that the continuous monitoring system was inoperative, except for zero and span checks and the nature of the system repairs or adjustments; (4) when no excess emissions have occurred or the continuous monitoring system has not been inoperative, repaired, or adjusted, such information must be stated in the report; and (5) if the total duration of excess emissions for the reporting period is less than 1.0% of the total unit operating time for the reporting period and the CEMS, PEMS, or steam-to-fuel or water-to-fuel ratio monitoring system downtime for the reporting period is less than 5.0% of the total unit operating time for the reporting period, only a summary report form (as outlined in the latest edition of the commission's Guidance for Preparation of Summary, Excess Emission, and Continuous Monitoring System Reports) must be submitted, unless otherwise requested by the executive director. If the total duration of excess emissions for the reporting period is greater than or equal to 1.0% of the total operating time for the reporting period or the CEMS or steam-to-fuel or water-to-fuel ratio monitoring system downtime for the reporting period is greater than or equal to 5.0% of the total operating time for the reporting period, a summary report and an excess emission report must both be submitted. (e) Recordkeeping. The owner or operator of a unit subject to the requirements of this division shall maintain records of the data specified in this subsection. Records must be kept for a period of at least five years and made available for inspection by the executive director, United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction upon request. Operating records for each unit must be recorded and maintained at a frequency equal to the applicable emission specification averaging period, or for units claimed exempt from the emission specifications based on low annual capacity factor, monthly. Records must include: (1) emission rates in units of the applicable standards; (2) gross energy production in MW-hr (not applicable to auxiliary steam boilers); (3) quantity and type of fuel burned; (4) the injection rate of reactant chemicals (if applicable); and (5) emission monitoring data in accordance with §117.3040 of this title, including: (A) the date, time, and duration of any malfunction in the operation of the monitoring system, except for zero and span checks, if applicable, and a description of system repairs and adjustments undertaken during each period; (B) the results of initial certification testing, evaluations, calibrations, checks, adjustments, and maintenance of CEMS, PEMS, or operating parameter monitoring systems; and (C) actual emissions or operating parameter measurements, as applicable; (6) the results of performance testing, including initial demonstration of compliance testing conducted in accordance with §117.3035 of this title; and (7) records of hours of operation.</content><note type="source"><p>Source Note: The provisions of this §117.3045 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3054"><num value="117.3054">§117.3054</num><heading>Final Control Plan Procedures</heading><content>(a) The owner or operator of units listed in §117.3000 of this title (relating to Applicability) shall submit a final control report to show compliance with the requirements of §117.3010 of this title (relating to Emission Specifications). The report must include: (1) the section under which nitrogen oxides (NO X ) compliance is being established for the units within the electric generating system, either: (A) §117.3010 of this title; or (B) §117.3020 of this title (relating to System Cap); (2) the methods of NOX control for each unit; (3) the emissions measured by testing required in §117.3035 of this title (relating to Initial Demonstration of Compliance); (4) the submittal date, and whether sent to the Austin or the regional office (or both), of any compliance stack test report or relative accuracy test audit report required by §117.3035 of this title that is not being submitted concurrently with the final compliance report; and (5) the specific rule citation for any unit with a claimed exemption from the emission specifications of §117.3010 of this title. (b) In addition to the requirements of subsection (a) of this section, the owner or operator of each source complying with §117.3020 of this title shall submit: (1) the calculations used to calculate the annual average system cap allowable emission rate; (2) a list containing, for each unit in the cap: (A) the average annual heat input Hi specified in §117.3020(c) of this title; (B) the method of monitoring emissions; and (C) the method of providing substitute emissions data when the NOX monitoring system is not providing valid data; and (3) an explanation of the basis of the value of H i . (c) The report must be submitted by the applicable date specified for final control plans in §117.9300 of this title (relating to Compliance Schedule for Utility Electric Generation in East and Central Texas). The plan must be updated with any emission compliance measurements submitted for units using a continuous emissions monitoring system or predictive emissions monitoring system and complying with the system cap annual average emission limit, according to the applicable schedule given in §117.9300 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.3054 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3056"><num value="117.3056">§117.3056</num><heading>Revision of Final Control Plan</heading><content>A revised final control plan may be submitted by the owner or operator, along with any required permit applications. Such a plan must adhere to the emission specifications and the final compliance dates of this division (relating to Utility Electric Generation in East and Central Texas). The revision of the final control plan is subject to the review and approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §117.3056 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3100"><num value="117.3100">§117.3100</num><heading>Applicability</heading><content>This division (relating to Cement Kilns) applies to each portland cement kiln in Bexar, Comal, Ellis, Hays, and McLennan Counties.</content><note type="source"><p>Source Note: The provisions of this §117.3100 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3101"><num value="117.3101">§117.3101</num><heading>Cement Kiln Definitions</heading><content>Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the commission, the terms used by the commission have the meanings commonly used in the field of air pollution control. In addition to the terms that are defined by the TCAA, the following terms, when used in this division (relating to Cement Kilns), have the following meanings, unless the context clearly indicates otherwise. Additional definitions for terms used in this division are found in §§3.2, 101.1, and 117.10 of this title (relating to Definitions). (1) Clinker--The product of a portland cement kiln from which finished cement is manufactured by milling and grinding. (2) Indirect-firing system--A system that reduces the amount of primary air used in a cement kiln by: (A) separating the powdered fuel from the air stream that carries the fuel from the drying/milling equipment; (B) storing the fuel briefly; and (C) using an independent, significantly smaller stream of hot primary air to blow the fuel to the burner. (3) Long dry kiln--A kiln that employs no preheating of the dry feed. The inlet feed to the kiln is dry. (4) Long wet kiln--A kiln that employs no preheating of the dry feed. The inlet feed to the kiln is a slurry. (5) Low-NOX burner--Either of the following: (A) for long wet kilns, combustion equipment designed to reduce flame turbulence, delay fuel/air mixing, and establish fuel-rich zones for initial combustion; or (B) a type of cement kiln burner that results in decreasing nitrogen oxides emissions and that has an indirect-firing system and a series of channels or orifices that: (i) allow for the adjustment of the volume, velocity, pressure, and direction of the air carrying the fuel (known as primary air) and the combustion air (known as secondary air) into the kiln; and (ii) impart high momentum and turbulence to the fuel stream to facilitate mixing of the fuel and secondary air. (6) Low-NOX precalciner--A process in which a portion of the fuel is injected near the raw material feed end of a preheater or precalciner kiln, resulting in a reducing atmosphere in the preheater or precalciner. (7) Mid-kiln firing--Secondary combustion in long dry or long wet kilns by injecting solid fuel at (or to) an intermediate point in the kiln using a specially-designed feed injection mechanism for the purpose of decreasing nitrogen oxides emissions through: (A) burning part of the fuel at a lower temperature; and (B) reducing conditions at the solid fuel injection point that may destroy some of the nitrogen oxides formed upstream in the kiln burning zone. (8) Portland cement--A hydraulic cement produced by pulverizing clinker consisting essentially of hydraulic calcium silicates, usually containing one or more of the forms of calcium sulfate as an interground addition. (9) Portland cement kiln--A system, including any solid, gaseous, or liquid fuel combustion equipment, used to calcine and fuse raw materials, including limestone and clay, to produce portland cement clinker. (10) Precalciner kiln--A kiln where the feed to the kiln system is preheated in cyclone chambers and utilizes a second burner to calcine material in a separate vessel attached to the preheater before the final fusion in a kiln that forms clinker. (11) Preheater kiln--A kiln where the feed to the kiln system is preheated in cyclone chambers before the final fusion in a kiln that forms clinker. (12) Secondary combustion--A system that employs a second combustion point in addition to the primary flame. This definition includes mid-kiln firing in long dry and long wet kilns, and also additional combustion at the raw material feed end of the kiln in preheater-precalciner kilns.</content><note type="source"><p>Source Note: The provisions of this §117.3101 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3103"><num value="117.3103">§117.3103</num><heading>Exemptions</heading><content>(a) Portland cement kilns exempted from the provisions of this division (relating to Cement Kilns), include any portland cement kiln placed into service on or after December 31, 1999, except as specified in §§117.3110, 117.3120, 117.3123, and 117.3124 of this title (relating to Emission Specifications; Source Cap; Dallas-Fort Worth Eight-Hour Ozone Attainment Demonstration Control Requirements; and Bexar County Control Requirements for Reasonably Available Control Technology (RACT)).(b) Any account in Ellis County with no portland cement kilns in operation prior to January 1, 2001, is exempt from §117.3123 of this title.(c) After the compliance date specified in §117.9320(c) of this title (relating to Compliance Schedule for Cement Kilns), portland cement kilns that are subject to §117.3123 of this title are exempt from §117.3110 and §117.3120 of this title between March 1 and October 31 of each calendar year.(d) After the compliance date specified in §117.9320(c) of this title, portland cement kilns that are subject to §117.3124 of this title are exempt from §117.3110 and §117.3120 of this title.</content><note type="source"><p>Source Note: The provisions of this §117.3103 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3110"><num value="117.3110">§117.3110</num><heading>Emission Specifications</heading><content>(a) In accordance with the compliance schedule in §117.9320 of this title (relating to Compliance Schedule for Cement Kilns), the owner or operator of each portland cement kiln shall ensure that nitrogen oxides (NOX ) emissions do not exceed the following rates on a 30-day rolling average. For the purposes of this section, the 30-day rolling average is calculated as the total of all the hourly emissions data (in pounds) that fuel was combusted in a cement kiln in the preceding 30 consecutive days, divided by the total number of tons of clinker produced in that kiln during the same 30-day period:(1) for each long wet kiln:(A) in Bexar, Comal, Hays, and McLennan Counties, 6.0 pounds per ton (lb/ton) of clinker produced; and(B) in Ellis County, 4.0 lb/ton of clinker produced;(2) for each long dry kiln, 5.1 lb/ton of clinker produced; (3) for each preheater kiln, 3.8 lb/ton of clinker produced; and(4) for each preheater-precalciner or precalciner kiln, 2.8 lb/ton of clinker produced.(b) If there are multiple cement kilns at the same account, the owner or operator may choose to comply with the emission specifications of subsection (a) of this section on the basis of a weighted average for the cement kilns at the account that are subject to the same specification. Each owner or operator choosing this option shall submit written notification of this choice to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction before the appropriate compliance date in §117.9320 of this title.(c) Each long wet or long dry kiln for which the following controls are installed and operated during kiln operation is not required to meet the NOX emission specifications of subsection (a) of this section, provided that each owner or operator choosing this option submits written notification of this choice to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction before the appropriate compliance date in §117.9320 of this title:(1) a low-NOX burner and either:(A) mid-kiln firing; or(B) some other form of secondary combustion achieving equivalent levels of NOX reductions; or alternatively;(2) other additions or changes to the kiln system achieving at least a 30% reduction in NOX emissions, provided the additions or changes are approved by the executive director with concurrence from the United States Environmental Protection Agency.(d) Each preheater or precalciner kiln for which either a low-NOX burner or a low-NOX precalciner is installed and operated during kiln operation is not required to meet the NOX emission specifications of subsection (a) of this section. Each owner or operator choosing this option shall submit written notification of this choice to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction before the appropriate compliance date in §117.9320 of this title.(e) An owner or operator may use §117.9800 of this title (relating to Use of Emission Credits for Compliance) to meet the NOX emission control requirements of this section, in whole or in part.(f) This section no longer applies in Bexar County after December 31, 2024.</content><note type="source"><p>Source Note: The provisions of this §117.3110 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3120"><num value="117.3120">§117.3120</num><heading>Source Cap</heading><content>(a) As an alternative to complying with the requirements of §117.3110 of this title (relating to Emission Specifications) in Bexar, Comal, Ellis, Hays, and McLennan Counties, an owner or operator may reduce total nitrogen oxides (NOX ) emissions (in pounds per day (ppd)) from all cement kilns at the account (including any cement kilns placed into service on or after December 31, 1999) to at least 30% less than the total NOX emissions (in ppd) from all cement kilns in the account's 1996 emissions inventory (EI), on a 90-day rolling average basis. For the purposes of this section, the 90-day rolling average is calculated as the total of all the hourly emissions data for the preceding 90 days. For the calendar year that includes the appropriate compliance date in §117.9320 of this title (relating to Compliance Schedule for Cement Kilns), only hourly emissions data on or after that compliance date is included, such that the first 90-day period ends 90 days after the appropriate compliance date in §117.9320 of this title. A 90-day rolling average emission cap must be calculated using the following equation.Attached Graphic(b) To qualify for the source cap option available under this section, the owner or operator shall submit an initial control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction that demonstrates that the overall reduction of NOX emissions from all cement kilns at the account will be at least 30% from the 1996 baseline EI on a 90-day rolling average basis. The plan must be submitted no later than December 31 of the year preceding the appropriate compliance date in §117.9320 of this title. Each control plan must be approved by the executive director before the owner or operator may use the source cap available under this section for compliance. At a minimum, the control plan must include the emission point number (EPN), facility identification number (FIN), and 1996 baseline EI NOX emissions (in ppd) from each cement kiln at the account; a description of the control measures that have been or will be implemented at each cement kiln; and an explanation of the recordkeeping procedure and calculations that will be used to demonstrate compliance.(c) Beginning on March 31 of the year following the appropriate compliance date in §117.9320 of this title, the owner or operator shall submit an annual report no later than March 31 of each year to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction that demonstrates that the overall reduction of NOX emissions from all cement kilns at the account is at least 30% from the 1996 baseline EI on a 90-day rolling average basis. At a minimum, the report must include the EPN, FIN, and each 90-day rolling average NOX emissions (in ppd) during the preceding calendar year for the cement kilns at the account.(d) All representations in control plans and annual reports become enforceable conditions. The owner or operator shall not vary from such representations if the variation will cause a change in the identity of the specific cement kilns subject to this section or the method of control of emissions unless the owner or operator submits a revised control plan to the executive director, the appropriate regional office, and any local air pollution control program with jurisdiction no later than 30 days after the change. All control plans and reports must demonstrate that the total NOX emissions (in ppd) from all cement kilns at the account (including any cement kilns placed into service on or after December 31, 1999) are being reduced to at least 30% less than the total NOX emissions (in ppd) from all cement kilns in the account's 1996 EI on a 90-day rolling average basis.(e) The NOX emissions monitoring required by §117.3140 of this title (relating to Continuous Demonstration of Compliance) for each cement kiln in the source cap must be used to demonstrate continuous compliance with the source cap.(f) An owner or operator may use §117.9800 of this title (relating to Use of Emission Credits for Compliance) to meet the NOX emission control requirements of this section, in whole or in part.(g) This section no longer applies in Bexar County after December 31, 2024.</content><note type="source"><p>Source Note: The provisions of this §117.3120 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3123"><num value="117.3123">§117.3123</num><heading>Dallas-Fort Worth Eight-Hour Ozone Attainment Demonstration Control Requirements</heading><content>(a) In accordance with the compliance schedule in §117.9320(c) of this title (relating to Compliance Schedule for Cement Kilns), the owner or operator of any portland cement kiln located in Ellis County shall not allow the total nitrogen oxides (NOX ) emissions from all cement kilns located at the account to exceed the source cap limitation determined according to subsection (b) of this section. The source cap limitation of this section only applies from March 1 through October 31 of each calendar year. Compliance with the 30-day rolling average cap must be demonstrated beginning on March 31 of each calendar year. (b) The NOX source cap for an account subject to this section must be calculated according to the following equation. Attached Graphic(c) The monitoring required by §117.3142 of this title (relating to Emission Testing and Monitoring for Eight-Hour Attainment Demonstration) for each cement kiln subject to this section must be used to demonstrate continuous compliance with the source cap requirements of this section. Compliance with the source cap must be demonstrated on a 30-day rolling average basis, calculated according to §117.3142 of this title. (d) For any portland cement kiln not operational prior to calendar year 2006 and that is located at an account subject to this section, the following requirements apply. (1) The cement kiln is subject to the source cap of this section but must not be included in the source cap calculation in subsection (b) of this section. (2) The requirements of §117.3142 of this title and §117.3145 of this title (relating to Notification, Recordkeeping, and Reporting Requirements) apply. (3) The NOX emissions from the kiln must be included in the calculation of 30-day rolling average NOX emissions according to §117.3142 of this title for compliance with the source cap in subsection (b) of this section. (e) The owner or operator of each portland cement kiln located in Ellis County shall submit a control plan to the Office of Compliance and Enforcement, the appropriate regional office, and the Chief Engineer's Office, for compliance with the source cap in subsection (b) of this section. The plan must be submitted according to the compliance schedule in §117.9320(c) of this title. (1) At a minimum, the control plan must include: (A) the emission point number for each kiln at the account; (B) the facility identification number for each kiln at the account; (C) the source cap for the account calculated according to the equation in subsection (b) of this section; and (D) a description of the control measures that have been or will be implemented for each cement kiln for compliance with the source cap. (2) A revised control plan may be submitted by the owner or operator, along with any required permit applications. Such a plan must adhere to the requirements of this division (relating to Cement Kilns). (f) For any kiln that injects urea or ammonia for NOX control, the owner or operator shall not allow ammonia emissions in excess of 10 parts per million by volume at 7.0% oxygen, dry basis, on a 24-hour rolling average basis. (g) An owner or operator may use §117.9800 of this title (relating to Use of Emission Credits for Compliance) to meet the NO X emission control requirements of this section, in whole or in part.</content><note type="source"><p>Source Note: The provisions of this §117.3123 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3124"><num value="117.3124">§117.3124</num><heading>Bexar County Control Requirements for Reasonably Available Control Technology (RACT)</heading><content>(a) In accordance with the applicable schedule in §117.9320 of this title (relating to Compliance Schedule for Cement Kilns), the owner or operator of each portland cement kiln located in Bexar County shall ensure that nitrogen oxides (NOX ) emissions from each preheater-precalciner or precalciner kiln do not exceed 2.8 pounds per ton (lb/ton) of clinker produced on a rolling 30-day average basis.(b) For the purposes of this section, the rolling 30-day average is an average, calculated for each day that fuel was combusted in the cement kiln, as the total of all the hourly emissions data (in pounds) for the preceding 30 days that fuel was combusted in the cement kiln, divided by the total number of tons of clinker produced in that kiln during the same 30-day period.(c) An owner or operator may use §117.9800 of this title (relating to Use of Emission Credits for Compliance) to meet the NOX emission control requirements of this section, in whole or in part.</content><note type="source"><p>Source Note: The provisions of this §117.3124 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3125"><num value="117.3125">§117.3125</num><heading>Alternative Case Specific Specifications</heading><content>(a) Where an owner or operator can demonstrate that an affected portland cement kiln cannot attain the ammonia emission specification in §117.3123(f) of this title (relating to Dallas-Fort Worth Eight-Hour Ozone Attainment Demonstration Control Requirements), the executive director may approve an emission specification different from §117.3123(f) of this title for that unit. The executive director:(1) shall consider on a case-by-case basis the technological and economic circumstances of the individual portland cement kiln;(2) shall determine that such specifications are the result of the lowest ammonia emission specification the unit is capable of meeting after the application of controls to meet the nitrogen oxides emission source cap of §117.3123 of this title; and(3) in determining whether to approve alternative ammonia emission specifications, may take into consideration the ability of the plant where the unit is located to meet emission specifications through plant-wide averaging at maximum capacity.(b) Any owner or operator affected by the executive director's decision to deny an alternative case specific emission specification may file a motion to overturn the executive director's decision. The requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) apply. Executive director approval does not necessarily constitute satisfaction of all federal requirements nor eliminate the need for approval by the United States Environmental Protection Agency in cases where specified criteria for determining equivalency have not been clearly identified in applicable sections of this division (relating to Cement Kilns).</content><note type="source"><p>Source Note: The provisions of this §117.3125 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3140"><num value="117.3140">§117.3140</num><heading>Continuous Demonstration of Compliance</heading><content>(a) Nitrogen oxides (NOX ) monitors. In accordance with the compliance schedule in §117.9320 of this title (relating to Compliance Schedule for Cement Kilns), the owner or operator shall install, calibrate, maintain, and operate a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) to monitor kiln exhaust NOX . (b) CEMS requirements. The owner or operator of any CEMS used to meet the monitoring requirement of subsection (a) of this section shall comply with the following. (1) The CEMS must meet the requirements of 40 Code of Federal Regulations Part 60 as follows: (A) §60.13; (B) Appendix B, Performance Specification 2, for NO X ; and (C) audits in accordance with Section 5.1 of Appendix F, quality assurance procedures, except that a cylinder gas audit or relative accuracy audit may be performed in lieu of the annual relative accuracy test audit (RATA) required in Section 5.1.1. (2) One CEMS may be shared among kilns, provided: (A) the exhaust stream of each kiln is analyzed separately; and (B) the CEMS meets the certification requirements of paragraph (1) of this subsection for each exhaust stream. (3) The CEMS is subject to the approval of the executive director. (c) PEMS requirements. The owner or operator of any PEMS used to meet the monitoring requirement of subsection (a) of this section shall comply with the following. (1) The PEMS must predict the NOX emissions in the units of the applicable emission limitations of this division (relating to Cement Kilns). (2) The PEMS must meet the requirements of §117.8100(b) of this title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources).</content><note type="source"><p>Source Note: The provisions of this §117.3140 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3142"><num value="117.3142">§117.3142</num><heading>Emission Testing and Monitoring for Eight-Hour Attainment Demonstration</heading><content>(a) An owner or operator of any portland cement kiln that is subject to the source cap of §117.3123 of this title (relating to Dallas-Fort Worth Eight-Hour Ozone Attainment Demonstration Control Requirements) shall comply with the following monitoring requirements. (1) The nitrogen oxides (NOX ) monitoring requirements of §117.3140 of this title (relating to Continuous Demonstration of Compliance) apply. The following requirements also apply. (A) For a single portland cement kiln with multiple exhaust stacks, each individual stack must be analyzed separately. (B) One continuous emission monitoring system (CEMS) may be shared among portland cement kilns or among multiple exhaust stacks on a single portland cement kiln, provided: (i) the exhaust stream of each stack is analyzed and reported separately; and (ii) the CEMS meets the certification requirements of §117.3140(b) of this title for each exhaust stream while the CEMS is operating in the time-shared mode. (C) All bypass stacks must be monitored continuously, in order to quantify emissions directed through the bypass stack. If the CEMS is located upstream of the bypass stack then: (i) no effluent streams from other potential sources of NOX emissions may be introduced between the CEMS and the bypass stack; and (ii) the owner or operator shall install, operate, and maintain a continuous monitoring system to record automatically the date, time, and duration of each event when the bypass stack is open. (2) Stack exhaust flow rate must be monitored with a flow meter using the monitoring specifications of 40 Code of Federal Regulations (CFR) Part 60, Appendix B, Performance Specification 6 or 40 CFR Part 75, Appendix A. (3) For portland cement kilns that inject ammonia or urea for NOX control, fuel type notwithstanding, ammonia emissions must be monitored according to one of the methods specified in §117.8130(1), (2), or (4) of this title (relating to Ammonia Monitoring) to demonstrate compliance with the ammonia emission specification in §117.3123(f) of this title. The ammonia monitoring requirements of this paragraph only apply from March 1 to October 31 of each calendar year, or any other time the owner or operator injects ammonia or urea for NOX control. (4) Installation of monitors must be performed in accordance with the schedule specified in §117.9320(c) of this title (relating to Compliance Schedule for Cement Kilns). (b) The owner or operator of a portland cement kiln subject to the source cap requirements of §117.3123 of this title shall calculate NOX emissions for determining compliance with the source cap as follows. The calculation requirements of this subsection only apply from March 1 to October 31 of each calendar year. (1) Hourly NOX emissions. Hourly NOX emissions for each kiln must be calculated according to the following equation. Attached Graphic(2) Daily NOX emissions. The daily total NOX emission for each kiln must be calculated as the sum of the hourly NOX emissions for each calendar day, reported in tons per day, and must be calculated according to the following equation. Attached Graphic(3) Thirty-day rolling average. The 30-day rolling average NOX emissions for the account must be calculated according to the following equation. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §117.3142 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3145"><num value="117.3145">§117.3145</num><heading>Notification, Recordkeeping, and Reporting Requirements</heading><content>(a) Notification. The owner or operator of each portland cement kiln shall submit verbal notification to the executive director of the date of any continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) performance evaluation conducted under §117.3140 or §117.3142 of this title (relating to Continuous Demonstration of Compliance; and Emission Testing and Monitoring for Eight-Hour Attainment Demonstration) at least 15 days before such date followed by written notification within 15 days after testing is completed.(b) Reporting of test results. The owner or operator of each portland cement kiln shall furnish the executive director and any local air pollution control agency having jurisdiction a copy of any CEMS or PEMS relative accuracy test audit conducted under §117.3140 or §117.3142 of this title:(1) within 60 days after completion of such testing or evaluation; and(2) not later than the appropriate compliance date in §117.9320 of this title (relating to Compliance Schedule for Cement Kilns).(c) Recordkeeping. The owner or operator of a portland cement kiln subject to the requirements of this division (relating to Cement Kilns) shall maintain written or electronic records of the data specified in this subsection. Such records must be kept for a period of at least five years and must be made available upon request by authorized representatives of the executive director, United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction. The records must include:(1) for each kiln subject to §117.3110 or 117.3120 of this title (relating to Emission Specifications; and Source Cap), monitoring records of:(A) daily and rolling 30-day average (and, for each kiln subject to the source cap in §117.3120 of this title, rolling 90-day average) nitrogen oxides (NOX ) emissions (in pounds);(B) daily and rolling 30-day average (and, for each kiln subject to the source cap in §117.3120 of this title, rolling 90-day average) production of clinker (in United States short tons); and(C) average NOX emission rate (in pounds per ton (lb/ton) of clinker produced) on the basis of a rolling 30-day average (and, for each kiln subject to the source cap in §117.3120 of this title, a rolling 90-day average);(2) records of the results of initial certification testing, evaluations, calibrations, checks, adjustments, and maintenance of CEMS and PEMS;(3) records of the results of any stack testing conducted; (4) for each kiln subject to the source cap in §117.3123 of this title (relating to Dallas-Fort Worth Eight-Hour Ozone Attainment Demonstration Control Requirements) and emission testing and monitoring requirements in §117.3142 of this title:(A) records of the control plan required under §117.3123 of this title;(B) hourly records of the average NO X concentration in parts per million by volume;(C) hourly records of the NOX emissions in pounds per hour;(D) daily records of the NOX emissions in tons per day;(E) daily records of the NOX emissions in tons per day expressed as a 30-day rolling average;(F) hourly records of the average exhaust gas flow rate in dry standard cubic feet per minute; and(G) records of ammonia monitoring required under §117.3142(a)(3) of this title; and(5) for each kiln subject to §117.3124 of this title (relating to Bexar County Control Requirements for Reasonably Available Control Technology (RACT)), monitoring records of: (A) hourly, daily, and rolling 30-day average NOX emissions (in pounds);(B) hourly, daily, and rolling 30-day average production of clinker (in United States short tons); and(C) rolling 30-day average NOX emission rate (in pounds per ton of clinker produced).</content><note type="source"><p>Source Note: The provisions of this §117.3145 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3200"><num value="117.3200">§117.3200</num><heading>Applicability</heading><content>This division (relating to Water Heaters, Small Boilers, and Process Heaters) applies to manufacturers, distributors, retailers, and installers of natural gas-fired water heaters, boilers, and process heaters with a maximum rated capacity of 2.0 million British thermal units per hour or less.</content><note type="source"><p>Source Note: The provisions of this §117.3200 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3201"><num value="117.3201">§117.3201</num><heading>Definitions</heading><content>Unless specifically defined in Texas Health and Safety Code, Chapter 382 (also known as the Texas Clean Air Act) or in the rules of the commission, the terms used by the commission have the meanings commonly used in the field of air pollution control. In addition to the terms that are defined by Texas Health and Safety Code, Chapter 382, the following terms, when used in this division (relating to Water Heaters, Small Boilers, and Process Heaters), have the following meanings, unless the context clearly indicates otherwise. Additional definitions for terms used in this division are found in §§3.2, 101.1, and 117.10 of this title (relating to Definitions). (1) Heat output--The product HO obtained when a Type 0, 1, or 2 unit is tested according to Section 9.3 of the South Coast Air Quality Management District Protocol: Nitrogen Oxides Emissions Compliance Testing for Natural Gas-Fired Water Heaters and Small Boilers (January 1998). (2) Type 0 unit--Any water heater, boiler, or process heater with a maximum rated capacity of no more than 75,000 British thermal units per hour. (3) Type 1 unit--Any water heater, boiler, or process heater with a maximum rated capacity greater than 75,000, but no more than 400,000 British thermal units per hour. (4) Type 2 unit--Any water heater, boiler, or process heater with a maximum rated capacity greater than 400,000 British thermal units per hour, but no more than 2.0 million British thermal units per hour. (5) Water heater--A closed vessel in which water is heated by combustion of gaseous fuel and is withdrawn for use external to the vessel at pressures not exceeding 160 pounds per square inch gauge, including the apparatus by which the heat is generated and all controls and devices necessary to prevent water temperatures from exceeding 210 degrees Fahrenheit.</content><note type="source"><p>Source Note: The provisions of this §117.3201 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3203"><num value="117.3203">§117.3203</num><heading>Exemptions</heading><content>This division (relating to Water Heaters, Small Boilers, and Process Heaters) does not apply to:(1) units using a fuel other than natural gas;(2) units used in recreational vehicles;(3) Type 0 units, or Type 1 or 2 units at single-family residences, used exclusively to heat swimming pools and hot tubs;(4) units manufactured in Texas for shipment and use outside of Texas; and(5) units that do not comply with the nitrogen oxides specifications in §117.3205 of this title (relating to Emission Specifications) that are sold, supplied, or offered for sale in Texas, provided that the manufacturer or distributor can demonstrate that the units are intended for shipment and use outside of Texas, and that the manufacturer or distributor has taken reasonable, prudent precautions to assure that the units are not distributed for sale in Texas. This paragraph does not apply to units that are sold, supplied, or offered for sale by any person to retail outlets in Texas.</content><note type="source"><p>Source Note: The provisions of this §117.3203 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3205"><num value="117.3205">§117.3205</num><heading>Emission Specifications</heading><content>(a) Natural gas-fired boilers and process heaters sold, distributed, installed, or offered for sale within the State of Texas must meet the following specifications for nitrogen oxides (NOX ). (1) Type 0 units manufactured on or after July 1, 2002, but no later than December 31, 2004, must not exceed: (A) 40 nanograms per joule (ng/J) of heat output; or (B) 55 parts per million by volume (ppmv) at 3.0% oxygen (O2), dry. (2) Type 0 units manufactured on or after January 1, 2005, must not exceed: (A) 10 ng/J of heat output; or (B) 15 ppmv at 3.0% O2, dry. (3) Type 1 units manufactured on or after July 1, 2002, must not exceed: (A) 40 ng/J of heat output; or (B) 55 ppmv at 3.0% O2, dry. (4) Type 2 units manufactured on or after July 1, 2002, must not exceed: (A) 30 ppmv at 3.0% O2, dry; or (B) 0.037 pounds per million British thermal units (lb/MMBtu) of heat input. (b) Natural gas-fired water heaters sold, distributed, installed, or offered for sale within the State of Texas must meet the following specifications for NOX . (1) Type 0 units manufactured on or after July 1, 2002, must not exceed: (A) 40 ng/J of heat output; or (B) 55 ppmv at 3.0% O2, dry. (2) Type 1 units manufactured on or after July 1, 2002, must not exceed: (A) 40 ng/J of heat output; or (B) 55 ppmv at 3.0% O2, dry. (3) Type 2 units manufactured on or after July 1, 2002, must not exceed: (A) 30 ppmv at 3.0% O2, dry; or (B) 0.037 lb/MMBtu of heat input.</content><note type="source"><p>Source Note: The provisions of this §117.3205 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3210"><num value="117.3210">§117.3210</num><heading>Certification Requirements</heading><content>(a) The manufacturer shall demonstrate that each model of Type 0, 1, and 2 unit subject to the requirements of §117.3205 of this title (relating to Emission Specifications) has been tested in accordance with Test Method 7 (40 Code of Federal Regulations Part 60, Appendix A), including 7A-E, and the South Coast Air Quality Management District (SCAQMD) Protocol: Nitrogen Oxides Emissions Compliance Testing for Natural Gas-Fired Water Heaters and Small Boilers (January 1998).(b) The manufacturer may submit to the executive director an approved Bay Area Air Quality Management District or SCAQMD certification in lieu of conducting duplicative certification tests.</content><note type="source"><p>Source Note: The provisions of this §117.3210 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3215"><num value="117.3215">§117.3215</num><heading>Notification and Labeling Requirements</heading><content>(a) Each manufacturer shall submit to the executive director a statement certifying that Type 0, 1, and 2 units subject to the requirements of §117.3205 of this title (relating to Emission Specifications) are in compliance with §117.3205 of this title. The statement must be signed and dated and attest to the accuracy of all information. The statement must include the manufacturer's brand name, model number, and the input rating as it appears on the rating plate. The manufacturer shall inform their wholesaler and/or retailer of the certification requirement of this subsection.(b) The manufacturer shall display the model number and date of manufacture of each Type 0, 1, and 2 unit complying with §117.3205 of this title on the shipping carton and rating plate of each Type 0, 1, and 2 unit.</content><note type="source"><p>Source Note: The provisions of this §117.3215 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3300"><num value="117.3300">§117.3300</num><heading>Applicability</heading><content>This division (relating to East Texas Combustion) applies to stationary, gas-fired reciprocating internal combustion engines at any stationary source of nitrogen oxides in the following affected counties: Anderson, Brazos, Burleson, Camp, Cass, Cherokee, Franklin, Freestone, Gregg, Grimes, Harrison, Henderson, Hill, Hopkins, Hunt, Lee, Leon, Limestone, Madison, Marion, Morris, Nacogdoches, Navarro, Panola, Rains, Robertson, Rusk, Shelby, Smith, Titus, Upshur, Van Zandt, and Wood Counties.</content><note type="source"><p>Source Note: The provisions of this §117.3300 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3303"><num value="117.3303">§117.3303</num><heading>Exemptions</heading><content>The following stationary engines are exempt from this division (relating to East Texas Combustion), except as specified in §117.3345(b) of this title (relating to Recordkeeping and Reporting Requirements):(1) engines with a maximum rated horsepower (hp) capacity of less than 240 hp;(2) engines used in research and testing;(3) engines used for purposes of performance verification and testing;(4) engines used solely to power other engines or gas turbines during startups;(5) engines operated exclusively in emergency situations, except that operation for testing or maintenance purposes is allowed for up to 100 hours per year, based on a rolling 12-month average;(6) engines used in response to and during the existence of any officially declared disaster or state of emergency;(7) engines used directly and exclusively by the owner or operator for agricultural operations necessary for the growing of crops or raising of fowl or animals;(8) diesel engines;(9) dual-fuel engines; and(10) gas-fired lean-burn engines.</content><note type="source"><p>Source Note: The provisions of this §117.3303 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3310"><num value="117.3310">§117.3310</num><heading>Emission Specifications for Eight-Hour Attainment Demonstration</heading><content>(a) The owner or operator of any stationary, gas-fired reciprocating internal combustion engine subject to this division (relating to East Texas Combustion) shall not allow the discharge into the atmosphere emissions of nitrogen oxides (NOX ) in excess of the following emission specifications: (1) gas-fired rich-burn engines with a maximum rated capacity less than 500 horsepower (hp), 1.00 grams per horsepower-hour (g/hp-hr); and (2) gas-fired rich-burn engines with a maximum rated capacity equal to or greater than 500 hp: (A) fired on landfill gas, 0.60 g/hp-hr; and (B) all other rich-burn engines, 0.50 g/hp-hr. (b) The averaging time for determining compliance with the emission specifications in subsection (a) of this section must be a block one-hour average, in the units of the applicable standard. (c) The maximum rated capacity used to determine the applicability of the emission specifications of subsection (a) of this section or the exemption status of an engine under §117.3303(1) of this title (relating to Exemptions) must be the greater of the following: (1) the maximum rated capacity as of December 31, 2000; or (2) the maximum rated capacity after December 31, 2000. (d) An engine's classification is determined by the most specific classification applicable to the unit as of December 31, 2000. For example, an engine that is classified as a stationary gas-fired engine as of December 31, 2000, but subsequently is authorized to operate as a dual-fuel engine, must be classified as a stationary gas-fired engine for the purposes of this chapter. (e) The owner or operator of any engine subject to the NOX emission specifications of subsection (a) of this section that injects urea or ammonia into the exhaust stream for NO X control, shall not allow the discharge into the atmosphere ammonia emissions in excess of 10 parts per million by volume at 3.0% O 2, dry, except as provided in §117.3325 of this title (relating to Alternative Case Specific Specifications), based on: (1) a block one-hour averaging period for units not equipped with a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) for ammonia; or (2) a rolling 24-hour averaging period for units equipped with CEMS or PEMS for ammonia. (f) An owner or operator may use emission reduction credits as specified in §117.9800 of this title (relating to Use of Emission Credits for Compliance) to comply with the NOX emission specifications of this section.</content><note type="source"><p>Source Note: The provisions of this §117.3310 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3325"><num value="117.3325">§117.3325</num><heading>Alternative Case Specific Specifications</heading><content>(a) Where a person can demonstrate that an affected engine cannot attain the ammonia specification of §117.3310(e) of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration), the executive director may approve emission specifications different from the ammonia specification in §117.3310(e) of this title for that engine. The executive director:(1) shall consider on a case-by-case basis the technological and economic circumstances of the individual engine;(2) shall determine that such specifications are the result of the lowest emission limitation the engine is capable of meeting after the application of controls to meet the nitrogen oxides emission specifications of §117.3310 of this title; and(3) in determining whether to approve alternative emission specifications, may take into consideration the ability of the plant where the engine is located to meet emission specifications through system-wide averaging at maximum capacity.(b) Any owner or operator affected by the executive director's decision to deny an alternative case specific emission specification may file a motion to overturn the executive director's decision. The requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) apply.</content><note type="source"><p>Source Note: The provisions of this §117.3325 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3330"><num value="117.3330">§117.3330</num><heading>Operating Requirements</heading><content>(a) The owner or operator shall operate any stationary, reciprocating combustion engine subject to §117.3310 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) in compliance with the emission specifications of §117.3310 of this title. (b) Each stationary, reciprocating combustion engine subject to §117.3310 of this title must be operated so as to minimize nitrogen oxides (NOX ) emissions, consistent with the emission control techniques selected, over the engine's operating or load range during normal operations. Such operational requirements include the following. (1) Each engine controlled with post-combustion control techniques must be operated such that the reducing agent injection rate is maintained to limit NOX concentrations to less than or equal to the NOX concentrations achieved at maximum rated capacity. (2) Each engine controlled with nonselective catalytic reduction must be equipped with an automatic air-fuel ratio (AFR) controller that operates on exhaust oxygen or carbon monoxide (CO) control basis and maintains the AFR in the range required to meet the engine's applicable emission specifications. (3) Each engine must be checked for proper operation by recorded NOX measurements according to §117.8140(b) of this title (relating to Emission Monitoring for Engines). The owner or operator of an engine subject to this paragraph is not required to perform the CO measurements under §117.8140(b) of this title. Engines equipped with a continuous emissions monitoring system or a predictive emissions monitoring system to monitor NOX are exempt from the requirements of this paragraph.</content><note type="source"><p>Source Note: The provisions of this §117.3330 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3335"><num value="117.3335">§117.3335</num><heading>Monitoring, Notification, and Testing Requirements</heading><content>(a) Oxygen (O2) monitors. If the owner or operator installs a continuous emissions monitoring system (CEMS) to monitor O2, the CEMS must meet the requirements of §117.8100(a) of this title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources). (b) Nitrogen oxides (NOX ) monitors. If the owner or operator installs a CEMS or predictive emissions monitoring system (PEMS) to monitor NOX , the CEMS or PEMS must meet the requirements of §117.8100(a) or (b) of this title, as applicable. (c) Monitor installation schedule. If the owner or operator elects to installs CEMS or PEMS to monitor NOX or O2 as provided in subsections (a) and (b) of this section, installation and certification of monitoring systems must be performed in accordance with the schedule specified in §117.9340 of this title (relating to Compliance Schedule for East Texas Combustion). (d) Testing requirements. The owner or operator of any stationary, reciprocating combustion engine subject to §117.3310 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) shall comply with the following testing requirements. (1) Each engine must be tested for NO X and O2 emissions. (2) Each engine that injects urea or ammonia into the exhaust stream for NOX control must be tested for ammonia emissions. (3) For engines not equipped with CEMS or PEMS, all testing must be conducted according to §117.8000 of this title (relating to Stack Testing Requirements). In lieu of the test methods specified in §117.8000 of this title, the owner or operator may use American Society for Testing and Materials (ASTM) D6522-00 to perform the NOX and O2 testing required by this subsection on natural gas-fired reciprocating internal combustion engines. If the owner or operator elects to use ASTM D6522-00 for the testing requirements, the report must contain the information specified in §117.8010 of this title (relating to Compliance Stack Test Reports). (4) Test results must be reported in the units of the applicable emission specifications and averaging periods. (5) For engines equipped with CEMS or PEMS, the CEMS or PEMS must be installed and operational before conducting testing under this subsection. Verification of operational status must, at a minimum, include completion of the initial monitor certification and the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device. (6) For engines operating with CEMS or PEMS, initial compliance with the emission specifications of §117.3310 of this title may be demonstrated by using the CEMS or PEMS, after monitor certification testing, in lieu of the methods specified in §117.3335(d)(3) of this title (relating to Monitoring, Notification, and Testing Requirements). (7) For engines not operating with CEMS or PEMS, periodic testing for NOX emissions must be conducted according to §117.8140(a) of this title (relating to Emission Monitoring for Engines). (A) Retesting as specified in paragraphs (1) - (4) of this subsection is required within 60 days after any modification that could reasonably be expected to increase the NOX emission rate. (B) Retesting as specified in paragraphs (1) - (4) of this subsection may be conducted at the discretion of the owner or operator after any modification that could reasonably be expected to decrease the NOX emission rate, including, but not limited to, installation of post-combustion controls or low-NOX burners, low excess air operation, staged combustion (for example, overfire air), flue gas recirculation, and fuel-lean and conventional (fuel-rich) reburn. (8) Testing must be performed in accordance with the schedule specified in §117.9340 of this title. (e) Ammonia monitoring. Each stationary, reciprocating combustion engine that injects urea or ammonia into the exhaust stream for NO X control must be monitored according to one of the ammonia monitoring procedures specified in §117.8130 of this title (relating to Ammonia Monitoring). (f) Notification. The owner or operator of an affected stationary, reciprocating combustion engine must submit written notification of any CEMS or PEMS relative accuracy test audit (RATA) or testing required under this section, except for testing related to ammonia monitoring specified in subsection (e) of this section, to the appropriate regional office and any local air pollution control agency having jurisdiction at least 15 days in advance of the date of RATA or testing.</content><note type="source"><p>Source Note: The provisions of this §117.3335 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scE/s117.3345"><num value="117.3345">§117.3345</num><heading>Recordkeeping and Reporting Requirements</heading><content>(a) Recordkeeping. The owner or operator of a stationary, reciprocating combustion engine subject to §117.3310 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) shall maintain written or electronic records of the data specified in this subsection. Such records must be kept for a period of at least five years and must be made available upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction. The records must include:(1) for each engine using a continuous emissions monitoring system (CEMS) or predictive emissions monitoring systems (PEMS) in accordance with §117.3335(a) or (b) of this title (relating to Monitoring, Notification, and Testing Requirements), monitoring records of hourly emissions for engines complying with an emission specification enforced on a block one-hour average;(2) for each engine subject to §117.3310 of this title, records of:(A) emissions measurements required by §117.3330(b)(3) of this title (relating to Operating Requirements); and(B) catalytic converter, air-fuel ratio controller, or other emissions-related control system maintenance, including the date and nature of corrective actions taken;(3) records of the results of initial certification testing, evaluations, calibrations, checks, adjustments, and maintenance of CEMS, PEMS, or steam-to-fuel or water-to-fuel ratio monitoring systems;(4) records of the results of performance testing, including the testing conducted in accordance with §117.3335(d) of this title; and(5) records of the ammonia monitoring required by §117.3335(e) of this title, if applicable.(b) Records for exempt engines. Written records of the number of hours of operation for each day's operation must be made for each engine claimed exempt under §117.3303(5) of this title (relating to Exemptions) or §117.3330(b)(3) of this title. In addition, for each engine claimed exempt under §117.3303(5) of this title, written records must be maintained that document the purpose of the engine operation, and if operation was for an emergency situation, identify the type of emergency situation and the start and end times and date(s) of the emergency situation. The records must be maintained for at least five years and must be made available upon request to representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution control agency having jurisdiction.(c) Reporting. Except for the ammonia monitoring requirements of §117.3335(e) of this title, the owner or operator of an affected stationary, reciprocating combustion engine shall furnish the appropriate regional office and the Office of Compliance and Enforcement reports of all testing and monitor certifications required under §117.3335 of this title. Reports must be submitted for review and approval within 60 days after completion of the testing and must contain the information specified in §117.8010 of this title (relating to Compliance Stack Test Reports). Testing conducted under §117.3330(b)(3) of this title is not subject to the reporting requirements of this subsection.</content><note type="source"><p>Source Note: The provisions of this §117.3345 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c117/scF"><num value="F">SUBCHAPTER F</num><heading>ACID MANUFACTURING</heading><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4000"><num value="117.4000">§117.4000</num><heading>Applicability</heading><content>The provisions of this division (relating to Adipic Acid Manufacturing) apply only in the Beaumont-Port Arthur and Houston-Galveston-Brazoria ozone nonattainment areas. These provisionsapply to each adipic acid production unit that is the affected facility.</content><note type="source"><p>Source Note: The provisions of this §117.4000 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4005"><num value="117.4005">§117.4005</num><heading>Emission Specifications</heading><content>No person may allow emissions of nitrogen oxides, calculated as nitrogen dioxide, from the absorber of any adipic acid production unit to exceed 2.5 pounds per ton of adipic acid produced, on a 24-hour rolling average.</content><note type="source"><p>Source Note: The provisions of this §117.4005 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4025"><num value="117.4025">§117.4025</num><heading>Alternative Case Specific Specifications</heading><content>Where a person can demonstrate that an affected unit cannot attain the requirements of §117.4005 of this title (relating to Emission Specifications), as applicable, the executive director, on a case-by-case basis after considering the technological and economic circumstances of the individual unit, may approve emission specifications different from §117.4005 of this title for that unit based on the determination that such specifications are the result of the lowest emission limitation the unit is capable of meeting after the application of controls to meet the nitrogen oxides emission specifications of §117.4005 of this title. Any owner or operator affected by the decision of the executive director may file a motion to overturn the executive director's decision. The requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) apply. Executive director approval does not necessarily constitute satisfaction of all federal requirements nor eliminate the need for approval by the United States Environmental Protection Agency in cases where specified criteria for determining equivalency have not been clearly identified in applicable sections of this division (relating to Adipic Acid Manufacturing).</content><note type="source"><p>Source Note: The provisions of this §117.4025 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4035"><num value="117.4035">§117.4035</num><heading>Initial Demonstration of Compliance</heading><content>(a) Compliance with the nitrogen oxides emission specifications in §117.4005 of this title (relating to Emission Specifications) must be determined by the performance testing procedures specified in 40 Code of Federal Regulations (CFR) Part 60, Appendix A, Method 7, or an equivalent method approved by the executive director. Method 7A, 7B, 7C, or 7D may be used in place of Method 7. If Method 7C or 7D is used, the sampling time must be at least one hour.(b) Performance testing must be conducted in accordance with the procedures specified in 40 CFR §60.8.(c) Any continuous emissions monitoring systems (CEMS) or predictive emissions monitoring systems (PEMS) required by §117.4040 of this title (relating to Continuous Demonstration of Compliance) must be installed and operational prior to conducting performance testing under subsections (a) and (b) of this section. Verification of operational status must, at a minimum, include completion of the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device or system.(d) Testing conducted before June 23, 1994, may be used to demonstrate compliance with the standard specified in §117.4005 of this title if the owner or operator of an affected facility demonstrates to the executive director that the prior performance testing at least meets the requirements of subsections (a) - (c) of this section. The executive director reserves the right to request performance testing or CEMS or PEMS performance evaluation at any time.</content><note type="source"><p>Source Note: The provisions of this §117.4035 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4040"><num value="117.4040">§117.4040</num><heading>Continuous Demonstration of Compliance</heading><content>(a) The owner or operator of any facility subject to the provisions of this division (relating to Adipic Acid Manufacturing) shall install, calibrate, maintain, and operate a continuous emissions monitoring system (CEMS) for measuring nitrogen oxides (NOX ) from the absorber. (b) Any CEMS installed subject to subsection (a) of this section must meet all requirements of 40 Code of Federal Regulations (CFR) §60.13; 40 CFR Part 60, Appendix B, Performance Specification 2; and quality assurance procedures of 40 CFR Part 60, Appendix F, except that a cylinder gas audit may be performed in lieu of the annual relative accuracy test audit required in Section 5.1.1. (c) As an alternative to CEMS, the owner or operator of units subject to continuous monitoring requirements under this division may, with the approval of the executive director, elect to install, calibrate, maintain, and operate a predictive emissions monitoring system (PEMS). The required PEMS must be used to measure NOX emissions for each affected unit and must be used to demonstrate continuous compliance with the emission specifications of §117.4005 of this title (relating to Emission Specifications). Any PEMS must meet the requirements of §117.4045 and §117.8100(b) of this title (relating to Notification, Recordkeeping, and Reporting Requirements; and Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources). (d) The owner or operator of an affected facility shall establish a conversion factor for the purpose of converting monitoring data into units of the NOX emission standard (in pounds per ton of acid produced) as specified in 40 CFR §60.73(b). NO X emissions data recorded by the CEMS or PEMS must be represented in terms of both parts per million by volume and pounds per ton of acid produced. (e) After the initial demonstration of compliance required by §117.4035 of this title (relating to Initial Demonstration of Compliance), compliance with §117.4005 of this title must be determined by the methods required in this section. Compliance with the emission specifications may also be determined at the discretion of the executive director using any commission compliance method.</content><note type="source"><p>Source Note: The provisions of this §117.4040 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4045"><num value="117.4045">§117.4045</num><heading>Notification, Recordkeeping, and Reporting Requirements</heading><content>(a) The owner or operator of an affected facility shall submit notification to the executive director, as follows: (1) verbal notification of the date of any continuous emissions monitoring systems (CEMS) or predictive emissions monitoring systems (PEMS) performance evaluation conducted under §117.4040(b) of this title (relating to Continuous Demonstration of Compliance) at least 15 days prior to such date followed by written notification within 15 days after testing is completed; and (2) verbal notification of the date of any initial demonstration of compliance testing conducted under §117.4035 of this title (relating to Initial Demonstration of Compliance) at least 15 days prior to such date followed by written notification within 15 days after testing is completed. (b) The owner or operator of an affected facility shall furnish the executive director and any local air pollution control agency having jurisdiction a copy of any CEMS or PEMS performance evaluation conducted under §117.4040 of this title, or any initial demonstration of compliance testing conducted under §117.4035 of this title, within 60 days after completion of such evaluation or testing. For purposes of demonstrating compliance with §117.9500 of this title (relating to Compliance Schedule for Nitric Acid and Adipic Acid Manufacturing Sources), such results must be submitted no later than 30 days before the final compliance date specified in §117.9500 of this title. (c) The owner or operator of an affected facility shall report in writing to the executive director on a quarterly basis all periods of excess emissions, defined as any 24-hour period that the average nitrogen oxides emissions (arithmetic average of 24 contiguous one-hour periods) exceed the emission specification in §117.4005 of this title (relating to Emission Specifications) and the monitoring system performance. All reports must be postmarked or received by the 30th day following the end of each calendar quarter. Written reports must include the following information: (1) the magnitude of excess emissions computed in accordance with 40 Code of Federal Regulations §60.13(h), any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the process operating time during the reporting period; (2) specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the affected unit, the nature and cause of any malfunction (if known), and the corrective action taken or preventative measures adopted; (3) the date and time identifying each period that the CEMS or PEMS was inoperative, except for zero and span checks and the nature of the system repairs or adjustments; (4) when no excess emissions have occurred or the continuous monitoring system has not been inoperative, repaired, or adjusted, such information must be stated in the report; and (5) if the total duration of excess emissions for the reporting period is less than 1.0% of the total operating time for the reporting period and the CEMS or PEMS downtime for the reporting period is less than 5.0% of the total operating time for the reporting period, only a summary report form (as outlined in the latest edition of the commission's Guidance for Preparation of Summary, Excess Emission, and Continuous Monitoring System Reports) must be submitted, unless otherwise requested by the executive director. If the total duration of excess emissions for the reporting period is greater than or equal to 1.0% of the total operating time for the reporting period or the CEMS or PEMS downtime for the reporting period is greater than or equal to 5.0% of the total operating time for the reporting period, a summary report and an excess emission report must both be submitted. (d) The owner or operator of an affected facility shall maintain written records of all continuous emissions monitoring and performance test results, hours of operation, and daily production rates. Such records must be kept for a period of at least five years and must be made available upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or local air pollution control agencies having jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §117.4045 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4050"><num value="117.4050">§117.4050</num><heading>Control Plan Procedures</heading><content>Any person affected by this division (relating to Adipic Acid Manufacturing) shall submit a control plan to the executive director on the compliance status of all required emission controls and monitoring systems by April 1, 1994. The executive director shall approve the plan if it contains all the information specified in this section. Revisions to the control plan must be submitted to the executive director for approval. The control plan must provide a detailed description of the method to be followed to achieve compliance, specifying the anticipated dates that the following steps will be taken:(1) dates that contracts for emission control and monitoring systems will be awarded or dates that orders will be issued for the purchase of component parts to accomplish emission control or process modification;(2) date of initiation of on-site construction or installation of emission control equipment or process modification;(3) date that on-site construction or installation of emission control equipment or process modification is to be completed; and(4) date that final compliance is to be achieved.</content><note type="source"><p>Source Note: The provisions of this §117.4050 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4100"><num value="117.4100">§117.4100</num><heading>Applicability</heading><content>The provisions of this division (relating to Nitric Acid Manufacturing--Ozone Nonattainment Areas) apply only in the Beaumont-Port Arthur and Houston-Galveston-Brazoria ozone nonattainment areas. These provisions apply to each nitric acid production unit that is the affected facility.</content><note type="source"><p>Source Note: The provisions of this §117.4100 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4105"><num value="117.4105">§117.4105</num><heading>Emission Specifications</heading><content>No person may allow emissions of nitrogen oxides, calculated as nitrogen dioxide, from the absorber of any nitric acid production unit to exceed 2.0 pounds per ton of nitric acid produced, the production being expressed as 100% nitric acid, on a 24-hour rolling average.</content><note type="source"><p>Source Note: The provisions of this §117.4105 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4125"><num value="117.4125">§117.4125</num><heading>Alternative Case Specific Specifications</heading><content>Where a person can demonstrate that an affected unit cannot attain the requirements of §117.4105 of this title (relating to Emission Specifications), as applicable, the executive director, on a case-by-case basis after considering the technological and economic circumstances of the individual unit, may approve emission specifications different from §117.4105 of this title for that unit based on the determination that such specifications are the result of the lowest emission limitation the unit is capable of meeting after the application of controls to meet the nitrogen oxides emission specifications of §117.4105 of this title. Any owner or operator affected by the decision of the executive director may file a motion to overturn the executive director's decision. The requirements of §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) apply. Executive director approval does not necessarily constitute satisfaction of all federal requirements nor eliminate the need for approval by the United States Environmental Protection Agency in cases where specified criteria for determining equivalency have not been clearly identified in applicable sections of this division (relating to Nitric Acid Manufacturing--Ozone Nonattainment Areas).</content><note type="source"><p>Source Note: The provisions of this §117.4125 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4135"><num value="117.4135">§117.4135</num><heading>Initial Demonstration of Compliance</heading><content>(a) Compliance with the nitrogen oxides emission specifications in §117.4105 of this title (relating to Emission Specifications) must be determined by the performance testing procedures specified in 40 Code of Federal Regulations (CFR) Part 60, Appendix A, Method 7, or an equivalent method approved by the executive director. Method 7A, 7B, 7C, or 7D may be used in place of Method 7. If Method 7C or 7D is used, the sampling time must be at least one hour.(b) Performance testing must be conducted in accordance with the procedures specified in 40 CFR §60.8.(c) Any continuous emissions monitoring systems (CEMS) or predictive emissions monitoring systems (PEMS) required by §117.4140 of this title (relating to Continuous Demonstration of Compliance) must be installed and operational prior to conducting performance testing under subsections (a) and (b) of this section. Verification of operational status must, at a minimum, include completion of the manufacturer's written requirements or recommendations for installation, operation, and calibration of the device or system.(d) Testing conducted before June 23, 1994, may be used to demonstrate compliance with the standard specified in §117.4105 of this title if the owner or operator of an affected facility demonstrates to the executive director that the prior performance testing, at a minimum, meets the requirements of subsections (a) - (c) of this section. The executive director reserves the right to request performance testing or CEMS or PEMS performance evaluation at any time.</content><note type="source"><p>Source Note: The provisions of this §117.4135 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4140"><num value="117.4140">§117.4140</num><heading>Continuous Demonstration of Compliance</heading><content>(a) The owner or operator of any facility subject to the provisions of this division (relating to Nitric Acid Manufacturing--Ozone Nonattainment Areas) shall install, calibrate, maintain, and operate a continuous emissions monitoring system (CEMS) for measuring nitrogen oxides (NO X ) from the absorber. (b) Any CEMS installed subject to subsection (a) of this section must meet all requirements of 40 Code of Federal Regulations (CFR) §60.13; 40 CFR Part 60, Appendix B, Performance Specification 2; and quality assurance procedures of 40 CFR Part 60, Appendix F, except that a cylinder gas audit may be performed in lieu of the annual relative accuracy test audit required in Section 5.1.1. (c) As an alternative to CEMS, the owner or operator of units subject to continuous monitoring requirements under this division may, with the approval of the executive director, elect to install, calibrate, maintain, and operate a predictive emissions monitoring system (PEMS). The required PEMS must be used to measure NOX emissions for each affected unit and must be used to demonstrate continuous compliance with the emission limitations of §117.4105 of this title (relating to Emission Specifications). Any PEMS must meet the requirements of §117.4145 and §117.8100(b) of this title (relating to Notification, Recordkeeping, and Reporting Requirements; and Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources). (d) The owner or operator of an affected facility shall establish a conversion factor for the purpose of converting monitoring data into units of the NOX emission standard (in pounds per ton of acid produced, expressed as 100% nitric acid) as specified in 40 CFR §60.73(b). NOX emissions data recorded by the CEMS or PEMS must be represented in terms of both parts per million by volume and pounds per ton of acid produced, expressed as 100% nitric acid. (e) After the initial demonstration of compliance required by §117.4135 of this title (relating to Initial Demonstration of Compliance), compliance with §117.4105 of this title must be determined by the methods required in this section. Compliance with the emission specifications may also be determined at the discretion of the executive director using any commission compliance method.</content><note type="source"><p>Source Note: The provisions of this §117.4140 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4145"><num value="117.4145">§117.4145</num><heading>Notification, Recordkeeping, and Reporting Requirements</heading><content>(a) The owner or operator of an affected facility shall submit notification to the executive director, as follows: (1) verbal notification of the date of any continuous emissions monitoring systems (CEMS) or predictive emissions monitoring systems (PEMS) performance evaluation conducted under §117.4140(b) of this title (relating to Continuous Demonstration of Compliance) at least 15 days prior to such date followed by written notification within 15 days after testing is completed; and (2) verbal notification of the date of any initial demonstration of compliance testing conducted under §117.4135 of this title (relating to Initial Demonstration of Compliance) at least 15 days prior to such date followed by written notification within 15 days after testing is completed. (b) The owner or operator of an affected facility shall furnish the executive director and any local air pollution control agency having jurisdiction a copy of any CEMS or PEMS performance evaluation conducted under §117.4140 of this title, or any initial demonstration of compliance testing conducted under §117.4135 of this title, within 60 days after completion of such evaluation or testing. For purposes of demonstrating compliance with §117.9500 of this title (relating to Compliance Schedule for Nitric Acid and Adipic Acid Manufacturing Sources), such results must be submitted no later than 30 days before the final compliance date specified in §117.9500 of this title. (c) The owner or operator of an affected facility shall report in writing to the executive director on a quarterly basis all periods of excess emissions, defined as any 24-hour period that the average nitrogen oxides emissions (arithmetic average of 24 contiguous one-hour periods), as measured by a CEMS or PEMS, exceed the emission specification in §117.4105 of this title (relating to Emission Specifications) and the monitoring system performance. All reports must be postmarked or received by the 30th day following the end of each calendar quarter. Written reports must include the following information: (1) the magnitude of excess emissions computed in accordance with 40 Code of Federal Regulations §60.13(h), any conversion factors used, the date and time of commencement and completion of each time period of excess emissions, and the process operating time during the reporting period; (2) specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the affected unit. The nature and cause of any malfunction (if known) and the corrective action taken or preventative measures adopted; (3) the date and time identifying each period that the CEMS or PEMS was inoperative, except for zero and span checks and the nature of the system repairs or adjustments; (4) when no excess emissions have occurred or the continuous monitoring system has not been inoperative, repaired, or adjusted, such information must be stated in the report; and (5) if the total duration of excess emissions for the reporting period is less than 1.0% of the total operating time for the reporting period and the CEMS or PEMS downtime for the reporting period is less than 5.0% of the total operating time for the reporting period, only a summary report form (as outlined in the latest edition of the commission's Guidance for Preparation of Summary, Excess Emission, and Continuous Monitoring System Reports) must be submitted, unless otherwise requested by the executive director. If the total duration of excess emissions for the reporting period is greater than or equal to 1.0% of the total operating time for the reporting period or the CEMS or PEMS downtime for the reporting period is greater than or equal to 5.0% of the total operating time for the reporting period, a summary report and an excess emission report must both be submitted. (d) The owner or operator of an affected facility shall maintain written records of all continuous emissions monitoring and performance test results, hours of operation, and daily production rates. Such records must be kept for a period of at least five years and must be made available upon request by authorized representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution control agency having jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §117.4145 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4150"><num value="117.4150">§117.4150</num><heading>Control Plan Procedures</heading><content>Any person affected by this division (relating to Nitric Acid Manufacturing--Ozone Nonattainment Areas) shall submit a control plan to the executive director on the compliance status of all required emission controls and monitoring systems by April 1, 1994. The executive director shall approve the plan if it contains all the information specified in this section. Revisions to the control plan must be submitted to the executive director for approval. The control plan must provide a detailed description of the method to be followed to achieve compliance, specifying the anticipated dates that the following steps will be taken:(1) dates that contracts for emission control and monitoring systems will be awarded or dates that orders will be issued for the purchase of component parts to accomplish emission control or process modification;(2) date of initiation of on-site construction or installation of emission control equipment or process modification;(3) date that on-site construction or installation of emission control equipment or process modification is to be completed; and(4) date that final compliance is to be achieved.</content><note type="source"><p>Source Note: The provisions of this §117.4150 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4200"><num value="117.4200">§117.4200</num><heading>Applicability</heading><content>The emission specifications in §117.4205 of this title (relating to Emission Specifications) apply to all nitric acid production units in the state, with the exception that, for nitric acid production units located in applicable ozone nonattainment areas, the emission specifications of §117.4105 of this title (relating to Emission Specifications) apply after November 15, 1999.</content><note type="source"><p>Source Note: The provisions of this §117.4200 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4205"><num value="117.4205">§117.4205</num><heading>Emission Specifications</heading><content>No person shall allow emissions of nitrogen oxides, calculated as nitrogen dioxide, from any nitric acid production unit to exceed 600 parts per million by volume.</content><note type="source"><p>Source Note: The provisions of this §117.4205 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scF/s117.4210"><num value="117.4210">§117.4210</num><heading>Applicability of Federal New Source Performance Standards</heading><content>None of the provisions of this subchapter (relating to Acid Manufacturing) may be construed to limit or preclude applicability of any provision of 40 Code of Federal Regulations Part 60, Subpart G (Standards of Performance for Nitric Acid Plants).</content><note type="source"><p>Source Note: The provisions of this §117.4210 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c117/scG"><num value="G">SUBCHAPTER G</num><heading>GENERAL MONITORING AND TESTING REQUIREMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c117/scG/s117.8000"><num value="117.8000">§117.8000</num><heading>Stack Testing Requirements</heading><content>(a) When required by this chapter, the owner or operator of a unit subject to this chapter shall conduct testing according to the requirements of this section. (b) The unit must be operated at the maximum rated capacity, or as near as practicable. Compliance must be determined by the average of three one-hour emission test runs. Shorter test times may be used if approved by the executive director. (c) Testing must be performed using the following test methods: (1) Test Method 7E or 20 (40 Code of Federal Regulations (CFR), Part 60, Appendix A) for nitrogen oxides (NO X ); (2) Test Method 10, 10A, or 10B (40 CFR Part 60, Appendix A) for carbon monoxide (CO); (3) Test Method 3A or 20 (40 CFR Part 60, Appendix A) for oxygen (O2); (4) for units that inject ammonia or urea to control NOX emissions, the Phenol-Nitroprusside Method, the Indophenol Method, or the United States Environmental Protection Agency (EPA) Conditional Test Method 27 for ammonia; (5) Test Method 2 (40 CFR Part 60, Appendix A) for exhaust gas flow and following the measurement site criteria of Test Method 1, §11.1 (40 CFR Part 60, Appendix A), or Test Method 19 (40 CFR Part 60, Appendix A) for exhaust gas flow in conjunction with the measurement site criteria of Performance Specification 2, §8.1.3 (40 CFR Part 60, Appendix B); or (6) American Society for Testing and Materials (ASTM) Method D1945-91 or ASTM Method D3588-93 for fuel composition; ASTM Method D1826-88 or ASTM Method D3588-91 for calorific value; or alternate methods as approved by the executive director and the EPA.(d) EPA-approved alternate test methods or minor modifications to the test methods specified in subsection (c) of this section may be used, as approved by the executive director, as long as the minor modifications meet the following conditions: (1) the change does not affect the stringency of the applicable emission specification; (2) the change affects only a single source or facility application.(e) An owner or operator that chooses to install or relocate a boiler or process heater temporarily at an account for less than 60 consecutive calendar days may substitute the following in lieu of the requirements of subsections (b) - (d) of this section for stack testing required by this chapter. For the purposes of this subsection, the term "relocate" means to newly install at an account, as defined in §101.1 of this title (relating to Definitions), a boiler or process heater from anywhere outside of that account.(1) The owner or operator may use the results of previous testing conducted on the same boiler or process heater conducted according to subsections (b) - (d) of this section or a manufacturer's guarantee of performance. If previous testing is used, the owner or operator of the site temporarily installing the boiler or process heater shall maintain a record of the previous test report as specified by the recordkeeping requirements under this chapter applicable to the site.(2) The owner or operator shall physically remove the boiler or process heater from the account no later than 60 consecutive calendar days after the unit was installed at the account or comply with the testing requirements as specified in subsections (b) - (d) of this section.(3) Extensions to the 60 consecutive calendar days limitation of this subsection will not be provided.(f) ASTM Method D6348-03 may be used to determine NOX or CO emissions from stationary internal combustion engines in lieu of the test methods for NOX or CO specified in subsection (c) of this section if the owner or operator of the stationary engine subject to the testing requirements of this section meets the conditions of this subsection. All other applicable requirements in subsection (c) of this section continue to apply.(1) Written notification of the use of ASTM Method D6348-03 must be submitted to the appropriate regional office and any local air pollution control agency having jurisdiction at least 15 days in advance of the date of testing.(2) The analyte spiking procedure in Annex A5 to ASTM Method D6348-03 must be performed using NOX calibration gas standards certified for total NOX . (3) All requirements outlined in Annexes A1 through A8 to ASTM Method D6348-03 must be followed. The test report must contain the information specified in §117.8010 of this title (relating to Compliance Stack Test Reports) in addition to information demonstrating compliance with all requirements of ASTM Method D6348-03, including Annexes A1 through A8.(4) Minor modifications to ASTM Method D6348-03 may be used, as approved by the executive director, as long as the minor modifications meet the conditions of subsection (d)(1) and (2) of this section.</content><note type="source"><p>Source Note: The provisions of this §117.8000 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965; amended to be effective March 26, 2020, 45 TexReg 2013.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scG/s117.8010"><num value="117.8010">§117.8010</num><heading>Compliance Stack Test Reports</heading><content>Compliance stack test reports of testing performed in accordance with §117.8000 of this title (relating to Stack Testing Requirements), or if otherwise specified in this chapter, must include the following minimum contents. (1) Introductory information. Background information pertinent to the test must include: (A) company name, address, and name of company official responsible for submitting report; (B) name and address of testing organization; (C) names of persons present, dates, and location of test; (D) schematic drawings of the unit being tested, showing emission points, sampling sites, and stack cross-section with the sampling points labeled and dimensions indicated; (E) description of the process being sampled; and (F) facility identification number used to identify the unit in the final control plan. (2) Summary information. Summary information must include: (A) a summary of emission rates found, reported in the units of the applicable emission limits and averaging periods, and compared with the applicable emission specification; (B) the maximum rated capacity, normal maximum capacity, and actual operating level of the unit during the test (in million British thermal units, horsepower, or megawatts, as applicable), and description of the method used to determine such operating level; (C) the operating parameters of any active nitrogen oxides (NOX ) control equipment during the test (for example, percent flue gas recirculation, ammonia flow rate, etc); and (D) documentation that no changes to the unit have occurred since the compliance test was conducted that could result in a significant change in NOX emissions. (3) Procedure. The description of the procedures used and description of the operation of the sampling train and process during the test must include: (A) a schematic drawing of the sampling devices used with each component designated and explained in a legend; (B) a brief description of the method used to operate the sampling train and the procedure used to recover samples; and (C) deviation from reference methods, if any. (4) Analytical technique. A brief description of all analytical techniques used to determine the emissions from the source must be provided. (5) Data and calculations. All data and calculations must be provided, including: (A) field data collected on raw data sheets; (B) log of process operating levels, including fuel data; (C) laboratory data, including blanks, tare weights, and results of analysis; and (D) emission calculations. (6) Chain of custody. A listing of the chain of custody of the emission or fuel test samples, as applicable, must be provided. (7) Appendix. The appendices must include: (A) calibration work sheets for sampling equipment; (B) collection of process logs of process parameters; (C) brief resume/qualifications of test personnel; and (D) description of applicable continuous monitoring system, as applicable. (8) Monitor certification reports. Monitor certification reports must contain: (A) information that demonstrates compliance with the certification requirements of §117.8100(a) or (b) of this title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources) for any continuous emissions monitoring system or predictive emissions monitoring system, as applicable; and (B) the relative accuracy test audit information specified in 40 Code of Federal Regulations Part 60, Appendix B, Performance Specification 2, §8.5.</content><note type="source"><p>Source Note: The provisions of this §117.8010 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scG/s117.8100"><num value="117.8100">§117.8100</num><heading>Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources</heading><content>(a) Continuous emissions monitoring system (CEMS) requirements. When required by this chapter, the owner or operator of any CEMS shall comply with the following. (1) Except as specified in paragraph (5) of this subsection, the CEMS must meet the requirements of 40 Code of Federal Regulations (CFR) Part 60 as follows: (A) §60.13; (B) Appendix B: (i) Performance Specification 2, for nitrogen oxides (NOX ) in terms of the applicable standard (in parts per million by volume (ppmv), pounds per million British thermal units (lb/MMBtu), or grams per horsepower-hour (g/hp-hr)). An alternative relative accuracy requirement of ± 2.0 ppmv from the reference method mean value is allowed; (ii) Performance Specification 3, for diluent; and (iii) Performance Specification 4, for carbon monoxide (CO), for owners or operators electing to use a CO CEMS; and (C) after the final applicable compliance date or date of required submittal of CEMS performance evaluation, conduct audits in accordance with §5.1 of Appendix F, quality assurance procedures for NOX , CO, and diluent analyzers, except that a cylinder gas audit or relative accuracy audit may be performed in lieu of the annual relative accuracy test audit (RATA) required in §5.1.1. If the optional alternative relative accuracy requirement of subparagraph (B)(i) of this paragraph (or equivalent) from the reference method mean value is used, then an annual RATA must be performed. (2) The owner or operator shall monitor diluent, either oxygen (O2) or carbon dioxide (CO 2), unless using an exhaust flow meter that meets the flow monitoring specifications of 40 CFR Part 60, Appendix B, Performance Specification 6 or 40 CFR Part 75, Appendix A. (3) One CEMS may be shared among units or among multiple exhaust stacks on a single unit, provided: (A) the exhaust stream of each stack is analyzed separately; and (B) the CEMS meets the certification requirements of paragraph (1) of this subsection for each stack while the CEMS is operating in the time-shared mode. (4) Each individual stack must be analyzed separately for units with multiple exhaust stacks. (5) As an alternative to paragraph (1) of this subsection, an owner or operator may choose to comply with the CEMS requirements of 40 CFR Part 75 as follows: (A) general operation requirements in Subpart B, §75.10(a)(2); (B) certification procedures and test methods in Subpart C, §75.20(c) and §75.22; (C) recordkeeping requirements of the monitoring plan in Subpart D, §75.53(a) - (c); (D) appropriate specifications and test procedures in Appendix A, as follows: (i) §1 (Installation and Measurement Location); (ii) §2 (Equipment Specifications); (iii) §3 (Performance Specifications); (iv) §4 (Data Acquisition and Handling Systems); (v) §5 (Calibration Gas); (vi) §6 (Certification Tests and Procedures); and (vii) meet either the relative accuracy requirement of 40 CFR Part 75 in percentage only, or the alternative relatively accuracy requirement of ± 2.0 ppmv from the reference method mean value; and (E) appropriate quality assurance/quality control procedures in Appendix B, as follows: (i) §1 (Quality Assurance/Quality Control Program); and (ii) §2 (Frequency of Testing). (6) The CEMS is subject to the approval of the executive director. (b) Predictive emissions monitoring system (PEMS) requirements. When required by this chapter, the owner or operator of any PEMS shall comply with the following. (1) The owner or operator shall monitor diluent, either O2 or CO2: (A) using a CEMS: (i) in accordance with subsection (a)(1)(B)(ii) of this section; or (ii) with a similar alternative method approved by the executive director and the United States Environmental Protection Agency; or (B) using a PEMS. (2) Any PEMS must meet the requirements of 40 CFR Part 75, Subpart E, except as provided in paragraphs (3) and (4) of this subsection. (3) The owner or operator may vary from 40 CFR Part 75, Subpart E if the owner or operator: (A) demonstrates to the satisfaction of the executive director and the United States Environmental Protection Agency that the alternative is substantially equivalent to the requirements of 40 CFR Part 75, Subpart E; or (B) demonstrates to the satisfaction of the executive director that the requirement is not applicable. (4) The owner or operator may substitute the following as an alternative to the test procedure of Subpart E for any unit: (A) perform the following alternative initial certification tests: (i) conduct initial RATA at low, medium, and high levels of the key operating parameter affecting NOX using 40 CFR Part 60, Appendix B: (I) Performance Specification 2, subsection 13.2, pertaining to NOX , in terms of the applicable standard (in ppmv, lb/MMBtu, or g/hp-hr). An alternative relative accuracy requirement of ± 2.0 ppmv from the reference method mean value is allowed; (II) Performance Specification 3, subsection 13.2, pertaining to O2 or CO2; and (III) Performance Specification 4, subsection 13.2, pertaining to CO, for owners or operators electing to use a CO PEMS; and (ii) conduct an F-test, a t-test, and a correlation analysis using 40 CFR Part 75, Subpart E at low, medium, and high levels of the key operating parameter affecting NOX : (I) calculations must be based on a minimum of 30 successive emission data points at each tested level that are either 15-minute, 20-minute, or hourly averages; (II) the F-test must be performed separately at each tested level; (III) the t-test and the correlation analysis must be performed using all data collected at the three tested levels; (IV) waivers from the statistical tests and default reference method standard deviation values for the F-test may be allowed according to the TNRCC PEMS Protocol Draft, May 16, 1994; (V) the correlation analysis may only be temporarily waived following review of the waiver request submittal if: (-a-) the process design is such that it is technically impossible to vary the process to result in a concentration change sufficient to allow a successful correlation analysis statistical test. Any waiver request must also be accompanied with documentation of the reference method measured concentration, and documentation that it is less than 50% of the emission limit or standard. The waiver must be based on the measured value at the time of the waiver. Should a subsequent RATA effort identify a change in the reference method measured value by more than 30%, the statistical test must be repeated at the next RATA effort to verify the successful compliance with the correlation analysis statistical test requirement; or (-b-) the data for a measured compound (e.g., NO X , O2) are determined to be autocorrelated according to the procedures of 40 CFR §75.41(b)(2). A complete analysis of autocorrelation with support information must be submitted with the request for waiver. The statistical test must be repeated at the next RATA effort to verify the successful compliance with the correlation analysis statistical test requirement; and (VI) all requests for waivers must be submitted to the executive director for review. The executive director shall approve or deny each waiver request; (B) further demonstrate PEMS accuracy and precision for at least one unit of a category of equipment by performing RATA and statistical testing in accordance with subparagraph (A) of this paragraph for each of three successive quarters, beginning: (i) no sooner than the quarter immediately following initial certification; and (ii) no later than the first quarter following the final compliance date; and (C) after the final applicable compliance date, perform RATA for each unit: (i) at normal load operations; (ii) using the Performance Specifications of subparagraph (A)(i)(I) - (III) of this paragraph; and (iii) at the following frequency: (I) semiannually; or (II) annually, if following the first semiannual RATA, the relative accuracy during the previous audit for each compound monitored by PEMS is less than or equal to 7.5% (or within ± 2.0 ppmv) of the mean value of the reference method test data at normal load operation; or alternatively: (-a-) for diluent, is no greater than 1.0% O 2 or CO2, for diluent measured by reference method at less than 5% by volume; or (-b-) for CO, is no greater than 5.0 ppmv. (5) The owner or operator shall, for each alternative fuel fired in a unit, certify the PEMS in accordance with paragraph (4)(A) of this subsection unless the alternative fuel effects on NO X , CO, and O2 (or CO 2) emissions were addressed in the model training process. (6) The PEMS is subject to the approval of the executive director. (c) Monitoring system certification reports. Reports of any RATA performed in accordance with this section must comply with §117.8010 of this title (relating to Compliance Stack Test Reports).</content><note type="source"><p>Source Note: The provisions of this §117.8100 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scG/s117.8110"><num value="117.8110">§117.8110</num><heading>Emission Monitoring System Requirements for Utility Electric Generation Sources</heading><content>(a) Continuous emissions monitoring system (CEMS) requirements. When required by this chapter, the owner or operator of any CEMS shall comply with the following.(1) The CEMS must be installed, calibrated, maintained, and operated in accordance with 40 Code of Federal Regulations (CFR) Part 75 or 40 CFR Part 60, as applicable.(2) One CEMS may be shared among units, provided:(A) the exhaust stream of each unit is analyzed separately; and(B) the CEMS meets the applicable certification requirements of paragraph (1) of this subsection for each exhaust stream.(b) Predictive emissions monitoring system (PEMS) requirements. When required by this chapter, the owner or operator of any PEMS shall comply with the following.(1) The owner or operator shall monitor diluent, either oxygen or carbon dioxide:(A) using a CEMS:(i) in accordance with subsection (a) of this section; or(ii) with a similar alternative method approved by the executive director and the United States Environmental Protection Agency; or(B) using a PEMS.(2) Any PEMS for units subject to the requirements of 40 CFR Part 75 must meet the requirements of 40 CFR Part 75, Subpart E, §§75.40 - 75.48.(3) Any PEMS for units not subject to the requirements of 40 CFR Part 75 must meet the requirements of either:(A) 40 CFR Part 75, Subpart E, §§75.40 - 75.48; or(B) §117.8100(b) of this title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources).</content><note type="source"><p>Source Note: The provisions of this §117.8110 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scG/s117.8120"><num value="117.8120">§117.8120</num><heading>Carbon Monoxide (CO) Monitoring</heading><content>When required by this chapter, the owner or operator shall monitor carbon monoxide (CO) exhaust emissions from an affected unit using one or more of the following methods: (1) install, calibrate, maintain, and operate a: (A) continuous emissions monitoring system (CEMS) in accordance with §117.8100(a) or §117.8110(a) of this title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources; and Emission Monitoring System Requirements for Utility Electric Generation Sources), as applicable; or (B) predictive emissions monitoring system (PEMS) in accordance with §117.8100(b) or §117.8110(b) of this title, as applicable; or (2) sample CO as follows: (A) with a portable analyzer (or 40 Code of Federal Regulations (CFR) Part 60, Appendix A reference method test apparatus) after manual combustion tuning or manual burner adjustments conducted for the purpose of minimizing nitrogen oxides (NOX ) emissions whenever, following such manual changes, either of the following occur: (i) NOX emissions are sampled with a portable analyzer or 40 CFR Part 60, Appendix A reference method test apparatus; or (ii) the resulting NOX emissions measured by CEMS or predicted by PEMS are lower than levels when CO emissions data was previously gathered; and (B) sample CO emissions using the test methods and procedures of 40 CFR Part 60 in conjunction with any relative accuracy test audit of the NOX and diluent analyzer.</content><note type="source"><p>Source Note: The provisions of this §117.8120 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scG/s117.8130"><num value="117.8130">§117.8130</num><heading>Ammonia Monitoring</heading><content>When required by this chapter, one of the following ammonia monitoring procedures must be used to demonstrate compliance with the applicable ammonia emission specifications of this chapter for gas-fired or liquid-fired units that inject urea or ammonia into the exhaust stream for nitrogen oxides (NOX ) control. (1) Mass balance. Ammonia emissions are calculated as the difference between the input ammonia, measured by the ammonia injection rate, and the ammonia reacted, measured by the differential NOX upstream and downstream of the control device that injects urea or ammonia into the exhaust stream. The ammonia emissions must be calculated using the following equation. Attached Graphic(2) Oxidation of ammonia to nitric oxide (NO). Convert ammonia to NO using a molybdenum oxidizer and measure ammonia slip by difference using a NO analyzer. The NO analyzer must be quality assured in accordance with the manufacturer's specifications and with a quarterly cylinder gas audit with a 10 parts per million by volume (ppmv) reference sample of ammonia passed through the probe and confirming monitor response to within ± 2.0 ppmv. (3) Stain tubes. Measure ammonia using a sorbent or stain tube device specific for ammonia measurement in the 5.0 to 10.0 ppmv range. The frequency of sorbent/stain tube testing must be daily for the first 60 days of operation. After the first 60 days of operation, the frequency may be reduced to weekly testing if operating procedures have been developed to prevent excess amounts of ammonia from being introduced in the control device and when operation of the control device has been proven successful with regard to controlling ammonia slip. Daily sorbent or stain tube testing must resume when the catalyst is within 30 days of its useful life expectancy. Every effort must be made to take at least one weekly sample near the normal highest ammonia injection rate. (4) Other methods. Monitor ammonia using another continuous emissions monitoring system or predictive emissions monitoring system procedure subject to prior approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §117.8130 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scG/s117.8140"><num value="117.8140">§117.8140</num><heading>Emission Monitoring for Engines</heading><content>(a) Periodic testing. When required by this chapter, the owner or operator of any stationary internal combustion engine shall test engine nitrogen oxides (NOX ) and carbon monoxide (CO) emissions as follows. (1) The methods specified in §117.8000 of this title (relating to Stack Testing Requirements) must be used. (2) The owner or operators shall sample: (A) on a biennial calendar basis; or (B) within 15,000 hours of engine operation after the previous emission test, under the following conditions: (i) install and operate an elapsed operating time meter; and (ii) submit, in writing, to the executive director and any local air pollution agency having jurisdiction, biennially after the initial demonstration of compliance: (I) documentation of the actual recorded hours of engine operation since the previous emission test; and (II) an estimate of the date of the next required sampling. (3) Engines used exclusively in emergency situations are not required to conduct the testing specified in paragraph (2) of this subsection. (b) Proper operation. When required by this chapter, the owner or operator of any stationary internal combustion engine shall check the engine for proper operation by recorded measurements of engine NO X and CO emissions at least quarterly and as soon as practicable within two weeks after each occurrence of engine maintenance that may reasonably be expected to increase emissions, oxygen sensor replacement, or catalyst cleaning or catalyst replacement. Stain tube indicators specifically designed to measure NOX concentrations may be acceptable for this documentation, provided a hot air probe or equivalent device is used to prevent error due to high stack temperature, and three sets of concentration measurements are made and averaged. Portable NOX analyzers are also acceptable for this documentation. Quarterly emission testing is not required for those engines whose monthly run time does not exceed ten hours. This exemption does not diminish the requirement to test emissions after the installation of controls, major repair work, and any time the owner or operator believes emissions may have changed.</content><note type="source"><p>Source Note: The provisions of this §117.8140 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c117/scH"><num value="H">SUBCHAPTER H</num><heading>ADMINISTRATIVE PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9000"><num value="117.9000">§117.9000</num><heading>Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Major Sources</heading><content>The owner or operator of each industrial, commercial, and institutional source in the Beaumont-Port Arthur ozone nonattainment area shall comply with the requirements of Subchapter B, Division 1 of this chapter (relating to Beaumont-Port Arthur Ozone Nonattainment Area Major Sources) as soon as practicable, but no later than the dates specified in this section. (1) Reasonably available control technology (RACT). The owner or operator shall for all units, comply with the requirements of Subchapter B, Division 1 of this chapter, except as specified in paragraph (2) of this section (relating to lean-burn engines) and paragraph (3) of this section (relating to emission specifications for attainment demonstration), by November 15, 1999 (final compliance date), and submit to the executive director: (A) for units operating without a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS), the results of applicable tests for initial demonstration of compliance as specified in §117.135 of this title (relating to Initial Demonstration of Compliance); by April 1, 1994, or as early as practicable, but in no case later than November 15, 1999; (B) for units operating with CEMS or PEMS in accordance with §117.140 of this title (relating to Continuous Demonstration of Compliance), the results of: (i) the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in §117.8100(a)(1)(A) and (B) and (b)(2) - (4)(A) of this title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources); and (ii) the applicable tests for the initial demonstration of compliance as specified in §117.135 of this title; (iii) no later than: (I) November 15, 1999, for units complying with the nitrogen oxides (NOX ) emission specification on an hourly average; and (II) January 15, 2000, for units complying with the NOX emission specification on a rolling 30-day average; (C) a final control plan for compliance in accordance with §117.152 of this title (relating to Final Control Plan Procedures for Reasonably Available Control Technology), no later than November 15, 1999; and (D) the first semiannual report required by §117.145(d) or (e) of this title (relating to Notification, Recordkeeping, and Reporting Requirements), covering the period November 15, 1999, through December 31, 1999, no later than January 31, 2000. (2) Lean-burn engines. The owner or operator shall for each lean-burn, stationary, reciprocating internal combustion engine subject to §117.105(e) of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)), comply with the requirements of Subchapter B, Division 1 of this chapter for those engines as soon as practicable, but no later than November 15, 2001 (final compliance date for lean-burn engines); and (A) no later than November 15, 2001, submit a revised final control plan that contains: (i) the information specified in §117.152 of this title as it applies to the lean-burn engines; and (ii) any other revisions to the source's final control plan as a result of complying with the lean-burn engine emission specifications; and (B) no later than January 31, 2002, submit the first semiannual report required by §117.145(e) of this title covering the period November 15, 2001, through December 31, 2001. (3) Emission specifications for attainment demonstration. The owner or operator shall comply with the requirements of §117.110(a) of this title (relating to Emission Specifications for Attainment Demonstration) as soon as practicable, but no later than: (A) May 1, 2003, demonstrate that at least two-thirds of the NOX emission reductions required by §117.110(a) of this title have been accomplished, as measured either by: (i) the total number of units required to reduce emissions in order to comply with §117.110(a) of this title using direct compliance with the emission specifications, counting only units still required to reduce after May 11, 2000; or (ii) the total amount of emissions reductions required to comply with §117.110(a) of this title using the alternative methods to comply, either: (I) §117.115 of this title (relating to Alternative Plant-Wide Emission Specifications); (II) §117.123 of this title (relating to Source Cap); or (III) §117.9800 of this title (relating to Use of Emission Credits for Compliance); (B) May 1, 2003, submit to the executive director: (i) identification of enforceable emission limits that satisfy the conditions of subparagraph (A) of this paragraph; (ii) for units operating without CEMS or PEMS or for units operating with CEMS or PEMS and complying with the NO X emission limit on an hourly average, the results of applicable tests for initial demonstration of compliance as specified in §117.135 of this title; (iii) for units newly operating with CEMS or PEMS to comply with the monitoring requirements of §117.140(c)(1)(C) of this title or §117.123 of this title, the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in §117.8100(a)(1)(A) and (B) and (b)(2) - (4)(A) of this title; (iv) the information specified in §117.154 of this title (relating to Final Control Plans Procedures for Attainment Demonstration Emission Specifications); and (v) any other revisions to the source's final control plan as a result of complying with the emission specifications in §117.110(a) of this title; (C) July 31, 2003, submit to the executive director: (i) the applicable tests for the initial demonstration of compliance as specified in §117.135 of this title, for units complying with the NOX emission specification on a rolling 30-day average; and (ii) the first semiannual report required by §117.123(e) and §117.145(e) of this title, covering the period May 1, 2003, through June 30, 2003; (D) May 1, 2005, comply with §117.110(a) of this title; (E) May 1, 2005, submit a revised final control plan that contains: (i) a demonstration of compliance with §117.110(a) of this title; (ii) the information specified in §117.154 of this title; and (iii) any other revisions to the source's final control plan as a result of complying with the emission specifications in §117.110(a) of this title; and (F) July 31, 2005, submit to the executive director the applicable tests for the initial demonstration of compliance as specified in §117.135 of this title, if using the 30-day average source cap NO X emission limit to comply with the emission specifications in §117.110(a) of this title.</content><note type="source"><p>Source Note: The provisions of this §117.9000 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9010"><num value="117.9010">§117.9010</num><heading>Compliance Schedule for Bexar County Ozone Nonattainment Area Major Sources</heading><content>(a) The owner or operator of any stationary source of nitrogen oxides (NOX ) in the Bexar County ozone nonattainment area that is a major source of NOX and is subject to the requirements of Subchapter B, Division 2 of this chapter (relating to Bexar County Ozone Nonattainment Area Major Sources) shall comply with the requirements of Subchapter B, Division 2 of this chapter as soon as practicable, but no later than January 1, 2025.(b) The owner or operator of any stationary source of NOX that becomes subject to the requirements of Subchapter B, Division 2 of this chapter on or after the applicable compliance date specified in subsection (a) of this section, shall comply with the requirements of Subchapter B, Division 2 of this chapter as soon as practicable, but no later than 60 days after becoming subject.</content><note type="source"><p>Source Note: The provisions of this §117.9010 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9020"><num value="117.9020">§117.9020</num><heading>Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources</heading><content>The owner or operator of each industrial, commercial, and institutional source in the Houston-Galveston-Brazoria ozone nonattainment area shall comply with the requirements of Subchapter B, Division 3 of this chapter (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Major Sources) as soon as practicable, but no later than the dates specified in this section. (1) Reasonably available control technology. The owner or operator shall, for all units, comply with the requirements of Subchapter B, Division 3 of this chapter, except as specified in paragraph (2) of this section, by November 15, 1999 (final compliance date); and (A) submit a plan for compliance in accordance with §117.350 of this title (relating to Initial Control Plan Procedures) according to the following schedule: (i) for major sources of nitrogen oxides (NO X ) that have units subject to emission specifications under this chapter, submit an initial control plan for all such units no later than April 1, 1994; (ii) for major sources of NOX that have no units subject to emission specifications under this chapter, submit an initial control plan for all such units no later than September 1, 1994; and (iii) for major sources of NOX subject to either clause (i) or (ii) of this subparagraph, submit the information required by §117.350(c)(6), (7), and (9) of this title no later than September 1, 1994; (B) install all NOX abatement equipment and implement all NOX control techniques no later than November 15, 1999; and (C) submit to the executive director: (i) for units operating without a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS), the results of applicable tests for initial demonstration of compliance as specified in §117.335 of this title (relating to Initial Demonstration of Compliance); by April 1, 1994, or as early as practicable, but in no case later than November 15, 1999; (ii) for units operating with CEMS or PEMS in accordance with §117.340 of this title (relating to Continuous Demonstration of Compliance), submit the results of: (I) the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in §117.8100(a)(1)(A) and (B) and (b)(2) - (4)(A) of this title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources); and (II) the applicable tests for the initial demonstration of compliance as specified in §117.335 of this title; (III) no later than: (-a-) November 15, 1999, for units complying with the NOX emission specification on an hourly average; and (-b-) January 15, 2000, for units complying with the NOX emission specification on a rolling 30-day average; (iii) a final control plan for compliance in accordance with §117.352 of this title (relating to Final Control Plan Procedures for Reasonably Available Control Technology), no later than November 15, 1999; and (iv) the first semiannual report required by §117.345(d) or (e) of this title (relating to Notification, Recordkeeping, and Reporting Requirements), covering the period November 15, 1999, through December 31, 1999, no later than January 31, 2000. (2) Emission specifications for attainment demonstration. (A) The owner or operator of any unit subject to §117.310(a) (relating to Emission Specifications for Attainment Demonstration) shall comply with the requirements of §117.340 of this title as follows. (i) As soon as practicable, but no later than March 31, 2005, the owner or operator shall install any totalizing fuel flow meters, run time meters, and emissions monitors required by §117.340 of this title, except that if flue gas cleanup (for example, controls that use a chemical reagent for reduction of NOX ) is installed on a unit before March 31, 2005, then the emissions monitors required by §117.340 of this title must be installed and operated at the time of startup following the installation of flue gas cleanup on that unit. However, an owner or operator may choose to demonstrate compliance with the ammonia monitoring requirements through annual ammonia stack testing until March 31, 2005. (I) Within 60 days after startup of a unit following installation of emissions monitors, the owner or operator shall submit to the executive director the results of the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in §117.8100(a)(1)(A) and (B) and (b)(2) - (4)(A) of this title; or (II) If the unit is shut down as of March 31, 2005, the CEMS or PEMS performance evaluation and quality assurance procedures must be submitted to the executive director within 60 days after the startup of the unit after March 31, 2005. (ii) Within 60 days after startup of a unit following installation of emissions controls, the owner or operator shall submit to the executive director the results of: (I) stack tests conducted in accordance with §117.335 of this title. For a stack test conducted before March 31, 2005, on a unit not equipped with CEMS or PEMS that CEMS or PEMS must be installed no later than March 31, 2005, the requirements of §117.335(c) of this title do not apply; or, as applicable, (II) the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in §117.8100(a)(1)(A) and (B) and (b)(2) - (4)(A) of this title. (B) The owner or operator of each electric generating facility (EGF) shall: (i) no later than June 30, 2001, submit to the executive director the certification of level of activity, Hi , specified in §117.320 of this title (relating to System Cap) for each EGF in operation as of January 1, 1997; (ii) no later than 60 days after the end of the first five years of operation, submit to the executive director the certification of activity level, Hi , based on any two consecutive third quarters of actual level of activity data available from the first five years of operation as specified in §117.320 of this title for each EGF not in operation prior to January 1, 1997; and (iii) comply with the requirements of §117.320 of this title as soon as practicable, but no later than March 31, 2007. (C) For any units subject to §117.310(a) of this title that stack testing or the CEMS or PEMS performance evaluation and quality assurance has not been conducted under subparagraph (A) of this paragraph or units placed into service after March 31, 2005, that do not have flue gas cleanup, the owner or operator shall submit to the executive director as soon as practicable, but no later than March 31, 2007, the results of: (i) stack tests conducted in accordance with §117.335 of this title; or, as applicable, (ii) the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in §117.8100(a)(1)(A) and (B) and (b)(2) - (4)(A) of this title. (D) The owner or operator shall comply with the emission reduction requirements of Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program) as soon as practicable, but no later than the appropriate dates specified in that program. (E) For diesel and dual-fuel engines, the owner or operator shall comply with the restriction on hours of operation for maintenance or testing, and associated recordkeeping, as soon as practicable, but no later than April 1, 2002. (F) The owner or operator shall comply with all other requirements of Subchapter B, Division 3 of this chapter as soon as practicable, but no later than March 31, 2005. (G) The owner or operator of a unit that is subject to §117.310(a) of this title and will be permanently shut down on or before September 30, 2005, may elect to comply with §117.340(a) and (c) - (f) of this title by performing testing in lieu of the monitoring requirements, provided that following conditions are met: (i) submit written notification to the executive director no later than March 31, 2005, containing the following: (I) a list of units, by emission point number, that the owner or operator will permanently shut down on or before September 30, 2005; (II) the projected date(s) that each unit will be permanently shut down; and (III) the projected date(s) of the testing to be performed in accordance with clause (ii) of this subparagraph; (ii) the testing is performed in accordance with §117.335 of this title after March 31, 2005, and prior to September 30, 2005, while operating at maximum rated capacity, or as near thereto as practicable. For the time period from March 31, 2005, to September 30, 2005, the results of this testing must be used for demonstrating compliance with the emission specifications in §117.310(a) of this title or to quantify the emissions for units subject to the mass emissions cap and trade program of Chapter 101, Subchapter H, Division 3 of this title; (iii) for units that a totalizing fuel flow meter has not been installed as required in §117.340(a) of this title, the maximum rated capacity of the unit must be used to quantify the emissions for units subject to the mass emissions cap and trade program of Chapter 101, Subchapter H, Division 3 of this title; and (iv) if the unit is not shut down by September 30, 2005, the owner or operator will be considered in violation of this section as of March 31, 2005, and extensions beyond September 30, 2005, will not be granted.</content><note type="source"><p>Source Note: The provisions of this §117.9020 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9030"><num value="117.9030">§117.9030</num><heading>Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources</heading><content>(a) Reasonably available control technology emission specifications.(1) The owner or operator of any stationary source of nitrogen oxides (NOX ) in the Dallas-Fort Worth eight-hour ozone nonattainment area that is a major source of NOX and is subject to §117.405(a) or (b) of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT)) shall comply with the requirements of Subchapter B, Division 4 of this chapter (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Major Sources) as follows:(A) for units subject to the emission specification of §117.405(a) of this title located in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, or Tarrant Counties, or located at a source in Wise County that emits or has the potential to emit equal to or greater than 100 tons per year (tpy) of NOX :(i) submission of the initial control plan required by §117.450 of this title (relating to Initial Control Plan Procedures) was required by June 1, 2016;(ii) for units subject to the emission specification of §117.405(a) of this title as of January 1, 2017, compliance with all other requirements of Subchapter B, Division 4 of this chapter was required by January 1, 2017, and these units shall continue to comply with the requirements of Subchapter B, Division 4 of this chapter; and(iii) for units that became subject to the emission specification of §117.405(a) of this title after January 1, 2017, compliance is required as specified in paragraph (2) of this subsection;(B) for units subject to the emission specifications of §117.405(b) of this title located at sources in Wise County that emit or have the potential to emit equal to or greater than 100 tpy of NOX :(i) submission of the initial control plan required by §117.450 of this title was required by June 1, 2016;(ii) for units subject to the emission specifications of §117.405(b) of this title as of January 1, 2017, compliance with all other requirements of Subchapter B, Division 4 of this chapter was required by January 1, 2017, and these units shall continue to comply with the requirements of Subchapter B, Division 4 of this chapter; and(iii) for units that became subject to the emission specifications of §117.405(b) of this title after January 1, 2017, compliance is required as specified in paragraph (2) of this subsection;(C) for units subject to the emission specifications of §117.405 of this title located at sources in Wise County that emit or have the potential to emit equal to or greater than 50 tpy but less than 100 tpy of NOX :(i) submission of the initial control plan required by §117.450 of this title is required no later than January 15, 2021; and(ii) for units subject to the emission specifications of §117.405 of this title, compliance with all other requirements of Subchapter B, Division 4 of this chapter is required as soon as practicable, but no later than July 20, 2021; and(D) for units subject to the emission specifications of §117.405 of this title located at sources in Wise County that emit or have the potential to emit equal to or greater than 25 tpy but less than 50 tpy of NOX : (i) submission of the initial control plan required by §117.450(b) of this title is required no later than May 7, 2025; and(ii) compliance with all other requirements of Subchapter B, Division 4 of this chapter is required as soon as practicable, but no later than November 7, 2025.(2) The owner or operator of any stationary source of NOX that becomes subject to the requirements of §117.405 of this title on or after the applicable compliance date specified in paragraph (1) of this subsection, shall comply with the requirements of Subchapter B, Division 4 of this chapter as soon as practicable, but no later than 60 days after becoming subject.(b) Eight-hour ozone attainment demonstration emission specifications.(1) The owner or operator of any stationary source of NOX in the Dallas-Fort Worth eight-hour ozone nonattainment area that is a major source of NOX and is subject to §117.410(a) of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration) shall comply with the requirements of Subchapter B, Division 4 of this chapter as follows:(A) submit the initial control plan required by §117.450 of this title no later than June 1, 2008; and(B) for units subject to the emission specifications of §117.410(a) of this title, comply with all other requirements of Subchapter B, Division 4 of this chapter as soon as practicable, but no later than:(i) March 1, 2009, for units subject to §117.410(a)(1), (2), (4), (5), (6), (7)(A), (8), (10), and (14) of this title;(ii) March 1, 2010, for units subject to §117.410(a)(3), (7)(B), (9), (11), (12), and (13) of this title;(C) for diesel and dual-fuel engines, comply with the restriction on hours of operation for maintenance or testing in §117.410(f) of this title, and associated recordkeeping in §117.445(f)(9) of this title (relating to Notification, Recordkeeping, and Reporting Requirements), as soon as practicable, but no later than March 1, 2009; and(D) for any stationary gas turbine or stationary internal combustion engine claimed exempt using the exemption of §117.403(a)(7)(D), (8), or (9) of this title (relating to Exemptions), comply with the run time meter requirements of §117.440(i) of this title (relating to Continuous Demonstration of Compliance), and recordkeeping requirements of §117.445(f)(4) of this title, as soon as practicable, but no later than March 1, 2009.(2) The owner or operator of any stationary source of NOX that becomes subject to the requirements of Subchapter B, Division 4 of this chapter on or after the applicable compliance date specified in paragraph (1) of this subsection, shall comply with the requirements of Subchapter B, Division 4 of this chapter as soon as practicable, but no later than 60 days after becoming subject. (3) The owner or operator of any unit that is subject to the emission specifications in §117.410(a) of this title located at sources in the Dallas-Fort Worth eight-hour ozone nonattainment area that emit or have the potential to emit equal to or greater than 25 tpy but less than 50 tpy of NOX : (A) submission of the initial control plan required by §117.450(b) of this title is required no later than May 7, 2025; and(B) compliance with all other requirements of Subchapter B, Division 4 of this chapter is required as soon as practicable, but no later than November 7, 2025.(4) The owner or operator of any stationary source of NOX that becomes subject to the requirements of Subchapter B, Division 4 of this chapter on or after the applicable compliance date specified in paragraph (3) of this subsection, shall comply with the requirements of Subchapter B, Division 4 of this chapter as soon as practicable, but no later than 60 days after becoming subject.</content><note type="source"><p>Source Note: The provisions of this §117.9030 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965; amended to be effective March 26, 2020, 45 TexReg 2013; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9100"><num value="117.9100">§117.9100</num><heading>Compliance Schedule for Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources</heading><content>The owner or operator of each electric utility in the Beaumont-Port Arthur ozone nonattainment area shall comply with the requirements of Subchapter C, Division 1 of this chapter (relating to Beaumont-Port Arthur Ozone Nonattainment Area Utility Electric Generation Sources) as soon as practicable, but no later than the dates specified in this section. (1) Reasonably available control technology (RACT). The owner or operator shall for all units, comply with the requirements of Subchapter C, Division 1 of this chapter as soon as practicable, but no later than November 15, 1999 (final compliance date), except as specified in subparagraph (D) of this paragraph, relating to oil firing, and paragraph (2) of this section, relating to emission specifications for attainment demonstration: (A) conduct applicable continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) evaluations and quality assurance procedures as specified in §117.1040 of this title (relating to Continuous Demonstration of Compliance) according to the following schedules: (i) for equipment and software required under 40 Code of Federal Regulations (CFR) Part 75, no later than January 1, 1995, for units firing coal, and no later than July 1, 1995, for units firing natural gas or oil; and (ii) for equipment and software not required under 40 CFR Part 75, no later than November 15, 1999; (B) install all nitrogen oxides (NOX ) abatement equipment and implement all NOX control techniques no later than November 15, 1999; (C) submit to the executive director: (i) for units operating without CEMS or PEMS, the results of applicable tests for initial demonstration of compliance as specified in §117.1035 of this title (relating to Initial Demonstration of Compliance); by April 1, 1994, or as early as practicable, but in no case later than November 15, 1999; (ii) for units operating with CEMS or PEMS in accordance with §117.1040 of this title, the results of: (I) the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in §117.1040 of this title; and (II) the applicable tests for the initial demonstration of compliance as specified in §117.1035 of this title; (III) no later than: (-a-) November 15, 1999, for units complying with the NOX emission specification on an hourly average; and (-b-) January 15, 2000, for units complying with the NOX emission specification on a rolling 30-day average; (D) conduct applicable tests for initial demonstration of compliance with the NOX emission specification for fuel oil firing, in accordance with §117.1035(d)(2) of this title, and submit test results within 60 days after completion of such testing; and (E) submit a final control plan for compliance in accordance with §117.1052 of this title (relating to Final Control Plan Procedures for Reasonably Available Control Technology), no later than November 15, 1999. (2) Emission specifications for attainment demonstration. The owner or operator shall comply with the requirements of §117.1010(a) of this title (relating to Emission Specifications for Attainment Demonstration) as soon as practicable, but no later than: (A) May 1, 2003, demonstrate that at least two-thirds of the NOX emission reductions required by §117.1010(a) of this title have been accomplished, as measured either by: (i) the total number of units required to reduce emissions in order to comply with §117.1010(a) of this title using direct compliance with the emission specifications, counting only units still required to reduce after May 11, 2000; or (ii) the total amount of emissions reductions required to comply with §117.1010(a) of this title using the alternative methods to comply, either: (I) §117.1020 of this title (relating to System Cap); or (II) §117.9800 of this title (relating to Use of Emission Credits for Compliance); (B) May 1, 2003, submit to the executive director: (i) identification of enforceable emission limits that satisfy subparagraph (A) of this paragraph; (ii) the information specified in §117.1054 of this title (relating to Final Control Plan Procedures for Attainment Demonstration Emission Specifications) to comply with subparagraph (A) of this paragraph; and (iii) any other revisions to the source's final control plan as a result of complying with subparagraph (A) of this paragraph; (C) May 1, 2003, install CEMS or PEMS on previously exempt units and conduct applicable CEMS or PEMS evaluations and quality assurance procedures as specified in §117.1040 of this title; (D) July 31, 2003, submit to the executive director the applicable tests for the initial demonstration of compliance as specified in §117.1035 of this title, if using the 30-day average system cap to comply with subparagraph (A) of this paragraph; (E) May 1, 2005, comply with §117.1010(a) of this title; (F) May 1, 2005, submit a revised final control plan that contains: (i) a demonstration of compliance with §117.1010(a) of this title; (ii) the information specified in §117.1054 of this title; and (iii) any other revisions to the source's final control plan as a result of complying with the emission specifications in §117.1010(a) of this title; and (G) July 31, 2005, submit to the executive director the applicable tests for the initial demonstration of compliance as specified in §117.1035 of this title, if using the 30-day average system cap NO X emission limit to comply with the emission specifications in §117.1010(a) of this title.</content><note type="source"><p>Source Note: The provisions of this §117.9100 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9110"><num value="117.9110">§117.9110</num><heading>Compliance Schedule for Bexar County Ozone Nonattainment Area Utility Electric Generation Sources</heading><content>(a) The owner or operator of each electric utility in the Bexar County ozone nonattainment area that is subject to the requirements of Subchapter C, Division 2 of this chapter (relating to Bexar County Ozone Nonattainment Area Utility Electric Generation Sources) shall comply with the requirements of Subchapter C, Division 2 of this chapter as soon as practicable, but no later than January 1, 2025.(b) The owner or operator of any electric utility that becomes subject to the requirements of Subchapter C, Division 2 of this chapter on or after the applicable compliance date specified in subsection (a) of this section, shall comply with the requirements of Subchapter C, Division 2 of this chapter as soon as practicable, but no later than 60 days after becoming subject.</content><note type="source"><p>Source Note: The provisions of this §117.9110 adopted to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9120"><num value="117.9120">§117.9120</num><heading>Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources</heading><content>The owner or operator of each electric utility in the Houston-Galveston-Brazoria ozone nonattainment area shall comply with the requirements of Subchapter C, Division 3 of this chapter (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Utility Electric Generation Sources) as soon as practicable, but no later than the dates specified in this section. (1) Reasonably available control technology. The owner or operator shall, for all units, comply with the requirements of Subchapter C, Division 3 of this chapter as soon as practicable, but no later than November 15, 1999 (final compliance date), except as specified in subparagraph (D) of this paragraph, relating to oil firing, and paragraph (2) of this section: (A) conduct applicable continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) evaluations and quality assurance procedures as specified in §117.1240 of this title (relating to Continuous Demonstration of Compliance) according to the following schedules: (i) for equipment and software required under 40 Code of Federal Regulations (CFR) Part 75, no later than January 1, 1995, for units firing coal, and no later than July 1, 1995, for units firing natural gas or oil; and (ii) for equipment and software not required under 40 CFR Part 75, no later than November 15, 1999; (B) install all nitrogen oxides (NOX ) abatement equipment and implement all NOX control techniques no later than November 15, 1999; (C) submit to the executive director: (i) for units operating without CEMS or PEMS, the results of applicable tests for initial demonstration of compliance as specified in §117.1235 of this title (relating to Initial Demonstration of Compliance); by April 1, 1994, or as early as practicable, but in no case later than November 15, 1999; (ii) for units operating with CEMS or PEMS in accordance with §117.1240 of this title, the results of: (I) the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in §117.1240 of this title; and (II) the applicable tests for the initial demonstration of compliance as specified in §117.1235 of this title; (III) no later than: (-a-) November 15, 1999, for units complying with the NOX emission specification on an hourly average; and (-b-) January 15, 2000, for units complying with the NOX emission specification on a rolling 30-day average; (D) conduct applicable tests for initial demonstration of compliance with the NOX emission specification for fuel oil firing, in accordance with §117.1235(d)(2) of this title, and submit test results within 60 days after completion of such testing; and (E) submit a final control plan for compliance in accordance with §117.1252 of this title (relating to Final Control Plan Procedures for Reasonably Available Control Technology), no later than November 15, 1999. (2) Emission specifications for attainment demonstration. (A) The owner or operator of a unit subject to §117.1210(a) of this title (relating to Emission Specifications for Attainment Demonstration) shall comply with the requirements of §117.1240 of this title as soon as practicable, but no later than: (i) March 31, 2005, install any totalizing fuel flow meters and emissions monitors required by §117.1240 of this title, except that if flue gas cleanup (for example, controls that use a chemical reagent for reduction of NOX ) is installed on a unit before March 31, 2005, then the emissions monitors required by §117.1240 of this title must be installed and operated at the time of startup following the installation of flue gas cleanup on that unit. However, an owner or operator may choose to demonstrate compliance with the ammonia monitoring requirements through annual ammonia stack testing until March 31, 2005; and (ii) 60 days after startup of a unit following installation of emissions controls, submit to the executive director the results of: (I) stack tests conducted in accordance with §117.1235 of this title; or, as applicable, (II) the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in §117.1240 of this title. (B) The owner or operator shall: (i) no later than June 30, 2001, submit to the executive director the certification of level of activity, Hi , specified in §117.1220 of this title (relating to System Cap) for electric generating facilities (EGFs) in operation as of January 1, 1997; (ii) no later than 60 days after the second consecutive third quarter of actual level of activity level data are available, submit to the executive director the certification of activity level, H i , specified in §117.1220 of this title for EGFs not in operation prior to January 1, 1997; and (iii) comply with the requirements of §117.1220 of this title as soon as practicable, but no later than: (I) March 31, 2003, demonstrate that at least 50% of the NOX emission reductions have been accomplished, as measured by the difference between the highest 30-day average emissions measured in the 1997 - 1999 period and the system cap limit of §117.1220 of this title; and (II) March 31, 2004, submit the information specified in §117.1254 of this title (relating to Final Control Plan Procedures for Attainment Demonstration Emission Specifications); (III) March 31, 2004, demonstrate compliance with the system cap limit of §117.1220 of this title. (C) For any unit subject to §117.1210(a) of this title that stack testing or a CEMS or PEMS performance evaluation and quality assurance has not been conducted under subparagraph (A)(ii) of this paragraph, the owner or operator shall submit to the executive director as soon as practicable, but no later than March 31, 2007, the results of: (i) stack tests conducted in accordance with §117.1235 of this title; or, as applicable, (ii) the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in §117.1240 of this title. (D) The owner or operator shall comply with the emission reduction requirements of Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program) as soon as practicable, but no later than the appropriate dates specified in that program.</content><note type="source"><p>Source Note: The provisions of this §117.9120 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9130"><num value="117.9130">§117.9130</num><heading>Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources</heading><content>(a) Except as specified in subsection (b) of this section, the owner or operator of each electric utility in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, or Tarrant County shall comply with the requirements of Subchapter C, Division 4 of this chapter (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Utility Electric Generation Sources) as soon as practicable, but no later than as follows: (1) submit the initial control plan required by §117.1350 of this title (relating to Initial Control Plan Procedures) no later than June 1, 2008; and (2) comply with all other requirements of Subchapter C, Division 4 of this chapter as soon as practicable, but no later than March 1, 2009. (b) The owner or operator of each auxiliary steam boiler or stationary gas turbine placed into service after November 15, 1992 in Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, or Tarrant County shall comply with the requirements of Subchapter C, Division 4 of this chapter as soon as practicable, but no later than as follows: (1) submit the initial control plan required by §117.1350 of this title no later than June 1, 2016; and (2) comply with all other requirements of Subchapter C, Division 4 of this chapter as soon as practicable, but no later than January 1, 2017.(c) The owner or operator of each electric utility in Wise County shall comply with the requirements of Subchapter C, Division 4 of this chapter as soon as practicable, but no later than as follows: (1) submit the initial control plan required by §117.1350 of this title no later than June 1, 2016; and (2) comply with all other requirements of Subchapter C, Division 4 of this chapter as soon as practicable, but no later than January 1, 2017.(d) The owner or operator of each electric utility in the Dallas-Fort Worth eight-hour ozone nonattainment area of nitrogen oxides that becomes subject to the requirements of Subchapter C, Division 4 of this chapter on or after the applicable compliance date specified in subsection (a), (b), or (c) of this section, shall comply with the requirements of Subchapter C, Division 4 of this chapter as soon as practicable, but no later than 60 days after becoming subject.(e) Upon the date the commission publishes notice in the Texas Register that the Wise County nonattainment designation for the 2008 Eight-Hour Ozone National Ambient Air Quality Standard is no longer legally effective, the owner or operator of an electric utility located in Wise County is not required to comply with the requirements of Subchapter C, Division 4 of this chapter.</content><note type="source"><p>Source Note: The provisions of this §117.9130 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9200"><num value="117.9200">§117.9200</num><heading>Compliance Schedule for Houston-Galveston-Brazoria Ozone Nonattainment Area Minor Sources</heading><content>The owner or operator of each stationary source of nitrogen oxides (NOX ) in the Houston-Galveston-Brazoria ozone nonattainment area that is not a major source of NO X shall comply with the requirements of Subchapter D, Division 1 of this chapter (relating to Houston-Galveston-Brazoria Ozone Nonattainment Area Minor Sources) as follows. (1) For sources subject to Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program), the owner or operator shall: (A) install any totalizing fuel flow meters and run time meters required by §117.2035 of this title (relating to Monitoring and Testing Requirements) and begin keeping records of fuel usage as required by §117.2045 of this title (relating to Recordkeeping and Reporting Requirements) no later than March 31, 2005, except that if flue gas cleanup (for example, controls that use a chemical reagent for reduction of NOX ) is installed on a unit before March 31, 2005, then the emissions monitors required by §117.2035 of this title must be installed and operated at the time of startup following the installation of flue gas cleanup on that unit. However, an owner or operator may choose to demonstrate compliance with the ammonia monitoring requirements through annual ammonia stack testing until March 31, 2005; (B) no later than 60 days after startup of a unit following installation of emissions controls, submit to the executive director the results of: (i) stack tests conducted in accordance with §117.2035 of this title. For a stack test conducted before March 31, 2005, on a unit not equipped with a continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) that CEMS or PEMS must be installed no later than March 31, 2005, the requirements of §117.2035(e)(6) of this title do not apply; or, as applicable, (ii) the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in §117.8100(a)(1)(A) and (B) and (b)(2) - (4)(A) of this title (relating to Emission Monitoring System Requirements for Industrial, Commercial, and Institutional Sources). The applicable CEMS or PEMS performance evaluation and quality assurance procedures must be submitted no later than March 31, 2005, except that if the unit is shut down as of March 31, 2005, the CEMS or PEMS performance evaluation and quality assurance procedures must be submitted within 60 days after startup of the unit after March 31, 2005; (C) no later than March 31, 2005, for any units subject to §117.2010 of this title (relating to Emission Specifications) that stack testing or a CEMS or PEMS performance evaluation and quality assurance has not been conducted under subparagraph (B) of this paragraph, submit to the executive director the results of: (i) stack tests conducted in accordance with §117.2035 of this title; or, as applicable, (ii) the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in §117.8100(a)(1)(A) and (B) and (b)(2) - (4)(A) of this title; (D) comply with the emission reduction requirements of Chapter 101, Subchapter H, Division 3 of this title as soon as practicable, but no later than the appropriate dates specified in that program; (E) for diesel and dual-fuel engines, comply with the restriction on hours of operation for maintenance or testing, and associated recordkeeping, as soon as practicable, but no later than April 1, 2002; and (F) comply with all other requirements of Subchapter D, Division 1 of this chapter as soon as practicable, but no later than March 31, 2005. (2) For sources not subject to Chapter 101, Subchapter H, Division 3 of this title, the owner or operator shall: (A) install any totalizing fuel flow meters and run time meters required by §117.2035 of this title and begin keeping records of fuel usage as required by §117.2045 of this title no later than March 31, 2005, except that if flue gas cleanup (for example, controls that use a chemical reagent for reduction of NOX ) is installed on a unit before March 31, 2005, then the emissions monitors required by §117.2035 of this title must be installed and operated at the time of startup following the installation of flue gas cleanup on that unit. However, an owner or operator may choose to demonstrate compliance with the ammonia monitoring requirements through annual ammonia stack testing until March 31, 2005; (B) no later than 60 days after startup of a unit following installation of emissions controls, submit to the executive director the results of: (i) stack tests conducted in accordance with §117.2035 of this title. For a stack test conducted before March 31, 2005, on a unit not equipped with a CEMS or PEMS that CEMS or PEMS must be installed no later than March 31, 2005, the requirements of §117.2035(e)(6) of this title do not apply; or, as applicable, (ii) the applicable CEMS or PEMS performance evaluation and quality assurance procedures as specified in §117.8100(a)(1)(A) and (B) and (b)(2) - (4)(A) of this title. The applicable CEMS or PEMS performance evaluation and quality assurance procedures must be submitted no later than March 31, 2005, except that if the unit is shut down as of March 31, 2005, the CEMS or PEMS performance evaluation and quality assurance procedures must be submitted within 60 days after startup of the unit after March 31, 2005; (C) for diesel and dual-fuel engines, comply with the restriction on hours of operation for maintenance or testing, and associated recordkeeping, as soon as practicable, but no later than April 1, 2002; and (D) comply with all other requirements of Subchapter D, Division 1 of this chapter as soon as practicable, but no later than March 31, 2005.</content><note type="source"><p>Source Note: The provisions of this §117.9200 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9210"><num value="117.9210">§117.9210</num><heading>Compliance Schedule for Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Minor Sources</heading><content>(a) The owner or operator of any stationary source of nitrogen oxides (NOX ) in the Dallas-Fort Worth eight-hour ozone nonattainment area that is not a major source of NO X and is subject to the requirements of Subchapter D, Division 2 of this chapter (relating to Dallas-Fort Worth Eight-Hour Ozone Nonattainment Area Minor Sources) shall comply with the requirements of Subchapter D, Division 2 of this chapter as soon as practicable, but no later than: (1) March 1, 2009, for rich-burn stationary gas-fired reciprocating internal combustion engines; (2) March 1, 2010, for lean-burn stationary gas-fired reciprocating internal combustion engines; and (3) March 1, 2009, for diesel-fired and dual-fuel stationary, reciprocating internal combustion engines. (b) The owner or operator of any stationary source of NOX that becomes subject to the requirements of Subchapter D, Division 2 of this chapter on or after the applicable compliance date specified in subsection (a) of this section shall comply with the requirements of Subchapter D, Division 2 of this chapter as soon as practicable, but no later than 60 days after becoming subject.</content><note type="source"><p>Source Note: The provisions of this §117.9210 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9300"><num value="117.9300">§117.9300</num><heading>Compliance Schedule for Utility Electric Generation in East and Central Texas</heading><content>(a) The owner or operator of each utility electric power boiler or stationary gas turbine located in Atascosa, Bastrop, Bexar, Brazos, Calhoun, Cherokee, Fannin, Fayette, Freestone, Goliad, Gregg, Grimes, Harrison, Henderson, Hood, Hunt, Lamar, Limestone, Marion, McLennan, Milam, Morris, Nueces, Parker, Red River, Robertson, Rusk, Titus, Travis, Victoria, and Wharton Counties shall comply with the requirements of Subchapter E, Division 1 of this chapter (relating to Utility Electric Generation in East and Central Texas) as soon as practicable, but no later than the following dates:(1) except as provided in subparagraph (C) of this paragraph, May 1, 2003, for units owned by utilities subject to the cost-recovery provisions of Texas Utilities Code, §39.263(b):(A) the owner or operator shall use the period of May 1, 2003, through April 30, 2004, for the initial annual compliance period. Compliance for each subsequent annual period is on a calendar year basis. For example, the second annual compliance period is January 1, 2004, through December 31, 2004;(B) the updated final control plan required by §117.3054 of this title (relating to Final Control Plan Procedures) must be submitted by May 31, 2004, and by January 31, 2005; and(C) the owner or operator shall comply with the ammonia specification of §117.3010(2) of this title (relating to Emission Specifications) by May 1, 2005; and(2) May 1, 2005, for all other units:(A) the owner or operator shall use the period of May 1, 2005, through April 30, 2006, for the initial annual compliance period. Compliance for each subsequent annual period is on a calendar year basis. For example, the second annual compliance period is January 1, 2006, through December 31, 2006; and(B) the updated final control plan required by §117.3054 of this title must be submitted by May 31, 2006, and by January 31, 2007.(b) Beginning January 1, 2025, sources in Bexar County are no longer required to comply with the requirements of Subchapter E, Division 1 of this chapter.</content><note type="source"><p>Source Note: The provisions of this §117.9300 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9320"><num value="117.9320">§117.9320</num><heading>Compliance Schedule for Cement Kilns</heading><content>(a) Except as specified in subsections (c) and (d) of this section, the owner or operator of each portland cement kiln placed into service before December 31, 1999, in Bexar, Comal, Ellis, Hays, and McLennan Counties shall be in compliance with the requirements of Subchapter E, Division 2 of this chapter (relating to Cement Kilns) as soon as practicable, but no later than the following dates:(1) May 1, 2003, for cement kilns in Ellis County; and(2) May 1, 2005, for cement kilns in Bexar, Comal, Hays, and McLennan Counties.(b) Notwithstanding subsection (a)(1) of this section, for a cement kiln in Ellis County that the owner or operator has filed an application for modification of its facility to meet the requirements of Subchapter E, Division 2 of this chapter on or before May 30, 2003, the compliance schedule is extended until six months after the issuance of the permit for operation of a low-NOX burner and 12 months after issuance of the permit for operation of a secondary combustion system. Such application(s) must relate only to those modifications required to comply with Subchapter E, Division 2 of this chapter, and any issues incident thereto.(c) The owner or operator of each portland cement kiln in Ellis County shall comply with the requirements of §117.3123 and §117.3142 of this title (relating to Dallas-Fort Worth Eight-Hour Ozone Attainment Demonstration Control Requirements; and Emission Testing and Monitoring for Eight-Hour Attainment Demonstration), and the applicable requirements of §117.3145 of this title (relating to Notification, Recordkeeping, and Reporting Requirements) that are associated with §117.3123 and §117.3142 of this title, as soon as practicable, but no later than March 1, 2009.(1) The provisions regarding extension of compliance schedules in subsection (b) of this section do not apply to this subsection or the requirements of §117.3123, §117.3142, or the applicable requirements of §117.3145 of this title.(2) If a contested case hearing is granted as a direct result of a permit application necessary to comply with the requirements of §117.3123 of this title, the compliance date of this subsection for the site affected by the contested case hearing is extended until no later than March 1, 2010. The compliance date for the affected site remains March 1, 2009, if:(A) a contested case hearing is granted as a result of a permit application that includes modifications necessary to comply with §117.3123 of this title, but the contested case hearing is the result of modifications included in the permit that are unrelated to compliance with §117.3123 of this title, then the compliance date for the affected site remains March 1, 2009; or(B) a contested case hearing is granted at the request of the owner or operator of the affected portland cement kiln or any third party affiliated with the owner or operator.(d) The owner or operator of each portland cement kiln in Bexar County shall comply with the requirements of §117.3124 of this title (relating to Bexar County Control Requirements for Reasonably Available Control Technology (RACT)), and the applicable requirements of §117.3145 of this title (relating to Notification, Recordkeeping, and Reporting Requirements) as soon as practicable, but no later than January 1, 2025.</content><note type="source"><p>Source Note: The provisions of this §117.9320 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9340"><num value="117.9340">§117.9340</num><heading>Compliance Schedule for East Texas Combustion</heading><content>(a) The owner or operator of each stationary, reciprocating internal combustion engine subject to the requirements of Subchapter E, Division 4 of this chapter (relating to East Texas Combustion) shall comply with the requirements of Subchapter E, Division 4 of this chapter as soon as practicable, but no later than March 1, 2010.(b) The owner or operator of a stationary, reciprocating internal combustion engine that becomes subject to the requirements of Subchapter E, Division 4 of this chapter on or after March 1, 2010, shall comply with the requirements of Subchapter E, Division 4 of this chapter as soon as practicable, but no later than 60 days after becoming subject.</content><note type="source"><p>Source Note: The provisions of this §117.9340 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9500"><num value="117.9500">§117.9500</num><heading>Compliance Schedule for Nitric Acid and Adipic Acid Manufacturing Sources</heading><content>All persons affected by the provisions of Subchapter F, Division 1 of this chapter (relating to Adipic Acid Manufacturing) or the provisions of Subchapter F, Division 2 of this chapter (relating to Nitric Acid Manufacturing-Ozone Nonattainment Areas) shall be in compliance as soon as practicable, but no later than November 15, 1999 (final compliance date). All affected persons shall meet the following compliance schedules and submit written notification to the executive director:(1) no later than April 1, 1994, submit a control plan for compliance as specified in §117.4050 of this title and §117.4150 of this title (relating to Control Plan Procedures);(2) conduct applicable continuous emissions monitoring system (CEMS) or predictive emissions monitoring system (PEMS) performance evaluation and quality assurance procedures as specified in §117.4040 and §117.4140 of this title (relating to Continuous Demonstration of Compliance); provide previous testing documentation for any claimed test waiver as allowed by §117.4035(d) or §117.4135(d) of this title (relating to Initial Demonstration of Compliance); and conduct applicable initial demonstration of compliance testing as specified in §117.4035 and §117.4135 of this title, by:(A) no later than January 1, 1994, for affected facilities not performing process modification or installation of a CEMS or PEMS device as part of the control plan specified in §117.4050 and §117.4150 of this title; and(B) no later than November 15, 1999, for affected facilities performing process modification or installation of a CEMS or PEMS device as part of the control plan specified in §117.4050 and §117.4150 of this title;(3) within 60 days after the applicable date specified in paragraph (2)(A) or (B) of this section, submit the results of CEMS or PEMS performance evaluation and quality assurance procedures and the results of initial demonstration of compliance testing specified in paragraph (2) of this section.</content><note type="source"><p>Source Note: The provisions of this §117.9500 adopted to be effective June 14, 2007, 32 TexReg 3206.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9800"><num value="117.9800">§117.9800</num><heading>Use of Emission Credits for Compliance</heading><content>(a) An owner or operator of a unit not subject to Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program) may meet emission control requirements of the sections specified in paragraphs (1) - (9) of this subsection, in whole or in part, by obtaining an emission reduction credit (ERC), mobile emission reduction credit (MERC), discrete emission reduction credit (DERC), or mobile discrete emission reduction credit (MDERC) in accordance with Chapter 101, Subchapter H, Division 1 or 4 of this title (relating to Emission Credit Banking and Trading; and Discrete Emission Credit Banking and Trading), unless there are federal or state regulations or permits under the same commission account number that contain a condition or conditions precluding such use:(1) §§117.105, 117.205, 117.405, 117.1005, or 117.1105 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT));(2) §117.110 or §117.1010 of this title (relating to Emission Specifications for Attainment Demonstration);(3) §117.1015 of this title (relating to Alternative System-Wide Emission Specifications);(4) §117.115 of this title (relating to Alternative Plant-Wide Emission Specifications);(5) §§117.123, 117.423, or 117.3120 of this title (relating to Source Cap);(6) §§117.2010, 117.3010, or 117.3110 of this title (relating to Emission Specifications);(7) §§117.410, 117.1310, 117.2110, or 117.3310 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration);(8) §117.3123 of this title (relating to Dallas-Fort Worth Eight-Hour Ozone Attainment Demonstration Control Requirements); or(9) §117.3124 of this title (relating to Bexar County Control Requirements for Reasonably Available Control Technology (RACT)).(b) An owner or operator of a unit subject to §§117.320, 117.1120, 117.1020, 117.1220, or 117.3020 of this title (relating to System Cap) may meet the emission control requirements of these sections in whole or in part, by complying with the requirements of Chapter 101, Subchapter H, Division 1 or 4 of this title, by obtaining an ERC, MERC, DERC, or MDERC, unless there are federal or state regulations or permits under the same commission account number that contain a condition or conditions precluding such use.(c) For the purposes of this section, the term "reduction credit (RC)" refers to an ERC, MERC, DERC, or MDERC, whichever is applicable.(d) Any lower nitrogen oxides (NOX ) emission specification established under this chapter for the unit or units using RCs requires the user of the RCs to obtain additional RCs in accordance with Chapter 101, Subchapter H, Division 1 or 4 of this title and/or otherwise reduce emissions prior to the effective date of such rule change. For units using RCs in accordance with this section that are subject to new, more stringent rule limitations, the owner or operator using the RCs shall submit a revised final control plan to the executive director in accordance with §§117.156, 117.356, 117.456, 117.1056, 117.1256, and 117.1356 of this title (relating to Revision of Final Control Plan) and §117.252 and §117.1152 of this title (relating to Control Plan Procedures for Reasonably Available Control Technology (RACT)) to revise the basis for compliance with the emission specifications of this chapter. The owner or operator using the RCs shall submit the revised final control plan as soon as practicable, but no later than 90 days prior to the effective date of the new, more stringent rule. The owner or operator of the unit(s) currently using RCs shall calculate the necessary emission reductions per unit as follows.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §117.9800 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective April 19, 2012, 37 TexReg 2655; amended to be effective June 25, 2015, 40 TexReg 3965; amended to be effective May 16, 2024, 49 TexReg 3347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c117/scH/s117.9810"><num value="117.9810">§117.9810</num><heading>Use of Emission Reductions Generated from the Texas Emissions Reduction Plan (TERP)</heading><content>(a) An owner or operator of a unit located in the Dallas-Fort Worth eight-hour ozone nonattainment area or in the Houston-Galveston-Brazoria ozone nonattainment area that is not subject to Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program) may meet emission control requirements of the sections specified in paragraphs (1) and (2) of this subsection, by obtaining emission reductions generated from the TERP as specified in subsection (b) of this section:(1) §117.405 of this title (relating to Emission Specifications for Reasonably Available Control Technology (RACT));(2) §117.410 or §117.1310 of this title (relating to Emission Specifications for Eight-Hour Attainment Demonstration).(b) An owner or operator may obtain emission reductions generated from TERP, as provided in subsection (a) of this section, if:(1) the owner or operator of the site as defined in §122.10 of this title (relating to General Definitions) contributes to the TERP fund, $75,000 per ton of nitrogen oxides emissions used, not to exceed 25 tons per year or 0.5 tons per day on a site-wide basis;(2) the owner or operator of the site demonstrates to the executive director that the site will be in full compliance with the applicable emission reduction requirements of this chapter no later than the fifth anniversary of the date that the emission reductions would otherwise be required;(3) emissions from the site are reduced by at least 80% of the required reductions;(4) the reductions accomplished under the TERP have not been previously used to meet reduction requirements under a state implementation plan attainment demonstration;(5) the reductions accomplished under the TERP are used in the same nonattainment area that they are generated; and(6) the executive director approves a petition submitted by the owner or operator of the site that demonstrates that it is technically infeasible to comply with applicable emission reduction requirements of this chapter above 80% of the required reductions. When considering technical infeasibility the executive director may consider, but will not be limited to:(A) current technology;(B) adaptability of technology to a particular source;(C) age and projected useful life of a source; and(D) cost benefits at the time of application.(c) The emissions reductions funded under the TERP, and used to offset commission requirements, must be used to benefit the community where the site using the emissions reductions is located. If there are no eligible emissions reduction projects within the community, the commission may authorize projects in an adjacent community. For purposes of this section, a community means a Justice of the Peace precinct.</content><note type="source"><p>Source Note: The provisions of this §117.9810 adopted to be effective June 14, 2007, 32 TexReg 3206; amended to be effective June 25, 2015, 40 TexReg 3965.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c118"><num value="118">CHAPTER 118</num><heading>CONTROL OF AIR POLLUTION EPISODES</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c118/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c118/sc/s118.1"><num value="118.1">§118.1</num><heading>Generalized Air Pollution Episodes</heading><content>(a) A generalized air pollution episode is a widespread condition of air pollution as specified in the Texas Water Code, §5.514, that requires immediate action to protect human health or safety. An episode may be declared for one or more air contaminants and will apply to any geographical area affected by the generalized condition of air pollution. (b) A Level 1 air pollution episode exists if the criteria specified in paragraphs (1) and (2) of this subsection are met. (1) The concentration of any of the air contaminants is equal to or greater than the levels specified for Level 1 in Table 1. (2) In the case of all air contaminants except ozone, meteorological conditions conducive to high levels of air contamination are predicted to continue for at least 12 hours. In the case of ozone, meteorological conditions conducive to high levels of ozone are likely to recur within the next 24 hours. Attached Graphic(c) A level 2 air pollution episode exists if the commission determines that emergency reductions of emissions must be initiated to prevent ambient concentrations specified for Level 2 in Table 1.</content><note type="source"><p>Source Note: The provisions of this §118.1 adopted to be effective January 1, 1976; amended to be effective August 25, 1987, 12 TexReg 2639; amended to be effective May 26, 1989, 14 TexReg 2365; amended to be effective March 5, 2000, 25 TexReg 1710.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c118/sc/s118.2"><num value="118.2">§118.2</num><heading>Provisions Governing Generalized Episode Control</heading><content>(a) Whenever the commission determines that a Level 1 air pollution episode exists, the commission shall issue an order, with the concurrence of the governor, declaring a Level 1 air pollution episode. A Level 1 episode may be declared for one or more air contaminants and may apply to any geographical area affected by the generalized condition of air pollution. Any person responsible for the operation of an emission source of a specified air contaminant in the designated area shall take the following actions:(1) determine the existing emission levels for all specified contaminants involved in the episode;(2) immediately implement all reasonably available methods to reduce the emission of the specified contaminant(s); and(3) prepare to curtail operation of all affected emission sources in anticipation that a Level 2 episode will be declared.(b) Whenever the commission determines that Level 2 concentrations may be reached unless emergency curtailment of source emissions is initiated, the commission shall issue an order, with the concurrence of the governor, declaring a Level 2 air pollution episode. A Level 2 episode may be declared for one or more air contaminants and may apply to any geographical area affected by the generalized condition of air pollution. If a Level 2 episode is declared, the commission shall identify the primary sources of the specified contaminants and shall order those sources to curtail or cease operations. The notice and hearing requirements of §118.4 of this title (relating to Hearings) shall apply.</content><note type="source"><p>Source Note: The provisions of this §118.2 adopted to be effective January 1, 1976; amended to be effective August 25, 1987, 12 TexReg 2639; amended to be effective March 5, 2000, 25 TexReg 1710.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c118/sc/s118.3"><num value="118.3">§118.3</num><heading>Localized Air Pollution Episodes</heading><content>Whenever the commission determines that emissions from one or more air contaminant sources are causing localized imminent danger to human health or safety, but that there is not a generalized condition of air pollution of the type referred to in the Texas Water Code, §5.514, the commission shall order the person or persons responsible for the emissions to reduce or discontinue the emissions immediately. In such event, the notice and hearing requirements of §118.4 of this title (relating to Hearings) shall apply.</content><note type="source"><p>Source Note: The provisions of this §118.3 adopted to be effective January 1, 1976; amended to be effective August 25, 1987, 12 TexReg 2639; amended to be effective March 5, 2000, 25 TexReg 1710.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c118/sc/s118.4"><num value="118.4">§118.4</num><heading>Hearings</heading><content>Any emission reduction order issued under the provisions of this chapter shall set a time and place for a hearing under the Texas Water Code, §5.514, to be held before the commission as soon as practicable after the order is issued. The commission shall give such general notice of the hearing as in its judgment is practicable under the circumstances.</content><note type="source"><p>Source Note: The provisions of this §118.4 adopted to be effective January 1, 1976; amended to be effective August 25, 1987, 12 TexReg 2639; amended to be effective March 5, 2000, 25 TexReg 1710.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c118/sc/s118.5"><num value="118.5">§118.5</num><heading>Emission Reduction Plan</heading><content>Any owner or operator of a major stationary source in El Paso, Galveston, Harris, Jefferson, and Orange Counties which emits 100 tons or more per year of any air contaminant specified in Table 1 of §118.1 of this title (relating to Generalized Air Pollution Episodes) or volatile organic compounds (VOC) shall prepare and maintain an emission reduction plan. A plan for any existing source shall be completed within six months after the effective date of this section. A plan for any new or modified source shall be completed within six months after the source begins operations. The emission reduction plan shall be made available to the commission or a local air pollution control agency upon request and shall contain at least the following:(1) identification of all sources of air contaminants specified in Table 1 and sources of VOC to account for at least 95% of the total major stationary source emissions for each contaminant specified in Table 1 and VOC;(2) the approximate amount of each air contaminant specified in Table 1 and amount of VOC from each facility;(3) a description of the specified actions to be taken during a Level 1 episode and the amount of emissions reduction expected for VOC and for each air contaminant specified in Table 1;(4) a description of specific actions to be taken to curtail or cease operations if so directed during a Level 2 episode;(5) identification of processes which require relatively lengthy shutdown procedures and of practical limits of production curtailment to prevent equipment damage; and(6) identification of processes which, under conditions of curtailed production, would affect adversely the activities of raw materials suppliers or product users.</content><note type="source"><p>Source Note: The provisions of this §118.5 adopted to be effective January 1, 1976; amended to be effective August 25, 1987, 12 TexReg 2639; amended to be effective May 26, 1989, 14 TexReg 2365; amended to be effective March 5, 2000, 25 TexReg 1710.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c118/sc/s118.6"><num value="118.6">§118.6</num><heading>Texas Air Pollution Episode Contingency Plan</heading><content>The commission shall prepare a contingency plan which will include detailed procedures for public notification of actual or impending air pollution episodes; actions required by the commission and local air pollution control personnel; notification of public officials; and transmission of information to contiguous states as may be necessary.</content><note type="source"><p>Source Note: The provisions of this §118.6 adopted to be effective January 1, 1976; amended to be effective August 25, 1987, 12 TexReg 2639; amended to be effective March 5, 2000, 25 TexReg 1710.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c122"><num value="122">CHAPTER 122</num><heading>FEDERAL OPERATING PERMITS PROGRAM</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c122/scA"><num value="A">SUBCHAPTER A</num><heading>DEFINITIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c122/scA/s122.10"><num value="122.10">§122.10</num><heading>General Definitions</heading><content>The definitions in the Texas Clean Air Act, Chapter 101 of this title (relating to General Air Quality Rules), and Chapter 3 of this title (relating to Definitions) apply to this chapter. In addition, the following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise. (1) Air pollutant--Any of the following regulated air pollutants: (A) nitrogen oxides; (B) volatile organic compounds; (C) any pollutant for which a national ambient air quality standard has been promulgated; (D) any pollutant that is subject to any standard promulgated under Federal Clean Air Act (FCAA), §111 (Standards of Performance for New Stationary Sources); (E) unless otherwise specified by the United States Environmental Protection Agency (EPA) by rule, any Class I or II substance subject to a standard promulgated under or established by FCAA, Title VI (Stratospheric Ozone Protection); or(F) any pollutant subject to a standard promulgated under FCAA, §112 (Hazardous Air Pollutants) or other requirements established under FCAA, §112, including §112(g), (j), and (r), including any of the following: (i) any pollutant subject to requirements under FCAA, §112(j). If the EPA fails to promulgate a standard by the date established under FCAA, §112(e), any pollutant for which a subject site would be major shall be considered to be regulated on the date 18 months after the applicable date established under FCAA, §112(e); and (ii) any pollutant for which the requirements of FCAA, §112(g)(2) have been met, but only with respect to the individual site subject to FCAA, §112(g)(2) requirement.(2) Applicable requirement--All of the following requirements, including requirements that have been promulgated or approved by the United States Environmental Protection Agency (EPA) through rulemaking at the time of issuance but have future-effective compliance dates: (A) all of the requirements of Chapter 111 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter) as they apply to the emission units at a site; (B) all of the requirements of Chapter 112 of this title (relating to Control of Air Pollution from Sulfur Compounds) as they apply to the emission units at a site; (C) all of the requirements of Chapter 113 of this title (relating to Standards of Performance for Hazardous Air Pollutants and for Designated Facilities and Pollutants), as they apply to the emission units at a site; (D) all of the requirements of Chapter 115 of this title (relating to Control of Air Pollution from Volatile Organic Compounds) as they apply to the emission units at a site; (E) all of the requirements of Chapter 117 of this title (relating to Control of Air Pollution from Nitrogen Compounds) as they apply to the emission units at a site; (F) the following requirements of Chapter 101 of this title (relating to General Air Quality Rules): (i) Chapter 101, Subchapter A, §101.1 of this title (relating to Definitions), insofar as the terms defined in this section are used to define the terms used in other applicable requirements; (ii) Chapter 101, Subchapter A, §101.3 and §101.10 of this title (relating to Circumvention; and Emissions Inventory Requirements); (iii) Chapter 101, Subchapter A, §101.8 and §101.9 of this title (relating to Sampling; and Sampling Ports) if the commission or the executive director has requested such action; (iv) Chapter 101, Subchapter F, §§101.201, 101.211, 101.221, 101.222, and 101.223 of this title (relating to Emissions Event Reporting and Recordkeeping Requirements; Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements; Operational Requirements; Demonstrations; and Actions to Reduce Excessive Emissions); and (v) Chapter 101, Subchapter H of this title (relating to Emissions Banking and Trading) as it applies to the emission units at a site; (G) any site-specific requirement of the state implementation plan; (H) all of the requirements under Chapter 106, Subchapter A of this title (relating to General Requirements), or Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) and any term or condition of any preconstruction permit; (I) all of the following federal requirements as they apply to the emission units at a site: (i) any standard or other requirement under Federal Clean Air Act (FCAA), §111 (Standards of Performance for New Stationary Sources); (ii) any standard or other requirement under FCAA, §112 (Hazardous Air Pollutants); (iii) any standard or other requirement of the Acid Rain program or Cross-State Air Pollution Rule; (iv) any requirements established under FCAA, §504(b) or §114(a)(3) (Monitoring and Analysis; or Inspections, Monitoring, and Entry); (v) any standard or other requirement governing solid waste incineration under FCAA, §129 (Solid Waste Combustion); (vi) any standard or other requirement for consumer and commercial products under FCAA, §183(e) (Control of Emissions from Certain Sources); (vii) any standard or other requirement under FCAA, §183(f) (Tank Vessel Standards); (viii) any standard or other requirement under FCAA, §328 (Air Pollution from Outer Continental Shelf Activities); (ix) any standard or other requirement under FCAA, Title VI (Stratospheric Ozone Protection), unless EPA has determined that the requirement need not be contained in a permit; (x) any increment or visibility requirement under FCAA, Title I, Part C (Prevention of Significant Deterioration of Air Quality) or any national ambient air quality standard, but only as it would apply to temporary sources permitted under FCAA, §504(e) (Temporary Sources); and (xi) any FCAA, Title I, Part C (Prevention of Significant Deterioration) permit issued by EPA; and (J) the following are not applicable requirements under this chapter, except as noted in subparagraph (I)(x) of this paragraph: (i) any state or federal ambient air quality standard; (ii) any net ground level concentration limit; (iii) any ambient atmospheric concentration limit; (iv) any requirement for mobile sources; (v) any asbestos demolition or renovation requirement under 40 Code of Federal Regulations (CFR) Part 61, Subpart M (National Emissions Standards for Asbestos); (vi) any requirement under 40 CFR Part 60, Subpart AAA (Standards of Performance for New Residential Wood Heaters); and (vii) any state only requirement (including §111.131 of this title (relating to Definitions), §111.133 of this title (relating to Testing Requirements), §111.135 of this title (relating to Control Requirements for Surfaces with Coatings Containing Lead), §111.137 of this title (relating to Control Requirements for Surfaces with Coatings Containing Less Than 1.0% Lead), and §111.139 of this title (relating to Exemptions). (3) Continuous compliance determination method--For purposes of Subchapter G of this chapter (relating to Periodic Monitoring and Compliance Assurance Monitoring), a method, specified by an applicable requirement, which satisfies the following criteria: (A) the method is used to determine compliance with an emission limitation or standard on a continuous basis consistent with the averaging period established for the emission limitation or standard; and (B) the method provides data either in units of the emission limitation or standard or correlated directly with the emission limitation or standard. (4) Control device--For the purposes of compliance assurance monitoring applicability, specified in §122.604 of this title (relating to Compliance Assurance Monitoring Applicability), the control device definition specified in 40 Code of Federal Regulations Part 64 (Compliance Assurance Monitoring) applies. (5) Deviation--Any indication of noncompliance with a term or condition of the permit as found using compliance method data from monitoring, recordkeeping, reporting, or testing required by the permit and any other credible evidence or information. (6) Deviation limit--A designated value(s) or condition(s) which establishes the boundary for an indicator of performance. Operation outside of the boundary of the indicator of performance shall be considered a deviation. (7) Draft permit--The version of a permit available for the 30-day comment period under public announcement or public notice and affected state review. The draft permit may be the same document as the proposed permit. (8) Emission unit--A discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a point of origin of air pollutants, including appurtenances. (A) A point of origin of fugitive emissions from individual pieces of equipment, e.g., valves, flanges, pumps, and compressors, shall not be considered an individual emission unit. The fugitive emissions shall be collectively considered as an emission unit based on their relationship to the associated process. (B) The term may also be used in this chapter to refer to a group of similar emission units. (C) This term is not meant to alter or affect the definition of the term "unit" for purposes of the Acid Rain Program. (9) Federal Clean Air Act, §502(b)(10) changes--Changes that contravene an express permit term. Such changes do not include changes that would violate applicable requirements or contravene federally enforceable permit terms and conditions that are monitoring (including test methods), recordkeeping, reporting, or compliance certification requirements. (10) Final action--Issuance or denial of the permit by the executive director. (11) General operating permit--A permit issued under Subchapter F of this chapter (relating to General Operating Permits), under which multiple similar stationary sources may be authorized to operate. (12) Large pollutant-specific emission unit--An emission unit with the potential to emit, taking into account control devices, the applicable air pollutant in an amount equal to or greater than 100% of the amount, in tons per year, required for a source to be classified as a major source, as defined in this section. (13) Major source-- (A) For pollutants other than radionuclides, any site that emits or has the potential to emit, in the aggregate the following quantities: (i) ten tons per year (tpy) or more of any single hazardous air pollutant listed under Federal Clean Air Act (FCAA), §112(b) (Hazardous Air Pollutants); (ii) 25 tpy or more of any combination of hazardous air pollutant listed under FCAA, §112(b); or (iii) any quantity less than those identified in clause (i) or (ii) of this subparagraph established by the United States Environmental Protection Agency (EPA) through rulemaking. (B) For radionuclides regulated under FCAA, §112, the term "major source" has the meaning specified by the EPA by rule. (C) Any site which directly emits or has the potential to emit, 100 tpy or more of any air pollutant. The fugitive emissions of a stationary source shall not be considered in determining whether it is a major source, unless the stationary source belongs to one of the following categories of stationary sources: (i) coal cleaning plants (with thermal dryers); (ii) kraft pulp mills; (iii) portland cement plants; (iv) primary zinc smelters; (v) iron and steel mills; (vi) primary aluminum ore reduction plants; (vii) primary copper smelters; (viii) municipal incinerators capable of charging more than 250 tons of refuse per day; (ix) hydrofluoric, sulfuric, or nitric acid plants; (x) petroleum refineries; (xi) lime plants; (xii) phosphate rock processing plants; (xiii) coke oven batteries;(xiv) sulfur recovery plants; (xv) carbon black plants (furnace process); (xvi) primary lead smelters; (xvii) fuel conversion plant; (xviii) sintering plants; (xix) secondary metal production plants; (xx) chemical process plants (the term chemical processing plant shall not include ethanol production facilities that produce ethanol by natural fermentation included in the North American Industry Classification System codes 312140 or 325193); (xxi) fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units (Btu) per hour heat input; (xxii) petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels; (xxiii) taconite ore processing plants; (xxiv) glass fiber processing plants; (xxv) charcoal production plants; (xxvi) fossil fuel-fired steam electric plants of more than 250 million Btu per hour heat input; or (xxvii) any stationary source category regulated under FCAA, §111 (Standards of Performance for New Stationary Sources) or §112 for which the EPA has made an affirmative determination under FCAA, §302(j) (Definitions). (D) Any site, except those exempted under FCAA, §182(f) (NOX Requirements), which, in whole or in part, is a major source under FCAA, Title I, Part D (Plan Requirements for Nonattainment Areas), including the following: (i) any site with the potential to emit 100 tpy or more of volatile organic compounds (VOC) or nitrogen oxides (NOX ) in any ozone nonattainment area classified as "marginal or moderate"; (ii) any site with the potential to emit 50 tpy or more of VOC or NOX in any ozone nonattainment area classified as "serious"; (iii) any site with the potential to emit 25 tpy or more of VOC or NOX in any ozone nonattainment area classified as "severe"; (iv) any site with the potential to emit ten tpy or more of VOC or NOX in any ozone nonattainment area classified as "extreme"; (v) any site with the potential to emit 100 tpy or more of carbon monoxide (CO) in any CO nonattainment area classified as "moderate"; (vi) any site with the potential to emit 50 tpy or more of CO in any CO nonattainment area classified as "serious"; (vii) any site with the potential to emit 100 tpy or more of inhalable particulate matter (PM-10) in any PM-10 nonattainment area classified as "moderate"; (viii) any site with the potential to emit 70 tpy or more of PM-10 in any PM-10 nonattainment area classified as "serious"; and (ix) any site with the potential to emit 100 tpy or more of lead in any lead nonattainment area. (E) The fugitive emissions of a stationary source shall not be considered in determining whether it is a major source under subparagraph (D) of this paragraph, unless the stationary source belongs to one of the categories of stationary sources listed in subparagraph (C) of this paragraph. (F) Any temporary source which is located at a site for less than six months shall not affect the determination of a major source for other stationary sources at a site under this chapter or require a revision to the existing permit at the site. (G) Emissions from any oil or gas exploration or production well (with its associated equipment) and emissions from any pipeline compressor or pump station shall not be aggregated with emissions from other similar units, whether or not the units are in a contiguous area or under common control, to determine whether the units or stations are major sources under subparagraph (A) of this paragraph. (14) Notice and comment hearing--Any hearing held under this chapter. Hearings held under this chapter are for the purpose of receiving oral and written comments regarding draft permits. (15) Permit or federal operating permit-- (A) any permit, or group of permits covering a site, that is issued, renewed, or revised under this chapter; or (B) any general operating permit issued, renewed, or revised by the executive director under this chapter. (16) Permit anniversary--The date that occurs every 12 months after the initial permit issuance, the initial granting of the authorization to operate, or renewal. (17) Permit application--An application for an initial permit, permit revision, permit renewal, permit reopening, general operating permit, or any other similar application as may be required. (18) Permit holder--A person who has been issued a permit or granted the authority by the executive director to operate under a general operating permit. (19) Permit revision--Any administrative permit revision, minor permit revision, or significant permit revision that meets the related requirements of this chapter. (20) Potential to emit--The maximum capacity of a stationary source to emit any air pollutant under its physical and operational design or configuration. Any certified registration established under §106.6 of this title (relating to Registration of Emissions), §116.611 of this title (relating to Registration to Use a Standard Permit), or §122.122 of this title (relating to Potential to Emit), or a permit by rule under Chapter 106 of this title (relating to Permits by Rule) or other new source review permit under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) restricting emissions or any physical or operational limitation on the capacity of a stationary source to emit an air pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation is enforceable by the United States Environmental Protection Agency. This term does not alter or affect the use of this term for any other purposes under the Federal Clean Air Act (FCAA), or the term "capacity factor" as used in Acid Rain provisions of the FCAA or the Acid Rain rules. (21) Preconstruction authorization--Any authorization to construct or modify an existing facility or facilities under Chapter 106 and Chapter 116 of this title (relating to Permits by Rule; and Control of Air Pollution by Permits for New Construction or Modification). In this chapter, references to preconstruction authorization will also include the following: (A) any requirement established under Federal Clean Air Act (FCAA), §112(g) (Modifications); and (B) any requirement established under FCAA, §112(j) (Equivalent Emission Limitation by Permit). (22) Predictive emission monitoring system--A system that uses process and other parameters as inputs to a computer program or other data reduction system to produce values in terms of the applicable emission limitation or standard. (23) Proposed permit--The version of a permit that the executive director forwards to the United States Environmental Protection Agency for a 45-day review period. The proposed permit may be the same document as the draft permit. (24) Provisional terms and conditions--Temporary terms and conditions, established by the permit holder for an emission unit affected by a change at a site, or the promulgation or adoption of an applicable requirement or state-only requirement, under which the permit holder is authorized to operate prior to a revision or renewal of a permit or prior to the granting of a new authorization to operate. (A) Provisional terms and conditions will only apply to changes not requiring prior approval by the executive director. (B) Provisional terms and conditions shall not authorize the violation of any applicable requirement or state-only requirement. (C) Provisional terms and conditions shall be consistent with and accurately incorporate the applicable requirements and state-only requirements. (D) Provisional terms and conditions for applicable requirements and state-only requirements shall include the following: (i) the specific regulatory citations in each applicable requirement or state-only requirement identifying the emission limitations and standards; (ii) the monitoring, recordkeeping, reporting, and testing requirements associated with the emission limitations and standards identified under clause (i) of this subparagraph; and (iii) where applicable, the specific regulatory citations identifying any requirements that no longer apply. (25) Renewal--The process by which a permit or an authorization to operate under a general operating permit is renewed at the end of its term under §§122.241, 122.501, or 122.505 of this title (relating to Permit Renewals; General Operating Permits; or Renewal of the Authorization to Operate Under a General Operating Permit). (26) Reopening--The process by which a permit is reopened for cause and terminated or revised under §122.231 of this title (relating to Permit Reopenings). (27) Site--The total of all stationary sources located on one or more contiguous or adjacent properties, which are under common control of the same person (or persons under common control). A research and development operation and a collocated manufacturing facility shall be considered a single site if they each have the same two-digit Major Group Standard Industrial Classification code (as described in the Standard Industrial Classification Manual, 1987) or the research and development operation is a support facility for the manufacturing facility. (28) State-only requirement--Any requirement governing the emission of air pollutants from stationary sources that may be codified in the permit at the discretion of the executive director. State-only requirements shall not include any requirement required under the Federal Clean Air Act or under any applicable requirement. (29) Stationary source--Any building, structure, facility, or installation that emits or may emit any air pollutant. Nonroad engines, as defined in 40 Code of Federal Regulations Part 89 (Control of Emissions from New and In-use Nonroad Engines), shall not be considered stationary sources for the purposes of this chapter.</content><note type="source"><p>Source Note: The provisions of this §122.10 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective March 4, 1999, 24 TexReg 1387; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective June 3, 2001, 26 TexReg 3747; amended to be effective December 11, 2002, 27 TexReg 11580; amended to be effective August 3, 2006, 31 TexReg 6000; amended to be effective March 4, 2010, 35 TexReg 1756; amended to be effective April 17, 2014, 39 TexReg 2927; amended to be effective February 23, 2017, 42 TexReg 688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scA/s122.12"><num value="122.12">§122.12</num><heading>Acid Rain Definitions</heading><content>The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.(1) Acid Rain permit--The legally binding and segregable portion of the federal operating permit issued under this chapter, including any permit revisions, specifying the Acid Rain Program requirements applicable to an affected source, to each affected unit at an affected source, and to the owners and operators and the designated representative of the affected source or the affected unit.(2) Acid Rain Program--The national sulfur dioxide and nitrogen oxides air pollution control and emissions reduction program established in accordance with Federal Clean Air Act, Title IV, contained in 40 Code of Federal Regulations Parts 72 - 78.(3) Designated representative--The responsible individual authorized by the owners and operators of an affected source and of all affected units at the site, as evidenced by a certificate of representation submitted in accordance with the Acid Rain Program, to represent and legally bind each owner and operator, as a matter of federal law, in matters pertaining to the Acid Rain Program. Such matters include, but are not limited to: the holdings, transfers, or dispositions of allowances allocated to a unit; and the submission of or compliance with Acid Rain permits, permit applications, compliance plans, emission monitoring plans, continuous emissions monitor (CEM), and continuous opacity monitor (COM) certification notifications, CEM and COM certification and applications, quarterly monitoring and emission reports, and annual compliance certifications. Whenever the term "responsible official" is used in this chapter, it shall refer to the "designated representative" with regard to all matters under the Acid Rain Program.</content><note type="source"><p>Source Note: The provisions of this §122.12 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective August 3, 2006, 31 TexReg 6000; amended to be effective March 4, 2010, 35 TexReg 1756; amended to be effective February 23, 2017, 42 TexReg 688.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c122/scB"><num value="B">SUBCHAPTER B</num><heading>PERMIT REQUIREMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.110"><num value="122.110">§122.110</num><heading>Delegation of Authority to Executive Director</heading><content>The executive director may take action on any permit on behalf of the commission.</content><note type="source"><p>Source Note: The provisions of this §122.110 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.120"><num value="122.120">§122.120</num><heading>Applicability</heading><content>(a) Except as identified in subsection (b) of this section, owners and operators of one or more of the following are subject to the requirements of this chapter:(1) any site that is a major source as defined in §122.10 of this title (relating to General Definitions);(2) any site with an affected unit as defined in 40 Code of Federal Regulations Part 72 subject to the requirements of the Acid Rain Program;(3) any solid waste incineration unit required to obtain a permit under Federal Clean Air Act (FCAA), §129(e) (Permits); or(4) any site that is a non-major source which the United States Environmental Protection Agency (EPA), through rulemaking, has designated as no longer exempt or no longer eligible for a deferral from the obligation to obtain a permit. For the purposes of this chapter, those sources may be any of the following:(A) any non-major source so designated by the EPA, and subject to a standard, limitation, or other requirement under FCAA, §111 (Standards of Performance for New Stationary Sources);(B) any non-major source so designated by the EPA, and subject to a standard or other requirement under FCAA, §112 (Hazardous Air Pollutants), except for FCAA, §112(r) (Prevention of Accidental Releases); or(C) any non-major source in a source category designated by the EPA.(b) The following are not subject to the requirements of this chapter:(1) any site that is a non-major source which the EPA, through rulemaking, has designated as exempt from the obligation to obtain a permit; or(2) any site that is a non-major source which the EPA has allowed permitting authorities to defer from the obligation to obtain a permit.</content><note type="source"><p>Source Note: The provisions of this §122.120 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective June 3, 2001, 26 TexReg 3747; amended to be effective August 3, 2006, 31 TexReg 6000; amended to be effective March 4, 2010, 35 TexReg 1756; amended to be effective February 23, 2017, 42 TexReg 688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.121"><num value="122.121">§122.121</num><heading>Prohibition on Operation</heading><content>Except as provided in §122.138 of this title (relating to Application Shield), owners and operators of sites identified in §122.120 of this title (relating to Applicability) shall not operate emission units at those sites without a permit issued or granted under this chapter.</content><note type="source"><p>Source Note: The provisions of this §122.121 adopted to be effective November 10, 1997, 22 TexReg 10677.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.122"><num value="122.122">§122.122</num><heading>Potential to Emit</heading><content>(a) For purposes of determining applicability of the Federal Operating Permit Program under this chapter, the owner or operator of stationary sources without any other federally-enforceable emission rate may limit their sources' potential to emit by maintaining a certified registration of emissions, which shall be federally enforceable. Emission rates in new source review permits under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) and certified registrations provided for under Chapter 106 of this title (relating to Permits by Rule) or Chapter 116 of this title are also federally-enforceable emission rates.(b) All representations in any registration of emissions under this section with regard to emissions, production or operational limits, monitoring, and reporting shall become conditions upon which the stationary source shall operate. It shall be unlawful for any person to vary from such representation unless the registration is first revised.(c) The registration of emissions shall include documentation of the basis of emission rates and a certification, in accordance with §122.165 of this title (relating to Certification by a Responsible Official), that the maximum emission rates listed on the registration reflect the reasonably anticipated maximums for operation of the stationary source.(d) In order to qualify for registrations of emissions under this section, the maximum emission rates listed in the registration must be less than those rates defined for a major source in §122.10 of this title (relating to General Definitions).(e) The certified registrations of emissions shall be submitted to the executive director; to the appropriate commission regional office; and to all local air pollution control agencies having jurisdiction over the site.(1) Certified registrations established prior to December 11, 2002, shall be submitted on or before February 3, 2003.(2) Certified registrations established on or after December 11, 2002, shall be submitted no later than the date of operation.(f) All certified registrations and records demonstrating compliance with a certified registration shall be maintained on-site and shall be provided, upon request, during regular business hours to representatives of the appropriate commission regional office and any local air pollution control agency having jurisdiction over the site. If however, the site normally operates unattended, certified registrations and records demonstrating compliance with the certified registration must be maintained at an office within Texas having day-to-day operational control of the site. Upon request, the commission shall make any such records of compliance available to the public in a timely manner.</content><note type="source"><p>Source Note: The provisions of this §122.122 adopted to be effective September 20, 1993, 18 TexReg 5989; amended to be effective December 11, 2002, 27 TexReg 11580; amended to be effective April 17, 2014, 39 TexReg 2927; amended to be effective February 23, 2017, 42 TexReg 688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.130"><num value="122.130">§122.130</num><heading>Initial Application Due Dates</heading><content>(a) Owners or operators of any site subject to the requirements of this chapter on February 1, 1998, shall submit abbreviated initial applications by February 1, 1998. The executive director shall inform the applicant in writing of the deadline for submitting the remaining application information.(b) Owners and operators of sites identified in §122.120 of this title (relating to Applicability) that become subject to the requirements of this chapter after February 1, 1998 are subject to the following requirements.(1) If the site is a new site or a site that will become subject to the program as the result of a change at the site, the owner or operator shall not operate the change, or the new emission units, before an abbreviated application is submitted under this chapter. The executive director shall inform the applicant in writing of the deadline for submitting the remaining information.(2) If the site becomes subject to the program as the result of an action by the executive director or the United States Environmental Protection Agency (EPA), the owner or operator will submit an abbreviated application no later than 12 months after the action that subjects the site to the requirements of this chapter.(c) Applications submitted under 40 Code of Federal Regulations (CFR) Part 71 (Federal Operating Permit Programs).(1) If 40 CFR Part 71 is implemented in Texas by the EPA, applications will only be required to be submitted to the EPA.(2) If all or part of 40 CFR Part 71 is delegated to the commission, information required by this chapter and consistent with the delegation will be required to be submitted to the commission.</content><note type="source"><p>Source Note: The provisions of this §122.130 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective March 4, 1999, 24 TexReg 1387; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective June 3, 2001, 26 TexReg 3747; amended to be effective April 17, 2014, 39 TexReg 2940; amended to be effective February 23, 2017, 42 TexReg 688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.132"><num value="122.132">§122.132</num><heading>Application and Required Information for Initial Permit Issuance, Reopening, Renewal, or General Operating Permits</heading><content>(a) A permit application shall provide any information, including confidential information as addressed in Chapter 1 of this title (relating to Purpose of Rules, General Provisions), required by the executive director to determine the applicability of, or to codify, any applicable requirement or state-only requirement.(b) An application for a general operating permit shall only be required to provide the information necessary to determine qualification for, and to assure compliance with, the general operating permit.(c) An applicant may submit an abbreviated initial permit application, containing only the information in this section deemed necessary by the executive director. The abbreviated application shall include at a minimum, a general application form containing identifying information regarding the site and the applicant and a certification by a responsible official. The executive director shall inform the applicant in writing of the deadline for submitting the remaining information.(d) An application shall include, but is not limited to, the following information:(1) a general application form and all information requested by that form;(2) for each emission unit, information regarding the general applicability determinations, which includes the following:(A) the general identification of each potentially applicable requirement and potentially applicable state-only requirement (e.g., New Source Performance Standards Subpart Kb);(B) the applicability determination for each requirement identified under subparagraph (A) of this paragraph; and(C) the basis for each determination made under subparagraph (B) of this paragraph;(3) for each emission unit, information regarding the detailed applicability determinations, which includes the following:(A) the specific regulatory citations in each applicable requirement or state-only requirement identifying the following:(i) the emission limitations and standards; and(ii) the monitoring, recordkeeping, reporting, and testing requirements associated with the emission limitations and standards identified under clause (i) of this subparagraph;(B) the basis for each applicability determination identified under subparagraph (A) of this paragraph;(4) a compliance plan including the following information:(A) the following statement: "As the responsible official it is my intent that all emission units shall continue to be in compliance with all applicable requirements they are currently in compliance with, and all emission units shall be in compliance by the compliance dates with any applicable requirements that become effective during the permit term.";(B) for all emission units addressed in the application, an indication of the compliance status with respect to all applicable requirements, based on any compliance method specified in the applicable requirements and any other credible evidence or information;(C) for any emission unit not in compliance with the applicable requirements identified in the application, the following information:(i) the method used for assessing the compliance status of the emission unit;(ii) a narrative description of how the emission unit will come into compliance with all applicable requirements;(iii) a compliance schedule (resembling and at least as stringent as any compliance schedule contained in any judicial consent decree or administrative order to which the site is subject), including remedial measures to bring the emission unit into compliance with the applicable requirements; which shall be supplemental to, and shall not sanction noncompliance with, the applicable requirements on which it is based; and(iv) a schedule for the submission, at least every six months after issuance of the permit, of certified progress reports;(D) for any emission unit requiring installation, testing, or final verification of operational status of monitoring equipment to satisfy the requirements of compliance assurance monitoring or periodic monitoring, the following information:(i) an implementation plan and schedule for installing, testing, and performing any other appropriate activities prior to use of the monitoring; and(ii) milestones for completing such installation, testing, or final verification;(5) if applicable, information requested by the nationally-standardized forms for the acid rain portions of permit applications, and compliance plans required by the acid rain program;(6) if applicable, a statement certifying that a risk management plan, or a schedule to submit a risk management plan has been submitted to the appropriate agency in accordance with Federal Clean Air Act, §112(r)(7) (Prevention of Accidental Releases);(7) for applicants requesting a permit shield, any information requested by the executive director in order to determine whether to grant the shield;(8) a certification in accordance with §122.165 of this title (relating to Certification by a Responsible Official);(9) fugitive emissions from an emission unit shall be included in the permit application and the permit in the same manner as stack emissions, regardless of whether the source category in question is included in the list of sources contained in the definition of "Major Source";(10) for any application for which the executive director has not authorized initiation of public notice by June 3, 2001, any preconstruction authorizations that are applicable to emission units at the site;(11) for emission units subject to compliance assurance monitoring, as specified in §122.604 of this title (relating to Compliance Assurance Monitoring Applicability), information specified in 40 Code of Federal Regulations (CFR) §64.3 (Monitoring Design Criteria); and 40 CFR §64.4 (Submittal Requirements), according to the schedule specified in 40 CFR §64.5 (Deadlines for Submittals); and(12) for emission units subject to periodic monitoring, as specified in §122.602 of this title (relating to Periodic Monitoring Applicability), proposed periodic monitoring requirements sufficient to yield reliable data from the relevant time period that are representative of the emission unit's compliance with the applicable requirement, and testing, monitoring, reporting, or recordkeeping sufficient to assure compliance with the applicable requirement, shall be submitted for the following permitting actions:(A) permits issued under §122.201 of this title (relating to Initial Permit Issuance);(B) permit renewals issued under §122.243 of this title (relating to Permit Renewal Procedures);(C) permit reopenings issued under §122.231(a) and (b) of this title (relating to Permit Reopenings);(D) significant permit revisions issued under §122.221 of this title (relating to Procedures for Significant Permit Revisions); and(E) minor permit revisions issued under §122.217 of this title (relating to Procedures for Minor Permit Revisions).(e) The executive director shall make a copy of the permit application accessible to the United States Environmental Protection Agency.(f) An application may not omit information needed to determine the applicability of, or to impose, any applicable requirement; however, any facilities that meet the requirements of §116.119 of this title (relating to De Minimis Facilities or Sources) are not required to be included in applications unless the facilities or sources are subject to an applicable requirement.</content><note type="source"><p>Source Note: The provisions of this §122.132 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective June 3, 2001, 26 TexReg 3747; amended to be effective December 11, 2002, 27 TexReg 11580; amended to be effective February 23, 2017, 42 TexReg 688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.133"><num value="122.133">§122.133</num><heading>Timely Application</heading><content>A timely application for a permit is one that is submitted as follows:(1) for initial permit issuance, in accordance with §122.130 of this title (relating to Initial Application Due Dates);(2) for a permit renewal, at least six months, but no earlier than 18 months, before the date of permit expiration;(3) for the initial authorization to operate under the general operating permit, in accordance with §122.130 of this title;(4) for a renewal of an authorization to operate under a general operating permit, at least six months, but no earlier than 18 months, before the date of expiration of the authorization; and(5) for the authorization to operate under a revised general operating permit, by the effective date of the revised general operating permit.</content><note type="source"><p>Source Note: The provisions of this §122.133 adopted to be effective November 10, 1997, 22 TexReg 10677.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.134"><num value="122.134">§122.134</num><heading>Complete Application</heading><content>(a) An application is complete on the 61st day after receipt by the executive director, unless the executive director has requested additional information or otherwise notified the applicant of incompleteness.(b) Except as provided in subsection (c) of this section, a complete application for a permit shall include the following:(1) for initial permit issuance, all information required in §122.132 of this title (relating to Application and Required Information for Initial Permit Issuance, Reopening, Renewal, or General Operating Permits);(2) for permit renewal, an update of the information held by the executive director and any information required by this chapter that has not been previously submitted;(3) for the initial authorization to operate under a general operating permit, information necessary to determine qualification for, and to assure compliance with, the general operating permit;(4) for the renewal of an authorization to operate under a general operating permit, an update of the information held by the executive director and any information required by this chapter that has not been previously submitted; or(5) for the authorization to operate under a revised general operating permit, the information required by §122.504 of this title (relating to Application Revisions When an Applicable Requirement or State-Only Requirement is Promulgated or Adopted or a General Operating Permit is Revised or Rescinded).(c) An applicant may submit an abbreviated initial permit application, containing only the information in §122.132 of this title deemed necessary by the executive director. The abbreviated application shall include at a minimum, a general application form containing identifying information regarding the site and the applicant and a certification by a responsible official. The executive director shall inform the applicant in writing of the deadline for submitting the remaining information.</content><note type="source"><p>Source Note: The provisions of this §122.134 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective March 4, 1999, 24 TexReg 1387; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective June 3, 2001, 26 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.136"><num value="122.136">§122.136</num><heading>Application Deficiencies and Supplemental Information</heading><content>(a) All applications submitted under this chapter are subject to the requirements of this section.(b) If an applicant omits any relevant facts or submits incorrect information in an application, the applicant shall submit the relevant facts or correct the information no later than 60 days after discovering the error.(c) An applicant shall provide additional information as necessary to address any applicable requirements or state-only requirements that become applicable to the site after the date the applicant files a complete application but prior to release of the draft permit. Such information is not required to be submitted prior to the executive director's technical permit review period.(d) If while processing an application, the executive director determines that additional information is necessary to evaluate or take final action on that application, the executive director may request the information and set a reasonable deadline for a response.</content><note type="source"><p>Source Note: The provisions of this §122.136 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective June 3, 2001, 26 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.138"><num value="122.138">§122.138</num><heading>Application Shield</heading><content>(a) Before the executive director takes final action on an application for initial permit issuance, renewal, or a general operating permit, failure to have a permit is not a violation of this chapter provided a timely and complete application has been submitted to the executive director.(b) The executive director may remove the application shield if the applicant fails to submit by the deadline any additional information necessary to process the application.</content><note type="source"><p>Source Note: The provisions of this §122.138 adopted to be effective November 10, 1997, 22 TexReg 10677.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.139"><num value="122.139">§122.139</num><heading>Application Review Schedule</heading><content>The executive director shall take final action to approve, void, or deny permit applications according to the following schedule.(1) For those initial applications required to be submitted by February 1, 1998, the executive director shall take final action on at least one-third of those applications annually.(2) For any permit application containing an early reduction demonstration under FCAA, §112(i)(5) (Early Reduction), the executive director shall take final action no later than nine months after receipt of the complete application.(3) Except as noted in paragraphs (1) and (2) of this section, the executive director shall take final action on an application for an initial permit or permit renewal no later than 18 months after the date on which the executive director deems the application complete.</content><note type="source"><p>Source Note: The provisions of this §122.139 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective June 3, 2001, 26 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.140"><num value="122.140">§122.140</num><heading>Representations in Application</heading><content>The only representations in a permit application that become conditions under which a permit holder shall operate are the following:(1) representations in an acid rain permit application;(2) upon the granting of authorization to operate under a general operating permit, applicability determinations and the bases for the determinations in a general operating permit application; and(3) any representation in an application which is specified in the permit as being a condition under which the permit holder shall operate.</content><note type="source"><p>Source Note: The provisions of this §122.140 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective June 3, 2001, 26 TexReg 3747; amended to be effective December 11, 2002, 27 TexReg 11580.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.142"><num value="122.142">§122.142</num><heading>Permit Content Requirements</heading><content>(a) The conditions of the permit shall provide for compliance with the requirements of this chapter.(b) Each permit issued under this chapter shall contain the information required by this subsection.(1) Unless otherwise specified in the permit, each permit shall include the terms and conditions in §§122.143 - 122.146 of this title (relating to General Terms and Conditions; Recordkeeping Terms and Conditions; Reporting Terms and Conditions; and Compliance Certification Terms and Conditions).(2) Each permit shall also contain specific terms and conditions for each emission unit regarding the following:(A) the generally identified applicable requirements and state-only requirements (e.g., New Source Performance Standards, Subpart Kb);(B) the detailed applicability determinations, which include the following:(i) the specific regulatory citations in each applicable requirement or state-only requirement identifying the emission limitations and standards; and(ii) the monitoring, recordkeeping, reporting, and testing requirements associated with the emission limitations and standards identified under clause (i) of this subparagraph sufficient to ensure compliance with the permit.(3) Each permit for which the executive director has not authorized initiation of public notice by June 3, 2001 shall contain any preconstruction authorization that is applicable to emission units at the site.(c) Each permit shall contain periodic monitoring requirements that are sufficient to yield reliable data from the relevant time period that are representative of the emission unit's compliance with the applicable requirement, and testing, monitoring, reporting, or recordkeeping sufficient to assure compliance with the applicable requirement.(d) For emission units not in compliance with the applicable requirements at the time of initial permit issuance or renewal, the permit shall contain the following:(1) a compliance schedule or a reference to a compliance schedule consistent with §122.132(d)(4)(C) of this title (relating to Application and Required Information for Initial Permit Issuance, Reopening, Renewal, or General Operating Permits); and(2) a requirement to submit progress reports consistent with §122.132(d)(4)(C) of this title. The progress reports shall include the following information:(A) the dates for achieving the activities, milestones, or compliance required in the compliance schedule;(B) dates when the activities, milestones, or compliance required in the compliance schedule were achieved; and(C) an explanation of why any dates in the schedule of compliance were not or will not be met, and any preventive or corrective measures adopted.(e) At the executive director's discretion, and upon request by the applicant, the permit may contain a permit shield for specific emission units.(f) Where an applicable requirement is more stringent than a requirement under the acid rain program, both requirements shall be incorporated into the permit and shall be enforceable requirements of the permit.(g) Permits shall contain compliance assurance monitoring in accordance with the schedule specified in 40 Code of Federal Regulations §64.5 (Deadlines for Submittals).(h) Any compliance assurance monitoring requirements for an emission unit shall satisfy the requirements for periodic monitoring.</content><note type="source"><p>Source Note: The provisions of this §122.142 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective June 3, 2001, 26 TexReg 3747; amended to be effective December 11, 2002, 27 TexReg 11580; amended to be effective February 23, 2017, 42 TexReg 688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.143"><num value="122.143">§122.143</num><heading>General Terms and Conditions</heading><content>Unless otherwise specified in the permit, the following general terms and conditions shall become terms and conditions of each permit.(1) Compliance with the permit does not relieve the permit holder of the obligation to comply with any other applicable rules, regulations, or orders of the commission, or of the United States Environmental Protection Agency (EPA), except for those requirements addressed by a permit shield.(2) The term of the permit shall not exceed five years from the date of initial issuance or renewal of the permit. The authorization to operate under a general operating permit shall not exceed five years from the date the authorization was granted or renewed.(3) Consistent with the authority in Texas Health and Safety Code, Chapter 382, Subchapter B (Powers and Duties of Commission), the permit holder shall allow representatives from the commission or the local air pollution control program having jurisdiction to do the following:(A) enter upon the permit holder's premises where an emission unit is located or emissions-related activity is conducted, or where records must be kept under the conditions of the permit;(B) access and copy any records that must be kept under the conditions of the permit;(C) inspect any emission unit, equipment, practices, or operations regulated or required under the permit; and(D) sample or monitor substances or parameters for the purpose of assuring compliance with the permit at any time.(4) The permit holder shall comply with all terms and conditions codified in the permit and any provisional terms and conditions required to be included with the permit. Except as provided for in paragraph (5) of this section, any noncompliance with either the terms or conditions codified in the permit or the provisional terms and conditions, if any, constitutes a violation of the Federal Clean Air Act and the Texas Clean Air Act and is grounds for enforcement action; permit termination, revocation and reissuance, or modification; or denial of a permit renewal application. It shall not be a defense in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to comply with the permit terms and conditions of the permit.(5) The permit holder need not comply with the original terms and conditions codified in the permit that have been replaced by provisional terms and conditions before issuance or denial of a revision or renewal or before the granting of a new authorization to operate.(6) In every case, the applicable requirements and state-only requirements are always enforceable.(7) The permit may be reopened for cause and revised or terminated. Permit terms or conditions remain enforceable regardless of the following:(A) the filing of a request by the permit holder for a permit revision, reopening, or termination;(B) a notification of planned changes or anticipated noncompliance; or(C) a notice of intent by the executive director for a permit reopening or termination.(8) The executive director may request any information necessary to determine compliance with the permit or whether cause exists for revising, reopening, or terminating the permit. The permit holder shall submit the information no later than 60 days after the request, unless the deadline is extended by the executive director. Upon request, the permit holder shall also furnish to the executive director copies of records required to be kept by the permit, including information claimed to be confidential.(9) If a state-only requirement is determined by the commission to be an applicable requirement, the permit holder shall submit an application for a significant permit revision for the incorporation of the requirement into the permit as an applicable requirement. The application shall be submitted no later than 12 months after the determination by the commission that the requirement is an applicable requirement.(10) The permit holder shall pay fees to the commission consistent with the fee schedule in §101.27 of this title (relating to Emissions Fees).(11) Each portion of the permit is severable. Permit requirements in unchallenged portions of the permit shall remain valid in the event of a challenge to other portions of the permit.(12) The permit does not convey any property rights of any sort, or any exclusive privilege.(13) A copy of the permit shall be maintained at the location specified in the permit.(14) For general operating permits, a copy of the permit, the enforceable general operating permit application, and the authorization to operate shall be maintained at the location specified in the authorization to operate.(15) Any report or compliance certification required by a permit to be submitted to the executive director shall contain a certification in accordance with §122.165 of this title (relating to Certification by a Responsible Official).(16) Representations in acid rain applications and applicability determinations, and the bases for the determinations in general operating permit applications are conditions under which the permit holder shall operate.(17) No emissions from emission units addressed in the permit shall exceed allowances lawfully held under the acid rain program.(18) State-only requirements will not be subject to any of the following requirements of this chapter: public notice, affected state review, notice and comment hearings, EPA review, public petition, recordkeeping, six-month monitoring reporting, six-month deviation reporting, compliance certification, or periodic monitoring.</content><note type="source"><p>Source Note: The provisions of this §122.143 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective June 3, 2001, 26 TexReg 3747; amended to be effective December 11, 2002, 27 TexReg 11580; amended to be effective November 22, 2018, 43 TexReg 7548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.144"><num value="122.144">§122.144</num><heading>Recordkeeping Terms and Conditions</heading><content>Unless otherwise specified in the permit, the following recordkeeping requirements shall become terms and conditions of the permit.(1) The permit holder shall maintain records of all required monitoring data and support information for a period of at least five years from the date of the monitoring sample, measurement, report, or application. If an applicable requirement or state-only requirement specifies a longer data retention period, the records shall be maintained for at least the period of time specified in the applicable requirement or state-only requirement. The monitoring records shall include, but are not limited to, the following:(A) the date, place as defined in the permit, and time of sampling or measurements;(B) the date(s) analyses were performed;(C) the company or entity that performed the analyses;(D) the analytical techniques or methods used;(E) the results of such analyses;(F) the relevant operating conditions which are deemed necessary to characterize emission rates at the time of sampling or measurement;(G) the data from all calibration and maintenance records;(H) all strip-chart recordings for continuous monitoring instrumentation; and(I) copies of all reports required by the permit.(2) Records may be stored electronically.(3) All records required to be maintained by this chapter shall be maintained at the location specified in the permit or in the authorization to operate under a general operating permit.(4) Records required by the permit, including confidential information, shall be provided, upon request, in a legible form, to representatives from the commission or the local air pollution control program having jurisdiction within a reasonable period of time.(5) The EPA may require that the records be sent directly to the EPA along with any claim of confidentiality. Any confidentiality claim should be made in accordance with federal law, including 40 CFR 2.(6) Permit holders shall maintain records of the duration of the stay at a site of any temporary source.</content><note type="source"><p>Source Note: The provisions of this §122.144 adopted to be effective November 10, 1997, 22 TexReg 10677.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.145"><num value="122.145">§122.145</num><heading>Reporting Terms and Conditions</heading><content>Unless otherwise specified in the permit, the following reporting requirements shall become terms and conditions of the permit.(1) Monitoring reports.(A) Reports of monitoring data required to be submitted by an applicable requirement, or by the permit, shall be submitted to the executive director.(B) Reports shall be submitted for at least each six-month period after permit issuance or at the frequency required by an applicable requirement which requires more frequent reporting.(C) The monitoring reports shall be submitted no later than 30 days after the end of each reporting period.(D) The reporting of monitoring data does not change the data collection requirements specified in an applicable requirement.(2) Deviation reports.(A) The permit holder shall report, in writing, to the executive director all instances of deviations, the probable cause of the deviations, and any corrective actions or preventative measures taken for each emission unit addressed in the permit.(B) A deviation report shall be submitted for at least each six-month period after permit issuance or at the frequency required by an applicable requirement which requires more frequent reporting. However, no report is required if no deviations occurred over the six-month reporting period.(C) The deviation reports shall be submitted no later than 30 days after the end of each reporting period.(D) Reporting in accordance with §101.201 and §101.211 of this title (relating to Emissions Event Reporting and Recordkeeping Requirements; and Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements) does not substitute for reporting deviations under this paragraph.</content><note type="source"><p>Source Note: The provisions of this §122.145 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective June 3, 2001, 26 TexReg 3747; amended to be effective February 23, 2017, 42 TexReg 688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.146"><num value="122.146">§122.146</num><heading>Compliance Certification Terms and Conditions</heading><content>Unless otherwise specified in the permit, the following compliance certification requirements shall become terms and conditions of the permit.(1) The permit holder shall certify compliance with the terms and conditions of the permit as follows:(A) The permit holder shall certify compliance for at least each 12-month period following initial permit issuance;(B) The permit holder shall certify compliance after the voidance of an issued permit, covering the period from the date of the last certification to the date the permit is voided; and(C) The permit holder shall certify compliance after the effective date of any change of ownership of the permitted emission unit(s). The certification shall cover the period from the date of the last certification to the effective date of the change of ownership.(2) A compliance certification shall be submitted to the executive director and the United States Environmental Protection Agency (EPA) administrator within 30 days of any certification period or event listed under paragraph (1) of this section.(3) The executive director shall make a copy of the compliance certification accessible to the EPA.(4) The certification shall be based on at a minimum, but not limited to, the monitoring method (or recordkeeping method, if appropriate) required by the permit to be used to assess compliance. If necessary, the permit holder shall identify any other material information that must be included in the certification to comply with Federal Clean Air Act, §113(c)(2), which prohibits knowingly making a false certification or omitting material information.(5) Each compliance certification shall include or reference the following information:(A) the identification of each term or condition of the permit for which the permit holder is certifying compliance, the method used for determining the compliance status of each emission unit, and whether such method provides continuous or intermittent data;(B) for emission units addressed in the permit for which no deviations have occurred over the certification period, a statement that the emission units were in continuous compliance over the certification period;(C) for any emission unit addressed in the permit for which one or more deviations occurred over the certification period, the following information indicating the potentially intermittent compliance status of the emission unit:(i) the identification of the emission unit;(ii) the applicable requirement for which a deviation occurred;(iii) the monitoring method (or recordkeeping method, if appropriate) used to assess compliance;(iv) the frequency with which sampling, monitoring, or recordkeeping was required to be conducted by the monitoring or recordkeeping requirement of the permit; and(v) the total number of times that the assessment required by the monitoring or recordkeeping method specified in the permit indicated that a deviation had occurred;(D) the identification of all other terms and conditions of the permit for which compliance was not achieved; and(E) the compliance certification does not need to include any information regarding facilities identified as de minimis under §116.119 of this title (relating to De Minimis Facilities or Sources) unless the facilities or sources are subject to an applicable requirement.(6) The executive director may request additional information if necessary to determine the compliance status of an emission unit.</content><note type="source"><p>Source Note: The provisions of this §122.146 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective June 3, 2001, 26 TexReg 3747; amended to be effective November 22, 2018, 43 TexReg 7548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.147"><num value="122.147">§122.147</num><heading>General Terms and Conditions for Compliance Assurance Monitoring</heading><content>(a) For permits that contain emission units subject to compliance assurance monitoring (CAM), unless otherwise specified in the permit, the following CAM general terms and conditions shall become terms and conditions of the permit.(1) The permit holder shall install, calibrate, maintain, and operate a monitoring system according to the manufacturer's specifications or other written procedures that provide adequate assurance that the system would reasonably be expected to monitor accurately.(2) At all times, the permit holder shall properly maintain the monitoring system, including, but not limited to, maintaining parts if necessary, for routine repairs of the monitoring system.(3) The permit holder shall collect data at all required intervals during emission unit operation, except for, as applicable, monitoring malfunctions, repairs associated with monitoring malfunctions, and required quality assurance or control activities.(A) Data recorded during monitoring malfunctions, repairs associated with malfunctions, and required quality assurance or control activities shall not be used for purposes of CAM.(B) The permit holder shall maintain records of the beginning date and time, ending date and time, and cause (including unknown cause, if applicable) for monitoring downtime incidents (other than downtime associated with zero and span or other daily calibration checks, if applicable).(C) The permit holder shall use all the data collected during all periods other than those identified in subparagraph (A) of this paragraph in assessing the operation of the control device and associated control system.(D) A monitoring malfunction is any sudden, infrequent, not reasonably preventable failure of the monitoring to provide valid data. Monitoring failures that are caused in part by poor maintenance or careless operation are not malfunctions and shall be considered deviations.(4) All incidents of monitoring downtime recorded under paragraph (3)(B) of this subsection shall be reported in accordance with §122.145 of this title (relating to Reporting Terms and Conditions).(5) The permit holder shall respond to deviations in the following manner.(A) The permit holder shall restore operation to its normal manner as expeditiously as practicable in accordance with good air pollution control practices for minimizing emissions.(B) The permit holder shall minimize the period of any startup, shutdown, or malfunction and take any necessary corrective actions to restore normal operation and prevent the likely recurrence of the cause of a deviation (other than those caused by excused startup or shutdown conditions).(6) The permit holder, if necessary, shall within 30 days of discovery, apply for a permit revision, or submit an application for a new authorization to operate, consistent with the procedures of Subchapter C or F of this chapter (relating to Initial Permit Issuances, Revisions, Reopenings, and Renewals; and General Operating Permits) if:(A) the permit holder identifies a failure to achieve compliance with an emission limitation or standard, for which the approved monitoring did not indicate a deviation while providing valid data; or(B) the results of compliance or performance testing document a need to modify the existing CAM requirements.(7) CAM requirements established under this section are subject to §§122.144 - 122.146 of this title (relating to Recordkeeping Terms and Conditions; Reporting Terms and Conditions; and Compliance Certification Terms and Conditions).(8) The permit holder shall comply with the requirements of a quality improvement plan according to §122.606 of this title (relating to Compliance Assurance Monitoring Quality Improvement Plans), if required by the executive director.(b) The permit holder must be in compliance with 40 Code of Federal Regulations §64.7 (Operation of Approved Monitoring).</content><note type="source"><p>Source Note: The provisions of this §122.147 adopted to be effective December 11, 2002, 27 TexReg 11580.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.148"><num value="122.148">§122.148</num><heading>Permit Shield</heading><content>(a) At the discretion of the executive director, and upon request by the applicant, the permit may contain a permit shield for specific emission units. The permit shield is a special condition stating that compliance with the conditions of the permit shall be deemed compliance with the specified potentially applicable requirements or specified potentially applicable state-only requirements.(b) In order for the executive director to determine that an emission unit qualifies for a permit shield, all information required by §122.132(d)(2), (3), and (7) of this title (relating to Application and Required Information for Initial Permit Issuance, Reopening, Renewal, or General Operating Permits) must be submitted with the permit application.(c) The permit shall contain the following information for the emission units addressed by the permit shield:(1) determinations by the executive director establishing one of the following:(A) potentially applicable requirements or potentially applicable state-only requirements specifically identified during the application review process are not applicable to the source; or(B) duplicative, redundant, and/or contradicting applicable requirements or state-only applicable requirements specifically identified during the application review process are superseded by a more stringent or equivalent requirement; and(2) a statement that compliance with the conditions of the permit shall be deemed compliance with the specified potentially applicable requirements or specified potentially applicable state-only requirements.(d) Any permit that does not expressly state that a permit shield exists shall not provide a permit shield.(e) Permit shield provisions shall not be modified by the executive director until notification is provided to the permit holder. No later than 90 days after notification of a change in a determination made by the executive director, the permit holder shall apply for the appropriate permit revision to reflect the new determination.(f) Provisional terms and conditions are not eligible for a permit shield. Any permit term or condition, under a permit shield, shall not be protected by the permit shield if it is replaced by a provisional term or condition or the basis of the term or condition changes.(g) Nothing in this section shall alter or affect the following:(1) the provisions of Federal Clean Air Act (FCAA), §303 (Emergency Orders);(2) the liability of an owner or operator of a source for any violation of applicable requirements prior to or at the time of permit issuance;(3) the applicable requirements of the acid rain program; or(4) the ability of the United States Environmental Protection Agency to obtain information from a source under FCAA, §114 (Inspections, Monitoring, and Entry).</content><note type="source"><p>Source Note: The provisions of this §122.148 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective February 23, 2017, 42 TexReg 688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.161"><num value="122.161">§122.161</num><heading>Miscellaneous</heading><content>(a) The commission shall not grant a variance, under Texas Health and Safety Code, §382.028, from the requirements of this chapter.(b) Unless specifically noted otherwise, requirements under this chapter do not supersede, substitute for, or replace any requirement under any other rule, regulation, or order of the commission or the EPA.(c) None of the requirements in this chapter shall be construed as prohibiting the construction of new or modified facilities, provided that the owner or operator has obtained any necessary preconstruction authorization.(d) The requirements of Subchapter G of this chapter (relating to Periodic Monitoring and Compliance Assurance Monitoring) shall not be used to justify the approval of monitoring less stringent than the monitoring which is required by the TCAA, FCAA, or by a local air pollution control agency having jurisdiction over the site and are not intended to establish minimum requirements for the purpose of determining the monitoring to be imposed under the TCAA, FCAA, or by a local air pollution control agency having jurisdiction over the site.(e) If after permit issuance or the granting of an authorization to operate under a general operating permit, a site no longer meets the applicability criteria in §122.120 of this title (relating to Applicability), the executive director may administratively void the permit or the authorization to operate under a general operating permit.(1) The permit holder shall demonstrate in writing that a site no longer meets the applicability criteria in §122.120 of this title and request that the permit or authorization to operate under a general operating permit be administratively voided by the executive director.(2) If it is determined that the site meets the applicability criteria in §122.120 of this title after a permit or authorization to operate is administratively voided by the executive director, the owner or operator may be subject to enforcement action.</content><note type="source"><p>Source Note: The provisions of this §122.161 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective December 11, 2002, 27 TexReg 11580.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.162"><num value="122.162">§122.162</num><heading>Compliance History Requirements</heading><content>The executive director shall conduct compliance history reviews under Chapter 60 of this title (relating to Compliance History) for the following actions:(1) initial permit issuances under §122.201 of this title (relating to Initial Permit Issuance);(2) significant permit revisions under §122.221 of this title (relating to Procedures for Significant Permit Revisions);(3) permit reopenings under §122.231(a) or (b) of this title (relating to Permit Reopenings);(4) permit renewals under Subchapter C, Division 4 of this chapter (relating to Permit Renewals);(5) initial acid rain permit issuances under §122.410 of this title (relating to Operating Permit Interface);(6) acid rain permit revisions for fast-track modifications under §122.414(a)(2) of this title (relating to Acid Rain Permit Revisions);(7) acid rain permit modifications under §122.414(a)(3) of this title;(8) acid rain permit reopenings under §122.231(a) or (b) of this title;(9) authorizations to operate under a general operating permit under §122.502 of this title (relating to Authorization to Operate); and(10) renewals of authorizations to operate under a general operating permit under §122.505 of this title (relating to Renewal of the Authorization to Operate Under a General Operating Permit).</content><note type="source"><p>Source Note: The provisions of this §122.162 adopted to be effective August 29, 2002, 27 TexReg 7913.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scB/s122.165"><num value="122.165">§122.165</num><heading>Certification by a Responsible Official</heading><content>(a) The following documents shall include a signed certification of accuracy and completeness:(1) applications for initial permit issuance;(2) applications for revisions;(3) applications for reopenings;(4) applications for renewals;(5) applications for general operating permits;(6) general operating permit application revisions;(7) reports required by the permit;(8) compliance certifications required by §122.146 of this title (relating to Compliance Certification Terms and Conditions);(9) requests to void an issued permit;(10) requests to withdraw a permit application;(11) off-permit notices; and(12) operational flexibility notices.(b) The certification of accuracy and completeness shall include the following statement: "I certify that, based on information and belief formed after reasonable inquiry, the statements and information contained in the attached documents are true, accurate, and complete."(c) The certification shall be signed by the responsible official, who shall be one of the following:(1) for a corporation: a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation, or a duly authorized representative of such person if the representative is responsible for the overall operation of one or more manufacturing, production, or operating facilities applying for or subject to a permit and either:(A) the facilities employ more than 250 persons or have gross annual sales or expenditures exceeding $25 million (in second quarter 1980 dollars); or(B) the delegation of authority to such representatives is approved in advance by the permitting authority;(2) for a partnership or sole proprietorship: a general partner or the proprietor, respectively;(3) for a municipality, state, federal, or other public agency: either a principal executive officer or ranking elected official. For the purposes of this part, a principal executive officer of a federal agency includes the chief executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., a regional administrator of the United States Environmental Protection Agency); or(4) for affected sources:(A) the designated representative insofar as actions, standards, requirements, or prohibitions under Federal Clean Air Act, Title IV or the regulations promulgated thereunder are concerned; and(B) the designated representative, the alternate designated representative, or a person meeting the provisions of paragraphs (1), (2), or (3) of this subsection for any other purposes under 40 Code of Federal Regulations Part 70.(d) The responsible official need not be the same person for each required submittal, and the selection of a responsible official does not preclude the naming of a separate technical contact.(e) The duly authorized representative need not be the same person for each required submittal, and the selection of a duly authorized representative does not preclude the naming of a separate technical contact.(f) If the responsible official for the permit changes, the permit holder must maintain documentation of the change with permit. The permit holder must notify the executive director of any change in the responsible official no later than at the next submittal requiring certification under this chapter.</content><note type="source"><p>Source Note: The provisions of this §122.165 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective November 22, 2018, 43 TexReg 7548.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c122/scC"><num value="C">SUBCHAPTER C</num><heading>INITIAL PERMIT ISSUANCES, REVISIONS, REOPENINGS, AND RENEWALS</heading><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.201"><num value="122.201">§122.201</num><heading>Initial Permit Issuance</heading><content>(a) A permit may be issued by the executive director provided the following:(1) the executive director has received a complete permit application under §122.134 of this title (relating to Complete Application);(2) the conditions of the permit provide for compliance with the requirements of this chapter;(3) the requirements of this chapter for public notice, affected state review, notice and comment hearing, and EPA review have been satisfied; and(4) the executive director has provided a statement that sets forth the legal and factual basis for the draft permit conditions (including references to the applicable statutory or regulatory provisions). The executive director will send this statement to the EPA and any person who requests it. A statement of basis is required for all initial issuances, revisions, renewals, and reopenings.(b) The permit will not be final until the public petition requirements of this chapter have been satisfied.(c) The executive director shall make a copy of the permit application, the permit, and any required notices accessible to the EPA.(d) All permits shall have terms not to exceed five years from initial issuance or renewal.(e) At the discretion of the executive director, more than one permit may be issued for a site.(f) Neither the issuance of a general operating permit by the executive director nor the granting of an authorization to operate under a general operating permit shall be required to meet the requirements of this section. General operating permits are subject to the requirements of Subchapter F of this chapter (relating to General Operating Permits).(g) If the permit application does not meet the criteria of this chapter, the executive director may deny the permit application.</content><note type="source"><p>Source Note: The provisions of this §122.201 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective March 4, 1999, 24 TexReg 1387; amended to be effective December 11, 2002, 27 TexReg 11580.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.204"><num value="122.204">§122.204</num><heading>Temporary Sources</heading><content>(a) A temporary source is a stationary source which changes location to another site at least once during the term of the permit.(b) An owner or operator of any temporary source subject to the requirements of this chapter, shall apply to the executive director for a permit consistent with this chapter.(c) Each temporary source which is located at a site for less than six months shall not affect the determination of major for other stationary sources at a site under this chapter or require a revision to any existing permit at the site.(d) Permit holders shall maintain records of the duration of the stay at a site of any temporary source.(e) A single permit may be issued authorizing similar operations by the same temporary source at multiple temporary locations.(f) The temporary source permit holder shall notify the executive director at least ten days in advance of each change in location, unless the executive director allows for a shorter notice due to an emergency.(g) No affected unit subject to the acid rain program shall be permitted as a temporary source.</content><note type="source"><p>Source Note: The provisions of this §122.204 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective November 22, 2018, 43 TexReg 7548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.210"><num value="122.210">§122.210</num><heading>General Requirements for Revisions</heading><content>(a) The permit holder shall submit an application to the executive director for a revision to a permit for those activities at a site which change, add, or remove one or more permit terms or conditions.(b) The executive director shall make a copy of the permit application, the permit, and any required notices accessible to the United States Environmental Protection Agency.(c) Provisional terms and conditions are not eligible for a permit shield.(d) The permit holder may be subject to enforcement action if the change to the permit is later determined not to qualify for the type of permit revision submitted.(e) Changes qualifying as administrative permit revisions may be processed as minor or significant permit revisions at the permit holder's discretion.(f) Changes qualifying as minor permit revisions may be processed as significant permit revisions at the permit holder's discretion.(g) During a permit revision, and at the discretion of the executive director, multiple permits for the site may be combined into a single permit, or a single permit may be divided into multiple permits, provided that all requirements of this chapter are met.(h) General operating permits and authorizations to operate under general operating permits are not subject to the permit revision requirements of this subchapter, but instead are subject to the requirements of Subchapter F of this chapter (relating to General Operating Permits).</content><note type="source"><p>Source Note: The provisions of this §122.210 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective June 3, 2001, 26 TexReg 3747; amended to be effective November 22, 2018, 43 TexReg 7548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.211"><num value="122.211">§122.211</num><heading>Administrative Permit Revisions</heading><content>A change to a permit may qualify as an administrative permit revision if the change satisfies one or more of the following:(1) corrects typographical errors;(2) identifies a change in the name, address, or phone number of any person identified in the permit, or provides a similar administrative change at the site;(3) increases the frequency of monitoring or reporting requirements without changing any existing emission limitations or standards;(4) changes the permit identification of ownership or operational control of a site where the executive director determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the old and new permit holder is maintained with the permit;(5) incorporates the requirements from preconstruction authorizations under an EPA-approved program, provided that such a program meets procedural requirements substantially equivalent to those of Subchapters C and D of this chapter that would be applicable to the change if it were subject to review as a permit revision, and compliance requirements substantially equivalent to those contained in §§122.143, 122.145, and 122.146 of this title (relating to General Terms and Conditions, Reporting Terms and Conditions, and Compliance Certification Terms and Conditions, respectively);(6) affects or adds a state-only requirement; or(7) is similar to those in paragraphs (1) - (6) of this section and approved by EPA.</content><note type="source"><p>Source Note: The provisions of this §122.211 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective June 3, 2001, 26 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.212"><num value="122.212">§122.212</num><heading>Applications for Administrative Permit Revisions</heading><content>And application must include a record of any changes that took place over the previous 12 months that have not already been incorporated into the permit. An application for administrative permit revision must include, at a minimum, the following:(1) a description of each change;(2) a description of the emission units affected;(3) the provisional terms and conditions as defined in §122.10 of this title (relating to General Definitions) that codify the new applicable requirements or state-only requirements;(4) a statement that each change qualifies for an administrative permit revision; and(5) a certification in accordance with §122.165 of this title (relating to Certification by a Responsible Official).</content><note type="source"><p>Source Note: The provisions of this §122.212 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective June 3, 2001, 26 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.213"><num value="122.213">§122.213</num><heading>Procedures for Administrative Permit Revisions</heading><content>(a) If the following requirements are met, changes at a site listed in §122.211 of this title (relating to Administrative Permit Revisions) requiring an administrative permit revision may be operated before issuance of the revision:(1) the permit holder records the information required in §122.212 of this title (relating to Applications for Administrative Permit Revisions) before the change is operated; and(2) the permit holder maintains the information required by §122.212 of this title with the permit until the permit is revised.(b) In every case, the applicable requirements and state-only requirements are always enforceable.(c) The permit holder need not comply with the original terms and conditions codified in the permit that have been replaced by provisional terms and conditions before issuance or denial of a revision or renewal.(d) The permit holder shall submit an application for an administrative permit revision to the executive director no later than 30 days after each permit anniversary.(e) An administrative permit revision may be issued by the executive director provided the following:(1) the change meets the criteria for an administrative permit revision;(2) the executive director has received an application; and(3) the conditions of the permit provide for compliance with the requirements of this chapter.(f) The executive director shall take final action on an administrative permit revision no later than 60 days after receipt of the application.</content><note type="source"><p>Source Note: The provisions of this §122.213 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective June 3, 2001, 26 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.215"><num value="122.215">§122.215</num><heading>Minor Permit Revisions</heading><content>Minor permit revisions include any change that satisfies the following:(1) does not violate any applicable requirement;(2) does not involve significant changes to existing monitoring, reporting, or recordkeeping requirements in the permit;(3) does not require or change a case-by-case determination of an emission limitation or other standard, or a source-specific determination for temporary sources of ambient impacts, or a visibility or increment analysis;(4) does not seek to establish or change a permit term or condition for which there is no corresponding underlying applicable requirement and that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject. Such terms and conditions include:(A) a federally enforceable emissions cap assumed to avoid classification as a modification under any provision of the FCAA, Title I; and(B) an alternative emissions limit approved pursuant to regulations promulgated under the FCAA, §112(i)(5); and(5) is not a modification under any provision of FCAA, Title I.</content><note type="source"><p>Source Note: The provisions of this §122.215 adopted to be effective June 3, 2001, 26 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.216"><num value="122.216">§122.216</num><heading>Applications for Minor Permit Revisions</heading><content>An application for a minor permit revision must include, at a minimum, the following:(1) a description of each change;(2) a description of the emission units affected;(3) the provisional terms and conditions as defined in §122.10 of this title (relating to General Definitions) that codify the new applicable requirements;(4) a statement that the change qualifies for a minor permit revision;(5) a certification in accordance with §122.165 of this title (relating to Certification by a Responsible Official); and(6) the emissions resulting from the change.</content><note type="source"><p>Source Note: The provisions of this §122.216 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective June 3, 2001, 26 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.217"><num value="122.217">§122.217</num><heading>Procedures for Minor Permit Revisions</heading><content>(a) If the following requirements are met, changes at a site requiring a minor permit revision may be operated before issuance of the revision:(1) the permit holder complies with the following:(A) all applicable requirements governing the change;(B) all state-only requirements governing the change; and(C) the provisional terms and conditions as defined in §122.10 of this title (relating to General Definitions) governing the change;(2) the permit holder submits to the executive director an application containing the information required in §122.216 of this title (relating to Applications for Minor Permit Revisions) before the change is operated; and(3) the permit holder maintains the information required by §122.216 of this title with the permit until the permit is revised.(b) In every case, the applicable requirements are always enforceable.(c) The permit holder need not comply with the original terms and conditions codified in the permit that have been replaced by provisional terms and conditions before issuance or denial of a revision or renewal.(d) The executive director shall notify the EPA administrator and affected state(s) of the requested permit modification within five working days of receipt of a complete minor revision permit application.(e) A minor permit revision may be issued by the executive director provided the following:(1) the changes meet the criteria for a minor permit revision;(2) the executive director has received a complete application;(3) the conditions of the permit provide for compliance with the requirements of this chapter; and(4) the requirements of this chapter for public announcement, affected state review, and EPA review have been satisfied.(f) The executive director shall take final action on the permit revision application no later than 90 days after receipt of an application, or 15 days after the end of the EPA review period, whichever is later.</content><note type="source"><p>Source Note: The provisions of this §122.217 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective June 3, 2001, 26 TexReg 3747; amended to be effective December 11, 2002, 27 TexReg 11580.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.218"><num value="122.218">§122.218</num><heading>Minor Permit Revision Procedures for Permit Revisions Involving the Use of Economic Incentives, Marketable Permits, and Emissions Trading</heading><content>Notwithstanding §122.215 of this title (relating to Minor Permit Revisions), minor permit revision procedures may be used for permit revisions involving the use of economic incentives, marketable permits, emissions trading, and other similar approaches, to the extent that such minor permit revision procedures are explicitly provided for in the Texas state implementation plan or in applicable requirements promulgated by the EPA.</content><note type="source"><p>Source Note: The provisions of this §122.218 adopted to be effective June 3, 2001, 26 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.219"><num value="122.219">§122.219</num><heading>Significant Permit Revisions</heading><content>(a) Significant revision procedures shall be used for changes to the permit at a site that do not qualify as administrative or minor revisions.(b) At a minimum, every significant change in existing monitoring permit terms or conditions and every relaxation of reporting or recordkeeping permit terms or conditions shall be considered a significant permit revision.(c) A change to a permit shield or a new permit shield is a significant revision.</content><note type="source"><p>Source Note: The provisions of this §122.219 adopted to be effective June 3, 2001, 26 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.220"><num value="122.220">§122.220</num><heading>Applications for Significant Permit Revisions</heading><content>An application must include, at a minimum, the following:(1) a description of the change;(2) a description of the emission units affected;(3) a description of the emissions affected by the change;(4) a certification in accordance with §122.165 of this title (relating to Certification by a Responsible Official).</content><note type="source"><p>Source Note: The provisions of this §122.220 adopted to be effective November 10, 1997, 22 TexReg 10677.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.221"><num value="122.221">§122.221</num><heading>Procedures for Significant Permit Revisions</heading><content>(a) Changes requiring a significant permit revision shall not be operated before the permit is revised. For those changes, the permit holder shall do the following:(1) comply with Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification); and(2) submit to the executive director a request for a permit revision including the information required in §122.220 of this title (relating to Applications for Significant Permit Revisions).(b) A significant permit revision may be issued by the executive director only if all of the following conditions have been satisfied:(1) the permit holder has submitted a complete application;(2) the conditions of the permit provide for compliance with the requirements of this chapter;(3) the requirements of this chapter for public notice, affected state review, notice and comment hearing, and EPA review have been satisfied; and(4) the permit contains compliance assurance monitoring for large pollutant-specific emission units, as defined in §122.10 of this title (relating to General Definitions), submitted in the revision application.(c) The significant permit revision shall not be final until the public petition requirements of this chapter have been satisfied.</content><note type="source"><p>Source Note: The provisions of this §122.221 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective June 3, 2001, 26 TexReg 3747; amended to be effective December 11, 2002, 27 TexReg 11580.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.222"><num value="122.222">§122.222</num><heading>Operational Flexibility and Off-Permit Changes</heading><content>(a) An owner or operator may make changes at a permitted site without applying for or obtaining a permit revision provided that the following conditions are met:(1) the changes are not modifications under FCAA, Title I;(2) the changes are allowed under FCAA, §502(b)(10);(3) the changes do not exceed the emissions limitation under the permit; and(4) the owner or operator has obtained any applicable preconstruction authorization. Such preconstruction authorization cannot be a modification under FCAA, Title I.(b) When an owner or operator removes a unit from the site, the unit and its applicable requirements and any other associated permit terms and conditions may be removed from the permit when this removal does not result in changes to applicable requirements or permit terms and conditions for remaining units.(c) The owner or operator shall provide the EPA and the executive director written notification for changes to the permit which qualify under this section. The written notification shall be submitted to the executive director and the EPA administrator at least seven days in advance of the proposed changes, except for an emergency. Notice may be provided within two working days of implementation of operational flexibility changes due to an emergency. Such notice shall also include an explanation of the emergency.(d) For those cases where the permit does not already provide for emissions trading, an owner or operator may trade increases and decreases in emissions without applying for or obtaining a permit revision and based on the seven-day notice prescribed in subsection (c) of this section.(e) Upon request, the executive director shall issue permits that contain terms and conditions allowing for the trading of emissions increases and decreases solely for the purpose of complying with a federally-enforceable emissions cap that is established in the permit independent of otherwise applicable requirements.(f) Written notification shall include the following information:(1) for changes specified in subsections (a) and (b) of this section, a description of the change, the date on which the change is proposed to occur, the emissions resulting from the change, and any permit term or condition that is no longer applicable as a result of the change; or(2) for changes specified in subsection (d) of this section, when the proposed change will occur, a description of each such change, any change in emissions, the permit requirements with which the source will comply using the emissions trading provisions of the SIP, the pollutants emitted subject to the emissions trade, and reference to the provisions in the SIP with which the source will comply and that provide for the emissions trade; or(3) for changes specified in subsection (e) of this section, when the proposed change will occur, a description of the changes in emissions that will result, and how these increases and decreases in emissions will comply with the terms and conditions of the permit; and(4) certification by a responsible official, consistent with §122.165 of this title (relating to Certification by a Responsible Official), that the proposed change meets the criteria for the use of operational flexibility under this section and a request that such procedures be used.(g) The owner or operator, the executive director, and the EPA shall attach each such notice to their copy of the relevant permit.(h) Changes that qualify under this section are not subject to the public notice, affected state review, notice and comment hearing, EPA review, and public petition requirements for permit revisions.(i) Upon satisfying the requirements of this section, the owner or operator may begin operating the change at the expiration of the time period provided for in subsection (c) of this section.(j) Except as provided in subsection (e) of this section, the permit shield described in §122.148 of this title (relating to Permit Shield) shall not apply to any change made pursuant to this section.(k) An off-permit change may be made at a site, when the following conditions are met:(1) The change shall meet all applicable requirements and shall not violate any existing permit term or condition;(2) The permittee shall provide written notice to the executive director and the EPA administrator concurrent with each such change, except for changes that qualify as insignificant activities. Such written notice shall describe each such change, including the date, any change in emissions, pollutants emitted, and any applicable requirement that would apply as a result of the change;(3) The change shall not qualify for the permit shield under §122.148; and(4) The permittee shall keep a record of any off-permit changes with the permit.</content><note type="source"><p>Source Note: The provisions of this §122.222 adopted to be effective June 3, 2001, 26 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.231"><num value="122.231">§122.231</num><heading>Permit Reopenings</heading><content>(a) The executive director shall reopen a permit for cause. Cause shall be limited to one or more of the following:(1) the promulgation or adoption of a new applicable requirement affecting emission units at the site, unless one of the following applies:(A) the new requirement is incorporated into a permit which addresses the emission unit subject to the new requirement;(B) the effective date of the requirement is later than the date on which the permit is due to expire, unless the original permit or any of its terms and conditions has been extended pursuant to §§122.133 of this title (relating to Timely Application) or §122.134 of this title (relating to Complete Application); or(C) the remaining permit term is less than three years;(2) the executive director or the EPA administrator determines that the permit contains a material mistake;(3) inaccurate statements were made in establishing the emissions standards or other terms and conditions of the permit;(4) the executive director or the EPA administrator determines that the permit must be revised or terminated to assure compliance with the applicable requirements;(5) a phased application schedule in the permit requires a reopening; or(6) additional requirements, including excess emissions requirements, become applicable to an affected source under the acid rain program. Upon approval by the EPA administrator, excess emissions offset plans shall be deemed to be incorporated into the permit.(b) The following procedures shall apply if EPA initiates a reopening by notifying the executive director in writing that cause, as defined in this section, exists to terminate or revise a permit.(1) The executive director shall submit a proposed determination regarding the reopening to the EPA no later than 90 days after receipt of the notification. If the EPA extends the period for response by the executive director, the executive director shall submit the proposed determination no later than 180 days after receipt of the notification.(2) Upon receipt of the proposed determination, the EPA shall have 90 days to object, in writing, to the proposed determination.(3) The executive director shall have 90 days from receipt of an EPA objection to resolve the objection and take action on the reopening.(c) The executive director shall institute proceedings to reopen permits or authorizations to operate to incorporate requirements under Chapter 106, Subchapter A of this title (relating to General Requirements) or Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) or any term or condition of any preconstruction permit.(1) Before December 1, 2001, the executive director will institute proceedings to reopen permits no later than renewal of the permit. Such reopenings need not follow full permit issuance procedures nor the notice requirement of subsection (e) of this section but may instead follow the permit revision procedure in effect under the State's approved Part 70 program for incorporation of minor NSR permits.(2) Before December 1, 2001, the executive director will institute proceedings to reopen authorizations to operate.(3) Requirements under Chapter 106, Subchapter A, or Chapter 116 of this title or any term or condition of any preconstruction permit will be incorporated no later than permit renewal for applications for which the executive director has authorized initiation of public notice by the effective date of this section.(d) Except as provided in subsection (c) of this section, reopenings shall be made as soon as possible. Reopenings shall be completed and the permit issued by the executive director not later than 18 months after promulgation or adoption of the applicable requirement.(e) The executive director shall provide a 30-day notice of intent to reopen, unless a shorter notice is authorized by the executive director due to an emergency.(f) Reopenings shall be subject to the requirements of §122.201 of this title (relating to Initial Permit Issuance). These procedures shall affect only those parts of the permit for which cause to reopen exists.(g) The permit holder shall provide any information requested by the executive director to complete the reopening.</content><note type="source"><p>Source Note: The provisions of this §122.231 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective June 3, 2001, 26 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.241"><num value="122.241">§122.241</num><heading>Permit Renewals</heading><content>(a) The permit shall expire no later than five years from initial issuance or renewal.(b) The permit holder shall submit a timely and complete application under §122.133 and §122.134 of this title (relating to Timely Application and Complete Application) for renewal.(c) The executive director shall provide written notice to the permit holder that the permit is scheduled for review.(1) The notice will be provided by mail or electronic communication no later than 12 months before the expiration of the permit.(2) The notice shall specify the procedure for submitting an application.(3) Failure to receive notice does not affect the expiration date of the permit or the requirement to submit a timely and complete application.(d) Any information under the phased application process, that is not included in the permit by the first permit renewal, shall be submitted to the executive director with the renewal application.(e) The permit, when renewed, shall contain specific terms and conditions for each emission unit consistent with §122.142 of this title (relating to Permit Content Requirements).(f) After the renewal application is submitted and before the permit is renewed, the permit holder may operate the changes at a site in accordance with this subchapter provided that the renewal application is updated to include any provisional terms and conditions. These changes shall be codified in the permit through the renewal process.(g) Permit expiration terminates the owner's or operator's right to operate, unless a timely and complete renewal application has been submitted. After a timely and complete application submittal, the permit holder may continue to operate under the terms and conditions of the previously issued permit until final action is taken on the permit renewal application.</content><note type="source"><p>Source Note: The provisions of this §122.241 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective November 22, 2018, 43 TexReg 7548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scC/s122.243"><num value="122.243">§122.243</num><heading>Permit Renewal Procedures</heading><content>(a) A permit may be renewed by the executive director only if all of the following conditions have been satisfied:(1) the executive director has received a complete permit application under §122.134 of this title (relating to Complete Application);(2) the conditions of the permit will provide for compliance with all requirements of this chapter;(3) the requirements of this chapter for public notice, affected state review, notice and comment hearing, and EPA review have been satisfied.(b) The renewed permit will not be final until the public petition requirements of this chapter have been satisfied.(c) The executive director shall make a copy of the renewal application, draft permit, and any required notices accessible to the EPA.(d) In determining whether and under what conditions a permit should be renewed, the executive director shall consider the following:(1) whether the draft permit provides for compliance with all applicable requirements; and(2) the site's compliance status with this chapter and the terms and conditions of the existing permit.(e) At the discretion of the executive director, during permit renewal, any permits at a site may be combined into a single permit which satisfies the requirements of this section.(f) The executive director may not impose requirements less stringent than those of the existing permit unless a determination is made that the proposed changes will meet the requirements of this chapter.</content><note type="source"><p>Source Note: The provisions of this §122.243 adopted to be effective November 10, 1997, 22 TexReg 10677.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c122/scD"><num value="D">SUBCHAPTER D</num><heading>PUBLIC ANNOUNCEMENT, PUBLIC NOTICE, AFFECTED STATE REVIEW, NOTICE AND COMMENT HEARING, NOTICE OF PROPOSED FINAL ACTION, EPA REVIEW, AND PUBLIC PETITION</heading><section identifier="/us/state/tx/tac/t30/p1/c122/scD/s122.312"><num value="122.312">§122.312</num><heading>Public Announcement</heading><content>(a) Public announcement requirements apply to minor permit revisions.(b) The executive director shall publish an announcement of a draft permit for a minor permit revision on the commission's publicly accessible electronic media. The announcement shall contain the following:(1) permit application number;(2) permit holder's name and address;(3) description of the location of the site;(4) the location and availability of the following:(A) copies of the complete permit application;(B) the draft permit;(C) all other relevant supporting materials in the public files of the agency;(5) a description of the comment procedures, including the duration of the public announcement comment period; and(6) name, address, and phone number of the commission office to be contacted for further information.(c) The executive director shall make a copy of the public announcement and date of publication accessible to the EPA and all local air pollution control agencies with jurisdiction in the county in which the site is located.(d) The executive director shall furnish a notice of the public announcement to the air pollution control agency of any affected state.(e) The executive director shall make available for public inspection the draft permit and the complete revision application throughout the comment period during business hours at the commission's central office and at the commission's regional office where the site is located.(f) The executive director shall receive public comment for 30 days after the announcement of the draft permit is published. During the comment period, any person may submit written comments on the draft permit.(g) The draft permit may be changed based on comments pertaining to whether the permit provides for compliance with the requirements of this chapter.(h) Public notice requirements satisfy public announcement requirements.(i) The executive director shall respond to comments consistent with §122.345 of this title (relating to Notice of Proposed Final Action).</content><note type="source"><p>Source Note: The provisions of this §122.312 adopted to be effective November 10, 1997, 22 TexReg 10677.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scD/s122.320"><num value="122.320">§122.320</num><heading>Public Notice</heading><content>(a) Public notice requirements apply to initial issuances, significant permit revisions, reopenings, and renewals.(b) The executive director shall direct the applicant to publish a notice of draft permit and preliminary decision, at the applicant's expense, in the public notice section of one issue of a newspaper of general circulation in the municipality in which the site or proposed site is located, or in the municipality nearest to the location of the site or proposed site. The executive director shall direct the applicant to make a copy of the application, draft permit, and statement of basis available for review and copying at a public place in the county in which the site is located or proposed to be located. The notice shall contain the following information:(1) the permit number;(2) the applicant's or permit holder's name, address, and telephone number and a description of the manner in which a person may contact the applicant or permit holder for further information;(3) a description of the location of the site or proposed location of the site;(4) a description of the activity or activities involved in the permit application;(5) for significant permit revisions, the air pollutants with emission changes;(6) the location and availability of the following:(A) the complete permit application;(B) the draft permit;(C) the statement of basis; and(D) all other relevant supporting materials in the public files of the agency;(7) a description of the comment procedures, including the duration of the public notice comment period and procedures to request a hearing printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice;(8) a statement that a person who may be affected by the emission of air pollutants from the site is entitled to request a notice and comment hearing printed in a font style or size that clearly provides emphasis and distinguishes it from the remainder of the notice;(9) a description of the procedure by which a person may be placed on a mailing list in order to receive additional information about the application or draft permit;(10) if applicable, the time and location of any public meeting; and(11) the name, address, and phone number of the commission office to be contacted for further information.(c) One notice may be published for multiple permits at a site with the approval of the executive director.(d) The applicant shall submit a copy of the public notice and date of publication to the executive director and all local air pollution control agencies with jurisdiction over the site in the county in which the site is located.(e) The applicant shall submit a statement to the executive director, with a certification in accordance with §122.165 of this title (relating to Certification by a Responsible Official), that the sign required by subsection (h) of this section has been posted consistent with the provisions of that subsection.(f) The executive director shall make a copy of the permit application, the draft permit, and any required notices accessible to the United States Environmental Protection Agency.(g) The executive director shall make available for public inspection the draft permit and the complete application throughout the comment period during business hours at the commission's central office and at the commission's regional office where the site is located.(h) At the applicant's expense, a sign shall be placed at the site declaring the filing of an application for a permit and stating the manner in which the executive director may be contacted for further information.(1) The sign shall be provided by the applicant and shall substantially meet the following requirements.(A) The sign shall consist of dark lettering on a white background and shall be not smaller than 18 inches by 28 inches and all lettering shall be no less than one and one-half inches in size and block printed capital lettering.(B) The sign shall be headed by the words "APPLICATION FOR FEDERAL OPERATING PERMIT".(C) The sign shall include the words "PERMIT NO." and the number of the permit.(D) The sign shall include the words "for further information contact".(E) The sign shall include the words "TEXAS COMMISSION ON ENVIRONMENTAL QUALITY," and the address of the appropriate commission regional office.(F) The sign shall include the phone number of the appropriate commission office.(G) The sign shall include the name of the company applying for the permit.(2) The sign shall be in place by the date of publication of the newspaper notice and shall remain in place and legible throughout the period of public comment.(3) The sign placed at the site shall be located at or near the site main entrance, provided that the sign is legible from the public street. If the sign would not be legible from the public street, then the sign shall be placed within ten feet of a property line paralleling a public street.(A) The executive director may approve variations if the applicant has demonstrated that it is not practical to comply with the specific sign-posting requirements.(B) Alternative sign-posting plans proposed by the applicant must be at least as effective in providing notice to the public.(C) The executive director must approve the variations before signs are posted.(4) One sign may be posted for multiple permits at a site with the approval of the executive director.(i) The executive director shall receive public comment for 30 days after the notice of the public comment period is published. During the comment period, any person may submit written comments on the draft permit.(j) During the 30-day public notice comment period, any person who may be affected by emissions from a site regulated under this chapter may request in writing a notice and comment hearing on the draft permit.(k) The draft permit may be changed based on comments pertaining to whether the permit provides for compliance with the requirements of this chapter.(l) The executive director shall respond to comments consistent with §122.345 of this title (relating to Notice of Proposed Final Action).(m) The applicant, in cooperation with the executive director, may hold a public meeting in the county in which the site is located or proposed to be located. Notice of this public meeting shall be provided in the notice required by subsection (b) of this section.</content><note type="source"><p>Source Note: The provisions of this §122.320 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 23, 1999, 24 TexReg 8307; amended to be effective June 3, 2001, 26 TexReg 3747; amended to be effective November 22, 2018, 43 TexReg 7548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scD/s122.322"><num value="122.322">§122.322</num><heading>Bilingual Public Notice</heading><content>(a) The requirements of this subsection are applicable when either the elementary school or the middle school located nearest to the facility or proposed facility provides a bilingual education program as required by Education Code, Chapter 29, Subchapter B, and 19 Texas Administrative Code (TAC) §89.1205(a) (relating to Required Bilingual Education and English as a Second Language Programs), or if either school has waived out of such a required bilingual education program under the provisions of 19 TAC §89.1205(g). Schools not governed by the provisions of 19 TAC §89.1205 shall not be considered in determining applicability of the requirements of this section. Each affected facility shall meet the following requirements.(1) At the applicant's expense, an additional notice shall be published at least once in each alternate language in which the bilingual education program is taught. If the nearest elementary or middle school has waived out of the requirements of 19 TAC §89.1205(a) under 19 TAC §89.1205(g), the notice shall be published in the alternate languages in which the bilingual education program would have been taught had the school not waived out of the bilingual education program.(2) Each notice under this section shall be published in a newspaper or publication that is published in the alternate language in which public notice is required.(3) The newspaper or publication must be of general circulation in the municipality or county in which the facility is located or proposed to be located.(4) The requirements of this section are waived for each language in which no publication exists, or if the publishers of all alternate language publications refuse to publish the notice.(5) Notice under this subsection shall only be required to be published within the United States.(6) If the alternate language publication is published less frequently than once a month, this notice requirement may be waived by the executive director on a case-by-case basis.(7) Each alternate language publication shall follow the requirements of §122.320 of this title (relating to Public Notice) not otherwise inconsistent with this subsection.(8) At the applicant's expense, an additional sign shall be posted in each alternate language in which the bilingual education program is taught. If the nearest elementary or middle school has waived out of the requirements of 19 TAC §89.1205(a) under 19 TAC §89.1205(g), the alternate language signs shall be posted in the alternate languages in which the bilingual education program would have been taught had the school not waived out of the bilingual education program.(9) The alternate language signs shall be posted adjacent to each English language sign required in public notice.(10) The alternate language signs shall meet all other requirements of §122.320 of this title.(b) Elementary or middle schools that offer English as a second language under 19 TAC §89.1205(d), and are not otherwise affected by 19 TAC §89.1205(a), will not trigger the requirements of subsection (a) of this section.(c) If the notices required by §122.320 of this title and §122.340 of this title (relating to Notice and Comment Hearing) are combined, the combined notice is subject to the requirements of this section.</content><note type="source"><p>Source Note: The provisions of this §122.322 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scD/s122.330"><num value="122.330">§122.330</num><heading>Affected State Review</heading><content>(a) Affected state review requirements apply to initial issuances, minor permit revisions, significant permit revisions, reopenings, and renewals.(b) An affected state may be New Mexico, Oklahoma, Kansas, Colorado, Arkansas, or Louisiana if either of the following criteria are satisfied:(1) The state is contiguous to Texas and the state's air quality may be affected by the issuance or denial of a federal operating permit, revision, or renewal; or(2) The state is within 50 miles of the site or proposed site.(c) The executive director shall provide notice of the draft permit to any affected state on or before the time notice is provided to the public through public announcement or public notice.(d) Affected states shall have 30 days from date of notification to comment on the draft permit.(e) The executive director shall notify the EPA and any affected state, in writing, of the refusal to incorporate any recommendations into the proposed permit that the affected state submitted during the affected state review period. The notice shall include the executive director's reasons for not accepting any of the recommendations.(f) The draft permit may be changed based on comments pertaining to whether the permit provides for compliance with the requirements of this chapter.(g) The executive director shall respond to comments consistent with §122.345 of this title (relating to Notice of Proposed Final Action).</content><note type="source"><p>Source Note: The provisions of this §122.330 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective June 3, 2001, 26 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scD/s122.340"><num value="122.340">§122.340</num><heading>Notice and Comment Hearing</heading><content>(a) Notice and comment hearing requirements apply to initial issuances, significant permit revisions, reopenings, and renewals.(b) Any hearing regarding a permit will be conducted under the procedures in this section, and not under the APA.(c) Any person who may be affected by emissions from a site regulated under this chapter may request the executive director to hold a hearing on the draft permit. The request must be made during the 30-day public comment period.(d) The executive director shall decide whether to hold a hearing. The executive director is not required to hold a hearing if the basis of the request by a person who may be affected by emissions from a site is determined to be unreasonable. If a hearing is requested by a person who may be affected by emissions from a site regulated under this chapter, and that request is reasonable, the executive director shall hold a hearing.(e) At the applicant's expense, notice of a hearing on a draft permit must be published in the public notice section of one issue of a newspaper of general circulation in the municipality in which the site or proposed site is located, or in the municipality nearest to the location of the site or proposed site. The notice must be published at least 30 days before the date set for the hearing. The notice must include the following:(1) the time, place, and nature of the hearing;(2) a brief description of the purpose of the hearing; and(3) the name and phone number of the commission office to be contacted to verify that a hearing will be held.(f) The applicant shall submit a copy of the notice of hearing and date of publication to the executive director and all local air pollution control agencies with jurisdiction in the county in which the site is located.(g) At the executive director's discretion, the hearing notice may be combined with the notice of the draft permit required by this chapter.(h) Any person, including the applicant, may submit oral or written statements and data concerning the draft permit.(1) Reasonable time limits may be set for oral statements, and the submission of statements in writing may be required.(2) The period for submitting written comments is automatically extended to the close of any hearing.(3) At the hearing, the period for submitting written comments may be extended beyond the close of the hearing.(i) A tape recording or written transcript of the hearing must be made available to the public.(j) Any person, including the applicant, who believes that any condition of the draft permit is inappropriate or that the preliminary decision to issue or deny the permit is inappropriate, shall raise all reasonably ascertainable issues and submit all reasonably available arguments supporting that position by the end of the public comment period.(k) Any supporting materials for comments submitted under subsection (j) of this section must be included in full and may not be incorporated by reference, unless the materials are one of the following:(1) already part of the administrative record in the same proceedings;(2) state or federal statutes and regulations;(3) EPA documents of general applicability; or(4) other generally available reference materials.(l) The executive director shall keep a record of all comments received and issues raised in the hearing. This record is available to the public.(m) The draft permit may be changed based on comments pertaining to whether the permit provides for compliance with the requirements of this chapter.(n) The executive director shall respond to comments consistent with §122.345 of this title (relating to Notice of Proposed Final Action).</content><note type="source"><p>Source Note: The provisions of this §122.340 adopted to be effective July 30, 1997, 22 TexReg 6867; amended to be effective June 3, 2001, 26 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scD/s122.345"><num value="122.345">§122.345</num><heading>Notice of Proposed Final Action</heading><content>(a) After the public comment period or the conclusion of any notice and comment hearing, the executive director shall send notice of the proposed final action on the application by first-class mail or electronic communication to any person who commented during the public comment period or at the hearing, and to the applicant.(b) The notice must include the following:(1) the response to any comments submitted during the public comment period;(2) identification of any change in the conditions of the draft permit and the reasons for the change;(3) a description and explanation of the process for public petitions to the United States Environmental Protection Agency;(4) the date by which the petition must be filed; and(5) a statement that any person affected by the decision of the executive director may petition the Administrator.</content><note type="source"><p>Source Note: The provisions of this §122.345 adopted to be effective July 30, 1997, 22 TexReg 6867; amended to be effective November 22, 2018, 43 TexReg 7548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scD/s122.350"><num value="122.350">§122.350</num><heading>EPA Review</heading><content>(a) EPA review requirements apply to initial issuances, minor permit revisions, significant permit revisions, reopenings, and renewals.(b) The executive director shall submit the proposed permit to the EPA.(1) For initial issuances, significant permit revisions, reopenings, and renewals the proposed permit shall be submitted to the EPA. At the discretion of the executive director, the procedural requirements of §122.320 of this title (relating to Public Notice), §122.322 of this title (relating to Bilingual Notice), and the requirements for EPA Review under this section may run concurrently. The procedural requirements of §122.320 and §122.322 of this title and the requirements for EPA review under this section may not run concurrently if any person submits comments or if the executive director grants a hearing request. In such case, any comments received and the revised proposed permit, if applicable, shall be submitted to the EPA. The EPA review period shall begin upon its receipt of the comments and the proposed permit.(2) For minor permit revisions, the proposed permit shall be submitted to the EPA no earlier than the first day of the public announcement period.(3) For general operating permit initial issuances and significant revisions, the proposed permit shall be submitted to the EPA no earlier than the first day of the public comment period. If any person submits comments or if the executive director grants a hearing request, any comments received and the revised general operating permit, if applicable, shall be submitted to the EPA. The EPA review period shall begin upon its receipt of the comments and the general operating permit. For general operating permit minor permit revisions, the proposed permit shall be submitted to the EPA no earlier than the first day of the public announcement period.(c) Upon receipt of the proposed permit, the EPA shall have 45 days to object, in writing, to the issuance of the proposed permit. The EPA may only object to the issuance of any proposed permit which is not in compliance with the applicable requirements or the requirements of this chapter.(d) The executive director may issue the permit provided the following:(1) the EPA does not object to the issuance of the proposed permit;(2) the EPA notifies the executive director that the EPA will not object to the issuance of the permit; or(3) the executive director resolves any objections received.(e) If the executive director fails, within 90 days of receipt of an objection, to revise the proposed permit and submit a revised permit, if necessary, in response to the objection, the EPA will issue or deny the permit in accordance with the requirements of the federal program promulgated under FCAA, Title V (relating to Permit).</content><note type="source"><p>Source Note: The provisions of this §122.350 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective June 3, 2001, 26 TexReg 3747; amended to be effective December 11, 2002, 27 TexReg 11580.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scD/s122.360"><num value="122.360">§122.360</num><heading>Public Petition</heading><content>(a) Public petition requirements apply to initial issuances, significant permit revisions, reopenings, and renewals.(b) If the EPA does not file an objection with the executive director, any person, including the applicant, affected by a decision of the commission under this chapter may petition the EPA to make an objection. After receiving a petition, the EPA may only object to the issuance of any proposed permit which is not in compliance with the applicable requirements or the requirements of this chapter.(c) The petition must be filed with the EPA within 60 days after the expiration of EPA's 45-day review period. For general operating permits, the petition must be filed no later than 60 days after issuance of the general operating permit by the executive director.(d) A copy of the petition shall be provided to the executive director and the applicant by the petitioner.(e) The petition does not limit the effectiveness of a permit issued by the executive director or the finality of the executive director's action for purposes of an appeal under Texas Health and Safety Code, §382.032.(f) Petitions shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period, unless the petitioner demonstrates in the petition to the EPA that it was not possible to raise the objections within the public comment period, or that the grounds for the objection arose after the public comment period. The petition shall identify all objections.(g) If the EPA objects to the permit as a result of a petition filed under this section before issuance of the permit, the executive director shall not issue the permit until EPA's objection has been resolved.(h) If the executive director has issued a permit before receipt of an EPA objection based on a public petition, the permit remains effective and the executive director shall have 90 days from the receipt of an EPA objection to resolve any objection and, if necessary, terminate or revise the permit.(1) In the event additional information is needed from the permit holder, the executive director may request from EPA a 90-day extension to resolve the objection.(2) If the executive director fails to resolve the objection, EPA will revise, terminate, or revoke the permit, and the executive director may issue only a revised permit that satisfies EPA's objection.(3) The permit holder will not be in violation of the requirement to have submitted a timely and complete application.</content><note type="source"><p>Source Note: The provisions of this §122.360 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective June 3, 2001, 26 TexReg 3747.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c122/scE"><num value="E">SUBCHAPTER E</num><heading>ACID RAIN PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c122/scE/s122.410"><num value="122.410">§122.410</num><heading>Operating Permit Interface</heading><content>(a) The commission hereby adopts and incorporates by reference, except as specified in this section, the provisions of 40 Code of Federal Regulations (CFR) Part 72 with an effective date of July 1, 2006; 40 CFR Part 73 with an effective date of July 1, 2006; 40 CFR Part 74 with an effective date of July 1, 2006, Part 76 with an effective date of May 1, 1998; 40 CFR Part 77 with an effective date of July 1, 2006; and 40 CFR Part 78 with an effective date of July 11, 2005, for purposes of implementing an Acid Rain Program that meets the requirements of Federal Clean Air Act, Title IV.(b) Applicants for sources subject to 40 CFR Parts 72 - 74, 76, and 77 shall comply with those requirements.(c) If the provisions of 40 CFR Parts 72 - 74, 76, and 77 conflict with or are not included in this chapter, the provisions of 40 CFR Parts 72 - 74, 76, and 77 shall apply and take precedence except for the following.(1) References to 40 CFR Part 70 in 40 CFR Parts 72 - 74, 76, and 77 shall be satisfied by the requirements of this chapter for the purposes of implementing the Acid Rain Program.(2) The procedural requirements for Acid Rain permit revisions in 40 CFR Part 72, Subpart H (Acid Rain Permit Revisions) shall be satisfied by §122.414 of this title (relating to Acid Rain Permit Revisions).</content><note type="source"><p>Source Note: The provisions of this §122.410 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective August 3, 2006, 31 TexReg 6000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scE/s122.412"><num value="122.412">§122.412</num><heading>Acid Rain Permit Application Due Dates</heading><content>The designated representative shall submit acid rain permit applications for affected units subject to 40 Code of Federal Regulations (40 CFR) 72, 74, or 76 to the executive director by the following dates.(1) Sulfur dioxide.(A) Applications for initial Phase II acid rain permits with an existing unit under 40 CFR 72.6(a)(2) shall be submitted by January 1, 1996.(B) Applications for Phase II acid rain permits for new units shall be submitted at least 24 months before the later of January 1, 2000 or the date on which the unit commences operation.(C) Applications for Phase II acid rain permits for units under 40 CFR §72.6(a)(3)(ii) shall be submitted at least 24 months before the later of January 1, 2000 or the date on which the unit begins to serve a generator with a nameplate capacity greater than 25 megawatts of electricity.(D) Applications for Phase II acid rain permits for units under 40 CFR §72.6(a)(3)(iii) shall be submitted at least 24 months before the later of January 1, 2000, or the date on which the auxiliary firing commences operation.(E) Applications for Phase II acid rain permits with a unit under 40 CFR §72.6(a)(3)(iv) or (vii) shall be submitted before the later of January 1, 1998, or the March 1 of the year following the three- year calendar period in which the unit fails to meet the requirements of 40 CFR §72.6(b)(4) or (7).(F) Applications for Phase II acid rain permits with a unit under 40 CFR §72.6(a)(3)(v) or (vi) shall be submitted before the later of January 1, 1998, or the March 1 following the calendar year in which the unit fails to meet the requirements of 40 CFR §72.6(b)(5) or (6).(2) Nitrogen oxide. Applications for initial Phase II acid rain permits for nitrogen dioxide for affected units subject to 40 CFR 76 shall be submitted by January 1, 1998.(3) Opt-in sources. Applications for acid rain permits for opt-in sources to the acid rain program shall be submitted in accordance with 40 CFR 74.</content><note type="source"><p>Source Note: The provisions of this §122.412 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scE/s122.414"><num value="122.414">§122.414</num><heading>Acid Rain Permit Revisions</heading><content>(a) For the purposes of implementing the procedural requirements of 40 CFR 72, Subpart H (Acid Rain Permit Revisions Procedural Sections), the following sections of Subchapter C of this chapter (relating to Initial Permit Issuances, Revisions, Reopenings, and Renewals) shall be substituted.(1) The provisions of §122.212 and §122.213 of this title (relating to Applications for Administrative Permit Revisions and Procedures for Administrative Permit Revisions) shall be used to satisfy the procedural requirements of 40 CFR §72.83(b)(1) and §72.80(d) for acid rain permit administrative amendments, except that the executive director shall submit the revised portion of the acid rain permit to EPA.(2) The following provisions shall be used to satisfy the procedural requirements of 40 CFR §72.82 for acid rain fast-track modifications with the following restrictions.(A) An application for an acid rain fast-track modification must include, at a minimum, the following:(i) a description of each change;(ii) a description of the emission units affected;(iii) a statement that the change qualifies for a fast-track modification; and(iv) a certification in accordance with §122.165 of this title (relating to Certification by a Responsible Official).(B) An acid rain permit revision for a fast-track modification may be issued by the executive director provided the following:(i) the changes meet the criteria for a fast-track modification;(ii) the executive director has received an application;(iii) the conditions of the acid rain permit provide for compliance with the requirements of this chapter; and(iv) the requirements of the chapter for public notice as specified in subparagraph (E) of this paragraph, local program notification, affected state review, and EPA review have been satisfied.(C) The designated representative shall:(i) provide a copy of the complete application requesting a fast-track modification to the executive director, the EPA, affected states, and local air pollution control agencies with jurisdiction in the county in which the site is located; and(ii) send a notification, consistent with subparagraph (E) of this paragraph, of the fast-track modification permit application to persons on a mailing list maintained by the chief clerk.(D) Changes for a fast-track modification shall not be operated before the permit is revised.(E) Within five days of submission of the application for a fast-track modification to the executive director, the designated representative shall comply with the public notice requirements in §122.320(b) - (m) of this title (relating to Public Notice) and §122.322 of this title (relating to Bilingual Public Notice), except for the provisions regarding a request for or notice of a hearing or a public meeting. However, the application rather than the draft permit shall be the subject of public notice. In addition, each newspaper notice shall direct the public to submit comments to both the executive director and to the designated representative.(F) The executive director shall consider the application for a fast-track modification and comments received and provide approval, in whole or in part with changes or conditions as appropriate, or disapproval of the acid rain permit revision within 90 days of the close of the public notice comment period.(3) The provisions of §122.220 and §122.221 of this title (relating to Applications for Significant Permit Revisions and Procedures for Significant Permit Revisions) shall be used to satisfy the procedural requirements of 40 CFR §72.81(c) for acid rain permit modifications. However, at the discretion of the executive director, the procedural requirements for §§122.320, 122.322, and 122.350 of this title (relating to Public Notice; Bilingual Notice; and EPA Review) may run concurrently.(4) The provisions of §122.231 of this title (relating to Permit Reopenings) shall be used to satisfy the procedural requirements of 40 CFR §72.85 for acid rain permit reopenings. However, at the discretion of the executive director, the procedural requirements for §§122.320, 122.322, and 122.350 of this title may run concurrently.(b) The following provisions shall apply to the procedural requirements for acid rain permit revisions or modifications.(1) Changes qualifying as administrative permit revisions may be processed as fast-track modifications or significant permit revisions at the option of the designated representative.(2) Changes qualifying as fast-track modifications may be processed as significant permit revisions at the option of the designated representative.(3) The designated representative may be subject to enforcement action if the change to the permit is later determined not to qualify for the type of permit revision or modification submitted.(4) Provisional terms and conditions are not eligible for a permit shield.</content><note type="source"><p>Source Note: The provisions of this §122.414 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c122/scF"><num value="F">SUBCHAPTER F</num><heading>GENERAL OPERATING PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c122/scF/s122.501"><num value="122.501">§122.501</num><heading>General Operating Permits</heading><content>(a) The executive director may issue a general operating permit for numerous similar stationary sources provided the following:(1) the conditions of the general operating permit provide for compliance with all requirements of this chapter;(2) the requirements under §122.506 of this title (relating to Public Notice for General Operating Permits) have been satisfied;(3) the requirements under §122.330 of this title (relating to Affected State Review) have been satisfied;(4) the requirements under §122.508 this title (relating to Notice and Comment Hearings for General Operating Permits) have been satisfied;(5) the requirements under §122.350 of this title (relating to EPA Review) have been satisfied.(b) General operating permits shall not be final until the requirements in §122.360 of this title (relating to Public Petition) have been satisfied.(c) Each general operating permit shall identify the terms and conditions with which the permit holder shall comply.(d) The executive director may revise or rescind any general operating permit issued by the executive director.(1) The executive director may issue an administrative permit revision to a general operating permit provided the following:(A) the change meets the criteria for an administrative permit revision in §122.211 of this title (relating to Administrative Permit Revisions); and(B) the conditions of the general operating permit provide for compliance with the requirements of this chapter.(2) The executive director may issue a minor permit revision provided the following:(A) the change meets the criteria for a minor permit revision in §122.215 of this title (relating to Minor Permit Revisions);(B) the conditions of the general operating permit provide for compliance with the requirements of this chapter; and(C) the requirements of this chapter in §§122.509, 122.330, and 122.350 of this title (relating to Public Announcement for General Operating Permits; Affected State Review; and EPA Review) have been satisfied.(3) The executive director may issue a significant permit revision provided the following:(A) the change meets the criteria for a significant permit revision in §122.219 of this title (relating to Significant Permit Revisions);(B) the conditions of the general operating permit provide for compliance with the requirements of this chapter; and(C) the requirements of this chapter in §§122.506, 122.330, 122.508, and 122.350 of this title (relating to Public Notice for General Operating Permits; Affected State Review; Notice and Comment Hearings for General Operating Permits; and EPA Review) have been satisfied.(4) A significant permit revision shall not be final until the requirements in §122.360 of this title have been satisfied.(5) The executive director may rescind a general operating permit if a notice of the proposed rescission is provided under §122.506 of this title (relating to Public Notice for General Operating Permits).(e) The executive director shall make a copy of the draft general operating permit accessible to the EPA.(f) General operating permits must be renewed, consistent with the procedural requirements in subsection (a) of this section, at least every five years after the effective date.(g) After issuance of a general operating permit, the executive director may combine the general operating permit with a previously issued general operating permit. Notice of this action will be published in the Texas Register and on the commission's publicly accessible electronic media.</content><note type="source"><p>Source Note: The provisions of this §122.501 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective March 4, 1999, 24 TexReg 1387; amended to be effective September 4, 2000, 25 TexReg 8688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scF/s122.502"><num value="122.502">§122.502</num><heading>Authorization to Operate</heading><content>(a) The executive director shall grant a request for authorization to operate under a general operating permit to applicants who submit a complete application under §122.134 of this title (relating to Complete Application) and who qualify for the general operating permit.(b) Upon the granting of authorization to operate under a general operating permit, applicability determinations and the bases for the determinations in a general operating permit application become conditions under which the permit holder shall operate.(c) The permit holder may be subject to enforcement action for operating without a permit if the permit holder, having been granted the authorization to operate under a general operating permit, is later determined not to qualify for the general operating permit.(d) Authorizations to operate under general operating permits shall have terms not to exceed five years.(e) More than one authorization to operate under a general operating permit may be granted for a site.(f) A copy of the permit, the permit application, and the authorization to operate shall be maintained at the location specified in the authorization to operate.(g) General operating permits shall not be authorized for affected units under the acid rain program.(h) The executive director shall make a copy of the authorization to operate accessible to the EPA.</content><note type="source"><p>Source Note: The provisions of this §122.502 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective December 11, 2002, 27 TexReg 11580.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scF/s122.503"><num value="122.503">§122.503</num><heading>Application Revisions for Changes at a Site</heading><content>(a) The permit holder shall submit an application for a new authorization to operate to the executive director for the following activities at a site:(1) a change in any applicability determination or the basis of any determination in the general operating permit application; or(2) a change in the permit identification of ownership or operational control of a site where the executive director determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the old and new permit holder is maintained with the permit.(b) The application for a general operating permit under this subsection shall contain at a minimum the following:(1) a description of each change;(2) a description of the emission unit affected;(3) any changes in the applicability determinations;(4) any changes in the bases of the applicability determinations;(5) the provisional terms and conditions as defined in §122.10 of this title (relating to General Definitions);(6) a statement that the emission units qualify for the general operating permit; and(7) a certification in accordance with §122.165 of this title (relating to Certification by a Responsible Official).(c) If the following requirements are met, the change may be operated before a new authorization to operate is granted by the executive director except changes to deviation limits as defined in §122.10 of this title:(1) the permit holder complies with the following:(A) Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) and Chapter 106 of this title (relating to Permits by Rule), as applicable;(B) all applicable requirements;(C) all state-only requirements; and(D) the provisional terms and conditions as defined in §122.10 of this title;(2) the permit holder submits to the executive director the application before the change is operated;(3) the permit holder maintains, with the authorization to operate under the general operating permit the application until the executive director grants a new authorization to operate; and(4) the permit holder operates under the representations in the general operating permit application, as specified in §122.140 of this title (relating to Representations in Application).(d) The permit holder need not comply with the representations in the application that have been replaced by provisional terms and conditions before the granting of a v new authorization to operate.(e) In every case, the applicable requirements and state-only requirements are always enforceable.(f) The executive director shall grant a request for authorization to operate under a general operating permit to applicants who qualify.(g) If the emission units addressed in the application no longer meet the requirements for a general operating permit, the permit holder must submit a complete application for another operating permit.(h) If it is later determined that the permit holder does not qualify for a revision applied for under this section, the permit holder may be subject to enforcement action for operation without a permit.</content><note type="source"><p>Source Note: The provisions of this §122.503 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective March 4, 1999, 24 TexReg 1387; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective December 11, 2002, 27 TexReg 11580; amended to be effective November 22, 2018, 43 TexReg 7548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scF/s122.504"><num value="122.504">§122.504</num><heading>Application Revisions When an Applicable Requirement or State-Only Requirement is Promulgated or Adopted or a General Operating Permit is Revised or Rescinded</heading><content>(a) If the applicability determinations or the bases for the determinations in the general operating permit application change due to the promulgation or adoption of an applicable requirement or state-only requirement or the revision or rescission of a general operating permit issued by the executive director, the following requirements apply.(1) The permit holder shall submit an application for a new authorization to operate containing at a minimum the following information:(A) a description of the emission unit affected;(B) any changes in the applicability determinations;(C) the basis of each determination identified under subparagraph (B) of this paragraph;(D) the provisional terms and conditions as defined in §122.10 of this title (relating to General Definitions);(E) a statement that the emission units qualify for the general operating permit; and(F) certification in accordance with §122.165 of this title (relating to Certification by a Responsible Official).(2) The permit holder shall comply with the following:(A) Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) and Chapter 106 of this title (relating to Permits by Rule), as applicable;(B) all applicable requirements;(C) all state-only requirements; and(D) the provisional terms and conditions as defined in §122.10 of this title.(3) If the application is required as the result of the promulgation or adoption of an applicable requirement or state-only requirement, the permit holder shall do the following:(A) record the information required in paragraph (1)(A) - (E) of this subsection before the compliance date of the new applicable requirement or state-only requirement or effective date of the repealed applicable requirement or state-only requirement;(B) submit an application for a new authorization to operate no later than 90 days after the compliance date of the new applicable requirement or state-only requirement or effective date of the repealed applicable requirement or state-only requirement; and(C) maintain the information required in paragraph (1)(A) - (E) of this subsection with the authorization to operate until a new authorization is granted.(4) If the application is required as the result of the revision of a general operating permit that is not based on a change in an applicable requirement or state-only requirement, the permit holder shall do the following:(A) submit the application no later than 90 days after the issuance of the general operating permit; and(B) maintain the application with the authorization to operate until the general operating permit is revised.(5) If the application is required as the result of a revision of a general operating permit to add periodic monitoring or compliance assurance monitoring requirements, the following requirements apply.(A) The application shall include, at a minimum, the following:(i) the identification of the emission unit;(ii) the emission limitation or standard subject to compliance assurance monitoring (CAM) or periodic monitoring;(iii) an appropriate monitoring option provided in the general operating permit;(iv) if not defined by the monitoring option selected, a deviation limit;(v) a justification for any deviation limit proposed under clause (iv) of this subparagraph in accordance with subparagraph (B) or (C) of this paragraph; and(vi) any information required by the executive director to evaluate the requirements.(B) Proposed CAM options specified in the application shall be designed to provide reasonable assurance of compliance with the applicable requirements and reflect proper operation and maintenance of the control device.(C) Proposed periodic monitoring options specified in the application shall be sufficient to yield reliable data from the relevant time period that are representative of the emission unit's compliance with the applicable requirement, and testing, monitoring, reporting, or recordkeeping sufficient to assure compliance with the applicable requirement.(D) The permit holder shall provide justification for any deviation limit according to one of the following.(i) The permit holder shall submit the following performance test data:(I) control device operating parameter data from an applicable performance test conducted under conditions specified by the applicable rule;(II) if the applicable rule does not specify testing conditions or only partially specifies testing conditions, control device operating parameter data from an applicable performance test conducted under conditions representative of maximum emissions potential under anticipated operating conditions at the emission unit; and(III) a statement that no changes to the emission unit, including control device, have taken place that could result in a significant change in the control system performance, indicators (such as emissions, control device parameters, process parameters, or inspection and maintenance activities) to be monitored, or deviation limits since the performance test was conducted.(ii) The permit holder shall submit manufacturer's recommendations, engineering calculations, and/or historical data.(E) The executive director will not grant a request for a new authorization to operate under a general operating permit if the deviation limits have been deemed unacceptable. In such case, revised justification for deviation limits under subparagraph (D) of this paragraph shall be submitted for approval.(F) Unless otherwise approved by the executive director, if a continuous emission monitoring system (CEMS), continuous opacity monitoring system (COMS), or predictive emission monitoring system (PEMS) is required by an applicable requirement, the permit holder shall submit a monitoring option from the general operating permit that includes the use of the CEMS, COMS, or PEMS to satisfy the requirements of this subchapter.(G) The permit holder shall begin operation of the monitoring no later than 180 days after the issuance of the revised general operating permit.(b) The permit holder need not reapply for a revised general operating permit, provided the following:(1) the emission units addressed in the application qualify for the revised general operating permit;(2) the applicability determinations remain unchanged; and(3) the basis for each applicability determination remain unchanged.(c) If a general operating permit is rescinded and not replaced, the authorization to operate under the general operating permit is revoked. The permit holder must apply for another operating permit no later than the date the general operating permit is rescinded.(d) If as a result of the revision of a general operating permit the permit holder no longer qualifies for the general operating permit, the permit holder must apply for another operating permit no later than the date of issuance of the revised general operating permit.(e) Those representations in the application not affected by the revision of a general operating permit remain conditions under which the permit holder shall operate.(f) In every case, the applicable requirements and state-only requirements are always enforceable.(g) The permit holder need not comply with the representations in the application or the terms and conditions codified in the general operating permit that have been replaced by provisional terms and conditions before the granting of a new authorization to operate.</content><note type="source"><p>Source Note: The provisions of this §122.504 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective March 4, 1999, 24 TexReg 1387; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective December 11, 2002, 27 TexReg 11580; amended to be effective November 22, 2018, 43 TexReg 7548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scF/s122.505"><num value="122.505">§122.505</num><heading>Renewal of the Authorization To Operate Under a General Operating Permit</heading><content>(a) Authorizations to operate under general operating permits shall expire no later than five years from the date of the initial authorization to operate or renewal of the authorization to operate.(b) The executive director shall provide written notice to the permit holder that the authorization to operate under the general operating permit is scheduled for review.(1) The notice will be provided by mail or electronic communication no later than 12 months before the expiration of the authorization to operate under the general operating permit.(2) The notice shall specify the procedure for submitting a renewal application.(3) Failure to receive notice does not affect the expiration date of the authorization or the requirement to submit a timely and complete application.(c) A renewal application shall be submitted by the permit holder to the executive director at least six months, but no earlier than 18 months, before the date of expiration of the authorization to operate under the general operating permit.(d) The executive director shall grant a request for a renewal of an authorization to operate under a general operating permit to applicants who submit a complete application under §122.243 of this title (relating to Permit Renewal Procedures) and who qualify for the general operating permit.(e) Expiration of the authorization to operate terminates the permit holder's right to operate unless a timely and complete renewal application has been submitted. After a timely and complete renewal application is submitted, the permit holder may continue to operate under the terms and conditions of the previous authorization to operate until the new authorization to operate is granted or denied.(f) In determining whether and under what conditions an authorization to operate under a general operating permit should be renewed, the executive director shall consider the following:(1) whether the general operating permit, in conjunction with the general operating permit application, provides for compliance with all applicable requirements and an accurate listing of state-only requirements; and(2) the site's compliance status with this chapter and the terms and conditions of the existing permit.(g) The executive director shall make a copy of the renewal application, general operating permit, and any required notices accessible to the United States Environmental Protection Agency.</content><note type="source"><p>Source Note: The provisions of this §122.505 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective September 4, 2000, 25 TexReg 8688; amended to be effective November 22, 2018, 43 TexReg 7548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scF/s122.506"><num value="122.506">§122.506</num><heading>Public Notice for General Operating Permits</heading><content>(a) Before the issuance, significant permit revision, or rescission of any general operating permit, the executive director shall publish notice of the opportunity for public comment and hearing on the draft general operating permit consistent with the requirements of this section. The executive director shall publish notice of a draft general operating permit in the Texas Register , the commission's publicly accessible electronic media, and in a newspaper of general circulation in the area affected by the general operating permit. If the general operating permit has statewide applicability, the notice shall be published in the daily newspaper of largest general circulation within each of the following metropolitan areas: Austin, Dallas, and Houston. The notice shall contain the following information: (1) a description of the activities involved in the draft general operating permit; (2) the location and availability of copies of the draft general operating permit; (3) a description of the comment procedures, including the duration of the public notice comment period and procedures to request a hearing; (4) the notification that a person who may be affected by the emission of air pollutants from emission units that may be authorized to operate under the general operating permit is entitled to request a notice and comment hearing; and (5) the name, address, and phone number of the commission office to be contacted for further information. (b) During the 30-day public notice comment period, any person who may be affected by emissions from emission units that may be authorized to operate under the general operating permit may request in writing a notice and comment hearing on a draft general operating permit. (c) The executive director shall make a copy of the general operating permit and any required notices accessible to the EPA and all local air pollution control agencies with jurisdiction in the counties that may be affected by the general operating permit. (d) The executive director shall make the draft general operating permit available for public inspection throughout the comment period during business hours at the commission's central office. (e) The executive director shall receive public comment for 30 days after the notice of the public comment period is published. During the comment period, any person may submit written comments on the draft general operating permit. (f) The draft general operating permit may be changed based on comments pertaining to whether the general operating permit provides for compliance with the requirements of this chapter. (g) The executive director shall respond to comments consistent with §122.345 of this title (relating to Notice of Proposed Final Action). (h) The executive director shall provide 30 days' advance notice of the hearing. (i) If the executive director combines general operating permits as specified in §122.501(g) of this title, notice of this action will be published in the Texas Register and the commission's publicly accessible electronic media.</content><note type="source"><p>Source Note: The provisions of this §122.506 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective March 4, 1999, 24 TexReg 1387; amended to be effective September 4, 2000, 25 TexReg 8688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scF/s122.508"><num value="122.508">§122.508</num><heading>Notice and Comment Hearings for General Operating Permits</heading><content>(a) All hearings regarding general operating permits shall be conducted under the procedures in this section.(b) Any person who may be affected by emissions from emission units that may be authorized to operate under the general operating permit may request that the executive director hold a hearing on a draft general operating permit.(c) The executive director shall decide whether to hold a hearing. The executive director is not required to hold a hearing if the basis of the request by a person who may be affected by emissions from emission units that may be authorized to operate under the general operating permit is determined to be unreasonable. If a hearing is requested by a person who may be affected by emissions from emission units that may be authorized to operate under the general operating permit, and that request is reasonable, the executive director shall hold a hearing.(d) The executive director shall publish notice of a hearing on a draft general operating permit. The notice must be published at least 30 days before the date set for the hearing. The notice must include, at a minimum, the following:(1) the time, place, and nature of the hearing;(2) a brief description of the purpose of the hearing; and(3) the name and phone number of the commission office to be contacted to verify that a hearing will be held.(e) At the executive director's discretion, the hearing notice may be combined with the notice of the opportunity for public comment required by this subchapter.(f) Any person may submit oral or written statements and data concerning the draft general operating permit.(1) Reasonable time limits may be set for oral statements, and the submission of statements in writing may be required.(2) The period for submitting written comments is automatically extended to the close of the hearing.(3) At the hearing, the period for submitting written comments may be extended beyond the close of the hearing.(g) A tape recording or written transcript of the hearing shall be made available to the public.(h) Any person who believes that any condition of the draft general operating permit is inappropriate or that the preliminary decision to issue the general operating permit is inappropriate, must raise all reasonably ascertainable issues and submit all reasonably available arguments supporting that position by the end of the public comment period.(i) Any supporting materials for comments submitted under subsection (f) of this section shall be included in full and may not be incorporated by reference, unless the materials are one of the following:(1) already part of the administrative record in the same proceedings;(2) state or federal statutes and regulations;(3) EPA documents of general applicability; or(4) other generally available reference materials.(j) The executive director shall keep a record of all comments and also of the issues raised in the hearing. This record shall be available to the public.(k) The draft general operating permit rule may be changed based on comments pertaining to whether the draft general operating permit provides for compliance with the requirements of this chapter.(l) The executive director shall respond to comments consistent with §122.345 of this title (relating to Notice of Proposed Final Action).</content><note type="source"><p>Source Note: The provisions of this §122.508 adopted to be effective November 10, 1997, 22 TexReg 10677; amended to be effective March 4, 1999, 24 TexReg 1387.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scF/s122.509"><num value="122.509">§122.509</num><heading>Public Announcement for General Operating Permits</heading><content>(a) The public announcement requirements in this section apply to minor permit revisions to general operating permits.(b) The executive director shall publish an announcement of a draft general operating permit for a minor permit revision to a general operating permit on the commission's publicly accessible electronic media. The announcement shall contain the following:(1) the location and availability of the following:(A) the draft general operating permit;(B) all other relevant supporting materials in the public files of the commission;(2) a description of the comment procedures, including the duration of the public announcement comment period; and(3) name, address, and phone number of the commission office to be contacted for further information.(c) The executive director shall make a copy of the public announcement and date of publication accessible to the EPA and all local air pollution control agencies with jurisdiction in the counties that may be affected by the general operating permit.(d) The executive director shall furnish a notice of the public announcement to any air pollution control agency of any affected state.(e) The executive director shall make the draft general operating permit available for public inspection throughout the comment period during business hours at the commission's central office (and at the commission's regional office where the site is located).(f) The executive director shall receive public comment for 30 days after the announcement of the draft general operating permit is published. During the comment period, any person may submit written comments on the draft general operating permit.(g) The draft general operating permit may be changed based on comments pertaining to whether the general operating permit provides for compliance with the requirements of this chapter.(h) Public notice requirements for general operating permits satisfy public announcement requirements.(i) The executive director shall respond to comments consistent with §122.345 of this title (relating to Notice of Proposed Final Action).</content><note type="source"><p>Source Note: The provisions of this §122.509 adopted to be effective March 4, 1999, 24 TexReg 1387.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scF/s122.510"><num value="122.510">§122.510</num><heading>General Operating Permits Adopted by the Commission</heading><content>(a) Any general operating permit in this subchapter adopted by the commission shall remain in effect until it is repealed under the APA.(b) Any authorization to operate under a general operating permit in this subchapter adopted by the commission that is replaced with a general operating permit issued by the executive director shall be automatically converted to an authorization to operate under the general operating permit issued by the executive director. Provided the applicability determinations and the bases for the determinations affecting a site remain unchanged, the permit holder is not required to submit an application for the general operating permit issued by the executive director.</content><note type="source"><p>Source Note: The provisions of this §122.510 adopted to be effective March 4, 1999, 24 TexReg 1387.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c122/scG"><num value="G">SUBCHAPTER G</num><heading>PERIODIC MONITORING AND COMPLIANCE ASSURANCE MONITORING</heading><section identifier="/us/state/tx/tac/t30/p1/c122/scG/s122.602"><num value="122.602">§122.602</num><heading>Periodic Monitoring Applicability</heading><content>(a) Periodic monitoring applies to an emission unit at a site that is subject to this chapter provided the emission unit is subject to an emission limitation or standard in an applicable requirement except as noted in subsection (b) of this section.(b) Periodic monitoring shall not apply to emission limitations or standards for which the executive director has determined that the applicable requirement has periodic monitoring (which may consist of recordkeeping) sufficient to yield reliable data from the relevant time period that are representative of the emission unit's compliance with the applicable requirement, and testing, monitoring, reporting, or recordkeeping sufficient to assure compliance with the applicable requirement. These emission limitation or standards include, but are not limited to, the following:(1) emission limitations or standards proposed by the EPA after November 15, 1990 under FCAA, §111 (Standards of Performance for New Stationary Sources) or §112 (Hazardous Air Pollutants);(2) emission limitations or standards under FCAA, Title IV (the Acid Rain Program);(3) emission limitations or standards for which an applicable requirement specifies a continuous compliance determination method, unless the applicable compliance method includes an assumed control device emission reduction factor that could be affected by the actual operation and maintenance of the control device (such as a surface coating line controlled by an incinerator for which continuous compliance is determined by calculating emissions on the basis of coating records and an assumed control device efficiency factor based on an initial performance test); and(4) other emission limitations or standards specified as exempt by the EPA.</content><note type="source"><p>Source Note: The provisions of this §122.602 adopted to be effective September 4, 2000, 25 TexReg 8688; amended to be effective December 11, 2002, 27 TexReg 11580.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scG/s122.604"><num value="122.604">§122.604</num><heading>Compliance Assurance Monitoring Applicability</heading><content>(a) To determine the applicability of compliance assurance monitoring (CAM), each emission unit shall be considered separately with respect to each air pollutant and the term control device, as used in this subchapter, shall have the meaning defined in §122.10 of this title (relating to General Definitions).(b) Except for emission units that are exempt under subsection (d) of this section, CAM applies to an emission unit at a major source subject to this chapter provided the following:(1) the emission unit is subject to an emission limitation or standard for an air pollutant (or surrogate thereof) in an applicable requirement, except as noted in subsection (c) of this section;(2) the emission unit uses a control device to achieve compliance with the emission limitation or standard in paragraph (1) of this subsection; and(3) the emission unit has the pre-control device potential to emit greater than or equal to the amount in tons per year required for a site to be classified as a major source, as defined in this chapter.(c) CAM shall not apply to any of the following:(1) emission limitations or standards proposed by the EPA after November 15, 1990 under FCAA, §111 (Standards of Performance for New Stationary Sources) or §112 (Hazardous Air Pollutants);(2) emission limitations or standards under FCAA, Title VI (Stratospheric Ozone Protection);(3) emission limitations or standards under FCAA, Title IV (the Acid Rain Program);(4) emission limitations or standards that apply solely under an emissions trading program approved or promulgated by the EPA under the FCAA that allows for trading emissions;(5) emissions caps that meet the requirements specified in 40 Code of Federal Regulations (CFR) §70.4(b)(12) (State Program Submittals and Transition);(6) emission limitations or standards for which an applicable requirement specifies a continuous compliance determination method, unless the applicable compliance method includes an assumed control device emission reduction factor that could be affected by the actual operation and maintenance of the control device (such as a surface coating line controlled by an incinerator for which continuous compliance is determined by calculating emissions on the basis of coating records and an assumed control device efficiency factor based on an initial performance test); or(7) other emission limitations or standards specified as exempt by the EPA.(d) CAM shall not apply to a utility unit, as defined in 40 CFR §72.2 (Definitions), that is municipally-owned if the permit holder documents in a permit application the following:(1) the utility unit is exempt from all monitoring requirements in 40 CFR Part 75 (Continuous Emission Monitoring) (including the appendices);(2) the utility unit is operated for the sole purpose of providing electricity during periods of peak electrical demand or emergency situations, as demonstrated by historical operating data and relevant contractual obligation, and will be operated consistent with that purpose throughout the permit term; and(3) the actual emissions from the utility unit, based on the average annual emissions over the last three calendar years of operation (or the total time the unit has been in operation for a unit in operation less than three years), are less than 50% of the amount in tons per year required for a site to be classified as a major source and are expected to remain so.(e) References in 40 CFR Part 64 to 40 CFR Part 70 (Operating Permit Program) shall be satisfied by the requirements of this chapter for the purpose of implementing 40 CFR Part 64.</content><note type="source"><p>Source Note: The provisions of this §122.604 adopted to be effective December 11, 2002, 27 TexReg 11580.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c122/scG/s122.606"><num value="122.606">§122.606</num><heading>Compliance Assurance Monitoring Quality Improvement Plans</heading><content>(a) Based on the frequency of deviations, the cause of deviations, the magnitude of deviations, the permit holder's response to deviations, or other information that indicates that the emission unit or control device is not being maintained and operated consistent with good air pollution control practices, the executive director may require implementation of a quality improvement plan (QIP).(b) A QIP shall meet all of the requirements specified in 40 Code of Federal Regulations §64.8 concerning Quality Improvement Plan Requirements.(c) The permit holder shall maintain the written QIP with the permit or authorization to operate under a general operating permit.</content><note type="source"><p>Source Note: The provisions of this §122.606 adopted to be effective December 11, 2002, 27 TexReg 11580.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c205"><num value="205">CHAPTER 205</num><heading>GENERAL PERMITS FOR WASTE DISCHARGES</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c205/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PERMITS FOR WASTE DISCHARGES</heading><section identifier="/us/state/tx/tac/t30/p1/c205/scA/s205.1"><num value="205.1">§205.1</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:(1) Compliance history--The record of all notices from the commission, including notices of violation from the executive director; and of all orders of the commission, of any other agency or political subdivision of the State of Texas and of the United States Environmental Protection Agency (EPA) pertaining to an applicant's adherence to environmental laws and rules of the State of Texas or the United States; with the terms of any permit, compliance agreement or order issued by the commission or the USEPA; and with any final judicial decision or settlement addressing the applicant's adherence to such environmental laws and rules. The history shall be for the five-year period before the date on which the NOI is filed or, if an NOI is not required, the five-year period before the permittee begins operating under the general permit. It shall not include any order that is precluded by its terms or by law from becoming part of the applicant's compliance history.(2) General permit--A permit issued under the provisions of this chapter authorizing the discharge of waste into or adjacent to water in the state for one or more categories of waste discharge within a geographical area of the state or the entire state as provided by Texas Water Code (TWC), §26.040.(3) Individual permit--A permit, as defined in the TWC, §26.001, issued by the commission or the executive director to a specific person or persons in accordance with the procedures prescribed in the TWC, Chapter 26, (other than TWC, §26.040).(4) Notice of change or NOC--A written submittal to the executive director from a discharger authorized under a general permit providing changes to information previously provided to the agency, or any changes with respect to the nature or operations of the facility, or the characteristics of the discharge.(5) Notice of intent or NOI--A written submittal to the executive director from a discharger requesting coverage under the terms of a general permit.(6) Notice of termination or NOT--A written submittal to the executive director from a discharger authorized under a general permit requesting termination of coverage.(7) Texas Pollutant Discharge Elimination System (TPDES)--The state program authorized under Clean Water Act, §§307, 318, 402, and 405 for issuing, amending, terminating, monitoring, and enforcing permits, and imposing and enforcing pretreatment requirements under the Texas Water Code and Texas Administrative Code regulations.</content><note type="source"><p>Source Note: The provisions of this §205.1 adopted to be effective June 21, 1998, 23 TexReg 6227; amended to be effective September 13, 2000, 25 TexReg 8862.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c205/scA/s205.2"><num value="205.2">§205.2</num><heading>Purpose and Applicability</heading><content>(a) The commission may issue a general permit to authorize the discharge of waste into or adjacent to water in the state by category if the commission finds the discharges in the category are storm water or the dischargers in the category:(1) engage in the same or substantially similar types of operations;(2) discharge the same types of waste;(3) are subject to the same requirements regarding effluent limitations or operating conditions;(4) are subject to the same or similar monitoring requirements; and(5) are more appropriately regulated under a general permit than under individual permits, on the basis that both:(A) the general permit can be readily enforced and the executive director can adequately monitor compliance with the terms of the general permit; this requirement being satisfied if the provisions of the general permit are clear and unambiguous and it requires adequate monitoring, recordkeeping, and reporting, appropriate to the type of activity authorized; and(B) the category of discharges covered by the general permit will not include a discharge of pollutants that will cause significant adverse effects to surface or groundwater quality.(b) The commission may issue a general permit to authorize the discharge of waste by categories of dischargers designated under subsection (a) of this section either within the entire state or within a discrete geographical area identified by an appropriate division or combination of geographic or political boundaries.(1) General permits granted for discrete geographical areas may be based upon, but not limited to, factors such as related water quality standards, climatological conditions, and watershed specific standards in accordance with Chapter 311 of this title (relating to Watershed Protection).(2) Discharges to be regulated with effluent limitations specific to a particular water body may be covered under a general permit limited to a particular watershed or geographical area.(c) Authorization to discharge under a general permit does not confer a vested right.(d) Where sources within a specific category or subcategory of dischargers are subject to water quality-based limits imposed under Chapter 307 of this title (relating to Texas Surface Water Quality Standards), the sources in that specific category or subcategory shall be subject to the same water quality-based effluent limitations in Chapter 307.</content><note type="source"><p>Source Note: The provisions of this §205.2 adopted to be effective June 21, 1998, 23 TexReg 6227; amended to be effective September 13, 2000, 25 TexReg 8862; amended to be effective August 15, 2002, 27 TexReg 7143.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c205/scA/s205.3"><num value="205.3">§205.3</num><heading>Public Notice, Public Meetings, and Public Comment</heading><content>(a) Notice shall be published as follows. (1) If the draft general permit will not have statewide applicability, the agency shall publish notice of each draft general permit in the Texas Register and in a daily or weekly newspaper of general circulation in the area affected by the activity that is the subject of the proposed general permit. (2) For draft general permits with statewide applicability, notice shall be published in the Texas Register and in at least one newspaper of statewide or regional circulation. (3) The public notice shall be published not later than the 30th day before the commission considers the approval of a general permit. (b) For Texas Pollutant Discharge Elimination System general permits, mailed notice of the draft general permit will also be provided to the following: (1) the county judge of the county or counties in which the dischargers under the general permit could be located; (2) if applicable, persons for which notice is required in 40 Code of Federal Regulations (CFR) §124.10(c); and (3) any other person the executive director or chief clerk may elect to include. (c) The contents of a public notice of a draft general permit shall: (1) include the applicable information described in §39.411 of this title (relating to Text of Public Notice); (2) include an invitation for written comments by the public regarding the draft general permit; (3) specify a comment period of at least 30 days; and (4) include either a map or description of the permit area. (d) Requirements relating to public meetings are as follows. (1) The agency may hold a public meeting to provide an additional opportunity for public comment and shall hold such a public meeting when the executive director determines, on the basis of requests, that a significant degree of public interest in a draft general permit exists. (2) Notice of a public meeting shall be by publication in the Texas Register not later than the 30th day before the date of the meeting. (3) Notice of the public meeting shall be mailed to the following: (A) the county judge of the county or counties in which the dischargers under the general permit could be located; (B) if applicable, persons for which notice is required in 40 CFR §124.10(c); (C) any other person the executive director or chief clerk may elect to include; and (D) persons who filed public comment or request for a public meeting on or before the deadline for filing public comment or request for a public meeting. (4) The contents of a public notice of a public meeting shall include the applicable information described in §39.411 of this title. Each notice must include an invitation for written or oral comments by the public regarding the draft general permit. (5) The public comment period shall automatically be extended to the close of any public meeting held by the agency on the proposed general permit. (e) If the agency receives public comment during the comment period relating to issuance of a general permit, the executive director shall respond in writing to these comments, and this response shall be made available to the public and filed with the chief clerk at least ten days before the commission considers the approval of the general permit. The response shall address written comments received during the comment period and oral or written comments received during any public meeting held by the agency. The commission shall consider all public comment in making its decision and shall either adopt the executive director's response to public comment or prepare its own response. (1) The commission shall issue its written response to comments on the general permit at the same time the commission issues or denies the general permit. (2) A copy of any issued general permit and response to comments shall be made available to the public for inspection at the agency's Austin office and also in the appropriate regional offices. (3) A notice of the commission's action on the proposed general permit and a copy of its response to comments shall be mailed to each person who made a comment. (4) A notice of the commission's action on the proposed general permit and the text of its response to comments shall be published in the Texas Register. (f) Except as specified in subsection (g) of this section, the requirements of subsections (a) - (e) of this section apply to processing of a new general permit, an amendment, renewal, revocation, or cancellation of a general permit. (g) A general permit may be proposed for minor amendment or minor modification, as described in §305.62(c) of this title (relating to Amendment), without newspaper publication.</content><note type="source"><p>Source Note: The provisions of this §205.3 adopted to be effective June 21, 1998, 23 TexReg 6227; amended to be effective September 13, 2000, 25 TexReg 8862; amended to be effective May 14, 2020, 45 TexReg 3095.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c205/scA/s205.4"><num value="205.4">§205.4</num><heading>Authorizations and Notices of Intent</heading><content>(a) A qualified discharger may obtain authorization to operate under a general permit by complying with the general permit's conditions for gaining coverage.(1) A general permit shall specify either an applicable deadline for filing the notice of intent (NOI), or that an NOI is not required prior to commencement of a qualifying discharge.(2) No new discharge under the authority of a general permit may commence after a general permit has expired.(3) For those general permits requiring an NOI, a discharger may begin discharging under the general permit after the date or period of time specified in the general permit unless the executive director or commission before that time notifies the discharger pursuant to subsections (c) or (e) of this section that the discharger is not eligible for authorization under the general permit.(4) The executive director shall provide written notice to a discharger if the executive director determines that the discharger is not eligible for authorization under the general permit. The content of the notice is described in subsections (c) and (d) of this section.(5) An NOI shall be submitted to the executive director in a form or format that is specified in the general permit or otherwise set out in commission rules.(b) The following requirements apply to existing individual permittees.(1) The general permit shall specify how a discharger covered by an individual permit may substitute authorization to discharge waste under the general permit. At a minimum, the general permit shall provide that coverage under the general permit shall not commence until:(A) the permittee has submitted an NOI, if one is required by the general permit, as specified by subsection (f) of this section; and(B) the executive director has received the discharger's written request that the individual permit be canceled or amended, as appropriate.(2) The general permit may allow a discharger who is covered by an individual permit to obtain authorization to discharge waste from a new outfall under a general permit. Agency action on a new discharge does not affect the status of the discharger's existing individual permit. The general permit shall describe how to obtain authorization to discharge waste from a new outfall. Authorization under the general permit shall not commence until the discharger:(A) submits an NOI, if one is required by the general permit, as specified in subsection (f) of this section; and(B) requests and receives written approval from the executive director of a minor modification to their individual permit exempting the new outfall from coverage under the individual permit.(3) Except as provided under subsection (b)(2) of this section, the commission shall cancel an individual permit if the executive director or commission does not deny the NOI or authorization under subsection (c) or (e) of this section.(c) The following requirements apply to denial of an authorization or notice of intent.(1) The executive director shall provide written notice to a discharger if the executive director denies the discharger's NOI or authorization to discharge under a general permit, including, at a minimum, a brief statement of the basis for this decision.(2) The executive director shall deny authorization to discharge under an existing general permit for the following reasons:(A) the quantity of discharge, the type of waste, or the type of operation does not comply with the general permit;(B) the discharge is required to be authorized under the Texas Pollutant Discharge Elimination System (TPDES), and discharging under the general permit would result in backsliding prohibited under 40 Code of Federal Regulations §122.44(l), as amended and adopted under §305.531(3) of this title (relating to Establishing and Calculating Additional Conditions and Limitations for TPDES Permits);(C) the discharge causes a violation of the Texas Surface Water Quality Standards;(D) the discharge is located where it causes or could cause an adverse impact upon a critical area, as defined in 31 TAC §501.3 (relating to Definitions and Abbreviations), and there is a suitable location that is available and capable of being used in light of cost, technology, and logistics;(E) the discharger or facility:(i) has failed to pay any portion of a delinquent fee or charge assessed by the executive director;(ii) is not in compliance with all requirements, conditions, and time frames specified in an unexpired commission final enforcement order relating to the activity regulated by the general permit; or(iii) is subject to an unexpired enforcement order that requires the facility to comply with operating conditions different from or additional to the requirements of the general permit;(F) the discharge would be inconsistent with the state water quality management plan (WQMP).(3) The executive director may deny authorization to discharge under an existing general permit for reasons including, but not limited to, the following:(A) a change has occurred in the availability of demonstrated technology or practices for the prevention, control, or abatement of pollutants applicable to the discharge necessary to be implemented to meet applicable federal or state standards;(B) specific effluent limitation guidelines are promulgated for a discharge covered by the general TPDES permit, but the general permit has not yet been amended to incorporate the new effluent limitation guidelines;(C) the owner and/or the operator of the facility has not filed an NOI in accordance with §305.43 of this title (relating to Who Applies);(D) the discharger has been determined by the executive director to have been out of compliance with any rule, order, or permit of the commission, including non-payment of fees assessed by the executive director;(E) the discharge contains pollutants that cause significant adverse effects to water quality. In making this determination, the executive director shall consider the following factors:(i) the location of the discharge;(ii) the size of the discharge;(iii) the quantity and nature of pollutants discharged;(iv) whether the discharge would adversely affect groundwater quality, inconsistent with the policy specified in the Texas Water Code (TWC), §26.401; and(v) other factors relating to the protection of water quality standards; and(F) the discharger or facility is the subject of an unresolved agency enforcement action in which the executive director has issued written notice that enforcement has been initiated.(4) If authorization to discharge is denied under this subsection, the executive director may require the person whose authorization is denied to apply for and obtain an individual permit. If the discharger is seeking to replace its individual permit with general permit coverage, but the discharger's general permit authorization is denied, the discharger shall apply for renewal of the individual permit prior to the expiration date of its individual permit to maintain authorization to discharge, in accordance with §305.63 of this title (relating to Renewal).(d) The following requirements apply to suspensions of authorizations and NOIs.(1) The general permit shall describe the procedures for suspension of authorization and NOIs under a general permit. The general permit shall require the executive director to provide written notice to a discharger that the executive director intends to suspend a discharger's authority to discharge under a general permit, including:(A) a brief statement of the basis for this decision under this subsection;(B) a statement of whether the discharger shall immediately cease the discharge;(C) a statement setting the deadline for filing the application for an individual permit; and(D) a statement that the person's discharge authorization under the general permit shall be suspended on the effective date of the commission's action on the individual permit application unless the commission expressly provides otherwise, or unless the executive director has required the discharger to immediately cease the discharge;(2) Except for suspensions under paragraph (5)(F) of this subsection relating to storm water discharges, if a discharger's authorization under a general permit is suspended, the discharger shall immediately cease the discharge.(3) The executive director may require the person whose authorization to discharge is suspended to apply for and obtain an individual permit.(4) After providing written notice to the discharger, the executive director shall suspend authorization to discharge under an existing general permit for the following reasons:(A) the quantity of discharge, the type of waste, or the type of operation does not comply with the general permit;(B) the discharge causes a violation of the Texas Surface Water Quality Standards;(C) the discharger or facility:(i) has failed to pay any portion of a delinquent fee or charge assessed by the executive director;(ii) is not in compliance with all requirements, conditions, and timeframes specified in an unexpired commission final enforcement order relating to the activity regulated by the general permit, or(iii) is subject to an unexpired enforcement order that requires the facility to comply with operating conditions different from or additional to the requirements of the general permit;(D) the discharge is inconsistent with the state WQMP;(E) an application is not received by the deadline specified by rule or in the general permit.(5) After providing written notice to the discharger, the executive director may suspend authorization to discharge under an existing general permit for reasons including, but not limited to, the following:(A) a change has occurred in the availability of demonstrated technology or practices for the prevention, control, or abatement of pollutants applicable to the discharge necessary to be implemented to meet applicable federal or state standards;(B) specific effluent limitation guidelines are promulgated for a discharge covered by the general TPDES permit, but the general permit has not yet been amended to incorporate the new effluent limitation guidelines;(C) the owner and/or the operator of the facility has not filed an NOI in accordance with §305.43 of this title;(D) circumstances have changed since the time of the NOI so that the discharge is no longer appropriately controlled to meet applicable water quality standards under the general permit, or either a temporary or permanent reduction, or elimination of the authorized discharge is necessary;(E) the discharger has been determined by the executive director to have been out of compliance with any rule, order, or permit of the commission, including non-payment of fees assessed by the executive director;(F) the discharge contains pollutants that cause significant adverse effects to water quality. In making this determination, the executive director shall consider the following factors:(i) the location of the discharge;(ii) the size of the discharge;(iii) the quantity and nature of pollutants discharged;(iv) whether the discharge would adversely affect groundwater quality, inconsistent with the policy specified in the TWC, §26.401; and(v) other factors relating to the protection of water quality standards; and(G) the discharger or facility is the subject of an unresolved agency enforcement action in which the executive director has issued written notice that enforcement has been initiated.(e) The commission, after hearing, shall deny or suspend a discharger's authority to discharge under a general permit if the commission determines that the discharger operates any facility for which the discharger's compliance history contains violations constituting a recurring pattern of egregious conduct that demonstrates a consistent disregard for the regulatory process, including a failure to make a timely and substantial attempt to correct the violations. A hearing under this subsection is not subject to Texas Government Code, Chapter 2001.(f) The general permit shall describe the content of the NOI, if one is required by the general permit. At a minimum, the NOI shall require the submission of information necessary for adequate program implementation including, at a minimum, the legal name and address of the owner and operator, the facility name and address, specific description of its location, type of facility or discharges, and the receiving water(s). An NOI shall be signed in accordance with §305.44 of this title (relating to Signatories to Applications).(g) Unless otherwise provided in the general permit or in §305.53 of this title (relating to Application Fee), a person seeking authorization by general permit shall submit a $100 application fee payable to the agency at the time of filing an NOI. If a person is denied coverage under the general permit in accordance with subsection (c) or (e) of this section, any application fee will be applied to the application fee required for an individual permit application for the same discharge.(h) The general permit shall require a person authorized to discharge waste under a general permit to submit up-to-date information to the executive director in a notice of change within a specified period of time prior to a change in previous information provided to the agency or any other change with respect to the nature or operations of the facility or the characteristics of the discharge. In cases where the general permit requires that an NOI be submitted, the general permit shall require that when the ownership of the facility changes or is transferred, a notice of termination be submitted by the present owner, and a new NOI be submitted by the new owner, not later than ten days prior to the change in ownership.(i) When requested by a county or municipality, the commission may establish a provision in a general permit for notification by the discharger to a county judge or mayor of a municipality of NOIs that would allow discharges within their respective jurisdiction. If the executive director or commission denies authorization for a proposed discharge in the county or municipality, the executive director shall notify the county judge or mayor.(j) The executive director's decisions on NOIs under this chapter are subject to §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).</content><note type="source"><p>Source Note: The provisions of this §205.4 adopted to be effective June 21, 1998, 23 TexReg 6227; amended to be effective September 13, 2000, 25 TexReg 8862.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c205/scA/s205.5"><num value="205.5">§205.5</num><heading>Permit Duration, Amendment, and Renewal</heading><content>(a) A general permit may be issued for a term not to exceed five years. After notice and comment as provided by §205.3 of this title (relating to Public Notice, Public Meetings, and Public Comment), a general permit may be amended, revoked, or canceled by the commission or renewed by the commission for an additional term or terms not to exceed five years each.(b) A general permit remains in effect until amended, revoked, or canceled by the commission or, unless renewed by the commission, until it expires. If before its expiration, the commission proposes to renew a general permit, the general permit shall remain in effect after the expiration date for those existing discharges covered by the general permit. The general permit shall remain in effect for these dischargers until the date on which the commission takes final action on the proposed permit renewal. No new notices of intent (NOIs) will be accepted or new authorizations honored for authorization under the general permit after the expiration date.(c) Upon issuance of a renewed or amended general permit, all facilities, including those covered under the expired general permit, shall submit an NOI, if one is required by the general permit, in accordance with the requirements of the new permit.(d) If the commission has not proposed to renew a general permit at least 90 days before its expiration date, dischargers authorized under the general permit shall submit an application for an individual permit before the general permit's expiration. If an application for an individual permit is submitted before the general permit's expiration, authorization under the expired general permit remains in effect until the issuance or denial of an individual permit.(e) The commission may, through renewal or amendment of a general permit, add or delete requirements or limitations to the permit. The commission may provide in the general permit a reasonable time to allow existing dischargers covered by the general permit to make the changes necessary to comply with any additional requirements deemed substantive by the commission.(f) Before issuing a general permit, the commission shall review the general permit for consistency with the Texas Coastal Management Plan (CMP). The commission must find that the general permit is consistent with the applicable CMP goals and policies and that it will not adversely affect any applicable coastal natural resource areas as identified in the CMP before the commission may issue the general permit.</content><note type="source"><p>Source Note: The provisions of this §205.5 adopted to be effective June 21, 1998, 23 TexReg 6227; amended to be effective September 13, 2000, 25 TexReg 8862.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c205/scA/s205.6"><num value="205.6">§205.6</num><heading>Annual Fee Assessments</heading><content>A person authorized by a general permit shall pay an annual waste treatment inspection fee under Texas Water Code (TWC), §26.0291, consistent with §§305.501-305.507 of this title (relating to the Waste Treatment Inspection Fee Program) or as specified in the general permit; and may be subject to an annual watershed monitoring and assessment fee under TWC, §26.0135(h), consistent with §220.21 of this title (relating to Water Quality Assessment Fees) or as specified in the general permit.</content><note type="source"><p>Source Note: The provisions of this §205.6 adopted to be effective June 21, 1998, 23 TexReg 6227; amended to be effective September 13, 2000, 25 TexReg 8862.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c205/scA/s205.7"><num value="205.7">§205.7</num><heading>Additional Characteristics and Conditions for General Permits</heading><content>40 Code of Federal Regulations (CFR) §122.28, as amended through April 2, 1992, at 57 FedReg 11413, is adopted by reference, except 40 CFR §122.28(b)(3)(ii) and (c), and except as follows: where 40 CFR §122.28 refers to an "NPDES permit," the references are more properly made, for state law purposes, to a "TPDES permit," as applicable; and where 40 CFR §122.28(b)(3)(iii) refers to 40 CFR §122.21, the reference is more properly made, for state law purposes, to applicable sections of this chapter, Chapter 281 of this title (relating to Application Processing), and Chapter 305 of this title (relating to Consolidated Permits).</content><note type="source"><p>Source Note: The provisions of this §205.7 adopted to be effective September 13, 2000, 25 TexReg 8862.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c210"><num value="210">CHAPTER 210</num><heading>USE OF RECLAIMED WATER</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c210/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c210/scA/s210.1"><num value="210.1">§210.1</num><heading>Applicability</heading><content>(a) This chapter applies to the reclaimed water producer, provider, and user. (b) This chapter does not apply to treatment or disposal of wastewater permitted by the commission in accordance with the requirements of Chapter 305 of this title (relating to Consolidated Permits), or to the use of such treated wastewater identified in a water quality permit authorizing disposal by irrigation. This chapter does not apply to those systems authorized under Chapter 285 of this title (relating to On-Site Wastewater Treatment) which utilizes surface irrigation as an approved disposal method.(c) If the entity which is the producer of the reclaimed water is the same as the user and:(1) has a domestic wastewater permit for a domestic wastewater treatment facility that is located at the terminus of the collection system to which the reclaimed water production facility is or will be connected, then the use of reclaimed water is permissible only if the use occurs after the wastewater has been treated in accordance with the producer's wastewater permit and the permit provides for an alternative means of disposal during times when there is no demand for the use of the reclaimed water; or(2) obtains consent from an associated domestic wastewater treatment facility and collection system to which the reclaimed water production facility is or will be connected to be used as an alternative means of disposal during times when there is no demand for the use of the reclaimed water, then the use of reclaimed water is permissible only if the use occurs after the wastewater has been treated in accordance with the producer's reuse authorization issued under this Chapter.</content><note type="source"><p>Source Note: The provisions of this §210.1 adopted to be effective February 12, 1997, 22 TexReg 1103; amended to be effective March 5, 2025, 50 TexReg 1684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scA/s210.2"><num value="210.2">§210.2</num><heading>Purpose and Scope</heading><content>(a) The purpose of this chapter is to establish general requirements, quality criteria, design, and operational requirements for the beneficial use of reclaimed water which may be substituted for potable water and/or raw water. As defined and specified in this chapter, the requirements must be met by producers, providers, and/or users of reclaimed water. Specific use categories are defined with corresponding reclaimed water quality requirements. These criteria are intended to allow the safe utilization of reclaimed water for conservation of surface and groundwater; to ensure the protection of public health; to protect ground and surface waters; and to help ensure an adequate supply of water resources for present and future needs.(b) The commission has defined other types of reclaimed water activity in separate regulations, including Chapter 321, Subchapter P of this title (relating to Reclaimed Water Production Facilities), Chapter 309 of this title (relating to Land Application of Sewage Effluent), and Chapter 297 of this title (relating to Definitions and Applicability). These regulations do not modify those definitions. The term reclaimed water is limited in scope for the purpose of this rule as defined in §210.3 of this title (relating to Definitions).(c) Approval by the executive director of a reclaimed water use project under this chapter does not affect any existing water rights. If applicable, a reclaimed water use authorization in no way affects the need of a producer, provider and/or user to obtain a separate water right authorization from the commission.(d) Reclaimed water projects approved under this chapter do not require a new or amended waste discharge permit from the commission except as provided in §210.5 of this title (relating to Permits Required). Persons who desire to develop projects not specifically authorized by this chapter may seek authorization pursuant to provisions of Subchapter D or apply for a new or amended waste discharge permit under Chapter 305 of this title (relating to Consolidated Permits).(e) A producer of reclaimed water must obtain an approved Texas Pollutant Discharge Elimination System (TPDES) permit, Texas Land Application Permit (TLAP), or authorization under 30 TAC Chapter 321, Subchapter P, of this title prior to commencement of construction and operation of the treatment facility.</content><note type="source"><p>Source Note: The provisions of this §210.2 adopted to be effective February 12, 1997, 22 TexReg 1103; amended to be effective March 5, 2025, 50 TexReg 1684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scA/s210.3"><num value="210.3">§210.3</num><heading>Definitions</heading><content>The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise. (1) Associated Domestic Wastewater Treatment Facility--a commission-authorized wastewater treatment facility located at the terminus of the collection system that consents to the acceptance of treated effluent, untreated effluent, and sludge from a reclaimed water production facility for final treatment and disposal.(2) Beneficial use--An economic use of wastewater in accordance with the purposes, applicable requirements, and quality criteria of this chapter, and which takes the place of potable and/or raw water that could otherwise be needed from another source. The use of reclaimed water in a quantity either less than or the economically optimal amount may be considered a beneficial use as long as it does not constitute a nuisance.(3) BOD5 --Five-day biochemical oxygen demand.(4) CBOD5 --Five-day carbonaceous biochemical oxygen demand.(5) CFU--Colony forming units.(6) Domestic wastewater--Waste and wastewater from humans or household operations that are discharged to a wastewater collection system or otherwise enters a treatment works. Also, this includes waterborne human waste and waste from domestic activities such as washing, bathing, and food preparation, including greywater and blackwater, that is disposed in an on-site wastewater system as defined in Chapter 285 of this title (relating to On-Site Wastewater Treatment).(7) DRASTIC--A classification system for comparing land units on the basis of their vulnerability to ground-water pollution, a detailed description of which is found in Appendix 1 of this chapter.Attached Graphic(8) Edwards Aquifer--That portion of an arcuate belt of porous, water bearing, predominantly carbonate rocks known as the Edwards and Associated Limestones in the Balcones Fault Zone trending from west to east to northeast in Kinney, Uvalde, Medina, Bexar, Comal, Hays, Travis, and Williamson counties; and composed of the Salmon Peak Limestone, McKnight Formation, West Nueces Formation, Devil's River Limestone, Person Formation, Kainer Formation, Edwards Formation, and Georgetown Formation. The permeable aquifer units generally overlie the less-permeable Glen Rose Formation to the south, overlie the less-permeable Comanche Peak and Walnut formations north of the Colorado River, and underlie the less-permeable Del Rio Clay regionally. (See Chapter 213 of this title (relating to Edwards Aquifer).)(9) Edwards Aquifer Recharge zone--Generally, that area where the stratigraphic units constituting the Edwards Aquifer crop out, and including the outcrops of other geologic formations in proximity to the Edwards Aquifer, where caves, sinkholes, faults, fractures, or other permeable features would create a potential for recharge of surface waters into the Edwards Aquifer. The recharge zone is identified as that area designated as such on official maps located in the offices of the commission and the Edwards Underground Water District. (See Chapter 213 of this title (relating to Edwards Aquifer).)(10) Food crop--Any crops intended for direct human consumption.(11) Initial holding pond--An impoundment which first receives reclaimed water from a producer at the quality levels established by this chapter, not including subsequent holding ponds.(12) Geometric mean--The nth root of the product of all measurements made in a particular period of time, for example in a month's time, where n equals the number of measurements made. In the alternative, the geometric mean can also be computed as the antilogarithm of the sum of the logarithm of each measurement made. Where any measurement using either computation method equals zero, it must be substituted with the value of one.(13) l--Liter.(14) Landscape impoundment--Body of reclaimed water which is used for aesthetic enjoyment or which otherwise serves a function not intended to include contact recreation.(15) Leak detection system--A system or device designed, constructed, maintained, and operated with a pond that is capable of immediately detecting a release of leachate or reclaimed water that migrates through a liner. The system may typically include a leachate collection system along with either leak detection sensors or view ports.(16) Municipal wastewater--Waste or wastewater discharged into a publicly owned or a privately owned sewerage treatment works primarily consisting of domestic waste.(17) mg/l--Milligram per liter.(18) NTU--Nephelometric turbidity units.(19) Nuisance--Any distribution, storage, or use of reclaimed water, in such concentration and of such duration that is or may tend to be injurious to or which adversely affects human health or welfare, animal life, vegetation, or property, or which interferes with the normal use and enjoyment of animal life, vegetation, or property. (20) On-channel pond--An impoundment wholly or partially within a definite channel of a stream in which water flows within a defined bed and banks, originating from a definite source or sources. The water may flow continuously or intermittently, and if intermittently, with some degree of regularity, dependent on the characteristics of the source or sources.(21) Permit or permitted--A written document issued by the commission or executive director in accordance with Texas Water Code (TWC), Section 5.581, Chapter 305 of this title (relating to Consolidated Permits), and Chapter 321, Subchapter P of this title (related to Reclaimed Water Production Facilities) which, by its conditions, may authorize the permittee to construct, install, modify, or operate, in accordance with stated limitations, a specified wastewater treatment or reclaimed water production facility.(22) Pond system--Wastewater facility in which primary treatment followed by stabilization ponds are used for secondary treatment and in which the ponds have been designed and constructed in accordance with applicable design criteria. (See Chapter 217 of this title (relating to the Design Criteria for Domestic Wastewater Systems).)(23) Producer--A person or entity that produces reclaimed water by treating domestic wastewater or municipal wastewater, in accordance with a permit or other authorization of the commission, to meet the quality criteria established in this chapter.(24) Provider--A person or entity that distributes reclaimed water to a user(s) of reclaimed water. For purposes of this chapter, the reclaimed water provider may also be a reclaimed water producer.(25) Reclaimed water--Domestic or municipal wastewater which has been treated to a quality suitable for a beneficial use, pursuant to the provisions of this chapter and other applicable rules and permits.(26) Restricted landscaped area--Land which has vegetative cover to which public access is controlled in some manner. Access may be controlled by either legal means (e.g. state or city ordinance) or controlled by some type of physical barrier (e.g., fence or wall). Example of such areas are: golf courses; cemeteries; roadway rights-of-way; median dividers.(27) Restricted recreational impoundment--Body of reclaimed water in which recreation is limited to fishing, boating and other non-contact recreational activities.(28) Single grab sample--An individual sample collected in less than 15 minutes.(29) Spray irrigation--Application of finely divided water droplets using artificial means.(30) Subsequent holding pond--A pond or impoundment which receives reclaimed water from an initial holding pond where the quality of the water changes after management in the initial holding pond, due to factors which may include:(A) the addition of water occurs such as contributions from surface water or ground water sources, but not including contributions of reclaimed water, domestic wastewater, or municipal wastewater;(B) some type of utilization of the reclaimed water for a beneficial use occurs; or(C) commingling of reclaimed water with surface water runoff where it occurs between storage in an initial holding pond and the subsequent holding pond.(31) Surface irrigation--Application of water by means other than spraying so that contact between the edible portion of any food crop and the irrigation water is prevented.(32) Type I reclaimed water use--Use of reclaimed water where contact between humans and the reclaimed water is likely.(33) Type II reclaimed water use--Use of reclaimed water where contact between humans and the reclaimed water is unlikely.(34) Unrestricted landscaped area--Land which has had its plant cover modified and access to which is uncontrolled. Examples of such areas are: parks; school yards; greenbelts; residences.(35) User--Person or entity utilizing reclaimed water for a beneficial use, in accordance with the requirements of this chapter. A reclaimed water user may also be a producer or a provider.</content><note type="source"><p>Source Note: The provisions of this §210.3 adopted to be effective February 12, 1997, 22 TexReg 1103; amended to be effective March 5, 2025, 50 TexReg 1684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scA/s210.4"><num value="210.4">§210.4</num><heading>Notification</heading><content>(a) Before providing reclaimed water to another for a use allowable under this chapter, the reclaimed water provider shall notify the executive director and obtain written approval to provide the reclaimed water. The notification shall include:(1) a description of the intended use of the reclaimed water, including quantity, quality, origin, and location and purpose of intended use;(2) a clear indication of the means for compliance with this chapter, including documentation that a user will be apprised of their responsibilities under this chapter as a part of the water supply contract or other binding agreement;(3) evidence in a water supply contract or other binding agreement of the provider's authority to terminate reclaimed water use that is noncompliant with this chapter; and(4) an operation and maintenance plan that is required under ordinance or is to be a part of the water supply contract or other binding agreement, where applicable, and which shall contain, as a minimum, the following:(A) a labeling and separation plan for the prevention of cross connections between reclaimed water distribution lines and potable water lines;(B) the measures that will prevent unauthorized access to reclaimed water facilities (e.g., secured valves);(C) procedures for monitoring reclaimed water transfers and use;(D) steps the user must utilize to minimize the risk of inadvertent human exposure;(E) schedules for routine maintenance;(F) a plan for carrying out provider employee training and safety relating to reclaimed water treatment, distribution, and management; and(G) contingency plan for remedy of system failures, unauthorized discharges, or upsets.(b) If the provider is not the producer, a description of the origin of the reclaimed water, its quality based upon the parameters contained in the underlying permit(s) described in §210.2(e), as applicable, and a signed agreement from the producer authorizing the transfer of the reclaimed water to the provider. If applicable, a reclaimed water provider or user may need to obtain a separate water right authorization from the commission.(c) A producer who chooses to use reclaimed water for a beneficial use only within the boundaries of a wastewater treatment facility permitted by the commission, may do so without notification otherwise required by this section. In such instances, the producer is still required to comply with all applicable requirements of this chapter pertaining to the reclaimed water use.(d) If effluent is to be used for irrigation within the Edwards Aquifer recharge zone, plans and specifications for the disposal system must be submitted to the executive director for review and approval prior to construction of the facility in accordance with Chapter 213 of this title (relating to Edwards Aquifer).(e) Major changes from a prior notification for use of reclaimed water must be approved by the executive director. A major change includes:(1) a change in the boundary of the approved service area not including the conversion of individual lots within a subdivision to reclaimed water use;(2) the addition of a new producer;(3) major changes in the intended use, such as conversion from irrigation of a golf course to residential irrigation; or(4) changes from either Type I or Type II uses to the other.</content><note type="source"><p>Source Note: The provisions of this §210.4 adopted to be effective February 12, 1997, 22 TexReg 1103; amended to be effective March 5, 2025, 50 TexReg 1684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scA/s210.5"><num value="210.5">§210.5</num><heading>Authorization for the Use of Reclaimed Water</heading><content>(a) Prior to discharging any reclaimed water to the waters in the state, the provider or user shall obtain a permit from the commission in accordance with the requirements of Chapter 305 of this title (relating to Consolidated Permits) except as provided for by §210.22(e) of this title (relating to General Requirements). The application for the required permit authorization to discharge reclaimed water may be submitted concurrently or after the permit application to treat and dispose of wastewater in accordance with the requirements of 30 TAC Chapter 305.(b) The executive director may require a reclaimed water user to apply for and obtain a permit to utilize reclaimed water if the reclaimed water use poses potential or actual adverse impacts upon human health, soil and ground water resources, or aquatic life.(c) For purposes of this chapter, no permit issued pursuant to Chapter 305 of this title (relating to Consolidated Permits) will be required for additional treatment required to meet the quality standards of §210.33 of this title (relating to Quality Standards for Using Reclaimed Water), unless such additional treatment results in a discharge of wastewater into waters in the state.(d) A reclaimed water provider or user who accepts effluent meeting the Type II quality criteria and that must also meet the Type I quality criteria for a proposed use must provide additional treatment for the proposed new use. The additional manner of treatment must be authorized by the executive director. The provider or user must notify and be granted an authorization from the executive director prior to engaging in such activity. Examples of such additional treatment may include processes for disinfection or filtration of the reclaimed water. Such authorization may be granted by the executive director after review of the proposed plans and specifications submitted to the executive director for the additional treatment. This request for authorization may be submitted to the executive director along with the notification required by §210.4 of this title (relating to Notification).(e) If a provider or user elects to treat reclaimed water supplied by the provider or producer, respectively, to a quality better than the minimum standards of this chapter for the same use, such treatment does not require a permit or other additional authorization by the executive director.(f) Any sewage sludge generated as a result of reclaimed water treatment undertaken pursuant to this section shall be managed in accordance with the requirements of Chapter 312 of this title (relating to Sludge Use, Disposal and Transportation).</content><note type="source"><p>Source Note: The provisions of this §210.5 adopted to be effective February 12, 1997, 22 TexReg 1103; amended to be effective March 2, 2023, 48 TexReg 1132.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scA/s210.6"><num value="210.6">§210.6</num><heading>Responsibilities</heading><content>The producer of reclaimed water will not be liable for misapplication of reclaimed water by users, except as provided in this section. Both the reclaimed water provider and user have, but are not limited to, the following responsibilities:(1) The reclaimed water producer shall:(A) transfer reclaimed water of at least the minimum quality required by this chapter at the point of delivery to the user for the specified use;(B) sample and analyze the reclaimed water and report such analyses in accordance with §210.34 and §210.36(b) of this title (relating to Sampling and Analysis and Record keeping and Reporting, respectively); and(C) notify the executive director in writing within five days of obtaining knowledge of reclaimed water use not authorized by the executive director's reclaimed water use approval.(2) The reclaimed water provider shall:(A) assure construction of reclaimed water distribution lines or systems in accordance with this chapter and in accordance with §210.25 of this title (relating to Special Design Criteria for Reclaimed Water Systems);(B) transfer reclaimed water of at least the minimum quality required by this chapter at the point of delivery to the user for the specified use;(C) notify the executive director in writing within five (5) days of obtaining knowledge of reclaimed water use not authorized by the executive director's reclaimed water use approval; and(D) not be found in violation of this chapter for the misuse of the reclaimed water by the user if transfer of such water is shut off promptly upon knowledge of misuse regardless of contract provisions.(3) The reclaimed water user shall:(A) use the reclaimed water in accordance with this chapter; and(B) maintain and provide records as required by §210.36(a) of this title (relating to Recordkeeping and Reporting).</content><note type="source"><p>Source Note: The provisions of this §210.6 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scA/s210.7"><num value="210.7">§210.7</num><heading>Transfer and Conveyance of Reclaimed Water</heading><content>Reclaimed water transferred from a provider to a user shall be done on a demand only basis in order that the water is not provided during times it cannot be beneficially used in accordance with this chapter. The reclaimed water user may refuse delivery of such water at any time. However, this section is not intended to change any obligation the user may have by contract or ordinance. All reclaimed water transferred to a user must be of at least the treatment quality for the use specified in §210.32 of this title (relating to Specific Uses of Reclaimed Water).</content><note type="source"><p>Source Note: The provisions of this §210.7 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scA/s210.8"><num value="210.8">§210.8</num><heading>Restrictions</heading><content>This chapter does not convey or alter any property right and does not grant any exclusive privilege.</content><note type="source"><p>Source Note: The provisions of this §210.8 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scA/s210.9"><num value="210.9">§210.9</num><heading>Enforcement</heading><content>If a person or entity fails to comply with the terms of this chapter, the executive director may require the entity to apply for and obtain a permit or permit amendment. The commission may also issue an enforcement order requiring remedial measures and the assessment of administrative penalties pursuant to §26.019 and §26.136 of the Texas Water Code. The commission may also seek civil penalties and injunctive relief in a court of competent jurisdiction as provided by §26.123 of the Texas Water Code.</content><note type="source"><p>Source Note: The provisions of this §210.9 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c210/scB"><num value="B">SUBCHAPTER B</num><heading>GENERAL REQUIREMENTS FOR THE PRODUCTION, CONVEYANCE, AND USE OF RECLAIMED WATER</heading><section identifier="/us/state/tx/tac/t30/p1/c210/scB/s210.21"><num value="210.21">§210.21</num><heading>Applicability</heading><content>This subchapter establishes general requirements applicable to producers, providers, and users of reclaimed water. This subchapter also establishes requirements and specifications for transfer, storage, and irrigation using reclaimed water and design criteria of reclaimed water systems. Additionally, this subchapter establishes requirements and specifications necessary to minimize discharges of waste into or adjacent to waters in the state.</content><note type="source"><p>Source Note: The provisions of this §210.21 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scB/s210.22"><num value="210.22">§210.22</num><heading>General Requirements</heading><content>(a) Reuse of untreated wastewater is prohibited.(b) Food crops that may be consumed raw by humans shall not be spray irrigated. Food crops including orchard crops that will be substantially processed prior to human consumption may be spray irrigated. Other types of irrigation that avoid contact of reclaimed water with edible portions of food crops are acceptable.(c) There shall be no nuisance conditions resulting from the distribution, the use, and/or storage of reclaimed water.(d) Reclaimed water shall not be utilized in a way that degrades ground water quality to a degree adversely affecting its actual or potential uses.(e) Reclaimed water managed in ponds for storage must be prevented from discharge into waters in the state, except for discharges directly resulting from rainfall events or in accordance with a permit issued by the commission. All other discharges are unauthorized. If any unauthorized overflow of a holding pond occurs causing discharge into or adjacent to waters in the state, the user or provider, as appropriate, shall report the noncompliance. A written submission of such information shall also be provided to the TNRCC regional office and to the Austin Office, Water Enforcement Section (MC-149), within five working days of becoming aware of the overflow. The written submission shall contain a description of the noncompliance and its cause; the potential danger to human health or safety, or the environment; the period of noncompliance, including exact dates and times; if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent recurrence of the noncompliance, and to mitigate its adverse effects.</content><note type="source"><p>Source Note: The provisions of this §210.22 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scB/s210.23"><num value="210.23">§210.23</num><heading>Storage Requirements for Reclaimed Water</heading><content>(a) Except for authorized on-channel ponds, storage facilities for retaining reclaimed water prior to use shall not be located within the floodway. (b) Except as provided by subsection (e) of this section, all initial holding ponds must be lined in accordance with either subsection (c) or (d) of this section, as appropriate. (c) All initial and subsequent holding ponds containing Type I and Type II effluent, located within the recharge zone of the Edwards Aquifer, as defined in Chapter 213 of this title (relating to Edwards Aquifer), and all initial holding ponds containing Type II effluent, located in a vulnerable area as defined by a rating of 110 or greater on the statewide "Ground-Water Pollution Potential--General, Municipal, and Industrial Sources" (DRASTIC) map (as shown in Figure 1 of this chapter), shall conform to the following requirements:Attached Graphic(1) The ponds, whether constructed of earthen or other impervious material, shall be designed and constructed so as to prevent groundwater contamination; (2) Soils used for pond lining shall be free from foreign material such as paper, brush, trees, and large rocks; (3) All soil liners must be of compacted material, at least 24 inches thick, compacted in lifts no greater than six inches thick and compacted to 95% of Standard Proctor Density. In-situ clay soils meeting the soils liner requirements shall be excavated and re-compacted a minimum of six inches below planned grade to assure a uniformly compacted finished surface. (4) Soil liners must meet the following particle size gradation and Atterberg limits: (A) 30% or more passing a number 200 mesh sieve; and (B) a liquid limit of 30% or greater; and a plasticity index of 15 or greater and have a permeability less than or equal to 1 X 10-7 cm/sec; (5) Synthetic membrane linings shall have a minimum thickness of 40 mils with a leak detection system. In situ liners at least 24 inches thick meeting a permeability less than or equal to 1 X 10-7 cm/sec are acceptable alternatives; (6) Certification shall be furnished by a Texas Registered Professional Engineer that the pond lining meets the appropriate criteria prior to utilization of the facilities; and (7) Soil embankment walls shall have a top width of at least five feet. The interior and exterior slopes of soil embankment walls shall be no steeper than one foot vertical to three feet horizontal unless alternate methods of slope stabilization are utilized. All soil embankment walls shall be protected by a vegetative cover or other stabilizing material to prevent erosion. Erosion stops and water seals shall be installed on all piping penetrating the embankments. (d) All initial holding ponds designed to contain Type I effluent, located outside of the recharge zone of the Edwards Aquifer, and Type II effluent, located in areas in the state not identified in subsection (c) of this section shall conform to the following requirements: (1) The ponds, whether constructed of earthen or other impervious materials, shall be designed and constructed so as to prevent groundwater contamination; (2) Soils used for pond lining shall be free from foreign material such as paper, brush, trees, and large rocks; (3) All soil liners must be of compacted material having a permeability less than or equal to 1 x 10-4 cm/sec, at least 24 inches thick, compacted in lifts no greater than 6 inches each;(4) Synthetic membrane linings shall have a minimum thickness of 40 mils. In situ liners at least 24 inches thick meeting a permeability less than or equal to 1 X 10-4 cm/sec are acceptable alternatives; (5) Certification shall be furnished by a Texas Registered Professional Engineer that the pond lining meets the appropriate criteria prior to utilization of the facilities; and (6) Soil embankment walls shall have a top width of at least five feet. The interior and exterior slopes of soil embankment walls shall be no steeper than one foot vertical to three feet horizontal unless alternate methods of slope stabilization are utilized. All soil embankment walls shall be protected by a vegetative cover or other stabilizing material to prevent erosion. Erosion stops and water seals shall be installed on all piping penetrating the embankments. (7) An alternative method of pond lining which provides equivalent or better water quality protection than provided under this section may be utilized with the prior approval of the executive director. (8) A specific exemption may be obtained from the executive director if, after the review of data submitted by the reclaimed water provider or user, as appropriate, the executive director determines containment of the reclaimed water is not necessary, considering: (A) soil and geologic data, and ground water data, including its quality, uses, quantity and yield; and (B) adequate demonstration that impairment of ground water for its actual or potential use will be prevented. (e) Reclaimed water may be stored in leak-proof, fabricated tanks. (f) Subsequent holding ponds utilized for the receipt and storage of reclaimed water of a quality that could cause or causes a violation of a surface water quality standard or impairment of ground water for its actual or intended use will also be subject to the storage requirements of this section.</content><note type="source"><p>Source Note: The provisions of this §210.23 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scB/s210.24"><num value="210.24">§210.24</num><heading>Irrigation Using Reclaimed Water</heading><content>(a) The reclaimed water user shall provide reasonable control of the application rates for reclaimed water applied to irrigation areas. These controls shall encourage the efficient use of reclaimed water and avoid excessive application of reclaimed water that results in surface runoff or excessive percolation below the root zone.(b) The reclaimed water provider or user, as applicable, shall determine and document typical irrigation demands for the proposed use based on type of vegetation and land area to be irrigated. As one alternative, a typical method for determining irrigation needs is shown in Table 1 of this section. However, other alternative methods may be used.(c) The reclaimed water provider shall be responsible for conducting periodic audits of appropriate controls implemented by reclaimed water users. Other typical irrigation operational considerations that must be addressed include the following:(1) Irrigation of Food Crops.(A) Irrigation of edible crops that will be peeled, skinned, cooked, or thermally processed before consumption is allowed. Direct contact of the reclaimed water with such crops is allowed.(B) Irrigation of citrus fruit is allowed. Direct contact of the reclaimed water with citrus is allowed.(C) Irrigation of edible crops that will not be peeled, skinned, cooked, or thermally processed before consumption is allowed if an indirect application method is used which will preclude the direct contact with the reclaimed water. For instance, a ridge and furrow, drip irrigation, or a subsurface distribution system may be used to irrigate such above ground crops. However, these methods would not be suitable for crops such as carrots or radishes.(D) Irrigation of edible crops that will not be peeled, skinned, cooked, or thermally processed before consumption that allows for direct contact of the reclaimed water on the crop is prohibited.(2) Irrigation of pastures used by animals milked for human consumption shall be conducted in a manner to avoid contact of reclaimed water with such animals.(3) Irrigation of landscaped areas.(A) Application of reclaimed water on public access facilities shall be controlled by agreement with the reclaimed water provider or by local ordinance.(B) Reclaimed water may not be used to fill swimming pools, hot tubs, wading pools, or other structures designed for contact recreation.(d) General irrigation requirements.(1) A provider or user designing or operating an irrigation system using reclaimed water is responsible for ensuring that reclaimed water overflow, crop stress, and undesirable soil contamination by a salt does not occur. To prevent such occurrences, the provider or user is required to consider, evaluate, and respond appropriately to the following factors as the need arises:(A) Precipitation inputs to the water balance should utilize the average monthly precipitation based on past rainfall records.(B) The consumptive use requirements (evapotranspiration losses) of the crop system should be developed on a monthly basis. The method of determining the consumptive use requirement shall be documented by the provider or user as a part of the water balance study and the records of the study maintained for possible commission review.(C) A leaching requirement, calculated as shown in Table 1 of this section, shall be included in the water balance study when the total dissolved solids concentration of the reclaimed water presents the potential for developing excessive soil salinity buildup due to the long term operation of the irrigation system.(2) The irrigation site must be maintained with a vegetative cover or be under cultivation during times when reclaimed water is being applied.(3) The irrigation practices shall be designed so as to prevent incidental ponding or standing water except where local farming conditions and the accepted irrigation delivery systems and cropping patterns are such that, as an unavoidable consequence of such conditions, systems, and patterns, there will be standing water.(4) Irrigation application rates and application times shall be developed so as to minimize "wet grass" conditions in unrestricted landscaped areas during the periods the area could be in use.(5) Irrigation systems shall be designed so that the irrigation spray does not reach any privately-owned premises outside the designated irrigation area or reach public drinking fountains.(6) There shall be no application of effluent when the ground is water saturated or frozen.(7) Distribution systems must be designed to prevent operation by unauthorized personnel.(8) Irrigation operations shall be managed in a manner to minimize the inadvertent contact of reclaimed water with humans.(9) Operational or tailwater controls shall be provided to preclude discharge of reclaimed water from irrigation sites.</content><note type="source"><p>Source Note: The provisions of this §210.24 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scB/s210.25"><num value="210.25">§210.25</num><heading>Special Design Criteria for Reclaimed Water Systems</heading><content>(a) All hose bibs and faucets shall be painted purple and designed to prevent connection to a standard water hose. Hose bibs shall be located in locked, below grade vaults which shall be clearly labeled as being of non-potable quality. As an alternative to the use of locked, below grade vaults with standard hose bibs services, hose bibs may be placed in a non-lockable service box which can only be operated by a special tool so long as the hose bib is clearly labeled as non-potable water, in accordance with subsection (b) of this section.(b) One of the following requirements must be met by the user or provider, for any area where reclaimed water is stored or where there exist hose bibs or faucets:(1) Signs having a minimum size of eight inches by eight inches, as shown in Figure 1, shall be posted at all storage areas and on all hose bibs and faucets reading, in both English and Spanish, "Reclaimed Water, Do Not Drink" or similar warning.(c) Reclaimed water piping shall be separated from potable water piping by a horizontal distance of at least nine feet. Where the nine foot separation distance cannot be achieved, the reclaimed water piping must meet the line separation requirements of Chapter 290 of this title (relating to Water Hygiene).(d) Where a reclaimed water line parallels a sewer line, the reclaimed water line shall be constructed in accordance with subsection (e) or (f) of this section. The horizontal separation distance shall be three feet (outside to outside) with the reclaimed water line at the level of or above the sewer line. Reclaimed water lines which parallel sewer lines may be placed in the same benched trench. Where a reclaimed water line crosses a sewer line, the requirements of §290.44(e)(5)(B) of this title (relating to Location of Water Lines) shall be followed, with "reclaimed water line" substituted in §290.44(e) of this title (relating to Location of Water Lines) for "water line."(e) Reclaimed water lines which transport reclaimed water under pressure shall be sized according to acceptable engineering practices for the needs of the reclaimed water users. The designer shall consider methods to prevent or maintain lines to mitigate the effect of the deposition of solids in such lines. Pipe specified for reclaimed water force mains shall be of a type having an expected life at least as long as that of the lift station and shall be suitable for the reclaimed water being pumped and operating pressure to which it will be subjected. All pipe shall be identified in the technical specifications with appropriate American Society for Testing and Materials, American National Standard Institute, or American Water Works Association (AWWA) standard numbers for both quality control (dimensions, tolerance, and installation such as bedding or backfill). All pipes and fittings shall have a minimum working pressure rating of 150 pounds per square inch. Final plans and specifications shall describe required pressure testing for all installed reclaimed water force mains. Minimum test pressure shall be 1.5 times the maximum design pressure. Allowable leakage rates shall be determined as described in §317.2(d)(4) of this title (relating to Pressure Sewer Systems).(f) Gravity flow reclaimed water lines shall meet the requirements of §317.2(a) of this title (relating to General Requirements) and §317.2(c) of this title (relating to High Velocity Protection). The designer shall consider methods to prevent high velocity scour or maintain line fluid velocity to mitigate the effects of the deposition of solids in the gravity conveyance.(g) All exposed piping and piping within a building shall be either purple pipe or painted purple. All buried piping installed after the effective date of these rules shall be one of the following: manufactured in purple, painted purple, taped with purple metallic tape, or bagged in purple. All exposed piping should be stenciled in white with a warning reading "NON-POTABLE WATER." All exposed or buried reclaimed water piping constructed at a wastewater treatment facility is exempt from the color coding requirements of this section.(h) When applicable, in accordance with §317.1(a)(3)-(4) of this title, (relating to General Provisions), the design of distribution systems which will convey reclaimed water to a user shall be submitted to the executive director and must receive an approval. The design of the distribution systems must meet the requirements of Chapter 317 of this title (relating to Design Criteria for Sewerage Systems). Where a municipality is the plan review authority for certain sewer systems which transport primarily domestic waste, in accordance with §317.1(a)(5) of this title, in lieu of the commission, design submittal will not be subject to submittal to the commission and instead must be approved by the municipality. Materials shall be submitted for approval by the executive director in accordance with the Texas Engineering Practice Act (Article 3271a, Vernon's Annotated Texas Statutes).(i) All ground level and elevated storage tanks shall be designed, installed, and constructed in accordance with current AWWA standards with reference to materials to be used and construction practices to be followed, except for health-based standards strictly related to potable water storage and contact practices, where appropriately less restrictive standards may be applied.</content><note type="source"><p>Source Note: The provisions of this §210.25 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c210/scC"><num value="C">SUBCHAPTER C</num><heading>QUALITY CRITERIA AND SPECIFIC USES FOR RECLAIMED WATER</heading><section identifier="/us/state/tx/tac/t30/p1/c210/scC/s210.31"><num value="210.31">§210.31</num><heading>Applicability</heading><content>This subchapter applies to the reclaimed water producer, the reclaimed water provider and the reclaimed water user. This subchapter sets the specific uses, the quality standards, as well as the monitoring, record keeping, and reporting standards for reclaimed water.</content><note type="source"><p>Source Note: The provisions of this §210.31 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scC/s210.32"><num value="210.32">§210.32</num><heading>Specific Uses of Reclaimed Water</heading><content>Numerical parameter limits pertaining to specific reclaimed water use categories are contained in §210.33 of this title (relating to Quality Standards for Using Reclaimed Water). These limits apply to reclaimed water before discharge to initial holding ponds or a reclaimed water distribution system. It shall be the responsibility of the reclaimed water producer to establish that the reclaimed water meets the quality limits at the sample point for the intended use in accordance with the monitoring requirements identified in §210.34 of this title (relating to Sampling and Analysis).(1) Type I Reclaimed Water Use. This type of use includes irrigation or other uses in areas where the public may be present during the time when irrigation takes place or other uses where the public may come in contact with the reclaimed water. The following types of uses would be considered Type I uses:(A) Residential irrigation, including landscape irrigation at individual homes.(B) Urban uses, including irrigation of public parks, golf courses with unrestricted public access, school yards, or athletic fields.(C) Use of reclaimed water for fire protection, either in internal sprinkler systems or external fire hydrants.(D) Irrigation of food crops where the applied reclaimed water may have direct contact with the edible part of the crop, unless the food crop undergoes a pasteurization process.(E) Irrigation of pastures for milking animals.(F) Maintenance of impoundments or natural water bodies where recreational activities, such as wading or fishing, are anticipated even though the water body was not specifically designed for such a use.(G) Toilet or urinal flush water.(H) Other similar activities where the potential for unintentional human exposure may occur.(2) Type II Reclaimed Water Use. This type of use includes irrigation or other uses in areas where the public is not present during the time when irrigation activities occur or other uses where the public would not come in contact with the reclaimed water. The following are examples of uses that would be considered Type II uses.(A) Irrigation of sod farms, silviculture, limited access highway rights of way, and other areas where human access is restricted or unlikely to occur. The restriction of access to areas under irrigation with reclaimed water could include the following:(i) The irrigation site is considered to be remote.(ii) The irrigation site is bordered by walls or fences and access to the site is controlled by the owner/operator of the irrigation site.(iii) The irrigation site is not used by the public during the times when irrigation operations are in progress. Such sites may include golf courses, cemeteries, and landscaped areas surrounding commercial or industrial complexes. The "syringing" or "wetting" of greens and tees on golf courses shall be allowable under Type II so long as the "syringing" is done with hand-held hoses as opposed to automatic irrigation equipment. The public need not be excluded from areas where irrigation is not taking place. For example, irrigation of golf course fairways at night would not prohibit the use of club house or other facilities located a sufficient distance from the irrigation.(iv) The irrigation site is restricted from public access by local ordinance or law with specific standards to achieve such a purpose.(B) Irrigation of food crops where the reclaimed water is not likely to have direct contact with the edible part of the crop, or where the food crop undergoes pasteurization prior to distribution for consumption.(C) Irrigation of animal feed crops other than pasture for milking animals.(D) Maintenance of impoundments or natural water bodies where direct human contact is not likely.(E) Soil compaction or dust control in construction areas where application procedures minimize aerosol drift to public areas.(F) Cooling tower makeup water. Use for cooling towers which produce significant aerosols adjacent to public access areas may have special requirements.(G) Irrigation or other non-potable uses of reclaimed water at a wastewater treatment facility.(3) Any Type I reclaimed water may also be utilized for any of the Type II uses identified in subsection (b) of this section.</content><note type="source"><p>Source Note: The provisions of this §210.32 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scC/s210.33"><num value="210.33">§210.33</num><heading>Quality Standards for Using Reclaimed Water</heading><content>The following conditions apply to the types of uses of reclaimed water. At a minimum, the reclaimed water producer shall only transfer reclaimed water of the following quality as described for each type of specific use: (1) for Type I reclaimed water uses, reclaimed water on a 30-day average shall have a quality of: Attached Graphic(2) for Type II reclaimed water use, reclaimed water on a 30-day average shall have a quality of: (A) for a system other than pond system: Attached Graphic(B) for a pond system: Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §210.33 adopted to be effective February 12, 1997, 22 TexReg 1103; amended to be effective November 26, 2009, 34 TexReg 8325.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scC/s210.34"><num value="210.34">§210.34</num><heading>Sampling and Analysis</heading><content>The reclaimed water producer shall sample the reclaimed water prior to distribution to a user to assure that the water quality is in accord with the intended contracted use. Analytical methods shall be in accord with those specified in Chapter 319 of this title (relating to Monitoring and Reporting). The minimum sampling and analysis frequency for reclaimed water for the applicable parameters identified in §210.33 of this title (relating to Quality Standards for the Use of Reclaimed Water) is as follows:(1) Type I Reclaimed Water Uses twice per week.(2) Type II Reclaimed Water Uses once per week.</content><note type="source"><p>Source Note: The provisions of this §210.34 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scC/s210.35"><num value="210.35">§210.35</num><heading>Guidelines for Certain Distribution Systems</heading><content>The commission recommends that a provider or user maintain a plan to carry out periodic fecal coliform sampling within certain reclaimed water distribution piping systems. Such a plan does not need the approval or review of the commission. This periodic sampling should occur in instances where residential irrigation, including landscape irrigation at individual homes occurs, or where specific urban uses such as irrigation of public parks, school yards, or athletic fields occurs. The plan should specify activities by the provider or user to respond to human health threats if undesirable fecal coliform test results or trends are detected.</content><note type="source"><p>Source Note: The provisions of this §210.35 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scC/s210.36"><num value="210.36">§210.36</num><heading>Record Keeping and Reporting</heading><content>The reclaimed water provider and user shall maintain records on site for a period of five years.(1) Records to be maintained by the provider include:(A) copies of notifications made to the commission concerning reclaimed water projects.(B) as applicable, copies of contracts made with each reclaimed water user (this requirement does not include reclaimed water users at residences that have separate distribution lines for potable water).(C) records of volume of water delivered to each reclaimed water user per delivery (this requirement does not apply to reclaimed water users at residences that have separate distribution lines for potable water).(D) reclaimed water quality analyses.(2) The reclaimed water provider or producer shall report to the commission on a monthly basis the following information on forms furnished by the executive director. Such reports are due to the commission by the 20th day of the month following the reporting period.(A) volume of reclaimed water delivered to a user or provider.(B) quality of reclaimed water delivered to a user or provider reported as a monthly average for each quality criteria except those listed as "not to exceed" which shall be reported as individual analyses.</content><note type="source"><p>Source Note: The provisions of this §210.36 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c210/scD"><num value="D">SUBCHAPTER D</num><heading>ALTERNATIVE AND PRE-EXISTING RECLAIMED WATER SYSTEMS</heading><section identifier="/us/state/tx/tac/t30/p1/c210/scD/s210.41"><num value="210.41">§210.41</num><heading>Applicability of Alternate Reclaimed Water Proposals</heading><content>In the event a reclaimed water provider or user proposes to design, construct, or operate a reclaimed water system or to utilize reclaimed water in a manner other than authorized in these rules, the provisions of this subchapter shall apply.</content><note type="source"><p>Source Note: The provisions of this §210.41 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scD/s210.42"><num value="210.42">§210.42</num><heading>Request to Executive Director</heading><content>(a) If a reclaimed water provider or user proposes to design, construct, or operate a reclaimed water system or to utilize reclaimed water in a manner other than authorized in these rules, the provider or user shall file a request with the executive director, in addition to the notification filed pursuant to §210.4 of this title (relating to Notification), identifying the alternative proposal and requesting approval by the executive director.(b) The request shall be in writing and shall include information necessary or useful in assisting the executive director in acting on the request for approval of the alternate reclaimed water proposal.</content><note type="source"><p>Source Note: The provisions of this §210.42 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scD/s210.43"><num value="210.43">§210.43</num><heading>Action on Alternative Reclaimed Water Proposals</heading><content>The executive director shall review an alternate reclaimed water proposal filed under §210.42 of this title (relating to Request to Executive Director). Within 60 days, the executive director shall identify in writing to the requestor any additional information necessary for the executive director to act on the request, and provide the requestor sufficient time to provide such information. Following the receipt of such information, the executive director shall act on the request, either granting or denying the proposal, in whole or in part. If no additional information is requested, the executive director shall act on the request within 60 days, either granting or denying the proposal, in whole or in part.</content><note type="source"><p>Source Note: The provisions of this §210.43 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scD/s210.44"><num value="210.44">§210.44</num><heading>Pre-existing Reclaimed Water Systems</heading><content>A reclaimed water system not already authorized by a commission permit or other written approval, existing on the effective date of these rules, where construction began prior to June 25, 1990, is authorized under this chapter if the provider or user of such a system provides a detailed description of the system to the executive director pursuant to the notification procedures of §210.4 of this title (relating to Notification) and the system is approved by the executive director. Such notification must occur within 90 days of the effective date of these rules. The system is authorized unless the executive director requests additional information pursuant to §210.45 of this title (relating to Actions on Pre-existing Reclaimed Water Systems) or denies such authorization pursuant to the provisions of §210.46 of this title (relating to Denial of Request).</content><note type="source"><p>Source Note: The provisions of this §210.44 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scD/s210.45"><num value="210.45">§210.45</num><heading>Action on a Pre-existing Reclaimed Water System</heading><content>(a) The executive director may request a reclaimed water user to submit additional information concerning a pre-existing reclaimed water system to be authorized under this subchapter. The additional information may be requested in order to evaluate the potential for significant water quality problems or potential for significant risks to the health or safety of the public, including the need of a project to conform to one or more of the requirements of this chapter. Such request shall be provided in writing to the proposed reclaimed water user within 60 days of the receipt of the notification and shall provide the proposed user not less than 30 days to provide such additional information.(b) Following the receipt of such information, the executive director shall act on the request, either granting or denying the proposal, in whole or in part. If no additional information is requested, the executive director shall act on the request within 60 days, either granting or denying the proposal, in whole or in part.</content><note type="source"><p>Source Note: The provisions of this §210.45 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scD/s210.46"><num value="210.46">§210.46</num><heading>Denial of Request</heading><content>The executive director shall not grant an alternate reclaimed water proposal or grant authorization to a pre-existing reclaimed water system which could pose a significant threat to water quality or which represents a significant risk to human health or safety.</content><note type="source"><p>Source Note: The provisions of this §210.46 adopted to be effective February 12, 1997, 22 TexReg 1103.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c210/scE"><num value="E">SUBCHAPTER E</num><heading>SPECIAL REQUIREMENTS FOR USE OF INDUSTRIAL RECLAIMED WATER</heading><section identifier="/us/state/tx/tac/t30/p1/c210/scE/s210.51"><num value="210.51">§210.51</num><heading>Applicability, Purpose, and Scope</heading><content>(a) A person proposing to use industrial wastewater as industrial reclaimed water may obtain authorization under this subchapter if all of the requirements of the subchapter are met. The purpose of this subchapter is to establish the applicable requirements for industrial reclaimed water use which may be used instead of potable water or raw water. As defined and specified in this subchapter, the requirements must be met by the producers, providers, and users of industrial reclaimed water. These requirements are intended to allow the safe utilization of reclaimed water for conservation of surface water and groundwater, to ensure the protection of public health, to protect surface water and groundwater from contamination, and to help ensure an adequate supply of water resources for present and future needs.(b) This subchapter establishes the following requirements for producers, providers, and users of industrial reclaimed water:(1) general requirements applicable to producers, providers, and users;(2) requirements and specifications for transfer, storage, irrigation, and other end uses;(3) requirements and specifications necessary to minimize the impact of discharge of waste into or adjacent to water in the state;(4) specific uses of industrial reclaimed water;(5) standards for the quality of industrial reclaimed water;(6) standards for monitoring and recordkeeping; and(7) payment of fees.(c) The requirements of this subchapter to obtain an authorization do not apply to the end use of industrial reclaimed water when the end use is authorized by permit, including, but not limited to, a Texas Pollutant Discharge Elimination System permit or a Texas Land Application permit, or by commission rules other than those in this subchapter. The end uses of industrial wastewater that are subject to the requirements of this subchapter include landscape irrigation, dust suppression, soil compaction, impoundment maintenance, or industrial wastewater that is otherwise land applied for a beneficial purpose. When a use of industrial reclaimed water is regulated under Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), that use shall comply with the requirements of Chapter 335 of this title in addition to the requirements of this subchapter.(d) Internal recycling systems, closed loop systems, and systems that use industrial wastewater as makeup water within a facility are not subject to the requirements of this subchapter.(e) The use of industrial wastewater as industrial reclaimed water as authorized by this subchapter does not require an amendment of any issued industrial wastewater discharge permit to recognize the activity authorized under this subchapter. Effluent limitations in the industrial wastewater discharge permit remain in effect for and during industrial reclaimed water use activities.(f) Industrial reclaimed water projects approved under this subchapter do not require a new or amended permit from the commission except as provided by §210.5 of this title (relating to Authorization for the Use of Reclaimed Water). To develop projects not specifically authorized by this subchapter, a person may seek authorization for a new or amended waste discharge permit under Chapter 305 of this title (relating to Consolidated Permits).(g) Nothing in this subchapter shall alter any requirement to obtain a water right authorization.</content><note type="source"><p>Source Note: The provisions of this §210.51 adopted to be effective December 11, 2002, 27 TexReg 11611.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scE/s210.52"><num value="210.52">§210.52</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise.(1) Blowdown--The discharge of recirculating water for the purpose of discharging materials contained in the water, the further buildup of which would cause concentration in amounts that could damage or impair machinery, equipment, or systems.(2) CFR--Code of Federal Regulations.(3) Commingled wastewater--Industrial wastewater that contains any amount of domestic wastewater.(4) Containing--When the pollutant(s) of concern are measured at levels that exceed the minimum analytical level.(5) Discharge--The release or disposal of waste into or adjacent to any water in the state that in itself or in conjunction with any other discharge or activity causes, continues to cause, or will cause pollution of any of the water in the state.(6) Dioxins and furans--Tetra, penta, hexa, hepta, and octa-chlorinated dibenzo dioxins and furans.(7) End use--Landscape irrigation, soil compaction, dust suppression, impoundment maintenance, or industrial wastewater that is otherwise land applied in accordance with all applicable regulations.(8) Industrial reclaimed water--Any industrial wastewater which has been treated, if necessary, to a quality suitable for land application for beneficial use.(9) Industrial wastewater--A non-domestic or non-municipal wastewater.(10) Land application--The discharge of waste adjacent to water in the state.(11) MGD--Million gallons per day.(12) Minimum analytical level (MAL)--The lowest concentration at which a particular substance can be quantitatively measured in the matrix of concern (i.e., wastewater) with a defined precision level, using approved analytical methods.(13) Non-contact cooling water--Water used for cooling which does not come into direct contact with any raw material, intermediate product, waste product, by-product, or finished product.(14) On-site--The use of industrial reclaimed water within the boundaries of the industrial facility or within the boundaries of property that is contiguous to the facility and owned or operated by the producer.(15) Once-through cooling water--Water passed through main cooling condensers in one or two passes for the purpose of removing waste heat.(16) Playa lake--A shallow (generally less than one meter deep), isolated, naturally ephemeral approximately circular lake located in an enclosed basin in the High Plains and West Central Plains areas of the state.(17) POTW--Publicly-owned treatment works.(18) Priority pollutants--The pollutants as listed in 40 CFR Part 122, Appendix D, Tables 2 and 3, plus 2,3,7,8-Tetrachlorodibenzo-p-dioxin and asbestos.(19) Process wastewater--Any water which, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product.(20) Producer--A person who produces industrial reclaimed water as identified in this subchapter.(21) SU--Standard units.(22) Tail water--The runoff of irrigation water from the lower end of an irrigated field.</content><note type="source"><p>Source Note: The provisions of this §210.52 adopted to be effective December 11, 2002, 27 TexReg 11611.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scE/s210.53"><num value="210.53">§210.53</num><heading>Wastes Eligible for Coverage</heading><content>(a) Level I eligibility. A producer is eligible for Level I authorization if the producer uses any of the following wastes on-site and has a primary disposal method as an alternative to reuse and an end use listed in §210.56(b) of this title (relating to Authorization Requirements): (1) air conditioner condensate; compressor condensate; steam condensate; or condensate that forms externally on steam lines and is not process wastewater; (2) washwater from washing whole fruits and vegetables; (3) non-contact cooling water; (4) once through cooling water; (5) water treatment filter backwash; (6) water from routine external washing of buildings, conducted without the use of detergents or other chemicals; (7) water from routine washing of pavement conducted without the use of detergents or other chemicals and where spills or leaks of toxic or hazardous waste have not occurred (unless spilled material has been removed); (8) cooling tower blowdown with a total dissolved solids concentration less than 2,000 milligrams per liter; or (9) wastewater with measured effluent concentrations at or below threshold levels listed in the figure contained in this paragraph that is not a waste source listed in §210.54(a) of this title (relating to Wastes Not Eligible for Coverage). For all other priority pollutants in 40 CFR Part 122 Appendix D, Tables II and III, the threshold level is set at the minimum analytical level. Attached Graphic(b) Level II eligibility. A producer is eligible to apply for Level II authorization for any of the following: (1) industrial reclaimed water containing pollutant concentration levels which exceed threshold levels listed in the figure contained in subsection (a)(9) of this section, but which is not a listed waste in §210.54(a) of this title; (2) industrial reclaimed water that contains any amount of domestic wastewater; (3) the proposed end use of industrial reclaimed water is not on-site; (4) the proposed end use is not listed in §210.56(b)(2) of this title; or (5) the disposal method proposed as an alternative to reuse is not listed in §210.56(b)(1) of this title.</content><note type="source"><p>Source Note: The provisions of this §210.53 adopted to be effective December 11, 2002, 27 TexReg 11611.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scE/s210.54"><num value="210.54">§210.54</num><heading>Wastes Not Eligible for Coverage</heading><content>(a) The following wastes are not eligible for authorization under this subchapter regardless of effluent quality or end use:(1) wastewater containing radioactive material regulated under Texas Health and Safety Code, Chapter 401;(2) wastewater containing dioxin and furans;(3) wastewater containing pesticides;(4) wastewater classified as or which is characteristically hazardous as defined by 40 Code of Federal Regulations (CFR) Part 261;(5) process wastewater regulated under 40 CFR Parts 400 - 471 with the following exceptions:(A) Part 405 - dairy products processing;(B) Part 406 - grain mills;(C) Part 407 - canned and preserved fruits and vegetables;(D) Part 408 - canned and preserved seafood processing;(E) Part 409 - sugar processing;(F) Part 411 - cement manufacturing;(G) Part 417 - soap and detergent manufacturing;(H) Part 423 - steam electric power generating;(I) Part 434 - coal mining;(J) Part 436 - mineral mining and processing;(K) Part 454 - gum and wood chemicals manufacturing; and(L) Part 460 - hospital;(6) septic tank waste, chemical toilet waste, grit trap waste, or grease trap waste;(7) barge cleaning washwater;(8) air scrubber wastewater;(9) any wastewater where a permit by rule authorized under Chapter 321 of this title (relating to Control of Certain Activities by Rule) or commission-issued general permit for land application is available; or(10) remediated/contaminated groundwater generated from facilities where process wastewater is prohibited for use as listed in paragraph (5) of this subsection.(b) Producers who could otherwise be eligible to obtain authorization under this chapter, but who do not implement all required applicable conditions of this authorization must apply for and obtain permit coverage.(c) Discharges into or adjacent to water in the state shall not be authorized under this chapter where prohibited by applicable rules including, but not limited to, Chapter 213 of this title (relating to Edwards Aquifer); Chapter 311 of this title (relating to Watershed Protection); and Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste).(d) Any user proposing to irrigate or store wastewater within the boundaries of a playa lake may not obtain authorization under this subchapter and must obtain a Texas Pollutant Discharge Elimination System discharge permit for authorization to discharge into a playa lake.</content><note type="source"><p>Source Note: The provisions of this §210.54 adopted to be effective December 11, 2002, 27 TexReg 11611.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scE/s210.55"><num value="210.55">§210.55</num><heading>Application Requirements for Authorization</heading><content>(a) Level I authorization. Producers eligible for Level I authorization under this subchapter are authorized to use industrial reclaimed water without any notification or approval by the executive director. Effluent sampling is not required for wastes listed in §210.53(a)(1) - (8) of this title (relating to Wastes Eligible for Coverage) with the exception of cooling tower blowdown which must meet the 2,000 milligrams per liter threshold level for total dissolved solids.(b) Level II authorization. Producers requesting Level II authorization for industrial reclaimed water activities under this subchapter must submit a complete application to the executive director on a form approved by the executive director to request authorization. The use of industrial reclaimed water shall not begin until written authorization is received from the executive director. The application shall include, at a minimum, the following information:(1) the legal names and addresses of the user, provider, and producer;(2) contact representative for the applicant and telephone number;(3) specific description of the producer's and user's facility location including physical address;(4) specific description of the proposed industrial reclaimed water use site (if different than the producer's site);(5) the proposed end use for the industrial reclaimed water;(6) description of the waste source of the industrial reclaimed water;(7) the primary disposal method which would be used as an alternative to re-use;(8) the volume of industrial reclaimed water proposed for end use and the frequency of application;(9) effluent testing results;(10) the location of the producer's and user's site in relation to the Edwards Aquifer, if applicable, and;(11) liner certification, if applicable.(c) If the end use is not on-site, the producer shall also provide all information described in §210.4 of this title (relating to Notification).</content><note type="source"><p>Source Note: The provisions of this §210.55 adopted to be effective December 11, 2002, 27 TexReg 11611.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scE/s210.56"><num value="210.56">§210.56</num><heading>Authorization Requirements</heading><content>(a) Requirements in other subchapters.(1) Paragraphs (2) - (6) of this subsection do not apply to commingled water. The commingled wastewater is subject to all requirements of §§210.1 - 210.9 of this title (relating to Applicability; Purpose and Scope; Definitions; Notification; Authorization for the Use of Reclaimed Water; Responsibilities; Transfer and Conveyance of Reclaimed Water; Restrictions; and Enforcement), §§210.21 - 210.25 of this title (relating to Applicability; General Requirements; Storage Requirements for Reclaimed Water; Irrigation Using Reclaimed Water; and Special Design Criteria for Reclaimed Water Systems), and §§210.31 - 210.36 of this title (relating to Applicability; Specific Uses of Reclaimed Water; Quality Standards for Using Reclaimed Water; Sampling and Analysis; Guidelines for Certain Distribution Systems; and Record Keeping and Reporting).(2) Except as specified in this subchapter, the requirements for a reclaimed water producer, provider, and user described in Subchapters A - D of this chapter (relating to General Provisions; General Requirements for the Production, Conveyance, and Use of Reclaimed Water; Quality Criteria and Specific Uses For Reclaimed Water; and Alternative and Pre-Existing Reclaimed Water Systems) apply to a producer, provider, and user of industrial reclaimed water.(3) A producer, provider, or user of industrial reclaimed water is not required to treat industrial water or hold a permit for treatment and disposal as described in §210.1 and §210.5(a) of this title.(4) A producer who uses industrial reclaimed water on-site only is not required to comply with §210.4 of this title. The producer must comply with all applicable requirements of this subchapter pertaining to the industrial reclaimed water use.(5) The requirements of §210.25(e), (f), and (h) of this title do not apply to the producer, provider, or user of industrial reclaimed water used on-site only.(6) The requirements of §§210.22(a) and (e) and 210.31 - 210.36 of this title, do not apply to the producer, provider, or user of industrial reclaimed water.(b) General requirements. Producers required to obtain Level I authorization to use industrial reclaimed water under this subchapter must comply with the following:(1) have an authorized means of disposal as an alternative to reuse, which includes one or more of the following:(A) have authority to discharge under a permit;(B) have authority to route to a publicly-owned treatment works (POTW); or(C) have the ability to recycle the industrial reclaimed water in a manner that does not discharge into or adjacent to water in the state;(2) have an end use which includes one or more of the following and is on-site:(A) irrigation, including landscape irrigation;(B) fire protection;(C) dust suppression and soil compaction;(D) maintenance of impoundments;(E) irrigation of non-food crops, including, but not limited to, sod farms and silviculture; and(F) irrigation of pastures for milking animals.(3) If the producer's facility is within the service area of a POTW, the producer must provide notice to the POTW of the producer's intent to use industrial wastewater under this subchapter.(4) The distribution, use, and storage of industrial reclaimed water may not cause or result in nuisance conditions.(5) The producer, provider, and user also shall comply with all applicable rules under Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste).(c) Eligible Level I authorizations not able to meet §210.56(b). If the producer is eligible for Level I authorization but cannot meet the requirements of subsection (b) of this section, the producer shall submit an application for a Level II authorization to use reclaimed water.(d) Industrial reclaimed limitations for Level II authorizations.(1) The producer shall comply with the limitations and monitoring frequencies outlined in subparagraphs (A) - (C) of this paragraph for an authorization request which has been approved by the executive director:(A) total organic carbon is limited to 55 milligrams per liter and shall be monitored once per month by grab sample;(B) pH is limited to a minimum of 6.0 standards units (su) and a maximum of 9.0 su and shall be monitored once per week by grab sample; and(C) the executive director may include additional limitations or increased monitoring frequencies based on information provided by the applicant, or any other available information.(2) Sampling shall be conducted only if industrial reclaimed water use occurs during the monitoring period. If industrial reclaimed water use occurs less than the specified frequency, samples shall be obtained during use.(e) General or individual permits. Level II authorization does not change any general or individual permit limits or requirements for an industrial wastewater discharge activity.(f) Irrigation requirements.(1) The provider or user shall comply with all requirements regarding irrigation in §210.24 of this title, as well as the requirements of this subchapter.(2) Irrigation practices shall be designed and managed to prevent contamination of groundwater or surface water and to prevent the occurrence of nuisance conditions. Tail water control facilities shall be provided, where necessary, to prevent the discharge of any industrial reclaimed water from irrigated lands into or adjacent to water in the state.(3) No industrial reclaimed water may be land applied when the ground is frozen or saturated or during rainfall events.(4) When applying industrial reclaimed water to land, a buffer area must be maintained around water wells to prevent the possibility of waste transport to groundwater via the well or well casing. Industrial reclaimed water shall not be applied within 250 feet of a private water well (used for domestic or irrigation use) or 500 feet of a public water supply well.(5) The user shall provide adequate maintenance of the irrigation facilities to ensure that the facilities are in good working condition.(g) Storage requirements.(1) All industrial reclaimed water retention, holding, and transfer ponds shall be operated in such a manner as to maintain a minimum freeboard of two feet.(2) Ponds shall not be used for disposal.(h) Liner requirements. Under Level I and Level II authorizations, industrial reclaimed water is considered equivalent to Type I reclaimed water. The producer, provider, or user shall comply with liner requirements outlined in §210.23 of this title.(i) Off-site use.(1) Any proposed use of industrial reclaimed water which is not considered on-site must comply with the requirements in the following sections in addition to the applicable requirements of this subchapter:(A) §210.4 of this title;(B) §210.6 of this title;(C) §210.7 of this title; and(D) §210.25 of this title.(2) If the producer provides domestic water or wastewater services to the public such as at a university, hospital, hotel, or similar institution then all exposed or buried piping receiving industrial reclaimed water constructed within the boundaries of the industrial facility is exempt from the color coding requirements of §210.25 of this title.(j) Authorization to use industrial reclaimed water. Authorization to use industrial reclaimed water is separate from the general and individual permit requirements for wastewater discharges under Chapter 205 and Chapter 305 of this title (relating to General Permits for Waste Discharges; and Consolidated Permits).</content><note type="source"><p>Source Note: The provisions of this §210.56 adopted to be effective December 11, 2002, 27 TexReg 11611.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scE/s210.57"><num value="210.57">§210.57</num><heading>Sampling and Record Keeping Requirements</heading><content>(a) Level I authorizations. No additional sampling or monitoring is required by the producer, user, or provider other than the requirements already established in this subchapter.(b) Level II authorizations.(1) Sampling.(A) The producer shall sample the reclaimed water after final treatment, if any, but before distribution to a provider or user and analyze such samples to assure that the water quality meets the limitations required by the authorization. The producer shall sample for the parameters listed in §210.56(d) of this title (relating to Authorization Requirements) and any additional parameters required by the executive director in the authorization.(B) If any of the sample results exceed the limitations in the authorization, the producer may not use the wastewater, may not route the industrial wastewater to a user or provider, and shall use the means of disposal instead of reuse. The producer has the option to provide additional treatment to meet the limitations and, if the limitations are met, the water may be used as industrial reclaimed water.(C) Analytical methods for the analyses shall meet the requirements specified in Chapter 319 of this title (related to General Regulations Incorporated into Permits).(D) Monitoring samples and measurements shall be taken at times and in a manner so as to be representative of the monitored activity.(2) Recordkeeping requirements.(A) The producer shall maintain records of notifications made to the executive director under this subchapter concerning industrial reclaimed water use.(B) The producer shall maintain records of all monitoring activities. These records shall be readily available for inspection by the executive director for a minimum period of five years. Records of monitoring activities shall include:(i) date, time, and place of sample or measurement;(ii) identity of individual who collected the sample or made the measurement;(iii) date of analysis;(iv) identity of the individual and laboratory who performed the analysis;(v) the technique or method of analysis; and(vi) the results of the analysis or measurement.(C) The user shall maintain an operating log which records irrigation activities and shall be readily available for inspection by the executive director for a minimum period of five years. The operating log shall record irrigation activities which include:(i) the volume of industrial reclaimed water used for irrigation each day; and(ii) the actual surface area wetted each day.</content><note type="source"><p>Source Note: The provisions of this §210.57 adopted to be effective December 11, 2002, 27 TexReg 11611.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scE/s210.58"><num value="210.58">§210.58</num><heading>Existing Authorizations</heading><content>(a) A person who has obtained executive director written approval to use industrial reclaimed water under this subchapter is authorized to continue as currently authorized.(b) If a person is no longer authorized under a Level I authorization, the producer shall obtain authorization for the reuse of industrial wastewater within 180 days of the effective date of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §210.58 adopted to be effective December 11, 2002, 27 TexReg 11611.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scE/s210.59"><num value="210.59">§210.59</num><heading>Executive Director Denial or Suspension Authorization</heading><content>(a) The executive director may deny or suspend an authorization request to use industrial reclaimed water under this subchapter based on potential or actual adverse impact to the environment or on close proximity to a public park, school, recreational area, spring, aquifer, water supply well, surface water supply intake, water treatment plant intake, potable water storage facility, sewage treatment plant, or other location of concern. A determination of potential adverse impact may arise from consideration of such factors as, but not limited to, proposed flow rate, production rate, industrial reclaimed water quality, nature of the groundwater, soils, or geology of the disposal area. In making a determination of potential adverse impacts, the executive director may also consider such other factors, as he deems appropriate.(b) The following requirements apply to suspensions of authorizations.(1) The suspension issued under this subchapter will include a statement that requires the executive director to provide written notice to a person stating that the executive director intends to suspend a person's authority to use reclaimed water under the authorization, including:(A) a brief statement of the basis for this decision under this subsection;(B) a statement by the executive director of whether the person shall immediately cease the use of industrial reclaimed water; and(C) a deadline for obtaining authorization under Texas Water Code (TWC), Chapter 26.(2) The executive director may require the person whose authorization to use reclaimed water is suspended to apply for and obtain an individual permit.(3) The executive director may suspend authorization to use industrial reclaimed water under an existing authorization issued under this subchapter for the following reasons:(A) the quantity of industrial reclaimed water used, the type of waste or reclaimed water, or the type of operation does not comply with this chapter;(B) the use, irrigation, or discharge causes a violation of the Texas Surface Water Quality Standards; or(C) the wastewater used as industrial reclaimed water contains pollutants that cause or contribute to significant adverse effects on water quality. In making this determination, the executive director shall consider the following factors:(i) the location of the end use for industrial reclaimed water;(ii) the volume of wastewater used as industrial reclaimed water;(iii) the quantity and nature of pollutants contained in the wastewater used as industrial reclaimed water;(iv) whether the use of industrial reclaimed water would adversely affect groundwater quality, inconsistent with the policy specified in TWC, §26.401; and(v) other factors relating to the protection of water quality.(c) The compliance history of the producer, provider, and user will be evaluated prior to approval of any Level II authorization under this subchapter. Authorization may be suspended or denied or additional requirements may be established based on the evaluation of compliance history as outlined in Chapter 60 of this title (relating to Compliance History).</content><note type="source"><p>Source Note: The provisions of this §210.59 adopted to be effective December 11, 2002, 27 TexReg 11611.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scE/s210.60"><num value="210.60">§210.60</num><heading>Fees</heading><content>Each application submitted to the executive director for Level II authorization under this subchapter shall include a fee of $100.</content><note type="source"><p>Source Note: The provisions of this §210.60 adopted to be effective December 11, 2002, 27 TexReg 11611.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c210/scF"><num value="F">SUBCHAPTER F</num><heading>USE OF GRAYWATER SYSTEMS</heading><section identifier="/us/state/tx/tac/t30/p1/c210/scF/s210.81"><num value="210.81">§210.81</num><heading>Applicability</heading><content>(a) This subchapter applies to graywater and alternative onsite water generated and used at a private residence, commercial facility, industrial facility, institution, or agriculture facility regardless of the disposal method for other wastewater.(b) This subchapter does not apply to reclaimed water which is regulated by Subchapters A - E of this chapter (relating to General Provisions; General Requirements for the Production, Conveyance, and Use of Reclaimed Water; Quality Criteria and Specific Uses for Reclaimed Water; Alternative and Pre-Existing Reclaimed Water Systems; and Special Requirements for Use of Industrial Reclaimed Water).(c) This subchapter does not regulate the design, construction, or operation of on-site sewage facilities (OSSFs) but instead regulates the design, construction, and operation of alternative water reuse systems, combined reuse systems, and graywater reuse systems that may be located at a site that uses an OSSF. The design, construction, and operation of OSSFs are regulated by Chapter 285 of this title (relating to On-Site Sewage Facilities).(d) An existing graywater system shall comply with the requirements of this subchapter as they existed on the date installation was completed. The previous version of this subchapter is continued in effect for this purpose.(e) This subchapter does not authorize the diversion or impoundment of state water, as defined in Chapter 297 of this title (relating to Water Rights, Substantive).</content><note type="source"><p>Source Note: The provisions of this §210.81 adopted to be effective January 6, 2005, 29 TexReg 12195; amended to be effective December 29, 2016, 41 TexReg 10364.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scF/s210.82"><num value="210.82">§210.82</num><heading>Definitions and General Requirements</heading><content>(a) Definitions. For the purposes of this subchapter, the following terms have the following meanings.(1) Alternative onsite water--rainwater, air-conditioner condensate, foundation drain water, stormwater, swimming pool backwash and drain water, or reverse osmosis reject water. Cooling tower blowdown is regulated by Subchapter E of this chapter (relating to Special Requirements for Use of Industrial Reclaimed Water); therefore, for the purposes of this subchapter, all references to alternative onsite water do not include cooling tower blowdown. Reverse osmosis reject water generated at industrial facilities, commercial facilities, and institutions is regulated by Subchapter E of this chapter; therefore, for the purposes of this subchapter, all references to alternative onsite water do not include reverse osmosis reject water generated at industrial facilities, commercial facilities, and institutions. Reverse osmosis reject water generated at private residences and agriculture facilities may be used in accordance with this subchapter. (2) Alternative water reuse system--a system designed and constructed to store and distribute one or more sources of alternative onsite water. An alternative water reuse system shall not contain, store, or distribute any graywater.(3) Combined reuse system--a system designed and constructed to store and distribute graywater and one or more sources of alternative onsite water.(4) Graywater-- wastewater from showers, bathtubs, handwashing lavatories, sinks that are used for disposal of household or domestic products, sinks that are not used for food preparation or disposal, and clothes-washing machines. Graywater does not include wastewater from the washing of material, including diapers, soiled with human excreta or wastewater that has come into contact with toilet waste. (5) Graywater reuse system--a system designed and constructed to store and distribute graywater only. A graywater reuse system shall not contain, store, or distribute any source of alternative onsite water.(b) Alternative water reuse systems. The following requirements apply to alternative water reuse systems used at a private residence, industrial facility, commercial facility, institution, or agriculture facility.(1) Water from an alternative water reuse system may be reused for beneficial purposes including but not limited to landscape irrigation, gardening, composting, foundation stabilization, and toilet and urinal flushing. An alternative water reuse system may store and use either a single source or a combination of sources of alternative onsite water, and in any volume.(2) Reverse osmosis reject water generated at an industrial facility, commercial facility, or an institution is prohibited from being stored and used in an alternative water reuse system. Reverse osmosis reject water generated by an industrial facility, commercial facility, or an institution is regulated by Subchapter E of this chapter. (3) Reuse of water from an alternative water reuse system does not require authorization from the commission if used in accordance with this subchapter. The property owner is responsible for ensuring that the alternative water reuse system is properly operated and maintained to comply with the requirements of this subchapter.(4) Water from an alternative water reuse system must be applied at a rate that will not result in ponding or pooling, or cause runoff across the property lines or onto any paved surface. (5) Water from an alternative water reuse system shall not be applied using a spray distribution system except in accordance with the following conditions.(A) Water from the spray distribution system must be applied at times when people and pets are not actively using the distribution area.(B) Water from the spray distribution system must not be applied during rainfall events, when the ground is frozen, or within 24 hours after one-half inch or more of rain.(C) Water from the spray distribution system must be applied at a rate to prevent ponding, puddling, or runoff.(D) Water from the spray distribution system must not be sprayed or allowed to drift off the property. (E) The spray distribution system must not be connected to a potable or raw water irrigation system unless suitable backflow prevention is provided to protect the potable or raw water system.(F) The spray distribution system must be inspected and repaired as needed to prevent discharges to water in the state or off the property. (6) The storage and use of water from an alternative water reuse system must not create a nuisance, threaten human health, or damage the quality of surface water or groundwater.(7) Swimming pool backwash and drain water cannot be used within five days of adding chemicals for shock or acid treatment.(8) Water from an alternative water reuse system that is used for toilet or urinal flushing must meet the following requirements. Property owners may refer to the regulatory guidance document that is required by the Texas Health and Safety Code, §341.039, for assistance in complying with these requirements.(A) For residential toilet or urinal flushing, Escherichia coli (E. coli) must be less than 14 most probable number (MPN) or colony-forming units (CFU) per 100 milliliters for 30-day geometric mean and less than 240 MPN or CFU per 100 milliliters maximum single grab sample. For industrial, commercial, or agricultural toilet or urinal flushing, E. coli must be less than 2.2 MPN or CFU per 100 milliliters for 30-day geometric mean and less than 200 MPN or CFU per 100 milliliters maximum single grab sample.(B) Total suspended solids must be less than 10.0 milligrams per liter for 30-day geometric mean and less than 30.0 milligrams per liter maximum single grab sample.(C) All exposed piping and piping carrying alternative onsite water within a building must be either purple pipe or painted purple; all buried piping must be either manufactured in purple, painted purple, taped with purple metallic tape, or bagged in purple; and all exposed piping must be stenciled in yellow with a warning reading "NON-POTABLE WATER." An alternative water reuse system that stores only rainwater, commonly referred to as a rainwater harvesting system, and uses the water for potable purposes in accordance with §290.44 of this title (relating to Water Distribution) is exempt from this subparagraph.(9) An alternative water reuse system cannot have a physical connection to an organized wastewater collection system or an on-site sewage facility (OSSF). When the system reaches capacity, it is allowed to overflow onto the ground only if the overflow is caused by inflow of rainwater or stormwater. Overflow under these conditions is exempt from the requirement of paragraph (4) of this subsection.(10) An alternative water reuse system may be subject to backflow prevention requirements in §290.44 of this title to protect public water supply systems from cross-contamination.(c) Graywater reuse systems and combined reuse systems. The following requirements apply to all graywater reuse systems and combined reuse systems.(1) Construction of a graywater reuse system or a combined reuse system, including storage and distribution systems, must comply with this subchapter and any requirements of the local permitting authority.(2) Water from a graywater reuse system or a combined reuse system must be applied at a rate that will not result in ponding or pooling and will not cause runoff across the property lines or onto any paved surface. (3) The storage and use of water from a graywater reuse system or a combined reuse system must not create a nuisance, threaten human health, or damage the quality of surface water or groundwater. (4) A graywater reuse system or combined reuse system may be subject to backflow prevention requirements in §290.44 of this title to protect public water supply systems from cross-contamination.</content><note type="source"><p>Source Note: The provisions of this §210.82 adopted to be effective January 6, 2005, 29 TexReg 12195; amended to be effective December 29, 2016, 41 TexReg 10364.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scF/s210.83"><num value="210.83">§210.83</num><heading>Residential Use of Graywater and Alternative Onsite Water</heading><content>(a) An authorization from the commission is not required for the residential use of graywater and alternative onsite water from a graywater reuse system or a combined reuse system when the total combined average is less than 400 gallons per day and the water is used in accordance with this subchapter. Unless directed by the executive director, an authorization from the commission is not required for the residential use of graywater and alternative onsite water from a graywater reuse system or a combined reuse system when the total combined average is greater than or equal to 400 gallons per day and the water is used in accordance with this subchapter.(b) The graywater and alternative onsite water must originate from a private residence. (c) Water from a graywater reuse system or a combined reuse system may only be used at the private residence for the following purposes:(1) to minimize foundation movement and cracking;(2) for gardening;(3) for composting;(4) for landscaping; or (5) for toilet or urinal flushing.(d) Graywater reuse systems and combined reuse systems are not authorized to overflow onto the ground under any circumstance.(1) Graywater reuse systems must be designed and constructed so that the storage tank required by subsection (e) of this section overflows to an organized wastewater collection system or an on-site sewage facility (OSSF) unless prohibited by Chapter 285, Subchapter H of this title (relating to Disposal of Graywater). The graywater must enter the organized wastewater collection system or OSSF through either one air gap or two backflow valves or backflow preventers. (2) Combined reuse systems must be designed and constructed so that 100% of the graywater can be diverted to an organized wastewater collection system or an OSSF, unless prohibited by Chapter 285, Subchapter H of this title, prior to entering the storage tank required by subsection (e) of this section. Graywater must be diverted to the organized wastewater collection system or OSSF during periods of non-use of the system or if the storage tank required by subsection (e) of this section reaches 80% capacity. The graywater must enter the organized wastewater collection system or the OSSF through either one air gap or two backflow valves or backflow preventers. (3) Combined reuse systems that store stormwater, rainwater, and/or foundation drain water must have an automatic shutoff system to stop the inflow of stormwater, rainwater, and foundation drain water into the combined reuse system. The automatic shutoff system must activate when the storage tank required by subsection (e) of this section reaches 80% capacity.(e) Except as authorized by subsection (j) of this section, graywater reuse systems and combined reuse systems must store the water in tanks and the tanks must: (1) be clearly labeled as non-potable water; (2) restrict access, especially to children; (3) eliminate habitat for mosquitoes and other vectors; (4) be able to be cleaned; and (5) meet the structural requirements of §210.25(i) of this title (relating to Special Design Criteria for Reclaimed Water Systems). (f) Graywater reuse systems and combined reuse systems must use piping that meets the piping requirement of §210.25 of this title. (g) Water from a graywater reuse system or a combined reuse system shall not be applied using a spray distribution system except in accordance with the following conditions.(1) Water from the spray distribution system must meet the following limits: Escherichia coli (E. coli) must be less than 14 most probable number (MPN) or colony-forming units (CFU) per 100 milliliters for 30-day geometric mean and less than 240 MPN or CFU per 100 milliliters maximum single grab sample.(2) Water from the spray distribution system must be applied at times when people and pets are not actively using the distribution area.(3) Water from the spray distribution system must not be applied during rainfall events, when the ground is frozen, or within 24 hours after one-half inch or more of rain.(4) Water from the spray distribution system must be applied at a rate to prevent ponding, puddling, or runoff.(5) Water from the spray distribution system must not be sprayed or allowed to drift off property. (6) The spray distribution system must not be connected to a potable or raw water irrigation system unless suitable backflow prevention is provided to protect the potable or raw water system.(7) The spray distribution system must be inspected and repaired as needed to prevent discharges to water in the state or off property.(h) The property owner is responsible for ensuring that the graywater reuse system or combined reuse system is properly operated and maintained to achieve the following requirements. Monitoring and recordkeeping for E. coli and total suspended solids is not required. Property owners may refer to the regulatory guidance document that is required by the Texas Health and Safety Code, §341.039, for assistance in complying with these requirements.(1) Graywater and alternative onsite water shall be treated to remove debris such as lint, leaves, twigs, and branches prior to entering the storage tank by use of a 50 mesh screen. (2) Swimming pool backwash and drain water cannot be used within five days after adding chemicals for shock or acid treatment. (3) Water from a graywater reuse system or a combined reuse system that is used for toilet or urinal flushing must meet the following requirements.(A) E. coli must be less than 14 MPN or CFU per 100 milliliters for 30-day geometric mean and less than 240 MPN or CFU per 100 milliliters maximum single grab sample. (B) Total suspended solids must be less than 10.0 milligrams per liter for 30-day geometric mean and less than 30.0 milligrams per liter maximum single grab sample.(C) All exposed piping and piping carrying graywater and/or alternative onsite water within a building must be either purple pipe or painted purple; all buried piping must be either manufactured in purple, painted purple, taped with purple metallic tape, or bagged in purple; and all exposed piping must be stenciled in yellow with a warning reading "NON-POTABLE WATER." (i) Builders of private residences are encouraged to: (1) install plumbing in new housing to collect graywater and alternative onsite water from all allowable sources, taking into consideration end-use requirements and maintaining sufficient blackwater waste flow; and (2) design and install a subsurface distribution system around the foundation of new housing to minimize foundation movement or cracking. (j) Property owners who have been disposing of wastewater from residential clothes-washing machines, otherwise known as laundry graywater, directly onto the ground prior to January 6, 2005, may continue disposing of laundry graywater under the following conditions. (1) The disposal area must not create a nuisance or threaten human health. (2) Surface ponding must not occur in the disposal area. (3) The disposal area must support plant growth or be sodded with vegetative cover. (4) The disposal area must have limited access and use by residents and pets. (5) Laundry graywater that has been in contact with human or animal waste must not be disposed onto the ground surface. (6) Laundry graywater must not be disposed onto an area where the soil is wet. (7) A lint trap must be affixed to the end of the discharge line. (8) The system has not been altered after January 6, 2005, has not created a nuisance, and does not discharge graywater from any source other than clothes-washing machines.</content><note type="source"><p>Source Note: The provisions of this §210.83 adopted to be effective January 6, 2005, 29 TexReg 12195; amended to be effective December 29, 2016, 41 TexReg 10364.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scF/s210.84"><num value="210.84">§210.84</num><heading>Industrial, Commercial, or Institutional Use of Graywater and Alternative Onsite Water</heading><content>(a) For the purposes of this section, alternative onsite water does not include reverse osmosis reject water, as this source of water is regulated by Subchapter E of this chapter (relating to Special Requirements for Use of Industrial Reclaimed Water). (b) An authorization from the commission is not required for the use of graywater and alternative onsite water from a graywater reuse system or a combined reuse system at an industrial facility, commercial facility, or institution. Treatment required by this section does not require authorization from the commission.(c) The graywater and alternative onsite water must be generated and used onsite. (d) Graywater reuse systems and combined reuse systems are not authorized to overflow onto the ground under any circumstances. (1) Graywater reuse systems must be designed and constructed so that 100% of the graywater can be diverted to an organized wastewater collection system, on-site sewage facility (OSSF), authorized outfall in a wastewater discharge permit, or authorized disposal area in a Texas Land Application Permit (TLAP). The graywater must be diverted to the organized wastewater collection system, OSSF, authorized outfall in a wastewater discharge permit, or authorized disposal area in a TLAP during periods of non-use of the graywater reuse system or if the system reaches maximum capacity. The graywater must enter the organized wastewater system or OSSF through either one air gap or two backflow valves or backflow preventers. (2) Combined reuse systems must be designed and constructed so that 100% of the graywater can be diverted to an organized wastewater collection system, OSSF, authorized outfall in a wastewater discharge permit, or authorized disposal area in a TLAP prior to entering the combined reuse system. Graywater must be diverted to the organized wastewater collection system, OSSF, authorized outfall in a wastewater discharge permit, or authorized disposal area in a TLAP during periods of non-use of the system or if the combined reuse system reaches 80% capacity. The graywater must enter the organized wastewater collection system or the OSSF through either one air gap or two backflow valves or backflow preventers. (3) Combined reuse systems that store stormwater, rainwater, and/or foundation drain water must have an automatic shutoff system to stop the inflow of stormwater, rainwater, and foundation drain water into the combined reuse system. The automatic shutoff system must activate when the combined reuse system reaches 80% capacity.(e) Water from a graywater reuse system or a combined reuse system may be used onsite for the following activities. (1) Process water. Water from a graywater reuse system or a combined reuse system that is used for process water must be treated to a standard that allows the water to be used in operational processes. (2) Landscape maintenance. Water from a graywater reuse system or a combined reuse system that is used for landscape maintenance must meet the following limits. (A) If the water will be applied in areas with public access, the water must meet the following limits: (i) Escherichia coli (E. coli), 20 most probable number (MPN) or colony-forming units (CFU) per 100 milliliters (ml), 30-day geometric mean; or (ii) E. coli (not to exceed), 75 MPN or CFU per 100 ml, single grab sample. (B) If the water will be applied in areas with restricted access to the public, the water must meet the following limits: (i) E. coli, 200 MPN or CFU per 100 ml, 30-day geometric mean; or (ii) E. coli (not to exceed), 800 MPN or CFU per 100 ml, single grab sample. (3) Dust control. Water from a graywater reuse system or a combined reuse system that is used for dust control must meet the E. coli limits in paragraph (2)(B) of this subsection. (4) Toilet or urinal flushing. Water from a graywater reuse system or a combined reuse system that is used for toilet or urinal flushing must meet the following requirements. (A) E. coli must be less than 2.2 MPN or CFU per 100 ml for 30-day geometric mean and less than 200 MPN or CFU per 100 ml maximum single grab sample. (B) Total suspended solids must be less than 10.0 milligrams per liter for 30-day geometric mean and less than 30.0 milligrams per liter maximum single grab sample.(C) All exposed piping and piping carrying graywater and/or alternative onsite water within a building must be either purple pipe or painted purple; all buried piping installed after January 6, 2005, must be either manufactured in purple, painted purple, taped with purple metallic tape, or bagged in purple; and all exposed piping must be stenciled in yellow with a warning reading "NON-POTABLE WATER." (5) Other uses. Water from a graywater reuse system or a combined reuse system that is used for other similar activities must: (A) meet the E. coli limits in paragraph (2)(A) of this subsection if used in a way that the public may come into contact with the water; or(B) meet the E. coli limits in paragraph (2)(B) of this subsection if used in a way that the public will not come into contact with the water. (f) Water from a graywater reuse system or a combined reuse system that is required to meet the E. coli limits in subsection (e) of this section must be monitored for E. coli at least monthly. These records must be maintained at the site and be readily available for inspection by the commission for a minimum of five years.</content><note type="source"><p>Source Note: The provisions of this §210.84 adopted to be effective January 6, 2005, 29 TexReg 12195; amended to be effective December 29, 2016, 41 TexReg 10364.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c210/scF/s210.85"><num value="210.85">§210.85</num><heading>Agricultural Use of Graywater and Alternative Onsite Water</heading><content>(a) An authorization from the commission is not required for the use of graywater and alternative onsite water from a graywater reuse system or a combined reuse system for agricultural purposes. Treatment required by this section does not require authorization from the commission. (b) The graywater and alternative onsite water must be generated and used onsite. (c) Graywater reuse systems and combined reuse systems are not authorized to overflow onto the ground under any circumstances.(1) Graywater reuse systems must be designed and constructed so that 100% of the graywater can be diverted to an organized wastewater collection system or on-site sewage facility (OSSF), unless prohibited by Chapter 285, Subchapter H of this title (relating to Disposal of Graywater). The graywater must be diverted during periods of non-use of the graywater reuse system or if the system reaches maximum capacity. The graywater must enter the organized wastewater collection system or OSSF through either one air gap or two backflow valves or backflow preventers. (2) Combined reuse systems must be designed and constructed so that 100% of the graywater can be diverted to an organized wastewater collection system or OSSF, unless prohibited by Chapter 285, Subchapter H of this title prior to entering the combined reuse system. Graywater must be diverted to the organized wastewater collection system or OSSF during periods of non-use of the system or if the combined reuse system reaches 80% capacity. The graywater must enter the organized wastewater collection system or the OSSF through either one air gap or two backflow valves or backflow preventers. (3) Combined reuse systems that store stormwater, rainwater, and/or foundation drain water must have an automatic shutoff system to stop the inflow of stormwater, rainwater, and foundation drain water into the combined reuse system. The automatic shutoff system must activate when the combined reuse system reaches 80% capacity.(d) Water from a graywater reuse system or a combined reuse system may be used for the following activities. (1) Process water. Water from a graywater reuse system or a combined reuse system that is used for irrigation and other agricultural purposes may be treated to a standard that allows the water to be used in operational processes. (2) Landscape maintenance. Water from a graywater reuse system or a combined reuse system that is used for landscape maintenance must meet the following limits. (A) If the water will be applied in areas with public access, the water must meet the following limits: (i) Escherichia coli (E. coli), 20 most probable number (MPN) or colony-forming units (CFU) per 100 milliliters (ml), 30-day geometric mean; or (ii) E. coli (not to exceed), 75 MPN or CFU per 100 ml, single grab sample. (B) If the water will be applied in areas with restricted access to the public, the water must meet the following limits: (i) E. coli, 200 MPN or CFU per 100 ml, 30-day geometric mean; or (ii) E. coli, 800 MPN or CFU per 100 ml, single grab sample. (3) Dust control. Water from a graywater reuse system or a combined reuse system that is used for dust control must meet the E. coli limits in paragraph (2)(B) of this subsection. (4) Irrigation of fields. Water from a graywater reuse system or a combined reuse system that is used to irrigate fields where edible crops are grown or fields that are pastures for milking animals, the water must meet the E. coli limits in paragraph (2)(A) of this subsection. E. coli limits do not apply to graywater and alternative onsite water that is used to irrigate fields other than those where edible crops are grown or fields that are pastures for milking animals.(5) Toilet or urinal flushing. Water from a graywater reuse system or a combined reuse system that is used for toilet or urinal flushing must meet the following requirements. (A) E. coli must be less than 2.2 MPN or CFU per 100 ml for 30-day geometric mean and less than 200 MPN or CFU per 100 ml maximum single grab sample. (B) Total suspended solids must be less than 10.0 milligrams per liter for 30-day geometric mean and less than 30.0 milligrams per liter maximum single grab sample.(C) All exposed piping and piping carrying graywater and/or alternative onsite water within a building must be either purple pipe or painted purple; all buried piping must be either manufactured in purple, painted purple, taped with purple metallic tape, or bagged in purple; and all exposed piping must be stenciled in yellow with a warning reading "NON-POTABLE WATER."(6) Other uses. Water from a graywater reuse system or a combined reuse system that is used for other similar activities must: (A) meet the E. coli limits in paragraph (2)(A) of this subsection if used in a way that the public may come into contact with the water; or(B) meet the E. coli limits in paragraph (2)(B) of this subsection if used in a way that the public will not come into contact with the water. (e) Water from a graywater reuse system or a combined reuse system that is required to meet the E. coli limits in subsection (d) of this section must be monitored for E. coli at least monthly. These records must be maintained at the site and be readily available for inspection by the commission for a minimum period of five years.</content><note type="source"><p>Source Note: The provisions of this §210.85 adopted to be effective January 6, 2005, 29 TexReg 12195; amended to be effective December 29, 2016, 41 TexReg 10364.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c213"><num value="213">CHAPTER 213</num><heading>EDWARDS AQUIFER</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c213/scA"><num value="A">SUBCHAPTER A</num><heading>EDWARDS AQUIFER IN MEDINA, BEXAR, COMAL, KINNEY, UVALDE, HAYS, TRAVIS, AND WILLIAMSON COUNTIES</heading><section identifier="/us/state/tx/tac/t30/p1/c213/scA/s213.1"><num value="213.1">§213.1</num><heading>Purpose</heading><content>The purpose of this chapter is to regulate activities having the potential for polluting the Edwards Aquifer and hydrologically connected surface streams in order to protect existing and potential uses of groundwater and maintain Texas Surface Water Quality Standards. The activities addressed are those that pose a threat to water quality.(1) Consistent with Texas Water Code, §26.401, the goal of this chapter is that the existing quality of groundwater not be degraded, consistent with the protection of public health and welfare, the propagation and protection of terrestrial and aquatic life, the protection of the environment, the operation of existing industries, and the maintenance and enhancement of the long-term economic health of the state.(2) Nothing in this chapter is intended to restrict the powers of the commission or any other governmental entity to prevent, correct, or curtail activities that result or may result in pollution of the Edwards Aquifer or hydrologically connected surface waters. In addition to the rules of the commission, an applicant may also be required to comply with local ordinances and regulations providing for the protection of water quality.(3) The executive director shall review and act on an application subject to this chapter. The applicant or a person affected may file with the chief clerk a motion to overturn, under §50.139(a), (b), and (d) - (g) of this title (relating to Motion to Overturn Executive Director's Decision), of the executive director's final action on an Edwards Aquifer protection plan, modification to a plan, or exception.</content><note type="source"><p>Source Note: The provisions of this §213.1 adopted to be effective December 27, 1996, 21 TexReg 12125; amended to be effective September 1, 2005, 30 TexReg 4984.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scA/s213.2"><num value="213.2">§213.2</num><heading>Applicability and Person or Entity Required To Apply</heading><content>These rules specifically apply to the Edwards Aquifer and are not intended to be applied to any other aquifers in the state of Texas. Unless otherwise provided under this chapter, the owner of an existing or proposed site, such as a residential or commercial development, sewage collection system, or aboveground or underground storage tank facility for static hydrocarbons or hazardous substances, who proposes new or additional regulated activities under this chapter, must file and receive executive director approval of all appropriate applications prior to commencement of construction of new or additional regulated activities.</content><note type="source"><p>Source Note: The provisions of this §213.2 adopted to be effective December 27, 1996, 21 TexReg 12125.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scA/s213.3"><num value="213.3">§213.3</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, have the following meanings.(1) Abandoned well--A well that has not been used for six consecutive months. A well is considered to be in use in the following cases:(A) a non-deteriorated well that contains the casing, pump, and pump column in good condition; or(B) a non-deteriorated well that has been properly capped.(2) Aboveground storage tank facility--The site, tract, or other area where one or more aboveground storage tank systems are located, including all adjoining contiguous land and associated improvements.(3) Aboveground storage tank system--A non-vehicular device (including any associated piping) that is made of nonearthen materials; located on or above the ground surface, or on or above the surface of the floor of a structure below ground, such as a mineworking, basement, or vault; and designed to contain an accumulation of static hydrocarbons or hazardous substances.(4) Appropriate regional office--For regulated activities covered by this chapter and located in Hays, Travis, and Williamson Counties, the appropriate regional office is Region 11, located in Austin, Texas. For regulated activities covered by this chapter and located in Kinney, Uvalde, Medina, Bexar, and Comal Counties, the appropriate regional office is Region 13, located in San Antonio, Texas.(5) Best management practices (BMPs)--A schedule of activities, prohibitions, practices, maintenance procedures, and other management practices to prevent or reduce the pollution of water in the state. BMPs also include treatment requirements, operating procedures, and practices to control site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage. BMPs are those measures that are reasonable and necessary to protect groundwater and surface water quality, as provided in technical guidance prepared by the executive director or other BMPs that are technically justified based upon studies and other information that are generally relied upon by professionals in the environmental protection field and are supported by existing or proposed performance monitoring studies, including, but not limited to, the United States Environmental Protection Agency, American Society of Civil Engineers, and Water Environment Research Foundation guidance.(6) Capped well--A well that is closed or capped with a covering capable of preventing surface pollutants from entering the well. The cap must be able to sustain a weight of at least 400 pounds. The cap must not be easily removed by hand.(7) Commencement of construction--The initial disturbance of soils associated with clearing, grading, or excavating activities or other construction or regulated activities.(8) Edwards Aquifer--That portion of an arcuate belt of porous, waterbearing, predominantly carbonate rocks known as the Edwards (Balcones Fault Zone) Aquifer trending from west to east to northeast in Kinney, Uvalde, Medina, Bexar, Comal, Hays, Travis, and Williamson Counties; and composed of the Salmon Peak Limestone, McKnight Formation, West Nueces Formation, Devil's River Limestone, Person Formation, Kainer Formation, Edwards Group, and Georgetown Formation. The permeable aquifer units generally overlie the less-permeable Glen Rose Formation to the south, overlie the less-permeable Comanche Peak and Walnut formations north of the Colorado River, and underlie the less-permeable Del Rio Clay regionally.(9) Edwards Aquifer protection plan--A general term that includes a water pollution abatement plan, organized sewage collection system plan, underground storage tank facility plan, aboveground storage tank facility plan, or a modification or exception granted by the executive director.(10) Edwards Aquifer protection plan holder--The person who is responsible for compliance with an approved water pollution abatement plan, organized sewage collection system plan, underground storage tank facility plan, aboveground storage tank facility plan, or a modification or exception granted by the executive director.(11) Concentrated animal feeding operation--As defined in §321.32 of this title (relating to Definitions).(12) Geologic or manmade features--Features including, but not limited to, closed depressions, sinkholes, caves, faults, fractures, bedding plane surfaces, interconnected vugs, reef deposits, wells, borings, and excavations.(13) Geologic assessment--A report that is prepared by a geologist describing site-specific geology.(14) Geologist--A Texas licensed professional geoscientist who has training and experience in groundwater hydrology and related fields that enable that individual to make sound professional judgments regarding the identification of sensitive features located in the recharge zone or transition zone.(15) Groundwater conservation district--Any groundwater district created by the legislature or the commission subject to Texas Water Code, Chapter 36, to conserve, preserve, and protect the waters of a groundwater water reservoir.(16) Hazardous substance--Any substance designated as such by the administrator of the United States Environmental Protection Agency under the Comprehensive Environmental Response, Compensation, and Liability Act; regulated in accordance with Federal Water Pollution Control Act, Chapter 311; or any solid waste, or other substance that is designated to be hazardous by the commission, in accordance with Texas Water Code, §26.263 or Texas Health and Safety Code, §361.003.(17) Impervious cover--Impermeable surfaces, such as pavement or rooftops, that prevent the infiltration of water into the soil. Rainwater collection systems for domestic water supplies are not considered impervious cover.(18) Industrial wastewater discharge--Any category of wastewater except:(A) those that are primarily domestic in composition; or(B) those emanating from feedlot/concentrated animal feeding operations.(19) Injection well--An injection well as defined under Chapter 331 of this title (relating to Underground Injection Control).(20) Land application system--A wastewater disposal system designed not to discharge wastewater into a surface drainage way.(21) Licensed professional geoscientist--A geoscientist who maintains a current license through the Texas Board of Professional Geoscientists in accordance with its requirements for professional practice.(22) Organized sewage collection system--Any public or private sewage system for the collection and conveyance of sewage to a treatment and disposal system that is regulated in accordance with rules of the commission and provisions of Texas Water Code, Chapter 26. A system may include lift stations, force mains, gravity lines, and any other appurtenance necessary for conveying wastewater from a generating facility to a treatment plant.(23) Permanent best management practices--Best management practices used to prevent and control pollution from regulated activities after construction is complete.(24) Pollution--The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of, any water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property, or to public health, safety, or welfare, or impairs the usefulness of the public enjoyment of the waters for any lawful or reasonable purpose.(25) Private sewage facilities--On-site sewage facilities as defined under Chapter 285 of this title (relating to On-Site Sewage Facilities).(26) Private service lateral--A wastewater line extending from the building drain to an existing private or public sewage collection system or other place of disposal that provides service to one single-family residence or building, with the operation and maintenance as the sole responsibility of the tenant or owner of the building. A wastewater line extending from the convergence of private service laterals from more than one single-family residence or building is considered a sewage collection system.(27) Recharge zone--Generally, that area where the stratigraphic units constituting the Edwards Aquifer crop out, including the outcrops of other geologic formations in proximity to the Edwards Aquifer, where caves, sinkholes, faults, fractures, or other permeable features would create a potential for recharge of surface waters into the Edwards Aquifer. The recharge zone is identified as that area designated as such on official maps located in the agency's central office and in the appropriate regional office.(28) Regulated activity--(A) Any construction-related or post-construction activity on the recharge zone of the Edwards Aquifer having the potential for polluting the Edwards Aquifer and hydrologically connected surface streams. These activities include, but are not limited to:(i) construction of buildings, utility stations, utility lines, roads, highways, or railroads;(ii) clearing, excavation, or any other activities that alter or disturb the topographic, geologic, or existing recharge characteristics of a site;(iii) any installation of aboveground or underground storage tank facilities on the recharge or transition zone of the Edwards Aquifer; or(iv) any other activities that may pose a potential for contaminating the Edwards Aquifer and hydrologically connected surface streams.(B) Regulated activity does not include:(i) clearing of vegetation without soil disturbance;(ii) agricultural activities, except feedlots/concentrated animal feeding operations that are regulated under Chapter 321 of this title (relating to Control of Certain Activities by Rule);(iii) activities associated with the exploration, development, and production of oil, gas, or geothermal resources under the jurisdiction of the Railroad Commission of Texas;(iv) routine maintenance of existing structures that does not involve additional site disturbance, such as, but not limited to:(I) the resurfacing of existing paved roads, parking lots, sidewalks, or other development-related impervious surfaces; and(II) the building of fences, or other similar activities in which:(-a-) there is little or no potential for contaminating groundwater; or(-b-) there is little or no change to the topographic, geologic, or existing sensitive features; or(v) construction of single-family residences on lots that are larger than five acres, where no more than one single-family residence is located on each lot.(29) Sensitive feature--A permeable geologic or manmade feature located on the recharge zone or transition zone where:(A) a potential for hydraulic interconnectedness between the surface and the Edwards Aquifer exists; and(B) rapid infiltration to the subsurface may occur.(30) Sewage holding tank--A tank or other containment structure used to receive and store sewage until its ultimate disposal in an approved treatment facility.(31) Site--The entire area included within the legal boundaries of the property described in the application. Regulated activities on a site that is located partially on the recharge zone and transition zone, where the natural drainage in the transition zone flows back to the recharge zone, will be treated as if the entire site is located on the recharge zone.(32) Static hydrocarbon--A hydrocarbon that is liquid at atmospheric pressure and 20 degrees centigrade.(33) Stub out--A wye, tee, or other manufactured appurtenance placed in a sewage collection system providing a location for a future extension of the collection system.(34) Temporary best management practices--Best management practices used to prevent and control pollution from regulated activities during construction.(35) Tertiary containment--A containment method by which an additional wall or barrier is installed outside of the secondary storage vessel (e.g., tank or piping) or other secondary barrier in a manner designed to prevent a release from migrating beyond the tertiary wall or barrier before the release can be detected. Tertiary containment systems include, but are not limited to, impervious liners and vaults surrounding a secondary tank and/or piping system, or equivalent triple wall tank or piping system as approved by the executive director.(36) Transition zone--That area where geologic formations crop out in proximity to and south and southeast of the recharge zone and where faults, fractures, and other geologic features present a possible avenue for recharge of surface water to the Edwards Aquifer, including portions of the Del Rio Clay, Buda Limestone, Eagle Ford Group, Austin Chalk, Pecan Gap Chalk, and Anacacho Limestone. The transition zone is identified as that area designated as such on official maps located in the agency's central office and in the appropriate regional office.(37) Underground storage tank facility--The site, tract, or other defined area where one or more underground storage tank systems are located, including all contiguous land and associated improvements.(38) Underground storage tank system--Any one or combination of underground tanks and any connecting underground pipes used to contain an accumulation of regulated substances, the volume of which, including the volume of the connecting underground pipes, is 10% or more beneath the surface of the ground.(39) Well--A bored, drilled, or driven shaft, or an artificial opening in the ground made by digging, jetting, or some other method, where the depth of the well is greater than its largest surface dimension. A well is not a surface pit, surface excavation, or natural depression.</content><note type="source"><p>Source Note: The provisions of this §213.3 adopted to be effective December 27, 1996, 21 TexReg 12125; amended to be effective June 1, 1999, 23 TexReg 10477; amended to be effective November 3, 2002, 27 TexReg 10031; amended to be effective September 1, 2003, 28 TexReg 6291; amended to be effective September 1, 2005, 30 TexReg 4984.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scA/s213.4"><num value="213.4">§213.4</num><heading>Application Processing and Approval</heading><content>(a) Approval by the executive director.(1) No person may commence the construction of any regulated activity until an Edwards Aquifer protection plan or modifications to the plan as required by §213.5 of this title (relating to Required Edwards Aquifer Protection Plans, Notification, and Exemptions) or exception under §213.9 of this title (relating to Exceptions) has been filed with the appropriate regional office, and the application has been reviewed and approved by the executive director.(2) The appropriate regional office shall provide copies of applications to affected incorporated cities, groundwater conservation districts, and counties in which the proposed regulated activity will be located. These copies will be distributed within five days of the application being determined to be administratively complete. Any person may file comments within 30 days of the date the application is mailed to local governmental entities. The executive director shall review all comments that are timely filed.(3) A complete application for approval, as described in this section, must be submitted with the appropriate fee as specified in §213.12 of this title (relating to Application Fees).(4) Projects in progress when recharge and transition zone maps are revised.(A) For areas designated as recharge zone or transition zone on official maps prior to the effective date of this paragraph, and for which this designation did not change, all Edwards Aquifer protection plans submitted to the executive director, on or after the effective date of this paragraph, will be reviewed under all the provisions of the subchapter in effect on the date the plan is submitted.(B) For areas that were newly designated as recharge zone or transition zone on official maps on the effective date of this paragraph, regulated activities will be considered to have commenced construction and will be regulated under the provisions of this chapter that were in effect at the time the plan was approved by the executive director if, on the effective date, all federal, state, and local approvals or permits required to begin physical construction have been obtained, and if either on-site construction directly related to the development has begun or construction commences within six months of the effective date of this paragraph.(C) Regulated activities in areas designated as transition zone on official maps prior to the effective date of this paragraph and designated as recharge zone on the effective date of this paragraph will be regulated as transition zone activities if, on the effective date, all federal, state, and local approvals or permits required to begin physical construction have been obtained, and if either on-site construction directly related to the development has begun or construction commences within six months of the effective date of this paragraph.(D) The effective date of this paragraph is September 1, 2005.(5) Assumption of program by local government.(A) A local governmental entity may assume the rights, duties, and responsibilities to review and either approve or deny Edwards Aquifer protection plan applications within its boundaries and monitor and enforce compliance with plans if the local government obtains certification from the executive director.(B) In order to obtain certification, the local government must demonstrate that:(i) it has a water quality protection program equal to or more stringent than the rules contained in this chapter, including, but not limited to, a program that:(I) regulates activities covered under this chapter; and(II) has performance standards equal to or more protective of water quality;(ii) it has adopted ordinances or has other enforceable means sufficient to enforce the program throughout the local governmental entity's jurisdiction; and(iii) it has adequate resources to implement and enforce the program.(C) Upon approval of a request for certification under this section, the executive director shall enter into an agreement with the local governmental entity to provide for the terms and conditions of program assumption, including executive director oversight. Nothing in a certification or agreement shall affect the commission's ability to enforce its water quality protection rules or applicable state law.(D) An agreement under subparagraph (C) of this paragraph shall not provide for the payment of fees required by this chapter to the local entity, and shall not provide for partial assumption of the program unless expressly authorized by the commission. Fees shall be paid to the commission for continued proper oversight and enforcement.(E) Certification shall be for a term not to exceed five years, subject to renewal.(F) Upon written notice, certification may be revoked or suspended by the executive director if the local entity does not meet the terms and conditions of the agreement provided under subparagraph (D) of this paragraph, or fails to meet the criteria for certification provided under subparagraph (B) of this paragraph.(G) A decision by the executive director under this section is not subject to appeal to the commission.(b) Contents of application.(1) Forms provided by the executive director. Applications for approval filed under this chapter must be made on forms provided by or approved by the executive director. Each application for approval must, at a minimum, include the following:(A) the name of the development, subdivision, or facility for which the application is submitted;(B) a narrative description of the location of the project or facility for which the application is submitted, presenting sufficient detail and clarity so that the project site and its boundaries can be located during a field inspection;(C) the name, address, and telephone number of the owner or any other person signing the application; and(D) the information needed to determine the appropriate fee under §213.14 of this title (relating to Fee Schedule) for the following plan types:(i) for water pollution abatement plans and modifications to plans, the total acreage of the site where regulated activities will occur;(ii) for organized sewage collection system plans and modifications to plans, the total linear footage of all collection system lines; or(iii) for static hydrocarbon and hazardous substance storage in underground or permanent aboveground storage tank facility plans, the total number of tanks or piping systems.(2) Additional information. Each application must also include the following information, as applicable:(A) for water pollution abatement plans, the information required under §213.5(b) of this title;(B) for organized sewage collection system plans, the information required under §213.5(c) of this title;(C) for static hydrocarbon and hazardous substance storage in underground storage tank systems, the information required under §213.5(d) of this title;(D) for static hydrocarbon and hazardous substance storage in aboveground storage tank systems, the information required under §213.5(e) of this title; and(E) any other pertinent information related to the application that the executive director may require.(c) Application submittal.(1) One original and one copy of the application must be submitted for the executive director's review and additional copies as needed for each affected incorporated city, groundwater conservation district, and county in which the proposed regulated activities will be located. The copies must be submitted to the appropriate regional office.(2) Only owners, their authorized agent(s), or those persons having the right to possess and control the property that is the subject of the Edwards Aquifer protection plan may submit the plan for review and approval by the executive director.(d) Signatories to applications.(1) Required signature. All applications must be signed as follows.(A) For a corporation, a principal executive officer (president, vice-president, or a duly authorized representative) must sign the application. A representative must submit written proof of the authorization.(B) For a partnership, a general partner must sign the application.(C) For a political entity such as a municipality, state, federal, or other public agency, either a principal executive officer or a duly authorized representative must sign the application. A representative must submit written proof of the authorization.(D) For an individual or sole proprietorship, the individual or sole proprietor must sign the application.(2) Proof of authorization to sign. The executive director requires written proof of authorization for any person signing an application.(e) Executive director review. The executive director must complete the review of an application within 90 days after determining that it is administratively complete. The executive director must declare that the application is administratively complete or deficient within 30 days of receipt by the appropriate regional office. Grounds for a deficient application include, but are not limited to, failure to pay all applicable application fees.(f) Additional provisions. As a condition of approval, the executive director may impose additional provisions deemed necessary to protect the Edwards Aquifer from pollution. The executive director may conditionally approve an Edwards Aquifer protection plan or impose special conditions on the approval of a plan.(g) Deed recordation.(1) The applicant must record in the deed records of the county in which the property is located that the property is subject to an approved Edwards Aquifer protection plan within 30 days of receiving written approval of:(A) a water pollution abatement plan;(B) an aboveground storage tank plan;(C) an underground storage tank plan;(D) modifications to any of these plans for a proposed regulated activity; or(E) an exception.(2) A description of the property boundaries that is covered by the Edwards Aquifer protection plan shall be recorded in the county deed records.(3) Within 60 days of receiving written approval of an Edwards Aquifer protection plan, the applicant must submit, to the appropriate regional office, proof of recordation of notice in the county deed records, with the volume and page number(s) of the county record.(4) The construction of a public street or highway is exempt from all deed recordation requirements.(h) Term of approval. The executive director's approval of an Edwards Aquifer protection plan will expire two years after the date of initial issuance, unless prior to the expiration date, substantial construction related to the approved plan has commenced. For purposes of this subsection, substantial construction means more than 10% of total construction has commenced. If a written request for an extension is filed under the provisions of this subsection, the approved plan will continue in effect until the executive director makes a determination on the request for an extension.(1) A written request for an extension must be received not earlier than 60 days prior to the expiration date of an approved Edwards Aquifer protection plan or a previously approved extension. Requests for extensions are subject to fees outlined in §213.13 of this title (relating to Fees Related to Requests For Extensions).(2) An executive director's approved extension will expire six months after the original expiration date of the approved Edwards Aquifer protection plan or a previously approved extension unless prior to the expiration date, commencement of construction, repair, or replacement related to the approved plan has occurred.(3) An Edwards Aquifer protection plan approval or extension will expire and no extension will be granted if more than 50% of the total construction has not been completed within ten years from the initial approval of a plan. A new Edwards Aquifer protection plan must be submitted to the appropriate regional office with the appropriate fees for review and approval by the executive director prior to commencing any additional regulated activities.(4) Any requests for extensions received by the executive director after the expiration date of an approved Edwards Aquifer protection plan or a previously approved extension will not be accepted. A new application for the purposes of this chapter must be submitted to the appropriate regional office with the appropriate fees for the review and approval by the executive director.(5) An extension will not be granted if the proposed regulated activity or approved plan for the regulated activity(ies) under this chapter has changed from the regulated activity(ies) approved by the executive director.(i) Legal transfer of property. Upon legal transfer of property, sewage collection systems, force mains, lift stations, underground storage tank system, or aboveground storage tank system, the new owner(s) is required to comply with all terms of the approved Edwards Aquifer protection plan. If the new owner intends to commence any new regulated activity on the site, a new Edwards Aquifer protection plan that specifically addresses the new activity must be submitted to the executive director. Approval of the plan for the new regulated activity by the executive director is required prior to commencement of the new regulated activity.(j) Modification of previously approved plans. The holder of any approved Edwards Aquifer protection plan must notify the appropriate regional office in writing and obtain approval from the executive director prior to initiating any of the following:(1) any physical or operational modification of any water pollution abatement structure(s), including, but not limited to, ponds, dams, berms, sewage treatment plants, and diversionary structures;(2) any change in the nature or character of the regulated activity from that which was originally approved or a change that would significantly impact the ability of the plan to prevent pollution of the Edwards Aquifer;(3) any development of land previously identified as undeveloped in the original water pollution abatement plan;(4) any physical modification of the approved organized sewage collection system;(5) any physical modification of the approved underground storage tank system; or(6) any physical modification of the approved aboveground storage tank system.(k) Compliance. The holder of the approved or conditionally approved Edwards Aquifer protection plan is responsible for compliance with this chapter and any special conditions of the approved plan through all phases of plan implementation. Failure to comply with any condition of the executive director's approval is a violation of this chapter and is subject to administrative rule or orders and penalties as provided under §213.10 of this title (relating to Enforcement). Such violations may also be subject to civil penalties and injunction.</content><note type="source"><p>Source Note: The provisions of this §213.4 adopted to be effective December 27, 1996, 21 TexReg 12125; amended to be effective June 1, 1999, 23 TexReg 10477; amended to be effective July 18, 2002, 27 TexReg 6311; amended to be effective September 1, 2005, 30 TexReg 4984.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scA/s213.5"><num value="213.5">§213.5</num><heading>Required Edwards Aquifer Protection Plans, Notification, and Exemptions</heading><content>(a) Required plans. A plan must be submitted for the following, as appropriate:(1) a water pollution abatement plan under subsection (b) of this section to conduct regulated activities on the recharge zone not covered by subsections (c), (d), or (e) of this section;(2) an organized sewage collection system plan under subsection (c) of this section for rehabilitation or construction related to existing or new organized sewage collection systems on the recharge zone;(3) an underground storage tank facility plan for static hydrocarbon and hazardous substance storage under subsection (d) of this section for the construction or rehabilitation of an underground storage tank system; including tanks, piping, and related systems located on the recharge zone or transition zone; and(4) an aboveground storage tank facility plan for static hydrocarbon and hazardous substance storage under subsection (e) of this section for the construction or rehabilitation of an aboveground storage tank system; including tanks, piping, and related systems, for the storage of hydrocarbon or hazardous substance located on the recharge zone or transition zone.(b) Water pollution abatement plan. A water pollution abatement plan must contain the following information.(1) Application. The information required under §213.4 of this title (relating to Application Processing and Approval) is part of the plan and must be filed with the executive director at the appropriate regional office.(2) Site location.(A) Location data and maps must include a legible road map with directions, including mileage, which would enable the executive director to locate the site for inspection.(B) A general location map must include:(i) the site location on a copy (or spliced composite of copies, if necessary) of an official recharge zone map(s) with quadrangle name(s) and recharge and transition zone boundaries clearly labeled; and(ii) a drainage plan, shown on the recharge zone map, indicating all paths of drainage from the site.(C) A site plan with a minimum scale of one inch to 400 feet must show:(i) the 100-year floodplain boundaries (if applicable);(ii) the layout of the development showing existing and finished contours as appropriate, but not greater than ten-foot contour intervals;(iii) the location of all known wells (including, but not limited to, water wells, oil wells, and unplugged and abandoned wells);(iv) the location of any sensitive feature on the site of the proposed regulated activity as identified in the geologic assessment under paragraph (3) of this subsection;(v) the drainage patterns and approximate slopes anticipated after major grading activities;(vi) areas of soil disturbance and areas which will not be disturbed;(vii) locations of major structural and nonstructural controls identified in the technical report;(viii) locations where stabilization practices are expected to occur;(ix) surface waters (including wetlands); and(x) locations where stormwater discharges to a surface water or a sensitive feature.(3) Geologic assessment. For all regulated activities, the applicant must submit a geologic assessment report prepared by a geologist describing the site-specific geology. The report must identify all potential pathways for contaminant movement to the Edwards Aquifer. Single-family residential subdivisions constructed on less than ten acres are exempt from this requirement. The geologic assessment report must be signed, sealed, and dated by the geologist preparing the report.(A) The geologic assessment must include a geologic map, at site-plan scale, illustrating:(i) the outcrop of surface geologic units; and(ii) all geologic and manmade features, specifically identifying:(I) caves;(II) sinkholes;(III) faults;(IV) permeable fractures;(V) solution zones;(VI) surface streams; and(VII) other sensitive features.(B) The geologic assessment must contain a stratigraphic column showing, at a minimum, formations, members, and thicknesses.(C) The geologic assessment must contain a description and evaluation of all geologic and manmade features, on forms provided by, or approved by, the executive director. The assessment must determine which of these features are sensitive features. The assessment must include:(i) the identification of each geologic or manmade feature, with a cross-reference to the site-plan map coordinates; and(ii) the type of geologic or manmade feature including, but not limited to:(I) sinkholes;(II) caves;(III) faults;(IV) wells;(V) surface streams; or(VI) potentially permeable fractures and solution zones.(D) The geologic assessment must contain a narrative assessment of site-specific geology. The assessment must detail the potential for fluid movement to the Edwards Aquifer and include a discussion of the stratigraphy, structure, and karstic characteristics of the site.(E) The geologic assessment must contain a narrative description of soil units and a soil profile, including thickness and hydrologic characteristics.(4) Technical report.(A) The technical report must address the following issues.(i) The report must describe the nature of the regulated activity (such as residential, commercial, industrial, or utility), including:(I) the size of the site in acres;(II) the projected population for the site;(III) the amount and type of impervious cover expected after construction is complete, such as paved surface or roofing;(IV) the amount of surface expected to be occupied by parking lots; and(V) other factors that could affect surface water and groundwater quality.(ii) The report must describe the volume and character of wastewater expected to be produced. Wastewater generated at a site should be characterized as either domestic or industrial, or if commingled, by approximate percentages of each type.(iii) The report must describe the volume and character of stormwater runoff expected to occur. Estimates of stormwater runoff quality and quantity should be based on area and type of impervious cover, as described in clause (i) of this subparagraph. An estimate of the runoff coefficient of the site for both the pre-construction and post-construction conditions should be included in the report.(iv) The report must describe any activities or processes which may be a potential source of contamination.(v) The report must describe the intended sequence of major activities which disturb soils for major portions of the site (e.g., grubbing, excavation, grading, utilities and infrastructure installation).(vi) The report must contain estimates of the total area of the site that is expected to be disturbed by excavation, grading, or other activities.(vii) The report must contain the name of the receiving water(s) at or near the site which will be disturbed or which will receive discharges from disturbed areas of the project.(B) The technical report must describe the temporary best management practices (BMPs) and measures that will be used during and after construction. The technical report must clearly describe for each major activity identified in subparagraph (A)(v) of this paragraph appropriate control measures and the general timing (or sequence) during the construction process that the measures will be implemented.(i) BMPs and measures must prevent pollution of surface water, groundwater, or storm water that originates upgradient from the site and flows across the site as provided under this paragraph.(ii) BMPs and measures must prevent pollution of surface water or groundwater that originates on-site or flows off site, including pollution caused by contaminated stormwater runoff from the site as provided under this paragraph.(iii) BMPs and measures must prevent pollutants from entering surface streams, sensitive features, or the aquifer as provided under this paragraph.(iv) To the maximum extent practicable, BMPs and measures must maintain flow to naturally- occurring sensitive features identified in either the geologic assessment, executive director review, or during excavation, blasting, or construction.(I) The temporary sealing of a naturally-occurring sensitive feature which accepts recharge to the Edwards Aquifer as a temporary pollution abatement measure during active construction should be avoided.(II) A request to temporarily seal must include a justification as to why no reasonable and practicable alternative exists. The request will be evaluated by the executive director on a case-by-case basis.(v) Temporary BMPs and measures must meet the requirements contained in subparagraph (D)(i) of this paragraph.(vi) The report must include a plan for the inspection of temporary BMPs and measures and for their timely maintenance, repair, and, if necessary, retrofit.(vii) Temporary sediment pond or basin construction plans and design calculations for a proposed temporary BMP or measure must be prepared by or under the direct supervision of a Texas licensed professional engineer. All construction plans and design information must be signed, sealed, and dated by the Texas licensed professional engineer.(viii) Pilot-scale field testing (including water quality monitoring) may be required for BMPs that are not contained in technical guidance recognized by, or prepared by, the executive director.(ix) The construction-phase BMPs for erosion and sediment controls should be designed to retain sediment on site to the extent practicable.(x) All control measures must be properly selected, installed, and maintained in accordance with the manufacturers specifications and good engineering practices. If periodic inspections by the applicant or the executive director, or other information indicates a control has been used inappropriately, or incorrectly, the applicant must replace or modify the control for site situations.(xi) If sediment escapes the construction site, off-site accumulations of sediment must be removed at a frequency sufficient to minimize off-site impacts to water quality (e.g., fugitive sediment in street being washed into surface streams or sensitive features by the next rain).(xii) Sediment must be removed from sediment traps or sedimentation ponds not later than when design capacity has been reduced by 50%.(xiii) Litter, construction debris, and construction chemicals exposed to storm water shall be prevented from becoming a pollutant source for storm water discharges (e.g., screening outfalls, picked up daily).(C) The technical report must describe the permanent BMPs and measures that will be used during and after construction is completed.(i) BMPs and measures must prevent pollution of surface water, groundwater, or storm water that originates upgradient from the site and flows across the site.(ii) BMPs and measures must prevent pollution of surface water or groundwater that originates on-site or flows off the site, including pollution caused by contaminated storm water runoff from the site.(iii) BMPs and measures must prevent pollutants from entering surface streams, sensitive features, or the aquifer.(iv) To the extent practicable, BMPs and measures must maintain flow to naturally occurring sensitive features identified in either the geologic assessment, executive director review, or during excavation, blasting, or construction.(I) The permanent sealing of, or diversion of, flow from a naturally occurring sensitive feature that accepts recharge to the Edwards Aquifer as a permanent pollution abatement measure should be avoided.(II) A request to seal a naturally occurring sensitive feature must include a justification as to why no reasonable and practicable alternative exists. The request will be evaluated by the executive director on a case-by-case basis.(v) Permanent BMPs and measures must meet the requirements contained in subparagraph (D)(ii) of this paragraph.(vi) Construction plans and design calculations for the proposed permanent BMPs and measures must be prepared by, or under the direct supervision of, a Texas licensed professional engineer. All construction plans and design information must be signed, sealed, and dated by the Texas licensed professional engineer.(vii) The technical report must include a plan for the inspection of the permanent BMPs and measures and for their timely inspection, maintenance, repair, and, if necessary, retrofit. The plan must be prepared and certified by the engineer designing the permanent BMPs and measures. The plan must be signed by the owner or responsible party.(viii) Pilot-scale field testing (including water quality monitoring) may be required for BMPs that are not contained in technical guidance recognized by, or prepared by, the executive director.(I) When pilot-scale field testing of an innovative technology (including water quality monitoring) is required, only one pilot site will be approved.(II) No additional approvals will be granted until the pilot study is complete and the applicant demonstrates adequate protection of the Edwards Aquifer.(III) If the innovative technology demonstrates adequate protection of the Edwards Aquifer, additional units may be approved for use as permanent pollution abatement measures on the Edwards Aquifer recharge zone.(IV) If the innovative technology demonstrates inadequate protection of the Edwards Aquifer, a retrofit of the pollution abatement measure may be required to achieve compliance with requirements under subparagraph (D) of this paragraph and no additional units will be approved for use on the Edwards Aquifer recharge zone.(D) Requirements for BMPs and measures.(i) Temporary BMPs.(I) The technical report must include a description of interim and permanent stabilization practices for the site, including a schedule of when the practices will be implemented. Stabilization practices may include, but are not limited to: establishment of temporary vegetation, establishment of permanent vegetation, mulching, geotextiles, sod stabilization, vegetative buffer strips, protection of trees, preservation of mature vegetation, and other appropriate measures.(-a-) The following records shall be maintained and made available to the executive director upon request: the dates when major grading activities occur; the dates when construction activities temporarily or permanently cease on a portion of the site; and the dates when stabilization measures are initiated.(-b-) Stabilization measures shall be initiated as soon as practicable in portions of the site where construction activities have temporarily or permanently ceased, but in no case more than 14 days after the construction activity in that portion of the site has temporarily or permanently ceased. Where the initiation of stabilization measures by the 14th day after construction activity temporary or permanently cease is precluded by weather conditions, stabilization measures shall be initiated as soon as practicable. Where construction activity on a portion of the site is temporarily ceased, and earth disturbing activities will be resumed within 21 days, temporary stabilization measures do not have to be initiated on that portion of site. In areas experiencing droughts where the initiation of stabilization measures by the 14th day after construction activity has temporarily or permanently ceased is precluded by seasonal arid conditions, stabilization measures shall be initiated as soon as practicable.(II) The technical report must include a description of structural practices to divert flows from exposed soils, store flows, or otherwise limit runoff and the discharge of pollutants from exposed areas of the site to the degree attainable. Structural practices may include, but are not limited to: silt fences, earth dikes, drainage swales, sediment traps, checks dams, subsurface drains, pipe slope drains, level spreaders, storm drain inlet protection, rock outlet protection, reinforced soil retaining systems, gabions, and sediment basins. Placement of structural practices in floodplains should be avoided to the degree attainable.(-a-) For common drainage locations that serve an area with ten or more acres disturbed at one time, a sediment basin that provides storage for a calculated volume of runoff from a two-year, 24-hour storm from each disturbed acre drained, or equivalent control measures, shall be provided where attainable until final stabilization of the site. Where no such calculation has been performed, a sediment basin providing 3,600 cubic feet of storage per acre drained, or equivalent control measures, shall be provided where attainable until final stabilization of the site. When computing the number of acres draining into a common location it is not necessary to include flows from off-site areas and flows from on-site areas that are either undisturbed or have undergone final stabilization where such flows are diverted around both the disturbed area and the sediment basin.(-b-) In determining whether installing a sediment basin is attainable, the applicant may consider factors such as site soils, slope, and available area on site. For drainage locations which serve ten or more disturbed acres at one time and where a sediment basin or equivalent controls is not attainable, smaller sediment basins and/or sediment traps should be used. Where neither the sediment basin nor equivalent controls are attainable due to site limitations, silt fences, vegetative buffer strips, or equivalent sediment controls are required for all down slope boundaries of the construction area and for those side slope boundaries deemed appropriate as dictated by individual site conditions. The executive director encourages the use of a combination of sediment and erosion control measures in order to achieve maximum pollutant removal.(-c-) For drainage locations serving less than ten acres, smaller sediment basins and/or sediment traps should be used. At a minimum, silt fences, vegetative buffer strips, or equivalent sediment controls are required for all down slope boundaries (and for those side slope boundaries deemed appropriate as dictated by individual site conditions) of the construction area unless a sediment basin providing storage for a calculated volume of runoff from a two-year, 24- hour storm or 3,600 cubic feet of storage per acre drained is provided. The executive director encourages the use of a combination of sediment and erosion control measures in order to achieve maximum pollutant removal.(ii) Permanent BMPs and measures.(I) BMPs and measures must be implemented to control the discharge of pollution from regulated activities after the completion of construction. These practices and measures must be designed, constructed, operated, and maintained to insure that 80% of the incremental increase in the annual mass loading of total suspended solids from the site caused by the regulated activity is removed. These quantities must be calculated in accordance with technical guidance prepared or accepted by the executive director.(II) Owners of permanent BMPs and measures must insure that the BMPs and measures are constructed and function as designed. A Texas licensed professional engineer must certify in writing that the permanent BMPs or measures were constructed as designed. The certification letter must be submitted to the appropriate regional office within 30 days of site completion.(III) Where a site is used for low density single-family residential development and has 20% or less impervious cover, other permanent BMPs are not required. This exemption from permanent BMPs must be recorded in the county deed records, with a notice that if the percent impervious cover increases above 20% or land use changes, the exemption for the whole site as described in the property boundaries required by §213.4(g) of this title, may no longer apply and the property owner must notify the appropriate regional office of these changes.(IV) The executive director may waive the requirement for other permanent BMPs for multi-family residential developments, schools, or small business sites where 20% or less impervious cover is used at the site. This exemption from permanent BMPs must be recorded in the county deed records, with a notice that if the percent impervious cover increases above 20% or land use changes, the exemption for the whole site as described in the property boundaries required by §213.4(g) of this title, may no longer apply and the property owner must notify the appropriate regional office of these changes.(E) The technical report must describe measures that will be used to avoid or minimize surface stream contamination and changes in the way in which water enters a stream as a result of the construction and development. The measures should address the following:(i) increased stream flashing;(ii) the creation of stronger flows and in-stream velocities; or(iii) other in-stream effects caused by the regulated activity which increase erosion that results in water quality degradation.(F) The technical report must describe the method of wastewater disposal from the site.(i) If wastewater is to be disposed of by conveyance to a sewage treatment plant for treatment and disposal, the existing or proposed treatment facility must be identified.(ii) If wastewater is to be disposed of by an on-site sewage facility, the application must include a written statement from the appropriate authorized agent, stating that the site is suitable for the use of private sewage facilities and will meet the special requirements for on-site sewage facilities located on the Edwards Aquifer recharge zone as specified under Chapter 285 of this title (relating to On-Site Sewage Facilities), or identifying those areas that are not suitable.(G) The technical report must describe the measures that will be used to contain any spill of hydrocarbons or hazardous substances such as on a roadway or from a pipeline or from temporary aboveground storage of 250 gallons or more.(i) Temporary storage facilities are those used on site for less than one year.(ii) Temporary aboveground storage tank systems of 250 gallons or more cumulative storage capacity must be located a minimum horizontal distance of 150 feet from any domestic, industrial, irrigation, or public water supply well, or other sensitive feature.(5) Responsibility for maintenance of permanent BMPs and measures after construction is complete.(A) The applicant shall be responsible for maintaining the permanent BMPs after construction until such time as the maintenance obligation is either assumed in writing by another entity having ownership or control of the property (such as without limitation, an owner's association, a new property owner or lessee, a district, or municipality) or the ownership of the property is transferred to the entity. Such entity shall then be responsible for maintenance until another entity assumes such obligations in writing or ownership is transferred.(B) A copy of the transfer of responsibility must be filed with the executive director at the appropriate regional office within 30 days of the transfer.(C) This paragraph applies to:(i) multiple single-family residential developments, multi-family residential; and(ii) non-residential developments such as commercial, industrial, institutional, schools, and other sites where regulated activities occur.(c) Organized sewage collection systems.(1) No person may commence rehabilitation or construction related to an existing or new organized sewage collection system on the recharge zone, until final design plans, specifications, and an engineering report, as specified in Chapter 317 of this title (relating to Design Criteria for Sewerage Systems) and appropriate special requirements of this section, have been filed with and approved by the executive director.(2) General design of sewage collection systems. Design of new sewage collection systems on the recharge zone must comply with Chapter 317 of this title.(3) Special requirements for sewage collection systems. In addition to the requirements in paragraph (2) of this subsection, sewage collection systems on the recharge zone must meet the following special requirements.(A) Manhole rehabilitation or construction. All manholes rehabilitated or constructed after March 21, 1990, must be watertight, with watertight rings and covers and must be constructed and tested to meet the requirements of §317.2(c)(5)(H) of this title (relating to Sewage Collection System).(B) Piping for gravity and pressurized collection systems. Compliance with the following is required, unless local regulations dictate more stringent standards:(i) for gravity collection systems, all PVC pipe must have a Standard Dimension Ratio (SDR) of 35 or less and meet the requirements of §317.2(a) - (c)(4) of this title; and(ii) for all pressurized sewer systems, all PVC pipe must have a minimum working pressure rating of 150 pounds per square inch and meet the requirements of §317.2(d)(2) - (4) and §317.3(d)(5) - (7) of this title (relating to Sewage Collection System and Lift Stations).(C) Lift station design. Lift stations must be designed and constructed to ensure that bypassing of any sewage does not occur. All lift stations must be designed to meet the requirements of §317.2(d) and §317.3 of this title. A lift station application must include final construction plans and a design report prepared by or under the direct supervision of a Texas licensed professional engineer. All design information must be signed, sealed, and dated by a Texas licensed professional engineer.(D) Certification of new sewage collection system lines by a Texas licensed professional engineer. Owners of sewage collection systems must insure that all new gravity sewer system lines having a diameter greater than or equal to six inches and all new force mains are tested for leakage following construction. Such lines must be certified by a Texas licensed professional engineer to meet the appropriate requirements of §317.2 of this title. The engineer must retain copies of all test results which must be made available to the executive director upon request. The engineer must certify in writing that all wastewater lines have passed all required testing to the appropriate regional office within 30 days of test completion and prior to use of the new collection system. Following the completion of the new sewer lines and manholes, they must be tested every five years thereafter in accordance with subparagraph (E) of this paragraph.(E) Testing of existing sewer lines. Owners of sewage collection systems must insure that all existing sewer lines having a diameter greater than or equal to six inches, including private service laterals, manholes, and connections, are tested to determine types and locations of structural damage and defects such as offsets, open joints, or cracked or crushed lines that would allow exfiltration to occur. Existing manholes and lift station wet wells must be tested using methods for new structures which are approved by the executive director.(i) Testing of all sewage collection systems must be conducted every five years after being put into use. Any sewage collection system in place as of March 21, 1990 must have commenced and completed the first round of five-year testing. Every five years, existing sewage collection systems must be tested to determine types and locations of structural damage and defects such as offsets, open joints, or cracked or crushed lines that would allow exfiltration to occur. These test results must be certified by a Texas licensed professional engineer. The test results must be retained by the plan holder for five years and made available to the executive director upon request. The use of one of the following methods will satisfy the requirements for the five-year testing of existing sewer lines.(I) In-place deflection testing must meet the requirements of §317.2(a)(4)(C) of this title. No pipe shall exceed a deflection rate of 5.0%.(II) Internal line inspections, using a color television camera to verify that the lines are free of structural damage such as offsets, open joints, or cracked or crushed lines, that would allow exfiltration to occur, are acceptable. The use of black and white television equipment may be used following demonstration to the executive director that an acceptable inspection can be performed as provided in subclause (IV) of this clause.(III) In-line smoke testing is acceptable only for the testing of private service laterals.(IV) Testing methods other than those listed in this subsection must be approved by the executive director prior to initiating the sewer line testing.(ii) Except as otherwise provided in an enforcement order of the commission, as soon as possible, but at least within one year of detecting defects, repairs to the sewage collection system must be completed by the system's owner. However, all leakage must be immediately contained to prevent any discharge to water in the state or pollution of the Edwards Aquifer whether necessary repairs have been completed or not. Leakage is a violation of Texas Water Code, §26.121 and these rules are not intended to excuse such unlawful discharge of waste into or adjacent to water in the state. All repairs must be certified by a Texas licensed professional engineer. Repairs must be tested within 45 days of completion using the methods described in clause (i) of this subparagraph. Results must be submitted to the appropriate regional office within 30 days of testing.(F) Blasting for sewer line excavation. Blasting for sewer line excavation must be done in accordance with appropriate criteria established by the National Fire Protection Association. Should such blasting result in damage to an existing or newly completed sewer line or any of its appurtenances, the owner of the sewer system and appurtenances must repair and retest the damaged sewer line and its appurtenances immediately. The use of sand for pipe embedment or backfill in blasted rock is prohibited.(G) Sewer line stub outs. New collection system lines must be constructed with stub outs for the connection of anticipated extensions. The location of such stub outs must be marked on the ground such that their location can be easily determined at the time of connection of the proposed extensions. All stub outs must be sealed with a manufactured cap to prevent leakage. Extensions that were not anticipated at the time of original construction or that are to be connected to an existing sewer line not furnished with stub outs must be connected using a manufactured saddle in accordance with accepted plumbing techniques.(i) Main line stub outs. Manholes must be placed at the end of all sewer lines that will be extended at a future date, as specified in §317.2(c)(5) of this title. If the main line is to be extended within one year, a variance to allow the use of a stub out until the line is extended will be considered on a case-by-case basis. At the time of original construction, new stub outs must be constructed sufficiently to extend beyond the end of the street pavement. Stub outs that were not anticipated at the time of original construction must enter the manhole using a bored or drilled hole. Chiseling or hammering to enter a manhole is prohibited.(ii) Private service lateral stub outs. Such stub outs must be manufactured using wyes or tees that are compatible in size and material with both the sewer line and the extension. Private service lateral stub outs that were not anticipated at the time of original construction must be connected using a manufactured saddle in accordance with accepted plumbing techniques.(H) Locating sewer lines within a five-year floodplain. Sewer lines may not be located within the five-year floodplain of a drainageway, unless an exemption is granted by the executive director. If the applicant demonstrates to the executive director that such location is unavoidable, and the area is subject to inundation and stream velocities which could cause erosion and scouring of backfill, the trench must be capped with concrete to prevent scouring of backfill, or the sewer lines must be encased in concrete. All concrete must have a minimum thickness of six inches.(I) Inspection of private service lateral connections. After installing and prior to covering and connecting a private service lateral to an organized sewage collection system, a Texas licensed professional engineer, Texas registered sanitarian, or appropriate city inspector must inspect the private service lateral and the connection to the collection system and certify that construction conforms with the applicable provisions of this subsection and local plumbing codes. Private service laterals may only be connected to approved sewage collection systems.(J) Embedment materials. Embedment materials must meet the specification for bedding contained in §317.2(a)(5) of this title.(K) Sewer lines bridging caverns or other sensitive features. Sewer lines that bridge caverns or sensitive features must be constructed in a manner that will maintain the structural integrity of the line. When such geologic features are encountered during construction, the location and extent of those features must be assessed by a geologist and must be reported to the appropriate regional office in writing within two working days of discovery. Notification and inspection must comply with the requirements under subsection (f) of this section.(L) Erosion and sedimentation control. A temporary erosion and sedimentation control plan must be included with all construction plans. All temporary erosion and sedimentation controls must be installed prior to construction, must be maintained during construction, and must be removed when sufficient vegetation is established to control the erosion and sedimentation and the construction area is stabilized.(M) Alternative sewage collection systems. The executive director may approve an alternative procedure which is technically justified; signed, sealed, and dated by a Texas licensed professional engineer indicating equivalent environmental protection; and which complies with the requirements of §317.2(d) of this title.(N) Required corrective action. Notwithstanding compliance with the requirements of subparagraphs (A) - (M) of this paragraph, sewage collection systems must operate in a manner that will not cause pollution of the Edwards Aquifer. Any failure must be corrected in a manner satisfactory to the executive director.(4) Contents of organized sewage collection system plan.(A) Application. For organized sewage collection systems, the information required under §213.4 of this title must be filed with the executive director at the appropriate regional office.(B) Narrative description of proposed organized sewage collection system. A narrative report must include, at a minimum, a geographic description and anticipated type of development within the sewage collection system service area.(C) Geologic assessment. A geologic assessment, as described in subsection (b)(3) of this section, must be performed by a geologist along the path of the proposed sewer line(s), plus 50 feet on each side of the proposed sewer line(s). The geologic assessment report must be signed, sealed, and dated by the geologist preparing the report.(D) Technical report. For an organized sewage collection system, a technical report must be submitted on forms provided by, or approved by, the executive director. The technical report must contain the information requested in the following subsections of this section: (b)(4)(A)(ii) and (iv), (B), (D)(i), (F)(i), and (G). A technical report for a water pollution abatement plan submitted under subsection (b) of this section satisfies this requirement, provided it properly addresses the proposed sewage collection system.(E) Plans and specifications. Plans and specifications addressing all the requirements in paragraphs (2) and (3) of this subsection, must include at a minimum:(i) a map showing the location of the organized sewage collection system layout in relation to recharge zone boundaries;(ii) a map showing the location of the organized sewage collection system layout overlaid by topographic contour lines, using a contour interval of not greater than ten feet, and showing the area within both the five-year floodplain and the 100-year floodplain of any drainage way;(iii) construction documents prepared by, or under the supervision of, a Texas licensed professional engineer, which have also been signed, sealed, and dated by that Texas licensed professional engineer, at a minimum, must include:(I) plan and profile views of the collection system;(II) construction details of collection system components;(III) specifications for all collection system components; and(IV) proposed pollution abatement measures for sensitive features identified along the path of the proposed sewer line.(d) Static hydrocarbon and hazardous substance storage in underground storage tanks system.(1) Standards for underground storage tank systems. New or replacement systems for the underground storage of static hydrocarbons or hazardous substances must be of double-walled or an equivalent method approved by the executive director. Methods for detecting leaks in the inside wall of a double-walled system must be included in the facility's design and construction. The leak detection system must provide continuous monitoring of the system and must be capable of immediately alerting the system's owner of possible leakages.(A) Installation. All underground hydrocarbon and hazardous substance storage tank systems must be installed by a person possessing a valid certificate of registration in accordance with the requirements of Chapter 334, Subchapter I of this title (relating to Underground Storage Tank On-Site Supervisor Licensing and Contractor Registration).(B) Siting. Any new underground hydrocarbon and hazardous substance storage tank system that does not incorporate a method for tertiary containment must be located a minimum horizontal distance of 150 feet from any domestic, industrial, or irrigation well, or other sensitive feature as determined under the geologic assessment at the time of construction or replacement under paragraph (2)(C) of this subsection or the tankhold inspection under subsection (f)(2)(B) of this section. This method of tertiary containment also applies to the placement of a tank system within 150 feet of a public water supply well without a sanitary control easement of 150 feet as defined in §290.41(c)(1)(F) of this title (relating to Water Sources).(2) Contents of an underground storage tank facility plan. An underground storage tank facility plan must, at a minimum, contain the following information.(A) Application. The information required under §213.4 of this title must be filed with the executive director at the appropriate regional office.(B) Site location map. A site location map as specified in subsection (b)(2) of this section including a legible road map, a general location map, and a site plan, must be submitted as part of the plan.(C) Geologic assessment. For all facilities located on either the recharge zone or transition zone, a geologic assessment prepared by a geologist, as described in subsection (b)(3) of this section, must be submitted for the site. The geologic assessment report must be signed, sealed, and dated by the geologist preparing the report.(D) Technical report. For all facilities, located on either the recharge zone or transition zone, a technical report must be submitted on forms provided by, or approved by, the executive director. The technical report must contain the information requested in subsection (b)(4)(B) and (C) and (5) of this section. A technical report for a water pollution abatement plan submitted under subsection (b) of this section satisfies this requirement, provided it properly addresses the proposed underground storage tank facility.(e) Static hydrocarbon and hazardous substance storage in an aboveground storage tank facility.(1) Design standards. Systems used for the temporary and permanent aboveground storage of static hydrocarbon and hazardous substance must be constructed within controlled drainage areas that are sized to capture one and one-half (1-1/2) times the storage capacity of the system. The controlled drainage area must be constructed of, and in a material impervious to, the substance(s) being stored, and must direct spills to a convenient point for collections and recovery. Any spills from storage tank facilities must be removed from the controlled drainage area for disposal within 24 hours of the spill.(2) Contents of an aboveground storage tank facility plan. A permanent aboveground storage tank facility plan must contain, at a minimum, the following information.(A) Application. For an aboveground storage tank facility, the information required under §213.4 of this title must be filed with the executive director at the appropriate regional office.(B) Site location map. A site location map as specified in subsection (b)(2) of this section, including a legible road map, a general location map, and a site plan, must be submitted as part of the plan for a permanent facility.(C) Geologic assessment. For all facilities located on either the recharge zone or transition zone, a geologic assessment prepared by a geologist, as described in subsection (b)(3) of this section, must be submitted for the area containing the aboveground storage tank system. The geologic assessment report must be signed, sealed, and dated by the geologist preparing the report.(D) Technical report. For all facilities located on either the recharge zone or transition zone, a technical report must be submitted on forms provided by, or approved by, the executive director. The technical report must contain the information requested in subsection (b)(4)(B) and (C) and (5) of this section. A technical report for a water pollution abatement plan submitted under subsection (b) of this section satisfies this requirement, provided it properly addresses the proposed aboveground storage tank facility.(3) A description of measures that will be used to contain any spill of hydrocarbons or hazardous substances from temporary storage of 250 gallons or more must be included with the plan unless described under subsection (b)(4)(G) of this section. Any new temporary aboveground hydrocarbon and hazardous substance storage tank system must be located a minimum horizontal distance of 150 feet from any domestic, industrial, irrigation, or public water supply well, or other sensitive feature.(4) Exemptions from this section.(A) Equipment used to transmit electricity that utilizes oil for insulation or cooling purposes, including transformers and oil circuit breakers, are exempt from this subsection. Construction of supporting structures is a regulated activity for which a water pollution abatement plan under subsection (a)(1) of this section is required.(B) Permanent storage facilities with a cumulative storage capacity of less than 500 gallons are exempt from this section.(f) Notification and inspection.(1) The applicant must provide written notification of intent to commence construction, replacement, or rehabilitation. Notification must be given to the appropriate regional office no later than 48 hours prior to commencement of the regulated activity.(A) Written notification must include:(i) the date on which the regulated activity will commence;(ii) the name of the approved plan for the regulated activity; and(iii) the name of the prime contractor and the name and telephone number of the contact person.(B) The executive director will use the notification to determine if the applicant is eligible for an extension of an approved plan. Construction will not be considered to have commenced until written notification is received by the appropriate regional office.(2) If any sensitive feature is discovered during construction, replacement, or rehabilitation, all regulated activities near the sensitive feature must be suspended immediately.(A) The holder of an approved Edwards Aquifer protection plan must immediately notify the appropriate regional office of any sensitive features encountered during construction. This notice must be given before continuing construction.(B) Regulated activities near the sensitive feature may not proceed until the executive director has reviewed a geologic assessment report prepared by a geologist that consists of information required under subsection (b)(3)(C) and (D) of this section for the sensitive feature and has reviewed and approved the methods proposed to protect the sensitive feature and the Edwards Aquifer from potentially adverse impacts to water quality. The geologic assessment report must be signed, sealed, and dated by the geologist preparing the report.(C) The holder of an approved sewage collection system plan, must meet the following.(i) Upon completion of any lift station excavation, a geologist must certify that the excavation has been inspected for the presence of sensitive features. The certification must be signed, sealed, and dated by the geologist preparing the certification. Certification that the excavation has been inspected must be submitted to the appropriate regional office.(I) Further activities may not proceed until the executive director has reviewed and approved the methods proposed to protect any sensitive feature and the Edwards Aquifer from potentially adverse impacts to water quality from the lift station.(II) Construction may continue if the geologist certifies that no sensitive feature or features were present.(ii) The applicant must submit a plan for ensuring the structural integrity of the sewer line or for modifying the proposed collection system alignment around the feature. The plan must be certified by a Texas licensed professional engineer. These plans must be submitted to the appropriate regional office for review and approval.(D) For an approved underground storage tank facility plan, a geologist must certify that a completed tankhold excavation has been inspected for the presence of sensitive features. The certification must be signed, sealed, and dated by the geologist preparing the certification.(i) Certification that the tankhold excavation has been inspected must be submitted to the appropriate regional office.(ii) If a sensitive feature is discovered, the applicant must propose methods to protect the feature and the Edwards Aquifer from potentially adverse impacts to water quality from the underground storage tank system. Installation activities may not proceed until the executive director has reviewed and approved the proposed methods. The protection methods must be consistent with subsection (d)(1)(B) of this section.(iii) Construction may continue if the geologist certifies that no sensitive feature or features were present.(3) The executive director must review methods or plans proposed to protect sensitive features and the Edwards Aquifer from potentially adverse impacts to water quality. This review will be completed within one week of receiving a method or plan. Regulated activities near the sensitive feature may not continue until the executive director has approved the proposed methods or plans.(g) On-site sewerage systems. On-site sewerage systems located on the recharge zone are subject to §285.40 of this title (relating to OSSFs on the Recharge Zone of the Edwards Aquifer) and other applicable provisions contained in Chapter 285 of this title. Systems must be designed, installed, maintained, repaired, and replaced in accordance with Chapter 285 of this title.(h) Exemption.(1) Regulated activities exempt from the Edwards Aquifer protection plan application requirements under this section are:(A) the installation of natural gas lines;(B) the installation of telephone lines;(C) the installation of electric lines;(D) the installation of water lines;(E) the installation of other utility lines which are not designed to carry and will not carry the following:(i) pollutants;(ii) storm water runoff;(iii) sewage effluent; or(iv) treated effluent from a wastewater treatment facility.(2) An individual land owner who seeks to construct his/her own single-family residence or associated residential structures on the site is exempt from the Edwards Aquifer protection plan application requirements under this section, provided that he/she does not exceed 20% impervious cover on the site.(3) Temporary erosion and sedimentation controls are required to be installed and maintained for exempted activities on the recharge zone.(4) All temporary erosion and sedimentation controls:(A) must meet the requirements contained in subsection (b)(4)(D)(i) of this section;(B) must be installed prior to construction;(C) must be maintained during construction; and(D) may be removed only when vegetation is established and the construction area is stabilized.(5) The executive director may monitor storm water discharges from these projects to evaluate the adequacy of the temporary erosion and sedimentation control measures. Additional protection will be required if the executive director determines that these controls are inadequate to protect water quality.</content><note type="source"><p>Source Note: The provisions of this §213.5 adopted to be effective December 27, 1996, 21 TexReg 12125; amended to be effective June 1, 1999, 23 TexReg 10477; amended to be effective September 1, 2003, 28 TexReg 6291.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scA/s213.6"><num value="213.6">§213.6</num><heading>Wastewater Treatment and Disposal Systems</heading><content>(a) General.(1) New industrial and municipal wastewater discharges into or adjacent to water in the state that would create additional pollutant loading are prohibited on the recharge zone.(2) Increases in existing discharges into or adjacent to water in the state that would increase or add new pollutant loading are prohibited on the recharge zone.(3) Existing permits may be renewed for the same discharge volumes and with the same conditions and authorizations specified in the permit. Permits will not be renewed if the facility becomes non-compliant, as defined in Chapter 70 of this title.(4) New land application wastewater treatment plants located on the recharge zone must be designed, constructed, and operated such that there are no bypasses of the treatment facilities or any discharges of untreated or partially treated wastewater.(5) Design of wastewater treatment plants must be in accordance with Chapter 317 of this title.(b) Land application systems.(1) Except for licensed private sewage facilities, land application systems that rely on percolation for wastewater disposal are prohibited on the recharge zone.(2) Wastewater disposal systems for disposal of wastewater on the recharge zone utilizing land application methods, such as evaporation or irrigation, will be considered on a case-by-case basis. At a minimum, those systems must attain secondary treatment as defined in Chapter 309 of this title (relating to Effluent Limitations).(3) Existing permits may be renewed for the same discharge volumes and with the same conditions and authorizations specified in the permit unless the facility becomes non-compliant, as defined in Chapter 70 of this title.(c) Discharge upstream from the recharge zone.(1) All new or increased discharges of treated wastewater into or adjacent to water in the state, other than industrial wastewater discharges, within zero to five miles upstream from the recharge zone, at a minimum, shall achieve the following level of effluent treatment:(A) five milligrams per liter of carbonaceous biochemical oxygen demand, based on a 30-day average;(B) five milligrams per liter of total suspended solids, based on a 30-day average;(C) two milligrams per liter of ammonia nitrogen, based on a 30-day average; and(D) one milligram per liter of phosphorus, based on a 30-day average.(2) All new or increased discharges into or adjacent to water in the state, other than industrial wastewater discharges, more than five miles but within ten miles upstream from the recharge zone and any other discharges that the agency determines may affect the Edwards Aquifer, at a minimum, must achieve the level of effluent treatment for 2N based on a 30-day average as set out in Table 1 of Chapter 309 of this title. More stringent treatment or more frequent monitoring may be required on a case-by-case basis.(3) All discharges, other than industrial wastewater discharges, more than five miles upstream from the recharge zone which enter the main stem or a tributary of Segment 1428 of the Colorado River, or Segment 1427, main stem Onion Creek, or a tributary of Onion Creek must comply with §311.43 of this title (relating to Effluent Requirements for All Tributaries of Segment 1428 of the Colorado River and Segment 1427, Onion Creek, and Its Tributaries, of the Colorado River Basin), and to §311.44 of this title (relating to Disinfection). More stringent treatment or more frequent monitoring may be required on a case-by-case basis.(4) Any existing permitted industrial wastewater discharges within zero to ten miles upstream of the recharge zone must, at all times, discharge effluent in accordance with permitted limits. Any application for new industrial wastewater discharge permits for facilities zero to ten miles upstream of the recharge zone will be considered on a case-by-case basis, in accordance with appropriate discharge limits applicable to that industrial activity and with consideration of its proximity to the recharge zone.</content><note type="source"><p>Source Note: The provisions of this §213.6 adopted to be effective December 27, 1996, 21 TexReg 12125; amended to be effective June 1, 1999, 23 TexReg 10477.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scA/s213.7"><num value="213.7">§213.7</num><heading>Plugging of Abandoned Wells and Borings</heading><content>(a) All identified abandoned water wells, including injection, dewatering, and monitoring wells must be plugged pursuant to requirements of the Texas Department of Licensing and Regulation under 16 TAC Chapter 76 (Licensing and Regulation of Water Well Drillers and Water Well Pump Installers) and all other locally applicable rules, as appropriate.(b) Abandoned injection wells must be closed under the requirements of Chapter 331 of this title (relating to Underground Injection Control).(c) All borings with depths greater than or equal to 20 feet must be plugged with a non-shrink grout from the bottom of the hole to within three feet of the surface. The remainder of the hole must be backfilled with cuttings from the boring or gravel. All borings less than 20 feet must be backfilled with cuttings from the boring or gravel. All borings must be backfilled or plugged within four days of completion of the drilling operation. Voids may be filled with gravel.</content><note type="source"><p>Source Note: The provisions of this §213.7 adopted to be effective December 27, 1996, 21 TexReg 12125; amended to be effective June 1, 1999, 23 TexReg 10477.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scA/s213.8"><num value="213.8">§213.8</num><heading>Prohibited Activities</heading><content>(a) Recharge zone. The following activities are prohibited on the recharge zone:(1) waste disposal wells regulated under Chapter 331 of this title (relating to Underground Injection Control);(2) new feedlot/concentrated animal feeding operations regulated under Chapter 321 of this title (relating to Control of Certain Activities by Rule);(3) land disposal of Class I wastes, as defined in §335.1 of this title (relating to Definitions);(4) the use of a sewage holding tank as part of an organized sewage collection systems (lift stations approved by the executive director are not prohibited);(5) new municipal solid waste landfill facilities required to meet and comply with Type I standards which are defined in §330.41(b), (c), and (d) of this title (relating to Types of Municipal Solid Waste Facilities); and(6) new municipal and industrial wastewater discharges into or adjacent to water in the state that would create additional pollutant loading.(b) Transition zone. The following activities are prohibited on the transition zone:(1) waste disposal wells regulated under Chapter 331 of this title;(2) land disposal of Class I wastes, as defined in §335.1 of this title; and(3) new municipal solid waste landfill facilities required to meet and comply with Type I standards which are defined in §330.41(b), (c), and (d) of this title.(c) Additional prohibitions. For applications submitted on or after September 1, 2001, injection wells that transect or terminate in the Edwards Aquifer, as defined in §331.19 of this title (relating to Injection Into or Through the Edwards Aquifer), are prohibited except as provided by §331.19 of this title.</content><note type="source"><p>Source Note: The provisions of this §213.8 adopted to be effective December 27, 1996, 21 TexReg 12125; amended to be effective June 1, 1999, 23 TexReg 10477; amended to be effective November 3, 2002, 27 TexReg 10031.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scA/s213.9"><num value="213.9">§213.9</num><heading>Exceptions</heading><content>(a) Granting of exceptions. Exceptions to any substantive provision of this chapter related to the protection of water quality may be granted by the executive director if the requestor can demonstrate equivalent water quality protection for the Edwards Aquifer. No exception will be granted for a prohibited activity. Prior approval under this section must be obtained from the executive director for the exception to be authorized.(b) Procedure for requesting an exception. A person requesting an exception to the provisions of this chapter relating to the protection of water quality must file an original and three copies of a written request with the executive director at the appropriate regional office stating in detail:(1) the name, address, and telephone numbers of the requestor;(2) site and project name and location;(3) the nature of the exception requested;(4) the justification for granting the exception as described in subsection (a) of this section; and(5) any other pertinent information that the executive director requests.(c) Fees related to requests for exceptions. A person submitting an application for an exception, as described in this section, must pay $500 for each exception request. The fee is due and payable at the time the exception request is filed, and should be submitted as described in §213.12 of this title (relating to Application Fees). If the exception request fee is not submitted in the correct amount, the executive director is not required to consider the exception request until the correct fee is submitted.</content><note type="source"><p>Source Note: The provisions of this §213.9 adopted to be effective December 27, 1996, 21 TexReg 12125; amended to be effective June 1, 1999, 23 TexReg 10477; amended to be effective April 24, 2008, 33 TexReg 3296.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scA/s213.10"><num value="213.10">§213.10</num><heading>Enforcement</heading><content>Liability for penalties may result and may subject a noncompliant person to enforcement proceedings initiated by the executive director if there is failure to comply with:(1) any provision of this chapter;(2) an approved or conditionally approved Edwards Aquifer protection plan; or(3) any applicable regulation or order of the commission issued pursuant to this chapter and in accordance with Chapter 26 and other relevant provisions of the Texas Water Code or Texas Health and Safety Code.</content><note type="source"><p>Source Note: The provisions of this §213.10 adopted to be effective December 27, 1996, 21 TexReg 12125; amended to be effective June 1, 1999, 23 TexReg 10477.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scA/s213.11"><num value="213.11">§213.11</num><heading>Groundwater Conservation Districts</heading><content>The commission recognizes the authorities, powers, and duties of special-purpose districts, created by the Texas Legislature or by the commission under Chapter 36 of the Texas Water Code, as groundwater conservation districts to conserve, prevent waste, and protect the quality of ground water. In order to foster cooperation with local governments, the commission encourages districts to assist it in the administration of this chapter by carrying out the following functions within the areal extent of their geographic jurisdiction which includes the recharge zone or transition zone:(1) cooperating with licensing authorities in carrying out the provisions of this chapter;(2) conducting such geologic investigations as are necessary to provide updated information to the executive director regarding the official maps of the recharge zone and transition zone;(3) monitoring the quality of water in the Edwards Aquifer; and(4) maintaining maps of regulated activities on the recharge or transition zone.</content><note type="source"><p>Source Note: The provisions of this §213.11 adopted to be effective December 27, 1996, 21 TexReg 12125.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scA/s213.12"><num value="213.12">§213.12</num><heading>Application Fees</heading><content>The person submitting an application for approval or modification of any plan under this chapter must pay an application fee in the amount set forth in §213.14 of this title (relating to Fee Schedule). The fee is due and payable at the time the application is filed. The fee must be sent to the appropriate regional office or the cashier in the agency headquarters located in Austin, accompanied by an Edwards Aquifer Fee Application Form, provided by the executive director. Application fees must be paid by check or money order, payable to the "Texas Commission on Environmental Quality." If the application fee is not submitted in the correct amount, the executive director is not required to consider the application until the correct fee is submitted.</content><note type="source"><p>Source Note: The provisions of this §213.12 adopted to be effective December 27, 1996, 21 TexReg 12125; amended to be effective September 1, 2005, 30 TexReg 4984.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scA/s213.13"><num value="213.13">§213.13</num><heading>Fees Related to Requests for Extensions</heading><content>The person submitting an application for an extension of an approval of any plan under this chapter must pay $150 for each extension request. The fee is due and payable at the time the extension request is filed, and should be submitted as described in §213.12 of this title (relating to Application Fees). If the extension fee is not submitted in the correct amount, the executive director is not required to consider the extension request until the correct fee is submitted. The extension request must be submitted to the appropriate regional office and must include a copy of the Edwards Aquifer protection plan and approval letter that is the subject of the extension request.</content><note type="source"><p>Source Note: The provisions of this §213.13 adopted to be effective December 27, 1996, 21 TexReg 12125; amended to be effective April 24, 2008, 33 TexReg 3296.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scA/s213.14"><num value="213.14">§213.14</num><heading>Fee Schedule</heading><content>(a) Water Pollution Abatement Plans. For water pollution abatement plans and modifications to those plans, the application fee shall be based on the classification and total acreage of the site where regulated activities will occur as specified in Table 1 of this subsection.Attached Graphic(b) Organized sewage collection systems. For sewage collection system plans and modifications, the application fee shall be based on the total number of linear feet of all lines for which approval is sought. The fee shall be $.50 per linear foot, with a minimum fee of $650 and a maximum fee of $6,500. (c) Underground and aboveground storage tank facilities. For underground or permanent aboveground storage tank system facility plans and modifications, the application fee shall be based on the number of tanks or piping systems for which approval is sought. The fee shall be $650 per tank or piping system, with a minimum fee of $650 and a maximum fee of $6,500.</content><note type="source"><p>Source Note: The provisions of this §213.14 adopted to be effective December 27, 1996, 21 TexReg 12125; amended to be effective November 14, 1997, 22 TexReg 10738; amended to be effective April 24, 2008, 33 TexReg 3296.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c213/scB"><num value="B">SUBCHAPTER B</num><heading>CONTRIBUTING ZONE TO THE EDWARDS AQUIFER IN MEDINA, BEXAR, COMAL, KINNEY, UVALDE, HAYS, TRAVIS, AND WILLIAMSON COUNTIES</heading><section identifier="/us/state/tx/tac/t30/p1/c213/scB/s213.20"><num value="213.20">§213.20</num><heading>Purpose</heading><content>(a) The purpose of this subchapter is to regulate activities in the contributing zone to the Edwards Aquifer having the potential for polluting surface streams which recharge the Edwards Aquifer and to protect existing and potential beneficial uses of groundwater in the Edwards Aquifer.(b) Nothing in this subchapter is intended to restrict the powers of the commission or any other governmental entity to prevent, correct, or curtail activities in the contributing zone that result or may result in pollution of the Edwards Aquifer or hydrologically connected surface waters. This subchapter is not exclusive and other rules also apply. In addition to the rules of the commission, the Texas general and individual permits for storm water discharges from construction activities and local ordinances and regulations providing for the protection of water quality may also apply to activities in the contributing zone.(c) The executive director must review and act on contributing zone plans subject to this subchapter. The applicant or a person affected may file with the chief clerk a motion to overturn, under §50.139(a), (b), and (d) - (g) of this title (relating to Motion to Overturn Executive Director's Decision), of the executive director's final action on a contributing zone plan or modification to a plan.</content><note type="source"><p>Source Note: The provisions of this §213.20 adopted to be effective June 1, 1999, 23 TexReg 10489; amended to be effective September 1, 2005, 30 TexReg 4984.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scB/s213.21"><num value="213.21">§213.21</num><heading>Applicability and Person or Entity Required to Apply</heading><content>(a) This subchapter applies only to the contributing zone as defined in §213.22 of this title (relating to Definitions) of the Edwards Aquifer. This subchapter is not intended to be applied to any other contributing zones for any other aquifers in the State of Texas.(b) This subchapter applies only to regulated activities disturbing at least five acres, or regulated activities disturbing less than five acres which are part of a larger common plan of development or sale with the potential to disturb cumulatively five or more acres.(c) Areas identified as contributing zone within the transition zone described by §213.22 of this title and delineated on the official recharge and transition zone maps of the agency as provided by §213.3 of this title (relating to Definitions), are subject to both the requirements of this subchapter governing the contributing zone and to the provisions of the recharge zone in §213.5(a)(3) and (4), (c)(3)(K), and (d) - (f) of this title (relating to Required Edwards Aquifer Protection Plans, Notification, and Exemptions); §213.6(a) and (b) of this title (relating to Wastewater Treatment and Disposal Systems); §213.7 of this title (relating to Plugging of Abandoned Wells and Borings); and to the transition zone provisions of §213.8(b) of this title (relating to Prohibited Activities).(d) Unless otherwise provided under this subchapter, executive director approval of a contributing zone plan must be obtained prior to beginning construction of a new or additional regulated activity.(e) Regulated activities are allowed to be conducted under this subchapter only by applicants who have a letter of contributing zone plan approval issued by the executive director. This letter is issued under §213.23 of this title (relating to Plan Processing and Approval).(f) Applicable regulation for projects in progress when contributing zone or contributing zone within the transition zone designations are revised.(1) For areas designated as contributing zone or contributing zone within the transition zone on official maps prior to the effective date of this subsection, and for which this designation did not change on the effective date of this subsection, all plans submitted to the executive director, on or after the effective date of this section, will be reviewed under all the provisions of this subchapter in effect on the date the plan is submitted.(2) For areas that were newly designated as contributing zone or contributing zone within the transition zone on official maps on the effective date of this subsection, regulated activities will be considered to have commenced construction and will be regulated under the provisions of this chapter that were in effect at the time the plan was approved by the executive director if, on the effective date, all federal, state, and local approvals or permits required to begin physical construction have been obtained, and if either on-site construction directly related to the development has begun or construction commences within six months of the effective date of this section.(3) The effective date of this subsection is September 1, 2005.(g) Assumption of program by local government.(1) A local governmental entity may assume the rights, duties, and responsibilities to review and either approve or deny contributing zone protection plan applications within its boundaries and monitor and enforce compliance with plans if the local government obtains certification from the executive director.(2) In order to obtain certification, the local government must demonstrate:(A) it has a water quality protection program equal to or more stringent than the rules contained in this subchapter, including, but not limited to, a program that:(i) regulates activities covered under this chapter; and(ii) has performance standards equal to or more protective of water quality;(B) it has adopted ordinances or has other enforceable means sufficient to enforce the program throughout the local governmental entities jurisdiction; and(C) it has adequate resources to implement and enforce the program.(3) Upon approval of a request for certification under this subsection, the executive director shall enter into an agreement with the local governmental entity to provide for the terms and conditions of program assumption, including executive director oversight. Nothing in a certification or agreement shall affect the commission's ability to enforce its water quality protection rules or applicable state law.(4) An agreement under paragraph (3) of this subsection shall not provide for the payment of fees required by this chapter to the local entity, and shall not provide for partial assumption of the program unless expressly authorized by the commission. Fees shall be paid to the commission.(5) Certification must be for a term not to exceed five years, subject to renewal.(6) Upon written notice, certification may be revoked or suspended by the executive director if the local entity does not meet the terms and conditions of the agreement provided under paragraph (4) of this subsection or fails to meet the criteria for certification provided under paragraph (2) of this subsection.(7) A decision by the executive director under this subsection is not subject to appeal to the commission.</content><note type="source"><p>Source Note: The provisions of this §213.21 adopted to be effective June 1, 1999, 23 TexReg 10489; amended to be effective September 1, 2005, 30 TexReg 4984.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scB/s213.22"><num value="213.22">§213.22</num><heading>Definitions</heading><content>The definitions in Texas Water Code, §§26.001, 26.263, and 26.342, and in §213.3 of this title (relating to Definitions) apply to this subchapter. Those definitions have the same meaning unless the context in which they are used clearly indicates otherwise, or those definitions are inconsistent with the definitions listed in this section. (1) Best management practices--Schedule of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants to the Edwards Aquifer and hydrologically connected surface streams. Best management practices also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage. (2) Contributing zone--The area or watershed where runoff from precipitation flows downgradient to the recharge zone of the Edwards Aquifer. The contributing zone is illustrated on Contributing Zone (Southern Part) for the Edwards Aquifer and Contributing Zone (Northern Part) for the Edwards Aquifer. The contributing zone is located upstream (upgradient) and generally north and northwest of the recharge zone for the following counties: Attached GraphicAttached Graphic(A) all areas within Kinney County, except the area within the watershed draining to Segment 2304 of the Rio Grande Basin; (B) all areas within Uvalde, Medina, Bexar, and Comal Counties; (C) all areas within Hays and Travis Counties, except the area within the watersheds draining to the Colorado River above a point 1.3 miles upstream from Tom Miller Dam, Lake Austin at the confluence of Barrow Brook Cove, Segment 1403 of the Colorado River Basin; and (D) all areas within Williamson County, except the area within the watersheds draining to the Lampasas River above the dam at Stillhouse Hollow reservoir, Segment 1216 of the Brazos River Basin. (3) Contributing zone within the transition zone--The area or watershed where runoff from precipitation flows downgradient to the recharge zone of the Edwards Aquifer. The contributing zone within the transition zone is depicted in detail on the official recharge and transition zones maps of the agency as provided for in §213.3 of this title (relating to Definitions). The contributing zone within the transition zone is located generally south and east of the recharge zone and includes specifically those areas where stratigraphic units not included in the Edwards Aquifer crop out at topographically higher elevations and drain to stream courses where stratigraphic units of the Edwards Aquifer crop out and are mapped as recharge zone. (4) Texas Pollutant Discharge Elimination System permits for storm water discharges from construction activities (TPDES permits)--Texas Pollutant Discharge Elimination System general or individual permits issued by the agency for storm water discharges from construction activities in Texas. (5) Notice of intent (NOI)--Notice of intent required by the Texas Pollutant Discharge Elimination System general permits for storm water discharges from construction activities. (6) Regulated activity-- (A) Any construction or post-construction activity occurring on the contributing zone of the Edwards Aquifer that has the potential for contributing pollution to surface streams that enter the Edwards Aquifer recharge zone. (i) These activities include construction or installation of: (I) buildings; (II) utility stations; (III) utility lines; (IV) underground and aboveground storage tank systems; (V) roads; (VI) highways; or (VII) railroads. (ii) Clearing, excavation, or other activities which alter or disturb the topographic or existing storm water runoff characteristics of a site are regulated activities. (iii) Any other activities that pose a potential for contaminating storm water runoff are regulated activities. (B) "Regulated activity" does not include: (i) the clearing of vegetation without soil disturbance; (ii) agricultural activities, except feedlots/concentrated animal feeding operations that are regulated under Chapter 321 of this title (relating to Control of Certain Activities by Rule); (iii) activities associated with the exploration, development, and production of oil or gas or geothermal resources under the jurisdiction of the Railroad Commission of Texas; (iv) routine maintenance of existing structures that does not involve site disturbance including, but not limited to: (I) the resurfacing of existing paved roads, parking lots, sidewalks, or other development-related impervious surfaces; and (II) the building of fences, or other similar activities that present little or no potential for contaminating hydrologically-connected surface water; (v) routine maintenance that involves little or no change to the topographic or geologic features; or (vi) construction of single-family residences on lots that are larger than five acres, where no more than one single-family residence is located on each lot. (7) Site--The entire area within the legal boundaries of the property described in the application. Regulated activities on a site located partially on the recharge zone and the contributing zone must be treated as if the entire site is located on the recharge zone, subject to the requirements under Subchapter A of this chapter (relating to Edwards Aquifer in Medina, Bexar, Comal, Kinney, Uvalde, Hays, Travis, and Williamson Counties).</content><note type="source"><p>Source Note: The provisions of this §213.22 adopted to be effective June 1, 1999, 23 TexReg 10489; amended to be effective September 1, 2005, 30 TexReg 4984.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scB/s213.23"><num value="213.23">§213.23</num><heading>Plan Processing and Approval</heading><content>(a) Approval by executive director.(1) No person may begin the construction of any regulated activity until a contributing zone plan or modification to a plan as required by §213.21 of this title (relating to Applicability and Persons or Entity Required to Apply) has been:(A) filed with the appropriate regional office, and(B) the application has been reviewed and approval letter issued by the executive director.(2) The appropriate regional office shall provide copies of applications to affected incorporated cities, groundwater conservation districts, and counties in which the proposed regulated activity will be located. These copies will be distributed within five days of the application being determined to be administratively complete. Any person may file comments within 30 days of the date the application is mailed to local governmental entities. The executive director shall review all comments that are timely filed.(3) A complete application for approval of a contributing zone plan, as described in this section, must be submitted with a copy of the notice of intent and the appropriate fee as specified in §213.27 of this title (relating to Contributing Zone Plan Application and Exception Fees). The application may be submitted to the executive director for approval prior to the submittal of the notice of intent to the EPA.(b) Contents of application. Applications for contributing zone plan approval filed under this subchapter must be made on forms provided by or approved by the executive director. Each application must, at a minimum, include the following:(1) the name of the development, subdivision, or facility for which the application is submitted and the name, address, and telephone number of the owner or any other persons signing the application;(2) a narrative description of the location of the project or facility for which the application is submitted, presenting sufficient detail and clarity so that the project site and its boundaries can be located during a field inspection;(3) a technical report as described under §213.24 of this title must accompany the application for plan approval; and(4) any additional information needed by the executive director for plan approval.(c) Submission of application.(1) Submit one original and one copy for the executive director's review and additional copies as needed for each affected incorporated city, groundwater conservation district, and county in which the proposed regulated activities will be located. The copies must be submitted to the appropriate regional office.(2) Only the following may submit an application for review and approval by the executive director:(A) owner(s);(B) the owner(s)' authorized agent(s); or(C) those persons having the right to possess and control the property which is the subject of the contributing zone plan.(d) Signatories to applications. All applications must be signed as specified under §213.4(d)(1) of this title (relating to Required Signature). The executive director requires written proof of authorization for any person signing an application.(e) Executive director review. The executive director must complete the review of an application within 90 days after determining that it is administratively complete. The executive director must declare that the application is administratively complete or deficient within 30 days of receipt by the appropriate regional office. Grounds for a deficient application include, but are not limited to, failure to include all information listed in this section and failure to pay all applicable application fees.(f) Additional provisions. As a condition of contributing zone plan approval, the executive director may impose additional provisions necessary to protect the Edwards Aquifer from pollution. The executive director may conditionally approve a contributing zone plan or impose special conditions on the approval of a contributing zone plan. Upon inspection, the executive director may require the applicant to take additional measures if the activities do not conform to an approved plan or the plan did not address all potential sources of pollution as required by these rules.(g) Term of approval. The executive director's approval of a contributing zone plan will expire two years after the date of initial issuance, unless prior to the expiration date, substantial construction related to the approved plan has commenced. For purposes of this subsection, substantial construction is where more than ten percent of total construction has commenced. If a written request for an extension is filed under the provisions of this subsection, the approved plan continues in effect until the executive director acts on the request for an extension.(1) A written request for an extension must be received not earlier than 60 days prior to the expiration date of an approved contributing zone plan or a previously approved extension. Requests for extensions are subject to fees outlined in §213.28 of this title (relating to Fees Related to Requests For Contributing Zone Plan Approval Extension).(2) An executive director's approved extension will expire six months after the original expiration date of the approved contributing zone plan or a previously approved extension unless prior to the expiration date, commencement of construction, repair, or replacement related to the approved plan has occurred.(3) A plan approval will expire and no extension will be granted if less than 50 percent of the total construction has been completed within ten years from the initial approval of a plan. A new plan must be submitted to the appropriate regional office with the appropriate fees for review and approval by the executive director prior to commencing any additional regulated activities.(4) Any requests for extensions received by the executive director after the expiration date of an approved contributing zone plan or a previously approved extension will not be accepted. A new application for the purposes of this subchapter must be submitted to the appropriate regional office with the appropriate fees for the review and approval by the executive director.(5) An extension will not be granted if the proposed regulated activity under an approved plan has changed.(h) Legal transfer of property. Upon legal transfer of property, the new owner(s) is required to comply with all terms of the approved contributing zone plan. If the new owner intends to commence any new regulated activity on the site, a new application for plan approval for the new activity must be filed with and approved by the executive director beforehand.(i) Modification of a previously approved plan. The holder of any approved contributing zone plan letter must notify the appropriate regional office in writing and obtain approval from the executive director prior to initiating any of the following:(1) any physical or operational modification of any best management practices or structure(s), including but not limited to temporary or permanent ponds, dams, berms, silt fences, and diversionary structures;(2) any change in the nature or character of the regulated activity from that which was originally approved;(3) a change that would significantly impact the ability to prevent pollution of the Edwards Aquifer and hydrologically connected surface water; or(4) any development of land previously identified in a contributing zone plan as undeveloped.(j) Compliance. The holder of the approved or conditionally approved contributing zone plan letter is responsible for compliance with this subchapter and the approved plan. The holder is also responsible for any special conditions of an approved plan through all phases of plan implementation. Failure to comply with any rule or condition of the executive director's approval is a violation of this rule and is subject to administrative orders and penalties as provided under §213.25 of this title (relating to Enforcement). Such violations may also be subject to civil penalties and injunction.(k) Responsibility for maintenance of permanent best management practices (BMPs) and measures after construction is complete.(1) The applicant shall be responsible for maintaining the permanent BMPs after construction until such time as the maintenance obligation is either assumed in writing by another entity having ownership or control of the property (such as without limitation, an owner's association, a new property owner or lessee, a district, or municipality) or the ownership of the property is transferred to the entity. Such entity shall then be responsible for maintenance until another entity assumes such obligations in writing or ownership is transferred.(2) A copy of the transfer of responsibility must be filed with the executive director at the appropriate regional office within 30 days of the assumption of the obligation or the transfer of ownership.(3) This section applies to:(A) multiple single-family residential developments, multi-family residential, and(B) non-residential developments such as commercial, industrial, institutional, schools, and other sites where regulated activities occur.</content><note type="source"><p>Source Note: The provisions of this §213.23 adopted to be effective June 1, 1999, 23 TexReg 10489; amended to be effective July 18, 2002, 27 TexReg 6311.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scB/s213.24"><num value="213.24">§213.24</num><heading>Technical Report</heading><content>For all regulated activities, a technical report must accompany the application for contributing zone plan approval. The report must address the following issues. The site description, controls, maintenance, and inspection requirements for the storm water pollution prevention plan (SWPPP) developed under the Texas Pollutant Discharge Elimination System (TPDES) general permits for storm water discharges may be submitted to fulfill paragraphs (1) - (5) of this section, providing the following requirements are met.(1) The report must contain a location map and the site plan.(A) The location map must be a legible road map with directions, including mileage, which would enable the executive director to locate the site for inspection.(B) The site plan must be drawn at a minimum scale of one inch to 400 feet. The site plan must show:(i) the 100-year floodplain boundaries (if applicable);(ii) the layout of the development, and existing and finished contours at appropriate, but not greater than ten foot contour intervals; and(iii) a drainage plan showing all paths of drainage from the site to surface streams;(iv) the drainage patterns and approximate slopes anticipated after major grading activities;(v) areas of soil disturbance and areas that will not be disturbed;(vi) locations of major structural and nonstructural controls identified in the technical report;(vii) locations where stabilization practices are expected to occur;(viii) surface waters (including wetlands); and(ix) locations where storm water discharges to a surface water.(2) The report must describe the nature of the regulated activity (such as residential, commercial, industrial, or utility), including:(A) the size of the site in acres;(B) the projected population for the site;(C) the amount and type of impervious cover expected after construction is complete, such as paved surface or roofing;(D) the amount of surface area expected to be occupied by parking lots; and(E) other factors that could affect the surface water quality.(3) The report must describe the volume and character of storm water runoff expected to occur. Estimates of storm water runoff quality and quantity should be based on area and type of impervious cover, as described in paragraph (2)(C) of this section. An estimate of the runoff coefficient of the site for both the pre-construction and post-construction conditions should be included in the report.(4) The report must describe any activities or processes that may be a potential source of contamination and must provide the following information:(A) the intended sequence of major activities that disturb soils for major portions of the site (e.g., grubbing, excavation, grading, utilities, and infrastructure installation);(B) estimates of the total area of the site that is expected to be disturbed by excavation, grading, or other activities;(C) a site map indicating the following: approximate slopes anticipated after major grading activities; areas of soil disturbance; areas that will not be disturbed; locations of major structural and nonstructural controls identified in the technical report; locations where stabilization practices are expected to occur; surface waters (including wetlands); and locations where storm water discharges to a surface water;(D) location and description of any discharge associated with industrial activity other than construction; and(E) the name of the receiving water(s) at or near the site that will be disturbed or will receive discharges from disturbed areas of the project.(5) The report must describe the temporary best management practices (BMPs) and measures that will be used during construction. The technical report must clearly describe for each major activity identified in paragraph (4) of this section appropriate control measures and the general timing (or sequence) during the construction process when the measures will be implemented. The SWPPP developed under the TPDES general permits for storm water discharges may be submitted to fulfill this part of the technical report providing the following requirements are met.(A) BMPs and measures must prevent pollution of surface water or storm water that originates upgradient from the site and flows across the site.(B) BMPs and measures must prevent pollution of surface water that originates on-site or flows off the site, including pollution caused by contaminated storm water runoff from the site.(C) A plan for the inspection of the temporary BMPs and measures and for their timely inspection, maintenance, repair, and, if necessary, retrofit must be included in the report.(D) BMPs and measures must meet the requirements contained in §213.5(b)(4)(D)(i) of this title (relating to Required Edwards Aquifer Protection Plans, Notification, and Exemptions).(E) Temporary sediment pond or basin construction plans and design calculation for a proposed temporary BMP or measure must be prepared by or under the direct supervision of a Texas licensed professional engineer. All construction plans and design information must be signed, sealed, and dated by the Texas licensed professional engineer.(F) The construction-phase erosion and sediment controls should be designed to retain sediment on site to the extent practicable.(G) All control measures must be properly selected, installed, and maintained in accordance with the manufacturer's specifications and good engineering practices. If periodic inspections by the applicant or the executive director or other information indicates a control has been used inappropriately, or incorrectly, the applicant must replace or modify the control for site situations.(H) If sediment escapes the construction site, off-site accumulations of sediment must be removed at a frequency sufficient to minimize off-site impacts (e.g., fugitive sediment in street could be washed into surface streams or sensitive features by the next rain).(I) Sediment must be removed from sediment traps or sedimentation ponds when design capacity has been reduced by 50%.(J) Litter, construction debris, and construction chemicals exposed to storm water must be prevented from becoming a pollutant source for storm water discharges (e.g., screening outfalls, picked up daily).(6) The report must describe the permanent BMPs and measures that will be used after construction.(A) BMPs and measures must prevent pollution of surface water or storm water originating on-site or upgradient from the site and flows across the site.(B) BMPs and measures must prevent pollution of surface water downgradient of the site, including pollution caused by contaminated storm water runoff from the site.(C) BMPs and measures must meet the requirements contained in §213.5(b)(4)(D)(ii) of this title.(i) Construction plans and design calculations for the proposed permanent BMPs and measures must be prepared by or under the direct supervision of a Texas licensed professional engineer. All construction plans and design information must be signed, sealed, and dated by the Texas licensed professional engineer.(ii) The technical report must contain a plan for the inspection of the permanent BMPs and measures and for their timely inspection, maintenance, repair, and, if necessary, retrofit, if requirements contained in §213.5(b)(4)(D) of this title are not being met. This plan must be prepared by the engineer designing the permanent BMPs and measures and signed by the owner or responsible party.(iii) Pilot-scale field testing (including water quality monitoring) may be required for permanent BMPs and measures that are not contained in technical guidance recognized by or prepared by the executive director.(I) When pilot-scale field testing of an innovative technology (including water quality monitoring) is required, only one pilot site will be approved.(II) No additional approvals will be granted until the pilot study is complete and the applicant demonstrates adequate protection of surface water that enters the recharge zone of the Edwards Aquifer.(III) If the innovative technology demonstrates adequate protection, additional units may be approved for use as permanent BMPs and measures on the contributing zone.(IV) If the innovative technology demonstrates inadequate protection of surface streams that enter the recharge zone of the Edwards Aquifer, a retrofit of the permanent BMP may be required to achieve compliance with §213.5(b)(4)(D) of this title and no additional units will be approved for use on the contributing zone.(7) The technical report must describe the measures that will be taken to avoid or minimize surface stream contamination, or changes in the way that water enters a stream as a result of construction and development. The measures should address the following:(A) increased stream flashing;(B) the creation of stronger flows and instream velocities; and(C) other instream effects caused by the regulated activity that increase erosion that results in water quality degradation.(8) The technical report must describe the method of disposal of wastewater from the site.(A) If wastewater is to be disposed of by conveyance to a sewage treatment plant for treatment and disposal, the existing or proposed treatment facility must be identified.(B) If wastewater is to be disposed of by an on-site sewage facility, the application must be accompanied by a written statement from the appropriate authorized agent, stating that the site is suitable for the use of private sewage facilities and will meet or exceed the requirements for on-site sewage facilities as specified under Chapter 285 of this title (relating to On-Site Sewage Facilities), or identifying those areas that are not suitable.(C) If wastewater is to be discharged in the contributing zone, requirements under §213.6(c) of this title (relating to Wastewater Treatment and Disposal Systems) must be satisfied.(9) The technical report must describe the measures that will be used to contain any spill of static hydrocarbons or hazardous substances such as on a roadway or from a pipeline or temporary aboveground storage tank system of 250 gallons or more.(A) Temporary storage facilities are those used on site for less than one year.(B) Temporary aboveground storage tank systems of 250 gallons or more cumulative storage capacity must be located a minimum horizontal distance of 150 feet from the five-year floodplain of any stream drainage.(10) The technical report must indicate the placement of permanent aboveground storage tank facilities. Permanent aboveground storage tank facilities for static hydrocarbons and hazardous substances with cumulative storage capacity of 500 gallons or greater must be constructed, and spills removed using the standards contained in §213.5(e)(1) of this title.(11) Exemption.(A) Regulated activities exempt from the contributing zone plan application requirements under this section are:(i) the installation of underground utilities, including:(I) storm and sanitary sewage lines;(II) natural gas lines;(III) telephone lines;(IV) electric lines; and(V) water lines; and(ii) the installation of underground tanks for the storage of static hydrocarbons and hazardous substances.(B) An individual land owner who seeks to construct his/her own single-family residence or associated residential structures on the site is exempt from the contributing zone plan application requirements under this subchapter, provided that the land owner does not exceed 20% impervious cover on the site.(C) Temporary erosion and sedimentation controls are required to be installed and maintained for exempted activities on the contributing zone. All temporary erosion and sedimentation controls must meet the requirements contained in paragraph (5) of this section, must be installed prior to construction, must be maintained during construction, and may be removed only when vegetation is established and the construction area is stabilized. This subparagraph does not apply to single-family residences on a site greater than five acres or on a site less than five acres and not a part of a common plan of development or sale with the potential to disturb cumulatively five or more acres.(D) The executive director may monitor storm water discharges from these projects to evaluate the adequacy of the temporary erosion and sedimentation control measures. Additional protection will be required if the executive director determines that these controls are inadequate to protect water quality.</content><note type="source"><p>Source Note: The provisions of this §213.24 adopted to be effective June 1, 1999, 23 TexReg 10489; amended to be effective September 1, 2005, 30 TexReg 4984.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scB/s213.25"><num value="213.25">§213.25</num><heading>Enforcement</heading><content>Liability for penalties may result and may subject a noncompliant person to enforcement proceedings initiated by the executive director if there is failure to comply with:(1) any provision of this subchapter,(2) an approved or conditionally approved contributing zone plan or letter, or(3) any applicable regulation or order of the commission issued pursuant to this chapter and in accordance with Chapter 26 and other relevant provisions of the Texas Water Code or Texas Health and Safety Code.</content><note type="source"><p>Source Note: The provisions of this §213.25 adopted to be effective June 1, 1999, 23 TexReg 10489.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scB/s213.26"><num value="213.26">§213.26</num><heading>Exceptions</heading><content>(a) Granting of exceptions. Exceptions to any substantive provision of this subchapter related to the protection of water quality may be granted by the executive director if the requestor can demonstrate equivalent water quality protection for surface streams which enter the recharge zone of the Edwards Aquifer. Prior approval under this section must be obtained from the executive director for the exception to be authorized.(b) Procedure for requesting an exception. A person requesting an exception to the provisions of this subchapter relating to the protection of water quality must file an original and one copy of a written request with the executive director at the appropriate regional office stating in detail:(1) the name, address, and telephone numbers of the requestor;(2) site and project name and location;(3) the nature of the exception requested;(4) the justification for granting the exception as described in subsection (a) of this section; and(5) any other pertinent information that the executive director requests.(c) Fees related to requests for exceptions. A person submitting an application for an exception, as described in this section, must pay $500 for each exception request. The fee is due and payable at the time the exception request is filed, and should be submitted as described in §213.27 of this title (relating to Application Fees). If the exception request fee is not submitted in the correct amount, the executive director is not required to consider the exception request until the correct fee is submitted.</content><note type="source"><p>Source Note: The provisions of this §213.26 adopted to be effective June 1, 1999, 23 TexReg 10489; amended to be effective April 24, 2008, 33 TexReg 3296.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scB/s213.27"><num value="213.27">§213.27</num><heading>Application Fees</heading><content>(a) The person submitting an application for approval or modification of any contributing zone plan under this subchapter must pay an application fee in the amount set forth in subsection (b) of this section. The fee is due and payable at the time the application is filed. The fee must be sent to either the appropriate regional office or the cashier in the agency headquarters located in Austin, accompanied by an Edwards Aquifer Contributing Zone Fee Application Form, provided by the executive director. Application fees must be paid by check or money order, payable to the "Texas Commission on Environmental Quality." If the application fee is not submitted in the correct amount, the executive director is not required to consider the application until the correct fee is submitted.(b) For contributing zone plans and modifications to those plans, the application should be based on the classification and the total acreage of the site where regulated activities will occur as specified in Table 2 of this subsection.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §213.27 adopted to be effective June 1, 1999, 23 TexReg 10489; amended to be effective September 1, 2005, 30 TexReg 4984; amended to be effective April 24, 2008, 33 TexReg 3296.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c213/scB/s213.28"><num value="213.28">§213.28</num><heading>Fees Related to Requests for Extensions</heading><content>The person submitting an application for an extension of an approval of any contributing zone plan under this subchapter must pay $150 for each extension request. The fee is due and payable at the time the extension request is filed, and should be submitted as described in §213.27 of this title (relating to Application Fees). If the extension fee is not submitted in the correct amount, the executive director is not required to consider the extension request until the correct fee is submitted. The extension request must be submitted to the appropriate regional office and must include a copy of the contributing zone plan application and approval letter that is the subject of the extension request.</content><note type="source"><p>Source Note: The provisions of this §213.28 adopted to be effective June 1, 1999, 23 TexReg 10489; amended to be effective April 24, 2008, 33 TexReg 3296.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c213/scC"><num value="C">SUBCHAPTER C</num><heading>DISCHARGE OF PESTICIDES</heading><section identifier="/us/state/tx/tac/t30/p1/c213/scC/s213.31"><num value="213.31">§213.31</num><heading>Discharge of Pesticides</heading><content>Discharges associated with pesticide applications authorized by the commission or exempted from permit requirements by federal or state statute are exempt from the prohibition of increased pollutant load found in Subchapters A and B of this chapter (relating to Edwards Aquifer).</content><note type="source"><p>Source Note: The provisions of this §213.31 adopted to be effective March 31, 2011, 36 TexReg 1985.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c214"><num value="214">CHAPTER 214</num><heading>SECONDARY CONTAINMENT REQUIREMENTS FOR UNDERGROUND STORAGE TANK SYSTEMS LOCATED OVER CERTAIN AQUIFERS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c214/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c214/sc/s214.1"><num value="214.1">§214.1</num><heading>Purpose</heading><content>The purpose of this chapter is to provide requirements for secondary containment for underground storage tank systems located over certain aquifers to protect and maintain the quality of groundwater resources in the state from environmental contamination that could result from releases of harmful substances stored in such tanks.</content><note type="source"><p>Source Note: The provisions of this §214.1 adopted to be effective June 12, 2002, 27 TexReg 4985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c214/sc/s214.2"><num value="214.2">§214.2</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings and supercede the definitions in Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks), unless the context clearly indicates otherwise.(1) Ancillary equipment -- Any devices that are used to distribute, meter, or control the flow of petroleum substances or hazardous substances into or out of an underground storage tank (UST), including, but not limited to, piping, fittings, flanges, valves, and pumps.(2) Existing UST system -- A UST system which is used or designed to contain an accumulation of regulated substances for which installation either had commenced prior to December 22, 1988, or had been completed on or prior to December 22, 1988. Installation will be considered to have commenced if the owner or operator had obtained all federal, state, and local approvals or permits necessary to begin physical construction at the site or installation of the tank system, and if either a continuous on-site physical construction or installation program had begun or the owner or operator had entered into contractual obligations (which could not be canceled or modified without substantial loss) which required that the physical construction at the site or installation of the tank system was to be completed within a reasonable time.(3) Major aquifer -- An aquifer defined by the Texas Water Development Board (TWDB) as supplying large quantities of water in large areas of the state.(4) New UST system -- A UST system which is used or designed to contain an accumulation of regulated substances for which installation commenced after December 22, 1988; or a UST system which is converted from the storage of materials other than regulated substances to the storage of regulated substances after December 22, 1988.(5) Outcrop -- The surface extent of a major aquifer as mapped by the TWDB in which the host geologic formations are exposed at the land surface or overlain by alluvial or soil covers.(6) Replaced -- The permanent removal from service (in accordance with all applicable requirements of Chapter 334 of this title) of a UST system and the installation of any replacement UST system in accordance with all applicable requirements of this chapter and Chapter 334 of this title.(7) Secondary containment -- A method by which a secondary wall or barrier is installed around a UST system in a manner designed to prevent a release of a regulated substance from migrating beyond the secondary wall or barrier before the release can be detected. A secondary containment system may include an impervious liner, jacket, containment boot, sump, or vault surrounding a primary tank or piping system or a double-wall tank or piping system.(8) Underground storage tank (UST) -- Any one or combination of underground tanks and any connecting underground pipes used to contain an accumulation of regulated substances, the volume of which, including the volume of the connecting underground pipes, is 10% or more beneath the surface of the ground.(9) Underground storage tank (UST) system -- A UST, connected underground piping, underground ancillary equipment, and containment system, if any.(10) Upgraded --(A) The addition, improvement, retrofitting, or renovation of an existing UST system with equipment or components as required to initially meet upgrading requirements with regard to corrosion protection, spill and overfill prevention, and release detection as specified in Chapter 334 of this title.(B) The addition, improvement, retrofitting, or renovation of a new UST system with equipment or components as required to bring that system into initial compliance with the installation requirements which were:(i) applicable after December 22, 1988 and before September 29, 1989 under EPA rules (40 Code of Federal Regulations Part 280); or(ii) applicable on or after September 29, 1989 under Chapter 334 of this title.</content><note type="source"><p>Source Note: The provisions of this §214.2 adopted to be effective June 12, 2002, 27 TexReg 4985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c214/sc/s214.3"><num value="214.3">§214.3</num><heading>Applicability</heading><content>(a) The rules in this chapter provide secondary containment requirements for underground storage tank (UST) systems that are in accordance with and in addition to the requirements prescribed by Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks) and where applicable, Chapter 213 of this title (relating to Edwards Aquifer).(b) A UST system which is installed, upgraded, or replaced on or after September 1, 2001, shall, at minimum, incorporate a method for secondary containment if that system is located in:(1) the outcrop of a major aquifer composed of limestone and associated carbonate rocks of Cretaceous age or older; and(2) a county that:(A) has a population of at least one million and relies on groundwater for at least 75% of the county's water supply; or(B) has a population of at least 75,000 and is adjacent to a county described by subparagraph (A) of this paragraph.(c) Effective September 1, 2001, the requirements in subsection (b)(1) of this section apply only to the outcrop of the Edwards (Balcones Fault Zone) and Trinity aquifers as defined by the Texas Water Development Board in Bexar and Comal Counties.</content><note type="source"><p>Source Note: The provisions of this §214.3 adopted to be effective June 12, 2002, 27 TexReg 4985.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c216"><num value="216">CHAPTER 216</num><heading>WATER QUALITY PERFORMANCE STANDARDS FOR URBAN DEVELOPMENT</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c216/scB"><num value="B">SUBCHAPTER B</num><heading>MUNICIPAL WATER POLLUTION CONTROL AND ABATEMENT</heading><section identifier="/us/state/tx/tac/t30/p1/c216/scB/s216.21"><num value="216.21">§216.21</num><heading>Purpose and Policy</heading><content>(a) The purpose of this subchapter is to establish procedures and measures in accordance with Texas Water Code, §26.177(a) to address water pollution that is attributable to non-permitted sources in cities that have a population of 10,000 or more persons.(b) An unauthorized discharge is a violation of Texas Water Code, §26.121. An unauthorized discharge relates to a discharge of waste and pollutants as it is defined in the Texas Water Code. Nothing in this subchapter is intended to limit or prevent the commission from abating or preventing the pollution of water in the state through permits, orders, or other enforcement actions authorized under the Texas Water Code, Chapter 26, or other applicable state or federal law.</content><note type="source"><p>Source Note: The provisions of this §216.21 adopted to be effective March 9, 1999, 24 TexReg 1622.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c216/scB/s216.22"><num value="216.22">§216.22</num><heading>Applicability</heading><content>(a) This rule applies to any city with a population of at least 10,000 persons, based on the most recent federal decennial census, and in which a water quality assessment report required by Texas Water Code, §26.0135 or other commission assessment or study, as described in §216.24 of this title (relating to Water Quality Assessments and Studies), has identified water pollution that is attributable to non-permitted sources, excluding sources over which a municipality does not have regulatory jurisdiction. Cities meeting applicability shall be required to satisfy applicable provisions of this subchapter upon receipt of notice issued by the executive director pursuant to §216.25 of this title (relating to Notice of Initial Determination).(b) A city whose population falls below 10,000, based on the most recent federal decennial census, will no longer have a duty to satisfy the applicable provisions of this subchapter upon the executive director's receipt from the city of the most recent federal decennial census indicating that the population has fallen below 10,000.(c) A Water Pollution Control and Abatement Program submitted under this subchapter is not a Water Pollution and Abatement Plan as provided by Texas Water Code, §26.121(a)(2)(B).</content><note type="source"><p>Source Note: The provisions of this §216.22 adopted to be effective March 9, 1999, 24 TexReg 1622.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c216/scB/s216.23"><num value="216.23">§216.23</num><heading>Definitions</heading><content>Terms defined in Chapter 3 of this title (relating to Definitions) will have the same meaning when used in this subchapter unless the definition is specifically modified in this section.(1) City--A municipality or city existing, created, or organized under the general, home rule, or special laws of this state.(2) Extra territorial jurisdiction-An area outside the corporate limits of a municipality as defined in Local Government Code, §42.021.(3) Non-permitted sources--Sources of water pollution that are not authorized to discharge pollution into or adjacent to waters in the state by a valid permit, general permit, or rule pursuant to Texas Water Code, Chapter 26, the federal Clean Water Act, or other applicable state or federal law. This definition includes, but is not limited to, non-point sources of pollution as those sources are defined and identified pursuant to Chapter 220 of this title (relating to Regional Assessments of Water Quality), the federal Clean Water Act, the Coastal Zone Act Reauthorization Amendments of 1990, §6217, and other applicable state and federal statutes, regulations, policies, and guidance. This definition does not include discharges authorized by an NPDES or TPDES permit for municipal stormwater discharges.(4) Pollution--The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of any water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property, or to public health, safety or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful or reasonable purpose.(5) Significant waste discharge--Point source discharges of waste or pollutants to receiving water that have been identified to cause pollution without regard to whether or not the discharges are authorized by the commission.</content><note type="source"><p>Source Note: The provisions of this §216.23 adopted to be effective March 9, 1999, 24 TexReg 1622.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c216/scB/s216.24"><num value="216.24">§216.24</num><heading>Water Quality Assessments and Studies</heading><content>Water quality assessments and studies that may be used by the executive director to identify water pollution that is attributable to non-permitted sources shall consist of one or more of the following.(1) State water quality inventory. The state program which assesses the quality of surface and ground waters resulting in a report describing the status of water quality in the state in accordance with the Federal Clean Water Act, §305(b).(2) Clean rivers program. Watershed water quality assessments conducted in accordance with Texas Water Code, §26.0135.(3) State nonpoint source assessment. The state program implemented in compliance with Federal Clean Water Act, §319(a), which identifies surface and ground waters in the state which cannot reasonably be expected to attain or maintain applicable water quality standards or the goals and requirements of the federal Clean Water Act without additional controls for nonpoint sources of pollution.(4) Total maximum daily load. Pursuant to Clean Water Act, §303(d), states are required to develop total maximum daily loads for waters within the state for which the effluent limitations required by the Clean Water Act, §301(b)(1)(A) and (B) are not stringent enough to implement any water quality standard applicable to such waters.(5) Other. Special studies, pilot projects, reports, or other quality assured assessments of water quality in the state prepared, approved, or accepted by the executive director that identify non-permitted sources of water pollution within cities, including information used by the executive director for the purpose of updating the state's list of impaired waters prepared in accordance with the federal Clean Water Act, §303(d).</content><note type="source"><p>Source Note: The provisions of this §216.24 adopted to be effective March 9, 1999, 24 TexReg 1622.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c216/scB/s216.25"><num value="216.25">§216.25</num><heading>Notice of Initial Determination</heading><content>If it is determined by the executive director that a city has met the criteria set forth in §216.22(a) of this title (relating to Applicability) or the executive director is requiring the city to amend an existing water pollution control and abatement program, the executive director shall notify the city. This notice shall specify the following:(1) the basis for the executive director's determination;(A) that the city meets the criteria set forth in §216.22(a) of this title; or(B) that the city's existing Water Pollution Control and Abatement Program should be amended;(2) that the executive director may undertake additional water quality assessments and studies in the impacted area as set out in §216.24 of this title (relating to Water Quality Assessments and Studies);(3) that the city may undertake additional water quality assessments and studies in the impacted area within its jurisdiction which comply with quality assurance requirements of the executive director; and(4) the time period (not to exceed five years) within which the city may try to correct the problem. The executive director may extend this time period when new or additional information or circumstances warrant such an extension.</content><note type="source"><p>Source Note: The provisions of this §216.25 adopted to be effective March 9, 1999, 24 TexReg 1622.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c216/scB/s216.26"><num value="216.26">§216.26</num><heading>Final Determination of Applicability</heading><content>(a) After expiration of the time period specified in §216.25(a)(4) of this title (relating to Notice of Initial Determination) , the executive director shall determine whether a city still meets the criteria set forth in §216.22(a) of this title (relating to Applicability) based on water quality assessments and studies set out in §216.24 of this title (relating to Water Quality Assessments and Studies) performed subsequent to the initial determination, taking into consideration any measures taken and improvements that have resulted or that will result from allowing full implementation of the city's efforts to correct the problem. (b) If the executive director determines that a city continues to meet the criteria set forth in §216.22(a) of this title, the executive director at a regularly scheduled meeting held by the commission shall recommend that the city be required to submit a Water Pollution Control and Abatement Program or, when appropriate, amend an existing Water Pollution Control and Abatement Program. (c) Consideration at a regularly scheduled meeting of the commission shall not be required if the executive director and the city agree that the city will develop and implement a Water Pollution Control and Abatement Program, or amend an existing Program. In lieu of a public meeting, the city, based on an agreement with the executive director, may request that the commission issue an agreed order to submit a Program as described in §216.27 of this title (relating to Water Pollution Control and Abatement Programs) or an amendment to an existing Program as described in §216.29 of this title (relating to Amendment Procedures for Water Pollution Control and Abatement Programs). (d) The burden of demonstrating that the city meets the criteria set forth in §216.22(a) of this title shall rest on the executive director. (e) The executive director shall cause notice of the regularly scheduled meeting to be published in the Texas Register informing the public of the meeting and that the public has 30 days prior to the regularly scheduled commission meeting to provide written comment to the commission on whether the city should be required to develop and implement a Water Pollution Control and Abatement Program or amend an existing Water Pollution Control and Abatement Program. (f) In considering the matter at the regularly scheduled meeting, the commission may: (1) upon its own motion or upon the request of a party, conduct a contested case proceeding and consider evidence and hear oral argument of the parties, or refer the matter to SOAH for a contested case hearing conducted pursuant to the Administrative Procedure Act (APA) to determine whether the city continues to meet the criteria set forth in §216.22(a) of this title; (2) determine that the city is not required to submit a Water Pollution Control and Abatement Program; (3) determine that the city continues to meet the criteria set forth in §216.22(a) of this title and approve the executive director's recommendation that the city be required to develop, or where appropriate amend, and implement a Water Pollution Control and Abatement Program; or (4) issue any other order the commission deems appropriate. (g) Should the commission determine under subsection (f)(3) of this section that a Water Pollution Control and Abatement Program is required, the commission order shall specify the pollutants and non-permitted sources of concern and the deadline for the submission of a Water Pollution Control and Abatement Program. (h) The regularly scheduled meeting held by the commission pursuant to this section shall satisfy the requirement of the public hearing mandated by Texas Water Code, §26.177. (i) A commission order issued pursuant to subsection (f) of this section is a final and appealable order under Texas Water Code, §5.351. As a prerequisite to appeal, a motion for rehearing under §80.271 of this title (relating to Motion for Rehearing) must be filed within 20 days after the date the city or the city's attorney of record is notified of the commission's final decision or order under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §216.26 adopted to be effective March 9, 1999, 24 TexReg 1622.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c216/scB/s216.27"><num value="216.27">§216.27</num><heading>Water Pollution Control and Abatement Programs</heading><content>(a) The Water Pollution Control and Abatement Program of a city shall encompass the area within a city's municipal boundaries and, subject to Texas Water Code, §26.179 (relating to Designation of Water Quality Protection Zones in Certain Areas), may include areas within its extra-territorial jurisdiction which in the judgment of the city should be included to enable the city to achieve its objectives for the area within its territorial jurisdiction.(b) The city shall include in the Program the services and functions which, in the judgment of the city or as may be reasonably required by the commission, will provide effective water pollution control and abatement for the city to address water pollution attributable to non-permitted sources, including the following services and functions:(1) the development and maintenance of an inventory of all significant waste discharges into or adjacent to the water within the city and, where the city so elects, within the extraterritorial jurisdiction of the city, without regard to whether or not the discharges are authorized by the commission;(2) the regular monitoring of all significant waste discharges included in the inventory prepared pursuant to paragraph (1) of this subsection;(3) the collecting of samples and the conducting of periodic inspections and tests of the waste discharges being monitored to determine whether the discharges are being conducted in compliance with this chapter and any applicable permits, orders, or rules of the commission, and whether they should be covered by a permit from the commission;(4) in cooperation with the commission, a procedure for obtaining compliance by the waste dischargers being monitored, including where necessary the use of legal enforcement proceedings;(5) the development and execution of reasonable and realistic plans for controlling and abating pollution or potential pollution resulting from generalized discharges of waste which are not traceable to a specific source, such as storm sewer discharges and urban runoff from rainwater; and(6) any additional services, functions, or other requirements as may be prescribed by commission rule to effectuate the purposes of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §216.27 adopted to be effective March 9, 1999, 24 TexReg 1622.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c216/scB/s216.28"><num value="216.28">§216.28</num><heading>Submittal of Water Pollution Control and Abatement Programs</heading><content>A Water Pollution Control and Abatement Program shall be submitted to the executive director of the commission in accordance with the order issued pursuant to §216.26 of this title (relating to Final Determination of Applicability). Those elements requiring engineering design in the Water Pollution Control and Abatement Program for the city shall be signed and sealed by a professional engineer licensed in the State of Texas who shall certify that the city's Program is designed to abate and prevent water pollution attributable to non-permitted sources located within the city.</content><note type="source"><p>Source Note: The provisions of this §216.28 adopted to be effective March 9, 1999, 24 TexReg 1622.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c216/scB/s216.29"><num value="216.29">§216.29</num><heading>Amendment Procedures for Water Pollution Control and Abatement Programs</heading><content>(a) A city may amend the Water Pollution Control and Abatement Program for that city at any time by submitting an amended Water Pollution Control and Abatement Program to the executive director of the commission. Those elements requiring engineering design in the amended Water Pollution Control and Abatement Program for the city shall be signed and sealed by a professional engineer licensed in the State of Texas who shall certify that the city's Program is designed to abate and prevent water pollution attributable to non-permitted sources located within the city.(b) The commission, upon its own motion or in response to a petition filed by the executive director, may require a city to amend a Water Pollution Control and Abatement Program for that city when new or additional information or circumstances warrant such changes to effectuate the purposes of this subchapter.(c) The provisions for notice of initial determination under §216.25 of this title (relating to Notice of Initial Determination) and final determination of applicability under §216.26 of this title (relating to Final Determination of Applicability) shall apply to an amendment of a Water Pollution Control and Abatement Program.</content><note type="source"><p>Source Note: The provisions of this §216.29 adopted to be effective March 9, 1999, 24 TexReg 1622.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c216/scB/s216.30"><num value="216.30">§216.30</num><heading>Appeals</heading><content>Pursuant to Texas Water Code, §26.177(d), any person affected by any ruling, order, decision, ordinance, program, resolution, or other act of a city relating to water pollution control and abatement outside the corporate limits, within the extraterritorial jurisdiction of such city adopted pursuant to this subchapter or any other statutory authorization may appeal such action to the commission or district court. An appeal must be filed with the commission's chief clerk within 60 days of the enactment of the ruling, order, decision, ordinance, program, resolution, or act of the city. The issue on appeal is whether the action or program is invalid, arbitrary, unreasonable, inefficient, or ineffective in its attempt to control water quality, and the commission's order on the appeal will be based on whether the city's actions or programs meet these criteria. The commission or district court may overturn or modify the action of the city. If an appeal is taken from a commission ruling, the commission ruling shall be in effect for all purposes until final disposition is made by a court of competent jurisdiction so as not to delay any permit approvals.</content><note type="source"><p>Source Note: The provisions of this §216.30 adopted to be effective March 9, 1999, 24 TexReg 1622.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c217"><num value="217">CHAPTER 217</num><heading>DESIGN CRITERIA FOR DOMESTIC WASTEWATER SYSTEMS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c217/scA"><num value="A">SUBCHAPTER A</num><heading>ADMINISTRATIVE REQUIREMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.1"><num value="217.1">§217.1</num><heading>Applicability</heading><content>(a) Applicability.(1) This chapter applies to the design, operation, and maintenance of:(A) domestic wastewater treatment facilities that are constructed with plans and specifications received and approved by the executive director after the effective date of the amendments to this chapter;(B) treatment units that are altered, constructed, or re-rated with plans and specifications received and approved by the executive director after the effective date of the amendments to this chapter;(C) collection systems that are constructed with plans and specifications received and approved by the executive director after the effective date of the amendments to this chapter;(D) collection system units that are altered, constructed, or re-rated with plans and specifications received and approved by the executive director after the effective date of the amendments to this chapter;(E) existing domestic wastewater treatment facilities that do not have a current Texas Pollutant Discharge Elimination System permit or a Texas Land Application Permit and are required to have an active wastewater permit;(F) existing wastewater treatment facilities and collection systems that never received approval for plans and specifications from the executive director; and(G) collection system rehabilitation projects covered in §217.56(c) and §217.69 of this title (relating to Trenchless Pipe Installation; and Maintenance, Inspection, and Rehabilitation of the Collection System).(2) Domestic wastewater treatment facilities, treatment units, collection systems, and collection system units with plans and specifications approved by the executive director that were received on or after August 28, 2008 and before the effective date of this chapter must comply with the rules in this chapter, as they existed immediately before the effective date of the amendments to this chapter. The rules in effect immediately before the effective date of the amendments to this chapter are continued in effect for that purpose.(3) This chapter does not apply to:(A) the design, installation, operation, or maintenance of domestic wastewater treatment facilities, treatment units, collection systems, or collection system units with plans and specifications that were approved by the executive director on or before August 27, 2008, which are governed by Chapter 317 of this title (relating to Design Criteria Prior to 2008) or design criteria that preceded Chapter 317 of this title; and(B) systems regulated by Chapter 285 of this title (relating to On-Site Sewage Facilities); or collection systems or wastewater treatment facilities that collect, transport, treat, or dispose of wastewater that does not have the characteristics of domestic wastewater, although the wastewater may contain domestic wastewater.(b) The executive director may grant variances from new requirements added by the amendments of this chapter to a person who proposes to construct, alter, or re-rate a collection system or wastewater treatment facility if the plans and specifications for the project are submitted within 180 days after the date the amendments to this chapter are effective, provided the plans and specifications comply with the rules in effect immediately prior to the amendment.</content><note type="source"><p>Source Note: The provisions of this §217.1 adopted to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.2"><num value="217.2">§217.2</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise.(1) Activated sludge--A collection of actively growing biological organisms that results from combining wastewater, organisms, and air in an aerated treatment process.(2) Activated sludge process--A biological wastewater treatment process in which activated sludge is aerated. The activated sludge microorganisms are subsequently separated from the wastewater and wasted or returned to the process.(3) Advanced nutrient removal--A process to remove phosphorus, nitrogen, or both, that is intended to produce higher quality effluent than is normally achieved by secondary treatment processes.(4) Air gap--The unobstructed vertical distance through the free atmosphere between the lowest opening from any pipe or faucet conveying water to a tank, fixture, receptor, sink, or other assembly and the flood level rim of the receptacle. To qualify as an air gap under this chapter, the vertical, physical separation must be at least twice the diameter of the water supply outlet, but never less than 1.0 inch.(5) Alter or alteration--(A) To replace a treatment unit or a collection system unit.(B) To modify a treatment unit, a collection system unit, or an associated appurtenance, in a way that changes any of the following for a treatment unit or collection system unit:(i) the capacity; (ii) the intended function;(iii) the process;(iv) the mode of operation; (v) the configuration;(vi) a design parameter; (vii) a major design assumption; or(viii) the function of any other treatment unit or collection system unit.(6) Alternative collection system--A collection system that uses components such as grinder pumps, septic tanks, or vacuum valves, which are installed throughout the collection system, specifically including the types of collection systems identified in Subchapter D of this chapter (relating to Alternative Collection Systems). An alternative collection system is comprised of both on-site and off-site components.(7) Annual average flow--The arithmetic average of all daily flow determinations taken within a period of 12 consecutive months.(8) Appurtenance--An appliance or a component associated with a treatment unit or collection system unit that is not considered integral to the identity of the unit.(9) Auxiliary pump--A secondary or supplementary pump that is available for use as needed.(10) Biotower--A biological filtration system that involves biological film on a plastic media that reduces the biochemical oxygen demand of the effluent.(11) Building lateral--A pipe that conveys raw wastewater and connects the plumbing of a structure to a collection system pipe. For an alternative collection system, a pipe that conveys raw wastewater and connects the plumbing of a structure to an on-site component (e.g., grinder pump, vacuum valve pit, septic tank effluent pump). A building lateral is not a part of a collection system.(12) Bypass--The intentional diversion of a waste stream from any portion of a wastewater treatment facility or collection system.(13) Collection system--Pipes, conduits, lift stations, force mains, and all other constructions, devices, and appurtenant appliances used to transport domestic wastewater to a wastewater treatment facility.(14) Collection system unit--A part of a collection system that performs a basic step in the transport of wastewater to a wastewater treatment facility, provides access to the collection system, or is an integral safety feature of the collection system (e.g., pipeline, lift station, manhole, air release valve, etc.).(15) Completely mixed aerated lagoon--A lagoon in which oxygen is supplied mainly through mechanical or diffused aeration, and in which the aeration system is designed to keep solids in suspension. (16) Construct--To build, erect, place, assemble, remodel, alter, or otherwise create a treatment unit, a collection system unit or an associated component or appurtenance of a treatment unit or collection system unit. For purposes of this chapter, construction also includes installation of fencing, excavation, site preparation, and placement of skid-mounted or modular units.(17) Constructed wetland--A wastewater treatment unit designed to replicate the processes that occur in natural wetlands. Constructed wetlands are complex, integrated systems in which wastewater, plants, animals, microorganisms, and the environment (including sun, soil, and air) interact to improve water quality.(18) Day--A period of 24 consecutive hours beginning at 12:00 a.m. local time.(19) Decanter--A device used to draw off liquid without disturbing solids that are in the process of sedimentation.(20) Design flow--The highest anticipated 30-day average flow rate.(21) Design life--The length of time that an engineered structure or device is intended to function without failing.(22) Diurnal flow--The daily cycle of high and low influent flows to a wastewater treatment facility.(23) Domestic wastewater--Wastewater which originates primarily from kitchen, bathroom, and laundry sources, including waste from food preparation, dishwashing, garbage grinding, toilets, baths, showers, and sinks of a residential dwelling. Domestic wastewater may contain commercial or industrial wastewater contributions.(24) Dry Well--The portion of a pumping station where non-submersible pumps and controls are housed separately from the liquid being pumped.(25) Effective size--The particle diameter that represents the smallest 10th percentile of a sample of filter media particles on a mass basis. In other words, 10% of the sample mass consists of particles that are smaller than the effective size and 90% of the sample mass consists of particles that are larger than the effective size.(26) Effluent--Liquid that flows out of a process or confined space. This term may also be used to identify items or properties associated with effluent (e.g., effluent constituents, effluent limits, or effluent pump).(27) Emergency overflow--A conduit or spillway designed to prevent an unauthorized discharge of wastewater by redirecting excess flow for processing in a treatment unit.(28) Engineer--A professional engineer, licensed by the Texas Board of Professional Engineers, with expertise in design and construction of wastewater treatment facilities and collection systems.(29) Engineering Report--The final engineering design report prepared, signed, and sealed by the engineer. The report must include calculations and written descriptions of processes, equipment, and structures that demonstrate compliance with this chapter, as described in §217.10 of this title (relating to Final Engineering Report) and as required throughout this chapter.(30) Equalization basin--A treatment unit designed primarily to dampen fluctuations of flow or concentration before wastewater flows into a subsequent treatment unit.(31) Equivalent dwelling unit--Any building or section of a building that produces wastewater of a composition and quantity equal to that discharged by a single, private residence. For calculation purposes, an equivalent dwelling unit is occupied by 3.5 individuals, unless a different number is justified by actual data.(32) Filter media--The material placed in a filter containment structure to separate solids from a liquid.(33) Firm pumping capacity--The maximum flow rate achievable, under design conditions, with the largest pumping unit out of service.(34) Force main--A pressure-rated conduit that conveys wastewater from a lift station.(35) Free water surface wetland--A constructed wetland designed to have the water surface above the wetland bed or substrate.(36) Gravity relief sewer--A part of a collection system built to manage the flow of wastewater that exceeds the capacity of the existing collection system.(37) Grinder pump--A collection system unit that receives raw wastewater, grinds the solids in the wastewater into a slurry, and provides the motive force for transporting the slurry to a lift station or a collection system.(38) Headworks--The location where wastewater enters a wastewater treatment facility and preliminary treatment occurs, typically by removing large solids or grit.(39) Influent--Liquid that flows into a process or confined space. This term may also be used to identify items or properties associated with influent (e.g., influent constituents, influent limits, or influent pump).(40) Innovative technology--A process, method, product, or material not addressed in this chapter or a process specifically identified as innovative by this chapter.(41) Interceptor tank--A collection system unit that receives raw wastewater, removes floatable and settleable solids, stores the removed solids, and provides flow attenuation.(42) Lift station--A structure that collects wastewater and uses pumps to raise it to a higher elevation. The term lift station applies to a structure in which the static head exceeds the frictional head losses.(43) Maintenance--The scheduled preventative care, repair, or equivalent replacement of components or appurtenances of a treatment unit or a collection system unit (e.g., replacing a pump with an equivalent pump - not replacing an entire lift station, and not replacing a pump in a lift station with a pump that will operate at a different flow rate or pressure). Replacement must not cause alteration, as defined in this chapter. Maintenance does not include replacement of a treatment unit or a collection system unit.(44) Membrane bioreactor system--An activated sludge process that uses membrane filtration rather than clarification to remove solids.(45) Minimum grade effluent sewer--An alternative collection system pipeline with a constant downward slope that transports effluent from an interceptor tank by gravity flow.(46) Multiple equivalent dwelling unit--Either: (A) a group of two or more residences served by a common service connection; or (B) a commercial, industrial, institutional, or other non-residential establishment that produces wastewater: (i) in excess of 1,500 gallons per day; or (ii) not comparable in composition to that discharged by a single private residence.(47) Non-conforming technology--Technology or a process that does not conform to the design criteria of this chapter or a technology or process specifically identified as non-conforming in this chapter.(48) Off-site component--A collection system component that includes collection system pipes, force mains, pump stations, lift stations, vacuum stations, and related appurtenances not located at a wastewater treatment facility.(49) On-site component--Alternative collection system equipment placed on private property. (50) Overflow--An unauthorized flow of untreated or partially treated wastewater from a collection system or from a treatment unit at a wastewater treatment facility. (51) Owner--A person who owns a collection system or a wastewater treatment facility or part of a collection system or wastewater treatment facility. For the purposes of this chapter, "owner" refers to the owner and to the owner's representatives, agents, and designees (for example, an operator, an engineer, a staff member, a contractor).(52) Partially mixed aerated lagoon--A lagoon in which oxygen is supplied mainly through mechanical or diffused aeration, in which the aeration system is designed to allow solids to settle out of suspension.(53) Peak flow--The highest two-hour flow expected under any operational conditions, including times of high rainfall, based on a two-year, 24-hour storm or a prolonged period of wet weather.(54) Plans--Construction drawings or other documents that show details of the design of a project.(55) Preliminary treatment--Removal of wastewater constituents such as rags, sticks, floating material, and grit that may cause maintenance or operational problems in subsequent treatment units.(56) Pressure sewer--A collection system that is pressurized by pumps at each service connection.(57) Primary sedimentation unit--A treatment unit that removes solids from the wastewater by physical settling before the wastewater enters a unit that removes waste by biological conversion.(58) Primary treatment--A physical treatment process, other than preliminary treatment, that removes biologically available wastewater constituents primarily by settling or floatation.(59) Processing unit--A component of a wastewater treatment facility that performs a basic step in preparing sludge for disposal after the sludge has been separated from the wastewater (e.g., sludge thickener, digester, sludge drying bed, belt press). Processing units are considered a subset of treatment units for the purposes of this chapter.(60) Project--A construction, repair, alteration, or rehabilitation of a collection system, a wastewater treatment facility, or an associated component, beginning with design initiation and ending with permanent decommissioning.(61) Pump--A device that raises, transfers, or compresses fluids by suction, pressure, or both.(62) Rehabilitate--To repair a collection system using a technology that is described in §217.56(c) of this title (relating to Trenchless Pipe Installation) or using any other lining or coating method.(63) Re-rate--To change the design flow or design organic loading of a treatment unit, without altering the unit, based on actual performance data.(64) Secondary treatment--The level of treatment defined as secondary treatment in §309.1(b) of this title (relating to Scope and Applicability).(65) Sequencing batch reactor (SBR)--A fill and draw activated sludge treatment system where secondary aeration and secondary clarification processes are carried out sequentially in the same tank. An SBR system has the following five steps that are carried out in the following sequence: (A) fill - the basin is filled with the influent; (B) react - the influent in the basin is aerated; (C) settle - the mixed liquor within the basin is settled (clarification); (D) draw - the basin is decanted; and (E) idle - the sludge is removed from the basin.(66) Sludge stabilization--The process of destroying or inactivating pathogens in sludge and reducing volatile solids content. (67) Small diameter effluent sewer--A collection system that receives effluent from an interceptor tank and transports the flow by gravity. A small diameter effluent sewer may include minimum grade and variable grade effluent sewers.(68) Specifications--Precise standards of performance for construction work, materials, and manufactured products, which make possible the expression of expected value when they are purchased or contracted for and which provide means of determining their conformance with expectations after they are purchased or constructed.(69) Stabilization lagoon--A shallow lagoon used to achieve secondary treatment through natural processes. In this chapter, "stabilization lagoon" is synonymous with "stabilization pond," "oxidation lagoon," and "oxidation pond."(70) Subsurface flow wetland--A wetland system that maintains the water level below the surface of the gravel or other media placed in the wetland bed or cell.(71) Summary transmittal letter--A letter submitted to the executive director that provides basic information about a project so that the executive director can determine whether to require a full review of the project plans and specifications.(72) Surcharge--The hydraulic overloading of a portion of a gravity collection system. A surcharge causes wastewater to rise within manholes and may cause an overflow.(73) Totalizing meter--A water measuring device that registers or accumulates total flow. The totalizing meter shall be non-resettable.(74) Treatment unit--A component of a wastewater treatment facility that performs a basic step in the wastewater treatment process (e.g., lift station, bar screen, aeration basin, clarifier, chlorine contact chamber).(75) Twenty-five-year, 24-hour rainfall event--The maximum rainfall event with a probable recurrence interval of once in 25 years, with a duration of 24 hours, as defined by the National Weather Service in Technical Paper Number 40, Rainfall Frequency Atlas of the United States, May 1961; or equivalent regional or state rainfall information.(76) Two-year, 24-hour rainfall event--The maximum rainfall event with a probable recurrence interval of once in two years, with a duration of 24 hours, as defined by the National Weather Service in Technical Paper Number 40, Rainfall Frequency Atlas of the United States, May 1961; or equivalent regional or state rainfall information.(77) Variable grade effluent sewer--A small diameter gravity collection system that does not require a uniform gradient, but will allow for both positive and negative gradients. A variable grade effluent collection system may be used with septic tank effluent pumps.(78) Variance--A deviation from a specific requirement of this chapter. A variance requires executive director approval.(79) Wastewater--A waterborne industrial waste, recreational waste, domestic waste, or combination of these wastes.(80) Wastewater treatment facility--All contiguous land and fixtures, structures, and appurtenances used for storing, processing, and treating wastewater. A wastewater treatment facility does not include the collection system located outside of the fenced area around a wastewater treatment facility.(81) Wasting--The practice of removing sludge from a wastewater treatment process.(82) Weir overflow--The flow of liquid through or over a clarifier weir or a weir used for flow measurement.(83) Wet well--A pumping station or a portion of a pumping station that stores the fluid being pumped. A wet well may be used in conjunction with a dry well, or may contain its own submersible pumps and equipment.</content><note type="source"><p>Source Note: The provisions of this §217.2 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.3"><num value="217.3">§217.3</num><heading>Purpose</heading><content>(a) The purpose of this chapter is to establish the minimum design criteria for the comprehensive design of domestic wastewater collection systems, collection system units, wastewater treatment facilities, and treatment units. The design criteria in this chapter is intended to promote the design of facilities in accordance with good public health and water quality engineering practices. The minimum design criteria may not be sufficient for all situations. A design must protect the public health and meet water quality standards established by the commission.(b) It is also the purpose of this chapter that all domestic wastewater treatment facilities, treatment units, collection systems, collection system units, and associated components must be installed, operated, and maintained:(1) to ensure the safety of the public;(2) to ensure the safety of all individuals authorized to access a wastewater treatment facility, treatment unit, collection system, or collection system unit;(3) in accordance with the engineering report and the associated plans and specifications approved by the executive director; and(4) to ensure continuous compliance with all applicable statutory and regulatory requirements.(c) This chapter establishes procedures for the review and approval of project plans and specifications. An approval granted by a municipality in accordance with §217.8 of this title (relating to Municipality Reviews) or by the Texas Water Development Board in accordance with §217.9 of this title (relating to Texas Water Development Board Reviews) is considered equivalent to approval by the executive director.</content><note type="source"><p>Source Note: The provisions of this §217.3 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.4"><num value="217.4">§217.4</num><heading>Variances</heading><content>(a) The engineering report must include all requested variances from the requirements of this chapter.(b) The engineering report must include a technical justification for each variance requested. The executive director may determine what level of justification is acceptable.(c) If the executive director determines that a variance may potentially endanger public health or the environment, the executive director may deny the variance or require that compensatory measures be taken to prevent a nuisance or the potential endangerment of public health or the environment.(d) The executive director shall not grant or approve a variance that would violate any expressed prohibition in this chapter.(e) A variance request that has been signed, dated, and sealed by an engineer; and certified by the engineer that the requested variance does not potentially endanger public health or the environment in the summary transmittal letter required by §217.6 of this title (relating to Submittal Requirements and Review Process) is automatically approved 30 business days after receipt by the executive director unless:(1) the executive director requests additional information in writing;(2) the variance request conflicts with any prohibition listed in this chapter; or(3) the variance request conflicts with a provision in this chapter that specifically requires approval from the executive director to be in writing.</content><note type="source"><p>Source Note: The provisions of this §217.4 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.5"><num value="217.5">§217.5</num><heading>Plans and Specifications General Requirements</heading><content>(a) An owner is required to have an engineer design a collection system or wastewater treatment facility that meets the minimum requirements of this chapter. The executive director may determine that additional requirements are needed.(b) An owner is required to construct a collection system or wastewater treatment facility according to the plans and specifications approved by the executive director or an approved review authority, as designated by §217.8 of this title (relating to Municipality Reviews) or §217.9 of this title (relating to Texas Water Development Board Reviews).(c) The executive director's approval of plans and specifications of a wastewater treatment facility does not relieve an owner of the responsibility to obtain a wastewater permit or other authorization from the commission in accordance with Texas Water Code, Chapter 26.(d) The commission's approval of a wastewater permit does not relieve an owner of the responsibility to obtain plans and specifications approval for a wastewater treatment facility and the associated collection system from the executive director in accordance with this chapter.(e) An owner must ensure that its wastewater treatment facility plans and specifications meet all requirements in the associated wastewater permit.(f) The executive director's approval of plans and specifications must be in writing, unless the project is approved through the automatic approval processes in §217.6(f) or (h) of this title (relating to Submittal Requirements and Review Process).(g) Plans and specifications for a project that would alter an existing treatment unit or collection system unit must comply with the requirements of this chapter. The plans and specifications do not need to address existing treatment units or collection system units that will not be altered, unless specifically required by this chapter or requested in writing by the executive director.(h) The executive director may require more stringent design criteria of a collection system or wastewater treatment facility if the executive director determines it is necessary to protect public health or to meet water quality standards established by the commission.</content><note type="source"><p>Source Note: The provisions of this §217.5 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.6"><num value="217.6">§217.6</num><heading>Submittal Requirements and Review Process</heading><content>(a) An owner is not required to submit collection system or wastewater treatment facility plans and specifications to the executive director for approval prior to the commission issuing the wastewater treatment facility's wastewater permit.(b) An owner is not required to submit collection system or wastewater treatment facility plans and specifications for approval if the project only consists of maintenance, as defined in this chapter.(c) A wastewater treatment facility's plans and specifications must be based on a design that will at least meet the requirements and effluent limits in the associated wastewater permit.(d) An owner shall submit a summary transmittal letter to the executive director and a copy to the appropriate regional office for each collection system project and wastewater treatment facility project, except as provided by §217.8 of this title (relating to Municipality Reviews). A summary transmittal letter must include:(1) the name and address of the design firm;(2) the name, phone number, facsimile number, and email address of the engineer;(3) the county or counties where the project will be located;(4) an identifying name for the project;(5) the collection system or wastewater treatment facility owner's name, and if applicable, the wastewater treatment facility permit number and wastewater treatment facility name;(6) a statement certifying that the plans and specifications are in substantial compliance with all requirements of this chapter, with the exception of any variance requests, which must be listed in the letter;(7) a statement certifying that any variances will not threaten public health or the environment, based on the best professional judgment of the engineer who prepared the engineering report and the project plans and specifications;(8) a brief description of the project scope including:(A) a brief engineering summary of the collection system or wastewater treatment facility;(B) a list of every treatment unit or collection system unit that will be altered, constructed, rehabilitated, or re-rated within the project scope;(C) a map of the collection system or wastewater treatment facility that identifies the location of every treatment unit or collection system unit that will be altered, constructed, rehabilitated, or re-rated within the project scope;(D) a description of all variances from the requirements of this chapter, including the use of non-conforming or innovative technology; and(E) an explanation of the reasons for all variances in accordance with §217.4 of this title (relating to Variances).(9) the signature and seal of the engineer responsible for the design of the collection system or wastewater treatment facility.(e) The executive director may review the plans and specifications for any collection system or wastewater treatment facility.(f) If the executive director does not notify an owner in writing within 30 business days of the receipt of a summary transmittal letter that a review will occur, the project is approved. However, such approval is conditional, and remains subject to an executive director determination under §217.4(c) or (d) of this title. Additionally, if this provision conflicts with a requirement in this chapter that requires executive director approval in writing, then this provision does not apply.(g) If the executive director notifies an owner in writing of the intent to review a collection system or wastewater treatment facility's design, the owner shall submit the following within 30 days from the date of the notice:(1) a complete set of plans and specifications;(2) a complete engineering report as defined in §217.10 of this title (relating to Final Engineering Report);(3) all requested variances; and(4) sufficient information to satisfy the executive director that a project is in compliance with this chapter.(h) If the executive director does not notify an owner of any deficiencies within 30 business days of receipt of any additional information requested, the project is approved as long as the project does not violate any expressed prohibition in this chapter. However, such approval is conditional, subject to an executive director determination under §217.4(c) or (d) of this title. Additionally, if this provision conflicts with a requirement in this chapter for written approval from the executive director, then this provision does not apply.</content><note type="source"><p>Source Note: The provisions of this §217.6 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.7"><num value="217.7">§217.7</num><heading>Types of Plans and Specifications Approvals</heading><content>(a) Approval given by the executive director or other review authority authorized under Texas Water Code, §26.034(d) and §217.8 of this title (relating to Municipality Reviews) or §217.9 of this title (relating to Texas Water Development Board Reviews) does not relieve an owner of any liability or responsibility with respect to designing, constructing, or operating a collection system or wastewater treatment facility in accordance with applicable commission rules and the associated wastewater permit.(b) The executive director, a municipality authorized under §217.8 of this title, or the Texas Water Development Board, as authorized in §217.9 of this title, may grant the following types of approvals: standard approvals; innovative and non-conforming technology approvals; and conditional approvals.(1) Standard approval. The executive director may grant a standard approval for plans and specifications that do not include any variance requests, do not include any innovative or non-conforming technologies, and comply with all applicable parts of this chapter.(2) Approval of innovative and non-conforming technologies. The executive director may grant approval of innovative and non-conforming technologies in accordance with §217.4 of this title (relating to Variances).(A) An owner who requests approval for an innovative or non-conforming technology must submit a summary transmittal letter in accordance with §217.6(d) of this title (relating to Submittal Requirements and Review Process) and must describe the technology and give the reason(s) for selecting the technology.(B) An owner must receive written approval from the executive director before constructing, installing, or operating any innovative or non-conforming technology.(C) The executive director may require a pilot or demonstration study for an innovative or non-conforming technology. Performance data from a similarly designed full-scale process that has operated for a reasonable period under conditions similar to those of a proposed design, as determined by the executive director, may be submitted in addition to or in lieu of a pilot or demonstration study.(D) The executive director may require an owner to submit evidence that the owner, the manufacturer, or the supplier of the equipment for innovative or non-conforming technology has provided a performance bond that:(i) is acceptable to the executive director;(ii) is from a surety company listed on the United States Treasury Department's current Listing of Certified Companies; and(iii) insures the performance of the equipment for innovative or non-conforming technology.(E) The performance bond referenced in subparagraph (D) of this paragraph must guarantee the innovative or non-conforming technology for at least two years from the date the treatment unit or equipment is put into service, and must include:(i) the full cost of removing equipment and closing the innovative or non-conforming technology;(ii) the full cost of replacing the innovative or non-conforming technology with standard processes and equipment that conform to this chapter; and(iii) all associated engineering costs necessary for the removal and replacement of any failing treatment unit or equipment.(F) The executive director may require an owner to submit a supplement to the report on the performance of an innovative or non-conforming technology after a collection system or wastewater treatment facility is constructed and operating.(3) Conditional approval.(A) The executive director may grant conditional approval for a specific set of operating conditions.(B) If a conditional approval is granted, an owner is responsible for ensuring that the conditions, stipulations, and restrictions outlined in the approval letter are met. Operating outside the conditions, stipulations, or restrictions in a conditional approval is a violation of commission rules.</content><note type="source"><p>Source Note: The provisions of this §217.7 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.8"><num value="217.8">§217.8</num><heading>Municipality Reviews</heading><content>(a) The executive director may grant approval authority to a municipality that requests approval authority and meets the requirements in Texas Water Code, §26.034(d).(b) The executive director may not require plans and specifications for a collection system that transports domestic wastewater to be submitted for approval from:(1) a municipality that has been granted approval authority by the executive director under authority of Texas Water Code, §26.034(d), if the plans and specifications are prepared by a private engineering consultant and a review is conducted by an engineer who is an employee of or consultant to the municipality not affiliated with the private engineering consultant that prepared the plans and specifications under review; or(2) an entity that is required by local ordinance to submit the plans and specifications to a municipality that has been granted approval authority by the executive director for review and approval under authority of Texas Water Code, §26.034(d).(c) If a municipality seeks to perform technical reviews of collection systems, the municipality must submit a map or maps to the executive director delineating the municipality's jurisdictional boundaries for the area where it is seeking approval authority at least 30 days before commencing review of plans and specifications.(d) The municipality shall submit a revised map or maps to the executive director identifying jurisdictional boundary changes at least 30 days prior to any proposed change.(e) If a municipality ends its review authority, the municipality shall provide written notice to the executive director at least 30 days prior to ending municipal reviews.(f) A municipality's review and approval program must incorporate the following requirements:(1) the municipality's review and approval process shall ensure compliance with all the applicable rules of this chapter;(2) the municipality may only review and approve engineering reports and plans and specifications for projects that transport domestic wastewater within the jurisdictional boundaries of that municipality;(3) the municipality shall issue a written approval document that includes the details of each project approved for construction and all variances approved; and(4) the municipality shall maintain complete files of all review and approval activities.(g) The executive director may perform periodic audits of a municipality's review and approval program to ensure that the review process and approved projects comply with this chapter.(1) The executive director shall provide written notice of a pending audit to a municipality a minimum of five business days prior to beginning an audit.(2) The municipality shall make all files relating to its review and approval activities under this chapter available to the executive director, and shall maintain files for the life of each project.(3) The municipality shall make documentation of all agreements between private consultants and the municipality that relate to its review and approval activities under this chapter available to the executive director.(h) If the executive director finds, through review of specific projects or through audit of a municipality's review and approval program, that a municipality's review and approval program does not provide for compliance with the minimum design and installation requirements detailed in this chapter, the municipality must achieve compliance within a time frame established by the executive director.(i) If the municipality does not achieve the required compliance within the time frame established by the executive director, the commission may revoke the review authority of a municipality. If the commission revokes the municipality's approval authority, subsections (j), (k), (l), and (m) of this section apply.(j) The executive director shall notify a municipality in writing of the intention to revoke the municipality's approval authority and shall include a justification for revoking the authority.(k) If the executive director revokes the approval authority of a municipality, all new projects proposed to be constructed within that municipality's jurisdiction must be submitted to the executive director in accordance with §217.6 of this title (relating to Submittal Requirements and Review Process).(l) If the executive director revokes the approval authority of a municipality, the municipality shall return all subsequently submitted plans and specifications in its jurisdiction and notify any applicants of the requirement to seek approval from the executive director.(m) If the executive director revokes the approval authority of a municipality, owners of a project whose plans and specifications were already approved by the municipality are not required to seek approval from the executive director.</content><note type="source"><p>Source Note: The provisions of this §217.8 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.9"><num value="217.9">§217.9</num><heading>Texas Water Development Board Reviews</heading><content>If the Texas Water Development Board reviews plans and specifications for a collection system or wastewater treatment facility in accordance with Texas Water Code, §17.276(d), the owner shall send a copy of the approval to the executive director.</content><note type="source"><p>Source Note: The provisions of this §217.9 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.10"><num value="217.10">§217.10</num><heading>Final Engineering Report</heading><content>(a) An owner shall submit an engineering report within 30 days of the date of the executive director's written request.(b) The engineering report must include the signed and dated seal of the engineer responsible for the engineering report.(c) The engineering report must include all pertinent calculations, analyses, graphs, formulas, constants, tables, geologic information, hydraulic information, hydrological information, historical data, manufacturer's recommendations, technical assumptions, and any other information needed to demonstrate that the design of the project complies with this chapter.(d) If a variance is requested, the engineering report must include a justification for the variance and all pertinent supporting calculations, analyses, graphs, formulas, constants, tables, geologic information, hydraulic information, hydrological information, historical data, manufacturer's recommendations, technical assumptions, and any other information needed to justify the variance request.(e) If the executive director requests additional information for the engineering report, an owner shall submit the requested information prepared, signed, and sealed by an engineer, within 30 days after the date of a written request.(f) The engineering report for a collection system project must include the following:(1) a map showing the current service area, the proposed service area, and any area proposed for future expansion;(2) the topographical features of the current, the proposed, and any future service areas;(3) a description of how the design flow was determined;(4) the minimum and maximum grades for each size and type of pipe;(5) calculations of expected minimum and maximum velocities in the collection system for each size and type of pipe;(6) the proposed project's effect on the existing collection system's capacity;(7) the existing and anticipated inflow and infiltration, the hydraulic effect of the inflow and infiltration on the proposed and existing systems, inflow and infiltration flow rate monitoring, and inflow and infiltration abatement measures;(8) a description of the ability of the existing and proposed trunk and interceptor collection systems and lift stations to handle the peak flow;(9) the capability of the associated wastewater treatment facility to receive and treat the anticipated peak flow;(10) an engineering analysis demonstrating compliance with structural design, minimization of odor-causing conditions, and pipe design requirements of this chapter;(11) a description of the areas not initially served by the project, and the projected means of providing service to these areas, including special provisions incorporated into the present plans for future expansion;(12) the calculations and pump curves showing the operating characteristics of all collection system lift stations at minimum, maximum, and design flows during both present and future conditions; and(13) the safety considerations incorporated into a project design, including ventilation, entrances, working areas, explosion prevention, and methods for rerouting a portion of the collection system during repair work.(g) The engineering report for a wastewater treatment facility project must include the quantity and characteristics of the influent, wastewater treatment facility siting information, a sludge management plan, methods to control bypassing, calculations and supporting information.(1) Influent Characteristics. The engineering report must include quantity and characteristics of any existing wastewater influent, any proposed changes to the influent quantity and characteristics, and any anticipated changes to the influent quantity and characteristics. If adequate records are not available, analyses must be made of the existing conditions, and the results included in the engineering report.(2) Wastewater Treatment Facility Siting Information. The engineering report must include:(A) a general location map for the proposed wastewater treatment facility;(B) a description of the area surrounding the wastewater treatment facility that includes prevailing winds, water treatment facilities, water supply wells, surface water intakes, housing developments, industrial sites, highways, streets, parks, schools, recreational areas, shopping centers, and any other information required by the executive director;(C) a map of the wastewater treatment facility site, including the site boundary, buffer zones, and the 100-year floodplain, with supporting documentation of compliance with the buffer zone criteria and the 100-year floodplain restrictions specified in §309.13 of this title (relating to Unsuitable Site Characteristics) that is clearly legible; and(D) a map of the discharge route or land application unit that is clearly legible.(3) Sludge Management Plan. The engineering report must include a sludge management plan that provides information regarding:(A) the estimated quantity and quality of sludge that will be generated, including future sludge loads based on flow projections;(B) the sludge treatment requirements for final disposal, and the sludge storage requirements for each alternative;(C) a method of sludge transport, use, storage, and disposal; and(D) the alternatives, contingencies, and mitigation plans that ensure reliable capacity and operational flexibility.(4) Methods to Control Bypassing. The engineering report must include:(A) information and data describing features to prevent bypassing such as auxiliary power, standby and duplicate units, holding tanks, stormwater clarifiers, or flow equalization basins; and(B) operational arrangements such as the ability of pipes and valves to control flow through the treatment units and reliability of power sources to prevent unauthorized discharges of untreated or partially treated wastewater.(5) Calculations and Supporting Information. The engineering report must include:(A) the types of units proposed and their capacities;(B) the detention times, surface loadings, and weir loadings pertinent to each wastewater treatment unit;(C) a plot of the hydraulic gradient at peak flow conditions for all gravity lines;(D) the anticipated operation mode of the wastewater treatment facility;(E) organic and volumetric loadings pertinent to each treatment unit; and(F) aeration demands and how those demands will be supplied.</content><note type="source"><p>Source Note: The provisions of this §217.10 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.11"><num value="217.11">§217.11</num><heading>Construction of an Approved Facility</heading><content>(a) An owner may not begin construction of a wastewater treatment facility with approved plans and specifications until the commission issues a wastewater permit for the wastewater treatment facility, unless the commission issues the owner an authorization to construct under Texas Water Code, §26.027(c).(b) An owner must phase the construction of a wastewater treatment facility as required by the associated wastewater permit, unless a variance is granted under §217.4 of this title (relating to Variances).(c) An owner must obtain a plans and specifications approval of a particular permitted phase before beginning to construct or operate under that permitted phase.(d) A person is prohibited from allowing a discharge of untreated or partially treated wastewater during construction without a commission order for such discharge, such as an Emergency Order or a Temporary Order according to the requirements of Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions).(e) An owner that alters or constructs a treatment unit or collection system unit must comply with the requirements of this chapter that are in effect on the date the plans and specifications are submitted for approval unless granted a variance in accordance with §217.4 of this title.(f) An owner that rehabilitates a collection system under §217.56(c) or §217.69 of this title (relating to Trenchless Pipe Installation; and Maintenance, Inspection, and Rehabilitation of the Collection System) must comply with the requirements of this chapter that are in effect on the date the plans and specifications are submitted for approval. The executive director may grant variances from specific requirements in this chapter according to §217.4 of this title for a rehabilitation project.(g) The owner of an existing wastewater treatment facility that must apply for a new permit must comply with the requirements of this chapter that are in effect at the time the new permit application is received by the executive director.(h) A wastewater treatment facility owner that never received a plans and specifications approval for an existing wastewater treatment facility or treatment unit must comply with the requirements of this chapter that are in effect at the time the lack of plans and specifications approval is discovered.(i) A collection system owner that never received a plans and specifications approval for an existing collection system or collection system unit must meet the design criteria in effect at the time the lack of the plans and specifications approval is discovered.</content><note type="source"><p>Source Note: The provisions of this §217.11 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.12"><num value="217.12">§217.12</num><heading>Substantial Design Changes</heading><content>(a) A substantial design change is a change to the approved plans and specifications or an approved variance of a process, equipment, or design that has the potential to alter the way a wastewater treatment facility or collection system functions.(b) A substantial design change request must include the signed and dated seal of the engineer.(c) If the executive director determines that a substantial design change may potentially endanger public health or the environment, the executive director may deny the design change or require the owner to take compensatory measures.(d) The executive director shall not grant or approve a substantial design change that would violate any expressed prohibition in this chapter.(e) If the executive director does not notify an owner in writing that additional information is requested or that a substantial design change is denied within 30 business days after receiving a signed, dated, and sealed substantial design change request, the substantial design change is approved as long as it does not violate any prohibition in this chapter. However, such approval is conditional subject to an executive director determination under subsection (c) or (d) of this section. Additionally, if this provision conflicts with any other rule in this chapter that requires written approval from the executive director, then this provision does not apply.(f) A substantial design change must be approved by the executive director before it can be constructed, installed, or put into service.</content><note type="source"><p>Source Note: The provisions of this §217.12 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.13"><num value="217.13">§217.13</num><heading>Final Construction Drawings and Specifications</heading><content>(a) If requested by the executive director, an owner shall submit final construction drawings and specifications for a constructed collection system or constructed wastewater treatment facility within 30 days from the date of the request.(b) The signed and dated seal of an engineer must be on each sheet of the final construction drawings and on the title page of the bound final specifications.(c) The final construction drawings and specifications must include each of the items in the following paragraphs that are applicable to the project.(1) Construction drawings for a collection system.(A) The drawings for a collection system must include plan and profile drawings for both gravity pipes and pressure pipes. The drawings must specify the size, grade, and type of pipe materials.(B) The drawings must specify the location of any structural features of a collection system, including manholes, waterway crossings, bridge crossings, siphons, lift stations, and air release valves.(C) The drawings must specify the location of all potable water distribution lines that are 9.0 feet or closer to any portion of a collection system and indicate the actual separation distances.(D) The drawings must include dimensional section details of manholes, manhole covers, and any other collection pipe appurtenances.(E) The drawings for a lift station must show the location of the following:(i) all pumps, valves, pumping control equipment, safety equipment, and ventilation equipment;(ii) points that may be accessed by operational staff, such as manholes and cleanout ports;(iii) hatches and hoisting equipment for installing and removing equipment;(iv) slope and location of any wet well, floor grouting, valve vaults, valve vault pipes, and gas migration prevention measures used between a wet well and a valve vault;(v) pipe entrances and exits;(vi) sump pumps;(vii) elevations of level control switches; and(viii) any other lift station-related appurtenances.(2) Construction drawings for a wastewater treatment facility.(A) The drawings for a wastewater treatment facility must show a vertical and horizontal scale and must include:(i) plan drawings of all pipes;(ii) plan and profile drawings of each treatment unit;(iii) the dimensions of each treatment unit;(iv) all mechanical, electrical, and construction details; and(v) a hydraulic profile of a wastewater treatment facility at both design and peak flows.(B) The construction drawings may include plans for future expansion of a wastewater treatment facility.(C) The construction drawings may include a clarification of any complex details of pipe systems by including an isometric flow diagram.(3) The specifications for an alteration of an existing collection system or wastewater treatment facility must include technical descriptions of all equipment including:(A) the quantity and sizes of any equipment;(B) any applicable materials specifications;(C) testing requirements; and(D) citations to national standards with which the project complies.(4) If requested by the executive director in writing, an owner must submit additional information relating to the plans and specifications within 30 calendar days after the date the executive director sends a request.</content><note type="source"><p>Source Note: The provisions of this §217.13 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.14"><num value="217.14">§217.14</num><heading>Completion Notice</heading><content>(a) Upon completion of the construction of a collection system or wastewater treatment facility, an owner shall provide a completion notice to the executive director that:(1) is signed, sealed, and dated by an engineer;(2) certifies that the completed work complies with this chapter, the approved plans and specifications, any approved variances, any approved substantial design changes, and the associated wastewater permit; and(3) states that an operation and maintenance manual, as required in §217.16 of this title (relating to Wastewater Treatment Facility Operation and Maintenance Manual), has been prepared and a copy is located at the wastewater treatment facility.(b) An owner shall disclose in a completion notice any deviation from the approved plans and specifications that is incorporated into a project after construction began or from an approved substantial design change. An owner shall retain an engineer to review design changes and to certify, based on best professional judgment, all substantial design changes were submitted for approval, as substantial design change is defined in §217.12(a) of this title (relating to Substantial Design Changes).</content><note type="source"><p>Source Note: The provisions of this §217.14 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.15"><num value="217.15">§217.15</num><heading>Inspection</heading><content>(a) The executive director may inspect a project at any time during any phase of the project to determine compliance with the project plans and specifications, the engineering report, any variance approval, any substantial change approval, an associated permit, or the requirements of this chapter.(b) All documents required by this chapter must be available for review by the executive director upon request, according to the requirements in §217.18 of this title (relating to Provisions that Apply to All Sections in this Chapter).</content><note type="source"><p>Source Note: The provisions of this §217.15 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.16"><num value="217.16">§217.16</num><heading>Wastewater Treatment Facility Operation and Maintenance Manual</heading><content>(a) An owner of a wastewater treatment facility is responsible for developing an operation and maintenance manual with the assistance of an engineer and certified wastewater operations staff. The manual must be updated when there are personnel changes, construction of treatment units, alteration of treatment units, re-rating of treatment units, or changes in the influent quality or quantity that require permanent changes in the operation of the wastewater treatment facility.(b) An owner must ensure that the operation and maintenance manual includes all information specific to the wastewater treatment facility that is necessary to ensure efficient and safe operation, maintenance, monitoring, and reporting. The operation and maintenance manual must include administrative and recordkeeping items, operation and maintenance information, and safety information.(1) Administrative and recordkeeping items must include:(A) a table of contents;(B) a copy of the current wastewater permit;(C) names and telephone numbers for contacts with the appropriate state and federal regulatory agencies;(D) names or job titles and current telephone numbers of staff contacts;(E) a copy of the final engineering report, construction drawings, and specifications for each project, as required by §217.10 and §217.13 of this title (relating to Final Engineering Report; and Final Construction Drawings and Specifications);(F) a copy of all documents required by this chapter, including correspondence with the executive director regarding approval of plans and specifications for each project;(G) a copy of all manufacturer's recommendations relied on in the design of each project;(H) a sample of each type of Discharge Monitoring Report or Monthly Effluent Report an owner is required to submit for the wastewater treatment facility;(I) a sample daily activity report for documenting internal monitoring done in association with internal process control, including flow rates from treatment units, dissolved oxygen levels, pH, solids concentrations, sludge settling, clarifier sludge blanket depths, sludge age or retention time, and disinfection residuals; and(J) a description of the quality assurance and quality control recordkeeping requirements for all laboratory analyses performed.(2) Operation and maintenance information must include:(A) expected flow patterns, size, and capacity of all treatment units and processing units within the wastewater treatment facility;(B) start-up procedures, routine operational procedures, emergency operations procedures, and shut down procedures for all treatment units and processing units;(C) the manner and expected volumes in which solids return to aeration or waste;(D) expected solids concentrations in each treatment unit and processing unit;(E) expected clarifier weir overflow rates;(F) expected disinfectant and dechlorination usage and dosage amounts during normal and emergency operating conditions;(G) descriptions and frequencies of all routine in-situ and laboratory analyses to be performed and a list of references to standard analytical procedures;(H) description and schedule of routine maintenance activities to be performed, including lubrication and inspection of all pumps, motors, and other equipment;(I) the design life of each treatment unit; and(J) a recommended spare parts inventory with source information.(3) Safety requirements information must include:(A) all known potential or actual safety hazards within a wastewater treatment facility;(B) the location and method of use for all personal protective equipment in accordance with §217.324(a) of this title (relating to Chemical Handling);(C) a schedule for servicing all personal protective equipment, respiratory equipment, and protective equipment;(D) evacuation, shelter, and shelter-in-place plans;(E) the names and phone numbers of entities and individuals to be contacted during emergencies;(F) emergency operation plans for power outages, flooding, and other site specific emergency situations that may develop;(G) annual safety training curriculum and schedule for all wastewater treatment facility staff;(H) first aid precautions, location of first aid supplies and description of appropriate emergency medical treatment;(I) chemical disposal methods that comply with §217.247(q) of this title (relating to Chemical Pretreatment of Sludge), if applicable;(J) ultraviolet light precautions in accordance with §217.299 of this title (relating to Ultraviolet Light Disinfection System Safety), if applicable; and(K) hazardous task precautions in accordance with §217.323(b) of this title (relating to Hazardous Operation and Maintenance), if applicable.(c) An owner shall keep a copy of a current operation and maintenance manual at the wastewater treatment facility site. The operation and maintenance manual shall be immediately available for inspection by the executive director upon request.(d) An owner shall submit a copy of the operation and maintenance manual to the executive director within 30 days of a written request from the executive director.</content><note type="source"><p>Source Note: The provisions of this §217.16 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.17"><num value="217.17">§217.17</num><heading>Collection System Records</heading><content>An owner of a collection system shall maintain collection system records for the life of the project. An owner shall make the following records available to the executive director in accordance with §217.18(d) of this title (relating to Provisions that Apply to All Sections in this Chapter):(1) a copy of the final engineering report, construction drawings, and specifications for each project, as required by §217.10 and §217.13 of this title (relating to Final Engineering Report; and Final Construction Drawings and Specifications);(2) a copy of all documents required by this chapter, including correspondence with the executive director regarding approval of plans and specifications for each project; and(3) a copy of all manufacturer's recommendations relied on in the design of each project.</content><note type="source"><p>Source Note: The provisions of this §217.17 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scA/s217.18"><num value="217.18">§217.18</num><heading>Provisions that Apply to All Sections in this Chapter</heading><content>(a) Whenever this chapter requires a "design," such designed component of the wastewater treatment facility or collection system must also be installed, operated, and maintained to meet the design requirement.(b) All safety and emergency equipment required in this chapter must be operational for its intended use and maintained in a readily accessible location.(c) Copies of all written executive director approvals must be kept with all other records required to be maintained by the wastewater treatment facility.(d) Copies of all records required to be maintained by the wastewater treatment facility:(1) must be readily available for inspection by the executive director within 24 hours after either a written or verbal request; and(2) must be submitted to the executive director within 15 days of a written request.</content><note type="source"><p>Source Note: The provisions of this §217.18 adopted to be effective December 4, 2015, 40 TexReg 8254.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c217/scB"><num value="B">SUBCHAPTER B</num><heading>WASTEWATER TREATMENT FACILITY DESIGN REQUIREMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c217/scB/s217.31"><num value="217.31">§217.31</num><heading>Applicability</heading><content>This subchapter details the design values that an owner shall use when determining the size of any wastewater treatment facility component. This subchapter applies to the treatment design for a new wastewater treatment facility, the alteration of an existing wastewater treatment facility, the re-rating of an existing wastewater treatment facility, and to an existing wastewater treatment facility that is required to apply for a new permit.</content><note type="source"><p>Source Note: The provisions of this §217.31 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scB/s217.32"><num value="217.32">§217.32</num><heading>Organic Loadings and Flows for New Wastewater Treatment Facilities</heading><content>(a) The design of a new wastewater treatment facility must be based on the flows and loadings in paragraphs (1) - (3) of this subsection, unless subsection (b) of this section applies.(1) Design flow.(A) If the flow is greater than or equal to 1.0 million gallons per day, as determined by multiplying the per capita flow in Table B.1. in paragraph (3) of this subsection by the number of individuals in the service area, then the design flow is the flow calculated from the table.(B) If the flow is less than 1.0 million gallons per day as determined by multiplying the per capita flow in Table B.1. in paragraph (3) of this subsection by the number of individuals in the service area, then the design flow is determined by multiplying the average annual flow calculated from the table by a factor of at least 1.5.(C) The design flow must be based on the flow authorized in the wastewater treatment facility's wastewater permit.(2) Peak flow. When site-specific data is unavailable, the peak flow must be determined by multiplying the design flow by a factor of at least 4.0. If site-specific data or projections are available, the peak flow must be based on the site-specific data.(A) If the average daily peaking factor at a wastewater treatment facility exceeds 4.0, the actual daily peaking factor must be used to calculate the peak flow, unless flow equalization is provided. (B) If a wastewater treatment facility experiences occasional peak events with a peaking factor that exceeds 5.0, the event-based peaking factor must be used to calculate the peak flow, unless flow equalization is provided.(C) In a wastewater treatment facility with flow equalization, the subsequent treatment units may be designed for a lower estimated peak flow. The engineering report shall include data that supports the lower estimated peak flow.(D) A treatment unit, pipe, weir, flume, disinfection unit, or any other treatment unit that is flow limited must be sized to transport or treat the peak flow.(3) Design organic loading. If available, actual organic loading data must be used as the basis for the design of the wastewater treatment facility. If actual organic loading data is not available, the design organic load must be determined by using the following table. The design organic load is determined by multiplying the annual average flow from the projected uses by the corresponding influent concentrations:Attached Graphic(b) An owner designing a new wastewater treatment facility that will serve the same service area as an existing wastewater treatment facility must use historical data from the existing wastewater treatment facility to design the new wastewater treatment facility, if there is enough historical data to meet the needs of §217.34 of this title (relating to Organic Loadings and Flows for Existing Wastewater Treatment Facilities, Re-Ratings, and Alterations). The engineering report must justify the design conclusions that are based on existing data.</content><note type="source"><p>Source Note: The provisions of this §217.32 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scB/s217.33"><num value="217.33">§217.33</num><heading>Flow Measurement</heading><content>(a) A wastewater treatment facility must include a means of effluent flow measurement with less than 10% error, or the manufacturer's error tolerance, whichever is less, throughout the expected range of flows.(b) An effluent flow-measuring device must have an open channel to allow for easy inspection, calibration, and cleaning.(c) Flow measurement must use a combination of primary and secondary flow measuring devices.(1) Primary flow measuring devices.(A) A primary flow measuring device must include a weir or a flume.(B) A primary flow measuring device must have a non-corrosive ruler (staff gauge) that is graduated in no greater than 1/4 inch increments that are clearly visible.(C) A primary flow measuring device must allow for manual measurement of water depth.(2) Weirs.(A) A channel approach section to a weir must be straight for a length at least 20 times the maximum expected head height on a weir at peak flow. An owner may use manufacturer's recommendations in lieu of this requirement if approved in writing by the executive director.(B) The minimum distance between a channel bottom and a weir crest must be at least twice the maximum head height on the weir at peak flow, or 1.0 foot, whichever is greater.(C) The upstream edge of a weir must not be corroded.(D) The crest of a weir must be exactly level to ensure a uniform depth of flow.(E) The upstream face of a weir must be smooth and perpendicular to the axis of the channel in both the horizontal and vertical directions.(F) A secondary flow measuring device must be installed:(i) upstream of the weir at a distance of three times the maximum head height on a weir at peak flow; or(ii) at the location and distance recommended by the equipment manufacturer.(3) Flumes.(A) A flume must be located in a straight section of an open channel.(B) A flume must be installed in accordance with the manufacturer's recommendations.(C) A flume must distribute the approaching flow evenly across a flow channel to preclude turbulence and waves.(4) Secondary flow measuring devices.(A) A wastewater treatment facility must use a totalizing meter as a secondary flow measuring device, which must measure the liquid level discharging through the primary flow measuring device and convert this liquid level into a flow rate that is integrated to a totalized flow.(B) A secondary flow measuring device must be installed in accordance with the manufacturer's recommendations and in a manner that reduces turbulence and promotes laminar flow.(C) A secondary flow measuring device must include a display of the instantaneous flow rate and a means of reading the totalized flow.(D) A secondary flow measuring device must be designed to allow recalibration.(E) A secondary flow measuring device must not interfere with the accuracy of the primary flow measuring device.</content><note type="source"><p>Source Note: The provisions of this §217.33 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scB/s217.34"><num value="217.34">§217.34</num><heading>Organic Loadings and Flows for Existing Wastewater Treatment Facilities, Re-Ratings, and Alterations</heading><content>An owner who proposes to alter, or re-rate an existing wastewater treatment facility, or to obtain approval for an existing wastewater treatment facility after that wastewater treatment facility's permit has expired, is required to use the wastewater treatment facility's current operating data for flow and organic loading (biochemical oxygen demand or carbonaceous biochemical oxygen demand, total suspended solids, and ammonia nitrogen, as required by the permit) as the design basis. The compiled data must meet the criteria outlined in paragraphs (1) and (2) of this section.(1) Flows.(A) When an existing wastewater treatment facility is to be re-rated or altered, the wastewater treatment facility's data for the last five years must be used to determine the annual average flow, the maximum monthly average flow, the peak flow, the ratio of maximum monthly average flow to annual average flow, and the ratio of the peak flow to the annual average flow. All flow data for these analyses must be collected by a totalizing meter. If the wastewater treatment facility is less than five years old, all existing data must be used. All calculations and assumptions must be included in the engineering report.(B) An analysis of the peak flow must be based on a frequency distribution analysis using flow charts for each individual day.(C) The projected peak flow must be the result of collection system monitoring or modeling based on a two-year, 24-hour storm event for the service area.(D) For a wastewater treatment facility that will not be affected by future growth, the design flow for a re-rating or alteration must be calculated using the wastewater treatment facility's average flow plus one standard deviation.(E) For a wastewater treatment facility that will be affected by future growth, the design flow for a re-rating or alteration must be based on future flow, calculated using anticipated changes from the existing flow. The design analysis may use a linear regression or other appropriate statistical method for predicting the design flow when significant data exists.(2) Organic loadings.(A) When an existing wastewater treatment facility is to be re-rated or altered, the design organic loading must be calculated based on the average daily organic loading.(i) The data used to determine the organic loading must be from the analyses of at least three composite samples of the influent wastewater per week, taken during days with representative flow, for a period of at least one year. If samples are collected at a frequency of less than three times per week or less than a three-part composite sample, the executive director may require an owner to collect and analyze additional samples that are representative of actual conditions at the wastewater treatment facility. The data must include samples collected during both wet and dry weather conditions.(ii) If the samples are not 24-hour flow-weighted composite samples, the samples must be representative of the peak loading.(iii) Sample data must include the following parameters, at a minimum, unless monitoring of the parameter is not required by the wastewater permit:(I) five-day carbonaceous biochemical oxygen demand or five-day biochemical oxygen demand;(II) total suspended solids; and(III) ammonia-nitrogen.(B) The owner must provide an engineering analysis for the minimum sampling period in the engineering report, which must include:(i) a summary of the monthly data;(ii) the average monthly load; and(iii) the standard deviation of the monthly data.(C) For a wastewater treatment facility that will not be affected by future growth, the design organic loading for a re-rating or alteration must be calculated using the wastewater treatment facility's average organic loading plus one standard deviation.(D) For a wastewater treatment facility that will be affected by future growth, the design organic loading for a re-rating or alteration must be based on future loading calculated using anticipated changes from the existing loading. The design analysis may use a linear regression or other appropriate statistical method for predicting the design organic load when significant data exists.(E) The design organic loading must be used to determine the required size of each treatment unit that provides treatment of organic waste.</content><note type="source"><p>Source Note: The provisions of this §217.34 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scB/s217.35"><num value="217.35">§217.35</num><heading>One Hundred-Year Flood Plain Requirements</heading><content>(a) If a 100-year flood plain is located within 1,000 feet of the site of a wastewater treatment facility, the 100-year flood plain must be shown on the site plan. A flood plain determination must be based on a superimposition of the 100-year flood elevation on the most accurate available topography and elevation data for the site.(1) A 100-year flood plain must be based on the Federal Emergency Management Agency (FEMA) Flood Insurance Study in effect at the time the plans and specifications are submitted to the executive director. FEMA maps are prima facie evidence of flood plain locations.(2) An appropriate flood insurance rate map or Flood Insurance Study profile, adjusted to the site's vertical data, may be used to determine flood elevations.(3) If a site is adjacent to a FEMA 100-year flood delineation, but has no flood elevation published, a 100-year flood elevation may be determined by overlaying the effective FEMA delineation over a United States Geological Survey Quadrangle Map and interpolating a flood elevation.(4) If FEMA flood plain information is not available, the engineering report shall include a 100-year flood elevation based on the best information available.(b) The 100-year flood plain must be shown on the profile drawings.(1) The FEMA 100-year water surface elevation must be marked on a hydraulic profile of a wastewater treatment facility in accordance with the vertical scale of the drawing.(2) If a wastewater treatment facility will occupy less than 1,000 feet of shoreline along a flood plain, the profile must show a single line coincident with the elevation of the centerline of any outfall pipe.(3) If a wastewater treatment facility will occupy 1,000 feet or more of shoreline along a flood plain, the profile must show the water surface elevation at both the upstream and downstream limits of any protective structure for the wastewater treatment facility.(c) The executive director will not approve a design of a proposed treatment unit within a 100-year flood plain, unless the design provides protection for all open process tanks and electric units from inundation during a 100-year flood event.</content><note type="source"><p>Source Note: The provisions of this §217.35 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scB/s217.36"><num value="217.36">§217.36</num><heading>Emergency Power Requirements</heading><content>(a) A wastewater treatment facility must be designed to prevent the discharge of untreated or partially treated wastewater during electrical power outages.(b) A wastewater treatment facility must include an audiovisual alarm system. The alarm system must transmit all alarm conditions through the use of an auto-dialer system, a Supervisory Control and Data Acquisition (SCADA) system, or a telemetering system connected to a continuously monitored location. Audiovisual alarms are not required if the SCADA system notifies the operator about communication loss, in addition to all other alarm conditions.(c) An alarm system must self-activate if:(1) the power supply is interrupted;(2) a pump fails; or(3) a high water level alarm is triggered.(d) An alarm system must include self-testing capability at the control panel.(e) An owner shall determine the reliability of the existing commercial power service for a wastewater treatment facility using records from the past 60 consecutive months from the electric utility that serves the wastewater treatment facility. The entire record must be used if 60 months of records are not available. The owner must provide the power outage records and the reliability determination in the engineering report. The records must:(1) be in writing;(2) be on the electric utility's letterhead and bear a signature of an electric utility employee who has knowledge of data about power outages;(3) identify the location of the wastewater treatment facility;(4) list the total number of power outages that have occurred during the past 60 consecutive months; and(5) indicate the date and duration of each recorded power outage.(f) The executive director may consider documentation of commercial power system upgrades and their effects on the reliability of commercial power. Documentation of upgrades and their effects on power reliability must be submitted to the executive director in writing on the electric utility's letterhead and must bear the signature of an electric utility employee.(g) Systems for preventing discharge of untreated or partially treated wastewater must operate for a duration at least equal to the longest power outage on record for the past 60 consecutive months, or at least 20 minutes, whichever is longer. The design must consider the effects of peak flow, inflow, and infiltration. If the longest power outage on record for the past 60 consecutive months is greater than 48 hours and generators will be used to provide backup power, then the owner must have a contract in place that guarantees fuel supply during an emergency. The owner must also have sufficient storage capacity at the wastewater treatment facility for the fuel for the duration of the emergency.(h) Systems for preventing discharge of untreated or partially treated wastewater at a wastewater treatment facility must either be permanent features of the wastewater treatment facility, or be temporary power systems that are capable of being made operational before an unauthorized discharge occurs during any electrical power outage. The engineer must describe how a temporary power system will be deployed and operated in the engineering report, and must address deployment during all types of weather events that might reasonably cause a power outage at the wastewater treatment facility.(i) Systems for preventing discharge of untreated or partially treated wastewater may include any combination of alternate power sources, on-site generators, interceptor systems, on-site retention, collection system storage, portable generators, mechanical backup systems, or other similar systems.(1) Collection system storage may not be used as a sole means of preventing the discharge of untreated or partially treated wastewater during a power outage.(2) The main power source and an alternate power source may not be provided by the same power plant.(3) Portable generators and pumps may only be used to guarantee service if:(A) a tested quick-connect mechanism and a properly sized automatic transfer switch is provided where the generator will be used; and(B) a licensed operator that is knowledgeable in operation of the portable generators and pumps will be on call 24 hours per day every day.(j) The engineering report must include a description of emergency operation of the wastewater treatment facility. Treatment units that require continuous operation during a power outage must be identified in the engineering report. The minimum requirements for the systems that must be operational and additional engineering report requirements are listed in paragraphs (1) - (4) of this subsection.(1) A wastewater treatment facility must be designed to achieve primary treatment and to disinfect the wastewater to ensure compliance with the bacteria limits established in the wastewater treatment facility's wastewater permit during all power outages, including outages that are longer than outage predicted based on the power reliability determination required in subsection (e) of this section.(2) All components of the disinfection system, including any reclaimed water used to make a chemical solution, must operate at full capacity during all power outages according to the requirements of §217.37 of the title (relating to Disinfection System Power Reliability), including outages that are longer than outage predicted based on the power reliability determination required in subsection (e) of this section.(3) Return activated sludge pumps must be operational during any power outage.(4) If portable generators or pumps are used to guarantee service, the engineering report must include:(A) the storage location of each generator and pump;(B) the amount of time that will be needed to transport each generator or pump to where it will be used;(C) the treatment units to which each generator or pump is designated as a backup; and(D) the routine maintenance and upkeep that will be done for each portable generator and pump to ensure that they will be operational when needed.</content><note type="source"><p>Source Note: The provisions of this §217.36 adopted to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scB/s217.37"><num value="217.37">§217.37</num><heading>Disinfection System Power Reliability</heading><content>(a) A disinfection system must include a backup power system capable of providing sufficient power to operate continuously during all power outages in accordance with the requirements of §217.36 of this title (relating to Emergency Power Requirements), including outages that are longer than outage predicted based on the power reliability determination required in §217.36(e) of this title.(b) A backup power system must automatically restart the disinfection system during a power outage.(c) A backup power system must meet the requirements of §217.36 of this title.</content><note type="source"><p>Source Note: The provisions of this §217.37 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scB/s217.38"><num value="217.38">§217.38</num><heading>Buffer Zones and Odor Abatement</heading><content>(a) The buffer zone requirements in §309.13 of this title (relating to Unsuitable Site Characteristics) apply to all treatment units in a wastewater treatment facility.(b) The engineering report must include the design of any odor abatement measures intended to comply with §309.13(e) - (g) of this title.(c) An odor abatement measure that is used in lieu of buffer zones is subject to review in accordance with §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals).</content><note type="source"><p>Source Note: The provisions of this §217.38 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scB/s217.39"><num value="217.39">§217.39</num><heading>Wastewater Treatment Facility Use of Reclaimed Water</heading><content>(a) A wastewater treatment facility must use reclaimed water in place of potable water in all treatment units, for wash down water, and for irrigating the grounds within the boundaries of the wastewater treatment facility.(b) A wastewater treatment facility must include a meter to measure reclaimed water use in the wastewater treatment facility.(c) Reclaimed water may only be used after treatment in a secondary treatment process. Untreated or partially treated wastewater may not be used as reclaimed water. A reclaimed water system must provide for screening or filtration, a backup pump with controls, and a pressure-sustaining device such as a hydro-pneumatic tank.(d) If disinfection is part of the treatment, reclaimed water may only be used after it has been disinfected.(e) Reclaimed water may be used within the wastewater treatment facility with no further authorization from the executive director if it is used in accordance with this section and §210.4(c) of this title (relating to Notification).</content><note type="source"><p>Source Note: The provisions of this §217.39 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scB/s217.40"><num value="217.40">§217.40</num><heading>Signs with Emergency Contact Information</heading><content>A sign must be posted at the entrance of a wastewater treatment facility to provide the wastewater treatment facility name and current 24-hour contact information. The sign must be clearly visible and legible, with block lettering that is at least 1.5 inches tall.</content><note type="source"><p>Source Note: The provisions of this §217.40 adopted to be effective December 4, 2015, 40 TexReg 8254.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c217/scC"><num value="C">SUBCHAPTER C</num><heading>CONVENTIONAL COLLECTION SYSTEMS</heading><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.51"><num value="217.51">§217.51</num><heading>Applicability</heading><content>This subchapter applies to the design, construction, operation, maintenance, and testing of conventional gravity collection systems, conventional wastewater lift stations, force mains for wastewater transport, and reclaimed water conveyance systems.</content><note type="source"><p>Source Note: The provisions of this §217.51 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.52"><num value="217.52">§217.52</num><heading>Edwards Aquifer</heading><content>An owner who plans to install a collection system located over the Edwards Aquifer recharge zone, as defined in §213.3 of this title (relating to Definitions), must design and install the collection system in accordance with Chapter 213 of this title (relating to Edwards Aquifer), in addition to this subchapter.</content><note type="source"><p>Source Note: The provisions of this §217.52 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.53"><num value="217.53">§217.53</num><heading>Pipe Design</heading><content>(a) Flow Design Basis. An owner must use the requirements of this section to design a gravity collection system.(1) A collection system must be designed to transport the peak flow from the service area, plus infiltration and inflow. The design must minimize inflow and infiltration. Flow calculations must be included in the engineering report.(2) The flow calculations must include the details of the average flow, the flow peaking factor, and the infiltration and inflow.(3) The flow calculations must include the flow expected in the wastewater treatment facility immediately upon completion of construction and at the end of a 50-year period following construction.(b) Gravity Pipe Materials.(1) An owner must identify in the engineering report the proposed gravity collection system pipe with its appropriate American Society for Testing and Materials (ASTM), American National Standards Institute (ANSI), or American Water Works Association (AWWA) standard numbers for both quality control (dimensions, tolerances, pipe stiffness, dimensional ratio, etc.) and installation (bedding, backfill, etc.).(2) The selection of gravity collection system pipes must be based on: (A) the characteristics of the wastewater conveyed; (B) the possibility of septic conditions; (C) the ability to minimize inflow and infiltration; (D) any external forces; (E) any groundwater conditions; (F) the internal pressures; and (G) the abrasion and corrosion resistance of the pipe material.(c) Joints for Gravity Pipes.(1) The specifications for joints for gravity pipes must include the materials and methods used in making joints.(2) Materials used for gravity pipe joints must prevent inflow, infiltration, and root entrance. A joint must: (A) include rubber gaskets; (B) include polyvinyl chloride (PVC) compression joints; (C) include high density polyethylene compression joints; (D) be welded; or(E) be heat fused.(3) The specifications must include ASTM, AWWA, ANSI, or other appropriate national reference standards for the pipe joints.(d) Separation Distances.(1) Collection system pipes must be installed in trenches separate from water supply trenches.(2) Wherever possible, a collection system pipe must be located below a water supply pipe. If a collection system pipe cannot be located below a water supply pipe, the owner must justify in the engineering report why it is not possible to locate the collection system pipe below the public water supply pipe.(3) Wherever possible, collection system pipes and manholes must be located at least nine feet from all water supply pipes. If a collection system pipe or manhole cannot be located at least nine feet away from a water supply pipe, the owner must justify in the engineering report why it is not possible to provide at least nine feet of separation. Table C.1. in Figure: 30 TAC §217.53(d)(3) provides a reference to paragraphs in this subsection that apply if a collection system pipe or manhole cannot be located at least nine feet away from a water supply pipe.Attached Graphic(4) If a collection system pipe is located above a water supply pipe and runs parallel to the water supply pipe, each portion of the collection system pipe within nine feet of the water supply pipe must be encased. The casing pipe must be constructed of at least 150 per square inch (psi) pressure class pipe that:(A) encases the entire length of collection system pipe that is within nine feet of the water supply pipe; (B) is sealed at both ends with cement grout or a manufactured seal; (C) is at least two nominal sizes larger than the wastewater collection pipe; and (D) is supported by spacers between the collection system pipe and the encasing pipe at a maximum of five-foot intervals.(5) If a collection system pipe crosses above a water supply pipe, each portion of the collection system pipe within nine feet of the water supply pipe must either be encased in a casing pipe according to subparagraph (A) of this paragraph, or must be constructed using at least 150 psi pressure class pipe according to subparagraph (B) of this paragraph.(A) A casing pipe for a collection system pipe that crosses above a water supply pipe must be constructed of at least 150 psi pressure class pipe that is: (i) sealed at both ends with cement grout or a manufactured seal; (ii) at least two nominal sizes larger than the wastewater collection pipe; and (iii) supported by spacers between the collection system pipe and the encasing pipe at a maximum of five-foot intervals.(B) A collection system pipe that crosses above a water supply pipe must be constructed of at least 150 psi pressure class, corrosion-resistant, non-brittle pipe and must use manufacturer-approved adapters. Gasketed joints, compression joints, and other non-bonded joints must be designed to seal at atmospheric pressure.(6) If a collection system pipe is located below a water supply pipe and runs parallel to the water supply pipe, each portion of the collection system pipe within nine feet of the water supply pipe must either be constructed using at least 150 psi pressure class pipe according to subparagraph (A) of this paragraph, or must be encased in a casing pipe according to subparagraph (B) of this paragraph.(A) A collection system pipe that runs parallel to and below a water supply pipe must be constructed of at least 150 psi pressure class, corrosion-resistant, non-brittle pipe that:(i) is located at least two vertical feet below the water supply pipe; (ii) is located at least four horizontal feet away from the water supply pipe; and(iii) includes joints that are designed to seal at atmospheric pressure.(B) A casing pipe for a collection system pipe that runs parallel below a water supply pipe must be constructed of at least 150 psi pressure class pipe that:(i) is sealed at both ends with cement grout or a manufactured seal; (ii) is at least two nominal sizes larger than the wastewater collection pipe; and (iii) is supported by spacers between the collection system pipe and the encasing pipe at a maximum of five-foot intervals.(7) If a collection system pipe crosses below a water supply pipe, each portion of the collection system pipe within nine feet of the water supply pipe must either be constructed using at least 150 psi pressure class pipe according to subparagraph (A) of this paragraph, or must be encased in cement-stabilized sand according to subparagraph (B) of this paragraph, or must be encased in a casing pipe according to subparagraph (C) of this paragraph.(A) A collection system that crosses below a water supply pipe and is constructed of at least 150 psi pressure class, corrosion-resistant, non-brittle pipe must:(i) have at least six inches of separation between the outsides of the pipes;(ii) be centered on the crossing; (iii) be at least 18 feet long; and(iv) terminate at joints that are designed to seal at atmospheric pressure.(B) A collection system pipe that crosses below a water supply pipe and is constructed of any material other than at least 150 psi pressure class, corrosion-resistant, non-brittle pipe must:(i) have at least two feet of separation between the outsides of the pipes; and (iii) be encased in cement-stabilized sand backfill that meets the requirements of subparagraph (D) of this paragraph.(C) A casing pipe for a collection system pipe that crosses below a water supply pipe must be constructed of at least 150 psi pressure class pipe that is: (i) sealed at both ends with cement grout or a manufactured seal; (ii) at least two nominal sizes larger than the wastewater collection pipe; and (iii) supported by spacers between the collection system pipe and the encasing pipe at a maximum of five-foot intervals.(D) Cement-stabilized sand for encasing collection system pipes must:(i) include at least 160 pounds of cement for every cubic yard of sand; (ii) be installed beginning one-quarter pipe diameter below the centerline of the collection system pipe; (iii) be installed ending one full pipe diameter above the top of the collection system pipe, or 12 inches above the top of the collection system pipe, whichever is greater.(8) If a nine-foot separation distance between a manhole and a water supply pipe cannot be achieved, the manhole must either:(A) have no measurable leakage during a leakage test conducted according to the requirements in §217.58 of this title (relating to Testing Requirements for Manholes); or(B) have all portions of the manhole within nine feet of a water supply pipe encased in at least one foot of cement stabilized sand that meets the requirements of paragraph (7)(D)(i) and (ii) of this subsection.(e) Building Laterals and Taps. Building laterals and taps must: (1) include a manufactured fitting that prevents infiltration and root entrance; (2) prevent service lines from protruding into the collection system pipe; and (3) protect the mechanical and structural integrity of a collection system.(f) Bore or Tunnel for Crossings. The spacing of supports for carrier pipe through casings must maintain the grade, slope, and structural integrity of the pipe as required by subsection (k) of this section.(g) Corrosion Potential of Collection System Pipes.(1) The engineering report must include calculations or other information that demonstrate the structural integrity of a pipe during the minimum 50-year design life cycle if a pipe or an integral structural component of a pipe has potential to deteriorate when subjected to corrosive internal conditions, or if a pipe or component does not have a corrosion resistant liner or protective coating installed by the pipe manufacturer.(2) If the corrosion analysis indicates that corrosion will reduce the functional life of the pipe to less than 50 years based on the structural analysis in subsection (k) of this section, then the pipe must have a lining or protective coating that will extend the functional life to 50 years.(h) Odor Control. An owner shall implement odor control measures necessary to prevent a collection system from becoming a nuisance.(i) Active Geologic Faults.(1) An owner shall identify all active faults within the boundaries of the collection system project and minimize the number of collection system lines crossing faults.(A) If the crossing of a collection system over an active fault is unavoidable, the engineering report must specify design features that protect the structural integrity of a collection system in the event of movement of the fault.(B) If a collection system line crosses an active fault line, the design must specify: (i) joints that provide maximum flexibility; and (ii) manholes on each side of the fault that would allow a portable pump to be used to prevent unauthorized discharge of wastewater in the event of a collection system failure.(2) An owner shall not install a collection system service connection within 50 feet of an active fault.(j) Capacity Requirements.(1) An owner must ensure that a collection system's capacity is sufficient to serve the estimated future population of the area served by the project, including institutional, industrial, and commercial flows.(2) An owner must include calculations in the engineering report that demonstrate the hydraulic capacity of a collection system, accounting for the peak flow of domestic wastewater, peak flow of wastewater from industrial sites, and maximum expected infiltration rates.(3) An owner must ensure that the collection system has capacity to prevent a surcharge.(4) An owner must ensure that a gravity pipe is at least 6.0 inches in diameter.(5) Any connection between a stormwater collection system and a wastewater collection system is prohibited.(6) An owner may use the data from an existing collection system for design purposes. In the absence of existing data, a design must use data from a system with similar characteristics, including:(A) location;(B) inflow and infiltration characteristics;(C) peak flows;(D) pipe materials;(E) customer base; and(F) any other characteristics required by the executive director.(7) New collection systems.(A) The sizing of pipe for a new collection system must be based on an engineering analysis of initial and future peak flow of domestic wastewater, peak flow of waste from industrial sites, and maximum expected infiltration rates.(B) A new collection system design must be sized for the peak flow, which is based on the estimated daily wastewater flow contribution as shown in Table B.1. in Figure: 30 TAC §217.32(a)(3) of this title (relating to Organic Loadings and Flows for New Wastewater Treatment Facilities).(k) Structural Analysis.(1) An owner must ensure that a collection system is designed to have a minimum structural life of 50 years.(2) For flexible pipe used in a collection system, which is pipe that will deflect at least 2% without structural distress, the engineering report must include: (A) live load calculations; (B) allowable buckling pressure determinations; (C) prism load calculations; (D) wall crushing determinations; (E) strain prediction calculations; (F) calculations that quantify long-term pipe deflection;(G) the method of determining the modulus of soil reaction for bedding material and in-situ material; (H) pipe diameter and material with reference to appropriate standards; (I) modulus of elasticity; (J) tensile strength; (K) pipe stiffness, or ring stiffness constant converted to pipe stiffness; (L) Leonhardt's zeta factor; (M) trench width; (N) depth of cover; (O) water table elevation; and (P) unit weight of soil.(3) For trench installations, the design must specify a minimum stiffness requirement to ensure ease of handling, transportation, and construction. Pipe stiffness must be related to the ring stiffness constant by Equation C.1. in Figure: 30 TAC §217.53(k)(3)Attached Graphic(4) The owner is not required to perform the structural calculations in paragraphs (2) and (3) of this subsection, if the pipe is installed and tested in accordance with all other requirements of this subchapter and meets all of the following: (A) the pipe is installed using an open trench design; (B) the pipe is flexible pipe with a pipe stiffness of 46 psi or greater; (C) the pipe is buried 17 feet or less from the ground surface; (D) the pipe has a diameter of 12 inches or less; (E) the modulus of soil reaction for the in-situ soil is 200 psi or greater; (F) there are no effects on the pipe due to live loads from vehicles driving over the pipe; (G) the unit weight of soil used for backfill is 120 pounds per cubic foot or less; and (H) the pipe trench width is 36 inches or greater.(5) A design analysis for rigid pipe installations must be included in the engineering report. The design analysis must include a structural analysis and all details necessary to verify that the structural strength is sufficient to withstand the expected stresses. For rigid pipes, the minimum strength for each class of pipe material and the appropriate standard must be included.(l) Minimum and Maximum Slopes.(1) All collection systems must contain slopes sufficient to allow a velocity not less than 2.0 feet per second when flowing at full capacity.(2) When site-specific data is not available, a collection system must be designed in accordance with the minimum and maximum slopes specified in this paragraph.(A) The slopes shown in the following table are based on Manning's formula with an assumed "n factor" of 0.013 and are the minimum acceptable slopes.Attached Graphic(i) The minimum acceptable "n" value for design of minimum pipe slopes is 0.013.(ii) The "n" value must take into consideration the slime, grit, and grease layers that will affect hydraulics or hinder flow as a pipe ages.(B) If a velocity greater than 10 feet per second will occur when a pipe flows full, based on Manning's formula, shown in Equation C.2. in Figure: 30 TAC §217.53(l)(2)(B), using the "n" value for new pipe recommended by the manufacturer, the collection system must be designed to protect against pipe and bedding displacement. Attached Graphic(m) Alignment.(1) Alignment Requirements. A gravity collection system must be laid with a uniform grade and straight alignment between manholes, if possible. All deviations from uniform grade and straight alignment must be justified in the engineering report.(2) Prohibited Deviations.(A) Deviation from uniform grade (e.g., grade breaks or vertical curves) without manholes is prohibited if the open cut construction method is used, except as provided in subparagraph (B) of this paragraph.(B) For segmented pipe, a horizontal curve must not be accomplished by bending the pipe unless the pipe joints are welded or heat-fused. Horizontal curves must be accomplished using additional manholes or joint offset. Horizontal curves for non-segmented, welded, or heat-fused pipes must follow the manufacturer's recommendations.(C) A construction method that bends a pipe joint is prohibited, unless the joints are offset less than the least of the following: (i) five degrees of deflection; (ii) 80% of the manufacturer's recommended maximum joint offset; or (iii) 80% of the appropriate ASTM, AWWA, ANSI, or other nationally established standard for joint offset.(3) Calculations and Plan Drawings. The calculations for horizontal curvature must be included in the engineering report. Details of the proposed curvature must be displayed on the plan drawings. (4) Manhole Spacing. The maximum allowable manhole spacing for collection systems with horizontal curvature is 300 feet. A manhole must be at the point of curvature and the point of termination of a curve.(n) Inverted Siphons and Sag Pipes.(1) A sag pipe must include: (A) two or more barrels; (B) a minimum pipe diameter of 6.0 inches; and (C) the necessary appurtenances for convenient and routine flushing and maintenance.(2) A manhole must include adequate clearance for rodding and cleaning.(3) Sag pipes must be sized and designed with sufficient head to achieve a velocity of at least 3.0 feet per second at initial and design flows.(4) The arrangement of inlet and outlet details must divert the normal flow to one barrel.(5) A portion of the collection system with the inverted siphon must allow any barrel to be temporarily taken out of service for cleaning.(6) Provisions must be made to allow cleaning across each bend with equipment available to the entity operating the collection system.(7) A sag pipe must prevent nuisance odors.(8) Inverted siphons and sag pipes must be pressure tested according to the requirement of §217.57 of this title (relating to Testing Requirements for Installation of Gravity Collection System Pipes).(o) Bridged Sections.(1) Piping with restrained joints or monolithic pipe across a bridged section requires a manhole on each end.(2) A bridged section must withstand the hydraulic forces, including buoyancy, applied by the occurrence of a 100-year flood event.(3) A bridged section must be capable of withstanding impacts from debris.(4) Bank sections must be stabilized to prevent erosion.(5) Bridge supports must be designed to ensure that a pipe has adequate grade, slope, and structural integrity.</content><note type="source"><p>Source Note: The provisions of this §217.53 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.54"><num value="217.54">§217.54</num><heading>Criteria for Laying Pipe</heading><content>(a) Pipe Embedment.(1) A rigid pipe must be laid with bedding, haunching, and initial backfill that will meet the appropriate standards and will support the anticipated load. The bedding classes that are allowed are A, B, or C, as described in American Society for Testing and Materials (ASTM) C 12, American National Standards Institute (ANSI) A 106.2, Water Environment Federation Manual of Practice No. 9, or American Society of Civil Engineers (ASCE) MOP 37.(2) A flexible pipe must be laid with bedding, haunching, and initial backfill that will meet the appropriate standards and will support the anticipated load. The bedding classes that are allowed are IA, IB, II, or III, as described in ASTM D-2321 or ANSI K65.171.(3) Debris, large clods, stones that are greater than six inches in diameter, organic matter, and other unstable materials are prohibited as bedding, haunching, or initial backfill.(4) Backfill must not disturb the alignment of a collection system pipe.(5) If a fracture, fault zone, cave, or solutional modification to the rock strata that would prevent pipe bedding is encountered during construction, an owner must halt construction until an engineer prepares a written report, which must be submitted with the final engineering report, detailing how construction will accommodate these site conditions.(b) Compaction.(1) Compaction of the pipe embedment must meet the manufacturer's recommendations for the collection system pipes used in a project.(2) Compaction of the pipe embedment must provide the modulus of soil reaction for the bedding material necessary to ensure a collection system pipe's structural integrity as required by §217.53 of this title (relating to Pipe Design).(3) The placement of the backfill above a pipe must not affect the structural integrity of a pipe.(c) Embedment Thickness.(1) A minimum clearance of 6.0 inches below and on each side of the bell of all pipes to the trench walls and floor is required.(2) The embedment material used for haunching and initial backfill must be installed to a minimum depth of 12 inches above the crown of a pipe.(d) Trench Width.(1) The width of a trench must allow a pipe to be laid and jointed properly and must allow the backfill to be placed and compacted as needed.(2) The maximum and minimum trench width needed for safety and a pipe's structural integrity must be included in the engineering report.(3) The width of a trench must allow proper and safe placement and compaction of haunching materials in accordance with the standards in subsection (a) of this section.(4) The space between a pipe and a trench wall must be wider than the compaction equipment used in the pipe zone.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §217.54 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.55"><num value="217.55">§217.55</num><heading>Manholes and Related Structures</heading><content>(a) An owner must include manholes in a collection system at: (1) all points of change in alignment, grade, or nominal diameter; (2) at all intersections of collection system pipes; and (3) at the end of all pipes that may be extended at a future date.(b) Manholes placed at the end of a collection system pipe that may be extended in the future must include pipe stub outs with plugs.(c) A cleanout with watertight plugs may be installed in lieu of a manhole at the end of a collection system pipe if no extensions are anticipated.(d) Cleanout installations must pass all applicable testing requirements outlined for gravity collection pipes in §217.57 of this title (relating to Testing Requirements for Installation of Gravity Collection System Pipes).(e) A manhole must be made of monolithic, cast-in-place concrete, fiberglass, pre-cast concrete, high-density polyethylene, polymer concrete, or other material designed to withstand the anticipated live and static loads.(f) The use of bricks to adjust a manhole cover to grade or construct a manhole is prohibited. Adjustment rings used to adjust a manhole cover to grade must be constructed of concrete, high density polyethylene, or other material that is designed to withstand the anticipated live and static loads.(g) Manholes may not be spaced farther apart than the distances specified in the following table for a wastewater collection system with straight alignment and uniform grades. The executive director may approve different distances, in writing, if the owner has equipment that can clean longer distances.Attached Graphic(h) Tunnels are exempt from manhole spacing requirements.(i) A manhole must not be located in a stream bed or other area that prevents access to the manhole.(j) The inside diameter of a manhole must be no less than 48 inches. A manhole diameter must be sufficient to allow personnel and equipment to enter, exit, and work in the manhole, and to allow proper joining of the collection system pipes in the manhole wall.(k) Manholes must meet the following requirements for covers, inlets, and bases.(1) Manhole Covers.(A) A manhole where personnel entry is anticipated requires a clear opening with at least a 30 inch diameter.(B) A manhole located within a 100-year flood plain must be gasketed and bolted down to prevent inflow.(C) A manhole cover must be constructed of impervious material with no holes that could allow inflow.(D) A manhole cover that is located in a roadway must meet or exceed the American Association of State Highways and Transportation Officials standard M-306 for load bearing.(E) The engineering report must specify and the owner must follow an appropriate national reference standard for manhole gaskets.(F) Manhole covers must be constructed of cast iron, steel, non-metallic composite material, fiberglass, or other material approved in writing by the executive director.(2) Manhole Inverts.(A) The bottom of a manhole must contain a U-shaped channel that is a smooth continuation of the inlet and outlet pipes.(B) A manhole connected to pipes less than 15 inches in diameter must have a channel depth equal to at least half the largest pipe's diameter.(C) A manhole connected to a pipe that is at least 15 inches in diameter but not more than 24 inches in diameter must have a channel depth equal to at least three-fourths of the largest pipe's diameter.(D) A manhole connected to a pipe that is greater than 24 inches in diameter must have a channel depth equal to at least the largest pipe's diameter.(E) In a manhole with pipes of different sizes, the tops of all the pipes must be at the same elevation and flow channels in the invert must be sloped evenly from pipe to pipe to prevent backpressure. (F) A bench provided above a channel must slope at a minimum of 0.5 inch per foot.(G) A manhole invert must be filleted to prevent solids from being deposited if a collection system pipe enters a manhole higher than 24 inches above a manhole invert.(H) A collection system pipe entering a manhole more than 24 inches above an invert must have a drop pipe.(l) Steps are prohibited in a manhole.(m) Connections. A manhole-pipe connection must use watertight, size-on-size resilient connectors that allow for differential settlement and must conform to American Society for Testing and Materials C 923.(n) Venting.(1) An owner must ensure that the collection system is vented at least every 1,500 feet.(2) Vents must be designed to minimize inflow and must be located above a 100-year flood event elevation. (3) Tunnels must be vented in compliance with this subsection.(o) Cleanouts. A cleanout diameter must be at least equal to the diameter of the pipe to which it is attached.</content><note type="source"><p>Source Note: The provisions of this §217.55 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.56"><num value="217.56">§217.56</num><heading>Trenchless Pipe Installation</heading><content>(a) Trenchless technologies that may be used for installation of new collection system pipe include impact moling, pipe ramming, microtunneling, conventional tunneling, bore and jack, and horizontal directional drilling.(b) Trenchless technologies that may be used for replacement of collection system pipe include pipe bursting, pipe splitting, and pipe jacking.(c) Trenchless technologies that may be used for lining existing collection system pipes include epoxy spray lining, cured-in-place pipe, and sliplining. These technologies reduce the inside diameter of a pipe.(d) All other trenchless methods of installing, replacing, or repairing collection system pipe are non-conforming technologies subject to the requirements of §217.7(b) of this title (relating to Types of Plans and Specifications Approvals).(e) A collection system using a trenchless technology must be designed, installed, operated, maintained, and constructed in accordance with American Society for Testing and Materials (ASTM) or American Water Works Association (AWWA) standards with reference to materials used and construction procedures. In the absence of ASTM or AWWA standards, the executive director review may be based upon other recognized standards used by industry engineers.(f) The engineering report must include the following:(1) the trenchless method;(2) the type of pipe;(3) the type(s) of soil;(4) the pipe length and diameter;(5) the pipe slope;(6) the method for disconnecting and reconnecting lateral and service connections;(7) the provisions for flow bypass for existing system; and(8) the pipe standard.(g) Collection system pipe that is installed using a trenchless technology is subject to the testing requirements in §217.57 of this title (relating to Testing Requirements for Installation of Gravity Collection System Pipes) and §217.68 of this title (relating to Force Main Testing).</content><note type="source"><p>Source Note: The provisions of this §217.56 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.57"><num value="217.57">§217.57</num><heading>Testing Requirements for Installation of Gravity Collection System Pipes</heading><content>(a) For a collection system pipe that will transport wastewater by gravity flow, the design must specify an infiltration and exfiltration test or a low-pressure air test. The test must conform to the following requirements: (1) Low Pressure Air Test.(A) A low pressure air test must follow the procedures described in American Society for Testing and Materials (ASTM) C 828, ASTM C 924, or ASTM F 1417 or other procedure approved in writing by the executive director. The testing times listed in Table C.4. in Figure: 30 TAC §217.57(a)(1)(C) or Equation C.3 in Figure: 30 TAC §217.57(a)(1)(B)(ii) must be used, regardless of the testing procedure.(B) For sections of collection system pipe with an average inside diameter less than 36 inches, the following procedure applies, unless a pipe is to be tested as required by paragraph (2) of this subsection.(i) A pipe must be pressurized to 3.5 pounds per square inch (psi) gauge. If groundwater is present, then a pipe must be pressurized to 3.5 psi gauge greater than the pressure exerted by groundwater above the pipe.(ii) Once the pressure is stabilized, the minimum time allowable for the pressure to drop from 3.5 psi gauge to 2.5 psi gauge is computed from the following equation:Attached Graphic(C) Since a K value of less than 1.0 may not be used, the minimum testing time for each pipe diameter is shown in the following table:Attached Graphic(D) An owner may stop a test if no pressure loss has occurred during the first 25% of the calculated testing time.(E) If any pressure loss or leakage has occurred during the first 25% of a testing period, then the test must continue for the entire test duration as outlined above or until failure of the test.(F) Collection system pipes with a 27 inch or larger average inside diameter may be air tested at each joint instead of following the procedure outlined in this section.(G) A testing procedure for a pipe with an inside diameter greater than 33 inches must be approved in writing by the executive director.(2) Infiltration/Exfiltration Test.(A) The total exfiltration, as determined by a hydrostatic head test, must not exceed 10 gallons per inch of diameter per mile of pipe per 24 hours at a minimum test head of 2.0 feet above the crown of a pipe at an upstream manhole, or at least two feet above the existing groundwater level, whichever is greater.(B) An owner shall use an infiltration test in lieu of an exfiltration test when pipes are installed below the groundwater level.(C) If the quantity of infiltration or exfiltration exceeds the maximum quantity specified, an owner shall take remedial action in order to reduce the infiltration or exfiltration to an amount within the limits specified by Equation C.3. in Figure: 30 TAC §217.57(a)(1)(B)(ii) before putting the system into service. An owner shall retest a pipe following a remedial action according to the requirements of this chapter.(b) If a gravity collection system pipe is composed of flexible pipe, deflection testing is also required.(1) For a collection system pipe with an inside diameter less than 27 inches, deflection measurement requires a rigid mandrel.(A) Mandrel Sizing.(i) A rigid mandrel must have an outside diameter not less than 95% of the base inside diameter or average inside diameter of a pipe, as specified in the appropriate standard by the ASTM, American Water Works Association, UNI-BELL, or American National Standards Institute.(ii) If the mandrel diameter is not specified in the standard used in clause (i) of this subparagraph, the mandrel must have an outside diameter equal to 95% of the inside diameter of a pipe. In this case, the inside diameter of the pipe, for the purpose of determining the outside diameter of the mandrel, must equal the average outside diameter minus two minimum wall thicknesses for outside diameter controlled pipe and the average inside diameter for inside diameter controlled pipe.(iii) All mandrel dimensions must meet the standard used in clause (i) of this subparagraph.(B) Mandrel Design.(i) A mandrel must be constructed of a metal or a rigid plastic material that can withstand 200 psi without being deformed. Adjustable or flexible mandrels are prohibited.(ii) A mandrel must have an odd number of runners or legs.(iii) A mandrel must have nine or more runners or legs.(iv) The length of the mandrel's barrel section must equal at least 75% of the inside diameter of the collection system pipe.(v) Each mandrel size must use a separate proving ring.(C) Method Options.(i) An owner may not use television inspection as a substitute for a deflection test.(ii) If requested, the executive director may approve, in writing, the use of a deflectometer or a mandrel with removable legs or runners on a case-by-case basis.(D) Trenchless Testing. The executive director may exempt pipe sections installed by trenchless technologies from mandrel testing in writing on a case-by-case basis.(2) For a gravity collection system pipe with an inside diameter of 27 inches and greater, other test methods approved in writing by the executive director may be used to determine vertical deflection.(3) A deflection test method must be accurate to within plus or minus 0.2% deflection.(4) An owner shall not conduct a deflection test until at least 30 days after the final backfill.(5) Collection system pipe deflection must not exceed 5%.(6) If a pipe section fails a deflection test, an owner shall correct the problem immediately, and then must conduct a second test after the final backfill has been in place at least 30 days.(7) An owner shall not use any mechanical pulling devices during deflection testing.(8) An owner shall include a certification in the notice of completion required in §217.14 of this title (relating to Completion Notice), that the collection system passed the deflection tests.(c) An owner of a collection system must inspect the structural integrity of the collection system under the direction of an engineer during the construction and testing phases of the project.</content><note type="source"><p>Source Note: The provisions of this §217.57 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.58"><num value="217.58">§217.58</num><heading>Testing Requirements for Manholes</heading><content>(a) All manholes must pass a leakage test.(b) An owner shall test each manhole, after assembly and before backfilling, for leakage using hydrostatic exfiltration testing, vacuum testing, or any other method approved in writing by the executive director. A manhole must be tested separately and independently from the collection system pipes.(1) Hydrostatic Testing.(A) The maximum leakage rate for hydrostatic testing or any alternative test methods is 0.025 gallons per foot diameter per foot of manhole depth per hour.(B) To perform a hydrostatic test, an owner shall seal all wastewater pipes coming into the manhole with an internal pipe plug, fill the manhole with water, and maintain the test for at least one hour.(C) A test for concrete manholes may use a 24-hour wetting period before testing to allow saturation of the concrete.(2) Vacuum Testing. An owner must perform vacuum testing according to either subparagraph (A) or (B) of this paragraph. If a manhole fails the vacuum test, the owner must apply grout to the exterior of the excavated manhole before retesting the manhole.(A) Texas Test.(i) To perform a vacuum test, an owner shall plug all lift holes and exterior joints with a non-shrink grout and plug all pipes entering a manhole.(ii) Grout may not be placed in horizontal joints before testing.(iii) Stub-outs, manhole boots, and pipe plugs must be secured to prevent movement while a vacuum is drawn.(iv) An owner shall use a minimum 60 inch/lb torque wrench to tighten the external clamps that secure a test cover to the top of a manhole.(v) A test head must be placed at the inside of the top of a cone section, and the seal must be inflated in accordance with the manufacturer's recommendations.(vi) There must be a vacuum of 10 inches of mercury inside a manhole to perform a valid test.(vii) A test does not begin until after the vacuum pump is off.(viii) A manhole passes the test if after 2.0 minutes and with all valves closed, the vacuum is at least 9.0 inches of mercury.(B) American Society for Testing and Materials (ASTM) Test. The owner may require manhole testing that meets the requirements of ASTM D1244-11.</content><note type="source"><p>Source Note: The provisions of this §217.58 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.59"><num value="217.59">§217.59</num><heading>Lift Station Site Requirements</heading><content>(a) Site access.(1) A lift station must be located in a right-of-way or a permanent easement.(2) A lift station site must be accessible by truck during all weather conditions, including a 25-year, 24-hour rainfall event.(3) A road surface used to access a lift station must have a minimum width of 12 feet.(b) Security.(1) The design of a lift station, including all mechanical and electrical equipment, must restrict access by an unauthorized person.(2) A lift station must include an intruder-resistant fence, or must be completely enclosed by an intruder-resistant enclosure approved in writing by the executive director.(A) An intruder-resistant fence or intruder-resistant enclosure must be locked at each access point.(B) An intruder-resistant fence must be at least 6.0 feet tall, and the bottom of the fence must be close enough to surface grade to prevent human access.(C) An intruder-resistant fence must be constructed of wood, concrete, masonry, or metal. Other materials may be used, but only if approved in writing by the executive director.(D) The top of an intruder-resistant fence must have at least three strands of barbed wire. A fence that is at least 8.0 feet tall does not require barbed wire. The top of an intruder-resistant fence may have outwardly-directed iron bars spaced on four-inch centers instead of barbed wire.(3) Above-ground valves located outside of an intruder-resistant fence must be chained and locked to prevent unauthorized operation. A valve does not need to be chained if the valve is located below ground or if the valve is fully enclosed in an intruder-resistant enclosure designed to prevent unauthorized operation.(c) Flood Protection. The design of a lift station, including all electrical and mechanical equipment, must be designed to withstand and operate during a 100-year flood event, including wave action.(d) Odor Control. An owner shall implement odor control measures necessary to prevent a lift station from becoming a nuisance.</content><note type="source"><p>Source Note: The provisions of this §217.59 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.60"><num value="217.60">§217.60</num><heading>Lift Station, Wet Well, and Dry Well Designs</heading><content>(a) Pump Controls.(1) A lift station pump must operate automatically, based on the water level in a wet well. Pump controls must be designed to prevent surcharges in the collection system and must be designed to prevent adverse effects on the operation of the wastewater treatment facility.(2) The location of a wet well water level mechanism must ensure that the mechanism is unaffected by currents, rags, grease, or other floating materials.(3) A wet well water level mechanism must be accessible without entering the wet well.(4) Wet wells with a bubbler system require dual air supplies and dual controls.(5) Motor control centers must be mounted high enough above grade, but in no case less than 4.0 inches above grade, to prevent water intrusion and corrosion from standing water in the enclosure. Motor control centers must also be protected from the entrance of corrosive gases from wet wells or piping.(6) Electrical equipment and electrical connections in a wet well or a dry well must meet National Fire Protection Association 70 National Electrical Code® explosion prevention requirements, unless continuous ventilation is provided.(7) Electronic wet well level control systems must also use a float switch or similar manual backup.(8) Wet well control settings must be designed to discourage septic conditions in a lift station.(9) Wet well control settings must be designed to prevent overloading of downstream pipes and treatment units.(b) Wet Wells.(1) A wet well must be enclosed by watertight and gas tight walls.(2) A penetration through a wall of a wet well must be gas tight.(3) A wet well must not contain equipment requiring regular or routine inspection or maintenance, unless inspection and maintenance can be done without a person entering the wet well.(4) A gravity pipe discharging to a wet well must be located so that the invert elevation is above the liquid level of a pump's "on" setting.(5) Gate valves and check valves are prohibited in a wet well.(6) Gate valves and check valves may be located in a valve vault next to a wet well or in a dry well. Valve vaults shall be ventilated according to subsection (d) of this section.(7) A pump must run continuously during the pump cycle time, which begins when the pump is activated by the pump controls. Pump cycle time, based on peak flow, must equal or exceed those in the following table:Attached Graphic(8) An evaluation of minimum wet well volume requires the following formula:Attached Graphic(c) Dry well access.(1) An underground dry well must be accessible for maintenance and shall be ventilated according to subsection (d) of this section.(2) A stairway in a dry well must use non-slip steps and conform to Occupational Safety and Health Administration regulations with respect to rise and run.(3) A ladder in a dry well must be made of non-conductive material and be rated for the load necessary for staff and equipment to descend and ascend.(d) Lift Station Ventilation.(1) Passive Ventilation for Wet Wells.(A) Passive ventilation structures must include screening to prevent the entry of birds and insects to a wet well. The screening must be made of corrosion-resistant material.(B) All mechanical and electrical equipment in a wet well with passive ventilation must be constructed in compliance with explosion requirements in the National Fire Protection Association 70 National Electrical Code®.(C) A passive ventilation system must be sized to vent at a rate equal to the maximum pumping rate of a lift station, but not to exceed 600 feet per minute through a vent pipe.(D) The minimum acceptable diameter for an air vent is 4.0 inches.(E) All vent outlets must be at least 1.0 foot above a 100-year flood plain elevation.(2) Mechanical Ventilation in Lift Stations.(A) Dry Wells.(i) A dry well must use mechanical ventilation.(ii) Ventilation equipment under continuous operation must have a minimum capacity of six complete air exchanges per hour.(iii) Ventilation equipment under intermittent operations must provide a minimum capacity of 30 complete air exchanges per hour and be connected to the lift station's lighting system.(B) Wet Wells.(i) Mechanical ventilation systems for wet wells must operate continuously.(ii) The ventilation equipment must provide at least 12 complete air exchanges per hour and be constructed of corrosion-resistant material.(iii) An owner shall implement odor control measures necessary to prevent a wet well from becoming a nuisance. An owner shall consider the source of potential odor, turbulence, residence time, and other factors that contribute odor at a lift station when selecting odor control measures.(iv) All mechanical and electrical equipment in a wet well with mechanical ventilation must be constructed in compliance with explosion requirements in National Fire Protection Association 70 National Electrical Code®.(e) Wet Well Slopes.(1) A wet well floor must have a smooth finish and minimum slope of 10% to a pump intake.(2) A wet well design must prevent deposition of solids, grease, and debris under normal operating conditions.(3) A lift station with greater than 5.0 million gallons per day firm pumping capacity must have anti-vortex baffling.(f) Hoisting Equipment. A lift station must have permanent hoisting equipment or be accessible to portable hoisting equipment for removal of pumps, motors, valves, pipes, and other similar equipment. (g) Valve Vault Drains. A floor drain from a valve vault to a wet well must prevent gas from entering a valve vault by including flap valves, "P" traps, submerged outlets, or a combination of these devices.(h) Dry Well Sump Pumps.(1) Pumps.(A) A dry well must use dual sump pumps, each with a minimum capacity of 1,000 gallons per hour and capable of handling the volume of liquid necessary to prevent accumulation of water from condensation and incidental leaks during peak pumping operations.(B) A sump pump must have a submersible motor and watertight wiring.(C) A dry well floor must slope toward the sump. A sump must include sump pumps sized to prevent accumulation of water from condensation and incidental leaks.(D) The minimum sump depth is 6.0 inches. The sump must prevent standing water from accumulating on a dry well floor under normal operation.(E) A sump pump must operate automatically by use of a float switch or another level-detecting device.(2) Pipes.(A) A sump pump must use independent piping that is capable of discharging more than the maximum liquid level of an associated wet well at a rate that will prevent overflow of the wet well.(B) A sump pump outlet pipe must be at least 1.5 inches in diameter and have at least two check valves in series.</content><note type="source"><p>Source Note: The provisions of this §217.60 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.61"><num value="217.61">§217.61</num><heading>Lift Station Pumps</heading><content>(a) General Requirements. A raw wastewater pump, with the exception of a grinder pump, must:(1) be designed to prevent clogging;(2) be capable of passing a sphere of 2.5 inches in diameter or greater; and(3) have greater than 3.0 inch diameter suction and discharge openings.(b) Submersible and Non-submersible Pumps.(1) A non-submersible pump must have inspection and cleanout plates on both the suction and discharge sides of each pumping unit that facilitate locating and removing blockage-causing materials, unless the pump design accommodates easy removal of the rotation elements.(2) A pump support for a submersible or non-submersible pump must prevent movement and vibration during operation.(3) A submersible pump must use a rail-type pump support system with manufacturer-approved mechanisms designed to allow personnel to readily remove and replace any single pump without entering or dewatering the wet well.(4) Submersible pump rails and lifting chains must be constructed of a material that performs to at least the standard of Series 300 stainless steel.(5) All lift station pumps and associated appurtenances must be designed to prevent the discharge of wastewater from the lift station and at all points in the upstream collection system.(c) Lift Station Pumping Capacity. A lift station must have at least two pumps. The firm pumping capacity of a lift station must handle the peak flow.(d) Pump Head Calculations.(1) An owner must select a pump based upon analysis of the system head and pump capacity curves. The owner must determine the pumping capacities and pressure head requirements of a single pump operating alone, and with other pumps.(2) The engineering report must include pipe head loss calculations, using the American National Standards Institute's Hydraulic Institute Standards pertaining to head losses through pipes, valves, and fittings.(3) The engineering report must include the friction coefficient (Hazen-Williams "C" value) used in friction head loss calculations. The selected friction coefficient must be based on the pipe material.(4) For a lift station with more than two pumps, a force main in excess of one-half mile, or a lift station with a firm pumping capacity of 100 gallons per minute or greater, the engineering report must include system curves for both the normal and peak operating conditions at friction coefficient values (C values) for the force main pipe.(e) Flow Control.(1) A lift station or a transfer pumping station located at or discharging directly to a wastewater treatment facility must have a peak pump capacity equal to or less than the peak flow, unless equalization is provided.(2) Each lift station or transfer pumping station located at or discharging directly to a wastewater treatment facility with a peak flow that is greater than 300,000 gallons per day must use three or more pumps, unless duplex, automatically controlled, variable capacity pumps are used.(3) Each lift station or transfer pumping station located at or discharging directly to a wastewater treatment facility with a peak flow that is less than or equal to 300,000 gallons per day must use at least two pumps.(f) Self-Priming Pumps.(1) A self-priming pump must be capable of priming without relying on a separate priming system, an internal flap valve, or any other external method for priming.(2) A self-priming pump must use a suction pipe that produces flow with velocity of at least 3.0 feet per second but not more than 7.0 feet per second. A self-priming pump must have its own suction pipe.(3) A self-priming pump must vent air back into the wet well during priming.(g) Vacuum-Priming Pumps.(1) A vacuum-primed pump must be capable of priming by using a separate positive priming system with a dedicated vacuum pump for each main wastewater pump.(2) A vacuum-priming pump must produce a suction pipe velocity between 3.0 and 7.0 feet per second. A vacuum priming pump must have its own suction pipe.(h) Vertical Positioning of Pumps. A raw wastewater pump must maintain positive static suction head during normal on-off cycling. A submersible pump with "no suction" pipes, a vacuum-primed pump, or a self-priming unit capable of satisfactory operation under any negative suction head anticipated for the lift station is not required to have positive static suction head during normal on-off cycling.(i) Individual Grinder Pumps. A grinder pump is not subject to the requirements of this subchapter if:(1) the grinder pump is not part of an alternative collection system as defined by this chapter; and(2) the grinder pump only serves a single connection to a wastewater collection system.(j) Pump for Low-Flow Lift Station. A pump used for a lift station with a peak flow of less than 120 gallons per minute must be submersible and include a grinder.</content><note type="source"><p>Source Note: The provisions of this §217.61 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.62"><num value="217.62">§217.62</num><heading>Lift Station Pipes</heading><content>(a) Horizontal Pump Suctions.(1) Each lift station pump must have a separate suction pipe that uses an eccentric reducer.(2) Pipes in a wet well must have a turndown-type flared intake.(b) Valves.(1) The discharge side of each lift station pump must be followed by a full-closing isolation valve and must also have a check valve.(A) A check valve must be a swing type valve with an external lever or external position indicator to show its open and closed positions.(B) An isolation valve must include an external position indicator to show its open and closed positions, unless a full-closing valve is a rising-stem gate valve.(2) A grinder pump installation may use a rubber-ball check valve or a swing-type check valve.(3) A butterfly valve, tilting-disc check valve, or any other valve using a tilting-disc in a pipe is prohibited.(c) Pipes.(1) A lift station pipe must have flanged or flexible connections to allow for removal of pumps and valves without interruption of the lift station operations.(2) Wall penetrations must allow for pipe flexure while excluding exfiltration or infiltration.(3) Pipe suction velocities must be at least 3.0 feet per second but not more than 7.0 feet per second.</content><note type="source"><p>Source Note: The provisions of this §217.62 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.63"><num value="217.63">§217.63</num><heading>Emergency Provisions for Lift Stations</heading><content>(a) A lift station must include a sign with the name of the wastewater treatment facility and 24-hour emergency contact information. The sign must be posted at the lift station so that it is visible and legible, with block lettering that is at least 1.5 inches tall.(b) A lift station must be designed to prevent the discharge of wastewater from the lift station and at all points in the upstream collection system during electrical power failures.(c) A lift station must include an audiovisual alarm system. The audiovisual alarm system must transmit alarm conditions through use of an auto-dialer system, Supervisory Control and Data Acquisition (SCADA) system, or telemetering system connected to a continuously monitored location. At a minimum, the alarm system must automatically activate to give warnings for power outages, pump failures, and high water levels. Audiovisual alarms are not required if the SCADA system alerts the operator about communication loss, in addition to the alarm conditions.(d) An alarm system must include self-testing capability at the control panel.(e) An owner shall determine the reliability of the existing commercial power service for a lift station using records from the past 60 consecutive months from the electric utility that serves the lift station. The entire record must be used if 60 months of records are not available. The owner must provide the power outage records and the reliability determination in the engineering report. The records must:(1) be in writing;(2) be on the utility's letterhead and bear a signature of an electric utility employee who has knowledge of data about power outages;(3) identify the location of the lift station;(4) list the total number of outages that have occurred during the past 60 consecutive months; and(5) indicate the date and duration of each recorded power outage.(f) The executive director may consider documentation of commercial power system upgrades and their effects on the reliability of commercial power. Documentation of upgrades and their effects on power reliability must be submitted in writing on the electric utility's letterhead and must bear the signature of an electric utility employee who has knowledge of the system upgrades.(g) Systems for preventing the discharge of wastewater must operate for a duration at least equal to the longest power outage on record for the past 60 months, or at least 20 minutes, whichever is longer. The design must be based on peak flows, inflow, and infiltration. If the longest power outage on record for the past 60 consecutive months is greater than 48 hours and generators will be used to provide backup power, then the owner must have a contract in place that guarantees fuel supply during an emergency. The owner must also have sufficient storage capacity at the wastewater treatment facility for the fuel for the duration of the emergency.(h) For calculation purposes, the owner must assume that the lift station wet well is full to the pump activation level when the power outage period begins.(i) Systems for preventing discharge of wastewater may include any combination of alternate power sources, on-site generators, portable generators, gravity relief sewers, bypass pumps, collection system storage, spill containment structures, and other systems approved in writing by the executive director. For purposes of this section, a gravity relief sewer is the part of a collection system built to manage the flow of wastewater that exceeds the capacity of the existing collection system by passively transporting the flow to a different part of the collection system or to another wastewater treatment facility.(1) The system or combination of systems must accommodate the firm pumping capacity of the lift station.(2) Collection system storage must not be used as a sole system for preventing unauthorized discharge of wastewater.(3) A spill containment structure must not be used as a sole system for preventing unauthorized discharge of wastewater.(4) Portable generators and pumps may only be used to guarantee service if:(A) a tested quick-connect mechanism or a transfer switch properly sized to connect to a portable generator is provided where the generator will be used; and(B) a licensed operator that is knowledgeable in operation of the portable generators and pumps will be on call 24 hours per day every day.(5) If portable generators and pumps are used to guarantee service, the engineering report must include:(A) the storage location of each generator and pump;(B) the amount of time that will be needed to transport each generator or pump from the storage location to the furthest lift station that will be served by the generator or pump;(C) how many lift stations each backup generator or pump serves; and(D) the type of routine maintenance and upkeep that will be done for each portable generator and pump to ensure that they will be operational when needed.(j) Systems for preventing discharge of wastewater at a lift station must be permanent features of the lift station or must be deployable during any electrical power outage. Deployable systems must be operational before any unauthorized discharge occurs. The owner must describe how a temporary power system will be deployed and operated in the engineering report, and must address deployment during all types of weather events that might reasonably cause power outage at the lift station.(k) Spill containment structures must be able to be cleaned and must have an intruder-resistant fence that meets the requirements in §217.59(b) of this title (relating to Lift Station Site Requirements). The engineering report must include a detailed management plan for cleaning and maintaining each spill containment structure.(l) A lift station must be fully accessible during a 25-year, 24-hour rainfall event.(m) Lift station pump controls must prevent over-pumping and surcharge upon resumption of normal power after a power outage.</content><note type="source"><p>Source Note: The provisions of this §217.63 adopted to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.64"><num value="217.64">§217.64</num><heading>Materials for Force Main Pipes</heading><content>(a) Force main pipe material must withstand the pressure generated by instantaneous pump stoppage due to power failure under maximum pumping conditions.(b) The use of pipes or fittings rated at a working pressure of less than 150 pounds per square inch is prohibited.(c) Force main pipe materials must be identified in the specifications with the appropriate specification number for both quality control and installation from the American Society for Testing and Materials, American National Standards Institute, or American Water Works Association.(d) Pipe material specified for a force main must have an expected life equal to or longer than that of the lift station and must be non-corrosive.</content><note type="source"><p>Source Note: The provisions of this §217.64 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.65"><num value="217.65">§217.65</num><heading>Force Main Pipe Joints</heading><content>(a) An underground force main pipe joint must include either push-on rubber gaskets or mechanical joints with a pressure rating equal to or greater than that of the force main pipe material.(b) Exposed force main pipe joints must be flanged or flexible and adequately secured to prevent movement due to wastewater surges.(c) American Society for Testing and Materials, American Water Works Association, or other widely accepted national reference standards for the joints must be included in the project specifications.</content><note type="source"><p>Source Note: The provisions of this §217.65 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.66"><num value="217.66">§217.66</num><heading>Identification of Force Main Pipes</heading><content>(a) A detectable underground warning tape must be laid in the same trench as a force main pipe. The detectable underground warning tape must be located above and parallel to the force main.(b) The detectable underground warning tape must bear the label "PRESSURIZED WASTEWATER" continuously repeated in at least 1.5 inch tall letters.</content><note type="source"><p>Source Note: The provisions of this §217.66 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.67"><num value="217.67">§217.67</num><heading>Force Main Design</heading><content>(a) Velocities.(1) A force main must be a minimum of 4.0 inches in diameter, unless it is used in conjunction with a grinder pump station. The executive director may approve pipes with a diameter less than 4.0 inches where grinder pumps are used, on a case-by-case basis in writing.(2) For a lift station with two pumps, the minimum velocity is 3.0 feet per second with one pump in operation.(3) For a lift station with three or more pumps:(A) the minimum velocity in a force main is 2.0 feet per second with only the smallest pump operating at full speed; and(B) a minimum flushing velocity of 5.0 feet per second or greater must occur in a force main at least twice daily.(4) The engineering report must certify that a pipeline with a velocity greater than 6.0 feet per second can withstand high and low negative surge pressures in the event of sudden pump failure.(b) Detention Time.(1) Force main detention time calculations must be included in the engineering report.(2) Force main detention time calculations must be performed using a range of flow rates that represent the flows expected to be delivered to a force main by an upstream pump station during any 24-hour period.(c) Water Hammer. A force main design must include effective surge control measures to manage pressure due to water hammer that may exceed the working strength of a force main pipe.(d) Connection to Gravity Main.(1) A force main must terminate at a collection system manhole or at a manhole or preliminary treatment unit at a wastewater treatment facility.(2) The discharge end of a force main inside a manhole must be restrained to prevent movement and must produce non-turbulent flow.(3) A collection system receiving wastewater from a force main must be designed to accept the maximum pump discharge from the force main without surcharging.(e) Pipe Separation. A separation distance between a force main and any water supply pipe must meet the minimum separation requirements established in §217.53(d) of this title (relating to Pipe Design).(f) Odor Control.(1) A force main must terminate such that the flowline of the force main entering the manhole matches the flowline of the gravity pipe leaving the manhole.(2) A force main must be designed to abate anticipated odor. An owner shall implement odor control measures necessary to prevent a collection system from becoming a nuisance.(g) Air Release Valves in Force Mains.(1) Any high point along the vertical force main alignment must include an air release valve or a combination of air release and air vacuum valves.(2) An air release valve must have an isolation valve between the air release valve and the force main.(3) An air release valve must be inside of a vault that is at least 48 inches in diameter and has a vented access opening of at least 30 inches in diameter.(4) An air release valve must be made of corrosion-resistant material.(h) Valves. A force main must have valves spaced at no more than 2,000 foot intervals to facilitate initial testing and subsequent maintenance and repairs.(i) Fatigue Life. The engineering report must include calculations that show the strength of the force main pipe at the end of the 50-year design life. The calculations must consider the fluctuations between a pressurized and depressurized operating state.(j) Alignment Changes.(1) Bending a segmented pipe is prohibited, unless the pipe joints are welded or heat-fused.(2) Force main alignment changes must be accomplished using manufactured bend fittings.(3) Force main pipe joints must include mechanical joint restraints or thrust blocks at all bends unless pipe vibration calculations justify the absence of a joint restraint or thrust block.</content><note type="source"><p>Source Note: The provisions of this §217.67 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.68"><num value="217.68">§217.68</num><heading>Force Main Testing</heading><content>(a) The final plans and specifications must include the pressure testing procedures.(b) A pressure test must use 50 pounds per square inch above the normal operating pressure of a force main.(c) A temporary valve for pressure testing may be installed near the discharge point of a force main and must be removed after a test is successfully completed.(d) A pump isolation valve may be used as an opposite termination point.(e) A test must involve filling a force main with water.(f) A pipe must hold the designated test pressure for a minimum of 4.0 hours.(g) The leakage rate must not exceed 10.0 gallons per inch of diameter per mile of pipe per day. The following equation must be used to calculate the acceptable leakage rate in gallons per hour per 1,000 feet of pipe.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §217.68 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.69"><num value="217.69">§217.69</num><heading>Maintenance, Inspection, and Rehabilitation of the Collection System</heading><content>(a) The owner of a collection system shall develop a maintenance and inspection program for its collection system with the assistance of an engineer and licensed operators. The owner is responsible for ensuring that the maintenance and inspection program includes all the information pertaining to inspection, maintenance, and rehabilitation of the collection system necessary to ensure efficient, safe, and environmentally compliant operation. The owner is also responsible for ensuring that all records pertaining to maintenance, inspection, and rehabilitation activities are maintained by the licensed collection system operators. The inspection program must include, at a minimum:(1) a schedule for inspections, cleaning, and maintenance;(2) methods for inspecting, cleaning, and maintaining each unit within the collection system;(3) methods for estimating the current condition and life expectancy of each unit; and(4) a requirement to estimate the structural integrity of each collection system unit.(b) The plans and specifications for a rehabilitation project must include, at a minimum:(1) a surface preparation plan that includes:(A) a cleaning plan to remove all contaminants;(B) references for the cleaning method;(C) dewatering or bypassing provisions; and(D) field preparation and application logs;(2) a plan for managing volatile chemicals and dust in confined spaces;(3) a requirement to follow the manufacturer's installation procedures and specifications;(4) a requirement to re-inspect the rehabilitation project, including the underlayment and coating, between six months and 11 months after installation; and(5) a requirement to re-inspect the rehabilitation project, including the underlayment and coating, 18 months after installation.(c) The owner must maintain records of all activities related to collection system inspection, maintenance, cleaning, and rehabilitation. The records must be made available to the executive director upon request according to the requirements of §217.18 of this title (relating to Provisions that Apply to All Sections in this Chapter).</content><note type="source"><p>Source Note: The provisions of this §217.69 adopted to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.70"><num value="217.70">§217.70</num><heading>Reclaimed Water Facilities</heading><content>(a) In accordance with §217.6 of this title (relating to Submittal Requirements and Review Process), the design of a distribution system that will convey reclaimed water to a user must be submitted, reviewed, and approved in writing by the executive director before the distribution system may be used.(b) A municipality may be the review authority in accordance with §217.8 of this title (relating to Municipality Reviews), and may approve a reclaimed water distribution system.(c) A distribution system designed to transport Type II reclaimed water, as defined by §210.33(2) of this title (relating to Quality Standards for Using Reclaimed Water), must comply with this subchapter, as applicable to the project.(d) A distribution system designed to transport Type I reclaimed water, as defined by §210.33(1) of this title must meet the requirements of subsections (e) - (j) of this section.(e) Type I reclaimed water gravity pipes must comply with §§217.53 - 217.55, 217.58, and 217.59 of this title (relating to Pipe Design; Criteria for Laying Pipe; Manholes and Related Structures; Testing Requirements for Manholes; and Lift Station Site Requirements). Type I reclaimed water pipe design must prevent pipe and bedding displacement.(f) Each appurtenance designed to handle reclaimed water must be identified in the plans and the engineering report.(1) An above-ground hose bib, spigot, or other hand-operated connection is prohibited, except in a lockable, secured area that is only accessible to authorized personnel.(2) An underground hose bib must:(A) be located in a locked, below-grade vault, or be operated only by a special tool in a non-lockable, underground service box;(B) be clearly labeled "NON-POTABLE WATER, DO NOT DRINK" and "NO BEBA EL AGUA;"(C) be purple; and(D) be designed to prevent a connection to a standard water hose.(3) Reclaimed water storage areas, hose bibs, and spigots must include signs in both English and Spanish reading "NON-POTABLE WATER, DO NOT DRINK" and "NO BEBA EL AGUA."(g) Cross Connection Control and Separation Distances.(1) A Type I reclaimed water pipe must be at least 4.0 feet from a potable water pipe, as measured from the outside surface of each of the respective pipes.(2) A physical connection between a potable water pipe and a reclaimed water pipe is prohibited.(3) Backflow prevention must be provided for all potable water connections to prevent any possibility of reclaimed water entering a drinking water system according to the requirements of §217.330 of this title (relating to Drinking Water Supply Connections).(4) Where a 4.0 foot separation distance cannot be achieved, a reclaimed water pipe must meet the requirements of subparagraph (A) of this paragraph if the reclaimed water pipe runs parallel to the potable water pipe or subparagraph (B) of this paragraph if the reclaimed water pipe crosses the potable water pipe.(A) If a new Type I reclaimed water pipe is installed parallel to an existing potable water pipe, the reclaimed water pipe must:(i) be located below the potable water pipe and maintain a horizontal separation distance of no less than 3.0 feet;(ii) have a minimum pipe stiffness of 115 pounds per square inch (psi) with compatible joints, or a pressure rating of 150 psi for both pipe and joints; and(iii) be embedded in cement stabilized sand that meets the requirements of subparagraph (D) of this paragraph.(B) If a new Type I reclaimed water pipe crosses a potable water pipe, the design of the reclaimed water pipe must:(i) include one full segment of reclaimed water pipe that is centered on the potable water pipe such that the joints of the reclaimed water pipe are equidistant from the center point of the potable water pipe;(ii) cross the potable water pipe at a point that is equidistant between the joints of the potable water pipe; and(iii) have a separation of at least six inches between the outsides of the pipes.(C) A Type I reclaimed water pipe must have either a pressure rating of 150 psi for both pipe and joints or a pipe stiffness of at least 115 psi with compatible joints for a minimum distance of 4.0 feet in each direction, as measured perpendicularly from any point on the potable water pipe to the Type I reclaimed water pipe.(D) All portions of reclaimed water pipe within 4.0 feet of a potable water pipe must be embedded in cement stabilized sand that:(i) has a minimum content of 10% cement, based on loose dry weight volume;(ii) is installed a minimum of 6.0 inches above and one quarter of the pipe diameter on either side and below a reclaimed water pipe.(h) Site Selection of Type I Reclaimed Water Pump Stations. A design must comply with §217.59(a) - (c) of this title.(i) Design of Type I Reclaimed Water Pump Stations. A design must comply with §§217.60(d) and (g); 217.61(d); and 217.62(a) and (c) of this title (relating to Lift Station, Wet Well, and Dry Well Designs; Lift Station Pumps; and Lift Station Pipes), and paragraphs (1) - (3) of this subsection.(1) Pump Controls.(A) All electrical equipment must be protected from a 100-year flood event and be protected from potential flooding from a wet well.(B) Motor control centers must be mounted at least 4.0 inches above grade to prevent water intrusion and corrosion from standing water in the enclosure.(2) Pumps.(A) A pump support must prevent movement or vibration during operation.(B) A submersible pump must use a rail-type pump support incorporating manufacturer-approved mechanisms designed to allow an operator to readily remove and replace any single pump without first entering or dewatering the wet well.(C) Submersible pump rails and lifting chains must be made of a material that is equivalent to Series 300 stainless steel at minimum.(3) Pump Station Valves.(A) The discharge side of each pump must include a check valve followed by a full-closing isolation valve.(B) Check valves must be swing type with an external lever or external position indicator to show the open and closed positions.(C) All valve types other than rising stem gate valves must include a position indicator to show the open and closed positions.(j) Force Main Pipe for Type I Reclaimed Water. A force main pipe for Type I reclaimed water must comply with §§217.54, 217.64, 217.65, 217.67(a) - (c) and (e), and 217.68 of this title (relating to Criteria for Laying Pipe; Materials for Force Main Pipes; Force Main Pipe Joints; Force Main Design; and Force Main Testing) and the following:(1) A valve casing for an underground isolation valve must include "REUSE" or "NPW" cast into its lid.(2) A force main pipe must either be purple in color or be contained in an 8.0 mils thick purple polyethylene sleeve conforming to American Water Works Association C105, Class C. In-line isolation valves for reuse pipes must open clockwise to distinguish them from potable water isolation valves.</content><note type="source"><p>Source Note: The provisions of this §217.70 adopted to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scC/s217.71"><num value="217.71">§217.71</num><heading>Storage Tanks for Reclaimed Water</heading><content>Ground level storage tanks and elevated storage tanks for reclaimed water must be designed, installed, and constructed in accordance with the American Water Works Association standards with reference to materials and construction practices, except for health-based standards strictly related to potable water storage and contact practices.</content><note type="source"><p>Source Note: The provisions of this §217.71 adopted to be effective December 4, 2015, 40 TexReg 8254.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c217/scD"><num value="D">SUBCHAPTER D</num><heading>ALTERNATIVE COLLECTION SYSTEMS</heading><section identifier="/us/state/tx/tac/t30/p1/c217/scD/s217.90"><num value="217.90">§217.90</num><heading>Applicability</heading><content>This subchapter applies to the design, construction, operation, maintenance, and testing standards for alternative collection systems. Conventional collection systems and reclaimed water conveyance systems are covered in Subchapter C of this chapter (relating to Conventional Collection Systems). This subchapter does not apply to individual private grinder pumps or septic tank effluent pumps that discharge directly into a conventional collection system and are not part of an alternative collection system.</content><note type="source"><p>Source Note: The provisions of this §217.90 adopted to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scD/s217.91"><num value="217.91">§217.91</num><heading>Edwards Aquifer</heading><content>An owner who plans to install an alternative collection system located over the recharge zone of the Edwards Aquifer, as "recharge zone" is defined in §213.3 of this title (relating to Definitions), must design and install the alternative collection system in accordance with Chapter 213 of this title (relating to Edwards Aquifer) in addition to this subchapter.</content><note type="source"><p>Source Note: The provisions of this §217.91 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scD/s217.92"><num value="217.92">§217.92</num><heading>Component Sizing</heading><content>(a) The components of an alternative collection system must be sized based on existing flow data from a system and service area with similar characteristics, if such data is available. Similar characteristics for sizing alternative collection systems include:(1) location;(2) inflow and infiltration characteristics;(3) peak flows;(4) pipe materials;(5) customer base, including sources of wastewater and percent contribution from the wastewater sources; and(6) any other characteristics required by the executive director.(b) If flow data from a similar service area with a conventional collection system is used, the engineering report must include the expected effects of inflow and infiltration on the peak flow of the conventional collection system.(c) Design and construction of an alternative collection system must minimize excess flows from inflow and infiltration.(d) Roof drains, street drains, or other types of drains that allow entrance of stormwater into an alternative collection system are prohibited.(e) In the absence of existing data, the sizing of on-site components in an alternative collection system must be based on Table B.1. in Figure: 30 TAC §217.32(a)(3) of this title (relating to Organic Loadings and Flows for New Wastewater Treatment Facilities), in conjunction with the following equation:Attached Graphic(f) Design of the off-site components must be based on the maximum flow rate expected, calculated using the following equation:Attached Graphic(1) An equivalent dwelling unit (EDU) is assumed to have an occupancy of 3.5 people. For EDU populations greater than 3.5, the following equation must be used:Attached Graphic(2) The safety factor, "B," may be adjusted if higher wastewater flows are anticipated. A discharge from commercial or institutional dischargers must be measured directly or calculated under this subsection.</content><note type="source"><p>Source Note: The provisions of this §217.92 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scD/s217.93"><num value="217.93">§217.93</num><heading>General Requirements</heading><content>(a) Except where specifically stated in this subchapter, the design of an alternative collection system must comply with the applicable requirements of Subchapter C of this chapter (relating to Conventional Collection Systems).(b) An owner shall obtain from an engineer:(1) an operation and maintenance manual that specifies the recommended operating procedures and maintenance practices for the alternative collection system; and(2) as-built drawings indicating the location of all on-site components of the alternative collection system.(c) An owner shall certify by letter to the executive director that the requirements in subsection (b) of this section have been met. The letter must include the permit number and name(s) of the owner(s) of the associated wastewater treatment facility.(d) An intersection of three or more collection pipes must have a manhole.(e) A manhole must not be located in the flow path of a watercourse, or in an area where surface water accumulates.(f) An alternative collection system must discharge to a wastewater treatment facility that is permitted by the commission or to a collection system that flows to a wastewater treatment facility permitted by the commission.</content><note type="source"><p>Source Note: The provisions of this §217.93 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scD/s217.94"><num value="217.94">§217.94</num><heading>Maintenance and Inspection Program</heading><content>An alternative collection system owner shall develop and implement a maintenance and inspection program in accordance with §217.69 of this title (relating to Maintenance, Inspection, and Rehabilitation of the Collection System).</content><note type="source"><p>Source Note: The provisions of this §217.94 adopted to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scD/s217.95"><num value="217.95">§217.95</num><heading>Alternative Collection System Service Agreements</heading><content>(a) An alternative collection system service agreement must be executed between the alternative collection system owner and each real property owner served by the alternative collection system. The service agreement must authorize the collection system owner to place and maintain alternative collection system components on the real property owner's property.(b) An alternative collection system service agreement must identify the owner of the on-site components and specify the responsible party for the construction and maintenance of the on-site components.(c) An alternative collection system owner shall submit a copy of the alternative collection system service agreement to the executive director with the summary transmittal letter required in §217.6 of this title (relating to Submittal Requirements and Review Process), for the executive director to review.(d) An alternative collection system service agreement must include:(1) a requirement that the alternative collection system owner shall ensure that all existing alternative collection system components and building laterals that will be incorporated into a new or altered alternative collection system must be cleaned, inspected, tested, maintained, altered, or replaced, as necessary, to the satisfaction of the collection system owner before connecting the alternative collection system component to the collection system;(2) a requirement that the alternative collection system owner shall approve all materials and equipment before incorporating the materials and equipment into any construction or maintenance of an alternative collection system component;(3) a requirement that the alternative collection system owner shall have an engineer inspect and approve the installation of all new or replacement alternative collection system components before placing the system into service;(4) a provision that the alternative collection system owner shall have access at all reasonable times to inspect on-site alternative collection system components;(5) a provision that the alternative collection system owner has the right to make an emergency repair and perform emergency maintenance to any alternative collection system component, including building laterals and on-site collection system components;(6) a statement of whether the alternative collection system owner or the property owner is responsible for non-emergency maintenance of on-site components;(7) a statement of whether the alternative collection system owner or the property owner is responsible for paying maintenance costs for on-site components, or how the costs to each party will be determined if responsibility is shared;(8) a statement of whether the collection system owner or the property owner is responsible for paying the electrical power cost of operating an on-site component, or how the costs to each party will be determined if responsibility is shared;(9) a payment method, including a payment schedule, for the alternative collection system owner to recover costs paid by the alternative collection system owner that the property owner is responsible for paying;(10) a payment method, including a payment schedule, for the property owner to recover costs paid by the property owner that the alternative collection system is responsible for paying;(11) a provision that authorizes the alternative collection system owner to inspect and approve pretreatment units before installation;(12) a requirement that an on-site component owned by the alternative collection system owner must have an upstream isolation valve;(13) a requirement that an on-site component must have a service isolation valve located downstream on a service pipe from an on-site component to the collection system;(14) a provision that service isolation valves must be accessible to the alternative collection system owner at all times, through an easement or other legal agreement or contract between the property owner and the alternative collection system owner; and(15) a provision that the alternative collection system owner shall have the ability to collect, transport, and dispose of any residual material.</content><note type="source"><p>Source Note: The provisions of this §217.95 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scD/s217.96"><num value="217.96">§217.96</num><heading>Small Diameter Effluent Sewers</heading><content>(a) Interceptor tank design. Septic tanks used as interceptor tanks must be designed and constructed according to §285.32(b)(1) of this title (relating to Criteria for Sewage Treatment Systems).(1) An outlet of an interceptor tank must have a commercially available effluent filter designed to remove particles larger than 1/16 inch.(2) The volume of an equivalent dwelling unit (EDU) interceptor tank must be based on the criteria in Chapter 285 of this title (relating to On-Site Sewage Facilities).(3) The volume of a multiple equivalent dwelling unit (MEDU) interceptor tank must be calculated using the following equations: Attached Graphic(b) Pretreatment units.(1) A non-residential contributor to an alternative collection system must provide a method for trapping and removing fats, oils, and grease (FOG) from the wastewater before the wastewater enters an interceptor tank.(2) A pretreatment unit must have at least two compartments. (3) The primary compartment volume must be at least 60% of the total tank volume.(4) A grease trap must meet the same requirements as an interceptor tank with regard to water tightness, materials of construction, and access to contents.(5) FOG retention capacity, in pounds, must be at least twice the pretreatment unit's flow capacity, in gallons per minute. The FOG retention capacity of a grease trap is the amount of FOG that it can hold before its efficiency drops below 90%.(6) Plumbing for a pretreatment unit must be designed to prevent wastes, other than FOG, from entering the pretreatment unit.(7) A pretreatment unit must be designed to allow monitoring of the sludge and FOG levels.(c) Service pipe design.(1) Pipe materials used for service pipe must meet or exceed the performance characteristics of American Society for Testing and Materials (ASTM) D 2241 Class 200 polyvinyl chloride (PVC) pipe.(2) An interceptor tank must include a pumping unit if the interceptor tank's outlet elevation is below the main pipe elevation or if the hydraulic grade line is within a depressed section of a main pipe.(3) A service pipe for an EDU or MEDU must be sized to transport the highest flow expected from the building, but must not be less than 2.0 inches in diameter.(4) The diameter of a service pipe must be no greater than the diameter of the collection pipe it is connected to.(5) A service pipe of an interceptor tank that is subject to periodic backflow must include a check valve that: (A) is located immediately adjacent to the collection pipe; (B) is made from a corrosion-resistant material;(C) provides an unobstructed flow way; and(D) is a swing type valve with an external position indicator to show the open and closed positions.(d) Collection system design.(1) Hydraulic design.(A) A small diameter effluent sewer (SDES) system with open channel flow must use a design depth of flow of 100% of the pipe diameter.(B) The minimum flow velocity in a collection pipe must be no less than 1.0 foot per second (fps).(C) The maximum flow velocity in any portion of an SDES system is 8.0 fps without thrust restraint and 13.0 fps with thrust restraint. (D) The engineering report must include velocity calculations for each pipe segment.(E) The elevation of the hydraulic grade-line at peak flow must be lower than an outlet invert of any upstream interceptor tank, unless the interceptor tank has on-site conveyance equipment.(F) The engineering report must include an analysis for each pipe showing the hydraulic grade line, energy grade line, and ground elevation in relationship to the outlet elevation of each interceptor tank being served by a collection pipe.(G) The engineering report must include an engineer's analysis of each segment of a variable grade effluent sewer.(H) Open pipe flow design must use a Manning's "n" value of 0.013.(I) Pressure flow design must use a Hazen-Williams "C" value of 120.(J) No pipe in an SDES may be smaller than 2.0 inches in diameter.(2) Vertical Alignment.(A) The vertical alignment of an SDES may be variable; however, the overall downhill gradient must allow the pipe to transport the peak flow.(B) Venting must be provided upstream and downstream of pipe segments that are below the hydraulic grade line.(C) The pipes must have a uniform profile (i.e., no abrupt or sharp changes in vertical direction).(D) A collection pipe must have a cleanout that extends to ground level and terminates in a watertight valve box at: (i) an upstream terminus; (ii) a minor junction; (iii) a change in pipe diameter; and (iv) intervals of no more than 1,000 feet.(E) Venting at a collection pipe summit must use a wastewater service air release valve or a combination air release and vacuum valve. The valve must be constructed of corrosion-resistant material and located in a vault.(F) Pipe material used in a collection system must meet the performance requirements of ASTM D 3034 SDR 26 PVC pipe, except for any segment under pressure flow conditions. Under pressure flow conditions, pipe material must meet the performance requirements of ASTM D 2241 Class 200 PVC pipe.(3) Odor Control. A collection pipe must have permanent odor control devices attached to the line and must prevent nuisance odors. Odor control devices must be accessible for maintenance.</content><note type="source"><p>Source Note: The provisions of this §217.96 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scD/s217.97"><num value="217.97">§217.97</num><heading>Pressure Sewers</heading><content>(a) Pumps. A pressure sewer system must include a grinder pump or a septic tank effluent pump (STEP).(b) Exceptions. Except where this section specifically states otherwise, the requirements of this section apply to both grinder pumps and STEPs.(c) Service Pipe Requirements.(1) A pressure sewer service pipe that is buried less than 30 inches below ground must incorporate a check valve and a fully closing gate or ball valve at the junction of a collection pipe and a service pipe to allow isolation of the service pipe.(2) A check valve must allow an unencumbered flow when fully open.(3) A valve must be made of corrosion-resistant material and must have a position indicator to show its open and closed position.(4) The minimum size service pipe for an equivalent dwelling unit (EDU) is 1.25 inches.(5) The minimum size service pipe for a multiple equivalent dwelling unit (MEDU) is 1.5 inches.(6) A junction to collection pipes must be made with a tee or service saddle and may use solvent weld fittings.(7) The diameter of a service pipe must be no greater than the diameter of the collection pipe to which it is connected.(8) Material used in a service pipe must have performance characteristics that are at least equivalent to American Society for Testing and Materials (ASTM) D 2241 Class 200 polyvinyl chloride (PVC) pipe.(d) On-Site Mechanical Equipment Requirements.(1) Pump discharge rates must allow the capacity of the pump and the volume of the wet well dedicated for flow attenuation and storage to accommodate the expected peak flow.(2) A single pumping unit may be used for an EDU. The engineering report must include an analysis that justifies the size of the selected pump(s).(3) An MEDU must be served by at least two pumps capable of pumping the peak flow with the largest pump out of service. The engineering report must include an analysis that justifies the size of the selected pumps.(4) The calculations in the engineering report must show that all lift stations and pump chambers are protected against buoyancy forces.(5) Control panels for all pumps must be at least 2.0 feet above the ground floor elevation of the structure being served by the equipment.(6) All pipes and appurtenances within a wet well must be corrosion-resistant.(7) A wet well must include an audiovisual alarm system.(A) An alarm for an EDU must activate at the high water level specified in the engineering report, plans, or specifications for the project.(B) An alarm for an MEDU must activate in the event of unit failure or a high water level.(8) An EDU wet well must have a reserve volume of at least 100 gallons after the activation of a high water alarm.(9) The reserve volume of an MEDU wet well must equal the volume accumulated during an average two-hour period or 100 gallons, whichever is greater.(10) A pump located in a STEP chamber that is integrated with an interceptor tank may use the reserve volume of the interceptor tank for the required reserve volume.(11) A housing that contains mechanical equipment or controls must be watertight if immersion of the mechanical equipment or controls would cause failure.(12) A control panel or other electrical enclosure must:(A) be constructed of corrosion-resistant materials;(B) be watertight;(C) prevent the migration and venting of odor to the panel or enclosure;(D) prevent the migration and venting of corrosive or explosive gases to the panel or enclosure; and(E) bear the seal of the Underwriter Laboratory, Inc. or comply with the National Fire Protection Association 70 National Electrical Code®.(13) STEP system equipment.(A) A pump used in a STEP system may be housed either in an interceptor tank or in a separate stand-alone unit.(B) A pump housed in the interceptor tank of a STEP system must be located in separate chamber from the influent chamber.(C) The water level in a STEP system pump chamber must not affect the water level in the interceptor tank, to prevent the disturbance of settleable and floatable solids in the interceptor tank.(D) A design that allows a variable liquid elevation in an interceptor tank is prohibited.(14) Housing for on-site mechanical equipment and any associated control mechanisms must be:(A) lockable and tamper-resistant;(B) constructed of corrosion-resistant material; and(C) designed to last at least 50 years.(15) A vault, chamber, wet well, or other structure used to contain wastewater must be:(A) watertight;(B) able to withstand any expected structural loading;(C) constructed of corrosion-resistant material; and(D) designed to last at least 50 years.(e) Discharge Pipe Requirements.(1) A discharge pipe and connections used to join on-site mechanical equipment to a service pipe must be pressure rated at a minimum of 2.5 times the maximum system design pressure.(2) Pipe material and valves must be corrosion-resistant.(3) A discharge pipe for a pressure system must include a check valve, a pipe union, and a full closing gate valve or ball valve. A check valve must precede a full closing gate valve.(4) A ball or gate valve must have a position indicator to show its open and closed positions.(5) A valve used at an MEDU must be located in a valve box separate from the on-site mechanical equipment.(f) Collection System Design.(1) The velocity of wastewater in a grinder pump pressure system main pipe must reach at least 3.0 feet per second at least once per day.(2) The velocity of wastewater in a grinder pump pressure system main pipe must not be less than 2.0 feet per second nor exceed 8.0 feet per second.(3) The velocity in a STEP system main pipe must reach at least 1.0 foot per second at least once per day.(4) A collection system head loss calculation must use a Hazen-Williams "C" factor appropriate to the pipe material. The use of a "C" factor greater than 140 is prohibited.(5) The pipe used in a pressure collection system must be at least 1.5 inches in diameter.(6) Pipe material must have the performance characteristics at least equivalent to ASTM D 2241 Class 200 PVC pipe.(7) A pipe equal to or greater than 3.0 inches in diameter requires elastomeric pipe joints.(8) A pumping unit affected by less than full flow conditions must incorporate an anti-siphon device.(9) An isolation valve must be located at:(A) each intersection of a collection system main pipe;(B) both sides of a stream crossing;(C) both sides of an area of unstable soil; and(D) maximum intervals of 2,500 feet.(10) An isolation valve must be:(A) a resilient seated gate valve or ball valve with a position indicator;(B) constructed from corrosion-resistant materials; and(C) located in a locked valve box.(11) Each peak in elevation and each location where air may accumulate due to a difference in flow conditions requires a wastewater air release valve.(A) A valve orifice must be at least 0.25 inches in diameter.(B) An air release valve within 50 feet of a residence or building must control odor. An owner shall implement odor control measures necessary to prevent a collection system from becoming a nuisance.(12) When intermediate pumping of wastewater is required, the design of a collection system lift station must meet the requirements of Subchapter C of this chapter (relating to Conventional Collection Systems).</content><note type="source"><p>Source Note: The provisions of this §217.97 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scD/s217.98"><num value="217.98">§217.98</num><heading>Vacuum Sewer Systems</heading><content>(a) A vacuum sewer system is a non-conforming technology. The executive director may review a vacuum sewer in accordance with §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals) and the criteria described in this section.(b) On-Site Component Design.(1) A building lateral must be constructed using pipe material that has performance characteristics at least equivalent to American Society for Testing and Materials (ASTM) D 2241 Class 160 polyvinyl chloride (PVC) pipe.(2) A building lateral must use a screened auxiliary vent no less than 4.0 inches in diameter and located no closer than 10.0 feet to a vacuum valve.(3) A vacuum valve control must be in a tamper-resistant, watertight, and corrosion-resistant structure.(4) A vacuum valve pit must be watertight to prevent surface and groundwater inflow.(5) A control mechanism that uses a pressure differential must use atmospheric air supplied by a screened breather on the lateral line. (6) A vacuum valve must have a minimum capacity of 30 gallons per minute.(7) A service pipe must be at least 3.0 inches in diameter. (8) The performance characteristics of a service pipe must meet or exceed the performance characteristics of ASTM D 2241 Class 200 PVC pipe.(9) A service pipe joint must be made using either vacuum-rated elastomeric gasket or solvent welding.(10) A vacuum valve and a main pipe must be separated by at least 5.0 feet of service pipe. (11) If there is a vertical profile change in a service pipe, the vacuum sewer system must have at least 5.0 feet between the vacuum valve and the first profile change, and between the last profile change and the main pipe.(12) A service pipe must have a minimum slope of 0.2%.(13) The connection of a service pipe to a main pipe must use a wye and a long radius elbow, oriented so that the invert of the service pipe is higher than the crown of the collection pipe, and must not be located within 6.0 feet of a collection pipe vertical profile change.(c) Vacuum Sewer System Design.(1) The performance characteristics of a pipe in a vacuum sewer must meet or exceed the performance characteristics of ASTM D 2241 Class 200 PVC pipe.(2) A pipe joint must have a vacuum-rated rubber gasket or be solvent welded.(3) A pipe in a vacuum sewer must be at least 4.0 inches in diameter. A service pipe must be at least 3.0 inches in diameter.(A) The length of a 4.0 inch diameter vacuum pipe must not exceed 2,000 feet.(B) The maximum length of a pipe larger than 4.0 inches in diameter must be determined by the amount of friction and lift head loss.(4) The total available head loss from the farthest input point in a system is 18 feet, consisting of five feet to operate the vacuum valve and 13 feet available for wastewater transport.(5) A vacuum sewer system must be laid out in a branched pattern designed to balance pressures within the system. A pipe must have a saw-tooth profile that slopes toward a vacuum station.(6) The design of an upgrade main line transport pipe must reduce the risk of blocking a pipe with trapped sewage.(7) A collection pipe that is depressed in order to avoid an obstruction must have at least a 20 foot segment centered on the obstruction.(8) An intersection of collection pipes must include a division valve at both sides of a watercourse crossing, at both sides of an area of unstable soil, and at intervals of no more than 1,500 feet.(A) A division valve must be either a plug valve or a resilient-seated gate valve capable of sustaining a vacuum of 24 inches of mercury. (B) A gauge tap must be located downstream of each division valve.(d) Vacuum station design. The vacuum pump capacity must be the greater of the capacities calculated using the following equations, but not less than 150 gallons per minute:Attached Graphic(e) Vacuum Pumps.(1) A vacuum pump must be capable of evacuating the system to restore the design vacuum pressure in less than 180 seconds.(2) The vacuum system must include duplicate vacuum pumps. Each vacuum pump must be capable of delivering 100% of the required airflow and be capable of operating continuously.(3) A vacuum pump may be either liquid-ring or sliding-vane type. Liquid-ring pumps must be sized at least 15% larger than the necessary vacuum pump capacity.(4) The transfer pipe must have an electrically or pneumatically controlled plug valve between the collection tank and the reservoir to prevent carryover of liquid into the pump.(f) Duplicate discharge pumps.(1) Duplicate discharge pumps are required and must have the capacity to deliver the peak flow with one pump out of service.(2) A discharge pump must be: (A) designed for vacuum sewage duty; (B) equipped with equalizing pipes; (C) capable of passing a 3.0 inch sphere; and (D) constructed from corrosion-resistant material.(3) A discharge pump must use double mechanical shaft seals and have shut-off valves on both the suction and discharge pipes.(4) The total dynamic head calculation must include the head attributed to overcoming the vacuum in the collection tank.(5) The available net positive suction head must be greater than the required net positive suction head for the expected vacuum operating range.(6) The pump suction pipe must be sized 2.0 inches larger than the discharge pipe to prevent wastewater from forming a vortex in the collection tank.(7) The pump design calculations and pump curves must be included in the engineering report.(g) Vacuum Reservoir.(1) A vacuum system that requires a collection tank of 1,600 gallons or more must also include a vacuum reservoir tank with a capacity of at least 400 gallons.(2) Liquid from a vacuum pump must be piped to the top of the vacuum reservoir tank.(3) A vacuum reservoir tank must include internal access for periodic cleaning and inspection.(4) All main pipes must connect to the collection tank.(5) The wastewater pump suction pipe must lie at the lowest point on the collection tank and away from the main pipe inlet.(6) The main pipe must enter at the top of the collection tank with the inlet elbows inside the tank turned at an angle away from the pump suction opening.(7) The collection tank must include probes for liquid level sensing for operation of the discharge pumps.(8) A vacuum pump must include automatic vacuum switch controls, which must operate based on the liquid level in the reservoir tank.(9) The collection tank and low system vacuum must include an audiovisual alarm for high liquid level.(h) An owner shall include a description of the alternative collection system's anti-corrosive protection in the engineering report.</content><note type="source"><p>Source Note: The provisions of this §217.98 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scD/s217.99"><num value="217.99">§217.99</num><heading>Testing Requirements</heading><content>(a) Components of an alternative collection system must be tested for water tightness by one of the methods shown in the following table:Attached Graphic(b) Hydrostatic Head Test for Pipe. The total infiltration or exfiltration, as determined by the hydrostatic head test, must not exceed 10 gallons per inch diameter per mile of pipe per 24 hours at a minimum head of 2.0 feet. If the quantity of infiltration or exfiltration exceeds the maximum quantity specified, the owner shall take remedial action to reduce the infiltration or exfiltration to an amount below the specified maximum limits.(c) Hydrostatic Head Test for Tanks. The test consists of filling the tank to the top and holding the water for 24 hours to determine whether the tank is leaking.(1) The hydrostatic head test must demonstrate that the tank is not leaking before the placement of backfill around a tank.(2) The hydrostatic head test for a tank constructed from flexible or semi-rigid material is required after placement and backfilling according to the tank manufacturer's recommendations.(d) Low-Pressure Air Test. The low-pressure air test must conform to the requirements of §217.57 of this title (relating to Testing Requirements for Installation of Gravity Collection System Pipes).(e) Pressure Pipe Test.(1) The test pressure must be a minimum of 25 pounds per square inch or 1.5 times the maximum pipe design pressure, whichever is larger. The maximum allowable leakage must be calculated using the following equation:Attached Graphic(2) If the leakage exceeds the maximum amount calculated, the owner shall take remedial action to reduce the leakage to an amount within the allowable limit from paragraph (1) of this subsection.(f) Vacuum Test for a Tank.(1) The test may begin only after establishing an initial stable vacuum of 4.0 inches of mercury.(2) The total vacuum loss during a vacuum test must not exceed 1.0 inch loss of mercury vacuum after five minutes.(3) A tank constructed of flexible or semi-rigid material must not allow more than a 3% change in tank dimensions in any direction while under vacuum.(4) If the quantity of vacuum loss or if tank deformation equals or exceeds the maximum quantity specified in paragraph (2) of this subsection, then the owner shall take remedial action to reduce the amount of vacuum loss or amount of deformation to comply with this subsection.</content><note type="source"><p>Source Note: The provisions of this §217.99 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scD/s217.100"><num value="217.100">§217.100</num><heading>Termination</heading><content>(a) An alternative collection system must terminate at a wastewater treatment facility or into a manhole that is part of a conventional collection system.(b) Release of gases must be controlled by minimizing turbulence in the discharge into a manhole.(c) An alternative collection system that terminates at a wastewater treatment facility must discharge below the liquid level at the headworks or the influent lift station.</content><note type="source"><p>Source Note: The provisions of this §217.100 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c217/scE"><num value="E">SUBCHAPTER E</num><heading>PRELIMINARY TREATMENT UNITS</heading><section identifier="/us/state/tx/tac/t30/p1/c217/scE/s217.120"><num value="217.120">§217.120</num><heading>General Preliminary Treatment Requirements</heading><content>(a) A wastewater treatment facility must be designed with the ability to add provisions for removing fats, oils, and grease (FOG) from the wastewater.(b) If fats, oils, or grease have caused operational failures in a treatment unit that is being altered, then FOG removal must be provided to prevent future failures.(c) The headworks of a wastewater treatment facility must have a screening device or a grinding device.(1) Screening devices include coarse screens and fine screens.(2) Grinding devices include grinder pumps, and other grinding devices approved in writing by the executive director.(d) A screening device or grinding device must not be housed in the same structure as an office or any other work area unless the area housing the screening device or grinding device is separated from the rest of the structure by an air-tight partition.(e) Each enclosure that houses a screening device or grinding device and is accessible to individuals must have a vent fan capable of providing at least 30 complete air exchanges per hour.(f) Each screening device or grinding device must be readily accessible for maintenance and screenings removal.(g) Any screening device located 4.0 feet or more below ground level must include mechanical equipment capable of lifting the screenings to ground level.(h) Screenings must be collected, managed, and disposed of in accordance with §217.123 of this title (relating to Screenings and Debris Handling) at a frequency that prevents creation of a nuisance.</content><note type="source"><p>Source Note: The provisions of this §217.120 adopted to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scE/s217.121"><num value="217.121">§217.121</num><heading>Coarse Screens</heading><content>(a) A wastewater treatment facility must use a coarse screen, unless all flow entering a wastewater treatment facility is processed through a grinder pump or grinding device.(b) A coarse screen must include an emergency overflow sized to handle the peak flow of the wastewater treatment facility.(c) A coarse screen must include a way to divert flow to the emergency overflow.(d) If the primary channel uses a mechanically cleaned coarse screen, the emergency overflow must also have a coarse screen.(e) Coarse Screen Design.(1) For a manually cleaned coarse screen, the clear openings between the bars must be at least 0.5 inch but not more than 1.0 inch.(2) For a mechanically cleaned coarse screen, the clear openings between the bars must be at least 0.25 inch but not more than 1.0 inch.(3) A manually cleaned coarse screen must use a bar rack sloped at least 30 degrees but not more than 60 degrees from horizontal.(4) A manually cleaned coarse screen must be attached to a horizontal platform that allows draining and temporary screenings storage to prevent unauthorized discharge between cleanings.(5) A mechanically cleaned coarse screen must be designed with equipment that automatically collects and disposes of screenings.(f) Coarse Screen Hydraulics.(1) The velocity of wastewater through a coarse screen must be at least 1.0 foot per second, but not more than 3.0 feet per second at design flow.(2) The inlet channel for a coarse screen must be designed to minimize the deposition of solids.(3) The flow line of the inlet channel must not exceed 6.0 inches below the invert elevation of the influent.(g) Corrosion Resistance. A coarse screen and related structures must be designed to resist the effects of a corrosive environment, including long-term exposure to hydrogen sulfide.</content><note type="source"><p>Source Note: The provisions of this §217.121 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scE/s217.122"><num value="217.122">§217.122</num><heading>Fine Screening Devices</heading><content>(a) A fine screen may be used in lieu of a coarse screen.(b) The clear openings in a fine screen must be less than 0.25 inch.(c) Any five-day biochemical oxygen demand (BOD5 ) reduction percentage claimed for a fine screen must be developed through a study conducted on actual full-scale operation of the proposed fine screen. The BOD5 reduction percentage claimed must not exceed 35%. (d) The engineering report must justify any reduction in the size of a treatment unit that is based on removal of BOD5 by a fine screen.(e) An owner who claims a BOD5 reduction credit must include a sufficient number of fine screen units so that any BOD5 reduction claimed will be met with the largest fine screen unit out of service.(f) A design may include a single fine screen unit only if the design includes an emergency overflow channel with a coarse screen to accept flow when the fine screen is out of service. No BOD5 removal credit is allowed with a single fine screen design.(g) A coarse screen must be provided ahead of a fine screen when the manufacturer of a fine screen recommends prescreening before the fine screen.(h) A moving or rotating fine screen must use a continuous cleaning device, such as water jets or wiper blades.(i) A fine screen unit must automatically convey the screenings to a storage area or processing unit that complies with §217.123 of this title (relating to Screenings and Debris Handling).(j) A fine screen must meet the manufacturer's recommendations with respect to velocity and head loss through the fine screen.(k) A fine screen must use either a bar rack or a perforated plate.</content><note type="source"><p>Source Note: The provisions of this §217.122 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scE/s217.123"><num value="217.123">§217.123</num><heading>Screenings and Debris Handling</heading><content>(a) A screening device must have a minimum storage capacity of one day of screenings and debris.(b) A container for screenings and debris must be fully covered with a tight-fitting cover designed to reduce vector attraction, or must use an alternative method of reducing vector attraction approved in writing by the executive director.(c) A storage area for screenings and debris must drain to the headworks of the wastewater treatment facility or the influent lift station and must include runoff control.(d) All screenings and debris must be collected in containers described in subsection (b) of this section and be managed and disposed of in accordance with Chapter 330 of this title (relating to Municipal Solid Waste).</content><note type="source"><p>Source Note: The provisions of this §217.123 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scE/s217.124"><num value="217.124">§217.124</num><heading>Grit Removal Systems</heading><content>(a) A wastewater treatment facility using anaerobic digestion must have a grit removal system. A grit removal system is optional for all other facilities.(b) A grit removal system includes units and processes capable of removing inert, non-biodegradable particles.(c) A grit removal system must include at least two units capable of operating at the peak flow of the wastewater treatment facility when grit removal is required by subsection (a) of this section.(d) Each grit removal system must include:(1) an emergency overflow to accept flow when a grit removal unit is off-line; and(2) a means of diverting flow to the emergency overflow.</content><note type="source"><p>Source Note: The provisions of this §217.124 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scE/s217.125"><num value="217.125">§217.125</num><heading>Grit Chambers</heading><content>(a) Horizontal Flow Grit Chambers.(1) Velocity through a horizontal flow grit chamber must range from 0.8 feet per second to no more than 1.3 feet per second.(2) A horizontal flow grit chamber channel must minimize turbulence and provide uniform velocity across the channel.(3) The channel size of a horizontal flow grit chamber must accommodate the grit removal equipment capacity and grit storage.(b) Aerated Grit Chambers.(1) The air diffuser and baffle arrangement in an aerated grit chamber must not interfere with the removal of particles with the design particle size and density.(2) The aeration equipment must be capable of varying air feed rates along the length of an aerated grit chamber from 3.0 standard cubic feet per minute (scfm) per linear foot to no more than 8.0 scfm per linear foot.(3) An aerated grit chamber must have a hydraulic detention time of at least 3.0 minutes.(4) An aerated grit chamber must include a grit hopper located under an air diffuser.(c) Mechanical Grit Chambers.(1) The velocity through mechanical grit chambers must be no greater than 1.0 foot per second at design flow.(2) Each mechanical grit chamber channel must include a grit hopper at the side of a tank contiguous to a grit removal mechanism.(3) An inlet must include baffles to prevent short-circuiting.(4) Grit removal must be provided by one of the following mechanisms:(A) reciprocating rake;(B) screw conveyor; or(C) air lift pump.(d) Cyclonic Degritters.(1) A cyclonic degritter must prevent an inlet-to-outlet short circuit.(2) A cyclonic degritter must include an adjustable apex with a quick disconnect assembly to remove any oversized object.(3) Detention time in a cyclonic degritter must be at least 1.0 minute at the design flow.(4) The flow velocity in a cyclonic degritter must be at least 1.0 foot per second but not more than 2.0 feet per second at the design flow.(5) A screening unit must be installed upstream of a cyclonic degritter.(e) Vortex Grit Chamber.(1) An inlet channel must include a straight length in order to deliver smooth flow into the vortex grit chamber.(2) The inlet velocity must be at least 2.0 feet per second at peak flow.(3) A vortex system must include rotating paddles in the center of the grit chamber, and must rotate at a maximum of 21 revolutions per minute.(4) An outlet channel must maintain a constant elevation.(5) Grit removal from a grit storage chamber must be achieved using pumps specifically designed to handle grit.</content><note type="source"><p>Source Note: The provisions of this §217.125 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scE/s217.126"><num value="217.126">§217.126</num><heading>Grit Handling</heading><content>(a) A grit washing unit or grit storage area must be designed to return recycled water and drainage to the headworks of the wastewater treatment facility.(b) A grit chamber located below ground level must include mechanical grit handling equipment.(c) Grit must be stored in a container with a tight-fitting cover and must be managed and disposed of in accordance with §217.123 of this title (relating to Screenings and Debris Handling).</content><note type="source"><p>Source Note: The provisions of this §217.126 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scE/s217.127"><num value="217.127">§217.127</num><heading>Pre-aeration Units</heading><content>(a) Pre-aeration units may be used at a wastewater treatment facility to:(1) control odor;(2) reduce septicity;(3) separate grease; or(4) promote uniform distribution of solids to clarifiers.(b) The engineering report must include the basis for the design of a pre-aeration system.</content><note type="source"><p>Source Note: The provisions of this §217.127 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scE/s217.128"><num value="217.128">§217.128</num><heading>Flow Equalization Basins</heading><content>(a) A wastewater treatment facility must be designed with a flow equalization basin if:(1) the total daily influent flow volume or total daily influent organic loading occurs during a period less than or equal to ten hours; or(2) the wastewater treatment facility receives an influent flow of less than 10% of its design flow or an influent organic loading less than 10% of its design organic loading during a period of time equal to or greater than 48 hours in any period of seven consecutive days.(b) A flow equalization basin must have an upstream screening device or grinding device.(c) A flow equalization basin must include an aeration system sized to maintain a dissolved oxygen level of at least 1.0 milligram per liter (mg/l) throughout the flow equalization basin.(d) A flow equalization basin must include a mixing system sufficient to prevent solids from settling.(e) The size of a flow equalization basin must be based on diurnal flow variations and the size and capacity of downstream process units. The engineering report must include the calculations justifying the size of a flow equalization basin.(f) For pumped flow to an equalization basin, the effluent from the basin must be controlled by a flow-regulating device capable of maintaining a flow rate that allows downstream process units to operate as designed.(g) For pumped flow from an equalization basin, a variable-speed pump or multiple pumps are required to deliver a constant flow to downstream treatment units.</content><note type="source"><p>Source Note: The provisions of this §217.128 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scE/s217.129"><num value="217.129">§217.129</num><heading>Primary Clarifiers</heading><content>(a) Inlets.(1) A primary clarifier inlet must provide uniform flow and stilling.(2) Vertical flow velocity through an inlet stilling well must not exceed 0.15 feet per second at peak flow.(3) An inlet distribution channel must not have a dead-end corner and must prevent the settling of solids in the channel.(4) An inlet structure must allow floating material to enter the clarifier.(b) Scum removal.(1) A primary clarifier must have scum baffles and a means of collecting and disposing of scum.(2) A primary clarifier must discharge scum to a sludge digester, or must use an alternative method of disposal approved in writing by the executive director.(3) The discharge of scum to any open drying area is prohibited.(4) A primary clarifier with a design flow equal to or greater than 25,000 gallons per day must include a mechanical skimmer. (5) A primary clarifier with a design flow less than 25,000 gallons per day must use a mechanical skimmer or hydraulic differential skimming. If hydraulic differential skimming is used, it must be capable of removing scum from the entire operating surface of the clarifier.(6) A pump used for pumping scum must be specifically designed to pump scum.(c) Effluent weirs.(1) An effluent weir must not cause turbulence or a localized vertical flow velocity that would pull solids over the effluent weir in the primary clarifier.(2) An effluent weir must be designed to prevent hydraulic short circuiting through a primary clarifier.(3) An effluent weir must be level, and must be designed to be adjustable for re-leveling.(4) Effluent weir loading must not exceed 20,000 gallons per day at peak flow per linear foot of weir length for a wastewater treatment facility with a design flow of 1.0 million gallons per day or less.(5) Weir loading must not exceed 30,000 gallons per day at peak flow per linear foot of weir length for a wastewater treatment facility with a design flow greater than 1.0 million gallons per day.(d) Primary clarifier basin sizing.(1) The surface area of a primary clarifier must be used to determine the proper weir overflow rates.(2) The actual primary clarifier size must be based on the larger of two surface area calculations: peak flow rate and design flow surface loading rate.(3) Surface loading rates and detention times for a primary clarifier in subparagraphs (A) and (B) of this paragraph are based upon a minimum side water depth of 10.0 feet.(A) Surface loading rates, excluding recirculation flow, must not exceed: (i) 1,800 gallons per day per square foot at peak flow; and(ii) 1,000 gallons per day per square foot at design flow. (B) Detention Time.(i) Detention time at peak flow must be at least 54 minutes (0.9 hour).(ii) Detention time at design flow must be at least 108 minutes (1.8 hours).(iii) Side water depth may be adjusted from a minimum of 10 feet to a maximum of 18 feet, as long as the detention time remains unchanged.(iv) The detention time must be based on the effective volume and the weir overflow rate of a circular or rectangular clarifier. (I) The effective volume includes all liquid above the sludge blanket.(II) For a cone bottom tank, the top of the sludge blanket is considered to be at the top of the cone.(III) The design of a flat bottom tank must include additional depth for a sludge blanket with a thickness of 3.0 feet.(e) Side Water Depth. The minimum side water depth for primary clarifiers is 10.0 feet. For a primary clarifier, the side water depth is defined as: (1) the water depth from the top of the cone in a cone bottom tank to the water surface; or (2) the water depth from 3.0 feet above the bottom of a flat bottom tank to the water surface.(f) Freeboard. The walls of a primary clarifier must extend at least 6.0 inches above the surrounding ground surface and must provide a minimum freeboard of 12.0 inches at peak flow.(g) Drains.(1) A primary clarifier must have the capability of draining completely without bypassing secondary treatment.(2) A portable dewatering pump may be used for complete dewatering.(h) Accessibility. A primary clarifier must be accessible for operation and maintenance.(i) Five-day biochemical oxygen demand (BOD5 ) Removal. The design of a primary clarifier must be based on no greater than 35% BOD5 reduction, unless a higher efficiency is justified by a pilot study or data from a similar full-scale operation.(j) Sludge Transfer.(1) A primary clarifier unit must include mechanical sludge collection equipment designed to remove sludge in a manner that will minimize odor development and transfer the sludge for subsequent processing.(2) A gravity sludge transfer pipe must be at least 8.0 inches in diameter.</content><note type="source"><p>Source Note: The provisions of this §217.129 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c217/scF"><num value="F">SUBCHAPTER F</num><heading>ACTIVATED SLUDGE SYSTEMS</heading><section identifier="/us/state/tx/tac/t30/p1/c217/scF/s217.151"><num value="217.151">§217.151</num><heading>Requirements for an Aeration Basin</heading><content>(a) Unless designed for advanced nutrient removal, an aeration basin must be designed to maintain a minimum dissolved oxygen concentration of 2.0 milligrams per liter (mg/l) throughout the aeration basin at the maximum diurnal organic loading rate determined in §217.32(a)(3) and Figure: 30 TAC §217.32(a)(3) of this title (relating to Organic Loading and Flows for New Wastewater Treatment Facilities).(b) The volume of aerated influent wastewater channels and aerated mixed liquor transfer channels of an activated sludge system may be used to meet aeration basin volume requirements, provided the activated sludge system uses aeration by diffused air and the diffuser depth conforms to the requirements of §217.155(b)(5)(A) of this title (relating to Aeration Equipment Sizing).(c) The use of a contact stabilization system for nitrification is prohibited.</content><note type="source"><p>Source Note: The provisions of this §217.151 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scF/s217.152"><num value="217.152">§217.152</num><heading>Requirements for Clarifiers</heading><content>(a) Inlets.(1) A clarifier must have an inlet valve or gate.(2) A clarifier inlet must provide uniform flow and stilling.(3) A transfer pipe must not trap or entrain air.(4) Vertical flow velocity through an inlet stilling well must not exceed 0.15 feet per second at peak flow.(5) An inlet distribution channel must be designed to prevent the settling of solids in the channel.(b) Pumped Inflow.(1) For a wastewater treatment facility with pumped inflow, a clarifier must be able to accommodate all flow without overloading or overtopping the clarifier effluent weir.(2) A clarifier must hydraulically accommodate peak flows without adversely affecting treatment in the clarifier or in subsequent treatment units.(c) Scum removal.(1) A clarifier must include scum baffles and a means for scum collection and disposal.(A) A clarifier at a wastewater treatment facility with a design flow equal to or greater than 10,000 gallons per day must use a mechanical skimmer.(B) A clarifier at a wastewater treatment facility with a design flow less than 10,000 gallons per day may use either mechanical skimming or hydraulic differential skimming. Hydraulic differential skimming may only be used if the scum pickup is capable of removing scum from the entire operating surface of the clarifier.(2) Scum collected from a clarifier in a wastewater treatment facility using an activated sludge process or an aerated lagoon must be: (A) discharged to an aeration basin or digester; or (B) disposed of using any method that complies with Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation). (3) If scum contains debris or foreign materials that were not removed by preliminary treatment, debris and foreign materials must be removed from the scum before the scum is discharged to a digester or applied to the land. Otherwise, scum containing debris or other foreign materials must be sent to a landfill or a sludge-only monofill.(4) Scum collected from a clarifier in a wastewater treatment facility not using an activated sludge process and not using an aerated lagoon must be discharged to a sludge digester or must be disposed of using any disposal method that complies with Chapter 312 of this title.(5) Discharge of scum to a drying area that is open to the atmosphere is prohibited.(6) Storage or holding of scum in a containment vessel that is open to the atmosphere is prohibited. Scum must be contained in a vessel that is not open to the atmosphere or must be routed to a treatment unit in the wastewater treatment facility for further processing.(7) A pump used for pumping scum must be specifically designed to pump scum.(d) Clarifier Effluent Weirs.(1) A clarifier effluent weir must prevent turbulence or localized high vertical flow velocity in a clarifier.(2) A clarifier effluent weir must be located a minimum of 6.0 inches from an outer wall or baffle, except for a clarifier effluent weir and launder that is attached to a wall. A clarifier effluent weir must prevent the short-circuiting of flow throughout the clarifier.(3) A clarifier effluent weir must be level, and must be adjustable to allow re-leveling of the weir and to provide for minor changes to the water surface elevation in the clarifier.(4) For a wastewater treatment facility with a design flow of less than 1.0 million gallons per day, the clarifier effluent weir loading must not exceed 20,000 gallons per day at the peak flow per linear foot of weir length.(5) For a wastewater treatment facility with a design flow equal to or greater than 1.0 million gallons per day, the clarifier effluent weir loading must not exceed 30,000 gallons per day at the peak flow per linear foot of weir length.(6) A center-feed circular clarifier must have effluent weirs around the entire perimeter of the clarifier.(e) Sludge Pipes.(1) The transfer of sludge from a clarifier to a treatment or processing unit must not negatively affect treatment efficiency of the unit that receives the sludge.(2) A sludge pipe must be a minimum of 4.0 inches in diameter.(3) The flow velocity in a sludge pipe must be greater than 2.0 feet per second for a wastewater treatment facility with a design flow greater than 150,000 gallons per day. For a wastewater treatment facility with a design flow of 150,000 gallons per day or less, the flow velocity in the sludge pipe must be greater than 0.5 feet per second. The executive director may consider approving lower velocities in writing for a wastewater treatment facility that uses a biological nutrient removal process, on a case-by-case basis.(4) A sludge pipe must be accessible for cleaning. (5) A means to remove a blockage from all sludge pipes must be provided at the wastewater treatment facility.(f) Sludge Collection Equipment.(1) A clarifier that is part of a wastewater treatment facility with a design flow of 10,000 gallons per day or greater must include mechanical sludge collecting equipment.(2) A clarifier that is part of a wastewater treatment facility with a design flow of less than 10,000 gallons per day must include manual equipment designed to move settled sludge to the sludge collection pipe, unless mechanical sludge collecting equipment is provided.(g) Side Water Depth.(1) For a secondary clarifier, the side water depth is defined as: (A) the water depth from the top of the cone in a cone bottom tank to the water surface; or (B) the water depth from 2.0 feet above the bottom of a flat bottom tank to the water surface.(2) The minimum side water depth for a clarifier with a mechanical sludge collector is: (A) 10.0 feet if the surface area is equal to or greater than 300 square feet; and(B) 8.0 feet if the surface area is less than 300 square feet.(3) A clarifier with a hopper bottom must have a minimum side water depth of 8.0 feet, not including the hopper and sump. The corresponding surface area and surface loading relationships in Figure: 30 TAC §217.152(g)(3) must be used. Attached Graphic(4) The hopper portion of a hopper bottom clarifier must have a vertical depth of at least 4.0 feet. (h) Restrictions on Hopper Bottom Clarifiers.(1) A hopper bottom clarifier is prohibited for use in a wastewater treatment facility with a design flow equal to or greater than 10,000 gallons per day.(2) Each hopper cell of a hopper bottom clarifier must have individually controlled sludge removal equipment.(3) A hopper bottom clarifier must have a smooth wall finish.(4) A hopper bottom clarifier must have an upper hopper slope of not less than 60 degrees from horizontal.(i) Restrictions on Short Circuiting. The influent stilling baffle and effluent clarifier weir must prevent hydraulic short circuiting.(j) Return Sludge Pumping Capacity.(1) The capacity of a return sludge pumping system must be calculated based on the area of the activated sludge clarifier or clarifiers, including the stilling well area.(2) The return sludge pumping capacity must be equal to or greater than the clarifier underflow rate in gallons per day per square foot (gpd/sf) with the largest pump out of service.(3) A return sludge pumping system must be capable of pumping at least 200 gpd/sf but not more than 400 gpd/sf.(4) The return sludge pumping capacity must be controlled via throttling, variable speed drives, or multiple pump operation.</content><note type="source"><p>Source Note: The provisions of this §217.152 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scF/s217.153"><num value="217.153">§217.153</num><heading>Requirements for Both Aeration Basins and Clarifiers</heading><content>(a) Construction. Construction material for aeration basins and clarifiers must be resistant to the effects of a corrosive wastewater environment.(1) Aeration basins and clarifiers must not be buoyant when empty.(2) Structures using a common wall must be designed to accommodate the stresses generated when one basin is full and an adjacent basin is empty.(3) Aeration basin and clarifier walls must be watertight.(b) Freeboard.(1) An aeration basin must have a minimum freeboard of 18 inches at the peak flow.(2) A clarifier must have a minimum freeboard of 12 inches at the peak flow.(c) Redundancy and Flow Control.(1) A wastewater treatment facility with a design flow equal to or greater than 0.4 million gallons per day must have a minimum of two aeration basins and two clarifiers. Aeration basins are exempt from this requirement if the aeration equipment, including the diffusers, is removable without taking the aeration basin out of service.(2) Internal and interconnecting pipes must be capable of hydraulically handling the peak flow without overflow while either the largest clarifier or the largest aeration basin is out of service.(3) Each aeration basin and clarifier must have gates or valves to allow it to be hydraulically isolated.(4) Each aeration basin and clarifier must have a dedicated means for draining.</content><note type="source"><p>Source Note: The provisions of this §217.153 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scF/s217.154"><num value="217.154">§217.154</num><heading>Aeration Basin and Clarifier Sizing--Traditional Design</heading><content>(a) This section applies to the traditional approach for sizing an aeration basin and clarifier, and is based on empirically-derived design values that have been used historically as standard engineering practice.(b) Aeration Basin Sizing.(1) An aeration system must be designed to maintain a minimum dissolved oxygen concentration of 2.0 milligrams per liter (mg/l) throughout the aeration basin at the maximum diurnal organic loading rate determined in §217.32(a)(3) and Figure: 30 TAC §217.32(a)(3) of this title (relating to Organic Loading and Flows for New Wastewater Treatment Facilities). The executive director may consider alternative dissolved oxygen specifications for designs that include biological nutrient removal or tapered aeration for energy conservation, which must be approved in writing.(2) Based on the calculated organic load, the aeration basin volume must be designed to ensure that the organic loading on the aeration basin does not exceed the organic loading rates in the following table:Attached Graphic(3) When identifying the aeration basin temperature for the process design in Table F.1. in Figure: 30 TAC §217.154(b)(2), the owner must use the average of the lowest consecutive seven-day mean aeration basin temperature from a wastewater treatment facility with similar characteristics. For purposes of this subsection, a similar wastewater treatment facility: (A) is located within 50 miles of the wastewater treatment facility where the planned aeration basin or system will be installed;(B) uses the same placement of the aeration basin (in-ground or above-ground); and(C) has any other characteristics required by the executive director in writing.(c) Clarifier Sizing.(1) The following table establishes the maximum surface loading rates and the minimum detention times that must be used to determine the size of a clarifier:Attached Graphic(2) A clarifier must meet both the detention time and weir overflow rate criteria in Table F.2. in Figure: 30 TAC §217.154(c)(1). (A) When calculating weir overflow rates for a clarifier, return activated sludge flow must not be used in the calculation of the maximum weir overflow rate, in compliance with Table F.2. in Figure: 30 TAC §217.154(c)(1).(B) When calculating the weir overflow rate for a clarifier, the surface area of the stilling well may be included as part of the clarifier surface area.</content><note type="source"><p>Source Note: The provisions of this §217.154 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scF/s217.155"><num value="217.155">§217.155</num><heading>Aeration Equipment Sizing</heading><content>(a) Oxygen Requirements (O2R) of Wastewater.(1) An aeration system must be designed to provide a minimum dissolved oxygen concentration in the aeration basin of 2.0 milligrams per liter (mg/l).(2) Mechanical and diffused aeration systems must supply the O2R calculated by Equation F.2. in Figure: 30 TAC §217.155(a)(3), or use the recommended values presented in Table F.3. in Figure: 30 TAC §217.155(a)(3), whichever is greater.(3) The O2R values in Table F.3. in Figure: 30 TAC §217.155(a)(3) use concentrations of 200 mg/l five-day biochemical oxygen demand (BOD 5 ) and 45 mg/l ammonia-nitrogen (NH3-N) in Equation F.2. in Figure: 30 TAC §217.155(a)(3):Attached Graphic(b) Diffused Aeration System. An airflow design must be based on either paragraph (1) or (2) of this subsection.(1) Design Airflow Requirements - Default Values. A diffused aeration system may use Table F.4. in Figure: 30 TAC §217.155(b)(1) to determine the airflow for sizing aeration system components:Attached Graphic(2) Design Airflow Requirements - Equipment and Site Specific Values. A diffused aeration system may be based on calculations of the airflow requirements for the diffused aeration equipment in accordance with subparagraphs (A) - (D) of this paragraph.(A) Determine Clean Water Oxygen Transfer Efficiency.(i) A diffused aeration system design may be based on a clean water oxygen transfer efficiency greater than 4%, only if the clean water oxygen transfer efficiency is supported by full scale diffuser performance data. Full scale performance data must be developed by an accredited testing laboratory or a licensed professional engineer. Data developed by a professional engineer must be sealed by the engineer.(ii) A testing laboratory or licensed engineer shall use the oxygen transfer testing methodology described in the most current version of the American Society of Civil Engineers (ASCE) publication, A Standard for the Measurement of Oxygen Transfer in Clean Water. (iii) A diffused aeration system with a clean water transfer efficiency greater than 18% for a coarse bubble system or greater than 26% for a fine bubble system is considered an innovative technology and is subject to §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals).(iv) A design for clean water transfer efficiencies obtained at temperatures other than 20 degrees Celsius must be adjusted for a diffused aeration system to reflect the approximate transfer efficiencies and air requirements under field conditions by using the following equation:Attached Graphic(B) Determining Wastewater Oxygen Transfer Efficiency (WOTE).(i) The WOTE must be determined from clean water test data by multiplying the clean water transfer efficiency by 0.65 for a coarse bubble diffuser or by multiplying the clean water transfer efficiency by 0.45 for a fine bubble diffuser.(ii) The executive director may require additional testing and data to justify actual WOTE for a wastewater treatment facility treating wastewater containing greater than 10% industrial wastes.(C) Determining Required Airflow (RAF). The RAF must be calculated using the following equation to determine the size needed for a diffuser submergence of 12.0 feet. If the diffuser submergence is other than 12.0 feet, a diffused aeration system must correct the RAF, as detailed in subparagraph (D) of this paragraph.Attached Graphic(D) Corrections to RAF based on varying diffuser submergence depths. The engineer shall provide the manufacturer's laboratory testing data if the diffuser submergence depth in the design is the same as the diffuser submergence depth in the manufacturer's testing. The engineer shall apply a correction factor from Table F.5. in Figure: 30 TAC §217.155(b)(2)(D) to the required airflow rate calculated using Equation F.4. in Figure: 30 TAC §217.155(b)(2)(C) if the manufacturer's laboratory testing data is not available for the design diffuser submergence depth. Linear interpolation is allowed for diffuser submergence depths not shown in Table F.5. in Figure: 30 TAC §217.155(b)(2)(D). Attached Graphic(3) Mixing Requirements for Diffused Air. The air requirements for mixing must be calculated using an airflow rate: (A) from Design of Municipal Wastewater Treatment Plants, Fifth Edition, Chapter 11, a joint publication of the ASCE and the Water Environment Federation, for mixing requirements; or (B) greater than or equal to 20 standard cubic feet per minute (scfm) per 1,000 cubic feet for a coarse bubble diffuser and greater than or equal to 0.12 scfm per square foot for a fine bubble diffuser.(4) Blowers and Air Compressors.(A) A blower and an air compressor system must provide the required design airflow rate for biological treatment and mixing, based on paragraphs (1) - (3) of this subsection, and the air requirements of all other supplemental units where air must be supplied.(B) The engineering report must include blower and air compressor calculations that show the maximum air requirements for the temperature range where the wastewater treatment facility is located, including both summer and winter conditions, and the impact of elevation on the air supply.(C) A diffused aeration system must have multiple compressors arranged to provide an adjustable air supply to meet the variable organic load on the wastewater treatment facility.(D) The air compressors must be capable of handling the maximum design air requirements with the largest single air compressor out of service.(E) A blower unit and a compressor unit must restart automatically after a power outage, or have a telemetry system or an auto-dialer with battery backup to notify an operator of any outage.(F) The design of a blower and air compressor system must specify blowers and air compressors with sufficient capacity to handle air intake temperatures that may exceed 100 degrees Fahrenheit (38 degrees Celsius), and pressures that may be less than standard (14.7 pounds per square inch absolute).(G) The design of a blower and air compressor system must specify the capacity of the motor drive necessary to handle air intake temperatures that may be 20 degrees Fahrenheit (-7 degrees Celsius) or less.(H) A blower must include a governor or other means to regulate airflow.(5) Diffuser Systems - Additional Requirements.(A) Diffuser Submergence.(i) For a new wastewater treatment facility, the submergence depth for any diffuser must meet the minimum depths in the following table:Attached Graphic(ii) For an alteration or expansion of an existing wastewater treatment facility, the diffuser submergence depth may vary from the values in Table F.6. in Figure: 30 TAC §217.155(b)(5)(A)(i) to match existing air pressure, delivery rate, and hydraulic requirements. (iii) The submerged depth for a diffuser must be at least 7.0 feet. A wastewater treatment facility with a design flow of less than 5,000 gallons per day may have a diffuser submergence depth of less than 7.0 feet, but only if justified by the engineer and approved in writing by the executive director.(B) Grit Removal. A wastewater treatment facility that uses diffusers and has wastewater with concentrations of grit that would interfere with the operation of a diffuser must either include a grit removal unit upstream of an aeration process, or include multiple aeration basins so that one basin may be taken out of service to allow for grit removal.(C) Aeration System Pipes.(i) Each diffuser header must include an open/close or throttling type control valve that can withstand the heat of compressed air.(ii) A diffuser header must be able to withstand temperatures up to 250 degrees Fahrenheit.(iii) The capacity of an air diffuser system, including pipes and diffusers, must equal 150% of design air requirements.(iv) The design of an aeration system must minimize head loss. The engineering report must include a hydraulic analysis of the entire air pipe system that quantifies head loss through the pipe system and details the distribution of air from the blowers to the diffusers.(v) An aeration system may use non-metallic pipes only in the aeration basin, but the pipes must be a minimum of 4.0 feet below the average water surface elevation in the aeration basin.(c) Mechanical Aeration Systems.(1) Required Airflow - Equipment and Site Specific Values. The airflow requirements for a mechanical aeration system must be calculated in accordance with subparagraphs (A) and (B) of this paragraph.(A) Clean Water Oxygen Transfer Efficiency.(i) The engineering report must include the clean water oxygen transfer efficiency rate for the mechanical equipment.(ii) The clean water oxygen transfer efficiency must not exceed 2.0 pounds of oxygen per horsepower-hour unless justified by full scale performance data. Full scale performance data must be developed by an accredited testing laboratory or a licensed professional engineer. Data developed by a professional engineer must be sealed by the engineer. Full scale performance tests must follow the oxygen transfer testing methodology described in the most current version of the ASCE publication, A Standard for the Measurement of Oxygen Transfer in Clean Water. (iii) A technology with a proposed clean water oxygen transfer efficiency in excess of 2.0 pounds of oxygen per horsepower-hour is innovative technology and subject to the requirements of §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals). (B) Wastewater Oxygen Transfer Efficiency.(i) The engineering report must include the actual wastewater oxygen transfer efficiency and data to justify the actual wastewater oxygen transfer efficiency.(ii) If a wastewater treatment facility will receive more than 10% industrial wastewater by volume, all mechanical aeration equipment must be sized based on a wastewater oxygen transfer efficiency of no more than 0.65 times the clean water oxygen transfer efficiency.(2) Mixing Requirements.(A) A mechanical aeration device must provide mixing to prevent mixed liquor suspended solids (MLSS) deposits under any flow condition.(B) A mechanical aeration device must be capable of re-suspending the MLSS after a shutdown period.(C) Mechanical aeration devices with a channel or basin layout must have a minimum of 100 horsepower per million gallons of aeration basin volume or 0.75 horsepower per thousand cubic feet of aeration basin volume.(3) Mechanical Components.(A) Process Reliability.(i) Each aeration basin must include a minimum of two mechanical aeration devices.(ii) A mechanical aeration device must meet the maximum design requirements for oxygen transfer with the largest single unit out of service.(iii) A mechanical aeration device must either automatically restart after a power outage, or have a telemetry system or an auto-dialer with battery backup to notify an operator of any outage.(B) Operation and maintenance.(i) A mechanical aeration device must have two-speed or variable-speed drive units, unless another means of varying the output is provided.(ii) To vary the output, a mechanical aeration device may use single-speed drive units with timer-controlled operation if the device also includes an independent means of mixing.(iii) A wastewater treatment facility must be designed such that an operator is able to perform routine maintenance on the aeration equipment without coming into contact with wastewater.(iv) Each bearing, drive motor, or gear reducer must be accessible to an operator for maintenance and must be equipped with a splash prevention device. A splash prevention device must be designed to protect the operator from contact with wastewater and to prevent wastewater from escaping the basin.(v) Each gear reducer must have a drainage system to prevent operator contact with mixed liquor.</content><note type="source"><p>Source Note: The provisions of this §217.155 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scF/s217.156"><num value="217.156">§217.156</num><heading>Sequencing Batch Reactors</heading><content>(a) System Sizing and Reliability.(1) A sequencing batch reactor (SBR) must meet the reliability requirements in §217.155(b) and (c)(3) of this title (relating to Aeration Equipment Sizing), and power source reliability requirements in §217.36 of this title (relating to Emergency Power Requirements).(2) An SBR must have a minimum decantable volume that is sufficient to pass the design flow, and must be capable of meeting permitted effluent limits, with the largest basin out of service.(3) A two-basin wastewater treatment facility without removable aeration devices is required to have aerated storage of mixed liquor separate from the SBR tank(s).(4) An SBR with a fixed level decanter must have more than two basins and additional decantable storage volume.(5) An equalization basin is required if an SBR has fixed decant equipment and decant volumes that do not accommodate the peak flow.(6) Organic loadings must conform to the values in Table F.1. in Figure: 30 TAC §217.154(b)(2) of this title (relating to Aeration Basin and Clarifier Sizing--Traditional Design). Organic loadings must be below 35 pounds of five-day biochemical oxygen demand per 1,000 cubic feet of tank volume.(7) The reactor mixed liquor suspended solids (MLSS) level at the normal operating level must range from at least 3,000 milligrams per liter (mg/l) to not more than 5,000 mg/l.(8) The minimum depth of the MLSS during a react phase is 9.0 feet.(9) The minimum side water depth of an SBR tank is 12 feet.(10) An SBR must include sludge digestion pursuant to the requirements in Subchapter J of this chapter (relating to Sludge Processing).(b) Decanter Design.(1) A decanter must control the velocity at an inlet port or at the edge of submerged weirs to prevent vortexing, disturbance of the settled sludge, and entry of floating materials.(2) The entrance velocity to a decanter must not exceed 1.0 foot per second.(3) A decanter must draw effluent from below the water surface and include a device that excludes scum.(4) A decanter must maintain a zone of separation between the settled sludge and the decanter of no less than 12 inches.(5) A decanter must prevent solids from entering the decanter during a react cycle by using one the following methods:(A) recycling treated effluent to wash out solids trapped in a decanter;(B) mechanically closing a decanter when it is not in use; or(C) filling a decanter with air except during a decant period.(6) The performance of a decanter and related pipes and valves must not be affected by ambient temperatures below 32 degrees Fahrenheit.(7) A fixed decanter is prohibited in a basin where simultaneous fill and decant may occur.(8) For any system of tanks that is fed sequentially, the size of the decant system must accommodate the design flow with a constant cycle time with the largest tank out of service.(9) An SBR system utilizing more than two basins must allow the decanting of at least two tanks simultaneously.(10) If units downstream of an SBR are not capable of accepting the peak flow rate of the decanting cycle, flow equalization must be provided between the decanter and the downstream units.(c) SBR Tank Details.(1) An SBR requires multiple tanks.(2) An SBR with two tanks or an SBR system operating with a continuous feed during settling and decanting phases must include influent baffling and physical separation from the decanter.(3) An elongated tank must be used for an SBR system if influent baffling is required.(4) An SBR tank must have a minimum freeboard of 18 inches at the maximum liquid level.(5) An SBR tank must not be buoyant when empty.(6) Structures using a common wall must be designed to accommodate the stresses generated when one basin is full and an adjacent basin is empty.(7) Each SBR wall must be watertight.(8) A sump must be provided in any basin with a flat bottom.(9) An SBR system must have a dedicated means of transferring sludge between aeration basins.(10) An SBR system must include a means of scum removal in each aeration basin.(11) Each SBR tank must include a dewatering system and an emergency overflow to another aeration tank or a storage tank.(12) At a wastewater treatment facility that is not staffed 24-hours per day, a manually operated SBR tank must include a high-level alarm that notifies wastewater treatment facility staff in accordance with §217.161 of this title (relating to Electrical and Instrumentation Systems).(13) A design must specify the means and frequency for removal of grit and other debris from the SBR tanks.(14) All equipment must be accessible for inspection, maintenance, and operation. Walkways shall be provided to allow inspection, maintenance, and process control sampling and to allow access to instrumentation, mechanical equipment, and electrical equipment.(15) An SBR may use fine screens pursuant to §217.122 of this title (relating to Fine Screens).(16) An SBR preceded by a primary clarifier may use a comminutor.(17) An SBR must have a sufficient number of tanks to operate at design flow with the largest tank out of service.(d) Aeration and Mixing Equipment.(1) In addition to the requirements of §217.155 of this title, aeration equipment must handle the cyclical operation in an SBR.(2) The aeration and mixing equipment must not interfere with settling.(3) A dissolved oxygen concentration of 2.0 mg/l must be maintained in a tank during the fill cycle.(4) The design must specify the blower discharge pressure at the maximum water depth.(5) An SBR used for biological nutrient removal or reduction must meet the design requirements of §217.163 of this title (relating to Advanced Nutrient Removal).(6) The design of an SBR must allow for the removal of air diffusers or mechanical aeration devices without dewatering the tank.(e) Control Systems.(1) The motor control center must include programmable logic controllers (PLC) that are able to operate with limited operator adjustment and be programmed to meet the effluent limitations in the wastewater permit at the design loadings. An SBR must have the ability to run in full manual mode.(2) A hard-wired backup means of operating the SBR is required.(3) The PLC must include battery backup. A duplicate set of all circuit boards must be kept at the wastewater treatment facility.(4) Adequate controls for the separate operation of each tank must be provided.(5) A tank level system must include floats or pressure transducers.(A) A float system must be protected from prevailing winds and freezing.(B) A bubbler system in a tank level system is prohibited.(6) The control panel switches must include the following switches:(A) pumps - hand/off/automatic;(B) valves - open/closed/automatic;(C) blowers or aerators - hand/off/automatic; and(D) selector switch for tank(s) - in operation/standby.(7) The control panel visual displays must include:(A) a mimic diagram of the process that shows the status and position of all pumps, valves, blowers, aerators, and mixers;(B) process cycle and time remaining;(C) instantaneous and totalized influent flow to the wastewater treatment facility and effluent flow of the final discharge;(D) tank level gauges or levels;(E) sludge pumping rate and duration; and(F) airflow rate and totalizer.(8) The annunciator panel must include the following alarm condition indicators:(A) high and low water levels in each tank;(B) failure of all automatically operated valves;(C) decanter failure;(D) blowers, if used - low pressure, high temperature, and failure;(E) mechanical aerator, if used - high temperature and failure;(F) pump - high pressure and failure; and(G) mixers, if used - failure.</content><note type="source"><p>Source Note: The provisions of this §217.156 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scF/s217.157"><num value="217.157">§217.157</num><heading>Membrane Bioreactor Systems</heading><content>(a) Applicability.(1) This section contains criteria for low-pressure, vacuum, and gravity ultrafiltration or microfiltration membrane bioreactors (MBRs).(2) Other types of MBRs are considered innovative technology and are subject to the requirements of §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals).(b) Definitions.(1) Flat plate system--A membrane bioreactor that arranges membranes into rectangular cartridges with a porous backing material that provides structural support between two membranes.(2) Gross flux rate--The volume of water that passes through a membrane, measured in gallons per day per square-foot of membrane area at a standard temperature of 20 degrees Centigrade.(3) Hollow fiber system--A membrane bioreactor composed of bundles of very fine membrane fibers, approximately 0.5 - 2.0 millimeters in diameter, held in place at the ends with hardened plastic potting material, and supported on stainless steel frames or rack assemblies. The outer surface of each fiber is exposed to the mixed liquor with filtrate flow from outside to inside through membrane pores.(4) Net flux rate--The gross flux rate adjusted for production lost during backwash, cleaning, and relaxation.(5) Transmembrane pressure--The difference between the average pressure on the feed side of a membrane and the average pressure on the permeate side of a membrane.(6) Tubular system--A system in which sludge is pumped from an aeration basin to a pressure driven membrane system outside of a bioreactor where the suspended solids are retained and recycled back into the bioreactor while the effluent passes through a membrane.(c) Performance Standards.(1) MBR performance standards for conventional pollutants and nutrients are shown in the following table: Attached Graphic(2) The executive director may require an owner to submit a pilot study report or data from a similar wastewater treatment facility if a wastewater treatment facility is designed to achieve higher quality effluent than the performance standards listed in Table F.7. in Figure: 30 TAC §217.157(c)(1). A similar wastewater treatment facility must have similar characteristics including: (A) climate region;(B) peak flows;(C) customer base, including sources and percent contribution; and(D) other characteristics required by the executive director.(d) Wastewater Treatment Facility Design.(1) Pretreatment.(A) Each MBR system must have fine screening to prevent damage from abrasive particles or fibrous, stringy material.(i) Fine screens must be rotary drum or traveling band screens with either perforated plates or wire mesh.(ii) Fine screens for hollow fiber or tubular systems must have an opening size of 0.5 - 2.0 millimeter (mm).(iii) Fine screens for flat plate systems must have an opening size of 2.0 - 3.0 mm.(iv) Bypass of a fine screen must be prevented by use of a duplicate fine screen, emergency overflow to a wet well, or an alternative method that has been approved in writing by the executive director.(v) A fine screen must be designed to prevent bypass at the peak flow.(vi) Coarse screens may be used ahead of fine screens to reduce the complications of fine screening.(B) The economic feasibility of primary sedimentation must be evaluated for facilities designed for an average daily flow of 5.0 million gallons per day or more. The economic feasibility evaluation must be included in the engineering report.(C) Fat, oil, and grease removal is required if the levels of fat, oil, and grease in the influent may cause damage to the membranes. The specific detrimental concentration must be determined by the equipment manufacturer. Influent concentrations of fat, oil, and grease equal to or more than 100 milligrams per liter (mg/l) must have fat, oil, and grease removal.(D) The necessity of grit removal must be evaluated for a wastewater treatment facility that has a collection system with excessive inflow and infiltration. Excessive grit accumulation is characterized by grit accumulation in any treatment unit following the headworks. An evaluation must be included in the engineering report.(2) Biological Treatment.(A) The reactor volume must be determined using rate equations for substrate utilization and biomass growth according to §217.154 of this title (relating to Aeration Basin and Clarifier Sizing--Traditional Design), or another method approved by the executive director in writing. (B) The design sludge retention time (SRT) for an MBR must be at least 10 days, but not more than 25 days.(C) The design operational range of mixed liquor suspended solids (MLSS) concentration must be: (i) at least 4,000 mg/l but not more than 10,000 mg/l in the bioreactor; and (ii) at least 4,000 mg/l but not more than 14,000 mg/l in the membrane tank.(D) An MBR system designed for an SRT or MLSS outside the ranges in subparagraph (C) of this paragraph requires a pilot study in compliance with paragraph (8) of this subsection or data from a similar wastewater treatment facility that demonstrates that the design parameters are sustainable and can achieve the expected performance to the executive director's satisfaction.(3) Aeration.(A) An aeration system in an MBR must be capable of maintaining dissolved oxygen levels as listed in subparagraph (C) of this paragraph.(B) An aeration system in an MBR must compensate for low oxygen transfer efficiency associated with the maximum MLSS concentrations established in paragraph (2)(C) of this subsection. The alpha value used to determine design oxygen transfer efficiency must be 0.5 or lower.(C) The oxygen concentration range used for sizing aeration systems for treatment zones must be: (i) not more than 0.5 mg/l for anoxic basins; (ii) at least 1.5 mg/l but not more than 3.0 mg/l for aerobic basins; and (iii) at least 2.0 mg/l but not more than 8.0 mg/l for membrane basins.(D) An MBR must include dissolved oxygen monitoring and an alarm to notify an operator if dissolved oxygen levels are outside of the design operating range, or if there is a rapid decrease in dissolved oxygen. Alarm systems must comply with §217.161 of this title (relating to Electrical and Instrumentation Systems).(4) Recycle Rates. Facilities without advanced nutrient removal must be designed with recycle rates sufficient to sustain the design mixed liquor concentrations (typically from 200% to 400% of the wastewater treatment facility's influent flow).(5) Nutrient Removal.(A) A system designed for advanced nutrient removal must include an isolated tank or baffled zone to separate anoxic, anaerobic, and aerobic treatment zones.(B) The engineer shall submit calculations to support the sizing of the reactor volumes.(C) If recycled activated sludge is returned to an anoxic or anaerobic basin, a wastewater treatment facility designed for total nitrogen or advanced nutrient removal must contain a deoxygenation basin, a larger anoxic basin, or another method of decreasing dissolved oxygen concentration approved in writing by the executive director.(D) An advanced nutrient removal system must be designed with recycle rates sufficient to sustain the designed mixed liquor concentrations in both the aeration, anoxic, and anaerobic basins (sufficient recycle rates are typically 600% or more of the influent flow).(6) Use of Membranes.(A) Use of a membrane system other than a hollow fiber system, tubular system, or a flat plate system is considered an innovative technology and is subject to §217.7(b)(2) of this title.(B) The engineering report must provide justification for the use of a membrane material other than one of the following: (i) polyethersulfone (PES); (ii) polyvinylidene fluoride (PVDF); (iii) polypropylene (PP); (iv) polyethylene (PE); (v) polyvinylpyrrolidone (PVP); or (vi) chlorinated polyethylene (CPE).(C) The nominal pore size used in an MBR for microfiltration membranes must be at least 0.10 micrometers (microns) but not more than 0.4 microns.(D) The nominal pore size used in an MBR for ultrafiltration must be at least 0.02 microns but not more than 0.10 microns.(E) Any chemical used for cleaning must not adversely affect the membrane material.(7) Membrane Design Parameters.(A) MBRs must be designed for: (i) an average daily net flux rate equal to or less than 15 gallons per day per square-foot of membrane area; (ii) a peak daily net flux rate equal to or less than 1.25 times the average daily net flux rate; and (iii) a two-hour peak net flux rate equal to or less than 1.5 times the average daily net flux rate.(B) The executive director may approve larger net flux rates if the rates are substantiated to the executive director's satisfaction with a pilot study or data from a similar wastewater treatment facility.(C) An MBR system with a peak flow rate that is greater than 2.5 times the average daily flow must use an equalization basin, off-line storage, or reserve membrane capacity to accommodate the higher peak flow.(D) Hollow Fiber Transmembrane Pressure (TMP).(i) The operational TMP of a hollow fiber MBR system must be at least 2.0 pounds per square inch (psi) but not more than 10.0 psi.(ii) The TMP of a hollow fiber MBR system must not exceed 12.0 psi.(E) Flat Plate TMP.(i) The operational TMP of a flat plate MBR system must be at least 0.3 psi but not more than 3.0 psi.(ii) The TMP of a flat plate MBR system must never exceed 4.5 psi.(F) Tubular, Out of Basin TMP.(i) The operational TMP of a tubular, out of basin MBR system must be at least 0.5 psi but not more than 5.0 psi.(ii) The TMP of a tubular, out of basin MBR system must never exceed 10.0 psi.(8) Supporting Data. An owner must provide pilot study reports or data from a similar wastewater treatment facility for a wastewater treatment facility that is either:(A) required to meet stricter standards than in Table F.7. in Figure: 30 TAC §217.157(c)(1); or (B) designed to operate outside normal operating parameters defined within this section.(i) A pilot study must be conducted for at least 30 days after the initial start-up and acclimation period.(ii) A pilot study must be designed to evaluate the membrane performance under actual operational conditions, including flow variations and influent wastewater characteristics.(iii) The treatment and pretreatment processes evaluated in a pilot study or similar wastewater treatment facility must be equivalent to the processes that will be used in the wastewater treatment facility.(iv) The results of the pilot study must include the following recommendations: (I) net flux rates for design flow and peak flow; (II) average and maximum transmembrane pressure; (III) cleaning and backwash intervals; (IV) expected percent chemical recovery after chemical cleaning; (V) dissolved oxygen concentrations for reactors and membrane basins; (VI) MLSS concentrations for reactors and membrane basins; (VII) SRTs for reactors and membrane basins; and (VIII) expected effluent concentrations of conventional pollutants and nutrients, including the pollutants and nutrients that will be limited or monitored in the wastewater treatment facility's wastewater permit.(9) Redundancy.(A) A wastewater treatment facility must be able to operate at normal operating parameters and conditions for design flow with the largest MBR unit or train out of service.(B) Acceptable methods of providing redundancy are additional treatment trains, additional treatment units, or storage. The engineering report must include calculations that demonstrate adequate redundancy within the wastewater treatment facility.(10) Other Components.(A) Mixers.(i) Unaerated (deoxygenation, pre/post anoxic, and anaerobic) zones must have a submersible mixing system, or an alternative mixing system that has been approved in writing by the executive director. (ii) Coarse bubble air diffusers may be used for mixing in a pre-anoxic tank.(B) Scum and Foam Handling. An MBR must control scum and foam so that scum or foam does not interfere with treatment, and must prevent unauthorized discharge of scum or foam from a treatment unit.(C) Cranes and Hoists. A crane, hoist, or other process or mechanism approved in writing by the executive director must be provided for periodic cleaning and maintenance of the membranes.(11) Disinfection.(A) An owner may request and the executive director may approve, in writing, decreased ultraviolet light or chlorine dosing requirements for MBR effluent.(B) the design for ultraviolet light disinfection for MBR effluent that is based on greater than 75% transmissivity must be justified in the engineering report.(e) MBR operation.(1) Membrane cleaning. The following methods may be used to clean membranes: (A) air scouring of at least 0.01 standard cubic feet per minute of air per square foot of membrane area, but not more than 0.04 standard cubic feet per minute of air per square foot of membrane area; (B) a mixture of air scouring as described in subparagraph (A) of this paragraph and mixed liquor jet feed; (C) back-flushing; (D) relaxation; or (E) chemical cleaning.(2) Operational Control Parameters.(A) In-line continuous turbidity monitoring of filtrate from each membrane train or cassette must be provided for operational control and indirect membrane integrity monitoring. An alarm must be provided to notify the wastewater treatment facility operator of turbidity greater than or equal to 1.0 nephelometric turbidity units (NTU).(B) An owner must follow the manufacturer's recommended frequency for MBR component inspection, testing, and maintenance. The manufacturer's recommended inspection, testing, and maintenance procedures and frequencies must be included in the wastewater treatment facility's operation and maintenance manual.(C) An owner must provide a wastewater treatment facility operator access to any specialized tool necessary for the operation or maintenance of an MBR system. A description of all specialized tools and instructions for their use must be included in the operation and maintenance manual for the wastewater treatment facility.(3) Control instrumentation. A wastewater treatment facility must have the ability to operate in full manual mode.(f) Chemical Use and Disposal.(1) The chemicals used in treatment and maintenance must not harm the MBR system or interfere with treatment.(2) The chemicals used in treatment and maintenance, including concentrations of the chemicals and chemical disposal methods, must be identified in the engineering report.(g) Training.(1) The individuals trained to operate an MBR system must be familiar with the sequencing and set points of all operations and actions typically controlled by automated systems and be able to identify and respond to irregularities.(2) The operation and maintenance manual must include instructions on how to operate the MBR in manual mode.(h) Warranty and Bonds.(1) All membranes must have a warranty of at least five years.(2) The executive director may require a performance bond that meets the requirements of §217.7(b)(2)(E) of this title.</content><note type="source"><p>Source Note: The provisions of this §217.157 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scF/s217.158"><num value="217.158">§217.158</num><heading>Solids Management</heading><content>(a) Solids Recycling and Monitoring.(1) A return sludge system must operate as designed in all flow conditions.(2) A monitoring and control system must provide a means to control return and waste sludge flows from each clarifier, to control return sludge flows into each aeration basin, to meter return sludge flows, and to measure waste sludge flows.(b) Solids Wasting. The solids management system must be able to store and process the waste activated sludge under all flow conditions.(c) Return Activated Sludge (RAS) Pump Design.(1) A centrifugal sludge pump must have a positive suction head, unless the pump is self-priming.(2) An airlift pump must comply with requirements of §217.162 of this title (relating to Air Lift Pump Design).(3) An RAS system must have sufficient pumping units to maintain the maximum design return pumping rate with the largest single pumping unit out of service.(d) Waste Activated Sludge Pump Design. A waste activated sludge pumping system requires at least two pumping units and must be sized to prevent excessive solids accumulation in the clarifiers.(e) Sludge Piping System.(1) The design of a sludge piping system must accommodate cleaning and flushing.(2) The design of a sludge piping system must accommodate a minimum velocity of 2.0 feet per second at the maximum wasting rate to prevent solids from settling. The velocity in a sludge piping system must prevent scouring.(3) A sludge pipe must have a minimum diameter of 4.0 inches.</content><note type="source"><p>Source Note: The provisions of this §217.158 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scF/s217.159"><num value="217.159">§217.159</num><heading>Process Control</heading><content>(a) Solids Retention Time Control.(1) A wastewater treatment facility design must include equipment for a wastewater treatment facility operator to control the solids retention time (SRT) in the aeration tanks by wasting a measured volume of surplus activated sludge.(2) The engineering report and the operation and maintenance manual must provide the formulas used for determining the SRT.(3) The SRT required for nitrification applies to the aerobic portion of the wastewater treatment facility.(b) Aeration System Control. Aeration system control must regulate the total amount of air supplied and how air is distributed to the aeration tanks.(1) In order to conserve energy, a wastewater treatment facility design may provide the operator with the ability to adjust the airflow in proportion to the oxygen demand of the wastewater.(2) If an adjustable type of airflow control is installed, the aeration equipment must be manually adjustable over the entire range of oxygen demands and must maintain solids in suspension.(c) A wastewater treatment facility with a design flow greater than 0.4 million gallons per day must provide for totalized flow measurement of the return sludge and waste sludge discharges for process control.</content><note type="source"><p>Source Note: The provisions of this §217.159 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scF/s217.160"><num value="217.160">§217.160</num><heading>Operability and Maintenance Requirements</heading><content>(a) All equipment must either be able to operate at the temperature extremes of the wastewater treatment facility location, or must be located in a temperature controlled enclosure.(b) All equipment must be accessible for inspection, maintenance, and operation.(c) An enclosure that houses equipment must have sufficient clearance and working room to safely remove and reinstall equipment. The enclosure must be accessible to portable lifting devices or must be equipped with overhead lifting eyes, hoists, trolleys, or cranes to facilitate the safe removal of equipment.</content><note type="source"><p>Source Note: The provisions of this §217.160 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scF/s217.161"><num value="217.161">§217.161</num><heading>Electrical and Instrumentation Systems</heading><content>(a) All three-phase motors must have phase failure protection.(b) Instrumentation and monitoring equipment must have power surge protection.(c) A wastewater treatment facility must conduct fault monitoring to notify the operator of high wet well level, power interruption, disinfection failure, blower failure, clarifier failure, return sludge pumping failure, and any other conditions that the executive director may require an owner to monitor as a condition for project approval.(d) For a wastewater treatment facility not staffed 24 hours per day, a telemetry with battery back-up or supervisory control and data acquisition system with battery backup must be able to notify an operator of a malfunction identified in subsection (c) of this section within one minute of the malfunction.</content><note type="source"><p>Source Note: The provisions of this §217.161 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scF/s217.162"><num value="217.162">§217.162</num><heading>Air Lift Pump Design</heading><content>(a) Required Calculations.(1) The engineering report must include calculations to determine static and dynamic pressure head necessary for operation of each air lift pump. Static and dynamic pressure head requirements for the suction line must be considered in the calculations.(2) Air lift pump systems must be designed to meet the range of required flow rates.(3) The engineering report must include the number of air lift pumps required and the minimum and maximum:(A) design airflow rate for each air lift pump;(B) design flow rate for each air lift pump; and(C) design flow rate for the system.(b) Design.(1) Air lift pumps may not be used to pump sludge from a primary clarifier.(2) Air lift pumps must be at least three inches in diameter.(3) The design air flow rates must be based on the actual submergence of an air lift pump.(4) Blowers for an air lift pump system must be sized to provide the maximum design airflow rate required by the system.(5) The discharge end of an air lift pump must prevent splashing.(6) Air lift pumps located inside of a basin must allow for cleaning without removal from the basin.(7) An air lift pump must provide a way to release trapped air.(8) Air lift pump systems for return activated sludge, waste activated sludge, internal recycle, and other systems that affect overall process performance must have a minimum dynamic submergence of 60%.(9) Air lift pump systems for scum removal, grit removal, or for transfers that do not affect overall process performance must have a minimum dynamic submergence of 50%.(10) Air lift pump systems for return activated sludge, waste activated sludge, internal recycle, and other systems that affect overall process performance must provide a method for flow measurement using:(A) an external box with a weir; or(B) a rotameter, or other flow measurement device approved in writing by the executive director on the air line to each pump. When flow is measured on the air line, the engineering report must include a graph correlating the air flow rate in the air line to the liquid flow rate of the air lift pump.(c) Redundancy.(1) A backup pump or other means of transfer must be provided for each air lift pump system.(2) Air lift systems for return activated sludge, waste activated sludge, and internal recycle must be able to operate at full capacity with the largest pumping unit out of service.</content><note type="source"><p>Source Note: The provisions of this §217.162 adopted to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scF/s217.163"><num value="217.163">§217.163</num><heading>Advanced Nutrient Removal</heading><content>(a) For a wastewater treatment facility designed to provide advanced nutrient removal, the engineering report must specify the process units needed to achieve the effluent limits established in the wastewater treatment facility's wastewater permit.(b) Biological nutrient removal using an activated sludge process, membrane filtration, sand filtration, or a combination of these processes may be used for advanced nutrient removal without applying for the executive director's approval under the innovative or non-conforming technology criteria in §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals). A biological nutrient removal process that involves fixed-film treatment is subject to the executive director's determination under §217.7(b)(2) of this title.(c) If a biological nutrient removal unit is proposed, the engineering report must include the:(1) anticipated food to microorganism ratio in both the anoxic and anaerobic zones;(2) volatile fatty acid recycle ratio; and(3) design of a foaming control system.(d) If a chemical addition unit is proposed, it must comply with the chemical containment requirements in Subchapter K of this chapter (relating to Chemical Disinfection). Chemical addition may only be used if approved in writing by the executive director.</content><note type="source"><p>Source Note: The provisions of this §217.163 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scF/s217.164"><num value="217.164">§217.164</num><heading>Aeration Basin and Clarifier Sizing--Volume-Flux Design Method</heading><content>(a) A volume-flux design must size an aeration basin and clarifier on the relationship between the volume-flux of solids in the secondary clarifier, the sludge volume index (SVI), and the sludge blanket depth. The following design approach may be used as an alternative to the traditional design approach. If the volume-flux design approach is used, it must be used consistently throughout the design. No other design method may be used in combination with the volume-flux design method.(1) A design may base the aeration tank volume and the clarifier volume on a mixed liquor suspended solids (MLSS) and floc volume (at SVI of 100) for the required minimum solids retention time.(2) Larger values of MLSS require less aeration tank volume and greater clarifier volume.(3) By examining a range of values of the MLSS and the floc volume, the most favorable arrangement for a wastewater treatment facility may be selected.(4) When using the volume-flux design method, the size of an aeration basin and a clarifier must be in accordance with the requirements of this section.(b) Design approach.(1) Determine the solids retention time (SRT) needed to meet the permit requirement for five-day biochemical oxygen demand (BOD5 ) and ammonia-nitrogen (NH3 -N) effluent limitations.(2) Select a trial value mixed liquor floc volume (for example, MLSS at an SVI of 100).(3) Using the design organic loading rate, the required SRT and yield, and the trial MLSS, determine the aeration tank volume.(4) Using the trial value of mixed liquor flow volume, determine the clarifier area.(5) For clarifiers overloaded in thickening at the peak flow, determine the final MLSS during storm flow and the resulting sludge blanket depth.(6) Observing effluent limitations, determine the side water depth (SWD) and volume of the clarifier.(7) Repeat the steps in paragraphs (2) - (6) of this subsection at different mixed liquor floc volumes and select the most favorable conditions for the wastewater treatment facility design.(c) Aeration Basin Sizing.(1) For a wastewater treatment facility that does not require nitrification, the minimum SRT is as follows: (A) for a wastewater treatment facility with an effluent BOD5 monthly average limitation of 20 milligrams per liter (mg/l), the minimum SRT is three days; (B) for an extended aeration wastewater treatment facility with an effluent BOD5 monthly average limitation of 20 mg/l, the minimum SRT is 22 days; (C) for a wastewater treatment facility with an effluent BOD5 monthly average limitation less than 20 mg/l, the minimum SRT is 4.5 days; and (D) for an extended aeration wastewater treatment facility with an effluent BOD5 monthly average limitation of less than 20 mg/l, the minimum SRT is 25 days.(2) For a wastewater treatment facility that requires nitrification, the minimum SRT is based on the winter reactor temperature as set forth in §217.154(b) of this title (relating to Aeration Basin and Clarifier Sizing--Traditional Design) and the values of SRT and net solids production (Y), as listed in Table F.8. in Figure: 30 TAC §217.164(c)(3). The maximum BOD5 loading limitation for a single-step aeration process is 50 pounds (lb) BOD5 per 1,000 cubic feet (cf) and for the first step of multi-step aeration process facilities is 100 lb BOD5 /1,000 cf.(3) An above-ground steel or fiberglass tank requires 2 degrees Celsius lower minimum operating temperature than a wastewater treatment facility utilizing a reinforced concrete tank. A wastewater treatment facility must be designed for an MLSS concentration of at least 2,000 mg/l but no more than 5,000 mg/l. The net solids production, (Y), in the following table includes both coefficients for yield and endogenous respiration:Attached Graphic(4) To calculate the SRT, divide the safety factor by the maximum growth rate as shown in the following equation. The safety factor includes the design factor for the ratio of average to maximum diurnal ammonia loading. A value of 3.0, as recommended in the United States Environmental Protection Agency manual Nitrogen Control, is used in calculating the values in Table F.8. in Figure: 30 TAC §217.164(c)(3).Attached Graphic(5) To determine the aeration basin volume, select a trial value of MLSS. The aeration basin volume is calculated as the maximum value from the following equations:Attached Graphic(d) Clarifier Sizing.(1) A clarifier basin size is based on volume-flux from the floc volume of solids entering the clarifier.(2) Biological solids may occupy different volumes for the same mass of solids as indicated by the SVI.(3) For purposes of determining weir overflow rates for clarifier sizing, the design flow and the peak flow must include any return flows from units downstream of the clarifier, including flow from skimmers, thickeners, and filter backwash.(4) A clarifier must be sized to prevent overloading under any design condition.(5) The settling velocity of the mixed liquor solids must equal or exceed the two-hour peak weir overflow rate.(6) A clarifier must be sized to prevent overloading in the thickening process at the design flow.(7) The wastewater treatment facility's operation and maintenance manual must state the design maximum mixed liquor floc volume.(e) Determine Weir Overflow Rate and Area. The values in Table F.9 in Figure 1: 30 TAC §217.164(e)(2)(I) determine the maximum surface loading rates. The MLSS concentration must include the same concentration used for sizing the aeration basin. The design must be based on the underflow rate. The design must include calculations for maximum weir overflow rate for the clarifier at the peak flow (Table F.9. in Figure 1: 30 TAC §217.164(e)(2)(I)), the aeration basin MLSS concentration, and a selected underflow rate. The area of the clarifier is determined by the following equation:Attached Graphic(1) Determine Volume of a Clarifier. The volume of a clarifier must exceed the values determined from the minimum side wall depth (SWD) in Equation F.9. in Figure: 30 TAC §217.164(e)(1) or the minimum detention time in Equation F.10. in Figure: 30 TAC §217.164(e)(1): Attached Graphic(2) Dimensions for Clarifiers Designed for Solids Storage Capabilities. The design of a clarifier that may be overloaded in thickening at the design flow must include the ability to store solids during peak flow events. The design must be based on the values in Table F.9. in Figure 1: 30 TAC §217.164(e)(2)(I), Table F.10. in Figure 2: 30 TAC §217.164(e)(2)(I), and Table F.11. in Figure 3: 30 TAC §217.164(e)(2)(I). The process for designing a clarifier based on this concept must be completed as follows: (A) Determine the area of a clarifier. The area calculations must be based on the trial MLSS value selected for the sizing of the aeration basin in paragraph (1) of this subsection. The area of a clarifier must exceed the greater of the areas determined by Equation F.11. or Equation F.12. in Figure: 30 TAC §217.164(e)(2)(A):Attached Graphic(B) The final MLSS value must be the result of the transfer of solids from an aeration tank to a clarifier at the peak flow. A clarifier design must allow for rates of flow that will transfer solids from an aeration tank to a clarifier if the clarifier becomes overloaded in thickening until the mixed liquor solids are reduced to the concentration that no longer causes the overload.(C) Using Table F.11. in Figure 3: 30 TAC §217.164(e)(2)(I) and the selected underflow rate, the MLSS concentration at peak flow is determined using the following equation:Attached Graphic(D) Determine depth of sludge blanket at peak flow. The depth of a sludge blanket is determined by the aeration basin volume, the change in MLSS, the area of the clarifier, and the concentration of the blanket solids at the selected underflow rate as shown in the following equation:Attached Graphic(E) Determine the SWD. The SWD of a clarifier is the maximum value resulting from the following conditions: (i) 10 ft, unless a lower depth is allowed by §217.152(g) of this title (relating to Requirements for Clarifiers); (ii) 3.0 times the sludge blanket depth; and (iii) minimum detention time per the following equation:Attached Graphic(F) Determine clarifier volume. The volume of a clarifier is the surface area multiplied by the SWD determined in subparagraph (E) of this paragraph.Attached Graphic(G) The formulas for Equation F.17. in Figure: 30 TAC §217.164(e)(2)(G)(i); Equation F.18. in Figure: 30 TAC §217.164(e)(2)(G)(ii); and Table F.10. in Figure 2: 30 TAC §217.164(e)(2)(I); calculate the rates that are equal to the settling velocity of activated sludge at various floc volume concentrations. For values less than 30%, the floc volume is the 30-minute settled volume in an unstirred one-liter graduated cylinder. For values greater than 30%, the sample is diluted so that the settled volume is at least 15% but not more than 30%, and the result multiplied by the dilution factor.(i) For floc volume less than 40%, use the following equation; orAttached Graphic(ii) For floc volume greater than 40%, use the following equation:Attached Graphic(H) Table F.9. in Figure 1: 30 TAC §217.164(e)(2)(I) and Table F.11. in Figure 3: 30 TAC §217.164(e)(2)(I) are based on an analysis of the floc volume-flux, i.e. floc volume times settling velocity, calculated from Equation F.17. in Figure: 30 TAC §217.164(e)(2)(G)(i) and Equation F.18. in Figure: 30 TAC §217.164(e)(2)(G)(ii). Table F.11. in Figure 3: 30 TAC §217.164(e)(2)(I) is a tabulation of the maximum concentration of the underflow at different underflow rates. Equation F.19. is for Table F.11. in Figure 3: 30 TAC §217.164(e)(2)(I). Attached Graphic(I) Table F.9. in Figure 1: 30 TAC §217.164(e)(2)(I) determines the weir overflow rate that, along with the underflow rate and MLSS, determines the same floc volume-flux as shown in Table F.11. in Figure 3: 30 TAC §217.164(e)(2)(I).Attached GraphicAttached GraphicAttached Graphic</content><note type="source"><p>Source Note: The provisions of this §217.164 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c217/scG"><num value="G">SUBCHAPTER G</num><heading>FIXED FILM AND FILTRATION UNITS</heading><section identifier="/us/state/tx/tac/t30/p1/c217/scG/s217.181"><num value="217.181">§217.181</num><heading>Applicability</heading><content>This subchapter establishes the requirements for trickling filters, rotating biological contactors, submerged biological contactors, and filtration systems.</content><note type="source"><p>Source Note: The provisions of this §217.181 adopted to be effective August 28, 2008, 33 TexReg 6843.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scG/s217.182"><num value="217.182">§217.182</num><heading>Trickling Filters--General Requirements</heading><content>(a) Trickling filters are classified according to applied hydraulic loading, including recirculation, in million gallons per day per acre of filter media surface area and influent organic loadings in pounds of five-day biochemical oxygen demand (BOD5 ) per day per 1,000 cubic feet of filter media. The following factors must be used as the basis for the selection of the design hydraulic and influent organic loadings: (1) BOD5 concentration of the influent wastewater; (2) effectiveness of pretreatment; (3) type of filter media; and (4) treatment efficiency required.(b) A trickling filter may be classified as: (1) a roughing filter, which provides at least 50%, but not more than 75% removal of soluble BOD5 ; (2) a secondary treatment filter, which provides the removal of pollutants required to meet the effluent limits for BOD5 and total suspended solids (TSS) of effluent set 1 or 2 in §309.4 of this title (relating to Table 1, Effluent Limitations for Domestic Wastewater Plants); (3) a combined BOD5 and nitrifying filter, which provides the removal of pollutants required to meet the effluent limits for BOD5 , ammonia-nitrogen (NH3 -N), and TSS of effluent set 2N or 2N1 in §309.4 of this title; or (4) a tertiary nitrifying filter, which provides removal of NH3 -N, if the influent to the trickling filter is a clarified secondary effluent.(c) The following table lists the hydraulic and organic loadings for different classes of trickling filters.Attached Graphic(d) Pretreatment.(1) A trickling filter must have upstream preliminary treatment units that: (A) remove grit, debris, suspended solids, oil, and grease; (B) remove particles with a diameter greater than three millimeters; and (C) control the release of hydrogen sulfide.(2) A primary clarifier equipped with scum and grease removal devices must precede a rock media trickling filter.(e) Rock Filter Media.(1) Materials.(A) Rock filter media composed of crushed rock, slag, or similar material is prohibited if more than 5% of the media, by weight, consists of pieces with their longest dimension measuring more than three times greater than their shortest dimension.(B) Rock filter media must conform to the following size distribution and grading. Mechanical grading over a vibrating screen with square openings must meet the following: (i) passing 5.0 inch sieve - 100% by weight; (ii) retained on 3.0 inch sieve - 95 to 100% by weight; (iii) passing 2.0 inch sieve - 0.2% by weight; (iv) passing 1.0 inch sieve - 0.1% by weight; and (v) the loss of weight by the 20-cycle test, as described in American Society of Civil Engineers' Manual of Engineering and Engineering Practice No. 13, must be less than 10%.(2) Placement.(A) Rock filter media must be at least 4.0 feet deep at the shallowest point.(B) Dumping rock filter media directly on a trickling filter is prohibited. Rock media must be placed by hand to a depth of 12 inches above the underdrains. The remainder of the rock filter media may be placed by belt conveyor or an equivalent mechanical method.(C) Crushed rock, slag, and other similar media must be washed and screened or forked to remove clay, organic material, and other fine particles prior to placement.(D) The placement of any material must not damage the underdrains.(E) Vehicles and equipment are prohibited from driving over the rock filter media.(f) Synthetic (Manufactured or Prefabricated) Media Materials.(1) Any synthetic media material must be used in accordance with all of the manufacturer's recommendations.(2) Synthetic media material may be considered innovative or non-conforming technology and may be subject to §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals), and requires executive director approval in writing.(A) Suitability. The suitability of synthetic media material must be evaluated based on performance data from a wastewater treatment facility with similar media operating under similar hydraulic and organic loading conditions. The engineering report must include a relevant case history involving the use of the synthetic media.(B) Durability. A synthetic media must be insoluble in wastewater and resistant to flaking, spalling, ultraviolet degradation, disintegration, erosion, aging, common acids and alkalis, organic compounds, and biological attack.(C) Structural Integrity.(i) The structural design of synthetic filter media must support the synthetic media, water flowing through or trapped in voids, and the maximum anticipated thickness of the wetted biofilm.(ii) The synthetic filter media must support the weight of an individual, unless a separate provision is made for maintenance access to the entire top of the trickling filter media and to the distributor.(D) Placing of Synthetic Filter Media. Modular synthetic filter media must be installed with the edges of the modules matched as closely as possible to provide consistent hydraulic conditions within the trickling filter.(g) Trickling Filter Dosing.(1) Dosing rates to a trickling filter must be within the design dosing rate range, even if the trickling filter receives flow from a siphon, pump, or gravity discharge from a preceding treatment unit.(2) A trickling filter must be designed to control instantaneous dosing rates under both normal operating conditions and filter-flushing conditions.(3) The distributor speed and the recirculation rate of a trickling filter must be adjusted for the dosing intensity as a compensatory measure under low-flow conditions. The following table provides design ranges of dosing intensity for both normal usage periods and for flushing periods:Attached Graphic(4) A design may be based on instantaneous dosing intensity for rotary distributors using Equation G.1. in Figure: 30 TAC §217.182(g)(4). Attached Graphic(h) Distribution Equipment.(1) The design of a trickling filter must include a rotary, horizontal, or traveling wastewater distribution system that distributes wastewater uniformly over the entire surface of a filter at the design and flushing dosing intensities.(2) A design must include filter distributors that operate properly at all anticipated flow rates.(3) A design must not deviate from the design dosing intensity by more than 10%.(4) A new trickling filter or an upgrade of an existing trickling filter must include an electrically driven, variable speed filter distributor to allow operation at optimum dosing intensity independent of recirculation pumping.(5) If an existing rectangular trickling filter is retrofitted with rotary distributors, any filter media that will not be fully wetted must not be considered part of the required effective treatment area.(6) The center column of a rotary trickling filter distributor must have emergency overflow ports that are sized to prevent water from reaching the bearings in the center column.(7) A filter distributor must include cleanout gates on the ends of the distributor arms and an end spray nozzle to wet the edges of the trickling filter media.(8) The trickling filter walls must extend at least 12.0 inches above the top of the ends of the distributor arms.(9) The use of a mercury seal in a distributor of a trickling filter is prohibited in a new wastewater treatment facility. If an existing wastewater treatment facility is materially altered, any mercury seal in a trickling filter must be replaced with an oil or mechanical seal.(10) The minimum clearance between the top of the trickling filter media and the distributing nozzles is 6.0 inches.(11) Rotary distributors must be capable of operating at speeds as low as one revolution per 30 minutes.(12) A trickling filter with a height or diameter that does not allow distributors to be removed and replaced by a crane must provide jacking columns and pads at the distributor column.(i) Recirculation.(1) Low Flow Conditions.(A) The design of a trickling filter must include a mechanism to maintain minimum recirculation during periods of low flow to ensure that the biological growth on the filter media remains active at all times.(B) For all trickling filters with continuous recirculation, the design must include the minimum recirculation rate in the evaluation of the efficiency of the filter.(C) Minimum flow to the filters must be equal to or greater than 1.0 million gallons per day per acre of filter aerial surface and must ensure the proper operation of the distribution nozzles. (D) The minimum flow rate for a trickling filter design using hydraulically driven distributors must keep rotary distributors turning at the minimum design rotational velocity.(E) For a wastewater treatment facility designed with a design flow equal to or greater than 0.4 million gallons per day and recirculation for BOD5 removal, the recirculation system must include variable speed pumps and a method of conveniently measuring the recycle flow rate.(2) Compensatory Recirculation.(A) The design of a trickling filter must provide compensatory recirculation to supplement influent flow if design and flushing dosing intensities are not achieved solely by the control of distributor operation.(B) Controls for the distributor speed and recycle pumping rate must provide optimum dosing intensity under all anticipated influent flow conditions.(3) Process Calculations. The engineering report must: (A) provide design details about removal of the remaining organic matter by recirculation; (B) identify the effect of dilution of the influent on the rate of diffusion of dissolved organic substrates into the biofilm; and (C) identify the effect of reduced influent concentrations on reaction rates in each section of a filter having first order kinetics. (4) Recirculation Rate. A recirculation rate may exceed four times the design flow if calculations to justify the higher rate are included in the engineering report.(5) Configuration.(A) In a wastewater treatment facility with influent that has constant organic loadings, direct recirculation of unsettled trickling filter effluent must be used.(B) A design must ensure that the distributor nozzles can handle the recirculated sloughed biofilm.(C) In a wastewater treatment facility with variable influent organic loadings, effluent must recirculate from a final clarifier to either a primary clarifier or a trickling filter to equalize organic loading.(j) Average Hydraulic Surface Loading.(1) The engineering report must include calculations of the maximum, design, and minimum surface loadings on the trickling filters in terms of million gallons per acre of filter area per day for the flow expected in the initial year and at full capacity.(2) The average hydraulic surface loadings of a trickling filter with crushed rock, slag, or similar media: (A) must not exceed 40 million gallons per day per acre based on design flow, except in roughing applications; (B) must not be less than 1.0 million gallons per day per acre; and (C) must be within the ranges specified by the manufacturer. (k) Underdrain System Design.(1) A trickling filter must include an underdrain with semicircular inverts that cover the entire floor of the trickling filter.(2) An underdrain must be constructed of vitrified clay or pre-cast reinforced concrete.(3) An underdrain constructed of half tile is prohibited.(4) Underdrain inlet openings must have a gross cross-sectional area greater than 15% of a trickling filter's surface area.(5) A modular synthetic media design must be supported above a trickling filter floor by beams and grating with support and clearances in accordance with the trickling filter media manufacturer's recommendations. The manufacturer's recommendations must be included in the engineering report.(l) Underdrain Slopes.(1) An underdrain and trickling filter effluent channel floor must have a minimum slope of 1%.(2) An effluent channel must produce a minimum velocity of 2.0 feet per second at the design flow rate to a trickling filter.(3) The floor of a new trickling filter using stackable modular or synthetic media must slope toward a drainage channel at a slope of at least 1% and not more than 5%, based on filter size and hydraulic loading.(m) Passive Ventilation.(1) The effluent channels and effluent pipes of an underdrain system or a synthetic media support structure must permit free passage of air.(2) Any drain, channel, or effluent pipe must have a cross-sectional area with not more than 50% of the area submerged at peak flow plus recirculation.(3) The effluent channels must accommodate the specified flushing hydraulic dosing intensity and allow the possibility of increased hydraulic loading.(4) A passive ventilation system may include an extension of an underdrain through a trickling filter sidewall, a ventilation opening through a sidewall, or an effluent discharge conduit designed as a partially full flow pipe or an open channel.(5) A vent opening through a trickling filter wall must include hydraulic closure to allow flooding of a trickling filter for nuisance organism control.(6) A passive ventilation design must provide at least 2.5 square feet of ventilating area per 1,000 pounds of primary effluent BOD5 per day.(7) An underdrain system for a rock media filter must provide at least 1.0 square foot of ventilating area for every 250 square feet of the trickling filter basin surface area.(8) The minimum required ventilating area for a synthetic media underdrain is the area recommended by the manufacturer. The manufacturer's recommendations must be included in the engineering report.(9) The ventilating area must be equal to the greater of 1.0 square foot per 175 square feet of synthetic media area or 2.6 square feet per 1,000 cubic feet of media volume.(n) Forced Ventilation.(1) Forced ventilation is required for a trickling filter designed for:(A) nitrification;(B) a trickling filter design with a media depth in excess of 6.0 feet; and(C) a location where seasonal or diurnal temperatures do not provide sufficient difference between the ambient air and wastewater temperatures to sustain passive ventilation of one cubic foot of air per square foot of trickling filter area per minute.(2) A design must specify the minimum airflow for forced ventilation and optimized process performance, and the engineering report must include all calculations associated with this determination.(3) The design of a down-flow forced ventilation system must include a provision for: (A) the removal of entrained droplets; or (B) the return of air containing entrained moisture to the top of a trickling filter; and (C) a reversible fan or other mechanism to reverse the airflow when a wide temperature difference between the ambient air and wastewater creates strong updrafts.(4) A ventilation fan and the associated controls must withstand flooding of a trickling filter without sustaining damage.(5) The following equation and the values in Table G.3. in Figure: 30 TAC §217.182(n)(5) determine the minimum airflow rate for forced ventilation.Attached Graphic(o) Maintenance.(1) Cleaning and Sloughing.(A) A flow distribution device, an underdrain, a channel, and a pipe must allow for maintenance, flushing, and drainage.(B) A trickling filter system must hydraulically accommodate the specified flushing hydraulic dosing intensity and must facilitate cleaning and rodding of the distributor arms.(C) A trickling filter system must prevent recirculation of sloughed biomass in pieces larger than the distributor nozzle openings or the filter media voids.(2) Nuisance Organism Control. A trickling filter system must control nuisance organisms by operation of trickling filters at proper design dosing intensities, with periodic flushing at higher dosing intensities.(A) Filter Flies.(i) The structural and hydraulic design of a trickling filter must enable flooding of the trickling filter for fly control.(ii) The executive director may approve an alternate method of fly control for a trickling filter that exceeds 6.0 feet in height if the effectiveness of the alternate method is verified at a full-scale installation and documented in the engineering report.(B) Snails. A trickling filter system must be designed to prevent sludge accumulation that attracts snails. A trickling filter system must include a low-velocity, open channel between a trickling filter and final clarifier for manual removal of snails.(3) Corrosion Protection. A trickling filter must be designed to prevent corrosion. Corrosion-resistant materials must be used for all equipment and for construction of a trickling filter, including ventilation equipment and covers.(p) Flow Measurements. A trickling filter system must include a means to measure the flow to each trickling filter and the recirculation flow of each trickling filter.(q) Odor Control. A trickling filter system must use ventilation and periodic flushing at a higher dosing intensity to minimize potential odor.(1) Covers.(A) The executive director may require an owner of a wastewater treatment facility with prior odor complaints to install a cover over a new or altered trickling filter.(B) A cover must allow access to the entire top of the trickling filter media and to the distributor for maintenance and removal.(C) A covered trickling filter must have a forced ventilation system with a scrubber or an adsorption column for odor control.(2) Stripping. A trickling filter with an influent organic strength of BOD5 greater than 200 milligrams per liter must have forced ventilation in a down-flow mode to minimize odor. Odorous off-gases may be: (A) recycled through a trickling filter; (B) used to ventilate a tertiary nitrifying trickling filter in an up-flow mode; (C) diffused into an aeration basin; or (D) treated separately for odor control using a scrubber or an adsorption column.(r) Final Clarifiers. The size of the final clarifiers for a wastewater treatment facility with a trickling filter must ensure the required effluent total suspended solids removal at the peak flow with all recirculation pumps in operation.(s) Report Requirements.(1) The engineering report must specify the trickling filter efficiency formula used in the design calculations.(2) The engineering report must include the operating data from any existing trickling filter of similar construction and operation to justify the projected treatment efficiency, kinetic coefficients, and other design parameters as required in this subchapter.(3) The engineering report may include more than one set of applicable design equations to allow crosschecking of predicted treatment efficiency.</content><note type="source"><p>Source Note: The provisions of this §217.182 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scG/s217.183"><num value="217.183">§217.183</num><heading>Nitrifying Trickling Filters--Additional Requirements</heading><content>(a) Ventilation. A nitrifying trickling filter must include forced ventilation to distribute airflow throughout the underdrain area. The minimum design airflow rate must be the greater of: (1) 50 pounds of oxygen provided per pound of oxygen required at average organic loading, based on stoichiometry; or (2) 30 pounds of oxygen provided per pound of oxygen required at peak organic loading, based on stoichiometry.(b) Temperature. The engineering report must justify the temperature used in the design equations. A design may include deep towers or other means to minimize recirculation while providing a design hydraulic dosing intensity that lessens the effects of temperature on removal efficiency.(c) pH. The engineering report must document that the design recirculation rates are appropriate for dealing with the effects of pH.(d) Predation. A nitrifying trickling filter must include a means for control of biomass predators, such as snails.(e) Hydraulic Application Rates. A nitrifying trickling filter must operate at a design dosing intensity of at least 1.47 gallons per minute per square foot and provide operational control of dosing intensity.(f) Media. Cross-flow synthetic media is required for a new tertiary nitrification filter or for the nitrifying section of a new combined nitrification filter.(g) Tertiary Nitrification Filters. A trickling filter treating influent that has a five-day biochemical oxygen demand (BOD5 ) to total Kjeldahl nitrogen (TKN) ratio of equal to or greater than 1.0 and soluble BOD5 of less than or equal to 12 milligrams per liter (mg/l) is a tertiary nitrification filter.(1) Design Justification. The engineering report must include process design calculations and selection criteria of kinetic coefficients for a tertiary nitrification trickling filter. The design calculations and selection criteria must be justified by operating data from an existing trickling filter of similar construction and operation.(2) Media biotowers. A tertiary nitrification trickling filter design must minimize pH depression due to recirculation. A tertiary nitrification trickling filter must use either: (A) a single tower at least 20 feet tall; or (B) a series of towers less than 20 feet tall. The design must include provisions to readily switch the operating sequence of the trickling filters if multiple towers are operated in series.(h) Combined BOD5 and Nitrification Filters. A trickling filter intended to perform nitrification and treating influent having a BOD5 to TKN ratio of less than 1.0 or soluble BOD5 of less than 12 mg/l is a combined BOD5 and nitrification filter.(1) Design Justification. The engineering report must justify the projected treatment efficiency and other design parameters of a combined BOD5 and nitrification trickling filter by including operating data from any existing trickling filter of similar construction and operation.(2) BOD5 Removal Requirements. A combined BOD5 and nitrification filter must achieve effluent total BOD5 of less than 15 mg/l.(3) Recirculation. A combined BOD5 and nitrification filter design must enable a high recirculation rate with turndown capability.</content><note type="source"><p>Source Note: The provisions of this §217.183 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scG/s217.184"><num value="217.184">§217.184</num><heading>Dual Treatment Using Trickling Filters</heading><content>(a) Classification. A trickling filter or other attached-growth treatment unit in series with a suspended-growth process is considered a dual treatment process that is classified as an Activated Biological Filter (ABF) System, a Trickling Filter/Solids Contact (TF/SC) System, a Roughing Filter/Activated Sludge (RF/AS) System, an Activated Biological Filter/Activated Sludge (ABF/AS) System, or a Trickling Filter/Activated Sludge (TF/AS) System. (1) ABF System. An ABF system consists of a tricking filter and a final clarifier. An ABF system recirculates settled solids from the final clarifier through the trickling filter with no separate aeration basin or solids contact basin.(2) TF/SC System. A TF/SC system consists of a trickling filter sized to remove the majority of the soluble five-day biochemical oxygen demand (BOD5 ), followed by an aerated solids contact basin sized to provide polishing and improved sludge settleability, followed by a final clarifier. A TF/SC system recirculates activated sludge to a solids contact basin. The design of a TF/SC system may include a sludge re-aeration basin.(3) RF/AS System. An RF/AS system consists of a trickling filter sized to perform primary treatment, followed by an aeration basin sized to remove the majority of the soluble BOD5 , followed by a final clarifier. An RF/AS system circulates activated sludge to the aeration basin.(4) ABF/AS System. An ABF/AS system consists of a trickling filter sized to perform primary treatment, followed by an aeration basin sized to remove the majority of the soluble BOD5 , followed by a final clarifier. An ABF/AS system recirculates activated sludge to the trickling filter.(5) TF/AS System. A TF/AS system consists of a trickling filter sized to perform roughing and concentration dampening, followed by an intermediate clarifier, followed by an aeration basin sized to remove the majority of the soluble BOD5 , followed by a final clarifier. A TF/AS system circulates activated sludge to the aeration basin.(b) Process Design.(1) Attached and suspended growth sub-processes in a dual treatment system must be designed through an integrated process that includes the effluent quality from the first stage in determining the design basis of the second stage.(2) The design of a dual treatment system must include an estimate of the performance of the second stage of a dual system using data from existing similar installations or applicable pilot studies.(3) For a dual treatment system design in which activated sludge is recycled to first-stage trickling filters, the design must not include the reduction of oxygen demand to the second-stage aeration basin because of sludge recirculation to the trickling filters.(4) The design of a dual treatment system may include estimates of the applicable design equations and methodology used for a single stage process.(c) Treatment Unit Design. The design of a suspended and attached growth system must include all of the features and operational capabilities required for the same treatment unit used for single-process treatment. The design of a suspended and attached growth system must also include the design for pretreatment, snail control, return sludge, aeration, sludge age, hydraulic residence time, and nitrification design. (1) Pretreatment. Pretreatment for a dual treatment system must conform to the requirements for a first-stage process.(2) Snail Control. A dual treatment system must include a low-velocity channel between the first-stage and second-stage treatment units for control of snails.(3) Return sludge.(A) A dual treatment system that includes recirculation of activated sludge or sloughing to trickling filters must prevent recirculation of pieces too large to pass through the distributor nozzles or the trickling filter media voids.(B) The trickling filters in a dual treatment system that recirculates sludge to the trickling filters must be of a high-rate, vertical flow design that uses fully corrugated media.(C) Sludge must be incorporated into the influent prior to application to trickling filters, and must be incorporated into the effluent from first-stage processes prior to being introduced into second-stage aeration basins.(4) Aeration. An aeration system for second-stage treatment units in a dual system not designed for nitrification must transfer at least 1.2 pounds of oxygen per pound of first stage effluent BOD5 per day. An aeration system for second-stage treatment units in systems designed for nitrification must transfer sufficient oxygen to meet stoichiometric requirements for: (A) biomass growth; (B) respiration for both carbonaceous material oxidation and nitrification; and (C) oxygen demand due to biomass sloughing events from the first-stage.(5) Sludge Age.(A) A second-stage suspended growth process must operate in a way that varies the age of the sludge.(B) The mean cell residence time must be: (i) at least 1.5 days for the suspended growth process for TF/SC systems; or (ii) at least 3.0 days if the second process is an activated sludge aeration basin.(C) A nitrifying dual treatment system must maintain a total combined mean cell residence time in the attached and suspended growth systems of at least 10.0 days with capability to provide at least 6.0 days mean cell residence time in the suspended growth process alone.(6) Hydraulic Residence Time. A design of second-stage processes must have a minimum hydraulic residence time of: (A) 0.5 hour if the second process is an aerated solids contact basin; or (B) 3.0 hours if the second process is an activated sludge aeration basin.(7) Nitrification Design. A wastewater treatment facility designed for nitrification using a dual treatment system must include: (A) a sludge re-aeration basin if the second process is an aerated solids contact basin; or (B) an intermediate clarifier if the second process is an activated sludge aeration basin.</content><note type="source"><p>Source Note: The provisions of this §217.184 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scG/s217.185"><num value="217.185">§217.185</num><heading>Rotating Biological Contactors</heading><content>(a) Pretreatment.(1) Pretreatment to remove grit, debris, and excess oil and grease must precede a rotating biological contactor (RBC). Grit, debris, and excess oil and grease must be handled and disposed of in accordance with §217.123 and §217.126 of this title (relating to Screenings and Debris Handling; and Grit Handling).(2) The executive director may require primary clarifiers, fine screens, or grit removal chambers prior to an RBC to control high levels of grease, oil, grit, or other debris in the influent waste stream.(3) Hydrogen sulfide concentration must be considered to determine whether an RBC system requires pre-aeration.(b) Enclosures and Ventilation.(1) An RBC must be covered and must provide at least six complete air exchanges per hour.(2) A cover must have working clearance of at least 30 inches above an RBC, unless the cover can be removed with on-site equipment.(3) Enclosures must be constructed of a corrosion-resistant material.(4) An RBC must include: (A) access doors on each end; and (B) observation ports with covers at 3.0 foot intervals along the RBC.(c) Media Design.(1) An RBC must provide self-cleaning action for the media.(2) RBC media must be compatible with the wastewater to be treated.(3) An RBC design using multiple stages must use low-density media material for the first stage.(d) Design Flexibility. If included in the design of an RBC, the engineering report must include descriptions of the following: (1) controlled flow to multiple first stages; (2) alternate flow and staging arrangements; (3) removable baffles between stages; and (4) provisions for step feed and supplemental aeration.(e) Tank Configuration. The design of an RBC must ensure that each RBC tank: (1) minimizes the zones in which solids will settle out; and (2) includes tank drains to facilitate removal of any accumulated solids.(f) Control of Unwanted Growth in the Initial Stages. Chlorine may be added upstream of an RBC system to control the growth of filamentous bacteria that oxidize sulfur compounds (e.g., Beggiatoa species).(g) Maintenance Provisions.(1) An RBC system with a design flow of 1.0 million gallons per day or greater must have two or more process trains, each consisting of three or more stages in series.(2) An RBC system must be able to treat the design flow with the largest process train out of service for maintenance or cleaning.(h) Bearing Maintenance. The bearings in each RBC must be easily accessible for inspection, lubrication, and replacement.(i) Organic Loading Design Requirements.(1) The design of an RBC must be based on the organic loading rate.(2) The maximum loading rate must not exceed 8.0 pounds of five-day biochemical oxygen demand (BOD5 ) per day per 1,000 square feet (sf) of media in any stage.(3) The RBC media area must be adjusted to compensate for the effects of the ratio of soluble BOD5 to total BOD5 .(4) Allowable organic loading for the entire RBC system must not exceed: (A) 3.0 lbs of BOD5 per day per 1,000 sf of media area for wastewater treatment facilities required to meet secondary treatment; or (B) 2.0 lbs of BOD5 per day per 1,000 sf of media for a wastewater treatment facility required to meet advanced secondary treatment.(j) Hydraulic Loading Design Requirements. A wastewater treatment facility using an RBC system must include flow equalization when the peak flow is more than 2.5 times the design flow to prevent loss of fixed growth from the media.(k) Stages.(1) An RBC system designed for BOD5 removal must have at least three stages in series, unless the engineering report justifies that equivalent treatment will be achieved with less than three stages. Justification must use operational data from either a full-scale operating wastewater treatment facility or pilot unit with an appropriate scale-up factor.(2) The first stage of an RBC system must include a means of spreading the influent flow evenly across the media.(l) Drive Systems. An RBC drive system must be able to handle the maximum anticipated media load and may be a variable speed system. An RBC may be mechanically driven or air driven.(1) Mechanical Drive Systems.(A) A mechanical drive system must have a motor and speed control unit capable of maintaining the required revolutions per minute.(B) A fully assembled spare mechanical drive unit must be kept on-site for each size of mechanical drive unit used in the RBC.(2) Air Drive System.(A) Each RBC using an air drive system must have air diffusers mounted below the media and off-center from the vertical axis of the RBC and must have air cups mounted on the outside of the media to collect the air.(B) The blowers must provide the capacity to supply:(i) the airflow rate necessary for each RBC; (ii) double the airflow rate to any one RBC while the others are running normally; and (iii) the required airflow with the largest blower out of service.(C) The air diffuser pipe to each RBC must: (i) be mounted so that the air diffuser pipe may be removed without draining the tank or without moving the RBC media; and (ii) include an air control valve to each RBC.(m) Dissolved Oxygen.(1) An RBC system must maintain a minimum dissolved oxygen concentration of 1.0 milligram per liter in all stages under the maximum organic loading rate.(2) The executive director may require supplemental aeration.</content><note type="source"><p>Source Note: The provisions of this §217.185 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scG/s217.186"><num value="217.186">§217.186</num><heading>Nitrifying Rotating Biological Contactors</heading><content>(a) A rotating biological contactor (RBC) system designed for five-day biochemical oxygen demand (BOD5 ) removal and nitrification of domestic wastewater in a single system must include four stages and have a maximum overall organic loading rate of 1.6 pounds of BOD5 per day per 1,000 square feet of media.(b) A nitrifying RBC must be designed to allow chemical addition if the influent pH is below 7.0 standard units.(c) The engineering report must justify the nitrification rate of a system using calculations.(d) A nitrifying RBC system may be subject to the requirements of §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals).</content><note type="source"><p>Source Note: The provisions of this §217.186 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scG/s217.187"><num value="217.187">§217.187</num><heading>Dual Treatment Utilizing Rotating Biological Contactors</heading><content>(a) A rotating biological contactor (RBC) may be used in conjunction with other treatment as a dual treatment system.(b) An RBC may be used as aroughing unit, as described in §217.182(b)(1) of this title (relating to Trickling Filters--General Requirements, regarding trickling filter classifications), in series with an activated sludge system.(c) The engineering report must include supporting data, calculations, process descriptions, and vendor information to describe how a proposed RBC system will meet the permitted effluent limitations.(d) Combined systems may be subject to the requirements of §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals).</content><note type="source"><p>Source Note: The provisions of this §217.187 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scG/s217.188"><num value="217.188">§217.188</num><heading>Submerged Biological Contactor</heading><content>(a) A submerged biological contactor (SBC) must be air driven and does not require a cover. An SBC is any biological contactor where more than 60% of the surface is below the water level at design flow.(b) An SBC system requires the same pretreatment as a rotating biological contactor system and must meet the criteria in §217.185 of this title (relating to Rotating Biological Contactors), except as described in paragraphs (1) and (2) of this subsection.(1) Each SBC unit must include two air headers - one to provide rotation of the unit, and one to provide dissolved oxygen for biological activity.(2) Submerged bearings must be sealed to prevent intrusion of wastewater.(c) If an SBC has any moving parts that require lubrication, an SBC must have lubrication access above the water level.</content><note type="source"><p>Source Note: The provisions of this §217.188 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scG/s217.189"><num value="217.189">§217.189</num><heading>Dual Treatment Systems Using Submerged Biological Contactor</heading><content>(a) A submerged biological contactor (SBC) may be used in conjunction with other treatment systems.(b) An SBC may be used as a roughing unit, as described in §217.182(b)(1) of this title (relating to Trickling Filters--General Requirements), in series with activated sludge.(c) SBC units may be installed in existing activated sludge basins to create a combination of fixed and suspended growth processes.(d) If a dual treatment system employs an SBC, the engineering report must include supporting data, calculations, process descriptions, and vendor information to describe how the proposed dual treatment system will provide the required treatment levels.(e) These designs may be subject to the requirements of §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals).</content><note type="source"><p>Source Note: The provisions of this §217.189 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scG/s217.190"><num value="217.190">§217.190</num><heading>Filtration</heading><content>(a) Reasons for Use.(1) Permit Requirements. A wastewater treatment facility that requires tertiary effluent limitations must use filtration as a unit of operation to supplement suspended solids removal. Tertiary effluent limits are any limits less than or equal to five milligrams per liter for five-day biochemical oxygen demand or total suspended solids.(2) Specific Water Quality Requirements. A wastewater treatment facility designed for secondary or advanced secondary treatment effluent limitations may use filtration as a unit of operation to supplement suspended biological floc removal. Filters may be designed for intermittent operation if filters are not necessary to meet permitted effluent limitations.(b) Redundancy.(1) A wastewater treatment facility using filtration to provide tertiary treatment to comply with a permit requirement must have a minimum of two independent, fully functional filter basins with independent, fully functional equipment.(2) The design of a filtration system must specify the submerged filter surface area required to treat the peak flow with the largest filter unit out of service.(3) If a filter is provided solely to polish wastewater in situations where permit compliance does not depend on the use of a filter, such as in some cases of reclaimed water use, one filter is allowed.(c) Source of Backwash Water. A filtration system must use filtered effluent as the source of backwash water.(d) Disposition of Backwash Water. A filtration system must return backwash water containing material cleaned from a filter to the headworks of the wastewater treatment facility or to the influent lift station for processing.(e) Sequence of Treatment Units.(1) A final clarifier must precede a filter.(2) A filter system may be used in conjunction with a disinfection tank to provide additional detention time, provided the filter is backwashed to the headworks of the wastewater treatment facility or to the influent lift station.(f) Overload Conditions. A design must prevent effluent or partially treated effluent from overflowing from any filtration unit.(g) Control of Slime Growth. A filtration system must provide periodic disinfectant in the influent stream to control slime growth in the filter and backwash storage tank.</content><note type="source"><p>Source Note: The provisions of this §217.190 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scG/s217.191"><num value="217.191">§217.191</num><heading>Additional Requirements for Deep Bed, Intermittently Backwashed, Granular Media Filters</heading><content>(a) Application Rates. With one unit out of service, the peak application rate to any deep bed, intermittently backwashed, granular media (deep bed) filtration unit must not exceed twice the design application rate.(1) Single Media (Sand).(A) The design filtration rate for single media (sand) filters must not exceed three gallons per minute per square foot (gpm/sf) of media surface.(B) The maximum filtration run time between backwash periods is 6.0 hours.(2) Dual Media (Stratified Anthracite and Sand). The design filtration rate for a dual media (anthracite and sand) filter must not exceed 4.0 gpm/sf of media surface.(3) Mixed Media (Non-stratified Anthracite, Sand, Garnet, or Other Materials). The design filtration rate for mixed media (non-stratified anthracite, sand, garnet, or other materials) must not exceed 5.0 gpm/sf of media surface.(b) Media Design.(1) A deep bed filter underdrain system must include a graded gravel layer with a minimum depth of 15 inches. Filter support media other than gravel may be used if justified in the engineering report.(2) The uniformity coefficient of media used in a deep bed filter must be 1.7 or less.(3) A dual or mixed deep bed filter must be designed to maintain stratification of media during backwash, based on the particle size distribution. (4) Media material depths for the various deep bed filter types must conform to the values in the following table, unless other media depths are justified in the engineering report with an analysis of the backwash rates:Attached Graphic(c) Backwash Systems.(1) Flowrate and Media Expansion.(A) A backwash system must allow a fluidized media expansion of at least 20% by volume.(B) A single media deep bed filter must provide a minimum backwash flowrate of 6.0 gpm/sf of media area.(C) Dual and mixed media deep bed filters must provide a minimum backwash rate of 15 gpm/sf of media area.(D) Backwash times must be at least 10 minutes but not more than 15 minutes, unless the engineering report justifies a different time.(2) Surge Control.(A) A wastewater treatment facility that does not have flow equalization or other means of surge control must have a backwash tank.(B) A surge control device must prevent increases in flow greater than 15% of the design flow of the upstream treatment units if backwash is taken directly to the headworks of the wastewater treatment facility or the influent lift station.(C) The design of a surge control device must be based on calculations that demonstrate the slug effects of backwash water and that demonstrate treatment capabilities are not diminished with the return of backwash water to the headworks of the wastewater treatment facility or the influent lift station.(D) An enclosed backwash tank must be vented.(3) Pumps.(A) Pumps for backwashing deep bed filters units must deliver the required flow rate for backwash operations according to paragraph (1) of this subsection with the largest pump out of service.(B) A backup pump must be available on-site.(C) A valve arrangement for isolating a deep bed filter unit for backwashing must be accessible for maintenance.(D) A backwash system employing automatic controls must include a manual override system.(4) Supplemental Systems.(A) A single deep bed media filter system must include either an air scour system or a combination air and water scour system in addition to an up-flow backwash water system.(B) A dual or mixed deep bed media filter system must include either a surface air or water scour system that meets one of the following requirements for air or water scouring.(i) Air scour system flowrates must be at least 3.0 standard cubic feet per minute per square foot (scfm/sf) of media surface area but not more than 5.0 scfm/sf of media surface area.(ii) Water scour system flowrates must be at least 0.5 gpm/sf of media area but not more than 2.0 gpm/sf of media area.(d) Underdrain System. An underdrain system must provide a uniform distribution for filter backwash without plugging or exceeding the manufacturer's recommendation for maximum head loss. The manufacturer's recommendation for maximum head loss must be included in the engineering report.(e) Tank Design.(1) The bottom of a wash water collection trough must be a minimum of 6.0 inches above the maximum elevation of the expanded media during backwash.(2) A wash water collection trough must have a minimum freeboard of 3.0 inches during the maximum backwash flowrate.(f) Controls.(1) The deep bed filter operation controls may be manual or automatic.(2) Control indicators must be visible to a wastewater treatment facility operator while adjusting the controls.(3) An automatically controlled system must include a manual override system.(4) Each deep bed filter unit must have a head loss indicator.</content><note type="source"><p>Source Note: The provisions of this §217.191 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scG/s217.192"><num value="217.192">§217.192</num><heading>Additional Design Requirements for Multi-Compartmented, Low Head, Automatically Backwashed Filters</heading><content>(a) Application Rates.(1) With one unit out of service, the peak application rate to any multi-compartmented, low head, automatically backwashed (multi-compartmented) filter unit must not exceed twice the design application rate.(2) The engineering report must include manufacturer's recommended filtration and application rates with test data.(3) Single Media. A single media multi-compartmented filter must have a maximum design filtration rate of 3.0 gallons per minute per square foot of media surface.(4) Dual Media. A dual media multi-compartmented filter must have a maximum design filtration rate of 4.0 gallons per minute per square foot of media surface.(b) Media Design. Media sizes and depths must correspond to the values in Table G.5. in Figure: 30 TAC §217.192(b), unless an engineer uses calculations to justify different media sizes, depths, or both in the engineering report.Attached Graphic(c) Backwash System.(1) A backwash system must provide a minimum backwash rate of 20 gallons per minute per square foot of media.(2) The backwash duration must last at least 20 seconds for each compartment and must allow a fluidized media expansion of at least 20% by volume, unless the engineering report includes the manufacturer's recommended backwash rates with test data that supports a shorter backwash duration or less expansion of the fluidized media.(3) The surge control and pumping system requirements must be the same as those detailed in §217.191(c)(2) and (3) of this title (relating to Additional Requirements for Deep Bed, Intermittently Backwashed, Granular Media Filters).(d) Traveling Bridge. A traveling bridge mechanism must: (1) provide support and access to the backwash pumps and equipment; (2) be constructed of corrosion-resistant materials; (3) have provisions for consistent tracking of the bridge and safe support of the power cords; and (4) initiate a backwash cycle automatically when a preset head loss through the filter media occurs.(e) Floating Material Control. A multi-compartmented filter system must provide for automatic removal of any floating material from the surface of the multi-compartmented filter and return the floating material to the headworks of the wastewater treatment facility for further processing.</content><note type="source"><p>Source Note: The provisions of this §217.192 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scG/s217.193"><num value="217.193">§217.193</num><heading>Cloth or Disk Filter Systems</heading><content>(a) Cloth or disk filter systems must meet the requirements in §217.190 of this title (relating to Filtration).(b) Media Design.(1) The average pore size of cloth or disk filter media must not exceed 30 microns.(2) The media thickness must be based on the manufacturer's recommendations, considering frequent pressure changes. The manufacturer's recommendations must be included in the engineering report.(3) The media must be disinfectant-resistant if the filter will be exposed to disinfectants.(4) The media must be chlorine-resistant if the filter will be exposed to chlorine.(c) Filtration Rates and Hydraulic Requirements.(1) The design filtration rate must be based on the effective submerged surface area of the media. If the submerged surface area of the media varies based on the operational mode, the design filtration rate must account for the variability.(2) The maximum design filtration rate for peak flow must not exceed 6.5 gallons per minute per square foot of submerged media.(3) The filtration system must be able to treat the design flow rate with one filter unit in backwash mode.(4) The backwash flux rate must be at least 6.0 gallons per minute per square foot of media, based on the portion of the filter surface that is being actively backwashed.(d) Disposal of Backwashed Material.(1) Liquid filter backwash must be re-filtered or must be returned to the headworks of the wastewater treatment facility or to the influent lift station.(2) Solid filter backwash material must be pumped to the influent lift station, the headworks, the digester, or to another location approved in writing by the executive director for processing at least once per day.(e) Monitoring and Controls.(1) Cloth or disk filters must use an automatic control system.(2) An automatic control system must include manual override capability.(3) Each filter unit must monitor head loss across the unit and must have a head loss gauge or readout.(4) Each filter unit must monitor effluent turbidity and have a turbidity gauge or readout.(5) Gauges and readouts must be readable from the control panel.(f) Weather Resistance. Cloth or disk filter systems must be protected from the environment. The engineering report must describe how the system will be protected from freezing conditions, ultraviolet light, and similar environmental concerns.</content><note type="source"><p>Source Note: The provisions of this §217.193 adopted to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scG/s217.194"><num value="217.194">§217.194</num><heading>Alternative Designs for Effluent Polishing</heading><content>The executive director shall review alternative processes for tertiary suspended solids removal, other than filters, as non-conforming technologies subject to the requirements of §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals).</content><note type="source"><p>Source Note: The provisions of this §217.194 adopted to be effective December 4, 2015, 40 TexReg 8254.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c217/scH"><num value="H">SUBCHAPTER H</num><heading>NATURAL TREATMENT UNITS</heading><section identifier="/us/state/tx/tac/t30/p1/c217/scH/s217.201"><num value="217.201">§217.201</num><heading>Applicability</heading><content>This subchapter establishes the minimum requirements for Imhoff tanks, constructed wetlands, and all lagoons used to store treated, untreated, or partially treated domestic wastewater, including facultative lagoons, aerated and partially aerated lagoons, stabilization lagoons, raw influent storage lagoons, treated effluent storage lagoons, evaporative lagoon systems, and overland flow processes, except that lagoons used for reclaimed water under Chapter 210 of this title (relating to Use of Reclaimed Water) must comply with the requirements of that chapter.</content><note type="source"><p>Source Note: The provisions of this §217.201 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scH/s217.202"><num value="217.202">§217.202</num><heading>Primary and Secondary Treatment Units</heading><content>(a) A primary treatment unit may be an aerated lagoon, a partially aerated lagoon, a facultative lagoon, an evaporative lagoon, or an Imhoff tank.(b) A secondary treatment unit may be a stabilization lagoon, a constructed wetland, an evaporative lagoon, or an overland flow process. A secondary treatment unit may be used for polishing and tertiary treatment.(c) A treated effluent storage lagoon downstream of the sampling location in the wastewater treatment facility permit is not considered a treatment unit for the purposes of this chapter.(d) A secondary treatment unit must be preceded by a primary treatment unit.</content><note type="source"><p>Source Note: The provisions of this §217.202 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scH/s217.203"><num value="217.203">§217.203</num><heading>Design Criteria for Natural Treatment Facilities</heading><content>(a) This section applies to all earthen lagoons and earthen treatment units in a wastewater treatment facility, including constructed wetlands, facultative lagoons, aerated lagoons, partially aerated lagoons, stabilization lagoons, evaporative lagoons, and storage lagoons. Storage lagoons are considered treatment units for the purposes of this chapter if they hold wastewater that is not final treated effluent, such as raw influent or wastewater that has received intermediate treatment.(b) Flow Distribution. The shape and size of a treatment unit must ensure uniform distribution of the wastewater flow.(c) Windbreaks and Screening.(1) A windbreak or vegetative screening must be used if operation of the treatment system could cause spray to drift off of the property. (2) The use, type, and extent of windbreaks or vegetative screening must be approved in writing by the executive director.(d) Maximum Liner Permeability.(1) Except as provided in paragraph (3) of this subsection, constructed wetlands, facultative lagoons, aerated lagoons, partially aerated lagoons, stabilization lagoons, evaporative lagoons, and storage lagoons must be constructed with a liner material that has a coefficient of permeability less than 1 × 10-7 centimeters per second for a thickness of:(A) 2.0 feet for water depths less than or equal to 8.0 feet; and (B) 3.0 feet for water depths greater than 8.0 feet.(2) A liner must extend from the lowest elevation in a lagoon or constructed wetland, up to an elevation of 2.0 feet above normal water elevation in the lagoon or constructed wetland.(3) If a lagoon is constructed to store treated wastewater authorized as reclaimed water under Chapter 210 of this title (relating to Use of Reclaimed Water), the lagoon liner must comply with §210.23 of this title (relating to Storage Requirements for Reclaimed Water).(e) Compliance with the Liner Permeability Requirements. A lagoon must be lined and tested according to the requirements of this subsection. The engineering report must include the results of all tests required by this subsection.(1) Sampling Requirements for Soil Liners.(A) Sample Analysis. Soil liner material must be sampled and analyzed before construction. All samples of the liner material must meet the following requirements:(i) the coefficient of permeability must be less than 1 × 10-7 centimeters per second;(ii) at least 30% of the liner material must pass through a 200 mesh sieve;(iii) the liner material must have a liquid limit greater than 30%; and(iv) the liner material must have a plasticity index of 15 or greater.(B) Preconstruction Sampling for Unamended In-Situ Liners. Permeability testing for an unamended in-situ soil liner requires undisturbed core samples of the liner material. At least one undisturbed core sample must be analyzed for every 0.25 acre of liner surface area on the bottom of each lagoon or constructed wetland. At least one additional undisturbed core sample must be analyzed for every 0.25 acre of liner surface area from each side of each lagoon or constructed wetland. All undisturbed core samples must have a coefficient of permeability less than 1 × 10-7 centimeters per second. The engineering report must demonstrate that the in-situ soil liner meets the minimum thickness requirements in subsection (d)(1) of this section.(C) Preconstruction Sampling for Imported Soil Liners and Amended In-Situ Soil Liners. Four samples must be tested for every 0.25 acres of liner surface area in each lift according to subparagraph (A)(ii) - (iv) of this paragraph. At least one out of every four samples must be tested for permeability according to subparagraph (A)(ii) of this paragraph. If samples are collected before compaction, molded samples of the liner material mixture may be tested instead of undisturbed core samples for imported soil liners and amended in-situ soil liners. (D) Post-construction Sampling. A minimum of one undisturbed core sample must be analyzed after the liner is complete for each 0.25 acre of liner surface area on the bottom of each lagoon or constructed wetland. At least one additional undisturbed core sample must be analyzed for every 0.25 acre of liner surface area from each side of each lagoon or constructed wetland. The coefficient of permeability must be less than 1 × 10-7 for each sample. An unamended in-situ liner does not require post-construction sampling if it meets the pre-construction requirements in subparagraphs (A) and (B) of this paragraph and the construction requirements in paragraph (2)(B) of this subsection.(2) Soil Liner Construction.(A) Amended In-situ or Imported Soil Liner Construction. All amended in-situ or imported soil liners must comply with the following requirements:(i) liner material must be placed in loose lifts that are each no more than 8.0 inches in thickness; (ii) each lift must be compacted to at least 95% standard proctor density at -1% to +3% optimum moisture according to American Standards for Testing and Materials (ASTM) D 698; (iii) each lift must be no more than 6.0 inches thick after compaction and the completed liner must meet the minimum thickness requirements in subsection (d)(1) of this section; and(iv) the in-situ subgrade must be scarified before placement of the lowest lift.(B) Unamended In-situ Soil Liner Construction. All unamended in-situ soil liners must comply with the following requirements. (i) The liner must include at least one 8.0 inch loose lift of excavated in-situ material that is compacted to no more than 6.0 inches at 95% standard proctor density at -1% to +3% optimum moisture according to ASTM D 698.(ii) The in-situ subgrade must be scarified before placement of the lowest lift.(3) Synthetic Membrane Liner Construction. All synthetic membrane liners must comply with the following requirements.(A) A synthetic membrane liner must have a minimum thickness of 40 mils.(B) A synthetic membrane liner must include an underdrain with a leachate detection and collection system.(C) Synthetic membrane liner material must be able to withstand constant sunlight without degrading.(D) Soil compaction beneath a synthetic liner must meet the liner manufacturer's requirements.(f) Embankment Design and Construction.(1) The top of an embankment must be at least 10.0 feet wide.(2) The engineering report must justify all inner and outer embankment slopes steeper than 1.0 foot vertical to 4.0 feet horizontal from the top of the embankment.(3) Inner and outer embankment slopes steeper than 1.0 foot vertical to 3.0 feet horizontal are prohibited.(4) All embankments must be protected against erosion by establishing grass, paving, riprapping, or any other method approved in writing by the executive director.(5) All vegetated embankments must have a minimum cover of 6.0 inches of topsoil.(g) Disinfection. Unless otherwise specified in the wastewater treatment facility's wastewater permit, chemical or ultraviolet disinfection is not required if a detention time of at least 21 days is provided in the plant-free water surface with full sun exposure in accordance with §309.3(g) of this title (relating to Application of Effluent Sets).(h) Sampling Point Significance. The size or design of a treatment unit upstream of the permitted sampling point must not be based on the design of any storage lagoon or other structure downstream of the permitted sampling point.(i) Stormwater Drainage. A natural treatment system must be designed and constructed to prevent stormwater from draining into the system.(j) Piping. A natural system must have piping that allows water in each lagoon or wetland cell to be re-routed to a different lagoon or wetland cell for maintenance.(k) Freeboard.(1) A lagoon must have a minimum of 2.0 feet of freeboard above the normal operating level if the lagoon's normal water surface area is less than 20 acres.(2) A lagoon must have a minimum of 3.0 feet of freeboard above the normal operating level if the lagoon's normal water surface area is 20 acres or more.(3) A constructed wetland cell must have at least 2.0 feet of freeboard above the normal operating level, or the freeboard required to manage the selected wetland plant population, whichever is greater.(l) Prohibition of Synthetic Liners for Constructed Wetlands. The use of a synthetic membrane liner for a free water surface constructed wetland is prohibited.</content><note type="source"><p>Source Note: The provisions of this §217.203 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scH/s217.204"><num value="217.204">§217.204</num><heading>Imhoff Tanks</heading><content>(a) Settling Compartment.(1) The minimum length-to-width ratio of a settling compartment is 2.0 to 1.0.(2) A tank inlet must provide uniform flow distribution across the width of a settling compartment.(3) The septum walls must slope to the center of a compartment at an angle of at least 50 degrees but not more than 60 degrees from horizontal. The septum walls must create an overlap with a continuous slot that is at least 8.0 inches wide between the walls to allow solids to be dispersed into the digestion compartment. To prevent gases from escaping through the slot, one of the septum walls must continue past the slot to create a slot overhang of at least 8.0 inches.(4) The depth between the water level at design flow and the plane of a slot must not be more than 9.0 feet.(5) At least 18 inches of freeboard must be provided above the normal water level.(b) Surface Loading.(1) The settling compartment surface loading rate must not exceed 800 gallons per day per square foot of settling compartment area under design flow conditions.(2) The longitudinal velocity of wastewater through a settling compartment must not exceed 1.0 foot per second under peak flow conditions.(c) Scum Baffles. An inlet and an outlet of an Imhoff tank must include scum baffles with a height that meets the water levels at all flows from minimum flow to peak flow.(d) Gas Vents.(1) An Imhoff tank must include gas vents with a total area not less than 20% of the total Imhoff tank surface area. The total Imhoff tank surface area must be included in the engineering report.(2) At least one vent opening must be large enough to allow equipment into the digestion compartment for maintenance.(e) Digestion Compartment Loading. The digestion compartment minimum volume must be 3.5 cubic feet per capita or 20.5 cubic feet per pound of influent five-day biochemical oxygen demand (BOD5 ) per day, whichever is greater.(f) Imhoff Tank Dimensions. The total depth of an Imhoff tank must not be less than 16.5 feet from the water surface to the bottom of a digestion compartment at design flow.(g) Sludge Removal.(1) The digestion compartment of an Imhoff tank must have a sludge withdrawal pipe.(2) A sludge withdrawal pipe must have a minimum diameter of 8.0 inches and include a provision for regular cleaning.(3) A digestion compartment design must allow a portable pump to remove accumulated sludge.(h) Odor Management.(1) The design of an Imhoff tank must minimize the effect of odor from the gas vents.(2) The executive director may require a bio-filter, a carbon filter, or other odor control device to minimize odor.(i) Treatment Efficiency.(1) An Imhoff tank must be followed by at least one subsequent treatment unit.(2) A design may assume that an Imhoff tank removes 35% of the influent BOD5 .(j) Material and Construction.(1) An Imhoff tank must be constructed of reinforced and sealed concrete.(2) Each component of an Imhoff tank must be resistant to the corrosive effects of a wastewater environment.</content><note type="source"><p>Source Note: The provisions of this §217.204 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scH/s217.205"><num value="217.205">§217.205</num><heading>Facultative Lagoons</heading><content>(a) Configuration, Inlets, and Outlets.(1) The length-to-width ratio of a facultative lagoon must be 3.0 to 1.0.(2) The flow in a facultative lagoon must be from an inlet along one end of the lagoon to an outlet at the opposite end of the lagoon.(3) The length of a facultative lagoon must be oriented in the direction of the prevailing winds with the inlet side located such that debris will be blown toward the inlet.(4) A facultative lagoon must have inlet baffles to collect floatable material when no pre-screening is provided.(5) An outlet must be adjustable to allow the water level of a facultative lagoon to vary under normal operating conditions. (b) Depth.(1) The deeper portion of a facultative lagoon near the inlets must have a minimum depth of 12 feet to provide sludge storage and anaerobic treatment.(2) The deeper portion of a facultative lagoon must cover at least 25% of the area of the lagoon bottom.(3) The remainder of a facultative lagoon must have a minimum depth of 8.0 feet.(c) Organic loading. The organic loading must not exceed 150 pounds of five-day biochemical oxygen demand (BOD5 ) per acre per day based on the surface area of the facultative lagoon.(d) Odor Control.(1) A facultative lagoon inlet must be at least 24 inches below the water surface to minimize odor.(2) An outlet must be at least 12 inches below the water surface, but not further below the water surface than a distance equal to one-half the depth of the lagoon at the outlet.(3) The design of a facultative lagoon must allow for recirculation of at least 50%, but not more than 100% of the design flow.(4) The design of a facultative lagoon must prevent siphoning of lagoon contents through a submerged inlet.(e) Removal efficiency. The design of a facultative lagoon must not be based on more than 50% removal of the influent BOD5 .</content><note type="source"><p>Source Note: The provisions of this §217.205 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scH/s217.206"><num value="217.206">§217.206</num><heading>Aerated Lagoons</heading><content>(a) The requirements of this section apply to both completely mixed aerated lagoons and partially mixed aerated lagoons, unless otherwise specified.(b) A minimum of 1.6 pounds of oxygen per pound of influent five-day biochemical oxygen demand (BOD5 ) must be maintained in an aerated lagoon system, even with the largest single aeration unit in a lagoon system out of service.(c) The aeration equipment must have an audio-visual alarm system. If a wastewater treatment facility is not staffed 24 hours per day, the alarm system must be connected to a telemetry system, such as an auto dialer or Supervisory Control and Data Acquisition system, with battery backup.(d) The BOD5 removal in each aerated lagoon must be calculated using the following equation:Attached Graphic(1) The value of K for domestic wastewater in a completely mixed lagoon is 0.50 day-1 at 20 degrees Celsius. The value of K for domestic wastewater in a partially mixed lagoon is 0.28 day-1 at 20 degrees Celsius. (2) The value of K must be adjusted for the minimum monthly water temperature using the following equation:Attached Graphic(3) The value of K must be determined for high-strength or industrial wastewater by either a laboratory study or an evaluation of an existing wastewater treatment facility treating wastewater with similar organic strength and industrial contributions.(e) Aeration Equipment.(1) The size of the aeration equipment in an aerated lagoon must be able to supply the oxygen demand determined in subsection (b) of this section.(2) For the purpose of sizing aeration equipment, an aerated lagoon must comply with the mechanical and diffused air requirements in §217.155(c) of this title (relating to Aeration Equipment Sizing).(3) If multiple partially mixed aerated lagoons are used in series, the power input may be reduced as the influent BOD5 to each lagoon decreases.(f) Aerated Lagoon Design Requirements. An aerated lagoon system must be designed according to the requirements for a wastewater treatment lagoon in §217.203(f) of this title (relating to Design Criteria for Natural Treatment Facilities) and §217.207(d) of this title (relating to Stabilization Lagoons).(g) Scour Prevention. An earthen-lined aerated lagoon system must include a concrete scour pad in each area of the earthen liner that is subject to a velocity equal to or greater than 1.0 foot per second.</content><note type="source"><p>Source Note: The provisions of this §217.206 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scH/s217.207"><num value="217.207">§217.207</num><heading>Stabilization Lagoons</heading><content>(a) Primary treatment must remove the settleable and floatable solids in the influent prior to the wastewater entering a stabilization lagoon.(b) Odor Management.(1) A stabilization lagoon must be located so that odors from the stabilization lagoon will not cause a nuisance.(2) If uncontaminated water is available, a stabilization lagoon must be pre-filled with uncontaminated water to the 2.0 foot level at start-up.(3) A stabilization lagoon system must include a piping arrangement that allows the recirculation of effluent from a final lagoon to the influent side of an initial stabilization lagoon.(4) A stabilization lagoon may return recirculation water by surface spray to assist in maintaining aerobic conditions at the lagoon surface and to reduce potential odor.(c) Minimum Number of Wastewater Stabilization Lagoons. At least two stabilization lagoons are required to comply with secondary treatment limits. The stabilization lagoons must be operated in series, following the primary treatment unit.(d) Stabilization Lagoon Design.(1) The minimum length-to-width ratio of a stabilization lagoon is 3.0 to 1.0.(2) Inlet and outlet structures must be adjustable to assist in controlling vegetative growth. Inlet and outlet structures must allow the water level to be raised and lowered by at least 6.0 inches.(e) Pipe and Hydraulic Equipment.(1) All structures and pipes in a stabilization lagoon must be sized to transport at least 250% of the wastewater treatment facility's design flow.(2) The inlet and outlet structures must be sized to convey the volume contained within the top 6.0 inches of a lagoon within a 24-hour period, based on the normal water level at design flow and the corresponding pressure head.(3) The pipe and recirculation system must allow a stabilization lagoon system to comply with the wastewater treatment facility's permitted effluent limitations, even with any one lagoon out of service.(f) Maximum Surface Organic Loading Rate for Stabilization Lagoons.(1) The maximum surface organic loading rate on a stabilization lagoon series is 35 pounds (lbs) of five-day biochemical oxygen demand (BOD5 ) per acre per day.(2) The maximum surface organic loading rate on the first lagoon in a stabilization lagoon series is 75 lbs of BOD5 per acre per day.(3) The surface organic loading rate applied to a stabilization lagoon series is equal to the total influent organic loading minus any reduction in organic load provided by the primary treatment units.(g) Inlet and Outlet Structures.(1) A stabilization lagoon outlet must include removable baffles to prevent floating material from being discharged, and must be constructed to operate correctly as the level of the lagoon surface varies under normal operating conditions.(2) An outlet must be at least 18 inches but not more than 24 inches below the water surface in a stabilization lagoon to control the discharge of duckweed and floating algae.(3) A multipurpose control structure may be used to facilitate normal operational functions such as drawdown, flow distribution, adjusting water depth, flow measurement, sampling, access for pump for recirculation, chemical addition, and exclusion of floating materials. A multipurpose control structure may also be used to minimize the number of special purpose structures in a stabilization lagoon.(4) A pipe embankment penetration must have a seep water-stop collar.(5) A stabilization lagoon must have a drainpipe that allows the stabilization lagoon to be emptied for maintenance and may use a pump as part of a drainage system. If a permanent drain pipe will not be installed, a temporary pipe suction station must be provided.</content><note type="source"><p>Source Note: The provisions of this §217.207 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scH/s217.208"><num value="217.208">§217.208</num><heading>Evaporative Lagoons</heading><content>(a) Design.(1) If evaporative lagoons are used, the wastewater treatment facility must have at least two evaporative lagoons.(2) The primary evaporative lagoon must provide at least 60% of the total surface area of the total evaporative lagoon system.(3) The number and size of evaporative lagoons must provide adequate evaporation for the design flow during periods of low evaporation. For the purposes of this chapter, the low evaporation rate used in design must be the lowest annual evaporation rate in the past 25 years from the Texas Water Development Board's precipitation and lake evaporation dataset for the quadrangle where the evaporation lagoon is located.(b) Odor Management. An evaporative lagoon must be located so that odors from the evaporative lagoon will not cause a nuisance.(c) Configuration, Depth, and Loading.(1) An evaporative lagoon may be constructed in a round, square, or rectangular shape. The corners of a square or rectangular shaped evaporative lagoon must be rounded in order to minimize accumulation of floating materials.(2) The depth of an evaporative lagoon is dependent on its location within the lagoon system, as set forth in subparagraphs (A) and (B) of this paragraph.(A) The maximum operating depth for a primary evaporative lagoon is 5.0 feet, but the area around an inlet must be designed with additional depth for solids deposition according to the criteria in §217.205 of this title (relating to Facultative Lagoons).(B) The maximum operating depth for a secondary evaporative lagoon is 8.0 feet.(3) Evaporation and Organic Loading.(A) The size of an evaporative lagoon system must be based on the evaporation rate for the site and a maximum allowable organic loading rate.(B) The evaporation loss must be calculated by using the Penman-Monteith method or a comparable, established method.(C) An evaporative lagoon system must be sized to account for the influent flows and precipitation from a 25-year frequency, one-year rainfall event in accordance with §309.20(b)(3)(B) of this title (relating to Land Disposal of Sewage Effluent), unless the engineering report includes an alternate method of disposing of the wastewater, along with supporting documentation.(D) The five-day biochemical oxygen demand (BOD5 ) loading on a primary evaporative lagoon must not exceed 150 pounds of BOD5 per acre of surface area per day.(d) Embankment. The embankments for an evaporative lagoon must be constructed in accordance with §217.203(f) of this title (relating to Design Criteria for Natural Treatment Facilities). (e) Inlet and Outlet Structures.(1) An influent line for an evaporative lagoon must terminate into a manhole located along the embankment edge.(2) An inlet manhole invert must be a minimum of 6.0 inches above the maximum high water level of a primary evaporative lagoon or provide other means to prevent backflow into an upstream treatment unit.(3) A submerged discharge pipe must extend from a manhole along and anchored to the bottom of an evaporative lagoon.(4) An inlet discharge pipe must discharge onto a concrete apron in a depression near the center of the primary evaporative lagoon to prevent scour. A concrete apron must be at least 2.0 square feet in surface area, be at least 8.0 inches thick, and be resistant to the corrosive effects of a wastewater environment.(5) Inlet and outlet structures for an evaporative lagoon must be designed and constructed in a manner that allows the water surface elevation to be varied during normal operating conditions.</content><note type="source"><p>Source Note: The provisions of this §217.208 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scH/s217.209"><num value="217.209">§217.209</num><heading>Constructed Wetlands</heading><content>(a) Types of Constructed Wetlands. A constructed wetland may be either a free water surface system or subsurface flow system.(b) Natural Wetlands. The use of natural wetlands for wastewater treatment is prohibited. For the purposes of this chapter, a natural wetland is an area which was not constructed for wastewater treatment that meets the definition of wetlands in 40 Code of Federal Regulations, Part 230.(c) Constructed Wetland Design.(1) A constructed wetland must be preceded by primary treatment or secondary treatment.(2) A primary treatment system that precedes a constructed wetland must be designed to control odor and algae.(3) A primary treatment system must produce an effluent quality with no more than 150 milligrams per liter of five-day biochemical oxygen demand to discourage anaerobic conditions and stress on vegetative communities in any subsequent wetland treatment unit.(4) A wastewater treatment facility that uses a constructed wetland as the means of complying with a permit effluent limit must be sized and designed to ensure that the permit limitations will be met even when any one wetland cell is out of service. The engineering report must include water balance calculations and the potential effect of evaporation on the predicted effluent concentrations.(d) Vegetation. A constructed wetland must have a diverse vegetative community of emergent and floating plants to minimize any adverse impact from potential disease, insect pests, or species-specific toxicity. A constructed wetland must include a diversity of plants selected from the following categories of emergent plants, floating plants, or both.(1) Emergent plants for use in constructed wetlands include: (A) Schoenoplectus spp. (bulrush); (B) Sagittaria spp. (arrowhead); (C) Phragmites spp. (reeds); (D) Juncus spp. (rushes); (E) Eleocharis spp. (spikerush); (F) Carex spp. (sedges); (G) Caladium spp. (elephant ear);(H) various aquatic grass species (e.g., wild rice); and(I) other appropriate emergent plant species approved in writing by the executive director.(2) Floating plants for use in constructed wetlands include: (A) Lemna spp. (duckweed); (B) Hydrocotyle umbellata (water pennywort); (C) Limnobium spongia (frogbit); (D) Nymphaea spp. (water lily); (E) Wolffia spp. (water meal); or (F) other appropriate floating plant species approved in writing by the executive director.(3) The vegetation used in a constructed wetland must be suitable for the local growing conditions. The use of indigenous plants is recommended if the species have been demonstrated effective in a constructed wetland wastewater environment. The engineering report must identify the plants that will be used in each constructed wetland.(4) Plans for harvesting aquatic plants from water in the state must be reviewed with the United States Army Corps of Engineers to determine if regulatory coordination is required.(5) Gathering seed plants from natural wetlands must minimize any impact on the harvested plant community and the natural wetlands.(6) The use of any harmful or potentially harmful wetland plant or organism is subject to review by the Texas Parks and Wildlife Department, as required by 31 TAC §§57.111 - 57.118 and §§57.251 - 57.258 (relating to Definitions; General Rules; Exceptions; Health Certification of Harmful or Potentially Harmful Exotic Shellfish; Transportation of Harmful or Potentially Harmful Exotic Species; Exotic Species Transport Invoice; Exotic Species Permit: Application Requirements; Exotic Species Permit Issuance; Definitions; General Provisions; Permit Application; Denial; Renewal; Amendment; Reporting and Recordkeeping; and Prohibited Acts, respectively). (e) Maintenance of a constructed wetland must not result in a deterioration of effluent quality.(1) The use of herbicides, insecticides, and fertilizers in a constructed wetland is prohibited.(2) Floating Material Removal.(A) A constructed wetland must be designed to allow the removal of an algal mat or other floating material prior to the effluent entering each cell of the constructed wetland.(B) A removal mechanism must be a screen, a submerged adjustable inlet, a baffle, or another method approved in writing by the executive director. The removal mechanism must be justified in the engineering report.(C) The removed floating material must be stored and disposed of in a manner that minimizes odor and complies with the requirements of Chapter 330 of this title (relating to Municipal Solid Waste).(3) The operation and maintenance manual for a wastewater treatment facility that has a constructed wetland must include a detailed description and schedule for maintaining the constructed wetlands. The maintenance plan must include a schedule and procedure for removing overabundant live plant material and dead plant material.(f) A constructed wetland system must have an established plant community and must be functioning properly before wastewater effluent is processed. The engineering report must include a management and oversight program that specifies construction scheduling, plant species selection, planting practices, and start-up procedures.(g) Liners.(1) The liner for a constructed wetland system must comply with the requirements of §217.203(d) and (e) of this title (relating to Design Criteria for Natural Treatment Facilities).(2) A layer of productive topsoil at least 6.0 inches thick must be placed above a liner to encourage root propagation.(h) Berms. A berm of a constructed wetland must comply with the requirements of §217.203(f) of this title.(i) Flood Hazard Analysis. A constructed wetland must be protected from flooding according to the requirements of §217.35 of this title (relating to One Hundred-Year Flood Plain Requirements).(j) Nitrification. A constructed wetland that provides nitrification is an innovative and non-conforming technology and is subject to the requirements of §217.7(b)(2) of this title (relating to Types of Plans and Specification Approvals).(k) Allowed Uses. A constructed wetland may be used as a secondary treatment unit, as an advanced secondary treatment unit, or for polishing wastewater effluent. A constructed wetland may not be used for primary treatment.</content><note type="source"><p>Source Note: The provisions of this §217.209 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scH/s217.210"><num value="217.210">§217.210</num><heading>Constructed Wetlands--Free Water Surface Design</heading><content>(a) Areas of emergent vegetation in a free water surface (FWS) wetland must have a maximum water depth less than or equal to 24 inches at design flow.(b) Plants.(1) Emergent plant spacing must be no more than 66 inches on center.(2) If floating plants are used in a FWS wetland, the wetland must also contain emergent plants.(c) Multiple Cells. An FWS wetland must include multiple cells that can be operated independently, allowing an individual cell to be removed from service while maintaining system operations.(d) System Size. An FWS wetland system must be sized to meet permit effluent limits, even when any single cell is removed from service.(e) Bottom slope.(1) An FWS wetland cell must have adequate bottom slope, or other means such as strategically placed deep-water zones, to facilitate drainage for maintenance.(2) Plants selected for an FWS wetland cell shall be compatible with the water depths under all anticipated operational flow conditions.(f) Parallel trains. An FWS wetland must have parallel treatment trains to increase operational flexibility.(g) Wind protection. An FWS wetland cell must either be oriented to avoid prevailing winds perpendicular to the process flow direction, or must use elevated berms or vegetative windbreaks.(h) Inlets and Outlets.(1) The inlets and outlets of an FWS wetland cell must ensure uniform distribution of influent flow and uniform collection of effluent flow across the entire cell cross section.(2) An FWS wetland must have multiple inlet and outlet devices designed to minimize scouring of wetland substrate caused by locally high velocity effluent flow.(3) Each inlet and outlet device in an FWS wetland must be adjustable to allow variations in the operational water level.(4) Submergence. An FWS wetland inlet must be submerged under normal operational conditions.(5) Inspection and Cleaning. An FWS wetland must be designed to allow for the inspection and cleaning of inlet and outlet devices.(i) Organic Loading and Treatment Efficiency.(1) The design of an FWS wetland must be based on the design organic loading of the influent to the FWS wetland.(2) Organic removal efficiency for FWS wetlands must be calculated from the area-based loading rate equation found in Figure: 30 TAC §217.210(i)(2), unless the engineering report justifies an alternate method to determine the organic removal efficiency by identifying a method, the sources of the method, and all supporting calculations.Attached Graphic(j) Vector Control.(1) The design of an FWS wetland must include mosquito control by: (A) using mosquito fish (Gambusia spp.) or other natural predators; (B) maintaining aerobic conditions; or (C) using other biological controls.(2) A design must minimize the potential for damage to wetlands caused by mammals such as nutria and muskrats.</content><note type="source"><p>Source Note: The provisions of this §217.210 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scH/s217.211"><num value="217.211">§217.211</num><heading>Constructed Wetlands--Subsurface Flow System General Design</heading><content>(a) A wetted subsurface media must allow adequate root penetration. The type of subsurface media must be identified in the engineering report.(b) The operational water depth of a subsurface flow system (SFS) wetland must not exceed the lesser of: (1) 18 inches at design flow; or (2) the maximum normal root depth of the emergent plant species used in the SFS wetland.(c) Seasonal draw down of the water level must be performed to encourage deeper root penetration into the wetted media.(d) Plant spacing must be sufficient to allow maturity of a wetlands flora ecosystem, but must not exceed 36 inches on center.(e) Configuration. An SFS wetland must include the following minimum configuration standards: (1) Multiple cells. An SFS wetland must include multiple cells that can be operated independently, allowing individual cells to be removed from service while maintaining system operations.(2) Cell Size. SFS wetland cells must meet permit effluent limitations, even when any single cell is removed from service. (3) Hydraulic profile.(A) An SFS wetland must maintain between 6.0 inches and 9.0 inches of dry media cover at design flow. The wetland must have at least 2.0 inches of upstream media cover during peak flow conditions, and not more than 12.0 inches of upstream media cover during diurnal low flow conditions.(B) An SFS wetland hydraulic profile must be based on Figure 1: 30 TAC §217.211(e)(3)(B), unless an alternate design method is justified in the engineering report. The engineering report must include the method, the source of the method, and all supporting calculations and documentation.Attached GraphicAttached Graphic(4) Maximum depth. The maximum wetted media depth of an SFS wetland is the lesser of: (A) 24 inches at design flow; or (B) the maximum normal root depth for a planned primary population of emergent plant species.(5) Minimum slope. An SFS wetland cell must have an adequate bottom slope to facilitate drainage for maintenance and to maintain media water depth over the entire cell length under all operational flow conditions.(6) Parallel trains. An SFS wetland must have parallel treatment trains to increase operational flexibility.(f) Flow Distribution. An SFS wetland must be designed with effective flow distribution and collection by meeting the following standards for inlets and outlets, submergence, maintenance, and staged influent feed.(1) Inlets and Outlets.(A) The inlet and outlet system of an SFS wetland cell must ensure uniform distribution of influent flow and uniform collection of effluent flow across an entire cell.(B) The inlet and outlet devices of an SFS wetland cell must not cause locally high velocities that could result in movement of wetland media.(C) Each inlet and outlet system must be adjustable to allow variation in operational water level and flooding of a cell for weed control.(2) Submergence. Each inlet and outlet of an SFS wetland must be below the media surface.(3) Maintenance. Inlet and outlet devices must allow inspection, cleaning, and maintenance.(4) Staged influent feed. If an average influent five-day biochemical oxygen demand concentration greater than 200 milligrams per liter is anticipated, an SFS wetland must allow for staged influent feed to improve process control.(g) Organic Loading and Treatment Efficiency.(1) A constructed wetland process must be based on the design organic loading of the influent to the constructed wetland.(2) The design of an SFS wetland must be based on the organic removal treatment efficiency for an SFS wetland on Equation H.5. in Figure: 30 TAC §217.211(g)(2), unless an alternate method to determine the organic removal treatment efficiency is justified in the engineering report. The engineering report must include the method, the source of the method, and all supporting calculations.Attached Graphic(h) Temperature. An SFS wetland must be able to treat the wastewater treatment facility's wastewater at all water temperatures. (i) Vector Control. Vegetation maintenance, including removal of excessive plant litter and detritus, is required to limit mosquito production.(j) Media Design. SFS wetland media must meet the following minimum requirements. (1) The media must be hard rock, slag, or other clean, comparable media material.(2) The media must contain less than 0.1% by weight of clay, sand, and other fine materials.(3) The media materials must have a Mohs hardness of at least 5.0.(4) The media must be resistant to acidic conditions.(5) Synthetic media is a non-conforming or innovative technology and is subject to the requirements of §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals). (6) Media gradation and uniformity must be used to determine the SFS wetland's hydraulic conductivity.(7) The media must be placed in an SFS wetland by light-weight equipment to prevent introduction of clay or other undesirable materials, to avoid compaction, clogging of the media, and damage to the liner.(8) If an SFS wetland has gravel media larger than 1.5 inches in diameter, it must include a top layer of smaller gravel to encourage healthy plant rooting. The layer of smaller gravel must be above the normally saturated media zone. Also, an SFS wetland must include a transitional (medium grade) layer between small gravel and coarse gravel to minimize small gravel migration into lower void spaces.</content><note type="source"><p>Source Note: The provisions of this §217.211 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scH/s217.212"><num value="217.212">§217.212</num><heading>Overland Flow Process</heading><content>(a) An overland flow process is a non-conforming technology and is subject to the requirements of §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals).(b) The distribution system for an overland flow process must ensure uniform sheet flow of the wastewater onto and across the overland flow terraces.</content><note type="source"><p>Source Note: The provisions of this §217.212 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scH/s217.213"><num value="217.213">§217.213</num><heading>Integrated Facultative Lagoons</heading><content>(a) Non-conforming technology. An integrated facultative lagoon is a non-conforming technology and is subject to the requirements of §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals).(b) Integrated Facultative Lagoon Design.(1) The length-to-width ratio of an integrated facultative lagoon must be 3.0 to 1.0.(2) A pit must not be less than 0.25 acre in total surface area.(3) The outer lagoon area must not be less than 10 times the surface area of the pit.(4) A pit must have adequate volume to contain:(A) 0.1 cubic foot per capita per year of sludge storage for a minimum of 20 years; and(B) two days of design flow above the sludge storage area.(5) The up-flow velocity in the pit must be less than 2.0 feet per day at design flow.(6) If an integrated facultative lagoon has more than one pit, influent flow must be split proportional to the pit volumes.(7) An inlet must be located in the pit portion of a lagoon.(8) An outlet must be at a depth of 1.0 foot from the lagoon surface.(9) An integrated facultative lagoon must meet the buffer zone requirements specified in §309.13 of this title (relating to Unsuitable Site Characteristics).(10) Depth.(A) A pit must be at least 15 feet deep during normal operating conditions, measured from the water surface to the influent inlet point.(B) An integrated facultative lagoon must have berms around the pit.(C) The berm height must be at least 5.0 feet or one-half the depth of the outer lagoon, whichever is greater.(D) The distance from the water surface elevation during normal operating conditions to the top of the berm around a pit must be at least 5.0 feet.(11) Organic Loading. The organic loading into a pit must not exceed 300 pounds of five-day biochemical oxygen demand per acre of total lagoon area per day.(12) Odor Control.(A) An inlet to a pit must be 3.0 feet above the bottom of the lagoon and the influent flow must be directed downward.(B) An integrated facultative lagoon must be capable of recirculating at least 50% of the design flow from an outlet of the downstream lagoon.(C) Oxygenated water from a downstream stabilization lagoon must be recirculated to the surface of the integrated facultative lagoon.(D) An integrated facultative lagoon must prevent siphoning of lagoon contents through a submerged inlet.(13) Removal Efficiency.(A) The design of an integrated facultative lagoon must not be based on more than 60% organic removal efficiency in the pit.(B) The design of an integrated facultative lagoon must not be based on a subsequent organic removal efficiency of more than 50% in the outer portion of the integrated facultative lagoon.(C) The design organic removal efficiency for the entire integrated facultative lagoon must not exceed 80%.(14) Detention Time. An integrated facultative lagoon must provide a minimum of 21 days hydraulic retention time at design flow.</content><note type="source"><p>Source Note: The provisions of this §217.213 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c217/scJ"><num value="J">SUBCHAPTER J</num><heading>SLUDGE PROCESSING</heading><section identifier="/us/state/tx/tac/t30/p1/c217/scJ/s217.241"><num value="217.241">§217.241</num><heading>General Requirements</heading><content>(a) For purposes of this subchapter, sludge processing includes thickening, stabilization, and dewatering.(b) A design must base the selection and operation of the sludge processing units on the desired final sludge product.(c) A wastewater treatment facility that disposes of sludge under Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation) must stabilize the sludge according to the requirements of that chapter.(d) A wastewater treatment facility that disposes of sludge under Chapter 330 of this title (relating to Municipal Solid Waste) must comply with the requirements of that chapter.</content><note type="source"><p>Source Note: The provisions of this §217.241 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scJ/s217.242"><num value="217.242">§217.242</num><heading>Control of Sludge and Supernatant Volumes</heading><content>(a) Supernatant, filtrate, or centrate resulting from sludge processing must be returned to the headworks of the wastewater treatment facility, the influent lift station, or to a point preceding an aeration system or secondary treatment unit.(b) A sludge processing unit must limit digester supernatant liquor volume to the greatest extent practicable.(c) Returned supernatant, filtrate, or centrate from a sludge processing unit must not interfere with wastewater treatment processes in another treatment unit.</content><note type="source"><p>Source Note: The provisions of this §217.242 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scJ/s217.243"><num value="217.243">§217.243</num><heading>Sludge Pipes</heading><content>(a) Each pipe associated with a sludge processing unit must have a slope that ensures the flow of sludge.(b) A pipe under a stationary structure must allow a blockage to be easily eliminated by rodding or a sewer-cleaning device.(c) A gravity pipe must have uniform grade and alignment.(d) The slope of a gravity discharge pipe must not be less than 3.0%.(e) The minimum diameter for a pipe associated with sludge processing is shown in Figure: 30 TAC §217.243(e):Attached Graphic(f) The available head on a discharge using a gravity withdrawal pipe must be at least 4.0 feet.(g) A gravity withdrawal pipe from a clarifier must allow for the removal of sludge.(h) Each sludge pipe must include a means to observe the quality of the supernatant from each of the withdrawal outlets.(i) Each individual sludge processing unit must have a dedicated means of dewatering.(j) Pipes located inside a digestion tank must be designed for use in corrosive environments and must be sufficiently supported to prevent damage to the pipe or adjacent equipment.(k) A sludge pipe must not contain any bends that form an acute angle with the pipe.</content><note type="source"><p>Source Note: The provisions of this §217.243 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scJ/s217.244"><num value="217.244">§217.244</num><heading>Sludge Pumps</heading><content>(a) A sludge transfer pump size must be based on the quantity and character of the solids load.(b) A mechanical pumping system must provide the required firm pumping capacity with the largest sludge pumping unit out of service.(c) A centrifugal sludge pump must have a positive suction head, unless the pump includes a priming device.(d) A positive displacement pump or other type of pump must have demonstrated solids handling capability for handling sludge.(e) A positive suction head of 24 inches or more is required for all sludge pumps.(f) An air lift pump may be used as a sludge pump, and must comply with requirements of §217.162 of this title (relating to Air Lift Pump Design).</content><note type="source"><p>Source Note: The provisions of this §217.244 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scJ/s217.245"><num value="217.245">§217.245</num><heading>Exclusion of Grit, Grease, and Debris from Sludge Processing Units</heading><content>(a) A wastewater treatment facility must minimize the amount of grit, debris, oil, and grease entering a sludge processing unit.(b) A sludge processing unit must be designed for the final use or final disposal of the various solids generated during the treatment of domestic sewage.(c) If sludge will be land applied, a sludge processing unit must remove and separately dispose of debris, grit, and grease before land application of the sludge.</content><note type="source"><p>Source Note: The provisions of this §217.245 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scJ/s217.246"><num value="217.246">§217.246</num><heading>Ventilation and Odor Control</heading><content>(a) A design must include sufficient ventilation to eliminate an accumulation of fumes or gases at a level that could adversely impact human health, safety, welfare, or the environment.(b) An enclosed area that is accessible to individuals must have automatic mechanical ventilation. Automatic mechanical ventilation consists of:(1) a continuous ventilation system that provides at least one complete air exchange every 10 minutes; or(2) an intermittent ventilation system that provides at least one complete air exchange every two minutes.(c) A sludge processing unit must prevent nuisance odors.</content><note type="source"><p>Source Note: The provisions of this §217.246 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scJ/s217.247"><num value="217.247">§217.247</num><heading>Chemical Pretreatment of Sludge</heading><content>(a) All chemicals used to treat sludge must be compatible with the operation of the sludge processing unit and must not adversely affect any other treatment unit or the receiving waters.(b) The engineering report must justify appropriate chemicals and feed ranges. A pilot plant study or data from a treatment unit must be used. The organic, metal, and hydraulic loadings at the pilot plant must be within 25% of the design organic, metal, and hydraulic loadings.(c) Each chemical must be handled, stored, and disposed of according to its safety data sheet.(d) A liquid chemical storage tank must have:(1) a liquid level indicator; and(2) an emergency overflow receiving basin or drain capable of retaining any spill.(e) Powdered activated carbon must be stored in an isolated fireproof area.(f) A storage or handling area where potentially volatile chemicals are present must have electrical outlets, lights, and motors that meet the National Fire Protection Association 70 National Electrical Code® in effect at the time the storage or handling area was constructed, including explosion prevention requirements.(g) Systems for transport, transfer, storage, and use of any volatile chemical must prevent volatile chemicals from discharging to the atmosphere.(h) A wastewater treatment facility must have at least a 30-day supply of each chemical in dry storage conditions, unless the engineering report justifies a reduced amount.(i) A solution storage tank or direct-feed day tank must have sufficient capacity for operation at the design flow of the wastewater treatment facility.(j) The procedures for measuring the quantity of each chemical used to prepare each feed solution must be included in the wastewater treatment facility's operation and maintenance manual.(k) A chemical storage tank, pipe, or other equipment must be compatible with the chemical it is designed to handle.(l) Chemicals must only be combined in a feed solution. Intermixing of chemicals prior to preparing a feed solution is prohibited.(m) Concentrated liquid acid must not be stored in an open vessel, and must be pumped in undiluted form from the original container to a point of treatment, to an enclosed acid-resistant day tank, or to an enclosed acid resistant storage tank.(n) Concentrated liquid acid must be kept in a closed, acid-resistant shipping container or storage unit.(o) The transfer of a toxic material must be controlled by an actuating device.(p) A wastewater treatment facility must have one or more of the following control methods to ensure that dust will be minimized during the transfer of a dry chemical:(1) a closed conveyor system with vacuum pneumatic equipment;(2) a facility for emptying shipping containers in a special enclosure; or(3) an exhaust fan and dust filter that uses a hopper or bin under negative pressure to eliminate chemical particles in the air.(q) Disposing of a chemical or an empty chemical container must be done in a manner that minimizes the potential for harmful exposure and in compliance with Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste).(r) A chemical delivery system must meet the following requirements:(1) Structures housing equipment.(A) A floor surface must be smooth, slip resistant, impervious, and must have a minimum slope of 1/8 inch per foot.(B) An open basin, tank, or conduit must be protected from a chemical spill or accidental drainage.(C) An area that houses a chemical delivery system must provide access for servicing, repair, and observation of operations.(2) Redundancy. A chemical delivery system must have at least two feeders and must be able to supply the amount of chemicals needed for process reliability throughout the feed range. Chemical delivery equipment must be able to maintain operation at design flow with the largest operational unit out of service.(3) Design and Capacity.(A) A chemical delivery system must be able to deliver a proportional amount of chemical feed based on the rate of flow.(B) A chemical delivery system must not use positive displacement type solution feed pumps to feed chemical slurries, unless the engineering report justifies such use.(C) If using potable water, the potable water supply must be protected by at least the equivalent of two backflow preventers, including at least one air gap between a supply pipe and a solution tank.(D) A chemical delivery system component must be resistant to the chemical it is designed to apply.(E) A dry chemical delivery system must:(i) measure the chemical volumetrically or gravimetrically;(ii) provide effective mixing and solution of the chemical in a solution pot;(iii) provide gravity feed from a solution pot;(iv) completely enclose chemicals; and(v) prevent emission of dust to the operation room.(4) Spill Containment. The chemical delivery equipment must have protective curbing to contain a chemical spill.(5) Control Systems.(A) All chemical delivery systems must have an automatic control system that is capable of manual control.(B) A chemical delivery system must have manual starting equipment.(C) A chemical delivery system may be designed with an automatic chemical dose or residual analyzer.(D) If an automatic chemical dosing or residual analyzer is used, the design must require both recording charts and an alarm for any critical value.(6) Weighing Scales. A volumetric dry chemical feeder or a non-volumetrically calibrated carboy must have weighing scales that measure in increments of no greater than 0.5% of the load.(7) Chemical Delivery System Protection. A chemical delivery system must have freeze protection and must be accessible for cleaning.(8) Water Supply.(A) A water supply for chemical mixing may be potable water or reclaimed water.(B) A chemical delivery system must protect its water supply from contamination. If using potable water, the potable water supply must be protected by at least the equivalent of two backflow preventers, including at least one air gap between a supply pipe and a solution tank.(C) A water supply must have sufficient pressure to ensure dependable operations.(D) A water supply must include a means for measuring solution concentrations.(E) A water supply design must include sufficient duplicate equipment to ensure process reliability.(F) A water supply design may include a booster pump to maintain water pressure.(9) Solution Tanks.(A) A solution tank must be able to maintain uniform strength of solution consistent with the nature of the chemical solution and must provide continuous agitation.(B) A chemical delivery system must have at least two solution tanks.(C) The solution tank(s) must provide storage for at least one full day of operation at design flow.(D) A solution tank must have a drain and a solution level indicator.(E) An intake point for potable water must have an air gap.(F) A chemical solution tank must be covered and have an access opening that is curbed and fitted with a tight cover.(G) Each subsurface solution tank must:(i) be impermeable;(ii) be protected against buoyancy;(iii) include a means to drain groundwater or other accumulated water away from the tank;(iv) include leak detection; and(v) allow for containment and remediation of any chemical spill.(H) An emergency overflow pipe must:(i) be turned downward;(ii) have an unobstructed discharge;(iii) be clearly visible;(iv) drain to a containment area; and(v) must not contaminate the wastewater or receiving stream.(10) Chemical Application.(A) A chemical application system must be efficient and operate safely.(B) The chemical application system must prevent backflow or back-siphoning between multiple points of feed through common manifolds.(C) The application of a pH-affecting chemical to the wastewater must be done before the addition of a coagulant.</content><note type="source"><p>Source Note: The provisions of this §217.247 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scJ/s217.248"><num value="217.248">§217.248</num><heading>Sludge Thickening</heading><content>(a) If a sludge thickening system is used, the following criteria are required:(1) Capacity. The maximum monthly sludge production rate must be used as the basis for sludge thickening system sizing and design.(2) Flexibility.(A) A sludge thickening system must have a bypass to the digester.(B) A wastewater treatment facility with a design flow greater than 1.0 million gallons per day must have:(i) at least two sludge thickening units;(ii) an alternate means of sludge thickening; or(iii) an alternate sludge disposal method.(b) Specific Requirements for a Mechanical Gravity Thickener.(1) Equipment Features.(A) A mechanical gravity thickener must have:(i) a low-speed stirring mechanism for continuous mixing and flocculation;(ii) sufficient sludge storage, or sufficient additional storage in other external tanks; and(iii) a means of controlling the rate of sludge withdrawal.(B) A mechanical gravity thickener must use either a chemical addition or dilution water feed system.(C) A scraper mechanical train must be capable of withstanding any expected torque load. The working torque load must not exceed 10% of the manufacturer's recommended torque load.(2) Design Basis.(A) The design of a mechanical thickener must be justified in the engineering report.(B) The executive director may require data from a pilot study or similar mechanical gravity thickener operating under similar conditions.(C) The mechanical gravity thickener surface loading rate must be at least 400 gallons per day per square foot, but not more than 800 gallons per day per square foot.(D) The minimum side water depth for a mechanical gravity thickener is 10 feet.(E) A circular mechanical gravity thickener must have a minimum bottom slope of 1.5 inches per foot.(F) The peripheral velocity of a scraper must be at least 15 feet per minute but no more than 20 feet per minute.(G) A mechanical gravity thickener must prevent short-circuiting.(c) Specific Requirements for a Dissolved Air Flotation (DAF) Basin.(1) Equipment Features.(A) A DAF basin must have a bottom scraper that functions independently of the surface skimmer.(B) A recycle pressurization system for a DAF basin must use effluent instead of potable water.(C) A DAF basin must have a polymer feed system that meets the requirements of §217.247(r) of this title (relating to Chemical Pretreatment of Sludge).(D) A DAF basin must be located in a covered building with positive air ventilation.(2) Design Basis.(A) The design of a DAF basin must be justified in the engineering report.(B) The executive director may require data from a pilot study or similar DAF basin operating under similar conditions.(C) The hydraulic loading rate must not exceed 2.0 gallons per minute per square foot.(D) The solids loading rate must be at least 1.0 pound per hour per square foot, but not more than 4.0 pounds per hour per square foot.(E) The air to solids weight ratio must be at least 0.02, but not more than 0.04.(F) A retention tank system must have a minimum pressure of 40 pounds per square inch, gauge.(G) A skimmer must have multiple or variable speeds that allow an operational range of at least 1.0 foot per minute, but not more than 25.0 feet per minute.(d) Specific Requirements for a Centrifugal Thickener.(1) The design of a centrifugal thickener must be justified in the engineering report.(2) The executive director may require data from a pilot study or data from a similar centrifugal thickener operating under similar conditions.(3) A centrifugal thickener must be preceded by pretreatment to prevent plugging of a nozzle or excessive wear in the bowl.(4) The centrate is subject to the requirements of §217.242 of this title (relating to Control of Sludge and Supernatant Volumes).(e) Specific Requirements for a Gravity Belt Thickener.(1) Equipment Features.(A) A gravity belt thickener must include a wash water system capable of providing 60 gallons per minute of flow per meter of belt width at a pressure of at least 60 pounds per square inch. Booster pumps may be used.(B) A gravity belt thickener must include a polymer feed system that meets the requirements of §217.247(r) of this title.(C) A filtrate drainage system must be sized to remove the full hydraulic capacity of a gravity belt thickener without accumulation or ponding of filtrate.(2) Design Basis. Unless otherwise justified in the engineering report, gravity belt thickener sizing must be based upon:(A) a maximum solids loading of 1,250 pounds per meter of belt width; or(B) a maximum hydraulic loading of 250 gallons per minute per meter of belt width.(3) Gravity belt thickener filtrate is subject to the requirements of §217.242 of this title.</content><note type="source"><p>Source Note: The provisions of this §217.248 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scJ/s217.249"><num value="217.249">§217.249</num><heading>Sludge Stabilization</heading><content>(a) Design Requirements. The design requirements for the stabilization processes in this section are based on only one stabilization process being used at the wastewater treatment facility.(b) Variance. An owner must request a variance in accordance with §217.4 of this title (relating to Variances) if a design includes a series of two or more stabilization processes. Any deviations from the requirements of this section must be documented in the variance request.(c) Anaerobic Digestion.(1) A wastewater treatment facility with a design flow exceeding 0.4 million gallons per day must have at least two anaerobic digesters.(2) Anaerobic digesters may be operated in series or in parallel. Each anaerobic digester may be used for treating sludge from both primary and secondary clarifiers.(3) Each anaerobic digester must have a means for transferring a portion of its contents to another anaerobic digester.(4) A wastewater treatment facility that has been granted a variance to operate without multiple anaerobic digesters must have an emergency storage basin for storing sludge during times when the anaerobic digester needs to be taken out of service.(d) Depth. An anaerobic digester must provide a minimum of 6.0 feet of storage depth for supernatant liquor.(e) Maintenance Provisions. A digester design must allow access to each unit for maintenance.(f) Digester Configuration.(1) The bottom of a digester must slope towards a drainpipe. (2) A flat-bottomed digestion chamber is prohibited.(g) Access Manholes.(1) The top of a digester must have at least two access manholes and a gas dome.(2) One manhole must have a sufficient diameter to permit the use of mechanical equipment to remove grit and sand.(3) A digester system must have a separate sidewall manhole at ground level.(h) Safety.(1) The wastewater treatment facility operation and maintenance manual must require the use of non-sparking tools, rubber soled shoes, a safety harness, and gas detectors for flammable and toxic gases when working in a digester.(2) At least one self-contained breathing apparatus must be maintained in operational condition and kept on site.(i) Sludge Inlets and Outlets. To facilitate effective mixing of the digester contents a digester must have: (1) multiple sludge inlets located to prevent short-circuiting and at least one inlet located in the center of the digester above the liquid level at design flow; (2) at least three recirculation sections; and (3) at least three outlets.(j) Digester Capacity.(1) The digester capacity must be calculated using the expected volume and character of the sludge. The engineering report must include the calculations used to justify the design.(2) The total digester volume must be based upon: (A) the volume of sludge added; (B) the percent solids and character of the sludge; (C) the temperature to be maintained in the digester; (D) the degree or extent of mixing to be obtained; and (E) the size of the installation with appropriate allowance for sludge and supernatant storage.(3) A digester must be able to maintain a minimum sludge digestion temperature of 35 degrees Celsius, plus or minus 4 degrees.(4) Sludge that will be disposed of in a landfill must undergo at least 15 days of digestion for stabilization in the primary digester. Sludge that will be land-applied must undergo at least 60 days of digestion for stabilization, or the period required to achieve the necessary level of pathogen control and vector attraction reduction as required by Chapter 312, Subchapter D of this title (relating to Pathogen and Vector Attraction Reduction), whichever is less.(5) A Completely Mixed System.(A) A digester must have an average feed loading rate of less than 200 pounds of volatile solids per 1,000 cubic feet of volume per day in the active digestion volume.(B) Complete mixing in 30 minutes or less is required for: (i) a confined mixing system, if gas or sludge flow is directed through a vertical channel; (ii) a mechanical stirring or pumping system; and (iii) an unconfined continuously discharging gas mixing system.(C) A digester tank over 60 feet in diameter must have multiple mixing devices.(D) The minimum gas flow supplied for complete mixing must be 15 cubic feet per minute per 1,000 cubic feet of digestion volume.(E) A complete mixing system must have a flow-measuring device and a throttling valve.(F) The minimum power supply for a mixing system is 0.5 horsepower per 1,000 cubic feet of digestion volume.(6) Moderately Mixed Systems.(A) A digestion system where mixing is accomplished only by circulating sludge through an external heat exchanger must be loaded at less than 40 pounds of volatile solids per 1,000 cubic feet of volume per day in the active digestion volume. A design must be based on the volatile solids loading in accordance with the degree of mixing.(B) The engineering report must include a justification for the loading rates, if mixing is accomplished by another method.(k) Gas Collection, Pipes, Storage, and Appurtenances.(1) General Requirements. Each portion of a gas system must maintain positive gas pressure under all normal operating conditions, including sludge withdrawal.(2) Safety Equipment.(A) A gas system must include a pressure valve, vacuum relief valve, a flame trap, and an automatic safety shut-off valve.(B) Installation of water seal equipment on a gas pipe is prohibited.(3) Gas Pipes and Condensate.(A) A gas pipe system must be designed for the volume of gas expected.(B) A gas pipe must be pressure tested for leakage at 1.5 times the design pressure before a digester is placed into service.(C) A gas pipe must slope at least 1/8 inch per foot to drain condensate.(D) The main gas pipe from a digester must have a sediment trap and a drip trap.(E) Float controlled condensate traps are prohibited.(F) A condensation trap must be accessible for daily servicing and draining.(G) A drip trap must be located at each low point in the pipes.(H) A gas pipe to each gas outlet must have a flame check or a flame trap.(I) A burner pilot must use natural or bottled gas.(J) Each main gas pipe must have a flame trap with a fusible shut-off.(K) A gas pipe to a waste gas burner must have a pressure valve and a vacuum relief valve.(4) Electrical Fixtures and Equipment. The electrical equipment near sludge digester pipes containing gas must be designed to prevent potentially explosive conditions.(l) Waste gas.(1) A waste gas burner must be accessible for inspection and maintenance and must be located at least 50 feet away from any structure, if placed at ground level.(2) A waste gas burner may be located on the roof of the control building.(3) A waste gas burner must not be located on top of a digester.(4) A discharge of less than 100 cubic feet per hour of digester gas through a return bend screened vent with a flame trap terminating at least 10 feet above a walking surface is allowed.(m) Ventilation.(1) An underground enclosure connected to an anaerobic digester tank, gas pipe, or sludge equipment must have forced ventilation in accordance §217.246 of this title (relating to Ventilation and Odor Control).(2) An underground enclosure must have a tight-fitting, self-closing door to minimize the spread of gas.(n) Gas Meter.(1) An anaerobic digester system must have a gas meter to measure total gas production.(2) A meter must have a bypass.(o) Manometer.(1) A gas manometer must have a tight shut-off vent and vent cock.(2) A vent pipe must be extended from a manometer to the outside of the building.(3) A vent pipe opening must have a screen and be designed to prevent the entrance of rainwater.(4) A manometer design must specify all safety devices that are needed for a manometer pipe system and must list the safety items in the engineering report.(p) Gas Piping. The gas piping for an anaerobic digester must be equipped with gauges that measure the following in inches: (1) the pressure of the main pipe; (2) the pressure to gas-utilization equipment; and (3) the pressure to waste burners.(q) Digestion Temperature Control.(1) Passive Temperature Control.(A) A digester must be constructed above the shallowest groundwater table, including any perched water tables.(B) A digester must be insulated to minimize heat loss.(2) Heating Facilities.(A) The sludge must be heated by circulating the sludge through an external heater.(B) A piping system must allow for the preheating of feed sludge before introduction to the digesters, unless effective mixing is provided within a digester.(C) A pipe and valve layout must facilitate cleaning.(D) The size of a heat exchanger sludge pipe must be based on the heat transfer requirements.(3) Heating Capacity.(A) A digester system must have the heating capacity to maintain the temperature required for sludge stabilization established in subsection (j)(3) of this section.(B) A digester system must be able to use an alternate source of fuel and must have an alternate source of fuel available for emergency use.(4) Mixing. A digester system must have equipment to mix the sludge.(5) Location of a Sludge Heating Device. A sludge heating device with an open flame must be located above grade and in an area separate from gas production and any storage area.(r) Supernatant Withdrawal.(1) Pipe Size. The minimum diameter for a supernatant pipe is 6.0 inches.(2) Withdrawal Arrangements.(A) The supernatant pipes must be arranged to allow withdrawal from three or more levels in a tank.(B) A supernatant selector must have at least two draw-off levels located in the digester's supernatant zone, in addition to an unvalved emergency supernatant draw-off pipe.(C) A supernatant withdrawal system must have a positive, unvalved, vented emergency overflow. The engineer must specify where overflow is routed in the engineering report.(D) A supernatant withdrawal level design must be based on a fixed cover digester design.(E) Supernatant withdrawal must be by means of interchangeable extensions at the discharge end of a withdrawal pipe.(F) A supernatant piping system must have high-pressure backwash equipment.(3) Sampling.(A) A supernatant pipe must have sampling points at each supernatant draw-off level.(B) The minimum diameter for a sampling pipe is 1.5 inches.(4) Supernatant Handling.(A) The engineering report must include how the treatment units are designed to handle shock organic loads associated with digester supernatant.(B) Supernatant liquor from an anaerobic digester must either be returned directly to the headworks of the wastewater treatment facility for treatment, or may be chemically treated before being returned to the headworks for treatment. Any other method of treating supernatant liquor must be approved in writing by the executive director. (C) If treating the supernatant liquor with lime, each of the following requirements must be met: (i) Lime must be applied to obtain a pH of at least 11.5 standard units.(ii) A lime feeder must be capable of feeding 2,000 milligrams per liter of hydrated lime or its equivalent.(iii) Lime must be mixed with the supernatant liquor by a rapid mixer or by agitation with air in a mixing chamber.(iv) After adequate mixing, the solids must be allowed to settle.(D) A supernatant liquor treatment system may be either a batch or a continuous process.(i) A batch process may have both the mixing and the settling processes in the same tank.(ii) A sedimentation tank for a batch process must have the capacity to hold at least 36 hours of supernatant liquor at design flow, but not less than 1.5 gallons per capita based on the design population of the service area.(iii) A sedimentation tank for a continuous process must have a detention time of not less than 8.0 hours.(E) The solids from the supernatant liquor treatment must be returned to a digester or conveyed to a sludge handling unit.(F) The clarified supernatant liquor must be returned to the headworks of the wastewater treatment facility in accordance with §217.242 of this title (relating to Control of Sludge and Supernatant Volumes).(s) Anaerobic Digester Covers.(1) An uncovered anaerobic digester is prohibited.(2) The sludge and supernatant withdrawal pipes for a single-stage or a first-stage digester with a fixed cover must be arranged to minimize the possibility of air being drawn into a gas chamber above the liquid in a digester.(3) A digester cover must include a gas chamber.(4) A digester cover must be gas tight. The specifications must include a test of each digester cover for gas leakage.(5) A digester cover must be equipped with an air vent with a flame trap, a vacuum breaker, and a pressure relief valve.(t) Aerobic Sludge Digestion. This subsection applies to the stabilization by aerobic digestion of waste sludge to Class B biosolids, as defined in Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation).(1) Solids Management. The engineering report must include a solids management plan.(2) Detention Time. The design temperature of an aerobic digester system must be based on the average of the lowest consecutive seven-day water temperature from an aerobic digester at a wastewater treatment facility located within 50 miles of the proposed site.(3) Mass Balance Requirements. Mass balance calculations must be included in the engineering report. The mass balance calculations must take into account design sludge age, wastestream concentration, operational hours, operational volume in the tanks, decant or dewatering volumes and characteristics, time needed for decanting or dewatering, and the volume needed for storage and sampling.(4) Single Stage. Single stage aerobic digestion consists of utilizing one tank operating in continuous-mode-no-supernatant removal, continuous-mode-feeding-batch removal, or other mode detailed in a solids management plan.(A) The size of an aerobic digester must be based on the minimum total detention time for the water temperature in the table located in subparagraph (B) of this paragraph based on Chapter 312 of this title and 40 Code of Federal Regulations Part 503.(B) The digester size must be sufficient to provide both the detention time in the following table and to provide for the mass load received by the unit:Attached Graphic(5) Multiple Stage. Multiple stage aerobic digestion consists of two or more completely mixed digesters operating in series.(6) Field Data.(A) Any increase in flow or organic loading, or any change in process requires new testing and verification of time and temperature operating parameters.(B) An expansion of an existing wastewater treatment facility may be designed and operated according to previously established time and temperature operating parameters.(C) The executive director may re-rate a wastewater treatment facility under Subchapter B of this chapter (relating to Wastewater Treatment Facility Design Requirements), if an owner requests a re-rating and submits sufficient supporting data.(7) Design Requirements.(A) The maximum solids concentration used to calculate the total detention time for an aerobic digester that concentrates the waste sludge only in a digester tank must be 2.0% solids concentration, unless:(i) supporting data is submitted in the engineering report to increase the solids concentration to 3.0%; or (ii) a higher concentration is justified by the use of a sludge thickening unit upstream of a digester.(B) A diffuser must be designed to minimize clogging.(C) A diffuser must be removable without dewatering a tank for inspection, maintenance, and replacement. Removable diffusers are not required if the wastewater treatment facility is designed with a redundant basin.(D) The volatile solids loading rate must be designed to be at least 100 pounds but not more than 200 pounds of volatile solids per 1,000 cubic feet per day, unless otherwise justified in the engineering report.(E) The dissolved oxygen concentration maintained in the liquid in an aerobic digester must be at least 0.5 milligrams per liter.(F) If mechanical aerators are used, the energy input for mixing must be at least 0.5 horsepower per 1,000 cubic feet.(G) If diffused air mixing is used, the energy input for mixing must be at least 20 standard cubic feet per minute per 1,000 cubic feet of aeration tank.(H) An aerobic digester must be able to separate and withdraw solids, or must decant the supernatant.(u) Heat Stabilization.(1) The design of a heat treatment system must be based on the anticipated sludge flow, sludge characteristics, and sludge concentration.(2) A heat treatment system must operate continuously to minimize the additional heat input necessary to start up the system, unless justified in the engineering report.(3) A heat treatment system must have multiple units, unless storage or an alternate stabilization method is available.(4) A single unit heat treatment system must have a standby grinder, a fuel pump, an air compressor, and dual sludge pumps.(5) The engineering report must identify the expected downtime for maintenance and repair, based on data from a comparable wastewater treatment facility.(6) The engineering report must include a design for adequate storage for process feed and downtime.(7) A heat treatment system must provide heat stabilization in a reaction vessel: (A) at a minimum of 175 degrees Celsius (350 degrees Fahrenheit) for 40 minutes, but not more than 205 degrees Celsius (400 degrees Fahrenheit) for 20 minutes and at a pressure of not less than 250 pounds per square inch, gauge, but not more than 400 pounds per square inch, gauge; or (B) provide for pasteurization at temperatures of 30 degrees Celsius (85 degrees Fahrenheit) or more and gauge pressure of more than 1.0 standard atmosphere (14.7 pounds per square inch) for a period of at least 25 days.(8) A heat treatment system must have a sludge grinder to protect a heat exchanger from damage or clogging caused by rags or other debris.(9) A heat treatment system must include an acid wash or high-pressure water wash system to remove scale from heat exchangers and reactors.(10) A decant tank must have a sludge scraper mechanism and must be covered.(11) A heat exchanger must be constructed of corrosion-resistant material.(12) A heat treatment system must have a continuous temperature recorder.(v) Recycle Loads.(1) The engineering report must identify a method of treatment for the recycle stream from the heat treatment system.(2) A recycle stream must not impact effluent quality or the wastewater treatment facility's treatment processes.(w) Alkaline Stabilization.(1) Design Basis.(A) Alkaline Dosage. The engineering report must include the calculation of the alkaline dosage required to stabilize sludge based on the type of sludge, chemical composition of sludge, and the solids concentration in the sludge. Performance data taken from a pilot test program or from a comparable wastewater treatment facility must be used to determine the proper dosage.(B) Temperature, pH, and Contact Time. An alkaline stabilization system must uniformly mix an alkaline additive-sludge mixture to maintain the pH, temperature, and contact time, as specified in §312.82 of this title (relating to Pathogen Reduction) and §312.83 of this title (relating to Vector Attraction Reduction).(2) Reliability.(A) An alkaline stabilization system must have multiple units, unless storage or an alternate stabilization method is available to continue operations when a unit is not in service.(B) A single unit that has adequate storage or an alternate stabilization method must have a standby conveyance and mixer, a backup heat source, and dual blowers.(C) A design must include: (i) the expected downtime for maintenance and repair based on data from a comparable wastewater treatment facility; and (ii) adequate storage for process, feed, and downtime.(3) Alkaline Stabilization Housing Unit.(A) A housing unit must meet the requirements in §217.247(r)(1) of this title (relating to Chemical Pretreatment of Sludge).(B) A housing unit must have mechanical or air agitation to ensure uniform discharge from the storage bins.(4) Feeding Equipment.(A) The alkaline additive feeding equipment must meet the requirements of §217.247(r)(1) of this title.(B) Hydrated lime must be fed as a slurry consisting of at least 6% calcium hydroxide (Ca(OH)2) by weight but not more than 18% Ca(OH)2 by weight, unless otherwise justified in the engineering report.(C) The engineering report must identify a means for controlling the feed rate of any other dry additive.(5) Mixing Equipment.(A) An additive and sludge blending or mixing vessel must be large enough to hold the mixture for a minimum of 30 minutes at the maximum feed rate.(B) A batch process must maintain a pH greater than 12 standard units in a mixing tank during the blending period.(C) A continuous flow process must maintain a pH greater than 12 standard units in an exit pipe.(D) A continuous flow process must be designed for a detention time that is the tank volume divided by the volumetric input flow rate.(E) A slurry mixture may be mixed with either a diffused air mixer or a mechanical mixer.(F) The mixing equipment must maintain an alkaline slurry mixture in complete suspension.(G) If using a diffused air mixer, the following requirements apply: (i) a coarse bubble diffuser must have a minimum air supply of 20 standard cubic feet per minute per 1,000 cubic feet (cf) of tank volume; and(ii) a mixing tank must be ventilated and include odor control equipment.(H) If using a mechanical mixer, the following requirements apply: (i) a mechanical mixer must provide at least 5.0 horse power per 1,000 cf of tank volume but not more than 10 horse power per 1,000 cf of tank volume; and (ii) the impellers must minimize debris fouling in the sludge.(6) Detention Time. A pasteurization vessel must provide a minimum detention period of 30 minutes.(7) External Heat. The engineering report must include specifications about any supplemental external heat necessary for sludge stabilization.</content><note type="source"><p>Source Note: The provisions of this §217.249 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scJ/s217.250"><num value="217.250">§217.250</num><heading>Sludge Dewatering</heading><content>(a) The engineering report must include a justification for the proposed sludge dewatering units, including design calculations, results from any pilot studies, all assumptions, and appropriate references. (b) The design of a dewatering unit must be based on mass balance principles.(c) General Requirements.(1) Centrate or Filtrate Recycle.(A) The drainage from beds and centrate or filtrate from dewatering units must be returned to the headworks of the wastewater treatment facility for treatment.(B) The design of a treatment unit downstream from a dewatering unit must be based on the organic load from the centrate or filtrate recycle.(2) Sludge with Industrial Waste Contributions. A dewatering system must prevent the release of any constituent (such as a free metal, an organic toxin, or a strong reducing or oxidizing compound) that adversely impacts human health, safety, or welfare, water quality, or compliance with the associated wastewater permit.(3) Redundancy.(A) A mechanical dewatering system must have at least two dewatering units, unless the engineering report justifies adequate storage or an alternative means of sludge handling.(B) Mechanical dewatering units must be able to dewater the average daily sludge flow with the largest dewatering unit out of service.(4) Storage Requirements.(A) A mechanical dewatering system must have separate storage if the equipment will not operate on a continuous basis and the wastewater treatment facility has no digesters with built-in short-term storage.(B) In-line storage of stabilized or unstabilized sludge must not interfere with any treatment unit.(C) The separate sludge storage from a primary digester must be aerated and mixed to prevent nuisance odor conditions.(5) Sampling Points. A dewatering system must have sampling stations before and after each dewatering unit and must allow periodic evaluation of the dewatering process.(6) Maintenance. Each dewatering system unit must have a bypass to allow for maintenance, repair, and replacement. The engineer must specify where the bypass flow will be routed in the engineering report.(d) Sludge Conditioning.(1) The design and location of a chemical addition point must consider interactions of the chemical with other chemicals and processes used in the wastewater treatment facility. (2) A dewatering system must provide adequate mixing time for the reaction between an additive and the sludge. Any subsequent handling must eliminate floc shearing.(3) The engineering report must include a pilot plant or full-size performance data used to determine the characteristics and design dosage of any sludge additive.(4) The engineering report must justify the in-stream flocculation and coagulation system design by including comparable performance data or pilot plant data.(5) The engineering report must include whether the mixers require conditioning tanks.(6) The engineering report must include calculations for a range of detention times.(7) Solution storage capacity, at maximum chemical demand, must be based on:(A) the amount of chemical needed per shift for continuous processes; or (B) the amount of chemical needed for a full batch for intermittent and batch processes.(8) Solution storage capacity may be reduced if the specific chemical or additive selected is adversely affected by storage.(9) The engineering report must justify any storage volume reduction and any other method used to ensure a continuous supply of chemicals by accounting for chemical use through a full operating day or a full batch.(e) Sludge Drying Beds.(1) The size of sludge drying beds must be based on data from a similar wastewater treatment facility in the same geographical area with the same influent sludge characteristics.(2) If the data required by paragraph (1) of this subsection is not available, or if the executive director determines that the data is not appropriate for a proposed wastewater treatment facility, the design of sludge drying beds must be based on the following: (A) Open Beds.(i) A sludge drying bed system must have at least two sludge drying beds.(ii) The engineering report must include the calculation of the minimum surface area for a sludge drying bed using the values in the following figure for an area of the state with less than 45 inches annual average rainfall or less than 50% annual average relative humidity, as determined by data from the nearest National Oceanic and Atmospheric Administration's weather station that has at least ten years of data. The entire period of record for the weather station must be used.Attached Graphic(iii) Another method of sludge dewatering is required in lieu of a sludge drying bed in an area of the state that experiences either 45 or more inches of average annual rainfall or 50% or greater annual average relative humidity, as determined by data from the nearest National Oceanic and Atmospheric Administration's weather station that has at least ten years of data. The entire period of record for the weather station must be used.(iv) A sludge drying bed system must: (I) dewater sludge during normal operations; (II) provide accelerated sludge dewatering during abnormally wet conditions; (III) store accumulated sludge during periods of extended high humidity and rainfall;(IV) use an alternative dewatering method to dewater the sludge during periods of extended high humidity and rainfall; and (V) prevent the unauthorized discharge of solids from the sludge drying beds.(v) The engineering report must justify the use of innovative or non-conforming sludge drying beds in high rainfall, high relative humidity areas of the state, as described in clause (iii) of this subparagraph.(B) Gravel Media Beds. A gravel media bed must be laid in two or more layers. The gravel around the underdrains must be properly sized to allow drainage. The gravel around the underdrains must be at least 12 inches deep, extending at least 6.0 inches above the top of the underdrains. The top layer of a gravel media bed must be at least 3.0 inches thick and must consist of gravel 1/8 inch to 1/4 inch in size.(C) Sand Media Beds. A sand media bed must consist of at least 12 inches of sand with a uniformity coefficient of less than 4.0 and an effective grain size of at least 0.3 millimeters but not more than 75 millimeters above the top of the underdrain.(D) Underdrains.(i) The underdrains must be at least 4.0 inches in diameter and a slope of at least 1.0% to the drain.(ii) The underdrains must not be spaced more than 20 feet apart.(iii) The engineering report must specify where the flow from the underdrains will be routed.(E) Decanting. A sludge drying bed may have a method of decanting supernatant installed on the perimeter of the bed. The decanted liquid from a sludge drying bed must be returned to the headworks of the wastewater treatment facility or to the beginning of the secondary treatment process.(F) Walls.(i) The interior walls of a sludge drying bed must be watertight and extend 12 inches to 24 inches above and at least 6 inches below the bed surface.(ii) The exterior walls of a sludge drying bed must be watertight and extend 12 inches to 24 inches above the bed surface or ground elevation, whichever is higher.(G) Sludge Removal.(i) A sludge drying bed system must be arranged to facilitate sludge removal.(ii) The sludge drying beds must have concrete pads for vehicle support tracks on 20 foot centers for all percolation type sludge beds.(H) Sludge Influent.(i) A sludge pipe to the sludge drying beds must terminate at least 12 inches above the surface of the media and be arranged so that the pipe drains to a sump that pumps to the headworks of the wastewater treatment facility or the influent lift station.(ii) A sludge discharge point must have a concrete splash plate.(I) Drying Bed Bottom.(i) The bottom of a sludge drying bed must consist of a layer of clayey subsoil having a thickness of a least 1.0 foot and a permeability of less than 1 × 10-7 centimeters per second.(ii) An impermeable concrete pad must be installed over a liner in locations where the groundwater table is within 4.0 feet of the bottom of the liner.(3) Innovative or Non-Conforming Sludge Drying Beds. The executive director will review any vacuum assisted sludge drying beds or other variations to the gravity drying bed concept as innovative and non-conforming technologies subject to §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals).(4) Rotary Vacuum Filtration.(A) Filtration Rate. The engineering report must justify the value calculated for the rates of filtering for various types of sludge with proper conditioning, using Table J.4. in Figure: 30 TAC §217.250(e)(4)(A).Attached Graphic(B) Duplicate Equipment. Unless two treatment trains are provided, a feed pump, a vacuum pump, and a filtrate pump must be provided in duplicate to allow equipment alternation. Spare filter fabric must be kept at the wastewater treatment facility, except when metal coil filters are used.(C) Filter Equipment. Parts that will get wet must be constructed of corrosion-resistant material. Drum and agitator assemblies must be equipped with variable-speed drives, and provisions must be made for adjusting the liquid level in the filtration system.(D) Pumps.(i) A vacuum pump with a capacity of at least 1.5 cubic feet per minute per square foot must be provided for metal-covered drums.(ii) A dry-type vacuum pump must have a vacuum receiver.(iii) A filtrate pump must have adequate capacity to pump the maximum amount of liquid to be removed from the sludge.(iv) Each filter must be fed by a separate feed pump to ensure a proper feed rate.(5) Centrifugal Dewatering.(A) The engineering report must justify the sizing and design of a centrifugation system. A centrifuge design must be based on performance data from a similar centrifuge when available. If no performance data is available, the results of a pilot or full-scale test must be used.(B) Selection of a material for a scroll must include consideration of the amount of grit expected in the sludge.(C) A centrifugation system must include adequate sludge storage, based on the disposal process.(D) Unless two treatment trains are provided, a centrifugation system must have the following spare equipment, including necessary connecting pipes and electrical controls: (i) drive motor; (ii) gear assembly; and (iii) feed pump.(E) A feed pump must have a variable speed drive.(F) Each centrifuge must have a separate feed system.(G) A centrifuge must be equipped for variable scroll speed and pool depth.(H) A centirugation system must have a crane or monorail for equipment removal and maintenance.(I) A centrifuge system must provide access for wash down of the interior of each centrifuge. (6) Plate and Frame Presses.(A) Sizing.(i) The design of a plate and frame press must be based on performance data developed from a plate and frame press of similar size with similar operational characteristics. If no performance data is available, the results of pilot scale tests or full-scale tests must be used.(ii) The design of a plate and frame press may be based on appropriate scale-up factors for full size designs if pilot scale testing is done in lieu of full-scale testing.(iii) The engineering report must justify the size of a plate and frame press.(B) Duplicate Equipment and Spare Parts. Unless multiple units are provided, a plate and frame press system must include the following spare equipment: (i) one duplicate feed pump; (ii) two extra plates, or at least one extra plate for every ten plates required for startup, whichever is greater; (iii) one complete filter fabric set; (iv) one closure drive system; (v) one air compressor; and (vi) one washwater booster pump.(C) Operational Requirements.(i) The filter feed pumps must be able to handle initial high volume flow, low pressure filling, and sustained periods of operating at 100 pounds per square inch to 225 pounds per square inch.(ii) A plate and frame press system may include an integral pressure vessel to produce initial high volume flow.(iii) A plate and frame press system may use operating pressures less than 225 pounds per square inch if the engineering report justifies the design operating pressure using actual performance data from a plate and frame press that processes similar sludge.(iv) A plate and frame press system may include provisions for sludge-cake breaking to protect or enhance down line processes.(D) Maintenance.(i) A plate and frame press system must have a crane or monorail capable of removing the plates.(ii) A plate and frame press system must have a high-pressure water or acid wash system to clean the filter.(7) Belt Presses.(A) Sizing.(i) Actual performance data developed from a wastewater treatment facility with similar operational characteristics must be used to size a belt press system. If pilot plant testing is performed in lieu of full-scale testing, appropriate scale-up factors must be used to develop a full-scale design.(ii) A belt press system must have a duplicate belt press, or another method of sludge processing or disposal that has been approved in writing by the executive director, if the design flow exceeds 4.0 million gallons per day.(iii) The engineering report must include all data used to size a belt press system.(B) Duplicate Equipment and Spare Parts. Unless multiple belt press units are provided, a belt press system must have the following spare equipment: (i) one duplicate feed pump;(ii) one washwater booster pump; (iii) one complete set of belts; (iv) one set of bearings for each type of press bearing; (v) one set of tensioning equipment; (vi) one set of tracking sensors; (vii) one set of wash nozzles; (viii) one doctor blade; and (ix) conditioning or flocculation drive equipment.(C) Conditioning. The engineering report must include the polymer selection methodology, account for sludge variability, and document the anticipated sludge loading to the belt press.(D) Sludge Feed.(i) The sludge must be fed at a relatively constant rate that does not interfere with polymer addition and belt press operation.(ii) The engineering report must include the range in feed rate variability.(iii) A belt press system may include grinders ahead of a flocculation system.(iv) The sludge feed must provide a method for uniform sludge dispersion on a belt.(v) A belt press system must use thickening of the feed sludge, unless the engineering report justifies separate thickening or dual purpose thickening.(E) Filter Press Belts.(i) A belt must have a variable speed drive.(ii) A belt press system must have belt tracking and tensioning equipment.(iii) The engineering report must justify the weave, material, width, and thickness of the belts.(F) Filter Press Rollers.(i) The rollers must have a protective finish.(ii) The maximum roller deflection and operating tension of the belt must be included in the engineering report to justify equipment selection.(iii) The roller bearings must be watertight and rated for a life of 100,000 hours.(G) Spray Wash System.(i) A belt press system must use high-pressure wash water for each belt.(ii) The design of a spray wash system must specify the operating pressure at the point of washwater discharge.(iii) A spray wash system must allow cleaning without interfering with the spray wash system operation.(iv) The engineering report must justify the nozzle and nozzle cleaning system selection.(v) A belt press system must have replaceable spray nozzles and spray curtains.(H) Maintenance Requirements.(i) A belt press system must have drip trays under the belt press and under the thickener when gravity belt thickening is employed.(ii) The side and floor of a belt press must have adequate clearance for maintenance and removal of the dewatered sludge.(iii) An electrical panel or other component subject to corrosion must be protected from splashes and corrosive gases, or be located outside of the belt press area.(iv) A doctor blade clearance must be adjustable.</content><note type="source"><p>Source Note: The provisions of this §217.250 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scJ/s217.251"><num value="217.251">§217.251</num><heading>Sludge Storage</heading><content>(a) This section applies to the storage of sludge after processing but before final disposal or removal from the wastewater treatment facility site.(b) Sludge in liquid, dewatered, or dry form may be stored at the wastewater treatment facility if the solids have been stabilized in a treatment process.(c) General Storage Requirements.(1) A sludge storage facility must prevent nuisance odor conditions and minimize vector attraction.(2) A sludge storage facility must provide storage of waste sludge separate from a biological treatment process.(3) The design of a sludge storage facility must be based on process design, sludge age, waste stream concentration, operational hours, operational volume in tanks, decant or dewatering volumes and characteristics, time frames needed for decanting or dewatering, and volume needed for storage and sampling.(4) The engineering report must include a solids management plan that describes a method for managing the waste solids that will maintain the design sludge age for a biological process.(d) Storage of Solids - Not Dewatered.(1) Aerobically Digested Solids.(A) A storage facility may store aerobically digested solids.(B) A sludge storage basin must have diffused air or mechanical mixing.(C) A diffused air-mixing unit must provide a minimum air capacity of 30 standard cubic feet per minute per 1,000 cubic feet of volume.(D) A mechanical surface aerator must have a minimum of 1.0 horsepower per 1,000 cubic feet of volume.(E) An earthen sludge storage basin must be lined in accordance with §217.203(d) and (e) of this title (relating to Design Criteria for Natural Treatment Units).(2) Anaerobically Digested Solids. Anaerobically digested solids must be stored in a covered basin with gas release valves and gas control measures.(e) Storage of Dewatered Solids.(1) Dewatered solids must be stored in a steel or concrete container, or in an open stockpile.(2) Dewatered solids with a solids content of less than 35% must not be stored for more than seven days. Dewatered solids with a solids content of at least 35% but not more than 50% must not be stored for more than 90 days.(f) Open Stockpiles.(1) An open stockpile must have an impervious pad underneath the solids to prevent groundwater contamination.(2) An open stockpile must have a system for collecting stormwater runoff and returning it to the headworks of the wastewater treatment facility.(g) Dried Solids Storage.(1) A storage facility may store dewatered solids with a solids content of greater than or equal to 50% in a covered bin or covered facility for a period of time that does not exceed two years.(2) An enclosed storage structure must be mechanically ventilated with at least 20 complete air exchanges per hour and must have an odor control system for the exhaust.</content><note type="source"><p>Source Note: The provisions of this §217.251 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scJ/s217.252"><num value="217.252">§217.252</num><heading>Final Use or Disposal of Sludge</heading><content>(a) The engineering report must identify the final use or final disposal of the sludge. The use, disposal, and transportation of sludge must be conducted in accordance with the requirements contained in Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation) or in Chapter 330 of this title (relating to Municipal Solid Waste).(b) Quantities of Sludge. The quantity of solids generated by the treatment process must be estimated using a mass-balance approach or actual data from a similar full-scale wastewater treatment facility or pilot study. The methods, calculations, and analyses used to estimate quantities of solids must be included in the engineering report.(c) Final Disposition. The sludge use or disposal option must be based on the pathogen and vector attraction characteristics of the sludge.(d) Sludge Constituents.(1) The concentrations of metals in sludge must be determined using methods approved in 40 Code of Federal Regulations §136.3 and must be less than the levels specified in §312.63 of this title (relating to Metal Limits (Other Than Domestic Septage)).(2) A sludge processing system must reduce pathogens in sludge to levels that comply with §312.82 of this title (relating to Pathogen Reduction).(3) A sludge processing system must produce digested sludge that complies with §312.83 of this title (relating to Vector Attraction Reduction).(e) Emergency Provisions for Sludge Disposal. The design of a sludge processing system must include a secondary method of sludge disposal to use in the event of conditions that prevent the use of a wastewater treatment facility's primary use or primary disposal method. The secondary sludge disposal method must be included in the engineering report.(f) Weather Factors. Weather factors such as rainfall, wind conditions, and humidity must be considered as process selection and storage constraints in the determination of the use or disposal of sludge.</content><note type="source"><p>Source Note: The provisions of this §217.252 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c217/scK"><num value="K">SUBCHAPTER K</num><heading>CHEMICAL DISINFECTION</heading><section identifier="/us/state/tx/tac/t30/p1/c217/scK/s217.271"><num value="217.271">§217.271</num><heading>Gaseous Chlorine Disinfection and Sulfur Dioxide Dechlorination System Redundancy Requirements</heading><content>(a) Each gaseous chlorine disinfection and sulfur dioxide dechlorination system must include the number of cylinders required for normal operation at peak flow, plus at least one additional cylinder.(b) Gaseous chlorine disinfection systems and sulfur dioxide dechlorination systems must include a device that automatically switches between cylinders in a manner that ensures continuous disinfection and dechlorination.(c) A wastewater treatment facility must have sufficient space to store at least as many empty cylinders as the number of cylinders required for normal operation at peak flow.(d) A gaseous chemical delivery system must meet the pounds per day requirements in §217.272 of this title (relating to Capacity and Sizing of Gaseous Chlorine Disinfection and Sulfur Dioxide Dechlorination) when the largest chlorinator, sulfonator, or evaporator is out of service.(e) If an injector water supply requires a booster pump, a duplicate backup pump is required.(f) A gaseous chemical delivery system must include an emergency power source capable of operating the chlorination and dechlorination systems during an extended power outage, in accordance with §217.36 of this title (relating to Emergency Power Requirements).</content><note type="source"><p>Source Note: The provisions of this §217.271 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scK/s217.272"><num value="217.272">§217.272</num><heading>Capacity and Sizing of Gaseous Chlorine Disinfection and Sulfur Dioxide Dechlorination Systems</heading><content>(a) The capacity of a chlorine or a sulfur dioxide gas-withdrawal system must be based on the peak flow, in compliance with §217.32(a)(1) of this title (relating to Organic Loadings and Flows for New Wastewater Treatment Facilities) and Equation K.1. in Figure: 30 TAC §217.272(a).Attached Graphic(b) Table K.1. in Figure: 30 TAC §217.272(b) establishes the minimum acceptable design chlorine dosage for disinfection:Attached Graphic(c) At the point of dechlorination, a dechlorination system must provide at least one unit of sulfur dioxide gas for each unit of residual chlorine.</content><note type="source"><p>Source Note: The provisions of this §217.272 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scK/s217.273"><num value="217.273">§217.273</num><heading>Cylinder Requirements for Gaseous Chlorine Disinfection and Sulfur Dioxide Dechlorination Systems</heading><content>(a) Cylinder Withdrawal Rates for Chlorine and Sulfur Dioxide Gases.(1) Gas Withdrawal. The gas withdrawal rate per cylinder for chlorine and sulfur dioxide cylinders must be based on Equation K.2. and the variables from Table K.2. in Figure: 30 TAC §217.273(a)(1). Attached Graphic(A) If the chlorine or sulfur dioxide cylinders are not stored in a temperature-controlled enclosure, the engineering report must include the ambient temperature based on the lowest consecutive seven-day average of the average daily local temperatures over the last ten years, as measured at the nearest National Oceanic and Atmospheric Administration's National Weather Service weather station with at least ten years of records.(B) Heating blankets on chlorine gas cylinders are prohibited.(2) Liquid Withdrawal. If liquid withdrawal from one-ton cylinders is proposed, the maximum withdrawal rates are: (A) 9,600 pounds per day (lbs/day) of chlorine; and (B) 7,200 lbs/day of sulfur dioxide.(b) Number of Cylinders Required. The number of cylinders required for normal operation at peak flow must be based on Equation K.3. in Figure: 30 TAC §217.273(b).Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §217.273 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scK/s217.274"><num value="217.274">§217.274</num><heading>Dosage Control for Gaseous Chlorine Disinfection and Sulfur Dioxide Dechlorination Systems</heading><content>Gaseous chlorine and sulfur dioxide systems must include automatic dosage control that adjusts the dosage relative to the flow of the effluent stream.</content><note type="source"><p>Source Note: The provisions of this §217.274 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scK/s217.275"><num value="217.275">§217.275</num><heading>Requirements for 150 Pound Cylinders used in Gaseous Chlorine Disinfection and Sulfur Dioxide Dechlorination Systems</heading><content>(a) Heated Rooms.(1) A chlorine and sulfur dioxide system that uses 150 pound cylinders must be located indoors at a minimum room temperature of 65 degrees Fahrenheit. This provision applies to all chemical feed equipment, including all connected cylinders, the chlorinators, and the sulfonators.(2) An unconnected chlorine or sulfur dioxide cylinder may be stored outdoors, but the cylinder must reach a surface temperature of at least 65 degrees Fahrenheit before it is connected to a system.(b) Heating Blankets.(1) Heating blankets on chlorine gas cylinders are prohibited.(2) A heating blanket may only be placed on a sulfur dioxide cylinder in a temperature-controlled room to increase the temperature inside the cylinder to above the ambient room temperature.(A) A heating blanket on a sulfur dioxide cylinder must include a mechanism that ensures that a blanket does not heat a cylinder above 100 degrees Fahrenheit. The engineering report must include a calculation that documents the setting for a heating blanket to maintain a sulfur dioxide cylinder temperature of less than 100 degrees Fahrenheit.(B) A cylinder with a heating blanket that is connected to a dechlorination system must have a downstream pressure-reducing valve.(C) A sulfur dioxide system must be capable of automatically deactivating a heating blanket if high pressure is detected in the cylinder or the delivery system.(c) Outdoor Storage. If a 150 pound cylinder is stored outdoors, it must be kept in a storage structure that:(1) protects the cylinder from direct sunlight; and(2) allows safe removal and replacement of the cylinder.</content><note type="source"><p>Source Note: The provisions of this §217.275 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scK/s217.276"><num value="217.276">§217.276</num><heading>Requirements for One-Ton and Larger Cylinders used in Gas-Withdrawal Chlorine Disinfection and Sulfur Dioxide Dechlorination Systems</heading><content>(a) Heated Rooms. The chlorinators and sulfonators for a system using one-ton cylinders must be located indoors and maintained at a minimum room temperature of 65 degrees Fahrenheit.(b) Outdoor Storage.(1) If one-ton cylinders are stored outdoors, the system sizing must be done in accordance with §217.273(a) of this title (relating to Cylinder Requirements for Gaseous Chlorine Disinfection and Sulfur Dioxide Dechlorination Systems). Calculations supporting system sizing must be included in the engineering report.(2) If a one-ton cylinder is stored outdoors, it must be kept in a storage structure that:(A) protects the cylinder from direct sunlight; and(B) allows safe removal and replacement of a cylinder.(3) A one-ton cylinder stored outdoors may be connected to heated pipes to prevent gas from liquefying in the transfer pipes.(c) Heating Blankets.(1) A heating blanket on a one-ton chlorine gas cylinder is prohibited.(2) A heating blanket may only be placed on a sulfur dioxide cylinder to increase the operating temperature of the sulfur dioxide system. The design must specify the temperature a heating blanket may be set to maintain an adequate temperature inside a cylinder, based on the lowest consecutive seven-day average of the local daily low temperatures over the last ten years, as measured at the nearest National Oceanic and Atmospheric Administration's National Weather Service weather station with at least ten years of records.(3) The ambient temperature must be used to calculate a cylinder withdrawal rate in §217.273(a) of this title.(4) A heating blanket on a sulfur dioxide cylinder must include a mechanism that ensures that a blanket does not heat the cylinder surface above 100 degrees Fahrenheit. The engineering report must include a calculation that documents the setting for a heating blanket to maintain a sulfur dioxide cylinder surface temperature of less than 100 degrees Fahrenheit.(5) A cylinder with a heating blanket that is connected to a dechlorination system must have a downstream pressure-reducing valve.(6) A sulfur dioxide system must be capable of automatically deactivating a heating blanket if high pressure is detected in the cylinder or delivery system.</content><note type="source"><p>Source Note: The provisions of this §217.276 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scK/s217.277"><num value="217.277">§217.277</num><heading>Requirements for One-Ton and Larger Cylinders used in Liquid-Withdrawal Chlorine Disinfection and Sulfur Dioxide Dechlorination Systems</heading><content>(a) Heated Rooms. The chlorinators and sulfonators must be located indoors at a minimum room temperature of 65 degrees Fahrenheit.(b) Outdoor Storage. The chlorine and sulfur dioxide cylinders for systems using liquid withdrawal may be stored outdoors without reducing the withdrawal rates calculated from §217.273(a)(2) of this title (relating to Cylinder Requirements for Gaseous Chlorine Disinfection and Sulfur Dioxide Dechlorination Systems).(c) Separation. The separation requirements for a one-ton cylinder liquid-withdrawal systems are the same as those for a one-ton cylinder gas-withdrawal system under §217.278(e) of this title (relating to Safety Requirements for Gaseous Chlorine Disinfection and Sulfur Dioxide Dechlorination Systems).</content><note type="source"><p>Source Note: The provisions of this §217.277 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scK/s217.278"><num value="217.278">§217.278</num><heading>Safety Requirements for Gaseous Chlorine Disinfection and Sulfur Dioxide Dechlorination Systems</heading><content>(a) Floor Drains. A floor drain from a chlorine or sulfur dioxide feed or storage room must not drain to a pipe system connected to any other room of the wastewater treatment facility. Drainage must be routed for safe disposal or for further processing at a rate that does not disrupt a treatment process or violate a water quality permit requirement.(b) Doors and Windows.(1) Each door in a chlorine or sulfur dioxide room must: (A) open to the outside of the building; and (B) include panic hardware.(2) Each chlorine or sulfur dioxide room must have at least one clear, gas-tight window in a gas-tight exterior door.(3) A chlorine or sulfur dioxide room may have additional clear, gas-tight windows to ensure the disinfection and dechlorination systems may be viewed without entering an enclosed room.(c) Ventilation.(1) An enclosed storage and feed room must have continuous forced mechanical ventilation with at least one complete air exchange every 3.0 minutes.(2) Exhaust equipment must have: (A) external controls; and (B) leak detection equipment.(3) A fan must be located at the top of the room to push air across the room and through an exhaust vent located at the bottom of the room on the opposite side (see Figure: 30 TAC §217.278(c)(3)). The top of the fan must be no more than one foot below the ceiling. The bottom of the exhaust vent must be no more than one foot above floor level.Attached Graphic(4) An exhaust system may use vacuum pressure ventilation instead of forced mechanical ventilation if the ventilation facility has gas containment and treatment as prescribed by the National Fire Protection Association 1 Fire Code®.(5) A vent from the sulfur dioxide or chlorine gas feed systems must:(A) exhaust to a point that is not frequented by wastewater treatment facility staff, such as stairs, walkways, and common areas; (B) exhaust to a point that is not near a fresh air intake; and (C) be clearly marked with at least a four inch tall font that reads "Danger: Hazardous Exhaust."(d) Gas Detectors and Protection.(1) An area containing chlorine or sulfur dioxide under pressure must have a gas detector and alarm system.(2) An area used for handling pressurized chlorine or sulfur dioxide gases must have respiratory and protective equipment. The respiratory and protective equipment must meet the requirements of the National Institute for Occupational Safety and Health.(A) The respiratory and protective equipment must be immediately accessible at the wastewater treatment facility. The location and use of the respiratory and protective equipment must be described in the wastewater treatment facility's operation and maintenance manual.(B) The storage of respiratory equipment in any room where gas under pressure is stored or used is prohibited.(C) Instructions for using the respiratory and protective equipment must be kept with or posted next to the equipment.(D) The respiratory equipment must use compressed air and must have at least a 30-minute capacity.(e) Separation.(1) Chlorine cylinders must not be stored in the same room as sulfur dioxide cylinders.(2) Chlorine feed equipment must not be housed in the same room as sulfur dioxide feed equipment.(3) Cylinders and feed equipment that supply chlorine must be separated by at least one gas-tight wall from cylinders and feed equipment that supply sulfur dioxide.</content><note type="source"><p>Source Note: The provisions of this §217.278 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scK/s217.279"><num value="217.279">§217.279</num><heading>Equipment and Material Requirements for Gaseous Chlorine Disinfection and Sulfur Dioxide Dechlorination Systems</heading><content>(a) All equipment and material used in a disinfection and dechlorination system must meet the manufacturer's recommendations.(b) A 150 pound cylinder must be stored vertically and secured by a clamp or chain to prevent it from falling over. A one-ton cylinder must be stored horizontally on trunnions.(c) Measurements. A gaseous chlorine and sulfur dioxide system must have a scale designed for determining the amount of chemical remaining in the connected cylinders.(d) Pressure Pipe Systems for Gas Transport.(1) Gas transport pressure pipes must be at least equivalent to Schedule 80 black seamless steel pipe. Gas transport fittings must be at least equivalent to 2,000 pound forged steel fittings.(2) The use of polyvinyl chloride (PVC) in a pressure pipe system is prohibited.(3) A one-ton cylinder system must use a gas filter upstream of a pressure-reducing valve.(4) A pressure pipe system must have a pressure-reducing valve if:(A) the system has more than 20 linear feet of supply pipes;(B) the system is a gaseous sulfur dioxide system with a heating blanket; or(C) there are pressure pipes on the discharge side of an evaporator.(5) A pressure pipe on the gas discharge side of an evaporator must have a rupture disk and a high-pressure alarm to warn wastewater treatment facility staff of disk rupture.(6) A gas pipe entering a chlorinator or sulfonator must have a heated leg drop sediment trap.(7) A gaseous sulfur dioxide system must have a seat and stem constructed of material with corrosion resistance and brittle strength at least equivalent to 316 stainless steel.(8) A gaseous chlorine system must have at least the equivalent of a Monel® seat and stem.(e) Pressure Pipe Systems - Liquid Transport.(1) The use of PVC in a pressure pipe system is prohibited.(2) The manifolding of one-ton containers for simultaneous liquid chemical withdrawal is prohibited.(3) A liquid pipe system must include a rupture disk, a pressure switch to warn wastewater treatment facility staff of disk rupture, and an expansion chamber.(f) Vacuum Pipes.(1) Vacuum pipes and fittings downstream from a vacuum regulator must have corrosion resistance equivalent to PVC or 316 stainless steel.(2) A vacuum pipe must have socket joints.(g) Diffusers. The minimum velocity through any chlorine or sulfur dioxide system diffuser must be at least 10 feet per second. The engineering report must include calculations that verify this requirement is met, unless a diffuser has a mechanical mixer.</content><note type="source"><p>Source Note: The provisions of this §217.279 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scK/s217.280"><num value="217.280">§217.280</num><heading>Design of Sodium Hypochlorite Disinfection and Sodium Bisulfite Dechlorination Systems</heading><content>(a) Redundancy. Sodium hypochlorite and sodium bisulfite systems must include at least two chemical solution pumps and must ensure that the capacity requirements in subsection (b) of this section are met with the largest pump out of service.(b) Capacity and Sizing. The size of a chemical liquid solution pump and pipe system must be determined as follows: (1) Sodium Hypochlorite. (A) Pounds Per Day of Chlorine Required. Figure: 30 TAC §217.272(b), Table K.1. and Figure: 30 TAC §217.272(a), Equation K.1. must be used to determine the pounds per day of chlorine required.(B) Chlorine Determination. The pounds of available chlorine per gallon of sodium hypochlorite solution must be determined using values and appropriate references supplied by the chemical manufacturer. (C) Gallons per Hour Determination. In order to size the chemical metering equipment, the gallons per hour must be calculated using Equation K.4. in Figure: 30 TAC §217.280(b)(1)(C).Attached Graphic(2) Sodium Bisulfite. (A) Equation K.4. in Figure: 30 TAC §217.280(b)(1)(C) must be used to determine the pounds per day of sodium bisulfite required. (B) The minimum amount of sodium bisulfite needed to dechlorinate one pound of chlorine is 1.465 pounds. The pounds per day of chlorine that must be dechlorinated, as determined in subparagraph (A) of this paragraph, multiplied by 1.465 pounds of sodium bisulfite per pound of chlorine, determines the pounds of sodium bisulfite needed.(C) The gallons per hour of sodium bisulfite solution needed from the chemical metering equipment must be calculated using Equation K.5. in Figure: 30 TAC §217.280(b)(2)(C).Attached Graphic(c) Dosage Control. A dosage control system may be positive pressure or vacuum and must automatically adjust the sodium hypochlorite or sodium bisulfite feed rate to correspond to the flow of the effluent stream.(d) Chemical Handling.(1) Storage Tank Sizing.(A) A storage facility for sodium hypochlorite with a solution strength greater than or equal to 10% must not be sized to store more than a 15-day supply, based on the design average daily consumption, unless a residual analyzer or oxidation-reduction potential (ORP) monitor provides automatic feed control to compensate for solution degradation. Where a residual analyzer or ORP monitor is included in the design, a storage facility must not be sized to store more than a 30-day supply, based on the daily average consumption.(B) A storage facility for sodium hypochlorite with a solution strength less than 10% must not be sized to store more than a 30-day supply, based on the daily average consumption.(C) A wastewater treatment facility with a design flow greater than or equal to 1.0 million gallons per day must have at least two chemical storage tanks for each chemical.(2) Temperature considerations.(A) A sodium hypochlorite tank that is stored outdoors must be opaque or otherwise block sunlight from penetrating the tank.(B) An outdoor sodium bisulfite storage facility and associated pipes must be insulated and heat traced if located in an area where the ambient temperatures fall below 40 degrees Fahrenheit, based on the lowest 7-day average of the average daily local temperatures over the last 10-years, as measured at the nearest National Oceanic and Atmospheric Administration's National Weather Service weather station with at least ten years of data.(e) Equipment and Materials.(1) Equipment and materials used for storage, pumping, and transport of sodium hypochlorite must be used according to the manufacturer's recommendations and designed for use in a corrosive chemical environment.(2) Equipment and materials used for storage, pumping, and transport of sodium bisulfite must be used according to the manufacturer's recommendations and designed for use in an acidic chemical environment.(f) Safety.(1) Ventilation. A chemical storage area must be ventilated to exhaust fumes.(2) Liquid-depth indicators. A chemical storage tank must have an external liquid-depth indicator.(3) Spill Containment.(A) A chemical storage area for sodium hypochlorite and sodium bisulfite must have secondary containment equal to 125% of the volume of the largest storage tank.(B) Manifolded tanks must have secondary containment equal to 125% of the cumulative manifolded tank volume. If the pipe system is designed to prevent a combined release, then the secondary containment must equal 125% of the largest tank volume.(C) A tank must either: (i) be placed on an equipment pad that is elevated above the secondary containment maximum liquid level; or (ii) be placed in a secondary containment structure that is able to be drained to prevent the tank from floating.(D) A containment structure for sodium hypochlorite must be separate from a containment structure for sodium bisulfite.(4) Emergency and Protective Equipment. A chemical storage area must have at least one emergency eyewash station and personal protective equipment for all wastewater treatment facility staff working in the area.</content><note type="source"><p>Source Note: The provisions of this §217.280 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scK/s217.281"><num value="217.281">§217.281</num><heading>Application of Chlorination and Dechlorination Chemicals</heading><content>(a) Mixing Requirements.(1) Mixing Zones. A mixing zone within a chlorine contact basin must not be considered as part of the volume needed for disinfection. A mixing zone must be designed to ensure that the chlorine is thoroughly mixed with the wastewater before entering a chlorine contact chamber, as described in paragraph (2) of this subsection.(2) Chlorine and Sodium Hypochlorite Application. A disinfection system must apply the chlorine gas or solution in a highly turbulent flow regime created by in-line diffusers, mechanical mixers, or jet mixers. Effective initial mixing for the mean velocity gradient (G value) in the area of turbulent flow must exceed 500 per second. A serpentine disinfection channel may be used in place of turbulent initial mixing if the length-to-width ratio is at least 40-to-1 and complete mixing is demonstrated by a dye test.(3) Sulfur Dioxide and Sodium Bisulfite Application.(A) The mixing for a sulfur dioxide or sodium bisulfite system must ensure compliance with the effluent limits in the wastewater permit.(B) A disinfection system must provide a mean velocity gradient (G value) of at least 250 per second.(b) Chlorine Contact Basins.(1) A chlorine contact basin must provide a minimum chlorine contact time of 20 minutes at the peak flow.(2) A chlorine contact basin must prevent short-circuiting to ensure that the wastewater is retained in a chlorine contact basin for at least 20 minutes at peak flow.(3) A rectangular chlorine contact basin must have rounded corners.(4) If a wastewater treatment facility is designed with more than one chlorine contact basin:(A) the design must provide a means of verifying the chlorine contact time and residual chlorine in each basin; and(B) separate sampling points must be provided after each chlorine contact basin, unless the effluent from the basins is commingled at a single sampling point.(5) The design of an aerated chlorine contact basin must include an analysis of the chlorine feed rate required to offset chlorine volatilization.(6) The engineering report must include supporting data from a chlorine contact basin design model, performance data of a similar design, or a field tracer study.(7) A chlorine contact basin must include a drain to facilitate removal of accumulated settled solids.(c) Dechlorination Contact Time.(1) A dechlorination system must have sufficient mixing and contact time between the disinfected wastewater and a dechlorinating agent to ensure continuous compliance with the chlorine limits in the wastewater permit.(2) A dechlorination system must prevent short-circuiting and provide a minimum contact time of 20 seconds at the peak flow.</content><note type="source"><p>Source Note: The provisions of this §217.281 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scK/s217.282"><num value="217.282">§217.282</num><heading>Other Chemical Disinfection and Dechlorination Processes</heading><content>(a) Any chemical disinfection or dechlorination process not discussed in this subchapter, such as chlorine dioxide, ozone, tablet or powder disinfection and dechlorination processes, and liquid solution disinfection and dechlorination processes are subject to the requirements of §217.7(b)(2) of this title (relating to Types of Plans and Specifications Approvals).(b) Chemical disinfection processes not discussed in this subchapter must be flow-paced and must use chemicals approved by the manufacturer for the purpose of wastewater disinfection.</content><note type="source"><p>Source Note: The provisions of this §217.282 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scK/s217.283"><num value="217.283">§217.283</num><heading>Post-Disinfection Requirements</heading><content>(a) Sampling points must be identified in the engineering report. A design must include a sufficient number of sampling points to:(1) allow an operator to monitor the disinfection system for process control; and(2) allow monitoring of permitted effluent limits.(b) Dissolved Oxygen Requirements. A treatment facility must be designed with the ability to add post-aeration if needed to meet effluent limits for dissolved oxygen in the wastewater permit. If the wastewater permit requires a minimum dissolved oxygen of 5.0 milligrams per liter or greater, the engineering report must include calculations that demonstrate how the post-aeration system will maintain the minimum dissolved oxygen level.</content><note type="source"><p>Source Note: The provisions of this §217.283 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c217/scL"><num value="L">SUBCHAPTER L</num><heading>ULTRAVIOLET LIGHT DISINFECTION</heading><section identifier="/us/state/tx/tac/t30/p1/c217/scL/s217.291"><num value="217.291">§217.291</num><heading>Ultraviolet Light Disinfection System Definitions</heading><content>(a) Module--A grouping of ultraviolet lamps electrically and physically connected to each other.(b) Bank--A grouping of modules that:(1) can be automatically turned on and off in relation to effluent flow variations;(2) is electrically or physically connected together or physically adjacent to each other; and(3) forms a complete unit capable of treating the full design width and depth of the disinfection channel.</content><note type="source"><p>Source Note: The provisions of this §217.291 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scL/s217.292"><num value="217.292">§217.292</num><heading>Ultraviolet Light Disinfection Systems Effluent Limitations</heading><content>Ultraviolet light disinfection systems must disinfect the effluent to the bacteria limits in the wastewater treatment facility's wastewater permit.</content><note type="source"><p>Source Note: The provisions of this §217.292 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scL/s217.293"><num value="217.293">§217.293</num><heading>Ultraviolet Light Disinfection Systems Redundancy Requirements</heading><content>(a) An ultraviolet (UV) disinfection system must include at least two banks positioned in series in a disinfection channel.(b) A UV light disinfection system must meet the dosage requirements determined in §217.295 of this title (relating to Ultraviolet Light Disinfection Dosage and System Sizing) under all conditions.(c) An owner must maintain an inventory of replacement equipment, including lamps, ballasts, quartz sleeves, banks, and modules, to replace equipment during emergency repairs and scheduled maintenance. The minimum inventory of replacement lamps, ballasts, and quartz sleeves is described in §217.298(b) of this title (relating to Ultraviolet Light Disinfection System Cleaning and Maintenance).</content><note type="source"><p>Source Note: The provisions of this §217.293 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scL/s217.294"><num value="217.294">§217.294</num><heading>Ultraviolet Light Disinfection Systems Monitoring and Alarms</heading><content>(a) An ultraviolet (UV) system shall continuously monitor and display the following information on the system control panel:(1) the flow rate in each disinfection channel;(2) the relative intensity of the lamps in one bank of a disinfection channel;(3) the operational status and condition of each bank;(4) the on or off status of each lamp in the system;(5) the number of operating hours of the lamps in each bank in the system;(6) the total number of hours of operation for each bank in the system; and(7) the transmissivity of UV light in the disinfection channel.(b) Flow pacing is required and shall be accomplished by automatically turning the appropriate number of banks on or off in proportion to effluent flow. Set points used to energize the banks must be adjustable.(c) A UV system must include an alarm system.(1) A wastewater treatment facility that is not supervised 24-hours per day must have a telemetry system with battery backup as part of the alarm system. A telemetry system must notify a wastewater treatment facility operator in the event of a UV alarm and must distinguish between major and minor alarms.(2) A UV system must include the following minimum alarm conditions:(A) A minor alarm must activate if:(i) the UV intensity of the system is less than 45%, relative to the peak intensity after 100 hour burn in; or(ii) there is a lamp outage.(B) A major alarm must activate if:(i) the UV intensity of the system is less than 25%, relative to the peak intensityafter 100 hour burn in;(ii) more than 10% of the lamps fail;(iii) there is a loss of flow signal upon failure of a bank to energize;(iv) there is an outage of any module or bank; or(v) the transmissivity is low, based on the manufacturer's recommendations.</content><note type="source"><p>Source Note: The provisions of this §217.294 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scL/s217.295"><num value="217.295">§217.295</num><heading>Ultraviolet Light Disinfection Dosage and System Sizing</heading><content>(a) An ultraviolet light (UV) system must be sized based upon the results of an independent bioassay that meets the following minimum criteria.(1) The lamp and ballast in a bioassay test system must have the same spectral characteristics and 254 nanometers (nm) wavelength output as the full-scale system.(2) Spacing of the lamps in a bioassay test unit must be the same as in the full-scale system.(3) The arrangement of the lamps must mirror the full-scale system.(4) The maximum scale-up factor is 10.(5) Scale down is prohibited.(6) The minimum number of lamps in a bioassay is four lamps per reactor.(b) If a variable output lamp is used, detailed documentation from the lamp manufacturer must be provided to document 254 nm ultraviolet output, operational wattage versus lamp input power (voltage and current), along with data demonstrating power requirements to the lamp and ballast to achieve the stated output.</content><note type="source"><p>Source Note: The provisions of this §217.295 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scL/s217.296"><num value="217.296">§217.296</num><heading>Ultraviolet Light Disinfection Bioassay Test Procedure</heading><content>(a) A bioassay procedure must conform to one of the following protocols: (1) National Water Research Institute's Ultraviolet Disinfection Guidelines for Drinking Water and Water Reuse (3rd edition, 2012); or (2) NSF International, The Public Health and Safety Company, 40 CFR §35.6450 Environmental Technology Verification Protocol (October 2002).(b) The following minimum standards are required for validation of a bioassay. (1) The source of water for the test organism solution must be identified and its UV transmittance must be recorded. If potable water is used, the bioassay must also address how disinfectant residues were removed.(2) The depth of the suspension must be 1.0 centimeter.(3) The organism density must be 105 to 107 plaque forming units or colony forming units per milliliter.(4) The dose response relationship must be based on a range of five to seven exposure times.(5) The bioassay procedure must be conducted at least three times, each from a separate dilution of the same stock suspension. All results must be included for a bioassay to be valid.(6) A minimum of two controls (unexposed) must be sampled and analyzed with each dose run. All results must be included for a bioassay to be valid.(7) The diameter of the collimating tube must be at least equal to the diameter of the Petri dishes. Any difference between the diameter of the collimating tube and the diameter of the Petri dishes must be accounted for in the supporting calculations.(8) The narrow band detector used for intensity determination must be calibrated for accuracy.(9) 254 nanometer ultraviolet must be measured and reported as the dose response.(10) The speed of the mixing bar must not cause spatter or cavitation.(11) Any difference between the velocity profile in the bioassay and the velocity profile in the full-scale unit must be justified.(12) Any difference between the gallons per minute per inch of UV lamp in the bioassay and the gallons per minute per inch of UV lamp in the full-scale unit must be justified.(13) The lamp intensity data obtained in the bioassay must be used to set the operating parameters of the lamps.(14) Lamp intensity used in the flow through test reactor shall be set after a 100-hour burn in and stabilization period.(15) Electrical input for 100% lamp output must be recorded and verified.(16) Lamp intensity in the bioassay must be measured at the exact height of the surface of the suspension.(17) No operating condition may be used that has not been proven effective by the bioassay.(18) Any variation from the criteria in this subsection must: (A) be justified by using industry best practices such as Standardization of Method for Fluence (UV Dose) Determination in Bench-Scale UV Experiments, Bolton and Linden (2003); and (B) approved through the variance procedures in §217.4 of this title (relating to Variances).(19) Bioassay procedures and results must be signed and sealed by a licensed professional engineer.(c) Effluent percent transmission during the full scale testing shall be established in accordance with the terms and conditions of the wastewater treatment facility's wastewater permit.</content><note type="source"><p>Source Note: The provisions of this §217.296 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scL/s217.297"><num value="217.297">§217.297</num><heading>Ultraviolet Light Disinfection Reactor Design</heading><content>(a) An approach channel must be unobstructed and have a minimum length of 4.0 feet before the first ultraviolet (UV) bank.(b) The downstream channel length must be unobstructed for a minimum length of 4.0 feet following the last bank of UV lamps and before a fluid-level control device.(c) Inlet channels must provide equal flow distribution across all UV channels.(d) A downstream discharge point of a UV system must include a level control that ensures that the UV lamps remain submerged, according to the manufacturer's recommendations, regardless of flow.(e) The UV system must prevent an individual's exposure to UV light from the UV system, including upstream and downstream portions of a UV channel.(f) An enclosed UV system must have a dehumidifier or must be designed to prevent corrosion of electrical components.</content><note type="source"><p>Source Note: The provisions of this §217.297 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scL/s217.298"><num value="217.298">§217.298</num><heading>Ultraviolet Light Disinfection System Cleaning and Maintenance</heading><content>(a) An ultraviolet (UV) disinfection system must include provisions for draining each UV disinfection channel to another treatment unit within the wastewater treatment facility and for routine cleaning of the UV lamps and modules.(b) A UV system must include the following replacement parts, as a percentage of the total system, equal to at least:(1) 5% of the lamps;(2) 2% of the ballasts; and(3) 5% of the quartz sleeves.(c) The UV system must ensure continuous disinfection during maintenance.</content><note type="source"><p>Source Note: The provisions of this §217.298 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scL/s217.299"><num value="217.299">§217.299</num><heading>Ultraviolet Light Disinfection System Safety</heading><content>Signs must be posted in an ultraviolet (UV) reactor area with "WEAR UV-RATED EYE PROTECTION" and "DO NOT LOOK AT UV LAMPS" in English and Spanish. Anyone in a reactor area must wear appropriate personal protection, including a UV-rated face shield and safety glasses or goggles.</content><note type="source"><p>Source Note: The provisions of this §217.299 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scL/s217.300"><num value="217.300">§217.300</num><heading>Post-Disinfection Requirements</heading><content>(a) Sample points. Sampling points must be identified in the engineering report. A design must include a sufficient number of sampling points to:(1) allow an operator to monitor the disinfection system for process control; and(2) allow monitoring of permitted effluent limits.(b) Dissolved Oxygen Requirements. A wastewater treatment facility must be designed with the ability to add post-aeration if needed to meet effluent limits for dissolved oxygen in the wastewater permit. If the wastewater permit requires a minimum dissolved oxygen of 5.0 milligrams per liter or greater, the engineering report must include calculations that demonstrate how the post-aeration system will maintain the minimum dissolved oxygen level.</content><note type="source"><p>Source Note: The provisions of this §217.300 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c217/scM"><num value="M">SUBCHAPTER M</num><heading>SAFETY</heading><section identifier="/us/state/tx/tac/t30/p1/c217/scM/s217.321"><num value="217.321">§217.321</num><heading>Safety Design of a Wastewater Treatment Facility</heading><content>(a) The safety aspects of a wastewater treatment facility design must be based on Design of Municipal Treatment Plants, WEF Manual of Practice No. 8, 5th edition, 2009, published by the Water Environment Federation. Other safety design guidelines may be used only if submitted in the design submittal and approved in writing by the executive director.(b) Occupational safety and health hazards, and risks to workers and the public, must be addressed in the design of collection system and wastewater treatment facility equipment and processes.(c) The design of a wastewater treatment facility must incorporate processes that use the least hazardous and least toxic chemicals and the smallest amounts of those chemicals that will effectively treat and disinfect the influent so that the effluent and sludge meet the requirements in the associated wastewater permit, and do not degrade the water quality in a receiving stream or cause accumulation of hazardous or toxic chemicals in a land application area.(d) Where applicable, a design must follow the guidelines pursuant to 29 Code of Federal Regulations, Part 1910.</content><note type="source"><p>Source Note: The provisions of this §217.321 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scM/s217.322"><num value="217.322">§217.322</num><heading>Safety and Security Audits</heading><content>(a) Safety Audit.(1) The owner of a wastewater treatment facility must conduct an annual safety audit of the wastewater treatment facility and collection system that evaluates injuries and incidents during the prior year in order to determine the locations, causes, types of injuries, and jobs being performed when the injuries or incidents occurred.(A) For the purposes of this subchapter, an injury is harm or damage to an individual that results in any of the following: death, time away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.(B) For the purposes of this subchapter, an incident is harm or damage to an individual that results in first aid.(2) The annual safety audit must identify the locations and jobs associated with injuries and incidents and the owner must develop a corrective action plan with a reasonable risk-based schedule for implementing corrective actions to address the causes of the injuries and incidents. (3) The owner must complete corrective actions according to the schedule in the owner's risk-based corrective action plan. (b) Security Audit.(1) The owner of a wastewater treatment facility must conduct an annual security audit of the wastewater treatment facility and collection system.(2) The annual security audit must be based on the Asset Based Vulnerability Checklist for Wastewater Utilities (2002) by the Association of Metropolitan Sewerage Agencies. An equivalent security audit protocol may be used, but only if approved in writing by the executive director.</content><note type="source"><p>Source Note: The provisions of this §217.322 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scM/s217.323"><num value="217.323">§217.323</num><heading>Hazardous Operation and Maintenance</heading><content>(a) An owner shall perform a job safety analysis to identify potentially hazardous situations for a new or altered wastewater treatment unit or collection system unit before construction begins.(b) For those identified potentially hazardous tasks, a list must be prepared for each task that identifies the necessary:(1) tools, equipment, and supplies;(2) fixed and portable lifting equipment;(3) fixed and portable monitoring equipment;(4) personal protective equipment and clothing;(5) warning signs and guards; and(6) first-aid supplies.(c) The tools at a wastewater treatment facility must be sufficient to:(1) allow workers to safely and properly operate equipment;(2) perform required preventive maintenance, in compliance with the manufacturers' minimum requirements;(3) make repairs; and(4) maintain processes, pumps, motors, blowers, compressors, laboratory instrumentation, and other equipment.</content><note type="source"><p>Source Note: The provisions of this §217.323 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scM/s217.324"><num value="217.324">§217.324</num><heading>Chemical Handling</heading><content>(a) An owner must make available personal protective equipment for breathing, eyes, face, head, and extremities, as well as all other equipment recommended by the Safety Data Sheet, for all individuals that will handle any chemical known to pose a potential health risk. The owner must train the wastewater treatment facility staff in the use of the equipment.(b) A wastewater treatment facility that uses any chemical must be designed to provide eye washing and showering systems within each chemical work area for immediate emergency use. The specifications must reference a recognized national reference standard, such as American National Standards Institute Z358.1, for placement and installation of eye wash stations and showers.(c) All personal protective equipment and chemical neutralizers must be immediately accessible outside a chemical storage area.</content><note type="source"><p>Source Note: The provisions of this §217.324 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scM/s217.325"><num value="217.325">§217.325</num><heading>Railings, Ladders, Walkways, and Stairways</heading><content>(a) A guard rail with an opening that is designed to provide access must have a removable chain across the opening when the opening is not in use.(b) An open valve box, pit, tank, or basin with walls that extend less than 4.0 feet above ground must have a railing that extends from the top of the walls to at least 4.0 feet above ground level. The railing must be capable of preventing an individual from falling into the open valve box, pit, tank, or basin.(c) Equipment and work areas that are more than 4.0 feet above or below ground level must be designed with a permanent stairway for access unless the work area is a manhole or a similar confined space.(d) A ladder must have flat safety tread rungs and must extend at least 3.5 feet out of a vault.(e) A walkway above an open tank must have a toe board at least four inches tall that is designed to prevent a person from slipping off the walkway. Owners and engineers should refer to 29 Code of Federal Regulations, Part 1910, Subpart D, for additional guidance on walking and working surfaces.(f) Walkways, steps, landings, and ladder rungs must have a non-slip finish. The vertical rise between adjacent steps on a stairway must not exceed 9.5 inches. Stairways must be designed with no horizontal gap between the tread run of adjacent steps.(g) An overhead pipe or other overhead obstruction must have at least a 7.0-foot clearance, unless the pipe or obstruction is padded to prevent head injury and has a warning sign.(h) Basins with vertical walls terminating more than 4.0 feet above or below ground level must be designed with a stairway for access.(i) Guard rails on walkways shall have adequate clearance space for maintenance operations.(j) Clarifiers must have grating across the discharge pipe in the launder or stop bars across the launder before the discharge pipe to prevent an individual from entering the discharge pipe from the clarifier.(k) All guard rails, railings, ladders, walkways, and associated appurtenances must be designed and constructed to ensure the safety of individuals at the wastewater treatment facility.</content><note type="source"><p>Source Note: The provisions of this §217.325 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scM/s217.326"><num value="217.326">§217.326</num><heading>Electrical and Fire Code Compliance</heading><content>(a) The electrical elements of a wastewater treatment facility and collection system must conform to local electrical codes. If the wastewater treatment facility or collection system is located in an area that does not have a local electrical code, the electrical elements must comply with the most recent edition of the National Fire Protection Association 70 National Electrical Code® at the time of installation.(b) The wastewater treatment facility and collection system must conform to local fire codes. If the wastewater treatment facility is located in an area that does not have a local fire code, the wastewater treatment facility and collection system must comply with the most recent edition of National Fire Protection Association 1 Fire Code® at the time of installation.(c) Electrical elements must be protected from environmental hazards with a housing. Environmental hazards include moisture, extreme temperatures, and pests.</content><note type="source"><p>Source Note: The provisions of this §217.326 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scM/s217.327"><num value="217.327">§217.327</num><heading>Non-Potable Water</heading><content>Each hydrant and outlet for non-potable water must have signs in both English and Spanish reading "NON-POTABLE WATER, DO NOT DRINK" and "NO BEBA EL AGUA."</content><note type="source"><p>Source Note: The provisions of this §217.327 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scM/s217.328"><num value="217.328">§217.328</num><heading>Wastewater Treatment Facility Access Control</heading><content>(a) A wastewater treatment facility must be completely enclosed by an intruder-resistant fence.(1) The intruder resistant fence must have a locked gate at each access point.(2) The intruder-resistant fence must be at least 6.0 feet tall, and the bottom of the fence must be close enough to surface grade to prevent human access.(3) The intruder-resistant fence must be constructed of wood, concrete, masonry, or metal. Other materials may be used, but only if approved in writing by the executive director.(4) The top of the intruder-resistant fence must have at least three strands of barbed wire. A fence that is at least 8.0 feet tall does not require barbed wire. The top of an intruder-resistant fence may have outwardly-directed iron bars spaced on four-inch centers instead of barbed wire.(5) A five-strand barbed wire fence may be used in a rural area for fencing lagoons or overland-flow plots, but only if approved in writing by the executive director.(b) A wastewater treatment facility must have hazard signs on the outward facing side of the fence, stating "DANGER - NO TRESPASSING" in English and Spanish. At least one clearly visible and legible hazard sign must be placed on each gate and each side fence.(c) A wastewater treatment facility must be accessible by truck during all weather conditions, including a 25-year, 24-hour rainfall event, and must have at least one all-weather access road with the driving surface situated above the 100-year flood plain.</content><note type="source"><p>Source Note: The provisions of this §217.328 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scM/s217.329"><num value="217.329">§217.329</num><heading>Color Coding of Pipes</heading><content>(a) A new wastewater treatment facility must have color-coded pipes in accordance with subsection (e) of this section.(b) A new wastewater treatment facility must have detectable underground warning tape for each non-metallic underground pipe.(c) An existing wastewater treatment facility must color-code and install detectable underground warning tape for each pipe installed as part of an alteration.(d) A non-potable water pipe must be painted purple and be stenciled "NON-POTABLE WATER, DO NOT DRINK" and "NO BEBA EL AGUA."(e) A wastewater treatment facility design must use the following color-coding for pipes:(1) sludge - brown;(2) natural gas - red;(3) potable water - light blue;(4) chlorine - yellow;(5) sulfur dioxide - lime green with yellow bands;(6) sewage - grey;(7) compressed air - light green;(8) heated water - blue with 6 inch red bands spaced 30 inches apart;(9) power conduit - in compliance with the National Fire Protection Association 70 National Electrical Code®;(10) reclaimed water- purple with black lettering;(11) gray water- purple with yellow writing;(12) instrument air - light green with dark green bands;(13) liquid alum - yellow with orange bands;(14) alum (solution) - yellow with green bands;(15) ferric chloride - brown with red bands;(16) ferric sulfate - brown with yellow bands;(17) polymers - white with green bands;(18) ozone - stainless steel with white bands;(19) raw water - tan; and(20) effluent after clarification - dark green.</content><note type="source"><p>Source Note: The provisions of this §217.329 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scM/s217.330"><num value="217.330">§217.330</num><heading>Drinking Water Supply Connections</heading><content>(a) A connection between a drinking water supply system and any part of a wastewater treatment facility or collection system must be made through an air gap or a reduced-pressure backflow assembly (RPBA) in accordance with American Water Works Association (AWWA) Standard C511-97 or AWWA Manual M14.(b) Each RPBA must be tested and passed annually by a commission licensed backflow prevention assembly tester. If an RPBA fails an annual test, it must be repaired or replaced, and then retested by a commission licensed backflow prevention assembly tester.(c) RPBA test results and maintenance records must be retained at the wastewater treatment facility for at least three years.(d) Vacuum breakers are required on all potable water spigots.</content><note type="source"><p>Source Note: The provisions of this §217.330 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scM/s217.331"><num value="217.331">§217.331</num><heading>Freeze Protection</heading><content>A horizontal surface subject to freezing temperatures and water accumulation must be sloped to prevent ice formation.</content><note type="source"><p>Source Note: The provisions of this §217.331 adopted to be effective August 28, 2008, 33 TexReg 6843.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scM/s217.332"><num value="217.332">§217.332</num><heading>Noise Levels</heading><content>(a) An area accessed by individuals must be designed to comply with 29 Code of Federal Regulations §1910.95.(b) Removable noise attenuation equipment, such as removable mufflers or removable noise-reducing panels, must remain attached to the equipment at all times to reduce noise, unless the noise attenuation equipment is removed for maintenance activities.</content><note type="source"><p>Source Note: The provisions of this §217.332 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c217/scM/s217.333"><num value="217.333">§217.333</num><heading>Confined Spaces</heading><content>(a) A design must, to the extent practicable, avoid creating confined spaces as defined in 29 Code of Federal Regulations §1910.146.(b) A ventilating manhole must be equipped with a connection for a portable ventilator.(c) A confined space entry must be conducted according to the requirements of 29 Code of Federal Regulations §1910.146.</content><note type="source"><p>Source Note: The provisions of this §217.333 adopted to be effective August 28, 2008, 33 TexReg 6843; amended to be effective December 4, 2015, 40 TexReg 8254.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c218"><num value="218">CHAPTER 218</num><heading>BRINE EVAPORATION PITS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c218/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c218/sc/s218.1"><num value="218.1">§218.1</num><heading>Definitions</heading><content>The following words and terms, when used in the subchapter, have the following meanings unless the context clearly indicates otherwise.(1) Brine evaporation pit--A surface impoundment within which groundwater and incidental storm water, is or has been retained and evaporated, for the purpose of recovering brine product.(2) Brine product--concentrated brine water and residual minerals, salts, or other naturally occurring substances produced by the evaporation of groundwater.(3) Facility--the brine evaporation pit and composite liner system; storm water control and retention structures; and brine product handling areas.(4) Incidental storm water--rainwater falling directly into a brine evaporation pit and/or collected storm water runoff from brine product handling areas.(5) Licensed engineer--an engineer who holds a license issued under Texas Occupations Code, Title 6, Chapter 1001.(6) Operator--Any person responsible for the physical operation and control of a brine evaporation pit.(7) Owner--Any person having title, wholly or partly, of a brine evaporation pit.</content><note type="source"><p>Source Note: The provisions of this §218.1 adopted to be effective October 16, 2008, 33 TexReg 8530.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c218/sc/s218.5"><num value="218.5">§218.5</num><heading>Purpose</heading><content>The purpose of this subchapter is to regulate brine evaporation pit operations to:(1) prohibit discharge from the facility into or adjacent to water in the state;(2) establish standards for design, construction, location, operation, and maintenance to prevent contamination of surface and groundwater resources;(3) require financial assurance to ensure proper closure of the evaporation pit; and(4) require that the owner or operator submit evidence to the Texas Commission on Environmental Quality of pollution liability insurance coverage of bodily injury and property damage to third parties.</content><note type="source"><p>Source Note: The provisions of this §218.5 adopted to be effective October 16, 2008, 33 TexReg 8530.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c218/sc/s218.10"><num value="218.10">§218.10</num><heading>Applicability</heading><content>(a) This subchapter applies to a brine evaporation pit:(1) operated for the commercial production of brine product by solar evaporation; and(2) in operation on or after the effective date of this rule, regardless of the date the facility began operation.(b) This subchapter does not apply to:(1) operations associated with oil and gas production and regulated under the authority of the Texas Railroad Commission; in accordance with 16 TAC §3.30 (relating to Memorandum of Understanding between the Railroad Commission of Texas (RRC) and the Texas Commission on Environmental Quality); or as is in 16 TAC §3.30; or(2) the recovery of brine product via evaporation of water sources other than groundwater and incidental storm water.</content><note type="source"><p>Source Note: The provisions of this §218.10 adopted to be effective October 16, 2008, 33 TexReg 8530.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c218/sc/s218.15"><num value="218.15">§218.15</num><heading>Authorization</heading><content>(a) An owner or operator must obtain an individual wastewater permit subject to the requirements of Chapter 305 of this title (relating to Consolidated Permits).(1) For new facilities, the owner or operator shall obtain an issued individual wastewater permit prior to construction of the facility.(2) For facilities in existence upon the effective date of this section, the owner or operator shall submit an application for an individual wastewater permit within 180 days of the effective date of this section.(b) An application for an individual wastewater permit must be submitted on the forms provided by the executive director in accordance with §305.45(a)(8) of this title (relating to Contents of Application for Permit) and must include:(1) a closure and post-closure plan developed in accordance with §218.25 of this title (relating to Closure and Post Closure Care); and(2) a cost estimate developed in accordance with §218.30 of this title (relating to Cost Estimate for Closure and Post Closure Care).(c) A new individual wastewater permit application or renewal, amendment, or modification of an existing permit is subject to the public notice requirements within Chapter 281 of this title (relating to Applications Processing).</content><note type="source"><p>Source Note: The provisions of this §218.15 adopted to be effective October 16, 2008, 33 TexReg 8530.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c218/sc/s218.20"><num value="218.20">§218.20</num><heading>Surface and Groundwater Protection</heading><content>(a) Location. The owner or operator shall ensure that the facility is located so that a failure of the facility or unauthorized discharge from the facility does not result in an adverse effect on water in the state.(1) A brine evaporation pit may not be located in the 100-year flood plain, unless protected from inundation and damage that may occur during that flood event in accordance with subsection (b)(4)(A) of this section.(2) The facility may not be located within:(A) 500 feet of a public water well as provided by §290.41(c)(1)(B) of this title (relating to Water Sources); nor(B) 250 feet of a private water well.(b) Design and Construction. The owner or operator of a brine evaporation pit shall ensure the facility is designed and constructed to prevent an unauthorized discharge into or adjacent to water in the state. An owner or operator shall not place or allow the placement of groundwater into a brine evaporation pit if the facility does not comply with the provisions of this subsection.(1) Brine Evaporation Pit Liner. The owner or operator shall ensure the brine evaporation pit is lined with a composite liner system in accordance with §330.331(e)(1) of this title (relating to Design Criteria) that meets at least the following minimum requirements.(A) The upper component must consist of a geomembrane liner at least 30 mil thick, and must be at least 60 mil thick if constructed of high density polyethylene.(B) The geomembrane liner component must be installed in direct and uniform contact with the compacted soil component.(C) The lower component must consist of at least a three-foot layer of re-compacted soil with a hydraulic conductivity of no more than 1 x 10-7 centimeters per second (cm/sec).(D) The composite liner system shall be designed by a licensed engineer.(E) The owner or operator shall furnish certification, signed, sealed, and dated by a licensed engineer that the completed liner meets the evaporation pit liner criteria described in this paragraph. Certification shall be submitted to the executive director at least 30 days prior to use.(2) Alternative liner. The owner or operator may apply for approval of an alternative brine evaporation pit liner. An alternative liner design may be authorized by the executive director if the owner or operator demonstrates the proposed alternate liner achieves an equivalent protective hydraulic conductivity which meets or exceeds the composite liner criteria. At the discretion of the executive director, a field demonstration may be required to prove the practicality and performance capabilities of an alternative liner design.(3) Storm Water Retention Ponds.(A) Storm water retention pond liners must consist of at least a three-foot layer of re-compacted soil with a hydraulic conductivity of no more than 1 x 10-7 cm/sec.(B) Storm water retention ponds must be capable of containing the volume of storm water runoff from brine product handling areas generated from a 24-hour, 25-year storm.(C) The owner or operator shall furnish certification, signed, sealed, and dated by a licensed engineer that the completed storm water retention pond liner meets the criteria described in this paragraph. Certification shall be submitted to the executive director at least 30 days prior to use.(4) Storm Water Controls. Storm water control structures must be properly constructed and maintained to prevent storm water from entering the brine evaporation pit.(A) A facility located in the 100-year flood plain must be equipped with storm water diversion structures at a minimum height equal to two feet above the 100-year flood water elevation around the evaporation pit.(B) A facility located above the 100-year flood plain shall be equipped with storm water diversion structures that are, at a minimum, capable of diverting all rainfall from a 24-hour, 25-year storm.(c) Operations and Maintenance.(1) The owner or operator shall at all times ensure that the facility is properly operated and maintained. This includes, but is not limited to, the regular, periodic examination of the brine evaporation pit liner, and storm water control and retention structures in order to prevent an unauthorized discharge.(2) Storm water that comes into contact with any brine product storage pile must be collected in a retention pond and recycled to the evaporation pit.(3) Loading and unloading of brine product must be conducted within an area which is adequately curbed and sloped to allow for containment of storm water runoff.(4) Storm water runoff from brine product loading and unloading areas must be collected in a lined retention pond and recycled to the evaporation pit.(5) The owner or operator shall have a licensed engineer review the documentation and evaluate the site at least once every five years or following a permit amendment resulting from a substantial change to the facility or operation.(6) The brine evaporation pit must maintain a two-foot freeboard at all times.(7) Operations and maintenance records must be retained at the facility site for a period of five years and be readily available for review by representatives of the executive director.</content><note type="source"><p>Source Note: The provisions of this §218.20 adopted to be effective October 16, 2008, 33 TexReg 8530.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c218/sc/s218.25"><num value="218.25">§218.25</num><heading>Closure and Post Closure Care</heading><content>(a) At closure, the owner or operator must:(1) remove or decontaminate all brine product waste and waste residues, contaminated design and operating system components such as liners, dikes, storm water retention structures, brine product handling areas, and contaminated media; or(2) eliminate free liquids by removing liquid wastes or solidifying the remaining wastes and waste residues; stabilize remaining wastes to a bearing capacity sufficient to support final cover; and cover the brine evaporation pit with a final cover designed and constructed to:(A) provide long-term minimization of the migration of liquids through the closed impoundment;(B) function with minimum maintenance;(C) promote drainage and minimize erosion or abrasion of the final cover;(D) accommodate settling and subsidence so that the cover's integrity is maintained; and(E) be constructed of at least a three-foot layer of re-compacted soil with a hydraulic conductivity of no more than 1 x 10-7 centimeters per second (cm/sec).(b) If some waste residues or contaminated materials are left in place at final closure, the owner or operator must comply with the following post-closure requirements:(1) maintain the integrity and effectiveness of the final cover including making repairs to the cap as necessary to correct the effects of settling, subsidence, erosion, or other events; and(2) prevent run-on and run-off from eroding or otherwise damaging the final cover.(c) Additional post closure requirements may be added by the executive director as determined to be necessary to protect human health and/or the environment; including but not limited to, groundwater monitoring.(d) The closure plan for the brine evaporation pit must include both a plan for complying with subsection (a)(1) of this section and a contingent plan for complying with subsection (a)(2) of this section, in case not all contaminated subsoils can be practicably removed at closure; and the owner or operator must prepare a contingent post-closure plan for complying with subsection (b) of this section, in case not all contaminated subsoils can be practicably removed at closure.(e) Written notification must be provided to the executive director at least 90 days prior to conducting any facility closure activity.(f) Within ten days after completion of final closure activities of a facility, the owner or operator shall submit to the executive director by registered mail the following:(1) a certification, signed by a licensed professional engineer, verifying that final facility closure has been completed in accordance with the approved closure plan. The submittal to the executive director shall include all applicable documentation necessary for certification of final facility closure; and(2) for a facility that does not require post-closure care, a request for voluntary revocation of the permit.</content><note type="source"><p>Source Note: The provisions of this §218.25 adopted to be effective October 16, 2008, 33 TexReg 8530.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c218/sc/s218.30"><num value="218.30">§218.30</num><heading>Cost Estimate for Closure and Post Closure Care</heading><content>(a) The owner or operator shall prepare a closure cost estimate based on the costs to the owner or operator of hiring a third party to close the facility. A third party is a party who is neither the parent nor a subsidiary of the owner or operator. Notwithstanding other closure costs, such estimate must also include the costs associated with third party removal, shipment off-site, and processing or disposal off-site, and processing or disposal off-site of the following wastes to an authorized storage, processing, or disposal facility:(1) maximum inventory of wastes in storage and/or processing units, including, but not limited to, storage surface impoundments, waste piles, tanks, and containers;(2) wastes generated as a result of closure activities (e.g. decontamination, removal of liquids from surface impoundments, or waste piles); and(3) contaminated storm water.(b) The cost estimates calculated for closure and post-closure care of a brine evaporation pit facility subject to this chapter must include the cost of complying with the contingent closure plan specified within §218.25(a)(2) of this title (relating to Closure and Post Closure Care) and the contingent post-closure plan specified within §218.25(b) of this title, but are not required to include the cost of expected closure under subsection §218.25(a)(1) of this title.</content><note type="source"><p>Source Note: The provisions of this §218.30 adopted to be effective October 16, 2008, 33 TexReg 8530.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c218/sc/s218.35"><num value="218.35">§218.35</num><heading>Financial Assurance</heading><content>An owner or operator of a brine evaporation pit shall establish and maintain financial assurance for closure and third party pollution liability in accordance with Chapter 37, Subchapter X of this title (relating to Financial Assurance for Brine Evaporation Pits). The amount of financial assurance for closure must be no less than the amount determined by the executive director as sufficient to meet the requirements of the cost estimate calculated in accordance with §218.30(b) of this title (relating to Cost Estimate for Closure and Post Closure Care).</content><note type="source"><p>Source Note: The provisions of this §218.35 adopted to be effective October 16, 2008, 33 TexReg 8530.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c218/sc/s218.40"><num value="218.40">§218.40</num><heading>Fees</heading><content>The owner or operator shall comply with the applicable fee requirements within Chapter 21 of this title (relating to Water Quality Fees).</content><note type="source"><p>Source Note: The provisions of this §218.40 adopted to be effective October 16, 2008, 33 TexReg 8530.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c220"><num value="220">CHAPTER 220</num><heading>REGIONAL ASSESSMENTS OF WATER QUALITY</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c220/scA"><num value="A">SUBCHAPTER A</num><heading>PROGRAM FOR MONITORING AND ASSESSMENT OF WATER QUALITY BY WATERSHED AND RIVER BASIN</heading><section identifier="/us/state/tx/tac/t30/p1/c220/scA/s220.1"><num value="220.1">§220.1</num><heading>Purpose and Scope</heading><content>(a) The purpose of this chapter is to establish procedures for the implementation of the Texas Clean Rivers Program under Texas Water Code (TWC), §26.0135, which commission program monitors and assesses water quality conditions that support water quality management decisions necessary to maintain and improve the quality of the state's water resources (as defined in TWC, §26.001(5)). The commission has the responsibility of ensuring that regional monitoring and assessments of water quality by watershed and river basin shall be conducted by the river authorities and designated local governments that have entered into cooperative agreements with the commission, or by the commission where a river authority does not exist or is unwilling to participate. Whenever feasible the monitoring and assessment will be the result of a cooperative partnership between river authorities, designated local governments, other political subdivisions, other state agencies, and the commission to provide the commission and other state agencies, river authorities, and local governments with sufficient information to take appropriate corrective action necessary to meet the goals of the TWC. The regional water quality monitoring and assessment program shall be designed to allow citizens and private organizations opportunities for involvement in protecting the state's water resources. The monitoring program shall provide data to identify significant, long-term water quality trends, characterize water quality conditions, support the wastewater discharge permitting process including support for the total maximum daily load process as necessary, and classify unclassified streams. The assessments must include a review of wastewater discharges, nonpoint source pollution, nutrient loading, toxic materials, biological health of aquatic life, public education and involvement in water quality issues, local and regional pollution prevention efforts, and other factors that affect water quality within the watershed.(b) A river authority or designated local government shall be eligible for reimbursement of the actual costs of administration of the Texas Clean Rivers Program and implementation of the provisions of this chapter. The schedule and amount of any reimbursement shall be based on an equitable apportionment among basins. The allocation procedure shall be reviewed periodically and may be adjusted to reflect results of contractor evaluations, to address emerging issues, or to focus on problem areas identified in the water quality assessments.</content><note type="source"><p>Source Note: The provisions of this §220.1 adopted to be effective October 6, 2002, 27 TexReg 9363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c220/scA/s220.2"><num value="220.2">§220.2</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings. Unless specifically defined for this chapter, definitions for other words and terms may be found in Chapter 3 of this title (relating to Definitions).(1) Assessment report--A comprehensive record of historical, existing, and projected water quality conditions of a watershed.(2) Designated local government--A local government that has been designated through cooperative agreement or contract with the commission to perform a regional assessment pursuant to this chapter.(3) Nonpoint source pollution--Generally results from land runoff, precipitation, atmospheric deposition, drainage, seepage, or hydrologic modification. Any source of pollution that is not subject to regulation as a "point source."(4) Pollution--The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of, any water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property or to public health, safety, or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful or reasonable purpose.(5) Quality assurance project plan (QAPP)--The formal document which describes in comprehensive detail the necessary quality assurance/quality control activities that must be implemented to ensure that results of work performed will satisfy stated performance criteria.(6) River authority--Any district or authority created by the legislature under Texas Water Code (TWC), §30.003, which contains an area within its boundaries of ten or more counties and any other river authority or special district created under Article III, §52 and Article XVI, §59 of the Texas Constitution, which are designated by rule of the commission to comply with this chapter.(7) River basins and coastal basins--The river basins and coastal basins now defined and designated by the Texas Water Development Board as separate units for the purposes of water development and inter-watershed transfers, and as they are made certain by contour maps on file in the offices of the Texas Water Development Board, including, but not limited to, the rivers and their tributaries, streams, water, coastal water, sounds, estuaries, bays, lakes and portions of them, as well as the lands drained by them.(8) Total Maximum Daily Load (TMDL)--Water quality-based process used to establish pollution control limits for waters not meeting water quality standards. The process is established under the federal Clean Water Act to establish control limits where technology-based controls are not adequate and should include determination of loading capacity, allocations of wasteload and loading from other pollutant sources, and an appropriate margin of safety.(9) Unclassified waters--Those waters for which no classification has been assigned and which have not been identified in Appendix A of §307.10 of this title (relating to Appendices A-E).(10) Wastewater permit--A permit issued by the commission under authority of TWC, Chapter 26, including those permits issued under the authority of TWC, Chapter 26 and other statutory provisions (such as the Texas Health and Safety Code, Chapter 361). For the purpose of this section, a permit shall include any authorization under TWC, Chapter 26 to treat or discharge wastewater, including a registration or permit by rule.(11) Water right--A right acquired under the laws of the state and the rules of the commission to impound, divert, or use state water.(12) Work plan--A document outlining the proposed scope of work, including a time schedule and cost expenditures, from a river authority or designated local government to perform a service and/or provide a comprehensive regional assessment of the watershed.</content><note type="source"><p>Source Note: The provisions of this §220.2 adopted to be effective October 6, 2002, 27 TexReg 9363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c220/scA/s220.3"><num value="220.3">§220.3</num><heading>Responsibilities of the Commission</heading><content>(a) The commission shall establish a program to provide oversight and evaluation of the strategic and comprehensive monitoring of water quality and the periodic assessment of water quality in each watershed and river basin of the state.(b) Subject to available funding described in Chapter 21 of this title (relating to Water Quality Fees), the commission shall develop cooperative agreements and contracts with river authorities and designated local governments to implement the Texas Clean Rivers Program. These contracts and cooperative agreements will be administered by the commission staff in accordance with the most recent State of Texas Uniform Grants and Contract Management Standards for State Agencies (Texas Government Code, Chapter 783) and any specific requirements of the applicable State General Appropriations Act.(c) As part of the administration of this program the commission will develop quality control/quality assurance procedures to insure that water quality data collected under this chapter will maintain statewide consistency and will become part of the statewide database to be used in establishing water quality management permitting decisions.(1) The commission will establish a schedule for review and approval of quality assurance plans and updates which describe procedures to be implemented by contracting agencies. Use of the quality assurance plans by commission program staff will assure that water quality monitoring data are collected consistent with statewide objectives.(2) The commission program staff will conduct periodic program audits of contractors and subcontractors using a risk-based procedure to insure adherence to the quality assurance procedures.(d) The commission has primary responsibility for implementation of water quality management functions and will implement these functions on a watershed basis in consideration of priorities established by river authorities and basin steering committees. Data collected in accordance with an approved quality assurance plan will be added to the statewide water quality database and used for the development and implementation of water quality management functions of the commission including review and revision of surface water quality standards and wastewater discharge permits.(e) The commission will utilize water quality assessments developed in this program, along with other water quality assessments and studies in determining the need for cities with populations of 10,000 or more to develop water pollution control and abatement programs to reduce water pollution from non-permitted sources.(f) The commission will assess and collect fees from wastewater permit holders and water right holders as described in Chapter 21 of this title and will apportion these funds equitably among the basins.</content><note type="source"><p>Source Note: The provisions of this §220.3 adopted to be effective October 6, 2002, 27 TexReg 9363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c220/scA/s220.4"><num value="220.4">§220.4</num><heading>Responsibilities of River Authorities and Designated Local Governments</heading><content>(a) Each river authority and designated local government that has entered into an agreement with the commission to perform duties under this chapter shall:(1) Organize and lead a basin-wide steering committee to assist with the development of water quality objectives and priorities for the basin and to fulfill responsibilities described in §220.5 of this title (relating Responsibilities of Steering Committees). Membership of the committee will reflect a diversity of interests in the basin and will include persons paying fees described under Chapter 21 of this title (relating to Water Quality Fees), the Texas State Soil and Water Conservation Board and other appropriate state agencies (for example, Texas Parks and Wildlife Department, Texas Water Development Board, Texas General Land Office, Texas Department of Health, Texas Department of Agriculture, Texas Railroad Commission, and the Texas Department of Transportation), private citizens, representatives from political subdivisions, and other persons with an interest in water quality matters in the watershed or river basin.(2) Develop and maintain a basin-wide water quality monitoring program that eliminates duplicative monitoring, facilitates the assessment process to identify problem areas and support long-term trend analyses, and targets monitoring to support the wastewater discharge permitting and standards process.(A) A quality assurance project plan must be developed and approved to support all data collection activities. Data collected by subcontractors and others under this program must conform to the approved quality assurance project plans.(B) The water quality monitoring program shall address collection of baseline water quality data to support trend analyses and development of the statewide water quality inventory required under federal Clean Water Act, §305(b).(C) The water quality monitoring program shall include site-specific data collection to support the wastewater discharge permitting process for fee payers in the basin.(D) The water quality monitoring program shall include watershed specific data collection to address priority water quality problem areas identified by river authority trends analyses or steering committee input.(3) Establish and maintain a watershed and river basin water quality database and/or clearinghouse composed of quality-assured data, river authority programs, wastewater discharge permit holders, state and federal agencies, and other relevant data sources. This data shall be submitted to the commission for inclusion in the State of Texas Surface Water Quality Monitoring database and shall be made available to any interested person.(A) Each river authority and designated local government shall establish and maintain the technology to aid in the electronic dissemination of water quality data and information for their basin. Water quality data for the basin shall be submitted to the commission at a minimum of once every six months in an agreed format for inclusion in the statewide water quality database.(B) River authorities and designated local governments shall participate in task force meetings to establish, review, and update data management procedures to reflect changes in information management technology.(4) Identify water quality problems and known pollution sources and set priorities for taking appropriate actions to eliminate those problems and sources.(A) Each river authority shall utilize the commission's procedures for data evaluation and analyses to the maximum extent possible. If alternative evaluation processes are necessary, the procedure must be presented in writing to the commission for approval by the executive director prior to its application.(B) In order to assure inclusion in the development of the statewide water quality inventory, the analytical procedures shall be comparable to those used by the commission.(C) Steering committees shall be provided the opportunity to actively participate in the identification of priority problem areas and the development of appropriate actions to address the problems and pollutant sources. Steering committees shall have the opportunity to determine the priority of maintaining or protecting watersheds with existing good quality water.(5) Develop a process for public participation that includes the basin steering committee and that provides for meaningful review and comments by private citizens and organizations in the local watersheds.(6) Recommend water quality management strategies for correcting identified water quality problems and pollution sources.(7) Develop work plans which include priorities of the state and regional water quality management program. Upon agreement between the commission, the river authority, and/or designated local government, the provisions of the work plan become the scope of work of the program contract or cooperative agreement.(b) Each local government or other agency that collects water quality data within the watershed shall cooperate with the river authority or designated local government in developing the basin monitoring plan and assessment by providing to the river authority all of the information available to that organization about water quality within its jurisdiction, including the extraterritorial jurisdiction of a municipality. Data collected by local governments must be consistent with an approved quality assurance plan to be included for wastewater discharge permitting and standards decisions.(c) Monitoring and assessment is a continuing duty and shall be revised periodically with appropriate amendments and updates to the quality assurance plans to reflect changes in procedures and factors subject to the assessment.</content><note type="source"><p>Source Note: The provisions of this §220.4 adopted to be effective October 6, 2002, 27 TexReg 9363; amended to be effective March 29, 2018, 43 TexReg 1868.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c220/scA/s220.5"><num value="220.5">§220.5</num><heading>Responsibilities of Steering Committees</heading><content>(a) The steering committee's role is advisory in nature and will involve assistance with the review of local issues and creation of priorities by watershed for the basin. Committee members should also assist with the review and development of work plans, reports, basin monitoring plans, and basin action plans for the basin.(b) A steering committee established by the commission and contractor to implement this program in areas without a river authority or other designated local government willing to carry out the program is not subject to Revised Statutes, Article 6252-33 (relating to agency advisory committees).(c) Steering committees should serve as the focus of public input to assist the river authorities and other agencies to develop water quality objectives and priorities by watershed and by basin that are achievable considering available technology and economic impact.</content><note type="source"><p>Source Note: The provisions of this §220.5 adopted to be effective October 6, 2002, 27 TexReg 9363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c220/scA/s220.6"><num value="220.6">§220.6</num><heading>Reporting Requirements</heading><content>(a) Summary reports. Once every third state fiscal biennium, in accordance with the schedule provided in the Texas Clean Rivers Program Guidance, as amended, each river authority will submit a written summary report to the commission, the State Soil and Water Conservation Board, and Texas Parks and Wildlife Department on the water quality of the watershed or river basin. (1) The summary report must identify concerns relating to the watershed or bodies of water, including an identification of bodies of water with impaired or potentially impaired uses, the cause and possible source or use impairment, and recommended actions that may be taken to address those concerns. (2) The summary report must discuss the public benefits from the water quality monitoring and assessment program, including efforts to increase public input in activities related to water quality and the effectiveness of targeted monitoring in assisting the permitting process. (3) Prior to submittal of the report to the agencies listed in subsection (a) of this section, the river authority will present the report to the basin steering committee for approval and will also make the report available to water right holder and wastewater permit holders for review and comment. (4) All comments regarding satisfaction with or suggestions for modification of the report for the watershed, the operation and/or effectiveness of the monitoring and assessment program, and the use of funds shall be considered, summarized, and submitted, along with the approved summary report, to the governor, the lieutenant governor, and the speaker of the house of representatives not later than 90 days after submission to the commission and other agencies listed in paragraphs (1) - (3) of this subsection. (b) Basin highlight reports. Each river authority and designated local government will develop a basin highlight report annually to be provided to each member of the basin steering committee and all fee payers within the basin. This report should summarize Texas Clean Rivers Program activities conducted in the basin. Procedures for electronic distribution should be developed to ensure most efficient availability to the public.</content><note type="source"><p>Source Note: The provisions of this §220.6 adopted to be effective October 6, 2002, 27 TexReg 9363; amended to be effective March 29, 2018, 43 TexReg 1868.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c220/scA/s220.7"><num value="220.7">§220.7</num><heading>Leveraging of Funds to Support Federal and State Grant Programs</heading><content>The commission, river authorities, and designated local governments may use funding from this chapter to leverage other state and federal program funds to support the overall water quality monitoring and assessment goals of this chapter.</content><note type="source"><p>Source Note: The provisions of this §220.7 adopted to be effective October 6, 2002, 27 TexReg 9363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c220/scA/s220.8"><num value="220.8">§220.8</num><heading>Allocation of Water Quality Fee Revenue for the Purpose of Regional Assessments of Water Quality</heading><content>(a) A river authority or designated local government shall be eligible for reimbursement of the costs of development of water quality assessments and implementation of the provisions of this chapter.(b) The schedule and amount of any reimbursement shall be determined by mutual agreement of the commission and the appropriate river authority or local government based on an approved water quality assessment report or work plan as required under §220.4 of this title (relating to Responsibilities of River Authorities and Designated Local Governments).</content><note type="source"><p>Source Note: The provisions of this §220.8 adopted to be effective October 6, 2002, 27 TexReg 9363.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c222"><num value="222">CHAPTER 222</num><heading>SUBSURFACE AREA DRIP DISPERSAL SYSTEMS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c222/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c222/scA/s222.1"><num value="222.1">§222.1</num><heading>Purpose and Scope</heading><content>The purpose of this chapter is to:(1) maintain the quality of fresh water in the state to the extent consistent with the public health and welfare and the operation of existing industries;(2) promote the beneficial reuse of commercial, industrial, and municipal wastewater for the economic development of the state, thereby reducing the demand on the state's supply of fresh water;(3) prevent underground injection that may pollute fresh water; and(4) require the use of all reasonable methods to implement this policy.</content><note type="source"><p>Source Note: The provisions of this §222.1 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scA/s222.3"><num value="222.3">§222.3</num><heading>Applicability</heading><content>(a) This chapter applies to any person who operates a wastewater dispersal system that:(1) injects processed commercial, industrial, or municipal wastewater effluent into the ground at a depth of not more than 48 inches; and(2) spreads the wastewater over the area so that the soil hydrologic absorption rate and crop/plant root absorption rate are not exceeded.(b) This chapter does not apply to:(1) wastewater disposal systems authorized under Chapter 285 of this title (relating to On-Site Sewage Facilities) and Texas Health and Safety Code (THSC), Chapter 366;(2) disposal systems for oil and gas waste, tar sands, sulfur, brine from desalination plants, and hazardous waste as defined by THSC, §361.003;(3) drainfields, leaching chambers, or other gravity trench systems;(4) subsurface drip irrigation systems that do not meet the definition of "Subsurface area drip dispersal systems," as defined in §222.5 of this title (relating to Definitions); or(5) systems regulated in §331.8 of this title (relating to Prohibition of Motor Vehicle Waste Disposal Wells and Large Capacity Cesspools).</content><note type="source"><p>Source Note: The provisions of this §222.3 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scA/s222.5"><num value="222.5">§222.5</num><heading>Definitions</heading><content>The definitions contained in Texas Water Code, §§26.001, 27.002, 28.001, and 32.003 apply to this chapter. The following words and terms, when used in this chapter, have the following meanings.(1) Aquifer--As defined or amended under Chapter 331 of this title (relating to Underground Injection Control).(2) Beneficial reuse credit--As defined by Chapter 309, Subchapter D of this title (relating to Beneficial Reuse Credit).(3) Buffer zone--The area between a subsurface area drip dispersal system boundary and surface water in the state, public and private water wells, and springs.(4) Crop requirement--The amount of nutrients that must be present in order to ensure that the crop nutrient needs are met, while accounting for nutrients that may become unavailable to the crop due to absorption to soil particles or other natural causes.(5) Domestic wastewater--Waste and wastewater from humans and household operations that are discharged to a wastewater collection system or otherwise enters a treatment facility. This includes waterborne human waste and waste from domestic activities such as washing, bathing, and food preparation, including graywater (as defined or amended in §210.82 of this title (relating to Definitions and General Requirements)) and blackwater.(6) Emitter--A device designed to discharge into the soil, a small uniform flow of water at a constant rate.(7) Evapotranspiration--The water lost from an area through the combined effects of evaporation from the ground surface and transpiration from the vegetation.(8) Facility--All land and fixtures, structures, or appurtenances used for storing, processing, treating, or disposing of wastewater, or for injection activities. A facility may consist of several storage, processing, treatment, disposal, or injection operational units.(9) Floodway--A channel of a river or watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the surface elevation more than one foot. Federal Emergency Management Agency maps are prima facie evidence of floodway locations.(10) Fresh water--As defined or amended under Texas Water Code, §27.002.(11) Groundwater--Subsurface water occurring in soils and geologic formations that are fully saturated year-round, seasonally, or intermittently.(12) Hazardous waste--Any solid waste identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency in accordance with the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 United States Code, §§6901 et seq., as amended.(13) Hydrologic connection--The connection and exchange between surface water and groundwater.(14) Industrial wastewater--Wastewater generated in a commercial or industrial process. (15) Infiltration--The passage of water through the soil surface into the soil profile.(16) Licensed professional engineer--An individual licensed by the Texas Board of Professional Engineers to engage in the practice of engineering in the state of Texas.(17) Licensed professional geoscientist--An individual licensed by the Texas Board of Professional Geoscientists in accordance with its requirement for professional practice in the state of Texas.(18) Local government--An incorporated city, county, river authority, groundwater conservation district, or a water district or authority acting under Texas Constitution, Article III, §52 or Article XVI, §59.(19) Owner--The person, corporation, partnership, or other legal entity that owns or partially owns a facility or part of a facility, or that owns or partially owns the land on which a facility or part of a facility is located.(20) Public contact--Contact with the soil over the dispersal zone by persons engaged in activities not associated with wastewater disposal. (21) Recharge feature--Those natural or artificial features either on or beneath the ground surface at the site that provide or create a significant hydrologic connection between the ground surface and the underlying groundwater within an aquifer. Significant artificial features include, but are not limited to, wells and excavation or material pits. Significant natural hydrologic connections include, but are not limited to: faults, fractures, karst features, or other macro pores that allow direct surface infiltration; a permeable or shallow soil material that overlies an aquifer; exposed geologic formations that are identified as an aquifer; or a water course bisecting an aquifer.(22) Soil--The upper layer of the surface of the earth that serves as a natural medium for the growth of plants.(23) Subsurface area drip dispersal systems--A wastewater disposal system that injects processed commercial, industrial, or municipal wastewater into the ground at a depth of not more than 48 inches and spreads the wastewater over a large enough area that the soil hydrologic absorption rate and crop/plant root absorption rate are not exceeded.(24) Surface water in the state--Water in the state as defined in Texas Water Code, §26.001(5), except that "groundwater, percolating or otherwise," is specifically excluded.</content><note type="source"><p>Source Note: The provisions of this §222.5 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c222/scB"><num value="B">SUBCHAPTER B</num><heading>ADMINISTRATIVE PROCEDURES</heading><section identifier="/us/state/tx/tac/t30/p1/c222/scB/s222.31"><num value="222.31">§222.31</num><heading>Application Process</heading><content>(a) An owner of a subsurface area drip dispersal system shall apply for a permit in accordance with the provisions of this section.(b) Application for a permit shall be made on forms provided by the executive director. Applicants shall comply with §§305.41, 305.43, 305.44, and 305.47 of this title (relating to Applicability; Who Applies; Signatories to Applications; and Retention of Application Data).(c) Upon receiving an administratively complete application for a permit, the executive director shall:(1) inspect the location of the proposed subsurface area drip dispersal system to evaluate the local conditions and the probable effect of the subsurface area drip dispersal system;(2) forward a copy of the permit application to the Texas Department of State Health Services for the purpose of soliciting comments on the application; and(3) allow 30 days for the Texas Department of State Health Services to submit comments on the permit application.(d) The applicant shall submit an application that demonstrates compliance with the requirements set forth in this chapter.(e) The applicant shall include the site preparation plan in the permit application packet. The site preparation plan shall comply with the requirements of §222.75 of this title (relating to Site Preparation Plan).(f) The applicant shall provide such additional information in support of the application as may be necessary, as determined by the executive director, for an adequate technical review of the application.(g) Each applicant and permittee shall comply with §305.61 and §§305.63 - 305.68 of this title (relating to Applicability; Renewal; Transfer of Permits; Renewal; Permit Denial, Suspension, and Revocation; Revocation and Suspension upon Request or Consent; and Action and Notice on Petition for Revocation or Suspension).(h) The permittee must file the application for renewal of an existing permit no later than 180 days before the expiration date of the current permit. Upon request, the executive director may grant an exception to this requirement, but in no case may the executive director grant permission for applications to be submitted later than the expiration date of the existing permit.(i) Except as provided in §222.33 of this title (relating to Public Notice), notice, public comment, and hearing on applications shall be conducted in accordance with commission rules governing individual permits issued under Texas Water Code (TWC), Chapter 26. Each permittee shall comply with §305.125 of this title (relating to Standard Permit Conditions).(j) A permittee who holds a valid permit for a subsurface area drip dispersal system under TWC, Chapter 26 issued prior to July 31, 2006, may apply for and be granted a variance from the site requirements and design criteria in this chapter, if the subsurface area drip dispersal system is:(1) not in need of repair;(2) not causing pollution as determined by the executive director;(3) not causing soil saturation or a build-up of waterborne constituents within the soil;(4) not prohibited by §213.8 of this title (relating to Prohibited Activities);(5) not prohibited by §331.8 of this title (relating to Prohibition of Motor Vehicle Waste Disposal Wells and Large Capacity Cesspools); and(6) the permittee is not a repeat violator or an unsatisfactory performer as defined in §60.2(f) and (g)(2) of this title (relating to Classification) or has other compliance history issues that may indicate the lack of ability of the permittee to comply with the permit and commission rules.(k) The executive director may grant a period of up to three years, in accordance with §305.127(3)(A) of this title (relating to Conditions to be Determined for Individual Permits) to meet the requirements that were the basis for a denial of a variance to a permittee that applies for and is denied a variance, provided that the system meets the requirements in subsection (j) of this section.</content><note type="source"><p>Source Note: The provisions of this §222.31 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scB/s222.33"><num value="222.33">§222.33</num><heading>Public Notice</heading><content>Applicants for subsurface area drip dispersal system permits shall comply with the regulations regarding public notice of applications for wastewater discharge permits found in Chapter 39 of this title (relating to Public Notice).</content><note type="source"><p>Source Note: The provisions of this §222.33 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scB/s222.35"><num value="222.35">§222.35</num><heading>Requests for Reconsideration and Contested Case Hearing and Public Comment</heading><content>Chapter 55, Subchapters D - F of this title (relating to Applicability and Definitions; Public Comment and Public Meetings; and Requests for Reconsideration or Contested Case Hearing) will apply to applications for permits authorizing subsurface area drip dispersal systems.</content><note type="source"><p>Source Note: The provisions of this §222.35 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scB/s222.37"><num value="222.37">§222.37</num><heading>Compliance History</heading><content>(a) A compliance history will be prepared and evaluated in accordance with Chapter 60 of this title (relating to Compliance History) for each of the following entities that have activities that are subject to regulation by the commission:(1) the owner of the wastewater treatment facility supplying effluent to the subsurface area drip dispersal system;(2) the owner of the land where a wastewater treatment facility supplying effluent to the subsurface area drip dispersal system is located;(3) the owner of the subsurface area drip dispersal system;(4) the owner of the land where a subsurface area drip dispersal system is located;(5) each business entity that is related to the applicant(s). Business entities are related for the purposes of this requirement, if the business entities share:(A) the same owner(s) or partial owner(s); or(B) the same member(s) of a partnership; or(6) each business entity that is managed by the permittee.(b) If the owner of a subsurface area drip dispersal system is a governmental body or a subdivision of that governmental body, a compliance history will be prepared for that governmental body, such as:(1) a city;(2) a county;(3) a branch of military service;(4) a state or federal agency, commission, or department; or(5) a quasi-governmental agency created by federal or state legislatures.</content><note type="source"><p>Source Note: The provisions of this §222.37 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scB/s222.39"><num value="222.39">§222.39</num><heading>Term of the Permit</heading><content>The term of the permit shall not exceed ten years, in accordance with §305.127 of this title (relating to Conditions To Be Determined for Individual Permits).</content><note type="source"><p>Source Note: The provisions of this §222.39 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scB/s222.41"><num value="222.41">§222.41</num><heading>Right of Entry</heading><content>Inspection and entry shall be allowed under Texas Water Code, Chapters 26 - 28 and 32, Texas Health and Safety Code, §§361.032, 361.033, 361.037, and 401.063, and 40 Code of Federal Regulations, §122.41(i). The statements in Texas Water Code, §26.014 and §32.151, that commission entry of a facility shall occur in accordance with an establishment's rules and regulations concerning safety, internal security, and fire protection is not grounds for denial or restriction of entry to any part of the facility, but merely describes the commission's duty to observe appropriate rules and regulations during an inspection.</content><note type="source"><p>Source Note: The provisions of this §222.41 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scB/s222.43"><num value="222.43">§222.43</num><heading>Construction Notices to Regional Offices</heading><content>(a) The permittee shall notify the appropriate Texas Commission on Environmental Quality (TCEQ) regional office at least 30 days prior to the date field layout and/or construction startup is scheduled to begin.(b) If soils are to be imported, the permittee shall notify the TCEQ regional office at least 30 days prior to completion of the soil importing project.(c) The permittee shall notify the appropriate TCEQ regional office at least 30 days prior to the date that construction is projected to be complete.(d) The permittee shall notify the appropriate TCEQ regional office within 30 days after operation of the subsurface area drip dispersal system begins.</content><note type="source"><p>Source Note: The provisions of this §222.43 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scB/s222.45"><num value="222.45">§222.45</num><heading>Local Health Department Notification</heading><content>(a) Before commencing operation of the subsurface area drip dispersal system, the permittee must submit a copy of the permit to the health department with jurisdiction in the area where the system is located.(b) The permittee must retain proof of delivery for the duration of the permit.</content><note type="source"><p>Source Note: The provisions of this §222.45 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c222/scC"><num value="C">SUBCHAPTER C</num><heading>SITING REQUIREMENTS AND EFFLUENT LIMITATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c222/scC/s222.71"><num value="222.71">§222.71</num><heading>Site Selection</heading><content>Site selection of a proposed subsurface area drip dispersal system is subject to the requirements in §309.12 of this title (relating to Site Selection to Protect Groundwater or Surface Water).</content><note type="source"><p>Source Note: The provisions of this §222.71 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scC/s222.73"><num value="222.73">§222.73</num><heading>Soil Evaluation</heading><content>(a) The applicant shall conduct and submit, with the application, a soils evaluation to identify the soils associated with the proposed site. At least one profile hole per soil type must be included in the evaluation. The applicant shall use soil borings, where appropriate, for enhancement of the profile hole determinations. The profile holes used in the site evaluation must be no more than five feet deep, or to the first continuous lateral lithic contact. The evaluation must include the following information:(1) total depth of the profile hole;(2) primary rooting depth;(3) secondary rooting depth;(4) horizon descriptions which shall include:(A) depth of the horizon;(B) soil texture;(C) soil structure;(D) soil color;(E) mottling; and(F) percent coarse fragments;(5) boundary descriptions (soil horizons);(6) restrictive horizons;(7) potential water bearing zones; and(8) active water bearing zones.(b) The soil evaluation shall be performed by a licensed professional engineer or licensed professional geoscientist.</content><note type="source"><p>Source Note: The provisions of this §222.73 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scC/s222.75"><num value="222.75">§222.75</num><heading>Site Preparation Plan</heading><content>The applicant shall develop and submit, with the permit application, a site preparation plan that illustrates how site preparation will alleviate potential site-specific limitations and ensure suitability for the subsurface area drip dispersal system. This plan must include the following if applicable:(1) a site plan to minimize rainfall run-on and maximize rainfall runoff from the dispersal zones;(2) design criteria to compensate for any restrictive horizons within the soil column;(3) soil importation with descriptions of the chemical and physical characteristics of the proposed import material; and(4) any planned removal of existing vegetation.</content><note type="source"><p>Source Note: The provisions of this §222.75 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scC/s222.77"><num value="222.77">§222.77</num><heading>Protection of Groundwater</heading><content>(a) A subsurface area drip dispersal system shall not pollute groundwater quality.(b) If groundwater is present beneath the site of a proposed subsurface area drip dispersal system, the executive director may require that the baseline quality of the groundwater be documented by:(1) sampling the quality of the first occurrence of groundwater on site for a minimum of two sample events at least 30 days apart; or(2) an alternative method submitted by the applicant and approved by the executive director.(c) The executive director may impose continuing groundwater monitoring at a particular subsurface area drip dispersal system site.</content><note type="source"><p>Source Note: The provisions of this §222.77 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scC/s222.79"><num value="222.79">§222.79</num><heading>Recharge Feature Plan</heading><content>For new facilities and facilities undergoing an expansion of the subsurface area drip dispersal system, the applicant must supply a recharge feature plan with the application that is signed and sealed by a licensed professional engineer or a licensed professional geoscientist who has inspected the site of the proposed subsurface area drip dispersal system. The recharge feature plan must:(1) document the presence or absence of any recharge features identified on any tracts of land owned, operated, controlled, rented, or leased by the applicant and to be used as a part of the facility;(2) list the sources and methods used to identify the presence or absence of recharge features. At a minimum, the licensed professional engineer or geoscientist must review the records and maps maintained by the following sources:(A) Railroad Commission of Texas;(B) a groundwater conservation district, if applicable;(C) Texas Water Development Board;(D) the commission;(E) Natural Resources Conservation Service;(F) a previous owner of the site, if available; and(G) on-site inspection;(3) provide a narrative description of the site-specific geology and groundwater at the facility. The narrative must include, at a minimum, the following information:(A) a site-specific description of the geologic formations underlying the facility;(B) the depth to groundwater;(C) the general direction of groundwater flow;(D) potential uses of the groundwater and any known uses of the groundwater within a 1/2 mile radius of the perimeter of the proposed subsurface area drip dispersal system site; and(E) any well drillers' logs and water quality data obtained for wells on the subsurface area drip dispersal system site and within 500 feet of the property line; and(4) identify measures to prevent impacts to groundwater from any recharge features present. The licensed professional engineer or licensed professional geoscientist must include at least one of the following in the plan:(A) provisions for the installation of the necessary and appropriate protective measures for each located recharge feature, including berms, buffer zones, or other equivalent protective measures; or(B) submission of a detailed groundwater monitoring plan covering all of the affected facility, including the subsurface area drip dispersal system. The plan shall monitor the first occurrence of groundwater. At a minimum, the groundwater monitoring plan shall specify the location of proposed monitoring wells including a minimum of two wells downgradient of the subsurface area drip dispersal systems, procedures to collect a groundwater sample from representative wells, the proposed constituents to be included in the sampling plan, and frequency of the sampling event; and, provide for any other similar method or approach demonstrated by the applicant to be protective of any associated recharge feature and approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §222.79 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scC/s222.81"><num value="222.81">§222.81</num><heading>Buffer Zone Requirements</heading><content>(a) The permittee must locate the subsurface area drip dispersal system a minimum horizontal distance of:(1) 500 feet from public water wells, springs, or other similar sources of public drinking water;(2) 150 feet from private water wells; and(3) 100 feet from surface water in the state.(b) The permittee must locate the wastewater treatment plant unit in accordance with §290.41(c)(1)(B) of this title (relating to Water Sources) and §309.13(c) of this title (relating to Unsuitable Site Characteristics).(c) Buffer variance.(1) The executive director may grant a variance to a permittee operating a subsurface area drip dispersal system under an existing authorization issued prior to November 1, 2006, to continue the operation and use of any existing subsurface area drip dispersal system located within the buffer zones listed in this section provided that the system:(A) is in compliance with the recharge feature plan required by §222.79 of this title (relating to the Recharge Feature Plan); or(B) is certified by a licensed professional engineer or licensed professional geoscientist determining that the existing buffers will be protective of water quality.(2) The permittee shall maintain documentation authorizing variances of buffer zones on-site for the duration of the permit and make it available to executive director staff upon request.(d) The permittee shall not locate a subsurface area drip dispersal system within a floodway. The permittee shall provide the source of all data for determination of the floodway locations and include a copy of the relevant Federal Emergency Management Agency (FEMA) flood map or the calculations and maps used where a FEMA map is not available.</content><note type="source"><p>Source Note: The provisions of this §222.81 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scC/s222.83"><num value="222.83">§222.83</num><heading>Hydraulic Application Rate</heading><content>(a) The permittee must demonstrate in the engineering report and ensure that the hydraulic application rate for a subsurface area drip dispersal system meets one of the following.(1) The hydraulic application rate shall not exceed 0.1 gallons per square foot per day for a subsurface area drip dispersal system located west of the boundary shown in Figure 1 in paragraph (2) of this subsection, and using a vegetative cover of non-native grasses that are over seeded with cool season grasses in the winter months (October - March).(2) The hydraulic application rate for a subsurface area drip dispersal system located east of the boundary shown in Figure 1 of this paragraph or in any part of the state when the vegetative cover is any crop other than non-native grasses, the permittee shall use the equations in Figure 2 or 3 of this paragraph to establish the rate.Attached GraphicAttached GraphicAttached Graphic(3) The applicant must calculate the hydraulic application rate for each month of the year. A monthly water balance is computed that includes soil moisture storage. Any available soil moisture is carried over to the next month. The maximum application rate is exceeded when the total hydraulic loading (rainfall and irrigation) exceeds the total of the available soil moisture storage, the actual water requirement of crop (inches per month), and leaching.Attached Graphic(4) The permittee may use an alternative method to calculate the hydraulic application rate with approval from the executive director.(b) The nitrogen application rate for a subsurface area drip dispersal system must be calculated using the anticipated nitrogen concentration of wastewater effluent prior to land application.(1) The permittee must calculate the allowable annual hydraulic loading rate based on nitrogen limits using the equation in this paragraph.Attached Graphic(2) Upon request by the applicant, the executive director may approve other fractions of applied nitrogen removed based upon special conditions relating to a proposed site, if justified in the engineering report.(c) The result obtained from calculation of the allowable annual hydraulic loading rate that is based upon nitrogen limits must be compared to the hydraulic loading rate that is based on crop need and soil water holding capacity in the figure in subsection (a)(3) of this section. The more restrictive of the two calculations will set the maximum hydraulic application rate.(d) The volume of wastewater used when calculating the disposal area required based on the hydraulic application rate as described in this section may be reduced by the beneficial reuse credit, as calculated in accordance with Chapter 309, Subchapter D of this title (relating to Beneficial Reuse Credit) and approved by the commission.(e) The disposal site area required may not be reduced by more than 50% of what the disposal site requirement would be using the permitted flow without the beneficial reuse credit.</content><note type="source"><p>Source Note: The provisions of this §222.83 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scC/s222.85"><num value="222.85">§222.85</num><heading>Effluent Quality</heading><content>(a) Protection of fresh water. The applicant must demonstrate that both surface and subsurface fresh water will not be polluted by the application of wastewater by the subsurface area drip dispersal system.(b) Domestic wastewater.(1) The permittee shall maintain the pH of the effluent within the limits of 6.0 - 9.0 standard units immediately prior to dispersal, unless a specific variance is approved by the executive director based upon site-specific conditions.(2) When a subsurface area drip dispersal system applies effluent on land where there is the potential for public contact with the soil, the permittee shall comply with Effluent Set 4 located in §309.4 of this title (relating to Table 1, Effluent Limitations for Domestic Wastewater Treatment Plants), or with more stringent effluent limitations prescribed by the executive director, if warranted to protect human health or the environment.(3) When a subsurface area drip dispersal system applies effluent on land where there is not the potential for public contact with the soil, the permittee shall comply with Effluent Set 5 located in §309.4 of this title, or with more stringent effluent limitations prescribed by the executive director, if warranted to protect human health or the environment.(4) Disinfection.(A) Permittees applying treated effluent to land where there is the potential for public contact with the soil must disinfect the effluent prior to it entering the subsurface area drip dispersal system in accordance with §309.3(g) of this title (relating to Application of Effluent Sets).(B) If the effluent is to be transferred to a holding pond or tank prior to dispersal, the permittee shall ensure that the effluent meets the relevant criteria of §222.87 of this title (relating to Effluent Limitations) at the time it enters the distribution system.(C) Permittees are allowed to use ultraviolet disinfection systems only with effluent having a daily average five-day biochemical oxygen demand concentration and total suspended solids concentration that are less than 20 milligrams per liter each.(5) The permittee must comply with requirements other than those specified in this section, if determined by the executive director to be necessary to protect human health.</content><note type="source"><p>Source Note: The provisions of this §222.85 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scC/s222.87"><num value="222.87">§222.87</num><heading>Effluent Limitations</heading><content>(a) Domestic wastewater. The permittee shall comply with the effluent limitations in §309.3 and §309.4 of this title (relating to Application of Effluent Sets and Table 1, Effluent Limitations for Domestic Wastewater Treatment Plants) and any specific effluent limitations placed in the permit by the executive director.(b) Industrial wastewater.(1) The permittee is prohibited from introducing the following wastes into a subsurface area drip dispersal system:(A) characteristically hazardous wastes as determined in 40 Code of Federal Regulations (CFR) Part 261, Subpart C;(B) listed hazardous wastes as defined in 40 CFR Part 261, Subpart D;(C) wastes specifically prohibited for land disposal in 40 CFR Part 268, Subpart C; and(D) wastes containing radioactive materials unless the permittee is authorized to store, process, and dispose of these wastes in compliance with the Atomic Energy Act of 1954 (as amended) or in compliance with the Texas Radiation Control Act.(2) Effluent limitations.(A) The permittee shall comply with the effluent limitations established by the executive director in an individual permit.(B) The permittee shall demonstrate compliance with technology-based effluent limitations by monitoring the effluent prior to introduction into the subsurface area drip dispersal system.(C) If the soil pH is less than 6.5 standard units at a subsurface area drip dispersal system site, the permittee shall monitor certain trace elements, including phosphorus, fluoride, and heavy metals as specified by the executive director in the individual permit.(D) Prior to disposal, the permittee shall ensure that the effluent from a treatment system meets Effluent Set 5, established in §309.4 of this title.</content><note type="source"><p>Source Note: The provisions of this §222.87 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c222/scD"><num value="D">SUBCHAPTER D</num><heading>DESIGN CRITERIA</heading><section identifier="/us/state/tx/tac/t30/p1/c222/scD/s222.111"><num value="222.111">§222.111</num><heading>General Provisions</heading><content>(a) This subchapter applies to any person who proposes to design and construct a facility that will treat or dispose of domestic or municipal wastewater and who uses a subsurface area drip dispersal system. This subchapter is not applicable to treatment facilities constructed for the purposes of complying with a commission-issued industrial wastewater permit, but is applicable to a subsurface area drip dispersal system if it is associated with an industrial wastewater treatment facility.(b) This subchapter establishes the minimum design criteria pertaining to effluent quality necessary to meet state water quality standards. Plans, specifications, and reports for a proposed domestic wastewater project must conform to the requirements of this subchapter.(c) The applicant for a permit for a domestic wastewater treatment facility with a subsurface area drip dispersal system shall submit to the executive director an engineering report, including the plans and specifications, that meets the requirements found in this subchapter. Construction must not begin on a facility with approved plans and specifications until the executive director issues a wastewater permit, unless the commission authorizes the applicant to construct before permit issuance, under Texas Water Code, §26.027(c).(d) The executive director may approve a variance from any of the design criteria in this subchapter. In accordance with §222.113 of this title (relating to Engineering Report), the applicant shall submit with the engineering report the variance request, and the technical justification for the design change and the way in which the change is at least as protective of human health and the environment as the required design criteria.(e) Approval of the submitted engineering report, plans, or specifications by the executive director does not relieve the permittee of any liabilities or responsibilities associated with designing, constructing, and operating the subsurface area drip dispersal system and the associated treatment facility in accordance with applicable commission rules and in a manner that protects human health and the environment.</content><note type="source"><p>Source Note: The provisions of this §222.111 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scD/s222.113"><num value="222.113">§222.113</num><heading>Engineering Report</heading><content>The applicant shall submit an engineering report that includes the plans and specifications that:(1) has been prepared by a licensed professional engineer;(2) addresses the proposed design, hydraulic and organic loadings, and the basis for the design for the subsurface area drip dispersal system and the treatment system;(3) a scale drawing of all land that is to be part of the subsurface area drip dispersal system showing the location of all existing and proposed facilities to include the following:(A) buildings;(B) dispersal zones;(C) treatment facilities;(D) effluent storage; and(E) the buffer zones that demonstrate compliance with §222.81 of this title (relating to Buffer Zone Requirements);(4) includes the site topography;(5) includes storm water run-on prevention and storm water runoff accommodation; and(6) includes any variance requests with supporting documentation.</content><note type="source"><p>Source Note: The provisions of this §222.113 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scD/s222.115"><num value="222.115">§222.115</num><heading>Treatment System</heading><content>(a) For the systems and processes used to provide treatment of domestic wastewater prior to the wastewater entering the subsurface area drip dispersal system the applicant shall use the design criteria in Chapter 217 of this title (relating to Design Criteria for Domestic Wastewater Systems) or Chapter 317 of this title (relating to Design Criteria Prior to 2008) as applicable.(b) If using septic tanks as the treatment system, the applicant shall design, construct, and install the tanks in accordance with Chapter 285, Subchapter D of this title (relating to Planning, Construction, and Installation Standards for OSSFs).(c) If using anaerobic biological reactors (ABRs) as the treatment system, the permittee must comply with the following criteria.(1) The ABR must have a container that is a structural unit such as a concrete tank, or an earthen berm with a membrane liner may be used for larger installations.(A) The container must be designed for the internal and external stresses that may be placed on the container during fabrication and use.(B) Materials used to construct an ABR structural container must meet the requirements for septic tanks in §285.32 of this title (relating to Criteria for Sewage Treatment Systems).(C) Containers using compacted earthen berms must use a membrane of vinyl or other plastic with a minimum thickness of 40 mils as the waterproofing component.(D) A cover is required unless a covering layer of gravel or other media is placed above the liquid level to present a dry surface.(2) The ABR must have media that is inert, stable, of uniform size, and free of fines.(A) Clean washed gravel, crushed rock, or plastic filter media made for trickling filter use is acceptable.(B) Minimum media effective size must be one inch and the uniformity coefficient must be less than 3.0.(3) The ABR must have a distribution system over the bottom of the ABR and a collection system near the top of the ABR.(A) The piping for the distribution system must be constructed of pipe that:(i) is class 200 or schedule 40 polyvinyl chloride (PVC);(ii) meets ASTM International (ASTM) Standards D-2241 or D-1785; and(iii) has a one-inch nominal diameter.(B) The ABR must incorporate a sight well that allows monitoring the liquid level in the unit.(C) The ABR must have a means to flush and remove excessive biomat buildup from the media.(d) If using sand filters as the treatment system, the permittee shall use sand filters that have the following components and meet the following requirements.(1) Sand filters must be contained in a structural unit designed for all internal and external stresses that may be placed on the containment device during fabrication and use such as:(A) a septic tank unit that meets the requirements in Chapter 285, Subchapter D of this title;(B) a poured in place concrete structure; or(C) an earthen berm with an impermeable membrane liner that has a minimum thickness of 40 mils and an under-drain leak detection system.(2) The permittee shall use a detention time of at least 24 hours for dosing to a sand filter at rates up to ten gallons per day per square foot.(3) All sand filter containment devices shall provide sufficient freeboard above the filter surface to hold four dosing volumes.(4) A sand filter must have a collection pipe system to collect the filtered effluent that meets the following requirements.(A) The piping shall be arranged so that the maximum horizontal travel distance of water through the under-drain media is less than four feet.(B) The collection piping and the drain pipe from the filter shall be sized to remove a filter dose volume from the filter within a ten-minute period.(C) The ends of the collection lines shall be extended above the surface of the filter to allow aeration of the drained filter.(D) The collection piping system shall be constructed of pipe that:(i) is class 200 or schedule 40 PVC;(ii) meets ASTM Standards D-2241 or D-1785; and(iii) has a two-inch nominal diameter.(E) The sand filter media must:(i) be an inert, clean washed material that is free of fines, dirt, and organic material;(ii) have an effective size and uniformity coefficient suitable for the design loading rate;(iii) have a depth based on the effective grain size and the design effluent quality with coarse media requiring a greater media depth; and(iv) be placed on top of a bottom drain media.(F) The sand filter bottom media must:(i) cover the effluent collection piping;(ii) have an effective grain size from two to four times the effective grain size of the filter media; and(iii) support the filter media, prevent washout, and hydraulic removal of the filter media.(5) The surface distribution mechanism must distribute the liquid to be filtered over the surface of the filter in a uniform manner.(A) If a filter receives the liquid by gravity, distribution shall be accomplished by troughs or channels using splash pads to reduce surface erosion.(B) Pressure-dosed sand filters must have a distribution system that:(i) provides even distribution of the liquid;(ii) consists of a pipe network with discharge holes or spray nozzles; and(iii) provides a uniform pressure at the discharge outlets.(6) Loading rates and filter sizing must be designed to treat the specific characteristics of the incoming wastewater and the effluent quality.(7) The loading rate shall be designed based on the influent qualities, the selected media, and the acceptable run time between filter media cleaning or replacement.(e) The permittee must submit a design that specifies the minimum frequency for solids removal from the treatment system and the justification of the frequency based on the type of system and good engineering practice.(f) The permittee shall design the treatment system with the capacity to process the peak flow from the wastewater producer. The following criteria shall be the basis to determine peak flow:(1) wastewater design values will be determined in accordance with §217.32 of this title (relating to Organic Loadings and Flows for New Wastewater Treatment Facilities); or §317.4(a)(1) or (2) of this title (relating to Wastewater Treatment Facilities); or(2) the peak flows of the particular wastewater generator when the wastewater generator has unusually high peak flows.</content><note type="source"><p>Source Note: The provisions of this §222.115 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scD/s222.117"><num value="222.117">§222.117</num><heading>Subsurface Area Drip Dispersal System Design</heading><content>(a) The permittee shall use the following design components for subsurface area drip dispersal systems:(1) a minimum of dual 100-micron wastewater effluent filters prior to the effluent entering the subsurface area drip dispersal system. These filters must:(A) effectively filter the peak hydraulic flows; and(B) include control valves and piping that provide filtered effluent to flush the filters;(2) the dosing tank(s) designed to hold at least the following volume:(A) the daily design capacity required by the permit;(B) effluent equal to six times the minimum dose cycle capacity of the drip lines plus the capacity of the supply and return manifold; and(C) the following storage capacities as part of the dosing tank(s) or included in the plant design at another location:(i) flow equalization storage;(ii) emergency storage; and(iii) return flows from flushing and system drainage;(3) a duplex alternating pumping system designed:(A) to dose and flush the dispersal zones and flush the filtration system; and(B) with pumps sized in accordance with the hydraulic design calculations in §222.83 of this title (relating to Hydraulic Calculations);(4) control system components that are capable of performing the following functions:(A) flushing of the filter units;(B) delivering a specified preprogrammed volume of effluent to each dispersal zone;(C) flushing of each drip lateral with filtered effluent;(D) dosing of chemicals intended to reduce emitter clogging, such as chlorine or oxidizing chemicals;(E) monitoring alarm conditions;(F) regulating the flow volume to each dispersal zone and to a sand filter, when applicable;(G) indicating a flow variance when flow varies more than 10% of the actual average daily flow;(H) regulating pump run times;(I) regulating the number and time of filter backwash and field flushing cycles; and(J) regulating the flows to the drip irrigation field system;(5) supply lines and manifolds;(6) zones of drip irrigation tubing;(7) effluent manifolds;(8) chemical dosing equipment; and(9) flush return lines that return flushing water to the pre-application system, with provisions made to minimize disturbance of any solids in the settling chamber.(b) The permittee shall submit the hydraulic calculations for the pump and distribution system with the engineering report. The report must address the following.(1) Field pressure and flow variation due to friction loss and changes in static head must not exceed plus or minus 10% of the design emitter pressure or flow. The 10% difference must be the difference between any two emitters in the entire system after the start-up process is complete.(2) The system must be equipped an alarm system for high and low flow conditions and an automatic mechanism to shut down the dispersal system for pressure and flow conditions that would indicate abnormal fluid dynamics were occurring.(c) The permittee shall design the subsurface area drip dispersal system to supply the effluent uniformly throughout each of the dispersal zones in the system.(d) The permittee shall design the subsurface area drip dispersal system to be self-draining to prevent freezing if there is a potential for the soil to freeze to the depth that the pipes and lines of the subsurface area drip dispersal system are located.(e) The permittee shall ensure that the velocity of the flush water shall be at least two feet per second at the end of each dispersal zone or return line during the flushing operation.(f) The permittee shall equip the system with a backflow prevention device to prevent the siphoning of soil and water into the emitters.(g) The permittee must establish stormwater run-on controls to minimize infiltration of precipitation into the dispersal zones.</content><note type="source"><p>Source Note: The provisions of this §222.117 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scD/s222.119"><num value="222.119">§222.119</num><heading>Delivery Systems</heading><content>(a) The permittee shall ensure that piping materials used in delivering treated effluent from the treatment facility to the dispersal zones are suitable for effluent and conform to regulations as required by Chapter 217 of this title (relating to Design Criteria for Domestic Wastewater Systems) or Chapter 317 of this title (relating to Design Criteria Prior to 2008) as applicable.(b) The permittee shall identify the piping materials by referring to the appropriate ASTM International, American National Standard Institute, or American Water Works Association specification numbers.(c) A permittee shall use a multiple pump system for all systems requiring pumping of effluent to the dispersal zones.(1) The permittee shall use pumps rated by the manufacturer for effluent disposal.(2) The permittee shall use pumps that are each rated for at least 100% of the design flow.(3) The permittee shall include the pumping capacity and pump head calculations in the plans and specifications.(d) The permittee shall ensure that the pump discharge piping includes a check valve, union, and gate valve for each submersible pump installed.(e) The permittee shall use piping and valves made of corrosion-resistant materials for applications subject to corrosive gases.(f) If self-priming pumps are used for subsurface area drip dispersal systems, the permittee shall use pumps that meet at least the minimum requirements listed under §217.61 of this title (relating to Lift Station Pumps) or §317.3 of this title (relating to Lift Stations), with the exception that the pumps are not required to meet the solids-handling requirement.(g) The permittee shall include a check and gate valve for each unit of the discharge piping for self-priming pumps.</content><note type="source"><p>Source Note: The provisions of this §222.119 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scD/s222.121"><num value="222.121">§222.121</num><heading>Dispersal Zones</heading><content>(a) The permittee must place lines with emitters between six and 48 inches below the surface of the soil.(b) The permittee shall divide the subsurface area drip dispersal system into a sufficient number of different dispersal zones (at least two dispersal zones) so that the system can operate with the greater of either one dispersal zone or 10% of the total number of dispersal zones out of service.(c) The permittee shall design the dispersal zones so that the dispersal lines follow the contour of the site and shall not exceed 1% lateral slope.(d) The permittee shall include the dispersal zone design in the engineering report, including the following elements:(1) the proposed line layout with:(A) main line sizes and lengths; and(B) individual dispersal line lengths;(2) flushing flows;(3) static head calculations;(4) the total proposed flow in gallons per day;(5) total length of emitter piping;(6) emitter spacing;(7) line spacing;(8) total number of lines; and(9) total number of lines to be included per flushing.(e) The permittee shall ensure that emitter and tubing spacing is on not less than one foot centers and on not greater than three feet centers, unless an exception is approved by the executive director.(f) The permittee shall disinfect the drip lines and emitters according to the degree and frequency determined by the design engineer and submitted in the engineering report along with the justification for the degree and frequency of disinfection.(g) The permittee shall equip the subsurface area drip dispersal system with audible and visual alarms that will activate in case of a problem with the system.(1) If the subsurface area drip dispersal system is not staffed on a daily basis, the permittee shall equip the system with a telemetry device that notifies the operator in case of a system malfunction.(2) The telemetry system must include the following components:(A) remote access;(B) audio/visual alarms for:(i) flow or pressure variances; or(ii) system failure;(C) automated filter;(D) zone flushing; and(E) integrated external monitoring devices if required, such as soil moisture monitors.</content><note type="source"><p>Source Note: The provisions of this §222.121 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scD/s222.123"><num value="222.123">§222.123</num><heading>Controls</heading><content>(a) The permittee shall use a control system that includes a means of alternating the pumps on successive cycles.(b) The permittee shall use a control system with the following features:(1) high water alarm that activates prior to any "lag pump on" activation;(2) pump failure alarm;(3) power outage alarm;(4) mechanisms for testing and silencing the alarm system; and(5) manual resetting after the alarm activates.(c) The permittee shall ensure that all controls recommended by the manufacturer are present and in working order if using a proprietary control system.(d) The permittee shall use telemetering of the alarms.(e) The permittee shall house controls in a weatherproof and intruder-resistant enclosure.(f) The permittee shall use controls that meet Underwriter's Laboratories requirements.(g) The permittee shall ensure that installation, maintenance, and replacement of parts of the control system are performed in accordance with the National Electrical Code and all applicable federal, state, and local codes, regulations, and ordinances.</content><note type="source"><p>Source Note: The provisions of this §222.123 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scD/s222.125"><num value="222.125">§222.125</num><heading>Vertical Separation</heading><content>The permittee must maintain the following vertical separation distances beneath the subsurface area drip dispersal system.(1) There must be at least five feet of soil over any sand or gravel strata.(2) There must be at least one foot of soil over any restrictive soil horizons.(3) There must be at least two feet of soil over any permanent or seasonal saturated zone of groundwater.(4) The executive director may impose alternate separation requirements if necessary to protect human health and the environment.</content><note type="source"><p>Source Note: The provisions of this §222.125 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scD/s222.127"><num value="222.127">§222.127</num><heading>Storage</heading><content>(a) The applicant must design and install temporary storage that equals at least three days of the design flow of the facility for times when the subsurface area drip dispersal system is out of service due to an emergency or scheduled maintenance.(b) In lieu of temporary storage, the executive director may approve an alternate method of disposing of effluent, if an alternate disposal plan is submitted by the applicant.(c) The volume of wastewater used when calculating the required effluent storage as described in this section may not be reduced by the beneficial reuse credit.</content><note type="source"><p>Source Note: The provisions of this §222.127 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c222/scE"><num value="E">SUBCHAPTER E</num><heading>OPERATIONS AND MAINTENANCE</heading><section identifier="/us/state/tx/tac/t30/p1/c222/scE/s222.151"><num value="222.151">§222.151</num><heading>Prohibitions</heading><content>(a) Seepage or percolation out of the root zone, other than leaching in the amount required to maintain the health of the vegetative cover, is prohibited.(b) Surfacing or ponding of effluent is prohibited.(c) Creating a condition at the treatment facility or the drip dispersal zones that contributes to vector attraction or odor is prohibited.</content><note type="source"><p>Source Note: The provisions of this §222.151 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scE/s222.153"><num value="222.153">§222.153</num><heading>System Flushing</heading><content>The permittee shall flush the subsurface area drip dispersal system from the dispersal zone and return the flush water to a point preceding the treatment system at least once every two months.</content><note type="source"><p>Source Note: The provisions of this §222.153 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scE/s222.155"><num value="222.155">§222.155</num><heading>Soil Moisture Monitoring</heading><content>(a) The permittee shall comply with any requirement to monitor soil moisture to address specific soil limitations associated with a particular site, if included in the permit by the executive director.(b) When required by the executive director, the permittee shall:(1) monitor the soil moisture in each broadly defined soil characterization or soil textures, with at least one sample from each dispersal zone; and(2) monitor the soil moisture at the one-foot depth, and/or at the level of existing near-surface seasonal or permanent soil saturation when either of these zones of saturation occur within the two-foot depth, below the dispersal zone.</content><note type="source"><p>Source Note: The provisions of this §222.155 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scE/s222.157"><num value="222.157">§222.157</num><heading>Soil Sampling</heading><content>(a) The permittee shall take soil samples within the same 45-day time frame each calendar year.(b) Laboratory analyses of the soil samples must be submitted to the executive director by September 1 following the sampling date.(c) The plant nutrient parameters shall be analyzed on a plant available basis. The permittee shall provide annual soil analyses of the dispersal zones for the following substances:(1) pH (sample consisting of two volumes of water to one volume of soil mixture), in standard units;(2) conductivity (sample consisting of two volumes of water to one volume of soil mixture), reported in millimho per centimeter;(3) total Kjeldahl nitrogen. Methods that rely on mercury as a catalyst are not acceptable;(4) nitrate-nitrogen;(5) plant-available potassium, reported on a dry-weight basis in milligrams per kilogram (mg/kg);(6) calcium, reported on a dry-weight basis in mg/kg;(7) magnesium, reported on a dry-weight basis in mg/kg;(8) sulfur, reported on a dry-weight basis in mg/kg;(9) phosphorus, analyzed according to the Mehlich III procedure (the North American Proficiency Testing Program of the Soil Science Society of America) and reported on a dry-weight basis in mg/kg;(10) sodium, reported on a dry-weight basis in mg/kg;(11) salinity; and(12) trace elements as specified in the individual permit.(d) The permittee shall take samples in:(1) the zero to 12-inch zone of the soil; and(2) the 12- to 24-inch zone of soil in the disposal area.(e) If soil conditions or weather preclude sampling within the time period required, the permittee may submit a request to sample at another time. The request must include justification for the schedule change and the replacement schedule.(f) Alternate soil sampling depths and frequency may be approved by the executive director if the permittee demonstrates that the alternate depths and frequency sufficiently monitors nutrient levels.(g) The permittee shall collect soil composite samples from each broadly defined soil characterization or texture, as defined by the United States Department of Agriculture.(h) The permittee shall take at least one composite soil sample from each dispersal zone.(i) The permittee must comply with any alternate sampling methods or schedules required by the executive director.</content><note type="source"><p>Source Note: The provisions of this §222.157 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scE/s222.159"><num value="222.159">§222.159</num><heading>Operator Licensing</heading><content>(a) The permittee shall ensure that the facility supplying treated domestic wastewater to the subsurface area drip dispersal system and the subsurface area drip dispersal system is operated by a chief operator holding a valid Class A, B, or C wastewater operator license as defined in Chapter 30 of this title (relating to Occupational Licenses and Registrations).(b) The permittee shall ensure that all wastewater operators have been trained to operate the specific treatment system and subsurface area drip dispersal system for which they have responsibility.(c) Records of operator training must be made available to executive director staff upon request.</content><note type="source"><p>Source Note: The provisions of this §222.159 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scE/s222.161"><num value="222.161">§222.161</num><heading>Vegetative Cover</heading><content>(a) The vegetative cover must be suited for the specific site characteristics, proposed site usage, and quality of effluent.(b) The permittee shall plant and maintain a cover crop(s) that provides year-round vegetative growth.(c) The permittee shall include in the engineering report the specific varieties of vegetation, harvest methods, and harvest frequencies to be utilized in association with the subsurface area drip dispersal system.(d) The permittee shall maintain records documenting all activities associated with maintaining the vegetative cover, like planting, over-seeding, mowing height, fertilizing, and harvesting. Documentation shall be maintained for a minimum of five years and be made available to commission staff upon request.</content><note type="source"><p>Source Note: The provisions of this §222.161 adopted to be effective July 5, 2006, 31 TexReg 5308.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c222/scE/s222.163"><num value="222.163">§222.163</num><heading>Closure Requirements</heading><content>(a) The permittee of a subsurface area drip dispersal system that is to be permanently discontinued or abandoned shall close the system under the standards set forth in this section.(b) If the permittee removes all tanks, lines, and other equipment from the site, the permittee may:(1) submit to the appropriate regional office a closure report prepared by the permittee that includes sufficient soil analyses to demonstrate that there is no soil contamination at the subsurface area drip dispersal system site; and(2) omit the requirement to deed record the location of the closed subsurface area drip dispersal system as required by subsection (f) of this section.(c) The permittee must conduct the closure according to a system closure plan that is prepared by or under the direct supervision of a licensed professional engineer or licensed professional geoscientist.(d) The permittee must close the system in a manner that prohibits the movement of fluids into underground sources of drinking water, in compliance with §331.5 of this title (relating to Prevention of Pollution) and 40 Code of Federal Regulations §144.12, concerning Prohibition of Movement of Fluid into Underground Sources of Drinking Water.(1) The permittee must remove all aboveground tanks. The permittee may remove or empty, collapse in place, and cover with clean fill material any underground tanks.(2) The permittee must cap and remove three feet of the end sections of pipes that convey wastewater between the pump house and the dispersal lines. The permittee must cut and cap pipes every 500 linear feet between the pump house and the dispersal field.(3) The permittee shall remove all valves and plug the lines where the valves are located.(e) If soil, gravel, sludge, liquids, or other materials associated with the system are contaminated, the material must be disposed or otherwise managed in accordance with Chapter 350 of this title (relating to Texas Risk Reduction Program) and all other applicable federal, state, and local regulations and requirements.(f) The permittee must deed record the location of the closed subsurface area drip dispersal system in the deed records of the county in which the site is located.(g) The permittee shall submit, within 60 days after closing the system, a closure report:(1) that has been prepared by a licensed professional engineer or licensed professional geoscientist;(2) that certifies that closure was in accordance with the requirements of this section and in a manner that will prevent pollution; and(3) includes evidence of deed recordation.</content><note type="source"><p>Source Note: The provisions of this §222.163 adopted to be effective July 5, 2006, 31 TexReg 5308; amended to be effective January 9, 2020, 45 TexReg 363.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c230"><num value="230">CHAPTER 230</num><heading>GROUNDWATER AVAILABILITY CERTIFICATION FOR PLATTING</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c230/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c230/sc/s230.1"><num value="230.1">§230.1</num><heading>General</heading><content>(a) Purpose. This chapter establishes the form and content of a certification to be attached to a plat application under Texas Local Government Code, §212.0101 or §232.0032, which requires certification that adequate groundwater is available for a proposed subdivision if groundwater under that land is to be the source of water supply. These rules do not replace:(1) other state and federal requirements applicable to public drinking water supply systems;(2) the authority of counties within designated priority groundwater management areas under Texas Water Code, §35.019; or(3) the authority of groundwater conservation districts under Texas Water Code, Chapter 36.(b) Transmittal of data. Copies of the information, estimates, data, calculations, determinations, statements, and certification required by §230.8 of this title (relating to Obtaining Site-Specific Groundwater Data), §230.9 of this title (relating to Determination of Groundwater Quality), §230.10 of this title (relating to Determination of Groundwater Availability), and §230.11 of this title (relating to Groundwater Availability and Usability Statements and Certification) must be provided with the certification to:(1) the executive administrator of the Texas Water Development Board, and(2) the applicable groundwater conservation district or districts.(c) Plat Attesting Form. The Plat Attesting Form (TCEQ-20983) must be submitted with the certification, attesting that copies of the information, estimates, data, calculations, determinations, statements, and the certification have been provided to:(1) the executive administrator of the Texas Water Development Board, and(2) the applicable groundwater conservation district or districts.</content><note type="source"><p>Source Note: The provisions of this §230.1 adopted to be effective July 9, 2000, 25 TexReg 6345; amended to be effective Februay 13, 2003, 28 TexReg 1206; amended to be effective July 31, 2008, 33 TexReg 5933; amended to be effective December 11, 2024, 49 TexReg 9986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c230/sc/s230.2"><num value="230.2">§230.2</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. If a word or term used in this chapter is not contained in this section, it shall have the same definition and meaning as used in the practices applicable to hydrology and aquifer testing.(1) Applicable groundwater conservation district or districts--Any district or authority created under Texas Constitution, Article III, Section 52, or Article XVI, Section 59, that:(A) has the authority to regulate the spacing of water wells, the production from water wells, or both, and(B) which includes within its boundary any part of the plat applicant's proposed subdivision.(2) Aquifer--A geologic formation, group of formations, or part of a formation that contains water in its voids or pores and may be used as a source of water supply.(3) Aquifer test--A test involving the withdrawal of measured quantities of water from or addition of water to a well and the measurement of resulting changes in water level in the aquifer both during and after the period of discharge or addition for the purpose of determining the characteristics of the aquifer. For the purposes of this chapter, bail and slug tests are not considered to be aquifer tests.(4) Certification--A written statement of best professional judgement or opinion submitted on the Certification of Groundwater Availability for Platting Form (TCEQ-20982) and attested to on the Plat Attesting Form (TCEQ-20983).(5) Drinking water standards--As defined in commission rules covering drinking water standards contained in Chapter 290, Subchapter F of this title (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Systems).(6) Full build out--The final expected number of residences, businesses, or other dwellings in the proposed subdivision.(7) Licensed professional engineer--An engineer who maintains a current license through the Texas Board of Professional Engineers in accordance with its requirements for professional practice.(8) Licensed professional geoscientist--A geoscientist who maintains a current license through the Texas Board of Professional Geoscientists in accordance with its requirements for professional practice.(9) Plat applicant--The owner or the authorized representative or agent seeking approval of a proposed subdivision plat application pursuant to municipal or county authority.(10) Requirements applicable to public drinking water supply systems--The requirements contained in commission rules covering public drinking water supply systems in Chapter 290, Subchapter D of this title (relating to Rules and Regulations for Public Water Systems).</content><note type="source"><p>Source Note: The provisions of this §230.2 adopted to be effective July 9, 2000, 25 TexReg 6345; amended to be effective Februay 13, 2003, 28 TexReg 1206; amended to be effective July 31, 2008, 33 TexReg 5933; amended to be effective December 11, 2024, 49 TexReg 9986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c230/sc/s230.3"><num value="230.3">§230.3</num><heading>Certification of Groundwater Availability for Platting</heading><content>(a) Preparation of the certification. The certification required by this chapter must be prepared by a Texas licensed professional engineer or a Texas licensed professional geoscientist.(b) Certification Requirements. The certification must meet the requirements of §§230.4 - 230.11 (relating to Certification of Groundwater Availability for Platting, Administrative Information, Proposed Subdivision Information, Projected Water Demand Estimate, General Groundwater Resource Information, Obtaining Site-Specific Groundwater Data, Determination of Groundwater Quality, Determination of Groundwater Availability, and Groundwater Availability and Usability Statements and Certification) of this chapter.(c) Submission of information. The certification of adequacy of groundwater under the subdivision required by this chapter must be submitted to the following:(1) the municipal or county authority,(2) the executive administrator of the Texas Water Development Board, and(3) the applicable groundwater conservation district or districts.(d) Form required. The certification required by this chapter must be submitted on the Certification of Groundwater Availability for Platting Form (TCEQ-20982).</content><note type="source"><p>Source Note: The provisions of this §230.3 adopted to be effective July 9, 2000, 25 TexReg 6345; amended to be effective Februay 13, 2003, 28 TexReg 1206; amended to be effective July 31, 2008, 33 TexReg 5933; amended to be effective December 11, 2024, 49 TexReg 9986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c230/sc/s230.4"><num value="230.4">§230.4</num><heading>Administrative Information</heading><content>At a minimum, the following general administrative information must be provided for a proposed subdivision for which groundwater under the land will be the source of water supply:(1) the name of the proposed subdivision;(2) any previous or other name(s) which identifies the tract of land;(3) the name, address, phone number, email address, and facsimile number of the property owner or owners;(4) the name, address, phone number, email address, and facsimile number of the person submitting the plat application;(5) the name, address, phone number, email address, facsimile number, and registration number of the licensed professional engineer or the licensed professional geoscientist preparing the certification as required in this chapter;(6) the location and property description of the proposed subdivision;(7) the tax assessor parcel number(s) by book, map, and parcel; and(8) the name, address phone number, email address, and facsimile number of the applicable groundwater conservation district or districts.</content><note type="source"><p>Source Note: The provisions of this §230.4 adopted to be effective July 9, 2000, 25 TexReg 6345; amended to be effective Februay 13, 2003, 28 TexReg 1206; amended to be effective December 11, 2024, 49 TexReg 9986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c230/sc/s230.5"><num value="230.5">§230.5</num><heading>Proposed Subdivision Information</heading><content>At a minimum, the following information pertaining to the proposed subdivision must be provided:(1) the purpose of the proposed subdivision, for example, single family residential, multi-family residential, non-residential, commercial, or industrial;(2) the size of the proposed subdivision in acres;(3) the number of proposed lots within the proposed subdivision;(4) the average size (in acres) of the proposed lots in the proposed subdivision;(5) the anticipated method of water distribution to the proposed lots in the proposed subdivision including, but not limited to:(A) an expansion of an existing public water supply system to serve the proposed subdivision (if groundwater under the subdivision is to be the source of water supply);(B) a new public water supply system for the proposed subdivision;(C) individual water wells to serve individual lots; or(D) a combination of methods;(6) if the anticipated method of water distribution for the proposed subdivision is from an expansion of an existing public water supply system or from a proposed public water supply system, evidence required under §290.39(c)(1) of this title (relating to Rules and Regulations for Public Water Systems) must be provided demonstrating that written application for service was made to the existing water providers within a 1/2-mile radius of the subdivision; and(7) any additional information required by the municipal or county authority as part of the plat application.</content><note type="source"><p>Source Note: The provisions of this §230.5 adopted to be effective July 9, 2000, 25 TexReg 6345; amended to be effective December 11, 2024, 49 TexReg 9986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c230/sc/s230.6"><num value="230.6">§230.6</num><heading>Projected Water Demand Estimate</heading><content>(a) Residential water demand estimate. Residential water demand estimates at full build out must be provided. Residential demand estimates must, at a minimum, be based on the current demand of any existing residential well including those identified under §230.8(b) of this title (relating to Obtaining Site-Specific Groundwater Data), or §290.41(c) of this title (relating to Rules and Regulations for Public Water Systems), and:(1) the number of proposed housing units at full build out;(2) the average number of persons per housing unit;(3) the gallons of water required per person per day;(4) the water demand per housing unit per year (acre feet per year); and(5) the total expected residential water demand per year for the proposed subdivision (acre feet per year).(b) Non-residential water demand estimate. Water demand estimates at full build out must be provided for all non-residential uses. Non-residential uses must be specified by type of use and groundwater demand per year (acre feet per year) for each type of use. The estimate must also include the existing non-residential demand of any well including those identified under §230.8(b) of this title or §290.41(c) of this title.(c) Total annual water demand estimate. An estimate of the total expected annual groundwater demand, including residential and non-residential estimates at full build out (acre feet per year), must be provided.(d) Submission of information. The sources of information used and calculations performed to determine the groundwater demand estimates as required by this section must be made available to the municipal or county authority if requested. The plat applicant must provide any additional groundwater demand information required by the municipal or county authority as part of the plat application.</content><note type="source"><p>Source Note: The provisions of this §230.6 adopted to be effective July 9, 2000, 25 TexReg 6345; amended to be effective December 11, 2024, 49 TexReg 9986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c230/sc/s230.7"><num value="230.7">§230.7</num><heading>General Groundwater Resource Information</heading><content>(a) Aquifer identification. Using Texas Water Development Board aquifer names, the aquifer(s) underlying the proposed subdivision which is planned to be used as the source of water for the subdivision must be identified and generally described.(b) Geologic and groundwater information. To meet the requirements of this chapter, the following geologic and groundwater information must be considered in planning and designing the aquifer test:(1) the stratigraphy of the geologic formations underlying the subdivision;(2) the lithology of the geologic strata;(3) the geologic structure;(4) the characteristics of the aquifer(s) and their hydraulic relationships;(5) the recharge to the aquifer(s), and movement and discharge of groundwater from the aquifer(s); and(6) the ambient quality of water in the aquifer(s).</content><note type="source"><p>Source Note: The provisions of this §230.7 adopted to be effective July 9, 2000, 25 TexReg 6345; amended to be effective December 11, 2024, 49 TexReg 9986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c230/sc/s230.8"><num value="230.8">§230.8</num><heading>Obtaining Site-Specific Groundwater Data</heading><content>(a) Applicability of section. This section is applicable only if the proposed method of water distribution for the proposed subdivision is individual water wells on individual lots. If expansion of an existing public water supply system or installation of a new public water supply system is the proposed method of water distribution for the proposed subdivision, site-specific groundwater data must be developed under the requirements of Chapter 290, Subchapter D of this title (relating to Rules and Regulations for Public Water Systems) and the information developed in meeting these requirements must be attached to the Certification of Groundwater Availability for Platting Form (TCEQ-20982).(b) Location of existing wells. All known existing, abandoned, and inoperative wells within the proposed subdivision must be identified, located, and mapped by on-site surveys. Existing well locations must be illustrated on the plat required by the municipal or county authority.(c) Aquifer testing. Utilizing the information considered under §230.7(b) of this title (relating to General Groundwater Resource Information), an aquifer test must be conducted to characterize the aquifer(s) underlying the proposed subdivision. The aquifer test must provide sufficient information to allow evaluation of each aquifer that is being considered as a source of residential and non-residential water supply for the proposed subdivision. Appropriate aquifer testing must be based on typical well completions. An aquifer test conducted under this section utilizing established methods must be reported and must include, but not be limited to, the following items.(1) Test well and observation well(s). At a minimum, one test well (i.e., pumping well) and one observation well, must be required to conduct an adequate aquifer test under this section. Additional observation wells must be used for the aquifer test if it is practical or necessary to confirm the results of the test. The observation well(s) must be completed in the same aquifer or aquifer production zone as the test well. The locations of the test and observation well(s) must be shown on the plat required by the municipal or county authority.(2) Location of wells. The test and observation well(s) must be placed within the proposed subdivision and must be located by latitude and longitude. The observation well(s) must be located at a radial distance such that the time-drawdown data collected during the planned pumping period fall on a type curve of unique curvature. In general, observation wells in unconfined aquifers should be placed no farther than 300 feet from the test well, and no farther than 700 feet in thick, confined aquifers. The observation well should also be placed no closer to the test well than two times the thickness of the aquifer's production zone. The optimal location for the observation well(s) can be determined by best professional judgement after completion and evaluation of the test well as provided in paragraph (4) of this subsection.(3) Lithologic and geophysical logs. The test and observation wells must be lithologically and geophysically logged to map and characterize the geologic formation(s) and the aquifer(s) in which the aquifer test(s) is to be performed.(A) A lithologic log must be prepared showing the depth of the strata, their thickness and lithology (including size, range, and shape of constituent particles as well as smoothness), occurrence of water bearing strata, and any other special notes that are relevant to the drilling process and to the understanding of subsurface conditions.(B) Geophysical logs must be prepared which provide qualitative information on aquifer characteristics and groundwater quality. At a minimum, the geophysical logs must include an electrical log with shallow and deep-investigative curves (e.g., 16-inch short normal/64-inch long normal resistivity curves or induction log) with a spontaneous potential curve.(C) The municipal or county authority may, on a case-by-case basis, waive the requirement of geophysical logs as required under this section if it can be adequately demonstrated that the logs are not necessary to characterize the aquifer(s) for testing purposes.(4) Well development and performance. The test and observation well(s) must be developed prior to conducting the aquifer test to repair damage done to the aquifer(s) during the drilling operation. Development must ensure that the hydraulic properties of the aquifer(s) are restored as much as practical to their natural state.(A) Well development procedures applied to the well(s) may vary depending on the drilling method used and the extent of the damage done to the aquifer(s).(B) During well development, the test well must be pumped for several hours to determine the specific capacity of the well, the maximum anticipated drawdown, the volume of water produced at certain pump speeds and drawdown, and to determine if the observation well(s) are suitably located to provide useful data.(C) Water pumped out of the well during well development must not be allowed to influence initial well performance results.(D) Aquifer testing required by this section must be performed before any acidization or other flow-capacity enhancement procedures are applied to the test well.(5) Protection of groundwater. All reasonably necessary precautions must be taken during construction of test and observation wells to ensure that surface contaminants do not reach the subsurface environment and that undesirable groundwater (water that is injurious to human health and the environment or water that can cause pollution to land or other waters) if encountered, is sealed off and confined to the zone(s) of origin.(6) Duration of aquifer test and recovery. The duration of the aquifer test depends entirely on local and geologic conditions. However, the test must be of sufficient duration to observe a straight-line trend on a plot of water level versus the logarithm of time pumped. Water pumped during the test must not be allowed to influence the test results. Aquifer testing must not commence until water levels (after well development) have completely recovered to their pre-development level or at least to 90% of that level.(A) At a minimum, a 24-hour uniform rate aquifer test must be conducted. Testing must continue long enough to observe a straight-line trend on a plot of water level versus the logarithm of time pumped. If necessary, the duration of the test should be extended beyond the 24-hour minimum limit until the straight-line trend is observed.(i) If it is impractical to continue the test until a straight-line trend of water level versus the logarithm of time pumped is observed within the 24-hour limit, the test must continue at least until a consistent pumping-level trend is observed. In such instances, failure to observe the straight-line trend must be recorded.(ii) If the pumping rates remain constant for a period of at least four hours and a straight-line trend is observed on a plot of water level versus the logarithm of time pumped before the 24-hour limit has been reached, the pumping portion of the test may be terminated.(iii) The frequency of water level measurements during the aquifer test must be such that adequate definition of the time-drawdown curve is made available. As much information as possible must be obtained in the first ten minutes of testing (i.e., pumping).(B) Water-level recovery data must be obtained to verify the accuracy of the data obtained during the pumping portion of the test. Recovery measurements must be initiated immediately at the conclusion of the pumping portion of the aquifer test and must be recorded with the same frequency as those taken during the pumping portion of the aquifer test. Time-recovery measurements must continue until the water levels have recovered to pre-pumping levels or at least to 90% of that level. If such recovery is not possible, time-recovery measurements should continue until a consistent trend of recovery is observed.(7) Use of existing wells and aquifer test data.(A) An existing well may be utilized as an observation well under this section if sufficient information is available for that well to demonstrate that it meets the requirements of this section.(B) The municipal or county authority may accept the results of a previous aquifer test in lieu of a new test if:(i) the previous test was performed on a well located within a 1/4-mile radius of the subdivision;(ii) the previous test fully meets all the requirements of this section;(iii) the previous test was conducted on an aquifer which is being considered as a source of water supply for the proposed subdivision; and(iv) aquifer conditions (e.g., water levels, gradients, etc.) during the previous test were approximately the same as they are presently.(8) Need for additional aquifer testing and observation wells. Best professional judgement must be used to determine if additional observation wells or aquifer tests are needed to adequately demonstrate groundwater availability. The Theis and Cooper-Jacob nonequilibrium equations, and acceptable modifications thereof, are based on well documented assumptions. To determine if additional information is needed, best professional judgement must be used to consider these assumptions, the site-specific information derived from the aquifer test required by this section, the size of the proposed subdivision, and the proposed method of water delivery.(d) Submission of information. The information, data, and calculations required by this section must be made available to the municipal or county authority, if requested, to document the requirements of this section as part of the plat application.</content><note type="source"><p>Source Note: The provisions of this §230.8 adopted to be effective July 9, 2000, 25 TexReg 6345; amended to be effective December 11, 2024, 49 TexReg 9986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c230/sc/s230.9"><num value="230.9">§230.9</num><heading>Determination of Groundwater Quality</heading><content>(a) Water quality analysis. Water samples must be collected near the end of the aquifer test for chemical analysis. Samples must be collected from each aquifer being considered for water supply for the proposed subdivision and reported on or attached to the Certification of Groundwater Availability Form (TCEQ-20982).(1) For proposed subdivisions where the anticipated method of water delivery is from an expansion of an existing public water supply system or a new public water supply system, the samples must be submitted for bacterial and chemical analysis as required by Chapter 290, Subchapter F of this title (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements For Public Water Systems).(2) For proposed subdivisions where the anticipated method of water delivery is from individual water supply wells on individual lots, samples must be analyzed for the following:(A) chloride;(B) conductivity;(C) fluoride;(D) iron;(E) nitrate (as nitrogen);(F) manganese;(G) pH;(H) sulfate;(I) total hardness;(J) total dissolved solids; and(K) presence/absence of total coliform bacteria.(3) Conductivity and pH values may be measured in the field, and the other constituents must be analyzed in a laboratory accredited by the agency according to Chapter 25, Subchapters A and B of this title (relating to General Provisions and Environmental Testing Laboratory Accreditation, respectively) or certified by the agency according to Chapter 25, Subchapters A and C of this title (relating to General Provisions and Environmental Testing Laboratory Certification, respectively).(b) Submission of information. The information, data, and calculations required by this section must be made available to the municipal or county authority, if requested, to document the requirements of this section as part of the plat application.</content><note type="source"><p>Source Note: The provisions of this §230.9 adopted to be effective July 9, 2000, 25 TexReg 6345; amended to be effective July 31, 2008, 33 TexReg 5933; amended to be effective December 11, 2024, 49 TexReg 9986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c230/sc/s230.10"><num value="230.10">§230.10</num><heading>Determination of Groundwater Availability</heading><content>(a) Time frame for determination of groundwater availability. At a minimum, both a short- and long-term determination of groundwater availability must be made, each considering the estimated total water demand at full build out of the proposed subdivision. Groundwater availability must be determined for ten years and 30 years and for any other time frame(s) required by the municipal or county authority.(b) Other considerations in groundwater availability determination. Groundwater availability determinations must take into account the anticipated method of water delivery as identified under §230.5 of this title (relating to Proposed Subdivision Information) and will be compared to annual demand estimates at full build out as determined under §230.6 of this title (relating to Projected Water Demand Estimate).(c) Determination of aquifer parameters. The parameters of the aquifer(s) being considered to supply water to the proposed subdivision must be determined utilizing the information considered under §230.7 of this title (relating to General Groundwater Resource Information) and data obtained during the aquifer test required under one of the following: (1) §230.8 of this title (relating to Obtaining Site-Specific Groundwater Data) for individual water wells or (2) Chapter 290, Subchapter D of this title (relating to Rules and Regulations for Public Water Systems) for new and existing public water systems. The parameters must be reported on or attached to the Certification of Groundwater Availability Form (TCEQ-20982). The time-drawdown and time-recovery data obtained during the aquifer test must be used to determine aquifer parameters utilizing the nonequilibrium equations developed by Theis or Cooper-Jacob, or acceptable modifications thereof. The following aquifer parameters must be determined:(1) rate of yield and drawdown;(2) specific capacity;(3) efficiency of the pumped (test) well;(4) transmissivity;(5) coefficient of storage;(6) hydraulic conductivity;(7) recharge or barrier boundaries, if any are present; and(8) thickness of the aquifer(s).(d) Determination of groundwater availability. Using the information and data identified and determined in subsections (b) and (c) of this section, the following calculations must be made.(1) Time-drawdown. The amount of drawdown at the pumped well(s) and at the boundaries of the proposed subdivision must be determined for the time frames identified under subsection (a) of this section.(2) Distance-drawdown. The distance(s) from the pumped well(s) to the outer edges of the cone(s)-of-depression must be determined for the time frames identified under subsection (a) of this section.(3) Well interference. For multiple wells in a proposed subdivision, calculations must be made to:(A) determine how pumpage from multiple wells will affect drawdown in individual wells for the time frames identified under subsection (a) of this section; and(B) determine a recommended minimum spacing limit between individual wells and well yields from the wells that will allow for the continued use of the wells for the time frames identified under subsection (a) of this section.(e) Determination of groundwater quality. The water quality analysis required under §230.9 of this title (relating to Determination of Groundwater Quality) must be compared to primary and secondary public drinking water standards and the findings documented on or attached to the Certification of Groundwater Availability Form (TCEQ-20982).(f) Submission of information. The information, data, and calculations required by this section must be made available to the municipal or county authority, if requested, to document the requirements of this section as part of the plat application.</content><note type="source"><p>Source Note: The provisions of this §230.10 adopted to be effective July 9, 2000, 25 TexReg 6345; amended to be effective December 11, 2024, 49 TexReg 9986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c230/sc/s230.11"><num value="230.11">§230.11</num><heading>Groundwater Availability and Usability Statements and Certification</heading><content>(a) Groundwater availability and usability statements. Based on the information developed under §230.10 of this title (relating to Determination of Groundwater Availability), the following information must be provided on or attached to the Certification of Groundwater Availability Form (TCEQ-20982):(1) the estimated drawdown of the aquifer at the pumped well(s) over a ten-year period and over a 30-year period;(2) the estimated drawdown of the aquifer at the subdivision boundary over a ten-year period and over a 30-year period;(3) the estimated distance from the pumped well(s) to the outer edges of the cone(s)-of-depression over a ten-year period and over a 30-year period;(4) the recommended minimum spacing limit between wells and the recommended well yield; and(5) the sufficiency of available groundwater quality to meet the intended use of the platted subdivision.(b) Groundwater availability determination conditions. The assumptions and uncertainties that are inherent in the determination of groundwater availability must be clearly identified. These conditions must be identified to adequately define the basis for the availability and usability statements. These conditions may include, but are not limited to, uncontrollable and unknown factors such as:(1) future pumpage from the aquifer or from interconnected aquifers from area wells outside of the subdivision or any other factor that cannot be predicted that will affect the storage of water in the aquifer;(2) long-term impacts to the aquifer based on climatic variations; and(3) future impacts to usable groundwater due to unforeseen or unpredictable contamination.(c) Certification. Based on best professional judgement, current groundwater conditions, and the information developed and presented on or attached to the Certification of Groundwater Availability Form (TCEQ-20982), the licensed professional engineer or licensed professional geoscientist must certify by signature, seal, and date that adequate groundwater is available from the underlying aquifer(s) to supply the estimated demand of the proposed subdivision.</content><note type="source"><p>Source Note: The provisions of this §230.11 adopted to be effective July 9, 2000, 25 TexReg 6345; amended to be effective Februay 13, 2003, 28 TexReg 1206; amended to be effective December 11, 2024, 49 TexReg 9986.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c279"><num value="279">CHAPTER 279</num><heading>WATER QUALITY CERTIFICATION</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c279/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c279/sc/s279.1"><num value="279.1">§279.1</num><heading>General</heading><content>This chapter governs the issuance by the Texas Natural Resource Conservation Commission of state certifications as authorized by 33 United States Code, §1341, commonly known as the federal Clean Water Act (CWA), §401.</content><note type="source"><p>Source Note: The provision of this §279.1 adopted to be effective July 22, 1987, 12 TexReg 2187; amended to be effective July 13, 1995, 20 TexReg 4693; amended to be effective October 4, 2001, 26 TexReg 7569.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c279/sc/s279.2"><num value="279.2">§279.2</num><heading>Purpose and Policy</heading><content>(a) This chapter establishes procedures and criteria for applying for, processing, and reviewing state certifications under CWA, §401, for activities under the jurisdiction of the agency. It is the purpose of this chapter, consistent with the Texas Water Code and the federal CWA, to maintain the chemical, physical, and biological integrity of the state's waters.(b) It is the policy of the commission to achieve no overall net loss of the existing wetlands resource base with respect to wetlands functions and values in the State of Texas. All activities under the jurisdiction of the agency that require a federal license or permit and that may result in any discharge to waters of the United States are subject to review for consistency with the federal CWA and the Texas Surface Water Quality Standards. After such a review, the agency shall:(1) grant certification for any activity that will not result in any discharge in violation of water quality standards or any other appropriate requirements as set forth in §279.9 of this title (relating to Executive Director Review of Water Quality Certification Application);(2) grant conditional certification stating that the conditions necessary to prevent any activity that will result in a discharge from violating water quality standards or any other appropriate requirements as set forth in §279.9 of this title;(3) deny certification for any activity that will result in a discharge in violation of water quality standards or any other appropriate requirements as set forth in §279.9 of this title; or(4) waive certification. The agency may condition the waiver of certification upon the agreement of an applicant to include and comply with specific water quality-related conditions in the applicant's federal permit.(c) The executive director is delegated the responsibility for performing all certification functions under this chapter on behalf of the commission, except that at the request of the executive director, the commission may review the question of certification prior to the executive director's determination on certification.</content><note type="source"><p>Source Note: The provision of this §279.2 adopted to be effective July 22, 1987, 12 TexReg 2187; amended to be effective July 13, 1995, 20 TexReg 4693; amended to be effective October 4, 2001, 26 TexReg 7569.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c279/sc/s279.3"><num value="279.3">§279.3</num><heading>Definitions</heading><content>In addition to the terms defined in §3.2 of this title (relating to Definitions), the following words and terms, when used in this chapter, shall have the following meanings.(1) 401 Certification--A certification issued by the state as authorized under the federal CWA, §401.(2) 402 Permit--See NPDES permit.(3) 404 Permit--A Department of the Army permit issued under the authority of the federal CWA, §404, which authorizes the discharge of dredged or fill material into waters of the United States.(4) Activity--The construction, operation, maintenance, or modification of facilities, structures, channels, or equipment that may result in any discharge into or adjacent to waters in the state or which may otherwise affect water quality.(5) Applicant--Any person who applies for any license or permit granted by an agency of the federal government to conduct any activity that may result in any discharge into or adjacent to water in the state.(6) Aquatic Ecosystem--Water in the state, including wetlands, that serve as habitat for interrelated and interacting communities and populations of plants and animals.(7) Clean Water Act--33 United States Code, §§1251 - 1387, also known as the federal Clean Water Act (CWA), §§101 - 607.(8) Department of the Army Permits--All permits and licenses issued by the Department of the Army Corps of Engineers including 404 Permits and permits issued under the authority of the Rivers and Harbors Act of 1899, §10.(9) Discharge--Deposit, conduct, drain, emit, throw, run, allow to seep, or otherwise release or dispose of any pollutant, or to allow, permit, or suffer any of these acts or omissions.(10) District engineer--The Department of the Army representative responsible for administering, processing, and enforcing federal laws and regulations relating to the U.S. Army Corps of Engineers, including permitting.(11) Emergency--A condition either meeting the requirements of federal law as constituting an emergency or applicable provisions of §305.21 of this title (relating to Emergency Orders and Temporary Orders Authorized).(12) General permit--A permit issued by a federal licensing or permitting agency on a nationwide or regional basis.(13) Individual permit--A permit that is issued by a federal licensing or permitting agency following an evaluation of any activity including, but not limited to, the construction or operation of a facility that may result in any discharge into waters of the United States.(14) Licensing or permitting agency--Any agency of the federal government to which application is made for any license or permit to conduct an activity that may result in any discharge into or adjacent to water in the state.(15) Nationwide permit--A type of general permit authorized by a federal licensing or permitting agency that applies throughout the nation.(16) National Pollutant Discharge Elimination System (NPDES) permit--A written document issued by the regional administrator of the EPA under the federal CWA, §402, which authorizes the discharge of any pollutant, or combination of pollutants, into navigable waters of the United States.(17) Pollutant--Dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, filter backwash, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into any water in the state. The term "pollutant" does not include tail water or runoff water from irrigation or rainwater runoff from cultivated or uncultivated rangeland, pastureland, and farmland.(18) Practicable--Available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.(19) Regional administrator--The administrator of the EPA, Region VI.(20) Water dependent activity--An activity that is proposed for or adjacent to an aquatic site that requires access, proximity to, or siting within an aquatic site to fulfill its basic purpose.(21) Water Quality Standards--Texas Surface Water Quality Standards, Chapter 307 of this title (relating to Texas Surface Water Quality Standards).</content><note type="source"><p>Source Note: The provision of this §279.3 adopted to be effective July 22, 1987, 12 TexReg 2187; amended to be effective July 13, 1995, 20 TexReg 4693; amended to be effective October 4, 2001, 26 TexReg 7569.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c279/sc/s279.4"><num value="279.4">§279.4</num><heading>Application for Certification</heading><content>(a) National Pollutant Discharge Elimination System (NPDES) permits. No person may conduct any activity under federal permit or license that may result in any discharge into or adjacent to water in the state unless the person has received a certification or waiver under this chapter. The regional administrator or the permit applicant may submit a request for certification.(1) If state certification has not been received by the time the draft NPDES permit is prepared, the regional administrator shall, pursuant to 40 Code of Federal Regulations §124.53, submit to the executive director:(A) a copy of a draft permit; and(B) a request for certification.(2) If the permit applicant requests certification of the NPDES permit application, he shall submit to the executive director:(A) a copy of the completed NPDES permit application and any amendments thereto;(B) a list on a map or on a separate sheet attached to a map of the names and addresses of owners of tracts of land adjacent to the site to be permitted; and(C) a request for certification.(3) The executive director may elect to delay acting upon a request for certification until the draft NPDES permit is prepared and notice thereof has been issued.(b) Department of the Army permits. No person may conduct any activity under federal permit or license that may result in any discharge into or adjacent to water in the state unless the person has received a certification or waiver under this chapter. The district engineer or the permit applicant may submit a request for certification.(1) If state certification is requested by the district engineer, he shall, pursuant to 33 Code of Federal Regulations §325.2(b)(ii), submit to the executive director:(A) a copy of the public notice;(B) a request for certification; and(C) a copy of the complete permit application upon request.(2) If the permit applicant requests certification, he shall submit to the executive director:(A) a copy of the completed permit application and any amendments thereto;(B) a list on a map or on a separate sheet attached to a map of the names and addresses of owners of tracts of land adjacent to the site to be permitted; and(C) a request for certification.(3) The executive director may elect to delay acting on a request for certification until after a review of a final permit decision document.(c) Other federal licenses or permits. For those federal licenses or permits issued by federal agencies other than the EPA or the Department of the Army that may result in any discharge into or adjacent to water in the state, the permittee must receive certification or waiver under this chapter prior to conducting any permitted activity.(1) If state certification is requested by the federal agency, that agency shall submit to the executive director:(A) a copy of the public notice;(B) a request for certification; and(C) a copy of the complete permit application upon request.(2) If the permit applicant requests certification, he shall submit to the executive director:(A) a copy of the completed permit application and any amendments thereto;(B) a list on a map or on a separate sheet attached to a map of the names or addresses of owners of tracts of land adjacent to the site to be permitted; and(C) a request for certification.(3) The executive director may elect to delay acting on a request for certification until the licensing or permitting agency publishes notice of the application and/or the executive director has reviewed the draft permit.(d) Review of application for certification. Where the executive director believes more information is required in order to accomplish the review of the request for certification, he shall notify the applicant or licensing or permitting agency and request the information.(e) Submission of additional materials. The applicant shall submit in timely fashion, at any time during the review process, additional materials that the executive director finds to be necessary for review of the application. In no case will the applicant have less than 30 days to submit the information.</content><note type="source"><p>Source Note: The provision of this §279.4 adopted to be effective July 22, 1987, 12 TexReg 2187; amended to be effective July 13, 1995, 20 TexReg 4693; amended to be effective October 4, 2001, 26 TexReg 7569.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c279/sc/s279.5"><num value="279.5">§279.5</num><heading>Notice of Application</heading><content>(a) The executive director to the greatest extent practicable shall use a joint mailed notice issued by the licensing or permitting agency.(b) If a joint notice is not used as provided in subsection (a) of this section and the executive director finds that all necessary materials have been received, the executive director shall mail notice of the application for certification to:(1) the adjacent landowners;(2) the mayor and health authorities of the city or town in which the activity is or will be located or in which waste is or will be disposed;(3) the county judge and health authorities of the county in which the facility is located or in which waste is or will be disposed;(4) the Texas Parks and Wildlife Department;(5) the United States Department of Interior Fish and Wildlife Service;(6) the Texas Water Development Board;(7) the United States Commerce Department, National Marine Fisheries Service;(8) the EPA, Region 6;(9) the Texas General Land Office;(10) the Secretary of the Coastal Coordination Council; and(11) the applicant.(c) Any public notice issued under subsection (b) of this section shall contain:(1) the applicant's name and mailing address, together with the name and mailing address of the party conducting the activity, if different from the applicant;(2) a brief written description of the activity;(3) a statement that the applicant is seeking certification under the federal CWA, §401;(4) a statement that any comments concerning the application may be submitted to the executive director of the agency, Attention 401 Coordinator, MC 150, P.O. Box 13087, Austin, Texas 78711-3087, and a deadline for written public comment of no less than 30 days;(5) a statement that a copy of the application is available for review in the office of the federal licensing or permitting agency's office; and(6) a statement indicating how persons can request a public meeting.(d) The executive director may waive notice requirements of this section when it is determined that a certification will be waived.(e) The executive director may waive notice and meeting requirements of this section and §§279.6 - 279.8 of this title (relating to Public Comments, Public Meetings, and Notice of Public Meeting) and issue a final agency action in accordance with §§279.10 - 279.12 of this title (relating to Final Agency Action on National Pollutant Discharge Elimination System (NPDES) Permits; Final Agency Action on Department of the Army Permits; and Other State Certification) when an emergency as defined in §279.3 of this title (relating to Definitions) has been determined to exist and it is in the public interest to issue a certification decision in less than 30 days.</content><note type="source"><p>Source Note: The provision of this §279.5 adopted to be effective July 22, 1987, 12 TexReg 2187; amended to be effective July 13, 1995, 20 TexReg 4693; amended to be effective October 4, 2001, 26 TexReg 7569.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c279/sc/s279.6"><num value="279.6">§279.6</num><heading>Public Comments</heading><content>The executive director shall consider all comments related to the impacts of the proposed activity received in accordance with these rules for permit applications subject to review, unless a public notice has been waived under §279.5(d) or (e) of this title (relating to Notice of Application).</content><note type="source"><p>Source Note: The provision of this §279.6 adopted to be effective July 22, 1987, 12 TexReg 2187; amended to be effective July 13, 1995, 20 TexReg 4693; amended to be effective October 4, 2001, 26 TexReg 7569.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c279/sc/s279.7"><num value="279.7">§279.7</num><heading>Public Meetings</heading><content>(a) The executive director may conduct a public meeting on any application for 401 certification if the executive director determines, based on public comment received during the public comment period, that such a meeting would be appropriate. The executive director shall conduct a public meeting on an application for 401 certification if a request for such a meeting is made by a commissioner.(b) If a public meeting is held, the executive director shall notify the licensing and permitting agency and request an extension of time to consider the certification.(c) All meetings held under this section shall be conducted by a representative of the executive director. The representative shall receive comments concerning all matters affecting the 401 certification.(d) After the meeting the executive director may consider any information provided at the meeting and any other information appropriate to determine whether to certify the activity.</content><note type="source"><p>Source Note: The provision of this §279.7 adopted to be effective July 22, 1987, 12 TexReg 2187; amended to be effective July 13, 1995, 20 TexReg 4693; amended to be effective October 4, 2001, 26 TexReg 7569.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c279/sc/s279.8"><num value="279.8">§279.8</num><heading>Notice of Public Meeting</heading><content>(a) The executive director shall notify the applicant not less than 30 days before the date set for meeting that a public meeting will be held on the application. The notice shall be by certified mail, return receipt requested.(b) The notice of meeting shall identify the application; the date; time; place and nature of the meeting; the legal authority and jurisdiction under which the meeting is to be held; the proposed action; the requirements for submitting written comments; the method for obtaining additional information; and other information as the executive director deems necessary.(c) The executive director will transmit the notice by first-class mail or by personal service to:(1) the adjacent landowners;(2) the mayor and health authorities of the city or town in which the activity is or will be located or in which pollutants will be discharged;(3) the county judge and health authorities of the county in which the activity is or will be located or in which pollutants will be discharged;(4) the Texas Parks and Wildlife Department;(5) the United States Department of Interior Fish and Wildlife Service;(6) the Texas Water Development Board;(7) the United States Commerce Department, National Marine Fisheries Service;(8) the EPA, Region 6;(9) the Texas General Land Office;(10) the Secretary of the Coastal Coordination Council; and(11) any person from whom written comment was received during the comment period, provided that the comment included a legible mailing address for the commenter.(d) The date of mailing the notice of meeting shall be at least 30 days before the date set for the meeting.</content><note type="source"><p>Source Note: The provision of this §279.8 adopted to be effective July 22, 1987, 12 TexReg 2187; amended to be effective July 13, 1995, 20 TexReg 4693; amended to be effective October 4, 2001, 26 TexReg 7569.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c279/sc/s279.9"><num value="279.9">§279.9</num><heading>Executive Director Review of Water Quality Certification Application</heading><content>(a) The executive director shall conduct a review or waive certification.(b) If the executive director conducts a review, the executive director shall, after the review and any public meeting held on the application, determine whether the proposed activity will:(1) result in any discharge;(2) result in any violation of 33 United States Code, §§1311, 1312, 1313, 1316, or 1317;(3) result in any violation of applicable water quality standards; or(4) result in any violation of any other appropriate requirements of state law.</content><note type="source"><p>Source Note: The provision of this §279.9 adopted to be effective July 22, 1987, 12 TexReg 2187; amended to be effective July 13, 1995, 20 TexReg 4693; amended to be effective October 4, 2001, 26 TexReg 7569.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c279/sc/s279.10"><num value="279.10">§279.10</num><heading>Final Agency Action on National Pollutant Discharge Elimination System (NPDES) Permits</heading><content>(a) The executive director shall issue a final determination within 60 days from the date the draft permit is mailed by the Regional Administrator, EPA, as required by 40 Code of Federal Regulations §124.53, unless the executive director in consultation with the Regional Administrator finds that unusual circumstances require a longer time. The executive director shall send notice of the decision to deny, grant, grant conditionally, or waive the certification, and a copy of the certification (if granted), to the applicant, the regional administrator, and any person so requesting. The notification shall be in writing and shall include:(1) the name and address of the applicant;(2) conditions that are necessary to assure compliance with the applicable provisions of the federal CWA, §§208(e), 301, 302, 303, 306, and 307, and with appropriate requirements of state law;(3) when the agency certifies a draft permit instead of a permit application, any condition required to assure compliance with the provisions of the federal CWA, §§208(e), 301, 302, 303, 306, and 307, and with appropriate requirements of state law shall be identified citing the federal CWA or state statutes upon which that condition is based; and(4) a statement of the extent to which each condition of the draft permit can be made less stringent without violating the requirements of state law, including water quality standards.(b) The executive director shall not condition or deny an NPDES certification on the grounds that state law allows a less stringent permit condition.</content><note type="source"><p>Source Note: The provision of this §279.10 adopted to be effective July 22, 1987, 12 TexReg 2187; amended to be effective July 13, 1995, 20 TexReg 4693; amended to be effective October 4, 2001, 26 TexReg 7569.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c279/sc/s279.11"><num value="279.11">§279.11</num><heading>Final Agency Action on Department of the Army Permits</heading><content>(a) The executive director shall review or waive certification of any permit application in accordance with §279.9 of this title (relating to Executive Director Review of Water Quality Certification). When an application is reviewed, the executive director shall take final action within 60 days after receiving the certification request from the U.S. Army Corps of Engineers (Corps) as required by 33 Code of Federal Regulations, §325.2(b) unless the executive director, in consultation with the Corps, determines a shorter or longer period is reasonable.(b) Certification of discharges into aquatic ecosystems shall avoid unacceptable adverse impacts, including cumulative and secondary impacts.(c) If the executive director reviews a request for certification of a 404 Permit activity, the review shall be performed using the following criteria.(1) No discharge shall be certified if there is a practicable alternative to the proposed discharge that would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other more significant adverse environmental consequences. Activities that are not water dependent are presumed to have a practicable alternative, unless the applicant demonstrates otherwise. For the purposes of this section compensatory mitigation is not considered an alternative.(2) No discharge of dredged or fill material shall be certified unless appropriate and practicable steps have been taken that will minimize potential adverse impacts of the discharge on the aquatic ecosystem.(3) Certification shall require appropriate and practicable compensatory mitigation for all unavoidable adverse impacts that remain after all practicable avoidance and minimization have been completed. Compensatory mitigation requirements will provide for a replacement of impacted functions and values.(4) If the executive director determines that the impacts of the project are so significant that the proposed compensatory mitigation will not accomplish the purpose and policy of this chapter, certification may be denied even if an alternative is not available.(d) The executive director shall send notice of the decision to deny, grant, grant conditionally, or waive certification, including a copy of the certification decision, to the applicant, the Corps, the designated contact of any other licensing or permitting agency, and any person so requesting. The notification shall be in writing and shall include:(1) the name and address of the applicant;(2) if certification is granted or denied, a statement of the basis for the executive director's decision, including a description of the materials and information examined during the executive director's review. The statement shall include:(A) if the activity is certified:(i) a statement that there is a reasonable assurance the activity, if conducted in accordance with the terms of the proposed permit, will not violate the criteria enumerated in §279.9 of this title; or(ii) a statement of conditions, including any monitoring and reporting requirements necessary to assure compliance with the criteria enumerated in §279.9 of this title;(B) if certification is denied, an explanation of how the proposed activity will not satisfy one or more of the criteria enumerated in §279.9 of this title.</content><note type="source"><p>Source Note: The provision of this §279.11 adopted to be effective July 22, 1987, 12 TexReg 2187; amended to be effective July 13, 1995, 20 TexReg 4693; amended to be effective October 4, 2001, 26 TexReg 7569.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c279/sc/s279.12"><num value="279.12">§279.12</num><heading>Other State Certification</heading><content>(a) Nationwide Permit Certification.(1) The executive director shall consider all proposed nationwide permits for certification for activities that may result in any discharge into or adjacent to water in the state consistent with §279.9 of this title (relating to Executive Director Review of Water Quality Certification Application). Water quality certification for activities authorized under a nationwide permit is complete at the time the permit is issued. No additional certification is required for activities authorized under that nationwide permit.(2) When a federal licensing or permitting agency proposes a nationwide permit for an activity that may result in a discharge, the executive director shall notify:(A) the Texas Parks and Wildlife Department;(B) the Texas Water Development Board; and(C) the Texas General Land Office.(3) After considering public comments received in accordance with §279.5 of this title (relating to Notice of Application) and other information, the executive director shall grant, grant conditionally, deny, or waive certification.(4) The executive director shall maintain a list of all applicable nationwide permits and the executive director's certification action on each one.(b) General Permit Certification.(1) The executive director shall consider all proposed general permits for certification for activities that may result in any discharge into or adjacent to water in the state consistent with §279.9 of this title. Water quality certification for activities authorized under a general permit is complete at the time the permit is issued. No additional certification is required for activities authorized under that general permit.(2) When a federal licensing or permitting agency proposes a general permit for an activity that may result in a discharge, the executive director shall notify:(A) the Texas Parks and Wildlife Department;(B) the Texas Water Development Board; and(C) the Texas General Land Office.(3) After considering public comments received in accordance with §279.5 of this title (relating to Notice of Application) and other information, the executive director shall grant, grant conditionally, deny, or waive certification.(4) The executive director shall maintain a list of all applicable general permits and the executive director's certification action taken on each one.(c) Final Action on Other Certification. The executive director shall send notice of the decision to deny, grant, grant conditionally, or waive certification, including a copy of the certification if granted, to the applicant, the designated contact of the licensing or permitting agency, and any person so requesting. The notification shall be in writing and shall include:(1) the name and address of the applicant;(2) if certification is either granted or denied, a statement of the basis for the executive director's decision, including a description of the materials and information examined during the executive director's review. The statement shall include:(A) if the activity is certified;(i) a statement that there is a reasonable assurance the activity, if conducted according to the terms of the proposed permit, will not violate the criteria enumerated in §279.9 of this title; or(ii) a statement of conditions, including any monitoring and reporting requirements, necessary to assure compliance with the criteria enumerated in §279.9 of this title;(B) if certification is denied, an explanation of how the proposed activity will not satisfy one or more of the criteria enumerated in §279.9 of this title.</content><note type="source"><p>Source Note: The provision of this §279.12 adopted to be effective July 22, 1987, 12 TexReg 2187; amended to be effective July 13, 1995, 20 TexReg 4693; amended to be effective October 4, 2001, 26 TexReg 7569.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c279/sc/s279.13"><num value="279.13">§279.13</num><heading>Enforcement</heading><content>Applicants whose activities are certified or conditionally certified by the executive director, or for whose activities the executive director waives certification or takes no certification action based upon the applicant's agreement to include permit terms or conditions in the federal permit, shall comply with all terms and conditions of the permit as issued by the federal agency and as thereafter amended. Violation of the agreement to include permit terms or conditions, or violation of any term or condition of a permit relating to water quality shall constitute a violation of this rule. The commission may enforce such a violation under TWC, Chapter 7, and Chapter 70 of this title (relating to Enforcement).</content><note type="source"><p>Source Note: The provision of this §279.13 adopted to be effective October 4, 2001, 26 TexReg 7569.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c281"><num value="281">CHAPTER 281</num><heading>APPLICATIONS PROCESSING</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c281/scA"><num value="A">SUBCHAPTER A</num><heading>APPLICATIONS PROCESSING</heading><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.1"><num value="281.1">§281.1</num><heading>Purpose</heading><content>It is the intent of the Texas Commission on Environmental Quality to establish a general policy for the processing of applications for permits, licenses and other types of approvals in order to achieve the greatest efficiency and effectiveness possible. To this end, it is the policy of the commission that applications for permits, licenses, and other types of approvals listed in §281.2 of this title (relating to Applicability) be processed by the executive director according to the schedule established in this chapter.</content><note type="source"><p>Source Note: The provisions of this §281.1 adopted to be effective May 28, 1986, 11 TexReg 2312; amended to be effective November 7, 1994, 19 TexReg 8542; amended to be effective November 17, 2024, 49 TexReg 8924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.2"><num value="281.2">§281.2</num><heading>Applicability</heading><content>This subchapter is applicable to the processing of:(1) applications for new, amended, or renewed water use permits, certificates of adjudication and certified filings, and extensions of time to commence and/or complete construction of water use facilities;(2) applications for new, amended, or renewed wastewater discharge permits, including subsurface area drip dispersal systems;(3) applications for new, amended, or renewed injection well permits;(4) applications for new, amended, or modified or renewed industrial solid and/or municipal hazardous waste permits filed under §335.2 and §335.43 of this title (relating to Permit Required) or for new or amended compliance plans filed under §305.401 of this title (relating to Compliance Plan);(5) applications for plan approval of reclamation projects (levees, etc.);(6) applications for creation of water districts;(7) water district applications and petitions requiring commission approval;(8) applications for new, amended, or renewed municipal solid waste permits; and(9) applications for new, amended, or renewed radioactive material licenses.</content><note type="source"><p>Source Note: The provisions of this §281.2 adopted to be effective May 28, 1986, 11 TexReg 2312; amended to be effective July 14, 1987; 17 TexReg 2102; amended to be effective January 7, 1993, 17 TexReg 9124; amended to be effective November 7, 1994, 19 TexReg 8542; amended to be effective June 5, 1997, 22 TexReg 4581; amended to be effective March 7, 2002, 27 TexReg 1497; amended to be effective July 5, 2006, 31 TexReg 5331; amended to be effective January 3, 2019, 43 TexReg 8613.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.3"><num value="281.3">§281.3</num><heading>Initial Review</heading><content>(a) Applications for permits, licenses, or other types of approvals, except as provided in subsections (b) and (d) of this section, shall be reviewed by the staff for administrative completeness within ten working days of receipt of the application by the executive director.(b) Applications made under §335.43 of this title (relating to Permit Required) or §331.7 of this title (relating to Permit Required) shall be reviewed by the staff for administrative completeness within 15 working days after assignment of the application to a staff member for review under this section. Prior to commencement of review of an application under this section, the executive director shall notify the applicant by first-class mail of the date on which the review will commence.(c) For applications involving hazardous waste under the Texas Solid Waste Disposal Act, Texas Health and Safety Code, Chapter 361, applicants for existing hazardous waste management facilities shall have 30 days from receipt of notice of deficiency in a Part A permit application to respond to the notification and to explain or cure the alleged deficiency in the Part A application. Applicants shall be afforded this opportunity to cure the deficiencies before the executive director may pursue enforcement action concerning deficient applications.(d) Applications made under Chapter 336 of this title (relating to Radioactive Substance Rules) for issuance or renewal of a license, or for major amendments to a license, shall be reviewed for administrative completeness within 45 days after receipt of the application by the executive director. Applications for minor amendments shall be reviewed for administrative completeness within 30 days after receipt of the application by the executive director.</content><note type="source"><p>Source Note: The provisions of this §281.3 adopted to be effective May 28, 1986, 11 TexReg 2312; amended to be effective July 14, 1987, 12 TexReg 2102; amended to be effective January 7, 1993, 17 TexReg 9124; amended to be effective June 5, 1997, 22 TexReg 4581.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.4"><num value="281.4">§281.4</num><heading>Applications for Use of State Water</heading><content>Applications for the use of state water must include:(1) complete application form(s), signed and notarized;(2) the payment of fees in accordance with §§295.131-295.139 of this title (relating to Water Use Permit Fees);(3) the verified legal status of the applicant;(4) appropriate ownership documents (including easements and consents);(5) an adequate map or plat;(6) the required engineering plans or studies; and(7) any other information as the executive director or the commission may reasonably require.</content><note type="source"><p>Source Note: The provisions of this §281.4 adopted to be effective May 28, 1986, 11 TexReg 2312.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.5"><num value="281.5">§281.5</num><heading>Application for Wastewater Discharge, Underground Injection, Municipal Solid Waste, Radioactive Material, Hazardous Waste, and Industrial Solid Waste Management Permits</heading><content>(a) Except as provided by §305.48 of this title (relating to Additional Contents of Applications for Wastewater Discharge Permits), applications for wastewater discharge including subsurface area drip dispersal systems, underground injection, municipal solid waste, radioactive material, hazardous waste and industrial solid waste management permits must include:(1) complete application form(s), signed and notarized, and appropriate copies provided;(2) the payment of fees, if applicable;(3) the verified legal status of the applicant;(4) the signature of the applicant, checked against commission requirements;(5) the attachment of technical reports and supporting data required by the application;(6) a list of adjacent and potentially affected landowners and their addresses along with a map locating the property owned by these persons; and(7) any other information as the executive director or the commission may reasonably require.(b) A person submitting an application under subsection (a) of this section shall also submit an accurate duplicate of the application in electronic format.</content><note type="source"><p>Source Note: The provisions of this §281.5 adopted to be effective May 28, 1986, 11 TexReg 2312; amended to be effective July 14, 1987, 12 TexReg 2102; amended to be effective January 7, 1993, 17 TexReg 9124; amended to be effective June 17, 1999, 24 TexReg 4436; amended to be effective September 14, 2000, 25 TexReg 8879; amended to be effective July 5, 2006, 31 TexReg 5331; amended to be effective November 17, 2024, 49 TexReg 8924.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.6"><num value="281.6">§281.6</num><heading>Applications for Plan Approval of Reclamation Projects</heading><content>Applications for plan approval of reclamation projects must include:(1) complete application form(s), signed and notarized;(2) an engineering report and supporting data; and(3) a list of adjacent and potentially affected landowners along with a map locating the land owned by these persons; and(4) any other information as the executive director or the commission may reasonably require.</content><note type="source"><p>Source Note: The provisions of this §281.6 adopted to be effective May 28, 1986, 11 TexReg 2312.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.8"><num value="281.8">§281.8</num><heading>Application for Local Sponsor Designation</heading><content>An application for designation as the local sponsor of a project under the Texas Water Code, §16.092, shall include:(1) a detailed description of the proposed project, including the location and purpose(s) of the project;(2) the reasons for the application;(3) the contemplated use of water the applicant might derive from the project if a permit for use is subsequently granted by the commission; and(4) the contribution the applicant is prepared to make up to the planning and/or development of the project.</content><note type="source"><p>Source Note: The provisions of this §281.8 adopted to be effective December 16, 1987, 12 TexReg 4530.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.17"><num value="281.17">§281.17</num><heading>Notice of Receipt of Application and Declaration of Administrative Completeness</heading><content>(a) Applications for use of state water. If an application for the use of state water, other than for a permit under §297.13 of this title (relating to Temporary Permit under the Texas Water Code, §11.138) or §297.17 of this title (relating to Emergency Authorization (Texas Water Code, §11.139)), is received containing the information and attachments required by §281.4 of this title (relating to Applications for Use of State Water), the executive director or his designee shall prepare a statement of the receipt of the application and declaration of administrative completeness. The executive director shall forward a copy of the statement to the chief clerk, along with a copy of the application.(b) Applications for temporary permits to use state water. If an application for a temporary permit, other than a provisional temporary permit under §295.181 of this title (relating to Provisional Disposition of Application for Temporary Permit), for the use of state water is received containing the required information and attachments required by §281.4 of this title, the executive director or his designee shall prepare a statement of the receipt of the application and declaration of administrative completeness, and shall forward a copy of the statement to the chief clerk.(c) Applications for provisional temporary permits to use state water. When an application for a provisional temporary permit for the use of state water under §295.181 of this title, is received containing the information and attachments required by §281.4 of this title, the chief clerk shall cause notice of the receipt of the application and declaration of administrative completeness to be published in the Texas Register. The chief clerk may include in the notice other information concerning the disposition of the application.(d) Other applications. Upon receipt of an application described in §281.2(2) or (5) - (9) of this title (relating to Applicability), which contains the information and attachments required by §281.5 and §281.6 of this title (relating to Application for Wastewater Discharge, Underground Injection, Municipal Solid Waste, Radioactive Material, Hazardous Waste, and Industrial Solid Waste Management Permits; and Applications for Plan Approval of Reclamation Projects), the executive director or his designee shall assign the application a number for identification purposes, and prepare a statement of the receipt of the application and declaration of administrative completeness which is suitable for publishing or mailing and shall forward that statement to the chief clerk. Upon receipt of an application for a new, amended, or renewed injection well permit, for a new, amended, or renewed industrial solid waste permit, or for a new or amended compliance plan as described in §281.2(3) and (4) of this title, the executive director or his designee shall assign the application a number for identification purposes and prepare a statement of the receipt of the application which is suitable for publishing or mailing and shall forward that statement to the chief clerk. Upon receipt of an application for a new, amended, or renewed radioactive material license as described in Chapter 336 of this title (relating to Radioactive Substance Rules), the executive director or his designee shall assign the application a number for identification purposes and prepare a statement of the receipt of the application which is suitable for mailing and shall forward that statement to the chief clerk prior to the expiration of the administrative review periods established in §281.3(d) of this title (relating to Initial Review). The chief clerk shall notify every person entitled to notification of a particular application under the rules of the commission.(e) Notice requirements. The notice of receipt of the application and declaration of administrative completeness, or for applications for a new, amended, or renewed injection well permit, or for a new or amended compliance plan as described in §281.2(3) and (4) of this title, the notice of receipt of the application, shall contain the following information:(1) the identifying number given the application by the executive director;(2) the type of permit or license sought under the application;(3) the name and address of the applicant and, if different, the location of the proposed facility;(4) the date on which the application was submitted; and(5) a brief summary of the information included in the application.(f) Notice of application and draft permit. Nothing in this section shall be construed so as to waive the requirement of notice of the application and draft permit in accordance with Chapter 39 of this title (relating to Public Notice) for applications for radioactive material licenses, and for wastewater discharge, underground injection, hazardous waste, municipal solid waste, and industrial solid waste management permits.</content><note type="source"><p>Source Note: The provisions of this §281.17 adopted to be effective May 28, 1986, 11 TexReg 2312; amended to be effective November 5, 1990, 15 TexReg 6126; amended to be effective January 7, 1993, 17 TexReg 9124; amended to be effective June 5, 1997, 22 TexReg 4581; amended to be effective December 31, 2009, 34 TexReg 9452; amended to be effective January 3, 2019, 43 TexReg 8613.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.18"><num value="281.18">§281.18</num><heading>Applications Returned</heading><content>(a) If an application or petition is received which is not administratively complete, the executive director shall notify the applicant of the deficiencies by electronic mail or certified mail return receipt requested prior to expiration of the applicable review period established by §281.3(a), (b), and (d) of this title (relating to Initial Review).(1) The executive director will evaluate the applicant's response to the notice of administrative deficiencies within eight working days of receipt and, where applicable, shall prepare a statement of receipt of the application and declaration of administrative completeness in accordance with §281.17 of this title (relating to Notice of Receipt of Application and Declaration of Administrative Completeness). For applications for radioactive material licenses, the executive director shall evaluate the applicant's response to the notice of administrative deficiencies within 30 days of receipt.(2) If the required information is not received from the applicant within the timeframe specified in the deficiency notice, the executive director shall return the incomplete application to the applicant. The executive director shall send at least one deficiency notice via certified mail return receipt requested, providing the applicant 30 days to respond, before an application may be returned.(b) For applications involving industrial, hazardous, or municipal waste, or for new, renewal, or major amendment applications for radioactive material licenses, the executive director may grant an extension of an additional 60 days beyond the original 30 days allowed under the rule for a total response time of 90 days upon sufficient proof from the applicant that an adequate response cannot be submitted within 30 days. Unless there are extenuating circumstances, if an applicant does not submit an administratively complete application as required by this chapter, the application shall be considered withdrawn. However, if applicable, the applicant is responsible for the cost of any notice provided under §281.17 of this title and the costs of such notice shall be deducted from any filing fees submitted by the applicant prior to return of the incomplete application.</content><note type="source"><p>Source Note: The provisions of this §281.18 adopted to be effective May 28, 1986, 11 TexReg 2312; amended to be effective December 16, 1987, 12 TexReg 4530; amended to be effective November 5, 1990, 15 TexReg 6126; amended to be effective January 7, 1993, 17 TexReg 9124; amended to be effective June 5, 1997, 22 TexReg 4581; amended to be effective July 20, 2000, 25 TexReg 6768; amended to be effective October 29, 2020, 45 TexReg 7591.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.19"><num value="281.19">§281.19</num><heading>Technical Review</heading><content>(a) After an application is determined by the executive director to be administratively complete, the executive director shall commence a technical review as necessary and appropriate. For purposes of these sections, the technical review period is that period of time beginning with the completion of the initial review period and will continue for a period of time not to exceed 75 working days. In the case of applications filed under §335.43 of this title (relating to Permit Required) or §331.7 of this title (relating to Permit Required), the technical review period shall commence upon assignment of the application to a staff member and continue for a period of time not to exceed 120 days. For applications filed under Chapter 336 of this title (relating to Radioactive Substance Rules) and subject to the Notice of Deficiency (NOD) process established in this section, the technical review period shall begin the day after the date of determination of administrative completeness and for issuance, renewal, or major amendments, shall continue for a period of time not to exceed 255 days; however, this time frame may be extended to a maximum of 600 days if an application is technically deficient; or, for applications for minor amendments, shall continue for a period of time not to exceed 90 days; however, this time frame may be extended to a maximum of 150 days if an application is technically deficient. In the case of applications filed under Chapter 295 of this title (relating to Water Rights, Procedural) that request a new appropriation of water pursuant to Texas Water Code, §11.157 for storage in an aquifer storage and recovery project or for aquifer recharge, the technical review shall commence on the date the application is administratively complete and will continue for a period of time not to exceed 180 days.(b) Except as provided in subsection (c) of this section, the applicant shall be promptly notified of any additional technical material as may be necessary for a complete review. If the applicant provides the information within the period of time prescribed by subsection (a) of this section, the executive director will complete processing of the application within the technical review period extended by the number of days required for the additional data. If the necessary additional information is not received by the executive director prior to expiration of the technical review period and the information is considered essential by the executive director to make recommendations to the commission on a particular matter, the executive director may return the application to the applicant. In no event, however, will the applicant have less than 30 days to provide the technical data before an application is returned. Decisions to return material to the applicant during the technical review stage will be made on a case by case basis. The applicant has the option of having the question of sufficiency of necessary technical data referred to the commission for a decision instead of having the application returned.(c) For applications for radioactive material licenses, the applicant shall be promptly notified of any additional technical information necessary to complete technical review. For new applications, renewal applications, or major amendment applications, the executive director shall complete application processing within the technical review period (600 days) if the applicant provides the information within 75 days of the date of the first NOD and 60 days of the subsequent NODs. For minor amendments, the applicant must provide the information within 20 days from the date of the first NOD and 20 days from the date of the second NOD. If the necessary additional information is not received by the executive director prior to the end of the response period, the executive director may return the application to the applicant. In no instance shall the executive director issue more than four NODs before returning the application. The applicant has the option of having the question of sufficiency of necessary technical information referred to the commission for a decision instead of having the application returned. The applicant may request additional time to respond to a notice of technical deficiency. The request must be in writing, set forth the reasons why the applicant cannot respond within the time provided and specify the amount of additional time requested. Any extension of time must be approved by the executive director in writing. The executive director may extend or delay the schedule for the processing of an application under this subsection to comply with the priority established by law for processing and review of radioactive material licenses.(d) This subsection applies to the technical review of applications for radioactive material licenses submitted to the Texas Department of State Health Services on or before June 18, 2007. For new applications, renewal applications, or major amendment applications, the executive director shall complete application processing within the technical review period (600 days) if the applicant provides the information within 75 days of the date of the first NOD and 60 days of the second NOD. For minor amendments, the applicant must provide the information within 20 days from the date of the first NOD and 20 days from the date of the second NOD. If the necessary additional information is not received by the executive director prior to the end of the response period, the executive director may return the application to the applicant. In no instance shall the executive director issue more than two NODs before returning the application. The applicant has the option of having the question of sufficiency of necessary technical information referred to the commission for a decision instead of having the application returned. The applicant may request additional time to respond to a notice of technical deficiency. The request must be in writing, set forth the reasons why the applicant cannot respond within the time provided and specify the amount of additional time requested. Any extension of time must be approved by the executive director in writing. The executive director may extend or delay the schedule for the processing of an application under this subsection to comply with the priority established by law for processing and review of radioactive material licenses.</content><note type="source"><p>Source Note: The provisions of this §281.19 adopted to be effective May 28, 1986, 11 TexReg 2312; amended to be effective June 5, 1997, 22 TexReg 4581; amended to be effective February 28, 2008, 33 TexReg 1566; amended to be effective May 28, 2020, 45 TexReg 3445.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.20"><num value="281.20">§281.20</num><heading>Extension</heading><content>If the staff determines that the technical review of an application cannot be completed within the period of time prescribed by §281.19 of this title (relating to Technical Review), the staff will furnish the executive director or his designee with written information regarding the reasons which necessitate the delay and the amount of additional time required by the staff to complete the review. Any extension of the period for technical review must be approved by the executive director or his designee in writing.</content><note type="source"><p>Source Note: The provisions of this §281.20 adopted to be effective May 28, 1986, 11 TexReg 2312; amended to be effective June 5, 1997, 22 TexReg 4581.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.21"><num value="281.21">§281.21</num><heading>Draft Permit, Technical Summary, Fact Sheet, and Compliance History</heading><content>(a) The provisions of this section are applicable to applications for waste disposal activities conducted under the authority of Texas Water Code, Chapters 26, 27, and 32, the Texas Solid Waste Disposal Act, and the Texas Radiation Control Act.(b) The executive director shall prepare a draft permit consistent with all applicable commission rules, unless a recommendation is made not to grant an application. The draft permit will be filed with the commission to be included in the consideration of the application for permit and is subject to change during the course of the proceedings on the application. The draft permit shall be available for public review.(c) The executive director shall prepare a technical summary which sets forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft permit. The executive director shall send this summary together with the draft permit to the applicant and on request, to any other person. The summary shall include the following information, where applicable:(1) a brief description of the type of facility or activity which is the subject of the draft permit;(2) the type and quantity of radioactive materials, wastes, fluids, or pollutants which are proposed to be or are being used, processed, stored, disposed, injected, emitted, or discharged;(3) a brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions;(4) reasons why any requested variances or alternatives to required standards do or do not appear justified;(5) a description of the procedures for reaching a final decision on the draft permit, including procedures whereby the public may participate in the final decision; and(6) the name and telephone number of any persons to contact for additional information.(d) Upon completion of technical review and prior to issuance of public notice, the executive director shall send the compliance history prepared under Chapter 60 of this title (relating to Compliance History), together with the draft permit, technical summary if applicable, and environmental analysis if applicable, to the applicant and on request, to any other person.(e) Additional conditions for Texas Pollutant Discharge Elimination System (TPDES) draft permits and fact sheets are as follows.(1) TPDES draft permits shall include the information required by 40 Code of Federal Regulations (CFR) §124.6(c) - (e), as in effect on the date of TPDES program authorization, as amended, which is adopted by reference; and(2) A fact sheet shall be prepared for a TPDES permit and shall include the information required by 40 CFR §124.56, as in effect on the date of TPDES program authorization, as amended, which is adopted by reference.(f) Additional conditions for radioactive material licenses are as follows.(1) When the executive director is considering an application for a new license or license renewal to dispose of low-level radioactive waste from other persons and determines that the licensed activity may have a significant effect on the human environment, the executive director shall prepare or have prepared a written analysis of the effect on the environment.(2) The executive director shall make the environmental analysis available to the applicant and the public. The environmental analysis shall be included as part of the record of the commission's proceedings.</content><note type="source"><p>Source Note: The provisions of this §281.21 adopted to be effective May 28, 1986, 11 TexReg 2312; amended to be effective October 8, 1990, 15 TexReg 5490; amended to be effective January 7, 1993, 17 TexReg 9124; amended to be effective June 5, 1997, 22 TexReg 4581; amended to be effective September 14, 2000, 25 TexReg 8879; amended to be effective December 16, 2001, 26 TexReg 10095; amended to be effective August 29, 2002, 27 TexReg 7915; amended to be effective July 5, 2006, 31 TexReg 5331.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.22"><num value="281.22">§281.22</num><heading>Referral to Commission</heading><content>(a) When administrative and technical review has been completed, the application shall be forwarded to the commission for filing and setting. For the purpose of providing adequate notice, the executive director shall include a recommendation to the commission of the area wherein the application, if granted, would have a potential impact, and a mailing list of persons who may be affected. For applications for radioactive material licenses, upon completion of technical review, the executive director shall forward the draft license, technical summary, compliance summary, and, if applicable, the environmental analysis to the chief clerk for public notice, or shall forward a recommendation to deny the license.(b) For applications involving hazardous waste or an injection well, the commission shall not issue a permit before receiving a complete application for a permit. For underground injection wells, an application for a permit is complete when the executive director receives an application form and any supplemental information which are completed to his or her satisfaction. For underground injection wells, the completeness of any application for a permit shall be judged independently of the status of any other permit application or permit for the same facility or activity. However, a facility may be eligible for a permit by rule or may be subject to an emergency order.</content><note type="source"><p>Source Note: The provisions of this §281.22 adopted to be effective May 28, 1986, 11 TexReg 2312; amended to be effective July 14, 1987, 12 TexReg 2102; amended to be effective November 7, 1994, 19 TexReg 8542; amended to be effective February 11, 1997, 22 TexReg 1113; amended to be effective June 5, 1997, 22 TexReg 4581; amended to be effective November 17, 2024, 49 TexReg 8925.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.23"><num value="281.23">§281.23</num><heading>Application Amendment</heading><content>(a) No amendments to an application which would constitute a major amendment under the terms of §305.62 of this title (relating to Amendment) can be made by the applicant after the chief clerk has issued notice of the application and draft permit, unless new notice is issued which includes a description of the proposed amendments to the application. For purposes of this section, an attempted transfer of an application shall constitute an amendment requiring additional notice.(b) For applications under Chapter 336 of this title (relating to Radioactive Substance Rules), an application amendment received after commencement of technical review, shall be processed as follows:(1) The executive director shall determine whether the application amendment constitutes a major amendment as defined in §305.62 of this title or constitutes a substantial technical change to the application. Substantial technical changes may include changes in proposed waste disposal methods, enlargement or relocation of proposed areas to be licensed, transfer of an application to another applicant, significant changes in proposed facilities or operations, or other changes which will require extensive technical review.(2) An application amendment that constitutes a major amendment or a substantial technical change shall be processed as a new and separate application.</content><note type="source"><p>Source Note: The provisions of this §281.23 adopted to be effective May 28, 1986, 11 TexReg 2312; amended to be effective June 5, 1997, 22 TexReg 4581; amended to be effective September 14, 2000, 25 TexReg 8879.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.24"><num value="281.24">§281.24</num><heading>Effect of Rules</heading><content>The time limits set out in these rules are not jurisdictional.</content><note type="source"><p>Source Note: The provisions of this §281.24 adopted to be effective May 28, 1986, 11 TexReg 2312.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.25"><num value="281.25">§281.25</num><heading>Additional Facilities and Projects for Which Texas Pollutant Discharge Elimination System (TPDES) Permits Are Required</heading><content>(a) The following regulations contained in 40 Code of Federal Regulations (CFR) Part 122, which are in effect as of the date of TPDES program authorization, as amended, are adopted by reference.(1) Part 122, Subpart 1B--Permit Applications and Special TPDES Program Requirements, §122.23, requiring permits for concentrated animal feeding operations. The adoption of 40 CFR §122.23 does not apply to Chapter 321, Subchapter B of this title (relating to Commercial Livestock and Poultry Production Operations) where discharges are prohibited.(2) Part 122, Subpart B--Permit Applications and Special TPDES Program Requirements, §122.24, requiring permits for concentrated aquatic animal production facilities, except 40 CFR §122.24(c)(2).(3) Part 122, Subpart B--Permit Applications and Special TPDES Program Requirements, §122.25, requiring permits for discharges into aquaculture projects.(4) Part 122, Subpart B--Permit Applications and Special TPDES Program Requirements, §122.26, requiring permits for storm water discharges.(5) Part 122, Subpart B--Permit Applications and Special TPDES Program Requirements, §122.27, requiring permits for silvicultural activities.(b) The following regulations contained in 40 Code of Federal Regulations (CFR) Part 122, (Federal Register, Volume 64, December 8, 1999), except for the EPA guidance contained in 40 CFR §122.33 and §122.34, as amended, are adopted by reference.(1) Part 122, Subpart B--Permit Applications and Special TPDES Program Requirements, §122.30, What are the objectives of the storm water regulations for small MS4s?(2) Part 122, Subpart B--Permit Applications and Special TPDES Program Requirements, §122.31, As a Tribe, what is my role under the NPDES storm water program?(3) Part 122, Subpart B--Permit Applications and Special TPDES Program Requirements, §122.32, As an operator of a small MS4, am I regulated under the NPDES storm water program?(4) Part 122, Subpart B--Permit Applications and Special TPDES Program Requirements, §122.33 (excluding guidance), If I am an operator of a regulated small MS4, how do I apply for an NPDES permit and when do I have to apply?(5) Part 122, Subpart B--Permit Applications and Special TPDES Program Requirements, §122.34 (excluding guidance), As an operator of a regulated small MS4, what will my NPDES MS4 storm water permit require?(6) Part 122, Subpart B--Permit Applications and Special TPDES Program Requirements, §122.35, As an operator of a regulated small MS4, may I share the responsibility to implement the minimum control measures with other entities?(7) Part 122, Subpart B--Permit Applications and Special TPDES Program Requirements, §122.36, As an operator of a regulated small MS4, what happens if I don't comply with the application or permit requirements in §§122.33 - 122.35?(8) Part 122, Subpart B--Permit Applications and Special TPDES Program Requirements, §122.37, Will the small MS4 storm water program regulations at §§122.32 - 122.36 and §123.35 change in the future?</content><note type="source"><p>Source Note: The provisions of this §281.25 adopted to be effective October 8, 1990, 15 TexReg 5490; amended to be effective August 15, 2002, 27 TexReg 7144.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scA/s281.26"><num value="281.26">§281.26</num><heading>Applications for New Commercial Hazardous Waste Management Facility Permits</heading><content>The commission shall not process an application for a permit for a new commercial hazardous waste management facility unless the applicant provides the evidence or demonstration required under §305.50(12)(C)(i) or (ii) of this title (relating to Additional Requirements for an Application for a Solid Waste Permit).</content><note type="source"><p>Source Note: The provisions of this §281.26 adopted to be effective November 7, 1991, 16 TexReg 6051.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c281/scB"><num value="B">SUBCHAPTER B</num><heading>CONSISTENCY WITH TEXAS COASTAL MANAGEMENT PROGRAM</heading><section identifier="/us/state/tx/tac/t30/p1/c281/scB/s281.40"><num value="281.40">§281.40</num><heading>Purpose</heading><content>The purpose of this subchapter is to identify those agency actions which are subject to review for consistency with the goals and policies of the Texas Coastal Management Program pursuant to the Coastal Coordination Act, Texas Natural Resources Code, Subchapters C and F, Chapter 33, and rules of the Coastal Coordination Council contained in 31 Texas Administrative Code, Chapters 501 and 505. This shall be accomplished by adequately identifying, addressing, and resolving consistency issues to the maximum extent practicable prior to final agency action in order to avoid the referral of an agency action to the council for review and, thus, avoid any unnecessary delay in providing a final agency action with respect to a request or application for a permit, order, or other authorization from the commission.</content><note type="source"><p>Source Note: The provisions of this §281.40 adopted to be effective May 15, 1996, 21 TexReg 3798.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scB/s281.41"><num value="281.41">§281.41</num><heading>Condition of Approval</heading><content>It is a condition of commission approval of a proposed action that such action, if applicable, must be consistent with the goals and policies of the Texas Coastal Management Program (CMP) as provided in rules of the Coastal Coordination Council contained in Chapters 501, 503, 505, and 506, Title 31, Texas Administrative Code. The executive director shall review such applications for consistency with the CMP and provide a summary of such analysis and other statements in the draft permit and technical summary or referral to commission as provided by §281.21 and §281.22 of this title (relating to Draft Permit, Technical Summary, Fact Sheet, and Compliance Summary and Referral to Commission).</content><note type="source"><p>Source Note: The provisions of this §281.41 adopted to be effective May 15, 1996, 21 TexReg 3798.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scB/s281.42"><num value="281.42">§281.42</num><heading>Definitions</heading><content>The following words, terms, and phrases, where used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Application--Any request for a permit, order, or other authorization from the commission or executive director.(2) Coastal barrier--An undeveloped area on a barrier island, peninsula, or other protected area, as designated by United States Fish and Wildlife Service Maps.(3) Coastal Barrier Resources System--Consists of those undeveloped coastal barriers and other areas located on the coasts of the United States that are identified and generally depicted on the maps on file with the Secretary of the Interior entitled "Coastal Barrier Resources System" as defined under Section 4 of the Coastal Barrier Improvement Act of 1990.(4) Coastal Coordination Council (CCC or council)--A policy making and review body established by Senate Bill 1053, Coastal Coordination Act, Chapter 295, §§37 et seq, Texas Laws (72nd Legislature 1991), codified in Texas Natural Resources Code, §33.203(20).(5) Coastal Natural Resource Areas--Areas as defined by Texas Natural Resource Code, §33.203(1) are as follows:(A) coastal barriers;(B) coastal historic areas;(C) coastal preserves;(D) coastal shore areas;(E) coastal wetlands;(F) critical dune areas;(G) critical erosion areas;(H) gulf beaches;(I) hard substrate reefs;(J) oyster reefs;(K) submerged land;(L) special hazard areas;(M) submerged aquatic vegetation;(N) tidal sand or mud flats;(O) water of the open Gulf of Mexico; and(P) water under tidal influence.(6) Coastal waters--Waters in the open Gulf of Mexico and water subject to tidal influence.(7) Commission--The Texas Natural Resource Conservation Commission.(8) Critical area--A coastal wetland, an oyster reef, a hard substrate reef, submerged aquatic vegetation, or a tidal sand or mud flat (as defined in 31 TAC §501.3).(9) Priority segment--Those designated stream or bay segments delineated in Chapter 307 of this title (relating to Surface Water Quality Standards) and identified as priority segments because they are within the coastal boundary and exhibit characteristics of high water quality and require protection to maintain designated uses. Segment quality determinations were made using water quality traditional scoring for segment ranking and other factors to determine the quality of water relative to designated uses. These segments are listed in Appendix B of §281.48 of this title (relating to Appendices).(10) Program boundary--The boundary established in Texas Natural Resources Code, §33.2053(k), as defined in Title 31, Texas Administrative Code, §503.1 (Coastal Management Program Boundary).(11) Texas Coastal Management Program--The plan and related goals and policies as developed by the CCC in accordance with Texas Natural Resources Code, §33.204, and codified in 31 TAC Chapters 501, 503, and 505-506.(12) Tidal segment--Those designated stream or bay segments listed in §281.48 of this title Appendix C. These segments were designated as tidal segments because they have measurable elevation changes due to normal tides. In the absence of tidal elevation information, tidal segments are generally considered to be waters which typically have salinities of two parts per thousand or greater in a significant portion of the water column.</content><note type="source"><p>Source Note: The provisions of this §281.42 adopted to be effective May 15, 1996, 21 TexReg 3798.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scB/s281.43"><num value="281.43">§281.43</num><heading>Consistency Determination</heading><content>(a) A permit or other document approving or authorizing an action listed in §281.45 of this title (relating to Actions Subject to Consistency with the Goals and Policies of the Texas Coastal Management Program) shall include a statement providing either a consistency determination or a determination of no adverse effect as follows:(1) Consistency Determination. "The Texas Natural Resource Conservation Commission (TNRCC or commission) has reviewed this action for consistency with the goals and policies of the Texas Coastal Management Program (CMP) in accordance with the regulations of the Coastal Coordination Council (CCC) and has determined that the action is consistent with the applicable CMP goals and policies"; or(2) Determination of No Adverse Effect. "The TNRCC has reviewed this action and has found that the action will not adversely affect any applicable coastal natural resource areas (CNRA) identified in the Texas CMP."(b) The executive director shall review applicable requests and applications for consistency with CMP goals and policies and provide a brief summary of such analysis and other statements and recommendations in the draft permit and technical summary or referral to commission as provided by §281.21 and §281.22 of this title (relating to Draft Permit, Technical Summary, Fact Sheet, and Compliance Summary and Referral to Commission), respectively.(c) For actions that exceed the thresholds for possible referral to the council as provided by §281.46 of this title (relating to Actions Which May Be Referred to the Coastal Coordination Council for Review), a written explanation supporting the determination made under subsection (a) of this section shall be provided in the order, permit, or other written authorization. Such explanation shall describe the basis for the agency's determination, include a description of the action and its possible impacts on CNRAs, identify the applicable CMP goals and policies, and explain how the action is consistent with such goals and policies or why the action does not adversely affect any CNRAs.</content><note type="source"><p>Source Note: The provisions of this §281.43 adopted to be effective May 15, 1996, 21 TexReg 3798.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scB/s281.44"><num value="281.44">§281.44</num><heading>Notice</heading><content>(a) When providing notice of receipt of an application or request for an agency action subject to consistency with the Texas Coastal Management Program (CMP) goals and policies as provided by §281.45 of this title (relating to Action Subject to Consistency with the Goals and Policies of the Texas Coastal Management Program), the chief clerk of the Texas Natural Resource Conservation Commission (commission) shall include a statement in the notice providing that the application or requested action is subject to the CMP and must be consistent with the CMP goals and policies. All notices, whether mailed or published in a newspaper or the Texas Register, shall contain such statement. The executive director of the commission shall identify such applications or requests and assist the chief clerk in preparing the statement to be contained in the notice. The chief clerk shall include the secretary of the Coastal Coordination Council (council) on the public notice list maintained by the chief clerk for actions subject to the CMP.(b) Upon issuance of a permit, approval, or authorization of an action listed in §281.45 of this title (relating to Actions Subject to Consistency with the Goals and Policies of the Texas Coastal Management Program), the chief clerk shall provide to the council secretary a one-page notice that the commission or executive director has taken or authorized an action subject to the CMP.(c) The chief clerk shall maintain a record of all actions taken or authorized that are subject to the CMP and provide such record to the council secretary on a quarterly basis.</content><note type="source"><p>Source Note: The provisions of this §281.44 adopted to be effective May 15, 1996, 21 TexReg 3798.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scB/s281.45"><num value="281.45">§281.45</num><heading>Actions Subject to Consistency with the Goals and Policies of the Texas Coastal Management Program (CMP)</heading><content>(a) For purposes of this subchapter, the following is an exclusive list of actions taken or authorized by the Texas Natural Resource Conservation Commission (commission) or executive director that may adversely affect a coastal natural resource area and that must be consistent with the CMP goals and policies:(1) For actions outside the program boundary when issuing or approving:(A) an application for a new water right located within 200 stream miles of the coast and proposing an appropriation of 10,000 acre-feet of water per year or more;(B) an application to amend a water right located within 200 stream miles of the coast and requesting:(i) an increase in the annual appropriation of 10,000 acre-feet or more of water; or(ii) a change in purpose of use to a more consumptive use of 10,000 acre-feet or more of water per year;(C) an action under subparagraphs (A) or (B) of this paragraph shall not be considered an action subject to the CMP if it is an action taken to implement the Trans-Texas Water Program as approved in whole or in part, and found to be consistent with CMP goals and policies by the Trans-Texas Water Program Policy Management Committee, provided that the committee includes as voting members at least three members of the Coastal Coordination Council (CCC or council) or their designated representatives and a majority of those council members vote to approve and find that it is consistent with the CMP goals and policies.(2) For actions inside the program boundary when issuing or approving:(A) an application for:(i) a new water right proposing an appropriation of 5,000 acre-feet of water or more per year;(ii) an amendment to an existing water right requesting an increase in appropriation of 5,000 acre-feet of water per year or more, or a change in purpose of use to a more consumptive use of 5,000 acre-feet of water or more per year;(B) an action under subparagraph (A) of this paragraph shall not be considered an action subject to the CMP if it is an action taken to implement the Trans-Texas Water Program as approved in whole or in part, and found to be consistent with CMP goals and policies by the Trans-Texas Water Program Policy Management Committee, provided that the committee includes as voting members at least three members of the CCC or their designated representatives and a majority of those council members vote to approve and find that it is consistent with the CMP goals and policies;(C) the declaration of an emergency and request for an emergency release of water under Texas Water Code, §16.195;(D) an application for the treatment, storage, or disposal of municipal, industrial, non-hazardous or hazardous waste;(E) a petition for the creation of a special purpose district or approval of bonds for infrastructure on coastal barriers;(F) a refusal for approval of a levee improvement or other flood control project pursuant to Texas Water Code, §16.236, and Chapter 301 of this title (relating to Levee Improvement Districts, District Plans of Reclamation and Levees, and Other Improvements);(G) an application for state water quality certification of a federal permit pursuant to §401 of the federal Clean Water Act;(H) a wastewater discharge permit; and(I) a permit for a new concentrated animal feeding operation located one mile or less from a critical area or coastal waters; and(3) the promulgation of rules governing or authorizing actions listed in paragraph (1) and (2) of this subsection, including rules as listed in Appendix E of §281.48 of this title (relating to Appendices).(b) The review and action on an application or request for agency approval provided in subsection (a)(1), (2), and (3) of this section shall not be considered an action subject to the CMP goals and policies if the action is taken pursuant to rules that the council has certified as consistent with the CMP and:(1) for wastewater discharge permits, if the action is not a major permit modification that would increase pollutant loads to coastal waters or would result in the relocation of an outfall to a critical area;(2) for municipal, industrial, hazardous, or non-hazardous waste permits, if the action is not a Class III modification as defined in commission rules; or(3) for any other action under this subsection if the action only extends the time period of the existing authorization without authorizing new or additional work or activities or is not otherwise directly relevant to the policies in 31 Texas Administrative Code §501.14. Such specific actions include, but are not limited, to those listed in §281.47 of this title (relating to Actions Not Subject to Referral for Council Review).</content><note type="source"><p>Source Note: The provisions of this §281.45 adopted to be effective May 15, 1996, 21 TexReg 3798.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scB/s281.46"><num value="281.46">§281.46</num><heading>Actions Which May Be Referred to the Coastal Coordination Council</heading><content>Except as otherwise provided under 31 TAC §505.32 (Requirements for Referral for an Individual Agency Action), only the following actions may be referred to the CCC for review for consistency with the CMP goals and policies pursuant to 31 TAC §505.26 (Council Review and Approval of Thresholds for Referral):(1) For actions outside the program boundary when issuing or approving:(A) an application for a new water right located within 200 stream miles of the coast and requesting an appropriation of 10,000 acre-feet of water per year or more; and(B) an application to amend an existing water right located within 200 stream miles of the coast and seeking:(i) to increase an annual appropriation by 10,000 acre-feet or more per year; or(ii) to change the purpose of use of 10,000 acre-feet or more to a more consumptive use.(2) For actions inside the program boundary when issuing or approving:(A) an application for a new domestic wastewater discharge permit:(i) to discharge five million gallons per day (MGD) or more into a tidally influenced segment (see Appendix C of this title (relating to Appendices)); or(ii) to discharge one MGD or more into a priority segment (see Appendix B of §281.48 of this title);(B) an application for an amendment to a domestic wastewater discharge permit:(i) to increase the total discharge authorized by the permit into tidally influenced segments (Appendix C) to an amount greater than or equal to five MGD; or(ii) to increase the discharge to one MGD or more into a priority segment (Appendix B);(C) an application for a new industrial wastewater discharge permit to discharge effluent subject to the United States Environmental Protection Agency's categorical limits into a priority segment (Appendix B);(D) an application for an amendment to an industrial wastewater discharge permit:(i) to discharge effluent subject to categorical limits that increase mass loading of pollutants into priority segments (Appendix B); or(ii) to change the point of discharge from outside into a priority segment (Appendix B);(E) an application for a new confined animal feeding operation (CAFO) permit for a CAFO located within one mile of a critical area or coastal waters;(F) an application for a permit for a new municipal landfill to be located within a coastal wetland or a special flood hazard area, as defined in Title 44, Code of Federal Regulations (CFR) §59.1;(G) an application for an amendment which proposes an expansion of a municipal landfill into a coastal wetland or a special flood hazard area, as defined in 44 CFR §59.1;(H) an application for a new permit for a commercial or industrial waste landfill to be located within a coastal wetland or special flood hazard area, as defined 44 CFR §59.1;(I) an application for an amendment that proposes an expansion of a commercial or industrial waste landfill into a coastal wetland or a special flood hazard area, as defined in 44 CFR §59.1;(J) an application for a new hazardous waste landfill to be located within a coastal wetland or a special flood hazard area, as defined in 44 CFR §59.1;(K) an application for an amendment to expand a hazardous waste landfill into a coastal wetland or a special flood hazard area, as defined in 44 CFR §59.1;(L) an application for a new water right proposing an appropriation of 5,000 acre-feet of water or more per year;(M) an application to amend an existing water right requesting:(i) an increase in appropriation of 5,000 acre-feet of water per year or more;(ii) a change in purpose of use to a more consumptive use of 5,000 acre-feet of water per year or more;(N) a certification of a federal permit for the discharge of dredge or fill material, which affects one or more acres in a critical area (as defined in §281.42 of this title (relating to Definitions)) and authorizes the discharge of not less than 1,000 cubic yards of dredged or fill material.(3) For actions on coastal barriers only:(A) any application for creation of a special purpose district whose service area would encompass, or partially encompass, a Coastal Barrier Resources System Unit as defined by the United States Fish and Wildlife Service under the Federal Coastal Barrier Resources Act, 16 United States Code (USC) §3502(7); or(B) an application for approval of a bond issue to support infrastructure projects encompassing, or partially encompassing a Coastal Barrier Resources System Unit as defined by the United States Fish and Wildlife Service under the Federal Coastal Barrier Resource Act, 16 USC §3502(7).</content><note type="source"><p>Source Note: The provisions of this §281.46 adopted to be effective May 15, 1996, 21 TexReg 3798.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scB/s281.47"><num value="281.47">§281.47</num><heading>Actions Not Subject to Referral for Council Review</heading><content>The following individual agency actions are not subject to 31 Texas Administrative Code (TAC) Subchapter C, §§505.30-505.42, Consistency and Council Review of Individual State Agency Actions, providing these actions are taken pursuant to rules that the council has certified as consistent under 31 TAC Chapter 505, Subchapter B of the CMP rules (Council Certification of State Agency Rules and Approval of Thresholds for Referral):(1) applications for renewal of domestic wastewater discharge permits;(2) applications for renewal of industrial wastewater discharge permits;(3) applications for renewal of confined animal feeding operation permits;(4) applications for renewal of commercial or industrial landfill permits;(5) applications for renewal of hazardous waste landfills permits;(6) emergency suspension of permit conditions relating to beneficial inflows to affected bays and estuaries in accordance with Texas Water Code, §11.148;(7) declaration of an emergency and request for an emergency release of water under Texas Water Code, §16.195; and(8) any other actions not specifically listed under this subchapter or that do not otherwise meet the requirements of 31 TAC §505.32 (Requirements for Referral of an Individual State Agency Action).</content><note type="source"><p>Source Note: The provisions of this §281.47 adopted to be effective May 15, 1996, 21 TexReg 3798.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c281/scB/s281.48"><num value="281.48">§281.48</num><heading>Appendices</heading><content>(a) Appendix A. Texas Natural Resource Conservation Commission (TNRCC) Authorizations Reviewable by the Coastal Coordination Council.(b) Appendix B. Tidal Segments Designated as TNRCC Priority Waterbodies.(c) Appendix C. TNRCC Designated Tidal Segments Located Within the CMP Boundary.(d) Appendix D. Districts in the Coastal Barrier Resources System.(e) Appendix E. TNRCC Rules Relating to Actions Subject to the Coastal Management Program. All or part of the rules contained in these chapters may require certification by the council as consistent with the CMP before thresholds provided in §281.46 of this title (relating to Action Which May Be Referred to the Coastal Coordination Council) become effective. The listing of these chapters in their entirety is not intended to indicate that all these chapters or all rules in these chapters must be certified for the thresholds to become effective.</content><note type="source"><p>Source Note: The provisions of this §281.48 adopted to be effective May 15, 1996, 21 TexReg 3798.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c285"><num value="285">CHAPTER 285</num><heading>ON-SITE SEWAGE FACILITIES</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c285/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c285/scA/s285.1"><num value="285.1">§285.1</num><heading>Purpose and Applicability</heading><content>(a) Purpose. The purpose of this chapter is to provide a comprehensive regulatory program for the management of on-site sewage facilities (OSSFs), as prescribed by the Texas Health and Safety Code, Chapter 366. This chapter establishes minimum standards for planning materials, construction, installation, alteration, repair, extension, operation, maintenance, permitting, and inspection of OSSFs. This chapter also provides the procedures for the designation of local governmental entities as authorized agents. The licensing of installers, designated representatives, and site evaluators and the registration of apprentices is included in Chapter 30 of this title (relating to Occupational Licenses and Registrations). Unauthorized discharge of effluent into or adjacent to the waters in the state is prohibited.(b) Applicability. This chapter applies to:(1) any person who has an ownership interest in an OSSF; or(2) any person who participates in any activity relating to the development of planning materials, construction, installation, alteration, repair, extension, operation, maintenance, permitting, inspection, or investigation of an OSSF; or(3) any governmental entity that is, desires to be, or was, designated as an authorized agent.</content><note type="source"><p>Source Note: The provisions of this §285.1 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective December 17, 2001, 26 TexReg 10363.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scA/s285.2"><num value="285.2">§285.2</num><heading>Definitions</heading><content>The following words and terms in this section are in addition to the definitions in Chapter 3 and Chapter 30 of this title (relating to Definitions and Occupational Licenses and Registrations). The words and terms in this section, when used in this chapter, have the following meanings.(1) Aerobic digestion--The bacterial decomposition and stabilization of sewage in the presence of free oxygen.(2) Alter--To change an on-site sewage facility resulting in:(A) an increase in the volume of permitted flow;(B) a change in the nature of permitted influent;(C) a change from the planning materials approved by the permitting authority;(D) a change in construction; or(E) an increase, lengthening, or expansion of the treatment or disposal system.(3) Anaerobic digestion--The bacterial decomposition and stabilization of sewage in the absence of free oxygen.(4) Apprentice--An individual who has been properly registered with the executive director according to Chapter 30 of this title (relating to Occupational Licenses and Registrations), and is undertaking a training program under the direct supervision of a licensed installer.(5) Authorization to construct--Written permission from the permitting authority to construct an on-site sewage facility showing the date the permission was granted. The authorization to construct is the first part of the permit.(6) Authorized agent--A local governmental entity that has been delegated the authority by the executive director to implement and enforce the rules adopted under Texas Health and Safety Code, Chapter 366.(7) Borehole--A drilled hole four feet or greater in depth and one to three feet in diameter.(8) Certified professional soil scientist--An individual who has met the certification requirements of the American Society of Agronomy to engage in the practice of soil science.(9) Cesspool--A non-watertight, covered receptacle intended for the receipt and partial treatment of sewage. This device is constructed such that its sidewalls and bottom are open-jointed to allow the gradual discharge of liquids while retaining the solids for anaerobic decomposition.(10) Cluster system--A sewage collection, treatment, and disposal system designed to serve two or more sewage-generating units on separate legal tracts where the total combined flow from all units does not exceed 5,000 gallons per day.(11) Commercial or institutional facility--Any building that is not used as a single-family dwelling or duplex.(12) Compensation--A payment to construct, alter, repair, extend, maintain, or install an on-site sewage facility. Payment may be in the form of cash, check, charge, or other form of monetary exchange or exchange of property or services for service rendered.(13) Composting toilet--A self-contained treatment and disposal facility constructed to decompose non-waterborne human wastes through bacterial action.(14) Condensate drain--A pipe that is used for the disposal of water generated by air conditioners, refrigeration equipment, or other equipment.(15) Construct--To engage in any activity related to the installation, alteration, extension, or repair of an on-site sewage facility (OSSF), including all activities from disturbing the soils through connecting the system to the building or property served by the OSSF. Activities relating to a site evaluation are not considered construction.(16) Delegate--The executive director's act of assigning authority to implement the on-site sewage facility program under this chapter.(17) Designated representative--An individual who holds a valid license issued by the executive director according to Chapter 30 of this title (relating to Occupational Licenses and Registrations), and who is designated by the authorized agent to review permit applications, site evaluations, or planning materials, or conduct inspections on on-site sewage facilities.(18) Direct communication--The demonstrated ability of an installer and the apprentice to immediately communicate with each other, and the maintenance provider and the maintenance technician to immediately communicate with each other.(19) Direct supervision--The responsibility of an installer to oversee, direct, and approve all actions of an apprentice relating to the construction of an on-site sewage facility, or the responsibility of a maintenance provider to oversee, direct, and approve all actions of a maintenance technician relating to the maintenance of an on-site sewage facility.(20) Discharge--To deposit, conduct, drain, emit, throw, run, allow to seep, or otherwise release or dispose of, or to allow, permit, or suffer any of these acts or omissions.(21) Edwards Aquifer--That portion of an arcuate belt of porous, waterbearing predominantly carbonate rocks (limestones) known as the Edwards (Balcones Fault Zone) Aquifer trending from west to east to northeast in Kinney, Uvalde, Medina, Bexar, Comal, Hays, Travis, and Williamson Counties; and composed of the Salmon Peak Limestone, McKnight Formation, West Nueces Formation, Devil's River Limestone, Person Formation, Kainer Formation, Edwards Group, and Georgetown Formation, or as amended under Chapter 213 of this title (relating to Edwards Aquifer). The permeable aquifer units generally overlie the less-permeable Glen Rose Formation to the south, overlie the less-permeable Comanche Peak and Walnut formations north of the Colorado River, and underlie the less-permeable Del Rio Clay regionally.(22) Edwards Aquifer Recharge Zone--That area where the stratigraphic units constituting the Edwards Aquifer crop out, including the outcrops of other geologic formations in proximity to the Edwards Aquifer, where caves, sinkholes, faults, fractures, or other permeable features would create a potential for recharge of surface waters into the Edwards Aquifer. The recharge zone is identified as a geographic area delineated on official maps located in the agency's central office and in the appropriate regional office, or as amended by Chapter 213 of this title (relating to Edwards Aquifer).(23) Extend--To alter an on-site sewage facility resulting in an increase in capacity, lengthening, or expansion of the existing treatment or disposal system.(24) Floodplain (100-year)--Any area susceptible to inundation by flood waters from any source and subject to the statistical 100-year flood (has a 1% chance of flooding each year).(25) Floodway--The channel of a watercourse and the adjacent land areas (within a portion of the 100-year floodplain) that must be reserved in order to discharge the 100-year flood without cumulatively increasing the water surface elevation more than one foot above the 100-year flood elevation before encroachment into the 100-year floodplain.(26) Geotextile filter fabric--A non-woven fabric suitable for wastewater applications.(27) Gravel-less drainfield pipe--An eight-inch or ten-inch diameter geotextile fabric-wrapped piping product without gravel or media.(28) Grease interceptor--Floatation chambers where grease floats to the water surface and is retained while the clearer water underneath is discharged.(29) Groundwater--Subsurface water occurring in soils and geologic formations that are fully saturated either year-round or on a seasonal or intermittent basis.(30) Holding tank--A watertight container equipped with a high-level alarm used to receive and store sewage pending its delivery to an approved treatment process.(31) Individual--A single living human being.(32) Install--To put in place or construct any portion of an on-site sewage facility.(33) Installer--An individual who is compensated by another to construct an on-site sewage facility.(34) Local governmental entity--A municipality, county, river authority, or special district, including groundwater conservation districts, soil and water conservation districts, and public health districts.(35) Maintenance--Required or routine performance checks, examinations, upkeep, cleaning, or mechanical adjustments to an on-site sewage facility, including replacement of pumps, filters, aerator lines, valves, or electrical components. Maintenance does not include alterations.(36) Maintenance findings--The results of a required performance check or component examination on a specific on-site sewage facility.(37) Maintenance provider--An individual who maintains on-site sewage facilities for compensation. Through August 31, 2009, a maintenance company is a person or business that maintains on-site sewage facilities for compensation.(38) Maintenance technician--An individual who holds a valid registration issued by the executive director to maintain on-site sewage facilities and works under a maintenance provider.(39) Malfunctioning OSSF--An on-site sewage facility that is causing a nuisance or is not operating in compliance with this chapter.(40) Manufactured housing community--Any area developed or used for lease or rental of space for two or more manufactured homes.(41) Multi-unit residential development--Any area developed or used for a structure or combination of structures designed to lease or rent space to house two or more families.(42) Notice of approval--Written permission from the permitting authority to operate an on-site sewage facility. The notice of approval is the final part of the permit.(43) Nuisance--(A) sewage, human excreta, or other organic waste discharged or exposed in a manner that makes it a potential instrument or medium in the transmission of disease to or between persons;(B) an overflow from a septic tank or similar device, including surface discharge from or groundwater contamination by a component of an on-site sewage facility; or(C) a blatant discharge from an OSSF.(44) On-site sewage disposal system--One or more systems that:(A) do not treat or dispose of more than 5,000 gallons of sewage each day; and(B) are used only for disposal of sewage produced on a site where any part of the system is located.(45) On-site sewage facility (OSSF)--An on-site sewage disposal system.(46) On-site waste disposal order--An order, ordinance, or resolution adopted by a local governmental entity and approved by the executive director.(47) Operate--To use an on-site sewage facility.(48) Owner--A person who owns property served by an on-site sewage facility (OSSF), or a person who owns an OSSF. This includes any person who holds legal possession or ownership of a total or partial interest in the structure or property served by an OSSF.(49) Owner's agent--An installer, professional sanitarian, or professional engineer who is authorized to submit the permit application and the planning materials to the permitting authority on behalf of the owner.(50) Permit--An authorization, issued by the permitting authority, to construct or operate an on-site sewage facility. The permit consists of the authorization to construct (including the approved planning materials) and the notice of approval.(51) Permitting authority--The executive director or an authorized agent.(52) Planning material--Plans, applications, site evaluations, and other supporting materials submitted to the permitting authority for the purpose of obtaining a permit.(53) Platted--The subdivision of property which has been recorded with a county or municipality in an official plat record.(54) Pretreatment tank--A tank placed ahead of a treatment unit that functions as an interceptor for materials such as plastics, clothing, hair, and grease that are potentially harmful to treatment unit components.(55) Professional engineer--An individual licensed by the Texas Board of Professional Engineers to engage in the practice of engineering in the State of Texas.(56) Professional sanitarian--An individual registered by the Texas Department of State Health Services to carry out educational and inspection duties in the field of sanitation in the State of Texas.(57) Proprietary system--An on-site sewage facility treatment or disposal system that is produced or marketed under exclusive legal right of the manufacturer or designer or for which a patent, trade name, trademark, or copyright is used by a person or company.(58) Recharge feature--Permeable geologic or manmade feature located on the Edwards Aquifer Recharge Zone where:(A) a potential for hydraulic interconnectedness between the surface and the aquifer exists; and(B) rapid infiltration from the on-site sewage facility to the subsurface may occur.(59) Recreational vehicle park--A single tract of land that has rental spaces for two or more vehicles that are intended for recreational use only and has a combined wastewater flow of less than 5,000 gallons per day.(60) Regional office--A regional office of the agency.(61) Repair--To replace any components of an on-site sewage facility (OSSF) in situations not included under emergency repairs according to §285.35 of this title (relating to Emergency Repairs), excluding maintenance. The replacement of tanks or drainfields is considered a repair and requires a permit for the entire OSSF system.(62) Scum--A mass of organic or inorganic matter which floats on the surface of sewage.(63) Secondary treatment--The process of reducing pollutants to the levels specified in Chapter 309 of this title (relating to Domestic Wastewater Effluent Limitation and Plant Siting).(64) Seepage pit--An unlined covered excavation in the ground which operates in essentially the same manner as a cesspool.(65) Septic tank--A watertight covered receptacle constructed to receive, store, and treat sewage by: separating solids from the liquid; digesting organic matter under anaerobic conditions; storing the digested solids through a period of detention; and allowing the clarified liquid to be disposed of by a method approved under this chapter.(66) Sewage--Waste that:(A) is primarily organic and biodegradable or decomposable; and(B) originates as human, animal, or plant waste from certain activities, including the use of toilet facilities, washing, bathing, and preparing food.(67) Single family dwelling--A structure that is either built on or brought to a site, for use as a residence for one family. A single family dwelling includes all detached buildings located on the residential property and routinely used only by members of the household of the single family dwelling.(68) Site evaluator--An individual who holds a valid license issued by the executive director according to Chapter 30 of this title (relating to Occupational Licenses and Registrations) and who conducts preconstruction site evaluations, including visiting a site and performing soil analysis, a site survey, or other activities necessary to determine the suitability of a site for an on-site sewage facility. A professional engineer may perform site evaluations without obtaining a site evaluator license.(69) Sludge--A semi-liquid mass of partially decomposed organic and inorganic matter which settles at or near the bottom of a receptacle containing sewage.(70) Soil--The upper layer of the surface of the earth that serves as a natural medium for the growth of plants.(71) Soil absorption system--A subsurface method for the treatment and disposal of sewage which relies on the soil's ability to treat and absorb moisture and allow its dispersal by lateral and vertical movement through and between individual soil particles.(72) Subdivision--A division of a tract of land, regardless of whether it is made by using a metes and bounds description in a deed of conveyance or in a contract for a deed, by using a contract of sale or other executory contract to convey, or by using any other method.(73) Testing and reporting--Routine inspection, sampling and performance checks performed by the maintenance provider or maintenance technician and the submittal of findings to the OSSF owner and the permitting authority. Testing and reporting does not include repair or replacement of parts.(74) Well--A water well, injection well, dewatering well, monitoring well, piezometer well, observation well, or recovery well as defined under Texas Water Code, Chapters 26, 32, and 33, and 16 TAC Chapter 76 (relating to Water Well Drillers and Water Well Pump Installers).</content><note type="source"><p>Source Note: The provisions of this §285.2 adopted to be effective February 5, 1997, 22 TexReg 1114; amended to be effective January 8, 1999, 24 TexReg 139; amended to be effective June 13, 2001, 26 TexReg 4115; amended to be effective December 17, 2001, 26 TexReg 10363; amended to be effective August 3, 2006, 31 TexReg 6013; amended to be effective September 11, 2008, 33 TexReg 7536; amended to be effective July 6, 2023, 48 TexReg 3508.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scA/s285.3"><num value="285.3">§285.3</num><heading>General Requirements</heading><content>(a) Permit required. A person shall hold a permit and an approved plan to construct, alter, repair, extend, or operate an on-site sewage facility (OSSF) unless the OSSF meets one of the exceptions in subsection (f) of this section.(1) All aspects of the permitting, planning, construction, operation, and maintenance of OSSFs shall be conducted according to this chapter, or according to an order, ordinance, or resolution of an authorized agent.(2) The executive director is the permitting authority unless a local governmental entity has an OSSF order, ordinance, or resolution approved by the executive director. In areas where the executive director is the permitting authority, the staff from the appropriate regional office shall be responsible for the proper implementation of this chapter.(3) Permits shall be transferred to a new owner automatically upon sale or other legal transfer of an OSSF.(4) Conditioning of Permits. The permitting authority may require conditions to a permit in order to ensure that the permitted OSSF system will operate in accordance with the planning materials and system approval. Failure to comply with these conditions is a violation of the permit and this chapter. Any violation of a condition of a permit that would be considered an alteration as defined in §285.2(2) of this title (relating to Definitions) would require a new permit.(b) General Application Requirements.(1) The owner or owner's agent must obtain an authorization to construct from the permitting authority before construction may begin on an OSSF. Before an authorization to construct can be issued, the permitting authority shall require submittal of the following from the owner or owner's agent:(A) an application, on the form provided by the permitting authority;(B) all planning materials, according to §285.5 of this title (relating to Submittal Requirements for Planning Materials);(C) the results of a site evaluation, conducted according to §285.30 of this title (relating to Site Evaluation); and(D) the appropriate fee.(2) Variance requests shall be submitted with the application and shall be reviewed by the permitting authority according to subsection (h) of this section.(3) Before the permitting authority issues an authorization to construct, the owner of OSSFs identified in §285.91(12) of this title (relating to Tables) or the owner's agent, must record an affidavit in the county deed records of the county or counties where the OSSF is located. Additionally, the owner or the owner's agent must submit, to the permitting authority, an affidavit affirming the recording. An example of the affidavit is located in §285.90(2) of this title (relating to Figures). The affidavit must include:(A) the owner's full name;(B) the legal description of the property;(C) that an OSSF requiring continuous maintenance is located on the property;(D) that the permit for the OSSF is transferred to the new owner upon transfer of the property; and(E) that at any time after the initial two-year service policy, the owner of an aerobic treatment system for a single family residence shall either obtain a maintenance contract within 30 days of the transfer or maintain the system personally.(c) Action on Applications. The permitting authority shall either approve or deny an application within 30 days of receiving an application. If the application and planning materials are approved, the permitting authority shall issue an authorization to construct. If the application and planning materials are denied, the permitting authority shall explain the reasons for the denial in writing to the owner, and the owner's agent.(d) Construction and Inspection.(1) An authorization to construct is valid for one calendar year from the date of its issuance. If the installer does not request a construction inspection by the permitting authority within one year of the issuance of the authorization to construct, the authorization to construct expires, and the owner will be required to submit a new application and application fee before an OSSF can be installed. A new application and application fee are not required if the owner decides not to install an OSSF.(2) The installer shall notify the permitting authority at least five working days (Monday through Friday, excluding holidays) before the date the OSSF will be ready for inspection.(3) The permitting authority shall conduct a construction inspection.(4) If the OSSF does not pass the construction inspection, the permitting authority shall:(A) at the close of the inspection, advise the owner and the owner's agent, if present, of the deficiencies identified and that the OSSF cannot be used until it passes inspection; and(B) within seven calendar days after the inspection, issue a letter to the owner and the owner's agent listing the deficiencies identified and stating that the OSSF cannot be used until it passes inspection.(5) If a reinspection is necessary, a reinspection fee may be assessed by the permitting authority.(6) The reinspection fee must be paid before the reinspection is conducted.(e) Notice of Approval.(1) Within seven calendar days after the OSSF has passed the construction inspection, the permitting authority shall issue, to the owner or owner's agent, a written notice of approval for the OSSF.(2) The notice of approval shall have a unique identification number, and shall be issued in the name of the owner.(f) Exceptions.(1) An owner of an OSSF will not be required to comply with the permitting, operation, and installation requirements of this chapter if the OSSF is not creating a nuisance and:(A) the OSSF was installed before September 1, 1989, provided the system has not been altered, and is not in need of repair;(B) the OSSF was installed before the effective date of the order, ordinance, or resolution in areas where the local governmental entity had an approved order, ordinance, or resolution dated before September 1, 1989, provided the system has not been altered and is not in need of repair; or(C) the owner received authorization to construct from a permitting authority before the effective date of this chapter.(2) No planning materials, permit, and inspections are required for an OSSF for a single family dwelling located on a tract of land that is ten acres or larger provided the OSSF complies with all other requirements of Chapter 285, Subchapter D: Planning, Construction, and Installation Standards for OSSFs, and:(A) the OSSF is not causing a nuisance or polluting groundwater;(B) all parts of the OSSF are at least 100 feet from the property line;(C) the effluent is disposed of on the property; and(D) the single family dwelling is the only dwelling located on that tract of land.(3) Connecting recreational vehicles or manufactured homes to rental spaces is not considered construction if the existing OSSF system is not altered.(4) If a tract of land that is owned by the federal government contains separately leased individual parts, each leased part is considered a separate tract of land for the purposes of 30 TAC Chapter 285.(g) Exclusions. The following systems are not authorized by this subchapter and may require a permit under Chapter 205 or Chapter 305 of this title (relating to General Permits for Waste Discharges or Consolidated Permits, respectively):(1) one or more systems that cumulatively treat and dispose of more than 5,000 gallons of sewage per day on one piece of property;(2) any system that accepts waste that is either municipal, agricultural, industrial, or other waste as defined in Texas Water Code, Chapter 26;(3) any system that will discharge into or adjacent to waters in the state; or(4) any new cluster systems.(h) Variances. Requests for variances from provisions of this chapter may be considered by the appropriate permitting authority on a case-by-case basis.(1) A variance may be granted if the owner, or a professional sanitarian or professional engineer representing the owner, demonstrates to the satisfaction of the permitting authority that conditions are such that equivalent or greater protection of the public health and the environment can be provided by alternate means. Variances for separation distances shall not be granted unless the provisions of this chapter cannot be met.(2) Any request for a variance under this subsection must contain planning materials prepared by either a professional sanitarian or a professional engineer (with appropriate seal, date, and signature).(i) Unauthorized systems. Boreholes, cesspools, and seepage pits are prohibited for installation or use. Boreholes, cesspools, and seepage pits that treat or dispose of less than 5,000 gallons of sewage per day shall be closed according to §285.36 of this title (relating to Abandoned Tanks, Boreholes, Cesspools, and Seepage Pits). Boreholes, cesspools, and seepage pits that exceed 5,000 gallons of sewage per day must be closed as a Class V injection well under Chapter 331 of this title (relating to Underground Injection Control).</content><note type="source"><p>Source Note: The provisions of this §285.3 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective September 11, 2008, 33 TexReg 7536; amended to be effective December 27, 2012, 37 TexReg 9947; amended to be effective July 6, 2023, 48 TexReg 3508.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scA/s285.4"><num value="285.4">§285.4</num><heading>Facility Planning</heading><content>(a) Land planning and site evaluation. Property that will use an on-site sewage facility (OSSF) for sewage disposal shall be evaluated for overall site suitability. For property located on the Edwards Aquifer recharge zone, see §285.40 of this title (relating to OSSFs on the Recharge Zone of the Edwards Aquifer) for additional requirements. The following requirements apply to all sites where an OSSF may be located.(1) Residential lot sizing.(A) Platted or unplatted subdivisions served by a public water system. Subdivisions of single family dwellings platted or created after the effective date of this section, served by a public water supply and using individual OSSFs for sewage disposal, shall have lots of at least 1/2 acre.(B) Platted or unplatted subdivisions not served by a public water system. Subdivisions of single family dwellings platted or created after the effective date of this section, not served by a public water supply and using individual OSSFs, shall have lots of at least one acre.(C) A platted or unplatted subdivision where one tract is divided into four or fewer parts; where each tract is five acres or larger; and each tract is to be sold, given, or otherwise transferred to an individual who is related to the owner within the third degree by consanguinity or affinity, as determined under Texas Government Code, Chapter 573 is exempt from submitting planning materials required in this section.(2) Manufactured housing communities or multi-unit residential developments. The owners of manufactured housing communities or multi-unit residential developments that are served by an OSSF and rent or lease space shall submit a sewage disposal plan to the permitting authority for approval. The total anticipated sewage flow for the individual tract of land shall not exceed 5,000 gallons per day. The plan shall be prepared by a professional engineer or professional sanitarian. This plan is in addition to the requirements of subsection (c) of this section.(b) Approval of OSSF systems on existing small lots or tracts.(1) Existing small lots or tracts that do not meet the minimum lot size requirements under subsection (a)(1)(A) or (B) of this section, and were either subdivided before January 1, 1988, or had a site-specific sewage disposal plan approved between January 1, 1988, and the effective date of this section, are allowed to use OSSFs, but the OSSFs must comply with the requirements set forth in this Chapter.(2) The owner of a single family dwelling on an existing small lot or tract (property 1) may transport the wastewater from the dwelling to an OSSF at another location (property 2) provided that:(A) both properties (properties 1 and 2) are owned by the same person;(B) the owner or owner's agent demonstrates that no OSSF authorized under these rules can be installed on the property which contains the single-family dwelling (property 1);(C) if property not owned by the owner of properties 1 and 2 must be crossed in transporting the sewage, the application includes all right-of-ways and permanent easements needed for the sewage conveyance lines; and(D) the application includes an affidavit indicating that the owner or the owner's agent recorded the information required by §285.3(b)(3) of this title (relating to General Requirements) on the real property deeds of both properties (properties 1 and 2). The deed recording shall state that the properties cannot be sold separately.(c) Review of subdivision or development plans. Persons proposing residential subdivisions, manufactured housing communities, multi-unit residential developments, business parks, or other similar structures that use OSSFs for sewage disposal shall submit planning materials for these developments to the permitting authority and receive approval prior to submitting an OSSF application.(1) The planning materials must be prepared by a professional engineer or professional sanitarian and must include:(A) an overall site plan;(B) a topographic map;(C) a 100-year floodplain map;(D) a soil survey;(E) the locations of water wells;(F) the locations of easements, as identified in §285.91(10) of this title (relating to Tables);(G) a comprehensive drainage plan;(H) a complete report detailing the types of OSSFs to be considered and their compatibility with area-wide drainage and groundwater; and(I) other requirements, including Edwards Aquifer requirements that are pertinent to the proposed OSSF.(2) If the proposed development includes restaurants or buildings with food service establishments, the planning materials must show adequate land area for doubling the land needed for the treatment units. The designer may consider increasing the amount of land area for the treatment units beyond doubling the minimum required area.(3) The permitting authority will either approve or deny the planning materials, in writing, within 45 days of receipt.</content><note type="source"><p>Source Note: The provisions of this §285.4 adopted to be effective February 5, 1997, 22 TexReg 1114; amended to be effective June 13, 2001, 26 TexReg 4115; amended to be effective September 11, 2008, 33 TexReg 7536; amended to be effective December 27, 2012, 37 TexReg 9947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scA/s285.5"><num value="285.5">§285.5</num><heading>Submittal Requirements for Planning Materials</heading><content>(a) Submittal of planning material. Planning materials required under this chapter shall be submitted by the owner, or owner's agent, to the permitting authority for review and approval according to this section. All planning materials shall comply with this chapter and shall be submitted according to §285.91(9) of this title (relating to Tables). A legal description of the property where an on-site sewage facility (OSSF) is to be installed must be included with the permit application. Additionally, a scale drawing of the OSSF, all structures served by the OSSF, and all items specified in §285.30(b) of this title (relating to Site Evaluation) and §285.91(10) of this title must be included with the permit application.(1) Planning materials prepared by an owner or installer. Either the owner or installer may prepare the planning materials for any proposed OSSF not requiring the preparation of plans according to paragraphs (2) or (3) of this subsection.(2) Planning materials prepared by a professional engineer or professional sanitarian. OSSF planning materials shall be prepared by a professional engineer or professional sanitarian (with appropriate seal, date, and signature) as follows, unless otherwise specified in this chapter:(A) any proposals for treatment or disposal that are not standard as described in Subchapter D of this chapter (relating to Planning, Construction, and Installation Standards for OSSFs) unless otherwise specified under §285.91(9) of this title;(B) any proposal for an OSSF to serve manufactured housing communities, recreational vehicle parks, or multi-unit residential developments where spaces are rented or leased;(C) all subdivision and development plans as required in §285.4(c) of this title (relating to Facility Planning);(D) a proposal for multiple treatment and disposal systems on large tracts of land; or(E) all applications for new OSSF construction within the Edwards Aquifer Recharge Zone.(3) Planning materials prepared by a professional engineer. OSSF planning materials shall be prepared by a professional engineer (with appropriate seal, date, and signature) as follows, unless otherwise specified in this chapter:(A) all proposals for non-standard treatment systems that require secondary treatment as detailed in Subchapter D of this chapter; or(B) verifications that precast concrete septic tanks conform to the requirements of §285.32(b)(1)(E)(i) of this title (relating to Criteria for Sewage Treatment Systems); or(C) designs demonstrating that the requirements of §285.31(c)(2) of this title (relating to Selection Criteria for Treatment and Disposal Systems) related to the regulated floodway have been met.(b) Review of planning materials.(1) Standard planning materials. All planning materials for standard treatment or disposal systems shall be reviewed by the permitting authority.(2) Non-standard planning materials. The executive director shall review and respond to initial plans for all non-standard planning material for any system described in §285.32(d) of this title and §285.33(d)(6) of this title (relating to Criteria for Effluent Disposal Systems) within ten calendar days of receipt of the planning materials. After favorable review by the executive director, the same non-standard system planning materials may be reviewed and approved by the authorized agent for different locations, provided the same site conditions exist for which the planning materials were developed.(3) Proprietary planning materials. Planning materials for proprietary treatment or disposal systems, as described in §285.32(c) or §285.33(c) of this title, shall be submitted to the executive director for review. The systems and the testing protocol shall be approved by the executive director before the systems can be installed in the state.</content><note type="source"><p>Source Note: The provisions of this §285.5 adopted to be effective February 5, 1997, 22 TexReg 1114; amended to be effective June 13, 2001, 26 TexReg 4115; amended to be effective July 31, 2002, 27 TexReg 6714; amended to be effective September 11, 2008, 33 TexReg 7536; amended to be effective December 27, 2012, 37 TexReg 9947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scA/s285.6"><num value="285.6">§285.6</num><heading>Cluster Systems</heading><content>(a) Cluster systems are not authorized under this chapter after the effective date of these rules. Cluster systems may be authorized under other chapters of this title including Chapter 331 of this title (relating to Underground Injection Control).(b) Existing cluster systems may be repaired or altered under this chapter. However, the alteration may not result in an increase in the volume of the permitted flow or change the nature of the permitted flow. Existing cluster systems may be required to be authorized under other chapters of this title when the system has to be expanded or altered in a manner that increases the volume or changes the nature of the permitted flow.</content><note type="source"><p>Source Note: The provisions of this §285.6 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective December 27, 2012, 37 TexReg 9947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scA/s285.7"><num value="285.7">§285.7</num><heading>Maintenance Requirements</heading><content>(a) Maintenance contract requirements. Maintenance contract requirements for all on-site sewage facilities (OSSFs) are identified in §285.91(12) of this title (relating to Tables). The permit holder shall ensure that the OSSF is properly operated and maintained in accordance with this chapter. Homeowners who maintain their own systems are exempt from contract requirements, as provided in subsection (d)(4) of this section.(b) Maintenance provider.(1) Effective September 1, 2009, in order to perform maintenance on an OSSF, an individual must either be licensed by the TCEQ as a maintenance provider or registered by the TCEQ as a maintenance technician and employed by a licensed maintenance provider. Prior to September 1, 2009, in order to perform maintenance on an OSSF, an individual must be registered by the TCEQ as a maintenance provider.(2) Effective September 1, 2009, the maintenance provider will be responsible for fulfilling the requirements of the maintenance contract. The maintenance provider will be responsible for the work performed by registered maintenance technicians under their direct supervision. Prior to September 1, 2009, the maintenance company will be responsible for fulfilling the requirements of the maintenance contract.(3) Effective September 1, 2009, the maintenance provider must sign all maintenance reports.(c) Initial Two-Year Service Policy. The initial two-year service policy shall be effective for two years from the date the OSSF is first used. For a new single family dwelling, this date is the date of sale by the builder. For an existing single family dwelling this date is the date the notice of approval is issued by the permitting authority. The owner, or owner's agent shall provide the permitting authority with a copy of the signed initial two-year service policy before the system is approved for use. The initial service policy shall meet the minimum guidelines for maintenance contracts, as described in subsection (d)(1)(A) - (F) of this section and the individual fulfilling the service policy shall be a maintenance provider or a maintenance technician working under the supervision of a maintenance provider.(d) Maintenance contracts. OSSFs required to have maintenance contracts are identified in §285.91(12) of this title.(1) Contract provisions. The OSSF maintenance contract shall, at a minimum:(A) list items that are covered by the contract;(B) specify a time frame in which the maintenance provider or maintenance technician will visit the property in response to a complaint by the property owner regarding the operation of the system;(C) specify the name of the maintenance provider who is responsible for fulfilling the terms of the maintenance contract;(D) identify the frequency of routine maintenance and the frequency of the required testing and reporting;(E) identify who is responsible for maintaining the disinfection unit; and(F) indicate the business physical address and telephone number for the maintenance provider.(2) Contract submittals. Unless the owner maintains the system, as excepted by paragraph (4) of this subsection, a copy of the signed maintenance contract shall be provided by the owner to the permitting authority 30 days before the expiration of the initial two-year service policy. For the time period after the initial two-year service policy, the owner is required to have a new maintenance contract signed and submitted to the permitting authority at least 30 days before the contract expires unless the owner maintains the system, as excepted by paragraph (4) of this subsection.(3) Amendments or terminations.(A) Effective September 1, 2009, if the maintenance provider discontinues the maintenance contract, the maintenance provider shall notify, in writing, the permitting authority, the manufacturer, and the owner at least 30 days before the date service will cease. Prior to September 1, 2009, if the maintenance company discontinues the maintenance contract, the maintenance company shall notify, in writing, the permitting authority, the manufacturer, and the owner at least 30 days before the date service will cease.(B) Effective September 1, 2009, if the owner discontinues the maintenance contract, the maintenance provider shall notify, in writing, the permitting authority and the manufacturer at least 30 days before the date service will cease. Prior to September 1, 2009, if the owner discontinues the maintenance contract, the maintenance company shall notify, in writing, the permitting authority and the manufacturer at least 30 days before the date service will cease.(C) Effective September 1, 2009, if a maintenance contract is discontinued or terminated, the owner shall contract with another maintenance provider and provide the permitting authority with a copy of the new signed maintenance contract no later than 30 days after termination, unless the owner meets the requirements of paragraph (4) of this subsection. Prior to September 1, 2009, if a maintenance contract is discontinued or terminated, the owner shall contract with another maintenance company and provide the permitting authority with a copy of the new signed maintenance contract no later than 30 days after termination, unless the owner meets the requirements of paragraph (4) of this subsection.(4) Exceptions to maintenance contract. At the end of the initial two-year service policy, the owner of an OSSF for a single family residence shall either maintain the system personally or obtain a new maintenance contract.(A) If the residence is sold before the end of the initial two-year service policy period, the terms of the initial service policy will apply to the new owner.(B) An owner may not maintain an OSSF under the provisions of this section for commercial, speculative residential, or multifamily property.(e) Testing and reporting. OSSFs that must be tested are identified in §285.91(12) of this title.(1) Effective September 1, 2009, the maintenance provider shall test and report for each system as required in §285.91(12) of this title. Prior to September 1, 2009, the maintenance company shall test and report for each system as required in §285.91(12) of this title. The report must:(A) include any responses to owner complaints; the results of the maintenance provider's findings as described in §285.90(3) of this title (relating to Figures) and the test results as required in §285.91(4) of this title, including procedures for the maintenance of the unit approved by the executive director; and(B) be submitted to the permitting authority and the owner within 14 days after the date the test is performed.(2) To provide the owner with a record of the maintenance check, the maintenance provider shall install a weather resistant tag, or some other form of weather resistant identification, on the system at the beginning of each maintenance contract. The weather resistant tag or other form of weather resistant identification must be located on the outside of the motor cover, control panel, or breaker box. This identification shall:(A) identify the maintenance provider;(B) list the telephone number of the maintenance provider;(C) specify the start date of the contract; and(D) be either punched or indelibly marked with the date the system was checked at the time of each maintenance check, including any maintenance check in response to owner complaints.(3) The number of required tests may be reduced to two per year for all systems having electronic monitoring and automatic telephone or radio access that will notify the maintenance provider of system or components failure and will monitor the amount of disinfection in the system. The maintenance provider shall be responsible for ensuring that the electronic monitoring and automatic telephone or radio access systems are working properly.(4) The owner of an OSSF for a single family residence who elects to maintain their unit through the exemption described in subsection (d)(4) of this section is not subject to testing and reporting requirements.(f) Replacement parts. The manufacturer of the installed on-site aerobic system shall make available to the homeowner all replacement parts for that aerobic system to any homeowner who elects to maintain the on-site aerobic system as identified in subsection (d)(4) of this section. The manufacturer shall also make replacement parts available to installers and maintenance providers. Failure to do so may result in removal of the manufacturer's product(s) from the list of approved systems.(g) Inspections by authorized agents or commission. An authorized agent or the commission may inspect an on-site sewage system using aerobic treatment at any time.</content><note type="source"><p>Source Note: The provisions of this §285.7 adopted to be effective September 11, 2008, 33 TexReg 7536; amended to be effective July 6, 2023, 48 TexReg 3508.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scA/s285.8"><num value="285.8">§285.8</num><heading>Multiple On-Site Sewage Facility (OSSF) Systems on One Large Tract of Land</heading><content>(a) The executive director may authorize the permitting authority to issue a permit for multiple treatment and disposal systems on a tract of land as an OSSF, instead of as a municipal wastewater treatment facility, if:(1) the systems are located on a tract of land of 100 acres or more;(2) the systems are used:(A) on a seasonal or intermittent basis, which means any combination of weekends (Friday through Sunday) plus 60 weekdays (Monday through Thursday) or less during a calendar year; and(B) the remainder of the year by employees, voluntary staff, or contractors performing work-related duties on the tract of land.(3) the anticipated combined flow, calculated using either actual water use data or the data from §285.91(3) of this title (relating to Tables), from all systems is less than 5,000 gallons per day (gpd) on an annual average basis (the arithmetic average of all daily flows from the preceding 12 consecutive calendar months);(4) the peak flow, calculated using either actual water use data or the data from §285.91(3) of this title, for each individual system is less than 5,000 gpd; and(5) the systems are used only for disposal of sewage produced on the tract of land where the systems are located.(b) To obtain an OSSF permit for multiple treatment and disposal systems, the owner or owner's agent must submit the following to the permitting authority:(1) an application on the form provided by the permitting authority;(2) all planning materials according to §285.5(a)(2) of this title (relating to Submittal Requirements for Planning Materials). The planning materials must include details on all existing systems, as well as any proposed new systems;(3) the results of a site evaluation, conducted according to §285.30 of this title (relating to Site Evaluation);(4) the location, types of systems, size of systems, and if permitted, information from the permit for all existing systems; and(5) the appropriate fee.(c) The permitting authority must submit the items listed in subsection (b) of this section to the executive director within five working days after receipt. The executive director shall review the materials submitted and shall determine if the systems may be permitted as an OSSF, the systems do not meet the requirements of this section, or the application is incomplete. The executive director shall provide the determination in writing to the owner or the owner's agent, and to the permitting authority, within 30 working days after receipt of the materials listed in subsection (b) of this section from the permitting authority.(d) Executive director determination.(1) If the executive director determines that the systems may be permitted as an OSSF, the permitting authority shall issue an authorization to construct for all new systems and a permit for existing systems. If the permitting authority issues an authorization to construct, all steps in §285.3(d) and (e) of this title (relating to General Requirements) must be followed before the system receives a notice of approval.(2) If the executive director determines that the systems do not meet the requirements of this section, the owner may be required to submit an application for either a permit under Chapters 205 or 305 of this title (relating to General Permits for Waste Discharges or Consolidated Permits, respectively).(e) In order to receive a notice of approval, all systems on the property, including the existing systems, must meet the requirements of this chapter.(f) The owner shall submit a report of the actual flow data to both the permitting authority and the executive director once a year in the month following the anniversary month of the receipt of the notice of approval. The reported flows shall be based on sewage flows measured by a totalizing meter installed at each individual system, water usage for the facilities served by the individual systems, or by other means approved by the executive director. The flows shall be recorded in a table by calendar month. The table shall give a continuous average of flows.(g) If, as a result of the submittal of the reports required in subsection (f) of this section, the executive director and the authorized agent determine that the systems no longer meet the requirements of this section, the owner shall either bring the systems into compliance with this section or submit an application for a permit under Chapter 205 or Chapter 305 of this title.</content><note type="source"><p>Source Note: The provisions of this §285.8 adopted to be effective July 31, 2002, 27 TexReg 6714; amended to be effective September 11, 2008, 33 TexReg 7536.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c285/scB"><num value="B">SUBCHAPTER B</num><heading>LOCAL ADMINISTRATION OF THE OSSF PROGRAM</heading><section identifier="/us/state/tx/tac/t30/p1/c285/scB/s285.10"><num value="285.10">§285.10</num><heading>Delegation to Authorized Agents</heading><content>(a) Responsibility of the authorized agent. An authorized agent is responsible for the proper implementation of this chapter in its area of jurisdiction.(1) An authorized agent shall administer its on-site sewage facility (OSSF) program according to the OSSF order, ordinance, or resolution approved by the executive director.(2) An authorized agent shall enforce this chapter and Texas Health and Safety Code (THSC), Chapter 366.(b) Requirements and procedures.(1) Upon request from a local governmental entity, the executive director shall forward a description of the delegation process and provide a copy of the executive director's model order, ordinance, or resolution.(2) If the OSSF program is delegated to a municipality, the jurisdiction of the authorized agent will be limited to the municipality's incorporated area.(3) To receive delegation as an authorized agent, a local governmental entity shall draft an order, ordinance, or resolution that meets the requirements of this chapter and THSC, §366.032. The local governmental entity shall use the model order, ordinance, or resolution as a guide for developing its order, ordinance, or resolution.(4) If the local governmental entity proposes more stringent standards than those in this chapter, the local governmental entity shall submit the proposed order, ordinance, or resolution to the executive director for review and comment before publishing notice.(A) Each more stringent requirement shall be justified based on greater public health and safety protection. The written justification shall be submitted to the executive director with the draft order, ordinance, or resolution.(B) The executive director shall review the draft order, ordinance, or resolution and provide written comments to the local governmental entity within 30 days of receipt.(C) If the local governmental entity's draft order, ordinance, or resolution meets the requirements of this chapter, the executive director will notify the local governmental entity in writing to continue the process outlined in this subsection.(D) If the local governmental entity's draft order, ordinance, or resolution does not meet the requirements of this chapter, the executive director will not continue the review process until all requirements have been met. The executive director will notify the local governmental entity in writing of all deficiencies.(5) If the local governmental entity proposes using the model order, ordinance, or resolution without more stringent standards, or if the executive director has approved the draft order, ordinance, or resolution with more stringent standards, the local governmental entity shall hold a public meeting to discuss the proposed order, ordinance, or resolution.(A) The local governmental entity shall publish notice of a public meeting that will be held to discuss the adoption of the proposed order, ordinance, or resolution. The notice must be published in a regularly published newspaper of general circulation in the entity's area of jurisdiction.(B) The public notice shall include the time, date, and location of the public meeting.(C) The public notice shall be published at least 72 hours before the public meeting, but not more than 30 days before the meeting.(6) The local governmental entity shall provide the executive director with the following:(A) a copy of the public notice as it appeared in the newspaper;(B) a publisher's affidavit from the newspaper in which the public notice was published;(C) a certified copy of the minutes of the meeting when the order, ordinance, or resolution was adopted; and(D) a certified copy of the order, ordinance, or resolution that was passed by the entity.(7) Upon receiving the information listed in paragraph (6) of this subsection, the executive director shall have 30 days to review the materials to ensure the local governmental entity has complied with the requirements of this chapter and THSC, Chapter 366.(A) After the review has been completed and all the requirements have been met, the executive director shall sign the order approving delegation and notify the local governmental entity by mail.(B) If the executive director determines during the review that the materials do not comply with the requirements of this section, the executive director will issue a letter to the local governmental entity detailing the deficiencies.(8) The local governmental entity's order, ordinance, or resolution shall be effective on the date the order approving delegation is signed by the executive director.(9) Any appeal of the executive director's decision shall be done according to §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).(c) Amendments to existing orders, ordinances, or resolutions.(1) To ensure that the authorized agent's program is consistent with current commission rules, the executive director may require periodic amendments of OSSF orders, ordinances, or resolutions.(2) An authorized agent may initiate an amendment. The authorized agent shall use the procedures in subsection (b) of this section.(3) The amendment shall be effective on the date the amendment is approved by the executive director.(d) Relinquishment of delegated authority by authorized agent.(1) When an authorized agent decides to relinquish authority to regulate OSSFs, the following shall occur:(A) the authorized agent shall inform the executive director by certified mail at least 30 days before publishing notice of intent to relinquish authority;(B) the authorized agent shall hold a public meeting to discuss its intent to relinquish the delegated authority;(i) the authorized agent shall publish notice of a public meeting that will be held to discuss its intent to relinquish the delegated authority. The notice must be published in a regularly published newspaper of general circulation in the entity's area of jurisdiction;(ii) the public notice shall include the time, date, and location of the public meeting;(iii) the public notice shall be published at least 72 hours before the public meeting, but not more than 30 days before the meeting;(C) the authorized agent must, either at the meeting discussed in subparagraph (B) of this paragraph, or at another meeting held within 30 days after the first meeting, formally decide whether to repeal the order, ordinance, or resolution; and(D) the authorized agent shall forward to the executive director copies of the public notice, a publisher's affidavit of public notice, and a certified copy of the minutes of the meeting in which the authorized agent formally acted.(2) Before the executive director will process a relinquishment order, the authorized agent and the executive director shall determine the exact date the authorized agent shall surrender its delegated authority. Until that date, the authorized agent will retain all authority and responsibility for the delegated program.(3) The executive director shall process the request for relinquishment within 30 days of receipt of the copies of documentation required in paragraph (1)(D) of this subsection. After processing the request for relinquishment, the executive director will issue an order and shall assume responsibility for the OSSF program.(4) On or after the date determined by the authorized agent and the executive director, the authorized agent shall repeal its order, ordinance, or resolution. Within ten days after the authorized agent repeals its order, ordinance, or resolution, the authorized agent shall forward a certified copy of the repeal to the executive director.(5) Authorized agents who relinquish their OSSF authority may be subject to fees according to §285.14 of this title (relating to Charge-back Fee) after the date that delegation has been relinquished, unless the authorized agent has relinquished its OSSF authority due to a material change in this chapter.</content><note type="source"><p>Source Note: The provisions of this §285.10 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective August 29, 2002, 27 TexReg 7917; amended to be effective May 14, 2020, 45 TexReg 3097.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scB/s285.11"><num value="285.11">§285.11</num><heading>General Requirements</heading><content>(a) General Administrative Requirements for Authorized Agents. On-site sewage facility (OSSF) permitting, construction, and inspection requirements are in §285.3 of this title (relating to General Requirements).(b) Fees. The OSSF permit and inspection fees will be set by the authorized agent. Additionally, a fee of $10 shall be assessed for each OSSF permit for the commission as required in the Texas Health and Safety Code, Chapter 367.(c) Complaints. The authorized agent shall investigate all complaints within 30 days after receipt. After completing the investigation, the authorized agent shall take appropriate and timely action according to §285.71 of this title (relating to Authorized Agent Enforcement of OSSFs).(d) Appeals. Appeals of an authorized agent's decision will be made through the appeal procedures stated in the authorized agent's order, ordinance, or resolution.(e) Authorized Agents Reporting Requirements.(1) The authorized agent shall notify the executive director, in writing, of any change of the designated representative within 30 days after the date of the change.(2) Each authorized agent shall provide to the executive director an OSSF monthly activity report on the form provided by the executive director, within ten days after the end of the month.</content><note type="source"><p>Source Note: The provisions of this §285.11 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective August 16, 2012, 37 TexReg 6055.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scB/s285.12"><num value="285.12">§285.12</num><heading>Review of Locally Administered Programs</heading><content>(a) Not more than once a year, the executive director shall review an authorized agent's program for compliance with requirements established by Texas Health and Safety Code, Chapter 366; this chapter; and the order, ordinance, or resolution adopted by the authorized agent.(1) During the review the executive director shall:(A) evaluate the authorized agent's:(i) administrative processes;(ii) planning material review processes;(iii) permitting processes;(iv) inspection processes; and(v) complaint resolution processes;(B) conduct an interview with the authorized agent's representative, to present the results of the executive director's review.(2) After the executive director completes the review, the executive director shall:(A) prepare a written report of the executive director's findings; and(B) forward a copy of the report to the authorized agent by certified mail within 60 days after completing the review.(b) If as a result of the executive director's review the executive director determines that the authorized agent's program is deficient, the authorized agent must respond in writing to the executive director within 45 days after the date of the executive director's report with a plan to address all deficiencies noted during the review. The executive director shall offer assistance to the authorized agent including providing training to the authorized agent's designated representative. Additionally, if the authorized agent's program is:(1) deficient because it does not consistently provide required documentation of the permitting, inspection, and compliance investigation processes the executive director shall review the authorized agent's response and determine if the response is adequate. If the response is adequate, the executive director shall not take further action. If the authorized agent's response is not adequate, or the authorized agent fails to respond, the executive director shall continue to work with the authorized agent until the deficiencies are resolved by making contact with the authorized agent through additional letters or by telephone;(2) deficient because it does not consistently enforce the permitting, planning, construction, operation, and maintenance of on-site sewage facility systems, the executive director shall review the authorized agent's response and determine if adequate measures will be taken to correct the deficiencies. If the response is adequate, the executive director will schedule another review of the authorized agent's program one year after the first review to verify that the deficiencies have been corrected. If the authorized agent's response is not adequate, the authorized agent fails to respond, or the executive director's next annual review determines that the authorized agent's program has the same deficiencies as noted during the previous review, the executive director will begin the process of revoking the authorized agent's delegated authority under §285.13 of this title (relating to Revocation of Authorized Agent Delegation); or(3) endangering human health or safety, the executive director will begin the process of revoking the authorized agent's delegated authority under §285.13 of this title.</content><note type="source"><p>Source Note: The provisions of this §285.12 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective August 29, 2002, 27 TexReg 7917.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scB/s285.13"><num value="285.13">§285.13</num><heading>Revocation of Authorized Agent Delegation</heading><content>(a) An authorized agent's on-site sewage facility (OSSF) order, ordinance, or resolution may be revoked by order of the commission, after notice and an opportunity for a hearing, for the authorized agent's failure to implement, administer, or enforce Texas Health and Safety Code, this chapter, or its order, ordinance, or resolution.(b) If the executive director determines that cause exists for revocation, the executive director shall:(1) meet with the authorized agent's county judge, mayor, general manager, or chairman of the board, or other authorized individual, to discuss the report of the executive director's findings, the authorized agent's response to the findings, and the possible revocation; and(2) prepare a letter documenting the meeting in paragraph (1) of this subsection and forward it to the authorized agent within ten days after the meeting.(c) The authorized agent shall respond to the executive director's letter in subsection (b)(2) of this section in writing within 90 days after the date of the executive director's letter.(d) If the executive director determines from the authorized agent's response that sufficient action will be taken to consistently enforce the OSSF program, the executive director will:(1) respond to the authorized agent that the revocation process will be discontinued; and(2) schedule another review of the authorized agent's program one year after the first review to verify that the authorized agent is consistently enforcing the OSSF program.(e) If the executive director determines from the authorized agent's response that insufficient action will be taken, the executive director will:(1) file a petition with the commission according to Chapter 70 of this title (relating to Enforcement) seeking revocation;(2) initiate the hearing process with SOAH according to Chapter 80 of this title (relating to Contested Case Hearings);(3) publish notice of a public hearing that will be held to review the commission's possible revocation of the delegated authority. The notice must be published in a regularly published newspaper of general circulation in the local governmental entity's area of jurisdiction and shall:(A) include the time, date, and location of the public hearing; and(B) be published at least 20 days before the public hearing; and(4) hold a public hearing to review possible revocation of the delegated authority.(f) An authorized agent may consent to the revocation of its OSSF delegation in writing before the public hearing. If the authorized agent consents to the revocation, the commission may revoke the authorized agent's delegated authority without a public hearing.(g) After an opportunity for a hearing, the commission may:(1) issue an order revoking the authorized agent's delegation, which may include a charge-back fee;(2) issue an order requiring the authorized agent to take certain action or actions in order to retain delegation; or(3) take no action.(h) If the authorized agent's delegation is revoked, the executive director shall assume responsibility for the OSSF program in the former authorized agent's jurisdiction. The executive director shall implement the program on the date of the revocation.(i) An authorized agent that has had its OSSF authority revoked may be subject to charge-back fees according to §285.14 of this title (relating to Charge-back Fee).</content><note type="source"><p>Source Note: The provisions of this §285.13 adopted to be effective August 29, 2002, 27 TexReg 7917; amended to be effective September 11, 2008, 33 TexReg 7536.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scB/s285.14"><num value="285.14">§285.14</num><heading>Charge-back Fee</heading><content>(a) Under Texas Health and Safety Code, §366.059, the commission may assess a reasonable and appropriate charge-back fee, not to exceed $500 per permit, to local governmental entities that either have repealed an on-site sewage facility (OSSF) order, ordinance, or resolution, or have had their delegation revoked by the commission according to §285.13 of this title (relating to Revocation of Authorized Agent Delegation). The charge-back fee will be assessed for each OSSF permit issued within that local governmental entity's area of jurisdiction. The amount of the charge-back fee will be based on the executive director's actual cost of issuing an OSSF permit in that jurisdiction. The executive director's actual cost will be based on the type and number of OSSFs typically installed and inspected in the local governmental entity's jurisdiction, along with expected travel expenses for the executive director.(1) If a local governmental entity repeals its OSSF order, ordinance, or resolution or the commission revokes a local governmental entity's delegation and the local governmental entity agrees to the amount of the charge-back fee, the executive director will recommend the commission approve the charge-back fee. In order to have legal effect as an order of the commission, the charge-back fee must be approved and ordered by the commission. The commission order must include:(A) the type of OSSFs typically installed and inspected in the local governmental entity's jurisdiction;(B) the number of OSSFs installed in the local governmental entity's jurisdiction over the preceding five years;(C) the distance the county courthouse or city hall is from the nearest agency regional office;(D) the current mileage rate set by the Comptroller of the State of Texas; and(E) the amount of the charge-back fee.(2) If a local governmental entity repeals its OSSF order, ordinance, or resolution or the commission revokes a local governmental entity's delegation and the local governmental entity does not agree to the amount of the charge-back fee, the commission will refer the matter to SOAH for a contested case hearing to determine the charge-back fee, according to Chapter 80 of this title (relating to Contested Case Hearings).(b) The executive director will bill the local governmental entities for charge-back fees no more frequently than quarterly and no less than annually. Payment of charge-back fees is due within 30 days from the invoice date. Late payments are subject to penalties and interest according to Chapter 12 of this title (relating to Payment of Fees).</content><note type="source"><p>Source Note: The provisions of this §285.14 adopted to be effective August 29, 2002, 27 TexReg 7917.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c285/scC"><num value="C">SUBCHAPTER C</num><heading>COMMISSION ADMINISTRATION OF THE OSSF PROGRAM IN AREAS WHERE NO AUTHORIZED AGENT EXISTS</heading><section identifier="/us/state/tx/tac/t30/p1/c285/scC/s285.20"><num value="285.20">§285.20</num><heading>General Requirements</heading><content>(a) General Administrative Requirements. OSSF permitting, construction, and inspection requirements are in §285.3 of this title (relating to General Requirements).(b) Complaints. The executive director shall investigate all complaints within 30 days after receipt. After completing the investigation, the executive director shall take appropriate and timely action according to §285.70 of this title (relating to Duties of Owners With Malfunctioning OSSFs).(c) Appeals. All appeals under this subchapter shall be sent in writing to the director of the appropriate regional office.</content><note type="source"><p>Source Note: The provisions of this §285.20 adopted to be effective June 13, 2001, 26 TexReg 4115.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scC/s285.21"><num value="285.21">§285.21</num><heading>Fees</heading><content>(a) The application fee for an on-site sewage facility (OSSF) permit is:(1) $200 for an OSSF serving a single family dwelling; or(2) $400 for all other types of OSSFs.(b) A fee of $10 shall also be collected for each OSSF permit for the commission as required by the Texas Health and Safety Code, Chapter 367.(c) The fees are payable when the owner, or owner's agent, applies to the executive director for an OSSF permit. The fee shall be submitted to the appropriate regional office and shall be paid by a money order or check. Payments shall be made payable to the Texas Commission on Environmental Quality.(d) The re-inspection fee shall be equal to one-half of the permit fee that was in effect at the time the original application was submitted to the regional office.(e) Refunds of the application fee shall not be granted.</content><note type="source"><p>Source Note: The provisions of this §285.21 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective September 11, 2008, 33 TexReg 7536; amended to be effective August 16, 2012, 37 TexReg 6055.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c285/scD"><num value="D">SUBCHAPTER D</num><heading>PLANNING, CONSTRUCTION, AND INSTALLATION STANDARDS FOR OSSFS</heading><section identifier="/us/state/tx/tac/t30/p1/c285/scD/s285.30"><num value="285.30">§285.30</num><heading>Site Evaluation</heading><content>(a) General Requirement. To document the soil and site conditions, a complete site evaluation shall be performed by either a site evaluator or a professional engineer on every tract of land where an OSSF will be installed. A report prepared by either the site evaluator or the professional engineer providing the site evaluation criteria in subsection (b) of this section shall be submitted with the planning materials.(b) Site evaluation criteria. All aspects of the site evaluation shall be performed by either a site evaluator or a professional engineer according to this section. The information obtained during the site evaluation shall be used to determine the type and size of the OSSF.(1) Soil analysis. The site evaluator or the professional engineer shall either drill two soil borings or excavate two backhoe pits at opposite ends of the proposed disposal area to determine the characteristics of the soil. In areas of high soil variability, the permitting authority may require additional borings or backhoe pits. The borings or backhoe pits shall either be excavated to a depth of two feet below the adopted excavation of the disposal area, or to a restrictive horizon, whichever is less. The location of all borings or backhoe pits shall be clearly indicated on the site drawing required in §285.5(a) of this title (relating to Submittal Requirements for Planning Materials).(A) Soil texture analysis. A general texture analysis shall be performed to identify the classification of the soil. The different soils in each class are provided in §285.91(6) of this title (relating to Tables).(i) Soil Class Ia. This class includes sandy textured soils that contain more than 30% gravel.(ii) Soil Class Ib. This class includes sand and loamy sand soils that contain less than or equal to 30% gravel.(iii) Soil Class II. This class includes sandy loam and loam soils.(iv) Soil Class III. This class includes silt, silt loam, silty clay loam, clay loam, sandy clay loam, and sandy clay soils.(v) Soil Class IV. This class includes silty clay and clay soils.(B) Gravel analysis. Class II or Class III soils containing gravel shall be further evaluated by either a site evaluator or a professional engineer by using a sieve analysis to determine the percentage of gravel by volume and the size of the gravel as indicated in §285.91(5) of this title.(C) Restrictive horizons analysis. The soils within the borings or backhoe pits shall be analyzed by either a site evaluator or a professional engineer to determine if a restrictive horizon exists. Clay subsoils, rock, and plugged laminar soils are considered restrictive horizons. Restrictive horizons are recognized by an abrupt change in texture from a sandy or loamy surface horizon to:(i) a clayey subsoil which an auger will not penetrate; or(ii) rock-like material which an auger will not penetrate.(2) Groundwater evaluation. The soil profile shall be examined by either a site evaluator or a professional engineer to determine if there are indications of groundwater within 24 inches of the bottom of the excavation.(A) If the designated representative and the site evaluator or the professional engineer disagree on the presence of groundwater, the designated representative shall verify groundwater information using the Natural Resources Conservation Service (NRCS) soil survey for that county, if it is available.(B) If the designated representative or the site evaluator or the professional engineer disagree with the NRCS soil survey, or if an NRCS soil survey does not exist for that county, the owner has the option to retain a certified professional soil scientist to evaluate the presence of groundwater and present that information to the designated representative for a final decision.(3) Surface drainage analysis.(A) Topography. The slope of each tract of land where an OSSF will be installed, areas of poor drainage such as depressions, and areas of complex slope patterns where slopes are dissected by gullies and ravines shall be determined. All slope patterns shall be clearly indicated on the site drawing, as required in §285.5(a) of this title.(B) Flood hazard. The 100-year floodplain for each tract of land where an OSSF will be installed shall be determined from either Federal Emergency Management Agency (FEMA) maps or from a flood study prepared by a professional engineer when FEMA maps are not available. The 100-year flood boundaries shall be clearly indicated on the site drawing, as required in §285.5(a) of this title. The drawing(s) shall also indicate if the 100-year floodplain does not exist within the tract.(4) Separation requirements. All features in the area where the OSSF is to be installed that could be contaminated by the OSSF or could prevent the proper operation of the system shall be identified during the site evaluation. The separation requirements are in §285.91(10) of this title. All features and separation distances shall be clearly indicated on the site drawing, as required in §285.5(a) of this title.</content><note type="source"><p>Source Note: The provisions of this §285.30 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective December 17, 2001, 26 TexReg 10363; amended to be effective September 11, 2008, 33 TexReg 7536.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scD/s285.31"><num value="285.31">§285.31</num><heading>Selection Criteria for Treatment and Disposal Systems</heading><content>(a) General Requirement. The type and size of an OSSF shall be determined on the basis of the soil and site information developed according to §285.30 of this title (relating to Site Evaluation).(b) Suitability. A standard subsurface absorption system may be used if all the soil and site criteria are determined to be suitable under §285.91(5) of this title (relating to Tables). If one or more of the soil and site criteria categories are determined to be unsuitable, a standard subsurface absorption system cannot be used except as noted in §285.91(5) of this title. If it is determined that a standard subsurface absorption system cannot be used, either a proprietary or a non-standard system may be used, provided all soil and site criteria for that system can be met as required in §285.91(13) of this title.(c) Surface drainage criteria.(1) Topography. Uniform slopes under 30% are suitable for standard subsurface absorption systems. If the slope is less than 2%, steps shall be taken to ensure there is adequate surface drainage over any subsurface disposal field. The excavation for a standard subsurface absorption system shall be parallel to the contour of the ground.(2) Flood hazard. Any potential OSSF site within a 100-year floodplain is subject to special planning requirements. The OSSF shall be located so that a flood will not damage the OSSF during a flood event, resulting in contamination of the environment. Planning materials shall indicate how tank flotation is eliminated. Additionally, if the site is within the regulated floodway, a professional engineer shall demonstrate that:(A) the system shall not increase the height of the flood;(B) all components, with the exception of risers, chlorinators, cleanouts, sprinklers, and inspection ports, shall be completely buried without adding fill; and(C) non-buried components (e.g. alarms, junction boxes, and compressors) shall be elevated above the 100-year flood elevation.(d) Separation requirements. OSSFs shall be separated from features, in the area where the OSSF is to be installed, that could be contaminated by the OSSF or could prevent the proper operation of the system. The separation requirements are in §285.91(10) of this title.</content><note type="source"><p>Source Note: The provisions of this §285.31 adopted to be effective June 13, 2001, 26 TexReg 4115.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scD/s285.32"><num value="285.32">§285.32</num><heading>Criteria for Sewage Treatment Systems</heading><content>(a) Pipe from building to treatment system.(1) The pipe from the sewer stub out to the treatment system shall be constructed of cast iron, ductile iron, polyvinyl chloride (PVC) Schedule 40, standard dimension ratio (SDR) 26 or other material approved by the executive director.(2) The pipe shall be watertight.(3) The slope of the pipe shall be no less than 1/8 inch fall per foot of pipe.(4) The sewer stub out should be as shallow as possible to facilitate gravity flow.(5) A two-way cleanout plug must be provided between the sewer stub out and the treatment tank. Only sanitary type fittings constructed of PVC Schedule 40 or SDR 26 shall be used on this section of the sewer. An additional cleanout plug shall be provided every 100 feet on long runs of pipe and within five feet of 90 degree bends.(6) Additional cleanout plugs shall be of the single sanitary type.(7) The pipe shall have a minimum inside diameter of three inches.(8) Pipe that crosses drainage easements shall be sleeved with American Society for Testing and Materials (ASTM) Schedule 40 pipe; the pipes shall be buried at least one foot below the surface, or buried less than one foot and encased in concrete; the outside pipe shall have locater tape attached to the pipe; and markers shall be placed at the easement boundaries to indicate the location of the pipe crossing. Crossings shall be designed and constructed in a manner that protects the pipe and the drainage way from erosion.(b) Standard treatment systems.(1) Septic tanks. A septic tank shall meet the following requirements.(A) Tank volume. The liquid volume of a septic tank, measured from the bottom of the outlet, shall not be less than established in §285.91(2) of this title (relating to Tables). Additionally, the liquid depth of the tank shall not be less than 30 inches.(B) Inlet and outlet devices. The flowline of the tank's inlet device in the first compartment of a two-compartment tank, or in the first tank in a series of tanks, shall be at least three inches higher than the flowline of the outlet device. For a configuration of the tank and inlet and outlet devices, see §285.90(6) and (7) of this title (relating to Figures). The inlet devices shall be "T" branch fittings, constructed baffles or other structures or fittings approved by the executive director. The outlet devices shall use a "T" unless an executive director approved fitting is installed on the outlet. All inlet and outlet devices shall be installed water tight to the septic tank walls and shall be a minimum of three inches in diameter.(C) Baffles and series tanks. All septic tanks shall be divided into two or three compartments by the use of baffles or by connecting two or more tanks in a series.(i) Baffled tanks. In a baffled tank, the baffle shall be located so that one half to two thirds of the total tank volume is located in the first compartment. Baffles shall be constructed the full width and height of the tank with a gap between the top of the baffle and the tank top. The baffle shall have an opening located below the liquid level of the tank at a depth between 25% and 50% of the liquid level. The opening may be a slot or hole. If a "T" is fitted to the slot or hole, the inlet to the fitting shall be at the depth stated in this paragraph. See §285.90(6) of this title for details. Any metal structures, fittings, or fastenings shall be stainless steel.(ii) Series tanks. Two or more tanks shall be arranged in a series to attain the required liquid volume. The first tank in a two-tank system shall contain at least one half to two thirds the required volume. The first tank in a three-tank system shall contain at least one-third of the total required volume, but no less than 500 gallons. The first tank in a four or more tank system shall contain no less than 500 gallons, and the last tank in a four or more tank system shall contain no more than one third of the total required volume. Interconnecting inlet and outlet devices may be installed at the same elevation for multiple tank installations.(D) Inspection or cleanout ports. All septic tanks shall have inspection or cleanout ports located on the tank top over the inlet and outlet devices. Each inspection or cleanout port shall be offset to allow for pumping of the tank. The ports may be configured in any manner as long as the smallest dimension of the opening is at least 12 inches, and is large enough to provide for maintenance and for equipment removal. Septic tanks buried more than 12 inches below the ground surface shall have risers over the port openings. For all OSSF"s permitted on or after September 1, 2023, the risers shall extend from the tank surface to a minimum of two inches above grade. The risers shall be sealed to the tank. The risers shall have inside diameters which are equal to or larger than the inspection or cleanout ports. The risers shall be fitted with removable watertight caps and prevent unauthorized access.(E) Septic tank design and construction materials. The septic tank shall be of sturdy, water-tight construction. The tank shall be designed and constructed so that all joints, seams, component parts, and fittings prevent groundwater from entering the tank, and prevent wastewater from exiting the tank, except through designed inlet and outlet openings. Materials used shall be steel-reinforced poured-in-place concrete, steel-reinforced precast concrete, fiberglass, reinforced plastic polyethylene, or other materials approved by the executive director. Metal septic tanks are prohibited. The septic tank shall be structurally designed to resist buckling from internal hydraulic loading and exterior loading caused by earth fill and additional surface loads. Tanks exhibiting deflections, leaks, or structural defects shall not be used. Sweating at construction joints is acceptable on concrete tanks.(i) Precast concrete tanks. In addition to the general requirements in this subparagraph, precast concrete tanks shall conform to requirements in the Materials and Manufacture Section and the Structural Design Requirements Section of ASTM Designation: C 1227, Standard Specification for Precast Concrete Septic Tanks (2000) or under any other standards approved by the executive director. A professional engineer shall verify in writing that the manufacturer is in compliance with ASTM Standard C 1227. This verification shall be submitted to the permitting authority from the tank manufacturer. If this verification has not been previously submitted or accepted by the permitting authority, a new verification shall be completed within 30 days of the effective date of this section.(ii) Fiberglass and plastic polyethylene tank specifications. (I) The tank shall be fabricated to perform its intended function when installed. The tank shall not be adversely affected by normal vibration, shock, climate conditions, nor typical household chemicals. The tank shall be free of rough or sharp edges that would interfere with installation or service of the tank.(II) Full or empty tanks shall not collapse or rupture when subjected to earth and hydrostatic pressures.(iii) Poured-in-place concrete tanks. Concrete tanks shall be structurally sound and water-tight. The concrete tank shall be designed by a professional engineer.(iv) Tank manufacturer specifications. All precast or prefabricated tanks shall be clearly and permanently marked, tagged, or stamped with the manufacturer's name, address, and tank capacity. The identification shall be near the level of the outlet and be clearly visible. Additionally, the direction of flow into and out of the tank shall be indicated by arrows or other identification, and shall be clearly marked at the inlet and outlet.(F) Installation of tanks. For gravity disposal systems, septic tanks must be installed with at least a 12 inch drop in elevation from the bottom of the outlet pipe to the bottom of the disposal area. A minimum of four inches of sand, sandy loam, clay loam, or pea gravel, free of rock larger than 1/2 inch in diameter, shall be placed under and around all tanks, except poured-in-place concrete tanks. Unless otherwise approved by the permitting authority, tank excavations shall be left open until they have been inspected by the permitting authority. Tank excavations must be backfilled with soil or pea gravel that is free of rock larger than 1/2 inch in diameter. Class IV soils and gravel larger than one-half inch in diameter are not acceptable for use as backfill material. If the top of a septic tank extends above the ground surface, soil may be mounded over the tank to maintain slope to the drainfield.(G) Pretreatment (Trash) tanks. If an aerobic treatment unit does not prevent plastic and other non-digestible sewage from interfering with aeration lines and diffusers, the executive director may require the use of a pretreatment tank. All pretreatment tanks shall meet all applicable structural and fitting requirements of this section.(H) Leak Testing. At the discretion of the permitting authority, leak testing using water filled to the inside level of the tank lid or to the top of the tank riser(s) may be required.(2) Intermittent sand filters. A typical layout and cross-section of an intermittent sand filter is presented in §285.90(8) of this title. Requirements for intermittent sand filters are as follows. (A) Sand media specifications. Sand filter media must meet ASTM C-33 specifications as outlined in §285.91(11) of this title.(B) Loading rate. The loading rate shall not exceed 1.2 gallons per day per square foot.(C) Surface area. The minimum surface area shall be calculated using the formula: Q/1.2=Surface Area (Square Feet), where Q is the wastewater flow in gallons per day.(D) Thickness of sand media. There shall be a minimum of 24 inches of sand media.(E) Filter bed containment. The filter bed containment shall be an impervious lined pit or tank. Liners shall meet the specifications detailed in §285.33(b)(2)(A) of this title (relating to Criteria for Effluent Disposal Systems).(F) Underdrains. For gravity discharge of effluent to a drainfield, there shall be a three inch layer of pea gravel over a six inch layer of 0.75 inch gravel, that contains the underdrain collection pipe. When pumpwells are to be used to pump the effluent from the underdrain to the drainfield, they must be constructed of concrete or plastic sewer pipe. The pumpwell must contain a sufficient number of holes so that effluent can flow from the gravel void space as rapidly as the effluent is pumped out of the pumpwell to the drainfield. Refer to §285.90(9) of this title.(c) Proprietary treatment systems. This subsection does not apply to proprietary septic tanks described in subsection (b)(1) of this section.(1) Tank sizing. Proprietary treatment systems that serve single family residences, combined flows from single family residences, or multi-unit residential developments shall be designed using Table II in §285.91(2) of this title unless there is an equalization tank preceding the aerobic treatment unit. If there is an equalization tank preceding the aerobic treatment unit, the equalization tank shall meet the requirements set forth in §285.34(b)(4) of this title (relating to Other Requirements) and the aerobic treatment units can be sized using the wastewater flows in Table III in §285.91(3) of this title. Proprietary Treatment systems for non-residential facilities shall be sized using the wastewater flows in Table III in §285.91(3) of this title. Leak testing shall be performed in accordance with subsection (b)(1)(H) of this section.(2) Installation. Proprietary treatment systems shall be installed according to this subchapter. If the manufacturer has installation specifications that are more stringent than given in this subchapter, the manufacturer shall submit these specifications to the executive director for review. If approved by the executive director, the treatment systems may be installed according to these more stringent specifications. Any subsequent changes to these manufacturer's installation specifications must be approved by the executive director before installation. Inspection, cleanout ports, or maintenance ports shall have risers installed according to the riser installation provisions in subsection (b)(1)(D) of this section. Tank excavations shall be backfilled according to the backfill provisions in subsection (b)(1)(F) of this section. At the discretion of the permitting authority, leak testing using water filled to the inside level of the tank lid or to the top of the riser(s) may be required.(3) System maintenance. Ongoing maintenance contracts are required for all proprietary treatment systems except those systems maintained by homeowners under the provisions of §285.7(d)(4) of this title (relating to Maintenance Requirements). The maintenance contract shall satisfy §285.7(d) of this title.(4) Electrical wiring. Electrical wiring for proprietary systems shall be according to §285.34(c) of this title.(5) Approval of proprietary treatment systems. Proprietary treatment systems must be approved by the executive director prior to their installation and use. Approval of proprietary treatment systems shall follow the procedures found in this section. After the effective date of these rules, only systems tested according to subparagraph (A) or (B) of this paragraph will be placed on the list of approved systems. The list may be obtained from the executive director. All systems on the list of approved systems on the effective date of these rules shall continue to be listed subject to the retesting requirements in paragraph (6) of this subsection. In addition, all proprietary treatment systems undergoing testing under this paragraph on the effective date of these rules shall be considered for inclusion on the list of approved systems.(A) Treatment systems that have been tested by and are currently listed by NSF International as Class I systems under NSF Standard 40 (2005) or have been tested and certified as Class I systems according to NSF Standard 40 (2005), by an American National Standard Institute (ANSI) accredited testing institution, or under any other standards approved by the executive director, shall be considered for approval by the executive director. All systems approved by the executive director on the effective date of these rules shall continue to be listed on the list of approved systems, subject to retesting under the requirements of NSF Standard 40 (2005), and Certification Policies for Wastewater Treatment Devices (1997) or under any standards approved by the executive director. The manufacturers of proprietary treatment systems and the accredited certification institution must comply with all the provisions of NSF Standard 40 (2005), and Certification Policies for Wastewater Treatment Devices (1997) or under any standards approved by the executive director.(i) Proprietary units under this section have been approved to treat flows equal to or less than their rated capacity and with an influent wastewater strength ranging from a 30-day average Carbonaceous Biochemical Oxygen Demand (CBOD) concentration between 100 milligrams per liter (mg/l) and 300 mg/l and a 30-day average TSS concentration between 100 mg/l and 350 mg/l.(ii) Proprietary units may be used as components in an overall treatment system treating influent stronger than the ranges listed in this section. However, the overall treatment system will be considered a non-standard treatment system and shall meet the requirements set forth in subsection (d) of this section.(B) Treatment systems that will not be accepted for testing because of system size or type by NSF International, or ANSI accredited third party testing institutions, and are not approved systems at the time of the effective date of these rules, may only be approved in the following manner.(i) The proprietary systems shall be tested by an independent third party for two years and all the supporting data from the test shall be submitted to the executive director for review and approval, or denial before the system is marketed for sale in the state.(ii) The independent third party shall obtain a temporary authorization from the executive director before testing. The temporary authorization shall contain the following:(I) the number of systems to be tested (between 20 and 50);(II) the location of the test sites (the test sites must be typical of the sites where the system will be used if final authorization is granted);(III) provisions as to how the proprietary system will be installed and maintained;(IV) the testing protocol for collecting and analyzing samples from the system;(V) the equipment monitoring procedures, if applicable; and(VI) provisions for recording data and data retention necessary to evaluate the performance as well as the effect of the proprietary system on public health, groundwater, and surface waters.(iii) Permitting authorities may issue authorizations to construct upon receipt of the temporary authorization. The owner must be advised, in writing, that the system is temporarily approved for testing. If a system fails, regardless of the reason, it shall be replaced with a system that meets the requirements of this subchapter by the manufacturer at the manufacturer's expense. A system installed under this subparagraph is the responsibility of the manufacturer until the system has obtained final authorization by the executive director according to this subparagraph.(iv) Upon completion of the two-year test period, the executive director shall require the independent third party to submit a detailed report on the performance of the system. After evaluating the report, the executive director may issue conditional approval of the system, or may deny use of the system.(I) The conditional approval will authorize installations only in areas similar to the area in which the system was tested.(II) The conditional approval shall be for a specified performance and evaluation (monitoring) period, not to exceed an additional five years. The system must be monitored according to a plan approved by the executive director. Approval or disapproval of these systems will be based on their performance during the monitoring period. Failure of one or more of the installed systems may be cause for disapproval of the proprietary system. The owner must be advised, in writing, that the system is conditionally approved.(III) If the executive director denies use of the system after the two-year period, the executive director shall provide, in writing, the reasons for denying the use of the system. If a system fails, regardless of the reason, it shall be replaced with a system that meets the requirements of this subchapter by the manufacturer at the manufacturer's expense.(v) Upon successful completion of the monitoring period, the monitoring requirements may be lifted by the executive director, the notice of approval may be made permanent for the test systems and the systems will be deemed suitable for use in conditions similar to areas in which the systems were tested and monitored.(6) System reviews. The manufacturers of systems that are approved for listing under this section shall ensure that their systems are reviewed every seven years, or as often as deemed necessary by the executive director, starting from the date the system was originally added to the executive director's approved list. All reviews shall be completed before the end of the seven-year period. The manufacturer of any system that was approved by the executive director more than seven years before the effective date of these rules, will be given 365 days from the effective date of these rules to complete a review.(A) The review shall be performed by either an ANSI accredited institution according to the reevaluation requirements in NSF Standard 40 (2005), and Certification Policies for Wastewater Treatment Devices (1997), or under any standards approved by the executive director, or by an independent third party for those systems not tested under NSF Standard 40.(B) If the system being reviewed was not approved under the requirements of NSF Standard 40, the independent third party shall evaluate between 20 and 50 systems in the state that have been in operation for at least two years and are the same design as originally approved.(C) The review under this subsection shall include an evaluation of:(i) the short-term and long-term effectiveness of the system;(ii) the structural integrity of the system;(iii) the maintenance of the system;(iv) owner access to maintenance support;(v) any impacts that system failures may have had on the environment; and(vi) an evaluation of the effectiveness of the manufacturer's installer training program.(D) Any system that is not approved by the executive director as a result of the review will be removed from the list of approved systems. The manufacturer shall ensure that maintenance support remains available for the existing systems.(d) Non-standard treatment systems. All OSSFs not described or defined in subsections (b) and (c) of this section are non-standard treatment systems. These systems shall be designed by a professional engineer or a professional sanitarian in accordance with §285.91(9) of this title, and the planning materials shall be submitted to the permitting authority for review according to §285.5(b)(2) of this title (relating to Submittal Requirements for Planning Materials). Upon approval of the planning materials, an authorization to construct will be issued by the permitting authority.(1) Non-standard treatment systems include all forms of the activated sludge process, rotating biological contactors, recirculating sand filters, trickling type filters, submerged rock biological filters, and sand filters not described in subsection (b)(2) of this section.(2) The planning materials for non-standard treatment systems submitted for review will be evaluated using the criteria established in this chapter, or basic engineering and scientific principles. (3) Approval for a non-standard treatment system is limited to the specific system described in the planning materials. Approval is on a case-by-case basis only.(4) The need for ongoing maintenance contracts shall be determined by the permitting authority based on the review required by §285.5(b) of this title. If the permitting authority determines that a maintenance contract is required, the contract must meet the requirements in §285.7 of this title.(5) Electrical wiring for non-standard treatment systems shall be installed according to §285.34(c) of this title.(e) Effluent quality. The following effluent criteria shall be met by the treatment systems for those disposal systems listed in §285.33 of this title that require secondary treatment.Attached Graphic(f) Other Design Considerations.(1) Restaurant/food establishment sewage. When designing for restaurants, food service establishments, or similar activities, the minimum design strength value shall be 1,200 mg/l Biochemical Oxygen Demand (BOD) after a properly sized grease trap/interceptor. It is the responsibility of the designer to properly design a system which reduces the wastewater strength to 140 mg/l BOD prior to disposal unless secondary treatment levels are required.(2) Other high-strength sewage. For situations where sewage as defined in this chapter is expected to be a higher strength than residential sewage, it is the responsibility of the professional designer to justify sewage design strength estimations and properly design a system that reduces the wastewater strength to 140 mg/l BOD prior to disposal unless secondary treatment levels are required. Residential sewage is sewage that has a strength of less than 300 mg/l BOD.(3) Flow equalization. The designer should consider whether flow-equalization will be needed for the treatment system to function properly.</content><note type="source"><p>Source Note: The provisions of this §285.32 adopted to be effective February 5, 1997, 22 TexReg 1114; amended to be effective January 8, 1999, 24 TexReg 139; amended to be effective June 13, 2001, 26 TexReg 4115; amended to be effective September 11, 2008, 33 TexReg 7536; amended to be effective December 27, 2012, 37 TexReg 9947; amended to be effective July 6, 2023, 48 TexReg 3508.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scD/s285.33"><num value="285.33">§285.33</num><heading>Criteria for Effluent Disposal Systems</heading><content>(a) General requirements.(1) All disposal systems in this section shall have an approved treatment system as specified in §285.32(b) - (d) of this title (relating to Criteria for Sewage Treatment Systems).(2) All criteria in this section shall be met before the permitting authority issues an authorization to construct.(3) The pipe between all treatment tanks and the pipe from the final treatment tank to a gravity disposal system shall be a minimum of three inches in diameter and be American Society for Testing and Materials (ASTM) 3034, Standard dimension ratio (SDR) 35 polyvinyl chloride (PVC) pipe or a pipe with an equivalent or stronger pipe stiffness at a 5% deflection. The pipe must maintain a continuous fall to the disposal system.(4) The pipe from the final treatment tank to a gravity disposal system shall be a minimum of five feet in length.(5) Except for drip irrigation tubing, pipe under internal pressure within any part of an on-site sewage facility system shall meet the minimum requirements of ASTM Schedule 40.(6) Pipe that crosses drainage easements shall be sleeved with ASTM Schedule 40 pipe; the pipes shall be buried at least one foot below the surface, or buried less than one foot and encased in concrete; the outside pipe shall have locater tape attached to the pipe; and markers shall be placed at the easement boundaries to indicate the location of the pipe crossing. Crossings shall be designed and constructed in a manner that protects the pipe and the drainage way from erosion.(b) Standard disposal systems. Acceptable standard disposal methods shall consist of a drainfield to disperse the effluent either into adjacent soil (absorptive) or into the surrounding air through evapotranspiration (evaporation and transpiration).(1) Absorptive drainfield. An absorptive drainfield shall only be used in suitable soil. There shall be two feet of suitable soil from the bottom of the excavation to either a restrictive horizon or to groundwater.(A) Excavation. The excavation must be made in suitable soils as described in §285.31(b) of this title (relating to Selection Criteria for Treatment and Disposal Systems).(i) The excavation shall be at least 18 inches deep but shall not exceed a depth of either three feet or six inches below the soil freeze depth, whichever is deeper. Single excavations shall not exceed 150 feet.(ii) In areas of the state where annual precipitation is less than 26 inches per year (as identified in the Climatic Atlas of Texas, (1983) published by the Texas Department of Water Resources or other standards approved by the executive director), the maximum permissible excavation depth shall be five feet.(iii) Multiple excavations must be separated horizontally by at least three feet of undisturbed soil. The sidewalls and bottom of the excavation must be scarified as needed. When there are multiple excavations, it is recommended that the ends be looped together.(iv) The bottom of the excavation shall be not less than 18 inches in width.(v) The bottom of the excavation shall be level to within one inch over each 25 feet of excavation or within three inches over the entire excavation, whichever is less.(vi) If the borings or backhoe pits excavated during the site evaluation encounter a rock horizon and the site evaluation shows that there is both suitable soil from the bottom of the rock horizon to two feet below the bottom of the proposed excavation and no groundwater anywhere within two feet of the bottom of the proposed excavation, a standard subsurface disposal system may be used, providing the following are met.(I) The depth of the excavation shall comply with clause (i) of this subparagraph.(II) The rock horizon shall be at least six inches above the bottom of the excavation.(III) Surface runoff shall be prevented from flowing over the disposal area.(IV) Subsurface flow along the top of the rock horizon shall be prevented from flowing into the excavation.(V) The sidewall area will not be counted toward the required absorptive area.(VI) The formulas in clause (vii)(I) - (III) of this subparagraph shall be adjusted so that no credit is given for sidewall area.(VII) No single pipe drainfields on sloping ground as shown in §285.90(5) of this title (relating to Figures) or no systems using serial loading shall be used.(vii) The size of the excavation shall be calculated using data from §285.91(1) and (3) of this title (relating to Tables). The soil application rate is based on the most restrictive horizon along the media, or within two feet below the bottom of the excavation. The formula A = Q/Ra shall be used to determine the total absorptive area where:Attached Graphic(I) The absorptive area shall be calculated by adding the bottom area (L x W) of the excavation to the total absorptive area along the excavated perimeter 2(L+W), (in feet) multiplied by one foot.Attached Graphic(II) The length of the excavation may be determined as follows when the area and width are known. Attached Graphic(III) For excavations three feet wide or less, use the following formula, or §285.91(8) of this title to determine L.Attached Graphic(B) Media. The media shall consist of clean, washed and graded gravel, broken concrete, rock, crushed stone, chipped tires, or similar aggregate that is generally one uniform size and approved by the executive director. The size of the media must range from 0.75 - 2.0 inches as measured along its greatest dimension except as noted in clause (i) of this subparagraph.(i) If chipped tires are used:(I) a geotextile fabric heavier than specified in subparagraph (E) of this paragraph must be used; and(II) the size of the chipped tires must not exceed three inches as measured along their greatest dimension.(ii) Soft media such as oyster shell and soft limestone shall not be used.(C) Drainline. The drainline shall be constructed of perforated distribution pipe and fittings in compliance with any one of the following specifications:(i) three- or four-inch diameter PVC pipe with an SDR of 35 or stronger;(ii) four-inch diameter corrugated polyethylene, ASTM F405 in rigid ten foot joints;(iii) three- or four-inch diameter polyethylene smoothwall, ASTM F810;(iv) three- or four-inch diameter PVC ASTM D2729 pipe;(v) three- or four-inch diameter polyethylene ASTM F892 corrugated pipe with a smoothwall interior and fittings; or(vi) any other pipe approved by the executive director.(D) Drainline installation requirements. The drainline shall be placed in the media with at least six inches of media between the bottom of the excavation and the bottom of the drainline. The drainline shall be completely covered by the media and the drainline perforations shall be below the horizontal center line of the pipe. For typical drainfield configurations, see §285.90(5) of this title. For excavations greater than four feet in width, the maximum distance between parallel drainlines shall be four feet (center to center). Multiple drainlines shall be manifolded together with solid or perforated pipe. Additionally, the ends of the multiple drainlines opposite the manifolded end shall either be manifolded together with a solid line, looped together using a perforated pipe and media, or capped.(E) Permeable soil barrier. Geotextile fabric shall be used as the permeable soil barrier and shall be placed between the top of the media and the excavation backfill. Geotextile fabric shall conform to the following specifications for unwoven, spun-bounded polypropylene, polyester, or nylon filter wrap.Attached Graphic(F) Backfilling. Only Class Ib, II, or III soils as described in §285.30 of this title (relating to Site Evaluation) shall be used for backfill. Class Ia and IV soils are specifically prohibited for use as a backfill material. The backfill material shall be mounded over the excavated area so that the center of the backfilled area slopes down to the outer perimeter of the excavated area to allow for settling. Surface runoff impacting the disposal area is not permitted and the diversion method shall be addressed during development of the planning materials.(G) Drainfields on irregular terrain. Where the ground slope is greater than 15% but less than 30%, a multiple line drainfield may be constructed along descending contours as shown in §285.90(5) of this title. An overflow line shall be provided from the upper excavations to the lower excavations. The overflow line shall be constructed from solid pipe with an SDR of 35 or stronger, and the excavation carrying the overflow pipe shall be backfilled with soil only.(H) Drainfield plans. A number of sketches, specifications, and details for drainfield construction are provided in §285.90(4) and (5) of this title.(2) Evapotranspirative (ET) system. An ET system may be used in soils which are classified as unsuitable for standard subsurface absorption systems according to §285.31(b) of this title with respect to texture, restrictive horizons, or groundwater. Water saving devices must be used if an ET system is to be installed. ET systems shall only be used in areas of the state where the annual average evaporation exceeds the annual rainfall. Evaporation data is provided in §285.91(7) of this title.(A) Liners. An impervious liner shall be used between the excavated surface and the ET system in all Class Ia soils, where seasonal groundwater tables penetrate the excavation, and where a minimum of two feet of suitable soil does not exist between the excavated surface and either a restrictive horizon or groundwater. Liners shall be rubber, plastic, reinforced concrete, gunite, or compacted clay (one foot thick or more). If the liner is rubber or plastic, it must be impervious, and each layer must be at least 20 mils thick. Rubber or plastic liners must be protected from exposed rocks and stones by covering the excavated surface with a uniform sand cushion at least four inches thick. Clay liners shall have a permeability of 10 -7 centimeters/second or less, as tested by a certified soil laboratory.(B) ET system sizing. The following formula shall be used to calculate the top surface area of an ET system.Attached Graphic(C) The owner of the ET system shall be advised by the person preparing the planning materials of the limits placed on the system by the Q selected. If the Q is less than required by §285.91(3) of this title, the flow rate shall be included as a condition to the permit, and stated in an affidavit properly filed and recorded in the deed records of the county as specified in §285.3(b)(3) of this title (relating to General Requirements).(D) Backfill material. Backfill material shall consist of Class II soil as described in §285.30 of this title. All drainlines must be surrounded by a minimum of one foot of media. Backfill shall be used to fill the excavation between the media to allow the backfill material to contact the bottom of the excavation.(E) Vegetative cover for transpiration. The final grade shall be covered with vegetation fully capable of taking maximum advantage of transpiration. Evergreen bushes with shallow root systems may be planted in the disposal area to assist in water uptake. Grasses with dormant periods shall be overseeded to provide year-round transpiration.(F) ET systems. ET systems shall be divided into two or more equal excavations connected by flow control valves. One excavation may be removed from service for an extended period of time to allow it to dry out and decompose biological material which might plug the excavation. If one of the excavations is removed from service, the daily water usage must be reduced to prevent overloading of the excavation(s) still in operation. Normally, an excavation must be removed from service for two to three dry months for biological breakdown to occur.(G) ET system plans. A number of sketches for ET system construction are provided in §285.90(4) and (5) of this title.(3) Pumped effluent drainfield. Pumped effluent drainfields shall use the specifications for low-pressure dosed drainfields described in subsection (d)(1) of this section, with the following exceptions.(A) Applicability. If the slope of the site is greater than 2.0%, pumped effluent drainfields shall not be used. Pumped effluent drainfields may only be used by single family dwellings.(B) Length of distribution pipe. There shall be at least 1,000 linear feet of perforated pipe for a two bedroom single family dwelling. For each additional bedroom, there shall be an additional 400 linear feet of perforated pipe. No individual distribution line shall exceed 70 feet in length from the header.(C) Excavation width and horizontal separation. The excavated area shall be at least six inches wide. There shall be at least three feet of separation between trenches.(D) Lateral depth and vertical separation. All drainfield laterals shall be between 18 inches and three feet deep. There shall be a minimum vertical separation distance of one foot from the bottom of the excavation to a restrictive horizon, and a minimum vertical separation of two feet from the bottom of the excavation to groundwater.(E) Media. Each dosing pipe shall be placed with the drain holes facing down and placed on top of at least six inches of media (pea gravel or media up to two inches measured along its greatest dimension).(F) Pipe and hole size. The distribution (dosing) and manifold (header) pipe shall be 1.25 - 1.5 inches in diameter. The manifold may have a diameter larger than the distribution pipe, but shall not exceed 1.5 inches in diameter. Distribution (dosing) pipe holes shall be 3/16 - 1/4 inch in diameter and shall be spaced five feet apart.(G) Pump size. Pumped effluent drainfields shall use at least a 1/2 horsepower pump.(H) Backfilling. Only Class Ib, II, or III soils as described in §285.30(b)(1)(A) of this title shall be used for backfill.(c) Proprietary disposal systems.(1) Gravel-less drainfield piping. Gravel-less pipe may be used only on sites suitable for standard subsurface sewage disposal methods. Gravel-less pipe shall be eight-inch or ten-inch diameter corrugated perforated polyethylene pipe. The pipe shall be enclosed in a layer of unwoven spun-bonded polypropylene, polyester, or nylon filter wrap. Gravel-less pipe shall meet ASTM F-667 Standard Specifications for large diameter corrugated high density polyethylene (ASTM D 1248) tubing. The filter cloth must meet the same material specifications as described under subsection (b)(1)(E) of this section.(A) Planning parameters. Gravel-less drainfield pipe may be substituted for drainline pipe in both absorptive and ET systems. When gravel-less pipe is substituted, media will not be required. ET systems shall be backfilled with Class II soils only. All other planning parameters for absorptive or ET systems apply to drainfields using gravel-less pipe.(B) Installation. The connection from the solid line leaving the treatment tank to the gravel-less line shall be made by using an eight or ten-inch offset connector. The gravel-less line shall be laid level, the continuous stripe shall be up, and the lines shall be joined together with couplings. A filter cloth must be pulled over the joint to eliminate soil infiltration. The gravel-less pipe must be held in place during initial backfilling to prevent movement of the pipe. The end of each gravel-less line shall have an end cap and an inspection port. The inspection port shall allow for easy monitoring of the amount of sludge or suspended solids in the line, and allow the distribution lines to be back-flushed.(C) Drainfield sizing. To determine appropriate drainfield sizing, use a drainfield width of W = 2.0 feet for an eight-inch diameter gravel-less pipe, and an excavation width of W = 2.5 for a ten-inch gravel-less pipe.Attached Graphic(2) Leaching chambers. Leaching chambers are bottomless chambers that are installed in a drainfield excavation with the open bottom of the chamber in direct contact with the excavation. The ends of the chamber rows shall be linked together with non-perforated sewer pipe. The chambers shall completely cover the excavation, and adjacent chambers must be in contact with each other in such a manner that the chambers will not separate. To obtain the reduction in drainfield size allowed in subparagraph (A)(i) and (ii) of this paragraph for excavations wider than the chambers, the chambers shall be placed edge to edge.(A) The following formulas shall be used to determine the length of an excavation using leaching chambers.(i) The following formula is used for leaching chambers without water saving devices and the excavation is the same width as the chamber.Attached Graphic(ii) The following formula is used for leaching chambers with water saving devices and the excavation is the same width as the chamber.Attached Graphic(iii) The following formula is used for leaching chambers without water saving devices and the excavation width is greater than the width of the chamber.Attached Graphic(iv) The following formula is used for leaching chambers with water saving devices and the excavation width is greater than the width of the chamber.Attached Graphic(B) Leaching chambers shall not be used for absorptive drainfields in Class Ia or IV soils. Leaching chambers may be used instead of media in ET systems, low-pressure dosed drainfields, and soil substitution drainfields; however, the size of the drainfield shall not be reduced from the required area.(C) Backfill covering leaching chambers shall be Class Ib, II, or III soil.(3) Drip irrigation. Drip irrigation systems using secondary treatment may be used in all soil classes including Class IV soils. The system must be equipped with a filtering device capable of filtering particles larger than 100 microns and that meets the manufacturer's requirements.(A) Drainfield layout. The drainfield shall consist of a matrix of small-diameter pressurized lines, buried at least six inches deep, and pressure reducing emitters spaced at a maximum of 30-inch intervals. The pressure reducing emitter shall restrict the flow of effluent to a flow rate low enough to ensure equal distribution of effluent throughout the drainfield.(B) Effluent quality. The treatment preceding a drip irrigation system shall treat the wastewater to secondary treatment as described in §285.32(e) of this title unless the drip irrigation system has been approved by the executive director as a proprietary disposal system without the use of secondary treatment.(C) System flushing. Systems must be equipped to flush the contents of the lines back to the pretreatment unit when intermittent flushing is used. If continuous flushing is used during the pumping cycle, the contents of the lines must be returned to the pump tank.(D) Loading rates. Pressure reducing emitters can be used in all classes of soils using loading rates specified in §285.91(1) of this title. Pressure reducing emitters are assumed to wet four square feet of absorptive area per emitter; however, overlapping areas shall only be counted once toward absorptive area requirements. The loading rate shall be based on the most restrictive soil horizon within one foot of the pressure reducing emitter. When solid rock is less than 12 inches below the pressure reducing emitter, the loading rate shall be based on Class IV soils.(E) Vertical separation distance. There shall be a minimum of one foot of soil (with less than 60% gravel) between the pressure reducing emitter and groundwater and six inches between the pressure reducing emitter and solid rock, or fractured rock. For proprietary disposal systems that do not pretreat to secondary treatment, there shall be two feet of soil (with less than 30% gravel) between the groundwater and pressure reducing emitter and one foot of soil between solid rock or fractured rock and the pressure reducing emitter.(F) Labeling or listing. All drip irrigation system devices shall either be labeled by the manufacturer as suitable for use with domestic sewage, or be on the list of approved devices maintained by the executive director according to §285.32(c)(4) of this title.(4) Approval of proprietary disposal systems. All proprietary disposal systems, other than those described in this section, shall be approved by the executive director before they may be used. Proprietary disposal systems shall be approved by the executive director using the procedures established in §285.32(c)(5) of this title.(d) Nonstandard disposal systems. All disposal systems not described or defined in subsections (b) and (c) of this section are nonstandard disposal systems. Planning materials for nonstandard disposal systems must be developed by a professional engineer or professional sanitarian using basic engineering and scientific principles. The planning materials for paragraphs (1) - (5) of this subsection shall be submitted to the permitting authority and the permitting authority shall review and either approve or disapprove them on a case-by-case basis according to §285.5 of this title (relating to Submittal Requirements for Planning Materials). Electrical wiring for nonstandard disposal systems shall be installed according to §285.34(c) of this title (relating to Other Requirements). Upon approval of the planning materials, an authorization to construct will be issued by the permitting authority. Approval for a nonstandard disposal system is limited to the specific system described in the planning materials for the specific location. The systems identified in paragraphs (1) - (5) of this subsection must meet these requirements, in addition to the requirements identified for each specific system in this section.(1) Low-pressure dosed drainfield. Effluent from this type of system shall be pumped, under low pressure, into a solid wall force main and then into a perforated distribution pipe installed within the drainfield area.(A) The effluent pump in the pump tank must be capable of an operating range that will assure that effluent is delivered to the most distant point of the perforated piping network, yet not be excessive to the point that blowouts occur.(B) A start/stop switch or timer must be included in the system to control the dosing pump. An audible and visible high water alarm, on an electric circuit separate from the pump, must be provided.(C) Pressure dosing systems shall be installed according to either design criteria in the North Carolina State University Sea Grant College Publication UNC-S82-03 (1982) or other publications containing criteria or data on pressure dosed systems which are acceptable to the permitting authority. Additionally, the following sizing parameters are required for all low-pressure dosed drainfields and shall be used in place of the sizing parameters in the North Carolina State University Sea Grant College Publication or other acceptable publications.(i) The low-pressure dosed drainfield area shall be sized according to the effluent loading rates in §285.91(1) of this title and the wastewater usage rates in §285.91(3) of this title. The effluent loading rate (Ra) in the formula in §285.91(1) of this title shall be based on the most restrictive horizon one foot below the bottom of the excavation. Excavated areas can be as close as three feet apart, measured center to center. All excavations shall be at least six inches wide. To determine the length of the excavation, use the following formulas, where L = excavation length, and A = absorptive area.(I) If the media in the excavation is at least one foot deep, the length of the excavation is L = A/(w+2) where:(-a-) w = the width of the excavation for excavations one foot wide or greater; or(-b-) w = 1 for all excavations less than one foot wide.(II) If the media in the excavation is less than one foot deep, the length of the excavation is L = A/(w + 2H), where H = the depth of the media in feet and:(-a-) w = the width of the excavation for excavations one foot wide or greater; or(-b-) w = 1 for all excavations less than one foot wide.(ii) Each dosing pipe shall be placed with the drain holes facing down and placed on top of at least six inches of media (pea gravel or media up to two inches measured along the greatest dimension).(iii) Geotextile fabric meeting the criteria in subsection (b)(1)(E) of this section shall be placed over the media. The excavation shall be backfilled with Class Ib, II, or III soil.(iv) There shall be a minimum of one foot of soil (with less than 30% gravel) between the bottom of the excavation and solid or fractured rock. There shall be a minimum of two feet of soil (with less than 30% gravel) between the bottom of the excavation and groundwater. (2) Surface application systems. Surface application systems include those systems that spray treated effluent onto the ground.(A) Acceptable surface application areas. Land acceptable for surface application shall have a flat terrain (with less than or equal to 15% slope) and shall be covered with grasses, evergreen shrubs, bushes, trees, or landscaped beds containing mixed vegetation. There shall be nothing in the surface application area within ten feet of the sprinkler which would interfere with the uniform application of the effluent. Sloped land (with greater than 15%) may be acceptable if it is properly landscaped and terraced to minimize runoff.(B) Unacceptable surface application areas. Land that is used for growing food, gardens, orchards, or crops that may be used for human consumption, as well as unseeded bare ground, shall not be used for surface application.(C) Technical report. A technical report shall be prepared for any system using surface application and shall be submitted with the planning materials required in §285.5(a) of this title. The technical report shall describe the operation of the entire on-site sewage facility OSSF system, and shall include construction drawings, calculations, and the system flow diagram. Proprietary aerobic systems may reference the executive director's approval list instead of furnishing construction drawings for the system.(D) Effluent disinfection. Treated effluent must be disinfected before surface application. The effluent quality in the pump tank must meet the minimum required test results specified in §285.91(4) of this title. All new disinfection equipment shall be listed as approved dispensers or disinfection devices for wastewater systems by NSF International or by an ANSI accredited testing institution under ANSI/NSF Standard 46, or approved by the executive director. After January 1, 2016, all new disinfection equipment shall be listed as disinfection devices for wastewater systems by NSF International or by an ANSI accredited testing institution under ANSI/NSF Standard 46, or approved by the executive director. Installation of disinfection devices on new systems shall be performed by a licensed installer II. Tablet or other dry chlorinators shall use calcium hypochlorite properly labeled for wastewater disinfection. The effectiveness of the disinfection procedure will be established by monitoring either the fecal coliform count or total chlorine residual from representative effluent grab samples as directed in the testing and reporting schedule. The frequency of testing, the type of tests, and the required results are shown in §285.91(4) of this title. Replacement of disinfection devices on existing systems may be considered an emergency repair as described in §285.35 of this title (relating to Emergency Repairs) and shall be performed by either a licensed installer II, a licensed maintenance provider, or a registered maintenance technician.(E) Minimum required application area. The minimum surface application area required shall be determined by dividing the daily usage rate (Q), established in §285.91(3) of this title, by the allowable surface application rate (Ri = effective loading rate in gallons per square foot per day) found in §285.90(1) of this title or as approved by the permitting authority.(F) Landscaping plan. Applications for surface application disposal systems shall include a landscape plan. The landscape plan shall describe, in detail, the type of vegetation to be maintained in the disposal area. Surface application systems may apply treated and disinfected effluent upon areas with existing vegetation. If any ground within the proposed surface application area does not have vegetation, that bare area shall be seeded or covered with sod before system start-up. The vegetation shall be capable of growth, before system start-up.(G) Uniform application of effluent. Distribution pipes, sprinklers, and other application methods or devices must provide uniform distribution of treated effluent. The application rate must be adjusted so that there is no runoff.(i) Sprinkler criteria. The maximum inlet pressure for sprinklers shall be 40 pounds per square inch. Low angle nozzles (15 degrees or less in trajectory) shall be used in the sprinklers to keep the spray stream low and reduce aerosols. If the separation distance between the property line and the edge of the surface application area is less than 20 feet, sprinkler operation shall be controlled by timers set to spray between midnight and 5:00 a.m.(ii) Planning criteria. Circular spray patterns may overlap to cover all irrigated area including rectangular shapes. The overlapped area will be counted only once toward the total application area. For large systems, multiple sprinkler heads are preferred to single gun delivery systems.(iii) Effluent storage and pumping requirements.(I) For systems controlled by a timer and required to spray between midnight and 5:00 a.m., there shall be at least one day of storage between the alarm-on level and the pump-on level, and a storage volume of one-third the daily flow between the alarm-on level and the inlet to the pump tank.(II) For systems not controlled by a timer, the minimum dosing volume shall be at least one-half the daily flow, and a storage volume of one-third the daily flow between the alarm-on level and the inlet to the pump tank.(III) Pump tank construction and installation shall be according to §285.34(b) of this title.(iv) Distribution piping. Distribution piping shall be installed below the ground surface and hose bibs shall not be connected to the distribution piping. An unthreaded sampling port shall be provided in the treated effluent line in the pump tank.(v) Color coding of distribution system. All new distribution piping, valve box covers, and sprinkler tops shall be permanently colored purple to identify the system as a reclaimed water system according to Chapter 210 of this title (relating to Use of Reclaimed Water).(3) Mound drainfields. A mound drainfield is an absorptive drainfield constructed above the native soil surface. The mound consists of a distribution area installed within fill material placed on the native soil surface. The required area of the fill material is a function of the texture of the native soil surface, the depth of the native soil, basal area sizing considerations, and sideslope requirements. A description of mound construction, as well as construction requirements not addressed in this section can be found in the North Carolina State University Sea Grant College Publication UNC-SG-82-04 (1982).(A) A mound drainfield shall only be installed at a site where there is at least one foot of native soil; however, approval for installation on sites with less than one foot of native soil may be granted by the permitting authority on a case-by-case basis.(B) Mounds and mound distribution systems must be constructed with the longest dimension parallel to the contour of the site.(C) Soil classification, loading rates (R(a)), and wastewater usage rates (Q) shall all be obtained from this chapter.(D) The depth of soil material (with less than 30% gravel) between the bottom of the media and a restrictive horizon must be at least 1.5 feet to the restrictive horizon or two feet to groundwater. The soil material includes both the fill and the native soil.(E) The distribution area is defined as the interface area between the media containing the distribution piping and the fill material or the native soil, if applicable. The distribution length is the dimension parallel with the contour and equivalent to the length of the distribution media which must also run parallel with the contour. The distribution lines within the distribution media must extend to 12 inches of the end of the distribution media. The distribution width is defined as the distribution area divided by the distribution length.(i) The formula A(d) = Q/R(a) shall be used for calculating the minimum required distribution area of the mound where:Attached Graphic(ii) The area credited toward the minimum required distribution area can be determined in either of the following ways.(I) If the distribution area consists of a continuous six-inch layer of media over the fill, the credited area is the bottom interface area between the media and soil beneath the media.(II) If the distribution area consists of rows of media and distribution piping, the credited area can be calculated using the formulas listed in paragraph (1)(C)(i)(I) or (II) of this subsection depending on the depth of the media.(iii) For sites with greater than 2% slopes and solid bedrock, saturated zones, or class IV horizons within two feet of the native soil surface, the length to width ratio of the distribution area must be at least 7:1. For sites with greater than 2% slopes and no solid bedrock, saturated zones, or class IV horizons within two feet of the native soil surface, the length to width ratio of the distribution area must be at least 4:1. No length to width ratio is required on a site with 2% slope or less.(iv) Effluent must be pressure dosed into the distribution piping to ensure equal distribution and to control application rates.(v) If a continuous layer of media is used, the dosing lines must not be spaced more than three feet apart. If rows of media are used, the rows may be as close as three feet apart, measured edge to edge.(vi) The dosing holes must not be greater than three feet apart.(F) The basal area is defined as the interface area between the native soil surface and the fill material. The formula A(b) = Q/R(a) must be used for calculating the minimum required basal area of the mound where: A(b) = minimum required basal absorptive area in square feet; Q = design wastewater usage rate in gallons per day; R(a) = application rate of the native soil surface in gallons per square foot per day.(i) On sites with greater than 2% slope, the area credited toward the required minimum basal area is computed by multiplying the length of the distribution system by the distance from the upslope edge of the distribution system to the downslope toe of the mound.(ii) On sites with 2% slopes or less, the area credited toward the minimum required basal area sizing includes all areas below the distribution system as well as the side slope area on all side slope areas greater than six inches deep.(G) Mounds shall only be installed on sites with less than 10% slope.(H) The toe of the mound is considered the edge of the soil absorption system.(I) The side slopes must be no steeper than three to one.(J) There must be at least six inches of backfill over the distribution media and the mound shall be crowned to shed water.(4) Soil substitution drainfields. Soil substitution drainfields may be constructed in Class Ia soils, highly permeable fractured rock, highly permeable fissured rock, or Class II and III soils with greater than 30% gravel.(A) A soil substitution drainfield must not be used in Class IV soils or Class IV soils with greater than 30% gravel. Class III or IV soil shall not be used as the substituted soil in a soil substitution drainfield. There must be at least two feet of substituted soil between the bottom of the media and groundwater.(B) A soil substitution drainfield is constructed similar to a standard absorptive drainfield except that a minimum two foot thick Class Ib or Class II soil buffer shall be placed below and on all sides of the drainfield excavation. The soil buffer must extend at least to the top of the media. The two-foot buffer area along the sides of the excavation is not credited as bottom area in calculating absorptive area. However, the interface between the media and the substituted soil is credited as absorptive area.(C) Soil substitution drainfields must be designed to address soil compaction to prevent unlevel disposal. It is recommended that low-pressure dosing be used for effluent distribution. The edge of the substituted soil is considered the edge of the soil absorption drainfield in determining the appropriate separation distances as listed in §285.91(10) of this title.(D) Class Ia soils do not provide adequate treatment of wastewater through soil contact. A soil substitution drainfield may be constructed in Class Ia soils in order to provide adequate soil for treatment. Absorptive area sizing must be based on the textural class of the substituted soil and must follow the formulas in subsection (b)(1)(A)(vii)(I) of this section.(E) Highly permeable fractured and fissured rock, which contains soil in the fractures and fissures, does not provide adequate treatment of wastewater through soil contact. A soil substitution drainfield can be constructed in this permeable fractured and fissured rock in order to provide adequate soil for treatment. Absorptive area sizing must be based on the most restrictive textural class between either the native soil residing in the fractures or fissures or the substituted soil. The sizing must follow the formulas in subsection (b)(1)(A)(vii)(I) of this section.(F) Class II and III soils with greater than 30% gravel do not provide adequate treatment of wastewater through soil contact. A soil substitution drainfield can be constructed in Class II or III soils with greater than 30% gravel in order to provide adequate soil for treatment. Absorptive area sizing must be based on the most restrictive textural class between either the non-gravel portion of the native soil or the substituted soil. The sizing must follow the formulas in subsection (b)(1)(A)(vii)(I) of this section.(5) Drainfields following secondary treatment and disinfection. Subsurface drainfields following secondary treatment and disinfection may be constructed in Class Ia soils, fractured rock, fissured rock, or other conditions where insufficient soil depth will allow septic tank effluent to reach fractured rock or fissured rock, as long as the following conditions are met.(A) Drainfield sizing.(i) If the unsuitable feature is Class Ia soil, the disposal area sizing shall be based on the application rate for Class Ib soil. Some form of pressure distribution shall be used for effluent disposal.(ii) If the unsuitable feature is fractured or fissured rock, the system sizing should be based on the application rate for Class III soil. Some form of pressure distribution system shall be used for effluent disposal.(B) Effluent disinfection. Treated effluent must be disinfected as indicated in §285.32(e) of this title before discharging into the drainfield.(C) Other requirements. The affidavit, maintenance, and testing and reporting requirements of §285.3(b)(3) of this title and §285.7(a) and (d) of this title (relating to Maintenance Requirements) apply to these systems.(6) All other nonstandard disposal systems. The planning materials for all non-standard disposal systems not described in paragraphs (1) - (5) of this subsection shall be submitted to the executive director for review according to §285.5(b)(2) of this title before the systems can be installed.</content><note type="source"><p>Source Note: The provisions of this §285.33 adopted to be effective February 5, 1997, 22 TexReg 1114; amended to be effective June 13, 2001, 26 TexReg 4115; amended to be effective August 29, 2002, 27 TexReg 7917; amended to be effective August 3, 2006, 31 TexReg 6013; amended to be effective September 11, 2008, 33 TexReg 7536; amended to be effective December 27, 2012, 37 TexReg 9947; amended to be effective July 6, 2023, 48 TexReg 3508.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scD/s285.34"><num value="285.34">§285.34</num><heading>Other Requirements</heading><content>(a) Septic tank effluent filters. Effective 180 days after the effective date of these rules, all effluent filters that are installed in septic tanks shall be listed and approved under the NSF International Standard 46 (2000) or under any standard approved by the executive director.(b) Pump tanks. Pump tanks may be necessary when the septic tank outlet is at a lower elevation than the disposal field or for systems that require pressure disposal. All requirements in §285.32(b)(1)(D) - (F) of this title (relating to Criteria for Sewage Treatment Systems) also apply to pump tanks. The pump tank shall be constructed according to the following specifications.(1) Pump tank criteria. When effluent must be pumped to a disposal area, an appropriate pump shall be placed in a separate water-tight tank or chamber. A check valve may be required if the disposal area is above the pump tank. The pump tank shall be equipped to prevent siphoning. The tank shall be provided with an audible and visible high water alarm. If an electrical alarm is used, the power circuit for the alarm shall be separate from the power circuit for the pump. Batteries may be used for back-up power supply only. All electrical components shall be listed and labeled by Underwriters Laboratories (UL). At the discretion of the permitting authority, leak testing using water filled to the inside level of the tank lid or to the top of the riser(s) may be required.(2) Pump tank sizing. Pump tanks shall be sized to contain one-third of a day's flow between the alarm-on level and the inlet to the pump tank. The capacity above the alarm-on level may be reduced to four hours average daily flow if the pump tank is equipped with multiple pumps. See §285.33(d)(2)(G)(iii) of this title (relating to Criteria for Effluent Disposal Systems) for sizing of pump tanks for surface application systems.(3) Pump specifications. A single pump may be used for hydraulic flows equal to or less than 1,000 gallons per day. Dual pumps are required for hydraulic flows greater than 1,000 gallons per day. A dual pump system shall have the "alarm on" level below the "second pump on" level, and shall have a lock-on feature in the alarm circuit so that once it is activated it will not go off when the second pump draws the liquid level below the "alarm on" level. All audible and visible alarms shall have a manual "silence" switch. The pump switch-gear shall be set such that each pump operates as the first pump on an alternating basis. All pumps shall be rated by the manufacturer for pumping sewage or sewage effluent.(4) Equalization tanks. In addition to the requirements for pump tanks in this section, equalization tanks shall meet the following criteria:(A) The equalization tank must be preceded by a pretreatment tank.(B) If an equalization tank is serving residences, the tank shall have a volume between the pump intake level and the high water level of at least 50% of the design flow and be designed to time dose at equal intervals and equal doses throughout a 24-hour period. The tank may contain a gravity line located above the high water alarm level which allows flow to the aerobic treatment unit. The design will use no fewer than 12 doses throughout the 24-hour period.(C) If an equalization tank is designed to equalize flows over periods longer than a 24-hour period, the tank shall be designed to time dose at equal intervals and equal doses over the flow equalization time period. The design shall have a storage between the highest wastewater flow line during the period and the high level alarm equal to at least 20% of the flow generated during peak days. The tank may contain a gravity line located above the high water alarm level which allows flow to the aerobic treatment unit.(c) Electrical wiring. All electrical wiring and their conduits shall conform to the requirements of the National Electric Code (1999) or under any other standards approved by the executive director. Additionally, all external wiring shall be installed in approved, rigid, non-metallic gray code electrical conduit. The conduit shall be buried according to the requirements in the National Electrical Code and terminated at a main circuit breaker panel or sub-panel. The permitting authority may approve up to four feet of external wiring to be contained in water-tight, flexible electrical conduit between the buried wire and the circuit breaker panel or sub-panel. Any external wiring that exceeds four feet must be contained in rigid, non-metallic gray code electrical conduit. Connections shall be in approved junction boxes. All electrical components shall have an electrical disconnect within direct vision from the place where the electrical device is being serviced. Electrical disconnects must be weatherproof (approved for outdoor use) and have maintenance lockout provisions.(d) Grease interceptors. Grease interceptors shall be used on kitchen waste-lines from institutions, hotels, restaurants, schools with lunchrooms, and other buildings that may discharge large amounts of greases and oils to the OSSF. Grease interceptors shall be structurally equivalent to, and backfilled according to, the requirements established for septic tanks under §285.32(b)(1)(D) - (F) of this title. The interceptor shall be installed near the plumbing fixture that discharges greasy wastewater and shall be easily accessible for cleaning. Grease interceptors shall be cleaned out periodically to prevent the discharge of grease to the disposal system. Grease interceptors shall be properly sized and installed according to the requirements of the 2000 edition of the Uniform Plumbing Code, the 1980 EPA Design Manual: Onsite Wastewater Treatment and Disposal Systems, or other prevailing code.(e) Holding tanks. Tanks shall be constructed according to the requirements established for septic tanks under §285.32(b)(1)(D) - (E) of this title. Inlet fittings are required. No outlet fitting shall be provided. A baffle is not required. Holding tanks shall be used only on sites where other methods of sewage disposal are not feasible (these holding tank provisions do not apply to portable toilets or to an office trailer at a construction site). All holding tanks shall be equipped with an audible and visible alarm to indicate when the tank has been filled to within 75% of its rated capacity. A port with its smallest dimension being at least 12 inches shall be provided in the tank lid for inspection, cleaning, and maintenance. This port shall be accessible from the ground surface and must be easily removable and watertight.(1) Minimum capacity. The minimum capacity of the holding tank shall be sufficient to store the estimated or calculated daily wastewater flow for a period of one week (wastewater usage rate in gallons per day x seven days).(2) Location. Holding tanks shall be installed in an area readily accessible to a pump truck under all weather conditions, and at a location that meets the minimum distance requirements in §285.91(10) of this title (relating to Tables).(3) Pumping requirements. A scheduled pumping contract with a waste transporter, holding a current registration with the executive director, must be provided to the permitting authority before a holding tank may be installed. Pumping records must be retained for five years.(f) Composting toilets. Composting toilets will be approved by the executive director provided the system has been tested and certified under NSF International Standard 41 (1999) or under any other standards approved by the executive director.(g) Condensation. If condensate lines are plumbed directly into an OSSF, the increased water volume must be accounted for (added to the usage rate) in the system planning materials.</content><note type="source"><p>Source Note: The provisions of this §285.34 adopted to be effective February 5, 1997, 22 TexReg 1114; amended to be effective June 13, 2001, 26 TexReg 4115; amended to be effective September 11, 2008, 33 TexReg 7536; amended to be effective December 27, 2012, 37 TexReg 9947; amended to be effective July 6, 2023, 48 TexReg 3508.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scD/s285.35"><num value="285.35">§285.35</num><heading>Emergency Repairs</heading><content>(a) An emergency repair may be made to an on-site sewage facility (OSSF) providing that the repair:(1) is made for the abatement of an immediate, serious and dangerous health hazard; and(2) does not constitute an alteration of that OSSF system's planning materials and function.(b) Emergency repairs include tasks such as replacing tank lids, replacing inlet and outlet devices, repairing risers and riser caps, repairing or replacing disinfection devices, repairing damaged drip irrigation tubing and repairing solid lines. Such repairs must meet criteria established in this chapter.(c) The individual authorized to make the repair shall notify the permitting authority, in writing, within 72 hours after starting the emergency repairs. The notice must include a detailed description of the methods and materials used in the repair.(d) An inspection of the emergency repairs may be required at the discretion of the permitting authority.</content><note type="source"><p>Source Note: The provisions of this §285.35 adopted to be effective February 5, 1997, 22 TexReg 1114; amended to be effective June 13, 2001, 26 TexReg 4115; amended to be effective December 27, 2012, 37 TexReg 9947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scD/s285.36"><num value="285.36">§285.36</num><heading>Abandoned Tanks, Boreholes, Cesspools, and Seepage Pits</heading><content>(a) A tank that is not to be used again for holding sewage shall be abandoned.(b) To properly abandon, the owner shall conduct the following actions, in the order listed.(1) All tanks, boreholes, cesspools, seepage pits, holding tanks, and pump tanks shall have the wastewater removed by a waste transporter, holding a current registration with the executive director.(2) All tanks, boreholes, cesspools, seepage pits, holding tanks, and pump tanks shall be filled to ground level with fill material (less than three inches in diameter) which is free of organic and construction debris.</content><note type="source"><p>Source Note: The provisions of this §285.36 adopted to be effective February 5, 1997, 22 TexReg 1114; amended to be effective June 13, 2001, 26 TexReg 4115; amended to be effective December 27, 2012, 37 TexReg 9947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scD/s285.37"><num value="285.37">§285.37</num><heading>On-Site Sewage Facilities and Water Treatment Equipment and Appliances</heading><content>(a) Water treatment equipment is defined as an appliance, which includes water softeners and reverse osmosis systems, used to:(1) alter the mineral content of water;(2) alter the microbiological content of water;(3) alter other substances found in water; or(4) purify water.(b) Back flush or discharge from water treatment equipment installed on or after September 1, 2003, may be discharged into an on-site sewage facility (OSSF) as provided in this subsection.(1) Water softener.(A) The water softener must regenerate using a demand-initiated regeneration (DIR) control device. The water softener must be clearly labeled as being equipped with a DIR control device as follows:(i) the label shall be affixed to the outside of the water softener so the label can be easily inspected and read; and(ii) the label shall provide the name of the company that installed the water softener.(B) A water softener may be connected to an OSSF with a non-standard or proprietary treatment system only as described in §285.32(c) and (d) of this title (relating to Criteria for Sewage Treatment Systems) if the water softener drain line:(i) bypasses the treatment system; and(ii) connects directly to a pump tank if the OSSF has a pump tank or directly to the pipe between the treatment system and the disposal system if no pump tank exists.(C) An owner may continue to use a water softener that discharges to an OSSF and does not meet the requirements of subparagraph (A) of this paragraph if the water softener was installed before September 1, 2003. An owner must replace any water softener installed before September 1, 2003, with a water softener that meets the requirements of subparagraphs (A) and (B) of this paragraph at such time as:(i) an owner replaces the existing water softener; or(ii) an owner or installer installs, alters, constructs, or repairs an OSSF for the structure or property served by the existing water softener.(2) Reverse osmosis system.(A) Point-of-use (under sink unit) reverse osmosis systems. The back flush from a point-of-use reverse osmosis system may be discharged into an OSSF without including calculations of the back flush water volume in the OSSF planning materials.(B) Point-of-entry (whole house unit) reverse osmosis systems. The back flush from a point-of-entry reverse osmosis system may be discharged into an OSSF if:(i) the owner can demonstrate that the point-of-entry reverse osmosis system does not cause hydraulic overloading of the OSSF; or(ii) the water volume from the point-of-entry reverse osmosis system is accounted for (added to the usage rate in §285.91(3) of this title (relating to Tables)) by providing calculations of the increase in wastewater volume with the OSSF planning materials.(3) Water treatment equipment other than water softeners and reverse osmosis systems. If an owner uses water treatment equipment other than water softeners or reverse osmosis systems, the back flush from the water treatment equipment may be discharged into an OSSF if the water volume is added to the OSSF usage rate in §285.91(3) of this title. This water volume calculation must be provided with the OSSF planning materials.(c) Discharges from all water treatment equipment shall enter the OSSF system through an airgap or an airgap device as required in the Uniform Plumbing Code (2000).</content><note type="source"><p>Source Note: The provisions of this §285.37 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective April 28, 2004, 29 TexReg 3963.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scD/s285.38"><num value="285.38">§285.38</num><heading>Prevention of Unauthorized Access to On-Site Sewage Facilities (OSSFs)</heading><content>(a) Applicability.(1) The construction criteria under this subsection applies to:(A) pretreatment (trash) tanks referenced in §285.32(b)(1)(G) of this title (relating to Criteria for Sewage Treatment Systems);(B) proprietary treatment units referenced in §285.32(c) of this title;(C) non-standard treatment units referenced in §285.32(d) of this title;(D) pump tanks referenced in §285.34(b) of this title (relating to Other Requirements);(E) holding tanks referenced in §285.34(e) of this title; and(F) septic tanks referenced in §285.32(b)(1) of this title.(2) The construction criteria found in this subsection is in addition to the construction criteria in §285.32 of this title.(b) All tanks must have inspection or cleanout ports located on the tank top over all inlet and outlet devices. Each inspection or cleanout port must be offset to allow for pumping of the tank. The ports may be configured in any manner as long as the smallest dimension of the opening is at least 12 inches, and is large enough to provide for maintenance and equipment removal.(c) For all OSSF"s permitted on or after September 1, 2023, inspection and cleanout ports shall have risers over the port openings which extend to a minimum of two inches above grade. A secondary plug, cap, or other suitable restraint system shall be provided below the riser cap to prevent tank entry if the cap is unknowingly damaged or removed.(d) Risers.(1) The risers shall have inside diameters which are equal to or larger than the inspection or cleanout ports.(2) Risers must be permanently fastened to the tank lid or cast into the tank. The connection between the riser and the tank lid must be watertight.(3) Risers must be fitted with removable watertight caps and protected against unauthorized intrusions. Acceptable protective measures include:(A) a padlock;(B) a cover that can be removed with tools;(C) a cover having a minimum net weight of 29.5 kilograms (65 pounds) set into a recess of the tank lid; or(D) any other means approved by the executive director.(4) Risers and riser caps exposed to sunlight must have ultraviolet light protection.(5) Risers must be able to withstand the pressures created by the surrounding soil.(e) Installation of a riser to any component of a new OSSF is considered construction under this chapter and must be performed by a licensed installer.(f) Installation of risers for OSSF components installed on or after September 1, 2012, are considered an emergency repair as described in §285.35 of this title (relating to Emergency Repairs) and may be performed by either a licensed Installer, licensed maintenance provider, or registered maintenance technician.(g) Any person who accesses any secured lid(s) or cover(s) on an OSSF shall secure the lid(s) or cover(s) when access is complete.(h) All inspection reports sent to Authorized Agents, Regional Offices, and homeowners must document that the access to the OSSF inspection and cleanout ports was secured after the maintenance or inspection activities were completed or that the OSSF system owner refused to pay for repairs that were needed to secure the OSSF inspection and cleanout ports.</content><note type="source"><p>Source Note: The provisions of this §285.38 adopted to be effective August 16, 2012, 37 TexReg 6055; amended to be effective July 6, 2023, 48 TexReg 3508.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scD/s285.39"><num value="285.39">§285.39</num><heading>On-Site Sewage Facilities Maintenance and Management Practices</heading><content>(a) An installer shall provide the owner of an on-site sewage facility (OSSF) with written information regarding maintenance and management practices and water conservation measures related to the OSSF installed, repaired, or maintained by the installer.(b) Owners shall have the treatment tanks pumped on a regular basis in order to prevent sludge accumulation from spilling over to the next tank or the outlet device. Owners of treatment tanks shall engage only persons registered with the executive director to transport the treatment tank contents.(c) Owners shall not allow driveways, storage buildings, or other structures to be constructed over the treatment or disposal systems.</content><note type="source"><p>Source Note: The provisions of this §285.39 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective April 28, 2004, 29 TexReg 3963.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c285/scE"><num value="E">SUBCHAPTER E</num><heading>SPECIAL REQUIREMENTS FOR OSSFS LOCATED IN THE EDWARDS AQUIFER RECHARGE ZONE</heading><section identifier="/us/state/tx/tac/t30/p1/c285/scE/s285.40"><num value="285.40">§285.40</num><heading>OSSFs on the Recharge Zone of the Edwards Aquifer</heading><content>(a) Applicability. The following additional provisions apply to the Edwards Aquifer recharge zone as defined in §285.2 of this title (relating to Definitions) and are not intended to be applied to any other areas in the State of Texas.(b) Additional application requirements for new OSSFs. All planning materials shall be submitted to the permitting authority by a professional engineer or professional sanitarian.(c) Conditions for obtaining an authorization to construct. In order to obtain an authorization to construct in the Edwards Aquifer recharge zone, the following conditions must be met.(1) Minimum lot sizes. Each lot or tract of land on the recharge zone on which OSSFs are to be located shall have an area of at least one acre (43,560 square feet) per single family dwelling.(2) Minimum separation distances from recharge features.(A) No sewage treatment tank or holding tank may be located within 50 feet of a recharge feature as defined in §285.2 of this title.(B) No soil absorption system may be located within 150 feet of a recharge feature.(C) Additional separation distances in §285.91(10) of this title (relating to Tables) shall be used.(d) Existing OSSFs. OSSFs shall comply with the provisions of this subchapter except as provided under §285.3(f)(1) of this title (relating to General Requirements). If the OSSF is required to have a new permit, the permit shall be obtained according to §285.3 of this title. An OSSF installed on the recharge zone before April 11, 1977, in either Uvalde or Kinney Counties is not required to be permitted, provided the OSSF is not causing pollution, is not a threat to the public health, is not a nuisance, and has not been altered.(e) Exceptions for certain lots. Lots platted and recorded with the following counties in their official plat record, deed, or tax records before the date indicated in this subsection, are exempted from the one-acre minimum lot size requirement, according to the conditions of subsection (f) of this section. However, an Edwards Aquifer protection plan under Chapter 213 of this title (relating to Edwards Aquifer) may be required for construction of regulated activities, including home construction:(1) Kinney, Uvalde, Medina, Bexar, and Comal Counties--March 26, 1974;(2) Hays County--June 21, 1984;(3) Travis County--November 21, 1983; and(4) Williamson County--May 21, 1985.(f) Notice. Any owner who divides his property into two or more residential lots, on which any part of the OSSF will be on the recharge zone, must inform, in writing, each prospective purchaser, lessee, or renter of the following:(1) which lots within the regulated development are subject to the terms and conditions of this section;(2) that an authorization to construct shall be required before an OSSF can be constructed in the subdivision;(3) that a notice of approval shall be required for the operation of an OSSF; and(4) whether an application for a water pollution abatement plan as defined in Chapter 213 of this title has been made, whether it has been approved, and if any restrictions or conditions have been placed on that approval.</content><note type="source"><p>Source Note: The provisions of this §285.40 adopted to be effective February 5, 1997, 22 TexReg 1114; amended to be effective June 13, 2001, 26 TexReg 4115.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scE/s285.41"><num value="285.41">§285.41</num><heading>Edwards Aquifer Protection Plan</heading><content>(a) An Edwards Aquifer protection plan as defined in Chapter 213 of this title (relating to Edwards Aquifer) shall be approved by the appropriate regional office before an authorization to construct may be issued for an OSSF by a permitting authority.(b) For projects where an Edwards Aquifer protection plan has been approved by a regional office, the written notice required in §285.40(f) of this title (relating to OSSFs on the Recharge Zone of the Edwards Aquifer) shall include the separation distance requirements to any existing or possible recharge features found on the proposed lot or lots. The location of recharge features can be obtained from the designated representative or authorized agent of the county where the development will take place, from an affected groundwater conservation district, or as identified in the water pollution abatement plan for the proposed lot or lots as provided in §213.5(b)(4)(F)(ii) of this title (relating to Required Edwards Aquifer Protection Plans, Notification, and Exemptions).</content><note type="source"><p>Source Note: The provisions of this §285.41 adopted to be effective June 13, 2001, 26 TexReg 4115.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scE/s285.42"><num value="285.42">§285.42</num><heading>Other Requirements</heading><content>(a) If any recharge feature is discovered during construction of an OSSF, all regulated activities near the feature shall be suspended immediately. The owner shall immediately notify the appropriate regional office of the discovery of the feature. Activities regulated under Chapter 213 of this title (relating to Edwards Aquifer) or this chapter shall not proceed near the feature until the permitting authority, in conjunction with the appropriate regional office, has reviewed and approved a plan proposed to protect the feature, the structural integrity of the OSSF, and the water quality of the aquifer. The plan shall be sealed, signed, and dated by a professional engineer.(b) No OSSF may be installed closer than 75 feet from the banks of the Nueces, Dry Frio, Frio, or Sabinal Rivers downstream from the northern Uvalde county line to the recharge zone.(c) Additional requirements may apply as required by the permitting authority's order, ordinance, or resolution.</content><note type="source"><p>Source Note: The provisions of this §285.42 adopted to be effective June 13, 2001, 26 TexReg 4115.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c285/scF"><num value="F">SUBCHAPTER F</num><heading>LICENSING AND REGISTRATION REQUIREMENTS FOR INSTALLERS, APPRENTICES, DESIGNATED REPRESENTATIVES, SITE EVALUATORS, MAINTENANCE PROVIDERS, AND MAINTENANCE TECHNICIANS</heading><section identifier="/us/state/tx/tac/t30/p1/c285/scF/s285.50"><num value="285.50">§285.50</num><heading>General Requirements</heading><content>(a) The procedures for issuing licenses and registrations for on-site sewage facilities (OSSF) installers, designated representatives, apprentices, site evaluators, maintenance providers, and maintenance technicians are in Chapter 30 of this title (relating to Occupational Licenses and Registrations).(b) Any individual who constructs any part of an OSSF shall hold a current installer license appropriate for the type of system being installed, except as noted in §30.244 of this title (relating to Exemptions). This does not include the individuals under the direct supervision of the licensed installer or registered apprentice.(c) Any individual who performs the duties of a designated representative under §285.62 of this title (relating to Duties and Responsibilities of Designated Representatives) on behalf of the authorized agent shall possess a current designated representative license. Individuals may not advertise or represent themselves to the public as designated representatives unless they are employed, appointed, or contracted by an authorized agent and hold a current designated representative license.(d) Any individual who performs the duties of an apprentice under §285.63 of this title (relating to Duties and Responsibilities of Registered Apprentices) must hold a current apprentice registration under a licensed installer.(e) Any individual, other than a professional engineer, who performs the duties of a site evaluator under §285.60 of this title (relating to Duties and Responsibilities of Site Evaluators) shall possess a current site evaluator license. An individual possessing a current professional engineer license is not required to possess a site evaluator license.(f) When required by the permitting authority, the installer or the installer's apprentice must be present at the job site during the inspection or re-inspection of the OSSF.(g) Any individual who acts in any capacity for a permitting authority shall not, within that permitting authority's area of jurisdiction:(1) work as an apprentice to an OSSF installer;(2) work as an OSSF installer;(3) work for an OSSF maintenance provider or maintenance technician;(4) work as a site evaluator; or(5) perform any other OSSF-related activities which fall under the permitting authority's regulatory jurisdiction, except those activities directly related to the individual's duties as an employee of, appointee to, or contractor for the permitting authority.(h) An Installer I is authorized to construct OSSFs as described in §285.91(9) of this title (relating to Tables).(i) An Installer II is authorized to construct all types of OSSFs as described in §285.91(9) of this title.(j) Any individual who performs maintenance of aerobic OSSFs under §285.64 of this title (relating to Duties and Responsibilities of Maintenance Providers and Maintenance Technicians) shall possess a current maintenance provider license or maintenance technician registration with the commission.</content><note type="source"><p>Source Note: The provisions of this §285.50 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective December 17, 2001, 26 TexReg 10363; amended to be effective August 3, 2006, 31 TexReg 6013; amended to be effective September 11, 2008, 33 TexReg 7536.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scF/s285.60"><num value="285.60">§285.60</num><heading>Duties and Responsibilities of Site Evaluators</heading><content>A site evaluator shall:(1) possess a current license from the executive director;(2) record their license number on all site evaluations, and all other correspondence prepared as a site evaluator under this chapter;(3) provide true and accurate information in the site evaluation report required by §285.30(a) of this title (relating to Site Evaluation) and in any other documentation;(4) maintain a current professional engineer license, professional sanitarian license, professional geoscientist license or certified professional soil scientist certificate, in addition to the site evaluator license if the site evaluator license was granted on the basis of holding one of the licenses listed in this section;(5) conduct preconstruction site evaluations, including visiting the site and performing soil analysis, a site survey, or other activities necessary to determine if a site is suitable for an on-site sewage facility (OSSF); and(6) maintain a current address and phone number with the executive director and submit any change in address or phone number in writing within 30 days after the date of the change.</content><note type="source"><p>Source Note: The provisions of this §285.60 adopted to be effective December 17, 2001, 26 TexReg 10363; amended to be effective September 11, 2008, 33 TexReg 7536.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scF/s285.61"><num value="285.61">§285.61</num><heading>Duties and Responsibilities of Installers</heading><content>An installer shall:(1) possess a current Installer I or Installer II license before beginning construction of an on-site sewage facility (OSSF);(2) record the installer's license number on all bids, proposals, contracts, invoices, proposed construction drawings, or other correspondence with owners, the executive director, or authorized agents;(3) provide true and accurate information on any application or any other documentation;(4) begin the construction of an OSSF only after obtaining documentation that the owner, or owner's agent, has the permitting authority's authorization to construct, unless a permit is not required;(5) notify the permitting authority of the date on which the installer plans to begin the construction of an OSSF, unless a permit is not required;(6) construct an OSSF to meet the minimum criteria required by this chapter or the more stringent requirements of the permitting authority;(7) construct the OSSF that has been authorized by the permitting authority for the specific location identified in the site evaluation;(8) stop construction and return to the permitting authority to change the planning materials for the permit if site or soil conditions, materials, or supplies make compliance with the planning materials impossible;(9) be present at the job site during the construction of the OSSF or be represented by an apprentice;(10) be present at the job site at least once each work day if the OSSF work is supervised by an apprentice and verify that the work performed by the apprentice is according to the requirements of this chapter;(11) request the initial, final, and any other required inspection or inspections from the permitting authority;(12) refrain from removing materials from, or altering components of, an OSSF after the final inspection;(13) submit to the permitting authority, within 72 hours of starting emergency repairs, a written statement describing the need for any emergency repair and the work performed;(14) maintain a current address and phone number with the executive director and submit any change in address or phone number in writing within 30 days after the date of the change; and(15) make all OSSF repairs in accordance with the approved planning materials and this chapter.</content><note type="source"><p>Source Note: The provisions of this §285.61 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective August 3, 2006, 31 TexReg 6013; amended to be effective September 11, 2008, 33 TexReg 7536.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scF/s285.62"><num value="285.62">§285.62</num><heading>Duties and Responsibilities of Designated Representatives</heading><content>A designated representative shall:(1) possess a current license from the executive director;(2) be employed, appointed, or contracted by an authorized agent;(3) enforce the rules and regulations of the Texas Health and Safety Code, Chapter 366, the Texas Water Code, this chapter, and the permitting authority;(4) assist the authorized agent in amending the authorized agent's order, ordinance, or resolution when necessary;(5) conduct subdivision reviews in conformance with this chapter;(6) review variance requests to ensure compliance with the requirements of the permitting authority;(7) approve only planning materials that conform with the requirements of this chapter and the requirements of the permitting authority;(8) issue the authorization to construct;(9) verify, before the initial inspection, that the installer possesses a current license and has the correct classification for constructing the permitted or planned on-site sewage facility (OSSF);(10) conduct construction inspections as required under §285.3(d) of this title (relating to General Requirements);(11) approve only construction that conforms with this chapter, the authorized agent's approved order, ordinance, or resolution, and the notice of approval;(12) issue the notice of approval;(13) ensure collection of all OSSF related fees;(14) ensure maintenance of accurate records of permitting, fees, inspections, maintenance reports, and complaints;(15) investigate complaints and take appropriate and timely action;(16) record his license number on all plan reviews, complaint investigations, inspection reports, site evaluations, and any other correspondence prepared in performance of the duties of a Designated Representative under this chapter;(17) record the installer license number in any inspection reports relating to that installer;(18) receive compensation for OSSF related services within the authorized agent's area of jurisdiction, only from the authorized agent or according to a signed contract with the authorized agent;(19) while employed by, appointed to, or contracted by the authorized agent, refrain from performing any of the following activities within the authorized agent's area of jurisdiction:(A) working as an apprentice to an OSSF installer;(B) working as an OSSF installer;(C) working for an OSSF maintenance provider;(D) working as a site evaluator; or(E) performing any other OSSF-related activities which fall under the authorized agent's regulatory jurisdiction, except those activities directly related to the individual's duties as a designated representative for the authorized agent;(20) verify the existence of a maintenance contract between an owner and the maintenance provider according to §285.7(d) of this title (relating to Maintenance Requirements);(21) maintain a current address and phone number with the executive director and submit any change in address or phone number in writing within 30 days after the date of the change; and(22) receive written permission from the designated representative's employer if the designated representative desires to perform any OSSF-related activities for compensation outside of the authorized agent's regulatory jurisdiction, to be kept on file in the designated representative's office.</content><note type="source"><p>Source Note: The provisions of this §285.62 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective December 17, 2001, 26 TexReg 10363; amended to be effective September 11, 2008, 33 TexReg 7536.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scF/s285.63"><num value="285.63">§285.63</num><heading>Duties and Responsibilities of Registered Apprentices</heading><content>(a) An apprentice shall:(1) possess a current registration from the executive director;(2) represent his supervising installer during construction at the site;(3) perform services associated with on-site sewage facility (OSSF) construction under the direct supervision and direction of the installer on-site or be in direct communication with the installer;(4) refrain from receiving compensation for an OSSF installation from anyone except the supervising installer; and(5) maintain a current address and phone number with the executive director and submit any change in address or phone number in writing within 30 days after the date of the change.(b) An apprentice shall not act as, advertise, or offer to perform services of an installer. An apprentice may not perform any services associated with OSSF construction except under the direct supervision of an installer holding a current license or according to the supervising installer's express directions.</content><note type="source"><p>Source Note: The provisions of this §285.63 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective December 17, 2001, 26 TexReg 10363; amended to be effective September 11, 2008, 33 TexReg 7536.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scF/s285.64"><num value="285.64">§285.64</num><heading>Duties and Responsibilities of Maintenance Providers and Maintenance Technicians</heading><content>(a) A maintenance provider shall:(1) possess a current license from the executive director;(2) ensure maintenance of accurate records of fees, inspections, and reports;(3) satisfy the requirements of the maintenance contract between the homeowner of the OSSF system and the maintenance provider according to §285.7 of this title (relating to Maintenance Requirements);(4) maintain a current address and phone number with the executive director and submit any change in address or phone number to the executive director in writing within 30 days after the date of the change; and(5) perform maintenance on each OSSF system under executed contract, keep a maintenance record, and submit maintenance reports to the permitting authority and the owner of the OSSF with whom the maintenance provider is contracted to provide maintenance, according to §285.7 of this title.(b) A maintenance technician shall:(1) possess a current registration from the executive director;(2) represent his supervising maintenance provider while performing maintenance on an OSSF;(3) perform services associated with OSSF maintenance under the direct supervision and direction of the maintenance provider on-site or be in direct communication with the maintenance provider;(4) not receive compensation for OSSF maintenance from anyone except the supervising maintenance provider;(5) maintain a current address and phone number with the executive director and submit any change in address or phone number to the executive director in writing within 30 days after the date of the change; and(6) not advertise or otherwise portray themselves as a maintenance provider.</content><note type="source"><p>Source Note: The provisions of this §285.64 adopted to be effective August 3, 2006, 31 TexReg 6013; amended to be effective September 11, 2008, 33 TexReg 7536; amended to be effective July 6, 2023, 48 TexReg 3508.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scF/s285.65"><num value="285.65">§285.65</num><heading>Suspension or Revocation of License or Registration</heading><content>(a) Suspension. In addition to the grounds listed in Texas Water Code, §7.303, the commission may suspend an OSSF installer's license, a designated representative's license, a site evaluator's license, an apprentice's registration, a maintenance provider's license, or a maintenance technician's registration for violation of duties and responsibilities listed in this subchapter, as recommended by the executive director. Additional grounds for suspension of these licenses and registrations include (and are not limited to) the following reasons.(1) A maintenance provider's license can be suspended for:(A) failing to perform required maintenance on an OSSF for at least eight consecutive months (the failure to maintain records is evidence of failure to perform maintenance on the OSSF);(B) failing to properly submit maintenance reports required by §285.7(d) of this title (relating to Maintenance Requirements) for an individual OSSF in a 12-month period; or(C) failing to properly submit four or more required OSSF maintenance reports over any two-year period.(2) A designated representative's license can be suspended for:(A) failing to verify, before the initial inspection for a particular OSSF, that the individual installing the OSSF is a properly licensed installer;(B) failing to investigate nuisance complaints or complaints against installers, within 30 days of receipt of the complaint, according to §285.71 of this title (relating to Authorized Agent Enforcement of OSSFs); or(C) failing to enforce the requirements of an order, ordinance, or resolution of an authorized agent.(b) Revocation. In addition to the grounds listed in Texas Water Code, §7.303 the commission may revoke an OSSF installer's license, a designated representative's license, a site evaluator's license, an apprentice's registration, a maintenance provider's license, or a maintenance technician's registration for violation of duties and responsibilities listed in this subchapter, as recommended by the executive director. Additional grounds for revocation of these licenses and registrations include (and are not limited to) the following reasons.(1) An OSSF installer's license can be revoked for:(A) constructing, or otherwise facilitating the construction of, an OSSF that is not in compliance with this chapter; or(B) allowing, or beginning, the construction of an OSSF without a permit when a permit is required.(2) A designated representative's license can be revoked for:(A) approving construction of an OSSF that is not in conformance with this chapter, the authorized agent's approved order, ordinance, or resolution or the notice of approval;(B) practicing as an apprentice, maintenance provider, maintenance technician, site evaluator or an installer in the authorized agent's area of jurisdiction while employed, appointed, or contracted by that authorized agent; or(C) working for a maintenance provider or maintenance company in the authorized agent's area of jurisdiction while employed, appointed, or contracted by that authorized agent.(3) A site evaluator's license can be revoked for failing to maintain a current professional engineer license, professional sanitarian license, professional geoscientist license, or a certified professional soil scientist certificate.(4) An apprentice's registration can be revoked for:(A) acting as, advertising, or performing duties and responsibilities of an installer without the direct supervision of, or direct communication with, the supervising installer; or(B) receiving compensation for an OSSF installation from someone other than the supervising installer.(5) A maintenance provider's license or maintenance company's registration can be revoked for:(A) failing to perform required maintenance on an aerobic OSSF in a 12-month period; or(B) failing to properly submit maintenance reports required by §285.7(d) of this title for an individual homeowner in any consecutive 12-month period.(6) A maintenance technician's registration can be revoked for:(A) acting as, advertising, or otherwise portraying themselves as a maintenance provider, or performing duties and responsibilities of a maintenance provider without the direct supervision of, or direct communication with, the supervising maintenance provider; or(B) receiving compensation for OSSF maintenance from someone other than the supervising maintenance provider.</content><note type="source"><p>Source Note: The provisions of this §285.65 adopted to be effective August 3, 2006, 31 TexReg 6013; amended to be effective September 11, 2008, 33 TexReg 7536.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c285/scG"><num value="G">SUBCHAPTER G</num><heading>OSSF ENFORCEMENT</heading><section identifier="/us/state/tx/tac/t30/p1/c285/scG/s285.70"><num value="285.70">§285.70</num><heading>Duties of Owners With Malfunctioning OSSFs</heading><content>(a) If the executive director or the authorized agent determines that an on-site sewage facility (OSSF) is malfunctioning, as defined in §285.2 of this title (relating to Definitions), the owner shall bring the OSSF into compliance by repairing the malfunction. The owner shall initiate repair of a malfunctioning OSSF no later than:(1) the 30th day after the date which the owner is notified by the executive director or the authorized agent of the malfunctioning system, if the owner has not been notified of the malfunctioning system during the previous 12 months;(2) the 20th day after the date on which the owner is notified by the executive director or the authorized agent of the malfunctioning system, if the owner has been notified of the malfunctioning system at least once during the previous 12 months; or(3) the 10th day after the date on which the owner is notified by the executive director or the authorized agent of the malfunctioning system, if the owner has been notified of the malfunctioning system at least twice during the previous 12 months.(b) If aerobic treatment system maintenance is provided by the homeowner, as described in §285.7(d)(4) of this title (relating to Maintenance Requirements), an authorized agent or the commission may require the homeowner to contract for maintenance of the on-site sewage disposal system using aerobic treatment for a single-family residence if the system is located in a county of at least 40,000 persons and:(1) the authorized agent or commission determines that the owner has violated this chapter or a rule adopted or order or permit issued under this chapter and the owner fails to correct the violation no later than the 10th day after the date of receipt of notification by the permitting authority; or(2) the owner commits another violation before the third anniversary of the initial violation of this chapter or rule adopted under the Texas Health and Safety Code, Chapter 366.(c) If, under this section, an authorized agent or the commission requires the system's owner to contract for the maintenance of the system, the order, resolution, or rule may require the maintenance provider to:(1) inspect the system at specified intervals;(2) submit a report on each inspection to the authorized agent or commission; and(3) provide a copy of each report submitted to the system's owner.</content><note type="source"><p>Source Note: The provisions of this §285.70 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective August 3, 2006, 31 TexReg 6013; amended to be effective September 11, 2008, 33 TexReg 7536.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scG/s285.71"><num value="285.71">§285.71</num><heading>Authorized Agent Enforcement of OSSFs</heading><content>(a) Complaints. The authorized agent shall investigate a complaint regarding an on-site sewage facility (OSSF) within 30 days after receipt of the complaint, notify the complainant of the findings, and take appropriate and timely action on all documented violations. Appropriate action may include criminal or civil enforcement action as necessary under the authority of their order, ordinance, or resolution, the Texas Water Code, Chapters 7 and 26, or the Texas Health and Safety Code, Chapters 341 and 366. This may include complaints against:(1) registered apprentices, maintenance technicians, licensed installers, site evaluators, maintenance providers, and designated representatives;(2) individuals performing the duties listed above not holding a current commission license or registration or failing to maintain a license or registration, including professional engineers and professional sanitarians;(3) owners in violation of this chapter or the authorized agent's order, ordinance, or resolution; or(4) owners of malfunctioning OSSFs on the owners' property.(b) Conviction or court judgment under subsection (a)(1) and (2) of this section. Upon conviction or court judgment, the authorized agent shall send a copy of the conviction or court judgment to the executive director.(c) Referral of complaints under subsection (a)(1) and (2) of this section. If there are unusual circumstances involved, or if the authorized agent is unable to take enforcement action, the authorized agent may refer complaints to the executive director in writing at any time after a documented investigation of the complaint has been completed.</content><note type="source"><p>Source Note: The provisions of this §285.71 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective December 17, 2001, 26 TexReg 10363; amended to be effective August 3, 2006, 31 TexReg 6013; amended to be effective September 11, 2008, 33 TexReg 7536.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c285/scH"><num value="H">SUBCHAPTER H</num><heading>DISPOSAL OF GRAYWATER</heading><section identifier="/us/state/tx/tac/t30/p1/c285/scH/s285.80"><num value="285.80">§285.80</num><heading>General Requirements</heading><content>(a) For the purpose of this chapter, graywater is defined as wastewater from showers; bathtubs; handwashing lavatories; sinks that are used for disposal of household or domestic products; sinks that are not used for food preparation or disposal; and clothes-washing machines. Graywater does not include wastewater from the washing of material, including diapers, soiled with human excreta or wastewater that has come in contact with toilet waste.(b) Construction of a graywater reuse system, including storage and disposal systems, must comply with this chapter; Chapter 210, Subchapter F of this title (relating to Use of Graywater and Alternative Onsite Water); and any more stringent requirements of the local permitting authority. For the purposes of this subchapter, a graywater reuse system begins at the graywater stub-out of a single family dwelling.(c) A graywater reuse system must not create a nuisance or damage the quality of surface water or groundwater. If a graywater reuse system creates a nuisance, threatens human health, or damages the quality of surface water or groundwater, the permitting authority may take action under §285.71 of this title (relating to Authorized Agent Enforcement of OSSFs).(d) A graywater reuse system shall comply with the requirements of this subchapter as they existed on the date installation was completed. The previous version of this subchapter is continued in effect for this purpose. Any alterations to an existing system must comply with this chapter; Chapter 210, Subchapter F of this title; and any more stringent requirements of the local permitting authority.(e) No reduction in the size of the on-site sewage facility (OSSF) will be allowed when using a graywater reuse system unless the OSSF meets all of the conditions and requirements of §285.81 of this title (relating to Requirements and Conditions for Potentially Reducing the Size of an OSSF Disposal System for a Single Family Residence with a Graywater Reuse System or a Combined Reuse System).(f) If the OSSF is not a reduced OSSF as described in §285.81 of this title, the graywater from either a graywater reuse system or a combined reuse system authorized under Chapter 210, Subchapter F of this title may, be connected to the OSSF to dispose of the graywater during periods when graywater is not being reused. If the reuse system is a combined reuse system as defined under Chapter 210, Subchapter F of this title, the flows from alternative onsite water sources must be diverted and shall not be allowed to enter the OSSF. Alternative water reuse systems as defined in Chapter 210, Subchapter F of this title, shall not be connected to the OSSF as OSSFs are not authorized nor designed to treat or dispose of flows from alternative onsite water sources. The piping connecting the graywater to the OSSF shall meet the applicable requirements of Subchapter D of this chapter (relating to Planning, Construction, and Installation Standards for OSSFs).</content><note type="source"><p>Source Note: The provisions of this §285.80 adopted to be effective February 5, 1997, 22 TexReg 1114; amended to be effective June 13, 2001, 26 TexReg 4115; amended to be effective January 6, 2005, 29 TexReg 12204; amended to be effective December 29, 2016, 41 TexReg 10378.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scH/s285.81"><num value="285.81">§285.81</num><heading>Requirements and Conditions for Potentially Reducing the Size of an OSSF Disposal System for a Single Family Residence with a Graywater Reuse System or a Combined Reuse System</heading><content>(a) Graywater reuse systems and combined reuse systems are authorized in Chapter 210, Subchapter F of this title (relating to Use of Graywater and Alternative Onsite Water) without a permit, without the submission of planning materials, and without meeting the requirements and conditions of this section. However, a homeowner requesting an on-site sewage facility (OSSF) disposal system smaller than required in §285.33 of this title (relating to Criteria for Effluent Disposal Systems) must obtain a permit and meet the requirements and conditions of this section. Additionally, the potential reduction of the OSSF disposal system in this section only applies to single family residence with a graywater reuse or a combined reuse system. OSSF disposal systems for non-single family residences with a graywater reuse or a combined reuse system shall not have an OSSF disposal system reduction. (b) Effluent disposal system sizing. If the graywater reuse system or combined reuse system serving the single family residence is in compliance with Chapter 210, Subchapter F of this title, the effluent disposal system required in §285.33 of this title may be reduced in accordance with Table I in Figure: 30 TAC §285.81(b) of this section. Attached Graphic(c) Verification of plumbing entering the OSSF. A licensed master plumber shall evaluate and document, after the plumbing is installed, which sewage sources will be entering the OSSF. The documentation must be provided to the OSSF permitting authority.(d) Increased wastewater strength. When graywater is removed from the total sewage stream, the remaining sewage stream entering the OSSF will have a higher organic strength. The resulting increase in sewage strength shall be determined in accordance with Table II in Figure: 30 TAC §285.81(d) of this section.Attached Graphic(e) If the effluent disposal system does not require secondary treatment, either a professional sanitarian or a professional engineer shall demonstrate with effective treatment design and supporting calculations that the proposed treatment system will reduce the effluent quality down to 140 milligrams per liter five-day biochemical oxygen demand (mg/l BOD5 ) prior to entering the effluent disposal system.(f) If the effluent disposal system requires secondary treatment, then a professional engineer shall demonstrate with effective treatment design and supporting calculations that the effluent quality meets the levels outlined in §285.32(e) of this title (relating to Criteria for Sewage Treatment Systems). (g) If the effluent disposal system is reduced based on the presence of a graywater reuse system or a combined reuse system, a reserve area equivalent to the reduced area shall be shown to be available for future construction of a disposal field should the graywater reuse system or combined reuse system be abandoned at a later date. The reserve area shall meet the setbacks required by §285.91(10) of this title (relating to Tables) and shall not be used for any surface improvements.(h) Graywater or alternative onsite water, as defined in Chapter 210, Subchapter F of this title, shall not be applied to the surface of a reduced effluent disposal system.(i) The reduced effluent disposal system is not sized to accommodate graywater. Therefore, there shall not be any physical connection between the graywater reuse system or the combined reuse system and any part of the OSSF without authorization from the OSSF permitting authority.(j) In addition to the requirements outlined in Chapter 210, Subchapter F of this title, a graywater reuse system or a combined reuse system, used in association with a reduced effluent disposal system under this section, must have a storage tank capable of storing a volume of three days of graywater. The storage is necessary to prevent application of graywater during periods when the landscape is saturated.(k) Before a license to operate is issued for a reduced effluent disposal system allowed under this section, an affidavit shall be properly filed and recorded in the deed records of the county. The affidavit must include the owner's full name, the legal description of the property, a statement that the permit for the OSSF is transferred to the new owner upon transfer of the property, a statement that the effluent disposal system is reduced due to the presence of a graywater reuse system or a combined reuse system, a statement that the specified reserve area shall not contain surface improvements, and a statement that the graywater reuse system or combined reuse system cannot be connected to the OSSF without obtaining a permit from the OSSF permitting authority.(l) If the property owner of a graywater reuse system or a combined reuse system on a property served by a reduced effluent disposal system is convicted under or found in violation of any statute related to graywater or public health nuisance, and the system is not properly repaired in a timely manner, the OSSF permitting authority may require the graywater to be connected to the OSSF. If the OSSF permitting authority requires the graywater to be connected to the OSSF, the effluent disposal system must be expanded to accommodate all the flow required in §285.91(3) of this title, and the expansion must be permitted by the OSSF permitting authority.</content><note type="source"><p>Source Note: The provisions of this §285.81 adopted to be effective June 13, 2001, 26 TexReg 4115; amended to be effective January 6, 2005, 29 TexReg 12204; amended to be effective December 29, 2016, 41 TexReg 10378.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c285/scI"><num value="I">SUBCHAPTER I</num><heading>APPENDICES</heading><section identifier="/us/state/tx/tac/t30/p1/c285/scI/s285.90"><num value="285.90">§285.90</num><heading>Figures</heading><content>The following figures are necessary for the proper location, planning, construction, and installation of an on-site sewage facility (OSSF). (1) Figure 1. Maximum Application Rates for Surface Application of Treated Effluent in Texas. Attached Graphic(2) Figure 2. Model Affidavit to the Public. Attached Graphic(3) Figure 3. Sample Testing and Reporting Record. Attached Graphic(4) Figure 4. Typical Drainfields - Sectional View. Attached Graphic(5) Figure 5. Typical Drainfields. Attached Graphic(6) Figure 6. Two Compartment Septic Tank. Attached Graphic(7) Figure 7. Two Septic Tanks in Series. Attached Graphic(8) Figure 8. Intermittent Sand Filters. Attached Graphic(9) Figure 9. Intermittent Sand Filter Underdrain and Pumpwell. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §285.90 adopted to be effective February 5, 1997, 22 TexReg 1114; amended to be effective June 13, 2001, 26 TexReg 4115; amended to be effective August 3, 2006, 31 TexReg 6013; amended to be effective September 11, 2008, 33 TexReg 7536; amended to be effective December 27, 2012, 37 TexReg 9947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c285/scI/s285.91"><num value="285.91">§285.91</num><heading>Tables</heading><content>The following tables are necessary for the proper location, planning, construction, and installation of an on-site sewage facility (OSSF).(1) Table I. Effluent Loading Requirements Based on Soil Classification.Attached Graphic(2) Table II. Septic Tank and Aerobic Treatment Unit Sizing.Attached Graphic(3) Table III. Wastewater Usage Rate.Attached Graphic(4) Table IV. Required Testing and Reporting.Attached Graphic(5) Table V. Criteria for Standard Subsurface Absorption Systems.Attached Graphic(6) Table VI. USDA Soil Textural Classifications.Attached Graphic(7) Table VII. Yearly Average Net Evaporation (Evaporation-Rainfall). Attached Graphic(8) Table VIII. OSSF Excavation Length (3 Feet in Width or Less).Attached Graphic(9) Table IX. OSSF System Designation.Attached Graphic(10) Table X. Minimum Required Separation Distances for On-Site Sewage Facilities.Attached Graphic(11) Table XI. Intermittent Sand Filter Media Specifications (ASTM C-33).Attached Graphic(12) Table XII. OSSF Maintenance Contracts, Affidavit, and Testing/Reporting Requirements.Attached Graphic(13) Table XIII. Disposal and Treatment Selection Criteria. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §285.91 adopted to be effective February 5, 1997, 22 TexReg 1114; amended to be effective June 13, 2001, 26 TexReg 4115; amended to be effective December 17, 2001, 26 TexReg 10363; amended to be effective September 11, 2008, 33 TexReg 7536; amended to be effective December 27, 2012, 37 TexReg 9947; amended to be effective July 6, 2023, 48 TexReg 3508.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c288"><num value="288">CHAPTER 288</num><heading>WATER CONSERVATION PLANS, DROUGHT CONTINGENCY PLANS, GUIDELINES AND REQUIREMENTS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c288/scA"><num value="A">SUBCHAPTER A</num><heading>WATER CONSERVATION PLANS</heading><section identifier="/us/state/tx/tac/t30/p1/c288/scA/s288.1"><num value="288.1">§288.1</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Agricultural or Agriculture--Any of the following activities:(A) cultivating the soil to produce crops for human food, animal feed, or planting seed or for the production of fibers;(B) the practice of floriculture, viticulture, silviculture, and horticulture, including the cultivation of plants in containers or non-soil media by a nursery grower;(C) raising, feeding, or keeping animals for breeding purposes or for the production of food or fiber, leather, pelts, or other tangible products having a commercial value;(D) raising or keeping equine animals;(E) wildlife management; and(F) planting cover crops, including cover crops cultivated for transplantation, or leaving land idle for the purpose of participating in any governmental program or normal crop or livestock rotation procedure.(2) Agricultural use--Any use or activity involving agriculture, including irrigation.(3) Best management practices--Voluntary efficiency measures that save a quantifiable amount of water, either directly or indirectly, and that can be implemented within a specific time frame.(4) Conservation--Those practices, techniques, and technologies that reduce the consumption of water, reduce the loss or waste of water, improve the efficiency in the use of water, or increase the recycling and reuse of water so that a water supply is made available for future or alternative uses.(5) Commercial use--The use of water by a place of business, such as a hotel, restaurant, or office building. This does not include multi-family residences or agricultural, industrial, or institutional users.(6) Drought contingency plan--A strategy or combination of strategies for temporary supply and demand management responses to temporary and potentially recurring water supply shortages and other water supply emergencies. A drought contingency plan may be a separate document identified as such or may be contained within another water management document(s).(7) Industrial use--The use of water in processes designed to convert materials of a lower order of value into forms having greater usability and commercial value, and the development of power by means other than hydroelectric, but does not include agricultural use.(8) Institutional use--The use of water by an establishment dedicated to public service, such as a school, university, church, hospital, nursing home, prison, or government facility. All facilities dedicated to public service are considered institutional regardless of ownership.(9) Irrigation--The agricultural use of water for the irrigation of crops, trees, and pastureland, including, but not limited to, golf courses and parks which do not receive water from a public water supplier.(10) Irrigation water use efficiency--The percentage of that amount of irrigation water which is beneficially used by agriculture crops or other vegetation relative to the amount of water diverted from the source(s) of supply. Beneficial uses of water for irrigation purposes include, but are not limited to, evapotranspiration needs for vegetative maintenance and growth, salinity management, and leaching requirements associated with irrigation.(11) Mining use--The use of water for mining processes including hydraulic use, drilling, washing sand and gravel, and oil field re-pressuring.(12) Municipal use--The use of potable water provided by a public water supplier as well as the use of sewage effluent for residential, commercial, industrial, agricultural, institutional, and wholesale uses.(13) Nursery grower--A person engaged in the practice of floriculture, viticulture, silviculture, and horticulture, including the cultivation of plants in containers or nonsoil media, who grows more than 50% of the products that the person either sells or leases, regardless of the variety sold, leased, or grown. For the purpose of this definition, grow means the actual cultivation or propagation of the product beyond the mere holding or maintaining of the item prior to sale or lease, and typically includes activities associated with the production or multiplying of stock such as the development of new plants from cuttings, grafts, plugs, or seedlings.(14) Pollution--The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of, any water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property, or to the public health, safety, or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful or reasonable purpose.(15) Public water supplier--An individual or entity that supplies water to the public for human consumption.(16) Regional water planning group--A group established by the Texas Water Development Board to prepare a regional water plan under Texas Water Code, §16.053.(17) Residential gallons per capita per day--The total gallons sold for residential use by a public water supplier divided by the residential population served and then divided by the number of days in the year.(18) Residential use--The use of water that is billed to single and multi-family residences, which applies to indoor and outdoor uses.(19) Retail public water supplier--An individual or entity that for compensation supplies water to the public for human consumption. The term does not include an individual or entity that supplies water to itself or its employees or tenants when that water is not resold to or used by others.(20) Reuse--The authorized use for one or more beneficial purposes of use of water that remains unconsumed after the water is used for the original purpose of use and before that water is either disposed of or discharged or otherwise allowed to flow into a watercourse, lake, or other body of state-owned water.(21) Total use--The volume of raw or potable water provided by a public water supplier to billed customer sectors or nonrevenue uses and the volume lost during conveyance, treatment, or transmission of that water.(22) Total gallons per capita per day (GPCD)--The total amount of water diverted and/or pumped for potable use divided by the total permanent population divided by the days of the year. Diversion volumes of reuse as defined in this chapter shall be credited against total diversion volumes for the purposes of calculating GPCD for targets and goals.(23) Water conservation coordinator--The person designated by a retail public water supplier that is responsible for implementing a water conservation plan.(24) Water conservation plan--A strategy or combination of strategies for reducing the volume of water withdrawn from a water supply source, for reducing the loss or waste of water, for maintaining or improving the efficiency in the use of water, for increasing the recycling and reuse of water, and for preventing the pollution of water. A water conservation plan may be a separate document identified as such or may be contained within another water management document(s).(25) Wholesale public water supplier--An individual or entity that for compensation supplies water to another for resale to the public for human consumption. The term does not include an individual or entity that supplies water to itself or its employees or tenants as an incident of that employee service or tenancy when that water is not resold to or used by others, or an individual or entity that conveys water to another individual or entity, but does not own the right to the water which is conveyed, whether or not for a delivery fee.(26) Wholesale use--Water sold from one entity or public water supplier to other retail water purveyors for resale to individual customers.</content><note type="source"><p>Source Note: The provisions of this §288.1 adopted to be effective May 3, 1993, 18 TexReg 2558; amended to be effective February 21, 1999, 24 TexReg 949; amended to be effective April 27, 2000, 25 TexReg 3544; amended to be effective August 15, 2002, 27 TexReg 7146; amended to be effective October 7, 2004, 29 TexReg 9384; amended to be effective January 10, 2008, 33 TexReg 193; amended to be effective December 6, 2012, 37 TexReg 9515; amended to be effective August 16, 2018, 43 TexReg 5218.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c288/scA/s288.2"><num value="288.2">§288.2</num><heading>Water Conservation Plans for Municipal Uses by Public Water Suppliers</heading><content>(a) A water conservation plan for municipal water use by public water suppliers must provide information in response to the following. If the plan does not provide information for each requirement, the public water supplier shall include in the plan an explanation of why the requirement is not applicable.(1) Minimum requirements. All water conservation plans for municipal uses by public water suppliers must include the following elements:(A) a utility profile in accordance with the Texas Water Use Methodology, including, but not limited to, information regarding population and customer data, water use data (including total gallons per capita per day (GPCD) and residential GPCD), water supply system data, and wastewater system data;(B) a record management system which allows for the classification of water sales and uses into the most detailed level of water use data currently available to it, including, if possible, the sectors listed in clauses (i) - (vi) of this subparagraph. Any new billing system purchased by a public water supplier must be capable of reporting detailed water use data as described in clauses (i) - (vi) of this subparagraph:(i) residential;(I) single family;(II) multi-family;(ii) commercial;(iii) institutional;(iv) industrial;(v) agricultural; and,(vi) wholesale.(C) specific, quantified five-year and ten-year targets for water savings to include goals for water loss programs and goals for municipal use in total GPCD and residential GPCD. The goals established by a public water supplier under this subparagraph are not enforceable;(D) metering device(s), within an accuracy of plus or minus 5.0% in order to measure and account for the amount of water diverted from the source of supply;(E) a program for universal metering of both customer and public uses of water, for meter testing and repair, and for periodic meter replacement;(F) measures to determine and control water loss (for example, periodic visual inspections along distribution lines; annual or monthly audit of the water system to determine illegal connections; abandoned services; etc.);(G) a program of continuing public education and information regarding water conservation;(H) a water rate structure which is not "promotional," i.e., a rate structure which is cost-based and which does not encourage the excessive use of water;(I) a reservoir systems operations plan, if applicable, providing for the coordinated operation of reservoirs owned by the applicant within a common watershed or river basin in order to optimize available water supplies; and(J) a means of implementation and enforcement which shall be evidenced by:(i) a copy of the ordinance, resolution, or tariff indicating official adoption of the water conservation plan by the water supplier; and(ii) a description of the authority by which the water supplier will implement and enforce the conservation plan; and(K) documentation of coordination with the regional water planning groups for the service area of the public water supplier in order to ensure consistency with the appropriate approved regional water plans.(2) Additional content requirements. Water conservation plans for municipal uses by public drinking water suppliers serving a current population of 5,000 or more and/or a projected population of 5,000 or more within the next ten years subsequent to the effective date of the plan must include the following elements:(A) a program of leak detection, repair, and water loss accounting for the water transmission, delivery, and distribution system;(B) a requirement in every wholesale water supply contract entered into or renewed after official adoption of the plan (by either ordinance, resolution, or tariff), and including any contract extension, that each successive wholesale customer develop and implement a water conservation plan or water conservation measures using the applicable elements in this chapter. If the customer intends to resell the water, the contract between the initial supplier and customer must provide that the contract for the resale of the water must have water conservation requirements so that each successive customer in the resale of the water will be required to implement water conservation measures in accordance with the provisions of this chapter.(3) Additional conservation strategies. Any combination of the following strategies shall be selected by the water supplier, in addition to the minimum requirements in paragraphs (1) and (2) of this subsection, if they are necessary to achieve the stated water conservation goals of the plan. The commission may require that any of the following strategies be implemented by the water supplier if the commission determines that the strategy is necessary to achieve the goals of the water conservation plan:(A) conservation-oriented water rates and water rate structures such as uniform or increasing block rate schedules, and/or seasonal rates, but not flat rate or decreasing block rates;(B) adoption of ordinances, plumbing codes, and/or rules requiring water-conserving plumbing fixtures to be installed in new structures and existing structures undergoing substantial modification or addition;(C) a program for the replacement or retrofit of water-conserving plumbing fixtures in existing structures;(D) reuse and/or recycling of wastewater and/or graywater;(E) a program for pressure control and/or reduction in the distribution system and/or for customer connections;(F) a program and/or ordinance(s) for landscape water management;(G) a method for monitoring the effectiveness and efficiency of the water conservation plan; and(H) any other water conservation practice, method, or technique which the water supplier shows to be appropriate for achieving the stated goal or goals of the water conservation plan.(b) A water conservation plan prepared in accordance with 31 TAC §363.15 (relating to Required Water Conservation Plan) of the Texas Water Development Board and substantially meeting the requirements of this section and other applicable commission rules may be submitted to meet application requirements in accordance with a memorandum of understanding between the commission and the Texas Water Development Board.(c) A public water supplier for municipal use shall review and update its water conservation plan, as appropriate, based on an assessment of previous five-year and ten-year targets and any other new or updated information. The public water supplier for municipal use shall review and update the next revision of its water conservation plan every five years to coincide with the regional water planning group.</content><note type="source"><p>Source Note: The provisions of this §288.2 adopted to be effective May 3, 1993, 18 TexReg 2558; amended to be effective February 21, 1999, 24 TexReg 949; amended to be effective April 27, 2000, 25 TexReg 3544; amended to be effective October 7, 2004, 29 TexReg 9384; amended to be effective December 6, 2012, 37 TexReg 9515.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c288/scA/s288.3"><num value="288.3">§288.3</num><heading>Water Conservation Plans for Industrial or Mining Use</heading><content>(a) A water conservation plan for industrial or mining uses of water must provide information in response to each of the following elements. If the plan does not provide information for each requirement, the industrial or mining water user shall include in the plan an explanation of why the requirement is not applicable.(1) a description of the use of the water in the production process, including how the water is diverted and transported from the source(s) of supply, how the water is utilized in the production process, and the estimated quantity of water consumed in the production process and therefore unavailable for reuse, discharge, or other means of disposal;(2) specific, quantified five-year and ten-year targets for water savings and the basis for the development of such goals. The goals established by industrial or mining water users under this paragraph are not enforceable;(3) a description of the device(s) and/or method(s) within an accuracy of plus or minus 5.0% to be used in order to measure and account for the amount of water diverted from the source of supply;(4) leak-detection, repair, and accounting for water loss in the water distribution system;(5) application of state-of-the-art equipment and/or process modifications to improve water use efficiency; and(6) any other water conservation practice, method, or technique which the user shows to be appropriate for achieving the stated goal or goals of the water conservation plan.(b) An industrial or mining water user shall review and update its water conservation plan, as appropriate, based on an assessment of previous five-year and ten-year targets and any other new or updated information. The industrial or mining water user shall review and update the next revision of its water conservation plan every five years to coincide with the regional water planning group.</content><note type="source"><p>Source Note: The provisions of this §288.3 adopted to be effective May 3, 1993, 18 TexReg 2558; amended to be effective April 27, 2000, 25 TexReg 3544; amended to be effective October 7, 2004, 29 TexReg 9384; amended to be effective December 6, 2012, 37 TexReg 9515.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c288/scA/s288.4"><num value="288.4">§288.4</num><heading>Water Conservation Plans for Agricultural Use</heading><content>(a) A water conservation plan for agricultural use of water must provide information in response to the following subsections. If the plan does not provide information for each requirement, the agricultural water user must include in the plan an explanation of why the requirement is not applicable.(1) For an individual agricultural user other than irrigation:(A) a description of the use of the water in the production process, including how the water is diverted and transported from the source(s) of supply, how the water is utilized in the production process, and the estimated quantity of water consumed in the production process and therefore unavailable for reuse, discharge, or other means of disposal;(B) specific, quantified five-year and ten-year targets for water savings and the basis for the development of such goals. The goals established by agricultural water users under this subparagraph are not enforceable;(C) a description of the device(s) and/or method(s) within an accuracy of plus or minus 5.0% to be used in order to measure and account for the amount of water diverted from the source of supply;(D) leak-detection, repair, and accounting for water loss in the water distribution system;(E) application of state-of-the-art equipment and/or process modifications to improve water use efficiency; and(F) any other water conservation practice, method, or technique which the user shows to be appropriate for achieving the stated goal or goals of the water conservation plan.(2) For an individual irrigation user:(A) a description of the irrigation production process which shall include, but is not limited to, the type of crops and acreage of each crop to be irrigated, monthly irrigation diversions, any seasonal or annual crop rotation, and soil types of the land to be irrigated;(B) a description of the irrigation method, or system, and equipment including pumps, flow rates, plans, and/or sketches of the system layout;(C) a description of the device(s) and/or methods, within an accuracy of plus or minus 5.0%, to be used in order to measure and account for the amount of water diverted from the source of supply;(D) specific, quantified five-year and ten-year targets for water savings including, where appropriate, quantitative goals for irrigation water use efficiency and a pollution abatement and prevention plan. The goals established by an individual irrigation water user under this subparagraph are not enforceable;(E) water-conserving irrigation equipment and application system or method including, but not limited to, surge irrigation, low pressure sprinkler, drip irrigation, and nonleaking pipe;(F) leak-detection, repair, and water-loss control;(G) scheduling the timing and/or measuring the amount of water applied (for example, soil moisture monitoring);(H) land improvements for retaining or reducing runoff, and increasing the infiltration of rain and irrigation water including, but not limited to, land leveling, furrow diking, terracing, and weed control;(I) tailwater recovery and reuse; and(J) any other water conservation practice, method, or technique which the user shows to be appropriate for preventing waste and achieving conservation.(3) For a system providing agricultural water to more than one user:(A) a system inventory for the supplier's:(i) structural facilities including the supplier's water storage, conveyance, and delivery structures;(ii) management practices, including the supplier's operating rules and regulations, water pricing policy, and a description of practices and/or devices used to account for water deliveries; and(iii) a user profile including square miles of the service area, the number of customers taking delivery of water by the system, the types of crops, the types of irrigation systems, the types of drainage systems, and total acreage under irrigation, both historical and projected;(B) specific, quantified five-year and ten-year targets for water savings including maximum allowable losses for the storage and distribution system. The goals established by a system providing agricultural water to more than one user under this subparagraph are not enforceable;(C) a description of the practice(s) and/or device(s) which will be utilized to measure and account for the amount of water diverted from the source(s) of supply;(D) a monitoring and record management program of water deliveries, sales, and losses;(E) a leak-detection, repair, and water loss control program;(F) a program to assist customers in the development of on-farm water conservation and pollution prevention plans and/or measures;(G) a requirement in every wholesale water supply contract entered into or renewed after official adoption of the plan (by either ordinance, resolution, or tariff), and including any contract extension, that each successive wholesale customer develop and implement a water conservation plan or water conservation measures using the applicable elements in this chapter. If the customer intends to resell the water, the contract between the initial supplier and customer must provide that the contract for the resale of the water must have water conservation requirements so that each successive customer in the resale of the water will be required to implement water conservation measures in accordance with applicable provisions of this chapter;(H) official adoption of the water conservation plan and goals, by ordinance, rule, resolution, or tariff, indicating that the plan reflects official policy of the supplier;(I) any other water conservation practice, method, or technique which the supplier shows to be appropriate for achieving conservation; and(J) documentation of coordination with the regional water planning groups, in order to ensure consistency with appropriate approved regional water plans.(b) A water conservation plan prepared in accordance with the rules of the United States Department of Agriculture Natural Resource Conservation Service, the Texas State Soil and Water Conservation Board, or other federal or state agency and substantially meeting the requirements of this section and other applicable commission rules may be submitted to meet application requirements in accordance with a memorandum of understanding between the commission and that agency.(c) An agricultural water user shall review and update its water conservation plan, as appropriate, based on an assessment of previous five-year and ten-year targets and any other new or updated information. An agricultural water user shall review and update the next revision of its water conservation plan every five years to coincide with the regional water planning group.</content><note type="source"><p>Source Note: The provisions of this §288.4 adopted to be effective May 3, 1993, 18 TexReg 2558; amended to be effective February 21, 1999, 24 TexReg 949; amended to be effective April 27, 2000, 25 TexReg 3544; amended to be effective August 15, 2002, 27 TexReg 7146; amended to be effective October 7, 2004, 29 TexReg 9384; amended to be effective December 6, 2012, 37 TexReg 9515.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c288/scA/s288.5"><num value="288.5">§288.5</num><heading>Water Conservation Plans for Wholesale Water Suppliers</heading><content>A water conservation plan for a wholesale water supplier must provide information in response to each of the following paragraphs. If the plan does not provide information for each requirement, the wholesale water supplier shall include in the plan an explanation of why the requirement is not applicable.(1) Minimum requirements. All water conservation plans for wholesale water suppliers must include the following elements:(A) a description of the wholesaler's service area, including population and customer data, water use data, water supply system data, and wastewater data;(B) specific, quantified five-year and ten-year targets for water savings including, where appropriate, target goals for municipal use in gallons per capita per day for the wholesaler's service area, maximum acceptable water loss, and the basis for the development of these goals. The goals established by wholesale water suppliers under this subparagraph are not enforceable;(C) a description as to which practice(s) and/or device(s) will be utilized to measure and account for the amount of water diverted from the source(s) of supply;(D) a monitoring and record management program for determining water deliveries, sales, and losses;(E) a program of metering and leak detection and repair for the wholesaler's water storage, delivery, and distribution system;(F) a requirement in every water supply contract entered into or renewed after official adoption of the water conservation plan, and including any contract extension, that each successive wholesale customer develop and implement a water conservation plan or water conservation measures using the applicable elements of this chapter. If the customer intends to resell the water, then the contract between the initial supplier and customer must provide that the contract for the resale of the water must have water conservation requirements so that each successive customer in the resale of the water will be required to implement water conservation measures in accordance with applicable provisions of this chapter;(G) a reservoir systems operations plan, if applicable, providing for the coordinated operation of reservoirs owned by the applicant within a common watershed or river basin. The reservoir systems operations plans shall include optimization of water supplies as one of the significant goals of the plan;(H) a means for implementation and enforcement, which shall be evidenced by a copy of the ordinance, rule, resolution, or tariff, indicating official adoption of the water conservation plan by the water supplier; and a description of the authority by which the water supplier will implement and enforce the conservation plan; and(I) documentation of coordination with the regional water planning groups for the service area of the wholesale water supplier in order to ensure consistency with the appropriate approved regional water plans.(2) Additional conservation strategies. Any combination of the following strategies shall be selected by the water wholesaler, in addition to the minimum requirements of paragraph (1) of this section, if they are necessary in order to achieve the stated water conservation goals of the plan. The commission may require by commission order that any of the following strategies be implemented by the water supplier if the commission determines that the strategies are necessary in order for the conservation plan to be achieved:(A) conservation-oriented water rates and water rate structures such as uniform or increasing block rate schedules, and/or seasonal rates, but not flat rate or decreasing block rates;(B) a program to assist agricultural customers in the development of conservation pollution prevention and abatement plans;(C) a program for reuse and/or recycling of wastewater and/or graywater; and(D) any other water conservation practice, method, or technique which the wholesaler shows to be appropriate for achieving the stated goal or goals of the water conservation plan.(3) Review and update requirements. The wholesale water supplier shall review and update its water conservation plan, as appropriate, based on an assessment of previous five-year and ten-year targets and any other new or updated information. A wholesale water supplier shall review and update the next revision of its water conservation plan every five years to coincide with the regional water planning group.</content><note type="source"><p>Source Note: The provisions of this §288.5 adopted to be effective May 3, 1993, 18 TexReg 2558; amended to be effective February 21, 1999, 24 TexReg 949; amended to be effective April 27, 2000, 25 TexReg 3544; amended to be effective October 7, 2004, 29 TexReg 9384; amended to be effective December 6, 2012, 37 TexReg 9515.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c288/scA/s288.6"><num value="288.6">§288.6</num><heading>Water Conservation Plans for Any Other Purpose or Use</heading><content>A water conservation plan for any other purpose or use not covered in this subchapter shall provide information where applicable about those practices, techniques, and technologies that will be used to reduce the consumption of water, prevent or reduce the loss or waste of water, maintain or improve the efficiency in the use of water, increase the recycling and reuse of water, or prevent the pollution of water.</content><note type="source"><p>Source Note: The provisions of this §288.6 adopted to be effective May 3, 1993, 18 TexReg 2558; amended to be effective April 27, 2000, 25 TexReg 3544.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c288/scA/s288.7"><num value="288.7">§288.7</num><heading>Plans Submitted with a Water Right Application for New or Additional State Water</heading><content>(a) A water conservation plan submitted with an application for a new or additional appropriation of water must include data and information which:(1) supports the applicant's proposed use of water with consideration of the water conservation goals of the water conservation plan;(2) evaluates conservation as an alternative to the proposed appropriation; and(3) evaluates any other feasible alternative to new water development including, but not limited to, waste prevention, recycling and reuse, water transfer and marketing, regionalization, and optimum water management practices and procedures.(b) It shall be the burden of proof of the applicant to demonstrate that no feasible alternative to the proposed appropriation exists and that the requested amount of appropriation is necessary and reasonable for the proposed use.</content><note type="source"><p>Source Note: The provisions of this §288.7 adopted to be effective May 3, 1993, 18 TexReg 2558.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c288/scB"><num value="B">SUBCHAPTER B</num><heading>DROUGHT CONTINGENCY PLANS</heading><section identifier="/us/state/tx/tac/t30/p1/c288/scB/s288.20"><num value="288.20">§288.20</num><heading>Drought Contingency Plans for Municipal Uses by Public Water Suppliers</heading><content>(a) A drought contingency plan for a retail public water supplier, where applicable, must include the following minimum elements.(1) Minimum requirements. Drought contingency plans must include the following minimum elements.(A) Preparation of the plan shall include provisions to actively inform the public and affirmatively provide opportunity for public input. Such acts may include, but are not limited to, having a public meeting at a time and location convenient to the public and providing written notice to the public concerning the proposed plan and meeting.(B) Provisions shall be made for a program of continuing public education and information regarding the drought contingency plan.(C) The drought contingency plan must document coordination with the regional water planning groups for the service area of the retail public water supplier to ensure consistency with the appropriate approved regional water plans.(D) The drought contingency plan must include a description of the information to be monitored by the water supplier, and specific criteria for the initiation and termination of drought response stages, accompanied by an explanation of the rationale or basis for such triggering criteria.(E) The drought contingency plan must include drought or emergency response stages providing for the implementation of measures in response to at least the following situations:(i) reduction in available water supply up to a repeat of the drought of record;(ii) water production or distribution system limitations;(iii) supply source contamination; or(iv) system outage due to the failure or damage of major water system components (e.g., pumps).(F) The drought contingency plan must include specific, quantified targets for water use reductions to be achieved during periods of water shortage and drought. The entity preparing the plan shall establish the targets. The goals established by the entity under this subparagraph are not enforceable.(G) The drought contingency plan must include the specific water supply or water demand management measures to be implemented during each stage of the plan including, but not limited to, the following:(i) curtailment of non-essential water uses; and(ii) utilization of alternative water sources and/or alternative delivery mechanisms with the prior approval of the executive director as appropriate (e.g., interconnection with another water system, temporary use of a non-municipal water supply, use of reclaimed water for non-potable purposes, etc.).(H) The drought contingency plan must include the procedures to be followed for the initiation or termination of each drought response stage, including procedures for notification of the public.(I) The drought contingency plan must include procedures for granting variances to the plan.(J) The drought contingency plan must include procedures for the enforcement of mandatory water use restrictions, including specification of penalties (e.g., fines, water rate surcharges, discontinuation of service) for violations of such restrictions.(2) Privately-owned water utilities. Privately-owned water utilities shall prepare a drought contingency plan in accordance with this section and incorporate such plan into their tariff.(3) Wholesale water customers. Any water supplier that receives all or a portion of its water supply from another water supplier shall consult with that supplier and shall include in the drought contingency plan appropriate provisions for responding to reductions in that water supply.(b) A wholesale or retail water supplier shall notify the executive director within five business days of the implementation of any mandatory provisions of the drought contingency plan.(c) The retail public water supplier shall review and update, as appropriate, the drought contingency plan, at least every five years, based on new or updated information, such as the adoption or revision of the regional water plan.</content><note type="source"><p>Source Note: The provisions of this §288.20 adopted to be effective February 21, 1999, 24 TexReg 949; amended to be effective April 27, 2000, 25 TexReg 3544; amended to be effective October 7, 2004, 29 TexReg 9384.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c288/scB/s288.21"><num value="288.21">§288.21</num><heading>Drought Contingency Plans for Irrigation Use</heading><content>(a) A drought contingency plan for an irrigation use, where applicable, must include the following minimum elements.(1) Minimum requirements. Drought contingency plans for irrigation water suppliers must include policies and procedures for the equitable and efficient allocation of water on a pro rata basis during times of shortage in accordance with Texas Water Code, §11.039. Such plans shall include the following elements as a minimum.(A) Preparation of the plan shall include provisions to actively inform and to affirmatively provide opportunity for users of water from the irrigation system to provide input into the preparation of the plan and to remain informed of the plan. Such acts may include, but are not limited to, having a public meeting at a time and location convenient to the water users and providing written notice to the water users concerning the proposed plan and meeting.(B) The drought contingency plan must document coordination with the regional water planning groups to ensure consistency with the appropriate approved regional water plans.(C) The drought contingency plan must include water supply criteria and other considerations for determining when to initiate or terminate water allocation procedures, accompanied by an explanation of the rationale or basis for such triggering criteria.(D) The drought contingency plan must include specific, quantified targets for water use reductions to be achieved during periods of water shortage and drought. The entity preparing the plan shall establish the targets. The goals established by the entity under this subparagraph are not enforceable.(E) The drought contingency plan must include methods for determining the allocation of irrigation supplies to individual users.(F) The drought contingency plan must include a description of the information to be monitored by the water supplier and the procedures to be followed for the initiation or termination of water allocation policies.(G) The drought contingency plan must include procedures for use accounting during the implementation of water allocation policies.(H) The drought contingency plan must include policies and procedures, if any, for the transfer of water allocations among individual users within the water supply system or to users outside the water supply system.(I) The drought contingency plan must include procedures for the enforcement of water allocation policies, including specification of penalties for violations of such policies and for wasteful or excessive use of water.(2) Wholesale water customers. Any irrigation water supplier that receives all or a portion of its water supply from another water supplier shall consult with that supplier and shall include in the drought contingency plan, appropriate provisions for responding to reductions in that water supply.(3) Protection of public water supplies. Any irrigation water supplier that also provides or delivers water to a public water supplier(s) shall consult with that public water supplier(s) and shall include in the plan, mutually agreeable and appropriate provisions to ensure an uninterrupted supply of water necessary for essential uses relating to public health and safety. Nothing in this provision shall be construed as requiring the irrigation water supplier to transfer irrigation water supplies to non-irrigation use on a compulsory basis or without just compensation.(b) Irrigation water users shall review and update, as appropriate, the drought contingency plan, at least every five years, based on new or updated information, such as adoption or revision of the regional water plan.</content><note type="source"><p>Source Note: The provisions of this §288.21 adopted to be effective February 21, 1999, 24 TexReg 949; amended to be effective April 27, 2000, 25 TexReg 3544; amended to be effective October 7, 2004, 29 TexReg 9384.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c288/scB/s288.22"><num value="288.22">§288.22</num><heading>Drought Contingency Plans for Wholesale Water Suppliers</heading><content>(a) A drought contingency plan for a wholesale water supplier must include the following minimum elements.(1) Preparation of the plan shall include provisions to actively inform the public and to affirmatively provide opportunity for user input in the preparation of the plan and for informing wholesale customers about the plan. Such acts may include, but are not limited to, having a public meeting at a time and location convenient to the public and providing written notice to the public concerning the proposed plan and meeting.(2) The drought contingency plan must document coordination with the regional water planning groups for the service area of the wholesale public water supplier to ensure consistency with the appropriate approved regional water plans.(3) The drought contingency plan must include a description of the information to be monitored by the water supplier and specific criteria for the initiation and termination of drought response stages, accompanied by an explanation of the rationale or basis for such triggering criteria.(4) The drought contingency plan must include a minimum of three drought or emergency response stages providing for the implementation of measures in response to water supply conditions during a repeat of the drought-of-record.(5) The drought contingency plan must include the procedures to be followed for the initiation or termination of drought response stages, including procedures for notification of wholesale customers regarding the initiation or termination of drought response stages.(6) The drought contingency plan must include specific, quantified targets for water use reductions to be achieved during periods of water shortage and drought. The entity preparing the plan shall establish the targets. The goals established by the entity under this paragraph are not enforceable.(7) The drought contingency plan must include the specific water supply or water demand management measures to be implemented during each stage of the plan including, but not limited to, the following:(A) pro rata curtailment of water deliveries to or diversions by wholesale water customers as provided in Texas Water Code, §11.039; and(B) utilization of alternative water sources with the prior approval of the executive director as appropriate (e.g., interconnection with another water system, temporary use of a non-municipal water supply, use of reclaimed water for non-potable purposes, etc.).(8) The drought contingency plan must include a provision in every wholesale water contract entered into or renewed after adoption of the plan, including contract extensions, that in case of a shortage of water resulting from drought, the water to be distributed shall be divided in accordance with Texas Water Code, §11.039.(9) The drought contingency plan must include procedures for granting variances to the plan.(10) The drought contingency plan must include procedures for the enforcement of any mandatory water use restrictions including specification of penalties (e.g., liquidated damages, water rate surcharges, discontinuation of service) for violations of such restrictions.(b) The wholesale public water supplier shall notify the executive director within five business days of the implementation of any mandatory provisions of the drought contingency plan.(c) The wholesale public water supplier shall review and update, as appropriate, the drought contingency plan, at least every five years, based on new or updated information, such as adoption or revision of the regional water plan.</content><note type="source"><p>Source Note: The provisions of this §288.22 adopted to be effective February 21, 1999, 24 TexReg 949; amended to be effective April 27, 2000, 25 TexReg 3544; amended to be effective October 7, 2004, 29 TexReg 9384.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c288/scC"><num value="C">SUBCHAPTER C</num><heading>REQUIRED SUBMITTALS</heading><section identifier="/us/state/tx/tac/t30/p1/c288/scC/s288.30"><num value="288.30">§288.30</num><heading>Required Submittals</heading><content>In addition to the water conservation and drought contingency plans required to be submitted with an application under §295.9 of this title (relating to Water Conservation and Drought Contingency Plans), water conservation and drought contingency plans are required as follows.(1) Water conservation plans for municipal, industrial, and other non-irrigation uses. The holder of an existing permit, certified filing, or certificate of adjudication for the appropriation of surface water in the amount of 1,000 acre-feet a year or more for municipal, industrial, and other non-irrigation uses shall develop, submit, and implement a water conservation plan meeting the requirements of Subchapter A of this chapter (relating to Water Conservation Plans). The water conservation plan must be submitted to the executive director not later than May 1, 2005. Thereafter, the next revision of the water conservation plan for municipal, industrial, and other non-irrigation uses must be submitted not later than May 1, 2009, and every five years after that date to coincide with the regional water planning group. Any revised plans must be submitted to the executive director within 90 days of adoption. The revised plans must include implementation reports. The requirement for a water conservation plan under this section must not result in the need for an amendment to an existing permit, certified filing, or certificate of adjudication.(2) Implementation report for municipal, industrial, and other non-irrigation uses. The implementation report must include:(A) the list of dates and descriptions of the conservation measures implemented;(B) data about whether or not targets in the plans are being met;(C) the actual amount of water saved; and(D) if the targets are not being met, an explanation as to why any of the targets are not being met, including any progress on that particular target.(3) Water conservation plans for irrigation uses. The holder of an existing permit, certified filing, or certificate of adjudication for the appropriation of surface water in the amount of 10,000 acre-feet a year or more for irrigation uses shall develop, submit, and implement a water conservation plan meeting the requirements of Subchapter A of this chapter. The water conservation plan must be submitted to the executive director not later than May 1, 2005. Thereafter, the next revision of the water conservation plan for irrigation uses must be submitted not later than May 1, 2009, and every five years after that date to coincide with the regional water planning group. Any revised plans must be submitted to the executive director within 90 days of adoption. The revised plans must include implementation reports. The requirement for a water conservation plan under this section must not result in the need for an amendment to an existing permit, certified filing, or certificate of adjudication.(4) Implementation report for irrigation uses. The implementation report must include:(A) the list of dates and descriptions of the conservation measures implemented;(B) data about whether or not targets in the plans are being met;(C) the actual amount of water saved; and(D) if the targets are not being met, an explanation as to why any of the targets are not being met, including any progress on that particular target.(5) Drought contingency plans for retail public water suppliers. Retail public water suppliers shall submit a drought contingency plan meeting the requirements of Subchapter B of this chapter (relating to Drought Contingency Plans) to the executive director after adoption by its governing body. The retail public water system shall provide a copy of the plan to the regional water planning group for each region within which the water system operates. These drought contingency plans must be submitted as follows.(A) For retail public water suppliers providing water service to 3,300 or more connections, the drought contingency plan must be submitted to the executive director not later than May 1, 2005. Thereafter, the retail public water suppliers providing water service to 3,300 or more connections shall submit the next revision of the plan not later than May 1, 2009, and every five years after that date to coincide with the regional water planning group. Any revised plans must be submitted to the executive director within 90 days of adoption by the community water system. Any new retail public water suppliers providing water service to 3,300 or more connections shall prepare and adopt a drought contingency plan within 180 days of commencement of operation, and submit the plan to the executive director within 90 days of adoption.(B) For all the retail public water suppliers, the drought contingency plan must be prepared and adopted not later than May 1, 2005, and must be available for inspection by the executive director upon request. Thereafter, the retail public water suppliers shall prepare and adopt the next revision of the plan not later than May 1, 2009, and every five years after that date to coincide with the regional water planning group. Any new retail public water supplier providing water service to less than 3,300 connections shall prepare and adopt a drought contingency plan within 180 days of commencement of operation, and shall make the plan available for inspection by the executive director upon request.(6) Drought contingency plans for wholesale public water suppliers. Wholesale public water suppliers shall submit a drought contingency plan meeting the requirements of Subchapter B of this chapter to the executive director not later than May 1, 2005, after adoption of the drought contingency plan by the governing body of the water supplier. Thereafter, the wholesale public water suppliers shall submit the next revision of the plan not later than May 1, 2009, and every five years after that date to coincide with the regional water planning group. Any new or revised plans must be submitted to the executive director within 90 days of adoption by the governing body of the wholesale public water supplier. Wholesale public water suppliers shall also provide a copy of the drought contingency plan to the regional water planning group for each region within which the wholesale water supplier operates.(7) Drought contingency plans for irrigation districts. Irrigation districts shall submit a drought contingency plan meeting the requirements of Subchapter B of this chapter to the executive director not later than May 1, 2005, after adoption by the governing body of the irrigation district. Thereafter, the irrigation districts shall submit the next revision of the plan not later than May 1, 2009, and every five years after that date to coincide with the regional water planning group. Any new or revised plans must be submitted to the executive director within 90 days of adoption by the governing body of the irrigation district. Irrigation districts shall also provide a copy of the plan to the regional water planning group for each region within which the irrigation district operates.(8) Additional submissions with a water right application for state water. A water conservation plan or drought contingency plan required to be submitted with an application in accordance with §295.9 of this title must also be subject to review and approval by the commission.(9) Existing permits. The holder of an existing permit, certified filing, or certificate of adjudication shall not be subject to enforcement actions nor shall the permit, certified filing, or certificate of adjudication be subject to cancellation, either in part or in whole, based on the nonattainment of goals contained within a water conservation plan submitted with an application in accordance with §295.9 of this title or by the holder of an existing permit, certified filing, or certificate of adjudication in accordance with the requirements of this section.(10) Submissions to the executive administrator of the Texas Water Development Board.(A) Water conservation plans for retail public water suppliers. For retail public water suppliers providing water service to 3,300 or more connections, a water conservation plan meeting the minimum requirements of Subchapter A of this chapter and using appropriate best management practices must be developed, implemented, and submitted to the executive administrator of the Texas Water Development Board not later than May 1, 2009, and every five years after that date to coincide with the regional water planning group. Any revised plans must be submitted to the executive administrator within 90 days of adoption by the community water system. Any new retail public water suppliers providing water service to 3,300 or more connections shall prepare and adopt a water conservation plan within 180 days of commencement of operation, and submit the plan to the executive administrator of the Texas Water Development Board within 90 days of adoption.(B) Water conservation coordinators for retail public water suppliers. Retail public water suppliers that provide potable water to 3,300 or more connections shall designate a person as the water conservation coordinator responsible for implementing the water conservation plan; and identify, in writing, the water conservation coordinator, including the contact information for that person, to the executive administrator of the Texas Water Development Board. Notification of the initial designated water conservation coordinator shall be provided as specified by the Texas Water Development Board and any changes to the water conservation coordinator shall be provided within 90 days of the effective date of the change.(C) Water conservation plans. Each entity that is required to submit a water conservation plan to the commission shall submit a copy of the plan to the executive administrator of the Texas Water Development Board not later than May 1, 2009, and every five years after that date to coincide with the regional water planning group.(D) Annual reports. Each entity that is required to submit a water conservation plan to the Texas Water Development Board or the commission, shall file a report not later than May 1, 2010, and annually thereafter to the executive administrator of the Texas Water Development Board on the entity's progress in implementing the plan.(E) Violations of the Texas Water Development Board's rules. The water conservation plans and annual reports shall comply with the minimum requirements established in the Texas Water Development Board's rules. The Texas Water Development Board shall notify the commission if the Texas Water Development Board determines that an entity has not complied with the Texas Water Development Board rules relating to the minimum requirements for water conservation plans or submission of plans or annual reports. The commission shall take appropriate enforcement action upon receipt of notice from the Texas Water Development Board.</content><note type="source"><p>Source Note: The provisions of this §288.30 adopted to be effective February 21, 1999, 24 TexReg 949; amended to be effective April 27, 2000, 25 TexReg 3544; amended to be effective October 7, 2004, 29 TexReg 9384; amended to be effective January 10, 2008, 33 TexReg 193; amended to be effective August 16, 2018, 43 TexReg 5218.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c290"><num value="290">CHAPTER 290</num><heading>PUBLIC DRINKING WATER</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c290/scD"><num value="D">SUBCHAPTER D</num><heading>RULES AND REGULATIONS FOR PUBLIC WATER SYSTEMS</heading><section identifier="/us/state/tx/tac/t30/p1/c290/scD/s290.38"><num value="290.38">§290.38</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise. If a word or term used in this chapter is not contained in the following list, its definition shall be as shown in 40 Code of Federal Regulations (CFR) §141.2. Other technical terms used shall have the meanings or definitions listed in the latest edition of The Water Dictionary: A Comprehensive Reference of Water Terminology, prepared by the American Water Works Association. (1) Accredited laboratory - A laboratory accredited by the executive director to analyze drinking water samples to determine compliance with maximum contaminant levels, action levels, and microbial contaminants in accordance with §290.119 of this title (relating to Analytical Procedures). (2) Adverse Weather Conditions - Any significant temperature, wind velocity, accumulation of precipitation including drought, or other weather pattern that may trigger the issuance of a national weather service watch, advisory, or warning. (3) Affected utility - (A) A retail public utility (§291.3 of this title (relating to Definitions of Terms)), exempt utility (§291.103 of this title (relating to Certificates Not Required)), or provider or conveyor of potable or raw water service that furnishes water service to more than one customer is an affected utility as defined in TWC §13.1394; or (B) A retail public utility (§291.3 of this title (relating to Definitions of Terms)), exempt utility (§291.103 of this title (relating to Certificates Not Required)), or provider or conveyor of potable or raw water service that furnishes water service to more than one customer is an affected utility, as defined in TWC §13.1395, in a county with a population of: (i) 3.3 million or more; or (ii) 800,000 or more adjacent to a county with a population of 3.3 million or more. (4) Air gap--The unobstructed vertical distance through the free atmosphere between the lowest opening from any pipe or faucet conveying water to a tank, fixture, receptor, sink, or other assembly and the flood level rim of the receptacle. The vertical, physical separation must be at least twice the diameter of the water supply outlet, but never less than 1.0 inch. (5) American National Standards Institute (ANSI) standards--The standards of the American National Standards Institute, Inc. (6) American Society of Mechanical Engineers (ASME) standards--The standards of the ASME. (7) American Water Works Association (AWWA) standards--The latest edition of the applicable standards as approved and published by the AWWA. (8) Approved laboratory--A laboratory approved by the executive director to analyze water samples to determine their compliance with treatment technique requirements and maximum or minimum allowable constituent levels in accordance with §290.119 of this title (relating to Analytical Procedures). (9) ASTM International standards--The standards of ASTM International (formerly known as the American Society for Testing and Materials). (10) Auxiliary power--Either mechanical power or electric generators which can enable the system to provide water under pressure to the distribution system in the event of a local power failure. With the approval of the executive director, dual primary electric service may be considered as auxiliary power in areas which are not subject to large scale power outages due to natural disasters. (11) Bag filter--Pressure-driven separation device that removes particulate matter larger than 1 micrometer using an engineered porous filtration media. They are typically constructed of a non-rigid, fabric filtration media housed in a pressure vessel in which the direction of flow is from the inside of the bag to the outside. (12) Baseline performance--In reference to a membrane treatment facility, the detailed assessment of observed operational conditions at the time the membrane facility is placed in service for the purpose of tracking changes over time and determining when maintenance or service is required. Examples of parameters where baseline performance data is collected include: net driving pressure, normalized permeate flow, salt rejection, and salt passage. (13) Cartridge filter--Pressure-driven separation device that removes particulate matter larger than 1 micrometer using an engineered porous filtration media. They are typically constructed as rigid or semi-rigid, self-supporting filter elements housed in pressure vessels in which flow is from the outside of the cartridge to the inside. (14) Certified laboratory--A laboratory certified by the commission to analyze water samples to determine their compliance with maximum allowable constituent levels. After June 30, 2008, laboratories must be accredited, not certified, in order to perform sample analyses previously performed by certified laboratories. (15) Challenge test--A study conducted to determine the removal efficiency (log removal value) of a device for a particular organism, particulate, or surrogate. (16) Chemical disinfectant--Any oxidant, including but not limited to chlorine, chlorine dioxide, chloramines, and ozone added to the water in any part of the treatment or distribution process, that is intended to kill or inactivate pathogenic microorganisms. (17) Community water system--A public water system which has a potential to serve at least 15 residential service connections on a year-round basis or serves at least 25 residents on a year-round basis. (18) Connection--A single family residential unit or each commercial or industrial establishment to which drinking water is supplied from the system. As an example, the number of service connections in an apartment complex would be equal to the number of individual apartment units. When enough data is not available to accurately determine the number of connections to be served or being served, the population served divided by three will be used as the number of connections for calculating system capacity requirements. Conversely, if only the number of connections is known, the connection total multiplied by three will be the number used for population served. For the purposes of this definition: (A) a dwelling or business which is connected to a system that delivers water by a constructed conveyance other than a pipe shall not be considered a connection if: (i) the water is used exclusively for purposes other than those defined as human consumption (see human consumption); (ii) the executive director determines that alternative water to achieve the equivalent level of public health protection provided by the drinking water standards is provided for residential or similar human consumption, including, but not limited to, drinking and cooking; or (iii) the executive director determines that the water provided for residential or similar human consumption is centrally treated or is treated at the point of entry by a provider, a pass through entity, or the user to achieve the equivalent level of protection provided by the drinking water standards. (B) For a recreational vehicle park, as defined by Texas Water Code, §13.087(a)(3), that is a retail customer of a public water system, the number of connections shall be calculated as: (i) the number of recreational vehicle sites or cabin sites, whether occupied or not, divided by eight; or (ii) the number of recreational vehicle sites or cabin sites, whether occupied or not, divided by the alternative recreational vehicle park connection equivalency specified in §290.45(j) of this title (relating to Minimum Water System Capacity Requirements). (19) Contamination--The presence of any foreign substance (organic, inorganic, radiological, or biological) in water which tends to degrade its quality so as to constitute a health hazard or impair the usefulness of the water. (20) Cross-connection--A physical connection between a public water system and either another supply of unknown or questionable quality, any source which may contain contaminating or polluting substances, or any source of water treated to a lesser degree in the treatment process. (21) Direct integrity test--A physical test applied to a membrane unit in order to identify and isolate integrity breaches/leaks that could result in contamination of the filtrate. (22) Disinfectant--A chemical or a treatment which is intended to kill or inactivate pathogenic microorganisms in water. (23) Disinfection--A process which inactivates pathogenic organisms in the water by chemical oxidants or equivalent agents. (24) Distribution system--A system of pipes that conveys potable water from a treatment plant to the consumers. The term includes pump stations, ground and elevated storage tanks, potable water mains, and potable water service lines and all associated valves, fittings, and meters, but excludes potable water customer service lines. (25) Drinking water--All water distributed by any agency or individual, public or private, for the purpose of human consumption or which may be used in the preparation of foods or beverages or for the cleaning of any utensil or article used in the course of preparation or consumption of food or beverages for human beings. The term "drinking water" shall also include all water supplied for human consumption or used by any institution catering to the public. (26) Drinking water standards--The commission rules covering drinking water standards in Subchapter F of this chapter (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Systems). (27) Elevated storage capacity--That portion of water which can be stored at least 80 feet above the highest service connection in the pressure plane served by the storage tank. (28) Emergency operations--The operation of an affected utility during an extended power outage at a minimum water pressure of 20 pounds per square inch (psi) or a pressure approved by the executive director as required under TWC §13.1394 and 35 psi as required under TWC §13.1395. (29) Emergency power--Either mechanical power or electric generators which can enable the system to provide water under pressure to the distribution system in the event of a local power failure. With the approval of the executive director, dual primary electric service may be considered as emergency power in areas which are not subject to large scale power outages due to natural disasters. (30) Extended power outage--A power outage lasting for more than 24 hours. (31) Filtrate--The water produced from a filtration process; typically used to describe the water produced by filter processes such as membranes. (32) Flux--The throughput of a pressure-driven membrane filtration system expressed as flow per unit of membrane area. For example, gallons per square foot per day or liters per hour per square meter. (33) Grantee--For purposes of this chapter, any person receiving an ownership interest in a public water system, whether by sale, transfer, descent, probate, or otherwise. (34) Grantor--For purposes of this chapter, any person who conveys an ownership interest in a public water system, whether by sale, transfer, descent, probate, or otherwise. (35) Groundwater--Any water that is located beneath the surface of the ground and is not under the direct influence of surface water. (36) Groundwater under the direct influence of surface water--Any water beneath the surface of the ground with: (A) significant occurrence of insects or other macroorganisms, algae, or large-diameter pathogens such as Giardia lamblia or Cryptosporidium ; (B) significant and relatively rapid shifts in water characteristics such as turbidity, temperature, conductivity, or pH which closely correlate to climatological or surface water conditions; or (C) site-specific characteristics including measurements of water quality parameters, well construction details, existing geological attributes, and other features that are similar to groundwater sources that have been identified by the executive director as being under the direct influence of surface water. (37) Health hazard--A cross-connection, potential contamination hazard, or other situation involving any substance that can cause death, illness, spread of disease, or has a high probability of causing such effects if introduced into the potable drinking water supply. (38) Human consumption--Uses by humans in which water can be ingested into or absorbed by the human body. Examples of these uses include, but are not limited to drinking, cooking, brushing teeth, bathing, washing hands, washing dishes, and preparing foods. (39) Indirect integrity monitoring--The monitoring of some aspect of filtrate water quality, such as turbidity, that is indicative of the removal of particulate matter. (40) Innovative/alternate treatment--Any treatment process that does not have specific design requirements in §290.42(a) - (f) of this title (relating to Water Treatment). (41) Interconnection--A physical connection between two public water supply systems. (42) International Fire Code (IFC)--The standards of the International Code Council. (43) Intruder-resistant fence--A fence six feet or greater in height, constructed of wood, concrete, masonry, or metal with three strands of barbed wire extending outward from the top of the fence at a 45 degree angle with the smooth side of the fence on the outside wall. In lieu of the barbed wire, the fence must be eight feet in height. The fence must be in good repair and close enough to surface grade to prevent intruder passage. (44) L/d ratio--The dimensionless value that is obtained by dividing the length (depth) of a granular media filter bed by the weighted effective diameter "d" of the filter media. The weighted effective diameter of the media is calculated based on the percentage of the total bed depth contributed by each media layer. (45) Licensed professional engineer--An engineer who maintains a current license through the Texas Board of Professional Engineers in accordance with its requirements for professional practice. (46) Log removal value (LRV)--Removal efficiency for a target organism, particulate, or surrogate expressed as log10 (i.e., log10 (feed concentration) - log10 (filtrate concentration)). (47) Maximum contaminant level (MCL)--The MCL for a specific contaminant is defined in the section relating to that contaminant. (48) Maximum daily demand--In the absence of verified historical data or in cases where a public water system has imposed mandatory water use restrictions within the past 36 months, maximum daily demand means 2.4 times the average daily demand of the system. (49) Membrane filtration--A pressure or vacuum driven separation process in which particulate matter larger than one micrometer is rejected by an engineered barrier, primarily through a size-exclusion mechanism, and which has a measurable removal efficiency of a target organism that can be verified through the application of a direct integrity test; includes the following common membrane classifications microfiltration (MF), ultrafiltration (UF), nanofiltration (NF), and reverse osmosis (RO), as well as any "membrane cartridge filtration" (MCF) device that satisfies this definition. (50) Membrane LRVC-Test --The number that reflects the removal efficiency of the membrane filtration process demonstrated during challenge testing. The value is based on the entire set of log removal values (LRVs) obtained during challenge testing, with one representative LRV established per module tested. (51) Membrane module--The smallest component of a membrane unit in which a specific membrane surface area is housed in a device with a filtrate outlet structure. (52) Membrane sensitivity--The maximum log removal value that can be reliably verified by a direct integrity test. (53) Membrane unit--A group of membrane modules that share common valving, which allows the unit to be isolated from the rest of the system for the purpose of integrity testing or other maintenance. (54) Milligrams per liter (mg/L)--A measure of concentration, equivalent to and replacing parts per million in the case of dilute solutions. (55) Monthly reports of water works operations--The daily record of data relating to the operation of the system facilities compiled in a monthly report. (56) National Fire Protection Association (NFPA) standards--The standards of the NFPA. (57) NSF International--The organization and the standards, certifications, and listings developed by NSF International (formerly known as the National Sanitation Foundation) related to drinking water. (58) Noncommunity water system--Any public water system which is not a community system. (59) Nonhealth hazard--A cross-connection, potential contamination hazard, or other situation involving any substance that generally will not be a health hazard, but will constitute a nuisance, or be aesthetically objectionable, if introduced into the public water supply. (60) Nontransient, noncommunity water system--A public water system that is not a community water system and regularly serves at least 25 of the same persons at least six months out of the year. (61) Pass--In reference to a reverse osmosis or nanofiltration membrane system, stages of pressure vessels in series in which the permeate from one stage is further processed in a following stage. (62) Peak hourly demand--In the absence of verified historical data, peak hourly demand means 1.25 times the maximum daily demand (prorated to an hourly rate) if a public water supply meets the commission's minimum requirements for elevated storage capacity and 1.85 times the maximum daily demand (prorated to an hourly rate) if the system uses pressure tanks or fails to meet the commission's minimum elevated storage capacity requirement. (63) Plumbing inspector--Any person employed by a political subdivision for the purpose of inspecting plumbing work and installations in connection with health and safety laws and ordinances, who has no financial or advisory interest in any plumbing company, and who has successfully fulfilled the examinations and requirements of the Texas State Board of Plumbing Examiners. (64) Plumbing ordinance--A set of rules governing plumbing practices which is at least as stringent and comprehensive as one of the following nationally recognized codes: (A) the International Plumbing Code; or (B) the Uniform Plumbing Code. (65) Potable water customer service line--The sections of potable water pipe between the customer's meter and the customer's point of use. (66) Potable water main--A pipe or enclosed constructed conveyance operated by a public water system which is used for the transmission or distribution of drinking water to a potable water service line. (67) Potable water service line--The section of pipe between the potable water main and the customer's side of the water meter. In cases where no customer water meter exists, it is the section of pipe that is under the ownership and control of the public water system. (68) Potential contamination hazard--A condition which, by its location, piping or configuration, has a reasonable probability of being used incorrectly, through carelessness, ignorance, or negligence, to create or cause to be created a backflow condition by which contamination can be introduced into the water supply. Examples of potential contamination hazards are: (A) bypass arrangements; (B) jumper connections; (C) removable sections or spools; and (D) swivel or changeover assemblies. (69) Process control duties--Activities that directly affect the potability of public drinking water, including: making decisions regarding the day-to-day operations and maintenance of public water system production and distribution; maintaining system pressures; determining the adequacy of disinfection and disinfection procedures; taking routine microbiological samples; taking chlorine residuals and microbiological samples after repairs or installation of lines or appurtenances; and operating chemical feed systems, filtration, disinfection, or pressure maintenance equipment; or performing other duties approved by the executive director. (70) psi--Pounds per square inch. (71) Public drinking water program--Agency staff designated by the executive director to administer the Safe Drinking Water Act and state statutes related to the regulation of public drinking water. Any report required to be submitted in this chapter to the executive director must be submitted to the Texas Commission on Environmental Quality, Water Supply Division, MC 155, P.O. Box 13087, Austin, Texas 78711-3087. (72) Public health engineering practices--Requirements in this chapter or guidelines promulgated by the executive director. (73) Public water system--A system for the provision to the public of water for human consumption through pipes or other constructed conveyances, which includes all uses described under the definition for drinking water. Such a system must have at least 15 service connections or serve at least 25 individuals at least 60 days out of the year. This term includes: any collection, treatment, storage, and distribution facilities under the control of the operator of such system and used primarily in connection with such system, and any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system. Two or more systems with each having a potential to serve less than 15 connections or less than 25 individuals but owned by the same person, firm, or corporation and located on adjacent land will be considered a public water system when the total potential service connections in the combined systems are 15 or greater or if the total number of individuals served by the combined systems total 25 or greater at least 60 days out of the year. Without excluding other meanings of the terms "individual" or "served," an individual shall be deemed to be served by a water system if he lives in, uses as his place of employment, or works in a place to which drinking water is supplied from the system. (74) Quality Control Release Value (QCRV)--A minimum quality standard of a non-destructive performance test established by the manufacturer for membrane module production that ensures that the module will attain the targeted log removal value demonstrated during challenge testing. (75) Reactor Validation Testing--A process by which a full-scale ultraviolet (UV) reactor's disinfection performance is determined relative to operating parameters that can be monitored. These parameters include flow rate, UV intensity as measured by a UV sensor and the UV lamp status. (76) Recreational Vehicle--A recreational vehicle as defined in Tex. Water Code §13.087(a)(2), which is incorporated by reference as if fully set forth.(77) Resolution--The size of the smallest integrity breach that contributes to a response from a direct integrity test in membranes used to treat surface water or groundwater under the direct influence of surface water. (78) Sanitary control easement--A legally binding document securing all land, within 150 feet of a public water supply well location, from pollution hazards. This document must fully describe the location of the well and surrounding lands and must be filed in the county records to be legally binding. For an example, see commission Form 20698. (79) Sanitary survey--An onsite review of a public water system's adequacy for producing and distributing safe drinking water by evaluating the following elements: water source; treatment; distribution system; finished water storage; pump, pump facilities, and controls; monitoring, reporting, and data verification; system management, operation and maintenance; and operator compliance. (80) Sensitivity--The maximum log removal value (LRV) that can be reliably verified by a direct integrity test in membranes used to treat surface water or groundwater under the direct influence of surface water; also applies to some continuous indirect integrity monitoring methods. (81) Service line--A pipe connecting the utility service provider's main and the water meter, or for wastewater, connecting the main and the point at which the customer's service line is connected, generally at the customer's property line. (82) Service pump--Any pump that takes treated water from storage and discharges to the distribution system. (83) Significant deficiency--Significant deficiencies cause, or have the potential to cause, the introduction of contamination into water delivered to customers. This may include defects in design, operation, or maintenance of the source, treatment, storage, or distribution systems. (84) Stage--In reference to a reverse osmosis or nanofiltration membrane system, a set of pressure vessels installed in parallel. (85) System--Public water system as defined in this section unless otherwise modified (i.e., distribution system). (86) Transfer pump--Any pump which conveys water from one point to another within the treatment process or which conveys water to storage facilities prior to distribution. (87) Transient, noncommunity water system--A public water system that is not a community water system and serves at least 25 persons at least 60 days out of the year, yet by its characteristics, does not meet the definition of a nontransient, noncommunity water system. (88) Vessel--In reference to a reverse osmosis or nanofiltration membrane system, a cylindrical housing unit where membrane modules are placed in a series to form one unit. (89) Wastewater lateral--Any pipe or constructed conveyance carrying wastewater, running laterally down a street, alley, or easement, and receiving flow only from the abutting properties. (90) Wastewater main--Any pipe or constructed conveyance which receives flow from one or more wastewater laterals. (91) Water system--Public water system as defined in this section unless otherwise modified (i.e., distribution system).</content><note type="source"><p>Source Note: The provisions of this §290.38 adopted to be effective October 1, 1992, 17 TexReg 6455; amended to be effective November 3, 1995, 20 TexReg 8620; amended to be effective February 4, 1999, 24 TexReg 731; amended to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective December 10, 2009, 34 TexReg 8744; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective November 8, 2012, 37 TexReg 8849; amended to be effective July 30,2015, 40 TexReg 4769; amended to be effective March 30, 2017, 42 TexReg 1466; amended to be effective January 3, 2019, 43 TexReg 8615; amended to be effective December 21, 2023, 48 TexReg 7585; amended to be effective January 9, 2025, 50 TexReg 159.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scD/s290.39"><num value="290.39">§290.39</num><heading>General Provisions</heading><content>(a) Authority for requirements. Texas Health and Safety Code (THSC), Chapter 341, Subchapter C prescribes the duties of the commission relating to the regulation and control of public drinking water systems in the state. The statute requires that the commission ensure that public water systems: supply safe drinking water in adequate quantities, are financially stable and technically sound, promote use of regional and area-wide drinking water systems, and review completed plans and specifications and business plans for all contemplated public water systems not exempted by THSC, §341.035(d). The statute also requires the commission be notified of any subsequent material changes, improvements, additions, or alterations in existing systems and, consider compliance history in approving new or modified public water systems. Texas Water Code (TWC), §13.1394 and §13.1395, prescribe the duties of the commission relating to standards for emergency operations of affected utilities. The statute requires that the commission ensure that affected utilities provide water service as soon as safe and practicable during an extended power outage following the occurrence of a natural disaster.(b) Reason for this subchapter and minimum criteria. This subchapter has been adopted to ensure regionalization and area-wide options are fully considered, the inclusion of all data essential for comprehensive consideration of the contemplated project, or improvements, additions, alterations, or changes thereto and to establish minimum standardized public health design criteria in compliance with existing state statutes and in accordance with good public health engineering practices. In addition, minimum acceptable financial, managerial, technical, and operating practices must be specified to ensure that facilities are properly operated to produce and distribute safe, potable water.(c) Required actions and approvals prior to construction. A person may not begin construction of a public drinking water supply system unless the executive director determines the following requirements have been satisfied and approves construction of the proposed system.(1) A person proposing to install a public drinking water system within the extraterritorial jurisdiction of a municipality; or within 1/2-mile of the corporate boundaries of a district, or other political subdivision providing the same service; or within 1/2-mile of a certificated service area boundary of any other water service provider shall provide to the executive director evidence that:(A) written application for service was made to that provider; and(B) all application requirements of the service provider were satisfied, including the payment of related fees.(2) A person may submit a request for an exception to the requirements of paragraph (1) of this subsection if the application fees will create a hardship on the person. The request must be accompanied by evidence documenting the financial hardship.(3) A person who is not required to complete the steps in paragraph (1) of this subsection, or who completes the steps in paragraph (1) of this subsection and is denied service or determines that the existing provider's cost estimate is not feasible for the development to be served, shall submit to the executive director:(A) plans and specifications for the system; and(B) a business plan for the system.(4) Emergency Preparedness Plan for Public Water Systems that are Affected Utilities, as defined in TWC §13.1394 and §13.1395, must be submitted as described in §290.39(o) of this title.(d) Submission of plans.(1) Plans, specifications, and related documents will not be considered unless they have been prepared under the direction of a licensed professional engineer. All engineering documents must have engineering seals, signatures, and dates affixed in accordance with the rules of the Texas Board of Professional Engineers.(2) Detailed plans must be submitted for examination at least 30 days prior to the time that approval, comments or recommendations are desired. From this, it is not to be inferred that final action will be forthcoming within the time mentioned.(3) The limits of approval are as follows.(A) The commission's public drinking water program furnishes consultation services as a reviewing body only, and its licensed professional engineers may neither act as design engineers nor furnish detailed estimates.(B) The commission's public drinking water program does not examine plans and specifications in regard to the structural features of design, such as strength of concrete or adequacy of reinforcing. Only the features covered by this subchapter will be reviewed.(C) The consulting engineer and/or owner must provide surveillance adequate to assure that facilities will be constructed according to approved plans and must notify the executive director in writing upon completion of all work. Planning materials shall be submitted to the Texas Commission on Environmental Quality, Water Supply Division, MC 159, P.O. Box 13087, Austin, Texas 78711-3087.(e) Submission of planning material. In general, the planning material submitted shall conform to the following requirements.(1) Engineering reports are required for new water systems and all surface water treatment plants. Engineering reports are also required when design or capacity deficiencies are identified in an existing system. The engineering report shall include, at least, coverage of the following items:(A) statement of the problem or problems;(B) present and future areas to be served, with population data;(C) the source, with quantity and quality of water available;(D) present and estimated future maximum and minimum water quantity demands;(E) description of proposed site and surroundings for the water works facilities;(F) type of treatment, equipment, and capacity of facilities;(G) basic design data, including pumping capacities, water storage and flexibility of system operation under normal and emergency conditions; and(H) the adequacy of the facilities with regard to delivery capacity and pressure throughout the system.(2) All plans and drawings submitted may be printed on any of the various papers which give distinct lines. All prints must be clear, legible and assembled to facilitate review.(A) The relative location of all facilities which are pertinent to the specific project shall be shown.(B) The location of all abandoned or inactive wells within 1/4-mile of a proposed well site shall be shown or reported.(C) If staged construction is anticipated, the overall plan shall be presented, even though a portion of the construction may be deferred.(D) A general map or plan of the municipality, water district, or area to be served shall accompany each proposal for a new water supply system.(3) Specifications for construction of facilities shall accompany all plans. If a process or equipment which may be subject to probationary acceptance because of limited application or use in Texas is proposed, the executive director may give limited approval. In such a case, the owner must be given a bonded guarantee from the manufacturer covering acceptable performance. The specifications shall include a statement that such a bonded guarantee will be provided to the owner and shall also specify those conditions under which the bond will be forfeited. Such a bond will be transferable. The bond shall be retained by the owner and transferred when a change in ownership occurs.(4) A copy of each fully executed sanitary control easement and any other documentation demonstrating compliance with §290.41(c)(1)(F) of this title (relating to Water Sources) shall be provided to the executive director prior to placing the well into service. Each original easement document, if obtained, must be recorded in the deed records at the county courthouse. For an example, see commission Form 20698.(5) Construction features and siting of all facilities for new water systems and for major improvements to existing water systems must be in conformity with applicable commission rules.(6) For public water systems using reverse osmosis or nanofiltration membranes, the engineering report must include the requirements specified in paragraph (1)(A) - (H) of this subsection, and additionally must provide sufficient information to ensure effective treatment. Specifically:(A) Provide a clear identification of the proposed raw water source.(i) If the well has been constructed, a copy of the State of Texas Well Report according to 16 TAC Chapter 76 (relating to Water Well Drillers and Water Well Pump Installers), a cementing certificate (as required by §290.41(c)(3)(A) of this title), and a copy of the complete physical and chemical analysis of the raw water from the well as required by §290.41(c)(3)(G) of this title; or(ii) If the well has not been constructed, the approximate longitude and latitude for the new well and the projected water quality.(B) Provide a description of the pretreatment process that includes:(i) target water quality of the proposed pretreatment process;(ii) constituent(s) to be removed or treated;(iii) method(s) or technologies used; and(iv) operating parameters, such as chemical dosages, filter loading rates, and empty bed contact times.(C) The design of a reverse osmosis or nanofiltration membrane system shall be based on the standard modeling tools of the manufacturer. The model must be run for both new membranes and end-of-life membranes. All design parameters required by the membrane manufacturer's modeling tool must be included in the modeled analysis. At a minimum, the model shall provide:(i) system flow rate;(ii) system recovery;(iii) number of stages;(iv) number of passes;(v) feed pressure;(vi) system configuration with the number of vessels per stage, the number of passes (if applicable), and the number of elements per vessel;(vii) flux (in gallons per square foot per day) for the overall system;(viii) selected fouling factor for new and end-of-life membranes; and(ix) ion concentrations in the feed water for all constituents required by the manufacturer's model and the projected ion concentrations for the permeate water and concentrate water.(D) In lieu of the modeling requirements as detailed in subparagraph (C) of this paragraph, the licensed professional engineer may provide either a pilot study or similar full-scale data in accordance with §290.42(g) of this title (relating to Water Treatment). Alternatively, for reverse osmosis or nanofiltration units rated for flow rates less than 300 gallons per minute, the design specifications can be based on the allowable operating parameters of the manufacturer.(E) Provide documentation that the components and chemicals for the proposed treatment process conform to American National Standards Institute/NSF International (ANSI/NSF) Standard 60 for Drinking Water Treatment Chemicals and ANSI/NSF Standard 61 for Drinking Water System Components.(F) Provide the details for post-treatment and re-mineralization to reduce the corrosion potential of the finished water. If carbon dioxide and/or hydrogen sulfide is present in the reverse osmosis permeate, include the details for a degasifier for post-treatment.(G) For compliance with applicable drinking water quality requirements in Subchapter F of this chapter (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Systems), provide the projected water quality at the entry point to the distribution system and the method(s) used to make the water quality projections.(H) When blending is proposed, provide the blending ratio, source of the water to be blended, and the calculations showing the concentrations of regulated constituents in the finished water.(I) Provide a description of the disinfection byproduct formation potential based on total organic carbon and other precursor sample results.(J) Provide the process control details to ensure the integrity of the membrane system. The engineering report shall identify specific parameters and set points that indicate when membrane cleaning, replacement, and/or inspection is necessary.(i) The parameters shall be based on one, or more of the following: increased salt passage, increased or decreased pressure differential, and/or change in normalized permeate flow.(ii) Define the allowable change from baseline performance.(7) Before reverse osmosis or nanofiltration membrane systems can be used to produce drinking water, but after the reverse osmosis or nanofiltration membrane system has been constructed at the water system, the licensed professional engineer must submit an addendum to the engineering report required by paragraph (6) of this subsection to the executive director for review and approval. The addendum shall include the following verification data of the full-scale treatment process:(A) Provide the initial baseline performance of the plant. The baseline net driving pressure, normalized permeate flow, and salt rejection (or salt passage) must be documented when the reverse osmosis or nanofiltration membrane systems are placed online.(B) Provide the frequency of cleaning or membrane replacement. The frequency must be based on a set time interval or at a set point relative to baseline performance of the unit(s).(C) If modeling is used as the basis for the design, provide verification of the model's accuracy. If the baseline performance evaluation shows that the modeling projection in the engineering report were inaccurate, the licensed professional engineer shall determine if the deviation from the modeled projections resulted from incorrect water quality assumptions or from other incorrect data in the model. The model shall be considered inaccurate if the overall salt passage or the required feed pressure is 10% greater than the model projection. For any inaccurate model, provide a corrected model with the addendum to the engineering report.(D) Provide verification of plant capacity. The capacity of the reverse osmosis and nanofiltration membrane facility shall be based on the as-built configuration of the system and the design parameters in the engineering report with adjustments as indicated by the baseline performance. Refer to paragraph (6)(C) of this subsection and §290.45(a)(6) of this title for specific considerations.(E) Provide a complete physical and chemical analysis of the water. The analyses shall be in accordance with §290.41(c)(3)(G) of this title for the raw water (before any treatment), the water produced from the membrane systems, and the water after any post-treatment. Samples must be submitted to an accredited laboratory for chemical analyses.(8) The calculations for sizing feed pump(s) and chemical storage tank(s) must be submitted to demonstrate that a project meets chemical feed and storage capacity requirements.(f) Submission of business plans. The prospective owner of the system or the person responsible for managing and operating the system must submit a business plan to the executive director that demonstrates that the owner or operator of the system has available the financial, managerial, and technical capability to ensure future operation of the system in accordance with applicable laws and rules. The executive director may order the prospective owner or operator to demonstrate financial assurance to operate the system in accordance with applicable laws and rules as specified in Chapter 37, Subchapter O of this title (relating to Financial Assurance for Public Drinking Water Systems), or as specified by commission rule, unless the executive director finds that the business plan demonstrates adequate financial capability. A business plan shall include the information and be presented in a format prescribed by the executive director. For community water systems, the business plan shall contain, at a minimum, the following elements:(1) description of areas and population to be served by the potential system;(2) description of drinking water supply systems within a two-mile radius of the proposed system, copies of written requests seeking to obtain service from each of those drinking water supply systems, and copies of the responses to the written requests;(3) time line for construction of the system and commencement of operations;(4) identification of and costs of alternative sources of supply;(5) selection of the alternative to be used and the basis for that selection;(6) identification of the person or entity which owns or will own the drinking water system and any identifiable future owners of the drinking water system;(7) identification of any other businesses and public drinking water system(s) owned or operated by the applicant, owner(s), parent organization, and affiliated organization(s);(8) an operations and maintenance plan which includes sufficient detail to support the budget estimate for operation and maintenance of the facilities;(9) assurances that the commitments and resources needed for proper operation and maintenance of the system are, and will continue to be, available, including the qualifications of the organization and each individual associated with the proposed system;(10) for retail public utilities as defined by TWC §13.002:(A) projected rate revenue from residential, commercial, and industrial customers; and(B) pro forma income, expense, and cash flow statements;(11) identification of any appropriate financial assurance, including those being offered to capital providers;(12) a notarized statement signed by the owner or responsible person that the business plan has been prepared under his direction and that he is responsible for the accuracy of the information; and(13) other information required by the executive director to determine the adequacy of the business plan or financial assurance.(g) Business plans not required. A person is not required to file a business plan if the person:(1) is a county;(2) is a retail public utility as defined by TWC §13.002, unless that person is a utility as defined by that section;(3) has executed an agreement with a political subdivision to transfer the ownership and operation of the water supply system to the political subdivision;(4) is a Class A utility, as defined by TWC §13.002, that has applied for or been granted an amendment of a certificate of convenience and necessity under TWC §13.258, for the area in which the construction of the public drinking water supply system will operate; or(5) is a noncommunity, non-transient water system and the person has demonstrated financial assurance under THSC, Chapter 361 or Chapter 382 or TWC Chapter 26.(h) Beginning and completion of work.(1) No person may begin construction on a new public water system before receiving written approval of plans and specifications and, if required, approval of a business plan from the executive director. No person may begin construction of modifications to a public water system without providing notification to the executive director and submitting and receiving approval of plans and specifications if requested in accordance with subsection (j) of this section.(2) The executive director shall be notified in writing by the design engineer or the owner before construction is started.(3) Upon completion of the water works project, the engineer or owner shall notify the executive director in writing as to its completion and attest to the fact that the completed work is substantially in accordance with the plans and change orders on file with the commission.(i) Changes in previously approved plans and specifications. Any addenda or change orders which may involve a health hazard or relocation of facilities, such as wells, treatment units, and storage tanks, shall be submitted to the executive director for review and approval.(j) Changes in existing systems or supplies. Public water systems shall notify the executive director prior to making any significant change or addition to the system's production, treatment, storage, pressure maintenance, or distribution facilities. Significant changes in existing systems or supplies shall not be instituted without the prior approval of the executive director.(1) Public water systems shall submit plans and specifications to the executive director for the following significant changes:(A) proposed changes to existing systems which result in an increase or decrease in production, treatment, storage, or pressure maintenance capacity;(B) proposed changes to the disinfection process used at plants that treat surface water or groundwater that is under the direct influence of surface water including changes involving the disinfectants used, the disinfectant application points, or the disinfectant monitoring points;(C) proposed changes to the type of disinfectant used to maintain a disinfectant residual in the distribution system;(D) proposed changes in existing distribution systems when the change is greater than 10% of the number of connections, results in the water system's inability to comply with any of the applicable capacity requirements of §290.45 of this title, or involves interconnection with another public water system; and(E) any other material changes specified by the executive director.(2) Public water systems shall notify the executive director in writing of the addition of treatment chemicals, including long-term treatment changes, that will impact the corrosivity of the water. These are considered to be significant changes that require written approval from the executive director.(A) Examples of long-term treatment changes that could impact the corrosivity of the water include the addition of a new treatment process or modification of an existing treatment process. Examples of modifications include switching secondary disinfectants, switching coagulants, and switching corrosion inhibitor products. Long-term changes can include dose changes to existing chemicals if the system is planning long-term changes to its finished water pH or residual inhibitor concentration. Long-term treatment changes would not include chemical dose fluctuations associated with daily raw water quality changes.(B) After receiving the notification, the executive director will determine whether the submittal of plans and specifications will be required. Upon request of the executive director, the water system shall submit plans and specifications in accordance with the requirements of subsection (d) of this section.(3) Plans and specifications may not be required for changes that are specifically addressed in paragraph (1)(D) of this subsection in the following situations:(A) Unless plans and specifications are required by Chapter 293 of this title (relating to Water Districts), the executive director will not require another state agency or a political subdivision to submit planning material on distribution line improvements if the entity has its own internal review staff and complies with all of the following criteria:(i) the internal review staff includes one or more licensed professional engineers that are employed by the political subdivision and must be separate from, and not subject to the review or supervision of, the engineering staff or firm charged with the design of the distribution extension under review;(ii) a licensed professional engineer on the internal review staff determines and certifies in writing that the proposed distribution system changes comply with the requirements of §290.44 of this title (relating to Water Distribution) and will not result in a violation of any provision of §290.45 of this title;(iii) the state agency or political subdivision includes a copy of the written certification described in this subparagraph with the initial notice that is submitted to the executive director.(B) Unless plans and specifications are required by Chapter 293 of this title, the executive director will not require planning material on distribution line improvements from any public water system that is required to submit planning material to another state agency or political subdivision that complies with the requirements of subparagraph (A) of this paragraph. The notice to the executive director must include a statement that a state statute or local ordinance requires the planning materials to be submitted to the other state agency or political subdivision and a copy of the written certification that is required in subparagraph (A) of this paragraph.(4) Public water systems shall notify the executive director in writing of proposed replacement or change of membrane modules, which may be a significant change. After receiving the notification, the executive director will determine whether the submittal of plans and specifications will be required. Upon request of the executive director, the system shall submit plans and specifications in accordance with the requirements of subsection (d) of this section. In its notification to the executive director, the system shall include the following information:(A) The membrane module make/type, model, and manufacturer;(B) The membrane plant's water source (groundwater, surface water, groundwater under the direct influence of surface water, or other);(C) Whether the membrane modules are used for pathogen treatment or not;(D) Total number of membrane modules per membrane unit; and(E) The number of membrane modules being replaced or changed for each membrane unit.(5) Public water systems that furnish for public or private use drinking water containing added fluoride may not permanently terminate the fluoridation of water unless it provides both written notice to the executive director 60 days before the termination and written notice to customers as required by §290.122(j) of this title (relating to Public Notification).(k) Planning material acceptance. Planning material for improvements to an existing system which does not meet the requirements of all sections of this subchapter will not be considered unless the necessary modifications for correcting the deficiencies are included in the proposed improvements, or unless the executive director determines that reasonable progress is being made toward correcting the deficiencies and no immediate health hazard will be caused by the delay.(l) Exceptions. Requests for exceptions to one or more of the requirements in this subchapter shall be considered on an individual basis. Any water system which requests an exception must demonstrate to the satisfaction of the executive director that the exception will not compromise the public health or result in a degradation of service or water quality.(1) The exception must be requested in writing and must be substantiated by carefully documented data. The request for an exception shall precede the submission of engineering plans and specifications for a proposed project for which an exception is being requested.(2) Any exception granted by the commission is subject to revocation.(3) Any request for an exception which is not approved by the commission in writing is denied.(4) The executive director may establish site-specific requirements for systems that have been granted an exception. The requirements may include, but are not limited to: site-specific design, operation, maintenance, and reporting requirements.(5) Water systems that are granted an exception shall comply with the requirements established by the executive director under paragraph (4) of this subsection.(m) Notification of system startup or reactivation. The owner or responsible official must provide written notification to the commission of the startup of a new public water supply system or reactivation of an existing public water supply system. This notification must be made immediately upon meeting the definition of a public water system as defined in §290.38 of this title.(n) Actions required of the owner or operator of a public drinking water system. The commission may require the owner or operator of a public drinking water supply system that was constructed without the approval required by THSC, §341.035, that has a history of noncompliance with THSC, Chapter 341, Subchapter C or commission rules, or that is subject to a commission enforcement action to take the following action:(1) provide the executive director with a business plan that demonstrates that the system has available the financial, managerial, and technical resources adequate to ensure future operation of the system in accordance with applicable laws and rules. The business plan must fulfill all the requirements for a business plan as set forth in subsection (f) of this section;(2) provide adequate financial assurance of the ability to operate the system in accordance with applicable laws and rules. The executive director will set the amount of the financial assurance, after the business plan has been reviewed and approved by the executive director.(A) The amount of the financial assurance will equal the difference between the amount of projected system revenues and the projected cash needs for the period of time prescribed by the executive director.(B) The form of the financial assurance will be as specified in Chapter 37, Subchapter O of this title and will be as specified by the executive director.(C) If the executive director relies on rate increases or customer surcharges as the form of financial assurance, such funds shall be deposited in an escrow account as specified in Chapter 37, Subchapter O of this title and released only with the approval of the executive director.(o) Emergency Preparedness Plans for Affected Utilities as defined in TWC §13.1394 and §13.1395.(1) Each public water system that is also an affected utility is required to adopt and submit to the executive director an emergency preparedness plan in accordance with §290.45 of this title and may use the template in Appendix G of §290.47 of this title. Emergency preparedness plans are required to be prepared under the direction of a licensed professional engineer when an affected utility has been granted or is requesting an alternative capacity requirement in accordance with §290.45(g) of this title, or is requesting to meet the requirements of TWC §13.1394 or §13.1395, as an alternative to any rule requiring elevated storage, or as determined by the executive director on a case-by-case basis.(2) Each affected utility that supplies, provides, or conveys surface water to wholesale customers shall include the following provisions in its emergency preparedness plan.(A) An affected utility as defined by TWC §13.1394 shall provide provisions for demonstrating the capability of each raw water intake pump, water treatment plant, pump station, and pressure facility necessary to provide water to its wholesale customers during emergencies.(B) An affected utility as defined by TWC §13.1395 shall provide provisions for the installation and maintenance of automatically starting auxiliary generators or distributive generation facilities for each raw water intake pump station, water treatment plant, pump station, and pressure facility necessary to provide water to its wholesale customers, or demonstrate the capability of providing raw water to its wholesale customers during emergencies through alternative means acceptable to the commission.(C) Subparagraphs (A) and (B) do not apply to raw water services that are unnecessary or otherwise subject to interruption or curtailment during emergencies under a contract, as referenced in TWC §13.1394 and §13.1395.(3) The executive director shall review an emergency preparedness plan submitted under this subsection. If the executive director determines that the plan is not acceptable, the executive director shall recommend changes to the plan. The executive director must make its recommendations on or before the 90th day after the executive director receives the plan. In accordance with the commission rules, an emergency preparedness plan must include one of the options listed in §290.45(h)(1)(A) - (N) of this title when operating under TWC §13.1394, or options listed in §290.45(i)(1)(A) - (H) of this title when operating under TWC §13.1395.(4) An affected utility, defined in TWC §`13.1394 and §13.1395, shall implement the emergency preparedness plan approved by the executive director.(5) An affected utility may file with the executive director a written request for an extension not to exceed 90 days, of the date by which the affected utility is required under this subsection to submit the affected utility's emergency preparedness plan or of the date by which the affected utility is required under this subsection to implement the affected utility's emergency preparedness plan. The executive director may approve the requested extension for good cause shown.(6) The executive director may grant a waiver of the requirements for emergency preparedness plans to an affected utility if the executive director determines that compliance with this section will cause a significant financial burden on customers of the affected utility. The affected utility shall submit financial, managerial, and technical information as requested by the executive director to demonstrate the financial burden.</content><note type="source"><p>Source Note: The provisions of this §290.39 adopted to be effective October 1, 1992, 17 TexReg 6455; amended to be effective November 3, 1995, 20 TexReg 8620; amended to be effective February 4, 1999, 24 TexReg 731; amended to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective December 10, 2009, 34 TexReg 8744; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective November 8, 2012, 37 TexReg 8849; amended to be effectiveJuly 30, 2015, 40 TexReg 4769; amended to be effective January 3, 2019, 43 TexReg 8615; amended to be effective September 17, 2020, 45 TexReg 6375; amended to be effective December 21, 2023, 48 TexReg 7585.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scD/s290.40"><num value="290.40">§290.40</num><heading>Cessation of Construction and Operations</heading><content>(a) A public water supply system shall stop operations on receipt of a written notification of the executive director or an order of the commission issued under this section.(b) The executive director or the commission may order a public water supply system to stop operations if:(1) The system was constructed without approved plans and specifications and a business plan as required under §290.39 of this title (relating to General Provisions); or(2) The executive director determines that the system presents an imminent health hazard.(c) A notification or order issued under this section may be delivered by facsimile, by personal service, or by mail.(d) A water supply system subject to notification or an order under this section, on written request, is entitled to an opportunity to be heard by the commissioners at a commission meeting.(e) The public water supply system may not resume operations until the commission, the executive director, or a court authorizes the resumption.(f) No person or entity may construct or operate a public drinking water system in violation of these sections or the drinking water standards.(g) No person or entity may distribute drinking water to the public in violation of these sections or the drinking water standards.</content><note type="source"><p>Source Note: The provisions of this §290.40 adopted to be effective October 1, 1992, 17 TexReg 6455; amended to be effective February 4, 1999, 24 TexReg 731.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scD/s290.41"><num value="290.41">§290.41</num><heading>Water Sources</heading><content>(a) Water quality. The quality of water to be supplied must meet the quality criteria prescribed by the commission's drinking water standards contained in Subchapter F of this chapter (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Systems).(b) Water quantity. Sources of supply, both ground and surface, shall have a safe yield capable of supplying the maximum daily demands of the distribution system during extended periods of peak usage and critical hydrologic conditions. The pipelines and pumping capacities to treatment plants or distribution systems shall be adequate for such water delivery. Minimum capacities required are specified in §290.45 of this title (relating to Minimum Water System Capacity Requirements).(1) A retail public utility as defined by Texas Water Code, §13.002(19) and each entity from which the utility is obtaining wholesale water service for the utility's retail system shall report to the executive director when the utility or entity is reasonably certain that the water supply will be available for less than 180 days. The reporting must be accomplished by utilizing the online "PWS Drought Contingency Plan Reporting Form."(2) If reporting cannot be accomplished in accordance with paragraph (1) of this subsection, then the retail public utility or entity from which the utility is obtaining wholesale water service may report to the executive director by United States Postal Service mail, program e-mail, or facsimile.(c) Groundwater sources and development.(1) Groundwater sources shall be located so that there will be no danger of pollution from flooding or from unsanitary surroundings, such as privies, sewage, sewage treatment plants, livestock and animal pens, solid waste disposal sites or underground petroleum and chemical storage tanks and liquid transmission pipelines, or abandoned and improperly sealed wells.(A) No well site which is within 50 feet of a tile or concrete sanitary sewer, sewerage appurtenance, septic tank, storm sewer, or cemetery; or which is within 150 feet of a septic tank perforated drainfield, areas irrigated by low dosage, low angle spray on-site sewage facilities, absorption bed, evapotranspiration bed, improperly constructed water well, or underground petroleum and chemical storage tank or liquid transmission pipeline will be acceptable for use as a public drinking water supply. Sanitary or storm sewers constructed of ductile iron or polyvinyl chloride (PVC) pipe meeting American Water Works Association (AWWA) standards, having a minimum working pressure of 150 pounds per square inch (psi) or greater, and equipped with pressure type joints may be located at distances of less than 50 feet from a proposed well site, but in no case shall the distance be less than ten feet.(B) No well site shall be located within 500 feet of a sewage treatment plant or within 300 feet of a sewage wet well, sewage pumping station, or a drainage ditch which contains industrial waste discharges or the wastes from sewage treatment systems.(C) No water wells shall be located within 500 feet of animal feed lots, solid waste disposal sites, lands on which sewage plant or septic tank sludge is applied, or lands irrigated by sewage plant effluent.(D) Livestock in pastures shall not be allowed within 50 feet of water supply wells.(E) All known abandoned or inoperative wells (unused wells that have not been plugged) within 1/4-mile of a proposed well site shall be reported to the commission along with existing or potential pollution hazards. These reports are required for community and nontransient, noncommunity groundwater sources. Examples of existing or potential pollution hazards which may affect groundwater quality include, but are not limited to: landfill and dump sites, animal feedlots, military facilities, industrial facilities, wood-treatment facilities, liquid petroleum and petrochemical production, storage, and transmission facilities, Class 1, 2, 3, 4, and 5 injection wells, and pesticide storage and mixing facilities. This information must be submitted prior to construction or as required by the executive director.(F) A sanitary control easement or sanitary control easements covering land within 150 feet of the well, or executive director approval for a substitute authorized by this subparagraph, shall be obtained.(i) The sanitary control easement(s) secured shall provide that none of the pollution hazards covered in subparagraphs (A) - (E) of this paragraph, or any facilities that might create a danger of pollution to the water to be produced from the well, will be located thereon.(ii) For the purpose of a sanitary control easement, an improperly constructed water well is one which fails to meet the surface and subsurface construction standards for public water supply wells. Residential type wells within a sanitary control easement must be constructed to public water well standards.(iii) A copy of the recorded sanitary control easement(s) shall be included with plans and specifications submitted to the executive director for review.(iv) With the approval of the executive director, the public water system may submit any of the following as a substitute for obtaining, recording, and submitting a copy of the recorded sanitary control easement(s) covering land within 150 feet of the well:(I) a copy of the recorded deed and map demonstrating that the public water system owns all real property within 150 feet of the well;(II) a copy of the recorded deed and map demonstrating that the public water system owns a portion of real property within 150 feet of the well, and a copy of the sanitary control easement(s) that the public water system has obtained, recorded, and submitted to the executive director applicable to the remaining portion of real property within 150 feet of the well not owned by the public water system; or(III) for a political subdivision, a copy of an ordinance or land use restriction adopted and enforced by the political subdivision which provides an equivalent or higher level of sanitary protection to the well as a sanitary control easement.(v) If the executive director approves a sanitary control easement substitute identified in clause (iv)(I) or (II) of this subparagraph for a public water system and the public water system conveys the property it owns within 150 feet of the well to another person or persons, the public water system must at that time obtain, record, and submit to the executive director a copy of the recorded sanitary control easement(s) applicable to the conveyed portion of the property within 150 feet of the well, unless the executive director approves a substitute identified in clause (iv) of this subparagraph.(2) The premises, materials, tools, and drilling equipment shall be maintained so as to minimize contamination of the groundwater during drilling operation.(A) Water used in any drilling operation shall be of safe sanitary quality. Water used in the mixing of drilling fluids or mud shall contain a chlorine residual of at least 0.5 milligrams per liter (mg/L).(B) The slush pit shall be constructed and maintained so as to minimize contamination of the drilling mud.(C) No temporary toilet facilities shall be maintained within 150 feet of the well being constructed unless they are of a sealed, leakproof type.(3) The construction, disinfection, protection, and testing of a well to be used as a public water supply source must meet the following conditions.(A) Before placing the well into service, a public water system shall furnish a copy of the well completion data, which includes the following items: the Driller's Log (geological log and material setting report); a cementing certificate; the results of a 36-hour pump test; the results of the microbiological and chemical analyses required by subparagraphs (F) and (G) of this paragraph; a legible copy of the recorded deed or deeds for all real property within 150 feet of the well; a legible copy of the sanitary control easement(s) or other documentation demonstrating compliance with paragraph (1)(F) of this subsection; an original or legible copy of a United States Geological Survey 7.5-minute topographic quadrangle showing the accurate well location to the executive director; and a map demonstrating the well location in relation to surrounding property boundaries. All the documents listed in this paragraph must be approved by the executive director before final approval is granted for the use of the well.(B) The casing material used in the construction of wells for public use shall be new carbon steel, high-strength low-alloy steel, stainless steel or plastic. The material shall conform to AWWA standards. The casing shall extend a minimum of 18 inches above the elevation of the finished floor of the pump room or natural ground surface and a minimum of one inch above the sealing block or pump motor foundation block when provided. The casing shall extend at least to the depth of the shallowest water formation to be developed and deeper, if necessary, in order to eliminate all undesirable water-bearing strata. Well construction materials containing more than 0.25% lead are prohibited.(C) The space between the casing and drill hole shall be sealed by using enough cement under pressure to completely fill and seal the annular space between the casing and the drill hole. The well casing shall be cemented in this manner from the top of the shallowest formation to be developed to the earth's surface. The driller shall utilize a pressure cementation method in accordance with the most current AWWA Standard for Water Wells (A100), Appendix C: Section C.2 (Positive Displacement Exterior Method); Section C.3 (Interior Method Without Plug); Section C.4 (Positive Placement, Interior Method, Drillable Plug); and Section C.5 (Placement Through Float Shoe Attached to Bottom of Casing). The grouting mixture used to pressure cement the annular space shall be neat cement as specified in the most current AWWA Standard for Water Wells and to which a maximum of 6%, by dry weight, bentonite and 2%, by dry weight, calcium chloride may be added. The minimum annular space between the outside diameter of the casing pipe and the borehole shall be no less than 1 1/2 inches in radial thickness or three inches in net diametrical difference and the pressure grouting shall be from the bottom upward utilizing one of the methods listed in this subparagraph for all public water system groundwater well construction. Cementation methods other than those listed in this subparagraph may be used on a site-specific basis with the prior written approval of the executive director. A cement bonding log, as well as any other documentation deemed necessary, may be required by the executive director to assure complete sealing of the annular space.(D) When a gravel packed well is constructed, all gravel shall be of selected and graded quality and shall be thoroughly disinfected with a 50 mg/L chlorine solution as it is added to the well cavity.(E) Safeguards shall be taken to prevent possible contamination of the water or damage by trespassers following the completion of the well and prior to installation of permanent pumping equipment.(F) Upon well completion, or after an existing well has been reworked, the well shall be disinfected in accordance with current AWWA standards for well disinfection except that the disinfectant shall remain in the well for at least six hours.(i) Before placing the well in service, the water containing the disinfectant shall be flushed from the well and then samples of water shall be collected and submitted for microbiological analysis until three successive daily raw water samples are free of coliform organisms. The analysis of these samples must be conducted by a laboratory accredited by the Texas Commission on Environmental Quality.(ii) Appropriate facilities for treatment of the water shall be provided where a satisfactory microbiological record cannot be established after repeated disinfection. The extent of water treatment required will be determined on the basis of geological data, well construction features, nearby sources of contamination and, perhaps, on the basis of quantitative microbiological analyses.(G) A complete physical and chemical analysis of the water produced from a new well shall be made after 36 hours of continuous pumping at the design withdrawal rate. Shorter pump test periods can be accepted for large capacity wells producing from areas of known groundwater production and quality so as to prevent wasting of water. Samples must be submitted to an accredited laboratory for chemical analyses. Tentative approval may be given on the basis of tests performed by in-plant or private laboratories, but final acceptance by the commission shall be on the basis of results from the accredited laboratory. Appropriate treatment shall be provided if the analyses reveal that the water from the well fails to meet the water quality criteria as prescribed by the drinking water standards. These criteria include turbidity, color and threshold odor limitations, and excessive hydrogen sulfide, carbon dioxide, or other constituents or minerals which make the water undesirable or unsuited for domestic use. Additional chemical and microbiological tests may be required after the executive director conducts a vulnerability assessment of the well.(H) Below ground-level pump rooms and pump pits will not be allowed in connection with water supply installations.(I) The well site shall be fine graded so that the site is free from depressions, reverse grades, or areas too rough for proper ground maintenance so as to ensure that surface water will drain away from the well. In all cases, arrangements shall be made to convey well pump drainage, packing gland leakage, and floor drainage away from the wellhead. Suitable drain pipes located at the outer edge of the concrete floor shall be provided to collect this water and prevent its ponding or collecting around the wellhead. This wastewater shall be disposed of in a manner that will not cause any nuisance from mosquito breeding or stagnation. Drains shall not be directly connected to storm or sanitary sewers.(J) In all cases, a concrete sealing block extending at least three feet from the well casing in all directions, with a minimum thickness of six inches and sloped to drain away at not less than 0.25 inches per foot shall be provided around the wellhead.(K) Wellheads and pump bases shall be sealed by a gasket or sealing compound and properly vented to prevent the possibility of contaminating the well water. A well casing vent shall be provided with an opening that is covered with 16-mesh or finer corrosion-resistant screen, facing downward, elevated and located so as to minimize the drawing of contaminants into the well. Wellheads and well vents shall be at least two feet above the highest known watermark or 100-year flood elevation, if available, or adequately protected from possible flood damage by levees.(L) If a well blow-off line is provided, its discharge shall terminate in a downward direction and at a point which will not be submerged by flood waters.(M) A suitable sampling cock shall be provided on the discharge pipe of each well pump prior to any treatment.(N) Flow-measuring devices shall be provided for each well to measure production yields and provide for the accumulation of water production data. These devices shall be located to facilitate daily reading.(O) All completed well units shall be protected by intruder-resistant fences, the gates of which are provided with locks or shall be enclosed in locked, ventilated well houses to exclude possible contamination or damage to the facilities by trespassers. The gates or wellhouses shall be locked during periods of darkness and when the plant is unattended.(P) An all-weather access road shall be provided to each well site.(Q) If an air release device is provided on the discharge piping, it shall be installed in such a manner as to preclude the possibility of submergence or possible entrance of contaminants. In this respect, all openings to the atmosphere shall be covered with 16-mesh or finer, corrosion-resistant screening material or an acceptable equivalent.(4) Pitless units may be desirable in areas subject to vandalism or extended periods of subfreezing weather.(A) Pitless units shall be shop fabricated from the point of connection with the well casing to the unit cap or cover, be threaded or welded to the well casing, be of watertight construction throughout, and be of materials and weight at least equivalent and compatible to the casing. The units must have a field connection to the lateral discharge from the pitless unit of threaded, flanged, or mechanical joint connection.(B) The design of the pitless unit shall make provisions for an access to disinfect the well, a properly designed casing vent, a cover at the upper terminal of the well that will prevent the entrance of contamination, a sealed entrance connection for electrical cable, and at least one check valve within the well casing. The unit shall have an inside diameter as great as that of the well casing up to and including casing diameters of 12 inches.(C) If the connection to the casing is by field weld, the shop-assembled unit must be designed specifically for field welding to the casing. The only field welding permitted will be that needed to connect a pitless unit to the well casing.(D) With the exception of the fact that the well was constructed using a pitless unit, the well must otherwise meet all of the requirements of paragraph (3) of this subsection.(d) Springs and other water sources.(1) Springs and other similar sources of flowing artesian water shall be protected from potential contaminant sources in accordance with the requirements of subsection (c)(1) of this section.(2) Before placing the spring or similar source into service, completion data similar to that required by subsection (c)(3)(A) of this section must be submitted to the executive director for review and approval to the Texas Commission on Environmental Quality, Water Supply Division, MC 159, P.O. Box 13087, Austin, Texas 78711-3087.(3) Springs and similar sources shall be constructed in a manner which will preclude the entrance of surface water and debris.(A) The site shall be fine graded so that it is free from depressions, reverse grades, or areas too rough for proper ground maintenance in order to ensure that surface water will drain away from the source.(B) The spring or similar source shall be encased in an open-bottomed, watertight basin which intercepts the flowing water below the surface of the ground. The basin shall extend at least 18 inches above ground level. The top of the basin shall also be at least two feet above the highest known watermark or 100-year flood elevation, if available, or adequately protected from possible flood damage by levees.(C) In all cases, a concrete sealing block shall be provided which extends at least three feet from the encasement in all directions. The sealing block shall be at least six inches thick and be sloped to drain away from the encasement at not less than 0.25 inches per foot.(D) The top of the encasement shall be provided with a sloped, watertight roof which prevents the ponding of water and precludes the entrance of animals, insects, and other sources of contamination.(E) The roof of the encasement shall be provided with a hatch that is not less than 30 inches in diameter. The hatch shall have a raised curbing at least four inches in height with a lockable cover that overlaps the curbing at least two inches in a downward direction. Where necessary, a gasket shall be used to make a positive seal when the hatch is closed. All hatches shall remain locked except during inspections and maintenance.(F) The encasement shall be provided with a gooseneck vent or roof ventilator which is equipped with approved screens to prevent entry of animals, birds, insects, and heavy air contaminants. Screens shall be fabricated of corrosion-resistant material and shall be 16-mesh or finer. Screens shall be securely clamped in place with stainless or galvanized bands or wires.(G) The encasement shall be provided with an overflow which is designed to prevent the entry of animals, birds, insects, and debris. The discharge opening of the overflow shall be above the surface of the ground and shall not be subject to submergence.(4) Springs and similar sources must be provided with the appurtenances required by subsection (c)(3)(L) - (Q) of this section.(5) All systems with new springs or similar sources must monitor microbiological source water quality at the new springs or similar sources in accordance with §290.111 of this title (relating to Surface Water Treatment) on a schedule determined by the executive director. The system must notify the agency of the new spring or similar source prior to construction. The executive director may waive these requirements if the spring or similar source has been determined not to be under the direct influence of surface water.(e) Surface water sources and development.(1) To determine the degree of pollution from all sources within the watershed, an evaluation shall be made of the surface water source in the area of diversion and its tributary streams. The area where surface water sources are diverted for drinking water use shall be evaluated and protected from sources of contamination.(A) Where surface water sources are subject to continuous or intermittent contamination by municipal, agricultural, or industrial wastes and/or treated effluent, the adverse effects of the contamination on the quality of the raw water reaching the treatment plant shall be determined by site evaluations and laboratory procedures.(B) The disposal of all liquid or solid wastes from any source on the watershed must be in conformity with applicable regulations and state statutes.(C) Shore installations, marinas, boats and all habitations on the watershed shall be provided with satisfactory sewage disposal facilities. Septic tanks and soil absorption fields, tile or concrete sanitary sewers, sewer manholes, or other approved toilet facilities shall not be located in an area within 75 feet horizontally from the lake water surface at the uncontrolled spillway elevation of the lake or 75 feet horizontally from the 50-year flood elevation, whichever is lower.(D) Disposal of wastes from boats or any other watercraft shall be in accordance with §§321.1 - 321.11 of this title (relating to Boat Sewage Disposal).(E) Pesticides or herbicides which are used within the watershed shall be applied in strict accordance with the product label restrictions.(F) Before approval of a new surface water source, the system shall provide the executive director with information regarding specific water quality parameters of the potential source water. These parameters are pH, total coliform, Escherichia coli, turbidity, alkalinity, hardness, bromide, total organic carbon, temperature, color, taste and odor, regulated volatile organic compounds, regulated synthetic organic compounds, regulated inorganic compounds, and possible sources of contamination. If data on the incidence of Giardia cysts and Cryptosporidium oocysts has been collected, the information shall be provided to the executive director. This data shall be provided to the executive director as part of the approval process for a new surface water source.(G) All systems with new surface water intakes or new bank filtration wells must monitor microbiological source water quality at the new surface water intakes or new bank filtration wells in accordance with §290.111 of this title on a schedule determined by the executive director. The system must notify the agency of the new surface water intake or bank filtration well prior to construction.(2) Intakes shall be located and constructed in a manner which will secure raw water of the best quality available from the source.(A) Intakes shall not be located in areas subject to excessive siltation or in areas subject to receiving immediate runoff from wooded sloughs or swamps.(B) Raw water intakes shall not be located within 1,000 feet of boat launching ramps, marinas, docks, or floating fishing piers which are accessible by the public.(C) A restricted zone of 200 feet radius from the raw water intake works shall be established and all recreational activities and trespassing shall be prohibited in this area. Regulations governing this zone shall be in the city ordinances or the rules and regulations promulgated by a water district or similar regulatory agency. The restricted zone shall be designated with signs recounting these restrictions. The signs shall be maintained in plain view of the public and shall be visible from all parts of the restricted area. In addition, special buoys may be required as deemed necessary by the executive director. Provisions shall be made for the strict enforcement of such ordinances or regulations.(D) Commission staff shall make an on-site evaluation of any proposed raw water intake location. The evaluation must be requested prior to final design and must be supported by preliminary design drawings. Once the final intake location has been selected, the executive director shall be furnished with an original or legible copy of a United States Geological Survey 7.5-minute topographic quadrangle showing the accurate intake location.(E) Intakes shall be located and constructed in a manner which will allow raw water to be taken from a variety of depths and which will permit withdrawal of water when reservoir levels are very low. Fixed level intakes are acceptable if water quality data is available to establish that the effect on raw water quality will be minimal.(F) Water intake works shall be provided with screens or grates to minimize the amount of debris entering the plant.(G) Intakes shall not be located within 500 feet of a sewage treatment plant or lands irrigated with sewage effluent.(3) The raw water pump station shall be located in a well-drained area and shall be designed to remain in operation during flood events.(4) An all weather road shall be provided to the raw water pump station.(5) The raw water pump station and all appurtenances must be installed in a lockable building that is designed to prevent intruder access or enclosed by an intruder-resistant fence with lockable gates.(f) Weatherization. All critical components necessary for the continuous provision of raw water from the source must be protected from adverse weather conditions.</content><note type="source"><p>Source Note: The provisions of this §290.41 adopted to be effective October 1, 1992, 17 TexReg 6455; amended to be effective November 3, 1995, 20 TexReg 8620; amended to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective September 11, 2014, 39 TexReg 7145; amended to be effective July 30, 2015, 40 TexReg 4769; amended to be effective December 21, 2023, 48 TexReg 7585.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scD/s290.42"><num value="290.42">§290.42</num><heading>Water Treatment</heading><content>(a) Capacity and location.(1) Based on current acceptable design standards, the total capacity of the public water system's treatment facilities must always be greater than its anticipated maximum daily demand. The water treatment plant and all pumping units shall be located in well-drained areas not subject to flooding and away from seepage areas or where the groundwater water table is near the surface.(A) Water treatment plants shall not be located within 500 feet of a sewage treatment plant or lands irrigated with sewage effluent. A minimum distance of 150 feet must be maintained between any septic tank drainfield line and any underground treatment or storage unit. Any sanitary sewers located within 50 feet of any underground treatment or storage unit shall be constructed of ductile iron or polyvinyl chloride (PVC) pipe with a minimum pressure rating of 150 pounds per square inch (psi) and have watertight joints.(B) Plant site selection shall also take into consideration the need for disposition of all plant wastes in accordance with all applicable regulations and state statutes, including both liquid and solid wastes, or by-product material from operation and/or maintenance.(3) Each water treatment plant shall be located at a site that is accessible by an all-weather road.(b) Groundwater.(1) Disinfection facilities shall be provided for all groundwater supplies for the purpose of microbiological control and distribution protection and shall be in conformity with applicable disinfection requirements in subsection (e) of this section and in a manner consistent with the requirements of §290.110 of this title (relating to Disinfectant Residuals).(2) Treatment facilities shall be provided for groundwater if the water does not meet the drinking water standards. The facilities provided shall be in conformance with established and proven methods.(A) Filters provided for turbidity and microbiological quality control shall be preceded by coagulant addition and shall conform to the requirements of subsection (d)(11) of this section. Filtration rates for iron and manganese removal, regardless of the media or type of filter, shall be based on a maximum rate of five gallons per minute per square foot (gpm/sq ft).(B) The removal of iron and manganese may not be required if it can be demonstrated that these metals can be sequestered so that the discoloration problems they cause do not exist in the distribution system.(C) All processes involving exposure of the water to atmospheric contamination shall provide for subsequent disinfection of the water ahead of ground storage tanks. Likewise, all exposure of water to atmospheric contamination shall be accomplished in a manner such that insects, birds, and other foreign materials will be excluded from the water. Aerators and all other such openings shall be screened with 16-mesh or finer corrosion-resistant screen.(D) If reverse osmosis or nanofiltration membrane systems are used, the design shall conform to the requirements in paragraph (9) of this subsection.(3) Any proposed change in the extent of water treatment required will be determined on the basis of geological data, well construction features, nearby sources of contamination, and on qualitative and quantitative microbiological and chemical analyses.(4) Appropriate laboratory facilities shall be provided for controls as well as to check the effectiveness of disinfection or any other treatment processes employed.(5) All plant piping shall be constructed to minimize leakage.(6) All groundwater systems shall provide sampling taps for raw water, treated water, and at a point representing water entering the distribution system at every entry point.(7) Air release devices shall be installed in such a manner as to preclude the possibility of submergence or possible entrance of contaminants. In this respect, all openings to the atmosphere shall be covered with 16-mesh or finer corrosion-resistant screening material or an equivalent acceptable to the executive director.(8) The executive director may require 4-log removal or inactivation of viruses based on raw water sampling results required by §290.116 of this title (relating to Groundwater Corrective Actions and Treatment Techniques).(9) Reverse osmosis or nanofiltration membrane systems used for the treatment of primary and secondary contaminants defined in Subchapter F of this chapter (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Systems), must meet the design criteria in subparagraphs (A) - (L) of this paragraph.(A) The design for all reverse osmosis and nanofiltration membrane systems must be in accordance with the findings of the engineering report. Variations from the engineering report must be explained and shall not compromise public health. Minimum engineering report requirements are found in §290.39(e)(1) and (6) of this title (relating to General Provisions).(B) The reverse osmosis and nanofiltration membrane systems must be designed to ensure adequate cleaning of the membrane system.(C) The reverse osmosis or nanofiltration membrane systems must be designed to operate at flux rates which assure effective filtration at all times based on at least one of the following:(i) manufacturer's computer models for new and end-of-life membranes;(ii) site-specific pilot study;(iii) comparable design data from an alternative site; or(iv) the manufacturer's allowable operating parameters, if the membrane unit's capacity is rated less than 300 gallons per minute.(D) Pretreatment shall be provided such that the feed water quality to the membrane units shall meet the minimum allowable requirements of the membrane manufacturer. Pretreatment processes shall be sized correctly for the flow of the plant, and the components and chemicals used for pretreatment in contact with the water must conform to American National Standards Institute/NSF International (ANSI/NSF) Standard 60 for Drinking Water Treatment Chemicals or ANSI/NSF Standard 61 for Drinking Water System Components. Other pretreatment processes will be reviewed on an individual basis in accordance with the innovative/alternate treatment requirements specified in subsection (g) of this section. Acceptable pretreatment techniques include:(i) bags, cartridge filters, or screens for particulate removal;(ii) chemical addition that will not adversely affect the reverse osmosis or nanofiltration membrane;(iii) filters for iron and manganese removal in accordance with paragraph (2)(A) of this subsection;(iv) aeration or degasification; and(v) ion exchange softening.(E) The treatment plant must include post-treatment facilities for corrosivity control, re-mineralization and the removal of dissolved gases, such as carbon dioxide and hydrogen sulfide, if necessary to meet the system's water quality goals. The treatment must be sized correctly for the flow of the plant, and the components and chemicals used for treatment must conform to ANSI/NSF Standard 60 for Drinking Water Treatment Chemicals or ANSI/NSF Standard 61 for Drinking Water System Components.(F) Pipes and pipe galleries shall meet the minimum requirements specified in subsection (d)(12) and (13) of this section.(G) Each reverse osmosis or nanofiltration membrane unit shall be equipped to measure conductivity or total dissolved solids in the feed and the permeate water.(H) Chemical storage and chemical feed facilities shall comply with subsection (f) of this section.(I) Provide cross-connection protection for common piping used for cleaning and normal production modes.(J) Provide flow meters on the pipes for feed, permeate, and concentrate water. Additional metering devices shall be provided as appropriate to monitor the flow rate through specific treatment processes. Metering devices shall be located to facilitate use and to assist in the determination of chemical dosages, the accumulation of water production data, and the operation of plant facilities.(K) The water system must provide pressure measuring and recording devices before and after each membrane stage.(L) The water system must provide equipment to monitor the temperature of the water. The temperature of the water must be measured using a thermometer or thermocouple with a minimum accuracy of plus or minus 0.5 degrees Celsius.(c) Groundwater under the direct influence of surface water, springs, and other water sources.(1) Water obtained from springs, infiltration galleries, wells in fissured areas, wells in carbonate rock formations, or wells that do not penetrate impermeable strata or any other source subject to surface or near surface contamination of recent origin shall be evaluated for the provision of treatment facilities. Groundwater under the direct influence of surface water, as defined in §290.38 of this title (relating to Definitions), shall be provided minimum treatment as required by the executive director under this subsection or subsection (d) of this section, as applicable. Minimum treatment shall consist of coagulation with direct filtration and adequate disinfection. In all cases, the treatment process shall be designed to achieve at least a 2-log removal of Cryptosporidium oocysts, a 3-log removal or inactivation of Giardia cysts, and a 4-log removal or inactivation of viruses before the water is supplied to any consumer. The executive director may require additional levels of treatment in cases of poor source water quality. Based on raw water monitoring results, the executive director may require additional levels of treatment for Cryptosporidium treatment as specified in §290.111 of this title (relating to Surface Water Treatment).(A) Filters provided for turbidity and microbiological quality control shall conform to the requirements of subsection (d)(11) of this section.(B) All processes involving exposure of the water to atmospheric contamination shall provide for subsequent disinfection of the water ahead of ground storage tanks. Likewise, all exposure of water to atmospheric contamination shall be accomplished in a manner such that insects, birds, and other foreign materials will be excluded from the water. Aerators and all other such openings shall be screened with 16-mesh or finer corrosion-resistant screen.(2) Any proposed change in the extent of water treatment required will be determined on the basis of geological data, well construction features, nearby sources of contamination, and qualitative and quantitative microbiological and chemical analyses.(3) Appropriate laboratory facilities shall be provided for controls as well as for checking the effectiveness of disinfection or any other treatment processes employed.(4) All plant piping shall be constructed to minimize leakage. No cross-connection or interconnection shall be permitted to exist between a conduit carrying potable water and another conduit carrying raw water or water in a prior stage of treatment.(5) All systems using springs and other water sources shall provide sampling taps for raw water, treated water, and at a point representing water entering the distribution system at every entry point.(6) Return of the decanted water or sludge to the treatment process shall be adequately controlled so that there will be a minimum of interference with the treatment process and shall conform to the applicable requirements of subsection (d)(3) of this section. Systems that do not comply with the provisions of subsection (d)(3) of this section commit a treatment technique violation and must notify their customers in accordance with the requirements of §290.122(b) of this title (relating to Public Notification).(7) Air release devices on treated waterlines shall be installed in such a manner as to preclude the possibility of submergence or possible entrance of contaminants. In this respect, all openings to the atmosphere shall be covered with 16-mesh or finer corrosion-resistant screening material or an equivalent acceptable to the executive director. (8) Reverse osmosis and nanofiltration membrane systems not provided for microbiological quality control shall conform to the requirements of subsection (b) of this section.(d) Surface water.(1) All water secured from surface sources shall be given complete treatment at a plant which provides facilities for pretreatment disinfection, taste and odor control, continuous coagulation, sedimentation, filtration, covered clearwell storage, and terminal disinfection of the water with chlorine or suitable chlorine compounds. In all cases, the treatment process shall be designed to achieve at least a 2-log removal of Cryptosporidium oocysts, a 3-log removal or inactivation of Giardia cysts, and a 4-log removal or inactivation of viruses before the water is supplied to any consumer. The executive director may require additional levels of treatment in cases of poor source water quality. Based on raw water monitoring results, the executive director may require additional levels of treatment for Cryptosporidium treatment as specified in §290.111 of this title.(2) All plant piping shall be constructed so as to be thoroughly tight against leakage. No cross-connection or interconnection shall be permitted to exist in a filtration plant between a conduit carrying filtered or post-chlorinated water and another conduit carrying raw water or water in any prior stage of treatment.(A) Vacuum breakers must be provided on each hose bibb within the plant facility.(B) No conduit or basin containing raw water or any water in a prior stage of treatment shall be located directly above, or be permitted to have a single common partition wall with another conduit or basin containing finished water.(C) Make-up water supply lines to chemical feeder solution mixing chambers shall be provided with an air gap or other acceptable backflow prevention device.(D) Filters shall be located so that common walls will not exist between them and aerators, mixing and sedimentation basins or clearwells. This rule is not strictly applicable, however, to partitions open to view and readily accessible for inspection and repair.(E) Filter-to-waste connections, if included, shall be provided with an air gap connection to waste.(F) Air release devices on treated waterlines shall be installed in such a manner as to preclude the possibility of submergence or possible entrance of contaminants. In this respect, all openings to the atmosphere shall be covered with 16-mesh or finer corrosion-resistant screening material or an equivalent acceptable to the executive director. (3) Return of the decanted water or solids to the treatment process shall be adequately controlled so that there will be a minimum of interference with the treatment process. Systems that do not comply with the provisions of this paragraph commit a treatment technique violation and must notify their customers in accordance with the requirements of §290.122(b) of this title.(A) Unless the executive director has approved an alternate recycling location, spent backwash water and the liquids from sludge settling lagoons, spent backwash water tanks, sludge thickeners, and similar dewatering facilities shall be returned to the raw waterline upstream of the raw water sample tap and coagulant feed point. The blended recycled liquids shall pass through all of the major unit processes at the plant.(B) Recycle facilities shall be designed to minimize the magnitude and impact of hydraulic surges that occur during the recycling process.(C) Solids produced by dewatering facilities such as sludge lagoons, sludge thickeners, centrifuges, mechanical presses, and similar devices shall not be returned to the treatment plant without the prior approval of the executive director.(4) Reservoirs for pretreatment or selective quality control shall be provided where complete treatment facilities fail to operate satisfactorily at times of maximum turbidities or other abnormal raw water quality conditions exist. Recreational activities at such reservoirs shall be prohibited.(5) Flow-measuring devices shall be provided to measure the raw water supplied to the plant, the recycled decant water, the treated water used to backwash the filters, and the treated water discharged from the plant. Additional metering devices shall be provided as appropriate to monitor the flow rate through specific treatment processes. Metering devices shall be located to facilitate use and to assist in the determination of chemical dosages, the accumulation of water production data, and the operation of plant facilities.(6) Chemical storage facilities shall comply with applicable requirements in subsection (f)(1) of this section.(7) Chemical feed facilities shall comply with the applicable requirements in subsection (f)(2) of this section.(8) Flash mixing equipment shall be provided.(A) Plants with a design capacity greater than 3.0 million gallons per day (MGD) must provide at least one hydraulic mixing unit or at least two sets of mechanical flash mixing equipment designed to operate in parallel. Public water systems with other surface water treatment plants, interconnections with other systems, or wells that can meet the system's average daily demand are exempt from the requirement for redundant mechanical flash mixing equipment.(B) Flash mixing equipment shall have sufficient flexibility to ensure adequate dispersion and mixing of coagulants and other chemicals under varying raw water characteristics and raw water flow rates.(9) Flocculation equipment shall be provided.(A) Plants with a design capacity greater than 3.0 MGD must provide at least two sets of flocculation equipment which are designed to operate in parallel. Public water systems with other surface water treatment plants, interconnections with other systems, or wells that can meet the system's average daily demand are exempt from the requirement for redundant flocculation equipment.(B) Flocculation facilities shall be designed to provide adequate time and mixing intensity to produce a settleable floc under varying raw water characteristics and raw water flow rates.(i) Flocculation facilities for straight-flow and up-flow sedimentation basins shall provide a minimum theoretical detention time of at least 20 minutes when operated at their design capacity. Flocculation facilities constructed prior to October 1, 2000, are exempt from this requirement if the settled water turbidity of each sedimentation basin remains below 10.0 nephelometric turbidity units and the treatment plant meets with turbidity requirements of §290.111 of this title.(ii) The mixing intensity in multiple-stage flocculators shall decrease as the coagulated water passes from one stage to the next.(C) Coagulated water or water from flocculators shall flow to sedimentation basins in such a manner as to prevent destruction of floc. Piping, flumes, and troughs shall be designed to provide a flow velocity of 0.5 to 1.5 feet per second. Gates, ports, and valves shall be designed at a maximum flow velocity of 4.0 feet per second in the transfer of water between units.(10) Clarification facilities shall be provided.(A) Plants with a design capacity greater than 3.0 MGD must provide at least two sedimentation basins or clarification units which are designed to operate in parallel. Public water systems with other surface water treatment plants, interconnections with other systems, or wells that can meet the system's average daily demand are exempt from the requirement for redundant sedimentation basins or clarification units.(B) The inlet and outlet of clarification facilities shall be designed to prevent short-circuiting of flow or the destruction of floc.(C) Clarification facilities shall be designed to remove flocculated particles effectively.(i) When operated at their design capacity, basins for straight-flow or up-flow sedimentation of coagulated waters shall provide either a theoretical detention time of at least six hours in the flocculation and sedimentation chambers or a maximum surface overflow rate of 0.6 gpm/sq ft of surface area in the sedimentation chamber.(ii) When operated at their design capacity, basins for straight-flow or up-flow sedimentation of softened waters shall provide either a theoretical detention time of at least 4.5 hours in the flocculation and sedimentation chambers or a maximum surface overflow rate of 1.0 gpm/sq ft of surface area in the sedimentation chamber.(iii) When operated at their design capacity, sludge-blanket and solids-recirculation clarifiers shall provide either a theoretical detention time of at least two hours in the flocculation and sedimentation chambers or a maximum surface overflow rate of 1.0 gpm/sq ft in the settling chamber.(iv) A side wall water depth of at least 12 feet shall be provided in clarification basins that are not equipped with mechanical sludge removal facilities.(v) The effective length of a straight-flow sedimentation basin shall be at least twice its effective width.(D) Clarification facilities shall be designed to prevent the accumulation of settled solids.(i) At treatment plants with a single clarification basin, facilities shall be provided to drain the basin within six hours. In the event that the plant site topography is such that gravity draining cannot be realized, a permanently installed electric-powered pump station shall be provided to dewater the basin. Public water systems with other potable water sources that can meet the system's average daily demand are exempt from this requirement.(ii) Facilities for sludge removal shall be provided by mechanical means or by hopper-bottomed basins with valves capable of complete draining of the units.(11) Gravity or pressure type filters shall be provided.(A) The use of pressure filters shall be limited to installations with a treatment capacity of less than 0.50 MGD.(B) Filtration facilities shall be designed to operate at filtration rates which assure effective filtration at all times.(i) The design capacity of gravity rapid sand filters shall not exceed a maximum filtration rate of 2.0 gpm/sq ft. At the beginning of filter runs for declining rate filters, a maximum filtration rate of 3.0 gpm/sq ft is allowed.(ii) Where high-rate gravity filters are used, the design capacity shall not exceed a maximum filtration rate of 5.0 gpm/sq ft. At the beginning of filter runs for declining rate filters, a maximum filtration rate of 6.5 gpm/sq ft is allowed.(iii) The design capacity of pressure filters shall not exceed a maximum filtration rate of 2.0 gpm/sq ft with the largest filter off-line.(iv) Except as provided in clause (vi) of this subparagraph, any surface water treatment plant that provides, or is being designed to provide, less than 7.5 MGD must be able to meet either the maximum daily demand or the minimum required 0.6 gpm per connection, whichever is larger, with all filters on-line.(v) Any surface water treatment plant that provides, or is being designed to provide, 7.5 MGD or more must be able to meet either the maximum daily demand or the minimum required 0.6 gpm per connection, whichever is larger, with the largest filter off-line.(vi) Any surface water treatment plant that uses pressure filters must be able to meet either the maximum daily demand or the minimum required 0.6 gpm per connection, whichever is larger, with the largest filter off-line.(C) The depth and condition of the media and support material shall be sufficient to provide effective filtration.(i) The filtering material shall conform to American Water Works Association (AWWA) standards and be free from clay, dirt, organic matter, and other impurities.(ii) The grain size distribution of the filtering material shall be as prescribed by AWWA standards.(iii) The depth of filter sand, anthracite, granular activated carbon, or other filtering materials shall be 24 inches or greater and provide an L/d ratio, as defined in §290.38 of this title, of at least 1,000.(I) Rapid sand filters typically contain a minimum of eight inches of fine sand with an effective size of 0.35 to 0.45 millimeter (mm), eight inches of medium sand with an effective size of 0.45 to 0.55 mm, and eight inches of coarse sand with an effective size of 0.55 to 0.65 mm. The uniformity coefficient of each size range should not exceed 1.6.(II) High-rate dual media filters typically contain a minimum of 12 inches of sand with an effective size of 0.45 to 0.55 mm and 24 inches of anthracite with an effective size of 0.9 to 1.1 mm. The uniformity coefficient of each material should not exceed 1.6.(III) High-rate multi-media filters typically contain a minimum of three inches of garnet media with an effective size of 0.2 to 0.3 mm, nine inches of sand with an effective size of 0.5 to 0.6 mm, and 24 inches of anthracite with an effective size of 0.9 to 1.1 mm. The uniformity coefficient of each size range should not exceed 1.6.(IV) High-rate mono-media anthracite or granular activated carbon filters typically contain a minimum of 48 inches of anthracite or granular activated carbon with an effective size of 1.0 to 1.2 mm. The uniformity coefficient of each size range should not exceed 1.6.(iv) Under the filtering material, at least 12 inches of support gravel shall be placed varying in size from 1/16 inch to 2.5 inches. The gravel may be arranged in three to five layers such that each layer contains material about twice the size of the material above it. Other support material may be approved on an individual basis.(D) The filter shall be provided with facilities to regulate the filtration rate.(i) With the exception of declining rate filters, each filter unit shall be equipped with a manually adjustable rate-of-flow controller with rate-of-flow indication or flow control valves with indicators.(ii) Each declining rate filter shall be equipped with a rate-of-flow limiting device or an adjustable flow control valve with a rate-of-flow indicator.(iii) The effluent line of each filter installed after January 1, 1996, must be equipped with a slow opening valve or another means of automatically preventing flow surges when the filter begins operation.(E) The filters shall be provided with facilities to monitor the performance of the filter. Monitoring devices shall be designed to provide the ability to measure and record turbidity as required by §290.111 of this title.(i) Each filter shall be equipped with a sampling tap so that the effluent turbidity of the filter can be individually monitored. (ii) Each filter operated by a public water system that serves fewer than 10,000 people shall be equipped with an on-line turbidimeter and recorder which will allow the operator to measure and record the turbidity at 15-minute intervals. The executive director may allow combined filter effluent monitoring in lieu of individual filter effluent monitoring under the following conditions:(I) The public water system has only two filters that were installed prior to October 1, 2000, and were never equipped with individual on-line turbidimeters and recorders; and(II) The plant is equipped with an on-line turbidimeter and recorder which will allow the operator to measure and record the turbidity level of the combined filter effluent at a location prior to clearwell storage at 15-minute intervals.(iii) Each filter operated by a public water system that serves at least 10,000 people shall be equipped with an on-line turbidimeter and recorder which will allow the operator to measure and record the turbidity at 15-minute intervals.(iv) Each filter installed after October 1, 2000, shall be equipped with an on-line turbidimeter and recorder which will allow the operator to determine the turbidity at 15-minute intervals.(v) Each filter unit that is not equipped with an on-line turbidimeter and recorder shall be equipped with a device to indicate loss of head through the filter. In lieu of loss-of-head indicators, declining rate filter units may be equipped with rate-of-flow indicators. (F) Filters shall be designed to ensure adequate cleaning during the backwash cycle.(i) Only filtered water shall be used to backwash the filters. This water may be supplied by elevated wash water tanks, by the effluent of other filters, or by pumps which take suction from the clearwell and are provided for backwashing filters only. For installations having a treatment capacity no greater than 150,000 gallons per day, water for backwashing may be secured directly from the distribution system if proper controls and rate-of-flow limiters are provided.(ii) The rate of filter backwashing shall be regulated by a rate-of-flow controller or flow control valve.(iii) The rate of flow of backwash water shall not be less than 20 inches vertical rise per minute (12.5 gpm/sq ft) and usually not more than 35 inches vertical rise per minute (21.8 gpm/sq ft).(iv) The backwash facilities shall be capable of expanding the filtering bed during the backwash cycle.(I) For facilities equipped with air scour, the backwash facilities shall be capable of expanding the filtering bed at least 15% during the backwash cycle.(II) For mixed-media filters without air scour, the backwash facilities shall be capable of expanding the filtering bed at least 25% during the backwash cycle.(III) For mono-media sand filters without air scour, the backwash facilities shall be capable of expanding the filtering bed at least 40% during the backwash cycle.(v) The filter freeboard in inches shall exceed the wash rate in inches of vertical rise per minute.(vi) When used, surface filter wash systems shall be installed with an atmospheric vacuum breaker or a reduced pressure principle backflow assembly in the supply line. If an atmospheric vacuum breaker is used, it shall be installed in a section of the supply line through which all the water passes and which is located above the overflow level of the filter.(vii) Gravity filters installed after January 1, 1996, shall be equipped with air scour backwash or surface wash facilities.(G) Each filter installed after October 1, 2000, shall be equipped with facilities that allow the filter to be completely drained without removing other filters from service.(12) Pipe galleries shall provide ample working room, good lighting, and good drainage provided by sloping floors, gutters, and sumps. Adequate ventilation to prevent condensation and to provide humidity control is also required.(13) The identification of influent, effluent, waste backwash, and chemical feed lines shall be accomplished by the use of labels or various colors of paint. Where labels are used, they shall be placed along the pipe at no greater than five-foot intervals. Color coding must be by solid color or banding. If bands are used, they shall be placed along the pipe at no greater than five-foot intervals. (A) A plant that is built or repainted after October 1, 2000, must use the following color code. The color code to be used in labeling pipes is as follows:Attached Graphic(B) A plant that was repainted before October 1, 2000, may use an alternate color code. The alternate color code must provide clear visual distinction between process streams.(C) The system must maintain clear, current documentation of its color code in a location easily accessed by all personnel.(14) All surface water treatment plants shall provide sampling taps for raw, settled, individual filter effluent, and clearwell discharge. Additional sampling taps shall be provided as appropriate to monitor specific treatment processes.(15) An adequately equipped laboratory shall be available locally so that daily microbiological and chemical tests can be conducted. (A) For plants serving 25,000 persons or more, the local laboratory used to conduct the required daily microbiological analyses must be accredited by the executive director to conduct coliform analyses.(B) For plants serving populations of less than 25,000, the facilities for making microbiological tests may be omitted if the required microbiological samples can be submitted to a laboratory accredited by the executive director on a timely basis.(C) All surface water treatment plants shall be provided with equipment for making at least the following determinations:(i) pH;(ii) temperature;(iii) disinfectant residual;(iv) alkalinity;(v) turbidity;(vi) jar tests for determining the optimum coagulant dose; and(vii) other tests deemed necessary to monitor specific water quality problems or to evaluate specific water treatment processes. (D) Each surface water treatment plant that uses chlorine dioxide shall provide testing equipment for measuring chlorine dioxide and chlorite levels.(E) Each surface water treatment plant that uses sludge-blanket clarifiers shall be equipped with facilities to monitor the depth of the sludge blanket.(F) Each surface water treatment plant that uses solids-recirculation clarifiers shall be equipped with facilities to monitor the solids concentration in the slurry.(16) Each surface water treatment plant shall be provided with a computer and software for recording performance data, maintaining records, and submitting reports to the executive director. The executive director may allow a water system to locate the computer at a site other than the water treatment plant only if performance data can be reliably transmitted to the remote location on a real-time basis, the plant operator has access to the computer at all times, and performance data is readily accessible to agency staff during routine and special investigations.(17) Reverse osmosis and nanofiltration membrane systems not provided for microbiological quality control shall conform to the requirements of subsection (b)(9) of this section.(e) Disinfection.(1) All water obtained from surface sources or groundwater sources that are under the direct influence of surface water must be disinfected in a manner consistent with the requirements of §290.110 of this title.(2) All groundwater must be disinfected prior to distribution and in a manner consistent with the requirements of §290.110 of this title. The point of application must be ahead of the water storage tank(s) if storage is provided prior to distribution. Permission to use alternate disinfectant application points must be obtained in writing from the executive director.(3) Disinfection equipment shall be selected and installed so that continuous and effective disinfection can be secured under all conditions.(A) Disinfection equipment shall have a capacity at least 50% greater than the highest expected dosage to be applied at any time. It shall be capable of satisfactory operation under every prevailing hydraulic condition.(B) Automatic proportioning of the disinfectant dosage to the flow rate of the water being treated shall be provided at plants where the treatment rate varies automatically and at all plants where the treatment rate varies more than 50% above or below the average flow. Manual control shall be permissible only if an operator is always on hand to make adjustments promptly.(C) All disinfecting equipment in surface water treatment plants shall include at least one functional standby unit of each capacity for ensuring uninterrupted operation. Common standby units are permissible but, generally, more than one standby unit must be provided because of the differences in feed rates or the physical state in which the disinfectants are being fed (solid, liquid, or gas).(D) Facilities shall be provided for determining the amount of disinfectant used daily and the amount of disinfectant remaining for use.(E) When used, solutions of calcium hypochlorite shall be prepared in a separate mixing tank and allowed to settle so that only a clear supernatant liquid is transferred to the hypochlorinator container.(F) Provisions shall be made for both pretreatment disinfection and post-disinfection in all surface water treatment plants. Additional application points shall be installed if they are required to adequately control the quality of the treated water.(G) The use of disinfectants other than free chlorine and chloramines will be considered on a case-by-case basis under the exception guidelines of §290.39(l) of this title. If water containing chloramines and water containing free chlorine are blended, then a case-by-case review under §290.39(l) of this title will be required. (4) Systems that use chlorine gas must ensure that the risks associated with its use are limited as follows.(A) When chlorine gas is used, a full-face self-contained breathing apparatus or supplied air respirator that meets Occupational Safety and Health Administration (OSHA) standards for construction and operation, and a small bottle of fresh ammonia solution (or approved equal) for testing for chlorine leakage shall be readily accessible outside the chlorinator room and immediately available to the operator in the event of an emergency.(B) Housing for gas chlorination equipment and cylinders of chlorine shall be in separate buildings or separate rooms with impervious walls or partitions separating all mechanical and electrical equipment from the chlorine facilities. Housing shall be located above ground level as a measure of safety. Equipment and cylinders may be installed on the outside of the buildings when protected from adverse weather conditions and vandalism.(C) Adequate ventilation, which includes both high level and floor level screened vents, shall be provided for all enclosures in which gas chlorine is being stored or fed. Enclosures containing more than one operating 150-pound cylinder of chlorine shall also provide forced air ventilation which includes: screened and louvered floor level and high level vents; a fan which is located at and draws air in through the top vent and discharges to the outside atmosphere through the floor level vent; and a fan switch located outside the enclosure. Alternately, systems may install negative pressure ventilation as long as the facilities also have gas containment and treatment as prescribed by the current International Fire Code (IFC).(5) Hypochlorination solution containers and pumps must be housed in a secure enclosure to protect them from adverse weather conditions and vandalism. The solution container top must be completely covered to prevent the entrance of dust, insects, and other contaminants.(6) Where anhydrous ammonia feed equipment is utilized, it must be housed in a separate enclosure equipped with both high and low level ventilation to the outside atmosphere. The enclosure must be provided with forced air ventilation which includes: screened and louvered floor level and high level vents; a fan which is located at and draws air in through the floor vent and discharges through the top vent; and a fan switch located outside the enclosure. Alternately, systems may install negative pressure ventilation as long as the facilities also have gas containment and treatment as prescribed by the current IFC.(7) Chloramine disinfection shall be performed in a manner which assures that the proper chlorine to ammonia (as nitrogen) ratio is achieved in order to maintain a monochloramine residual and limit nitrification.(A) The order of chlorine and ammonia injection must be accomplished in a manner which allows inactivation of viruses and oxidation of cyanide.(i) When chlorine is injected upstream of any other disinfectant, the ammonia injection point must be downstream of the chlorine injection point.(ii) When chlorine and ammonia are added to distribution water that has a chloramine residual, ammonia should be added first.(iii) When chlorine and ammonia are added to distribution water that has a free chlorine residual, chlorine should be added first.(B) Mixing shall be provided to disperse chemicals.(C) Sampling taps must be provided at locations that allow for chlorine and ammonia to be added to the water to form monochloramine as the primary chloramine species. These locations must be listed in the system's monitoring plan as described in §290.121 of this title (relating to Monitoring Plans). Sample taps must be provided as follows:(i) upstream of the chlorine or ammonia chemical injection point, whichever is furthest upstream;(ii) between the addition of the chloramine chemicals at chloramination facilities submitted for plan review after December 31, 2015. For these facilities, an installation without this sample tap may be approved if an acceptable technical reason is described in the plan review documents. Technical reasons, such as disinfection byproduct control, must be supported by bench scale sampling results. Other technical reasons, such as membrane integrity, must be supported by documentation; and(iii) at a point after mixing to be able to measure fully-formed monochloramine levels.(D) When using chloramines, the feed and storage must be designed as described in subsection (f) of this section, regardless of water source.(E) When using chloramines, the public water systems shall provide equipment for making at least the following determinations for purposes of complying with the requirements in §290.110 of this title:(i) free ammonia (as nitrogen);(ii) monochloramine;(iii) total chlorine;(iv) free chlorine; and(v) nitrite and nitrate (both as nitrogen). The public water systems must either obtain equipment for measuring nitrite and nitrate or identify an accredited laboratory that can perform nitrite and nitrate analysis and can provide results to the public water systems within 48 hours of sample delivery.(f) Water treatment plant chemical storage and feed facilities.(1) Chemical storage facilities shall be designed to ensure a reliable supply of chemicals to the feeders, minimize the possibility and impact of accidental spills, and facilitate good housekeeping. (A) Bulk storage facilities at the plant shall be adequate to store at least a 15-day supply of all chemicals needed to comply with minimum treatment technique and maximum contaminant level (MCL) requirements. The capacity of these bulk storage facilities shall be based on the design capacity of the treatment plant. However, the executive director may require a larger stock of chemicals based on local resupply ability.(B) Day tanks shall be provided to minimize the possibility of severely overfeeding liquid chemicals from bulk storage facilities. Day tanks will not be required if adequate process control instrumentation and procedures are employed to prevent chemical overfeed incidents.(C) Every chemical bulk storage facility and day tank shall have a label that identifies the facility's or tank's contents and a device that indicates the amount of chemical remaining in the facility or tank.(D) Dry chemicals shall be stored off the floor in a dry room that is located above ground and protected against flooding or wetting from floors, walls, and ceilings.(E) Bulk storage facilities and day tanks must be designed to minimize the possibility of leaks and spills.(i) The materials used to construct bulk storage and day tanks must be compatible with the chemicals being stored and resistant to corrosion.(ii) Except as provided in this clause, adequate containment facilities shall be provided for all liquid chemical storage tanks.(I) Containment facilities for a single container or for multiple interconnected containers must be large enough to hold the maximum amount of chemical that can be stored with a minimum freeboard of six vertical inches or to hold 110% of the total volume of the container(s), whichever is less.(II) Common containment for multiple containers that are not interconnected must be large enough to hold the volume of the largest container with a minimum freeboard of six vertical inches or to hold 110% of the total volume of the container(s), whichever is less.(III) The materials used to construct containment structures must be compatible with the chemicals stored in the tanks.(IV) Incompatible chemicals shall not be stored within the same containment structure.(V) No containment facilities are required for hypochlorite solution containers that have a capacity of 55 gallons or less.(VI) On a site-specific basis, the executive director may approve the use of double-walled tanks in lieu of separate containment facilities.(F) Chemical transfer pumps and control systems must be designed to minimize the possibility of leaks and spills.(G) Piping, pumps, and valves used for chemical storage and transfer must be compatible with the chemical being fed.(2) Chemical feed and metering facilities shall be designed so that chemicals shall be applied in a manner which will maximize reliability, facilitate maintenance, and ensure optimal finished water quality.(A) Each chemical feeder that is needed to comply with a treatment technique or MCL requirement shall have a standby or reserve unit. Common standby feeders are permissible, but generally, more than one standby feeder must be provided due to the incompatibility of chemicals or the state in which they are being fed (solid, liquid, or gas).(B) Chemical feed equipment shall be sized to provide proper dosage under all operating conditions.(i) Devices designed for determining the chemical feed rate shall be provided for all chemical feeders.(ii) The capacity of the chemical feeders shall be such that accurate control of the dosage can be achieved at the full range of feed rates expected to occur at the facility.(iii) Chemical feeders shall be provided with tanks for chemical dissolution when applicable.(C) Chemical feeders, valves, and piping must be compatible with the chemical being fed.(D) Chemical feed systems shall be designed to minimize the possibility of leaks and spills and provide protection against backpressure and siphoning.(E) If enclosed feed lines are used, they shall be designed and installed so as to prevent clogging and be easily maintained. (F) Dry chemical feeders shall be located in a separate room that is provided with facilities for dust control.(G) Coagulant feed systems shall be designed so that coagulants are applied to the water prior to or within the mixing basins or chambers so as to permit their complete mixing with the water.(i) Coagulant feed points shall be located downstream of the raw water sampling tap.(ii) Coagulants shall be applied continuously during treatment plant operation.(H) Chlorine feed units, ammonia feed units, and storage facilities shall be separated by solid, sealed walls.(I) Chemical application points shall be provided to achieve acceptable finished water quality, adequate taste and odor control, corrosion control, and disinfection.(g) Other treatment processes. Innovative/alternate treatment processes will be considered on an individual basis, in accordance with §290.39(l) of this title. Where innovative/alternate treatment systems are proposed, the licensed professional engineer must provide pilot test data or data collected at similar full-scale operations demonstrating that the system will produce water that meets the requirements of Subchapter F of this chapter. Pilot test data must be representative of the actual operating conditions which can be expected over the course of the year. The executive director may require a pilot study protocol to be submitted for review and approval prior to conducting a pilot study to verify compliance with the requirements of §290.39(l) of this title and Subchapter F of this chapter. The executive director may require proof of a one-year manufacturer's performance warrantee or guarantee assuring that the plant will produce treated water which meets minimum state and federal standards for drinking water quality.(1) Package-type treatment systems and their components shall be subject to all applicable design criteria in this section.(2) Bag and cartridge filtration systems or modules installed or replaced after April 1, 2012, and used for microbiological treatment, can receive up to 3.0-log Giardia removal credit, up to 2.0-log Cryptosporidium removal credit for individual bag or cartridge filters, and up to 2.5-log Cryptosporidium removal credit for bag or cartridge filters operated in series only if the cartridges or bags meet the criteria in subparagraphs (A) - (C) of this paragraph.(A) The filter system must treat the entire plant flow.(B) To be eligible for this credit, systems must receive approval from the executive director based on the results of challenge testing that is conducted according to the criteria established by 40 Code of Federal Regulations (CFR) §141.719(a) and the executive director.(i) A factor of safety equal to 1.0-log for individual bag or cartridge filters and 0.5-log for bag or cartridge filters in series must be applied to challenge testing results to determine removal credit.(ii) Challenge testing must be performed on full-scale bag or cartridge filters, and the associated filter housing or pressure vessel, that are identical in material and construction to the filters and housings the system will use for removal of Cryptosporidium and Giardia. (iii) Bag or cartridge filters must be challenge tested in the same configuration that the system will use, either as individual filters or as a series configuration of filters.(iv) Systems may use results from challenge testing conducted prior to January 5, 2006, if prior testing was consistent with 40 CFR §141.719, submitted by the system's licensed professional engineer, and approved by the executive director.(v) If a previously tested filter is modified in a manner that could change the removal efficiency of the filter product line, additional challenge testing to demonstrate the removal efficiency of the modified filter must be conducted and results submitted to the executive director for approval.(C) Pilot studies must be conducted using filters that will meet the requirements of this section.(3) Membrane filtration systems or modules installed or replaced after April 1, 2012, and used for microbiological treatment, can receive Cryptosporidium and Giardia removal credit for membrane filtration only if the systems or modules meet the criteria in subparagraphs (A) - (F) of this paragraph.(A) The membrane module used by the system must undergo challenge testing to evaluate removal efficiency. Challenge testing must be conducted according to the criteria established by 40 CFR §141.719(b)(2) and the executive director.(i) All membrane module challenge test protocols and results, the protocol for calculating the representative Log Removal Value (LRV) for each membrane module, the removal efficiency, calculated results of Membrane LRVC-Test , and the non-destructive performance test with its Quality Control Release Value (QCRV) must be submitted to the executive director for review and approval prior to beginning a membrane filtration pilot study at a public water system.(ii) Challenge testing must be conducted on either a full-scale membrane module identical in material and construction to the membrane modules to be used in the system's treatment facility, or a smaller-scale membrane module identical in material and similar in construction to the full-scale module if approved by the executive director.(iii) Systems may use data from challenge testing conducted prior to January 5, 2006, if prior testing was consistent with 40 CFR §141.719, submitted by the system's licensed professional engineer, and approved by the executive director.(iv) If a previously tested membrane is modified in a manner that could change the removal efficiency of the membrane product line or the applicability of the non-destructive performance test and associated QCRV, additional challenge testing to demonstrate the removal efficiency of the modified membrane and determine a new QCRV for the modified membrane must be conducted and results submitted to the executive director for approval.(B) The membrane system must be designed to conduct and record the results of direct integrity testing in a manner that demonstrates a removal efficiency equal to or greater than the removal credit awarded to the membrane filtration system approved by the executive director and meets the requirements in clauses (i) and (ii) of this subparagraph.(i) The design must provide for direct integrity testing of each membrane unit.(ii) The design must provide direct integrity testing that has a resolution of 3 micrometers or less.(iii) The design must provide direct integrity testing with sensitivity sufficient to verify the log removal credit approved by the executive director. Sensitivity is determined by the criteria in 40 CFR §141.719(b)(3)(iii).(iv) The executive director may reduce the direct integrity testing requirements for membrane units.(C) The membrane system must be designed to conduct and record continuous indirect integrity monitoring on each membrane unit. The turbidity of the water produced by each membrane unit must be measured using the Hach FilterTrak Method 10133. The executive director may approve the use of alternative technology to monitor the quality of the water produced by each membrane unit.(D) The level of removal credit approved by the executive director shall not exceed the lower of:(i) the removal efficiency demonstrated during challenge testing conducted under the conditions in subparagraph (A) of this paragraph; or(ii) the maximum removal efficiency that can be verified through direct integrity testing used with the membrane filtration process under the conditions in subparagraph (B) of this paragraph.(E) Pilot studies must be conducted using membrane modules that will meet the requirements of this section.(F) Membrane systems must be designed so that membrane units' feed water, filtrate, backwash supply, waste, and chemical cleaning piping shall have cross-connection protection to prevent chemicals from all chemical cleaning processes from contaminating other membrane units in other modes of operation. This may be accomplished by the installation of a double block and bleed valving arrangement, a removable spool system, or other alternative methods approved by the executive director.(4) Bag, cartridge, or membrane filtration systems or modules installed or replaced before April 1, 2012, and used for microbiological treatment, can receive up to a 2.0-log removal credit for Cryptosporidium and up to a 3.0-log removal credit for Giardia based on site-specific pilot study results, design, operation, and reporting requirements.(5) Ultraviolet (UV) light reactors used for microbiological inactivation can receive Cryptosporidium, Giardia, and virus inactivation credit if the reactors meet the criteria in subparagraphs (A) - (C) of this paragraph.(A) UV light reactors can receive inactivation credit only if they are located after filtration.(B) In lieu of a pilot study, the UV light reactors must undergo validation testing to determine the operating conditions under which a UV reactor delivers the required UV dose. Validation testing must be conducted according to the criteria established by 40 CFR §141.720(d)(2) and the executive director.(i) The validation study must include the following factors: UV absorbance of the water; lamp fouling and aging; measurement uncertainty of on-line sensors; UV dose distributions arising from the velocity profiles through the reactor; failure of UV lamps and other critical system components; inlet and outlet piping or channel configuration of the UV reactor; lamp and sensor locations; and other parameters determined by the executive director.(ii) Validation testing must be conducted on a full-scale reactor that is essentially identical to the UV reactor(s) to be used by the system and using waters that are essentially identical in quality to the water to be treated by the UV reactor.(C) The UV light reactor systems must be designed to monitor and record parameters to verify the UV reactors operation within the validated conditions approved by the executive director. The UV light reactor must be equipped with facilities to monitor and record UV intensity as measured by a UV sensor, flow rate, lamp status, and other parameters designated by the executive director.(6) Membrane filtration used by groundwater systems to achieve at least 4-log removal of viruses to comply with the groundwater rule requirements under §290.109 of this title (relating to Microbial Contaminants) and §290.116 of this title, the public water system shall meet the following criteria.(A) The membrane module must have an absolute molecular weight cut-off, or an alternate parameter that describes the exclusion characteristics of the membrane, that can reliably achieve at least 4-log removal of viruses.(B) The membrane system must be designed to conduct and record the results of integrity testing in a manner that demonstrates a removal efficiency equal to or greater than the removal credit awarded to the membrane system approved by the executive director.(h) Sanitary facilities for water works installations. Toilet and hand washing facilities provided in accordance with established standards of good public health engineering practices shall be available at all installations requiring frequent visits by operating personnel.(i) Permits for waste discharges. Any discharge of wastewater and other plant wastes shall be in accordance with all applicable state and federal statutes and regulations. Permits for discharging wastes from water treatment processes shall be obtained from the commission, if necessary.(j) Treatment chemicals and media. All chemicals and any additional or replacement process media used in treatment of water supplied by public water systems must conform to ANSI/NSF Standard 60 for Drinking Water Treatment Chemicals and ANSI/NSF Standard 61 for Drinking Water System Components. Conformance with these standards must be obtained by certification of the product by an organization accredited by ANSI.(k) Safety.(1) Safety equipment for all chemicals used in water treatment shall meet applicable standards established by the OSHA or Texas Hazard Communication Act, Texas Health and Safety Code, Chapter 502.(2) Systems must comply with United States Environmental Protection Agency (EPA) requirements for Risk Management Plans.(l) Plant operations manual. A thorough plant operations manual must be compiled and kept up-to-date for operator review and reference. This manual should be of sufficient detail to provide the operator with routine maintenance and repair procedures, with protocols to be utilized in the event of a natural or man-made catastrophe, as well as provide telephone numbers of water system personnel, system officials, and local/state/federal agencies to be contacted in the event of an emergency. If operating a reverse osmosis or nanofiltration membrane system, the manual must also include the system's configuration, baseline performance data, and any set point for membrane cleaning or replacement. This manual must include, at a minimum, the following information to ensure the continuity of operations. (1) Identify critical plant equipment and planned protective measures for this equipment during adverse weather conditions. This will include relevant equipment maintenance schedules, the location and part numbers for backup and replacement parts, reference to pertinent manufacturer's user manuals, and vendor/technician information to include how and where to source equipment outside of the area during localized adverse weather events.(2) Identify all necessary water treatment chemicals and chemical vendors. This will include relevant chemical vendor contact information, order/replacement schedules, and information on how and where to source chemicals outside of the area during localized adverse weather events.(3) Standard operating procedures for:(A) Chemical feed-rate verification and documentation procedures;(B) Dose adjustment criteria, protocols, and documentation procedures;(C) Process control sampling locations, frequencies, and documentation procedures;(D) Calibration and accuracy verification protocol, frequencies and documentation procedures related to online and benchtop monitoring equipment;(E) Operation protocol to include start-up and shutdown for critical units under normal and emergency conditions for both manual, and automated settings, as applicable; and (F) Copies of or links to manufacturer's specifications for maintaining and troubleshooting all critical plant equipment.(4) Continuation of operations plan to prevent or mitigate disastrous impacts to the water system if a critical treatment unit or critical equipment fails or there is a temporary or permanent loss of key personnel.(5) This manual must be reviewed and updated when significant changes, as described in §290.39(j) of this title, are made, after emergency events that impact public water system operation, or at least every three years.(m) Security. Each water treatment plant and all appurtenances thereof shall be enclosed by an intruder-resistant fence. The gates shall be locked during periods of darkness and when the plant is unattended. A locked building in the fence line may satisfy this requirement or serve as a gate.(n) Corrosion control treatment. Systems must install any corrosion control or source water treatment required by §290.117(f) and (g) of this title (relating to Regulation of Lead and Copper), respectively. Such treatment must be designed and installed consistent with the requirements of this subchapter. The requirements of 40 CFR §141.82(i) and §141.83(b)(7) relating to EPA involvement in treatment determination are adopted by reference.(o) Weatherization. All critical drinking water treatment components necessary to achieve compliance with primary standards and treatment technique requirements must be protected from adverse weather conditions.</content><note type="source"><p>Source Note: The provisions of this §290.42 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective September 12, 2013, 38 TexReg 5880; amended to be effective July 30, 2015, 40 TexReg 4769; amended to be effective March 30, 2017, 42 TexReg 1466; amended to be effective December 21, 2023, 48 TexReg 7585.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scD/s290.43"><num value="290.43">§290.43</num><heading>Water Storage</heading><content>(a) Capacity. The minimum clearwell, storage tank, and pressure maintenance capacity shall be governed by the requirements in §290.45 of this title (relating to Minimum Water System Capacity Requirements).(b) Location of clearwells, standpipes, and ground storage and elevated tanks.(1) No public water supply elevated storage or ground storage tank shall be located:(A) within 500 feet of any;(i) municipal or industrial sewage treatment plant;(ii) land which is spray irrigated with sewage treatment plant effluent; or(iii) land on which sewage treatment plant sludge, septic tank sewage sludge, or biosolids is applied; or(B) within 150 feet of any land spray irrigated with effluent from onsite sewage facilities as defined in §285.2 of this title (related to Definitions).(2) Insofar as possible, clearwells or treated water tanks shall not be located under any part of any buildings and, when possible, shall be constructed partially or wholly above ground.(3) No storage tank or clearwell located below ground level is allowed within 50 feet of a sanitary sewer or septic tank. However, if the sanitary sewers are constructed of 150 pounds per square inch (psi) pressure-rated pipe with pressure-tested, watertight joints as used in water main construction, the minimum separation distance is ten feet.(4) No storage tank or clearwell located below ground level is allowed within 150 feet of a septic tank soil absorption system.(c) Design and construction of clearwells, standpipes, ground storage tanks, and elevated tanks. All facilities for potable water storage shall be covered and designed, fabricated, erected, tested, and disinfected in strict accordance with current American Water Works Association (AWWA) standards and shall be provided with the minimum number, size and type of roof vents, man ways, drains, sample connections, access ladders, overflows, liquid level indicators, and other appurtenances as specified in these rules. The roof of all tanks shall be designed and erected so that no water ponds at any point on the roof and, in addition, no area of the roof shall have a slope of less than 0.75 inch per foot.(1) Roof vents shall be gooseneck or roof ventilator and be designed by the engineer based on the maximum outflow from the tank. Vents shall be installed in strict accordance with current AWWA standards and shall be equipped with approved screens to prevent entry of animals, birds, insects and heavy air contaminants. Screens shall be fabricated of corrosion-resistant material and shall be 16-mesh or finer. Screens shall be securely clamped in place with stainless or galvanized bands or wires and shall be designed to withstand winds of not less than tank design criteria (unless specified otherwise by the engineer).(2) All roof openings shall be designed in accordance with current AWWA standards. If an alternate 30-inch diameter access opening is not provided in a storage tank, the primary roof access opening shall not be less than 30 inches in diameter. Other roof openings required only for ventilating purposes during cleaning, repairing or painting operations shall be not less than 24 inches in diameter or as specified by the licensed professional engineer. An existing tank without a 30-inch in diameter access opening must be modified to meet this requirement when major repair or maintenance is performed on the tank. Each access opening shall have a raised curbing at least four inches in height with a lockable cover that overlaps the curbing at least two inches in a downward direction. Where necessary, a gasket shall be used to make a positive seal when the hatch is closed. All hatches shall remain locked except during inspections and maintenance.(3) Overflows shall be designed in strict accordance with current AWWA standards. If the overflow terminates at any point other than the ground level, it shall be located near enough and at a position accessible from a ladder or the balcony for inspection purposes. The overflow(s) shall be sized to handle the maximum possible fill rate without exceeding the capacity of the overflow(s). The discharge opening of the overflow(s) shall be above the surface of the ground and shall not be subject to submergence. The discharge opening shall be covered with a gravity-hinged and weighted cover, an elastomeric duckbill valve, or other approved device to prevent the entrance of insects and other nuisances. When the tank is not overflowing, the cover shall close automatically and fit tightly with no gap over 1/16 inch.(4) All clearwells and water storage tanks shall have a liquid level indicator located at the tank site. The indicator can be a float with a moving target, an ultrasonic level indicator, or a pressure gauge calibrated in feet of water. If an elevated tank or standpipe has a float with moving target indicator, it must also have a pressure indicator located at ground level. Pressure gauges must not be less than three inches in diameter and calibrated at not more than two-foot intervals. Remote reading gauges at the owner's treatment plant or pumping station will not eliminate the requirement for a gauge at the tank site unless the tank is located at the plant or station.(5) Inlet and outlet connections shall be located so as to prevent short-circuiting or stagnation of water. Clearwells used for disinfectant contact time shall be appropriately baffled.(6) Clearwells and potable water storage tanks shall be thoroughly tight against leakage, shall be located above the groundwater table, and shall have no walls in common with any other plant units containing water in the process of treatment. All associated appurtenances including valves, pipes, and fittings shall be tight against leakage.(7) Each clearwell or potable water storage tank shall be provided with a means of removing accumulated silt and deposits at all low points in the bottom of the tank. Drains shall not be connected to any waste or sewage disposal system and shall be constructed so that they are not a potential agent in the contamination of the stored water. Each clearwell or potable water storage tank must be designed to drain the tank.(8) All clearwells, ground storage tanks, standpipes, and elevated tanks shall be painted, disinfected, and maintained in strict accordance with current AWWA standards. However, no temporary coatings, wax grease coatings, or coating materials containing lead will be allowed. No other coatings will be allowed which are not approved for use (as a contact surface with potable water) by the United States Environmental Protection Agency, NSF International (NSF), or United States Food and Drug Administration. All newly installed coatings must conform to American National Standards Institute/NSF (ANSI/NSF) Standard 61 and must be certified by an organization accredited by ANSI.(9) No tanks or containers shall be used to store potable water that have previously been used for any nonpotable purpose. Where a used tank is proposed for use, a letter from the previous owner or owners must be submitted to the executive director which states the use of the tank.(10) Access manways in the riser pipe, shell area, access tube, bowl area or any other location opening directly into the water compartment shall be located in strict accordance with current AWWA standards. These openings shall not be less than 24 inches in diameter. However, in the case of a riser pipe or access tube of 36 inches in diameter or smaller, the access manway may be 18 inches times 24 inches with the vertical dimension not less than 24 inches. The primary access manway in the lower ring or section of a ground storage tank shall be not less than 30 inches in diameter. Where necessary, for any access manway which allows direct access to the water compartment, a gasket shall be used to make a positive seal when the access manway is closed.(d) Design and construction of pressure (hydropneumatic) tanks. All hydropneumatic tanks must be located wholly above grade and must be of steel construction with welded seams except as provided in paragraph (8) of this subsection.(1) Metal thickness for pressure tanks shall be sufficient to withstand the highest expected working pressures with a four to one factor of safety. Tanks of 1,000 gallons capacity or larger must meet the standards of the American Society of Mechanical Engineers (ASME) Section VIII, Division 1 Codes and Construction Regulations and must have an access port for periodic inspections. An ASME name plate must be permanently attached to those tanks. Tanks installed before July 1, 1988, are exempt from the ASME coding requirement, but all new installations must meet this regulation. Exempt tanks can be relocated within a system but cannot be relocated to another system.(2) All pressure tanks shall be provided with a pressure release device and an easily readable pressure gauge. When more than one pressure tank is connected by a common manifold pipe and pressure switch to allow the tanks to operate as a single unit, the unit shall be provided at least one pressure gauge.(3) Facilities shall be provided for maintaining the air-water-volume at the design water level and working pressure. Air injection lines must be equipped with filters or other devices to prevent compressor lubricants and other contaminants from entering the pressure tank. A device to readily determine air-water-volume must be provided for all tanks greater than 1,000 gallon capacity. Galvanized tanks which are not provided with the necessary fittings and which were installed before July 1, 1988 shall be exempt from this requirement.(4) Protective paint or coating shall be applied to the inside portion of any pressure tank. The coating shall be as specified in subsection (c)(8) of this section.(5) No pressure tank that has been used to store any material other than potable water may be used in a public water system. A letter from the previous owner or owners must be provided as specified in subsection (c)(9) of this section.(6) Pressure tank installations should be equipped with slow closing valves and time delay pump controls to eliminate water hammer and reduce the chance of tank failure.(7) All associated appurtenances including valves, pipes and fittings connected to pressure tanks shall be thoroughly tight against leakage.(8) Where seamless fiberglass tanks are utilized, they shall not exceed 300 gallons in capacity.(9) No more than three pressure tanks shall be installed at any one site without the prior approval of the executive director.(e) Facility security. All potable water storage tanks and pressure maintenance facilities must be installed in a lockable building that is designed to prevent intruder access or enclosed by an intruder-resistant fence with lockable gates. Pedestal-type elevated storage tanks with lockable doors and without external ladders are exempt from this requirement. The gates and doors must be kept locked whenever the facility is unattended.(f) Service pumps. Service pump installations taking suction from storage tanks shall provide automatic low water level cutoff devices to prevent damage to the pumps. The service pump circuitry shall also resume pumping automatically once the minimum water level is reached in the tank.(g) Weatherization. All critical components necessary for the safe and sufficient storage of raw water or treated drinking water must be protected from adverse weather conditions.</content><note type="source"><p>Source Note: The provisions of this §290.43 adopted to be effective October 1, 1992, 17 TexReg 6455; amended to be effective November 3, 1995, 20 TexReg 8620; amended to be effective February 4, 1999, 24 TexReg 731; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective July 30, 2015, 40 TexReg 4769; amended to be effective December 21, 2023, 48 TexReg 7585.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scD/s290.44"><num value="290.44">§290.44</num><heading>Water Distribution</heading><content>(a) Design and standards. All potable water distribution systems including pump stations, mains, and both ground and elevated storage tanks, shall be designed, installed, and constructed in accordance with current American Water Works Association (AWWA) standards with reference to materials to be used and construction procedures to be followed. In the absence of AWWA standards, commission review may be based upon the standards of the American Society for Testing and Materials (ASTM), commercial, and other recognized standards utilized by licensed professional engineers.(1) All newly installed pipes and related products must conform to American National Standards Institute/NSF International (ANSI/NSF) Standard 61 and must be certified by an organization accredited by ANSI.(2) All plastic pipes for use in public water systems must also bear the NSF International Seal of Approval (NSF-pw) and have an ASTM design pressure rating of at least 150 pounds per square inch (psi) or a standard dimension ratio of 26 or less.(3) No pipe which has been used for any purpose other than the conveyance of drinking water shall be accepted or relocated for use in any public drinking water supply.(4) Water transmission and distribution lines must be installed in accordance with the manufacturer's instructions. However, the top of the waterline must be located below the frost line and in no case shall the top of the waterline be less than 24 inches below ground surface.(5) The hydrostatic leakage rate shall not exceed the amount allowed or recommended by AWWA formulas.(b) Lead ban. The following provisions apply to the use of lead in plumbing.(1) The use of pipes and pipe fittings that contain more than 0.25% lead or solders and flux that contains more than 0.2% lead is prohibited in the following circumstances:(A) for installation or repair of any public water supply; and(B) for installation or repair of any plumbing in a residential or nonresidential facility providing water for human consumption and connected to a public drinking water supply system.(2) This requirement will be waived for lead joints that are necessary for repairs to cast iron pipe.(3) The following are exempt from prohibitions on the use of lead pipes, solder, and flux:(A) pipes, pipe fittings, plumbing fittings, or fixtures, including backflow preventers, that are used exclusively for nonpotable services such as manufacturing, industrial processing, irrigation, outdoor watering, or any other uses where the water is not anticipated to be used for human consumption; or(B) toilets, bidets, urinals, fill valves, flush-o-meter valves, tub fillers, shower valves, service saddles, fire hydrants or water distribution main gate valves that are two inches in diameter or larger.(c) Minimum waterline sizes. The minimum waterline sizes are for domestic flows only and do not consider fire flows. Larger pipe sizes shall be used when the licensed professional engineer deems it necessary. It should be noted that the required sizes are based strictly on the number of customers to be served and not on the distances between connections or differences in elevation or the type of pipe. No new waterline less than two inches in diameter will be allowed to be installed in a public water system distribution system. These minimum line sizes do not apply to individual customer service lines.Attached Graphic(d) Minimum pressure requirement. The system must be designed to maintain a minimum pressure of 35 psi at all points within the distribution network at flow rates of at least 1.5 gallons per minute per connection. When the system is intended to provide firefighting capability, it must also be designed to maintain a minimum pressure of 20 psi under combined fire and drinking water flow conditions. The distribution system of public water systems that are also affected utilities, defined in TWC §13.1394 or §13.1395, must be designed to meet the requirements of §290.45(h) or (i) of this title (relating to Minimum Water System Capacity Requirements).(1) Air release devices shall be installed in the distribution system at all points where topography or other factors may create air locks in the lines. Air release devices shall be installed in such a manner as to preclude the possibility of submergence or possible entrance of contaminants. In this respect, all openings to the atmosphere shall be covered with 16-mesh or finer, corrosion-resistant screening material or an acceptable equivalent.(2) When service is to be provided to more than one pressure plane or when distribution system conditions and demands are such that low pressures develop, the method of providing increased pressure shall be by means of booster pumps taking suction from storage tanks. If an exception to this requirement is desired, the designing engineer must furnish for the executive director's review all planning material for booster pumps taking suction from other than a storage tank. The planning material must contain a full description of the supply to the point of suction, maximum demands on this part of the system, location of pressure recorders, safety controls, and other pertinent information. Where booster pumps are installed to take suction directly from the distribution system, a minimum residual pressure of 20 psi must be maintained on the suction line at all times. Such installations must be equipped with automatic pressure cut-off devices so that the pumping units become inoperative at a suction pressure of less than 20 psi. In addition, a continuous pressure recording device may be required at a predetermined suspected critical pressure point on the suction line in order to record the hydraulic conditions in the line at all times. If such a record indicates critical minimum pressures, less than 20 psi, adequate storage facilities must be installed with the booster pumps taking suction from the storage facility. Fire pumps used to maintain pressure on automatic sprinkler systems only for fire protection purposes are not considered as in-line booster pumps.(3) Service connections that require booster pumps taking suction from the public water system lines must be equipped with automatic pressure cut-off devices so that the pumping units become inoperative at a suction pressure of less than 20 psi. Where these types of installations are necessary, the preferred method of pressure maintenance consists of an air gapped connection with a storage tank and subsequent repressurization facilities.(4) Each community public water system shall provide accurate metering devices at each residential, commercial, or industrial service connection for the accumulation of water usage data. A water system that furnishes the services or commodity only to itself or its employees when that service or commodity is not resold to or used by others is exempt from this requirement.(5) The system shall be provided with sufficient valves and blowoffs so that necessary repairs can be made without undue interruption of service over any considerable area and for flushing the system when required. The engineering report shall establish criteria for this design.(6) The system shall be designed to afford effective circulation of water with a minimum of dead ends. All dead-end mains shall be provided with acceptable flush valves and discharge piping. All dead-end lines less than two inches in diameter will not require flush valves if they end at a customer service. Where dead ends are necessary as a stage in the growth of the system, they shall be located and arranged to ultimately connect the ends to provide circulation.(e) Location of waterlines. The following rules apply to installations of waterlines, wastewater mains or laterals, and other conveyances/appurtenances identified as potential sources of contamination. Furthermore, all ratings specified shall be defined by ASTM or AWWA standards unless stated otherwise. New mains, service lines, or laterals are those that are installed where no main, service line, or lateral previously existed, or where existing mains, service lines, or laterals are replaced with pipes of different size or material. (1) When new potable water distribution lines are constructed, they shall be installed no closer than nine feet in all directions to wastewater collection facilities. All separation distances shall be measured from the outside surface of each of the respective pieces.(2) Potable water distribution lines and wastewater mains or laterals that form parallel utility lines shall be installed in separate trenches.(3) No physical connection shall be made between a drinking water supply and a sewer line. Any appurtenance shall be designed and constructed so as to prevent any possibility of sewage entering the drinking water system.(4) Where the nine-foot separation distance cannot be achieved, the following criteria shall apply.(A) New waterline installation - parallel lines.(i) Where a new potable waterline parallels an existing, non-pressure or pressure rated wastewater main or lateral and the licensed professional engineer licensed in the State of Texas is able to determine that the existing wastewater main or lateral is not leaking, the new potable waterline shall be located at least two feet above the existing wastewater main or lateral, measured vertically, and at least four feet away, measured horizontally, from the existing wastewater main or lateral. Every effort shall be exerted not to disturb the bedding and backfill of the existing wastewater main or lateral.(ii) Where a new potable waterline parallels an existing pressure-rated wastewater main or lateral and it cannot be determined by the licensed professional engineer if the existing line is leaking, the existing wastewater main or lateral shall be replaced with at least 150 psi pressure-rated pipe. The new potable waterline shall be located at least two feet above the new wastewater line, measured vertically, and at least four feet away, measured horizontally, from the replaced wastewater main or lateral.(iii) Where a new potable waterline parallels a new wastewater main, the wastewater main or lateral shall be constructed of at least 150 psi pressure-rated pipe. The new potable waterline shall be located at least two feet above the wastewater main or lateral, measured vertically, and at least four feet away, measured horizontally, from the wastewater main or lateral.(B) New waterline installation - crossing lines.(i) Where a new potable waterline crosses above a wastewater main or lateral, the segment of the waterline pipe shall be centered over and must be perpendicular to the wastewater main or lateral such that the joints of the waterline pipe are equidistant and at least nine feet horizontally from the centerline of the wastewater main or lateral. When crossing an existing wastewater main or lateral and it is disturbed or shows signs of leaking, the wastewater main or lateral shall be replaced for at least nine feet in both directions (18 feet total) with at least 150 psi pressure-rated pipe embedded in cement stabilized sand (see clause (v) of this subparagraph) for the total length of one pipe segment plus 12 inches beyond the joint on each end.(I) The potable waterline shall be at least two feet above an existing, non-pressure rated wastewater main or lateral.(II) The potable waterline shall be at least six inches above an existing, pressure-rated wastewater main or lateral.(ii) Where a new potable waterline crosses a new, non-pressure rated wastewater main or lateral, the segment of the waterline pipe shall be centered over and shall be perpendicular to the wastewater main or lateral such that the joints of the waterline pipe are equidistant and at least nine feet horizontally from the centerline of the wastewater main or lateral. The potable waterline shall be at least two feet above the wastewater main or lateral. Whenever possible, the crossing shall be centered between the joints of the wastewater main or lateral. The wastewater pipe shall have a minimum pipe stiffness of 115 psi at 5.0% deflection. The wastewater main or lateral shall be embedded in cement stabilized sand (see clause (v) of this subparagraph) for the total length of one pipe segment plus 12 inches beyond the joint on each end. The materials and method of installation shall conform to one of the following options:(I) Within nine feet horizontally of either side of the waterline, the wastewater pipe and joints shall be constructed with pipe material having a minimum pressure rating of at least 150 psi. An absolute minimum vertical separation distance of two feet shall be provided. The wastewater main or lateral shall be located below the waterline.(II) All sections of wastewater main or lateral within nine feet horizontally of the waterline shall be encased in an 18-foot (or longer) section of pipe. Flexible encasing pipe shall have a minimum pipe stiffness of 115 psi at 5.0% deflection. The encasing pipe shall be centered on the waterline and shall be at least two nominal pipe diameters larger than the wastewater main or lateral. The space around the carrier pipe shall be supported at five-foot (or less) intervals with spacers or be filled to the springline with washed sand. Each end of the casing shall be sealed with watertight non-shrink cement grout or a manufactured watertight seal. An absolute minimum separation distance of six inches between the encasement pipe and the waterline shall be provided. The wastewater line shall be located below the waterline.(iii) When a new waterline crosses under a wastewater main or lateral, the waterline shall be encased as described for wastewater mains or laterals in clause (ii) of this subparagraph or constructed of ductile iron or steel pipe with mechanical or welded joints as appropriate. An absolute minimum separation distance of one foot between the waterline and the wastewater main or lateral shall be provided. When a new waterline crosses under a wastewater main, the procedures in §217.53(d) of this title (relating to Pipe Design) must be followed.(iv) Where a new potable waterline crosses a new, pressure rated wastewater main or lateral, one segment of the waterline pipe shall be centered over and shall be perpendicular to the wastewater line such that the joints of the waterline pipe are equidistant and at least nine feet horizontally from the center line of the wastewater main or lateral. The potable waterline shall be at least six inches above the wastewater main or lateral. Whenever possible, the crossing shall be centered between the joints of the wastewater main or lateral. The wastewater pipe shall have a minimum pressure rating of at least 150 psi. The wastewater main or lateral shall be embedded in cement stabilized sand (see clause (v) of this subparagraph) for the total length of one pipe segment plus 12 inches beyond the joint on each end.(v) Where cement stabilized sand bedding is required, the cement stabilized sand shall have a minimum of 10% cement per cubic yard of cement stabilized sand mixture, based on loose dry weight volume (at least 2.5 bags of cement per cubic yard of mixture). The cement stabilized sand bedding shall be a minimum of six inches above and four inches below the wastewater main or lateral. The use of brown coloring in cement stabilized sand for wastewater main or lateral bedding is recommended for the identification of pressure rated wastewater mains during future construction.(5) Waterline and wastewater main manhole or lateral manhole or cleanout separation. The separation distance from a potable waterline to a wastewater main manhole or lateral manhole or cleanout shall be a minimum of nine feet. Where the nine-foot separation distance cannot be achieved, the potable waterline shall be encased in a joint of at least 150 psi pressure class pipe at least 18 feet long and two nominal sizes larger than the new conveyance. The space around the carrier pipe shall be supported at five-foot intervals with spacers or be filled to the springline with washed sand. The encasement pipe shall be centered on the crossing and both ends sealed with cement grout or manufactured sealant.(6) Location of fire hydrants. Fire hydrants shall not be installed within nine feet vertically or horizontally of any wastewater main, wastewater lateral, or wastewater service line regardless of construction.(7) Location of potable or raw water supply or suction lines. Suction mains to pumping equipment shall not cross wastewater mains, wastewater laterals, or wastewater service lines. Raw water supply lines shall not be installed within five feet of any tile or concrete wastewater main, wastewater lateral, or wastewater service line.(8) Proximity of septic tank drainfields. Waterlines shall not be installed closer than ten feet to septic tank drainfields.(f) Sanitary precautions and disinfection. Sanitary precautions, flushing, disinfection procedures, and microbiological sampling as prescribed in AWWA standards for disinfecting water mains shall be followed in laying waterlines.(1) Pipe shall not be laid in water or placed where it can be flooded with water or sewage during its storage or installation. (2) Special precautions must be taken when waterlines are laid under any flowing or intermittent stream or semipermanent body of water such as marsh, bay, or estuary. In these cases, the water main shall be installed in a separate watertight pipe encasement and valves must be provided on each side of the crossing with facilities to allow the underwater portion of the system to be isolated and tested to determine that there are no leaks in the underwater line. Alternately, and with the permission of the executive director, the watertight pipe encasement may be omitted.(3) New mains shall be thoroughly disinfected in accordance with AWWA Standard C651 and then flushed and sampled before being placed in service. Samples shall be collected for microbiological analysis to check the effectiveness of the disinfection procedure. Sampling shall be repeated if contamination persists. A minimum of one sample for each 1,000 feet of completed waterline will be required or at the next available sampling point beyond 1,000 feet as designated by the design engineer.(g) Interconnections.(1) Each proposal for a direct connection between public drinking water systems under separate administrative authority will be considered on an individual basis.(A) Documents covering the responsibility for sanitary control shall accompany the submitted planning material.(B) Each water supply shall be of a safe, potable quality. (2) Where an interconnection between systems is proposed to provide a second source of supply for one or both systems, the system being utilized as a second source of supply must be capable of supplying a minimum of 0.35 gallons per minute per connection for the total number of connections in the combined distribution systems.(h) Backflow, siphonage.(1) No water connection from any public drinking water supply system shall be allowed to any residence or establishment where an actual or potential contamination hazard exists unless the public water facilities are protected from contamination.(A) At any residence or establishment where an actual or potential contamination hazard exists, additional protection shall be required at the meter in the form of an air gap or backflow prevention assembly. The type of backflow prevention assembly required shall be determined by the specific potential hazard identified in §290.47(f) of this title (relating to Appendices).(B) At any residence or establishment where an actual or potential contamination hazard exists and an adequate internal cross-connection control program is in effect, backflow protection at the water service entrance or meter is not required.(i) An adequate internal cross-connection control program shall include an annual inspection and testing by a licensed backflow prevention assembly tester on all backflow prevention assemblies used for health hazard protection.(ii) Copies of all such inspection and test reports must be obtained and kept on file by the water purveyor.(iii) It will be the responsibility of the water purveyor to ensure that these requirements are met.(2) No water connection from any public drinking water supply system shall be connected to any condensing, cooling, or industrial process or any other system of nonpotable usage over which the public water supply system officials do not have sanitary control, unless the said connection is made in accordance with the requirements of paragraph (1) of this subsection. Water from such systems cannot be returned to the potable water supply.(3) Overhead bulk water dispensing stations must be provided with an air gap between the filling outlet hose and the receiving tank to protect against back siphonage and cross-contamination.(4) All backflow prevention assemblies that are required according to this section and associated table located in §290.47(f) of this title shall be tested upon installation by a licensed backflow prevention assembly tester and certified to be operating within specifications. Backflow prevention assemblies which are installed to provide protection against health hazards must also be tested and certified to be operating within specifications at least annually by a licensed backflow prevention assembly tester.(A) Backflow prevention assembly testers shall have completed an executive director-approved course on cross-connection control and backflow prevention assembly testing, pass an examination administered by the executive director, and hold a current license as a backflow prevention assembly tester.(i) Backflow prevention assembly testers are qualified to test and repair assemblies on any domestic, commercial, industrial, or irrigation service.(ii) Backflow prevention assembly testers may test and repair assemblies on firelines only if they are permanently employed by an Approved Fireline Contractor. The Texas Department of Insurance's State Fire Marshal's Office requires that any person performing maintenance on firelines must be employed by an Approved Fireline Contractor.(B) Gauges used in the testing of backflow prevention assemblies shall be tested for accuracy annually in accordance with the University of Southern California's Manual of Cross-Connection Control or the AWWA's Recommended Practice for Backflow Prevention and Cross-Connection Control (AWWA Manual M14). Public water systems shall require testers to include test gauge serial numbers on the Backflow Prevention Assembly Test and Maintenance Report (commission Form 20700), and ensure testers have gauges tested for accuracy.(C) A test report must be completed by the recognized backflow prevention assembly tester for each assembly tested. The signed and dated original must be submitted to the public water supplier for recordkeeping purposes. Any form which varies from the format specified in commission Form 20700 must be approved by the executive director prior to being placed in use.(5) The use of a backflow prevention assembly at the service connection shall be considered as additional backflow protection and shall not negate the use of backflow protection on internal hazards as outlined and enforced by local plumbing codes.(6) At any residence or establishment where there is no actual or potential contamination hazard, a backflow prevention assembly is not required.(i) Water hauling. When drinking water is distributed by tank truck or trailer, it must be accomplished in the following manner.(1) Water shall be obtained from an approved source.(2) The equipment used to haul the water must be approved by the executive director and must be constructed as follows.(A) The tank truck or trailer shall be used for transporting drinking water only and shall be labeled "Drinking Water." Tanks which have been used previously for purposes other than transporting potable liquids shall not be used for hauling drinking water.(B) The tank shall be watertight and of an approved material which is impervious and easily cleaned and disinfected. Any paint or coating and any plastic or fiberglass materials used as contact surfaces must be approved by the United States Environmental Protection Agency, the United States Food and Drug Administration, or the NSF. Effective January 1, 1993, any newly installed surfaces shall conform to ANSI/NSF Standard 61 and must be certified by an organization accredited by ANSI.(C) The tank shall have a manhole and a manhole cover which overlaps the raised manhole opening by a minimum of two inches and terminates in a downward direction. The cover shall fit firmly on the manhole opening and shall be kept locked.(D) The tank shall have a vent which is faced downward and located to minimize the possibility of drawing contaminants into the stored water. The vent must be screened with 16-mesh or finer corrosion-resistant material.(E) Connections for filling and emptying the tank shall be properly protected to prevent the possible entrance of contamination. These openings must be provided with caps and keeper chains.(F) A drain shall be provided which will completely empty the tank for cleaning or repairs.(G) When a pump is used to transfer the water from the tank, the pump shall be permanently mounted with a permanent connection to the tank. The discharge side of the pump shall be properly protected between uses by a protective cap and keeper chain.(H) Hoses used for the transfer of drinking water to and from the tank shall be used only for that purpose and labeled for drinking water only. The hoses shall conform to ANSI/NSF Standard 61 and must be certified by an entity recognized by the commission. Hoses and related appurtenances must be cleaned and disinfected on a regular basis during prolonged use or before start-up during intermittent use. Hoses must be properly stored between uses and must be provided with caps and keeper chains or have the ends connected together.(I) The tank shall be disinfected monthly and at any time that contamination is suspected.(J) At least one sample per month from each tank shall be collected and submitted for microbiological analysis to one of the executive director's accredited laboratories for each month of operation.(K) A minimum free chlorine residual of 0.5 milligrams per liter (mg/L) or, if chloramines are used as the primary disinfectant, a chloramine residual of 1.0 mg/L (measured as total chlorine) shall be maintained in the water being hauled. Chlorine or chlorine containing compounds may be added on a "batch" basis to maintain the required residual.(L) Operational records detailing the amount of water hauled, purchases, microbiological sampling results, chlorine residual readings, dates of disinfection, and source of water shall be maintained. (j) If a structure is connected to a public water supply system and has a rainwater harvesting system, the structure must have appropriate cross-connection safeguards in accordance with subsection (h)(1) of this section.(1) A privately owned rainwater harvesting system with a capacity of more than 500 gallons that is connected to a public water system for a back-up supply shall have a backflow prevention assembly or an air gap installed at the storage facility for the harvested rainwater to ensure physical separation between the rainwater harvesting system and the public water system.(2) At each residence or facility where water from a rainwater harvesting system is used for potable purposes and there is a connection to a public water system, the public water system shall ensure that the rainwater harvesting system is installed and maintained by a master plumber or journeyman plumber licensed by the Texas State Board of Plumbing Examiners and who holds an endorsement issued by the Texas State Board of Plumbing Examiners as a Water Supply Protection Specialist.(3) A person who intends to connect a rainwater harvesting system to a public water system must give written notice of that intention to the municipality or the owner or operator of the public water system in which the rainwater harvesting system is located.(4) The public water system used as a back-up supply for the rainwater harvesting system may be connected only to the water storage tank and may not be connected to the plumbing of a structure.(k) Weatherization. All critical distribution system components necessary for the continued transmission of water must be adequately protected from adverse weather conditions.</content><note type="source"><p>Source Note: The provisions of this §290.44 adopted to be effective October 1, 1992, 17 TexReg 6455; amended to be effective November 3, 1995, 20 TexReg 8620; amended to be effective March 3, 1997, 22 TexReg 1809; amended to be effective February 4, 1999, 24 TexReg 731; amended to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective October 16, 2008, 33 TexReg 8533; amended to be effective December 10, 2009, 34 TexReg 8744; amended to be effectiveSeptember 12, 2013, 38 TexReg 5880; amended to be effective February 20, 2014, 39 TexReg 994; amended to be effective July 30, 2015, 40 TexReg 4769; amended to be effective December 21, 2023, 48 TexReg 7585.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scD/s290.45"><num value="290.45">§290.45</num><heading>Minimum Water System Capacity Requirements</heading><content>(a) General provisions. (1) The requirements contained in this section are to be used in evaluating both the total capacities for public water systems and the capacities at individual pump stations and pressure planes which serve portions of the system that are hydraulically separated from, or incapable of being served by, other pump stations or pressure planes. The capacities specified in this section are minimum requirements only and do not include emergency fire flow capacities for systems required to meet requirements contained in §290.46(x) and (y) of this title (relating to Minimum Acceptable Operating Practices for Public Drinking Water Systems). (2) The executive director will require additional supply, storage, service pumping, and pressure maintenance facilities if a normal operating pressure of 35 pounds per square inch (psi) cannot be maintained throughout the system, or if the system's maximum daily demand exceeds its total production and treatment capacity. The executive director will also require additional capacities for a system that is unable to maintain a minimum pressure of 20 psi during firefighting, line flushing, other unusual conditions, and systems that are required to provide fire flow as specified in §290.46(x) and (y) of this title. (3) The executive director may establish additional capacity requirements for a public water system using the method of calculation described in subsection (g)(2) of this section if there are repeated customer complaints regarding inadequate pressure or if the executive director receives a request for a capacity evaluation from customers of the system. (4) Throughout this section, total storage capacity does not include pressure tank capacity. (5) The executive director may exclude the capacity of facilities that have been inoperative for the past 120 days and will not be returned to an operative condition within the next 30 days when determining compliance with the requirements of this section. (6) The capacity of the treatment facilities shall not be less than the required raw water or groundwater production rate or the anticipated maximum daily demand of the system. The production capacity of a reverse osmosis or nanofiltration membrane system shall be the quantity of permeate water after post-treatment that can be delivered to the distribution system. The amount available for customer use must consider: (A) the quantity of feed water discharged to waste; (B) the quantity of bypass water used for blending; (C) the quantity of permeate water used for cleaning and maintenance; and (D) any other loss of raw water or groundwater available for use due to other processes at the reverse osmosis or nanofiltration facility. (7) If a public water system that is an affected utility fails to provide a minimum of 20 psi or a pressure approved by the executive director, or 35 psi, as required by TWC §13.1394 and §13.1395 respectively, throughout the distribution system during emergency operations as soon as it is safe and practicable following the occurrence of a natural disaster, a revised emergency preparedness plan or justification regarding pressure drop shall be submitted for review and approval within 180 days of the date normal power is restored. Based on the review of the revised emergency preparedness plan, the executive director may require additional or alternative auxiliary emergency facilities. (8) A public water system that is an affected utility is required to review its emergency preparedness plan once every three years. An affected utility shall submit a new or revised emergency preparedness plan to the executive director for approval within 90 days after any of the following conditions occur: (A) An affected utility chooses to implement a different option or options other than those in the most recent approved emergency preparedness plan; (B) A previously non-affected utility meets the definition of an affected utility; (C) An affected utility makes a significant change as described in §290.39(j) of this title that affects emergency operations; or (D) An affected utility makes changes to utility contact or emergency communications information. For these changes, the affected utility must submit only the updated applicable pages of the emergency preparedness plan to the executive director. (b) Community water systems. (1) Groundwater supplies must meet the following requirements. (A) If fewer than 50 connections without ground storage, the system must meet the following requirements: (i) a well capacity of 1.5 gallons per minute (gpm) per connection; and (ii) a pressure tank capacity of 50 gallons per connection. (B) If fewer than 50 connections with ground storage, the system must meet the following requirements: (i) a well capacity of 0.6 gpm per connection; (ii) a total storage capacity of 200 gallons per connection; (iii) two or more service pumps having a total capacity of 2.0 gpm per connection; and (iv) a pressure tank capacity of 20 gallons per connection. (C) For 50 to 250 connections, the system must meet the following requirements: (i) a well capacity of 0.6 gpm per connection; (ii) a total storage capacity of 200 gallons per connection; (iii) two or more pumps having a total capacity of 2.0 gpm per connection at each pump station or pressure plane. For systems which provide an elevated storage capacity of 200 gallons per connection, two service pumps with a minimum combined capacity of 0.6 gpm per connection are required at each pump station or pressure plane. If only wells and elevated storage are provided, service pumps are not required; and (iv) an elevated storage capacity of 100 gallons per connection or a pressure tank capacity of 20 gallons per connection. (D) For more than 250 connections, the system must meet the following requirements: (i) two or more wells having a total capacity of 0.6 gpm per connection. Where an interconnection is provided with another acceptable water system capable of supplying at least 0.35 gpm for each connection in the combined system under emergency conditions, an additional well will not be required as long as the 0.6 gpm per connection requirement is met for each system on an individual basis. Each water system must still meet the storage and pressure maintenance requirements on an individual basis unless the interconnection is permanently open. In this case, the systems' capacities will be rated as though a single system existed; (ii) a total storage capacity of 200 gallons per connection; (iii) two or more pumps that have a total capacity of 2.0 gpm per connection or that have a total capacity of at least 1,000 gpm and the ability to meet peak hourly demands with the largest pump out of service, whichever is less, at each pump station or pressure plane. For systems which provide an elevated storage capacity of 200 gallons per connection, two service pumps with a minimum combined capacity of 0.6 gpm per connection are required at each pump station or pressure plane. If only wells and elevated storage are provided, service pumps are not required; (iv) an elevated storage capacity of 100 gallons per connection or a pressure tank capacity of 20 gallons per connection. If pressure tanks are used, a maximum capacity of 30,000 gallons is sufficient for up to 2,500 connections. An elevated storage capacity of 100 gallons per connection is required for systems with more than 2,500 connections. Alternate methods of pressure maintenance may be proposed and will be approved if the criteria contained in subsection (g)(5) of this section are met; and (v) emergency power for systems which serve more than 250 connections and do not meet the elevated storage requirement. Sufficient emergency power must be provided to deliver a minimum of 0.35 gpm per connection and meet minimum pressure requirements to the distribution system in the event of the loss of normal power supply. Alternately, an emergency interconnection can be provided with another public water system that has emergency power and is able to supply at least 0.35 gpm for each connection in the combined system. Emergency power must be maintained as required by §290.46(m)(8) of this title. (E) Mobile home parks with a density of eight or more units per acre and apartment complexes which supply fewer than 100 connections without ground storage must meet the following requirements: (i) a well capacity of 1.0 gpm per connection; and (ii) a pressure tank capacity of 50 gallons per connection with a maximum of 2,500 gallons required. (F) Mobile home parks and apartment complexes which supply 100 connections or greater, or fewer than 100 connections and utilize ground storage must meet the following requirements: (i) a well capacity of 0.6 gpm per connection. Systems with 250 or more connections must have either two wells or an approved interconnection which is capable of supplying at least 0.35 gpm for each connection in the combined system; (ii) a total storage of 200 gallons per connection; (iii) at least two service pumps with a total capacity of 2.0 gpm per connection; and (iv) a pressure tank capacity of 20 gallons per connection. (2) Surface water supplies must meet the following requirements: (A) a raw water pump capacity of 0.6 gpm per connection with the largest pump out of service; (B) a treatment plant capacity of 0.6 gpm per connection under normal rated design flow; (C) transfer pumps (where applicable) with a capacity of 0.6 gpm per connection with the largest pump out of service; (D) a covered clearwell storage capacity at the treatment plant of 50 gallons per connection or, for systems serving more than 250 connections, 5.0% of daily plant capacity; (E) a total storage capacity of 200 gallons per connection; (F) a service pump capacity that provides each pump station or pressure plane with two or more pumps that have a total capacity of 2.0 gpm per connection or that have a total capacity of at least 1,000 gpm and the ability to meet peak hourly demands with the largest pump out of service, whichever is less. For systems which provide an elevated storage capacity of 200 gallons per connection, two service pumps with a minimum combined capacity of 0.6 gpm per connection are required at each pump station or pressure plane; (G) an elevated storage capacity of 100 gallons per connection or a pressure tank capacity of 20 gallons per connection. If pressure tanks are used, a maximum capacity of 30,000 gallons is sufficient for systems of up to 2,500 connections. An elevated storage capacity of 100 gallons per connection is required for systems with more than 2,500 connections. Alternate methods of pressure maintenance may be proposed and will be approved if the criteria contained in subsection (g)(5) of this section are met; and (H) emergency power for systems which serve more than 250 connections and do not meet the elevated storage requirement. Sufficient emergency power must be provided to deliver a minimum of 0.35 gpm per connection and meet minimum pressure requirements to the distribution system in the event of the loss of normal power supply. Alternately, an emergency interconnection can be provided with another public water system that has emergency power and is able to supply at least 0.35 gpm for each connection in the combined system. Emergency power must be maintained as required by §290.46(m)(8) of this title. (3) Any community public water system that is an affected utility, defined in TWC §13.1394 or §13.1395 shall have an emergency preparedness plan approved by the executive director and must meet the requirements for emergency operations contained in subsection (h) or (i) of this section. This includes any affected utility that provides 100 gallons of elevated storage capacity per connection. (c) Noncommunity water systems serving transient accommodation units. The following water capacity requirements apply to noncommunity water systems serving accommodation units such as hotel rooms, motel rooms, travel trailer spaces, campsites, and similar accommodations. (1) Groundwater supplies must meet the following requirements. (A) If fewer than 100 accommodation units without ground storage, the system must meet the following requirements: (i) a well capacity of 1.0 gpm per unit; and (ii) a pressure tank capacity of ten gallons per unit with a minimum of 220 gallons. (B) For systems serving fewer than 100 accommodation units with ground storage or serving 100 or more accommodation units, the system must meet the following requirements: (i) a well capacity of 0.6 gpm per unit; (ii) a ground storage capacity of 35 gallons per unit; (iii) two or more service pumps which have a total capacity of 1.0 gpm per unit; and (iv) a pressure tank capacity of ten gallons per unit. (2) Surface water supplies, regardless of size, must meet the following requirements: (A) a raw water pump capacity of 0.6 gpm per unit with the largest pump out of service; (B) a treatment plant capacity of 0.6 gpm per unit; (C) a transfer pump capacity (where applicable) of 0.6 gpm per unit with the largest pump out of service; (D) a ground storage capacity of 35 gallons per unit with a minimum of 1,000 gallons as clearwell capacity; (E) two or more service pumps with a total capacity of 1.0 gpm per unit; and (F) a pressure tank capacity of ten gallons per unit with a minimum requirement of 220 gallons. (3) A noncommunity public water system that is an affected utility, defined in TWC §13.1394 or §13.1395 shall meet the requirements of subsection (h) or (i) of this section. (d) Noncommunity water systems serving other than transient accommodation units. (1) The following table is applicable to paragraphs (2) and (3) of this subsection and shall be used to determine the maximum daily demand for the various types of facilities listed. It should be noted that this table is used to determine minimum capacities only and that the overriding criteria will be the ability of the system to maintain a minimum pressure of 35 psi under normal operating conditions. Minimum distribution pressure shall not be less than 20 psi at any time. Attached Graphic(2) Groundwater supplies must meet the following requirements. (A) Subject to the requirements of subparagraph (B) of this paragraph, if fewer than 300 persons per day are served, the system must meet the following requirements: (i) a well capacity which meets or exceeds the maximum daily demand of the system during the hours of operation; and (ii) a minimum pressure tank capacity of 220 gallons with additional capacity, if necessary, based on a sanitary survey conducted by the executive director. (B) Systems which serve 300 or more persons per day or serve fewer than 300 persons per day and provide ground storage must meet the following requirements: (i) a well capacity which meets or exceeds the maximum daily demand; (ii) a ground storage capacity which is equal to 50% of the maximum daily demand; (iii) if the maximum daily demand is less than 15 gpm, at least one service pump with a capacity of three times the maximum daily demand; (iv) if the maximum daily demand is 15 gpm or more, at least two service pumps with a total capacity of three times the maximum daily demand; and (v) a minimum pressure tank capacity of 220 gallons with additional capacity, if necessary, based on a sanitary survey conducted by the executive director. (3) Each surface water supply or groundwater supply that is under the direct influence of surface water, regardless of size, must meet the following requirements: (A) a raw water pump capacity which meets or exceeds the maximum daily demand of the system with the largest pump out of service; (B) a treatment plant capacity which meets or exceeds the system's maximum daily demand; (C) a transfer pump capacity (where applicable) sufficient to meet the maximum daily demand with the largest pump out of service; (D) a clearwell capacity which is equal to 50% of the maximum daily demand; (E) two or more service pumps with a total capacity of three times the maximum daily demand; and (F) a minimum pressure tank capacity of 220 gallons with additional capacity, if necessary, based on a sanitary survey conducted by the executive director. (4) A noncommunity public water system that is an affected utility, defined in TWC §13.1394 or §13.1395, shall meet the requirements of subsection (h) or (i) of this section. (e) Water wholesalers. The following additional requirements apply to systems which supply wholesale treated water to other public water supplies. (1) All wholesalers must provide enough production, treatment, and service pumping capacity to meet or exceed the combined maximum daily commitments specified in their various contractual obligations. If a contract prohibits a purchaser from securing water from sources other than the contracted wholesaler during emergency operations, the wholesaler is responsible for meeting applicable capacity requirements. (2) For wholesale water suppliers, minimum water system capacity requirements shall be determined by calculating the requirements based upon the number of retail customer service connections of that wholesale water supplier, if any, fire flow capacities, if required by §290.46(x) and (y) of this title and adding that amount to the maximum amount of water obligated or pledged under all wholesale contracts. (3) Emergency power is required for each portion of the system which supplies more than 250 connections under direct pressure and does not provide an elevated storage capacity of at least 100 gallons per connection. If emergency power is required, it must be sufficient to deliver 20% of the minimum required service pump capacity and meet minimum pressure requirements in the event of the loss of normal power supply. When the wholesaler provides water through an air gap into the purchaser's storage facilities it will be the purchaser's responsibility to meet all minimum water system capacity requirements including emergency power. For wholesale contracts executed or amended on or after January 1, 2025, the contract must specify if the wholesaler will supply water, pressure, or both water and pressure during emergency operations to comply with TWC §13.1394 or §13.1395. (4) A wholesaler that is an affected utility, defined in TWC §13.1394 or §13.1395, must meet the requirements specified in subsection (h) or (i) of this section. (f) Purchased water systems. The following requirements apply only to systems which purchase treated water to meet all or part of their production, storage, service pump, or pressure maintenance capacity requirements. (1) The water purchase contract must be available to the executive director in order that production, storage, service pump, or pressure maintenance capacity may be properly evaluated. For purposes of this section, a contract may be defined as a signed written document of specific terms agreeable to the water purchaser and the water wholesaler, or in its absence, a memorandum or letter of understanding between the water purchaser and the water wholesaler. (2) The contract shall authorize the purchase of enough water to meet the monthly or annual needs of the purchaser. (3) The contract shall also establish the maximum rate at which water may be drafted on a daily and hourly basis. In the absence of specific maximum daily or maximum hourly rates in the contract, a uniform purchase rate for the contract period will be used. (4) The maximum authorized daily purchase rate specified in the contract, or a uniform purchase rate in the absence of a specified daily purchase rate, plus the actual production capacity of the system must be at least 0.6 gpm per connection. (5) For systems which purchase water under direct pressure, the maximum hourly purchase authorized by the contract plus the actual service pump capacity of the system must be at least 2.0 gpm per connection or provide at least 1,000 gpm and be able to meet peak hourly demands, whichever is less. (6) The purchaser is responsible for meeting all capacity requirements. If additional capacity to meet increased demands cannot be attained from the wholesaler through a new or amended contract, additional capacity must be obtained from water purchase contracts with other entities, new wells, or surface water treatment facilities. However, if the water purchase contract prohibits the purchaser from securing water from sources other than the wholesaler, the wholesaler is responsible for meeting applicable capacity requirements. For wholesale contracts executed or amended on or after January 1, 2025, the contract must specify if the wholesaler will supply water, pressure, or both water and pressure during emergency operations to comply with TWC §13.1394 or §13.1395. (7) All other minimum capacity requirements specified in this section and §290.46(x) and (y) of this title shall apply. (g) Alternative capacity requirements. Public water systems may request approval to meet alternative capacity requirements in lieu of the minimum capacity requirements specified in this section. Any water system requesting to use an alternative capacity requirement must demonstrate to the satisfaction of the executive director that approving the request will not compromise the public health or result in a degradation of service or water quality and comply with the requirements found in §290.46(x) and (y) of this title. Alternative capacity requirements are unavailable for groundwater systems serving fewer than 50 connections without total storage as specified in subsection (b)(1) of this section or for noncommunity water systems as specified in subsections (c) and (d) of this section. (1) Alternative capacity requirements for public water systems may be granted upon request to and approval by the executive director. The request to use an alternative capacity requirement must include: (A) a detailed inventory of the major production, pressurization, and storage facilities utilized by the system; (B) records kept by the water system that document the daily production of the system. The period reviewed shall not be less than three years. The applicant may not use a calculated peak daily demand; (C) data acquired during the last drought period in the region, if required by the executive director; (D) the actual number of active connections for each month during the three years of production data; (E) description of any unusual demands on the system such as fire flows or major main breaks that will invalidate unusual peak demands experienced in the study period; (F) any other relevant data needed to determine that the proposed alternative capacity requirement will provide at least 35 psi in the public water system except during line repair or during firefighting when it cannot be less than 20 psi; and (G) a copy of all data relied upon for making the proposed determination. (2) Alternative capacity requirements for existing public water systems must be based upon the maximum daily demand for the system, unless the request is submitted by a licensed professional engineer in accordance with the requirements of paragraph (3) of this subsection. The maximum daily demand must be determined based upon the daily usage data contained in monthly operating reports for the system during a 36 consecutive month period. The 36 consecutive month period must end within 90 days of the date of submission to ensure the data is as current as possible. (A) Maximum daily demand is the greatest number of gallons, including groundwater, surface water, and purchased water delivered by the system during any single day during the review period. Maximum daily demand excludes unusual demands on the system such as fire flows or major main breaks. (B) For the purpose of calculating alternative capacity requirements, an equivalency ratio must be established. This equivalency ratio must be calculated by multiplying the maximum daily demand, expressed in gpm per connection, by a fixed safety factor and dividing the result by 0.6 gpm per connection. The safety factor shall be 1.15 unless it is documented that the existing system capacity is adequate for the next five years. In this case, the safety factor may be reduced to 1.05. The conditions in §291.93(3) of this title (relating to Adequacy of Water Utility Service) concerning the 85% rule shall continue to apply to public water systems that are also retail public utilities. (C) To calculate the alternative capacity requirements, the equivalency ratio must be multiplied by the appropriate minimum capacity requirements specified in subsection (b) of this section. Standard rounding methods are used to round calculated alternative production capacity requirement values to the nearest one-hundredth. (3) Alternative capacity requirements which are proposed and submitted by licensed professional engineers for review are subject to the following additional requirements. (A) A signed and sealed statement by the licensed professional engineer must be provided which certifies that the proposed alternative capacity requirements have been determined in accordance with the requirements of this subsection. (B) If the system is new or at least 36 consecutive months of data is not available, maximum daily demand may be based upon at least 36 consecutive months of data from a comparable public water system. A licensed professional engineer must certify that the data from another public water system is comparable based on consideration of the following factors: prevailing land use patterns (rural versus urban); number of connections; density of service populations; fire flow obligations; and socio-economic, climatic, geographic, and topographic considerations as well as other factors as may be relevant. The comparable public water system shall not exhibit any of the conditions listed in paragraph (6)(A) of this subsection. (4) The executive director shall consider requests for alternative capacity requirements in accordance with the following requirements. (A) For those requests submitted under the seal of a licensed professional engineer, the executive director must mail written acceptance or denial of the proposed alternative capacity requirements to the public water system within 90 days from the date of submission. If the executive director fails to mail written notification within 90 days, the alternative capacity requirements submitted by a licensed professional engineer automatically become the alternative capacity requirements for the public water system. (B) If the executive director denies the request: (i) the executive director shall mail written notice to the public water system identifying the specific reason or reasons for denial and allow 45 days for the public water system to respond to the reason(s) for denial; (ii) the denial is final if no response from the public water system is received within 45 days of the written notice being mailed; and (iii) the executive director must mail a final written approval or denial within 60 days from the receipt of any response timely submitted by the public water system. (5) Although elevated storage is the preferred method of pressure maintenance for systems of over 2,500 connections, it is recognized that local conditions may dictate the use of alternate methods utilizing hydropneumatic tanks and on-site emergency power equipment. Alternative capacity requirements to the elevated storage requirements may be obtained based on request to and approval by the executive director. Special conditions apply to systems qualifying for an elevated storage alternative capacity requirement. (A) The system must submit documentation sufficient to assure that the alternate method of pressure maintenance is capable of providing a safe and uninterrupted supply of water under pressure to the distribution system during all demand conditions. (i) A signed and sealed statement by a licensed professional engineer must be provided which certifies that the pressure maintenance facilities are sized, designed, and capable of providing a minimum pressure of at least 35 psi at all points within the distribution network at flow rates of 1.5 gpm per connection or greater. In addition, the engineer must certify that the emergency power facilities are capable of providing the greater of the average daily demand or 0.35 gpm per connection while maintaining distribution pressures of at least 20 psi or a pressure approved by the executive director, or 35 psi, as required by TWC §13.1394 and §13.1395, respectively, and that emergency power facilities powering production and treatment facilities are capable of supplying at least 0.35 gpm per connection to storage. (ii) The system's licensed professional engineer must conduct a hydraulic analysis of the system under peak conditions. This must include an analysis of the time lag between the loss of the normal power supply and the commencement of emergency power as well as the minimum pressure that will be maintained within the distribution system during this time lag. In no case shall this minimum pressure within the distribution system be less than 20 psi. The results of this analysis must be submitted to the executive director for review. (iii) For existing systems, the system's licensed professional engineer must provide continuous pressure chart recordings of distribution pressures maintained during past power failures, if available. The period reviewed shall not be less than three years. (iv) A public water system that is an affected utility, defined in TWC §13.1394 or §13.1395, must conduct the modeling requirements contained in clauses (i) - (iii) of this subparagraph using the requirements specified in subsection (h) or (i) of this section. (B) Emergency power facilities must be maintained and provided with necessary appurtenances to assure immediate and dependable operation in case of normal power interruption. A public water system that is an affected utility, defined in TWC §13.1394 or §13.1395, must meet the requirements specified in subsection (h) or (i) of this section. (i) The facilities must be serviced and maintained in accordance with Level 2 maintenance requirements contained in the current NFPA 110 Standard and the manufacturers' recommendations if the affected utility serves 1,000 connections or greater, or in accordance with manufacturer's recommendations and as prescribed in §290.46(m)(8) of this title if the affected utility serves fewer than 1,000 connections. (ii) The switching gear must be capable of bringing the emergency power generating equipment on-line during a power interruption such that the pressure in the distribution network does not fall below 20 psi or a pressure approved by the executive director, or 35 psi, as required by TWC §13.1394 and §13.1395, respectively. (iii) The minimum on-site fuel storage capacity shall be determined by the fuel demand of the emergency power facilities and the frequency of fuel delivery. An amount of fuel equal to that required to operate the emergency power facilities during emergency operations for a period of at least 48 hours must always be maintained on site or made readily available. (iv) Residential rated mufflers or other means of effective noise suppression must be provided on each emergency power motor. (C) Battery-powered or uninterrupted power supply pressure monitors and chart recorders which are configured to activate immediately upon loss of normal power must be provided for pressure maintenance facilities. These records must be kept for a minimum of three years and made available for review by the executive director. Records must include chart recordings of all power interruptions including interruptions due to periodic emergency power under-load testing and maintenance. (6) Any alternative capacity requirement granted under this subsection is subject to review and revocation or revision by the executive director. If permission to use an alternative capacity requirement is revoked, the public water system must meet the applicable minimum capacity requirements of this section. (A) The following conditions, if attributable to the alternative capacity requirements, may constitute grounds for revocation or revision of established alternative capacity requirements or for denial of new requests, if the condition occurred within the last 36 months: (i) documented pressure below 35 psi at any time not related to line repair, except during firefighting when it cannot be less than 20 psi; (ii) water outages due to high water usage; (iii) mandatory water rationing due to high customer demand or overtaxed water production or supply facilities; (iv) failure to meet a minimum capacity requirement or an established alternative capacity requirement; (v) changes in water supply conditions or usage patterns which create a potential threat to public health; or (vi) any other condition where the executive director finds that the alternative capacity requirement has compromised public health or resulted in a degradation of service or water quality. (B) If the executive director finds any of the conditions specified in subparagraph (A) of this paragraph, the process for revocation or revision of an alternative capacity requirement shall be as follows, unless the executive director finds that failure of the service or other threat to public health and safety is imminent under subparagraph (C) of this paragraph. (i) The executive director must mail the public drinking water system written notice of the executive director's intent to revoke or revise an alternative capacity requirement identifying the specific reason(s) for the proposed action. (ii) The public water system has 30 days from the date the written notice is mailed to respond to the proposed action. (iii) The public water system has 30 days from the date the written notice is mailed to request a meeting with the agency's public drinking water program personnel to review the proposal. If requested, such a meeting must occur within 45 days of the date the written notice is mailed. (iv) After considering any response from or after any requested meeting with the public drinking water system, the executive director must mail written notification to the public drinking water system of the executive director's final decision to continue, revoke, or revise an alternative capacity requirement identifying the specific reason(s) for the decision. (C) If the executive director finds that failure of the service or other threat to public health and safety is imminent, the executive director may issue written notification of the executive director's final decision to revoke or revise an alternative capacity requirement at any time. (h) Affected utilities as defined in TWC §13.1394. This subsection applies to all affected utilities, as defined in TWC §13.1394, and is in addition to any other requirements pertaining to emergency power found in this chapter. (1) Affected utilities must provide one or more of the following options to ensure the emergency operation of its water system during an extended power outage at a minimum of 20 psi, or a pressure approved by the executive director, whichever is applicable, and in accordance with the affected utility's approved emergency preparedness plan: (A) the maintenance of automatically starting auxiliary generators; (B) the sharing of auxiliary generator capacity with one or more affected utilities, including through participation in a statewide mutual aid program; (C) the negotiation of leasing and contracting agreements, including emergency mutual aid agreements with other retail public utilities, exempt utilities, or providers, or conveyers of potable water or raw water service, if the agreements provide for coordination with the division of emergency management in the governor's office; (D) the use of portable generators capable of serving multiple facilities equipped with quick-connect systems; (E) the use of on-site electrical generation or electrical distribution generation facilities; (F) hardening of the electric transmission and electric distribution system against damage from natural disasters during an extended power outage; (G) the maintenance of direct engine or right-angle drives; (H) designation of the water system as a critical load facility or redundant, isolated or dedicated electrical feeds; (I) water storage capabilities with sufficient storage to provide water to customers during an extended power outage; (J) water supplies can be delivered from outside the service area of the affected utility by opening an emergency interconnect or using a water hauler; (K) affected utility has ability to provide water through artesian flows; (L) affected utility has ability to open valves between pressure zones to provide redundant interconnectivity between pressure zones; (M) affected utility will implement emergency water demand rules to maintain emergency operations; or (N) any other alternative determined by the executive director to be acceptable. (2) Each affected utility that supplies, provides, or conveys raw surface water shall include in its emergency preparedness plan, under paragraph (1) of this subsection, provisions for demonstrating the capability of each raw water intake pump station, pump station, and pressure facility necessary to provide raw water service to its wholesale customers during emergencies. This does not apply to raw water services that are unnecessary or otherwise subject to interruption or curtailment during emergencies under a contract. (3) Emergency generators used as part of an approved emergency preparedness plan must be inspected, maintained, tested, and operated in accordance with the manufacturer's specifications and as outlined in 290.46(m)(8) of this title. (4) An affected utility may adopt and is encouraged to enforce limitations on water use while the utility is providing emergency operations. (5) As soon as safe and practicable following the occurrence of a natural disaster, an affected utility must operate in accordance with its approved emergency preparedness plan, which may include using elevated storage. An affected utility may meet the requirements of TWC §13.1394 including having a currently approved emergency preparedness plan, in lieu of any other rules regarding elevated storage requirements, provided that, under normal operating conditions, the affected utility continues to meet the pressure requirements of §290.46(r) of this title (related to Minimum Acceptable Operating Practices for Public Drinking Water Systems) and the production, treatment, total storage, and service pump capacity requirements of this subchapter. (6) An affected utility must maintain on-site, or make readily available during emergency operations, an amount of fuel necessary to operate any required emergency power equipment necessary to maintain emergency operations for at least 48 hours. (7) Each affected utility must implement its emergency preparedness plan upon approval by the executive director. (i) Affected utilities as defined by TWC §13.1395. This subsection applies to all affected utilities as defined by TWC §13.1395 and is in addition to any other requirements pertaining to emergency power found in this subchapter. (1) Affected utilities must provide one of the following options of sufficient power to meet the capacity requirements of paragraph (1) or (2) of this subsection, whichever is applicable, and in accordance with the affected utility's approved emergency preparedness plan: (A) the maintenance of automatically starting auxiliary generators; (B) the sharing of auxiliary generator capacity with one or more affected utilities; (C) the negotiation of leasing and contracting agreements, including emergency mutual aid agreements with other retail public utilities, exempt utilities, or providers, or conveyors of potable or raw water service, if the agreements provide for coordination with the division of emergency management in the governor's office; (D) the use of portable generators capable of serving multiple facilities equipped with quick-connect systems; (E) the use of on-site electrical generation or electrical distributed generation facilities; (F) hardening of the electric transmission and electric distribution system against damage from natural disasters during an extended power outage; (G) the maintenance of direct engine or right-angle drives; or (H) any other alternative determined by the executive director to be acceptable. (2) Each affected utility that supplies, provides, or conveys surface water to wholesale customers shall install and maintain automatically starting auxiliary generators or distributive generation facilities for each raw water intake pump station, water treatment plant, pump station, and pressure facility necessary to provide water to its wholesale customers. This does not apply to raw water services that are unnecessary or otherwise subject to interruption or curtailment during emergencies under a contract. (3) Emergency generators used as part of an approved emergency preparedness plan must be maintained, tested, and operated in accordance with Level 2 maintenance requirements contained in the current NFPA 110 Standard and the manufacturers specifications if the affected utility serves 1,000 connections or greater, or the manufacturer's specifications and as outlined in §290.46(m)(8) of this title for affected utilities serving fewer than 1,000 connections. (4) An affected utility may adopt and is encouraged to enforce limitations on water use while the utility is providing emergency operations. (5) As soon as safe and practicable following the occurrence of a natural disaster, an affected utility must operate in accordance with its approved emergency preparedness plan, which may include using elevated storage. An affected utility may meet the requirements of TWC §13.1395, including having a currently approved emergency preparedness plan, in lieu of any other rules regarding elevated storage requirements, provided that, under normal operating conditions, the affected utility continues to meet the pressure requirements of §290.46(r) of this title and the production, treatment, total storage and service pump capacity requirements of this subchapter. (6) An affected utility must maintain on-site, or make readily available during emergency operations, an amount of fuel necessary to operate any required emergency power equipment necessary to maintain emergency operations for at least 48 hours. (7) Each affected utility must implement their emergency preparedness plan upon approval by the executive director. (j) Alternative recreational vehicle park connection equivalency. If the actual water usage of a recreational vehicle park that is a retail customer of a public water system is less than 90 percent of the average daily demand of 45.0 gallons per day per recreational vehicle site, the public water system may use an alternative recreational vehicle park connection equivalency calculated using the following figure. The alternative recreational vehicle park connection equivalency will be reviewed during on-site compliance inspections. Attached Graphic(1) To determine the alternative recreational vehicle park connection equivalency, the public water system must calculate the recreational vehicle park's actual average daily demand. (2) For the purposes of this paragraph, the actual average daily demand is determined based upon at least 12 consecutive months of meter readings for the recreational vehicle park, divided by the total number of days in those months. The actual average daily demand is then divided by the number of recreational vehicle sites and cabin sites within the recreational vehicle park, whether occupied or not.</content><note type="source"><p>Source Note: The provisions of this §290.45 adopted to be effective October 1, 1992, 17 TexReg 6455; amended to be effective November 3, 1995, 20 TexReg 8620; amended to be effective February 4, 1999, 24 TexReg 731; amended to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective January 30, 2003, 28 TexReg 697; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective December 10, 2009, 34 TexReg 8744; amended to be effective September 11, 2014, 39 TexReg7145; amended to be effective July 30, 2015, 40 TexReg 4769; amended to be effective December 21, 2023, 48 TexReg 7585; amended to be effective January 9, 2025, 50 TexReg 159.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scD/s290.46"><num value="290.46">§290.46</num><heading>Minimum Acceptable Operating Practices for Public Drinking Water Systems</heading><content>(a) General. When a public drinking water supply system is to be established, plans shall be submitted to the executive director for review and approval prior to the construction of the system. All public water systems are to be constructed in conformance with the requirements of this subchapter and maintained and operated in accordance with the following minimum acceptable operating practices. Owners and operators shall allow entry to members of the commission and employees and agents of the commission onto any public or private property at any reasonable time for the purpose of inspecting and investigating conditions relating to public water systems in the state including the required elements of a sanitary survey as defined in §290.38 of this title (relating to Definitions). Members, employees, or agents acting under this authority shall observe the establishment's rules and regulations concerning safety, internal security, and fire protection, and if the property has management in residence, shall notify management or the person then in charge of his presence and shall exhibit proper credentials. (b) Microbiological. Submission of samples for microbiological analysis shall be as required by Subchapter F of this chapter (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Systems). Microbiological samples may be required by the executive director for monitoring purposes in addition to the routine samples required by the drinking water standards. These samples shall be submitted to an accredited laboratory. (A list of the accredited laboratories can be obtained by contacting the executive director.) The samples shall be submitted to the executive director in a manner prescribed by the executive director. (c) Chemical. Samples for chemical analysis shall be submitted as directed by the executive director. (d) Disinfectant residuals and monitoring. A disinfectant residual must be continuously maintained during the treatment process and throughout the distribution system. (1) Disinfection equipment shall be operated and monitored in a manner that will assure compliance with the requirements of §290.110 of this title (relating to Disinfectant Residuals). (2) The disinfection equipment shall be operated to maintain the following minimum disinfectant residuals in each finished water storage tank and throughout the distribution system at all times: (A) a free chlorine residual of 0.2 milligrams per liter (mg/L); or (B) a chloramine residual of 0.5 mg/L (measured as total chlorine) for those systems that distribute chloraminated water. (e) Operation by trained and licensed personnel. Except as provided in paragraph (1) of this subsection, the production, treatment, and distribution facilities at the public water system must be operated at all times under the direct supervision of a water works operator who holds an applicable, valid license issued by the executive director. Except as provided in paragraph (1) of this subsection, all public water systems must use a water works operator who holds an applicable, valid license issued by the executive director to meet the requirements of this subsection. The licensed operator of a public water system may be an employee, contractor, or volunteer. (1) Transient, noncommunity public water systems are exempt from the requirements of this subsection if they use only groundwater or purchase treated water from another public water system. (2) All public water systems that are subject to the provisions of this subsection shall meet the following requirements. (A) Public water systems shall not allow new or repaired production, treatment, storage, pressure maintenance, or distribution facilities to be placed into service without the prior guidance and approval of a licensed water works operator. (B) Public water systems shall ensure that their operators are trained regarding the use of all chemicals used in the water treatment plant. Training programs shall meet applicable standards established by the Occupational Safety and Health Administration or the Texas Hazard Communication Act, Texas Health and Safety Code, Chapter 502. (C) Public water systems using chlorine dioxide shall place the operation of the chlorine dioxide facilities under the direct supervision of a licensed operator who has a Class "C" or higher license. (D) Effective September 1, 2016, reverse osmosis or nanofiltration membrane systems must have operators that have successfully completed at least one executive director-approved training course or event specific to the operations and maintenance of reverse osmosis or nanofiltration membrane treatment. (3) Systems that only purchase treated water shall meet the following requirements in addition to the requirements contained in paragraph (2) of this subsection. (A) Purchased water systems serving no more than 250 connections must use an operator who holds a Class "D" or higher license. (B) Purchased water systems serving more than 250 connections, but no more than 1,000 connections, must use an operator who holds a Class "C" or higher license. (C) Purchased water systems serving more than 1,000 connections must use at least two operators who hold a Class "C" or higher license and who each work at least 16 hours per month at the public water system's treatment or distribution facilities. (4) Systems that treat groundwater and do not treat surface water or groundwater that is under the direct influence of surface water shall meet the following requirements in addition to the requirements contained in paragraph (2) of this subsection. (A) Groundwater systems serving no more than 250 connections must use an operator with a Class "D" or higher license. (B) Groundwater systems serving more than 250 connections, but no more than 1,000 connections, must use an operator with a Class "C" or higher groundwater license. (C) Groundwater systems serving more than 1,000 connections must use at least two operators who hold a Class "C" or higher groundwater license and who each work at least 16 hours per month at the public water system's production, treatment, or distribution facilities. (5) Systems that treat groundwater that is under the direct influence of surface water must meet the following requirements in addition to the requirements contained in paragraph (2) of this subsection. (A) Systems which serve no more than 1,000 connections and utilize cartridge or membrane filters must use an operator who holds a Class "C" or higher groundwater license and has completed a four-hour training course on monitoring and reporting requirements or who holds a Class "C" or higher surface water license and has completed the Groundwater Production course. (B) Systems which serve more than 1,000 connections and utilize cartridge or membrane filters must use at least two operators who meet the requirements of subparagraph (A) of this paragraph and who each work at least 24 hours per month at the public water system's production, treatment, or distribution facilities. (C) Systems which serve no more than 1,000 connections and utilize coagulant addition and direct filtration must use an operator who holds a Class "C" or higher surface water license and has completed the Groundwater Production course or who holds a Class "C" or higher groundwater license and has completed a Surface Water Production course. Effective January 1, 2007, the public water system must use at least one operator who has completed the Surface Water Production I course and the Surface Water Production II course. (D) Systems which serve more than 1,000 connections and utilize coagulant addition and direct filtration must use at least two operators who meet the requirements of subparagraph (C) of this paragraph and who each work at least 24 hours per month at the public water system's production, treatment, or distribution facilities. Effective January 1, 2007, the public water system must use at least two operators who have completed the Surface Water Production I course and the Surface Water Production II course. (E) Systems which utilize complete surface water treatment must comply with the requirements of paragraph (6) of this subsection. (F) Each plant must have at least one Class "C" or higher operator on duty at the plant when it is in operation or the plant must be provided with continuous turbidity and disinfectant residual monitors with automatic plant shutdown and alarms to summon operators so as to ensure that the water produced continues to meet the commission's drinking water standards during periods when the plant is not staffed. (6) Systems that treat surface water must meet the following requirements in addition to the requirements contained in paragraph (2) of this subsection. (A) Surface water systems that serve no more than 1,000 connections must use at least one operator who holds a Class "B" or higher surface water license. Part-time operators may be used to meet the requirements of this subparagraph if the operator is completely familiar with the design and operation of the plant and spends at least four consecutive hours at the plant at least once every 14 days and the system also uses an operator who holds a Class "C" or higher surface water license. Effective January 1, 2007, the public water system must use at least one operator who has completed the Surface Water Production I course and the Surface Water Production II course. (B) Surface water systems that serve more than 1,000 connections must use at least two operators; one of the required operators must hold a Class "B" or higher surface water license and the other required operator must hold a Class "C" or higher surface water license. Each of the required operators must work at least 32 hours per month at the public water system's production, treatment, or distribution facilities. Effective January 1, 2007, the public water system must use at least two operators who have completed the Surface Water Production I course and the Surface Water Production II course. (C) Each surface water treatment plant must have at least one Class "C" or higher surface water operator on duty at the plant when it is in operation or the plant must be provided with continuous turbidity and disinfectant residual monitors with automatic plant shutdown and alarms to summon operators so as to ensure that the water produced continues to meet the commission's drinking water standards during periods when the plant is not staffed. (D) Public water systems shall not allow Class "D" operators to adjust or modify the treatment processes at surface water treatment plant unless an operator who holds a Class "C" or higher surface license is present at the plant and has issued specific instructions regarding the proposed adjustment. (f) Operating records and reports. All public water systems must maintain a record of water works operation and maintenance activities and submit periodic operating reports. (1) The public water system's operating records must be organized, and copies must be kept on file or stored electronically. (2) The public water system's operating records must be accessible for review during inspections and be available to the executive director upon request. (3) All public water systems shall maintain a record of operations. (A) The following records shall be retained for at least two years: (i) the amount of chemicals used: (I) Systems that treat surface water or groundwater under the direct influence of surface water shall maintain a record of the amount of each chemical used each day. (II) Systems that serve 250 or more connections or serve 750 or more people shall maintain a record of the amount of each chemical used each day. (III) Systems that serve fewer than 250 connections, serve fewer than 750 people, and use only groundwater or purchased treated water shall maintain a record of the amount of each chemical used each week; (ii) the volume of water treated and distributed: (I) Systems that treat surface water or groundwater under the direct influence of surface water shall maintain a record of the amount of water treated and distributed each day. (II) Systems that serve 250 or more connections or serve 750 or more people shall maintain a record of the amount of water distributed each day. (III) Systems that serve fewer than 250 connections, serve fewer than 750 people, and use only groundwater or purchase treated water shall maintain a record of the amount of water distributed each week. (IV) Systems that serve 250 or more connections or serve 750 or more people and also add chemicals or provide pathogen or chemical removal shall maintain a record of the amount of water treated each day. (V) Systems that serve fewer than 250 connections, serve fewer than 750 people, use only groundwater or purchase treated water, and also add chemicals or provide pathogen or chemical removal shall maintain a record of the amount of water treated each week; (iii) the date, location, and nature of water quality, pressure, or outage complaints received by the system and the results of any subsequent complaint investigation; (iv) the dates that dead-end mains were flushed; (v) the dates that storage tanks and other facilities were cleaned; (vi) the maintenance records for water system equipment and facilities. For systems using reverse osmosis or nanofiltration, maintain records of each clean-in-place process including the date, duration, and procedure used for each event; (vii) for systems that do not employ full-time operators to meet the requirements of subsection (e) of this section, a daily record or a monthly summary of the work performed and the number of hours worked by each of the part-time operators used to meet the requirements of subsection (e) of this section; and (viii) the owner or manager of a public water system that is operated by a volunteer to meet the requirements of subsection (e) of this section, shall maintain a record of each volunteer operator indicating the name of the volunteer, contact information for the volunteer, and the time period for which the volunteer is responsible for operating the public water system. These requirements apply to full-time and part-time licensed volunteer operators. Part-time licensed volunteer operators are excluded from the requirements of clause (vii) of this subparagraph. (B) The following records shall be retained for at least three years: (i) copies of notices of violation and any resulting corrective actions. The records of the actions taken to correct violations of primary drinking water regulations must be retained for at least three years after the last action taken with respect to the particular violation involved; (ii) copies of any public notice issued by the water system; (iii) the disinfectant residual monitoring results from the distribution system; (iv) the calibration records for laboratory equipment, flow meters, rate-of-flow controllers, on-line turbidimeters, and on-line disinfectant residual analyzers; (v) the records of backflow prevention device programs; (vi) the raw surface water monitoring results and source water monitoring plans required by §290.111 of this title (relating to Surface Water Treatment) must be retained for three years after bin classification required by §290.111 of this title; (vii) notification to the executive director that a system will provide 5.5-log Cryptosporidium treatment in lieu of raw surface water monitoring; (viii) except for those specified in subparagraphs (C)(iv) and (E)(i) of this paragraph, the results of all surface water treatment monitoring that are used to demonstrate log inactivation or removal; (ix) free and total chlorine, monochloramine, ammonia, nitrite, and nitrate monitoring results if chloramines are used in the water system; and (x) the records of treatment effectiveness monitoring for systems using reverse osmosis or nanofiltration membranes. Treatment effectiveness monitoring includes the parameters for determining when maintenance is required. Examples of parameters to be monitored include conductivity (or total dissolved solids) on each membrane unit, pressure differential across a membrane vessel, flow, flux, and water temperature. At a minimum, systems using reverse osmosis or nanofiltration membranes must monitor the conductivity (or total dissolved solids) of the feed and permeate water once per day. (C) The following records shall be retained for a period of five years after they are no longer in effect: (i) the records concerning a variance or exemption granted to the system; (ii) Concentration Time (CT) studies for surface water treatment plants; (iii) the Recycling Practices Report form and other records pertaining to site-specific recycle practices for treatment plants that recycle; and (iv) the turbidity monitoring results and exception reports for individual filters as required by §290.111 of this title. (D) The following records shall be retained for at least five years: (i) the results of microbiological analyses; (ii) the results of inspections (as required in subsection (m)(1) of this section) for all water storage and pressure maintenance facilities; (iii) the results of inspections (as required by subsection (m)(2) of this section) for all pressure filters; (iv) documentation of compliance with state approved corrective action plan and schedules required to be completed by groundwater systems that must take corrective actions; (v) documentation of the reason for an invalidated fecal indicator source sample and documentation of a total coliform-positive sample collected at a location with conditions that could cause such positive samples in a distribution system; (vi) notification to wholesale system(s) of a distribution coliform-positive sample for consecutive systems using groundwater; (vii) Consumer Confidence Report compliance documentation; (viii) records of the lowest daily residual disinfectant concentration and records of the date and duration of any failure to maintain the executive director-approved minimum specified disinfectant residual for a period of more than four hours for groundwater systems providing 4-log treatment; (ix) records of executive director-specified compliance requirements for membrane filtration, records of parameters specified by the executive director for approved alternative treatment and records of the date and duration of any failure to meet the membrane operating, membrane integrity, or alternative treatment operating requirements for more than four hours for groundwater systems. Membrane filtration can only be used if it is approved by the executive director and if it can be properly validated; (x) assessment forms, regardless of who conducts the assessment, and documentation of corrective actions completed or documentation of corrective actions required but not yet completed as a result of those assessments and any other available summary documentation of the sanitary defects and corrective actions taken in accordance with §290.109 of this title (relating to Microbial Contaminants) for executive director review; (xi) seasonal public water systems shall maintain executive director-approved start-up procedures and certification documentation in accordance with §290.109 of this title for executive director review; and (xii) records of any repeat sample taken that meets the criteria for an extension of the 24-hour period for collecting repeat samples under §290.109 of this title. (E) The following records shall be retained for at least ten years: (i) copies of Monthly Operating Reports and any supporting documentation including turbidity monitoring results of the combined filter effluent; (ii) the results of chemical analyses; (iii) any written reports, summaries, or communications relating to sanitary surveys of the system conducted by the system itself, by a private consultant, or by the executive director shall be kept for a period not less than ten years after completion of the survey involved; (iv) copies of the Customer Service Inspection reports required by subsection (j) of this section; (v) copy of any Initial Distribution System Evaluation (IDSE) plan, report, approval letters, and other compliance documentation required by §290.115 of this title (relating to Stage 2 Disinfection Byproducts (TTHM and HAA5)); (vi) state notification of any modifications to an IDSE report; (vii) copy of any 40/30 certification required by §290.115 of this title; (viii) documentation of corrective actions taken by groundwater systems in accordance with §290.116 of this title (relating to Groundwater Corrective Actions and Treatment Techniques); (ix) any Sample Siting Plans required by §290.109(d)(6) of this title and monitoring plans required by §290.121(b) of this title (relating to Monitoring Plans); and (x) records of the executive director-approved minimum specified disinfectant residual and executive director-approved membrane system integrity monitoring results for groundwater systems providing 4-log treatment, including wholesale, and consecutive systems, regulated under §290.116(c) of this title. (F) A public water system shall maintain records relating to lead and copper requirements under §290.117 of this title (relating to Regulation of Lead and Copper) for no less than 12 years. Any system subject to the requirements of §290.117 of this title shall retain on its premises original records of all sampling data and analyses, reports, surveys, letters, evaluations, schedules, executive determinations, and any other information required by the executive director under §290.117 of this title. These records include, but are not limited to, the following items: tap water monitoring results including the location of each site and date of collection; certification of the volume and validity of first-draw-tap sample criteria via a copy of the laboratory analysis request form; where residents collected the sample; certification that the water system informed the resident of proper sampling procedures; the analytical results for lead and copper concentrations at each tap sample site; and designation of any substitute site not used in previous monitoring periods. (G) A public water system shall maintain records relating to special studies and pilot projects, special monitoring, and other system-specific matters as directed by the executive director. (4) Public water systems shall submit routine reports and any additional documentation that the executive director may require to determine compliance with the requirements of this chapter. (A) The reports must be submitted to the Texas Commission on Environmental Quality, Water Supply Division, MC 155, P.O. Box 13087, Austin, Texas 78711-3087 by the tenth day of the month following the end of the reporting period. (B) The reports must contain all the information required by the drinking water standards and the results of any special monitoring tests which have been required. (C) The reports must be completed in ink, typed, or computer-printed and must be signed by the licensed water works operator. (5) All public water systems that are affected utilities under TWC §13.1394 or §13.1395 must maintain the following records for as long as they are applicable to the system: (A) An emergency preparedness plan approved by the executive director and a copy of the approval letter. (B) All required operating, inspection, testing, and maintenance records for auxiliary power equipment, and associated components required to be maintained, or actions performed as prescribed in §290.46(m)(8) of this title. (C) Copies of the manufacturer's specifications for all generators that are part of the approved emergency preparedness plan. (g) Disinfection of new or repaired facilities. Disinfection by or under the direction of water system personnel must be performed when repairs are made to existing facilities and before new facilities are placed into service. Disinfection must be performed in accordance with American Water Works Association (AWWA) requirements and water samples must be submitted to an accredited laboratory. The sample results must indicate that the facility is free of microbiological contamination before it is placed into service. When it is necessary to return repaired mains to service as rapidly as possible, doses may be increased to 500 mg/L and the contact time reduced to 1/2 hour. (h) Calcium hypochlorite. A supply of calcium hypochlorite disinfectant shall be kept on hand for use when making repairs, setting meters, and disinfecting new mains prior to placing them in service. (i) Plumbing ordinance. Public water systems must adopt an adequate plumbing ordinance, regulations, or service agreement with provisions for proper enforcement to ensure that neither cross-connections nor other unacceptable plumbing practices are permitted (See §290.47(b) of this title (relating to Appendices)). Should sanitary control of the distribution system not reside with the purveyor, the entity retaining sanitary control shall be responsible for establishing and enforcing adequate regulations in this regard. The use of pipes and pipe fittings that contain more than 0.25% lead or solders and flux that contain more than 0.2% lead is prohibited for installation or repair of any public water supply and for installation or repair of any plumbing in a residential or nonresidential facility providing water for human consumption and connected to a public drinking water supply system. This requirement may be waived for lead joints that are necessary for repairs to cast iron pipe. (j) Customer service inspections. A customer service inspection certificate shall be completed prior to providing continuous water service to new construction, on any existing service either when the water purveyor has reason to believe that cross-connections or other potential contaminant hazards exist, or after any material improvement, correction, or addition to the private water distribution facilities. Any customer service inspection certificate form which varies from the format found in commission Form 20699 must be approved by the executive director prior to being placed in use. (1) Individuals with the following credentials shall be recognized as capable of conducting a customer service inspection certification. (A) Plumbing Inspectors and Water Supply Protection Specialists licensed by the Texas State Board of Plumbing Examiners (TSBPE). (B) Customer service inspectors who have completed a commission-approved course, passed an examination administered by the executive director, and hold current professional license as a customer service inspector. (2) As potential contaminant hazards are discovered, they shall be promptly eliminated to prevent possible contamination of the water supplied by the public water system. The existence of a health hazard, as identified in §290.47(f) of this title, shall be considered sufficient grounds for immediate termination of water service. Service can be restored only when the health hazard no longer exists, or until the health hazard has been isolated from the public water system in accordance with §290.44(h) of this title (relating to Water Distribution). (3) These customer service inspection requirements are not considered acceptable substitutes for and shall not apply to the sanitary control requirements stated in §290.102(a)(5) of this title (relating to General Applicability). (4) A customer service inspection is an examination of the private water distribution facilities for the purpose of providing or denying water service. This inspection is limited to the identification and prevention of cross-connections, potential contaminant hazards, and illegal lead materials. The customer service inspector has no authority or obligation beyond the scope of the commission's regulations. A customer service inspection is not a plumbing inspection as defined and regulated by the TSBPE. A customer service inspector is not permitted to perform plumbing inspections. State statutes and TSBPE adopted rules require that TSBPE licensed plumbing inspectors perform plumbing inspections of all new plumbing and alterations or additions to existing plumbing within the municipal limits of all cities, towns, and villages which have passed an ordinance adopting one of the plumbing codes recognized by TSBPE. Such entities may stipulate that the customer service inspection be performed by the plumbing inspector as a part of the more comprehensive plumbing inspection. Where such entities permit customer service inspectors to perform customer service inspections, the customer service inspector shall report any violations immediately to the local entity's plumbing inspection department. (k) Interconnection. No physical connection between the distribution system of a public drinking water supply and that of any other water supply shall be permitted unless the other water supply is of a safe, sanitary quality and the interconnection is approved by the executive director. (l) Flushing of mains. All dead-end mains must be flushed at monthly intervals. Dead-end lines and other mains shall be flushed as needed if water quality complaints are received from water customers or if disinfectant residuals fall below acceptable levels as specified in §290.110 of this title. (m) Maintenance and housekeeping. The maintenance and housekeeping practices used by a public water system shall ensure the good working condition and general appearance of the system's facilities and equipment. The grounds and facilities shall be maintained in a manner so as to minimize the possibility of the harboring of rodents, insects, and other disease vectors, and in such a way as to prevent other conditions that might cause the contamination of the water. (1) Each of the system's ground, elevated, and pressure tanks shall be inspected annually by water system personnel or a contracted inspection service. (A) Ground and elevated storage tank inspections must determine that the vents are in place and properly screened, the roof hatches closed and locked, flap valves and gasketing provide adequate protection against insects, rodents, and other vermin, the interior and exterior coating systems are continuing to provide adequate protection to all metal surfaces, and the tank remains in a watertight condition. (B) Pressure tank inspections must determine that the pressure release device and pressure gauge are working properly, the air-water ratio is being maintained at the proper level, the exterior coating systems are continuing to provide adequate protection to all metal surfaces, and the tank remains in watertight condition. Pressure tanks provided with an inspection port must have the interior surface inspected every five years. (C) All tanks shall be inspected annually to determine that instrumentation and controls are working properly. (2) When pressure filters are used, a visual inspection of the filter media and internal filter surfaces shall be conducted annually to ensure that the filter media is in good condition and the coating materials continue to provide adequate protection to internal surfaces. (3) When cartridge filters are used, filter cartridges shall be changed at the frequency required by the manufacturer, or more frequently if needed. (4) All water treatment units, storage and pressure maintenance facilities, distribution system lines, and related appurtenances shall be maintained in a watertight condition and be free of excessive solids. (5) Basins used for water clarification shall be maintained free of excessive solids to prevent possible carryover of sludge and the formation of tastes and odors. (6) Pumps, motors, valves, and other mechanical devices shall be maintained in good working condition. (7) Reverse osmosis or nanofiltration membrane systems shall be cleaned, or replaced, in accordance with the allowable operating conditions of the manufacturer and shall be based on one or more of the following: increased salt passage, increased or decreased pressure differential, and/or change in normalized permeate flow. (8) Emergency generators must be appropriately tested and maintained monthly under at least 30% load based on the manufacturer's name plate kilowatt (kW) rating for at least 30 minutes, or as recommended by the manufacturer, to ensure functionality during emergency situations. (A) Emergency generators operated at water systems serving 1,000 connections or greater must be maintained in accordance with Level 2 maintenance requirements contained in the current National Fire Protection Association (NFPA) 110 Standard and manufacturer's recommendation. In addition, the water system must maintain an inventory of operational maintenance items, lubricants, and coolants for critical generator components. (B) Emergency generators operated at water systems serving fewer than 1,000 connections must be maintained according to clauses (i) - (x) of this subparagraph, supplemented with any additional requirements not listed below as prescribed in the manufacturer's specifications, or Level 2 maintenance requirements contained in NFPA 110 Standard. In addition, the public water system must maintain an inventory of operational maintenance items, lubricants, and coolants for critical generator components. (i) Prior to monthly generator start-up, inspect and perform any needed maintenance on the generator fuel system. (I) Document tank levels and inspect fuel tanks for fuel contamination and condensation in the portion of the tank occupied by air. If contamination is suspected, replace or polish the contaminated fuel before use. (II) Inspect fuel lines and fittings for breaks and degradation. Replace fuel lines if needed. (III) Inspect fuel filters and water separators for water accumulation, clogging and sediment buildup. Replace fuel filters and separators at the frequency recommended by the manufacturer, or as needed. (IV) Inspect fuel transfer pumps, float switches and valves, where provided, between holding tanks and the generator to verify that they are operating properly. (V) Where provided, inspect fuel tank grounding rods, cathodic and generator lightning protection for damage that may render the protection ineffective. (ii) While the generator is operating under load, inspect the fuel pump to verify that it is operating properly. (iii) Prior to monthly generator start up, inspect and perform any needed maintenance on the generator lubrication system. (I) Inspect oil lines and oil reservoirs for adequate oil levels, leaks, breaks and degradation. Change oil at the frequency recommended by the manufacturer. (II) Grease all bearing components and grease fittings at the frequency recommended by the manufacturer. (iv) Prior to monthly generator start up, inspect and perform any needed maintenance on the generator coolant system. (I) Inspect the block heater, coolant lines and coolant reservoirs for adequate coolant levels, leaks, breaks and degradation; replace as needed. (II) Inspect coolant filters for clogging and sediment buildup. Replace coolant filters at the frequency recommended by the manufacturer, or as needed. (III) Inspect the radiator, fan system, belts and air intake and filters for obstruction, cracks, breaks, and leaks; replace as needed. (v) While the generator is operating under load, inspect the exhaust manifold and muffler to verify that they are not obstructed or leaking, are in good working condition and that fumes are directed away from enclosed areas. (vi) Where a generator is located inside an enclosed structure, a carbon monoxide monitor equipped with automatic alarms and generator shutdowns must be present and operational. (vii) Prior to monthly generator start up, inspect and perform any needed maintenance on the generator electrical system. (I) Confirm that all batteries are mounted and properly secured. Inspect battery chargers, wiring and cables for damage, corrosion, connection continuity, and that all contacts are securely tightened onto battery terminals. (II) Inspect each battery unit for adequate electrolyte levels, charge retention and appropriate discharge voltage. (viii) While the generator is operating under load, inspect engine starters and alternators to verify that they are operating properly. (ix) At least once per month, inspect Programmable Logic Controllers (PLC) and Uninterrupted Power Supplies (UPC), where applicable, to ensure that they are water-tight and not subject to floods, are properly ventilated, and that backup power supplies have adequate charge. (x) At least once per month, inspect switch gears to ensure they are water-tight and in good, working condition. (9) All critical components as described in the table in §290.47(c) associated to the source, treatment, storage, or other facilities necessary for the continued operations and distribution of water to customers must be protected from adverse weather conditions. Weatherization methods must be maintained in good condition and replaced as needed to ensure adequate protection. (n) Engineering plans and maps. Plans, specifications, maps, and other pertinent information shall be maintained to facilitate the operation and maintenance of the system's facilities and equipment. The following records shall be maintained on file at the public water system and be available to the executive director upon request. (1) Accurate and up-to-date detailed as-built plans or record drawings and specifications for each treatment plant, pump station, and storage tank shall be maintained at the public water system until the facility is decommissioned. As-built plans of individual projects may be used to fulfill this requirement if the plans are maintained in an organized manner. (2) An accurate and up-to-date map of the distribution system shall be available so that valves and mains can be easily located during emergencies. (3) Copies of well completion data as defined in §290.41(c)(3)(A) of this title (relating to Water Sources) shall be kept on file for as long as the well remains in service. (o) Filter backwashing at surface water treatment plants. Filters must be backwashed when a loss of head differential of six to ten feet is experienced between the influent and effluent loss of head gauges or when the turbidity level at the effluent of the filter reaches 1.0 nephelometric turbidity unit (NTU). (p) Data on public water system ownership and management. The agency shall be provided with information regarding public water system ownership and management. (1) When a public water system changes ownership, a written notice of the transaction must be provided to the executive director. The grantee shall notify the executive director of the change in ownership within 30 days after the effective date of the change in ownership by providing the name of the grantor, the effective date of the change in ownership, the physical and mailing address and phone number of the grantee, the public water system's drinking water supply identification number, and any other information necessary to identify the transaction. (2) On an annual basis, the owner of a public water system shall provide the executive director with a list of all the operators and operating companies that the public water system uses. The notice shall contain the name, contact information, work status, license number, and license class of each operator and the name and registration number of each operating company. Public water systems may report the list of operators and operating companies to the executive director by utilizing the Texas Commission on Environmental Quality (TCEQ) online "Operator Notice" form. If reporting cannot be accomplished utilizing the TCEQ online "Operator Notice" form, then a public water system may report the list of operators and operating companies on the written "Operator Notice" form to the executive director by mail, email or facsimile. (See §290.47(d) of this title). (q) Special precautions, protective measures, and boil water notices. Special precautions, protective measures, and boil water notices shall be instituted by the public water system as specified in this subsection in the event of low distribution pressures (below 20 pounds per square inch (psi)), water outages, microbiological samples found to contain Escherichia coli (E. coli ) (or other approved fecal indicator), failure to maintain adequate disinfectant residuals, elevated finished water turbidity levels, or other conditions which indicate that the potability of the drinking water supply has been compromised. Special precautions, protective measures, and boil water notices are corrective or protective actions which shall be instituted by the public water system to comply with the requirements of this subsection. (1) A public water system shall issue a boil water notice, special precaution, or protective measure to customers throughout the distribution system or in the affected area(s) of the distribution system as soon as possible, but in no case later than 24 hours after the public water system has met any of the criteria described in subparagraph (A) and (B) of this paragraph. (A) Situations requiring boil water notices: (i) The flowchart found in §290.47(e) of this title shall be used to determine if a boil water notice shall be issued by the public water system to customers in the event of a loss of distribution system pressure. (ii) A public water system shall issue a boil water notice to customers for a violation of the MCL for E. coli (or other approved fecal indicator) as described in §290.109(b)(1) of this title. (iii) A public water system shall issue a boil water notice to customers if the combined filter effluent turbidity of the finished water, produced by a treatment plant that is treating surface water or groundwater under the direct influence of surface water, is above the turbidity level requirements as described in §290.122(a)(1)(B) of this title. (iv) A public water system shall issue a boil water notice to customers if the public water system has failed to maintain adequate disinfectant residuals as described in subsection (d) of this section and as described in §290.110 of this title (relating to Disinfectant Residuals) for more than 24 hours. (v) A public water system shall issue a boil water notice to customers if a waterborne disease outbreak occurs as defined in 40 Code for Federal Regulations §141.2. (B) Situations requiring special precautions or protective measures may be determined by the public water system or at the discretion of the executive director, as described in paragraph (5) of this subsection. (2) Boil water notices, special precautions, or protective measures shall be issued to customers by using one or more of the Tier 1 delivery methods as described in §290.122(a)(2) of this title (relating to Public Notification) and shall be issued using the applicable language and format specified by the executive director. (3) A copy of boil water notice, special precaution, or protective measure issued shall be provided to the executive director electronically, within 24 hours or no later than the next business day after the issuance by the public water system, and a signed Certificate of Delivery shall be provided to the executive director within ten days after issuance by the public water system in accordance with §290.122(f) of this title. (4) Boil water notices, special precautions, or protective measures shall be multilingual where appropriate, based upon local demographics. (5) Special precautions, protective measures, and boil water notices may be required at the discretion of the executive director and shall be instituted by the public water system, upon written notification to the public water system, and shall remain in effect until the public water system meets the requirements of subparagraph (C) of this paragraph and paragraph (6) of this subsection. (A) Circumstances warranting the exercise of such discretion may include: (i) the public water system has failed to provide any of the required compliance information to the executive director as described in §290.111(h)(2) of this title (relating to Surface Water Treatment) and the failure results in the inability of the executive director to determine compliance as described in §290.111(i) of this title or the existence of a potential or actual health hazard, as described in §290.38 of this title (relating to Definitions); or (ii) waterborne emergencies for situations that do not meet the definition of waterborne disease outbreak as defined in 40 Code of Federal Regulations §141.2, but that still have the potential to have serious adverse health effects as a result of short-term exposure. These can include, but are not limited to, outbreaks not related to treatment deficiencies, as well as situations that have the potential to cause outbreaks, such as failures or significant interruption in water treatment processes, natural disasters that disrupt the water supply or distribution system, chemical spills, or unexpected loading of possible pathogens into the source water. (B) The executive director will provide written notification to the public water system in the event a public water system is required to institute special precautions, protective measures, or issue boil water notices to customers at the discretion of the executive director. Upon written notification from the executive director, the public water system shall implement special precautions, protective measures, or issue boil water notices to customers within 24 hours or within the time period specified by the executive director. The executive director may specify, in writing, additional required actions to the requirements described in paragraph (6) of this subsection for a public water system to rescind the notice. (C) The public water system shall provide any required information to the executive director to document that the public water system has met the rescind requirements for special precautions, protective measures, and boil water notices required at the discretion of the executive director under this paragraph. (6) Once the boil water notice, special precaution, or protective measure is no longer in effect, the public water system shall notify customers that the notice has been rescinded. A public water system shall not rescind a notice or notify customers that a notice has been rescinded until the public water system has met all the applicable requirements, as described in subparagraph (A) of this paragraph. (A) Required actions prior to rescinding a boil water notice include: (i) water distribution system pressures in excess of 20 psi are consistently being maintained throughout the distribution system in accordance with the flowchart found in §290.47(e) of this title (relating to Appendices); (ii) a minimum of 0.2 mg/L free chlorine residual or 0.5 mg/L chloramine residual (measured as total chlorine) is present and is consistently being maintained in each finished water storage tank and throughout the distribution system as described in subsection (d) of this section; (iii) finished water entering the distribution system, produced by a treatment plant that is treating surface water or groundwater under the direct influence of surface water, has a turbidity level that is consistently below 1.0 NTU and the affected areas of the distribution system have been thoroughly flushed; (iv) additional actions may be required by the executive director, in writing, and these additional actions shall be completed and documentation provided to the executive director for approval prior to the public water system rescinding the notice, and (v) water samples for microbiological analysis, marked as "special" on the laboratory sample submission form, were collected from representative locations throughout the distribution system or in the affected area(s) of the distribution system after the public water system has met all other applicable requirements of this paragraph and the water samples collected for microbiological analysis are found negative for coliform organisms. The water samples described in this subparagraph shall be analyzed at laboratories in accordance with §290.119 of this title (relating to Analytical Procedures). (B) A public water system shall notify customers that the notice has been rescinded within 24 hours or no later than the next business day, using language and format specified by the executive director once the public water system has met the requirements of this paragraph. The method of delivery of the rescind notice must be in a manner similar to the original notice. (C) The public water system shall provide a copy of the rescind notice, a copy of the associated microbiological laboratory analysis results, as required by subparagraph (A) of this paragraph, and a signed Certificate of Delivery to the executive director within ten days after the public water system has issued the rescind notice to customers in accordance with §290.122(f) of this title. (r) Minimum pressures. All public water systems shall be operated to provide a minimum pressure of 35 psi throughout the distribution system under normal operating conditions. The system shall also be operated to maintain a minimum pressure of 20 psi during emergencies such as firefighting. As soon as safe and practicable following the occurrence of a natural disaster, a public water system that is an affected utility, as defined in TWC §13.1394 or §13.1395, shall maintain a minimum of 20 psi or a pressure approved by the executive director, or 35 psi, respectively, throughout the distribution system during an extended power outage. (s) Testing equipment. Accurate testing equipment or some other means of monitoring the effectiveness of any chemical treatment or pathogen inactivation or removal processes must be used by the system. (1) Flow-measuring devices and rate-of-flow controllers that are required by §290.42(b) and (d) of this title (relating to Water Treatment) shall be calibrated at least once every 12 months. Well meters required by §290.41(c)(3)(N) of this title shall be calibrated at least once every three years. (2) Laboratory equipment used for compliance testing shall be properly calibrated. (A) pH meters shall be properly calibrated. (i) Benchtop pH meters shall be calibrated according to manufacturer specifications at least once each day. (ii) The calibration of benchtop pH meters shall be checked with at least one buffer each time a series of samples is run, and if necessary, recalibrated according to manufacturer specifications. (iii) On-line pH meters shall be calibrated according to manufacturer specifications at least once every 30 days. (iv) The calibration of on-line pH meters shall be checked at least once each week with a primary standard or by comparing the results from the on-line unit with the results from a properly calibrated benchtop unit. If necessary, the on-line unit shall be recalibrated with primary standards. (B) Turbidimeters shall be properly calibrated. (i) Benchtop turbidimeters shall be calibrated with primary standards at least once every 90 days. Each time the turbidimeter is calibrated with primary standards, the secondary standards shall be restandardized. (ii) The calibration of benchtop turbidimeters shall be checked with secondary standards each time a series of samples is tested, and if necessary, recalibrated with primary standards. (iii) On-line turbidimeters shall be calibrated with primary standards at least once every 90 days. (iv) The calibration of on-line turbidimeters shall be checked at least once each week with a primary standard, a secondary standard, or the manufacturer's proprietary calibration confirmation device or by comparing the results from the on-line unit with the results from a properly calibrated benchtop unit. If necessary, the on-line unit shall be recalibrated with primary standards. (C) Chemical disinfectant residual analyzers shall be properly calibrated. (i) The accuracy of manual disinfectant residual analyzers shall be verified at least once every 90 days using chlorine solutions of known concentrations. (ii) The accuracy of continuous disinfectant residual analyzers shall be checked at least once every seven days with a chlorine solution of known concentration or by comparing the results from the on-line analyzer with the result of approved benchtop method in accordance with §290.119 of this title. (iii) If a disinfectant residual analyzer produces a result which is not within 15% of the expected value, the cause of the discrepancy must be determined and corrected and, if necessary, the instrument must be recalibrated. (D) Analyzers used to determine the effectiveness of chloramination in §290.110(c)(5) of this title shall be properly verified in accordance with the manufacturer's recommendations every 90 days. These analyzers include monochloramine, ammonia, nitrite, and nitrate equipment used by the public water system. (E) Ultraviolet (UV) light disinfection analyzers shall be properly calibrated. (i) The accuracy of duty UV sensors shall be verified with a reference UV sensor monthly, according to the UV sensor manufacturer. (ii) The reference UV sensor shall be calibrated by the UV sensor manufacturer on a yearly basis, or sooner if needed. (iii) If used, the UV Transmittance (UVT) analyzer shall be calibrated weekly according to the UVT analyzer manufacturer specifications. (F) Systems must verify the performance of direct integrity testing equipment in a manner and schedule approved by the executive director. (G) Conductivity (or total dissolved solids) monitors and pressure instruments used for reverse osmosis and nanofiltration membrane systems shall be calibrated at least once every 12 months. (H) Any temperature monitoring devices used for reverse osmosis and nanofiltration shall be verified and calibrated in accordance with the manufacturer's specifications. (t) System ownership. All community water systems shall post a legible sign at each of its production, treatment, and storage facilities. The sign shall be located in plain view of the public and shall provide the name of the water supply and an emergency telephone number where a responsible official can be contacted. (u) Abandoned wells. Abandoned public water supply wells owned by the system must be plugged with cement according to 16 TAC Chapter 76 (relating to Water Well Drillers and Water Well Pump Installers). Wells that are not in use and are non-deteriorated as defined in those rules must be tested every five years or as required by the executive director to prove that they are in a non-deteriorated condition. The test results shall be sent to the executive director for review and approval. Deteriorated wells must be either plugged with cement or repaired to a non-deteriorated condition. (v) Electrical wiring. All water system electrical wiring must be securely installed in compliance with a local or national electrical code. (w) Security. All systems shall maintain internal procedures to notify the executive director by methods provided by the executive director immediately upon determining that one of the following events has occurred, if the event may negatively impact the production or delivery of safe and adequate drinking water: (1) an unusual or unexplained unauthorized entry at property of the public water system; (2) an act of terrorism against the public water system; (3) an unauthorized attempt to probe for or gain access to proprietary information that supports the key activities of the public water system; (4) a theft of property that supports the key activities of the public water system;(5) a natural disaster, accident, or act that results in damage to the public water system; or (6) a nonindustrial water system that experiences an unplanned condition that has caused the system to issue a special precaution under §290.47(e) of this title or issue a do-not-consume advisory, do-not-use advisory, or boil water notice under subsection (q) of this section. (A) For the purposes of this paragraph, a nonindustrial water system is defined as a public water system which does not exclusively serve industrial connections. (B) For the purposes of this paragraph unplanned condition is defined as any condition where advance notice to water system customers has not been performed. (x) Public safety standards. This subsection only applies to a municipality with a population of 1,000,000 or more, with a public utility within its corporate limits; a municipality with a population of more than 36,000 and less than 41,000 located in two counties, one of which is a county with a population of more than 1.8 million; a municipality, including any industrial district within the municipality or its extraterritorial jurisdiction (ETJ), with a population of more than 7,000 and less than 30,000 located in a county with a population of more than 155,000 and less than 180,000; or a municipality, including any industrial district within the municipality or its ETJ, with a population of more than 11,000 and less than 18,000 located in a county with a population of more than 125,000 and less than 230,000. (1) In this subsection: (A) "Regulatory authority" means, in accordance with the context in which it is found, either the commission or the governing body of a municipality. (B) "Public utility" means any person, corporation, cooperative corporation, affected county, or any combination of these persons or entities, other than a municipal corporation, water supply or sewer service corporation, or a political subdivision of the state, except an affected county, or their lessees, trustees, and receivers, owning or operating for compensation in this state equipment or facilities for the transmission, storage, distribution, sale, or provision of potable water to the public or for the resale of potable water to the public for any use or for the collection, transportation, treatment, or disposal of sewage or other operation of a sewage disposal service for the public, other than equipment or facilities owned and operated for either purpose by a municipality or other political subdivision of this state or a water supply or sewer service corporation, but does not include any person or corporation not otherwise a public utility that furnishes the services or commodity only to itself or its employees or tenants as an incident of that employee service or tenancy when that service or commodity is not resold to or used by others. (C) "Residential area" means: (i) an area designated as a residential zoning district by a governing ordinance or code or an area in which the principal land use is for private residences; (ii) a subdivision for which a plat is recorded in the real property records of the county and that contains or is bounded by public streets or parts of public streets that are abutted by residential property occupying at least 75% of the front footage along the block face; or (iii) a subdivision a majority of the lots of which are subject to deed restrictions limiting the lots to residential use. (D) "Industrial district" has the meaning assigned by Texas Local Government Code, §42.044, and includes an area that is designated by the governing body of a municipality as a zoned industrial area. (2) When the regulatory authority is a municipality, it shall by ordinance adopt standards for installing fire hydrants in residential areas in the municipality. These standards must, at a minimum, follow current AWWA standards pertaining to fire hydrants and the requirements of §290.44(e)(6) of this title. (3) When the regulatory authority is a municipality, it shall by ordinance adopt standards for maintaining sufficient water pressure for service to fire hydrants adequate to protect public safety in residential areas in the municipality. The standards specified in paragraph (4) of this subsection are the minimum acceptable standards. (4) A public utility shall deliver water to any fire hydrant connected to the public utility's water system located in a residential area so that the flow at the fire hydrant is at least 250 gallons per minute for a minimum period of two hours while maintaining a minimum pressure of 20 psi throughout the distribution system during emergencies such as firefighting. That flow is in addition to the public utility's maximum daily demand for purposes other than firefighting. (5) When the regulatory authority is a municipality, it shall adopt the standards required by this subsection within one year of the effective date of this subsection or within one year of the date this subsection first applies to the municipality, whichever occurs later. (6) A public utility shall comply with the standards established by a municipality under both paragraphs (2) and (3) of this subsection within one year of the date the standards first apply to the public utility. If a municipality has failed to comply with the deadline required by paragraph (5) of this subsection, then a public utility shall comply with the standards specified in paragraphs (2) and (4) of this subsection within two years of the effective date of this subsection or within one year of the date this subsection first applies to the public utility, whichever occurs later. (y) Fire hydrant flow standards. (1) In this subsection: (A) "Municipal utility" means a retail public utility, as defined by Texas Water Code (TWC), §13.002, that is owned by a municipality. (B) "Residential area" means an area used principally for private residences that is improved with at least 100 single-family homes and has an average density of one home per half acre. (C) "Utility" includes a "public utility" and "water supply or sewer service corporation" as defined by TWC §13.002. (2) The governing body of a municipality by ordinance may adopt standards set by the executive director requiring a utility to maintain a minimum sufficient water flow and pressure to fire hydrants in a residential area located in the municipality or the municipality's ETJ. The municipality must submit a signed copy of the ordinance to the executive director within 60 days of the adoption of an ordinance by its governing body. (3) In addition to a utility's maximum daily demand, the utility must provide, for purposes of emergency fire suppression: (A) a minimum sufficient water flow of at least 250 gallons per minute for at least two hours; and (B) a minimum sufficient water pressure of at least 20 psi. (4) If a municipality adopts standards for a minimum sufficient water flow and pressure to fire hydrants, the municipality must require a utility to maintain at least the minimum sufficient water flow and pressure described by paragraph (3) of this subsection in fire hydrants in a residential area located within the municipality or the municipality's ETJ. If the municipality adopts a fire flow standard exceeding the minimum standards set in paragraph (3) of this subsection, the standard adopted by the municipality must be based on: (A) the density of connections; (B) service demands; and (C) other relevant factors. (5) If the municipality owns a municipal utility, it may not require another utility located in the municipality or the municipality's ETJ to provide water flow and pressure in a fire hydrant greater than that provided by the municipal utility as determined by the executive director. (6) If the municipality does not own a municipal utility, it may not require a utility located in the municipality or the municipality's ETJ to provide a minimum sufficient water flow and pressure greater than the standard established by paragraph (3) of this subsection. (7) An ordinance under paragraph (2) of this subsection may not require a utility to build, retrofit, or improve infrastructure in existence at the time the ordinance is adopted. (8) A municipality with a population of less than 1.9 million that adopts standards under paragraph (2) of this subsection or that seeks to use a utility's water for emergency fire suppression shall enter into a written memorandum of understanding with the utility. (A) The memorandum of understanding must provide for: (i) the necessary testing of fire hydrants; and (ii) other relevant issues pertaining to the use of the water and maintenance of the fire hydrants to ensure compliance with this subsection. (B) The municipality must submit a signed copy of the memorandum of understanding to the executive director within 60 days of the execution of the memorandum of understanding between its governing body and the utility. (9) A municipality may notify the executive director of a utility's failure to comply with a standard adopted under paragraph (3) of this subsection. (10) On receiving the notice described by paragraph (9) of this subsection, the executive director shall require a utility in violation of a standard adopted under this subsection to comply within a reasonable time established by the executive director. (z) Nitrification Action Plan (NAP). Any water system distributing chloraminated water must create a NAP. The system must create a written NAP that: (1) contains the system-specific plan for monitoring free ammonia, monochloramine, total chlorine, nitrite, and nitrate levels; (2) contains system-specific action levels of the above monitored chemicals where action must be taken; (3) contains specific corrective actions to be taken if the action levels are exceeded; and (4) is maintained as part of the system's monitoring plan in §290.121 of this title.</content><note type="source"><p>Source Note: The provisions of this §290.46 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective October 16, 2008, 33 TexReg 8533; amended to be effective December 10, 2009, 34 TexReg 8744; amended to be effective June 10, 2010, 35 TexReg 4726; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective November 8, 2012, 37 TexReg 8849; amended to be effectiveSeptember 11, 2014, 39 TexReg 7145; amended to be effective July 30, 2015, 40 TexReg 4769; amended to be effective December 10, 2015, 40 TexReg 8793; amended to be effective March 30, 2017, 42 TexReg 1466; amended to be effective December 21, 2023, 48 TexReg 7585; amended to be effective January 9, 2025, 50 TexReg 159.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scD/s290.47"><num value="290.47">§290.47</num><heading>Appendices</heading><content>(a) Appendix A. Recognition as a Superior or Approved Public Water System.Attached Graphic(1) To attain recognition as a "Superior Public Water System", the following additional requirements must be met: (A) Physical facilities shall comply with the requirements in these sections. (B) There shall be a minimum of two licensed operators with additional operators required for larger systems. (C) The system's microbiological record for the previous 24 months period shall indicate no violations (frequency, number or maximum contaminant level) of the drinking water standards. (D) The quality of the water shall comply with all primary water quality parameters listed in the drinking water standards. (E) The chemical quality of the water shall comply with all secondary constituent levels listed in the drinking water standards. (F) The system's operation shall comply with applicable state statutes and minimum acceptable operating practices set forth in §290.46 of this title (relating to Minimum Acceptable Operating Practices for Public Drinking Water Systems). (G) The system's capacities shall meet or exceed minimum water system capacity requirements set forth in §290.45 of this title (relating to Minimum Water System Capacity Requirements). (H) The system shall have at least two wells, two raw water pumps or a combination of these with enough capacity to provide average daily consumption with the largest well or pump out of service. This requirement shall also apply to treatment plant pumps necessary for operation in accordance with §290.42 of this title (relating to Water Treatment). (I) The water system shall be well maintained and the facilities shall present a pleasing appearance to the public. (2) To attain recognition as an "Approved Public Water System," all additional requirements listed under subsection (a)(1) of this section with exception of secondary constituents, subsection (a)(1)(E) of this section must be met. Public water systems which provide water quality that exceeds the secondary chemical standards may be excluded from this recognition program at the discretion of the executive director. Signs. Systems which have met the requirements for recognition as a superior or approved system may erect signs denoting this honor. Inspections. To receive or maintain recognition as a superior or approved water system, the system must be inspected and evaluated by commission personnel as to physical facilities, appearance and operation. Systems which fail to meet the above requirements in this section will be denied recognition or will have their recognition revoked. The signs shall be immediately removed on notice from the executive director.(b) Appendix B. Sample Retail Service Agreement.Attached Graphic(c) Appendix C. Critical Water System Components Attached Graphic(d) Appendix D. Operator Notice.Attached Graphic(e) Appendix E. Special Precautions.Attached Graphic(f) Appendix F. Assessment of Hazards and Selection of Assemblies.Attached Graphic(g) Appendix G. Emergency Preparedness Plan Templates. (1) G1: Emergency Preparedness Plan Template for Affected Utilities defined under TWC §13.1394Attached Graphic(2) G2: Emergency Preparedness Plan Template for Affected Utilities defined under TWC §13.1395Attached Graphic(h) Appendix H. Sample Language for Notification Upon Changing from Free Chlorine to Chloramines.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §290.47 adopted to be effective November 3, 1995, 20 TexReg 8620; amended to be effective March 3, 1997, 22 TexReg 1809; amended to be effective February 4, 1999, 24 TexReg 731; amended to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective October 16, 2008, 33 TexReg 8533; amended to be effective December 10, 2009, 34 TexReg 8744; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effectiveJuly30,2015, 40 TexReg 4769; amended to be effective December 10, 2015, 40 TexReg 8793; amended to be effective March 30, 2017, 42 TexReg 1466; amended to be effective December 21, 2023, 48 TexReg 7585.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c290/scE"><num value="E">SUBCHAPTER E</num><heading>FEES FOR PUBLIC WATER SYSTEMS</heading><section identifier="/us/state/tx/tac/t30/p1/c290/scE/s290.51"><num value="290.51">§290.51</num><heading>Fees for Services to Drinking Water System</heading><content>(a) Purpose and scope.(1) The purpose of this section is to establish fees for services provided by the commission to public water systems. (2) The commission will provide services to public water systems, as follows: (A) scheduling of analysis of drinking water for chemical content; (B) collection of samples of drinking water for chemical analyses; (C) review system data for evaluation of sampling waivers; (D) inspect public water systems; (E) review plans for new systems and major improvements to existing systems; and (F) provide technical assistance as needed. (3) The fees which the commission will charge for services provided to community and nontransient noncommunity water systems under this subsection will be according to the following schedule. (A) For a system with fewer than 25 connections, the fee will be an amount up to a maximum of $200. (B) For systems with 25 - 160 connections, the fee will be an amount up to a maximum of $300. (C) For a system with greater than or equal to 161 connections, the fee will be an amount up to a maximum of $4.00 per connection. (i) The number of connections will be determined from data collected from the latest agency inspection report. (ii) All nontransient noncommunity systems, state, federal, and other community water system installations determined by the commission to serve large populations through a few connections will have the number of connections for fee purposes determined by dividing the population served by a value of ten. (iii) Examples of such installations include, but are not limited to, universities, children's homes, correctional facilities, and military facilities which generally do not bill customers for water service. (4) New public water systems will not be assessed a fee for services until water is supplied to the first connection. (5) The commission will charge a fee of $100 for services provided to noncommunity water systems which are not addressed in paragraph (3) of this subsection. (6) All fees are due by January 1 of each year, shall be paid by check, money order, electronic funds transfer, or through the agency's payment portal, and shall be made payable to the Texas Commission on Environmental Quality. Penalties and interest for the late payment of fees shall be assessed in accordance with Chapter 12 of this title (relating to Payment of Fees). (b) Failure to make payments as required under this section will subject the violator to the penalty provisions of the Texas Health and Safety Code, Chapter 341, Subchapter C. (c) The commission may adjust the fee rates in subsection (a) of this section through an appropriate notification process, such as, but not limited to, Texas Register publication, based on the agency's cost of administering the water programs.</content><note type="source"><p>Source Note: The provisions of this §290.51 adopted to be effective December 21, 1993, 18 TexReg 9105; amended to be effective February 14, 1997, 22 TexReg 1323; amended to be effective December 30, 2001, 26 TexReg 10616; amended to be effective July 30, 2009, 34 TexReg 4893; amended to be effective June 2, 2016, 41 TexReg 3906.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c290/scF"><num value="F">SUBCHAPTER F</num><heading>DRINKING WATER STANDARDS GOVERNING DRINKING WATER QUALITY AND REPORTING REQUIREMENTS FOR PUBLIC WATER SYSTEMS</heading><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.101"><num value="290.101">§290.101</num><heading>Purpose</heading><content>The purpose of these standards is to assure the safety of public water supplies with respect to microbiological, chemical and radiological quality and to further efficient processing through control tests, laboratory checks, operating records and reports of public water supply systems. These standards are written to comply with the requirements of the Federal "Safe Drinking Water Act," 42 USC §300f et seq., and the "Primary Drinking Water Regulations" which have been promulgated by the United States Environmental Protection Agency.</content><note type="source"><p>Source Note: The provisions of this §290.101 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective January 9, 2008, 33 TexReg 198.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.102"><num value="290.102">§290.102</num><heading>General Applicability</heading><content>(a) General applicability. This subchapter shall apply to all public water systems as described in each section, unless the system:(1) consists only of distribution and storage facilities (and does not have any production and treatment facilities);(2) obtains all of its water from, but is not owned or operated by, a public water system to which such standards apply;(3) does not sell water to any person;(4) is not a carrier which conveys passengers in interstate commerce; and(5) is subject to plumbing restrictions and inspections by the public water system which provides the water.(b) Variances and exemptions. Variances and exemptions may be granted at the discretion of the executive director according to the Safe Drinking Water Act (SDWA), 42 United States Code (USC), §300g-4 and §300g-5, and according to National Primary Drinking Water Regulations Implementation, Subpart K, 40 Code of Federal Regulations §§142.301 - 142.313. The executive director may not approve variances or exemptions from:(1) the maximum contaminant level (MCL) for Escherichia coli, nitrate, nitrite, or total nitrate and nitrite;(2) the maximum residual disinfection level for chlorine dioxide; or(3) the treatment technique requirements for filtration and disinfection.(4) Variances are prohibited for rules addressing microbial contaminants, including rules in §290.109 - 209.111 and §290.116 of this title (relating to Microbial Contaminants; Disinfectant Residuals; Surface Water Treatment; and Groundwater Corrective Actions and Treatment Techniques).(c) Extensions. An extension to the compliance deadline for an MCL or treatment technique that becomes effective on or after January 1, 2002, may be granted at the discretion of the executive director in accordance with the SDWA, 42 USC, §300g-1(b)(10).(1) The executive director may extend the effective date of an MCL or treatment technique for up to two years if all of the following conditions apply:(A) there are no acute violations associated with the new MCL or treatment technique for which the extension is being granted;(B) the executive director determines that granting the extension will not result in an unreasonable risk to public health;(C) the extension is granted only to public water systems that were in operation on the date that the MCL or treatment technique was promulgated by the United States Environmental Protection Agency (EPA);(D) the executive director determines that capital improvements are needed to comply with the new MCL or treatment technique; (E) the executive director approves a schedule identifying the capital improvements necessary to bring the system into compliance with the new MCL or treatment technique; and(F) the EPA has not already incorporated a two-year extension into the effective date for the new MCL or treatment technique requirement.(2) An application for an extension must be submitted to the executive director in writing by the owner or responsible party of the water system. The request must include a statement identifying the new MCL or treatment technique which is not being met and a general long range plan for meeting the new requirement.(3) The executive director may issue an extension covering a group or class of systems with a common MCL or treatment technique which is not met without individual applications.(d) Motion to overturn. Any person may file a motion to overturn the executive director's decision to grant or deny a variance, exemption, or extension under this section according to the procedures set out in §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).(e) Monitoring schedule. All monitoring required by this chapter shall be conducted in a manner and on a schedule approved by the executive director in concurrence with the requirements of the administrator of the EPA.(f) Modified monitoring. When a public water system supplies water to one or more other public water systems, the executive director may modify the monitoring requirements imposed by this chapter to the extent that the interconnection of the systems justifies treating them as a single system for monitoring purposes. Any modified monitoring shall be conducted pursuant to a schedule specified by the executive director in concurrence with the requirements of the administrator of the EPA.(g) The owner or operator of a public water system shall ensure that the executive director is provided with a copy of the results of any test, measurement, or analysis required by this subchapter. The copies shall be submitted within the first ten days following the month in which the result is received by the public water system, or the first ten days following the end of the required monitoring period as provided by this subchapter, whichever occurs first.</content><note type="source"><p>Source Note: The provisions of this §290.102 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.103"><num value="290.103">§290.103</num><heading>Definitions</heading><content>The following definitions shall apply in the interpretation and enforcement of this subchapter. If a word or term used in this subchapter is not contained in the following list, its definition shall be as shown in §290.38 of this title (relating to Definitions) or in 40 Code of Federal Regulations (CFR) §141.2. Other technical terms used shall have the meanings or definitions listed in the latest edition of "Glossary, Water and Wastewater Control Engineering," prepared by a joint editorial board representing the American Public Health Association, American Society of Civil Engineers, American Water Works Association, and the Water Pollution Control Federation.(1) Assessment source monitoring--Raw groundwater source monitoring required by the executive director based on groundwater source susceptibility to fecal contaminants.(2) Combined distribution system (CDS)--The interconnected distribution system consisting of the distribution systems of wholesale systems and of the consecutive systems that receive finished water.(A) The executive director may determine that the CDS does not include certain systems based on factors such as providing or receiving a relatively small amount of water or only on an emergency basis.(B) A public water system may be determined to be in a different CDS for the purposes of compliance with regulations based on the Stage 2 Disinfection Byproducts Rule (DBP2) and the Long Term Stage 2 Enhanced Surface Water Treatment Rule (LT2).(i) For the purposes of raw water monitoring under LT2, the CDS shall be based on the retail and wholesale population served by each surface water treatment plant or plant treating groundwater under the direct influence of surface water.(ii) For the purposes of DBP2, the CDS shall be determined based on the retail population served within each individual system's distribution system.(3) Compliance cycle--The nine-year (calendar year) cycle during which public water systems must monitor. Each compliance cycle consists of three, three-year compliance periods.(4) Compliance period--A three-year (calendar year) period within a compliance cycle. Each compliance cycle has three, three-year compliance periods. Within the first compliance cycle, the first compliance period is called the initial compliance period.(5) Comprehensive performance evaluation (CPE)--A thorough review and analysis of a treatment plant's performance-based capabilities and the associated administrative, operation and maintenance practices. It is conducted to identify factors that may be adversely impacting a plant's capability to achieve compliance and to emphasize approaches that can be implemented without significant capital improvements. The comprehensive performance evaluation consists of the following components: assessment of plant performance; evaluation of major unit processes; identification and prioritization of performance limiting factors; assessment of the applicability of comprehensive technical assistance; and preparation of a CPE report.(6) Consecutive system--A public water system that receives some or all of its raw water or finished water from one or more other public water systems.(7) Disinfection profile--A summary of daily Cryptosporidium, Giardia lamblia, and viral inactivation obtained through disinfection at the treatment plant. (8) Disinfection by-products (DBP)--Chemical compounds formed by the reaction of a disinfectant with the natural organic matter present in water.(9) Domestic or other non-distribution system plumbing problem--A coliform contamination problem in a public water system with more than one service connection that is limited to the specific service connection from which the coliform-positive sample was taken.(10) DPD--Abbreviation for N,N-diethyl-p-phenylenediamine, a reagent used in the determination of several residuals. DPD methods are available for both volumetric (titration) and colorimetric determinations, and are commonly used in the field as part of a colorimetric test kit.(11) Dual sample set--A set of two samples collected at the same time and same location, with one sample analyzed for total trihalomethanes (TTHM) and the other sample analyzed for haloacetic acids-group of five (HAA5). Dual sample sets are collected for the purposes of conducting an initial distribution system evaluation and determining compliance with the TTHM and HAA5 maximum contaminant levels.(12) Enhanced coagulation--The removal of disinfection by-product precursors to a specified level by conventional coagulation and sedimentation.(13) Enhanced softening--The removal of disinfection by-product precursors to a specified level by softening.(14) Entry point--Any point where a source of treated water first enters the distribution system. Entry points to the distribution system may include points where chlorinated well water, treated surface water, rechlorinated water from storage, or water purchased from another supplier enters the distribution system.(15) Entry point sampling site--A sampling site representing the quality of the water entering the distribution system at each designated entry point.(16) Fecal indicators--Microbiological organisms used to indicate the presence of fecal contamination. Examples include; fecal coliform, Escherichia coli (E. coli), enterococci, and coliphage.(17) Filter assessment--An in-depth evaluation of an individual filter, including the analysis of historical filtered water turbidity from the filter, development of a filter profile, evaluation of media condition, identification and prioritization of factors limiting filter performance, appraisal of the applicability of corrections, and preparation of a filter self-assessment report.(18) Filter profile--A graphical representation of individual filter performance, based on continuous turbidity measurements or total particle counts versus time for an entire filter run. The filter profile must include all the data collected from the time that the filter placed into service until the time that the backwash cycle is complete and the filter is restarted. The filter profile must also include data collected as another filter is being backwashed.(19) Finished water--Water that is introduced into the distribution system of a public water system and intended for distribution and consumption without further treatment, except as necessary to maintain water quality within the distribution system (e.g., booster disinfection, addition of corrosion control chemicals).(20) Groundwater corrective action--Action required when a raw groundwater source sample is found to be positive for Escherichia coli (E. coli) or other fecal indicators as described under §290.116(b) of this title (relating to Groundwater Corrective Actions and Treatment Techniques).(21) Groundwater corrective action plan--A plan approved by the executive director documenting the steps to be taken to address fecal contamination of a groundwater source as described under §290.116(b) of this title (relating to Groundwater Corrective Actions and Treatment Techniques). The groundwater corrective action plan must be approved within 30 days of being notified of the fecal contamination.(22) Groundwater system--For the purposes of compliance with §290.109 of this title (relating to Microbial Contaminants) and with §290.116 of this title (relating to Groundwater Corrective Actions and Treatment Techniques), a public water system that provides, uses, or distributes any groundwater except if the groundwater is combined with surface water (or with groundwater under the direct influence of surface water) prior to treatment.(23) Haloacetic acids (five) (HAA5)--The sum of the monochloroacetic acid, dichloroacetic acid, trichloroacetic acid, monobromoacetic acid, and dibromoacetic acid concentrations in milligrams per liter, rounded to two significant figures after adding the sum.(24) Halogen--One of the chemical elements chlorine, bromine, or iodine.(25) Hydrogeologic sensitivity assessment--A determination of whether groundwater systems obtain water from hydrogeologically sensitive sources.(26) Level 1 assessment--An evaluation to identify the possible presence of sanitary defects, defects in distribution system coliform monitoring practices, and (when possible) the likely reason that the public water system triggered the assessment. Minimum elements include review and identification of atypical events that could affect distributed water quality or indicate that distributed water quality was impaired; changes in distribution system maintenance and operation that could affect distributed water quality (including, but not limited to water storage); source and treatment considerations that bear on distributed water quality, where appropriate; existing water quality monitoring data; and inadequacies in sample sites, sampling protocol, and sample processing. The public water system must conduct the assessment consistent with any executive director directives that tailor specific assessment elements with respect to the size and type of the public water system and the size, type, and characteristics of the distribution system.(27) Level 2 assessment--An evaluation to identify the possible presence of sanitary defects, defects in distribution system coliform monitoring practices, and (when possible) the likely reason that the public water system triggered the assessment. A Level 2 assessment provides a more detailed examination of the public water system (including, but not limited to the public water system's monitoring and operational practices) than does a Level 1 assessment through the use of a more comprehensive investigation and review of available information, additional internal and external resources, and other relevant practices. Minimum elements include review and identification of atypical events that could affect distributed water quality or indicate that distributed water quality was impaired; changes in distribution system maintenance and operation that could affect distributed water quality (including, but not limited to water storage); source and treatment considerations that bear on distributed water quality, where appropriate; existing water quality monitoring data; and inadequacies in sample sites, sampling protocol, and sample processing. The public water system must conduct the assessment consistent with any executive director directives that tailor specific assessment elements with respect to the size and type of the public water system and the size, type, and characteristics of the distribution system. The public water system must comply with any expedited actions or additional actions required by the executive director in the case of an Escherichia coli (E.coli) maximum contaminant level violation.(28) Locational running annual average (LRAA)--The average of analytical results for samples taken at a specific monitoring location during the previous four calendar quarters.(29) Maximum contaminant level (MCL)--The maximum concentration of a regulated contaminant that is allowed in drinking water before the public water system is cited for a violation. MCLs for regulated contaminants are defined in the applicable sections of this subchapter.(30) Maximum residual disinfectant level (MRDL)--The disinfectant concentration that may not be exceeded in the distribution system. There is convincing evidence that addition of a disinfectant is necessary for control of waterborne microbial contaminants.(31) Minimum acceptable disinfectant residual--The lowest disinfectant concentration allowed in the distribution system for microbial control.(32) Operational evaluation level (OEL)--Calculated level of total trihalomethanes (TTHM) or haloacetic acid group of five (HAA5), an exceedance of which requires a system to perform an evaluation of factors in the distribution system contributing to disinfection by-product formation and submit an operation evaluation report as described in §290.115(e)(2) of this title (relating to Stage 2 Disinfection Byproducts (TTHM and HAA5)). The OEL at any monitoring location is the sum of the two previous quarters' results plus twice the current quarter's result, divided by 4 to determine an average.(33) Raw water--Water prior to any treatment including disinfection that is intended to be used, after treatment, as drinking water.(A) Raw groundwater is water from a groundwater source.(B) Raw surface water is any water from a surface water source or from a groundwater under the direct influence of surface water source.(34) Raw groundwater source monitoring--Fecal indicator sampling at untreated groundwater sources including triggered source water and assessment source monitoring.(35) Sanitary defect--A defect that could provide a pathway of entry for microbial contamination into the distribution system or that is indicative of a failure or imminent failure in a barrier that is already in place.(36) Seasonal public water system--A noncommunity public water system that is not operated as a public water system on a year-round basis and starts up and shuts down at the beginning and end of each operating season.(37) Significant deficiency--Significant deficiencies cause, or have the potential to cause, the introduction of contamination into water delivered to customers. This could include defects in design, operation, or maintenance of the source, treatment, storage, or distribution systems.(38) Specific ultraviolet absorption at 254 nanometers (nm) (SUVA)--An indirect indicator of whether the organic carbon in water is humic or non-humic. It is calculated by dividing a sample's ultraviolet absorption at a wavelength of 254 nm (UV254) (in inverse meters) by its concentration of dissolved organic carbon (DOC) (in milligrams per liter).(39) Total organic carbon (TOC)--The concentration of total organic carbon, in milligrams per liter, measured using heat, oxygen, ultraviolet irradiation, chemical oxidants, or combinations of these oxidants that convert organic carbon to carbon dioxide, rounded to two significant figures. TOC is a surrogate measure for precursors to formation of disinfection by-products.(40) Total trihalomethanes (TTHM)--The sum of the chloroform, dibromochloromethane, bromodichloromethane, and bromoform concentrations in milligrams per liter, rounded to two significant figures after summing.(41) Triggered source water monitoring--Raw groundwater source monitoring required for systems not providing at least 4-log treatment of viruses when a routine distribution coliform sample is positive.(42) Trihalomethane (THM)--One of the family of organic compounds named as derivatives of methane, wherein three of the four hydrogen atoms in methane are each substituted by a halogen atom in the molecular structure.(43) Wholesale system--A public water system that delivers water to another public water system.(44) 4-log treatment--At least 99.99% (4-log) treatment of viruses using inactivation, removal, or an executive director-approved combination of 4-log virus inactivation and removal. The 4-log treatment must be able to be properly validated and achieved before the first connection of the specified water source.</content><note type="source"><p>Source Note: The provisions of this §290.103 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective November 8, 2012, 37 TexReg 8849; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.104"><num value="290.104">§290.104</num><heading>Summary of Maximum Contaminant Levels, Maximum Residual Disinfectant Levels, Treatment Techniques, and Action Levels</heading><content>(a) Summary table purpose. The maximum contaminant levels (MCLs), maximum residual disinfectant levels (MRDLs), treatment techniques, and action levels are presented in this section as a reference source. Only the regulatory concentrations are shown in these tables. Compliance requirements are given in the specific section for each chemical.(b) MCLs for inorganic compounds. The MCLs for inorganic contaminants listed in this subsection apply to public water systems as provided in §290.106 of this title (relating to Inorganic Contaminants).Attached Graphic(c) MCLs for organic compounds. The following MCLs for synthetic organic contaminants and volatile organic contaminants apply to public water systems as provided in §290.107 of this title (relating to Organic Contaminants).(1) The following are the MCLs for synthetic organic contaminants.Attached Graphic(2) The following are the MCLs for volatile organic contaminants.Attached Graphic(d) MCLs for radionuclide contaminants. MCLs for radionuclide contaminants apply to public water systems as provided in §290.108 of this title (relating to Radionuclides Other than Radon).(e) Microbial contaminants. The MCL for microbial or bacteriological contaminants applies to public water systems as provided in §290.109 of this title (relating to Microbial Contaminants). The MCL for microbiological contaminants is based on the presence or absence of Escherichia coli (E. coli). (f) Minimum residual disinfectant concentrations and MRDLs. Minimum residual disinfectant concentrations and MRDLs apply to public water systems as provided in §290.110 of this title (relating to Disinfectant Residuals).(1) The minimum residual disinfectant concentration in the water entering the distribution system is 0.2 milligrams per liter (mg/L) free chlorine or 0.5 mg/L chloramine.(2) The minimum residual disinfectant concentration in the water within the distribution system is 0.2 mg/L free chlorine or 0.5 mg/L chloramine.(3) The MRDL of chlorine dioxide in the water entering the distribution system is 0.8 mg/L.(4) The MRDL of free chlorine or chloramine in the water within the distribution system is 4.0 mg/L based on a running annual average.(g) Surface water treatment. Systems treating surface water or groundwater under the direct influence of surface water must meet the turbidity treatment technique requirements as provided in §290.111 of this title (relating to Surface Water Treatment).(1) The turbidity level of the combined filter effluent must never exceed 1.0 nephelometric turbidity unit (NTU) and the turbidity level of the combined filter effluent must be 0.3 NTU or less in at least 95% of the samples tested each month.(2) Systems are subject to the raw water monitoring, pathogen removal and inactivation and individual filter turbidity provisions of §290.111 of this title.(h) Disinfection by-product precursors. The treatment technique requirements for disinfection by-product precursors apply to water systems as provided in §290.112 of this title (relating to Total Organic Carbon (TOC)).(i) Disinfection by-products (total trihalomethanes (TTHM) and haloacetic acids (HAA5)). The MCLs for TTHM and HAA5 apply to water systems as provided in §290.113 of this title (relating to Stage 1 Disinfection By-products (TTHM and HAA5)) and in §290.115 of this title (relating to Stage 2 Disinfection By-products (TTHM and HAA5)). The MCLs for TTHM and HAA5 are:(1) 0.080 mg/L for TTHM; and(2) 0.060 mg/L for HAA5. (j) Disinfection by-products other than TTHM and HAA5. The MCLs for chlorite and bromate apply to water systems as provided in §290.114 of this title (relating to Other Disinfection By-products (Chlorite and Bromate)). The MCLs for chlorite and bromate are as follows:(1) 1.0 mg/L for chlorite; and(2) 0.010 mg/L for bromate.(k) Lead and copper action levels. The action levels for lead and copper apply to water systems as provided in §290.117 of this title (relating to Regulation of Lead and Copper). Action levels for lead and copper are as follows:(1) 0.015 mg/L for lead; and(2) 1.3 mg/L for copper.(l) Recycle streams. The treatment technique requirements for recycle streams are specified in §290.42(c)(6) and (d)(3) of this title (relating to Water Treatment).</content><note type="source"><p>Source Note: The provisions of this §290.104 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective December 23, 2004, 29 TexReg 11729; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.105"><num value="290.105">§290.105</num><heading>Summary of Secondary Standards</heading><content>(a) Summary table purpose. The secondary constituent levels are presented in this section as a reference source. Only the regulatory concentration is shown in these tables. Compliance requirements are given in §290.118 of this title (relating to Secondary Standards). (b) Secondary standards. The secondary standards apply to all public water systems as provided in §290.118 of this title (relating to Secondary Constituent Levels). The maximum levels for secondary constituents are listed in the following table: Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §290.105 adopted to be effective September 13, 2000, 25 TexReg 8880.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.106"><num value="290.106">§290.106</num><heading>Inorganic Contaminants</heading><content>(a) Applicability. All public water systems are subject to the requirements of this section.(1) Community and nontransient, noncommunity systems shall comply with the requirements of this section regarding monitoring, reporting, and maximum contaminant levels (MCLs) for all inorganic contaminants (IOCs) listed in this section.(2) Transient, noncommunity systems shall comply with the requirements of this section regarding monitoring, reporting, and MCL for nitrate and nitrite.(3) For purposes of this section, systems using groundwater under the direct influence of surface water shall meet the inorganic sampling requirements given for surface water systems.(b) MCLs for IOCs. The MCLs for IOCs listed in the following table apply to community and nontransient, noncommunity water systems. The MCLs for nitrate, nitrite, and total nitrate and nitrite also apply to transient, noncommunity water systems.Attached Graphic(c) Monitoring requirements for IOCs. Public water systems shall monitor for IOCs at the locations specified by the executive director. All monitoring conducted under the requirements of this section must be conducted at sites designated in the public water system's monitoring plan. Each public water system shall monitor at the time designated during each compliance period.(1) Routine monitoring locations for IOCs except asbestos. Antimony, arsenic, barium, beryllium, cadmium, chromium, cyanide, fluoride, mercury, nitrate, nitrite, selenium, and thallium shall be monitored at each entry point to the distribution system.(A) If a system draws water from more than one source and the sources are combined before distribution, the system must sample at an entry point that is representative of all sources and during periods of normal operating conditions.(B) Systems shall take all subsequent samples at the same entry point to the distribution system unless the executive director determines that conditions make another entry point more representative of the source or treatment plant being monitored.(C) The executive director may approve the use of composite samples.(i) Compositing must be done in the laboratory or in the field by persons designated by the executive director.(ii) Compositing shall be allowed only at groundwater entry points to the distribution system.(iii) Compositing shall be allowed only within a single system. Samples from different systems shall not be included in a composite sample.(iv) No more than five individual samples shall be included in a composite sample.(v) The maximum number of individual samples allowed in a composite sample shall not exceed the number obtained by dividing the MCL for the contaminant by the detection limit of the analytical method and rounding the quotient to the next lowest integer. Detection limits for each analytical method are as listed in 40 Code of Federal Regulations (CFR) §141.23(a)(4)(i).(vi) If the concentration in the composite sample is greater than or equal to the proportional contribution of the MCL (e.g., 20% of MCL when five points are composited) for any inorganic chemical, then a follow-up sample must be collected from each sampling point included in the composite sample.(I) Follow-up samples must be collected within 14 days of receipt of the composite sample results.(II) If duplicates of the original sample taken from each entry point to the distribution system used in the composite are available, the system may use these instead of resampling. The duplicates must be analyzed within 14 days of the composite.(III) The follow-up or duplicate samples must be analyzed for the contaminant(s) which were excessive in the composite sample.(D) Initial monitoring for a new water source must be conducted at a site representative of the water quality of the new source of water. For systems with one well and one entry point, initial monitoring may be conducted at the entry point to the distribution system.(2) Monitoring locations for asbestos. Asbestos shall be monitored at locations where asbestos contamination is most likely to occur.(A) A system vulnerable to asbestos contamination due solely to source water shall sample at the entry point to the distribution system.(B) A system vulnerable to asbestos contamination due solely to corrosion of asbestos-cement pipe shall sample at a tap served by asbestos-cement pipe, under conditions where asbestos contamination is most likely to occur.(C) A system vulnerable to asbestos contamination due both to its source water supply and corrosion of asbestos-cement pipe shall sample at a tap served by asbestos-cement pipe, under conditions where asbestos contamination is most likely to occur.(D) The executive director may require additional sampling locations based on the size, length, age, and location of asbestos-cement pipe in the distribution system. The system must provide information regarding the size, length, age, and location of asbestos-cement pipe in the distribution system to the executive director upon request.(3) Initial monitoring frequency for IOCs except asbestos. Prior to using water as a drinking water source, public water systems shall monitor at the frequency determined by the executive director to ensure that the water distributed to customers will comply with the MCLs for antimony, arsenic, barium, beryllium, cadmium, chromium, cyanide, fluoride, nitrate, nitrite, nitrate and nitrite (total), mercury, selenium, and thallium.(4) Monitoring frequency for IOCs except asbestos, nitrate, and nitrite. Community and nontransient, noncommunity public water systems shall monitor for antimony, arsenic, barium, beryllium, cadmium, chromium, cyanide, fluoride, mercury, selenium, and thallium at the following frequency.(A) Routine monitoring frequency. A public water system shall routinely monitor for antimony, arsenic, barium, beryllium, cadmium, chromium, cyanide, fluoride, mercury, selenium, and thallium.(i) Each groundwater entry point shall be sampled once every three years.(ii) Each surface water entry point shall be sampled annually.(iii) Each of the sampling frequencies listed in this paragraph constitutes one round of sampling for groundwater and surface water entry points, respectively.(B) Reduced monitoring. The executive director may reduce the monitoring frequency for a system that has completed a minimum of three rounds of sampling by granting a waiver to the routine monitoring frequency for antimony, arsenic, barium, beryllium, cadmium, chromium, cyanide, fluoride, mercury, selenium, and thallium.(i) Systems that use a new water source are not eligible for a waiver until three rounds of sampling from the new source have been completed.(ii) To be considered for a waiver, systems shall demonstrate that all previous analytical results at that sample site were less than the MCL.(iii) In determining the appropriate reduced monitoring frequency, the executive director shall consider:(I) the reported contaminant concentrations from all previous samples;(II) the degree of variation in reported concentrations; and(III) other factors that may affect contaminant concentrations such as changes in groundwater pumping rates, changes in the system's configuration, changes in the system's operating procedures, or changes in the flow or characteristics of a reservoir or stream used as the water source.(iv) If the executive director grants a waiver, it shall be made in writing and shall set forth the basis for the determination. The determination may be initiated by the executive director. The executive director shall review and, where appropriate, revise the waiver of monitoring frequency when other data relevant to the system becomes available.(v) The term during which the waiver is effective shall not exceed one compliance cycle (i.e., nine years).(vi) A system must take a minimum of one sample during each compliance cycle while the waiver is effective.(C) Increased monitoring. The executive director may increase the monitoring frequency for antimony, arsenic, barium, beryllium, cadmium, chromium, cyanide, fluoride, mercury, selenium, or thallium.(i) If the results from a sample site exceed any of the MCLs in subsection (b) of this section, the system shall immediately begin quarterly sampling at that sample site starting in the next quarter after the exceedance occurs.(ii) After the initiation of quarterly monitoring, the executive director may return a system to the routine monitoring frequency if monitoring shows that the sampling site is reliably and consistently below the MCL.(I) The executive director shall not decrease the quarterly sampling requirement until a groundwater system has taken a minimum of two quarterly samples.(II) The executive director shall not decrease the quarterly sampling requirement until a surface water system has taken a minimum of four quarterly samples.(5) Asbestos monitoring frequency. Community and nontransient, noncommunity water systems shall monitor for asbestos at the following frequency.(A) A public water system shall routinely monitor for asbestos once during the first three years of each compliance cycle.(B) The executive director may waive the routine monitoring frequency requirements for asbestos.(i) When determining if a waiver should be granted, the executive director shall consider:(I) the potential for asbestos contamination of the water source;(II) the use of asbestos-cement pipe for finished water distribution; and(III) the corrosivity of the water.(ii) If the executive director grants a waiver, it shall be made in writing and shall set forth the basis for the determination. The determination may be initiated by the executive director. The executive director shall review and, where appropriate, revise the waiver of monitoring frequency when other data relevant to the system becomes available.(iii) The term during which the waiver is effective shall not exceed one compliance cycle (i.e., nine years).(C) The executive director may increase the monitoring frequency for asbestos.(i) A system that exceeds the MCL for asbestos shall sample quarterly beginning in the next quarter after the violation occurs.(ii) After the initiation of quarterly sampling, the executive director may return a system to the routine monitoring frequency if monitoring shows that the system is reliably and consistently below the MCL.(I) The executive director shall not decrease the quarterly sampling requirement until a groundwater system has taken a minimum of two quarterly samples.(II) The executive director shall not decrease the quarterly sampling requirement until a surface (or combined surface water and groundwater) water system has taken a minimum of four quarterly samples.(6) Nitrate monitoring frequency. All public water systems shall monitor for nitrate at the following frequency.(A) Routine nitrate monitoring frequency. All public water systems shall routinely monitor for nitrate.(i) All public water systems shall annually sample at each groundwater entry point to the distribution system.(ii) A community or nontransient, noncommunity water system shall sample quarterly at each surface water entry point to the distribution system.(iii) A transient, noncommunity water system shall sample annually at each surface water entry point to the distribution system.(B) Reduced nitrate monitoring frequency. The executive director may reduce the monitoring frequency for community or nontransient, noncommunity water systems using surface water sources by granting a waiver to the routine monitoring frequency.(i) To be considered for a waiver, a system shall demonstrate that the nitrate concentration in each sample collected during the previous four consecutive quarters was less than 50% of the nitrate MCL.(ii) If the executive director grants a waiver, it shall be made in writing and shall set forth the basis for the determination. The determination may be initiated by the executive director. The executive director shall review and, where appropriate, revise the waiver of monitoring frequency when other data relevant to the system becomes available.(iii) A system that receives a waiver to the routine nitrate monitoring frequency must sample annually for nitrate. The annual sample must be collected in the quarter that previously resulted in the highest nitrate concentration.(C) Increased nitrate monitoring frequency. The executive director may increase the nitrate monitoring frequency for community or nontransient, noncommunity water systems using groundwater sources.(i) A system that is sampling annually shall begin quarterly nitrate sampling if the nitrate concentration in any sample is equal to or greater than 50% of the nitrate MCL. Quarterly sampling must begin the first quarter after the elevated nitrate level was detected.(ii) After the initiation of quarterly sampling, the executive director may return a system to the routine annual nitrate monitoring frequency if quarterly sampling shows that the system is reliably and consistently below the nitrate MCL for a minimum of four consecutive quarters.(7) Nitrite monitoring frequency. All public water systems shall monitor for nitrite at the following frequency.(A) All public water systems shall routinely take one nitrite sample during each nine-year compliance cycle. All public water systems shall monitor at the time designated by the executive director during each compliance period during each nine-year compliance cycle. New entry points will be scheduled for nitrite sample collection during the first year of operation, and then every nine years thereafter unless increased nitrite monitoring is required in accordance with this paragraph.(B) The executive director may reduce the monitoring frequency for nitrite by granting a waiver to the routine monitoring frequency.(i) To be considered for a waiver, a system shall demonstrate that the nitrite concentration in the initial sample was less than 50% of the nitrite MCL.(ii) If the executive director grants a waiver, it shall be made in writing and shall set forth the basis for the determination. The determination may be initiated by the executive director. The executive director shall review and, where appropriate, revise the waiver of monitoring frequency when other data relevant to the system becomes available.(iii) A system that receives a waiver to the routine nitrite monitoring frequency must sample at a frequency specified by the executive director.(C) The executive director may increase the monitoring frequency for nitrite.(i) A system shall sample quarterly for at least one year following any sample in which the nitrite concentration is greater than or equal to 50% of the MCL.(ii) The executive director may allow a system to return to the routine monitoring frequency after determining the system is reliably and consistently less than the MCL.(8) Confirmation sampling for all IOCs. The executive director may require a public water system to confirm the results of any individual sample.(A) If a sample result exceeds the MCL, a public water system may be required to collect one additional sample to confirm the results of the initial test. If an additional sample is required:(i) Confirmation samples must be collected at the same entry point to the distribution system as the sample that exceeded the MCL;(ii) Confirmation samples for IOCs except nitrate and nitrite shall be collected as soon as possible after the system receives the analytical results of the first sample; and(iii) Confirmation samples for nitrate and nitrite shall be collected within 24 hours of the system's receipt of notification of the analytical results of the first sample. Systems unable to comply with the 24-hour sampling requirement must immediately notify the consumers served by the public water system in accordance with subsection (f) of this section. Systems exercising this option must take and analyze a confirmation sample within two weeks of notification of the analytical results of the first sample.(B) The executive director may require a confirmation sample for any sample with questionable results.(9) More frequent monitoring. The executive director may require more frequent monitoring than specified in paragraphs (4) - (7) of this subsection.(d) Analytical requirements for IOCs. Analytical procedures shall be performed in accordance with §290.119 of this title (relating to Analytical Procedures). Testing for inorganic contaminants shall be performed at a laboratory certified by the executive director.(e) Reporting requirements for IOCs. The owner or operator of a public water system shall ensure that the executive director is provided with a copy of the results of any test, measurement, or analysis required by this subsection. The copies must be submitted within the first ten days following the month in which the result is received by the public water system, or the first ten days following the end of the required monitoring period as provided by this subsection, whichever occurs first. The copies must be mailed to the Texas Commission on Environmental Quality, Water Supply Division, MC 155, P.O. Box 13087, Austin, Texas 78711-3087.(f) Compliance determination for IOCs. Compliance with this section shall be determined using the following criteria.(1) Compliance with the MCL for each IOC shall be based on the analytical results obtained at each individual sampling point.(2) A public water system that exceeds the levels for nitrate, nitrite, or the sum of nitrate and nitrite specified in subsection (b) of this section commits an acute MCL violation. Compliance shall be based on the results of the single sample. If a confirmation sample is collected, compliance shall be based on the average result of the original and confirmation samples.(3) A public water system that exceeds the levels of antimony, arsenic, asbestos, barium, beryllium, cadmium, chromium, cyanide, fluoride, mercury, selenium, or thallium (i.e., any IOC except nitrate and nitrite) specified in subsection (b) of this section at any sampling point commits an MCL violation.(A) For systems that are sampling annually or less frequently, compliance may be based on the results of a single sample, if a confirmation sample is not collected.(B) For systems that are sampling annually or less frequently, if a confirmation sample is collected, compliance will be based on the average result of the original and confirmation samples.(C) For systems that are sampling more frequently than annually, compliance is based on the running annual average for each sampling point.(D) If a single quarterly sample would cause the running annual average to be exceeded, then the system is immediately out of compliance.(4) Any result below the method detection limits of 40 CFR §141.23(a)(4)(i) shall be considered to be zero for the purpose of calculating compliance.(5) The executive director may exclude the results of obvious sampling errors from the compliance calculations.(6) Compliance with the IOC MCLs must be based on the results of all samples required by the executive director, regardless of whether that number is greater or less than the minimum required number.(7) For purposes of determining compliance, arsenic results must be reported to the nearest 0.001 milligram per liter.(8) A public water system that fails to do a required public notice or certify that the public notice has been performed commits a public notice violation.(g) Public notice for IOCs. A public water system that violates the requirements of this section must notify the executive director and the system's customers.(1) A public water system that violates the MCL for nitrate, nitrite, or the sum of nitrate and nitrite shall notify the executive director within 24 hours and the water system customers of this acute violation in accordance with the requirements of §290.122(a) of this title (relating to Public Notification).(2) A public water system that violates the MCL for nitrate, nitrite, or the sum of nitrate and nitrite that is unable to comply with the 24-hour confirmation sampling requirement must immediately notify the consumers served by the public water system in accordance with §290.122(a) of this title.(3) A public water system that fails to meet the MCL for any of the regulated IOCs except nitrate and nitrite (i.e., antimony, arsenic, asbestos, barium, beryllium, cadmium, chromium, cyanide, fluoride, mercury, selenium, and thallium) shall notify the executive director by the end of the next business day and the water system customers in accordance with the requirements of §290.122(b) of this title.(4) A public water system that fails to conduct the monitoring required by this section must notify its customers of the violation in accordance with the requirements of §290.122(c) of this title.(5) If a public water system has a distribution system separable from other parts of the distribution system with no interconnections, the executive director may allow the system to give public notice to only the area served by that portion of the system that is out of compliance.(h) Best available technology (BAT) for IOCs. BAT for treatment of violations of MCLs in subsection (b) of this section are listed in 40 CFR §141.62.(i) Small system compliance technologies (SSCTs) for arsenic. SSCTs for arsenic are listed in 40 CFR §141.62(d) and may be utilized with commission approval. When point-of-use or point-of-entry devices are used for compliance, the water system must develop a program for the long-term operation, maintenance, and monitoring of the devices to ensure adequate performance.(j) Bottled water. In accordance with 40 CFR §141.101, bottled water may be used on a temporary basis only and with approval by the commission in order to avoid unreasonable risk to health.</content><note type="source"><p>Source Note: The provisions of this §290.106 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective December 23, 2004, 29 TexReg 11729; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.107"><num value="290.107">§290.107</num><heading>Organic Contaminants</heading><content>(a) Applicability. All community and nontransient, noncommunity water systems shall comply with the requirements of this section regarding organic contaminants. For purposes of this section, systems using groundwater under the direct influence of surface water shall meet the organic sampling requirements given for surface water systems.(b) Maximum contaminant levels (MCLs) for organic contaminants. The concentration of synthetic and volatile organic chemicals shall not exceed the MCLs specified in this section.(1) The following are MCLs for synthetic organic chemical (SOC) contaminants.Attached Graphic(2) The following are MCLs for volatile organic chemical (VOC) contaminants.Attached Graphic(3) Each public water system must certify annually to the executive director (using third-party or manufacturer's certification) that when acrylamide or epichlorohydrin are used in drinking water systems, the combination (or product) of dose and monomer level does not exceed 0.05% dosed at 1.0 milligrams per liter (mg/L) (or equivalent) for acrylamide and 0.01% dosed at 20 mg/L (or equivalent) for epichlorohydrin. (c) Monitoring requirements for organic contaminants. Public water systems shall monitor for organic contaminants at the locations and frequency in paragraphs (1) and (2) of this subsection. All monitoring conducted under the requirements of this section must be conducted at sites designated in the public water system's monitoring plan. All samples must be taken during periods of normal operation.(1) SOC monitoring requirements. Monitoring of the SOC contaminants shall be conducted at the frequency and locations given in this paragraph.(A) SOC monitoring locations. Monitoring of the SOC contaminants shall be conducted at the following locations.(i) Systems shall routinely sample at sample sites representative of each entry point to the distribution system.(ii) Subsequent samples must be taken at the same sample site unless the executive director determines that a change in conditions makes a different sample site more representative of the water available to customers.(iii) The executive director must approve any change in sampling location.(B) Initial SOC monitoring frequency. Prior to using a new source of water as drinking water, public water systems shall monitor at the frequency established by the executive director to ensure that the water distributed to customers will comply with the MCLs for SOCs.(C) Routine SOC monitoring frequency. Monitoring of the SOC contaminants shall be conducted at the following frequency.(i) Community and nontransient, noncommunity water systems shall take four consecutive quarterly samples for each SOC contaminant listed in subsection (b)(1) of this section during each compliance period beginning with the initial compliance period.(ii) Community and nontransient, noncommunity water systems serving more than 3,300 persons that do not detect a contaminant in the initial compliance period may reduce the sampling frequency at that sample site to a minimum of two consecutive quarterly samples in one year during each repeat compliance period.(iii) Community and nontransient, noncommunity water systems serving 3,300 persons or fewer that do not detect a contaminant in the initial compliance period may reduce the sampling frequency at that sample site to a minimum of one sample during each repeat compliance period.(iv) Each public water system shall monitor at the time designated by the executive director within each compliance period.(D) Increased SOC monitoring. The executive director may change the monitoring frequency for SOCs.(i) Entry points that exceed the SOC MCLs of subsection (b)(1) of this section as determined by subsection (f) of this section must be monitored quarterly. After a minimum of four quarterly samples shows the system is in compliance and the executive director determines the system is reliably and consistently below the MCL, as determined by the methods specified in subsection (f) of this section, the executive director may allow the system to monitor annually. Systems that monitor annually must monitor during the quarter that previously yielded the highest analytical result.(ii) The executive director may change the monitoring frequency if an organic SOC contaminant is detected in any sample.(I) If an organic SOC contaminant is detected in any sample, the system must monitor quarterly at each entry point to the distribution system at which a detection occurs.(II) After a system collects a minimum of two consecutive quarterly samples at a groundwater sample site, the executive director may decrease the quarterly monitoring requirement specified in subclause (I) of this clause, if the sample site is reliably and consistently below the MCL.(III) After a system collects a minimum of four consecutive quarterly samples at a surface water sample site or a groundwater under the direct influence of surface water sample site, the executive director may decrease the quarterly monitoring requirement specified in subclause (I) of this clause, if the sample site is reliably and consistently below the MCL.(IV) After the executive director determines that a sample site is reliably and consistently below the MCL, the executive director may allow the sample site to be monitored annually. Systems that monitor annually must monitor during the quarter that previously yielded the highest analytical result.(V) Sample sites that have three consecutive annual samples with no detection of a contaminant may be granted a waiver at the discretion of the executive director. The executive director will consider the waiver for each compliance period.(VI) If monitoring results in detection of one or more of certain related contaminants (i.e., heptachlor and heptachlor epoxide), then subsequent monitoring shall analyze for all related contaminants.(iii) The executive director may increase the required SOC monitoring frequency, where necessary, to detect variations within the system (e.g., fluctuations in concentration due to seasonal use, changes in water source, etc.).(iv) The executive director may require a confirmation sample for positive or negative results. If a confirmation sample is required by the executive director, the result must be averaged with the first sampling result and the average used for the compliance determination as specified in subsection (f) of this section. The executive director has discretion to delete results of obvious sampling errors from this calculation.(E) Waivers for SOC monitoring. The executive director may grant a waiver to reduce the SOC monitoring frequency from the monitoring frequency requirements of subparagraphs (B) and (C) of this paragraph, based on previous use of the contaminant within the watershed or zone of influence of the water source. Examples of use of a contaminant include transport, storage, or disposal. If a determination by the executive director reveals no previous use of the contaminant within the watershed or zone of influence, a waiver may be granted. If the executive director cannot determine whether the contaminant has been used in the watershed or if the contaminant has been used previously, then the following factors shall be used to determine whether a waiver is granted:(i) previous analytical results;(ii) the proximity of the system to a potential point or non-point source of contamination. Point sources include spills and leaks of chemicals at or near a water treatment facility or at drinking water sources, manufacturing, distribution, or storage facilities, or from hazardous and municipal waste landfills and other waste handling or treatment facilities. Non-point sources include the use of pesticides to control insects, weeds, or pests on agricultural areas, forest lands, home and garden property, or other land application uses;(iii) the environmental persistence and transport of the pesticide herbicide or contaminant;(iv) how well the water source is protected against contamination due to such factors as depth of the well, type of soil, and the integrity of well construction. Surface water systems must consider watershed vulnerability and protection;(v) elevated nitrate levels at the water supply source; and(vi) use of polychlorinated byphenyls (PCBs) in equipment used in the production, storage, or distribution of water (i.e., PCBs used in pumps, transformers, etc.).(F) Compositing for SOC monitoring. The executive director may reduce the total number of samples required from a system for analysis by allowing the use of compositing. Composite samples from a maximum of five entry points to the distribution system are allowed. Compositing of samples must be done in the laboratory and analyzed within 14 days of sample collection.(i) If any of the SOC contaminants listed in subsection (b)(1) of this section are detected in a composite sample, then a follow-up sample must be taken from each entry point to the distribution system included in the composite and analyzed within 14 days of collection. (ii) If duplicates of the original SOC sample taken from each entry point to the distribution system used in the composite are available, the executive director may use these duplicates instead of resampling. The duplicate must be analyzed within 14 days of collection and the results reported to the executive director.(iii) Compositing may only be permitted at entry points to the distribution system within a single system.(2) VOC monitoring requirements. Monitoring of the VOC contaminants shall be conducted at the frequency and locations given in this paragraph.(A) VOC monitoring locations. Monitoring of the VOC contaminants shall be conducted at the following locations.(i) Systems shall routinely sample at sample sites representative of each entry point to the distribution system.(ii) Subsequent samples must be taken at the same sample site unless the executive director determines that a change in conditions makes a different sample site more representative of the water available to customers.(iii) The executive director must approve any change in sampling location.(B) Initial VOC monitoring frequency. Prior to using water as a drinking water source, public water systems shall monitor at the frequency established by the executive director to ensure that the water distributed to customers will comply with the MCLs for VOCs.(C) Routine VOC monitoring frequency. Monitoring of the VOC contaminants shall be conducted at the following frequency.(i) Community and nontransient, noncommunity water systems shall take four consecutive quarterly samples for each VOC contaminant listed in subsection (b)(2) of this section during each compliance period, beginning with the initial compliance period.(ii) If the initial monitoring for VOC contaminants has been completed, and the system did not detect any VOC contaminant listed in subsection (b)(2) of this section, the system shall take one sample annually beginning with the initial compliance period.(iii) After a minimum of three years of annual sampling, the executive director may allow groundwater systems with no previous detection of any VOC contaminant listed in subsection (b)(2) of this section to take one sample during each compliance period.(iv) Each community and nontransient, noncommunity groundwater system that does not detect a VOC contaminant listed in subsection (b)(2) of this section may be granted a waiver from the annual or triennial requirements of subsection (c)(2)(C)(ii) and (iii) of this section after completing the initial monitoring. For the purposes of this section, detection is defined as an analytical result of 0.0005 mg/L or greater. A waiver shall be effective for no more than six years (two compliance periods).(v) Each public water system shall monitor at the time designated by the executive director within each compliance period.(D) Increased VOC monitoring. The executive director may change the monitoring frequency for VOCs.(i) Sample sites that exceed the VOC MCLs of subsection (b)(2) of this section, as determined by subsection (f) of this section, must be monitored quarterly. After a minimum of four consecutive quarterly samples that show the system is in compliance as specified in subsection (f) of this section and after the executive director determines that the system is reliably and consistently below the MCL, the executive director may allow the system to monitor annually during the quarter that previously yielded the highest analytical result.(ii) The executive director may require a confirmation sample for positive or negative results. If a confirmation sample is required by the executive director, the result must be averaged with the first sampling result and the average is used for the compliance determination as specified by subsection (f) of this section. The executive director has discretion to delete results of obvious sampling errors from this calculation.(iii) If a VOC contaminant listed in subsection (b)(2) of this section is detected at a level exceeding 0.0005 mg/L in any sample, then:(I) the system must monitor quarterly at each entry point to the distribution system that resulted in a detection;(II) the executive director may decrease the quarterly monitoring requirement specified in subsection (c)(2)(D)(iii)(I) of this section provided that the executive director has determined that the system is reliably and consistently below the MCL. In no case shall the executive director make this determination unless a groundwater system takes a minimum of two quarterly samples and a surface water system takes a minimum of four quarterly samples;(III) if the executive director determines that the system is reliably and consistently below the MCL, the executive director may allow the system to monitor annually. Systems that monitor annually must monitor during the quarter that previously yielded the highest analytical result;(IV) systems which have three consecutive annual samples with no detection of a contaminant may be granted a waiver as specified in subparagraph (E) of this paragraph; and(V) groundwater systems that have detected one or more of the following two-carbon organic compounds: trichloroethylene, tetrachloroethylene, 1,2-dichloroethane, 1,1,1-trichloroethane, cis-1,2-dichloroethylene, trans-1,2-dichloroethylene, or 1,1-dichloroethylene shall monitor quarterly for vinyl chloride. A vinyl chloride sample shall be taken at each entry point to the distribution system at which one or more of the two-carbon organic compounds was detected. If the result of the first analysis does not detect vinyl chloride, the executive director may reduce the quarterly monitoring frequency for vinyl chloride to one sample during each compliance period. Surface water systems are required to monitor for vinyl chloride as specified by the executive director.(iv) The executive director may increase the required VOC monitoring frequency, where necessary, to detect variations within the system (e.g., fluctuations in concentration due to seasonal use, changes in water source, etc.).(E) Waivers for VOC monitoring. The executive director may grant a waiver after evaluating the previous use (including transport, storage, or disposal) of the contaminant within the watershed or zone of influence of the water sources. If a determination by the executive director reveals no previous use of the contaminant within the watershed or zone of influence, a waiver may be granted. If previous use of the contaminant is unknown or it has been used previously, then the following factors shall be used to determine whether a waiver is granted: (i) previous analytical results;(ii) the proximity of the system to a potential point or non-point source of contamination. Point sources include spills and leaks of chemicals at or near a water treatment facility or at drinking water sources manufacturing, distribution, or storage facilities, or from hazardous and municipal waste landfills and other waste handling or treatment facilities;(iii) the environmental persistence and transport of the contaminants;(iv) the number of persons served by the public water system and the proximity of a smaller system to a larger system;(v) how well the water source is protected against contamination (e.g., is it a surface or groundwater system). Groundwater systems must consider factors such as depth of the well, the type of soil, and well construction. Surface water systems must consider watershed protection;(vi) as a condition of the waiver, a groundwater system must take one sample at each entry point to the distribution system during the time the waiver is effective (i.e., one sample during two compliance periods or six years) and update its vulnerability assessment considering the factors listed in this paragraph. Based on this updated vulnerability assessment, the executive director must reconfirm that the system is not vulnerable. If the executive director does not make this reconfirmation within three years of the initial determination, then the waiver is invalid and the system is required to sample annually; and(vii) community and nontransient surface water systems that do not detect a VOC contaminant listed in subsection (b)(2) of this section may be considered by the executive director for a waiver from the annual sampling requirements of subparagraph (C)(ii) of this paragraph after completing the initial monitoring. Systems meeting this criteria must be determined by the executive director to be non-vulnerable based on a vulnerability assessment during each compliance period. Each system receiving a waiver shall sample at the frequency specified by the executive director (if any).(F) Compositing for VOC monitoring. The executive director may reduce the total number of samples a system must analyze by allowing the use of compositing. Composite samples from a maximum of entry points to the distribution system are allowed. Compositing of samples must be done in the laboratory and analyzed within 14 days of sample collection.(i) If the VOC concentration in the composite sample is 0.0005 mg/L or greater for any contaminant listed in subsection (b)(2) of this section, then a follow-up sample must be taken and analyzed within 14 days from each entry point to the distribution system included in the composite.(ii) If duplicates of the original sample taken from each entry point to the distribution system used in the composite are available, the system may use these instead of resampling. The duplicate must be analyzed within 14 days of collection.(iii) Compositing may only be permitted by the executive director at entry points to the distribution system within a single system.(iv) Procedures for compositing VOC samples are as stated in 40 Code of Federal Regulations (CFR) §141.24(f)(14)(iv).(d) Analytical requirements for organic contaminants. Analytical procedures shall be performed in accordance with §290.119 of this title (relating to Analytical Procedures). Testing for organic contaminants shall be performed at a laboratory certified by the executive director.(e) Reporting requirements for organic contaminants. The owner or operator of a public water system shall ensure the executive director is provided with a copy of the results of any test, measurement, or analysis required by this subsection. The copies must be submitted within the first ten days following the month in which the result is received by the public water system, or the first ten days following the end of the required monitoring period as provided by this subsection, whichever occurs first. The copies must be mailed to the Water Supply Division, MC 155, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087.(f) Compliance determination for organic contaminants. Compliance with the MCLs of subsection (b)(1) and (2) of this section shall be determined based on the analytical results obtained at each entry point to the distribution system.(1) If one sampling point is in violation of any MCL in subsection (b) of this section, then the system is in violation of the MCL for that contaminant.(A) For systems monitoring more than once per year, compliance with the MCL is determined by a running annual average at each sampling point.(B) Systems monitoring annually or less frequently whose sample result exceeds the MCL must begin quarterly sampling; systems will not be considered in violation of the MCL until they have completed one year of quarterly sampling.(C) If any sample result will cause the running annual average to exceed the MCL at any sampling point, the system is out of compliance with the MCL immediately.(D) If a system fails to collect the required number of samples, compliance will be based on the total number of samples collected.(E) If a sample result is less than the detection limit, zero will be used to calculate the annual average.(2) The executive director has the authority to determine compliance or initiate enforcement action based upon analytical results and other information compiled by sanctioned representatives and agencies. (3) A public water system that fails to do a required public notice or certify that the public notice has been performed commits a public notice violation.(g) Public notification requirements for organic contaminants. A public water system that violates the requirements of this section must notify the executive director and the system's customers. If a public water system has a distribution system separate from other parts of the distribution system with no interconnections, the executive director may allow the system to give public notice to only that portion of the system that is out of compliance.(1) A system that violates an MCL given in subsection (b) of this section, shall report to the executive director and notify the public as provided under §290.122(b) of this title (relating to Public Notification).(2) A public water system that fails to conduct the monitoring required by this section must notify its customers of the violation in accordance with the requirements of §290.122(c) of this title.(h) Best available technology for organic contaminants. Best available technology for treatment of violations of MCLs in subsection (b) of this section are listed in 40 CFR §141.61. Copies are available for review in the Water Supply Division, MC 155, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087.</content><note type="source"><p>Source Note: The provisions of this §290.107 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective December 23, 2004, 29 TexReg 11729; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.108"><num value="290.108">§290.108</num><heading>Radionuclides Other than Radon</heading><content>(a) Applicability. All community water systems shall comply with the requirements of this section regarding radionuclide contaminants. Public water systems treating groundwater under the direct influence of surface water must comply with the radionuclide requirements for surface water systems. Public water systems shall comply with the initial monitoring requirements.(b) Maximum contaminant levels (MCL). The concentration of radionuclide contaminants in the water entering the distribution system shall not exceed the following MCLs.(1) MCLs for naturally occurring radionuclides are as follows:(A) 5 picoCuries per liter (pCi/L) for combined radium-226 and radium-228, as calculated by the summation of the results for radium-226 and radium-228;(B) 15 pCi/L for gross alpha particle activity (including radium-226 but excluding radon and uranium); and(C) 30 micrograms per liter for uranium.(2) MCLs for beta particle and photon radioactivity from man-made radionuclides in drinking water in community water systems are equivalent to the MCLs under 40 Code of Federal Regulations (CFR) §141.66(d), as amended and adopted in the CFR through December 7, 2000 (65 FR 76708), which is adopted by reference.(c) Monitoring requirements. Public water systems shall measure the concentration of radionuclides at locations and frequencies specified in the system's monitoring plan. All samples must be collected during normal operating conditions.(1) Monitoring frequency for naturally occurring radionuclides. The monitoring frequency requirements for gross alpha particle activity, combined radium-226 and radium-228, and uranium are as follows.(A) Initial monitoring frequency. All systems that use a new source of water must begin to conduct initial monitoring of the new source within 90 days after initiating use of the source.(i) If the initial monitoring results are at or above an MCL, the system must perform quarterly monitoring as described in subparagraph (C) of this paragraph.(ii) If the initial monitoring results are below all of MCLs given in subsection (b)(1) of this section, the system shall perform routine monitoring as described in subparagraph (B) of this paragraph.(B) Routine monitoring. The results of samples collected during initial and routine monitoring periods will be used to determine the monitoring frequency for subsequent monitoring periods.(i) If the results for all contaminants (gross alpha particle activity, combined radium-226 and radium-228, and uranium) are below the detection limits specified in Table A of this clause, the system must collect and analyze at least one sample at that sampling point once every nine years.Attached Graphic(ii) If the result for any contaminant is at or above the detection limit but at or below one-half the MCLs given in subsection (b) of this section, the system must collect and analyze at least one sample at that sampling point every six years.(iii) If the result for any contaminant is above one-half the MCLs given in subsection (b) of this section but below the MCL, the system must collect and analyze at least one sample at that sampling point every three years.(iv) If the result for any contaminant is at or above any of the MCLs given in subsection (b) of this section, monitoring must be performed at the frequency given in subparagraph (C) of this paragraph.(C) Increased monitoring. A system must perform increased monitoring if any results at a sampling point are at or above the MCLs, or at the direction of the executive director.(i) If the results for any contaminant are at or above any of the MCLs given in subsection (b) of this section, consecutive quarterly monitoring must be performed at that sample point.(ii) If the average of quarterly monitoring results is less than the MCLs in subsection (b) of this section, the sample point may be returned to the routine sampling frequency given in subparagraph (B) of this paragraph.(iii) To fulfill quarterly monitoring requirements a system may composite up to four consecutive quarterly samples from a single entry point if analysis is done within a year of the first sample.(iv) The analytical results from a composite sample will be treated as the annual average to determine compliance with the MCLs and future monitoring frequency requirements.(v) When required by the executive director, more frequent monitoring must be conducted in the vicinity of mining or other operations that may contribute alpha particle radioactivity to either surface or groundwater sources of drinking water, or when changes in the distribution system or treatment processing occur that may increase the concentration of radionuclide in the finished water.(vi) Community public water systems shall conduct monitoring when required by the executive director.(D) Historical data. A system may use historical data to comply with the initial monitoring requirement, if approved by the executive director.(i) A system having only one entry point to the distribution system may use the monitoring data from the previous entry point or distribution system compliance monitoring to satisfy initial monitoring requirements.(ii) A system with multiple entry points that has appropriate historical monitoring data for each entry point to the distribution system may use previous compliance monitoring data to satisfy initial monitoring requirements.(iii) To satisfy initial monitoring requirements, a community water system with appropriate historical data for a representative point in the distribution system may use the monitoring data from the distribution system, provided that the executive director finds that the historical data satisfactorily demonstrates that each entry point to the distribution system is expected to be in compliance based upon the historical data and reasonable assumptions about the variability of contaminant levels between entry points.(E) Sample invalidation. The executive director may invalidate the results of obvious sampling or analytic errors.(F) Confirmation samples. The executive director may require more frequent monitoring or may require confirmation samples at the executive director's discretion.(G) Sampling scheduling. Systems shall monitor at the time designated by the executive director.(2) Monitoring and compliance for man-made radionuclides. The monitoring and compliance requirements for man-made radionuclide under 40 CFR §141.26(b), as amended and adopted in the CFR through December 7, 2000 (65 FR 76708), are adopted by reference.(3) Monitoring locations for radionuclide contaminants. Systems must monitor at sample sites described in the system's monitoring plan.(A) Initial monitoring for a new water source must be conducted at a site representative of the water quality of the new source of water.(B) Routine compliance monitoring for the radionuclide covered by this section must be performed at sampling points representing each entry point to the distribution system. If results from an entry point exceed one-half the MCL, the executive director may require the system to sample all water sources providing water to that entry point.(d) Analytical requirements for radionuclide contaminants. Analytical procedures shall be performed in accordance with §290.119 of this title (relating to Analytical Procedures). Testing for radionuclide contaminants shall be performed at a laboratory certified by the executive director.(e) Reporting requirements. The owner or operator of a public water system must ensure the executive director is provided with a copy of the results of any test, measurement, or analysis required by this section. The copies must be submitted within the first ten days following the month in which the result is received by the public water system, or the first ten days following the end of the required monitoring period as provided by this subsection, whichever occurs first. The copies must be mailed to the Water Supply Division, MC 155, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087.(f) Compliance determination. Compliance with the requirements of this section shall be determined as follows.(1) If the running average annual MCL for gross alpha particle activity, combined radium-226 and radium-228, or uranium as set forth in subsection (b) of this section is exceeded, based on quarterly monitoring results, the system has committed an MCL violation. (A) A gross alpha particle activity measurement may be substituted for the required radium-226 and radium-228 analysis provided that the measured gross alpha particle activity does not exceed 5 pCi/L at a confidence level of 95% (1.65 theta where theta is the standard deviation of the net counting rate of the sample).(B) When the gross alpha particle activity exceeds 5 pCi/L, the same or an equivalent sample shall be analyzed for radium-226 and radium-228.(C) If a sample result is less than the detection limit, zero will be used to calculate the annual average, unless a gross alpha particle activity is being used in lieu of radium-226 and/or uranium. If the gross alpha particle activity result is less than detection, one-half the detection limit will be used to calculate the annual average.(D) The results of all samples taken and analyzed under the provisions of this section will be used in determining compliance, even if that number is greater or less than the minimum required.(E) If a system fails to complete required increased monitoring, the executive director may base compliance on all available sample results.(F) If the results at one sample site are in violation, the public water system is in violation.(G) When confirmation samples are collected, the average of an initial sample and its confirmation sample must be averaged for the purposes of determining compliance.(H) To judge compliance with the MCLs, sample results must be rounded to the same number of significant figures as the MCL for the substance in question.(2) If the average annual MCL for man-made radionuclide set forth in subsection (b) of this section is exceeded, the system has committed an MCL violation.(3) A public water system that fails to conduct the monitoring tests required by this subsection commits a monitoring violation.(4) A public water system that fails to report the results of the monitoring tests required by this subsection commits a reporting violation.(5) A public water system that fails to do a required public notice or certify that the public notice has been performed commits a public notice violation.(g) Public notification. A public water system that violates the requirements of this section must notify the executive director and the system's customers, as follows.(1) A public water system that violates the MCL for gross alpha particle activity, combined radium-226 and radium-228, or uranium shall give notice to the executive director and notify the public as required by §290.122(b) of this title (relating to Public Notification).(2) The operator of a community water system that violates the MCL for man-made radionuclide shall give notice to the executive director and to the public as required by §290.122(b) of this title. (3) A public water system that fails to conduct the monitoring required by this subsection must notify its customers of the violation in accordance with the requirements of §290.122(c) of this title.(h) Best available technology for radionuclides other than radon. Best available technology for treatment of violations of MCLs in subsection (b) of this section are listed in 40 CFR §141.66(g). (i) Small system compliance technologies (SSCTs) for radionuclides. SSCTs for radionuclides are listed in 40 CFR §141.66(h) and may be utilized with commission approval. When point-of-use or point-of-entry devices are used for compliance, the water system must develop a program for the long-term operation, maintenance, and monitoring of the devices to ensure adequate performance.(j) Bottled water. In accordance with 40 CFR §141.101, bottled water may be used on a temporary basis only and with approval by the commission in order to avoid unreasonable risk to health.</content><note type="source"><p>Source Note: The provisions of this §290.108 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective December 23, 2004, 29 TexReg 11729; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.109"><num value="290.109">§290.109</num><heading>Microbial Contaminants</heading><content>(a) Applicability. All public water systems must produce and distribute water that meets the provisions of this section regarding microbial contaminants.(b) Maximum contaminant levels (MCL) for microbial contaminants. Treatment techniques and MCL requirements for microbial contaminants are based on detection of those contaminants or fecal indicator organisms.(1) A public water system is in compliance with the MCL for Escherichia coli (E. coli) unless any of the following conditions occur:(A) The public water system has an E. coli -positive repeat sample following a total-coliform-positive routine sample;(B) The public water system has a total coliform-positive repeat sample following an E. coli- positive routine sample;(C) The public water system fails to take all required repeat samples following an E. coli -positive routine sample; or(D) The public water system fails to test for E. coli when any repeat sample tests positive for total coliform.(E) The E. coli MCL is defined as when a condition described in subparagraphs (A) - (D) of this paragraph occurs.(2) For public water systems required to collect raw groundwater samples, the standard is no detection of fecal indicators in a raw groundwater sample.(c) Treatment technique triggers and assessment requirements for microbial contaminants. All public water systems shall comply with the requirements as described in this subsection. Public water systems shall conduct assessments after exceeding any of the treatment technique triggers as described in paragraphs (1) and (2) of this subsection.(1) Level 1 treatment technique triggers are:(A) For a public water system which collects 40 or more distribution samples per month, the treatment technique trigger is defined as when more than 5.0% of samples collected in a month are total coliform-positive.(B) For a public water system which collects fewer than 40 distribution samples per month, the treatment technique trigger is defined as when two or more samples collected in a month are total coliform-positive.(C) When a public water system fails to collect all required repeat samples after a total coliform-positive result.(2) Level 2 treatment technique triggers are:(A) An E. coli MCL violation as specified in subsection (b)(1)(A) - (D) of this section occurs.(B) A second Level 1 treatment technique trigger occurs as defined in paragraph (1) of this subsection, within a rolling 12-month period. If the executive director has determined the reason that the samples that caused the first Level 1 treatment technique trigger were total coliform-positive and has established that the public water system has corrected the problem, a public water system will not be required to conduct and complete a Level 2 assessment. The public water system shall have identified any sanitary defect and provided adequate documentation to the executive director in the initial Level 1 assessment which established the reason that caused the first Level 1 treatment technique trigger and that the public water system corrected the problem. If the executive director has determined that a public water system is not required to conduct a Level 2 assessment based on the occurrence of a second Level 1 treatment technique trigger within a rolling 12-month period, the public water system shall still conduct the required Level 1 assessment and shall complete and submit the executive director-approved Level 1 assessment form.(3) Treatment technique assessment requirements are:(A) Level 1 and Level 2 assessments are conducted in order to identify the possible presence of sanitary defects and defects in distribution system coliform monitoring practices. The assessments may also indicate that no sanitary defects were identified. When conducting assessments, systems shall ensure that the assessor evaluates minimum elements that include review and identification of inadequacies in sample sites; sampling protocol; sample processing; atypical events that could affect distributed water quality or indicate that distributed water quality was impaired; changes in distribution system maintenance and operation that could affect distributed water quality (including, but not limited to water storage); source and treatment considerations that bear on distributed water quality; and existing water quality monitoring data. The system shall conduct and complete the assessment in the format as prescribed by the executive director that tailors specific assessment elements with respect to the size and type of the system and the size, type, and characteristics of the distribution system.(i) Level 1 and Level 2 assessments shall be conducted and completed by the public water system, licensed operators as required under §290.46(e) of this title (relating to Minimum Acceptable Operating Practices for Public Drinking Water Systems), or other parties approved by the executive director. The public water system, licensed operators, as required under §290.46(e) of this title, and other parties approved by the executive director shall have also completed training as required in clause (iii) of this subparagraph and any additional training required by the executive director in writing, upon notice to the public water system, licensed operators, and other parties approved by the executive director.(ii) Other parties approved by the executive director include, but are not limited to:(I) backflow prevention assembly testers and customer service inspectors licensed under Chapter 30 of this title (relating to Occupational Licenses and Registrations);(II) plumbing inspectors and water supply protection specialists licensed by the Texas State Board of Plumbing Examiners;(III) licensed professional engineers licensed by the Texas Board of Professional Engineers;(IV) circuit riders or technical assistance providers under contract with the executive director or other government agency as approved by the executive director; or(V) utility supervisor or manager supported by various utility staff or other individuals that meet the assessment requirements as described in this paragraph.(iii) Assessors who have conducted Level 1 assessments which were determined by the executive director to be insufficient or inadequate may be required to complete additional training or obtain certifications as prescribed by the executive director.(B) The Level 1 and Level 2 assessments shall be conducted and completed consistent with all directives set forth by the executive director and with respect to the size, type, and characteristics of the public water system. When conducting assessments, at a minimum, public water systems shall ensure that the following items are evaluated: (i) review and identification of inadequacies in sample sites;(ii) sampling protocol;(iii) sample processing;(iv) atypical events that could affect distributed water quality or indicate that distributed water quality was impaired;(v) changes in distribution system maintenance and operation that could affect distributed water quality (including, but not limited to water storage);(vi) source and treatment considerations that bear on distributed water quality, where appropriate;(vii) existing water quality monitoring data; and(viii) the possible presence of sanitary defects.(C) A public water system shall conduct a Level 1 assessment and complete the executive director-approved Level 1 assessment form when the public water system exceeds one of the treatment technique triggers in paragraph (1) of this subsection. The public water system must note no sanitary defects were identified or describe sanitary defects detected, corrective actions completed, and a proposed timetable for any corrective actions not already completed in the Level 1 assessment form. At the discretion of the executive director, the public water system shall comply with any additional or expedited corrective actions when there is a potential for an acute health risk.(i) Both the Level 1 assessment and the executive director-approved Level 1 assessment form shall be completed and the form submitted to the executive director as soon as practical, but no later than 30 days after the public water system learns that it has exceeded a trigger, or 30 days after all routine and repeat monitoring was required to be completed for the calendar month in which the system exceeded the trigger, whichever is earlier.(ii) If the executive director determines that the Level 1 assessment is not sufficient, the public water system shall consult with the executive director and submit a revised assessment form to the executive director within 30 days from the date of consultation. (iii) The executive director will determine if the public water system has identified the likely cause(s) of the trigger and, if so, was the cause(s) corrected, or has an acceptable schedule to correct the problem been included. The assessments may also indicate that no sanitary defects were identified.(D) A public water system shall ensure that a Level 2 assessment and the executive director-approved Level 2 assessment form are conducted and completed consistently with all directives set forth by the executive director if the public water system exceeds one of the treatment technique triggers in paragraph (2) of this subsection. The public water system shall comply with any expedited actions or additional actions required by the executive director in the case of an E. coli MCL violation.(i) After any trigger in paragraph (2) of this subsection, the public water system shall ensure that both the Level 2 assessment and the executive director-approved Level 2 assessment form are completed by the public water system, licensed operators as required under §290.46(e) of this title, or by parties approved by the executive director and the completed form submitted to the executive director as soon as practical but no later than 30 days after the public water system learns that it has exceeded a trigger in paragraph (2) of this subsection, or 30 days after all routine and repeat monitoring was required to be completed for the calendar month in which the system exceeded the trigger, whichever is earlier.(ii) If the executive director determines that the completed Level 2 assessment is not sufficient or the proposed timetable for any corrective actions not completed is not sufficient, the public water system shall consult with the executive director. If any revisions are required after consultation, the public water system shall submit a revised assessment form to the executive director within 30 days from the date of the consultation.(iii) After the Level 2 assessment is submitted, the executive director will determine if the public water system has identified the likely cause(s) of the trigger and corrected the cause(s), or has included an acceptable timetable for correcting the cause(s). The assessments may also indicate that no sanitary defects were identified. (E) Public water systems must correct sanitary defects found through either Level 1 or Level 2 assessments described in this subsection. For corrective actions not completed by the time of submission of the assessment form, the public water system must complete the corrective actions in compliance with a timetable approved by the executive director in consultation with the public water system. The public water system must notify the executive director when scheduled corrective actions have been completed.(F) At any time during the assessment or corrective action phase, either the public water system or the executive director may request a consultation with the other party to determine the appropriate actions. The public water system shall consult with the executive director on all relevant information that may impact its ability to comply with a requirement of this subsection.(d) Monitoring requirements for microbial contaminants. Public water systems shall collect samples for total coliform, fecal coliform, E. coli (or other approved fecal indicator) at sampling sites and a sample collection schedule, as designated by the public water system, which are subject to review and revision as directed by the executive director. All compliance samples must be collected at sampling sites and a sample collection schedule that are representative of water throughout the distribution system and shall be reflected in the public water system's Sample Siting Plan and included with the public water system's monitoring plan in accordance with §290.121 of this title (relating to Monitoring Plans). All public water systems shall develop a written Sample Siting Plan as described in paragraph (6) of this subsection.(1) Routine microbial sampling locations. Public water systems shall routinely monitor for microbial contaminants at the following locations.(A) Public water systems must collect routine distribution coliform samples at a customer's premise, dedicated sampling station, or other designated compliance sampling location at active service connections which are representative of water quality throughout the distribution system. Other sampling sites may be used if located adjacent to active service connections.(B) Public water systems shall collect distribution coliform samples at locations specified in the public water system's Sample Siting Plan which shall be included in the public water system's monitoring plan.(2) Routine distribution coliform sampling frequency. All public water systems must sample for distribution coliform at the following frequency.(A) Community and noncommunity public water systems must collect routine distribution coliform samples at a frequency based on the population served by the system.(i) The population for noncommunity systems will be based on the maximum number of persons served on any given day during the month based on the data reported by the public water system to the executive director during the most recent sanitary survey of the public water system or any other data as required by the executive director.(ii) The population of community systems will be based on the data reported by the public water system to the executive director during the most recent sanitary survey of the public water system or any other data as required by the executive director.(iii) The minimum sampling frequency for public water systems is shown in the following table.Attached Graphic(B) A public water system which uses surface water or groundwater under the direct influence of surface water must collect routine distribution coliform samples at regular time intervals throughout the month.(C) A public water system which uses only purchased water or groundwater not under the direct influence of surface water and serves more than 4,900 persons must collect routine distribution coliform samples at regular time intervals throughout the month.(D) A public water system which uses only purchased water or groundwater not under the direct influence of surface water and serves 4,900 persons or fewer may collect all required routine distribution coliform samples on a single day if they are taken from different sites.(E) A total coliform-positive sample invalidated under this subsection does not count towards meeting the minimum routine monitoring requirements of this subsection. Unless the executive director has invalidated the sample in accordance with subsection (e) of this section, all routine coliform sample results must be used to determine compliance with subsection (b)(1) of this section and to determine treatment technique trigger and assessment requirements as described in subsection (c)(1) and (2) of this section.(F) All public water system shall collect at least the minimum number of required routine microbial samples even if the public water system has had an E. coli MCL violation under any of the conditions as described in subsection (b)(1)(A) - (D) of this section or has exceeded the coliform treatment technique triggers as described in subsection (c)(1) and (2) of this section.(G) A public water system may conduct more microbial compliance monitoring than is required by this subsection to investigate potential problems in the public water system treatment facilities and distribution system and use monitoring to assist in identifying problems. A public water system may collect more than the minimum number of required routine samples required by this subsection. A public water system that collects more than the minimum number of required routine samples required by this subsection shall include the results of these samples in calculating whether the coliform treatment technique triggers as described in subsection (c)(1) and (2) of this section have been exceeded. The additional routine sample sites shall be included in the public water system's Sample Siting Plan and collected in accordance with the Sample Siting Plan and shall be representative of water throughout the distribution system.(3) Repeat distribution coliform sampling requirements. Public water systems shall conduct repeat monitoring if one or more of the routine samples is found to contain coliform organisms.(A) If a routine distribution coliform sample is coliform-positive, the public water system must collect a set of repeat distribution coliform samples within 24 hours of being notified of the positive result, or as soon as possible if the local laboratory is closed. The executive director may extend the 24-hour limit on a case-by-case basis if the public water system has a logistical problem in collecting the repeat samples within 24 hours that is beyond the public water system's control. All public water systems shall collect no fewer than three repeat samples for each total coliform-positive sample found even if the public water system has had an E. coli MCL violation under any of the conditions as described in subsection (b)(1)(A) - (D) of this section or has exceeded the coliform treatment technique triggers as described in subsection (c)(1) and (2) of this section.(B) The public water system must collect all repeat samples on the same day, except a public water system with a single service connection may collect daily repeat samples over a three-day period until the required number of repeat samples has been collected.(C) Unless the public water system meets the provisions of clause (i) or (ii) of this subparagraph, the public water system must collect at least one repeat sample from the sampling tap where the original coliform-positive sample was taken, and at least one repeat sample at a tap within five service connections upstream and at least one repeat sample at a tap within five service connections downstream of the original sampling site. If the positive routine sample was collected at the end of the distribution system, or one service connection away from the end of the distribution system, one repeat sample must be collected at that point and the other two repeat samples must be collected within five connections upstream of that point.(i) As approved by the executive director, public water systems may propose repeat monitoring locations to the executive director that the public water system considers to be representative of a pathway for contamination of the distribution system. A public water system may elect to specify either alternative fixed locations or criteria for selecting repeat sampling sites on a situational basis in a written standard operating procedure (SOP) in its Sample Siting Plan. The public water system shall design its SOP to focus the repeat samples at locations that best verify and determine the extent of potential contamination of the distribution system area based on specific situations. The executive director may modify the SOP or require alternative monitoring locations as needed.(ii) As approved by the executive director, groundwater public water systems serving 1,000 or fewer people may propose repeat sampling locations to the executive director, in a written SOP in its Sample Siting Plan, that differentiate potential source water and distribution system contamination (e.g., by sampling at entry points to the distribution system). A groundwater public water system with a single well required to conduct triggered source water monitoring may, with written executive director approval, take one of its repeat samples at the monitoring location required for triggered source water monitoring under paragraph (4) and (4)(A) of this subsection if the public water system demonstrates to the executive director that the Sample Siting Plan remains representative of water quality in the distribution system. If approved by the executive director, the public water system may use that sample result to meet the monitoring requirements for both repeat monitoring under this paragraph and triggered source monitoring under paragraph (4) and (4)(A) of this subsection.(iii) All public water systems shall include all sample sites as required by this subparagraph and any required SOPs for any proposed sampling sites as described in clauses (i) and (ii) of this subparagraph in the public water system's Sample Siting Plan in accordance with paragraph (6) of this subsection.(D) If one or more repeat samples in the set is total coliform-positive, the public water system must collect an additional set of repeat samples in the manner specified in subparagraphs (A) - (C) of this paragraph. The additional samples must be collected within 24 hours of the public water system being notified of the positive result or as soon as possible if the local laboratory is closed. The executive director may extend the 24-hour limit on a case-by-case basis if the public water system has a logistical problem in collecting the repeat samples within 24 hours that is beyond the public water system's control. In accordance with 40 Code of Federal Regulations (CFR) §141.858(a)(1) the executive director is prohibited from waiving the requirement for a public water system to collect repeat samples as specified in subparagraphs (A) - (D) of this paragraph. The public water system must repeat this process until either one of the following occurs:(i) total coliforms are not detected in one complete set of repeat samples;(ii) a coliform treatment technique trigger as described in subsection (c)(1) and (2) of this section has been exceeded; or(iii) If a treatment technique trigger as described in subsection (c)(1) and (2) of this section is exceeded as a result of a routine sample being total coliform-positive, public water systems are required to conduct only one round of repeat monitoring for each total coliform-positive routine sample.(E) After a public water system collects a routine sample and before it learns the results of the analysis of that sample, if it collects another routine sample(s) from within five adjacent service connections of the initial sample, and the initial sample is found to contain total coliform bacteria, then the public water system may count the subsequent sample(s) as a repeat sample instead of as a routine sample.(F) A total coliform-positive sample invalidated under this subsection does not count towards meeting the minimum repeat monitoring requirements of this subsection. Unless the executive director has invalidated the sample in accordance with subsection (e) of this section, all repeat coliform sample results must be used to determine compliance with subsection (b)(1) of this section and to determine treatment technique trigger and assessment requirements as described in subsection (c)(1) and (2) of this section.(4) General requirements for raw groundwater source monitoring. Groundwater systems must comply, unless otherwise noted, with the requirements of this section. Any raw groundwater source sample required under this paragraph must be collected at a location prior to any treatment of the groundwater source and use analytical procedures and methods described in §290.119(b)(10) of this title (relating to Analytical Procedures). The public water system may collect a sample at an executive director-approved location prior to any treatment to meet the requirements of this paragraph and subparagraph (A) of this paragraph if the sample is representative of the water quality of that well.(A) Triggered source monitoring general requirements. A groundwater system must conduct triggered source water monitoring for E. coli (or other approved fecal indicator), if both of the following conditions exist.(i) The system does not provide at least 4-log treatment of viruses (as defined in §290.103(44) of this title (relating to Definitions)) before the first customer for each groundwater source; and(ii) The system is notified that a routine distribution coliform sample is positive and the sample is not invalidated under subsection (e)(1) of this section.(B) Triggered source monitoring sampling requirements. A groundwater system must collect, within 24 hours of notification of the routine distribution total coliform-positive sample, at least one raw groundwater source E. coli (or other approved fecal indicator) sample from each groundwater source in use at the time the distribution coliform-positive sample was collected. (i) The executive director may extend the 24-hour time limit on a case-by-case basis if the system cannot collect the raw groundwater source sample within 24 hours due to circumstances beyond its control. If the executive director extends the 24-hour time limit on a case-by-case basis, the public water system must collect the sample within 48 hours.(ii) If approved by the executive director and documented in the public water system's monitoring plan, public water systems with more than one groundwater source may be allowed to sample a representative groundwater source or sources. Public water systems shall modify their current monitoring plan to identify one or more groundwater sources that are representative of each distribution coliform sampling site and is intended to be used for representative source sampling.(iii) A groundwater system with one well serving 1,000 people or fewer may use one of the three required repeat samples collected from a raw groundwater source to meet both the repeat requirements of paragraph (3) of this subsection and the triggered raw source monitoring requirements in this paragraph when all of the following requirements are met:(I) the fecal indicator used is E. coli; (II) the executive director has provided written approval for the public water system to meet the monitoring requirements for both repeat monitoring under paragraph (3) of this subsection and triggered source monitoring under this paragraph and subparagraph (A) of this paragraph; and(III) the public water system's sample siting plan remains representative of water quality in the distribution system. If a required repeat sample is used to meet both requirements and found to be E. coli -positive, the public water system will have achieved an E. coli MCL as defined in subsection (b)(1)(A) - (D) of this section and corrective action will be required for the groundwater source where the sample was found to be E. coli -positive. (iv) If the executive director does not require corrective action under §290.116 of this title (relating to Groundwater Corrective Actions and Treatment Techniques) for a fecal indicator positive source water sample collected under this subparagraph that is not invalidated under subsection (e) of this section, the public water system shall collect five additional source water samples from the same source within 24 hours of being notified of the fecal indicator positive sample.(v) If a public water system takes more than one repeat sample at the monitoring location required for triggered source water monitoring, the public water system may reduce the number of additional source water samples required under clause (iv) of this subparagraph by the number of repeat samples taken at that location that were not E. coli- positive.(C) Consecutive and wholesale systems. Consecutive groundwater systems receiving drinking water from a wholesaler must notify the wholesale system(s) within 24 hours of being notified of the positive coliform distribution sample. The wholesale groundwater system(s) must comply with the following:(i) A wholesale groundwater system that receives notice of a distribution coliform sample positive from a consecutive system it serves must collect a sample from each of its groundwater sources within 24 hours of the notification and analyze each sample for the presence of E. coli (or other approved fecal indicator).(ii) If any raw source sample is E. coli (or other approved fecal indicator) positive, the wholesale groundwater system must notify all consecutive systems served by that groundwater source of the fecal indicator positive within 24 hours of being notified. The wholesale system and all consecutive systems served by that groundwater source must notify their water system customers in accordance with subsection (h)(2) of this section and shall meet the requirements of subparagraph (B)(iv) of this paragraph.(iii) If any raw source sample is E. coli positive, the wholesale groundwater system shall notify all consecutive systems served by that groundwater source of the fecal indicator source water positive within 24 hours of being notified and shall meet the requirements of subparagraph (B)(iv) of this paragraph.(D) Exceptions to the triggered source monitoring requirements. A groundwater system is not required to comply with the triggered source monitoring requirements if any of the following conditions exist.(i) The executive director determines and documents in writing, that the distribution coliform-positive sample is caused by a distribution system deficiency; or(ii) The distribution coliform-positive sample is collected at a location that meets the distribution coliform sample invalidation criteria as specified in subsection (e)(1) of this section and the replacement sample is negative for coliforms.(E) Assessment source monitoring. The executive director may require monthly source assessment raw monitoring without the presence of a positive total coliform distribution sample if well conditions exist that indicate the groundwater may be susceptible to fecal contamination. The executive director may conduct a hydrogeological sensitivity assessment to determine if the source is susceptible to fecal contamination. If requested by the executive director, groundwater systems must provide the executive director with any existing information that will enable the executive director to perform a hydrogeological sensitivity assessment. A groundwater system conducting assessment source monitoring may use a triggered source sample collected under subparagraph (A) of this paragraph to meet the assessment source monitoring requirement. A groundwater system with a groundwater source sample collected under this subparagraph or under subparagraph (A) of this paragraph that is fecal indicator positive and that is not invalidated under subsection (e)(2) of this section, including consecutive systems served by the groundwater source, shall conduct public notification under §290.122(a) of this title (relating to Public Notification). Additionally, an assessment source monitoring sample may be used as a triggered source monitoring sample if collected within 24 hours of notification of the coliform-positive distribution sample. Assessment source monitoring requirements may include:(i) Source monitoring, collected in a manner described in §290.119(b)(10) of this title, for a period of 12 months that represents each month that the system provides groundwater to the public from the raw groundwater source or such time period as specified by the executive director.(ii) Collection of samples from each well unless the system has an approved triggered source monitoring plan under subparagraph (B)(ii) of this paragraph.(5) Culture analysis. If any routine or repeat sample is total coliform-positive, that total coliform-positive medium will be analyzed to determine if E. coli are present. If E. coli are present, the public water system shall notify the executive director by the end of the day in accordance with subsection (h) of this section.(6) Sample Siting Plan requirements. All public water systems shall develop and complete a written Sample Siting Plan as described in this paragraph that identifies routine and repeat microbial sampling sites and a sample collection schedule as required by this subsection that are representative of water throughout the distribution system. The Sample Siting Plan shall include all groundwater sources and any associated sampling points necessary to meet the requirements of this subsection. The Sample Siting Plan shall be included as a part of the public water system's monitoring plan as described in §290.121 of this title. Sample Siting Plans shall be completed in a format specified by the executive director and are subject to review and revision by the executive director.(A) All public water systems shall collect routine and repeat samples according to a written Sample Siting Plan. All routine and repeat sample site locations, any required SOP, and any sampling point locations necessary to meet the requirements of this subsection shall be reflected in the written Sample Siting Plan. For community and noncommunity public water systems serving 1,000 or fewer people using only groundwater, the executive director shall evaluate during every sanitary survey (on-site inspection) the water system factors (including but not limited to pertinent water quality, compliance history, distribution system, all the components of a sanitary survey and its findings) to ensure the timeframe during the month, locations, and number of microbial compliance monitoring sample sites are adequate for producing and distributing safe drinking water.(B) All public water systems shall include any required SOP for any proposed repeat sampling sites as described in paragraph (3)(C) of this subsection in the Sample Siting Plan. As required by the executive director, the executive director may review, revise, and approve any repeat sampling proposed by public water systems under paragraph (3)(C) of this subsection.(C) The Sample Siting Plan shall include a distribution system map or series of maps which identifies distribution system valves and mains as described in §290.46(n)(2) of this title. The distribution system map shall also include the location of all routine microbial sample sites, water main sizes, entry point source locations, water storage facilities, and any pressure plane boundaries.(D) All public water systems shall update their written Sample Siting Plan and map as necessary, or as requested by the executive director, to identify the most current microbial routine and repeat sampling sites and a sample collection schedule that are representative of water throughout the public water system's distribution system.(E) All public water systems shall maintain a copy of their updated Sample Siting Plan and map on-site at the public water system for inspection purposes and at the request of the executive director, provide a copy of their Sample Siting Plan and/or map to the executive director for review and/or revision purposes. (e) Analytical and invalidation requirements for microbial contaminants. Analytical procedures shall be performed in accordance with §290.119 of this title. Testing for microbial contaminants shall be performed at a laboratory certified by the executive director. The public water system must use a certified laboratory certified for each method and associated contaminant(s) for compliance analyses in accordance with §290.119 of this title.(1) Distribution coliform sample invalidation. The executive director may invalidate a distribution total coliform-positive sample if one of the following conditions is met.(A) The executive director may invalidate a sample if the laboratory provides written notice that improper sample analysis caused the total coliform-positive result.(B) The executive director may invalidate a sample if the results of repeat samples collected, as required by this section, determine that the total coliform-positive sample resulted from a domestic or other non-distribution system plumbing problem. The executive director cannot invalidate a sample on the basis of repeat sample results unless all repeat sample(s) collected at the same tap as the original total coliform-positive sample are also total coliform-positive, and all repeat samples collected within five service connections of the original tap are total coliform-negative. Under those circumstances, the system may request that the executive director invalidate the sample. The system must provide copies of the routine positive and all repeat samples. The executive director may not invalidate a total coliform-positive sample solely on the grounds that all repeat samples are total coliform-negative or if the system has only one service connection.(C) The executive director may invalidate a sample if there are substantial grounds to believe that the total coliform-positive result is due to a circumstance or condition which does not reflect water quality in the distribution system. In this case, the system must still collect all repeat samples required by this section, and use them to determine compliance with the E. coli MCL as described in subsection (g) of this section and whether a coliform treatment technique trigger has been exceeded as described in subsection (c) of this section. The system must provide written documentation which must state the specific cause of the total coliform-positive sample, and the action the system has taken, or will take, to correct this problem. The system must obtain the written and signed approval from the executive director before the sample can be invalidated under this condition. The executive director may not invalidate a total coliform-positive sample solely on the grounds that all repeat samples are total coliform-negative.(D) The executive director may invalidate a sample if the laboratory provides written notice that the sample was unsuitable for analysis and the laboratory invalidated the sample based on the requirements of 40 CFR §141.853(c)(2). When the sample is invalidated under this condition, the system must collect another sample from the same location as the original sample within 24 hours of being notified, and have it analyzed for the presence of total coliforms. The system must continue to re-sample within 24 hours and have the samples analyzed until it obtains a valid result. The executive director may waive the 24-hour time limit on a case-by-case basis. Alternatively, the executive director may implement criteria for waiving the 24-hour sampling time limit to use in lieu of case-by-case extension.(E) If a sample is invalidated by the laboratory, the public water system must collect another sample from the same location as the original sample within 24 hours of being notified, or as soon as possible if the laboratory is closed, and have it analyzed for the presence of total coliform. The system must continue to resample within 24 hours and have the samples analyzed until it obtains a valid result.(2) A groundwater system may obtain invalidation of a fecal indicator positive groundwater source sample if the conditions of subparagraphs (A) and (B) of this paragraph apply. If the executive director invalidates a fecal indicator positive groundwater source sample, the system must collect another source sample as specified in subsection (d)(4) of this section within 24 hours of being notified of the invalidation.(A) Notice from the laboratory must document that improper sample analysis occurred. If a laboratory invalidates a sample, the system must collect another sample from the same location as the original sample within 24 hours of being notified of the invalidated sample, and have it analyzed for the presence of E. coli (or other approved fecal indicator). The public water system must continue to re-sample within 24 hours and have the samples analyzed until it obtains a valid result. If approved by the executive director, the 24-hour time limit may be extended.(B) The executive director may invalidate the sample if the public water system provides written documentation that there is substantial evidence that a fecal indicator positive groundwater source sample is not related to source water quality. If the executive director invalidates a sample, the public water system must collect another sample from the same location as the original sample within 24 hours of being notified of the invalidated sample, and have it analyzed for the presence of E. coli (or other approved fecal indicator).(3) Culture analysis. If any distribution system coliform sample is total coliform-positive, that total coliform-positive medium will be analyzed to determine if E. coli are present. If E. coli are present, the public water system shall notify the executive director by the end of the day in accordance with subsection (h) of this section. If any raw groundwater source sample is used to meet the repeat requirements of subsection (d)(3)(C)(ii) and (4)(B)(iii) then it must be analyzed to determine if E. coli are present.(f) Reporting requirements for microbial contaminants. The owner or operator of a public water system must ensure the executive director is provided with a copy of the results of any test, measurement, or analysis required by this subsection. The copies must be submitted within the first ten days following the month in which the result is received by the public water system, or the first ten days following the end of the required monitoring period as provided by this subsection, whichever occurs first. The copies must be mailed to the Water Supply Division, MC 155, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087.(g) Compliance determination for microbial contaminants. Compliance with the requirements of this section shall be determined using the following criteria each month that the system is in operation.(1) A public water system commits an E. coli MCL violation if any of the following conditions occur:(A) The public water system has an E. coli -positive repeat samples following a total coliform-positive routine sample;(B) The public water system has a total coliform-positive repeat sample following an E. coli -positive routine sample;(C) The public water system fails to take all required repeat samples following an E. coli -positive routine sample; or(D) The public water system fails to test for E. coli when any repeat sample tests positive for total coliform.(2) If all repeat samples taken for triggered source water monitoring are E. coli -negative and a repeat sample taken at a monitoring location other than the one required for triggered source water monitoring is E. coli -positive, the public water system has violated the E. coli MCL, but is not required to comply with subsection (d)(4)(B)(iv) of this section. If a public water system takes more than one repeat sample at the monitoring location required for triggered source water monitoring under subsection (d)(4) of this section, and more than one repeat sample is E. coli -positive, the public water system has violated the E. coli MCL and shall also comply with the treatment technique and corrective action requirements as described in §290.116 of this title.(3) A public groundwater system that is required to collect raw source samples is required to conduct corrective action as described in §290.116 of this title and is required to provide public notification in accordance with §290.122(a) of this title if a source sample is confirmed positive for E. coli or other approved fecal indicator.(4) A public water system that fails to collect every required routine sample in a compliance period and/or to submit the analytical results to the executive director commits a monitoring violation.(5) A public water system that fails to analyze for E. coli following a total coliform-positive routine sample commits a monitoring violation.(6) A public water system that fails to monitor in accordance with the requirements of subsection (d)(4) of this section commits a monitoring violation and must provide public notification in accordance with §290.122 of this title.(7) A public water system that fails to report the results of the monitoring tests required by this section commits a reporting violation.(8) A public water system that fails to do a required public notice or certify that notification has been performed commits a public notice reporting violation.(9) The results of all routine and repeat distribution coliform samples or groundwater source samples not invalidated by the executive director shall be included in determining compliance with the E. coli MCL as described in paragraph (1)(A) - (D) of this subsection and whether a coliform treatment technique trigger has been exceeded as described in subsection (c) of this section.(10) The results of all routine and repeat distribution coliform samples or groundwater source samples invalidated by the executive director shall not be included in determining compliance with the E. coli MCL as described in paragraph (1)(A) - (D) of this subsection and whether a coliform treatment technique trigger has been exceeded as described in subsection (c) of this section.(11) Special purpose samples, such as those taken to determine whether disinfection practices are sufficient following pipe placement, replacement, or repair, shall not be used to determine compliance with the MCL for microbiological contaminants. Special purpose samples shall not be used to determine whether the coliform treatment technique trigger has been exceeded as described in subsection (c) of this section. Coliform samples taken in accordance with subsection (d)(3) of this section and that are not invalidated under subsection (e) of this section are not considered special purpose samples.(12) All seasonal public water systems shall complete executive director-approved start-up procedures and certification and maintain a copy of the start-up procedures and certification on-site at the public water system for inspection purposes. A seasonal system must certify, prior to serving water to the public, that it has complied with the executive director-approved start-up procedures. At the executive director's request, seasonal public water systems shall submit a copy of the start-up procedures and certification to the executive director for review purposes. Failure by a seasonal public water system to complete executive director-approved start-up procedures prior to serving water to the public is a treatment technique violation. Failure by a seasonal public water system to maintain or submit certification of completion of executive director-approved start-up procedures is a reporting violation.(13) A public water system commits a treatment technique violation when a seasonal public water system fails to complete an executive director-approved start-up procedure prior to serving water to the public.(14) A public water system commits a treatment technique violation when a public water system exceeds a treatment technique trigger specified in subsection (c) of this section and then fails to conduct the required assessment or corrective actions within the timeframe specified in subsection (c) of this section.(15) A public water system required to conduct an assessment under the provisions of subsection (c) of this section shall submit the assessment report to the executive director within 30 days. The public water system shall notify the executive director in accordance with subsection (c) of this section when scheduled corrective actions are complete and for corrective actions not completed by the time of submission of the assessment form. For corrective actions not completed by the time of submission of the assessment form to the executive director, the public water system shall complete corrective actions in compliance with a timetable approved by the executive director in consultation with the public water system. The assessment may also indicate that no sanitary defects were identified.(16) A public water system that fails to notify the executive director before the end of the day in accordance with subsection (h)(3) of this section commits a reporting violation.(h) Public notification for microbial contaminants. A public water system that is out of compliance with the requirements described in this section must notify the public using the procedures described in §290.122 of this title for microbial contamination.(1) A public water system that commits an acute MCL violation for microbial contaminants must notify the public water system customers in accordance with the boil water notice requirements of §290.46(q) of this title and the public notice requirements of §290.122(a) of this title.(2) A public groundwater system that receives an E. coli (or other approved fecal indicator) positive source sample that has not been invalidated by the executive director, or a notice of an E. coli (or other approved fecal indicator) positive source sample from a wholesale system, including consecutive systems, must notify the public water system customers within 24-hours in accordance with the requirements of §290.122(a) of this title and include notice in the next Consumer Confidence Report for community public water systems or provide as a special notice for noncommunity systems in accordance with §290.272(g)(7) of this title (relating to Content of the Report) for community public water systems and §290.116(f)(2) of this title for noncommunity public water systems. Consecutive systems must issue public notice in accordance with §290.122(g) of this title. The public water system must continue to notify the public annually until the fecal contamination in the source water is determined by the executive director to be corrected as specified under §290.116 of this title.(3) A public water system that has E. coli (or other approved fecal indicator) present must notify the executive director by the end of the day when the public water system is notified of the test result.(4) A public water system which commits an MCL violation must report the violation to the executive director immediately after it learns of the violation, but no later than the end of the next business day, and notify the public in accordance with §290.122(b) of this title.(5) A public water system which commits an E. coli MCL violation shall report the violation to the executive director immediately after it learns of the violation, but no later than the end of the day, and notify the public in accordance with §290.122(a) of this title.(6) A public water system which has failed to comply with a coliform monitoring requirement must report the monitoring violation to the executive director within ten days after the system discovers the violation and notify the public in accordance with §290.122(c) of this title.(7) A public water system that has committed a treatment technique trigger and assessment requirement for coliforms in subsection (c)(1) and (2) of this section and commits a treatment technique violation as described in subsection (g)(15) of this section shall report the violation to the executive director no later than the end of the next business day after it learns of the violation, and notify the public in accordance with §290.122(b) of this title.(8) A public water system that commits a treatment technique violation for failure to complete and certify seasonal system start-up procedures as described in subsection (g)(10) and (11) of this section shall report the violation to the executive director no later than the end of the next business day after it learns of the violation, and notify the public in accordance with §290.122(b) of this title. In the notification in accordance with §290.122(b) of this title, if a seasonal system fails to monitor for total coliforms or E. coli prior to serving water to the public, it must include the following language: We are required to monitor your drinking water for specific contaminants on a regular basis. Results of regular monitoring are an indicator of whether or not your drinking water meets health standards. During {COMPLIANCE PERIOD}, we "did not monitor or test" or "did not complete all monitoring or testing" for {CONTAMINANT(S)}, and therefore cannot be sure of the quality of your drinking water during that time.(i) The executive director, pursuant to 40 CFR §141.63(e), recognizes the following as the best technology, treatment techniques, or other means available for achieving compliance with the MCL for E. coli as described in subsection (b)(1)(A) - (D) of this section as follows:(1) protection of wells from fecal contamination by appropriate placement and construction;(2) maintenance of a disinfectant residual throughout the distribution system;(3) proper maintenance of the distribution system including appropriate pipe replacement and repair procedures, main flushing programs, proper operation and maintenance of storage tanks and reservoirs, cross-connection control, and continual maintenance of positive water pressure in all parts of the distribution system;(4) filtration and disinfection of surface water, as described in this chapter, or disinfection of groundwater, as described in chapter, using strong oxidants such as chlorine, chlorine dioxide, or ozone;(5) for systems using groundwater, development and implementation of a Wellhead Protection Program, as directed by the executive director, and in accordance with the federal Safe Drinking Water Act, United States Code, §1428; or(6) the executive director may require additional best technology, treatment techniques, or other means available for achieving compliance with the MCL for E. coli as described in subsection (g)(1) of this section.</content><note type="source"><p>Source Note: The provisions of this §290.109 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective November 8, 2012, 37 TexReg 8849; amended to be effective September 12, 2013, 38 TexReg 5880; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.110"><num value="290.110">§290.110</num><heading>Disinfectant Residuals</heading><content>(a) Applicability. All public water systems shall properly disinfect water before it is distributed to any customer and shall maintain acceptable disinfectant residuals within the distribution system.(b) Minimum and maximum acceptable disinfectant concentrations. All public water systems shall provide the minimum levels of disinfectants in accordance with the provisions of this section. Public water systems shall not exceed the maximum residual disinfectant levels (MRDLs) provided in this section.(1) The disinfection process used by public water systems must ensure that water has been adequately disinfected before it enters the distribution system.(A) The disinfection process used by public water systems treating surface water sources or groundwater sources that are under the direct influence of surface water must meet the requirements of §290.111(d) of this title (relating to Surface Water Treatment).(B) The executive director may require the disinfection process used by public water systems treating groundwater sources that are not under the direct influence of surface water to meet the requirements of §290.116 of this title (relating to Groundwater Corrective Actions and Treatment Techniques).(C) The disinfection process at other types of treatment plants shall provide the level of disinfection required by the executive director.(2) The residual disinfectant concentration in the water entering the distribution system shall be at least 0.2 milligram per liter (mg/L) free chlorine or 0.5 mg/L chloramine (measured as total chlorine).(3) The chlorine dioxide residual of the water entering the distribution system shall not exceed an MRDL of 0.8 mg/L.(4) The residual disinfectant concentration in the water within the distribution system shall be at least 0.2 mg/L free chlorine or 0.5 mg/L chloramine (measured as total chlorine).(5) The running annual average of the free chlorine or chloramine residual (measured as total chlorine) of the water within the distribution system shall not exceed an MRDL of 4.0 mg/L.(c) Monitoring requirements. All public water systems shall monitor the performance of the disinfection facilities to ensure that appropriate disinfectant levels are maintained. All monitoring conducted pursuant to the requirements of this section must be conducted at sites designated in the public water system's monitoring plan.(1) Entry point compliance monitoring for surface water and groundwater under the direct influence of surface water. Public water systems that treat surface water or groundwater under the direct influence of surface water must verify that they meet the disinfection requirements of subsection (b)(2) of this section.(A) Public water systems that treat surface water or groundwater under the direct influence of surface water and sell treated water on a wholesale basis or serve more than 3,300 people must continuously monitor and record the disinfectant residual of the water at each entry point. If there is a failure in the continuous monitoring equipment, grab sampling every four hours may be conducted in lieu of continuous monitoring, but for no more than five working days following the failure of the equipment.(B) Public water systems that treat surface water or groundwater under the direct influence of surface water, serve 3,300 or fewer people and do not sell treated water on a wholesale basis must monitor and record the disinfectant residual of the water at each entry point with either continuous monitors or grab samples.(i) If a system uses grab samples, the samples must be collected on an ongoing basis at the frequency prescribed in the following table.Attached Graphic(ii) The grab samples cannot be taken at the same time and the sampling interval is subject to the executive director's review and approval.(iii) Treatment plants that use grab samples and fail to detect an appropriate disinfectant residual must repeat the test at four-hour or shorter intervals until compliance has been reestablished. (C) Continuous monitors must record the disinfectant residual of the water every 30 minutes.(2) Entry point compliance monitoring for groundwater and purchased water. Public water systems that treat groundwater or that purchase and resell treated water must, upon the request of the executive director, verify that they meet the disinfection requirements of subsection (b)(2) of this section.(A) A public water system that uses free chlorine must measure free chlorine.(B) A public water system that has a chloramine residual must measure total chlorine.(3) Chlorine dioxide compliance monitoring. Each treatment plant using chlorine dioxide must monitor and record the chlorine dioxide residual of the water entering the distribution system at least once each day. If the chlorine dioxide residual in the water entering the distribution system exceeds the MRDL contained in subsection (b)(3) of this section, the treatment plant must conduct additional tests.(A) If the public water system does not have additional chlorination facilities in the distribution system, it must conduct three additional tests at the service connection nearest the treatment plant where an elevated chlorine dioxide residual was detected. The first additional test must be conducted within two hours after detecting an elevated chlorine dioxide residual at the entry point to the distribution system. The two subsequent tests must be conducted at six-hour to eight-hour intervals thereafter.(B) If the public water system has additional chlorination facilities in the distribution system, it must conduct an additional test at the service connection nearest the treatment plant where an elevated chlorine dioxide residual was detected, an additional test at the first service connection after the point where the water is rechlorinated, and an additional test at a location in the far reaches of the distribution system. The additional test at the location nearest the treatment plant must be conducted within two hours after detecting an elevated chlorine dioxide residual at the entry point to the distribution system. The two other tests must be conducted at six-hour to eight-hour intervals thereafter.(4) Distribution system compliance monitoring. All public water systems shall monitor the disinfectant residual at various locations throughout the distribution system.(A) Public water systems that use groundwater or purchased water sources only and serve fewer than 250 connections and fewer than 750 people daily, must monitor the disinfectant residual at representative locations in the distribution system at least once every seven days.(B) Public water systems that serve at least 250 connections or at least 750 people daily, and use only groundwater or purchased water sources must monitor the disinfectant residual at representative locations in the distribution system at least once per day.(C) Public water systems using surface water sources or groundwater under the direct influence of surface water must monitor the disinfectant residual tests at least once per day at representative locations in the distribution system.(D) All public water systems must monitor the residual disinfectant concentration at the same time and at the same sampling site a bacteriological sample is collected, as specified in §290.109 of this title (relating to Microbial Contaminants) in addition to the residual disinfectant concentration monitoring requirements as described in this subsection and chapter.(E) All public water systems with a chloramine residual must monitor the total chlorine residual downstream of any chlorine and ammonia injection points, in conjunction with the chloramine effectiveness sampling in paragraph (5)(C) of this subsection, in the distribution system weekly and whenever the chemical dose is changed.(5) Chloramine effectiveness sampling. Public water systems with a chloramine residual shall monitor to ensure that monochloramine is the prevailing chloramine species and that nitrification is controlled. Sample sites and procedures used for chloramine effectiveness sampling must be documented in the system's nitrification action plan (NAP) required by §290.46(z) of this title (relating to Minimum Acceptable Operating Practices for Public Drinking Water Systems). Sample results determined by monitoring required under this paragraph will not be used to determine compliance with the maximum contaminant levels, MRDLs, action levels, or treatment techniques of this subchapter.(A) Source water. Public water systems must monitor source water (including raw and treated purchased water) to establish baseline ammonia, nitrite, and nitrate levels (all as nitrogen) at least once to determine the availability of ammonia for chloramine formation and to provide a reference for downstream nitrite and nitrate levels that may indicate nitrification. If any source has more than 0.5 mg/L free ammonia (as nitrogen) in the initial sample, then raw water ammonia (as nitrogen) shall be monitored monthly for six months to determine the baseline free ammonia level.(B) Water entering distribution system. All public water systems that have chloramines present shall perform sampling to represent the water entering the distribution system.(i) Total chlorine, free ammonia (as nitrogen) and monochloramine shall be monitored weekly at all entry points to the distribution system or at a location before the first customer.(ii) Nitrite and nitrate (as nitrogen) levels at the first customer shall be monitored monthly for at least six months to determine baseline nitrite and nitrate levels in the water prior to consumption. Nitrite and nitrate samples collected at the first customer will not be used for compliance with §290.106 of this title (relating to Inorganic Contaminants).(iii) Nitrite and nitrate (as nitrogen) shall be monitored quarterly at the first customer after establishing the baseline. Nitrite and nitrate samples collected at entry points for compliance with §290.106 of this title may be used for these quarterly samples.(C) Treatment sampling. Public water systems that inject chlorine at any location to form chloramines or to convert from chloramines to free chlorine must monitor to ensure that chemical addition is effective and the proper chlorine to ammonia (as nitrogen) ratio is achieved. Samples must be collected and analyzed weekly and whenever the chemical dosage is changed.(i) Sampling must be performed upstream of the chlorine or ammonia chemical injection point, whichever is furthest upstream.(ii) Sampling must be performed downstream of all the chlorine and ammonia chemical injection points.(iii) The residual of the chemical injected upstream must be determined to properly dose the downstream chemical where sample taps are present or required under §290.42(e)(7)(C)(ii) of this title (relating to Water Treatment).(iv) The total chlorine, ammonia (as nitrogen), and monochloramine residuals must all be monitored if the treatment occurs before the entry point.(v) The ammonia (as nitrogen) and monochloramine residuals must all be monitored if the treatment occurs in the distribution system. The monitoring must occur at the same time as a compliance sampling required under paragraph (4)(E) of this subsection.(D) Distribution system. Public water systems that distribute water and have a chloramine residual must ensure the efficacy of disinfection within the distribution system.(i) Monochloramine and free ammonia (as nitrogen) must be monitored weekly at the same time as a compliance sample required under paragraph (4) of this subsection.(ii) Nitrite and nitrate (as nitrogen) must be monitored quarterly.(d) Analytical requirements. All monitoring required by paragraphs (1) and (2) of this subsection must be conducted at a facility approved by the executive director and using methods that conform to the requirements of §290.119 of this title (relating to Analytical Procedures). All monitoring for chloramine effectiveness required by paragraphs (3) - (6) of this subsection must be analyzed to the accuracy provided therein.(1) The free chlorine or chloramine residual (measured as total chlorine) must be measured to a minimum accuracy of plus or minus 0.1 mg/L. Color comparators may be used for distribution system samples only. When used, a color comparator must have current reagents, an unfaded and clear color comparator, a sample cell that is not discolored or stained, and must be properly stored in a cool, dark location where it is not subjected to conditions that would result in staining. The color comparator must be used in the correct range. If a sample reads at the top of the range, the sample must be diluted with chlorine-free water, then a reading taken and the resulting residual calculated.(2) The chlorine dioxide residual must be measured to a minimum accuracy of plus or minus 0.05 mg/L using a method that conforms to the requirements of §290.119 of this title. The DPD-glycine method using a colorimeter or spectrophotometer may be utilized only with the written permission of the executive director.(3) The free ammonia level must be measured to a minimum accuracy of plus or minus 0.1 mg/L.(4) The monochloramine level must be measured to a minimum accuracy of plus or minus 0.15 mg/L using a procedure that has the ability to distinguish between monochloramine and other forms of chloramine.(5) The nitrate (as nitrogen) level must be measured to a minimum accuracy of plus or minus 0.1 mg/L.(6) The nitrite (as nitrogen) level must be measured to a minimum accuracy of plus or minus 0.01 mg/L.(e) Reporting requirements. Any owner or operator of a public water system subject to the provisions of this section is required to report to the executive director the results of any test, measurement, or analysis required by this section.(1) Public water systems exceeding the MRDL for chlorine dioxide in subsection (b)(3) of this section must report the exceedance to the executive director within 24 hours of the event.(2) Public water systems that use surface water sources or groundwater sources under the direct influence of surface water must submit a Surface Water Monthly Operating Report (commission Form 0102C), a Surface Water Monthly Operating Report (commission Form 0102D) for alternative technologies, or a Surface Water Monthly Operational Report for Plants That Do Not Have a Turbidimeter on Each Filter (commission Form 0103) each month.(3) Public water systems that use chlorine dioxide must submit a Chlorine Dioxide Monthly Operating Report (commission Form 0690) each month.(4) Public water systems that use purchased water or groundwater sources only must complete a Disinfection Level Quarterly Operating Report (commission Form 20067) each quarter.(A) Community and nontransient, noncommunity public water systems must submit the Disinfection Level Quarterly Operating Report each quarter, by the tenth day of the month following the end of the quarter.(B) Transient, noncommunity public water systems must retain the Disinfection Level Quarterly Operating Reports and must provide a copy if requested by the executive director.(5) Systems that use chloramines must retain their NAP required under §290.46(z) of this title and must provide a copy upon request by the executive director.(6) Monthly and quarterly reports required by this section must be submitted to the Water Supply Division, MC 155, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 by the tenth day of the month following the end of the reporting period.(f) Compliance determinations. Compliance with the requirements of this section shall be determined using the following criteria.(1) All samples used for compliance must be obtained at sampling sites designated in the monitoring plan.(A) All samples collected at sites designated in the monitoring plan as microbiological and disinfectant residual monitoring sites shall be included in the compliance determination calculations.(B) Samples collected at sites in the distribution system not designated in the monitoring plan shall not be included in the compliance determination calculations.(2) A public water system that fails to conduct the monitoring tests required by this section commits a monitoring violation. (3) A public water system that fails to report the results of the monitoring tests required by this section commits a reporting violation.(4) A public water system that uses surface water sources or groundwater sources under the direct influence of surface water and fails to meet the requirements of subsection (b)(2) of this section for a period longer than four consecutive hours commits a nonacute treatment technique violation. A public water system that fails to conduct the additional testing required by subsection (c)(1)(B)(iii) of this section also commits a nonacute treatment technique violation.(5) A public water system that uses chlorine dioxide and exceeds the level specified in subsection (b)(3) of this section violates the MRDL for chlorine dioxide.(A) If a public water system violates the MRDL for chlorine dioxide and any of the three additional distribution samples exceeds the MRDL, the system commits an acute MRDL violation for chlorine dioxide.(B) If a public water system violates the MRDL for chlorine dioxide and fails to collect each of the three additional distribution samples required by subsection (c)(3) of this section, the system commits an acute MRDL violation for chlorine dioxide.(C) If a public water system violates the MRDL for chlorine dioxide but none of the three additional distribution samples violates the MRDL, the system commits a nonacute MRDL violation for chlorine dioxide.(6) A public water system that fails to meet the requirements of subsection (b)(4) of this section, in more than 5.0% of the samples collected each month, for any two consecutive months, commits a nonacute treatment technique violation. Specifically, the system commits a nonacute violation if the value "V" in the following formula exceeds 5.0% per month for any two consecutive months:Attached Graphic(7) A public water system violates the MRDL for chlorine or chloramine (measured as total chlorine) if, at the end of any quarter, the running annual average of monthly averages exceeds the level specified in subsection (b)(5) of this section.(8) Public water systems shall increase residual disinfectant levels of free chlorine, or chloramines measured as total chlorine, (but not chlorine dioxide) in the distribution system to a level and for a time necessary to protect public health to address specific microbiological contamination problems caused by circumstances such as distribution line breaks, storm runoff events, source water contamination, or cross-connections. Public water systems shall consult with the executive director upon increasing residual disinfectant levels in the distribution system in order to maintain compliance with the MRDLs listed in subsection (b) of this section.(9) If a public water system's failure to monitor makes it impossible to determine compliance with the MRDL for chlorine or chloramines (measured as total chlorine), the system commits an MRDL violation for the entire period covered by the annual average.(10) A public water system that fails to issue a required public notice or certify that it has issued that notice commits a violation.(g) Public notification requirements. The owner or operator of a public water system that violates the requirements of this section must notify the executive director and the people served by the system.(1) A public water system that fails to meet the requirements of subsection (b)(3) of this section, shall notify the executive director within 24 hours of the event and the customers in accordance with the requirements of §290.122 of this title (relating to Public Notification).(A) A public water system that has an acute violation of the MRDL for chlorine dioxide must notify the customers in accordance with the requirements of §290.122(a) of this title.(B) A public water system that has a non-acute violation of the MRDL for chlorine dioxide must notify the customers in accordance with the requirements of §290.122(b) of this title.(2) A public water system that uses surface water sources or groundwater sources under the direct influence of surface water and fails to meet the minimum disinfection requirements of subsection (b)(2) of this section shall notify the executive director by the end of the next business day and the customers in accordance with the requirements of §290.122(b) of this title.(3) A public water system that fails to meet the requirements of subsection (b)(4) of this section in more than 5.0% of the samples collected each month for two consecutive months must notify its customers in accordance with the requirements of §290.122(b) of this title.(4) A public water system that fails to meet the requirements of subsection (b)(5) of this section shall notify the executive director by the end of the next business day and the customers in accordance with the requirements of §290.122(b) of this title. (5) A public water system which fails to conduct the monitoring required by subsection (c)(1) - (4) of this section must notify its customers of the violation in accordance with the requirements of §290.122(c) of this title.(6) A public water system that uses chloramines shall notify their retail and wholesale customers of the use of chloramines.(A) This notification must contain the exact wording included in Appendix H of §290.47 of this title (relating to Appendices).(B) Prior to initially providing the chloraminated water to its existing customers, the water system must provide notification by mail or direct delivery at least 14 days before the change.(C) Additionally, the notification must be provided to the news media, hospitals, renal disease facilities, dialysis clinics, physicians, local health departments, and entities which maintain live fish directly by letter, e-mail, or hand delivery.(D) New customers must also be notified before they begin receiving water from the water system.(E) Where appropriate, the notice must be multilingual.</content><note type="source"><p>Source Note: The provisions of this §290.110 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective November 8, 2012, 37 TexReg 8849; amended to be effective July 30, 2015, 40 TexReg 4769; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.111"><num value="290.111">§290.111</num><heading>Surface Water Treatment</heading><content>(a) Applicability. A public water system that treats surface water or groundwater under the direct influence of surface water must comply with the requirements of this section.(1) A public water system that treats surface water must comply with the requirements of this section beginning on the effective date of the rule.(2) A public water system that treats groundwater under the direct influence of surface water must comply with the requirements of this section beginning on a date specified by the executive director. This compliance date shall not exceed 18 months from the date that the executive director first notifies the system that the groundwater source is under the direct influence of surface water.(3) A public water system that treats both surface water and groundwater under the direct influence of surface water must meet the compliance date in paragraph (1) of this subsection at plants that treat any surface water and must meet the compliance date in paragraph (2) of this subsection at plants that treat only groundwater under the direct influence of surface water.(b) Raw surface water monitoring. A public water system that treats surface water or groundwater under the direct influence of surface water must conduct at least two rounds of special raw surface water monitoring at each surface water intake and at each well producing groundwater under the direct influence of surface water for the purpose of establishing minimum treatment technique requirements for Cryptosporidium and other pathogens. The executive director may waive the raw surface water monitoring requirements for an intake or a well if the combination of pathogen removal and disinfection processes used to treat the raw water achieves at least a 5.5-log total removal and inactivation of Cryptosporidium parvum. (1) Raw water monitoring plans. A system must submit a proposed raw surface water monitoring plan when requested by the executive director. The proposed plan must identify all of the system's intakes and wells; provide the location of each raw water sampling point; include the parameters that will be monitored and the frequency and dates that samples will be collected; and specify the laboratories that will perform the analyses. Raw surface water monitoring must be conducted in accordance with a monitoring plan that has been approved by the executive director. The executive director shall not approve a raw surface water monitoring plan unless it indicates that the system will meet the requirements of 40 Code of Federal Regulations (CFR) §§141.701 - 141.707.(2) Sampling location. A system must collect each raw water sample at a location approved by the executive director. Samples must be collected from the raw water line prior to any treatment and before the first point where a recycled stream is returned to the treatment process.(3) Sampling parameters and frequency. A system must collect raw water samples at a frequency approved by the executive director.(A) Unless the executive director approves an alternate sampling regimen, a system must monitor turbidity, Escherichia coli (E. coli), and Cryptosporidium levels in the raw water at least once each month for a period of not less than 24 consecutive months if the system:(i) serves at least 10,000 people; or(ii) is part of combined distribution system in which one or more systems serve at least 10,000 people and the system with the well or intake regularly provides water to another public water supply.(B) A system that is not required to monitor under subparagraph (A) of this paragraph must either monitor in accordance with the requirements of subparagraph (A) of this paragraph or monitor E. coli levels in their raw water at least once every two weeks for a period of not less than 12 consecutive months. A system that does not initially monitor for Cryptosporidium and has elevated E. coli levels must conduct additional raw water monitoring.(i) A system must conduct additional monitoring if the average E. coli level exceeds 100 colony-forming units per 100 milliliters in the raw water produced by a surface water intake located on a river or flowing stream or the raw water from a well producing groundwater under the direct influence of surface water located closest to a river or flowing stream.(ii) A system must conduct additional monitoring if the average E. coli level exceeds 100 colony-forming units per 100 milliliters in the raw water from a surface water intake not located on a river or flowing stream or the raw water produced by a well producing groundwater under the direct influence of surface water not located on a river or flowing stream.(iii) A system that must conduct additional monitoring must monitor Cryptosporidium levels in the raw water at least twice each month for a period of not less than 12 consecutive months, or at least once each month for a period of not less than 24 consecutive months.(C) The executive director may approve an alternate sampling frequency for intakes and wells that operate only part of the year.(4) Sampling schedule and dates. A system must collect raw water samples in accordance with a schedule approved by the executive director.(A) Except as provided in subparagraph (B) of this paragraph, a system must begin each round of raw source water monitoring no later than the date shown in the following table titled "Raw Source Water Monitoring Schedule."Attached Graphic(B) If a system installs a new well or intake after the date the first round of raw source water monitoring must begin, the system must:(i) submit a proposed monitoring schedule for the first round of special raw surface water monitoring no later than three months after first placing the new source in operation; and(ii) begin the second round of special raw surface water monitoring no later than six years after initial bin classification. (C) A system must collect a raw water sample no sooner than two days before the date approved by the executive director and no later than two days after the approved date, unless an extreme condition or situation exists that poses a danger to the sample collector. (D) A system which is unable to collect a sample within this five-day period must collect the sample as close as possible to the approved date and must notify the executive director in writing why the sample was not collected on the approved date.(5) Replacement samples. If, for any reason, the laboratory is unable to report a valid analytical result for a scheduled sample, the system must submit a replacement sample on a date approved by the executive director.(6) Analytical requirements. Raw water samples collected pursuant to this subsection must be analyzed at an United States Environmental Protection Agency (EPA) approved or a Texas Commission on Environmental Quality accredited laboratory.(A) Cryptosporidium samples must be analyzed using one of the methods approved in 40 CFR §141.704(a) and by a laboratory that is approved under EPA's Laboratory Quality Assurance Evaluation Program for Analysis of Cryptosporidium in Water.(B) E. coli samples must be analyzed using one of the methods approved in 40 CFR §136.3(a) for the enumeration of E. coli in source water and by a laboratory that is accredited by the executive director.(i) Systems must ensure that samples are maintained between 0 degrees Celsius and 10 degrees Celsius during storage and transportation to the laboratory.(ii) The time between sample collection and the initiation of the analysis may not exceed 30 hours without the prior approval of the executive director.(iii) The executive director may allow up to 48 hours between sample collection and the initiation of the analysis if the analysis is conducted by the Colilert reagent version of Standard Method 9223B.(C) Turbidity samples must be analyzed using a method and at a laboratory approved by the executive director.(7) Reporting requirements for raw surface water sample results. The owner or operator of a public water system must provide to the executive director with a copy of the results of any test, measurement, or analysis required by this subsection.(A) Results must be submitted using the Raw Surface Water Sampling Report (commission Form 20358) or in another format that is approved by the executive director and contains the information required by 40 CFR §141.706(e).(i) If the sample was not collected within the five-day window described in paragraph (4)(C) of this subsection, the result must be accompanied by the information required in paragraph (4)(D) of this subsection.(ii) If the laboratory report indicates that a valid analytical result could not be reported, the laboratory report must be accompanied by a request to collect a replacement sample.(B) The results must be submitted within ten days of their receipt by the public water system and no later than ten days after the end of the first month following the month that the sample was collected.(C) The results and any additional information must be mailed to the Water Supply Division, MC 155, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087.(c) Treatment technique requirements. A system that treats surface water or groundwater under the direct influence of surface water must meet minimum treatment technique requirements before the water reaches the entry point to the distribution system.(1) The combination of pathogen removal and disinfection processes used by a public water system must achieve at least a 4.0-log removal/inactivation of viruses.(2) The combination of pathogen removal and disinfection processes used by a public water system must achieve at least a 3.0-log removal/inactivation of Giardia lamblia. (3) A public water system that is required by subsection (b) of this section to conduct raw surface water monitoring must comply with the requirements of this paragraph.(A) The average Cryptosporidium level and bin classification shall be determined in accordance with the requirements established by 40 CFR §141.710.(i) For systems that collect a total of at least 48 Cryptosporidium samples, the average concentration is equal to the arithmetic mean of all sample concentrations.(ii) For systems that collect a total of at least 24 samples, but not more than 47 Cryptosporidium samples, the average concentration is equal to the highest arithmetic mean of all sample concentrations in any 12 consecutive months during which Cryptosporidium samples were collected.(iii) For systems that serve fewer than 10,000 people and monitor for Cryptosporidium for only one year (i.e., collect 24 samples in 12 months), the average concentration is equal to the arithmetic mean of all sample concentrations. (iv) For systems with plants operating only part of the year that monitor fewer than 12 months per year under 40 CFR §141.701(e), the bin concentration is equal to the highest arithmetic mean of all sample concentrations during any year of Cryptosporidium monitoring.(v) If the monthly Cryptosporidium sampling frequency varies, systems must first calculate a monthly average for each month of monitoring. Systems must then use these monthly average concentrations, rather than individual sample concentrations, in the applicable calculation for bin classification in paragraphs.(B) Unless otherwise specified in this paragraph, the combination of pathogen removal and disinfection processes must achieve the removal/inactivation of Cryptosporidium parvum specified in the following table titled "Treatment Technique Requirements for Cryptosporidium," beginning 36 months after being assigned a bin classification by the executive director.Attached Graphic(i) A system that conducts the first round of special raw surface water monitoring according to the schedule contained in subsection (b)(4)(A) of this section must comply with the requirements of this paragraph no later than the date shown in the following table, titled "Compliance Date for Existing Sources."Attached Graphic(ii) A system that conducts the first round of special raw surface water monitoring according to the schedule contained in subsection (b)(4)(B)(i) of this section must comply with the requirements of this paragraph no later than six years after beginning the first round of monitoring on the new source.(iii) The executive director may allow a system making capital improvements an additional two years to comply with the treatment requirement of this paragraph.(C) A system that has been assigned to Bin 3 or Bin 4 must achieve at least 1.0-log removal/inactivation of Cryptosporidium using one or a combination of the following: bag filters, cartridge filters, chlorine dioxide, membranes, ozone, or ultraviolet light (UV).(D) Prior to the effective date of subparagraph (B) of this paragraph, the combination of disinfection and filtration processes used by a public water system to treat for Cryptosporidium must achieve at least a 2.0-log removal/inactivation of Cryptosporidium parvum. (4) The combination of disinfection and filtration processes at plants that do not monitor each source in accordance with the requirements of subsection (b) of this section must achieve at least a 5.5-log removal/inactivation of Cryptosporidium parvum. (5) The executive director may require additional levels of treatment in cases of poor source water quality.(6) The executive director may establish minimum design, operational, and reporting requirements for watershed control programs and treatment processes used to meet the treatment technique requirements of this subsection.(d) Microbial inactivation requirements. A system that treats surface water or groundwater under the direct influence of surface water must meet minimum disinfection requirements before the water is supplied to any consumer.(1) Inactivation table. The disinfection process must achieve the minimum microbial inactivation levels shown in the following table.Attached Graphic(A) The disinfection process at treatment plants not described in the Microbial Inactivation Requirements table must provide the level of disinfection required by the executive director.(B) The executive director may require additional levels of treatment in cases of poor source water quality.(C) The executive director may reduce the inactivation requirement for plants that meet the individual filter effluent performance criteria contained in subsection (g)(1) of this section and have been assigned a Bin 1 classification under the provisions of subsection (c)(3) of this section.(D) A system that fails to meet the inactivation requirements of this section for a period of longer than four consecutive hours commits a nonacute treatment technique violation. A system that fails to conduct the additional testing required by paragraph (2)(C) of this subsection also commits a nonacute treatment technique violation.(E) A system that has a plant assigned a Bin 2, 3, or 4 classification under the provisions of subsection (c)(3) of this section and uses UV disinfection facilities to meet the treatment technique requirements for Cryptosporidium must meet the inactivation requirements of this subsection in at least 95% of the water treated each month.(2) Monitoring requirements for chemical disinfectants. Public water systems must monitor the performance of the disinfection facilities to ensure that appropriate disinfectant levels are maintained. All monitoring conducted pursuant to the requirements of this subsection must be conducted at sites designated in the public water system's monitoring plan.(A) The disinfectant residual, pH, temperature, and flow rate of the water in each disinfection zone must be measured at least once each day during a time when peak hourly raw water flow rates are occurring.(B) Disinfection contact time will be based on tracer study data or a theoretical analysis submitted by the system owner or their designated agent and approved by the executive director and the actual flow rate that is occurring at the time that monitoring occurs.(C) Treatment plants that fail to demonstrate an appropriate level of treatment must repeat these tests at four-hour or shorter intervals until compliance has been reestablished.(3) Monitoring requirements for UV disinfection facilities. Public water systems must monitor the performance of the UV disinfection facilities.(A) A system must continuously monitor and record UV intensity as measured by a UV sensor, lamp status, the flow rate through the unit, and other parameters prescribed by the executive director to ensure that the units are operating within validated conditions.(B) A system with a plant that has been assigned a Bin 2, 3, or 4 classification under the provisions of subsection (c)(3) of this section must also monitor and record the amount of water treated by each UV unit each month and the amount of water produced each month when the unit was not operating within validated conditions.(4) Analytical requirements. All monitoring required by this subsection must be conducted at a facility approved by the executive director and using methods that conform to the requirements of §290.119 of this title (relating to Analytical Procedures).(A) The pH analysis must be conducted using a pH meter with a minimum accuracy of plus or minus 0.1 pH units.(B) The temperature of the water must be measured using a thermometer or thermocouple with a minimum accuracy of plus or minus 0.5 degrees Celsius.(C) The free chlorine or chloramine residual (measured as total chlorine) must be measured to a minimum accuracy of plus or minus 0.1 milligrams per liter (mg/L). Color comparators may be used for distribution system samples only. When used, a color comparator must have current reagents, an unfaded and clear color comparator, a sample cell that is not discolored or stained, and must be properly stored in a cool, dark location where it is not subjected to conditions that would result in staining. The color comparator must be used in the correct range. If a sample reads at the top of the range, the sample must be diluted with chlorine-free water, then a reading taken and the resulting residual calculated.(D) The chlorine dioxide residual must be measured to a minimum accuracy of plus or minus 0.05 mg/L using a method that conforms to the requirements of §290.119 of this title. The DPD-glycine method using a colorimeter or spectrophotometer may be utilized only with the written permission of the executive director.(E) The ozone residual must be measured to a minimum accuracy of plus or minus 0.05 mg/L using the Indigo Method and using a colorimeter or spectrophotometer.(F) The UV dose must be measured by a calibrated sensor approved by the executive director.(e) Filtration requirements for conventional filters. A system that uses granular media filters to treat surface water or groundwater under the direct influence of surface water must meet minimum filtration requirements before the water is supplied to any consumer.(1) Treatment technique requirements for combined filter effluent. Treatment plants using conventional media filtration must meet the following turbidity requirements.(A) The turbidity level of the combined filter effluent must never exceed 1.0 nephelometric turbidity unit (NTU).(B) The turbidity level of the combined filter effluent must be 0.3 NTU or less in at least 95% of the samples tested each month.(2) Performance criteria for individual filter effluent. The filtration techniques must ensure the public water system meets the following performance criteria.(A) The turbidity from each individual filter effluent should never exceed 1.0 NTU.(B) At a public water system that serves 10,000 people or more, the turbidity from each individual filter effluent should not exceed 0.5 NTU at four hours after the individual filter is returned to service after backwash or shutdown.(3) Routine turbidity monitoring requirements. A system must monitor the performance of its filtration facilities.(A) A system that serves fewer than 500 people and continuously monitors the turbidity level of each individual filter must measure and record the turbidity level of the combined filter effluent at least once each day that the plant is in operation.(B) A system that serves at least 500 people and continuously monitors the turbidity level of each individual filter must measure and record the turbidity level of the combined filter effluent at least every four hours that the system serves water to the public.(C) Except as provided in subparagraph (D) of this paragraph, a system must continuously monitor the filtered water turbidity at the effluent of each individual filter and record the turbidity value every 15 minutes.(D) A system that serves fewer than 10,000 people and monitors combined filter effluent turbidity in lieu of individual filter effluent turbidity under the provisions of §290.42(d)(11)(E)(ii) of this title (relating to Water Treatment) must:(i) continuously monitor the turbidity of the combined filter effluent and record the turbidity value every 15 minutes; and(ii) measure and record the turbidity level at the effluent of each filter at least once each day the plant is in operation. (4) Special investigation requirements. A system which fails to produce water with acceptable turbidity levels or if the level of removal/inactivation of pathogens is inadequate or cannot be determined, the system must investigate the cause of the problem and take appropriate corrective action. The executive director can waive these special monitoring requirements for systems that have a corrective action schedule approved by the executive director.(A) A public water system that fails to meet the turbidity criteria specified in paragraph (2) of this subsection must conduct additional monitoring.(i) Each time a filter exceeds an applicable filtered water turbidity level specified in paragraph (2) of this subsection for two consecutive 15-minute readings, the public water system must either identify the cause of the exceedance or produce a filter profile on the filter within seven days of the exceedance.(ii) Each time a filter exceeds the filtered turbidity level specified in paragraph (2)(A) of this subsection for two consecutive 15-minute readings on three separate occasions during any consecutive three-month period, the public water system must conduct a filter assessment on the filter within 14 days of the third exceedance.(iii) Each time the filtered water turbidity level for a specific filter or any combination of individual filters exceeds 2.0 NTU on two consecutive 15-minute readings during two consecutive months, the public water system must participate in a third-party comprehensive performance evaluation (CPE). If the system serves at least 10,000 people, the CPE must be conducted within 90 days of the first exceedance in the second month. If the system serves fewer than 10,000 people, the CPE must be conducted within 120 days of the first exceedance in the second month.(iv) A public water system that uses conventional filters may be required to participate in a special investigation conducted by the executive director if, during two consecutive months, the public water system fails to report individual filter effluent turbidity levels on a day when the combined filter effluent turbidity level exceeds 1.0 NTU.(B) A system that serves fewer than 10,000 people, monitors combined filter effluent turbidity in lieu of individual filter effluent turbidity, and fails to meet the turbidity criteria in paragraph (1)(A) of this subsection must conduct additional monitoring. The executive director may waive these special monitoring requirements for systems that have a corrective action schedule approved by the executive director.(i) Each time the combined filter effluent turbidity level exceeds 1.0 NTU for two consecutive 15-minute readings, the public water system must either identify the cause of the exceedance or complete a filter profile on the combined filter effluent within seven days of the exceedance.(ii) Each time the combined filter effluent turbidity level exceeds 1.0 NTU for two consecutive 15-minute readings on three separate occasions during any consecutive three-month period, the public water system must conduct a filter assessment on each filter within 14 days of the third exceedance.(iii) Each time the combined filter effluent turbidity level exceeds 2.0 NTU on two consecutive 15-minute readings during two consecutive months, the public water system must participate in a third-party CPE within 120 days of the first exceedance in the second month.(C) A public water system may be required to participate in a special investigation conducted by the executive director when documentation or lack of documentation from a public water system indicates that the pathogen removal/inactivation levels are inadequate or cannot be determined.(5) Analytical requirements for turbidity. All monitoring required by this subsection must be conducted by a facility approved by the executive director and using methods that conform to the requirements of §290.119 of this title. Equipment used for compliance measurements must be maintained and calibrated in accordance with §290.46(s) of this title (relating to Minimum Acceptable Operating Practices for Public Drinking Water Systems).(A) Turbidity must be measured with turbidimeters that use a method that conforms with the requirements as described in §290.119 of this title.(B) A system monitoring the performance of individual filters with on-line turbidimeters and recorders may monitor combined filter effluent turbidity levels by either continuously monitoring turbidity levels with an on-line turbidimeter or measuring the turbidity level in grab samples with a bench-top turbidimeter.(C) Continuous turbidity monitoring must be conducted using a continuous, on-line turbidimeter and a device that records the turbidity level reading at least once every 15 minutes.(i) Turbidity data may be recorded electronically by a supervisory control and data acquisition system (SCADA) or on a strip chart. The recorder must be designed so that the operator can accurately determine the turbidity level readings at 15-minute intervals. (ii) If there is a failure in the continuous turbidity monitoring equipment at a system serving 10,000 people or more, the system must conduct grab sampling every four hours in lieu of continuous monitoring, but for no more than five working days following the failure of the equipment.(iii) If the continuous turbidity monitoring equipment at a system serving fewer than 10,000 people malfunctions, the system must conduct grab sampling every four hours in lieu of continuous monitoring, but for no more than 14 working days following the failure of the equipment.(D) A system that monitors combined filter effluent turbidity in lieu of individual filter effluent turbidity under §290.42(d)(11)(E)(ii) of this title must monitor the performance of individual filters using a bench-top turbidimeter.(E) Combined filter effluent and individual filter effluent turbidity monitoring equipment and all associated data recording devices shall read and record turbidity levels to adequately determine compliance with the requirements as described in this subchapter. The turbidity equipment and all associated recording devices shall read and record levels:(i) at least 10% higher than the turbidity level needed to determine compliance with the highest applicable regulatory requirement as described in this subchapter;(ii) at the lowest method detection limit of the approved turbidimeter; and(iii) at the precision and accuracy necessary to determine compliance with the requirements as described in this subchapter.(f) Filtration requirements for other filters. A system that uses cartridge filters, membrane filters, or other unconventional filtration systems to treat surface water or groundwater under the direct influence of surface water must meet minimum filtration requirements before the water is supplied to any consumer.(1) Treatment technique requirements. A system that uses unconventional filtration technologies such as membrane filters or cartridge filters must meet treatment technique requirements prescribed by the executive director.(A) The filtration facilities must meet combined filter effluent and individual filter effluent turbidity limits established by the executive director.(B) The filtration facilities must be operated and maintained in accordance with requirements that the executive director determines are needed to demonstrate the amount of Giardia and Cryptosporidium removal achieved.(2) Monitoring requirements. A system must monitor the performance of its filtration facilities.(A) A system that serves fewer than 500 people and continuously monitors the turbidity level of each individual cartridge or membrane unit must measure and record the turbidity level of the combined effluent at least once each day that the plant is in operation.(B) A system that serves at least 500 people and continuously monitors the turbidity level of each individual cartridge or membrane unit must measure and record the turbidity level of the combined effluent at least every four hours that the system serves water to the public.(C) A system using membranes must use a method approved by the executive director to continuously monitor the quality of the water produced by each membrane unit and record the monitoring results at least once every five minutes. The executive director may approve monitoring parameters other than turbidity and decrease the frequency to once every 15 minutes if the approved operating parameters will allow consecutive readings to be obtained between backwash or backflush cycles.(D) A system using membranes must conduct direct integrity testing on each membrane unit using a procedure approved by the executive director.(i) Direct integrity tests must be conducted in a manner that will detect a membrane defect of 3 microns or smaller and demonstrates a removal efficiency equal to or greater than the removal credit awarded to the membrane filtration process by the executive director.(ii) Direct integrity test method must calculate the log removal value for a 3-micron size particle and establish an upper control limit which assures that the unit is capable of meeting the removal credit approved by the executive director.(iii) A system that has been assigned a Bin 1 classification under the provisions of subsection (c)(3)(B) of this section must conduct direct integrity tests at least once every seven days. The executive director may reduce the testing requirements for other membrane units.(iv) A system that has been assigned a Bin 2, 3, or 4 classification under the provisions of subsection (c)(3)(B) of this section must conduct direct integrity tests at least once each day that the membrane unit is used for filtration. The executive director may approve less frequent testing, based on demonstrated process reliability, the use of multiple barriers effective for Cryptosporidium removal or inactivation, or reliable process safeguards.(v) A system must immediately conduct a direct integrity test on any membrane unit that produces filtered water with turbidity level above 0.15 NTU on two consecutive readings. The executive director must establish alternate site-specific control limits for systems that use other approved technology in lieu of turbidimeters to continuously monitor the performance of membrane units.(vi) A system must immediately remove any membrane unit that fails a direct integrity test from service until the membrane modules in that unit are inspected and, if necessary, repaired. A membrane unit that has been removed from service may not be returned to service until it has passed a direct integrity test.(E) A system that uses cartridge filters must continuously monitor the performance of the filtration process in a manner approved by the executive director.(3) Analytical requirements. All monitoring required by this subsection must be conducted by a facility approved by the executive director and using methods that conform to the requirements of §290.119 of this title. Equipment used for compliance measurements must be maintained and calibrated in accordance with §290.46(s) of this title.(A) Turbidity of the combined effluent must be measured with turbidimeters that meet the requirements of subsection (e)(5)(A) of this section.(B) The turbidity of the water produced by each membrane unit must be measured using the Hach FilterTrak Method 10133. The executive director may approve the use of alternative technology to monitor the quality of the water produced by each membrane unit.(C) A system continuously monitoring the performance of individual cartridges or membrane units may monitor combined effluent turbidity levels by either continuously monitoring turbidity levels with an on-line turbidimeter, or by measuring the turbidity level in grab samples with a bench-top turbidimeter.(D) Data collected from on-line instruments may be recorded electronically by a SCADA system or on a strip chart recorder. The recorder must be designed so that the operator can accurately determine the value of readings at the monitoring interval approved by the executive director.(i) If there is a failure in the continuous monitoring equipment at a system serving 10,000 people or more, the system must conduct grab sampling every four hours in lieu of continuous monitoring, but for no more than five working days following the failure of the equipment.(ii) If there is a failure in the continuous monitoring equipment at a system serving fewer than 10,000 people, the system must conduct grab sampling every four hours in lieu of continuous monitoring, but for no more than 14 working days following the failure of the equipment.(E) A system that uses cartridge filters and does not continuously monitor the turbidity of each filter unit must monitor the performance of individual filters at least once each day using a bench-top turbidimeter.(F) Combined filter effluent and individual filter effluent turbidity monitoring equipment and all associated data recording devices shall read and record turbidity levels to adequately determine compliance with the requirements as described in this subchapter. The turbidity equipment and all associated recording devices shall read and record levels:(i) at least 10% higher than the turbidity level needed to determine compliance with the highest applicable regulatory requirement as described in this subchapter;(ii) at the lowest method detection limit of the approved turbidimeter; and(iii) at the precision and accuracy necessary to determine compliance with the requirements as described in this subchapter.(4) Special investigation requirements. A system which fails to produce water with acceptable turbidity levels, or if the level of removal/inactivation of pathogens is inadequate or cannot be determined, the system shall investigate the cause of the problem and take appropriate corrective action. The executive director can waive these special monitoring requirements for systems that have a corrective action schedule approved by the executive director.(A) A public water system that utilizes membrane filters for pathogen removal may be required to participate in a special investigation conducted by the executive director if, during two consecutive months, the system fails to report all required direct integrity test results for a specific membrane unit.(B) A public water system that utilizes membrane filters for pathogen removal may be required to participate in a special investigation conducted by the executive director if, during two consecutive months, a specific membrane unit fails at least one direct integrity test and continues to produce water.(C) A public water system may be required to participate in a special investigation conducted by executive director when documentation or lack of documentation from a public water system indicates that the pathogen removal/inactivation levels are inadequate or cannot be determined.(g) Other treatment credits for systems in Bins 2 through 4. The executive director may grant additional pathogen removal and inactivation credit to systems that meet enhanced design, operational, maintenance, and reporting requirements.(1) Individual filter effluent. The executive director may approve an additional 1.0-log removal credit for Giardia and Cryptosporidium to a treatment plant that uses conventional granular media filters.(A) The executive director will approve the additional credit for a plant if:(i) the system continuously monitored the filtered water turbidity at the effluent of each individual filter and recorded the turbidity value every 15 minutes that the filter was sending water to the clearwell;(ii) the turbidity level at each individual filter effluent is less than or equal to 0.15 NTU in at least 95% of the measurements recorded during the month; and(iii) no individual filter produced water with turbidity level above 0.3 NTU in two consecutive 15-minute readings.(B) The executive director may also approve the additional credit for a plant that does not meet the requirements of subparagraph (A) of this paragraph if:(i) the executive director determines that the failure to meet the requirements of subparagraph (A) of this paragraph could not have been prevented through optimizing plant operations, design, or maintenance; and(ii) the system has experienced no more than two such failures within the most recent 12 months.(2) Combined filter effluent. The executive director may approve an additional 0.5-log removal credit for Cryptosporidium to a treatment plant that uses conventional granular media filters if:(A) the system continuously monitored the filtered water turbidity at the effluent of each individual filter and recorded the turbidity value every 15 minutes that the filter was sending water to the clearwell;(B) the turbidity level at the combined filter effluent is less than or equal to 0.15 NTU in at least 95% of the measurements recorded during the month; and(C) the plant does not receive additional treatment credit under paragraph (1) of this subsection.(3) Second stage filtration. The executive director will approve an additional 0.5-log removal credit for Giardia and Cryptosporidium to a treatment plant that uses a second, separate stage of conventional granular media filters if:(A) the filters in both stages meet minimum design criteria approved by the executive director;(B) all of the water produced by the plant passes through both stages of filtration;(C) the system continuously monitored the filtered water turbidity at the effluent of each individual filter in the first stage of filtration and recorded the turbidity value every 15 minutes that the filter was sending water to the clearwell; and(D) no individual filter in the first stage of filtration produced water with turbidity level above 1.0 NTU in two consecutive 15-minute readings.(4) Other pathogen control strategies. The executive director may approve an additional removal or inactivation credit for other pre-filtration, filtration, or post-filtration strategies that can demonstrate effective, consistent levels of enhanced pathogen control.(A) The alternative strategy must achieve a quantifiable reduction in the risk of waterborne disease in all of the treated water produced by the plant.(B) The alternative strategy must conform to any applicable requirement of 40 CFR §§141.715 - 141.720.(C) The executive director may establish minimum site-specific design, operational, maintenance, and reporting requirements for any alternative strategy used to meet minimum treatment technique requirements of subsection (c) of this section.(D) The executive director may not approve additional removal credit under the provisions of this paragraph to any strategy that includes a treatment process has been assigned additional removal or inactivation credit under any other provision of this subsection.(h) Reporting requirements. Public water systems must properly complete and submit periodic reports to demonstrate compliance with this section.(1) A system that has a turbidity level exceeding 1.0 NTU in the combined filter effluent must consult with the executive director within 24 hours.(2) A system that treats surface water sources or groundwater sources under the direct influence of surface water must submit a Surface Water Monthly Operating Report each month for each plant.(A) A system that uses alternative treatment technologies or has been assigned a Bin 2, Bin 3, or Bin 4 classification under subsection (c)(3)(B) of this section must submit a Surface Water Monthly Operating Report (commission Form 0102D) for alternative technologies.(B) A system that continuously monitors the performance of individual filters, but is not required to submit commission Form 0102D, must submit a Surface Water Monthly Operating Report (commission Form 0102C).(C) A system that is allowed by the executive director to submit combined filter effluent turbidity in lieu of individual filter effluent turbidity under §290.42(d)(11)(E)(ii) of this title must submit a Surface Water Monthly Operational Report for Plants That Do Not Have a Turbidimeter on Each Filter (commission Form 0103) each month for each plant that treats surface water or groundwater under the direct influence of surface water.(3) A system that must complete the additional monitoring required by subsection (e)(4)(A)(i) or (B)(i) of this section must submit a Filter Profile Report for Individual Filters (commission Form 10276) with its Surface Water Monthly Operating Report.(4) A system that must complete the additional monitoring required by subsection (e)(4)(A)(ii) or (B)(ii) of this section must submit a Filter Assessment Report for Individual Filters (commission Form 10277) with its Surface Water Monthly Operating Report.(5) A system that must complete the additional monitoring required by subsection (e)(4)(A)(iii) or (B)(iii) of this section must submit a Comprehensive Performance Evaluation Request Form (commission Form 10278) with its Surface Water Monthly Operating Report.(6) A system must submit any additional reports required by the executive director to verify the level of pathogen removal or inactivation achieved by the system's treatment plants.(7) A system must submit its Cryptosporidium bin classification.(8) A system must submit reports required by subsection (b)(7) of this section.(9) Periodic reports required by this section must be submitted to the Water Supply Division, Texas Commission on Environmental Quality, MC 155, P.O. Box 13087, Austin, Texas 78711-3087 by the tenth day of the month following the end of the reporting period.(i) Compliance determination. Compliance with the requirements of this section must be determined using the criteria of this subsection. (1) A public water system that fails to complete source water monitoring or conduct the routine monitoring tests and any applicable special investigations required by this section commits a monitoring violation.(2) A public water system that fails to submit a report required by subsection (h) of this section commits a reporting violation. (3) A public water system that has one or more of the following conditions as specified in subparagraphs (A) - (E) of this paragraph commits an acute treatment technique violation and is required to issue a public notice and a boil water notice within 24 hours in accordance with §290.122(a) of this title (relating to Public Notification).(A) A public water system using conventional filters that has a turbidity level exceeding 5.0 NTU in the combined filter effluent.(B) A public water system using conventional filters that has a combine filter effluent (CFE) turbidity level exceeding 2.0 NTU at plants that are required to have individual filter effluent (IFE) turbidimeters and failed to properly monitor or record IFE turbidity data during the period when the CFE turbidity level was above 2.0 NTU.(C) A public water system using conventional filters that has a CFE turbidity level exceeding 2.0 NTU at a plant that has only two filters, is not required to continuously monitor the IFE turbidity level at the effluent of each filter, and did not collect IFE turbidity grab samples during the period when CFE levels were above 2.0 NTU.(D) A public water system that fails to submit a report required by subsection (h) of this section for two consecutive months.(E) A public water system using membrane or cartridge filters that has a turbidity level exceeding 1.0 NTU in the combined filter effluent.(4) A public water system using conventional filters that has one or more of the following conditions as specified in subparagraphs (A) - (D) of this paragraph, and has not met the conditions as specified in paragraph (3) of this subsection, commits an acute treatment technique violation and is required to issue a public notice within 24 hours in accordance with §290.122(a) of this title.(A) A CFE turbidity level exceeding 1.0 NTU during a period when the disinfection protocol did not achieve an inactivation ratio of at least 2.0 for both Giardia and viruses.(B) A CFE turbidity level exceeding 1.0 NTU during a period that IFE turbidity levels were above 2.0 NTU at one or more filters.(C) A CFE turbidity level exceeding 1.0 NTU occurring at a plant that is required to have IFE turbidimeters and fails to properly monitor or record IFE turbidity data during the period when the CFE turbidity level was above 1.0 NTU.(D) A CFE turbidity level exceeding 1.0 NTU occurred at a plant that has only two filters, is not required to continuously monitor the IFE turbidity level at the effluent of each filter, and did not collect IFE turbidity grab samples during the period when CFE levels were above 1.0 NTU.(5) Except as provided in paragraphs (3) and (4) of this subsection, a public water system that violates the requirements of subsections (c), (d)(1), (e)(1), and (f)(1) of this section commits a nonacute treatment technique violation.(6) A system that fails to request a bin classification within six months of completing a round of source water monitoring commits a treatment technique violation.(7) A system that fails to correct the performance-limiting factors identified in a comprehensive performance evaluation conducted under the requirements of subsection (e)(4)(A)(iii) or (B)(iii) of this section commits a violation.(8) A system that fails to properly issue a public notice required by subsection (j) of this section commits a violation.(j) Public notification. The owner or operator of a public water system that violates the requirements of this section must notify the executive director and the people served by the system.(1) A public water system that commits an acute treatment technique violation must notify the executive director and the water system customers of the acute violation within 24 hours in accordance with the requirements of §290.46(q) of this title and §290.122(a) of this title (relating to Public Notification).(2) A public water system that has a turbidity level exceeding 1.0 NTU in the combined filter effluent must consult with the executive director within 24 hours of the violation.(A) Based on the results of the consultation, the executive director will determine whether the water system must notify its customers in accordance with the requirements of §290.122(a) or (b) of this title.(B) A water system that fails to consult with the executive director as required by this paragraph must notify its customers in accordance with the requirements of §290.122(a) of this title.(3) Except as provided in paragraphs (1) and (2) of this subsection, a public water system that fails to meet the treatment technique requirements of subsections (c), (d)(1), (e)(1), or (f)(1) of this section must notify the executive director by the end of the next business day and the water system customers in accordance with the requirements of §290.122(b) of this title.(4) A public water system that fails to conduct the monitoring required by this section must notify its customers of the violation in accordance with the requirements of §290.122(c) of this title.</content><note type="source"><p>Source Note: The provisions of this §290.111 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective December 23, 2004, 29 TexReg 11729; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective November 8, 2012, 37 TexReg 8849; amended to be effective July 30, 2015, 40 TexReg 4769; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.112"><num value="290.112">§290.112</num><heading>Total Organic Carbon (TOC)</heading><content>(a) Applicability. A water treatment plant must meet the provisions of this section if the plant:(1) serves a community or nontransient, noncommunity public water system;(2) treats surface water or groundwater under the direct influence of surface water; and(3) uses a series of treatment processes that includes coagulation, flocculation, sedimentation or clarification, and filtration as part of the overall treatment protocol.(b) Treatment technique. Systems must achieve the Step 1 removal requirements in paragraph (1) of this subsection, meet one of the alternative compliance criteria described in paragraph (2) of this subsection, or apply for the alternative Step 2 removal requirements described in paragraph (3) of this subsection.(1) Systems must determine their ability to meet the Step 1 removal requirements given in the following table. A water treatment plant's Step 1 total organic carbon (TOC) required percent removal is based upon plant's source water TOC and alkalinity. Step 1 TOC percent removal requirements are indicated in the following table. Systems practicing softening are evaluated based on the Step 1 TOC removal in the far-right column (Source water alkalinity >120 milligrams per liter (mg/L)) for the specified source water TOC.Attached Graphic(2) Systems may determine their ability to meet one of the eight alternative compliance criteria listed in this paragraph.(A) A system meets alternative compliance criteria Number 1 if the system's source water TOC level is less than 2.0 mg/L, calculated quarterly as a running annual average.(B) A system meets alternative compliance criteria Number 2 if the system's treated water TOC level is less than 2.0 mg/L, calculated quarterly as a running annual average.(C) A system meets alternative compliance criteria Number 3 if: the system's source water TOC level is less than 4.0 mg/L, calculated quarterly as a running annual average; the source water alkalinity is greater than 60 mg/L (as calcium carbonate (CaCO3), calculated quarterly as a running annual average; and the total trihalomethanes (TTHM) and haloacetic acid-group of five (HAA5) running annual averages are no greater than 0.040 mg/L and 0.030 mg/L, respectively.(D) The system meets alternative compliance criteria Number 4 if the TTHM and HAA5 running annual averages are no greater than 0.040 mg/L and 0.030 mg/L, respectively, and the system uses only chlorine for primary disinfection and maintenance of a residual in the distribution system.(E) The system meets alternative compliance criteria Number 5 if the system's source water specific ultraviolet absorbance (SUVA), prior to any treatment, measured monthly, is less than or equal to 2.0 liters per milligram-meter (L/mg-m), calculated quarterly as a running annual average.(F) The system meets alternative compliance criteria Number 6 if the system's finished water SUVA, measured monthly at a point prior to any disinfection, is less than or equal to 2.0 L/mg-m, calculated quarterly as a running annual average.(G) The system meets alternative compliance criteria Number 7 if the system practices softening, cannot achieve the Step 1 TOC removals required by paragraph (1) of this subsection, and has treated water alkalinity less than 60 mg/L (as CaCO3) and calculated quarterly as a running annual average.(H) The system meets alternative compliance criteria Number 8 if the system practices softening, cannot achieve the Step 1 TOC removals required by paragraph (1) of this subsection, and has magnesium hardness removal greater than or equal to 10 mg/L (as CaCO3), measured monthly calculated quarterly as a running annual average.(3) If a system fails to meet the Step 1 TOC removal requirement required by paragraph (1) of this subsection and does not meet one of eight alternative compliance criteria described in paragraph (2) of this subsection, the system must apply to the executive director for approval of Step 2 removal requirements.(A) The plant must perform Step 2 jar testing to determine the coagulant dose at which the removal of TOC is less than 0.3 mg/L for an increase in coagulant of 10 mg/L alum or its equivalent. This dose is referred to as the point of diminishing returns (PODR).(B) The system must submit the results of the Step 2 jar testing to the executive director for approval of the alternative removal requirements at least 15 days before the end of the applicable quarter.(C) The executive director may approve Step 2 alternative removal requirements.(i) If approved, the removal achieved at the PODR becomes the alternative full-scale TOC removal requirement for the plant.(ii) The alternate removal requirements may be applied to the quarter in which the jar test results are received and for the following quarter.(c) TOC monitoring requirements. Systems must conduct required TOC monitoring during normal operating conditions at sites and at the frequency designated in the system's monitoring plan.(1) Systems must monitor for TOC and alkalinity in the source water prior to any treatment. Between one and eight hours after taking the source water sample, systems must measure each treatment plant TOC after filtration in the combined filter effluent stream. These samples (source water alkalinity, source water TOC, and treated water TOC) are referred to as a TOC sample set.(2) Systems must take one TOC sample set monthly (every 30 days) at a time representative of normal operating conditions and influent water quality. With the executive director's approval, a system may reduce monitoring according to subparagraphs (A) - (C) of this paragraph.(A) Systems with a running annual average treated water TOC of less than 2.0 mg/L for two consecutive years may reduce monitoring to one TOC sample set per plant per quarter (every 90 days). The system must revert to routine monitoring in the month following the quarter when the running annual average treated water TOC is greater than or equal to 2.0 mg/L.(B) Systems with a running annual average treated water TOC of less than 1.0 mg/L for one year may reduce monitoring to one TOC sample set per plant per quarter (every 90 days). The system must revert to routine monitoring in the month following the quarter when the running annual average treated water TOC is greater than or equal to 2.0 mg/L.(C) Systems with a running annual average source water TOC at each plant of less than or equal to 4.0 mg/L based on the running annual average of the most recent four quarters of monitoring may reduce source TOC monitoring to one source TOC sample per quarter (every 90 days) if they also meet criteria for reduced disinfection byproduct monitoring. In order to remain on quarterly source TOC monitoring, the system must also meet the criteria for reduced trihalomethane and haloacetic acid monitoring given in §290.113(c)(4) of this title (relating to Stage 1 Disinfection Byproducts (TTHM and HAA5)) until the date shown in table §290.113(a)(2) of this title. After the date shown in §290.115(a)(2) of this title (relating to Stage 2 Disinfection Byproducts (TTHM and HAA5)), the system must also meet the criteria for reduced trihalomethane and haloacetic acid monitoring in §290.115(c)(3) of this title in order to remain on quarterly source TOC monitoring. The system must revert to routine monitoring in the first month following the quarter when the running annual average source water TOC is greater than 4.0 mg/L, or the system no longer meets the reduced monitoring criteria for disinfection byproducts.(3) A public water system attempting to meet the treatment technique requirements for TOC using alternative compliance criteria Number 5 (as defined in subsection (b)(2)(E) of this section) must monitor for SUVA in the source water prior to any treatment at least once each month.(4) A public water system attempting to meet the treatment technique requirements for TOC using alternative compliance criteria Number 7 (as defined in subsection (b)(2)(G) of this section) must monitor for alkalinity in the treated water at any point prior to distribution system at least once each month.(5) A public water system attempting to meet the treatment technique requirements for TOC using alternative compliance criteria Number 8 (as defined in subsection (b)(2)(H) of this section) must monitor for magnesium in both the source water prior to any treatment at and the treated water at any point prior to the distribution system least once each month.(d) Analytical requirements for TOC treatment. Analytical procedures required by this section must be conducted at a facility approved by the executive director and using methods that conform to the requirements of §290.119 of this title (relating to Analytical Procedures).(e) Reporting requirements for TOC. Systems treating surface water or groundwater under the direct influence of surface water shall properly complete and submit periodic reports to demonstrate compliance with this section.(1) The reports must be submitted to the Water Supply Division, MC 155, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 by the tenth day of the month following the end of the reporting period.(2) Public water systems must submit a Monthly Operational Report for Total Organic Carbon (commission Form 0879) each month.(3) A system that does not meet the Step 1 removal requirements must submit a Request for Alternate TOC Requirements at least 15 days before the end of the quarter.(A) If the system meets alternative compliance criterion Number 3, subsection (b)(2)(C) of this section, the system must report the running annual average TTHM and HAA5 concentrations as determined under the requirements of §290.113 of this title.(B) If the system meets alternative compliance criterion Number 4, subsection (b)(2)(D) of this section, the system must report the running annual average TTHM and HAA5 concentrations as determined under the requirements of §290.113 or §290.115 of this title, and report all disinfectants used by the system during last 12 months.(C) If the system meets alternative compliance criterion Number 5, subsection (b)(2)(E) of this section, the system must report the average source water SUVA for each of the preceding 12 months. (D) If the system meets alternative compliance criterion Number 6, subsection (b)(2)(F) of this section, the system must report the average treated water SUVA for each of the preceding 12 months.(E) If the system practices softening and meets alternative compliance criterion Number 8, subsection (b)(2)(H) of this section, the system must report the source water and treated water magnesium concentrations and the average percent removal of magnesium obtained during each of the preceding 12 months.(F) A system that does not meet any of the alternative compliance criteria must apply for the Step 2 alternative removal requirements and must submit the results of Step 2 jar testing.(f) Compliance determination. Compliance with the requirements of this section shall be based on the following criteria:(1) A system that fails to conduct the monitoring tests required by this section commits a monitoring violation. Failure to monitor will be treated as a violation for the entire period covered by the annual average.(2) A system that fails to report the results of monitoring tests required by this section commits a reporting violation. Systems may use only data collected under the provisions of this section to qualify for reduced monitoring.(3) A system that does not meet any of the alternative compliance criteria and does not achieve the required TOC removal commits a treatment technique violation. Compliance shall be determined quarterly by determining an annual average removal ratio using the following method:(A) The actual monthly TOC percent removal must be determined for each month. The actual removal for a TOC sample set is equal to (1 - (treated water TOC/source water TOC)). The actual monthly percent removal is calculated as the average of all actual removals for all TOC sample sets collected in the month, expressed as a percent.(B) The required monthly Step 1 or Step 2 TOC percent removal must be determined as provided in subsection (b) of this section. The executive director will approve or disapprove Step 2 requirements based on jar or pilot data. Until the executive director approves the Step 2 TOC removal requirements, the system must meet the Step 1 TOC removals contained in subsection (b)(1) of this section.(C) The monthly removal ratio must be determined. The monthly removal ratio is determined by dividing the actual monthly TOC percent removal for each month by the required monthly Step 1 or approved Step 2 TOC percent removal for the month. The alternative compliance criteria may be used on a monthly basis as described in clauses (i) - (iv) of this subparagraph.(i) If the monthly average source or treated water TOC is less than 2.0 mg/L, a monthly removal ratio value of 1.0 may be assigned (in lieu of the value calculated in subparagraph (C) of this paragraph) when calculating compliance under the provisions of this section.(ii) If the monthly average water source or treated SUVA level is less than 2.0 L/mg-m, a monthly removal ratio value of 1.0 may be assigned (in lieu of the value calculated in subparagraph (C) of this paragraph) when calculating compliance under the provisions of this section.(iii) In any month that a softening system lowers alkalinity below 60 mg/L (as CaCO3), a monthly removal ratio value of 1.0 may be assigned (in lieu of the value calculated in subparagraph (C) of this paragraph) when calculating compliance under the provisions of this section.(iv) In any month that a softening system removes at least 10 mg/L of magnesium hardness (as CaCO3) a monthly value of 1.0 may be assigned (in lieu of the value calculated in subparagraph (C) of this paragraph) when calculating compliance under the provisions of this section.(D) The annual average removal ratio must be determined. The annual average removal ratio is the average of all monthly removal ratios over the most recent 12-month period. To determine the annual average removal ratio, determine the sum of all monthly removal ratios in the most recent 12-month period, and divide that sum by 12.(E) If the annual average removal ratio is less than 1.00, the system commits a treatment technique violation.(4) A public water system that fails to do a required public notice or certify that the public notice has been performed commits a public notice violation.(g) Public Notification. A public water system that violates the treatment technique requirements of this section must notify the executive director and the system's customers.(1) A public water system that commits a TOC treatment technique violation shall notify the executive director and the water system customers in accordance with the requirements of §290.122(b) of this title (relating to Public Notification).(2) A public water system which fails to conduct the monitoring required by this section must notify its customers of the violation in accordance with the requirements of §290.122(c) of this title.</content><note type="source"><p>Source Note: The provisions of this §290.112 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective November 8, 2012, 37 TexReg 8849; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.113"><num value="290.113">§290.113</num><heading>Stage 1 Disinfection Byproducts (TTHM and HAA5)</heading><content>(a) Applicability for total trihalomethanes (TTHM) and haloacetic acids (group of five) (HAA5). All community and nontransient, noncommunity water systems shall comply with the requirements of this section.(1) Systems must comply with the Stage 1 requirements in this section until the date shown in the table entitled "Date to Start Stage 2 Compliance."(2) Until the date shown in the table in Figure: 30 TAC §290.113(a)(2) of this paragraph, systems must continue to monitor according to this section.Attached Graphic(b) Maximum contaminant level (MCL) for TTHM and HAA5. The running annual average concentration of TTHM and HAA5 shall not exceed the MCLs.(1) The MCL for TTHM is 0.080 milligrams/liter (mg/L).(2) The MCL for HAA5 is 0.060 mg/L.(c) Monitoring requirements for TTHM and HAA5. Systems must take all TTHM and HAA5 samples during normal operating conditions. Monitoring shall be performed at locations and frequency specified in the system's monitoring plan.(1) The minimum number of samples required to be taken shall be based on the number of treatment plants used by the system, except that multiple wells drawing raw water from a single aquifer shall be considered as one treatment plant for determining the minimum number of samples.(2) All samples taken within one sampling period shall be collected within a 24-hour period.(3) Systems must routinely sample at the frequency and locations given in the following table entitled "Stage 1 Routine Monitoring Frequency and Locations for TTHM and HAA5."Attached Graphic(4) The executive director may reduce the monitoring frequency for TTHM and HAA5 as indicated in the following table entitled "Stage 1 Reduced Monitoring Frequency and Locations for TTHM and HAA5."Attached Graphic(A) The executive director may not reduce the routine monitoring requirements for TTHM and HAA5 until a system has completed one year of routine monitoring in accordance with the provisions of paragraph (3) of this subsection.(B) A system that is on reduced monitoring and collects quarterly samples for TTHM and HAA5 may remain on reduced monitoring as long as the running annual average of quarterly averages for TTHM and HAA5 is no greater than 0.060 mg/L and 0.045 mg/L, respectively, and as long as it meets the requirements in subparagraph (D) of this paragraph.(C) A system that is on a reduced monitoring and monitors no more frequently than once each year may remain on reduced monitoring as long as TTHM and HAA5 concentrations are no greater than 0.060 mg/L and 0.045 mg/L, respectively, and as long as it meets the requirements in subparagraph (D) of this paragraph.(D) To remain on reduced TTHM and HAA5 monitoring, systems that treat surface water or groundwater under the direct influence of surface water must also maintain a source water annual average total organic carbon (TOC) level, before any treatment, less than or equal to 4.0 mg/L (based on the most recent four quarters of monitoring) on a continuing basis at each plant.(5) The executive director may require a system to return to the routine monitoring frequency described in paragraph (3) of this subsection.(A) A system that does not meet the requirements of paragraph (4)(B), (C) or (D) of this subsection must return to routine monitoring in the quarter immediately following the quarter in which the results exceed 0.060 mg/L or 0.045 mg/L for TTHMs and HAA5, respectively, or when the source water annual average TOC level, before any treatment, exceeds 4.0 mg/L at any plant.(B) A system that is on reduced monitoring and makes any significant change to its source of water or treatment program shall return to routine monitoring in the quarter immediately following the quarter when the change was made.(C) If a system is returned to routine monitoring, routine monitoring shall continue for at least one year before a reduction in monitoring frequency may be considered.(D) The executive director may return a system on reduced monitoring to routine monitoring at any time.(6) Systems monitoring no more frequently than once each year must increase their monitoring frequency to quarterly if either the TTHM annual average is >0.080 mg/L or the HAA5 annual average is >0.060 mg/L. The system must begin monitoring quarterly immediately following the monitoring period in which the system exceeds 0.080 mg/L or 0.060 mg/L for TTHMs or HAA5, respectively.(d) Analytical requirements for TTHM and HAA5. Analytical procedures required by this section shall be performed in accordance with §290.119 of this title (relating to Analytical Procedures). Testing for TTHM and HAA5 shall be performed at a laboratory accredited by the executive director.(e) Reporting requirements for TTHM and HAA5. The owner or operator of a public water system must ensure the executive director is provided with a copy of the results of any test, measurement, or analysis required by this subsection. The copies must be submitted within the first ten days following the month in which the result is received by the public water system, or the first ten days following the end of the required monitoring period as provided by this subsection, whichever occurs first. The copies must be mailed to the Water Supply Division, MC 155, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087.(f) Compliance determination for TTHM and HAA5. Compliance with the provisions of this section shall be determined as follows.(1) A system that fails to monitor in accordance with this section commits a monitoring violation. Failure to monitor will be treated as a violation for the entire period covered by the annual average.(2) A public water system that fails to report the results of the monitoring tests required by subsection (e) of this section commits a reporting violation.(3) Compliance with the MCLs for TTHM and HAA5 shall be based on the running annual average of all samples collected during the preceding 12 months.(A) A public water system that samples for TTHM and HAA5 each quarter must calculate the running annual average of the quarterly averages. (B) A public water system that samples for TTHM and HAA5 no more frequently than once each year must calculate the annual average of all samples collected during the year.(C) All samples collected at the sampling sites designated in the public water system's monitoring plan shall be used to compute the quarterly and annual averages unless the analytical results are invalidated by the executive director for technical reasons.(4) A public water system violates the MCL for TTHM if the running annual average for TTHM exceeds the MCL specified in subsection (b)(1) of this section.(5) A public water system violates the MCL for HAA5 if the running annual average for HAA5 exceeds the MCL specified in subsection (b)(2) of this section.(6) If a public water system is routinely sampling in accordance with the requirements of subsection (c)(3) of this section and an individual sample or quarterly average will cause the system to exceed the MCL for TTHM or HAA5, the system is in violation of the respective MCL at the end of that quarter.(7) If a public water system's failure to monitor makes it impossible to determine compliance with the MCL for TTHM or HAA5, the system commits an MCL violation for the entire period covered by the annual average.(g) Public Notification Requirements for TTHM and HAA5. A public water system that violates the treatment technique requirements of this section must notify the executive director and the system's customers.(1) A public water system that violates an MCL given in subsection (b)(1) or (2) of this section shall report to the executive director and the water system customers in accordance with the requirements of §290.122(b) of this title (relating to Public Notification).(2) A public water system which fails to conduct the monitoring required by subsection (c) of this section must notify its customers of the violation in accordance with the requirements of §290.122(c) of this title.(h) Best available technology for TTHM and HAA5. Best available technology for treatment of violations of MCLs in subsection (b) of this section are listed in 40 Code of Federal Regulations §141.64(b)(1)(ii).</content><note type="source"><p>Source Note: The provisions of this §290.113 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.114"><num value="290.114">§290.114</num><heading>Other Disinfection Byproducts (Chlorite and Bromate)</heading><content>(a) Chlorite. All public water systems that use chlorine dioxide must comply with the requirements of this subsection.(1) Maximum contaminant level (MCL) for chlorite. The chlorite concentration in the water in the distribution system shall not exceed an MCL of 1.0 milligrams per liter (mg/L).(2) Monitoring requirements for chlorite. Public water systems shall measure the chlorite concentration at locations and intervals specified in the system's monitoring plan. All samples must be collected during normal operating conditions.(A) Each plant using chlorine dioxide must monitor the chlorite concentration in the water entering the distribution system at least once each day. The monitoring frequency at the entry point to the distribution system may not be reduced.(B) Each plant using chlorine dioxide must monitor the chlorite concentration in the water within the distribution system at each of the following three locations: at a location near the first customer of a plant using chlorine dioxide; at a location representative of the average residence time in the distribution system; and at a location reflecting maximum residence time in the distribution system. The group of three samples must be collected on the same day and is called a "three-sample set."(i) Each system must collect at least one three-sample set each month.(ii) If the chlorite concentration entering the distribution system exceeds 1.0 mg/L, the system must collect a three-sample set within 24 hours.(iii) The frequency of chlorite monitoring in the distribution system may be reduced to one three-sample set per quarter if none of the entry point or distribution system samples tested during the preceding 12 months contained a chlorite concentration above 1.0 mg/L. A system must revert to the monthly monitoring frequency if the chlorite concentration exceeds 1.0 mg/L in any sample.(3) Analytical requirements for chlorite. Analytical procedures required by this section shall be performed in accordance with the requirements of §290.119 of this title (relating to Analytical Procedures).(A) The chlorite concentration of the water entering the distribution system must be analyzed at a facility approved by the executive director. The analysis must have a minimum accuracy of 0.05 mg/L.(B) The chlorite concentration of the water within the distribution system must be analyzed using ion chromatography at a facility accredited by the executive director.(4) Reporting requirements for chlorite. Public water systems that are subject to the provisions of this subsection must ensure the executive director is provided with the results of any test, measurement, or analysis required by this section.(A) Systems using chlorine dioxide must submit a Chlorine Dioxide Monthly Operating Report (commission Form 0690) by the tenth day of the month following the end of the reporting period.(B) Except where a shorter period is specified in this section, a public water system shall ensure the executive director is provided with a copy of the results of any chlorite test, measurement, or analysis required by paragraph (2)(B) of this subsection within the first ten days following the end of the required monitoring period or ten days following receipt of the results of such test, measurement, or analysis whichever occurs first.(C) Reports and analytical results must be mailed to the Water Supply Division, MC 155, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087.(5) Compliance determination for chlorite. Compliance with the requirements of this subsection shall be based on the following criteria.(A) A public water system that fails to conduct the monitoring tests required by this subsection commits a monitoring violation.(B) A public water system that fails to report the results of the monitoring tests required by this subsection commits a reporting violation.(C) A public water system commits an MCL violation if the arithmetic average of any three-sample set collected in the distribution system exceeds the MCL for chlorite.(D) A public water system that fails to do a required public notice or certify that the public notice has been performed commits a public notice violation.(6) Public notification requirements for chlorite. A public water system that violates the requirements of this subsection must notify the executive director and the system's customers.(A) A public water system that violates the MCL for chlorite shall notify the executive director by the end of the next business day and the customers in accordance with the requirements of §290.122(b) of this title (relating to Public Notification).(B) A public water system which fails to conduct the monitoring required by this subsection must notify its customers of the violation in accordance with the requirements of §290.122(c) of this title.(b) Bromate. Community and nontransient, noncommunity public water systems that use ozone must comply with the requirements of this subsection beginning on January 1, 2002.(1) MCL for bromate. The concentration of bromate at the entry point to the distribution system shall not exceed an MCL of 0.010 mg/L.(2) Monitoring requirements for bromate. Each plant using ozone must measure the bromate concentration in the water entering the distribution system at least once each month. The monitoring frequency at the entry point to the distribution system may not be reduced. Samples shall be collected when the ozonation system is operating under normal conditions and at locations and intervals specified in the system's monitoring plan.(3) Analytical requirements for bromate. Analytical procedures required by this section shall be performed in accordance with §290.119 of this title. Testing for bromate shall be performed at a laboratory certified by the executive director.(4) Reporting requirements for bromate. The owner or operator of a public water system must ensure the executive director is provided with a copy of the results of any test, measurement, or analysis required by this subsection. The copies must be submitted within the first ten days following the month in which the result is received by the public water system, or the first ten days following the end of the required monitoring period as provided by this subsection, whichever occurs first. The copies must be mailed to the Water Supply Division, MC 155, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087.(5) Compliance determination for bromate. Compliance with the requirements of this subsection shall be determined using the following criteria.(A) A system that fails to monitor in accordance with this section commits a monitoring violation. Failure to monitor will be treated as a violation for the entire period covered by the annual average.(B) A public water system that fails to report the results of the monitoring tests required by this subsection commits a reporting violation.(C) A public water system violates the MCL for bromate if, at the end of any quarter, the running annual average of monthly averages, computed quarterly, exceeds the maximum contaminant level specified in paragraph (1) of this subsection.(D) A public water system that fails to do a required public notice or certify that the public notice has been performed commits a public notice violation.(E) A public water system that fails to complete 12 consecutive months' monitoring, compliance with the MCL for the last four-quarter compliance period must be based on an average of the available data.(6) Public notification requirements for bromate. A public water system that violates the requirements of this subsection must notify the water system's customers and the executive director.(A) A public water system that violates the MCL for bromate shall notify the customers in accordance with the requirements of §290.122(b) of this title.(B) A public water system which fails to conduct the monitoring required by this subsection must notify its customers of the violation in accordance with the requirements of §290.122(c) of this title.</content><note type="source"><p>Source Note: The provisions of this §290.114 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.115"><num value="290.115">§290.115</num><heading>Stage 2 Disinfection Byproducts (TTHM and HAA5)</heading><content>(a) Applicability for total trihalomethanes (TTHM) and haloacetic acids (group of five) (HAA5). All community and nontransient, noncommunity water systems shall comply with the requirements of this section for TTHM and HAA5.(1) Systems must comply with the initial monitoring requirements starting on the dates given in subsection (c) of this section.(2) Systems must comply with all of the additional requirements in this section starting on the date shown in the table entitled "Date to Start Stage 2 Compliance."Attached Graphic(A) Systems required to conduct quarterly monitoring, must begin monitoring in the first full calendar quarter that includes the compliance date in the table titled "Date to Start Stage 2 Compliance." (B) Systems required to conduct routine monitoring less frequently than quarterly must begin monitoring in the calendar month approved by the executive director in their Initial Distribution System Evaluation (IDSE) report or revised monitoring plan identifying Stage 2 sample sites.(3) Systems must complete their monitoring plan for the additional Stage 2 TTHM and HAA5 requirements according to §290.121 of this title (relating to Monitoring Plans) before the date shown in the table entitled "Date to Start Stage 2 Compliance."(b) Maximum contaminant levels (MCL) and operational evaluation levels (OELs) for TTHM and HAA5. Systems shall comply with MCLs and OELs.(1) The locational running annual average (LRAA) concentration of TTHM and HAA5 shall not exceed the MCLs. A public water system that exceeds a MCL shall determine compliance as described in subsection (f) of this section.(A) The MCL for TTHM is 0.080 milligrams/liter (mg/L).(B) The MCL for HAA5 is 0.060 mg/L.(2) The OEL at any monitoring location is the sum of the two previous quarters' results plus twice the current quarter's result, divided by 4 to determine an average. A public water system that exceeds an OEL shall perform operation evaluation monitoring and reporting described in subsection (e) of this section.(A) The OEL for TTHM is 0.080 mg/L.(B) The OEL for HAA5 is 0.060 mg/L.(c) Monitoring requirements for TTHM and HAA5. Monitoring shall be performed at locations and frequency specified in the system's monitoring plan as approved by the executive director. The executive director may require changes to a system's sampling locations. The executive director may require sampling at additional sampling locations. (1) Monitoring locations. Systems must establish Stage 2 compliance monitoring sites throughout the distribution system at locations with the potential for relatively high disinfection byproduct formation. Systems must determine Stage 2 compliance monitoring locations by the dates shown in the table titled "Date to Establish Stage 2 Sites."Attached Graphic(A) Systems that perform IDSE sampling in accordance with paragraph (5) of this subsection must use the IDSE and Stage 1 results to set Stage 2 compliance monitoring sites.(B) Systems that do not perform IDSE sampling must set Stage 2 compliance monitoring sites through consultation with the executive director in accordance with this subparagraph.(i) Systems required to sample at the same number of sites under Stage 1 and Stage 2, can use the Stage 1 sites for Stage 2 compliance monitoring.(ii) Systems required to sample at more sites under Stage 2 than Stage 1 must identify Stage 2 sites in addition to the existing Stage 1 sites. Systems must identify additional sites representing areas of the distribution system with potentially high TTHM or HAA5 levels and provide the rationale for identifying these locations as having high levels of TTHM or HAA5. The required number of compliance monitoring locations must be identified.(iii) Systems required to sample at fewer sites under Stage 2 than Stage 1 must identify which locations will be used for Stage 2. Stage 2 sites will be selected by alternating selection of Stage 1 locations representing the highest TTHM levels and highest HAA5 levels until the required number of compliance monitoring locations have been identified.(C) The protocol given in 40 Code of Federal Regulations (CFR) §141.605(c) - (e) for selecting Stage 2 sample sites is hereby adopted by reference.(D) To change monitoring locations, a system must replace existing compliance monitoring locations with the lowest LRAA with new locations that reflect the current distribution system locations with expected high TTHM or HAA5 levels. Changes must be approved by the executive director and included in the monitoring plan.(2) Monitoring frequency and number of sample sites. Routine sampling frequency and number of sample sites are given in the following table, titled "Routine Stage 2 Monitoring Frequency and Number of Sites." Systems must take all routine compliance TTHM and HAA5 samples during normal operating conditions.Attached Graphic(3) Reduced monitoring for TTHM and HAA5. Monitoring may be reduced when the LRAA is less than or equal to 0.040 mg/L for TTHM and less than or equal to 0.030 mg/L for HAA5 at all Stage 2 compliance monitoring locations. The Stage 2 reduced sampling frequency and number of sample sites are given in the following table, titled "Reduced Stage 2 Monitoring Frequency and Number of Sites."Attached Graphic(A) Only data collected under the provisions of §290.113 of this title (relating to Stage 1 Disinfection Byproducts (TTHM and HAA5)) and under this section may be used to qualify for reduced monitoring. (B) In order to remain on reduced monitoring, a system must meet the applicable conditions of this subparagraph.(i) Systems with annual or less frequent reduced monitoring qualify to remain on reduced monitoring as long as each TTHM sample is less than or equal to 0.060 mg/L and each HAA5 sample is less than or equal to 0.045 mg/L.(ii) Systems on quarterly reduced monitoring qualify to remain on reduced monitoring as long as the TTHM LRAA is less than or equal to 0.040 mg/L and the HAA5 LRAA is less than or equal to 0.030 mg/L at each monitoring location.(iii) To qualify for and remain on reduced monitoring, the source water annual average Total Organic Carbon (TOC) level, before any treatment, must be less than or equal to 4.0 mg/L at each treatment plant treating surface water or groundwater under the direct influence of surface water, based on monitoring conducted under §290.112(c)(2)(C) of this title (relating to Total Organic Carbon (TOC)).(C) Systems will be returned to routine monitoring:(i) if the LRAA at any monitoring location exceeds either 0.040 mg/L for TTHM or 0.030 mg/L for HAA5 based on quarterly monitoring, or(ii) if the annual (or triennial) sample at any location exceeds either 0.060 mg/L for TTHM or 0.045 mg/L for HAA5, or(iii) if the source water annual average TOC level, before any treatment, exceeds 4.0 mg/L at any treatment plant treating surface water or groundwater under the direct influence of surface water.(D) The executive director may return a system on reduced monitoring to routine monitoring at any time.(E) A system that is on reduced Stage 1 monitoring in accordance with §290.113(c)(4) of this title that has monitoring locations for Stage 2 different from those under Stage 1 must initiate routine monitoring in accordance with paragraph (2) of this subsection on the schedule given in subsection (a) of this section.(F) A system that is on reduced monitoring in accordance with §290.113(c)(4) of this title may remain on reduced monitoring after the dates identified in subsection (a)(2) of this section only if the system:(i) received a very small system (VSS) IDSE waiver under paragraph (5)(A) of this subsection or received a 40/30 IDSE waiver under paragraph (5)(B) of this subsection,(ii) meets the reduced monitoring criteria in subparagraph (B) of this paragraph, and(iii) is approved to use the same monitoring locations under Stage 1 and Stage 2.(G) The executive director may choose to perform calculations and determine whether the system is eligible for reduced monitoring in lieu of having the system report that information.(4) Increased monitoring for TTHM and HAA5. The executive director may increase monitoring in accordance with this paragraph.(A) A system required to routinely monitor at a particular location annually or less frequently than annually under paragraph (2) of this subsection must increase monitoring to quarterly dual sample sets (every 90 days) at all locations if any TTHM compliance sample is greater than 0.080 mg/L or if any HAA5 compliance sample is greater than 0.060 mg/L at any location.(B) The executive director may return a system on increased quarterly monitoring to routine monitoring after at least four consecutive quarters if the LRAA for every monitoring location is less than or equal to 0.060 mg/L for TTHM and less than or equal to 0.045 mg/L for HAA5.(C) A system that is on increased monitoring under §290.113 of this title must remain on increased monitoring until the system qualifies for a return to routine monitoring under subparagraph (B) of this paragraph. The increased monitoring schedule must be conducted at the Stage 2 monitoring locations approved under paragraph (1) of this subsection, beginning on the date identified in subsection (a)(2) of this section.(5) IDSE requirements. All community systems of any size and nontransient, noncommunity systems that serve at least 10,000 people must comply with these IDSE requirements.(A) The executive director may grant a VSS IDSE monitoring waiver to systems that serve fewer than 500 people. Systems that receive a VSS IDSE monitoring waiver are not required to do IDSE monitoring. Systems must be compliant with all of the Stage 1 monitoring requirements of §290.113 of this title to be eligible for a VSS IDSE waiver.(B) The executive director may grant a 40/30 IDSE monitoring waiver to IDSE monitoring to systems with levels for TTHM less than 0.040 mg/L and levels for HAA5 less than 0.030 mg/L. Systems that receive a 40/30 IDSE monitoring waiver are not required to do IDSE monitoring. Systems must be compliant with all of the Stage 1 monitoring requirements of §290.113 of this title to be eligible for a 40/30 IDSE waiver. The timing of samples that all need to be less than 0.040 mg/L and 0.030 mg/L respectively for TTHM and HAA5 are given in the following table, titled "Timing of Stage 1 Samples Evaluated for 40/30 Initial Distribution System Evaluation (IDSE) Waiver."Attached Graphic(i) To qualify for a 40/30 IDSE waiver a system must certify to the executive director that every individual sample taken under §290.113 of this title were less than 0.040 mg/L for TTHM and less than 0.030 mg/L for HAA5, and must have not had any TTHM or HAA5 monitoring violations during the period specified in subsection (a) of this section.(ii) To qualify for a 40/30 IDSE waiver, a system must submit compliance monitoring results, distribution system schematics, and recommended Stage 2 compliance monitoring locations to the executive director upon request. The executive director may require a system that fails to submit the requested information to perform IDSE sampling.(iii) The executive director may still require a system that meets the 40/30 IDSE waiver or VSS IDSE waiver requirements to do IDSE sampling under subparagraph (C) of this paragraph.(C) Systems that must perform IDSE sampling must submit any needed documentation for waivers, produce an IDSE Plan, do IDSE sampling, and report the IDSE results to the executive director on the schedule in the following table titled "Initial Distribution Schedule Evaluation (IDSE) Schedule."Attached Graphic(i) The IDSE plan has required elements.(I) The IDSE plan must include a schematic of the distribution system (including distribution system entry points and their sources, and storage facilities), with notes indicating locations and dates of all projected standard monitoring, and also Stage 1 compliance monitoring under §290.113 of this title.(II) The IDSE plan must include justification of IDSE monitoring location selection and a summary of data used to justify IDSE monitoring location selection.(III) The IDSE plan must include the system type and population served by the system.(ii) Systems must do required IDSE sampling in accordance with this clause.(I) Systems must monitor at the number and type of sites indicated in the following table titled "Number and Type of Initial Distribution System Evaluation (IDSE) Sample Sites:"Attached Graphic(II) Systems must collect dual sample sets at each monitoring location. One sample in the dual sample set must be analyzed for TTHM. The other sample in the dual sample set must be analyzed for HAA5.(III) IDSE sample locations must be different than the existing Stage 1 monitoring locations established under §290.113 of this title.(IV) IDSE sample locations must be distributed throughout the distribution system.(V) Systems must monitor at the frequency indicated in the following table titled "Frequency of Initial Distribution System Evaluation (IDSE) Monitoring:"Attached Graphic(VI) The IDSE monitoring frequency and locations may not be reduced.(iii) The IDSE report must comply with the elements in this clause.(I) The IDSE report must include all TTHM and HAA5 analytical results from Stage 1 compliance monitoring under §290.113 of this title and all IDSE sample results and locational running annual averages presented in a tabular or spreadsheet format acceptable as described in Texas Commission on Environmental Quality regulatory guidance number 384: "How to Develop a Monitoring Plan for a Public Water System."(II) If changed from the IDSE plan submitted under clause (ii) of this subparagraph, the IDSE report must also include an updated distribution system map, documentation verifying the population served, and an updated list of sources including their water type.(III) The IDSE report must include an explanation of any deviations from the approved IDSE plan.(IV) The IDSE report must recommend and justify Stage 2 compliance monitoring locations consistent with paragraph (1) of this subsection. The recommended Stage 2 compliance monitoring locations must be listed in a Stage 2 sample plan as part of the system's monitoring plan.(V) The IDSE report must include recommendations and justification for when Stage 2 samples should be collected.(iv) The executive director may approve a system specific study that meets the requirements in 40 CFR §141.602 to comply with IDSE sampling requirements. The commission hereby adopts the requirements of 40 CFR §141.602 by reference.(D) The executive director may require a system to perform IDSE sampling or a system specific study for any reason. The executive director may require a system to perform IDSE sampling or a system specific study even if the system meets the criteria for an IDSE waiver. The executive director may require new systems and systems with a change in population or system type to perform IDSE sampling or a system specific study.(d) Analytical requirements for TTHM and HAA5. Analytical procedures required by this section shall be performed in accordance with §290.119 of this title (relating to Analytical Procedures). Testing for TTHM and HAA5 shall be performed at a laboratory accredited by the executive director.(e) Reporting requirements for TTHM and HAA5. Public water systems must submit reports related to TTHM and HAA5 to the executive director. Reports must be mailed to the Water Supply Division, MC 155, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087.(1) The owner or operator of a public water system must ensure the executive director is provided with a copy of the results of any test, measurement, or analysis required by this subsection. The copies must be submitted within the first ten days following the month in which the result is received by the public water system, or the first ten days following the end of the required monitoring period as provided by this subsection, whichever occurs first.(A) The owner or operator of a public water system is responsible for reporting the following information for each monitoring location to the executive director within ten days of the end of any quarter in which monitoring is required:(i) number of samples taken during the last quarter;(ii) date and results of each sample taken during the last quarter;(iii) arithmetic average of quarterly results for the last four quarters for each monitoring location (LRAA), beginning at the end of the fourth calendar quarter that follows the compliance date and at the end of each subsequent quarter;(iv) whether the MCL was violated at any monitoring location; and(v) any OELs that were exceeded during the quarter and, if so, the location and date, and the calculated TTHM and HAA5 levels.(B) If the LRAA based on fewer than four quarters would cause the MCL to be exceeded regardless of the monitoring results of subsequent quarters, the system must report a potential MCL violation as part of the first report due following the compliance date or anytime thereafter that this determination is made. A system required to conduct monitoring at a frequency that is less than quarterly must make compliance calculations beginning with the first compliance sample taken after the compliance date, unless the system is required to conduct increased monitoring under subsection (c)(4) of this section.(C) A system that treats surface water or groundwater under the direct influence of surface water that seeks to qualify for or remain on reduced TTHM and HAA5 monitoring must measure and report TOC monthly in accordance with §290.112 of this title and distribution system disinfection levels in accordance with §290.110 of this title (relating to Disinfectant Residuals).(2) A system that exceeds an OEL described in subsection (b)(2) of this section must conduct an operation evaluation and submit a written operation evaluation report that meets the requirements of this paragraph.(A) The operation evaluation report must be submitted to the executive director no later than 90 days after being notified of the analytical result that causes the exceedance of the OEL.(B) The operation evaluation report must document an examination of system treatment and distribution operation practices that may contribute to TTHM and HAA5 formation, including:(i) storage tank operations;(ii) excess storage capacity;(iii) distribution system flushing;(iv) changes in sources or source water quality;(v) treatment changes or problems; and(vi) what steps could be considered to minimize future exceedances.(C) If the cause of the OEL exceedance is identifiable the scope of the report may be limited with the approval of the executive director. A request to limit the scope of the evaluation does not extend the schedule in subparagraph (A) of this paragraph for submitting the written report. The executive director's approval to limit the scope of the operation evaluation report must be in writing. The system must keep a copy of the executive director's approval with the completed operation evaluation report.(D) The operation evaluation report must be submitted and approved in writing.(f) Compliance determination for TTHM and HAA5. Compliance with the provisions of this section shall be determined as follows.(1) A public water system violates the MCL for TTHM if any locational running annual average for TTHM exceeds an MCL specified in subsection (b)(1)(A) of this section. A public water system violates the MCL for HAA5 if any locational running annual average for HAA5 exceeds the MCL specified in subsection (b)(1)(B) of this section.(A) Compliance with the MCLs for TTHM and HAA5 shall be based on the LRAA of all samples collected during four consecutive quarters of monitoring. If a single quarterly sample would cause an LRAA exceedance regardless of the results of subsequent quarters, compliance may be based on fewer than four quarters of data. Should a system fail to collect all required samples, compliance will be based on the available data. All samples collected at the sampling sites designated in the public water system's monitoring plan shall be used to compute the quarterly and annual averages unless the analytical results are invalidated by the executive director for technical reasons.(B) Stage 2 MCL compliance determination with LRAAs will start after Stage 2 samples are collected.(i) For systems required to conduct routine quarterly monitoring, compliance calculations will be made starting at the end of the fourth calendar quarter that follows the compliance date in subsection (a)(2) of this section and at the end of each subsequent quarter.(ii) For systems on quarterly monitoring, where the LRAA based on fewer than four quarters would exceed the MCL regardless of the monitoring results of subsequent quarters, compliance will be calculated beginning with the first sample that causes that exceedance. (iii) For systems that are required to monitor less frequently than quarterly, compliance shall be calculated beginning with the first compliance sample taken after the compliance date.(iv) For systems monitoring annually or triennially that start monitoring quarterly in the quarter following an LRAA exceedance, compliance shall be calculated based on the results of all available samples.(C) If a public water system's failure to monitor makes it impossible to determine compliance with the MCL for TTHM or HAA5, the system commits an MCL violation for the entire period covered by the annual average.(D) The executive director may choose to perform calculations and determine MCL exceedances in lieu of having the system report that information.(E) IDSE results will not be used for the purpose of determining compliance with MCLs.(2) A system that fails to monitor in accordance with this section commits a monitoring violation. A system on a quarterly monitoring schedule is in violation of the monitoring requirements for each quarter that it fails to monitor.(3) A system that fails to perform a required operation evaluation under subsection (e)(2) of this section commits a monitoring violation.(4) A public water system that fails to report the results of the monitoring tests required by subsection (e) of this section commits a reporting violation.(5) A system that fails to submit an operation evaluation report as required under subsection (e)(2) of this section commits a reporting violation.(6) A system that fails to perform a required public notification commits a public notification violation.(g) Public notification requirements for TTHM and HAA5. A public water system that violates the treatment technique requirements of this section must notify the executive director and the system's customers.(1) A public water system that commits an MCL violation described in subsection (f)(1) of this section shall report to the executive director and the water system customers in accordance with the requirements of §290.122(b) of this title (relating to Public Notification).(2) A public water system which fails to conduct the monitoring required by subsection (c) of this section must notify its customers of the violation in accordance with the requirements of §290.122(c) of this title.(3) Any IDSE compliance documents required under subsection (c)(5) of this section must be made available to the executive director or the public upon request.(4) Any operation evaluation report required under subsection (e)(2) of this section must be made available to the executive director or the public upon request.(h) Best available technology for TTHM and HAA5. Best available technology for treatment of violations of MCLs in subsection (b) of this section are listed in 40 CFR §141.64(b)(2)(ii) and (iii).</content><note type="source"><p>Source Note: The provisions of this §290.115 adopted to be effective January 9, 2008, 33 TexReg 198; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.116"><num value="290.116">§290.116</num><heading>Groundwater Corrective Actions and Treatment Techniques</heading><content>(a) Applicability. All public water systems that use groundwater, except public water systems that combine all of their groundwater with surface water or with groundwater under the direct influence of surface water prior to treatment as described in §290.111 of this title (relating to Surface Water Treatment), must comply with one or more of the treatment techniques and corrective actions of this section if a raw groundwater source sample collected under §290.109(d)(3)(C)(ii), (4)(B), (C), or (E) of this title (relating to Microbial Contaminants) was positive for fecal indicators, or if a significant deficiency was identified, or if the system is not required to conduct raw groundwater source monitoring because it provides at least 4-log treatment of viruses at each groundwater source. At the discretion of the executive director, a public water system not excluded under this subsection, shall comply with the requirements of this section after exceeding a treatment technique trigger as described in accordance with §290.109 of this title. A public water system shall comply with provisions of §290.109(d)(3)(C)(ii), (4)(B), (C), or (E) of this title except in cases where the executive director determines that the sample collected under §290.109(d)(1) and (2) of this title meets the executive director's criteria for invalidation as described in §290.109(e)(1) of this title. A public water system with a groundwater under the direct influence of surface water (GUI) or surface water/groundwater blended source(s), which provides disinfection and filtration, shall comply with provisions of this section except in cases where the executive director determines that the significant deficiency is in a portion of the distribution system that is served solely by surface water or groundwater under the direct influence of surface water.(1) A groundwater system must provide written notification to the executive director that it is not required to meet the raw groundwater source monitoring requirements under §290.109(d)(4) of this title because it provides at least 4-log treatment of viruses for the specified groundwater source and must begin compliance monitoring in accordance with subsection (c) of this section. The notification must include engineering, operational, and other information required by the executive director to evaluate the submission. If the executive director determines and documents in writing that 4-log treatment of viruses is no longer necessary for a specified groundwater source or if the system discontinues 4-log treatment of viruses before the first connection for any groundwater source, the system must document this in writing and conduct raw groundwater source sampling as required under §290.109(d)(4) of this title. If the public water system discontinues 4-log treatment it shall receive prior approval in writing from the executive director that 4-log treatment is no longer necessary for that groundwater source.(2) A groundwater system that places a groundwater source in service after November 30, 2009, that is not required to meet the raw source monitoring requirements under §290.109(d)(4) of this title because the system provides at least 4-log treatment of viruses for a specified groundwater source must begin compliance monitoring within 30 days of placing the source in service in accordance with subsection (c) of this section. The system must provide written notification to the executive director that it provides at least 4-log treatment of viruses before the first connection for the specified groundwater source. The notification must include engineering, operational, and other information required by the executive director to evaluate the submission. The system must conduct triggered source monitoring under §290.109(d)(4) of this title until the executive director provides written approval of the system's request to provide the 4-log treatment. If the system discontinues 4-log treatment of viruses before the first connection for a groundwater source, the system must conduct raw groundwater source sampling as required under §290.109(d)(4) of this title. If the public water system discontinues 4-log treatment it shall receive prior approval in writing from the executive director that 4-log treatment is no longer necessary for that groundwater source.(b) Groundwater corrective action plan. All public water systems using groundwater must submit a corrective action plan and implement corrective action if a raw groundwater source sample was positive for fecal indicators or if a significant deficiency was identified.(1) If a groundwater source sample was found to be fecal indicator positive or if a significant deficiency was identified, the system must consult with the executive director regarding appropriate corrective action and have an approved corrective action plan in place within 30 days of receiving written notification from a laboratory of the fecal indicator positive source sample collected under §290.109(d)(4) of this title or within 30 days of receiving written notification from the executive director of the identification of a significant deficiency.(2) Within 120 days of receiving written notification from a laboratory of the fecal indicator positive source sample or receiving written notification from the executive director of a significant deficiency, the system must have completed corrective action or be in compliance with an approved corrective action plan and schedule.(3) Any changes to the approved corrective action plan or schedule must be approved by the executive director.(4) The executive director may require interim measures for the protection of public health pending approval of the corrective action plan. The system must comply with these interim measures as well as with any schedules specified by the executive director.(5) Systems that are required to complete corrective action must implement one or more of the procedures in this paragraph and the details of the implementation must be specified in the approved corrective action plan. If subparagraph (A) or (F) of this paragraph is selected as part of the corrective action plan, then subparagraph (B), (C), (D), or (E) of this paragraph must also be selected.(A) The system may disinfect the groundwater source where the fecal indicator positive source sample was collected following the American Water Works Association (AWWA) standards for well disinfection and start monthly fecal indicator sampling at that source within 30 days after well disinfection. The executive director may discontinue the monthly source sampling requirement if corrective action is sufficient.(B) The system may eliminate the groundwater source that was found to be fecal indicator positive and provide an alternate groundwater source if necessary. Eliminated groundwater sources must be disconnected from the distribution system until the contamination is corrected and the executive director approves it for use.(C) The system may identify and eliminate the source of fecal contamination followed by well disinfection according to AWWA well disinfection standards and begin monthly fecal indicator sampling within 30 days after well disinfection. The executive director may allow the system to discontinue the monthly source sampling requirement after making a determination that corrective action is sufficient.(D) The system may provide treatment that reliably achieves at least 4-log treatment of viruses using inactivation, removal or an executive director-approved combination of inactivation and removal before the first connection of the groundwater source.(E) Correct all significant deficiencies.(F) Assessment source monitoring for a period of 12 months or a time period specified by the executive director from the raw groundwater source in accordance with §290.109(d)(4)(E) of this title.(c) Microbial inactivation and removal requirements. A public water system that treats groundwater in response to a fecal indicator positive source sample or significant deficiency, instead of conducting raw groundwater source monitoring, shall meet minimum requirements demonstrating at least 4-log treatment of viruses before the water is distributed to the first connection of the specified groundwater source.(1) Monitoring requirements for chemical disinfectants. Groundwater systems shall monitor the performance of the disinfection facilities to ensure that appropriate disinfectant levels are maintained every day the specified source serves the public. All monitoring conducted pursuant to the requirements of this section must be conducted at sites designated in the system's monitoring plan in accordance with §290.121 of this title (relating to Monitoring Plans).(A) Groundwater systems serving a population greater than 3,300 must continuously monitor the residual disinfectant concentration in accordance with the analytical methods specified in 40 Code of Federal Regulations (CFR) §141.74(a)(2) at a location approved by the executive director and must record the lowest residual disinfectant concentration every day the groundwater source serves the public.(i) The groundwater system must maintain the executive director-approved minimum specified disinfectant residual every day the groundwater system serves water from the specified groundwater source to the public. If there is a failure in the continuous monitoring equipment, the groundwater system must conduct grab sampling every four hours until the continuous monitoring equipment is returned to service.(ii) The system must resume continuous residual disinfectant monitoring within 14 days.(B) Groundwater systems serving a population of 3,300 or fewer must monitor the disinfectant residual in accordance with the analytical methods specified in 40 CFR §141.74(a)(2) in each disinfection zone at least once each day that water from the specified groundwater source is served to the public during either a time when peak hourly raw water flow rates are occurring or at another time specified by the executive director. The system must record and maintain the disinfectant residual every day the system serves water from the groundwater source to the public. The system must collect a daily grab sample during the hour of peak flow or at another time specified by the executive director. If any daily grab sample measurement falls below the executive director-approved minimum specified disinfectant residual, the groundwater system must collect follow-up samples every four hours until the residual disinfectant concentration is restored to the executive director-approved level. Alternatively, a groundwater system that serves 3,300 or fewer people may monitor the residual disinfectant concentration continuously and meet the requirements of subparagraph (A) of this paragraph.(C) Disinfection contact time will be based on tracer study data or a theoretical analysis submitted by the system owner or their designated agent and approved by the executive director.(D) Groundwater treatment plants that fail to demonstrate an appropriate level of treatment must repeat these tests at four-hour or shorter intervals until compliance has been reestablished.(2) Monitoring and operating requirements for commission-approved alternative treatment, including ultraviolet light (UV) disinfection facilities, membrane systems, and other methods that can obtain 4-log inactivation or removal of viruses.(A) Public water systems shall monitor the UV intensity as measured by a UV sensor, lamp status, the flow rate through the unit, and other parameters prescribed by the executive director as specified in §290.42(g)(5) of this title (relating to Water Treatment) to ensure that the units are operating within validated conditions.(B) Public water systems shall monitor and record membrane system performance in accordance with executive director specified requirements.(3) Analytical requirements. All monitoring required by this section must be conducted at a facility approved by the executive director and using methods that conform to the requirements of §290.119 of this title (relating to Analytical Procedures).(A) The pH analysis must be conducted using a pH meter with a minimum accuracy of plus or minus 0.1 pH units.(B) The temperature of the water must be measured using a thermometer or thermocouple with a minimum accuracy of plus or minus 0.5 degrees Celsius.(C) The free chlorine or chloramine residual (measured as total chlorine) must be measured to a minimum accuracy of plus or minus 0.1 milligrams per liter (mg/L). Color comparators may be used for distribution system samples only. When used, a color comparator must have current reagents, an unfaded and clear color comparator, a sample cell that is not discolored or stained, and must be properly stored in a cool, dark location where it is not subjected to conditions that would result in staining. The color comparator must be used in the correct range. If a sample reads at the top of the range, the sample must be diluted with chlorine-free water, then a reading taken and the resulting residual calculated.(D) The chlorine dioxide residual must be measured to a minimum accuracy of plus or minus 0.05 mg/L using one of the following methods:(i) Amperometric titrator with platinum-platinum electrodes; or(ii) Lissamine Green B.(E) The ozone residual must be measured to a minimum accuracy of plus or minus 0.05 mg/L using an indigo method that uses a colorimeter or spectrophotometer.(F) Membrane system integrity monitoring shall be conducted in accordance with executive director specified requirements.(4) Recordkeeping requirements for microbial inactivation and removal treatment. Groundwater systems, including wholesale, and consecutive systems, regulated under this subsection must comply with §290.46 of this title (relating to Minimum Acceptable Operating Practices for Public Drinking Water Systems).(d) Reporting requirements. Groundwater systems conducting 4-log treatment instead of conducting raw groundwater source monitoring or required corrective action in response to a fecal indicator positive source sample, or a significant deficiency, must report to the executive director in accordance with this subsection.(1) A groundwater system required to conduct compliance monitoring for chemical disinfectants must complete a Groundwater Treatment Monthly Operating Report (commission Form 20362) for groundwater disinfection facilities monthly. Groundwater systems must maintain the reports on site and make them available to the executive director upon request.(2) A groundwater system must provide written notification to the executive director that it is not required to meet the raw groundwater source monitoring requirements under §290.109(d)(4) of this title because it provides at least 4-log treatment of viruses for a specified groundwater source and must begin compliance monitoring in accordance with subsection (c) of this section. The notification must include engineering, operational, and other information required by the executive director to evaluate the submission.(3) A groundwater system required to complete corrective action under subsection (b) of this section must notify the executive director within 30 days of completing the corrective action.(4) If a groundwater system is subject to the triggered source monitoring requirements of §290.109(d)(4)(A) of this title and does not conduct source monitoring, the system must provide written documentation that it was providing 4-log treatment of viruses for the specified groundwater source or that it met the criteria set out in §290.109(d)(4)(D) of this title within 30 days of the positive distribution coliform sample.(5) A groundwater system conducting compliance monitoring under subsection (a) of this section must notify the executive director any time the system fails to meet any executive director-specified requirements (including, but not limited to, minimum residual disinfectant concentration, and alternative treatment operating criteria) if the operation in accordance with the criteria or requirements is not restored within four hours. The system must notify the executive director as soon as possible, but no later than the end of the next business day.(6) A groundwater system required to conduct integrity monitoring for membrane systems shall complete the executive director specified reports. The reports shall be maintained in accordance with executive director specified requirements.(e) Compliance determination. In accordance with this subsection, the executive director shall determine compliance for groundwater systems required to conduct corrective action within 120 days, or pursuant to a groundwater corrective action plan.(1) A groundwater system is in violation of the treatment technique requirement if it does not complete corrective action in accordance with the executive director-approved corrective action plan or any interim measures required by the executive director.(2) A groundwater system is in violation of the treatment technique requirement if it is not in compliance with the executive director-approved corrective action plan and schedule.(3) A groundwater system subject to the requirements of subsection (c) of this section that fails to maintain at least 4-log treatment of viruses is in violation of the treatment technique requirement if the failure is not corrected within four hours. The groundwater system must notify the executive director as soon as possible but no later than the next business day if there is a failure in maintaining the 4-log treatment for more than four hours.(4) A groundwater system that fails to conduct the disinfectant or membrane system integrity monitoring required under subsection (c) of this section commits a monitoring violation.(5) A groundwater system that fails to report the results of the disinfectant or membrane system integrity monitoring required under subsection (c) of this section commits a reporting violation.(6) A groundwater system that fails to issue a required public notice or certify that the public notice has been performed commits a public notice violation.(f) Public notification. A groundwater system that commits a treatment technique, monitoring, or reporting violation or situation as identified in this section must notify its customers of the violation in accordance with the requirements of §290.122 of this title (relating to Public Notification).(1) Special notice to the public of significant deficiencies or source water fecal contamination for community systems. In addition to the applicable public notice requirements of §290.122(a) of this title, a community groundwater system that receives notice from the executive director of a significant deficiency or notification of a fecal indicator positive groundwater source sample that is not invalidated under §290.109(e)(2) of this title must inform the public served by the water system of the fecal indicator positive source sample or of any significant deficiency that has not been corrected in its Consumer Confidence Report as specified in §290.272(g)(7) and (8) of this title (relating to Content of the Report). The system shall continue to inform the public annually until the significant deficiency is corrected or the fecal contamination in the groundwater source is determined by the executive director to be corrected under subsection (b)(2) of this section.(2) Special notice to the public of significant deficiencies or source water fecal contamination for noncommunity systems. In addition to the applicable public notice requirements of §290.122(a) of this title, a noncommunity groundwater system that receives notice from the executive director of a significant deficiency or notification of a fecal indicator positive groundwater source sample that is not invalidated under §290.109(e)(2) of this title must inform the public served by the water system of any significant deficiency that has not been corrected within 12 months of being notified by the executive director, or earlier if directed by the executive director. The system must continue to inform the public annually until the significant deficiency is corrected. The information must include:(A) posting the notice in conspicuous locations throughout the distribution system frequented by persons served by the system, or by mail or direct delivery to each customer and service connection; and(B) any other method reasonably calculated to notify other persons served by the system, if they would not normally be notified by the methods set out in subparagraph (A) of this paragraph. Such persons may include those who may not see a posted notice because the notice is not in a location they routinely frequent. Other methods may include publication in a local newspaper, newsletter, or e-mail; or, delivery of multiple copies in central locations (e.g., community centers).(C) If directed by the executive director, a noncommunity groundwater system with significant deficiencies that have been corrected must inform its customers of the significant deficiencies, how deficiencies were corrected, and the dates of correction.</content><note type="source"><p>Source Note: The provisions of this §290.116 adopted to be effective January 9, 2008, 33 TexReg 198; amended to be effective November 8, 2012, 37 TexReg 8849; amended to be effective July 30, 2015, 40 TexReg 4769; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.117"><num value="290.117">§290.117</num><heading>Regulation of Lead and Copper</heading><content>(a) Applicability. The requirements of this section apply to community and nontransient, noncommunity public water systems. These regulations establish requirements for monitoring, reporting, corrosion control studies and treatment, source water treatment, lead service line replacement, and public education. Public water systems must control the levels of lead and copper in drinking water by controlling the corrosivity of the water. New water systems will be required to meet the requirements of this section when notified by the executive director.(b) Compliance levels and ranges. Community and nontransient, noncommunity systems must meet designated lead and copper levels and water quality parameter ranges.(1) Lead and copper action levels. Public water systems must meet action levels for lead and copper in drinking water.(A) Lead action level. The lead action level is 0.015 milligrams per liter (mg/L). The action level is exceeded if the "90th percentile" lead level exceeds 0.015 mg/L in any monitoring period. The 90th percentile lead level is exceeded when more than 10% of tap water samples have a concentration over the action level.(B) Copper action level. The copper action level is 1.3 mg/L. The action level is exceeded if the concentration of copper in more than 10% of tap water samples collected during any monitoring period is greater than 1.3 mg/L.(2) Reduced lead and copper monitoring levels. Systems with levels of lead and copper less than the reduced monitoring levels may be eligible for reduced monitoring under subsections (c) - (e) of this section.(A) The reduced monitoring level for lead is 0.005 mg/L.(B) The reduced monitoring level for copper is 0.65 mg/L.(C) A system with 90th percentile levels of lead and copper less than or equal to the reduced monitoring levels in two consecutive six-month initial or routine tap sampling periods may be eligible for reduced monitoring under subsections (c) - (e) of this section.(3) Lead and copper Practical Quantitation Levels (PQLs). The PQLs for lead and copper are defined by this paragraph.(A) The PQL for lead is 0.005 mg/L.(B) The PQL for copper is 0.050 mg/L.(4) Optimal water quality parameter (OWQP) ranges. The executive director shall set approved OWQP ranges for systems based on corrosion control studies described in subsection (f)(1) of this section. All systems that exceed an action level for lead or copper based on the 90th percentile are required to have approved OWQP ranges. Systems that serve more than 50,000 people that exceed the PQL for lead based on the 90th percentile are required to have approved OWQP ranges. Systems with approved water quality parameter ranges shall operate within the approved OWQP ranges at all times.(A) OWQP ranges shall include all elements contained in this subparagraph.(i) OWQPs shall include a minimum value or a range of values for negative log of hydrogen ion concentration (pH) measured at each entry point to the distribution system.(ii) OWQPs shall include a minimum pH value, measured in all tap samples. Such value shall be equal to or greater than 7.0, unless the executive director determines that meeting a pH level of 7.0 is not technologically feasible or is not necessary for the system to optimize corrosion control.(iii) If a corrosion inhibitor is used, OWQPs shall include a minimum concentration or a range of concentrations for the inhibitor, measured at each entry point to the distribution system and in all tap samples, that the executive director determines is necessary to form a passivating film on the interior walls of the pipes of the distribution system.(iv) If alkalinity is adjusted as part of optimal corrosion control treatment, OWQPs shall include a minimum concentration or a range of concentrations for alkalinity, measured at each entry point and in all distribution samples.(v) If calcium carbonate stabilization is used as part of corrosion control, OWQPs shall include a minimum concentration or a range of concentrations for calcium, measured in all distribution samples.(B) Systems that must perform corrosion controls studies under subsection (f) of this section shall submit proposed system-specific OWQP ranges in writing for the executive director's approval.(C) The executive director shall review and designate OWQPs in writing within six months after receipt of the system's recommended OWQPs.(5) Deemed to have optimized corrosion control. A system may be considered deemed to have optimized corrosion control if it meets the requirements of this paragraph.(A) A system that serves 50,000 or fewer people may be deemed to have optimized corrosion control if the system meets the lead and copper action levels in two consecutive initial or routine monitoring periods.(B) A system that serves more than 50,000 people may be deemed to have optimized corrosion control if the difference between the 90th percentile lead level and the highest entry point lead level is less than the PQL and the system meets the copper action levels in two consecutive initial or routine monitoring periods.(C) Those systems whose highest source water lead level is below the method detection limit may also be deemed to have optimized corrosion control under this paragraph if the 90th percentile tap water lead level is less than or equal to the PQL for lead for two consecutive six-month monitoring periods.(D) Any water system may be deemed by the executive director to have optimized corrosion control treatment if the system demonstrates, to the satisfaction of the executive director, that it has conducted activities equivalent to the corrosion control requirements of this section, including all applicable monitoring requirements.(E) Any system that fails to perform required monitoring or reporting, operates outside any approved OWQP ranges, or exceeds a lead or copper action level shall no longer be deemed to have optimized corrosion control.(6) Maximum permissible levels (MPLs) for source water lead. The executive director shall designate MPLs for lead and copper at entry points to the distribution system for systems that are required to install source water treatment under subsection (g) of this section. Such MPLs shall reflect the contaminant-removal capability of the source water treatment properly operated and maintained. The executive director shall determine MPLs based on source water samples taken by the water system before and after the system installs the approved source water treatment. The executive director will set MPLs in writing, explaining the basis of that decision, within six months after the system completes follow-up tap sampling for lead and copper after source water treatment installation under subsection (g) of this section. (c) Lead and copper tap sampling locations and frequency. Community and nontransient, noncommunity public water systems shall sample at sites approved by the executive director and at a frequency set by the executive director. Systems shall conduct initial tap sampling until the system either exceeds the lead or copper action level or becomes eligible for reduced monitoring.(1) Lead and copper tap sampling locations. Systems shall sample at sites approved by the executive director and documented in the system's monitoring plan required under §290.121 of this title (relating to Monitoring Plans).(A) Number of tap sample sites. The minimum number of sample sites required for initial, routine, or reduced lead and copper tap sampling are listed in the following table, entitled "Required Number of Lead and Copper Tap Sample Sites:"Attached Graphic(B) Suitable sample taps. All sites from which lead and copper tap samples are collected shall be selected from a pool of targeted sampling sites identified through a materials survey of the distribution system. Sample sites shall be selected first at tier 1, then tier 2, then tier 3 locations as defined in subparagraph (D) of this paragraph. Sampling sites may not include faucets that have point-of-use or point-of-entry treatment devices designed to remove inorganic chemicals.(C) Material survey and sample site selection form. Sample sites shall be representative of the distribution system and specifically represent areas of the system most vulnerable to corrosion of lead and copper into the water. The system must maintain a current copy of their Material Survey Form with the monitoring plan.(i) Material survey. Systems shall perform a materials survey to select sample appropriate tap sampling sites using the Material Survey Form and Instructions (TCEQ Form Number 20467). The material survey shall be submitted in writing for executive director review and approval. In performing the material survey, the system shall review the sources of information listed in this clause in order to identify sampling sites. In addition, the system shall seek to collect such information where possible in the course of its normal operations (for example, while checking service line materials when reading water meters or performing maintenance activities). Sources of information that must be reviewed include:(I) all plumbing codes, permits, and records in the files of the building department(s) which indicate the plumbing materials that are installed within publicly and privately owned structures connected to the distribution system;(II) all inspections and records of the distribution system that indicate the material composition of the service connections that connect a structure to the distribution system;(III) all existing water quality information, which includes the results of all prior analyses of the system or individual structures connected to the system, indicating locations that may be particularly susceptible to high lead or copper concentrations; and(IV) a water system shall use the information on lead, copper, and galvanized steel that it is required to collect when performing a corrosion control study that is required under subsection (f) of this section.(ii) Sample site selection form. After completing sample site selection, the system will submit the Lead and Copper Sample Site Selection form (TCEQ Form Number 20467) to the executive director for approval. Systems shall identify routine and reduced monitoring sites on their Lead and Copper Sample Site Selection form.(I) Selecting tier 1, 2, and 3 sites. Systems shall identify tier 1, tier 2, and tier 3 sites as described in subparagraph (D) of this paragraph.(II) Sites for community systems with insufficient tier 1, 2, or 3 sites. A community water system with insufficient tier 1, tier 2, and tier 3 sampling sites shall complete its sampling pool with representative sites throughout the distribution system.(III) Sites for nontransient, noncommunity systems with insufficient tier 1, 2, or 3 sites. A nontransient, noncommunity water system with insufficient tier 1 sites shall complete its sampling pool with sampling sites that contain copper pipes with lead solder installed before 1983. If additional sites are needed to complete the sampling pool, the nontransient, noncommunity water system shall use representative sites throughout the distribution system.(IV) Sites for systems with lead service lines. Any water system whose distribution system contains lead service lines shall draw 50% of the samples it collects during each monitoring period from sites that contain lead pipes, or copper pipes with lead solder, and 50% of the samples from sites served by a lead service line. A water system that cannot identify a sufficient number of sampling sites served by a lead service line shall collect first-draw samples from all of the sites identified as being served by such lines.(V) Supplemental information with Site Selection Form. Systems shall submit supplemental explanatory information as part of the sample site selection documentation.(D) Tier 1, 2, and 3 sites. Tier 1, 2, and 3 sites representing potential for leaching lead or copper under corrosive conditions shall be defined as described in this subparagraph.(i) Definition of community tier 1. The sampling sites selected for a community water system's sampling pool, called "tier l sampling sites," shall consist of single family structures that:(I) contain copper pipes with lead solder installed after 1982 or contain lead pipes; or(II) are served by a lead service line. When multiple-family residences comprise at least 20% of the structures served by a water system, the system may include these types of structures in its sampling pool.(ii) Definition of community tier 2. Any community water system with insufficient tier 1 sampling sites shall complete its sampling pool with "tier 2 sampling sites", consisting of buildings, including multiple-family residences that:(I) contain copper pipes with lead solder installed after 1982 or contain lead pipes; or(II) are served by a lead service line.(iii) Definition of community tier 3. Any community water system with insufficient tier 1 and tier 2 sampling sites shall complete its sampling pool with tier 3 sampling sites consisting of single family structures that contain copper pipes with lead solder installed before 1983.(iv) Definition of community "other representative sites". A representative site is a site in which the plumbing materials used at that site would commonly be found at other sites served by the water system.(v) Definition of nontransient, noncommunity tier 1 sites. Tier 1 sampling sites selected for a nontransient, noncommunity water system shall consist of buildings that:(I) contain copper pipes with lead solder installed after 1982 or contain lead pipes; or(II) are served by a lead service line.(vi) Nontransient, noncommunity representative sites. For the purpose of this paragraph, a representative site is a site in which the plumbing materials used at that site would be commonly found at other sites served by the water system.(E) Sites for systems missing first-draw sites. A water system may request approval of non-first-draw sample sites if it meets the requirements in this paragraph. The executive director will use all written documentation provided by the system in reviewing the request.(i) Type of system for non-first-draw sites. In order to request use of non-first-draw sites, the system must be either a nontransient, noncommunity system, or a community system where:(I) the system is a facility, such as a prison or a hospital, where the population served is not capable of or is prevented from making improvements to plumbing or installing point of use treatment devices; and(II) the system provides water as part of the cost of services provided and does not separately charge for water consumption. (ii) The request for approval of non-first-draw sites must provide written documentation identifying standing times and locations for enough non-first-draw samples to make up its sampling pool. A system must update their sample sites when system conditions changes, such as changes in population and destruction of previously used sites.(F) Sites for systems with less than five taps. A public water system that has fewer than five drinking water taps that can be used for human consumption may request a five-tap waiver to collect samples at fewer than five locations. The executive director may allow these public water systems to collect a number of samples less than the number of sites specified in paragraph (1) of this subsection, provided that all taps that can be used for human consumption are sampled. The system must request this reduction of the minimum number of sample sites in writing based on a request from the system or on-site verification. In no case can the system reduce the number of samples required below the minimum of one sample per available tap.(G) Use of same taps each round. A water system must collect tap samples from the same sampling sites in each sampling round.(i) If a water system changes a sampling site for any reason allowed in this section, the water system must provide the executive director with a written explanation showing which sampling site will be abandoned and the sampling site that replaces the abandoned sampling site. The water system's report shall include an explanation as to why a sampling site was changed from the previous round of sampling. (ii) If a water system cannot collect a sample from a previously used site, the water system shall provide a written explanation to the executive director. The water system must select an alternate sampling site from the system's sampling pool which meets similar criteria and is within reasonable proximity to the original sampling site.(2) Lead and copper tap sampling frequency. Water systems shall collect at least one sample from the number of sites listed in the table in paragraph (1) of this subsection during each monitoring period. Systems shall sample on the schedule determined by the executive director.(A) Initial and routine tap sampling. New systems, systems that exceed any action level, systems that install corrosion control treatment, systems that exceed a reduced monitoring level, and systems that operate outside an approved OWQP range shall collect tap samples in two consecutive six-month monitoring periods at the initial/routine number of sample sites.(i) Initial tap sampling. New systems shall collect tap samples in two consecutive six-month monitoring periods at the initial/routine number of sample sites. A new community or nontransient, noncommunity water system begins the first six-month initial monitoring period in the year after it becomes active. Initial tap sampling shall be conducted after the executive director has determined that a system has had sample sites approved based on the materials survey and sample site selection form required by subsection (b)(2) of this section.(ii) Routine tap sampling. Systems on reduced monitoring may be required to return to routine sampling in two consecutive six-month periods.(I) Systems that exceed the lead action level during any 4-month monitoring period shall return to routine tap sample monitoring. (II) Systems required to perform biweekly water quality parameter (WQP) sampling that have WQP levels that are outside the system's approved OWQP range for more than nine days in any six-month period shall return to routine tap sample monitoring.(III) Systems that are required to return to routine tap sampling because of an action level, reduced monitoring level, or OWQP range exceedance shall start the two consecutive six-month periods in the next calendar year after the exceedance or event that triggers routine monitoring.(IV) Within 36 months after the executive director designates optimal corrosion control treatment, systems that serve fewer than 50,000 people shall return to routine tap sampling.(V) Any system that installs corrosion control treatment shall return to routine tap sampling.(VI) Any system that installs source treatment shall return to routine tap sampling.(B) Reduced annual tap sampling. Systems that meet the requirements of this paragraph shall collect tap samples every year. Systems on annual reduced monitoring shall collect tap samples at the number of sites in the table entitled "Required Number of Lead and Copper Tap Sample Sites" in paragraph (1) of this subsection. Systems shall collect samples at sites approved by the executive director and documented in the monitoring plan. Reduced annual monitoring shall be performed during June, July, August, or September. This annual sampling shall begin during the calendar year immediately following the end of the second consecutive six-month monitoring period. The executive director shall notify each water system if it is eligible for reduced annual tap sample monitoring.(i) Systems serving more than 50,000 people that meet the lead action levels, and operate within any approved OWQP ranges, during two consecutive six-month periods may have their sampling frequency reduced to once a year.(ii) Systems serving 50,000 or fewer people that meet the lead and copper action levels during two consecutive six-month periods may have their sampling frequency reduced to once a year.(iii) Systems serving 50,000 or fewer people that meet the lead action level, and operate within any approved OWQP ranges, during two consecutive six-month periods may have their sampling frequency reduced to once a year.(iv) Systems that meet the action levels, but whose 90th percentile levels exceed 0.005 mg/L for lead or 0.65 for copper during two consecutive six-month initial or routine sampling periods must perform two consecutive years of annual monitoring.(v) Systems monitoring annually, that have been collecting samples during the months of June through September and that receive approval from the executive director to alter their sample collection period under subparagraph (E) of this paragraph must collect their next round of samples during a time period that ends no later than 21 months after the previous round of sampling.(vi) Systems with approved OWQP ranges that operate outside those ranges are not eligible for reduced annual monitoring.(C) Reduced three-year tap sampling. Systems which meet the requirements of this paragraph, shall collect tap samples every three years. Systems on reduced three-year monitoring shall collect tap samples at the reduced number of sites in the table entitled "Required Number of Lead and Copper Tap Sample Sites" in paragraph (1) of this subsection. Systems shall collect samples at the sites approved by the executive director and documented in the monitoring plan. Reduced three-year monitoring shall be performed during June, July, August, or September, unless the executive director has designated a different four-month period under subparagraph (E) of this paragraph.(i) Any system that demonstrates during two consecutive six-month initial or routine monitoring periods that the 90th percentile lead level is less than or equal to 0.005 mg/L and the 90th percentile copper level is less than or equal to 0.65 mg/L shall have the required frequency of sampling reduced to once every three years.(ii) A system that serves 50,000 or fewer people that meets the lead and copper action levels during three consecutive years of monitoring may reduce the frequency of monitoring for lead and copper from annually to once every three years.(iii) A system with approved OWQP ranges must operate within those ranges to remain eligible for reduced three-year monitoring. (iv) Samples collected once every three years shall be collected no later than every third calendar year.(v) Systems on reduced three-year monitoring that have been collecting samples during the months of June through September, and receive approval from the executive director to alter the sampling collection period as per subparagraph (E) of this paragraph must collect their next round of samples during a time period that ends no later than 45 months after the previous round of sampling.(D) Reduced nine-year tap sampling. Systems that meet the requirements of the United States Environmental Protection Agency's (EPA's) Lead and Copper Rule Minor Revisions as described in 40 Code of Federal Regulations §141.86, and serve 3,300 or fewer people shall be eligible for reduced nine-year tap sampling. Systems on reduced monitoring shall collect tap samples at the number of sites in the table entitled "Required Number of Lead and Copper Tap Sample Sites" in paragraph (1) of this subsection. Systems shall collect samples at the sites approved by the executive director and documented in the monitoring plan. Reduced nine-year tap sampling shall be performed during June, July, August, or September, unless the executive director has designated a different four-month period under subparagraph (E) of this paragraph. The executive director shall notify a system that it is eligible for reduced monitoring.(i) Initiation of reduced nine-year tap sampling. The first round of reduced nine-year tap sampling shall be completed no later than nine years after the last time the system monitored for lead and copper at the tap.(ii) Materials requirement for reduced nine-year tap sampling. In order to be eligible for reduced nine-year tap sampling, a system must provide the executive director with an updated materials survey certifying that the system meets the requirements of this clause.(I) The water system must demonstrate on the Materials Survey and Lead/Copper Sample Site Selection form (TCEQ Form Number 20467) that its distribution system, service lines, and all drinking water supply plumbing, including plumbing conveying drinking water within all residences and buildings connected to the system, are free of lead-containing materials and/or copper-containing materials to demonstrate the risk from lead and/or copper exposure is negligible throughout the water system.(II) To qualify for reduced nine-year tap sampling, the water system must certify in writing and provide supporting documentation that the system is free of all lead-containing materials. The system must contain no plastic pipes that contain lead plasticizers, or plastic service lines that contain lead plasticizers. The system must be free of lead service lines, lead pipes, lead soldered pipe joints, and leaded brass or bronze alloy fittings and fixtures, unless such fittings and fixtures meet the specifications of any standard established pursuant to 42 United States Code, §300g-6(e) (Safe Drinking Water Act, §1417(e)). (III) To qualify for reduced nine-year tap sampling the water system must provide certification and supporting documentation to the executive director that the system contains no copper pipes or copper service lines.(IV) The executive director shall not issue any "partial waivers" for lead and copper monitoring.(iii) Lead and copper levels for reduced nine-year tap sampling eligibility. To qualify for reduced nine-year tap sampling, the public water system must have completed at least one six-month period of initial tap water monitoring. Also, all of the system's 90th percentile lead and copper levels must have been less than or equal to 0.005 mg/L for lead and 0.65 for copper in all sampling performed by the system.(iv) Conditions for reduced nine-year tap sampling eligibility. As a condition of the reduced nine-year tap sampling schedule, the executive director may require the system to perform specific activities to avoid the risk of lead or copper concentration of concern in tap water. For example, additional monitoring, periodic outreach to customers to remind them to avoid installation of materials that might void the reduced nine-year tap sampling schedule, or other activities may be required.(v) Reduced nine-year tap sampling revocation. If a water system with a nine-year tap sampling schedule adds a new source of water, changes any water treatment, or no longer meets the requirements of this subparagraph, the water system must notify the executive director in writing within 60 days of the change as required by §290.39(j) of this title (relating to General Provisions). The executive director has the authority to modify the reduced nine-year tap sampling schedule to address changes.(vi) Notification of change in lead or copper materials. If a system on reduced nine-year tap sampling becomes aware that the system is no longer free of lead-containing or copper-containing materials, the system shall notify the executive director in writing no later than 60 days after becoming aware of such a change. If the system met both the lead and the copper action levels in all previous lead and copper tap sampling results, the system must return to three-year tap sampling schedule contained in subparagraph (C) of this paragraph.(vii) Tap sampling frequency sequence. Subsequent rounds of sampling, after a return to routine monitoring, must be collected once a year, every three years, or every nine years, as required by this section.(E) Alternate months for reduced lead and copper tap sampling. The executive director may approve a different period, other than June through September, for systems conducting reduced lead and copper tap sampling. Such a period shall be no longer than four consecutive months and must represent a time of normal operation where the highest levels of lead are most likely to occur. For a nontransient, noncommunity water system that does not operate during the months of June through September, and for which the period of normal operation where the highest levels of lead are most likely to occur is not known, the executive director shall designate a period that represents a time of normal operation for the system. This sampling shall begin during the period designated by the executive director in the calendar year immediately following the end of the second consecutive six-month monitoring period for systems initiating annual monitoring and during the three-year period following the end of the third consecutive calendar year of annual monitoring for systems initiating three-year reduced monitoring.(F) Tap sampling monitoring period. For systems on annual or less frequent schedules, the end of the monitoring period is September 30 of the calendar year in which the sampling occurs, or if the executive director has established an alternate monitoring period, the last day of that period.(G) Return to initial/routine tap sampling frequency. The executive director shall determine whether a system continues to meet the requirements to remain on reduced annual, three-year, or nine-year monitoring. A system on reduced monitoring may be required to return to routine monitoring as described in subparagraph (A)(i) of this paragraph. Systems required to return to routine monitoring shall sample at the number of routine sites listed in the table entitled "Required Number of Lead and Copper Tap Sample Sites" under paragraph (1) of this subsection.(H) Replacement tap samples. The water system must collect replacement samples for any samples invalidated under subsection (h) of this section. Any such replacement samples must be collected as soon as possible, but no later than twenty days after receiving notification of sample invalidation approval from the executive director. If a water system discovers that a sample has been collected at an inappropriate sampling site, the water system may request in writing that the sample be invalidated. The replacement samples shall be taken at the same locations as the invalidated samples or, if that is not possible, at locations other than those with valid results for the monitoring period.(I) Nontransient, noncommunity systems with less than five taps. A nontransient, noncommunity system that has fewer than five drinking water taps meeting the sample site criteria of this paragraph must collect at least one sample from each tap and then must collect additional samples from those same taps on different days during the monitoring period to meet the required number of samples unless the system has received a five-tap waiver from the executive director under paragraph (1)(F) of this subsection.(3) Consumer sampling for lead action level exceeders. Water systems that exceed the lead action level must arrange to sample the tap water of any customer who requests it. Analytical costs may be borne by the consumer.(d) Lead and copper entry point sampling. Systems must perform entry point lead and copper sampling after the system exceeds a lead or copper action level, installs source water treatment, or exceeds any MPLs set by the executive director. Systems must routinely monitor lead and copper in conjunction with monitoring for inorganic contaminants other than asbestos or nitrate under §290.106 of this title (relating to Inorganic Contaminants).(1) Lead and copper entry point sampling locations. Systems required to perform entry point sampling under this subsection shall sample at every entry point to the distribution system including purchased water entry points. The system shall take each subsequent sample at the same sampling point unless conditions make another sampling point more representative of each source or treatment plant. The system must seek executive director approval to modify an entry point sample location, and must revise its monitoring plan.(2) Lead and copper entry point sampling frequency. If a system draws water from more than one source and the sources are combined before distribution, the system must sample at an entry point to the distribution system during periods of normal operating conditions when water is representative of all sources being used.(A) Entry point lead and copper sampling after an action level exceedance. Any system which exceeds the lead or copper action level shall collect one sample from each entry point no later than 180 days after the end of the monitoring period during which the lead or copper action level was exceeded. For systems on annual or less frequent schedules, the end of the monitoring period is September 30 of the calendar year in which the sampling occurs, or if the executive director has established an alternate monitoring period, the last day of that period.(B) Entry point lead and copper sampling for systems that meet the action levels. A system is not required to conduct entry point lead and copper sampling if the system meets the lead and copper action levels during the entire entry point sampling period.(C) Entry point lead and copper monitoring frequency after installing source water treatment. Any system that installs source water lead or copper removal treatment shall collect entry point samples during two consecutive six-month periods within 36 months after source water treatment begins.(D) Entry point lead and copper sampling frequency after specification of MPLs. A system shall monitor at the frequency specified below.(i) Starting the year after the executive director specifies MPLs, water systems using any surface water shall collect annual samples once during each calendar year.(ii) Starting the year after the executive director specifies MPLs, a water system using only groundwater shall collect samples once during the three-year compliance period in effect at that time. Such systems shall collect samples once during each subsequent compliance period. Triennial samples shall be collected every third calendar year.(iii) A water system using only groundwater may sample entry points every ninth year if the system meets one of the following criteria.(I) The entry point lead and copper levels are below the lead and copper MPLs during at least three consecutive compliance periods; or(II) The executive director has determined that source water treatment is not needed and the system demonstrates that, during at least three consecutive annual or three-year compliance periods, the concentration of lead in source water was less than or equal to 0.005 mg/L and the concentration of copper in source water was less than or equal to 0.65 mg/L.(iv) A water system using surface water (or a combination of surface water and ground water) may reduce the lead and copper entry point monitoring frequency to once during every ninth year if the system meets one of the following criteria:(I) The entry point lead and copper levels are below the MPLs for lead and copper for at least three consecutive years; or(II) The executive director has determined that source water treatment is not needed and the concentration of lead at all entry points was less than or equal to 0.005 mg/L and the concentration of copper at all entry points was less than or equal to 0.65 mg/L during at least three consecutive years.(v) A water system that uses a new source of water is not eligible for reduced entry point monitoring for lead and copper until concentrations in samples collected from the new source during three consecutive monitoring periods are below the lead and copper MPLs.(vi) Where the results of sampling indicate an exceedance of a lead or copper MPL, one additional sample must be collected within two weeks after the initial sample was taken at the same entry point. Samples will be averaged for compliance determination.(E) All water systems shall notify the executive director in writing of any proposed change in treatment or the addition or deletion of a source of water. The executive director may require any such system to conduct additional monitoring or to take other action to ensure that the system maintains minimal levels of corrosion in the distribution system.(e) WQP monitoring requirements. Systems shall monitor WQPs to determine the potential for corrosion. All systems that serve more than 50,000 people shall monitor in accordance with this subsection. Systems that serve 50,000 or fewer people that exceed a lead or copper action level shall monitor in accordance with this subsection, during the monitoring period in which the system exceeds the action level. Sites shall be submitted to the executive director for approval in conjunction with the system's monitoring plan.(1) WQP monitoring locations. Systems that are required to monitor WQPs shall take two samples at all entry points and distribution WQP sites, as specified in subparagraphs (A) and (B) of this paragraph, where applicable, and at the number of distribution sites shown in Figure: 30 TAC §290.117(e)(1). Systems on initial or routine monitoring, as described in paragraph (2) of this subsection, must sample at the number of sample sites in the column entitled "Initial and Routine Number of WQP Distribution Sites." Systems on reduced monitoring must sample at the number of sites in the column entitled "Reduced Number of WQP Distribution Sites."Attached Graphic(A) Entry point WQP sites. Systems that are required to perform entry point WQP monitoring under this subsection must perform monitoring at every entry point to the distribution system. The executive director may allow systems using only groundwater to forego entry point monitoring, and monitor only at representative distribution system locations according to paragraph (6) of this subsection.(B) Distribution WQP sites. Sites normally used for bacteriological monitoring or other appropriate sites may be used for WQP sampling. Samples need not be collected inside a customer's home. These sites shall represent water quality throughout the entire distribution system.(2) Initial and routine WQP monitoring. New systems must perform at least one initial WQP monitoring round in the year following the year that the system is identified as active. Systems that exceed lead or copper action levels shall perform two consecutive six-month periods of routine WQP monitoring. Systems must monitor in accordance with subparagraphs (A) and (B) of this paragraph.Attached Graphic(A) Locations for initial and routine WQP monitoring. Systems must conduct WQP monitoring at the locations specified in paragraph (1)(A) and (B) of this subsection, where applicable, and at the number of distribution sites specified in Figure: 30 TAC §290.117(e)(1). (B) Frequency of initial and routine WQP monitoring. Systems serving 50,000 or fewer people shall measure the WQPs listed in this paragraph during each six-month monitoring period in which the system exceeds the lead or copper action level. Systems serving more than 50,000 people must perform two consecutive six-month periods of sampling. Public water systems shall collect WQP samples on a quarterly basis as described in Figure: 30 TAC §290.117(e)(2) to reflect seasonal variability in water quality conditions.(3) WQP monitoring after installation of corrosion control treatment. Any system that installs optimal corrosion control treatment as required by subsection (f) of this section shall measure the list of WQPs at the locations and frequencies as specified in Figure: 30 TAC §290.117(e)(3). Any system serving more than 50,000 people that installs optimal corrosion control treatment shall monitor once during each six-month period. Any system serving 50,000 or fewer people that installs corrosion control treatment shall monitor during each six-month monitoring period specified in which the system exceeds the lead or copper action level.Attached Graphic(A) Frequency of WQP monitoring after installation of corrosion control treatment. After a system installs corrosion control treatment, it must collect least one sample every two weeks (biweekly) at every entry point to the distribution system, except as provided under paragraph (6) of this subsection.(B) Documentation for WQP sample locations after installation of corrosion control treatment. Prior to the starting date of the monitoring period for any monitoring under this paragraph, the system shall provide the executive director with an updated list of entry points and their sources, a list of distribution sites, and information on seasonal variability of water usage to demonstrate that the sites are representative of water quality and treatment conditions throughout the system. The system shall submit this information to the executive director upon request or when circumstances change and retain a copy of the submittal and approval with the system's monitoring plan.(C) Additional monitoring when determining optimal corrosion control treatment. The executive director may require the system to conduct additional WQP monitoring in to assist in evaluating the system's sample sites.(4) WQP monitoring after designation of OWQP ranges. After the executive director approves OWQP ranges, systems shall measure the list of WQPs at the frequency and locations as described in Figure: 30 TAC §290.117(e)(4).Attached Graphic(A) After the executive director approves OWQP ranges, systems serving more than 50,000 people shall measure the WQPs listed in this paragraph and determine compliance with the OWQP ranges quarterly starting with the first six-month period after the executive director specifies the OWQPs beginning on either January 1 or July 1, whichever comes first.(B) Any system serving 50,000 or fewer people shall conduct WQP monitoring during each six-month period specified in this paragraph in which the system exceeds the lead or copper action level. If the system is eligible for reduced lead and copper tap sampling, the system shall collect WQPs during the same monitoring periods that it collects lead and copper tap samples.(C) The system shall complete follow-up sampling within 36 months after the executive director designates optimal corrosion control treatment.(D) Systems shall measure WQPs at every entry point to the distribution system, except as allowed under paragraph (6) of this subsection.(5) Reduced WQP monitoring. The executive director may reduce monitoring for systems that demonstrate a low risk of corrosion of lead and copper into the drinking water. Water systems on reduced schedules shall monitor the list of WQPs at the locations and frequency given in the table entitled "Reduced Water Quality Parameter (WQP) Entry Point and Distribution Monitoring."Attached Graphic(A) Reduced quarterly WQP distribution monitoring. A system that operates within approved OWQP ranges in all samples taken during two consecutive six-month initial or routine monitoring periods under paragraph (2) of this subsection may collect tap samples for applicable WQPs from the reduced number of sites quarterly. A water system sampling quarterly shall collect samples evenly throughout the year so as to reflect seasonal variability.(B) Reduced annual WQP distribution monitoring. Any water system that operates within approved OWQP ranges during three consecutive years of quarterly monitoring may reduce the frequency with which it collects distribution WQP samples to annually. Annual WQP sampling shall begin during the calendar year immediately following the end of the monitoring period in which the third consecutive year of quarterly monitoring occurs. A water system sampling annually shall collect samples evenly throughout the year so as to reflect seasonal variability.(C) Reduced triennial WQP distribution monitoring. The executive director may reduce the WQP monitoring frequency to once every three years if a system meets the criteria of this subparagraph. Triennial monitoring shall be done no later than every third calendar year.(i) A system that operates within approved OWQP ranges during three consecutive years of annual monitoring is eligible to reduce the frequency of distribution WQP monitoring to once in every third year. This sampling shall begin no later than the third calendar year following the end of the monitoring period in which the third consecutive year of monitoring occurs.(ii) A system that demonstrates during two consecutive six-month periods that the entry point 90th percentile lead level is less than or equal to the PQL for lead in subsection (b)(3) of this section, and that operates within approved OWQP ranges during that time may reduce the frequency of distribution monitoring to once every third year. This sampling shall begin no later than the third calendar year following the end of the year in which the second consecutive six-month period occurs.(D) Return to routine WQP monitoring. The executive director may return a system to monitoring at the routine frequency and routine number of sample sites. Any water system on reduced monitoring that fails to operate within the approved OWQP range for more than nine days in any six-month monitoring period shall resume routine WQP distribution system sampling in accordance with the number and frequency requirements in paragraph (2) of this subsection. Any system required to return to routine frequency for lead and copper tap sampling under subsection (c)(2)(A)(ii) of this section shall also return to routine WQP monitoring.(E) Entry point WQP monitoring. Systems on reduced WQP monitoring shall measure WQPs at every entry point to the distribution system, except as provided under paragraph (6) of this subsection.(6) Distribution system sampling for systems using only groundwater. The executive director may allow a system using only groundwater to perform WQP sampling required by paragraph (3), (4), or (5) of this subsection to sample only at representative distribution system sites, and to forego sampling at entry points. Prior to foregoing entry point monitoring, the system shall provide written information identifying the selected entry points and documentation, including information on seasonal variability, sufficient to demonstrate that the sites are representative of water quality and treatment conditions throughout the system to the executive director for approval.(f) Corrosion control. Systems may be required to perform corrosion control studies to determine whether treatment is necessary to reduce the corrosivity of the water. Systems may be required to install optimal corrosion control treatment in order to control corrosion in the system. The executive director may modify the designated corrosion control treatment or parameters. A system's request for changes and executive director response pursuant to modification shall be in writing. (1) Corrosion control studies. Systems may be required to perform corrosion control studies to determine whether treatment is necessary to reduce the corrosivity of the water.(A) Corrosion control studies applicability. Systems that meet the conditions in this subparagraph are required to perform corrosion control studies.(i) Corrosion control studies for systems serving more than 50,000 people. Systems serving more than 50,000 people are required to conduct corrosion control studies unless the executive director has determined that the system is currently deemed to have optimized corrosion control, as defined in subsection (b)(5) of this section.(I) Systems serving more than 50,000 people that exceed either the lead or copper action level during any a reduced tap sampling monitoring round must perform a corrosion control study within six months.(II) Systems serving more than 50,000 people that have not been deemed at any previous time that exceed lead or copper action levels must conduct a demonstration study as described in subparagraph (C) of this paragraph.(III) The corrosion control study must be conducted and submitted within 12 months after the end of the monitoring period in which the system exceeded the action level.(ii) Corrosion control studies for systems serving 50,000 or fewer people. Any system serving 50,000 or fewer people that exceeds the lead or copper action level must perform a corrosion control study to identify optimal corrosion control treatment for the system. The system must conduct the study within 12 months after the end of the monitoring period in which the system exceeded the action level.(B) Scope of corrosion control study. A system required to perform a corrosion control study shall include evaluation of treatment methods and potential constraints to treatment.(i) Corrosion control treatment methods. Any public water system performing a corrosion control study shall evaluate the effectiveness of each of the following treatments (or combinations of treatments) to identify the optimal control treatment:(I) alkalinity and pH adjustment;(II) calcium hardness adjustment; and(III) the addition of a phosphate or silicate based corrosion inhibitor at a concentration sufficient to maintain an effective residual concentration in all test tap samples.(ii) Potential constraints to corrosion control treatment methods. The system shall identify all chemical or physical constraints that limit or prohibit the use of a particular corrosion control treatment. The system shall evaluate the effect of the chemicals used for corrosion control treatment on other water quality treatment processes. The system shall document treatment considerations with at least one of the following:(I) data and documentation showing that a particular corrosion control treatment has adversely affected other water treatment processes when used by another water system with comparable water quality characteristics, or(II) data and documentation demonstrating that the water system has previously attempted to evaluate a particular corrosion control treatment and has found that the treatment is ineffective or adversely affects other water quality treatment processes.(C) Demonstration corrosion control study requirements. The water system shall conduct this evaluation using pipe rig/loop tests, metal coupon tests, or partial systems tests called a demonstration study. The water system shall measure the parameters in this clause in any tests conducted under this subparagraph before and after evaluating the corrosion control treatments listed in subparagraph (B) of this paragraph:(i) lead;(ii) copper;(iii) pH;(iv) alkalinity;(v) calcium;(vi) conductivity;(vii) orthophosphate (when an inhibitor containing a phosphate compound is used);(viii) silicate (when an inhibitor containing a silicate compound is used); and(ix) water temperature.(D) Desk-top corrosion control study requirements. A desk-top corrosion control study shall recommend treatment and OWQPs based on data for treatments in documented analogous systems called a desk-top study. Analogous system means a system of similar size, water chemistry, and distribution system configuration. The water system shall evaluate each of the corrosion control treatments in subparagraph (B)(i) of this paragraph.(2) Setting approved OWQP ranges based on corrosion control study data. On the basis of the corrosion control study evaluation, the water system shall recommend to the executive director, in writing, an OWQP range based on normal system operating conditions. Systems must recommend OWQPs consistent with subsection (b)(4) of this section. The executive director will review the study and designate OWQPs. The executive director shall designate OWQP ranges based on the results of lead, copper, and WQP monitoring by the system, both before and after the system installs optimal corrosion control treatment. The executive director may designate values for additional water quality control parameters determined to reflect optimal corrosion control for the system. The executive director shall notify the system in writing of these determinations and will provide the basis for the decision.(3) Optimal corrosion control treatment designation. A system exceeding the action level for lead or copper based on the 90th percentile level shall submit recommendations for optimal corrosion control treatment within six months after the end of the monitoring period during which it exceeds one of the action levels. The executive director shall designate the optimal corrosion control treatment method.(A) On the basis of the corrosion control study in paragraph (1) of this subsection, lead and copper tap sampling, and WQP sampling the water system shall recommend to the executive director, in writing, the treatment option that constitutes optimum corrosion control. The system shall submit all corrosion control data and shall provide sufficient documentation as required by the executive director to establish the validity of the evaluation procedure.(B) The executive director shall designate optimal corrosion control treatment. The executive director shall either approve the corrosion control treatment option recommended by the system, or designate alternative corrosion control treatment(s) from among those listed in paragraph (1)(B)(i) of this subsection. When designating optimal treatment the executive director shall consider the effects that additional corrosion control treatment will have on water quality parameters and on other water quality treatment processes. If the executive director requests additional information, the water system shall provide the information.(C) Upon its own initiative or in response to a request by a water system or other interested party, the executive director may modify the determination of the optimal corrosion control treatment. A request for modification by a system or other interested party shall be in writing, explain why the modification is appropriate, and provide supporting documentation. The executive director may modify the determination when the change is necessary to ensure that the system continues to optimize corrosion control treatment. A revised determination shall be made in writing, set forth the new treatment requirements, explain the basis for the decision, and provide an implementation schedule for completing the treatment modifications.(D) The executive director shall notify the system of the decision on optimal corrosion control treatment in writing and will provide the basis for this determination. The executive director will review the study and designate optimal corrosion control treatment and water quality parameters.(i) For systems serving more than 50,000 customers, optimal corrosion control treatment and OWQPs shall be designated within six months of submittal.(ii) For systems serving 3,300 to 50,000 customers, optimal corrosion control treatment and OWQPs shall be designated within 18 months of submittal.(iii) For systems serving fewer than 3,300, optimal corrosion control treatment and OWQPs shall be designated within 24 months of submittal.(4) Installation of optimal corrosion control treatment. A system shall perform corrosion control activities identified in their approved corrosion control study. A system shall install optimal corrosion control treatment within 24 months after the executive director designates optimal corrosion control treatment and notifies the water system. All applicable water systems shall operate optimal corrosion control treatment in a manner that minimizes lead and copper concentrations at users' taps while ensuring that the treatment does not cause the system to violate any other drinking water standard.(5) Operation of corrosion control treatment. All systems optimizing corrosion control shall continue to operate and maintain optimal corrosion control treatment, including operating within approved OWQP ranges and complying with all other requirements of this section.(A) The executive director shall evaluate the results of all lead and copper tap samples and WQP samples submitted by the water system to determine whether the corrosion control treatment was properly installed and if the system is properly operating the designated optimal corrosion control treatment.(B) The system shall operate in such a manner as to meet any requirements that the executive director determines appropriate to ensure optimal corrosion control treatment is maintained.(6) Small system activities cessation. A system serving 50,000 or fewer people that is required to perform corrosion control activities because of an action level exceedance may cease the corrosion control activities if it conducts two consecutive six-month lead and copper monitoring rounds and meets the lead and copper action levels based on the 90th percentile in both rounds.(g) Treatment of source water lead and copper. Systems may be required to perform treatment to remove lead or copper from source water. Any system exceeding the lead or copper action level shall implement all applicable source water treatment requirements specified by the executive director under this subsection. The executive director will determine whether such treatment is required.(1) Determination of need for source water treatment. Any system which exceeds the lead or copper action level shall recommend in writing to the executive director the installation and operation of ion exchange, reverse osmosis, lime softening or coagulation/filtration. The executive director shall evaluate all entry point water sample results, along with the corrosion control study, to determine if source water treatment is necessary. If source water treatment is required by the executive director, the system must install the treatment in accordance with the scheduling requirements specified in this subsection. (A) The system shall submit the results for all source water samples to aid in the executive director's evaluation of whether source water treatment is necessary.(B) The executive director may approve the treatment recommended by the system or may require installation and operation of another source water treatment from among the following: ion exchange, reverse osmosis, lime softening or coagulation/filtration.(C) If the executive director requests additional information to aid in its review, the water system shall provide the information by the date specified by the executive director in the request.(D) A system may recommend that no treatment be installed based upon a demonstration that source water treatment is not necessary to minimize lead and copper levels at users' taps.(E) The executive director shall notify the system in writing of the determination and will provide the basis for the decision.(2) Schedule for installation of treatment of source water lead and copper. If source water treatment is required, the system must install the treatment in accordance with the scheduling requirements specified in this subsection.(A) A system exceeding the lead or copper action level shall recommend treatment to the executive director no later than 180 days after the end of the monitoring period during which the lead or copper action level was exceeded.(B) The executive director shall make a determination regarding source water treatment within six months after the system submits the treatment recommendation and supporting data under subparagraph (A) of this paragraph.(C) The system shall properly install and operate the source water treatment approved by the executive director within 24 months after the executive director's determination under subparagraph (B) of this paragraph.(D) The system shall complete follow-up tap sampling under subsection (c) of this section and entry point monitoring under subsection (d) of this section within 36 months after the executive director's determination of source water treatment under subparagraph (B) of this paragraph.(3) Operation of source water lead and copper treatment. If source water treatment is required, the system shall properly operate the treatment in compliance with the specified MPLs for lead and copper and continue entry point monitoring under subsection (d) of this section. (A) A water system shall operate the source water treatment in a manner that maintains lead and copper levels below the MPLs designated by the executive director at each entry point.(B) The executive director may review the system's data and determine whether the system has properly installed and operated the source water treatment.(4) Modification of source water treatment decisions. Upon its own initiative or in response to a request by a water system or other interested party, the executive director may modify the determination of the source water treatment under paragraph (1) of this subsection, or MPLs for lead and copper at entry points under subsection (b)(6) of this section. A request for modification by a system or other interested party shall be in writing, explain why the modification is appropriate, and provide supporting documentation. The executive director may modify the determination when the change is necessary to ensure that the system continues to minimize lead and copper concentrations in water entering the distribution system. A revised determination shall be made in writing, set forth the new treatment requirements, explain the basis for the executive director's decision, and provide an implementation schedule for completing the treatment modifications.(h) Analytical methods, sample collection, and sample invalidation. All methods used for analysis under this section shall be consistent with 40 CFR Part 141, Subpart I, concerning Lead and Copper.(1) Lead and copper tap sample collection method. A first draw tap sample means a one liter or one quart sample of tap water collected from a cold water, frequently used interior tap, after the water has been standing in the plumbing for at least six hours without first flushing the tap. The kitchen cold water faucet is the preferred sampling tap at residential sites. It is recommended that the water not be allowed to stand in the plumbing for more than 18 hours prior to a sample collection. A sample collection may be conducted by either water system personnel or the residents. If the resident is allowed to collect samples for lead and copper monitoring, the water system must provide written instructions for sample collection procedures.(2) Lead and copper tap sample analytical methods. Analysis for lead and copper shall be conducted using methods stated in 40 CFR §141.89, in laboratories accredited by the executive director. Analysis for pH, conductivity, calcium, alkalinity, orthophosphate, silica, and temperature may be conducted in any laboratory approved by the executive director under §290.121 of this title utilizing the EPA methods prescribed in 40 CFR §141.89.(A) The PQLs and the method detection limits (MDLs) must comply with 40 CFR §141.89. The laboratory accredited for the analysis of lead and copper tap samples must achieve the MDL of 0.001 mg/L for lead if composited entry point water samples are analyzed for lead.(B) The executive director may allow the use of previously collected monitoring data if the data were collected in accordance with 40 CFR §141.89.(C) All lead levels measured between the PQL and MDL must either be reported as measured or reported as one-half the PQL. All levels below the lead MDLs must be reported as zero.(D) All copper levels measured between the PQL and the MDL must be either reported as measured or reported as one-half the PQL. All levels below the copper MDL must be reported as zero.(E) First-draw-tap samples must be received in the laboratory within 14 days after the collection date.(3) Lead and copper tap sample invalidation. The executive director may invalidate a lead or copper tap sample if one of the conditions in subparagraphs (A) - (D) of this paragraph is met:(A) The laboratory establishes that improper sample analysis caused erroneous results.(B) The executive director determines that the sample was taken from an inappropriate site.(C) The sample was damaged in transit.(D) The executive director determines that the sample was subject to tampering, as based on substantial documentation.(E) The executive director shall not invalidate a sample based solely on the fact that a follow-up sample result is higher or lower than the original sample.(F) The water system must provide written documentation to the executive director for samples the water system believes should be invalidated. The executive director must document any decision to invalidate a sample in writing.(4) Water quality parameter analytical methods. Water quality parameter testing must be conducted at a laboratory that uses the methods described in 40 CFR §141.89, and it is the responsibility of the water system to collect, submit, and report these values.(A) Analyses for lead, copper, pH, conductivity, calcium, alkalinity, orthophosphate, silica, and temperature shall be conducted in accordance with 40 CFR §141.23(k)(1).(B) Analyses for alkalinity, calcium, conductivity, orthophosphate and phosphate compounds, pH, silica, and temperature must be performed by a lab approved by the executive director under the Texas Commission on Environmental Quality Regulatory Guidance 384 "How to Develop a Monitoring Plan for a Public Water System." Analyses under this section for lead and copper shall only be conducted by laboratories that have been accredited by the executive director under Chapter 25, Subchapter B of this title (relating to Environmental Testing Laboratory Accreditation and Certification).(C) The executive director may allow the use of previously collected monitoring data for purposes of monitoring, if the data were collected and analyzed in accordance with the requirements of this section and 40 CFR Part 141, Subpart I.(i) Reporting. Systems shall report any information required by this section and 40 CFR Part 141, Subpart I to the executive director.(1) Reporting lead and copper tap sample results. Tap sample results shall be reported within ten days following the end of each monitoring period as specified by the executive director. For systems on annual or less frequent schedules, the end of the monitoring period is September 30 of the calendar year in which the sampling occurs, or if the executive director has established an alternate monitoring period, the last day of that period.(A) A system shall provide documentation for each tap water lead or copper sample for which the water system requests invalidation. (B) The system shall provide the following information to the executive director:(i) the results of all tap samples for lead and copper including the location of each site and the criteria under which the site was selected for the system's sampling pool; and(ii) an identification of sampling sites utilized during the current monitoring period that were not sampled during previous monitoring periods, and an explanation why sampling sites have changed.(2) Reporting entry point lead and copper sample results. A water system shall report the sampling results for all source water samples collected in accordance with subsection (e) of this section within the first 10 days following the end of each source water monitoring period.(3) Reporting WQP results. Systems must report all results of WQP analyses including the location/address of each distribution system sampling point. This report must include each WQP specified in subsection (e) of this section, as well as all sample results from entry points to the distribution system. WQP reports should be submitted to the executive director within the first ten days following the end of each applicable monitoring period. For monitoring periods with a duration less than six months, the end of the monitoring period is the last date samples can be collected during that period.(A) Systems shall report the results of all distribution samples for pH, and where applicable, alkalinity, calcium, conductivity, temperature, and orthophosphate or silica.(B) Systems shall report the results of all samples collected at the entry point(s) to the distribution system for applicable water quality parameters.(C) A system using only groundwater that is allowed to limit WQP monitoring to a subset of entry points shall report, by the commencement of such monitoring, written correspondence to the executive director that identifies the sources flowing to each of the system's entry points and report information sufficient to demonstrate that the sites are representative of water quality and treatment conditions throughout the system.(4) Reporting distribution material and sample site data. New systems shall submit the first material survey by December 31 of the year in which they are assigned a Public Water System Identification Number. The executive director may allow a system to submit the first material survey by December 31 of the year in which the system's status becomes active.(A) All systems shall submit Materials Survey and Site Selection Forms (TCEQ Form Number 20467) describing the entire system before performing tap sampling.(B) Any system seeking reduced nine-year tap sampling under subsection (c)(2)(D) of this section shall submit current documentation showing that there are no lead- or copper-containing materials within the distribution system.(i) Prior to starting reduced nine-year tap sampling, a system shall submit documentation showing that there are no lead- or copper- containing materials within the distribution system and that the system complies with all drinking water standards of this subchapter.(ii) No later than nine years after the first nine-year tap samples are collected, any system desiring to remain on reduced nine-year tap sampling shall provide updated documentation showing that there are no lead- or copper- containing materials within the distribution system and that the system complies with all drinking water standards of this subchapter.(iii) No later than 60 days after detecting lead-containing and/or copper-containing material, as appropriate, each system with a reduced nine-year tap sampling schedule shall provide written notification to the executive director, setting forth the circumstances resulting in the lead-containing or copper-containing materials being introduced into the system and what corrective action, if any, the system plans to remove these materials.(C) Water systems requesting a change to previously approved sample sites shall report supporting information, including an explanation as to why a sampling site was changed from the previous round of sampling, if applicable. If a water system changes a sampling site for any reason allowed in this section, the water system must provide the executive director with a written explanation showing which sampling site will be abandoned and the sampling site that replaces the abandoned sampling site.(5) Reporting public education. A system that is required to perform public education must provide copies of public education materials and certification that distribution of said materials is being conducted in accordance with this subsection to the executive director within ten days after the delivery of the materials to the public.(6) Reporting consumer notification. No later than three months following the end of the monitoring period, each system must mail a sample copy of the consumer notification of tap results to the executive director along with a certification that the notification has been distributed in a manner consistent with the requirements of subsection (j) of this section.(7) Corrosion control reporting. Systems that are required to perform corrosion control studies and install corrosion control treatment shall report all information required under subsection (f) of this section. Corrosion control treatment data shall be reported as required by the executive director. Systems shall report the following information listed in this paragraph.(A) Systems demonstrating that they have already optimized corrosion control, must provide all information required in subsection (f) of this section.(B) Systems that are recommending optimal corrosion control treatment must provide all supporting documentation for their recommendation regarding optimal corrosion control treatment under 40 CFR §141.82(a).(C) Systems that are required to evaluate the effectiveness of corrosion control treatments under subsection (f) of this section, must submit the information required by that section. (D) Systems required to install optimal corrosion control designated by the executive director under 40 CFR §141.82(d), must submit a letter certifying that the system has completed installing that treatment.(8) Reporting source treatment. A system that is required to install source water lead or copper removal treatment must certify in writing that the system has completed installing the approved treatment within 24 months after the executive director approved that treatment.(9) Reporting system conditions and facility changes. Systems must report changes of system conditions and facilities that may impact corrosion to the executive director.(A) The water system must inform the executive director of the identity of treated and non-treated entry points and their seasonal use, if any, and demonstrate that the WQPs represent water quality and treatment conditions throughout the system.(B) At a time specified by the executive director, or if no specific time is designated by the executive director, then as early as possible prior to the addition of a new source or any long-term change in water treatment, a water system deemed to have optimized corrosion control or subject to reduced tap sampling shall submit written documentation to the executive director describing the change or addition. The water system may not implement the addition of a new source or long-term change in treatment until notified in writing that the change is approved by the executive director. Examples of long-term treatment changes include the addition of a new treatment process or modification of an existing treatment process. Examples of modifications include switching secondary disinfectants, switching coagulants (for example, alum to ferric chloride), and switching corrosion inhibitor products (for example, orthophosphate to blended phosphate). Long-term changes can include dose changes to existing chemicals if the system is planning long-term changes to its finished water pH or residual inhibitor concentration. Long-term treatment changes would not include chemical dose fluctuations associated with daily raw water quality changes.(10) Other reporting. Any system which collects sampling data in addition to that required by this section shall report the results to the executive director within the first ten days following the end of the applicable monitoring period during which the samples are collected.(11) Reporting lead service line replacement. A water system that is replacing lead service lines must certify that lead service lines have been replaced in accordance with directives of the executive director.(j) Consumer notification. All water systems must provide a consumer notice of lead tap water monitoring results to persons served at the sites (taps) that are tested.(1) Timing of consumer notification. A water system must provide the consumer notice as soon as practical, but no later than 30 days after the system receives the tap sampling results.(2) Content of consumer notification. The consumer notice must include the results of lead tap sampling for the tap that was tested, an explanation of the health effects of lead, list steps consumers can take to reduce exposure to lead in drinking water, and contact information for the water utility. The notice must also provide the maximum contaminant level goal and the action level for lead and the definitions for these two terms from 40 CFR §141.153(c).(3) Delivery of consumer notification. The consumer notice must be provided to persons served at the tap that was tested, either by mail or by another method approved by the executive director. Upon approval by the executive director, a nontransient, noncommunity water system may post the results on a bulletin board in the facility to allow users to review the information. The system must provide the notice to customers at sample taps tested, including consumers who do not receive water bills.(k) Public education. A public water system that exceeds the lead action level based on tap water samples collected in accordance with subsection (c) of this section shall deliver the public education materials in accordance with the requirements of this subsection.(1) Content of public education materials. Public water systems must include the elements in this paragraph in their printed materials in the same order as listed. Language in subparagraphs (A), (B), and (F) of this paragraph must be included in the materials, exactly as written, except for the text in brackets for which the public water system must include system-specific information. Any additional information presented by a public water system must be consistent with the information below and be in plain language that can be understood by the general public. Water systems must submit all written public education materials to the executive director prior to delivery. Public education materials must be approved by the executive director prior to delivery.(A) "IMPORTANT INFORMATION ABOUT LEAD IN YOUR DRINKING WATER. {INSERT NAME OF WATER SYSTEM} found elevated levels of lead in drinking water in some homes/buildings. Lead can cause serious health problems, especially for pregnant women and young children. Please read this information closely to see what you can do to reduce lead in your drinking water."(B) "Health effects of lead." Lead can cause serious health problems if too much enters your body from drinking water or other sources. It can cause damage to the brain and kidneys, and can interfere with the production of red blood cells that carry oxygen to all parts of your body. The greatest risk of lead exposure is to infants, young children, and pregnant women. Scientists have linked the effects of lead on the brain with lowered IQ in children. Adults with kidney problems and high blood pressure can be affected by low levels of lead more than healthy adults. Lead is stored in the bones, and it can be released later in life. During pregnancy, the child receives lead from the mother's bones, which may affect brain development."(C) Sources of lead.(i) Explain what lead is.(ii) Explain possible sources of lead in drinking water and how lead enters drinking water. Include information on home and building plumbing materials and service lines that may contain lead.(iii) Discuss other important sources of lead exposure in addition to drinking water such as lead-based paint or lead-contaminated soils.(D) Discuss the steps the consumer can take to reduce their exposure to lead in drinking water. (i) Encourage running the water to flush out the lead.(ii) Explain concerns with using hot water from the tap and specifically caution against the use of hot water for preparing baby formula.(iii) Explain that boiling water does not reduce lead levels.(iv) Discuss other options consumers can take to reduce exposure to lead in drinking water, such as alternative sources or treatment of water.(v) Suggest that parents have their child's blood tested for lead.(E) Explain why there are elevated levels of lead in the system's drinking water (if known) and what the water system is doing to reduce the lead levels in homes and buildings in this area.(F) "For more information, call us at {INSERT YOUR SYSTEM's PHONE NUMBER} if applicable) or visit our website at {INSERT YOUR WEBSITE HERE}. For more information on reducing lead exposure around your home or building and the health effects of lead, visit EPA's website at www.epa.gov/lead or contact your health care provider."(G) In addition to including the elements specified in subparagraphs (A) - (F) of this paragraph, community water systems must:(i) tell consumers how to get their water tested, and(ii) discuss lead in plumbing components and the difference between low lead and lead free.(H) For public water systems serving a large proportion of non-English speaking consumers, as determined by the executive director, the public education materials must contain information in the appropriate language(s) regarding the importance of the notice or contain a telephone number or address where persons served may contact the water system to obtain a translated copy of the public education materials or to request assistance in the appropriate language. (2) Delivery of public education materials by community systems. Systems must provide public education materials meeting the criteria of paragraph (1) of this subsection to the public in accordance with this paragraph.(A) A community system must directly deliver printed public education materials to all bill paying customers.(i) The community system must deliver public education materials to local public health agencies even if they are not located within the water system's service area, along with an informational notice that encourages distribution to all the organization's potentially affected customers or community water system's users. The system must contact the local public health agencies directly by phone or in person. The local public health agencies may provide a specific list of additional community based organizations serving target populations, which may include organizations outside the service area of the water system. If such lists are provided, systems must deliver public education materials to all organizations on the provided lists.(ii) The community system must contact customers who are most at risk by delivering public education materials to the organizations listed in this clause that are located within the water system's service area, along with an informational notice that encourages distribution to all the organization's potentially affected customers or community water system's users.(I) Public and private schools or school boards;(II) Women, Infants and Children (WIC) and Head Start programs;(III) Public and private hospitals and medical clinics;(IV) Pediatricians;(V) Family planning clinics; and(VI) Local welfare agencies.(iii) The community system must make a good faith effort to locate organizations of the types listed in this clause within the service area and deliver public education materials to them, along with an informational notice that encourages distribution to all potentially affected customers or users. The good faith effort to contact at-risk customers may include requesting a specific contact list of these organizations from the local public health agencies, even if the agencies are not located within the water system's service area.(I) Licensed childcare centers;(II) Public and private preschools; and(III) Obstetricians-Gynecologists and Midwives.(iv) The community system must implement at least three activities from one or more categories listed in this clause. The educational content and selection of these activities must be determined in consultation with the executive director.(I) Public service announcements;(II) Paid advertisements;(III) Public area information displays;(IV) E-mails to customers;(V) Public meetings;(VI) Household deliveries;(VII) Targeted Individual Customer Contact;(VIII) Direct material distribution to all multi-family homes and institutions; or(IX) Other methods approved by the executive director.(v) At least quarterly, the community system must provide information on or in each water bill as long as the system exceeds the action level for lead. The message on the water bill must include the following statement exactly as written except for the text in brackets for which the water system must include system-specific information: "{INSERT NAME OF WATER SYSTEM} found high levels of lead in drinking water in some homes. Lead can cause serious health problems. For more information please call {INSERT NAME OF WATER SYSTEM}" Upon written request, the executive director may allow a separate mailing of public education materials to customers if the water system cannot place the information on water bills.(vi) A community system serving more than 100,000 people must post public education materials on the water system's website.(vii) The community system must submit a press release to newspaper, television and radio stations.(B) With executive director approval, a community public water system serving 3,300 or fewer people may limit certain aspects of their public education programs by distributing the public education materials required by subparagraph (A)(ii) of this paragraph to facilities and organizations served by the public water system that are most likely to be visited regularly by pregnant women and children. In addition:(i) The executive director may waive the requirement of subparagraph (A)(vii) of this paragraph, to submit press releases to the media, as long as the public water system distributes notices to every household served by the system.(ii) The public water system shall implement at least one of the requirements found in subparagraph (A)(iv) of this paragraph.(C) A community water system may apply to the executive director, in writing, to use only the text specified in paragraph (1)(A) - (F) of this subsection, omitting the text specified in paragraph (1)(G) of this subsection, and to post public education materials as described in paragraph (3) of this subsection, omitting the tasks in subparagraph (A) of this paragraph if:(i) The system is a facility, such as a prison or a hospital, where the population served is not capable of or is prevented from making improvements to plumbing or installing point of use treatment devices; and(ii) The system provides water as part of the cost of services provided and does not separately charge for water consumption. (3) Delivery of public education materials by nontransient, noncommunity systems. Systems must provide public education materials meeting the criteria of paragraph (1) of this subsection to the public in accordance with this paragraph.(A) The system must post informational posters on lead in drinking water in a public place or common area in each of the buildings served by the system.(B) The system must distribute informational brochures on lead in drinking water to each person served by the nontransient, noncommunity water system. The executive director may allow the system to utilize electronic transmission in lieu of or combined with printed materials as long as it achieves at least the same coverage.(4) Frequency and timing of public education. A system that exceeds the lead action level must provide educational materials meeting the content requirements of paragraph (1) of this subsection to the public within 60 days after the end of the monitoring period in which the exceedance occurred. For systems that are required to conduct monitoring annually or less frequently, the end of the monitoring period is September 30 of the calendar year in which the sampling occurs, or, if the executive director has established an alternate monitoring period, the last day of that period.(A) Frequency and timing of public education activities for community systems. As long as a community water system exceeds the action level, it must repeat the activities of this paragraph at the frequency contained in this paragraph.(i) A community system shall repeat tasks contained in paragraph (2)(A)(v) of this subsection every billing cycle.(ii) A community system serving a population greater than 100,000 shall post and retain material on a publicly accessible website.(iii) The community system shall repeat the press release task in paragraph (2)(A)(vii) of this subsection twice every 12 months on a schedule agreed upon with the executive director.(B) Frequency and timing of public education activities for nontransient, noncommunity systems. A nontransient, noncommunity water system shall maintain the posting required by repeat the tasks contained in paragraph (3) of this subsection at least once during each calendar year in which the system exceeds the lead action level. Posted materials must remain posted until the system no longer exceeds the lead action level, and the executive director informs the system that the posting may be discontinued.(C) Extension to public education start date. A nontransient, noncommunity system may request, and the executive director can approve, an extension for starting public education beyond the 60-day requirement on a case-by-case basis. The request and approval must be made in writing prior to the 60-day deadline.(D) Discontinuing public education. A system may discontinue delivery of public education materials if the system has met the lead action level during the most recent six-month monitoring period conducted pursuant to subsection (c) of this section. Such a system shall recommence public education in accordance with this section if it subsequently exceeds the lead action level during any monitoring period.(5) Notifying the executive director of public education activities. Any water system that is subject to the public education requirements of this subsection shall, within ten days after the end of each period in which the system is required to perform public education, send written documentation to the executive director containing all the elements in this paragraph.(A) The system must provide documentation that the system has delivered the public education materials that meet the content requirements in paragraph (1) of this subsection and the delivery requirements in paragraph (2) or (3) of this subsection.(B) The system must provide a list of all the newspapers, radio stations, television stations, and facilities and organizations to which the system delivered public education materials during the period in which the system was required to perform public education tasks.(C) The system must resubmit certification of delivery of public education materials every time it distributes materials. Unless required by the executive director, a system that previously has submitted the information required by subparagraphs (A) and (B) of this paragraph need not resubmit the information as long as there have been no changes in the distribution list.(l) Compliance determination. All applicable water systems shall determine compliance based on monitoring and reporting requirements established in this section or contained in 40 CFR Part 141, Subpart I.(1) Compliance determination with action levels of subsection (b) of this section for lead and copper shall be based on the 90th percentile as described in this paragraph.(A) The 90th percentile lead and copper levels shall be computed as provided in this subparagraph:(i) Determination of 90th percentile levels shall be obtained by ranking the results of lead and copper samples collected during a monitoring period in ascending order (lowest concentration is sample Number 1; highest concentration are samples Numbers 10, 20, 30, 40, 50, and so on), up to the total number of samples collected.(ii) The number of samples collected during the monitoring period shall be multiplied by 0.9. The concentration of lead and copper in sample with the number yielded by this calculation is the 90th percentile level, for systems serving 100 or more people.(iii) For water systems serving fewer than 100 people, the 90th percentile level is computed by taking the average of the highest two sample results.(iv) For a public water system that has been allowed by the executive director to collect fewer than five samples in accordance with subsection (c)(1)(F) of this section, the sample result with the highest concentration is considered the 90th percentile value.(B) A sample invalidated under this section does not count toward determining lead or copper 90th percentile levels or toward meeting the minimum number of tap sample requirements.(C) Monitoring approved by the executive director and conducted by systems in addition to the minimum requirements of this section shall be considered by the executive director in making any determination of compliance.(D) The system is in compliance with the lead or copper action levels if the 90th percentile level of lead or copper, respectively, is equal to or less than the action levels specified in subsection (b)(1) of this section.(2) Compliance determination for water quality parameters. If a water system fails to meet the OWQP values or ranges approved by the executive director, it is out of compliance with this section. WQP confirmation sample results will be included in compliance determination. (A) A OWQP-range excursion occurs whenever the daily value for one or more WQPs measured at a sampling location is below a minimum value or outside a range approved by the executive director. The executive director has the discretion to delete results of obvious sampling errors from this calculation. Daily values are calculated as follows.(i) Water systems that collect more than one WQP measurement in one day must record the daily value as an average of all WQP values collected during the day regardless of whether the measurements are collected through continuous monitoring, grab sampling, or a combination of both.(ii) On days when only one measurement for the WQP is collected at the sampling location, the daily value shall be the result of that measurement.(iii) On days when no measurement is collected for the WQP at the sampling location, the daily value last calculated on the most recent day shall serve as the daily value.(B) Compliance periods for this paragraph are two six-month periods, January 1 to June 30, and July 1 to December 31. A water system is out of compliance with this subsection for a six-month period if the water system has OWQP excursions for any approved range for more than nine days during that period.(C) The results of any monitoring conducted in addition to the minimum requirements of this section shall be considered by the system and the executive director in making any determinations under this section.(D) The executive director may delete results of obvious sampling errors from this calculation.(3) Compliance determination for source water treatment. A system required to install and operate source water treatment for lead or copper under subsection (g) of this section is out of compliance if the level of lead or copper in any sample collected under subsection (d)(2)(D)(v) of this section is greater than the MPL designated by the executive director. The initial and confirmation sample shall be averaged in determining compliance. Any sample value below the method detection limit shall be considered to be zero. Any value above the method detection limit but below the PQL shall either be considered as the measured value or be considered one-half the PQL.(4) Compliance determination for public education. Failure to deliver public education materials required under subsection (k) of this section to customers is a public notification violation. Failure to certify delivery of public education materials to the executive director is a reporting violation.(5) Failure to conduct or report any requirements of this section shall constitute a monitoring, reporting or treatment technique violation and shall be a violation of these standards.(m) Lead service line replacement. The provisions of 40 CFR §141.84 and §141.90(e) relating to lead service line replacement are adopted by reference. Any system exceeding the lead action level after implementation of applicable corrosion control and source water treatment requirements shall complete the lead service line replacement requirements contained in 40 CFR §141.84. Any such water system shall submit reports required under 40 CFR §141.90(e). (n) Additional sampling. The executive director may require systems to sample at additional times or locations in order to ensure that systems maintain minimal levels of corrosion in the distribution system.</content><note type="source"><p>Source Note: The provisions of this §290.117 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.118"><num value="290.118">§290.118</num><heading>Secondary Constituent Levels</heading><content>(a) Applicability for secondary constituents. The requirements for secondary constituents apply to all public water systems. Water that does not meet the secondary constituent levels may not be used for public drinking water without written approval from the executive director. When drinking water that does not meet the secondary constituent levels is accepted for use by the executive director, such acceptance is valid only until such time as water of acceptable chemical quality can be made available at reasonable cost to the area(s) in question.(b) Secondary constituent levels. The maximum secondary constituent levels are as follows.Attached Graphic(c) Monitoring frequency for secondary constituents. All public water systems shall monitor for secondary constituents at the following frequency.(1) Each groundwater source shall be sampled once every three years at the entry point to the distribution system.(2) Each surface water source shall be sampled annually at the entry point to the distribution system.(3) Each of the sampling frequencies listed in paragraph (3) of this subsection constitute one round of sampling for groundwater and surface water systems, respectively.(d) Analytical requirements for secondary constituents. All analyses for determining compliance with the provisions of this subsection shall be conducted in accordance with §290.119 of this title (relating to Analytical Procedures) at a facility certified by the executive director.(e) Reporting requirements for secondary constituents. Any owner or operator of a public water system subject to the provisions of this section is required to report to the executive director the results of any test, measurement, or analysis required to be made by this section within ten days following receipt of results of such test, measurement, or analysis.(f) Compliance determination for secondary constituents. Compliance with the requirements of this subsection shall be based on the following criteria:(1) A public water system that fails to conduct the monitoring tests required by this subsection commits a monitoring violation;(2) A public water system that fails to report the results of the monitoring tests required by this subsection commits a reporting violation; and(3) A public water system that exceeds the secondary constituent levels in subsection (b) of this section commits a secondary constituents level violation.(g) Public notification for secondary constituents. Public notification must be consistent with the requirements of §290.122 of this title (relating to Public Notification).(1) Community and nontransient, noncommunity water systems that exceed the secondary constituent level for fluoride but are below the maximum contaminant level listed in §290.106 of this title (relating to Inorganic Contaminants) must notify the public. The notice must be made annually by including it with the water bill or by separate mailing to all customers. The form and content of the notice shall be as prescribed by the executive director.(2) If a system exceeds the secondary constituent levels, notice must be given to new customers and in the annual Consumer Confidence Report.</content><note type="source"><p>Source Note: The provisions of this §290.118 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.119"><num value="290.119">§290.119</num><heading>Analytical Procedures</heading><content>(a) Acceptable laboratories. Samples collected to determine compliance with the requirements of this chapter shall be analyzed at accredited or approved laboratories.(1) Samples used to determine compliance with the maximum contaminant levels, samples used to determine compliance with action level, and raw groundwater source monitoring requirements of this subchapter, and samples for microbial contaminants must be analyzed by a laboratory accredited by the executive director in accordance with Chapter 25, Subchapter A and B of this title (relating to General Provisions; and Environmental Testing Laboratory Accreditation) using acceptable analytical methods as specified in subsection (b) of this section. These samples include:(A) compliance samples for synthetic organic chemicals;(B) compliance samples for volatile organic chemicals;(C) compliance samples for inorganic contaminants;(D) compliance samples for radiological contaminants;(E) compliance samples for microbial contaminants;(F) compliance samples for total trihalomethanes (TTHM);(G) compliance samples for haloacetic acid-group of five (HAA5);(H) compliance samples for chlorite;(I) compliance samples for bromate; and(J) compliance samples for lead and copper.(2) Samples used to determine compliance with the treatment technique requirements and maximum residual disinfectant levels (MRDLs) of this subchapter must be analyzed by a laboratory approved by the executive director. These samples include:(A) compliance samples for turbidity treatment technique requirements;(B) compliance samples for the chlorine MRDL;(C) compliance samples for the chlorine dioxide MRDL;(D) compliance samples for the combined chlorine (chloramine) MRDL;(E) compliance samples for the disinfection byproduct precursor treatment technique requirements, including alkalinity, total organic carbon, dissolved organic carbon analyses, and specific ultraviolet absorbance;(F) samples used to monitor chlorite levels at the point of entry to the distribution system; and(G) samples used to determine pH.(3) Non-compliance tests, such as control tests taken to operate the system, may be run in the plant or at a laboratory of the system's choice.(b) Acceptable analytical methods. Methods of analysis shall be as specified in 40 Code of Federal Regulations (CFR) or by any alternative analytical technique as specified by the executive director and approved by the Administrator under 40 CFR §141.27. Copies are available for review in the Water Supply Division, MC 155, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087. The following National Primary Drinking Water Regulations set forth in Title 40 CFR are adopted by reference:(1) 40 CFR §141.852(a) and (c) for microbiological analyses;(2) 40 CFR §141.74(a)(1) for turbidity analyses;(3) 40 CFR §141.23(k) for inorganic analyses;(4) 40 CFR §141.24(e) - (g) for organic analyses;(5) 40 CFR §141.25 for radionuclide analyses;(6) 40 CFR §141.131(a) and (b) for disinfection byproduct methods and analyses;(7) 40 CFR §141.131(c) for disinfectant analyses other than ozone, and 40 CFR §141.74(b) for ozone disinfectant;(8) 40 CFR §141.131(d) for alkalinity analyses, bromide and magnesium, total organic carbon analyses, dissolved organic carbon analyses, specific ultraviolet absorbance analyses, and pH analyses;(9) 40 CFR §141.89 for lead and copper analyses and for water quality parameter analyses that are performed as part of the requirements for lead and copper;(10) 40 CFR §141.402(c) for groundwater source microbiological analyses; and(11) if a method is not contained in this section, a drinking water quality method can be approved for analysis if it is listed in 40 CFR Part 141, Subpart C, Appendix A.(c) The definition of detection contained in 40 CFR §141.151(d) is adopted by reference.</content><note type="source"><p>Source Note: The provisions of this §290.119 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective November 8, 2012, 37 TexReg 8849; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.121"><num value="290.121">§290.121</num><heading>Monitoring Plans</heading><content>(a) Applicability. All public water systems shall maintain an up-to-date chemical and microbiological monitoring plan. Monitoring plans are subject to the review and approval of the executive director. A copy of the monitoring plan must be maintained at each water treatment plant and at a central location.(b) Monitoring plan requirements. The monitoring plan shall identify all sampling locations, describe the sampling frequency, and specify the analytical procedures and laboratories that the public water system will use to comply with the monitoring requirements of this subchapter.(1) The monitoring plan shall include information on the location of all required sampling points in the system. Required sampling locations for regulated chemicals are provided in §290.106 of this title (relating to Inorganic Contaminants), §290.107 of this title (relating to Organic Contaminants), §290.108 of this title (relating to Radionuclides Other than Radon), §290.109 of this title (relating to Microbial Contaminants), §290.110 of this title (relating to Disinfectant Residuals), §290.111 of this title (relating to Surface Water Treatment), §290.112 of this title (relating to Total Organic Carbon (TOC)), §290.113 of this title (relating to Stage 1 Disinfection Byproducts (TTHM and HAA5)), §290.114 of this title (relating to Other Disinfection Byproducts (Chlorite and Bromate)), §290.115 of this title (relating to Stage 2 Disinfection Byproducts (TTHM and HAA5)), §290.116 of this title (Relating to Groundwater Corrective Actions and Treatment Techniques), §290.117 of this title (relating to Regulation of Lead and Copper), and §290.118 of this title (relating to Secondary Constituent Levels).(A) The location of each sampling site at a treatment plant or pump station must be designated on a plant schematic. The plant schematic must show all water pumps, flow meters, unit processes, chemical feed points, and chemical monitoring points. The plant schematic must also show the origin of any flow stream that is recycled at the treatment plant, any pretreatment that occurs before the recycle stream is returned to the primary treatment process, and the location where the recycle stream is reintroduced to the primary treatment process.(B) Each entry point to the distribution system shall be identified in the monitoring plan as follows:(i) a written description of the physical location of each entry point to the distribution system shall be provided; or(ii) the location of each entry point shall be indicated clearly on a distribution system or treatment plant schematic.(C) The address of each sampling site in the distribution system shall be included in the monitoring plan or the location of each distribution system sampling site shall be designated on a distribution system schematic. The distribution system schematic shall clearly indicate the following:(i) the location of all pump stations in the distribution system;(ii) the location of all ground and elevated storage tanks in the distribution system; and(iii) the location of all chemical feed points in the distribution system.(D) The system must revise its monitoring plan if changes to a plant or distribution system require changes to the sampling locations.(2) The monitoring plan must include a written description of sampling frequency and schedule.(A) The monitoring plan must include a list of all routine samples required on a daily, weekly, monthly, quarterly, annual, or less frequent basis and identify the sampling location where the samples will be collected.(B) The system must maintain a current record of the sampling schedule.(3) The monitoring plan shall include the public water system's Sample Siting Plan as required by §290.109(d)(1) - (6) of this title. The public water system's Sample Siting Plan shall include a list of all microbial distribution compliance monitoring sites as required by §290.109(d) of this title, including all routine and repeat microbial sample sites. As required by §290.109(d)(2)(G) of this title, a public water system that collects more than the minimum number of required routine microbial samples shall include the additional routine sample sites in the public water system's Sample Siting Plan. In addition, a public water system that is required to collect any associated raw groundwater source(s) compliance samples, as required by §290.109(d)(4) of this title, shall include the microbial raw groundwater well compliance sites in the public water system's Sample Siting Plan. The repeat sample sites, as required by §290.109(d)(3) of this title, shall be associated to their originating routine microbial sample sites. The Sample Siting Plan shall include all groundwater sources and any associated sampling points necessary to meet the requirements of §290.109(d) of this title.(4) The monitoring plan must identify the analytical procedures that will be used to perform each of the required analyses.(5) The monitoring plan must identify all laboratory facilities that may be used to analyze samples required by this chapter.(6) The monitoring plan shall include a written description of the methods used to calculate compliance with all maximum contaminant levels, maximum residual disinfectant levels, and treatment techniques that apply to the system.(7) The monitoring plan shall include any groundwater source water monitoring plan developed under §290.109(d)(4) of this title to specify well sampling for triggered coliform monitoring.(8) The monitoring plan shall include any initial distribution system evaluation compliance documentation required by §290.115(c)(5) of this title. The monitoring plan must be revised to show Stage 2 sample sites by the date shown in Figure: 30 TAC §290.115(a)(2) titled "Date to Start Stage 2 Compliance."(9) The monitoring plan shall include any raw surface water monitoring plan required under §290.111 of this title.(c) Reporting requirements. All public water systems shall maintain a copy of the current monitoring plan at each treatment plant and at a central location. The water system must update the monitoring plan when the water system's sampling requirements or protocols change.(1) Public water systems that treat surface water or groundwater under the direct influence of surface water must submit a copy of the monitoring plan to the executive director upon development and revision.(2) Public water systems that treat groundwater that is not under the direct influence of surface water or purchase treated water from a wholesaler must develop a monitoring plan and submit a copy of the monitoring plan to the executive director upon request.(3) All water systems must provide the executive director with any revisions to the plan upon request.(d) Compliance determination. Compliance with the requirements of this section shall be determined using the following criteria.(1) A public water system that fails to submit an administratively complete monitoring plan by the required date documented in a request from the executive director or fails to submit updates to a plan when changes are made to a system's surface water treatment commits a reporting violation.(2) A public water system that fails to maintain an up-to-date monitoring plan commits a monitoring violation.(e) Public notification. A community system that commits a violation described in subsection (d) of this section shall notify its customers of the violation in the next Consumer Confidence Report that is issued by the system.</content><note type="source"><p>Source Note: The provisions of this §290.121 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective December 23, 2004, 29 TexReg 11729; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scF/s290.122"><num value="290.122">§290.122</num><heading>Public Notification</heading><content>(a) Tier 1 public notification requirements for acute violations or situations with significant potential to have serious adverse effects on human health as a result of short-term exposure which require a Tier 1 public notice as described in this subsection. The owner or operator of a public water system must notify persons served by their system of any maximum contaminant level (MCL), maximum residual disinfectant level (MRDL), treatment technique violation, or other situation that poses an acute threat to public health. Each notice required by this section must meet the requirements of subsection (d) of this section.(1) Situations that pose an acute threat to public health include:(A) a violation of the Escherichia coli (E. coli) MCL as described in §290.109(g)(1)(A) - (D) of this title (relating to Microbial Contaminants);(B) an acute turbidity issue at a treatment plant that is treating surface water or groundwater under the direct influence of surface water, specifically:(i) a combined filter effluent turbidity level above 5.0 nephelometric turbidity units (NTU);(ii) a combined filter effluent turbidity level above 1.0 NTU at a treatment plant using membrane filters;(iii) a combined filter effluent turbidity level above 1.0 NTU at a plant using other than membrane filters at the discretion of the executive director after consultation with the system;(iv) failure of a system with treatment other than membrane filters to consult with the executive director within 24 hours after a combined filter effluent reading of 1.0 NTU;(v) failure of a system to meet turbidity level, monitoring, and/or reporting requirements as described in §290.111(i)(3) of this title (relating to Surface Water Treatment); or(vi) failure of a system to meet treatment, turbidity level, monitoring, and/or reporting requirements as described in §290.111(i)(4) of this title;(C) a violation of the MCL for nitrate or nitrite as defined in §290.106(f)(2) of this title (relating to Inorganic Contaminants);(D) a violation of the acute MRDL for chlorine dioxide as defined in §290.110(f)(5)(A) or (B) of this title (relating to Disinfectant Residuals);(E) occurrence of a waterborne disease outbreak;(F) Detection of E. coli or other fecal indicators in source water samples as specified in §290.109(h)(2) of this title, which requires a public notice to be issued within 24 hours of notification of the positive sample;(G) other situations that have the potential to have serious adverse effects on health as a result of short-term exposure; and(H) at the discretion of the executive director, other situations may require a Tier 1 public notice based on a threat to public health.(2) The initial Tier 1 acute public notice and/or boil water notice required by this subsection shall be issued as soon as possible, but in no case later than 24 hours after the violation or situation is identified. The initial public notice for an acute violation or situation shall be issued in one or more of the following manners that are reasonably calculated to reach persons served by the public water system within the required time period.(A) The owner or operator of a public water system with an acute microbiological or turbidity violation as described in paragraph (1)(A) or (B) of this subsection shall include a boil water notice issued in accordance with the requirements of §290.46(q) of this title (relating to Minimum Acceptable Operating Practices for Public Drinking Water Systems). Public water systems are not required to issue a boil water notice under the conditions as referenced in paragraph (1)(B)(vi) of this subsection, unless required at the discretion of the executive director in accordance with §290.46(q)(5) of this title.(B) The owner or operator of a community water system shall furnish a copy of the notice to the radio and television stations serving the area served by the public water system.(C) The owner or operator of a community water system shall publish the notice in a daily newspaper of general circulation in the area served by the system. If the area is not served by a daily newspaper of general circulation, notice shall instead be issued by direct delivery or by continuous posting in conspicuous places within the area served by the system. Other methods of delivery may include electronic delivery or alert systems (e.g., reverse 911).(D) The owner or operator of a noncommunity water system shall issue the notice by direct delivery or by continuously posting the notice in conspicuous places within the area served by the water system. Other methods of delivery may include electronic delivery or alert systems (e.g., reverse 911).(E) If notice is provided by posting, the posting must remain in place for as long as the violation or situation exists or seven days, whichever is longer.(3) The owner or operator of a water system required to issue an initial notice for an acute MCL or treatment technique violation shall issue additional notices. The additional public notices for acute violations shall be issued in the following manner.(A) Not later than 45 days after the violation, the owner or operator of a community water system shall notify persons served by the system using mail (by direct mail or with the water bill) or hand delivery. The executive director may waive mail or hand delivery if it is determined that the violation was corrected within the 45-day period. The executive director must make the waiver in writing and within the 45-day period.(B) The owner or operator of a community water system must issue a notice at least once every three months by mail delivery (by direct mail or with the water bill) or by hand delivery, for as long as the violation exists.(C) If the owner or operator of a noncommunity water system issued the initial notice by continuous posting, posting must continue for as long as the violation exists and in no case less than seven days. If the owner or operator of a noncommunity water system issued the initial notice by direct delivery, notice by direct delivery must be repeated at least every three months for as long as the violation exists.(4) Copies of all notifications required under this subsection must be submitted to the executive director within ten days of its distribution.(b) Tier 2 public notification requirements for other MCL, MRDL, or treatment technique violations and for variance and exemption violations which are violations and situations with potential to have serious adverse effects on human health, as defined in this subsection. The owner or operator of a public water system must notify persons served by their system of any MCL, MRDL, or treatment technique violation other than those described in subsection (a)(1) of this section and of any violation involving a variance or exemption requirement. Each notice required by this section must meet the requirements of subsection (d) of this section.(1) Violations that require notification under this subsection include:(A) any violation of an MCL, MRDL, or treatment technique not listed under subsection (a) of this section;(B) failure to comply with the requirements of any variance or exemption granted under §290.102(d) of this title (relating to General Applicability);(C) failure for a groundwater system to take corrective action, including uncorrected significant deficiencies, or failure to maintain at least 4-log treatment of viruses (using inactivation, removal, or a combination of 4-log virus inactivation and removal approved by the executive director) before or at the first customer under §290.116 of this title (relating to Groundwater Corrective Actions and Treatment Techniques);(D) failure to perform any three months of raw surface water monitoring as required by §290.111(b) of this title or request bin classification from the executive director under §290.111(c)(3)(A) of this title;(E) other violations or situations deemed by the executive director to have significant potential to have serious adverse effects on human health as a result of short-term exposure may require a Tier 1 public notice as described in subsection (a)(2) of this section; or(F) failure of a public water system to conduct Level 1 assessment(s) or Level 2 assessment(s) or failure to complete corrective/expedited action(s) as required by §290.109 of this title or failure of a system to conduct seasonal start-up procedures as required by §290.109 of this title.(2) The initial Tier 2 public notice for any violation, situation, or significant deficiency identified in this subsection must be issued as soon as possible, but in no case later than 30 days after the violation is identified. The initial public notice shall be issued in the following manner.(A) The owner or operator of a community water system shall issue the notice by:(i) mail or other direct delivery to each customer receiving a bill and to other service connections to which water is delivered by the public water system; and(ii) any other method reasonably calculated to reach other persons regularly served by the system, if they would not normally be reached by the notice required in clause (i) of this subparagraph. Such persons may include those who do not pay water bills or do not have service connection addresses (e.g., house renters, apartment dwellers, university students, nursing home patients, prison inmates, etc.) Other methods may include: publication in a local newspaper; delivery of multiple copies for distribution by customers that provide drinking water to others (e.g., apartment building owners or large private employers); continuous posting in conspicuous public places within the area served by the system or on the Internet; electronic delivery or alert systems (e.g., reverse 911); or delivery to community organizations.(B) The owner or operator of a noncommunity water system shall issue the notice by:(i) posting the notice in conspicuous locations throughout the distribution system frequented by persons served by the system, or by mail or direct delivery to each customer and service connection (where known); and(ii) any other method reasonably calculated to reach other persons served by the system if they would not normally be reached by the notice. Such persons may include those served who may not see a posted notice because the posted notice is not in a location they routinely pass by. Other methods may include: publication in a local newspaper or newsletter distributed to customers; use of e-mail to notify employees or students; electronic delivery or alert systems (e.g., reverse 911); or, delivery of multiple copies in central locations (e.g., community centers).(C) If notice is provided by posting, the posting must remain in place for as long as the violation exists or seven days, whichever is longer.(3) The owner or operator of a system required to issue an initial violation notice shall issue additional notices. The additional notices shall be issued in the following manner.(A) The owner or operator of a community water system must issue a notice at least once every three months by mail delivery (by direct mail or with the water bill) or by direct delivery, for as long as the violation exists.(B) If the owner or operator of a noncommunity water system issued the initial notice by continuously posting the notice, the posting must continue for as long as the violation exists, and in no case less than seven days. If the owner or operator of a noncommunity water system issued the initial notice by direct delivery, notice by direct delivery must be repeated at least every three months for as long as the violation exists.(c) Tier 3 public notification requirements for other violations, situations, variances, exemptions as defined in this subsection. The owner or operator of a public water system who fails to perform monitoring required by this chapter, fails to comply with a testing procedure established by this chapter, or is subject to a variance or exemption granted under §290.102(b) of this title shall notify persons served by the system. Each notice required by this section must meet the requirements of subsection (d) of this section.(1) Violations or other situations that require notification as described in this subsection include:(A) exceedance of the secondary constituent levels (SCL) for fluoride;(B) failure to perform monitoring or reporting required by this subchapter;(C) failure to comply with the analytical requirements or testing procedures required by this subchapter;(D) operating under a variance or exemption granted under §290.102(b) of this title;(E) failure to maintain records on recycle practices as required by §290.46(f)(3)(C)(iii) of this title;(F) a community and nontransient, noncommunity public water system shall notify its customers of the availability of unregulated contaminant monitoring results, as required under 40 Code of Federal Regulations (CFR) §141.207;(G) failure of a community and nontransient, noncommunity water public water system to notify of the availability of unregulated contaminant monitoring results, as required under 40 CFR §141.207;(H) failure of a public water system to maintain any assessment form, regardless of who conducts the assessment, and documentation of corrective actions completed as a result of those assessments, or documentation of corrective actions required but not yet complete, or other available summary documentation of the sanitary defects and corrective actions taken under §290.109 of this title;(I) failure of a public water system to maintain a record of any repeat sample taken that meets the criteria for an extension of the 24-hour period for collecting repeat samples under §290.109 of this title;(J) other violations or situations deemed by the executive director to pose an acute risk to human health or with significant potential to have serious adverse effects on human health as a result of short-term exposure may require a Tier 1 public notice as described in subsection (a)(2) of this section;(K) other violations or situations at the, discretion of the executive director, may require a Tier 2 public notice as described in subsection (b)(2) of this section; and(L) failure to maintain records for seasonal start-up procedures and seasonal start-up procedures certification form(s) as required by §290.109 of this title.(2) The initial Tier 3 public notice issued pursuant to this section shall be issued no later than one year after the public water system learns of the violation or situation or begins operating under a variance or exemption. Following the initial notice, the public water system shall repeat the notice annually for as long as the violation, variance, exemption, or other situation persists. If the public notice is posted, the notice shall remain in place for as long as the violation, variance, exemption, or other situation persists, but in no case less than seven days even if the violation or situation is resolved. The initial public notice shall be issued in the following manner.(A) The owner or operator of a community water system shall issue the notice by mail or other direct delivery to each customer receiving a bill and to other service connections. The owner or operator of a noncommunity water system shall issue the notice by either posting the notice in conspicuous locations throughout the distribution system frequented by persons served by the system, or by mail or direct delivery to each customer and service connection. Other methods of delivery may include electronic delivery or alert systems (e.g., reverse 911).(B) The owner or operator of any public water system shall also notify the public using another method reasonably calculated to reach other persons regularly served by the system, if they would not normally be reached by the notice required in subparagraph (A) of this paragraph. Such persons may include people who do not pay water bills or do not have service connection addresses (e.g., house renters, apartment dwellers, university students, nursing home patients, prison inmates, etc.). These other methods may include publication in a local newspaper; delivery of multiple copies for distribution by customers that provide their drinking water to others (e.g., apartment building owners or large private employers); posting in public places or on the Internet; or delivery to community organizations. Other methods of delivery may include electronic delivery or alert systems (e.g., reverse 911).(C) For community public water systems, the Consumer Confidence Report (CCR) as required under Subchapter H of this chapter (relating to Consumer Confidence Reports) may be used for delivering the initial Tier 3 public notice and all required repeat notices, under the following conditions.(i) The CCR is provided to persons served no later than 12 months after the public water system learns of the violation or situation as described under paragraph (1) of this subsection.(ii) The Tier 3 notice contained in the CCR follows the content requirements under §290.272 of this title (relating to Content of the Report).(iii) The CCR is distributed following the delivery requirements under §290.274 of this title (relating to Report Delivery and Recordkeeping).(D) If notice is provided by posting, the posting must remain in place for as long as the violation exists or seven days, whichever is longer.(3) The owner or operator of a system required to issue an initial violation notice shall issue additional notices. The additional notices shall be issued in the following manner.(A) The owner or operator of a community water system shall issue repeat notices at least once every 12 months by mail delivery (by direct mail or with the water bill) or by hand delivery, for as long as the violation exists or variance or exemption remains in effect. Repeat public notice may be included as part of the CCR as described in paragraph (2) of this subsection.(B) If the owner or operator of a noncommunity water system issued the initial notice by continuously posting the notice, the posting must continue for as long as the violation exists, and in no case less than seven days. If the owner or operator of a noncommunity water system issued the initial notice by direct delivery, notice by direct delivery must be repeated at least every 12 months for as long as the violation exists.(d) Each public notice must conform to the following general requirements.(1) The notice must contain a clear and readily understandable explanation of the violation, significant deficiency, or situation that led to the notification. The notice must not contain very small print, unduly technical language, formatting, or other items that frustrate or defeat the purpose of the notice.(2) If the notice is required for a specific event or significant deficiency, it must state when the event occurred or the date the significant deficiency was identified by the executive director.(3) For notices required under subsections (a), (b), or (c)(1)(A) of this section, the notice must describe potential adverse health effects.(A) For MCL, MRDL, or treatment technique violations or situations (including uncorrected significant deficiencies), the notice must contain the mandatory federal contaminant-specific language contained in 40 CFR Part 141, Subpart Q, Appendix B, in addition to any language required by the executive director. For violations of the condition of a variance or exemption, the notice must contain the health effects information and include the items and schedule milestones of the variance or exemption.(B) For fluoride SCL violations, the notice must contain the mandatory federal contaminant-specific language contained in 40 CFR §141.208, in addition to any language required by the executive director.(C) For failure to perform any three months of raw surface water monitoring or request bin classification from the executive director, the notice must contain the mandatory federal contaminant specific language contained in 40 CFR §141.211(d)(1) and (2), respectively, in addition to any language required by the executive director.(D) The notice must describe the population at risk, especially subpopulations particularly vulnerable if exposed to the given contaminant.(4) The notice must state what actions the water system is taking to correct the violation or situation, and when the water system expects to return to compliance. For groundwater systems with significant deficiencies, the notice must contain the executive director-approved plan and schedule for correction of the significant deficiency, including interim measures, progress to date, and any interim measures completed.(5) The notice must state whether alternative drinking water sources should be used, and what other actions consumers should take, including when they should seek medical help, if known.(6) Each notice must contain the name, business address and telephone number at which consumers may contact the owner, operator, or designee of the public water system for additional information concerning the notice.(7) Where appropriate, the notice must be multilingual. The multilingual notice must explain the importance of the notice or provide a telephone number or address where consumers may contact the system to obtain a translated copy of the notice or assistance in the appropriate language.(8) The notice shall include a statement to encourage the notice recipient to distribute the public notice to the other persons served. Public water systems must include in their notice the following language: Please share this information with all the other people who drink this water, especially those who may not have received this notice directly (for example, people in apartments, nursing homes, schools, and businesses). You can do this by posting this notice in a public place or distributing copies by hand or mail.(9) Systems with variances or exemptions must notify in accordance with 40 CFR §141.205(b).(10) Systems must notify customers at sampled taps of the results of any required lead or copper analyses and certify completion of the notification to the executive director.(e) Notice to new billing units. The owner or operator of a community water system must give a copy of the most recent public notice for any outstanding violation of any MCL, or any treatment technique requirement, or any variance or exemption schedule to all new billing units or new hookups prior to or at the time service begins. The owner or operator of a noncommunity water system must continuously post the public notice in conspicuous locations in order to inform new consumers of any continuing violation, variance or exemption, or other situation requiring a public notice for as long as the violation, variance, exemption, or other situation persists.(f) Proof of public notification. A copy of any public notice required under this section must be submitted to the executive director within ten days of its distribution as proof of public notification. The copies must be mailed to the Water Supply Division, MC 155, Texas Commission on Environmental Quality, P.O. Box 13087, Austin, Texas 78711-3087 or other method of submission as specified by the executive director. Each proof of public notification must be accompanied with a signed Certificate of Delivery.(g) Notice to consecutive systems. All public water systems shall provide public notice to persons served by the public water system in accordance with this section. All public water systems that are required to issue public notice to persons in accordance with this section, and that sell or otherwise provide drinking water to other public water systems (i.e., consecutive systems), shall provide public notice to the owner or operator of the consecutive system. The consecutive system is responsible for and shall provide public notice to the persons it serves in accordance with this section.(h) Notices given by the executive director. The executive director may give the notice required by this section on behalf of the owner and operator of the public water system following the requirements of this section. The owner or operator of the public water system remains responsible for ensuring that the requirements of this section are met.(i) If a public water system has a violation in a portion of the distribution system that is physically or hydraulically isolated from other parts of the distribution system, the executive director may allow the system to limit distribution of the public notice to only persons served by that portion of the system which is out of compliance. Permission by the executive director for limiting distribution of the notice must be granted in writing.(j) The owner or operator of a public water system that furnishes for public or private use drinking water containing added fluoride may not permanently terminate the fluoridation of drinking water unless the owner or operator provides written notice to persons served by the public water system and to the executive director of the termination of fluoridation at least 60 days before the termination. The public notice to persons served by the public water system pursuant to this section shall be issued using the delivery methods described in subsection (c)(2)(A) of this section. Proof of public notification issued pursuant to this subsection shall be submitted in accordance with subsection (f) of this section.</content><note type="source"><p>Source Note: The provisions of this §290.122 adopted to be effective September 13, 2000, 25 TexReg 8880; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective May 16, 2002, 27 TexReg 4127; amended to be effective February 19, 2004, 29 TexReg 1373; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective November 8, 2012, 37 TexReg 8849; amended to be effective March 30, 2017, 42 TexReg 1466; amended to be effective September 17, 2020, 45 TexReg 6375.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c290/scG"><num value="G">SUBCHAPTER G</num><heading>WATER SAVING PERFORMANCE STANDARDS</heading><section identifier="/us/state/tx/tac/t30/p1/c290/scG/s290.251"><num value="290.251">§290.251</num><heading>Purpose, Authority, and Definitions</heading><content>(a) Purpose. The purpose of this subchapter is to establish water saving performance standards and labeling requirements for plumbing fixtures; establish labeling requirements for dishwashing machines, lawn sprinklers, and clothes washing machines; and establish reporting requirements for clothes washing machines. This subchapter applies to plumbing fixtures, dishwashing machines, lawn sprinklers, and clothes washing machines that are manufactured, imported, or otherwise supplied for sale in Texas unless the item is manufactured exclusively for sale outside of the state. (b) Authority. The authority for these sections is Texas Health and Safety Code, Chapter 372, titled Environmental Performance Standards for Plumbing Fixtures. (c) Definitions. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise. (1) ANSI--The American National Standards Institute. (2) Commercial pre-rinse spray valve--A handheld device that is designed and marketed for use with commercial dishwashing and ware washing equipment and that is used to spray water on dishes, flatware, and other food service items to remove food residue before the items are cleaned in a dishwasher or ware washer or by hand. (3) Import--The physical movement of merchandise into the State of Texas, including shipments to distributors, shipments to factory distributing branches, direct factory sales, shipments to retailers, shipments to factory distributing branches, shipments to sales districts, and shipments to factory-owned distributing outlets. (4) Importer--A business or individual that brings into the state plumbing fixtures from other countries or states for resale or installation (other than for their own domicile) within the state. (5) Major supplier--A business or individual that provides plumbing fixtures to others for resale or installation (other than for their own domicile) within the state. (6) Manufacturer--Someone who manufactures plumbing fixtures or clothes washing machines. (7) Model--A type or design of a plumbing fixture. (8) Order--A request to purchase plumbing fixtures from a manufacturer, major supplier, or importer. (9) Plumbing fixture--A device that receives water, waste, or both and discharges the water, waste, or both into a drainage system. The term includes a kitchen sink, utility sink, lavatory, bidet, bathtub, shower, urinal, toilet, flush valve toilet, or drinking water fountain. (10) Plumbing fixture fitting--A device that controls and directs the flow of water. The term includes a sink faucet, lavatory faucet, shower head, bath filler, or commercial pre-rinse spray valve. (11) Pressurized flushing device--A device that contains a valve that: (A) is attached to a pressurized water supply pipe that is of sufficient size to deliver water at the necessary rate of flow to ensure flushing when a valve is open; and (B) opens on actuation to allow water to flow into the fixture at a rate and in a quantity necessary for the proper operation of the fixture and gradually closes to avoid water hammer. (12) Toilet--A water closet. (13) Water closet--A plumbing fixture that has a water containing receptor that receives liquid and solid body waste and, on actuation, conveys the waste through an exposed integral trap seal into a drainage system. (14) Water consumption factor--The quotient of the total weighted per cycle consumption divided by the capacity of the clothes washer, as stated in 10 Code of Federal Regulations Part 430, Subpart B, Appendix J, September 1, 2001.</content><note type="source"><p>Source Note: The provisions of this §290.251 adopted to be effective March 17, 1992, 17 TexReg 1646; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective January 7, 1994, 18 TexReg 9935; amended to be effective June 30, 2002, 27 TexReg 5797; amended to be effective January 5, 2006, 30 TexReg 8956; amended to be effective April 25, 2010, 35 TexReg 3066.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scG/s290.252"><num value="290.252">§290.252</num><heading>Design Standards</heading><content>(a) A person may not sell, offer for sale, distribute, or import into the State of Texas a plumbing fixture for use in the state unless the plumbing fixture meets the water saving performance standards provided by subsection (b) of this section and the plumbing fixture is listed in §290.253 of this title (relating to Plumbing Fixture List).(b) The water saving performance standards for a plumbing fixture are the following standards:(1) The maximum flow from a sink or lavatory faucet or a faucet aerator shall not exceed 2.20 gallons of water per minute at a pressure of 60 pounds per square inch.(2) The maximum flow from a shower head shall not exceed 2.5 gallons of water per minute at a constant pressure over 80 pounds per square inch.(3) The maximum volume of water per flush from a urinal and the associated flush valve, if any, sold, offered for sale, or distributed in this state before January 1, 2014:(A) maximum flow shall not exceed an average of one gallon of water per flush; and(B) the urinal and the associated flush valve, if any, must meet the performance, testing, and labeling requirements prescribed by the American Society of Mechanical Engineers Standard A112.19.2-2008 and Canadian Standards Association Standard B45.1-2008 "Vitreous China Plumbing Fixtures and Hydraulic Requirements for Water Closets and Urinals."(4) Except as provided for in §290.256 of this title (relating to Exemptions), for a urinal and the associated flush valve, if any, sold, offered for sale, or distributed in this state on or after January 1, 2014:(A) maximum flow shall not exceed an average of 0.5 gallons of water per flush; and(B) the urinal and the associated flush valve, if any, must meet the performance, testing, and labeling requirements prescribed by the following standards, as applicable:(i) American Society of Mechanical Engineers Standard A112.19.2-2008 and Canadian Standards Association Standard B45.1-2008 "Vitreous China Plumbing Fixtures and Hydraulic Requirements for Water Closets and Urinals;" or(ii) American Society of Mechanical Engineers Standard A112.19.19-2006 "Vitreous China Nonwater Urinals."(5) For a toilet sold, offered for sale, or distributed in this state before January 1, 2014:(A) The maximum volume of water per flush shall not exceed an average of 1.60 gallons; and(B) The toilet must meet the performance, testing, and labeling requirements prescribed by the following standards, as applicable:(i) American Society of Mechanical Engineers Standard A112.19.2-2008 and Canadian Standards Association Standard B45.1-2008 "Vitreous China Plumbing Fixtures and Hydraulic Requirements for Water Closets and Urinals;" and(ii) American Society of Mechanical Engineers Standard A112.19.14-2006 "Six-Liter Water Closets Equipped with a Dual Flushing Device."(6) Except as provided for in §290.256 of this title, for a toilet sold, offered for sale, or distributed in this state on or after January 1, 2014 must be:(A) A dual flush toilet that meets the following standards:(i) The average flush volume of two reduced flushes and one full flush may not exceed 1.28 gallons; and(ii) The toilet must meet the performance, testing, and labeling requirements prescribed by the following standards, as applicable:(I) American Society of Mechanical Engineers Standard A112.19.2-2008 and Canadian Standards Association Standard B45.1-2008 "Vitreous China Plumbing Fixtures and Hydraulic Requirements for Water Closets and Urinals;" and(II) American Society of Mechanical Engineers Standard A112.19.4-2006 "Six-Liter Water Closets Equipped with a Dual Flushing Device;" or(B) A single flush toilet that meets the following standards:(i) The average flush volume may not exceed 1.28 gallons; and(ii) The toilet must meet the performance, testing, and labeling requirements prescribed by American Society of Mechanical Engineers Standard A112.19.2-2008 and Canadian Standards Association Standard B45.1-2008 "Vitreous China Plumbing Fixtures and Hydraulic Requirements for Water Closets and Urinals."(7) All drinking water fountains shall be operated by a self-closing valve.(8) The maximum flow rate from a commercial pre-rinse spray valve shall not exceed 1.6 gallons of water per minute when tested with the method specified in ASTM International Standard F2324-03.(c) Nonwater-supplied urinal performance standards are the following:(1) A person may not sell, offer for sale, or distribute in this state a nonwater-supplied urinal in this state unless the nonwater-supplied urinal:(A) meets the performance, testing, and labeling requirements prescribed by the following standards, as applicable:(i) American Society of Mechanical Engineers Standard A112.19.19-2006 "Vitreous China Nonwater Urinals;" or(ii) International Association of Plumbing and Mechanical Officials Standard ANSI Z124.9-2004 "Plastic Urinal Fixtures;"(B) provides a trap seal that complies with the building code of the local government in which the urinal is installed; and(C) permits the uninhibited flow of waste through the urinal to the sanitary drainage system.(2) The manufacturer or importer must submit to the executive director certified test results from a laboratory accredited by the American National Standards Institute verifying that the nonwater-supplied urinal conforms to the requirements described by paragraph (1) of this subsection.(3) A person who installs a nonwater-supplied urinal shall install water distribution and fixture supply piping sized to accommodate a water supply urinal to an in-wall point immediately adjacent to the nonwater-supplied urinal location so that the nonwater-supplied urinal can be replaced with a water-supplied urinal if desired by the owner or required by a code enforcement officer.(4) A person who owns a nonwater-supplied urinal shall clean and maintain the nonwater-supplied urinal in accordance with the manufacturer's instructions.</content><note type="source"><p>Source Note: The provisions of this §290.252 adopted to be effective March 17, 1992, 17 TexReg 1646; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective January 5, 2006, 30 TexReg 8956; amended to be effective April 25, 2010, 35 TexReg 3066.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scG/s290.253"><num value="290.253">§290.253</num><heading>Plumbing Fixture List</heading><content>The commission shall make and maintain a current list of plumbing fixtures that are certified to the commission by the manufacturer to meet the water saving performance standards established by §290.252(b) of this title (relating to Design Standards). To have a plumbing fixture included on the commission's current list, a manufacturer must:(1) furnish identification and the performance specifications of the plumbing fixture; and(2) furnish certified test results from a laboratory accredited by the American National Standards Institute verifying that the plumbing complies with the flow requirements established in §290.252(b) of this title.</content><note type="source"><p>Source Note: The provisions of this §290.253 adopted to be effective March 17, 1992, 17 TexReg 1646; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective January 7, 1994, 18 TexReg 9935; amended to be effective January 5, 2006, 30 TexReg 8956; amended to be effective April 25, 2010, 35 TexReg 3066.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scG/s290.254"><num value="290.254">§290.254</num><heading>Removal from List</heading><content>(a) A plumbing fixture listed in §290.253 of this title (relating to Plumbing Fixture List) shall be removed from the list if:(1) the commission finds the manufacturer's or importer's certification to be inaccurately certified;(2) the agency finds that the fixture does not meet the standards set forth in §290.252(b) of this title (relating to Design Standards).(b) Prior to removal of the plumbing fixture from the list, a manufacturer or importer shall have the right to seek a hearing with the commission. A hearing held pursuant to this section shall be held in accordance with the Administrative Procedure Act (APA) and the commission's formal hearing procedures.</content><note type="source"><p>Source Note: The provisions of this §290.254 adopted to be effective March 17, 1992, 17 TexReg 1646; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective January 7, 1994, 18 TexReg 9935; amended to be effective April 25, 2010, 35 TexReg 3066.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scG/s290.256"><num value="290.256">§290.256</num><heading>Exemptions</heading><content>(a) These sections do not apply to a plumbing fixture:(1) that has been ordered by or is in the inventory of a building contractor or a wholesaler or retailer in Texas on or before January 1, 1992;(2) such as a safety shower or aspirator faucet, that, because of the fixture's specialized function, cannot meet the standards established by these sections (example: fixtures in handicapped modified showers, etc.);(3) originally installed before January 1, 1992, that is removed and reinstalled in the same building on or after that date;(4) imported only for use at the importer's domicile;(5) that is a nonwater supplied urinal;(6) that has been certified by the United States Environmental Protection Agency under the WaterSense program; or(7) if it has been determined by the governing body of a municipality or county that to flush a public sewer system located in the municipality or county in a manner consistent with public health, a greater quantity of water is required because of the configuration of the drainage system of buildings located in the municipality or county or the public sewer system.(b) The water saving performance standards for a urinal and the associated flush valve, if any, sold, offered for sale, or distributed in this state on or after January 1, 2014, are the standards prescribed by §290.252(b)(3) of this title (relating to Design Standards) if the urinal was designed for heavy-duty commercial applications.(c) The water saving performance standards for a toilet sold, offered for sale, or distributed in this state on or after January 1, 2014, are the standards prescribed by §290.252(b)(5) of this title if the toilet is a water closet that has a design not typically found in a residential application or that is designed for a specialized application, including a water closet that:(1) is mounted on the wall and discharges to the drainage system on the floor;(2) is located in a correctional facility, as defined by Texas Penal Code, §1.07;(3) is used in a bariatric application;(4) is used by children at a daycare facility; or(5) consists of a non-tank type commercial bowl connected to the plumbing system through a pressurized flushing device.(d) These sections do not apply to a commercial pre-rinse spray valve that:(1) as of January 1, 2006:(A) is in the inventory of a commercial pre-rinse spray valve retailer, distributor, lessor, or importer; or(B) has been ordered by a commercial pre-rinse spray valve retailer, distributor, lessor, or importer and is delivered before February 1, 2006; and(2) is sold before September 1, 2006.</content><note type="source"><p>Source Note: The provisions of this §290.256 adopted to be effective March 17, 1992, 17 TexReg 1646; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective January 7, 1994, 18 TexReg 9935; amended to be effective January 5, 2006, 30 TexReg 8956; amended to be effective April 25, 2010, 35 TexReg 3066.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scG/s290.260"><num value="290.260">§290.260</num><heading>Labeling</heading><content>(a) Prohibitions. A person may not sell, offer for sale, distribute, or import into this state a new commercial or residential clothes washing machine, dish washing machine, or lawn sprinkler unless the clothes washing machine, dish washing machine, or lawn sprinkler is marked or labeled in accordance with these sections.(1) Each clothes washing machine and dish washing machine shall have an attached label that shows the amount of water used per cycle.(2) Each lawn sprinkler shall be marked with the water usage expressed in gallons per minute (gpm) by either a permanent mark on each sprinkler, or a label or tag attached to each sprinkler.(b) Exemptions. This section does not apply to those clothes washing machines and dish washing machines that are subject to and are in compliance with the labeling requirements of the National Appliance Energy Conservation Act of 1987, Public Law 100-12 (42 United States Code, §6294) and as amended.</content><note type="source"><p>Source Note: The provisions of this §290.260 adopted to be effective March 17, 1992, 17 TexReg 1646; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective January 7, 1994, 18 TexReg 9935; amended to be effective April 25, 2010, 35 TexReg 3066.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scG/s290.261"><num value="290.261">§290.261</num><heading>Reporting on Clothes Washing Machines</heading><content>(a) A manufacturer who imports one or more clothes washing machines into the state, a trade association representing the manufacturer, or other entities must report the following information to the executive director not later than January 31st of each year:(1) the number of clothes washing machines imported into the state during the preceding calendar year with a water consumption factor of more than 11;(2) the number of clothes washing machines imported into the state during the preceding calendar year with a water consumption factor of more than 9.5, but not more than 11;(3) the number of clothes washing machines imported into the state during the preceding calendar year with a water consumption factor of 9.5 or less; and(4) the average water consumption factor of all clothes washing machines imported into the state during the preceding calendar year.(b) A manufacturer has complied with this section if the manufacturer reports the required information to an industry trade association or other entity who reports the required information to the executive director by January 31st of each year.(c) This section does not apply to a clothes washing machine with a capacity of more than 3.5 cubic feet or less than 1.6 cubic feet.(d) The first report required by this section shall be submitted to the executive director by January 31, 2003.</content><note type="source"><p>Source Note: The provisions of this §290.261 adopted to be effective June 30, 2002, 27 TexReg 5797.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scG/s290.265"><num value="290.265">§290.265</num><heading>Administrative Penalty</heading><content>(a) A person who violates these sections shall be assessed an administrative penalty in an amount described in paragraphs (1)-(3) of this subsection but not to exceed $5,000 for each violation and for each day of a continuing violation.(1) The penalty for sale, offering for sale, distributing, or importing a plumbing fixture which does not meet the requirements of these sections shall be a minimum of $25 and a maximum of $500 for each unit sold, offered for sale, distributed, or imported. The amount of the assessed penalty will be based upon subsequent cooperation by the violators with the commission.(2) The penalty for sale, offering for sale, distributing, or importing a plumbing fixture not labeled in accordance with these sections shall be a minimum of $25 and a maximum $500 for each unit sold, offered for sale, distributed, or imported. The amount of assessed penalty will be based upon subsequent cooperation by the violators with the commission.(3) The penalty for willful and continuing violation of paragraphs (1) and/or (2) of this subsection shall be above $5,000 for each violation.(b) A person against whom an administrative penalty is assessed is entitled to a notice and hearing on the assessment of the penalty in accordance with the Administrative Procedure Act, and the commission's formal hearing procedures as described in Chapter 337 of this title (relating to Enforcement).(c) Not later than the 30th day after the date on which the commission's order assessing the administrative penalty is final, the person assessed the penalty shall pay the full amount of the penalty or file a petition for judicial review. A person who fails to comply with this subsection waives judicial review.</content><note type="source"><p>Source Note: The provisions of this §290.265 adopted to be effective March 17, 1992, 17 TexReg 1646; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective January 7, 1994, 18 TexReg 9935.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scG/s290.266"><num value="290.266">§290.266</num><heading>Civil Penalty; Injunction</heading><content>(a) A person who violates these sections is subject to civil penalty not to exceed $5,000 for each violation and for each day of a continuing violation.(b) If it appears that a person has violated, is violating, or is threatening to violate these rules, the commission, a county, or a municipality may bring a civil action in a district court in Travis County, the county in which the defendant resides, or the county where the violation occurred, is occurring, or is threatened for:(1) injunctive relief to restrain the person from continuing the violation or threat of violation;(2) assessment of a civil penalty for a violation; or(3) both injunctive relief and a civil penalty.(c) The commission is an indispensable party in a suit brought by a county or municipality under this section.</content><note type="source"><p>Source Note: The provisions of this §290.266 adopted to be effective March 17, 1992, 17 TexReg 1646; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective January 7, 1994, 18 TexReg 9935.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scG/s290.267"><num value="290.267">§290.267</num><heading>Phase-In of Water Saving Performance Standards</heading><content>(a) Notwithstanding §290.252(b)(3) and (5) of this title (relating to Design Standards), at least the following percentage of the models of urinals and of the models of toilets offered for sale by a manufacturer in this state must meet the requirements of §290.252(b)(4) and (6) of this title, respectively:(1) 50% of the models of urinals and of the models of toilets offered for sale on January 1, 2010;(2) 67% of the models of urinals and of the models of toilets offered for sale on January 1, 2011;(3) 75% of the models of urinals and of the models of toilets offered for sale on January 1, 2012; and(4) 85% of the models of urinals and of the models of toilets offered for sale on January 1, 2013.(b) Not later than January 31 of each year, a manufacturer that offers urinals or toilets for sale in this state shall notify the executive director in writing of the percentage of models of urinals and of the models of toilets offered for sale by the manufacturer in this state that meet the requirements of §290.252(b)(4) and (6) of this title, respectively.(c) This section expires September 1, 2013.</content><note type="source"><p>Source Note: The provisions of this §290.267 adopted to be effective April 25, 2010, 35 TexReg 3066.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c290/scH"><num value="H">SUBCHAPTER H</num><heading>CONSUMER CONFIDENCE REPORTS</heading><section identifier="/us/state/tx/tac/t30/p1/c290/scH/s290.271"><num value="290.271">§290.271</num><heading>Purpose and Applicability</heading><content>(a) The purpose of the sections in this subchapter is to establish the minimum requirements for the content of annual reports that community water systems must deliver to their customers. These reports must contain information on the quality of the water delivered by the systems and characterize any risk from exposure to contaminants detected in the drinking water in an accurate and understandable manner. This subchapter applies only to community water systems.(b) Each community water system must provide to its customers an annual report that contains the information specified in this subchapter.(c) For the purposes of this section, the term "detected" shall mean the detection of a chemical at any level equal to or greater than the minimum detection level.</content><note type="source"><p>Source Note: The provisions of this §290.271 adopted to be effective August 21, 2000, 25 TexReg 8730; amended to be effective May 15, 2011, 36 TexReg 2860.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scH/s290.272"><num value="290.272">§290.272</num><heading>Content of the Report</heading><content>(a) Information on the source of the water delivered must be included in the report.(1) Each report must identify the source(s) of the water delivered by the community water system by providing information on the type of the water (such as surface water or groundwater) and any commonly used name and location of the body(ies) of water.(2) If a source water assessment has been completed, the report must notify consumers of the availability of this information and the means to obtain it. In the reports, systems should highlight significant sources of contamination in the source water area if they have readily available information.(3) If a system has received a source water assessment from the executive director, the report must include a brief summary of the system's susceptibility to potential sources of contamination using language provided by the executive director or written by a water system official and approved by the executive director.(b) The following explanations must be included in the annual report.(1) Each report must contain the following definitions.(A) Level 1 assessment--A Level 1 assessment is a study of the water system to identify potential problems and determine (if possible) why total coliform bacteria were found.(B) Level 2 assessment--A Level 2 assessment is a very detailed study of the water system to identify potential problems and determine (if possible) why an Escherichia coli (E. coli) maximum contaminant level (MCL) violation has occurred and/or why total coliform bacteria were found on multiple occasions.(C) Maximum contaminant level goal (MCLG)--The level of a contaminant in drinking water below which there is no known or expected risk to health. MCLGs allow for a margin of safety.(D) Maximum contaminant level (MCL)--The highest level of a contaminant that is allowed in drinking water. MCLs are set as close to maximum contaminant level goals as feasible using the best available treatment technology.(E) Maximum residual disinfectant level goal (MRDLG)--The level of a drinking water disinfectant below which there is no known or expected risk to health. MRDLGs do not reflect the benefits of the use of disinfectants to control microbial contaminants.(F) Maximum residual disinfectant level (MRDL)--The highest level of a disinfectant allowed in drinking water. There is convincing evidence that addition of a disinfectant is necessary for control of microbial contaminants.(2) The following terms and their descriptions must be included when they appear in the report:(A) MFL--million fibers per liter (a measure of asbestos); (B) mrem/year--millirems per year (a measure of radiation absorbed by the body);(C) NTU--nephelometric turbidity units (a measure of turbidity);(D) pCi/L--picocuries per liter (a measure of radioactivity); (E) ppb--parts per billion, or micrograms per liter (µg/L);(F) ppm--parts per million, or milligrams per liter (mg/L);(G) ppq--parts per quadrillion, or picograms per liter (pg/L); and(H) ppt--parts per trillion, or nanograms per liter (ng/L).(3) A report for a community water system operating under a variance or an exemption of the Safe Drinking Water Act must include a description of the variance or the exemption granted under §290.102(b) of this title (relating to General Applicability).(4) A report that contains data on a contaminant for which the United States Environmental Protection Agency (EPA) has set a treatment technique (TT) or an action level (AL) must include, depending on the contents of the report, the following definitions.(A) AL--The concentration of a contaminant which, if exceeded, triggers treatment or other requirements that a water system must follow.(B) TT--A required process intended to reduce the level of a contaminant in drinking water.(c) Information on detected contaminants.(1) This subsection specifies the requirements for information to be included in each report for detected contaminants subject to mandatory monitoring, excluding Cryptosporidium. Mandatory monitoring is required for:(A) regulated contaminants subject to an MCL, MRDL, AL, or TT; and(B) unregulated contaminants for which monitoring is required by 40 Code of Federal Regulations (CFR) §141.40, and found in §290.275(4) of this title (relating to Appendices A - D).(2) The data relating to these detected contaminants must be displayed in one table or in several adjacent tables. Any additional monitoring results that a community water system chooses to include in its reports must be displayed separately.(3) The data must be derived from data collected to comply with EPA and the commission monitoring and analytical requirements during the previous calendar year, except when a system is allowed to monitor for regulated contaminants less often than once per year. In that case, the table(s) must include the date and results of the most recent sampling, and the report must include a brief statement indicating that the data presented in the report is from the most recent testing done in accordance with the regulations. The report does not need to include data that is older than five years.(4) For detected regulated contaminants listed under §290.275 of this title, the table(s) must contain:(A) the MCLs for those contaminants expressed as a number equal to or greater than 1.0 (as provided under §290.275 of this title);(B) the MCLGs for those contaminants expressed in the same units as the MCLs (as provided for under §290.275 of this title);(C) if there is no MCL for a detected contaminant, the TT or specific AL applicable to that contaminant; and(D) for contaminants subject to an MCL, except turbidity, total coliform, fecal coliform, and E. coli the highest contaminant level used to determine compliance with National Primary Drinking Water Regulations (NPDWR) and the range of detected levels.(i) For contaminants subject to MCLs, except turbidity, total coliform, fecal coliform, and E. coli , when sampling takes place once per year or less often, the table(s) must contain the highest detected level at any sampling point and the range of detected levels expressed in the same units as the MCL.(ii) When sampling takes place more than once per year at each sampling point, the table(s) must contain the highest average of any of the sampling points and the range of all sampling points expressed in the same units as the MCL.(iii) In accordance with date requirements included in the table under §290.115(a) of this title (relating to Stage 2 Disinfection Byproducts (TTHM and HAA5)), entitled "Date to Start Stage 2 Compliance," for the MCLs for total trihalomethanes (TTHM) and haloacetic acids (HAA5), systems must include the highest locational running annual average for TTHM and HAA5 and the range of individual sample results for all monitoring locations expressed in the same units as the MCL. If more than one location exceeds the TTHM or HAA5 MCL, the system must include the locational running annual averages for all sampling points that exceed the MCL.(iv) When compliance with any MCL is determined on a system-wide basis by calculating a running annual average of all samples at all sampling points, the table(s) must include the average and range of detections expressed in the same units as the MCL.(v) When the executive director allows the rounding of results to determine compliance with the MCL, rounding should be done after multiplying the results by the factor listed under §290.275 of this title.(E) When turbidity is reported under §290.111 of this title (relating to Surface Water Treatment), the table(s) must contain the highest single measurement and the lowest monthly percentage of samples meeting the turbidity limits specified in that section for the filtration technology being used. The report should include an explanation of the reasons for measuring turbidity.(F) When lead and copper are reported, the table(s) must contain the 90th percentile value of the most recent round of sampling and the number of sampling sites exceeding the AL.(G) When E. coli is reported, the table(s) shall contain the total number of E. coli -positive samples.(H) The table(s) must contain information on the likely source(s) of detected contaminants based on the operator's knowledge. Specific information regarding contaminants may be available in sanitary surveys or source water assessments and should be used when available. If the operator lacks specific information on the likely source, the report must include one or more typical sources most applicable to the system for any particular contaminant listed under §290.275 of this title.(i) If a community water system distributes water to its customers from multiple hydraulically independent distribution systems that are fed by different raw water sources, the table(s) must contain a separate column for each service area, and the report must identify each separate distribution system. Systems may produce separate reports tailored to include data for each service area.(ii) The table(s) must clearly identify any data indicating violations of MCLs, MRDLs, or TTs. The report must contain a clear and readily understandable explanation of the violation. The explanation must include the length of the violation, the potential adverse health effects, and the actions taken by the system to address the violation. To describe the potential health effects, the system must use the relevant language contained under §290.275 of this title.(5) For detected unregulated contaminants found under §290.275 of this title, for which monitoring is required (except Cryptosporidium ), the table(s) must contain the average and range of concentrations at which the contaminant was detected. The report must include the following explanation: "Unregulated contaminants are those for which EPA has not established drinking water standards. The purpose of unregulated contaminant monitoring is to assist EPA in determining the occurrence of unregulated contaminants in drinking water and whether future regulation is warranted."(d) Information on Cryptosporidium, radon, and other contaminants.(1) If the system has performed any monitoring for Cryptosporidium, the report must include a summary of the results of any detections and an explanation of the significance of the results.(2) If the system has performed any monitoring for radon, which indicates that radon may be present in the finished water, the report must include the results of the monitoring and an explanation of the significance of the results.(3) If the system has performed additional monitoring, which indicates the presence of other contaminants in the finished water, the executive director strongly encourages systems to report any results which may indicate a health concern. To determine if the results may indicate a health concern, the executive director recommends that systems find out if the EPA has proposed a standard in the NPDWR or issued a health advisory for any particular contaminant. This information may be obtained by calling the Safe Drinking Water Hotline at (800) 426-4791. The executive director considers detections that are above a proposed MCL or health advisory level to indicate possible health concerns. For such contaminants, the executive director recommends that the report include the results of the monitoring and an explanation of the significance of the results. The explanation should note the existence of a health advisory or a proposed regulation.(4) Community water systems that exceed the secondary constituent level for fluoride as described in §290.118 of this title (relating to Secondary Constituent Levels) but are below the maximum contaminant level listed in §290.106 of this title (relating to Inorganic Contaminants) shall notify the public using the mandatory language as described in 40 CFR §141.208(c).(e) Compliance with NPDWR. In addition to the requirements in subsection (c)(4)(H)(ii) of this section, the report must note any violation that occurred during the year covered by the report of a requirement listed in paragraphs (1) - (8) of this subsection.(1) The report must include a clear and readily understandable explanation of each violation of monitoring and reporting of compliance data and explain any adverse health effects and steps the system has taken to correct the violation.(2) The report must include a clear and readily understandable explanation of each violation of filtration and disinfection prescribed by Subchapter F of this chapter (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Systems) and explain any adverse health effects and steps the system has taken to correct the violation. This applies both to systems that have failed to install adequate filtration, disinfection equipment, or processes, and to systems that have had a failure of such equipment or processes, each of which constitutes a violation. In either case, the report must include the following language as part of the explanation of potential adverse health effects: "Inadequately treated water may contain disease-causing organisms. These organisms include bacteria, viruses, and parasites that can cause symptoms such as nausea, cramps, diarrhea, and associated headaches."(3) The report must include a clear and readily understandable explanation of each violation of the lead and copper control requirements prescribed by §290.117 of this title (relating to Regulation of Lead and Copper). For systems that fail to take one or more actions prescribed by §290.117(g), (h), and (i) of this title, the report must include the applicable health effects language of §290.275(3) of this title for lead, copper, or both and the steps the system has taken to correct the violation.(4) The report must include a clear and readily understandable explanation of each violation of TTs for Acrylamide and Epichlorohydrin prescribed by §290.107 of this title (relating to Organic Contaminants). If a system violates these requirements, the report must include the relevant health effects language from §290.275 of this title and the steps the system has taken to correct the violation.(5) The report must include a clear and readily understandable explanation of each violation of recordkeeping of compliance data and explain any adverse health effects and steps the system has taken to correct the violation.(6) The report must include a clear and readily understandable explanation of each violation of special monitoring requirements for unregulated contaminants and special monitoring for sodium as prescribed by 40 CFR §141.40 and §141.41 and explain any adverse health effects and steps the system has taken to correct the violation.(7) For systems required to conduct initial distribution sampling evaluation (IDSE) sampling in accordance with §290.115(c)(5) of this title, the system is required to include individual sample results for the IDSE when determining the range of TTHM and HAA5 results to be reported in the annual Consumer Confidence Report for the calendar year that the IDSE samples were taken.(8) The report must include a clear and readily understandable explanation of each violation of the terms of a variance, exemption, administrative order, or judicial order and explain any adverse health effects and steps the system has taken to correct the violation. (f) Variances and exemptions. If a system is operating under the terms of a variance or exemption issued under §290.102(b) of this title, the report must contain:(1) an explanation of the variance or exemption;(2) the date on which the variance or exemption was issued and on which it expires;(3) a brief status report on the steps the system is taking, such as installing treatment processes or finding alternative sources of water, to comply with the terms and schedules of the variance or exemption; and(4) a notice of any opportunity for public input as the review or renewal of the variance or exemption.(g) Additional information.(1) The report must contain a brief explanation regarding contaminants that may reasonably be expected to be found in drinking water (including bottled water). This explanation may include the language contained within subparagraphs (A) - (C) of this paragraph, or systems may include their own comparable language. The report must include the language of subparagraphs (D) and (E) of this paragraph.(A) The sources of drinking water (both tap water and bottled water) include rivers, lakes, streams, ponds, reservoirs, springs, and wells. As water travels over the surface of the land or through the ground, it dissolves naturally occurring minerals and, in some cases, radioactive material, and can pick up substances resulting from the presence of animals or from human activity.(B) Contaminants that may be present in source water include:(i) microbial contaminants, such as viruses and bacteria, which may come from sewage treatment plants, septic systems, agricultural livestock operations, and wildlife;(ii) inorganic contaminants, such as salts and metals, which can be naturally occurring or result from urban storm water runoff, industrial or domestic wastewater discharges, oil and gas production, mining, or farming;(iii) pesticides and herbicides, which might have a variety of sources such as agriculture, urban storm water runoff, and residential uses;(iv) organic chemical contaminants, including synthetic and volatile organic chemicals, which are byproducts of industrial processes and petroleum production, and can also come from gas stations, urban storm water runoff, and septic systems; and(v) radioactive contaminants, which can be naturally occurring or the result of oil and gas production and mining activities.(C) In order to ensure that tap water is safe to drink, the EPA prescribes regulations that limit the amount of certain contaminants in water provided by public water systems. Food and Drug Administration regulations establish limits for contaminants in bottled water that must provide the same protection for public health.(D) Contaminants may be found in drinking water that may cause taste, color, or odor problems. These types of problems are not necessarily causes for health concerns. For more information on taste, odor, or color of drinking water, please contact the system's business office.(E) Drinking water, including bottled water, may reasonably be expected to contain at least small amounts of some contaminants. The presence of contaminants does not necessarily indicate that water poses a health risk. More information about contaminants and potential health effects can be obtained by calling the EPA's Safe Drinking Water Hotline at (800) 426-4791.(2) The report must include the telephone number of the owner, operator, or designee of the community water system as an additional source of information concerning the report.(3) Each English language report must include the following statement in a prominent place on the first page: "Este reporte incluye informacion importante sobre el agua para tomar. Para asistencia en español, favor de llamar al telefono (XXX) XXX-XXXX." In addition to this statement in Spanish, for communities with a large proportion of limited English proficiency residents, as determined by the executive director, the report must contain information in the appropriate language(s) regarding the importance of the report or contain a telephone number or address where such residents may contact the system to obtain a translated copy of the report or assistance in the appropriate language.(4) The report must include information about opportunities for public participation in decisions that may affect the quality of the water (e.g., time and place of regularly scheduled board meetings). Investor-owned utilities are encouraged to conduct public meetings, but must include a phone number for public input.(5) The systems may include such additional information for public education consistent with, and not detracting from, the purposes of the report.(6) Systems that use an interconnect or emergency source to augment the drinking water supply during the calendar year of the report must provide the source of the water, the length of time used, an explanation of why it was used, and whom to call for the water quality information.(7) Beginning December 1, 2009, any groundwater system that receives notice from a laboratory of a fecal indicator positive groundwater source sample that is not invalidated by the executive director under §290.109(e) of this title (relating to Microbial Contaminants) must inform its customers of any fecal indicator positive groundwater source sample in the next report. The system must continue to inform the public annually until the executive director determines that the fecal contamination in the groundwater source is addressed under §290.116(a) of this title (relating to Groundwater Corrective Actions and Treatment Techniques). Each report must include the following elements:(A) the source of the fecal contamination (if the source is known) and the dates of the fecal indicator positive groundwater source samples;(B) actions taken to address the fecal contamination in the groundwater source as directed by §290.116 of this title and the date of such action;(C) for each fecal contamination in the groundwater source that has not been addressed under §290.116 of this title, the plan approved by the executive director and schedule for correction, including interim measures, progress to date, and any interim measures completed; and(D) for a fecal indicator positive groundwater source sample that is not invalidated by the executive director under §290.109(e) of this title, the potential health effects using the health effects language of §290.275(3) of this title.(8) Beginning December 1, 2009, any groundwater system that receives notice from the executive director of a significant deficiency must inform its customers of any significant deficiency that is uncorrected at the time of the next report. The system must continue to inform the public annually until the executive director determines that particular significant deficiency is corrected under §290.116 of this title. Each report must include the following elements:(A) the nature of the particular significant deficiency and the date the significant deficiency was identified by the executive director;(B) for each significant deficiency, the plan approved by the executive director and schedule for correction, including interim measures, progress to date, and any interim measures completed; and(C) if corrected before the next report, the nature of the significant deficiency, how the deficiency was corrected, and the date of the corrections.(9) Any public water system required to comply with the Level 1 or Level 2 assessment requirements under §290.109 and §290.116 of this title that is not due to an E. coli MCL violation shall include in the report the information in subparagraph (A) of this paragraph. In addition to the elements in subparagraph (A) of this paragraph, the public water system shall include the elements in subparagraph (B) of this paragraph when it has a Level 1 treatment technique trigger as specified under §290.109(c)(1) of this title and shall include the elements in subparagraph (C) of this paragraph in the report when it has a Level 2 treatment technique trigger as specified under §290.109(c)(2)(B) of this title. Furthermore, any public water system that failed to complete all the required assessments shall also include the statement in subparagraph (D)(i) of this paragraph. Any public water system that failed to correct all identified sanitary defects shall also include the statement in subparagraph (D)(ii) of this paragraph.(A) Coliforms are bacteria that are naturally present in the environment and are used as an indicator that other, potentially harmful, waterborne pathogens may be present or that a potential pathway exists through which contamination may enter the drinking water distribution system. We found coliforms indicating the need to look for potential problems in water treatment or distribution. When this occurs, we are required to conduct assessment(s) to identify problems and to correct any problems that were found during these assessments.(B) During the past year we were required to conduct {INSERT NUMBER OF LEVEL 1 ASSESSMENTS} Level 1 assessment(s). {INSERT NUMBER OF LEVEL 1 ASSESSMENTS} Level 1 assessment(s) were completed. In addition, we were required to take {INSERT NUMBER OF CORRECTIVE ACTIONS} corrective actions and we completed {INSERT NUMBER OF CORRECTIVE ACTIONS} of these actions.(C) During the past year {INSERT NUMBER OF LEVEL 2 ASSESSMENTS} Level 2 assessments were required to be completed for our water system. {INSERT NUMBER OF LEVEL 2 ASSESSMENTS} Level 2 assessments were completed. In addition, we were required to take {INSERT NUMBER OF CORRECTIVE ACTIONS} corrective actions and we completed {INSERT NUMBER OF CORRECTIVE ACTIONS} of these actions.(D) Any public water system that failed to complete all the required assessments or correct all identified sanitary defects, is in violation of the treatment technique requirement and shall also include one or both of the following statements as appropriate:(i) During the past year we failed to conduct all of the required assessment(s).(ii) During the past year we failed to correct all identified defects that were found during the assessment.(10) Any public water system required to comply with the Level 2 assessment requirements under §290.109 and §290.116 of this title that is due to an E. coli MCL violation shall include in the report the information in subparagraph (A) of this paragraph. In addition to the elements in subparagraph (A) of this paragraph, the public water system shall include the elements in subparagraph (B) of this paragraph when it has a Level 2 treatment technique trigger as specified under §290.109(c)(2) of this title and shall include the following elements in subparagraph (C) in the report when it has a Level 2 treatment technique trigger as specified under §290.109(c)(2)(A). Furthermore, any public water system that failed to complete all the required assessments shall also include the statement in subparagraph (C)(i) of this paragraph. Any public water system that failed to correct all identified sanitary defects shall also include the statement in subparagraph (C)(ii) of this paragraph. (A) E. coli are bacteria whose presence indicates that the water may be contaminated with human or animal wastes. Human pathogens in these wastes can cause short-term effects, such as diarrhea, cramps, nausea, headaches, or other symptoms. They may pose a greater health risk for infants, young children, the elderly, and people with severely compromised immune systems. We found E. coli bacteria, indicating the need to look for potential problems in water treatment or distribution. When this occurs, we are required to conduct assessment(s) to identify problems and to correct any problems that were found during these assessments.(B) We were required to complete a Level 2 assessment because we found E. coli in our water system. In addition, we were required to take {INSERT NUMBER OF CORRECTIVE ACTIONS} corrective actions and we completed {INSERT NUMBER OF CORRECTIVE ACTIONS} of these actions.(C) Any public water system that has failed to complete the required assessment or correct all identified sanitary defects, is in violation of the treatment technique requirement and shall also include one or both of the following statements, as appropriate:(i) We failed to conduct the required assessment.(ii) We failed to correct all sanitary defects that were identified during the assessment that we conducted.(11) If a public water system detects E. coli and has violated the E. coli MCL, in addition to completing the table as required in subsection (c)(4) of this section, the system shall include one or more of the following statements to describe any noncompliance, as applicable:(A) We had an E. coli -positive repeat sample following a total coliform-positive routine sample.(B) We had a total coliform-positive repeat sample following an E. coli -positive routine sample.(C) We failed to take all required repeat samples following an E. coli -positive routine sample.(D) We failed to test for E. coli when any repeat sample tests positive for total coliform.(12) Every report must include the following lead-specific information - a short informational statement about lead in drinking water and its effect on children.(A) The statement must include the information set forth in this example statement. "If present, elevated levels of lead can cause serious health problems, especially for pregnant women and young children. Lead in drinking water is primarily from materials and components associated with service lines and home plumbing. NAME OF UTILITY is responsible for providing high quality drinking water, but cannot control the variety of materials used in plumbing components. When your water has been sitting for several hours, you can minimize the potential for lead exposure by flushing your tap for 30 seconds to two minutes before using water for drinking or cooking. If you are concerned about lead in your water, you may wish to have your water tested. Information on lead in drinking water, testing methods, and steps you can take to minimize exposure is available from the Safe Drinking Water Hotline or at http://www.epa.gov/safewater/lead. "(B) A public water system may write its own educational statement, but only in consultation with the executive director.(h) If a public water system detects E. coli and has not violated the E. coli MCL, in addition to completing the table as required in subsection (c)(4) of this section, the system may include a statement that explains that although they have detected E. coli, they are not in violation of the E. coli MCL.(i) Customer notification of water loss by a retail public utility. A retail public utility required to file a water loss audit with the Texas Water Development Board under the provisions of Texas Water Code, §16.0121, shall notify its customers of its water loss reported in the water loss audit by including the water loss information on or with the next report following the filing of the water loss audit, unless the retail public utility elects to notify its customers of its water loss reported in the water loss audit by including the water loss information on or with the next bill sent to its customers following the filing of the water loss audit in accordance with §291.87 of this title (relating to Billing).</content><note type="source"><p>Source Note: The provisions of this §290.272 adopted to be effective August 21, 2000, 25 TexReg 8730; amended to be effective January 6, 2005, 29 TexReg 12212; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective May 15, 2011, 36 TexReg 2860; amended to be effective November 13, 2014, 39 TexReg 8720; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scH/s290.273"><num value="290.273">§290.273</num><heading>Required Additional Health Information</heading><content>(a) All reports must prominently display the following language on the first page of the consumer confidence report or in bold print on the second page of the report: "You may be more vulnerable than the general population to certain microbial contaminants, such as Cryptosporidium, in drinking water. Infants, some elderly, or immunocompromised persons such as those undergoing chemotherapy for cancer; those who have undergone organ transplants; those who are undergoing treatment with steroids; and people with HIV/AIDS or other immune system disorders can be particularly at risk from infections. You should seek advice about drinking water from your physician or health care provider. Additional guidelines on appropriate means to lessen the risk of infection by Cryptosporidium are available from the Safe Drinking Water Hotline at (800) 426-4791." (b) A system that detects arsenic levels above 5 micrograms per liter but below the maximum contaminant level (MCL) shall include in its report a short informational statement about arsenic using the following language: "While your drinking water meets EPA's standard for arsenic, it does contain low levels of arsenic. EPA's standard balances the current understanding of arsenic's possible health effects against the costs of removing arsenic from drinking water. EPA continues to research the health effects of low levels of arsenic, which is a mineral known to cause cancer in humans at high concentrations and is linked to other health effects such as skin damage and circulatory problems." (c) A system that detects nitrate at levels above 5 mg/L, but below the MCL shall include a short informational statement about the impacts of nitrate on children using the following language: "Nitrate in drinking water at levels above 10 ppm is a health risk for infants of less than six months of age. High nitrate levels in drinking water can cause blue baby syndrome. Nitrate levels may rise quickly for short periods of time because of rainfall or agricultural activity. If you are caring for an infant, you should ask advice from your health care provider." (d) Systems collecting 20 or more samples that detect lead above the action level in greater than 5.0% of homes sampled shall include a short informational statement about the special impact of lead on children using the following language: "Infants and young children are typically more vulnerable to lead in drinking water than the general population. It is possible that lead levels at your home may be higher than at the homes in the community as a result of materials used in your home's plumbing. If you are concerned about elevated lead levels in your home's water, you may wish to have your water tested and flush your tap for 30 seconds to two minutes before using tap water. Additional information is available from the Safe Drinking Water Hotline at (800) 426-4791." (e) Any water system subject to any or all of subsections (b) - (d) of this section may seek approval from the executive director to write its own alternative educational informational statement. (f) Public water systems that detect total trihalomethanes above 0.080 mg/L as a running annual average shall include health effects language provided in §290.275(3) of this title (relating to Appendices A - D), Appendix C, paragraph (81).</content><note type="source"><p>Source Note: The provisions of this §290.273 adopted to be effective August 21, 2000, 25 TexReg 8730; amended to be effective January 6, 2005, 29 TexReg 12212; amended to be effective January 9, 2008, 33 TexReg 198.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scH/s290.274"><num value="290.274">§290.274</num><heading>Report Delivery and Recordkeeping</heading><content>(a) Except as provided in subsection (i) of this section, each community water system shall mail or otherwise directly deliver one copy of the report to each bill paying customer by July 1 of each year. Each new community water system shall deliver its first report by July 1 of the year after its first full calendar year in operation and annually thereafter. In addition, each community water system shall provide a copy of the report to each new customer upon request.(b) In addition to delivering a report to each customer, the system shall make a good-faith effort to reach consumers who do not get water bills, using means recommended by the executive director. An adequate good-faith effort should be tailored to the consumers who are served by the system but are not bill-paying customers, such as renters or workers. A good-faith effort to reach such consumers should include a mix of methods appropriate to the particular system such as: posting the reports on the Internet; mailing to postal patrons in metropolitan areas; advertising the availability of the report in the news media; publication in a local newspaper; posting in public places such as cafeterias or lunchrooms of public buildings; delivery of multiple copies for distribution for single-billed customers such as apartment buildings or large private employers; and delivery to community organizations.(c) Each community water system shall certify to the executive director that the report has been distributed and that the information in the report is correct and consistent with the compliance monitoring data previously submitted to the executive director. This certification and a copy of the report must be mailed to the executive director by July 1 of each year.(d) Each community water system shall deliver the report to any other agency or clearinghouse identified by the executive director no later than the date the system is required to distribute the report to its customers.(e) Each community water system shall make its report available to the public upon request.(f) Each community water system serving 100,000 or more people shall post its current year's report to a publicly accessible site on the Internet.(g) Any system providing water to a community water system shall deliver the applicable information required by §290.272 of this title (relating to the Content of the Report) to the receiving systems by April 1 and shall certify to the executive director that the required information has been delivered. This certification must be delivered to the executive director by May 1 of each year.(h) Any system subject to this subchapter shall retain copies of its consumer confidence reports for no less than five years.(i) The executive director may waive the mailing requirement of subsection (a) of this section for a community water system serving 500 or fewer persons provided that the system provides notice at least once per year by July 1 to its customers by mail, door-to-door delivery, or by posting in an appropriate location that the report is available upon request.</content><note type="source"><p>Source Note: The provisions of this §290.274 adopted to be effective August 21, 2000, 25 TexReg 8730; amended to be effective January 6, 2005, 29 TexReg 12212.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c290/scH/s290.275"><num value="290.275">§290.275</num><heading>Appendices A - D</heading><content>The following appendices are integral components of the subchapter. (1) Appendix A--Converting Maximum Contaminant Level Compliance Values for Consumer Confidence Reports (CCR).Attached Graphic(2) Appendix B--Sources of Regulated Contaminants.Attached Graphic(3) Appendix C--Health Effects Language.Attached Graphic(4) Appendix D--Unregulated Contaminants. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §290.275 adopted to be effective August 21, 2000, 25 TexReg 8730; amended to be effective January 6, 2005, 29 TexReg 12212; amended to be effective January 9, 2008, 33 TexReg 198; amended to be effective November 8, 2012, 37 TexReg 8849; amended to be effective March 30, 2017, 42 TexReg 1466.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c291"><num value="291">CHAPTER 291</num><heading>UTILITY REGULATIONS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c291/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c291/scA/s291.1"><num value="291.1">§291.1</num><heading>Purpose and Scope of This Chapter</heading><content>This chapter is intended to govern the procedure for the institution, conduct and determination of commission proceedings under Texas Water Code (TWC), §§11.036 - 11.041 and Chapter 13. This chapter shall not be construed so as to enlarge, diminish, modify, or alter the jurisdiction, powers, or authority of the commission or the substantive rights of any person. This chapter shall be given a fair and impartial construction to obtain these objectives and shall be applied uniformly regardless of race, color, religion, sex, or marital status.</content><note type="source"><p>Source Note: The provisions of this §291.1 adopted to be effective October 9, 1990, 15 TexReg 4019; amended to be effective February 4, 1999, 24 TexReg 738; amended to be effective January 3, 2019, 43 TexReg 8617.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scA/s291.3"><num value="291.3">§291.3</num><heading>Definitions of Terms</heading><content>The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.(1) Affected county--A county to which Texas Local Government Code, Chapter 232, Subchapter B, applies.(2) Agency--Any state board, commission, department, or officer having statewide jurisdiction (other than an agency wholly financed by federal funds, the legislature, the courts, the Texas Department of Insurance, Division of Workers' Compensation, and institutions for higher education) which makes rules or determines contested cases.(3) Certificate of Convenience and Necessity--A permit issued by the Public Utility Commission of Texas which authorizes and obligates a retail public utility to furnish, make available, render, or extend continuous and adequate retail water or sewer utility service to a specified geographic area.(4) Code--The Texas Water Code.(5) Corporation--Any corporation, joint-stock company, or association, domestic or foreign, and its lessees, assignees, trustees, receivers, or other successors in interest, having any of the powers and privileges of corporations not possessed by individuals or partnerships, but shall not include municipal corporations unless expressly provided otherwise in the Texas Water Code.(6) Customer--Any person, firm, partnership, corporation, municipality, cooperative, organization, or governmental agency provided with services by any retail public utility.(7) Mandatory water use reduction--The temporary reduction in the use of water imposed by court order, government agency, or other authority with appropriate jurisdiction. This does not include water conservation measures that seek to reduce the loss or waste of water, improve the efficiency in the use of water, or increase the recycling or reuse of water so that a water supply is made available for future or alternative uses.(8) Nonfunctioning system--A retail public utility under the supervision of a receiver, temporary manager, or that has been referred for the appointment of a temporary manager or receiver, pursuant to §291.142 of this title (relating to Operation of Utility That Discontinues Operation or Is Referred for Appointment of a Receiver) and §291.143 of this title (relating to Operation of a Utility by a Temporary Manager).(9) Person--Any natural person, partnership, cooperative corporation, association, or public or private organization of any character other than an agency or municipality.(10) Potable water--Water that is used for or intended to be used for human consumption or household use.(11) Public utility--The definition of public utility is that definition given to "Water and sewer utility" in this section.(12) Purchased sewage treatment--Sewage treatment purchased from a source outside the retail public utility's system to meet system requirements.(13) Purchased water--Raw or treated water purchased from a source outside the retail public utility's system to meet system demand requirements.(14) Retail public utility--Any person, corporation, public utility, water supply or sewer service corporation, municipality, political subdivision, or agency operating, maintaining, or controlling in this state facilities for providing potable water service or sewer service, or both, for compensation.(15) Safe drinking water revolving fund--The fund established by the Texas Water Development Board to provide financial assistance in accordance with the federal program established under the provisions of the Safe Drinking Water Act and as defined in Texas Water Code, §15.602.(16) Service--Any act performed, anything furnished or supplied, and any facilities or lines committed or used by a retail public utility in the performance of its duties under the Texas Water Code to its patrons, employees, other retail public utilities, and the public, as well as the interchange of facilities between two or more retail public utilities.(17) Water and sewer utility--Any person, corporation, cooperative corporation, affected county, or any combination of those persons or entities, other than a municipal corporation, water supply or sewer service corporation, or a political subdivision of the state, except an affected county, or their lessees, trustees, and receivers, owning or operating for compensation in this state equipment or facilities for the production, transmission, storage, distribution, sale, or provision of potable water to the public or for the resale of potable water to the public for any use or for the collection, transportation, treatment, or disposal of sewage or other operation of a sewage disposal service for the public, other than equipment or facilities owned and operated for either purpose by a municipality or other political subdivision of this state or a water supply or sewer service corporation, but does not include any person or corporation not otherwise a public utility that furnishes the services or commodity only to itself or its employees or tenants as an incident of that employee service or tenancy when that service or commodity is not resold to or used by others.(18) Water use restrictions--Restrictions implemented to reduce the amount of water that may be consumed by customers of the system due to emergency conditions or drought.(19) Wholesale water or sewer service--Potable water or sewer service, or both, provided to a person, political subdivision, or municipality who is not the ultimate consumer of the service.</content><note type="source"><p>Source Note: The provisions of this §291.3 adopted to be effective October 9, 1990, 15 TexReg 4019; amended to be effective January 10, 1996, 21 TexReg 114; amended to be effective September 20, 1996, 21 TexReg 8728; amended to be effective February 4, 1999, 24 TexReg 738; amended to be effective October 19, 2000, 25 TexReg 10367; amended to be effective January 5, 2006, 30 TexReg 8958; amended to be effective July 10, 2008, 33 TexReg 5327; amended to be effective February 19, 2009, 34 TexReg 1090; amended to be effective January 3, 2019, 43 TexReg 8617.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scA/s291.14"><num value="291.14">§291.14</num><heading>Emergency Orders</heading><content>(a) The commission or executive director may issue orders under Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions) to:(1) appoint a temporary manager under Texas Water Code, §5.507 and §13.4132;(2) compel a retail public utility that has obtained a certificate of public convenience and necessity to provide water or sewer service, or both, that complies with all statutory and regulatory requirements of the commission if necessary to ensure safe drinking water or environmental protection; and(3) compel a retail public utility to provide an emergency interconnection with a neighboring retail public utility for the provision of temporary water or sewer service, or both, for not more than 90 days if necessary to ensure safe drinking water or environmental protection.(b) If an order is issued under this section without a hearing, the order shall fix a time, as soon after the emergency order is issued as is practicable, and place for a hearing to be held before the commission.</content><note type="source"><p>Source Note: The provisions of this §291.14 adopted to be effective October 9, 1990, 15 TexReg 4019; amended to be effective January 10, 1996, 21 TexReg 114; amended to be effective December 10, 1998, 23 TexReg 12436; amended to be effective January 3, 2019, 43 TexReg 8617; amended to be effective March 18, 2021, 46 TexReg 1655.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scA/s291.15"><num value="291.15">§291.15</num><heading>Notice of Wholesale Water Supply Contract</heading><content>(a) A district or authority created under Texas Constitution, §52, Article III, or §59, Article XVI, a retail public utility, a wholesale water service, or other person providing a retail public utility with a wholesale water supply shall provide the commission with a certified copy of any wholesale water supply contract with a retail public utility within 30 days after the date of the execution of the contract.(b) The submission must include:(1) the amount of water being supplied;(2) term of the contract;(3) consideration being given for the water;(4) purpose of use;(5) location of use;(6) source of supply;(7) point of delivery;(8) limitations on the reuse of water;(9) a disclosure of any affiliated interest between the parties to the contract; and(10) any other condition or agreement relating to the contract.(c) The certified copy of the contract should be submitted to the Water Supply Division of the commission.</content><note type="source"><p>Source Note: The provisions of this §291.15 adopted to be effective February 4, 1999, 24 TexReg 738; amended to be effective May 5, 2005, 30 TexReg 2528; amended to be effective September 28, 2006, 31 TexReg 8106.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c291/scD"><num value="D">SUBCHAPTER D</num><heading>RECORDS AND REPORTS</heading><section identifier="/us/state/tx/tac/t30/p1/c291/scD/s291.76"><num value="291.76">§291.76</num><heading>Regulatory Assessment</heading><content>(a) For the purpose of this section, utility service provider means a public utility, water supply or sewer service corporation as defined in Texas Water Code (TWC), §13.002, or a district as defined in TWC, §49.001.(b) Except as otherwise provided, a utility service provider which provides potable water or sewer utility service shall collect a regulatory assessment from each retail customer and remit such fee to the commission under the provisions of this section.(c) A utility service provider is prohibited from collecting a regulatory assessment from the state or a state agency or institution.(d) The regulatory assessment amount payable to the commission shall be based on the following:(1) for a public utility as defined in TWC, §13.002, 1.0% of the charge for retail water and sewer service;(2) for a water supply or sewer service corporation as defined in TWC, §13.002, 0.5% of the charge for retail water and sewer service;(3) for a district as defined in TWC, §49.001, 0.5% of the charge for retail water and sewer service.(e) The amount payable to the commission shall be based on the amounts actually collected by the utility service provider during the previous calendar year.(f) The amount payable shall be based on water and sewer service charges to retail customers only, and shall not be based on:(1) associated delinquent, penalty, or interest charges;(2) tap fees, standby fees, impact fees, extension fees, capital improvement surcharges, itemized solid waste collection fees, or other unrelated charges; or(3) wholesale charges from one utility service provider to another.(g) The utility service provider may include the assessment as a separate line item on a customer's bill or include it in the retail charge.(h) The utility service provider shall be responsible for keeping proper records of the annual retail water and sewer charges and assessment collections and provide such records to the commission upon request.(i) By January 30th of each year, the utility service provider must ensure the retail water and sewer charges for the 12 months of the previous calendar year are reported through the commission's designated format.(1) If the utility service provider does not report charges for water and sewer services to the commission by January 30th of each year, the commission may issue an invoice based on previously reported revenues and adjustment based on available information.(2) If the utility service provider has not previously reported charges for water and sewer services to the commission, the commission may issue an invoice in an amount up to $100.(3) Utility service providers who do not report charges for water and sewer services to the commission by the January 30th deadline, and who pay an invoice generated by paragraph (1) or (2) of this subsection, are not relieved of the requirement to ensure retail water and sewer charges are reported through the designated format. Once the utility service provider reports charges for water and sewer services to the commission through the designated format, the commission will invoice the utility service provider for the appropriate amount or issue a refund for any overpayment.(j) The utility service provider shall pursue collection of the assessment from the customer in the same manner and with the same diligence that it pursues collection of other service charges.(k) Assessments collected in the 12 months prior to January 1st of each year shall be paid by check, money order, electronic funds transfer, or through the commission's payment portal, and shall be made payable to the Texas Commission on Environmental Quality. If assessments are not received by the invoice due date, penalties and interest for the late payment of fees shall be assessed in accordance with Chapter 12 of this title (relating to Payment of Fees).(l) The regulatory assessment does not apply to water that has not been treated for the purpose of human consumption.(m) A utility service provider is exempt from the provisions of this section if the provider:(1) does not own and has no responsibility for operation and maintenance of the facilities necessary in providing water and sewer utility service, including distribution and collection systems;(2) does not maintain a security interest in the facilities necessary in providing water and sewer utility service;(3) has no authority to set the retail customer's rates; and(4) does not make policy decisions regarding water and sewer services.(n) If it appears that utility service provider has violated this section, the commission may request a civil suit to be brought in a court of competent jurisdiction for injunctive or other appropriate relief.(1) At the request of the commission, the attorney general shall bring and conduct the suit in the name of the state.(2) The suit may be brought in Travis County or in the county in which the defendant resides.</content><note type="source"><p>Source Note: The provisions of this §291.76 adopted to be effective April 15, 1994, 19 TexReg 2300; amended to be effective January 10, 1996, 21 TexReg 114; amended to be effective September 20, 1996, 21 TexReg 8728; amended to be effective February 14, 1997, 22 TexReg 1324; amended to be effective February 4, 1999, 24 TexReg 738; amended to be effective January 3, 2019, 43 TexReg 8617.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c291/scF"><num value="F">SUBCHAPTER F</num><heading>QUALITY OF SERVICE</heading><section identifier="/us/state/tx/tac/t30/p1/c291/scF/s291.92"><num value="291.92">§291.92</num><heading>Requirements by Others</heading><content>The application of commission rules shall not relieve the retail public utility from abiding by the requirements of the laws and regulations of the state, local department of health, local ordinances, and all other regulatory agencies having jurisdiction over such matters.</content><note type="source"><p>Source Note: The provisions of this §291.92 adopted to be effective October 9, 1990, 15 TexReg 4019; amended to be effective January 10, 1996, 21 TexReg 114; amended to be effective January 3, 2019, 43 TexReg 8617.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scF/s291.93"><num value="291.93">§291.93</num><heading>Adequacy of Water Utility Service</heading><content>Sufficiency of service. Each retail public utility which provides water service shall plan, furnish, operate, and maintain production, treatment, storage, transmission, and distribution facilities of sufficient size and capacity to provide a continuous and adequate supply of water for all reasonable consumer uses.(1) The water system quantity and quality requirements of the commission shall be the minimum standards for determining the sufficiency of production, treatment, storage, transmission, and distribution facilities of water suppliers and the safety of the water supplied for household usage. Additional capacity shall be provided to meet the reasonable local demand characteristics of the service area, including reasonable quantities of water for outside usage and livestock.(2) In cases of drought, periods of abnormally high usage, or extended reduction in ability to supply water due to equipment failure, to comply with a state agency or court order on conservation or other reasons identified in the utility's approved drought contingency plan required by §288.20 of this title (relating to Drought Contingency Plans for Municipal Uses by Public Water Suppliers), restrictions may be instituted to limit water usage in accordance with the utility's approved drought contingency plan. For utilities, these temporary restrictions must be in accordance with an approved drought contingency plan. Unless specifically authorized by the executive director, retail public utilities may not use water use restrictions in lieu of providing facilities which meet the minimum capacity requirements of the commission's rules in Chapter 290 of this title (relating to Rules and Regulations for Public Water Systems), or reasonable local demand characteristics during normal use periods, or when the system is not making all immediate and necessary efforts to repair or replace malfunctioning equipment.(A) An approved drought contingency plan must be on file with the utility's approved tariff to comply with §288.20 of this title. The utility may not implement mandatory water use restrictions without an approved drought contingency plan unless authorized by the executive director.(B) Temporary restrictions must be in accordance with the utility's approved drought contingency plan on file or specifically authorized by the executive director. The utility shall file a status report with the executive director in accordance with the requirements and time frames in the drought contingency plan for as long as water use restrictions continue or as required by the executive director. The executive director may suspend implementation of the restrictions at any time with written notice to the utility.(C) The utility must provide written notice to each customer in accordance with the drought contingency plan prior to implementing the provisions of the plan. Mailed notice is acceptable and water use restrictions may be enforced by the utility if notice is mailed 72 hours prior to the start of rationing. If notice is hand delivered, the utility cannot enforce the provisions of the plan for 24 hours after notice is provided unless authorized by the executive director. Customer notice must contain:(i) the date water use restrictions are to begin;(ii) the expected duration of the water use restrictions;(iii) the restrictions or stage of the plan being implemented and the specific restrictions which apply; and(iv) the penalties for violations of the drought contingency plan.(D) Notice shall be provided to the commission in accordance with §288.20(b) of this title and prior to implementing the mandatory provisions of the plan.(3) A retail public utility that possesses a certificate of public convenience and necessity that has reached 85% of its capacity as compared to the most restrictive criteria of the commission's minimum capacity requirements in Chapter 290 of this title shall submit to the executive director a planning report that clearly explains how the retail public utility will provide the expected service demands to the remaining areas within the boundaries of its certificated area. A report is not required if the source of supply available to the utility service provider is reduced to below the 85% level due to a court or agency conservation order unless that order is expected to extend for more than 18 months from the date it is entered in which case a report shall be required.(A) After any commission field inspection, a retail public utility must analyze the system's capacity to determine if it has reached 85% of its capacity. If the retail public utility has reached 85% of its capacity, it must file this report no later than 90 days after the date of a commission letter detailing the results of the inspection. Capacity is considered to be the overall rated capacity in number of residential connection equivalents based on the most restrictive criteria for production, treatment, storage, or pumping.(B) The report should be submitted in writing and should contain the following:(i) a brief description of the overall utility system and service area;(ii) an analysis of the plant capacity as defined in subparagraph (A) of this paragraph;(iii) details on how the retail public utility will provide service to the remaining areas within the boundaries of its certificated area. This includes projections of cost and expected design and installation dates for additional facilities.(C) The executive director may waive or limit the reporting requirements if the retail public utility demonstrates that the projected growth of the area will not require the retail public utility to exceed 100% of its current capacity for the next five years.(D) Any retail public utility required to file reports under this section of the rules, including those requesting waivers, shall file updated reports within 90 days after the retail public utility receives a copy of each subsequent commission field inspection report until the system demand is below 85% capacity.(E) Submission of this report shall not relieve the retail public utility from abiding by the requirements of other regulatory agencies as set forth in §291.92 of this title (relating to Requirements by Others).(4) Each retail public utility which possesses or is required to possess a certificate of convenience and necessity shall furnish safe water which meets the minimum quality criteria for drinking water prescribed by the commission. The supply must meet the requirements of Health and Safety Code, §341.031 and commission rules. A utility or water supply corporation which is authorized to operate without a certificate of convenience and necessity pursuant to Health and Safety Code, §13.242(c) may be required by the executive director to meet the minimum criteria prescribed by the commission if so instructed in writing.(5) In order to protect the public health at all times, each retail public utility must promptly take all reasonable actions necessary which include implementing an effective cross-connection control program necessary to comply with §290.44(h) of this title (relating to Water Distribution). If a utility elects to develop and implement a program that exceeds the minimum requirements set forth in §290.44(h) of this title, it must secure the prior approval of the executive director and may be required to fund any expenses above the costs associated with meeting the minimum requirements without reimbursement. For example, a requirement that customers on systems without documented health hazards have backflow prevention assemblies tested on an annual basis would need to be funded by the utility without reimbursement.(6) Every retail public utility shall maintain its facilities to protect them from contamination, ensure efficient operation, and promptly repair leaks.</content><note type="source"><p>Source Note: The provisions of this 291.93 adopted to be effective October 9, 1990, 15 TexReg 4019; amended to be effective January 10, 1996, 21 TexReg 114; amended to be effective February 4, 1999, 24 TexReg 738; amended to be effective October 19, 2000, 25 TexReg 10367.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scF/s291.94"><num value="291.94">§291.94</num><heading>Adequacy of Sewer Service</heading><content>(a) Sufficiency of service. Each retail public utility shall plan, furnish, operate, and maintain collection, treatment, and disposal facilities to collect, treat and dispose of waterborne human waste and waste from domestic activities such as washing, bathing, and food preparation. These facilities must be of sufficient size to meet the minimum design criteria for wastewater facilities of the commission for all normal demands for service and provide a reasonable reserve for emergencies. Unless specifically authorized in a written service agreement, a retail public utility is not required to receive, treat and dispose of waste with high BOD or TSS characteristics that cannot be reasonably processed, or storm water, run-off water, food or food scraps not previously processed by a grinder or similar garbage disposal unit, grease or oils, except as incidental waste in the process or wash water used in or resulting from food preparation by sewer utility customers engaged in the preparation and/or processing of food for domestic consumption or sale to the public. Grease and oils from grease traps or other grease and/or oil storage containers shall not be placed in the wastewater system.(b) Sufficiency of treatment. Each retail public utility shall maintain and operate treatment facilities of adequate size and properly equipped to treat sewage and discharge the effluent at the quality required by the laws and regulations of the State of Texas.(c) Maintenance of facilities.(1) The retail public utility shall maintain its collection system and appurtenances to minimize blockages.(2) If the utility retains ownership of receiving tanks located on the customer's property or other facilities and appurtenances, it is the utility's responsibility and liability to perform routine maintenance and repair.</content><note type="source"><p>Source Note: The provisions of this §291.94 adopted to be effective October 9, 1990, 15 TexReg 4019; amended to be effective January 10, 1996, 21 TexReg 114.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scF/s291.95"><num value="291.95">§291.95</num><heading>Standards of Construction</heading><content>In determining standard practice, the commission will be guided by the provisions of the American Water Works Association, and such other codes and standards that are generally accepted by the industry, except as modified by this commission, or municipal regulations within their jurisdiction. Each system shall construct, install, operate, and maintain its plant, structures, equipment, and lines in accordance with these standards, and in such manner to best accommodate the public, and to prevent interference with service furnished by other retail public utilities insofar as practical.</content><note type="source"><p>Source Note: The provisions of this §291.95 adopted to be effective October 9, 1990, 15 TexReg 4019; amended to be effective January 10, 1996, 21 TexReg 114.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c291/scG"><num value="G">SUBCHAPTER G</num><heading>CERTIFICATES OF CONVENIENCE AND NECESSITY</heading><section identifier="/us/state/tx/tac/t30/p1/c291/scG/s291.103"><num value="291.103">§291.103</num><heading>Certificates Not Required</heading><content>A utility or water supply corporation is exempt from the requirement to possess a certificate of convenience and necessity in order to provide retail water service if it:(1) has less than 15 potential service connections;(2) is not owned by or affiliated with a retail public utility or any other provider of potable water service;(3) is not within the certificated area of another retail public utility; and(4) is not within the corporate boundaries of a district or municipality unless it receives written authorization from the district or municipality.</content><note type="source"><p>Source Note: The provisions of this §291.103 adopted to be effective October 9, 1990, 15 TexReg 4019; amended to be effective January 10, 1996, 21 TexReg 114; amended to be effective February 4, 1999, 24 TexReg 738; amended to be effective January 3, 2019, 43 TexReg 8617.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scG/s291.110"><num value="291.110">§291.110</num><heading>Foreclosure and Bankruptcy</heading><content>(a) A utility that receives notice that all or a portion of the utility's facilities or property used to provide utility service are being posted for foreclosure shall notify the commission in writing of that fact not later than the tenth day after the date on which the utility receives the notice.(b) A financial institution that forecloses on a utility or on any part of the utility's facilities or property that are used to provide utility service shall provide written notice to the commission before the 30th day preceding the date on which the foreclosure is completed.(c) Not later than the 48th hour after the hour in which a utility files a bankruptcy petition, the utility shall report this fact to the commission in writing.</content><note type="source"><p>Source Note: The provisions of this §291.110 adopted to be effective January 10, 1996, 21 TexReg 114; amended to be effective January 3, 2019, 43 TexReg 8617.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scG/s291.114"><num value="291.114">§291.114</num><heading>Requirement To Provide Continuous and Adequate Service</heading><content>After notice and hearing, the commission may:(1) order any retail public utility that is required by law to possess a certificate of public convenience and necessity or any retail public utility that possesses a certificate of public convenience and necessity and is located in an affected county as defined in Texas Water Code, §16.341, to:(A) provide specified improvements in its service in a defined area if:(i) service in that area is inadequate as set forth in §291.93 and §291.94 of this title (relating to Adequacy of Water Utility Service; and Adequacy of Sewer Service); or(ii) is substantially inferior to service in a comparable area; and(iii) it is reasonable to require the retail public utility to provide the improved service; or(B) develop, implement, and follow financial, managerial, and technical practices that are acceptable to the Public Utility Commission of Texas to ensure that continuous and adequate service is provided to any areas currently certificated to the retail public utility if the retail public utility has not provided continuous and adequate service to any of those areas and, for a utility, to provide financial assurance of the retail public utility's ability to operate the system in accordance with applicable laws and rules;(2) order two or more public utilities or water supply or sewer service corporations to establish specified facilities for interconnecting service; or(3) order a public utility or water supply or sewer service corporation that has not demonstrated that it can provide continuous and adequate service from its drinking water source or sewer treatment facility to obtain service sufficient to meet its obligation to provide continuous and adequate service on at least a wholesale basis from another consenting utility service provider.</content><note type="source"><p>Source Note: The provisions of this §291.114 adopted to be effective January 10, 1996, 21 TexReg 114; amended to be effective February 4, 1999, 24 TexReg 738; amended to be effective January 3, 2019, 43 TexReg 8617.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c291/scI"><num value="I">SUBCHAPTER I</num><heading>WHOLESALE WATER PETITIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c291/scI/s291.128"><num value="291.128">§291.128</num><heading>Petition Concerning Wholesale Rate</heading><content>This subchapter sets forth substantive guidelines and procedural requirements concerning a petition filed pursuant to Texas Water Code, §§11.036 - 11.041.</content><note type="source"><p>Source Note: The provisions of this §291.128 adopted to be effective August 23, 1994, 19 TexReg 6227; amended to be effective October 19, 2000, 25 TexReg 10367; amended to be effective January 3, 2019, 43 TexReg 8617.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scI/s291.129"><num value="291.129">§291.129</num><heading>Petition</heading><content>(a) The petitioner must file a written petition with the commission accompanied by the filing fee required by the Texas Water Code. The petitioner must serve a copy of the petition on the party against whom the petitioner seeks relief and other appropriate parties.(b) The petition must clearly state the statutory authority which the petitioner invokes, specific factual allegations, and the relief which the petitioner seeks. The petitioner must attach any applicable contract to the petition.</content><note type="source"><p>Source Note: The provisions of this §291.129 adopted to be effective January 3, 2019, 43 TexReg 8617.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scI/s291.130"><num value="291.130">§291.130</num><heading>Contents of Petition under Texas Water Code, §§11.036-11.041</heading><content>(a) A person seeking relief under the Texas Water Code (TWC), §§11.036 - 11.041 should include in a written petition to the commission, the following information, as applicable to the section of the TWC under which the petitioner seeks relief:(1) the petitioner's name;(2) the name of the entity from which water is received or sought;(3) an explanation of why the petitioner is entitled to receive or use the water;(4) that the petitioner is willing and able to pay a just and reasonable price for the water;(5) that the party owning or controlling the water supply has water not contracted to others and available for the petitioner's use; and(6) that the party owning or controlling the water supply fails or refuses to supply the available water to the petitioner, or that the price or rental demanded for the available water is not just and reasonable or is discriminatory.(b) Water suppliers seeking relief under TWC, §§11.036 - 11.041 should include in a written petition for relief to the commission, the following information:(1) the petitioner's name;(2) the name of the ratepayers to whom water is rendered;(3) an explanation of why the petitioner is entitled to the relief requested;(4) that the petitioner is willing and able to supply water at a just and reasonable price; and(5) that the price demanded by the petitioner for the water is just and reasonable and is not discriminatory.(c) If the petition for relief is accompanied by the deposit stipulated in the TWC, the executive director shall have a preliminary investigation of allegations contained in the petition made and determine whether or not there are probable grounds for the complaint alleged in the petition. The commission may require the petitioner to make an additional deposit or execute a bond satisfactory to the commission in an amount fixed by the commission.(d) If, after preliminary investigation, the executive director determines that probable grounds exist for the complaint alleged in the petition, the commission shall enter an order setting a time and place for a hearing on the petition. In the hearing, the executive director's participation will be limited to presenting evidence and testimony relating to the portions of the petition within the commission's jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §291.130 adopted to be effective January 3, 2019, 43 TexReg 8617.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scI/s291.131"><num value="291.131">§291.131</num><heading>Executive Director's Review of Petition</heading><content>When a petition is filed, including a petition subject to the Texas Water Code (TWC), §11.041, the executive director shall determine within ten days of the filing of the petition whether the petition contains all of the information required by this subchapter. For purposes of this section only, the executive director's review of probable grounds shall be limited to a determination whether the petitioner has met the requirements of §291.129 of this title (relating to Petition). If the executive director determines that the petition does not meet the requirements of §291.129 of this title, the executive director shall inform the petitioner of the deficiencies within the petition and allow the petitioner the opportunity to correct these deficiencies. If the executive director determines that the petition does meet the requirements of §291.129 of this title, the executive director shall forward the petition to the State Office of Administrative Hearings for an evidentiary hearing under TWC, §§11.036 - 11.041 as applicable.</content><note type="source"><p>Source Note: The provisions of this §291.131 adopted to be effective August 23, 1994, 19 TexReg 6227; amended to be effective September 20, 1996, 21 TexReg 8728; amended to be effective October 19, 2000, 25 TexReg 10367; amended to be effective January 3, 2019, 43 TexReg 8617.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c291/scJ"><num value="J">SUBCHAPTER J</num><heading>ENFORCEMENT, SUPERVISION, AND RECEIVERSHIP</heading><section identifier="/us/state/tx/tac/t30/p1/c291/scJ/s291.140"><num value="291.140">§291.140</num><heading>Enforcement Action</heading><content>If the executive director has reason to believe that the failure of the owner or operator of a water utility to properly operate, maintain, or provide adequate facilities presents an imminent threat to human health or safety, the executive director shall immediately:(1) Notify the utility's representative; and(2) Initiate enforcement action consistent with:(A) This subchapter; and(B) Procedural rules adopted by the commission.</content><note type="source"><p>Source Note: The provisions of this §291.140 adopted to be effective February 4, 1999, 24 TexReg 738.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scJ/s291.142"><num value="291.142">§291.142</num><heading>Operation of Utility That Discontinues Operation or Is Referred for Appointment of a Receiver</heading><content>(a) The commission or the executive director, after providing to the utility notice and an opportunity for a hearing, may authorize a willing person to temporarily manage and operate a utility that:(1) has discontinued or abandoned operations or the provision of services;(2) is being referred to the attorney general for the appointment of a receiver under Texas Water Code (TWC), §13.412 for:(A) having expressed an intent to abandon or abandoned operation of its facilities;(B) having violated a final order of the commission;(C) having allowed any property owned or controlled by it to be used in violation of a final order of the commission; or(D) violates a final judgment issued by a district court in a suit brought by the attorney general under:(i) TWC, Chapter 7;(ii) TWC, Chapter 13;(iii) Texas Health and Safety Code, Chapter 341; or(3) provides retail water or sewer utility service through fewer than 10,000 taps or connections and violates a final order of the commission by failing to:(A) provide system capacity that is greater than the required raw water or groundwater production rate or the anticipated daily demand of the system;(B) provide a minimum pressure of 35 pounds per square inch throughout the distribution system under normal operating conditions; or(C) maintain accurate or properly calibrated testing equipment or other means of monitoring the effectiveness of a chemical treatment or pathogen inactivation or removal process.(b) The commission or the executive director may appoint a person under this section by emergency order under Chapter 35 of this title (relating to Emergency and Temporary Order and Permits; Temporary Suspension or Amendment of Permit Conditions). A corporation may be appointed a temporary manager.(c) Abandonment includes, but is not limited to:(1) failure to pay a bill or obligation owed to a retail public utility or to an electric or gas utility with the result that the utility service provider has issued a notice of discontinuance of necessary services;(2) failure to provide appropriate water or wastewater treatment so that a potential health hazard results;(3) failure to adequately maintain facilities or to provide sufficient facilities resulting in potential health hazards, extended outages, or repeated service interruptions;(4) failure to provide customers adequate notice of a health hazard or potential health hazard;(5) failure to secure an alternative available water supply during an outage;(6) displaying a pattern of hostility toward or repeatedly failing to respond to the commission or the utility's customers; and(7) failure to provide the commission or its customers with adequate information on how to contact the utility for normal business and emergency purposes.(d) This section does not affect the authority of the commission to pursue an enforcement claim against a utility or an affiliated interest.</content><note type="source"><p>Source Note: The provisions of this §291.142 adopted to be effective January 10, 1996, 21 TexReg 114; amended to be effective December 10, 1998, 23 TexReg 12436; amended to be effective January 3, 2019, 43 TexReg 8617; amended to be effective March 18, 2021, 46 TexReg 1655.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scJ/s291.143"><num value="291.143">§291.143</num><heading>Operation of a Utility by a Temporary Manager</heading><content>(a) By emergency order under Texas Water Code (TWC), §5.507 and §13.4132, the commission or the executive director may appoint a person under Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions) to temporarily manage and operate a utility that has discontinued or abandoned operations or the provision of services, or which has been or is being referred to the attorney general for the appointment of a receiver under TWC, §13.412.(b) A person appointed under this section has the powers and duties necessary to ensure the continued operation of the utility and the provision of continuous and adequate services to customers, including the power and duty to:(1) read meters;(2) bill for utility services;(3) collect revenues;(4) disburse funds;(5) request rate increases if needed;(6) access all system components;(7) conduct required sampling;(8) make necessary repairs; and(9) perform other acts necessary to assure continuous and adequate utility service as authorized by the commission.(c) Upon appointment by the commission, the temporary manager will post financial assurance with the commission in an amount and type acceptable to the commission. The temporary manager or the executive director may request waiver of the financial assurance requirements or may request substitution of some other form of collateral as a means of ensuring the continued performance of the temporary manager.(d) The term of an emergency order issued to appoint a temporary manager may not exceed 360 days. The emergency order may be renewed:(1) once for a period not to exceed 360 days, or(2) if the utility is undergoing a sale, transfer, merger, consolidation, or acquisition required to be reported to the Public Utility Commission under Tex. Water Code §13.301, until the sale, transfer, merger, consolidation, or acquisition process is complete.(e) The temporary manager shall serve a term not to exceed 360 days, unless:(1) specified otherwise by the commission;(2) an extension is requested by the executive director or the temporary manager and granted by the commission under subsection (d) of this section;(3) the temporary manager is discharged from his responsibilities by the commission; or(4) a superseding action is taken by an appropriate court on the appointment of a receiver at the request of the attorney general.(f) Within 60 days after appointment, a temporary manager shall return to the commission an inventory of all property received.(g) Compensation for the temporary manager will come from utility revenues and will be set by the commission at the time of appointment. Changes in the compensation agreement can be approved by the executive director.(h) The temporary manager shall collect the assets and carry on the business of the utility and shall use the revenues and assets of the utility in the best interests of the customers to ensure that continuous and adequate utility service is provided. The temporary manager shall give priority to expenses incurred in normal utility operations and for repairs and improvements made since being appointed temporary manager.(i) The temporary manager shall report to the executive director on a monthly basis. This report shall include:(1) an income statement for the reporting period;(2) a summary of utility activities such as improvements or major repairs made, number of connections added, and amount of water produced or treated; and(3) any other information required by the executive director.(j) During the period in which the utility is managed by the temporary manager, the certificate of convenience and necessity shall remain in the name of the utility owner; however, the temporary manager assumes the obligations for operating within all legal requirements.</content><note type="source"><p>Source Note: The provisions of this §291.143 adopted to be effective January 10, 1996, 21 TexReg 114; amended to be effective December 10, 1998, 23 TexReg 12436; amended to be effective January 3, 2019, 43 TexReg 8617; amended to be effective January 9, 2025, 50 TexReg 176.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scJ/s291.144"><num value="291.144">§291.144</num><heading>Fines and Penalties</heading><content>(a) Fines and penalties collected under Texas Water Code, Chapter 13, from a retail public utility that is not a public utility in other than criminal proceedings shall be paid to the commission and deposited in the general revenue fund.(b) The commission shall provide a reasonable period for a retail public utility that takes over a nonfunctioning system to bring the nonfunctioning system into compliance with commission rules, during which the commission may not impose a penalty for any deficiency in the system that is present at the time the retail public utility takes over the nonfunctioning system. The commission must consult with the retail public utility before determining the period and may grant an extension of the period for good cause.</content><note type="source"><p>Source Note: The provisions of this §291.144 adopted to be effective February 4, 1999, 24 TexReg 738; amended to be effective February 19, 2009, 34 TexReg 1090.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scJ/s291.145"><num value="291.145">§291.145</num><heading>Preenforcement Threshold of Noncompliance</heading><content>(a) Definitions.(1) Operating Entity--The governing body of a political subdivision, as defined by Texas Water Code, §17.921(3) and by the rules of the Texas Water Development Board (TWDB), responsible for providing water supply and sewer services and the management of its water and sewer system.(2) Preenforcement Threshold of Noncompliance--The point at which the commission determines that an operating entity needs training because its financial, managerial, or technical capabilities are inadequate to ensure that operation of its water or wastewater facilities will meet requirements of the Economically Distressed Areas Program ((EDAP), Texas Water Code, Chapter 17, Subchapter M) or are inadequate to ensure its financial viability.(b) The commission may evaluate whether the managerial, financial, and technical capabilities of an operating entity who is an applicant for, or recipient of, financial assistance from the EDAP are adequate to meet program requirements or to remain financially viable. The commission may also evaluate whether an operating entity needs training if the operating entity has a history of compliance problems.(c) The commission may notify the TWDB that the operating entity needs training if an inspection or other assessment of the water or sewer system by the TWDB or commission reveals that the governing body has failed to:(1) properly exercise its fiduciary duties;(2) properly manage its employees' work-related activities; or(3) ensure adequate operation of its physical facilities.(d) The commission shall notify the TWDB when the commission assesses a penalty against an operating entity. If the commission assesses a penalty against an operating entity in an enforcement action, the enforcement order shall contain a provision requiring that the operating entity receive training as required by the TWDB.</content><note type="source"><p>Source Note: The provisions of this §291.145 adopted to be effective July 31, 2002, 27 TexReg 6719.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c291/scL"><num value="L">SUBCHAPTER L</num><heading>STANDARDS OF EMERGENCY OPERATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c291/scL/s291.160"><num value="291.160">§291.160</num><heading>Purpose</heading><content>Texas Water Code, Chapter 13, Subchapter E, §13.1394 and §13.1395, prescribes the duties of the commission relating to standards for emergency operations of affected utilities. The statutes require that the commission ensure that affected utilities provide water service as soon as safe and practicable during an extended power outage. This subchapter sets forth requirements and implementation of emergency operation planning of affected utilities as defined in this subchapter. Public water systems must comply with the emergency operations requirements as defined in Chapter 290, Subchapter D of this title (relating to Rules and Regulations for Public Water Systems).</content><note type="source"><p>Source Note: The provisions of this §291.160 adopted to be effective December 10, 2009, 34 TexReg 8766; amended to be effective December 21, 2023, 48 TexReg 7611.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scL/s291.161"><num value="291.161">§291.161</num><heading>Definitions</heading><content>For the purposes of this subchapter, the following definitions apply.(1) Affected utility -(A) Any retail public utility, exempt utility, or provider or conveyor of potable or raw water service that furnishes water service to more than one customer is an affected utility as defined in TWC, §13.1394; or(B) Any retail public utility, exempt utility, or provider or conveyor of potable or raw water service that furnishes water service to more than one customer is an affected utility as defined in TWC, §13.1395 in a county with a population of:(i) 3.3 million or more; or(ii) 800,000 or more adjacent to a county with a population of 3.3 million or more.(2) Emergency operations--The operation of an affected utility during an extended power outage at a minimum water pressure of 20 pounds per square inch (psi), or a water pressure approved by the executive director as required under TWC, §13.1394 or 35 psi as required under TWC, §13.1395.(3) Extended power outage--A power outage lasting for more than 24 hours.(4) Population--The population shown by the most recent federal decennial census.</content><note type="source"><p>Source Note: The provisions of this §291.161 adopted to be effective December 10, 2009, 34 TexReg 8766; amended to be effective November 8, 2012, 37 TexReg 8855; amended to be effective December 21, 2023, 48 TexReg 7611; amended to be effective January 9, 2025, 50 TexReg 176.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scL/s291.162"><num value="291.162">§291.162</num><heading>Emergency Operation of an Affected Utility as Defined in TWC §13.1395</heading><content>(a) An affected utility shall adopt and submit to the executive director for its approval an emergency preparedness plan that demonstrates the utility's ability to provide emergency operations.(b) The executive director shall review an emergency preparedness plan submitted by an affected utility. If the executive director determines that the plan is not acceptable, the executive director shall recommend changes to the plan. The executive director must make its recommendations on or before the 90th day after the executive director receives the plan.(c) An emergency preparedness plan shall provide for one of the following:(1) the maintenance of automatically starting auxiliary generators;(2) the sharing of auxiliary generator capacity with one or more affected utilities;(3) the negotiation of leasing and contracting agreements, including emergency mutual aid agreements with other retail public utilities, exempt utilities, or providers or conveyors of potable or raw water service, if the agreements provide for coordination with the division of emergency management in the governor's office;(4) the use of portable generators capable of serving multiple facilities equipped with quick-connect systems;(5) the use of on-site electrical generation or distributed generation facilities;(6) hardening the electric transmission and distribution system serving the water system;(7) for existing facilities, the maintenance of direct engine or right angle drives; or(8) any other alternative determined by the executive director to be acceptable.(d) Each affected utility that supplies, provides, or conveys surface water to wholesale customers shall include in its emergency preparedness plan provisions for the actual installation and maintenance of automatically starting auxiliary generators or distributive generation facilities for each raw water intake pump station, water treatment plant, pump station, and pressure facility necessary to provide water to its wholesale customers. This subsection does not apply to raw water services that are unnecessary or otherwise subject to interruption or curtailment during emergencies under a contract.(e) The affected utility may use the template in Appendix G2 of §290.47 of this title (relating to Appendices) to assist in preparation of the plan.(f) An emergency generator used as part of an approved emergency preparedness plan must be inspected, operated, and maintained according to the manufacturer's specifications and the requirements listed in §290.46(m)(8) of this title (relating to Minimum Acceptable Operating Practices for Public Drinking Water Systems).(g) The executive director may grant a waiver of the requirements of this section to an affected utility if the executive director determines that compliance with this section will cause a significant financial burden on customers of the affected utility. The affected utility shall submit financial, managerial, and technical information as requested by the executive director to demonstrate the financial burden.(h) An affected utility may adopt and is encouraged to enforce limitations on water use while the utility is providing emergency operations.(i) Information provided by an affected utility under this section is confidential and is not subject to disclosure under Texas Government Code, Chapter 552.(j) Affected utilities which are established after December 31, 2012 must have emergency preparedness plans approved and implemented prior to providing water to customers.(k) An affected utility may file with the executive director a written request for an extension, not to exceed 90 days, of the date by which the affected utility is required under this subchapter to submit the affected utility's emergency preparedness plan or the date the affected utility is required to implement the plan.(l) If an affected utility fails to provide a minimum of 35 pounds per square inch throughout the distribution system during emergency operations as soon as it is safe and practicable following the occurrence of a natural disaster, a revised emergency preparedness plan shall be submitted for review and approval within 180 days of the date normal power is restored. Based on the review of the revised emergency preparedness plan, the executive director may require additional or alternative auxiliary emergency facilities.</content><note type="source"><p>Source Note: The provisions of this §291.162 adopted to be effective December 10, 2009, 34 TexReg 8766; amended to be effective November 8, 2012, 37 TexReg 8855; amended to be effective December 21, 2023, 48 TexReg 7611.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c291/scL/s291.163"><num value="291.163">§291.163</num><heading>Emergency Operation of an Affected Utility as Defined in TWC §13.1394</heading><content>(a) An affected utility shall adopt and submit to the executive director for approval an emergency preparedness plan that demonstrates the utility's ability to provide emergency operations and a timeline for implementing the plan.(b) The executive director shall review an emergency preparedness plan submitted by an affected utility. If the executive director determines that the plan is not acceptable, the executive director shall request additional information or recommend changes to the plan. The executive director shall communicate to the affected utility the request for information or recommendations on or before the 90th day after the executive director receives the plan.(c) An emergency preparedness plan shall include one or more of the following:(1) the maintenance of automatically starting auxiliary generators;(2) the sharing of auxiliary generator capacity with one or more affected utilities, including through participation in a statewide mutual aid program;(3) the negotiation of leasing and contracting agreements, including emergency mutual aid agreements with other retail public utilities, exempt utilities, or providers or conveyors of potable or raw water service, if the agreements provide for coordination with the division of emergency management in the governor's office;(4) the use of portable generators capable of serving multiple facilities equipped with quick-connect systems;(5) the use of on-site electrical generation or distributed generation facilities;(6) hardening the electric transmission and distribution system serving the water system;(7) the maintenance of direct engine or right-angle drives;(8) designation of the water system as a critical load facility or redundant, isolated, or dedicated electrical feeds;(9) water storage capabilities;(10) water supplies delivered from outside the service area of the affected utility;(11) the ability to provide water through artesian flows;(12) redundant interconnectivity between pressure zones;(13) emergency water demand rules to maintain emergency operations; or(14) any other alternative determined by the executive director to be acceptable.(d) Each affected utility that supplies, provides, or conveys raw surface water to wholesale customers shall include in its emergency preparedness plan provisions for demonstrating the capability of each raw water intake pump station, pump station, and pressure facility necessary to provide water service to its wholesale customers. This subsection does not apply to raw water services that are unnecessary or otherwise subject to interruption or curtailment during emergencies under a contract.(e) The affected utility may use the template in Appendix G1 of §290.47 of this title (relating to Appendices) to assist in preparation of the plan.(f) An emergency generator used as part of an approved emergency preparedness plan must be inspected, operated, and maintained according to the manufacturer's specifications and the requirements listed in §290.46(m)(8) of this title (relating to Minimum Acceptable Operating Practices for Public Drinking Water Systems).(g) The executive director may grant a waiver of the requirements of this section to an affected utility if the executive director determines that compliance with this section will cause a significant financial burden on customers of the affected utility. The affected utility shall submit financial, managerial, and technical information as requested by the executive director to demonstrate the financial burden.(h) An affected utility may adopt and is encouraged to enforce limitations on water use while the utility is providing emergency operations.(i) Information provided by an affected utility under this section is confidential and is not subject to disclosure under Texas Government Code, Chapter 552.(j) Affected utilities, established after December 31, 2022, must have emergency preparedness plans approved and implemented prior to providing water to customers.(k) If an affected utility fails to provide a minimum of 20 psi, or a water pressure approved by the commission, throughout the distribution system during emergency operations as soon as it is safe and practicable following the occurrence of a natural disaster, a revised emergency preparedness plan shall be submitted for review and approval within 180 days of the date normal power is restored. Based on the review of the revised emergency preparedness plan, the executive director may require additional or alternative auxiliary emergency facilities.</content><note type="source"><p>Source Note: The provisions of this §291.163 adopted to be effective December 21, 2023, 48 TexReg 7611.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c291/scM"><num value="M">SUBCHAPTER M</num><heading>WATER SHORTAGE REPORT</heading><section identifier="/us/state/tx/tac/t30/p1/c291/scM/s291.200"><num value="291.200">§291.200</num><heading>Water Shortage Reporting</heading><content>(a) A retail public utility as defined by Texas Water Code, §13.002(19) and each entity from which the utility is obtaining wholesale water service for the utility's retail system shall report to the executive director when the utility or entity is reasonably certain that the water supply will be available for less than 180 days. The reporting must be accomplished by utilizing the online "PWS Drought Contingency Plan Reporting Form."(b) If reporting cannot be accomplished in accordance with subsection (a) of this section then the retail public utility or entity from which the utility is obtaining wholesale water service may report to the executive director by United States Postal Service mail, program electronic mail, or facsimile.</content><note type="source"><p>Source Note: The provisions of this §291.200 adopted to be effective September 11, 2014, 39 TexReg 7168.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c292"><num value="292">CHAPTER 292</num><heading>SPECIAL REQUIREMENTS FOR CERTAIN DISTRICTS AND AUTHORITIES</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c292/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c292/scA/s292.1"><num value="292.1">§292.1</num><heading>Objective and Scope of Rules</heading><content>(a) The commission has the continuing right of supervision of districts and authorities created under Article III, §52 and Article XVI, §59 of the Texas Constitution. This chapter shall govern the administrative policies of the following districts:(1) Angelina and Neches River Authority;(2) Bexar-Medina-Atascosa Counties Water Control and Improvement District Number 1;(3) Brazos River Authority;(4) Canadian River Municipal Water Authority;(5) Colorado River Municipal Water District;(6) Dallas County Utility and Reclamation District;(7) Guadalupe-Blanco River Authority;(8) Gulf Coast Water Authority;(9) Lavaca-Navidad River Authority;(10) Lower Colorado River Authority;(11) Lower Neches Valley Authority;(12) Mackenzie Municipal Water Authority;(13) North Central Texas Municipal Water Authority;(14) North Harris County Regional Water Authority;(15) North Texas Municipal Water District;(16) Northeast Texas Municipal Water District;(17) Nueces River Authority;(18) Red River Authority of Texas;(19) Sabine River Authority;(20) San Antonio River Authority;(21) San Jacinto River Authority;(22) Sulphur River Basin Authority;(23) Sulphur River Municipal Water District;(24) Tarrant Regional Water District, a Water Control and Improvement District;(25) Titus County Fresh Water Supply District Number 1;(26) Trinity River Authority of Texas;(27) Upper Colorado River Authority;(28) Upper Guadalupe River Authority;(29) Upper Neches River Municipal Water Authority; and(30) West Central Texas Municipal Water District.(b) Nothing in this chapter shall be construed to relieve a district of its legal duties, obligations, or liabilities relative to its responsibilities as defined in its enabling legislation or in the TWC.</content><note type="source"><p>Source Note: The provisions of this §292.1 adopted to be effective October 22, 1992, 17 TexReg 7101; amended to be effective October 22, 1996, 21 TexReg 9904; amended to be effective November 28, 2002, 27 TexReg 10945; amended to be effective April 2, 2023, 48 TexReg 1639.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c292/scA/s292.2"><num value="292.2">§292.2</num><heading>Meaning of Certain Words</heading><content>Unless the context requires otherwise, the following terms and phrases shall mean the following:(1) Authority shall be used interchangeably with the term District to connote any entity created by Article III, Section 52 or Article XVI, Section 59, of the Texas Constitution and which are subject to these rules.(2) Board means the governing body of the district.</content><note type="source"><p>Source Note: The provisions of this §292.2 adopted to be effective October 22, 1992, 17 TexReg 7101; amended to be effective October 22, 1996, 21 TexReg 9904.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c292/scB"><num value="B">SUBCHAPTER B</num><heading>ADMINISTRATIVE POLICIES</heading><section identifier="/us/state/tx/tac/t30/p1/c292/scB/s292.11"><num value="292.11">§292.11</num><heading>Administrative Policies To Be Adopted by the Board</heading><content>(a) All districts must adopt certain administrative policies in compliance with Water Code, §49.199 and §49.200. The administrative policies shall incorporate the legal provisions as set forth in §292.13 of this title (relating to Minimum Provisions). The provisions set forth in §292.13 of this title are considered to be the minimum standards by which the conduct and activities of the boards are governed.(b) These rules do not preclude any district from adopting policies which address other administrative matters or which are more specific as to the interpretation and implementation of the legal provisions referenced in §292.12 of this title (relating to Right of Executive Director To Review Policies and Other Documents).</content><note type="source"><p>Source Note: The provisions of this §292.11 adopted to be effective October 22, 1992, 17 TexReg 7101; amended to be effective October 22, 1996, 21 TexReg 9904.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c292/scB/s292.12"><num value="292.12">§292.12</num><heading>Right of Executive Director To Review Policies and Other Documents</heading><content>(a) Each authority subject to these rules shall submit to the executive director a copy of its administrative policies and any subsequent amendments as adopted by the governing board.(b) The executive director shall file the copies of the administrative policies and shall make them available for public inspections.(c) The executive director may request additional documents from the district or inspect records at the office of the district to determine compliance with the adopted administrative policies.</content><note type="source"><p>Source Note: The provisions of this §292.12 adopted to be effective October 22, 1992, 17 TexReg 7101.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c292/scB/s292.13"><num value="292.13">§292.13</num><heading>Minimum Provisions</heading><content>The following provisions shall be incorporated into the administrative policies adopted by the authorities subject to these rules.(1) Code of Ethics. The administrative policies shall mandate compliance with the following standards:(A) the Local Government Code, Chapter 171, relating to conflicts of interests with a business entity in which the official has a substantial interest.(B) Texas Government Code, Chapter 573, relating to nepotism.(C) for River Authorities, Texas Government Code, Chapter 572, relating to standards of conduct, personal financial disclosure, and conflict of interest.(D) Article III, Section 52, of the Texas Constitution, relating to the prohibition on granting public money or things of value to any individual, association or corporation.(2) Travel Expenditures. The administrative policies shall provide for reimbursing district officials for necessary and reasonable travel expenditures incurred while conducting business or performing official duties or assignments. The board may adopt additional policies which further define the criteria for necessary and reasonable travel expenditures and which provide procedures for the reimbursement of expenses.(3) Investments. The administrative polices shall provide for compliance with the following statutes:(A) Subchapter A, Chapter 2256, Government Code (the Public Funds Investment Act);(B) Chapter 2257, Government Code (the Public Funds Collateral Act); and(C) any other appropriate statutes which are applicable to the investment of the authority's funds.(4) Professional Services Policy. The administrative polices shall provide for compliance with the following standards:(A) Texas Government Code, Chapter 2254, Subchapter A (the Professional Services Procurement Act) which prohibits the selection of professional services based on competitive bids.(B) A list shall be maintained of at least three qualified persons or firms for each area of professional service used by the authority. The pre-qualified persons or firms shall be sent a request for proposal for any contract award for a new project which is expected to exceed $25,000.(5) Management Policies. The administrative policies shall provide for the following:(A) an independent management audit to be conducted every five years and submitted to the executive director. As an alternative, an internal audit office may be established which reports to the board of directors.(B) compliance with the provisions and intent of Texas Government Code Chapter 2161 relative to contracting with underutilized businesses and providing equal employment opportunities.</content><note type="source"><p>Source Note: The provisions of this §292.13 adopted to be effective October 22, 1992, 17 TexReg 7101; amended to be effective October 22, 1996, 21 TexReg 9904; amended to be effective April 2, 2023, 48 TexReg 1639.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c293"><num value="293">CHAPTER 293</num><heading>WATER DISTRICTS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scA/s293.1"><num value="293.1">§293.1</num><heading>Objective and Scope of Rules; Meaning of Certain Words</heading><content>(a) The commission has the statutory duty and responsibility to create, supervise, and dissolve certain water and water related districts and to approve the issuance and sale of bonds for district improvements in accordance with the Texas Water Code (TWC). This chapter, adopted under TWC, §§5.103, 5.105, and 5.701, shall govern the creation, supervision, and dissolution of all general and special law districts subject to and within the applicable limits of the jurisdiction of the commission.(b) This chapter shall govern the conversion of districts into municipal utility districts as provided in TWC, §§54.030 - 54.036.(c) The term "recreational facilities" means parks, landscaping, parkways, greenbelts, sidewalks, trails, public right-of-way beautification projects, and recreational equipment and facilities. The term includes associated street and security lighting. The term does not include a minor improvement or beautification project to land acquired or to be acquired as part of a district's water, wastewater, or drainage facilities.</content><note type="source"><p>Source Note: The provisions of this §293.1 adopted to be effective September 5, 1986, 11 TexReg 3732; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective October 6, 2002, 27 TexReg 9365; amended to be effective May 5, 2005, 30 TexReg 2533; amended to be effective October 26, 2006, 31 TexReg 8699; amended to be effective November 13, 2014, 39 TexReg 8730.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scA/s293.2"><num value="293.2">§293.2</num><heading>Duties, Obligations, and Liabilities</heading><content>Nothing in this chapter shall be construed to relieve a district of its legal duties, obligations, or liabilities relative to its responsibilities as defined in the Texas Water Code.</content><note type="source"><p>Source Note: The provisions of this §293.2 adopted to be effective September 5, 1986, 11 TexReg 3732.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scA/s293.3"><num value="293.3">§293.3</num><heading>Continuing Right of Supervision of Districts and Authorities Created under Article III, Section 52 and Article XVI, Section 59 of the Texas Constitution</heading><content>(a) The powers and duties of all districts and authorities created under the Texas Constitution, Article III, §52, and Article XVI, §59, are subject to the continuing right of supervision of the state of Texas, by and through the commission or its successor, and this supervision may include but is not limited to the authority to:(1) inquire into the qualifications of the officers and directors of any district or authority;(2) require, on its own motion or on complaint by any person, audits, or other financial information, inspections, evaluations, and engineering reports;(3) issue subpoenas for witnesses to carry out its authority under this subsection;(4) institute investigations and hearings;(5) issue rules necessary to supervise the districts and authorities, except that such rules shall not apply to water quality ordinances adopted by any river authority which meet or exceed minimum requirements established by the commission;(6) issue a permit under Texas Health and Safety Code, Chapter 361, regardless of a district's rule or objection; and(7) the right of supervision granted in this subsection shall not apply to matters relating to electric utility operations.(b) The executive director shall prepare and submit to the governor, lieutenant governor, and speaker of the house a report of any findings made under this section.</content><note type="source"><p>Source Note: The provisions of this §293.3 adopted to be effective September 5, 1986, 11 TexReg 3732; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective October 29, 2020, 45 TexReg 7593.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scA/s293.4"><num value="293.4">§293.4</num><heading>Public Records</heading><content>(a) Audits on file with a district and all other records and information as set forth in the Texas Water Code, §49.194, shall be maintained in the district office and shall be available to the public during normal business hours as provided in Texas Government Code, Chapter 552.(b) All records and information required by law to be filed with the agency shall be available for public inspection during the office hours of the agency.</content><note type="source"><p>Source Note: The provisions of this §293.4 adopted to be effective September 5, 1986, 11 TexReg 3732; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scA/s293.5"><num value="293.5">§293.5</num><heading>Petition to Commission</heading><content>The provisions of Chapter 281 of this title (relating to Applications Processing) notwithstanding, in the event that the executive director has not forwarded to the commission a memorandum recommending approval or disapproval of any application or request required or permitted under this chapter within 90 days after receipt thereof, the petitioner may request that the commission immediately consider such matter on the basis of the materials and data on file with the commission. Within 19 days after the filing of the request, the commission shall hold a hearing on the request. If the commission determines that sufficient material and data have been provided, the commission shall direct the executive director to present to the commission a complete memorandum on the application within 10 days. If the commission determines that sufficient material and data have not been provided, the commission shall specify the additional information and material to be submitted by petitioner. An order directing the executive director to prepare the memorandum shall in no way prejudice the action which the commission may take on the merits of the application.</content><note type="source"><p>Source Note: The provisions of this §293.5 adopted to be effective September 5, 1986, 11 TexReg 3732; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scA/s293.6"><num value="293.6">§293.6</num><heading>Applications Processing Requirements</heading><content>Except as otherwise provided in this chapter, all applications for commission actions authorized by the Texas Water Code and this chapter are subject to and governed by Chapter 281 of this title (relating to Applications Processing) which provides procedures and schedules for processing all applications by the commission, and Chapter 50 of this title (relating to Action on Applications) and Chapter 55 of this title (relating to Request for Contested Case Hearings) as applicable.</content><note type="source"><p>Source Note: The provisions of this §293.6 adopted to be effective September 5, 1986, 11 TexReg 3732; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scB"><num value="B">SUBCHAPTER B</num><heading>CREATION OF WATER DISTRICTS</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scB/s293.11"><num value="293.11">§293.11</num><heading>Information Required to Accompany Applications for Creation of Districts</heading><content>(a) Creation applications for all types of districts, excluding groundwater conservation districts, shall contain the following:(1) $700 nonrefundable application fee;(2) if a proposed district's purpose is to supply fresh water for domestic or commercial use or to provide wastewater services, roadways, or drainage, a certified copy of the action of the governing body of any municipality in whose extraterritorial jurisdiction the proposed district is located, consenting to the creation of the proposed district, under Texas Local Government Code, §42.042. If the governing body of any such municipality fails or refuses to grant consent, the petitioners must show that the provisions of Texas Local Government Code, §42.042, have been followed;(3) if city consent was obtained under paragraph (2) of this subsection, provide the following:(A) evidence that the application conforms substantially to the city consent; provided, however, that nothing in this chapter shall prevent the commission from creating a district with less land than included in the city consent; and(B) evidence that the city consent does not place any conditions or restrictions on a district other than those permitted by Texas Water Code (TWC), §54.016(e) and (i);(4) a statement by the appropriate secretary or clerk that a copy of the petition for creation of the proposed district was received by any city in whose corporate limits any part of the proposed district is located;(5) evidence of submitting a creation petition and report to the appropriate commission regional office;(6) if substantial development is proposed, a market study and a developer's financial statement;(7) if the petitioner is a corporation, trust, partnership, or joint venture, a certificate of corporate authorization to sign the petition, a certificate of the trustee's authorization to sign the petition, a copy of the partnership agreement or a copy of the joint venture agreement, as appropriate, to evidence that the person signing the petition is authorized to sign the petition on behalf of the corporation, trust, partnership, or joint venture;(8) a vicinity map;(9) unless waived by the executive director, for districts where substantial development is proposed, a certification by the petitioning landowners that those lienholders who signed the petition or a separate document consenting to the petition, or who were notified by certified mail, are the only persons holding liens on the land described in the petition;(10) if the petitioner anticipates recreational facilities being an intended purpose, a detailed summary of the proposed recreational facility projects, projects' estimated costs, and proposed financing methods for the projects as part of the preliminary engineering report; and(11) other related information as required by the executive director.(b) Creation application requirements and procedures for TWC, Chapter 36, Groundwater Conservation Districts, are provided in Subchapter C of this chapter (relating to Special Requirements for Groundwater Conservation Districts).(c) Creation applications for TWC, Chapter 51, Water Control and Improvement Districts, within two or more counties shall contain items listed in subsection (a) of this section and the following:(1) a petition as required by TWC, §51.013, requesting creation signed by the majority of persons holding title to land representing a total value of more than 50% of value of all land in the proposed district as indicated by tax rolls of the central appraisal district, or if there are more than 50 persons holding title to land in the proposed district, the petition can be signed by 50 of them. The petition shall include the following:(A) name of district;(B) area and boundaries of district;(C) constitutional authority;(D) purpose(s) of district;(E) statement of the general nature of work and necessity and feasibility of project with reasonable detail; and(F) statement of estimated cost of project;(2) evidence that the petition was filed with the office of the county clerk of the county(ies) in which the district or portions of the district are located;(3) a map showing the district boundaries, metes and bounds, area, physical culture, and computation sheet for survey closure;(4) a preliminary plan (22 - 24 inches by 36 inches or digital data in electronic format) showing the location of existing facilities including highways, roads, and other improvements, together with the location of proposed utility mains and sizing, general drainage patterns, principal drainage ditches and structures, utility plant sites, recreational areas, commercial and school sites, areas within the 100-year flood plain and 100-year floodway, and any other information pertinent to the project including an inventory of any existing water, wastewater, or drainage facilities;(5) a preliminary engineering report including the following as applicable:(A) a description of existing area, conditions, topography, and proposed improvements;(B) land use plan;(C) 100-year flood computations or source of information;(D) existing and projected populations;(E) tentative itemized cost estimates of the proposed capital improvements and itemized cost summary for anticipated bond issue requirement;(F) projected tax rate and water and wastewater rates;(G) an investigation and evaluation of the availability of comparable service from other systems including, but not limited to, water districts, municipalities, and regional authorities;(H) an evaluation of the effect the district and its systems and subsequent development within the district will have on the following:(i) land elevation;(ii) subsidence;(iii) groundwater level within the region;(iv) recharge capability of a groundwater source;(v) natural run-off rates and drainage; and(vi) water quality;(I) a table summarizing overlapping taxing entities and the most recent tax rates by those entities; and(J) complete justification for creation of the district supported by evidence that the project is feasible, practicable, necessary, will benefit all of the land and residents to be included in the district, and will further the public welfare;(6) a certificate by the central appraisal district indicating the owners and tax valuation of land within the proposed district as reflected on the county tax rolls as of the date of the petition or any amended petition. If the tax rolls do not show the petitioner(s) to be the owners of the majority of value of the land within the proposed district, then the petitioner(s) shall submit to the executive director a certified copy of the deed(s) tracing title from the person(s) listed on the central appraisal district certificate as owners of the land to the petitioner(s) and any additional information required by the executive director necessary to show accurately the ownership of the land to be included in the district;(7) affidavits by those persons desiring appointment by the commission as temporary or initial directors, showing compliance with applicable statutory requirements of qualifications and eligibility for temporary or initial directors, in accordance with TWC, §49.052 and §51.072;(8) if the application includes a request for approval of a fire plan, information meeting the requirements of §293.123 of this title (relating to Application Requirements for Fire Department Plan Approval), except for a certified copy of a district board resolution, references to a district board having adopted a plan, and the additional $100 filing fee; and(9) other information as required by the executive director.(d) Creation applications for TWC, Chapter 54, Municipal Utility Districts, shall contain items listed in subsection (a) of this section and the following:(1) a petition containing the matters required by TWC, §54.014 and §54.015, signed by persons holding title to land representing a total value of more than 50% of the value of all land in the proposed district as indicated by tax rolls of the central appraisal district. The petition shall include the following:(A) name of district;(B) area and boundaries of district described by metes and bounds or lot and block number, if there is a recorded map or plat and survey of the area;(C) necessity for the work;(D) statement of the general nature of work proposed; and(E) statement of estimated cost of project;(2) evidence that the petition was filed with the office of the county clerk of the county(ies) in which the district or portions of the district are located;(3) a map showing the district boundaries in metes and bounds, area, physical culture, and computation sheet for survey closure;(4) a preliminary plan (22 - 24 inches by 36 inches or digital data in electronic format) showing the location of existing facilities including highways, roads, and other improvements, together with the location of proposed utility mains and sizing, general drainage patterns, principal drainage ditches and structures, utility plant sites, recreational areas, commercial and school sites, areas within the 100-year flood plain and 100-year floodway, and any other information pertinent to the project including an inventory of any existing water, wastewater, or drainage facilities;(5) a preliminary engineering report including as appropriate:(A) a description of existing area, conditions, topography, and proposed improvements;(B) land use plan;(C) 100-year flood computations or source of information;(D) existing and projected populations;(E) tentative itemized cost estimates of the proposed capital improvements and itemized cost summary for anticipated bond issue requirement;(F) projected tax rate and water and wastewater rates;(G) an investigation and evaluation of the availability of comparable service from other systems including, but not limited to, water districts, municipalities, and regional authorities;(H) an evaluation of the effect the district and its systems and subsequent development within the district will have on the following:(i) land elevation;(ii) subsidence;(iii) groundwater level within the region;(iv) recharge capability of a groundwater source;(v) natural run-off rates and drainage; and(vi) water quality;(I) a table summarizing overlapping taxing entities and the most recent tax rates by those entities; and(J) complete justification for creation of the district supported by evidence that the project is feasible, practicable, necessary, and will benefit all of the land to be included in the district;(6) a certificate by the central appraisal district indicating the owners and tax valuation of land within the proposed district as reflected on the county tax rolls as of the date of the petition. If the tax rolls do not show the petitioner(s) to be the owners of the majority of value of the land within the proposed district, then the petitioner(s) shall submit to the executive director a certified copy of the deed(s) tracing title from the person(s) listed on the central appraisal district certificate as owners of the land to the petitioner(s) and any additional information required by the executive director necessary to show accurately the ownership of the land to be included in the district;(7) a certified copy of the action of the governing body of any municipality in whose corporate limits or extraterritorial jurisdiction that the proposed district is located, consenting to the creation of the proposed district under TWC, §54.016. For districts to be located in the extraterritorial jurisdiction of any municipality, if the governing body of any such municipality fails or refuses to grant consent, the petitioners must show that the provisions of TWC, §54.016 have been followed;(8) for districts proposed to be created within the corporate boundaries of a municipality, evidence that the city will rebate to the district an equitable portion of city taxes to be derived from the residents of the area proposed to be included in the district if such taxes are used by the city to finance elsewhere in the city services of the type the district proposes to provide. If like services are not to be provided, then an agreement regarding a rebate of city taxes is not necessary. Nothing in this subsection is intended to restrict the contracting authorization provided in Texas Local Government Code, §402.014;(9) affidavits by those persons desiring appointment by the commission as temporary directors, showing compliance with applicable statutory requirements of qualifications and eligibility for temporary directors, in accordance with TWC, §§49.052, 54.022, and 54.102;(10) if the application includes a request for approval of a fire plan, information meeting the requirements of §293.123 of this title, except for a certified copy of a district board resolution, references to a district board having adopted a plan, and the additional $100 filing fee;(11) if the petition within the application includes a request for road powers, information meeting the requirements of §293.202(b) of this title (relating to Application Requirements for Commission Approval); and(12) other data and information as the executive director may require.(e) Creation applications for TWC, Chapter 55, Water Improvement Districts, within two or more counties shall contain items listed in subsection (a) of this section and the following:(1) a petition containing the matters required by TWC, §55.040, signed by persons holding title to more than 50% of all land in the proposed district as indicated by county tax rolls, or by 50 qualified property taxpaying electors. The petition shall include the following:(A) name of district; and(B) area and boundaries of district;(2) a map showing the district boundaries in metes and bounds, area, physical culture, and computation sheet for survey closure;(3) a preliminary plan (22 - 24 inches by 36 inches or digital data in electronic format) showing the location of existing facilities including highways, roads, and other improvements, together with the location of proposed utility mains and sizing, general drainage patterns, principal drainage ditches and structures, utility plant sites, recreational areas, commercial and school sites, areas within the 100-year flood plain and 100-year floodway, and any other information pertinent to the project including an inventory of any existing water, wastewater, or drainage facilities;(4) a preliminary engineering report including as appropriate:(A) a description of existing area, conditions, topography, and proposed improvements;(B) land use plan;(C) 100-year flood computations or source of information;(D) existing and projected populations;(E) tentative itemized cost estimates of the proposed capital improvements and itemized cost summary for anticipated bond issue requirement;(F) projected tax rate and water and wastewater rates;(G) an investigation and evaluation of the availability of comparable service from other systems including, but not limited to, water districts, municipalities, and regional authorities;(H) an evaluation of the effect the district and its systems and subsequent development within the district will have on the following:(i) land elevation;(ii) subsidence;(iii) groundwater level within the region;(iv) recharge capability of a groundwater source;(v) natural run-off rates and drainage; and(vi) water quality;(I) a table summarizing overlapping taxing entities and the most recent tax rates by those entities; and(J) complete justification for creation of the district supported by evidence that the project is practicable, would be a public utility, and would serve a beneficial purpose;(5) a certificate by the central appraisal district indicating the owners and tax valuation of land within the proposed district as reflected on the county tax rolls as of the date of the petition. If the tax rolls do not show the petitioner(s) to be the owners of the majority of the land within the proposed district, then the petitioner(s) shall submit to the executive director a certified copy of the deed(s) tracing title from the person(s) listed on the central appraisal district certificate as owners of the land to the petitioner(s) and any additional information required by the executive director necessary to show accurately the ownership of the land to be included in the district;(6) if the application includes a request for approval of a fire plan, information meeting the requirements of §293.123 of this title, except for a certified copy of a district board resolution, references to a district board having adopted a plan, and the additional $100 filing fee; and(7) other data and information as the executive director may require.(f) Creation applications for TWC, Chapter 58, Irrigation Districts, within two or more counties, shall contain items listed in subsection (a) of this section and the following:(1) a petition containing the matters required by TWC, §58.013 and §58.014, signed by persons holding title to land representing a total value of more than 50% of the value of all land in the proposed district as indicated by county tax rolls, or if there are more than 50 persons holding title to land in the proposed district, the petition can be signed by 50 of them. The petition shall include the following:(A) name of district;(B) area and boundaries;(C) provision of the Texas Constitution under which district will be organized;(D) purpose(s) of district;(E) statement of the general nature of the work to be done and the necessity, feasibility, and utility of the project, with reasonable detail; and(F) statement of the estimated costs of the project;(2) evidence that the petition was filed with the office of the county clerk of the county(ies) in which the district or portions of the district are located;(3) a map showing the district boundaries in metes and bounds, area, physical culture, and computation sheet for survey closure;(4) a preliminary plan (22 - 24 inches by 36 inches or digital data in electronic format) showing as applicable the location of existing facilities including highways, roads, and other improvements, together with the location of proposed irrigation facilities, general drainage patterns, principal drainage ditches and structures, sites, areas within the 100-year flood plain and 100-year floodway, and any other information pertinent to the project;(5) a preliminary engineering report including the following as applicable:(A) a description of existing area, conditions, topography, and proposed improvements;(B) land use plan, including a table showing irrigable and non-irrigable acreage;(C) copies of any agreements, meeting minutes, contracts, or permits executed or in draft form with other entities including, but not limited to, federal, state, or local entities or governments or persons;(D) tentative itemized cost estimates of the proposed capital improvements and itemized cost summary for anticipated bond issue requirement;(E) proposed budget including projected tax rate and/or fee schedule and rates;(F) an investigation and evaluation of the availability of comparable service from other systems including, but not limited to, water districts, municipalities, and regional authorities;(G) an evaluation of the effect the district and its systems will have on the following:(i) land elevation;(ii) subsidence;(iii) groundwater level within the region;(iv) recharge capability of a groundwater source;(v) natural run-off rates and drainage; and(vi) water quality;(H) a table summarizing overlapping taxing entities and the most recent tax rates by those entities; and(I) complete justification for creation of the district supported by evidence that the project is feasible, practicable, necessary, and will benefit all of the land and residents to be included in the district and will further the public welfare;(6) a certificate by the central appraisal district indicating the owners and tax valuation of land within the proposed district as reflected on the county tax rolls as of the date of the petition or any amended petition. If the tax rolls do not show the petitioner(s) to be the owners of the majority of value of the land within the proposed district, then the petitioner(s) shall submit to the executive director a certified copy of the deed(s) tracing title from the person(s) listed on the central appraisal district certificate as owners of the land to the petitioner(s) and any additional information required by the executive director necessary to show accurately the ownership of the land to be included in the district;(7) affidavits by those persons desiring appointment by the commission as temporary or initial directors, showing compliance with applicable statutory requirements of qualifications and eligibility for temporary or initial directors, in accordance with TWC, §58.072; and(8) other data as the executive director may require.(g) Creation applications for TWC, Chapter 59, Regional Districts, shall contain items listed in subsection (a) of this section and the following:(1) a petition, as required by TWC, §59.003, signed by the owner or owners of 2,000 contiguous acres or more; or by the county commissioners court of one, or more than one, county; or by any city whose boundaries or extraterritorial jurisdiction the proposed district lies within; or by 20% of the municipal districts to be included in the district. The petition shall contain:(A) a description of the boundaries by metes and bounds or lot and block number, if there is a recorded map or plat and survey of the area;(B) a statement of the general work, and necessity of the work;(C) estimated costs of the work;(D) name of the petitioner(s);(E) name of the proposed district; and(F) if submitted by at least 20% of the municipal districts to be included in the regional district, such petition shall also include:(i) a description of the territory to be included in the proposed district; and(ii) endorsing resolutions from all municipal districts to be included;(2) evidence that a copy of the petition was filed with the city clerk in each city where the proposed district's boundaries cover in whole or part;(3) if land in the corporate limits or extraterritorial jurisdiction of a city is proposed, documentation of city consent or documentation of having followed the process outlined in TWC, §59.006;(4) a preliminary engineering report including as appropriate:(A) a description of existing area, conditions, topography, and proposed improvements;(B) land use plan;(C) 100-year flood computations or source of information;(D) existing and projected populations;(E) tentative itemized cost estimates of the proposed capital improvements and itemized cost summary for anticipated bond issue requirement;(F) projected tax rate and water and wastewater rates; and(G) an investigation and evaluation of the availability of comparable service from other systems including, but not limited to, water districts, municipalities, and regional authorities;(5) affidavits by those persons desiring appointment by the commission as temporary or initial directors, showing compliance with applicable statutory requirements of qualifications and eligibility for temporary or initial directors, as required by TWC, §49.052 and §59.021;(6) if the application includes a request for approval of a fire plan, information meeting the requirements of §293.123 of this title, except for a certified copy of a district board resolution, references to a district board having adopted a plan, and the additional $100 filing fee; and(7) other information as the executive director may require.(h) Creation applications for TWC, Chapter 65, Special Utility Districts, shall contain items listed in subsection (a) of this section and the following:(1) a certified copy of the resolution requesting creation, as required by TWC, §65.014 and §65.015, signed by the president and secretary of the board of directors of the water supply or sewer service corporation, and stating that the corporation, acting through its board of directors, has found that it is necessary and desirable for the corporation to be converted into a district. The resolution shall include the following:(A) a description of the boundaries of the proposed district by metes and bounds or by lot and block number, if there is a recorded map or plat and survey of the area, or by any other commonly recognized means in a certificate attached to the resolution executed by a licensed engineer;(B) a statement regarding the general nature of the services presently performed and proposed to be provided, and the necessity for the services;(C) name of the district;(D) the names of not less than five and not more than 11 qualified persons to serve as the initial board;(E) a request specifying each purpose for which the proposed district is being created; and(F) if the proposed district also seeks approval of an impact fee, a request for approval of an impact fee and the amount of the requested fee;(2) the legal description accompanying the resolution requesting conversion of a water supply or sewer service corporation, as defined in TWC, §65.001(10), to a special utility district that conforms to the legal description of the service area of the corporation as such service area appears in the certificate of public convenience and necessity held by the corporation. Any area of the corporation that overlaps another entity's certificate of convenience and necessity must be excluded unless the other entity consents in writing to the inclusion of its dually certified area in the district;(3) a plat showing boundaries of the proposed district as described in the petition;(4) a preliminary plan (22 - 24 inches by 36 inches or digital data in electronic format) showing the location of existing facilities including highways, roads, and other improvements, together with the location of proposed utility mains and sizing, general drainage patterns, principal drainage ditches and structures, utility plant sites, recreational areas, commercial and school sites, areas within the 100-year flood plain and 100-year floodway, and any other information pertinent to the project including an inventory of any existing water or wastewater facilities;(5) a preliminary engineering report including the following information unless previously provided to the commission:(A) a description of existing area, conditions, topography, and any proposed improvements;(B) existing and projected populations;(C) for proposed system expansion:(i) tentative itemized cost estimates of any proposed capital improvements and itemized cost summary for any anticipated bond issue requirement; and(ii) an investigation and evaluation of the availability of comparable service from other systems including, but not limited to, water districts, municipalities, and regional authorities;(D) water and wastewater rates;(E) projected water and wastewater rates;(F) an evaluation of the effect the district and its system and subsequent development within the district will have on the following:(i) land elevation;(ii) subsidence;(iii) groundwater level within the region;(iv) recharge capability of a groundwater source;(v) natural run-off rates and drainage; and(vi) water quality; and(G) complete justification for creation of the district supported by evidence that the project is feasible, practicable, necessary, and will benefit all of the land to be included in the district;(6) a certified copy of a certificate of convenience and necessity held by the water supply or sewer service corporation applying for conversion to a special utility district;(7) a certified copy of the most recent financial report prepared by the water supply or sewer service corporation;(8) if requesting approval of an existing capital recovery fee or impact fee, supporting calculations and required documentation regarding such fee;(9) certified copy of resolution and an order canvassing election results, adopted by the water supply or sewer service corporation, which shows:(A) an affirmative vote of a majority of the membership to authorize conversion to a special utility district operating under TWC, Chapter 65; and(B) a vote by the membership in accordance with the requirements of TWC, Chapter 67, and the Texas Non-Profit Corporation Act, Texas Civil Statutes, Articles 1396-1.01 to 1396-11.01, to dissolve the water supply or sewer service corporation at such time as creation of the special utility district is approved by the commission and convey all the assets and debts of the corporation to the special utility district upon dissolution;(10) affidavits by those persons named in the resolution for appointment by the commission as initial directors, showing compliance with applicable statutory requirements of qualifications and eligibility for temporary or initial directors, in accordance with TWC, §49.052 and §65.102, where applicable;(11) if the application includes a request for approval of a fire plan, information meeting the requirements of §293.123 of this title, except for a certified copy of a district board resolution, references to a district board having adopted a plan, and the additional $100 filing fee; and(12) other information as the executive director requires.(i) Creation applications for TWC, Chapter 66, Stormwater Control Districts, shall contain items listed in subsection (a) or this section and the following:(1) a petition as required by TWC, §§66.014 - 66.016, requesting creation of a storm water control district signed by at least 50 persons who reside within the boundaries of the proposed district or signed by a majority of the members of the county commissioners court in each county or counties in which the district is proposed. The petition shall include the following:(A) a boundary description by metes and bounds or lot and block number if there is a recorded map or plat and survey;(B) a statement of the general nature of the work proposed and an estimated cost of the work proposed; and(C) the proposed name of the district;(2) a map showing the district boundaries in metes and bounds, area, physical culture, and computation sheet for survey closure;(3) a preliminary engineering report including:(A) a description of the existing area, conditions, topography, and proposed improvements;(B) preliminary itemized cost estimate for the proposed improvements and associated plans for financing such improvements;(C) a listing of other entities capable of providing same or similar services and reasons why those are unable to provide such services;(D) copies of any agreements, meeting minutes, contracts, or permits executed or in draft form with other entities including, but not limited to, federal, state, or local entities or governments or persons;(E) an evaluation of the effect the district and its projects will have on the following:(i) land elevations;(ii) subsidence/groundwater level and recharge;(iii) natural run-off rates and drainage; and(iv) water quality;(F) a table summarizing overlapping taxing entities and the most recent tax rates by those entities; and(G) complete justification for creation of the district supported by evidence that the project is feasible, practical, necessary, and will benefit all the land to be included in the district;(4) affidavits by those persons desiring appointment by the commission as temporary or initial directors, showing compliance with applicable statutory requirements of qualifications and eligibility for temporary or initial directors, in accordance with TWC, §49.052 and §66.102, where applicable; and(5) other data as the executive director may require.(j) Creation applications for Texas Local Government Code, Chapter 375, Municipal Management Districts in General, shall contain the items listed in subsection (a) of this section and the following:(1) a petition requesting creation signed by owners of a majority of the assessed value of real property in the proposed district that would be subject to assessment by the district. The petition shall include the following:(A) a boundary description by metes and bounds, by verifiable landmarks, including a road, creek, or railroad line, or by lot and block number if there is a recorded map or plat and survey;(B) purpose(s) for which district is being created;(C) general nature of the work, projects or services proposed to be provided, the necessity for those services, and an estimate of the costs associated with such;(D) name of proposed district, which must be generally descriptive of the location of the district, followed by "Management District" or "Improvement District;"(E) list of proposed initial directors and experience and term of each; and(F) a resolution of municipality in support of creation;(2) a preliminary plan or report providing sufficient details on the purpose and projects of district as allowed in Texas Local Government Code, Chapter 375, including budget, statement of expenses, revenues, and sources of such revenues;(3) a certificate by the central appraisal district indicating the owners and tax valuation of land within the proposed district as reflected on the county tax rolls as of the date of the petition or any amended petition. If the tax rolls do not show the petitioner(s) to be the owners of the majority of value of the land within the proposed district, then the petitioner(s) shall submit to the executive director a certified copy of the deed(s) tracing title from the person(s) listed on the central appraisal district certificate as owners of the land to the petitioner(s) and any additional information required by the executive director necessary to show accurately the ownership of the land to be included in the district;(4) affidavits by those persons desiring appointment by the commission as initial directors, showing compliance with applicable statutory requirements of qualifications and eligibility for initial directors, in accordance with Texas Local Government Code, §375.063; and(5) if the application includes a request for approval of a fire plan, information meeting the requirements of §293.123 of this title, except for a certified copy of a district board resolution, references to a district board having adopted a plan, and the additional $100 filing fee.</content><note type="source"><p>Source Note: The provisions of this §293.11 adopted to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective September 14, 2000, 25 TexReg 8955; amended to be effective October 6, 2002, 27 TexReg 9365; amended to be effective May 5, 2005, 30 TexReg 2533; amended to be effective October 26, 2006, 31 TexReg 8699; amended to be effective July 31, 2008, 33 TexReg 5936; amended to be effective April 21, 2013, 38 TexReg 2372; amended to be effective January 3, 2019, 43 TexReg 8628; amended to be effective October 29, 2020, 45 TexReg 7593.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scB/s293.12"><num value="293.12">§293.12</num><heading>Creation Notice Actions and Requirements</heading><content>(a) On receipt by the executive director of all required documentation associated with an application for creation of a district by the commission in accordance with Texas Water Code (TWC), Chapter 51, multi-county Water Control and Improvement Districts or single-county Water Control and Improvement Districts requesting additional powers; Chapter 54, Municipal Utility Districts; Chapter 55, Water Improvement Districts; Chapter 58, multi-county Irrigation Districts; Chapter 59, Regional Districts; Chapter 65, Special Utility Districts; and Chapter 66, Stormwater Control Districts, the executive director shall notify the chief clerk that the application is administratively complete.(b) For those applications described in subsection (a) of this section, the chief clerk shall send a copy of a notice to the applicant indicating that an application has been received and notifying interested persons of the procedures for requesting a public hearing. The applicant shall cause the notice to be published as follows:(1) notice must be published once a week for two consecutive weeks in a newspaper regularly published or circulated in the county or counties where the district is proposed to be located with the last publication not later than the 30th day before the date on which the commission may act on the application; and(2) not later than the 30th day before the date on which the commission may act on the application, the notice must be posted on the bulletin board used for posting legal notices in each county in which all or part of the proposed district is to be located.(c) For those applications described in subsection (a) of this section, the commission may act on an application without holding a public hearing if a public hearing is not requested by the commission, the executive director, or an affected person in the manner prescribed by commission rule during the 30 days following the final publication of notice under this section. If the commission determines that a public hearing is necessary, the chief clerk shall advise all parties of the time and place of the hearing. The commission is not required to provide public notice of a hearing under this subsection.(d) For a petition for the creation of a Special Utility District in accordance with TWC, Chapter 65, which includes transfer of the certificate of public convenience and necessity, the applicant shall also, unless waived by executive director, mail copies of the notice to customers of the water supply corporation and other affected parties at least 120 days prior to approval. Such notice shall include the following:(1) name and business address of the district;(2) a description of the service area involved;(3) the anticipated effect of the conversion on the operation or the rates and services provided to customers; and(4) a statement that if a hearing is granted, persons may attend the hearing and participate in the process.(e) If a petition for the creation of a Special Utility District in accordance with TWC, Chapter 65, contains a request for approval of an impact fee, the applicant shall comply with the notice provisions of §293.173 of this title (relating to Impact Fee Notice Actions and Requirements).(f) Regardless of whether a public hearing is held or not, for an application for creation of a Special Utility District in accordance with TWC, Chapter 65, the commission may only consider a purpose for which the district is being created that is specified in the resolution.(g) The hearing action and notice requirements for Local Government Code, Chapter 375, Municipal Management Districts In General, are as follows.(1) The chief clerk shall send a copy of the notice of hearing to all counties in which the proposed district is located and all municipalities which have extraterritorial jurisdiction in the county or counties in which the proposed district is located and which have formally requested notice of creation of all districts in their county or counties. The chief clerk shall prepare a certificate indicating that notice was properly mailed to any such counties and/or municipalities.(2) The chief clerk shall send a copy of the notice of hearing to the petitioners, or their agents, who shall:(A) cause the notice to be published in a newspaper with general circulation in the municipality in which the proposed district is located once a week for two consecutive weeks with the first publication being at least 31 days prior to the date of the commission hearing;(B) send the notice of the hearing by certified mail, return receipt requested, to all property owners within the district at least 30 days before the hearing.(h) Upon receipt of a petition to create a district under TWC, Chapter 54, all of which is to be located outside the corporate limits of a municipality, the executive director shall notify the commissioners court of any county in which the proposed district is to be located that the petition has been filed.</content><note type="source"><p>Source Note: The provisions of this §293.12 adopted to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective September 14, 2000, 25 TexReg 8955; amended to be effective August 29, 2002, 27 TexReg 7942; amended to be effective October 26, 2006, 31 TexReg 8699; amended to be effective November 13, 2014, 39 TexReg 8730.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scB/s293.13"><num value="293.13">§293.13</num><heading>Commission Actions Following Consideration of Creation Application</heading><content>(a) If the commission finds that the petition does not conform to the requirements of the applicable statutes the commission shall deny the petition. With respect to regional plan implementation agencies, the commission will consider the regional plan submitted with the petition in connection with its findings.(b) If the commission grants the petition for creation:(1) the commission shall issue an order including a finding that the project meets applicable statutory requirements;(2) if the commission finds that any of the lands to be included in the district will not be benefited by the creation of the district, the commission shall exclude the lands not to be benefited and shall redefine the boundaries of the proposed district to include only those lands that will receive benefits from the district;(3) the commission shall appoint directors as provided in applicable statutes, who shall serve until permanent directors are elected and qualified.(c) A copy of the order of the commission granting or denying the petition shall be mailed by the chief clerk to each city having extraterritorial jurisdiction and/or to each county.</content><note type="source"><p>Source Note: The provisions of this §293.13 adopted to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scB/s293.14"><num value="293.14">§293.14</num><heading>District Reporting Actions Following Creation</heading><content>(a) A certified copy of the order canvassing results of the confirmation election shall be recorded in the office of the county clerk of each county in which a portion of the district lies and shall be submitted to the executive director not later than the 30th day after the date of the election in accordance with Texas Water Code (TWC), §49.102(e) and (f).(b) The governing board of the district shall submit to the executive director the information required by §293.92 of this title (relating to Additional Reports and Information Required of Certain Districts) and a certificate from the county clerk of each county in which all or part of the district is located showing compliance with TWC, §49.455. The certificate shall show on its face the date of the confirmation election, and the date that the information required by TWC, §49.455, was filed with the county clerk(s).</content><note type="source"><p>Source Note: The provisions of this §293.14 adopted to be effective October 22, 1996, 21 TexReg 9905; amended to be effective October 29, 2020, 45 TexReg 7593.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scB/s293.15"><num value="293.15">§293.15</num><heading>Addition of Wastewater and/or Drainage Powers and Conversion of Districts into Municipal Utility Districts</heading><content>(a) Any water improvement district, water control and improvement district, fresh water supply district, levee improvement district, irrigation district or any other conservation and reclamation district or any special utility district created under the Texas Constitution, Article XVI, §59, may be converted into a municipal utility district operating under the Texas Water Code (TWC), Chapter 54.(b) The application for the conversion of a district shall be accompanied by the following:(1) a certified copy of the resolution adopted by the board of directors in accordance with TWC, §54.030(b) as amended by House Bill (HB) 2914, 86th Texas Legislature, 2019 and §54.030(d). The resolution required by this paragraph may be submitted after the hearing required by TWC, §54.030(b) as amended by HB 2590, 86th Texas Legislature, 2019;(2) a $700 application fee;(3) unless waived by the executive director, a preliminary plan (22 - 24 inches by 36 inches or digital data in electronic format) showing the location of existing facilities including highways, roads, and other improvements together with the location of proposed utility mains and sizing, general drainage patterns, principal drainage ditches and structures, utility plant sites, recreational areas, commercial and school sites, areas within the 100-year flood plain, and any other information pertinent to the project;(4) unless waived by the executive director, a preliminary engineering report including:(A) a description of existing area, conditions, topography, and proposed improvements;(B) land use plan;(C) 100-year flood computations or source of information;(D) existing and projected populations;(E) tentative itemized cost estimates of the proposed capital improvements, if any and itemized cost summary for anticipated bond issue requirements;(F) projected tax rate and water and wastewater rates; and(G) total tax assessments on all land within the district; and(5) other data and information as the executive director may require.(c) Prior to commission action on the application for conversion the following requirements shall be met with evidence of such compliance filed with the chief clerk:(1) Notice of the conversion application filed with the commission shall be given by publishing notice in a newspaper with general circulation in the county or counties in which the district is located. The notice shall be published once a week for two consecutive weeks. The notice shall:(A) set out the resolution provided in subsection (b)(1) of this section in full; and(B) notify all interested persons how they may offer comments to the commission for or against the proposal contained in the resolution.(2) Notice of the hearing to be conducted by the district's board as required by TWC, §54.030(b) as amended by HB 2590, shall be given by publishing notice of the hearing in a newspaper with general circulation in the district. The notice shall be published once a week for two consecutive weeks. The notice shall:(A) set out the resolution adopted by the district in full; and(B) notify all interested persons how they may offer comments to the district's board for or against the proposal contained in the resolution.(3) The district shall file its resolution requesting conversion with the city secretary or clerk of each city, in whose corporate limits or extraterritorial jurisdiction any part of the district is located, concurrently with submitting its application for conversion to the commission.(d) After the hearing required by TWC, §54.030(b) as amended by HB 2590, the resolution required by TWC, §54.030(d) shall be filed with the commission and mailed to each state senator and representative who represents the area in which the district is located.(e) A special utility district formed pursuant to the TWC, Chapter 65, which applies for conversion to a district having taxing authority that provides water, wastewater, or other public utility services, must comply with the requirements of Texas Local Government Code, §42.042.(f) Any water improvement district, water control and improvement district, fresh water supply district, levee improvement district, irrigation district, or any other conservation and reclamation district or any special utility district created under the Texas Constitution, Article XVI, §59, may obtain additional wastewater and/or drainage powers.(g) The application for the addition of wastewater and/or drainage powers shall be accompanied by the following:(1) a certified copy of the resolution adopted by the board of directors requesting the commission to hold a hearing on the question of the addition of wastewater and/or drainage powers for the district;(2) a $700 application fee;(3) unless waived by the executive director, a preliminary plan (22 - 24 inches by 36 inches or digital data in electronic format) showing the location of existing facilities including highways, roads, and other improvements together with the location of proposed utility mains and sizing, general drainage patterns, principal drainage ditches and structures, utility plant sites, recreational areas, commercial and school sites, areas within the 100-year flood plain, and any other information pertinent to the project;(4) unless waived by the executive director, a preliminary engineering report including:(A) a description of existing area, conditions, topography, and proposed improvements;(B) land use plan;(C) 100-year flood computations or source of information;(D) existing and projected populations;(E) tentative itemized cost estimates of the proposed capital improvements, if any and itemized cost summary for anticipated bond issue requirements;(F) projected tax rate and water and wastewater rates; and(G) total tax assessments on all land within the district; and(5) other data and information as the executive director may require.(h) Prior to the hearing for the addition of wastewater and/or drainage powers, the following requirements shall be met with evidence of such compliance filed with the chief clerk at or prior to the hearing:(1) Notice of the hearing in a form issued by the chief clerk shall be given by publishing notice in a newspaper with general circulation in the county or counties in which the district is located. The notice shall be published once a week for two consecutive weeks with the first publication to be made not less than 14 days before the time set for the hearing. The notice shall:(A) state the time and place of the hearing;(B) set out the resolution adopted by the district in full; and(C) notify all interested persons to appear and offer testimony for or against the proposed contained in the resolution.(2) The district shall file its resolution requesting additional powers with the city secretary or clerk of each city, in whose corporate limits or extraterritorial jurisdiction any part of the district is located, concurrently with submitting its application to the commission.</content><note type="source"><p>Source Note: The provisions of this §293.15 adopted to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective October 29, 2020, 45 TexReg 7593.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scC"><num value="C">SUBCHAPTER C</num><heading>SPECIAL REQUIREMENTS FOR GROUNDWATER CONSERVATION DISTRICTS</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scC/s293.17"><num value="293.17">§293.17</num><heading>Purpose</heading><content>The purpose of this subchapter is to provide the processes and requirements related to Texas Water Code (TWC), Chapter 36, Groundwater Conservation Districts. The use of the term "district" in this subchapter means groundwater conservation district (GCD) unless the context clearly indicates otherwise. This subchapter provides:(1) procedures for commission certification of landowner petitions for the creation of GCDs filed under TWC, §36.013;(2) procedures for the commission, on its own motion, to create GCDs under TWC, §36.0151, in priority groundwater management areas (PGMAs) designated after September 1, 2001;(3) procedures for the commission, on its own motion, to create GCDs in PGMAs designated before September 1, 2001; and(4) procedures for commission review of GCD management plan noncompliance and petitions for inquiry under TWC, Chapter 36, Subchapter I.</content><note type="source"><p>Source Note: The provisions of this §293.17 adopted to be effective August 29, 2002, 27 TexReg 7942; amended to be effective May 19, 2016, 41 TexReg 3506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scC/s293.18"><num value="293.18">§293.18</num><heading>Creation of a Groundwater Conservation District in a Groundwater Management Area</heading><content>(a) Groundwater conservation district creation landowner submittal. An original and one copy of the complete groundwater conservation district (GCD) creation submittal shall be filed with the executive director on behalf of a group of landowners as provided in subsection (b) of this section and shall contain a petition as described in subsection (b) of this section, supporting information as described in subsection (c) of this section, the name and address of a representative designated by the group of landowners for contact purposes, and a $700 non-refundable submittal fee at the time the petition is filed.(b) Groundwater conservation district petition. A complete district creation petition must be signed by the majority of the landowners in the proposed district or, if there are more than 50 landowners, at least 50 of those landowners. A complete petition must include the following:(1) the name of the proposed GCD;(2) the area and boundaries of the proposed district, including a map generally outlining the boundaries of the proposed district;(3) the purpose or purposes of the proposed district;(4) if any proposed projects are to be funded by the issuance of bonds or notes, a statement of the general nature of the projects proposed to be undertaken by the proposed district, the necessity and feasibility of the work, and the estimated cost of those projects according to the petitioners;(5) the names of at least five individuals qualified to serve as temporary directors; and(6) financial information, including the projected maintenance tax or production fee rate and a proposed budget of revenues and expenses for the proposed district.(c) Supporting information. As part of the GCD creation submittal, the petitioners must include the following information.(1) The petitioners must submit the following information about the area and boundaries of the proposed district:(A) a metes and bounds description of the proposed boundaries of the proposed district if those boundaries differ from a political subdivision boundary which existed on the date the petition was submitted;(B) a vicinity map outlining the boundaries of the proposed district which is 22 inches by 36 inches in size at a minimum, or in a digital data electronic format showing as appropriate the location of municipalities, highways, roads, surface water features, and other water districts, together with the areal extent of groundwater aquifers, and showing the location of recharge (i.e., outcrops of aquifer units, karst features, etc.) and Texas Water Development Board (TWDB) located discharge (i.e., seeps, springs, etc.) features identified with state well number, the downdip limits of usable quality groundwater, and any other information the petitioners believe is pertinent to the creation of the proposed district; and(C) an evaluation and description of how the boundaries of the proposed district will provide for effective management of the groundwater resources within the proposed district and in the GMA.(2) If the petitioners propose projects that are to be funded by the issuance of bonds or notes, the petitioners must submit an evaluation of the general nature of the proposed projects to be undertaken by the district, the necessity and feasibility of the work, and the estimated cost of those projects according to the petitioners.(3) The petitioners must submit affidavits from the individuals named in the petition under subsection (b)(5) of this section, establishing that these individuals are qualified to serve as temporary directors according to Texas Water Code (TWC), §§36.051(b), 36.058, and 36.059(b).(4) The petitioners must submit financial information that includes the projected maintenance tax rate or production fee rate and a proposed budget of revenues and expenses for the proposed district, and a listing of current tax assessments within the boundaries of the proposed district.(A) If the petitioners propose to finance the district through maintenance taxes, the petitioners must provide a certification by the central appraisal district(s) within the proposed district which indicates the total tax valuation of all land within the proposed district, as reflected on the current county tax rolls. The petitioners must evaluate the projected maintenance tax rate for the proposed district with the total tax valuation and describe how this revenue source will support the proposed budget of expenses.(B) If the petitioners propose to finance the district through well production fees, the petitioners must provide the estimated non-exempt groundwater usage, by type, for the proposed district. The petitioners must evaluate the projected production fee rate for the proposed district with the total non-exempt groundwater usage, by type, and describe how this revenue source will support the proposed budget of expenses.(5) The petitioners must provide a certification by the central appraisal district(s) within the proposed district which indicates that the petitioners are landowners within the proposed district on the date the petition is submitted.(A) If the tax rolls do not show the petitioners to be the majority of the landowners within the proposed district, then the petitioners shall submit to the executive director a certified copy of the deed(s) tracing title from the person(s) listed on the county tax rolls to establish that the petitioners comprise the majority of the landowners or that at least 50 of the petitioners are landowners in the proposed district.(B) The executive director may request any additional information to accurately show the ownership of the land to be included in the proposed district.(6) The petitioners must provide one contact person for all correspondence from the executive director regarding the petition.(7) The petitioners must provide a signed statement by the appropriate county clerk or city secretary that a copy of the petition for creation of the proposed district was received by each county in whole or in part within the proposed district and by each city in whose corporate limits any part of the proposed district is located.(8) Concurrent with filing the petition and supporting information with the executive director, the petitioners shall make a copy or copies of the petition and supporting information available for public inspection during regular business hours at a centralized location or locations in each county in whole or in part within the proposed district. The petitioners must provide the address and contact information for each location where the petition and supporting information have been made available for public inspection.(9) The executive director may request any other related information as needed to process the district creation petition.(d) Petition review. The executive director's review of a petition for the creation of a GCD shall be governed by this subsection.(1) Within 20 working days of receipt, the executive director shall assign the petition a number and determine if the submittal complies with the requirements in subsection (a) of this section.(A) If a submittal is not complete, the executive director shall notify the petition contact person of the deficiencies of the submittal via certified mail postmarked no later than 20 working days after the submittal was received.(B) If the petitioners submit additional information within 20 working days of the date of the notice of deficiencies, the executive director shall evaluate the information within 15 working days and, where applicable, shall determine if the submittal complies with subsection (a) of this section.(C) If the petitioners do not submit the required information within 20 working days of the date of the notice of deficiencies, the executive director shall return the incomplete submittal to the petitioners, and the submittal fee is forfeited.(2) If a petition proposes the creation of a GCD in an area, in whole or in part, that has not been designated as a GMA, the executive director shall provide notice to the petitioners and to the executive administrator of the TWDB. The commission may not certify the petition until the TWDB has adopted a rule designating a GMA that is coterminous with or includes the boundaries of the proposed district.(e) Notice and public meeting.(1) If the executive director determines that the submittal is complete, the executive director shall prepare a public notice for publishing or mailing. The public notice shall:(A) state that the commission has received a complete submittal for the proposed creation of a GCD;(B) provide notice of the date, time, and location of a public meeting to receive comments on the petition to create the district;(C) provide notice of availability of the petition and supporting information as established by the petitioners under subsection (c)(8) of this section and at any other location deemed appropriate by the executive director; and(D) provide a general map of the proposed district if the area is not a recognizable political subdivision boundary.(2) The executive director shall notify the chief clerk that the submittal is complete and shall forward the draft public notice and a mailing list of water stakeholders to the chief clerk. The water stakeholders shall include the governing body of each county, regional water planning group, adjacent GCD, municipality, river authority, water district, or other entity that supplies public drinking water, including each holder of a certificate of convenience and necessity issued by the commission and each irrigation district located either in whole or in part in the proposed district.(3) The chief clerk shall mail the notice to the water stakeholders indicating that the petition for the creation of a GCD has been received.(4) The chief clerk shall mail the notice to the petitioners with instructions for publishing the notice.(5) The petitioners shall publish notice once a week for two consecutive weeks in one or more newspapers of general circulation in the area of the proposed district. The last publication shall be no later than 30 days before the public meeting. The petitioners must provide proof of publication by publishers affidavit to the chief clerk no later than one week prior to the public meeting.(6) The petitioners shall post the notice on the bulletin board used for posting legal notices in each county in which all or part of the proposed district is located no later than ten days before the public meeting. The petitioners must provide proof of the posting to the chief clerk no later than one week prior to the public meeting.(7) The commission or the executive director shall conduct the public meeting on the petition in a central location within the area of the proposed district. The public meeting shall be held no later than 60 days after the date the chief clerk mailed notice to the petitioners.(f) Executive director actions. Following the public meeting, the executive director shall file recommendations regarding certification of the petition and the appointment of temporary directors with the chief clerk. The executive director shall summarize the public meeting comments and make a recommendation to the commission on whether the petition is administratively complete and should be certified.(g) Commission actions. Not later than 90 days after the date of the public meeting, the commission shall certify the petition as administratively complete. A petition is administratively complete if it complies with the requirements of TWC, §36.013(b) and (c), and subsection (a) of this section.(1) If the commission certifies the petition as administratively complete, the commission shall issue an order stating that the petition is administratively complete, creating the district, and appointing the temporary directors named in the petition.(2) The commission shall appoint temporary directors according to §§293.31 - 293.35 of this title (relating to Appointment of Directors; Qualifications of Directors; Commission Appointment of Directors to Fill Vacancies; Form of Affidavit for Appointment as Director; and Reinstatement of a Board Member).(A) If a temporary director appointed by the commission fails to qualify, or if a vacancy occurs in the office of temporary director, the commission shall appoint an individual to fill the vacancy.(B) Temporary directors appointed under this paragraph serve until the initial directors are elected and have qualified for office or until the voters fail to approve creation of the district.(3) The commission may not certify a petition if the commission finds that:(A) the proposed district cannot be adequately funded to finance required or authorized groundwater management planning, regulatory, and district-operation functions under TWC, Chapter 36 based on the financial information provided by the petitioners; or(B) the boundaries of the proposed district do not provide for the effective management of the groundwater resources.(4) The commission may alter the boundaries if such boundaries would facilitate district creation and confirmation and may also alter boundaries to provide for more effective management of groundwater resources. The commission may give preference to boundaries that are coterminous with those of a GMA and may also consider boundaries along existing political subdivision boundaries.(5) If the commission does not certify the petition, the executive director shall provide to the petitioners in writing the reasons for not certifying the petition. The petitioners may resubmit the petition, without paying an additional fee, if the petition is resubmitted within 90 days after the date the executive director provides the notice. The resubmitted petition will be treated as a new GCD creation submittal.</content><note type="source"><p>Source Note: The provisions of this §293.18 adopted to be effective August 29, 2002, 27 TexReg 7942.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scC/s293.19"><num value="293.19">§293.19</num><heading>Commission-Initiated Creation of a Groundwater Conservation District in a Priority Groundwater Management Area</heading><content>(a) In priority groundwater management areas (PGMAs) designated after September 1, 2001 under §294.42 of this title (relating to Commission Action Concerning PGMA Designation), where no groundwater conservation district (GCD) has been created, the executive director shall, after identifying the applicable areas under §294.43(d) and (e) of this title (relating to Actions Required After PGMA Designation), recommend district creation for commission action.(1) The recommendation shall be based on and consistent with the commission's designation order under §294.42 of this title. The executive director's recommendation, in the form of a proposed order, must provide for the purpose, boundary description, minimum financing, and the number of temporary directors for each county for the district.(2) The executive director's proposed order shall be filed with the chief clerk for commission consideration. The executive director shall prepare a notice and include a mailing list of:(A) water stakeholders that include the governing body of each county, regional water planning group, adjacent GCD, municipality, river authority, water district, or other entity that supplies public drinking water, including each holder of a certificate of convenience and necessity issued by the commission and each irrigation district located either in whole or in part in the proposed district; and(B) any other persons identified in the PGMA designation hearing.(3) The chief clerk shall give notice of the executive director's recommendation and proposed order and the date of the agenda when the commission will act on the district creation to the water stakeholders and other persons identified in the PGMA designation hearing. The commission shall not hold an evidentiary hearing on the district creation.(b) In PGMAs designated before September 1, 2001, the executive director, after identifying the areas in the PGMA that have not created a district, shall petition the commission for the creation of a district by preparing a report and filing the report with the chief clerk.(1) The report shall identify the areas not included in a district and evaluate and recommend whether one or more districts should be created in the identified areas, whether the identified areas should be added to an existing district, or whether a combination of these actions should be taken.(2) The report shall include the following:(A) the purpose or purposes of the recommended district creation action or actions;(B) the name of the recommended district or districts or the name of the existing district if the recommendation is to add the identified areas to an existing district;(C) the area and boundaries of the recommended district or districts or the recommended area to be added to an existing district, including a map generally outlining the boundaries;(D) the number of temporary directors for each county in the recommended district or districts; and(E) the feasibility and practicability of the recommended district creation action.(3) The executive director shall prepare a mailing list of water stakeholders including the governing body of each county, regional water planning group, adjacent GCD, municipality, river authority, water district, or other entity that supplies public drinking water, including each holder of a certificate of convenience and necessity issued by the commission and each irrigation district located either in whole or in part in the identified areas.(4) The executive director shall prepare a public notice for publishing and mailing. The public notice shall:(A) state that the commission has been petitioned by the executive director to create a GCD;(B) provide notice of the date, time, and location of a contested case hearing to receive evidence on the petition;(C) provide notice of the availability of the petition and supporting information; and(D) provide a general map of the proposed district if the area is not a recognizable political subdivision boundary.(5) On receipt of the report and notice, the chief clerk shall:(A) mail notice of the petition to the water stakeholders identified in the executive director's mailing list; and(B) publish notice in one or more newspapers of general circulation in the area of the proposed district.(6) The commission, or the executive director on behalf of the commission, shall refer the petition to SOAH for a contested case hearing on the executive director's report and recommendation.(7) The hearing shall be limited to consideration of the executive director's report and recommendation. The administrative law judge may also consider other district creation options evaluated in the executive director's report. To determine the feasibility and practicability of the recommended district creation action, the administrative law judge shall consider:(A) whether the recommended district creation action can effectively manage groundwater resources under the authorities provided in Texas Water Code (TWC), Chapter 36;(B) whether the boundaries of the recommended district creation action provide for the effective management of groundwater resources; and(C) whether the recommended district creation action can be adequately funded to finance required or authorized groundwater management planning, regulatory, and district operation functions under TWC, Chapter 36.(8) The administrative law judge shall at the conclusion of the hearing, issue a proposal for decision stating findings, conclusions, and recommendations. The administrative law judge shall file these findings and conclusions with the chief clerk with a request for the petition be set for commission consideration.(c) If the commission finds the creation of the district or districts is feasible and practicable, it shall issue an order creating the district or districts. The order shall include the purpose of the district, boundary description, minimum maintenance tax or production fee necessary to support the district, and the number of temporary directors for each county in the district according to TWC, §36.0161. The commission order shall direct the commissioners court of the county or counties that are within the district to appoint temporary directors. The commission order shall direct the temporary directors to call and schedule an election to authorize the district to assess taxes and to elect permanent directors.(1) The commissioners court of the county or counties within the district shall, within 90 days after receiving notification from the commission, appoint temporary directors for the district and notify the commission of the appointments. The commissioners court shall not make any appointments after the expiration of the 90-day period. If fewer temporary directors have been appointed at the expiration of the period than required, the commission shall appoint the additional directors.(2) If the district contains two or more counties, the commission shall apportion the number of temporary directors to each county based on each county's proportionate amount, to the nearest whole number, of the total estimated groundwater use within the district. The total estimated groundwater usage within the district for each county shall be based on information and data contained in the most current version of the Texas State Water Plan as adopted by the Texas Water Development Board and other information developed under §294.41 of this title (relating to Priority Groundwater Management Area Identification, Study, and Executive Director's Report Concerning Designation).(3) If a temporary director appointed by the commissioners court fails to qualify according to TWC, §§36.051(b), 36.058, and 36.059(b), or if a vacancy occurs in the office of temporary director, the commissioners court shall appoint an individual to fill the vacancy.(4) Temporary directors appointed under this subsection shall serve until the initial directors are elected and have qualified for office.(d) If the commission finds the areas identified in the report provided by subsection (b)(1) of this section should be added to an existing district, the commission shall issue an order recommending the addition of the identified areas to the existing district. The commission and the executive director shall follow the procedures provided under §294.44 of this title (relating to Adding a PGMA to an Existing Groundwater Conservation District).</content><note type="source"><p>Source Note: The provisions of this §293.19 adopted to be effective August 29, 2002, 27 TexReg 7942; amended to be effective August 16, 2012, 37 TexReg 6060.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scC/s293.20"><num value="293.20">§293.20</num><heading>Records and Reporting</heading><content>(a) Each groundwater conservation district created according to Texas Water Code (TWC), Chapter 36 shall comply with the statute. Districts created by special acts of the Texas Legislature must comply with all statutory requirements contained in the special act and with the provisions of TWC, Chapter 36 that do not conflict with the special act.(b) Districts are required to submit to the executive director the following documents:(1) a certified copy of the legislative act creating the district within 60 days after the district is created;(2) a certified copy of the order of the district's board of directors canvassing the confirmation election and declaring the confirmation election results according to TWC, §36.017(e);(3) a certified copy of the order of the district's board of directors changing the boundaries of the district, a metes and bounds description of the boundary change, and a detailed map showing the boundary change within 60 days after the date of any boundary change; and(4) a written notification to the executive director of the name, mailing address, and date of expiration of term of office of any elected or appointed director within 30 days after the date of the election or appointment according to TWC, §36.054(e).(c) A district is required under TWC, §36.1071 to adopt a management plan and adopt rules that are necessary to implement the management plan. In accordance with TWC, §36.1072, the management plan must be adopted by the district and submitted to the executive administrator of the Texas Water Development Board within three years of either the effective date of creation of the district or the date the district was confirmed by election if an election was required. The management plan is subject to approval by the executive administrator of the Texas Water Development Board or the Texas Water Development Board upon appeal. After approval, each district must readopt and resubmit the management plan to the executive administrator of the Texas Water Development Board at least once every five years.(1) Within 60 days of approval of its management plan, a district must send a copy of its approved management plan to the regional water planning group or groups for the planning region or regions in which the district is located. The district shall maintain records of the correspondence.(2) Within 60 days of approval of its management plan, a district must forward a copy of its approved management plan to the other districts wholly or partially located in the same groundwater management area or areas. The district shall maintain records of the correspondence.(d) Each district shall provide copies of district documentation or records upon request of the executive director to determine compliance with statutory provisions related to noncompliance review under TWC, Chapter 36, Subchapter I and §293.22 of this title (relating to Noncompliance Review and Commission Action), and TWC, §36.3011, and §293.23 of this title (relating to Petition Requesting Commission Inquiry).(e) Each district shall provide copies of district documentation or records upon request of the executive director to determine compliance with statutory provisions.</content><note type="source"><p>Source Note: The provisions of this §293.20 adopted to be effective August 29, 2002, 27 TexReg 7942; amended to be effective October 26, 2006, 31 TexReg 8699; amended to be effective August 16, 2012, 37 TexReg 6060; amended to be effective May 19, 2016, 41 TexReg 3506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scC/s293.21"><num value="293.21">§293.21</num><heading>Expansion of an Existing Groundwater Conservation District's Management Authority</heading><content>(a) Any groundwater conservation district created by the commission under Texas Water Code (TWC), Chapter 36, to manage a specific groundwater resource may expand its authority to manage other water-bearing formations which are within its territorial boundaries by filing a petition with the commission to amend the order creating the district.(b) The petition to amend the order creating the district shall describe which water-bearing formations are being proposed for management, specifically addressing the following criteria:(1) identify the new water-bearing formation which is the subject of the petition and its areal extent within the district, including a map if different from the boundaries of the district;(2) evaluate and describe how expanding the district's authority to manage the other water-bearing formations will provide for the effective management of groundwater resources in the district;(3) identify the nature of projects and management issues to be undertaken to address concerns of the water-bearing formation, including necessity and feasibility of the work.(c) If a confirmation election has been held in the territorial boundaries of the district, no further confirmation election is necessary to add these water-bearing formations to the district.(d) The notice and public meeting provisions of §293.18(e) of this title (relating to Notice and Public Meeting) shall be followed to add a water-bearing formation to an existing district.(e) The executive director shall summarize the public meeting comments and file recommendations regarding the petition with the chief clerk.(f) Not later than 90 days after the date of the public meeting, the commission shall issue an order either authorizing the district to manage the other water-bearing formations or denying the petition if the commission finds that authorizing the district to manage the other water-bearing formations would not provide for the effective management of the groundwater resources. The executive director shall provide a copy of the order to the petitioners.</content><note type="source"><p>Source Note: The provisions of this §293.21 adopted to be effective August 29, 2002, 27 TexReg 7942.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scC/s293.22"><num value="293.22">§293.22</num><heading>Noncompliance Review and Commission Action</heading><content>(a) Purpose. The purpose of this section is to set out procedures for commission review of groundwater conservation district (GCD) noncompliance with requirements of Texas Water Code (TWC), Chapter 36. This section provides a process for a GCD to achieve compliance, enforcement procedures if compliance is not achieved, and commission enforcement actions. Management plan noncompliance review and commission action are required under TWC as the result of a GCD's failure to:(1) adopt a management plan in accordance with TWC, §36.1071 and §36.1072 and submit the plan for review and approval to the executive administrator of the Texas Water Development Board within three years of either the effective date of creation of the district or the date the district was confirmed by election if an election was required;(2) receive within 60 days of submittal, written approval from the executive administrator of the Texas Water Development Board for a management plan, an amended management plan, or a readopted management plan as provided by TWC, §36.1072 and §36.1073;(3) readopt and resubmit the management plan for review and approval to the executive administrator of the Texas Water Development Board at least once every five years after the date of the most recent management plan approval;(4) be actively engaged and operational in achieving the objectives of its groundwater management plan based on the State Auditor's Office review of the district's performance as provided by TWC, §36.302; or(5) adopt, implement, or enforce district management plans and rules to protect groundwater as evidenced in a report prepared by a commission-appointed review panel as provided by TWC, §36.3011 and §293.23 of this title (relating to Petition Requesting Commission Inquiry).(b) Noncompliance review. The executive director shall investigate the facts and circumstances of any violations of this chapter or order of the commission under this chapter or provisions of TWC, §§36.301, 36.3011, and 36.302.(1) The executive director shall notify the district and may attempt to resolve any noncompliance set out in subsection (a) of this section with the district.(2) After review of the facts and identification of noncompliance issues, the executive director shall submit a compliance agreement to the district. The compliance agreement must clearly identify the noncompliance issue(s) and provide district actions and a schedule for the district to achieve compliance.(3) The district shall be provided a specified time frame not to exceed 60 days after the date of receipt of the compliance agreement, to consider and agree to the terms of the compliance agreement and schedule. If the district wants to amend the compliance agreement schedule, it must contact the executive director within 30 days of receipt of the compliance agreement so that the compliance agreement can be considered and signed by the district and its board of directors within the 60-day time frame.(4) If the district agrees with and signs the compliance agreement, the executive director shall monitor the district's implementation of the agreement terms. If the district accomplishes compliance within the agreed schedule, the executive director shall notify the district that it has achieved compliance and is no longer under review by the commission.(c) Executive director recommendations filed with commission. If unable to resolve the violation under subsection (b) of this section, or if the facts of the noncompliance issue warrant, the executive director shall follow the procedures for commission enforcement actions set out in Chapter 70, Subchapter C of this title (relating to Enforcement Referrals to SOAH). The executive director shall prepare and file a written report with the commission and the district and include any actions the executive director believes the commission should take under TWC, §36.303 and subsection (e) of this section.(d) Notice and hearing. The commission shall provide notice in accordance with §70.104 of this title (relating to Notice of Executive Director's Preliminary Report). If the executive director's report recommends dissolution of a district or of a board of directors or referral of the matter to the Office of the Attorney General requesting the placement of a district into receivership, the commission shall hold an enforcement hearing.(1) The commission shall publish notice once each week for two consecutive weeks before the day of the hearing to receive evidence on the dissolution of a district or of a board of directors or referral of the matter to the Office of the Attorney General requesting the placement of a district into receivership in a newspaper of general circulation in the area in which the district is located with the first publication being 30 days before the day of hearing.(2) The commission shall give notice of the hearing by first-class mail addressed to the directors of the district according to the last record on file with the executive director.(e) Commission enforcement actions. In accordance with TWC, §§36.301, 36.3011, and 36.302, the commission, after notice and hearing, shall take all actions it considers appropriate, including:(1) issuing an order requiring the district to take certain actions or to refrain from taking certain actions;(2) dissolving the board in accordance with TWC, §36.305 and §36.307 and calling an election for the purpose of electing a new board;(3) requesting the attorney general to bring suit for the appointment of a receiver to collect the assets and carry on the business of the GCD in accordance with TWC, §36.3035;(4) dissolving the district in accordance with TWC, §§36.304, 36.305, and 36.308; or(5) recommending to the legislature in the commission's report concerning priority groundwater management areas required by TWC, §35.018, actions the commission deems necessary to accomplish comprehensive management in the district.(f) District dissolution. TWC, §§36.304 - 36.310 authorize the commission to dissolve any district as defined in TWC, §36.001(1), that has no outstanding bonded indebtedness.(1) A district that is composed of territory entirely within one county may be dissolved even if it has outstanding indebtedness that matures after the year in which the district is dissolved. If a district is in more than one county, and has outstanding bond indebtedness, it may not be dissolved.(2) Upon the dissolution of a district by the commission, all assets of the district shall be sold at public auction and the proceeds given to the county if it is a single county district. If it is a multi-county district, the proceeds shall be divided with the counties in proportion to the surface land area in each county served by the district.(3) The commission shall file a certified copy of an order for the dissolution of a GCD in the deed records of the county or counties in which the district is located. If the district was created by a special Act of the legislature, the commission shall file a certified copy of the order of dissolution with the Secretary of State.(g) Dissolution of board. If the commission enters an order to dissolve the board of a GCD, the commission shall notify the county commissioners court of each county which contains territory in the district. The commission shall appoint five temporary directors under TWC, §36.016, that shall serve until an election for a new board can be held under TWC, §36.017. However, district confirmation shall not be required for continued existence of the district and shall not be an issue in the election.(h) Receivership. If the commission enters an order to request the attorney general to bring suit for the appointment of a receiver to collect the assets and carry on the business of a district, the executive director shall forward the order and the request to the attorney general and provide any relevant commission correspondence. The executive director shall assist the attorney general as requested and shall continue to track the status of attorney general actions.(i) Appeals. Appeals from any commission order issued under this section shall be filed and heard in the district court of any of the counties in which the district is located.</content><note type="source"><p>Source Note: The provisions of this §293.22 adopted to be effective August 29, 2002, 27 TexReg 7942; amended to be effective October 26, 2006, 31 TexReg 8699; amended to be effective August 16, 2012, 37 TexReg 6060; amended to be effective May 19, 2016, 41 TexReg 3506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scC/s293.23"><num value="293.23">§293.23</num><heading>Petition Requesting Commission Inquiry</heading><content>(a) Purpose and applicability. This section provides procedures for commission review of a petition filed by an affected person requesting an inquiry into a groundwater conservation district's (GCD) activities regarding management planning or rules; commission appointment of the review panel; review panel actions; and executive director actions under Texas Water Code (TWC), §36.3011. An affected person means, with respect to a management area:(1) an owner of land in the management area;(2) a GCD or subsidence district in or adjacent to the management area;(3) a regional water planning group with a water management strategy in the management area;(4) a person who holds or is applying for a permit from a district in the management area; or(5) a person with a legally defined interest in groundwater in the management area.(b) Petition requesting commission inquiry. An affected person may file a petition with the commission to request an inquiry for any of the reasons in paragraphs (1) - (9) of this subsection:(1) a district fails to submit its management plan to the executive administrator of the Texas Water Development Board;(2) a district fails to participate in the joint planning process under TWC, §36.108;(3) a district fails to adopt rules;(4) a district fails to adopt the applicable desired future conditions adopted by the management area at a joint meeting;(5) a district fails to update its management plan before the second anniversary of the adoption of desired future conditions by the management area;(6) a district fails to update its rules to implement the applicable desired future conditions before the first anniversary of the date the district updated its management plan with the adopted desired future conditions;(7) the rules adopted by a district are not designed to achieve the adopted desired future conditions;(8) the groundwater in the management area is not adequately protected by the rules adopted by a district; or(9) the groundwater in the management area is not adequately protected due to the failure of a district to enforce substantial compliance with its rules.(c) The petition must include supporting documentation for each of the individual reasons the affected person identifies in subsection (b) of this section demonstrating that a commission inquiry is necessary.(d) The petition must include a certified statement from the affected person that describes why the petitioner believes that a commission inquiry is necessary.(e) The petitioner shall provide a copy of the filed petition to all GCDs within and adjacent to the GMA within five days of the date the petition was filed. Within 21 days of filing the petition, the petitioner shall file with the chief clerk of the commission an affidavit or other evidence, such as a return receipt for certified mail service, that a copy of the petition was mailed to each GCD within and adjacent to the petitioner's GMA.(f) Any GCD that is within and adjacent to the GMA that is the subject matter of the petition may file a response to the validity of the specific claims raised in the petition. The responding entity shall file its response with the chief clerk of the commission within 35 days of the date that the petition is filed, and shall also on the same day serve the petitioner, the executive director, the public interest counsel, and any other GCD in and adjacent to the GMA. The chief clerk shall accept a response that is filed after the deadline but shall not process the late documents. The chief clerk shall place the late documents in the file for the petition.(g) Commission review of petition. The commission shall review the petition and any timely filed responses, no sooner than 35 days, but not later than 90 days after the date the petition was filed. The commission may dismiss the petition if it finds that the evidence required by subsections (c) and (d) of this section is not sufficient to show that the items contained in subsection (b)(1) - (9) of this section exist. If the commission does not dismiss the petition, it shall appoint a review panel to prepare a written report.(1) The review panel shall consist of five members.(A) The commission shall appoint one of the members to serve as the chairman of the review panel. The chairman shall schedule and preside over the proceedings and meetings of the panel.(B) A director or general manager of a district that is not an affected person as defined by subsection (a) of this section and is not the subject of the petition may be appointed to the review panel.(C) The commission may not appoint more than two members of the review panel from any one district.(2) The commission shall appoint a disinterested person to serve as a nonvoting recording secretary for the review panel. The recording secretary may be an employee of the commission. The recording secretary shall record and document the proceedings of the review panel.(3) The commission may direct the review panel to conduct public hearings at a location in the groundwater management area to take evidence on the petition.(4) In accordance with TWC, §36.3011, the review panel shall review the petition and any evidence relevant to the petition and consider and adopt a report to the commission.(h) Review panel report. The review panel's report must be submitted to the executive director no later than 120 days after the review panel was appointed by the commission. The review panel's report shall include:(1) if a public hearing is conducted, a summary of evidence taken on the petition;(2) a list of findings and recommended actions appropriate for the commission to take under TWC, §36.303 and §293.22(e) of this title (relating to Noncompliance Review and Commission Action) and the reasons it finds those commission actions appropriate; and(3) any other information the panel considers appropriate for commission consideration.(i) Commission action on review panel report. The executive director or the commission shall take action to implement any or all of the review panel's recommendations if a cause contained in subsection (b)(1) - (9) of this section applies. The executive director shall, no later than 45 days after the date the review panel report was received, recommend to the commission or initiate any action considered necessary under TWC, §36.303 and §293.22(b) - (h) of this title.</content><note type="source"><p>Source Note: The provisions of this §293.23 adopted to be effective August 29, 2002, 27 TexReg 7942; amended to be effective October 26, 2006, 31 TexReg 8699; amended to be effective August 16, 2012, 37 TexReg 6060; amended to be effective May 19, 2016, 41 TexReg 3506.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scD"><num value="D">SUBCHAPTER D</num><heading>APPOINTMENT OF DIRECTORS</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scD/s293.31"><num value="293.31">§293.31</num><heading>Appointment of Directors</heading><content>At the time the commission issues an order granting the petition for creation of a district, and at other relevant times as may be provided by law, the commission shall appoint the appropriate number of directors who shall serve until their successors are elected, or appointed, and qualified.</content><note type="source"><p>Source Note: The provisions of this §293.31 adopted to be effective September 5, 1986, 11 TexReg 3735.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scD/s293.32"><num value="293.32">§293.32</num><heading>Qualifications of Directors</heading><content>(a) Unless otherwise provided, an applicant for appointment as a director must be at least 18 years old, a resident citizen of Texas, and either own land subject to taxation in the district or be a qualified voter within the district.(1) A director of a fresh water supply district created under Texas Water Code (TWC), Chapter 53:(A) must be:(i) a resident of this state;(ii) an owner of taxable property in the district; and(iii) at least 18 years of age; or(B) must be a registered voter of the district.(2) A director of a regional district created for the purposes defined under TWC, §59.004 must be at least 18 years old and a resident of this state, but need not be a landowner or qualified voter within the district.(3) A director of a special utility district created for the purposes defined under TWC, §65.012, must be a resident citizen of this state and either own land subject to taxation in the district, or be a user of the facilities of the district or be a qualified voter in the district.(4) A director of a stormwater control district created for the purposes defined under TWC, §66.012, must reside within the boundaries of the proposed district but need not be a landowner or qualified voter within the district.(5) A director of a groundwater conservation district must be a registered voter in the precinct that the person represents pursuant to TWC, §36.059(b).(6) A person cannot be appointed to fill a vacancy on the board of a municipal utility district, under TWC, Chapter 54, if the person:(A) resigned from that board:(i) within two years preceding the vacancy date; or(ii) on or after the vacancy date but before the vacancy is filled; or(B) was defeated in a directors election held by that district in the two years preceding the vacancy date.(7) A director shall not be a developer of property in the district, or be related within the third degree of affinity or consanguinity to a developer of property in the district, any other member of the governing board of the district, or the manager, engineer, or attorney for the district, or other person providing professional services to the district.(8) A director shall not be an employee of any developer of property in the district, or any director, manager, engineer, attorney, or other person providing professional services to the district, or a developer of property in the district in connection with the district or property located in the district.(b) As used in this section, a developer of property in the district means any person who owns land located within a district covered under this section and who has divided or proposes to divide the land into two or more parts for the purpose of laying out any subdivision or any tract of land or any addition to any town or city, or for laying out suburban lots or building lots, or any lots, streets, alleys, or parks or other portions intended for public use, or the use of purchasers or owners of lots fronting thereon or adjacent thereto. (See TWC, §49.052(d).)</content><note type="source"><p>Source Note: The provisions of this §293.32 adopted to be effective September 5, 1986, 11 TexReg 3735; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective September 14, 2000, 25 TexReg 8955; amended to be effective October 26, 2006, 31 TexReg 8699; amended to be effective July 31, 2008, 33 TexReg 5936; amended to be effective April 21, 2013, 38 TexReg 2372.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scD/s293.33"><num value="293.33">§293.33</num><heading>Commission Appointment of Directors to Fill Vacancies</heading><content>(a) The commission may appoint a director or directors to fill a vacancy or vacancies on the board of:(1) a district that is subject to commission bond review under Texas Water Code, §49.181 if the number of directors is reduced to fewer than a majority or if a vacancy continues beyond the 90th day after it occurs, as provided by Texas Water Code, §49.105(c); and(2) other districts where specifically provided by law.(b) Requests for Appointment due to less than a quorum of board members shall be accompanied by the following:(1) petition signed by a landowner within the district requesting appointment of a director or directors to fill one or more vacancies on the board;(2) evidence of each former director's failure or refusal to qualify or serve for each vacancy on the board to be filled;(3) requests for consideration of appointment as director in the form shown in §293.34 of this title (relating to Form of Affidavit for Appointment as Director) for those persons desiring consideration as director for vacant positions;(4) certified mail receipt verifying that notice of the application for appointment of directors was sent to the district's official address and each director as shown on the district's latest registration form;(5) an application fee of $100; and(6) any other information as the executive director may require.(c) The executive director or a landowner within the district may request appointment of a director to fill a vacancy that has not been filled by the remaining board members after the 90th day a position becomes vacant. Any request submitted by a landowner under this subsection shall include:(1) evidence that the position has been vacant for more than 90 days;(2) nomination of a candidate who meets the director qualifications as evidenced by completion of the form shown in §293.34 of this title (relating to Form of Affidavit for Appointment as Director); and(3) certified mail receipt verifying that a copy of the request to fill the vacancy was sent to the district's official address and each director as shown on the district's latest registration form.</content><note type="source"><p>Source Note: The provisions of this §293.33 adopted to be effective September 5, 1986, 11 TexReg 3735; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective September 14, 2000, 25 TexReg 8955.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scD/s293.34"><num value="293.34">§293.34</num><heading>Form of Affidavit for Appointment as Director</heading><content>The following form of affidavit must be completed, executed, and filed with the chief clerk at least ten working days prior to the commission hearing on the appointment of such directors.</content><note type="source"><p>Source Note: The provisions of this §293.34 adopted to be effective September 5, 1986, 11 TexReg 3735; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective April 15, 1994, 19 TexReg 2301; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scD/s293.35"><num value="293.35">§293.35</num><heading>Reinstatement of a Board Member</heading><content>(a) If a board by unanimous vote of its remaining members has removed a board member pursuant to Water Code, §49.052(g), that board member may submit a written appeal to the executive director within 30 days after receiving written notice of the board action. The commission may reinstate a removed director if the commission finds that the removal was unwarranted under the circumstances, including the reasons for absences, the time and place of the meetings missed, the business conducted at the meetings missed, and any other facts or circumstances the commission may deem relevant.(b) A removed board member desiring to appeal the decision of the district's board of directors shall submit an application to the executive director. The application shall consist of the following:(1) a written request by the removed board member requesting commission review;(2) an application fee of $100;(3) copies of the district's board meeting minutes for the 12 months prior to the date of the board member's removal;(4) a statement as to why the removed board member believes that his/her removal was unwarranted, along with supporting documentation to support the statement, including the reasons for absences, the time and place of the meetings missed, the business conducted at the meetings missed, and any other relevant facts or circumstances; and(5) such other information which the commission considers material to a determination of whether the removed board member should be reinstated as a director of the district or the district's actions in removing the board member were warranted and reasonable.(c) The executive director will examine the application and the facts and circumstances contained therein and will prepare a written report which will be submitted to the commission. A copy of the report will be mailed to the removed board member, the directors of the district, the district's official address and any other interested parties, including the district's attorney, if known.(d) After consideration, the commission will determine whether the removed board member will or will not be reinstated. The commission will enter the appropriate order, either reinstating the applicant to the district's board of directors or confirming the board's decision to remove the board member.</content><note type="source"><p>Source Note: The provisions of this §293.35 adopted to be effective October 22, 1996, 21 TexReg 9905.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scE"><num value="E">SUBCHAPTER E</num><heading>ISSUANCE OF BONDS</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.41"><num value="293.41">§293.41</num><heading>Approval of Projects and Issuance of Bonds</heading><content>(a) Bonds, as referred to in this subchapter, include any bonds authorized to be issued by the Texas Water Code (TWC) or special statute, and are represented by an instrument issued in bearer or registered form. This section does not apply to: (1) refunding bonds, if the commission issued an order approving the issuance of the bonds or notes that originally financed the project; (2) refunding bonds that are issued by a district under an agreement between the district and a municipality allowing the issuance of the district's bonds to refund bonds issued by the municipality to pay the cost of financing facilities; (3) bonds issued to and approved by the Farmers Home Administration, the United States Department of Agriculture, the North American Development Bank, or the Texas Water Development Board, or successor agencies; (4) refunding bonds issued to refund bonds described by paragraph (3) of this subsection; (5) bonds issued by a public utility agency created under Local Government Code, Chapter 572, any of the public entities participating in which are districts, if at least one of those districts is a district described by subsection (d)(1)(E) of this section; or (6) bonds issued by a district to finance a project for which the commission has not adopted rules requiring review and approval. (b) This subchapter does apply to revenue notes to the extent described in §293.80(d) of this title (relating to Revenue Notes) and contract tax obligations to the extent described in §293.89 of this title (relating to Contract Tax Obligations). (c) The commission has the statutory responsibility to approve projects relating to the issuance and sale of bonds for districts as defined in TWC, §49.001(1), and other districts where specifically required by law. (d) This subchapter does not apply to: (1) a district if: (A) the boundaries include one entire county; (B) the district was created by a special act of the legislature; and (i) the district is located entirely within one county and entirely within one or more home-rule municipalities; (ii) the total taxable value of the real property and improvements to the real property, zoned by one or more home-rule municipalities for residential purposes and located within the district, does not exceed 25% of the total taxable value of all taxable property in the district, as shown by the most recent certified appraisal tax roll prepared by the appraisal district for the county; and (iii) the district was not required by law to obtain commission approval of its bonds before September 1, 1995; (C) the district is a special water authority as defined by TWC, §49.001(8); (D) the district is governed by a board of directors appointed in whole or part by the governor, a state agency, or the governing body or chief elected official of a municipality or county and does not provide, or propose to provide, water, wastewater, drainage, reclamation, or flood control services to residential retail or commercial customers as its principal function; or (E) the district: (i) is a municipal utility district operating under TWC, Chapter 54, that includes territory in only two counties; (ii) has outstanding long-term indebtedness that is rated BBB or better by a nationally recognized rating agency for municipal securities; and (iii) has at least 5,000 active water connections; or (F) the district: (i) is a conservation and reclamation district created under the Texas Constitution, Article 16, §59, that includes territory in at least three counties; and (ii) has the rights, privileges, and functions applicable to a river authority under TWC, Chapter 30; or (2) a public utility agency created under Local Government Code, Chapter 572, any of the public entities participating in which are districts, if at least one of those districts is a district described by paragraph (1)(E) of this subsection. (e) A district located within Bastrop, Bexar, Brazoria, Fort Bend, Galveston, Harris, Montgomery (except for a district all or part of which is located in Montgomery County and includes land within a planned community of at least 15,000 acres, of which a majority of the developed acreage is subject to restrictive covenants containing ad valorem assessments), Travis, Waller, or Williamson Counties may submit bond applications, which include recreational facilities that are supported by taxes, in accordance with TWC, §49.4645. (1) Bond applications submitted under this subsection must include a copy of a district's park plan as required under TWC, §49.4645(b), in addition to other application requirements under §293.43 of this title (relating to Application Requirements). The park plan is to be signed and sealed by a registered landscape architect, a licensed professional engineer, or any other design professional allowed by law to engage in landscape architecture. (2) Bond applications submitted under this subsection may include: (A) forests, greenbelts, open spaces, and native habitat; (B) sidewalks, trails, paths, boardwalks, and fitness trail equipment, subject to the following restrictions: (i) the sidewalks, trails, paths, boardwalks, and fitness trail equipment unrelated to golf courses; (ii) the sidewalks, trails, paths, boardwalks, and fitness trail equipment located outside of the right-of-way required by applicable government agencies for streets, unless a district has completed and financed at least 90% of its projected water, wastewater, and drainage facilities to serve residential development within the district; and (iii) if a district has completed and financed at least 90% of its projected water, wastewater, and drainage facilities to serve residential development within the district prior to the annexation of land, the location restriction in clause (ii) of this subparagraph only applies to annexed land; (C) pedestrian bridges and underpasses that are less than 200 feet in length and not related to golf courses; (D) outdoor ballfields, including, but not limited to, soccer, football, baseball, softball, and lacrosse, outdoor skate/roller blade facilities, associated scoreboards, and bleachers designed for less than 500 people per field or per skate/roller blade facility; (E) parks (outdoor playground facilities and associated ground surface material, picnic tables, benches, barbeque grills, fire pits, fireplaces, trash receptacles, drinking water fountains, open-air pavilions/gazebos, open-air amphitheaters/assembly facilities designed for less than 500 people, open-air shade structures, restrooms and changing rooms, concession stands, water playgrounds, recreational equipment storage facilities, and emergency call boxes); (F) amenity lakes, and associated water features, docks, piers, overlooks, and non-motorized boat launches subject to §293.44(a)(24) of this title (relating to Special Considerations); (G) amenity/recreation centers, outdoor tennis courts, and outdoor basketball courts if the district has funded water, wastewater, and drainage facilities to serve at least 90% of the residential development within the district; (H) fences no higher than eight feet that are located within public right-of-way or district sites/easements and are along streets if the district has funded water, wastewater, and drainage facilities to serve at least 90% of the residential development within the district; and (I) landscaping (including, but not limited to, trees, shrubs, and berms) and associated irrigation, fences, information signs/kiosks, lighting (except street lighting), and parking related to items listed in subparagraphs (A) through (G) of this paragraph. (3) Bond applications submitted under this subsection shall not include: (A) indoor or outdoor swimming pools, pool decks, and associated equipment or storage facilities; (B) golf courses, clubhouses, and related structures or facilities; (C) air conditioned buildings, gymnasiums, spas, fitness centers, and habitable structures, except as allowed in paragraph (2) of this subsection; (D) sound barrier walls; (E) retaining walls used for roadway purposes; (F) fences, such as for subdivisions and lots, which are not related to district facilities, except as allowed in paragraph (2) of this subsection; (G) signs and monuments, such as for subdivisions and developments, which are not related to district facilities; and (H) street lighting, except for a district operating under TWC, Chapter 54, pursuant to TWC, §54.236, as amended. (4) A district's outstanding principal debt (bonds, notes, and other obligations), supported by ad valorem taxes, for recreational facilities may not exceed 1% of the taxable value of property in the district, as supported by a certificate from the central appraisal district, at the time of issuance of the debt or exceed the estimated cost provided in the park plan required under TWC, §49.4645(b), whichever is smaller. If supported by contract taxes under TWC, §49.108, the outstanding principal debt (bonds, notes, and other obligations) may not exceed an amount equal to 1% of the value of the taxable property in the district or districts making payments under the contract. An estimate of the value provided by the central appraisal district may be used to establish the value of the taxable property in the district or districts. (5) A district may submit a bond application that proposes to fund recreational facilities only after or at the same time a district has funded water, wastewater, and/or drainage facilities, depending on a district's authorized functions, to serve the section that includes the recreational facilities or to serve areas along roads that are either adjacent to the recreational facilities or are necessary to provide access to the recreational facilities. (6) Plans and specifications for recreational facilities must be signed and sealed by a registered landscape architect, a licensed professional engineer, or any other design professional allowed by law to engage in landscape architecture.</content><note type="source"><p>Source Note: The provisions of this §293.41 adopted to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective May 5, 2005, 30 TexReg 2533; amended to be effective October 26, 2006, 31 TexReg 8699; amended to be effective July 31, 2008, 33 TexReg 5936; amended to be effective April 21, 2013, 38 TexReg 2372; amended to be effective November 13, 2014, 39 TexReg 8730.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.42"><num value="293.42">§293.42</num><heading>Submitting of Documents and Order of Review</heading><content>(a) Applicants shall submit all of the required data at one time in one package. Applications may be returned for completion if they do not satisfy the requirements and conform to the bond application report format.(b) Applicants may qualify for an expedited review which entitles them to a commitment from staff to have a completed memorandum to the commission within 60 calendar days following submission of the application. In order to qualify for this expedited review, the applicant must submit a bond application that complies with §293.43 of this title (relating to Application Requirements). The district's bond counsel, engineer, and financial advisor must also sign a certificate which is worded as shown on the form provided by the executive director. The certificate must state that the district's bond counsel, engineer, and financial advisor have reviewed the bond application, that the application is accurate and complete, that the application includes specific documents identified on the form, and that the district's financial status has reached the thresholds provided in §293.59 of this title (relating to Economic Feasibility of Project) as shown by its existing assessed valuation and completion of facilities. If the executive director finds the documentation to be insufficient, the application will not be expedited and an administrative review letter will be sent. A bond applicant that seeks conditional approval on the basis of receiving an acceptable credit rating or credit enhanced rating as provided in §293.47(b)(4) and (5) and (c) of this title (relating to Thirty Percent of District Construction Costs To Be Paid by Developer) may qualify for expedited review. A bond applicant that seeks approval on the basis of a ratio of debt to certified assessed valuation of 10% or less must provide evidence of that ratio as provided in §293.47(b)(3) of this title to qualify for the expedited review.(c) Applicants may qualify for an expedited review which entitles them to a commitment from staff to have a completed memorandum to the commission within 45 calendar days following submission of the application. If the executive director finds the documentation to be insufficient, the application will not be expedited and an administrative review letter will be sent. In order to qualify for this expedited review, the applicant must submit a bond application that includes all of the items listed in §293.43 of this title and the following:(1) a certificate signed by the district's president, engineer, financial advisor, and bond counsel, which is worded as shown on the form provided by the executive director, which states that less than 20% of the total land area in the district is undeveloped with underground facilities, that the facilities contained in the bond application are for water plant facilities, wastewater treatment plant facilities, major lines to or between such facilities, remote water wells, or for any improvement necessary to serve development in the district as described in §293.83(c)(3) of this title (relating to District Use of Surplus Funds for any Purpose and Use of Maintenance Tax Revenue for Certain Purposes), that no funds are being expended for developer facilities as described in §293.47(d) of this title and no funds are being used to reimburse a developer as described in Texas Water Code, §49.052(d), that the district expects to have a no-growth tax rate of $0.75 or less calculated in accordance with §293.59(d) of this title after issuance of the proposed bonds, and that the district is legally authorized to issue the bonds;(2) a debt service schedule and related cash flow schedule showing a no-growth tax rate as defined in §293.59(d) of this title of $0.75 or less; and(3) a certificate of assessed valuation or estimated assessed valuation as defined by §293.59(d) of this title reflecting a value sufficient to support the no-growth tax rate in paragraph (2) of this subsection.(d) A bond application that does not qualify for an expedited review pursuant to subsection (b) or (c) of this section may not become eligible for expedited review unless the applicant requests withdrawal of the pending application in writing and resubmits the filing fee and completed certificate in accordance with subsection (b) or (c) of this section. For the purposes of this subsection, a new receipt date will be assigned and the time requirements of subsection (b) and (c) of this section shall commence upon the date of submission of the signed certificate.</content><note type="source"><p>Source Note: The provisions of this §293.42 adopted to be effective September 5, 1986, 11 TexReg 3736; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective September 14, 2000, 25 TexReg 8955; amended to be effective October 6, 2002, 27 TexReg 9365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.43"><num value="293.43">§293.43</num><heading>Application Requirements</heading><content>For the approval of projects and the issuance of bonds, a district shall submit:(1) an application including the subject matter contained in Water Code, §49.181, together with the materials required by Water Code, §36.171(b) for Groundwater Conservation Districts; the Texas Water Code, §54.037, for Regional Plan Implementation Agencies; and the Texas Water Code, §12.082, for Freshwater Supply Districts;(2) a certified copy of the district board's resolution authorizing submission of application for bond issuance;(3) evidence acceptable to the executive director of compliance with Water Code, §49.010, and, if applicable, Water Code, §54.016, and Texas Local Government Code, §42.042, including consent by any city having extraterritorial jurisdiction, if not previously provided to the commission, and referencing the appropriate petition or bond application if these documents have been previously provided;(4) a filing fee of $500 plus the cost of any required notice;(5) a bond application report in accordance with the applicable provisions of the "Bond Application Report Format" manual adopted by the executive director, and currently in effect, which manual shall be subject to revision, as deemed necessary by the executive director; and(6) additional data and information as the executive director or the commission may deem necessary and pertinent to the bond application under consideration.</content><note type="source"><p>Source Note: The provisions of this §293.43 adopted to be effective September 5, 1986, 11 TexReg 3736; amended to be effective February 23, 1988, 13 TexReg 735; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.44"><num value="293.44">§293.44</num><heading>Special Considerations</heading><content>(a) Developer projects. The following provisions shall apply unless the commission, in its discretion, determines that application to a particular situation renders an inequitable result.(1) A developer project is a district project that provides water, wastewater, drainage, or recreational facility service for property owned by a developer of property in the district, as defined by Texas Water Code (TWC), §49.052(d).(2) Except as permitted under paragraph (8) of this subsection, the costs of joint facilities that benefit the district and others should be shared on the basis of benefits received. Generally, the benefits are the design capacities in the joint facilities for each participant. Proposed cost sharing for conveyance facilities should account for both flow and inflow locations.(3) The cost of clearing and grubbing of district facilities' easements that will also be used for other facilities that are not eligible for district expenditures, such as roads, gas lines, telephone lines, etc., should be shared equally by the district and the developer, except where unusually wide road or street rights-of-way or other unusual circumstances are present, as determined by the commission. The district's share of such costs is further subject to any required developer contribution under §293.47 of this title (relating to Thirty Percent of District Construction Costs to be Paid by Developer). The applicability of the competitive bidding statutes and/or regulations for clearing and grubbing contracts let and awarded in the developer's name shall not apply when the amount of the estimated district share, including any required developer contribution does not exceed 50% of the total construction contract costs.(4) A district may finance the cost of spreading and compacting of fill as follows.(A) A district may finance the cost of spreading and compacting of fill in areas that require the fill for development purposes, such as in abandoned ditches or floodplain areas, only to the extent necessary to dispose of the spoil material (fill) generated by other projects of the district.(B) A levee improvement district or a district with the powers of a levee improvement district may finance the cost of spreading and compacting fill to remove property from the 100-year floodplain.(C) A municipal utility district or a district with the powers of a municipal utility district may finance the costs of spreading and compacting fill to provide drainage if the costs are less than the cost of constructing or improving drainage facilities which would have been required to achieve a similar purpose as the fill project, as determined by the district's engineer.(5) The cost of any clearing and grubbing in areas where fill is to be placed should not be paid by the district, unless the district can demonstrate a net savings in the costs of disposal of excavated materials when compared to the estimated costs of disposal off site.(6) When a developer changes the plan of development requiring the abandonment or relocation of existing facilities, the district may pay the cost of either the abandoned facilities or the cost of replacement facilities, but not both.(7) When a developer changes the plan of development requiring the redesign of facilities that have been designed, but not constructed, the district may pay the cost of the original design or the cost of the redesign, but not both.(8) A district shall not finance the pro rata share of oversized water, wastewater, or drainage facilities to serve areas outside the district unless:(A) such oversizing:(i) is required by or represents the minimum approvable design sizes prescribed by local governments or other regulatory agencies for such applications;(ii) does not benefit out-of-district land owned by the developer;(iii) does not benefit out-of-district land currently being developed by others; and(iv) the district agrees to use its best efforts to recover such costs if a future user outside the district desires to use such capacity; or(B) the district has entered into an agreement with the party being served by such oversized capacity that provides adequate payment to the district to pay the cost of financing, operating, and maintaining such oversized capacity; or(C) the district has entered into an agreement with the party to be served or benefitted in the future by such oversized capacity, which provides for contemporaneous payment by such future user of the incremental increase in construction and engineering costs attributable to such oversizing and which, until the costs of financing, construction, operation, and maintenance of such oversized facilities are prorated according to paragraph (2) of this subsection, provides that:(i) the capacity or usage rights of such future user shall be restricted to the design flow or capacity of such oversized facilities multiplied by the fractional engineering and construction costs contemporaneously paid by such future user; and(ii) such future user shall pay directly allocable operation and maintenance costs proportionate to such restricted capacity or usage rights; or(D) the district or a developer in the district has entered into an agreement with a municipality or regional water or wastewater provider regarding the oversized facilities and such oversizing is more cost-effective than alternative facilities to serve the district only. For the purposes of this subparagraph, regional water or wastewater provider means a provider that serves land in more than one county. An applicant requesting approval under this subparagraph must provide:(i) bid documents or an engineer's sealed estimate of probable costs of alternatives that meet minimum acceptable standards based on costs prevailing at the time the facilities were constructed; or(ii) an engineering feasibility analysis outlining the service alternatives considered at the time the decision to participate in the oversizing was made; or(iii) any other information requested by the executive director.(9) Railroad, pipeline, or underground utility relocations that are needed because of road crossings should not be financed by the district; however, if such relocations result from a simultaneous district project and road crossing project, then such relocation costs should be shared equally. The district's share of such costs is further subject to any required developer contribution under §293.47 of this title.(10) Engineering studies, such as topographic surveys, soil studies, fault studies, boundary surveys, etc., that contain information that will be used both for district purposes and for other purposes, such as roadway design, foundation design, land purchases, etc., should be shared equally by the district and the developer, unless unusual circumstances are present as determined by the commission. The district's share of such costs is further subject to any required developer contribution under §293.47 of this title.(11) Land planning, zoning, and development planning costs should not be paid by the district, except for conceptual land-use plans required to be filed with a city as a condition for city consent to creation of the district.(12) The cost of constructing lakes or other facilities that are part of the developer's amenities package should not typically be paid by the district; however, the costs for the portion of an amenity lake considered a recreational facility under paragraph (24) of this subsection may be funded by the district. The cost of combined lake and detention facilities should be shared with the developer on the basis of the volume attributable to each use, and land costs should be shared on the same basis, unless the district can demonstrate a net savings in the cost of securing fill and construction materials from such lake or detention facilities, when compared to the costs of securing such fill or construction materials off site for another eligible project. Pursuant to the provisions of TWC, §49.4641, as amended, a district is not required to prorate the costs of a combined lake and detention site between the primary drainage purpose and any secondary recreational facilities purpose if a licensed professional engineer certifies that the site is reasonably sized for the primary drainage purpose.(13) Bridge and culvert crossings shall be financed in accordance with the following provisions.(A) The costs of bridge and culvert crossings needed to accommodate the development's road system shall not be financed by a district, unless such crossing consists of one or more culverts with a combined cross-sectional area of not more than nine square feet. The district's share shall be subject to the developer's 30% contribution as may be required by §293.47 of this title.(B) Districts may fund the costs of bridge and culvert crossings needed to accommodate the development's road system that are larger than those specified in subparagraph (A) of this paragraph, which cross channels other than natural waterways with defined bed and banks and are necessary as a result of required channel improvements subject to the following limitations:(i) the drainage channel construction or renovation must benefit property within the district's boundaries;(ii) the costs shall not exceed a pro rata share based on the percent of total drainage area of the channel crossed, measured at the point of crossing, calculated by taking the total cost of such bridge or culvert crossing multiplied by a fraction, the numerator of which is the total drainage area located within the district upstream of the crossing, and the denominator of which is the total drainage area upstream of the crossing; and(iii) the district shall be responsible for not more than 50% of the pro rata share as calculated under this subsection, subject to the developer's 30% contribution as may be required by §293.47 of this title.(C) The cost of replacement of existing bridges and culverts not constructed or installed by the developer, or the cost of new bridges and culverts across existing roads not financed or constructed by the developer, may be financed by the district, except that any costs of increasing the traffic-carrying capacity of bridges or culverts shall not be financed by the district.(14) In evaluating district construction projects, including those described in paragraphs (1) - (12) of this subsection, primary consideration shall be given to engineering feasibility and whether the project has been designed in accordance with good engineering practices, regardless of other acceptable or less costly engineering alternatives that may exist.(15) Bond issue proceeds will not be used to pay or reimburse consultant fees for the following:(A) special or investigative reports for projects which, for any reason, have not been constructed and, in all probability, will not be constructed;(B) fees for bond issue reports for bond issues consisting primarily of developer reimbursables and approved by the commission but which are no longer proposed to be issued;(C) fees for completed projects which are not and will not be of benefit to the district; or(D) provided, however, that the limitations shall not apply to regional projects or special or investigative reports necessary to properly evaluate the feasibility of alternative district projects.(16) Bond funds may be used to finance costs and expenses necessarily incurred in the creation and organization of the district and the operation of the district as follows.(A) Creation and organization expenses were incurred or projected to incur during the creation and organization period. Operational expenses were incurred or projected to incur during construction periods which include periods during which the district is constructing its facilities or there is construction by third parties of aboveground improvements within the district.(B) Creation and organization expenses are expenses incurred through the date of the canvassing of the confirmation election.(C) Construction periods do not need to be continuous; however, once reimbursement for a specific time period has occurred, operational expenses for a prior time period are no longer eligible. Payment of operational expenses during construction periods is limited to five years in any single bond issue.(D) Any reimbursement to a developer of operational expenses with bond funds is restricted to actual operational expenses paid by the district during the same five-year period for which application is made in accordance with this subsection.(E) The district may pay interest on the expenses under this paragraph. Section 293.50 of this title (relating to Developer Interest Reimbursement) applies to interest payments for a developer and such payments are subject to a developer reimbursement audit.(17) In instances where creation costs to be paid from bond proceeds are determined to be excessive, the executive director may request that the developer submit invoices and cancelled checks to determine whether such creation costs were reasonable, customary, and necessary for district creation purposes. Such creation costs shall not include planning, platting, zoning, other costs prohibited by paragraphs (10) and (14) of this subsection, and other matters not directly related to the district's water, wastewater, and drainage system, even if required for city consent.(18) The district shall not purchase, pay for, or reimburse the cost of facilities, either completed or incomplete, from which it has not and will not receive benefit, even though such facilities may have been at one time required by a city or other entity having jurisdiction.(19) The district shall not enter into any binding contracts with a developer that compel the district to become liable for costs above those approved by the commission.(20) A district shall not purchase more water supply or wastewater treatment capacity than is needed to meet the foreseeable capacity demands of the district, except in circumstances where:(A) lease payments or capital contributions are required to be made to entities owning or constructing regional water supply or wastewater treatment facilities to serve the district and others;(B) such purchases or leases are necessary to meet minimum regulatory standards; or(C) such purchases or leases are justified by considerations of economic or engineering feasibility.(21) The district may finance those costs, including mitigation, associated with flood plain regulation and wetlands regulation, attributable to the development of water plants, wastewater treatment plants, pump and lift stations, detention/retention facilities, drainage channels, and levees. The district's share shall not be subject to the developer's 30% contribution as may be required by §293.47 of this title.(22) The district may finance those costs associated with endangered species permits. Such costs shall be shared between the district and the developer with the district's share not to exceed 70% of the total costs, unless unusual circumstances are present as determined by the commission. The district's share shall not be subject to the developer's 30% contribution under §293.47 of this title. For purposes of this paragraph, "endangered species permit" means a permit or other authorization issued under §7 or §10(a) of the federal Endangered Species Act of 1973, 16 United States Code, §1536 and §1539(a).(23) The district may finance 100% of those costs associated with federal storm water permits. The district's share shall be subject to the developer's 30% contribution as may be required by §293.47 of this title. For purposes of this paragraph, "federal storm water permit" means a permit for storm water discharges issued under the federal Clean Water Act, including National Pollutant Discharge Elimination System permits issued by the United States Environmental Protection Agency and Texas Pollutant Discharge Elimination System permits issued by the commission.(24) The district may finance the portion of an amenity lake project that is considered a recreational facility.(A) The portion considered a recreational facility must be accessible to all persons within the district and is determined as:(i) the percentage of shoreline with at least a 30-foot wide buffer between the shoreline and private property; or(ii) the percentage of the perimeter of a high bank of a combination detention facility and lake with at least a 30-foot wide buffer between the high bank and private property.(B) The district's share of costs for the portion of an amenity lake project that is considered a recreational facility is not subject to the developer's 30% contribution under §293.47 of this title.(C) The authority for districts to fund recreational amenity lake costs in accordance with this paragraph does not apply retroactively to projects included in bond issues submitted to the commission prior to the effective date of this paragraph.(b) All projects.(1) The purchase price for existing facilities not covered by a preconstruction agreement or otherwise not constructed by a developer in contemplation of resale to the district, or if constructed by a developer in contemplation of resale to the district and the cost of the facilities is not available after demonstrating a good faith effort to locate the cost records should be established by an independent appraisal by a licensed professional engineer hired by the district. The appraised value should reflect the cost of replacement of the facility, less repairs and depreciation, taking into account the age and useful life of the facility and economic and functional obsolescence as evidenced by an on-site inspection.(2) Contract revenue bonds proposed to be issued by districts for facilities providing water, wastewater, or drainage, under contracts authorized under Texas Local Government Code, §552.014, or other similar statutory authorization, will be approved by the commission only when the city's pro rata share of debt service on such bonds is sufficient to pay for the cost of the water, wastewater, or drainage facilities proposed to serve areas located outside the boundaries of the service area of the issuing district.(3) When a district proposes to obtain capacity in or acquire facilities for water, wastewater, drainage, or other service from a municipality, district, or other political subdivision, or other utility provider, and proposes to use bond proceeds to compensate the providing entity for the water, wastewater, drainage, or other services on the basis of a capitalized unit cost, e.g., per connection, per lot, or per acre, the commission will approve the use of bond proceeds for such compensation under the following conditions:(A) the unit cost is reasonable;(B) the unit cost approximates the cost to the entity providing the necessary facilities, or the providing entity has adopted a uniform service plan for such water, wastewater, drainage, and other services based on engineering studies of the facilities required; and(C) the district and the providing entity have entered into a contract that will:(i) specifically convey either an ownership interest in or a specified contractual capacity or volume of flow into or from the system of the providing entity;(ii) provide a method to quantify the interest or contractual capacity rights;(iii) provide that the term for such interest or contractual capacity right is not less than the duration of the maturity schedule of the bonds; and(iv) contain no provisions that could have the effect of subordinating the conveyed interest or contractual capacity right to a preferential use or right of any other entity.(4) A district may finance those costs associated with recreational facilities, as defined in §293.1(c) of this title (relating to Objective and Scope of Rules; Meaning of Certain Words) and as detailed in §293.41(e)(2) of this title (relating to Approval of Projects and Issuance of Bonds) for all affected districts that benefit and are available to all persons within the district. A district's financing, whether from tax-supported or revenue debt, of costs associated with recreational facilities is subject to §293.41(e)(1) - (6) of this title and is not subject to the developer's 30% contribution as may be required by §293.47 of this title. The automatic exemption from the developer's 30% requirement provided in this paragraph supersedes any conflicting provision in §293.47(d) of this title. In planning for and funding recreational facilities, consideration is to be given to existing and proposed municipal and/or county facilities as required by TWC, §49.465, and to the requirement that bonds supported by ad valorem taxes may not be used to finance recreational facilities, as provided by TWC, §49.464(a), except as allowed in TWC, §49.4645.(5) The bidding requirements established in TWC, Chapter 49, Subchapter I are not applicable to contracts or services related to a district's use of temporary erosion-control devices or cleaning of silt and debris from streets and storm sewers.(6) A district's contract for construction work may include economic incentives for early completion of the work or economic disincentives for late completion of the work. The incentive or disincentive must be part of the proposal prepared by each bidder before the bid opening.(7) A district may utilize proceeds from the sale and issuance of bonds, notes, or other obligations to acquire an interest in a certificate of public convenience and necessity, contractual rights to use capacity in facilities and to acquire facilities, with costs determined in accordance with applicable law such as paragraph (3) of this subsection.(8) If a district is approved for the issuance of bonds by the commission to use a certain return flow of wastewater, the approval applies to subsequent bond authorizations unless the district seeks approval to use a different return flow of wastewater.</content><note type="source"><p>Source Note: The provisions of this §293.44 adopted to be effective September 5, 1986, 11 TexReg 3736; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective April 15, 1994, 19 TexReg 2301; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective September 14, 2000, 25 TexReg 8955; amended to be effective October 6, 2002, 27 TexReg 9365; amended to be effective May 5, 2005, 30 TexReg 2533; amended to be effective October 26, 2006, 31 TexReg 8699; amended to be effective July 14, 2011, 36 TexReg 4413; amended to be effective November 13, 2014, 39 TexReg 8730; amended to be effective January 3, 2019, 43 TexReg 8628;amended to be effective October 29, 2020, 45 TexReg 7593.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.45"><num value="293.45">§293.45</num><heading>Action of the Commission and Bond Proceeds Fee</heading><content>(a) The commission may by order dismiss an application for lack of prosecution or failure to comply with the regulations of the commission, allow the applicant to withdraw the application, or approve or deny the project and the issuance of bonds therefore. Upon issuing such an order, the commission shall forward certified copies to the applicant and the attorney general of Texas. District compliance with any special condition in the order approving engineering project and issuance of bonds, as executed by the commission, is mandatory. Unless bids are received and accepted for sale of the bonds within one year of the effective date of the commission's order approving the bonds, the district may not proceed with the sale of such bonds without executive director approval of an application for an extension of time meeting the requirements of §293.87 of this title (relating to Application for Extension of Time To Sell Bonds). Under no circumstances shall a commission order approving a bond issue be extended beyond three years from the date of the commission order originally approving the bonds.(b) If the bonds are approved by the commission, the district shall pay to the commission by check 0.25% of the principal amount of the bonds actually issued not later than the seventh business day after receipt of the bond proceeds. The commission may allow the district to pay a lesser amount if it determines that the circumstances surrounding a particular bond issue justify a lesser amount.(c) The commission may condition the approval on any terms or conditions considered appropriate by the commission.</content><note type="source"><p>Source Note: The provisions of this §293.45 adopted to be effective September 5, 1986, 11 TexReg 3736; amended to be effective February 23, 1988, 13 TexReg 735; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective April 15, 1994, 19 TexReg 2301.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.46"><num value="293.46">§293.46</num><heading>Construction Prior to Commission Approval</heading><content>The developer may proceed with financing or construction of water, wastewater, drainage, and recreational facilities contemplated for purchase by the district prior to commission approval of the bond issue designed to finance the project under the following conditions.(1) Prior to entering into construction contracts for such facilities, the developer and district shall execute an agreement setting out the terms of reimbursement, providing for the use of the facilities by the district until reimbursement and providing that the construction contract will be awarded and administered in accordance with commission regulations and applicable statutes relating to districts. If the district has not been created at the time of the execution of the construction contracts, the developer and district shall execute an agreement as described in the preceding sentence within 60 days after confirmation of the district. The contract shall not bind the district to payment of costs above that approved by the Commission. If such an agreement is not entered into within the time period specified above, and such actions of the developer are not subsequently ratified and approved by the district in a subsequent agreement with the developer, the developer shall be denied interest costs.(2) All construction plans, specifications, and contract documents as set forth in §293.62 of this title (relating to Construction Related Documents To Be Submitted to the Commission), change orders and supporting engineering data for construction or installation of the facilities shall be submitted to the appropriate commission field office in a timely manner, together with evidence that the materials have been filed with and approved by the district and have been noted in the district's minutes (if the district has not been created, the documents shall be filed with the district within 30 days after creation).(3) All construction plans and specifications for proposed projects must be approved by all cities and agencies having jurisdictional responsibilities over the district prior to construction contract award by the developer. Unless all required state and local approvals were obtained prior to contract award, a developer cannot be reimbursed for any additional costs resulting from changes required by the city or agency having jurisdictional responsibility after the construction contract is awarded.(4) The appropriate commission field office shall be notified of the bid opening at least five days prior to the opening.(5) Contract advertising and award and construction and installation of facilities shall be accomplished in the manner required by the general law for districts and in conformity with commission rules. If substantial compliance with statutory requirements is not achieved, reimbursement to a developer may be limited to the final construction contract amount, or a lesser amount, if more reflective of the actual value of such facilities as may be determined by the commission, without developer interest.(6) The filing of the materials provided herein or construction inspections by the commission shall not constitute approval of the project in any manner. A person proceeding with construction of a project prior to its formal approval by the commission shall do so with no assurance that public funds will be authorized for acquiring the facilities. Construction which is not in the best interests of the district, and improper or ineligible expenditures, will be disallowed for district purchase.(7) The commission will not approve payment on completion-type construction contracts unless alternate bids are received on monthly pay-type construction contracts, and then only if it is clearly indicated that it is to the district's financial advantage to assume the payment on completion-type construction contracts.(8) Commission representatives shall have the right to inspect the facilities construction at any time and without notice while construction activities are being carried on. The appropriate commission field office shall be notified of the date and time of the final inspection for each construction contract at least five days prior to the inspection.</content><note type="source"><p>Source Note: The provisions of this §293.46 adopted to be effective September 5, 1986, 11 TexReg 3736; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective September 14, 2000, 25 TexReg 8955; amended to be effective October 6, 2002, 27 TexReg 9365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.47"><num value="293.47">§293.47</num><heading>Thirty Percent of District Construction Costs to be Paid by Developer</heading><content>(a) It has been determined by experience that some portion of the cost of district water, wastewater, drainage, and recreational facilities in certain districts should be paid by a developer to insure the feasibility of the construction projects of such districts. Accordingly, this section applies to all districts except:(1) a district which has a ratio of debt (including proposed debt) to certified assessed valuation of 10% or less; provided, however, that any bond issue proposed to be exempted on this basis must include funds to provide sufficient capacity in facilities exempted in subsection (d) of this section to serve all connections upon which the feasibility is based or to be financed by the bond issue;(2) a district which obtains an acceptable credit rating on its proposed bond issue pursuant to the provisions hereof;(3) a district which obtains a credit enhanced rating on its proposed bond issue and which the executive director, in his discretion, finds to be feasible and justified, based upon satisfactory evidence submitted by the district, without such developer contribution; or(4) a district which has entered into a strategic partnership agreement, interlocal agreement, or other contract with a political subdivision or an entity created to act on behalf of a political subdivision under which the political subdivision or other entity has agreed to provide sales and use taxes or other revenues generated by a project to the district as consideration for the district's development or acquisition of water, wastewater, and drainage facilities and:(A) water, sewer, drainage, and street and road construction are complete in accordance with §293.59(k)(6)(A) - (E) of this title (relating to Economic Feasibility of Project);(B) the projected value of houses, buildings, and/or other improvements are complete in accordance with §293.59(k)(7) of this title;(C) the district can demonstrate a history of revenue generated by the project;(D) the district's projected ad valorem tax rate necessary to amortize the district's debt at the district's current assessed valuation after accounting for the contract payments pledged to the district's debt would be equal to or less than the projected ad valorem tax rate for a district with an assessed valuation sufficient to qualify under paragraph (1) of this subsection; and(E) the district's combined no-growth tax rate does not exceed the amounts prescribed in §293.59(k)(11)(C) of this title.(b) For purposes of this chapter, the following definitions shall apply:(1) Developer is as defined in Texas Water Code (TWC), §49.052(d);(2) Debt includes all outstanding bonds of the district, all bonds approved by the commission and not yet sold (less such portions thereof for which the authority to issue such bonds has lapsed or been voluntarily canceled), all bonds of the district approved by other entities which are exempt from commission approval and not yet sold, all proposed bonds with respect to which applications for project and bond approvals are presently on file and pending with the commission, and all outstanding bond anticipation notes which are not to be redeemed or paid with proceeds derived from such pending bond application(s). If more than one application for approval of project and bonds is pending, the ratio of debt to value shall be calculated consecutively with respect to each application in the order of filing of each application. For the purpose of this subsection, the amount of such outstanding bond anticipation notes shall be deemed to be the sum of:(A) the principal amount of the bond anticipation notes;(B) the accrued interest thereon; and(C) all bond issuance costs relating to the refunding of such bond anticipation notes, including capitalized interest.(3) Certified assessed valuation is a certificate provided by the central appraisal district in which the district is located either certifying the actual assessed valuation as of January 1, or estimating the assessed valuation as of any other date.(4) Acceptable credit rating is a rating of Baa3 or higher from Moody's Investors Service, Inc., or BBB- or higher from Standard and Poors Corporation or BBB- or higher from Fitch IBCA, which rating is obtained by the district independent of any municipal bond guaranty insurance, guarantee, endorsement, assurance, letter of credit, or other credit enhancement technique furnished by or obtained through any other party.(5) Credit enhanced rating is a rating of Aa or higher from Moody's Investors Service, Inc. or AA or higher from Standard and Poors Corporation, or AA or higher from Fitch IBCA, which rating is obtained by the district by virtue of municipal bond guaranty insurance, furnished by or obtained through any other party; provided, however, that such municipal bond guaranty insurance shall be unconditional, irrevocable, and in full force and effect for the scheduled maturity of the entire bond issue; and provided, further, that payment of the premium on such municipal bond guaranty insurance shall not be made from district funds except through the establishment of the interest rate or premium or discount on such bonds.(c) If a district anticipates receipt of a certified assessed valuation evidencing a debt ratio of 10% or less or an acceptable credit rating, or a credit enhanced rating, as provided in subsection (a) of this section, prior to the bond sale identified in the bond application being considered, the district may, at its discretion, request a conditional waiver to the developer cost participation requirements of this section as follows.(1) At the time the district makes application for approval of its project and bonds, the district may include a written request for a conditional waiver of the 30% developer cost participation requirements of this section to be considered by the commission, which request shall specifically state on which basis the district requests such waiver. The waiver request shall be accompanied by a written statement from the district's financial advisor stating that, in his opinion, the district can reasonably be expected to qualify for either an acceptable credit rating or a credit enhanced rating, and that the district financing is feasible without the developer contribution.(2) Except for districts which have achieved a debt ratio of 10% or less at the time of application, the cost summary in support of any bond application proposed to be exempted by virtue of subsection (a) of this section must show the district bond issue requirement, cash flow, and tax rate with and without the developer contribution.(3) If a conditional waiver is granted by the commission in anticipation of the district obtaining an acceptable credit rating, a credit enhanced rating, or a certified assessed valuation evidencing a ratio of debt to certified assessed valuation of 10% or less, no bonds shall be sold by the district unless such acceptable or enhanced credit rating is obtained or such debt ratio is achieved.(4) If a bond issue is approved on the basis of obtaining an acceptable credit rating, and an acceptable credit rating is not obtained, and if the district wishes to proceed with such bond issue on the basis of an enhanced credit rating, the district shall not issue the bonds unless the district requests and obtains a commission order approving the bonds to be sold with an enhanced credit rating and finding the financing to be feasible without the developer contribution.(5) Upon request by the district, the commission order approving a bond issue without developer contribution may authorize an alternative amount of bonds to be issued with developer contribution in the event compliance with subsection (a) of this section is not achieved. Such order may contain other conditions otherwise applicable to a bond issue requiring developer contribution.(d) Except as provided in subsection (a) of this section or in the remaining provisions of this subsection, the developer shall contribute to the district's construction program an amount not less than 30% of the construction costs for all water, wastewater, drainage, and recreational facilities, including attendant engineering fees and other related expenses, with the following exemptions:(1) wastewater treatment plant facilities, including site costs;(2) water supply, treatment and storage facilities, including site costs;(3) stormwater pump stations associated with levee systems, including site costs;(4) that portion of water and wastewater lines from the district's boundary to the interconnect, source of water supply, or wastewater treatment facility as necessary to connect the district's system to a regional, city, or another district's system;(5) pump stations and force mains located within the boundaries of the district which directly connect the district's wastewater system to a regional trunkline or a regional plant, regardless of whether such line or plant is located within or without the boundaries of the district;(6) segments of water transmission or wastewater trunk lines of districts or other authorities which are jointly shared or programmed to be jointly shared between the district and another political subdivision whether inside or outside of a participating district or authority;(7) water and wastewater lines serving or programmed to serve 1,000 acres or more within the district;(8) drainage channels, levees and other flood control facilities and stormwater detention facilities, or contributions thereto, meeting the requirements of §293.52 of this title (relating to Storm Water Detention Facilities) or §293.53 of this title (relating to District Participation in Regional Drainage Systems), and which are serving or are programmed to serve either areas of 2,000 acres or more or, at the discretion of the commission, areas of less than 2,000 acres, as the commission may deem appropriate to encourage regional drainage projects. Construction cost paid in lieu of such a contribution does not qualify as an exemption unless the facility constructed is itself exempt;(9) land costs for levees or stormwater detention facilities; and(10) alternate water supply interconnects between a district and one or more other entities.(11) lease payments for central plant capacity not included in operating expenses; and(12) the district's financing of recreational facilities costs that do not involve reimbursement to a developer of property in the district as defined by TWC, §49.052(d).(e) A developer will also be required to contribute toward construction costs in districts which are within the limits of a city, except for:(1) facilities that were completed or under construction as of December 1, 1986;(2) districts previously created or in the process of creation which, prior to December 1, 1986, have submitted petitions to the executive director requesting creation; or(3) districts that are providing facilities and services on behalf of, in lieu of, or in place of the city and which have contracted with the city to receive rebates of 65% or more of the city taxes actually collected on property located within the district.(f) The developer's contribution toward construction cost shall be reduced by the amount that the developer is required by a city, state, or federal regulatory agency to pay toward costs that are otherwise eligible for district financing.(g) The developer must enter into an agreement with the district, secured by an escrow of funds in the name of the district, a letter of credit or a deferral of reimbursement of bond funds owed (as provided in subsection (k) of this section) prior to advertisement for sale of the district's bonds specifying that if the construction project is not completed because of the developer's failure to pay its share of construction costs and/or engineering costs within a reasonable and specified period of time, the district may draw upon the financial guarantee to pay the developer's share of construction costs and/or engineering costs. The agreement shall also provide that a default by the developer under the agreement shall be deemed to have occurred if: the letter of credit is not renewed for an additional year at least 45 days prior to its expiration date; or the construction project has not been completed as certified by the district's engineer at least 45 days prior to its date of expiration. The letter of credit must be from a financial institution meeting the qualifications and specifications as specified in §293.56 of this title (relating to Requirements for Letters of Credit (LOC)), must be valid for a minimum of one year from the date of issuance, and should provide that upon default by the developer under the agreement, the financial institution shall pay to the district, upon written notice by the district or the executive director, the remaining balance of the letter of credit. Although such letters of credit provide for payment to the district upon notice by the executive director, the district remains solely responsible for the administration of such letters of credit and for assuring that letters of credit do not expire prior to completion of the construction project(s) specified therein.(h) Actual payment of funds for the district's construction project shall be made by the developer to the district within 10 days following the developer's receipt of billing. The developer's applicable share will be adjusted by the overruns or underruns on developer participation items and will be shared by the developer at the same percentage utilized in determining his initial contribution.(i) The district (or district engineer) shall forward to the commission's executive director copies of the board approved monthly construction contract pay estimates, engineering fee statements and/or other adequate documentation reflecting payment of the developer's required contribution to construction and engineering costs.(j) A district may submit other information and data to demonstrate that all or any part of this section should not apply and/or request that it be waived.(k) If the bond issue includes funds owed the developer in an amount which exceeds that amount required as the developer's contribution and the estimated costs of required street and road construction, the district may request a waiver of the requirement of a letter of credit if the developer enters into an agreement with the district whereby the developer agrees to defer receipt of payment of a sufficient amount of such owed funds until the facilities for which guarantees are required have been completed and certified complete by the district's engineer. Any such agreement shall be made a part of the agreement required by subsection (g) of this section if the funds are being withheld for the developer 30% contribution of construction costs, and if appropriate, such agreement shall be made part of the street and road construction Agreement required by §293.48 of this title, if the funds are being withheld for guaranteeing street and road construction costs.</content><note type="source"><p>Source Note: The provisions of this §293.47 adopted to be effective September 5, 1986, 11 TexReg 3736; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective September 14, 2000, 25 TexReg 8955; amended to be effective October 6, 2002, 27 TexReg 9365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.48"><num value="293.48">§293.48</num><heading>Street and Water, Wastewater and Drainage Utility (Street and Utility) Construction by Developer</heading><content>Except as otherwise provided, unless street and utility construction is completed within the area to be developed by the proposed bond issue, the developer must provide assurance to the satisfaction of the executive director, prior to advertisement for sale of the district's bonds, that such street and utility construction will be completed as hereinafter provided.(1) The developer must enter into an agreement with the district, secured by an escrow of funds in the name of the district, a letter of credit, or a deferral of reimbursement of bond funds owed, specifying that if street and utility construction is not completed within a reasonable and specified period of time after the district sells its bonds, the district may award a contract for completion of the streets and utilities with financing to be accomplished by utilizing the letter of credit; provided, however, the district shall not proceed in such a manner until the executive director, after having given at least ten days' written notice to both the district and the developer, has reviewed the matter, either on the petition of the district or on his own motion and has approved the district's awarding of the contract and utilization of the letter of credit; and provided further, the executive director may extend the time for the developer to complete the streets and utilities if the developer renews the letter of credit and adequately compensates the district for lost revenues and taxes resulting from failure to complete the streets and utilities within the specified time. In the event that the letter of credit has not been renewed or replaced 45 days prior to its expiration date, or in the event that the developer commences any proceeding, voluntary or involuntary, or any proceeding, voluntary or involuntary, is commenced against the developer involving the bankruptcy, insolvency, reorganization, liquidation, or dissolution of the developer, or any receiver is appointed for the developer, or the developer makes a general assignment for the benefit of creditors, the district shall have the immediate right to draw down the lesser of the current cost, as estimated by the district's engineer, to construct the streets and utilities, or the entire remaining balance of the letter of credit. The current estimated costs to construct the streets and utilities shall include construction contract amounts, engineering, surveying and testing fees, and a 10% contingency. The district shall deposit such funds in a separate account and shall not commit or expend such funds until the executive director has authorized use of the funds as provided in this subsection. Within 30 days after final completion of the streets and utilities, the district shall provide an accounting of the use of funds drawn pursuant to the provisions hereof and shall refund any remaining funds, including accrued interest, if any, to the developer or his designee. A district shall not allow any letter of credit to expire, except upon completion of the paving in substantial compliance with the agreement or written approval of the executive director. A copy of the street and utility construction agreement meeting the criteria specified in §293.57 of this title (relating to Form of Street and Utility Construction Agreement), the letter of credit, and any amendments or renewals thereof shall be submitted to the executive director within ten days after their execution or receipt by the district. The letter of credit must be from a financial institution meeting the qualifications as specified in §293.56 of this title (relating to Requirements for Letters of Credit).(2) The developer shall include in the street and utility construction contract a provision that places the responsibility on the contractor for repair and clean-up of broken manholes, buried valve boxes, broken wastewater pipe, and all other damage to district facilities caused by construction of streets and utilities.(3) The district shall charge a district employee or consultant with the responsibility to frequently inspect and conduct operational tests on unused facilities and promptly report:(A) undue facility and equipment deterioration, leaks, silting, infiltration and other problems with utility systems resulting from nonuse; and(B) damage caused by vandalism, or road, street, commercial, industrialand/or housing construction in order to establish responsibility promptly.(4) In instances where a contractor for underground facilities has otherwise satisfactorily completed his contract, except for drainage inlets, manholes, and other adjustments, in accordance with plans and specifications as approved by the commission, and the district has assumed ownership of the contract, but the contractor cannot proceed to completion because of street or road construction delay, the district board of directors may delete the remaining incomplete bid items by change order, accept the construction, and close the contract, provided that the developer agrees in writing:(A) to include the deleted items and adjustments in the street or road construction contract, when accomplished, or in a separate contract, and to pay all construction costs of these items in excess of the original contract price, or the agreed deleted price; and(B) to pay the cost of reasonable measures necessary to initially prepare the district's underground facilities for the anticipated period of nonuse and to pay clean-up costs after nonuse.</content><note type="source"><p>Source Note: The provisions of this §293.48 adopted to be effective September 5, 1986, 11 TexReg 3736; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective September 14, 2000, 25 TexReg 8955.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.49"><num value="293.49">§293.49</num><heading>Document Identification</heading><content>All correspondence, plans, and specifications, monthly pay estimates, and other documents, submitted to the executive director shall be identified by the district's name, related bond issue amount, and date of commission approval.</content><note type="source"><p>Source Note: The provisions of this §293.49 adopted to be effective September 5, 1986, 11 TexReg 3736.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.50"><num value="293.50">§293.50</num><heading>Developer Interest Reimbursement</heading><content>(a) A developer may be reimbursed by a district for interest accrued for a period of up to two years after the final payment by the developer on approved construction pay estimates, professional fees, and attendant nonconstruction costs paid by a developer for providing facilities in anticipation of sale to such district. If final payment on a construction contract is 95% complete, the initiation of the two year interest accrual period will be six months from the date the contract is 95% complete, unless the developer can demonstrate a genuine contractual dispute with the contractor, or other extenuating reasons, as determined by the commission. The interest rate shall not exceed the net effective interest rate on the bonds sold, or the interest rate actually paid by the developer for loans obtained for this purpose, whichever is less. If a developer uses its own funds rather than borrowed funds, the net effective interest rate on the bonds sold shall be applied.(b) If reimbursement for accrued interest for a period of more than two years after the completion date allowed in subsection (a) of this section is requested by a district, and if no interest reimbursement has occurred, additional accrued interest up to five years from the completion date of the construction contracts including related professional fees and nonconstruction costs may be allowed if deemed feasible by the commission, and if:(1) the actual costs incurred by the developer plus the total allowed interest does not exceed present day costs for the facilities at the time of purchase; or(2) the aggregate of the amounts included in such district's bond issue for accrued developer interest for such two-year period, any proposed additional accrued developer interest, any accrued interest on outstanding bond anticipation note(s) of such district, and any capitalized interest on such bond issue does not exceed an amount equal to four years' interest on the total bond issue, said interest rate to be calculated on the basis of the net effective interest rate at which the bonds are actually sold; provided, however, that unless specifically requested by the district, recommended in writing by the district's financial advisor, and approved by the commission, a district bond issue including additional accrued developer interest pursuant to this subsection shall not provide for capitalized interest on such issue for a period of less than one year.(c) The developer shall not be reimbursed for interest accrued on his share of construction costs as required by §293.47 of this title (relating to Thirty Percent of District Construction Costs To Be Paid by Developer).(d) If otherwise determined to be feasible by the commission, time limitations on accrued developer interest shall not apply to:(1) wastewater treatment facilities serving or programmed to serve 2,000 acres or more;(2) water supply and treatment facilities serving or programmed to serve 2,000 acres or more;(3) that portion of water and sanitary sewer lines from the district's boundary to the interconnect, the source of water supply or wastewater treatment facility, when such source of water supply or wastewater treatment facility serves 2,000 acres or more;(4) that portion of water and sanitary sewer lines serving or programmed to serve 1,000 acres or more; or(5) drainage channels, levees and other flood control facilities and stormwater detention facilities meeting the requirements of §293.52 of this title (relating to Storm Water Detention Facilities) and §293.53 of this title (relating to District Participation in Regional Drainage Systems) which are serving or are programmed to serve 2,000 acres or more or at the discretion of the commission, areas less than 2,000 acres, as the commission may deem appropriate to encourage regional drainage projects.(e) These time limitations on accrued developer interest also apply to advances made for necessary organization and operation costs as allowed under §293.44(a)(16) of this title (relating to Special Considerations).</content><note type="source"><p>Source Note: The provisions of this §293.50 adopted to be effective September 5, 1986, 11 TexReg 3736; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective April 15, 1994, 19 TexReg 2301; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.51"><num value="293.51">§293.51</num><heading>Land and Easement Acquisition</heading><content>(a) Water, sanitary sewer, storm sewer, drainage, and recreational facilities easements. All easements required within a district's boundaries for water lines; sanitary sewer lines; storm sewer lines; sanitary control at water plants; noise and odor control at wastewater treatment plants; the right-of-way necessary for a drainage swale or ditch constructed generally along a street or road in lieu of a storm sewer; recreational facilities; and the right-of-way area required by governmental jurisdictions for streets that are used for recreational facilities, shall be dedicated to the district or the public by the developer without payment or reimbursement from the district. If any easements are required for such facilities on land not owned by a developer in the district, the district may acquire such land at its appraised market value, and may also pay legal, engineering, surveying, or court fees and expenses incurred in acquiring such land, and §293.47 of this title (relating to Thirty Percent of District Construction Costs to be Paid by Developer) shall not apply to such acquisition.(b) Land acquisition. A district may acquire the following in fee simple from any person, including the developer, in accordance with this section, and §293.47 of this title shall not apply to such acquisition:(1) plant sites, including required sanitary control at water plants and noise and odor control at wastewater treatment plants;(2) lift or pump station sites;(3) drainage channels other than those described in subsection (a) of this section and other than those which are natural waterways with defined bed and banks;(4) detention/retention pond sites;(5) levees;(6) mitigation sites for compliance with flood plain regulation and wetlands regulation or payments in lieu of mitigation;(7) mitigation sites for compliance with endangered species permits or payments in lieu of mitigation, the cost of which shall be shared between the district and the developer as provided in §293.44(a)(22) of this title (relating to Special Considerations); or(8) recreational facility sites that are outside of the right-of-way required by governmental jurisdictions to be dedicated for streets and roads.(c) Price of land acquisition.(1) If a district acquires such a site, as described in subsection (b) of this section, which is outside of the 100-year floodplain, from a developer within the district or subsequent owner of developer reimbursables, the price shall be determined by adding to the price paid by the developer for such land or easement in a bona fide transaction between unrelated parties the developer's actual taxes and interest paid to the date of acquisition by the district. The interest rate shall not exceed the net effective interest rate on the bonds sold, or the interest rate actually paid by the developer for loans obtained for this purpose, whichever is less. If a developer uses its own funds rather than borrowed funds, the net effective interest rate on the bonds sold shall be applied. Provided, however, if the executive director determines that such price appears to exceed the fair market value of such land or easement, the executive director may require an appraisal to be obtained by the district from a qualified independent appraiser and payment to the seller may be limited to the fair market value of such land as shown by the appraisal; if the seller acquired the land after the improvements to be financed by the district were constructed, the price shall be limited to the fair market value of such land or easement established without the improvements being constructed; or if the seller acquired the land more than five years before the creation of the district and the records relating to the actual price paid and the taxes and interest costs are impossible or difficult to obtain, the district, upon executive director approval, may purchase such site at fair market value based on an appraisal prepared by a qualified, independent appraiser. If the land or easement needed by the district is being acquired based on the appraised value, the application to the commission for approval to purchase such a site must contain a request by the district to acquire the site in such manner and must explain the reason that the seller is unable to provide the price and carrying cost records.(2) If a district acquires such a site, as described in subsection (b) of this section, which is within the 100-year floodplain, from a developer within the district or subsequent owner of developer reimbursables, the price shall be the lesser of the amount as determined by paragraph (1) of this subsection or fair market value based on an appraisal prepared by a qualified, independent appraiser hired by the district's board upon their initiative.(3) If the land or easement needed by the district is being acquired from an entity other than a developer or subsequent owner of developer reimbursables in the district, the district may pay the fair market value established by a qualified, independent appraiser, and may also pay legal, engineering, surveying, or court fees and expenses incurred in acquiring such land or easement.(d) Joint storm water detention/water amenity facilities. If a detention or retention pond is also being used as an amenity by the developer or as a recreational facility as described in §293.44(a)(24) of this title, payment to the developer shall be limited to that cost that is associated only with the drainage or recreational function of the facility. The land costs of combined water amenity and detention facilities should be shared with the developer on the basis of the volume of water storage attributable to each use, with the water amenity portion subject to reimbursement as a recreational facility in the percentage described in §293.44(a)(24) of this title.(e) Land or easements outside the district's boundaries. Land or easements needed for any district facilities outside the district's boundaries may be purchased by the district as part of the district project at a price not to exceed the fair market value thereof. The district may also pay legal, engineering, surveying, or court fees and expenses spent in acquiring such land. If the land or easements are purchased from a developer who owns land within the district, the price paid by the district shall be determined in accordance with subsection (c) of this section and such purchase price shall be subject to the provisions of §293.47 of this title unless the facilities constructed in, on, or over such land, easements, or rights-of-way are exempt from such contribution or the district is exempt from such contribution under the terms of §293.47 of this title. Districts operating under Texas Water Code (TWC), Chapter 54, except one affected by House Bill 2965, 76th Legislature, 1999, are prohibited from exercising the power of eminent domain outside the district's boundaries to acquire:(1) a site for a water treatment plant, water storage facility, wastewater treatment plant, or wastewater disposal plant;(2) a site for a park, swimming pool, or other recreational facility, as defined by TWC, §49.462;(3) an exclusive easement through a county regional park; or(4) a site or easement for a road project.(f) Shared land or easements outside the district's boundaries. If the out-of-district land or easement is required for a drainage channel downstream of the district and a portion of such land or easement is or will be needed by another district(s), whether upstream or downstream, for development, the district shall only pay for its proportionate share of the land costs based upon the acreage of the drainage area contributing drainage to such drainage channel at full development. However, in the event there is no developer in another district(s) to dedicate the district's pro rata share of the required land, the district may pay the entire cost to acquire such land, but the commission shall order the other district(s) to reimburse the district at such time as development occurs in the other district that requires such drainage right-of-way.(g) Regional facilities. A district may use bond proceeds to acquire the entire site for any regional plant, lift or pump station, detention pond, drainage channel, levee, or recreational facility if the commission determines that regionalization will be promoted and the district will recover the appropriate pro rata share of the site costs, carrying costs, and bond issuance costs from future participants. The district may pay the fair market value based on an appraisal for such regional site and also may pay legal, engineering, surveying, or court fees and expenses incurred in acquiring such land. The commission shall, by separate order, order other districts participating in such regional facility to reimburse the acquiring district a proportionate share of such site costs, carrying costs, and bond issuance costs at such time as development occurs in such other districts requiring such regional site.(h) Certification by licensed professional engineer. Prior to the district purchasing or obligating district funds for the purchase of sites for water plants, wastewater plants, or lift or pump stations, the district must have a licensed professional engineer certify that the site is suitable for the purposes for which it intended and identify what areas will need to be designated as buffer zones to satisfy all entities with jurisdictional authority.(i) Joint recreational and drainage/detention sites without a constant level lake. If a drainage/detention site will also be used for recreational facility purposes, the costs are allocated 50% to drainage/detention and 50% to recreational purposes. If the recreational facility site includes an existing drainage/detention easement, then the area used to determine the reimbursement amount for the site excludes the area of the existing easement.(j) Notwithstanding subsections (d) and (i) of this subsection, a district is not required to prorate the costs of a site between the primary water, wastewater, or drainage purpose and any secondary recreational facilities purpose if a licensed professional engineer certifies that the site is reasonably sized for the primary water, wastewater, or drainage purpose pursuant to the provisions of TWC, §49.4641, as amended.</content><note type="source"><p>Source Note: The provisions of this §293.51 adopted to be effective September 5, 1986, 11 TexReg 3736; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective April 15, 1994, 19 TexReg 2301; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective September 14, 2000, 25 TexReg 8955; amended to be effective October 6, 2002, 27 TexReg 9365; amended to be effective May 5, 2005, 30 TexReg 2533; amended to be effective October 26, 2006, 31 TexReg 8699; amended to be effective April 21, 2013, 38 TexReg 2372; amended to be effective November 13, 2014, 39 TexReg 8730.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.52"><num value="293.52">§293.52</num><heading>Storm Water Detention Facilities</heading><content>A district may use bond proceeds to acquire or construct storm water detention facilities, as part of an authorized district project the cost of which shall be subject to developer contribution under the provisions of §293.47 of this title (relating to Thirty Percent of District Construction Costs To Be Paid by Developer) unless the district or the project is exempt under such regulation, provided:(1) the storm water detention facilities are either necessary as an alternative to the drainage channel improvements in that channel improvements will not provide adequate drainage to all or any portion of the land within the district, or cost effective as opposed to alternative drainage improvements, or required by a public entity having drainage jurisdictional responsibility;(2) the facilities are designed and constructed so as to be capable of attenuating only the flood water quantity produced by the differences between the postdevelopment peak rate of runoff and the predevelopment peak rate of runoff, such differential being based on design criteria established by the responsible jurisdictional public entity, if available, unless the local political subdivision with drainage jurisdiction justified to the commission the approval of district costs based on criteria different from this criteria; and(3) all required permits and approvals are obtained prior to construction of the storm water detention facilities, including without limitation, any permits required by the United States Corps of Engineers and any approvals required by any city within whose extraterritorial jurisdiction the district lies, the county engineer, any flood control district, the United States Corps of Engineers, and any necessary approval of the commission under the Texas Water Code, §16.236.</content><note type="source"><p>Source Note: The provisions of this §293.52 adopted to be effective September 5, 1986, 11 TexReg 3736.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.53"><num value="293.53">§293.53</num><heading>District Participation in Regional Drainage Systems</heading><content>A district may use bond proceeds to pay assessments or charges for capacity in regional stormwater management systems, subject to developer contribution under the provision of §293.47 of this title (relating to Thirty Percent of District Construction Costs To Be Paid by Developer), unless the district or the project is exempt under §293.47 of this title (relating to Thirty Percent of District Construction Costs To Be Paid by Developer), provided:(1) the regional stormwater system has been adopted by a public entity having drainage jurisdiction and regulatory authority over the construction of drainage improvements;(2) participation in the regional system is required by the public entity having drainage jurisdiction to mitigate the impact of district development activity on flood potential and is required in lieu of any other drainage facilities within or outside of the district that could be constructed directly by the district for the same purpose;(3) the cost of participation in the regional system is uniform over a given watershed or planning area and is established by the regulatory body of the public entity having drainage jurisdiction based on engineering studies of the proposed regional facilities required. Such studies should show that the charge for capacity in the regional system is comparable to the cost of alternative facilities constructed by individual districts, averaged throughout the watershed; and(4) the right to the capacity in the regional system purchased by the district is established by contract with the public entity having drainage jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §293.53 adopted to be effective September 5, 1986, 11 TexReg 3736.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.54"><num value="293.54">§293.54</num><heading>Bond Anticipation Notes (BANs)</heading><content>A district may issue bond anticipation notes (BANs) for any purpose for which bonds of the district may be issued or for the purpose of refunding previously issued BANs. All BANs issued by a district shall conform to the following requirements.(1) A bond application containing all projects to be financed by the BAN and the principal of and interest on the BAN shall be on file with the commission.(2) The financial advisor of the district renders a written opinion to the district to the effect that, based on the projections contained in the bond application report, the district can be reasonably expected to sell its bonds, under prevailing market conditions existing at the time of the sale of the BAN, in a principal amount at least sufficient to redeem and pay the principal of, and accrued interest on, the BAN on or prior to their stated maturity date.(3) The proceeds of the BAN may be used to pay only the district's allowable share of the costs of facilities as provided in §293.47 of this title (relating to Thirty Percent of District Construction Costs to be Paid by Developer) until the commission has unconditionally determined that the district is exempt from developer participation.(4) The interest rate on the BAN shall be limited to the maximum rate at which the district could have issued bonds on the date of issuance of the BAN pursuant to applicable statute or valid city consent.(5) All BANs shall be sold at par.(6) The proceedings authorizing the issuance of the BAN shall provide that the BAN shall be redeemed at not more than its par value within 30 days after receipt of proceeds from bonds issued for the purpose of redeeming the BAN.(7) No district funds shall be used to purchase bond or BAN insurance, collateral guarantees, letters of credit, or other forms of credit enhancement.(8) No BAN proceeds shall be used for the purpose of paying allowable developer interest, as provided in §293.50 of this title (relating to Developer Interest Reimbursement).(9) Except as hereinafter otherwise provided, BANs shall not be used to finance facilities unless the plans and specifications therefor have been approved by all regulatory authorities having jurisdiction thereof and such plans and specifications have been submitted to the executive director in connection with the district's pending bond application.(10) Issuance of BANs shall not prejudice the right of the commission to refuse to approve all or any portion of a bond application or any cost or facility contained therein.(11) BANs shall be payable solely from the proceeds of the district's bonds, as approved by the commission, and no other district funds shall be encumbered, pledged, committed or used for such purpose.(12) Prior to the issuance of the BAN, the developer shall provide the district a letter of credit, irrevocable development loan commitment, or other guarantee for the applicable contribution of construction and engineering costs for each project to be financed with BAN proceeds as required by §293.47(h) of this title.(13) Prior to the issuance of the BANs, the developer and district shall enter into a street and road construction agreement as required by §293.48 of this title (relating to Street and Water, Wastewater and Drainage Utility (Street and Utility) Construction by Developer), unless exempted or inapplicable pursuant to §293.59(k)(11) of this title (relating to Economic Feasibility of Project).</content><note type="source"><p>Source Note: The provisions of this §293.54 adopted to be effective September 5, 1986, 11 TexReg 3736; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective September 14, 2000, 25 TexReg 8955; amended to be effective November 13, 2014, 39 TexReg 8730.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.55"><num value="293.55">§293.55</num><heading>Tax Anticipation Notes</heading><content>Tax anticipation notes may be issued by districts solely in the manner and for the purposes described in Water Code, §49.154, as amended. No tax anticipation notes shall be redeemed in whole or in part, out of the proceeds of a district bond issue or one or more refunding tax anticipation notes, bond anticipation or revenue notes. Such notes may bear interest as provided by law; shall mature within one year of their date of issuance; shall not be renewable or subject to extension of their maturity or redeemable or refundable out of or exchangeable for additional tax anticipation notes; and shall be secured by and paid solely out of the proceeds of taxes to be levied and collected by the district in the 12-month period succeeding their date of issuance.</content><note type="source"><p>Source Note: The provisions of this §293.55 adopted to be effective September 5, 1986, 11 TexReg 3736; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.56"><num value="293.56">§293.56</num><heading>Requirements for Letters of Credit (LOC)</heading><content>(a) Any LOC submitted as a financial guarantee for combined amounts greater than $10,000 and less than $250,000 pursuant to these rules must be from financial institutions which meet the following qualifications: (1) Qualifications for Banks. (A) Must be federally insured; (B) Sheshunoff rating must be ten or better; and (C) Total assets must be at least fifty million dollars. (2) Qualifications for Savings and Loan Associations. (A) Must be federally insured; and (B) Tangible capital must be at least: (i) 1.5% of total assets if total assets are fifty million dollars or more; or (ii) Tangible capital must be at least 3.0% of total assets if total assets are less than fifty million dollars; and (C) Sheshunoff rating must be 30 or better. (b) Any LOC submitted as a financial guarantee for combined amounts greater than $250,000 pursuant to these rules must be from financial institutions which meet the following qualifications: (1) Qualifications for Banks. (A) Must be federally insured; (B) Sheshunoff rating must be 30 or better; and (C) Total assets must be at least seventy-five million dollars. (2) Qualifications for Savings and Loan Associations. (A) Must be federally insured; (B) Tangible capital must be at least: (i) 3.0% of total assets and total assets must be seventy-five million dollars or more; or (ii) Tangible capital must be at least 5.0% of total assets if total assets are less than seventy-five million dollars; and (C) Sheshunoff rating must be 30 or better. (c) All LOC's must be valid for a minimum of one year from the date of issuance and if the aggregrate amount of the LOC is $100,000 or more, the LOC shall be held and administered in an account for the benefit of the district by a bank corporate trust department. The district shall authorize the agent to administer all draws on the letter of credit including a final draw prior to the LOC expiration date if the letter of credit is: (1) not renewed for an additional year at least 45 days prior to its date of expiration; (2) not called upon in its entirety at least 30 days prior to its date of expiration; (3) not found to be unnecessary by the commission at least 45 days prior to its date of expiration; or (4) no longer required because the construction project has been completed as certified by the district's engineer at least 45 days prior to its date of expiration. (d) Should the financial institution or agent deposit funds in an account in the name of the district, the district shall not commit or expend such funds until it has received written authorization from the executive director. (e) All LOC's required pursuant to these rules must be approved by the commission staff. (f) Form of letter of credit. The following form shall be used as a letter of credit for the financial guarantee for utilities construction and/or construction and paving of streets. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §293.56 adopted to be effective September 5, 1986, 11 TexReg 3736; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective April 15, 1994, 19 TexReg 2301; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective October 6, 2002, 27 TexReg 9365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.57"><num value="293.57">§293.57</num><heading>Form of Street and Utility Construction Agreement</heading><content>The following form is sufficient for use as a contract between the developer and the district for street construction and paving and may be adapted to utilities construction.</content><note type="source"><p>Source Note: The provisions of this §293.57 adopted to be effective September 5, 1986, 11 TexReg 3736; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.58"><num value="293.58">§293.58</num><heading>Interest Rate on Bonds</heading><content>(a) All bonds approved by the commission shall be deemed fixed rate unless the commission order specifically provides otherwise.(b) The commission will consider variable rate, variable rate demand, or other bonds on which the interest rate is not permanently fixed on the date of sale only for districts that have a ratio of assessed valuation to debt of at least 20 to 1. A district proposing to issue bonds other than with fixed rates shall submit:(1) a plan of financing specifying all major terms of the plan;(2) calculations prepared by the district's financial advisor showing tax rate required under the maximum interest rate allowed under the plan; and(3) a resolution of the board of directors acknowledging the tax rate required under the maximum interest rate allowed under the finance plan and the district's willingness to levy such a tax if required.(c) All bonds must be sold in compliance with the applicable statutes relating to public notice and competitive bids.</content><note type="source"><p>Source Note: The provisions of this §293.58 adopted to be effective September 5, 1986, 11 TexReg 3736.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.59"><num value="293.59">§293.59</num><heading>Economic Feasibility of Project</heading><content>(a) In addition to determining the engineering feasibility of a project, the commission shall also determine the economic feasibility of each proposed bond issue, bond amendment, and extension of time application for a bond issue. The staff of the commission shall use the following sections in making economic feasibility analysis. In its written recommendations to the commission, which analyze the particular application, the staff shall always address the economic feasibility. (b) Economic feasibility is the determination of whether the land values, existing improvements, and projected improvements in the district will be sufficient to support a reasonable tax rate for debt service payments for existing and proposed bond indebtedness while maintaining competitive utility rates. Utility rates that do not exceed the rates of the largest city in the geographic area in which the district is located are conclusively deemed to be competitive. Economic feasibility is influenced by many factors and varies widely depending on economic conditions, the real estate market, the number of competing projects, and geographic location. (c) Projected debt service tax rate is the tax rate required to meet the projected annual debt service requirement using projected assessed valuations and an appropriate tax collection rate. The projected annual debt service requirement shall include the previous and proposed debt. The projected debt service tax rate for any bond issue shall be shown in the cash flow table as a level or decreasing tax rate. (d) No-growth debt service tax rate is the tax rate required to meet projected annual debt service requirements using the current assessed value and a 100% tax collection rate. The current value is determined by either: (1) the most recent certificate of assessed valuation from the central appraisal district; or (2) a certificate of estimated assessed valuation from the central appraisal district. Projected annual debt service requirements shall include the previous and proposed debt. The no-growth debt service tax rate for any bond issue shall be shown on the cash flow table as a level or decreasing tax rate. (e) Combined no-growth tax rate is the sum of the following: (1) no-growth debt service tax rate of the district; (2) projected no-growth debt service tax rate of all overlapping entities specifically attributable to water, wastewater, drainage, or recreational facilities that are smaller in size than a county, and for roads if the entity is a road district or road utility district smaller in size than a county commissioner's precinct. (In other words, for road districts or road utility districts that are as large as one county commissioner's precinct, the road district tax is not counted.); (3) an equivalent surcharge tax rate for water and wastewater surcharge, if any; (4) city tax rate specifically attributable to water, sewage, drainage, and recreational facilities if the district is located within a city; (5) current or proposed district or overlapping maintenance tax levy, if any; (6) contract tax, if any; and (7) less any equivalent tax rebate or other payments. (f) Combined projected tax rate is the sum of the following: (1) projected debt service tax rate of the district; (2) projected debt service tax rate of all overlapping entities specifically attributable to water, wastewater, drainage, recreational facilities, and for roads if the entity is a road district or road utility district smaller in size than a county commissioner's precinct; (3) an equivalent surcharge tax rate for water and wastewater surcharge, if any; (4) city tax rate specifically attributable to water, sewage, drainage, and recreational facilities if the district is located within a city; (5) current or proposed district or overlapping maintenance tax levy, if any; (6) contract tax, if any; and (7) less any equivalent tax rebate or other payment. (g) A surcharge is a flat charge in addition to rates imposed on residents receiving water and/or wastewater service from resources of a city or other entity and supplied through district facilities. Surcharge revenues are placed in the district's debt service fund and are intended to be used to meet the debt service requirement on the district's bonds. (h) For districts collecting surcharge revenues, the equivalent surcharge tax rate shall be calculated as follows.(1) For residential development with similar house prices:Attached Graphic(2) For mixed-use development and diverse house prices:Attached Graphic(3) For purposes of this calculation, no adjustments shall be made for projected collection rate of the surcharge, interest earnings on the surcharge account, or other factors. (i) For districts receiving a rebate for taxes paid to a city or other entity for water, wastewater, drainage, recreational, or road service, the equivalent tax rebate shall be calculated as follows:Attached Graphic(j) The assessed value is the appraised value after considering exemptions and special valuations and is the amount to which the tax rate is applied to determine the total tax levy. (k) For a district's first bond issue, the following paragraphs apply except that paragraphs (5), (6), (8), and (10) of this subsection are only applicable to a district that has a developer as defined by Texas Water Code (TWC), §49.052(d).(1) The district shall provide the current and projected tax rates of all entities levying or proposing to levy taxes on land within the district and a comparison of such taxes with the total tax levy on all competing projects in the same market area, as defined in the market study, if applicable, shall be provided. (2) A cash flow analysis to determine the projected debt service revenue and projected tax rate shall be provided. It should include the following assumptions. (A) Each ending debt service balance in the cash flow analysis will be not less than 25% of the following year's debt service requirement. (B) Interest income will only be shown on the ending debt service balance for the first two years. (C) A 90% tax collection rate shall be used in all the projected tax rate calculations and a 100% tax collection rate shall be used in the no-growth tax rate calculations. (D) The projected tax rate shall be level or decreasing for the life of the bonds. (3) The combined projected tax rate must not exceed the following: (A) $1.50 in Chambers, Harris, Galveston, Montgomery, Fort Bend, Waller, and Brazoria Counties; (B) $1.20 in Dallas, Denton, Collin, Tarrant, Travis, Hays, Williamson, Comal, and Guadalupe Counties; or (C) $1.00 in all other counties. (4) The combined no-growth tax rate must not exceed the following: (A) $2.50 in Chambers, Harris, Galveston, Montgomery, Fort Bend, Waller, and Brazoria Counties; (B) $2.20 in Dallas, Denton, Collin, Tarrant, Travis, Hays, Williamson, Comal, and Guadalupe Counties; or (C) $2.00 for all other counties. (5) The following apply to the central appraisal district certificate. (A) If the valuations contained in the certificate of certified assessed valuation are at least 25% higher than those contained in the previous year's certified valuation, a written explanation from the district of such increase and a detailed calculation demonstrating how the value was derived shall be provided. (B) In determining the projected or no-growth tax rates, a certificate of estimated assessed valuation may be used under the following conditions: (i) the developer or landowner to receive bond proceeds shall certify, represent, and agree that it will not challenge and attempt to reduce its valuations below the values shown on the certificate for the life of the bonds; (ii) if the valuation contained in the certificate of estimated taxable valuation is at least 25% higher than that contained in the most recent certified valuation, a written explanation from the district of such increase shall be provided; (iii) if the estimated taxable valuation results in an exemption from §293.47 of this title (relating to Thirty Percent of District Construction Costs To Be Paid by Developer) and the final certificate of taxable value is not sufficient for an exemption from that section, the developer will be obligated to refund to the district the difference in the bond issue requirement without developer contribution and with developer contribution plus interest at the bond interest rate to the district; and (iv) developed land values will not be used in the commission's analysis for lots that do not have completed water, wastewater, and drainage facilities and roads constructed to county or city standards, as applicable, at the time of development. (6) At the time of commission approval, the following shall apply: (A) all underground water, wastewater, and drainage facilities to be financed with proceeds from the proposed bond issue or necessary to serve the projected build-out used to support the feasibility of the subject bond issue, shall be at least 95% complete as certified by the district's engineer; (B) all groundwater, surface water, waste discharge permits, or other permits needed to secure capacity to support the projected build-out shall have been obtained; (C) sufficient lift station, water plant, and sewage treatment plant capacity, as applicable depending on the type of district, to serve the connections projected for a period of not less than 18 months shall be either 95% complete as certified by the district's engineer or available in existing plants in accordance with executed contracts for capacity in plant(s) owned by other entities (but in no event less than 50,000 gallons per day water plant and sewage treatment plant capacity); (D) water supply, lift station, and wastewater treatment capacity needed to support the projected build-out used to support the feasibility of the subject bond application must be existing or funds for that capacity must be included in the bond issue or secured by a letter of credit or other acceptable guarantees approved by the executive director; and (E) all street and road construction to provide access to the areas provided with utilities to be financed with proceeds from the proposed bond issue, or necessary to serve the projected build-out used to support the feasibility of the subject bond issue, must be 95% complete as certified by the district's engineer. All streets and roads shall be constructed in accordance with city or county standards, as appropriate. (7) At least 25% of the projected value of houses, buildings, and/or other improvements shown in the projected tax rate calculations must be completed prior to advertising for the bond issue. The projections used to satisfy this section shall also be used in the calculations required by paragraphs (2) and (3) of this subsection. (8) For bonds supported by taxes, a written agreement must be executed between the district and the developer and any other landowner and their respective lenders receiving proceeds of the bonds that permanently waives the right to claim agricultural, open-space, timberland, or inventory valuation for any land, homes, or buildings that they own in the district with respect to taxation by the district. The agreement shall be binding for 30 years on such developer, other landowners, their respective lenders, any related or affiliated entities, and their successors and assignees, unless such exemptions were in effect at the time of the commission's approval of the bond issue and such exemptions were shown in the projected tax rate calculations. Such developer, landowners, and lenders shall record covenants running with the land to such effect, which shall not be modified or released without written authorization of the commission, and shall provide recorded copies to the commission at the time of filing a bond application. If written agreements by owners of developable property who are not receiving bond proceeds are not voluntarily provided, and the ratio of the assessed valuation of their property to the district's total certified assessed valuation exceeds 10% for any individual or 20% for all combined, the feasibility analysis of the bond issue will be based on a reduced value for such property if not already on the tax rolls at a minimal value. (9) One or more of the requirements in paragraphs (1) - (8) of this subsection may be waived for good cause by commission order if all of the facilities proposed under a bond issue application are essential because of valid orders, permits, or actions against the district by a governmental agency or court. If only a portion of the bond issue is for facilities essential because of valid orders, permits, or actions against the district by a governmental agency or court and if a waiver of any of the requirements is requested, all nonessential projects may be deleted from the bond issue if not feasible under the other provisions of these rules.(10) A current market study is required for districts using growth projections to support the feasibility of the bond issue. The market study will meet the guidelines set out in the Bond Application Report Format. The market study provided will specifically address the projected building program for the three years subsequent to filing of the bond application and the period of projected build-out shown in the bond application and the competing projects in the surrounding market area. The study must contain a detailed description of the proposed development and the houses, buildings, and other improvements that are proposed. (11) Requirements of paragraph (6)(A), (C), and (E) of this subsection, and the requirements of paragraph (7) of this subsection shall not apply in the following cases where: (A) the no-growth tax rate for a district containing 2,000 acres or more providing only drainage facilities does not exceed $1.30; the no-growth tax rate of a district providing major water and sewage facilities that it finances by the issuance of its bonds to an area containing 2,000 acres or more does not exceed $1.30, and the combined no-growth tax rate does not exceed $2.00; and, the developer has completed a substantial amount of major thoroughfare or other infrastructure to serve the district; (B) the district has an acceptable credit rating as defined in §293.47(b)(4) of this title or a credit enhanced rating as defined in paragraph (5) of this subsection; or (C) the district is providing water, wastewater, and drainage facilities and the combined no-growth tax rate of all overlapping entities specifically attributable to water, sewage, drainage, recreational facilities, and roads if the entity is a special district encompassing less than one county commissioner's precinct, if any, does not exceed the following: (i) $1.50 in Chambers, Harris, Galveston, Montgomery, Fort Bend, Waller, and Brazoria Counties; (ii) $1.20 in Dallas, Denton, Collin, Tarrant, Travis, Hays, Williamson, Comal, and Guadalupe Counties; or (iii) $1.00 in all other counties. (D) for the exceptions in subparagraph (A) or (C) of this paragraph, the developer shall provide a guarantee for its 30% share of utilities, if required under §293.47 of this title, in the form and manner required by §293.47(g) of this title; (E) for utilities that are not funded and not complete but necessary to support the feasibility of the bond issue, the developer shall provide a guarantee for 100% of utilities for the exceptions in subparagraphs (A), (B), or (C) of this paragraph in the form and manner required by §293.47(g) of this title; (F) for the exceptions in subparagraph (B) or (C) of this paragraph, the developer shall provide a paving guarantee under §293.48 of this title (relating to Street and Utilities Construction by Developer); or (G) for the exceptions in subparagraph (A) of this paragraph, financial guarantees for the internal subdivision utilities and streets are not required. (l) For a district's second and subsequent bond issues, subsection (k) of this section shall apply, and the following shall apply except that only paragraph (1) of this subsection applies to districts that do not have a developer as defined by TWC, §49.052(d), or to districts that meet the criteria set out in subsection (k)(11) of this section. (1) A 90% tax collection rate shall be used in the projected tax rate calculations unless the district demonstrates that its historical collection rate is higher, and a 100% tax collection rate shall be used in the no-growth tax rate calculations. (2) The water, wastewater, and drainage facilities financed by the district under previous bond issues and all road and street construction to serve such connections shall be at least 95% complete as certified by the district's engineer. (3) Sufficient lift station, water plant, and sewage treatment plant capacity to serve the connections shown in the tax rate calculations submitted in prior bond issues shall be at least 95% complete as certified by the district's engineer, unless the district is a participant in a regional surface water or wastewater plant, a permit sufficient for the expansion has been issued, and either: (A) funds are available to finance such capacity and any additional capacity necessary for a feasible expansion; (B) sufficient capacity is contractually available to serve all such prior connections; or (C) the plant is under construction with sufficient capacity to serve all such prior connections. (4) Houses and/or buildings equal to 75% of the projected buildout used in the projected tax rate calculations contained in all prior bond issues shall be completed and may be located on either: (A) the area developed from the proceeds of the prior bond issues; or (B) a combination of the area developed from the proceeds of prior bond issues, the proposed bond issue, and future bond issues. (5) The requirements of subsection (k)(10) of this section shall apply, unless the district requests and the commission, in its discretion waives such requirement for one of the following reasons: (A) disregarding those areas that had growth projected and were financed in previous bond issues, at least 50% of the value of the houses and/or buildings shown in the build-out schedule and used in the projected tax rate calculations supporting the subject bond issue must be existing; (B) the district anticipates receiving an acceptable credit rating as defined in §293.47(b)(4) of this title or a credit enhanced rating as defined in §293.47(b)(5) of this title, and such rating must be obtained prior to the sale of bonds; or (C) the district has a ratio of debt to assessed valuation as provided in §293.47(a)(1) of this title. (m) Bond issues supported only by revenue from a defined area must be analyzed to assure that the defined area meets the requirements of this section independently of the remainder of the issuing district. (n) A district may request a variance if it does not meet the guidelines contained in subsections (k) and (l) of this section, and a majority of the district's board of directors finds by resolution that the district will be justified in requesting a variance. The district will be responsible for providing sufficient documentation to justify any request for a variance. The commission will only grant variances in exceptional cases and may deny any request for a variance. The commission shall not grant a variance to the maximum combined projected tax rate or the maximum combined no-growth tax rate specified in subsection (k) of this section for districts that have a developer and the district is financing 100% of construction costs under the criteria set out in §293.47(a) of this title, which would otherwise require 30% developer participation. In determining whether to grant a variance, the following factors shall be considered: (1) the degree of variation from the guidelines; (2) the past history of the district with respect to its projections versus actual build-out and compliance with commission rules; (3) the past history of the developer and related or affiliated entities with respect to its projections versus actual build-out and its compliance with commission rules and agreements with the district and other districts in which it developed land; (4) other factors peculiar to the district, such as the area in which situated, economic factors, the adjoining competitive developments, and their status; (5) the financial resources of the developer and its lender and any special commitments, obligations, or expenditures for the project; (6) past history of the market area in which the project is located; and (7) other factors that may affect the feasibility of the project.</content><note type="source"><p>Source Note: The provisions of this §293.59 adopted to be effective August 9, 1989, 14 TexReg 3572; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective April 15, 1994, 19 TexReg 2301; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective September 14, 2000, 25 TexReg 8955; amended to be effective October 6, 2002, 27 TexReg 9365; amended to be effective May 5, 2005, 30 TexReg 2533; amended to be effective April 2, 2023, 48 TexReg 1641.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.60"><num value="293.60">§293.60</num><heading>Conditional Approval Based on Performance of a Developer in Other District Projects</heading><content>(a) The commission, in evaluating an application by a district for approval to reimburse construction funds to a developer, may consider the performance of the developer or related or affiliated entities in other district projects and may condition reimbursement on certain actions of the developer or related or affiliated entities.(1) Issues which may be considered in evaluating the performance of a developer may include the past history of the developer and related or affiliated entities with respect to:(A) payment of financial obligations including taxes, standby fees and other user fees to any district;(B) devaluation of property values by claiming special exemptions within any district after the commission's approval of bonds in said district without compensating agreements with the district;(C) compliance with commission rules and orders; and(D) performance under agreements with any district including, but not limited to, cost sharing and maintenance agreements, street and road construction agreements, 30% cost participation agreements, and financial guarantees.(2) Actions of a developer or related or affiliated entity on which reimbursement of construction funds to a developer may be conditioned include:(A) payment of financial obligations including taxes, standby fees and other user fees to any district to which they are owed;(B) withdrawal of a claim of special exemption which resulted in the devaluation of property in any district after the commission's approval of bonds for said district or the execution of compensating agreements for the district;(C) compliance with commission rules and orders; and(D) performance under existing agreements with any district including, but not limited to, cost sharing and maintenance agreements, street and road construction agreements, 30% cost participation agreements, and financial guarantees.(b) For the purposes of this section "developer" means "developer of property in the district" as defined by Water Code, §49.052(d) and its lienholder if it is in default.(c) For the purposes of this section "related or affiliated entities" means any entity owned in whole or majority part by the developer but does not include development lenders unless they are joint venture partners with the developer in such districts.(d) In response to a written request, the district shall submit to the executive director information regarding the developer or related or affiliated entities, including, but not limited to, the names of principals, individuals, affiliated entities and lienholders to aid the commission's evaluation of the past history of the developer.</content><note type="source"><p>Source Note: The provisions of this §293.60 adopted to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scE/s293.61"><num value="293.61">§293.61</num><heading>Bond Related Documents To Be Submitted to the Commission</heading><content>Every district required to obtain commission approval of its projects relating to the issuance and sale of bonds as indicated in §293.41 of this title (relating to Approval of Projects and Issuance of Bonds), is required to submit the following bond related reports and/or documents:(1) If the commission directs funds from the bond issue to be escrowed, a certified copy of the executed escrow agreement with an authorized financial institution of the district's choice shall be submitted within five days of that transaction.(2) The district shall submit to the executive director a copy of the final official statement within 30 days after the final official statement is issued. The executed contract for the sale of the bonds and debt service schedule shall be submitted to the executive director within 30 days after execution of the contract.</content><note type="source"><p>Source Note: The provisions of this §293.61 adopted to be effective October 22, 1996, 21 TexReg 9905.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scF"><num value="F">SUBCHAPTER F</num><heading>DISTRICT ACTIONS RELATED TO CONSTRUCTION PROJECTS AND PURCHASE OF FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scF/s293.62"><num value="293.62">§293.62</num><heading>Construction Related Documents To Be Submitted to the Agency</heading><content>Every district required to obtain commission approval of its projects relating to the issuance and sale of bonds as indicated in §293.41 of this title (relating to Approval of Projects and Issuance of Bonds), is required to submit the following construction related reports and/or documents:(1) Within 10 days after construction contract execution, the district shall furnish to the appropriate agency field office true copies of the following documents:(A) notice to contractors (advertisement affidavit for bids);(B) addenda to plans and specifications;(C) bid tabulation;(D) engineer's letter recommending award of contract;(E) executed contract and bid proposal documents with bonds; and(F) notice to proceed (submit copy when issued).(2) As the construction progresses, provide to the appropriate agency field office:(A) engineer's monthly construction progress reports and monthly pay estimates for contract partial payments within 10 days after payment;(B) copies of proposed change orders;(C) copies of infiltration/exfiltration tests for wastewater lines and test results of water lines prior to final construction inspection;(D) notice of date and time of final inspection at least five days prior to the inspection;(E) engineer's certification of completion for each construction contract within 10 days of the project acceptance; and(F) letter of acceptance by owner within 10 days after project acceptance.(3) At the time the district requests approval for funding of the project from the commission or executive director and subsequently thereafter as appropriate, the district shall provide to the executive director copies of the items listed in paragraphs (1) and (2) of this section.</content><note type="source"><p>Source Note: The provisions of this §293.62 adopted to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scF/s293.63"><num value="293.63">§293.63</num><heading>Contract Documents for Water District Projects</heading><content>Contract documents for water district construction projects shall be prepared in general conformance with those adopted and recommended by the Texas Section of the American Society of Civil Engineers (latest revision). The following specific requirements must apply, unless otherwise provided by a district's special law.(1) All contract documents shall be prepared in such a manner as to promote competitive bidding and to ensure that all bids are prepared on a common basis.(2) The instruction to bidders section of the contract documents shall give special attention to the following items.(A) The basis of award shall be clearly defined. If alternate proposals are to be considered, the instructions to bidders shall clearly state in which order the alternates will be considered in determining the most advantageous bid. If two or more contracts are to be awarded, the instructions to bidders shall clearly indicate if combined bids, or tied bids, will be allowed, or if each contract will be awarded separately.(B) The contract should clearly provide that alternate bids will not be considered, unless specifically allowed by instructions to bidders and requested in the proposal form.(C) Specific notice shall be given that qualifying statements or accompanying qualifying letters will be cause for rejection of the bid.(D) Provision shall be made for prospective bidders to request additional information, explanations, or interpretations regarding contract documents prior to the bid opening. All requests and answers to all such requests shall be given in writing. Answers will be in addendum form to all prospective bidders.(3) The district shall require the bidder to whom the district proposes to award the contract to submit a statement of qualifications. The statement shall include such data as the district may reasonably require to determine whether the contractor is responsible and capable of completing the proposed project.(4) For contracts over $50,000, the district shall require bidders to submit certified or cashier's checks or a bid bond issued by a surety legally authorized to do business in this state in an amount of at least 2.0% of the total amount of the bid. For a contract greater than $250,000, the district must accept a bid bond if it meets all requirements. If cashier's checks are required, the checks for all bidders except the three most qualified bidders shall be returned within three days of the bid opening.(5) The district shall require that bidders submit, along with the bid, the name of the person, firm, or corporation that will execute payment and performance bonds.(6) The district may establish criteria for acceptability of the surety company issuing payment and performance bonds including, but not limited to:(A) authorization to do business in Texas; and(B) authorization to issue payment and performance bonds in the amount required for the contract and:(i) a rating of at least B from Best's Key Rating Guide; or(ii) if the surety company does not have any such rating due to the length of time it has been a surety company, the surety company must demonstrate eligibility to participate in the surety bond guarantee program of the United States Small Business Administration and must be an approved surety company listed in the current United States Department of Treasury Circular 570. Such performance and payment bonds shall meet the criteria contained in the rules and regulations promulgated by the United States Department of Treasury with respect to performance and payment bonds for federal jobs, including specifically the rules related to the underwriting limitation. The district shall satisfy itself that such surety company and bonds meet such criteria.(7) The district shall satisfy itself that all persons executing the bonds are duly authorized by the laws of the State of Texas and the surety company to do so.(8) For contracts over $75,000, a district's board shall advertise the project once a week for two consecutive weeks. For contracts over $25,000 but not more than $75,000, a district's board shall solicit written competitive bids on the project from at least three bidders. For contracts not more than $25,000, a district's board is not required to advertise or seek competitive bids.(9) A board of a special law district may elect to contract in accordance with the requirements in Texas Water Code, §49.273, even if those requirements conflict with provisions in the district's special law.(10) A district with a population of more than 100,000 may utilize the design-build procedure for limited projects as provided in Local Government Code, Chapter 271, Subchapter J.</content><note type="source"><p>Source Note: The provisions of this §293.63 adopted to be effective September 5, 1986, 11 TexReg 3745; amended to be effective August 5, 1988, 13 TexReg 3638; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective July 31, 2008, 33 TexReg 5936; amended to be effective November 13, 2014, 39 TexReg 8730.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scF/s293.64"><num value="293.64">§293.64</num><heading>Control of Work</heading><content>The governing board shall have control of contracts for construction work being done for the district, and shall direct the district's engineer to provide a qualified project representative to perform periodic or continuous on-site observation of the progress and quality of the executed work to determine if construction is in substantial accordance with and includes all items in plans and specifications approved by the executive director. The scope of work and construction schedules shall govern the amount of on-site observation that is necessary to effectively monitor construction activities. The governing board shall authorize the services of a resident project representative if necessary to further protect the district against defects and deficiencies in construction. The responsibility for determining the optimum amount of on-site observation should remain with the consulting engineer who is required during the progress of the construction work to submit to the governing board and the executive director detailed written reports showing whether or not the contractor is complying with the contract.</content><note type="source"><p>Source Note: The provisions of this §293.64 adopted to be effective September 5, 1986, 11 TexReg 3745; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scF/s293.65"><num value="293.65">§293.65</num><heading>Commission Inspection</heading><content>The executive director or his designated representative may inspect a district construction project at any time. When individual contracts for construction are substantially complete, the engineer for the district will notify the agency's regional office of date and time of final inspection. The engineer will conduct, in company with the owner or his representative, a final inspection of the work for conformance with the design concept and compliance with the contract documents. The district shall not accept the project or release the statutory retainage on partial payments until work is determined to be in substantial compliance with plans and specifications as approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §293.65 adopted to be effective September 5, 1986, 11 TexReg 3745; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scF/s293.66"><num value="293.66">§293.66</num><heading>Construction Deficiencies</heading><content>If inspection by the executive director reveals construction deficiencies in facilities being installed, the engineer shall be notified of such deficiencies. Upon verification of deficiencies, the engineer for the district shall issue notice to the contractor. If the executive director finds that the construction deficiencies are not corrected and/or the project is not being constructed in accordance with approved plans and specifications, it shall give written notice immediately by certified mail to each member of the board of the district and the district's manager. If within 10 days after the notice is mailed, the board does not take steps to insure that the project is being constructed in accordance with approved plans and specifications, the executive director shall give written notice of this fact to the attorney general of Texas.</content><note type="source"><p>Source Note: The provisions of this §293.66 adopted to be effective September 5, 1986, 11 TexReg 3745.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scF/s293.67"><num value="293.67">§293.67</num><heading>Project Completion and Acceptance by District</heading><content>(a) Upon completion of the project, the district's engineer shall submit to the governing board a final detailed report including revised contract "as built" drawings showing the work as actually constructed, and the engineer shall certify to the executive director that the work was substantially completed in accordance with and includes all items in plans and specifications submitted to, or approved by the executive director.(b) Prior to accepting facilities for operation and maintenance, the district shall adopt rules as required by §293.112 of this title (relating to Water, Wastewater and Drainage Facilities).</content><note type="source"><p>Source Note: The provisions of this §293.67 adopted to be effective September 5, 1986, 11 TexReg 3745; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scF/s293.68"><num value="293.68">§293.68</num><heading>Document Identification</heading><content>All bond related documents submitted to the executive director should be properly labeled in the upper right hand corner of the cover page with the name of the district, amount of bonds approved which included funding for the project and the date of approval. If the project is to be funded by a future bond issue, state "future bond issue" under the name of the district.</content><note type="source"><p>Source Note: The provisions of this §293.68 adopted to be effective September 5, 1986, 11 TexReg 3745; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scF/s293.69"><num value="293.69">§293.69</num><heading>Purchase of Facilities</heading><content>(a) A district shall not purchase facilities financed or constructed by a developer, investor owned utility or water supply corporation in contemplation of sale to the district or assume facility contracts from the developer or reimburse the developer, investor owned utility or water supply corporation for funds advanced to finance construction of facilities until the executive director has given written authorization to finalize the purchase or reimbursement. Prior to requesting authorization to purchase, the district shall require its engineer to inspect the facilities and provide a written report of the condition of the facilities as they relate to the plans and specifications and note any deficiencies. A copy of the report must be submitted to the executive director along with the request for authorization to purchase. The executive director may inspect the facilities. Subject to the requirements contained in this subsection, the executive director shall issue his written approval or disapproval of such proposed purchase within 30 days after receipt of written request from a district or a district's authorized representative. If substantial deficiencies are found, the executive director may require the district to obtain an appraisal reflecting the adjusted value of the deficient facilities or deny purchase until repairs are made. The written approval shall be valid for 120 days.(b) If the purchase of facilities or reimbursement of funds to the developer, investor owned utility or water supply corporation is not completed within 120 days after the date of the executive director's written approval, the district shall again obtain the written approval as provided herein.(c) If the purchase is for existing facilities which have no active meters or connections (dormant), the following shall apply:(1) water lines shall be flushed and disinfected to meet minimum standards as outlined in §290.44(f) of this title (relating to Sanitary Precautions and Disinfection);(2) water lines must have been pressure tested within the two years prior to the purchase; and(3) for wastewater lines, an infiltration, exfiltration, or low-pressure air test is recommended and may be required if the line has been dormant for the previous 12 months.(d) The inspection of all underground lines should include a visual inspection above ground for depressions or sinkholes.(e) The seller of the facilities shall be responsible for cleaning out all pipes, inlets or manholes, and outfalls which are not properly operating.(f) The district shall not be responsible for the cost of repairs needed as a result of negligence or improper construction.(g) Costs for testing of the facilities may be eligible for reimbursement by the district upon commission approval.(h) This section is applicable whether a district intends on operating facilities itself or intends on conveying the facilities to a third party; however, if the conveyance is to a municipality in whose limit or extraterritorial jurisdiction the district is located, the municipality assumes all costs of operation, repair, and maintenance, and the municipality has indicated in writing to the district that it waives any requirement for an inspection under this section, then this section is not applicable.</content><note type="source"><p>Source Note: The provisions of this §293.69 adopted to be effective September 5, 1986, 11 TexReg 3745; amended to be effective April 15, 1994, 19 TexReg 2301; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective October 26, 2006, 31 TexReg 8699.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scF/s293.70"><num value="293.70">§293.70</num><heading>Audit of Payments to Developer</heading><content>(a) Prior to the payment of funds to a developer from bond proceeds, bond anticipation note proceeds, funds to be derived from future bond proceeds, or maintenance tax revenue the governing board of directors of the district shall engage an auditor to perform certain agreed upon procedures applicable to all items and amounts for which a reimbursement request has been received. The auditor must be a certified public accountant or public accountant holding a permit from the Texas State Board of Public Accountancy.(b) As a minimum, the following procedures shall be included to the extent applicable.(1) All documentation supporting items, amounts, and proof of payment for which reimbursement is requested shall be reviewed.(2) Interoffice memoranda, orders, and rules of the commission relative to the reimbursement request shall be reviewed.(3) The calculations of interest on amounts reimbursable are to be tested and determined to be in accordance with interoffice memorandums, orders, and rules of the commission.(4) All items and amounts shall be disclosed to and discussed with the district's attorney, engineer, financial advisor, and bookkeeper.(5) A determination shall be made that the items and amounts to be reimbursed are appropriate and in accordance with commitments or policies of the district and interoffice memorandums, orders and rules of the commission as a result of the procedures followed and subject to such limitations as may apply.(c) Upon completion, the auditor shall prepare a reimbursement report to the district. Such report shall include sufficient details and disclosures to serve the needs of the district and the commission. Within 10 days after approval by the governing board of the district, a copy of this report shall be submitted to the executive director. The contents of the report shall include the following:(1) auditor's report;(2) schedules of amounts reimbursable to each developer; and(3) comparison of amounts included in the interoffice memoranda with amounts reimbursable and anticipated amounts, if any, to be expended in the future.</content><note type="source"><p>Source Note: The provisions of this §293.70 adopted to be effective September 5, 1986, 11 TexReg 3745; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scG"><num value="G">SUBCHAPTER G</num><heading>OTHER ACTIONS REQUIRING COMMISSION CONSIDERATION FOR APPROVAL</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scG/s293.80"><num value="293.80">§293.80</num><heading>Revenue Notes</heading><content>(a) A district, as defined by Texas Water Code (TWC), §49.001 may not execute a revenue note as described by TWC, §49.153 for a term longer than three years unless approved by the commission. This section does not apply to a note issued to and approved by the Farmers Home Administration, the United States Department of Agriculture, the Texas Water Development Board, North American Development Bank, or successor agencies.(b) This section does not apply to special water authorities, as defined by TWC, §49.001 or a district described by TWC, §49.181(h).(c) Applications for commission approval of revenue notes except as provided in subsection (d) of this section shall include the following:(1) a resolution by the governing board requesting approval of the revenue note;(2) documents indicating district ownership of the facility;(3) a detailed explanation of the intended use and project to be financed, and complete justification for the proposed revenue note;(4) a copy of the district's current Rate Order or Amended Rate Order;(5) a proposed amortization schedule for the revenue note;(6) a draft of the proposed revenue note;(7) copies of the district's current operating budget and estimates of revenues and expenses for the years associated with the revenue note;(8) copies of all existing notes, liens, or judgements against revenues associated with the facility;(9) an application fee in the amount of $100; and(10) other information as the executive director may require.(d) Revenue notes proceeds of which are used to reimburse a developer as defined in TWC, §49.052(d) are subject to Subchapter E of this chapter (relating to the Issuance of Bonds).</content><note type="source"><p>Source Note: The provisions of this §293.80 adopted to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective May 5, 2005, 30 TexReg 2533.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scG/s293.81"><num value="293.81">§293.81</num><heading>Change Orders</heading><content>A change order is a change in plans, specifications, or scope of work for construction work that is under contract. For purposes of this section, a variation between estimated quantities and actual quantities or use of supplemental items included in the bid where no change in plans and specifications has occurred is not a change order.(1) Districts are authorized to issue change orders that are necessary or beneficial to the district as determined by the district's board, which alter the plans, specifications, or scope of work in the contract, subject to the following conditions.(A) The aggregate of change orders that increase the original contract price more than 25% may be issued only in response to:(i) unanticipated conditions encountered during construction, repair, or renovation;(ii) changes in regulatory criteria; or(iii) coordination with construction of other political subdivisions or entities.(B) All change orders must be in writing and executed by the district and the contractor and approved by the district's engineer.(C) The competitive bidding requirements of Texas Water Code, §49.273(d) and (e) shall not apply to change orders issued in accordance with this section.(2) No commission approval is required if the change order is $50,000 or less. If the change order is more than $50,000, the executive director or his designated representative may approve the change order. For purposes of this section, if either the total additions or total deletions contained in the change order exceed $50,000, even though the net change in the contract price will be $50,000 or less, approval by the executive director is required.(3) If the change order is $50,000 or less, a copy of the change order signed by the contractor and an authorized representative of the district shall be submitted to the executive director within ten days of the execution date of the change order, together with any revised construction plans and specifications approved by all agencies and entities having jurisdictional responsibilities, i.e., city, county, state, other, if required.(4) Applications for change orders requiring approval shall include:(A) a copy of the change order signed by an authorized officer or employee of the district and the contractor, and a resolution or letter signed by the board president indicating concurrence with the proposed change;(B) revised construction plans and specifications approved by all agencies and entities having jurisdictional responsibilities, i.e., city, county, state, other, if required;(C) a detailed explanation for the change;(D) a detailed cost summary showing additions and/or deletions to the approved plans and specifications, and new contract price or cost estimate;(E) a statement indicating amount and source of funding for the change in plans including how the available funds were generated;(F) the number of utility connections added or deleted by the change, if any;(G) certification as to the availability and sufficiency of water supply and wastewater treatment capacities to serve such additional connections;(H) filing fee in the amount of $100; and(I) other information as the executive director or the commission may require.(5) Copies of all changes in plans, specifications, and supporting documents for all water district projects will be sent directly to the appropriate commission field office, simultaneously with the submittal of the documents to the executive director.(6) Requirements relating to change orders shall also apply to construction carried out in accordance with §293.46 of this title (relating to Construction Prior to Commission Approval), except commission approval or disapproval will not be given. Change orders which are subject to executive director approval will be evaluated during the bond application review.</content><note type="source"><p>Source Note: The provisions of this §293.81 adopted to be effective September 5, 1986, 11 TexReg 3745; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective October 6, 2002, 27 TexReg 9365; amended to be effective April 21, 2013, 38 TexReg 2372; amended to be effective November 13, 2014, 39 TexReg 8730; amended to be effective October 29, 2020, 45 TexReg 7593.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scG/s293.82"><num value="293.82">§293.82</num><heading>Change in Project Scope or Plans</heading><content>(a) A change in project scope is a change in projects funded or a change in the land use plan used to support the feasibility of a commission approved bond issue which affects the central water or wastewater needs of the district or the amount of financial guarantees required pursuant to commission rules and that does not require an increase in the commission approved bond amount. All applications for a change in the project scope shall include:(1) a copy of a resolution or letter signed by a majority of the governing board, indicating concurrence in the proposed change;(2) revised land use plan;(3) revised build-out projections used to support the feasibility of the bond issue, if changed;(4) revised cash-flow analysis, if revised build-out projections have caused a reduction in projected assessed valuations;(5) a complete justification for the change;(6) the number of equivalent utility connections added or deleted by the change;(7) an engineer's certification as to the availability and sufficiency of water supply and wastewater treatment capacities to serve such additional connections;(8) a draft of the revised financial guarantee and an agreement between the district and developer, along with an engineer's cost estimate to complete the required projects if a change in the amount of financial guarantees is necessary to comply with commission rules;(9) a market study update if one was required at the time of the bond approval and bonds have not been issued and there has been a change in type of development;(10) plans and specifications approved by all entities having jurisdictional responsibilities;(11) filing fee in the amount of $100; and(12) other information as the executive director or commission may require.(b) A change in plans is a change in commission-approved plans and specifications for construction work that is not under contract and that does not require a change in the commission approved bond amount.(1) No commission approval is required if the change in plans is $25,000 or less.(2) All applications for change in plans shall include:(A) a copy of a resolution or letter signed by the governing board, indicating concurrence in the proposed change (and for drainage districts, an advertisement affidavit indicating the proposed change in plans was published as required by the Texas Water Code, §56.123);(B) revised construction plans and specifications approved by all agencies and entities having jurisdictional responsibilities, i.e., city, county, state, and other, if required;(C) a revised land use plan, if changed;(D) a detailed explanation for the change;(E) a detailed cost summary showing additions and/or deletions to the approved plans and specifications and new cost estimate;(F) a statement indicating amount and source of funding for the change in plans, including how the available funds were generated;(G) the number of utility connections added or deleted by the change;(H) an engineer's certification as to the availability and sufficiency of water supply and wastewater treatment capacities to serve such additional connections;(I) a filing fee in the amount of $100; and(J) other information as the executive director or the commission may require.(3) For purposes of this section, if either the total additions or total deletions contained in the change order exceed $25,000, even though the net change in the contract price will be $25,000 or less, approval by the executive director is required.(c) Copies of all changes in plans, specifications, and supporting documents for all water district projects will be sent directly to the appropriate commission field office, simultaneously with the submittal of the documents to the executive director.</content><note type="source"><p>Source Note: The provisions of this §293.82 adopted to be effective June 30, 1993, 18 TexReg 3758; amended to be effective April 15, 1994, 19 TexReg 2301.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scG/s293.83"><num value="293.83">§293.83</num><heading>District Use of Surplus Funds for Any Purpose and Use of Maintenance Tax Revenue for Certain Purposes</heading><content>(a) Except as provided in subsection (c)(3) and (4) of this section, and as provided in subsection (d) of this section, a district must receive approval from the executive director before obligating the use of:(1) surplus bond funds;(2) interest earned on invested bond proceeds, grants, or contributions by others for costs sharing of facilities constructed with bond funds;(3) proceeds from the sale of property originally acquired with bond proceeds, unless the proceeds are applied to retire the outstanding bonds of the district; and(4) litigation settlements related to projects financed by bond proceeds.(b) A district contemplating the use of operation and maintenance tax revenue for reimbursement to a developer (as defined in Texas Water Code (TWC), §49.052(d)), of property, or its assigns, for planning, construction, or acquiring facilities must receive approval from the executive director.(c) Application requirements are as follows.(1) For engineering projects, the following documents shall be submitted:(A) a resolution by the governing board requesting approval of the project;(B) construction plans and specifications approved by all agencies having jurisdictional responsibilities;(C) a detailed explanation of the project;(D) a detailed cost summary;(E) if developer reimbursement from an operation and maintenance tax, operating budgets showing revenues and expenditures over the years from which the operation and maintenance tax revenue is derived;(F) the number of utility connections to be added (if applicable) and area served;(G) engineer's certification as to the availability and sufficiency of water supply and wastewater treatment capacities to serve such additional connections;(H) a written statement from district's bookkeeper stating the amount and source of funding including how available funds were generated;(I) the 100-year flood data for area to be served if not previously provided;(J) evidence of compliance with the requirements of Subchapter E of this chapter (relating to Issuance of Bonds);(K) an application fee in the amount of $100; and(L) other information as the executive director may require.(2) For expenditures other than engineering projects, the following documents shall be submitted:(A) a resolution by the governing board requesting approval of the expenditure;(B) a complete justification and explanation of purpose for which the funds are proposed for expenditure;(C) if developer reimbursement from an operation and maintenance tax, operating budgets showing revenues and expenditures over the years from which the operation and maintenance tax revenue is derived;(D) other information as the executive director may require; and(E) an application fee in the amount of $100.(3) Subject to the requirements prescribed in paragraph (4) of this subsection, a district which has a no-growth tax rate of $2.00 per $100 assessed valuation or less calculated by dividing its average annual debt service on existing tax supported debt by current taxable assessed valuation/100, may use surplus funds for improvements necessary to serve development within the district as follows without further approval:(A) rehabilitation or maintenance of facilities previously approved by the commission for funding and owned by the district if the scope of the originally approved project has not changed;(B) engineering and construction costs associated with constructing water plant or wastewater treatment plant improvements located on the plant site, including storage facilities to meet project needs within the district's boundaries;(C) pump stations and force mains located within the boundaries of the district which directly connect the districts wastewater system to a regional plant; or(D) alternate water supply interconnects between two or more districts.(4) Districts contemplating the use of surplus funds as provided in paragraph (3) of this subsection must:(A) receive all required approvals of associated plans and specifications from other governmental agencies, including the agency, prior to construction;(B) submit to the executive director and the appropriate field office those documents required by §293.62 of this title (relating to Construction Related Documents To Be Submitted to the Agency); and(C) report expenditures of all surplus funds in their annual audit report in the notes to the financial statements disclosing any amounts transferred among the funds including the use of surplus funds and the authority for such transfers.(d) A district may transfer surplus interest earnings on invested bond proceeds to its debt service account without executive director approval if permitted by its bond covenants and if such funds are not committed for other purposes.</content><note type="source"><p>Source Note: The provisions of this §293.83 adopted to be effective September 5, 1986, 11 TexReg 3745; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective April 15, 1994, 19 TexReg 2301; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective May 5, 2005, 30 TexReg 2533.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scG/s293.84"><num value="293.84">§293.84</num><heading>District Use of Escrowed Funds</heading><content>(a) A district contemplating the use of agency-directed escrowed funds for a purpose approved in the bond application must submit the following documents to the executive director:(1) a resolution by the governing board or a letter from the board president requesting approval of the expenditure;(2) evidence that the reason for escrow of such funds has been satisfied; and(3) other information as the executive director may require and requested within 10 days of receipt of application; and(4) a filing fee in the amount of $100.(b) A district contemplating use of agency-directed escrowed funds for purposes other than as approved by the commission in the bond application must receive approval of the executive director. To secure such approval, the following documents must be submitted:(1) for engineering projects:(A) the documents required by §293.83(4) of this title (relating to District Use of Surplus Funds); and(B) a resolution of the governing board or a letter from the board president requesting such release from escrow;(2) for purposes other than engineering projects:(A) a resolution by the governing board requesting escrow release;(B) a detailed explanation of purpose for which the funds will be expended; and(3) a filing fee in the amount of $100; and(4) other information as the executive director may require.</content><note type="source"><p>Source Note: The provisions of this §293.84 adopted to be effective September 5, 1986, 11 TexReg 3745; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scG/s293.85"><num value="293.85">§293.85</num><heading>Change in Commission Approved Maturity Schedules, Commission Approved Tax Rates, or Increase in Commission Approved Bond Interest Rate</heading><content>(a) If a district proposes an increase in a commission approved interest rate or a change in maturity schedule which requires no increase in bond amount or change in the commission approved tax rate, the district shall file a written statement with the executive director signed by the board president indicating that no such increase or change is required and shall provide a revised bond issue cost summary. Under these conditions, no further approval is required.(b) If a district proposes a change in a commission approved interest rate or a change in maturity schedule which requires an increase in the bond amount, approval of the commission of a bond amendment by the district is required.(c) If a district proposes a change in a commission approved interest rate or maturity schedule which requires a change in the commission approved tax rate, approval of the executive director is required. To secure such approval, the district shall file the following:(1) a resolution by the governing board requesting approval of the change;(2) a revised cost summary, if applicable, projection of revenues and expenses, and amortization schedule, as applicable;(3) a detailed explanation for the change;(4) a filing fee in the amount of $100; and(5) other information as the executive director may require.</content><note type="source"><p>Source Note: The provisions of this §293.85 adopted to be effective September 5, 1986, 11 TexReg 3745; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective April 15, 1994, 19 TexReg 2301.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scG/s293.86"><num value="293.86">§293.86</num><heading>Bond Amendment</heading><content>A bond amendment is a change in a commission approved bond issue project that requires an increase in the approved bond amount. Applications for bond amendments require commission approval and shall include the following:(1) a resolution by the governing board requesting approval of the bond amendment;(2) revisions to applicable required items which were previously submitted pursuant to §293.43 of this title (relating to Application Requirements);(3) a detailed explanation of the amendment;(4) a filing fee in the amount of $100; and(5) other information as the executive director may require.</content><note type="source"><p>Source Note: The provisions of this §293.86 adopted to be effective September 5, 1986, 11 TexReg 3745; amended to be effective June 30, 1993, 18 TexReg 3758.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scG/s293.87"><num value="293.87">§293.87</num><heading>Application for Extension of Time to Sell Bonds</heading><content>An application to extend commission approval of a bond issue must include the following:(1) a resolution by the governing board requesting the approval to extend commission approval of the bond issue;(2) updated build-out schedules if changed from original projections;(3) market study update if a market study was required in original bond application;(4) revised table of projected revenues and expenses;(5) if the application includes a change in the approved interest rate, maturity schedule or total bond amount, a revised amortization table;(6) if the original approval did not contain funds for the 0.25% fee required under §293.45 of this title (relating to Action of the Commission and Bond Proceeds Fee), applicant must submit a revised cost summary including such fee;(7) a filing fee in the amount of $100; and(8) other information as the executive director may require.</content><note type="source"><p>Source Note: The provisions of this §293.87 adopted to be effective October 6, 2002, 27 TexReg 9365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scG/s293.88"><num value="293.88">§293.88</num><heading>Petition for Authorization to Proceed in Federal Bankruptcy</heading><content>(a) A district desiring to proceed under the Federal Bankruptcy Code, Chapter 9 (11 United States Code, §§901 - 946) or any other federal bankruptcy law shall submit an application requesting authorization pursuant to Water Code, §49.456. The application shall consist of the following:(1) a certified copy of the resolution adopted by the board of directors or other governing body requesting such authorization;(2) an application fee of $100 plus the cost of required notice;(3) a district status report with all information current and certified within 30 days prior to the date of submittal;(4) a comparison of the projections or assumptions of growth, taxes, revenues and expenses submitted to the commission in connection with the approval of the bonds issued most recently by the district, or, if commission approval was not required, the projections or assumptions used by the district in connection with the bonds most recently issued by the district, to the actual growth, taxes, revenues and expenses;(5) a description of the reasons that, in the opinion of the governing body of the district, the projections and assumptions used in connection with the most recent issue of bonds were not realized and any other factors which have caused the district financial difficulties;(6) a complete analysis of the tax rate, user fees or other charges or sources of revenues that the district may lawfully impose that would be necessary in order for the district to meet its debts and obligations as they become due and the impact of such taxes and fees upon taxpayers and users within the district;(7) a complete analysis of the reasons that the district cannot, through the full exercise of its rights and powers under the laws of this state, reasonably expect to meet its debts and other obligations as they mature;(8) a statement of whether the district has complied with the commission order, approving the issuance of bonds, and this chapter;(9) a list of the names and addresses of all creditors of the district or a statement explaining the reasons for the inability to obtain such a list and the efforts taken to identify such creditors;(10) the plan of adjustment of the district's debt which it proposes to file in the bankruptcy proceeding if the commission authorizes the district to proceed; and(11) such other information which the commission considers material to a determination of whether authorization to proceed in bankruptcy should be granted.(b) The chief clerk shall mail written notice to all creditors shown in the district's application, all developers and their lien-holders and the top ten taxpayers shown in the district status report, the city in whose corporate limits or extraterritorial jurisdiction the district is located, if any, and the county in which the district is located. The chief clerk shall publish notice of the application at least once a week for two consecutive weeks in a newspaper of general circulation in the county in which the district is located. The chief clerk shall also publish notice of the application once in the Texas Bond Reporter of Austin, The Daily Bond Buyer, The Weekly Bond Buyer, or The Wall Street Journal. Such notices shall be mailed or published within 30 days of the date an administratively complete application is received by the executive director. The commission shall not act on the application before 30 days after such notices are given, mailed, or published.(c) If, after consideration of all evidence, the commission determines that the district cannot, through the full exercise of its rights and powers under the law of this state, reasonably expect to meet its debts and other obligations as they mature, the commission may authorize the district to proceed in bankruptcy.(d) If the commission determines that the district can, through the full exercise of its rights and powers under the laws of this state, reasonably expect to meet its debt and other obligations as they mature, the commission shall deny the district's application and shall order the district to adopt specific measures to generate sufficient revenues to meet its obligations. The commission shall also require the district to submit periodic reports on the implementation of the measures required by the commission and its current financial condition.(e) The commission may assess additional fees adequate to cover its cost in administering this section.</content><note type="source"><p>Source Note: The provisions of this §293.88 adopted to be effective August 5, 1988, 13 TexReg 3638; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective September 14, 2000, 25 TexReg 8955.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scG/s293.89"><num value="293.89">§293.89</num><heading>Contract Tax Obligations</heading><content>(a) A district that is required under Texas Water Code (TWC), §49.181 to obtain approval by the commission of the issuance of bonds may not enter into an obligation under TWC, §49.108 to collect taxes for debt that exceeds three years unless approved by the executive director. This section does not apply to contract taxes that are levied to pay for a district's share of bonds that have been issued by another district and approved by the commission or for bonds issued by a municipality.(b) Applications for commission approval of contract tax obligations shall include the following:(1) a resolution by the governing board requesting approval of the contract;(2) a copy of the proposed contract;(3) a detailed explanation of the intended use and project to be financed, and complete justification for the project to be financed;(4) a proposed cash flow over the life of the obligation which includes all debt obligations of the district;(5) unless waived by the executive director, if growth is used to support the projected tax rates, an independent market study;(6) if funds received under the contract are proposed to reimburse a developer as defined in TWC, §49.052(d), a complete Bond Application Report as described in §293.43(5) of this title (relating to Application Requirements) for the issuance of bonds. The reimbursement is subject to §§293.44, 293.46 - 293.53, 293.56, 293.57, 293.59, and 293.60 of this title (relating to the Issuance of Bonds) and, if appropriate, subject to executive director approval before reimbursement to the developer. The executive director may waive any of the requirements of this subsection upon a showing by the applicant that waiver will promote regionalization or is otherwise justified.(7) an application fee in the amount of $100; and(8) other information as the executive director may require.(c) All applications for executive director approval of contract tax obligations will be subject to §293.59 of this title (relating to Economic Feasibility of Project).</content><note type="source"><p>Source Note: The provisions of this §293.89 adopted to be effective June 5, 1998, 23 TexReg 5715; amended to be effective October 6, 2002, 27 TexReg 9365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scG/s293.90"><num value="293.90">§293.90</num><heading>Change in Designated Meeting Location</heading><content>(a) The board shall designate one or more places inside or outside the district for conducting the meetings of the board. The meeting place may be a private residence or office, provided that the board, in its order establishing the meeting place, declares the same to be a public place and invites the public to attend any meeting of the board. If the board establishes a meeting place or places outside the district, it shall give notice of the location or locations by filing a true copy of the resolution establishing the location or locations of the meeting place or places and a justification of why the meeting will not be held in the district or within 10 miles of the boundary of the district, if applicable, with the commission and also by publishing notice of the location or locations in a newspaper of general circulation in the district. If the location of any of the meeting places outside the district is changed, notice of the change shall be given in the same manner.(b) After at least 50 qualified electors are residing in a district, on written request of at least five of those electors, the board shall designate a meeting place and hold meetings within the district. If no suitable meeting place exists inside the district, the board may designate a meeting place outside the district that is located not further than 10 miles from the boundary of the district.(c) On the failure, after a request is made under subsection (b) of this section, of the board to designate the location of the meeting place within the district or not further than 10 miles from the boundary of the district, five electors may petition the commission to designate a location.(1) The petition shall include the following items: the name of the district; reason(s) why the current meeting location deprives the residents of a reasonable opportunity to attend district meetings; evidence that the petitioners have requested a change in the meeting location in accordance with subsection (b) of this section; certification that there are at least 50 qualified voters residing in the district; and evidence that the five petitioners are qualified voters residing in the district.(2) The petition may include proposed new meeting locations and addresses.(d) If the commission determines that the meeting place used by the district deprives the residents of a reasonable opportunity to attend district meetings, the commission shall designate a meeting place inside or outside the district which is reasonably available to the public and require that the meetings be held at such place.(e) After holding a meeting at a place designated under subsection (b) or (c) of this section, the board may hold a hearing on the designation of a different meeting place, including a meeting place outside of the district. The board may hold meetings at the designated meeting place if, at the hearing, the board determines that the new meeting place is beneficial to the district and will not deprive the residents of the district of a reasonable opportunity to attend meetings. The board may not hold meetings at a meeting place outside the district or further than 10 miles from the boundaries of the district if the board receives a petition under subsection (c) of this section.(f) The commission shall make a determination under subsection (c) of this section not later than the 60th day after the date the commission receives a complete petition.</content><note type="source"><p>Source Note: The provisions of this §293.90 adopted to be effective October 29, 2020, 45 TexReg 7593.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scH"><num value="H">SUBCHAPTER H</num><heading>REPORTS</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scH/s293.91"><num value="293.91">§293.91</num><heading>Reporting by Districts</heading><content>(a) All districts are required to submit certain documents and reports to the executive director by the Texas Water Code, Chapter 49, as follows:(1) a certified copy of the order or legislative act creating the district within 60 days after the date the district is created;(2) certified copy of the order of the district's governing board changing the boundaries of the district within 60 days after the date of any boundary change together with a linen tracing or other map of equal quality showing the new boundaries;(3) a written notification to the executive director of the name, mailing address and date of expiration of term of office of any elected or appointed director within 30 days after the date of the election or appointment;(4) a certified copy of the audit report within 15 days after the date of completion of any audit of the affairs of the district, other than the annual audit required by Water Code, §49.191;(5) an annual audit report, financial report, or financial dormancy affidavit, as required by §293.94(c), (e), and (f) of this title (relating to Annual financial Reporting Requirements); and(6) an annual filing affidavit, as required by subsection (g) of §293.94 of this title (relating to Annual financial Reporting Requirements), and Water Code, §49.194(d), certifying that all filings of copies of the annual audit report, an annual financial dormancy affidavit, or annual financial report, as applicable, have been completed.(b) Districts created pursuant to general law under provisions of the Texas Water Code are subject to specific reporting requirements. Each district should comply carefully with the reporting requirements provided in the Texas Water Code chapter under which it was created. Districts created pursuant to special acts of the Texas Legislature may be subject to specific reporting requirements. Each district so created should comply carefully with any reporting requirements contained in special act of the Texas Legislature under which it was created.</content><note type="source"><p>Source Note: The provisions of this §293.91 adopted to be effective September 5, 1986, 11 TexReg 3746; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scH/s293.92"><num value="293.92">§293.92</num><heading>Additional Reports and Information Required of Certain Districts</heading><content>A district which is providing or proposing to provide, as the district's principal function, water, wastewater, drainage, and flood control or protection facilities or services, or any of these facilities or services that have been financed or are proposed to be financed with bonds of the district payable in whole or in part from taxes of the district, or by imposition of a standby fee to household or commercial users, other than agricultural or irrigation users, and which district includes less than all the territory in at least one county and which, if located within the corporate area of a city, includes less than 75% of the incorporated area of the city or which is located outside the corporate area of a city in whole or in substantial part shall submit such additional reports and information as may be required by the executive director from time to time.(1) The information shall include:(A) the name of the district;(B) the complete and accurate legal description of the boundaries of the district;(C) the most recent rate of district taxes on property located in the district;(D) the total amount of bonds which have been approved by the voters and which may be issued by the district (excluding refunding bonds and any bonds or portion of bonds payable solely from revenues received or expected to be received pursuant to a contract with a governmental entity);(E) the aggregate initial principal amount of all bonds of the district payable in whole or in part from taxes (excluding refunding bonds and any bonds or portion of bonds payable solely from revenues received or expected to be received pursuant to a contract with a governmental entity) which have been previously issued and remain outstanding;(F) whether a standby fee is imposed by the district, and, if so, the amount of the standby fee;(G) the date on which the election to confirm the creation of the district was held, if such was required;(H) a statement of the functions performed or to be performed by the district;(I) the particular form of Notice to Purchasers required by Water Code, §49.452 to be furnished by a seller to a purchaser of real property in that district completed by the district with all information required to be furnished by the district; and(J) a complete and accurate map or plat showing the boundaries of the district.(K) If a district has not yet levied taxes, a statement to such effect together with the district's projected rate of debt service tax estimated at the time of creation of the district shall be substituted for subparagraphs (C) and (D) of this paragraph.(i) The information and map or plat required by this section and each amendment to the same shall be signed by a majority of the members of the governing board of the district and by each such officer affirmed and acknowledged, before it is filed with the county clerk.(ii) The information form required by this section shall be filed with the county clerk within 48 hours after the district is officially created. For purposes of this section, the words "officially created" mean the date and hour in which the results of the election to confirm the creation of the district are declared.(iii) Within seven days after a change in any of the information contained in the district information form, map, or plat, the district shall file with the county clerk an amendment setting forth the changes made.(iv) A copy of all information forms, maps, plats, and amendments thereto filed under this section shall also be filed with the executive director within five days of its filing with the county clerk.(v) If a district fails to submit the information required by this section in the time required, the executive director may request the attorney general, or the district or county attorney of the county in which the district is located, to seek a writ of mandamus to force the governing board of the district to prepare and submit the necessary information.(vi) If a district covered by the provisions of this section is dissolved, annexed to another local government, or is consolidated with another district, the members of the governing board shall file a statement of this fact together with the effective date of the dissolution, annexation, or consolidation with the information form.</content><note type="source"><p>Source Note: The provisions of this §293.92 adopted to be effective September 5, 1986, 11 TexReg 3746; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scH/s293.93"><num value="293.93">§293.93</num><heading>Special Reporting Requirements for Districts Subject to Consent Agreements Made Pursuant to the Texas Water Code, §54.016(h)</heading><content>Districts created subject to the consent agreements authorized by the Texas Water Code, §54.016(h), shall submit the duly affirmed and acknowledged statement, and the map or plat, required by Water Code, §54.016(h)(4)(B), together with the reports and information required by Water Code, §§49.455(c)-49.455(j), as incorporated by reference into Water Code, §54.016(h)(4)(B).</content><note type="source"><p>Source Note: The provisions of this §293.93 adopted to be effective September 5, 1986, 11 TexReg 3746; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scH/s293.94"><num value="293.94">§293.94</num><heading>Annual Financial Reporting Requirements</heading><content>(a) Statutory provisions for fiscal accountability. All districts as defined in Texas Water Code (TWC), §49.001(a) are required to comply with the provisions of TWC, §§49.191 - 49.198 requiring every district to either have performed an annual audit or to submit an annual financial dormancy affidavit or an annual financial report.(b) Accounting and auditing manual. All districts shall comply with the accounting and auditing manual adopted by the executive director. The manual shall consist of one publication, "Water District Financial Management Guide." The manual may be revised as necessary by the executive director.(c) Duty to audit. The governing board of each district created under the general law or by special act of the legislature shall have the district's fiscal accounts and records audited annually at the expense of the district. The person who performs the audit shall be a certified public accountant or public accountant holding a permit from the Texas State Board of Public Accountancy. Districts with limited or no financial activity may qualify to prepare an unaudited financial report, pursuant to subsection (e) of this section, or a financial dormancy affidavit, pursuant to subsection (f) of this section.(d) Form of audit. The audit shall be performed according to generally accepted auditing standards adopted by the American Institute of Certified Public Accountants. Financial statements shall be prepared in accordance with generally accepted accounting principles as adopted by the American Institute of Certified Public Accountants.(e) Audit report exemption.(1) A district may elect to submit annual financial reports to the executive director in lieu of the district's compliance with TWC, §49.191 provided:(A) the district had no bonds or other long-term (more than one year) liabilities outstanding during the fiscal period;(B) the district did not have gross receipts from operations, loans, taxes, or contributions in excess of $250,000 during the fiscal period; and(C) the district's cash and temporary investments were not in excess of $250,000 at any time during the fiscal period.(2) The annual financial report must be accompanied by an affidavit, attesting to the accuracy and authenticity of the financial report, signed by a duly authorized representative of the district, which conforms with the format prescribed by the executive director. Financial report and filing affidavit forms may be obtained from the executive director.(3) Districts governed by this section are subject to periodic audits by the executive director.(f) Financially dormant districts.(1) A district may elect to prepare a financial dormancy affidavit rather than an unaudited financial report, as prescribed by subsection (e) of this section, provided:(A) the district had $500 or less of receipts from operations, tax assessments, loans, contributions, or any other sources during the calendar year;(B) the district had $500 or less of disbursements of funds during the calendar year;(C) the district had no bonds or other long-term (more than one year) liabilities outstanding during the calendar year; and(D) the district did not have cash or investments in excess of $5,000 at any time during the calendar year.(2) The required financial dormancy and filing affidavit shall be prepared in a format prescribed by the executive director and shall be submitted by a duly authorized representative of the district. Financial dormancy affidavit forms may be obtained from the executive director.(3) Districts governed by this section are subject to periodic audits by the executive director.(g) Annual filing affidavit. Each district shall submit annually with the executive director a filing affidavit which affirms that copies of the district's audit report, financial report, or financial dormancy affidavit have been filed within the district's business office. Each district that files a financial report or a financial dormancy affidavit will find that the annual filing affidavit has been incorporated within those documents, so a separate filing affidavit form is not necessary. However, each district that submits an audit report must execute and submit, together with the audit, an annual filing affidavit when the audit is submitted with the executive director. Annual filing affidavits must conform to the format prescribed by the executive director. Filing affidavit forms may be obtained from the executive director.(h) Submitting of audits, financial reports, and affidavits.(1) Submittal dates.(A) Audits. Audit reports and the annual filing affidavits that must accompany those reports shall be submitted as prescribed by paragraph (2) of this subsection within 135 days after the close of the district's fiscal year. Audit reports and the accompanying annual filing affidavits submitted by a special water authority, as defined in TWC, §49.001(8), shall be submitted as prescribed by paragraph (2) of this subsection within 160 days after the close of the special water authority's fiscal year. The governing board of the district or special water authority shall approve the audit before a copy of the report is submitted to the executive director; however, the governing board's refusal to approve the audit shall not extend the submittal deadline for the audit report. If the governing board refuses to approve the audit, the board shall submit to the executive director by the prescribed submittal date the report and a statement providing the reasons for the board's refusal to approve the report.(B) Financial reports. Financial reports and the annual filing affidavits in a format prescribed by the executive director, must be submitted to the executive director as prescribed by paragraph (2) of this subsection within 45 days after the close of the district's fiscal year.(C) Financial dormancy affidavits. Financial dormancy affidavits shall be submitted as prescribed by paragraph (2) of this subsection by January 31st of each year. The calendar year affidavit affirms that the district met the financial dormancy requirements stated in subsection (f) of this section during part or all of the calendar year immediately preceding the January 31st filing date.(2) Submittal locations. Copies of the audit, financial report, or financial dormancy affidavit described in subsections (c), (e), and (f) of this section shall be submitted annually to the executive director, and within the district's office.(i) Review by executive director.(1) The executive director may review the audit report of each district. After reviewing the audit report, the executive director may request additional information from the district. The district shall provide the additional information not later than the 60th day after the date the request was received, unless the executive director extends the time allowed for the district to provide additional information for good cause. If the executive director has any objections or determines any violations of generally accepted auditing standards or accounting principles, statutes or commission rules, or if the executive director has any recommendations, the executive director shall notify the governing board of the district.(2) Before the audit report may be accepted by the executive director as being in compliance with the provisions of this section, the governing board and the auditor shall remedy objections and correct violations of which they have been notified by the executive director.(3) Districts governed by this section are subject to periodic audits by the executive director. The executive director may review and investigate a district's financial records and may conduct an on-site audit of a district's financial information. The executive director shall have access to all vouchers, receipts, district fiscal and financial records, and other district records which the executive director considers necessary for the review, analysis, and approval of an audit report, financial report, or financial dormancy affidavit.(j) Penalties for Noncompliance.(1) The executive director shall file with the attorney general the names of any districts that do not comply with the provisions of this subchapter.(2) A district that fails to comply with the filing provisions of TWC, Chapter 49, may be subject to a civil penalty of up to $100 per day for each day the district willfully continues to violate these provisions after receipt of written notice of violation from the executive director by certified mail, return receipt requested. The state may sue to recover the penalty.</content><note type="source"><p>Source Note: The provisions of this §293.94 adopted to be effective September 5, 1986, 11 TexReg 3746; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective August 30, 2012, 37 TexReg 6626; amended to be effective November 13, 2014, 39 TexReg 8730; amended to be effective October 29, 2020, 45 TexReg 7593.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scH/s293.95"><num value="293.95">§293.95</num><heading>Access to and Maintenance of District Records</heading><content>(a) The governing board of each district shall ensure that the minutes of governing board meetings and the district's accounting records are prepared on a timely basis and maintained in an orderly manner throughout the district's fiscal year in accordance with the guidelines set forth in the publication Water District Accounting Manual. Each district shall preserve its minutes, contracts, notices, accounts, and all other records or certified copies thereof in a safe place, suitable for public inspection. All records, including the fiscal records, shall be available for public inspection during regular business hours. A district's fiscal records may be removed from the district's office for the purpose of recording its fiscal affairs and for preparing an audit, during which time the fiscal records are under the control of the district's auditor. Those districts proposing to provide or actually providing water and wastewater services or either of these services to household users as the principal function of the district and having at least 100 qualified electors residing in the district shall maintain all district fiscal records in a district office located in the district.(b) Each district, whether active or dormant, shall maintain records sufficient to determine amounts paid by a developer or others to any other party or parties, on behalf of the district. Such payments shall be disclosed in all of the audit reports, financial reports, or financial dormancy affidavits that are required to be filed by subsections (c), (e), and (f) of this section.(c) Districts using proprietary funds (e.g., enterprise funds) in their audited financial statements shall provide sufficient supplemental information to demonstrate compliance with all legal restrictions on the use of district monies. Such supplemental information shall be shown on the format included in the "Annual Audit Report Requirements."</content><note type="source"><p>Source Note: The provisions of this §293.95 adopted to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scH/s293.97"><num value="293.97">§293.97</num><heading>Adoption of Fiscal Year and Operating Budget</heading><content>(a) Fiscal year. Within 30 days after a district becomes financially active, the governing board of that district shall adopt a fiscal year by a formal board resolution and so note it in the district's minutes. The president or chairman of the governing board, a member of the board designated by the presiding officer, or the attorney representing the district shall notify the executive director of the adopted fiscal year within 30 days after adoption. The fiscal year adopted and used for reporting the district's annual financial report shall be used to account for all the district's financial per annum statutory limitations.(b) Operating budget. Prior to the start of a fiscal year, the governing board of each active district shall adopt an operating budget for the upcoming fiscal year. The adopted budget and any subsequent amendments shall be passed and approved by a resolution of the governing board and shall be made a part of the governing board minutes. Budget amendments may be made from time to time in the discretion of the governing board. The adopted budget is not a spending limitation imposed by the commission. However, the governing board may adopt rules to limit the spending authority of the district officers in relation to the budget. A comparison of the actual operating results to the adopted budget, as amended, shall be presented in the annual report of each district. The budgetary comparison statement shall be included either within the audited financial statements or within a supplementary section.</content><note type="source"><p>Source Note: The provisions of this §293.97 adopted to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective September 14, 2000, 25 TexReg 8955.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scI"><num value="I">SUBCHAPTER I</num><heading>DISTRICT NAME CHANGES AND POSTING SIGNS</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scI/s293.101"><num value="293.101">§293.101</num><heading>Posting Signs in the District</heading><content>(a) Any district which is providing or proposing to provide as the district's principal function, water, wastewater, drainage, flood control or protection facilities or services, or any of these facilities or services that have been financed or are proposed to be financed with bonds of the district payable in whole or part from taxes of the district, or by imposition of a standby fee, if any, to household or commercial users, other than agricultural, irrigation, or industrial users, and which district includes less than all the territory in at least one county and which, if located within the corporate area of a city, includes less than 75% of the incorporated area of the city or which is located outside the corporate area of a city in whole or in substantial part, shall within 30 days after the creation, whether by commission order, county commissioner's court, or act of the legislature, of the district, post signs indicating the existence of the district at two or more principal entrances to the district.(b) Detailed sign specifications as to location, format, size, and materials may be obtained from the executive director on request at no charge.(c) Within 10 days following the installation of the signs, the district shall submit a statement to the executive director indicating the location of the signs.</content><note type="source"><p>Source Note: The provisions of this §293.101 adopted to be effective September 5, 1986, 11 TexReg 3747; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scI/s293.102"><num value="293.102">§293.102</num><heading>District Name Change</heading><content>(a) A district may apply to the commission for approval of a name change.(1) The district must have reasonable grounds for requesting the change.(2) The new name must be generally descriptive of the location of the district followed by the type of district as provided by the title of the chapter of the Texas Water Code concerning the district. If a district is located wholly within one county that contains more than one district of that type, the district may be differentiated, if necessary by adding to the new name the proper consecutive number. The new name may not be the same as the name of any other district.(b) Applications requesting approval of a name change shall include the following:(1) A resolution by the governing board requesting commission approval of the name change which indicates the proposed new name;(2) The reason for the requested change;(3) A $100 application fee;(4) Any other information that the executive director may require.(c) District action following commission approval of the name change.(1) Within 30 days of the date of commission approval, the district shall publish notice of the name change in a newspaper or newspapers of general circulation in the county or counties in which the district is located.(2) Within 30 days of the date of commission approval, the district shall give notice of the name change by mail to utility customers, permittees, if any, and the county clerk of all counties in which a portion of the district lies; and, to the extent practicable, to the holders of bonds, obligations, and other indebtedness of the district.(3) A suggested form of notice is given in §293.103 of this title (relating to Form of Notice for Name Change).(4) If applicable, the district shall post new name signs pursuant to §293.101 of this title (relating to Posting Signs in the District).</content><note type="source"><p>Source Note: The provisions of this §293.102 adopted to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scI/s293.103"><num value="293.103">§293.103</num><heading>Form of Notice for Name Change</heading><content>The following form may be used to provide notice of a name change pursuant to §293.102(c) of this title (relating to District Name Change): Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §293.103 adopted to be effective October 22, 1996, 21 TexReg 9905; amended to be effective October 6, 2002, 27 TexReg 9365.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scJ"><num value="J">SUBCHAPTER J</num><heading>UTILITY SYSTEM RULES AND REGULATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scJ/s293.111"><num value="293.111">§293.111</num><heading>Water and Wastewater Service Lines and Connection</heading><content>(a) All water districts which provide or propose to provide water and wastewater service shall:(1) adopt regulations governing the construction of commercial and/or household service lines and connections to the district's water and wastewater system;(2) complete and have operable water and wastewater lines and a treatment plant before any connections are authorized;(3) establish an inspection program to ensure that all new commercial and household connections are made in accordance with accepted construction practices prior to authorizing covering (back fill) of the service line trench;(4) require that the district's inspector certify in writing that the connection was installed in accordance with accepted construction practices and in compliance with the district's regulations governing this type of work;(5) submit for the executive director's approval copies of its regulations, inspection procedures, method of certification, and method of financing;(6) upon submission of each bond application, document to the executive director that a water and wastewater service connection inspection program is in force for all new connections and that certification by the district's inspector of compliance with district rules is on file in the district's records.(b) Suggested regulations for wastewater systems may be obtained from the executive director upon request. Strict enforcement of such regulations will eliminate infiltration/inflow problems in service lines, sewage treatment plant overload and, as a result, reduce operation and maintenance costs.(c) This section is applicable whether a district intends on operating facilities itself or intends on conveying the facilities to a third party.</content><note type="source"><p>Source Note: The provisions of this §293.111 adopted to be effective September 5, 1986, 11 TexReg 3747; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective October 26, 2006, 31 TexReg 8699.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scJ/s293.112"><num value="293.112">§293.112</num><heading>Water, Wastewater and Drainage Facilities</heading><content>(a) All water districts that provide or propose to provide water or wastewater service to residential retail or commercial customers shall adopt rules that require inspection and repair of all damages to facilities the district is responsible for maintaining prior to initiation of service. The rules must, at a minimum:(1) require that the district's operator or the district be notified prior to making any improvement or starting any construction on property within the district if such improvement, construction or equipment used in the construction will be within easements, rights-of-way or property where district facilities are located;(2) require that an inspection be completed by the district's operator or the district to verify district facilities prior to starting construction;(3) require that an inspection be completed by the district's operator or the district to verify district facilities after completion of construction; and(4) require that any damages found be repaired to the satisfaction of the district or that reimbursement for repairs be made to the district before service is initiated.(b) This section is applicable whether a district intends on operating facilities itself or intends on conveying the facilities to a third party.</content><note type="source"><p>Source Note: The provisions of this §293.112 adopted to be effective June 5, 1998, 23 TexReg 5715; amended to be effective October 26, 2006, 31 TexReg 8699.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scJ/s293.113"><num value="293.113">§293.113</num><heading>District and Water Supply Corporations' Authority Over Wastewater Facilities</heading><content>(a) A district or water supply corporation (WSC) that operates or proposes to operate a wastewater collection system may prohibit by rule the installation of private on-site wastewater holding or treatment facilities on land within the district or the corporation's service area that is not served by the district's or corporation's wastewater collection system. A district or WSC that has not received funding under Texas Water Code, Chapter 17, Subchapter K, may not require a property owner who has installed an on-site wastewater holding or treatment facility before the adoption of the rule to connect to the district's or corporation's wastewater collection system.(b) A district or WSC that prohibits the installation of private on-site wastewater facilities shall agree to reimburse the owner of a residence the costs (engineering and construction) of connecting the residence to the district's or corporation's wastewater collection system if the distance along a public right-of-way or utility easement from the nearest point of the district's or corporation's wastewater collection system to the boundary line of the tract requiring wastewater collection services is 300 feet or more.(c) This section is applicable whether a district intends on operating facilities itself or intends on conveying the facilities to a third party.</content><note type="source"><p>Source Note: The provisions of this §293.113 adopted to be effective October 6, 2002, 27 TexReg 9365; amended to be effective May 5, 2005, 30 TexReg 2533; amended to be effective October 26, 2006, 31 TexReg 8699.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scK"><num value="K">SUBCHAPTER K</num><heading>FIRE DEPARTMENT PROJECTS</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scK/s293.122"><num value="293.122">§293.122</num><heading>Filing of Documents</heading><content>Applicants shall submit all of the required data at one time in one package. The application for fire department plan approval, and the application for financing a fire department are separate applications. Applications may be returned for completion if they do not satisfy the requirements of this chapter.</content><note type="source"><p>Source Note: The provisions of this §293.122 adopted to be effective September 5, 1986, 11 TexReg 3747.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scK/s293.123"><num value="293.123">§293.123</num><heading>Application Requirements for Fire Department Plan Approval</heading><content>Applications for fire department plan approval shall include:(1) application by the district's board covering the subject matter contained in Water Code, §49.351, as amended, and specifically identifying:(A) the method proposed for district fire protection: i.e. establishment of own fire department, joint fire protection service between two or more districts, or contract with others for fire fighting services; and(B) the method proposed for financing the project including, if applicable, the amount and type bonds (tax, revenue, combination) proposed for issuance by the district;(2) certified copy of the district board's resolution authorizing submission of application for fire department plan approval;(3) certified copy of the district board's order adopting a fire protection plan and/or any proposed contract to be entered into by the district for this purpose;(4) evidence that a copy of the fire protection plan and proposed contracts as adopted by the district's board has been coordinated with the city having extra-territorial jurisdiction of the district; and if the district is outside the jurisdiction of any city, then provide evidence that the county commissioners court of the county in which the district is located has been provided a copy of the plan;(5) filing fee in the amount of $100;(6) fire protection plan (the plan) which shall include, but not be limited to, the following applicable requirements:(A) number and type of buildings and other facilities to be constructed including preliminary drawings, individual cost estimates, together with a location map of the area covered by the plan showing building/facility sites;(B) discussion of existing and/or proposed water supply and distribution systems and their capabilities to support the district board's adopted plan;(C) number, type, purpose and estimated cost of each programmed item of fire fighting equipment;(D) number and combined salary estimate of paid employees proposed, including benefit packages;(E) copy of each proposed contract adopted by the district's board;(F) number and type of facilities and structures existing and projected within the district proposed for fire protection coverage under the adopted plan; and(G) preliminary summary of costs, as applicable, for capital improvements, including buildings, support facilities, vehicles, and miscellaneous equipment; and associated expenses, including legal fees; fiscal agent fees; administration, printing and selling bonds; capitalized interest (two years); building and facility sites (itemize showing cost/acre/site); organization, operation, maintenance, and administration costs; and bond discount;(7) financial presentation for the district board's adopted plan which shall include, but not be limited to:(A) total amount of all bonds currently authorized by the district's electorate;(B) total amount of bonds approved for issuance by the commission or its predecessors;(C) total bonds sold by the district, existing debt, including an itemization of all outstanding bonds, tax or bond anticipation notes, miscellaneous short and long term debt, and present district tax rate to support debt service;(D) projection of revenues and expenses over the life of the proposed bond issue, together with an amortization schedule for the proposed bond issue, if bonds are to be sold to finance the establishment of the fire department; and all debt, as outlined under subparagraph (C) of this paragraph, plus the anticipated debt for any proposed bond issue to finance establishment of a fire department shall be included in the projection of revenues and expenses;(E) a draft of the proposed contract for services and the plan that describes in detail the facilities and equipment to be devoted to service to the district, including financial requirements under the proposed contract, if the district proposes to contract with any other person to perform fire fighting services within the district under Water Code, §§49.351(e); and(F) evidence that the district can financially sustain the operation and maintenance costs of the proposed fire department, and a presentation of the method proposed for generating funds for these purposes, and other miscellaneous expenses; and(8) report describing existing fire department and fire fighting services (fire service organization) within 25 miles of the district, including,(A) a map showing prominent roads, landmarks and the location of each fire service organization, and depicting distance and route to the center of the district by each organization; and(B) a narrative statement addressing the capabilities and willingness of each fire service organization to serve the needs of the district; the probability of a reasonable contract with one or more of the fire service organizations within a 25 mile radius, and a preliminary estimate of the annual costs of this anticipated fire protection service; and any other information deemed pertinent to the proposed application.</content><note type="source"><p>Source Note: The provisions of this §293.123 adopted to be effective September 5, 1986, 11 TexReg 3747; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective October 6, 2002, 27 TexReg 9365.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scK/s293.124"><num value="293.124">§293.124</num><heading>Application Requirements for Fire Department Financing</heading><content>(a) Applications submitted under the provisions of Water Code, §49.351, for establishment of a fire department and the issuance of bonds to finance the construction and purchase of necessary buildings, facilities, and equipment for this purpose shall be considered by the commission only as a separate application for the issuance of bonds; therefore, the request for approval to issue bonds to establish or expand a fire department should not be integrated into a bond application submitted under §293.43 of this title (relating to Application Requirements) for engineering projects except for those water supply and distribution facilities necessary to support the fire protection plan approved by the voters.(b) Districts are encouraged to submit incremental separate applications to initially finance or expand fire department facilities and equipment at various stages of district development as required. Projects for ultimate fire protection plan financing will not normally be recommended for commission approval for a district unless development of that district is substantially completed.(c) The application shall address the applicable subject matter contained in Water Code, §49.351, including the method proposed for district fire protection, the type and amount of bonds requested, and/or the board adopted method of financing the project from other resources.(d) The application shall be accompanied by a certified copy of the district board's resolution authorizing submission of the application.(e) The district shall also include a certified copy of the district board's order canvassing election returns as voted by the district's electorate on the propositions specified under the Water Code, §49.351(i).(f) A certified copy of the fire protection plan and executed contracts as approved by the district's voters shall be submitted.(g) If the fire protection plan authorized by the district's voters is not identical to that approved by the commission, or if the application request under consideration is to finance an increment of the ultimate fire plan approved by the voters, either or both, provide an itemized description of alterations and the reasons for each change or deferred service.(h) A filing fee in the amount of $100 shall be submitted with the application.(i) The district shall include a detailed plan approved by the district's electorate, or the incremental portion thereof as requested in the application, to include, but not be limited to:(1) number and type of buildings and other facilities to be constructed, including final construction plans, specifications, and itemized cost estimates for each building or facility, water supply and distribution improvements;(2) number, type, purpose, and estimated cost of each programmed piece of fire fighting equipment;(3) number of paid employees proposed, and the total estimated salary, including benefit packages;(4) copy of each executed contract for fire protection services between districts, with another person or fire service organization(s), and the estimated annual cost to fulfill the contract requirements;(5) number and type of facilities and structures existing and projected within the district (or districts for joint projects) proposed for fire protection coverage under the application; and(6) summary of costs in conformance with format shown under §293.123(6)(G) of this title (relating to Application Requirements for Fire Department Plan Approval).(j) Districts are encouraged to update and/or modify the financial presentation included in the application for fire protection plan approval as considered by the commission in its approval of that plan, including all the information required under §293.123 of this title (relating to Application Requirements for Fire Department Plan Approval).</content><note type="source"><p>Source Note: The provisions of this §293.124 adopted to be effective September 5, 1986, 11 TexReg 3747; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scK/s293.125"><num value="293.125">§293.125</num><heading>Additional Data and Information</heading><content>Additional data and information may be required by the executive director when deemed pertinent to the bond application under consideration.</content><note type="source"><p>Source Note: The provisions of this §293.125 adopted to be effective September 5, 1986, 11 TexReg 3747; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scL"><num value="L">SUBCHAPTER L</num><heading>DISSOLUTION OF DISTRICTS</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scL/s293.131"><num value="293.131">§293.131</num><heading>Authorization for Dissolution of Water District by the Commission</heading><content>Texas Water Code (TWC), Chapter 49, Subchapters I and K, §§49.321 - 49.327 authorize the commission to dissolve any district as defined in TWC, §49.001(1), which is inactive for a period of five consecutive years and has no outstanding bonded indebtedness.(1) Proceedings for the dissolution of a district may be initiated by the executive director upon his own initiative or upon the receipt of an application filed with the executive director by the owners of land or interests in land within the district which is sought to be dissolved, a member or members of the board of directors of the district, or any other party who can demonstrate an interest in having the district dissolved.(2) If the dissolution is initiated by a party other than the executive director, the application must include:(A) a petition on the part of the party requesting dissolution including a statement of the reasons that a dissolution is desirable or necessary;(B) a statement that the district has been financially dormant for the preceding five-year period for water districts and has performed no functions for the five preceding years and has no outstanding bonded indebtedness;(C) certified copies of dormancy affidavits submitted pursuant to TWC, §49.197, for five years for water districts preceding the year in which the application is submitted;(D) evidence that the district has no outstanding bonded indebtedness may be filed as prepared testimony with the application and may consist of statements or testimony from the district's attorney, engineer, or officer and shall include an affidavit of the state comptroller of public accounts certifying that the district has never registered any bonds with the comptroller;(E) list of assets and liabilities of the district;(F) evidence that all landowners who have not signed the petition have been notified by mail of the dissolution request. A certified tax roll for the district and certificate of mailing executed by the postmaster would be sufficient evidence;(G) a filing fee in the amount of $100; and(H) additional data and information as the executive director or commission may deem necessary or pertinent to the application.(3) The executive director may initiate procedures to dissolve a district without financial dormancy affidavits on file if:(A) the district has failed to comply with the reporting requirements of this chapter for the previous five-year period;(B) attempts to contact directors, interested parties, or anyone with knowledge of district's financial activity have failed; and(C) the state comptroller of public accounts has submitted a certificate certifying that the district has never registered any bonds with the comptroller.</content><note type="source"><p>Source Note: The provisions of this §293.131 adopted to be effective September 5, 1986, 11 TexReg 3748; amended to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective February 21, 1999, 24 TexReg 960; amended to be effective September 14, 2000, 25 TexReg 8955; amended to be effective August 29, 2002, 27 TexReg 7942.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scL/s293.132"><num value="293.132">§293.132</num><heading>Applications for Order without Hearing</heading><content>(a) The commission may adopt an order under Texas Water Code (TWC), §49.324 without conducting a hearing if it receives a petition under this section from the owners of the majority in value of the land in the district, as shown by the most recent certified tax roll of the central appraisal district of the county or counties in which the district is located, or the board of directors of the district. A petition for dissolution under this section must include the items required by §293.131(2)(A) - (E), (G), and (H) of this title (relating to Authorization for Dissolution of Water District by the Commission).(b) Not later than the 10th day after the date a complete petition is submitted under this section, the petitioners shall:(1) provide notice of the petition by certified mail:(A) to all the landowners in the district, as shown by the most recent certified tax roll of the central appraisal district of the county or counties in which the district is located, who did not sign the petition; and(B) if the petition was submitted by the owners of a majority in value of the land in the district, to the board of directors; and(2) certify in writing to the commission that the requirements of paragraph (1) of this subsection have been met.(c) A notice provided under subsection (b)(1) of this section must state that the landowner may file a written objection to the dissolution of the district not later than the 30th day after the date the notice was received.(d) If a landowner files a written objection to the dissolution of the district with the commission within the period specified in the notice, the commission shall hold a hearing on the dissolution of the district. The commission shall mail notice of the hearing by first class mail to:(1) the petitioners, and the board of directors if the board of directors did not submit the petition; and(2) each landowner who timely filed a written objection to the dissolution.(e) A district may not be dissolved under this section or any other provision of law if the district:(1) has any outstanding bonded indebtedness unless the bonded indebtedness is assumed by a third party, or repaid or defeased in accordance with the order or resolution authorizing the issuance of the bonds;(2) has a contractual obligation to pay money unless the obligation is assumed by a third party, fully paid in accordance with the contract, or waived by the obligee; or(3) owns, operates, or maintains public works, facilities, or improvements, unless the ownership, operation, or maintenance is assumed by a third party.</content><note type="source"><p>Source Note: The provisions of this §293.132 adopted to be effective October 29, 2020, 45 TexReg 7593.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scL/s293.133"><num value="293.133">§293.133</num><heading>Notice of Hearing</heading><content>For a dissolution that does not meet the provisions of §293.132 of this title (relating to Applications for Order without Hearing), notice of the hearing upon the proposed dissolution of a district will be given by the chief clerk and will describe the reasons for the proceeding, as required by Texas Water Code, §49.322. The notice will be published once each week for two consecutive weeks before the day of hearing in a newspaper having general circulation in the county or counties in which the district is located. The first publication will be 30 days before the day of the hearing. Notice of the hearing will be given by the chief clerk by first class mail addressed to the directors of the district according to the last record on file with the executive director.</content><note type="source"><p>Source Note: The provisions of this §293.133 adopted to be effective October 29, 2020, 45 TexReg 7593.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scL/s293.134"><num value="293.134">§293.134</num><heading>Investigation by the Staff of the Commission</heading><content>The executive director will examine the application and the facts and circumstances contained in the application and prepare a written report which will be filed with the chief clerk two weeks prior to the hearing as prepared testimony. A copy of the written report will be mailed to any landowner, director, or other interested party who has filed an application for dissolution of the district or has requested notice of the hearing or otherwise indicated an interest in the proceeding.</content><note type="source"><p>Source Note: The provisions of this §293.134 adopted to be effective October 29, 2020, 45 TexReg 7593.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scL/s293.135"><num value="293.135">§293.135</num><heading>Order of Dissolution</heading><content>For districts created under Texas Water Code, Chapter 49, following the hearing, or for an order without hearing, the commission or executive director will enter an order that the district be dissolved if it finds that the district has performed none of the functions for which it was created for a period of five consecutive years before the day of the proceeding, or petition, and the district has no outstanding bonded indebtedness. The commission or executive director may enter an order that the district not be dissolved if it finds that the application lacks sufficient documentation. If the district is ordered dissolved, the order shall contain a provision that the assets of the district shall escheat to the state of Texas and shall be administered by the state treasurer and disposed of in the manner provided by Texas Property Code, Chapter 74.</content><note type="source"><p>Source Note: The provisions of this §293.135 adopted to be effective October 29, 2020, 45 TexReg 7593.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scL/s293.136"><num value="293.136">§293.136</num><heading>Certified Copy of Order to be Filed in the Deed Records</heading><content>The commission shall cause to be filed a certified copy of the order of dissolution of the district in the deed records of the county or counties in which the district is located. If the district was created by a special act of the legislature, the commission shall cause to be filed a certified copy of the order of dissolution with the secretary of state of the state of Texas.</content><note type="source"><p>Source Note: The provisions of this §293.136 adopted to be effective October 29, 2020, 45 TexReg 7593.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scL/s293.137"><num value="293.137">§293.137</num><heading>Filing Fee</heading><content>The fee for filing an application for the dissolution of a water district is $100, plus the cost of required notice.</content><note type="source"><p>Source Note: The provisions of this §293.137 adopted to be effective October 29, 2020, 45 TexReg 7593.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scM"><num value="M">SUBCHAPTER M</num><heading>APPLICATION FOR APPROVAL OF STANDBY FEES</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scM/s293.141"><num value="293.141">§293.141</num><heading>Standby Fees</heading><content>(a) Districts, as defined by Water Code, §49.001, which provide or propose to provide retail potable water, wastewater, or drainage services may, with commission approval, adopt and levy standby fees.(b) Standby fee, as authorized by Water Code, §49.231, means a charge, other than a tax, imposed on undeveloped property for the availability of water, wastewater, or drainage facilities and services. Standby fee does not mean an impact fee, tap fee, or a connection fee.(c) Undeveloped property means a tract, lot or reserve in the district to which no vertical improvements and water or wastewater connections or drainage services have been made to serve the property utilizing substantially the full amount of the capacity allocated to the property as shown in the district's land development plan submitted with creation applications, bond applications (including supporting documents) or by written commitment and for which:(1) any portion of water, wastewater, or drainage facilities and services are available;(2) water supply or wastewater treatment plant capacity or drainage capacity sufficient to serve any portion of the property is available; or(3) major water supply lines or wastewater collection lines or major drainage outfall facilities with capacity sufficient to serve any portion of the property are available.(d) A district may not impose a debt service standby fee unless the facilities and services available to the property were financed by the district; however, a district may impose a standby fee for operating and maintaining facilities that it has not financed.(e) Standby fees levied under this section may be used for the purpose of paying the following costs:(1) operation and maintenance costs associated with maintaining the facilities; and/or(2) debt service payments for water, wastewater, or drainage facilities.(f) Commission approval and adoption of standby fees is valid for a period of not more than three successive years. A district may charge a standby fee of an amount not to exceed the maximum amount approved by the commission. A district may submit an application to increase or renew its standby fee at any time.(g) It is not required that standby fees be uniform throughout the district, only that the fees fairly allocate the cost of district water, wastewater, and drainage facilities and service among property owners of the district. The standby fee may be a single fee expressed as a unit cost per single family equivalent connection or the fee per single family equivalent unit may be divided into separate components (tiers) such as water distribution facilities, water supply facilities, wastewater collection facilities, wastewater treatment facilities, internal drainage facilities, or outfall drainage facilities.(h) Standby fees as approved by the commission may be collected for monthly, quarterly or annual billing periods, but may not be imposed retroactively or in arrears beyond January 1 of the calendar year in which such standby fees are adopted unless authorized by the commission. A district may not require payment of standby fees in advance of a current billing period.(i) To the extent that standby fees are imposed and collected in contravention of applicable rules or order(s) of the commission, the commission may require that such improperly collected fees be refunded, together with interest thereon.</content><note type="source"><p>Source Note: The provisions of this §293.141 adopted to be effective December 17, 1990, 15 TexReg 6849; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scM/s293.142"><num value="293.142">§293.142</num><heading>Application Requirements for Imposition of Standby Fees To Be Used To Supplement the Debt Service Account</heading><content>(a) Only those districts which meet the following criteria may seek approval from the commission to use standby fee revenues to supplement the debt service account:(1) the district's combined tax rate as defined under §293.59(f) of this title (relating to Economic Feasibility of Projects) and calculated as described in subsection (c)(1) of this section, excepting standby fees and developer contribution, over the period over which standby fees are to be levied exceeds those limits defined under §293.59(k)(3) of this title, for the county in which the district is situated. Any increases in assessed valuation used in calculating the combined projected tax rate shall be based on historical growth rates experienced in the district; and(2) the district's actual buildout is less than the buildout projected under the most recent bond issue.(b) In determining whether a district which meets the requirements of subsection (a) of this section is to be allowed to impose standby fees and the amount of the standby fees authorized to be imposed, the following factors may be considered:(1) the tax rate projected in the district's most recent bond application;(2) actual buildout compared to projected buildout;(3) actual tax bill for various types of land uses compared to projected tax bills for such land uses, which have resulted from increases or decreases in appraised values or the granting or denial of exemptions or special valuations;(4) historical tax rates of the district;(5) whether the developer(s) or other landowner(s) have made or have agreed to make contributions;(6) whether the developer(s) or other landowner(s) have materially reduced the value of their unimproved property from that projected in the district's bond application or other representations to the district;(7) the availability of other funds such as impact fee revenue for debt service purposes or the availability of advance refunding to reduce debt service;(8) a comparison of actual buildout to projected buildout as between various developers or landowners within the district; and(9) evidence of an active building program not otherwise demonstrated by historical growth rates.(c) Standby fee amounts shall be determined so that:(1) the resultant combined projected tax rate as defined under §293.59(f) of this title is not less than those limits defined under §293.59(k)(3) of this title when calculated based on:(A) the current debt service fund balance, less 25% of the average annual debt service payment, being drawn down equally over the life of the outstanding bonds;(B) interest earnings on the ending debt service fund balance being applied toward the next year's debt service payments for the first two years of a standby fee levy;(C) the cumulative ending debt service fund balance not increasing to an amount greater than 25% of the next year's debt service payment; and(D) not less than 90% collection of ad valorem taxes and standby fee(s) unless the district's historical collection rate(s) justify different percentage(s);(2) the total taxes and standby fee assessment for debt service for water, wastewater, and drainage facilities against undeveloped property does not exceed the amount of district taxes levied for water, wastewater, and drainage facilities against a comparable lot or tract with completed improvements. In the absence of a comparable lot or tract with completed improvements, the projected value of the lot or tract with completed improvements as contained in the district's bond application(s) shall be used; and(3) in the case of nonuniform standby fees, the relative standby fee assessments are consistent with the level of service available. A suggested form for calculating nonuniform fees may be obtained from the commission on request.(d) Applications shall include the following items.(1) a filing fee of $100;(2) a certified copy of a board resolution which shall contain a request for commission approval of the fee and shall state the designated fund to which standby fee revenues will be applied, the amount of the fee, the three years for which the fee is proposed for levy, and the projected debt service and operations and maintenance tax rates the district expects to achieve through the levy of the standby fee;(3) a map of the district (not larger than 24 inches by 36 inches) which shall clearly designate the properties against which the proposed standby fee will be levied. If such information cannot be located in agency files, the executive director may require that water, wastewater, and drainage facilities serving those properties and financed by the district be identified. An accounting of district-financed water supply, wastewater treatment facilities, and drainage facilities and capacity available in those facilities may also be required;(4) a copy of the most recent tax appraisal roll by the Central Appraisal District accompanied by a table prepared by the district which delineates the district's assessed valuation. The table should list each component of the district's assessed valuation attributable to raw acreage and acreage with and without vertical improvements. The component attributable to acreage with vertical improvements should be further divided into single family residential sections according to similar home value, multi-family sections, commercial sections, industrial sections, and any other type of vertical development existing within the district;(5) a table which compares the cumulative buildout for the current fiscal year to the cumulative buildout for the same fiscal year projected at the time of the bond issue. Indicate according to section, the number of lots, homes, commercial and industrial development, etc., and raw acreage within the district;(6) a list by source of the following tax rates:(A) the combined tax rate projected at the time of the most recent bond issue;(B) the actual combined tax rate set for the current fiscal year; and(C) the combined tax rate projected over the period during which the standby fee will be levied. Any increases in assessed valuation for this calculation should be based on the district's historical growth rate.(7) a debt service schedule for all bonds outstanding.(8) a cash flow table based on the reduced combined projected tax rate the district expects to achieve through the standby fee levy. Distinguish between debt service revenues obtained from taxes and other sources of debt service revenues. List as a separate column the additional revenues required to produce the reduced debt service tax rate. Any increases in assessed valuation shown on this table should be based on the historical buildout rate experienced in the district. If the district's assessed valuation has been declining, show the assessed valuation as fixed at the current value. The district shall use the latest certified assessed value or estimated assessed valuation provided by the central appraisal district.(9) a comparison of the actual versus the approved cost summary from the district's most recent bond issue with separate costs shown for water, wastewater and drainage projects.(10) any other information as the executive director may require to assure that the fees are consistent with the criteria contained herein.(11) in the event that a district provides the executive director with a written consent of all landowners of undeveloped property in the district identified on the district's tax rolls and of all mortgagees of undeveloped property who have submitted a written request to be informed of any hearing pursuant to §293.145 of this title (relating to Public Hearing and Notice Requirements), to the proposed levy of standby fees, the district shall be exempted from the requirements of paragraphs (4) and (5) of this subsection except that the district shall provide a copy of the most recent tax appraisal roll by the central appraisal district.</content><note type="source"><p>Source Note: The provisions of this §293.142 adopted to be effective December 17, 1990, 15 TexReg 6849; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scM/s293.143"><num value="293.143">§293.143</num><heading>Application Requirements for Standby Fees to be Used to Supplement the Operation and Maintenance Fund</heading><content>(a) In calculating standby fees to be used to supplement the operation and maintenance fund, the following definitions apply.(1) Connection, as used in this section, means a standardized measure of consumption, use, generation, or discharge attributable to an individual unit of development calculated in accordance with generally accepted engineering, or planning standards. Connections shall be used to calculate the standby fee. Connections may be described in terms of single family equivalent connections, living unit of equivalents, or any other generally accepted unit of consumption typically attributable to a single family household. The assumed population equivalent per connection should be indicated.(2) Active connection, as used in this section, means a lot or tract with vertical improvements and a meter in service for which water and/or wastewater usage is billed.(3) Inactive connection, as used in this section, means a lot or tract with existing vertical improvements, and where water and/or wastewater connections were made but such service is not being provided nor billed.(4) Undeveloped property (expressed in terms of connections), as used in this section, means a tract, lot or reserve in the district to which no water or wastewater connections or drainage services exist and for which:(A) water, wastewater, or drainage facilities and services are available;(B) water supply, wastewater treatment plant capacity, or drainage capacity sufficient to serve any portion of the property is available; or(C) major water supply lines, wastewater collection lines, or drainage facilities with capacity sufficient to serve any portion of the property are available.(b) Only those districts which meet the following criteria may seek approval from the commission to use standby fee revenue to supplement the operation and maintenance fund:(1) all capitalized funds or reserves for operating purposes which were derived from all prior bond issues (except an amount not to exceed a three-month reserve) have been depleted or are projected to be depleted within the three years in which the standby fees are to be levied; and(2) the operation and maintenance fund is operating at a deficit or is projected to operate at a deficit within the three years in which the standby fees are to be levied with:(A) rates for the first 10,000 gallons of water and wastewater usage for residential users (or equal or greater amounts for other users) which exceed $40; or(B) rates for the first 10,000 gallons of usage for residential users (or equal or greater amounts for other users) which exceed $27 if the district is a provider of only water or wastewater service.(c) In determining the revenue to be generated from water and wastewater rates if such rates do not equal or exceed the rates stated in subsection (b)(2) of this section, an amount will be added to the minimum charge such that the total bill for 10,000 gallons of usage will equal the rates stated in subsection (b)(2) of this section.(d) Standby fee amounts shall be determined so that all of the following are true:(1) The total revenue projected to be generated from the fee is not more than that necessary to balance the projected operation and maintenance budget assuming:(A) a 90% collection rate of the proposed fee;(B) maintenance tax revenue based on a 90% collection rate is applied toward the budget;(C) all of the water, wastewater, or drainage revenue projected for the coming year is applied toward the budget, with rates or revenues established or assumed at an amount equal to or higher than those in the preceding subsection (b)(2) of this section; and(D) an operating reserve not to exceed three months included in the first year's budget if that reserve is not already existing.(2) The fee amount shall not exceed the rate charged to active connections for 10,000 gallons actual water and wastewater usage;(3) The fee amount equitably distributes the fixed costs of operating and maintaining the district's water, wastewater, or drainage facilities among active connections, inactive connections, and undeveloped property owners. In the absence of an allocation of a district's budget to fixed and variable expenses in an application, the staff shall make its own determination based on a predetermined fixed and variable allocation, a copy of which shall be made available from the executive director. A district may submit, with supporting and substantiating documentation, an allocation specific to that district.(e) In determining whether a district which meets the foregoing requirements be allowed to impose standby fees for operation and maintenance revenue and the amount of the standby fee levy against the various categories of development authorized to be imposed, the following factors may be considered:(1) the amount of the operating deficit;(2) the amounts charged or proposed to be charged for water and/or wastewater services usage;(3) the efficiency and prudence of utilization of operating funds;(4) the capacity of the various components of the system;(5) the projected buildout compared to actual buildout;(6) the amounts charged by districts with comparable land uses; and(7) maintenance tax levy, if any.(f) Applications shall include the following:(1) an application fee of $100;(2) a certified copy of a board resolution which shall contain a request for commission approval of the fee and shall state the designated fund to which standby fee revenues will be applied, the amount of the fee and the intervals or periods of billing for such standby fees (either monthly, quarterly or annually);(3) a proposal for the standby fee amount including substantiating calculations to show how the standby fee was derived;(4) a map of the district (not larger than 24 inches by 36 inches) which shall clearly designate the properties against which the proposed standby fee will be levied. If such information is not available within agency files, the executive director may require that water, wastewater, or drainage facilities serving those properties be identified. An accounting of water supply, wastewater treatment facilities, or drainage facilities and capacity available in those facilities may also be required.(5) a table indicating the ultimate number of connections according to section for which the district has water, wastewater, or drainage facilities. Indicate active connections, inactive connections, and the number of connections attributable to undeveloped property;(6) a copy of the district's operating budget for the past two years and the proposed budget for the coming year. Indicate those fixed costs required to operate and maintain the water, wastewater, or drainage facilities, including a proportionate share of consultant and organizational fees attributable to operating and maintaining the water, wastewater, or drainage facilities and those expenses not related to operating and maintaining the district's water, wastewater, or drainage facilities, such as operating a recreational facility;(7) an indication of revenues available for operation and maintenance costs and the sources of those revenues. Include water consumption records, wastewater flow records, or drainage maintenance records (if used in determining charge for service) for the previous two years and projected for the coming year as reflected in the proposed budget;(8) a certified copy of the district's most current order establishing the water and/or wastewater rates or drainage charges, as applicable;(9) any other information as the executive director may require to assure that the fees are consistent with the criteria contained herein;(10) in the event that a district provides the executive director with written consent of all landowners of undeveloped property in the district identified on the district's tax rolls and of all mortgagees of undeveloped property who have submitted a written request to be informed of any hearing pursuant to §293.145 of this title (relating to Public Hearing and Notice Requirements), to the proposed levy of standby fees, the district shall be exempted from the requirements of paragraphs (3), (5) and (6) of this subsection except that the district shall provide a copy of the district's operating budget for the past two years and the coming year.</content><note type="source"><p>Source Note: The provisions of this §293.143 adopted to be effective December 17, 1990, 15 TexReg 6849; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective September 14, 2000, 25 TexReg 8955.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scM/s293.144"><num value="293.144">§293.144</num><heading>Application Requirements for Imposition of Standby Fees To Supplement the Debt Service Account and the Operation and Maintenance Account</heading><content>Applications for standby fees to be used for both debt service costs and operation and maintenance costs should distinguish between that portion of the fee intended for debt service costs and that portion intended for operation and maintenance costs. Each application requirement listed under §293.142 of this title (relating to Application Requirements for Imposition of Standby Fees To Be Used To Supplement the Debt Service Account) and §293.143 of this title (relating to Application Requirements for Standby Fees To Be Used To Supplement the Operation and Maintenance Fund) should be addressed for that portion intended for debt service and that portion intended for operation and maintenance costs. Only one $100 filing fee is required.</content><note type="source"><p>Source Note: The provisions of this §293.144 adopted to be effective December 17, 1990, 15 TexReg 6849.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scM/s293.145"><num value="293.145">§293.145</num><heading>Public Notice Requirements</heading><content>(a) On receipt by the executive director of all required documentation associated with an application for standby fees as required by §§293.141-293.144 of this title (relating to Standby Fees, Application Requirements for Imposition of Standby Fees To Be Used To Supplement the Debt Service Account, Application Requirements for Standby Fees To Be Used To Supplement the Operation and Maintenance Fund, Application Requirements for Imposition of Standby Fees To Supplement the Debt Service Account and the Operation and Maintenance Account), the executive director shall notify the chief clerk that the application is administratively complete.(b) The chief clerk shall send a copy of a notice to the applicant indicating that an application has been received and notifying interested persons of the procedures for requesting a public hearing. The applicant shall cause the notice to be published and mailed as follows:(1) notice must be published once a week for two consecutive weeks in a newspaper regularly published or circulated in the county or counties where the district is proposed to be located with the last publication not later than the 30th day before the date on which the commission may consider the application.(2) The district shall send, not later than the 30th day before the date of consideration by the commission, copies of the notice by certified mail, return receipt requested, to each owner of undeveloped property in the district identified on the district's tax rolls. Notice must be provided by certified mail, return receipt requested, to each mortgagee of record that has submitted a written request to be informed of any application. The written request for notice must include the name and address of the mortgagee, the name of the property owner in the district, and a brief property description.(c) The district shall submit an affidavit certifying compliance with the requirements of subsection (b) of this section to the Commission at least one week prior to commission consideration.(d) The commission may act on an application without holding a public hearing if a public hearing is not requested by the commission, the executive director, or an affected person in the manner prescribed by commission rule during the 30 days following the final publication of notice under this section. If the commission determines that a public hearing is necessary, the chief clerk shall advise all parties of the time and place of the hearing. The commission is not required to provide public notice of a hearing under this subsection.</content><note type="source"><p>Source Note: The provisions of this §293.145 adopted to be effective December 17, 1990, 15 TexReg 6849; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scM/s293.146"><num value="293.146">§293.146</num><heading>District Actions Following Approval of a Standby Fee</heading><content>(a) The governing board of the district shall, within 30 days from the date of the adoption of a standby fee by the district pursuant to commission order, cause a certified copy of the commission order approving the standby fee and a certified copy of the district's order adopting the standby fee to be recorded in the office of the county clerk of each county in which a portion of the district lies.(b) The governing board of the district shall, within seven days from the date of the district's order adopting the standby fees, submit to the executive director and file with the county clerk of each county in which a portion of the district lies an update of the information required by Water Code, §49.452.</content><note type="source"><p>Source Note: The provisions of this §293.146 adopted to be effective December 17, 1990, 15 TexReg 6849; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scM/s293.147"><num value="293.147">§293.147</num><heading>Material Changes</heading><content>A developer or landowner who owns undeveloped property may petition the commission to review its authorization of standby fees if there is a material change in the financial condition of the district subsequent to the commission's approval. The burden of proof will be on the landowner to show that there has been a material change and that the district no longer meets eligibility requirements set forth in §293.142 of this title (relating to Application Requirements for Imposition of Standby Fees To Be Used To Supplement the Debt Service Account) and §293.143 of this title (relating to Application Requirements for Standby Fees To Be Used To Supplement the Operation and Maintenance Fund) or that the amount of the standby fee should be reduced. If the executive director is satisfied that the landowner has presented a prima facie case, then the district will be required to submit information and/or materials in rebuttal. Only if the landowner presents a prima facie case to the executive director will the commission review its authorization of a standby fee.</content><note type="source"><p>Source Note: The provisions of this §293.147 adopted to be effective December 17, 1990, 15 TexReg 6849.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scM/s293.148"><num value="293.148">§293.148</num><heading>Termination of Standby Fees</heading><content>(a) Commission approved standby fees other than those for drainage only shall cease and no longer be valid or enforceable with respect to a particular lot or parcel at the end of the current billing period, during which either a connection is made to the district's water distribution system or wastewater collection system and service is billed, or construction of the vertical improvements on such lot or parcel is completed.(b) Commission approved standby fees for drainage only shall cease and no longer be valid or enforceable with respect to a particular lot or parcel at the end of the current billing period, during which construction of the vertical improvements on such lot or parcel is completed.</content><note type="source"><p>Source Note: The provisions of this §293.148 adopted to be effective December 17, 1990, 15 TexReg 6849; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scM/s293.149"><num value="293.149">§293.149</num><heading>Deed Restrictions</heading><content>Standby fees and associated liens which inure to the benefit of a district and are authorized by recorded deed restrictions or covenants shall be enforceable in accordance with their terms and applicable general law and shall not be subject to review or approval by the commission.</content><note type="source"><p>Source Note: The provisions of this §293.149 adopted to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scM/s293.150"><num value="293.150">§293.150</num><heading>Variance Provision</heading><content>A district may request a variance to §293.142(a) and (c) of this title (relating to Application Requirements for Imposition of Standby Fees To Be Used To Supplement the Debt Service Account) and §293.143(b), (c), and (d) of this title (relating to Application Requirements for Standby Fees To Be Used To Supplement the Operation and Maintenance Fund) if it does not meet the guidelines contained in §293.142(a) of this title or §293.143(b) of this title; a majority of a district's board of directors finds by resolution that the district would be justified in requesting a variance; the fee was in place on August 28, 1989, and had been previously approved by the commission; and the elimination of the fee would cause a significant increase in the taxes or rates currently being assessed by the district. The district will be responsible for providing sufficient documentation to justify any request for a variance. The commission will only grant variances in exceptional cases and may deny any request for a variance.</content><note type="source"><p>Source Note: The provisions of this §293.150 adopted to be effective October 22, 1996, 21 TexReg 9905.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scN"><num value="N">SUBCHAPTER N</num><heading>PETITION FOR APPROVAL OF IMPACT FEES</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scN/s293.171"><num value="293.171">§293.171</num><heading>Definitions of Terms</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Actual costs under paragraph (1)(A) and (B) of this section, as determined by the district's governing board of directors, may include non-construction expenses attributable to the design, permitting, financing, and construction of those facilities, and reasonable interest on those costs calculated at a rate not to exceed the net effective interest rate on any district bonds issued to finance the facilities.(1) Impact fee--A charge or assessment imposed by a district against new development in order to generate revenue for funding or recouping the costs of capital improvements or facility expansions necessitated by and attributable to such new development. A charge or fee by a district for construction, installation, or inspection of a tap or connection to district water, wastewater, or drainage facilities, including all necessary service lines and meters, for capacity in storm water detention or retention facilities and related storm water conveyances, or for wholesale facilities that serve such water, wastewater, drainage, or storm water detention or retention facilities, shall not be deemed to be an impact fee under Local Government Code, Chapter 395 if the charge or fee:(A) does not exceed three times the actual and reasonable costs to the district for such tap or connection;(B) is made to a nontaxable entity for retail or wholesale service, does not exceed the actual costs to the district for such work and for all facilities that are necessary to provide district services to such entity and that are financed or are to be financed in whole or in part by tax-supported or revenue bonds of the district; or(C) is made by a district for retail or wholesale service on land that at the time of platting was not being provided with water, wastewater, drainage, or storm water detention or retention service by the district.(2) Capital improvement plan--Capital improvement plan means a plan which identifies capital improvements or facility expansions pursuant to which impact fees may be assessed.(3) Capital improvements--Capital improvements means water supply, treatment, and distribution facilities, wastewater collection and treatment facilities, storm water, and drainage, and flood control facilities, including facility expansions, whether or not located within the service area, with a life expectancy of three or more years, owned and operated by or on behalf of a district with authorization to finance and construct such facilities, but such term does not include materials and devices for making connections to or measuring services provided by such facilities to district customers.(4) Connection--Connection means a standardized measure of consumption, use, generation, or discharge attributable to an individual unit of development calculated in accordance with generally accepted engineering or planning standards. Connections shall be described in terms of single family equivalent connections, living unit equivalents, or other generally accepted unit typically attributable to a single family household. The assumed population equivalent per service unit shall be indicated.(5) Service area--Service area means an area within or without the boundaries of a district to be served by the capital improvements specified in the capital improvement plan. The service area may include all or part of the land within a district or land outside a district served by the facilities identified in the capital improvement plan.</content><note type="source"><p>Source Note: The provisions of this §293.171 adopted to be effective June 30, 1993, 18 TexReg 3758; amended to be effective April 15, 1994, 19 TexReg 2301; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715; amended to be effective October 6, 2002, 27 TexReg 9365; amended to be effective November 13, 2014, 39 TexReg 8730.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scN/s293.172"><num value="293.172">§293.172</num><heading>Information Required To Accompany Applications for Approval of Impact Fees</heading><content>Pursuant to the Local Government Code, §395.080, a district proposing to assess impact fees shall submit to the executive director an application for review. Upon submission of an application for review, the executive director has the responsibility for reviewing and the commission has the responsibility for approving or denying impact fee requests by all districts created pursuant to Article III, Section 52, or Article XVI, Section 59, of the Texas Constitution. Each application submitted shall contain the following:(1) a $100 filing fee;(2) a certified board resolution requesting approval of the impact fee and stating the amount of the proposed fee;(3) a capital improvements plan report prepared, signed, and sealed by a professional engineer registered to practice in the State of Texas and which identifies the proposed capital improvements for which impact fees will be assessed and which shall specifically include the following:(A) an accounting of the capacity of the existing facilities, the level of current usage, the outstanding capacity commitments, and any unallocated excess capacity. This information should be presented in terms of flows and in terms of connections;(B) an established land use plan including both the number of connections and the method used in determining the number of connections associated with each category of development;(C) a map of the service area (on sheets not larger than 24 inches by 36 inches) which clearly:(i) indicates the properties against which the impact fees shall be assessed;(ii) identifies proposed land uses;(iii) identifies existing facilities servicing the area including line sizes and approximate peak daily flow capacities; and(iv) identifies proposed facilities necessary to serve the area including line sizes and approximate peak daily flow capacities;(4) the projected number of connections attributable to the new development may not be based on a development period exceeding 10 years;(5) a table establishing the additional demand required by the new connections, including the level of consumption represented by a connection for each category of capital improvements. Justification must be provided if the consumption levels differ from the minimum design criteria established by the commission;(6) a description of the facilities intended to be financed through impact fees and a detailed analysis of all costs required to finance those improvements;(7) a detailed calculation of the impact fee amount, including a complete explanation of all assumptions used in the calculation. All terms used should be defined;(8) any other information as the executive director may require.</content><note type="source"><p>Source Note: The provisions of this §293.172 adopted to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scN/s293.173"><num value="293.173">§293.173</num><heading>Impact Fee Notice Actions and Requirements</heading><content>(a) On receipt by the executive director of all required documentation associated with an application for impact fees as required by §§293.171-293.172 of this title (relating to Definitions of Terms and Information Required To Accompany Applications for Approval of Impact Fees), the executive director shall notify the chief clerk that the application is administratively complete.(b) The chief clerk shall send to the applicant a copy of a notice indicating that an application has been received and notifying interested persons of the procedures for requesting a public hearing. The notice shall also:(1) be of sufficient size to be easily legible;(2) include an easily understandable map showing the location of the district in relation to roads and other major landmarks and designating the areas upon which impact fees will be imposed;(3) state the amount of the impact fee; and(4) state that the impact fee application and supporting information are available for inspection and copying in the commission's offices during regular business hours and that the capital improvements plan is available for inspection and copying at the district's office during regular business hours.(c) The applicant shall cause the notice to be published and mailed as follows:(1) Notice must be published once a week for two consecutive weeks in a newspaper regularly published or circulated in the county or counties where the district intends to levy an impact fee with the last publication not later than the 30th day before the date on which the commission may consider the application;(2) The district shall send not later than the 30th day before the date of consideration by the commission, notice of the application to each owner of property within the service area, as of the date of submitting the application to the executive director, unless good cause is shown why such notice should not be given. Ownership of the property shall be certified by the county tax assessor/collector from the county tax rolls or by the appraisal district for the county, as applicable, as of the date of submitting of the application to the commission; and(3) The district shall file an affidavit certifying compliance with the requirements of this subsection with the chief clerk at least one week prior to the date of consideration by the commission.(d) The commission may act on an application without holding a public hearing, if a public hearing is not requested by the commission, the executive director, or an affected person in the manner prescribed by commission rule during the 30 days following the final publication of notice under this section. If the commission determines that a public hearing is necessary, the chief clerk shall advise all parties of the time and place of the hearing. The commission is not required to provide public notice of a hearing under this subsection.</content><note type="source"><p>Source Note: The provisions of this §293.173 adopted to be effective June 30, 1993, 18 TexReg 3758; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scN/s293.174"><num value="293.174">§293.174</num><heading>Commission Actions Following Consideration of the Impact Fee Application</heading><content>(a) If the commission finds that the impact fee is reasonable, equitable, and necessary as a mechanism to finance improvements to serve the designated service area, the commission shall approve the capital improvements plan and impact fee. The commission may approve an impact fee amount that is different than the impact fee amount requested in the application for commission approval; however, in no event shall the commission approve an impact fee amount higher than the impact fee amount contained in the notice required under §293.173(b) of this title (relating to Impact Fee Notice Actions and Requirements).(b) The commission shall issue an order defining the impact fee to be imposed based on evidence presented.</content><note type="source"><p>Source Note: The provisions of this §293.174 adopted to be effective June 30, 1993, 18 TexReg 3758; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scN/s293.175"><num value="293.175">§293.175</num><heading>Material Changes</heading><content>A district's capital improvements plan may be amended from time to time as development needs of the district change; provided, however, that to the extent that such amendments constitute a revision of the impact fee structures, commission approval of the amended plan and impact fee shall be required. A property owner affected by an impact fee may petition the commission to review its authorization of impact fees if there is a substantial amendment to or change in the conditions described in the capital improvements plan subsequent to the commission's approval. The burden of proof will be on the landowner to show that there has been a substantial change which would materially change the amount or applicability of the impact fee. If the executive director is satisfied that the landowner has presented a prima facie case, the district will be required to submit information and/or materials in rebuttal.</content><note type="source"><p>Source Note: The provisions of this §293.175 adopted to be effective June 30, 1993, 18 TexReg 3758.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scN/s293.176"><num value="293.176">§293.176</num><heading>Prior Approval of Overlapping Impact Fees</heading><content>If a district is required to collect an impact fee for another political subdivision which has complied with the procedures set out in the Local Government Code, Chapter 395, then the district is not required to seek further approval from the commission of the same fee. A test for applying this section shall be that the district does not retain any portion of said impact fee for its own use, but that it passes all such fees through to the political subdivision which has adopted said impact fee.</content><note type="source"><p>Source Note: The provisions of this §293.176 adopted to be effective June 30, 1993, 18 TexReg 3758.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scO"><num value="O">SUBCHAPTER O</num><heading>APPEAL OF DECISION REGARDING FACILITIES CONSTRUCTED FOR A MUNICIPAL UTILITY DISTRICT</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scO/s293.180"><num value="293.180">§293.180</num><heading>Appeal of a Decision of the Board of Municipal Utility District Regarding Facilities Constructed for the District</heading><content>(a) A person aggrieved by a decision of a board of directors of a Municipal Utility District operating under the Water Code, Chapter 54 may appeal a decision that involves the cost, purchase, or use of improvements constructed by a developer for the district to the commission. Before such an appeal will be considered the following must be submitted:(1) A petition signed by the present or former property owners affected by the decision of the district board of directors must be filed with the chief clerk seeking appropriate relief within 30 days after the date of the decision. The petition shall contain:(A) a statement describing the nature of the dispute and how the board's decision affects the petitioner; and(B) evidence that the decision involves the cost, purchase, or use of improvements constructed by a developer for the district;(2) an initial deposit in the amount of $5,000 to be applied toward the commission's estimated costs to initiate the hearing on the appeal. An additional deposit in the amount of $5,000 shall be submitted by petitioner prior to an evidentiary hearing;(3) for appeals involving the cost or purchase of facilities, complete documentation of such cost and justification for the facilities;(4) a certified copy of minutes of the board meeting(s) which include the decision being appealed;(5) a cost summary itemizing any monetary claims by the aggrieved person;(6) documentation to support items included in the cost summary;(7) any other information as the executive director may require;(8) copies of any agreements with the district or other documentation from the district authorizing the petitioner to construct the improvements or to enter into contracts for the improvements;(9) copies of any reimbursements agreements executed by the district involving the improvements in question.(b) Notice Actions and Requirements.(1) The chief clerk of the commission shall set the petition for hearing, and issue notice thereof.(2) The district shall issue notice by sending, not later than the 30th day before the date of the hearing, notice of the hearing to each owner of property within the district, as of the date of submitting the application with the executive director, unless good cause is shown why such notice should not be given. Property ownership shall be as reflected by the county tax rolls or the records of the appraisal district for the county, whichever is more current. The district shall file an affidavit certifying compliance with the requirements of this subsection at least one week prior to the commission hearing. Ownership of the property shall be certified by the county tax assessor/collector from the county tax rolls or by the appraisal district for the county, as applicable, as of the date of submitting the application to the executive director.(c) Commission actions.(1) After notice and hearing, the commission shall render a written decision granting or denying the petition, in whole or in part.(2) In rendering its decision, the commission shall consider:(A) the suitability of and necessity for the facilities;(B) the reasonableness of the cost of the facilities;(C) the economic viability of the district; and(D) any other relevant evidence.(3) A record of actual cost for the commission to conduct preparations for and the hearing shall be maintained by the executive director and SOAH. An amount for indirect costs shall also be included. The commission may deduct its cost from the deposit. If the commission's cost exceeds the amount of the deposit, it may require payment of the additional amount from the petitioner prior to rendering its decision. If the commission's cost is less than the amount of the deposit, the surplus amount shall be returned to the petitioner.(4) If the commission finds that the district erred in its decision, it may direct the district to reimburse the petitioner(s) all or part of the deposit which the petitioner paid.</content><note type="source"><p>Source Note: The provisions of this §293.180 adopted to be effective January 12, 1994, 19 TexReg 83; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scP"><num value="P">SUBCHAPTER P</num><heading>ACQUISITION OF ROAD POWERS BY A MUNICIPAL UTILITY DISTRICT</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scP/s293.201"><num value="293.201">§293.201</num><heading>Acquisition of Road Powers by a Municipal Utility District</heading><content>(a) Texas Water Code (TWC), §54.234, authorizes a municipal utility district, or any petitioner seeking the creation of a municipal utility district, to petition the commission to acquire road powers.(b) This section and §293.202 of this title (relating to Application Requirements for Commission Approval) provide the requirements for petitioning the commission for road powers.</content><note type="source"><p>Source Note: The provisions of this §293.201 adopted to be effective September 5, 1986, 11 TexReg 3748; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective October 6, 2002, 27 TexReg 9365; amended to be effective May 5, 2005, 30 TexReg 2533; amended to be effective July 31, 2008, 33 TexReg 5936; amended to be effective October 29, 2020, 45 TexReg 7593.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scP/s293.202"><num value="293.202">§293.202</num><heading>Application Requirements for Commission Approval</heading><content>(a) A conservation and reclamation district, operating under Texas Water Code (TWC), Chapter 54, may submit to the executive director of the commission an application for road powers, which shall include the following documents:(1) a petition that will include a detailed narrative statement of the reasons for requesting road powers and the reasons why such powers will be of benefit to the district and to the land that is included in the district, signed by an authorized member of the board of directors of the district;(2) a certified copy of the resolution of the governing board of the district authorizing the district to petition the commission for road powers;(3) a certification that the district is operating under TWC, Chapter 54, with proper statutory references;(4) evidence that the municipality in whose corporate limits or extraterritorial jurisdiction that any part of the district is located has consented to the creation of the district with road powers or has consented to the district having road powers subsequent to creation, or that the provisions of TWC, §54.016, have been followed;(5) a certified copy of the latest audit of the district performed under TWC, §§49.191 - 49.194;(6) for districts that have not submitted an annual audit, a financial statement of the district, including a detailed itemization of all assets and liabilities showing all balances in effect not later than 30 days before the date that the district submits its request for approval with the executive director;(7) a preliminary layout showing the proposed location for all road facilities to be constructed, acquired, or improved by the district;(8) a cost analysis and detailed cost estimate of the proposed road facilities to be designed, acquired, constructed, operated, maintained, or improved by the district with a statement of the amount of bonds estimated to be necessary to finance the proposed design, acquisition, construction, operation, maintenance, and improvement;(9) a narrative statement that will analyze the effect of the proposed facilities upon the district's financial condition and will demonstrate that the proposed construction, acquisition, and improvement is financially and economically feasible for the district;(10) any other information that may be required by the executive director; and(11) a filing fee in the amount of $100.(b) A petition for creation of a district submitted under §293.11(a) and (d) of this title (relating to Information Required to Accompany Applications for Creation of Districts) may also include a request for road powers, with information required under subsection (a)(4) and (7) - (9) of this section, to also be provided.</content><note type="source"><p>Source Note: The provisions of this §293.202 adopted to be effective September 5,1986, 11 TexReg 3748; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective October 6, 2002, 27 TexReg 9365; amended to be effective May 5, 2005, 30 TexReg 2533; amended to be effective July 31, 2008, 33 TexReg 5936; amended to be effective October 29, 2020, 45 TexReg 7593.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c293/scQ"><num value="Q">SUBCHAPTER Q</num><heading>SPECIAL ACTIONS RELATING TO THE HARRIS-GALVESTON COASTAL SUBSIDENCE DISTRICT</heading><section identifier="/us/state/tx/tac/t30/p1/c293/scQ/s293.361"><num value="293.361">§293.361</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:(1) Board--Board of directors of the Harris-Galveston Coastal Subsidence District.(2) Monitoring--Water samples taken and analyzed, continuous water quality measurements, and/or physical measurements of water flow and pressure in certain water collection and distribution lines as deemed appropriate by the executive director to determine the groundwater and surface water percentages of alternative water supply.(3) Permit year--A 365-day period of time during which a person is authorized by the Harris-Galveston Coastal Subsidence District to use groundwater.(4) Samples--Water samples taken to determine groundwater and surface water percentages in the alternative water supply.(5) Water chemist--A person or persons with expertise in water chemistry designated by the executive director to be the principal investigator.</content><note type="source"><p>Source Note: The provisions of this §293.361 adopted to be effective November 7, 1988, 13 TexReg 5388; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scQ/s293.362"><num value="293.362">§293.362</num><heading>Request To Monitor Delivered Water</heading><content>(a) Upon the submittal of a written request pursuant to Water Code, §151.129, to the executive director by a person ordered by the board to completely or partially discontinue the use of groundwater, the executive director shall monitor the water delivered to the person from the alternative water supply as defined in Water Code, §151.129(f) to determine the percentage of that water supply that is surface water and the percentage that is groundwater. The request for monitoring must be submitted, together with the following information, to the executive director no later than six months prior to the end of the permit year immediately following the board's order. The submittal of an administratively complete request will entitle the person to monitoring not during that permit year, but during the first succeeding permit year, subject to the provisions of subsection (b) of this section. For purposes of Water Code, §151.129, a person shall be deemed to have been ordered to completely or partially discontinue the use of groundwater the board issues a permit that results in the person's use of surface water as an alternative water supply. For purposes of Water Code, §151.129, the request for monitoring shall be deemed made as of the first day of the permit year following the timely receipt by the executive director of an administratively complete request subject, however, to the provisions of subsection (b) of this section. The following information shall be provided to the executive director with the request for monitoring:(1) a layout of the existing facilities and distribution lines owned by the person, including without limitation, designation of all points of connection to any alternative water supply;(2) engineering specifications for facilities and lines described in paragraph (1) of this subsection;(3) results of previous investigations regarding percentages of groundwater and surface water supplied to the person making the request;(4) if the person is a political subdivision of the state, a copy of the resolution adopted by the governing body authorizing the request;(5) a certified copy of the permit for the year covered by the board's order;(6) if the person is a corporation, a resolution adopted by its board of directors authorizing the request; and(7) any additional information deemed relevant to the monitoring request and requested by the executive director.(b) If a person fails to comply fully with subsection (a) of this section, the person's alternative water supply will not be monitored during the permit year immediately succeeding the permit year covered by the board's order. Upon receipt of the information set forth in subsection (a) of this section, the monitoring request will be administratively complete.(c) After an appropriate review of the information submitted under subsection (a) of this section, if the executive director determines that the monitoring request is technically deficient, the executive director may request additional information from the person or the board, or both. The monitoring period shall not commence until six months from the date the application is deemed technically sufficient by the executive director.</content><note type="source"><p>Source Note: The provisions of this §293.362 adopted to be effective November 7, 1988, 13 TexReg 5388; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scQ/s293.363"><num value="293.363">§293.363</num><heading>Action on the Request To Monitor Delivered Water</heading><content>After an appropriate review of an administratively complete application, the executive director shall:(1) designate a principal staff investigator;(2) determine the method of investigation and monitoring consistent with good engineering practices and Water Code §151.129, and which will fairly determine and reflect the annual groundwater and surface water percentage of the alternative water supply;(3) determine requirements for field equipment;(4) determine the type, frequency, and number of necessary physical and chemical analyses, procedures with regard to collecting water samples, and location of monitoring and/or sampling stations;(5) determine the fee necessary to compensate the commission for the requested study on the basis of one-half to the water purchaser and one-half to the water seller; and(6) notify the board of the determinations made pursuant to paragraphs (1)-(5) of this section at a point prior to the commencement of the actual monitoring sufficient to give the board an opportunity to comment on the determinations prior to monitoring.</content><note type="source"><p>Source Note: The provisions of this §293.363 adopted to be effective November 7, 1988, 13 TexReg 5388; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scQ/s293.364"><num value="293.364">§293.364</num><heading>Analysis and Report</heading><content>The executive director shall prepare and issue not later than the 15th day after the last day of the permit year an annual certified report (written analysis) based on the investigation and monitoring, which will state the annual average percentages of surface water and groundwater provided to the purchaser by the seller of the alternative water supply for that permit year. The executive director's annual certified report shall be determinative and controlling for purposes of determining the percentages of surface water and groundwater in the alternative water supply pursuant to Water Code, §151.129.</content><note type="source"><p>Source Note: The provisions of this §293.364 adopted to be effective November 7, 1988, 13 TexReg 5388; amended to be effective October 22, 1996, 21 TexReg 9905.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c293/scQ/s293.365"><num value="293.365">§293.365</num><heading>Appeal of Final Decision of Board</heading><content>(a) A person who is granted a permit authorizing withdrawal of groundwater in an amount less than that requested by the person may appeal the final decision of the board to the commission by filing a request for commission review of the board's final decision with the executive director within 60 days after the final order of the board.(b) If the person appealing the final decision of the board to the commission has requested written findings and conclusions from the board, such findings and conclusions shall be submitted to the executive director either with the request for commission review if the findings and conclusions are then available or as soon thereafter as they become available.(c) The executive director may request additional information from the appellant, the board, or both concerning the final decision of the board. A request for commission review is administratively complete when all of the information requested, including the information requested in subsection (b) of this section, has been submitted. A complete application shall be delivered to the chief clerk for the setting of a hearing on the appeal.(d) The review on appeal by the commission under this section is governed by the substantial evidence rule as defined in the Administrative Procedure Act, Government Code, §2001.174. The final decision of the commission may adopt, modify or reject the findings and conclusions of the board. If the commission rejects the findings and conclusions of the board, it shall adopt its own findings of fact and conclusions of law. The commission shall issue a final ruling on the appeal no later than 60 days from the date the hearing on the appeal is closed.(e) The hearing on the appeal shall be conducted, to the extent applicable given the limited scope of review under the substantial evidence rule, in accordance with the procedural rules of the commission; provided, however, that such hearing shall not be conducted as a contested case, and the foregoing procedural rules shall apply only to the extent that they do not exceed the scope of the commission's review under the substantial evidence rule. Nothing herein shall be interpreted to give the person a right to a trial de novo or to introduce evidence other than the record of the proceedings before the Board.</content><note type="source"><p>Source Note: The provisions of this §293.365 adopted to be effective November 7, 1988, 13 TexReg 5388; amended to be effective October 22, 1996, 21 TexReg 9905; amended to be effective June 5, 1998, 23 TexReg 5715.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c294"><num value="294">CHAPTER 294</num><heading>PRIORITY GROUNDWATER MANAGEMENT AREAS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c294/scD"><num value="D">SUBCHAPTER D</num><heading>PRIORITY GROUNDWATER MANAGEMENT AREAS</heading><section identifier="/us/state/tx/tac/t30/p1/c294/scD/s294.30"><num value="294.30">§294.30</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to set out the boundaries of priority groundwater management areas (PGMAs) designated and delineated prior to September 1, 1997 under the Texas Water Code (TWC).(b) PGMAs designated after September 1, 1997 are delineated by commission order under TWC, Chapter 35, using the process contained in Subchapter E of this chapter (relating to Designation of Priority Groundwater Management Areas).</content><note type="source"><p>Source Note: The provisions of this §294.30 adopted to be effective August 29, 2002, 27 TexReg 7954; amended to be effective August 16, 2012, 37 TexReg 6068.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c294/scD/s294.31"><num value="294.31">§294.31</num><heading>Designation of Briscoe, Hale and Swisher County Priority Groundwater Management Area</heading><content>(a) Areas of Briscoe, Hale and Swisher County, as described in this section, are designated as a Priority Groundwater Management Area. (b) The Briscoe, Hale and Swisher County Priority Groundwater Management Area is composed of portions of Briscoe and Hale Counties and all of Swisher County. The portion of Briscoe County below the Caprock Escarpment and the portion of Hale County within the High Plains Underground Water Conservation District Number 1 are excluded from the Priority Groundwater Management Area. All remaining areas in Hale and Briscoe counties are included within the Priority Groundwater Management Area. (c) A General Description of Boundaries of the Briscoe, Hale and Swisher County Priority Groundwater Management Area is as follows: (1) beginning at northwest corner of Swisher County, the northern boundary extends to the east and is coterminous with the Swisher-Randall and Swisher-Armstrong County line; and (2) the boundary continues eastward along the Briscoe-Armstrong County line to the junction with the eastern boundary of Subdivision Number 1 of the Underground Water Reservoir, High Plains Area, Ogallala Formation, South of the Canadian River, in Briscoe County, as delineated by the Texas Board of Water Engineers in 1950; and (3) the boundary continues southerly along this boundary in Briscoe County to the southern Briscoe County line; then (4) west along Briscoe-Floyd and Swisher-Floyd County lines; then (5) south along the Hale-Floyd County line to the intersection with the boundary of the High Plains Underground Water Conservation District Number 1; then (6) generally west for approximately twelve miles; then (7) south along the High Plains Underground Water Conservation District boundary in Hale County line; then (8) west along the Hale-Lubbock County line to the intersection of the Hale and Lamb County lines; then (9) north along the Hale-Lamb County line to the intersection of the Hale and Castro County lines; then (10) east for approximately six miles along the Hale-Castro County line; then (11) north along the eastern boundary between Hale and Castro Counties to the northwest corner of Swisher County. (d) The boundaries of the Briscoe, Hale and Swisher County Priority Groundwater Management Area are outlined in the map attached as Exhibit A to this section. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §294.31 adopted to be effective February 21, 1999, 24 TexReg 965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c294/scD/s294.32"><num value="294.32">§294.32</num><heading>Designation of Dallam County Priority Groundwater Management Area</heading><content>(a) An area of Dallam County, as described in this section, is designated as a Priority Groundwater Management Area. (b) The Dallam County Priority Groundwater Management Area is composed of Dallam County except for the area within the Dallam County Underground Water Conservation District Number 1, which is excluded from the Priority Groundwater Management Area. (c) A General Description of Boundaries of Dallam County Priority Groundwater Management Area is as follows: (1) starting at the northeastern corner of Dallam County, the eastern boundary is coterminous with the Dallam County - Sherman County Line; then (2) the boundary continues west along the Dallam-Hartley County Line to the border between Texas and New Mexico; then (3) north along the western Dallam County - New Mexico state line to the northwest corner of Dallam County; then (4) the boundary turns eastward along the Dallam County-Oklahoma state line to the junction with the boundary of the Dallam County Underground Water Conservation District Number 1; then (5) the boundary follows the district boundary until it again intersects with the Dallam County-Oklahoma State line; then (6) the boundary continues east to the northeast corner of Dallam County. (d) The boundaries of the Dallam County Priority Groundwater Management Area and outlined in the map attached as Exhibit A to this section. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §294.32 adopted to be effective February 21, 1999, 24 TexReg 965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c294/scD/s294.35"><num value="294.35">§294.35</num><heading>Designation of Reagan, Upton, and Midland County Priority Groundwater Management Area</heading><content>(a) Portions of southeastern Midland County, northeastern Upton County and northern Reagan County are designated as a Priority Groundwater Management Area. (b) A General Description of Boundaries of the Reagan, Upton and Midland County l Priority Groundwater Management Area is as follows: (1) beginning at the northwest corner of Reagan County, which is also the point where Glasscock, Reagan, Upton and Midland Counties meet; then (2) east along the county line to the Sterling County line; then (3) south along the line Reagan-Sterling County line to the Section 1, S-46675, Block A, T.&P RR Survey; then (4) west along Section 41, S-37369 of said Blocks; then (5) to Section 3, S-46677 of said Block and Survey; then (6) west to the eastern line of Block F, Longview & Sabine Valley Ry County; then (7) south southeast along said Block to the lower line of Section 21, S-46695, Black A, T&P RRC Surveys; then (8) west southwest to the northwest corner of Section 11, S-37120, G.C.&S.F. Ry County Survey; then (9) south along the eastern line of Sections 12 and 13 of said Survey continuing to the northern line of Block 58 of University Land; then (10) west and south along the eastern line of Section 29 of said Block and Survey continuing along Section 3, Block 10 of said Survey; then (11) to the Reagan-Upton County line; then (12) west to the western line of Block 58 of said Survey; then (13) west along the northern line of Sections 1 and 2, Block G, G.C. & S.F. Ry County Survey continuing along Sections 8, 12, and 13, Block A to Section 1, Block 3 1/2, M.K. & T. RR County; then (14) north along the eastern edge of Section 6, Block 1, J.E. Hamilton Survey to the south line of Block Y G.C. & S.F. Ry County Survey; then (15) north northwest along the eastern side of Sections 81, 76, and 65, Block Y; then (16) west southwest to the corner of the Section; then (17) north northwest between Blocks E and D and Blocks 42 and 41 continuing to the Upton-Midland County line; then (18) continuing north northwest to the northwest corner of Section 6, #88353, Block 41, Texas and Pac RY County; then (19) east northeast to the Midland-Glassrock County line; then south along the county line to the starting point. (c) The boundaries of the Reagan, Upton, and Midland County Priority Groundwater Management Area are delineated on the maps attached as Exhibit A to this section.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §294.35 adopted to be effective February 21, 1999, 24 TexReg 965.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c294/scE"><num value="E">SUBCHAPTER E</num><heading>DESIGNATION OF PRIORITY GROUNDWATER MANAGEMENT AREAS</heading><section identifier="/us/state/tx/tac/t30/p1/c294/scE/s294.39"><num value="294.39">§294.39</num><heading>Purpose</heading><content>The purpose of this subchapter is to provide the procedures for the designation of priority groundwater management areas, including recommendations for the creation of groundwater conservation districts.</content><note type="source"><p>Source Note: The provisions of this §294.39 adopted to be effective August 29, 2002, 27 TexReg 7954.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c294/scE/s294.40"><num value="294.40">§294.40</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Affected person--A landowner, water well owner, or other user of groundwater in the proposed priority groundwater management area (PGMA), a groundwater conservation district adjacent to the proposed PGMA, a regional water planning group with a water management strategy in the proposed PGMA, or a person who has groundwater rights in the proposed PGMA.(2) Executive administrator--The executive administrator of the Texas Water Development Board.(3) Priority groundwater management area (PGMA)--An area designated and delineated by the commission that is experiencing or is expected to experience, within the immediately following 50-year period, critical groundwater problems including shortages of surface water or groundwater, land subsidence resulting from groundwater withdrawal, or contamination of groundwater supplies.(4) Texas Water Development Board (TWDB)--The agency responsible for water planning and administration of financial programs for the planning, design, and construction of water supply, wastewater treatment, flood control, and agricultural water conservation projects.</content><note type="source"><p>Source Note: The provisions of this §294.40 adopted to be effective February 21, 1999, 24 TexReg 965; amended to be effective August 29, 2002, 27 TexReg 7954; amended to be effective August 16, 2012, 37 TexReg 6068.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c294/scE/s294.41"><num value="294.41">§294.41</num><heading>Priority Groundwater Management Area Identification, Study, and Executive Director's Report Concerning Designation</heading><content>(a) The executive director shall confer periodically with the executive administrator according to Texas Water Code (TWC), §35.007 to identify areas of the state that may be experiencing or expected to experience critical groundwater problems within the immediately following 50-year period. (b) If the executive director concludes that an area of the state should be evaluated to determine if it justifies designation as a priority groundwater management area (PGMA), the executive director shall prepare a report and recommendations for consideration by the commission. (c) The executive director shall provide written notice to groups identified under paragraphs (1) and (2) of this subsection that an area is to be evaluated to determine if it warrants designation as a PGMA according to TWC, §35.007(c). This notice will provide the opportunity for water stakeholders and others identified in paragraph (2) of this subsection to comment or provide studies or other information for use in the executive director's evaluation. (1) The notice shall be provided to water stakeholders who are the governing body of each county, regional water planning group, adjacent groundwater conservation district (GCD), municipality, river authority, water district, or other entity that supplies public drinking water, including each holder of a certificate of convenience and necessity issued by the commission, and each irrigation district, located either in whole or in part in the proposed PGMA study area. (2) The notice shall also be provided to the Texas Department of Agriculture (TDA), the Texas AgriLife Extension Service, and to the legislators whose districts are included in the proposed PGMA study area. (3) Not later than the 45th day after the date of the notice, a person who receives notice under paragraph (1) of this subsection may submit to the executive director any existing information, local water supply or quality studies, or site-specific geological information that addresses the shortages of surface water or groundwater, land subsidence resulting from groundwater withdrawal, or contamination of groundwater supplies. (4) The executive director shall consider this information in preparing the report and recommendations for the commission. (d) The executive director shall begin preparation of a PGMA report by requesting a study from the executive administrator. The study must: (1) include an appraisal of the hydrogeology of the area and other matters within the TWDB's planning expertise relevant to the area; (2) assess the area's immediate, short-term, and long-term water supply needs and availability; and (3) be completed and delivered to the executive director within 180 days following the date of the request. If the study is not delivered within this 180-day period, the executive director may proceed with the preparation of the report under this section. (e) The executive director shall request a study from the executive director of the Texas Parks and Wildlife Department (TPWD) for the purpose of preparing the report required by this section. The study must: (1) evaluate the potential effects of the designation of a PGMA on an area's natural resources; and (2) be completed and delivered to the executive director within 180 days following the date of the request. If the study is not delivered within this 180-day period, the executive director may proceed with the preparation of the report under this section. (f) The executive director shall provide opportunity for TDA to submit information related to the PGMA study as identified in the notice provided under subsection (c) of this section. Information shall be submitted to the executive director within 180 days following the date of the notice. (g) The executive director must complete the report and file it with the chief clerk within 240 days following the date on which the executive administrator was requested to produce a study. (1) The executive director's report shall include: (A) the recommended delineation of the boundaries of any proposed PGMA in the form of a proposed order to be considered for adoption by the commission; (B) the reasons and supporting information for or against designating the area as a PGMA or adding the designated area to an existing PGMA; (C) a recommendation of actions to be considered to conserve natural resources; (D) an evaluation of information or studies submitted to the executive director under this section; (E) if the designation of a PGMA is recommended, a recommendation regarding whether one or more GCDs should be created in the PGMA, whether the PGMA should be added to an existing GCD, or whether a combination of these actions should be taken; (F) a recommendation regarding the area and boundaries for any GCD recommended under this subsection; (G) an evaluation of the estimated revenue available to finance groundwater management planning, regulatory, and district-operation functions under TWC, Chapter 36, for any GCD recommended under this subsection; and (H) any other information that the executive director considers helpful to the commission. (2) To prepare the report, the executive director may conduct necessary studies, hold public meetings, solicit and collect information, or use information prepared by the executive director, the executive director of the TPWD, the TDA, or the executive administrator of the TWDB for other purposes. (h) Concurrent with filing the report with the chief clerk, the executive director shall make the report available for public inspection on the agency website and provide a copy of the report to at least one public library and the county clerk's office in each county in which the proposed PGMA is located, and to all GCDs adjacent to the proposed PGMA. (i) Within 30 days of filing the report with the chief clerk, the executive director may publish notice in the Texas Register that this report has been prepared, present a summary of its findings and recommendations, and indicate where copies of the report may be obtained or inspected. If the executive director decides to publish notice, this notice shall also be mailed to the same persons who received notice of the initiation of the PGMA study under subsection (c) of this section.</content><note type="source"><p>Source Note: The provisions of this §294.41 adopted to be effective February 21, 1999, 24 TexReg 965; amended to be effective August 29, 2002, 27 TexReg 7954; amended to be effective August 16, 2012, 37 TexReg 6068.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c294/scE/s294.42"><num value="294.42">§294.42</num><heading>Commission Action Concerning PGMA Designation</heading><content>(a) If the executive director concludes in the report that the area studied is not a priority groundwater management area (PGMA), no further action by the executive director or the commission is necessary. However, any person may file a motion to overturn under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).(b) If the executive director recommends that the area be designated a PGMA or added to an existing PGMA, or if the commission overturns the executive director's conclusion in subsection (a) of this section, the commission shall consider the executive director's PGMA report and recommendations developed under §294.41 of this title (relating to Priority Groundwater Management Area Identification, Study, and Executive Director's Report Concerning Designation) using the following procedures.(1) The commission shall hold an evidentiary hearing. On behalf of the commission, the executive director may refer the evidentiary hearing directly to the State Office of Administrative Hearings (SOAH). At the evidentiary hearing, the commission or the administrative law judge shall consider:(A) whether the proposed PGMA should be designated or added to an existing PGMA;(B) whether one or more groundwater conservation districts (GCDs) should be created within all or part of the proposed PGMA, whether all or part of the land in the PGMA should be added to an existing GCD, or whether a combination of these actions should be taken; and(C) the feasibility and practicability of each GCD recommendation. To determine the feasibility and practicability of each GCD recommendation, the commission or the administrative law judge shall consider:(i) whether the recommended GCD can effectively manage groundwater resources under the authorities provided in Texas Water Code (TWC), Chapter 36;(ii) whether the boundaries of the recommended GCD provide for the effective management of groundwater resources; and(iii) whether the recommended GCD can be adequately funded to finance required or authorized groundwater management planning, regulatory, and district-operation functions under TWC, Chapter 36.(2) The evidentiary hearing shall be held in one of the counties in which the PGMA is proposed to be located or in the nearest convenient location if adequate facilities are not available in those counties.(3) The chief clerk shall publish notice of the evidentiary hearing in at least one newspaper with general circulation in the area proposed for PGMA designation. The notice must be published no later than 30 days before the first date set for the hearing. Notice of the evidentiary hearing must include:(A) if applicable, a statement of the general purpose and effect of designating the proposed PGMA;(B) if applicable, a statement of the general purpose and effect of creating a new GCD in the proposed PGMA;(C) if applicable, a statement of the general purpose and effect of adding all or part of the land in the proposed PGMA to an existing GCD;(D) a map generally outlining the boundaries of the area being considered for PGMA designation or notice of the location at which a copy of the map may be examined or obtained;(E) a statement that the executive director's report on the proposed PGMA is available for inspection during regular business hours at the commission's main office in Austin, Texas, at regional offices of the commission which include territory within the proposed PGMA, and on the agency's website;(F) the name and address of each public library, each county clerk's office, and each GCD that has been provided copies of the executive director's report; and(G) the date, time, and place of the hearing.(4) The chief clerk shall also mail written notice of the date, time, place, and purpose of the hearing to the governing body of each county, regional water planning group, adjacent GCD, municipality, river authority, water district, or other entity which supplies public drinking water, including each holder of a certificate of convenience and necessity issued by the commission, and of each irrigation district, located either in whole or in part in the PGMA or proposed PGMA. This notice shall be mailed at least 30 days before the date set for the hearing.(5) The evidentiary hearing must be conducted within 75 days of the date that notice was provided under paragraph (3) of this subsection. At the hearing, the commission or the administrative law judge shall hear testimony and receive evidence from affected persons, and consider the executive director's report and supporting information. The commission or the administrative law judge may request additional information from any source if further information is considered necessary to make a decision. If the commission or administrative law judge requests additional information, the parties will be allowed to examine this information and present any necessary evidence related to the additional information.(6) If the hearing is remanded to SOAH, the administrative law judge shall at the conclusion of the hearing, issue a proposal for decision stating findings, conclusions, and recommendations. The administrative law judge shall file findings and conclusions with the chief clerk.(c) The commission shall consider the findings, conclusions, and recommendations determined from the evidentiary hearing. The commission shall order one or more of the following actions.(1) Except as provided in paragraph (3) of this subsection, if the commission decides that an area should be designated as a PGMA or adds the area to an existing PGMA, the commission shall designate and delineate the boundaries of the PGMA.(2) If the commission designates the area as a PGMA or adds the area to an existing PGMA, the order must recommend that the area be covered by a GCD by either creation of one or more new GCDs, by addition of the land in the PGMA to one or more existing GCDs, or by a combination of these actions. The commission shall give preference to GCD boundaries that are coterminous with the boundaries of the PGMA, but may recommend GCD boundaries based upon existing political subdivision boundaries to facilitate creation of a GCD.(3) If the commission does not designate the area as a PGMA, the commission shall issue an order stating that the PGMA shall not be designated.(4) If the commission finds that a GCD created under TWC, Chapter 36 would not be feasible or practicable for the protection of groundwater resources in the PGMA, the commission may recommend in its report to the legislature under TWC, §35.018, the creation of a special district or amendment of an existing district's powers and authorities.(5) The designation of a PGMA may not be appealed nor may it be challenged under TWC, §5.351 or Texas Government Code, §2001.038.</content><note type="source"><p>Source Note: The provisions of this §294.42 adopted to be effective February 21, 1999, 24 TexReg 965; amended to be effective August 29, 2002, 27 TexReg 7954; amended to be effective August 16, 2012, 37 TexReg 6068; amended to be effective May 14, 2020, 45 TexReg 3099.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c294/scE/s294.43"><num value="294.43">§294.43</num><heading>Actions Required After PGMA Designation</heading><content>(a) The commission shall provide copies of a priority groundwater management area (PGMA) designation order under §294.42 of this title (relating to Commission Action Concerning PGMA Designation) to the commissioners court of any county that is affected by the designation of the PGMA, the Texas AgriLife Extension Service (TAES), and any existing groundwater conservation districts (GCDs) that are adjacent to the PGMA.(b) The executive director shall request an educational outreach program under this subsection after the commission designates a PGMA under §294.42 of this title.(1) The executive director shall notify the TAES of the PGMA designation and assist in educational programming developed by the TAES under Texas Water Code (TWC), §35.012(c).(2) The executive director shall notify the commissioners court of each county of the court's educational programming responsibilities in the PGMA under TWC, §35.012(c).(c) No sooner than 120 days after the date the commission designated the PGMA under §294.42 of this title, the executive director shall review the status of locally-initiated GCD creation in the PGMA.(d) The executive director shall identify the areas of the PGMA that are not within a GCD and develop recommended district boundaries that are consistent with the commission's PGMA designation order under §294.42 of this title.(e) If landowners do not take actions to create a GCD under TWC, §35.012(b), within two years after the date the commission designated the PGMA, the commission shall initiate creation of one or more GCDs under §293.19 of this title (relating to Creation of Groundwater Conservation Districts in Priority Groundwater Management Areas).(f) The commission may amend the territory in an order issued for a PGMA under §294.42 of this title to adjust for areas that, in the time between when the order was issued under §294.42 of this title relating to PGMA designation and the order issued under this section that have been added to an existing district or created as a separate district.(g) In making a modification under subsection (f) of this section, the commission may recommend:(1) creation of a new district in the area; or(2) that the area be added to a different district.(h) Except as provided by TWC, §35.013(h), a change in the order under subsection (f) of this section does not affect a deadline under TWC, §35.012 or §35.013.</content><note type="source"><p>Source Note: The provisions of this §294.43 adopted to be effective February 21, 1999, 24 TexReg 965; amended to be effective August 29, 2002, 27 TexReg 7954; amended to be effective August 16, 2012, 37 TexReg 6068.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c294/scE/s294.44"><num value="294.44">§294.44</num><heading>Adding a PGMA to an Existing Groundwater Conservation District</heading><content>(a) The executive director shall give notice to the board of directors of the existing groundwater conservation district (GCD), if the commission issues an order under §294.42 of this title (relating to Commission Action Concerning PGMA Designation), or under §293.19 of this title (relating to Creation of a Groundwater Conservation District in a Priority Groundwater Management Area) recommending that a priority groundwater management area (PGMA) or a portion of a PGMA be added to an existing GCD. The executive director shall provide a copy of the order to the board of directors of the existing GCD to which the commission is recommending the PGMA be added and to any other existing GCDs adjacent to the PGMA.(b) Within 120 days after receipt of the notice provided under subsection (a) of this section, the board of directors of the existing GCD shall advise the commission of the outcome of the board of directors vote to add the PGMA or a portion of the PGMA under Texas Water Code (TWC), §35.013.(c) If the board of directors of the GCD votes not to pursue addition of the PGMA as recommended by the commission, the commission shall either:(1) within one year create one or more GCDs according to TWC, §36.0151 and §293.19 of this title; or(2) recommend the area be added to another existing GCD as provided by this section.(d) If the commission determines that creating a district under TWC, Chapter 36 within the boundaries of a designated PGMA is not appropriate or capable of protecting the groundwater resources for a particular management area or PGMA and all efforts to add a PGMA to one or more GCDs have failed, the commission may recommend to the legislature under TWC, §35.018(c), in its biennial report, whether legislative action should be taken to create a special law district or amend an existing district's authority to manage the groundwater resources in the PGMA.</content><note type="source"><p>Source Note: The provisions of this §294.44 adopted to be effective February 21, 1999, 24 TexReg 965; amended to be effective August 29, 2002, 27 TexReg 7954; amended to be effective August 16, 2012, 37 TexReg 6068.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c295"><num value="295">CHAPTER 295</num><heading>WATER RIGHTS, PROCEDURAL</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c295/scA"><num value="A">SUBCHAPTER A</num><heading>REQUIREMENTS OF WATER RIGHTS APPLICATIONS GENERAL PROVISION</heading><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.1"><num value="295.1">§295.1</num><heading>Use of Forms</heading><content>The executive director will furnish, without charge, forms and instructions for preparing an application. The use of such forms is not mandatory, but the information required by such forms must be provided in any event. Supplements may be attached if there is not sufficient space on the printed form. If supplements are used, the data and information entered thereon shall be separated into paragraphs numbered to correspond with those on the printed form. A supplement explaining the project and planned operation may be attached to an application.</content><note type="source"><p>Source Note: The provisions of this §295.1 adopted to be effective May 28, 1986, 11 TexReg 2324.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.2"><num value="295.2">§295.2</num><heading>Preparation of Application</heading><content>(a) All applications shall be typewritten or printed legibly in ink. Illegible applications will be returned to the applicant. Applicants will be notified if additional information is needed to process an application, under §281.4 of this title (relating to Applications for Use of State Water). The applicant should confer with the staff of the executive director on any questions concerning preparation of the application, especially if the application is unusual or unique. Upon express written or verbal approval of the applicant or the applicant's agent, any employee of the commission may make nonsubstantive changes in any documents submitted by the applicant. Substantive changes in an application may be made only by the applicant or the applicant's agent who submitted the application and only in the form of a written, notarized amendment to the application signed by the proper person; provided, however, that no substantive changes may be made after an application has been filed with the chief clerk of the commission by the executive director.(b) All applicants shall submit one original and six copies of the application and supporting materials. In addition to the original notarized application form, if approved by the executive director, an applicant may submit electronic versions of required application documents.</content><note type="source"><p>Source Note: The provisions of this §295.2 adopted to be effective May 28, 1986, 11 TexReg 2324; amended to be effective August 31, 2006, 31 TexReg 6751.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.3"><num value="295.3">§295.3</num><heading>Name and Address</heading><content>For each applicant, the full name, post office address, telephone number, and social security or federal identification number shall be given. If the applicant is a partnership, it shall be designated by the firm name followed by the words "a partnership.' If the applicant is acting as trustee for another, it shall be designated by the trustee's name followed by the word "trustee.' If one other than the named applicant executes the application, the name, position, post office address, and telephone number of the person executing the application shall be given.</content><note type="source"><p>Source Note: The provisions of this §295.3 adopted to be effective May 28, 1986, 11 TexReg 2324.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.4"><num value="295.4">§295.4</num><heading>Source of Supply</heading><content>The applicant shall clearly state the name of the source from which the diversion or use of water is proposed. Source refers not to the origin of the water, but to the stream, spring, or body of water from which the proposed diversion will be made. If the source has no name, it may be designated as an unnamed watercourse or an unnamed spring. If the source is a tributary, the next stream into which it flows and the river basin wherein it lies shall be given.</content><note type="source"><p>Source Note: The provisions of this §295.4 adopted to be effective May 28, 1986, 11 TexReg 2324.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.5"><num value="295.5">§295.5</num><heading>Amount and Purpose of Diversion and Use</heading><content>The total amount of water to be used shall be stated in definite terms, i.e., a definite number of acre-feet annually or, in the case of a seasonal, emergency, or temporary water right application, over the period for which application is made. The purpose or purposes of each use shall be stated in definite terms. If the water is to be used for more than one purpose, the specific amount to be used annually for each purpose shall be clearly set forth. If the application requests authorization to use water for multiple purposes, the application shall expressly state an annual amount of water to be used for the multiple purposes as well as for each purpose of use. If the amount to be consumptively used is less than the amount to be diverted, both the amount to be diverted and the amount to be consumptively used shall be specified.</content><note type="source"><p>Source Note: The provisions of this §295.5 adopted to be effective May 28, 1986, 11 TexReg 2324; amended to be effective February 21, 1999, 24 TexReg 969.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.6"><num value="295.6">§295.6</num><heading>Rate and Method of Diversion</heading><content>If the applicant proposes to divert from a stream or reservoir, the maximum rate of diversion in gallons per minute or cubic feet per second shall be stated. The method to be used shall be described as portable pump, stationary pump, or gravity flow.</content><note type="source"><p>Source Note: The provisions of this §295.6 adopted to be effective May 28, 1986, 11 TexReg 2324.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.7"><num value="295.7">§295.7</num><heading>Location of Diversion Point, Reservoir, and Dam</heading><content>The application shall state the location of point(s) of diversion and, if applicable, the location of dam(s) or off-channel storage reservoir(s). These locations shall also be shown on the application maps with reference to a corner of an original land survey and/or other survey point of record, giving both course and distance. The distance and direction from the nearest county seat or town shall also be stated.</content><note type="source"><p>Source Note: The provisions of this §295.7 adopted to be effective May 28, 1986, 11 TexReg 2324.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.8"><num value="295.8">§295.8</num><heading>Return and Surplus Water</heading><content>The application shall describe the location at which return water or surplus water will be returned to the stream. If practicable, this must also be shown on the application map. In addition, the application shall state with as much accuracy as possible the quantity of return flow expressed in acre-feet per annum.</content><note type="source"><p>Source Note: The provisions of this §295.8 adopted to be effective May 28, 1986, 11 TexReg 2324.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.9"><num value="295.9">§295.9</num><heading>Water Conservation and Drought Contingency Plans</heading><content>An application relating to the appropriation or use of state water must include water conservation and drought contingency plans meeting applicable requirements contained in this section. An application not accompanied by such plans is not administratively complete and shall not be considered by the commission, unless expressly exempted by this section. The water conservation plan must demonstrate that reasonable diligence will be used to avoid waste and achieve water conservation in order that appropriated waters will be beneficially used for the authorized purposes. Conservation means those practices, techniques, and technologies that will reduce the consumption of water, prevent or reduce the loss or waste of water, maintain or improve the efficiency in the use of water, increase the recycling and reuse of water, or prevent the pollution of water so that a water supply is made available for future or alternative uses for the benefit of the public health, safety and welfare, and of the environment.(1) Applications to appropriate or to use water for municipal use, industrial or mining use, or agricultural use, including irrigation use. The water conservation and drought contingency plans submitted with an application to appropriate or to use state water for municipal use, industrial or mining use, or agricultural use must be submitted in accordance with the guidelines set forth in Chapter 288 of this title (relating to Water Conservation Plans, Drought Contingency Plans, Guidelines and Requirements).(2) Applications to appropriate or to use water by wholesale water suppliers. A water conservation plan submitted with an application to appropriate or to use state water by a wholesale water supplier must be submitted in accordance with the guidelines set forth in Chapter 288 of this title.(3) Applications to appropriate or to use water for any other purpose or use. A water conservation plan submitted with an application to appropriate or to use state water for any other purpose or use shall include a water conservation plan providing information where applicable about those practices, techniques, and technologies that will be used to reduce the consumption of water, prevent or reduce the loss or waste of water, maintain or improve the efficiency in the use of water, increase the recycling and reuse of water, or prevent the pollution of water.(4) Applications to amend existing water rights. An application to amend an existing water right for any of the following reasons must be accompanied by water conservation and drought contingency plans in accordance with the applicable provisions of this section:(A) to increase the amount of the appropriation;(B) to extend the term of the appropriation;(C) to change the place of use, unless the request is to expand the amount of acreage to be irrigated adjacent to the existing, authorized irrigated tract without an increase in the appropriation; or(D) to change the purpose or use of the appropriation (a conservation plan to change the purpose or use of an appropriation need only address the proposed change in purpose or use; however, the executive director may require an applicant to submit a water conservation plan which addresses the applicant's entire water uses and/or appropriations).(5) Exemptions to the requirement to submit water conservation plans. Applications to impound water for in-place use only, for emergency use in accordance with §295.91 of this title (relating to Requirements for Application for Emergency Water Use Permit) and for temporary use of water in accordance with §295.61 of this title (relating to Additional Requirements for Applications for Temporary Permits) are exempt from having to submit a water conservation plan pursuant to this section. However, all water right holders must exercise reasonable diligence to avoid waste and achieve water conservation so that the right to use state water is limited to the amount which is being or can be beneficially used for the authorized purposes but not to exceed the amount specifically appropriated.</content><note type="source"><p>Source Note: The provisions of this §295.9 adopted to be effective May 28, 1986, 11 TexReg 2324; amended to be effective May 3, 1993, 18 TexReg 2558; amended to be effective February 21, 1999, 24 TexReg 969; amended to be effective August 15, 2002, 27 TexReg 7149.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.10"><num value="295.10">§295.10</num><heading>Proposed Installation or Reservoir</heading><content>If the applicant does not have the power of condemnation and proposes to inundate or to place any installation upon the land of another, the name(s) and address(es) of such landowner(s) shall be given. A copy of a duly acknowledged written easement, consent, or license from the landowner(s) or of a written lease or other evidence of agreement between the landowner(s) and the applicant shall be filed with the application.</content><note type="source"><p>Source Note: The provisions of this §295.10 adopted to be effective May 28, 1986, 11 TexReg 2324.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.11"><num value="295.11">§295.11</num><heading>Multiple Ownership of Existing Reservoir</heading><content>Except as otherwise provided herein, if an existing reservoir inundates land owned by more than one person, an application for a permit to authorize the dam and reservoir and to use state water impounded in the reservoir shall be joined by all of the landowners. A copy of any operating agreement affecting the reservoir or the distribution of water therefrom shall be submitted with the application. If there is incomplete joinder, the applicant shall submit the name and address of any landowner who does not join the application, and shall file a copy of an easement or a consent, license, lease, or other type of agreement from the landowner(s), as provided in §295.10 of this title (relating to Proposed Installation or Reservoir).</content><note type="source"><p>Source Note: The provisions of this §295.11 adopted to be effective May 28, 1986, 11 TexReg 2324.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.12"><num value="295.12">§295.12</num><heading>Storage in Another's Reservoir</heading><content>In an application for a permit to appropriate state water for storage in another's lawful reservoir and/or to divert and use water therefrom, a copy of a duly acknowledged document evidencing the consent of the reservoir owner shall be submitted. If the reservoir is a project of the Soil Conservation Service, U. S. Department of Agriculture, a copy of a duly acknowledged document evidencing consent from the Soil and Water Conservation District and any others having jurisdiction over the reservoir shall be provided.</content><note type="source"><p>Source Note: The provisions of this §295.12 adopted to be effective May 28, 1986, 11 TexReg 2324.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.13"><num value="295.13">§295.13</num><heading>Interbasin Transfers</heading><content>(a) An applicant seeking to transfer state water from one basin to another basin shall so state in the application. For purposes of this section, a river basin is defined and designated by the Texas Water Development Board by rule pursuant to Texas Water Code (TWC), §16.051. The application content requirements contained in this chapter for a new or amended water right, as applicable, shall apply to all applications for an interbasin transfer unless otherwise provided.(b) In addition to the application requirements for a new or amended water right contained in this chapter, the application must also include the following unless exempted by subsection (c) of this section:(1) the contract price of the water to be transferred;(2) a statement of each general category of proposed use of the water to be transferred and a detailed description of the proposed uses and users under each category;(3) the cost of diverting, conveying, distributing, and supplying the water to, and treating the water for, the proposed users;(4) an analysis of whether and to what extent there is the need for the water in the basin of origin and in the proposed receiving basin based upon the period for which the transfer is requested, but not to exceed 50 years;(5) factors identified in the applicable approved regional water plans which address the following (Regional water management plans must be submitted to the Texas Water Development Board for review and approval not later than September 1, 2000. If applicable approved regional water management plans do not exist at the time the application is submitted, the following information under this paragraph is not required to be submitted.):(A) an analysis of the availability of feasible and practicable alternative supplies in the receiving basin for which the water is needed;(B) the amount and purposes of use in the receiving basin for which the water is needed;(C) the proposed methods and efforts by the receiving basin to avoid waste and implement water conservation and drought contingency measures;(D) the proposed methods and efforts by the receiving basin to put the water proposed for transfer to beneficial use;(E) the projected economic impact that is reasonably expected to occur in each basin as a result of the transfer; and(F) the projected impacts of the proposed transfer that are reasonably expected to occur on existing water rights, instream uses, water quality, aquatic and riparian habitat, and bays and estuaries that must be assessed under TWC, §§11.147, 11.150, and 11.152 and related commission rules contained in §§297.49 - 297.52 of this title (relating to Return and Surplus Waters; Consideration of Water Conservation Plans; Time Limitations for Commencement or Completion of Construction; and Suppliers of Water for Agriculture) in each basin. If the water sought to be transferred is currently authorized to be used under an existing water right, such impacts shall only be considered in relation to that portion of the water right proposed for transfer and shall be based on historical uses of the water right for which amendment is sought;(6) proposed mitigation or compensation, if any, to the basin of origin by the applicant;(7) the continued need to use the water for the purposes authorized under the existing water right if an amendment to an existing water right is being sought; and(8) any other related information the executive director or commission may require to review the application to make recommendation or determine, as applicable, whether it meets all applicable requirements of the TWC or other applicable law.(c) Subsection (b) of this section shall not apply to:(1) a proposed transfer which in combination with any existing transfers totals less than 3,000 acre-feet of water per annum from the same water right;(2) a request for an emergency transfer of water under §297.17 of this title (relating to Emergency Authorization (Texas Water Code, §11.139));(3) a proposed transfer from a basin to its adjoining coastal basin;(4) a proposed transfer from the part of the geographic area of a county or municipality, or the part of the retail service area of a retail public utility as defined by TWC, §13.002, that is within the basin of origin for use in that part of the geographic area of the county or municipality or that contiguous part of the retail service area of the utility, not within the basin of origin; or(5) a proposed transfer of water that is:(A) imported from a source located wholly outside the boundaries of this state, except water that is imported from a source located in the United Mexican States;(B) for use in this state; and(C) transported by using the bed and banks of any flowing natural stream in this state.</content><note type="source"><p>Source Note: The provisions of this §295.13 adopted to be effective May 28, 1986, 11 TexReg 2324; amended to be effective February 21, 1999, 24 TexReg 969; amended to be effective August 15, 2002, 27 TexReg 7149; amended to be effective May 6, 2010, 35 TexReg 3500; amended to be effective August 28, 2014, 39 TexReg 6492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.14"><num value="295.14">§295.14</num><heading>Signature of Applicant</heading><content>The application shall be signed as follows.(1) If the applicant is an individual, the application shall be signed by the applicant or the applicant's duly appointed agent. An agent shall provide written evidence of his or her authority to represent the applicant. If the applicant is an individual doing business under an assumed name, the applicant shall attach to the application an assumed name certificate from the county clerk of the county in which the principal place of business is located.(2) A joint application shall be signed by each applicant or each applicant's duly authorized agent, with written evidence of such agency to be submitted with the application. If land is owned by both husband and wife, each shall sign the application. Joint applicants shall select one among them to act for and represent the others in pursuing the application with the commission, with written evidence of such representation to be submitted with the application.(3) If the application is by a partnership, the application shall be signed by one of the general partners. If the applicant is a partnership doing business under an assumed name, it shall attach to the application an assumed name certificate from the county clerk of the county in which the principal place of business is located.(4) If the applicant is an estate or guardianship, the application shall be signed by the duly appointed guardian or representative of the estate, and a current copy of the letters issued by the court shall be attached to the application.(5) If the applicant is a corporation, public district, county, municipality, or other corporate entity, the application shall be signed by a duly authorized official. Written evidence in the form of bylaws, charters, or resolutions which specify the authority of the official to take such action shall be submitted. A corporation may file a corporate affidavit as evidence of the official's authority to sign.(6) If the applicant is acting as trustee for another, the applicant shall sign as trustee, and in the application shall disclose the nature of the trust agreement and give the name and current address of each trust beneficiary.</content><note type="source"><p>Source Note: The provisions of this §295.14 adopted to be effective May 28, 1986, 11 TexReg 2324.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.15"><num value="295.15">§295.15</num><heading>Sworn Application Required</heading><content>Each applicant shall subscribe and swear to the application before any person entitled to administer oaths, who shall also sign his or her name and affix his or her seal of office to the application.</content><note type="source"><p>Source Note: The provisions of this §295.15 adopted to be effective May 28, 1986, 11 TexReg 2324.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.16"><num value="295.16">§295.16</num><heading>Consistency With State And Regional Water Plans</heading><content>An application shall contain information describing how it addresses a water supply need in a manner that is consistent with the state water plan or the applicable approved regional water plan for any area in which the proposed appropriation is located or, in the alternative, describe conditions that warrant a waiver of this requirement.</content><note type="source"><p>Source Note: The provisions of this §295.16 adopted to be effective February 21, 1999, 24 TexReg 969.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.17"><num value="295.17">§295.17</num><heading>Water-in-Transit in the Rio Grande</heading><content>This chapter only applies to applications for water-in-transit in the Rio Grande to the extent that the rules for water-in-transit applications in the Rio Grande in Chapter 303 of this title (relating to Operation of the Rio Grande) do not govern or do not expressly conflict with this chapter. The applicable rules for water-in-transit in the Rio Grande are in Chapter 303 of this title.</content><note type="source"><p>Source Note: The provisions of this §295.17 adopted to be effective October 26, 2006, 31 TexReg 8712.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.21"><num value="295.21">§295.21</num><heading>Aquifer Storage and Recovery Projects</heading><content>(a) A water right holder or a person who has contracted for the use of water under a contract that does not prohibit the use of the water in an aquifer storage and recovery project may undertake an aquifer storage and recovery project without obtaining any additional authorization under Texas Water Code (TWC), Chapter 11, for the project. A person, as described in this section, undertaking an aquifer storage and recovery project must:(1) obtain any required authorizations under TWC, Chapter 27, Subchapter G, and TWC, Chapter 36, Subchapter N; and(2) comply with the terms of the applicable water right.(b) This section does not preclude the commission from considering an aquifer storage and recovery project, as defined in §297.1 of this title (relating to Definitions), to be a component of a project permitted under TWC, Chapter 11, that is not required to be based on the continuous availability of historic, normal stream flow.</content><note type="source"><p>Source Note: The provisions of this §295.21 adopted to be effective May 19, 2016, 41 TexReg 3508.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.31"><num value="295.31">§295.31</num><heading>Ownership Information Required; Exceptions</heading><content>An applicant, seeking the use of state water for agricultural use on particular tracts of land, shall be required to offer proof to substantiate his or her ownership of the land, except as otherwise provided herein. This section does not apply to an applicant which is a water corporation, water district, river authority, or governmental entity authorized to supply water to others.</content><note type="source"><p>Source Note: The provisions of this §295.31 adopted to be effective May 28, 1986, 11 TexReg 2324; amended to be effective August 15, 2002, 27 TexReg 7149.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.32"><num value="295.32">§295.32</num><heading>Documents and Information To Be Submitted</heading><content>(a) An application to irrigate particular tracts of land shall contain the following information concerning the lands proposed to be irrigated:(1) the original land survey or grant, the abstract number, and the name of the county in which the land is located;(2) an aerial photograph, plat, or map submitted in accordance with §295.123 of this title (relating to Content Requirements of Maps) showing the tract of land within which a specified number of acres will be irrigated;(3) a copy of the deed describing the applicant's land, showing recording information from the county deed records;(4) a legal description of any lands involved in the application;(5) if the application includes agricultural use of any land not owned by applicant, a consent agreement from the landowner, stating that the landowner recognizes that the permit will be owned by applicant and will not become appurtenant to the land. Renewal of a term permit issued under this chapter will require current documentation of consent agreements. This paragraph does not apply to an applicant who is a water corporation, water district, river authority, or governmental entity authorized to supply water to others or applicants diverting state water from the Rio Grande downstream of Amistad Reservoir.(b) Applications requesting diversions of state water from the Rio Grande below Amistad Reservoir to irrigate land not owned by the applicant must demonstrate that the tract requested can be serviced from the authorized diversion points and with applicant's irrigation facilities.(c) Applications requesting water diverted from the Rio Grande below Amistad Reservoir to irrigate land not owned by the applicant must provide the names and addresses of all owners of land to be included in the application. Notice of the request will be mailed by certified mail, at applicant's expense, to all affected landowners. Such landowners will be given two weeks within which to protest. If no protest is received, further notice will not be required.</content><note type="source"><p>Source Note: The provisions of this §295.32 adopted to be effective May 31, 1986, 11 TexReg 2324; amended to be effective August 15, 2002, 27 TexReg 7149.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.41"><num value="295.41">§295.41</num><heading>Plans To Be Prepared by Registered Engineer</heading><content>Except where written approval of the executive director has been obtained, application plans for dam and reservoir projects, and plats and reports submitted in connection therewith, shall be prepared by a registered professional engineer as defined in the Texas Engineering Practice Act (Texas Civil Statutes, Article 3271a). Such plans, plats, and reports shall bear a certificate, signed by the engineer and to which the engineer's seal shall be affixed, stating that the application plans, plats, and/or reports were prepared by the engineer or under the engineer's direct supervision. The certificate and seal shall be affixed to each sheet of plans and plats, or the first sheet shall contain certification that a specified number of sheets following were prepared by the engineer or under the engineer's direct supervision. Affixing the certificate and seal once within a report shall be sufficient. The following certificate form should be used.</content><note type="source"><p>Source Note: The provisions of this §295.41 adopted to be effective May 28, 1986, 11 TexReg 2325.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.42"><num value="295.42">§295.42</num><heading>Additional Notice Requirement</heading><content>(a) The applicant for a permit to construct a storage reservoir shall give notice by certified mail of the application to each member of the governing body of each county and municipality in which the reservoir, or any part of the reservoir, will be located.(b) For purposes of this section, a reservoir is located within a municipality when any part of the reservoir, when full, will be within the city limits of the municipality.(c) An application for a permit to construct a storage reservoir must contain a copy of the notice that was mailed to each member of the governing bodies, as well as copies of the certified mailing cards.</content><note type="source"><p>Source Note: The provisions of this §295.42 adopted to be effective August 31, 2006, 31 TexReg 6751.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.51"><num value="295.51">§295.51</num><heading>Application for Texas Water Code, §11.143, Permit</heading><content>(a) An applicant for a permit under Texas Water Code, §11.143, shall submit to the executive director a sworn application on a form furnished by or acceptable to the executive director and containing the following information:(1) the name, post office address, telephone number, and social security or federal identification number of the applicant;(2) the nature and purpose of the proposed use, and the amount of water to be used annually for each purpose;(3) the major watershed and the tributary (named or unnamed) on which the dam or reservoir is located;(4) the county in which the dam or reservoir is located;(5) the approximate distance and direction from the county seat of the county to the location of the dam or reservoir;(6) the survey or the portion of the survey in which the dam or reservoir is located, and, to the best of applicant's knowledge and belief, the distance and direction of the midpoint of the dam or reservoir from a corner of the survey and/or other survey point of record;(7) the approximate surface area, to the nearest acre, of the reservoir when it is full, and the average depth in feet when it is full;(8) the approximate size in acres or square miles of the drainage area above the dam or reservoir; and(9) if the permit is sought for irrigation under an agricultural use:(A) the total number of irrigable acres in the area;(B) the number of acres to be irrigated within the area in any one year;(C) the distance and direction of the land to be irrigated from the midpoint of the dam or reservoir; and(D) a copy of the deed describing the applicant's tract, with the recording information from the county deed records.(b) An applicant for a Texas Water Code, §11.143, permit shall furnish an aerial photograph of the site. If no aerial photograph is available, the applicant shall submit a map upon which are outlined any areas to be irrigated and upon which the dam and reservoir are located by distance and direction from a corner of an original survey and/or other survey point of record.</content><note type="source"><p>Source Note: The provisions of this §295.51 adopted to be effective May 28, 1986, 11 TexReg 2325; amended to be effective August 15, 2002, 27 TexReg 7149.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.61"><num value="295.61">§295.61</num><heading>Applications</heading><content>In addition to the general requirements for permit applications, an applicant for a temporary permit shall specify the period of time that water is proposed to be diverted. The application shall be accompanied by a vicinity map at least 81/2 by 11 inches with sufficient information to enable the executive director to locate on the ground the diversion site and return water discharge points.</content><note type="source"><p>Source Note: The provisions of this §295.61 adopted to be effective May 28, 1986, 11 TexReg 2325.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.62"><num value="295.62">§295.62</num><heading>Extension of Time for Temporary Permits</heading><content>A holder of a temporary permit who is seeking an extension of time thereof shall submit a letter to the executive director requesting an extension for a specified period of time. The letter shall set forth reasons why the water was not diverted and used within the time allowed. The applicant shall also submit water use report(s) showing the amount of water used under the terms of the permit.</content><note type="source"><p>Source Note: The provisions of this §295.62 adopted to be effective May 28, 1986, 11 TexReg 2325.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.71"><num value="295.71">§295.71</num><heading>Applications To Amend a Permit</heading><content>An applicant for an amendment to a water use permit or certificate of adjudication shall file an application prepared in the manner of an original application for a permit. However, the title of the application should be altered to reflect the fact that it is a request for an amendment. A proposed amendment, including an amendment on the motion of the executive director, shall be recorded in the same manner as a permit application. The holder of a permit, certified filing, or certificate of adjudication issued before September 1, 2001, for industrial use or irrigation use where the actual use of the water is now classified as agricultural use may continue to use or supply water in accordance with the previously issued permit, certified filing, or certificate of adjudication without obtaining an amendment.</content><note type="source"><p>Source Note: The provisions of this §295.71 adopted to be effective May 28, 1986, 11 TexReg 2325; amended to be effective August 15, 2002, 27 TexReg 7149.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.72"><num value="295.72">§295.72</num><heading>Applications for Extensions of Time</heading><content>(a) If construction work cannot be commenced or completed within the time periods established by a permit, the permittee may, before the expiration of the time period to commence or complete construction, apply for an extension of time in order to preserve the permit. Applications shall be in writing, shall be received by the executive director before the expiration date, and shall set forth the reasons why construction work could not be commenced or completed within the time required. Estimated time of commencement or completion also shall be set out. The application must also contain reasons why the permit should not be forfeited if the commission finds that reasonable diligence has not been demonstrated.(b) The commission may grant an extension of the time to commence or complete construction for a reasonable and necessary period if the appropriator demonstrates reasonable diligence towards such commencement or completion and reasonable cause exists for failure to meet the authorized time limitations. The determination of whether an extension should be granted or the right is forfeited is a question of fact to be determined on a case-by-case basis. Reasonable diligence does not require unusual or extraordinary effort, but it does require a steady application of effort that is usual, ordinary, and reasonable under the circumstances and evidences prosecution of such efforts in good faith. Reasonable causes for delay include, but are not limited to, the operation of legal proceedings or other causes which were not within the reasonable control of the permittee and which were reasonably unforeseeable at the time the appropriation or the last extension, whichever is applicable, was granted by the commission. Delay in commencement or completion of construction because of financial hardship shall not, by itself, constitute sufficient cause for the granting of an extension.(c) Consideration by the commission of an application to extend the time for commencement or completion of construction shall include whether the appropriation shall be forfeited as provided in §297.74 of this title (relating to Forfeiture and Revocation of Water Right) for failure by the applicant to demonstrate reasonable diligence and justification for delay. If the application for extensions is denied, the appropriation may also be forfeited as ordered by the commission.</content><note type="source"><p>Source Note: The provisions of this §295.72 adopted to be effective May 28, 1986, 11 TexReg 2325; amended to be effective January 30, 1992, 17 TexReg 407; amended to be effective August 15, 2002, 27 TexReg 7149.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.73"><num value="295.73">§295.73</num><heading>Texas Water Code, §11.122(b-1) Amendment Applications</heading><content>(a) Prior to being declared administratively complete, applications submitted under this section must demonstrate the amount of desalinated seawater the water right holder has begun using. If the water right holder can demonstrate with certainty a specified amount of desalinated seawater the water right holder will begin using in the future, the commission may declare the application administratively complete, but condition any amendment granted under this section upon the actual use of the specified amount of desalination seawater.(b) Technical review for applications under this section will be completed prior to all other administratively complete applications in the basin that do not meet the requirements of this section.(c) The commission may include special conditions in the permit, including, but not limited to a re-opener provision, to mitigate adverse impacts on the availability of water for applications that were administratively complete prior to an application that triggered the expedited technical review under subsection (b) of this section.</content><note type="source"><p>Source Note: The provisions of this §295.73 adopted to be effective August 16, 2018, 43 TexReg 5222.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.81"><num value="295.81">§295.81</num><heading>Application</heading><content>A person seeking authorization to use state water for domestic or livestock use from a reservoir constructed by the federal government for which no local sponsor has been designated nor permit issued or a reservoir permitted for storage solely for the purpose of optimum development of the project shall submit a letter setting forth the location of the diversion point, the diversion rate, the amount of water to be diverted, and a statement that the water will be used for domestic and livestock use. The executive director may require the filing of additional information.</content><note type="source"><p>Source Note: The provisions of this §295.81 adopted to be effective May 28, 1986, 11 TexReg 2325.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.85"><num value="295.85">§295.85</num><heading>Application</heading><content>Any political subdivision may apply to the commission for designation as a cooperating local sponsor of a proposed Texas Water Development Board, United States Army Corps of Engineers, or Bureau of Reclamation of the United States Department of Interior water development project. More than one cooperating local sponsor may be designated by the commission for each project, but no application shall apply to more than one project. The commission may postpone consideration of the application until after the Texas Water Development Board determines whether the project is feasible, as required by the Texas Water Code, §12.051.</content><note type="source"><p>Source Note: The provisions of this §295.85 adopted to be effective December 16, 1987, 12 TexReg 4531.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.91"><num value="295.91">§295.91</num><heading>Application</heading><content>A person requesting an emergency authorization under Texas Water Code, §11.139 and commission rules contained in §297.17 of this title (relating to Emergency Authorization (Texas Water Code, §11.139)) shall submit to the commission a sworn application containing the following information:(1) a description of the condition of emergency justifying the granting of an emergency authorization, including a statement of the facts which support the finding that such conditions present an imminent threat to the public health and safety which override the necessity to comply with established statutory procedures and there are no feasible practicable alternatives to the emergency authorization;(2) the proposed location of the diversion point, diversion rate, the amount of water to be diverted, the purpose or purposes of use, and an estimate of the dates on which the proposed authorization should begin and end;(3) steps made by the applicant to develop and implement water conservation and drought contingency plans, to purchase the needed water including whether the water is available to the applicant to meet the emergency need at a price affordable to the applicant, or to otherwise acquire the needed water other than through an emergency authorization;(4) for a proposed transfer, a statement of consistency with the applicable approved regional water plan, if available; and(5) any other statements or information required by the commission or executive director necessary to review and take action on the application.</content><note type="source"><p>Source Note: The provisions of this §295.91 adopted to be effective May 28, 1986, 11 TexReg 2325; amended to be effective February 21, 1999, 24 TexReg 969.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.101"><num value="295.101">§295.101</num><heading>Documents To Be Filed</heading><content>(a) Application forms are available upon request from the executive director, but use of the forms is not required if the necessary information is supplied.(b) A water supply contract to be submitted to the executive director in accordance with §297.101 of this title (relating to General; Exceptions) shall be accompanied by a vicinity maps showing the diversion point and place of use, and the contractual terms shall include the following:(1) the cost of water to the purchaser, expressed as a cost per unit of measure;(2) the effective date and termination date of the contract;(3) the average quantity of water being furnished on an annual basis or, if the contract is for less than one year, the total quantity being furnished;(4) the location of the purchaser's diversion point with reference to a corner of an original land survey and/or other survey point, giving both course and distance; and(5) a statement that the contract's effectiveness is dependent upon the supplier's and/or the purchaser's compliance with this section and Chapter 297, Subchapter J of this title (relating to Water Supply Contracts and Amendments).(c) If required to file an application for a contractual amendment in accordance with §297.102 of this title (relating to When Application Required), the supplier shall also submit a vicinity map and a copy of the related contract which conform to the requirements of subsection (b) of this section.(d) If the holder of a contractual permit or amendment wishes to relinquish the contractual permit or amendment and file the contract under these sections, the holder may do so by:(1) submission of a sworn statement to the executive director which states the contractual permit holder's intent to relinquish the contractual permit and to thereafter file the contract in accordance with these sections; and(2) submission of a water supply contract which is in compliance with subsection (b) of this section, and §297.103 of this title (relating to Special Requirements for Downstream Sales of Water from a Storage Reservoir). Relinquishment of a contractual permit or amendment is effective upon receipt of a properly executed statement by the contractual permit holder and the filing by the executive director of the substituted water supply contract.</content><note type="source"><p>Source Note: The provisions of this §295.101 adopted to be effective May 28, 1986, 11 TexReg 2325.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.111"><num value="295.111">§295.111</num><heading>Authorization to Convey Stored Water In Bed and Banks</heading><content>(a) Any seller or purchaser of conserved water or water stored in a reservoir desiring to use the bed and banks of any natural watercourse to release the water from storage and convey it downstream for subsequent use under a water supply contract pursuant to Texas Water Code, §11.042(a) shall file a copy of the purchase contract with the executive director and a written statement of the intended transit of the water setting forth the following:(1) the name of the applicant and the place and purpose of use;(2) the name of the watercourse, the bed and banks of which are to be used for the transportation of the water;(3) the name of the owner of any reservoir located on the watercourse by which the waters are to be conveyed;(4) the origin and the terminus of the proposed transported water;(5) the time of commencement and termination of the transit;(6) the number of acre-feet of water to be transported;(7) the approximate flow at the point of origin in cubic feet per second of time;(8) The number of the permit, certified filing, or certificate of adjudication which authorizes the storage and the use of water proposed to be transported; and(9) The manner in which the water being conveyed will be measured to ensure that only the water being released is being diverted at the point of delivery, less the amount of water that will be lost to transportation, evaporation, seepage, channel or other associated carriage losses from the point of release to the point of delivery. The method and calculation of carriage losses shall be subject to the review and approval of the executive director.(b) An exception to the requirements of subsection (a) of this section may be granted by the commission if an emergency exists and time does not permit following the procedures herein outlined. Further, the requirements of this subsection are not applicable if water is being released from upstream storage under the order of the commission.(c) Nothing in this section shall be construed to affect an existing project for which all required water rights and reuse authorizations have been granted by the commission prior to September 1, 1997.</content><note type="source"><p>Source Note: The provisions of this §295.111 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective February 21, 1999, 24 TexReg 969.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.112"><num value="295.112">§295.112</num><heading>Application to Convey Groundwater-Based Effluent in Bed and Banks</heading><content>(a) The purpose of this section is to provide the application content requirements for a bed and banks authorization under Texas Water Code §11.042(b).(b) A person who has discharged or intends to discharge groundwater-based effluent into a stream or watercourse and wishes to divert and use the discharged water shall submit an application with the commission containing the following information:(1) the name, mailing address, and telephone number of the applicant;(2) the name of the stream and the locations of the point of the existing or proposed discharge and diversion as identified on a USGS 7.5 minute topographical map(s);(3) the source, amount, and rates of the existing or proposed discharge and diversion;(4) a description of the water quality of the water discharged or proposed to be discharged and the permit number and name of any related discharge permit;(5) the date of initial discharge of the groundwater into the watercourse or stream, if applicable, and any related records of discharge periods, points, amounts and rates;(6) the estimated amount of water that will be lost to transportation, evaporation, seepage, channel or other associated carriage losses from the point of discharge to the point of diversion;(7) an assessment of the adequacy of the quantity and quality of flows remaining after the proposed diversion to meet instream uses and bay and estuary freshwater inflow needs; and(8) any other information the executive director may need to complete an analysis of the application.(c) Nothing in this section shall be construed to affect an existing project for which all required water rights and reuse authorizations have been granted by the commission prior to September 1, 1997.(d) The method and calculation of carriage losses under this section shall be subject to the review and approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §295.112 adopted to be effective February 21, 1999, 24 TexReg 969.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.113"><num value="295.113">§295.113</num><heading>Application to Convey Water In Bed and Banks</heading><content>(a) The purpose of this section is to provide the application content requirements for a bed and banks authorization under Texas Water Code §11.042(c).(b) A person wishing to place water into a stream or watercourse, convey the water in the watercourse or stream, and subsequently divert such water shall file an application with the commission containing the following information:(1) the name, mailing address, and telephone number of the applicant;(2) the name of the stream and the locations of the point of discharge and diversion as identified on a USGS 7.5 minute topographical map(s);(3) the source, amount, and rates of discharge and diversion;(4) a description of the water quality of the water discharged and, if applicable, the permit number and name of any related discharge permit;(5) if the water to be placed into the stream is from an existing, authorized interwatershed or interbasin transfer, a certified copy of the related water right;(6) if the water placed into the stream is from a proposed interwatershed or interbasin transfer, the information required by this subsection shall be provided in the application for the interwatershed or interbasin transfer and the bed and banks authorization shall be combined with the authorization for the interbasin transfer;(7) the estimated amount of water that will be lost to transportation, evaporation, seepage, channel or other associated carriage losses from the point of discharge to the point of diversion;(8) an assessment of the adequacy of the quantity and quality of flows remaining after the proposed diversion to meet instream uses and bay and estuary freshwater inflow needs; and(9) any other information the executive director may need to complete an analysis of the application.(c) An application under this section may be combined with an application for a wastewater discharge for purposes of a consolidated permit proceeding.(d) Nothing in this section shall be construed to affect an existing project for which all required water rights and reuse authorizations have been granted by the commission prior to September 1, 1997.(e) The method and calculation of carriage losses under this section is subject to the review and approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §295.113 adopted to be effective February 21, 1999, 24 TexReg 969.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.114"><num value="295.114">§295.114</num><heading>Application to Convey Imported Water in Bed and Banks</heading><content>(a) The purpose of this section is to provide the application content requirements for a bed and banks authorization under Texas Water Code, §11.042(a-1).(b) A person wishing to place water imported into the state from a source located wholly outside the state into a stream or watercourse, convey the imported water in the watercourse or stream, and subsequently divert such water shall file an application with the commission containing the following information:(1) the name, mailing address, and telephone number of the applicant;(2) the name of the stream and the locations of the points of discharge and diversion as identified on a United States Geological Survey 7.5 minute topographical map(s);(3) the source, amount, and rates of discharge and diversion;(4) a description of the water quality of the water discharged and, if applicable, the permit number and name of any related discharge permit;(5) a copy of the legal authorization for the imported water from the source state;(6) the estimated amount of water that will be lost to transportation, evaporation, seepage, channel, or other associated carriage losses from the point of discharge to the point of diversion; and(7) an accounting plan demonstrating that no state water will be diverted under this rule.(c) Nothing in this section shall be construed to affect an existing project for which all required water rights and reuse authorizations have been granted by the commission prior to September 1, 1997.(d) The method and calculation of carriage losses under this section is subject to the review and approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §295.114 adopted to be effective May 6, 2010, 35 TexReg 3500.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.121"><num value="295.121">§295.121</num><heading>Content Requirements of Maps</heading><content>Applications must include maps or plats in the form and containing the information specified in the relevant water right form and instructions for the particular authorization sought.</content><note type="source"><p>Source Note: The provisions of this §295.121 adopted to be effective August 16, 2018, 43 TexReg 5222.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scA/s295.122"><num value="295.122">§295.122</num><heading>Requirements for Dams and Reservoirs</heading><content>Maps, plats, or drawings submitted with application plans for dam and reservoir projects must include the information described in §299.3 of this title (relating to General).</content><note type="source"><p>Source Note: The provisions of this §295.122 adopted to be effective August 16, 2018, 43 TexReg 5222.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c295/scB"><num value="B">SUBCHAPTER B</num><heading>WATER USE PERMIT FEES</heading><section identifier="/us/state/tx/tac/t30/p1/c295/scB/s295.131"><num value="295.131">§295.131</num><heading>Fees Required</heading><content>Statutory fees must accompany an application or petition in order for it to be considered by the commission. Employees of the commission are expressly prohibited from processing any application or petition unless the proper fees are tendered. The executive director shall charge and collect for the benefit of the state the fees hereinafter provided, and it shall be his duty to make a record thereof at the time same becomes due and to render an account to the party charged therewith. Each fee is a separate charge and is in addition to other fees, unless provided otherwise.</content><note type="source"><p>Source Note: The provisions of this §295.131 adopted to be effective May 28, 1986, 11 TexReg 2326.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scB/s295.132"><num value="295.132">§295.132</num><heading>Filing, Recording, and Notice Fees</heading><content>(a) The following fees shall be submitted with any application for a water use permit, any application for a water right amendment, or any application for an extension of time to commence or complete construction.(1) Application filing fees are established as follows.(A) Fees for a water use permit or an application for extension of time to begin or complete construction shall be based upon the total amount of water requested to be appropriated for impoundment and diversion as follows:(i) less than 100 acre-feet--$100;(ii) 100-5,000 acre-feet--$250;(iii) 5,001-10,000 acre-feet--$500;(iv) 10,001-250,000 acre-feet--$1,000; and(v) greater than 250,000 acre-feet--$2,000.(B) Fees for a temporary permit shall be based upon the total amount of water requested for impoundment and diversion as follows:(i) 10 acre-feet or less--$100; and(ii) greater than 10 acre-feet--$250.(C) Fees to amend a water right are $100 per numbered water right requested to be amended, including combination amendments.(2) Recording fees are $1.25 per page of the application.(3) Notice fee. The cost of mailing notice to persons in the affected river basin varies. The applicant shall pay the total cost of mailing notice and the executive director will advise the applicant of the number of persons to whom notice is mailed and the total mailing cost.(b) The cost of any required publication shall be paid by the applicant directly to the newspaper involved.(c) The following are examples of applications or petitions subject to the filing and recording fee:(1) application for a permit;(2) application to amend a permit, certified filing, or certificate of adjudication;(3) application to alter, enlarge, extend, or otherwise change any permitted reservoir, dam, main canal, or diversion work;(4) application for extension of time.(5) application for local sponsor designation.</content><note type="source"><p>Source Note: The provisions of this §295.132 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective December 16, 1987, 12 TexReg 4531; amended to be effective January 7, 1994, 18 TexReg 9935.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scB/s295.133"><num value="295.133">§295.133</num><heading>One-Time Use Fees</heading><content>(a) In addition to the filing, recording, and notice fees stated in §295.132 of this title (relating to Filing, Notice, and Recording Fees), the following fees shall be submitted at the time an application for an appropriation is made:(1) for the use of state water for agriculture, a fee of $.50 per acre each year;(2) for the impoundment of state water, except under the Texas Water Code, §11.142 and §11.1431, a fee of $.50 per acre-foot of storage; however, if the applicant seeks to impound water in an on-channel reservoir for in-place recreational purposes, the fee is $1.00 per acre-foot of storage (storage is based on the total holding capacity of the reservoir at normal maximum operating level);(3) for the use of state water for any temporary purpose, a fee of $1.00 per acre-foot or fraction thereof;(4) for other uses of state water not specifically named in this section, a fee of $1.00 per acre-foot to be diverted annually. However, no political subdivision may be required to pay fees to use water to recharge underground freshwater-bearing sands and aquifers or for the abatement of natural pollution. This fee is waived for applications for instream use water rights deposited into the Texas Water Trust.(b) If the total fee for a permit exceeds $1,000, the applicant shall pay at least one-half of the use fee when the application is filed, and one-half within 180 days after notice is mailed to the applicant that the permit is granted. If the applicant does not pay all of the amount owed before beginning to use state water under the permit, the permit is annulled and reverts to the status of a pending, filed application requiring notice, the payment of notice fees, and the balance of the use fees.(c) A fee imposed under subsection (a)(4) of this section for the use of saline tidal water for industrial processes shall be one dollar ($1.00) per acre-foot of water diverted for the industrial process, not to exceed a total fee of five thousand dollars ($5,000).(d) For an application requesting multiple uses of the same amount of water, the fee shall be based on the use with the highest fee.</content><note type="source"><p>Source Note: The provisions of this §295.133 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective December 16, 1987, 12 TexReg 4531; amended to be effective January 7, 1994, 18 TexReg 9935; amended to be effective February 21, 1999, 24 TexReg 969; amended to be effective August 15, 2002, 27 TexReg 7149.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scB/s295.134"><num value="295.134">§295.134</num><heading>Maximum Fees</heading><content>A fee under §295.133 of this title (relating to One-Time Use Fees) for one use of state water under a permit from the commission shall not exceed $50,000. The fee for each additional use of water under a permit for which the maximum fee is paid shall not exceed $10,000. Temporary water permit use fees under §295.133 of this title shall not exceed $500. The fee for any application for extension of time to commence or complete construction under §295.133 of this title shall not exceed $1,000. The fee under §295.133 of this title for the use of saline tidal water for industrial processes shall not exceed five thousand dollars ($5,000).</content><note type="source"><p>Source Note: The provisions of this §295.134 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective January 7, 1994, 18 TexReg 9935; amended to be effective February 21, 1999, 24 TexReg 969.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scB/s295.135"><num value="295.135">§295.135</num><heading>Inquiries as to Fees</heading><content>Any inquiries as to fees should be made in advance to the executive director. The applicant is charged with the duty of tendering correct fees according to law. In case of disagreement between the applicant and the executive director over the proper amount of the fees required, the application will be filed under protest in accordance with the Texas Tax Code, §§112.051-112.060, and the fees paid by the applicant will be placed in suspense to await a decision by the attorney general.</content><note type="source"><p>Source Note: The provisions of this §295.135 adopted to be effective May 28, 1986, 11 TexReg 2326.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scB/s295.136"><num value="295.136">§295.136</num><heading>Return of Fees</heading><content>Other than the filing and recording fees required by statute, all fees paid pertaining to an application for a water use permit which have not been expended in the processing of the application will be placed in suspense until action is taken by the commission upon the application. If the permit is not granted, unexpended fees will be returned to the applicant. If the application is granted in part, excess use fees will be returned to the applicant. No fees will be returned to any applicant who has failed to notify the executive director of the applicant's social security or federal identification number.</content><note type="source"><p>Source Note: The provisions of this §295.136 adopted to be effective May 28, 1986, 11 TexReg 2326.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scB/s295.137"><num value="295.137">§295.137</num><heading>Diversion From Unsponsored or Storage-Limited Projects</heading><content>No use fees shall be required of an applicant for authorization for the use of state water for domestic and livestock use from either a reservoir constructed by the federal government for which no permit has been issued or a reservoir permitted for storage solely for the purpose of optimum development of the project.</content><note type="source"><p>Source Note: The provisions of this §295.137 adopted to be effective May 28, 1986, 11 TexReg 2326.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scB/s295.138"><num value="295.138">§295.138</num><heading>Extension of Time To Commence or Complete Construction</heading><content>When notice of an application to extend time for commencement or completion of construction is required, the applicant shall pay fees as follows:(1) filing and recording fees as stated in these sections;(2) any required mailing fees; and(3) extension fee, to be equivalent to one-time use fees, not to exceed $1,000, established under §295.134 of this title (relating to Maximum Fees).</content><note type="source"><p>Source Note: The provisions of this §295.138 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective January 7, 1994, 18 TexReg 9935.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scB/s295.139"><num value="295.139">§295.139</num><heading>Miscellaneous Fees</heading><content>(a) The fee for mailing copies of commission records shall be established by the State Purchasing and General Services Commission in accordance with Texas Civil Statutes, Article 6252-17a, §9.(b) The fee for each certificate with seal shall be $1.00.(c) The fee for examination or search of commission records when the state has no interest shall be $5.00 for each half hour or fraction of a half hour spent in examination or search of the records.(d) The ownership recording fee for changing the commission ownership records of water rights shall be $100 for each numbered water right.</content><note type="source"><p>Source Note: The provisions of this §295.139 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective January 7, 1994, 18 TexReg 9935.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scB/s295.140"><num value="295.140">§295.140</num><heading>Local Sponsor Designation Fees</heading><content>(a) Filing and recording fees shall be submitted with each application for local sponsor designation as required by §295.132 (a) (1) and (2) of this title (relating to Filing, Recording, and Notice Fees).(b) The cost of any required publication of notice shall be paid by the applicant directly to the newspaper involved.</content><note type="source"><p>Source Note: The provisions of this §295.140 adopted to be effective December 16, 1987, 12 TexReg 4531.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c295/scC"><num value="C">SUBCHAPTER C</num><heading>NOTICE REQUIREMENTS FOR WATER RIGHT APPLICATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c295/scC/s295.151"><num value="295.151">§295.151</num><heading>Notice of Application and Commission Action</heading><content>(a) At the time that the technical review of an application for a permit to use state water has been completed and the technical memoranda have been filed by the executive director with the chief clerk of the commission, the commission shall give notice by mail to those persons specified in §295.153 of this title (relating to Notice By Mail). At such time, the chief clerk shall furnish a copy of the notice to the applicant, and the applicant shall cause such notice to be published, pursuant to §295.152 of this title (relating to Notice By Publication).(b) The notice must:(1) state the name and address of the applicant;(2) state the date on which the application was received by the commission;(3) state the date the application was filed by the executive director with the chief clerk as required by §281.17(a) or (b) of this title (relating to Notice of Receipt of Application and Declaration of Administrative Completeness);(4) state that the executive director has determined that the technical review of the application is complete;(5) state the application number;(6) state the type of permit the applicant is seeking;(7) state the purpose and extent of the proposed appropriation of water;(8) identify the source of supply and the place where the water is to be stored or taken or diverted from the source of supply;(9) identify any proposed alternative source of water, other than state water, identified by the application;(10) state the executive director's recommendation regarding the application;(11) state that an affected person may request a hearing as set out in Chapter 55, Subchapter G of this title (relating to Requests for Contested Case Hearing and Public Comment on Certain Applications);(12) give a general description of the location and area of any land to be irrigated;(13) include the name and address of the agency, and the telephone number of an agency contact from whom interested persons may obtain future information; and(14) give any additional information the commission considers necessary.</content><note type="source"><p>Source Note: The provisions of this §295.151 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective December 31, 2009, 34 TexReg 9454; amended to be effective August 16, 2018, 43 TexReg 5222.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scC/s295.152"><num value="295.152">§295.152</num><heading>Notice By Publication</heading><content>(a) For an application for a permit pursuant to Texas Water Code (TWC), §11.121, or for an amendment to a TWC, §11.121, permit, a certified filing, or a certificate of adjudication pursuant to TWC, §11.122, and §295.158(b) of this title (relating to Notice of Amendments to Water Rights), the applicant shall cause the notice issued by the chief clerk to be published in a newspaper of general circulation within the section of the state where the source of water is located.(b) For an application for a permit pursuant to TWC, §11.143, or for an amendment pursuant to TWC, §11.122, to a TWC, §11.143, permit, or a certificate of adjudication which authorizes diversions from a reservoir which is exempted under TWC, §11.142, in which the applicant proposes to use groundwater from a well located within a groundwater conservation district as an alternative source of water, the applicant shall cause the notice issued by the chief clerk to be published in a newspaper of general circulation within each county in which the groundwater conservation district is located.(c) The date of publication shall be on or before the date of publication directed by the chief clerk of the commission. In any event, the date of publication shall be not less than 30 days before the date set for commission consideration of the application.</content><note type="source"><p>Source Note: The provisions of this §295.152 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective August 16, 2018, 43 TexReg 5222.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scC/s295.153"><num value="295.153">§295.153</num><heading>Notice By Mail</heading><content>(a) If notice by mail is required, the commission shall mail the notice by first-class mail, postage prepaid, to persons listed in this section for each type of application. The commission shall mail required notice not less than 30 days before the date set for commission consideration of the application.(b) For an application for a permit pursuant to Texas Water Code (TWC), §11.121, or for an amendment to a TWC, §11.121, permit, a certified filing, or a certificate of adjudication pursuant to TWC, §11.122, and §295.158(b) of this title (relating to Notice of Amendments to Water Rights), notice shall be mailed to the following:(1) each claimant or appropriator of water from the source of water supply, the record of whose claim or appropriation has been filed with the commission or its predecessor agencies;(2) all navigation districts within the river basin concerned;(3) each groundwater conservation district with jurisdiction over the proposed groundwater production, if the applicant proposes to use groundwater from a well located within a groundwater conservation district as an alternative source of water; and(4) other persons who, in the judgment of the commission, might be affected.(c) For an application for a permit pursuant to TWC, §11.143, or for an amendment pursuant to TWC, §11.122, to a TWC, §11.143, permit, or a certificate of adjudication which authorizes diversions from a reservoir which is exempted under TWC, §11.142, and pursuant to §295.158(b) of this title, notice shall be mailed to the following:(1) each person whose claim or appropriation has been filed with the commission or its predecessor agencies and whose diversion point is downstream from the location of the dam or reservoir as described in the application;(2) each groundwater conservation district with jurisdiction over the proposed groundwater production, if the applicant proposes to use groundwater from a well located within a groundwater conservation district as an alternative source of water; and(3) other persons who, in the judgment of the commission, might be affected.(d) For an application to amend a certified filing authorizing diversions from a reservoir which is exempted under TWC, §11.142, which, if granted, will cause a change in the reservoir so that it would no longer be exempt under TWC, §11.142, notice shall be mailed to the persons listed in subsection (b) of this section.(e) For an application to authorize the use of state water for domestic and livestock use from a reservoir constructed by the federal government for which no local sponsor has been designated nor permit issued, the commission shall issue such notice as it deems appropriate.</content><note type="source"><p>Source Note: The provisions of this §295.153 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective August 16, 2018, 43 TexReg 5222.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scC/s295.154"><num value="295.154">§295.154</num><heading>Notice for Temporary Water Use Permit</heading><content>(a) For an application for a temporary water use permit for which a hearing is required, notice of the hearing shall be sent by first-class mail to each complainant under §295.181 of this title (relating to Provisional Disposition of Application for Temporary Permit) and to diverters of record with the commission who are located below the applicant's proposed point of diversion and who would, in the judgment of the commission, be affected by the applicant's withdrawals. The notice shall be mailed not less than 15 days (including Saturdays, Sundays, and holidays) prior to the date set for hearing.(b) Notice of a hearing on an application for a temporary water use permit need not be published in any newspaper unless so ordered by the commission.(c) Notice of a hearing on an application for a temporary water use permit shall contain a general statement regarding the proposed quantities, use, and period of use of the requested water, and a statement of the date, time, and place of the hearing.(d) No mailed notice is required in connection with an application for an extension of time for a temporary permit.</content><note type="source"><p>Source Note: The provisions of this §295.154 adopted to be effective May 28, 1986, 11 TexReg 2326.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scC/s295.155"><num value="295.155">§295.155</num><heading>Notice for Interbasin Transfers</heading><content>(a) The notice requirements of this subchapter for an application for a new or amended water right, as applicable, shall apply to an application for an interbasin transfer except as otherwise provided by this section. In addition, notice shall be given to users of record in the receiving basin who are located below the point of introduction except for interbasin transfers described under subsection (d)(2) - (5) of this section. For purposes of this section, a river basin is defined and designated by the Texas Water Development Board by rule pursuant to Texas Water Code, §16.051. An increase in the amount of water being transferred to the receiving basin under an existing water right constitutes a new interbasin basin transfer for purposes of this section.(b) In addition to the notice requirements provided by subsection (a) of this section, notice of an application for an interbasin transfer shall also include the following unless exempted by subsection (d) of this section:(1) notice of the application shall be mailed to:(A) all holders of water rights located in whole or in part in the basin of origin if not already provided under subsection (a) of this section;(B) each county judge of a county located in whole or in part in the basin of origin;(C) each mayor of a city with a population of 1,000 or more based upon the most recent estimate of the U.S. Census Bureau located in whole or in part in the basin of origin;(D) all groundwater conservation districts located in whole or in part in the basin of origin;(E) each state legislator in both basins; and(F) the presiding officer of each affected regional water planning group in both basins;(2) the applicant shall cause notice of the application to be published in two different weeks within a 30-day period in one or more newspapers having general circulation in each county located in whole or in part in the basin of origin and the receiving basin. The published notice may not be smaller than 96.8 square centimeters or 15 square inches with the shortest dimension at least 7.6 centimeters or three inches. The notice of application and public meetings shall be combined in the mailed and published notices; and(3) the notice of the application must state how a person may obtain from the applicant, without cost, information relating to the contract price of the water to be transferred; a statement of each general category of proposed use of the water to be transferred, and a detailed description of the proposed uses and users under each category; the cost of diverting, conveying, distributing, and supplying the water to, and treating the water for, the proposed users; and the projected effect on user rates and fees for each class of ratepayers.(c) The applicant shall pay the cost of notice required to be provided under this section.(d) Subsection (b) of this section shall not apply to:(1) a proposed transfer which in combination with any existing transfers totals less than 3,000 acre-feet of water per annum from the same water right;(2) a request for an emergency transfer of water under §297.17 of this title (relating to Emergency Authorization (Texas Water Code, §11.139));(3) a proposed transfer from a basin to its adjoining coastal basin; or(4) a proposed transfer from the part of the geographic area of a county or municipality, or the part of the retail service area of a retail public utility as defined by Texas Water Code, §13.002, that is within the basin of origin for use in that part of the geographic area of the county or municipality, or that contiguous part of the retail service area of the utility, not within the basin of origin. The further transfer and use of this water outside of such county, municipality, or the part of the retail service area of a retail public utility as defined by Texas Water Code, §13.002 as existing at the time of the transfer or as may exist in the future other than back to the basin of origin shall not be exempt under this paragraph;(5) a proposed transfer of water that is:(A) imported from a source located wholly outside the boundaries of this state, except water that is imported from a source located in the United Mexican States;(B) for use in this state; and(C) transported by using the bed and banks of any flowing natural stream in this state.</content><note type="source"><p>Source Note: The provisions of this §295.155 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective February 21, 1999, 24 TexReg 969; amended to be effective May 6, 2010, 35 TexReg 3500; amended to be effective August 28, 2014, 39 TexReg 6492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scC/s295.156"><num value="295.156">§295.156</num><heading>Notice for Emergency Water Use</heading><content>(a) An initial emergency authorization for the diversion and use of state water for a period of not more than 120 days under the Texas Water Code, §11.139, may be granted after notice to the governor and without the necessity of issuing the notice required for other water rights issued by the commission.(b) Notice of the hearing at which the commission determines whether to affirm, modify or set aside the emergency authorization is not subject to the requirements of Texas Water Code §11.132, but such general notice of the hearing shall be given as the commission deems practicable and meets the requirements of Texas Government Code, Chapter 2001. In the case of an emergency transfer, such notice shall be provided, at a minimum, to the water right holders whose right to use water is being temporarily transferred and to the governor.</content><note type="source"><p>Source Note: The provisions of this §295.156 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective February 21, 1999, 24 TexReg 969.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scC/s295.157"><num value="295.157">§295.157</num><heading>Notice of Hearing</heading><content>A hearing on an application may be held without the necessity of issuing further notice other than advising the applicant, executive director, public interest advocate, and all persons who have in writing notified the commission of their interest in the application of the time and place where the hearing is to convene. The chief clerk of the commission will mail such notice to these persons not less than 10 days before the date of the hearing.</content><note type="source"><p>Source Note: The provisions of this §295.157 adopted to be effective May 28, 1986, 11 TexReg 2326.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scC/s295.158"><num value="295.158">§295.158</num><heading>Notice of Amendments to Water Rights</heading><content>(a) On motion of executive director.(1) If the executive director determines to file a petition to amend a water right, notice of the determination stating the grounds therefore and a copy of a proposed amendment draft shall be personally served on or mailed by certified mail to the water right holder at the last address of record with the commission.(2) This notice shall be given at least 15 days before a petition is filed with the commission.(b) Requiring mailed and published notice. Unless authorized by subsection (c) of this section, applications for amendments to permits, certified filings, or certificates of adjudication, including, but not limited to, those of the following nature, must comply with requirements for a water use permit, including the notice requirements in the Texas Water Code, §11.132, and this subchapter:(1) to change the place of use when other water users of state water may be affected;(2) to increase an appropriation and/or rate or period of diversion;(3) to change the purpose of use when the change would authorize a greater consumption of state water or would materially alter the period of time when state water could be diverted;(4) to add points of diversion which would result in a greater rate of diversion or impair other water rights;(5) to remove or modify the requirements or conditions of a water right which were included for the protection of other water rights;(6) to change a point of diversion which may impair other water rights;(7) to relocate or enlarge a reservoir;(8) to extend the period of duration of any term permit;(9) to remove the authorization for storage in a reservoir that has not been constructed if the application requests an increase in the amount of water to be diverted or the diversion rate based on an evaporation credit; or(10) to change the use or purpose of use of a water right authorizing storage in an on-channel storage reservoir that has lost storage because of sedimentation from storage by diversion to storage as part of an aquifer storage and recovery project for later retrieval and use as authorized by the original water right.(c) Not requiring mailed and published notice.(1) Only an application to amend an existing permit, certified filing, or certificate of adjudication which does not contemplate an additional consumptive use of state water or an increased rate or period of diversion and which, in the judgment of the commission, has no potential for harming any other existing water right, is subject to amendment by the commission without notice other than that provided to the record holder. Once the technical review of an application is complete and the technical memoranda have been filed with the chief clerk of the commission, the commission shall consider whether additional notice is required based on the particular facts of the application.(2) Applications for the following do not require notice, except to the record holder, and do not require technical review:(A) to add a purpose of use that does not substantially alter:(i) the nature of the water right from a water right authorizing only non-consumptive use to a water right authorizing consumptive use; or(ii) a pattern of use that is explicitly authorized by or required by the original water right;(B) to add a place of use located in the same river basin as the place of use authorized in the original water right;(C) to change the point of diversion provided that:(i) the authorized rate of diversion is not increased;(ii) the original point of diversion and the new point of diversion are located on the same contiguous tract of land;(iii) there are no other water right holders with points of diversion located on the same watercourse between the original point of diversion and the new point of diversion;(iv) there are no streamflow gages located on the watercourse between the original point of diversion and the new point of diversion that are referenced in the original water right or in another water right authorizing a diversion from the same watercourse; and(v) there are no tributary watercourses that enter the watercourse that is the source of supply located between the original point of diversion and the new point of diversion.(3) Applications of the following descriptions may not require additional notice:(A) to cure ambiguities or ineffective provisions in a water right;(B) to reduce an appropriation or rate of diversion;(C) to change the point of diversion, except for applications under paragraph (2)(C) of this subsection, when the existing rate of diversion will not be increased and there are no interjacent water right holders of record between the originally authorized point of diversion and the new one, or when interjacent water users agree in writing to the amendment. If written agreements are not obtained, interjacent water right holders will be notified of the proposed change by certified mail and given two weeks within which to protest. If no protest is received, further notice will not be required;(D) to add additional points of diversion, except for applications under paragraph (2)(C) of this subsection, where the existing rate of diversion will not be increased and there are no water right holders of record between any originally authorized point of diversion and the new one to be added, or when interjacent water right holders agree in writing to the amendment. If written agreements are not obtained, interjacent water users will be notified of the proposed change by certified mail and given two weeks within which to protest. If no protest is received, further notice will not be required;(E) to increase the rate or period for diversion from a storage reservoir; and(F) to remove the authorization for storage in a reservoir that has not been constructed, if the water diverted under the right will be stored in an aquifer storage and recovery project for later retrieval and use as authorized by the original water right, provided that:(i) the application does not request an increase in the diversion amount or rate; and(ii) the executive director determines after an administrative review that the application will not cause a negative impact on other water rights or the environment that is greater than the effect the original permit would have had were the permit rights exercised to the full extent of the original permit.</content><note type="source"><p>Source Note: The provisions of this §295.158 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective May 20, 1997, 22 TexReg 4250; amended to be effective December 31, 2009, 34 TexReg 9454; amended to be effective May 28, 2020, 45 TexReg 3448.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scC/s295.159"><num value="295.159">§295.159</num><heading>Notice of Extension of Time To Commence or Complete Construction</heading><content>(a) If the new date of proposed commencement of construction is more than four years from the date of issuance of the permit, or if the new proposed completion time is more than five years from the date of completion required in the original permit, notice of an application for extension of time shall be mailed and published as required by the Texas Water Code, §11.132 and §11.143, and §295.151 of this title (relating to Notice of Application and Commission Action), §295.152 of this title (relating to Notice by Publication), and §295.153 of this title (relating to Notice by Mail). The chief clerk shall mail notice of the public hearing to the same persons to whom notice of the application for the permit was mailed. The applicant shall be required to publish notice of the hearing in the same manner in which an applicant for a water use permit is required to publish notice of an application. No other notice is required.(b) The notice of any application for an extension of time to commence or complete construction must provide that the commission shall also consider whether the appropriation shall be forfeited for failure by the applicant to demonstrate sufficient due diligence and justification for delay.(c) This section does not apply to a permit for construction of a reservoir designed for storage of more than 50,000 acre-feet of water. No notice shall be required for an extension of time to commence or complete construction of a reservoir designed for storage of more than 50,000 acre-feet of water.</content><note type="source"><p>Source Note: The provisions of this §295.159 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective January 30, 1992, 17 TexReg 407; amended to be effective May 14, 2020, 45 TexReg 3101.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scC/s295.160"><num value="295.160">§295.160</num><heading>Notice of Applications to Convey Stored Water</heading><content>If the commission has received a written statement of a proposed conveyance of stored water, it shall send notice to each diverter of record on the watercourse between the origin and terminus of the transit. The notice shall set forth the approximate time that delivery will be commenced and completed, the legal consequences that could result from the unlawful diversion and taking of such water in transit, and other details the commission considers appropriate. The expense of mailing notice shall be charged to the applicant. These provisions may be waived by the commission of an emergency condition exists and time does not permit following the procedure outlined. Further, the requirements of this section are not applicable if water is being released from upstream storage under order of the commission.</content><note type="source"><p>Source Note: The provisions of this §295.160 adopted to be effective May 28, 1986, 11 TexReg 2326.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scC/s295.161"><num value="295.161">§295.161</num><heading>Notice of Application to Convey Water in Bed and Banks</heading><content>(a) Except for an application to convey imported water, new or future increases of groundwater-based effluent or other groundwater as provided in subsection (b) of this section, notice of an application to convey groundwater-based effluent or other water in the bed and banks of a stream or watercourse pursuant to Texas Water Code, §11.042(b) and (c) shall be provided by first class mail, postage prepaid, by the commission to every water right holder of record downstream of the discharge point at least thirty (30) days prior to commission consideration of the application.(b) If the commission has received a written statement of a proposed conveyance of imported water pursuant to Texas Water Code, §11.042(a-1), or new or future increases in groundwater-based effluent or other groundwaters in the bed and banks of a stream or watercourse pursuant to Texas Water Code, §11.042(b), it shall send notice to each diverter of record on the watercourse between the proposed point of discharge and the proposed point of diversion. The notice shall set forth the approximate time that deliveries of such water will occur, the legal consequences that could result from the unlawful diversion and taking of such water in transit, and other details the commission considers appropriate.(c) Notice of an application for a bed and banks permit under this section shall also be provided to the Texas Parks and Wildlife Department and the Public Interest Counsel.(d) No published notice shall be required for an application under this section.(e) The applicant shall be responsible for the costs of providing notice under this section. (For notice requirements relating to the conveyance of stored water under Texas Water Code, §11.042(a), see §295.160 of this title (relating to Notice of Applications to Convey Stored Water).)(f) Nothing in this section is intended to deny any additional notice to an affected person that may be required under the Texas Administrative Procedure Act.</content><note type="source"><p>Source Note: The provisions of this §295.161 adopted to be effective February 21, 1999, 24 TexReg 969; amended to be effective May 6, 2010, 35 TexReg 3500.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c295/scD"><num value="D">SUBCHAPTER D</num><heading>CONTESTED CASE HEARING</heading><section identifier="/us/state/tx/tac/t30/p1/c295/scD/s295.171"><num value="295.171">§295.171</num><heading>Request for Contested Case Hearing</heading><content>A request for contested case hearing on an application for a water use permit or amendment made by the applicant, the executive director, or an affected person who objects to the application must be made in writing, must comply with the requirements of Chapter 55, Subchapter G, of this title (relating to Requests for Reconsideration and Contested Case Hearings; Public Comment), and specifically §55.251 of this title (relating to Requests for Contested Case Hearing, Public Comment), and must be submitted to the commission within 30 days after the publication of the notice of application. The commission may extend the time allowed for submitting a request for contested case hearing.</content><note type="source"><p>Source Note: The provisions of this §295.171 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective August 31, 2006, 31 TexReg 6751.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scD/s295.172"><num value="295.172">§295.172</num><heading>Contested Case Hearing</heading><content>The commission may conduct a contested case hearing on any application. If the commission has received a request for a contested case hearing, which it determines is in compliance with §55.251 and §55.255 of this title (relating to Requests for Contested Case Hearing, Public Comment; and Commission Action on Hearing Request), if it determines that a contested case hearing would serve the public interest, or if a commissioner requests a contested case hearing, the commission shall conduct a contested case hearing or refer the matter to the State Office of Administrative Hearings for a contested case hearing. See §295.157 of this title (relating to Notice of Hearing).</content><note type="source"><p>Source Note: The provisions of this §295.172 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective August 31, 2006, 31 TexReg 6751.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scD/s295.173"><num value="295.173">§295.173</num><heading>Action on Application Without Contested Case Hearing</heading><content>The commission may take action on an application requiring public notice at a regular meeting, without holding a contested case hearing, provided:(1) at least 30 days prior to the regular meeting at which action is taken, notice of the application has been given by publication and by mail and:(A) no person has requested a contested case hearing within 30 days of the publication of notice or within any extension of that period authorized by the commission; or(B) the commission has denied all timely filed hearing requests for failing to meet applicable requirements; and(2) no commissioner has submitted a request for a contested case hearing within the 30-day period after publication of the notice or requests a contested case hearing at the regular meeting of the commission at which action on the application could be taken according to such notice.</content><note type="source"><p>Source Note: The provisions of this §295.173 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective August 31, 2006, 31 TexReg 6751.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scD/s295.174"><num value="295.174">§295.174</num><heading>Applications for Temporary Permits, Emergency Permits, and Authorization to Divert Water From Unsponsored and Storage-Limited Projects for Domestic and Livestock Purposes</heading><content>The sections in this subchapter relating to requests for contested case hearings and the requirements to hold contested case hearings in certain circumstances do not apply to applications for temporary water use permits, emergency water use permits, or authorization to divert water from unsponsored and storage-limited projects for domestic and livestock purposes. In these specified instances, the commission may conduct such hearings as it deems appropriate. However, the commission shall conduct a hearing on a temporary permit if it has been provisionally issued and if the permit has been cancelled upon request of the executive director under §295.181 of this title (relating to Provisional Disposition of Application for Temporary Permit).</content><note type="source"><p>Source Note: The provisions of this §295.174 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective August 31, 2006, 31 TexReg 6751.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scD/s295.175"><num value="295.175">§295.175</num><heading>Cancellation of Water Rights</heading><content>The commission shall conduct a hearing to determine whether a water right should be cancelled, in whole or in part, under the Texas Water Code, §§11. 171-11.186, if the executive director requests such a hearing. A hearing under the Texas Water Code, §11.146, is required in order to determine whether a permit has been or should be forfeited and cancelled in whole or in part for failure of the permittee to commence or complete construction, unless permittee executes a form abandoning all rights under the permit and waiving rights to notice and hearing thereon. No hearing is required if the water right holder executes a form abandoning all rights under the water right and waiving the right to notice and hearing.</content><note type="source"><p>Source Note: The provisions of this §295.175 adopted to be effective May 28, 1986, 11 TexReg 2326.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scD/s295.176"><num value="295.176">§295.176</num><heading>Public Hearing on Application for Local Sponsor Designation</heading><content>After a local sponsor application is filed with the commission, the chief clerk shall issue a notice of public hearing to be published by the applicant or his agent in a newspaper having general circulation in that section of the state where the project is proposed to be located. After notice, the commission shall hold a public hearing to consider applications for local sponsor designations. Any interested party may appear and be heard for or against an applicant being designated as local sponsor of a project. After notice and hearing, the commission shall grant or reject the application and shall state its reasons. The commission may designate co-sponsors for the project, or it may grant one application and deny others.</content><note type="source"><p>Source Note: The provisions of this §295.176 adopted to be effective December 16, 1987, 12 TexReg 4531.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scD/s295.177"><num value="295.177">§295.177</num><heading>Evidentiary Hearing on Interbasin Transfer Amendments</heading><content>An evidentiary hearing on an application to transfer water authorized under an existing water right is limited to considering issues related to the requirements of Texas Water Code, §11.085.</content><note type="source"><p>Source Note: The provisions of this §295.177 adopted to be effective August 28, 2014, 39 TexReg 6492.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c295/scE"><num value="E">SUBCHAPTER E</num><heading>SPECIAL ACTIONS OF THE COMMISSION</heading><section identifier="/us/state/tx/tac/t30/p1/c295/scE/s295.181"><num value="295.181">§295.181</num><heading>Provisional Disposition of Application for Temporary Permit</heading><content>(a) Provisional disposition. The executive director shall review each application for a temporary permit and make a recommendation as to whether or not sufficient water is available at the proposed point of diversion to satisfy the requirements of the application as well as all existing water rights. If the application is for not more than 10 acre-feet of water and for a period of not more than one year, if no valid complaint has been received by the commission prior to or during the pendency of the application from a person alleging the matters set out in subsection (b) of this section, and if it appears to the executive director that sufficient water is available at the proposed point of diversion to satisfy the requirements of the application as well as all existing water rights, the application will be forwarded to the commission, any member of which shall have the authority to make provisional disposition of the application by issuing a temporary permit to the applicant.(b) Action upon receipt of complaint. If a complaint is received before or after diversions are commenced under a temporary permit issued provisionally as provided in subsection (a) of this section from a person alleging that he is the owner of a water right or is a lawful user of water on the stream affected by the temporary permit and that the diversion of water under the temporary permit will impair the rights of the complainant, the executive director shall make an immediate investigation to determine whether there is a reasonable basis for such complaint. If it appears from a preliminary investigation that there is a probability that diversions under the temporary permit will result in injury to the complainant, the executive director shall request that the commission immediately notify, and the commission shall immediately notify, the holder of such temporary permit that the permit is cancelled without notice and hearing and that no further diversions may be made under it pending a full hearing, as provided in §295.174 of this title (relating to Applications for Temporary Permits, Emergency Permits, and Authorization to Divert Water From Unsponsored and Storage-Limited Projects for Domestic and Livestock Purposes).</content><note type="source"><p>Source Note: The provisions of this §295.181 adopted to be effective May 28, 1986, 11 TexReg 2326.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scE/s295.182"><num value="295.182">§295.182</num><heading>Application for Authorization to Divert Water From Unsponsored and Storage-Limited Projects for Domestic and Livestock Use</heading><content>(a) Authorization by commissioner. Any commissioner is authorized to issue a letter authorizing the diversion of water from unsponsored or storage-limited projects for domestic and livestock use.(b) Revocation of authorization. When compliance with the conditions contained in the letter authorizing the diversion of water is not occurring or, in the case of domestic use, water becomes reasonably available through a water supply system, the authorization may be revoked by sending a letter of revocation to the user setting forth the basis for the revocation and signed by a commissioner.</content><note type="source"><p>Source Note: The provisions of this §295.182 adopted to be effective May 28, 1986, 11 TexReg 2326.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scE/s295.183"><num value="295.183">§295.183</num><heading>Application for an Amendment Based on a Water Supply Contract Action of the Commission</heading><content>The commission shall approve, in whole or in part, the application and issue an amendment based on a water supply contract only if it determines that:(1) the supplier has met the requirements of §§297.101-297.108 of this title (relating to Water Supply Contracts and Amendments);(2) the proposed contractual amendment is not detrimental to the public welfare, including a consideration of whether the contract, together with all other contracts previously submitted by the supplier and contractual permits in effect at the time the commission considers the application, provides for the storage, diversion, or use of state water in excess of the water right of the supplier; and(3) the proposed sale will not impair existing water rights.</content><note type="source"><p>Source Note: The provisions of this §295.183 adopted to be effective May 28, 1986, 11 TexReg 2326.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scE/s295.184"><num value="295.184">§295.184</num><heading>Extension of Time for Construction</heading><content>The commission may, by entering an order of record, extend the time to commence or complete construction for a reasonable period of time.</content><note type="source"><p>Source Note: The provisions of this §295.184 adopted to be effective May 28, 1986, 11 TexReg 2326.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scE/s295.185"><num value="295.185">§295.185</num><heading>Condemnation</heading><content>Full authority is lodged with the commission to condemn existing works, the existence or operation of which may, in the judgment of the commission, become a public menace or a danger to life and property. The existence of such works may be brought to the attention of the commission by complaint.</content><note type="source"><p>Source Note: The provisions of this §295.185 adopted to be effective May 28, 1986, 11 TexReg 2326.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scE/s295.186"><num value="295.186">§295.186</num><heading>Reservoirs Without Low-Flow Outlets</heading><content>The commission may order the owner of a lawful dam to install a low-flow outlet or other means sufficient to pass such flows as the commission finds necessary to satisfy the rights of downstream domestic and livestock users, the senior and superior rights of other authorized users, instream flow requirements, and estuarine inflow requirements.</content><note type="source"><p>Source Note: The provisions of this §295.186 adopted to be effective May 28, 1986, 11 TexReg 2326.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c295/scF"><num value="F">SUBCHAPTER F</num><heading>MISCELLANEOUS</heading><section identifier="/us/state/tx/tac/t30/p1/c295/scF/s295.201"><num value="295.201">§295.201</num><heading>Filing of Instruments</heading><content>(a) Received date. All instruments, correspondence, and material delivered to the executive director shall be stamped or marked "Received' and the date thereof clearly indicated.(b) Acceptance of water use permit application for filing. Any water use permit application requiring commission action shall not be formally accepted for filing by the commission until it is reviewed by the executive director as to form, fees, and data required by law and declared administratively complete under §281.17 of this title (relating to Notice of Receipt of Application and Declaration of Administrative Completeness). No substantive changes may be made after an application has been filed with the chief clerk of the commission by the executive director. Applications for permits to appropriate state water or amendments to permits, certified filings, or certificates of adjudication shall not be considered filed as required by the Texas Water Code, §11.141, until declared administratively complete by the executive director and filed by the executive director with the chief clerk of the commission.</content><note type="source"><p>Source Note: The provisions of this §295.201 adopted to be effective May 28, 1986, 11 TexReg 2327.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scF/s295.202"><num value="295.202">§295.202</num><heading>Reports</heading><content>(a) Annual reports. Every person who takes water from a stream or reservoir during the preceding calendar year shall submit a written report to the commission. Blank forms for recording the information required by the Texas Water Code, §11.031 and §11.032(a), shall be mailed to all surface water users during January of each year. Water use report forms shall be furnished to anyone on request. In completing the reports, a water user shall fill in the blanks to the best of his ability in accordance with the instructions that accompany each form. The report must be returned to the executive director not later than March 1 of each year to avoid the penalties prescribed by the Texas Water Code, §11.031(b). Water users under the jurisdiction of the Rio Grande Watermaster shall return their annual reports to the Rio Grande Watermaster so that office can prepare and submit water use data covering the area of watermaster control. No report is required to be filed by persons who divert water solely for domestic and livestock purposes.(b) Reports by temporary permit holders. Upon the expiration of the period for which a temporary permit is granted, the appropriator shall cease diverting water and file a written report with the executive director, stating the amount of water and the date of cessation of use.(c) Report on time limitations for construction. Within 10 days after beginning construction or installation of diversion and distribution facilities, a permittee shall file a statement with the executive director showing that work was begun within the time limit allowed. Immediately upon completion of the project, a similar statement must be filed with the executive director showing that the work was completed within the specified time limitations.(d) Report of contractual sales.(1) The purchaser under a contract to supply state water shall submit annual written reports to the executive director in accordance with subsection (a) of this section indicating the total amount of water diverted each month and the total amount diverted each week. Purchasers diverting from the perimeter of a reservoir need to report only monthly diversions.(2) The supplier shall submit annual written reports to the executive director in accordance with subsection (a) of this section indicating the total amount of water diverted and used each month for each purpose and the total amount released downstream each week to each purchaser under the storage water right specified in the contract. A separate reporting of the amount of water estimated for transmission losses shall be made.(3) These reporting requirements shall apply to all contractual permits and water supply contracts.(4) For purposes of this subchapter, a week is the period from Saturday midnight to Saturday midnight.</content><note type="source"><p>Source Note: The provisions of this §295.202 adopted to be effective May 28, 1986, 11 TexReg 2327; amended to be effective January 10, 1997, 22 TexReg 55; amended to be effective August 15, 2002, 27 TexReg 7149; amended to be effective May 19, 2016, 41 TexReg 3508.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c295/scG"><num value="G">SUBCHAPTER G</num><heading>DESALINATION, PROCEDURAL</heading><section identifier="/us/state/tx/tac/t30/p1/c295/scG/s295.300"><num value="295.300">§295.300</num><heading>Applicability</heading><content>(a) This subchapter only applies to diversion and use of marine seawater for desalination, diversion of seawater from a bay or arm of the Gulf of Mexico for desalination solely for industrial purposes, and conveyance of treated marine seawater through the bed and banks of a flowing stream. The commission may issue a permit under this subchapter to authorize a diversion of state water from the Gulf of Mexico or a bay or arm of the Gulf of Mexico for desalination and use if:(1) the point of diversion is located less than three miles seaward of any point located on the coast of this state; or(2) the water at the proposed diversion point contains a total dissolved solids concentration based on a yearly average of samples taken monthly at the water source of less than 20,000 milligrams per liter.(b) A person may divert and use state water that consists of marine seawater or seawater without obtaining a permit if subsection (a) of this section does not apply.(c) A person may not begin construction of a facility for the diversion of marine seawater or seawater without obtaining a permit until the person has provided data to the commission demonstrating:(1) based on the location of each proposed diversion location, that subsection (a)(1) of this section does not apply; and(2) based on the analysis of samples taken at the water source for each proposed diversion location over a period of at least one year, in accordance with the requirements set out in §297.205 of this title (relating to Determination of Total Dissolved Solids Concentration) that subsection (a)(2) of this section does not apply.(d) A person who has begun construction of a facility for the diversion of marine seawater or seawater without obtaining a permit because the person has demonstrated that subsection (a)(2) of this section does not apply is not required to obtain a permit for the facility if the total dissolved solids concentration of the marine seawater or seawater at the water source subsequently changes so that subsection (a)(2) of this section applies.(e) This subchapter does not apply to a diversion of marine seawater from a point of diversion located in a bay or estuary unless the diversion is solely for the purpose of desalination of seawater for industrial use under Texas Water Code (TWC), §11.1405.(f) TWC, Chapter 11, applies to a permit or authorization under this subchapter in the same manner as that chapter applies to a permit or authorization under that chapter which is not subject to this subchapter.(g) If a person seeks to utilize a facility that was constructed or permitted for the diversion of seawater solely for the purpose of desalination for industrial use under this subchapter to divert seawater for another use, the person must first obtain a water right permit pursuant to provisions of TWC, Chapter 11, other than TWC, §11.1405.</content><note type="source"><p>Source Note: The provisions of this §295.300 adopted to be effective December 8, 2016, 41 TexReg 9539.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scG/s295.301"><num value="295.301">§295.301</num><heading>Definitions</heading><content>The following words or phrases have the following meanings in this subchapter unless the context clearly indicates otherwise:(1) Affected person--A person who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the application. An interest common to members of the general public does not qualify as a personal justiciable interest. The determination of whether a person is affected shall be governed by §55.256 of this title (relating to Determination of Affected Person).(2) Marine seawater--Water that is derived from the Gulf of Mexico for desalination.(3) Seawater--Water that is derived from a bay or arm of the Gulf of Mexico for desalination and use solely for industrial purposes.(4) Three-mile seaward boundary--The three nautical mile boundary developed by the Texas General Land Office for the Dispersant Use Pre-Approval Zone.</content><note type="source"><p>Source Note: The provisions of this §295.301 adopted to be effective December 8, 2016, 41 TexReg 9539.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scG/s295.302"><num value="295.302">§295.302</num><heading>Requirements for Application for Diversion of Marine Seawater and Diversion of Seawater</heading><content>(a) An application for diversion of seawater from a bay or arm of the Gulf of Mexico for industrial purposes or for diversion of marine seawater must be submitted in accordance with §295.2 of this title (relating to Preparation of Application) and include, for each applicant, the full name, post office address, telephone number, and federal identification number. If the applicant is a partnership, it shall be designated by the firm name followed by the words "a partnership." If the applicant is acting as trustee for another, it shall be designated by the trustee's name followed by the word "trustee." If someone other than the named applicant executes the application, the name, position, post office address, and telephone number of the person executing the application shall be given.(b) The application shall include the signature of the applicant in accordance with §295.14 of this title (relating to Signature of Applicant). Each applicant shall subscribe and swear to the application before any person entitled to administer oaths, who shall also sign his or her name and affix his or her seal of office to the application.(c) The application shall state the location of point(s) of diversion and provide latitude and longitude coordinates in decimal degrees to six decimal places for each point.(d) The total amount of marine seawater or seawater from a bay or arm of the Gulf of Mexico to be diverted and used shall be stated in definite terms, i.e., a definite number of acre-feet annually and the application shall state the maximum rate of diversion in gallons per minute or cubic feet per second for each diversion point.(e) The application shall state each purpose of use in definite terms. If the application requests authorization to use marine seawater for multiple purposes, the application shall expressly state an annual amount of marine seawater to be used for the multiple purposes as well as for each purpose of use.(f) The applicant shall provide evidence that the marine seawater or seawater diverted from a bay or arm of the Gulf of Mexico will be treated in accordance with applicable commission rules, based on the purpose for which the water is to be used, before it is used.(g) The application must include a water conservation plan meeting the requirements contained in §297.208 of this title (relating to Consideration of Water Conservation).(h) The application shall contain information describing how it addresses a water supply need in a manner that is consistent with the state water plan or the applicable approved regional water plan or, in the alternative, describe conditions that warrant a waiver of this requirement.(i) The application must include a determination of the total dissolved solids concentration of the marine seawater or seawater at the water source based on monthly sampling and analysis, as described in §297.205 of this title (relating to Determination of Total Dissolved Solids Concentration), and provide the data collected to the commission.(j) The application shall provide documentation that the applicant will take reasonable measures to minimize impingement and entrainment associated with the diversion of marine seawater or seawater as described in §297.209 of this title (relating to Impingement and Entrainment).(k) The application shall include:(1) documentation that the point or points from which a facility the person proposes to construct for diversion of marine seawater are within the zones identified by the Texas Parks and Wildlife Department (TPWD) and the Texas General Land Office (GLO) on the date that the application is submitted; or(2) documentation of the results of consultation with the TPWD and the GLO regarding the point or points from which a facility the person proposes to construct may divert seawater.</content><note type="source"><p>Source Note: The provisions of this §295.302 adopted to be effective December 8, 2016, 41 TexReg 9539; amended to be effective May 14, 2020, 45 TexReg 3104.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scG/s295.303"><num value="295.303">§295.303</num><heading>Review Timeframes</heading><content>(a) The review timeframes in this section only apply to applications which are determined to be administratively complete when submitted. If the application is not administratively complete, the application will not be considered for expedited processing under this section.(b) Applications shall be reviewed by the staff for administrative completeness within 10 working days of receipt of the application by the executive director.(c) After an application is determined by the executive director to be administratively complete, the executive director shall commence a technical review as necessary and appropriate. For purposes of this subchapter, the technical review period is that period of time beginning with the completion of the initial review period and will continue for a period of time not to exceed 60 working days, except as extended pursuant to subsection (d) of this section.(d) The applicant shall be promptly notified of any additional technical material necessary for a complete review. If the applicant provides the information within the technical review period prescribed by subsection (c) of this section, the executive director will complete processing of the application within the technical review period extended by the number of days taken by the applicant to provide the additional data. If the necessary additional information is not received by the executive director prior to expiration of the original technical review period and the information is considered essential by the executive director to make recommendations to the commission on a particular matter, the executive director may return the application to the applicant. In no event, however, will the applicant have less than 30 days to provide the technical data before an application is returned. And, in no event shall the executive director have less than 60 working days, exclusive of any time spent waiting for submission of additional information, to complete the technical review. Decisions to return the application to the applicant during the technical review stage will be made on a case-by-case basis. The applicant has the option of having the question of sufficiency of necessary technical data referred to the commission for a decision instead of having the application returned.</content><note type="source"><p>Source Note: The provisions of this §295.303 adopted to be effective December 8, 2016, 41 TexReg 9539.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scG/s295.304"><num value="295.304">§295.304</num><heading>Notice of Application to Divert Marine Seawater or Seawater</heading><content>(a) At the time that the technical review of an application for a permit to divert marine seawater or seawater has been completed and the technical memoranda have been filed by the executive director with the chief clerk of the commission, the chief clerk shall give notice by email to the county judge for each county in which the proposed facility is proposed to be located, the Texas Parks and Wildlife Department, the Texas General Land Office, and any person who has submitted a written request to the Office of the Chief Clerk providing a valid email address and asking to receive notice of applications filed under this subchapter. The notice shall also be posted on the commission's website.(b) The notice must:(1) state the name and address of the applicant;(2) state the date on which the application was received by the commission;(3) state the date the application was filed by the executive director with the chief clerk as required by §281.17(a) or (b) of this title (relating to Notice of Receipt of Application and Declaration of Administrative Completeness);(4) state that the executive director has determined that the technical review of the application is complete;(5) state the application number;(6) state the purpose and amount of the proposed diversion of marine seawater or seawater;(7) identify the location of the diversion point(s);(8) state the executive director's recommendation regarding the application;(9) state that a person may submit written comments and that an affected person, the applicant, the executive director, and the commission may request a contested case hearing and indicate the deadlines for doing so;(10) include the name and address of the agency, and the telephone number of an agency contact from whom interested persons may obtain future information; and(11) give any additional information the commission considers necessary.(c) Requests for a contested case hearing will be processed in accordance with Chapter 55, Subchapter G of this title (relating to Requests for Contested Case Hearing and Public Comment on Certain Applications).</content><note type="source"><p>Source Note: The provisions of this §295.304 adopted to be effective December 8, 2016, 41 TexReg 9539.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scG/s295.305"><num value="295.305">§295.305</num><heading>Requirements for an Authorization to Convey Treated Marine Seawater in Bed and Banks</heading><content>(a) The application shall include evidence that the marine seawater conveyed under a permit subject to the requirement in this section will be treated so as to meet standards that are at least as stringent as the water quality standards adopted by the commission and applicable to the receiving stream or impoundment. More stringent treatment may be required if the commission determines it is necessary to protect water quality.(b) Treated marine seawater that is conveyed under an authorization granted under this section may be used only by the person to whom the authorization is granted.(c) This section does not prohibit a person from conveying treated marine seawater in any other manner authorized by law.(d) A person wishing to place treated marine seawater into a stream or watercourse, convey the treated marine seawater in the watercourse or stream, and subsequently divert such treated marine seawater shall file an application with the commission containing the following information:(1) the name, mailing address, and telephone number of the applicant;(2) the name of the stream and the locations of the point of discharge and diversion as identified on a United States Geological Survey 7.5-minute topographical map(s);(3) the source, amount, and rates of discharge and diversion;(4) a description of the water quality of the water discharged and the permit number and name of any related discharge permit;(5) an assessment of the adequacy of the quantity and quality of flows remaining after the proposed diversion to meet instream uses and bay and estuary freshwater inflow needs;(6) the estimated amount of treated marine seawater that will be lost to transportation, evaporation, seepage, channel or other associated carriage losses from the point of discharge to the point of diversion, including the method used to calculate the losses;(7) an accounting plan that demonstrates that the applicant will only divert the amount of treated marine seawater discharged less losses; and(8) any other information the executive director may need to complete an analysis of the application.</content><note type="source"><p>Source Note: The provisions of this §295.305 adopted to be effective December 8, 2016, 41 TexReg 9539.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c295/scG/s295.306"><num value="295.306">§295.306</num><heading>Notice of Application to Convey Treated Marine Seawater in Bed and Banks</heading><content>(a) Notice of an application to convey treated marine seawater in the bed and banks of a stream or watercourse shall be provided by first class mail, postage prepaid, by the commission to every water right holder of record downstream of the discharge point at least 30 days prior to commission consideration of the application. Notice shall also be provided to any person who has submitted a written request to the Office of the Chief Clerk providing a valid email address and asking to receive notice of applications filed under this subchapter. The notice shall be posted on the commission's website.(b) No published notice shall be required for an application under this section.(c) The applicant shall be responsible for the costs of providing notice under this section.(d) The notice must:(1) state the name and address of the applicant;(2) state the date on which the application was received by the commission;(3) state the date the application was filed by the executive director with the chief clerk as required by §281.17(a) or (b) of this title (relating to Notice of Receipt of Application and Declaration of Administrative Completeness);(4) state that the executive director has determined that the technical review of the application is complete;(5) state the application number;(6) state the purpose of use for the conveyed treated marine seawater;(7) state the executive director's recommendation regarding the application;(8) state that a person may provide written comments on the application and indicate the deadline for doing so;(9) for applications that do not request authorization to convey treated marine seawater through a reservoir or impoundment, the notice shall state that a person may not request a contested case hearing;(10) for applications that request authorization to convey treated marine seawater through a reservoir or impoundment, the notice shall state that an affected person, the commission, the executive director, and the applicant may request a contested case hearing and indicate the deadline for doing so;(11) include the name and address of the agency, and the telephone number of an agency contact from whom interested persons may obtain future information; and(12) give any additional information the commission considers necessary.(e) Requests for a contested case hearing will be processed in accordance with Chapter 55, Subchapter G of this title (relating to Request for Contested Case Hearing and Public Comment on Certain Applications).(f) Nothing in this section is intended to deny any additional notice to an affected person that may be required under the Texas Administrative Procedure Act.</content><note type="source"><p>Source Note: The provisions of this §295.306 adopted to be effective December 8, 2016, 41 TexReg 9539.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c297"><num value="297">CHAPTER 297</num><heading>WATER RIGHTS, SUBSTANTIVE</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c297/scA"><num value="A">SUBCHAPTER A</num><heading>DEFINITIONS AND APPLICABILITY</heading><section identifier="/us/state/tx/tac/t30/p1/c297/scA/s297.1"><num value="297.1">§297.1</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter and in Chapters 288 and 295 of this title (relating to Water Conservation Plans, Drought Contingency Plans, Guidelines and Requirements; and Water Rights, Procedural, respectively), shall have the following meanings, unless the context clearly indicates otherwise.(1) Agriculture or agricultural--Any of the following activities:(A) cultivating the soil to produce crops for human food, animal feed, or planting seed or for the production of fibers;(B) the practice of floriculture, viticulture, silviculture, and horticulture, including the cultivation of plants in containers or non-soil media by a nursery grower;(C) raising, feeding, or keeping animals for breeding purposes or for the production of food or fiber, leather, pelts, or other tangible products having a commercial value;(D) raising or keeping equine animals;(E) wildlife management;(F) planting cover crops, including cover crops cultivated for transplantation, or leaving land idle for the purpose of participating in any governmental program or normal crop or livestock rotation procedure; and(G) aquaculture as defined in Texas Agriculture Code, §134.001, which reads "'aquaculture' or 'fish farming' means the business of producing and selling cultured species raised in private facilities. Aquaculture or fish farming is an agricultural activity."(2) Agricultural use--Any use or activity involving agriculture, including irrigation.(3) Appropriations--The process or series of operations by which an appropriative right is acquired. A completed appropriation thus results in an appropriative right; the water to which a completed appropriation in good standing relates is appropriated water.(4) Appropriative right--The right to impound, divert, store, take, or use a specific quantity of state water acquired by law.(5) Aquifer recharge project--A project involving the intentional recharge of an aquifer by means of an injection well or other means of infiltration, as described in Texas Water Code, §27.201(1). (6) Aquifer Storage and Recovery Project--A project involving the injection of water into a geologic formation for the purpose of subsequent recovery and beneficial use by the project operator. (7) Baseflow or normal flow--The portion of streamflow uninfluenced by recent rainfall or flood runoff and is comprised of springflow, seepage, discharge from artesian wells or other groundwater sources, and the delayed drainage of large lakes and swamps. (Accountable effluent discharges from municipal, industrial, agricultural, or other uses of ground or surface waters may be included at times.)(8) Beneficial inflows--Freshwater inflows providing for a salinity, nutrient, and sediment loading regime adequate to maintain an ecologically sound environment in the receiving bay and estuary that is necessary for the maintenance of productivity of economically important and ecologically characteristic sport or commercial fish and shellfish species and estuarine life upon which such fish and shellfish are dependent.(9) Beneficial use--Use of the amount of water which is economically necessary for a purpose authorized by law, when reasonable intelligence and reasonable diligence are used in applying the water to that purpose and shall include conserved water.(10) Certificate of adjudication--An instrument evidencing a water right issued to each person adjudicated a water right in conformity with the provisions of Texas Water Code, §11.323, or the final judgment and decree in State of Texas v. Hidalgo County Water Control and Improvement District No. 18, 443 S.W.2d 728 (Texas Civil Appeals - Corpus Christi 1969, writ ref. n.r.e.).(11) Certified filing--A declaration of appropriation or affidavit which was filed with the State Board of Water Engineers under the provisions of the 33rd Legislature, 1913, General Laws, Chapter 171, §14, as amended.(12) Claim--A sworn statement filed under Texas Water Code, §11.303.(13) Commencement of construction--An actual, visible step beyond planning or land acquisition, which forms the beginning of the on-going (continuous) construction of a project in the manner specified in the approved plans and specifications, where required, for that project. The action must be performed in good faith with the bona fide intent to proceed with the construction.(14) Conservation--Those practices, techniques, and technologies that will reduce the consumption of water, reduce the loss or waste of water, improve the efficiency in the use of water, or increase the recycling and reuse of water so that a water supply is made available for future or alternative uses.(15) Conserved water--That amount of water saved by a water right holder through practices, techniques, or technologies that would otherwise be irretrievably lost to all consumptive beneficial uses arising from the storage, transportation, distribution, or application of the water. Conserved water does not mean water made available simply through its non-use without the use of such practices, techniques, or technologies.(16) Dam--Any artificial structure, together with any appurtenant works, which impounds or stores water. All structures which are necessary to impound a single body of water shall be considered as one dam. A structure used only for diverting water from a watercourse by gravity is a diversion dam.(17) Diffused surface water--Water on the surface of the land in places other than watercourses. Diffused water may flow vagrantly over broad areas coming to rest in natural depressions, playa lakes, bogs, or marshes. (An essential characteristic of diffused water is that its flow is short-lived.)(18) District--Any district or authority created by authority of the Texas Constitution, either Article III, §52, (b), (1) and (2), or Article XVI, §59.(19) Domestic use--Use of water by an individual or a household to support domestic activity. Such use may include water for drinking, washing, or culinary purposes; for irrigation of lawns, or of a family garden and/or orchard; for watering of domestic animals; and for water recreation including aquatic and wildlife enjoyment. If the water is diverted, it must be diverted solely through the efforts of the user. Domestic use does not include water used to support activities for which consideration is given or received or for which the product of the activity is sold.(20) Drought of record--The historic period of record for a watershed in which the lowest flows were known to have occurred based on naturalized streamflow.(21) Firm yield--That amount of water that the reservoir could have produced annually if it had been in place during the worst drought of record. In performing this simulation, naturalized streamflows will be modified as appropriate to account for the full exercise of upstream senior water rights is assumed as well as the passage of sufficient water to satisfy all downstream senior water rights valued at their full authorized amounts and conditions as well as the passage of flows needed to meet all applicable permit conditions relating to instream and freshwater inflow requirements.(22) Groundwater--Water under the surface of the ground other than underflow of a stream and underground streams, whatever may be the geologic structure in which it is standing or moving.(23) Habitat Mitigation--Actions taken to off-set anticipated adverse environmental impacts from a proposed project. Such actions and their sequence include:(A) avoiding the impact altogether by not taking a certain action or parts of an action or pursuing a reasonably practicable alternative;(B) minimizing impacts by limiting the degree or magnitude of the action and its implementation;(C) rectifying the impact by repairing, rehabilitating, or restoring the affected environment;(D) reducing or eliminating the impact over time by preservation and maintenance operations during the life of the project; and(E) compensating for the impact by replacing or providing substitute resources or environments.(24) Hydropower use--The use of water for hydroelectric and hydromechanical power and for other mechanical devices of like nature.(25) Industrial use--The use of water in processes designed to convert materials of a lower order of value into forms having greater usability and commercial value, including the development of power by means other than hydroelectric, but does not include agricultural use.(26) Instream use--The beneficial use of instream flows for such purposes including, but not limited to, navigation, recreation, hydropower, fisheries, game preserves, stock raising, park purposes, aesthetics, water quality protection, aquatic and riparian wildlife habitat, freshwater inflows for bays and estuaries, and any other instream use recognized by law. An instream use is a beneficial use of water. Water necessary to protect instream uses for water quality, aquatic and riparian wildlife habitat, recreation, navigation, bays and estuaries, and other public purposes may be reserved from appropriation by the commission.(27) Irrigation--The use of water for the irrigation of crops, trees, and pasture land, including, but not limited to, golf courses and parks which do not receive water through a municipal distribution system.(28) Irrigation water efficiency--The percentage of that amount of irrigation water which is beneficially used by agriculture crops or other vegetation relative to the amount of water diverted from the source(s) of supply. Beneficial uses of water for irrigation purposes include but are not limited to evapotranspiration needs for vegetative maintenance and growth and salinity management and leaching requirements associated with irrigation.(29) Livestock use--The use of water for the open-range watering of livestock, exotic livestock, game animals or fur-bearing animals. For purposes of this definition, the terms livestock and exotic livestock are to be used as defined in Texas Agriculture Code, §142.001, and the terms game animals and fur-bearing animals are to be used as defined in Texas Parks and Wildlife Code, §63.001 and §71.001, respectively.(30) Mariculture--The propagation and rearing of aquatic species, including shrimp, other crustaceans, finfish, mollusks, and other similar creatures in a controlled environment using brackish or marine water.(31) Marine seawater--Water that is derived from the Gulf of Mexico.(32) Mining use--The use of water for mining processes including hydraulic use, drilling, washing sand and gravel, and oil field repressuring.(33) Municipal per capita water use--The sum total of water diverted into a water supply system for residential, commercial, and public and institutional uses divided by actual population served.(34) Municipal use--(A) The use of potable water within a community or municipality and its environs for domestic, recreational, commercial, or industrial purposes or for the watering of golf courses, parks and parkways, other public or recreational spaces; or(B) the use of reclaimed water in lieu of potable water for the preceding purposes; or(C) the use of return flows authorized pursuant to Texas Water Code, §11.042, in lieu of potable water for the preceding purposes. Return flows used for human consumption as defined in §290.38(34) of this title (relating to Definitions) must be of a quality suitable for the authorized beneficial use as may be required by applicable commission rules; or(D) the application of municipal sewage effluent on land, under a Texas Water Code, Chapter 26, permit where:(i) the application site is land owned or leased by the Chapter 26 permit holder; or(ii) the application site is within an area for which the commission has adopted a no-discharge rule.(35) Navigable stream--By law, Texas Natural Resources Code, §21.001(3), any stream or streambed as long as it maintains from its mouth upstream an average width of 30 feet or more, at which point it becomes statutorily nonnavigable.(36) Nursery grower--A person engaged in the practice of floriculture, viticulture, silviculture, and horticulture, including the cultivation of plants in containers or nonsoil media, who grows more than 50% of the products that the person either sells or leases, regardless of the variety sold, leased, or grown. For the purpose of this definition, grow means the actual cultivation or propagation of the product beyond the mere holding or maintaining of the item prior to sale or lease and typically includes activities associated with the production or multiplying of stock such as the development of new plants from cuttings, grafts, plugs, or seedlings.(37) One-hundred-year flood--The flood peak discharge of a stream, based upon statistical data, which would have a 1.0% chance of occurring in any given year.(38) Permit--The authorization by the commission to a person whose application for a permit has been granted. A permit also means any water right issued, amended, or otherwise administered by the commission unless the context clearly indicates that the water right being referenced is being limited to a certificate of adjudication, certified filing, or unadjudicated claim.(39) Pollution--The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of any water in the state that renders the water harmful or detrimental to humans, animal life, vegetation, or property, or the public health, safety or welfare, or impairs the usefulness of the public enjoyment of the waters for any lawful or reasonable purpose.(40) Priority--As between appropriators, the first in time is the first in right, Texas Water Code, §11.027, unless determined otherwise by an appropriate court or state law.(41) Reclaimed water--Municipal or industrial wastewater or process water that is under the direct control of the treatment plant owner/operator, or agricultural tailwater that has been collected for reuse, and which has been treated to a quality suitable for the authorized beneficial use.(42) Recreational use--The use of water impounded in or diverted or released from a reservoir or watercourse for fishing, swimming, water skiing, boating, hunting, and other forms of water recreation, including aquatic and wildlife enjoyment, and aesthetic land enhancement of a subdivision, golf course, or similar development.(43) Register--The Texas Register. (44) Reservoir system operations--The coordinated operation of more than one reservoir or a reservoir in combination with a direct diversion facility in order to optimize available water supplies.(45) Return water or return flow--That portion of state water diverted from a water supply and beneficially used which is not consumed as a consequence of that use and returns to a watercourse. Return flow includes sewage effluent.(46) Reuse--The authorized use for one or more beneficial purposes of use of water that remains unconsumed after the water is used for the original purpose of use and before that water is either disposed of or discharged or otherwise allowed to flow into a watercourse, lake, or other body of state-owned water.(47) River basin--A river or coastal basin designated by the Texas Water Development Board as a river basin under Texas Water Code, §16.051. The term does not include waters originating in bays or arms of the Gulf of Mexico.(48) Runoff--That portion of streamflow comprised of surface drainage or rainwater from land or other surfaces during or immediately following a rainfall.(49) Secondary use--The reuse of state water for a purpose after the original, authorized use.(50) Sewage or sewage effluent--Water-carried human or animal wastes from residences, buildings, industrial establishments, cities, towns, or other places, together with any groundwater infiltration and surface waters with which it may be commingled.(51) Spreader dam--A levee-type embankment placed on alluvial fans or within a flood plain of a watercourse, common to land use practices, for the purpose of overland spreading of diffused waters and overbank flows.(52) State water--The water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake, and of every bay or arm of the Gulf of Mexico, and the stormwater, floodwater, and rainwater of every river, natural stream, and watercourse in the state. State water also includes water which is imported from any source outside the boundaries of the state for use in the state and which is transported through the beds and banks of any navigable stream within the state or by utilizing any facilities owned or operated by the state. State water does not include percolating groundwater; nor does it include diffuse surface rainfall runoff, groundwater seepage, or springwater before it reaches a watercourse.(53) Stormwater or floodwater--Water flowing in a watercourse as the result of recent rainfall.(54) Streamflow--The water flowing within a watercourse.(55) Surplus water--Water taken from any source in excess of the initial or continued beneficial use of the appropriator for the purpose or purposes authorized by law. Water that is recirculated within a reservoir for cooling purposes shall not be considered to be surplus water.(56) Unappropriated water--The amount of state water remaining in a watercourse or other source of supply after taking into account complete satisfaction of all existing water rights valued at their full authorized amounts and conditions.(57) Underflow of a stream--Water in sand, soil, and gravel below the bed of the watercourse, together with the water in the lateral extensions of the water-bearing material on each side of the surface channel, such that the surface flows are in contact with the subsurface flows, the latter flows being confined within a space reasonably defined and having a direction corresponding to that of the surface flow.(58) Waste--The diversion of water if the water is not used for a beneficial purpose; the use of that amount of water in excess of that which is economically reasonable for an authorized purpose when reasonable intelligence and reasonable diligence are used in applying the water to that purpose. Waste may include, but not be limited to, the unreasonable loss of water through faulty design or negligent operation of a water delivery, distribution or application system, or the diversion or use of water in any manner that causes or threatens to cause pollution of water. Waste does not include the beneficial use of water where the water may become polluted because of the nature of its use, such as domestic or residential use, but is subsequently treated in accordance with all applicable rules and standards prior to its discharge into or adjacent to water in the state so that it may be subsequently beneficially used.(59) Water conservation plan--A strategy or combination of strategies for reducing the volume of water withdrawn from a water supply source, for preventing or reducing the loss or waste of water, for maintaining or improving the efficiency in the use of water, for increasing the recycling and reuse of water, and for preventing the pollution of water. A water conservation plan may be a separate planning document or may be contained within another water management document(s). (60) Water in the state--Groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Gulf of Mexico inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.(61) Watercourse--A definite channel of a stream in which water flows within a defined bed and banks, originating from a definite source or sources. (The water may flow continuously or intermittently, and if the latter with some degree of regularity, depending on the characteristics of the sources.)(62) Water right--A right or any amendment thereto acquired under the laws of this state to impound, divert, store, convey, take, or use state water.(63) Watershed--A term used to designate the area drained by a stream and its tributaries, or the drainage area upstream from a specified point on a stream.(64) Water supply--Any body of water, whether static or moving, either on or under the surface of the ground, available for beneficial use on a reasonably dependable basis.(65) Wetland--An area (including a swamp, marsh, bog, prairie pothole, playa, or similar area) having a predominance of hydric soils that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support and that under normal circumstances supports the growth and regeneration of hydrophytic vegetation. The term "hydric soil" means soil that, in its undrained condition is saturated, flooded, or ponded long enough during a growing season to develop an anaerobic condition that supports the growth and regeneration of hydrophytic vegetation. The term "hydrophytic vegetation" means a plant growing in water or a substrate that is at least periodically deficient in oxygen during a growing season as a result of excessive water content. The term "wetland" does not include:(A) irrigated acreage used as farmland;(B) man-made wetlands of less than one acre; or(C) man-made wetlands not constructed with wetland creation as a stated objective, including, but not limited to, impoundments made for the purpose of soil and water conservation which have been approved or requested by soil and water conservation districts. This definition does not apply to man-made wetlands described under this subparagraph constructed or created on or after August 28, 1989. If this definition conflicts with the federal definition in any manner, the federal definition prevails.</content><note type="source"><p>Source Note: The provisions of this §297.1 adopted to be effective May 29, 1986, 11 TexReg 2327; amended to be effective December 16, 1987, 12 TexReg 4531; amended to be effective June 25, 1990, 15 TexReg 3415; amended to be effective May 3, 1993, 18 TexReg 2558; amended to be effective June 28, 1996, 21 TexReg 5442; amended to be effective January 10, 1997, 22 TexReg 57; amended to be effective February 24, 1999, 24 TexReg 1162; amended to be effective August 15, 2002, 27 TexReg 7152; amended to be effective August 30, 2012, 37 TexReg 6627; amended to be effective July 11, 2013, 38 TexReg 4377; amended to be effective May 19, 2016, 41 TexReg 3511;amended to be effective May 28, 2020, 45 TexReg 3452.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scA/s297.2"><num value="297.2">§297.2</num><heading>Water-in-Transit in the Rio Grande</heading><content>This chapter only applies to applications for water-in-transit in the Rio Grande to the extent that the rules for water-in-transit applications in the Rio Grande in Chapter 303 of this title (relating to Operation of the Rio Grande) do not govern or do not expressly conflict with this chapter. The applicable rules for water-in-transit in the Rio Grande are in Chapter 303 of this title.</content><note type="source"><p>Source Note: The provisions of this §297.2 adopted to be effective October 26, 2006, 31 TexReg 8714.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c297/scB"><num value="B">SUBCHAPTER B</num><heading>CLASSES OF WATER RIGHTS</heading><section identifier="/us/state/tx/tac/t30/p1/c297/scB/s297.11"><num value="297.11">§297.11</num><heading>General Authorization to Divert, Store or Use State Water,Texas Water Code, §11.121</heading><content>Except as provided under Texas Water Code §§11.142, 11.1421 and 11.1422 , no person may divert, store, impound, take or use water or begin construction of any work designed for the storage, taking, or diversion of water without first obtaining a water right. Such authorization may be with or without a term, on an annual or seasonal basis, or on a temporary or emergency basis as provided by this chapter.</content><note type="source"><p>Source Note: The provisions of this §297.11 adopted to be effective May 29, 1986, 11 TexReg 2330; amended to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scB/s297.12"><num value="297.12">§297.12</num><heading>Seasonal Permit under the Texas Water Code, §11.137</heading><content>A seasonal permit limits the diversion of state water to the portion or portions of the calendar year stated in the permit. (This type of permit is usually granted where irrigation is desired for seasonal crops or where the applicant proposes to appropriate water to fill an off-channel reservoir during the wet season for later use.)</content><note type="source"><p>Source Note: The provisions of this §297.12 adopted to be effective May 29, 1986, 11 TexReg 2330.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scB/s297.13"><num value="297.13">§297.13</num><heading>Temporary Permit under the Texas Water Code, §11.138</heading><content>(a) A commissioner may authorize temporary permits under this section for beneficial purposes to the extent that they do not interfere with or adversely affect prior appropriations or vested rights on a stream from which water is to be diverted under such temporary water rights or environmental flow needs. A temporary permit is primarily designed for those persons who require state water for highway construction, oil or gas well drilling projects, hydro-static tests for pipelines, and other types of short duration projects.(b) A temporary permit may not be granted for a period of time exceeding three years and shall be junior to all affected prior appropriations and vested rights on a stream. This permit does not vest in the holder any permanent right to the use of state water and expires in accordance with its terms and may be suspended upon notice by the executive director or watermaster, as applicable, in order to protect senior water rights. The permit may also have conditions for the protection of instream uses, water quality, aquatic and wildlife habitat, and freshwater inflows to bays and estuaries.(c) The period of time to use water authorized by a temporary permit which was initially granted for a period of less than three years may be extended by the commission upon written request by the permittee, but in no event shall the entire period including the initial period as well as any extension exceed three years nor shall an extension of time seek a change of diversion rate, diversion point, or additional water.(d) A temporary permit for the use of ten acre-feet or less for a period of one calendar year or less may be authorized without notice and hearing upon the 30th day after a registration and fee as provided by §295.132 of this title (relating to Filing, Recording, and Notice Fees) is filed with the TCEQ regional director or the watermaster, as applicable, unless the applicant is notified by the regional director or watermaster within the thirty day period that the registration is denied for failure to meet the requirements of this section. The registration must contain a sworn statement by the applicant containing the following minimum information:(1) the name, mailing address and telephone number of the applicant;(2) the diversion point and location of use as indicated on a United States Geological Survey 7.5 minute map(s);(3) the purpose of use, as authorized under Texas Water Code, §11.023;(4) the proposed maximum diversion rate;(5) amount of water to be diverted not to exceed ten acre-feet per year; and(6) the period for which the water is to be used, not to exceed one year from the 30th day from the date the registration is filed with the TCEQ regional director or watermaster, as applicable.</content><note type="source"><p>Source Note: The provisions of this §297.13 adopted to be effective May 30, 1986, 11 TexReg 2330; amended to be effective June 28, 1996, 21 TexReg 5442; amended to be effective February 24, 1999, 24 TexReg 1162; amended to be effective May 19, 2016, 41 TexReg 3511.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scB/s297.14"><num value="297.14">§297.14</num><heading>Contractual Permit</heading><content>A contractual permit authorizes the use of state water where the source of supply is water lawfully authorized for the use of another person and a written agreement has been entered into with said person. The permit is for a period of time limited by the contract, and no permanent right is acquired by the holder. See Subchapter J of this chapter (relating to Water Supply Contracts and Amendments).</content><note type="source"><p>Source Note: The provisions of this §297.14 adopted to be effective May 30, 1986, 11 TexReg 2330; amended to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scB/s297.15"><num value="297.15">§297.15</num><heading>Permit For Use of Water from Exempt Dam or Reservoir for Nonexempt Purposes, Texas Water Code, §11.143</heading><content>A Texas Water Code (TWC), §11.143, permit authorizes anyone owning a dam or reservoir on the person's own property with normal storage of not more than 200 acre-feet of water for domestic and livestock purposes or wildlife management purposes, to take state water therefrom for any lawful purpose authorized in the permit. (A permit is not required to use water from such a reservoir for domestic and livestock or wildlife management purposes.) Reservoirs on navigable streams are not exempt under TWC, §11.142. Application requirements and procedures are less detailed than those required for TWC, §11.121, permits. It may be permanent in nature, seasonal, or granted for a term of years. The owner of an exempt impoundment under TWC, §11.142, who subsequently desires to use state water therefrom for other than domestic and livestock, or wildlife management purposes may elect to apply for a permit under TWC, §11.143, or proceed under the provisions of TWC, §11.124, et seq.</content><note type="source"><p>Source Note: The provisions of this §297.15 adopted to be effective May 29, 1986, 11 TexReg 2330; amended to be effective February 24, 1999, 24 TexReg 1162; amended to be effective August 15, 2002, 27 TexReg 7152.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scB/s297.16"><num value="297.16">§297.16</num><heading>Conveyance of Water Down Bed and Banks</heading><content>(a) A person who wishes to discharge treated wastewater derived from privately owned groundwater into a stream or other state watercourse and then subsequently divert and reuse such water must obtain prior authorization from the commission for the discharge, conveyance and diversion of this water. The authorization may allow for the diversion by the discharger of existing discharges, less carriage losses, and shall be subject to special conditions if necessary to protect an existing water right that was granted based on the use or availability of these discharges. Special conditions may also be included in the permit to help maintain instream uses and freshwater inflows to bays and estuaries. A person wishing to divert and reuse future increases of discharged wastewater derived from privately owned groundwater must obtain authorization to divert and reuse such increases in discharges before the increase occurs.(b) Except as provided by Subchapter I of this chapter (relating to Conveying Stored Water) for the conveyance of stored or conserved water, a person who wishes to convey and subsequently divert water in a watercourse or stream must obtain the prior approval of the commission through a bed and banks authorization. The authorization shall allow to be diverted only the amount of water put into a watercourse or stream, less carriage losses and subject to any special conditions that may address the impact of the discharge, conveyance, and diversion on existing water rights, instream uses, and freshwater inflows to bays and estuaries.(c) Water discharged into a watercourse or stream under this section shall not cause a degradation of water quality as provided by §307.5 of this title (relating to Antidegradation). Authorizations under this section and water quality authorizations may be approved in a consolidated permit proceeding. Nothing in this chapter affects the obligation to obtain and comply with a permit under Texas Water Code, Chapter 26 or other applicable law.(d) With prior authorization, a person, association of persons, corporation, water control and improvement district, or irrigation district supplying water imported from a source located wholly outside the boundaries of this state, except water imported from a source located in the United Mexican States, may use the bed and banks of any flowing natural stream in the state to convey water for use in this state. The authorization must:(1) allow for the diversion of only the amount of water put into a watercourse or stream, less carriage losses; and(2) include special conditions adequate to prevent a significant impact to the quality of water in this state.(e) Authorizations under subsection (d) of this section are not subject to the requirements of subsections (a) - (c) of this section.(f) Nothing in this section shall be construed to affect an existing project for which water rights and reuse authorizations have been granted by the commission before September 1, 1997.</content><note type="source"><p>Source Note: The provisions of this §297.16 adopted to be effective February 24, 1999, 24 TexReg 1162; amended to be effective May 6, 2010, 35 TexReg 3504.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scB/s297.17"><num value="297.17">§297.17</num><heading>Emergency Authorization (Texas Water Code, §11.139)</heading><content>(a) An authorization under this section may be for an emergency appropriation of water or the emergency use of water appropriated by someone other than the applicant.(b) An emergency authorization provides for the use of state water for an initial period of not more than 120 days if the commission finds emergency conditions to exist which present an imminent threat to the public health and safety and which override the necessity to comply with established statutory procedures and there are no feasible, practicable alternatives to the emergency authorization. Such emergency action may be renewed once for not longer than 60 days. Feasible, practicable alternatives include, but are not limited to, the implementation of water conservation and drought contingency measures or the purchase of water or water rights at a reasonable and affordable price to the applicant.(c) If the commission finds the applicant's statements required under §295.91 of this title (relating to Application for Emergency Authorization) to be correct, the commission may grant the emergency authorization after notice has been provided in accordance with §295.156 of this title (relating to Notice for Emergency Water Use).(d) If the commission grants an emergency authorization under this section without a hearing, the authorization shall fix a time and place for a hearing to be held before the commission. The hearing shall be held as soon after the emergency authorization is granted as practicable but not later than 20 days after the emergency authorization is granted.(e) At the hearing, the commission shall affirm, modify, or set aside the emergency authorization. Any hearing on an emergency authorization shall be conducted in accordance with Chapter 2001, Government Code, and rules of the commission. Additionally, in the case of an emergency transfer of water, the commission shall also issue an order notifying water right holders from which the water is being transferred of the emergency transfer and directing them to limit the exercise of their water rights to the extent necessary to provide for the emergency transfer of water.(f) If an imminent threat to the public health and safety exists which requires emergency action before the commission can take action as provided by subsections (c) - (e) of this section and there are no feasible alternatives, the executive director may grant an emergency authorization after notice to the governor. If the executive director issues an emergency authorization under this subsection, the commission shall hold a hearing as provided by subsections (d) and (e) of this section. The application requirements of §295.91 of this title (relating to Application for Emergency Authorization) must be satisfied before action is taken by the executive director on the request for emergency authorization.(g) The commission or executive director may grant an emergency authorization under this section for the temporary transfer of all or part of a water right for other than domestic or municipal use to a retail or wholesale water supplier for public health and safety purposes.(h) The commission or executive director may direct the applicant to timely pay the amounts for which the applicant may be potentially liable under subsections (k) and (l) of this section and to the extent authorized by law will fully indemnify and hold harmless the state, the executive director, and the commission from any and all liability for the authorization sought. The commission or the executive director may also order bond or other surety in a form acceptable to the commission or the executive director as a condition for such emergency authorization.(i) It shall be a condition of granting an emergency authorization under this section that the applicant develop and implement water conservation and drought contingency plans meeting applicable requirements of Chapter 288 of this title (relating to Water Conservation Plans, Drought Contingency Plans and Guidelines and Requirements), unless the applicant has already done so.(j) The commission or executive director will not grant an emergency authorization under this section which would cause a violation of a federal regulation.(k) Before considering an emergency transfer of water, the commission or executive director shall first determine whether there is sufficient available unappropriated water to meet the emergency needs of the applicant as provided under Texas Water Code §11.1381 and, if so, make the applicant aware of this option. In transferring the amount of the water requested by the applicant, the executive director or the commission shall allocate the requested amount among two or more water rights for other than domestic or municipal use. In determining the water rights from which the water will be transferred, the commission shall be guided by the applicable approved regional water plan and statutory preferences of use provided by Texas Water Code, §11.024, and shall also look first to water rights that are unperfected or are not otherwise being used and for which the transfer would not jeopardize existing financial commitments made for the water to be transferred. Nothing in this section is intended to limit a person from demonstrating that the person is an affected person for the purposes of this section.(l) The person granted an emergency transfer authorization under this section is liable to the affected water right holder and the holder's agent or lessee from whom the use is transferred for the fair market value of the water transferred as well as for any damages caused by the transfer of use. If within 60 days of the termination of the authorization, the parties do not agree on the amount due, or if full payment is not made, either party may file a complaint with the commission to determine the amount due. The commission shall use dispute resolution procedures provided under Chapter 40 of this title (relating to Alternative Dispute Resolution Procedure) for a complaint filed under this subsection. Fair market value shall be determined by the amount of money that a willing buyer would pay a willing seller, neither of which is under any compulsion to buy or sell, for the water in an arms- length transaction and shall not be limited to the amount of money that the owner of the water right has paid or is paying for the water.(m) The commission designation of affected water right holders under this section does not preclude other water right holders from establishing the impact by the transfer to them through commission proceedings or other appropriate legal means.(n) After exhausting all administrative remedies under subsections (l) and (m) of this section, a water right holder from which the use is transferred may file suit to recover or determine the amount due in state district court in the county where the owner resides or has its headquarters. The prevailing party in a suit filed under this subsection is entitled to recover court costs and reasonable attorneys fees.(o) An emergency authorization does not vest in the grantee any continuing right to the diversion, impoundment or use of water and shall expire and be canceled in accordance with its terms. An emergency transfer authorization may be suspended upon notice, as applicable, in order to protect senior water rights. An emergency transfer authorization shall comply with the conditions contained in the water right or rights for which the water is being transferred, including any conditions to protect environmental flow needs.</content><note type="source"><p>Source Note: The provisions of this §297.17 adopted to be effective May 29, 1986, 11 TexReg 2330; amended to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scB/s297.18"><num value="297.18">§297.18</num><heading>Interbasin Transfers, Texas Water Code, §11.085</heading><content>(a) No person may take or divert any state water from a river basin and transfer such water to any other river basin without first applying for and receiving a water right or an amendment to a water right authorizing the transfer.(b) An increase in the authorized amount of water being transferred to the receiving basin under an existing water right constitutes a new interbasin transfer for purposes of this section.(c) In addition to the other requirements of this chapter relating to the review of and action on an application for a new or amended water right, the commission shall weigh the effects of the proposed transfer by considering:(1) the need for the water in the basin of origin and in the proposed receiving basin based on the period for which the water supply is requested, but not to exceed 50 years;(2) factors identified in the applicable approved regional water plans which address the following:(A) the availability of feasible and practicable alternative supplies in the receiving basin to the water proposed for transfer;(B) the amount and purposes of use in the receiving basin for which the water is needed;(C) proposed methods and efforts by the receiving basin to avoid waste and implement water conservation and drought contingency measures;(D) proposed methods and efforts by the receiving basin to put the water proposed for transfer to beneficial use;(E) the projected economic impact that is reasonably expected to occur in each basin as a result of the transfer; and(F) the projected impacts of the proposed transfer that are reasonably expected to occur on existing water rights, instream uses, water quality, aquatic and riparian habitat, and bays and estuaries in each basin. If the water sought to be transferred is currently authorized to be used under an existing water right in the basin of origin, such impacts shall only be considered in relation to that portion of the water right proposed for transfer and shall be based on the historical uses of the water right for which amendment is sought.(3) proposed mitigation or compensation, if any, to the basin of origin by the applicant;(4) the continued need to use the water for the purposes authorized under the existing water right if an amendment to an existing water right is sought;(5) comments received from county judges required to be provided notice of the application as provided by §297.17 of this title (relating to Emergency Authorization (Texas Water Code, §11.139)); and(6) information required to be submitted by the applicant.(d) The commission may grant, in whole or in part, an application for an interbasin transfer only to the extent that:(1) the detriments to the basin of origin during the proposed transfer period are less than the benefits to the receiving basin during the proposed transfer period, as determined by the commission based on consideration of the factors described by subsection (c)(1) - (4) and (6) of this section; and(2) the applicant for the interbasin transfer has prepared drought contingency and water conservation plans meeting the requirements of Chapter 288 of this title (relating to Water Conservation Plans, Drought Contingency Plans, Guidelines and Requirements) and has implemented a water conservation plan that will result in the highest practicable levels of water conservation and efficiency achievable within the jurisdiction of the applicant.(e) The commission may grant new or amended water rights under this section with or without specific terms or periods of use and with specific conditions under which a transfer of water may occur.(f) If an interbasin transfer of water is based on a contractual sale of water, the new or amended water right authorizing the transfer shall contain a condition for a term or period not greater than the term of the contract, including any extension or renewal of the contract.(g) The parties to a contract for an interbasin transfer of water may include provisions for compensation and mitigation. If the party from the basin of origin is a governmental entity, each county judge located in whole or in part in the basin of origin may provide comment on the appropriate compensation and mitigation for the interbasin transfer.(h) A new water right or amendment to an existing water right for a proposed interbasin transfer of water is junior in priority to water rights in the basin of origin granted before the time an administratively complete application for the transfer is filed with the chief clerk in accordance with §281.17 of this title (relating to Notice of Receipt of Application and Declaration of Administrative Completeness). If an amendment is made to the water right to effectuate an interbasin transfer of water for a term, the affected portion of the water right shall be junior to all existing water rights in the basin of origin only for the term of the amendment.(i) A new water right or amendment to an existing water right for a transfer of water from a river basin in which two or more river authorities or water districts have written agreements or permits that provide for the coordinated operation of their respective reservoirs to maximize the amount of water for beneficial use within their respective water service areas shall be junior in priority to water rights granted in that basin before the time an administratively complete application for the interbasin transfer is filed with the chief clerk in accordance with §281.17 of this title. If an amendment is made to the water right to effectuate an interbasin transfer of water for a term, the affected portion of the water right shall be junior to all existing water rights in the basin of origin only for the term of the amendment.(j) An appropriator of water for municipal purposes in the basin of origin may, at the appropriator's option, be a party in any hearings under this section. Nothing in this provision shall be construed as adversely affecting the ability of any other potentially affected person to obtain party status.(k) The provisions that are contained in subsections (b) - (j) of this section that are in addition to those generally required for an application for a new or amended water right do not apply to:(1) a proposed transfer which in combination with any existing transfers totals less than 3,000 acre-feet of water per annum from the same water right;(2) a request for an emergency transfer of water as provided by §297.17 of this title;(3) a proposed transfer from a basin to its adjoining coastal basin;(4) a proposed transfer of water that is:(A) imported from a source located wholly outside the boundaries of this state; except water that is imported from a source located in the United Mexican States;(B) for use in this state; and(C) transported by using the bed and banks of any flowing natural stream in this state; or(5) a proposed transfer from the part of the geographic area of a county or municipality, or the part of the retail service area of a retail public utility as defined by Texas Water Code, §13.002, that is within the basin of origin for use in the part of the geographic area of the county or municipality, or that contiguous part of the retail service area of the utility, not within the basin of origin. The further transfer and use of this water outside of such county, municipality, or the part of the retail service area of a retail public utility as defined by Texas Water Code, §13.002 as existing at the time of the transfer or as may exist in the future other than back to the basin of origin shall not be exempt under this paragraph.</content><note type="source"><p>Source Note: The provisions of this §297.18 adopted to be effective May 29, 1986, 11 TexReg 2330; amended to be effective February 24, 1999, 24 TexReg 1162; amended to be effective August 15, 2002, 27 TexReg 7152; amended to be effective May 6, 2010, 35 TexReg 3504; amended to be effective August 28, 2014, 39 TexReg 6494.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scB/s297.19"><num value="297.19">§297.19</num><heading>Term Permit under Texas Water Code, §11.1381</heading><content>(a) The commission may issue a permit for a term of years for the use of unused appropriated water when there is insufficient unappropriated water in the source of supply to satisfy the application.(b) An application for a term permit under this section shall be denied if:(1) the commission finds there is a substantial likelihood that the issuance of the term permit will jeopardize financial commitments made for water projects that have been built or that are being built to optimally develop the water resources in the area;(2) if the holder of an affected unused appropriation can demonstrate that the issuance of the permit would prohibit the holder from beneficially using the water right during the term of the permit. Such demonstration may be made by using water use projections contained in the state or regional water plans, economic indicators, population growth projections, electrical generation needs, or other reasonable projections based on accepted methods;(3) the proposed permit is not intended for a beneficial use; or(4) the proposed permit would be detrimental to the public welfare.(c) A term permit is subordinate to any vested or senior appropriative water right. Additionally, conditions may be placed in the permit as necessary to protect instream uses and freshwater inflows to bays and estuaries.</content><note type="source"><p>Source Note: The provisions of this §297.19 adopted to be effective May 29, 1986, 11 TexReg 2330; amended to be effective June 28, 1996, 21 TexReg 5442; amended to be effective February 24, 1999, 24 TexReg 1162; amended to be effective May 19, 2016, 41 TexReg 3511.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c297/scC"><num value="C">SUBCHAPTER C</num><heading>USE EXEMPT FROM PERMITTING</heading><section identifier="/us/state/tx/tac/t30/p1/c297/scC/s297.21"><num value="297.21">§297.21</num><heading>Domestic and Livestock and Wildlife Permit Exemptions</heading><content>(a) In accordance with Texas Water Code (TWC), §11.303(l), a person may directly divert and use water from a stream or watercourse for domestic and livestock purposes on land owned by the person and that is adjacent to the stream without obtaining a permit. Manner of diversion may be by pumping or by gravity flow. Such riparian domestic and livestock use is a vested right that predates the prior appropriation system in Texas and is superior to appropriative rights. A vested riparian right is only to the normal flow in the stream, not to the storm water, floodwater, or authorized releases from storage for downstream use.(b) In accordance with TWC, §11.142, a person may construct on the person's own property a dam or reservoir with a normal storage of not more than 200 acre-feet of state water for domestic and livestock purposes without obtaining a permit. The reservoir may be on-channel, adjacent to the stream, or on a contiguous piece of property through which flows the stream from which the water is diverted. For purposes of this subsection, normal storage means the conservation storage of the reservoir, i.e., the amount of water the reservoir may hold before water is released uncontrolled through a spillway or into a standpipe. A person who temporarily stores more than 200 acre-feet of water in a dam or reservoir having a normal storage of greater than 200 acre-feet is not required to obtain a permit for the dam or reservoir if the person can demonstrate through reservoir capacity data and monthly reservoir water level records maintained by the owner that the person has not stored in the dam or reservoir more than 200 acre-feet of state water on average in any 12-month cycle. Selection of the 12-month cycle shall be at the owner's discretion, but must be consistent from year to year. This exemption does not apply to a commercial operation. Use of land for livestock purposes is not a commercial operation. This domestic and livestock exemption is not available to owners or property sold by a municipality having a population of 250,000 or less and owning land within 5,000 feet of where the shoreline of a lake would be if the lake were filled to its storage capacity, if the property was sold without notice or the solicitation of bids to the person leasing the land, in accordance with Local Government Code, §272.001(h).(c) A dam constructed in accordance with subsection (b) of this section may not be located on a navigable stream.(d) The use of a reservoir by free-ranging wild game and fur-bearing animals that may be harvested by hunters and trappers who pay a fee or other compensation to hunt or trap on the property does not constitute a use for which a permit must be obtained for an otherwise exempt domestic and livestock reservoir. Additionally, the use of water that is used in making products from a family garden or orchard that are traded with a neighbor or used in a local bake sale or potluck dinner does not constitute a use for which a permit must be obtained for an otherwise exempt domestic and livestock reservoir.(e) In accordance with TWC, §11.142(b), a person may construct on the person's property a dam or reservoir with normal storage of not more than 200 acre-feet of water for wildlife management as defined in Texas Tax Code (TTC), §23.51(7), and for fish management purposes, excluding aquaculture or fish farming purposes, if the property on which the dam or reservoir will be constructed is qualified open-space land, as defined by TTC, §23.51. For purposes of this subsection, normal storage means the conservation storage of the reservoir, i.e., the amount of water the reservoir may hold before water is released uncontrolled through a spillway or into a standpipe. This exemption does not apply to a commercial operation. For the purposes of this subsection, commercial operation means the use of land for industrial facilities, industrial parks, aquaculture facilities, fish farming facilities, or housing developments. The incidental use of the reservoir in a manner that does not remove the land from the definition of qualified open-space land as defined by TTC, §23.51, including using a photograph in advertising, does not constitute a use for which a permit must be obtained for an otherwise exempt reservoir.</content><note type="source"><p>Source Note: The provisions of this §297.21 adopted to be effective February 24, 1999, 24 TexReg 1162; amended to be effective September 13, 2000, 25 TexReg 8969; amended to be effective August 15, 2002, 27 TexReg 7152.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scC/s297.22"><num value="297.22">§297.22</num><heading>Storage in Another's Reservoir</heading><content>A permit is required to appropriate state water for storage in another's lawful reservoir and to divert and use water therefrom. Consent of the reservoir owner must be obtained in writing and provided to the executive director. If the reservoir is a project of the Natural Resources Conservation Service, U. S. Department of Agriculture, consent must be obtained from the local, sponsoring Soil and Water Conservation District or any others having jurisdiction over the reservoir before a permit can be acquired.</content><note type="source"><p>Source Note: The provisions of this §297.22 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scC/s297.23"><num value="297.23">§297.23</num><heading>Spreader Dams, Contouring, Terracing</heading><content>No permit shall be required to construct or maintain any system of contouring, terracing, spreader dams or other such practices designed to make maximum beneficial use of diffused surface water and overbank flooding and to implement any generally accepted conservation practices necessary to prevent or reduce erosion on one's own property.</content><note type="source"><p>Source Note: The provisions of this §297.23 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scC/s297.24"><num value="297.24">§297.24</num><heading>Permit Exemption for Mariculture Activities</heading><content>(a) Without obtaining a permit from the commission, a person engaged in mariculture activities on land may take an appropriate amount of water from the Gulf of Mexico or adjacent bays and arms of the Gulf of Mexico for that purpose if:(1) prior to the first taking of water, the person gives notice to the commission of the proposed appropriation including:(A) the name and address of the person(s);(B) the location of the project;(C) the name of the water source;(D) the maximum annual amount of water to be appropriated and the basis for calculating the amount needed; and(E) the month and year of the first appropriation.(2) the person submits annual water use reports as required by §295.202 of this title (relating to Reports).(b) After notice and hearing, if the commission determines that low freshwater inflows resulting from an appropriation authorized under subsection (a) of this section are interfering with natural productivity of bays and estuaries, the commission shall issue an order requiring interruption or reduction of the use of water under this section.</content><note type="source"><p>Source Note: The provisions of this §297.24 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scC/s297.25"><num value="297.25">§297.25</num><heading>Permit Exemption for Drilling and Producing of Petroleum</heading><content>Without obtaining a water use permit from the commission, a person engaged in drilling for petroleum, or producing petroleum, may take for those purposes not to exceed one acre-foot of water per 24-hour period from the Gulf of Mexico or from the adjacent bays and arms of the Gulf of Mexico. A person using water for such purposes is not required to file water use reports.</content><note type="source"><p>Source Note: The provisions of this §297.25 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scC/s297.26"><num value="297.26">§297.26</num><heading>Permit Exemption to Use State Water for Fire and Emergency Use</heading><content>Without obtaining a permit from the commission, county and rural community fire departments and other emergency service providers may divert and use state water from streams and reservoirs, including exempt domestic and livestock reservoirs for fire and emergency purposes. Emergency purposes under this rule include use of water to fight fires, manage chemical spills, and as needed to deal with emergency public welfare concerns. Emergency purposes does not include domestic, livestock or other purposes defined by §297.1 of this title (relating to Definitions). Rural emergency service providers (entities) may also establish "Dry Hydrant" installations in streams and reservoirs, including exempt reservoirs. Dry hydrant installations shall be exempt from permitting requirements provided that:(1) Hydrant locations are identified and documented by the installing entities and the entities file these identification codes and location descriptions with the executive director within 120 days after completion of an installation;(2) Facilities installed before the adoption of this rule are documented within six months after the rule is adopted;(3) Ingress and egress authorizations are obtained from private property owners and/or public entities on whose property the installations are located;(4) Installations conform to design and installation requirements and guidelines recommended by the USDA, Natural Resources Conservation Service; and(5) Diversions from dry hydrant installations are reported to the executive director by the using entities within 60 days of use. Pump testing of facilities is not required to be reported.(A) Local offices of the USDA, Natural Resources Conservation Service can provide technical assistance and recommendations for installation of dry hydrant facilities.(B) Hydrant facilities which do not meet the above minimum requirements must be authorized by Water Code, §11.121 permits granted by the commission.</content><note type="source"><p>Source Note: The provisions of this §297.26 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scC/s297.27"><num value="297.27">§297.27</num><heading>Permit Exemptions for Use of State Water for Irrigation of Certain Historic Cemeteries and for Sedimentation Control Structures within Surface Coal Mining Operations</heading><content>(a) Permit Exemption for Use of State Water for Irrigation of Certain Historic Cemeteries.(1) Without obtaining a water use permit from the commission, a tax-exempt non-profit corporation that owns a cemetery may divert from a stream not more than 200 acre-feet of water each year to irrigate the grounds of the cemetery if the cemetery:(A) borders the stream; and(B) is more than 100 years old.(2) If the executive director, or a watermaster who has jurisdiction over the stream from which a cemetery diverts water under this section, determines that the diversion will harm a person downstream of the cemetery who acquired a water right before May 23, 1995, the executive director or the watermaster may order the cemetery to restrict the diversion to the extent and duration of the harm. The executive director may also request appropriate commission action.(3) Any person dissatisfied with the action taken by the executive director or the watermaster pursuant to paragraph (2) of this subsection may appeal to the commission for relief.(b) Permit Exemption to Use State Water for Sediment Control, Fire Suppression, or Dust Suppression Purposes within a Surface Coal Mining Operation. Without obtaining a permit from the commission, a person may construct or maintain a reservoir as part of a surface coal mining operation under Natural Resources Code, Chapter 134, if the water in the reservoir is used solely for:(1) sediment control; or(2) compliance with applicable laws, rules, or regulations relating to fire or dust suppression.</content><note type="source"><p>Source Note: The provisions of this §297.27 adopted to be effective February 24, 1999, 24 TexReg 1162; amended to be effective December 31, 2009, 34 TexReg 9457.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c297/scD"><num value="D">SUBCHAPTER D</num><heading>DIVERSION FROM UNSPONSORED OR STORAGE-LIMITED RESERVOIRS</heading><section identifier="/us/state/tx/tac/t30/p1/c297/scD/s297.31"><num value="297.31">§297.31</num><heading>Use Other Than Domestic or Livestock</heading><content>A person desiring to divert state water for other than domestic and livestock uses from a reservoir constructed by the federal government for which no local sponsor has been designated nor permit issued or a reservoir permitted for storage solely for the purpose of optimum development of the project shall make application for a permit pursuant to the Texas Water Code, §11.124.</content><note type="source"><p>Source Note: The provisions of this §297.31 adopted to be effective May 29, 1986, 11 TexReg 2330.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scD/s297.32"><num value="297.32">§297.32</num><heading>Domestic or Livestock Use</heading><content>A person seeking permission to use state water for domestic or livestock use from a reservoir constructed by the federal government for which no local sponsor has been designated nor permit issued or a reservoir permitted for storage solely for the purpose of optimum development of the project issued shall apply for authorization. If a request for domestic use is received, and upon investigation it is determined that an existing water supply system is reasonably available to the property, the request shall be denied. In considering the quantity of water to be used for domestic use, the commission will apply a standard of 125 gallons per capita per day unless persuasive reasons for a different daily allocation exist. See §295.81 of this title (relating to Application).</content><note type="source"><p>Source Note: The provisions of this §297.32 adopted to be effective May 29. 1986, 11 TexReg 2330.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c297/scE"><num value="E">SUBCHAPTER E</num><heading>ISSUANCE AND CONDITIONS OF WATER RIGHTS</heading><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.41"><num value="297.41">§297.41</num><heading>General Approval Criteria</heading><content>(a) Except as otherwise provided by this chapter, the commission shall grant an application for a water right only if:(1) the application conforms to the requirements prescribed by Chapter 295 of this title (relating to Water Rights, Procedural) and is accompanied by the prescribed fee;(2) unappropriated water is available in the source of supply;(3) the proposed appropriation:(A) is intended for a beneficial use;(B) does not impair existing water rights or vested riparian rights;(C) is not detrimental to the public welfare;(D) considers any applicable environmental flow standards established under Texas Water Code (TWC), §11.1471 and, if applicable, the assessments performed under TWC, §§11.147(d) and (e), and 11.150 - 11.152; and(E) addresses a water supply need in a manner that is consistent with the state water plan and the relevant approved regional water plan for any area in which the proposed appropriation is located, unless the commission determines that new, changed, or unaccounted for conditions warrant waiver of this requirement;(4) the applicant has provided evidence that reasonable diligence will be used to avoid waste and achieve water conservation as defined by §297.1 of this title (relating to Definitions); and(5) the applicant has completed and returned all Texas Water Development Board surveys of groundwater and surface water use required since September 1, 2001 under TWC, §16.012.(b) Beginning January 5, 2002, the commission will not issue a water right for municipal purposes in a region that does not have an approved regional water plan in accordance with TWC, §16.053(i) unless the commission determines that new, changed, or unaccounted for conditions warrant the waiver of this requirement.</content><note type="source"><p>Source Note: The provisions of this §297.41 adopted to be effective February 24, 1999, 24 TexReg 1162; amended to be effective September 13, 2000, 25 TexReg 8969; amended to be effective August 15, 2002, 27 TexReg 7152; amended to be effective May 28, 2020, 45 TexReg 3452.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.42"><num value="297.42">§297.42</num><heading>Water Availability</heading><content>(a) Except as provided by Texas Water Code (TWC), §11.1381, and §297.19 of this title (relating to Term Permit under Texas Water Code, §11.1381), an application for a new or increased appropriation will be denied unless there is a sufficient amount of unappropriated water available for a sufficient amount of the time to make the proposed project viable and ensure the beneficial use of water without waste.(b) A new water right may be conditioned as appropriate to protect any applicable environmental flow standards as described in Chapter 298 of this title (relating to Environmental Flow Standards for Surface Water), and, if applicable, instream uses, water quality, aquatic and wildlife habitat, and freshwater inflows to bays and estuaries as provided by TWC, §§11.147, 11.150, 11.152, and 16.059.(c) For the approval of an application for a direct diversion from a stream without sufficient on or off channel water storage facilities for irrigation, approximately 75% of the water requested must be available approximately 75% of the time when distributed on a monthly basis and based upon the available historic stream flow record. Lower availability percentages may be acceptable if the applicant can demonstrate that a long-term, reliable, alternative source or sources of water of sufficient quantity and quality are economically available to the applicant to make the proposed project viable and ensure the beneficial use of state water without waste.(d) Projects that are not required to be based upon the continuous availability of historic, normal stream flow include, but are not limited to: conjunctive ground and surface water management projects; diversions or impoundments at times of above-normal stream flow (e.g., "scalping" operations) for seasonal or supplemental use; a system operation in conjunction with other water rights; non-consumptive instream uses except for instream flows dedicated to environmental needs or inflows to the state's bay and estuary systems, pursuant to TWC, §11.0237(a); or other similar type projects. The required availability of unappropriated water for these special type projects shall be determined on a case-by-case basis based upon whether the proposed project can be viable for the intended purposes and the water will be beneficially used without waste.(e) New appropriations of water for recharge into an aquifer underlying this state, including aquifer recharge projects as defined by TWC, §27.201 or for storage in an aquifer storage and recovery project before the water is recovered for a beneficial use may be for water that is not continuously available. Water availability for the full amount of water requested for these types of projects must, at a minimum, be available at least one year in the period of record based on the commission's water availability model for the applicable river basin, and the proposed project must be viable for the intended purposes and the water must be beneficially used without waste.(f) New appropriations of water based on an increase in the amount of water diverted or the rate of diversion resulting from an evaporation credit under TWC, §11.158(c) may be for water that is not continuously available, as defined in subsection (e) of this section. Water availability for projects under this subsection that request an increase in the amount of water diverted or the rate of diversion from an on-channel reservoir that has not been constructed shall be based on the evaporation calculations that were used in developing the terms of the water right for which the amendment is sought and cannot exceed the maximum annual modeled evaporation as determined in the commission's water availability model for the applicable river basin.(g) The volume of water available for conversion of a water right that authorizes storage in a reservoir that has lost storage capacity because of sedimentation to storage as part of an aquifer storage and recovery project, as described in TWC, §11.158(d), does not have to be continuously available, as defined in subsection (e) of this section. The volume of water that can be converted to storage in an aquifer storage and recovery project under this subsection is limited to the lesser of:(1) the storage volume that is demonstrated to have been lost to sedimentation, as determined by a survey performed by the Texas Water Development Board; or(2) the volume of storage in the aquifer storage and recovery project that would restore the amount of previously authorized storage capacity lost to sedimentation.(h) For an application for an on-channel storage facility to be authorized for domestic or municipal water use, the proposed diversion right of the reservoir must be equal to its firm yield. The purpose of this limitation is to ensure a secure and dependable source of water supply for uses necessary to protect the public health, safety, and welfare (see also §290.41(b) of this title (relating to Water Sources) requiring public water systems to have a "safe" yield capable of supplying the maximum daily demands during extended periods of peak usage and "critical hydrologic conditions"). Such reservoir may be authorized in excess of its firm yield when the implementation of a drought management plan or alternative sources of water supply such as groundwater, other reservoir systems, or other means are available to satisfy water needs during drought periods when the reservoir's normal supply capabilities would be exceeded.(i) Except for an application for an emergency, temporary, seasonal, or term permit, or as provided by this section, the commission may require an applicant to provide storage sufficient to yield the requested annual diversion.(j) In order to make the optimum beneficial use of available water, a water right may be granted based upon the availability of return flows or discharges. However, a water right granted upon return flows or discharges that may cease in the future because of new or increased direct reuse (i.e., the lawful reuse of water before it is returned or discharged into the stream) or that may cease for other lawful reasons will be granted with the express provision that the water available for the water right is dependent upon potentially interruptible return flows or discharges.</content><note type="source"><p>Source Note: The provisions of this §297.42 adopted to be effective February 24, 1999, 24 TexReg 1162; amended to be effective August 15, 2002, 27 TexReg 7152; amended to be effective May 28, 2020, 45 TexReg 3452.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.43"><num value="297.43">§297.43</num><heading>Beneficial Uses</heading><content>(a) To the extent that State water has not been set aside by the commission under Texas Water Code (TWC), §11.1471(a)(2), to meet downstream instream flow needs or freshwater inflow needs, State water may be appropriated, stored, or diverted for the following purposes of use:(1) domestic and municipal;(2) industrial;(3) agriculture;(4) mining and the recovery of minerals;(5) hydroelectric power;(6) navigation;(7) recreation and pleasure;(8) public parks;(9) game preserves;(10) recharge into an aquifer underlying this state other than an aquifer described under subsection (b) of this section through surface infiltration or an aquifer recharge project as defined by TWC, §27.201; and(11) other beneficial purposes of use recognized by law.(b) Unappropriated storm water and floodwater may be appropriated to recharge freshwater bearing sands and aquifers in the portion of the Edwards Aquifer located within Kinney, Uvalde, Medina, Bexar, Comal, and Hays Counties if it can be established by expert testimony that an unreasonable loss of state water will not occur and that the water can be withdrawn at a later time for application to a beneficial use. The normal or ordinary flow of a stream or watercourse may never be appropriated, diverted, or used by a water right holder for this recharge purpose.(c) The amount of water appropriated for each purpose listed under this section shall be specifically appropriated for that purpose. The commission may authorize the appropriation of a single amount or volume of water for more than one purpose of use. In the event that a single amount or volume of water is appropriated for more than one purpose of use, the total amount of water actually diverted for all of the authorized purposes may not exceed the total amount of water appropriated.(d) State policy regarding preferences for certain type uses provided by Texas Water Code (TWC), §11.024, does not alter the basic principle of priority based upon first in time established under TWC, §11.027. Rather, such preferences will be used, in part, by the commission in determining which competing new uses will be granted water rights as provided by TWC, §11.123.(e) The water of any arm, inlet, or bay of the Gulf of Mexico may be changed from salt water to sweet or fresh water and held or stored by dams, dikes, or other structures and may be taken or diverted for any purpose authorized by this chapter.</content><note type="source"><p>Source Note: The provisions of this §297.43 adopted to be effective February 24, 1999, 24 TexReg 1162; amended to be effective August 15, 2002, 27 TexReg 7152; amended to be effective May 28, 2020, 45 TexReg 3452.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.44"><num value="297.44">§297.44</num><heading>Subject to Prior and Superior Water Rights</heading><content>(a) Except as provided by subsection (b) of this section, a certificate of adjudication, permit, certified filing or unadjudicated claim to appropriate state water is subject to all prior and vested riparian rights of others using water on the stream or other source of supply.(b) Except for water rights granted on the mainstem of the Rio Grande below the Amistad Reservoir (see, generally, Chapter 303 of this title relating to Operation of the Rio Grande) and certain uses exempt from permitting under Texas Water Code §§11.142, 11.1421 and 11.1422 (see, generally, Subchapter C of this Chapter), as between appropriators, first in time is first in right.(c) The time priority of an appropriation of water dates from the filing of the related application with the commission or as determined with a final decree in accordance with Texas Water Code §11.323. The application is considered filed after the application has been declared administratively complete in accordance with §281.17 of this title (relating to Notice of Receipt of Application and Declaration of Administrative Completeness) and filed with the chief clerk.</content><note type="source"><p>Source Note: The provisions of this §297.44 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.45"><num value="297.45">§297.45</num><heading>"No Injury" Rule</heading><content>(a) The granting of an application for a new water right or an amended water right shall not cause an adverse impact to an existing water right as provided by this section. An application for an amendment to a water right requesting an increase in the appropriative amount, a change in the point of diversion or return flow, an increase in the consumptive use of the water based upon a comparison between the full, legal exercise of the existing water right with the proposed amended right, an increase in the rate of diversion, or a change from the direct diversion of water to on-channel storage shall not be granted unless the commission determines that such amended water right shall not cause adverse impact to the uses of other appropriators. For the purposes of this section, adverse impact to another appropriator includes: the possibility of depriving an appropriator of the equivalent quantity or quality of water that was available with the full, legal exercise of the existing water right before the change; increasing an appropriator's legal obligation to a senior water right holder; or otherwise substantially affecting the continuation of stream conditions as they would exist with the full, legal exercise of the existing water right at the time of the appropriator's water right was granted.(b) Subject to meeting all other applicable requirements for an application to amend an existing water right, an amendment to a water right, except for the increase in the appropriative amount or diversion rate, shall be approved as provided by Texas Water Code §11.122(b) if the requested change will not cause such adverse impact on other water right holders or the environment of the stream of greater magnitude than under circumstances in which the water right being sought for amendment was fully exercised according to its terms and conditions as they existed prior to the amendment.(c) If it is determined that a proposed amendment for a change in the diversion point may adversely affect existing water rights, the amendment, if approved, shall be subordinate only to such affected water rights and the amended water right shall otherwise retain its priority date.(d) The burden of proving that no adverse impact to other water right holders or the environment will result from the approval of the application is on the applicant.(e) In granting an application, the commission may direct that stream flow restrictions, return flows, and other conditions and restrictions be placed in the permit being issued to protect senior water rights.</content><note type="source"><p>Source Note: The provisions of this §297.45 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.46"><num value="297.46">§297.46</num><heading>Consideration of Public Welfare</heading><content>The commission may grant an application for a new or amended water right only if it finds that it would not be detrimental to the public welfare. For purposes of public welfare findings made under this section, the commission may consider only factors that are within the commission's jurisdiction and expertise as established in Texas Water Code, Chapter 11.</content><note type="source"><p>Source Note: The provisions of this §297.46 adopted to be effective February 24, 1999, 24 TexReg 1162; amended to be effective August 31, 2006, 31 TexReg 6754; amended to be effective August 16, 2018, 43 TexReg 5229.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.47"><num value="297.47">§297.47</num><heading>Impacts on Groundwater</heading><content>(a) In its review and action on an application for a new or amended water right, the commission shall consider the hydrological connection between surface and groundwater and the effects, if any, from the granting of the application on groundwater use, quality, or recharge. In its assessment, the commission shall consider whether the proposed diversion is from a stream that provides significant recharge to a "sole source" aquifer as designated under the federal Safe Drinking Water Act, an aquifer for which there is a certified groundwater management plan under Texas Water Code Chapter 36, or an aquifer that is located within all or part of a priority groundwater management area designated under Texas Water Code Chapter 35.(b) If the commission determines that the granting of an application for a new or amended water right would significantly impair existing uses of groundwater, groundwater quality, or springflow upon which existing surface rights, water quality, aquatic and wildlife habitat, or bays and estuaries depend, the commission may deny the application or place restrictions and limitations in the water right necessary to prevent or mitigate such impacts.(c) In determining the extent of the protection to be provided in a proposed new or amended water right to existing downstream water rights or environmental water needs, the commission may take into consideration instream losses because of recharge occurring in the bed of the stream downstream of the proposed diversion.</content><note type="source"><p>Source Note: The provisions of this §297.47 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.48"><num value="297.48">§297.48</num><heading>Waste Prevention</heading><content>(a) The waste of water is prohibited and is an unlawful use of state water. A water right holder using state water shall use those measures necessary to ensure the beneficial use of water without waste in accordance with these rules and the terms and conditions of the water right and applicable law.(b) The use of that amount of water in excess of that which is economically reasonable for an authorized purpose when reasonable intelligence and reasonable diligence are used in applying the water to that purpose constitutes waste. Waste also includes the diversion or use of water in any manner that causes or threatens to cause pollution of water in violation of applicable rules and standards.(c) A person who permits an unreasonable loss of water through faulty design or negligent operation of any waterworks commits waste, and the commission may declare the waste to be a public nuisance. Faulty design or negligent operation shall include, but not be limited to, the design or operation of waterworks not in accordance with applicable state or federal law, commission rules, plumbing fixture codes or ordinances, or other applicable law or, in the absence of such law, not in accordance with commonly accepted industry standards, engineering principles, and best management practices.(d) The commission or a person injured by the waste of water as provided by subsection (c) of this section may seek civil action in the appropriate state district court to have the nuisance abated and the commission may direct the person supplying the water to close the gates of the person wasting the water and keep them closed until the commission determines that the unlawful use of water is corrected.(e) The right to appropriate that amount of water not beneficially used cannot be perfected and is subject to limitation, cancellation, or forfeiture as provided by law.</content><note type="source"><p>Source Note: The provisions of this §297.48 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.49"><num value="297.49">§297.49</num><heading>Return and Surplus Waters</heading><content>(a) A right to take and use water is limited to the extent and purposes authorized in the water right. Except as specifically provided otherwise in the water right, state water appropriated under a water right may be beneficially used and reused by the water right holder in accordance with the water right prior to its release into a watercourse or stream. Once water has been diverted under a water right and then returned to a watercourse or stream, however, it is considered surplus water and, therefore, subject to maintaining instream uses, beneficial inflows to bays and estuaries, or appropriation by others unless expressly provided otherwise in the water right.(b) A person who takes or diverts water from a watercourse or stream shall conduct surplus water back to the watercourse or stream from which it was taken if the water can be returned by gravity flow and it is reasonably practicable to do so. In addition, the commission may include in the water right a specific amount or percentage of water diverted to be returned and the return point on the stream or watercourse, if necessary to protect senior downstream water rights or to provide flows for instream uses and bays and estuaries.(c) Return waters must meet water quality standards provided by Chapter 307 of this title (relating to Texas Surface Water Quality Standards) prior to their discharge into water in the state. Additionally, such discharge shall not impair an existing or potential beneficial use of groundwater as to its water quality. Nothing in this chapter affects the obligation to obtain a permit under Texas Water Code Chapter 26, if required.(d) Water appropriated under a water right that is recirculated within a reservoir for cooling purposes shall not be considered to be surplus for purposes of this section.</content><note type="source"><p>Source Note: The provisions of this §297.49 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.50"><num value="297.50">§297.50</num><heading>Consideration of Water Conservation Plans</heading><content>(a) Information in the water conservation plan provided by a water right applicant shall be considered by the commission in determining whether any practicable alternative to the requested appropriation exists, whether the requested amount of appropriation as measured at the point of diversion is reasonable and necessary for the proposed use, the term and other conditions of the water right, and to ensure that reasonable diligence will be used to avoid waste and achieve water conservation. Based upon its review, the commission shall determine whether to deny or grant, in whole or in part, the requested appropriation.(b) A water conservation plan submitted with an application requesting an appropriation for new or additional state water must include data and information which:(1) supports the applicant's proposed use of water with consideration of the water conservation goals of the water conservation plan;(2) evaluates conservation as an alternative to the proposed appropriation; and(3) evaluates other feasible alternatives to new water development, including but not limited to, waste prevention, recycling and reuse, water transfer and marketing, reservoir system operations, and optimum water management practices and procedures. It shall be the burden of proof of the applicant to demonstrate that the requested amount of appropriation is necessary and reasonable for the proposed use.(c) Any water conservation measures prescribed by the commission shall be implemented as required by the terms and conditions of a commission order or water right, or by rule. The holder of a water right for which a conservation or drought contingency plan is required to be submitted in accordance with §288.30 or §295.95 of this title (relating to Required Plans and Water Conservation and Drought Contingency Plans, respectively) shall install and maintain a measuring device at such point or points as may be determined by the executive director or water master, as applicable, to be necessary for the proper and efficient administration of water rights. All such measuring devices shall be subject to approval of the executive director or watermaster, as applicable. The measuring devices shall measure within 5.0% accuracy unless otherwise approved by the executive director or watermaster. The diverter shall provide reasonable access to such measuring device.</content><note type="source"><p>Source Note: The provisions of this §297.50 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.51"><num value="297.51">§297.51</num><heading>Time Limitations for Commencement or Completion of Construction</heading><content>When a water right is issued for appropriation by direct diversion or construction, modification or repair of a storage reservoir, or any work in which a time limitation is set by the water right for commencement or completion of construction, a water right holder shall commence and complete actual construction of the proposed facilities within the time fixed by the commission. Failure to commence or complete construction within the time specified in the permit or extension granted by the commission shall cause the water right holder to forfeit all rights to the permit, subject to the provisions of §295.72 of this title (relating to Applications for Extensions of Time) and the provisions of §297.74 of this title (relating to Forfeiture and Revocation of Water Right).</content><note type="source"><p>Source Note: The provisions of this §297.51 adopted to be effective February 24, 1999, 24 TexReg 1162; amended to be effective August 15, 2002, 27 TexReg 7152.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.52"><num value="297.52">§297.52</num><heading>Suppliers of Water for Agriculture</heading><content>Persons supplying state water for agriculture purposes shall charge the purchaser on a volumetric basis. The commission may direct suppliers of state water to implement appropriate procedures for determining the volume of water delivered.</content><note type="source"><p>Source Note: The provisions of this §297.52 adopted to be effective February 24, 1999, 24 TexReg 1162; amended to be effective August 15, 2002, 27 TexReg 7152.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.53"><num value="297.53">§297.53</num><heading>Habitat Mitigation</heading><content>(a) In its consideration of an application for a new or amended water right to store, take, or divert state water in excess of 5,000 acre-feet per year, the commission shall assess the effects, if any, of the granting of the application on fish and wildlife habitats. The commission shall also consider whether the proposed project would affect river or stream segments of unique ecological value as identified by the applicable approved regional water plan and designated as such by the Texas Legislature in accordance with Texas Water Code §16.051(e).(b) For an application for a new or amended water right to store, take, or divert state water, the commission may require the applicant to take reasonable actions to mitigate adverse impacts, if any, on fish and wildlife habitat.(c) An assessment under this section shall include the project site as well as potentially impacted habitat upstream, adjoining, and downstream of the project site.(d) In determining whether to require an applicant to mitigate adverse impacts on a habitat, the commission may consider any net environmental benefit to the habitat produced by the project. The commission shall offset any mitigation it requires by any mitigation required by the United States Fish and Wildlife Service pursuant to 33 Code of Federal Regulations §§320-330.(e) The goal of the mitigation of wetlands is to achieve "no net loss" of wetland functions and values. In addition to aquatic and wildlife habitat, wetland functions also include, but are not limited to, water quality protection through sediment catchment and filtration, storage plans for flood control, erosion control, groundwater recharge, and other uses.(f) In case of unavoidable wetlands loss, impacts to wetland habitat are mitigated in accordance with the following guidelines:(1) Wetlands shall be classified using the USFWS's "Classification of Wetlands and Deepwater Habitats of the United States" (USFWS 1979). Specific functions and values for wetlands habitats shall be determined on an individual case basis using the most technically appropriate habitat evaluation methodology (e.g., USFWS's Habitat Evaluation Procedures and Wetlands Evaluation Techniques; TPWD's Wildlife Habitat Appraisal Procedure).(2) Mitigation for wetland habitat loss shall seek first to be an on-site and in-kind replacement of lost wetland function and value whenever possible. Habitat mitigation shall be considered only after the complete sequencing (avoidance, minimization or modification, and compensation/replacement) process has been performed in accordance with 40 CFR §230.10 et seq.(3) Habitats shall be evaluated using the most appropriate methodology (e.g., USFWS's Habitat Evaluation Procedures and Wetlands Evaluation Techniques; TPWD's Wildlife Habitat Appraisal Procedure). Total habitat value for each habitat type shall be determined on an individual case basis for the area impacted by a project.(4) Mitigation for terrestrial and riparian habitat loss shall be based upon on-site and in-kind replacement of lost habitat whenever possible. Habitat mitigation shall be considered only after it has been established that habitat impacts are unavoidable and there is suitable mitigation habitat available for complete compensation for the lost habitat. Where on-site, in-kind replacement of habitat is not possible, mitigation shall be limited to the same watershed and ecoregion.(5) Replacement of affected terrestrial and riparian habitats shall be of equal or greater value with respect to affected habitat. Mitigation will not be limited to a total habitat replacement, but will consider the threatened or endangered nature of the habitat(s) being lost or degraded and the limiting effects of surrounding land use on success compensation. Buffer zones around the mitigation area may be required to fully compensate for the total habitat loss.(6) Water right permit reviews shall examine both direct and indirect impacts to terrestrial and riparian habitats, as well as long and short-term effects to the watershed or ecoregion that may result from the permitted activity.(7) Habitat mitigation plans and agreements shall be ensured through binding legal contracts, permit provisions, and detailed management plans and shall include goals and schedules of completion of those goals. The mitigation habitat shall be managed in perpetuity by a party approved by the commission to maintain the habitat value lost because of project impacts.(g) The assessment of and conditions upon a proposed amendment to a water right under this section shall be limited by §297.45(b) of this title (relating to "No Injury" Rule) as provided by Texas Water Code §11.122(b).</content><note type="source"><p>Source Note: The provisions of this §297.53 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.54"><num value="297.54">§297.54</num><heading>Water Quality Effects</heading><content>(a) In its consideration of an application for a new or amended water right to store, take or divert water, the commission shall assess the effects, if any, of the granting of the application on water quality of the stream or river to which the application applies, as well as associated bays and estuaries. Assessment of water quality impacts shall consider the maintenance of State of Texas Surface Water Quality Standards provided by Chapter 307 of this title (relating to Texas Surface Water Quality Standards) and the need for all existing instream flows to be passed up to that amount necessary to maintain the water quality standards for the affected stream. Such flows may also be used to protect uses of existing, downstream water rights by providing water of a usable quality and to provide, in part, for the protection of vested riparian water rights and domestic and livestock uses.(b) The assessment of any conditions upon a proposed amendment to a water right under this section shall be limited by §297.45(b) of this title (relating to "No Injury" Rule) as provided by Texas Water Code §11.122(b).</content><note type="source"><p>Source Note: The provisions of this §297.54 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.55"><num value="297.55">§297.55</num><heading>Estuarine Considerations</heading><content>(a) In its consideration of an application for a new or amended water right to store, take, or divert water, the commission shall assess the effects, if any, of the granting of the application on the bays and estuaries of Texas. For permits issued within an area that is 200 river miles of the coast, to commence from the mouth of the river thence inland, the commission shall include in the water right, to the extent practicable when considering all public interests, those conditions considered necessary to maintain beneficial inflows to any affected bay and estuary system.(b) For purposes of making a determination under this section, the commission shall consider:(1) the need for periodic freshwater inflows to supply nutrients, sediments, and modify salinity to preserve the sound environment of the bay and estuary, using any available information, including studies and plans specified in Texas Water Code §11.1491 and other studies considered by the commission to be reliable; together with existing circumstances, natural or otherwise, that may prevent the conditions imposed from producing benefits;(2) the ecology and productivity of the affected bay and estuary system;(3) the expected effects on the public welfare of not including in the water right some or all of the conditions considered necessary to maintain the beneficial inflows to the affected bay or estuary system;(4) the quantity of water requested and the proposed use of the water by the applicant, as well as the needs of those who would be served by the applicant;(5) the expected effects on the public welfare of the failure to issue all or part of the water right being considered; and(6) the declarations as to preferences for competing uses of water as found in Texas Water Code §§11.023 and 11.024 as well as the policy statement in Texas Water Code §11.003.(c) At least five percent (5%) of the annual firm yield of water in any reservoir or associated works on which construction began on or after September 1, 1985, and which is constructed with state financial participation and is located within 200 river miles from the coast, to commence from the mouth of the river thence inland, is appropriated to the Texas Parks and Wildlife Department for use to make releases to bays and estuaries and instream uses. This five percent figure may not be indicative of the full instream needs or the freshwater inflow needs of the affected bay or estuary system and the commission may impose additional water right conditions to provide a greater amount of water for this purpose, if necessary and appropriate after considering all the factors provided by subsection (b) of this section.(d) Pursuant to Texas Water Code, §16.195, unallocated water and other water of the state permitted to the Texas Water Development Board and stored in any facility acquired by and under the control of the Texas Water Development Board may be released without charge to relieve any emergency condition arising from drought, severe water shortage, or other calamity including, but not limited to, insufficient flows for existing instream uses and beneficial inflows for the maintenance of bays and estuaries, if the commission first determines the existence of the emergency and requests the Texas Water Development Board to release the water. Such release may not impair a contractual obligation of the Texas Water Development Board. The Texas Parks and Wildlife Department may also petition the commission to request such release for the maintenance of existing instream uses and beneficial inflows to bays and estuaries.(e) The assessment of and conditions upon a proposed amendment to a water right under subsections (a) and (b) of this section shall be limited by §297.45(b) of this title (relating to "No Injury" Rule) as provided by Texas Water Code §11.122(b).</content><note type="source"><p>Source Note: The provisions of this §297.55 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.56"><num value="297.56">§297.56</num><heading>Instream Uses</heading><content>(a) In its consideration of an application for a new or amended water right to store, take, or divert water, the commission shall consider the effects, if any, of the granting of the application on existing instream uses of the stream or river to which the application applies. In its determination of flows necessary to maintain recreational and navigational flows, the commission shall consider, but not be limited to, the designation of major waterways by the Texas Parks and Wildlife Department in its publication entitled "An Analysis of Texas Waterways" (1979), and as revised, and the definition of "navigable" stream provided by Texas Natural Resources Code §21.001(3). Additionally, flows necessary to protect a federally listed species under the Endangered Species Act or other species that are considered to be of "high interest" (such as state listed endangered and threatened species, self- sustaining wild populations that are endemic to the affected stream or have significant scientific or commercial value) shall also be protected.(b) The assessment of and conditions upon a proposed amendment to a water right under this section shall be limited by §297.45(b) of this title (relating to "No Injury" Rule) as provided by Texas Water Code §11.122(b).</content><note type="source"><p>Source Note: The provisions of this §297.56 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.57"><num value="297.57">§297.57</num><heading>Emergency Suspension of Permit Conditions</heading><content>The commission or executive director may review and act, under Texas Water Code, §5.506 and §11.148, and under §35.101 of this title (relating to Emergency Suspension of Permit Conditions Relating to Beneficial Inflows to Affected Bays and Estuaries and Instream Uses) on a petition by a water right holder for the temporary suspension of conditions in the water right relating to beneficial inflows to bays and estuaries and instream uses during an emergency.</content><note type="source"><p>Source Note: The provisions of this §297.57 adopted to be effective December 10, 1998, 23 TexReg 12438.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.58"><num value="297.58">§297.58</num><heading>Accounting Water Use</heading><content>(a) If the use of the appropriated water is authorized for multiple purposes, the water right shall contain a special condition limiting the total amount of water that may be actually diverted for all the purposes to the amount of the water appropriated.(b) If a water right has appropriations with different priority dates, the oldest priority water shall be credited against the water first used unless the water right expressly provides otherwise or the water right holder requested the watermaster to count the water use against the junior portion of the right.</content><note type="source"><p>Source Note: The provisions of this §297.58 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scE/s297.59"><num value="297.59">§297.59</num><heading>Additional Limitations</heading><content>(a) The commission will incorporate into every permit or certificate of adjudication any condition, restriction, limitation or provision reasonably necessary for the enforcement and administration of the water laws of the state and the rules of the commission.(b) All dams proposed for authorization by the commission shall provide for outlets of size and location sufficient to pass such flows of water as the commission finds necessary to satisfy the rights of downstream domestic and livestock users, the senior and superior rights of other authorized users, instream flow requirements, water quality, and estuarine inflow requirements.(c) Acceptance of the water right by the water rights holder will be an acknowledgment and agreement that the holder will comply with all the terms, provisions, conditions, limitations and restrictions embodied in such water right. The exercise of rights under a permit authorizing the inundation or installation of a structure upon the land of another will be conditioned upon the continued effectiveness of an easement or agreement between the parties.</content><note type="source"><p>Source Note: The provisions of this §297.59 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c297/scF"><num value="F">SUBCHAPTER F</num><heading>AMENDMENTS TO WATER RIGHTS; CORRECTIONS TO WATER RIGHTS</heading><section identifier="/us/state/tx/tac/t30/p1/c297/scF/s297.61"><num value="297.61">§297.61</num><heading>Amendments by Executive Director</heading><content>(a) On the petition of the executive director, the commission may amend a permit, certified filing, or certificate of adjudication in order to:(1) protect superior and senior water rights in the river basin, or in the case of transwatershed diversions of water, in the basin of origin;(2) provide a reasonable means for the enforcement of the terms, conditions, provisions, and limitations contained in the water right;(3) provide for the keeping and reporting of information and measurements in connection with the use of water;(4) provide a reasonable means for the enforcement of applicable law;(5) correct errors inadvertently made in the preparation of a water right, such as in the name of the water right holder, boundary description, or other detail incorrectly transcribed; or(6) cure ambiguities or ineffective provisions in a water right.(b) See §295.71 of this title (relating to Applications to Amend a Permit); see also §295.158 of this title (relating to Notice of Amendments to Water Rights).</content><note type="source"><p>Source Note: The provisions of this §297.61 adopted to be effective May 29, 1986, 11 TexReg 2330; amended to be effective August 15, 2002, 27 TexReg 7152.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c297/scG"><num value="G">SUBCHAPTER G</num><heading>CANCELLATION, REVOCATION, ABANDONMENT, AND FORFEITURE OF WATER RIGHTS</heading><section identifier="/us/state/tx/tac/t30/p1/c297/scG/s297.71"><num value="297.71">§297.71</num><heading>Cancellation in Whole or in Part</heading><content>(a) Except as provided by subsection (b) of this section, if all or part of a water right has not been put to beneficial use during a consecutive ten-year period, such water right is subject to cancellation in whole or in part as provided by this subchapter.(b) A water right is not subject to cancellation as provided by subsection (a) of this section to the extent that such nonuse is the result of:(1) the water right holder's participation in the Conservation Reserve Program authorized by 16 United States Code, §§3831 - 3836, Food Security Act of 1985 or a similar governmental program;(2) a significant portion of the water right has been used in accordance with a specific recommendation for meeting a water need included in the applicable regional water plan approved under Texas Water Code (TWC), §16.053;(3) the deposit of the water right in the Water Trust for the maintenance of environmental flow needs in accordance with TWC, §15.7031;(4) the deposit of the water right in the Texas Water Bank and the water right is protected from cancellation in accordance with TWC, §15.703;(5) the water right was obtained to meet demonstrated long-term public water supply or electric generation needs as evidenced by a water management plan developed by the water right holder, and the water right is consistent with projections of future water needs contained in the state water plan;(6) the water right was obtained as the result of the construction of a reservoir funded, in whole or in part, by the holder of the water right, as part of the water right holder's long-term water planning; or(7) the implementation of water conservation measures under a water conservation plan submitted by the holder of the permit, certified filing, or certificate of adjudication as evidenced by implementation reports submitted by the holder.</content><note type="source"><p>Source Note: The provisions of this §297.71 adopted to be effective February 24, 1999, 24 TexReg 1162; amended to be effective August 15, 2002, 27 TexReg 7152; amended to be effective August 31, 2006, 31 TexReg 6754.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scG/s297.72"><num value="297.72">§297.72</num><heading>Notice and Hearing</heading><content>(a) When commission records show that all or part of a water right has not been used during the past ten years, the executive director may file a petition with the commission for a hearing before the commission to show cause why the water right should not be canceled. Except as specifically provided otherwise by this Subchapter, such proceedings shall be held in accordance with the general hearing provisions of Chapter 50 of this title (relating to Action on Applications) of the commission rules.(b) At least 45 days before the date of the hearing, the commission shall send notice of the petition and hearing to the affected water right holder. Notice shall be sent by registered mail, return receipt requested, to the last address shown by the records of the commission. The commission shall also send notice by regular mail to all water right holders in the same watershed.(c) The commission shall also have the notice of the hearing published once a week for two consecutive weeks, at least thirty (30) days before the date of the hearing, in a newspaper published in each county in which the diversion of water from the source of supply was authorized or proposed to be used, as shown by the records of the commission. If in any such county no newspaper is published, then the notice may be published in a newspaper having general circulation in the county.(d) Except as provided by subsection (e) of this section, the commission shall hold a hearing and shall give the affected water right holder and other interested persons an opportunity to be heard and to present evidence on any matter pertinent to the questions at issue.(e) A hearing on the cancellation of the water right is unnecessary if the right to such hearing is expressly waived by the affected water right holder.(f) A water right for a term does not vest in the water right holder any right to the diversion, impoundment, storage, taking or use of water for longer than the term of the water right and shall expire and be canceled in accordance with its terms without further need for notice or hearing.</content><note type="source"><p>Source Note: The provisions of this §297.72 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scG/s297.73"><num value="297.73">§297.73</num><heading>Commission Finding; Action</heading><content>(a) At the conclusion of the hearing, the commission shall cancel the water right in whole or in part to the extent that it finds that:(1) the water or any portion of the water under the water right has not been put to an authorized beneficial use during the ten-year period; and(2) the water right holder has not used reasonable diligence in applying the water or the unused portion of the water to an authorized beneficial use or is otherwise unjustified in the nonuse as provided by subsection (b) of this section.(b) In determining what constitutes reasonable diligence or a justified nonuse as provided in subsection (a) (2) of this section, the commission shall give consideration to:(1) whether sufficient water is available in the source of supply to meet all or part of the appropriation during the ten-year period of nonuse;(2) whether the nonuse is justified by the water right holder's participation in the federal Conservation Reserve Program or a similar governmental program as provided by §297.71 of this title (relating to Cancellation in Whole or In Part);(3) whether the existing or proposed authorized purpose and place of use are consistent with an approved regional water plan as provided by Texas Water Code (TWC), §16.053;(4) whether the water right has been deposited into the Texas Water Bank or Water Trust as provided by TWC, §15.7031 and §15.704 or whether it can be shown by the water right holder that the water right or water is currently being made available for purchase through private marketing efforts at fair market value and under reasonable terms and conditions; or(5) whether the water right has been reserved for instream uses or beneficial inflows for bays and estuaries.(c) Regardless of the other provisions of this subchapter, no portion of a water right held by a city, town, village, or municipal water district authorizing the use of water for municipal purposes shall be canceled if the water has been put to beneficial use under the water right at any time during the ten-year period immediately preceding the initiation of cancellation proceedings.(d) Failure to initiate cancellation proceedings under this subchapter does not validate or improve the status of any water right in whole or in part.(e) Once cancellation proceedings have been initiated against a particular water right and a hearing has been held, further cancellation proceedings shall not be initiated against the same water right within the five-year period immediately following the date of the hearing.</content><note type="source"><p>Source Note: The provisions of this §297.73 adopted to be effective February 24, 1999, 24 TexReg 1162; amended to be effective August 15, 2002, 27 TexReg 7152.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scG/s297.74"><num value="297.74">§297.74</num><heading>Forfeiture and Revocation of Water Right</heading><content>(a) A water right may be forfeited for failure to timely commence or complete construction of the diversion facilities as provided by §295.72 of this title (relating to Applications for Extension of Time).(b) A temporary or term permit may be revoked or suspended upon written or verbal notice by the executive director or watermaster, as applicable, without hearing if necessary to protect senior and vested water rights or instream uses and freshwater inflow needs for bays and estuaries. Notice of such revocation shall also be provided to the affected water right holder by registered mail, return receipt requested.(c) Authorization to divert water from a reservoir constructed by the federal government for which no local sponsor has been designated nor permit issued or a reservoir permitted for storage solely for the purpose of optimum development of the project may be revoked when compliance with the conditions contained in the letter authorizing the diversion of water is not occurring or, in the case of authorized diversions for domestic use, water becomes reasonably available through a water supply system. Revocation shall be made by a letter setting forth the basis of the revocation signed by a commissioner. Upon receipt of the letter, the user shall cease diverting water and remove diversion facilities.(d) This section does not apply to a permit for construction of a reservoir designed for storage of more than 50,000 acre-feet of water.</content><note type="source"><p>Source Note: The provisions of this §297.74 adopted to be effective February 24, 1999, 24 TexReg 1162; amended to be effective August 15, 2002, 27 TexReg 7152.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scG/s297.75"><num value="297.75">§297.75</num><heading>Abandonment of Water Right</heading><content>(a) A water right shall be determined to have been abandoned if the water right holder:(1) has the intent to knowingly relinquish the water right; and(2) the water right has not been used for a consecutive three-year period or more.(b) The requisite intent for abandonment can be shown by express statements of the water right holder.(c) Petition, notice and hearing under this section shall be provided in the same manner as the cancellation of a water right provided by §297.72 of this title (relating to Notice and Hearing).(d) If the commission's records reflect that the amount of water authorized to be appropriated under a water right is not being used, either in whole or in part, the executive director may send an appropriate form to the holder of the water right by which the holder or the holder's authorized agent may request cancellation of the unused portion of the right or the entire right.</content><note type="source"><p>Source Note: The provisions of this §297.75 adopted to be effective February 24, 1999, 24 TexReg 1162.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c297/scH"><num value="H">SUBCHAPTER H</num><heading>CONVEYANCES OF LAND AND WATER RIGHTS</heading><section identifier="/us/state/tx/tac/t30/p1/c297/scH/s297.81"><num value="297.81">§297.81</num><heading>General Rules of Conveyance</heading><content>(a) Except as provided in subsection (b) of this section, the right to use water for the purpose of irrigation is appurtenant to the land authorized to be irrigated, and a conveyance of land with an appurtenant water right also conveys the water right unless expressly reserved or excepted; provided, however, that if the water right has been granted for the irrigation of land not owned by the applicant, such a water right is personal to the permittee and does not pass with a conveyance of the land.(b) A water right does not attach to the irrigated land when held by a water corporation, water district, river authority, or governmental entity authorized to supply water to others. Only by express written conveyance can such a water right be transferred. The foregoing is subject to all laws relating to lawful rights of owners along ditches and canals.(c) If a landowner reserves a water right in a conveyance of land authorized to be irrigated and desires to change the place of use, the point of diversion, or the purpose of use, an application to amend the water right must be filed with the executive director as provided by §295.71 of this title (relating to Applications To Amend a Permit).(d) A water right may be conveyed separately from the land; provided, however, the water right must be utilized in accordance with its terms and conditions until amended by the commission.</content><note type="source"><p>Source Note: The provisions of this §297.81 adopted to be effective May 29, 1986, 11 TexReg 2331.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scH/s297.82"><num value="297.82">§297.82</num><heading>Duty To Inform Executive Director</heading><content>An owner of a water right or his or her agent shall promptly inform the executive director of any transfer of water right or change of the owner's address.</content><note type="source"><p>Source Note: The provisions of this §297.82 adopted to be effective May 29, 1986, 11 TexReg 2331.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scH/s297.83"><num value="297.83">§297.83</num><heading>Recording Conveyances of Water Rights</heading><content>The written instrument evidencing a water right ownership transfer shall be recorded in the office of the county clerk. Certified copies or photocopies of the recorded instruments establishing the complete chain of title between owners of record and the new owner shall be filed with the executive director along with a completed Change of Ownership Form and an ownership recording fee as required by §295.139(d) of this title (relating to Miscellaneous Fees).</content><note type="source"><p>Source Note: The provisions of this §297.83 adopted to be effective May 29, 1986, 11 TexReg 2331; amended to be effective January 7, 1994, 18 TexReg 9936.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c297/scI"><num value="I">SUBCHAPTER I</num><heading>CONVEYING STORED WATER</heading><section identifier="/us/state/tx/tac/t30/p1/c297/scI/s297.91"><num value="297.91">§297.91</num><heading>Use of Bed and Banks</heading><content>Anyone proposing to use the bed and banks of any flowing natural stream within this state for the purpose of conveying stored water from a place of permitted storage to a place of permitted use must first comply with the Texas Water Code, §11.042, and the rules of the commission. An exception to the requirements of this section may be granted by the commission if an emergency condition exists and time does not permit following the procedures herein outlined. Further, the requirements of this section are not applicable if water is being released from upstream storage under order of the commission. See §295.111 of this title (relating to Application).</content><note type="source"><p>Source Note: The provisions of this §297.91 adopted to be effective May 29, 1986, 11 TexReg 2331.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scI/s297.92"><num value="297.92">§297.92</num><heading>Authorization</heading><content>The commission may require the alteration or amendment of any contract for the transportation of water if it finds the change is necessary to protect vested rights or prevent the undue loss of water. After the commission is satisfied that all provisions of law and these rules have been complied with and that transportation of the stored water should be authorized, an order will be entered authorizing the use of the watercourse for that purpose and notice shall be made by the commission in accordance with §295.160 of this title (relating to Notice of Applications To Convey Stored Water). The rate of flow shall be determined by the executive director, and all interested parties will be notified of the rate. An exception to the requirements of this section may be granted by the commission if an emergency condition exists and time does not permit following the procedures herein outlined. Further, the requirements of this section are not applicable if water is being released from upstream storage under order of the commission.</content><note type="source"><p>Source Note: The provisions of this §297.92 adopted to be effective May 29, 1986, 11 TexReg 2331.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scI/s297.93"><num value="297.93">§297.93</num><heading>Duties of Water Conveyor</heading><content>The owner or controller of stored water shall not permit the same to overflow the banks of any stream, nor shall he or she interfere with those having a lawful right to the use of that rate of flow of the stream which would prevail in the absence of the water in transit. The rate of flow shall be determined by the executive director, and all interested parties will be notified of the rate. Water, when released for downstream use, shall be of a quality that will not affect adversely or harmfully the quality of water in the stream or in storage below.</content><note type="source"><p>Source Note: The provisions of this §297.93 adopted to be effective May 29, 1986, 11 TexReg 2331.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scI/s297.94"><num value="297.94">§297.94</num><heading>Duties of Others Along the Stream</heading><content>If stored waters are released from a reservoir and are designated for use or storage downstream by a specified user legally entitled to receive the water, it shall be unlawful for any other person to divert, store, appropriate, use, or otherwise interfere with the passage of the waters that are designated for downstream use or storage. Each owner or operator of a reservoir and dam on the stream between the point of release and the point of designation shall permit the free passage through the reservoir and dam of all such released waters in transit.</content><note type="source"><p>Source Note: The provisions of this §297.94 adopted to be effective May 29, 1986, 11 TexReg 2331.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c297/scJ"><num value="J">SUBCHAPTER J</num><heading>WATER SUPPLY CONTRACTS AND AMENDMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c297/scJ/s297.101"><num value="297.101">§297.101</num><heading>General; Exceptions</heading><content>(a) General. In order for the commission to exercise effective supervision over all uses of state water, each supplier of treated or untreated state water possessing a valid water right shall make application for an amendment based upon the supplier's contractual arrangements with a purchaser and/or shall submit a copy of the contract in accordance with §295.101 of this title (relating to Documents To Be Filed). The contract must be submitted and/or the application approved by the commission before deliveries or diversions under the contract may be made lawfully. If a contract meets the requirements of these sections and is consistent with the authorizations of the base water right, the executive director will place a copy of the contract on file with the commission records and shall so notify the supplier.(b) Exceptions. The sections of this subchapter shall not apply to the following:(1) sales of untreated water conveyed by the supplier through a canal, pipeline, or aqueduct for the purpose and for use in the area authorized in the water right;(2) sales of treated water supplied through a public or private municipal distribution system or through a rural water supply system for the purpose and for use in the area authorized in the water right;(3) deliveries of treated sewage effluent for the purpose and use authorized and in the area authorized in the water right;(4) short term (three years or less) sales of untreated water from the perimeter of a reservoir for any purpose authorized in the water right in amounts not exceeding 10 acre-feet per annum; or(5) sales of untreated water from the Lower and Middle Rio Grande.</content><note type="source"><p>Source Note: The provisions of this §297.101 adopted to be effective May 29, 1986, 11 TexReg 2331.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scJ/s297.102"><num value="297.102">§297.102</num><heading>When Application Required</heading><content>(a) If the exercise of rights under the contract between the supplier and the purchaser would require amendment of the appropriative right on which the sale is based, the supplier shall submit an application for an amendment in accordance with §295.101 of this title (relating to Documents To Be Filed).(b) If the exercise of rights under the contract between the supplier and the purchaser would not require amendment of the appropriative right on which the sale is based or would require amendment of the appropriative right only by adding a diversion point or by changing the place of use of a water right which authorizes storage, the supplier shall submit a copy of the executed contract to the executive director and shall not have to submit an application for an amendment.(c) If the supplier is not the holder of the appropriative right on which the sale is based and if the exercise of rights under the contract between the supplier and the purchaser would require an amendment to alter the appropriative right:(1) the holder of the appropriative right on which the sale is based shall apply to amend the right in accordance with §295.71 of this title (relating to Applications To Amend a Permit), and the supplier shall submit a copy of the contract and/or an application for a permit in accordance with §295.101 of this title (relating to Documents To Be Filed); or(2) the holder of the appropriative right on which the sale is based shall join with the supplier in the application for amendment.(d) See §295.158 of this title (relating to Notice of Amendments to Water Rights) for notice requirements and Chapter 295, Subchapter B of this title (relating to Water Rights, Procedural) for required fees.</content><note type="source"><p>Source Note: The provisions of this §297.102 adopted to be effective May 29, 1986, 11 TexReg 2331.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scJ/s297.103"><num value="297.103">§297.103</num><heading>Special Requirements for Downstream Sales of Water from a Storage Reservoir</heading><content>(a) If a contract which obligates a supplier to supply water from storage to a purchaser does not provide for or contemplate diversions of water by the purchaser from streamflows other than those resulting from releases of water from storage under the contract, the supplier shall make releases of water to the extent of the purchaser's downstream diversions within the limits of the supplier's water right or the contract, except as follows.(1) Nothing in these sections shall require a seller to release water to satisfy contractual obligations when such release would aggravate existing flooding conditions, and the purchaser may divert water during such conditions pursuant to the contract.(2) The executive director may recommend a condition to be included in the contractual amendment which establishes stream flood stages for purposes of this section. The commission may include such a condition in each amendment which authorizes such a downstream sale of water from storage.(b) If a contract which obligates a supplier to supply water from storage to a purchaser provides for or contemplates diversions of water by the purchaser from streamflows other than those resulting from releases of water from storage for the purchaser's use under the contract, and if neither the purchaser nor the supplier possesses a valid appropriative right authorizing such diversions:(1) the purchaser shall obtain a regular, term, or temporary permit to appropriate water to the extent of his maximum annual diversions of water not released from storage before the supplier's amendment, if any, may be approved; or(2) the supplier shall apply for a regular, term, or temporary permit or an amendment to the supplier's water right to appropriate water to the extent of the purchaser's maximum annual diversions of water not released from storage; provided that the contract specified that the supplier shall have or shall apply for such permit or amendment and that the purchaser shall divert water not released from storage only pursuant to such permit or amendment.(c) If any contract required to be filed under this subchapter does not specify which party will bear transportation and evapotranspiration losses from a reservoir to a downstream point of diversion, the supplier shall bear such losses.</content><note type="source"><p>Source Note: The provisions of this §297.103 adopted to be effective May 29, 1986, 11 TexReg 2331.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scJ/s297.104"><num value="297.104">§297.104</num><heading>Special Requirements for Upstream Sales of Water from Storage</heading><content>If a contract provides that a purchaser may divert water upstream of a supplier's storage reservoir in a manner which impairs the supplier's water right:(1) the purchaser shall obtain a permit to the extent of the person's maximum annual diversions of water for the term of the contract; or(2) the supplier shall obtain a permit or an amendment to the extent of the purchaser's maximum annual diversions of water for the term of the contract; provided that the contract specifies that the supplier shall apply for such permit or amendment and that the purchaser shall divert water only under such permit or amendment.</content><note type="source"><p>Source Note: The provisions of this §297.104 adopted to be effective May 29, 1986, 11 TexReg 2331; amended to be effective August 19, 2002, 27 TexReg 7152.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scJ/s297.105"><num value="297.105">§297.105</num><heading>Effective Date of Water Supply Contract Rules</heading><content>The requirements of §§295.101-295.104 of this title (relating to Documents To Be Filed; When Application Required; Special Requirements for Downstream Sales of Water from a Storage Reservoir; and Special Requirements for Upstream Sales of Water from Storage) apply to all contracts for sales of treated or untreated state water entered into after January 2, 1964.</content><note type="source"><p>Source Note: The provisions of this §297.105 adopted to be effective May 29, 1986, 11 TexReg 2331.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scJ/s297.106"><num value="297.106">§297.106</num><heading>Perfection and Priority of Water Right</heading><content>(a) Unless exempted by these sections, no treated or untreated state water hereafter supplied under a contract shall be deemed to be in perfection of the supplier's appropriative right under which the water is supplied, unless and until the contractual amendment is granted by the commission or the contract is submitted to the executive director in accordance with §295.101 of this title (relating to Documents To Be Filed).(b) If the supplier or the purchaser is required by §297.103 of this title (relating to Special Requirements for Downstream Sales of Water from a Storage Reservoir) to obtain a regular, term, or temporary permit or an amendment to the extent of the purchaser's maximum annual diversions of water not released from storage, the regular, term, or temporary permit or amendment shall be perfected by the purchaser's diversions of water not released from storage.(c) If a supplier enters into a contract which authorizes a purchaser to divert water upstream of the supplier's storage reservoir in a manner which impairs the supplier's water right, all diversions made by the purchaser shall be deemed for perfection purposes to be diversions from the perimeter of the reservoir.(d) Nothing contained in this subchapter shall be construed as affecting in any way the perfection of rights exercised prior to January 2, 1964, in a manner not in compliance with §295.101 of this title (relating to Documents To Be Filed), §297.103 of this title (relating to Special Requirements for Downstream Sales of Water from a Storage Reservoir) and §297.104 of this title (relating to Special Requirements for Upstream Sales of Water from Storage) .(e) The commission shall include the priority date in each contractual amendment.</content><note type="source"><p>Source Note: The provisions of this §297.106 adopted to be effective May 29, 1986, 11 TexReg 2331.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scJ/s297.107"><num value="297.107">§297.107</num><heading>Reports</heading><content>Both the purchaser and seller of water under a water supply contract shall submit annual reports to the commission in accordance with §295.202 of this title (relating to Reports).</content><note type="source"><p>Source Note: The provisions of this §297.107 adopted to be effective May 29, 1986, 11 TexReg 2331.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scJ/s297.108"><num value="297.108">§297.108</num><heading>Effect on Existing Contractual Permits</heading><content>Nothing contained in these sections shall be construed to invalidate contractual permits or other authorizations which have been obtained prior to the effective date of these sections.</content><note type="source"><p>Source Note: The provisions of this §297.108 adopted to be effective May 29, 1986, 11 TexReg 2331.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c297/scK"><num value="K">SUBCHAPTER K</num><heading>DESALINATION, SUBSTANTIVE</heading><section identifier="/us/state/tx/tac/t30/p1/c297/scK/s297.200"><num value="297.200">§297.200</num><heading>Applicability</heading><content>This subchapter only applies to diversion for desalination and use of marine seawater and diversion for desalination of seawater solely for industrial use and conveyance of treated marine seawater in the bed and banks of a watercourse. The requirements for an application to divert marine seawater and seawater and to convey treated marine seawater in the bed and banks of a watercourse are in Chapter 295, Subchapter G of this title (relating to Desalination, Procedural).</content><note type="source"><p>Source Note: The provisions of this §297.200 adopted to be effective December 8, 2016, 41 TexReg 9559.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scK/s297.201"><num value="297.201">§297.201</num><heading>Definitions</heading><content>The following words or phrases have the following meanings in this subchapter unless the context clearly indicates otherwise:(1) Marine seawater--Water that is derived from the Gulf of Mexico for desalination.(2) Seawater--Water that is derived from a bay or arm of the Gulf of Mexico for desalination and use solely for industrial purposes.</content><note type="source"><p>Source Note: The provisions of this §297.201 adopted to be effective December 8, 2016, 41 TexReg 9559.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scK/s297.202"><num value="297.202">§297.202</num><heading>Approval Criteria for Diversion of Marine Seawater and Seawater</heading><content>The commission shall grant an application for a water right to divert marine seawater or seawater for desalination under this subchapter only if:(1) the application conforms to the requirements prescribed by §295.302 of this title (relating to Requirements for Application for Diversion of Marine Seawater and Diversion of Seawater) and is accompanied by the prescribed fee;(2) the point of diversion is located less than three miles seaward of any point located on the coast of this state; or the water contains a total dissolved solids concentration based on a yearly average of samples taken monthly at the water source of less than 20,000 milligrams per liter, in accordance with the requirements set out in §297.205 of this title (relating to Determination of Total Dissolved Solids Concentration);(3) the diverted marine seawater or seawater is intended for a beneficial use and the marine seawater or seawater will be treated in accordance with applicable commission rules, based on the purpose for which the marine seawater or seawater is to be used, before it is used;(4) the application is not detrimental to the public welfare;(5) the applicant has provided documentation:(A) that the point or points from which a facility the person proposes to construct for diversion of marine seawater are within the zones identified by the Texas Parks and Wildlife Department (TPWD) and the Texas General Land Office (GLO) on the date that the application is submitted; or(B) of the results of consultation with the TPWD and the GLO regarding the location of a facility the person proposes to construct for diversion of seawater;(6) the application addresses a water supply need in a manner that is consistent with the state water plan and the relevant approved regional water plan unless the commission determines that new, changed, or unaccounted for conditions warrant waiver of this requirement; and(7) the applicant has provided evidence that reasonable diligence will be used to avoid waste and achieve water conservation as defined by §297.1 of this title (relating to Definitions).</content><note type="source"><p>Source Note: The provisions of this §297.202 adopted to be effective December 8, 2016, 41 TexReg 9559; amended to be effective May 14, 2020, 45 TexReg 3106.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scK/s297.203"><num value="297.203">§297.203</num><heading>Water Availability</heading><content>The commission is not required to make a finding of water availability for an application under Chapter 295, Subchapter G of this title (relating to Desalination, Procedural).</content><note type="source"><p>Source Note: The provisions of this §297.203 adopted to be effective December 8, 2016, 41 TexReg 9559.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scK/s297.204"><num value="297.204">§297.204</num><heading>Applicability of Environmental Flow Standards</heading><content>(a) The commission shall evaluate whether an application for a diversion of marine seawater or seawater under Chapter 295, Subchapter G of this title (relating to Desalination, Procedural) is consistent with any applicable environmental flow standards established under Chapter 298 of this title (relating to Environmental Flow Standards for Surface Water).(b) The commission may include any provisions in a permit issued under Chapter 295, Subchapter G of this title that the commission considers necessary to comply with the environmental flow standards established under Chapter 298 of this title.</content><note type="source"><p>Source Note: The provisions of this §297.204 adopted to be effective December 8, 2016, 41 TexReg 9559.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scK/s297.205"><num value="297.205">§297.205</num><heading>Determination of Total Dissolved Solids Concentration</heading><content>(a) In its consideration of an application for a new or amended water right to divert marine seawater or seawater, the commission shall review the information required under §295.302(i) of this title (relating to Requirements for Application for Diversion of Marine Seawater and Diversion of Seawater) and determine whether the application meets the requirements of Texas Water Code (TWC), §11.1405(a)(2) and §18.003(a)(2).(b) The monthly samples must be taken at the water source for each proposed diversion location over a period of at least one year, in accordance with applicable TCEQ Surface Water Quality Monitoring Procedures as amended. Procedures for analysis must be in accordance with the most recently published edition of the Standard Methods for the Examination of Water and Wastewater, 40 Code of Federal Regulations Part 136, or other reliable sources acceptable to the commission for total dissolved solids. Laboratory accreditation requirements are specified in Chapter 25 of this title (relating to Environmental Testing Laboratory Accreditation and Certification).(c) The assessment of any conditions upon a proposed amendment to a water right under this section shall be limited by §297.45(b) of this title (relating to "No Injury" Rule) as provided by TWC, §11.122(b).</content><note type="source"><p>Source Note: The provisions of this §297.205 adopted to be effective December 8, 2016, 41 TexReg 9559.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scK/s297.206"><num value="297.206">§297.206</num><heading>Treatment of Diverted Marine Seawater and Seawater</heading><content>The commission shall review the information submitted under §295.302(f) of this title (relating to Requirements for Application for Diversion of Marine Seawater and Diversion of Seawater) and determine whether the diverted marine seawater or seawater will be treated in accordance with applicable commission rules, based on the purpose for which the marine seawater or seawater is to be used.</content><note type="source"><p>Source Note: The provisions of this §297.206 adopted to be effective December 8, 2016, 41 TexReg 9559.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scK/s297.207"><num value="297.207">§297.207</num><heading>Diversion of Marine Seawater and Seawater</heading><content>The commission shall review the information submitted under §295.302(c) of this title (relating to Requirements for Application for Diversion of Marine Seawater and Diversion of Seawater) to ensure that the point of diversion is not located in a bay or estuary unless the application is for desalination solely for industrial purposes under Texas Water Code, §11.1405.</content><note type="source"><p>Source Note: The provisions of this §297.207 adopted to be effective December 8, 2016, 41 TexReg 9559.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scK/s297.208"><num value="297.208">§297.208</num><heading>Consideration of Water Conservation</heading><content>(a) Information in the water conservation plan provided by an applicant for a water right permit to divert marine seawater or seawater shall be considered by the commission in determining whether any practicable alternative exists, whether the requested amount is reasonable and necessary for the proposed use, and to ensure that reasonable diligence will be used to avoid waste and achieve water conservation.(b) A water conservation plan submitted with an application requesting to divert marine seawater or seawater must include data and information which:(1) supports the applicant's proposed use of marine seawater or seawater with consideration of the water conservation goals of the water conservation plan;(2) evaluates conservation as an alternative to the proposed diversion of marine seawater or seawater;(3) evaluates other feasible alternatives to new water development. It shall be the burden of proof of the applicant to demonstrate that the requested amount is necessary and reasonable for the proposed use; and(4) demonstrates compliance with applicable provisions, based on the proposed use, in §295.9 of this title (relating to Water Conservation and Drought Contingency Plans).</content><note type="source"><p>Source Note: The provisions of this §297.208 adopted to be effective December 8, 2016, 41 TexReg 9559.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scK/s297.209"><num value="297.209">§297.209</num><heading>Impingement and Entrainment</heading><content>(a) A person who diverts seawater or marine seawater shall employ reasonable measures to minimize impingement and entrainment.(b) An application to divert marine seawater or seawater under Chapter 295, Subchapter G of this title (relating to Desalination, Procedural) must include a written statement of the facility-specific, reasonable measures to minimize impingement and entrainment that will be implemented at the proposed desalination facility.(c) The written statement under subsection (b) of this section must include:(1) the location and depth of the proposed intake;(2) the timing of the proposed diversions;(3) the physical and performance specifications of the proposed diversion systems and screen barriers, including the size of the screen openings and the maximum flow-through screen velocity; and,(4) documentation that the proposed combination of technologies, management practices, and operational methods represent reasonable measures to minimize impingement and entrainment.(d) A person who diverts seawater or marine seawater to which §295.300(a) of this title (relating to Applicability) does not apply is presumed to be in compliance with subsection (a) of this section if:(1) the person submits to the executive director, with a copy to the Texas Parks and Wildlife Department, a written statement of the facility-specific measures that the person intends to implement at the proposed facility to minimize impingement and entrainment;(2) the written statement under paragraph (1) of this subsection includes the information and documentation required under subsection (c) of this section;(3) within 60 days of the later of the executive director's receipt and Texas Parks and Wildlife Department's receipt of the submittal under paragraph (1) of this subsection, the executive director does not indicate that the submittal is deficient by issuing comments or requesting additional information; and(4) the facility implements the measures described in the submittal under this subsection or, if applicable, the amended submittal under subsection (f) of this section.(e) The executive director may require a person to make a submittal as described in subsection (d) of this section.(f) If the executive director issues any comment or requests additional information relevant to any submittal under subsection (d) or (e) of this section, the person may amend its submittal up to two times beyond its initial submittal.(g) The executive director shall review any submittal under subsection (d) or (e) of this section or amended submittal under subsection (f) of this section within 60 days of receiving it.</content><note type="source"><p>Source Note: The provisions of this §297.209 adopted to be effective December 8, 2016, 41 TexReg 9559.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c297/scK/s297.210"><num value="297.210">§297.210</num><heading>Approval Criteria for an Application to Convey Treated Marine Seawater in the Bed and Banks</heading><content>The commission shall grant an application for a water right to convey treated marine seawater in the bed and banks of a watercourse only if:(1) the application conforms to the requirements prescribed by §295.305 of this title (relating to Requirements for an Authorization to Convey Treated Marine Seawater in Bed and Banks) and is accompanied by the prescribed fee;(2) the marine seawater to be conveyed is treated so as to meet standards that are at least as stringent as the water quality standards adopted by the commission and applicable to any receiving stream or impoundment through which the water is proposed to be conveyed;(3) the treated marine seawater conveyed will only be used by the person to whom the authorization is granted;(4) the estimate of the amount of treated marine seawater that will be lost to transportation, evaporation, seepage, channel or other associated carriage losses is reasonable and appropriate for the stream in which the treated marine seawater will be conveyed;(5) the accounting plan submitted required by §295.305(d)(7) of this title has been approved by the executive director; and(6) the application does not impair existing water rights or vested riparian rights.</content><note type="source"><p>Source Note: The provisions of this §297.210 adopted to be effective December 8, 2016, 41 TexReg 9559.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c298"><num value="298">CHAPTER 298</num><heading>ENVIRONMENTAL FLOW STANDARDS FOR SURFACE WATER</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c298/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c298/scA/s298.1"><num value="298.1">§298.1</num><heading>Definitions</heading><content>The following words or phrases, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise, or unless a subchapter has a different definition that only applies to that subchapter:(1) Affected person--a person who meets the requirements of §55.256 of this title (relating to Determination of Affected Person) for the specific environmental condition proposed to be adjusted.(2) Base flow--the range of average flow conditions, in the absence of significant rainfall events, that may vary depending on current weather patterns.(3) Environmental flow regime--a schedule of flow quantities that reflects seasonal and yearly fluctuations that typically would vary geographically, by specific location in a watershed, and that are shown to be adequate to support a sound ecological environment and to maintain the productivity, extent, and persistence of key aquatic habitats in and along the affected water bodies.(4) Environmental flow standards--those requirements contained in this chapter, adopted by the commission under Texas Water Code, §11.1471.(5) Lower Rio Grande--the main stem of the Rio Grande, and its tributaries in Texas, from just above Falcon Reservoir to the mouth of the Rio Grande.(6) Measurement point--a specific geographical location on a watercourse where environmental flow standards are established.(7) Middle Rio Grande--the main stem of the Rio Grande, and its tributaries in Texas, from just above Amistad Reservoir to just above Falcon Reservoir.(8) Pulse or high flow pulse--relatively short-duration, high flows within the stream channel that occur during or immediately following a storm event.(9) Set-aside-an amount of unappropriated water, if available, to be set aside to satisfy the environmental flow standards to the maximum extent reasonable when considering human water needs.(10) Subsistence flow--the minimum streamflow needed during critical drought periods to maintain tolerable water quality conditions and to provide minimal aquatic habitat space for the survival and recolonization of aquatic organisms.(11) USGS--United States Geological Survey.(12) Water right holder--a person or entity that owns a valid certificate of adjudication, certified filing, or water right permit.(13) Water right permit--a valid certificate of adjudication, certified filing, or water right permit. The term does not include exempt water uses, such as domestic and livestock water uses.</content><note type="source"><p>Source Note: The provisions of this §298.1 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scA/s298.5"><num value="298.5">§298.5</num><heading>General</heading><content>This chapter contains the environmental flow standards and set-asides required by Texas Water Code (TWC), §11.1471. The commission adopts these environmental flow standards for each river basin and bay system in this state as the commission receives recommendations from basin and bay area stakeholders in accordance with TWC, §11.02362. The commission finds that the environmental flow standards adopted herein are adequate to support a sound ecological environment, to the maximum extent reasonable, considering other public interests and other relevant factors as described in TWC, §11.1471(b). The environmental flow standards adopted herein are schedules of flow quantities, reflecting seasonal and yearly fluctuations that vary geographically by specific location in a river basin and bay system.</content><note type="source"><p>Source Note: The provisions of this §298.5 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scA/s298.10"><num value="298.10">§298.10</num><heading>Applicability</heading><content>(a) This chapter only relates to a permit for a new appropriation of water or to an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted, and the chapter applies only when there is an applicable adopted environmental flow standard and only to:(1) Water appropriated under a permit for a new appropriation of water, the application for which was pending with the commission on September 1, 2007, or is filed with the commission on or after that date; or(2) The increase in the amount of water authorized to be stored, taken, or diverted under an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted, and the application for which was pending with the commission on September 1, 2007, or was filed with the commission on or after that date.(b) This chapter does not otherwise amend or restrict the commission's authority to impose special conditions on water right permits, including special conditions to protect environmental flows. The commission retains any and all authority to place special conditions on interbasin transfers; on amendments, such as an amendment to move a diversion point upstream; and on authorizations under Texas Water Code (TWC), §11.042 and §11.046, to protect environmental flows or senior water rights. This chapter also does not expand the commission's authority to impose special conditions on water right permits beyond the authority granted to the commission in TWC, Chapter 11, or expressed by the commission in Chapter 297 of this title (relating to Water Rights, Substantive).</content><note type="source"><p>Source Note: The provisions of this §298.10 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scA/s298.15"><num value="298.15">§298.15</num><heading>Special Conditions to Protect Environmental Flow Standards and Set-Asides</heading><content>(a) The commission may not grant an appropriation for state water that has been set aside by the commission under this chapter to meet downstream instream flow needs or freshwater inflow needs. The commission may not issue a permit for a new appropriation or an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted, after the adoption of an environmental flow set-aside, if the issuance of the permit or amendment would impair an environmental flow set-aside established by this chapter.(b) For purposes of determining any environmental flow conditions in any water right permit application to which this chapter applies that are necessary to maintain: freshwater inflows to an affected bay and estuary system; existing instream uses and water quality of a stream or river; or fish and wildlife habitats; the commission shall apply any applicable environmental flow standard, including any environmental flow set-aside, adopted in this chapter, instead of considering the factors specified in Texas Water Code, §11.147(b) - (e) and §§297.53 - 297.56 of this title (relating to Habitat Mitigation; Water Quality Effects; Estuarine Considerations; and Instream Uses, respectively).(c) The commission will incorporate into every water right permit any condition, restriction, limitation, or provision, as provided in Chapter 297 of this title (relating to Water Rights, Substantive) that is reasonably necessary to protect environmental flow standards.</content><note type="source"><p>Source Note: The provisions of this §298.15 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scA/s298.20"><num value="298.20">§298.20</num><heading>Priority Date for Set-Asides</heading><content>An environmental flow standard or set-aside established under this chapter for a river basin and bay system other than the middle and lower Rio Grande shall be assigned a priority date corresponding to the date the commission receives environmental flow regime recommendations from the applicable basin and bay expert science team as set forth in these rules. This priority date shall be included in the appropriate water availability models maintained by the commission in connection with an application for a permit for a new appropriation or for an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted. The priority date for the environmental flow standards will be used in the water availability determination for a new appropriation or for an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted and has no other purpose.</content><note type="source"><p>Source Note: The provisions of this §298.20 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scA/s298.25"><num value="298.25">§298.25</num><heading>Process for Adjusting Environmental Flow Conditions in Certain Permits</heading><content>(a) On the petition of the executive director, the commission may amend a water right permit for a new appropriation or an amendment for an increase in the amount of water authorized to be stored, taken, or diverted issued after September 1, 2007, in order to adjust environmental flow special conditions, if the commission determines, through the process set forth herein, that such an adjustment is appropriate to achieve compliance with applicable environmental flow standards adopted in this chapter.(b) A petition to adjust an environmental flow special condition shall be prepared by the executive director in the manner of an original application for a permit and have a title that indicates that it is to adjust environmental flow special conditions. The petition shall be filed with the Chief Clerk in the same manner as a water right permit application.(c) Notice of the petition, with an opportunity for public comment, shall be mailed by the executive director by first-class mail, postage prepaid, to each water right holder of record within the basin, to the Texas Parks and Wildlife Department, and to all navigation districts within the river basin concerned not less than 30 days before the date of action on the petition by the commission. The executive director will also cause a copy of the notice to be posted to the commission's Web site at least 30 days before the date of action on the petition by the commission. A temporary outage of service of the commission's Web site during the 30-day notice period does not prevent the commission's consideration of the petition. The inadvertent failure of the executive director to mail notice to a navigation district that is not an appropriator of water does not prevent the commission's consideration of the petition.(d) The commission may act on the petition without holding a public hearing. The commission shall consider all written public comment received on the petition prior to the commission's decision on the petition.(e) A motion for rehearing of the commission's action must be filed no later than 23 days after the Chief Clerk mails (or otherwise transmits) the decision on the petition and provides instructions for requesting that the commission reconsider the decision or hold a contested case hearing. The following may file a motion for rehearing under this chapter:(1) the commission on its own motion;(2) the executive director;(3) the water right holder;(4) Texas Parks and Wildlife Department; and(5) affected persons, when authorized by law.(f) A motion for rehearing by an affected person must be in writing, and must be filed with the Chief Clerk within the time provided by subsection (e) of this section.(g) If the motion for rehearing is granted, the commission may refer the matter to the State Office of Administrative Hearings.(h) The environmental flow adjustment, in combination with any previous adjustments made under this section may not increase the amount of the environmental flow pass-through or release requirement for a water right permit by more than 12.5% of the annualized total of that requirement contained in the permit as issued or of that requirement contained in the amended water right and applicable only to the increase in the amount of water authorized to be stored, taken, or diverted under the amended water right permit. Any new permit conditions must be consistent with the environmental flow standards to the maximum extent practicable.(1) For environmental flow conditions expressed in cubic feet per second, the maximum adjustment is calculated by summing the monthly rate in cubic feet per second for each month and then multiplying the sum of the monthly rates in the original standard in cubic feet per second by 12.5% to generate the maximum annualized adjustment expressed in cubic feet per second. The adjustment, in combination with all previous adjustments, cannot increase the annualized flow requirement above the sum of the original annualized flow requirement plus the original 12.5% adjustment.(2) For environmental flow conditions, such as a pulse, expressed with multiple characteristics, such as frequency, peak flow, volume, and duration, the maximum adjustment is calculated by summing the original pulse volume for each season and multiplying that volume by 12.5% to generate the maximum annualized adjustment amount. The combination of all previous adjustments, and any new adjustment, cannot increase the annualized pulse volume above the sum of the original annualized pulse volume requirement plus the original 12.5% adjustment.(i) The environmental flow adjustment must be based on appropriate consideration of the priority dates and diversion locations of any other water rights granted in the same river basin that are subject to adjustment under this section.(j) The environmental flow adjustment must be based on appropriate consideration of any voluntary contributions to the Texas Water Trust, and of any voluntary amendments to existing water rights to change the use of a specified quantity of water to or add a use of a specified quantity of water for instream flows dedicated to environmental needs or bay and estuary inflows as authorized by Texas Water Code, §11.0237(a), that actually contribute toward meeting the applicable environmental flow standard. Any water right holder who makes a contribution or amends a water right as described herein is entitled to appropriate credit for the benefits of the contribution or amendment against the adjustment of the holder's existing water right permit conditions under this section.(1) Water rights that are voluntarily contributed to the Texas Water Trust or voluntary amendments to change the use where the total volume of water is available in at least 75% of the years, are entitled to credit the contribution or amendment against the adjustment only by spreading out the amount contributed evenly over the year, or, if the underlying permit limits the portion of the year when use is authorized, over that portion of the year when use is authorized in the underlying permit; and(2) Water rights that are voluntarily contributed to the Texas Water Trust or voluntary amendments to change the use where the reliability of the water does not meet the criteria that the water is available in at least 75% of the years, or amendments to add a use of a specified quantity of water for instream flows dedicated to environmental needs or bay and estuary inflows are entitled to credit the contribution or amendment against the adjustment only by spreading out one half of the amount contributed evenly over the year, or, if the underlying permit limits the portion of the year when use is authorized, over that portion of the year when use is authorized in the underlying permit; and(3) For water rights that are voluntarily contributed to the Texas Water Trust and include storage, and providing that the underlying water right authorizes diversion from that storage, allowing the water to be provided in at least 75% of the years, the commission may allow credit for the contribution without spreading the amount of the contribution evenly across the year if the commission determines that doing so would better ensure protection of the standards and any applicable environmental flow set-aside.</content><note type="source"><p>Source Note: The provisions of this §298.25 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c298/scB"><num value="B">SUBCHAPTER B</num><heading>TRINITY AND SAN JACINTO RIVERS, AND GALVESTON BAY</heading><section identifier="/us/state/tx/tac/t30/p1/c298/scB/s298.200"><num value="298.200">§298.200</num><heading>Applicability and Purpose</heading><content>This subchapter contains the environmental flow standards for the Trinity and San Jacinto rivers, their associated tributaries, and Galveston Bay. In case of a direct conflict, provisions of this subchapter control over any provisions of Subchapter A of this chapter (relating to General Provisions) for purposes of environmental flow standards and regulation in the Trinity and San Jacinto rivers, their associated tributaries, and Galveston Bay.</content><note type="source"><p>Source Note: The provisions of this §298.200 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scB/s298.205"><num value="298.205">§298.205</num><heading>Definitions</heading><content>The following words or phrases have the following meanings, in this subchapter, unless the context clearly indicates otherwise:(1) Galveston Bay--the estuary system consisting of Galveston Bay and Trinity Bay, along with smaller associated bays including East Bay and West Bay.(2) Fall--the period of time September through November, inclusive.(3) Spring--the period of time March through May, inclusive.(4) Sound ecological environment--a resilient, functioning ecosystem characterized by intact, natural processes, and a balanced, integrated, and adaptive community of organisms comparable to that of the natural habitat of a region.(5) Summer--the period of time June through August, inclusive.(6) Winter--the period of time December through February, inclusive.</content><note type="source"><p>Source Note: The provisions of this §298.205 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scB/s298.210"><num value="298.210">§298.210</num><heading>Findings</heading><content>(a) The Trinity and San Jacinto rivers, their associated tributaries, Galveston Bay, and the associated estuaries are healthy and sound ecological environments.(b) The commission finds that these sound ecological environments can best be maintained by a set of flow standards that implement a schedule of flow quantities that contain subsistence flow, base flow, and one level of high flow pulses at defined measurement points. Minimum flow levels for these components will vary by season and by year since the amount of precipitation and, therefore, whether a system is in subsistence or base flow conditions, will vary from year to year and within a year from season to season, and the number of pulses protected will also vary with the amount of precipitation.</content><note type="source"><p>Source Note: The provisions of this §298.210 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scB/s298.215"><num value="298.215">§298.215</num><heading>Set-Asides and Standards Priority Date</heading><content>The priority date for the environmental flow standards and set-asides established by this subchapter is December 1, 2009. The priority date for the environmental flow standards will be used in the water availability determination for a new appropriation or for an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted and has no other purpose.</content><note type="source"><p>Source Note: The provisions of this §298.215 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scB/s298.220"><num value="298.220">§298.220</num><heading>Schedule of Flow Quantities</heading><content>(a) The environmental flow standards adopted by this subchapter constitute a schedule of flow quantities made up of subsistence flow, base flow, and one level of high flow pulses. Environmental flow standards are established at six separate measurement locations in §298.225 of this title (relating to Environmental Flow Standards).(b) Subsistence flow. The applicable subsistence flow standard varies depending on the seasons as described in §298.205 of this title (relating to Definitions). For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, the water right holder may not store or divert water unless the flow at the measurement point is above the applicable subsistence flow standard for that point. If the flow at the measurement point is above the subsistence flow standard but below the applicable base flow standard, then the water right holder may divert or store water according to its permit, subject to senior and superior water rights, as long as the flow at the measurement point does not fall below the applicable subsistence flow standard.(c) Base flow. The applicable base flow standard varies depending on the seasons as described in §298.205 of this title. For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, the water right is subject to a base flow standard. For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, when the flow at that point is above the applicable base flow standard, and below the applicable high flow pulse trigger level, the water right holder may store or divert water according to its permit, subject to senior and superior water rights, as long as the flow at the measurement point does not fall below the applicable base flow standard.(d) High flow pulses. High flow pulses are relatively short-duration, high flows within the watercourse that occur during or immediately following a storm event.(1) Two pulses per season are to be passed (i.e., no storage or diversion by an applicable water right holder) if the flows are above the applicable base flow standard, and if the applicable high flow pulse trigger level is met at the measurement point. The water right holder shall not divert or store water except during times that streamflow at the applicable measurement point exceeds the applicable high flow pulse trigger level and until either the applicable volume amount has passed the measurement point or the applicable duration time has passed since the high flowpulse trigger level occurred.(2) If the applicable high flow pulse trigger level does not occur in a season, then the water right holder need not stop storing or diverting water to produce a high flow pulse. The water right holder is not required to store water to be released later to produce a high flow pulse.(3) With the exception of summer and fall, which are treated as a single season for purposes of pulse flow compliance, each season is independent of the preceding and subsequent seasons with respect to high flow pulse frequency.(e) A water right owner that has stored water in accordance with the terms and conditions of its water right, including any applicable environmental flow requirement in effect at the time the water was stored, may divert, release, or use this water, even if the applicable environmental flow requirement is not met at the time of the subsequent diversion, release, or use of that stored water.</content><note type="source"><p>Source Note: The provisions of this §298.220 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scB/s298.225"><num value="298.225">§298.225</num><heading>Environmental Flow Standards</heading><content>(a) A water right application in the Trinity or San Jacinto river basins, which increases the amount of water authorized to be stored, taken or diverted as described in §298.10 of this title (relating to Applicability), shall not reduce the long-term frequency on either a seasonal or annual basis at which the volumes of freshwater inflows, to Galveston Bay, as described in the figure in this subsection, occur. Attached Graphic(b) The freshwater inflow standards are subject to adjustment, in accordance with Texas Water Code, 11.147(e-1). The adjustment for each inflow level is calculated by adding the volumes for all of the seasons in that inflow level for the entire year and multiplying that annual total volume by 12.5% to generate the maximum adjustment amount. The maximum adjustment, including the effect of any previous adjustments, cannot increase the total volume for that inflow level above the sum of the annual total of the original volume requirement for that level plus the 12.5% adjustment.(c) The following environmental flow standards are established for the following described measurement points:(1) West Fork Trinity River near Grand Prairie, Texas, generally described as United States Geological Survey (USGS) gage 08049500, and more specifically described as Latitude 32° 45' 45"; Longitude 96° 59' 40".Attached Graphic(2) Trinity River at Dallas, Texas, generally described as USGS gage 08057000, and more specifically described as Latitude 32° 46' 29"; Longitude 96° 49' 18".Attached Graphic(3) Trinity River near Oakwood, Texas, generally described as USGS gage 08065000, and more specifically described as Latitude 31° 38' 54"; Longitude 95° 47' 21".Attached Graphic(4) Trinity River near Romayor, Texas, generally described as USGS gage 08066500, and more specifically described as Latitude 30° 25' 30"; Longitude 94° 51' 02".Attached Graphic(5) East Fork San Jacinto River near Cleveland, Texas, generally described as USGS gage 08070000, and more specifically described as Latitude 30° 20' 11"; Longitude 95° 06' 14".Attached Graphic(6) West Fork San Jacinto River near Conroe, Texas, generally described as USGS gage 08068000, and more specifically described as Latitude 30° 14' 40"; Longitude 95° 27' 25".Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §298.225 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scB/s298.230"><num value="298.230">§298.230</num><heading>Water Right Permit Conditions</heading><content>(a) For water right permits with an authorization to store or divert more than 10,000 acre-feet per year in the Trinity and San Jacinto River basins, and to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the environmental flow standards of this subchapter.(b) For water right permits with an authorization to store or divert 10,000 acre-feet or less per year in the Trinity and San Jacinto river basins and to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the environmental flow standards of this subchapter; however, no special conditions are necessary to preserve or pass high flow pulses.</content><note type="source"><p>Source Note: The provisions of this §298.230 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scB/s298.240"><num value="298.240">§298.240</num><heading>Schedule for Revision of Standards</heading><content>The environmental flow standards or environmental flow set-asides adopted herein for the Trinity and San Jacinto rivers, their associated tributaries, and Galveston Bay may be revised by the commission through the rulemaking process. The final revised rules shall be effective no sooner than ten years from the effective date of this rule, unless the Trinity and San Jacinto basin and bay area stakeholder committee submits a work plan approved by the advisory group under Texas Water Code, §11.02362(p), that provides for a periodic review to occur more frequently. In that event, the commission may provide for the rulemaking process to be undertaken in conjunction with the periodic review if the commission determines that schedule to be appropriate. The rulemaking process shall include participation by a balanced representation of stakeholders having interests in the Trinity and San Jacinto Rivers, their associated tributaries, and Galveston Bay.</content><note type="source"><p>Source Note: The provisions of this §298.240 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c298/scC"><num value="C">SUBCHAPTER C</num><heading>SABINE AND NECHES RIVERS, AND SABINE LAKE BAY</heading><section identifier="/us/state/tx/tac/t30/p1/c298/scC/s298.250"><num value="298.250">§298.250</num><heading>Applicability and Purpose</heading><content>This subchapter contains the environmental flow standards for the Sabine and Neches Rivers, their associated tributaries, and Sabine Lake Bay. In case of a direct conflict, provisions of this subchapter control over any provisions of Subchapter A of this chapter (relating to General Provisions) for purposes of environmental flow standards and regulation in the Sabine and Neches Rivers, their associated tributaries, and Sabine Lake Bay.</content><note type="source"><p>Source Note: The provisions of this §298.250 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scC/s298.255"><num value="298.255">§298.255</num><heading>Definitions</heading><content>The following words or phrases have the following meanings in this subchapter, unless the context clearly indicates otherwise:(1) Fall--the period of time October through December, inclusive.(2) Spring--the period of time April through June, inclusive.(3) Sound ecological environment--an ecological environment that: supports a healthy diversity of fish and other aquatic life; sustains a full complement of important species; provides for all major habitat types including rivers and streams, reservoirs, and estuaries; sustains key ecosystem processes; and maintains water quality adequate for aquatic life.(4) Summer--the period of time July through September, inclusive.(5) Winter--the period of time January through March, inclusive.</content><note type="source"><p>Source Note: The provisions of this §298.255 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scC/s298.260"><num value="298.260">§298.260</num><heading>Findings</heading><content>(a) The Sabine and Neches Rivers, their associated tributaries, Sabine Lake Bay, and the associated Sabine-Neches estuary are substantially sound ecological environments.(b) The commission finds that these sound ecological environments can best be maintained by a set of flow standards that implement a schedule of flow quantities that contain subsistence flow, base flow, and one level of high flow pulses at defined measurement points. Minimum flow levels for these components will vary by season and by year since the amount of precipitation and, therefore, whether a system is in subsistence or base flow conditions, will vary from year to year and within a year from season to season, and the number of pulses protected will also vary with the amount of precipitation.</content><note type="source"><p>Source Note: The provisions of this §298.260 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scC/s298.265"><num value="298.265">§298.265</num><heading>Set-Asides and Standards Priority Date</heading><content>The priority date for the environmental flow standards and set-asides established by this subchapter is November 30, 2009. The priority date for the environmental flow standards will be used in the water availability determination for a new appropriation or for an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted and has no other purpose.</content><note type="source"><p>Source Note: The provisions of this §298.265 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scC/s298.275"><num value="298.275">§298.275</num><heading>Schedule of Flow Quantities</heading><content>(a) The environmental flow standards adopted by this subchapter constitute a schedule of flow quantities made up of subsistence flow, base flow, and one level of high flow pulses. Environmental flow standards are established for ten measurement points in §298.280 of this title (relating to Environmental Flow Standards) and this section.(b) Subsistence flow. The applicable subsistence flow standard varies depending on the seasons as described in §298.255 of this title (relating to Definitions). For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, the water right holder may not store or divert water, unless the flow at the measurement point is above the applicable subsistence flow standard for that point. If the flow at the measurement point is above the subsistence flow standard but below the applicable base flow standard, then the water right holder may divert or store water according to its permit, subject to senior and superior water rights, as long as the flow at the measurement point does not fall below the applicable subsistence flow standard.(c) Base flow. The applicable base flow level varies depending on the seasons as described in §298.255 of this title. For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, the water right holder is subject to a base flow standard. For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, when the flow at the measurement point is above the applicable base flow standard, but below any applicable high flow pulse trigger levels, the water right holder may store or divert water according to its permit, subject to senior and superior water rights, as long as the flow at the measurement point does not fall below the applicable base flow standard.(d) High flow pulses. High flow pulses are relatively short-duration, high flows within the watercourse that occur during or immediately following a storm event. They flush fine sediment deposits and waste products, restore normal water quality following prolonged low flows, and provide longitudinal connectivity for species movement along the river.(1) Two pulses per season are to be passed during the Spring and Fall seasons and one pulse per season is to be passed during the Winter and Summer seasons (i.e., no storage or diversion by an applicable water right holder), if the flows are above the applicable base flow standard, and if the applicable high flow pulse trigger level is met at the measurement point. The water right holder shall not divert or store water except during times that streamflow at the applicable measurement point exceeds the applicable high flow pulse trigger level and until either the applicable volume amount has passed the measurement point, or the duration time has passed since the high flow pulse trigger level occurred.(2) If the applicable high flow pulse flow trigger level does not occur in a season, then the water right holder need not stop storing or diverting to produce a high flow pulse. The water right holder is not required to release water lawfully stored to produce a high flow pulse.(3) Each season is independent of the preceding and subsequent seasons with respect to high flow pulse frequency.(e) A water right owner that has stored water in accordance with the terms and conditions of its water right, including any applicable environmental flow requirement in effect at the time the water was stored, may divert, release, or use this water, even if the applicable environmental flow requirement is not met at the time of the subsequent diversion, release, or use of that stored water.</content><note type="source"><p>Source Note: The provisions of this §298.275 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scC/s298.280"><num value="298.280">§298.280</num><heading>Environmental Flow Standards</heading><content>The following environmental flow standards are established for the following described measurement points: (1) Big Sandy Creek near Big Sandy, Texas, generally described as United States Geological Survey (USGS) gage 08019500, and more particularly described as Latitude 32° 36' 14"; Longitude 95° 05' 29".Attached Graphic(2) Sabine River near Gladewater, Texas, generally described as USGS gage 08020000, and more particularly described as Latitude 32° 31' 37"; Longitude 94° 57' 36".Attached Graphic(3) Sabine River near Beckville, Texas, generally described as USGS gage 08022040, and more particularly described as Latitude 32° 19' 38"; Longitude 94° 21' 12".Attached Graphic(4) Big Cow Creek near Newton, Texas, generally described as USGS gage 08029500, and more particularly described as Latitude 30° 49' 08"; Longitude 93° 47' 08".Attached Graphic(5) Sabine River near Ruliff, Texas generally described as USGS gage 08030500, and more particularly described as Latitude 30° 18' 13"; Longitude 93° 44' 37".Attached Graphic(6) Neches River at Neches, Texas, generally described as USGS gage 08032000, and more particularly described as Latitude 31° 53' 32"; Longitude 95° 25' 50".Attached Graphic(7) Neches River near Rockland, Texas, generally described as USGS gage 08033500, and more particularly described as Latitude 31° 01' 30"; Longitude 94° 23' 58".Attached Graphic(8) Angelina River, near Alto, Texas, generally described as USGS gage 08036500, and more particularly described as Latitude 31° 40' 10"; Longitude 94° 57' 24".Attached Graphic(9) Neches River at Evadale, Texas, generally described as USGS gage 08041000, and more particularly described as Latitude 30° 21' 20"; Longitude 94° 05' 35".Attached Graphic(10) Village Creek near Kountze, Texas, generally described as USGS gage 08041500, and more particularly described as Latitude 30° 23' 52"; Longitude 94° 15' 48".Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §298.280 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scC/s298.285"><num value="298.285">§298.285</num><heading>Water Right Permit Conditions</heading><content>(a) For water right permits with an authorization to store or divert more than 10,000 acre-feet per year in the Sabine and Neches river basins and to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the environmental flow standards of this subchapter.(b) For water right permits with an authorization to store or divert 10,000 acre-feet or less per year in the Sabine and Neches river basins and to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the environmental flow standards of this subchapter; however, no special conditions are necessary to preserve or pass high flow pulses.</content><note type="source"><p>Source Note: The provisions of this §298.285 adopted to be effective May 15, 2011, 36 TexReg 2908.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scC/s298.290"><num value="298.290">§298.290</num><heading>Schedule for Revision of Standards</heading><content>The adopted environmental flow standards or environmental flow set-asides for the Sabine and Neches Rivers, their associated tributaries, and Sabine Lake Bay may be revised by the commission through the rulemaking process. The Sabine and Neches basin and bay area stakeholder committee shall submit their review of the adopted environmental flow standards by September 1, 2013, and every five years thereafter. If the stakeholder committee recommends revisions to the adopted environmental flow standards, or, if the commission determines that revisions to the adopted environmental flow standards are appropriate at the time of the periodic review, the rulemaking process shall be undertaken in conjunction with the periodic review. Any final revised rules arising from a rulemaking undertaken in conjunction with any such periodic review shall be effective within one year after the deadline for the review of the adopted environmental flow standards. The rulemaking process shall include participation by a balanced representation of stakeholders having interests in the Sabine and Neches Rivers, their associated tributaries, and Sabine Lake Bay.</content><note type="source"><p>Source Note: The provisions of this §298.290 adopted to be effective May 15, 2011, 36 TexReg 2908; amended to be effective August 30, 2012, 37 TexReg 6629.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c298/scD"><num value="D">SUBCHAPTER D</num><heading>COLORADO AND LAVACA RIVERS, AND MATAGORDA AND LAVACA BAYS</heading><section identifier="/us/state/tx/tac/t30/p1/c298/scD/s298.300"><num value="298.300">§298.300</num><heading>Applicability and Purpose</heading><content>This subchapter contains the environmental flow standards for the Colorado and Lavaca Rivers, and Matagorda and Lavaca Bays. The provisions of this subchapter have control over any provisions of Subchapter A of this chapter (relating to General Provisions) that are inconsistent with this subchapter relating to environmental flow standards and regulation in the Colorado and Lavaca Rivers, and Matagorda and Lavaca Bays.</content><note type="source"><p>Source Note: The provisions of this §298.300 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scD/s298.305"><num value="298.305">§298.305</num><heading>Definitions</heading><content>The following words or phrases have the following meanings in this subchapter unless the context clearly indicates otherwise:(1) Annual average inflow--the long-term average annual volume of freshwater inflows at the most downstream point in the Colorado River Basin.(2) Annual strategy frequency--the frequencies at which specific levels of freshwater inflows occur and which are used for the sole purpose of providing additional freshwater inflows to Matagorda and Lavaca Bays through voluntary strategies.(3) Average condition--for all measurement points, the hydrologic condition that would occur approximately 50% of the time.(4) Dry condition--for all measurement points except those measurement points on the Colorado River below Lake Travis, the hydrologic condition that would occur approximately 20% of the time and represents periods when conditions are dry but not severe. For all measurement points on the Colorado River below Lake Travis, the hydrologic condition that would occur approximately 45% of the time and that is intended to represent periods when conditions are drier than average conditions but not severe.(5) Fall--for the measurement points on the Colorado River and its tributaries above Lake Travis, the period of time September through October, inclusive, and for all other measurement points, the period of time September through November, inclusive.(6) Fall inflow quantity--during any individual calendar year, the maximum freshwater inflow quantity, at the most downstream point in the Lavaca River Basin and at the most downstream point on Garcitas Creek in the Lavaca-Guadalupe Coastal Basin, occurring during any period of three consecutive months beginning in the months of August, September, or October.(7) Fall season quantity--the maximum freshwater inflow quantity, at the most downstream point in the Colorado River Basin, occurring during any three consecutive months during the period from August through December, inclusive.(8) Intervening inflow quantity--the quantity of freshwater inflows, at the most downstream point in the Lavaca River Basin and at the most downstream point on Garcitas Creek in the Lavaca-Guadalupe Coastal Basin, occurring during the remaining six months of the calendar year, that were not included in the Fall Inflow or Spring Inflow for that calendar year.(9) Intervening season quantity--the quantity of freshwater inflows, at the most downstream point in the Colorado River Basin, occurring during the six months of the calendar year that are not counted towards the fall season quantity or the spring season quantity for that year.(10) Inflow regime level--one of the annual freshwater inflow patterns, at the most downstream point in the Colorado River Basin for Matagorda Bay, that includes a spring season quantity, a fall season quantity, and an intervening season quantity as described in Figure: 30 TAC §298.330(a)(2) of this title (relating to Environmental Flow Standards), or at the most downstream point in the Lavaca River Basin and the most downstream point on Garcitas Creek in the Lavaca-Guadalupe Coastal Basin for Lavaca Bay, that includes a spring inflow quantity, a fall inflow quantity, and an intervening inflow quantity as described in Figure 30: TAC §298.330(c) of this title.(11) Long-Term annual strategy quantity--the annual average volume of freshwater inflows, which is used for the sole purpose of providing additional freshwater inflows to Matagorda Bay through voluntary strategies.(12) Modeled annual frequency--the frequency at which specific levels of freshwater inflows occur in the commission's water availability models for the Colorado and Lavaca river basins and the Colorado-Lavaca and Lavaca-Guadalupe coastal basins at the time the first water right application subject to this subchapter is processed.(13) Monthly threshold inflow--the total volume of freshwater inflows, at the most downstream point in the Colorado River Basin, in any calendar month.(14) Severe condition--for all measurement points, the hydrologic condition that would occur approximately 5% of the time and that is intended to represent the driest periods.(15) Spring--the period of time March through June, inclusive.(16) Spring inflow quantity--during any individual calendar year, the maximum freshwater inflow quantity, at the most downstream point in the Lavaca River Basin and at the most downstream point on Garcitas Creek in the Lavaca-Guadalupe Coastal Basin, occurring during any period of three consecutive months beginning in the months of February, March, April, or May.(17) Spring season quantity--during any individual calendar year, the maximum freshwater inflow quantity, at the most downstream point in the Colorado River Basin, occurring during any three consecutive months during the period from January through July, inclusive.(18) Sound ecological environment--characterized by flow regimes that support existing biological communities in rivers, riparian, bay, and estuary habitats.(19) Summer--the period of time July through August, inclusive.(20) Wet condition--for all measurement points except those measurement points on the Colorado River below Lake Travis, the hydrologic condition that would occur approximately 25% of the time and that is intended to represent the wettest conditions.(21) Winter--for the measurement points on the Colorado River above Lake Travis, the period of time November through February, inclusive, and for all other measurement points, the period of time December through February, inclusive.</content><note type="source"><p>Source Note: The provisions of this §298.305 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scD/s298.310"><num value="298.310">§298.310</num><heading>Findings</heading><content>(a) The Colorado and Lavaca Rivers and their associated tributaries and Matagorda and Lavaca Bays and their associated estuaries are healthy and sound ecological environments.(b) For the Colorado and Lavaca Rivers, and their associated tributaries, the commission finds that these sound ecological environments can best be maintained by a set of flow standards that implement a schedule of flow quantities that contain subsistence flow, base flow, and high flow pulses at defined measurement points. Minimum flow levels for these components will vary by season and by year since the amount of precipitation and, therefore, whether a system is in subsistence or base flow conditions, will vary from year to year and within a year from season to season, and the number of pulses protected will also vary with the amount of precipitation.(c) For Matagorda and Lavaca Bays, the commission finds that the sound ecological environment of Matagorda and Lavaca Bays can best be maintained by a set of freshwater inflow standards that include variable freshwater inflow quantities and that incorporate inflow and frequency targets at which specific levels of freshwater inflows occur, which are used for the sole purpose of providing additional freshwater inflows to Matagorda and Lavaca Bays through voluntary strategies.(d) For East Matagorda Bay, the commission does not adopt environmental flow standards but finds that the sound ecological environment of East Matagorda Bay can be maintained by avoiding further reduction of freshwater inflows, to the extent those reductions can be avoided, and that strategies to provide additional freshwater inflows to East Matagorda Bay should be pursued.</content><note type="source"><p>Source Note: The provisions of this §298.310 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scD/s298.315"><num value="298.315">§298.315</num><heading>Set-Asides and Standards Priority Date</heading><content>The priority date for the environmental flow standards and set-asides established by this subchapter is March 1, 2011. The priority date for the environmental flow standards will be used in the water availability determination for a new appropriation or for an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted, and has no other purpose.</content><note type="source"><p>Source Note: The provisions of this §298.315 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scD/s298.320"><num value="298.320">§298.320</num><heading>Calculation of Hydrologic Conditions</heading><content>(a) For new water right authorizations which increase the amount of water authorized to be stored, taken, or diverted as described in §298.10 of this title (relating to Applicability), the determination of the hydrologic condition for a particular season shall be determined once per season. The conditions present on the last day of the month of the preceding season will determine the hydrologic condition for the following season. For each measurement point specified in this section, either cumulative streamflow for the previous 12 months, combined storage in major reservoirs, or reservoir elevation will determine the hydrologic condition, as described in subsections (b) - (d) of this section. (b) For measurement points located on the Colorado River above Lake Travis and tributaries of the Colorado River, and in the Colorado-Lavaca and the Lavaca-Guadalupe Coastal Basins, cumulative streamflow for the preceding 12 months and the corresponding hydrologic conditions are: Attached Graphic(c) For measurement points located on the Colorado River below Lake Travis, the combined reservoir storage in Lakes Travis and Buchanan and the corresponding hydrologic conditions are: Attached Graphic(d) For measurement points located in the Lavaca River Basin, the reservoir elevation of Lake Texana and the corresponding hydrologic conditions are: Attached Graphic(e) For purposes of water availability determinations, for measurement points on the Colorado River above Lake Travis and tributaries of the Colorado River, and in the Lavaca River Basin and the Colorado-Lavaca and Lavaca-Guadalupe Coastal Basins, hydrologic conditions used in the commission's water availability models shall be calculated such that severe conditions occur approximately 5% of the time, dry conditions occur approximately 20% of the time, average conditions occur approximately 50% of the time, and wet conditions occur approximately 25% of the time. (f) For purposes of water availability determinations, for measurement points on the Colorado River below Lake Travis, hydrologic conditions used in the commission's water availability models shall be calculated such that severe conditions occur approximately 5% of the time, dry conditions occur approximately 45% of the time, and average conditions occur approximately 50% of the time. (g) The hydrologic condition indicators set out in subsections (b) - (d) of this section govern the operations of permits subject to this subchapter during the initial period, of not longer than ten years, until the environmental flow standards in this subchapter are reevaluated. Those indicators were calculated to achieve compliance with the percentages of time stated in subsections (e) and (f) of this section. The hydrologic condition indicators set out in subsections (b) - (d) of this section will be recalculated, no less frequently than once every ten years, in order to achieve, to the greatest extent possible, compliance with the percentages of time stated in subsections (e) and (f) of this section.</content><note type="source"><p>Source Note: The provisions of this §298.320 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scD/s298.325"><num value="298.325">§298.325</num><heading>Schedule of Flow Quantities</heading><content>(a) Schedule of flow quantities. The environmental flow standards adopted by this subchapter constitute a schedule of flow quantities made up of subsistence flow, base flow, and high flow pulses. Environmental flow standards are established at 21 separate measurement locations in §298.330 of this title (relating to Environmental Flow Standards).(b) Subsistence flow. The applicable subsistence flow standard varies depending on the seasons as described in §298.305 of this title (relating to Definitions). For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, the water right holder may not store or divert water under severe hydrologic conditions, unless the flow at the measurement point is above the applicable subsistence flow standard for that point. During severe hydrologic conditions, if the flow at the measurement point is above the subsistence flow standard but below the applicable dry condition base flow standard, then the water right holder may divert or store water according to its permit, subject to senior and superior water rights, as long as the flow at the measurement point does not fall below the applicable subsistence flow standard.(c) Base flow. The applicable base flow level varies depending on the seasons as described in §298.305 of this title and the hydrologic condition described in §298.320 of this title (relating to Calculation of Hydrologic Conditions). For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, the water right holder is subject to the base flow standard for the hydrologic condition prevailing at that time. For all measurement points except those on the Colorado River below Lake Travis, the water right will be subject to one of the following: a dry, an average, or a wet base flow standard. For all measurement points on the Colorado River below Lake Travis, the water right will be subject to either a dry or an average base flow standard. For all measurement points, the dry base flow standard applies during severe hydrologic conditions. For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, when the flow at the applicable measurement point is above the applicable base flow standard, but below any applicable high flow pulse levels, the water right holder may store or divert water according to its permit, subject to senior and superior water rights, as long as the flow at the applicable measurement point does not fall below the applicable base flow standard for that hydrologic condition.(d) High flow pulses. High flow pulses are relatively short-duration, high flows within the watercourse that occur during or immediately following a storm event.(1) For measurement points on the Colorado River below Lake Travis, two pulses per season, one pulse per 18 months, and one pulse per two years are to be passed (i.e., no storage or diversion by an applicable water right holder), if applicable, and as described in §298.330 of this title, if streamflows are above the applicable subsistence or base flow standard, and if the applicable high flow pulse trigger level is met at the applicable measurement point. The water right holder shall not divert or store water until the daily average flow at the applicable measurement point equals at least the high flow pulse trigger level on consecutive days equaling the duration time except during times that streamflow at the applicable measurement point exceeds the applicable high flow pulse trigger level.(2) For measurement points on the Colorado River above Lake Travis, tributaries of the Colorado River, and in the Lavaca River Basin and the Colorado-Lavaca and Lavaca-Guadalupe Coastal Basins, one or two pulses per season and one pulse per year are to be passed (i.e., no storage or diversion by an applicable water right holder), if applicable, and as described in §298.330 of this title, if streamflows are above the applicable subsistence or base flow standard, and if the applicable high flow pulse trigger level is met at the applicable measurement point. The water right holder shall not divert or store water until either the applicable volume amount has passed the applicable measurement point or the duration time has passed since the high flow pulse trigger level occurred except during times that streamflow at the applicable measurement point exceeds the applicable high flow pulse trigger level.(3) If the applicable high flow pulse trigger level does not occur in a season, then the water right holder need not stop storing or diverting water to produce a high flow pulse. The water right holder is not required to release water lawfully stored to produce a high flow pulse.(4) Each season is independent of the preceding and subsequent seasons with respect to high flow pulse frequency.(5) High flow pulses are independent of the hydrologic conditions set out in §298.320 of this title.(6) If a high flow pulse requirement for a one-per-season pulse is satisfied for a particular season, one of the two-per-season pulse requirements is also considered to be satisfied. When a pulse flow requirement for an annual pulse is satisfied in a particular season, the one-per-season pulse requirement and one of the two-per-season pulse requirements are also considered to be satisfied.(e) Stored water. A water right owner that has stored water in accordance with the terms and conditions of its water right, including any applicable environmental flow requirement in effect at the time the water was stored, may divert, release, or use this water, even if the applicable environmental flow requirement is not met at the time of the subsequent diversion, release, or use of that stored water.</content><note type="source"><p>Source Note: The provisions of this §298.325 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scD/s298.330"><num value="298.330">§298.330</num><heading>Environmental Flow Standards</heading><content>(a) A water right application in the Colorado River Basin which increases the amount of water authorized to be stored, taken or diverted as described in §298.10 of this title (relating to Applicability) shall not cause or contribute to an impairment of the inflow regimes as described in the figure in this subsection. Impairment of the inflow regime shall be evaluated as part of the water availability determination for a new water right or amendment that is subject to this subchapter. For purposes of this subsection, impairment would occur if the application, when considered in combination with any authorizations subject to this subchapter, which were issued prior to this application, would: (1) decrease the annual average freshwater inflow, at the most downstream point in the Colorado River Basin, below 60% of the long-term annual strategy quantity listed in Figure: 30 TAC §298.330(a)(2); (2) decrease the modeled annual frequency of any inflow regime; or, Attached Graphic(3) decrease the monthly inflow quantity to Matagorda Bay below 15,000 acre-feet per month. (b) To the extent that strategies are implemented through a water right permit or amendment to help meet the freshwater inflow standards for Matagorda Bay, a water right application in the Colorado River Basin which increases the amount of water authorized to be stored, taken, or diverted as described in §298.10 of this title shall not reduce the long-term annual strategy quantity, the modeled annual frequency, or the monthly threshold inflow for any inflow regime level listed in Figure: 30 TAC §298.330(a)(2) below the long term annual strategy quantity, modeled annual frequency, or the monthly threshold inflow that would occur in the commission's water availability model with the permitted strategy or strategies in place. (c) A water right application in the Lavaca River basin, or Garcitas Creek located in the Lavaca-Guadalupe Coastal Basin, which increases the amount of water authorized to be stored, taken or diverted as described in §298.10 of this title, shall not cause or contribute to an impairment of the inflow regimes as described in the figure in this subsection. Impairment of the inflow regime shall be evaluated as part of the water availability determination for a new water right or amendment that is subject to this subchapter. For purposes of this subsection, impairment would occur if the application, when considered in combination with any prior authorizations subject to this subchapter, would decrease the modeled annual frequency of any inflow regime level. Attached Graphic(d) To the extent that strategies are implemented through a water right permit or amendment to help meet the freshwater inflow standards for Lavaca Bay, a water right application in the Lavaca River Basin, or on Garcitas Creek in the Lavaca-Guadalupe Coastal Basin, which increases the amount of water authorized to be stored, taken, or diverted as described in §298.10 of this title, shall not reduce the modeled annual frequency in the commission's water availability model for any inflow regime level described in Figure: 30 TAC §298.330(c) below the frequency that would occur with the permitted strategy or strategies in place. (e) The following environmental flow standards are established for the following described measurement points: (1) Colorado River above Silver, Texas, generally described as United States Geological Survey (USGS) gage 08123850, and more specifically described as Latitude 32 degrees, 03 minutes, 13 seconds; Longitude 100 degrees, 45 minutes, 42 seconds. Attached Graphic(2) Colorado River near Ballinger, Texas, generally described as USGS gage 08126380, and more specifically described as Latitude 31 degrees, 42 minutes, 55 seconds; Longitude 100 degrees, 01 minutes, 34 seconds. Attached Graphic(3) Colorado River near San Saba, Texas, generally described as USGS gage 08147000, and more specifically described as Latitude 31 degrees, 13 minutes, 04 seconds; Longitude 98 degrees, 33 minutes, 51 seconds. Attached Graphic(4) Elm Creek at Ballinger, Texas, generally described as USGS gage 08127000, and more specifically described as Latitude 31 degrees, 44 minutes, 57 seconds; Longitude 99 degrees, 56 minutes, 51 seconds. Attached Graphic(5) Concho River at Paint Rock, Texas, generally described as USGS gage 08136500, and more specifically described as Latitude 31 degrees, 30 minutes, 57 seconds; Longitude 99 degrees, 55 minutes, 09 seconds. Attached Graphic(6) South Concho River at Christoval, Texas, generally described as USGS gage 08128000, and more specifically described as Latitude 31 degrees, 11 minutes, 13 seconds; Longitude 100 degrees, 30 minutes, 06 seconds. Attached Graphic(7) Pecan Bayou near Mullin, Texas, generally described as USGS gage 08143600, and more specifically described as Latitude 31 degrees, 31 minutes, 02 seconds; Longitude 98 degrees, 44 minutes, 25 seconds. Attached Graphic(8) San Saba River at San Saba, Texas, generally described as USGS gage 08146000, and more specifically described as Latitude 31 degrees, 12 minutes, 47 seconds; Longitude 98 degrees, 43 minutes, 09 seconds. Attached Graphic(9) Llano River at Llano, Texas, generally described as USGS gage 08151500, and more specifically described as Latitude 30 degrees, 45 minutes, 04 seconds; Longitude 98 degrees, 40 minutes, 10 seconds. Attached Graphic(10) Pedernales River near Johnson City, Texas, generally described as USGS gage 08153500, and more specifically described as Latitude 30 degrees, 17 minutes, 30 seconds; Longitude 98 degrees, 23 minutes, 57 seconds. Attached Graphic(11) Onion Creek near Driftwood, Texas, generally described as USGS gage 08158700, and more specifically described as Latitude 30 degrees, 04 minutes, 58 seconds; Longitude 98 degrees, 00 minutes, 27 seconds. Attached Graphic(12) Colorado River at Bastrop, Texas, generally described as USGS gage 08159200, and more specifically described as Latitude 30 degrees, 06 minutes, 16 seconds; Longitude 97 degrees, 19 minutes, 09 seconds. (A) United States Geological Survey Gage 08159200, Colorado River at Bastrop. Attached Graphic(B) United States Geological Survey Gage 08159200, Colorado River at Bastrop. Attached Graphic(13) Colorado River at Columbus, Texas, generally described as USGS gage 08161000, and more specifically described as Latitude 29 degrees, 42 minutes, 22 seconds; Longitude 96 degrees, 32 minutes, 12 seconds. (A) United States Geological Survey Gage 08161000, Colorado River at Columbus. Attached Graphic(B) United States Geological Survey Gage 08161000, Colorado River at Columbus. Attached Graphic(14) Colorado River at Wharton, Texas, generally described as USGS gage 08162000, and more specifically described as Latitude 29 degrees, 18 minutes, 32 seconds; Longitude 96 degrees, 06 minutes, 13 seconds. (A) United States Geological Survey Gage 08162000, Colorado River at Wharton. Attached Graphic(B) United States Geological Survey Gage 08162000, Colorado River at Wharton. Attached Graphic(15) Lavaca River near Edna, Texas, generally described as USGS gage 08164000, and more specifically described as Latitude 28 degrees, 57 minutes, 35 seconds; Longitude 96 degrees, 41 minutes, 10 seconds. Attached Graphic(16) Navidad River at Strane Park near Edna, Texas, generally described as USGS gage 08164390, and more specifically described as Latitude 29 degrees, 03 minutes, 55 seconds; Longitude 96 degrees, 40 minutes, 26 seconds. Attached Graphic(17) Sandy Creek near Ganado, Texas, generally described as USGS gage 08164450, and more specifically described as Latitude 29 degrees, 09 minutes, 36 seconds; Longitude 96 degrees, 32 minutes, 46 seconds. Attached Graphic(18) East Mustang Creek near Louise, Texas, generally described as USGS gage 08164504, and more specifically described as Latitude 29 degrees, 04 minutes, 14 seconds; Longitude 96 degrees, 25 minutes, 01 seconds. Attached Graphic(19) West Mustang Creek near Ganado, Texas, generally described as USGS gage 08164503, and more specifically described as Latitude 29 degrees, 04 minutes, 18.69 seconds; Longitude 96 degrees, 28 minutes, 04.90 seconds. Attached Graphic(20) Garcitas Creek near Inez, Texas, generally described as USGS gage 08164600, and more specifically described as Latitude 28 degrees, 53 minutes, 28 seconds; Longitude 96 degrees, 49 minutes, 08 seconds. Attached Graphic(21) Tres Palacios River near Midfield, Texas, generally described as USGS gage 08162600, and more specifically described as Latitude 28 degrees, 55 minutes, 40 seconds; Longitude 96 degrees, 10 minutes, 15 seconds. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §298.330 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scD/s298.335"><num value="298.335">§298.335</num><heading>Water Right Permit Conditions</heading><content>(a) For water right permits with an authorization to store or divert water from the Colorado River above Lake Travis, tributaries of the Colorado River, the Lavaca River Basin, and the Colorado-Lavaca and Lavaca-Guadalupe Coastal Basins, except for water right permits located below Lake Travis on the Colorado River, and to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the environmental flow standards of this subchapter.(b) For water right permits with an authorization to divert at a rate greater than 500 cubic feet per second (cfs) or to store more than 2,500 acre-feet in an on-channel reservoir, on the Colorado River below Lake Travis, and to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect all pulse flow requirements up to the one year pulse flow requirement except as specified in subsections (c) and (d) of this section.(c) For water right permits with an authorization to divert at a rate greater than 800 cfs or to store more than 2,500 acre-feet in an on-channel reservoir, on the Colorado River below Lake Travis, and to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to prevent impairment of the one per 18-month pulse flow requirement. Impairment of the one per 18 month pulse flow requirement would occur if the permit, in combination with other permits subject to this subchapter, that are issued after the effective date of this subchapter, would reduce the frequency of occurrence or the average volume of the one per 18-month pulse by more than 10% based on the period of record of the water availability model in effect at the time the first permit subject to this subchapter is considered.(d) For water right permits with an authorization to divert at a rate greater than 2,700 cfs or to store more than 2,500 acre-feet in an on-channel reservoir, on the Colorado River below Lake Travis, and to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the one per two-year pulse flow requirement.(e) For water right permits with an authorization to divert at a rate less than 500 cfs or to store less than 2,500 acre-feet in an on-channel reservoir, on the Colorado River below Lake Travis, and to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the environmental flow standards of this subchapter; however, no special conditions are necessary to preserve or pass high flow pulses.</content><note type="source"><p>Source Note: The provisions of this §298.335 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scD/s298.340"><num value="298.340">§298.340</num><heading>Schedule for Revision of Standards</heading><content>The environmental flow standards or environmental flow set-asides adopted in this subchapter for the Colorado and Lavaca River Basins, the Colorado-Lavaca and Lavaca-Guadalupe Coastal Basins, and Matagorda and Lavaca Bays may be revised by the commission through the rulemaking process. The final revised rules shall be effective no sooner than ten years from the effective date of this rule, unless the Colorado and Lavaca Basin and Bay Area Stakeholder Committee submits a work plan approved by the Environmental Flows Advisory Group under Texas Water Code, §11.02362(p), that provides for a periodic review to occur more frequently. The rulemaking process shall include participation by a balanced representation of stakeholders having interests in the Colorado and Lavaca River Basins, the Colorado-Lavaca and Lavaca-Guadalupe Coastal Basins, and Matagorda and Lavaca Bays.</content><note type="source"><p>Source Note: The provisions of this §298.340 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c298/scE"><num value="E">SUBCHAPTER E</num><heading>GUADALUPE, SAN ANTONIO, MISSION, AND ARANSAS RIVERS, AND MISSION, COPANO, ARANSAS, AND SAN ANTONIO BAYS</heading><section identifier="/us/state/tx/tac/t30/p1/c298/scE/s298.350"><num value="298.350">§298.350</num><heading>Applicability and Purpose</heading><content>This subchapter contains the environmental flow standards for the Guadalupe, San Antonio, Mission, and Aransas Rivers, their associated tributaries, and Mission, Copano, Aransas, and San Antonio Bays. The provisions of this subchapter control over any provisions of Subchapter A of this chapter (relating to General Provisions) that are inconsistent with this subchapter relating to environmental flow standards and regulation in the Guadalupe, San Antonio, Mission, and Aransas Rivers, their associated tributaries, and Mission, Copano, Aransas, and San Antonio Bays.</content><note type="source"><p>Source Note: The provisions of this §298.350 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scE/s298.355"><num value="298.355">§298.355</num><heading>Definitions</heading><content>The following words or phrases have the following meanings in this subchapter unless the context clearly indicates otherwise:(1) Average condition--for all measurement points for which a hydrologic condition is applicable, the hydrologic condition that would occur approximately 50% of the time and that is intended to represent periods that are neither dry nor wet.(2) Dry condition--for all measurement points for which a hydrologic condition is applicable, the hydrologic condition that would occur approximately 25% of the time and that is intended to represent the driest periods.(3) Fall--the period of time October through December, inclusive.(4) Inflow regime level--a freshwater inflow pattern, at the most downstream point in the Guadalupe and San Antonio River Basins for San Antonio Bay, or at the most downstream points in the San Antonio-Nueces Coastal Basin for the Mission-Aransas Estuary, that includes quantities and frequencies.(5) Modeled permitting frequency--the frequencies at which specific volumes of freshwater inflows occur in the commission's water availability models for the river basins included in this subchapter.(6) Spring--for the measurement points listed in §298.330(c) of this title (relating to Environmental Flow Standards), the period of time April through June, inclusive.(7) Sound ecological environment--maintains, to some reasonable level, the physical, chemical, and biological attributes and processes of the natural system.(8) Strategy target frequency--the frequencies at which specific volumes of freshwater inflows occur, and which are used for the sole purpose of providing additional freshwater inflows to the bays and estuaries included in this subchapter through voluntary strategies.(9) Summer--for the measurement points listed in §298.330(c) of this title (relating to Environmental Flow Standards), the period of time July through September, inclusive.(10) Time period--for certain measurement points in the San Antonio River Basin, the period of time specifically listed in the column labeled "time-period" in Figures: 30 TAC §298.380(c)(12)(B), (13)(B), (14)(B), and (15)(B) of this title (relating to Environmental Flow Standards).(11) Wet condition--for all measurement points for which a hydrologic condition is applicable, the hydrologic condition that would occur approximately 25% of the time and that is intended to represent the wettest period.(12) Winter--the period of time January through March, inclusive.</content><note type="source"><p>Source Note: The provisions of this §298.355 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scE/s298.360"><num value="298.360">§298.360</num><heading>Findings</heading><content>(a) The Guadalupe, San Antonio, Mission, and Aransas Rivers, their associated tributaries, Mission, Copano, Aransas, and San Antonio Bays, and the associated estuaries are substantially sound ecological environments.(b) For the Guadalupe, San Antonio, Mission, and Aransas Rivers, and their associated tributaries, the commission finds that these sound ecological environments can best be maintained by a set of flow standards that implement a schedule of flow quantities that contain subsistence flow, base flow, and high flow pulses at defined measurement points. Minimum flow levels for these components will vary by season and by year since the amount of precipitation and, therefore, whether a system is in subsistence or base flow conditions, will vary from year to year and within a year from season to season, and the number of pulses protected will also vary with the amount of precipitation.(c) For Mission, Copano, Aransas, and San Antonio Bays, the commission finds that the sound ecological environment of these bays can best be maintained by a set of freshwater inflow standards that include variable freshwater inflow quantities and that incorporate inflow and frequency targets at which specific levels of freshwater inflow occur, which are used for the sole purpose of providing additional freshwater inflows to Mission, Copano, Aransas, and San Antonio Bays through voluntary strategies.</content><note type="source"><p>Source Note: The provisions of this §298.360 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scE/s298.365"><num value="298.365">§298.365</num><heading>Set-Asides and Standards Priority Date</heading><content>The priority date for the environmental flow standards and set-asides established by this subchapter is March 1, 2011. The priority date for the environmental flow standards will be used in the water availability determination for a new appropriation or for an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted and has no other purpose.</content><note type="source"><p>Source Note: The provisions of this §298.365 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scE/s298.370"><num value="298.370">§298.370</num><heading>Calculation of Hydrologic Conditions</heading><content>(a) For new water right authorizations in the San Antonio River Basin and the San Antonio-Nueces Coastal Basin which increase the amount of water authorized to be stored, taken, or diverted as described in §298.10 of this title (relating to Applicability), the determination of the hydrologic condition for a particular season shall be determined once per season. The conditions present on the last day of the month of the preceding season will determine the hydrologic condition for the following season for the applicable measurement point. For each measurement point specified in the applicable river or coastal basin, cumulative streamflow for the previous 12 months will determine the hydrologic condition.(b) For purposes of permit special conditions related to hydrologic conditions, for water right applications in the San Antonio River Basin and the San Antonio-Nueces Coastal Basin, which increase the amount of water to be stored, taken, or diverted, the hydrologic condition shall be calculated using the full period of record for the United States Geological Survey (USGS) gage at each measurement point such that dry conditions occur approximately 25% of the time, average conditions occur approximately 50% of the time, and wet conditions occur approximately 25% of the time.(c) For purposes of water availability determinations, for water right permit applications in the San Antonio River Basin and the San Antonio-Nueces Coastal Basin, which increase the amount of water to be stored, taken, or diverted, hydrologic conditions used in the commission's water availability models shall be calculated such that dry conditions occur approximately 25% of the time, average conditions occur approximately 50% of the time, and wet conditions occur approximately 25% of the time, based on the period of record and simulated flows of the applicable water availability model.</content><note type="source"><p>Source Note: The provisions of this §298.370 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scE/s298.375"><num value="298.375">§298.375</num><heading>Schedule of Flow Quantities</heading><content>(a) Schedule of flow quantities. The environmental flow standards adopted by this subchapter constitute a schedule of flow quantities made up of subsistence flow, base flow, and high flow pulses. Environmental flow standards are established for 16 measurement points in §298.380 of this title (relating to Environmental Flow Standards) and this section.(b) Subsistence flow. The applicable subsistence flow standard varies depending on the seasons as described in §298.355 of this title (relating to Definitions). For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, the water right holder may not store or divert water, unless the flow at the measurement point is above the applicable subsistence flow standard for that point. For measurement points in the Guadalupe River Basin, if the flow at the applicable measurement point is above the subsistence flow standard but below the base flow standard, then the water right holder must allow the applicable subsistence flow, plus 50% of the difference between measured streamflow and the applicable subsistence flow, to pass its measurement point and any remaining flow may be diverted or stored, according to its permit, subject to senior and superior water rights, as long as the flow at the measurement point does not fall below the applicable subsistence flow standard. For measurement points in the San Antonio River Basin and the San Antonio-Nueces Coastal Basin, during dry hydrologic conditions, if the flow at the applicable measurement point is above the subsistence flow standard but below the applicable dry base flow standard, then the water right holder must allow the applicable subsistence flow, plus 50% of the difference between measured streamflow and the applicable subsistence flow, to pass its measurement points and any remaining flow may be diverted or stored, according to its permit, subject to senior and superior water rights, as long as the flow at the measurement point does not fall below the applicable subsistence flow standard.(c) Base flow. The applicable base flow level varies depending on the seasons as described in §298.355 of this title, and the hydrologic condition described in §298.370 of this title (relating to Calculation of Hydrologic Conditions) for river and coastal basins to which a hydrologic condition applies. For a water right holder in the San Antonio River Basin or the San Antonio-Nueces Coastal Basin, to which an environmental flow standard applies, at a measurement point that applies to the water right, the water right holder is subject to the base flow standard for the hydrologic condition prevailing at that time, i.e., the water right holder will be subject to one of the following: a dry, an average, or a wet base flow standard. For a water right holder in the Guadalupe River Basin, to which an environmental flow standard applies, at a measurement point that applies to a water right, the water right holder is subject to a base flow standard. For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, when the flow at the applicable measurement point is above the applicable base flow standard, but below any applicable high flow pulse trigger levels, the water right holder may store or divert water according to its permit, subject to senior and superior water rights, as long as the flow at the applicable measurement point does not fall below the applicable base flow standard.(d) High flow pulses. High flow pulses are relatively short-duration, high flows within the watercourse that occur during or immediately following a storm event.(1) For measurement points in the Guadalupe River Basin, one or two pulses per season are to be passed (i.e., no storage or diversion by an applicable water right holder), if applicable, and as described in §298.380 of this title, if the flows are above the applicable subsistence or base flow standard, and if the applicable high flow pulse trigger level is met at the applicable measurement point. The water right holder shall not divert or store water except during times that streamflow at the applicable measurement point exceeds the applicable high flow pulse trigger level and until either the applicable volume amount has passed the measurement point or the applicable duration time has passed since the high flow pulse trigger level occurred.(2) For measurement points in the San Antonio River Basin and the San Antonio-Nueces Coastal Basin, one, two, or three pulses per season are to be passed (i.e., no storage or diversion by an applicable water right holder), if applicable, and as described in §298.380 of this title, if the flows are above the applicable base flow standard, and if the applicable high flow pulse trigger level is met at the applicable measurement point. For the measurement points described in §298.380(c)(12) - (15) of this title, the water right holder shall not divert or store water until the daily average flow at the applicable measurement point equals at least the large high flow pulse trigger level on consecutive days equaling the duration time, except during times that streamflow at the applicable measurement point exceeds the applicable high flow pulse trigger level. For all other measurement points in the San Antonio River Basin and the San Antonio-Nueces Coastal Basin and for small seasonal pulses at the measurement points described in §298.380(c)(12) - (15) of this title, the water right holder shall not divert or store water except during times that streamflow at the applicable measurement point exceeds the applicable high flow pulse trigger level and until either the applicable volume amount has passed the measurement point or the duration time has passed since the high flow pulse trigger level occurred.(3) If the applicable high flow pulse flow trigger level does not occur in a season, then the water right holder need not stop storing or diverting to produce a high flow pulse. The water right holder is not required to release water lawfully stored to produce a high flow pulse.(4) Each season is independent of the preceding and subsequent seasons with respect to high flow pulse frequency and each time-period is independent of each other time-period with respect to high flow pulse frequency.(5) High flow pulses are independent of the hydrologic conditions set out in §298.370 of this title, for measurement points for which a hydrologic condition is applicable. For all other measurement points, high flow pulses are applicable under both subsistence and base flow conditions.(6) For measurement points in the Guadalupe River Basin, the San Antonio River Basin and the San Antonio-Nueces Coastal Basin, except those described in §298.380(c)(12) - (15) of this title, if a pulse flow requirement for a large seasonal pulse is satisfied for a particular season, one of the smaller pulse requirements is also considered to be satisfied. For measurement points described in §298.380(c)(12) - (15) of this title, if a pulse flow requirement for a large seasonal pulse is satisfied, all smaller pulse requirements for the applicable season are also considered to be satisfied.(e) Stored water. A water right owner that has stored water in accordance with the terms and conditions of its water right, including any applicable environmental flow requirement in effect at the time the water was stored, may divert, release, or use this water, even if the applicable environmental flow requirement is not met at the time of the subsequent diversion, release, or use of that stored water.</content><note type="source"><p>Source Note: The provisions of this §298.375 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scE/s298.380"><num value="298.380">§298.380</num><heading>Environmental Flow Standards</heading><content>(a) A water right application in the Guadalupe and San Antonio River Basins and the San Antonio-Nueces Coastal Basin, which increases the amount of water authorized to be stored, taken, or diverted as described in §298.10 of this title (relating to Applicability), shall not cause or contribute to an impairment of the inflow regimes as described in the figures in this subsection. Impairment of the inflow regime shall be evaluated as part of the water availability determination for a new water right or amendment that is subject to this subchapter. For purposes of this subsection, impairment would occur if the application, when considered in combination with any authorizations subject to this subchapter, which were issued prior to this application, would impair the modeled permitting frequency of any inflow regime by more than the values set out in paragraphs (3)(A) - (C) and (4)(A) - (C) of this subsection. (1) Impairment to the modeled permitting frequency shall be calculated individually for each inflow regime level in Figure: 30 TAC §298.380(a)(3) and Figure: 30 TAC §298.380(a)(4) for which a specific frequency is identified at the most downstream point in the water availability model, which represents inflows to San Antonio Bay. (2) Impairment is calculated by addition or subtraction of the values set out in paragraphs (3)(A) - (C) and (4)(A) - (C) of this subsection, except that impairment of inflow regime Spring 4 and Spring 5 combined shall be calculated as set out in paragraph (3)(C) of this subsection. (3) Bay and Estuary Freshwater Inflow Standards for the San Antonio Bay System for the Spring Season. Attached Graphic(A) The modeled permitting frequencies for inflow regimes Spring 1, Spring 2, and Spring 2 and Spring 3 combined, as described in Figure: 30 TAC §298.380(a)(3), and calculated as a percentage of total years, shall not be decreased by more than 5%. (B) The modeled permitting frequencies for the inflow regime Spring 6, as described by Figure: 30 TAC §298.380(a)(3), and calculated as a percentage of total years, shall not be increased by more than 8%. (C) The modeled permitting frequency for inflow regime Spring 4 and Spring 5 combined, as described in Figure: 30 TAC §298.380(a)(3), and calculated as a percentage of Spring 5 years to the total combined years, shall not be increased to more than 67% of the total years. (4) Bay and Estuary Freshwater Inflow Standards for the San Antonio Bay System for the Summer Season. Attached Graphic(A) The modeled permitting frequencies for inflow regimes Summer 1, Summer 2, and Summer 1 and Summer 2 combined, as described in Figure: 30 TAC §298.380(a)(4), and calculated as a percentage of total years, shall not be decreased by more than 5%. (B) The modeled permitting frequencies for the inflow regime Summer 7, as described by Figure: 30 TAC §298.380(a)(4), and calculated as a percentage of total years, shall not be increased by more than 8%. (C) The modeled permitting frequency for inflow regime Summer 4 and Summer 5 combined, as described in Figure: 30 TAC §298.380(a)(4), and calculated as a percentage of Summer 5 years to total combined years, shall not be increased to more than 10%. (5) Bay and Estuary Freshwater Inflow Standards for Mission and Aransas Bays for the Summer Season. Attached Graphic(b) To the extent that strategies are implemented through a water rights permit or amendment to help meet the freshwater inflow standards for San Antonio, Mission, Aransas, and Copano Bays, a water right application in the Guadalupe and San Antonio River Basins and the San Antonio-Nueces Coastal Basin, which increases the amount of water authorized to be stored, taken or diverted as described in §298.10 of this title, shall not reduce the modeled permitting frequency for any inflow regime level, listed in Figure: 30 TAC §298.380(a)(1), Figure: 30 TAC §298.380(a)(2), and Figure: 30 TAC §298.380(a)(3), below the level that would occur with the permitted strategy or strategies in place. (c) The following environmental flow standards are established for the following described measurement points: (1) Guadalupe River at Comfort, Texas, generally described as United States Geological Survey (USGS) gage 08167000, and more particularly described as Latitude 29 degrees, 57 minutes, 86 seconds; Longitude 98 degrees, 53 minutes, 49.80 seconds. Attached Graphic(2) Guadalupe River near Spring Branch, Texas, generally described as USGS gage 08167500, and more particularly described as Latitude 29 degrees, 51 minutes, 37 seconds; Longitude 98 degrees, 23 minutes, 00 seconds. Attached Graphic(3) Blanco River at Wimberley, Texas, generally described as USGS gage 08171000, and more particularly described as Latitude 29 degrees, 59 minutes, 39 seconds; Longitude 98 degrees, 05 minutes, 19 seconds. Attached Graphic(4) San Marcos River at Luling, Texas, generally described as USGS gage 08172000, and more particularly described as Latitude 29 degrees, 39 minutes, 58 seconds; Longitude 97 degrees, 39 minutes, 02 seconds. Attached Graphic(5) Plum Creek near Luling, Texas generally described as USGS gage 08173000, and more particularly described as Latitude 29 degrees, 41 minutes, 58 seconds; Longitude 97 degrees, 36 minutes, 12 seconds. Attached Graphic(6) Guadalupe River at Gonzales, Texas, generally described as USGS gage 08173900, and more particularly described as Latitude 29 degrees, 29 minutes, 03 seconds; Longitude 97 degrees, 27 minutes, 00 seconds. Attached Graphic(7) Sandies Creek near Westhoff, Texas, generally described as USGS gage 08175000, and more particularly described as Latitude 29 degrees, 12 minutes, 54 seconds; Longitude 97 degrees, 26 minutes, 57 seconds.Attached Graphic(8) Guadalupe River at Cuero, Texas, generally described as USGS gage 08175800, and more particularly described as Latitude 29 degrees, 05 minutes, 25 seconds; Longitude 97 degrees, 19 minutes, 46 seconds. Attached Graphic(9) Guadalupe River at Victoria, Texas, generally described as USGS gage 08176500, and more particularly described as Latitude 28 degrees, 47 minutes, 34 seconds; Longitude 97 degrees, 00 minutes, 46 seconds. Attached Graphic(10) Medina River at Bandera, Texas, generally described as USGS gage 08178880, and more particularly described as Latitude 29 degrees, 43 minutes, 25 seconds; Longitude 99 degrees, 04 minutes, 11 seconds. Attached Graphic(11) Medina River at San Antonio, Texas, generally described as USGS gage 08181500, and more particularly described as Latitude 29 degrees, 15 minutes, 50 seconds; Longitude 98 degrees, 29 minutes, 26 seconds. Attached Graphic(12) San Antonio River near Elmendorf, Texas, generally described as USGS gage 08181800, and more particularly described as Latitude 29 degrees, 13 minutes, 19 seconds; Longitude 98 degrees, 21 minutes, 20 seconds. (A) United States Geological Survey Gage 08181800, San Antonio River near Elmendorf: Subsistence Flows, Base Flows, and Small Seasonal Pulses. Attached Graphic(B) United States Geological Survey Gage 08181800, San Antonio River near Elmendorf: Large Pulses. Attached Graphic(13) San Antonio River near Falls City, Texas, generally described as USGS gage 08183500, and more particularly described as Latitude 28 degrees, 57 minutes, 05 seconds; Longitude 98 degrees, 03 minutes, 50 seconds. (A) United States Geological Survey Gage 08183500, San Antonio River near Falls City: Subsistence Flows, Base Flows, and Small Seasonal Pulses. Attached Graphic(B) United States Geological Survey Gage 08183500, San Antonio River near Falls City: Large Pulses. Attached Graphic(14) Cibolo Creek near Falls City, Texas, generally described as USGS gage 08186000, and more particularly described as Latitude 29 degrees, 00 minutes, 50 seconds; Longitude 97 degrees, 55 minutes, 48 seconds. (A) United States Geological Survey Gage 08186000, Cibolo Creek near Falls City: Subsistence Flows, Base Flows, and Small Seasonal Pulses. Attached Graphic(B) United States Geological Survey Gage 08186000, Cibolo Creek near Falls City: Large Pulses. Attached Graphic(15) San Antonio River at Goliad, Texas, generally described as USGS gage 08188500, and more particularly described as Latitude 28 degrees, 38 minutes, 57.43 seconds; Longitude 97 degrees, 23 minutes, 05.49 seconds. (A) United States Geological Survey Gage 08188500, San Antonio River at Goliad: Subsistence Flows, Base Flows, and Small Seasonal Pulses. Attached Graphic(B) United States Geological Survey Gage 08188500, San Antonio River at Goliad: Large Pulses. Attached Graphic(16) Mission River at Refugio, Texas, generally described as USGS gage 08189500, and more particularly described as Latitude 28 degrees, 17 minutes, 30 seconds; Longitude 97 degrees, 16 minutes, 44 seconds. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §298.380 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scE/s298.385"><num value="298.385">§298.385</num><heading>Water Right Permit Conditions</heading><content>(a) For water right permits with an authorization to store or divert water in the Guadalupe and San Antonio River Basins and the San Antonio-Nueces Coastal Basin, to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the environmental flow standards of this subchapter.(b) For water right permits with an authorization to divert water in the Guadalupe and San Antonio River Basins and the San Antonio-Nueces Coastal Basin at a rate less than 20% of the pulse trigger level requirements of an applicable high flow pulse at a measurement point, as described in §298.380(c) of this title (relating to Environmental Flow Standards), and to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the environmental flow standards of this subchapter; however, no special conditions are necessary to preserve or pass that applicable high flow pulse.</content><note type="source"><p>Source Note: The provisions of this §298.385 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scE/s298.390"><num value="298.390">§298.390</num><heading>Schedule for Revision of Standards</heading><content>The environmental flow standards or environmental flow set-asides adopted in this subchapter for the Guadalupe, San Antonio, Mission, and Aransas Rivers, their associated tributaries, Mission, Copano, Aransas, and San Antonio Bays, and the associated estuaries may be revised by the commission through the rulemaking process. The final revised rules shall be effective no sooner than ten years from the effective date of this rule, unless the Guadalupe, San Antonio, Mission, and Aransas Basin and Bay Area Stakeholder Committee submits a work plan approved by the advisory group under Texas Water Code, §11.02362(p), that provides for a periodic review to occur more frequently. The rulemaking process shall include participation by a balanced representation of stakeholders having interests in the Guadalupe, San Antonio, Mission, and Aransas Rivers, their associated tributaries, Mission, Copano, Aransas, and San Antonio Bays.</content><note type="source"><p>Source Note: The provisions of this §298.390 adopted to be effective August 30, 2012, 37 TexReg 6629.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c298/scF"><num value="F">SUBCHAPTER F</num><heading>NUECES RIVER AND CORPUS CHRISTI AND BAFFIN BAYS</heading><section identifier="/us/state/tx/tac/t30/p1/c298/scF/s298.400"><num value="298.400">§298.400</num><heading>Applicability and Purpose</heading><content>This subchapter contains the environmental flow standards for the Nueces River, its associated tributaries, the Nueces-Rio Grande Coastal Basin, and Corpus Christi and Baffin Bays. This subchapter does not affect an appropriation of or an authorization to store, take, or divert water under a permit or amendment to a water right issued before September 1, 2007. The provisions of this subchapter will prevail over any provisions of Subchapter A of this chapter (relating to General Provisions) that are inconsistent with this subchapter relating to environmental flow standards and regulation in the Nueces River, its associated tributaries, the Nueces-Rio Grande Coastal Basin, and Corpus Christi and Baffin Bays.</content><note type="source"><p>Source Note: The provisions of this §298.400 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scF/s298.405"><num value="298.405">§298.405</num><heading>Definitions</heading><content>The following words or phrases have the following meanings in this subchapter unless the context clearly indicates otherwise:(1) Fall--for the measurement points listed in §298.430(c)(3) - (5), (9), and (12) - (19) of this title (relating to Environmental Flow Standards), the period of time September through October, inclusive and for all other measurement points, the period of time October through November, inclusive.(2) Inflow regime--a freshwater inflow pattern, at the most downstream point on the Nueces River where the river enters the Nueces Bay and Delta, that includes quantities and frequencies that vary throughout the year.(3) Modeled permitting frequency--the frequencies at which specific volumes of freshwater inflows occur in the commission's water availability models for the Nueces river basin at the time the first water right application subject to this subchapter is processed.(4) Nueces Bay--a secondary bay of Corpus Christi Bay.(5) Nueces Delta-- a complex array of channels, pools, marshes, and tidal flats in the upper end of Nueces Bay that lies generally to the north of the Nueces River and includes area receiving inflows from the Rincon Bayou and overflow channels from the river.(6) Spring--the period of time April through June, inclusive.(7) Sound ecological environment--maintains, to some reasonable level, the physical, chemical, and biological attributes and processes of the natural system.(8) Summer-- for the measurement points listed in §298.430(c)(3) - (5), (9), and (12) - (19) of this title (relating to Environmental Flow Standards), the period of time July through August, inclusive and for all other measurement points, the period of time July through September, inclusive.(9) Target frequency--the frequency at which specific target volumes of freshwater inflows occur, and which are used for the sole purpose of providing additional freshwater inflows to Nueces Bay and Nueces Delta through voluntary strategies.(10) Target Volume--volumes of freshwater inflows specified in §298.430(a)(3) of this title (relating to Environmental Flow Standards) which are used for water rights permitting and to establish targets for the purpose of providing additional freshwater inflows to Nueces Bay and Delta through voluntary strategies.(11) Winter--for the measurement points listed in §298.430(c)(3) - (5), (9), and (12) - (19) of this title (relating to Environmental Flow Standards), the period of time November through March, inclusive and for all other measurement points, the period of time December through March, inclusive.</content><note type="source"><p>Source Note: The provisions of this §298.405 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scF/s298.410"><num value="298.410">§298.410</num><heading>Findings</heading><content>(a) The Nueces River and its associated tributaries, tributaries in the Nueces Rio Grande Coastal Basin, and Corpus Christi and Baffin Bays are substantially sound ecological environments.(b) For the Nueces River and its associated tributaries, and tributaries in the Nueces-Rio Grande Coastal Basin, the commission finds that these sound ecological environments can best be maintained by a set of flow standards that implement a schedule of flow quantities that contain subsistence flow, base flow, and high flow pulses at defined measurement points. Minimum flow levels for these components will vary by season and by year since the amount of precipitation and, therefore, whether a system is in subsistence or base flow conditions, will vary from year to year and within a year from season to season, and the number of pulses protected will also vary with the amount of precipitation.(c) For Nueces Bay and Nueces Delta, the commission finds that the freshwater inflow standards in this subchapter are appropriate environmental flow standards that are adequate to support a sound ecological environment to the maximum extent reasonable considering other public interests and other relevant factors. The existing ecological condition of Nueces Bay and Nueces Delta may be improved, but will not be diminished, by the freshwater inflow standards in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §298.410 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scF/s298.415"><num value="298.415">§298.415</num><heading>Set-Asides and Standards Priority Date</heading><content>The priority date for the environmental flow standards and set-asides established by this subchapter is October 28, 2011. The priority date for the environmental flow standards will be used in the water availability determination for a new appropriation or for an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted and has no other purpose.</content><note type="source"><p>Source Note: The provisions of this §298.415 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scF/s298.425"><num value="298.425">§298.425</num><heading>Schedule of Flow Quantities</heading><content>(a) Schedule of flow quantities. The environmental flow standards proposed in this subchapter constitute a schedule of flow quantities made up of subsistence flow, base flow, and high flow pulses. Environmental flow standards are established for 19 measurement points in §298.430 of this title (relating to Environmental Flow Standards) and this section.(b) Subsistence flow. The applicable subsistence flow standard varies depending on the seasons as described in §298.405 of this title (relating to Definitions). For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, the water right holder may not store or divert water, unless the flow at the measurement point is above the applicable subsistence flow standard for that point. If the flow at the applicable measurement point is above the subsistence flow standard but below the base flow standard, then the water right holder must allow the applicable subsistence flow, plus 50% of the difference between measured streamflow and the applicable subsistence flow, to pass its measurement point and any remaining flow may be diverted or stored, according to its permit, subject to senior and superior water rights, as long as the flow at the measurement point does not fall below the applicable subsistence flow standard.(c) Base flow. The applicable base flow level varies depending on the seasons as described in §298.405 of this title. For a water right holder, to which an environmental flow standard applies, at a measurement point that applies to a water right, the water right holder is subject to a base flow standard. For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, when the flow at the applicable measurement point is above the applicable base flow standard, but below any applicable high flow pulse trigger levels, the water right holder may store or divert water according to its permit, subject to senior and superior water rights, as long as the flow at the applicable measurement point does not fall below the applicable base flow standard.(d) High flow pulses. High flow pulses are relatively short-duration, high flows within the watercourse that occur during or immediately following a storm event.(1) Two or three pulses per season are to be passed (i.e., no storage or diversion by an applicable water right holder), if applicable, and as described in §298.430 of this title, if the flows are above the applicable subsistence or base flow standard, and if the applicable high flow pulse trigger level is met at the applicable measurement point. The water right holder shall not divert or store water except during times that streamflow at the applicable measurement point exceeds the applicable high flow pulse trigger level and until either the applicable volume amount has passed the measurement point or the applicable duration time has passed since the high flow pulse trigger level occurred. A water right holder can divert water in excess of an applicable pulse flow trigger requirement as long as its diversions do not prevent the occurrence of the pulse flow trigger level of an applicable larger pulse.(2) If the applicable high flow pulse flow trigger level does not occur in a season, then the water right holder need not stop storing or diverting water to produce a high flow pulse. The water right holder is not required to release water lawfully stored to produce a high flow pulse.(3) Each season is independent of the preceding and subsequent seasons with respect to high flow pulse frequency.(4) High flow pulses are applicable under both subsistence and base flow conditions.(5) If a pulse flow requirement for a medium or large seasonal pulse or an annual pulse is satisfied for a particular season or year, one of each of the applicable smaller pulse requirements is also considered to be satisfied.(e) Stored water. A water right owner that has stored water in accordance with the terms and conditions of its water right, including any applicable environmental flow requirement in effect at the time the water was stored, may divert, release, or use this water, even if the applicable environmental flow requirement is not met at the time of the subsequent diversion, release, or use of that stored water.</content><note type="source"><p>Source Note: The provisions of this §298.425 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scF/s298.430"><num value="298.430">§298.430</num><heading>Environmental Flow Standards</heading><content>(a) A water right application in the Nueces River Basin, which increases the amount of water authorized to be stored, taken, or diverted as described in §298.10 of this title (relating to Applicability), shall not cause or contribute to an impairment of the inflow regimes as described in the figure in this subsection. Impairment of the inflow regime shall be evaluated as part of the water availability determination for a new water right or amendment that is subject to this subchapter. For purposes of this subsection, impairment would occur if the application, when considered in combination with any authorizations subject to this subchapter, which were issued prior to this application, would impair the modeled permitting frequency of any inflow regime by more than the values set out in paragraph (3)(A) - (C) of this subsection. (1) Impairment to the modeled permitting frequency shall be calculated individually for each inflow regime level in the figure located in paragraph (3) of this subsection for which a specific frequency is identified, at the point in the water availability model which represents inflows to Nueces Bay and Nueces Delta. (2) Impairment is calculated by subtraction of the values set out in paragraph (3)(A) - (C) of this subsection. (3) Bay and Estuary Freshwater Inflow Standards for Nueces Bay and Nueces Delta. Attached Graphic(A) The modeled permitting frequencies for the target volumes for Level 1, as described in the figure located in paragraph (3) of this subsection, and calculated as a percentage of total months or years, as applicable, shall not be decreased by more than 50%.(B) The modeled permitting frequencies for the target volumes for Level 2, as described in the figure located in paragraph (3) of this subsection, and calculated as a percentage of total months or years, as applicable, shall not be decreased by more than 25%. (C) The modeled permitting frequencies for the target volumes for Level 3, as described in the figure located in paragraph (3) of this subsection, and calculated as a percentage of total months or years, as applicable, shall not be decreased by more than 10%. (D) Each season and year is independent of the preceding and subsequent seasons and years with respect to the calculation of the Target Volume, as described in the figure located in paragraph (3) of this subsection. (b) To the extent that strategies are implemented through a water rights permit or amendment to help meet the freshwater inflow standards for Nueces Bay and Delta, a water right application in the Nueces River Basin, which increases the amount of water authorized to be stored, taken or diverted as described in §298.10 of this title, shall not reduce the modeled permitting frequency for any inflow regime level, listed in the figure located in subsection (a)(3) of this section, below the level that would occur with the permitted strategy or strategies in place. (c) The following environmental flow standards are established for the following described measurement points: (1) Nueces River at Laguna, Texas, generally described as United States Geological Survey (USGS) gage 08190000, and more particularly described as Latitude 29 degrees, 25 minutes, 42 seconds; Longitude 99 degrees, 59 minutes, 49 seconds. Attached Graphic(2) West Nueces River near Bracketville, Texas, generally described as USGS gage 08190500, and more particularly described as Latitude 29 degrees, 28 minutes, 51.9 seconds; Longitude 100 degrees, 14 minutes, 21 seconds. Attached Graphic(3) Nueces River below Uvalde, Texas, generally described as USGS gage 08192000, and more particularly described as Latitude 29 degrees, 7 minutes, 25 seconds; Longitude 99 degrees, 53 minutes, 40 seconds. Attached Graphic(4) Nueces River at Cotulla, Texas, generally described as USGS gage 08194000, and more particularly described as Latitude 28 degrees, 25 minutes, 34 seconds; Longitude 99 degrees, 14 minutes, 23 seconds. Attached Graphic(5) Nueces River near Tilden, Texas generally described as USGS gage 08194500, and more particularly described as Latitude 28 degrees, 18 minutes, 31 seconds; Longitude 98 degrees, 33 minutes, 25 seconds. Attached Graphic(6) Frio River at Concan, Texas, generally described as USGS gage 08195000, and more particularly described as Latitude 29 degrees, 29 minutes, 18 seconds; Longitude 99 degrees, 42 minutes, 16 seconds. Attached Graphic(7) Dry Frio River near Reagan Wells, Texas, generally described as USGS gage 08196000, and more particularly described as Latitude 29 degrees, 30 minutes, 16 seconds; Longitude 99 degrees, 46 minutes, 52 seconds. Attached Graphic(8) Sabinal River near Sabinal, Texas, generally described as USGS gage 08198000, and more particularly described as Latitude 29 degrees, 29 minutes, 27 seconds; Longitude 99 degrees, 29 minutes, 33 seconds. Attached Graphic(9) Sabinal River at Sabinal, Texas, generally described as USGS gage 08198500, and more particularly described as Latitude 29 degrees, 18 minutes, 51.5 seconds; Longitude 99 degrees, 28 minutes, 49.7 seconds. Attached Graphic(10) Hondo Creek near Tarpley, Texas, generally described as USGS gage 08200000, and more particularly described as Latitude 29 degrees, 34 minutes, 12.11 seconds; Longitude 99 degrees, 14 minutes, 51.68 seconds. Attached Graphic(11) Seco Creek at Miller Ranch near Utopia, Texas, generally described as USGS gage 08201500, and more particularly described as Latitude 29 degrees, 34 minutes, 23 seconds; Longitude 99 degrees, 24 minutes, 10 seconds. Attached Graphic(12) Frio River near Derby, Texas, generally described as USGS gage 08205500, and more particularly described as Latitude 28 degrees, 44 minutes, 11 seconds; Longitude 99 degrees, 08 minutes, 40 seconds. Attached Graphic(13) Frio River at Tilden, Texas, generally described as USGS gage 08206600, and more particularly described as Latitude 28 degrees, 28 minutes, 02 seconds; Longitude 98 degrees, 32 minutes, 50 seconds. Attached Graphic(14) San Miguel Creek near Tilden, Texas, generally described as USGS gage 08206700, and more particularly described as Latitude 28 degrees, 35 minutes, 14 seconds; Longitude 98 degrees, 32 minutes, 44 seconds. Attached Graphic(15) Atascosa River at Whitsett, Texas, generally described as USGS gage 08208000, and more particularly described as Latitude 28 degrees, 37 minutes, 19 seconds; Longitude 98 degrees, 16 minutes, 52 seconds. Attached Graphic(16) Nueces River near Three Rivers, Texas, generally described as USGS gage 08210000, and more particularly described as Latitude 28 degrees, 25 minutes, 38 seconds; Longitude 98 degrees, 10 minutes, 40 seconds. Attached Graphic(17) Nueces River near Mathis, Texas, generally described as USGS gage 08211000, and more particularly described as Latitude 28 degrees, 02 minutes, 17 seconds; Longitude 97 degrees, 51 minutes, 36 seconds. Attached Graphic(18) Oso Creek at Corpus Christi, Texas, generally described as USGS gage 08211520, and more particularly described as Latitude 28 degrees, 42 minutes, 40 seconds; Longitude 97 degrees, 30 minutes, 06 seconds. Attached Graphic(19) San Fernando Creek at Alice, Texas, generally described as USGS gage 08211900, and more particularly described as Latitude 27 degrees, 46 minutes, 20 seconds; Longitude 98 degrees, 02 minutes, 00 seconds. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §298.430 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scF/s298.435"><num value="298.435">§298.435</num><heading>Water Right Permit Conditions</heading><content>(a) For water right permits with an authorization to store or divert water in the Nueces River Basin and the Nueces-Rio Grande Coastal Basin, to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the environmental flow standards of this subchapter.(b) For water right permits with an authorization to divert water in the Nueces River Basin and the Nueces-Rio Grande Coastal Basin at a rate less than 20% of the pulse trigger level requirements of an applicable high flow pulse at a measurement point, as described in §298.430(c) of this title (relating to Environmental Flow Standards), and to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the environmental flow standards of this subchapter; however, no special conditions are necessary to preserve or pass that applicable high flow pulse.</content><note type="source"><p>Source Note: The provisions of this §298.435 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scF/s298.440"><num value="298.440">§298.440</num><heading>Schedule for Revision of Standards</heading><content>The environmental flow standards or environmental flow set-asides adopted in this subchapter for the Nueces River Basin and the Nueces-Rio Grande Coastal Basin, their associated tributaries, Corpus Christi and Baffin Bays may be revised by the commission through the rulemaking process. The final revised rules shall be effective no sooner than ten years from the effective date of this rule, unless the Nueces River and Corpus Christi and Baffin Bay Area Stakeholder Committee submits a work plan approved by the advisory group under Texas Water Code, §11.02362(p), that provides for a periodic review to occur more frequently. The rulemaking process shall include participation by a balanced representation of stakeholders having interests in the Nueces River Basin and the Nueces-Rio Grande Coastal Basin, their associated tributaries, Corpus Christi and Baffin Bays.</content><note type="source"><p>Source Note: The provisions of this §298.440 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c298/scG"><num value="G">SUBCHAPTER G</num><heading>BRAZOS RIVER AND ITS ASSOCIATED BAY AND ESTUARY SYSTEM</heading><section identifier="/us/state/tx/tac/t30/p1/c298/scG/s298.450"><num value="298.450">§298.450</num><heading>Applicability and Purpose</heading><content>This subchapter contains the environmental flow standards for the Brazos River and its associated bay and estuary system. The provisions of this subchapter will prevail over any provisions of Subchapter A of this chapter (relating to General Provisions) that are inconsistent with this subchapter relating to environmental flow standards and regulation in the Brazos River Basin and the Brazos-Colorado Coastal Basin.</content><note type="source"><p>Source Note: The provisions of this §298.450 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scG/s298.455"><num value="298.455">§298.455</num><heading>Definitions</heading><content>The following words or phrases have the following meanings in this subchapter unless the context clearly indicates otherwise:(1) Average condition--for all measurement points, the hydrologic condition that would occur approximately 50% of the time.(2) Climatic division--a geographic area defined by the National Weather Service.(3) Dry condition--for all measurement points, the hydrologic condition that would occur approximately 25% of the time and that is intended to represent the driest periods.(4) Lower Basin--the geographic area of the Brazos River Basin which includes all watersheds below Lake Whitney Dam, and the San Bernard River and coastal watersheds, and which is defined for the purpose of calculating hydrologic conditions as described in §298.470 of this title (relating to Calculation of Hydrologic Conditions).(5) Middle Basin--the geographic area of the Brazos River Basin which includes all watersheds draining into the Brazos River and its tributaries downstream of Possum Kingdom Dam and upstream of Lake Whitney Dam, and which is defined for the purpose of calculating hydrologic conditions as described in §298.470 of this title (relating to Calculation of Hydrologic Conditions).(6) PHDI--the Palmer Hydrological Drought Index, based on a scale from -6.0 to 6.0, and representing the severity of moisture conditions from extremely dry to extremely wet.(7) PHDI Index--a regional PHDI, calculated for the Lower Basin, Middle Basin, and Upper Basin, based on ranked values for a period of record from 1895 through 2010, and which is defined for the purpose of calculating hydrologic conditions as described in §298.470 of this title (relating to Calculation of Hydrologic Conditions).(8) Spring--the period of time March through June, inclusive.(9) Sound ecological environment--characterized by fish, macroinvertebrate, and riparian vegetation species assemblages that remain relatively intact compared to historical records.(10) Summer--the period of time July through October, inclusive.(11) Upper Basin--the geographic area of the Brazos River Basin which includes all watersheds upstream of and draining into Possum Kingdom Lake, and which is defined for the purpose of calculating hydrologic conditions as described in §298.470 of this title (relating to Calculation of Hydrologic Conditions).(12) Wet condition--for all measurement points, the hydrologic condition that would occur approximately 25% of the time and that is intended to represent the wettest conditions.(13) Winter--for all measurement points, the period of time November through February, inclusive.</content><note type="source"><p>Source Note: The provisions of this §298.455 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scG/s298.460"><num value="298.460">§298.460</num><heading>Findings</heading><content>(a) The Brazos River and its associated tributaries and bay and estuary system and the San Bernard River and its associated tributaries are healthy and sound ecological environments.(b) The commission finds that these sound ecological environments can best be maintained by a set of flow standards that implement a schedule of flow quantities that contain subsistence flow, base flow, and high flow pulses at defined measurement points. Minimum flow levels for these components will vary by season and by year since the amount of precipitation and, therefore, whether a system is in dry, average, or wet base flow conditions, will vary from year to year and within a year from season to season, and the number of pulses protected will also vary with the amount of precipitation and hydrologic conditions.</content><note type="source"><p>Source Note: The provisions of this §298.460 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scG/s298.465"><num value="298.465">§298.465</num><heading>Set-Asides and Standards Priority Date</heading><content>The priority date for the environmental flow standards and set-asides established by this subchapter is March 1, 2012. The priority date for the environmental flow standards will be used in the water availability determination for a new appropriation or for an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted, and has no other purpose.</content><note type="source"><p>Source Note: The provisions of this §298.465 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scG/s298.470"><num value="298.470">§298.470</num><heading>Calculation of Hydrologic Conditions</heading><content>(a) For new water right authorizations which increase the amount of water authorized to be stored, taken, or diverted as described in §298.10 of this title (relating to Applicability), the determination of the hydrologic condition for a particular season shall be determined once per season. The Palmer Hydrologic Drought Index (PHDI) value present on the last day of the month of the preceding season, as reported by the National Weather Service, and calculated for the geographic area as described in subsection (b) of this section, will determine the hydrologic condition for the following season. For each measurement point specified in this section, the PHDI Index will determine the hydrologic condition, as described in subsection (c) of this section. (b) The percentage of each climatic division within each geographic area, as defined in §298.455 of this title (relating to Definitions), are: Attached Graphic(c) For all measurement points, based on the geographic area in which the measurement point is located, as defined in §298.455 of this title, the PHDI Index and the corresponding hydrologic conditions are: Attached Graphic(d) The PHDI Index for the hydrologic conditions, as set out in subsection (b) of this section govern the operations of permits subject to this subchapter during the initial period, not longer than ten years, until the environmental flow standards in this subchapter are reevaluated. The PHDI Index was calculated to achieve compliance with the percentages of time for dry, average, and wet conditions of 25%, 50%, and 25%, respectively. The PHDI Index set out in subsection (c) of this section will be recalculated, no less frequently than once every ten years, in order to achieve, to the greatest extent possible, compliance with the percentages of time for dry, average, and wet conditions of 25%, 50%, and 25%, respectively.</content><note type="source"><p>Source Note: The provisions of this §298.470 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scG/s298.475"><num value="298.475">§298.475</num><heading>Schedule of Flow Quantities</heading><content>(a) Schedule of flow quantities. The environmental flow standards adopted by this subchapter constitute a schedule of flow quantities made up of subsistence flow, base flow, and high flow pulses. Environmental flow standards are established at 20 separate measurement locations in §298.480 of this title (relating to Environmental Flow Standards).(b) Subsistence flow. The applicable subsistence flow standard varies depending on the seasons as described in §298.455 of this title (relating to Definitions). For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, the water right holder may not store or divert water unless the flow at the measurement point is above the applicable subsistence flow standard for that point. If the flow at the applicable measurement point is above the subsistence flow standard but below the applicable dry condition base flow standard, then the water right holder must allow the applicable subsistence flow, plus 50% of the difference between measured streamflow and the applicable subsistence flow, to pass its measurement point and any remaining flow may be diverted or stored, according to its permit, subject to senior and superior water rights, as long as the flow at the measurement point does not fall below the applicable subsistence flow standard.(c) Base flow. The applicable base flow level varies depending on the seasons as described in §298.455 of this title and the hydrologic condition described in §298.470 of this title (relating to Calculation of Hydrologic Conditions). For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, the water right holder is subject to the base flow standard for the hydrologic condition prevailing at that time. For all measurement points, the water right will be subject to one of the following: a dry, an average, or a wet base flow standard. For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, when the flow at the applicable measurement point is above the applicable base flow standard, but below any applicable high flow pulse levels, the water right holder may store or divert water according to its permit, subject to senior and superior water rights, as long as the flow at the applicable measurement point does not fall below the applicable base flow standard for that hydrologic condition except during dry conditions as described in subsection (b) of this section.(d) High flow pulses. High flow pulses are relatively short-duration, high flows within the watercourse that occur during or immediately following a storm event.(1) For all measurement points, one, two, three, or four pulses per season are to be passed (i.e., no storage or diversion by an applicable water right holder), if applicable, and as described in §298.480 of this title, if streamflows are above the applicable subsistence or base flow standard, and if the applicable high flow pulse trigger level is met at the applicable measurement point. The water right holder shall not divert or store water until either the applicable volume amount has passed the applicable measurement point or the duration time has passed since the high flow pulse trigger level occurred except during times that streamflow at the applicable measurement point exceeds the applicable high flow pulse trigger level. A water right holder can divert water in excess of an applicable pulse flow trigger requirement as long as its diversions do not prevent the occurrence of the pulse flow trigger level of an applicable larger pulse.(2) If the applicable high flow pulse trigger level does not occur in a season, then the water right holder need not stop storing or diverting water to produce a high flow pulse. The water right holder is not required to release water lawfully stored to produce a high flow pulse.(3) Each season is independent of the preceding and subsequent seasons with respect to high flow pulse frequency.(4) High flow pulses at the applicable measurement point are dependent on the hydrologic conditions set out in §298.470 of this title.(5) For measurement points in the Brazos River Basin described in §298.480(7) - (8) of this title, if a pulse flow requirement for the large seasonal pulse is satisfied for a particular season, one of the smaller pulse requirements is also considered to be satisfied for that season.(e) Stored water. A water right owner that has stored water in accordance with the terms and conditions of its water right, including any applicable environmental flow requirement in effect at the time the water was stored, may divert, release, or use this water, even if the applicable environmental flow requirement is not met at the time of the subsequent diversion, release, or use of that stored water.</content><note type="source"><p>Source Note: The provisions of this §298.475 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scG/s298.480"><num value="298.480">§298.480</num><heading>Environmental Flow Standards</heading><content>The following environmental flow standards are established for the following described measurement points: (1) Double Mountain Fork Brazos River near Aspermont, Texas, generally described as United States Geological Survey (USGS) gage 08080500, and more specifically described as Latitude 33 degrees, 00 minutes, 29 seconds; Longitude 100 degrees, 10 minutes, 49 seconds. Attached Graphic(2) Salt Fork Brazos River near Aspermont, Texas, generally described as USGS gage 08082000, and more specifically described as Latitude 33 degrees, 20 minutes, 2 seconds; Longitude 100 degrees, 14 minutes, 16 seconds. Attached Graphic(3) Brazos River at Seymour, Texas, generally described as USGS gage 08082500, and more specifically described as Latitude 33 degrees, 34 minutes, 51 seconds; Longitude 99 degrees, 16 minutes, 02 seconds. Attached Graphic(4) Clear Fork Brazos River at Nugent, Texas, generally described as USGS gage 08084000, and more specifically described as Latitude 32 degrees, 41 minutes, 24 seconds; Longitude 99 degrees, 40 minutes, 09 seconds. Attached Graphic(5) Clear Fork Brazos River at Lueders, Texas, generally described as USGS gage 08084200, and more specifically described as Latitude 32 degrees, 47 minutes, 33.9 seconds; Longitude 99 degrees, 36 minutes, 43.30 seconds. Attached Graphic(6) Brazos River near South Bend, Texas, generally described as USGS gage 08088000, and more specifically described as Latitude 33 degrees, 01 minutes, 27 seconds; Longitude 98 degrees, 38 minutes, 37 seconds. Attached Graphic(7) Brazos River near Palo Pinto, Texas, generally described as USGS gage 08089000, and more specifically described as Latitude 32 degrees, 51 minutes, 45 seconds; Longitude 98 degrees, 18 minutes, 08 seconds. Attached Graphic(8) Brazos River near Glen Rose, Texas, generally described as USGS gage 080891000, and more specifically described as Latitude 32 degrees, 15 minutes, 32 seconds; Longitude 97 degrees, 42 minutes, 08 seconds. Attached Graphic(9) North Bosque River near Clifton, Texas, generally described as USGS gage 08095000, and more specifically described as Latitude 31 degrees, 47 minutes, 09 seconds; Longitude 97 degrees, 34 minutes, 04 seconds. Attached Graphic(10) Brazos River at Waco, Texas, generally described as USGS gage 08096500, and more specifically described as Latitude 31 degrees, 32 minutes, 09 seconds; Longitude 97 degrees, 04 minutes, 23 seconds. Attached Graphic(11) Leon River at Gatesville, Texas, generally described as USGS gage 08100500, and more specifically described as Latitude 31 degrees, 26 minutes, 05 seconds; Longitude 97 degrees, 45 minutes, 30 seconds. Attached Graphic(12) Lampasas River near Kempner, Texas, generally described as USGS gage 08103800, and more specifically described as Latitude 31 degrees, 04 minutes, 45 seconds; Longitude 98 degrees, 00 minutes, 59 seconds. Attached Graphic(13) Little River near Little River, Texas, generally described as USGS gage 08104500, and more specifically described as Latitude 30 degrees, 57 minutes, 59 seconds; Longitude 97 degrees, 20 minutes, 45 seconds. Attached Graphic(14) Little River near Cameron, Texas, generally described as USGS gage 08106500, and more specifically described as Latitude 30 degrees, 50 minutes, 06 seconds; Longitude 96 degrees, 56 minutes, 47 seconds. Attached Graphic(15) Brazos River at SH 21 near Bryan, Texas, generally described as USGS gage 08108700, and more specifically described as Latitude 30 degrees, 37 minutes, 36 seconds; Longitude 96 degrees, 32 minutes, 38 seconds. Attached Graphic(16) Navasota River near Easterly, Texas, generally described as USGS gage 08110500, and more specifically described as Latitude 31 degrees, 10 minutes, 12 seconds; Longitude 96 degrees, 17 minutes, 51 seconds. Attached Graphic(17) Brazos River near Hempstead, Texas, generally described as USGS gage 08111500, and more specifically described as Latitude 30 degrees, 07 minutes, 44 seconds; Longitude 96 degrees, 11 minutes, 15 seconds. Attached Graphic(18) Brazos River at Richmond, Texas, generally described as USGS gage 08114000, and more specifically described as Latitude 29 degrees, 34 minutes, 56 seconds; Longitude 95 degrees, 45 minutes, 27 seconds. Attached Graphic(19) Brazos River near Rosharon, Texas, generally described as USGS gage 08116650, and more specifically described as Latitude 29 degrees, 20 minutes, 58 seconds; Longitude 95 degrees, 34 minutes, 56 seconds. Attached Graphic(20) San Bernard River near Boling, Texas, generally described as USGS gage 08117500, and more specifically described as Latitude 29 degrees, 18 minutes, 48 seconds; Longitude 95 degrees, 53 minutes, 37 seconds. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §298.480 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scG/s298.485"><num value="298.485">§298.485</num><heading>Water Right Permit Conditions</heading><content>(a) For water right permits with an authorization to store or divert water from the Brazos River and its associated tributaries, and from the Brazos-Colorado Coastal Basin, and to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the environmental flow standards of this subchapter.(b) For water right permits with an authorization to divert water in the Brazos River Basin and the Brazos-Colorado Coastal Basin at a rate less than 20% of the pulse trigger level requirements of an applicable high flow pulse at a measurement point, as described in §298.480 of this title (relating to Environmental Flow Standards), and to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the environmental flow standards of this subchapter; however, no special conditions are necessary to preserve or pass that applicable high flow pulse.(c) For water right permit applications that request only to increase authorized storage by up to 15%, in the Palo Pinto Creek watershed, and to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the environmental flow standards of this subchapter; however, no special conditions are necessary to preserve or pass any otherwise applicable high flow pulses.</content><note type="source"><p>Source Note: The provisions of this §298.485 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scG/s298.490"><num value="298.490">§298.490</num><heading>Schedule for Revision of Standards</heading><content>The environmental flow standards or environmental flow set-asides adopted in this subchapter for the Brazos River and its associated tributaries and its associated bay and estuary system and the Brazos-Colorado Coastal Basin may be revised by the commission through the rulemaking process. The final revised rules shall be effective no sooner than ten years from the effective date of this rule, unless the Brazos River and Associated Bay and Estuary System Stakeholder Committee submits a work plan approved by the Environmental Flows Advisory Group under Texas Water Code, §11.02362(p), that provides for a periodic review to occur more frequently. The rulemaking process shall include participation by a balanced representation of stakeholders having interests in the Brazos River and its associated tributaries and its associated bay and estuary system and the Brazos-Colorado Coastal Basin.</content><note type="source"><p>Source Note: The provisions of this §298.490 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c298/scH"><num value="H">SUBCHAPTER H</num><heading>RIO GRANDE, RIO GRANDE ESTUARY, AND LOWER LAGUNA MADRE</heading><section identifier="/us/state/tx/tac/t30/p1/c298/scH/s298.500"><num value="298.500">§298.500</num><heading>Applicability and Purpose</heading><content>This subchapter contains the environmental flow standards for the Rio Grande and its associated tributaries. The provisions of this subchapter will prevail over any provisions of Subchapter A of this chapter (relating to General Provisions) that are inconsistent with this subchapter relating to environmental flow standards and regulation in the Rio Grande basin.</content><note type="source"><p>Source Note: The provisions of this §298.500 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scH/s298.505"><num value="298.505">§298.505</num><heading>Definitions</heading><content>The following words or phrases have the following meanings in this subchapter unless the context clearly indicates otherwise:(1) Average condition--the hydrologic condition that would occur approximately 50% of the time and that is intended to represent periods that are neither dry nor wet.(2) Dry condition--the hydrologic condition that would occur approximately 15% of the time and that is intended to represent conditions that are dry but are above the subsistence condition.(3) Fall--the period of time July through October, inclusive.(4) Spring--the period of time March through June, inclusive.(5) Sound ecological environment--an environment that sustains the full complement of the current suite of native species in perpetuity, or at least supports the introduction of extirpated species, sustains key habitat features required by these species, retains key features of the natural flow regime required by these species to complete their life cycles, and sustains key ecosystem processes and services, such as elemental cycling and the productivity of important plant and animal populations.(6) Subsistence condition--the hydrologic condition that would occur approximately 10% of the time and that is intended to represent the driest periods.(7) Wet condition--the hydrologic condition that would occur approximately 25% of the time and that is intended to represent the wettest conditions.(8) Winter--the period of time November through February, inclusive.</content><note type="source"><p>Source Note: The provisions of this §298.505 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scH/s298.510"><num value="298.510">§298.510</num><heading>Findings</heading><content>For the Rio Grande, and its associated tributaries located within Texas, the commission finds that the environmental flow standards in this subchapter are appropriate environmental flow standards that are adequate to support a sound ecological environment at the locations specified in this subchapter to the maximum extent reasonable considering other public interests and other relevant factors. The commission finds that the sound ecological environment can best be maintained by a set of flow standards consisting of a schedule of flow quantities that contain subsistence flow, base flows, and high flow pulses at defined measurement points. Minimum flow levels for these components will vary by season and by year since the amount of precipitation and, therefore, whether a system is in subsistence, dry, average, or wet hydrologic conditions, will vary from year to year and within a year from season to season, and the number of pulses will also vary with the amount of precipitation.</content><note type="source"><p>Source Note: The provisions of this §298.510 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scH/s298.515"><num value="298.515">§298.515</num><heading>Set-Asides and Standards Priority Date</heading><content>The priority date for the environmental flow standards and set-asides established by this subchapter is July 25, 2012. The priority date for the environmental flow standards will be used in the water availability determination for a new appropriation or for an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted, and has no other purpose.</content><note type="source"><p>Source Note: The provisions of this §298.515 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scH/s298.520"><num value="298.520">§298.520</num><heading>Calculation of Hydrologic Conditions</heading><content>(a) For new water right authorizations in the Rio Grande Basin which increase the amount of water authorized to be stored, taken, or diverted as described in §298.10 of this title (relating to Applicability), the determination of the hydrologic condition for a particular season shall be determined once per season. The conditions present on the last day of the month of the preceding season will determine the hydrologic condition for the following season for the applicable measurement point. For each measurement point, cumulative streamflow for the previous 12 months will determine the hydrologic condition.(b) For purposes of permit special conditions related to hydrologic conditions, for water right applications in the Rio Grande Basin, which increase the amount of water to be stored, taken, or diverted, the hydrologic condition shall be calculated using the full period of record for the United States Geological Survey (USGS) gage or the International Boundary and Water Commission (IBWC) gage, as applicable, at each measurement point such that subsistence conditions occur approximately 10% of the time, dry conditions occur approximately 15% of the time, average conditions occur approximately 50% of the time, and wet conditions occur approximately 25% of the time.(c) For purposes of water availability determinations, for water right permit applications in the Rio Grande Basin, which increase the amount of water to be stored, taken, or diverted, hydrologic conditions used in the commission's water availability model shall be calculated such that subsistence conditions occur approximately 10% of the time, dry conditions occur approximately 15% of the time, average conditions occur approximately 50% of the time, and wet conditions occur approximately 25% of the time, based on the period of record and simulated flows of the water availability model.</content><note type="source"><p>Source Note: The provisions of this §298.520 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scH/s298.525"><num value="298.525">§298.525</num><heading>Schedule of Flow Quantities</heading><content>(a) Schedule of flow quantities. The environmental flow standards proposed in this subchapter constitute a schedule of flow quantities made up of subsistence flow, base flows, and high flow pulses. Environmental flow standards are established for five measurement points in §298.530 of this title (relating to Environmental Flow Standards) and this section.(b) Subsistence flow. The applicable subsistence flow standard varies depending on the seasons as described in §298.505 of this title (relating to Definitions) and hydrologic conditions, as described in §298.520 of this title (relating to Calculation of Hydrologic Conditions). For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, the water right holder may not store or divert water under subsistence hydrologic conditions, unless the flow at the measurement point is above the applicable subsistence flow standard for that point. During subsistence hydrologic conditions, if the flow at the measurement point is above the subsistence flow standard but below the applicable dry condition base flow standard, then the water right holder may divert or store water according to its permit, subject to senior and superior water rights, as long as the flow at the measurement point does not fall below the applicable subsistence flow standard.(c) Base flow. The applicable base flow standard varies depending on the seasons, as described in §298.505 of this title, and the hydrologic conditions, as described in §298.520 of this title. For a water right holder, to which an environmental flow standard applies, at a measurement point that applies to a water right, the water right holder is subject to a base flow standard for the hydrologic conditions prevailing at the time, i.e., the water right holder will be subject to one of the following: a subsistence, a dry, an average, or a wet base flow standard. For a water right holder to which an environmental flow standard applies, at a measurement point that applies to the water right, when the flow at the applicable measurement point is above the applicable base flow standard, but below any applicable high flow pulse trigger levels, the water right holder may store or divert water according to its permit, subject to senior and superior water rights, as long as the flow at the applicable measurement point does not fall below the applicable base flow standard.(d) High flow pulses. High flow pulses are relatively short-duration, high flows within the watercourse that occur during or immediately following a storm event.(1) One or two pulses per season are to be passed (i.e., no storage or diversion by an applicable water right holder), if applicable, and as described in §298.530 of this title, if the flows are above the applicable subsistence or base flow standard, and if the applicable high flow pulse trigger level is met at the applicable measurement point. The water right holder shall not divert or store water except during times that streamflow at the applicable measurement point exceeds the applicable high flow pulse trigger level and until either the applicable volume amount has passed the measurement point or the applicable duration time has passed since the high flow pulse trigger level occurred. A water right holder can divert water in excess of an applicable pulse flow trigger requirement as long as its diversions do not prevent the occurrence of the pulse flow trigger level of an applicable larger pulse.(2) If the applicable high flow pulse flow trigger level does not occur in a season, then the water right holder need not stop storing or diverting water to produce a high flow pulse. The water right holder is not required to release water lawfully stored to produce a high flow pulse.(3) Each season is independent of the preceding and subsequent seasons with respect to high flow pulse frequency.(4) High flow pulses are independent of the hydrologic conditions set out in §298.520 of this title.(5) If a pulse flow requirement for an annual pulse is satisfied for a particular season or year, one of the applicable smaller pulse requirements is also considered to be satisfied in that season.(e) Stored water. A water right owner that has stored water in accordance with the terms and conditions of its water right, including any applicable environmental flow requirement in effect at the time the water was stored, may divert, release, or use this water, even if the applicable environmental flow requirement is not met at the time of the subsequent diversion, release, or use of that stored water.</content><note type="source"><p>Source Note: The provisions of this §298.525 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scH/s298.530"><num value="298.530">§298.530</num><heading>Environmental Flow Standards</heading><content>The following environmental flow standards are established for the following described measurement points: (1) Rio Grande at Johnson Ranch near Castolon, Texas and Santa Elena, Chihuahua, Mexico, generally described as International Boundary and Water Commission (IBWC) gage 08-3750.00, and more particularly described as Latitude 29 degrees, 02 minutes, 05 seconds; Longitude 103 degrees, 23 minutes, 25 seconds. Attached Graphic(2) Rio Grande at Foster Ranch near Langtry, Texas and Rancho Santa Rosa, Coahuila, Mexico, generally described as IBWC gage 08-3772.00, and more particularly described as Latitude 29 degrees, 46 minutes, 50 seconds; Longitude 101 degrees, 45 minutes, 30 seconds. Attached Graphic(3) Pecos River near Girvin, Texas, generally described as USGS gage 08446500, and more particularly described as Latitude 31 degrees, 06 minutes, 47 seconds; Longitude 102 degrees, 25 minutes, 02 seconds. Attached Graphic(4) Devils River at Pafford Crossing near Comstock, Texas, generally described as IBWC gage 08-4494.00, and more particularly described as Latitude 29 degrees, 40 minutes, 35 seconds; Longitude 101 degrees, 00 minutes, 00 seconds. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §298.530 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scH/s298.535"><num value="298.535">§298.535</num><heading>Water Right Permit Conditions</heading><content>For water right permits with an authorization to store or divert water in the Rio Grande Basin, to which the environmental flow standards apply, that are issued after the effective date of this subchapter, the water right permit or amendment shall contain flow restriction special conditions that are adequate to protect the environmental flow standards of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §298.535 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c298/scH/s298.540"><num value="298.540">§298.540</num><heading>Schedule for Revision of Standards</heading><content>The environmental flow standards adopted in this subchapter for the Rio Grande, and its associated tributaries in Texas, may be revised by the commission through the rulemaking process. The final revised rules shall be effective no sooner than ten years from the effective date of this rule, unless the Rio Grande Basin, Rio Grande estuary, and Lower Laguna Madre Stakeholder Committee submits a work plan approved by the advisory group under Texas Water Code, §11.02362(p), that provides for a periodic review to occur more frequently. The rulemaking process shall include participation by a balanced representation of stakeholders having interests in the Rio Grande, its associated tributaries, Rio Grande estuary and Lower Laguna Madre.</content><note type="source"><p>Source Note: The provisions of this §298.540 adopted to be effective March 6, 2014, 39 TexReg 1416.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c299"><num value="299">CHAPTER 299</num><heading>DAMS AND RESERVOIRS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c299/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c299/scA/s299.1"><num value="299.1">§299.1</num><heading>Applicability</heading><content>(a) This chapter applies to design, review, and approval of construction plans and specifications; and construction, operation and maintenance, inspection, repair, removal, emergency management, site security, and enforcement of dams that: (1) have a height greater than or equal to 25 feet and a maximum storage capacity greater than or equal to 15 acre-feet, as described in paragraph (2) of this subsection; (2) have a height greater than six feet and a maximum storage capacity greater than or equal to 50 acre-feet;Attached Graphic(3) are a high- or significant-hazard dam as defined in §299.14 of this title (relating to Hazard Classification Criteria), if over 6 feet high, regardless of maximum storage capacity; or (4) are used as a pumped storage or terminal storage facility. (b) This chapter provides the requirements for dams, but does not relieve the owner from meeting the requirements in Texas Water Code (TWC), Chapter 11, and Chapters 213, 295, and 297 of this title (relating to Edwards Aquifer; Water Rights, Procedural; and Water Rights, Substantive; respectively). All applicable requirements in those chapters will still apply. (c) This chapter does not apply to: (1) dams designed by, constructed under the supervision of, and owned and maintained by federal agencies such as the Corps of Engineers, International Boundary and Water Commission, and the Bureau of Reclamation; (2) embankments constructed for roads, highways, and railroads, including low-water crossings, that may temporarily impound floodwater, unless designed to also function as a detention dam; (3) dikes or levees designed to prevent inundation by floodwater; (4) off-channel impoundments authorized by the commission under TWC, Chapter 26; (5) above-ground water storage tanks (steel, concrete, or plastic); and (6) exempt dams authorized under TWC, Chapter 12. A dam is exempt from this chapter if it meets all of the following:(A) is located on private property; (B) has a maximum capacity of less than 500 acre-feet, the capacity at the top of the dam as defined in 30 TAC §299.2(36);(C) has a hazard classification of low or significant as defined in 30 TAC §299.14;(D) is located in a county with a population of less than 350,000 based on the most current U. S. Census numbers; and(E) is not located inside the corporate limits of a municipality, as based on the most current municipal information.(d) All dams must meet the requirements in this chapter, including dams that do not require a water right permit, other dams that are exempt from the requirements in Subchapter C of this chapter (relating to Construction Requirements), and dams that are granted an exception as defined in §299.5 of this title (relating to Exception).</content><note type="source"><p>Source Note: The provisions of this §299.1 adopted to be effective January 1, 2009, 33 TexReg 10465; amended to be effective September 29, 2022, 47 TexReg 6211.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scA/s299.2"><num value="299.2">§299.2</num><heading>Definitions</heading><content>The following words and terms in this section are in addition to the definitions in §3.2 of this title (relating to Definitions). The words and terms in this section, when used in this chapter, have the following meanings.(1) Abandon--The owner no longer maintaining a dam for a period of ten years, or refusing to maintain the dam.(2) Accepted engineering practices--The application of design and analysis methods that are commonly used by professional engineers in their field of expertise and are well documented in published design manuals, codes of practice, text books, and engineering journals.(3) Alteration--Any change to a dam or appurtenant structures that affects the integrity, safety, and operation of the dam, including, but not limited to:(A) changing the height of a dam;(B) increasing the normal pool or principal spillway elevation, or changing the hydraulic capability of the principal spillway; or(C) changing the original elevation, physical dimensions, or hydraulic capability of an emergency spillway.(4) Appurtenant structures--The outlet works and controls, spillways and controls, gates, valves, siphons, access structures, bridges, berms, drains, hydroelectric facilities, instrumentation, and other structures related to the operation of a dam.(5) Breach--An excavation or opening, either controlled or a result of a failure of the dam, through a dam or spillway that is capable of completely draining the reservoir down to the approximate original topography so the dam will no longer impound water, or partially draining the reservoir to lower impounding capacity.(6) Breach analysis--The analysis of potential dam failure scenarios, including overtopping and piping (magnitude, duration, and location), using accepted engineering practices, to evaluate downstream hazard potential or to develop inundation maps.(7) Breach inundation area--An area that would be flooded as a result of a dam failure.(8) Closure of dam--The commencement of placing material within the closure section of the dam.(9) Closure section--The section of the dam left open during construction of a proposed dam in order to pass floodwaters through the dam without endangering the dam.(10) Commence construction--An actual, visible activity beyond planning or land acquisition that initiates the beginning of the construction of a dam in the manner specified in the approved construction plans and specifications for that dam. The action must be performed in good faith with the intent to continue with the construction through completion.(11) Conceptual design--A design that presents a location and proposed plan of the dam and appurtenant structures and elevations of all pertinent features of the dam.(12) Construction--Building a proposed dam and appurtenant structures capable of storing water.(13) Construction change order--A document recommended by the owner's professional engineer and signed by the owner's contractor and the owner that authorizes a significant addition, deletion, or revision of the approved construction plans and specifications that has a material impact on the safety and integrity of the dam.(14) Dam--Any barrier or barriers, with any appurtenant structures, constructed for the purpose of either permanently or temporarily impounding water.(15) Dam failure--breach and uncontrolled release of the reservoir.(16) Deficient dam--A dam that fails to meet the requirements of this chapter and poses a significant threat to human life or property.(17) Deliberate impoundment--The intentional impoundment of water in the reservoir, including:(A) closing the lowest planned outlet or spillway;(B) blocking the diversion works that are used during construction to divert water around the construction area; and(C) beginning the closure of the dam.(18) Design flood--The flood used in the design and evaluation of a dam and appurtenant structures, particularly for determining the size of spillways, outlet works, and the effective crest of the dam.(19) Detention dam--A dam that has an impoundment that is normally dry and has an ungated outlet structure that is designed to completely drain the water impounded during a flood within five days.(20) Drawdown--The change in surface elevation of a reservoir due to a withdrawal of water from the reservoir.(21) Effective crest of the dam--The elevation of the lowest point on the crest (top) of the dam, excluding spillways.(22) Emergency action plan--A written document prepared by the owner or the owner's professional engineer describing a detailed plan to prevent or lessen the effects of a failure of the dam or appurtenant structures.(23) Emergency repairs--Any repairs, considered to be temporary in nature, necessary to preserve the integrity of the dam and prevent a possible failure of the dam.(24) Emergency spillway--An auxiliary spillway designed to pass a large, but infrequent, volume of flood flow, with a crest elevation higher than the principal spillway or normal operating level.(25) Engineering inspection--Inspection performed by a professional engineer, or under the supervision of a professional engineer, to evaluate the condition, safety, and integrity of the dam and appurtenant structures to determine if the dam and appurtenant structures meet applicable rules and accepted engineering practices, including a field inspection and review of records for design, construction, and performance.(26) Enlargement--Any change in, or addition to, an existing dam or reservoir that raises, or may raise, the normal storage capacity of the reservoir impounded by the dam.(27) Existing dam--Any dam under construction or completed as of the effective date of these rules.(28) Fetch--The straight-line distance across a reservoir subject to wind forces.(29) Hazard classification--A measure of the potential for loss of life, property damage, or economic impact in the area downstream of the dam in the event of a failure or malfunction of the dam or appurtenant structures. The hazard classification does not represent the physical condition of the dam.(30) Height of dam--The difference in elevation between the natural bed of the watercourse or the lowest point on the downstream toe of the dam, whichever is lower, and the effective crest of the dam.(31) Inundation map--A map delineating the area that would be flooded by a particular flood event, or a dam failure.(32) Loss of life--Human fatalities that would result from a failure of the dam, without considering the mitigation of loss of life that could occur with evacuation or other emergency actions.(33) Main highways--Roads classified as an arterial system by the Texas Department of Transportation, including interstate highways, United States highways, and state highways, listed as either interstate or principal or minor arterial.(34) Maintenance--Those tasks that are generally recurring and are necessary to keep the dam and appurtenant structures in a sound condition, free from defect or damage that could hinder the dam's functions as designed, including adjacent areas that also could affect the function and operation of the dam.(35) Maintenance inspection--Visual inspection of the dam and appurtenant structures by the owner or owner's representative to detect apparent signs of deterioration, other deficiencies, or any other areas of concern.(36) Maximum storage capacity--The volume, in acre-feet, of the impoundment created by the dam at the effective crest of the dam. For purposes of calculating maximum storage capacity for the Inventory of Dams as described in §299.7 of this title (relating to Inventory of Dams), only water that can be stored above natural ground level (not in excavations in the reservoir) or that could be released by a failure of the dam is considered in assessing the storage volume. The maximum storage capacity may decrease over time due to sedimentation or increase if the reservoir is dredged.(37) Minimum freeboard--The difference in elevation between the effective crest of the dam and the maximum water surface elevation resulting from routing the design flood appropriate for the dam.(38) Minor highways--Roads not classified as a main or secondary highway as defined in this subsection, including county roads and Farm-to-Market roads not used to provide service to schools.(39) Modification--Any structural alteration of a dam, the spillways, the outlet works, or other appurtenant structures that could influence or affect the integrity, safety, and operation of the dam.(40) Normal storage capacity--The volume, in acre-feet, of the impoundment created by the dam at the lowest uncontrolled spillway crest elevation, or at the maximum elevation of the reservoir at the normal (non-flooding) operating level.(41) NAD83 conus datum--The North American Datum of 1983 is a reference system used to obtain the spherical coordinates of a point on the earth's surface. The standard North American Datum of 1983, or any future updates, must be used for all latitude and longitude measurements.(42) NAVD88 datum--The North American Vertical Datum of 1988 is a reference system used to obtain vertical measurements on the earth's surface. The North American Vertical Datum of 1988 must be used for all vertical measurements recorded with a global positioning system receiver.(43) Outlet--A conduit or pipe controlled by a gate or valve, or a siphon, that is used to release impounded water from the reservoir.(44) Owner--Any person who can be one or more of the following:(A) holds legal possession or ownership of an interest in a dam;(B) is the fee simple owner of the surface estate of the tract of land on which the dam is located if actual ownership of the dam is uncertain, unknown, or in dispute unless the person can demonstrate by appropriate documentation, including a deed reservation, invoice, bill of sale, or by other legally acceptable means that the dam is owned by another person or persons;(C) is a sponsoring local organization that has an agreement with the Natural Resources Conservation Service for a dam constructed under the authorization of the Flood Control Act of 1944 (as amended), Public Law 78-534, the Watershed Protection and Flood Prevention Act, 1954 (as amended), Public Law 83-566, the pilot watershed program under the Flood Prevention of the Department of Agriculture Appropriation Act of 1954, Public Law 156-67, or Subtitle H of Title XV of the Agriculture and Flood Act of 1981, the Resource Conservation and Development Program; or(D) has a lease, easement, or right-of-way to construct, operate, or maintain a dam.(45) Piping--The progressive removal of soil particles from a dam by percolating water, leading to development of channels or flow paths.(46) Principal spillway--Also commonly referred to as the service spillway, the primary or initial spillway engaged during a rainfall runoff event that is designed to pass normal flows.(47) Probable maximum flood (PMF)--The flood magnitude that may be expected from the most critical combination of meteorologic and hydrologic conditions that are reasonably possible for a given watershed.(48) Probable maximum precipitation (PMP)--The theoretically greatest depth of precipitation for a given duration that is physically possible over a given size storm area at a particular geographical location at a certain time of the year.(49) Professional engineer--An individual licensed by the Texas Board of Professional Engineers to engage in the practice of engineering in the state of Texas, with experience in the investigation, design, construction, repair, and maintenance of dams.(50) Proposed dam--Any dam not yet under construction.(51) Pumped storage dam--A rectangular or circular embankment used to store water pumped from another source.(52) Reconstruction--Removal and replacement of an existing dam or appurtenant structures.(53) Rehabilitation--The completion of all work necessary to extend the service life of a dam and meet the safety and performance standards of this chapter.(54) Removal--The complete elimination of a dam, the appurtenant structures, and the reservoir to its natural channel by removing enough of the dam to the extent that no water can be either permanently impounded, nor temporarily detained, by the dam (no significant differential between the upstream and downstream water surface elevations) during normal conditions, as well as during the design flood of the dam.(55) Repairs--Any work done on a dam that may affect the integrity, safety, and operation of the dam, including, but not limited to:(A) excavation into the embankment fill or foundation of a dam; or(B) removal or replacement of major structural components of a dam or appurtenant structures.(56) Reservoir--A body of water impounded by a dam.(57) Safe manner--Operating and maintaining a dam in sound condition, free from defect or damage that could hinder the dam's functions as designed.(58) Seal--To affix a professional engineer's seal to each sheet of construction plans or to an engineering report or required document.(59) Secondary highways--Roads classified as a major or minor collector road by the Texas Department of Transportation, including Farm-to-Market roads used to provide service to schools.(60) Secure location--A building that is locked and accessible to the owner and owner's representative.(61) Spillway--An appurtenant structure that conducts outflow from a reservoir.(62) Sponsoring local organization--any political subdivision of the state, or other entity, with the authority to carry out, maintain, or operate work of improvement installed with the assistance of the federal government.(63) Stability analysis--The analytical procedure for determining the most critical factor of safety for a slope.(64) Substantially complete--A dam under construction that is complete except for minor correction of items identified in the final construction inspection and that can be operated in a safe manner to the dam's full functional capability.</content><note type="source"><p>Source Note: The provisions of this §299.2 adopted to be effective January 1, 2009, 33 TexReg 10465; amended to be effective September 29, 2022, 47 TexReg 6211.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scA/s299.3"><num value="299.3">§299.3</num><heading>General</heading><content>(a) As part of an evaluation to determine if the dam and appurtenant structures constitute a significant threat to human life or property, the executive director may require the owner to obtain the services of an independent team of professional engineers or other dam experts, at the owner's expense, to determine the adequacy of the design, construction, or operation of the dam if safety considerations warrant an independent review. The requirements for use of the independent team of professional engineers or other dam experts will be included in a guideline developed by the executive director. The executive director shall submit the requirement in writing to the owner and shall provide a list of engineers and other dam experts. The owner shall submit the qualifications and size of the team to the executive director for any comments prior to beginning the independent review.(b) When an owner submits an application for a water rights permit to either construct a dam, reconstruct, modify, enlarge, rehabilitate, alter, or repair an existing dam, or authorize an existing dam without making any changes to the dam, the owner shall submit the following:(1) a conceptual design of the construction for a proposed dam and appurtenant structures, or proposed reconstruction, modification, enlargement, rehabilitation, alteration, or repair of an existing dam;(2) the geotechnical, hydrologic, and hydraulic reports for the proposed site, if the reports have been completed; and(3) other pertinent information on an existing dam using a form provided by the executive director.(4) The executive director shall provide a technical review of these documents as described in §281.19 of this title (relating to Technical Review).</content><note type="source"><p>Source Note: The provisions of this §299.3 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scA/s299.4"><num value="299.4">§299.4</num><heading>Professional Engineer</heading><content>(a) For all dams subject to the executive director's review under this chapter, a professional engineer shall:(1) prepare all plans and specifications;(2) prepare evaluations, analyses, or reports required by this chapter;(3) observe the progress and the quality of the construction of proposed dams or reconstruction, modification, enlargement, rehabilitation, alteration, repair, or removal of existing dams to determine, in general, if the construction is proceeding according to the approved construction plans and specifications. It is understood that the professional engineer is not responsible for the contractor's means, methods, techniques, sequences, or procedures of construction selected by the contractor, or the safety precautions and programs incident to the work of the contractor; and(4) either perform or supervise engineering inspections, as defined in §299.2 of this title (relating to Definitions), of high- and significant-hazard dams and large, low-hazard dams, as defined in §299.13 and §299.14 of this title (relating to Size Classification Criteria; and Hazard Classification Criteria; respectively).(b) The executive director may waive these requirements based on §299.5 of this title (relating to Exception).</content><note type="source"><p>Source Note: The provisions of this §299.4 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scA/s299.5"><num value="299.5">§299.5</num><heading>Exception</heading><content>(a) The executive director may grant an exception to any or all of paragraphs (1) - (9) of this subsection if the executive director determines that the physical conditions involved or consequences of potential failure, when evaluated using accepted engineering practices, make the requirements unnecessary:(1) §299.4 of this title (relating to Professional Engineer);(2) §299.22 of this title (relating to Review and Approval of Construction Plans and Specifications);(3) §299.23 of this title (relating to Maintenance of Construction Records);(4) §299.24 of this title (relating to Construction Progress Reports);(5) §299.25 of this title (relating to Construction Inspection);(6) §299.26 of this title (relating to Construction Change Orders);(7) §299.28 of this title (relating to Deliberate Impoundment);(8) §299.30 of this title (relating to Record Drawings); and(9) §299.31 of this title (relating to Permanent Reference Mark).(b) The owner shall submit the request for an exception in writing to the executive director. The request may include:(1) cost-benefit analyses;(2) detailed engineering studies prepared by a professional engineer; and(3) any other pertinent information.(c) The executive director's decision to approve or deny the request for an exception must be in writing and specify the extent of the exception granted or denied and the executive director's reasons for granting or denying the exception.</content><note type="source"><p>Source Note: The provisions of this §299.5 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scA/s299.6"><num value="299.6">§299.6</num><heading>Changing Ownership of Dams</heading><content>When there is a change in ownership of the property that includes a dam, the current owner shall include notification to the new owner in the transaction that the new owner shall notify the executive director in writing within 90 days following the transaction and provide:(1) the name, address, and telephone number of the new owner(s);(2) the date of ownership transfer;(3) the name and telephone number of the individual who will be responsible for operation and maintenance of the dam; and(4) a certified copy or photocopy of instruments recorded in the office of the county clerk showing transfer of the dam and property on which the dam is located to a new owner.</content><note type="source"><p>Source Note: The provisions of this §299.6 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scA/s299.7"><num value="299.7">§299.7</num><heading>Inventory of Dams</heading><content>(a) The executive director shall maintain an inventory of dams that includes information on:(1) ownership;(2) physical dimensions of the dam;(3) hazard classification;(4) normal and maximum storage capacity;(5) hydraulic data;(6) inspection date;(7) location;(8) condition of the dam;(9) emergency action plan status; and(10) design dates.(b) Inventory of dams operated by river authorities.(1) This section applies only to a river authority described by Section 325.025(b), Government Code.(2) Each river authority shall provide to the executive director information regarding the operation and maintenance of dams under the control of that river authority. The following information is to be provided for each dam:(A) the location of the dam;(B) under whose jurisdiction the dam operates;(C) a required maintenance schedule for the dam;(D) costs of the operation and maintenance of the dam; and(E) the method of finance for the operation and maintenance costs of the dam.(3) A river authority shall submit the information required by paragraph (2) of this subsection to the executive director each year and in the event of a significant change in the information.(4) Subject to federal and state confidentiality laws, the executive director shall create and maintain an Internet website that contains the information collected under this section.</content><note type="source"><p>Source Note: The provisions of this §299.7 adopted to be effective January 1, 2009, 33 TexReg 10465; amended to be effective September 29, 2022, 47 TexReg 6211.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c299/scB"><num value="B">SUBCHAPTER B</num><heading>DESIGN AND EVALUATION OF DAMS</heading><section identifier="/us/state/tx/tac/t30/p1/c299/scB/s299.11"><num value="299.11">§299.11</num><heading>General</heading><content>The executive director shall evaluate the hydrologic, hydraulic, and structural adequacy of the dam in determining whether a proposed or existing dam is considered a deficient dam.(1) The executive director shall evaluate the hydrologic and hydraulic adequacy of the dam and spillways using the criteria in the most current version, at the time of the evaluation, of the agency's Hydrologic and Hydraulic Guidelines for Dams in Texas. (2) The executive director may also take into consideration the condition of the dam, including the possibility that the dam might be endangered by:(A) overtopping;(B) seepage;(C) piping;(D) settlement;(E) erosion;(F) cracking;(G) sinkholes;(H) earth movement;(I) uplift;(J) overturning;(K) failure of gates or operation of gates;(L) failure of spillways;(M) failure of conduits; or(N) other conditions, as appropriate.</content><note type="source"><p>Source Note: The provisions of this §299.11 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scB/s299.12"><num value="299.12">§299.12</num><heading>Classification of Dams</heading><content>(a) The executive director shall classify all proposed and existing dams based on size (small, intermediate, or large) and downstream hazard (low, significant, or high) and not on the physical condition of the dam.(b) The executive director may reclassify the hazard classification of a dam at any time based on:(1) an inspection and downstream hazard evaluation by the executive director;(2) a report of an inspection and downstream hazard evaluation by the owner's professional engineer;(3) a breach analysis performed by either the executive director or the owner's professional engineer as described in §299.15(a)(4)(A)(i) of this title (relating to Hydrologic and Hydraulic Criteria for Dams); or(4) a review of current aerial photography and topographic maps, along with information obtained in the field.</content><note type="source"><p>Source Note: The provisions of this §299.12 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scB/s299.13"><num value="299.13">§299.13</num><heading>Size Classification Criteria</heading><content>The executive director shall classify dams for size based on the larger of the height of the dam or the maximum storage capacity. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §299.13 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scB/s299.14"><num value="299.14">§299.14</num><heading>Hazard Classification Criteria</heading><content>The executive director shall classify dams for hazard based on either potential loss of human life or property damage, in the event of failure or malfunction of the dam or appurtenant structures, within affected developments, that are existing at the time of the classification. The hazard classification may include use of a breach analysis that addresses the incremental impact of the potential breach over and above the impact of the flood that may have caused the breach, as defined in §299.15(a)(4)(A)(i) of this title (relating to Hydrologic and Hydraulic Criteria for Dams). The classification must be according to the following.(1) Low. A dam in the low-hazard potential category has:(A) no loss of human life expected (no permanent habitable structures in the breach inundation area downstream of the dam); and(B) minimal economic loss (located primarily in rural areas where failure may damage occasional farm buildings, limited agricultural improvements, and minor highways as defined in §299.2(38) of this title (relating to Definitions)).(2) Significant. A dam in the significant-hazard potential category has:(A) loss of human life possible (one to six lives or one or two habitable structures in the breach inundation area downstream of the dam); or(B) appreciable economic loss, located primarily in rural areas where failure may cause:(i) damage to isolated homes;(ii) damage to secondary highways as defined in §299.2(58);(iii) damage to minor railroads; or(iv) interruption of service or use of public utilities, including the design purpose of the utility.(3) High. A dam in the high-hazard potential category has:(A) loss of life expected (seven or more lives or three or more habitable structures in the breach inundation area downstream of the dam); or(B) excessive economic loss, located primarily in or near urban areas where failure would be expected to cause extensive damage to:(i) public facilities;(ii) agricultural, industrial, or commercial facilities;(iii) public utilities, including the design purpose of the utility;(iv) main highways as defined in §299.2(33); or(v) railroads used as a major transportation system.</content><note type="source"><p>Source Note: The provisions of this §299.14 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scB/s299.15"><num value="299.15">§299.15</num><heading>Hydrologic and Hydraulic Criteria for Dams</heading><content>(a) Hydrologic criteria.(1) Minimum hydrologic criteria for proposed dams. The following minimum hydrologic criteria includes those proposed dams to be constructed according to Texas Water Code, §11.142.(A) A proposed dam design must meet the minimum design flood hydrograph criteria.Attached Graphic(B) The minimum design flood hydrograph must be based on the size and hazard classification of a proposed dam at the time of the design and calculated using the criteria in the most current version, at the time of the analysis, of the agency's Hydrologic and Hydraulic Guidelines of Dams in Texas. (C) Proposed dams and spillways or dams and spillway to be reconstructed, modified, enlarged, rehabilitated, or altered using hydrologic procedures of the Natural Resources Conservation Service will be acceptable, provided that the procedures are shown to be equal to or more conservative than the procedures provided in the most current version, at the time of the analysis, of the agency's Hydrologic and Hydraulic Guidelines for Dams in Texas. (2) Exemptions to minimum hydrologic criteria for proposed dams. Any dam designed to withstand overtopping without failure of the dam, including the foundation and abutments, as demonstrated by studies prepared by the owner's professional engineer will be exempt from the minimum hydrologic criteria.(3) Minimum hydrologic criteria for existing dams. The following criteria applies to dams that existed before the effective date of this subchapter.(A) An owner of a large- or high-hazard existing dam that was required to meet 100% of the probable maximum flood (PMF) before the effective date of these rules and that is shown by an evaluation by a professional engineer to meet 75% or more of the PMF will not be required to upgrade the dam to meet minimum hydrologic criteria in paragraph (1)(A) of this subsection. The dam will be considered adequate to meet the minimum hydrologic criteria, provided the owner:(i) has an emergency action plan that meets the requirements in §299.61 of this title (relating to Emergency Action Plans);(ii) has an operation and maintenance plan for the dam as described in §299.43 of this title (relating to Operation and Maintenance);(iii) has an inspection program that has been implemented as described in §299.42 of this title (relating to Inspections); and(iv) submits an annual report to the executive director documenting compliance with the requirements in clauses (ii) and (iii) of this subparagraph, beginning 12 months after the effective date of this section.(B) An owner of a dam not specified in paragraph (3)(A) of this subsection that was required to meet the minimum hydrologic criteria before the effective date of these rules, but is shown by an evaluation by a professional engineer to meet the minimum hydrologic criteria in paragraph (1)(A) of this subsection, will not be required to be upgraded and the dam will be considered adequate to meet the minimum hydrologic criteria.(C) An owner of an existing dam that does not meet the minimum hydrologic criteria in paragraph (1)(A) of this subsection or the size or hazard classification has been raised and the dam does not meet the minimum hydrologic criteria in paragraph (1)(A) of this subsection for the new size or hazard classification may be required to submit to the executive director any of the following, prepared by a professional engineer:(i) final construction plans and specifications as described in §299.22 of this title (relating to Review and Approval of Construction Plans and Specifications) for modifying, enlarging, or altering the dam or spillways to meet the minimum hydrologic criteria as described in paragraph (1)(A) of this subsection, provided the minimum hydrologic criteria at least meets 75% of the PMF and the owner addresses the requirements in paragraph (3)(A) of this subsection;(ii) an analysis or other option to request a reduction in the minimum hydrologic criteria as described in paragraph (4) of this subsection; or(iii) a plan for alternatives to upgrading as described in §299.17 of this title (relating to Alternatives to Upgrading Dams).(D) An owner of an existing dam that meets the requirements of subparagraph (A) of this paragraph and that is required to be modified due to structural deficiencies shall be required to submit to the executive director final construction plans and specifications for the structural modifications as described in §299.22 of this title. The dam will not be required to be upgraded to meet the minimum design criteria in paragraph (1)(A) of this subsection.(E) An owner of a dam that has been evaluated under this paragraph shall be advised of the requirements for the owner's dam by letter. The owner shall be required to submit a written plan of action to address the requirements and a time frame to complete the requirements.(4) Reduction of minimum hydrologic criteria. The minimum hydrologic criteria may be reduced as follows. (A) The owner may request that the executive director reduce the minimum hydrologic criteria if the owner submits:(i) dam breach analysis, prepared by a professional engineer and using the normal storage capacity non-flood event, the barely overtopping flood event, and the design flood event, if applicable, that demonstrate existing downstream improvements would not be adversely affected, which is defined as the downstream flooding differentials being less than or equal to one foot between breach and non-breach simulations in the affected area;(ii) one or more technical options included in the most current version, at the time of the analysis, of the agency's Hydrologic and Hydraulic Guidelines of Dams in Texas, demonstrating that existing downstream improvements would not be adversely affected;(iii) documentation of the purchase, or an easement for, the property downstream of the dam that would be impacted by a dam failure and showing that it has been dedicated to non-residential and non-commercial use; or(iv) documentation that the property downstream has been dedicated by the property owner to non-residential and non-commercial use.(B) The executive director shall evaluate the owner's request for reduction in the minimum hydrologic criteria to determine if the request is appropriate. If the executive director agrees with the analysis, the executive director shall approve the request in writing.(C) If the executive director does not agree with the owner's request for reduction in the minimum hydrologic criteria, the executive director shall deny the request in writing.(b) Hydraulic criteria for proposed dams or dams proposed to be reconstructed, modified, enlarged, rehabilitated, or altered.(1) The owner shall have a professional engineer evaluate the hydraulic adequacy of the dam and spillways using the guidelines in the most current version, at the time of the analysis, of the agency's Hydrologic and Hydraulic Guidelines of Dams in Texas. (2) The owner shall have a professional engineer address the stability of the spillways to determine if the spillways will adequately meet the minimum design storm without being significantly damaged.(3) The owner shall have a professional engineer determine a minimum freeboard for a proposed large size dam as defined in §299.13 of this title (relating to Size Classification Criteria) as outlined in the most current version, at the time of the analysis, of the agency's Hydrologic and Hydraulic Guidelines for Dams in Texas. (c) Hydraulic criteria for existing dams. If it becomes necessary for an owner of an existing dam to reevaluate the hydraulic adequacy of the dam and spillways, the owner shall have a professional engineer evaluate the hydraulic adequacy of the dam and spillways using the guidelines in the most current version, at the time of the analysis, of the agency's Hydrologic and Hydraulic Guidelines of Dams in Texas.</content><note type="source"><p>Source Note: The provisions of this §299.15 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scB/s299.16"><num value="299.16">§299.16</num><heading>Structural Evaluation of Dams</heading><content>(a) The owner shall have a professional engineer submit a geotechnical, geological, and structural evaluation in a report to the executive director with the final construction plans and specifications as described in §299.22 of this title (relating to Review and Approval of Construction Plans and Specifications) to support the design of a proposed dam or a dam that is proposed to be reconstructed, or structurally modified, enlarged, rehabilitated, or altered. The report must include, as applicable:(1) details of the geology of the project site and vicinity;(2) location and logs of test borings, pits, and shafts;(3) results of field and laboratory tests on structural and foundation materials;(4) seepage studies;(5) stability analyses of embankments, spillways, retaining walls, and inlet structures, as described in subsection (b) of this section; and(6) recommendations concerning:(A) embankment slopes, crest width, and berms;(B) core trench size and depths;(C) moisture-density and strength requirements;(D) soil dispersion requirements;(E) minimum compressive strength for concrete;(F) construction sequence procedures and techniques for excavations and embankments;(G) types of compaction equipment; and(H) seepage control requirements.(b) The owner shall have a professional engineer develop a stability analysis as outlined in the most current version, at the time of the analysis, of the agency's Design and Construction Guidelines for Dams in Texas to support the design of proposed large- and intermediate-size dams, as defined in §299.13 of this title (relating to Size Classification Criteria), and large- and intermediate-size dams that are proposed to be reconstructed or structurally modified, enlarged, rehabilitated, or altered. The analysis must be submitted to the executive director with the final construction plans and specifications as described in §299.22 of this title.(c) The executive director may require the owner of an existing dam to have a professional engineer perform a geotechnical and structural evaluation or a stability analysis and submit a report, as described in subsections (a) and (b) of this section, following an inspection, as described in §299.42 of this title (relating to Inspections), if the executive director determines that the dam was found to be deficient and the integrity of the dam was threatened. If the owner has a professional engineer prepare a report, the owner shall submit the professional engineer's report to the executive director for review upon completion of the report.(d) When a person proposes one of the following activities near the owner's dam, the owner or the executive director may request that the person have a professional engineer perform an evaluation to determine if the integrity of the dam would be compromised. If the person has a report prepared by a professional engineer, the person shall submit the evaluation report to the executive director and the owner for review and approval before any work is performed for a proposal to:(1) dredge the reservoir within 200 feet of the dam;(2) install a utility line or pipeline in the dam or in the spillways that requires significant excavation in the dam or spillways;(3) construct a road across the dam or spillways or within 200 feet of the dam;(4) drill oil or gas wells, perform horizontal drilling or fracturing, or perform oil or gas exploration within 500 feet of the dam and spillways; or(5) blast within 1/2 mile of the dam.</content><note type="source"><p>Source Note: The provisions of this §299.16 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scB/s299.17"><num value="299.17">§299.17</num><heading>Alternatives to Upgrading Dams</heading><content>(a) An owner may elect to implement alternative methods, instead of upgrading the dam using structural methods, to meet minimum hydrologic criteria by submitting to the executive director:(1) a plan for meeting the requirements in §299.15(a)(3) of this title (relating to Hydrologic and Hydraulic Criteria for Dams);(2) a plan for meeting the requirements in §299.15(a)(4) of this title;(3) a plan for removing the dam, as described in §299.51 of this title (relating to Removal or Breach of Dams);(4) a plan for lowering the reservoir level to a level that will allow it to meet the appropriate minimum hydrologic criteria; or(5) a plan using a combination of structural and non-structural methods as proposed by the owner's professional engineer.(b) The executive director shall review the owner's proposal and respond as described in §299.22(e) of this title (relating to Review and Approval of Construction Plans and Specifications).</content><note type="source"><p>Source Note: The provisions of this §299.17 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c299/scC"><num value="C">SUBCHAPTER C</num><heading>CONSTRUCTION REQUIREMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c299/scC/s299.21"><num value="299.21">§299.21</num><heading>Applicability</heading><content>(a) This subchapter applies only to construction requirements, including submittal, review, and approval of engineering plans and specifications, inspections, reports, and records, for the construction of a proposed dam or the reconstruction, modification, enlargement, rehabilitation, alteration, or repair of an existing dam:(1) requiring a water rights permit authorization;(2) requiring an Edwards Aquifer protection plan;(3) originally designed and constructed with the assistance and written concurrence of the Natural Resources Conservation Service under authorization of the Flood Control Act of 1944 (as amended), Public Law 78-534, the Watershed Protection and Flood Prevention Act of 1954 (as amended), Public Law 83-566, the pilot watershed program under the Flood Prevention of the Department of Agriculture Appropriation Act of 1954, Public Law 156-67, or Subtitle H of Title XV of the Agriculture and Flood Act of 1981, the Resource Conservation and Development Program, but being proposed to be reconstructed, modified, enlarged, rehabilitated, altered, or repaired without the assistance and written concurrence of the Natural Resources Conservation Service;(4) used for a pumped storage facility;(5) used for temporary detention purposes and impounding a maximum storage capacity of 200 acre-feet or more; or(6) that is small and classified as either significant- or high-hazard, as defined in §299.13 and §299.14 of this title (relating to Size Classification Criteria; and Hazard Classification Criteria; respectively), and exempt from a water rights permit under Texas Water Code, §11.142.(b) This subchapter does not apply to:(1) dams for which an exception is approved according to §299.5 of this title (relating to Exception) to the extent for which the exemption is granted;(2) proposed dams designed and constructed, or existing dams designed and modified, rehabilitated, or repaired, with the assistance and written concurrence of the Natural Resources Conservation Service under authorization of the Flood Control Act of 1944 (as amended), Public Law 78-534, the Watershed Protection and Flood Prevention Act of 1954 (as amended), Public Law 83-566, the pilot watershed program under the Flood Prevention of the Department of Agriculture Appropriation Act of 1954, Public Law 156-67, or Subtitle H of Title XV of the Agriculture and Flood Act of 1981, the Resource Conservation and Development Program;(3) proposed dams designed and constructed, or existing dams designed and modified, rehabilitated, or repaired for mining purposes and approved and inspected by the Mine Safety and Health Administration;(4) small, low-hazard dams, as defined in §299.13 and §299.14 of this title, exempted from a water rights permit under Texas Water Code, §11.142; and(5) maintenance or emergency repairs, as defined in §299.2 of this title (relating to Definitions).</content><note type="source"><p>Source Note: The provisions of this §299.21 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scC/s299.22"><num value="299.22">§299.22</num><heading>Review and Approval of Construction Plans and Specifications</heading><content>(a) General. (1) The owner shall submit final construction plans and specifications, which are sealed, signed, and dated by a professional engineer, to the executive director for review and approval before commencing construction of a proposed dam or the reconstruction, modification, enlargement, rehabilitation, alteration, or repair of an existing dam. Emergency repairs are defined in §299.2(23) of this title (relating to Definitions) and §299.45 of this title (relating to Emergency Repairs). (2) The executive director shall not issue approval of final construction plans and specifications for construction of a proposed dam or the reconstruction, modification, enlargement, rehabilitation, alteration, or repair of an existing dam until a water rights permit or an Edwards Aquifer protection plan, if required, is issued. (3) The executive director shall not issue approval of final construction plans and specifications for construction of a proposed dam or the reconstruction, modification, enlargement, rehabilitation, alteration, or repair of an existing dam unless the plans and specifications include language, or design criteria, that requires the proposed contractor to develop a Storm Water Pollution Prevention Plan and submit a Notice of Intent (NOI) for coverage under the State of Texas Construction General Permit (TXR150000), if applicable. (4) The owner shall not allow construction of a proposed dam or the reconstruction, modification, enlargement, rehabilitation, alteration, or repair of an existing dam to be commenced before the executive director's review of the final construction plans, specifications, and other engineering reports and the owner receives written approval of the final construction plans and specifications. The owner shall provide a copy of the executive director's written approval to the contractor before commencing construction. (5) Construction of a proposed dam or the reconstruction, modification, enlargement, rehabilitation, alteration, or repair of an existing dam shall be performed according to the final construction plans and specifications approved by the executive director unless construction change orders have been approved as indicated in §299.26 of this title (relating to Construction Change Orders). (b) Construction plans. (1) Construction plans for proposed dams must be 22 inches by 34 inches in size. The plans may be reduced to 11 inches by 17 inches in size if all details are clearly legible and an accurate scale is included. A scale must be included on all sheets of the construction plans. The plans must include the following, as applicable: (A) a vicinity map that shows the location of the proposed dam and appurtenant structures with respect to: (i) boundaries of political subdivisions; (ii) streams; (iii) highways; (iv) railroads; (v) pipelines; (vi) transmission lines; and (vii) utilities; (B) a topographic map of the dam site with: (i) contour intervals not to exceed five feet; (ii) latitude and longitude (in decimal degrees to six decimal places) of the midpoint of the dam using the North American Vertical Datum of 1988 conus datum; and (iii) a superimposed plan of the dam showing the locations of any: (I) spillways; (II) outlet conduit; (III) borings and test pits; (IV) possible borrow areas; and (V) other structures. (C) a profile of the dam site taken on the long axis of the dam showing: (i) the location of the outlet conduit and each spillway; (ii) the proposed bottom of the core trench; and (iii) elevations of all features. (D) a profile of each spillway along its long axis; (E) a log of all borings showing the classification of materials encountered below the surface, if not provided in a separate geotechnical report; (F) a cross section of the dam at maximum section showing complete details and dimensions; (G) detailed sections of outlet conduits, control works, and spillways with a sufficient number and detail to delineate all of these features; (H) the proposed location of all permanent instrumentation, pressure cells, settlement plates, piezometers, inclinometers, slope indicator casings, data acquisition systems, or other devices; (I) the requirements, or design criteria, for the proposed contractor to develop a Storm Water Pollution Prevention Plan and submit a NOI, if applicable, or authorization under TXR150000; and (J) other design standards as described in the most current version, at the time of the design, of the agency's Design and Construction Guidelines for Dams in Texas. (2) Construction plans for the reconstruction, modification, enlargement, rehabilitation, alteration, or repair of existing dams must be 22 inches by 34 inches in size. The plans may be reduced to 11 inches by 17 inches in size if all details are clearly legible and an accurate scale is included. A scale must be included on all sheets of the construction plans. The plans must include the following, as applicable: (A) a vicinity map that shows the location of the dam and spillways with respect to: (i) boundaries of political subdivisions; (ii) streams; (iii) highways; (iv) railroads; (v) pipelines; (vi) transmission lines; and (vii) utilities. (B) detailed sections of the dam, spillways, outlet conduit, or control works being enlarged, altered, or repaired with sufficient detail to delineate the work to be performed; (C) a log of all borings, if necessary, showing the classification of materials encountered below the surface, if not provided in a separate geotechnical report; (D) the requirements, or design criteria, for the proposed contractor to develop a Storm Water Pollution Prevention Plan and submit a NOI, if applicable or authorization under TXR150000; and (E) other design criteria as described in the most current version, at the time of the design, of the agency's Design and Construction Guidelines for Dams in Texas. (c) Specifications. The specifications must include the following: (1) the requirements for the various types of materials to be used in the construction or reconstruction, modification, enlargement, rehabilitation, alteration, or repair of the dam, spillways, outlet conduits, and control works; (2) a provision that plans and specifications will not be substantially changed without either written approval of the executive director before the work is started, or notification of the changes as defined in §299.26 of this title; (3) a requirement that the proposed contractor develop and implement a Storm Water Pollution Prevention Plan, if applicable, and submit an NOI for authorization under TXR150000; and (4) other design specifications as described in the most current version, at the time of the design, of the agency's Design and Construction Guidelines for Dams in Texas. (d) Engineering reports and plans. (1) Engineering reports that may be required by the executive director for review include: (A) a geotechnical, geological, and structural evaluation report that includes the information described in §299.16 of this title (relating to Structural Evaluation of Dams); (B) a stability analysis for proposed large- and intermediate-size dams as defined in §299.13 of this title (relating to Size Classification Criteria), and large- and intermediate-size dams that are proposed to be reconstructed or structurally modified, enlarged, rehabilitated, or altered, as described in §299.16 of this title; (C) a hydrologic and hydraulic report for proposed dams and dams that are to be reconstructed, modified, enlarged, rehabilitated, altered, or repaired, that includes the information described in the most current version, at the time of the analysis, of the agency's Hydrologic and Hydraulic Guidelines for Dams in Texas; (D) a report on proposed instrumentation for proposed large dams and existing large dams, as defined in §299.13 of this title, that are to be reconstructed, modified, enlarged, rehabilitated, altered, or repaired. This report must include: (i) types and locations of proposed instrumentation; (ii) depths of instrumentation; and (iii) frequency and duration of data collection. (E) any reports prepared for addressing site-specific conditions and recommendations. (2) Engineering plans that may be required by the executive director for review include: (A) a quality control and assurance plan for all proposed dams. This plan must include: (i) designation and qualifications of the on-site inspector(s); (ii) designation of a testing laboratory; (iii) types and frequency of tests to be conducted; and (iv) a construction schedule. (B) a plan for closure of any proposed dam that requires a closure section. This plan must include: (i) the percentage of construction work that will be completed or the amount of construction that would be completed before closure would start; (ii) the sequence to be followed during closure; and (iii) the estimated time to complete closure. (C) a plan for addressing possible emergencies that threaten the integrity of the dam for all proposed high- and significant-hazard dams during construction. This plan must include: (i) a flow chart for notification of emergency management officials and the downstream public; (ii) identification of possible emergencies that could occur during construction and potential consequences; (iii) technical requirements for addressing any possible emergencies; and (iv) responsibilities of all parties. (e) Review and approval process. (1) The executive director shall review the final construction plans, specifications, and engineering reports and plans according to the most current version, at the time of the design, of the agency's Design and Construction Guidelines for Dams in Texas. (2) If the final construction plans and specifications meet the requirements of this chapter and accepted engineering practices, the executive director shall issue written approval to the owner unless the plans and specifications are for a proposed dam and have been submitted as part of the application for a water rights permit or for an Edwards Aquifer protection plan. (A) If the final construction plans and specifications are for a proposed dam and have been submitted as part of the application for a water rights permit, the executive director shall advise the owner that the plans and specifications meet the requirements of this chapter and accepted engineering practices. However, the executive director shall not issue written approval of the final construction plans and specifications until the water rights permit is issued and a time limitation section, in compliance with Texas Water Code, Chapter 11, has been added to the water rights permit requiring construction of a proposed dam or the reconstruction, modification, enlargement, rehabilitation, alteration, or repair of an existing dam to be started and completed within specified time frames. (B) If the final construction plans and specifications are for a proposed dam and have been submitted as part of the application for an Edwards Aquifer protection plan, the executive director shall not issue written approval of the final construction plans and specifications until the Edwards Aquifer protection plan is issued by the appropriate regional office. (3) If the final construction plans and specifications do not meet the requirements of this chapter, the executive director shall provide the owner written comments on the items needing revision. (4) After receipt of the revised final construction plans and specifications or an addendum to the plans and specifications, the executive director shall review and issue written approval to the owner if all requirements in this chapter and accepted engineering practices have been met. (5) If all requirements still have not been met, the executive director shall either provide the owner written comments on the items still needing revision or schedule a meeting with the owner to discuss the items needing revision. (6) Upon submission of the revised, and agreed on, final construction plans and specifications or an addendum to the plans and specifications, the executive director shall issue written approval to the owner if applicable rules and accepted engineering practices have been met. (f) Time limitations after approval of final construction plans and specifications. (1) If construction of a proposed dam or the reconstruction, modification, enlargement, rehabilitation, alteration, or repair of an existing dam is not commenced within four years of the executive director's approval of final construction plans and specifications, the approval will be subject to reevaluation. If rules, regulations, and accepted engineering practices or the downstream hazard classification have changed during the four-year period, the approval may be considered invalid regardless of any extension of time authorizations given according to Chapter 295 of this title (relating to Water Rights, Procedural) and Chapter 297 of this title (relating to Water Rights, Substantive). (2) If the executive director determines that the approval is invalid, the executive director shall notify the owner in writing that new construction plans, specifications, and other engineering reports must be submitted before the work may commence. (3) The new construction plans and specifications must meet the requirements of the rules and regulations in effect at the time of the reevaluation.</content><note type="source"><p>Source Note: The provisions of this §299.22 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scC/s299.23"><num value="299.23">§299.23</num><heading>Maintenance of Construction Records</heading><content>(a) The owner shall maintain construction records during construction of a proposed dam or the reconstruction, modification, enlargement, rehabilitation, alteration, or repair of an existing dam, which include:(1) approved construction plans and specifications;(2) approved construction change orders;(3) construction test results as described in subsection (b) of this section;(4) approval letters; and(5) construction inspection reports and other engineering reports that may be developed during construction.(b) The owner shall furnish copies of the construction test results for high- and significant-hazard dams to the executive director for review at least once a month during the construction period to document compliance with the approved plans and specifications and the requirements in this chapter. The test results to be submitted must include, as applicable:(1) soil moisture-density test results;(2) soil dispersion test results; and(3) concrete trial batch design test and compression test results.(c) The owner shall also record, as applicable:(1) final bottom width and elevations of core and cutoff trenches;(2) structural excavations;(3) documentation of permanent sheet piles or bearing piles; and(4) documentation of foundation grouting, de-watering problems, or observations during the construction period of any instruments installed to measure movements, stresses, and pore pressure.(d) The owner shall maintain the construction records as described in subsections (a) - (c) of this section in a secure location at the construction site or at a location designated by the owner that is immediately accessible to the owner until the completion of construction.(e) After completion of construction, the owner shall transfer the construction records in subsections (a) - (c) of this section to a permanent, secure location designated by the owner that is immediately accessible to the owner as described in §299.46 of this title (relating to Records).</content><note type="source"><p>Source Note: The provisions of this §299.23 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scC/s299.24"><num value="299.24">§299.24</num><heading>Construction Progress Reports</heading><content>(a) The owner shall have a professional engineer provide the following information to the executive director in writing within ten working days after construction on the dam commences:(1) the actual start date;(2) the contractor's name and address; and(3) the name and telephone number of the professional engineer or inspector that will be on site during construction.(b) The owner shall have a professional engineer submit monthly reports of progress on high- and significant-hazard dams to the executive director during construction. The report must include:(1) the work accomplished during the month;(2) the percent of the contract time used;(3) the percentage of completion of the project on the date of the report;(4) a description of problem areas encountered during construction;(5) the dates of the reporting period; and(6) any changes in the contact information.</content><note type="source"><p>Source Note: The provisions of this §299.24 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scC/s299.25"><num value="299.25">§299.25</num><heading>Construction Inspection</heading><content>(a) The owner shall have a professional engineer, or a qualified inspector, provided the inspector is under the direct supervision of the owner's professional engineer, conduct inspections of the construction work to determine if the work is in compliance with approved construction plans, specifications, and accepted engineering practices. (b) The executive director may make periodic inspections of the construction to determine if the dam is in compliance with approved plans and specifications. If the executive director's inspection reveals that the dam is not being constructed according to the approved construction plans and specifications, the executive director shall notify the owner by telephone and in writing as outlined in the most current version, at the time of the evaluation, of the agency's Design and Construction Guidelines for Dams in Texas of the deficiency items or violations noted. The executive director shall direct the owner to take the necessary action to bring the project into compliance with the approved plans and specifications within 30 days after being notified. (c) The owner, at the owner's expense, shall submit documentation of the work or tests performed or sufficient information to enable the executive director to determine if conformity with approved plans and specifications is accomplished.</content><note type="source"><p>Source Note: The provisions of this §299.25 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scC/s299.26"><num value="299.26">§299.26</num><heading>Construction Change Orders</heading><content>(a) The owner shall submit any proposed changes to the approved construction plans and specifications to the executive director for review and approval as a construction change order as defined in §299.2(13) of this title (relating to Definitions). The construction change order must be signed, sealed, and dated by a professional engineer. (b) The owner shall submit a construction change order before work starts on the proposed changes, if possible. If there is an emergency requiring immediate action, a construction change order may be submitted after the work is performed. However, the owner or the owner's professional engineer shall inform the executive director by telephone or electronic mail of the action being taken as soon as the situation allows, but no later than 24 hours after becoming aware of the emergency or the need for a change order. If the time needed for an approval of a change order will require that the construction be halted, the work may be performed once the construction change order is signed, sealed, and dated by the owner's professional engineer and submitted for review. However, if the construction change order is not approved, the owner shall be responsible for having any work performed or modified to reflect the approved construction change order, as needed. (c) The executive director shall review a construction change order according to the most current version, at the time of the review, of the agency's Design and Construction Guidelines for Dams in Texas. (d) The executive director may request that the owner submit a construction change order if, during construction, the executive director finds that changes to the construction plans and specifications are necessary to ensure the integrity of the dam. (e) If the proposed construction change order would result in a change in the permitted water rights, the owner shall submit an application for an amendment of the water rights permit.</content><note type="source"><p>Source Note: The provisions of this §299.26 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scC/s299.27"><num value="299.27">§299.27</num><heading>Closure of Dam</heading><content>(a) The owner shall have a professional engineer submit a written request to close the dam to the executive director for approval as described in the most current version, at the time of the closure, of the agency's Design and Construction Guidelines for Dams in Texas before beginning closure of the dam. The request must include: (1) a copy of the owner's emergency action plan; and (2) documentation that all parts of the proposed plan for closure of the dam, as described in §299.22(d)(2)(B) of this title (relating to Review and Approval of Construction Plans and Specifications), have been met. (b) The owner may begin closure of the dam after receiving written approval from the executive director. (c) If appropriate, the owner shall notify the executive director in writing that the gate operation plan has been completed with the request for closure of the dam as described in §299.32 of this title (relating to Gate Operation Plan).</content><note type="source"><p>Source Note: The provisions of this §299.27 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scC/s299.28"><num value="299.28">§299.28</num><heading>Deliberate Impoundment</heading><content>(a) The owner of a dam and reservoir designed to impound more than 1,000 acre-feet at normal storage capacity shall submit a written request to the executive director to begin deliberate impoundment of water, as defined in §299.2(17) of this title (relating to Definitions). The owner shall submit a letter from the owner's professional engineer stating that the dam is substantially complete.(b) The owner may begin deliberate impoundment after receiving written approval from the executive director.</content><note type="source"><p>Source Note: The provisions of this §299.28 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scC/s299.29"><num value="299.29">§299.29</num><heading>Notification of Completion</heading><content>(a) The owner shall have the professional engineer of record submit written notification, which is sealed, signed, and dated, to the executive director within 45 calendar days after the work is substantially completed on the construction of a proposed dam or the reconstruction, modification, enlargement, rehabilitation, alteration, or repair of an existing dam. This notification may be submitted separately from the record drawings.(b) The owner's professional engineer shall state that, to the best of the professional engineer's knowledge, the construction or reconstruction, modification, enlargement, rehabilitation, alteration, or repair was completed in substantial compliance with the approved plans and specifications and any approved construction change orders.(c) For projects excepted under §299.5 of this title (relating to Exception), the owner shall notify the executive director in writing that construction or reconstruction, modification, enlargement, rehabilitation, alteration, or repair was completed.</content><note type="source"><p>Source Note: The provisions of this §299.29 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scC/s299.30"><num value="299.30">§299.30</num><heading>Record Drawings</heading><content>(a) Within six months after final completion of construction, the owner shall submit to the executive director a complete set of record drawings of the project for filing with the permanent records. These record drawings must show all revisions made during construction, including the permanent reference mark(s); be sealed, signed, and dated by the professional engineer; and be identified as final record drawings.(b) If no changes were made during construction, the owner may submit in writing a statement, which is signed, sealed, and dated by the professional engineer, that no changes were made during construction.</content><note type="source"><p>Source Note: The provisions of this §299.30 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scC/s299.31"><num value="299.31">§299.31</num><heading>Permanent Reference Mark</heading><content>The owner of a proposed dam or a dam proposed to be reconstructed, modified, enlarged, rehabilitated, altered, or repaired shall have the professional engineer of record establish one or more permanent reference mark(s) for future use near, but separate from, the project. Accurate location(s) and elevation(s) above mean sea level for the permanent reference mark(s) must be shown on the record drawings. Horizontal and vertical measurements recorded with a global positioning system (GPS) receiver must be based on the North American Datum of 1983 and the North American Vertical Datum of 1988 horizontal and vertical reference datums. Elevation data must be recorded using a survey instrument or survey grade GPS receiver. Latitude and longitude measurements must be provided in decimal degrees to six decimal places.</content><note type="source"><p>Source Note: The provisions of this §299.31 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scC/s299.32"><num value="299.32">§299.32</num><heading>Gate Operation Plan</heading><content>The owner shall have a professional engineer develop a gate operation plan, as described in §299.44(c) of this title (relating to Gate Operation Plan), for the owner of a proposed dam with a gated principal spillway before completion of construction.</content><note type="source"><p>Source Note: The provisions of this §299.32 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scC/s299.33"><num value="299.33">§299.33</num><heading>Operation and Maintenance</heading><content>(a) The owner shall develop operation and maintenance procedures as described in §299.43 of this title (relating to Operation and Maintenance) for all proposed dams before completion of construction.(b) If applicable, the owner shall provide the date that the owner will turn over the operation and maintenance of the dam to a property owner association, homeowner association, or other designated group and the new contact information in writing to the executive director.</content><note type="source"><p>Source Note: The provisions of this §299.33 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c299/scD"><num value="D">SUBCHAPTER D</num><heading>OPERATION AND MAINTENANCE OF DAMS</heading><section identifier="/us/state/tx/tac/t30/p1/c299/scD/s299.41"><num value="299.41">§299.41</num><heading>Owner's Responsibilities</heading><content>(a) The owner shall be responsible for operating and maintaining the dam and appurtenant structures in a safe manner.(b) The owner shall be responsible for addressing all maintenance and safety concerns at the dam and appurtenant structures identified during any inspections conducted by the executive director or the owner.(c) The owner shall ensure that necessary maintenance, repairs, alterations, or modifications are initiated and completed in a timely manner following any inspection.(d) Nothing in this chapter or in orders issued by the commission shall be construed to relieve an owner of a dam or reservoir of the legal duties, obligations, or liabilities incident to ownership or operation.</content><note type="source"><p>Source Note: The provisions of this §299.41 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scD/s299.42"><num value="299.42">§299.42</num><heading>Inspections</heading><content>(a) Periodic engineering inspections by the executive director.(1) The executive director may enter any person's property at any time for the purpose of inspecting any dam to determine if the dam is being maintained in a safe manner.(2) The executive director shall perform periodic engineering inspections of dams based on hazard classification, as defined in §299.14 of this title (relating to Hazard Classification Criteria), on the following frequency.(A) High-hazard dams shall be inspected once every five years.(B) Significant-hazard dams shall be inspected once every five years.(C) Large dams, as defined in §299.13 of this title (relating to Size Classification Criteria), in the low-hazard classification shall be inspected once every five years.(D) Small and intermediate dams, as defined in §299.13 of this title, in the low-hazard classification shall not be included in the periodic inspection program. These dams may be inspected for the purposes of:(i) determining hazard classification;(ii) assessing condition of the dam following an emergency such as a flooding event;(iii) assessing condition of the dam that could threaten the integrity of the dam as a result of a request by the owner;(iv) assessing the condition of the dam as a result of a complaint; or(v) assessing the condition of a dam as a result of a request from someone other than the owner.(3) The executive director's engineering inspection may consist of:(A) conducting a visual inspection and evaluation of the condition of the dam and appurtenant structures, the downstream area, and any other areas affected by the dam;(B) taking measurements of elevations, dimensions, slopes, and locations of the dam and appurtenant structures;(C) taking photographs for documentation;(D) conducting an evaluation of the hazard classification to determine if the classification should be changed as a result of the inspection;(E) reviewing and evaluating the owner's operation, maintenance, and inspection programs and all other records; and(F) reviewing the owner's emergency action plan, including the gate operation plan if applicable.(4) The executive director shall prepare a written inspection report that provides the findings from the inspection and lists recommendations for actions to be taken to assist the owner in maintaining the continued integrity, safety, and operation of the dam. The executive director may require the owner to have the owner's professional engineer perform hydrologic, hydraulic, or structural evaluations of the dam as described in Subchapter B of this chapter (relating to Design and Evaluation of Dams). The executive director shall provide the owner with a copy of the written report, or letter, as soon as practical after the inspection.(5) The owner shall provide a written response to the executive director, if requested, and include a plan of action with time frames for addressing all of the executive director's recommendations from the inspection.(b) Inspections by the owner.(1) The owner, or the owner's representative, shall inspect the dam and appurtenant structures on a regular time frame as part of the owner's operation and maintenance procedures, as defined in §299.43 of this title (relating to Operation and Maintenance), following significant rainfall events, and during emergency events as described in §299.61 of this title (relating to Emergency Action Plans). The owner or the owner's representative shall perform maintenance inspections at least once a year.(2) The owner shall notify the executive director by telephone or electronic mail within 72 hours and in writing within five working days after becoming aware of any problems or damage that pose a significant threat to the dam's safety, integrity, or operation.(3) The owner shall submit a copy of all engineering inspection reports prepared by the owner's professional engineer under this section to the executive director for review within 45 calendar days after receipt of the report from the professional engineer. The report prepared by the owner's professional engineer must consist of the inspection date, description of the items observed during the inspection, the findings, and recommendations.(4) The owner may elect to have an engineering inspection by a professional engineer more frequently than described in subsection (a)(2) of this section. The executive director may use the engineering inspection report prepared for the owner by the professional engineer in lieu of making a periodic inspection as described in subsection (a)(2) of this section. A report prepared by a professional engineer with the Federal Energy Regulatory Commission, Natural Resources Conservation Service, Bureau of Reclamation, Corps of Engineers, or Mine Safety and Health Administration may also be used in lieu of the periodic inspection described in subsection (a)(2) of this section.</content><note type="source"><p>Source Note: The provisions of this §299.42 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scD/s299.43"><num value="299.43">§299.43</num><heading>Operation and Maintenance</heading><content>(a) The owners of all dams shall develop and implement an operation and maintenance plan. The owner may use the most current version, at the time of the plan development, of the agency's Guidelines for Operation and Maintenance of Dams in Texas, a manual, a checklist, or some other procedure to demonstrate implementation of the program. Operation and maintenance activities that must be addressed include, but are not limited to: (1) the schedules for both engineering and maintenance inspections performed by the owner or the owner's professional engineer; (2) any restrictions imposed by the professional engineer's design; (3) a list of maintenance items and a schedule for addressing each item, including, but not limited to: (A) replacing riprap; (B) eliminating animal burrows; (C) removing blockage from the principal spillway inlet and outlet structures and removing obstructions from the emergency spillways, including fences; (D) lubricating, repairing, painting, and exercising gates or valves, if in working condition, or if applicable; (E) removing corrosion on gates and other metal appurtenant structures; (F) sealing of cracks and joints in concrete; (G) preventing or controlling erosion, including animal and vehicular trails and wave action erosion; (H) eliminating small trees (less than or equal to four inches in diameter) and brush on the dam and all trees and brush in the spillways and adjacent to concrete structures; (I) maintaining adequate grass cover on earthen dams and spillways; (J) maintaining proper function of foundation or toe drains; and (K) correcting any other items that may impact the dam or appurtenant structures; and (4) if applicable, a plan for monitoring instrumentation in the dam and appurtenant structures, to include: (A) a list of all types of instruments, instrument number, and locations; (B) schedules and procedures for reading and maintenance of each instrument; and (C) a list of critical readings for each instrument and the process to follow if critical readings are measured. (b) The owner shall document operation and maintenance activities undertaken and shall provide the documentation to the executive director for review as soon as possible upon request of the executive director.</content><note type="source"><p>Source Note: The provisions of this §299.43 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scD/s299.44"><num value="299.44">§299.44</num><heading>Gate Operation Plan</heading><content>(a) The owners of all existing intermediate- and large-size dams, as defined in §299.13 of this title (relating to Size Classification Criteria), with gated spillways shall have a professional engineer develop a gate operation plan within two years after the effective date of the rules. The owner's professional engineer shall notify the executive director in writing that the gate operation plan has either been completed or a gate operation plan exists that meets the requirement of this section. If an owner cannot complete the gate operation plans within the two years required in subsection (b) of this section, the owner shall request an extension of time showing cause or a reasonable basis for the need for an extension and providing a time frame to complete. The request shall be submitted to the executive director for review and approval.(b) The gate operation plan must include:(1) gate procedures for use during normal operating conditions, flood events, other varying hydrologic events, and power failures; and(2) a method for coordinating releases with owners of other dams in the river basin, if applicable.(c) The gate operation plan shall be considered an appendix to the owner's emergency action plan. If the owner submits a copy of the gate operation plan to the executive director, the executive director shall file it with the owner's emergency action plan in the agency's confidential, permanent records.</content><note type="source"><p>Source Note: The provisions of this §299.44 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scD/s299.45"><num value="299.45">§299.45</num><heading>Emergency Repairs</heading><content>(a) The owner shall undertake emergency repairs under the supervision of a professional engineer and implement the emergency action plan as soon as possible after the emergency is discovered and evaluated. The owner may start emergency repairs without approval from the executive director.(b) The owner shall notify the executive director by telephone, electronic mail, or facsimile of the action being taken as soon as the emergency situation allows, but no more than 12 hours after the emergency is discovered and evaluated.(c) The owner shall have a professional engineer develop plans for permanent repairs as soon as the emergency is over. The owner shall have a professional engineer submit the plans for review and approval, as described in §299.22 of this title (relating to Review and Approval of Construction Plans and Specifications).</content><note type="source"><p>Source Note: The provisions of this §299.45 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scD/s299.46"><num value="299.46">§299.46</num><heading>Records</heading><content>(a) All owners shall maintain records, if available, on the inspection, operation, and maintenance of their dams, including, but not limited to:(1) inspection checklists, reports, and correspondence;(2) a log of all operation and maintenance activities undertaken;(3) a gate operation plan, if applicable;(4) a log of all repairs undertaken, including the date of the repairs and the work performed;(5) a log of instrumentation readings, if applicable;(6) a log of all flood events and emergencies; and(7) approved plans, record drawings, specifications, approval letters, construction records, and other engineering and design reports.(b) Owners shall maintain legible or electronic copies in a secure location, designated by the owner, that is immediately accessible to the owner for the life of the dam.(c) Owners shall provide copies of all records or access to view the records to the executive director upon request.(d) An owner shall provide all records to a new owner when there is an ownership change.</content><note type="source"><p>Source Note: The provisions of this §299.46 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c299/scE"><num value="E">SUBCHAPTER E</num><heading>REMOVAL OR BREACH OF DAMS</heading><section identifier="/us/state/tx/tac/t30/p1/c299/scE/s299.51"><num value="299.51">§299.51</num><heading>Removal or Breach of Dams</heading><content>(a) Owners proposing to remove or breach a dam, or owners ordered to remove a deficient dam by the executive director, the commission, or court action, shall submit final plans and specifications to the executive director for review and approval before start of work to remove or breach the dam. (b) The owner shall have a professional engineer submit to the executive director sealed, signed, and dated plans for removing or breaching a dam as outlined in the most current version, at the time of the design, of the agency's Dam Removal Guidelines. (c) The owner may be required to address environmental or social impacts as described in the most current version, at the time of the design, of the agency's Dam Removal Guidelines, which may require approval from other agencies before work can begin. (d) The owner may be required to restore the dam site to blend with the topography of the lake area. (e) If the plans for removal or breaching meet the requirements in subsection (b) of this section, the executive director shall issue written approval to the owner. (f) The owner shall provide the executive director within 45 days after completion of the breach or removal a notification of completion. The executive director shall conduct an inspection after receipt of notification of completion to verify that the removal or breach has been completed in agreement with the plans.</content><note type="source"><p>Source Note: The provisions of this §299.51 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scE/s299.52"><num value="299.52">§299.52</num><heading>Abandonment of Dams</heading><content>If an owner abandons a dam at any time, regardless of hazard classification, the owner shall remove or breach the dam, as described in §299.51 of this title (relating to Removal or Breach of Dams), at the owner's expense, to eliminate any hazard to life and property downstream.</content><note type="source"><p>Source Note: The provisions of this §299.52 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c299/scF"><num value="F">SUBCHAPTER F</num><heading>EMERGENCY MANAGEMENT</heading><section identifier="/us/state/tx/tac/t30/p1/c299/scF/s299.61"><num value="299.61">§299.61</num><heading>Emergency Action Plans</heading><content>(a) The owners of all high- and significant-hazard dams, as defined in §299.13 of this title (relating to Size Classification Criteria) and §299.14 of this title (relating to Hazard Classification Criteria), shall prepare an emergency action plan to be followed by the owner in the event or threat of a dam emergency.(b) The owner of an existing high- or significant-hazard dam shall submit the emergency action plan to the executive director for review within two years after the effective date of the rules unless an extension of the time frame is requested and approved by the executive director as described in subsection (d) of this section.(c) The owner of a proposed high- or significant-hazard dam shall submit the emergency action plan to the executive director before either requesting closure of the dam or upon completion of construction of the dam, if the dam does not require a closure section.(d) The owner shall prepare the emergency action plan using guidelines provided by the executive director or using a format approved by the executive director before the plan is prepared. If an owner owns more than one dam, the owner shall prepare a plan, with timelines, for preparing emergency action plans based on priority determined by hazard and submit the plan to the executive director for review. If an owner cannot complete the emergency action plan within the two years required in subsection (b) of this section, the owner shall request an extension of time showing cause or a reasonable basis for the need for an extension and providing a time frame to complete. The request shall be submitted to the executive director for review and approval.(e) The executive director shall review the emergency action plan and provide any comments in writing to the owner.(f) The executive director shall file the emergency action plan in the agency's confidential, permanent records.(g) The owner shall review the emergency action plan annually, update the emergency action plan as necessary, and submit a copy of the updated portions of the emergency action plan to the executive director annually beginning three years after the effective date of this section. If the emergency action plan was reviewed by the owner and no updates were necessary, the owner shall submit written notification to the executive director that no updates to the emergency action plan have been adopted or implemented.(h) The owner shall perform a table top exercise of the emergency action plan on the frequency provided in the owner's emergency action plan, or at least every five years. A table top exercise is a meeting of the owner and the state and local emergency management personnel in a conference room setting.</content><note type="source"><p>Source Note: The provisions of this §299.61 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scF/s299.62"><num value="299.62">§299.62</num><heading>Security of Dams</heading><content>(a) Owners of high-hazard dams that are notified in writing by the executive director within six months of the effective date of these rules of dams that may need increased security shall address:(1) security at the owner's dams to prevent unauthorized operation or access; and(2) backup power requirements to ensure operation of the dam and appurtenant structures.(b) The owner shall develop a security plan for the dam within two years of being notified by the executive director and shall submit the security plan to the executive director for review and comment. If an owner cannot complete the security plan within the two years, the owner shall request an extension of time showing cause or a reasonable basis for the need for an extension and providing a time frame to complete. The request shall be submitted to the executive director for review and approval.(c) The executive director shall file the security plan in the agency's confidential, permanent files.</content><note type="source"><p>Source Note: The provisions of this §299.62 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c299/scG"><num value="G">SUBCHAPTER G</num><heading>ENFORCEMENT</heading><section identifier="/us/state/tx/tac/t30/p1/c299/scG/s299.71"><num value="299.71">§299.71</num><heading>Enforcement</heading><content>(a) If the executive director alleges violations of this chapter, enforcement action may be pursued according to Texas Water Code, Chapter 7 and §70.5 of this title (relating to Remedies). Remedies include:(1) seeking an emergency order from the commission to either reconstruct, modify, alter, or repair the deficient dam or remove the dam as described in §299.72 of this title (relating to Emergency Orders); or(2) referring to the Office of the Attorney General for civil judicial action, including the assessment of civil penalties and injunctive relief.(b) An owner who willfully fails or refuses to take appropriate action within the time frames addressed in the appropriate executive director enforcement letters is liable for a penalty of not more than $5,000 a day for each day the violation continues.</content><note type="source"><p>Source Note: The provisions of this §299.71 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c299/scG/s299.72"><num value="299.72">§299.72</num><heading>Emergency Orders</heading><content>According to the provisions of Texas Water Code, §12.052, and Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions), the commission may issue emergency orders, without notice to the owner, directing the owner of a deficient dam to take immediate and appropriate action to remedy situations posing a threat to human life or property.</content><note type="source"><p>Source Note: The provisions of this §299.72 adopted to be effective January 1, 2009, 33 TexReg 10465.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c301"><num value="301">CHAPTER 301</num><heading>LEVEE IMPROVEMENT DISTRICTS, DISTRICT PLANS OF RECLAMATION, AND LEVEES AND OTHER IMPROVEMENTS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c301/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c301/scA/s301.1"><num value="301.1">§301.1</num><heading>Interpretation of Legislative Authority</heading><content>The legislature of the State of Texas manifested an intention to protect the public interest by establishing a centralized and coordinated method for planning and review of drainage and reclamation activity. The legislature demonstrated such an intent by causing levees or other improvements and associated projects to be subject always to the supervision of a central statewide authority. It is the purpose of the commission under Texas Water Code, Chapters 5, 16, and 57, to implement this policy by the promulgation of these sections.</content><note type="source"><p>Source Note: The provisions of this §301.1 adopted to be effective May 26, 1986, 11 TexReg 2245; amended to be effective May 5, 2005, 30 TexReg 2553.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scA/s301.2"><num value="301.2">§301.2</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise.(1) As-built plans--The engineering plans and specifications for levees or other improvements which reflect the structures as actually built, for which preliminary plans and final plans were approved, and which are submitted to the executive director for issuance of notice of final approval.(2) Final plans--The final engineering plans and specifications for levees or other improvements submitted to the executive director for review and approval, if not an exempt structure under Texas Water Code, §16.236.(3) Levee(s) or other improvement(s)--Any levee or other improvement, including channel improvements, drainage works, or other projects on, along, or near any stream in this state that is subject to floods, freshets, or overflows, constructed so as to control, regulate, or otherwise change the floodwater of the stream. However, the term does not include:(A) levees or other improvements for which approval by the commission is not required under Texas Water Code, §16.236;(B) bridges, culverts, and roads that are not designed or constructed with the primary purpose to and that do not significantly control, regulate, or otherwise change the floodwaters of a stream;(C) drainage works which do not directly connect to a stream;(D) projects which, when completed, will receive runoff from an area of less than five square miles measured to the lowest point of construction;(E) fences;(F) cutting, clearing, or removing vegetation; and(G) levees and landfills located within the 100-year flood-fringe area, as defined in clauses (i) - (iv) of this subparagraph, as determined by a registered professional engineer using the United States Army Corps of Engineers Hydrologic Engineering Center I and II procedures or other standard procedure acceptable to the executive director;(i) 100-year flood--The peak flood discharge of a stream, based upon statistical data, which would have a 1.0% chance of occurring in any given year;(ii) 100-year flood fringe--That area of the 100-year floodplain outside the 100-year floodway;(iii) 100-year floodplain--That area along a stream during the time the stream is subject to the statistical 100-year flood, as determined by a registered professional engineer using the United States Army Corps of Engineers Hydrologic Engineering Center I and II procedures or other standard procedure acceptable to the executive director;(iv) 100-year floodway--The channel of a stream and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the water surface elevation more than one foot above the 100-year flood elevation prior to encroachment.(4) Levee improvement district or district--Any levee improvement district organized under the provisions of Texas Water Code, Chapter 57.(5) Preliminary plans--The preliminary engineering plans for levees or other improvements submitted for approval by the commission under Texas Water Code, Chapter 16, as required by §301.33 of this title (relating to Preliminary Plans: Data To Be Submitted).</content><note type="source"><p>Source Note: The provisions of this §301.2 adopted to be effective May 26, 1986, 11 TexReg 2245; amended to be effective May 5, 2005, 30 TexReg 2553.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scA/s301.3"><num value="301.3">§301.3</num><heading>Authority To Go on Land</heading><content>The executive director may enter any land or go on any water with appropriate equipment for the purpose of surveillance and inspection with reference to the proposed location of levees or other improvements.</content><note type="source"><p>Source Note: The provisions of this §301.3 adopted to be effective May 26, 1986, 11 TexReg 2245; amended to be effective May 5, 2005, 30 TexReg 2553.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scA/s301.4"><num value="301.4">§301.4</num><heading>Approvals Required</heading><content>(a) The approval of the commission is required for preliminary plans for construction of levees and other improvements other than those which are exempt under Texas Water Code, §16.236. The procedure for submission and approval of preliminary plans for levees and other improvements other than those which are exempt is set forth in Subchapter C of this chapter (relating to Approval of Levees and Other Improvements.)(b) The review and/or approval of the executive director is required for final plans for levees and other improvements. The procedure for submission, review, and approval, if required, is set forth in §301.38 of this title (relating to Procedures Subsequent to Approval of Preliminary Plans).</content><note type="source"><p>Source Note: The provisions of this §301.4 adopted to be effective May 26, 1986, 11 TexReg 2245; amended to be effective May 5, 2005, 30 TexReg 2553.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scA/s301.6"><num value="301.6">§301.6</num><heading>Injunction and Monetary Penalties</heading><content>In accordance with Texas Water Code (TWC), §16.236(b) and (c), the executive director may request the attorney general to file suit in a district court of Travis County to enjoin any such violation or threatened violation of TWC, §16.236, to seek monetary penalties, or both.</content><note type="source"><p>Source Note: The provisions of this §301.6 adopted to be effective May 26, 1986, 11 TexReg 2245; amended to be effective May 5, 2005, 30 TexReg 2553.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c301/scB"><num value="B">SUBCHAPTER B</num><heading>LEVEE IMPROVEMENT DISTRICTS AND FORMATION OF DISTRICT</heading><section identifier="/us/state/tx/tac/t30/p1/c301/scB/s301.21"><num value="301.21">§301.21</num><heading>Procedures Concerning Formation of District</heading><content>(a) Levee improvement districts to which this subchapter applies are formed in accordance with the procedures set forth in Texas Water Code (TWC), Chapter 57.(b) Upon petitioning the county commissioner's court for the creation of the district under TWC, Chapter 57, and giving the notice required by TWC, §57.015, the person or persons petitioning the county commissioner's court shall file with the executive director notice of the hearing before the county commissioner's court on the creation of the district. The notice must state that the petition has been filed with the appropriate county commissioner's court and must include a statement of the petition's general purpose and the time and place of the hearing.(c) In accordance with TWC, §57.016, the executive director shall attend the hearing before the county commissioner's court on the petition to create the district and shall file a written report with the county commissioner's court concerning the necessity, feasibility, probable costs of reclaiming the land of the district from overflow and of draining it properly, and costs of organizing the district and maintaining it for two years. The executive director shall furnish the county commissioner's court with any additional information that is required.</content><note type="source"><p>Source Note: The provisions of this §301.21 adopted to be effective May 26, 1986, 11 TexReg 2246; amended to be effective May 5, 2005, 30 TexReg 2553.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c301/scC"><num value="C">SUBCHAPTER C</num><heading>APPROVAL OF LEVEES AND OTHER IMPROVEMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.31"><num value="301.31">§301.31</num><heading>Application for Approval of Preliminary Plans for Levees and Other Improvements</heading><content>Any person who seeks approval of the commission under Texas Water Code, §16.236, for construction of any levee or other improvement shall file an application with the executive director, together with a set of preliminary plans for the levee or other improvement, in duplicate. The preliminary data so submitted must be in sufficient detail to permit the executive director to evaluate the project. Ordinarily, existing maps and information are adequate for the development of acceptable preliminary plans without the necessity of extensive site clearing or detailed surveys. The application and preliminary plans must comply with Subchapter D of this chapter (relating to Notice and Hearing).</content><note type="source"><p>Source Note: The provisions of this §301.31 adopted to be effective May 26, 1986, 11 TexReg 2246; amended to be effective May 5, 2005, 30 TexReg 2553.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.32"><num value="301.32">§301.32</num><heading>Purpose of Preliminary Plans</heading><content>The purpose of the preliminary plans is primarily to allow the executive director to determine whether the project appears safe and is compatible with existing hydraulic conditions in the area. Preliminary plans should clearly reflect the design concept and indicate how the design was developed. Details of project construction are not required to be shown in the preliminary plans. It is the policy of the commission to evaluate the project from preliminary plans in order that the applicant may determine whether the project concept is to be approved prior to the incurring of large expenditures for a complete development of the final plans and specifications.</content><note type="source"><p>Source Note: The provisions of this §301.32 adopted to be effective May 26, 1986, 11 TexReg 2246.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.33"><num value="301.33">§301.33</num><heading>Preliminary Plans: Data To Be Submitted</heading><content>(a) The applicant shall submit maps, plats, drawings, computations and narratives which shall illustrate and describe the following:(1) the location and extent of the proposed works, including the county or counties affected by the project. When possible, the applicant should satisfy this requirement by submitting a detailed map which can be superimposed by the executive director upon a United States Geological Survey 7-1/2 minute quadrangle map, or if such is unavailable, on a suitable contour map;(2) the name and course of the river, stream, or other watercourse, with the direction of flow indicated, which is associated with or would be affected by the proposed project;(3) the location and ownership of all existing levees, channels, canals, reservoirs, dams, or other works of similar character, which may be affected by the proposed project, indicated by appropriate symbol to differentiate such works from the proposed works;(4) the location and ownership, including current mailing address of owners, and location, shown by map, of all properties:(A) lying within any proposed protected area; or(B) adjacent to the proposed works or which may be affected by the project's alteration of the flood flows of the stream. The purpose of this second requirement is so that all interested property owners may be notified of the application. The applicant, the executive director, and the commission shall liberally construe what areas are potentially affected by the proposed project to ensure that all landowners within the vicinity whose land could be potentially impacted by the proposed project receive notice. Failure of the applicant to adequately provide the information will delay the processing of the application. The executive director may submit an application to the commission for summary dismissal if the applicant refuses to supply this information.(b) The following flood data is required.(1) The project design shall be based on a statistical 100-year flood as a minimum where substantial property loss and/or risk of life may be possible. The executive director will review the plans in accordance with the degree of hazard inherent in the proposed project and he may recommend that the project design be based on other than the 100-year flood should only agricultural land (no structures) be involved and no interests other than those of the applicant be affected by the project. Flood level data available from state or federal agencies or other sources supportive of the project design on a statistical basis shall be provided by the applicant for consideration in the selection of design flood frequency and elevation.(2) The preliminary plans shall demonstrate the effects the proposed project will impose on existing flood conditions. This shall be clearly illustrated by providing separate design floodwater surface-elevation profiles and design-flood delineations of the floodplain with and without the project in place.(3) Additional flood water surface-elevation profiles and design-flood delineations of the floodplain should be provided for levee or landfill projects with the project in place and with a comparable levee or landfill on the opposite site of the stream if such do not exist but are plausible.</content><note type="source"><p>Source Note: The provisions of this §301.33 adopted to be effective May 26, 1986, 11 TexReg 2246.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.34"><num value="301.34">§301.34</num><heading>Criteria For Approval of Preliminary Plans</heading><content>The commission shall use the following criteria and those listed in §301.33(b) of this title (relating to Preliminary Plans: Data To Be Submitted) in the review and consideration of applications for approval of plans for levees and other improvements.(1) Structural integrity. Construction must be based upon sound engineering principles. Structural integrity must withstand any waters which the levee or other improvement is intended to restrain or carry, considering all topographic features, including existing levees.(2) Compatibility with existing hydraulic conditions. Plans must be compatible with the existing hydraulic conditions. Consideration must be given to any possible deleterious effects, such as overtopping or undermining, on any existing system of levees, channel improvements, landfills, structures, or similar improvements, or on adjacent properties. With regard to applications for approval of levees or landfills, plans will be evaluated with a consideration of comparable levee or landfill development on the opposite side of a stream if such do not exist but are plausible.(3) Safety. Any proposed levee or other improvement must be designed so that it will not increase flooding or divert waters in such a way that any person's life or property will be endangered or subjected to significantly increased flooding. The commission shall not approve plans for levees or other improvements which will significantly increase flood rises on any person's land without that person's consent or which will endanger life or property or create a public hazard.(4) Rights of third parties to be protected. The rights of third parties affected by a proposed levee or other improvement must be considered. Before approval, the commission shall accordingly give full consideration to the rights of all such parties not otherwise considered under paragraphs (1)-(3) of this subsection.(5) The commission and the executive director shall assure that, as far as possible, levees or other improvements shall be designed with primary consideration to the topographic and hydrographic conditions, and in such a manner that each division of a project shall be a complete, united project forming a coordinate part of an ultimately finished series of projects, so constituted that the successful operation of each united project shall coordinate with the successful operation of other projects within the same hydraulic influence.(6) In addition, a minimum freeboard of three feet above the 100-year design flood hydraulic gradient should be provided where levees furnish protection for urbanized or developing areas. A minimum freeboard of two feet above the 100-year design flood hydraulic gradient, or more frequent flood as may be determined under §301.33 of this title (relating to Preliminary Plans: Data To Be Submitted), should be provided where levees furnish protection for agricultural areas. Reaches of the levee which may be affected by wave buildup from structural features of the project shall require supplemental study to determine if greater freeboard should be provided.</content><note type="source"><p>Source Note: The provisions of this §301.34 adopted to be effective May 26, 1986, 11 TexReg 2246.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.35"><num value="301.35">§301.35</num><heading>Additional Information</heading><content>The executive director may request any additional pertinent information from the applicant which he deems necessary to evaluate the effects of a proposed project before submitting the application to the commission for setting of a hearing.</content><note type="source"><p>Source Note: The provisions of this §301.35 adopted to be effective May 26, 1986, 11 TexReg 2246.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.36"><num value="301.36">§301.36</num><heading>Plans To Bear Seal of Engineer</heading><content>All preliminary plans and other plans which are submitted with an application for approval of a levee or other improvement shall be prepared by or under the direction of a registered professional engineer and signed by the registered professional engineer whose seal shall appear upon or be affixed thereto.</content><note type="source"><p>Source Note: The provisions of this §301.36 adopted to be effective May 26, 1986, 11 TexReg 2246.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.37"><num value="301.37">§301.37</num><heading>Referral of Application to Commission</heading><content>(a) The processing of the application shall be in accordance with Chapter 281 of this title (relating to Applications Processing). When the executive director has determined that the application is administratively complete under Chapter 281 of this title (relating to Applications Processing) and that the applicant has paid the required fees, he shall refer the application to the chief clerk of the commission for issuance of mail notice of application and commission action in accordance with §301.52 of this title (relating to Notice of the Application By Mail). For the sole purpose of issuing adequate notice, the executive director will include a recommendation to the commission of the area wherein the proposed project(s) which comprise the application would have potential impact based upon the information provided by the applicant, pursuant to §301.33 of this title (relating to Preliminary Plans: Data To Be Submitted), and the executive director's review of that information. The executive director shall also notify the applicant that he has determined that the project is within the commission's jurisdiction.(b) If the executive director determines that the project is not one which is within the jurisdiction of the commission pursuant to the Texas Water Code, §16.236, he shall so notify the applicant, who shall withdraw the application. If the application is not withdrawn by the applicant within 90 days of the date of mailing of notification of nonjurisdiction, the executive director may forward the application to the commission and recommend that the commission enter an order dismissing the application. The chief clerk shall notify the applicant of the date set for consideration of the recommendation for dismissal.</content><note type="source"><p>Source Note: The provisions of this §301.37 adopted to be effective May 26, 1986, 11 TexReg 2246.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.38"><num value="301.38">§301.38</num><heading>Procedures Subsequent to Approval of Preliminary Plans</heading><content>(a) Final approval of engineering plans and specifications for levees and other improvements for which commission approval is required; submission of final plans for exempt levees and other improvements.(1) Following approval by the commission of a proposed levee or other improvement under Texas Water Code (TWC), §16.236, the applicant shall submit final engineering plans and specifications to the executive director for approval prior to beginning construction.(2) For levees and other improvements which are exempt under TWC, §16.236, final engineering plans and specifications shall be submitted to the executive director prior to beginning construction for review to ensure compliance with preliminary plans submitted thereunder and to carry out the executive director's inspection duties under TWC, §57.117, but approval of these final plans by the executive director is not required.(3) In addition to the submission of final plans, the applicant shall also provide the executive director with proof of ownership or right to construct on the project site prior to beginning construction. Upon review and approval of the final plans of the applicant, the executive director shall notify the applicant in writing that construction may proceed.(b) Criteria for review and/or approval of final plans. Final plans of the proposed works must adequately illustrate pertinent features of the project such as planned elevations, profiles, dimensional typical cross-sections, and other features such as outlet works, drains, overflow relief structures, landfills, and roads so that an understandable project concept can be discerned. The requirements are to be considered guidelines and may be varied according to the requirements of any particular project at the discretion of the executive director. Final plans for such features as excavated channels or constructed embankments will be reviewed as to their structural integrity in accordance with the degree of hazard inherent with the project.(1) Normal requirements for final channel excavation plans are as follows.(A) Information is to be provided to indicate the type and/or classification of the soil to be excavated in the channel according to the unified soil classification system. Depth of exploratory borings shall be at least five feet below planned channel bottom grade.(B) Plans shall provide elevations and dimensions for the channel and all structures and appurtenances integral to the project such as protective linings, wingwalls, outlet works, drop inlets, aprons and riprap.(C) Unlined channels must be constructed to a nonerosive grade. All channels should be accessible for maintenance or repair.(D) All concrete placement shall be reviewed for intended use.(E) Use or disposal of excavated material shall be clearly shown on final plans.(F) All specifications to be followed by the contractor shall be included with plans submitted.(G) The applicant must have an acceptable operation and maintenance program and budget.(2) Normal requirements for final levee or dike construction plans are as follows.(A) For purposes of review, final plans of dikes and levees will be classified into one or a combination of the following:(i) the dike that holds back water at all times:(I) with landfill;(II) without landfill:(-a-) high-risk protection (dwelling or high value land);(-b-) low-risk protection (agricultural);(ii) the levee that holds back water only during floods:(I) with landfill;(II) without landfill:(-a-) high-risk protection (dwelling or high value land);(-b-) low-risk protection (agricultural).(B) Normal requirements are as follows.(i) Foundation and borrow source information obtained from exploration will indicate the type and/or classification of the soil according to the unified soil classification system. The borings should be at least to a depth equal to the height of the embankment. In some cases, additional depth of borings may be required. The natural groundwater table elevation shall be given if water is encountered in the borings. The soils to be used shall be relatively impervious and consist of clay and clayey material. At least 15% of the material must pass the #200 sieve and the plasticity index of the material must be above 15. Fill material shall have no stones over six inches in diameter and no organic material (roots, etc.).(ii) Elevations and dimensions of all proposed structures (levees, dikes, conduits, etc.) including those to be used for drainage shall be noted.(iii) Lengths and distances between the various components of the system, i.e., lengths of conduits and pipes; distances between dike or levee and natural stream, and borrow area or ditches, shall be noted.(iv) Compactive effort proposed to be used in project specifications shall be noted. The compactive effort required may vary with the type of dike or levee. The compaction of the material may be obtained by any means that is suitable. The soil shall be compacted to a minimum density of 95% using the standard proctor compaction test at approximately 3.0% optimum moisture content. Fill shall be placed in lifts of not more than 12 inches thick and properly processed, if needed, prior to compaction. Methods to be employed to obtain compaction shall be contained in specifications for the project.(v) Sides of levees that are to remain exposed shall be adequately protected. Plans shall provide for establishing a protective grass cover or for an alternate treatment where climate will not support a vegetative cover.(vi) All pipes and conduits passing through the dike shall have anti-seep collars to increase the percolation path by a minimum of 15%. The immediate area below drainage outfalls shall be protected by riprap or concrete.(vii) All concrete placements shall be reviewed for intended use.(viii) The foundation area shall be stripped. Stripping shall include removal of all grass, trees, and surface root systems for the full width of the levee.(ix) Provision shall be made for an embankment key. Methods employed to control subsurface seepage shall be reviewed in accordance with soil conditions present and with the degree of hazard inherent in the project.(x) Materials removed by stripping or from the key way shall be used only on the dry side of the finished levee.(xi) All specifications to be followed by the contractor shall be included with the plans submitted.(xii) The applicant shall formulate and carry out an acceptable operation and maintenance program and budget.</content><note type="source"><p>Source Note: The provisions of this §301.38 adopted to be effective May 26, 1986, 11 TexReg 2246; amended to be effective May 5, 2005, 30 TexReg 2553.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.39"><num value="301.39">§301.39</num><heading>Time Limits for Construction</heading><content>(a) The time during which construction must begin and must be completed. The applicant must commence and complete construction of the project approved by the commission within a reasonable time which shall be established by the commission as a condition stated in the commission's approval order. The commission will evaluate the scope of the project in determining the commencement and completion requirements.(b) Failure to begin or to complete construction. Failure to begin construction or to complete construction within the period specified in the approval order shall be considered violations of the order and shall be grounds for withdrawal of approval.(c) Resubmission of plans. If construction is not begun within the period specified in the approval order or is not completed within the period specified in the order, the applicant must resubmit his plans to the executive director for review and consideration whether the lapse of time has resulted in changed circumstances which require significant additional requirements or modifications to the order, giving due consideration to the rights of third parties. Such a resubmission is considered an application for extension of time for which fees are payable pursuant to §§301.71-301.74 of this title (relating to Fees). Specifically, the executive director shall consider whether physical changes have occurred or are imminent or planned in the area of potential impact which may have an adverse effect on landowners which is different from that present in the initial approval process and/or which may require significant alterations of the approved plans or significant additional requirements or modifications to the order.(d) Referral when changed circumstances exist. If the executive director determines that such changed circumstances exist, he shall refer the application to the commission for action in accordance with §301.37 of this title (relating to Referral of Application to Commission).(e) Recommendation for extension of time. If the executive director determines that such changed circumstances do not exist, he may recommend to the commission an extension of time to begin or to complete construction. Notice shall not again be required in this case. The commission may, for good cause, extend the period to commence or to complete construction.</content><note type="source"><p>Source Note: The provisions of this §301.39 adopted to be effective May 26, 1986, 11 TexReg 2246.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.40"><num value="301.40">§301.40</num><heading>Notification of Date Work Began; Monthly Reports</heading><content>Within 10 days after beginning actual construction of a project, the executive director shall be notified in writing of the date work began. Thereafter, monthly reports of progress shall be forwarded to the executive director by the 10th day of each month during construction. The report shall show the work accomplished during the month, the percentage of time used, and the percentage of completion of the project as of the close-out date of the report. In addition, the report shall show the inclusive dates of the reporting period.</content><note type="source"><p>Source Note: The provisions of this §301.40 adopted to be effective May 26, 1986, 11 TexReg 2246.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.41"><num value="301.41">§301.41</num><heading>Maintenance of Records</heading><content>The owner shall continuously maintain records to ensure compliance with the approved plans and specifications during construction. Copies of these records shall be furnished to the executive director at monthly intervals during the construction period, and must include, but not necessarily be limited to, such items as soil moisture-density test results, and concrete trial batch designs test and compression test results.</content><note type="source"><p>Source Note: The provisions of this §301.41 adopted to be effective May 26, 1986, 11 TexReg 2246.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.42"><num value="301.42">§301.42</num><heading>Inspection</heading><content>Inspection of construction work shall be conducted by a registered professional engineer experienced in the construction of levees and channel modifications and responsible directly to the owner. Continuous daily inspections shall be made and may be delegated to a qualified technician (inspector) provided he or she is under the supervision of the owner's engineer. The executive director may make periodic inspections for the purpose of ascertaining compliance with approved plans and specifications. Such inspections shall be at the expense of the commission. The executive director shall require the owner, at his or her expense, to perform necessary work or tests and to disclose information sufficient to enable the executive director to determine that conformity with approved plans and specifications is accomplished.</content><note type="source"><p>Source Note: The provisions of this §301.42 adopted to be effective May 26, 1986, 11 TexReg 2246.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.43"><num value="301.43">§301.43</num><heading>Certification by Executive Director</heading><content>After approval for the construction of a project has been obtained by a levee improvement district from the commission, the executive director shall inspect the construction of the project at least once every 60 days after the construction work has commenced, and if the executive director finds that the work has been done in compliance with the construction contract, the executive director shall certify this fact. The certificate shall give a full description of the work done up to the date of inspection. If the executive director finds that the work has not been done in compliance with the construction contract, the executive director shall officially certify this fact to the district and to the commission. The certificate shall specify how the contractor has failed to comply with the construction contract.</content><note type="source"><p>Source Note: The provisions of this §301.43 adopted to be effective May 26, 1986, 11 TexReg 2246; amended to be effective May 5, 2005, 30 TexReg 2553.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.44"><num value="301.44">§301.44</num><heading>Alterations of Final Plans and Specifications</heading><content>If after inspection, investigation, or examination, or at any time as the work progresses, the executive director finds that changes or amendments are necessary to ensure safety, he may request the owner to revise his or her plans and/or specifications. Alterations of the plans and specifications must be approved by the executive director before work commences under the changes, except in emergencies requiring immediate action, in which instance the executive director shall be immediately notified. If the proposed alterations would result in deviation from the approved plans, amendment of the approved plans must be obtained from the commission. An application must be submitted for approval of the amendment. If, in the opinion of the executive director, the amendment would have a potential adverse affect on property owners' rights which is materially different from that in the initial approval process, he shall inform the applicant, and notice must again issue in compliance with §§ 301.51-301.57 of this title (relating to Notice and Hearing).</content><note type="source"><p>Source Note: The provisions of this §301.44 adopted to be effective May 26, 1986, 11 TexReg 2246.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.45"><num value="301.45">§301.45</num><heading>Failure To Comply with Approved Plans and Specifications</heading><content>If at any time during construction, enlargement, repair, or alteration of any levee or channel modification, the executive director finds that the work is not being done in accordance with approved plans and specifications, the executive director shall give written notice and direct compliance by certified mail to the owner. If the owner fails to comply with the directive, the executive director may take appropriate action to assure compliance. Failure to comply with approved plans and specifications is ground for revocation of the order approving the plan and/or civil penalty as provided by law. The commission may order that the structure be removed to eliminate any safety hazard to life and property.</content><note type="source"><p>Source Note: The provisions of this §301.45 adopted to be effective May 26, 1986, 11 TexReg 2246; amended to be effective May 5, 2005, 30 TexReg 2553.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scC/s301.46"><num value="301.46">§301.46</num><heading>As-Built Plans</heading><content>Upon submission of as-built construction plans, the applicant shall be provided a notice of final approval in writing if, in the executive director's opinion, no significant variance from the approved plans occurs during the course of construction. Thereafter, any enlargement or other modification of the project, including any subsequent rehabilitation or reconstruction of the project in a manner differing in any way from the approved project plans must be submitted to the commission for approval as a new levee or other improvement pursuant to this chapter.</content><note type="source"><p>Source Note: The provisions of this §301.46 adopted to be effective May 26, 1986, 11 TexReg 2246.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c301/scD"><num value="D">SUBCHAPTER D</num><heading>NOTICE AND HEARING</heading><section identifier="/us/state/tx/tac/t30/p1/c301/scD/s301.51"><num value="301.51">§301.51</num><heading>Notice Required</heading><content>The notice procedures set forth in this subchapter are required for applications for approval of levees and other improvements for which commission approval is required under Texas Water Code, §16.236.</content><note type="source"><p>Source Note: The provisions of this §301.51 adopted to be effective July 31, 1986, 11 TexReg 3301; amended to be effective May 5, 2005, 30 TexReg 2553.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scD/s301.52"><num value="301.52">§301.52</num><heading>Contents of Notice of Application and Commission Action</heading><content>The notice of application shall fairly set forth the substance of the application and proposed action. The notice shall include the following:(1) the exact location of the proposed levees and other improvements as nearly as the same can be described;(2) the date on which the application was filed with the executive director;(3) a statement that the executive director has determined that the application is administratively complete;(4) the applicant's anticipated construction and completion schedule;(5) the applicant's name and mailing address;(6) a description of the project which reasonably describes the specific nature and scope of the project, including type of approval applicant is seeking from the commission;(7) an explanation of the method for submitting a response to the application and/or a written request for a public hearing; and(8) any additional information the commission deems necessary.</content><note type="source"><p>Source Note: The provisions of this §301.52 adopted to be effective June 2, 1986, 11 TexReg 2345.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scD/s301.53"><num value="301.53">§301.53</num><heading>Notice of the Application by Mail</heading><content>(a) The chief clerk of the commission shall send notice by first class mail to persons listed in subsection (b) of this section and to persons who in the judgment of the commission may be affected. The chief clerk shall mail required notice not less than 30 days before the date set for commission consideration of the application.(b) The notice shall be mailed to the following:(1) current landowners named in the application and/or map which accompanies the application as described in §301.33 of this title (relating to Preliminary Plans: Data To Be Submitted);(2) the county judge(s) and health authorities of the county or counties affected;(3) the following entities:(A) the Texas Department of Health;(B) the Texas Parks and Wildlife Department;(C) the Texas Railroad Commission;(D) the Texas State Soil and Water Conservation Board;(E) the Texas General Land Office;(F) the Texas Historical Commission;(G) local river authorities;(H) the Federal Emergency Management Agency; and(I) the U.S. Corps of Engineers;(4) the applicant;(5) persons who request to be put on the mailing list and participants in past commission proceedings for levee(s) or other improvements; and(6) any other person the commission may include, or the executive director may identify after review of the data submitted as required by §301.33 of this title (relating to Preliminary Plans: Data To Be Submitted).(c) Failure to mail notice to the entities listed in subsection (b)(3) of this section shall not render notice invalid pursuant to this section.</content><note type="source"><p>Source Note: The provisions of this §301.53 adopted to be effective June 2, 1986, 11 TexReg 2345.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scD/s301.54"><num value="301.54">§301.54</num><heading>Notice of the Application by Publication</heading><content>(a) Upon being notified by the chief clerk of the commission to publish a notice of application and commission action, the applicant shall cause the notice to be published in a newspaper of general circulation in each county wherein the project would have potential impact as set forth in §301.33 of this title (relating to Preliminary Plans: Data To Be Submitted) and §301.53 of this title (relating to Notice of the Application By Mail). Publication in one newspaper is sufficient if the newspaper is of general circulation in each county or counties throughout the area of potential impact.(b) The date of publication of notice of the application and commission action shall be on or before the date of publication directed by the chief clerk of the commission. In any event, the date of publication shall be not less than 30 days before the date set for commission consideration of the application. The applicant shall pay the costs of publication.</content><note type="source"><p>Source Note: The provisions of this §301.54 adopted to be effective June 2, 1986, 11 TexReg 2435.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scD/s301.55"><num value="301.55">§301.55</num><heading>Action on the Application</heading><content>(a) Action without public hearing. The commission may take action on an application at a regular meeting without holding a public hearing provided:(1) at least 30 days prior to the regular meeting at which action is taken, notice of the application and commission action has been given by mail and by publication; and(2) within the 30-day period after the publication of the notice, no request for a public hearing has been submitted by a commissioner, the executive director, or an affected person who objects to the application.(b) Request for public hearing.(1) A request for public hearing under this chapter made by an affected person who objects to the application must be in writing and must be submitted to the commission within 30 days after the publication of the notice of application. The commission may extend the time allowed for submitting a request for public hearing.(2) The written request shall contain the following information:(A) the name, mailing address, and phone number of the person making the request;(B) the application number or other recognizable reference to the application;(C) a brief description of the interest of the requester, or of persons represented by the requester; and(D) a brief description of how the application, if granted, would adversely affect such interest.(3) If the commission determines that the request for public hearing is in substantial compliance with this section, or that a public hearing would serve the public interest, the commission shall conduct a public hearing.</content><note type="source"><p>Source Note: The provisions of this §301.55 adopted to be effective June 2, 1986, 11 TexReg 2435.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scD/s301.56"><num value="301.56">§301.56</num><heading>Publication of Notice of Public Hearing</heading><content>(a) If a public hearing shall be held pursuant to §301.55 of this title (relating to Action On the Application), the applicant shall cause the notice to be published in a newspaper of general circulation in each county wherein the project would have potential impact. Publication in one newspaper is sufficient if the newspaper is of general circulation in each county or counties throughout the area of potential impact.(b) A notice of hearing shall identify the application, the date, time, place, and nature of the hearing, the legal authority and jurisdiction under which the hearing is to be held, the proposed action, the requirements for submitting written protests, the method for obtaining additional information, and such other information the commission deems necessary.(c) The date of publication of notice of public hearing shall be on or before the date of publication directed by the commission. In any event, the date of publication of notice of public hearing shall be not less than 30 days before the date set for the public hearing. The applicant shall pay the costs of publication.</content><note type="source"><p>Source Note: The provisions of this §301.56 adopted to be effective June 2, 1986, 11 TexReg 2435.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scD/s301.57"><num value="301.57">§301.57</num><heading>Notice of Remanded Hearing</heading><content>A hearing on an application which has been remanded by the commission to the office of hearings examiners may be held without the necessity of issuing further notice other than advising the applicant, executive director, public interest advocate, other parties, and all persons who have in writing notified the commission of their interest in the application of the time and place where the hearing is to convene. The chief clerk of the commission shall mail such notice to these persons not less than 10 days before the date of the hearing.</content><note type="source"><p>Source Note: The provisions of this §301.57 adopted to be effective June 2, 1986, 11 TexReg 2435.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c301/scE"><num value="E">SUBCHAPTER E</num><heading>UNAUTHORIZED LEVEES AND OTHER IMPROVEMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c301/scE/s301.61"><num value="301.61">§301.61</num><heading>Construction Without Authorization</heading><content>If any person, corporation, political subdivision, or other entity has constructed or begun work upon a levee or other improvement for which commission approval is required by the Texas Water Code and this chapter, and if commission approval has not been obtained for such project, the executive director shall immediately notify the person, corporation, political subdivision, or other entity that it is in violation of the Texas Water Code and this chapter, and that unless the project is brought into compliance with the criteria and requirements of the Texas Water Code and this chapter within a period of time determined appropriate by the executive director and stated in such notice, the executive director may request the attorney general or the appropriate court for appropriate remedies under the Texas Water Code. At the expiration of the time period stated in such notice, the executive director may request its legal representative to institute such action in the courts.</content><note type="source"><p>Source Note: The provisions of this §301.61 adopted to be effective May 26, 1986, 11 TexReg 2249.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scE/s301.62"><num value="301.62">§301.62</num><heading>Removal or Modification of Levees and Other Improvements</heading><content>Removal or modification of a levee and/or other improvement shall be done at the owner's expense, and except for emergency action required to protect lives and property, only after executive director approval. The executive director may require the owner to provide plans and specifications. The executive director may seek an order from the commission or an injunction through the attorney general and the courts requiring the removal or modification of levees or other improvements which are not authorized by law or which have been determined to pose an unacceptable hazard to lives or property.</content><note type="source"><p>Source Note: The provisions of this §301.62 adopted to be effective May 26, 1986, 11 TexReg 2249.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scE/s301.63"><num value="301.63">§301.63</num><heading>Emergency Action</heading><content>Emergency orders may be issued, without notice to the owner, directing the owner of a levee or other improvement to take immediate and appropriate action to remedy situations posing serious threat to human life, health, and/or property.</content><note type="source"><p>Source Note: The provisions of this §301.63 adopted to be effective May 26, 1986, 11 TexReg 2249.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c301/scF"><num value="F">SUBCHAPTER F</num><heading>FEES</heading><section identifier="/us/state/tx/tac/t30/p1/c301/scF/s301.71"><num value="301.71">§301.71</num><heading>Executive Director To Charge and Collect Fees</heading><content>In accordance with Texas Water Code, §5.701, the executive director shall charge and collect for the benefit of the state the fees provided in §301.73 of this title (relating to Fees To Be Paid).</content><note type="source"><p>Source Note: The provisions of this §301.71 adopted to be effective May 26, 1986, 11 TexReg 2249; amended to be effective May 5, 2005, 30 TexReg 2553.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scF/s301.72"><num value="301.72">§301.72</num><heading>Fees Required</heading><content>Statutory fees must accompany an application in order for it to be considered. Employees of the commission are expressly prohibited from processing any application unless the proper fees are tendered.</content><note type="source"><p>Source Note: The provisions of this §301.72 adopted to be effective May 26, 1986, 11 TexReg 2249.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scF/s301.73"><num value="301.73">§301.73</num><heading>Fees To Be Paid</heading><content>The following fees shall be submitted with any application required to be filed under this chapter:(1) filing fee--the filing fee shall be $100;(2) recording fee--the recording fee shall be $1.25 per page;(3) fees for mail notice--the cost of mailing notice of the application to persons in the affected or protected area shall be paid by the applicant. The executive director shall advise the applicant of the number of persons and the mailing cost;(4) fees for publication of notice of application--the cost of publication of the notice of application in a newspaper of paid circulation that is regularly published and generally circulated in the county or counties within the proposed affected or protected area, shall be paid by the applicant; and(5) fees for publication of notice of hearing--fees for publication of notice of hearing in a newspaper that is regularly published and generally circulated in the county or counties within the affected or protected area, shall be paid by the applicant.</content><note type="source"><p>Source Note: The provisions of this §301.73 adopted to be effective May 26, 1986, 11 TexReg 2249; amended to be effective May 5, 2005, 30 TexReg 2553.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c301/scF/s301.74"><num value="301.74">§301.74</num><heading>Examples of Applications Subject to Filing, Recording, and Notice Fees</heading><content>The following are examples of applications subject to filing, recording, and notice fees:(1) application for approval of engineering plans and specifications (preliminary and final plans);(2) application to amend a plan approval order;(3) application to alter, enlarge, extend, or otherwise change any levee or other improvement; and(4) application for extension of time.</content><note type="source"><p>Source Note: The provisions of this §301.74 adopted to be effective May 26, 1986, 11 TexReg 2249; amended to be effective May 5, 2005, 30 TexReg 2553.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c301/scG"><num value="G">SUBCHAPTER G</num><heading>DISTRICTS TO FILE INFORMATION WITH EXECUTIVE DIRECTOR</heading><section identifier="/us/state/tx/tac/t30/p1/c301/scG/s301.81"><num value="301.81">§301.81</num><heading>Districts To File Information with Executive Director</heading><content>Immediately before having bonds approved by the attorney general, each drainage district and levee improvement district shall file with the executive director a complete record showing each step in the organization of the district, the amount of bonds to be issued, and a description of the area and boundaries of the district, accompanied by plans, maps, profiles of improvements and the estimates and reports relating thereto prepared by the district's engineer.</content><note type="source"><p>Source Note: The provisions of this §301.81 adopted to be effective May 26, 1986, 11 TexReg 2249.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c303"><num value="303">CHAPTER 303</num><heading>OPERATION OF THE RIO GRANDE</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c303/scA"><num value="A">SUBCHAPTER A</num><heading>INTRODUCTORY PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c303/scA/s303.1"><num value="303.1">§303.1</num><heading>General</heading><content>This chapter is applicable to water rights in the Rio Grande Basin below Fort Quitman, and water rights in that portion of the Nueces-Rio Grande Coastal Basin in Starr, Hidalgo, Willacy, and Cameron Counties whose source of water is the Rio Grande, excluding the Pecos and Devils watersheds. All other rules, regulations, or orders promulgated or issued by the commission relating to water rights are also applicable to these water rights unless expressly stated otherwise or in conflict with the provisions of this chapter, in which event this chapter shall govern.</content><note type="source"><p>Source Note: The provisions of this §303.1 adopted to be effective July 2, 1986, 11 TexReg 2885; amended to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scA/s303.2"><num value="303.2">§303.2</num><heading>Definitions</heading><content>The following words and terms when used in this chapter shall have the following meanings.(1) Account--The record of municipal and operating reserves; or the record of an allottee's water in storage in the Amistad-Falcon system, and the diversion of such water.(2) Accounting period--From the last Saturday of a month at midnight to the last Saturday of the following month at midnight.(3) Agent--A person designated by a water right holder to have the authority to request certification to divert, make diversions, and/or pay assessment charges.(4) Allocation--The distribution of the United States' share of water stored in the Amistad-Falcon system to the various accounts.(5) Allottee--A water right holder who has an account and who has the right to call on releases of water from the associated accounts.(6) Assessment--The authorized charges against water rights holders levied by the commission to finance watermaster operations.(7) Certification--Written authorization issued by the watermaster to divert water from the Rio Grande or its tributaries for a specific period of time.(8) Diversion facility--Any pump, canal system, or other device. (9) Diverter--A water right holder, an agent, or an exempt domestic and livestock user who takes water from the Rio Grande or its tributaries. (10) Hydroelectric rights--A water right that authorizes the use of available flow for hydroelectric power generation. No account will be established for the holders of hydroelectric rights.(11) Lower Rio Grande Valley--That portion of the Rio Grande Basin, including tributaries, in Texas from Falcon Dam downstream to the Gulf of Mexico, including that portion of the Nueces-Rio Grande Coastal Basin located in Starr, Hidalgo, Willacy, and Cameron Counties, Texas, whose source of water is the Rio Grande.(A) Reach I is that portion of the Lower Rio Grande between Falcon Dam and the International Boundary and Water Commission streamflow gage at Fort Ringgold.(B) Reach II is that portion of the Lower Rio Grande between the International Boundary and Water Commission streamflow gage at Fort Ringgold and Anzalduas Dam.(C) Reach III is that portion of the Lower Rio Grande between Anzalduas Dam and the Progreso Bridge.(D) Reach IV is that portion of the Lower Rio Grande between the Progreso Bridge and the International Boundary and Water Commission streamflow gage near San Benito.(E) Reach V is that portion of the Lower Rio Grande between the International Boundary and Water Commission streamflow gage near San Benito and the Cameron County Water Control and Improvement District 6 river pumps. (F) Reach VI is that portion of the Lower Rio Grande between Cameron County Water Control and Improvement District 6 river pumps and the International Boundary and Water Commission streamflow gage near Brownsville. (G) Reach VII is that portion of the Lower Rio Grande between the International Boundary and Water Commission streamflow gage near Brownsville and the Gulf of Mexico.(12) Measuring device--A device designed to indicate flow rate and amount, with instantaneous readout in cubic feet per second (cfs) or gallons per minute (gpm) and a flow totalizer with a readout in acre-feet or gallons, to be accurate within 5.0%, said device to be approved by the watermaster. Any device operated and maintained by the International Boundary and Water Commission is considered satisfactory. On tributaries, any device approved by the watermaster is sufficient.(13) Middle Rio Grande--That portion of the Rio Grande Basin including tributaries, in Texas upstream from Falcon Dam to Amistad Dam.(A) Reach I is that portion of the Middle Rio Grande between Amistad Dam and the International Bridge at Del Rio.(B) Reach II is that portion of the Middle Rio Grande between the International Bridge at Del Rio and the International Bridge at Eagle Pass.(C) Reach III is that portion of the Middle Rio Grande between the International Bridge at Eagle Pass and the International Boundary and Water Commission streamflow gaging station at San Antonio Crossing.(D) Reach IV is that portion of the Middle Rio Grande between the International Boundary and Water Commission streamflow gaging station at San Antonio Crossing and the International Bridge at Laredo.(E) Reach V is that portion of the Middle Rio Grande between the International Bridge at Laredo and San Ygnacio.(F) Reach VI is that portion of the Middle Rio Grande between San Ygnacio and Falcon Dam.(14) No charge water--Storm and flood water in the Rio Grande downstream from Amistad Dam that is designated by the watermaster, in accordance with Texas Water Code, §11.0871, and with Texas Water Commission order dated August 4, 1981, and any subsequent orders, as being available for diversion and use by water rights holders.(15) Nondiverter--An agent or a water right holder who has water delivered to him by a diverter.(16) Proration period--The period determined on a monthly basis, when the United States' share of water in the Amistad-Falcon system is less than 50% of the total United States conservation storage.(17) Pump operation report--That part of the certification which the diverter returns to the watermaster after recording the amount of water actually diverted during the certification period.(18) Travel time--The time for released water to travel downstream to designated reaches on the Middle or Lower Rio Grande.(19) Treaty--The 1944 water sharing treaty between the United States and Mexico, and all related amendments and minute orders adopted by the International Boundary and Water Commission.(20) Tributary diverter--A water right holder, an agent, or an exempt domestic and livestock user on the Rio Grande below Fort Quitman and above Amistad Reservoir or on a tributary of the Rio Grande with no right to call for releases from Amistad or Falcon Reservoirs.(21) Upper Rio Grande--That portion of the Rio Grande Basin, including tributaries, in Texas from Amistad dam upstream to Fort Quitman, excluding the Pecos and Devils watersheds.(22) Usable balance--The quantity of water in acre-feet an allottee has available for use, and is based upon whichever is less:(A) the sum of allottee's annual authorized amount of water minus actual use for the year to date, plus the allottee's contract water balance; or(B) the amount in the allottee's storage account.(23) Water-in-transit--Privately owned water, not including state water, that a person has pumped from an underground reservoir and that is in transit between the point of discharge into the Rio Grande and the place or the point of diversion by a person who has contracted with the owner of the water to purchase the water, and that may be stored in a reservoir for later use.(24) Water right--A right acquired under the laws of the state to impound, divert, and/or use water.(A) Class A water right--A water right in the Lower or Middle Rio Grande Basin designated as a Class A right and held under a certificate of adjudication, granted in the Adjudication of the Lower and Middle Rio Grande River in State v. Hidalgo County Water Control & Improv. Dist. No. 18, 443 S.W.2d 728 (Tex. App. - Corpus Christi 1969), writ ref'd n.r.e., or issued by the commission. If converted to a domestic, municipal, and industrial (DMI) water right, a Class A water right is converted to 50% of the existing water right.(B) Class B water right--A water right in the Lower or Middle Rio Grande Basin designated as a Class B right and held under a certificate of adjudication, granted in the Adjudication of the Lower and Middle Rio Grande River in State v. Hidalgo County Water Control & Improv. Dist. No. 18, 443 S.W.2d 728 (Tex. App. - Corpus Christi 1969), writ ref'd n.r.e., or issued by the commission. If converted to a DMI water right, a Class B water right is converted to 40% of the existing water right.(25) Water right holder--One who owns a water right.</content><note type="source"><p>Source Note: The provisions of this §303.2 adopted to be effective July 2, 1986, 11 TexReg 2885; amended to be effective April 26, 2001, 26 TexReg 3013; amended to be effective October 26, 2006, 31 TexReg 8716.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c303/scB"><num value="B">SUBCHAPTER B</num><heading>WATERMASTER--REGULATORY FUNCTIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c303/scB/s303.11"><num value="303.11">§303.11</num><heading>Records of Diversions--General</heading><content>(a) The watermaster shall locate, number by river mile or other method, and rate as to capacity all authorized diversion facilities on the Texas bank along the Rio Grande and tributaries, and the owner or operator thereof shall be advised in writing of these facts. When a permanent diversion facility is replaced at the same location or when any changes in rating are made, the diverter shall immediately inform the watermaster prior to diversion. Any change in the location of the diversion facilities and place of use on the Middle or Lower Rio Grande shall be made pursuant to §295.71 of this title (relating to Applications to Amend a Permit) and §295.158(c) of this title (relating to Notice of Amendments to Water Rights), not requiring mailed and published notice. Any change in the location of the diversion facilities and place of use on the Upper Rio Grande and tributaries to the Rio Grande shall be made pursuant to §295.71 of this title (relating to Applications to Amend a Permit) and §295.158(c) of this title (relating to Notice of Amendments to Water Rights) , not requiring mailed and published notice; or §295.158(b) of this title (relating to Notice of Amendments to Water Rights), requiring mailed and published notice.(b) Each diverter shall request written certification from the watermaster prior to diverting water by identifying the specific certificate of adjudication to be used and the pump number of the pump to be used. When a diverter orders water for a nondiverter, the diverter may request written certification under such diverter's certificate of adjudication or under the certificate of adjudication of the nondiverter to which the diverter is delivering water, but shall report the amount of water diverted for the nondiverter as provided in §303.12(d) of this title (relating to Records - Mainstem Middle and Lower Rio Grande). Certifications will be granted only for diversion from authorized diversion points associated with that water right. Certifications for irrigation water rights will be granted only for delivery of water to the authorized tract(s) covered by the water right or approved contractual sale. Certifications are limited to a maximum diversion period of one calendar month on the mainstream of the Lower and Middle Rio Grande and to one year on the Upper Rio Grande and all tributaries of the Rio Grande.(c) No certification will be issued which exceeds the maximum annual authorization, in combination with any other certifications issued for that certificate of adjudication in any one year. The watermaster is authorized to cancel a certification or to refuse or modify a request for the diversion of water. Except as provided in §303.44 (relating to the Administration by Watermaster), the watermaster will refuse a request of a diverter if the water rights holder whose water is to be diverted does not have complete ownership records on file with the commission. The watermaster will maintain a list of all water rights holders with incomplete ownership records and will remove names from that list after the executive director notifies the watermaster that the ownership record has been completed.(d) Each diverter shall post at or near his diversion facility the watermaster certification authorizing the diversion of water. In the event the certification has been granted but is not received by the diverter by the time diversion is authorized, the diverter shall post a written note at or near the diversion facility in lieu of the watermaster certification, stating the pump number and the dates and hours of the request and that verbal authority was given by the watermaster. It is the responsibility of the diverter to make certain that the written note conforms to the time and conditions shown on the watermaster certification. The watermaster certification, upon receipt, shall replace the written note.(e) Each diverter shall install and maintain measuring devices at the authorized point of diversion which will provide for accurate measurement and accounting of the quantities of water diverted. The installation, maintenance, and operation of measuring devices by the diverter shall be subject to approval of the watermaster. The diverter must ensure the accessibility of the measuring device, so it can be conveniently and safely located and checked by the watermaster. The diverter shall be liable for all expenses incurred in the acquisition, installation, maintenance, and operation of measuring devices.(f) Each diverter whose diversions are not measured and reported by the International Boundary and Water Commission shall maintain accurate records of water diverted. All pumps used during the reporting period, including borrowed and rented pumps, shall be shown by number on the pump operation report with metered readings or with the number of hours operated for each reporting period. The watermaster will accept as timely all pump operation reports for each diversion pump received within seven days or postmarked within five days from the termination of the certification period. If the pump operation report is incomplete or not timely filed, the watermaster will refuse to issue a new certification until the complete report is filed. Pump operation reports,other than International Boundary and Water Commission diversion reports, received in the watermaster's office are unacceptable:(1) if unsigned; or(2) if the measuring device reading is not shown.(g) Each diverter shall divert water in accordance with the watermaster certification.(h) Each water right holder or his designated agent shall submit to the commission a written report of the amount of water actually diverted and used during the preceding calendar year under a specific water right in accordance with §295.202 of this title (relating to Reports) and/or §303.54(d) of this title (relating to Responsibilities of Buyer and Seller). The water right holder is responsible for reporting actual use based on the records kept by the water right holder or diverter. The watermaster will not fill out annual surface water use reports.</content><note type="source"><p>Source Note: The provisions of this §303.11 adopted to be effective July 2, 1986, 11 TexReg 2889.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scB/s303.12"><num value="303.12">§303.12</num><heading>Records--Mainstem Middle and Lower Rio Grande</heading><content>(a) The watermaster shall maintain an accurate inventory of water in Falcon and Amistad Reservoirs and shall maintain records and institute necessary procedures with the International Boundary and Water Commission as may be appropriate to perform this function.(b) The watermaster shall timely submit a monthly report to each allottee, or his designated agent, showing the current status of each allottee's account. The period of time covered by each report shall be from the last Saturday of a month at midnight to the last Saturday of the following month at midnight. The report shall designate the date for the end of the watermaster's next reporting period. Each allottee shall apply in writing to the watermaster for correction of any alleged errors in the report within 20 consecutive days following distribution of the monthly report.(c) A diverter shall request written certification in advance to allow travel time for the released water to reach the river diversion point as scheduled. Each reach of the river shall constitute one day of travel time from Amistad Dam downstream. Whenever there is a flow of water in the Rio Grande in excess of downstream requirements, the watermaster may waive travel time requirements to allow immediate diversions, provided that the diverter shall post the certification at or near his diversion facility.(d) Nondiverters who have water diverted and transported for them from the Rio Grande by an authorized diverter or carrier shall have the diverter place the order with the watermaster for the amount of water desired. Each diverter or carrier furnishing water to a nondiverter is required to furnish a report within five days of the last Saturday of the month to the watermaster, showing the amount of water in acre-feet delivered to the nondiverter, including transportation losses. If a nondiverter uses in excess of the amount to which he is entitled, the excess amount shall be charged against the account of the diverter.(e) Diversions shall be charged against the appropriate accounts as follows.(1) A diverter shall be charged with the actual amount diverted, without being penalized, if the total diversion is within plus or minus 10% of the amount requested pursuant to certification.(2) A diverter shall be charged with 90% of the certification amount if the total diversion is less than 90% of the amount requested pursuant to certification.(3) If the quantity of water diverted is more than 110% of the amount requested pursuant to certification, then the diverter will be charged with the actual amount of water diverted and the provisions of §303.31 of this title (relating to General) will apply.(4) The watermaster shall have the discretion to waive the penalties contained herein for excessive or inadequate diversions due to circumstances beyond the control of the diverter.(5) In accordance with Texas General Law, §2, Chapter 35, 1981, at page 75, water diverted by Maverick County Water Control and Improvement District 1 through its gravity irrigation diversion system that is returned to the stream from which it was taken at specific metered points or places operated by the International Boundary and Water Commission is surplus water as defined in said law and is not appropriated water. For water accounting and reporting purposes, surplus water shall not be counted as a part of the total amount of water authorized to be diverted for beneficial use under the district's water rights. Surplus water does not include water flowing into the Rio Grande from tributaries which flow into the Maverick system.(f) The burden shall be upon the diverter on the Middle and Lower Rio Grande to satisfy the watermaster that the diverter could not receive his total requested amount of water during the certification period because of the acts of other diverters or because of other clearly shown extenuating circumstances, and if such is shown, appropriate adjustments may be made by the watermaster.(g) If an allottee on the Middle or Lower Rio Grande has to terminate pumping before the end of the certification period, the allottee shall notify the watermaster as soon as possible. The effect of the termination in pumping is a termination in the certification. A new certification must be issued before the diverter may renew pumping.(h) Use of no charge water shall not be charged against the allottee's annual surface water use limit or against the allottee's account. The total amount of no charge water diverted must be stated separately in the annual surface water use report sent to the commission.</content><note type="source"><p>Source Note: The provisions of this §303.12 adopted to be effective July 2, 1986, 11 TexReg 288.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scB/s303.13"><num value="303.13">§303.13</num><heading>Records--Upper Rio Grande and All Rio Grande Tributaries</heading><content>(a) Diverters from the Upper Rio Grande and all Rio Grande tributaries must comply with the requirements of §303.11 of this title (relating to Records of Diversions-General).(b) A request for releases from Falcon and Amistad Reservoirs is not applicable. The watermaster will coordinate with the International Boundary and Water Commission regarding stored water released by Mexico to the Rio Conchos which contributes to the flow of the Rio Grande in the reach from Presidio to Amistad Reservoir.(c) Diverters shall make reports to the watermaster based on the information recorded on the pump operation report. The watermaster will advise these diverters of the report schedule (monthly, quarterly, yearly) required.(d) Diverters may be issued a one-year certification by the watermaster for up to the total annual authorized amount of the diverter's water right.(e) If complaints are received by the watermaster concerning insufficient water to satisfy senior and superior water rights, the watermaster will conduct an investigation and may institute procedures to distribute the available waters, such as:(1) order alternate pumping days for specified diverters;(2) limit the pumping time;(3) impose streamflow restrictions;(4) order pumping to cease or pump at a decreased diversion rate until the situation is improved; and/or(5) any other procedures needed to ensure water use is protected based on the priority system in the Texas Water Code.</content><note type="source"><p>Source Note: The provisions of this §303.13 adopted to be effective July 2, 1986, 11 TexReg 2889.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scB/s303.14"><num value="303.14">§303.14</num><heading>Appeal of Watermaster Actions</heading><content>Any person dissatisfied with any action of a watermaster may apply to the executive director for relief under the Texas Water Code, §11.326.</content><note type="source"><p>Source Note: The provisions of this §303.14 adopted to be effective July 2, 1986, 11 TexReg 2889.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scB/s303.15"><num value="303.15">§303.15</num><heading>Appointment of an Agent</heading><content>An agent for a water right holder who requests water shall submit to the watermaster a document signed by all the water right holders, indicating the owner-agent relationship and the duration of the agent authorization. The owner is responsible for the designation of one agent for the payment of assessments.</content><note type="source"><p>Source Note: The provisions of this §303.15 adopted to be effective July 2, 1986, 11 TexReg 2889.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scB/s303.16"><num value="303.16">§303.16</num><heading>Amistad/Falcon System</heading><content>The watermaster will request releases from Amistad and Falcon Reservoirs for authorized domestic, municipal, industrial, irrigation, and other uses in such a manner which promotes the efficient use and optimum yield of the United States' share of water in the Amistad/Falcon System, consistent with the 1944 Treaty between the United States and Mexico.</content><note type="source"><p>Source Note: The provisions of this §303.16 adopted to be effective July 2, 1986, 11 TexReg 2889.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scB/s303.17"><num value="303.17">§303.17</num><heading>Diversion Facilities</heading><content>It is the responsibility of all diverters to insure that their diversion facilities are capable of diverting the quantity of water authorized pursuant to certification, even under low or high water levels.</content><note type="source"><p>Source Note: The provisions of this §303.17 adopted to be effective July 2, 1986, 11 TexReg 2889.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scB/s303.18"><num value="303.18">§303.18</num><heading>Threats to Public Health and Safety and the Environment</heading><content>(a) The watermaster shall implement the procedures adopted by the agency during times of threats to public health and safety and the environment related to the waters of the Rio Grande below Fort Quitman, Texas.(b) The watermaster shall report activities that pose a threat to public health, safety, and the environment regarding waters of the Rio Grande under the watermaster's jurisdiction as required by the agency's procedures regarding homeland security.(c) The watermaster shall gather and distribute information from and to the Rio Grande water users, and assist water users in efforts to recover from an emergency.(d) The watermaster shall require water users to immediately cease any and all diversions of water during emergency periods when the watermaster declares that continued diversion and use of water would pose a hazard to public health and safety and the environment.(e) The watermaster shall maintain records of water users to enable the watermaster to provide notification of a threat to the water users in the watermaster's division.</content><note type="source"><p>Source Note: The provisions of this §303.18 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c303/scC"><num value="C">SUBCHAPTER C</num><heading>ALLOCATION AND DISTRIBUTION OF WATERS</heading><section identifier="/us/state/tx/tac/t30/p1/c303/scC/s303.21"><num value="303.21">§303.21</num><heading>Amistad/Falcon Reservoirs Accounts</heading><content>(a) For the purpose of establishing accounts in Amistad and Falcon Reservoirs, the two reservoirs are considered to constitute a single storage system. Accounts in the Lower and Middle Rio Grande are based upon a water right's annual authorization in acre-feet. Water rights for irrigation and mining purposes are considered as having irrigation priority rights and therefore are included in the irrigation accounting system.(b) When there is adequate water to do so, the watermaster shall maintain the following accounts:(1) a reserve of 225,000 acre-feet of water for domestic, municipal, and industrial uses;(2) an operating reserve of 75,000 acre-feet;(3) the accounts for irrigation uses and all other uses.(c) The operating reserve is necessary to cover losses of water charged to the United States. These losses are the result of seepage, evaporation, and conveyance; emergency requirements; and adjustments of amounts in storage as may be necessary by finalization of provisional computations by the International Boundary and Water Commission.(d) Water-in-transit accounts are not eligible for an allocation under §303.22 of this title (relating to Allocations to Accounts) and are regulated under Subchapter I of this chapter (relating to Rio Grande Bed and Banks Permits for Water-in-Transit) and Subchapter J of this chapter (relating to Administration of Rio Grande Bed and Banks Permits for Water-in-Transit).</content><note type="source"><p>Source Note: The provisions of this §303.21 adopted to be effective July 2, 1986, 11 TexReg 2890; amended to be effective April 26, 2001, 26 TexReg 3013; amended to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scC/s303.22"><num value="303.22">§303.22</num><heading>Allocations to Accounts</heading><content>(a) Allocations to Middle and Lower Rio Grande accounts, which do not include water-in-transit accounts, shall be based on water in the usable storage of Falcon and Amistad Reservoirs minus the water-in-transit held in storage at Falcon and Amistad Reservoirs. Such storage shall be computed as the total storage in Amistad and Falcon Reservoirs as reported by the International Boundary and Water Commission on the last Saturday of each month, less the water-in-transit and the amount of water in dead storage, which is water behind the dams that cannot be released due to hydrologic restrictions. To determine the amount of water to be allocated to the various accounts, computations shall be made in the following sequence:(1) from the amount of water in usable storage, deduct 225,000 acre-feet to re-establish the reserve for municipal, domestic, and industrial uses;(2) from the remaining storage, deduct the total end-of-month account balances for all Lower and Middle Rio Grande irrigation and mining allottees;(3) from the remaining storage, deduct 75,000 acre-feet for the operating reserve;(4) from the remaining storage, deduct the total amount of water held in storage from water-in-transit.(b) The water available for allotment after the deductions under subsection (a) of this section, shall be divided into Class A and Class B. Class A rights include all Class A water rights in the Lower and Middle Rio Grande Basins, as defined in §303.2(24)(A) of this title (relating to Definitions); Class B rights include all Class B water rights in the Lower and Middle Rio Grande Basins, as defined in §303.2(24)(B) of this title. Class A allottees shall receive 1.7 times as much water as that allotted to Class B allottees.(c) Allottees who do not put any of the water in their account to beneficial use within two consecutive calendar years shall have that account reduced to zero. No subsequent allocations will be made until the allottee advises the watermaster that water is expected to be used.(d) At no time shall the watermaster allow an allottee to accumulate in storage more than 1.41 times the annual authorized right in acre-feet. (e) No allocation will be made to a water right holder when the water right or a portion of the right does not identify a specific place or places of use. Only that portion of a water right which authorizes a specific place of use will receive an allocation based upon the number of acre-feet recognized to be used on that tract.(f) If the amount of usable water is insufficient to carry out all the steps specified in subsections (a) and (b) of this section, the computations will be made in the specified sequence, with the following adjustments. (1) If the watermaster determines there is insufficient water for allocation under subsection (b) of this section or other valid reasons for not allocating the available water, the unallocated storage after subsection (a)(3) of this section will be held for the next allocation period. In general, water will be allocated under subsection (b) of this section when there is at least 50,000 acre-feet available for that purpose.(2) The watermaster may not allocate water to Class A and Class B water rights users until the operating reserve is at or above 75,000 acre-feet. (3) If the balance available for the operating reserve is less than 75,000 acre-feet, but greater than zero acre-feet, then that amount will be the amount allocated to the operating reserve. If the operating reserve is less than zero acre-feet, the watermaster will deduct from the Class A, Class B, and water-in-transit accounts, via negative allocations, the amount necessary to provide 48,000 acre-feet for the operating reserve account. A negative allocation will be made on a pro rata basis, from all Class A, Class B, and water-in-transit accounts containing water at the time, based on the amount of water in such accounts. The watermaster will keep accurate records of the negative allocations affecting each Class A, Class B, and water-in-transit account. When the operating reserve has been restored to 48,000 acre-feet, negative allocations will cease. When the operating reserve has been restored to 75,000 acre-feet, and sufficient water is available, all accounts (excluding water-in-transit accounts) from which water has been deducted will be restored to the amount of water in each account prior to the negative allocation period and any new allotments will be made in accordance with subsections (a) and (b) of this section.(g) For each month of a proration period, the total amount of water authorized to be used for that calendar year by each of the four water rights listed in the following table will be incremently reduced or restored in the following manner. When the United States' share of storage in the Amistad-Falcon system is less than 50% of its total storage capacity, each 1.0% drop or rise in reservoir storage will reduce or increase the unprorated annual authorization by a corresponding amount listed under proration reduction in the following table. Once the prorated annual authorization has been reached, no further reductions will be made. During any month in which proration has been in effect, any allocation for the listed water rights will be based on the reduced unprorated annual amount. When conditions are such that it appears that the initiation of a proration period is imminent, the watermaster shall, at least two months in advance, advise the four affected water right holders of the anticipated proration.Attached Graphic(h) The watermaster may take any actions appropriate to prevent the waste of water or to alleviate emergencies.</content><note type="source"><p>Source Note: The provisions of this §303.22 adopted to be effective July 2, 1986, 11 TexReg 2890; amended to be effective April 26, 2001, 26 TexReg 3013; amended to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scC/s303.23"><num value="303.23">§303.23</num><heading>Distribution of Available Waters--Upper Rio Grande and All Rio Grande Tributaries</heading><content>(a) Distribution of waters in the Upper Rio Grande and all Rio Grande tributaries shall be based upon the amount of water authorized per annum and the priority date of the water right. Water rights holders in the Upper Rio Grande and all Rio Grande tributaries are entitled to waters flowing in these watercourses excluding water-in-transit, which can be beneficially used and which are used in accordance with §303.11 of this title (relating to Records of Diversions--General) and §303.13 of this title (relating to Records--Upper Rio Grande and All Rio Grande Tributaries). All waters excluding water-in-transit which cannot be so used shall be available to the Lower and Middle Rio Grande system.(b) Total certifications issued in a year shall be limited to the water rights holder's annual authorization.(c) In periods of shortage, on the watermaster's initiative or when requested by a water rights holder on the same tributary or on the Upper Rio Grande, the watermaster may impose limitations of the time, rate, and/or quantity of water diverted.(d) Distribution of available waters from the Rio Grande above Amistad and all Rio Grande tributaries shall not be eligible for distribution or use to water-in-transit accounts.</content><note type="source"><p>Source Note: The provisions of this §303.23 adopted to be effective July 2, 1986, 11 TexReg 2890; amended to be effective October 26, 2006, 31 TexReg 8716.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c303/scD"><num value="D">SUBCHAPTER D</num><heading>ENFORCEMENT REGARDING WATERMASTER OPERATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c303/scD/s303.31"><num value="303.31">§303.31</num><heading>General</heading><content>For a violation of any statutes of the Texas Water Code, or of the terms of a water right, or commission order or rules, the watermaster or executive director may pursue appropriate enforcement action if voluntary compliance is not promptly achieved.</content><note type="source"><p>Source Note: The provisions of this §303.31 adopted to be effective July 2, 1986, 11 TexReg 2890.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scD/s303.32"><num value="303.32">§303.32</num><heading>Enforcement Actions</heading><content>(a) The watermaster may seek voluntary compliance by ordering that:(1) a violator cease and desist any unauthorized diversion, taking, impoundment, transfer, or use of state water;(2) the owner of a lawful dam on a tributary pass inflows sufficient to satisfy the needs of downstream senior and superior rights; or(3) any person in violation of the Texas Water Code, commission rules, permit, certificate of adjudication, or commission order take necessary actions to achieve compliance.(b) In the absence of voluntary compliance in a timely manner, the watermaster may:(1) lock headgates or pumping facilities or take other necessary actions to effectively cease any unauthorized diversion or impoundment of state water;(2) refuse to issue a certification; or(3) refer the violation to the executive director.(c) The executive director may:(1) seek voluntary compliance;(2) refer a case to the attorney general for any appropriate legal remedy in a court of competent jurisdiction, which may include a penalty assessment of not more than $1,000 for each day the violator continues the taking, diversion, or appropriation as set forth in the Texas Water Code, §11.082;(3) seek an action before the commission culminating with the issuance of an appropriate order, which if subsequently violated, may be referred to the attorney general for appropriate action in a court of competent jurisdiction;(4) issue a field citation in accordance with §303.35 (relating to Field Citation by Watermaster); or(5) seek any other appropriate remedies or actions which are available at law.</content><note type="source"><p>Source Note: The provisions of this §303.32 adopted to be effective July 2, 1986, 11 TexReg 2890; amended to be effective January 4, 1999, 24 TexReg 13100.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scD/s303.33"><num value="303.33">§303.33</num><heading>Appeal</heading><content>All appeals from actions or decisions of the watermaster shall be in accordance with the Texas Water Code §11.326(f).</content><note type="source"><p>Source Note: The provisions of this §303.33 adopted to be effective July 2, 1986, 11 TexReg 2890.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scD/s303.34"><num value="303.34">§303.34</num><heading>Violations</heading><content>(a) It shall be a violation for any person to do the following:(1) divert, impound, or use any water from the Rio Grande or its tributaries, either personally or through another, without proper authorization under the Texas Water Code, these sections, and any applicable final judgment rendered by a court of competent jurisdiction;(2) refuse to allow or to interfere with the inspection of any land, natural waterway, artificial waterway, or diversion facility by an agent or employee of the executive director that would assist the commission in the discharge of its duties;(3) interfere with or refuse to comply with the execution of any order of the watermaster, executive director, or commission;(4) break, tamper with, or mutilate any seal or other device used to enforce orders of the commission, executive director, court, or watermaster;(5) make or send to the watermaster, executive director, or commission any false or misleading statement, or submit any untrue data in any pump operation report or surface water use report; or(6) violate any statute, rule, or order of the commission or watermaster.(b) The list of violations in subsection (a) of this section is not exclusive.</content><note type="source"><p>Source Note: The provisions of this §303.34 adopted to be effective July 2, 1986, 11 TexReg 2890.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scD/s303.35"><num value="303.35">§303.35</num><heading>Field Citation by Watermaster</heading><content>(a) Upon witnessing a violation set forth in subsection (d) of this section, the watermaster or the watermaster's deputy, may issue the alleged violator a field citation. The field citation will allege a violation has occurred and require that the alleged violator pay the administrative penalty and take remedial action as provided in the field citation. (b) The alleged violator may either pay the administrative penalty assessed by the field citation without admitting or denying the alleged violation or request a hearing on the alleged violation. (c) If the alleged violator fails to either pay the administrative penalty or take remedial action pursuant to a field citation issued under subsection (a) of this section, the executive director may proceed with enforcement action in accordance with Chapters 70 and 80 of this title. (d) Violations for which the watermaster may issue a field citation are as follows. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §303.35 adopted to be effective January 4, 1999, 23 TexReg 13100.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c303/scE"><num value="E">SUBCHAPTER E</num><heading>AMENDMENTS TO AND SALES OF WATER RIGHTS</heading><section identifier="/us/state/tx/tac/t30/p1/c303/scE/s303.40"><num value="303.40">§303.40</num><heading>Applicability</heading><content>This subchapter does not apply to water-in-transit permits. These permits are regulated under Subchapter I of this chapter (relating to Rio Grande Bed and Banks Permits for Water-in-Transit) and Subchapter J of this chapter (relating to Administration of Rio Grande Bed and Banks Permits for Water-in-Transit).</content><note type="source"><p>Source Note: The provisions of this §303.40 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scE/s303.41"><num value="303.41">§303.41</num><heading>Sale of Water Rights</heading><content>(a) The owner of a water right may convey his water right as provided by §297.81 of this title (relating to General Rules of Conveyance) and §297.82 of this title (relating to Duty to Inform Executive Director), after all outstanding fees, penalties, and interest, if any, as provided by §303.71 and §303.73 of this title (relating to Costs of Administration; and Assessment of Costs) are paid. The purpose and place of use shall not be changed without authorization from the commission. Owners of water rights shall promptly inform both the executive director and the watermaster of any transfers of water rights. The new owner must file with the executive director all required documents as identified in §297.83 of this title (relating to Recording Conveyances of Water Rights).(b) If a tract of land to which a smaller water right acreage is appurtenant is owned by more than one person in divided interests, a water right partition agreement is required among all the owners of said tract of land before any one of the owners can be authorized by the watermaster to divert water. However, if the owners fail to submit a water right partition agreement within one month after being notified by the executive director that such an agreement is needed, the executive director shall administratively divide the water rights among the owners on a prorata basis by acreage. The owners involved may request that the executive director grant an extension of the one-month deadline, not to exceed six months, if extenuating circumstances exist. If the executive director does not grant the extension, the division will be made on a prorata basis. The executive director will recognize the prorata shares until changes are made by valid partition agreement.</content><note type="source"><p>Source Note: The provisions of this §303.41 adopted to be effective July 2, 1986, 11 TexReg 2890; amended to be effective April 26, 2001, 26 TexReg 3013.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scE/s303.42"><num value="303.42">§303.42</num><heading>Amendments</heading><content>The commission will consider applications to amend water rights.(1) An applicant shall submit to the executive director an application prepared to reflect the desired change(s) and executed as provided in these sections. Applications must meet all of the requirements for an original water permit as set out in Chapter 295 of this title (relating to Water Rights, Procedural) and Chapter 297 of this title (relating to Water Rights, Substantive).(2) Determination of the type of notice required will be made by evaluating the applications according to §295.158 of this title (relating to Notice of Amendments to Water Rights). One exception to this is that changes in the purpose of use, rate of diversion, point of diversion, and place of use for water rights held in and transferred within and between the mainstems of the Lower Rio Grande, Middle Rio Grande, and Amistad Reservoir will not require mailed and published notice.(3) Transfer of the point of diversion or place of use of water rights from the Lower and Middle Rio Grande to above International Amistad Reservoir are prohibited; however, transfers may be made between the mainstem of the Lower Rio Grande and the mainstem of the Middle Rio Grande.(4) Transfers of the point of diversion or place of use of water rights from the Upper Rio Grande into the Middle and Lower Rio Grande below International Amistad Reservoir will be prohibited unless:(A) an applicable conversion factor has been approved by the commission;(B) the commission finds that the transfer would not impair other water rights within the Middle and Lower Rio Grande; and(C) the commission finds that the transfer would not reduce the amount of water available for allocation.</content><note type="source"><p>Source Note: The provisions of this §303.42 adopted to be effective July 2, 1986, 11 TexReg 2890; amended to be effective April 26, 2001, 26 TexReg 3013.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scE/s303.43"><num value="303.43">§303.43</num><heading>Conversion of Water Rights</heading><content>The purposes of use included in municipal priority rights are domestic, municipal, and industrial. The purposes of use included in the Class A and B priority rights are irrigation and other purposes of use, excluding domestic, municipal, industrial, nonconsumptive recreation, and hydro-electric. Unless otherwise stated in a certificate of adjudication, one acre of irrigation water right in the Lower Rio Grande will be equivalent to 2.5 acre-feet of water per annum. All Class A and B priority rights in the Lower and Middle Rio Grande which have been or will be acquired for domestic, municipal, or industrial use shall be amended to authorize the change in purpose of use and converted to receive a definite quantity of water in acre-feet per annum.(1) One acre-foot of Class A irrigation water right shall be converted to 0.5 acre-feet of water per annum for either domestic, municipal, or industrial purposes; one acre-foot of Class B irrigation water right shall be converted to 0.4 acre-feet of water per annum for either domestic, municipal, or industrial purposes.(2) An irrigation or mining water right which has been amended and converted to a municipal priority shall be allocated water on an equal basis with stipulated domestic, municipal, and industrial water rights recognized in the final judgment rendered in the Lower Rio Grande Valley water case and the final judgment in the adjudication of water rights on the Middle Rio Grande.</content><note type="source"><p>Source Note: The provisions of this §303.43 adopted to be effective July 2, 1986, 11 TexReg 2890.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scE/s303.44"><num value="303.44">§303.44</num><heading>Administration by Watermaster</heading><content>Owners of water rights shall promptly inform the executive director of any change of ownership of water rights. Thereafter, if the new ownership record is not complete, the executive director shall inform the alleged owner by letter that ownership documents must be filed within 30 days and approved by the executive director. During a 60-day period following the date of the executive director's letter, the watermaster will honor requests by the alleged owner for releases of water and/or for certification in accordance with the water right. After the 60-day period, no allocations will be made until the executive director notifies the watermaster of the approved change in ownership. Requests for extension of the initial 60-day period must be submitted in writing to the executive director prior to the end of the 60-day period. If the extension is granted, the watermaster may make allocations, issue certifications, and/or order releases for the alleged owner. If the extension is not granted, the watermaster will not issue a certification, make releases, or make allocations for the alleged owner until the executive director notifies the watermaster that ownership has been changed to include the new owner. If a water right amendment is required for the new owner to use water, the watermaster shall not honor requests by the new owner for water under that water right until the amendment has been granted by the commission.</content><note type="source"><p>Source Note: The provisions of this §303.44 adopted to be effective July 2, 1986, 11 TexReg 2890.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c303/scF"><num value="F">SUBCHAPTER F</num><heading>CONTRACTUAL SALES</heading><section identifier="/us/state/tx/tac/t30/p1/c303/scF/s303.51"><num value="303.51">§303.51</num><heading>General Policy</heading><content>Verified owners of water rights in the Middle and Lower Rio Grande with the right to call on releases from the Amistad-Falcon system may contract for the sale of all or part of their annual authorized amount of use to other water rights holders or their agents in the Middle and Lower Rio Grande, as long as all of the contractual sales rules are complied with. The resale of purchased water is prohibited. The use of contract sale water by buyer will not go to the perfection of seller's appropriative right. All existing contracts shall be filed with the executive director in accordance with this section.</content><note type="source"><p>Source Note: The provisions of this §303.51 adopted to be effective July 2, 1986, 11 TexReg 2890.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scF/s303.52"><num value="303.52">§303.52</num><heading>General Filing Requirements</heading><content>(a) If the sale of water is for a purpose of use other than that authorized in the seller's water right, then the supplier must file an application to amend that right and have the right amended before any sale may be approved.(b) If the use of water under the contract involves a change in the place of use, diversion point, or diversion rate, an amendment to sellers or buyers water right is not required. Seller or buyer shall file a copy of the executed contract with the executive director for approval. Water diverted pursuant to this section shall be diverted from a diversion point and used on a tract of land identified in commission records in accordance with §303.53(b) of this title (relating to Documents Needed to File).(c) The seller must be a verified owner of a water right. If the commission does not have adequate ownership records of the seller, then no sale may be approved by the executive director.(d) All contracts must be filed with and approved by the executive director as complying with all the sections relating to contractual sales. No deliveries of sold water will be made by the watermaster until all requirements are met.(e) The executive director will file the original approved contracts in the seller's permanent water right record and will send a copy of approved contracts to the watermaster.(f) No contract approval is required for sales of water by a district when the district's distribution facilities are used to deliver the water to the buyer for purposes authorized by the district's water right.(g) Seller can not use and/or sell in excess of his water right's annual authorized amount of use in any calendar year.</content><note type="source"><p>Source Note: The provisions of this §303.52 adopted to be effective July 2, 1986, 11 TexReg 2890.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scF/s303.53"><num value="303.53">§303.53</num><heading>Documents Needed To File</heading><content>(a) A contract of sale of water to be filed with the executive director in accordance with §303.52(d) of this title (relating to General Filing Requirements) shall indicate all of the following:(1) the specific certificate of adjudication or other water right under which the water is being sold;(2) the specific certificate of adjudication or other water right under which the bought water is to be used;(3) the name and address of the seller and buyer;(4) the total quantity of water being purchased in acre-feet;(5) the purpose of use for which the water is to be used;(6) the cost of water to the buyer per acre-foot;(7) the diversion point to which the buyer is requesting deliveries to be made;(8) the effective date and termination date of the contract:(A) contracts for Domestic, Municipal, and Industrial water shall terminate on the last Saturday of the calendar year in which the contract was entered; and,(B) for all other contracts, an effective date and termination date shall be determined by the interested parties;(9) the acreage to be irrigated, if applicable; and(10) the contract executed by all verified owners of the water right from which water is purchased.(b) The contract will be accompanied by an aerial photograph or United States Geological Survey topographic map with the location of diversion points and areas to be irrigated described thereon. In water-in-transit contractual sales, the contract must also include an aerial photograph or United States Geological Survey topographic map with the location of the discharge point(s).(c) The executive director may require any additional information needed to approve the contract, including any agreements with diverters if the buyer is not pumping from his own diversion point and deeds of any tracts to be irrigated.(d) All contracts for water, irrespective to termination date of the contract, remain subject to the requirements of §303.22(c) of this title (relating to Allocations to Accounts).</content><note type="source"><p>Source Note: The provisions of this §303.53 adopted to be effective July 2, 1986, 11 TexReg 2890; amended to be effective October 26, 2006, 31 TexReg 8716; amended to be effective November 28, 2013, 38 TexReg 8443.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scF/s303.54"><num value="303.54">§303.54</num><heading>Responsibilities of Buyer and Seller</heading><content>(a) Both buyer and seller must comply with all Texas Water Commission rules and watermaster orders.(b) The buyer must obtain a certification from the watermaster before pumping.(c) The buyer and seller are solely responsible as to the resolution of conflict regarding the terms and conditions of a water contract sale.(d) The seller is responsible for reporting all sales of water on theyearly surface water use reports. The buyer must also report his use of purchased water separately from his water right on his yearly surface water use report.</content><note type="source"><p>Source Note: The provisions of this §303.54 adopted to be effective July 2, 1986, 11 TexReg 2890.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scF/s303.55"><num value="303.55">§303.55</num><heading>Accounting for Contract Sale Water</heading><content>(a) The watermaster will transfer the full amount, or portion thereof, of water specified in an approved contract from the seller's to the buyer's account upon contract approval.(b) Upon transfer of contract sale water to buyer's account, subsequent use of water by buyer will be deducted from the contract water balance until the contract water balance equals zero or until the contract expiration date.(c) Any contract water balance remaining in buyer's account at the contract expiration date will be deducted from buyer's account and will be available for allocation to the system reserves and accounts according to §303.22 of this title (relating to Allocations to Accounts).(d) Buyer may not sell any water via contract as long as his bought water balance is greater than zero.(e) At no time will buyer's or seller's Class A or Class B storage exceed 1.41 times the water right holder's recognized amount in acre-feet.</content><note type="source"><p>Source Note: The provisions of this §303.55 adopted to be effective July 2, 1986, 11 TexReg 2890; amended to be effective October 26, 2006, 31 TexReg 8716.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c303/scG"><num value="G">SUBCHAPTER G</num><heading>EXCESS FLOW PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c303/scG/s303.61"><num value="303.61">§303.61</num><heading>Excess Flow Permit</heading><content>An excess flow permit authorizes the use of the Texas share of the Rio Grande below the International Boundary and Water Commission gaging station near Brownsville, Texas, (United States geological survey (U.S.G.S.) Identification (ID) Number 08475000) for irrigation purposes when there is unanticipated flow which would pass unused to the Gulf. The permit holder does not have a call on storage from Amistad or Falcon Reservoirs nor shall priority be attached to such flows on any water availability analysis for any possible future reservoirs on the Rio Grande. Permittee must contact the watermaster prior to diversion to obtain a certification and to determine whether water is available at the authorized point of diversion, excluding releases made by the watermaster for water rights holders below permittee's diversion point. Application requirements are the same as those required for the Texas Water Code, §11.121, permits. As between holders of this type of water right, the priority will be first in time, first in right. Permits previously authorized as surplus water permits will be considered henceforth as excess flow permits.</content><note type="source"><p>Source Note: The provisions of this §303.61 adopted to be effective July 2, 1986, 11 TexReg 2891.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c303/scH"><num value="H">SUBCHAPTER H</num><heading>FINANCING RIO GRANDE WATERMASTER OPERATION</heading><section identifier="/us/state/tx/tac/t30/p1/c303/scH/s303.71"><num value="303.71">§303.71</num><heading>Costs of Administration</heading><content>Under the Texas Water Code, §11.329, holders of water rights that are administered by the Rio Grande watermaster shall reimburse the commission for the expenses of the wastermaster operation. An assessment account shall be established for each water right, or for each authorization thereunder by category of use. The commission shall not assess costs against a holder of a non-priority hydroelectric right that owns or operates privately-owned facilities that collectively have a capacity of less than two megawatts. The assessment for each account shall be the sum of a uniform base charge and, as applicable, a use fee and a storage fee. Following a public meeting, the commission shall issue an order approving the assessment income needed for the Rio Grande Watermaster for the next fiscal year. The order shall also specify the base charge per account and the reinstatement fee for delinquent assessment payment. At least 30 days prior to the commission holding such a meeting, the executive director shall file with the commission a copy of the proposed budget.</content><note type="source"><p>Source Note: The provisions of this §303.71 adopted to be effective August 26, 1987, 12 TexReg 2684; amended to be effective February 6, 2002, 27 TexReg 759.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scH/s303.72"><num value="303.72">§303.72</num><heading>Determination of Assessment Rates</heading><content>(a) After a commission order is issued approving the assessment income needed for the next fiscal year, the executive director shall calculate assessment rates for water use and storage based on the following formula: Attached Graphic(b) After the assessment rate of municipal use has been determined, the assessment rates for the other uses and for storage shall be calculated by multiplying the municipal assessment rate times rate factor for each use and for storage.(c) On or before September 1, 1989, the commission shall review this section for any appropriate changes.</content><note type="source"><p>Source Note: The provisions of this §303.72 adopted to be effective August 26, 1987, 12 TexReg 2684; amended to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scH/s303.73"><num value="303.73">§303.73</num><heading>Assessment of Costs</heading><content>(a) To determine the amount of assessment for each account, computations shall be made by adding together the following elements:(1) the base charge per account as specified in the commission order adopted in accordance with §303.71 of this title (relating to Costs of Administration) ;(2) the use fee, which is calculated by multiplying the total amount of water authorized for use under that account by the appropriate assessment rate as determined by §303.72 of this title (relating to Determination of Assessment Rates); and,(3) the storage fee, which is calculated by multiplying the total amount of water authorized for storage under that account by the storage assessment rate as determined by §303.72 of this title (relating to Determination of Assessment Rates). For any water right authorizing storage and also more than one type of use, a storage fee for the total storage authorization shall be applied to only one of the assessment accounts associated with that water right.(b) The annual assessment shall be paid to the executive director in advance of expenditures. The executive director shall specify the dates by which payments shall be due, and may provide for payments in installments. Penalties and interest for the late payment of fees shall be assessed in accordance with Chapter 12 of this title (relating to Payment of Fees). If fees are paid in installments, penalties and interest for late payment shall be computed on the amount of the installment due. The executive director shall transmit all collections to the state treasurer to be held in a special fund to provide for the cost of the Rio Grande watermaster operation.(c) For diversions of no-charge water in accordance with the August 4, 1981 Texas Water Commission order and any subsequent orders relating to the intermittent temporary diversion and use of Rio Grande waters, and for diversions of excess flow water in accordance with water rights authorizing such diversions, assessments will be levied in the fiscal year following the year of the diversion, and will be based on the amount shown by watermaster records to have been diverted. Assessment rates for no-charge and excess flow usage will be the same as for regulating assessments for the particular uses to which the no-charge or excess flow water was applied during the year of the diversion. No assessments will be made for use of less than 50 acre-feet of no-charge or excess flow water, and no base charge or storage fee will applied. The amount of assessment income for no-charge and excess flow uses will not be considered directly in determining the amount of income needed under §303.71 of this title (relating to Costs of Administration).(d) Water shall not be diverted, taken, stored, or used by any diverter or agent while any assessment payment is delinquent; neither shall an allottee be allocated any additional water or delivered any water until all assessments, plus any applicable reinstatement fees, are received by the executive director. Once the assessments and reinstatement fees are paid in full, an allottee's requests for water will be honored only to the extent water remained in the storage account before the first date of the delinquency in payments, and to the extent water remained in the storage account under §303.22 of this title (relating to Allocations to Accounts). An allottee's storage account will be reduced to zero if the assessment and any applicable reinstatement fees are not paid within a one-year period after the first assessment due date.(e) On or before September 1, 1989, the commission shall review this section for any appropriate changes.</content><note type="source"><p>Source Note: The provisions of this §303.73 adopted to be effective August 26, 1987, 12 TexReg 2684; amended to be effective February 14, 1997, 22 TexReg 1324.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c303/scI"><num value="I">SUBCHAPTER I</num><heading>RIO GRANDE BED AND BANKS PERMITS FOR WATER-IN-TRANSIT</heading><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.74"><num value="303.74">§303.74</num><heading>General</heading><content>This subchapter is applicable to water rights permits for water-in-transit in the Rio Grande below Fort Quitman, Texas. All other rules, regulations, or orders promulgated or issued by the commission regarding water rights are also applicable to water-in-transit water rights unless in conflict with the provisions of this subchapter, in which event this subchapter shall govern.</content><note type="source"><p>Source Note: The provisions of this §303.74 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.75"><num value="303.75">§303.75</num><heading>Requirements for an Application to Convey Water-in-Transit in the Bed and Banks of the Rio Grande</heading><content>(a) The purpose of this section is to provide the application content requirements for a bed and banks permit authorization for water-in-transit in the Rio Grande under Texas Water Code, §11.3271.(b) A person who intends to discharge private water that originates from an underground reservoir into the Rio Grande and wishes to divert and use the discharged water must submit an application to the commission containing the following information:(1) the name, mailing address, and telephone number of the applicant;(2) the location(s) of the proposed groundwater reservoir from which the water will originate identified on a United States Geological Survey (USGS) 7.5 minute topographical map(s);(3) the location(s) of the point of the proposed discharge(s) into the Rio Grande and diversion(s) as identified on a USGS 7.5 minute topographical map(s);(4) the appropriate ownership or lease documents evidencing applicant's authority to develop the proposed project;(5) the source, including a hydrological determination regarding any interaction between the groundwater source and state waters, amount, and rates of the proposed discharge and diversion;(6) a description of the quality of the water proposed to be discharged and a description of the Rio Grande water quality at the proposed discharge point with documentation that the discharge will not degrade the Rio Grande;(7) the date of the proposed discharge of the groundwater into the Rio Grande;(8) an analysis of the amount of water that will be lost under differing flow regimes to transportation, evaporation, seepage, channel, treaty accounting, or other associated losses for each reach of the Rio Grande from the point of discharge to Amistad or Falcon Reservoir, including losses associated with storage in these reservoirs, and carriage losses from these reservoirs to the point of diversion. The losses shall be quantified for each reach of the Rio Grande below Amistad Reservoir as listed in §303.2 of this title (relating to Definitions) and for the appropriate reaches above Amistad Reservoir;(9) the maximum amount of water which may be stored in Amistad and/or Falcon Reservoir; and(10) any other information the executive director may need to complete an analysis of the application.(c) The method and calculation of any losses including, but not limited to, carriage, treaty accounting completed by the International Boundary and Water Commission (IBWC), storage, and that are associated with any permit issued under this section shall be quantified and made a provision of the permit and shall be subject to the review and approval of the executive director. The method of loss calculation shall be consistent with procedures used by the IBWC.</content><note type="source"><p>Source Note: The provisions of this §303.75 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.76"><num value="303.76">§303.76</num><heading>Use of Forms</heading><content>The executive director will furnish, without charge, forms and instructions for preparing an application. The use of such forms is not mandatory, but the information required by such forms must be provided. Supplements may be attached if there is not sufficient space on the printed form. If supplements are used, the data and information entered on the form must be separated into paragraphs numbered to correspond with those on the printed form. A supplement explaining the project and planned operation may be attached to an application.</content><note type="source"><p>Source Note: The provisions of this §303.76 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.77"><num value="303.77">§303.77</num><heading>Preparation of Application</heading><content>(a) All applications must be typewritten or printed legibly in ink. Illegible applications will be returned to the applicant.(b) Applicants will be notified if additional information is needed to process an application.(c) Upon express written or verbal approval of the applicant or the applicant's agent, any employee of the commission may make non-substantive changes in any documents submitted by the applicant.(d) Substantive changes in an application may be made only by the applicant or the applicant's agent who submitted the application and only in the form of a written, notarized amendment to the application signed by the proper person; provided, however, that no substantive changes may be made after an application has been filed with the chief clerk by the executive director.(e) The executive director shall file the application with the chief clerk once the application has been determined to be administratively complete.</content><note type="source"><p>Source Note: The provisions of this §303.77 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.78"><num value="303.78">§303.78</num><heading>Name and Address</heading><content>(a) Each applicant must provide its full name, post-office address, telephone number, and social security or federal identification number.(b) If the applicant is a partnership, it must be designated by the firm name followed by the words "a partnership."(c) If the applicant is acting as trustee for another, it must be designated by the trustee's name followed by the word "trustee."(d) If one other than the named applicant executes the application, the name, position, post-office address, and telephone number of the person executing the application must be given.</content><note type="source"><p>Source Note: The provisions of this §303.78 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.79"><num value="303.79">§303.79</num><heading>Source of Supply</heading><content>The applicant must clearly state the name and location of the underground reservoir from which the water will originate. If the source has no name, it may be designated as "an unnamed reservoir."</content><note type="source"><p>Source Note: The provisions of this §303.79 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.80"><num value="303.80">§303.80</num><heading>Amount of Discharge and Diversion</heading><content>The total amount of water to be discharged and diverted must be stated in cubic feet per second and acre-feet annually.</content><note type="source"><p>Source Note: The provisions of this §303.80 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.81"><num value="303.81">§303.81</num><heading>Rate and Method of Diversion</heading><content>The application must:(1) include the maximum rate of diversion for each diversion point in gallons per minute or cubic feet per second;(2) describe the method to be used as portable pump, stationary pump, or gravity flow;(3) include the location of point(s) of discharge and diversion. These locations must also be shown on the application maps with reference to a corner of an original land survey and/or other survey point of record, giving both course and distance; and(4) include the distance and direction from the nearest county seat or town.</content><note type="source"><p>Source Note: The provisions of this §303.81 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.82"><num value="303.82">§303.82</num><heading>Signature of Applicant</heading><content>The application must be signed as follows.(1) If the applicant is an individual, the application must be signed by the applicant or the applicant's duly appointed agent. An agent must provide written evidence with the application of his or her authority to represent the applicant. If the applicant is an individual doing business under an assumed name, the applicant must attach to the application an assumed name certificate from the county clerk of the county in which the principal place of business is located.(2) A joint application must be signed by each applicant or each applicant's duly authorized agent, with written evidence of such agency to be submitted with the application. If land is owned by both husband and wife, each must sign the application. Joint applicants must select one among them to act for and represent the others in pursuing the application with the commission, with written evidence of such representation to be submitted with the application.(3) If the application is by a partnership, the application must be signed by one of the general partners. If the applicant is a partnership doing business under an assumed name, it must attach to the application an assumed name certificate from the county clerk of the county in which the principal place of business is located.(4) If the applicant is an estate or guardianship, the application must be signed by the duly appointed guardian or representative of the estate, and a current copy of the letters issued by the court must be attached to the application.(5) If the applicant is a corporation, public district, county, municipality, or other corporate entity, the application must be signed by a duly authorized official. Written evidence in the form of by-laws, charters, or resolutions which specify the authority of the official to take such action must be submitted. A corporation may file a corporate affidavit as evidence of the official's authority to sign.(6) If the applicant is acting as trustee for another, the applicant must sign as trustee, and in the application must disclose the nature of the trust agreement and give the name and current address of each trust beneficiary.</content><note type="source"><p>Source Note: The provisions of this §303.82 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.83"><num value="303.83">§303.83</num><heading>Sworn Application Required</heading><content>Each applicant must subscribe and swear to the application before any person entitled to administer oaths, who must also sign his or her name and affix his or her seal of office to the application.</content><note type="source"><p>Source Note: The provisions of this §303.83 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.84"><num value="303.84">§303.84</num><heading>Consistency With State And Regional Water Plans</heading><content>An application must contain information describing how it addresses a water supply need in a manner that is consistent with the state water plan or the applicable approved regional water plan for any area in which the proposed appropriation is located or, in the alternative, describe conditions that warrant a waiver of this requirement.</content><note type="source"><p>Source Note: The provisions of this §303.84 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.85"><num value="303.85">§303.85</num><heading>Fees for Filing an Application</heading><content>(a) Fees. Statutory fees must accompany an application in order for it to be considered by the commission. The executive director's staff are expressly prohibited from processing any application unless the proper fees are tendered. The executive director shall charge and collect for the benefit of the state the applicable fees, and it shall be his duty to make a record at the time same becomes due and to render an account to the party charged. Each fee is a separate charge and is in addition to other fees, unless provided otherwise.(b) Filing, recording, and notice fees. The following fees must be submitted with any application for a water-in-transit permit or any application for an amendment to a water-in-transit permit.(1) Application filing fees are established as follows.(A) Fees for a water-in-transit permit application must be based upon the total amount of water requested to be discharged for transit as follows:(i) less than 100 acre-feet - $100;(ii) 100 - 5,000 acre-feet - $250;(iii) 5,001 - 10,000 acre-feet - $500;(iv) 10,001 - 250,000 acre-feet - $1,000; and(v) greater than 250,000 acre-feet - $2,000.(B) Fees to amend a water-in-transit right are $100 per right requested to be amended.(2) Recording fees are $1.25 per page of the application.(3) The applicant must pay the total cost of mailing notice to persons in the Rio Grande water division. The executive director will advise the applicant of the number of persons to whom notice is mailed and the total mailing cost. A water-in-transit permit or amendment will require notice to all owners of water rights within the Rio Grande water division of any such application.(c) Publication. The cost of any required publication must be paid by the applicant directly to the newspaper involved. Publication is required in newspapers of general circulation throughout the basin.(d) One-time transit fees. A use fee of $1.00 per acre-foot of water discharged for transit shall be charged.(e) Payment of fees exceeding $1,000. If the total fee for a permit exceeds $1,000, the applicant must pay at least one-half of the use fee when the application is filed, and one-half within 180 days after notice is mailed to the applicant that the permit is granted. If the applicant does not pay all of the amount owed before beginning to use state water under the permit, the permit is annulled and reverts to the status of a pending, filed application requiring notice, the payment of notice fees, and the balance of the use fees.(f) Maximum fees. The one-time transit use fee shall not exceed $50,000.(g) Inquiries as to fees. Any inquiries as to fees must be made in advance to the executive director. The applicant is charged with the duty of tendering correct fees according to law. In case of disagreement between the applicant and the executive director over the proper amount of the fees required, the application will be filed "under protest" and the fees paid by the applicant will be placed in suspense until the issue is resolved.(h) Return of fees.(1) Other than the filing and recording fees required by statute, all fees paid pertaining to an application for a water-in-transit permit which have not been expended in the processing of the application will be placed in suspense until action is taken by the commission upon the application.(2) If the permit is not granted, unexpended fees will be returned to the applicant.(3) If the application is granted in part, excess use fees will be returned to the applicant.(4) No fees will be returned to any applicant who has failed to notify the executive director of the applicant's social security or federal identification number.</content><note type="source"><p>Source Note: The provisions of this §303.85 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.86"><num value="303.86">§303.86</num><heading>Notice Requirements for Water-in-Transit Applications</heading><content>(a) At the time an application for a water-in-transit permit has been filed by the executive director with the chief clerk, the commission shall give notice by mail to those persons specified in subsection (d) of this section. At such time, the chief clerk shall furnish a copy of the notice to the applicant, and the applicant must publish notice, pursuant to subsection (c) of this section.(b) A notice of application and commission action must:(1) include the name and address of the applicant;(2) include the date on which the application was received by the commission;(3) include the date the application was filed by the executive director with the chief clerk;(4) include that the executive director has determined that the application is administratively complete;(5) include the application number;(6) include the type of permit the applicant is seeking;(7) include the purpose and extent of the proposed transfer of water;(8) identify the source of supply, place of discharge, and the place where the water is to be diverted;(9) specify the time and location where the commission will consider the application;(10) identify all potentially affected groundwater districts;(11) give any additional information the executive director considers necessary.(c) The applicant must publish the notice in newspapers of general circulation in each county within the Rio Grande water division. The date of publication must be on or before the date of publication directed by the chief clerk.(d) Notice by mail.(1) The commission shall mail the notice by first-class mail, postage prepaid, to persons listed in this subsection after the executive director has declared the application administratively complete.(2) For an application for a water-in-transit permit pursuant to Texas Water Code, §11.3271 or for an amendment to a Texas Water Code, §11.3271 permit, notice must be mailed to:(A) each claimant or appropriator of water within the Rio Grande water division below Fort Quitman, Texas, the record of whose claim or appropriation has been filed with the commission or its predecessor agencies;(B) all groundwater districts potentially impacted by the application; and(C) other persons who in the judgment of the commission might be affected.</content><note type="source"><p>Source Note: The provisions of this §303.86 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.87"><num value="303.87">§303.87</num><heading>Notice of Hearing</heading><content>A hearing on an application may be held without the necessity of issuing further notice other than advising the applicant, executive director, public interest counsel, all hearing requestors, and all persons who have in writing notified the commission of their interest in the application of the time and place where the hearing is to convene. The chief clerk will mail such notice to these persons not less than 30 days before the date of the hearing.</content><note type="source"><p>Source Note: The provisions of this §303.87 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.88"><num value="303.88">§303.88</num><heading>Request for Public Hearing</heading><content>A request for public hearing on an application for a water-in-transit permit or amendment is governed by Chapter 55, Subchapter G of this title (relating to Requests for Contested Case Hearing and Public Comment on Certain Applications).</content><note type="source"><p>Source Note: The provisions of this §303.88 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.89"><num value="303.89">§303.89</num><heading>Public Hearing</heading><content>The commission may conduct a public hearing as provided by in Chapter 80 of this title (relating to Contested Case Hearings).</content><note type="source"><p>Source Note: The provisions of this §303.89 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scI/s303.90"><num value="303.90">§303.90</num><heading>Action on Application Without Public Hearing</heading><content>If no hearing requests are filed as provided for in §303.88 of this title (relating to Request for Public Hearing) the executive director may issue the permit if the requirements of Chapter 50 of this title (relating to Action on Applications and Other Authorizations) are met.</content><note type="source"><p>Source Note: The provisions of this §303.90 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c303/scJ"><num value="J">SUBCHAPTER J</num><heading>ADMINISTRATION OF RIO GRANDE BED AND BANKS PERMITS FOR WATER-IN-TRANSIT</heading><section identifier="/us/state/tx/tac/t30/p1/c303/scJ/s303.91"><num value="303.91">§303.91</num><heading>Water-in-Transit Permit Accounts</heading><content>(a) Purpose. The purpose of this section is to provide the administrative responsibilities of the watermaster regarding any water-in-transit permits.(b) Storage and losses. For the purpose of establishing accounts in Amistad and Falcon Reservoirs, the two reservoirs are considered to constitute a single storage system.(1) The watermaster shall establish an account of water stored in the Amistad - Falcon system for these water-in-transit permits only if there is storage space available in the reservoirs.(2) The water stored shall be based upon the amount of water discharged into the Rio Grande minus appropriate losses to either Falcon or Amistad Reservoir.(3) All associated losses will be calculated by the method specified in the permit. The water-in-transit storage accounts shall be subject to reductions as determined by the watermaster to cover losses while water is in storage. Any water diverted downstream from water released from these accounts will be reduced by the appropriate losses, including conveyance losses, from either Falcon or Amistad Reservoir. These losses will also be calculated by the method specified in the permit and by the 1944 Treaty.(4) If and when Rio Grande treaty inflows to the reservoirs reach the point where the storage space occupied by the transit water authorized by these permits is required to store these inflows, the transit water accounts will be reduced or eliminated on a priority date basis to enable these inflows to be stored. Water lost due to storage space limitations will not be restored by the watermaster.(c) Records of inflows/diversions.(1) The watermaster shall locate, number by river mile or other method, and rate as to capacity all authorized discharges and diversions associated with a permit for water transit, and the owner or operator of the water-in-transit shall be advised in writing of these facts.(2) All discharges into the Rio Grande and all diversions from the Rio Grande pursuant to these permits shall be metered or measured by a method approved by the watermaster.(3) When a permanent facility is replaced at the same location or when any changes in rating are made, the water-in-transit permittee must immediately inform the watermaster prior to diversion.(4) Any change in the location of the discharges or diversion facilities and place of use on the Middle or Lower Rio Grande must be made pursuant to §295.71 of this title (relating to Applications to Amend a Permit) and §295.158(c) of this title (relating to Notice of Amendments to Water Rights), not requiring mailed and published notice.(5) Any change in the location of the discharge or diversion facilities and place of use on the Upper Rio Grande and tributaries to the Rio Grande must be made pursuant to §295.71 and §295.158(b) of this title, requiring mailed and published notice.(d) Consistency with the Treaty. The watermaster will request releases from Amistad and Falcon Reservoirs in such a manner that promotes the efficient use and optimum yield of the United States' share of water in the Amistad/Falcon System, consistent with the 1944 Treaty between the United States and Mexico. Any water inflows, conveyance losses, and water stored in these water-in-transit accounts must be consistent with any accounting of waters by the International Boundary and Water Commission (IBWC) relating to the 1944 Treaty with Mexico. No water can be credited to such accounts unless it has first discharged to the Rio Grande under a water-in-transit permit. Water-in-transit will be subject to allocation under the Treaty. The watermaster will only credit water-in-transit accounts with the amount of water-in-transit included in the United States' share of water by the IBWC.(e) Certification.(1) Each diverter must request written certification from the watermaster prior to diverting water-in-transit by identifying the specific permit to be used and the pump number of the pump to be used.(2) Certifications will be granted only for diversion from authorized diversion points associated with that permit.(3) Any diversion of water released from an account for water-in-transit in Falcon or Amistad Reservoir will be subject to transportation losses to the point of diversion as specified by the permit.(4) Each reach of the river shall constitute one day of travel time from Amistad Dam downstream.(5) Certifications are limited to a maximum diversion period of one calendar week.(f) Diversions. Diversions shall be charged against the appropriate accounts as follows.(1) A diverter shall be charged with the actual amount diverted, without being penalized, if the total diversion is within plus or minus 10% of the amount requested, minus conveyance losses, pursuant to certification.(2) A diverter shall be charged with 90% of the certification amount if the total diversion is less than 90% of the amount requested, minus conveyance losses.(3) If the quantity of water diverted is more than 110% of the amount requested according to the certification, then the diverter will be charged with the actual amount of water diverted and the provisions of §303.31 of this title (relating to General) will apply.(4) The watermaster shall have the discretion to waive the penalties for excessive or inadequate diversions due to circumstances beyond the control of the diverter.(5) No certification will be issued that exceeds the maximum annual authorization of the permit. The watermaster is authorized to cancel a certification or to refuse or modify a request for the diversion of water.(g) Ownership records. Except as provided in §303.44 of this title (relating to the Administration by Watermaster), the watermaster will refuse a request of a diverter if the water rights holder whose water is to be diverted does not have complete ownership records on file with the commission. The watermaster will maintain a list of all water rights holders with incomplete ownership records and will remove names from that list after the executive director notifies the watermaster that the ownership record has been completed.(h) Certification to be posted.(1) Each diverter must post at or near his diversion facility the watermaster certification authorizing the diversion of water.(2) In the event the certification has been granted but is not received by the diverter by the time diversion is authorized, the diverter must post a written note at or near the diversion facility in lieu of the watermaster certification, stating the pump number and the dates and hours of the request and that verbal authority was given by the watermaster.(3) The diverter must ensure that the written note conforms to the time and conditions shown on the watermaster certification.(4) The diverter must replace the written note with the watermaster certification, upon receipt.(i) Measuring devices.(1) Each diverter must install and maintain meters or other measuring devices at the authorized point of discharge and diversion which will provide for accurate measurement and accounting of the quantities of water diverted.(2) The installation, maintenance, and operation of measuring devices by the diverter must be subject to approval of the watermaster.(3) The diverter must ensure the accessibility of the measuring device, so it can be conveniently and safely located and checked by the watermaster.(4) The diverter must be liable for all expenses incurred in the acquisition, installation, maintenance, and operation of measuring devices.(j) Diversion. Each diverter must divert water in accordance with the watermaster certification.(k) Report by water-in-transit permittee.(1) Each water right holder or his designated agent must submit to the watermaster a written report of the amount of water actually discharged, diverted, and used during the reporting period. All pumps used during the reporting period, including borrowed and rented pumps, must be shown by number on the pump operation report with metered readings or with the number of hours operated for each reporting period. The watermaster will accept as timely all pump operation reports for each diversion pump received within seven days or postmarked within five days from the termination of the certification period. If the pump operation report is incomplete or not timely filed, the watermaster will refuse to issue a new certification until the complete report is filed. Pump operation reports, other than International Boundary and Water Commission diversion reports, received in the watermaster's office are unacceptable:(A) if unsigned; or(B) if the measuring device reading is not shown.(2) The water right holder is responsible for reporting actual use based on the records kept by the water right holder or diverter.(3) The watermaster shall not prepare annual surface water use reports.(l) Inventory of water in Falcon and Amistad Reservoirs. The watermaster shall maintain an accurate inventory of water in Falcon and Amistad Reservoirs including water-in-transit accounts and shall maintain records and institute necessary procedures with the International Boundary and Water Commission as may be appropriate to perform this function.(m) Report by watermaster.(1) The watermaster shall submit a monthly report to each water-in-transit permittee, or his designated agent, showing the current status of each water-in-transit permittee's account.(2) The period of time covered by each report shall be from the last Saturday of a month at midnight to the last Saturday of the following month at midnight. The watermaster shall provide the date for the end of the watermaster's next reporting period.(3) Each water-in-transit permittee must apply in writing to the watermaster for correction of any alleged errors in the report within 20 consecutive days following distribution of the monthly report.(n) Request for travel time.(1) A diverter must request written certification in advance to allow travel time for the released water to reach the river diversion point as scheduled.(2) Each reach of the river shall constitute one day of travel time from Amistad Dam downstream.(3) Whenever there is a flow of water in the Rio Grande in excess of downstream requirements, the watermaster may waive travel time requirements to allow immediate diversions, provided that the diverter shall post the certification at or near his diversion facility.(o) No charge water. The watermaster shall not authorize no charge water as described in the August 4, 1981, Texas Water Commission order and any subsequent orders relating to the intermittent temporary diversion and use of Rio Grande waters, to water-in-transit accounts.</content><note type="source"><p>Source Note: The provisions of this §303.91 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c303/scJ/s303.92"><num value="303.92">§303.92</num><heading>Appeal of Watermaster Actions</heading><content>Any person dissatisfied with any action of a watermaster may apply to the executive director for relief under Texas Water Code, §11.326.</content><note type="source"><p>Source Note: The provisions of this §303.92 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c303/scK"><num value="K">SUBCHAPTER K</num><heading>FILING CERTIFIED COPIES OF INSTRUMENTS WITH THE WATERMASTER</heading><section identifier="/us/state/tx/tac/t30/p1/c303/scK/s303.93"><num value="303.93">§303.93</num><heading>Filing Certified Copies of Instruments with the Watermaster</heading><content>(a) Certified copies of all instruments required to be filed under Chapter 295, Subchapter A of this title (relating to Requirements of Water Rights Applications General Provisions) for permits, certified filings, or certificates of adjudication in the watermaster's jurisdiction must be filed with the watermaster. Certified copies of instruments not required to be submitted for permits, certified filings, or certificates of adjudication in the watermaster's jurisdiction may be filed with the watermaster. Documents required to be filed with the watermaster under this chapter must be filed with the watermaster.(b) Persons must file two certified copies of each instrument with the watermaster.(c) If an applicant is required to file an instrument listed in subsection (a) of this section in connection with an application, the applicant must also file two certified copies of the document with the watermaster at the same time that the applicant files the application with the executive director. For water rights which have already been issued, the water right holder must file these documents as soon as possible with the watermaster.(d) For filing certified copies of the instruments described in subsections (a) - (c) of this section, the watermaster shall charge a fee which is identical to the fee charged by the county clerk of Cameron County for recordation of similar instruments.</content><note type="source"><p>Source Note: The provisions of this §303.93 adopted to be effective October 26, 2006, 31 TexReg 8716.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c304"><num value="304">CHAPTER 304</num><heading>WATERMASTER OPERATIONS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c304/scA"><num value="A">SUBCHAPTER A</num><heading>INTRODUCTORY PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c304/scA/s304.1"><num value="304.1">§304.1</num><heading>Applicability</heading><content>Other than the Rio Grande Water Division, the provisions of this chapter are applicable to each water division created by the commission or watermaster program created by or under Texas Water Code, Chapter 11, each watermaster appointed by the executive director under Texas Water Code, Chapter 11, and to all water rights, permits, authorizations, orders, and any other matters related to water rights within each water division, segments of a water division, or watermaster program. Water rights and matters inside the Rio Grande Water Division are governed by Chapter 303 of this title (relating to Operation of the Rio Grande). All other rules promulgated by the commission are also applicable to the water rights subject to this chapter unless in conflict with the provisions of this chapter, in which event the provisions of this chapter will govern.</content><note type="source"><p>Source Note: The provisions of this §304.1 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scA/s304.2"><num value="304.2">§304.2</num><heading>Appointment of Watermaster</heading><content>Under Texas Water Code, Chapter 11, the executive director may appoint one watermaster for each water division, segment of a water division, watermaster program, or the same person may be appointed watermaster for two or more water divisions or segments. In a water division in which the office of watermaster is vacant, the executive director has the powers of a watermaster.</content><note type="source"><p>Source Note: The provisions of this §304.2 adopted to be effective August 5, 1988,13 TexReg 3639; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scA/s304.3"><num value="304.3">§304.3</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise. In addition, the definitions in §297.1 of this title (relating to Definitions) are applicable to this chapter.(1) Account--The record of diversion, transport, and use of state water and watercourses maintained by the watermaster for each purpose of use authorized for each owner's separate portion of a water right, or the record of impoundment and releases for each owner's separate portion of an on-channel reservoir authorized under a water right, except those reservoirs exempted in accordance with Texas Water Code, §11.142. An account will also be established for each separate arrangement by a contractual buyer to purchase state water.(2) Agent--A person that is designated by a water right holder to act on behalf of a water right holder in regard to diversion use, transport, or impoundment of state water in a watercourse, payment of a watermaster assessment, or, for a contractual buyer, in regard to diversion, transport, use, or impoundment of state water.(3) Allocation--The division of available flow between water right holders by the watermaster. This also includes regulation of diversions by water right holders in order to meet demands for exempt domestic and livestock users.(4) Assessment--The cost to be levied by the commission to water right holders to finance watermaster operations.(5) Contractual buyer--A person that impounds, or diverts water under a contractual permit, or under a particular water right under contract with the holder of that water right, where such contract has been accepted for filing by the executive director.(6) Declaration of intent--A statement submitted by a diverter to the watermaster describing an intent under a specific water right or contractual purchase arrangement to divert or transport water in a watercourse, or to make a dedicated release of stored water, for a specified period of time and in association with an authorized facility.(7) Dedicated release--The release of lawfully stored water from a reservoir, under a specific water right, for specific authorized uses downstream.(8) Diversion facility--Any dam, pump, canal, or other such device used to take water, for other than exempt uses, from a watercourse or impoundment.(9) Diverter--Any water right holder, agent, or contractual buyer who impounds, takes, diverts, transports water in a watercourse, or makes a dedicated release of state water.(10) Measuring device--A device designed for the measurement of rates of flow or quantities of water.(11) Report of diversion, transport of water, release, or impoundment--A report that the diverter is required to submit to the watermaster after recording the amount of water actually diverted, transported in a watercourse, or released during the period of a declaration of intent, or a report for the impoundment of water, as well as any additional information required by the watermaster. The watermaster may specify a report period that is different from the declaration of intent period.(12) Return water or return flow--That portion of state water diverted from a water supply and beneficially used and which is not consumed as a consequence of that use and returns to a watercourse. Return flow includes sewage effluent.(13) Salt water diversion--Diversion of state water from the Gulf of Mexico or its bays and arms, or any watercourse or reservoir subject to tidal influence, or when the water right specifies diversion of salt or brackish water; and where, for such cases, the diversion has no significant adverse effect on the supply of water for other authorized diverters, and the diversion does not require protection from junior appropriators.(14) Transport--The discharge, conveyance, and subsequent diversion of water in a watercourse under Texas Water Code, §11.042.(15) Water division--A specific area of the state, designated by the commission under Texas Water Code, §11.325 for the purpose of administering water rights. The term "water division" includes the entire water division and any segments thereof.(16) Watermaster--The person appointed by the executive director under Texas Water Code, Chapter 11, to administer water rights in a given water division, segment of a water division, or group of water divisions.(17) Water right--A right acquired under the laws of the state and the rules of the Texas Commission on Environmental Quality to impound, divert, transport, or use state water. Contractual permits and water contracts are not included under this definition.(18) Water right holder--A person or entity that owns a water right. In the case of divided interests, this term will apply to each separate owner.</content><note type="source"><p>Source Note: The provisions of this §304.3 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c304/scB"><num value="B">SUBCHAPTER B</num><heading>REGULATION OF THE USE OF STATE WATER OR WATERCOURSES</heading><section identifier="/us/state/tx/tac/t30/p1/c304/scB/s304.11"><num value="304.11">§304.11</num><heading>Difference in Operations</heading><content>The executive director may establish different strategies, timetables, procedures, and other requirements for different water divisions or for different portions of a water division.</content><note type="source"><p>Source Note: The provisions of this §304.11 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scB/s304.12"><num value="304.12">§304.12</num><heading>Identification of Diversion Facilities, Outlet Works and Points of Return</heading><content>Each diverter shall advise the watermaster of all diversion facilities, reservoir controlling works, and significant return flow points to be employed in the use of state water or watercourses. This includes borrowed and rented pumps. The watermaster shall assign an identification number for each diversion facility and the controlling works of each reservoir authorized under a water right within the water division. Also, the watermaster may assign an identification number for any point of discharge or other point at which water is returned to a watercourse or reservoir.</content><note type="source"><p>Source Note: The provisions of this §304.12 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scB/s304.13"><num value="304.13">§304.13</num><heading>Requirement for Measuring Devices</heading><content>(a) Each diverter, and each person that makes a significant return flow, shall install and maintain a measuring device at such point or points as may be determined by the watermaster to be necessary for proper and efficient administration of water rights. All such measuring devices are subject to approval of the watermaster. The measuring devices must measure within 5.0% accuracy, unless otherwise approved by the watermaster. The diverter shall provide reasonable access to such measuring device. The diverter, or person that makes a return flow, shall be liable for all expenses incurred in the acquisition, installation, maintenance, and operation of such measuring devices. In the event a measuring device becomes inoperable, the diverter, or person that makes a return flow, at the direction of the watermaster, shall provide an alternate method of measurement, or estimation acceptable to the watermaster.(b) Unless required by a permit, certificate of adjudication, or other water right, the following types of diversions and return flows associated with such diversions shall be exempt from the requirement to install and maintain measuring devices; provided, however, that the watermaster may require any such diverter, or any person making return flows, to provide an alternate method of estimating diversions or return flows acceptable to the watermaster:(1) diversions of water by spreader dams;(2) diversions of water for hydroelectric generation;(3) salt water diversions;(4) diversions of water for direct input from a cooling pond or cooling reservoir into an electric steam power plant for cooling purposes and return flows of such water to a cooling pond;(5) wastewater effluent for which the return flow is being measured and reported in a manner consistent with commission standards relative to wastewater discharge regulations; and(6) any other diversion or return flow of water that the watermaster may deem appropriate.</content><note type="source"><p>Source Note: The provisions of this §304.13 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scB/s304.14"><num value="304.14">§304.14</num><heading>Requirement for Outlets for Passage of Water</heading><content>The owner of any works for the diversion or storage of water shall maintain a substantial headgate at the point of diversion, or a gate on each discharge pipe of a pumping plant, constructed so that it can be located at the proper place by the watermaster, or a suitable outlet in a dam to allow the free passage of water that the owner of the dam is not entitled to divert or impound.</content><note type="source"><p>Source Note: The provisions of this §304.14 adopted to be effective August 5, 1988, 13 TexReg 3639.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scB/s304.15"><num value="304.15">§304.15</num><heading>Declarations of Intent to Divert, Transport, or Release Water</heading><content>(a) Prior to diverting state water, transporting water, or making a dedicated release, a diverter shall submit to the watermaster a declaration expressing the diverter's intent in regard to the anticipated diversion, transport, or release. Such a declaration of intent must be submitted within the time limitations established by the watermaster. Each diverter shall divert or release water only in accordance with the statements in the declaration of intent.(b) Each declaration of intent to divert or transport water must identify the specific account under which water is to be diverted; the amount of water to be diverted or transported; a schedule for the diversions; the diversion facility to be used; and the rate at which water will be diverted. Diversion may only be made using authorized facilities, or at points associated with the water right under which the diversion is to be made. Use of water under an irrigation water right may be only for use on the tract(s) authorized by the water right.(c) Each declaration of intent to make dedicated releases for downstream uses must identify the specific account(s) under which water is to be released; the schedule of releases; the amount of water to be released; the specific account(s) under which the water is to be used; the actual rate at which water will be released; and the identification and location of the user. Dedicated releases will be protected only if the preceding data is provided. Dedicated releases may only be diverted at points authorized by the water right under which the release is made, or an associated approved water contract.(d) In regard to declarations of intent under either subsection (b) or (c) of this section, the watermaster may require any diverter to provide such additional information as may be necessary for the proper and efficient administration of water rights.(e) The watermaster shall establish the duration of time for which declarations of intent will remain in effect and may change the duration as conditions warrant. After the end of the duration of a declaration of intent, no further diversion, transport, or release of state water shall be made under that account until a new declaration of intent has been submitted to the watermaster.(f) A diverter may modify a declaration of intent in regard to the duration, the amount of water to be diverted, the diversion rate, or other specific elements in advance of the desired change.(g) The watermaster from time to time may determine that it is necessary for the proper and efficient administration of water rights that diversions, impoundments of inflows, or releases of dedicated flow in certain areas, or by certain diverters, may not be made without prior approval by the watermaster. Any such determination will be effective for the period designated by the watermaster.(h) Salt water diversions and the recirculation of water at a power plant are exempted from any requirements under this section. The watermaster may also exempt any other facility or water right from any requirement under this section due to extenuating circumstances.</content><note type="source"><p>Source Note: The provisions of this §304.15 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scB/s304.16"><num value="304.16">§304.16</num><heading>Records of Diversions, Transport, Releases, and Impoundments</heading><content>(a) Each diverter that has submitted a declaration of intent shall submit to the watermaster a report including the actual amount of water diverted, transported, or released during the period of the subject declaration of intent. Water right owners with accounts for impoundment will submit reports of daily inflows, reservoir levels, transported volumes, diversions, and releases to the watermaster. The watermaster may specify a report period. The report period may be different from the period of the declaration of intent. The watermaster shall provide forms to be used for the reports. Each diversion or impoundment facility, including borrowed and rented pumps, used during the period of the declaration of intent shall be designated on the report by the identification number assigned by the watermaster. Reports must be complete and signed by the diverter. Reports must be received or postmarked within seven calendar days from the termination of the period of the declaration of intent, or other report period specified by the watermaster. If such report is incomplete or not timely filed, the watermaster may cancel any existing declaration of intent for that account and allow no further impoundment, transport, diversion, or dedicated release until the report is properly filed.(b) To the extent that water was available for diversion during the period of a declaration of intent, the subject account will be charged as follows.(1) If the actual diversion is within 10% of the amount stated in the declaration of intent, the charge will be the actual amount diverted.(2) If the actual diversion is greater than 110% of the amount stated in the declaration of intent, the charge will be the amount actually diverted plus twice the amount greater than 110%.(3) If the actual diversion is less than 90% of the amount stated in the declaration of intent, the charge will be 90% of the stated amount.(4) For a declaration of intent that was modified, including cancellation or extension, the charge will consist of the sum of two parts, one for the period before modification, and one for the period after modification. For each of the two periods, the charge will be determined by applying paragraph (1), (2), or (3) of this subsection relative to the amount declared for the particular period. If a modified declaration of intent is subsequently modified further, resulting in multiple parts, the procedure described in this subsection will be applied to each part.(c) Any amount charged under subsection (b) of this section will apply against the yearly authorization, but only the amount of water actually diverted will apply toward perfection of a water right.(d) The watermaster shall have the discretion to waive the accounting provisions contained in subsections (b) and (c) of this section for excessive or inadequate diversions due to circumstances beyond the control of the diverter.(e) In addition to the report to be submitted to the watermaster under subsection (a) of this section, each water right holder or his agent shall submit to the executive director a written report of the amount of water actually diverted and used during the preceding calendar year under a specific water right in accordance with §295.202 of this title (relating to Reports). This report is required even if no water is used. The form for this report can either be one furnished by the executive director, or be a form approved by the executive director prior to the submission of the report.</content><note type="source"><p>Source Note: The provisions of this §304.16 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c304/scC"><num value="C">SUBCHAPTER C</num><heading>ALLOCATION OF AVAILABLE WATERS</heading><section identifier="/us/state/tx/tac/t30/p1/c304/scC/s304.21"><num value="304.21">§304.21</num><heading>Allocation of Available Waters</heading><content>(a) The allocation of water between water rights holders shall be on the basis of seniority. The watermaster shall allocate waters in such a way as to maximize the beneficial utilization of state water, to minimize the potential impairment of senior water rights by the diversions of junior water rights holders, and to prevent waste or use in excess of quantities to which the holders of water rights are lawfully entitled.(b) The executive director may request suspension of any or all special streamflow or minimum release requirements. Such a request will be considered under §297.57 of this title (relating to Emergency Suspension of Permit Conditions) or §297.61 of this title (relating to Amendments by Executive Director).(c) When available flow is not sufficient to meet the demands of existing declarations of intent for downstream senior rights, demands for domestic and livestock purposes that are not included under any water right, or other minimum streamflow requirements that the commission determines necessary for purposes other than protection of downstream senior and superior water rights, the watermaster may:(1) cancel or modify, as needed, any existing declaration of intent made under §304.15 of this title (relating to Declarations of Intent to Divert, Transport, or Release Water);(2) order that water right holders with reservoir(s) allow inflows to pass through such reservoir(s) to the extent necessary to honor downstream senior water rights, demands for domestic and livestock purposes, minimum streamflow requirements, minimum release requirements, and other conditions;(3) order that persons with reservoirs exempt from permitting under Texas Water Code, §11.142, allow inflows to pass through such reservoirs for the protection of downstream domestic and livestock users;(4) order that diverters limit or cease diversions to the extent necessary to honor downstream senior water rights, demands for domestic and livestock purposes, minimum streamflow requirements, minimum release requirements, and other conditions; or(5) take any other action necessary to ensure that downstream senior water rights, demands for domestic and livestock purposes, minimum streamflow requirements, minimum release requirements, and other conditions, are administered in accordance with the laws of Texas.</content><note type="source"><p>Source Note: The provisions of this §304.21 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective September 13, 2000, 25 TexReg 8972; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c304/scD"><num value="D">SUBCHAPTER D</num><heading>ENFORCEMENT REGARDING WATERMASTER OPERATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c304/scD/s304.31"><num value="304.31">§304.31</num><heading>General</heading><content>The watermaster or executive director may pursue appropriate enforcement action when there is a violation of or failure to comply with the Texas Water Code, the commission's rules, the terms of a water right, authorization, or the orders issued by the commission or watermaster.</content><note type="source"><p>Source Note: The provisions of this §304.31 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scD/s304.32"><num value="304.32">§304.32</num><heading>Violations</heading><content>(a) It is a violation for any person to do the following:(1) divert, transport, use, or make a dedicated release of state water, either personally or through another, without proper authorization under the Texas Water Code or any applicable final judgment rendered by a court of competent jurisdiction, or without submitting to the watermaster a declaration of intent in accordance with §304.15(a) or (g) of this title (relating to Declarations of Intent to Divert, Transport, or Release Water);(2) impound without proper authorization under the Texas Water Code or any applicable final judgment rendered by a court of competent jurisdiction;(3) fail to modify a declaration of intent in advance of a desired change as provided in §304.15(f) of this title;(4) fail to provide a measuring device as required in §304.13 of this title (relating to Requirement for Measurement Devices);(5) fail to provide an outlet as required in §304.14 of this title (relating to Requirement for Outlets for Passage of Water);(6) refuse to allow, or to interfere with, the inspection of any land, natural watercourse, artificial waterway, impoundment, return flow point, or diversion facility by an employee of the commission that would assist the commission in the discharge of its duties;(7) break, tamper with, or mutilate any seal or other device used to enforce orders of the commission, executive director, court, or watermaster; or(8) fail to comply with any statute, rule, or commission or watermaster order.(b) The list of violations in subsection (a) of this section is not exclusive. In addition to other violations of Texas Water Code, Chapter 11, and the commission's rules, a failure to comply with a commission or watermaster order under this section is a violation of Texas Water Code, §11.081.</content><note type="source"><p>Source Note: The provisions of this §304.32 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scD/s304.33"><num value="304.33">§304.33</num><heading>Enforcement Actions</heading><content>When a violation under §304.32 of this title (relating to Violations) occurs, the watermaster or the executive director may seek voluntary compliance, or may pursue appropriate enforcement action. In the absence of voluntary compliance:(1) the watermaster may refuse to recognize a declaration of intent;(2) the watermaster may lock headgates or pumping facilities or take other necessary actions to effectively cease diversion, impoundment, transport, or release of state water under the account associated with the violation; provided, however, that for violations of §304.32(a)(4) or (5) of this title, the diverter will be given at least ten days notice prior to any such action by the watermaster;(3) the executive director may seek a hearing before the commission culminating with the issuance of an appropriate order; if such an order is subsequently violated, the matter may be referred to the attorney general for appropriate action in a court of competent jurisdiction;(4) the executive director may refer the violation to the attorney general for appropriate legal remedy in a court of competent jurisdiction, which may include a penalty assessment to the maximum extent allowed by law;(5) the watermaster may issue a field citation in accordance with §304.34 of this title (relating to Field Citation by Watermaster); or(6) the executive director may seek any other appropriate remedies or action available at law.</content><note type="source"><p>Source Note: The provisions of this §304.33 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective January 4, 1999, 24 TexReg 13101; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scD/s304.34"><num value="304.34">§304.34</num><heading>Field Citation by Watermaster</heading><content>(a) Upon witnessing a violation set forth in subsection (d) of this section, the watermaster or the watermaster's deputy, may issue the alleged violator a field citation. The field citation will allege that a violation has occurred and require that the alleged violator pay the administrative penalty and take remedial action as provided in the citation. (b) The alleged violator may either pay the administrative penalty assessed by the field citation without admitting or denying the alleged violation or request a hearing on the alleged violation. (c) If the alleged violator fails to either pay the administrative penalty or take remedial action under a field citation issued under subsection (a) of this section, the executive director may proceed with enforcement action in accordance with Chapters 70 and 80 of this title (relating to Enforcement and Contested Case Hearings). (d) Violations for which the watermaster may issue a field citation are as follows. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §304.34 adopted to be effective January 4, 1999, 23 TexReg 13101; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c304/scE"><num value="E">SUBCHAPTER E</num><heading>ADMINISTRATION</heading><section identifier="/us/state/tx/tac/t30/p1/c304/scE/s304.41"><num value="304.41">§304.41</num><heading>Emergency Actions</heading><content>The watermaster may take any reasonable action appropriate to alleviate emergencies.</content><note type="source"><p>Source Note: The provisions of this §304.41 adopted to be effective August 5, 1988, 13 TexReg 3639.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scE/s304.42"><num value="304.42">§304.42</num><heading>Reports</heading><content>The watermaster shall submit an annual report to each water right holder who has an account or his agent. A water right holder or agent may apply in writing to the watermaster for correction of any alleged errors in the report. Any such application must be received by the watermaster within 20 business days following the date the report from the watermaster was postmarked.</content><note type="source"><p>Source Note: The provisions of this §304.42 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scE/s304.43"><num value="304.43">§304.43</num><heading>Ownership</heading><content>When a water right is sold or otherwise transferred, the new owner shall promptly inform the executive director of the change of ownership and shall provide the appropriate ownership documents. If a tract of land to which a smaller water right acreage is appurtenant is owned by more than one person in divided interest, the executive director may administratively divide the water right among the owners on a pro rata basis by acreage. If the new ownership record is not complete, the executive director shall inform the alleged owner by letter that ownership documents must be filed within 30 days and approved by the executive director. During a 60-day period following the date of the executive director's letter, the watermaster will honor declarations of intent by the alleged owner in accordance with the water right. After the 60-day period, no declaration of intent will be honored until the executive director notifies the watermaster of the approved change in ownership. Requests for extension for the initial 60-day period must be submitted in writing to the executive director at least five business days prior to the end of the 60-day period. If the extension is granted, the watermaster may honor declarations of intent for the alleged owner; otherwise no declaration of intent from the unverified owner will be honored.</content><note type="source"><p>Source Note: The provisions of this §304.43 adopted to be effective August 5, 1988, 13 TexReg 3639.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scE/s304.44"><num value="304.44">§304.44</num><heading>Appointment of an Agent</heading><content>Any person purporting to act for any water right holder, in regard to diversion, transport, use, or impoundment of state water, or payment of a watermaster assessment, or for a contractual buyer, in regard to diversion, transport, use, or impoundment of state water, shall submit to the watermaster a document signed by such water right holder confirming such authority and specifying the duration of such authority.</content><note type="source"><p>Source Note: The provisions of this §304.44 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c304/scF"><num value="F">SUBCHAPTER F</num><heading>APPEAL OF WATERMASTER ACTIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c304/scF/s304.51"><num value="304.51">§304.51</num><heading>Appeal of Watermaster Actions</heading><content>Any person dissatisfied with any action of the watermaster may apply to the executive director for relief under the Texas Water Code, § 11.326.</content><note type="source"><p>Source Note: The provisions of this §304.51 adopted to be effective August 5, 1988, 13 TexReg 3639.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c304/scG"><num value="G">SUBCHAPTER G</num><heading>FINANCING WATERMASTER OPERATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c304/scG/s304.61"><num value="304.61">§304.61</num><heading>Costs of Administration</heading><content>Under Texas Water Code, §11.329, all holders of water rights that are administered by a watermaster shall reimburse the commission for the expense of watermaster operations. An assessment account shall be established for each water right holder for each water right authorization by category of use. The commission shall not assess costs against a holder of a non-priority hydroelectric right that owns or operates privately-owned facilities that collectively have a capacity of less than two megawatts. The assessment for each assessment account shall be the sum of a uniform base charge and, as applicable for that assessment account, either a use fee or a storage fee, or both. The executive director shall file with the commission a copy of the proposed budget. Following a public meeting, the commission shall issue an order for each water division or group of water divisions, as the commission may determine to be appropriate, approving the assessment income needed for the watermaster operations for the assessment period under consideration. The order shall also specify the base charge per assessment account and the reinstatement fee for delinquent assessment payment.</content><note type="source"><p>Source Note: The provisions of this §304.61 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective February 6, 2002, 27 TexReg 760.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scG/s304.62"><num value="304.62">§304.62</num><heading>Determination of Assessment Rates</heading><content>(a) After a commission order is issued approving the assessment income needed for the watermaster operations for the assessment period under consideration, the executive director shall calculate assessment rates for water use, transport, and storage for each water division, or group of divisions, based on the following formula. Attached Graphic(b) After the assessment rate for municipal use has been determined, the assessment rates for the other uses or for storage must be calculated as the mathematical product of the municipal assessment rate and the rate factor for each use or for storage.</content><note type="source"><p>Source Note: The provisions of this §304.62 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c304/scG/s304.63"><num value="304.63">§304.63</num><heading>Assessment of Cost</heading><content>(a) To determine the amount of assessment for each assessment account, computations will be made by adding together a base charge as specified in the commission order adopted in accordance with §304.61 of this title (relating to Costs of Administration) and, as applicable, either or both of the following:(1) a user fee, which is the mathematical product of the total assessment account and the appropriate assessment rate as determined by §304.62 of this title (relating to Determination of Assessment Rates); provided, however, that if the water right authorizes more than one type of use, and if the maximum amount of water authorized to be used annually for all uses (the maximum total authorization) is less than the sum of the maximum amounts authorized to be used annually for each use (the sum of all authorizations), then, in calculating the fee for each account the number to be used for the authorized amount must be the product of the maximum total authorization and a fraction whose numerator is the amount of water authorized for that use, and whose denominator is the sum of all authorizations; and also provided that the water right holder or the executive director may apply to the commission for, and the commission may grant, an order providing, for assessment purposes only, that different portions of the total amount of water authorized be applied to the various authorized uses; and(2) a storage fee for on-channel storage, which is calculated by multiplying the total amount of water authorized for conservation storage under that assessment account by the storage assessment rate as determined by §304.62 of this title. For any water right authorizing storage and more than one type of use for the same owner, the storage fee for that owner's total storage authorization must be applied to the assessment account for any one of the uses associated with that owner.(b) The assessment must be paid to the executive director in advance of expenditures. The executive director shall specify the dates by which payments will be due, and may provide for payments in installments. Penalties and interest for the late payment of fees will be assessed in accordance with Chapter 12 of this title (relating to Payment of Fees). If fees are paid in installments, penalties and interest for late payment will be computed on the amount of the installment due. The executive director shall transmit all collections to the state treasurer to be held in a special fund to provide for the cost of the watermaster operation.(c) Water may not be diverted, taken, stored, transported, or used by any diverter or agent while any assessment payment is delinquent.(d) Either the water right owner or agent shall pay the assessment, but only one person per assessment account shall be authorized to pay assessments.</content><note type="source"><p>Source Note: The provisions of this §304.63 adopted to be effective August 5, 1988, 13 TexReg 3639; amended to be effective February 14, 1997, 22 TexReg 1325; amended to be effective May 3, 2006, 31 TexReg 3578.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c305"><num value="305">CHAPTER 305</num><heading>CONSOLIDATED PERMITS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scA/s305.1"><num value="305.1">§305.1</num><heading>Scope and Applicability</heading><content>(a) The provisions of this chapter set the standards and requirements for applications, permits, and actions by the commission to carry out the responsibilities for management of waste disposal activities under Texas Water Code, Chapters 26 - 28 and 32, and Texas Health and Safety Code, Chapters 361 and 401.(b) The national pollutant discharge elimination system (NPDES) program, as delegated to the State of Texas, requires permits for the discharge of pollutants from any point source to waters in the state. Such permits are designated as Texas pollutant discharge elimination system (TPDES). The terms "NPDES," "pollutant," "point source," and "waters in the state" are defined in Texas Water Code, §26.001.(1) The following are point sources requiring TPDES permits for discharges:(A) concentrated animal feeding operations as defined in Chapter 321, Subchapter B of this title (relating to Concentrated Animal Feeding Operations);(B) concentrated aquatic animal production facilities as defined in 40 Code of Federal Regulations (CFR) §122.24;(C) discharges into aquaculture projects as set forth in 40 CFR §122.25;(D) discharges from separate storm sewers as set forth in 40 CFR §122.26; and(E) silvicultural point sources as defined in 40 CFR §122.27.(2) The TPDES permit program also applies to owners or operators of any treatment works treating domestic sewage, unless all requirements implementing Clean Water Act (CWA), §405(d), applicable to the treatment works treating domestic sewage are included in a permit issued under the appropriate provisions of Subtitle C, the Federal Solid Waste Disposal Act, the Safe Drinking Water Act, Part C, the Marine Protection, Research, and Sanctuaries Act of 1972, or the Clean Air Act, or under state permit programs approved by the regional administrator as adequate to assure compliance with CWA, §405.(3) The executive director may designate any person subject to the standards for sewage sludge use and disposal as a "treatment works treating domestic sewage" as defined in §305.2 of this title (relating to Definitions), where the executive director finds that a permit is necessary to protect public health and the environment from the adverse effects of sewage sludge or to ensure compliance with the technical standards for sludge use and disposal developed under CWA, §405(d). Any person designated as a treatment works treating domestic sewage shall submit an application for a permit within 120 days of being notified by the executive director that a permit is required. The executive director's decision to designate a person as a treatment works treating domestic sewage shall be stated in the fact sheet or statement of basis for the permit.</content><note type="source"><p>Source Note: The provisions of this §305.1 adopted to be effective June 19, 1986, 11 TexReg 2591; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective September 14, 2000, 25 TexReg 8974; amended to be effective July 5, 2006, 31 TexReg 5333.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scA/s305.2"><num value="305.2">§305.2</num><heading>Definitions</heading><content>The definitions contained in Texas Water Code, §§26.001, 27.002, 28.001, and 32.002, and Texas Health and Safety Code, §§361.003, 401.003, and 401.004, apply to this chapter. The following words and terms, when used in this chapter, have the following meanings.(1) Application--A formal written request for commission action relative to a permit or a post-closure order, either on commission forms or other approved writing, together with all materials and documents submitted to complete the application.(2) Bypass--The intentional diversion of a waste stream from any portion of a treatment facility.(3) Class I sludge management facility--Any publicly owned treatment works identified under 40 Code of Federal Regulations §403.10(a), as being required to have an approved pretreatment program and any other treatment works treating domestic sewage classified as a Class I sludge management facility by the regional administrator in conjunction with the executive director because of the potential for its sludge use or disposal practices to adversely affect public health and the environment.(4) Component--Any constituent part of a unit or any group of constituent parts of a unit which are assembled to perform a specific function (e.g., a pump seal, pump, kiln liner, kiln thermocouple).(5) Continuous discharge--A discharge which occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities.(6) Corrective action management unit (CAMU)--An area within a facility that is designated by the commission under 40 Code of Federal Regulations Part 264, Subpart S, for the purpose of implementing corrective action requirements under §335.167 of this title (relating to Corrective Action for Solid Waste Management Units) and Texas Water Code, §7.031 (relating to Corrective Action Relating to Hazardous Waste). A CAMU shall only be used for the management of remediation wastes while implementing such corrective action requirements at the facility.(7) Daily average concentration--The arithmetic average of all effluent samples, composite, or grab as required by this permit, within a period of one calendar month, consisting of at least four separate representative measurements.(A) Domestic wastewater treatment plants. When four samples are not available in a calendar month, the arithmetic average (weighted by flow) of all values in the previous four consecutive month period consisting of at least four measurements shall be utilized as the daily average concentration.(B) All other wastewater treatment plants. When four samples are not available in a calendar month, the arithmetic average (weighted by flow) of all values taken during the month shall be utilized as the daily average concentration.(8) Daily average flow--The arithmetic average of all determinations of the daily discharge within a period of one calendar month. The daily average flow determination shall consist of determinations made on at least four separate days. If instantaneous measurements are used to determine the daily discharge, the determination shall be the average of all instantaneous measurements taken during a 24-hour period or during the period of daily discharge if less than 24 hours. Daily average flow determination for intermittent discharges shall consist of a minimum of three flow determinations on days of discharge.(9) Direct discharge--The discharge of a pollutant.(10) Discharge monitoring report--The United States Environmental Protection Agency uniform national form, including any subsequent additions, revisions, or modifications for the reporting of self-monitoring results by permittees.(11) Disposal--The discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid, liquid, or hazardous waste into or on any land, or into or adjacent to any water in the state so that such waste or any constituent thereof may enter the environment or be emitted into the air or discharged into or adjacent to any waters, including groundwaters.(12) Disposal facility--A facility or part of a facility at which solid waste is intentionally placed into or on any land or water, and at which waste will remain after closure. The term disposal facility does not include a corrective action management unit into which remediation wastes are placed.(13) Effluent limitation--Any restriction imposed on quantities, discharge rates, and concentrations of pollutants which are discharged from point sources into waters in the state.(14) Facility--Includes:(A) all contiguous land and fixtures, structures, or appurtenances used for storing, processing, treating, or disposing of waste, or for injection activities. A facility may consist of several storage, processing, treatment, disposal, or injection operational units; and(B) for the purpose of implementing corrective action under §335.167 of this title (relating to Corrective Action for Solid Waste Management Units), all contiguous property under the control of the owner and operator seeking a permit for the storage, processing, and/or disposal of hazardous waste. This definition also applies to facilities implementing corrective action under Texas Water Code, §7.031 (relating to Corrective Action Relating to Hazardous Waste).(15) Facility mailing list--The mailing list for a facility maintained by the commission in accordance with 40 Code of Federal Regulations (CFR) §124.10(c)(1)(ix) and §39.407 of this title (relating to Mailing Lists). For Class I injection well underground injection control permits, the mailing list also includes the agencies described in 40 CFR §124.10(c)(1)(viii).(16) Functionally equivalent component--A component which performs the same function or measurement and which meets or exceeds the performance specifications of another component.(17) Indirect discharger--A non-domestic discharger introducing pollutants to a publicly owned treatment works.(18) Injection well permit--A permit issued in accordance with Texas Water Code, Chapter 27.(19) Land disposal facility--Includes landfills, waste piles, surface impoundments, land farms, and injection wells.(20) Licensed professional geoscientist--A geoscientist who maintains a current license through the Texas Board of Professional Geoscientists in accordance with its requirements for professional practice.(21) National Pollutant Discharge Elimination System--The national program for issuing, amending, terminating, monitoring, and enforcing permits, and imposing and enforcing pretreatment requirements, under federal Clean Water Act, §§307, 402, 318, and 405. The term includes an approved program.(22) New discharger--(A) Any building, structure, facility, or installation:(i) from which there is or may be a discharge of pollutants;(ii) that did not commence the discharge of pollutants at a particular site prior to August 13, 1979;(iii) which is not a new source; and(iv) which has never received a finally effective National Pollutant Discharge Elimination System permit for discharges at that site.(B) This definition includes an indirect discharger which commences discharging into water of the United States after August 13, 1979. It also includes any existing mobile point source (other than an offshore or coastal oil and gas exploratory drilling rig or a coastal oil and gas developmental drilling rig) such as a seafood processing rig, seafood processing vessel, or aggregate plant, that begins discharging at a site for which it does not have a permit.(23) New source--Any building structure, facility, or installation from which there is or may be a discharge of pollutants, the construction of which commenced:(A) after promulgation of standards of performance under federal Clean Water Act, §306; or(B) after proposal of standards of performance in accordance with federal Clean Water Act, §306, which are applicable to such source, but only if the standards are promulgated in accordance with federal Clean Water Act, §306 within 120 days of their proposal.(24) Operator--The person responsible for the overall operation of a facility.(25) Outfall--The point or location where waterborne waste is discharged from a sewer system, treatment facility, or disposal system into or adjacent to water in this state.(26) Owner--The person who owns a facility or part of a facility.(27) Permit--A written document issued by the commission which, by its conditions, may authorize the permittee to construct, install, modify, or operate, in accordance with stated limitations, a specified facility for waste discharge, for solid waste storage, processing, or disposal, for radioactive material disposal, or for underground injection, and includes a wastewater discharge permit, a solid waste permit, a radioactive material disposal license, and an injection well permit.(28) Post-closure order--An order issued by the commission for post-closure care of interim status units, a corrective action management unit unless authorized by permit, or alternative corrective action requirements for contamination commingled from Resource Conservation Recovery Act and solid waste management units.(29) Primary industry category--Any industry category listed in 40 Code of Federal Regulations Part 122, Appendix A, adopted by reference by §305.532 of this title (relating to Adoption of Appendices by Reference).(30) Process wastewater--Any water which, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product.(31) Processing--The extraction of materials, transfer or volume reduction, conversion to energy, or other separation and preparation of waste for reuse or disposal, and includes the treatment or neutralization of hazardous waste so as to render such waste nonhazardous, safer for transport, or amenable to recovery, storage, or volume reduction. The meaning of transfer as used here, does not include the conveyance or transport off-site of solid waste by truck, ship, pipeline, or other means.(32) Publicly owned treatment works (POTW)--Any device or system used in the treatment (including recycling and reclamation) of municipal sewage or industrial wastes of a liquid nature which is owned by the state or a municipality. This definition includes sewers, pipes, or other conveyances only if they convey wastewater to a POTW providing treatment.(33) Radioactive material--A naturally occurring or artificially produced solid, liquid, or gas that emits radiation spontaneously.(34) Recommencing discharger--A source which recommences discharge after terminating operations.(35) Regional administrator--Except when used in conjunction with the words "state director," or when referring to United States Environmental Protection Agency (EPA) approval of a state program, where there is a reference in the EPA regulations adopted by reference in this chapter to the "regional administrator" or to the "director," the reference is more properly made, for purposes of state law, to the executive director of the Texas Commission on Environmental Quality, or to the Texas Commission on Environmental Quality, consistent with the organization of the agency as set forth in Texas Water Code, Chapter 5, Subchapter B. When used in conjunction with the words "state director" in such regulations, regional administrator means the regional administrator for the Region VI office of the EPA or his or her authorized representative. A copy of 40 Code of Federal Regulations Part 122, is available for inspection at the library of the Texas Commission on Environmental Quality, located on the first floor of Building A at 12100 Park 35 Circle, Austin, Texas.(36) Remediation waste--All solid and hazardous wastes, and all media (including groundwater, surface water, soils, and sediments) and debris, which contain listed hazardous wastes or which themselves exhibit a hazardous waste characteristic, that are managed for the purpose of implementing corrective action requirements under §335.167 of this title (relating to Corrective Action for Solid Waste Management Units) and Texas Water Code (TWC), §7.031 (relating to Corrective Action Relating to Hazardous Waste). For a given facility, remediation wastes may originate only from within the facility boundary, but may include waste managed in implementing corrective action for releases beyond the facility boundary under TWC, §7.031; §335.166(5) of this title (relating to Corrective Action Program); or §335.167(c) of this title.(37) Schedule of compliance--A schedule of remedial measures included in a permit, including an enforceable sequence of interim requirements (e.g., actions, operations, or milestone events) leading to compliance with the federal Clean Water Act and regulations.(38) Severe property damage--Substantial physical damage to property, damage to treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a discharge. Severe property damage does not mean economic loss caused by delays in production.(39) Sewage sludge--The solids, residues, and precipitate separated from or created in sewage or municipal waste by the unit processes of a treatment works.(40) Site--The land or water area where any facility or activity is physically located or conducted, including adjacent land used in connection with the facility or activity.(41) Solid waste permit--A permit issued under Texas Health and Safety Code, Chapter 361, as amended.(42) Storage--The holding of waste for a temporary period, at the end of which the waste is processed, recycled, disposed of, or stored elsewhere.(43) Texas pollutant discharge elimination system (TPDES)--The state program for issuing, amending, terminating, monitoring, and enforcing permits, and imposing and enforcing pretreatment requirements, under federal Clean Water Act, §§307, 318, 402, and 405; Texas Water Code; and Texas Administrative Code regulations.(44) Toxic pollutant--Any pollutant listed as toxic under federal Clean Water Act, §307(a) or, in the case of sludge use or disposal practices, any pollutant identified in regulations implementing federal Clean Water Act, §405(d).(45) Treatment works treating domestic sewage--A publicly owned treatment works or any other sewage sludge or wastewater treatment devices or systems, regardless of ownership (including federal facilities), used in the storage, treatment, recycling, and reclamation of sewage or municipal waste, including land dedicated for the disposal of sewage sludge. This definition does not include septic tanks or similar devices.(46) Variance--Any mechanism or provision under federal Clean Water Act, §301 or §316, or under Chapter 308 of this title (relating to Criteria and Standards for the National Pollutant Discharge Elimination System) which allows modification to or waiver of the generally applicable effluent limitation requirements or time deadlines of the federal Clean Water Act or this title.(47) Wastewater discharge permit--A permit issued under Texas Water Code, Chapter 26 or under Texas Water Code, Chapters 26 and 32.(48) Wetlands--Those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas and constitute water in the state.</content><note type="source"><p>Source Note: The provisions of this §305.2 adopted to be effective June 19, 1986, 11 TexReg 2591; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective November 23, 1993, 18 TexReg 8215; amended to be effective February 22, 1994, 19 TexReg 941; amended to be effective December 1, 1997, 22 TexReg 11391; amended to be effective August 8, 1999, 24 TexReg 5879; amended to be effective September 14, 2000, 25 TexReg 8974; amended to be effective November 15, 2001, 26 TexReg 9123; amended to be effective January 30, 2003, 28 TexReg 705; amended to be effective September 11, 2003, 28 TexReg 7774; amended to be effective July 5, 2006, 31 TexReg 5333;amended to be effective May 14, 2020, 45 TexReg 3109.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scA/s305.3"><num value="305.3">§305.3</num><heading>Abbreviations</heading><content>The following abbreviations, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) CFR--Code of Federal Regulations.(2) CWA--Clean Water Act.(3) DMR--Discharge monitoring report.(4) EPA--United States Environmental Protection Agency.(5) NPDES--National pollutant discharge elimination system.(6) POTW--Publicly owned treatment works.(7) TPDES--Texas pollutant discharge elimination system.</content><note type="source"><p>Source Note: The provisions of this §305.3 adopted to be effective October 8, 1990, 15 TexReg 5492.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scB"><num value="B">SUBCHAPTER B</num><heading>EMERGENCY ORDERS, TEMPORARY ORDERS, AND EXECUTIVE DIRECTOR AUTHORIZATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scB/s305.21"><num value="305.21">§305.21</num><heading>Emergency Orders and Temporary Orders Authorized</heading><content>The commission or executive director may issue emergency orders, or the commission may issue temporary orders, relating to the discharge of waste or pollutants into or adjacent to any water in the state under Texas Water Code, §5.509, and Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions).</content><note type="source"><p>Source Note: The provisions of this §305.21 adopted to be effective June 19, 1986, 11 TexReg 2591; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective December 10, 1998, 23 TexReg 12440.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scB/s305.29"><num value="305.29">§305.29</num><heading>Emergency Orders for Solid Waste Activities</heading><content>The commission or executive director may issue a mandatory or prohibitory emergency order regarding any activity of solid waste management within its jurisdiction under Texas Water Code, §5.512 and Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions).</content><note type="source"><p>Source Note: The provisions of this §305.29 adopted to be effective June 19, 1986, 11 TexReg 2591; amended to be effective February 11, 1997, 22 TexReg 1168; amended to be effective December 10, 1998, 23 TexReg 12440.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scB/s305.30"><num value="305.30">§305.30</num><heading>Emergency Actions Concerning Hazardous Waste</heading><content>The commission or executive director may issue an emergency administrative order relating to hazardous waste under Texas Water Code, §5.512 and Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions).</content><note type="source"><p>Source Note: The provisions of this §305.30 adopted to be effective December 10, 1998, 23 TexReg 12440.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scB/s305.31"><num value="305.31">§305.31</num><heading>Emergency Orders Relating to Radioactive Substances</heading><content>When an emergency exists as a result of a matter under the commission's jurisdiction that requires immediate action to protect the public health or safety or the environment, the commission or executive director may issue an order under Texas Water Code, §5.516, Texas Health and Safety Code, §401.056, and Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions) stating the existence of the emergency and requiring that actions be taken to meet the emergency.</content><note type="source"><p>Source Note: The provisions of this §305.31 adopted to be effective June 5, 1997, 22 TexReg 4583; amended to be effective December 10, 1998, 23 TexReg 12440.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scC"><num value="C">SUBCHAPTER C</num><heading>APPLICATION FOR PERMIT OR POST-CLOSURE ORDER</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scC/s305.41"><num value="305.41">§305.41</num><heading>Applicability</heading><content>The sections of this subchapter apply to permit applications required to be filed with the commission for authorization under Texas Water Code (TWC), Chapters 26 - 28 and 32, and Texas Health and Safety Code (THSC), Chapters 361 and 401. The sections of this subchapter also apply to post-closure orders issued under the authority of THSC, §361.082 and TWC, §7.031.</content><note type="source"><p>Source Note: The provisions of this §305.41 adopted to be effective June 19, 1986, 11 TexReg 2593; amended to be effective June 5, 1997, 22 TexReg 4583; amended to be effective January 30, 2003, 28 TexReg 705; amended to be effective July 5, 2006, 31 TexReg 5333.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scC/s305.42"><num value="305.42">§305.42</num><heading>Application Required</heading><content>(a) Any person who is required to obtain a permit, or who requests an amendment, modification, or renewal of a permit, or who requests a post-closure order, or who is required to obtain a post-closure order shall complete, sign, and submit an application to the executive director, according to the provisions of this chapter. (b) For applications involving hazardous waste, persons currently authorized to continue hazardous waste management under interim status in compliance with §335.2(c) of this title (relating to Permit Required) and Texas Health and Safety Code (THSC), §361.082(e), shall apply for permits when required by the executive director. Owners or operators shall be allowed at least six months from the date of request to submit a Part B permit application. Owners or operators of existing hazardous waste management facilities may voluntarily submit Part B of the application at any time. However, owners or operators of existing hazardous waste management facilities must submit Part B permit applications in accordance with the dates specified in 40 Code of Federal Regulations (CFR) §270.73. Owners or operators of land disposal facilities in existence on the effective date of statutory or regulatory amendments under THSC, Chapter 361, or the Resource Conservation and Recovery Act of l976, as amended, 42 United States Code, §§6901 et seq., that render the facility subject to the requirement to have a hazardous waste permit must submit a Part B permit application in accordance with the dates specified in 40 CFR §270.73 and certify that such a facility is in compliance with all applicable groundwater monitoring and financial responsibility requirements. (c) An application for a new, amended, or renewed radioactive material license under Chapter 336 of this title (relating to Radioactive Substance Rules) shall consist of one signed original and five copies. The executive director may request additional copies. Copies of an application for a low-level radioactive waste disposal license under Chapter 336, Subchapter H of this title (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste) shall be retained by the applicant for distribution in accordance with written instructions from the executive director. (d) For applications involving hazardous waste management facilities for which the owner or operator has submitted Part A of the permit application and has not yet filed Part B, the owner or operator is subject to the requirements for updating the Part A application under 40 CFR §270.10(g), as amended and adopted in the CFR through June 29, 1995, as published in the Federal Register (60 FR 33911). (e) Applications for hazardous and nonhazardous disposal well permits shall be processed in accordance with this chapter for the benefit of the state and the preservation of its natural resources. (f) For applications involving a standard permit, the procedures for application and issuance are found in Subchapter R of this chapter (relating to Resource Conservation and Recovery Act Standard Permits for Storage and Treatment Units).</content><note type="source"><p>Source Note: The provisions of this §305.42 adopted to be effective June 19, 1986, 11 TexReg 2593; amended to be effective July 14, 1987, 12 TexReg 2102; amended to be effective August 30, 1988, 13 TexReg 4071; amended to be effective October 29, 1990, 15 TexReg 6015; amended to be effective June 5, 1997, 22 TexReg 4583; amended to be effective October 19, 1998, 23 TexReg 10653; amended to be effective September 14, 2000, 25 TexReg 8974; amended to be effective December 16, 2001, 26 TexReg 10102; amended to be effective January 30, 2003, 28 TexReg 705; amended to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scC/s305.43"><num value="305.43">§305.43</num><heading>Who Applies</heading><content>(a) It is the duty of the owner of a facility to submit an application for a permit or a post-closure order. However, if the facility is owned by one person and operated by another and the executive director determines that special circumstances exist where the operator or the operator and the owner should both apply for a permit or a post-closure order, and for all Texas Pollutant Discharge Elimination System permits, it is the duty of the operator and the owner to submit an application for a permit.(b) For industrial solid waste and hazardous waste permit applications, it is the duty of the owner of a facility to submit an application for a permit or a post-closure order, unless a facility is owned by one person and operated by another, in which case it is the duty of the operator to submit an application for a permit or a post-closure order.(c) For municipal solid waste applications, it is the duty of the owner of a facility to submit an application for a permit, amendment, or modification. However, if a facility is owned by one person and operated by another, the owner may authorize, in writing, the operator to submit applications for a permit, amendment, or modification. For a new facility, the operator may submit an application for a permit with the written consent of the owner(s) of the land upon which the facility is to be located.</content><note type="source"><p>Source Note: The provisions of this §305.43 adopted to be effective June 19, 1986, 11 TexReg 2593; amended to be effective July 14, 1987, 12 TexReg 2102; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective January 30, 2003, 28 TexReg 705; amended to be effective May 29, 2008, 33 TexReg 4157.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scC/s305.44"><num value="305.44">§305.44</num><heading>Signatories to Applications</heading><content>(a) All applications shall be signed as follows.(1) For a corporation, the application shall be signed by a responsible corporate officer. For purposes of this paragraph, a responsible corporate officer means a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation; or the manager of one or more manufacturing, production, or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million (in second-quarter 1980 dollars), if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures. Corporate procedures governing authority to sign permit or post-closure order applications may provide for assignment or delegation to applicable corporate positions rather than to specific individuals.(2) For a partnership or sole proprietorship, the application shall be signed by a general partner or the proprietor, respectively.(3) For a municipality, state, federal, or other public agency, the application shall be signed by either a principal executive officer or a ranking elected official. For purposes of this paragraph, a principal executive officer of a federal agency includes the chief executive officer of the agency, or a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., regional administrator of the EPA).(b) A person signing an application shall make the following certification: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."(c) For a hazardous solid waste permit or a post-closure order, the application must be signed by the owner and operator of the facility.(d) For radioactive material license applications under Chapter 336 of this title (relating to Radioactive Substance Rules), the applicant or person duly authorized to act for and on the applicant's behalf must sign the application.</content><note type="source"><p>Source Note: The provisions of this §305.44 adopted to be effective June 19, 1986, 11 TexReg 2591; amended to be effective July 14, 1987, 12 TexReg 2102; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective June 5, 1997, 22 TexReg 4583; amended to be effective January 30, 2003, 28 TexReg 705.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scC/s305.45"><num value="305.45">§305.45</num><heading>Contents of Application for Permit</heading><content>(a) Forms for permit applications will be made available by the executive director. Each application for permit must include the following:(1) the name, mailing address, and location of the facility for which the application is submitted;(2) the ownership status as federal, state, private, public, or other entity;(3) the applicant's name, mailing address, and telephone number;(4) a brief description of the nature of the business;(5) the activities conducted by the applicant which require a permit;(6) a topographic map, ownership map, county highway map, or a map prepared by a Texas licensed professional engineer, Texas licensed professional geoscientist, or a registered surveyor which shows the facility and each of its intake and discharge structures and any other structure or location regarding the regulated facility and associated activities. Maps must be of material suitable for a permanent record, and shall be on sheets 8-1/2 inches by 14 inches or folded to that size, and shall be on a scale of not less than one inch equals one mile. The map shall depict the approximate boundaries of the tract of land owned or to be used by the applicant and shall extend at least one mile beyond the tract boundaries sufficient to show the following:(A) each well, spring, and surface water body or other water in the state within the map area;(B) the general character of the areas adjacent to the facility, including public roads, towns and the nature of development of adjacent lands such as residential, commercial, agricultural, recreational, undeveloped, and so forth;(C) the location of any waste disposal activities conducted on the tract not included in the application;(D) the ownership of tracts of land adjacent to the facility and within a reasonable distance from the proposed point or points of discharge, deposit, injection, or other place of disposal or activity; and(E) such other information that reasonably may be requested by the executive director;(7) a listing of all permits or construction approvals received or applied for under any of the following programs:(A) Hazardous Waste Management Program under the Texas Solid Waste Disposal Act;(B) Underground Injection Control Program under the Texas Injection Well Act;(C) National Pollutant Discharge Elimination System Program under the Clean Water Act and Waste Discharge Program under Texas Water Code, Chapter 26;(D) Prevention of Significant Deterioration Program under the Federal Clean Air Act (FCAA);(E) Nonattainment Program under the FCAA;(F) national emission standards for hazardous air pollutants preconstruction approval under the FCAA;(G) ocean dumping permits under the Marine Protection Research and Sanctuaries Act;(H) dredge or fill permits under the FCAA;(I) licenses under the Texas Radiation Control Act;(J) subsurface area drip dispersal system permits under Texas Water Code, Chapter 32; and(K) other environmental permits; and(8) a supplementary technical report submitted in connection with an application. The report shall be prepared either by a Texas licensed professional engineer, a Texas licensed professional geoscientist, or by a qualified person who is competent and experienced in the field to which the application relates and thoroughly familiar with the operation or project for which the application is made. The report must include the following:(A) a general description of the facilities and systems used for or in connection with the collection, transportation, treatment, and disposal of waste, or used in connection with an injection activity;(B) for each outfall, injection well, place of deposit, or place of disposal:(i) the volume and rate of disposal of the defined waste or of fluid injection, including appropriate averages, the maximum rates of disposal or injection over representative periods of time, and detailed information regarding patterns of disposal or injection; and(ii) the physical, chemical, and radiological properties of the defined waste or the injection fluids; the characteristics of the waste or the injection fluid; the chemical, physical, thermal, organic, bacteriological, or radiological properties or characteristics, as applicable, described in enough detail to allow evaluation of the water and environmental quality considerations involved; and(C) such other information as reasonably may be required by the executive director for an adequate understanding of the project or operation, and which is necessary to provide the commission an adequate opportunity to make the considerations required by §331.121 of this title (relating to Class I Wells), §331.122 of this title (relating to Class III Wells), §305.50 of this title (relating to Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order), §305.48 of this title (relating to Additional Contents for Applications for Wastewater Discharge Permits), §305.54 of this title (relating to Additional Requirements for Radioactive Material Licenses), §336.207 of this title (relating to General Requirements for Issuance of a License), §336.513 of this title (relating to Technical Requirements for Active Disposal Sites), §336.617 of this title (relating to Technical Requirements for Inactive Disposal Sites), §336.705 of this title (relating to Content of Application), and Chapter 330, Subchapter E of this title (relating to Operational Standards for Municipal Solid Waste Storage and Processing Units).(b) Only one application needs to be filed for each geographical location in which waste is or will be disposed of or discharged from, even though there may be more than one outfall, place of deposit, or other place of disposal covered in the application.</content><note type="source"><p>Source Note: The provisions of this §305.45 adopted to be effective June 19, 1986, 11 TexReg 2593; amended to be effective June 13, 1996, 21 TexReg 4999; amended to be effective June 5, 1997, 22 TexReg 4583; amended to be effective September 14, 2000, 25 TexReg 8974; amended to be effective September 11, 2003, 28 TexReg 7774; amended to be effective July 5, 2006, 31 TexReg 5333; amended to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scC/s305.47"><num value="305.47">§305.47</num><heading>Retention of Application Data</heading><content>A permittee or a recipient of a post-closure order shall keep records, throughout the term of the permit or order, of data used to complete the final application and any supplemental information.</content><note type="source"><p>Source Note: The provisions of this §305.47 adopted to be effective June 19, 1986, 11 TexReg 2593; amended to be effective January 30, 2003, 28 TexReg 705.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scC/s305.48"><num value="305.48">§305.48</num><heading>Additional Contents of Applications for Wastewater Discharge Permits</heading><content>(a) The following shall be included in an application for a wastewater discharge permit.(1) The original and one copy of the permit application shall be submitted on forms provided by or approved by the executive director, and shall be accompanied by a like number of copies of all technical supplements and attachments.(2) If the application is for the disposal of any waste into or adjacent to a watercourse, the application shall show the ownership of the tracts of land adjacent to the treatment facility and for a reasonable distance along the watercourse from the proposed point of discharge. The applicant shall list on a map, or in a separate sheet attached to a map, the names and addresses of the owners of such tracts of land as can be determined from the current county tax rolls or other reliable sources. The application shall state the source of the information. This subsection does not apply to:(A) an application to renew a permit; and(B) an application for a new Texas Pollutant Discharge Elimination System (TPDES) permit for a discharge authorized by existing state permit issued before September 14, 1998 for which the application does not propose any term or condition that would constitute a major amendment to the state permit under §305.62 of this title (relating to Amendment).(3) The applicant shall submit any other information reasonably required by the executive director to ascertain whether the facility will be constructed and operated in compliance with all pertinent state and federal statutes, including, but not limited to, the following:(A) the operator's name, address, and telephone number;(B) whether the facility is located on Indian lands;(C) up to four Standard Industrial Classification (SIC) codes and North American Industry Classification System (NAICS) codes which best reflect the principal products or services provided by the facility.(b) The following regulations contained in 40 Code of Federal Regulations, Part 122, which are in effect as of the date of TPDES program authorization, as amended, are incorporated by reference.(1) Subpart B - Permit Applications and Special NPDES Program Requirements, §122.21(g), providing application requirements for existing manufacturing, commercial, mining, and silvicultural dischargers.(2) Subpart B - Permit Applications and Special NPDES Program Requirements, §122.21(h), providing application requirements for manufacturing, commercial, mining, and silvicultural facilities which discharge only nonprocess wastewater, except 40 Code of Federal Regulations §122.21(h)(4)(iii), the requirements of which are addressed in §305.126(e) of this title (relating to Additional Standard Permit Conditions for Waste Discharge Permits).(3) Subpart B - Permit Applications and Special NPDES Program Requirements, §122.21(i), providing application requirements for new and existing concentrated animal feeding operations and aquatic animal production facilities.(4) Subpart B - Permit Applications and Special NPDES Program Requirements, §122.21(r), providing application requirements for new facilities with new or modified cooling water intake structures.(c) In addition to the information required by §305.45 of this title (relating to Contents of Application for Permit), an application by an individual for a waste discharge permit shall contain:(1) the individual's full legal name and date of birth;(2) the street address of the individual's place of residence;(3) the identifying number from the individual's driver's license or personal identification certificate issued by the state or country in which the individual resides;(4) the individual's sex; and(5) any assumed business or professional name of the individual filed under Business and Commerce Code, Chapter 36.</content><note type="source"><p>Source Note: The provisions of this §305.48 adopted to be effective June 19, 1986, 11 TexReg 2593; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective January 7, 1994, 18 TexReg 9936; amended to be effective June 17, 1999, 24 TexReg 4441; amended to be effective April 10, 2003, 28 TexReg 2925.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scC/s305.49"><num value="305.49">§305.49</num><heading>Additional Contents of Application for an Injection Well Permit</heading><content>(a) The following must be included in an application for an injection well permit: (1) for Class I wells, as defined in Chapter 331 of this title (relating to Underground Injection Control), the information listed in §331.121 of this title (relating to Class I Wells); (2) for Class III wells, as defined in Chapter 331 of this title, the information listed in §331.122 of this title (relating to Class III Wells); (3) the manner in which compliance with the financial assurance requirements in Chapter 37 of this title (relating to Financial Assurance) will be attained; (4) the manner in which compliance with the plugging and abandonment requirements of §331.46 of this title (relating to Closure Standards) will be attained; (5) the manner in which compliance with the corrective action requirements of §331.44 of this title (relating to Corrective Action Standards) will be attained; (6) the manner in which compliance with the post-closure requirements of §331.68 of this title (relating to Post-Closure Care) will be attained; (7) for Class I wells, a letter from the Railroad Commission of Texas stating that the drilling of a disposal well and the injection of the waste into the subsurface stratum selected for disposal will not endanger or injure any oil or gas formation; (8) for Class III wells, a description of all liquid and solid nonradioactive wastes resulting from mining activities; (9) a complete delineation by a licensed professional geoscientist or a licensed professional engineer of any aquifer or portion of an aquifer for which exempt status is sought; (10) an application for a new, amended, or renewed Class III injection well area permit for an in situ uranium mine must contain a range table of pre-mining low and high values for each groundwater quality parameter listed in §331.104(b) of this title (relating to Establishment of Baseline and Control Parameters for Excursion Detection). These values shall be established from analysis of independent and representative groundwater samples, collected prior to mining, from: (A) all baseline wells required under §331.104(c) of this title that are within the area of review associated with the existing or proposed permit boundary, as specified at §331.42(a)(4) of this title (relating to Area of Review); and (B) all available wells within the existing or proposed permit boundary, provided the well is completed within the production zone identified in the existing or proposed permit; and (11) any other information reasonably required by the executive director to evaluate the proposed injection well or project, including, but not limited to, the information set forth in Texas Water Code, §27.051(a). (b) An application for production area authorization shall be submitted with and contain the following for each production area: (1) mine plan; (2) a restoration table; (3) a baseline water quality table; (4) control parameter upper limits; (5) monitor well locations; (6) cost estimate for aquifer restoration and well plugging and abandonment; and (7) other information reasonably required by the executive director to evaluate the application. (c) An application under this section shall comply with the requirements of §305.50(a)(4)(B) of this title (relating to Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order).</content><note type="source"><p>Source Note: The provisions of this §305.49 adopted to be effective June 19, 1986, 11 TexReg 2593; amended to be effective January 5, 1988, 12 TexReg 4860; amended to be effective July 5, 1989, 14 TexReg 3046; amended to be effective November 7, 1991, 16 TexReg 6051; amended to be effective March 21, 2000, 25 TexReg 2368; amended to be effective January 30, 2003, 28 TexReg 705; amended to be effective September 11, 2003, 28 TexReg 7774; amended to be effective March 12, 2009, 34 TexReg 1629; amended to be effective December 11, 2014, 39 TexReg 9581.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scC/s305.50"><num value="305.50">§305.50</num><heading>Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order</heading><content>(a) Unless otherwise stated, an application for a permit to store, process, or dispose of solid waste must meet the following requirements.(1) One original and three copies of the permit application shall be submitted on forms provided by or approved by the executive director and shall be accompanied by a like number of originals and copies of all required exhibits.(2) Plans and specifications for the construction and operation of the facility and the staffing pattern for the facility shall be submitted, including the qualifications of all key operating personnel. Also to be submitted is the closing plan for the solid waste storage, processing, or disposal facility. The information provided must be sufficiently detailed and complete to allow the executive director to ascertain whether the facility will be constructed and operated in compliance with all pertinent state and local air, water, public health, and solid waste statutes. Also to be submitted are listings of sites owned, operated, or controlled by the applicant in the State of Texas. For purposes of this section, the terms "permit holder" and "applicant" include each member of a partnership or association and, with respect to a corporation, each officer and the owner or owners of a majority of the corporate stock, provided such partner or owner controls at least 20% of the permit holder or applicant and at least 20% of another business which operates a solid waste management facility.(3) Any other information as the executive director may deem necessary to determine whether the facility and the operation thereof will comply with the requirements of the Texas Solid Waste Disposal Act (TSWDA) and Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), shall be included, including, but not limited to, the information set forth in the TSWDA, §4(e)(13).(4) An application for a permit, permit amendment, or permit modification to store, process, or dispose of hazardous waste is subject to the following requirements, as applicable.(A) In the case of an application for a permit to store, process, or dispose of hazardous waste, the application shall also contain any additional information required by 40 Code of Federal Regulations (CFR) §§270.13 - 270.27 (as amended though July 14, 2006 (71 Federal Register 40254)), except that closure cost estimates shall be prepared in accordance with 40 CFR §264.142(a)(1), (3), and (4), as well as §37.131 of this title (relating to Annual Inflation Adjustments to Closure Cost Estimates), §37.141 of this title (relating to Increase in Current Cost Estimate), and §335.178 of this title (relating to Cost Estimate for Closure).(B) An application for a permit to store, process, or dispose of hazardous waste shall also contain financial information sufficient to demonstrate to the satisfaction of the executive director that the applicant has sufficient financial resources to operate and close the facility in a safe manner in compliance with the permit and all applicable rules as well as how an applicant intends to obtain financing for construction of the facility. Financial information necessary to satisfy this subparagraph shall be as follows:(i) For publicly traded entities:(I) copies of the most recent two Securities and Exchange Commission Form 10-Ks;(II) a copy of the Securities and Exchange Commission Form 10-Q for the most recent quarter;(III) a statement signed by an authorized signatory consistent with §305.44(a) of this title (relating to Signatories to Applications) explaining in detail how the applicant demonstrates sufficient financial resources to construct, safely operate, properly close, and provide adequate liability coverage for the facility. This statement must also address how the applicant intends to comply with the financial assurance requirements for closure, post-closure, corrective action, and liability coverage consistent with Chapter 37, Subchapter P of this title (relating to Financial Assurance for Hazardous and Nonhazardous Industrial Solid Waste Facilities); and(IV) estimates of capital costs for expansion and/or construction if the application encompasses facility expansion, capacity expansion, or new construction; or(ii) For privately held entities with audited financial statements for either of the most recent two fiscal years:(I) complete copies of the audited financial statements for each of the most recent two fiscal years if audits have been performed in each year. If an audit has not been completed for one of the previous two years, a complete copy of the fiscal year end financial statement and federal tax return may be substituted in lieu of the audit not performed. The tax return must be certified by original signature of an authorized signatory as being a "true and correct copy of the return filed with the Internal Revenue Service." Financial statements shall be prepared consistent with generally accepted accounting principles and include a balance sheet, income statement, cash flow statement, notes to the financial statement, and accountant's opinion letter;(II) a complete copy of the most current quarterly financial statement prepared consistent with generally accepted accounting principles;(III) a written statement detailing the information that would normally be found in Securities and Exchange Commission's Form 10-K including descriptions of the business and its operations; identification of any affiliated relationships; credit agreements and terms; any legal proceedings involving the applicant; contingent liabilities; and significant accounting policies;(IV) estimates of capital costs for expansion and/or construction if the application encompasses facility expansion, capacity expansion, or new construction; and(V) a statement signed by an authorized signatory consistent with §305.44(a) of this title explaining in detail how the applicant demonstrates sufficient financial resources to construct, safely operate, properly close, and provide adequate liability coverage for the facility. This statement must also address how the applicant intends to comply with the financial assurance requirements for closure, post-closure, corrective action, and liability coverage in accordance with Chapter 37, Subchapter P of this title; or(iii) For privately held entities without audited financial statements for either of the two most recent fiscal years, or entities choosing not to provide the information provided in clauses (i), (ii), or (iv) of this subparagraph:(I) a financial plan sufficiently detailed to clearly demonstrate that the applicant will be in a position to readily secure financing for construction, operation, and closure if the permit is issued. The submitted financial plan must be accompanied by original letters of opinion from two financial experts, not otherwise employed by the applicant, who have the demonstrated ability to either finance the facility or place the required financing. The opinion letters must certify that the financial plan is reasonable; certify that financing is obtainable within 180 days of final administrative and judicial disposition of the permit application; and include the time schedule contingent upon permit finality for securing the financing. Only one opinion letter from a financial expert, not otherwise employed by the applicant, is required if the letter renders a firm commitment to provide all the necessary financing;(II) a written detail of the annual operating costs of the facility and a projected cash flow statement including the period of construction and first two years of operation. The cash flow statement must demonstrate the financial resources to meet operating costs, debt service, and financial assurance for closure, post-closure care, and liability coverage requirements. A list of the assumptions made to forecast cash flow shall also be provided;(III) a statement addressing how the applicant intends to comply with the financial assurance requirements for closure, post-closure, corrective action, and liability coverage in accordance with Chapter 37, Subchapter P of this title; and(IV) estimates of capital costs for expansion and/or construction if the application encompasses facility expansion, capacity expansion, or new construction; or(iv) For applicants possessing a resolution from a governing body approving or agreeing to approve the issuance of bonds for the purpose of satisfying the financial assurance requirements of this subparagraph:(I) a statement signed by an authorized signatory consistent with §305.44(a) of this title explaining in detail how the applicant demonstrates sufficient financial resources to construct, safely operate, properly close, and provide adequate liability coverage for the facility. This statement must also address how the applicant intends to comply with the financial assurance requirements for closure, post-closure, corrective action, and liability coverage consistent with Chapter 37, Subchapter P of this title;(II) a certified copy of the resolution; and(III) certification by the governing body of passage of the resolution.(C) If any of the information required to be disclosed under subparagraph (B) of this paragraph would be considered confidential under applicable law, the information shall be protected accordingly. During hearings on contested applications, disclosure of confidential information may be allowed only under an appropriate protective order.(D) An application for a modification or amendment of a permit that includes a capacity expansion of an existing hazardous waste management facility must also contain information provided by a Texas licensed professional geoscientist or licensed professional engineer delineating all faults within 3,000 feet of the facility, together with a demonstration, unless previously demonstrated to the commission or the United States Environmental Protection Agency, that:(i) the fault has not experienced displacement within Holocene time, or if faults have experienced displacement within Holocene time, that no such faults pass within 200 feet of the portion of the surface facility where treatment, storage, or disposal of hazardous wastes will be conducted; and(ii) the fault will not result in structural instability of the surface facility or provide for groundwater movement to the extent that there is endangerment to human health or the environment.(E) At any time after the effective date of the requirements contained in Chapter 335, Subchapter F of this title (relating to Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities), the executive director may require the owner or operator of an existing hazardous waste management facility to submit that portion of his application containing the information specified in 40 CFR §§270.14 - 270.27. Any owner or operator shall be allowed a reasonable period of time from the date of the request to submit the information. An application for a new hazardous waste management facility must be submitted at least 180 days before physical construction of the facility is expected to commence.(5) An application for a new hazardous waste landfill which is filed after January 1, 1986, must include an engineering report which evaluates the benefits, if any, associated with the construction of the landfill above existing grade at the proposed site, the costs associated with the above-grade construction, and the potential adverse effects, if any, which would be associated with the above-grade construction.(6) An application for a new hazardous waste landfill, land treatment facility, or surface impoundment that is to be located in the apparent recharge zone of a regional aquifer must include a hydrogeologic report prepared by a Texas licensed professional geoscientist or licensed professional engineer documenting the potential effects, if any, on the regional aquifer in the event of a release from the waste containment system.(7) Engineering plans and specifications submitted as part of the permit application shall be prepared and sealed by a Texas licensed professional engineer who is currently registered as required by the Texas Engineering Practice Act.(8) After August 8, 1985, any Part B permit application submitted by an owner or operator of a facility that stores, processes, or disposes of hazardous waste in a surface impoundment or a landfill must be accompanied by information, reasonably ascertainable by the owner or operator, on the potential for the public to be exposed to hazardous wastes or hazardous constituents through releases related to the unit. By August 8, 1985, owners and operators of a landfill or a surface impoundment who have already submitted a Part B application must submit the exposure information required by this paragraph. At a minimum, such information must address:(A) reasonably foreseeable potential releases from both normal operations and accidents at the unit, including releases associated with transportation to or from the unit;(B) the potential pathways of human exposure to hazardous wastes or constituents resulting from documented releases; and(C) the potential magnitude and nature of the human exposure resulting from such releases.(9) In the case of an application for a permit to store, process, or dispose of hazardous waste at a new hazardous waste management facility, or an application for amendment or modification of a solid waste management facility permit to provide for capacity expansion, the application shall also identify the nature of any known specific and potential sources, types, and volumes of waste to be stored, processed, or disposed of by the facility and shall identify any other related information the executive director may require.(10) In the case of an application for a permit to store, process, or dispose of hazardous waste at a new hazardous waste management facility, the application must also contain the following:(A) copies of any relevant land use plans, adopted in accordance with the Texas Local Government Code, Chapter 211, which were in existence before publication of the notice of intent to file a solid waste permit application or, if no notice of intent is filed, at the time the permit application is filed;(B) identification of the names and locations of industrial and other waste-generating facilities within 1/2 mile of the facility in the case of an application for a permit for a new on-site hazardous waste management facility, and within one mile of the facility in the case of an application for a permit for a new commercial hazardous waste management facility;(C) the approximate quantity of hazardous waste generated or received annually at those facilities described under subparagraph (B) of this paragraph;(D) descriptions of the major routes of travel in the vicinity of the facility to be used for the transportation of hazardous waste to and from the facility, together with a map showing the land-use patterns, covering at least a five-mile radius from the boundaries of the facility; and(E) the information and demonstrations concerning faults described under paragraph (4)(D)of this subsection.(11) In the case of an application for a permit to store, process, or dispose of hazardous waste, the application shall also contain information sufficient to demonstrate to the satisfaction of the commission that a proposed hazardous waste landfill, areal expansion of such landfill, or new commercial hazardous waste land disposal unit is not subject to inundation as a result of a 100-year flood event. An applicant or any other party may not rely solely on floodplain maps prepared by the Federal Emergency Management Agency or a successor agency to determine whether a hazardous waste landfill, areal expansion of such landfill, or commercial hazardous waste land disposal unit is subject to such an inundation.(12) In the case of an application for a permit to store, process, or dispose of hazardous waste at a new commercial hazardous management facility, the application shall also contain the following:(A) information sufficient to demonstrate whether a burden will be imposed on public roadways by vehicles traveling to and from the facility, including, at a minimum:(i) the average gross weight of the various types and sizes of such vehicles to be used for transportation of hazardous waste;(ii) the average number of such vehicles which would travel the public roadways; and(iii) identification of the roads to be used by vehicles traveling to and from the facility within a minimum radius of 2 1/2 miles from the facility. Such identification must include the major highways nearest the facility, even if they are located outside the 2 1/2 mile radius;(B) in addition to the requirements of subparagraph (A) of this paragraph, an applicant may submit a letter from the relevant agency of the state, county, or municipality which has the authority to regulate and maintain roads which states unequivocally that the roads to and from the facility are adequate for the loads to be placed on them by the proposed facility. Such letter will serve as prima facie evidence that the additional loads placed on the roadways caused by the operation of the facility would not constitute a burden and thus would not require that improvements be made to such roadways. Such letter does not, however, obviate the need to submit the information required under subparagraph (A) of this paragraph;(C) evidence sufficient to demonstrate that:(i) emergency response capabilities are available or will be available before the facility first receives waste, in the area in which the facility is located or proposed to be located, that has the ability to manage a reasonable worst-case emergency condition associated with the operation of the facility; such evidence may include, but is not limited to, the following:(I) in addition to the contingency plan required under 40 CFR §270.14(b)(7), provisions specifying procedures and timing of practice facility evacuation drills, where there is a possibility that evacuation of the facility could be necessary;(II) contracts with any private corporation, municipality, or county to provide emergency response;(III) weather data which might tend to affect emergency response;(IV) a definition of worst-case emergencies, e.g., fires, explosions, the Texas Design Hurricane, or the Standard Project Hurricane;(V) a training program for personnel for response to such emergencies;(VI) identification of first-responders;(VII) identification of local or regional emergency medical services and hospitals which have had hazardous materials training;(VIII) a pre-disaster plan, including drills;(IX) a mechanism for notifying all applicable government agencies when an incident occurs (i.e., Texas Commission on Environmental Quality, Texas Parks and Wildlife, General Land Office, Texas Department of State Health Services, and Texas Railroad Commission);(X) a showing of coordination with the local emergency planning committee and any local comprehensive emergency management plan; and(XI) any medical response capability which may be available on the facility property; or(ii) the applicant has secured bonding of sufficient financial assurance to fund the emergency response personnel and equipment determined to be necessary by the executive director to manage a reasonable worst-case emergency condition associated with the facility; such financial assurance may be demonstrated by providing information which may include, but is not limited to, the following:(I) long-term studies using an environmental model which provide the amount of damages for which the facility is responsible; and(II) costs involved in supplying any of the information included in or satisfying any of the requirements of clause (i)(I) - (XI) of this subparagraph;(D) if an applicant does not elect to provide its own facilities or secure bonding to ensure sufficient emergency response capabilities in accordance with §335.183 of this title (relating to Emergency Response Capabilities Required for New Commercial Hazardous Waste Management Facilities), the applicant must provide prior to the time the facility first receives waste:(i) documentation showing agreements with the county and/or municipality in which the facility is located, or documentation showing agreements with an adjoining county, municipality, mutual aid association, or other appropriate entity such as professional organizations regularly doing business in the area of emergency and/or disaster response; or(ii) demonstration that a financial assurance mechanism in the form of a negotiable instrument, such as a letter of credit, fully paid in trust fund, or an insurance policy, with the limitation that the funds can only be used for emergency response personnel and equipment and made payable to and for the benefit of the county government and/or municipal government in the county in which the facility is located or proposed to be located; and(E) a written statement signed by an authorized signatory in accordance with §305.44(a) of this title explaining how the applicant intends to provide emergency response financial assurance to meet the requirements of subparagraph (C) or (D) of this paragraph; and(F) a summary of the applicant's experience in hazardous waste management and in particular the hazardous waste management technology proposed for the application location, and, for any applicant without experience in the particular hazardous waste management technology, a conspicuous statement of that lack of experience.(13) An application for a boiler or industrial furnace burning hazardous waste at a facility at which the owner or operator uses direct transfer operations to feed hazardous waste from transport vehicles (containers, as defined in 40 CFR §266.111) directly to the boiler or industrial furnace shall submit information supporting conformance with the standards for direct transfer provided by 40 CFR §266.111 and §335.225 of this title (relating to Additional Standards for Direct Transfer).(14) The executive director may require a permittee or an applicant to submit information in order to establish permit conditions under §305.127(1)(B)(iii) and (4)(A) of this title (relating to Conditions to be Determined for Individual Permits).(15) If the executive director concludes, based on one or more of the factors listed in subparagraph (A) of this paragraph that compliance with the standards of 40 CFR Part 63, Subpart EEE alone may not be protective of human health or the environment, the executive director shall require the additional information or assessment(s) necessary to determine whether additional controls are necessary to ensure protection of human health and the environment. This includes information necessary to evaluate the potential risk to human health and/or the environment resulting from both direct and indirect exposure pathways. The executive director may also require a permittee or applicant to provide information necessary to determine whether such an assessment(s) should be required. The executive director shall base the evaluation of whether compliance with the standards of 40 CFR Part 63, Subpart EEE alone is protective of human health or the environment on factors relevant to the potential risk from a hazardous waste combustion unit, including, as appropriate, any of the following factors:(A) particular site-specific considerations such as proximity to receptors (such as schools, hospitals, nursing homes, day-care centers, parks, community activity centers, or other potentially sensitive receptors), unique dispersion patterns, etc.;(B) identities and quantities of emissions of persistent, bioaccumulative, or toxic pollutants considering enforceable controls in place to limit those pollutants;(C) identities and quantities of nondioxin products of incomplete combustion most likely to be emitted and to pose significant risk based on known toxicities (confirmation of which should be made through emissions testing);(D) identities and quantities of other off-site sources of pollutants in proximity of the facility that significantly influence interpretation of a facility-specific risk assessment;(E) presence of significant ecological considerations, such as the proximity of a particularly sensitive ecological area;(F) volume and types of wastes, for example wastes containing highly toxic constituents;(G) other on-site sources of hazardous air pollutants that significantly influence interpretation of the risk posed by the operation of the source in question;(H) adequacy of any previously conducted risk assessment, given any subsequent changes in conditions likely to affect risk; and(I) such other factors as may be appropriate.(16) If, as the result of an assessment(s) or other information, the executive director determines that conditions are necessary in addition to those required under 40 CFR Part 63, Subpart EEE, Parts 264 or 266 to ensure protection of human health and the environment, including revising emission limits, he/she shall include those terms and conditions in a Resource Conservation and Recovery Act permit for a hazardous waste combustion unit.(b) An application specifically for a post-closure permit or for a post-closure order for post-closure care must meet the following requirements, as applicable.(1) An application for a post-closure permit or a post-closure order shall contain information required by 40 CFR §270.14(b)(1), (4) - (6), (11), (13), (14), (18), and (19), (c), and (d), and any additional information that the executive director determines is necessary from 40 CFR §§270.14, 270.16 - 270.18, 270.20, or 270.21, except that closure cost estimates shall be prepared in accordance with 40 CFR §264.142(a)(1), (3), and (4), as well as §§37.131, 37.141, 335.127, and 335.178 of this title.(2) An application for a post-closure order shall also contain financial information sufficient to demonstrate to the satisfaction of the executive director that the applicant has sufficient financial resources to operate the facility in a safe manner and in compliance with the post-closure order and all applicable rules. Financial information submitted to satisfy this paragraph shall meet the requirements of Chapter 37, Subchapter P of this title.(3) An application for a post-closure order or for a post-closure permit must also contain any other information as the executive director may deem necessary to determine whether the facility and the operation thereof will comply with the requirements of the TSWDA and Chapter 335 of this title including, but not limited to, the information set forth in TSWDA, §361.109.(4) The executive director may require an applicant for a post-closure order to submit information in order to establish conditions under §305.127(4)(A) of this title.(5) An application for a post-closure order or for a post-closure permit shall also contain the information listed in §305.45(a)(1) of this title (relating to Contents of Application for Permit).(6) All engineering and geoscientific information submitted to the agency shall be prepared by, or under the supervision of, a licensed professional engineer or licensed professional geoscientist, and shall be signed, sealed, and dated by qualified professionals as required by the Texas Engineering Practice Act and the Texas Geosciences Practice Act and the licensing and registration boards under these acts.(7) One original and three copies of an application for a post-closure permit or for a post-closure order shall be submitted on forms provided by, or approved by, the executive director and shall be accompanied by a like number of originals and copies of all required exhibits.</content><note type="source"><p>Source Note: The provisions of this §305.50 adopted to be effective June 19, 1986, 11 TexReg 2593; amended to be effective July 14, 1987, 12 TexReg 2102; amended to be effective January 5, 1988, 12 TexReg 4861; amended to be effective August 4, 1989, 14 TexReg 3531; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective November 7, 1991, 16 TexReg 6051; amended to be effective July 29, 1992, 17 TexReg 5016; amended to be effective November 23, 1993, 18 TexReg 8215; amended to be effective May 11, 1994, 19TexReg 3250; amended to be effective November 20, 1996, 21 TexReg 10982; amended to be effective May 20, 1999, 24 TexReg 3725; amended to be effective March 21, 2000, 25 TexReg 2368; amended to be effective November 18, 2001, 26 TexReg 9130; amended to be effective January 30, 2003, 28 TexReg 705; amended to be effective September 11, 2003, 28 TexReg 7774; amended to be effective October 29, 2009, 34 TexReg 7315; amended to be effective February 21, 2013, 38 TexReg 970.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scC/s305.51"><num value="305.51">§305.51</num><heading>Revision of Applications for Hazardous Waste Permits</heading><content>(a) Owners or operators of hazardous waste management facilities, who qualify for interim status pursuant to 40 Code of Federal Regulation Part 270, Subpart G, who have continuing authority to store, process, and/or dispose of hazardous waste pursuant to Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), and who filed a Part A permit application pursuant to 40 Code of Federal Regulations §270.10 shall file a revised Part A application with the executive director for any of the following changes during interim status:(1) new hazardous wastes not identified in the original application are stored, processed or disposed of at the facility;(2) increases in the design capacity of processes used at the facility occur;(3) changes in the processes for management of the waste occur or additional processes are added;(4) changes in the ownership or operational control of a facility are made; or(5) newly regulated units for the storage, processing, or disposal of hazardous waste are added.(b) The purpose of this section is to delineate requirements for filing a revised application, not to authorize any changes in facility operation. Changes in facility operations will be reviewed and approved by the executive director. In deciding whether to approve the proposed change, the executive director may consider the requirements set forth in 40 Code of Federal Regulations §270.72. For changes in the ownership or operational control of a facility, the new owner or operator shall submit a revised Part A permit application no later than 90 days prior to the scheduled change and shall also comply with the requirements set forth in 40 Code of Federal Regulations §270.72(d). A permit will be required for the operation of an above-grade landfill not described in a Part A application filed pursuant to §335.43 of this title (relating to Permit Required) prior to the effective date of this section.(c) Except as specifically allowed under this subsection, changes listed under subsection (a) of this section may not be made if they amount to reconstruction of the hazardous waste management facility. Reconstruction occurs when the capital investment in the changes to the facility exceeds 50% of the capital cost of a comparable entirely new hazardous waste management facility. If all other requirements are met, the following changes may be made even if they amount to a reconstruction:(1) changes made solely for the purposes of complying with the requirements of 40 Code of Federal Regulations (CFR) §265.193 for tanks and ancillary equipment;(2) if necessary to comply with federal, state, or local requirements, changes to an existing unit, changes solely involving tanks or containers, or addition of replacement surface impoundments that satisfy the standards of §3004(o) of the Resource Conservation and Recovery Act (RCRA), as amended;(3) changes that are necessary to allow owners or operators to continue handling newly listed or identified hazardous wastes that have been stored, processed, or disposed of at the facility prior to the effective date of the United States Environmental Protection Agency (EPA) regulation establishing the new listing or identification;(4) changes during closure of a facility or of a unit within a facility made in accordance with an approved closure plan;(5) changes necessary to comply with an interim status corrective action order issued by the EPA under §3008(h) of the RCRA, as amended, or other federal authority, by an authorized State under comparable state authority, or by a court in a judicial proceeding brought by the EPA or an authorized State, provided that such changes are limited to the storage, processing, or disposal of solid waste from releases that originate within the boundary of the facility;(6) changes to store or process, in tanks, containers, or containment buildings, hazardous wastes subject to land disposal restrictions imposed by 40 CFR, Part 268 or by §3004 of the RCRA, provided that such changes are made solely for the purpose of complying with 40 CFR, Part 268 or §3004 of the RCRA, as amended;(7) addition of newly regulated units under subsection (a)(5) of this section; and(8) changes necessary to comply with standards under 40 CFR Part 63, Subpart EEE--National Emission Standards for Hazardous Air Pollutants From Hazardous Waste Combustors.</content><note type="source"><p>Source Note: The provisions of this §305.51 adopted to be effective June 19, 1986, 11 TexReg 2593; amended to be effective July 14, 1987, 12 TexReg 2102; amended to be effective October 29, 1990, 15 TexReg 6015; amended to be effective July 29, 1992, 17 TexReg 5016; amended to be effective February 26, 1996, 21 TexReg 1137; amended to be effective December 5, 1999, 24 TexReg 10561.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scC/s305.52"><num value="305.52">§305.52</num><heading>Waste Containing Radioactive Materials</heading><content>An application which involves the disposal of a waste containing radioactive materials shall be accompanied by a letter or other instrument in writing from the commission, the Texas Department of Health, or any other appropriate authority stating either that the applicant, or the person delivering the waste containing radioactive materials for disposal by the applicant, has a license from the commission, the Texas Department of Health, or any other appropriate authority governing waste containing radioactive materials; or that the applicant or the person served by the applicant does not need such a license. This section does not apply to applications under Chapter 336 of this title (relating to Radioactive Substance Rules).</content><note type="source"><p>Source Note: The provisions of this §305.52 adopted to be effective June 19, 1986, 11 TexReg 2593; amended to be effective June 5, 1997, 22 TexReg 4583.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scC/s305.53"><num value="305.53">§305.53</num><heading>Application Fee</heading><content>(a) Except for radioactive material licenses or as specifically provided hereunder, an applicant shall include with each application a fee of $100.(1) The permit application fee for each disposal well which will not be authorized to receive hazardous waste is $100. The fee for each disposal well which will be authorized to receive hazardous waste is $2,000.(2) The permit application fee for each solid waste management facility to be used for the storage, processing, or disposal of hazardous waste, the Part B application for which was filed after September 1, 1985, shall be not less than $2,000 and not more than $50,000 as calculated in accordance with the following:(A) site evaluation - $100 per acre of solid waste facility up to 300 acres; no additional fee thereafter;(B) process analysis - $1,000;(C) facility unit(s) analysis - $500 per unit;(D) management/facility analysis - $500.(3) For purposes of paragraph (2)(C) of this subsection, each landfill, surface impoundment, incinerator, waste pile, tank, and container storage area shall be considered a facility unit subject to the $500 per unit fee; except that multiple storage tanks or container storage area identical in type and use will be subject to a single $500-unit fee.(4) The permit application fee for water use permits shall be submitted in accordance with Subchapter B of this chapter (relating to Emergency Orders, Temporary Orders, and Executive Director Authorizations).(5) The permit application fee for mine shaft permits shall be submitted in accordance with §329.9 of this title (relating to Procedures for Application).(6) The permit application fees for wastewater disposal permits shall not be less than $100 and not more than $2,000 as follows.(A) Agricultural permit applications fees are as follows:(i) minor amendments - $100; and(ii) new, amendment, and renewal applications - $300.(B) Domestic wastewater permit application fees are based upon the following flow categories:(i) minor amendments - $100;(ii) new, amendment, and renewal applications less than 50,000 gallons per day - $300;(iii) new, amendment, and renewal applications 50,000 to less than 100,000 gallons per day - $500;(iv) new, amendment, and renewal applications 100,000 to less than 250,000 gallons per day - $800;(v) new, amendment, and renewal applications 250,000 to less than 500,000 gallons per day - $1,200;(vi) new, amendment, and renewal applications 500,000 to less than 1 million gallons per day - $1,600; and(vii) new, amendment, and renewal applications 1 million and greater gallons per day - $2,000.(C) Municipal stormwater permit application fees as follows:(i) minor amendments - $100; and(ii) new, major amendments, and renewal applications - $2,000.(D) Industrial wastewater permit application fees are based upon the United States Environmental Protection Agency (EPA) major/minor designation and the commission assigned toxicity rating as follows:(i) minor amendments for minor facilities - $100;(ii) minor amendments for major facilities - $400;(iii) new, amendment, and renewal applications for minor facilities that are not subject to categorical standards promulgated by EPA (40 Code of Federal Regulations, Part 400) - $300;(iv) new, amendment, and renewal applications for minor facilities that must comply with a categorical standard promulgated by the EPA (40 Code of Federal Regulations, Part 400) - $1,200; and(v) new, amendment, and renewal applications for major facilities - $2,000.(7) The permit application fee for a permit, or a major permit amendment as provided in §305.62(j)(1) of this title (relating to Amendments), for a municipal solid waste landfill is $2,000.(8) The fees established by this section are due at the time that the application is filed in accordance with §281.3 of this title (relating to Initial Review), except that for hazardous waste permit applications filed on or after September 1, 1985, but prior to the effective date of paragraph (2) of this subsection are due at the time that the application is forwarded to the chief clerk of the Texas Commission on Environmental Quality for purposes of issuance of the notice of application. Unless the recommendation of the executive director is that the application be denied, the commission will not consider an application for final decision until such time as the fees in accordance with paragraph (2) of this subsection are paid.(b) An applicant shall also include with each application for a new, amended, or modified permit a fee of $50 to be applied toward the cost of providing required notice. A fee of $15 is required with each application for renewal. This subsection does not apply to radioactive material licenses.(c) Each application for a radioactive material license shall be accompanied by the applicable fee. The fee for a license shall be calculated in accordance with Chapter 336, Subchapter B of this title (relating to Radioactive Substance Fees).</content><note type="source"><p>Source Note: The provisions of this §305.53 adopted to be effective June 19, 1986, 11 TexReg 2593; amended to be effective October 29, 1990, 15 TexReg 6015; amended to be effective March 10, 1994, 19 TexReg 1376; amended to be effective June 5, 1997, 22 TexReg 4583; amended to be effective December 16, 2001, 26 TexReg 10102; amended to be effective January 8, 2004, 29 TexReg 136; amended to be effective October 29, 2020, 45 TexReg 7603.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scC/s305.54"><num value="305.54">§305.54</num><heading>Additional Requirements for Radioactive Material Licenses</heading><content>(a) An applicant may incorporate by reference information contained in previous applications, statements, or reports filed with the executive director. References shall be specifically stated, and shall incorporate accurate, legible, and up-to-date information.(b) If the applicant is a corporation under the Texas Business Corporation Act, written verification (either affidavit or tax receipt) shall be submitted with the application to confirm that no tax owed the state under Chapter 171, Tax Code, is delinquent.(c) An application shall include information on ownership of the land on which the proposed project will be located, ownership of the proposed facilities, buildings, structures, and equipment, and ownership of properties adjacent to the proposed site.(d) An application for a license may include a request for a license authorizing one or more activities provided the application specifies the additional activities for which licenses are requested and complies with commission rules as to applications for those licenses. The commission may require the issuance of separate specific licenses for those activities.(e) The commission or executive director may at any time after the filing of the original application, and before the expiration of the license, require further statements or data to enable the commission to determine whether the application should be granted or denied or whether a license should be amended, renewed, or revoked.(f) Applicants for licenses, other than renewals, shall describe in the application how facility design and procedures for operation will minimize, to the extent practicable, contamination of the facility and the environment, facilitate eventual decommissioning, and minimize the generation of low-level radioactive waste.</content><note type="source"><p>Source Note: The provisions of this §305.54 adopted to be effective June 5, 1997, 22 TexReg 4583; amended to be effective September 3, 1998, 23 TexReg 8837; amended to be effective September 14, 2000, 25 TexReg 8974.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scD"><num value="D">SUBCHAPTER D</num><heading>AMENDMENTS, RENEWALS, TRANSFERS, CORRECTIONS, REVOCATION, AND SUSPENSION OF PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scD/s305.61"><num value="305.61">§305.61</num><heading>Applicability</heading><content>The provisions of this subchapter set forth the standards and requirements for applications and actions concerning amendments, modifications, renewals, transfers, corrections, revocations, and suspensions of permits.</content><note type="source"><p>Source Note: The provisions of this §305.61 adopted to be effective June 19, 1986, 11 TexReg 2594; amended to be effective October 29, 1990, 15 TexReg 6015.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scD/s305.62"><num value="305.62">§305.62</num><heading>Amendments</heading><content>(a) Amendments generally. A change in a term, condition, or provision of a permit requires an amendment, except under §305.70 of this title (relating to Municipal Solid Waste Permit and Registration Modifications), under §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee), under §305.66 of this title (relating to Permit Denial, Suspension, and Revocation), and under §305.64 of this title (relating to Transfer of Permits). The permittee or an affected person may request an amendment. If the permittee requests an amendment, the application shall be processed under Chapter 281 of this title (relating to Applications Processing). If the permittee requests a modification of a solid waste permit, the application shall be processed under §305.69 of this title. If the permittee requests a modification of a municipal solid waste (MSW) permit, the application shall be processed in accordance with §305.70 of this title. If an affected person requests an amendment, the request shall be submitted to the executive director for review. If the executive director determines the request is not justified, the executive director will respond within 60 days of submittal of the request, stating the reasons for that determination. The person requesting an amendment may petition the commission for a review of the request and the executive director's recommendation. If the executive director determines that an amendment is justified, the amendment will be processed under subsections (d) and (f) of this section.(b) Application for amendment. An application for amendment shall include all requested changes to the permit. Information sufficient to review the application shall be submitted in the form and manner and under the procedures specified in Subchapter C of this chapter (relating to Application for Permit or Post-Closure Order). The application shall include a statement describing the reason for the requested changes.(c) Types of amendments, other than amendments for radioactive material licenses in subsection (i) of this section.(1) A major amendment is an amendment that changes a substantive term, provision, requirement, or a limiting parameter of a permit.(2) A minor amendment is an amendment to improve or maintain the permitted quality or method of disposal of waste, or injection of fluid if there is neither a significant increase of the quantity of waste or fluid to be discharged or injected nor a material change in the pattern or place of discharge of injection. A minor amendment includes any other change to a permit issued under this chapter that will not cause or relax a standard or criterion which may result in a potential deterioration of quality of water in the state. A minor amendment may also include, but is not limited to:(A) except for Texas Pollutant Discharge Elimination System (TPDES) permits, changing an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date; and(B) except for TPDES permits, requiring more frequent monitoring or reporting by the permittee.(3) Minor modifications for TPDES permits. The executive director may modify a TPDES permit to make corrections or allowances for changes in the permitted activity listed in this subsection (see also §50.145 of this title (relating to Corrections to Permits)). Notice requirements for a minor modification are in §39.551 of this title (relating to Application for Wastewater Discharge Permit, Including Application for the Disposal of Sewage Sludge or Water Treatment Sludge). Minor modifications to TPDES permits may only:(A) correct typographical errors;(B) require more frequent monitoring or reporting by the permittee;(C) change an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date;(D) change the construction schedule for a discharger which is a new source. No such change shall affect a discharger's obligation to have all pollution control equipment installed and in operation before discharge under §305.534 of this title (relating to New Sources and New Dischargers);(E) delete a point source outfall when the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except within permit limits;(F) when the permit becomes final and effective on or after March 9, 1982, add or change provisions to conform with §§305.125, 305.126, 305.531(1), 305.535(c)(1)(B), and 305.537 of this title (relating to Standard Permit Conditions; Additional Standard Permit Conditions for Waste Discharge Permits; Establishing and Calculating Additional Conditions and Limitations for TPDES Permits; Bypasses from TPDES Permitted Facilities; Minimum Requirements for TPDES Permitted Facilities; and Reporting Requirements for Planned Physical Changes to a Permitted Facility); or(G) incorporate enforceable conditions of a publicly owned treatment works pretreatment program approved under the procedures in 40 Code of Federal Regulations §403.11, as adopted by §315.1 of this title (relating to General Pretreatment Regulations for Existing and New Sources of Pollution).(d) Good cause for amendments. If good cause exists, the executive director may initiate and the commission may order a major amendment, minor amendment, modification, or minor modification to a permit and the executive director may request an updated application if necessary. Good cause includes, but is not limited to:(1) material and substantial changes to the permitted facility or activity which justify permit conditions that are different or absent in the existing permit;(2) information, not available at the time of permit issuance, is received by the executive director, justifying amendment of existing permit conditions;(3) the standards or regulations on which the permit or a permit condition was based have been changed by statute, through promulgation of new or amended standards or regulations, or by judicial decision after the permit was issued;(4) an act of God, strike, flood, material shortage, or other event over which the permittee has no control and for which there is no reasonably available alternative may be determined to constitute good cause for amendment of a compliance schedule;(5) for underground injection wells, a determination that the waste being injected is a hazardous waste as defined under §335.1 of this title (relating to Definitions) either because the definition has been revised, or because a previous determination has been changed; and(6) for Underground Injection Control area permits, any information that cumulative effects on the environment are unacceptable.(e) Amendment of land disposal facility permit. When a permit for a land disposal facility used to manage hazardous waste is reviewed by the commission under §305.127(1)(B)(iii) of this title (relating to Conditions to be Determined for Individual Permits), the commission shall modify the permit as necessary to assure that the facility continues to comply with currently applicable requirements of this chapter and Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste).(f) Amendment initiated by the executive director. If the executive director determines to file a petition to amend a permit, notice of the determination stating the grounds therefor and a copy of a proposed amendment draft shall be personally served on or mailed to the permittee at the last address of record with the commission. This notice should be given at least 15 days before a petition is filed with the commission. However, such notice period shall not be jurisdictional.(g) Amendment initiated permit expiration. The existing permit will remain effective and will not expire until commission action on the application for amendment is final. The commission may extend the term of a permit when taking action on an application for amendment.(h) Amendment application considered a request for renewal. For applications filed under the Texas Water Code, Chapter 26, an application for a major amendment to a permit may also be considered as an application for a renewal of the permit if so requested by the applicant.(i) Types of amendments for radioactive material licenses authorized in Chapter 336 of this title (relating to Radioactive Substance Rules).(1) Major amendments. A major amendment is one which:(A) authorizes a change in the type or concentration limits of wastes to be received;(B) authorizes receipt of wastes determined by the executive director not to be authorized in the existing license;(C) authorizes a change in the licensee, owner or operator of the licensed facility;(D) authorizes closure and the final closure plan for the disposal site;(E) transfers the license to the custodial agency;(F) authorizes enlargement of the licensed area beyond the boundaries of the existing license;(G) authorizes a change of the method specified in the license for disposal of by-product material as defined in the Texas Radiation Control Act, Texas Health and Safety Code, §401.003(3)(B);(H) grants an exemption from any provision of Chapter 336 of this title;(I) authorizes a new technology or new process that requires an engineering review, unless the new technology or new process meets criteria in §305.62(i)(2)(A) of this title;(J) authorizes a reduction in financial assurance unless such a reduction occurs as a result of completed closure activities that have been approved by the appropriate regulatory authority; or(K) authorizes a change which has a potentially significant effect on the human environment and for which the executive director has prepared a written environmental analysis or has determined that an environmental analysis is required;(2) Minor amendments. An application for a minor amendment is subject to public notice requirements of Chapter 39 of this title (relating to Public Notice), but is not subject to an opportunity to request a contested case hearing. A minor amendment is one which:(A) authorizes a modification that is not specifically authorized in an existing condition in a license issued under Chapter 336 of this title and which does not pose a potential detrimental impact on public health and safety, worker safety, or environmental health;(B) authorizes the addition of previously reviewed production or processing equipment, and where an environmental assessment has been completed;(C) authorizes a reduction in financial assurance as a result of completed closure activities that have been approved by the appropriate regulatory authority; or(D) any amendment, after completion of a review, the executive director determines is a minor amendment.(3) Administrative amendments. An application for an administrative amendment is not subject to public notice requirements and is not subject to an opportunity to request a contested case hearing. An administrative amendment is one which:(A) corrects a clerical or typographical error;(B) changes the mailing address or other contact information of the licensee;(C) changes the Radiation Safety Officer, if the person meets the criteria in Chapter 336 of this title;(D) changes the name of an incorporated licensee that amends its articles of incorporation only to reflect a name change, if updated information is provided by the licensee, provided that the Secretary of State can verify that a change in name alone has occurred;(E) is a federally-mandated change to a license;(F) corrects citations in license from rules/statutes;(G) is necessary to address emergencies;(H) authorizes minor modifications to existing facilities, consistent with individual license conditions for a specified facility with demonstrated performance, that enhance public health and safety or protection of the environment;(I) authorizes minor modifications to existing facilities, consistent with individual license conditions for a specified facility with demonstrated performance, to enhance environmental monitoring programs and protection of the environment; or(J) any amendment, after completion of a review, the executive director determines is an administrative amendment.(j) This subsection applies only to major amendments to MSW permits.(1) A full permit application shall be submitted when applying for a major amendment to an MSW permit for the following changes:(A) an increase in the maximum permitted elevation of a landfill;(B) a lateral expansion of an MSW facility other than changes to expand the buffer zone as defined in §330.3 of this title (relating to Definitions). Changes to the facility legal description to increase the buffer zone may be processed as a permit modification requiring public notice under §305.70(k) of this title;(C) any increase in the volumetric waste capacity at a landfill or the daily maximum limit of waste acceptance for a Type V processing facility; and(D) upgrading of a permitted landfill facility to meet the requirements of 40 Code of Federal Regulations Part 258, including facilities which previously have submitted an application to upgrade.(2) For all other major amendment applications for MSW facilities, only the portions of the permit and attachments to which changes are being proposed are required to be submitted. The executive director's review and any hearing or proceeding on a major amendment subject to this paragraph shall be limited to the proposed changes, including information requested under paragraph (3) of this subsection. Examples of changes for which less than a full application may be submitted for a major amendment include:(A) addition of an authorization to accept a new waste stream (e.g., Class 1 industrial waste);(B) changes in waste acceptance and operating hours outside the hours identified in §330.135 of this title (relating to Facility Operating Hours), or authorization to accept waste or operate on a day not previously authorized; and(C) addition of an alternative liner design, in accordance with §330.335 of this title (relating to Alternative Liner Design).(3) The executive director may request any additional information deemed necessary for the review and processing of the application.(k) This subsection applies only to temporary authorizations made to existing MSW permits or registrations.(1) Examples of temporary authorizations include:(A) the use of an alternate daily cover material on a trial basis to properly evaluate cover effectiveness for odor and vector control;(B) temporary changes in operating hours to accommodate special community events or prevent disruption of waste services due to holidays;(C) temporary changes necessary to address disaster situations; and(D) temporary changes necessary to prevent the disruption of solid waste management activities.(2) In order to obtain a temporary authorization, a permittee or registrant shall request a temporary authorization and include in the application a specific description of the activities to be conducted, an explanation of why the authorization is necessary, and how long the authorization is needed.(3) The executive director may approve a temporary authorization for a term of not more than 180 days, and may reissue the temporary authorization once for an additional 180 days, if circumstances warrant the extension.(4) The executive director may provide verbal authorization for activities related to disasters as described in paragraph (1)(C) of this subsection. When verbal authorization is provided, the permittee or registrant shall document both the details of the temporary changes and the verbal approval, and provide the documentation to the executive director within three days of the request.(5) Temporary authorizations for MSW facilities may include actions that would be considered to be either a major or minor change to a permit or registration. Temporary authorizations apply to changes to an MSW facility or its operation that do not reduce the capability of the facility to protect human health and the environment.</content><note type="source"><p>Source Note: The provisions of this §305.62 adopted to be effective June 19, 1986, 11 TexReg 2594; amended to be effective July 14, 1987, 12 TexReg 2102; amended to be effective July 27, 1988, 13 TexReg 3513; amended to be effective July 5, 1989, 14 TexReg 3046; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective October 29, 1990, 15 TexReg 6015; amended to be effective June 13, 1996, 21 TexReg 4999; amended to be effective February 11, 1997, 22 TexReg 1169; amended to be effective June 5, 1997, 22 TexReg 4583; amended to be effective June 17, 1999, 24 TexReg 4441; amended tobe effective September 14, 2000, 25 TexReg 8974; amended to be effective May 29, 2008, 33 TexReg 4157; amended to be effective March 12, 2009, 34 TexReg 1629; amended to be effective December 6, 2018, 43 TexReg 7794; amended to be effective May 14, 2020, 45 TexReg 3109.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scD/s305.63"><num value="305.63">§305.63</num><heading>Renewal</heading><content>(a) Any permit renewal application that is declared administratively complete before September 1, 1999 is subject to this section. The permittee or the executive director may file an application for renewal of a permit. The application shall be filed with the executive director before the permit expiration date. Any permittee with an effective permit shall submit a new application at least 180 days before the expiration date of the effective permit, unless permission for a later date has been granted by the executive director. The executive director shall not grant permission for applications to be submitted later than the expiration date of the existing permit.(1) An application for renewal may be in the same form as that required for the original permit application.(2) An application for renewal shall request continuation of the same requirements and conditions of the expiring permit.(3) If an application for renewal in fact requests a modification of requirements and conditions of the existing permit, an application for amendment or modification shall also be filed before further action is taken. For applications filed under the Texas Water Code, Chapter 26, if an application for renewal in fact requests a modification of requirements and conditions of the existing permit, an application for amendment shall be filed in place of an application for renewal.(4) If renewal procedures have been initiated before the permit expiration date, the existing permit will remain in full force and effect and will not expire until commission action on the application for renewal is final.(5) The commission may deny an application for renewal for the grounds set forth in § 305.66 of this title (relating to Revocation and Suspension).(6) During the renewal process, the executive director may make any changes or additions to permits authorized by § 305.65 of this title (relating to Corrections of Permits), or § 305.62(d) of this title (relating to Amendment) provided the requirements of § 305.62(f) of this title (relating to Amendment) and § 305.96 of this title (relating to Action on Application for Amendment) are satisfied.(7) The executive director may grant permission for permittees of non-publicly owned treatment works to submit the information required by 40 Code of Federal Regulations § 122.21(g)(10) after the permit expiration date.(b) This section does not apply to applications for renewal of radioactive material licenses under Chapter 336 of this title (relating to Radioactive Substance Rules).</content><note type="source"><p>Source Note: The provisions of this §305.63 adopted to be effective June 19, 1986, 11 TexReg 2594; amended to be effective July 14, 1987, 12 TexReg 2102; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective October 29, 1990, 15 TexReg 6015; amended to be effective June 5, 1997, 22 TexReg 4583; amended to be effective September 23, 1999, 24 TexReg 8309.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scD/s305.64"><num value="305.64">§305.64</num><heading>Transfer of Permits</heading><content>(a) A permit is issued in personam and may be transferred only upon approval of the commission. No transfer is required for a corporate name change, as long as the secretary of state can verify that a change in name alone has occurred. An attempted transfer is not effective for any purpose until actually approved by the commission.(b) Except as provided otherwise in subsection (g) of this section, either the transferee or the permittee shall submit to the executive director an application for transfer at least 30 days before the proposed transfer date. The application shall contain the following:(1) the name and address of the transferee;(2) date of proposed transfer;(3) if the permit requires financial responsibility, the method by which the proposed transferee intends to assume or provide financial responsibility, including proof of such financial responsibility to become effective when the transfer becomes effective;(4) a fee of $100 to be applied toward the processing of the application, as provided in §305.53(a) of this title (relating to Application Fee);(5) a sworn statement that the application is made with the full knowledge and consent of the permittee if the transferee is filing the application; and(6) any other information the executive director may reasonably require.(c) If no agreement regarding transfer of permit responsibility and liability is provided, responsibility for compliance with the terms and conditions of the permit and liability for any violation associated therewith is assumed by the transferee, effective on the date of the approved transfer. This section is not intended to relieve a transferor of any liability.(d) The executive director must be satisfied that proof of any required financial responsibility is sufficient before transmitting an application for transfer to the commission for further proceedings.(e) If a person attempting to acquire a permit causes or allows operation of the facility before approval is given, such person shall be considered to be operating without a permit or other authorization.(f) The commission may refuse to approve a transfer where conditions of a judicial decree, compliance agreement, or other enforcement order have not been entirely met. The commission shall also consider the prior compliance record of the transferee, if any.(g) For permits involving hazardous waste under the Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated, Chapter 361 changes in the ownership or operational control of a facility may be made as Class 1 modifications with prior written approval of the executive director in accordance with §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee). The new owner or operator must submit a revised permit application no later than 90 days prior to the scheduled change. A written agreement containing a specific date for transfer of permit responsibility between the current and new permittees must also be submitted to the executive director. When a transfer of ownership or operational control occurs, the old owner or operator shall comply with the requirements of Chapter 37, Subchapter P of this title (relating to Financial Assurance for Hazardous and Nonhazardous Industrial Solid Waste Facilities), until the new owner or operator has demonstrated compliance with the requirements of Chapter 37, Subchapter P of this title. The new owner or operator must demonstrate compliance with the requirements of Chapter 37, Subchapter P of this title within six months of the date of the change of ownership or operational control of the facility. Prior to the executive director issuing the permit modification transferring the permit, the new owner or operator must provide proof of financial assurance in compliance with Chapter 37, Subchapter P of this title. Upon demonstration to the executive director of compliance with Chapter 37 of this title (relating to Financial Assurance), the executive director shall notify the old owner or operator that he no longer needs to comply with Chapter 37, Subchapter P of this title as of the date of demonstration.(h) The commission may transfer permits to an interim permittee pending an ultimate decision on a permit transfer if it finds one or more of the following:(1) the permittee no longer owns the permitted facilities;(2) the permittee is about to abandon or cease operation of the facilities;(3) the permittee has abandoned or ceased operating the facilities; and(4) there exists a need for the continued operation of the facility and the proposed interim permittee is capable of assuming responsibility for compliance with the permit.(i) The commission may transfer a permit involuntarily after notice and an opportunity for hearing, for any of the following reasons:(1) the permittee no longer owns or controls the permitted facilities;(2) if the facilities have not been built, and the permittee no longer has sufficient property rights in the site of the proposed facilities;(3) the permittee has failed or is failing to comply with the terms and conditions of the permit;(4) the permitted facilities have been or are about to be abandoned;(5) the permittee has violated commission rules or orders;(6) the permittee has been or is operating the permitted facilities in a manner which creates an imminent and substantial endangerment to the public health or the environment;(7) foreclosure, insolvency, bankruptcy, or similar proceedings have rendered the permittee unable to construct the permitted facilities or adequately perform its responsibilities in operating the facilities; or(8) transfer of the permit would maintain the quality of water in the state consistent with the public health and enjoyment, the propagation and protection of terrestrial and aquatic life, and the operation of existing industries, taking into consideration the economic development of the state and/or would minimize the damage to the environment; and(9) the transferee has demonstrated the willingness and ability to comply with the permit and all other applicable requirements.(j) The commission may initiate proceedings in accordance with the Texas Water Code, Chapter 13, for the appointment of a receiver consistent with this section.(k) For standard permits, changes in the ownership or operational control of a facility may be made as a Class 1 modification to the standard permit with prior approval from the executive director in accordance with §305.69(k) of this title.</content><note type="source"><p>Source Note: The provisions of this §305.64 adopted to be effective June 19, 1986, 11 TexReg 2594; amended to be effective July 14, 1987, 12 TexReg 2102; amended to be effective July 19, 1989, 14 TexReg 3297; amended to be effective October 29, 1990, 15 TexReg 6015; amended to be effective March 21, 2000, 25 TexReg 2368; amended to be effective September 12, 2002, 27 TexReg 8560; amended to be effective October 29, 2009, 34 TexReg 7315; amended to be effective February 21, 2013, 38 TexReg 970; amended to be effective June 11, 2020, 45 TexReg 3773.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scD/s305.65"><num value="305.65">§305.65</num><heading>Renewal</heading><content>Any permit renewal application that is declared administratively complete on or after September 1, 1999 is subject to this section. The permittee or the executive director may file an application for renewal of a permit. The application shall be filed with the executive director before the permit expiration date. Any permittee with an effective permit shall submit a new application at least 180 days before the expiration date of the effective permit, unless permission for a later date has been granted by the executive director. The executive director shall not grant permission for applications to be submitted later than the expiration date of the existing permit.(1) An application for renewal may be in the same form as that required for the original permit application.(2) An application for renewal shall request continuation of the same requirements and conditions of the expiring permit.(3) If an application for renewal in fact requests a modification of requirements and conditions of the existing permit, an application for amendment or modification shall also be filed before further action is taken. For applications filed under the Texas Water Code, Chapter 26, if an application for renewal in fact requests a modification of requirements and conditions of the existing permit, an application for amendment shall be filed in place of an application for renewal.(4) If renewal procedures have been initiated before the permit expiration date, the existing permit will remain in full force and effect and will not expire until commission action on the application for renewal is final.(5) The commission may deny an application for renewal for the grounds set forth in §305.66 of this title (relating to Permit Denial, Suspension, and Revocation).(6) During the renewal process, the executive director may make any changes or additions to permits authorized by §50.145 of this title (relating to Corrections of Permits), or §305.62(d) of this title (relating to Amendments) provided the requirements of §305.62(f) of this title and Chapter 50, Subchapters F and G of this title (relating to Action by the Commission and Action by the Executive Director) are satisfied.(7) The executive director may grant permission for permittees of non-publicly owned treatment works to submit the information required by 40 Code of Federal Regulations (CFR), §122.21(g)(10) after the permit expiration date.(8) After complying with all applicable rules in Chapters 39, 50 and 55 of this title (relating to Public Notice; Action on Applications and Other Authorizations, and Requests for Reconsideration and Contested Case Hearings; Public Comment), the commission, without providing an opportunity for a contested case hearing, may act on an application to renew a permit for:(A) storage of hazardous waste in containers, tanks, or other closed vessels if the waste:(i) was generated on-site; and(ii) does not include waste generated from other waste transported to the site; or(B) processing of hazardous waste if:(i) the waste was generated on-site;(ii) the waste does not include waste generated from other waste transported to the site; and(iii) the processing does not include thermal processing.(9) If the commission determines that an applicant's compliance history for the preceding five years raises an issue regarding the applicant's ability to comply with a material term of its permit, the commission shall provide an opportunity to request a contested case hearing.(10) An application for a standard permit may be submitted in lieu of a renewal application for those units that qualify for a standard permit. The application must meet the requirements of §305.654 of this title and be submitted at least 180 days before the expiration date of the effective permit, unless the executive director allows a later date in writing. The executive director may not allow submission of applications or notices of intent later than the expiration date of the existing standard permit, except as allowed by 40 CFR §270.51(e)(2). For those units not eligible for a standard permit, a permit renewal application must be submitted.(11) The commission may modify, or alternately, revoke and reissue a permit if the executive director has received notification under §305.654 of this title of a facility owner or operator's intent to be covered by a standard permit.(A) The conditions of an expired permit continue until the effective date of the new permit if all of the following apply:(i) If a timely and complete application under §305.654 of this title requesting coverage under a standard permit has been submitted; and(ii) If the executive director does not issue the standard permit before the previous permit expires.(B) If the executive director determines that an owner or operator is not eligible for a standard permit, the conditions of the expired permit will continue if the owner or operator submits the information required in paragraphs (1) - (3) of this section within 60 days of notification that a standard permit is not allowed.(12) A standard permit shall be renewed pursuant to this section.</content><note type="source"><p>Source Note: The provisions of this §305.65 adopted to be effective September 23, 1999, 24 TexReg 8309; amended to be effective September 14, 2000, 25 TexReg 8974; amended to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scD/s305.66"><num value="305.66">§305.66</num><heading>Permit Denial, Suspension, and Revocation</heading><content>(a) A permit or other order of the commission does not become a vested right and may be suspended or revoked for good cause at any time by order of the commission after opportunity for a public hearing is given. Good cause includes, but is not limited to, the following:(1) the permittee has failed or is failing to comply with the conditions of the permit or a commission order, including failure to construct, during the life of the permit, facilities necessary to conform with the terms and conditions of the permit;(2) the permit or the operations thereunder have been abandoned;(3) the permit or other order is no longer needed by the permittee;(4) the permittee's failure in the application or hearing process to disclose fully all relevant facts, or the permittee's misrepresentation of relevant facts at any time;(5) a determination that the permitted activity endangers human health or safety or the environment to such an extent that permit termination is necessary to prevent further harm;(6) the facility is being operated by a transferee before commission approval of the transfer;(7) for underground injection wells, a determination that the waste being injected is a hazardous waste as defined under §335.1 of this title (relating to Definitions) either because the definition has been revised, or because a previous determination has been changed;(8) for Class III injection wells, failure to achieve satisfactory restoration progress;(9) for radioactive material licenses, any violation of the Texas Radiation Control Act or Chapter 336 of this title (relating to Radioactive Substance Rules), or when conditions are revealed by an application, statement of fact, report, record, inspection, or other means, which would have warranted the commission's refusal to issue a license on an original application; or(10) such other cause sufficient to warrant termination or suspension of the authorization.(11) the executive director has received notification under §305.42 and §305.653 of this title (relating to Application Required; and Applying for a Standard Permit) of a facility owner or operator's intent to be covered by a standard permit.(b) The authority to discharge waste into or adjacent to the water in the state under a waste discharge permit is subject to cancellation or suspension under the Texas Water Code, §26.084.(c) The commission may, for good cause, deny, amend, revoke, or suspend, after notice and hearing according to §305.68 of this title (relating to Action and Notice on Petition for Revocation and Suspension), any permit it issues or has authority to issue for a solid waste storage, processing, or disposal facility, for good cause, for reasons pertaining to public health, air or water pollution, land use, or for violations of the Texas Solid Waste Disposal Act, or any other applicable laws or rules controlling the management of solid waste.(d) When the executive director determines revocation or suspension proceedings are warranted, a petition requesting appropriate action may be filed by the executive director with the commission. A person affected by the issuance of a permit or other order of the commission may initiate proceedings for revocation or suspension by forwarding a petition to the executive director to be filed with the commission.(e) If the executive director or an affected person intends to file a petition to revoke or suspend a permit, notice of the intention and a copy of the petition to be filed shall be personally served on or sent by registered or certified mail to the permittee at the last address of record with the commission. This notice shall be given at least 15 days before a petition for revocation or suspension is submitted to the executive director or filed with the commission for further proceedings. Failure to provide such notice shall not be jurisdictional. For radioactive material licenses issued under Chapter 336 of this title (relating to Radioactive Substance Rules), only the executive director may file a petition to revoke or suspend a license.(f) The commission may deny, suspend for not more than 90 days, or revoke an original or renewal permit if the commission finds after notice and hearing, that:(1) the permit holder has a record of environmental violations in the preceding five years at the permitted site;(2) the applicant has a record of environmental violations in the preceding five years at any site owned, operated, or controlled by the applicant;(3) the permit holder or applicant made a false or misleading statement in connection with an original or renewal application, either in the formal application or in any other written instrument relating to the application submitted to the commission, its officers, or its employees;(4) the permit holder or applicant is indebted to the state for fees, payment of penalties, or taxes imposed by Title 5, Sanitation and Environmental Quality, of the Texas Health and Safety Code (Vernon 1991) or by a rule of the commission;(5) the permit holder or applicant is unable to ensure that the management of the hazardous waste management facility conforms or will conform to this title and the rules of the commission.(g) Before denying, suspending, or revoking a permit under this section, the commission must find:(1) that a violation or violations are significant and that the permit holder or applicant has not made a substantial attempt to correct the violations; or(2) that the permit holder or applicant is indebted to the state for fees, payment of penalties, or taxes imposed by Title 5, Sanitation and Environmental Quality, of the Texas Health and Safety Code (Vernon 1991) or by rule of the commission.(h) The commission may not suspend a new commercial hazardous waste management permit on the basis of a failure of a county or a municipality to accept the funds and make the roadway improvements pursuant to §335.182 of this title (relating to Burden on Public Roadways by a New Commercial Hazardous Waste Management Facility).(i) For applications for new hazardous waste management facility permits, the commission may deny such an application if it determines that the facility is not compatible with local land use pursuant to §335.180 of this title (relating to Impact of New Hazardous Waste Management Facilities on Local Land Use).(j) For applications for new commercial hazardous waste management facility permits, the commission may not deny such an application on the basis of a failure of a county or a municipality to accept the funds and make the roadway improvements pursuant to §335.182 of this title.(k) For applications for any new commercial hazardous waste management facility permits, the commission shall not grant such an application if the applicant is without experience in the particular hazardous waste management technology and has not conspicuously stated that lack of experience in the application, and the commission shall not grant such an application unless the applicant provides a summary of its experience, pursuant to §305.50(12)(D) of this title (relating to Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order). The commission may not deny an application for a new commercial hazardous waste management facility permit solely on the basis of lack of experience of the applicant.(l) For purposes of this section, the terms "permit holder" and "applicant" include each member of a partnership or association and, with respect to a corporation, each officer and the owner or owners of a majority of the corporate stock, provided such partner or owner controls at least 20% of the permit holder or applicant and at least 20% of another business which operates a solid waste management facility.</content><note type="source"><p>Source Note: The provisions of this §305.66 adopted to be effective June 19, 1986, 11 TexReg 2594; amended to be effective July 5, 1989, 14 TexReg 3046; amended to be effective November 7, 1991, 16 TexReg 6051; amended to be effective June 5, 1997, 22 TexReg 4583; amended to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scD/s305.67"><num value="305.67">§305.67</num><heading>Revocation and Suspension upon Request or Consent</heading><content>(a) If a permittee no longer desires to continue a waste disposal activity or to dispose of waste under a permit, or is agreeable to a suspension of authorization to do so for a specified period of time, the permittee should file with the executive director a written request, or a written consent and waiver not later than 10 days following receipt of notice of the intention to file a petition under §305.66 of this title (relating to Revocation and Suspension).(b) If a permittee requests or consents to the revocation or suspension of the permit, the executive director may revoke or suspend the permit without the necessity of a public hearing or commission action. The executive director shall notify the commission of each such revocation or suspension.(c) Upon request of the applicant, the executive director may terminate a radioactive material license in accordance with this section, if the licensee has complied with the applicable decommissioning requirements under Chapter 336 of this title (relating to Radioactive Substance Rules).(d) Expedited permit termination.(1) The executive director may terminate a permit by notice to the permittee if:(A) the entire discharge is permanently terminated by elimination of the flow or connection to a POTW (but not by land application or disposal into a well);(B) the permittee is not subject to any pending state or federal enforcement actions including citizen suits brought under state or federal law; and(C) the permittee does not object within 30 days after notice is sent.(2) Termination by notice is effective 30 days after notice is sent, unless the permittee objects at that time, in which case the executive director may not proceed under this subsection and may proceed under §305.66 of this title (relating to Permit Denial, Suspension, and Revocation) or §305.68 of this title (relating to Action and Notice on Petition for Revocation or Suspension).(3) If requesting expedited permit termination procedures, the permittee must certify that it is not subject to any pending state or federal enforcement actions including citizen suits brought under state or federal law.</content><note type="source"><p>Source Note: The provisions of this §305.67 adopted to be effective June 19, 1986, 11 TexReg 2594; amended to be effective September 14, 2000, 25 TexReg 8974; amended to be effective August 15, 2002, 27 TexReg 7163.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scD/s305.68"><num value="305.68">§305.68</num><heading>Action and Notice on Petition for Revocation or Suspension</heading><content>(a) In the absence of a request filed by the permittee or of sufficient consent and waiver, the commission shall conduct a public hearing on a petition to revoke or suspend a permit or other order of the commission, notice of which shall be given to the permittee not less than 30 days prior to the hearing by certified mail, return receipt requested, of the time and place of the hearing. For permits or orders involving hazardous waste under the Texas Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7, public notice shall be given by publication, by mail and by radio broadcast, in accordance with §§ 305.102-305.104 of this title (relating to Notice by Publication; Notice by Mail; and Radio Broadcasts).(b) If the permittee requests or consents to the revocation or suspension of the permit and the executive director has not revoked or suspended the permit, the commission may take action at a regular meeting of the commission without holding a public hearing, provided notice of the hearing is given by first-class mail at least 10 days prior to the meeting. For permits involving hazardous waste under the Texas Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7, notice of the hearing shall be given by first-class mail at least 30 days prior to the meeting.</content><note type="source"><p>Source Note: The provisions of this §305.68 adopted to be effective June 19, 1986, 11 TexReg 2594; amended to be effective July 14, 1987, 12 TexReg 2102.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scD/s305.69"><num value="305.69">§305.69</num><heading>Solid Waste Permit Modification at the Request of the Permittee</heading><content>(a) Applicability. This section applies only to modifications to industrial and hazardous solid waste permits. Modifications to municipal solid waste permits are covered in §305.70 of this title (relating to Municipal Solid Waste Permit and Registration Modifications). (b) Class I modifications of solid waste permits. (1) Except as provided in paragraph (2) of this subsection, the permittee may put into effect Class 1 modifications listed in Appendix I of subsection (k) of this section under the following conditions: (A) the permittee must notify the executive director concerning the modification by certified mail or other means that establish proof of delivery within seven calendar days after the change is put into effect. This notification must specify the changes being made to permit conditions or supporting documents referenced by the permit and must explain why they are necessary. Along with the notification, the permittee must provide the applicable information in the form and manner specified in §1.5(d) of this title (relating to Records of the Agency), §§305.41 - 305.45 and 305.47 - 305.53 of this title (relating to Applicability; Application Required; Who Applies; Signatories to Applications; Contents of Application for Permit; Retention of Application Data; Additional Contents of Applications for Wastewater Discharge Permits; Additional Contents of Application for an Injection Well Permit; Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order; Revision of Applications for Hazardous Waste Permits; Waste Containing Radioactive Materials; and Application Fee), Subchapter I of this chapter (relating to Hazardous Waste Incinerator Permits), and Subchapter J of this chapter (relating to Permits for Land Treatment Demonstrations Using Field Tests or Laboratory Analyses); (B) the permittee must send notice of the modification request by first-class mail to all persons listed in §39.413 of this title (relating to Mailed Notice). This notification must be made within 90 calendar days after the change is put into effect. For the Class 1 modifications that require prior executive director approval, the notification must be made within 90 calendar days after the executive director approves the request; and (C) any person may request the executive director to review, and the executive director may for cause reject, any Class 1 modification. The executive director must inform the permittee by certified mail that a Class 1 modification has been rejected, explaining the reasons for the rejection. If a Class 1 modification has been rejected, the permittee must comply with the original permit conditions. (2) Class 1 permit modifications identified in Appendix I of subsection (k) of this section by a superscript 1 may be made only with the prior written approval of the executive director. (3) For a Class 1 permit modification, the permittee may elect to follow the procedures in subsection (c) of this section for Class 2 modifications instead of the Class 1 procedures. The permittee must inform the executive director of this decision in the notification required in subsection (c)(1) of this section. (c) Class 2 modifications of solid waste permits. (1) For Class 2 modifications, which are listed in Appendix I of subsection (k) of this section, the permittee must submit a modification request to the executive director that: (A) describes the exact change to be made to the permit conditions and supporting documents referenced by the permit; (B) identifies the modification as a Class 2 modification; (C) explains why the modification is needed; and (D) provides the applicable information in the form and manner specified in §1.5(d) of this title and §§305.41 - 305.45 and 305.47 - 305.53 of this title; (2) The permittee must send a notice of the modification request by first-class mail to all persons listed in §39.413 of this title and must cause this notice to be published in a major local newspaper of general circulation. This notice must be mailed and published within seven days before or after the date of submission of the modification request, and the permittee must provide to the executive director evidence of the mailing and publication. The notice must include: (A) announcement of a 60-day comment period, in accordance with paragraph (5) of this subsection, and the name and address of an agency contact to whom comments must be sent; (B) announcement of the date, time, and place for a public meeting to be held in accordance with paragraph (4) of this subsection; (C) name and telephone number of the permittee's contact person; (D) name and telephone number of an agency contact person; (E) location where copies of the modification request and any supporting documents can be viewed and copied; and (F) the following statement: "The permittee's compliance history during the life of the permit being modified is available from the agency contact person." (3) The permittee must place a copy of the permit modification request and supporting documents in a location accessible to the public in the vicinity of the permitted facility. (4) The permittee must hold a public meeting no earlier than 15 days after the publication of the notice required in paragraph (2) of this subsection and no later than 15 days before the close of the 60-day comment period. The meeting must be held to the extent practicable in the vicinity of the permitted facility. (5) The public shall be provided at least 60 days to comment on the modification request. The comment period will begin on the date the permittee publishes the notice in the local newspaper. Comments should be submitted to the agency contact identified in the public notice. (6) No later than 90 days after receipt of the modification request, subparagraphs (A), (B), (C), (D), or (E) of this paragraph must be met, subject to §50.133 of this title (relating to Executive Director Action on Application), as follows: (A) the executive director or the commission must approve the modification request, with or without changes, and modify the permit accordingly; (B) the commission must deny the request; (C) the commission or the executive director must determine that the modification request must follow the procedures in subsection (d) of this section for Class 3 modifications for either of the following reasons: (i) there is significant public concern about the proposed modification; or (ii) the complex nature of the change requires the more extensive procedures of a Class 3 modification; or (D) the commission must approve the modification request, with or without changes, as a temporary authorization having a term of up to 180 days, in accordance with the following public notice requirements: (i) notice of a hearing on the temporary authorization shall be given not later than the 20th day before the hearing on the authorization; and (ii) this notice of hearing shall provide that an affected person may request an evidentiary hearing on issuance of the temporary authorization; or (E) the executive director must notify the permittee that the executive director or the commission will decide on the request within the next 30 days. (7) If the executive director notifies the permittee of a 30-day extension for a decision, then no later than 120 days after receipt of the modification request, subparagraphs (A), (B), (C), or (D) of this paragraph must be met, subject to §50.133 of this title, as follows: (A) the executive director or the commission must approve the modification request, with or without changes, and modify the permit accordingly; (B) the commission must deny the request; (C) the commission or the executive director must determine that the modification request must follow the procedures in subsection (d) of this section for Class 3 modifications for either of the following reasons: (i) there is significant public concern about the proposed modification; or (ii) the complex nature of the change requires the more extensive procedures of a Class 3 modification; or (D) the commission must approve the modification request, with or without changes, as a temporary authorization having a term of up to 180 days, in accordance with the following public notice requirements: (i) notice of a hearing on the temporary authorization shall be given not later than the 20th day before the hearing on the authorization; and (ii) this notice of hearing shall provide that an affected person may request an evidentiary hearing on issuance of the temporary authorization. (8) If the executive director or the commission fails to make one of the decisions specified in paragraph (7) of this subsection by the 120th day after receipt of the modification request, the permittee is automatically authorized to conduct the activities described in the modification request for up to 180 days, without formal agency action. The authorized activities must be conducted as described in the permit modification request and must be in compliance with all appropriate standards of Chapter 335, Subchapter E of this title (relating to Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities). If the commission approves, with or without changes, or denies any modification request during the term of the temporary authorization issued pursuant to paragraph (6) or (7) of this subsection, such action cancels the temporary authorization. The commission is the sole authority for approving or denying the modification request during the term of the temporary authorization. If the executive director or the commission approves, with or without changes, or if the commission denies the modification request during the term of the automatic authorization provided for in this paragraph, such action cancels the automatic authorization. (9) In the case of an automatic authorization under paragraph (8) of this subsection, or a temporary authorization under paragraph (6)(D) or (7)(D) of this subsection, if the executive director or the commission has not made a final approval or denial of the modification request by the date 50 days prior to the end of the temporary or automatic authorization, the permittee must within seven days of that time send a notification to all persons listed in §39.413 of this title, and make a reasonable effort to notify other persons who submitted written comments on the modification request, that: (A) the permittee has been authorized temporarily to conduct the activities described in the permit modification request; and (B) unless the executive director or the commission acts to give final approval or denial of the request by the end of the authorization period, the permittee will receive authorization to conduct such activities for the life of the permit. (10) If the owner/operator fails to notify the public by the date specified in paragraph (9) of this subsection, the effective date of the permanent authorization will be deferred until 50 days after the owner/operator notifies the public. (11) Except as provided in paragraph (13) of this subsection, if the executive director or the commission does not finally approve or deny a modification request before the end of the automatic or temporary authorization period or reclassify the modification as Class 3 modification, the permittee is authorized to conduct the activities described in the permit modification request for the life of the permit unless amended or modified later under §305.62 of this title (relating to Amendments) or this section. The activities authorized under this paragraph must be conducted as described in the permit modification request and must be in compliance with all appropriate standards of Chapter 335, Subchapter E of this title. (12) In the processing of each Class 2 modification request which is subsequently approved or denied by the executive director or the commission in accordance with paragraph (6) or (7) of this subsection, or each Class 2 modification request for which a temporary authorization is issued in accordance with subsection (f) of this section or a reclassification to a Class 3 modification is made in accordance with paragraph (6)(C) or (7)(C) of this subsection, the executive director must consider all written comments submitted to the agency during the public comment period and must respond in writing to all significant comments. (13) With the written consent of the permittee, the executive director may extend indefinitely or for a specified period the time periods for final approval or denial of a Class 2 modification request or for reclassifying a modification as Class 3. (14) The commission or the executive director may change the terms of, and the commission may deny a Class 2 permit modification request under paragraphs (6) - (8) of this subsection for any of the following reasons: (A) the modification request is incomplete; (B) the requested modification does not comply with the appropriate requirements of Chapter 335, Subchapter F of this title (relating to Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities) or other applicable requirements; or(C) the conditions of the modification fail to protect human health and the environment. (15) The permittee may perform any construction associated with a Class 2 permit modification request beginning 60 days after the submission of the request unless the executive director establishes a later date for commencing construction and informs the permittee in writing before the 60th day. (d) Class 3 modifications of solid waste permits. (1) For Class 3 modifications listed in Appendix I of subsection (k) of this section, the permittee must submit a modification request to the executive director that: (A) describes the exact change to be made to the permit conditions and supporting documents referenced by the permit; (B) identifies that the modification is a Class 3 modification; (C) explains why the modification is needed; and (D) provides the applicable information in the form and manner specified in §1.5(d) of this title and §§305.41 - 305.45 and 305.47 - 305.53 of this title; and Subchapter Q of this chapter (relating to Permits for Boilers and Industrial Furnaces Burning Hazardous Waste). (2) The permittee must send a notice of the modification request by first-class mail to all persons listed in §39.413 of this title and must cause this notice to be published in a major local newspaper of general circulation. This notice must be mailed and published within seven days before or after the date of submission of the modification request and evidence of the mailing and publication of the notice shall be provided to the executive director. The notice shall include the following: (A) all information required by §39.411 of this title (relating to Text of Public Notice); (B) announcement of a 60-day comment period, and the name and address of an agency contact person to whom comments must be sent; (C) announcement of the date, time, and place for a public meeting on the modification request, to be held in accordance with paragraph (4) of this subsection; (D) name and telephone number of the permittee's contact person; (E) name and telephone number of an agency contact person; (F) identification of the location where copies of the modification request and any supporting documents can be viewed and copied; and (G) the following statement: "The permittee's compliance history during the life of the permit being modified is available from the agency contact person." (3) The permittee must place a copy of the permit modification request and supporting documents in a location accessible to the public in the vicinity of the permitted facility. (4) The permittee must hold a public meeting no earlier than 15 days after the publication of the notice required in paragraph (2) of this subsection and no later than 15 days before the close of the 60-day comment period. The meeting must be held to the extent practicable in the vicinity of the permitted facility. (5) The public shall be provided at least 60 days to comment on the modification request. The comment period will begin on the date the permittee publishes the notice in the local newspaper. Comments should be submitted to the agency contact person identified in the public notice. (6) After the conclusion of the 60-day comment period, the permit modification request shall be granted or denied in accordance with the applicable requirements of Chapter 39 of this title (relating to Public Notice), Chapter 50 of this title (relating to Action on Applications and Other Authorizations), and Chapter 55 of this title (relating to Requests for Reconsideration and Contested Case Hearings; Public Comment). When a permit is modified, only the conditions subject to modification are reopened. (7) Except as otherwise required by Chapter 39 of this title, the notice requirements in this section do not apply to Class 3 modification applications for industrial or hazardous waste facility permits that are declared administratively complete on or after September 1, 1999. (e) Other modifications. (1) In the case of modifications not explicitly listed in Appendix I of subsection (k) of this section, the permittee may submit a Class 3 modification request to the agency, or the permittee may request a determination by the executive director that the modification should be reviewed and approved as a Class 1 or Class 2 modification. If the permittee requests that the modification be classified as a Class 1 or Class 2 modification, the permittee must provide the agency with the necessary information to support the requested classification. (2) The executive director shall make the determination described in paragraph (1) of this subsection as promptly as practicable. In determining the appropriate class for a specific modification, the executive director shall consider the similarity of the modification to other modifications codified in Appendix I of subsection (k) of this section and the following criteria. (A) Class 1 modifications apply to minor changes that keep the permit current with routine changes to the facility or its operation. These changes do not substantially alter the permit conditions or reduce the capacity of the facility to protect human health or the environment. In the case of Class 1 modifications, the executive director may require prior approval; (B) Class 2 modifications apply to changes that are necessary to enable a permittee to respond, in a timely manner, to: (i) common variations in the types and quantities of the wastes managed under the facility permit; (ii) technological advancements; and (iii) changes necessary to comply with new regulations, where these changes can be implemented without substantially changing design specifications or management practices in the permit; and (C) Class 3 modifications reflect a substantial alteration of the facility or its operations. (f) Temporary authorizations. (1) Upon request of the permittee, the commission may grant the permittee a temporary authorization having a term of up to 180 days, in accordance with this subsection, and in accordance with the following public notice requirements: (A) notice of a hearing on the temporary authorization shall be given not later than the 20th day before the hearing on the authorization; and (B) this notice of hearing shall provide that an affected person may request an evidentiary hearing on issuance of the temporary authorization. (2) The permittee may request a temporary authorization for: (A) any Class 2 modification meeting the criteria in paragraph (5)(B) of this subsection; and (B) any Class 3 modification that meets the criteria in paragraph (5)(B)(i) or (ii) of this subsection, or that meets any of the criteria in paragraph (5)(B)(iii) - (v) of this subsection and provides improved management or treatment of a hazardous waste already listed in the facility permit. (3) The temporary authorization request must include: (A) a specific description of the activities to be conducted under the temporary authorization; (B) an explanation of why the temporary authorization is necessary and reasonably unavoidable; and (C) sufficient information to ensure compliance with the applicable standards of Chapter 335, Subchapter F of this title and 40 Code of Federal Regulations (CFR) Part 264. (4) The permittee must send a notice about the temporary authorization request by first-class mail to all persons listed in §39.413 of this title. This notification must be made within seven days of submission of the authorization request. (5) The commission shall approve or deny the temporary authorization as quickly as practicable. To issue a temporary authorization, the commission must find: (A) the authorized activities are in compliance with the applicable standards of Chapter 335, Subchapter F of this title and 40 CFR Part 264; and (B) the temporary authorization is necessary to achieve one of the following objectives before action is likely to be taken on a modification request: (i) to facilitate timely implementation of closure or corrective action activities; (ii) to allow treatment or storage in tanks, containers, or containment buildings, of restricted wastes in accordance with Chapter 335, Subchapter O of this title (relating to Land Disposal Restrictions), 40 CFR Part 268, or Section 3004 of the Resource Conservation and Recovery Act (RCRA), 42 United States Code, §6924; (iii) to prevent disruption of ongoing waste management activities; (iv) to enable the permittee to respond to sudden changes in the types or quantities of the wastes managed under the facility permit; or (v) to facilitate other changes to protect human health and the environment. (6) A temporary authorization may be reissued for one additional term of up to 180 days provided that the permittee has requested a Class 2 or 3 permit modification for the activity covered in the temporary authorization, and: (A) the reissued temporary authorization constitutes the commission's decision on a Class 2 permit modification in accordance with subsection (c)(6)(D) or (7)(D) of this section; or (B) the commission determines that the reissued temporary authorization involving a Class 3 permit modification request is warranted to allow the authorized activities to continue while the modification procedures of subsection (d) of this section are conducted. (g) Public notice and appeals of permit modification decisions. (1) The commission shall notify all persons listed in §39.413 of this title within ten working days of any decision under this section to grant or deny a Class 2 or 3 permit modification request. The commission shall also notify such persons within ten working days after an automatic authorization for a Class 2 modification goes into effect under subsection (c)(8) or (11) of this section. (2) The executive director's or the commission's decision to grant or deny a Class 3 permit modification request under this section may be appealed under the appropriate procedures set forth in the commission's rules and in the Administrative Procedure Act, Texas Government Code, Chapter 2001. (h) Newly regulated wastes and units. (1) The permittee is authorized to continue to manage wastes listed or identified as hazardous under 40 CFR Part 261, or to continue to manage hazardous waste in units newly regulated as hazardous waste management units if: (A) the unit was in existence as a hazardous waste facility unit with respect to the newly listed or characteristic waste or newly regulated waste management unit on the effective date of the final rule listing or identifying the waste or regulating the unit; (B) the permittee submits a Class 1 modification request on or before the date on which the waste or unit becomes subject to the new requirements; (C) the permittee is in substantial compliance with the applicable standards of Chapter 335, Subchapter E of this title, Chapter 335, Subchapter H, Divisions 1 through 4 of this title (relating to Standards for the Management of Specific Wastes and Specific Types of Facilities), and 40 CFR Part 265 and Part 266; (D) the permittee also submits a complete Class 2 or 3 modification request within 180 days after the effective date of the final rule listing or identifying the waste or subjecting the unit to Section 6921 of the Resource Conservation and Recovery Act Subtitle C (Subchapter III Hazardous Waste Management, 42 United States Code, §§6921 - 6939e); and (E) in the case of land disposal units, the permittee certifies that each such unit is in compliance with all applicable 40 CFR Part 265 groundwater monitoring requirements and with Chapter 37 of this title (relating to Financial Assurance) on the date 12 months after the effective date of the final rule identifying or listing the waste as hazardous, or regulating the unit as a hazardous waste management unit. If the owner or operator fails to certify compliance with these requirements, the owner or operator shall lose authority to operate under this section. (2) New wastes or units added to a facility's permit under this subsection do not constitute expansions for the purpose of the 25% capacity expansion limit for Class 2 modifications. (i) Combustion facility changes to meet 40 CFR Part 63, Maximum Achievable Control Technology (MACT) standards. The following procedures apply to hazardous waste combustion facility permit modifications requested under L.9. of Appendix I of subsection (k) of this section. (1) Facility owners or operators must have complied with the Notification of Intent to Comply (NIC) requirements of 40 CFR §63.1210(b) and (c) that were in effect prior to October 11, 2000, as amended in 40 CFR §270.42(j) through October 12, 2005 (70 Federal Register 59402), before a permit modification can be requested under this section.(2) If the executive director does not approve or deny the request within 90 days of receiving it, the request shall be deemed approved. The executive director may, at his or her discretion, extend this 90-day deadline one time for up to 30 days by notifying the facility owner or operator. (3) Facility owners or operators may request to have specific RCRA operating and emissions limits waived by submitting a Class 1 permit modification request under L.10. in Appendix I of subsection (k) of this section. The facility owner or operator must: (A) identify the specific RCRA permit operating and emissions limits which are requested to be waived; (B) provide an explanation of why the changes are necessary to minimize or eliminate conflicts between the RCRA permit and MACT compliance; (C) discuss how the revised provisions will be sufficiently protective; and (D) the executive director shall notify the facility owner or operator whether the Class 1 permit modification has been approved or denied. If denied, the executive director shall provide justification for denial. (4) To request the modification referenced in paragraph (3) of this subsection in conjunction with MACT performance testing where permit limits may only be waived during actual test events and pretesting, as defined under 40 CFR §63.1207(h)(2)(i) and (ii), for an aggregate time not to exceed 720 hours of operation (renewable at the discretion of the executive director); the owner or operator must: (A) submit the modification request to the executive director at the same time the test plans are submitted to the executive director; and (B) the executive director may elect to approve or deny the request contingent upon approval of the test plans. (j) Military hazardous waste munitions storage, processing, and disposal. The permittee is authorized to continue to accept waste military munitions regardless of any permit conditions barring the permittee from accepting off-site wastes, if: (1) the facility is in existence as a hazardous waste facility, and the facility is already permitted to handle waste military munitions, on the date when waste military munitions become subject to hazardous waste regulatory requirements; (2) on or before the date when waste military munitions become subject to hazardous waste regulatory requirements, the permittee submits a Class 1 modification request to remove or revise the permit provision restricting the receipt of off-site waste munitions; and (3) the permittee submits a Class 2 modification request within 180 days of the date when the waste military munitions become subject to hazardous waste regulatory requirements. (k) Appendix I. The following appendix will be used for the purposes of this subchapter which relates to industrial and hazardous solid waste permit modification at the request of the permittee. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §305.69 adopted to be effective October 29, 1990, 15 TexReg 6015; amended to be effective July 29, 1992, 17 TexReg 5090; amended to be effective June 7, 1993, 18 TexReg 3290; amended to be effective November 23, 1993, 18 TexReg 8215; amended to be effective February 22, 1994, 19 TexReg 941; amended to be effective November 7, 1994, 19 TexReg 8543; amended to be effective April 17, 1995, 20 TexReg 2392; amended to be effective February 26, 1996, 21 TexReg 1137; amended to be effective August 8, 1999, 24 TexReg 5879;amended to be effective March 21, 2000, 25 TexReg 2368; amended to be effective April 12, 2001, 26 TexReg 2739; amended to be effective November 15, 2001, 26 TexReg 9123; amended to be effective August 16, 2007, 32 TexReg 5003; amended to be effective October 29, 2009, 34 TexReg 7315; amended to be effective February 21, 2013, 38 TexReg 970; amended to be effective May 14, 2020, 45 TexReg 3109.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scD/s305.70"><num value="305.70">§305.70</num><heading>Municipal Solid Waste Permit and Registration Modifications</heading><content>(a) This section applies only to modifications to municipal solid waste (MSW) permits and registrations related to regulated MSW activities. Modifications to industrial and hazardous solid waste permits are covered in §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee). Changes to conditions in an MSW permit or registration which were specifically ordered by the commission following the contested hearing process or included by the executive director as a result of negotiations between the applicant and interested persons during the permitting/registration process are not eligible for modification under this section. Applications filed before the effective date of this section will be subject to the section as it existed at the time the application was received.(b) References to the term "permit" in this section include the permit document and all of the attachments thereto as further defined in Chapter 330, Subchapter B of this title (relating to Permit and Registration Application Procedures). References to the term "registration" in this section include the registration document and all of the attachments thereto as further defined in Chapter 330, Subchapter B of this title.(c) Any increase in the permitted or registered daily maximum limit of waste acceptance for a Type V processing facility shall be subject either to the requirements of §305.62(c)(1) of this title (relating to Amendment) in the case of a permitted facility, or to the requirements of a new registration in the case of a registered facility. Changes in the annual waste acceptance rate at landfill facilities are subject to the requirements of §330.125(h) of this title (relating to Recordkeeping Requirements).(d) Permit and registration modifications apply to minor changes to an MSW facility or its operation that do not substantially alter the permit or registration conditions and do not reduce the capability of the facility to protect human health and the environment.(e) A permittee or registrant may implement a modification to an MSW permit or registration provided that the permittee or registrant has received prior written authorization for the modification from the executive director. In order to receive prior written authorization, the permittee or registrant must submit a modification application to the executive director which includes, at a minimum, the following information:(1) a description of the proposed change;(2) an explanation detailing why the change is necessary;(3) appropriate revisions to all applicable narrative pages and drawings of Attachment A of a permit or a registration (i.e., a site development plan, site operating plan, engineering report, or any other approved plan attached to a permit or a registration document). These revisions shall be marked and include revision dates and notes as necessary in accordance with §330.57(g) of this title (relating to Permit and Registration Applications for Municipal Solid Waste Facilities);(4) a reference to the specific provision under which the modification application is being made; and(5) for those modifications submitted in accordance with subsection (l) of this section that the executive director determines that notice is required and for those listed in subsection (k) of this section, an updated landowners map and an updated landowners list as required under §330.59(c)(3) of this title (relating to Contents of Part I of the Application).(f) The permittee or registrant must submit one original, two unmarked copies, and one marked (e.g., redline/strikeout) copy of the modification application in accordance with §305.44 of this title (relating to Signatories to Applications). The applicant shall provide one of the two unmarked copies to the appropriate commission regional office. Failure to submit the modification application with complete information may result in the application being returned to the permittee or registrant without further action. Engineering documents must be signed and sealed by the responsible licensed professional engineer as required by §330.57(f) of this title.(g) The following shall guide the processing of applications for modification of permits and registrations:(1) For an application for a modification that does not require notice, if at the end of 60 calendar days after receipt of the permit or registration modification application the executive director has not taken one of the following five steps, the application shall be automatically approved:(A) approve the application, with or without changes, and modify the permit or registration accordingly;(B) deny the application;(C) provide a notice-of-deficiency letter requiring additional or clarified information regarding the proposed change;(D) determine that the application does not qualify as a registration modification, and that the requested change requires a new application for registration; or(E) determine that the application does not qualify as a permit modification and that the requested change requires an amendment to the permit in accordance with §305.62(c) of this title.(2) For an application for a modification that requires notice, technical review shall be completed within 60 calendar days of receipt of the permit or registration modification application, unless the review period is extended by the executive director in writing if needed to resolve an outstanding notice of deficiency. Upon completion of the public comment period, the executive director may do one of the following.(A) If no timely comments are received, the executive director may grant the application on the 28th calendar day (unless extended by the executive director) after the notice requirements have been met as evidenced by the certification of notice filed with the chief clerk. The application is automatically approved if not acted on by the 28th calendar day (unless extended by the executive director) after the notice requirements have been met as evidenced by the certification of notice filed with the chief clerk.(B) If timely comments are received, the executive director may take one of the steps listed in paragraph (1) of this subsection on or before the 45th calendar day (unless extended by the executive director) after the notice requirements have been met as evidenced by the certification of notice filed with the chief clerk. The application is automatically approved if not acted on by the 45th calendar day (unless extended by the executive director) after the notice requirements have been met as evidenced by the certification of notice filed with the chief clerk.(h) If an application for a permit or registration modification is denied by the executive director, the permittee or registrant must comply with the original permit or registration conditions.(i) If a permit or registration modification is listed in subsection (k) of this section or if a permit or registration modification application is made under subsection (l) of this section and the executive director determines that notice is required, notice shall be made in accordance with §39.1009 of this title (relating to Notice of Modification of a Municipal Solid Waste Permit or Registration) and the following requirements:(1) The permittee or registrant shall:(A) file a landowner's list current on the day of filing under subsection (e)(5) of this section and §39.413(1) of this title (relating to Mailed Notice);(B) provide Notice of Application and Preliminary Decision after technical review is complete in accordance with §39.1009 of this title;(C) mail the notice to the persons listed in §39.413 of this title; and(D) file certification with the commission on a form prescribed by the executive director that notice was provided as required by this section.(2) The text of the notice prepared by the executive director shall:(A) comply with §39.1009 of this title;(B) state that a person may provide the commission with written comments on the application within 23 days after the date the applicant mails notice; and(C) provide the website address where the application has been placed in accordance with §330.57(i) of this title.(3) Before acting on an application, the executive director shall review and consider any timely written comments. The executive director is not required to file a response to comment.(4) The chief clerk shall mail notice of issuance of a modification in accordance with §50.133(b) of this title (relating to Executive Director Action on Application or WQMP Update). Section 50.133(b) of this title does not apply to modifications which do not require notice under subsection (j) or (l) of this section.(j) Paragraphs (1) - (32) of this subsection are allowable permit and registration modifications that do not require notice if they meet the criteria in subsection (d) of this section (i.e., they must apply to minor changes to an MSW facility or its operation that do not substantially alter the permit or registration conditions and do not reduce the capability of the facility to protect human health and the environment):(1) the establishment of a cell or area that will accept brush and construction demolition waste and rubbish only (also known as a Type IV area) if the cell or area is located within the disposal footprint specified in the site development plan or municipal solid waste landfill (MSWLF) permit;(2) changes in excavation details for landfills, except for changes that would:(A) increase the depth or lateral extent of the disposal footprint as described in the site development plan or permit; or(B) increase the disposal capacity of the landfill facility;(3) changes to the landfill marker systems (e.g., from a grid based upon geographic coordinates to a grid based upon survey coordinates);(4) an increase in sampling frequency (e.g., for groundwater and landfill gas monitoring systems);(5) submittal of a new Soils and Liner Quality Control Plan (SLQCP) or changes to an existing SLQCP;(6) changes to existing landfill underdrain or dewatering systems that maintain or improve effectiveness;(7) changes to the site layout plan that add or delete a registered or exempted MSW facility/activity (e.g., a used or scrap tire collection area, a compost operation, a recycling collection area, a liquid waste processing facility, a registered transfer station, a citizens' collection station, a beneficial landfill gas recovery plant, a brush collection/chipping/mulching area, etc.);(8) changes in the site layout, other than entry gate location, that relocate the gatehouse, office or maintenance building locations, or that add scales to the facility;(9) changes in the design details for an authorized solidification basin;(10) changes in the drainage control plan that alter internal storm water run-on/run-off control without impacting offsite drainage or increasing landfill disposal capacity;(11) the addition of design and operational requirements in accordance with §330.173 of this title (relating to the Disposal of Industrial Wastes) for the opening of a dedicated cell or area that will accept Class 1 nonhazardous industrial waste, provided that the landfill permit authorizes the acceptance of that waste and that the dedicated cell or area is located within the disposal footprint specified in the site development plan or MSWLF permit;(12) changes in the sequence of landfill development unless the changes would potentially affect the adjacent property owners or the community in which case notice in accordance with subsection (i) of this section would be required;(13) changes in the perimeter access control system that do not reduce system effectiveness in controlling access to the site;(14) corrections in the metes and bounds description of the permit or registration boundary that reduce the size of the facility and that do not result in permit or registration acreage beyond the original permit or registration boundary;(15) a change in the facility records storage area from an onsite to an offsite location;(16) the addition of a composting refund plan (a plan containing instructions and procedures to ensure collection of the composting refund, as cited in Texas Health and Safety Code, §361.0135) to the site operating plan of an MSWLF;(17) changes to the Site Development Plan or Site Operating Plan to provide performance-based standards for personnel or equipment, or minor corrections to provide consistency within the permit;(18) installation of a new monitoring well(s) that replace(s) an existing monitoring well(s) (e.g., landfill gas or groundwater monitoring well(s)) that has been damaged or rendered inoperable, with no change to the design or depth of the well(s), or to the monitoring system design;(19) changes to an existing leachate collection system design;(20) installation of a new landfill gas monitoring system not required by permit;(21) changes to an existing landfill gas monitoring system design that maintain or improve the monitoring system design;(22) changes to an existing landfill gas collection system design. Changes made for the purpose of complying with other permits, rules, or regulations do not require prior approval under this section before implementation. Notification of changes made to a landfill gas collection system in order to comply with other permits, rules, or regulations shall be sent within 30 days to the executive director and the appropriate commission regional office. Upon receipt of the notification the executive director will determine if submittal of a modification is required;(23) submittal of a new Groundwater Sampling and Analysis Plan (GWSAP) or changes to an existing GWSAP;(24) submittal of a new waste acceptance plan or the addition of detailed narrative or design drawings which provide details for the acceptance of waste streams authorized within the permit or registration (e.g., Class 1 nonhazardous industrial waste);(25) revisions to an existing waste acceptance plan to include waste streams authorized by the permit or registration;(26) upgrade of an existing landfill groundwater monitoring system with no increase in depth or design, or the installation of monitor wells at a different depth or design in addition to wells in the approved groundwater monitoring system. Changes to the groundwater monitoring system resulting from a change in the groundwater characterization as defined in Chapter 330, Subchapter J of this title (relating to Groundwater Monitoring and Corrective Action), must be requested as an amendment under §305.62 of this title;(27) the plugging of monitoring wells (e.g., landfill gas or groundwater monitoring wells) when the executive director has determined that the plugging of monitoring wells is appropriate in various situations including, but not limited to, when a facility has completed the post-closure maintenance period, when an obsolete monitoring system is being replaced with a new monitoring system, or when a damaged monitoring well is being replaced;(28) changes to closure or post-closure care plans for technical corrections, updated testing procedures, etc.;(29) substitution of an equivalent financial assurance mechanism;(30) changes to a closure or post-closure care cost estimate required under §§330.503, 330.505, or 330.507 of this title (relating to Closure Cost Estimates for Landfills; Closure Cost Estimates For Storage and Processing Units; and Post-Closure Care Cost Estimates for Landfills) that result in an increase/decrease in the amount of financial assurance required if the increase/decrease in the cost estimate is due to an increase/decrease in the maximum area requiring closure;(31) changes in the amount of financial assurance required as the result of corrective action;(32) changes to the entry gate location that do not alter access traffic patterns delineated in the permit or registration;(k) Paragraphs (1) - (13) of this subsection are modifications which require notice. For those modifications requiring notice, the permittee or registrant must send notice of the modification application by first-class mail in accordance with subsection (i) of this section and to all persons listed in §39.413 of this title:(1) the use of an alternate daily cover material on a permanent basis in accordance with §330.165(d) of this title (relating to Landfill Cover);(2) a modification in the operation of a landfill that will change the incoming waste stream to a more restrictive waste stream (i.e., a change from a Type I landfill operation to a Type IV landfill operation). The modification may be granted if the receipt of waste under the present operation ceases once the modification is approved; the filled portion of the landfill will be closed in accordance with Chapter 330, Subchapter K of this title (relating to Closure and Post-Closure); and the modification application details changes to the site development plan and site operating plan as appropriate to reflect the proposed change in operation;(3) installation of a landfill gas collection system for a landfill gas remediation plan in accordance with §330.371 of this title (relating to Landfill Gas Management);(4) changes to groundwater monitor well depth or design that are consistent with the groundwater characterization and approved monitoring system design, and that improve the effectiveness of the system in detecting contamination. Changes to the groundwater monitoring system resulting from a change in the groundwater characterization, must be requested as an amendment under §305.62 of this title;(5) changes to decrease sampling frequency (e.g., for groundwater and landfill gas monitoring systems);(6) changes to a site layout plan that relocate a liquid waste solidification facility or a petroleum-contaminated soil stabilization area;(7) changes to the facility legal description due to the addition of property for purposes of increasing the buffer zone as defined in §330.3 of this title;(8) changes to the excavation plan with no increase in the landfill's maximum permitted elevation, depth or permitted capacity and which do not alter the effectiveness of the groundwater monitoring system;(9) changes to the approved final contours and approved final slopes with no height or capacity increase over the maximum permitted height or capacity, with no impact to off-site drainage;(10) changes to include an alternative final cover design in accordance with §330.457(d) of this title (relating to Closure Requirements for Municipal Solid Waste Landfill Units that Receive Waste on or after October 9, 1993);(11) installation of a new leachate collection system not authorized in the existing permit;(12) changes to post-closure use of a landfill in accordance with §330.957 of this title (relating to Contents of the Development Permit and Workplan Application) during the post-closure care period;(13) name changes or transfers of municipal solid waste permits or registrations in accordance with §305.64 of this title (relating to Transfer of Permits) must be processed as permit or registration modification and require public notice after issuance. The mailing procedures of this subsection shall be followed. Mailing procedures shall be completed after the transfer is approved and within 20 days following the approval.(l) In case of an application for a permit or registration modification for a change not listed in subsection (j) or (k) of this section, the executive director shall make a determination as to whether the change is eligible to be processed as a permit or registration modification and if the change requires public notice in accordance with subsection (i) of this section. In making this determination, the executive director shall consider if the requested change meets the criteria in subsections (d) and (e) of this section. Public notice shall be reserved for modification applications of similar impact as modifications listed in subsection (k) of this section.(m) The applicant, public interest counsel, or other person may file with the chief clerk a motion to overturn the executive director's action on a modification application in accordance with §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).</content><note type="source"><p>Source Note: The provisions of this §305.70 adopted to be effective December 30, 2001, 26 TexReg 10993; amended to be effective May 29, 2008, 33 TexReg 4157; amended to be effective May 14, 2020, 45 TexReg 3109.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scD/s305.72"><num value="305.72">§305.72</num><heading>Underground Injection Control (UIC) Permit Modifications at the Request of the Permittee</heading><content>(a) This section applies only to Underground Injection Control permits.(b) With the permittee's consent, the executive director may modify administratively a permit to make the corrections or allowances for changes in the permitted activity listed in this section, without following the procedures and notice requirements of this chapter. Any change to the permit not processed as a minor modification under this section must be made for cause and in compliance with appropriate public notice requirements. Minor modifications may only:(1) correct typographical errors;(2) require more frequent monitoring or reporting by the permittee;(3) change an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement;(4) change quantities or types of fluids injected which are within the capacity of the facility as permitted and in the judgment of the executive director, would not interfere with the operation of the facility or its ability to meet conditions described in the permit and would not change its classification, provided however, that this provision shall not be used to add a waste stream other than nonhazardous brine produced by a desalination operation or nonhazardous drinking water treatment residuals to the permit of a Class I injection well issued without the opportunity for a contested case hearing;(5) change construction requirements, provided that the alterations comply with the requirements of Chapter 331 of this title (relating to Underground Injection Control); or(6) amend a plugging and abandonment plan which has been updated under §305.154(7) of this title (relating to Standards).</content><note type="source"><p>Source Note: The provisions of this §305.72 adopted to be effective February 11, 1997, 22 TexReg 1169; amended to be effective September 16, 2004, 29 TexReg 8822; amended to be effective July 10, 2008, 33 TexReg 5340.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scF"><num value="F">SUBCHAPTER F</num><heading>PERMIT CHARACTERISTICS AND CONDITIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scF/s305.121"><num value="305.121">§305.121</num><heading>Applicability</heading><content>The provisions of this subchapter establish the characteristics and standards for permits issued for injection wells including subsurface area drip dispersal systems, waste discharge, radioactive material disposal, and solid waste management, including sewage sludge.</content><note type="source"><p>Source Note: The provisions of this §305.121 adopted to be effective June 19, 1986, 11 TexReg 2597; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective September 14, 2000, 25 TexReg 8974; amended to be effective July 5, 2006, 31 TexReg 5333.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scF/s305.122"><num value="305.122">§305.122</num><heading>Characteristics of Permits</heading><content>(a) Compliance with a Resource Conservation and Recovery Act (RCRA) permit during its term constitutes compliance, for purposes of enforcement, with subtitle C of RCRA except for those requirements not included in the permit which:(1) become effective by statute;(2) are promulgated under 40 Code of Federal Regulations (CFR) Part 268, restricting the placement of hazardous wastes in or on the land;(3) are promulgated under 40 CFR Part 264, regarding leak detection systems for new and replacement surface impoundment, waste pile, and landfill units, and lateral expansions of surface impoundment, waste pile, and landfill units. The leak detection system requirements include double liners, construction quality assurance programs, monitoring, action leakage rates, and response action plans, and will be implemented through the Class 1 permit modifications procedures of §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee); or(4) are promulgated under 40 CFR Part 265, Subparts AA, BB, or CC limiting air emissions, as adopted by reference under §335.112 of this title (relating to Standards).(b) A permit may be modified, revoked and reissued, or terminated during its term for cause as set forth in §305.62 of this title (relating to Amendments) and §305.66 of this title (relating to Permit Denial, Suspension, and Revocation), or the permit may be modified upon the request of the permittee as set forth in §305.69 of this title.(c) A permit issued within the scope of this subchapter does not convey any property rights of any sort, nor any exclusive privilege, and does not become a vested right in the permittee.(d) The issuance of a permit does not authorize any injury to persons or property or an invasion of other property rights, or any infringement of state or local law or regulations.(e) Except for any toxic effluent standards and prohibitions imposed under Clean Water Act (CWA), §307, and standards for sewage sludge use or disposal under CWA, §405(d), compliance with a Texas pollutant discharge elimination system (TPDES) permit during its term constitutes compliance, for purposes of enforcement, with the CWA, §§301, 302, 306, 307, 318, 403, and 405; however, a TPDES permit may be amended or revoked during its term for cause as set forth in §305.62 and §305.66 of this title.</content><note type="source"><p>Source Note: The provisions of this §305.122 adopted to be effective June 19, 1986, 11 TexReg 2597; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective November 23, 1993, 18 TexReg 8215; amended to be effective February 26, 1996, 21 TexReg 1137; amended to be effective November 15, 2001, 26 TexReg 9123; amended to be effective February 21, 2013, 38 TexReg 970.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scF/s305.123"><num value="305.123">§305.123</num><heading>Reservation in Granting Permit</heading><content>Every permit is subject to further orders and rules of the commission. In accordance with the procedures for amendments and orders, the commission may incorporate into permits already granted any condition, restriction, limitation, or provision reasonably necessary for the administration and enforcement of Texas Water Code, Chapters 26 - 28 and 32, and Texas Health and Safety Code, Chapters 361 and 401.</content><note type="source"><p>Source Note: The provisions of this §305.123 adopted to be effective June 19, 1986, 11 TexReg 2597; amended to be effective September 14, 2000, 25 TexReg 8974; amended to be effective July 5, 2006, 31 TexReg 5333.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scF/s305.124"><num value="305.124">§305.124</num><heading>Acceptance of Permit, Effect</heading><content>Acceptance of the permit by the person to whom it is issued constitutes an acknowledgment and agreement that such person will comply with all the terms and conditions embodied in the permit, and the rules and other orders of the commission.</content><note type="source"><p>Source Note: The provisions of this §305.124 adopted to be effective June 19, 1986, 11 TexReg 2597.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scF/s305.125"><num value="305.125">§305.125</num><heading>Standard Permit Conditions</heading><content>Conditions applicable to all permits issued under this chapter, and which shall be incorporated into each permit expressly or by reference to this chapter are as follows. (1) The permittee has a duty to comply with all permit conditions. Failure to comply with any permit condition is a violation of the permit and statutes under which it was issued and is grounds for enforcement action, for permit amendment, revocation or suspension, or for denial of a permit renewal application or an application for a permit for another facility. (2) The permittee must apply for an amendment or renewal before the expiration of the existing permit in order to continue a permitted activity after the expiration date of the permit. Authorization to continue such activity terminates upon the effective denial of said application. (3) It is not a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity to maintain compliance with the permit conditions. (4) The permittee shall take all reasonable steps to minimize or prevent any discharge or sludge use or disposal or other permit violation which has a reasonable likelihood of adversely affecting human health or the environment. (5) The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) installed or used by the permittee to achieve compliance with the permit conditions. For Underground Injection Control permits proper operation and maintenance includes effective performance, adequate funding, adequate operator staffing and training, and adequate laboratory and process controls, including appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems only when necessary to achieve compliance with the permit conditions. (6) The permittee shall furnish to the executive director, upon request and within a reasonable time, any information to determine whether cause exists for amending, revoking, suspending, or terminating the permit, and copies of records required to be kept by the permit. (7) The permittee shall give notice to the executive director before physical alterations or additions to the permitted facility if such alterations or additions would require a permit amendment or result in a violation of permit requirements. (8) Authorization from the commission is required before beginning any change in the permitted facility or activity that would result in noncompliance with other permit requirements. (9) The permittee shall report any noncompliance to the executive director which may endanger human health or safety, or the environment. (A) Such information shall be provided orally within 24 hours from the time the permittee becomes aware of the noncompliance. A written submission shall also be provided within five days of the time the permittee becomes aware of the noncompliance. The written submission shall contain a description of the noncompliance and its cause; the potential danger to human health or safety, or the environment; the period of noncompliance, including exact dates and times; if the noncompliance has not been corrected, the time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent recurrence of the noncompliance, and to mitigate its adverse effects. (B) The following must be reported within 24 hours under this paragraph: (i) any unanticipated bypass which exceeds any effluent limitation in a Texas Pollutant Discharge Elimination System permit; and (ii) violation of a maximum daily discharge limitation for any pollutants listed in a Texas Pollutant Discharge Elimination System permit to be reported within 24 hours. (C) Holders of radioactive material licenses issued under Chapter 336 of this title (relating to Radioactive Substance Rules) shall report noncompliances/incidents to the executive director according to the requirements of §336.335 of this title (relating to Reporting Requirements for Incidents). (10) Inspection and entry shall be allowed under Texas Water Code, Chapters 26 - 28 and 32, Texas Health and Safety Code, §§361.032, 361.033, 361.037, and 401.063, and 40 Code of Federal Regulations (CFR) §122.41(i). The statement in Texas Water Code, §26.014, that commission entry of a facility shall occur in accordance with an establishment's rules and regulations concerning safety, internal security, and fire protection is not grounds for denial or restriction of entry to any part of the facility, but merely describes the commission's duty to observe appropriate rules and regulations during an inspection. (11) Monitoring and reporting requirements are as follows. (A) Monitoring samples and measurements shall be taken at times and in a manner so as to be representative of the monitored activity. (B) Except as otherwise required by Chapter 336 of this title or for records of monitoring information required by a permit related to the permittee's sewage sludge use and disposal activities, which shall be retained for a period of at least five years (or longer as required by 40 CFR Part 503), monitoring and reporting records, including strip charts and records of calibration and maintenance, copies of all records required by the permit, records of all data used to complete the application for this permit, and the certification required by 40 CFR §264.73(b)(9) shall be retained at the facility site for a period of three years from the date of the record or sample, measurement, report, application, or certification. This period shall be extended at the request of the executive director. (C) Records of monitoring activities shall include: (i) date, time, and place of sample or measurement; (ii) identity of individual who collected the sample or made the measurement; (iii) date of analysis; (iv) identity of the individual and laboratory who performed the analysis; (v) the technique or method of analysis; and (vi) the results of the analysis or measurement. (12) Any noncompliance other than that specified in this section, or any required information not submitted or submitted incorrectly shall be reported to the executive director as promptly as possible. (13) A permit may be transferred only according to the provisions of §305.64 of this title (relating to Transfer of Permits). (14) All reports and other information requested by the executive director shall be signed by the person and in the manner required by §305.128 of this title (relating to Signatories to Reports). (15) A permit may be amended, suspended and reissued, or revoked for cause. The filing of a request by the permittee for a permit amendment, suspension and reissuance, or termination, or a notification of planned changes or anticipated noncompliance, does not stay any permit condition. (16) A permit does not convey any property rights of any sort, or any exclusive privilege. (17) Monitoring results shall be provided at the intervals specified in the permit. (18) Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of the permit shall be submitted no later than 14 days following each schedule date. (19) Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in an application, or in any report to the executive director, it shall promptly submit such facts or information. (20) The permittee is subject to administrative, civil, and criminal penalties, as applicable, under Texas Water Code, §§26.136, 26.212, and 26.213 for violations including, but not limited to, the following: (A) negligently or knowingly violating Clean Water Act (CWA), §§301, 302, 306, 307, 308, 318, or 405, or any condition or limitation implementing any sections in a permit issued under CWA, §402, or any requirement imposed in a pretreatment program approved under CWA, §402(a)(3) or (b)(8); (B) falsifying, tampering with, or knowingly rendering inaccurate any monitoring device or method required to be maintained under a permit; or (C) knowingly making any false statement, representation, or certification in any record or other document submitted or required to be maintained under a permit, including monitoring reports or reports of compliance or noncompliance. (21) For hazardous waste management facility permits, the executive director may require the permittee to establish and maintain an information repository at any time, based on the factors set forth in 40 CFR §124.33(b), as amended December 11, 1995, in the Federal Register (60 FR 63417). The information repository will be governed by the provisions in 40 CFR §124.33(c) - (f), as amended December 11, 1995, in the Federal Register (60 FR 63417). (22) Notice of bankruptcy. (A) Each permittee shall notify the executive director, in writing, immediately following the filing of a voluntary or involuntary petition for bankruptcy under any chapter of Title 11 (Bankruptcy) of the United States Code (11 USC) by or against: (i) the permittee; (ii) an entity (as that term is defined in 11 USC, §101(14)) controlling the permittee or listing the permit or permittee as property of the estate; or (iii) an affiliate (as that term is defined in 11 USC, §101(2)) of the permittee. (B) This notification must indicate: (i) the name of the permittee; (ii) the permit number(s); (iii) the bankruptcy court in which the petition for bankruptcy was filed; and (iv) the date of filing of the petition.</content><note type="source"><p>Source Note: The provisions of this §305.125 adopted to be effective June 19, 1986, 11 TexReg 2597; amended to be effective July 14, 1987, 12 TexReg 2102; amended to be effective July 27, 1988, 13 TexReg 3513; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective February 11, 1997, 22 TexReg 1169; amended to be effective August 8, 1999, 24 TexReg 5879; amended to be effective September 14, 2000, 25 TexReg 8974; amended to be effective July 5, 2006, 31 TexReg 5333.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scF/s305.126"><num value="305.126">§305.126</num><heading>Additional Standard Permit Conditions for Waste Discharge Permits</heading><content>(a) Whenever flow measurements for any sewage treatment plant facility in the state reaches 75% of the permitted average daily or annual average flow for three consecutive months, the permittee must initiate engineering and financial planning for expansion and/or upgrading of the wastewater treatment and/or collection facilities. Whenever the average daily or annual average flow reaches 90% of the permitted average daily flow for three consecutive months, the permittee shall obtain necessary authorization from the commission to commence construction of the necessary additional treatment and/or collection facilities. In the case of a wastewater treatment facility which reaches 75% of the permitted average flow for three consecutive months, and the planned population to be served or the quantity of waste produced is not expected to exceed the design limitations of the treatment facility, the permittee will submit an engineering report supporting this claim to the executive director. If in the judgment of the executive director the population to be served will not cause permit noncompliance, then the requirements of this section may be waived. To be effective, any waiver must be in writing and signed by the director of the enforcement division of the commission, and such waiver of these requirements will be reviewed upon expiration of the existing permit; however, any such waiver shall not be interpreted as condoning or excusing any violation of any permit parameter.(b) The permittee shall give notice to the executive director as soon as possible of any planned physical alterations or additions to the permitted facility. In addition to the requirements of §305.125(7) of this title (relating to Standard Permit Conditions), notice shall also be required under this subsection when:(1) the alteration or addition to a permitted facility may meet one of the criteria for determining whether a facility is a new source in §305.534 of this title (relating to New Sources and New Dischargers); or(2) the alteration or addition could significantly change the nature or increase the quantity of pollutants discharged. This notification applies to pollutants which are subject neither to effluent limitations in the permit, nor to notification requirements under 40 Code of Federal Regulations (CFR) §122.42(a)(1) as adopted by §305.531 of this title (relating to Establishing and Calculating Additional Conditions and Limitations for TPDES Permits);(3) the alteration or addition results in a significant change in the permittee's sludge use or disposal practices, and such alteration, addition, or change may justify the application of permit conditions that are different from or absent in the existing permit, including notification of additional use or disposal sites not reported during the permit application process or not reported pursuant to an approved land application plan.(c) If the permittee is a new discharger, it must provide quantitative data described in 40 CFR §122.21(h)(4)(I) and (ii) no later than two years after commencement of discharge; however, the permittee need not conduct tests which the permittee has already performed and reported under the discharge monitoring requirements of its TPDES permit.</content><note type="source"><p>Source Note: The provisions of this §305.126 adopted to be effective June 19, 1986, 11 TexReg 2597; amended to be effective June 25, 1990, 15 TexReg 3416; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective April 24, 1995, 20 TexReg 2708; amended to be effective December 27, 1998, 23 TexReg 12930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scF/s305.127"><num value="305.127">§305.127</num><heading>Conditions to be Determined for Individual Permits</heading><content>Conditions to be determined on a case-by-case basis according to the criteria specified in this section, and when applicable, incorporated into the permit expressly or by reference, are listed in the following paragraphs.(1) Duration.(A) Injection well permits.(i) Permits for Class I and Class V wells shall be for a fixed term not to exceed ten years.(ii) Initial permits and reissuance of permits for Class III wells shall be for a fixed term of ten years.(B) Solid waste permits.(i) Hazardous waste permits shall be for a fixed term not to exceed ten years.(ii) Other solid waste permits may be for the life of the project.(iii) Each permit for a land disposal facility used to manage hazardous waste shall be reviewed by the executive director five years from the date of permit issuance or reissuance and shall be modified as necessary by the commission, as provided in §305.62(e) of this title (relating to Amendment).(C) Waste discharge permits.(i) Texas pollutant discharge elimination system (TPDES) permits, including sludge permits, shall be for a term not to exceed five years.(ii) All other permits shall be as follows.(I) Permits which authorize a direct discharge of wastewater into a surface drainageway shall be for a term not to exceed five years.(II) Confined animal feeding operation permits may be for the life of the project.(III) Other wastewater permits, including permits which regulate land disposal systems shall be for a term not to exceed ten years.(D) Drilled or mined shaft permits. Drilled or mined shaft permits which authorize operation of a drilled or mined shaft shall be for a term not to exceed ten years.(E) Term of permit. The term of a permit shall not be extended by amendment beyond the maximum duration specified in this section.(F) Duration of permit. The executive director may recommend that a permit be issued and the commission may issue any permit, for a duration less than the full allowable term under this section.(G) Radioactive material licenses.(i) A license issued under Chapter 336, Subchapter H of this title (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste) shall be issued for an initial term of 15 years from the date of issuance. After the initial 15 years, the commission may renew the license for one or more terms of ten years. The authority to dispose of waste expires on the date stated in the license except as provided in §336.718(a) of this title (relating to Application for Renewal or Closure).(ii) Other radioactive material licenses shall be for a fixed term not to exceed ten years.(2) Monitoring, recording, and reporting.(A) Requirements concerning the proper use, maintenance, and installation of monitoring equipment or methods shall be specified by the commission as appropriate.(B) The type, intervals, and frequency of monitoring shall be set to yield data representative of the monitored activity, at a minimum as specified in commission rules for monitoring and reporting.(C) Other requirements for monitoring and reporting shall be set at a minimum as specified in commission rules for monitoring and reporting.(3) Schedule of compliance.(A) A schedule of compliance prescribing a timetable for achieving compliance with the permit conditions, the appropriate law, and regulations may be incorporated into a permit. The schedule shall require compliance as soon as possible and may set interim dates of compliance. For injection wells, compliance shall be required not later than three years after the effective date of the permit. For TPDES permits the schedule of compliance shall require compliance not later than authorized by Chapter 307 of this title (relating to Texas Surface Water Quality Standards).(B) For schedules of compliance exceeding one year, interim dates of compliance not exceeding one year shall be set, except that in the case of a schedule for compliance with standards for sewage sludge use and disposal, the time between interim dates shall not exceed six months.(C) Reporting requirements for each schedule of compliance shall be specified by the commission as appropriate. Reports of progress and completion shall be submitted to the executive director no later than 14 days after each schedule date.(D) For TPDES permits the following additional conditions apply.(i) The first TPDES permit issued to a new source or a new discharger shall contain a schedule of compliance only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised after commencement of construction, but less than three years before commencement of the relevant discharge.(ii) For recommencing dischargers, a schedule of compliance shall be available only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised less than three years before recommencement of discharge.(iii) If a permit establishes a schedule of compliance which exceeds one year from the date of permit issuance, the permit schedule shall set forth interim requirements and the dates for their achievement.(E) For underground injection control permits, the time for compliance shall require compliance as soon as possible, and in no case later than three years after the effective date of the permit. Except as provided in clause (iii)(I)(-b-) of this subparagraph, if a permit establishes a schedule of compliance which exceeds one year from the date of permit issuance, the schedule shall set forth interim requirements and the dates for their achievement.(i) The time between interim dates shall not exceed one year.(ii) If the time necessary for completion of any interim requirement is more than one year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.(iii) A permit applicant or permittee may cease conducting regulated activities (by plugging and abandonment) rather than continue to operate and meet permit requirements as follows.(I) If the permittee decides to cease conducting regulated activities at a given time within the term of a permit which has already been issued:(-a-) the permit may be modified to contain a new or additional schedule leading to timely cessation of activities; or(-b-) the permittee shall cease conducting permitted activities before noncompliance with any interim or final compliance schedule requirement already specified in the permit.(II) If the decision to cease conducting regulated activities is made before issuance of a permit whose term will include the cessation date, the permit shall contain a schedule leading to cessation of activities which will ensure timely compliance with applicable requirements.(III) If the permittee is undecided whether to cease conducting regulated activities, the executive director may issue or modify a permit to contain two schedules as follows:(-a-) both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date which ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities;(-b-) one schedule shall lead to timely compliance with applicable requirements;(-c-) the second schedule shall lead to cessation of regulated activities by a date which will ensure timely compliance with applicable requirements; and(-d-) each permit containing two schedules shall include a requirement that after the permittee has made a final decision under item (-a-) of this subclause, it shall follow the schedule leading to compliance if the decision is to continue conducting regulated activities, and follow the schedule leading to cessation if the decision is to cease conducting regulated activities.(IV) The applicant's or permittee's decision to cease conducting regulated activities shall be evidenced by a firm public commitment satisfactory to the executive director, such as a resolution of the board of directors of a corporation.(4) Requirements for individual programs.(A) Requirements to provide for and assure compliance with standards set by the rules of the commission and the laws of Texas shall be determined and included in permits on a case-by-case basis to reflect the best method for attaining such compliance. Each permit shall contain terms and conditions as the commission determines necessary to protect human health and safety, and the environment. Reference is made to Chapter 330 of this title (relating to Municipal Solid Waste) for municipal solid waste facility standards, to Chapter 331 of this title (relating to Underground Injection Control) for injection well standards, to Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste) for solid waste facility standards, to Chapter 336 of this title (relating to Radioactive Substance Rules) for radioactive material disposal standards, to Chapter 309 of this title (relating to Domestic Wastewater Effluent Limitation and Plant Siting) for waste discharge standards, to Chapter 329 of this title (relating to Drilled or Mined Shafts) for drilled or mined shaft standards, and to Chapter 222 of this title (relating to Subsurface Area Drip Dispersal Systems) for subsurface area drip dispersal systems standards.(B) Any applicable statutory or regulatory requirements which take effect prior to final administrative disposition of an application for a permit or prior to the amendment, modification, or suspension and reissuance of a permit shall be included in the permit.(C) New, amended, modified, or renewed permits shall incorporate any applicable requirements contained in Chapter 331 of this title for injection well standards, Chapter 335 of this title for solid waste facility standards, Chapter 336 of this title, Chapter 309 of this title for waste discharge standards, Chapter 329 of this title for drilled or mined shaft standards, and Chapter 222 of this title for subsurface area drip dispersal systems standards.(5) Wastes authorized.(A) Injection well permits. Each category of waste to be disposed of by injection well shall be authorized in the permit.(B) Drilled or mined shaft permits. Each category of waste to be handled, stored, processed, or disposed of in a drilled or mined shaft, or in associated surface facilities shall be authorized in the permit.(C) Unauthorized wastes. Wastes not authorized by permit are prohibited from being transported to, stored, and processed or disposed of in a permitted facility.(6) Permit conditions. All permit conditions shall be incorporated either expressly or by reference. If incorporated by reference, a specific citation to the applicable rules or requirements must be given in the permit.</content><note type="source"><p>Source Note: The provisions of this §305.127 adopted to be effective June 19, 1986, 11 TexReg 2597; amended to be effective October 8, 1990, 15 TexReg 5492; amended to be effective October 29, 1990, 15 TexReg 6015; amended to be effective June 13, 1996, 21 TexReg 4999; amended to be effective February 11, 1997, 22 TexReg 1169; amended to be effective September 14, 2000, 25 TexReg 8974; amended to be effective January 8, 2004, 29 TexReg 136; amended to be effective July 5, 2006, 31 TexReg 5333; amended to be effective March 12, 2009, 34 TexReg 1629.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scF/s305.128"><num value="305.128">§305.128</num><heading>Signatories to Reports</heading><content>(a) All reports requested by permits and other information requested by the executive director shall be signed by a person described in §305.44(a) of this title (relating to Signatories to Applications) or by a duly authorized representative of that person. A person is a duly authorized representative only if:(1) the authorization is made in writing by a person described in §305.44(a) of this title (relating to Signatories to Applications);(2) the authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity or for environmental matters for the applicant, such as the position of plant manager, operator of a well or well field, environmental manager, or a position of equivalent responsibility. (A duly authorized representative may thus be either a named individual or any individual occupying a named position); and(3) the written authorization is submitted to the executive director.(b) If an authorization under this section is no longer accurate because of a change in individuals or position, a new authorization satisfying the requirements of this section must be submitted to the executive director prior to or together with any reports, information, or applications to be signed by an authorized representative.(c) Any person signing a report required by a permit shall make the certification set forth in §305.44(b) of this title (relating to Signatories to Applications).</content><note type="source"><p>Source Note: The provisions of this §305.128 adopted to be effective June 19, 1986, 11 TexReg 2597; amended to be effective July 14, 1987, 12 TexReg 2102; amended to be effective October 8, 1990, 15 TexReg 5492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scF/s305.129"><num value="305.129">§305.129</num><heading>Variance Procedures</heading><content>The following regulations contained in 40 Code of Federal Regulations, which are in effect as of the date of Texas pollutant discharge elimination system (TPDES) program authorization, as amended, are adopted by reference:(1) Part 122, Subpart B--Permit Applications and Special National Pollutant Discharge Elimination System (NPDES) Program Requirements, §122.21(m), providing requirements for variance requests by nonpublicly owned treatment works;(2) Part 122, Subpart B--Permit Applications and Special NPDES Program Requirements, §122.21(n), providing requirements for various requests by publicly owned treatment works (POTWs);(3) Part 122, Subpart C--Permit Applications and Special NPDES Program Requirements, §122.21(o), providing requirements for expedited variance procedures and time extensions;(4) Part 124, Subpart D--Specific Procedures Applicable to NPDES Permits, §124.62, providing decision-making procedures for variances.</content><note type="source"><p>Source Note: The provisions of this §305.129 adopted to be effective October 8, 1990, 15 TexReg 5492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scF/s305.130"><num value="305.130">§305.130</num><heading>Notice of Inactive Municipal Solid Waste Permit</heading><content>(a) The owner or operator of a permitted municipal solid waste (MSW) facility that has not accepted waste within two years of permit issuance or that has ceased accepting waste for two consecutive years shall provide notice to the public as specified in §39.510 of this title (relating to Notice Requirements for Inactive Municipal Solid Waste Permit) of the following:(1) the permitted facility may begin construction or operation at a future time; and(2) the date that the facility is expected to begin construction and operations.(b) The public notifications in subsection (a)(1) and (2) of this section are required on an annual basis following the second anniversary date of permit issuance, date the facility ceased accepting waste, or the effective date of this section, whichever is later, until waste acceptance begins or resumes.(c) The notice requirements of this section are applicable to MSW permits issued:(1) on or after the effective date of this section; and(2) before the effective date of this section.(d) For the purposes of this section, permit issuance means the date that the permit is issued by the commission or the date of a final, non-appealable decision regarding the permit.</content><note type="source"><p>Source Note: The provisions of this §305.130 adopted to be effective June 2, 2005, 30 TexReg 3105.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scF/s305.131"><num value="305.131">§305.131</num><heading>Revocation of Inactive Municipal Solid Waste Permit</heading><content>A municipal solid waste permit may be revoked at the discretion of the commission under the procedures found in §305.68 of this title (relating to Action and Notice on Petition for Revocation or Suspension) if the commission finds that the owner or operator has failed to provide notice to the public as required by §305.130 of this title (relating to Notice of Inactive Municipal Solid Waste Permit).</content><note type="source"><p>Source Note: The provisions of this §305.131 adopted to be effective June 2, 2005, 30 TexReg 3105.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scF/s305.132"><num value="305.132">§305.132</num><heading>Special Conditions for Certain Wastewater Discharges</heading><content>(a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.(1) Collection system--Pipes, conduits, lift stations, force mains, and all other constructions, devices, and appurtenant appliances used to transport domestic wastewater to a wastewater treatment facility.(2) History of noncompliance--History of non-reporting or reoccurrences of accidental discharges or spills of treated or untreated wastewater.(3) Local government--An incorporated city, a county, a river authority, or a water district or authority acting under Article III, Section 52, or Article XVI, Section 59 of the Texas Constitution.(4) Wastewater treatment facility--All contiguous land and fixtures, structures, and appurtenances used for storing, processing, and treating wastewater. A wastewater treatment facility does not include the collection system located outside of the fenced area around a wastewater treatment facility.(b) The owner or operator of a wastewater treatment facility or collection system that is owned or operated by a local government, may report accidental discharges or spills of treated or untreated wastewater that do not endanger human health or safety or the environment to the executive director as a monthly summary if each individual accidental discharge or spill:(1) has a volume of 1,000 gallons or less;(2) is not associated with another simultaneous accidental discharge or spill of treated or untreated wastewater;(3) is controlled or removed before the accidental discharge or spill enters water in the state or adversely affects a public or private source of drinking water; and(4) is not otherwise subject to local regulatory control and reporting requirements.(c) The owner or operator shall submit a monthly summary to the executive director by the 20th day of the month for each accidental discharge or spill of treated or untreated wastewater that occurred during the previous month. The summary must include, at a minimum, the:(1) location, volume and content of the accidental discharge or spill;(2) description of the accidental discharge or spill;(3) cause of the accidental discharge or spill;(4) dates and times of the accidental discharge or spill; and(5) steps taken to reduce, eliminate, and prevent recurrence of the accidental discharge or spill.(d) The owner or operator must use one of the following methods for determining the volume of the discharge or spill.(1) Visual estimate. If the accidental discharge or spill is less than 55 gallons, using a standard five-gallon bucket for reference, estimate the number of buckets that the discharge or spill would fill and then multiply by five to obtain the number of gallons discharged or spilled. If the accidental discharge or spill is larger than 55 gallons, using a standard 55 gallon barrel for reference, estimate the number of barrels that the discharge or spill would fill then multiply by 55 to obtain the number of gallons discharged or spilled.(2) Measured volume. Identify the length, width, and depth of the contained accidental discharge or spill in feet and calculate the volume by multiplying length by width by depth by 7.5 (the conversion factor from cubic feet to gallons).(3) Duration and flow rate. Identify separate estimates for the duration and the flow rate of the accidental discharge or spill. The estimated volume is calculated by multiplying the duration (hours or days) by the flow rate (gallons/hour or gallons/day).(4) Other methods. The responsible person may use other volumetric calculation methodologies rather than those listed in paragraphs (1) - (3) of this subsection, so long as such methodologies include procedures to identify a duration, flow rate, depth, affected area, and total quantity of each spill (including, as appropriate, reference to estimation tools such as barrels, for example), and such methodology is consistent with standard and accepted industry practices. Such alternative methodologies must be identified in the responsible person's monthly report.(e) The owner or operator must keep records of all accidental discharges or spills of treated or untreated wastewater reported under this section. The records must remain on-site for three years and be made immediately available to commission staff upon request.(f) The executive director may require more frequent reporting based on the owner or operator's history of noncompliance.</content><note type="source"><p>Source Note: The provisions of this §305.132 adopted to be effective June 2, 2016, 41 TexReg 3911.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scG"><num value="G">SUBCHAPTER G</num><heading>ADDITIONAL CONDITIONS FOR HAZARDOUS AND INDUSTRIAL SOLID WASTE STORAGE, PROCESSING, OR DISPOSAL PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scG/s305.141"><num value="305.141">§305.141</num><heading>Applicability</heading><content>(a) Unless otherwise stated, the conditions contained in this subchapter apply to all hazardous and industrial solid waste storage, processing, or disposal permits. These conditions are in addition to those set forth in §305.66 of this title (relating to Revocation and Suspension).(b) In addition to the conditions established under §305.127(4) of this title (relating to Conditions to be Determined for Individual Permits), each permit for a facility used for the storage, processing, and disposal of hazardous waste shall include:(1) each of the applicable requirements specified in Chapter 335, Subchapter F of this title (relating to Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities); and(2) a list of the wastes or classes of wastes which will be processed, stored, or disposed of at the facility, and a description of the processes to be used for the processing, storage, or disposal of such hazardous wastes at the facility, including the design capacity of each storage, processing, and disposal unit. Except in the case of containers, the description must identify the particular wastes or classes of wastes which will be processed, stored, or disposed of in particular equipment or locations (e.g., halogenated organics may be stored in Tank A and metal hydroxide sludges may be disposed of in landfill cells B, C, and D).</content><note type="source"><p>Source Note: The provisions of this §305.141 adopted to be effective June 19, 1986, 11 TexReg 2597; amended to be effective June 13, 1996, 21 TexReg 4999.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scG/s305.142"><num value="305.142">§305.142</num><heading>Duty To Comply</heading><content>The permittee need not comply with the conditions of the permit to the extent and for the duration such noncompliance is authorized in an emergency order issued by the commission.</content><note type="source"><p>Source Note: The provisions of this §305.142 adopted to be effective June 19, 1986, 11 TexReg 2597.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scG/s305.143"><num value="305.143">§305.143</num><heading>Recordkeeping</heading><content>For those permits containing a groundwater monitoring requirement, the permittee shall maintain records from all groundwater monitoring wells and associated groundwater surface elevations for the active life of the facility and for disposal facilities for the post-closure care period as well.</content><note type="source"><p>Source Note: The provisions of this §305.143 adopted to be effective June 19, 1986, 11 TexReg 2597.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scG/s305.144"><num value="305.144">§305.144</num><heading>Certification and Inspection</heading><content>For a new facility, the permittee may not commence storage, processing, or disposal of solid waste; and for a facility being modified, the permittee may not process, store, or dispose of solid waste in the modified portion of the facility, except as provided in §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee) until:(1) the permittee has submitted to the executive director by certified mail or hand delivery a letter signed by the permittee and a Texas licensed professional engineer stating that the facility has been constructed or modified in compliance with the permit; and(2) the executive director has inspected the modified or newly constructed facility and finds it is in compliance with the conditions of the permit; or if within 15 days of submission of the letter required by paragraph (1) of this section, the permittee has not received notice from the executive director of an intent to inspect, prior inspection is waived, and the permittee may commence processing, storage, or disposal of solid waste.</content><note type="source"><p>Source Note: The provisions of this §305.144 adopted to be effective June 19, 1986, 11 TexReg 2597; amended to be effective October 29, 1990, 15 TexReg 6015; amended to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scG/s305.145"><num value="305.145">§305.145</num><heading>Release or Discharges of Solid Waste</heading><content>(a) The following shall be included as information which must be reported orally within 24 hours pursuant to §305.125(9) of this title (relating to Standard Permit Conditions):(1) information concerning release of any solid waste that may cause an endangerment to public drinking water supplies;(2) any information of a release or discharge of solid waste, or of a fire or explosion from a facility, which could threaten the environment or human health or safety outside the facility. The description of the occurrence and its cause shall include:(A) name, address, and telephone number of the owner or operator;(B) name, address, and telephone number of the facility;(C) date, time, and type of incident;(D) name and quantity of material(s) involved;(E) the extent of injuries, if any;(F) an assessment of actual or potential hazards to the environment and human health or safety outside the facility, where this is applicable; and(G) estimated quantity and disposition of recovered material that resulted from the incident.(b) The executive director may waive the five-day written notice requirement under §305.125(9) of this title (relating to Standard Permit Conditions) in favor of a written report pursuant to this section within 15 days.</content><note type="source"><p>Source Note: The provisions of this §305.145 adopted to be effective June 19, 1986, 11 TexReg 2597; amended to be effective April 8, 1987, 12 TexReg 998.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scG/s305.147"><num value="305.147">§305.147</num><heading>Monitoring of Commercial Hazardous Waste Management Facility Operations</heading><content>Any issued, amended, modified, transferred, extended, or renewed commercial hazardous waste management facility permit shall include the following requirements.(1) Within the first year after commission action on the permit the facility owner or operator shall provide notice to affected persons of intent to have an independent annual environmental audit of the facility performed. The notice shall be issued in accordance with the following procedure.(A) The notice shall state the names of at least three independent inspectors nominated by the facility owner or operator to perform the environmental audit and shall be published in the newspaper of the largest general circulation that is published in the county in which the facility is located and all adjacent counties or, if no newspaper is published in the county, in a newspaper of general circulation in the county. The facility owner or operator shall not nominate an inspector who is employed or who has been employed by the facility.(B) The notice shall announce a meeting time and place, to be located near the facility location, be held within 15 days of the published notice in order for the facility to receive comments from and allow for participation by interested affected persons in the selection of the independent inspector. The interested affected persons may either agree to one of the nominated independent inspectors or nominate other independent inspectors if they do not approve of the nominee list. The selection of the independent inspector shall be agreed to by the facility owner or operator and the interested affected persons no later than 30 days from the date of the meeting. The name of the selected independent inspector shall be submitted to the commission no later than 15 days from the date of selection for the commission's approval. The commission shall approve the independent inspector after it has determined that the independent inspector has the necessary expertise to perform the audit and does not have a conflict of interest with any of the parties involved in the inspector selection.(C) The published notice may not be smaller than 96.8 square centimeters or 15 square inches with the shortest dimension at least 7.6 centimeters or three inches and shall contain, at a minimum, the following information:(i) the facility owner's or operator's name;(ii) the location of the facility;(iii) the facility permit number;(iv) the time and date of the scheduled annual environmental audit;(v) the names of at least three nominated independent inspectors;(vi) the date and time and location of the selection meeting; and(vii) the name and telephone number of a facility contact person.(D) The facility owner or operator shall provide a copy of the published notice to local jurisdictions where the facility is located.(E) The facility owner or operator shall provide the commission with an affidavit including a newspaper tear sheet of the published notice and sworn statement of the editor or publisher certifying that the notice was given as required by this section. Acceptance of the affidavit creates a rebuttable presumption that the applicant has complied with this section.(2) If the facility owner or operator and interested affected persons cannot agree on the selection of an independent inspector within the time frame specified in paragraph (1)(B) of this section, the commission shall select an independent inspector. The commission's selection, however, shall not be limited to either the facility owner or operator's nominee list or the interested affected persons' nominee list. The commission shall take steps necessary to assure that the independent inspector or entity selected to perform the audit has the necessary expertise to perform the audit, is not a business competitor of the facility, and does not have a conflict of interest with any of the parties involved in the inspector selection.(3) The facility owner or operator shall pay the cost of notice required to be provided under this section.(4) The facility owner or operator shall be responsible for the costs of an independent annual environmental audit. The facility owner or operator shall also maintain responsibility for procuring the selected independent inspector. The commission shall not be a party to such procurement nor warrant the workmanship of the selected inspector.(5) The facility owner or operator shall submit the results of an independent annual environmental audit in writing to the executive director and must mail a copy of the audit to those affected persons who participated in the selection of the independent inspector.(6) The scope of the independent annual environmental audit may encompass any and all provisions of environmental permits required for the facility and all relevant statutes and regulations regarding the management of the facility.(7) The facility is not required to perform the annual independent environmental audit if the facility does not receive any comments from affected persons. If the facility performs the independent audit despite lack of response, the facility must obtain the commission's approval of the selected independent inspector prior to the audit.(8) The facility shall provide for fence line and ambient air quality monitoring if and as required by the commission.</content><note type="source"><p>Source Note: The provisions of this §305.147 adopted to be effective November 7, 1991, 16 TexReg 6051.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scG/s305.148"><num value="305.148">§305.148</num><heading>Impact of New Hazardous Waste Management Facilities on Local Land Use</heading><content>Based on its assessment of an application for a new hazardous waste management facility permit, in accordance with §335.180 of this title (relating to Impact of New Hazardous Waste Management Facilities on Local Land Use), the commission may impose permit conditions deemed to be necessary to minimize or mitigate detrimental impacts on local land use.</content><note type="source"><p>Source Note: The provisions of this §305.148 adopted to be effective November 7, 1991, 16 TexReg 6051.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scG/s305.150"><num value="305.150">§305.150</num><heading>Incorporation of References</heading><content>When used in this chapter, the references contained in 40 Code of Federal Regulations §260.11 are incorporated by reference as amended through October 12, 2005 (70 Federal Register 59402).</content><note type="source"><p>Source Note: The provisions of this §305.150 adopted to be effective November 20, 1996, 21 TexReg 10982; amended to be effective November 15, 2001, 26 TexReg 9123; amended to be effective October 29, 2009, 34 TexReg 7315.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scH"><num value="H">SUBCHAPTER H</num><heading>ADDITIONAL CONDITIONS FOR INJECTION WELL PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scH/s305.151"><num value="305.151">§305.151</num><heading>Applicability</heading><content>Unless stated otherwise, the following conditions apply to all Class I, Class III, and Class V injection well permits and shall be incorporated into the permit expressly or by reference. These conditions are in addition to those set forth in §§305.121-305.128 of this title (relating to Permit Characteristics and Conditions).</content><note type="source"><p>Source Note: The provisions of this §305.151 adopted to be effective June 19, 1986, 11 TexReg 2598; amended to be effective February 11, 1997, 22 TexReg 1169.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scH/s305.152"><num value="305.152">§305.152</num><heading>Corrective Action</heading><content>For Class I and III wells only:(1) For wells within the area of review which are inadequately constructed, completed, or abandoned, and which as a result of the injection activities may cause the pollution of fresh water, the commission shall prescribe or incorporate into the permit conditions requiring corrective action adequate to prevent such pollution. Corrective action will be required unless the owner or operator demonstrates to the executive director that, despite the owner or operator's best efforts, he is unable to obtain the necessary permission to undertake such action.(2) The criteria of §331.44 of this title (relating to Corrective Action Standards) will be used to determine adequacy.(3) A permit issued for an existing injection well requiring corrective action shall include a compliance schedule in compliance with §305.127(3)(E) of this title (relating to Conditions To Be Determined for Individual Permits) prescribing the time within which corrective action must be completed.(4) As part of the corrective action plan, the commission may impose an injection pressure limitation that does not cause the pressure in the injection zone to exceed hydrostatic pressure in those wells described in paragraph (1) of this section, which condition shall expire upon completion of all corrective action measures.(5) Action prescribed by a corrective action plan for new wells or new areas must be completed to the satisfaction of the executive director before operation of the well begins.(6) If additional information is submitted or discovered, after an authorization for injection has been granted, that a well within the area of review might pose a hazard to a freshwater aquifer, the commission may prescribe a corrective action plan and compliance schedule as a condition for continued injection activities.</content><note type="source"><p>Source Note: The provisions of this §305.152 adopted to be effective June 19, 1986, 11 TexReg 2598; amended to be effective February 11, 1997, 22 TexReg 1169.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scH/s305.154"><num value="305.154">§305.154</num><heading>Standards</heading><content>(a) In addition to other standard permit conditions listed elsewhere in this chapter, the following conditions and other applicable standards listed in Chapter 331 of this title (relating to Underground Injection Control) shall be incorporated into each permit expressly or by reference to this chapter. The commission may impose stricter standards where appropriate.(1) Construction requirements. Section 331.62 and §331.82 of this title (relating to Construction Standards; and Construction Requirements).(2) Compliance schedule. See §305.127(3)(E) of this title (relating to Conditions to be Determined for Individual Permits).(3) Construction plans. Changes in construction plans shall be approved under §331.45 of this title (relating to Executive Director Approval of Construction and Completion), or, by minor modification according to §305.72 of this title (relating to Underground Injection Control (UIC) Permit Modifications at the Request of the Permittee).(4) Commencing operations. Commencement of injection operations before approval by the executive director of construction and completion is a violation of the permit and may be considered grounds for revocation or suspension of the permit, and for enforcement action. Except for new wells authorized by an area permit under subsection (b) of this section, a new injection well may not commence injection until construction is complete, and:(A) the permittee has submitted notice of completion of construction to the executive director; and(B) the executive director has inspected or otherwise reviewed the new injection well and finds it complies with the conditions of the permit; or(C) the permittee has not received notice from the executive director of intent to inspect or otherwise review the new injection well within 13 days of the date of the notice in subparagraph (A) of this paragraph, in which case prior inspection or review is waived and the permittee may commence injection. The executive director shall include in the notice a reasonable time period in which he shall inspect the well.(D) for Class I wells, submission of the completion report required by §331.65(b)(1) of this title (relating to Reporting Requirements) shall constitute the notice required in subparagraph (A) of this paragraph.(5) Operating requirements. Section 331.63 and §331.83 of this title (relating to Operating Requirements).(6) Monitoring and reporting. All permits shall specify requirements concerning the proper use, maintenance and installation, when appropriate, of monitoring equipment or methods including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity including when appropriate, continuous monitoring. Reporting shall be no less frequent than specified in the appropriate sections of Chapter 331 of this title: Section 331.64 of this title (relating to Monitoring and Testing Requirements and §331.65 of this title; §331.84 and §331.85 of this title (relating to Monitoring Requirements; and Reporting Requirements); or Chapter 331, Subchapter F of this title (relating to Standards for Class III Well Production Area Development).(7) Closure. The permittee shall notify the executive director and obtain approval before plugging an injection well. After failing to operate for a period of two years, the owner or operator shall close the well in accordance with an approved plan unless:(A) notice is provided to the executive director; and(B) actions and procedures are described, satisfactory to the executive director, that the owner or operator will take to ensure that the well will not endanger underground sources of drinking water during the period of temporary abandonment. These actions and procedures shall include compliance with the technical requirements applicable, unless waived by the executive director.(8) Corrective action requirements. Section 331.44 of this title (relating to Corrective Action Standards) and §305.152 of this title (relating to Corrective Action).(9) Financial assurance requirements. The permittee is required to demonstrate and maintain financial responsibility and resources to close, plug, and abandon in accordance with Chapter 37, Subchapter Q of this title (relating to Financial Assurance for Underground Injection Control Wells). The permittee shall show evidence of such financial responsibility to the executive director.(10) Post-closure requirements. Section 331.68 of this title (relating to Post-Closure Care).(11) Liability coverage requirements. The permittee of hazardous waste injection wells shall maintain sufficient liability coverage for bodily injury and property damage to third parties that is caused by sudden and non-sudden accidents in accordance with Chapter 37, Subchapter Q of this title.(b) Area permits shall specify:(1) The area within which underground injections are authorized.(2) The requirements for construction, monitoring, reporting, operation, and abandonment for all wells authorized by the permit.(3) The area permit may authorize the permittee to construct and operate, convert, or plug and abandon wells within the permit area provided:(A) the permittee notifies the executive director at such time as the permit requires;(B) the additional well satisfies the criteria in §331.7(b) of this title (relating to Permit Required) and meets the requirements specified in the permit under paragraphs (1) and (2) of this subsection; and(C) the cumulative effects of drilling and operation of additional injection wells are considered by the executive director during evaluation of the area permit application and are acceptable to the executive director.(4) If the executive director determines that any well constructed pursuant to paragraph (3) of this subsection does not satisfy any of the requirements of this subsection, the executive director may amend, terminate, or take enforcement action. If the executive director determines that cumulative effects are unacceptable, the permit may be amended under §305.62 of this title (relating to Amendments).(5) Permit range table. The high and low values for each aquifer restoration parameter are identified in §331.104(b) of this title (relating to Establishment of Baseline and Control Parameters for Excursion Detection). All values shall be determined in accordance with the requirements of §305.49(a)(10) of this title (relating to Additional Contents of Application for an Injection Well Permit).</content><note type="source"><p>Source Note: The provisions of this §305.154 adopted to be effective June 19, 1986, 11 TexReg 2598; amended to be effective July 5, 1989, 14 TexReg 3046; amended to be effective February 11, 1997, 22 TexReg 1169; amended to be effective March 21, 2000, 25 TexReg 2368; amended to be effective November 23, 2000, 25 TexReg 11415; amended to be effective December 11, 2014, 39 TexReg 9581.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scH/s305.155"><num value="305.155">§305.155</num><heading>Production Area Authorization</heading><content>A production area authorization shall include for each production area:(1) a mine plan;(2) a restoration table;(3) a baseline water quality table;(4) control parameters upper limits;(5) monitor well locations; and(6) any special provisions determined appropriate by the commission.</content><note type="source"><p>Source Note: The provisions of this §305.155 adopted to be effective June 19, 1986, 11 TexReg 2598.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scH/s305.156"><num value="305.156">§305.156</num><heading>Hazardous Waste</heading><content>For a hazardous waste disposal well, the surface facilities shall comply with Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste). The surface facilities for an injection well which disposes of hazardous waste are hazardous waste management facilities.</content><note type="source"><p>Source Note: The provisions of this §305.156 adopted to be effective June 19, 1986, 11 TexReg 2598.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scH/s305.157"><num value="305.157">§305.157</num><heading>Record Retention</heading><content>The permittee shall retain all records concerning the nature and composition of injected fluids until three years after completion of plugging and abandonment procedures for the well. The executive director may require a permittee to submit copies of the records at any time prior to conclusion of the retention period.</content><note type="source"><p>Source Note: The provisions of this §305.157 adopted to be effective June 19, 1986, 11 TexReg 2598; amended to be effective November 23, 2000, 25 TexReg 11415.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scH/s305.158"><num value="305.158">§305.158</num><heading>Additional Conditions</heading><content>The commission shall impose any other condition necessary to prevent the pollution of fresh water.</content><note type="source"><p>Source Note: The provisions of this §305.158 adopted to be effective June 19, 1986, 11 TexReg 2598.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scH/s305.159"><num value="305.159">§305.159</num><heading>Additional Class I Conditions</heading><content>A permit for a Class I well shall include expressly or by reference the following conditions.(1) A sign shall be posted at the well site which shall show the name of the company, company well number and commission permit number. The sign and identification shall be in the English language, clearly legible, and shall be in numbers and letters at least one inch high.(2) An all-weather road shall be installed and maintained to allow access to the injection well and related facilities.(3) The wellhead and associated facilities shall be painted, if appropriate, and maintained in good working order without leaks.</content><note type="source"><p>Source Note: The provisions of this §305.159 adopted to be effective June 19, 1986, 11 TexReg 2598.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scI"><num value="I">SUBCHAPTER I</num><heading>HAZARDOUS WASTE INCINERATOR PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scI/s305.171"><num value="305.171">§305.171</num><heading>Determining Operational Readiness</heading><content>For the purposes of determining operational readiness following completion of physical construction of a hazardous waste incinerator, the commission shall establish permit conditions including, but not limited to, specification of allowable waste feeds and operating conditions, in a permit for a new hazardous waste incinerator. These permit conditions will be effective for a minimum required time, not to exceed 720 hours operating time for treatment of hazardous waste, to bring the incinerator to a point of operational readiness sufficient to conduct a trial burn. The commission may extend the duration of this operational period once, for up to 720 additional hours, at the request of the applicant when good cause is shown. The permit may be modified to reflect the extension pursuant to §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee).(1) Applicant must submit a statement, with Part B of the permit application, which suggests the conditions necessary to operate in compliance with the performance standards of 40 Code of Federal Regulations §284.343 during this period. This statement should include, at a minimum, restrictions on waste constituents, waste feed rates, and the operating parameters identified in 40 Code of Federal Regulations §264.345.(2) The executive director shall review this statement and any other relevant information submitted with Part B of the permit application and shall specify requirements for this period sufficient to meet the performance standards of 40 Code of Federal Regulations §264.343, based on the executive director's engineering judgment.</content><note type="source"><p>Source Note: The provisions of this §305.171 adopted to be effective June 19, 1986, 11 TexReg 2600; amended to be effective October 29, 1990, 15 TexReg 6015.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scI/s305.172"><num value="305.172">§305.172</num><heading>Determining Feasibility of Compliance and Adequate Operating Conditions</heading><content>For the purposes of determining feasibility of compliance with the performance standards of 40 Code of Federal Regulations (CFR) §264.343 and of determining adequate operating conditions under 40 CFR §264.345, the commission shall establish conditions in the permit for a new hazardous waste incinerator, to be effective during the trial burn. (1) Applicant shall propose a trial burn plan, prepared under paragraph (2) of this section, with Part B of the permit application. (2) The trial burn plan shall include the following information: (A) an analysis of each waste or mixture of wastes to be burned which includes: (i) heat value of the waste in the form and composition in which it will be burned; (ii) viscosity (if applicable), or description of physical form of the waste; (iii) an identification of any hazardous organic constituents listed in 40 CFR Part 261, Appendix VIII, which are present in the waste to be burned, except that the applicant need not analyze for constituents listed in 40 CFR Part 261, Appendix VIII, which reasonably would not be expected to be found in the waste. The constituents excluded from analysis must be identified, and the basis for their exclusion established. The waste analysis must rely on appropriate analytical techniques; and (iv) an approximate quantification of the hazardous constituents identified in the waste, within the precision produced by appropriate analytical methods; (B) a detailed engineering description of the incinerator for which the permit is sought, including: (i) manufacturer's name and model number of incinerator (if available); (ii) type of incinerator; (iii) linear dimensions of the incinerator unit, including the cross-sectional area of combustion chamber; (iv) description of the auxiliary fuel system (type/feed); (v) capacity of prime mover; (vi) description of automatic waste feed cut-off system(s); (vii) stack gas monitoring and pollution control equipment; (viii) nozzle and burner design; (ix) construction materials; and (x) location and description of temperature, pressure, and flow indicating and control devices; (C) a detailed description of sampling and monitoring procedures, including sampling and monitoring locations in the system, the equipment to be used, sampling and monitoring frequency, and planned analytical procedures for sample analysis; (D) a detailed test schedule for each waste for which the trial burn is planned including date(s), duration, quantity of waste to be burned, and other factors relevant to the decision under paragraph (5) of this section; (E) a detailed test protocol, including, for each waste identified, the ranges of temperature, waste feed rate, combustion gas velocity, use of auxiliary fuel, and any other relevant parameters that will be varied to affect the destruction and removal efficiency of the incinerator; (F) a description of, and planned operating conditions for, any emission control equipment which will be used; (G) procedures for rapidly stopping the waste feed, shutting down the incinerator, and controlling emissions in the event of an equipment malfunction; and (H) such other information as the executive director reasonably finds necessary to determine whether to approve the trial burn plan in light of the purposes of this paragraph and the criteria in paragraph (5) of this section. (3) The executive director, in reviewing the trial burn plan, shall evaluate the sufficiency of the information provided and may require the applicant to supplement this information, if necessary, to achieve the purposes of this section. (4) Based on the waste analysis data in the trial burn plan, the commission shall specify as trial principal organic hazardous constituents (POHCs), those constituents for which destruction and removal efficiencies must be calculated during the trial burn. These trial POHCs will be specified by the commission based on an estimate of the difficulty of incineration of the constituents identified in the waste analysis, their concentration or mass in the waste feed, and for wastes listed in 40 CFR Part 261, Subpart D, the hazardous waste organic constituent or constituents identified in Appendix VII of that part as the basis for listing. (5) The commission shall approve a trial burn plan if it finds that: (A) the trial burn is likely to determine whether the incinerator performance standard required by 40 CFR §264.343 can be met; (B) the trial burn itself will not present an imminent hazard to human health or safety or the environment; (C) the trial burn will help the commission to determine the operating requirements to be specified (in the permit) according to 40 CFR §264.345; and (D) the information sought in subparagraphs (A) and (C) of this paragraph cannot reasonably be developed through other means. (6) The chief clerk shall send notice to the state senator and representative who represent the area in which the facility is or will be located, and to the persons listed in §39.413 of this title (relating to Mailed Notice) announcing the scheduled commencement and completion dates for the trial burn. The notice shall meet the requirements of 40 CFR §270.62(b)(6)(i) - (ii), as amended through December 11, 1995, at 60 FedReg 63417. The applicant may not commence the trial burn until after the chief clerk has issued such notice. This paragraph applies to initial trial burns and all other trial burns except those that are to be conducted within 180 days after permit modification covering the trial burn. (7) During each approved trial burn (or as soon after the burn as practicable), the applicant must make the following determinations: (A) a quantitative analysis of the trial POHCs in the waste feed to the incinerator; (B) a quantitative analysis of the exhaust gas for the concentration and mass emissions of the trial POHCs, oxygen (O2) and hydrogen chloride (HCl); (C) a quantitative analysis of the scrubber water (if any), ash residues, and other residues, for the purpose of estimating the fate of the trial POHCs; (D) a computation of destruction and removal efficiency (DRE), in accordance with the DRE formula specified in 40 CFR §264.343(a); (E) if the HCl emission rate exceeds 1.8 kilograms of HCl per hour (four pounds per hour), a computation of HCl removal efficiency in accordance with 40 CFR §264.343(b); (F) a computation of particulate emissions, in accordance with 40 CFR §264.343(c); (G) an identification of sources of fugitive emissions and their means of control; (H) a measurement of average, maximum, and minimum temperatures and combustion gas velocity; (I) a continuous measurement of carbon monoxide (CO) in the exhaust gas; and (J) such other information as the executive director may specify as necessary to ensure that the trial burn will determine the compliance with the performance standards in 40 CFR §264.343 and to establish the operating conditions required by 40 CFR §264.345 as necessary to meet those performance standards. (8) The applicant must submit to the executive director a certification that the trial burn has been carried out in accordance with the approved trial burn plan, and shall submit the results of all the determinations required in paragraph (7) of this section. This submission shall be made within 90 days of completion of the trial burn, or later with the prior approval of the executive director. (9) All data collected during any trial burn shall be submitted to the executive director immediately following the completion of the trial burn. (10) All submissions required by this section shall be certified on behalf of the applicant by the signature of a person authorized to sign a permit application or a report under §305.44 of this title (relating to Signatories to Applications) and §305.128 of this title (relating to Signatories to Reports). (11) Based on the results of the trial burn, the commission or the executive director, as appropriate, subject to §50.133 of this title (relating to Executive Director Action on Application), shall set the operating requirements in the final permit according to 40 CFR §264.345. The permit amendment or modification shall proceed according to §305.62 of this title (relating to Amendments) or §305.69(c) of this title (relating to Solid Waste Permit Modification at the Request of the Permittee).</content><note type="source"><p>Source Note: The provisions of this §305.172 adopted to be effective June 19, 1986, 11 TexReg 2600; amended to be effective October 29, 1990, 15 TexReg 6015; amended to be effective November 20, 1996, 21 TexReg 10982; amended to be effective August 8, 1999, 24 TexReg 5879; amended to be effective October 29, 2009, 34 TexReg 7315; amended to be effective May 14, 2020, 45 TexReg 3109.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scI/s305.173"><num value="305.173">§305.173</num><heading>Operation Prior to Final Amendment of the Permit</heading><content>For the purposes of allowing operation of a new hazardous waste incinerator following completion of the trial burn and prior to final amendment of the permit conditions to reflect the trial burn results, the commission may establish permit conditions, including, but not limited to, allowable waste feeds and operating conditions sufficient to meet the requirements of 40 Code of Federal Regulations §264.345, in the permit for a new hazardous waste incinerator. These permit conditions will be effective for the minimum time required to complete sample analysis, data computation, and submission of the trial burn results by the applicant, and amendment of the facility permit by the commission.(1) Applicants shall submit a statement with Part B of the permit application which identifies the conditions necessary to operate in compliance with the performance standards of 40 Code of Federal Regulations §264.343, during the trial burn period. This statement shall include, at a minimum, restrictions on waste constituents, waste feed rates, and the operating parameters identified in 40 Code of Federal Regulations §264.345.(2) The executive director shall review this statement and any other relevant information submitted with Part B of the permit application, and shall specify those requirements for this period most likely to meet the performance standards of 40 Code of Federal Regulations §264.343, based on the executive director's engineering judgment.</content><note type="source"><p>Source Note: The provisions of this §305.173 adopted to be effective June 19, 1986, 11 TexReg 2600.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scI/s305.174"><num value="305.174">§305.174</num><heading>Existing Incinerators</heading><content>For the purposes of determining feasibility of compliance with the performance standards of 40 Code of Federal Regulations (CFR) §264.343 and of determining adequate operating conditions under 40 CFR §264.345, the applicant for a permit for an existing hazardous waste incinerator must prepare and submit a trial burn plan and perform a trial burn in accordance with 40 CFR §270.19(b) and §305.172(2)-(5) and (7)-(10) of this title (relating to Determining Feasibility of Compliance and Adequate Operating Conditions) or, instead, submit other information as specified in 40 CFR §270.19(c). The chief clerk shall provide notice of the executive director's intention to approve the trial burn, in accordance with the timing and distribution requirements of §305.172(6) of this title (relating to Determining Feasibility of Compliance and Adequate Operating Conditions). The contents of the notice must include: the name and telephone number of a contact person at the facility; the name and telephone number of a contact office at the permitting agency; the location where the trial burn plan and any supporting documents can be reviewed and copied; and a schedule of the activities that are required prior to permit issuance, including the anticipated time schedule for approval of the plan and the time period during which the trial burn would be conducted. Applicants submitting information specified in 40 CFR §270.19(a) are exempt from compliance with 40 CFR §§264.343 and 264.345 and, therefore, are exempt from the requirement to conduct a trial burn. Applicants who submit trial burn plans and receive approval before submission of a permit application shall complete the trial burn and submit the results, specified in §305.172 of this title (relating to Determining Feasibility of Compliance and Adequate Operating Conditions) with Part B of the permit application. If completion of this process conflicts with the date set for submission of the Part B application, the applicant shall contact the executive director to establish a later date for submission of the Part B application or the trial burn results. Trial burn results must be submitted prior to issuance of the permit. When the applicant submits a trial burn plan with Part B of the permit application, the executive director will specify a time period prior to permit issuance in which the trial burn must be conducted and the results submitted.</content><note type="source"><p>Source Note: The provisions of this §305.174 adopted to be effective June 19, 1986, 11 TexReg 2600; amended to be effective October 29, 1990, 15 TexReg 6015; amended to be effective August 8, 1999, 24 TexReg 5879.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scI/s305.175"><num value="305.175">§305.175</num><heading>Conditional Exemption for Demonstrating Compliance with Certain Air Standards</heading><content>When an owner or operator of a hazardous waste incineration unit becomes subject to Resource Conservation and Recovery Act permit requirements after October 12, 2005, or when an owner or operator of an existing hazardous waste incineration unit demonstrates compliance with the air emission standards and limitations in 40 Code of Federal Regulations (CFR) Part 63, Subpart EEE, the requirements of this subchapter do not apply, except those provisions the executive director determines are necessary to ensure compliance with 40 CFR §264.345(a) and 40 CFR §264.345(c), if the permittee or applicant elects to comply with 40 CFR §270.235(a)(1)(i). The executive director may apply the provisions of this subchapter, on a case-by-case basis, and require a permittee or an applicant to submit information in order to establish permit conditions under §305.50(a)(15) or (16) and §305.127(1)(B)(iii) or (4)(A) of this title (relating to Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order; and Conditions to be Determined for Individual Permits).</content><note type="source"><p>Source Note: The provisions of this §305.175 adopted to be effective November 15, 2001, 26 TexReg 9123; amended to be effective August 16, 2007, 32 TexReg 5003; amended to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scI/s305.176"><num value="305.176">§305.176</num><heading>Integration with Maximum Achievable Control Technology (MACT) Standards</heading><content>The regulations contained in 40 Code of Federal Regulations §270.235, Options for Incinerators, Cement Kilns, Lightweight Aggregate Kilns, Solid Fuel Boilers, Liquid Fuel Boilers, and Hydrochloric Acid Production Furnaces to Minimize Emissions from startup, shutdown, and malfunction events, are adopted by reference, as amended and adopted through October 12, 2005 (70 FedReg 59402).</content><note type="source"><p>Source Note: The provisions of this §305.176 adopted to be effective February 21, 2013, 38 TexReg 970.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scJ"><num value="J">SUBCHAPTER J</num><heading>PERMITS FOR LAND TREATMENT DEMONSTRATIONS USING FIELD TESTS OR LABORATORY ANALYSES</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scJ/s305.181"><num value="305.181">§305.181</num><heading>Treatment Demonstration Permit</heading><content>For the purpose of allowing an owner or operator to meet the treatment demonstration requirements of 40 Code of Federal Regulations §264.272, the commission may issue a treatment demonstration permit. The permit shall contain only those requirements necessary to meet the standards in 40 Code of Federal Regulations §264.272(c). The permit may be issued either as a treatment or disposal permit covering only the field test or laboratory analyses, or as a two phase facility permit covering the field tests or laboratory analyses, and the design, construction, operation, and maintenance of the land treatment unit.(1) The commission may issue a two-phase facility permit if it finds that, based on information submitted in Part B of the application, substantial information, although incomplete or inconclusive, already exists upon which to base the issuance of a facility permit.(2) If the commission finds that insufficient information exists upon which to establish permit conditions to attempt to provide for compliance with all of the requirements relating to land treatment, the commission may issue a treatment demonstration permit covering only the field test or laboratory analyses.</content><note type="source"><p>Source Note: The provisions of this §305.181 adopted to be effective June 19, 1986, 11 TexReg 2600.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scJ/s305.182"><num value="305.182">§305.182</num><heading>Two-Phase Facility Permit</heading><content>If the commission finds that a phased permit may be issued, the commission shall establish, as requirements in the first phase of the facility permit, conditions for conducting the field tests or laboratory analyses. These permit conditions shall include design and operating parameters (including the duration of the tests or analyses and, in the case of field tests, the horizontal and vertical dimensions of the treatment zone), monitoring procedures, post-demonstration clean-up activities, and any other conditions which the commission finds may be necessary under 40 Code of Federal Regulations §264.272(c). The commission shall include conditions in the second phase of the facility permit to attempt to meet all requirements pertaining to unit design, construction, operation, and maintenance of land treatment facilities. The commission shall establish these conditions in the second phase of the permit based upon the substantial but incomplete or inconclusive information contained in the Part B application.(1) The first phase of the permit shall be effective as provided in Texas Civil Statutes, Article 6252-13, and the rules of the commission.(2) The second phase of the permit shall be effective as provided in §305. 184 of this title (relating to Permit Amendment).</content><note type="source"><p>Source Note: The provisions of this §305.182 adopted to be effective June 19, 1986, 11 TexReg 2600.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scJ/s305.183"><num value="305.183">§305.183</num><heading>Certification</heading><content>When the owner or operator who has been issued a two-phase permit has completed the treatment demonstration, he shall submit to the executive director a certification, signed by a person authorized to sign a permit application or report under §305.44 of this title (relating to Signatories to Applications) and §305.128 of this title (relating to Signatories to Reports), that the field tests or laboratory analyses have been carried out in accordance with the conditions specified in phase one of the permit for conducting such tests or analyses. The owner or operator shall also submit all data collected during the field tests or laboratory analyses within 90 days of completion of those tests or analyses unless the executive director approves a later date.</content><note type="source"><p>Source Note: The provisions of this §305.183 adopted to be effective June 19, 1986, 11 TexReg 2600.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scJ/s305.184"><num value="305.184">§305.184</num><heading>Permit Amendment or Modification</heading><content>If the commission determines that the results of the field tests or laboratory analyses meet the requirements of 40 Code of Federal Regulations §264.272, it shall amend the second phase of the permit to incorporate any requirements necessary for operation of the facility in compliance with requirements applicable to land treatment, based upon the results of the field tests or laboratory analyses.(1) This permit amendment may proceed under §305.62 of this title (relating to Amendment) or §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee), provided any such change is minor, or otherwise will proceed as an amendment under §305.62(d) of this title (relating to Amendment). If such modifications or amendments are necessary, the second phase of the permit will become effective only after those modifications or amendments have been made.(2) If not amendments of the second phase of the permit are not necessary, the commission shall give notice in accordance with §305.96(b) of this title (relating to Action on Application for Amendment or Modification). The second phase of the permit then will become effective as specified in Texas Civil Statutes, Article 6252-13, and the rules of the commission.</content><note type="source"><p>Source Note: The provisions of this §305.184 adopted to be effective June 19, 1986, 11 TexReg 2600; amended to be effective October 29, 1990, 15 TexReg 6015.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scK"><num value="K">SUBCHAPTER K</num><heading>RESEARCH, DEVELOPMENT, AND DEMONSTRATION PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scK/s305.191"><num value="305.191">§305.191</num><heading>Applicability and Scope</heading><content>The commission may issue a research, development, and demonstration permit for any hazardous waste treatment facility which proposes to utilize an innovative and experimental hazardous waste treatment technology or process for which permit standards for such experimental activity have not been promulgated under 40 Code of Federal Regulations Parts 264 or 266. Any such permit shall include such terms and conditions as will assure protection of human health or safety and the environment. Such permits:(1) shall provide for the construction of such facilities as necessary, and for operation of the facility for not longer than one year unless renewed as provided in §305.194 of this title (relating to Renewal);(2) shall provide for the receipt and treatment by the facility of only those types and quantities of hazardous waste which the commission deems necessary for purposes of determining the efficacy and performance capabilities of the technology or process and the effects of such technology or process on human health and safety and the environment; and(3) shall include such requirements as the commission deems necessary to protect human health and safety and the environment, including, but not limited to, requirements regarding monitoring, operation, financial responsibility closure, and remedial action, and such other requirements as the commission deems necessary regarding testing with respect to the operation of the facility and providing of information to the executive director.</content><note type="source"><p>Source Note: The provisions of this §305.191 adopted to be effective June 19, 1986, 11 TexReg 2601.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scK/s305.192"><num value="305.192">§305.192</num><heading>Waiver of Requirements</heading><content>For the purpose of expediting review and issuance of permits under this subchapter, the commission may, consistent with the protection of human health and safety and the environment, modify or waive permit application and permit issuance requirements of this chapter, except that there may be no modification or waiver of regulations regarding financial responsibility (including insurance) or of procedures regarding public participation.</content><note type="source"><p>Source Note: The provisions of this §305.192 adopted to be effective June 19, 1986, 11 TexReg 2601; amended to be effective August 30, 1988, 13 TexReg 4071.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scK/s305.193"><num value="305.193">§305.193</num><heading>Termination</heading><content>The commission may order an immediate termination of all operations at a facility subject to this subchapter at any time the commission determines that termination is necessary to protect human health and safety and the environment.</content><note type="source"><p>Source Note: The provisions of this §305.193 adopted to be effective June 19, 1986, 11 TexReg 2601.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scK/s305.194"><num value="305.194">§305.194</num><heading>Renewal</heading><content>Any permit issued under this subchapter may be renewed not more than three times. Each such renewal shall be for a period of not more than one year.</content><note type="source"><p>Source Note: The provisions of this §305.194 adopted to be effective June 19, 1986, 11 TexReg 2601.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scL"><num value="L">SUBCHAPTER L</num><heading>GROUNDWATER COMPLIANCE PLAN</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scL/s305.401"><num value="305.401">§305.401</num><heading>Compliance Plan</heading><content>(a) In order to administer the groundwater protection requirements relating to compliance monitoring and corrective action for facilities that store, process, or dispose of hazardous waste in surface impoundments, waste piles, land treatment units, or landfills, and the requirements of §335.167 of this title (relating to Corrective Action for Solid Waste Management Units), the commission shall establish a compliance plan.(b) The following rules pertaining to application, and notice and hearing shall be applicable in proceedings to establish the plan: §39.401 of this title (relating to Purpose); §39.403 of this title (relating to Applicability); §39.405 of this title (relating to General Notice Provisions); §39.407 of this title (relating to Mailing Lists); §39.409 of this title (relating to Deadline for Public Comment, and for Requests for Reconsideration, Contested Case Hearing, or Notice and Comment Hearing); §39.411 of this title (relating to Text of Public Notice); §39.413 of this title (relating to Mailed Notice); §39.418 of this title (relating to Notice of Receipt of Application and Intent to Obtain Permit); §39.419 of this title (relating to Notice of Application and Preliminary Decision); §39.420 of this title (relating to Transmittal of the Executive Director's Response to Comments and Decision); §39.421 of this title (relating to Notice of Commission Meeting to Evaluate a Request for Reconsideration or Hearing on an Application); §39.423 of this title (relating to Notice of Contested Case Hearing); §39.425 of this title (relating to Notice of Contested Enforcement Case Hearing); §39.503 of this title (relating to Application for Industrial or Hazardous Waste Facility Permit); §39.509 of this title (relating to Application for a Class 3 Modification of an Industrial or Hazardous Waste Permit); §39.1005 of this title (relating to Notice of Class 1 Modification of an Industrial Solid Waste or Hazardous Waste Permit); §39.1007 of this title (relating to Notice of Class 2 Modification of an Industrial Solid Waste or Hazardous Waste Permit); §50.113 of this title (relating to Applicability and Action on Application); §50.115 of this title (relating to Scope of Contested Case Hearings); §50.117 of this title (relating to Commission Actions); §50.119 of this title (relating to Notice of Commission Action, Motion for Rehearing); §55.200 of this title (relating to Applicability); §55.201 of this title (relating to Requests for Reconsideration or Contested Case Hearing); §55.203 of this title (relating to Determination of Affected Person); §55.205 of this title (relating to Request by Group or Association); §55.209 of this title (relating to Processing Requests for Reconsideration and Contested Case Hearing); §55.210 of this title (relating to Direct Referrals); §55.211 of this title (relating to Commission Action on Requests for Reconsideration and Contested Case Hearing); Chapter 281 of this title (relating to Applications Processing); §305.43 of this title (relating to Who Applies); §305.44 of this title (relating to Signatories to Applications); §305.47 of this title (relating to Retention of Application Data); §305.50 of this title (relating to Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order); §305.53 of this title (relating to Application Fee ); §§305.122 - 305.124 of this title (relating to Characteristics of Permits; Reservation in Granting Permit; and Acceptance of Permit, Effect); and §305.128 of this title (relating to Signatories to Reports).(c) Any investigation report to establish compliance monitoring or corrective action shall contain the information specified in the regulations contained in 40 Code of Federal Regulation (CFR) §270.14(c)(7) and (8), which are in effect as of September 9, 1987. The executive director may authorize, in writing, in advance the submittal of a proposed permit schedule for the submittal of an engineering feasibility plan as set forth in the regulations contained in 40 CFR §270.14(c)(7), which are in effect as of September 9, 1987. The executive director may also authorize, in writing, prior to the submittal of a complete permit application, the submittal of a schedule for the information required in the regulations contained in 40 CFR §270.14(c)(8)(iii) and (iv), as set forth in the regulations contained in 40 CFR §270.14(c)(8)(v), which are in effect as of September 9, 1987. The executive director may request information necessary to determine the appropriateness and extent of corrective action required by §335.167 of this title .(d) The executive director shall prepare a draft compliance plan unless the executive director recommends not to approve the plan. The draft compliance plan shall be available for public review, and notice that the executive director has prepared such a plan will be given pursuant to §39.503 of this title . The draft compliance plan shall be filed with the commission to be included in its consideration of the approval of a compliance plan.(e) The executive director shall prepare a technical summary which sets forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft compliance plan. The executive director shall send this summary together with the draft compliance plan to the applicant and, on request, to any other person. The summary shall include the following information, where applicable:(1) a brief description of the type of facility or activity which is the subject of the draft compliance plan;(2) the type and quantity of wastes, fluids, or pollutants which are being managed at the facility;(3) a brief summary of the basis for the conditions of the draft compliance plan, including references to applicable statutory or regulatory provisions;(4) a description of the procedures for reaching a final decision on the draft compliance plan, including procedures whereby the public may participate in the final decision; and(5) the name and telephone number of a person in the commission to contact for additional information.(f) The plan may be amended:(1) when the corrective action program specified in the plan under §335.165 of this title (relating to Compliance Monitoring Program) has not brought the regulated unit into compliance with the groundwater protection standard within a reasonable time;(2) when the plan requires a compliance monitoring program under §335.165 of this title, but monitoring data collected prior to permit issuance indicate that the facility is exceeding the groundwater protection standard. The sections of this chapter pertaining to major amendments shall be applicable to the foregoing amendments to the compliance plan.(g) Whenever a facility is subject to permitting under the Texas Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7, and is further required under §§335.156 - 335.167 of this title (relating to Applicability of Groundwater Monitoring and Response; Required Programs; Groundwater Protection Standard; Hazardous Constituents; Concentration Limits; Point of Compliance; Compliance Period; General Groundwater Monitoring Requirements; Detection Monitoring Program; and Corrective Action Program) to conduct compliance monitoring or corrective action, processing of the permit application for the facility and the establishment of the compliance plan shall be consolidated in one proceeding.(h) Nothing herein shall be construed to be inconsistent with the commission's authority under the Texas Solid Waste Disposal Act, Texas Civil Statutes, Article 4477-7, §8 and §8b.</content><note type="source"><p>Source Note: The provisions of this §305.401 adopted to be effective June 19, 1986, 11 TexReg 2601; amended to be effective July 14, 1987, 12 TexReg 2102; amended to be effective July 27, 1988, 13 TexReg 3514; amended to be effective August 8, 1999, 24 TexReg 5879; amended to be effective May 14, 2020, 45 TexReg 3109.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scO"><num value="O">SUBCHAPTER O</num><heading>ADDITIONAL CONDITIONS AND PROCEDURES FOR WASTEWATER DISCHARGE PERMITS AND SEWAGE SLUDGE PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scO/s305.531"><num value="305.531">§305.531</num><heading>Establishing and Calculating Additional Conditions and Limitations for TPDES Permits</heading><content>The following regulations contained in 40 Code of Federal Regulations, Part 122, Subpart C, Permit Conditions, and Part 124, Subpart D, Specific Procedures Applicable to Texas Pollutant Discharge Elimination System (TPDES) Permits, which are in effect as of the date TPDES program authorization, as amended, are adopted by reference.(1) §122.41(a)(1)--Conditions applicable to all permits. Section 122.41(a)(1) relates to the duty of a permittee to comply with standards or prohibitions for toxic pollutants and sewage sludge use and disposal established under Clean Water Act (CWA), §307(a) and §405(d).(2) §122.42--Additional conditions applicable to specified categories of NPDES permits. Section 122.42 provides additional conditions for existing manufacturing, commercial, mining, and silvicultural dischargers, and for publicly owned treatment works (POTWs).(3) §122.43(a) and (b)--Establishing permit conditions. Section 122.43 relates to conditions assuring compliance with all applicable requirements of the CWA and regulations.(4) §122.44--Establishing limitations, standards, and other permit conditions applicable to state NPDES programs. Section 122.44 relates to technology-based effluent limitations and standards, other effluent limitations and standards, reopener clauses, water quality standards and state requirements, toxic pollutants, notification levels, 24-hour reporting, durations for permits, monitoring requirements, pretreatment programs for POTWs, best management practices, reissued permits, privately owned treatment works, grants, sewage sludge, Coast Guard, and navigation.(5) §122.45--Calculating NPDES permit conditions. Section 122.45 relates to outfalls and discharge points, production-based limitations, metals, continuous discharges, noncontinuous discharges, mass limitations, pollutants in intake water, internal waste streams, and disposal of pollutants in intake water, internal waste streams, and disposal of pollutants into wells, into POTWs, or by land application.(6) §122.50--Disposal of pollutants into wells, into POTWs, or by land application.(7) §124.59--Conditions requested by the United States Army Corps of Engineers and other government agencies.</content><note type="source"><p>Source Note: The provisions of this §305.531 adopted to be effective October 8, 1990, 15 TexReg 5492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scO/s305.532"><num value="305.532">§305.532</num><heading>Adoption of Appendices by Reference</heading><content>The following appendices contained in 40 Code of Federal Regulations, Part 122, which are in effect as of the date of Texas pollutant discharge elimination system (TPDES) program authorization, as amended, are adopted by reference and apply only to TPDES permits:(1) Appendix A--NPDES Primary Industry Categories;(2) Appendix B--Criteria for Determining a Concentrated Animal Feeding Operation;(3) Appendix C--Criteria for Determining a Concentrated Aquatic Animal Production Facility;(4) Appendix D--NPDES Permit Application Testing Requirements.</content><note type="source"><p>Source Note: The provisions of this §305.532 adopted to be effective October 8, 1990, 15 TexReg 5492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scO/s305.533"><num value="305.533">§305.533</num><heading>Adoption of Environmental Protection Agency Issued Permits and Pretreatment Programs</heading><content>On the date of TNRCC assumption of the administration of the Texas Pollutant Discharge Elimination System (TPDES) permit program, after the Environmental Protection Agency (EPA) approves the TPDES permit program, and the issuance of national pollutant discharge elimination system (NPDES) permits is delegated from the EPA to the state, the state adopts all EPA permits and pretreatment programs, except that EPA shall retain jurisdiction over certain EPA-issued or proposed permits until their expiration which it has issued as may be specified in a state/federal Memorandum of Agreement. This provision does not affect the right of the EPA to issue NPDES permits for facilities which expired in the 12 months preceding the date of program assumption or to modify NPDES permits under Clean Water Act, §304(l). If the requirements of a state permit and an EPA permit issued to the same permittee or for the same facility are not of equal stringency, any requirements of the state-issued permit that are more stringent shall apply above and beyond those requirements contained in the corresponding EPA permit.</content><note type="source"><p>Source Note: The provisions of this §305.533 adopted to be effective October 8, 1990, 15 TexReg 5492; amended to be effective June 9, 1996, 21 TexReg 4800; amended to be effective December 1, 1997, 22 TexReg 11391.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scO/s305.534"><num value="305.534">§305.534</num><heading>New Sources and New Dischargers</heading><content>(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.(1) Existing source--Any source which is not a new source or a new discharger.(2) Facilities or equipment--Buildings, structures, process or production equipment, or machinery which form a permanent part of the new source and which will be used in its operation, if these facilities or equipment are of such value as to represent a substantial commitment to construct. These terms exclude facilities or equipment used in connection with feasibility, engineering, and design studies regarding the source or water pollution treatment for the source.(3) New source, new discharger, and site--See §305.2 of this title (relating to Definitions).(4) Source--Any building, structure, facility, or installation from which there is or may be a discharge of pollutants.(b) Criteria for new source determination.(1) Except as otherwise provided in an applicable new source performance standard, a source is a new source if it meets the definition of new source in §305.2 of this title (relating to Definitions) and:(A) it is constructed at a site at which no other source is located; or(B) it totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or(C) its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the director shall consider such factors as the extent to which the new facility is integrated with the existing plant, and the extent to which the new facility is engaged in the same general type of activity as the existing source.(2) A source meeting the requirements of paragraph (1) of this subsection is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger.(3) Construction on a site at which an existing source is located results in an amendment subject to §305.62 of this title (relating to Amendments) rather than a new source (or a new discharger) if the construction does not create a new building, structure, facility, or installation meeting the criteria of paragraph (1)(B) or (C) of this subsection but otherwise alters, replaces, or adds to existing process or production equipment.(4) Construction of a new source as defined under §305.2 of this title (relating to Definitions) has commenced if the owner or operator has:(A) begun, or caused to begin as part of a continuous on-site construction program:(i) any placement, assembly, or installation of facilities or equipment; or(ii) significant site preparation work including clearing, excavation or removal of existing buildings, structures, or facilities which is necessary for the placement, assembly, or installation of new source facilities or equipment; or(B) entered into a binding contractual obligation for the purchase of facilities or equipment which are intended to be used in its operation with a reasonable time. Options to purchase or contracts which can be terminated or modified without substantial loss, and contracts for feasibility engineering, and design studies do not constitute a contractual obligation under this paragraph.(c) Effect of compliance with new source performance standards. The provisions of this paragraph do not apply to existing sources which modify their pollution control facilities or construct new pollution control facilities and achieve performance standards, but which are neither new sources or new dischargers or otherwise do not meet the requirements of this paragraph.(1) Except as provided in paragraph (2) of this subsection, any new discharger, the construction of which commenced after October 18, 1972, or new source which meets the applicable promulgated new source performance standards before the commencement of discharge, may not be subject to any more stringent new source performance standards or to any more stringent technology-based standards under the Clean Water Act (CWA), §301(b)(2), for the soonest ending of the following periods:(A) 10 years from the date that construction is completed;(B) 10 years from the date the source begins to discharge process or other nonconstruction related wastewater; or(C) the period of depreciation or amortization of the facility for the purposes of the Internal Revenue Code of 1954, §167 or §169 (or both).(2) The protection from more stringent standards of performance afforded by paragraph (1) of this subsection does not apply to:(A) additional or more stringent permit conditions which are not technology-based; for example, conditions based on water quality standards, or toxic effluent standards or prohibitions under CWA, §307(a); or(B) additional permit conditions in accordance with 40 Code of Federal Regulation (CFR) §125.3, adopted by §308.1 of this title (relating to Criteria and Standard for Imposing Technology-Based Treatment Requirements) controlling toxic pollutants or hazardous substances which are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances when control of these pollutants has been specifically identified as the method to control the toxic pollutants or hazardous substances.(3) When a Texas pollutant discharge elimination system (TPDES) permit issued to a source with a protection period under paragraph (1) of this subsection will expire on or after the expiration of the protection period, that permit shall require the owner or operator of the source to comply with the requirements of CWA, §301, and any other then applicable requirements of CWA immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements may be allowed except when necessary to achieve compliance with requirements promulgated less than three years before the expiration of the protection period.(4) The owner or operator of a new source, a new discharger which commenced after August 13, 1979, or a recommencing discharger shall install and have in operating condition, and shall start up all pollution control equipment required to meet the conditions of its permits before beginning to discharge. Within the shortest feasible time (not to exceed 90 days), the owner or operator must meet all permit conditions. The requirements of this paragraph do not apply if the owner or operator is issued a permit containing a compliance schedule under 40 CFR §122.47(a)(2).(5) After the effective date of new source performance standards, it shall be unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source.</content><note type="source"><p>Source Note: The provisions of this §305.534 adopted to be effective October 8, 1990, 15 TexReg 5492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scO/s305.535"><num value="305.535">§305.535</num><heading>Bypasses from TPDES Permitted Facilities; Minimum Requirements for TPDES Permitted Facilities</heading><content>(a) Authorized bypass. The permittee may allow any bypass to occur from a TPDES permitted facility which does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provisions of subsections (b) and (c) of this section.(b) Notice.(1) Anticipated bypass. In accordance with the procedures described in Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions), if the permittee knows in advance of the need for a bypass, it shall submit prior notice under §35.24 of this title (relating to Application for Emergency or Temporary Order) if possible at least ten days before the date of the bypass.(2) Unanticipated bypass. The permittee shall submit notice of an unanticipated bypass as required in §305.125(9) of this title (relating to Standards Permit Conditions (24-hour notice)).(c) Prohibition of bypass.(1) Bypass of untreated or partially treated wastewater is prohibited from a TPDES permitted facility, and the commission may take enforcement action against the permittee for bypass, unless all of the following conditions are met:(A) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;(B) there were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance;(C) the permittee submitted notices as required under subsection (b) of this section.(2) The commission may approve an anticipated bypass in accordance with the procedures described in Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions), after considering its adverse effects, if the commission determines that it will meet the three conditions listed in paragraph (1) of this subsection.(d) Establishing Limitations, Standards, and Other Conditions in TPDES Permits.(1) Permits for POTWs shall contain technology-based treatment requirements based upon secondary treatment and "best practical waste treatment technology."(2) This paragraph describes the minimum level of effluent quality attainable by POTWs in terms of the parameters of five-day biochemical oxygen demand (BOD[sub]5[/sub]), total suspended solids (TSS), and pH. All requirements shall be achieved except as provided for in this subsection.(A) For BOD[sub]5[/sub], the 30-day average shall not exceed 30 mg/l and the 7-day average shall not exceed 45 mg/l. The 30-day average percent removal shall not be less than 85%. At the option of the commission, in lieu of the BOD[sub]5[/sub] parameter, the parameter five-day carbonaceous biochemical oxygen demand (CBOD[sub]5[/sub]) may be substituted. For CBOD[sub]5[/sub], the 30-day average shall not exceed 25 mg/l and the 7-day average shall not exceed 40 mg/l. The 30-day average percent removal shall not be less than 85%.(B) For TSS, the 30-day average shall not exceed 30 mg/l and the 7-day average shall not exceed 45 mg/l. The 30-day average percent removal shall not be less than 85%.(C) For pH, the effluent values for pH shall be maintained within the limits of 6.0 and 9.0 unless the POTW demonstrates that inorganic chemicals are not added to the waste stream as part of the treatment process and contributions from industrial sources do not cause the pH of the effluent to be less than 6.0 or greater than 9.0.(3) Treatment works shall be eligible for consideration of effluent limitations described for treatment equivalent to secondary treatment, as described in 40 CFR §133.105, if the BOD[sub]5[/sub] and TSS effluent concentrations consistently achievable through proper maintenance and operation of the treatment works exceed the minimum level of the effluent quality set forth in paragraph (2)(A) and (2)(B) of this subsection, a trickling filter or waste stabilization pond is used as the principal process, and the treatment works provide significant biological treatment of municipal wastewater.(4) The minimum TSS effluent quality concentration achievable with waste stabilization ponds may be adjusted in accordance with 40 CFR §133.103(c).(5) The commission is authorized to substitute either a lower percent removal requirement or a mass loading limit for a percent removal requirement set forth in this subsection provided the permittee satisfactorily demonstrates that:(A) The treatment works is consistently meeting, or will consistently meet, its permit effluent concentration limits but its percent effluent removal requirements cannot be met due to a less concentrated influent wastewater;(B) To meet the percent removal requirements, the treatment works would have to achieve significantly more stringent limitations than would otherwise be required by the concentration-based standards (where the term "significantly more stringent limitations" means BOD[sub]5[/sub] and TSS limitations necessary to meet the percent removal requirements of at least 5 mg/l more stringent than the otherwise applicable concentration-based limitations of this subsection, if such limits would, by themselves, force significant construction or other significant capital expenditure); and(C) The less concentrated influent wastewater is not the result of excessive inflow or infiltration (I/I). The determination of whether the less concentrated wastewater is not the result of excessive I/I will be based upon the following definitions and criteria:(i) Excessive infiltration/inflow is the quantity of infiltration/inflow which can be economically eliminated from a sewer system as determined in a cost-effectiveness analysis that compares the costs for correcting the infiltration/inflow conditions to the total costs for transportation and treatment of the infiltration/inflow.(ii) Nonexcessive infiltration is the quantity of flow which is less than 120 gallons per capita per day (domestic base flow and infiltration) or the quantity of infiltration which cannot be economically and effectively eliminated from a sewer system as determined in a cost-effectiveness analysis.(iii) Nonexcessive inflow is the maximum total flow rate during storm events which does not result in chronic operational problems related to hydraulic overloading of the treatment works or which does not result in a total flow of more than 275 gallons per capita per day (domestic base flow plus infiltration plus inflow). Chronic operational problems may include surcharging, backups, bypasses, and overflows.</content><note type="source"><p>Source Note: The provisions of this §305.535 adopted to be effective October 8, 1990, 15 TexReg 5492; amended to be effective December 1, 1997, 22 TexReg 11391; amended to be effective December 10, 1998, 23 TexReg 12440.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scO/s305.536"><num value="305.536">§305.536</num><heading>Requirements for Applications and Permits with Sludge Related Conditions</heading><content>(a) Sludge standards. The permittee shall comply with standards for sewage sludge use or disposal established under the Clean Water Act, §405(d) (40 Code of Federal Regulations (CFR), Part 503) within the time provided in the regulations that establish such standards, even if the permit has not yet been modified to incorporate the standards.(b) Additional contents of applications. In addition to all other requirements for information described in §305.48 of this title (relating to Additional Contents of Applications for Wastewater Discharge Permits), all treatment works treating domestic sewage shall submit to the executive director within the time frames established in subsection (c) of this section the information described in 40 CFR §501.15(a)(2)(viii)-(xii), as amended.(c) Time frames for applications.(1) Any publicly owned treatment works (POTW) with a currently effective Texas pollutant discharge elimination system (TPDES) permit shall submit the application information required by this subsection when its next application for TPDES permit renewal is due or within 120 days after promulgation of a standard for sewage sludge use or disposal applicable to POTWs' sludge use or disposal practices, whichever occurs first.(2) Any other existing treatment works treating domestic sewage not covered under subsection (c)(1) of this section shall submit an application to the executive director within 120 days after promulgation of a standard for sewage sludge use or disposal applicable to its sludge use or disposal practices or upon request of the executive director prior to the promulgation of an applicable standard for sewage sludge use or disposal if the executive director determines that a permit is necessary to protect public health and the environment from any adverse effect that may occur from toxic pollutants in sewage sludge.(3) Any treatment works treating domestic sewage that commences operations after promulgation of an applicable standard for sewage sludge use or disposal shall submit an application to the executive director at least 180 days prior to the date proposed for commencing operations.(d) Fact sheets. A fact sheet shall be prepared for every draft permit described in 40 CFR §501.15(d)(4), as amended. The executive director shall send this fact sheet to the applicant and, on request, to any other person. The fact sheet shall include the information required by 40 CFR §501.15(d)(4) as amended.</content><note type="source"><p>Source Note: The provisions of this §305.536 adopted to be effective October 8, 1990, 15 TexReg 5492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scO/s305.537"><num value="305.537">§305.537</num><heading>Reporting Requirements for Planned Physical Changes to a Permitted Facility</heading><content>Except to the extent that it is less stringent than the Texas Water Code or the rules of the commission, 40 Code of Federal Regulations §122.41(l)(1), which is in effect as of the date of Texas pollutant discharge elimination system (TPDES) program authorization, as amended, is adopted by reference.</content><note type="source"><p>Source Note: The provisions of this §305.537 adopted to be effective October 8, 1990, 15 TexReg 5492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scO/s305.538"><num value="305.538">§305.538</num><heading>Prohibitions for TPDES Permits</heading><content>No permit may be issued under the conditions prohibited in 40 Code of Federal Regulations §122.4, as amended.</content><note type="source"><p>Source Note: The provisions of this §306.538 adopted to be effective October 8, 1990, 15 TexReg 5492.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scO/s305.539"><num value="305.539">§305.539</num><heading>Additional Requirements for Shrimp Aquaculture Facilities Within the Coastal Zone</heading><content>(a) A commercial aquaculture facility, located within the coastal zone as delineated under rules of the Coastal Coordination Council, 31 TAC §503.1, and engaged in the production of shrimp that will discharge into water in the state shall comply with the following requirements.(1) The applicant shall apply to the executive director for an individual Texas pollutant discharge elimination system (TPDES) permit. The application, in addition to the information required by the application form, shall include:(A) a copy of the site-assessment environmental report submitted to the Texas Department of Agriculture (TDA) as part of the application for an aquaculture license; and(B) a copy of an emergency plan, approved by the Texas Parks and Wildlife Department (TPWD), for incorporation into the TPDES permit.(2) The applicant shall obtain an individual TPDES wastewater discharge permit in accordance with the requirements of this chapter before discharging into water in the state.(3) The applicant shall obtain an amendment to an individual TPDES permit prior to an increase in the amount of discharge above the levels allowed in the existing permit or a change in the nature of the discharge, except as otherwise provided by Chapter 35, Subchapter F of this title (relating to Water Quality Emergency and Temporary Orders).(4) The facility shall comply with the terms and conditions of its individual TPDES permit, and any quarantine conditions imposed by TPWD, except in cases where the facility is in imminent danger of overflow, flooding, or similar conditions that could result in either the release of exotic species that are regulated by the TPWD or that would result in the violation of a quarantine condition imposed by the TPWD. In such cases, the facility may discharge effluent in excess of the permitted flow rates, but only to the extent necessary to comply with an emergency plan that is approved by the TPWD, and the following provisions shall also apply.(A) The facility is not subject to effluent limitations, discharge flow limitations, and other effluent monitoring requirements in the permit for discharges that comply with an emergency plan approved by the TPWD.(B) A facility shall notify the appropriate TCEQ regional office at least 48 hours, or as soon as practicable, prior to initiating any action under an emergency plan in response to an emergency event, such as landfall of a hurricane, and shall notify the regional office as soon as practicable following initiation of the emergency plan.(C) The facility shall control discharges made under an emergency plan in the most environmentally sound manner that is practicable.(D) Within 30 days following initiation of the emergency plan, the facility shall submit a written report to the appropriate TCEQ regional office that includes the following information:(i) the reason for initiation of the plan;(ii) actions taken to prevent or mitigate impacts of the discharge to the receiving stream;(iii) volumes of wastewater discharged;(iv) the dates that discharges occurred; and(v) a general summary of receiving stream conditions at the time of the discharges.(E) The facility is responsible for demonstrating that the discharges were necessary and that conditions required initiation of the emergency plan.(5) A facility engaged in the propagation or rearing of shrimp which exhibit one or more manifestations of disease as defined by TPWD in 31 TAC §57.111 and §69.75 shall immediately report the apparent disease to the TCEQ regional office and Wastewater Permitting Section, and to TPWD, and shall comply with 31 TAC §57.114 and §69.77. The executive director shall be immediately notified of the results of any analyses by a shellfish disease specialist. Any actions which are deemed necessary by the discharger to prevent transmission of the disease to aquatic life endemic to waters in the state shall be implemented as soon as possible. The executive director may require suspension or termination of the discharge of effluent from infected portions of the facility as is necessary to protect aquatic life in the receiving stream from potential adverse effects.(6) A facility required to hold a permit from TPWD regulating the possession and sale of exotic fish and shellfish shall immediately notify the TCEQ regional office and Wastewater Permitting Section if the TPWD places the facility under quarantine condition. There shall be no discharge during the quarantine period, except upon approval by the executive director and TPWD. The executive director and TPWD may suspend or terminate the prohibition on discharge to allow for implementation of the facility's emergency plan approved by TPWD, following the lifting of the quarantine condition by TPWD, or based on other relevant factors.(7) Except as provided in paragraph (4) of this subsection, a facility shall comply with the terms and conditions in its individual TPDES permit, which shall include conditions related to suspended solids based on levels and measures adequate to prevent:(A) a potential significant adverse response in aquatic organisms, changes in flow patterns of receiving waters, or excessive sedimentation of bays; and(B) a potential significant adverse response in aquatic plants caused by reduction of light due to suspended solids in discharges.(b) All new, amendment, or renewal applications for an individual TPDES permits to which the requirements of this section apply are subject to review by a three-member application review committee comprised of one representative each from the executive director, TPWD, and TDA.(c) In considering whether to approve an application for a new, amended, or renewed individual TPDES permit for a commercial aquaculture facility located within the coastal zone and engaged in the production of shrimp, the commission shall consider all relevant factors, including:(1) the site-assessment environmental report provided by the applicant under subsection (a)(1)(A) of this section;(2) any sensitive aquatic habitat guidelines established by TPWD; and(3) any comments on the application provided by the three-member application review committee referred to in subsection (b) of this section.</content><note type="source"><p>Source Note: The provisions of this §305.539 adopted to be effective September 13, 2000, 25 TexReg 8985; amended to be effective October 11, 2007, 32 TexReg 7069.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scP"><num value="P">SUBCHAPTER P</num><heading>ADDITIONAL CONDITIONS FOR TEXAS POLLUTANT DISCHARGE ELIMINATION SYSTEM (TPDES) PERMITS</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scP/s305.541"><num value="305.541">§305.541</num><heading>Effluent Guidelines and Standards for Texas Pollutant Discharge Elimination System (TPDES) Permits</heading><content>(a) Except to the extent that they are less stringent than the Texas Water Code or the rules of the commission, the following federal regulations are adopted by reference, as amended:(1) 40 Code of Federal Regulations (CFR) Parts 400 - 402, 404 - 434, 436, 438 - 440, 443, 446 - 448, and 451 - 471, which are in effect as of the date of the Texas Pollutant Discharge Elimination System (TPDES) program authorization; (2) 40 CFR Part 435 (which is in effect as of the date of the TPDES program authorization for discharges subject to this part), except where 40 CFR Part 435 uses the term "produced water" the commission shall instead use the term "produced wastewater"; (3) 40 CFR Part 437 (Federal Register, Volume 68, December 22, 2003); (4) 40 CFR Part 441 (Federal Register, Volume 82, June 14, 2017); (5) 40 CFR Part 442 (Federal Register, Volume 65, August 14, 2000); (6) 40 CFR Part 444 Federal Register, Volume 65, January 27, 2000);(7) 40 CFR Part 445 Federal Register, Volume 65, January 19, 2000);(8) 40 CFR Part 449Federal Register, Volume 77, May 16, 2012); and (9) 40 CFR Part 450 Federal Register, Volume 79, March 6, 2014).(b) For the purposes of the commission's implementation of Texas Water Code, §26.131, "produced water" is defined as all wastewater associated with oil and gas exploration, development, and production activities, except hydrostatic test water and gas plant effluent, that is discharged into water in the state, including waste streams regulated by 40 CFR Part 435.</content><note type="source"><p>Source Note: The provisions of this §305.541 adopted to be effective October 8, 1990, 15 TexReg 5492; amended to be effective August 15, 2002, 27 TexReg 7163; amended to be effective November 25, 2010, 35 TexReg 10233; amended to be effective July 10, 2014, 39 TexReg 5188; amended to be effective February 26, 2015, 40 TexReg 816; amended to be effective July 19, 2018, 43 TexReg 4762; amended to be effective June 11, 2020, 45 TexReg 3775.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scP/s305.542"><num value="305.542">§305.542</num><heading>Pretreatment Standards</heading><content>40 Code of Federal Regulations (CFR) Part 403 (Federal Register, Volume 85, November 2, 2020), as amended, is adopted by reference, except 40 CFR §403.16 and §403.19, and except where 40 CFR §403.11 provides procedures for requesting and holding a public hearing, the commission shall instead require notice of and hold a public meeting. Such a public meeting shall be conducted by the executive director, shall be an opportunity for public comment, and shall otherwise follow the procedures described in 40 CFR §403.11.</content><note type="source"><p>Source Note: The provisions of this §305.542 adopted to be effective April 21, 2022, 47 TexReg 2016.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scP/s305.543"><num value="305.543">§305.543</num><heading>Toxic Pollutant Effluent Standards and Prohibitions</heading><content>Except to the extent that it is less stringent than the Texas Water Code or the rules of the commission, 40 Code of Federal Regulations Part 129, Subpart A, as in effect on the date of TPDES program authorization, as amended, is adopted by reference.</content><note type="source"><p>Source Note: The provisions of this §305.543 adopted to be effective April 21, 2022, 47 TexReg 2016.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scP/s305.544"><num value="305.544">§305.544</num><heading>Criteria and Standards for Texas Pollutant Discharge Elimination System Permits</heading><content>Except to the extent that they are less stringent than the Texas Water Code or the rules of the commission, the following federal regulations are adopted by reference, as amended:(1) 40 Code of Federal Regulations (CFR) Part 125, Subpart A, relating to imposing technology-based treatment requirements, as in effect on the date of Texas Pollutant Discharge Elimination System (TPDES) program authorization;(2) 40 CFR Part 125, Subpart B, relating to issuance of permits to aquaculture projects, as in effect on the date of TPDES program authorization;(3) 40 CFR Part 125, Subpart D, relating to determining fundamentally different factors (Federal Register, Volume 65, May 15, 2000);(4) 40 CFR Part 125, Subpart G, relating to modifying the secondary treatment requirements, as in effect on the date of TPDES program authorization;(5) 40 CFR Part 125, Subpart H, relating to determining alternative effluent limitations (Federal Register, Volume 65, May 15, 2000);(6) 40 CFR Part 125, Subpart I, relating to cooling water intake structures for new facilities (Federal Register, Volume 79, August 15, 2014);(7) 40 CFR Part 125, Subpart J, relating to relating to cooling water intake structures for existing facilities (Federal Register, Volume 79, August 15, 2014);(8) 40 CFR Part 125, Subpart M, relating to ocean discharges, as in effect on the date of TPDES program authorization; and(9) 40 CFR Part 125, Subpart N, relating to cooling water intake structures for new offshore oil and gas extraction facilities (Federal Register, Volume 71, June 16, 2006).</content><note type="source"><p>Source Note: The provisions of this §305.544 adopted to be effective April 21, 2022, 47 TexReg 2016.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scQ"><num value="Q">SUBCHAPTER Q</num><heading>PERMITS FOR BOILERS AND INDUSTRIAL FURNACES BURNING HAZARDOUS WASTE</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scQ/s305.571"><num value="305.571">§305.571</num><heading>Applicability</heading><content>(a) Owners and operators of new boilers and industrial furnaces (those not operating under the interim status standards of 40 Code of Federal Regulations (CFR) §266.103 and §335.224 of this title (relating to Additional Interim Status Standards for Burners)) are subject to §305.572 of this title (relating to Permit and Trial Burn Requirements). Owners and operators of existing boilers and industrial furnaces operating under the interim status standards of 40 CFR §266.103 and §335.224 of this title are subject to §305.573 of this title (relating to Interim Status and Trial Burn Requirements).(b) When an owner or operator of a cement kiln, lightweight aggregate kiln, solid fuel boiler, liquid fuel boiler, or hydrochloric acid production furnace becomes subject to Resource Conservation and Recovery Act permitting requirements after October 12, 2005 or when an owner or operator of an existing cement kiln, lightweight aggregate kiln, solid fuel boiler, liquid fuel boiler or hydrochloric acid production furnace demonstrates compliance with the air emission standards and limitations in 40 CFR Part 63, Subpart EEE, the requirements of this subchapter do not apply. The requirements of this section do apply, however, if the executive director determines certain provisions are necessary to comply with 40 CFR §266.102(e)(1) and (2)(iii) if the permittee or applicant elects to comply with 40 CFR §270.235(a)(1)(i) to minimize emissions of toxic compounds from startup, shutdown, and malfunction events; or if the facility is an area source and elects to comply with the 40 CFR §§266.105, 266.106, and 266.107 standards and associated requirements for particulate matter, hydrogen chloride and chlorine gas, and non-mercury metals; or the executive director may apply the provisions of this subchapter, on a case-by-case basis, and require a permittee or an applicant to submit information in order to establish permit conditions under §305.50(a)(15) or (16) and §305.127(1)(B)(iii) or (4)(A) of this title (relating to Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order; and Conditions to be Determined for Individual Permits).</content><note type="source"><p>Source Note: The provisions of this §305.571 adopted to be effective July 29, 1992, 17 TexReg 5016; amended to be effective November 15, 2001, 26 TexReg 9123; amended to be effective August 16, 2007, 32 TexReg 5003; amended to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scQ/s305.572"><num value="305.572">§305.572</num><heading>Permit and Trial Burn Requirements</heading><content>(a) The following regulations contained in 40 Code of Federal Regulations (CFR) Part 270 are adopted by reference, as amended and adopted in the CFR through August 1, 2005 (70 FedReg 44150) or as stated in paragraphs (1) - (5) of this subsection:(1) 40 CFR §270.66(b) - Permit Operating Periods for New Boilers and Industrial Furnaces, except that any permit amendment or modification shall proceed according to the applicable requirements of Subchapter D of this chapter (relating to Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits);(2) 40 CFR §270.66(c) - Requirements for Trial Burn Plans;(3) 40 CFR §270.66(d) - Trial Burn Procedures, except 40 CFR §270.66(d)(3), and except that all required submissions must be certified on behalf of the applicant by the signature of a person authorized pursuant to §305.44 of this title (relating to Signatories to Applications);(4) 40 CFR §270.66(e) - Special Procedures for DRE Trial Burns; and(5) 40 CFR §270.66(f) - Determinations Based on Trial Burn.(6) 40 CFR §270.235 - Options for Incinerators, Cement Kilns, Lightweight Aggregate Kilns, Solid Fuel Boilers, Liquid Fuel Boilers and Hydrochloric Acid Production Furnaces to Minimize Emissions from startup, shutdown, and malfunction events as amended through October 12, 2005 (70 FedReg 59402).(b) With regard to trial burn notice procedures, the chief clerk shall send notice to the state senator and representative who represent the area in which the facility is or will be located, and to the persons listed in §39.413 of this title (relating to Mailed Notice) announcing the scheduled commencement and completion dates for the trial burn. The notice shall meet the requirements of 40 CFR §270.66(d)(3)(i) and (ii) as amended through December 11, 1995 (60 FedReg 63417). The applicant may not commence the trial burn until after the chief clerk has issued such notice. This subsection applies to initial trial burns and all other trial burns except those that are to be conducted within 180 days after permit modification covering the trial burn.</content><note type="source"><p>Source Note: The provisions of this §305.572 adopted to be effective July 29, 1992, 17 TexReg 5016; amended to be effective November 20, 1996, 21 TexReg 10982; amended to be effective August 8, 1999, 24 TexReg 5879; amended to be effective August 16, 2007, 32 TexReg 5003; amended to be effective October 29, 2009, 34 TexReg 7315; amended to be effective May 14, 2020, 45 TexReg 3109.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scQ/s305.573"><num value="305.573">§305.573</num><heading>Interim Status and Trial Burn Requirements</heading><content>(a) For the purpose of determining feasibility of compliance with the performance standards of 40 Code of Federal Regulations (CFR) §§266.104 through 266.107 and of determining adequate operating conditions under 40 CFR §266.103 and §335.224 of this title (relating to Additional Interim Status Standards for Burners), applicants owning or operating existing boilers or industrial furnaces operated under the interim status standards of 40 CFR §266.103 and §335.224 of this title (relating to Additional Interim Status Standards for Burners) must either prepare and submit a trial burn plan for approval by the executive director and perform a trial burn in accordance with the approved trial burn plan and in accordance with 40 CFR §270.66 and §305.572 of this title (relating to Permit and Trial Burn Requirements) or submit other information as specified in 40 CFR §270.22(a)(6). The chief clerk shall provide notice of the executive director's intention to approve the trial burn, in accordance with the timing and distribution requirements of §305.572(b) of this title (relating to Determining Feasibility of Compliance and Adequate Operating Conditions). The contents of the notice must include: the name and telephone number of a contact person at the facility; the name and telephone number of a contact office at the permitting agency; the location where the trial burn plan and any supporting documents can be reviewed and copied; and a schedule of the activities that are required prior to permit issuance, including the anticipated time schedule for approval of the plan and the time period during which the trial burn would be conducted. Applicants who submit a trial burn plan and receive approval before submission of the part B permit application must complete the trial burn and submit the results specified in 40 CFR §270.66(f) with the Part B permit application. If completion of this process conflicts with the date set for submission of the Part B application, the applicant must contact the executive director to establish a later date for submission of the Part B application or the trial burn results. If the applicant submits a trial burn for approval by the executive director with Part B of the permit application, the approved trial burn must be conducted and the results submitted within a time period prior to permit issuance to be specified by the executive director.(b) Owners and operators who have obtained approval of trial burn plans pursuant to 40 CFR §270.66 prior to the effective date of this section may request executive director approval of the trial burn plan and the executive director may approve the trial burn plan, whether or not the trial burn has been conducted. If the executive director does not approve the trial burn plan, then the owner or operator must prepare and submit a trial burn plan and receive approval from the executive director, and then perform a trial burn in accordance with the approved trial burn plan and in accordance with 40 CFR §270.66 and §305.572 of this title (relating to Permit and Trial Burn Requirements) or submit other information as specified in 40 CFR §270.22(a)(6).</content><note type="source"><p>Source Note: The provisions of this §305.573 adopted to be effective July 29, 1992, 17 TexReg 5016; amended to be effective August 8, 1999, 24 TexReg 5869.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c305/scR"><num value="R">SUBCHAPTER R</num><heading>RESOURCE CONSERVATION AND RECOVERY ACT STANDARD PERMITS FOR STORAGE AND TREATMENT UNITS</heading><section identifier="/us/state/tx/tac/t30/p1/c305/scR/s305.650"><num value="305.650">§305.650</num><heading>General</heading><content>A Resource Conservation and Recovery Act (RCRA) standard permit is a special type of permit that authorizes the owner or operator of a facility to store and/or non-thermally treat hazardous waste. It is issued under 40 Code of Federal Regulations (CFR) Part 124, Subpart G and Subpart J, concerning Procedures for Decision Making, and this subchapter.</content><note type="source"><p>Source Note: The provisions of this §305.650 adopted to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scR/s305.651"><num value="305.651">§305.651</num><heading>Eligibility</heading><content>(a) An owner or operator may be eligible for a standard permit if:(1) An owner or operator generates hazardous waste and then stores or non-thermally treats the hazardous waste on site in containers, tanks, or containment buildings; or(2) An owner or operator receives hazardous waste generated off site by a generator under the same ownership as the receiving facility, and then stores or non-thermally treats the hazardous waste in containers, tanks, or containment buildings.(b) An owner or operator will be informed of eligibility when a decision is made on a permit application.</content><note type="source"><p>Source Note: The provisions of this §305.651 adopted to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scR/s305.652"><num value="305.652">§305.652</num><heading>Applicability</heading><content>The following sections of this title apply to a standard permit:(1) §305.42(b) of this title (relating to Application Required);(2) §305.44 of this title (relating to Signatories to Applications);(3) §305.45(a) of this title (relating to Contents of Application for Permit);(4) §305.50(a)(4) of this title (relating to Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order);(5) §305.51 of this title (relating to Revision of Applications for Hazardous Waste Permits);(6) §305.64 of this title (relating to Transfer of Permits);(7) §305.65 of this title (relating to Renewal);(8) §305.66 of this title (relating to Permit Denial, Suspension, and Revocation);(9) §305.67 of this title (relating to Revocation and Suspension Upon Request or Consent); and(10) §305.125 of this title (relating to Standard Permit Conditions).</content><note type="source"><p>Source Note: The provisions of this §305.652 adopted to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scR/s305.653"><num value="305.653">§305.653</num><heading>Applying for a Standard Permit</heading><content>(a) An owner or operator can apply for a standard permit by following the procedures in §39.503 of this title (relating to Application for Industrial or Hazardous Waste Facility Permit) and this subchapter.(b) The provisions of §39.503(f) of this title do not apply to a standard permit application unless a contested case hearing is requested by the executive director, applicant or Public Interest Counsel.</content><note type="source"><p>Source Note: The provisions of this §305.653 adopted to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scR/s305.654"><num value="305.654">§305.654</num><heading>Information Required</heading><content>The information in paragraphs (1) - (10) of this section will be the basis of a standard permit application. An owner or operator must submit the following information to the executive director when a application under §39.503 of this title (relating to Application for Industrial or Hazardous Waste Facility Permit) requesting coverage under a Resource Conservation Recovery Act standard permit is submitted:(1) The Part A information described in 40 Code of Federal Regulations (CFR) §270.13;(2) Materials required by §39.503 of this title;(3) Documentation of compliance with the location standards of 40 CFR §267.18 and §305.50(a)(10)(e) of this title (relating to Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order);(4) Information that allows the executive director to carry out obligations under other federal laws required in 40 CFR §270.3;(5) Solid waste management unit information required by 40 CFR §270.14(d);(6) A certification meeting the requirements of §305.655 of this title (relating to Certification Requirements), and an audit of the facility's compliance status with Chapter 335, Subchapter U of this title (relating to Standards for Owners and Operators of Hazardous Waste Facilities Operating Under a Standard Permit) as required by §305.655 of this title;(7) A closure plan prepared in accordance with §335.602(a)(6) of this title (relating to Standards);(8) The most recent closure cost estimate for the facility prepared under §335.602(a)(10) of this title and a copy of the documentation required to demonstrate financial assurance under §335.602(c) of this title. For a new facility, the owner or operator may gather the required documentation 60 days before the initial receipt of hazardous wastes;(9) If managed wastes are generated off-site, the waste analysis plan; and(10) If managed waste is generated from off-site, documentation showing that the waste generator and the off-site facility are under the same ownership.</content><note type="source"><p>Source Note: The provisions of this §305.654 adopted to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scR/s305.655"><num value="305.655">§305.655</num><heading>Certification Requirements</heading><content>(a) A signed certification must be submitted based on an audit of the facility's compliance with Chapter 335, Subchapter U of this title (relating to Standards for Owners and Operators of Hazardous Waste Facilities Operating Under a Standard Permit).(b) The certification must read: I certify under penalty of law that:(1) I have personally examined and am familiar with the report containing the results of an audit conducted of my facility's compliance status with Chapter 335, Subchapter U of this title, which supports this certification. Based on my inquiry of those individuals immediately responsible for conducting the audit and preparing the report, I believe that (include subparagraph (A) or (B) of this paragraph, whichever applies):(A) My existing facility complies with all applicable requirements of Chapter 335, Subchapter U of this title, and will continue to comply until the expiration of the permit; or(B) My facility has been designed, and will be constructed and operated to comply with all applicable requirements Chapter 335, Subchapter U of this title, and will continue to comply until expiration of the permit.(2) I will make all information that I am required to maintain at my facility by §§305.656 - 305.660 of this title (relating to Information Retention; Container Information; Tank Information; Equipment Information; and Air Emissions Control Information) readily available for review by the Texas Commission on Environmental Quality and the public; and(3) I will continue to make all information required by §§305.656 - 305.660 of this title available until the permit expires. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowingly violating Chapter 335, Subchapter U of this title.(c) The certification must be signed following the requirements of §305.44(a) of this title (relating to Signatories to Applications).(d) The certification must be based upon an audit that is conducted of the facility's compliance status with Chapter 335, Subchapter U of this title. A written audit report, signed and certified as accurate by the auditor, must be submitted to the executive director with the 40 CFR §124.202(b), concerning Notice of Intent.</content><note type="source"><p>Source Note: The provisions of this §305.655 adopted to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scR/s305.656"><num value="305.656">§305.656</num><heading>Information Retention</heading><content>The facility must keep the following information: (1) A general description of the facility. (2) Chemical and physical analyses of the hazardous waste and hazardous debris handled at the facility. At a minimum, these analyses must contain all the information known to treat or store the wastes properly under the requirements of Chapter 335, Subchapter U of this title (relating to Standards for Owners and Operators of Hazardous Waste Facilities Operating Under a Standard Permit). (3) A copy of the waste analysis plan required by 40 Code of Federal Regulations (CFR) §270.13(b). (4) A description of the security procedures and equipment required by 40 CFR §267.14. (5) A copy of the general inspection schedule required by 40 CFR §267.15(b). The inspection schedule must include the applicable requirements of 40 CFR §§267.174, 267.193, 267.195, 264.1033, 264.1052, 264.1053, 264.1058, and 264.1088. (6) A justification of any modification of the preparedness and prevention requirements of §335.602(a)(2) of this title (relating to Standards). (7) A copy of the contingency plan required by §335.602(a)(3) of this title. (8) A description of procedures, structures, or equipment used at the facility to: (A) prevent hazards in unloading operations (for example, use ramps, special forklifts); (B) prevent runoff from hazardous waste handling areas to other areas of the facility or the environment, or to prevent flooding (for example, with berms, dikes, trenches); (C) prevent contamination of water supplies; (D) mitigate effects of equipment failure and power outages; (E) prevent undue exposure of personnel to hazardous waste (for example, requiring protective clothing); and (F) prevent releases to atmosphere. (9) A description of precautions to prevent accidental ignition or reaction of ignitable, reactive, or incompatible wastes as required by 40 CFR §267.17. (10) Traffic pattern, estimated volume (number, types of vehicles) and control (for example, show turns across traffic lanes and stacking lanes; describe access road surfacing and load bearing capacity; show traffic control signals). (11) An outline of both the introductory and continuing training programs that will be used to prepare employees to operate or maintain the facility safely as required by 40 CFR §267.16 and a brief description of how training will be designed to meet actual job tasks under 40 CFR §267.16(a)(3) requirements. (12) A copy of the closure plan required by 40 CFR §267.112. Include, where applicable, as part of the plans, specific requirements in 40 CFR §§267.176, 267.201, and 267.1108. (13) The most recent closure cost estimate for the facility prepared under 40 CFR §267.142 and a copy of the documentation required to demonstrate financial assurance under 40 CFR §267.143. For a new facility, the required documentation must be gathered 60 days before the initial receipt of hazardous wastes. (14) Where applicable, a copy of the insurance policy or other documentation that complies with the liability requirements of 40 CFR §267.147. For a new facility, documentation showing the amount of insurance meeting the specification of 40 CFR §267.147(a) that is planned to be in effect before initial receipt of hazardous waste for treatment or storage. (15) Where appropriate, proof of coverage by a state financial mechanism, as required by 40 CFR §267.149 or §267.150. (16) A topographic map showing a distance of 1,000 feet around the facility at a scale of 2.5 centimeters (one inch) equal to not more than 61.0 meters (200 feet). The map must show elevation contours. The contour interval must show the pattern of surface water flow in the vicinity of and from each operational unit of the facility. For example, contours with an interval of 1.5 meters (five feet), if relief is greater than 6.1 meters (20 feet), or an interval of 0.6 meters (two feet), if relief is less than 6.1 meters (20 feet). If the facility is in a mountainous area, large contour intervals should be used to adequately show topographic profiles of facilities. The map must clearly show the following: (A) map scale and date; (B) 100-year flood plain area; (C) surface waters including intermittent streams; (D) surrounding land uses (residential, commercial, agricultural, recreational); (E) a wind rose (i.e., prevailing wind-speed and direction); (F) orientation of the map (north arrow); (G) legal boundaries of the facility site; (H) access control (fences, gates); (I) injection and withdrawal wells both on site and off site; (J) buildings; treatment, storage, or disposal operations; or other structures (recreation areas; runoff control systems; access and internal roads; storm, sanitary, and process sewerage systems; loading and unloading areas; fire control facilities, etc.); (K) barriers for drainage or flood control; and (L) location of operational units within the facility, where hazardous waste is (or will be) treated or stored. (Include equipment cleanup areas.)</content><note type="source"><p>Source Note: The provisions of this §305.656 adopted to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scR/s305.657"><num value="305.657">§305.657</num><heading>Container Information</heading><content>If containers are used to store or treat hazardous waste, the following information must be kept at the facility:(1) A description of the containment system to demonstrate compliance with the container storage area provisions of 40 Code of Federal Regulations (CFR) §267.173. This description must show the following:(A) basic design parameters, dimensions, and materials of construction;(B) how the design promotes drainage or how containers are kept from contact with standing liquids in the containment system;(C) capacity of the containment system relative to the number and volume of containers to be stored;(D) provisions for preventing or managing run-on; and(E) how accumulated liquids can be analyzed and removed to prevent overflow.(2) For storage areas that store containers holding wastes that do not contain free liquids, a demonstration of compliance with 40 CFR §267.173(c), including:(A) test procedures and results or other documentation or information to show that the wastes do not contain free liquids; and(B) a description of how the storage area is designed or operated to drain and remove liquids or how containers are kept from contact with standing liquids.(3) Sketches, drawings, or data demonstrating compliance with 40 CFR §267.174 (location of buffer zone (15 meters or 50 feet) and containers holding ignitable or reactive wastes) and 40 CFR §267.175(c) (location of incompatible wastes in relation to each other), where applicable.(4) Where incompatible wastes are stored or otherwise managed in containers, a description of the procedures used to ensure compliance with 40 CFR §267.175(a) and (b) and §267.17(b) and (c).(5) Information on air emission control equipment as required by 40 CFR §270.315.</content><note type="source"><p>Source Note: The provisions of this §305.657 adopted to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scR/s305.658"><num value="305.658">§305.658</num><heading>Tank Information</heading><content>If tanks are used to store or treat hazardous waste, the following information must be kept at the facility: (1) A written assessment that is reviewed and certified by a Texas licensed professional engineer on the structural integrity and suitability for handling hazardous waste of each tank system, as required under 40 Code of Federal Regulations (CFR) §267.191 and §267.192; (2) Dimensions and capacity of each tank; (3) Description of feed systems, safety cutoff, bypass systems, and pressure controls (e.g., vents); (4) A diagram of piping, instrumentation, and process flow for each tank system; (5) A description of materials and equipment used to provide external corrosion protection, as required under 40 CFR §267.191; (6) For new tank systems, a detailed description of how the tank system(s) will be installed in compliance with 40 CFR §267.192 and §267.194; (7) Detailed plans and description of how the secondary containment system for each tank system is or will be designed, constructed, and operated to meet the requirements of 40 CFR §267.195 and §267.196; (8) Description of controls and practices to prevent spills and overflows, as required under 40 CFR §267.198; (9) For tank systems in which ignitable, reactive, or incompatible wastes are to be stored or treated, a description of how operating procedures and tank system and facility design will achieve compliance with the requirements of 40 CFR §267.202 and §267.203; and (10) Information on air emission control equipment as required by 40 CFR §270.315.</content><note type="source"><p>Source Note: The provisions of this §305.658 adopted to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scR/s305.659"><num value="305.659">§305.659</num><heading>Equipment Information</heading><content>If the facility has equipment to which 40 Code of Federal Regulations (CFR) Part 264, Subpart BB applies, the following information must be kept at the facility: (1) For each piece of equipment to which 40 CFR Part 264, Subpart BB applies: (A) equipment identification number and hazardous waste management unit identification; (B) approximate locations within the facility (e.g., identify the hazardous waste management unit on a facility plot plan); (C) type of equipment (e.g., a pump or a pipeline valve); (D) percent by weight of total organics in the hazardous waste stream at the equipment; (E) hazardous waste state at the equipment (e.g., gas/vapor or liquid); and (F) method of compliance with the standard (e.g., monthly leak detection and repair, or equipped with dual mechanical seals). (2) For facilities that cannot install a closed-vent system and control device to comply with 40 CFR Part 264, Subpart BB on the effective date that the facility becomes subject to the Subpart BB provisions, an implementation schedule as specified in 40 CFR §264.1033(a)(2). (3) Documentation that demonstrates compliance with the equipment standards in 40 CFR §264.1052 and §264.1059. This documentation must contain the records required under 40 CFR §264.1064. (4) Documentation to demonstrate compliance with 40 CFR §264.1060 must include the following information: (A) a list of all information references and sources used in preparing the documentation; (B) records, including the dates, of each compliance test required by 40 CFR §264.1033(j); (C) a design analysis, specifications, drawings, schematics, and piping and instrumentation diagrams based on the appropriate sections of "Course 415: Control of Gaseous Emissions" (incorporated by reference as specified in 40 CFR §260.11) or other engineering texts acceptable to the executive director that present basic control device design information. The design analysis must address the vent stream characteristics and control device operation parameters as specified in 40 CFR §264.1035(b)(4)(iii); (D) a statement signed and dated certifying that the operating parameters used in the design analysis reasonably represent the conditions that exist when the hazardous waste management unit is operating at the highest load or capacity level reasonably expected to occur; and (E) a statement signed and dated certifying that the control device is designed to operate at an efficiency of 95% by weight or greater.</content><note type="source"><p>Source Note: The provisions of this §305.659 adopted to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scR/s305.660"><num value="305.660">§305.660</num><heading>Air Emissions Control Information</heading><content>If an owner or operator has air emission control equipment subject to 40 Code of Federal Regulations (CFR) Part 264, Subpart CC, the following information must be kept at the facility:(1) Documentation for each floating roof cover installed on a tank subject to 40 CFR §264.1084(d)(1) or (2) that includes information prepared or the cover manufacturer/vendor provided describing the cover design, and certification that the cover meets applicable design specifications listed in 40 CFR §264.1084(e)(1) or (f)(1).(2) Identification of each container area subject to the requirements of 40 CFR Part 264, Subpart CC and certification that the requirements of this subpart are met.(3) Documentation for each enclosure used to control air pollutant emissions from tanks or containers under requirements of 40 CFR §264.1084(d)(5) or §264.1086(e)(1)(ii). Records must be included for the most recent set of calculations and measurements performed to verify that the enclosure meets the criteria of a permanent total enclosure as specified in "Procedure T - Criteria for and Verification of a Permanent or Temporary Total Enclosure" under 40 CFR §52.741, Appendix B.(4) Documentation for each closed-vent system and control device installed under requirements of 40 CFR §264.1087 that includes design and performance information as specified in 40 CFR §270.24(c) and (d).(5) An emission monitoring plan for both Method 21 in 40 CFR Part 60, Appendix A and control device monitoring methods. The following information must be included in the plan: monitoring point(s), monitoring methods for control devices, monitoring frequency, procedures for documenting exceedences, and procedures for mitigating noncompliances.</content><note type="source"><p>Source Note: The provisions of this §305.660 adopted to be effective October 29, 2009, 34 TexReg 7315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c305/scR/s305.661"><num value="305.661">§305.661</num><heading>Modifying a Standard Permit</heading><content>A Resource Conservation and Recovery Act standard permit can be modified by following the procedures found in 40 Code of Federal Regulations §§124.211 - 124.214 and §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee).</content><note type="source"><p>Source Note: The provisions of this §305.661 adopted to be effective October 29, 2009, 34 TexReg 7315.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c307"><num value="307">CHAPTER 307</num><heading>TEXAS SURFACE WATER QUALITY STANDARDS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c307/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c307/sc/s307.1"><num value="307.1">§307.1</num><heading>General Policy Statement</heading><content>It is the policy of this state and the purpose of this chapter to maintain the quality of water in the state consistent with public health and enjoyment, propagation and protection of terrestrial and aquatic life, operation of existing industries, and taking into consideration economic development of the state; to encourage and promote development and use of regional and area-wide wastewater collection, treatment, and disposal systems to serve the wastewater disposal needs of the citizens of the state; and to require the use of all reasonable methods to implement this policy.</content><note type="source"><p>Source Note: The provisions of this §307.1 adopted to be effective April 29, 1988, 13 TexReg 1784; amended to be effective July 22, 2010, 35 TexReg 6294.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c307/sc/s307.2"><num value="307.2">§307.2</num><heading>Description of Standards</heading><content>(a) Contents of the Texas Surface Water Quality Standards. (1) Section 307.1 of this title (relating to General Policy Statement) contains the general standards policy of the commission. (2) This section lists the major sections of the standards, defines basin classification categories, describes justifications for standards modifications, and provides the effective dates of the rules. (3) Section 307.3 of this title (relating to Definitions and Abbreviations) defines terms and abbreviations used in the standards. (4) Section 307.4 of this title (relating to General Criteria) lists the general criteria that are applicable to all surface waters of the state unless specifically excepted in §307.8 of this title (relating to Application of Standards) or §307.9 of this title (relating to Determination of Standards Attainment). (5) Section 307.5 of this title (relating to Antidegradation) describes the antidegradation policy and implementation procedures. (6) Section 307.6 of this title (relating to Toxic Materials) establishes criteria and control procedures for specific toxic substances and total toxicity. (7) Section 307.7 of this title (relating to Site-Specific Uses and Criteria) defines appropriate water uses and supporting criteria for site-specific standards. (8) Section 307.8 of this title sets forth conditions when portions of the standards do not apply - such as in mixing zones or below critical low-flows. (9) Section 307.9 of this title describes sampling and analytical procedures to determine standards attainment. (10) Section 307.10 of this title (relating to Appendices A - G) lists site-specific standards and supporting information for classified segments (Appendices A and C), water bodies that are sole-source surface drinking water supplies (Appendix B), site-specific uses and criteria for unclassified water bodies (Appendix D), site-specific toxic criteria that may be derived for any water in the state (Appendix E), chlorophyll a criteria for selected reservoirs (Appendix F), and site-specific recreational uses and criteria for unclassified water bodies (Appendix G). Specific appendices are as follows: (A) Appendix A - Site-specific Uses and Criteria for Classified Segments; (B) Appendix B - Sole-source Surface Drinking Water Supplies; (C) Appendix C - Segment Descriptions; (D) Appendix D - Site-specific Uses and Criteria for Unclassified Water Bodies; (E) Appendix E - Site-specific Toxic Criteria; (F) Appendix F - Site-specific Nutrient Criteria for Selected Reservoirs; and (G) Appendix G - Site-specific Recreational Uses and Criteria for Unclassified Water Bodies. (b) Applicability. The Texas Surface Water Quality Standards apply to surface waters in the state - including wetlands. (c) Classification of surface waters. The major surface waters of the state are classified as segments for purposes of water quality management and designation of site-specific standards. Classified segments are aggregated by basin, and basins are categorized as follows: (1) River basin waters. Surface inland waters comprising the major rivers and their tributaries, including listed impounded waters and the tidal portion of rivers to the extent that they are confined in channels. (2) Coastal basin waters. Surface inland waters, including listed impounded waters but exclusive of paragraph (1) of this subsection, discharging, flowing, or otherwise communicating with bays or the gulf, including the tidal portion of streams to the extent that they are confined in channels. (3) Bay waters. All tidal waters, exclusive of those included in river basin waters, coastal basin waters, and gulf waters. (4) Gulf waters. Waters that are not included in or do not form a part of any bay or estuary but that are a part of the open waters of the Gulf of Mexico to the limit of the state's jurisdiction. (d) Modification of standards. (1) The commission reserves the right to amend these standards following the completion of special studies. (2) Any errors in water quality standards resulting from clerical errors or errors in data may be corrected by the commission through amendment of the affected standards. Water quality standards not affected by such clerical errors or errors in data remain valid until changed by the commission. (3) The narrative provisions, presumed uses, designated uses, and numerical criteria of the Texas Surface Water Quality Standards may be amended for a specific water body to account for local conditions. A site-specific standard is an explicit amendment to this chapter, and adoption of a site-specific standard requires the procedures for public notice and hearing established under the Texas Water Code, §26.024 and §26.025. An amendment that establishes a site-specific standard requires a use-attainability analysis that demonstrates that reasonably attainable water-quality related uses are protected. Upon adoption, site-specific amendments to the standards will be listed in §307.10 of this title. (4) Factors that may justify the development of site-specific standards are described in §307.4 and §§307.6 - 307.8 of this title. (5) Temporary variance. When scientific information indicates that a site-specific standards amendment is justified, the commission may allow a corresponding temporary variance to the water quality standards in a permit for a discharge of wastewater or stormwater. (A) A temporary variance is only applicable to an existing permitted discharge. (B) A permittee may apply for a temporary variance prior to or during the permit application process. The temporary variance request must be included in a public notice during the permit application process. An opportunity for public comment is provided, and the request may be considered in any public hearing on the permit application. (C) A temporary variance for a Texas Pollutant Discharge Elimination System permit also requires review and approval by the United States Environmental Protection Agency (EPA) during the permitting process. (D) The permit must contain effluent limitations that protect existing uses and preclude degradation of existing water quality, and the term of the permit must not exceed three years. Effluent limitations that are needed to meet the existing standards are listed in the permit and are effective immediately as final permit effluent limitations in the succeeding permit, unless the permittee fulfills the requirements of the conditions for the variance in the permit. (E) When the permittee has complied with the terms of the conditions in the temporary variance, then the succeeding permit may include a permit schedule to meet standards in accordance with subsection (f) of this section. The succeeding permit may also extend the temporary variance in accordance with subsection (f) of this section in order to allow additional time for a site-specific standard to be adopted in this chapter. This extension can be approved by the commission only after a site-specific study that supports a standards change is completed and the commission agrees the completed study supports a change in the applicable standard(s). (F) Site-specific standards that are developed under a temporary variance must be expeditiously proposed and publicly considered for adoption at the earliest opportunity. (e) Standards implementation procedures. Provisions for implementing the water quality standards are described in a document entitled Procedures to Implement the Texas Surface Water Quality Standards (RG-194) as amended and approved by the Texas Commission on Environmental Quality and EPA. (f) Permit schedules to meet standards. Upon permit amendment or permit renewal, the commission may establish interim effluent limitations to allow a permittee time to modify effluent quality in order to attain final effluent limitations. The duration of any interim effluent limitations may not be longer than three years from the effective date of the permit issuance, except in accordance with a temporary variance as described in subsection (d)(5) of this section. (g) Temporary standards. Where a criterion or designated use is not attained and cannot be attained for one or more of the reasons listed in 40 Code of Federal Regulations (CFR) §131.10(g), or to facilitate restoration or reconfiguration activities that preclude the attainment of the designated use or criterion, then a temporary standard for specific water bodies or permittees may be adopted in §307.10 of this title as an alternative to changing uses. (1) A temporary standard identifies the interim numerical criteria or use that applies during the existence of the temporary standard. When a temporary standard is adopted for permittees or water bodies, the temporary standard must be expressed as one of the following: (A) The interim effluent condition that reflects the greatest pollutant reduction achievable; (B) Or if no additional feasible pollutant control technology can be identified, the interim effluent condition that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the temporary standard is adopted, and implementation of a remediation plan as specified in the Procedures to Implement the Texas Surface Water Quality Standards (RG-194); or(C) The highest attainable interim criterion.(2) A temporary standard must be adopted in accordance with the provisions of subsection (d)(3) of this section. Once adopted by the commission and approved by EPA, a temporary standard is the applicable standard for the purposes of developing wastewater discharge permit limits and issuing certifications specified in the federal Clean Water Act, §401 and Chapter 279 of this title (relating to Water Quality Certification). (3) Specific reasons and additional procedures for justifying a temporary standard are provided in the Procedures to Implement the Texas Surface Water Quality Standards (RG-194). A temporary standard must identify the water body or permittee to which the temporary standard applies. A temporary standard does not exempt any discharge from compliance with applicable technology-based effluent limits. (4) A temporary standard must be reevaluated every five years at a minimum, which may be conducted through the permit process or a triennial review of the Texas Surface Water Quality Standards. If the reevaluation is not submitted to EPA within 30 days of completion, subsequent federal Clean Water Act activities will be evaluated using the applicable existing underlying water quality standards.(5) The term of a temporary standard is expressed as an interval of time from the date of EPA approval or a specific date cited in the temporary standard. If the continuance of a temporary standard is sufficiently justified, it can be renewed during revisions of the Texas Surface Water Quality Standards. When a temporary standard expires, subsequent discharge permits are issued to meet the applicable existing water quality standards. (6) A temporary standard must preclude the degradation of existing water quality unless degradation is necessary to facilitate restoration or reconfiguration activities as specified in this section.(h) Effective date of standards. Except as provided in 40 CFR §131.21 (EPA review and approval of water quality standards), this chapter becomes effective 20 days after the date the chapter is filed in the Office of the Secretary of State. As to actions covered by 40 CFR §131.21, the rules become effective upon approval by EPA. (i) Effect of conflict or invalidity of rule. (1) If any provision of this chapter or its application to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of the provisions contained in this chapter that can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable. (2) To the extent of any irreconcilable conflict between provisions of this chapter and other rules of the commission, the provisions of this chapter supersede.</content><note type="source"><p>Source Note: The provisions of this §307.2 adopted to be effective July 10, 1991, 16 TexReg 3400; amended to be effective July 13, 1995, 20 TexReg 4701; amended to be effective August 17, 2000, 25 TexReg 7722; amended to be effective July 22, 2010, 35 TexReg 6294; amended to be effective March 6, 2014, 39 TexReg 1450; amended to be effective March 1, 2018, 43 TexReg 1102; amended to be effective September 29, 2022, 47 TexReg 6216.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c307/sc/s307.3"><num value="307.3">§307.3</num><heading>Definitions and Abbreviations</heading><content>(a) Definitions. The following words and terms, when used in this chapter, have the defined meanings, unless the context clearly indicates otherwise. (1) Acute toxicity--Toxicity that exerts a stimulus severe enough to rapidly induce an effect. The duration of exposure applicable to acute toxicity is typically 96 hours or less. Tests of total toxicity normally use lethality as the measure of acute impacts. (Direct thermal impacts are excluded from definitions of toxicity.) (2) Ambient--Refers to the existing water quality in a particular water body. (3) Aquatic vegetation--Refers to aquatic organisms, i.e., plant life, found in the water and includes phytoplankton; algae, both attached and floating; and vascular and nonvascular plants, both rooted and floating. (4) Attainable use--A use that can be reasonably achieved by a water body in accordance with its physical, biological, and chemical characteristics whether it is currently meeting that use or not. Guidelines for the determination and review of attainable uses are provided in the standards implementation procedures. The designated use, existing use, or presumed use of a water body may not necessarily be the attainable use. (5) Background--Refers to the water quality in a particular water body that would occur if that water body were relatively unaffected by human activities. (6) Bedslope--Stream gradient, or the extent of the drop in elevation encountered as the stream flows downhill. One measure of bedslope is the elevation decline in meters over the stream distance in kilometers. (7) Best management practices--Schedules of activities, maintenance procedures, and other management practices to prevent or reduce the pollution of water in the state from point and nonpoint sources, to the maximum extent practicable. Best management practices also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage. (8) Bioaccumulative--Describes a chemical that is taken up by aquatic organisms from water directly or through the consumption of food containing the chemical. (9) Bioaccumulation factor--A unitless value describing the degree to which a chemical can be concentrated in the tissues of an organism in the aquatic environment and that is absorbed through all routes of exposure, including the food chain. The bioaccumulation factor is the ratio of the concentration of a chemical in the tissue of an aquatic organism to the concentration of the chemical dissolved in ambient water at the site of sampling.(10) Bioconcentration factor--A unitless value describing the degree to which a chemical can be concentrated in the tissues of an organism in the aquatic environment and that is absorbed directly from the water. The bioconcentration factor is the ratio of a chemical's concentration in the tissue of an organism compared to that chemical's average concentration in the surrounding water. (11) Biological integrity--The species composition, diversity, and functional organization of a community of organisms in an environment relatively unaffected by pollution. (12) Biotic ligand model--A metal bioavailability model that uses receiving water body characteristics to develop site-specific water quality criteria. (13) Chronic toxicity--Toxicity that continues for a long-term period after exposure to toxic substances. Chronic exposure produces sub-lethal effects, such as growth impairment and reduced reproductive success, but it may also produce lethality. The duration of exposure applicable to the most common chronic toxicity test is seven days or more. (14) Classified--Refers to a water body that is listed and described in Appendices A and C of §307.10 of this title (relating to Appendices A - G). Site-specific uses and criteria for classified water bodies are listed in Appendix A of §307.10 of this title. (15) Coastal recreation waters--Marine coastal waters including oceans, coastal estuaries, and bays designated as primary contact recreation. Waters upstream of an unimpaired natural connection to the open sea or tidal inland waters are not considered coastal recreation waters (e.g., tidal rivers or streams).(16) Commission--Texas Commission on Environmental Quality. (17) Criteria--Water quality conditions that are to be met in order to support and protect desired uses, i.e., existing, designated, attainable, and presumed uses. (18) Critical low-flow--Low-flow condition that consists of the seven-day, two-year low-flow or the alternative low-flows for spring-fed streams as discussed in §307.8(a)(2) of this title (relating to Application of Standards) and below which some standards do not apply. (19) Designated use--A use that is assigned to specific water bodies in Appendix A, D, or G of §307.10 of this title (relating to Appendices A - G). Typical uses that may be designated for specific water bodies include domestic water supply, categories of aquatic life use, recreation categories, and aquifer protection. (20) Discharge permit--A permit issued by the state or a federal agency to discharge treated effluent or cooling water into waters of the state. (21) Dry weather flows--Sustained or typical dry, warm-weather flows between rainfall events, excluding unusual antecedent conditions of drought or wet weather. (22) EC50 --The concentration of a toxicant that produces an adverse effect on 50% of the organisms tested in a specified time period. (23) E. coli--Escherichia coli, a subgroup of fecal coliform bacteria that is present in the intestinal tracts and feces of warm-blooded animals. It is used as an indicator of the potential presence of pathogens. (24) Effluent--Wastewater discharged from any point source prior to entering a water body. (25) Enterococci--A subgroup of fecal streptococci bacteria (mainly Streptococcus faecalis and Streptococcus faecium that is present in the intestinal tracts and feces of warm-blooded animals. It is used as an indicator of the potential presence of pathogens. (26) Epilimnion--The upper mixed layer of a lake (including impoundments, ponds, and reservoirs). (27) Existing use--A use that is currently being supported by a specific water body or that was attained on or after November 28, 1975. (28) Fecal coliform--A portion of the coliform bacteria group that is present in the intestinal tracts and feces of warm-blooded animals; heat tolerant bacteria from other sources can sometimes be included. It is used as an indicator of the potential presence of pathogens. (29) Freshwaters--Inland waters that exhibit no measurable elevation changes due to normal tides. (30) Halocline--A vertical gradient in salinity under conditions of density stratification that is usually recognized as the point where salinity exhibits the greatest difference in the vertical direction. (31) Harmonic mean flow--A measure of mean flow in a water course that is calculated by summing the reciprocals of the individual flow measurements, dividing this sum by the number of measurements, and then calculating the reciprocal of the resulting number. (32) Incidental fishery--A level of fishery that applies to water bodies that are not considered to have a sustainable fishery but do have an aquatic life use of limited, intermediate, high, or exceptional. (33) Industrial cooling impoundment--An impoundment that is owned or operated by, or in conjunction with, the water rights permittee, and that is designed and constructed for the primary purpose of reducing the temperature and removing heat from an industrial effluent. (34) Industrial cooling water area--A designated area associated with a permitted wastewater discharge where numerical temperature criteria are not applicable in accordance with conditions and requirements specified in §307.4(f) of this title (relating to General Criteria) and §307.8(b) of this title (relating to Application of Standards). (35) Intermittent stream--A stream that has a period of zero flow for at least one week during most years. Where flow records are available, a stream with a seven-day, two-year low-flow of less than 0.1 cubic feet per second is considered intermittent. (36) Intermittent stream with perennial pools--An intermittent stream that maintains persistent pools even when flow in the stream is less than 0.1 cubic feet per second. (37) LC50 --The concentration of a toxicant that is lethal (fatal) to 50% of the organisms tested in a specified time period. (38) Main pool station--A monitoring station that is located in the main body of a reservoir near the dam and not located in a cove or in the riverine portion or transition zone of a reservoir. (39) Method detection limit--The minimum concentration of a substance that can be measured and reported with 99% confidence that the analyte concentration is distinguishable from the method blank results and is determined from analysis of a sample in a given matrix containing the analyte. The method detection limit is estimated in accordance with 40 Code of Federal Regulations Part 136, Appendix B. (40) Minimum analytical level--The lowest concentration that a particular substance can be quantitatively measured with a defined accuracy and precision level using approved analytical methods. The minimum analytical level is not the published method detection limit for a United States Environmental Protection Agency-approved analytical method that is based on laboratory analysis of the substance in reagent (distilled) water. The minimum analytical level is based on analyses of the analyte in the matrix of concern (e.g., wastewater effluents). The commission establishes general minimum analytical levels that are applicable when information on matrix-specific minimum analytical levels is unavailable. (41) Mixing zone--The area contiguous to a permitted discharge where mixing with receiving waters takes place and where specified criteria, as listed in §307.8(b)(1) of this title (relating to Application of Standards), can be exceeded. Acute toxicity to aquatic organisms is not allowed in a mixing zone, and chronic toxicity to aquatic organisms is not allowed beyond a mixing zone. (42) Noncontact recreation--Activities that do not involve a significant risk of water ingestion, such as those with limited body contact incidental to shoreline activity, including birding, hiking, and biking. Noncontact recreation use may also be assigned where primary and secondary contact recreation activities should not occur because of unsafe conditions, such as ship and barge traffic. (43) Nonpersistent--Describes a toxic substance that readily degrades in the aquatic environment, exhibits a half-life of less than 60 days, and does not have a tendency to accumulate in organisms. (44) Nutrient criteria--Numeric and narrative criteria that are established to protect surface waters from excessive growth of aquatic vegetation. Nutrient numeric criteria for reservoirs are expressed in terms of chlorophyll a concentration per unit volume as a measure of phytoplankton density. (45) Nutrient--A chemical constituent, most commonly a form of nitrogen or phosphorus, that in excess can contribute to the undesirable growth of aquatic vegetation and impact uses as defined in this title. (46) Oyster waters--Waters producing edible species of clams, oysters, or mussels. (47) Persistent--Describes a toxic substance that is not readily degraded and exhibits a half-life of 60 days or more in an aquatic environment. (48) Pollution--The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of, any water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property or to the public health, safety, or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful or reasonable purpose. (49) Point source--Any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants or wastes are or may be discharged into or adjacent to any water in the state. (50) Presumed use--A use that is assigned to generic categories of water bodies (such as perennial streams). Presumed uses are superseded by designated uses for individual water bodies in Appendix A, D, or G of §307.10 of this title (relating to Appendices A - G). (51) Primary contact recreation 1--Activities that are presumed to involve a significant risk of ingestion of water (e.g., wading by children, swimming, water skiing, diving, tubing, surfing, handfishing as defined by Texas Parks and Wildlife Code, §66.115, and the following whitewater activities: kayaking, canoeing, and rafting). (52) Primary contact recreation 2--Water recreation activities, such as wading by children, swimming, water skiing, diving, tubing, surfing, handfishing as defined by Texas Parks and Wildlife Code, §66.115, and whitewater kayaking, canoeing, and rafting, that involve a significant risk of ingestion of water but that occur less frequently than for primary contact recreation 1 due to: (A) physical characteristics of the water body; or (B) limited public access. (53) Protection zone--Any area within the watershed of a sole-source surface drinking water supply that is: (A) within two miles of the normal pool elevation of a body of surface water that is a sole-source surface drinking water supply;(B) within two miles of that part of a perennial stream that is: (i) a tributary of a sole-source surface drinking water supply; and(ii) within three linear miles upstream of the normal pool elevation of a sole-source surface drinking water supply; or (C) within two miles of that part of a stream that is a sole-source surface drinking water supply, extending three linear miles upstream from the water supply intake (Texas Water Code, §26.0286). (54) Public drinking water supply--A water body designated to provide water to a public water system as defined in Chapter 290 of this title (relating to Public Drinking Water). (55) Saltwater--A coastal water that has a measurable elevation change due to normal tides. In the absence of tidal information, saltwater is generally considered to be a coastal water that typically has a salinity of two parts per thousand or greater in a significant portion of the water column. (56) Salinity--The total dissolved solids in water after all carbonates have been converted to oxides, all bromide and iodide have been replaced by chloride, and all organic matter has been oxidized. For most purposes, salinity is considered equivalent to total dissolved salt content. Salinity is usually expressed in parts per thousand. (57) Seagrass propagation--A water-quality-related existing use that applies to saltwater with significant stands of submerged seagrass. (58) Secondary contact recreation 1--Activities that commonly occur but have limited body contact incidental to shoreline activity (e.g. fishing, canoeing, kayaking, rafting, and motor boating). These activities are presumed to pose a less significant risk of water ingestion than primary contact recreation 1 or 2 but more than secondary contact recreation 2. (59) Secondary contact recreation 2--Activities with limited body contact incidental to shoreline activity (e.g. fishing, canoeing, kayaking, rafting, and motor boating) that are presumed to pose a less significant risk of water ingestion than secondary contact recreation 1. These activities occur less frequently than secondary contact recreation 1 due to physical characteristics of the water body or limited public access. (60) Segment--A water body or portion of a water body that is individually defined and classified in Appendices A and C of §307.10 of this title (relating to Appendices A - G) in the Texas Surface Water Quality Standards. A segment is intended to have relatively homogeneous chemical, physical, and hydrological characteristics. A segment provides a basic unit for assigning site-specific standards and for applying water quality management programs of the agency. Classified segments may include streams, rivers, bays, estuaries, wetlands, lakes, or reservoirs. (61) Settleable solids--The volume or weight of material that settles out of a water sample in a specified period of time. (62) Seven-day, two-year low-flow (7Q2)--The lowest average stream flow for seven consecutive days with a recurrence interval of two years, as statistically determined from historical data. As specified in §307.8 of this title, some water quality standards do not apply at stream flows that are less than the 7Q2 flow. (63) Shellfish--Clams, oysters, mussels, crabs, crayfish, lobsters, and shrimp. (64) Sole-source surface drinking water supply--A body of surface water that is identified as a public water supply in rules adopted by the commission under Texas Water Code, §26.023 and is the sole source of supply of a public water supply system, exclusive of emergency water connections (Texas Water Code, §26.0286). (65) Standard Methods for the Examination of Water and Wastewater--A document describing sampling and analytical procedures that is published by the American Public Health Association, American Water Works Association, and Water Environment Federation. The most recent edition of this document is to be followed whenever its use is specified by this chapter. (66) Standards--Desirable uses (i.e., existing, attainable, designated, or presumed uses as defined in this section) and the narrative and numerical criteria deemed necessary to protect those uses in surface waters. (67) Standards implementation procedures--Methods and protocols in the guidance document Procedures to Implement the Texas Surface Water Quality Standards (RG-194), as amended and approved by the commission and EPA. (68) Stormwater--Rainfall runoff, snow melt runoff, surface runoff, and drainage. (69) Stormwater discharge--A point source discharge that is composed entirely of stormwater associated with an industrial activity, a construction activity, a discharge from a municipal separate storm sewer system, or other discharge designated by the agency. (70) Stream order--A classification of stream size, where the smallest, unbranched tributaries of a drainage basin are designated first order streams. Where two first order streams join, a second order stream is formed; where two second order streams join, a third order stream is formed, etc. For purposes of water quality standards application, stream order is determined from United States Geological Survey topographic maps with a scale of 1:24,000. (71) Surface water in the state--Lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of Mexico inside the territorial limits of the state as defined in the Texas Water Code, §26.001, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all water-courses and bodies of surface water, that are wholly or partially inside or bordering the state or subject to the jurisdiction of the state; except that waters in treatment systems that are authorized by state or federal law, regulation, or permit, and that are created for the purpose of waste treatment are not considered to be water in the state. (72) Sustainable Fisheries--Descriptive of water bodies that potentially have sufficient fish production or fishing activity to create significant long-term human consumption of fish. Sustainable fisheries include perennial streams and rivers with a stream order of three or greater; lakes and reservoirs greater than or equal to 150 acre-feet or 50 surface acres; all bays, estuaries, and tidal rivers. Water bodies that are presumed to have sustainable fisheries include all designated segments listed in Appendix A of §307.10 of this title (relating to Appendices A - G) unless specifically exempted. (73) Thalweg--The deepest portion of a stream or river channel cross-section. (74) Tidal--Descriptive of coastal waters that are subject to the ebb and flow of tides. For purposes of standards applicability, tidal waters are considered to be saltwater. Classified tidal waters include all bays and estuaries with a segment number that begins with 24xx, all streams with the word tidal in the segment name, and the Gulf of Mexico. (75) To discharge--Includes to deposit, conduct, drain, emit, throw, run, allow to seep, or otherwise release or dispose of, or to allow, permit, or suffer any of these acts or omissions. (76) Total dissolved solids--The amount of material (inorganic salts and small amounts of organic material) dissolved in water and commonly expressed as a concentration in terms of milligrams per liter. The term is equivalent to the term filterable residue, as used in 40 Code of Federal Regulations Part 136 and in previous editions of the publication entitled, Standard Methods for the Examination of Water and Wastewater. (77) Total maximum daily load (TMDL)--The total amount of a substance that a water body can assimilate and still meet the Texas Surface Water Quality Standards. (78) Total suspended solids--Total suspended matter in water, which is commonly expressed as a concentration in terms of milligrams per liter. The term is equivalent to nonfilterable residue, as used in 40 Code of Federal Regulations Part 136 and in previous editions of the publication entitled, Standard Methods for the Examination of Water and Wastewater. (79) Total toxicity--Toxicity as determined by exposing aquatic organisms to samples or dilutions of instream water or treated effluent. Also referred to as whole effluent toxicity or biomonitoring. (80) Toxic equivalency factor--A factor to describe an order-of-magnitude consensus estimate of the toxicity of a compound relative to the toxicity of 2,3,7,8-tetraclorodibenzo-p-dioxin (2,3,7,8-TCDD). The factor is applied to transform various concentrations of dioxins and furans or dioxin-like polychlorinated biphenyls into equivalent concentrations of 2,3,7,8-TCDD, expressed as a toxic equivalency. (81) Toxic equivalency--The sum of the products from the concentration of each dioxin and furan, or dioxin-like polychlorinated biphenyl congener, multiplied by its respective toxic equivalency factor to give a single 2,3,7,8-tetraclorodibenzo-p-dioxin equivalent. (82) Toxicity--The occurrence of adverse effects to living organisms due to exposure to toxic materials. Adverse effects caused by conditions of temperature and dissolved oxygen are excluded from the definition of toxicity. With respect to the provisions of §307.6(e) of this title (relating to Toxic Materials), which concerns total toxicity and biomonitoring requirements, adverse effects caused by concentrations of dissolved salts (such as sodium, potassium, calcium, chloride, carbonate) in source waters are excluded from the definition of toxicity. Source water is defined as surface water or groundwater that is used as a public water supply or industrial water supply (including a cooling-water supply). Source water does not include brine water that is produced during the extraction of oil and gas, or other sources of brine water that are substantially uncharacteristic of surface waters in the area of discharge. In addition, adverse effects caused by concentrations of dissolved salts that are added to source water by industrial processes are not excluded from the requirements of §307.6(e) of this title, except as specifically noted in §307.6(e)(2)(B) of this title, which concerns requirements for toxicity testing of 100% effluent. This definition of toxicity does not affect the standards for dissolved salts in this chapter other than §307.6(e) of this title. The standards implementation procedures contain provisions to protect surface waters from adverse effects of dissolved salts and methods to address the effects of dissolved salts on total toxicity tests. (83) Toxicity biomonitoring--The process or act of determining total toxicity. Documents that describe procedures for toxicity biomonitoring are cited in §307.6 of this title (relating to Toxic Materials). Also referred to simply as biomonitoring. (84) Water-effect ratio (WER)--The WER is calculated as the toxic concentration (LC50 ) of a substance in water at a particular site, divided by the toxic concentration of that substance as reported in laboratory dilution water. The WER can be used to establish site-specific acute and chronic criteria to protect aquatic life. The site-specific criterion is equal to the WER times the statewide aquatic life criterion in §307.6(c) of this title. (85) Water quality management program--The agency's overall program for attaining and maintaining water quality consistent with state standards, as authorized under the Texas Water Code, the Texas Administrative Code, and the federal Clean Water Act, §§106, 205(j), 208, 303(e) and 314 (33 United States Code, §§1251 et seq.). (86) Wetland--An area (including a swamp, marsh, bog, prairie pothole, or similar area) having a predominance of hydric soils that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support and that under normal circumstances supports the growth and regeneration of hydrophytic vegetation. The term "hydric soil" means soil that, in its undrained condition, is saturated, flooded, or ponded long enough during a growing season to develop an anaerobic condition that supports the growth and regeneration of hydrophytic vegetation. The term "hydrophytic vegetation" means a plant growing in: water or a substrate that is at least periodically deficient in oxygen during a growing season as a result of excessive water content. The term "wetland" does not include irrigated acreage used as farmland; a man-made wetland of less than one acre; or a man-made wetland where construction or creation commenced on or after August 28, 1989, and that was not constructed with wetland creation as a stated objective, including but not limited to an impoundment made for the purpose of soil and water conservation that has been approved or requested by soil and water conservation districts. If this definition of wetland conflicts with the federal definition in any manner, the federal definition prevails. (87) Wetland water quality functions--Attributes of wetlands that protect and maintain the quality of water in the state, which include stormwater storage and retention and the moderation of extreme water level fluctuations; shoreline protection against erosion through the dissipation of wave energy and water velocity, and anchoring of sediments; habitat for aquatic life; and removal, transformation, and retention of nutrients and toxic substances.(88) Zone of initial dilution--The small area at the immediate point of a permitted discharge where initial dilution with receiving waters occurs and that may not meet certain criteria applicable to the receiving water. A zone of initial dilution is substantially smaller than a mixing zone. (b) Abbreviations. The following abbreviations apply to this chapter: (1) ALU--aquatic life use.(2) AP--aquifer protection. (3) AS--agricultural water supply. (4) ASTER--Assessment Tools for the Evaluation of Risk. (5) BAF--Bioaccumulation factor.(6) BCF--bioconcentration factor. (7) CASRN--Chemical Abstracts Service Registry number. (8) CFR--Code of Federal Regulations. (9) cfs--cubic feet per second. (10) Cl-1 --chloride. (11) CR--county road. (12) DO--dissolved oxygen. (13) E--exceptional aquatic life use. (14) EPA--United States Environmental Protection Agency. (15) degrees F--degrees Fahrenheit. (16) FM--Farm to Market Road. (17) ft3 /s--cubic feet per second. (18) H--high aquatic life use. (19) HEAST--Health Effects Assessment Summary Tables. (20) I--intermediate aquatic life use. (21) IBWC--International Boundary and Water Commission. (22) IH--Interstate Highway.(23) IRIS--Integrated Risk Information System. (24) IS--industrial water supply. (25) km--kilometer. (26) L--limited aquatic life use. (27) M--minimal aquatic life use. (28) m--multiplier. (29) m/km--meters per kilometer. (30) MCL--maximum contaminant level (for public drinking water supplies). (31) MDL--method detection limit. (32) mg/L--milligrams per liter. (33) mi--mile. (34) mL--milliliter. (35) MUD--municipal utility district.(36) N--navigation. (37) NCR--noncontact recreation. (38) O--oyster waters. (39) PCR--primary contact recreation. (40) PS--public water supply. (41) RfD--reference dose. (42) RR--ranch road. (43) 7Q2--seven-day, two-year low-flow. (44) SCR--secondary contact recreation. (45) SH--state highway. (46) SO4 -2 --sulfate. (47) SU--standard units. (48) TCEQ--Texas Commission on Environmental Quality. (49) TDS--total dissolved solids. (50) TEF--toxic equivalency factor. (51) TMDL--total maximum daily load. (52) TPDES--Texas Pollutant Discharge Elimination System. (53) TRE--toxicity reduction evaluation. (54) TSS--total suspended solids. (55) US--United States. (56) USFDA--United States Food and Drug Administration. (57) USGS--United States Geological Survey. (58) WER--Water-effect ratio. (59) WF--waterfowl habitat. (60) WQM--water quality management. (61) µg/L--micrograms per liter. (62) ZID--zone of initial dilution.</content><note type="source"><p>Source Note: The provisions of this §307.3 adopted to be effective July 10, 1991, 16 TexReg 3400; amended to be effective July 13, 1995, 20 TexReg 4701; amended to be effective August 17, 2000, 25 TexReg 7722; amended to be effective July 22, 2010, 35 TexReg 6294; amended to be effective March 6, 2014, 39 TexReg 1450; amended to be effective March 1, 2018, 43 TexReg 1102; amended to be effective September 29, 2022, 47 TexReg 6216.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c307/sc/s307.4"><num value="307.4">§307.4</num><heading>General Criteria</heading><content>(a) Application. The general criteria set forth in this section apply to surface water in the state and specifically apply to substances attributed to waste discharges or human activities. General criteria do not apply to those instances when surface water, as a result of natural phenomena, exhibit characteristics beyond the limits established by this section. General criteria are superseded by specific exemptions stated in this section or in §307.8 of this title (relating to the Application of Standards), or by site-specific water quality standards for classified segments. Provisions of the general criteria remain in effect in mixing zones or below critical low-flow conditions unless specifically exempted in §307.8 of this title. (b) Aesthetic parameters. (1) Concentrations of taste and odor producing substances must not interfere with the production of potable water by reasonable water treatment methods, impart unpalatable flavor to food fish including shellfish, result in offensive odors arising from the waters, or otherwise interfere with the reasonable use of the water in the state. (2) Surface water must be essentially free of floating debris and suspended solids that are conducive to producing adverse responses in aquatic organisms or putrescible sludge deposits or sediment layers that adversely affect benthic biota or any lawful uses. (3) Surface waters must be essentially free of settleable solids conducive to changes in flow characteristics of stream channels or the untimely filling of surface water in the state. This provision does not prohibit dredge and fill activities that are permitted in accordance with the Federal Clean Water Act. (4) Surface waters must be maintained in an aesthetically attractive condition. (5) Waste discharges must not cause substantial and persistent changes from ambient conditions of turbidity or color. (6) No foaming or frothing of a persistent nature is permissible. (7) Surface waters must be maintained so that oil, grease, or related residue do not produce a visible film or sheen of oil or globules of grease on the surface or coat the banks or bottoms of the watercourse; or cause toxicity to man, aquatic life, or terrestrial life in accordance with subsection (d) of this section. (c) Radiological substances. Radioactive materials must not be discharged in excess of the amount regulated by Chapter 336 of this title (relating to Radioactive Substance Rules). (d) Toxic substances. Surface waters must not be toxic to man from ingestion of water, consumption of aquatic organisms, or contact with the skin, or to terrestrial or aquatic life. Additional requirements and criteria for toxic substances are specified in §307.6 of this title (relating to Toxic Materials). Criteria to protect aquatic life from acute toxicity apply to all surface waters in the state except as specified in §307.8(a)(3) of this title. Criteria to protect aquatic life from chronic toxicity apply to surface waters with an aquatic life use of limited, intermediate, high, or exceptional as designated in §307.10 of this title (relating to Appendices A - G) or as determined on a case-by-case basis in accordance with subsection (l) of this section. Toxic criteria to protect human health for consumption of fish apply to waters with a sustainable or incidental fishery, as described in §307.6(d) of this title. Additional criteria apply to water in the state with a public drinking water supply use, as described in §307.6(d) of this title. The general provisions of this subsection do not change specific provisions in §307.8 of this title for applying toxic criteria. (e) Nutrients. Nutrients from permitted discharges or other controllable sources must not cause excessive growth of aquatic vegetation that impairs an existing, designated, presumed, or attainable use. Site-specific nutrient criteria, nutrient permit limitations, or separate rules to control nutrients in individual watersheds are established where appropriate after notice and opportunity for public participation and proper hearing. Site-specific numeric criteria related to chlorophyll a are listed in Appendix F of §307.10 of this title. (f) Temperature. Consistent with §307.1 of this title (relating to General Policy Statement) and in accordance with state water rights permits, temperature in industrial cooling impoundments, industrial cooling water areas, and all other surface water in the state must be maintained so as to not interfere with the reasonable use of such waters. Numerical temperature criteria have not been specifically established for industrial cooling impoundments, which in most areas of the state contribute to water conservation and water quality objectives. In addition, numerical criteria for temperature are not applicable in designated industrial cooling water areas, as defined in §307.3 of this title (relating to Definitions and Abbreviations). The horizontal boundaries of an industrial cooling water area must be defined in the applicable wastewater permit. The following temperature criteria, expressed as a maximum temperature differential (rise over ambient) are established except for industrial cooling impoundments, temperature elevations due to discharges of treated domestic (sanitary) effluent, and temperature elevations within designated mixing zones or industrial cooling water areas. The maximum temperature differentials are: (1) freshwater streams: 5 degrees Fahrenheit (degrees F); (2) freshwater lakes and impoundments: 3 degrees F; and (3) tidal river reaches, bay, and gulf waters: 4 degrees F in fall, winter, and spring, and 1.5 degrees F in summer (June, July, and August). (4) Additional temperature criteria (expressed as maximum temperatures) for classified segments are specified in Appendix A of §307.10 of this title. These criteria are not applicable within industrial cooling water areas. (g) Salinity. (1) Concentrations and the relative ratios of dissolved minerals such as chloride, sulfate, and total dissolved solids must be maintained such that existing, designated, presumed, and attainable uses are not impaired. (2) Criteria for chloride, sulfate, and total dissolved solids for classified freshwater segments are specified in Appendix A of §307.10 of this title. (3) Salinity gradients in estuaries must be maintained to support attainable estuarine dependent aquatic life uses. Numerical salinity criteria for Texas estuaries have not been established because of the high natural variability of salinity in estuarine systems, and because long-term studies by state agencies to assess estuarine salinities are still ongoing. Absence of numerical criteria must not preclude evaluations and regulatory actions based on estuarine salinity, and careful consideration must be given to all activities that may detrimentally affect salinity gradients. (h) Aquatic life uses and dissolved oxygen. (1) Dissolved oxygen concentrations must be sufficient to support existing, designated, presumed, and attainable aquatic life uses. Aquatic-life use categories and corresponding dissolved oxygen criteria are described in §307.7(b)(3) of this title (relating to Site-Specific Uses and Criteria). (2) Aquatic life use categories and dissolved oxygen criteria for classified segments are specified in Appendix A of §307.10 of this title. Aquatic life use categories and dissolved oxygen criteria for other specific water bodies are specified in Appendix D of §307.10 of this title. Where justified by sufficient site-specific information, dissolved oxygen criteria that differ from §307.7(b)(3) of this title may be adopted for a particular water body in §307.10 of this title. (3) Perennial streams, rivers, lakes, bays, estuaries, and other appropriate perennial waters that are not specifically listed in Appendix A or D of §307.10 of this title are presumed to have a high aquatic life use and corresponding dissolved oxygen criteria. Applicable dissolved oxygen criteria are described in §307.7(b)(3)(A) of this title. Higher uses are protected where they are attainable. (4) When water is present in the streambed of intermittent streams, a 24-hour dissolved oxygen mean of at least 2.0 mg/L and 24-hour minimum dissolved oxygen concentration of 1.5 mg/L must be maintained. Intermittent streams that are not specifically listed in Appendix A or D of §307.10 of this title are considered to have a minimal aquatic life use except as indicated below in this subsection. For intermittent streams with seasonal aquatic life uses, dissolved oxygen concentrations commensurate with the aquatic life uses must be maintained during the seasons when the aquatic life uses occur. Unclassified intermittent streams with perennial pools are presumed to have a limited aquatic life use and corresponding dissolved oxygen criteria. Higher uses are protected where they are attainable. (i) Aquatic life uses and habitat. Vegetative and physical components of the aquatic environment must be maintained or mitigated to protect aquatic life uses. Procedures to protect habitat in permits for dredge and fill are specified in Federal Clean Water Act, §404 and in Chapter 279 of this title (relating to Water Quality Certification). (j) Aquatic recreation. (1) Existing, designated, presumed, and attainable uses of aquatic recreation must be maintained, as determined by criteria that indicate the potential presence of pathogens. Categories of recreation and applicable criteria are established in §307.7(b)(1) of this title. (2) Recreational use categories and criteria for classified segments are specified in Appendix A of §307.10 of this title. Site-specific recreational use categories and criteria for selected unclassified water bodies are specified in Appendix G of §307.10 of this title. Where justified by sufficient site-specific information, recreational uses and criteria that differ from §307.7(b)(1) of this title may be adopted for a particular water body in §307.10 of this title. For water bodies not specifically listed in Appendix A or Appendix G of §307.10 of this title, the following recreational uses are presumed to apply. (A) Primary contact recreation 1. Primary contact recreation 1 is presumed for lakes, reservoirs, and tidal water bodies. Primary contact recreation 1 is presumed to apply to intermittent streams, intermittent streams with perennial pools, nontidal wetlands, and perennial freshwater streams and rivers, except where site-specific information indicates that recreational activities that involve a significant risk of ingestion have little to no likelihood of occurring, in accordance with subparagraph (C) of this paragraph. (B) Primary contact recreation 2. No water body is presumed to have a use of primary contact recreation 2. This use is applicable when designated for an individual water body as listed in Appendix A or G in §307.10 of this title. Primary contact recreation 2 applies to water bodies where water recreation activities that involve a significant risk of ingestion of water occur, but less frequently than for primary contact recreation 1 due to: (i) physical characteristics of the water body; or (ii) limited public access. (C) Secondary contact recreation 1. Secondary contact recreation 1 applies to water bodies where water recreation can occur, but the nature of the recreation does not involve a significant risk of ingestion. Secondary contact recreation 1 applies to intermittent and perennial freshwaters where site-specific information demonstrates that primary contact recreation 1 or 2 have little to no likelihood of occurring. At a minimum, the following characteristics must be demonstrated for a presumed use of secondary contact recreation 1 to apply: (i) during dry weather flows, the average depth at the thalweg (mid-channel) is less than 0.5 meters and there are not substantial pools with a depth of 1 meter or greater; and (ii) there are no existing recreational activities that create a significant risk of ingestion or uses for primary contact recreation 1 or 2. (D) Secondary contact recreation 2. Secondary contact recreation 2 applies to water bodies where water recreation activities do not involve a significant risk of water ingestion and where activities occur less frequently than for secondary contact recreation 1 due to physical characteristics of the water body or limited public access. No water body is presumed to have a use of secondary contact recreation 2. This use is applicable when designated for an individual water body as listed in Appendix A or G in §307.10 of this title. (E) Noncontact recreation. Noncontact recreation applies to water bodies where recreation activities do not involve a significant risk of water ingestion and where primary and secondary contact recreation uses should not occur because of unsafe conditions. No water body is presumed to have a use of noncontact recreation. This use is applicable when designated for an individual water body as listed in Appendix A or G in §307.10 of this title. (3) Assigning recreational uses to an unclassified water body. (A) Applying presumed uses. Recreational uses and associated numerical criteria are assigned to an unclassified water body in accordance with the presumed uses and guidelines established in paragraph (2) of this subsection. To assign uses other than primary contact recreation 1, a reasonable level of inquiry is conducted to determine if a different presumed use is appropriate for a particular water body. A reasonable level of inquiry includes review of available relevant information or completed site surveys. (B) Assigning presumed uses. Presumed uses of primary contact recreation 1 and secondary contact recreation 1 can be assigned to an individual water body for regulatory action without individually designating the recreational use and criteria in Appendix G in §307.10 of this title. Regulatory action may include issuing Texas Pollutant Discharge Elimination System permits, revising the list of impaired water bodies under Clean Water Act, §303(d), or setting and implementing a total maximum daily load. The presumed secondary contact recreation 1 use is included in the public notice of a regulatory action that could affect recreational water quality, and the assigned recreational uses are subject to applicable public comment and approval by the United States Environmental Protection Agency (EPA). For tracking purposes, presumed recreational uses that have been determined to be less stringent than primary contact recreation 1 are noted in a publicly available list such as the EPA's Water Quality Standards Repository prior to a water quality standards revision. Presumed uses that have been determined for particular water bodies are listed in Appendix G in §307.10 of this title when the water quality standards are revised. (C) Assigning a use less stringent than presumed use. A recreational use that is less stringent than the applicable presumed use can only be assigned to an individual water body for a regulatory action after that use is approved by the EPA and designated in Appendix A or G in §307.10 of this title. Support for designating a use less stringent than an applicable presumed use requires a use-attainability analysis (UAA). 40 Code of Federal Regulations §131.1(g) lists six reasons for a change in use in a water body. At least one of these reasons must be included in the UAA. (k) Antidegradation. Nothing in this section is intended to be construed or otherwise used to supersede the requirements of §307.5 of this title (relating to Antidegradation). (l) Assessment of unclassified waters for aquatic life uses. Waters that are not specifically listed in Appendices A or D of §307.10 of this title are assigned the specific uses that are attainable or characteristic of those waters. Upon administrative or regulatory action by the commission that affects a particular unclassified water body, the characteristics of the affected water body must be reviewed by the commission to determine which aquatic life uses are appropriate. Additional uses so determined must be indicated in public notices for discharge applications. Uses that are not applicable throughout the year in a particular unclassified water body are assigned and protected for the seasons where such uses are attainable. Initial determinations of use are considered preliminary, and in no way preclude redeterminations of use in public hearings conducted under the provisions of the Texas Water Code. For unclassified waters where the presumed minimum uses or criteria specified in this section are inappropriate, site-specific standards may be developed in accordance with §307.2(d) of this title (relating to Description of Standards). Uses and criteria are assigned in accordance with this section and with §307.7(b)(3) of this title. Procedures for assigning uses and criteria are described in the standards implementation procedures. (m) pH. Consistent with §307.1 of this title, pH levels in all surface water in the state must be maintained so as to not interfere with the reasonable use of such waters.</content><note type="source"><p>Source Note: The provisions of this §307.4 adopted to be effective July 10, 1991, 16 TexReg 3400; amended to be effective July 13, 1995, 20 TexReg 4701; amended to be effective April 30, 1997, 22 TexReg 3712; amended to be effective August 17, 2000, 25 TexReg 7722; amended to be effective July 22, 2010, 35 TexReg 6294; amended to be effective March 6, 2014, 39 TexReg 1450.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c307/sc/s307.5"><num value="307.5">§307.5</num><heading>Antidegradation</heading><content>(a) Application. The antidegradation policy and implementation procedures set forth in this section apply to actions regulated under state and federal authority that would increase pollution of the water in the state. Such actions include authorized wastewater discharges, total maximum daily loads (TMDLs), waste load evaluations, and any other miscellaneous actions, such as those related to man-induced nonpoint sources of pollution, that may impact the water in the state. (b) Antidegradation policy. In accordance with the Texas Water Code, §26.003, the following provisions establish the antidegradation policy of the commission. (1) Tier 1. Existing uses and water quality sufficient to protect those existing uses must be maintained. Categories of existing uses are the same as for designated uses, as defined in §307.7 of this title (relating to Site-Specific Uses and Criteria). (2) Tier 2. No activities subject to regulatory action that would cause degradation of waters that exceed fishable/swimmable quality are allowed unless it can be shown to the commission's satisfaction that the lowering of water quality is necessary for important economic or social development. Degradation is defined as a lowering of water quality by more than a de minimis extent, but not to the extent that an existing use is impaired. Water quality sufficient to protect existing uses must be maintained. Fishable/swimmable waters are defined as waters that have quality sufficient to support propagation of indigenous fish, shellfish, terrestrial life, and recreation in and on the water. (3) Tier 3. Outstanding national resource waters are defined as high quality waters within or adjacent to national parks and wildlife refuges, state parks, wild and scenic rivers designated by law, and other designated areas of exceptional recreational or ecological significance. The quality of outstanding national resource waters must be maintained and protected. (4) Discharges that cause pollution that are authorized by the Texas Water Code, the Federal Clean Water Act, or other applicable laws must not lower water quality to the extent that the Texas Surface Water Quality Standards are not attained. (5) Anyone discharging wastewater that would constitute a new source of pollution or an increased source of pollution from any industrial, public, or private project or development is required to provide a level of wastewater treatment consistent with the provisions of the Texas Water Code and the Clean Water Act (33 United States Code, §§1251 et seq.). As necessary, cost-effective and reasonable best management practices established through the Texas Water Quality Management Program are achieved for nonpoint sources of pollution. (6) Application of antidegradation provisions does not preclude the commission from establishing modified thermal discharge limitations consistent with the Clean Water Act, §316(a) (33 United States Code, §1326). (c) Antidegradation implementation procedures. (1) Implementation for specific regulatory activities. (A) For TPDES permits for wastewater, the process for the antidegradation review and public coordination is described in the standards implementation procedures. (B) For federal permits relating to the discharge of fill or dredged material under Federal Clean Water Act, §404, the antidegradation policy and public coordination is implemented through the evaluation of alternatives and mitigation under Federal Clean Water Act, §404(b)(1). State review of alternatives, mitigation, and requirements to protect water quality may also be conducted for federal permits that are subject to state certification, as authorized by Federal Clean Water Act, §401 and conducted in accordance with Chapter 279 of this title (relating to Water Quality Certification). (C) Other state and federal permitted and regulated activities that increase pollution of water in the state are also subject to the provisions of the antidegradation policy as established in subsections (a) and (b) of this section. (2) General provisions for implementing the antidegradation policy. (A) Tier 1 reviews must ensure that water quality is sufficiently maintained so that existing uses are protected. All pollution that could cause an impairment of water quality is subject to Tier 1 reviews. If the existing uses and criteria of a potentially affected water body have not been previously determined, then the antidegradation review must include a preliminary determination of existing uses and criteria. Existing uses must be maintained and protected. (B) Tier 2 reviews apply to all pollution that could cause degradation of water quality where water quality exceeds levels necessary to support propagation of fish, shellfish, terrestrial life, and recreation in and on the water (fishable/swimmable quality). Guidance for determining water bodies that exceed fishable/swimmable quality is contained in the standards implementation procedures. For dissolved oxygen, analyses of degradation under Tier 2 must utilize the same critical conditions as are used to protect instream criteria. For other parameters, appropriate conditions may vary. Conditions for determining degradation are commensurate with conditions for determining existing uses. The highest water quality sustained since November 28, 1975 (in accordance with EPA Standards Regulation 40 Code of Federal Regulations Part 131) defines baseline conditions for determinations of degradation. (C) Tier 3 reviews apply to all pollution that could cause degradation of outstanding national resource waters. Outstanding national resource waters are those specifically designated in this chapter. (D) When degradation of waters exceeding fishable/swimmable quality is anticipated, a statement that the antidegradation policy is pertinent to the permit action must be included in the public notice for the permit application or amendment. If no degradation is anticipated, the public notice must so state. (E) Evidence can be introduced in public hearings, or through the public comment process, concerning the determination of existing uses and criteria; the assessment of degradation under Tier 1, Tier 2, and Tier 3; the social and economic justification for lowering water quality; requirements and conditions necessary to preclude degradation; and any other issues that bear upon the implementation of the antidegradation policy. (F) Interested parties are given the opportunity to provide comments and additional information concerning the determination of existing uses, anticipated impacts of the discharge, baseline conditions, and the necessity of the discharge for important economic or social development if degradation of water quality is expected under Tier 2. (G) The antidegradation policy and the general provisions for implementing the antidegradation policy apply to the determination of TMDLs and to waste load evaluations that allow an increase in loading. If the TMDL or waste load evaluation indicates that degradation of waters exceeding fishable/swimmable quality is expected, the public hearing notice must so state. Permits that are consistent with an approved TMDL or waste load evaluation under this antidegradation policy are not subjected to a separate antidegradation review for the specific parameters that are addressed by the TMDL or waste load evaluation.</content><note type="source"><p>Source Note: The provisions of this §307.5 adopted to be effective July 10, 1991, 16 TexReg 3400; amended to be effective July 13, 1995, 20 TexReg 4701; amended to be effective August 17, 2000, 25 TexReg 7722; amended to be effective July 22, 2010, 35 TexReg 6294.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c307/sc/s307.6"><num value="307.6">§307.6</num><heading>Toxic Materials</heading><content>(a) Application. The toxic criteria set forth in this section apply to surface water in the state and specifically apply to substances attributed to waste discharges or human activity. With the exception of numeric human health criteria, toxic criteria do not apply to those instances where surface water, solely as a result of natural phenomena, exhibit characteristics beyond the limits established by this section. Standards and procedures set forth in this section are applied in accordance with §307.8 of this title (relating to Application of Standards) and §307.9 of this title (relating to Determination of Standards Attainment). (b) General provisions. (1) Water in the state must not be acutely toxic to aquatic life in accordance with §307.8 of this title. (2) Water in the state with designated or existing aquatic life uses of limited or greater must not be chronically toxic to aquatic life, in accordance with §307.8 of this title. (3) Water in the state must be maintained to preclude adverse toxic effects on human health resulting from contact recreation, consumption of aquatic organisms, consumption of drinking water or any combination of the three. Water in the state with sustainable fisheries or public drinking water supply uses must not exceed applicable human health toxic criteria, in accordance with subsection (d) of this section and §307.8 of this title. (4) Water in the state must be maintained to preclude adverse toxic effects on aquatic life, terrestrial life, livestock, or domestic animals, resulting from contact, consumption of aquatic organisms, consumption of water, or any combination of the three. (c) Specific numerical aquatic life criteria. (1) Numerical criteria are established in Table 1 of this paragraph for those specific toxic substances where adequate toxicity information is available and that have the potential for exerting adverse impacts on water in the state.Attached Graphic(2) Numerical criteria are based on ambient water quality criteria documents published by the EPA. EPA guidance criteria have been appropriately recalculated to eliminate the effects of toxicity data for aquatic organisms that are not native to Texas, in accordance with procedures in the EPA guidance documents entitled Guidelines for Deriving Numerical Site-specific Water Quality Criteria (EPA 600/3-84-099) and Revised Deletion Process for the Site-Specific Recalculation Procedure for Aquatic Life Criteria (EPA-823-R-13-001). Additional EPA guidelines that may be used to establish aquatic life criteria are detailed in the guidance documents. (3) Specific numerical acute aquatic life criteria are applied as 24-hour averages, and specific numerical chronic aquatic life criteria are applied as seven-day averages. (4) Ammonia and chlorine toxicity are addressed by total toxicity (biomonitoring) requirements in subsection (e) of this section. (5) Specific numerical aquatic life criteria for metals and metalloids in Table 1 of paragraph (1) of this subsection apply to dissolved concentrations where noted. Dissolved concentrations can be estimated by filtration of samples prior to analysis, or by converting from total recoverable measurements in accordance with procedures approved by the commission in the standards implementation procedures (RG-194) as amended. Specific numerical aquatic life criteria for non-metallic substances in Table 1 of paragraph (1) of this subsection apply to total recoverable concentrations unless otherwise noted. (6) Specific numerical acute criteria for toxic substances are applicable to all water in the state except for small zones of initial dilution (ZIDs) at discharge points. Acute criteria may be exceeded within a ZID and below extremely low streamflow conditions (one-fourth of critical low-flow conditions) in accordance with §307.8 of this title. There must be no lethality to aquatic organisms that move through a ZID, and the sizes of ZIDs are limited in accordance with §307.8 of this title. Specific numerical chronic criteria are applicable to all water in the state with designated or existing aquatic life uses of limited or greater, except inside mixing zones and below critical low-flow conditions, in accordance with §307.8 of this title. (7) For toxic materials where specific numerical criteria are not listed in Table 1 of paragraph (1) of this subsection, the appropriate criteria for aquatic life protection may be derived in accordance with current EPA guidelines for deriving site-specific water quality criteria. When insufficient data are available to use EPA guidelines, the following provisions are applied in accordance with this section and §307.8 of this title. The LC50 data used in the subsequent calculations are typically obtained from traditional laboratory studies; however, if LC50 data are unavailable or incomplete, other methodologies (such as quantitative structure-activity relationships) may be used: (A) acute criteria are calculated as 0.3 of the LC50 of the most sensitive aquatic species; LC50 × (0.3) = acute criteria; (B) concentrations of nonpersistent toxic materials must not exceed concentrations that are chronically toxic as determined from appropriate chronic toxicity data obtained in accordance with procedures in the EPA guidance document entitled Guidelines for Deriving Numerical National Water Quality Criteria for the Protection of Aquatic Life and Their Uses (EPA 822-R-85-100) or calculated as 0.1 of acute LC50 values to the most sensitive aquatic species; LC50 × (0.1) = chronic criteria; (C) concentrations of persistent toxic materials that do not bioaccumulate shall not exceed concentrations that are chronically toxic as determined from appropriate chronic toxicity data obtained in accordance with procedures in the EPA guidance document entitled Guidelines for Deriving Numerical National Water Quality Criteria for the Protection of Aquatic Life and Their Uses (EPA 822-R-85-100) or calculated as 0.05 of LC50 values to the most sensitive aquatic species; LC50 × (0.05) = chronic criteria; and (D) concentrations of toxic materials that bioaccumulate must not exceed concentrations that are chronically toxic as determined from appropriate chronic toxicity data obtained in accordance with procedures in the EPA guidance document entitled Guidelines for Deriving Numerical National Water Quality Criteria for the Protection of Aquatic Life and Their Uses (EPA 822-R-85-100) or calculated as 0.01 of LC50 values to the most sensitive aquatic species; LC50 × (0.01) = chronic criteria. (8) For toxic substances where the relationship of toxicity is defined as a function of pH or hardness, numerical criteria are presented as an equation based on this relationship. Site-specific values for each segment are given in the standards implementation procedures (RG-194) as amended. (9) Criteria for most metals are multiplied by a water-effect ratio (WER) in order to incorporate the effects of local water chemistry on toxicity. The WER is assumed to be equal to one except where sufficient site-specific data are available to determine the WER for a particular water body or portion of a water body. A WER is only applicable to those portions of a water body that are adequately addressed by site-specific data. WERs that have been determined for particular water bodies are listed in Appendix E of §307.10 of this title (relating to Appendices A - G) when standards are revised. A site-specific WER that affects an effluent limitation in a wastewater discharge permit, and that has not been incorporated into Appendix E of §307.10 of this title, must be noted in a public notice during the permit application process. An opportunity for public comment must be provided, and the WER may be considered in any public hearing on the permit application. (10) Freshwater copper aquatic-life criteria include a multiplier (m) to incorporate effects of local water chemistry on toxicity. Site-specific criteria may be based on either a WER or a biotic ligand model. The WER multiplier is assumed to be equal to one except where sufficient site-specific data are available to determine the multiplier for a particular water body or portion of a water body. The WER multiplier or biotic ligand model result is only applicable to those portions of a water body that are adequately addressed by site-specific data. The biotic ligand model is based on the dissolved portion of copper, and the freshwater equation is not used in this case. As WER multipliers and criteria based on biotic ligand models are determined for particular water bodies, they are listed in Appendix E of §307.10 of this title when standards are revised. A site-specific WER multiplier or biotic ligand model result that affects an effluent limitation in a wastewater discharge permit, and that has not been incorporated into Appendix E of §307.10 of this title, is noted in a public notice during the permit application process. An opportunity for public comment must be provided, and the WER multiplier or biotic ligand model result may be considered in any public hearing on the permit application. (11) Additional site-specific factors may indicate that the numerical criteria listed in Table 1 of paragraph (1) of this subsection are inappropriate for a particular water body. These factors are applied as a site-specific standards modification in accordance with §307.2(d) of this title (relating to Description of Standards). The application of a site-specific standard must not impair an existing, attainable, or designated use. Factors that may justify a temporary variance or site-specific standards amendment include the following: (A) background concentrations of specific toxics of concern in receiving waters, sediment, or indigenous biota; (B) persistence and degradation rate of specific toxic materials; (C) synergistic, additive, or antagonistic interactions of toxic substances with other toxic or nontoxic materials; (D) measurements of total effluent toxicity; (E) indigenous aquatic organisms, which may have different responses to particular toxic materials; (F) technological or economic limits of treatability for specific toxic materials; (G) bioavailability of specific toxic substances of concern, as determined by WER tests or other analyses approved by the commission; and (H) new information concerning the toxicity of a particular substance. (d) Specific numerical human health criteria. (1) Numerical human health criteria are established in Table 2 of this paragraph.Attached Graphic(2) Categories of human health criteria. (A) Concentration criteria to prevent contamination of drinking water, fish, and other aquatic life to ensure that they are safe for human consumption. These criteria apply to surface waters that are designated or used for public drinking water supplies, including all water bodies identified as having a public drinking water supply use in Appendix A of §307.10 of this title or as a sole-source surface drinking water supply in Appendix B of §307.10 of this title. (Column A in Table 2 of paragraph (1) of this subsection.)(B) Concentration criteria to prevent contamination of fish and other aquatic life to ensure that they are safe for human consumption. These criteria apply to surface waters that have sustainable fisheries and that are not designated or used for public water supply or as a sole-source surface drinking water supply. (Column B in Table 2 of paragraph (1) of this subsection.) (3) Specific assumptions and procedures (except where noted in Table 2 of paragraph (1) of this subsection). (A) Sources for the toxicity factors to calculate criteria were derived from EPA's IRIS database; EPA's National Recommended Water Quality Criteria: 2002, Human Health Criteria Calculation Matrix (EPA-822-R-02-012); EPA inputs for calculating the 2015 updated national recommended human health criteria; EPA Health Effects Assessment Summary Tables (HEAST); Assessment Tools for the Evaluation of Risk (ASTER); EPA's QSAR Toxicity Estimation Software Tool, version 4.1; and the computer program, CLOGP3. (B) For known or suspected carcinogens (as identified in EPA's IRIS database), an incremental cancer risk level of 10-5 (1 in 100,000) was used to derive criteria. An RfD (reference dose) was determined for carcinogens and noncarcinogens where the EPA has not derived cancer slope factors. (C) Consumption rates of fish and shellfish were estimated as 17.5 grams per person per day, unless otherwise specified in Table 2 of paragraph (1) of this subsection. (D) Drinking water consumption rates were estimated as 2.0 liters per person per day. (E) For carcinogens, a body-weight scaling factor of 3/4 power was used to convert data on laboratory test animals to human scale. Reported weights of laboratory test animals are used, and an average weight of 70 kilograms is assumed for humans.(F) Childhood exposure was considered for all noncarcinogens. Consumption rates for fish and shellfish were estimated as 5.6 grams per child per day and drinking water consumption rates were estimated as 0.64 liters per child per day. A child body weight was estimated at 15 kilograms. Both the water consumption rate and body weight are age-adjusted for a six-year-old child. The consumption rate for fish and shellfish for children is from Table 10-61 of EPA's 1997 Exposure Factors Handbook (EPA/600/P-95/002Fa-c). (G) Numerical human health criteria were derived in accordance with the general procedures and calculations in the EPA guidance documents entitled Technical Support Document for Water Quality-based Toxics Control (EPA/505/2-90-001); Guidance Manual for Assessing Human Health Risks from Chemically Contaminated Fish and Shellfish (EPA/503/8-89-002); and Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health (2000) (EPA-822-B-00-004). (H) If a calculated criterion to prevent contamination of drinking water and fish to ensure they are safe for human consumption (Column A in Table 2 of paragraph (1) of this subsection) was greater than the applicable maximum contaminant level (MCL) in Chapter 290 of this title (relating to Public Drinking Water), then the MCL was used as the criterion. (I) If the concentration of a substance in fish tissue used for these calculations was greater than the applicable United States Food and Drug Administration Action Level for edible fish and shellfish tissue, then the acceptable concentration in fish tissue was lowered to the Action Level for calculation of criteria. (4) Human health criteria for additional toxic materials are adopted by the commission as appropriate. (5) Specific human health concentration criteria for water are applicable to water in the state that has sustainable fisheries or designation or use as a public drinking water supply or as a sole-source drinking water supply except within mixing zones and below stream flow conditions as specified in §307.8 of this title. The following waters are considered to have sustainable fisheries: (A) all designated segments listed in Appendix A of §307.10 of this title, unless specifically exempted; (B) perennial streams and rivers with a stream order of three or greater, as defined in §307.3 of this title (relating to Definitions and Abbreviations); (C) lakes and reservoirs greater than or equal to 150 acre-feet or 50 surface acres;(D) all bays, estuaries, and tidal rivers; and (E) any other waters that potentially have sufficient fish production or fishing activity to create significant long-term human consumption of fish. (6) Waters that are not considered to have a sustainable fishery, but that have an aquatic life use of limited or greater, are considered to have an incidental fishery. Consumption rates assumed for incidental fishery waters are 1.75 grams per person per day. Therefore, numerical criteria applicable to incidental fishery waters are ten times the criteria listed in Column B in Table 2 of paragraph (1) of this subsection. (7) Specific human health criteria are applied as long term average exposure criteria designed to protect populations over a life time. Attainment measures for human health are addressed in §307.9 of this title. (8) For toxic materials of concern where specific human health criteria are not listed in Table 2 of paragraph (1) of this subsection, the following provisions apply: (A) For known or suspected carcinogens (as identified in EPA's IRIS database), a cancer risk of 10-5 (1 in 100,000) is applied to the most recent numerical criteria adopted by the EPA and published in the Federal Register. If an MCL or equivalent agency guideline for protection of drinking water sources is less than the resulting criterion, then the MCL applies to public drinking water supplies in accordance with paragraph (3)(H) of this subsection. (B) For toxic materials not defined as carcinogens, the most recent numerical criteria adopted by the EPA and published in the Federal Register are applicable. If an MCL or equivalent agency guideline for protection of drinking water sources is less than the resulting criterion, then the MCL applies to public drinking water supplies in accordance with paragraph (3)(H) of this subsection. (C) In the absence of available criteria, numerical criteria may be derived from technically valid information and calculated in accordance with the provisions of paragraph (3) of this subsection. (9) Numerical criteria for bioconcentratable pollutants are derived in accordance with the general procedures in the EPA guidance document entitled Assessment and Control of Bioconcentratable Contaminants in Surface Water (March 1991). The commission may develop discharge permit limits in accordance with the provisions of this section. (10) Numerical human health criteria are expressed as total recoverable concentrations for nonmetals and selenium and as dissolved concentrations for other metals and metalloids. (11) Additional site-specific factors may indicate that the numerical human health criteria listed in Table 2 of paragraph (1) of this subsection are inappropriate for a particular water body. These factors are applied as a site-specific standards modification in accordance with §307.2(d) of this title. The application of site-specific criteria must not impair an existing, attainable, presumed, or designated use or affect human health. Factors that may justify a temporary variance or site-specific standards amendment include the following: (A) background concentrations of specific toxics of concern in receiving waters, sediment, or indigenous biota; (B) persistence and degradation rate of specific toxic materials; (C) synergistic or antagonistic interactions of toxic substances with other toxic or nontoxic materials; (D) technological or economic limits of treatability for specific toxic materials; (E) bioavailability of specific toxic substances of concern; (F) local water chemistry and other site-specific conditions that may alter the bioconcentration, bioaccumulation, or toxicity of specific toxic substances; (G) site-specific differences in the bioaccumulation responses of indigenous, edible aquatic organisms to specific toxic materials; (H) local differences in consumption patterns of fish and shellfish or drinking water, but only if any changes in assumed consumption rates are protective of the local population that frequently consumes fish, shellfish, or drinking water from a particular water body; and (I) new information concerning the toxicity of a particular substance. (e) Total toxicity. (1) Total (whole-effluent) toxicity of permitted discharges, as determined from biomonitoring of effluent samples at appropriate dilutions, must be sufficiently controlled to preclude acute total toxicity in all water in the state with the exception of small ZIDs at discharge points and at extremely low streamflow conditions (one-fourth of critical low-flow conditions) in accordance with §307.8 of this title. Acute total toxicity levels may be exceeded in a ZID, but there must be no significant lethality to aquatic organisms that move through a ZID, and the sizes of ZIDs are limited in accordance with §307.8 of this title. Chronic total toxicity, as determined from biomonitoring of effluent samples at appropriate dilutions, must be sufficiently controlled to preclude chronic toxicity in all water in the state with an existing or designated aquatic life use of limited or greater except in mixing zones at discharge points and at flows less than critical low-flows, in accordance with §307.8 of this title. Chronic toxicity levels may be exceeded in a mixing zone, but there must be no significant sublethal toxicity to aquatic organisms that move through the mixing zone. (2) General provisions for controlling total toxicity. (A) Dischargers whose effluent has a significant potential for exerting toxicity in receiving waters as described in the Procedures to Implement the Texas Surface Water Quality Standards (RG-194) as amended are required to conduct whole effluent toxicity biomonitoring at appropriate dilutions. (B) In addition to the other requirements of this section, the effluent of discharges to water in the state must not be acutely toxic to sensitive species of aquatic life, as demonstrated by effluent toxicity tests. Toxicity testing for this purpose is conducted on samples of 100% effluent, and the criterion for acute toxicity is mortality of 50% or more of the test organisms after 24 hours of exposure. This provision does not apply to mortality that is a result of an excess, deficiency, or imbalance of dissolved inorganic salts (such as sodium, calcium, potassium, chloride, or carbonate) that are in the effluent and are not listed in Table 1 of subsection (c)(1) of this section or that are in source waters. (C) The latest revisions of the following EPA publications provide methods for appropriate biomonitoring procedures: Methods for Measuring the Acute Toxicity of Effluents and Receiving Waters to Freshwater and Marine Organisms, Short-term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Freshwater Organisms, Short-term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Marine and Estuarine Organisms, and the Technical Support Document for Water Quality-based Toxics Control. The use of other procedures approved by the agency and the EPA is also acceptable. Toxicity tests must be conducted using representative, sensitive aquatic organisms as approved by the agency, and any such testing must adequately determine if toxicity standards are being attained. (D) If toxicity biomonitoring results indicate that a discharge is not sufficiently controlled to preclude acute or chronic toxicity as described in this subsection, then the permittee will be required to eliminate sources of toxicity and may be required to conduct a toxicity reduction evaluation (TRE) in accordance with the permitting procedures of the commission. In accordance with the standards implementation procedures (RG-194), permits are amended to include appropriate provisions to eliminate toxicity. Such provisions may include total toxicity limits, chemical-specific limits, best management practices, or other actions (such as moving a discharge location) designed to reduce or eliminate toxicity. Where sufficient to attain and maintain applicable numeric and narrative state water quality standards, a chemical-specific limit, best management practices, or other actions designed to reduce or eliminate toxicity rather than a total toxicity limit may be established in the permit. Where conditions may be necessary to prevent or reduce effluent toxicity, permits must include a reasonable schedule for achieving compliance with such additional conditions. (E) Discharge permit limits based on total toxicity may be established in consideration of site-specific factors, but the application of such factors must not result in impairment of an existing, attainable, presumed, or designated use. These factors are applied as a site-specific standards modification in accordance with §307.2(d) of this title. A demonstration that uses are protected may consist of additional effluent toxicity testing, instream monitoring requirements, or other necessary information as determined by the agency. Factors that may justify a temporary variance or site-specific standards amendment include the following: (i) background toxicity of receiving waters; (ii) persistence and degradation rate of principal toxic materials that are contributing to the total toxicity of the discharge; (iii) site-specific variables that may alter the impact of toxicity in the discharge; (iv) indigenous aquatic organisms that may have different levels of sensitivity than the species used for total toxicity testing; and (v) technological, economic, or legal limits of treatability or control for specific toxic material.</content><note type="source"><p>Source Note: The provisions of this §307.6 adopted to be effective July 10, 1991, 16 TexReg 3400; amended to be effective July 13, 1995, 20 TexReg 4701; amended to be effective August 17, 2000, 25 TexReg 7722; amended to be effective July 22, 2010, 35 TexReg 6294; amended to be effective March 6, 2014, 39 TexReg1450; amended to be effective March 1, 2018, 43 TexReg 1102; amended to be effective September 29, 2022, 47 TexReg 6216.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c307/sc/s307.7"><num value="307.7">§307.7</num><heading>Site-Specific Uses and Criteria</heading><content>(a) Uses and numerical criteria are established on a site-specific basis in Appendices A, B, D, E, F, and G of §307.10 of this title (relating to Appendices A - G). Site-specific uses and numerical criteria may also be applied to unclassified waters in accordance with §307.4 of this title (relating to General Criteria) and §307.5(c) of this title (relating to Antidegradation). Site-specific criteria apply specifically to substances attributed to waste discharges or human activity. Site-specific criteria do not apply to those instances when surface waters exceed criteria due to natural phenomena. The application of site-specific uses and criteria is described in §307.8 of this title (relating to the Application of Standards) and §307.9 of this title (relating to the Determination of Standards Attainment). (b) Appropriate uses and criteria for site-specific standards are defined as follows. (1) Recreation. Recreational use consists of five categories--primary contact recreation 1, primary contact recreation 2, secondary contact recreation 1, secondary contact recreation 2, and noncontact recreation waters. Classified segments are designated for primary contact recreation 1 unless sufficient site-specific information demonstrates that elevated concentrations of indicator bacteria frequently occur due to sources of pollution that cannot be reasonably controlled by existing regulations, wildlife sources of bacteria are unavoidably high and there is limited aquatic recreational potential, or primary or secondary contact recreation is considered unsafe for other reasons such as ship or barge traffic. In a classified segment where contact recreation is considered unsafe for reasons unrelated to water quality, a designated use of noncontact recreation may be assigned either noncontact recreation criteria or criteria normally associated with primary contact recreation. A designation of primary or secondary contact recreation is not a guarantee that the water so designated is completely free of disease-causing organisms. Indicator bacteria, although not generally pathogenic, are indicative of potential contamination by feces of warm-blooded animals. Recreational criteria are based on these indicator bacteria rather than direct measurements of pathogens. Criteria are expressed as the number of bacteria per 100 milliliters (mL) of water (in terms of colony forming units, most probable number, or other applicable reporting measures). Even where the concentration of indicator bacteria is less than the criteria for primary or secondary contact recreation, there is still some risk of contracting waterborne diseases. Additional guidelines on minimum data requirements and procedures for evaluating standards attainment are specified in the TCEQ Guidance for Assessing and Reporting Surface Water Quality in Texas, as amended. (A) Freshwater. (i) Primary contact recreation 1. The geometric mean criterion for E. coli is 126 per 100 mL. In addition, the single sample criterion for E. coli is 399 per 100 mL. (ii) Primary contact recreation 2. The geometric mean criterion for E. coli is 206 per 100 mL. (iii) Secondary contact recreation 1. The geometric mean criterion for E. coli is 630 per 100 mL. (iv) Secondary contact recreation 2. The geometric mean criterion for E. coli is 1,030 per 100 mL. (v) Noncontact recreation. The geometric mean criterion for E. coli is 2,060 per 100 mL. (vi) For high saline inland water bodies where Enterococci is the designated recreational indicator in Appendix A of §307.10 of this title, Enterococci is the applicable recreational indicator for instream bacteria sampling at all times for the classified water body and for the unclassified water bodies that are within the watershed of that classified segment, unless it is demonstrated that an unclassified water body is not high saline. E. coli is the applicable recreational indicator for instream bacteria sampling at all times for unclassified water bodies where conductivity values indicate that the water bodies are not high saline. For high saline inland waters with primary contact recreation 1, the geometric mean criterion for Enterococci is 33 per 100 mL and the single sample criterion is 78 per 100 mL. For high saline inland waters with primary contact recreation 2, the geometric mean criterion for Enterococci is 54 per 100 mL. For high saline inland waters with secondary contact recreation 1, the geometric mean criterion for Enterococci is 165 per 100 mL. For high saline inland waters with secondary contact recreation 2, the geometric mean criterion for Enterococci is 270 per 100 mL. For high saline inland water bodies with noncontact recreation, the geometric mean criterion for Enterococci is 540 per 100 mL. (B) Saltwater. (i) Primary contact recreation 1. The geometric mean criterion for Enterococci is 35 per 100 mL. In addition, the single sample criterion for Enterococci is 130 per 100 mL. (ii) Secondary contact recreation 1. A secondary contact recreation 1 use for tidal streams and rivers can be established on a site-specific basis in §307.10 of this title if justified by a use-attainability analysis and the water body is not a coastal recreation water as defined in the Beaches Environmental Assessment and Coastal Health Act of 2000 (BEACH Act). The geometric mean criterion for Enterococci is 175 per 100 mL. (iii) Noncontact recreation. A noncontact recreation use for tidal streams and rivers can be established on a site-specific basis in §307.10 of this title if justified by a use-attainability analysis and the water body is not a coastal recreation water, as defined in §307.3 of this title (relating to Definitions and Abbreviations). The geometric mean criterion for Enterococci is 350 per 100 mL. (C) Swimming advisory programs. For areas where local jurisdictions or private property owners voluntarily provide public notice or closure based on water quality, the use of any single-sample or short-term indicators of recreational suitability are selected at the discretion of the local managers of aquatic recreation. Guidance for single-sample bacterial indicators is available in the EPA documents entitled Recreational Water Quality Criteria (EPA-820-F-12-058) and Ambient Water Quality Criteria for Bacteria - 1986 (EPA 440/5-84-002). Other short-term indicators to assess water quality suitability for recreation - such as measures of streamflow, turbidity, or rainfall - may also be appropriate. (2) Domestic water supply. (A) Use categories. Domestic water supply consists of three use subcategories - public water supply, sole-source surface drinking water supply, and aquifer protection. (i) Public water supply. Segments designated for public water supply are those known to be used or exhibit characteristics that would allow them to be used as the supply source for public water systems as defined by Chapter 290 of this title (relating to Public Drinking Water). (ii) Sole-source surface drinking water supplies and their protection zones. Water bodies that are sole-source surface drinking water supplies are listed in Appendix B of §307.10 of this title. Sole-source surface drinking water supplies and their protection zones are addressed in Chapter 321, Subchapter B of this title (relating to Concentrated Animal Feeding Operations). (iii) Aquifer protection. Segments designated for aquifer protection are capable of recharging the Edwards Aquifer. The principal purpose of this use designation is to protect the quality of water infiltrating into and recharging the aquifer. The designation for aquifer protection applies only to those portions of the segments so designated that are on the recharge zone, transition zone, or contributing zone as defined in Chapter 213 of this title (relating to the Edwards Aquifer). Chapter 213 of this title establishes provisions for activities in the watersheds of segments that are designated for aquifer protection. (B) Use criteria. The following use criteria apply to all domestic water supply use subcategories. (i) Radioactivity associated with dissolved minerals in the freshwater portions of river basin and coastal basin waters should not exceed levels established by drinking water standards as specified in Chapter 290 of this title unless the conditions are of natural origin. (ii) Surface waters utilized for domestic water supply must not exceed toxic material concentrations that prevent them from being treated by conventional surface water treatment to meet drinking water standards as specified in Chapter 290 of this title. (iii) Chemical and microbiological quality of surface waters used for domestic water supply should conform to drinking water standards as specified in Chapter 290 of this title. (3) Aquatic life. The establishment of numerical criteria for aquatic life is highly dependent on desired use, sensitivities of aquatic communities, and local physical and chemical characteristics. Six subcategories of aquatic life use are established. They include minimal, limited, intermediate, high, and exceptional aquatic life and oyster waters. Aquatic life use subcategories designated for segments listed in Appendix A of §307.10 of this title recognize the natural variability of aquatic community requirements and local environmental conditions. (A) Dissolved oxygen. (i) The characteristics and associated dissolved oxygen criteria for limited, intermediate, high, and exceptional aquatic life use subcategories are indicated in Table 3 of this clause. This table also includes dissolved oxygen criteria for a minimal aquatic life use subcategory that applies to intermittent streams without perennial pools as indicated in §307.4(h)(4) of this title.Attached Graphic(ii) Critical low-flow values associated with the bedslopes and dissolved oxygen criteria in Table 4 of this clause apply to streams that have limited, intermediate, high, or exceptional aquatic life uses and to streams that are specifically listed in Appendix A or D of §307.10 of this title. The critical low-flow values in Table 4 of this clause apply to streams in Texas that are east of a line defined by Interstate Highways 35 and 35W from the Red River to the community of Moore in Frio County, and by US Highway 57 from the community of Moore to the Rio Grande. Table 4 of this clause does not apply where specifically superseded by the equation that is listed in footnote 3 in the Cypress Creek Basin in Appendix A and in footnote 1 in Appendix D of §307.10 of this title. The critical low-flow values in Table 4 of this clause (at the appropriate stream bedslope) are utilized as headwater flows when the flows are larger than applicable seven-day, two-year low-flows in order to determine discharge effluent limits necessary to achieve dissolved oxygen criteria. For streams that have bedslopes less than the minimum bedslopes in Table 4 of this clause, the flows listed for the minimum bedslope of 0.1 meters per kilometer (m/km) are applicable. For streams that have bedslopes greater than the maximum bedslope in Table 4 of this clause, the flows listed for the maximum bedslope of 2.4 m/km are applicable. The required effluent limits are those necessary to achieve each level of dissolved oxygen (as defined in Table 3 of clause (i) of this subparagraph) at or below an assigned, designated, or presumed aquatic life use. Presumed aquatic life uses must be in accordance with those required by §307.4(h) of this title. The critical low-flow values in Table 4 of this clause do not apply to tidal streams. Attached Graphic(iii) The critical low-flow values in Table 4 of clause (ii) of this subparagraph for limited, intermediate, high, and exceptional aquatic life uses are based upon data from the commission's least impacted stream study (Texas Aquatic Ecoregion Project). Results of this study indicate a strong dependent relationship for average summertime background dissolved oxygen concentrations and several hydrologic and physical stream characteristics - particularly bedslope (stream gradient) and stream flow. The critical low-flow values in Table 4 of clause (ii) of this subparagraph are derived from a multiple regression equation for the eastern portion of Texas as defined in clause (ii) of this subparagraph. Further explanation of the development of the regression equation and its application are contained in the standards implementation procedures as amended. (iv) The critical low-flow values in Table 4 of clause (ii) of this subparagraph may be adjusted based on site-specific data relating dissolved oxygen concentrations to factors such as flow, temperature, or hydraulic conditions in accordance with the standards implementation procedures as amended. Site-specific, critical low-flow values require approval by the commission. The EPA must review any site-specific, critical low-flow values that could affect permits or other regulatory actions that are subject to approval by EPA. Critical low-flow values that have been determined for particular streams are listed in the standards implementation procedures. (B) Oyster waters. (i) A 1,000 foot buffer zone, measured from the shoreline at ordinary high tide, is established for all bay and gulf waters except those contained in river or coastal basins as defined in §307.2 of this title (relating to Description of Standards). Recreational criteria for indicator bacteria, as specified in §307.7(b)(1) of this title (relating to Site-Specific Uses and Criteria), are applicable within buffer zones. (ii) The criteria for median fecal coliform concentration in bay and gulf waters, exclusive of buffer zones, are 14 colonies per 100 mL with not more than 10% of all samples exceeding 43 colonies per 100 mL.(iii) Oyster waters should be maintained so that concentrations of toxic materials do not cause edible species of clams, oysters, and mussels to exceed accepted guidelines for the protection of public health. Guidelines are provided by the United States Food and Drug Administration Action Levels for molluscan shellfish, but additional information related to human health protection may also be considered in determining acceptable toxic concentrations. (4) Additional criteria. (A) Chemical parameters. Site-specific criteria for chloride, sulfate, and total dissolved solids are established as averages over an annual period for either a single sampling point or multiple sampling points. (B) pH. Site-specific numerical criteria for pH are established as absolute minima and maxima. (C) Temperature. Site-specific temperature criteria are established as absolute maxima. (D) Toxic materials. Criteria for toxic materials are established in §307.6 of this title (relating to Toxic Materials). (E) Nutrient criteria. Numeric and narrative criteria to preclude excessive growth of aquatic vegetation are intended to protect multiple uses such as primary, secondary, and noncontact recreation, aquatic life, and public water supplies. Nutrient numeric criteria for specific reservoirs, expressed as concentrations of chlorophyll a in water, are listed in Appendix F of §307.10 of this title. (5) Additional uses. Other basic uses, such as navigation, agricultural water supply, industrial water supply, seagrass propagation, and wetland water quality functions must be maintained and protected for all water in the state where these uses can be achieved.</content><note type="source"><p>Source Note: The provisions of this §307.7 adopted to be effective July 10, 1991, 16 TexReg 3400; amended to be effective July 13, 1995, 20 TexReg 4701; amended to be effective August 17, 2000, 25 TexReg 7722; amended to be effective July 22, 2010, 35 TexReg 6294; amended to be effective March 6, 2014, 39 TexReg 1450; amended to be effective March 1, 2018, 43 TexReg 1102; amended to be effective September 29, 2022, 47 TexReg 6216.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c307/sc/s307.8"><num value="307.8">§307.8</num><heading>Application of Standards</heading><content>(a) Flow conditions.(1) The following standards do not apply below critical low-flows:(A) site-specific criteria for dissolved oxygen, pH, temperature, and numerical chronic criteria for toxic materials, as listed in Appendices A, D, and E of §307.10 of this title (relating to Appendices A - G);(B) numerical chronic criteria for toxic materials as established in §307.6 of this title (relating to Toxic Materials);(C) total chronic toxicity restrictions as established in §307.6 of this title;(D) maximum temperature differentials as established in §307.4(f) of this title (relating to General Criteria); and(E) dissolved oxygen criteria for unclassified waters, as established in §307.4(h) of this title and §307.7(b)(3) of this title (relating to Site-Specific Uses and Criteria).(2) Critical low-flows for streams or rivers that are dominated by springflow are listed in the standards implementation procedures as amended and are calculated as follows:(A) for springflow-dominated streams or rivers that contain federally listed endangered or threatened aquatic or aquatic dependent species, the critical low-flow value is the 0.1 percentile value derived from a lognormal distribution for the period of record at the nearest United States Geological Survey (USGS) or International Boundary and Water Commission (IBWC) gauging station;(B) for springflow-dominated streams or rivers that do not contain federally listed endangered or threatened species, the critical low-flow value is the 5th percentile value of the flow data for the period of record at the nearest USGS or IBWC gauging station.(3) Numerical acute criteria for toxic materials and preclusion of total acute toxicity as established in §307.6 of this title are applicable at stream flows that are equal to or greater than one-fourth of critical low-flows.(4) Harmonic mean flow is the applicable upstream flow when calculating wastewater permit limits for criteria that are assessed as long-term means, such as criteria for total dissolved solids, chloride, sulfate in Appendix A of §307.10 of this title, and human health toxic criteria in Table 2 of §307.6(d)(1) of this title. These criteria are applicable at all flow conditions except as specified for the applicability of assessment data in §307.9 of this title (relating to Determination of Standards and Attainment).(5) Critical low-flows and harmonic mean flows for some classified segments are listed in the standards implementation procedures as amended. These critical low-flows are not for the purpose of regulating flows in water bodies in any manner or requiring that minimum flows be maintained in classified segments.(6) Critical low-flows and harmonic mean flows listed in the standards implementation procedures as amended apply only to river basin and coastal basin waters. They do not apply to bay waters, gulf waters, reservoirs, or estuaries.(7) Critical low-flows and harmonic mean flows in the standards implementation procedures as amended were calculated from historical USGS or IBWC daily streamflow records. If the calculated critical low-flow or harmonic mean flow value was equal to or less than 0.1 cubic foot per second (cfs), it was rounded up to 0.1 cfs.(8) Flow values are periodically recomputed to reflect alterations in the hydrologic characteristics of a segment, including reservoir construction, climatological trends, and other phenomena.(9) The general criteria are applicable at all flow conditions except as specified in this section or in §307.4 of this title.(b) Mixing zones. A reasonable mixing zone is allowed at the discharge point of permitted discharges into surface water in the state, in accordance with the following provisions.(1) The following portions of the standards do not apply within mixing zones:(A) site-specific criteria, as defined in §307.7 of this title and listed in Appendices A, D, E, F, and G of §307.10 of this title;(B) numerical chronic aquatic life criteria for toxic materials as established in §307.6 of this title;(C) total chronic toxicity restrictions as established in §307.6 of this title;(D) maximum temperature differentials as established in §307.4(f) of this title;(E) dissolved oxygen criteria for unclassified waters, as established in §307.4(h) of this title;(F) dissolved oxygen criteria for intermittent streams, as established in §307.4(h)(4) of this title;(G) aquatic recreation criteria for unclassified waters, as established in §307.4(j) of this title and in §307.7(b)(1) of this title;(H) specific human health criteria for concentrations in water to prevent contamination of drinking water, fish and shellfish so as to ensure safety for human consumption, as established in §307.6 of this title.(2) Numerical acute aquatic life criteria for toxic materials and preclusion of total acute toxicity as established in §307.6 of this title are applicable in mixing zones. Acute criteria and acute total toxicity levels may be exceeded in small zones of initial dilution (ZIDs) at discharge points of permitted discharges, but there must be no lethality to aquatic organisms that move through a ZID. ZIDs must not exceed the following sizes:(A) 60 feet downstream and 20 feet upstream from a discharge point in a stream and river. In addition, ZIDs in streams and rivers must not encompass more than 25% of the volume of stream flow at or above seven-day, two-year low-flow conditions;(B) a 25-foot radius in all directions (or equivalent volume or area for diffuser systems) from a discharge point in a lake or reservoir; and(C) a 50-foot radius in all directions (or equivalent volume or area for diffuser systems) from a discharge point in a bay, a tidal river, an estuary, or the Gulf of Mexico.(3) Provisions of the general criteria in §307.4 of this title remain in effect in mixing zones unless specifically exempted in this section.(4) Water quality standards do not apply to treated effluent at the immediate point of discharge prior to any contact with either ambient waters or a dry streambed. However, effluent total toxicity requirements may be specified to preclude acute lethality near discharge points, or to preclude acute and chronic instream toxicity.(5) Where a mixing zone is defined in a valid permit of the Texas Commission on Environmental Quality, the Railroad Commission of Texas, or the United States Environmental Protection Agency, the mixing zone defined in the permit must apply.(6) Mixing zones must not preclude passage of free-swimming or drifting aquatic organisms to the extent that aquatic life use is significantly affected, in accordance with guidelines specified in the standards implementation procedures as amended.(7) Mixing zones must not overlap unless it can be demonstrated that no applicable standards will be violated in the area of overlap. Existing and designated uses must not be impaired by the combined impact of a series of contiguous mixing zones.(8) Mixing zones must not encompass an intake for a domestic drinking water supply. Thermal mixing zones are excepted from this provision unless elevated temperatures adversely affect drinking water treatment.(9) Mixing zones must be individually specified for all permitted domestic discharges with a permitted monthly average flow equal to or exceeding one million gallons per day and for all permitted industrial discharges to water in the state (excepting discharges that consist entirely of stormwater runoff). For domestic discharges with permitted monthly average flows less than one million gallons per day, a small mixing zone must be assumed in accordance with guidelines for mixing zone sizes specified in the standards implementation procedures as amended; and the commission may require specified mixing zones as appropriate.(10) Different mixing zone sizes for specific numeric criteria, such as for the protection of human health, aquatic life, and temperature, may be specified in a wastewater permit.(c) Minimum analytical levels. The specified definition of permit compliance for a specific toxic material must not be lower than established minimum analytical levels, unless that toxic material is of particular concern in the receiving waters, or unless an effluent specific method detection limit has been developed in accordance with 40 Code of Federal Regulations Part 136. Minimum analytical levels are listed in the standards implementation procedures as amended.(d) Once-through cooling water discharges. When a discharge of once-through cooling water does not measurably alter intake concentrations of a pollutant, then water-quality based effluent limits for that pollutant are not required. For facilities that intake and discharge cooling water into different water bodies, this provision only applies if water quality and applicable water quality standards in the receiving water are maintained and protected.(e) Stormwater discharges. Pollution in stormwater must not impair existing or designated uses. Controls on the quality of stormwater discharges must be based on best management practices, technology-based limits, or both in combination with instream monitoring to assess standards attainment and to determine if additional controls on stormwater quality are needed. The standards implementation procedures as amended describe how water quality standards are applied to Texas Pollutant Discharge Elimination System stormwater discharges. The evaluation of instream monitoring data for standards attainment includes the effects of stormwater, as described in §307.9 of this title.</content><note type="source"><p>Source Note: The provisions of this §307.8 adopted to be effective July 10, 1991, 16 TexReg 3400; amended to be effective July 13, 1995, 20 TexReg 4701; amended to be effective August 17, 2000, 25 TexReg 7722; amended to be effective July 22, 2010, 35 TexReg 6294; amended to be effective March 6, 2014, 39 TexReg 1450.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c307/sc/s307.9"><num value="307.9">§307.9</num><heading>Determination of Standards Attainment</heading><content>(a) General standards attainment sampling and assessment procedures. The procedures listed in this section are solely for the purposes of assessing water quality monitoring data to determine if water quality standards are attained in individual water bodies. Unless otherwise stated in this chapter, additional details concerning sampling procedures for the measurement, collection, preservation and laboratory analysis of water quality samples are provided in the Texas Commission on Environmental Quality (TCEQ) Surface Water Quality Monitoring Procedures, Volume 1: Physical and Chemical Monitoring Methods (RG-415) as amended, the most recently published edition of the book entitled Standard Methods for the Examination of Water and Wastewater, 40 Code of Federal Regulations (CFR) Part 136, or other reliable sources acceptable to the commission. Laboratory accreditation requirements are specified in Chapter 25 of this title (relating to Environmental Testing Laboratory Accreditation and Certification). Unless otherwise stated in this chapter, additional details concerning how sampling data are evaluated to assess standards compliance are provided in the TCEQ Guidance for Assessing and Reporting Surface Water Quality in Texas as amended. (b) Samples to determine standards attainment are collected at locations approved by the commission. Samples collected at non-approved locations may be accepted at the discretion of the commission. Samples to determine standards attainment in ambient water must be representative in terms of location, seasonal variations, and hydrologic conditions. Locations must be typical of significant areas of a water body. Temporal sampling must be sufficient to appropriately address seasonal variations of concern. Sample results that are used to assess standards attainment must not include samples that are collected during extreme hydrologic conditions such as high-flows and flooding immediately after heavy rains. Further guidance on representative sampling, both spatially, temporally, and hydrologically, can be found in the TCEQ Surface Water Quality Monitoring Procedures, Volume 1: Physical and Chemical Monitoring Methods (RG-415), Surface Water Quality Monitoring Procedures, Volume 2: Methods for Collecting and Analyzing Biological Assemblage and Habitat (RG-416), and the TCEQ Guidance for Assessing and Reporting Surface Water Quality in Texas as amended. (c) Collection and preservation of water samples. (1) For the purposes of assessing standards attainment, samples are collected and preserved in accordance with procedures set forth in the most recently published edition of the book entitled Standard Methods for the Examination of Water and Wastewater, the TCEQ Surface Water Quality Monitoring Procedures, Volume 1: Physical and Chemical Monitoring Methods (RG-415) as amended, 40 CFR Part 136, or other reliable procedures acceptable to the commission. (2) Bacterial and temperature determinations must be conducted on samples or measurements taken at or near the surface in accordance with the TCEQ Surface Water Quality Monitoring Procedures, Volume 1: Physical and Chemical Monitoring Methods (RG-415) as amended. Depth collection procedures for chloride, sulfate, total dissolved solids, dissolved oxygen, chlorophyll a, and pH to determine standards attainment may vary depending on the water body being sampled. Standards for chloride, sulfate, total dissolved solids, dissolved oxygen, chlorophyll a, pH are applicable to the mixed surface layer, but a single sample taken near the surface normally provides an adequate representation of these parameters. When the water column is entirely mixed according to determinations described in TCEQ Guidance for Assessing and Reporting Surface Water Quality in Texas as amended, standards may apply to any sample taken in the water column for parameters indicated in this section. (3) For toxic materials, numerical aquatic life criteria are applicable to water samples collected at any depth. Numerical human health criteria are applicable to the average (arithmetic) concentration from the surface to the bottom. For the purposes of standards attainment for aquatic life protection and human health protection, samples that are collected at approximately one foot below the water surface are acceptable for assessing standards attainment of numerical criteria. (d) Sample analysis. (1) Numerical criteria. Procedures for laboratory analysis must be in accordance with the most recently published edition of the book entitled Standard Methods for the Examination of Water and Wastewater, the TCEQ Surface Water Quality Monitoring Procedures, Volume 1: Physical and Chemical Monitoring Methods (RG-415) as amended, 40 CFR Part 136, or other reliable procedures acceptable to the commission, and in accordance with Chapter 25 of this title. (2) Radioactivity. Measurements must be made on filtered samples to determine radioactivity associated with dissolved minerals in accordance with current analytical methodology approved by the EPA. (3) Toxicity. Bioassay techniques must be selected as testing situations dictate but are generally conducted using representative sensitive organisms in accordance with §307.6 of this title (relating to Toxic Materials). (e) Sampling periodicity and evaluation. (1) Chloride, sulfate, total dissolved solids. Standards attainment determinations to demonstrate compliance with the annual average may be based on the long term mean in accordance with TCEQ Guidance for Assessing and Reporting Surface Water Quality in Texas as amended. Results from all monitoring stations within the segment are used to allow for reasonable parametric gradients. Total dissolved solids determinations may be based on measurements of specific conductance. (2) Radioactivity. The impact of radioactive sources on surface waters must be evaluated in accordance with Chapter 336 of this title (relating to Radioactive Substance Rules), and in accordance with Chapter 290 of this title (relating to Public Drinking Water). (3) Bacteria.(A) For coastal recreation waters, as defined in §307.3 of this title (relating to Definitions and Abbreviations), standards attainment must be based on a geometric mean or a single sample criterion. Data are evaluated in accordance with §307.7(b)(1) of this title (relating to Site-Specific Uses and Criteria).(B) For inland waters (tidal rivers, high saline inland waters, and freshwater), and other non-coastal recreation waters, standards attainment must be based on a long-term geometric mean of applicable samples in accordance with the TCEQ's Guidance for Assessing and Reporting Surface Water Quality in Texas as amended. Data are evaluated in accordance with §307.7(b)(1) of this title.(C) Samples may be evaluated with the single sample criterion for the purposes of swimmer safety notification programs and wastewater permit compliance. (D) Determination of attainment may account for statistical variability to reduce uncertainty in evaluations in accordance with the TCEQ's Guidance for Assessing and Reporting Surface Water Quality in Texas. (4) Toxic materials. Standards attainment must be evaluated in accordance with §307.6 of this title, and in accordance with §307.8 of this title (relating to Application of Standards). To protect aquatic life, specific numerical acute toxic criteria are applied as 24-hour averages, and specific numerical chronic toxic criteria are applied as seven-day averages. Human health criteria are applied as long-term average exposure criteria designed to protect populations over a life time. Standards attainment for acute and chronic toxic criteria for aquatic life and human health criteria must be in accordance with the TCEQ Guidance for Assessing and Reporting Surface Water Quality in Texas as amended. Standards attainment for human health criteria must be based on the mean of samples collected in accordance with the TCEQ Guidance for Assessing and Reporting Surface Water Quality in Texas as amended. (5) Temperature and pH. Standards attainment must be in accordance with the TCEQ Guidance for Assessing and Reporting Surface Water Quality in Texas as amended. (6) Dissolved oxygen. (A) Criteria for daily (24-hour) average concentrations must be compared to a time-weighted average of measurements taken over a 24-hour period in accordance with TCEQ Guidance for Assessing and Reporting Surface Water Quality in Texas as amended. (B) Criteria for minimum concentrations must be compared to individual measurements in accordance with TCEQ Guidance for Assessing and Reporting Surface Water Quality in Texas as amended. When data are collected over a 24-hour period, the lowest measurement observed during that 24-hour period is compared to the applicable minimum criterion. (7) Assessment of chlorophyll a criteria in reservoirs. Procedures to determine standards attainment for chlorophyll a criteria in reservoirs must be in accordance with the TCEQ Guidance for Assessing and Reporting Surface Water Quality in Texas as amended, including the evaluation of multiple uses as indicated in §307.7(b)(4) of this title. Chlorophyll a criteria in individual reservoirs are found in Appendix F of §307.10 of this title (relating to Appendices A - G). The data for the assessment must be collected at the sampling stations used for calculating the criteria, as listed in Appendix F of §307.10 of this title, or from comparable stations in the main pool of the reservoir. Assessment values indicated in the TCEQ Guidance for Assessing and Reporting Surface Water Quality in Texas are to be used for assessment purposes only and are not to be used as water quality-based effluent limits in wastewater discharge permits for wastewater permitting. (8) Site-specific criteria for aquatic recreation (geometric mean), total dissolved solids, chloride, and sulfate as established in Appendix A of §307.10 of this title, and human health criteria as established in Table 2 of §307.6(d)(1) of this title do not apply in the following stream types and flow conditions: (A) perennial streams when flows are below 0.1 cubic feet per second; (B) intermittent streams when less than 20% of the stream bed of a 500 meter sampling reach is covered by pools; or when extremely dry conditions are indicated by comparable observations of flow severity. (f) Biological integrity. Biological integrity, which is an essential component of the aquatic life categories defined in §307.7(b)(3) of this title, is assessed by sampling the aquatic community. Attainment of biological integrity is assessed by indices of biotic integrity that are described in the TCEQ Surface Water Quality Monitoring Procedures, Volume 2: Methods for Collecting and Analyzing Biological Assemblage and Habitat Data (RG-416) as amended. Determination of attainment may account for statistical variability to reduce uncertainty in evaluations in accordance with TCEQ Guidance for Assessing and Reporting Surface Water Quality in Texas as amended. Primary criteria associated with assessing the attainment of aquatic life uses are indices of biotic integrity and criteria for dissolved oxygen. When the appropriate aquatic life use as determined by the use-attainability study is less stringent than the presumed high use, then the appropriate aquatic life use and dissolved oxygen criteria are listed in Appendix D of §307.10 of this title after approval by EPA. (g) Additional parameters. Assessment of narrative criteria parameters must be performed in accordance with the TCEQ Guidance for Assessing and Reporting Surface Water Quality in Texas as amended.</content><note type="source"><p>Source Note: The provisions of this §307.9 adopted to be effective July 10, 1991, 16 TexReg 3400; amended to be effective July 13, 1995, 20 TexReg 4701; amended to be effective August 17, 2000, 25 TexReg 7722; amended to be effective July 22, 2010, 35 TexReg 6294; amended to be effective March 6, 2014, 39 TexReg 1450; amended to be effective March 1, 2018, 43 TexReg 1102.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c307/sc/s307.10"><num value="307.10">§307.10</num><heading>Appendices A - G</heading><content>The following appendices are integral components of this chapter of the Texas Surface Water Quality Standards.(1) Appendix A - Site-specific Uses and Criteria for Classified Segments:Attached Graphic(2) Appendix B - Sole-source Surface Drinking Water Supplies: Attached Graphic(3) Appendix C - Segment Descriptions:Attached Graphic(4) Appendix D - Site-specific Uses and Criteria for Unclassified Water Bodies:Attached Graphic(5) Appendix E - Site-specific Toxic Criteria:Attached Graphic(6) Appendix F - Site-specific Nutrient Criteria for Selected Reservoirs:Attached Graphic(7) Appendix G - Site-specific Recreational Uses and Criteria for Unclassified Water Bodies:Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §307.10 adopted to be effective July 10, 1991, 16 TexReg 3400; amended to be effective November 13, 1992, 17 TexReg 7661; amended to be effective July 13, 1995, 20 TexReg 4701; amended to be effective April 30, 1997, 22 TexReg 3712; amended to be effective August 17, 2000, 25 TexReg 7722; amended to be effective July 22, 2010, 35 TexReg 6294; amended to be effective March 6, 2014, 39 TexReg 1450; amended to be effective March 1, 2018, 43 TexReg 1102; amended to be effective September 29, 2022, 47 TexReg 6216.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c309"><num value="309">CHAPTER 309</num><heading>DOMESTIC WASTEWATER EFFLUENT LIMITATION AND PLANT SITING</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c309/scA"><num value="A">SUBCHAPTER A</num><heading>EFFLUENT LIMITATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c309/scA/s309.1"><num value="309.1">§309.1</num><heading>Scope and Applicability</heading><content>(a) The purpose of this subchapter is to promulgate a set of effluent quality limitations for treated domestic sewage which will be required of permittees as appropriate to maintain water quality in accordance with the commission's surface water quality standards. Any incorporation of federal regulations into this chapter shall apply only to disposal of domestic sewage.(b) Secondary treatment, with exceptions applicable to certain stabilization pond systems and other natural systems, is defined as a minimum reduction of pollutants to meet the quality specified in Figure: 30 TAC §309.1(b): Attached Graphic(c) Effective April 1988, all permits containing an ammonia-nitrogen effluent limit are modified to change Biochemical Oxygen Demand (BOD5 ) to carbonaceous biochemical oxygen demand (CBOD5 ).(d) Effective January 1, 1988, any permit containing a BOD5 effluent limitation may be monitored and reported as CBOD5 as long as nitrogen is monitored and reported as ammonia-nitrogen at the same sampling frequency. If the permit authorizes a discharge to land or an evaporation pond only, ammonia-nitrogen monitoring and reporting are not required to change to CBOD5 .(e) The state of Texas has established a state water quality management program and a continuing planning process which sets forth the strategy and procedures for accomplishing the management program's objectives. Essential elements of the program include updates of basin plans, total maximum daily loads, and wasteload evaluations by basin segments. In order to achieve compliance with water quality standards within certain segments, more stringent effluent quality limitations other than basic secondary treatment may be required to protect water quality.</content><note type="source"><p>Source Note: The provisions of this §309.1 adopted to be effective March 19, 1990, 15 TexReg 1160; amended to be effective October 8, 1990, 15 TexReg 5500; amended to be effective June 5, 1998, 23 TexReg 5723; amended to be effective January 9, 2020, 45 TexReg 370.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c309/scA/s309.2"><num value="309.2">§309.2</num><heading>Rationale for Effluent Sets</heading><content>(a) The effluent sets in §309.4 of this title (relating to Table 1, Effluent Limitations for Domestic Wastewater Treatment Plants) are intended to represent standard levels of treatment normally required for domestic wastewater treatment plants.(b) Modifications to the effluent sets listed in §309.4 of this title may be considered by the commission when effluent limits more stringent than secondary treatment are required in order to maintain desired water quality levels.(c) On a case-by-case basis, modifications to the effluent sets listed in §309.4 of this title may be considered by the commission for certain existing, natural systems which cannot consistently meet pH or total suspended solids (TSS) limitations due to the inherent variability of a particular system. Modifications to the effluent sets may be allowed for a natural system designed for treatment or polishing with a discharge directly into surface water in the state. Natural systems include, but are not necessarily limited to, aerated lagoons followed by stabilization ponds, facultative ponds, stabilization ponds, and constructed wetlands. For the purpose of this chapter, playa lakes are not considered natural systems. The commission will consider the following factors in approving a modification to the effluent sets:(1) Any modification shall not allow a discharge which would cause a violation of the commission's surface water quality standards or any applicable total maximum daily loads or wasteload evaluation.(2) A proposal for a modification must be supported by an engineering report, prepared and sealed by a licensed Texas professional engineer representing the permit applicant, which justifies the request for modification with specific information relating to the proposed design and that design's inherent limitations. For considering a request for modification of an existing system that cannot achieve permitted pH or TSS limitations, the engineering report must also document past efforts of design modification, operation, and maintenance, and include data showing for the past three years, influent and effluent hydraulic and organic loadings and the resultant effluent quality achieved.(3) The commission may set narrative effluent limitations and effluent monitoring requirements as an alternative to a specific numerical effluent limitation when a specific numeric effluent limitation cannot be met because of, but not limited to, seasonal or operational factors. These narrative requirements shall ensure that necessary operational and maintenance actions are consistently carried out by the permittee to meet applicable water quality standards. The commission may request resumption of the original numerical limitations during the next permit renewal or amendment based on a review of the discharge effluent data.(4) The commission may suspend setting a specific numerical effluent limitation for a temporary period of time not to exceed the remainder of the permit term, pending a review of the actual performance of a natural system's design as long as the facility meets paragraph (1) of this subsection. During any temporary suspension, the permittee must document that the system is operated and maintained for optimal performance in accordance with an operation and maintenance manual prepared in accordance with Chapter 217 of this title (relating to Design Criteria for Domestic Wastewater Systems) or Chapter 317 of this title (relating to Design Criteria Prior to 2008) as applicable and is meeting water quality standards. After review of performance data and related information submitted by the permittee in a permit application, for permit renewal or amendment, or when submitted at the request of the executive director, the commission may set specific numerical effluent limitations consistent with this subchapter and the performance documented for the particular system.</content><note type="source"><p>Source Note: The provisions of this §309.2 adopted to be effective July 27, 1988, 13 TexReg 3514; amended to be effective June 5, 1998, 23 TexReg 5723; amended to be effective January 9, 2020, 45 TexReg 370.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c309/scA/s309.3"><num value="309.3">§309.3</num><heading>Application of Effluent Sets</heading><content>(a) Discharges into effluent limited segments.(1) All discharges into effluent limited segments shall, at a minimum, achieve secondary treatment. An effluent limited segment is any segment which is presently meeting or will meet applicable water quality criteria following incorporation of secondary treatment for domestic sewage treatment plants and/or best practicable treatment for industries.(2) New or increased discharges into effluent limited segments shall achieve that level of treatment deemed necessary by the commission, based on the assimilative capacity and uses of the receiving stream.(b) Discharges into water quality impaired segments.(1) All discharges into water quality impaired segments for which evaluations have been developed shall, at a minimum, achieve the treatment level specified in the recommendations of the evaluation for that discharge. An impaired segment is a surface water segment classified by the commission as water quality limited where conventional treatment of wastewater discharged to the segment is not stringent enough for the segment to meet applicable water quality standards; monitoring data have shown significant violations of water quality standards; advanced waste treatment for point sources is required to protect existing exceptional water quality; or the segment is a public domestic water supply reservoir used to supply drinking water.(2) Discharges into water quality impaired segments for which wasteload evaluations or total maximum daily loads have not been developed shall, at a minimum, achieve secondary treatment as provided by §309.1 of this title (relating to Scope and Applicability). (c) Discharges into certain reservoirs. Any discharge made within five miles upstream of a reservoir or lake which is subject to on-site/private sewage facility regulation adopted under Texas Water Code, Chapter 26 or Texas Civil Statutes, Article 4477-7e, or which may be used as a source for public drinking water supply shall achieve, at a minimum, Effluent Set 2 in §309.4 of this title (relating to Table 1, Effluent Limitations for Domestic Wastewater Treatment Plants). Five miles shall be measured in stream miles from the normal conservation pool elevation. The commission may grant exceptions to this requirement where it can be demonstrated that the exception would not adversely impact water quality.(d) Discharges from stabilization ponds. Effluent Set 3 in §309.4 of this title shall apply to stabilization pond facilities in which stabilization ponds are the primary process used for secondary treatment and in which the ponds have been designed and constructed in accordance with applicable design criteria. Effluent Set 3 in §309.4 of this title is considered equivalent to secondary treatment for stabilization pond systems.(e) Discharge to an evaporation pond. Effluent discharged to evaporation ponds must receive, at a minimum, primary treatment, be within the pH limits of 6.0 - 9.0 standard units, and have a quality of 100 milligrams per liter (mg/l) five-day biochemical oxygen demand or less on a grab sample. For the purpose of this subsection, primary treatment means solids separation which is typically accomplished by primary clarifiers, Imhoff tanks, facultative lagoons, septic tanks, and other such units.(f) Land application of treated effluent. The commission may authorize land application of treated effluent when the applicant demonstrates that the quality of water in the state will not be adversely affected. Each project must be consistent with laws relating to water rights. The primary purpose of such a project must be to dispose of treated effluent and/or to further enhance the quality of effluent prior to discharge. For the purpose of this subsection, primary treatment means solids separation which is typically accomplished by primary clarifiers, Imhoff tanks, facultative lagoons, septic tanks, and other such units.(1) When irrigation systems ultimately dispose of effluent on land to which the public has access, Effluent Set 4 in §309.4 of this title, at a minimum, shall apply. The pH shall be within the limits of 6.0 - 9.0 standard units unless a specific variance is provided in the permit based upon site-specific conditions. When irrigation systems ultimately dispose of effluent on land to which the public does not have access, the effluent must, at a minimum, receive primary treatment and Effluent Set 5 in §309.4 of this title, at a minimum, shall apply and the pH shall be within the limits of 6.0 - 9.0 standard units unless a specific variance is provided in the permit based upon site-specific conditions. Effluent may be used for irrigation only when consistent with Subchapters B and C of this chapter (relating to Location Standards and Land Application of Sewage Effluent).(2) When overland flow systems are utilized for effluent treatment, the public shall not have access to the treatment area. (A) For land application permits, primary treated effluent meeting Effluent Set 6 in §309.4 of this title, within the pH limits of 6.0 - 9.0 standard units may be used consistent with environmental safeguards and protection of water in the state. (B) For discharge permits, at a minimum, Effluent Set 1 in §309.4 of this title shall apply to discharges from overland flow facilities except where more stringent treatment levels are required to meet water quality standards.(3) When evapotranspiration beds, low pressure dosing, or similar soil absorption systems are utilized for on-site land application, the effluent shall, at a minimum, receive primary treatment and meet Effluent Set 7 in §309.4 of this title. Use of these on-site systems shall be consistent with environmental safeguards and the protection of water in the state.(4) When subsurface area drip dispersal systems, or similar soil absorption systems ultimately dispose of effluent on land where there is the significant potential for public contact, as defined in §222.5 of this title (relating to Definitions), Effluent Set 4 in §309.4 of this title, at a minimum, shall apply. The pH shall be within the limits of 6.0 - 9.0 standard units unless a specific variance is provided in the permit based upon site-specific conditions.(5) When subsurface area drip dispersal systems, or similar soil absorption systems ultimately dispose of effluent on land where there is the minimal potential for public contact, as defined in §222.5 of this title, Effluent Set 5 in §309.4 of this title, at a minimum, shall apply. The pH shall be within the limits of 6.0 - 9.0 standard units unless a specific variance is provided in the permit based upon site-specific conditions.(6) Treated effluent may be land applied only when consistent with Subchapters B and C of this chapter. Use of subsurface area drip dispersal systems shall be consistent with environmental safeguards and the protection of water in the state.(g) Disinfection.(1) Except as provided in this subsection, disinfection in a manner conducive to the protection of both public health and aquatic life shall be achieved on all domestic wastewater which discharges into water in the state. Any appropriate process may be considered and approved on a case-by-case basis.(2) Where chlorination is utilized, any combination of detention time and chlorine residual where the product of chlorine (mg/l) X Time (minutes) equals or exceeds 20 is satisfactory provided that the minimum detention time is at least 20 minutes and the minimum residual is at least 0.5 mg/l. The maximum chlorine residual in any discharge shall in no event be greater than four mg/l per grab sample, or that is necessary to protect aquatic life.(3) On a case-by-case basis, the commission will allow chlorination or disinfection alternatives to the specific criteria of time and detention described in paragraph (2) of this subsection that achieve equivalent water quality protection. These alternatives will be considered and their performance standards determined based upon supporting data submitted in an engineering report, prepared and sealed by a licensed Texas professional engineer. The report should include supporting data, performance data, or field tracer studies, as appropriate. The commission will establish effluent limitations as necessary to verify disinfection is adequate, including chlorine residual testing, other chemical testing, and bacteria testing as specified in subsection (h) or (i) of this section.(4) Except as provided in this subsection, disinfection of domestic wastewater which is discharged by means of land application or evaporation pond shall be reviewed on a case-by-case basis to determine the need for disinfection. All effluent discharged to land to which the public has access must be disinfected and if the effluent is to be transferred to a holding pond or tank, the effluent shall be rechlorinated to a trace chlorine residual at the point of irrigation application. All effluent discharged to land via a subsurface area drip dispersal system to which there is a potential for public contact shall be disinfected and shall comply with an Escherichia coli (E. coli) bacteria effluent limitation of 126 colony forming units per 100 milliliters of water or a fecal coliform effluent limitation of 200 colony forming units per 100 milliliters water, per grab sample, in accordance with paragraph (1) of this subsection.(5) Unless otherwise specified in a permit, chemical disinfection is not required for stabilization ponds when the total retention time in the free-water-surface ponds (based on design flow) is at least 21 days.(h) Effluent limitations for bacteria.(1) To demonstrate the disinfection level in effluent discharged into water in the state by its wastewater treatment facility, a permittee shall measure the amount of bacteria in the effluent.(A) E. coli must be the indicator bacteria measured for discharges to fresh water.(B) Enterococci must be the indicator bacteria measured for discharges to salt water.(2) The monthly average bacteria effluent limitation in a Texas Pollutant Discharge Elimination System (TPDES) permit must be the applicable geometric mean for the most stringent contact recreation category as specified in Chapter 307 of this title (relating to Texas Surface Water Quality Standards).(3) The daily maximum bacteria effluent limitation in a TPDES permit must be the applicable single grab sample for the most stringent contact recreation category in Chapter 307 of this title.(i) More stringent requirements. The commission may impose more stringent requirements in permits than those specified in subsections (a) - (h) of this section, on a case-by-case basis, where appropriate to maintain desired water quality levels or protect human health.</content><note type="source"><p>Source Note: The provisions of this §309.3 adopted to be effective March 19, 1990, 15 TexReg 1160; amended to be effective June 5, 1998, 23 TexReg 5723; amended to be effective July 5, 2006, 31 TexReg 5336; amended to be effective November 26, 2009, 34 TexReg 8327; amended to be effective January 9, 2020, 45 TexReg 370.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c309/scA/s309.4"><num value="309.4">§309.4</num><heading>Table 1, Effluent Limitations for Domestic Wastewater Treatment Plants</heading><content>Figure: 30 TAC §309.4 contains the effluent limitations for domestic wastewater treatment plants.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §309.4 adopted to be effective March 19, 1990, 15 TexReg 1160; amended to be effective June 5, 1998, 23 TexReg 5723; amended to be effective July 5, 2006, 31 TexReg 5336; amended to be effective January 9, 2020, 45 TexReg 370.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c309/scB"><num value="B">SUBCHAPTER B</num><heading>LOCATION STANDARDS</heading><section identifier="/us/state/tx/tac/t30/p1/c309/scB/s309.10"><num value="309.10">§309.10</num><heading>Purpose, Scope, and Applicability</heading><content>(a) This subchapter establishes minimum standards for the location of domestic wastewater treatment facilities. These standards are to be applied in the evaluation of an application for a permit to treat and dispose of domestic wastewater and for obtaining approval of construction plans and specifications. This subchapter applies to domestic wastewater permit applications and construction plans and specifications filed on or after October 8, 1990, for new facilities and substantial changes in the function or use of existing units.(b) The purpose of this subchapter is to condition issuance of a permit and/or approval of construction plans and specifications for new domestic wastewater treatment facilities or the substantial change in the function or use of an existing unit on selection of a site that minimizes possible contamination of water in the state; to define the characteristics that make an area unsuitable or inappropriate for a wastewater treatment facility; to minimize the possibility of exposing the public to nuisance conditions; and to prohibit issuance of a permit for a facility to be located in an area determined to be unsuitable or inappropriate, unless the design, construction, and operational features of the facility will mitigate the unsuitable site characteristics.</content><note type="source"><p>Source Note: The provisions of this §309.10 adopted to be effective March 19, 1990, 15 TexReg 1160; amended to be effective June 5, 1998, 23 TexReg 5723; amended to be effective January 9, 2020, 45 TexReg 370.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c309/scB/s309.11"><num value="309.11">§309.11</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Active geologic processes--Any natural process which alters the surface and/or subsurface of the earth, including, but not limited to, erosion (including shoreline erosion along the coast), submergence, subsidence, faulting, karst formation, flooding in alluvial flood wash zones, meandering river bank cutting, and earthquakes.(2) Aquifer--A geologic formation, group of formations, or part of a formation capable of yielding a significant amount of groundwater to wells or springs. Portions of formations, such as clay beds, which are not capable of yielding a significant amount of groundwater to wells or springs are not aquifers.(3) Erosion--The group of natural processes, including weathering, deterioration, detachment, dissolution, abrasion, corrosion, wearing away, and transportation, by which earthen or rock material is removed from any part of the earth's surface.(4) Existing facility--Any facility used for the storage, processing, or application of domestic wastewater and which has obtained approval of construction plans and specifications as of March 1, 1990.(5) New facility--Any domestic wastewater treatment facility which is not an existing facility.(6) Nuisance odor prevention--The reduction, treatment, and dispersal of potential odor conditions that interfere with another's use and enjoyment of property that are caused by or generated from a wastewater treatment plant unit, which conditions cannot be prevented by normal operation and maintenance procedures of the wastewater treatment unit.(7) One hundred-year flood plain--Any land area which is subject to a 1.0% or greater chance of flooding in any given year from any source.(8) Substantial change in the function or use--An increase in the pollutant load or modification in the existing purpose of the unit.(9) Wastewater treatment plant unit--Any apparatus necessary for the purpose of providing treatment of wastewater (i.e., aeration basins, splitter boxes, bar screens, sludge drying beds, clarifiers, overland flow sites, treatment ponds or basins that contain wastewater, etc.). For purposes of compliance with the requirements of §309.13(e) of this title (relating to Unsuitable Site Characteristics), this definition does not include off-site bar screens, off-site lift stations, flow metering equipment, or post-aeration structures needed to meet permitted effluent minimum dissolved oxygen limitations.(10) Wetlands--Those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, playa lakes, and similar areas.</content><note type="source"><p>Source Note: The provisions of this §309.11 adopted to be effective March 19, 1990, 15 TexReg 1160; amended to be effective June 5, 1998, 23 TexReg 5723; amended to be effective January 9, 2020, 45 TexReg 370.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c309/scB/s309.12"><num value="309.12">§309.12</num><heading>Site Selection to Protect Water in the State</heading><content>The commission may not issue a permit for a new facility or for the substantial change of an existing facility unless it finds that the proposed site, when evaluated in light of the proposed design, construction or operational features, minimizes possible contamination of water in the state. In making this determination, the commission may consider the following factors:(1) active geologic processes;(2) groundwater conditions such as groundwater flow rate, groundwater quality, length of flow path to points of discharge, and aquifer recharge or discharge conditions;(3) soil conditions such as stratigraphic profile and complexity, hydraulic conductivity of strata, and separation distance from the facility to the aquifer and points of discharge to surface water in the state; and(4) climatological conditions.</content><note type="source"><p>Source Note: The provisions of this §309.12 adopted to be effective March 19, 1990, 15 TexReg 1160; amended to be effective June 5, 1998, 23 TexReg 5723; amended to be effective January 9, 2020, 45 TexReg 370.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c309/scB/s309.13"><num value="309.13">§309.13</num><heading>Unsuitable Site Characteristics</heading><content>(a) A wastewater treatment plant unit may not be located in the 100-year flood plain unless the plant unit is protected from inundation and damage that may occur during that flood event.(b) A wastewater treatment plant unit may not be located in wetlands. (This prohibition is not applicable to constructed wetlands.) (c) A wastewater treatment plant unit may not be located closer than 500 feet from a public water well as provided by §290.41(c)(1)(B) of this title (relating to Water Sources) nor 250 feet from a private water well. The following separation distances apply to any facility used for the storage, processing, or application of domestic wastewater. Exceptions to these requirements will be considered at the request of a permit applicant on a case-by-case basis, and alternative provisions will be established in a permit if the alternative condition provides adequate protection to potable water sources and supplies. (1) A wastewater treatment plant unit, or land where irrigation using wastewater effluent occurs must be located a minimum horizontal distance of 150 feet from a private water well. (2) A wastewater treatment plant unit, or land where irrigation using wastewater effluent occurs, must be located a minimum horizontal distance of 500 feet from an elevated or ground potable-water storage tank as provided by §290.43(b)(1) of this title (relating to Water Storage). (3) A wastewater treatment plant unit, or land where irrigation using wastewater effluent occurs, must be located a minimum horizontal distance of 500 feet from a public water well site as provided by §290.41(c)(1)(C) of this title, spring, or other similar sources of public drinking water. (4) A wet well or pump station at a wastewater treatment facility must be located a minimum horizontal distance of 300 feet from a public water well site, spring, or other similar sources of public drinking water as provided by §290.41(c)(1)(B) of this title. (5) A wastewater treatment plant unit, or land where irrigation using wastewater effluent occurs, must be located a minimum horizontal distance of 500 feet from a surface water treatment plant as provided by §290.42(a)(2)(A) of this title (relating to Water Treatment).(d) A wastewater treatment facility surface impoundment may not be located in areas overlying the recharge zones of major or minor aquifers, as defined by the Texas Water Development Board, unless the aquifer is separated from the base of the containment structure by a minimum of three feet of material with a hydraulic conductivity toward the aquifer not greater than 10-7 cm/sec or a thicker interval of more permeable material which provides equivalent or greater retardation of pollutant migration. A synthetic membrane liner may be substituted with a minimum of 40 mils thickness and an underground leak detection system with appropriate sampling points.(e) One of the following alternatives must be met as a compliance requirement to abate and control a nuisance of odor prior to construction of a new wastewater treatment plant unit, or substantial change in the function or use of an existing wastewater treatment unit. (1) Lagoons with zones of anaerobic activity (e.g., facultative lagoons, un-aerated equalization basins, etc.) may not be located closer than 500 feet to the nearest property line. All other wastewater treatment plant units may not be located closer than 150 feet to the nearest property line. Land used to treat primary effluent is considered a plant unit. Buffer zones for land used to dispose of treated effluent by irrigation shall be evaluated on a case-by-case basis. The permittee must hold legal title or have other sufficient property interest to a contiguous tract of land necessary to meet the distance requirements specified in this paragraph during the time effluent is disposed by irrigation. (2) The applicant must submit a nuisance odor prevention request for approval by the executive director. A request for nuisance odor prevention must be in the form of an engineering report, prepared and sealed by a licensed Texas professional engineer in support of the request. At a minimum, the engineering report shall address existing climatological conditions such as wind velocity and atmospheric stability, surrounding land use which exists or which is anticipated in the future, wastewater characteristics in affected units pertaining to the area of the buffer zone, potential odor generating units, and proposed solutions to prevent nuisance conditions at the edge of the buffer zone and beyond. Proposed solutions shall be supported by actual test data or appropriate calculations. The request shall be submitted, prior to construction, either with a permit application and subject to review during the permitting process or submitted for executive director approval after the permitting process is completed. (3) The permittee must submit sufficient evidence of legal restrictions prohibiting residential structures within the part of the buffer zone not owned by the applicant. Sufficient evidence of legal restriction may, among others, take the form of a suitable restrictive easement, right-of-way, covenant, deed restriction, deed recorded, or a private agreement provided as a certified copy of the original document. The request shall be submitted, prior to construction, either with a permit application and subject to review during the permitting process or submitted for executive director approval after the permitting process is completed.(f) For a facility for which a permit application, other than a renewal application, is made after October 8, 1990, if the facility will not meet the buffer zone requirement by one of the alternatives described in subsection (e) of this section, the applicant shall include in the application for the discharge permit a request for a variance. A variance will be considered on a case-by-case basis and, if granted by the commission, shall be included as a condition in the permit. This variance may be granted by the commission, consistent with the policies set out in Texas Water Code, §26.003.(g) Any approved alternative for achieving the requirements of this section must remain in effect as long as the wastewater treatment plant is permitted by the commission. To comply with this requirement, the permittee must carry out the nuisance odor prevention plan at all times, shall ensure sufficient property ownership or interest and shall maintain easements prohibiting residential structures, as appropriate.(h) For a permitted facility undergoing renewal of an existing permit with plans and specifications approved prior to March 1, 1990, for which no design change is requested, the facility will not be required to comply with the requirements of this section.(i) Facilities for which plans and specifications have been approved prior to March 1, 1990, are not required to resubmit revised plans and specifications to meet changed requirements in this section in obtaining renewal of an existing permit.</content><note type="source"><p>Source Note: The provisions of this §309.13 adopted to be effective March 19, 1990, 15 TexReg 1160; amended to be effective October 8, 1990, 15 TexReg 5500; amended to be effective June 5, 1998, 23 TexReg 5723; amended to be effective January 9, 2020, 45 TexReg 370.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c309/scB/s309.14"><num value="309.14">§309.14</num><heading>Prohibition of Permit Issuance</heading><content>(a) The commission may not issue, amend, or renew a permit for a wastewater treatment plant if the facility does not meet the requirements of §309.13 of this title (relating to Unsuitable Site Characteristics).(b) Nothing in this chapter shall be construed to require the commission to issue a permit, regardless of whether the proposed facility would satisfy the requirements of §309.12 of this title (relating to Site Selection to Protect Water in the State) and §309.13 of this title.</content><note type="source"><p>Source Note: The provisions of this §309.14 adopted to be effective March 19, 1990, 15 TexReg 1160; amended to be effective June 5, 1998, 23 TexReg 5723; amended to be effective January 9, 2020, 45 TexReg 370.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c309/scC"><num value="C">SUBCHAPTER C</num><heading>LAND APPLICATION OF SEWAGE EFFLUENT</heading><section identifier="/us/state/tx/tac/t30/p1/c309/scC/s309.20"><num value="309.20">§309.20</num><heading>Land Application of Sewage Effluent</heading><content>(a) Technical report. Each project shall be accompanied by a preliminary engineering report outlining the design of the wastewater application system. The report shall include maps, diagrams, basis of design, calculations, and other pertinent data as described in this section.(1) Location.(A) Site map. A copy of the United States Geological Survey 7 1/2 minute topographic map or equivalent for renewals of the area which indicates the exact boundaries of the application operation must be included in the technical report. A map from the 7 1/2 minute series is required if it is published for the site area.(B) Site drawing. A scale drawing and legal description of all land which is to be a part of the application operation will be included in the technical report. The drawing must show the location of all existing and proposed facilities to include: buildings, wastewater application or treatment facilities, effluent storage and tail water control facilities, buffer zones, and water wells. This drawing must have an index of wells, adjacent property, and other prominent features. Ownership of land tracts adjacent to the irrigated land shall be shown on the site drawing and identified by listing legal ownership.(2) Geology. The existence of any unusual geological formations such as faults or sink holes on the wastewater application site shall be noted in the technical report and identified on the site map. The conceptual design of the wastewater application system shall include appropriate engineering considerations with respect to limitations presented by these features.(3) Soils. A general survey of soils with regard to standard classifications shall be compiled for all areas of wastewater application to the soil. Soil surveys compiled by the United States Department of Agriculture Natural Resources Conservation Service shall be utilized where available. Conceptual design aspects related to wastewater application rates, crop systems, seepage, and runoff controls shall be based upon the soil physical and chemical properties, hydraulic characteristics, and crop use suitabilities for the wastewater application site.(4) Groundwater quality. The technical report shall fully assess the impact of the wastewater application operation on the uses of local groundwater resources. In regard to performing this assessment, the report shall systematically address subparagraphs (A) and (B) of this paragraph.(A) All water wells within a 1/2 mile radius of the application site boundaries shall be located. If available, the water uses from each well shall be identified. In addition, aspects of construction such as well logs, casing, yield, static elevation, water quality, and age shall be furnished and evaluated in the technical report. Local groundwater resources below the wastewater application site shall be monitored to establish preoperational baseline groundwater quality when monitoring wells are available. Monitoring shall provide the following analytical determination: total dissolved solids, nitrate nitrogen, chlorides, sulfates, pH, and Escherichia coli bacteria.(B) Groundwater resources serving as sources or potential sources of domestic raw water supply will be protected by limiting wastewater application rates. Effluent storage and/or treatment ponds presenting seepage hazards to these groundwater resources shall be constructed with adequate liners.(5) Agricultural practice. The technical report shall describe the crop system proposed for the wastewater application operation. This description shall include a discussion of the adaptability of the crop to the particular soil, climatological, and wastewater sensitivity conditions that will exist at the wastewater application site. Annual nutrient uptake of the crop system shall be specified, and crop harvesting frequencies shall be described within the report.(b) Irrigation. Irrigation application systems utilize effluent to supply the growth needs of the cover crop.(1) Secondary effluent. Land application system operators who use land accessible to the general public shall provide a degree of treatment equivalent to secondary treatment standards, as required by §309.3(f)(1) of this title (relating to Application of Effluent Sets), prior to application of wastewater to land areas.(2) Primary effluent. Land application systems may provide for the application of effluent from primary treatment units provided that the wastewater application system conforms with the requirements contained in subparagraphs (A) - (E) of this paragraph.(A) The wastewater application system shall be designed and operated to prevent a discharge from entering surface water in the state, and to prevent recharge of groundwater resources which supply or offer the potential of supplying domestic raw water.(B) The land application system shall be designed and operated to achieve application of effluent without adversely affecting the agricultural productivity of the land application site.(C) The economic benefits derived from agricultural operations carried out at the land application site are secondary to the proper application of wastewater.(D) The sewerage system owner shall maintain direct responsibility and control over all aspects of the sewage pretreatment and application operations, as well as all aspects of any agricultural activities carried out on the application site.(E) The land application system shall contain sufficient area to provide for normal expansion of the facility service area. In most cases, the application system shall have a design life of at least 20 years.(3) Design analysis. The designing engineers shall utilize a detailed design analysis of limiting hydraulic and nutrient application rates, and effluent storage needs, as the basis of the application system design. All projects shall include the detailed design analysis described in subparagraphs (A) - (C) of this paragraph.(A) Hydraulic application rate. A water balance study shall be provided as a part of a detailed application rate analysis in order to determine the irrigation water requirement, including a leaching requirement if needed, for the crop system on the wastewater application areas. The water balance study should generally follow the example shown in Table 1 in Figure: 30 TAC §309.20(b)(3)(B). Precipitation inputs to the water balance shall utilize the average yearly rainfall and the monthly precipitation distribution based on past rainfall records. The consumptive use requirements (evapotranspiration losses) of the crop system shall be developed on a monthly basis. The method of determining the consumptive use requirement shall be documented as a part of the water balance study. A leaching requirement, calculated as shown in Table 1 of this subparagraph, shall be included in the water balance study when the total dissolved solids concentration of the effluent presents the potential for developing excessive soil salinity buildup due to the long term operation of the irrigation system.(B) Effluent storage. An effluent storage study shall be performed to determine the necessary storage requirements. The storage requirements shall be based on a design rainfall year with a return frequency of at least 25 years (the expected 25 year-one year rainfall, alternately the highest annual rainfall during the last 25 years of record may be used) and a normal monthly distribution, the application rate and cycle, the effluent available on a monthly basis, and evaporation losses. An example of an effluent storage study is shown in Table 3 in Figure: 30 TAC §309.20(b)(3)(B).Attached Graphic(C) Nitrogen application rate. Irrigation shall be limited to prevent excessive nitrogen application. The annual liquid loading shall not exceed that which would introduce more nitrogen than is annually required by the crop plus 20% volatilization. Values of crop nitrogen requirements shall be justified in the design report. The application rate shall be calculated by the formula in Figure: 30 TAC §309.20(b)(3)(C).Attached Graphic(4) Soil testing. Representative soil samples shall be taken from the root zones of wastewater application sites to establish preoperational soil concentrations of pH, total nitrogen, potassium, phosphorus, and conductivity. Sampling procedures shall employ accepted techniques of soil science for obtaining representative analytical results. Preoperational soil concentration of the parameters listed in this paragraph shall be furnished in the technical report. The project development shall provide for a minimum of one soil test annually from each wastewater application site for the duration of the application system design life.(5) Standard irrigation best management practices.(A) Screening devices should be installed on all lift pump suction intakes.(B) The design of sprinkler irrigation systems should allow operational flexibility and efficiency and ease of maintenance.(i) The system should be designed to provide a uniform water distribution.(ii) The designing engineer should consider such items as permanently buried mains with readily accessible valve boxes, two or more lateral lines, and quick coupling valves at the main/lateral connections.(iii) Cross connection with a potable water supply system is prohibited. Cross connection with a well water system will be reviewed on a case-by-case basis.(C) Vehicular access to conveyance system locations and equipment should be provided at intervals of 1,000 feet to 1,300 feet.(D) The cover crop of each wastewater application area shall be harvested a minimum of once per year. Consideration should be given to the selection of crops which will allow two or more harvests per year to be made.(E) All effluent applied as irrigation water should have a pH within the range of 6.0 to 9.0.(c) Percolation. Percolation application systems provide for ultimate application of the wastewater by evaporation and percolation with no resulting discharge to surface water in the state.(1) Percolation systems will not be permitted in those locations where seepage would adversely affect the uses of groundwater resources.(2) Primary treatment of the raw sewage shall be provided prior to land application.(3) Percolation systems shall be limited to sites having soil textures suitable for sustaining a rapid intake rate. Percolation dosing sites shall be limited to soils classified as sands, loamy sands, or sandy loams having a minimum infiltration rate of six inches per hour.(4) Multiple dosing basins shall be provided for the application of wastewater. The wastewater distribution system shall be designed to provide a maximum dosing period of 24 hours upon any individual dosing basin and a minimum resting period for any individual dosing basin of five days following a period of dosing.(5) The hydraulic loading rate will be considered on a case-by-case basis. The designing engineer shall identify the permeability of the limiting soil layer.(6) The design shall provide an area equal to a minimum of 20% of the total application site area for the construction of wastewater storage for use during periods of wet or freezing weather and to provide flexibility of dosing site use.</content><note type="source"><p>Source Note: The provisions of this §309.20 adopted to be effective March 19, 1990, 15 TexReg 1160; amended to be effective January 9, 2020, 45 TexReg 370.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c309/scD"><num value="D">SUBCHAPTER D</num><heading>BENEFICIAL REUSE CREDIT</heading><section identifier="/us/state/tx/tac/t30/p1/c309/scD/s309.21"><num value="309.21">§309.21</num><heading>Purpose, Scope, and Applicability</heading><content>(a) This subchapter provides for a beneficial reuse credit that may be used to account for beneficial reuse of treated wastewater for land application calculations. This subchapter establishes requirements for obtaining a beneficial reuse credit and requirements that apply to an entity who holds a permit that includes a beneficial reuse credit.(b) This subchapter applies to an entity who applies for a Texas Land Application Permit (TLAP) under Chapter 305 of this title (relating to Consolidated Permits) to dispose of domestic wastewater if the application proposes a beneficial reuse credit. This subchapter also applies to an entity who holds a TLAP that includes a beneficial reuse credit.(c) This subchapter does not apply to:(1) domestic wastewater treatment facilities permitted to discharge to water in the state under a Texas Pollutant Discharge Elimination System permit issued under Chapter 305 of this title; and(2) industrial facilities.(d) This subchapter does not allow an entity to discharge wastewater or reclaimed water into water in the state. For the purpose of this subchapter, a discharge from a user's pond or storage unit that is a direct result of a rainfall event is considered an unauthorized discharge. A permit issued that includes a beneficial reuse credit in accordance with this subchapter does not protect an entity from liability for unauthorized discharges.</content><note type="source"><p>Source Note: The provisions of this §309.21 adopted to be effective January 9, 2020, 45 TexReg 370.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c309/scD/s309.22"><num value="309.22">§309.22</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Beneficial reuse credit--The amount by which the permitted flow can be reduced to calculate the required land application area for a Texas Land Application Permit.(2) Firm reclaimed water demand--The amount of water that has been historically used by the permittee or water user for beneficial reuse.(3) Reclaimed water--As defined in Chapter 210 of this title (relating to Use of Reclaimed Water).(4) Total monthly volume--The sum of all water use data across users of the same type of water use (i.e. indoor use or outdoor use) for the same month.(5) Total nitrogen--Nitrate-nitrogen plus ammonia-nitrogen plus organically bound nitrogen.(6) User--As defined in Chapter 210 of this title (relating to Use of Reclaimed Water).(7) Water use data--Recorded monthly amounts of water for uses allowed in a reclaimed water use authorization issued under Chapter 210 of this title (relating to Use of Reclaimed Water). Water use data may include the amount of potable water used if the user has a contractual agreement with the permittee to substitute reclaimed water for potable water for the same type of use indicated.</content><note type="source"><p>Source Note: The provisions of this §309.22 adopted to be effective January 9, 2020, 45 TexReg 370.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c309/scD/s309.23"><num value="309.23">§309.23</num><heading>Demonstrating Firm Reclaimed Water Demand</heading><content>(a) The applicant shall submit five years or more of consecutive water use data for each user, if available. If five years of data is not available, the applicant shall submit a minimum of two consecutive years of water use data for each user to demonstrate firm reclaimed water demand. Water use data must be from the period immediately preceding the date the application is received.(b) The applicant shall submit the total monthly volume of water used by users satisfying subsection (a) of this section for indoor use and outdoor use, respectively.(c) Water use data can be for reuse conducted by either the applicant or reclaimed water users that have a contract with the applicant to reuse the applicant's reclaimed water. The contract must be for a minimum term of five years.(d) Water use data must be for the same type of reclaimed water use proposed (for example, a user's landscape irrigation data may not be used to support the user's dust control or toilet flushing use).(e) For each user, water use data must include:(1) the amount of water used on a monthly basis;(2) the type of use of the water at each site; and(3) the number of acres irrigated at each site, if applicable.(f) At the discretion of the executive director, a water user's data may not be counted toward the beneficial reuse credit if the executive director determines that the user's water data is unreliable due to the user's noncompliance with state laws, rules, or permit conditions within the five-year period immediately preceding the date the application is received.(g) At the discretion of the executive director, an applicant may not be eligible for beneficial reuse credit if the applicant has been issued a violation that resulted in an enforcement case within the five-year period immediately preceding the date the application is received.(h) At the discretion of the executive director, less than two years of water use data may be used to calculate the beneficial reuse credit.</content><note type="source"><p>Source Note: The provisions of this §309.23 adopted to be effective January 9, 2020, 45 TexReg 370.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c309/scD/s309.24"><num value="309.24">§309.24</num><heading>Calculating and Using Beneficial Reuse Credit</heading><content>(a) For outdoor uses.(1) For users with less than five years of water use data, the beneficial reuse credit is calculated as 80% of the lowest total monthly volume of water used.(2) For users with five or more years of water use data, the beneficial reuse credit is calculated as 80% of the average of the three lowest total monthly volumes of water use data submitted for the five years prior to the date the application is submitted. All users must have at least five consecutive years of data when taking the average of the lowest three months.(b) For indoor uses.(1) For users with less than five years of water use data, the beneficial reuse credit is calculated as 100% of the lowest total monthly volume of water used.(2) For users with five or more years of water use data, the beneficial reuse credit is calculated as 100% of the average of the lowest three total monthly volumes of water use data submitted for the five years prior to the date the application is submitted. All users must have at least five consecutive years of data when taking the average of the lowest three months.(c) When calculating the hydraulic application rate as described in §309.20(b)(3)(A) of this title (relating to Land Application of Sewage Effluent) or §222.83 of this title (relating to Hydraulic Application Rate) for subsurface area drip dispersal systems, the permitted flow may be reduced by the beneficial reuse credit.(d) The size of the land application site area may not be reduced by more than 50% of the size required when calculating the hydraulic application rate using the permitted flow without the beneficial reuse credit.(e) When calculating the required effluent storage as described in §309.20(b)(3)(B) of this title or §222.127 of this title (relating to Storage), the permitted flow may not be reduced by the beneficial reuse credit.(f) For the purpose of recalculating the beneficial reuse credit and for renewing a permit, the executive director may accept water use data from users with less than two years of data on a case-by-case basis.</content><note type="source"><p>Source Note: The provisions of this §309.24 adopted to be effective January 9, 2020, 45 TexReg 370.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c309/scD/s309.25"><num value="309.25">§309.25</num><heading>Requirements</heading><content>(a) Application Requirements.(1) The applicant must provide the executive director with a list of users and the type of use(s) for each user. For users that propose to use the reclaimed water for irrigation, the list must include the acreage and crop(s) irrigated for each irrigation area.(2) The applicant must provide the executive director with a map showing the location of the water use sites at a scale specified by the executive director.(3) The applicant must submit all water use data used to calculate firm reclaimed water demand.(4) The executive director may request additional information as may be necessary for an adequate technical review of the application.(5) For permits issued prior to the effective date of this subchapter, the permittee must apply for a permit amendment under Chapter 305 of this title (relating to Consolidated Permits) for approval of a new or approval of a change to an existing beneficial reuse credit.(b) General Requirements.(1) An applicant must receive authorization required by Chapter 210 of this title (relating to Use of Reclaimed Water) before applying for a beneficial reuse credit. The executive director may waive this requirement for a new facility if the executive director finds that the application contains all information required by §309.23 of this title (relating to Demonstrating Firm Reclaimed Water Demand). If a beneficial reuse credit is granted for a new facility, the permit must include:(A) the requirements and conditions that apply to the regulated activity without considering the beneficial reuse credit, applicable from the date of permit issuance until the permittee receives authorization for reclaimed water use under Chapter 210 of this title; and(B) the requirements and conditions that apply after the permittee receives authorization for reclaimed water use under Chapter 210 of this title.(2) A permittee and, to extent applicable, a user must maintain authorization under Chapter 210 of this title during the term of the Texas Land Application Permit.(3) The term of a permit that includes a beneficial reuse credit may not exceed five years.(4) A permit that includes a beneficial reuse credit must include limits for both the permitted flow and the land application flow. The land application flow limit must be equal to the permitted flow limit minus the beneficial reuse credit.(5) A permittee that is granted a beneficial reuse credit shall have a contractual agreement to dispose of unused treated effluent on an emergency basis, using the pump-and-haul method or another method approved by the executive director. The permittee shall use the contracted disposal method if all of the following conditions are met:(A) a user of reclaimed water no longer needs the reclaimed water;(B) a new user has not been contracted to accept the reclaimed water;(C) the permitted facility does not have adequate capacity to store the unused reclaimed water; and(D) additional application to the permitted land application area would exceed the permitted application rate or is otherwise prohibited by the permit.(6) A permittee that is granted a beneficial reuse credit must meet a minimum of Type II effluent quality as described in §210.33 of this title (relating to Quality Standards for Using Reclaimed Water).(c) Reporting Requirements.(1) If the users or the irrigation areas change, the permittee must provide the executive director with an updated list of users and irrigations areas within 30 days after the change. A change in user or area is not an amendment to the permit.(2) A permittee that is granted a beneficial reuse credit shall submit the following to the executive director by September 30th of each year for the reporting period of September 1st to August 31st:(A) monthly data on the amount of reclaimed water used by each user;(B) the type of water use(s) for each user;(C) the acreage of each irrigation site, if applicable;(D) the crop(s) irrigated at each irrigation site, if applicable;(E) a recalculation of the beneficial reuse credit; and(F) the total nitrogen concentration of the effluent.(3) If the recalculated beneficial reuse credit submitted in the annual report is reduced, the executive director may require a permit amendment.(4) The total nitrogen concentration of the effluent shall be tested quarterly by grab sample for the first year of the permit term, after which the frequency for testing may be reduced to annually upon approval by the executive director.(5) The permittee shall submit monthly effluent reports to the executive director in accordance with the effluent limitations and monitoring requirements of the permit.(6) The executive director may require additional limitations or more frequent testing on a case-by-case basis.</content><note type="source"><p>Source Note: The provisions of this §309.25 adopted to be effective January 9, 2020, 45 TexReg 370.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c311"><num value="311">CHAPTER 311</num><heading>WATERSHED PROTECTION RULES</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c311/scA"><num value="A">SUBCHAPTER A</num><heading>LAKES TRAVIS AND AUSTIN WATER QUALITY</heading><section identifier="/us/state/tx/tac/t30/p1/c311/scA/s311.1"><num value="311.1">§311.1</num><heading>Definitions</heading><content>The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise.(1) Lake Austin water quality area--Those portions of the Lake Austin watershed within 10 stream miles of the pool level of Lake Austin (492.8 feet, mean sea level).(2) Lake Austin watershed--Lake Austin and its tributaries located between Tom Miller Dam and Mansfield Dam.(3) Lake Travis water quality area--Those portions of the Lake Travis watershed within 10 stream miles of the pool elevation of Lake Travis (681 feet, mean sea level).(4) Lake Travis watershed--Lake Travis and its tributaries located between Mansfield Dam and Max Starcke Dam, but only that part of the Pedernales River and its tributaries within 15 stream miles of the pool elevation of Lake Travis.</content><note type="source"><p>Source Note: The provisions of this §311.1 adopted to be effective October 20, 1986, 11 TexReg 4164.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scA/s311.2"><num value="311.2">§311.2</num><heading>No Discharge of Pollutants</heading><content>There shall be no discharge of pollutants into the Lake Austin water quality area or the Lake Travis water quality area, except as provided in these sections.</content><note type="source"><p>Source Note: The provisions of this §311.2 adopted to be effective October 20, 1986, 11 TexReg 4164.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scA/s311.3"><num value="311.3">§311.3</num><heading>Wastewater Disposal</heading><content>Any proposed sewage treatment facility in the Lake Austin or Lake Travis water quality area will be required to provide secondary treatment in accordance with one of the following options:(1) the treatment facility will provide treatment as specified in Effluent Sets 2 and A in §309.4 of this title (relating to Table 1, Effluent Standards for Domestic Wastewater Treatment Plants) prior to discharge into on-channel ponds. Such ponds will be designed, constructed, and operated to meet standards established on a case-by-case basis that will assure that any overflows of treated effluent occur only when the volume of effluent to stormwater in the pond is less than or equal to 1:10. For the purposes of this paragraph and calculation, effluent does not include any amounts of stormwater runoff, but only the amount of wastewater discharge from the plant. Standards will include, but are not limited to, a minimum pond size requirement based on hydrological studies of the drainage area of the pond and allowable irrigation rates as determined in accordance with §317.10(c) of this title (relating to Appendix B--Land Disposal of Sewage Effluent); or(2) the treatment facility will provide secondary treatment as specified in §§309.1-309.4 of this title (relating to Introduction and Purpose; Rationale for Effluent Sets; Application of Effluent Sets; and Table 1, Effluent Standards for Domestic Wastewater Treatment Plants) prior to discharge into storage ponds for land disposal. Storage ponds and land disposal practices will be designed, constructed, and operated in accordance with §317.10(c) of this title (relating to Appendix B--Land Disposal of Sewage Effluent).</content><note type="source"><p>Source Note: The provisions of this §311.3 adopted to be effective October 20, 1986, 11 TexReg 4164.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scA/s311.4"><num value="311.4">§311.4</num><heading>Existing Facilities in Water Quality Areas</heading><content>(a) Any currently permitted treatment facility in the Lake Austin or Lake Travis water quality areas may continue operation in accordance with the terms and conditions of the existing permit for the facility and can apply for renewal of the permit unless the facility becomes substantially noncompliant or an expansion of the treatment facility is included in the application for renewal.(b) Any modification of a facility described in subsection (a) of this section that requires a permit amendment and which results in additional treatment capacity will also require treatment as described in §311.3 of this title (relating to Wastewater Disposal) for the total wastewater flow from the permitted facility.(c) Any permitted facility not meeting its permit limitations because of overloading of sewage will be subject to amendment as described in §305.62 of this title (relating to Amendment) in order to impose permit limitations consistent with §311.3 of this title (relating to Wastewater Disposal).</content><note type="source"><p>Source Note: The provisions of this §311.4 adopted to be effective October 20, 1986, 11 TexReg 4164.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scA/s311.5"><num value="311.5">§311.5</num><heading>Lake Austin and Lake Travis Watershed Management</heading><content>Any proposed new or expanded treatment facility in the Lake Austin or Lake Travis watersheds, but outside the Lake Austin and Lake Travis water quality areas may be permitted only if it provides for disposal without discharge in accordance with §311.3 of this title (relating to Wastewater Disposal) or if the applicant establishes that any alternative proposed wastewater treatment and disposal will consistently protect and maintain the existing water quality of Lake Austin and Lake Travis.</content><note type="source"><p>Source Note: The provisions of this §311.5 adopted to be effective October 20, 1986, 11 TexReg 4164.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scA/s311.6"><num value="311.6">§311.6</num><heading>Allowable Storm Water Runoff and Certain Non-Storm Water Discharges</heading><content>(a) The following discharges of storm water runoff may be authorized by a Texas pollutant discharge elimination system (TPDES) permit or a national pollutant discharge elimination system (NPDES) permit:(1) storm water runoff from industrial facilities;(2) storm water runoff from municipal separate storm sewer systems; and(3) storm water runoff from construction activities.(b) The following non-storm water discharges may be authorized by a TPDES permit or a NPDES permit:(1) discharges from fire fighting activities;(2) discharges from fire hydrant flushings;(3) discharges from potable water sources, including drinking fountain water and water line flushings;(4) discharges from uncontaminated air conditioning or compressor condensate;(5) discharges from lawn watering and similar irrigation drainage;(6) discharges from pavement wash down without the use of detergents or other chemicals and where spills or leaks of toxic or hazardous materials have not occurred (unless all spilled material has been removed);(7) discharges from a routine external building wash down that do not use detergents or other compounds;(8) discharges from uncontaminated groundwater or spring water;(9) discharges from foundation or footing drains where flows are not contaminated with process materials such as solvents;(10) discharges from the spray down of lumber and wood product storage yards where no chemical additives are used in the spray down waters and no chemicals are applied to the wood during storage; and(11) discharges of storm water or groundwater seepage from mine dewatering activities at construction sand and gravel, industrial sand, or crushed stone mining facilities.(c) Nothing in this subchapter is intended to restrict the powers of the commission or any other governmental entity to prevent, correct, or curtail activities that result or may result in pollution in the water quality area. In addition to the rules of the commission, a TPDES permit applicant may also be required to comply with local pollution control ordinances and regulations.</content><note type="source"><p>Source Note: The provisions of this §311.6 adopted to be effective December 7, 2000, 25 TexReg 11957.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c311/scB"><num value="B">SUBCHAPTER B</num><heading>LAKES INKS AND BUCHANAN WATER QUALITY</heading><section identifier="/us/state/tx/tac/t30/p1/c311/scB/s311.11"><num value="311.11">§311.11</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Inks Lake water quality area--Those portions of the Inks Lake Watershed within 10 stream miles of the normal operating pool elevation of Inks Lake (888 feet, mean sea level).(2) Inks Lake watershed--Inks Lake and its tributaries located between Roy Inks Dam and Buchanan Dam.(3) Lake Buchanan water quality area--Those portions of the Lake Buchanan Watershed within 10 stream miles of the normal operating pool elevation of Lake Buchanan (1,020 feet, mean sea level).(4) Lake Buchanan watershed--Lake Buchanan and its tributaries located between Buchanan Dam and the confluence of the Colorado River and Deep Creek near the convergence of the Brown, McCulloch, and San Saba County lines.</content><note type="source"><p>Source Note: The provisions of this §311.11 adopted to be effective October 19, 1986, 11 TexReg 4165.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scB/s311.12"><num value="311.12">§311.12</num><heading>No Discharge of Pollutants</heading><content>There shall be no discharge of pollutants into the Inks Lake or Lake Buchanan water quality areas, except as provided in these sections.</content><note type="source"><p>Source Note: The provisions of this §311.12 adopted to be effective October 19, 1986, 11 TexReg 4165.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scB/s311.13"><num value="311.13">§311.13</num><heading>Wastewater Disposal</heading><content>Any proposed sewage treatment facility in the Inks Lake or Lake Buchanan water quality areas will be required to provide secondary treatment in accordance with one of the following options:(1) the treatment facility will provide treatment as specified in Effluent Sets 2 and A in §309.4 of this title (relating to Table 1, Effluent Standards for Domestic Wastewater Treatment Plants) prior to discharge into on-channel ponds. Such ponds will be designed, constructed, and operated to meet standards established on a case-by-case basis that will assure that any overflows of treated effluent occur only when the volume of effluent to stormwater in the pond is less than or equal to 1:10. For the purposes of this paragraph and calculation, effluent does not include any amounts of stormwater runoff, but only the amount of wastewater discharge from the plant. Standards will include, but are not limited to, a minimum pond size requirement based on hydrological studies of the drainage area of the pond and allowable irrigation rates as determined in accordance with §317.10(c) of this title (relating to Appendix B-Land Disposal of Sewage Effluent); or(2) the treatment facility will provide secondary treatment as specified in §§309.1-309.4 of this title (relating to Introduction and Purpose; Rationale for Effluent Sets; Application of Effluent Sets, and Table 1, Effluent Standards for Domestic Wastewater Treatment Plants) prior to discharge into storage ponds for land disposal. Storage ponds and land disposal practices will be designed, constructed, and operated in accordance with §317.10(c) of this title (relating to Appendix B-Land Disposal of Sewage Effluent).</content><note type="source"><p>Source Note: The provisions of this §311.13 adopted to be effective October 19, 1986, 11 TexReg 4165.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scB/s311.14"><num value="311.14">§311.14</num><heading>Existing Facilities in Water Quality Areas</heading><content>(a) Any currently permitted treatment facility in the Inks Lake or Lake Buchanan water quality areas may continue operation in accordance with the terms and conditions of the existing permit for the facility and can apply for renewal of the permit, unless the facility becomes substantially noncompliant or an expansion of the treatment facility is included in the application for renewal.(b) Any modification of a facility described in subsection (a) of this section that requires a permit amendment and which results in additional treatment capacity will also require treatment as described in §311.13 of this title (relating to Wastewater Disposal) for the total wastewater flow from the permitted facility.(c) Any permitted facility not meeting its permit limitations because of overloading of sewage will be subject to amendment as described in §305.62 of this title (relating to Amendment) in order to impose permit limitations consistent with §311.13 of this title (relating to Wastewater Disposal).</content><note type="source"><p>Source Note: The provisions of this §311.14 adopted to be effective October 19, 1986, 11 TexReg 4165.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scB/s311.15"><num value="311.15">§311.15</num><heading>Inks Lake and Lake Buchanan Watershed Management</heading><content>Any proposed new or expanded treatment facility in the Inks Lake or Lake Buchanan watersheds, but outside the Inks Lake or Lake Buchanan water quality areas may be permitted only if it provides for disposal without discharge in accordance with §311.13 of this title (relating to Wastewater Disposal) or if the applicant establishes that any alternative proposed wastewater treatment and disposal will consistently protect and maintain the existing water quality of Inks Lake and Lake Buchanan.</content><note type="source"><p>Source Note: The provisions of this §311.15 adopted to be effective October 19, 1986, 11 TexReg 4165.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scB/s311.16"><num value="311.16">§311.16</num><heading>Allowable Storm Water Runoff and Certain Non-Storm Water Discharges</heading><content>(a) The following discharges of storm water runoff may be authorized by a Texas pollutant discharge elimination system (TPDES) permit or a national pollutant discharge elimination system (NPDES) permit:(1) storm water runoff from industrial facilities;(2) storm water runoff from municipal separate storm sewer systems; and(3) storm water runoff from construction activities.(b) The following non-storm water discharges may be authorized by a TPDES permit or a NPDES permit:(1) discharges from fire fighting activities;(2) discharges from fire hydrant flushings;(3) discharges from potable water sources, including drinking fountain water and water line flushings;(4) discharges from uncontaminated air conditioning or compressor condensate;(5) discharges from lawn watering and similar irrigation drainage;(6) discharges from pavement wash down without the use of detergents or other chemicals and where spills or leaks of toxic or hazardous materials have not occurred (unless all spilled material has been removed);(7) discharges from a routine external building wash down that do not use detergents or other compounds;(8) discharges from uncontaminated groundwater or spring water;(9) discharges from foundation or footing drains where flows are not contaminated with process materials such as solvents;(10) discharges from the spray down of lumber and wood product storage yards where no chemical additives are used in the spray down waters and no chemicals are applied to the wood during storage; and(11) discharges of storm water or groundwater seepage from mine dewatering activities at construction sand and gravel, industrial sand, or crushed stone mining facilities.(c) Nothing in this subchapter is intended to restrict the powers of the commission or any other governmental entity to prevent, correct, or curtail activities that result or may result in pollution in the water quality area. In addition to the rules of the commission, a TPDES permit applicant may also be required to comply with local pollution control ordinances.</content><note type="source"><p>Source Note: The provisions of this §311.16 adopted to be effective December 7, 2000, 25 TexReg 11957.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c311/scC"><num value="C">SUBCHAPTER C</num><heading>WATER QUALITY MANAGEMENT IN THE CLEAR LAKE WATERSHED</heading><section identifier="/us/state/tx/tac/t30/p1/c311/scC/s311.21"><num value="311.21">§311.21</num><heading>Clear Lake Watershed Effluent Quality Criteria</heading><content>(a) All municipal waste discharges within the Clear Lake watershed (excluding those discharges which have pursued an acceptable alternative, such as diversion of effluent out of the watershed) shall improve and upgrade their waste treatment facilities and operations as needed to achieve, at a minimum, the following effluent quality criteria.Attached Graphic(b) Effluent disinfection shall conform to Effluent Set A of "A Policy for Effluent Standards for Domestic Wastewater Treatment Plants," contained in §309.4 of this title (relating to Table 1, Effluent Standards for Domestic Wastewater Treatment Plants). The commission, upon a satisfactory showing by the applicant that no significant adverse water quality condition will occur may provide in the permit that the ammonia as nitrogen limitation may be calculated on an annual basis or grant variances for seasonal variations during winter months so long as such seasonal variation does not exceed 5 mg/liter monthly average or 2 mg/liter on an annual average.(c) All industrial waste discharges within the Clear Lake watershed (excluding those discharges which have pursued an acceptable alternative, such as diversion of effluent out of the watershed) shall improve and upgrade their waste treatment facilities and operations as needed to achieve, at a minimum, effluent limitations commensurate with the treatment efficiencies required of municipal waste discharges to the Clear Lake watershed. In addition, each industrial discharge should be prepared to meet more stringent effluent limitations on a case-by-case basis if warranted by water quality considerations.</content><note type="source"><p>Source Note: The provisions of this §311.21 adopted to be effective October 20, 1986, 11 TexReg 4166.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scC/s311.22"><num value="311.22">§311.22</num><heading>Implementation of Effluent Quality Criteria</heading><content>The commission, upon the request of the executive director, shall revise those permits in the Clear Lake watershed to reflect the terms and conditions of this subchapter and include an implementation schedule to restore, preserve, and maintain the quality of water in Clear Lake as expeditiously as possible.</content><note type="source"><p>Source Note: The provisions of this §311.22 adopted to be effective October 20, 1986, 11 TexReg 4166.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c311/scD"><num value="D">SUBCHAPTER D</num><heading>WATER QUALITY MANAGEMENT WITHIN LAKE HOUSTON WATERSHED</heading><section identifier="/us/state/tx/tac/t30/p1/c311/scD/s311.31"><num value="311.31">§311.31</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Lake Houston watershed--The entire drainage area of Lake Houston, with the exception of that portion of the drainage basin of the West Fork of the San Jacinto River which lies upstream of the Lake Conroe Dam.</content><note type="source"><p>Source Note: The provisions of this §311.31 adopted to be effective October 20, 1986, 11 TexReg 4166.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scD/s311.32"><num value="311.32">§311.32</num><heading>Effluent Requirements (Domestic)</heading><content>All domestic sewage treatment permit applicants, all permittees who construct authorized treatment facility expansions, and all permittees who apply for increases in their permitted effluent flows, who propose to dispose of treated sewage effluent by discharge into the waters of the state in the Lake Houston watershed shall, at a minimum, achieve the effluent treatment level specified in Effluent Set 2-N and A in §309.4 of this title (relating to Table I-Effluent Standards for Domestic Wastewater Treatment Plants), except as otherwise provided in this section. All permittees within the Lake Houston watershed that are not covered by the preceding sentence shall achieve the treatment levels specified in Effluent Sets 2-N and A in §309.4 of this title (relating to Table I-Effluent Standards for Domestic Wastewater Treatment Plants) on or before July 1, 1988. Time extensions may be specified by the Texas Water Commission in wastewater discharge permits on a case-by-case basis where circumstances so dictate, but in no case will extend beyond January 1, 1990. The Texas Water Commission may require more stringent effluent limitations where advisable to protect water quality. The Texas Water Commission may authorize variances to allow less stringent effluent limitations as are necessary based on considerations consistent with the provisions of the Texas Water Code.</content><note type="source"><p>Source Note: The provisions of this §311.32 adopted to be effective October 20, 1986, 11 TexReg 4166.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scD/s311.33"><num value="311.33">§311.33</num><heading>Effluent Requirements (Industrial)</heading><content>All industrial wastewater treatment permit applicants, all permittees who construct authorized treatment facility expansions, and all permittees who apply for increases in pollutant loadings, who propose to dispose of treated industrial wastewater effluent by discharge into the waters of the state in the Lake Houston watershed shall achieve effluent treatment levels commensurate with the goals of this section. All permittees within the Lake Houston watershed that are not covered by the preceding sentence shall achieve the effluent requirements of this section on or before July 1, 1988. Time extensions may be specified by the Texas Water Commission in wastewater discharge permits on a case-by-case basis where circumstances so dictate, but in no case will extend beyond January 1, 1990. The Texas Water Commission may require more stringent effluent limitations where advisable to protect water quality. The Texas Water Commission may authorize a variance to allow less stringent effluent limitations based on considerations consistent with the provisions of the Texas Water Code.</content><note type="source"><p>Source Note: The provisions of this §311.33 adopted to be effective October 20, 1986, 11 TexReg 4166.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scD/s311.34"><num value="311.34">§311.34</num><heading>Land Disposal</heading><content>All sewage treatment facilities which dispose of wastewater effluent by land disposal methods in the Lake Houston watershed shall provide secondary treatment as specified in §§309.1-309.4 of this title (relating to Introduction and Purpose; Rationale for Effluent Sets; Application of Effluent Sets; and Table 1, Effluent Standards for Domestic Wastewater Treatment Plants) prior to discharge into storage ponds for land disposal. Storage ponds and land disposal facilities shall be designed, constructed, and operated in accordance with §317.10(c) of this title (relating to Appendix B--Land Disposal of Sewage Effluent).</content><note type="source"><p>Source Note: The provisions of this §311.34 adopted to be effective October 20, 1986, 11 TexReg 4166.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scD/s311.35"><num value="311.35">§311.35</num><heading>Domestic Solids Treatment</heading><content>The permittee of a domestic sewage treatment facility discharging into the Lake Houston watershed which requests renewal or amendment of an existing permit, or any person who submits an application for a new wastewater discharge permit within the Lake Houston watershed shall be required to submit with the application for renewal, amendment, or new permit, a solids management plan. The report describing such plan shall contain, at a minimum, the following information:(1) the type of wastewater treatment process used;(2) the dimensions and capacities of all solids handling and treatment units and processes;(3) calculations showing the amount of solids generated at design flow and at 75%, 50%, and 25% of design flow;(4) operating range for mixed liquor suspended solids in the treatment process based on the projected actual and design flow expected at the facility;(5) a description of the procedure and method of solids removal from the treatment process;(6) quantity of solids to be removed from the process and schedule for removal of solids that is designed to maintain an appropriate solids inventory; and(7) identification of the ultimate disposal site and a system of documenting the amount of solids removed in dry weight form.</content><note type="source"><p>Source Note: The provisions of this §311.35 adopted to be effective October 20, 1986, 11 TexReg 4166.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scD/s311.36"><num value="311.36">§311.36</num><heading>Disinfection</heading><content>(a) By May 1, 1986, the permittees of all domestic sewage and industrial wastewater treatment facilities discharging into the Lake Houston watershed which utilize gaseous chlorination disinfection systems shall install dual-feed chlorination systems which are capable of automatically changing from one cylinder to another.(b) Chlorination disinfection systems shall be operated so that a minimum chlorine residual of 1.0 milligram per liter (mg/l) and a maximum chlorine residual of 4.0 mg/l measured on an instantaneous grab sample is not exceeded for discharges into the Lake Houston watershed.</content><note type="source"><p>Source Note: The provisions of this §311.36 adopted to be effective October 20, 1986, 11 TexReg 4166.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c311/scE"><num value="E">SUBCHAPTER E</num><heading>COLORADO RIVER WATERSHED</heading><section identifier="/us/state/tx/tac/t30/p1/c311/scE/s311.41"><num value="311.41">§311.41</num><heading>Scope</heading><content>These sections apply to the Colorado River Watershed in Segment 1428, of the Texas surface water quality standards, including the Colorado River from Longhorn Dam to 100 meters downstream of State Highway 95/State Highway Loop 230 bridge in Smithville, Texas, and all tributaries of that segment of the Colorado River, and to Segment 1427, Onion Creek, and its tributaries, of the Texas surface water quality standards, from its confluence with the Colorado River to the most upstream crossing of Farm to Market Road 165.</content><note type="source"><p>Source Note: The provisions of this §311.41 adopted to be effective October 19, 1986, 11 TexReg 4167.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scE/s311.42"><num value="311.42">§311.42</num><heading>Effluent Requirements for the Main Stem of Segment 1428 of the Colorado River</heading><content>(a) All domestic sewage treatment permit applicants, all permittees who construct treatment facility expansions, and all permittees who apply for increases in their permitted effluent flows who propose to dispose of treated sewage effluent by discharge directly into Segment 1428 of the Colorado River shall, at a minimum, achieve the following level of effluent treatment:(1) 10 milligrams per liter of biochemical oxygen demand, based on a 30-day average;(2) 15 milligrams per liter of total suspended solids, based on a 30-day average;(3) 2 milligrams per liter of ammonia nitrogen, based on a 30-day average; and(4) 5 milligrams per liter, at least, of dissolved oxygen content, based on a 30-day average.(b) Existing plants which discharge treated domestic sewage effluent directly into Segment 1428 of the Colorado River must meet the level of treatment set forth in subsection (a) of this section, by June 1, 1990. The commission may modify the date for compliance with the treatment levels based on consideration of economic and technical feasibility, actual or potential environmental impacts, or other appropriate factors.(c) The treatment level in subsection (a) of this section may be modified if the results of water quality studies show that this is necessary.</content><note type="source"><p>Source Note: The provisions of this §311.42 adopted to be effective October 19, 1986, 11 TexReg 4167.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scE/s311.43"><num value="311.43">§311.43</num><heading>Effluent Requirements for All Tributaries of Segment 1428 of the Colorado River and Segment 1427, Onion Creek, and Its Tributaries, of the Colorado River Basin</heading><content>(a) Except as provided in subsections (b) and (c) of this section, all discharges of treated sewage effluent into the waters of the state in the tributaries of Segment 1428 of the Colorado River or directly into Segment 1427, Onion Creek, of the Colorado River Basin and its tributaries shall, at a minimum, achieve the following level of effluent treatment:(1) five milligrams per liter of biochemical oxygen demand, based on a 30-day average;(2) five milligrams per liter of total suspended solids, based on a 30-day average;(3) two milligrams per liter of ammonia nitrogen, based on a 30-day average; and(4) one milligram per liter of phosphorus, based on a 30-day average.(b) Subsection (a) of this section does not apply to any existing facilities which discharge treated domestic sewage effluent into tributaries of Segment 1428 of the Colorado River or Segment 1427, Onion Creek, and its tributaries, of the Colorado River Basin, so long as that facility remains at its permitted flow for the facility currently constructed. However, subsection (a) of this section shall apply to all permitted facilities and phased facility expansions not under substantial construction as of September 25, 1986, no later than June 1, 1990. This subsection shall not preclude the commission from imposing more stringent treatment levels to such facilities in the future if the results of water quality studies show that such is necessary.(c) The City of Austin's Walnut Creek wastewater treatment facility, located at the south side of FM Road 969, approximately one mile east of the intersection of FM Road 969 and United States Highway 183 in Travis County, must by October 1, 1997, meet, at a minimum, the effluent treatment level in subsection (a) of this section unless the discharge is relocated to the main stem of the Colorado River.(d) The treatment level in subsection (a) of this section may be modified if the results of water quality studies show that this is necessary.</content><note type="source"><p>Source Note: The provisions of this §311.43 adopted to be effective October 19, 1986, 11 TexReg 4167; amended to be effective April 29, 1994, 19 TexReg 2958.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scE/s311.44"><num value="311.44">§311.44</num><heading>Disinfection</heading><content>(a) All sewage treatment facilities discharging into Segment 1428 of the Colorado River Basin and its tributaries, or Segment 1427, Onion Creek, and its tributaries, shall install dual-feed chlorination systems which are capable of automatically changing from one cylinder to another at the time they are constructed or by June 1, 1990.(b) Chlorination disinfection systems shall be operated so that a minimum chlorine residual of 1.0 milligrams per liter and a maximum chlorine residual of 4.0 milligrams per liter, measured on an instantaneous grab sample, are met for all discharges into Segment 1428, the Colorado River Basin, and its tributaries, or Segment 1427, Onion Creek, and its tributaries.(c) The commission may consider alternative disinfection methods on a case-by-case basis.</content><note type="source"><p>Source Note: The provisions of this §311.44 adopted to be effective October 19, 1986, 11 TexReg 4167.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c311/scF"><num value="F">SUBCHAPTER F</num><heading>LAKES LYNDON B. JOHNSON AND MARBLE FALLS WATER QUALITY</heading><section identifier="/us/state/tx/tac/t30/p1/c311/scF/s311.51"><num value="311.51">§311.51</num><heading>Definitions</heading><content>The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise.(1) Lake Lyndon B. Johnson Water-Quality Area--Those portions of the Lake Lyndon B. Johnson Watershed within ten stream miles of the pool level of Lake Lyndon B. Johnson (825 feet, mean sea level).(2) Lake Lyndon B. Johnson Watershed--Lake Lyndon B. Johnson and its tributaries located between Alvin Wirtz Dam and Roy Inks Dam.(3) Lake Marble Falls Water Quality Area--Those portions of the Lake Marble Falls Watershed within 10 stream miles of the pool elevation of Lake Marble Falls (738 feet, mean sea level).(4) Lake Marble Falls Watershed--Lake Marble Falls and its tributaries located between Max Starcke Dam and Alvin Wirtz Dam.</content><note type="source"><p>Source Note: The provisions of this §311.51 adopted to be effective June 4, 1987, 12 TexReg 1662.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scF/s311.52"><num value="311.52">§311.52</num><heading>No Discharge of Pollutants</heading><content>There shall be no discharge of pollutants into or adjacent to waters of the state within the Lake Lyndon B. Johnson Water Quality Area or the Lake Marble Falls Water Quality Area, except as provided in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §311.52 adopted to be effective June 4, 1987, 12 TexReg 1662.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scF/s311.53"><num value="311.53">§311.53</num><heading>Wastewater Disposal</heading><content>Any proposed sewage treatment facility in the Lake Lyndon B. Johnson or Lake Marble Falls Water Quality Area will be required to provide secondary treatment facility in accordance with one of the following options:(1) the treatment facility will provide treatment as specified in Effluent Sets 2 and A in §309.4 of this title (relating to Table 1, Effluent Standards for Domestic Wastewater Treatment Plants) prior to discharge into on-channel ponds. Such ponds will be designed, constructed, and operated to meet standards established on a case-by-case basis that will assure that any overflows of treated effluent occur only when the volume of effluent to stormwater in the pond is less than or equal to 1:10. For the purposes of this paragraph and calculation, effluent does not include any amount of stormwater runoff, but only the amount of wastewater discharge from the plant. Standards will include, but are not limited to, a minimum pond size requirement based on hydrological studies of the drainage area of the pond and allowable irrigation rates as determined in accordance with §317.10 (c) of this title (relating to Appendix B-Land Disposal of Sewage Effluent); or(2) the treatment facility will provide secondary treatment as specified in §§309.1-309.4 of this title (relating to Introduction and Purpose, Rationale for Effluent Sets; Application of Effluent Sets and Table 1, Effluent Standards for Domestic Wastewater Treatment Plants) prior to discharge into storage ponds for land disposal. Storage ponds and land disposal practices will be designed, constructed and operated in accordance with §317.10 (c) of this title (relating to Appendix B--Land Disposal of Sewage Effluent).</content><note type="source"><p>Source Note: The provisions of this §311.53 adopted to be effective June 4, 1987, 12 TexReg 1662.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scF/s311.54"><num value="311.54">§311.54</num><heading>Existing Facilities in Water Quality Areas</heading><content>(a) Any currently permitted treatment facility in the Lake Lyndon B. Johnson or Lake Marble Falls Water Quality Areas may continue operation in accordance with the terms and conditions of the existing permit for the facility and can apply for renewal of the permit unless the facility becomes substantially noncompliant or an expansion of the treatment facility is included in the application for renewal.(b) Any modification of a facility described in subsection (a) of this section that requires a permit amendment and which results in additional treatment capacity will also require treatment as described in §311.53 of this title (relating to Wastewater Disposal) for the total wastewater flow from the permitted facility.(c) Any permitted facility not meeting its permit limitations because of overloading of sewage will be subject to amendment as described in §305.62 of this title (relating to Amendment) in order to impose permit limitations consistent with §311.53 of this title (relating to Wastewater Disposal).(d) The commission may consider any application for a new facility or for expansion of an existing facility that has been received by the commission and declared administratively complete as of November 1, 1986, after notice and an opportunity for hearing has been extended to all affected parties as required under §§305.91-305.105 of this title (relating to Actions, Notice, and Hearing). However, the commission's decision on any application considered under this subsection shall not be constrained, in any manner, by the provisions of this subsection.</content><note type="source"><p>Source Note: The provision of this §311.54 adopted to be effective June 4, 1987, 12 TexReg 1662.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scF/s311.55"><num value="311.55">§311.55</num><heading>Lake Lyndon B. Johnson and Lake Marble Falls Watershed Management</heading><content>Any proposed new or expanded treatment facility in the Lake Lyndon B. Johnson or Lake Marble Falls Watersheds but outside the Lake Lyndon B. Johnson and Lake Marble Falls Water Quality Areas may be permitted only if it provides disposal without discharge in accordance with §311.53 of this title (relating to Wastewater Disposal) or if the applicant establishes that any alternative proposed wastewater treatment and disposal will consistently protect and maintain the existing water quality of Lake Lyndon B. Johnson and Lake Marble Falls.</content><note type="source"><p>Source Note: The provisions of this §311.55 adopted to be effective June 4, 1987, 12 TexReg 1662.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scF/s311.56"><num value="311.56">§311.56</num><heading>Allowable Storm Water Runoff and Certain Non-Storm Water Discharges</heading><content>(a) The following discharges of storm water runoff into or adjacent to water in the state may be authorized by a Texas pollutant discharge elimination system (TPDES) permit or a national pollutant discharge elimination system (NPDES) permit:(1) storm water runoff from industrial facilities;(2) storm water runoff from municipal separate storm sewer systems; and(3) storm water runoff from construction activities.(b) The following non-storm water discharges into or adjacent to water in the state may be authorized by a TPDES permit or a NPDES permit:(1) discharges from fire fighting activities;(2) discharges from fire hydrant flushings;(3) discharges from potable water sources, including drinking fountain water and water line flushings;(4) discharges from uncontaminated air conditioning or compressor condensate;(5) discharges from lawn watering and similar irrigation drainage;(6) discharges from pavement wash down without the use of detergents or other chemicals and where spills or leaks of toxic or hazardous materials have not occurred (unless all spilled material has been removed);(7) discharges from a routine external building wash down that do not use detergents or other compounds;(8) discharges from uncontaminated groundwater or spring water;(9) discharges from foundation or footing drains where flows are not contaminated with process materials such as solvents;(10) discharges from the spray down of lumber and wood product storage yards where no chemical additives are used in the spray down waters and no chemicals are applied to the wood during storage; and(11) discharges of storm water or groundwater seepage from mine dewatering activities at construction sand and gravel, industrial sand, or crushed stone mining facilities.(c) Nothing in this subchapter is intended to restrict the powers of the commission or any other governmental entity to prevent, correct, or curtail activities that result or may result in pollution in the water quality area. In addition to the rules of the commission, a TPDES permit applicant may also be required to comply with local pollution control ordinances and regulations.</content><note type="source"><p>Source Note: The provisions of this §311.56 adopted to be effective December 7, 2000, 25 TexReg 11957.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c311/scG"><num value="G">SUBCHAPTER G</num><heading>LAKES WORTH, EAGLE MOUNTAIN, BRIDGEPORT, CEDAR CREEK, ARLINGTON, BENBROOK, AND RICHLAND-CHAMBERS</heading><section identifier="/us/state/tx/tac/t30/p1/c311/scG/s311.61"><num value="311.61">§311.61</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) BOD5 --Biochemical oxygen demand (five-day). (2) Benbrook Lake water quality area--The Benbrook Lake watershed except for those portions that are more than five stream miles upstream of the pool level of Benbrook Lake (694.0 feet, mean sea level). (3) Benbrook Lake watershed--Benbrook Lake and its tributaries except Lake Weatherford and the tributaries above Lake Weatherford. (4) Cedar Creek reservoir water quality area--Those portions of the Cedar Creek Reservoir watershed within five stream miles upstream of the pool level of Cedar Creek Reservoir (322.0 feet, mean sea level). (5) Cedar Creek Reservoir watershed--Cedar Creek Reservoir and its tributaries located between Joe B. Hoggsett Dam and a point along Cedar Creek up to the normal pool elevation. (6) DO--Dissolved oxygen. (7) Eagle Mountain Lake water quality area--Those portions of the Eagle Mountain Lake watershed within five stream miles upstream of the pool level of Eagle Mountain Lake (649.1 feet, mean sea level). (8) Eagle Mountain Lake watershed--Eagle Mountain Lake and its tributaries located between Eagle Mountain Dam and a point 0.6 kilometers downstream from the confluence of Oates Branch. (9) Lake Arlington water quality area--Those portions of the Lake Arlington watershed within five stream miles upstream of the pool level of Lake Arlington (550.0 feet, mean sea level). (10) Lake Arlington watershed--Lake Arlington and its tributaries located between Arlington Dam up to the normal pool elevation along Village Creek. (11) Lake Bridgeport water quality area--Those portions of the Lake Bridgeport watershed within five steam miles upstream of the pool level of Lake Bridgeport (836.0 feet, mean sea level). (12) Lake Bridgeport watershed--Lake Bridgeport and its tributaries located between Bridgeport Dam to a point immediately upstream from the confluence of Bear Hollow. (13) Lake Worth water quality area--Those portions of the Lake Worth watershed within five stream miles upstream of the pool level of Lake Worth (594.3 feet, mean sea level). (14) Lake Worth watershed--Lake Worth and its tributaries located between Lake Worth Dam and a point 4.0 kilometers downstream from Eagle Mountain Dam. (15) Mg/liter--Milligram per liter. (16) Oxidation pond system--Facility in which oxidation ponds are the primary process used for secondary treatment and in which the ponds have been designed and constructed in accordance with applicable design criteria. (17) Richland-Chambers reservoir water quality area--Those portions of the Richland-Chambers Reservoir watershed within five stream miles upstream of the pool level of Richland-Chambers Reservoir (315.0 feet, mean sea level). (18) Richland-Chambers watershed--Richland-Chambers Reservoir and its tributaries located between Richland Creek Dam and a point along Richland Creek up to the normal pool level. (19) TSS--Total suspended solids.</content><note type="source"><p>Source Note: The provisions of this §311.61 adopted to be effective October 20, 1989, 14 TexReg 5360; amended to be effective January 8, 2015, 40 TexReg 74.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scG/s311.62"><num value="311.62">§311.62</num><heading>Scope</heading><content>Except for §311.67 of this title (relating to Nutrient Control), this subchapter applies to discharges into the water quality areas of Lakes Worth, Eagle Mountain, Bridgeport, Cedar Creek, Arlington, Benbrook, and Richland-Chambers. Section 311.61 and §311.66 of this title (relating to Definitions; and More Stringent Requirements, respectively) also apply to the Benbrook Lake watershed. Section 311.67 of this title only applies to discharges to the Benbrook Lake watershed and Benbrook Lake water quality area.</content><note type="source"><p>Source Note: The provisions of this §311.62 adopted to be effective October 20, 1989, 14 TexReg 5360; amended to be effective January 8, 2015, 40 TexReg 74.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scG/s311.63"><num value="311.63">§311.63</num><heading>Discharges into Water Quality Areas and Lakes</heading><content>(a) Wastewater treatment systems other than oxidation ponds systems.(1) By January 1, 1993, all domestic wastewater discharges from wastewater treatment systems other than oxidation pond systems shall meet the following effluent limits:Attached Graphic(2) By January 1, 1993, all wastewater treatment systems other than oxidation pond systems shall employ filtration to supplement suspended solids removal.(3) Domestic wastewater discharged from wastewater treatment systems other than oxidation pond systems shall be disinfected prior to discharge in a manner to protect public health and aquatic life. Any appropriate process may be considered and approved on a case-by-case basis. If chlorine is utilized as the disinfectant, the effluent shall have a minimum concentration of 1 mg/liter chlorine after a 20 minute detention time. The maximum chlorine residual in any discharge shall in no event be greater than four mg/liter, or that necessary to protect aquatic life.(b) Oxidation pond systems. (1) All domestic wastewater from oxidation pond systems shall meet the following effluent limits:Attached Graphic(2) Unless otherwise specified in a permit, chemical disinfection is not required for oxidation pond systems when the total retention time in the wastewater treatment system (based upon design flow) is at least 21 days.</content><note type="source"><p>Source Note: The provisions of this §311.63 adopted to be effective October 20, 1989, 14 TexReg 5360.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scG/s311.64"><num value="311.64">§311.64</num><heading>Effluent Quality Monitoring</heading><content>At a minimum, the permittee shall collect 24-hour composite samples of the effluent at least once each month for the permitted parameters. More frequent monitoring requirements may be specified in the permit in accordance with Chapter 319 of this title (relating to General Regulations Incorporated into Permits).</content><note type="source"><p>Source Note: The provisions of this §311.64 adopted to be effective October 20, 1989, 14 TexReg 5360.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scG/s311.65"><num value="311.65">§311.65</num><heading>Effluent Flow Measurement</heading><content>The permittee shall have equipment necessary to measure or estimate the flow of the wastewater discharge.</content><note type="source"><p>Source Note: The provisions of this §311.65 adopted to be effective October 20, 1989, 14 TexReg 5360.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scG/s311.66"><num value="311.66">§311.66</num><heading>More Stringent Requirements</heading><content>The commission may impose, in permits, more stringent requirements than those specified in this subchapter, on a case-by-case basis, wherever appropriate to maintain desired water quality levels.</content><note type="source"><p>Source Note: The provisions of this §311.66 adopted to be effective October 20, 1989, 14 TexReg 5360.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scG/s311.67"><num value="311.67">§311.67</num><heading>Nutrient Control</heading><content>(a) Domestic wastewater discharges from wastewater treatment systems, other than oxidation pond systems, must meet a daily effluent limit for total phosphorus of 1.0 milligram per liter, based on a 30-day average, if the wastewater treatment system:(1) has a permitted annual or daily average flow greater than or equal to 0.10 million gallons per day and a discharge point located in the Benbrook Lake water quality area; or(2) has a permitted annual or daily average flow greater than or equal to 0.25 million gallons per day and a discharge point located in the Benbrook Lake watershed, but outside the Benbrook Lake water quality area.(b) For discharge permits with more than one flow phase, the effluent limit requirements in subsection (a) of this section apply only to those flow phases that meet the flow requirements in subsection (a) of this section.(c) For wastewater treatment systems with more than one outfall, the permitted flow limits for all outfalls will be combined to determine if the system meets one of the flow requirements in subsection (a) of this section.(d) This section only applies to wastewater treatment systems that apply for a new discharge permit or a discharge permit amendment to increase permitted flow after January 1, 2015.</content><note type="source"><p>Source Note: The provisions of this §311.67 adopted to be effective January 8, 2015, 40 TexReg 74.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c311/scH"><num value="H">SUBCHAPTER H</num><heading>REGULATION OF QUARRIES IN THE JOHN GRAVES SCENIC RIVERWAY</heading><section identifier="/us/state/tx/tac/t30/p1/c311/scH/s311.71"><num value="311.71">§311.71</num><heading>Definitions</heading><content>The following words and terms, when used in the subchapter, have the following meanings.(1) 25-year, 24-hour rainfall event--The maximum rainfall event with a probable recurrence interval of once in 25 years, with a duration of 24 hours, as defined by the National Weather Service and Technical Paper Number 40, "Rainfall Frequency Atlas of the U.S.," May 1961, and subsequent amendments; or equivalent regional or state rainfall information.(2) Aggregates--Any commonly recognized construction material originating from a quarry or pit by the disturbance of the surface, including dirt, soil, rock asphalt, granite, gravel, gypsum, marble, sand, stone, caliche, limestone, dolomite, rock, riprap, or other nonmineral substance. The term does not include clay or shale mined for use in manufacturing structural clay products.(3) Aquifer--A saturated permeable geologic unit that can transmit, store, and yield to a well, the quality and quantities of groundwater sufficient to provide for a beneficial use. An aquifer can be composed of unconsolidated sands and gravels; permeable sedimentary rocks, such as sandstones and limestones; and/or heavily fractured volcanic and crystalline rocks. Groundwater within an aquifer can be confined, unconfined, or perched.(4) Best management practices--Any prohibition, management practice, maintenance procedure, or schedule of activity designed to prevent or reduce the pollution of water in the state. Best management practices include treatment, specified operating procedures, and practices to control site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage areas.(5) Coke Stevenson Scenic Riverway -- The South Llano River in Kimble County, located upstream of the river's confluence with the North Llano River at the City of Junction.(6) John Graves Scenic Riverway--That portion of the Brazos River Basin, and its contributing watershed, located downstream of the Morris Shepard Dam on the Possum Kingdom Reservoir in Palo Pinto County, Texas, and extending to the county line between Parker and Hood Counties, Texas.(7) Natural hazard lands--Geographic areas in which natural conditions exist that pose or, as a result of quarry operations, may pose a threat to the health, safety, or welfare of people, property, or the environment, including areas subject to landslides, cave-ins, large or encroaching sand dunes, severe wind or soil erosion, frequent flooding, avalanches, and areas of unstable geology.(8) Navigable--Designated by the United States Geological Survey (USGS) as perennial on the most recent topographic map(s) published by the USGS, at a scale of 1:24,000.(9) Operator--Any person engaged in or responsible for the physical operation and control of a quarry.(10) Overburden--All materials displaced in an aggregates extraction operation that are not, or reasonably would not be expected to be, removed from the affected area.(11) Owner--Any person having title, wholly or partly, to the land on which a quarry exists or has existed.(12) Pit--An open excavation from which aggregates have been, or are being, extracted with a depth of five feet or more below the adjacent and natural ground level.(13) Quarry--The site from which aggregates for commercial sale are being, or have been, removed or extracted from the earth to form a pit, including the entire excavation, stripped areas, haulage ramps, and the immediately adjacent land on which the plant processing the raw materials is located. The term does not include any land owned or leased by the responsible party not being currently used in the production of aggregates for commercial sale or an excavation to mine clay or shale for use in manufacturing structural clay products.(14) Quarrying--The current and ongoing surface excavation and development without shafts, drafts, or tunnels, with or without slopes, for the extraction of aggregates for commercial sale from natural deposits occurring in the earth.(15) Reclamation--The land treatment processes designed to minimize degradation of water quality, damage to fish or wildlife habitat, erosion, and other adverse effects from quarries. Reclamation includes backfilling, soil stabilization and compacting, grading, erosion control measures, appropriate revegetation, or other measures, as appropriate.(16) Responsible party--Any owner, operator, lessor, or lessee who is primarily responsible for overall function and operation of a quarry located in a water quality protection area.(17) Restoration--Those actions necessary to change the physical, chemical, and/or biological qualities of a receiving water body in order to return the water body to its background condition. Restoration includes on- and off-site stabilization to reduce or eliminate an unauthorized discharge, or substantial threat of an unauthorized discharge from the permitted site.(18) Structural controls--Physical, constructed features that prevent or reduce the discharge of pollutants. Structural controls include, but are not limited to, sedimentation/detention ponds; velocity dissipation devices such as rock berms, vegetated berms, and buffers; and silt fencing.(19) Tertiary containment--A containment method by which an additional wall or barrier is installed outside of the secondary storage vessel or other secondary barrier in a manner designed to prevent a release from migrating beyond the tertiary wall or barrier before the release can be detected.(20) Water body--Any navigable watercourse, river, stream, or lake within a water quality protection area.(21) Water quality protection areas--(A) The portion of the Brazos River and its contributing watershed, located downstream of the Morris Shepard Dam on the Possum Kingdom Reservoir in Palo Pinto County, and extending to the county line between Parker and Hood Counties, Texas; and(B) the South Llano River and its contributing watershed in Kimble County, located upstream of the river 's confluence with the North Llano River at the City of Junction.</content><note type="source"><p>Source Note: The provisions of this §311.71 adopted to be effective August 3, 2006, 31 TexReg 6033; amended to be effective July 18, 2024, 49 TexReg 5146.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scH/s311.72"><num value="311.72">§311.72</num><heading>Applicability</heading><content>(a) This subchapter applies to a pilot program regulating quarrying in the John Graves Scenic Riverway and Coke Stevenson Scenic Riverway. This subchapter expires on September 1, 2027.(b) This subchapter does not apply to:(1) the construction or operation of a municipal solid waste facility regardless of whether the facility includes a pit or quarry that is associated with past quarrying;(2) a quarry, or associated processing plant, located in the John Graves Scenic Riverway that since on or before January 1, 1994, has been in regular operation without cessation of operation for more than 30 consecutive days and under the same ownership;(3) the construction or modification of associated equipment located on a quarry site or associated processing plant site in the John Graves Scenic Riverway described in paragraph (2) of this subsection;(4) an activity, facility, or operation regulated under Natural Resources Code, Texas Surface Coal Mining and Reclamation Act, Chapter 134; or(5) quarries mining clay and shale for use in manufacturing structural clay products.(c) Operations or facilities to which this subchapter does not apply under subsection (b) of this section, must maintain adequate documentation on site sufficient to demonstrate their exclusions.(1) Documentation demonstrating ownership includes, but is not limited to: deeds, property tax receipts, leases, or insurance records.(2) Documentation demonstrating continuous operation without cessation of operation for more than 30 consecutive days beginning on or before January 1, 1994, includes, but is not limited to: production records, sales receipts, payroll records, sales tax records, income tax records, or financial statements/reports.(3) Documentation demonstrating the construction or operation of a municipal solid waste facility, an activity, facility, or operation regulated under Natural Resources Code, Texas Surface Coal Mining and Reclamation Act, Chapter 134; or quarries mining clay and shale for use in manufacturing structural clay products includes, but is not limited to: any permit issued by the commission, Railroad Commission of Texas, or United States Environmental Protection Agency.</content><note type="source"><p>Source Note: The provisions of this §311.72 adopted to be effective August 3, 2006, 31 TexReg 6033; amended to be effective July 18, 2024, 49 TexReg 5146.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scH/s311.73"><num value="311.73">§311.73</num><heading>Prohibitions</heading><content>(a) The construction or operation of any new quarry, or the expansion of any existing quarry, within 200 feet of any water body located within a water quality protection area is prohibited.(b) Unless authorized under this subchapter, the construction or operation of any new quarry, or the expansion of an existing quarry, located between 200 feet and 1,500 feet of any water body located within a water quality protection area is prohibited.</content><note type="source"><p>Source Note: The provisions of this §311.73 adopted to be effective August 3, 2006, 31 TexReg 6033; amended to be effective July 18, 2024, 49 TexReg 5146.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scH/s311.74"><num value="311.74">§311.74</num><heading>Authorization</heading><content>(a) Any responsible party shall seek and obtain a permit subject to the requirements of Chapters 205 and 305 of this title (relating to General Permits for Waste Discharges and Consolidated Permits).(b) Based on the location of a given quarry, those quarries located within a water quality protection area, must comply with additional requirements imposed by this subchapter on its discharges.(1) In addition to the requirements of Chapters 205 and 305 of this title, a quarry located within a water quality protection area must meet the following requirements:(A) §311.75(1) of this title (relating to Permit Application Requirements);(B) §311.79 of this title (relating to Performance Criteria); and(C) §311.81(a) of this title (relating to Financial Responsibility).(2) In addition to the requirements of Chapters 205 and 305 of this title and paragraph (1) of this subsection, any quarry located within the 100-year floodplain or within one mile of a water body within a water quality protection area must obtain an individual permit.(3) In addition to the requirements of Chapters 205 and 305 of this title and paragraphs (1) and (2) of this subsection, all quarries located within 200 feet to 1,500 feet of a water body within a water quality protection area, and subject to the prohibition under §311.73(b) of this title (relating to Prohibitions), must meet the following requirements:(A) §311.75(2) of this title;(B) §311.80 of this title (relating to Additional Performance Criteria for Quarries Located Between 200 Feet and 1,500 Feet of a Water Body); and(C) §311.81(b) of this title.(4) For any quarry subject to the provisions of paragraph (2) of this subsection, a part of which is also located outside of the 100-year floodplain of, or beyond one mile from, a water body, the requirements of paragraph (2) of this subsection are applicable to the entire quarry. The executive director may waive, modify, or otherwise adjust these requirements for that portion of the quarry located outside of the 100-year floodplain of, or beyond one mile from, a water body.(5) For any quarry subject to the provisions of paragraph (3) of this subsection, a part of which is also located more than 1,500 feet from a water body, the requirements of paragraph (3) of this subsection will be applicable to the entire quarry. The executive director may waive, modify, or otherwise adjust these requirements for that portion of the quarry located more than 1,500 feet from a water body.</content><note type="source"><p>Source Note: The provisions of this §311.74 adopted to be effective August 3, 2006, 31 TexReg 6033; amended to be effective July 18, 2024, 49 TexReg 5146.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scH/s311.75"><num value="311.75">§311.75</num><heading>Permit Application Requirements</heading><content>Any responsible party who is required to obtain a permit, or who requests an amendment, modification, or renewal of a permit, shall complete, sign, and submit an application to the executive director, according to the provisions in Chapters 205 and 305 of this title (relating to General Permits for Waste Discharges and Consolidated Permits). Quarries located in a water quality protection area must submit additional information based on the location of the quarry.(1) All quarries located within a water quality protection area must submit the following:(A) a Restoration Plan as outlined in §311.76 of this title (relating to Restoration Plan); and(B) evidence of sufficiently funded bonding or proof of financial resources to mitigate, remediate, and correct any potential future effects on a water body by an unauthorized discharge to a water body in an amount no less than that specified in §311.81(a) of this title (relating to Financial Responsibility).(2) In addition to the permit application requirements specified in paragraph (1) of this section, all applications for quarries located within 200 feet to 1,500 feet of any water body within a water quality protection area must include:(A) a Technical Demonstration as outlined in §311.77 of this title (relating to Technical Demonstration); and(B) a Reclamation Plan as outlined in §311.78 of this title (relating to Reclamation Plan).(3) In addition to the permit application requirements in paragraphs (1) and (2) of this section, the executive director may require any additional information deemed appropriate and necessary to demonstrate compliance with the provisions of Texas Water Code, Chapter 26, Subchapter M or this subchapter.</content><note type="source"><p>Source Note: The provisions of this §311.75 adopted to be effective August 3, 2006, 31 TexReg 6033; amended to be effective July 18, 2024, 49 TexReg 5146.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scH/s311.76"><num value="311.76">§311.76</num><heading>Restoration Plan</heading><content>(a) The Restoration Plan must include a proposed plan of action for how the responsible party will restore the receiving waters to background conditions in the event of an unauthorized discharge that affects those receiving waters. The Restoration Plan, at a minimum, must:(1) identify receiving waters at risk of an unauthorized discharge from the quarry;(2) describe the process to be used in documenting the existing physical, chemical, and/or biological background conditions of each of the adjacent receiving waters;(3) provide a schedule for completing the determination of background conditions of each of the receiving waters and for updating background conditions in the future, as appropriate;(4) identify the goals and objectives of potential restoration actions;(5) provide a reasonable range of restoration alternatives and the preferred restoration alternative that may be implemented to return the affected waters to background conditions in the event of an unauthorized discharge;(6) describe the process for monitoring the effectiveness of the preferred restoration action, including performance criteria, that will be used to determine the success of the restoration or need for interim site stabilization;(7) identify a process for public involvement in the selection of the restoration alternative to be implemented to restore the receiving waters to background conditions; and(8) provide a detailed estimate of the maximum probable costs required to complete a restoration action, given the size, location, and description of the quarry and the nature of the receiving waters. The maximum probable cost must be based on the costs to a third party conducting the action without a financial interest or ownership in the quarry.(b) Certification of the Restoration Plan must be provided, within the appropriate area or discipline, by a licensed Texas professional engineer or a licensed Texas professional geoscientist. Components of the Restoration Plan may be independently certified, as appropriate.</content><note type="source"><p>Source Note: The provisions of this §311.76 adopted to be effective August 3, 2006, 31 TexReg 6033.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scH/s311.77"><num value="311.77">§311.77</num><heading>Technical Demonstration</heading><content>(a) The Technical Demonstration must include, at a minimum:(1) a time schedule for the proposed quarry from initiation to termination of operations, including reclamation;(2) a detailed description of the type of quarrying to be conducted, including the processes/methods employed (e.g., pit mining where blasting is employed);(3) a geological description of the quarry area, including a detailed description of the material deposit: type, geographical extent, depth, and volume; and a description of the general area geology;(4) identification and a detailed description of any other operations on site, including raw-material processing and/or secondary products (e.g., cement) processing;(5) identification and a detailed description of type, character, and volume of wastewater and storm water generated on site;(6) a topographic map, at a scale appropriate to represent the quarry operation and all of the following within the boundaries of the quarry:(A) waterbodies;(B) existing and proposed roads including quarry access roads;(C) existing and proposed railroads;(D) the 100-year floodplain boundaries, if applicable;(E) structures (e.g., office buildings);(F) the location of all known wells including, but not limited to, water wells, oil wells, and unplugged and abandoned wells;(G) active, post, and reclaimed quarrying areas;(H) buffer areas;(I) raw material, intermediate material, final product, waste product, byproduct, and/or ancillary material storage and processing areas;(J) chemical and fuel storage areas;(K) vehicle/equipment maintenance, cleaning, and fueling areas;(L) vehicle/equipment loading and unloading areas;(M) baghouses and other air treatment units exposed to precipitation; and(N) waste disposal areas;(7) a Surface Water Drainage and Water Accumulation Plan. The Surface Water Drainage and Water Accumulation Plan must be designed to prevent damage to fish, wildlife, and fish/wildlife habitat from erosion, siltation, and runoff from quarry operations. The Surface Water Drainage and Water Accumulation Plan must, at a minimum:(A) describe the use and monitoring of structural controls and best management practices as identified in paragraph (8) of this subsection designed to control erosion, siltation, and runoff; and(B) provide a topographic map, at a scale appropriate to represent the quarry operation and all of the following within the boundaries of the quarry:(i) the location of each process wastewater and/or storm water outfall;(ii) an outline of the drainage area that contributes storm water to each outfall;(iii) treatment, detention, and water storage tanks and ponds;(iv) structural controls for managing storm water and/or process wastewater; and(v) physical features of the site that would influence storm water runoff or contribute a dry weather flow; and(8) a Best Available Technology Evaluation. The Best Available Technology Evaluation assists staff in reviewing and determining the best available technology designed to control erosion, siltation, and runoff from the quarry to minimize disturbance and adverse effects to fish, wildlife, and related environmental resources. Where practical, the Best Available Technology Evaluation must assist staff in reviewing and determining best available technology designed to enhance fish, wildlife, and related environmental resources.(A) The Best Available Technology Evaluation must assess the use of structural controls and best management practices.(B) The Best Available Technology Evaluation must evaluate performance criteria outlined in §311.79 and §311.80 of this title (relating to Performance Criteria and Additional Performance Criteria for Quarries Located Between 200 Feet and 1,500 Feet of a Water Body).(C) Structural control design and construction must be certified by a licensed Texas professional engineer. Design and construction plans/specifications must be maintained on site and made available at the request of the executive director; and(9) a procedure and schedule for reviewing the Technical Demonstration for consistency with quarry operations and site conditions and effectiveness in controlling erosion, siltation, and runoff.(b) Certification of the Technical Demonstration must be provided, within the appropriate area or discipline, by a licensed Texas professional engineer or a licensed Texas professional geoscientist. Components of the Technical Demonstration may be independently certified, as appropriate.</content><note type="source"><p>Source Note: The provisions of this §311.77 adopted to be effective August 3, 2006, 31 TexReg 6033; amended to be effective July 18, 2024, 49 TexReg 5146.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scH/s311.78"><num value="311.78">§311.78</num><heading>Reclamation Plan</heading><content>(a) The Reclamation Plan establishes procedures and standards for reclamation of the quarry.(1) The Reclamation Plan must, at a minimum:(A) provide a description of the proposed use of the disturbed area following reclamation;(B) develop site-specific standards for reclamation appropriate to the end use proposed in subparagraph (A) of this paragraph that addresses the following:(i) removal or final stabilization of all raw material, intermediate material, final product, waste product, byproduct, and/or ancillary material;(ii) removal of waste or closure of all waste disposal areas;(iii) removal of structures, where appropriate;(iv) removal and reclamation of all temporary roads and/or railroads;(v) backfilling, regrading, and recontouring;(vi) slope stability for remaining highwalls and detention ponds;(vii) revegetation of the reclaimed area giving consideration to species diversity and the use of native species;(viii) establishment of wildlife habitat;(ix) establishment of drainage patterns;(x) establishment of permanent control structures (e.g., retention ponds), where necessary, to address erosion, siltation, and runoff from post quarrying and reclaimed areas; and(xi) removal of all equipment;(C) provide a description of how reclamation will be conducted (e.g., phased reclamation) and a timetable for the completion of reclamation activities.(2) The Reclamation Plan must include a detailed estimate of the maximum probable cost required to complete and implement the plan. The maximum probable cost must be based on the cost to a third party conducting the reclamation without a financial interest or ownership in the quarry operation.(b) Certification of the Reclamation Plan must be provided, within the appropriate area or discipline, by a licensed Texas professional engineer or a licensed Texas professional geoscientist. Components of the Reclamation Plan may be independently certified, as appropriate.</content><note type="source"><p>Source Note: The provisions of this §311.78 adopted to be effective August 3, 2006, 31 TexReg 6033.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scH/s311.79"><num value="311.79">§311.79</num><heading>Performance Criteria</heading><content>The following performance criteria are applicable to all quarries located within a water quality protection area.(1) Discharges from quarries shall meet the following effluent limitations.Attached Graphic(2) Discharges from quarries resulting from a rainfall event greater than the 25-year, 24-hour rainfall event are not subject to effluent limitations in paragraph (1) of this section.(3) Discharges from quarries shall be monitored as follows.Attached Graphic(4) Results of analysis for monitoring conducted as specified in §311.75(3) of this title (relating to Permit Application Requirements) shall be submitted monthly on approved self-report forms. Monitoring and reporting records, including strip charts and records of calibration and maintenance, shall be retained on site, or shall be readily available for review by a commission representative for a period of three years from the date of the record or sample, measurement, or report.(5) The permittee shall install a permanent rain gauge at the plant site and keep daily records of rainfall and the resulting flow. Monitoring records shall be retained on site, or shall be readily available for review by a commission representative for a period of three years from the date of the record.</content><note type="source"><p>Source Note: The provisions of this §311.79 adopted to be effective August 3, 2006, 31 TexReg 6033; amended to be effective July 18, 2024, 49 TexReg 5146.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scH/s311.80"><num value="311.80">§311.80</num><heading>Additional Performance Criteria for Quarries Located Between 200 Feet and 1,500 Feet of a Water Body</heading><content>Authorizations to discharge from quarries located between 200 feet and 1,500 feet of a water body within a water quality protection area require the permittee to satisfy the following performance criteria. An evaluation of these performance criteria must be incorporated into the Technical Demonstration, as required in §311.77 of this title (relating to Technical Demonstration).(1) The down-gradient perimeter of the quarry must include a final control structure to manage the discharge of wastewater and/or storm water. The final control structure must be designed and constructed as follows.(A) Certification of the final control structure design and construction must be provided by a licensed Texas professional engineer. Design and construction plans and specifications must be maintained on site and made available at the request of the executive director.(B) The final control structure side slopes must not exceed a gradient of 1:3 (33%).(C) The final control structure must be designed to impound, at minimum, the volume of water resulting from a 25-year, 24-hour rainfall event for the final control structure drainage area.(D) The final control structures must be properly stabilized (via use of vegetation, riprap, and/or other acceptable technique) to prevent the final control structure from being a source of pollution and/or to prevent structural failure.(E) The final control structure must be inspected once every 14 calendar days and within 24 hours of any rainfall event totaling 0.5 inches or greater. Where an inspection identifies failure and/or problems with the final control structure, corrections must be made within seven calendar days of the inspection. Records of these inspections and any site stabilizations must be maintained on site for a period of three years and made available to the executive director, upon request.(F) A minimum 200-foot vegetative buffer must be maintained between the final control structure and any water body.(2) All treatment, detention, and water storage tanks and ponds must be operated to maintain a minimum freeboard of two feet.(3) A permanent depth marker shall be installed and maintained on all treatment, detention, and water storage tanks and ponds. The depth marker shall identify the volume required for the design rainfall event, as specified in paragraph (1)(c) of this section, and freeboard.(4) The quarry operation must demonstrate compliance with all the requirements of 36 Code of Federal Regulations Part 800 (Protection of Historic Properties) and 9 Texas Natural Resources Code, Chapter 191 (Antiquities Code).(5) The quarry operation must not have a detrimental effect on any federal endangered/threatened, aquatic/aquatic-dependent species/proposed species; or their critical habitat.(6) Waste management units must be located a minimum horizontal distance from water wells, in accordance with 16 TAC Chapter 76 (relating to Water Well Drillers and Water Well Pump Installers), or where those regulations do not apply, the minimum distance to a water well must be 500 feet.(7) Secondary containment of chemical and fuel storage is required. Where quarry operations overlay aquifer and/or aquifer recharge areas and sufficient confining layers do not exist to preclude contamination of groundwater, tertiary containment is required for all chemical and fuel storage.(8) Quarry operations must not be located on natural hazard land, areas subject to frequent flooding, or in areas of unstable geology.</content><note type="source"><p>Source Note: The provisions of this §311.80 adopted to be effective August 3, 2006, 31 TexReg 6033; amended to be effective July 18, 2024, 49 TexReg 5146.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scH/s311.81"><num value="311.81">§311.81</num><heading>Financial Responsibility</heading><content>(a) An owner or operator of a quarry located within a water quality protection area shall establish and maintain financial assurance for restoration in accordance with Chapter 37, Subchapter W of this title (relating to Financial Assurance for Quarries). The amount of financial assurance must be no less than the amount determined by the executive director as sufficient to meet the requirements of the Restoration Plan in §311.76(a)(8) of this title (relating to Restoration Plan).(b) An owner or operator of a quarry located between 200 feet and 1,500 feet of a water body within a water quality protection area shall establish and maintain financial assurance for reclamation in accordance with Chapter 37, Subchapter W of this title. The amount of financial assurance must be no less than the amount determined by the executive director as sufficient to meet the requirements of the Reclamation Plan in §311.78(a)(2) of this title (relating to Reclamation Plan).</content><note type="source"><p>Source Note: The provisions of this §311.81 adopted to be effective August 3, 2006, 31 TexReg 6033; amended to be effective July 18, 2024, 49 TexReg 5146.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scH/s311.82"><num value="311.82">§311.82</num><heading>Existing Quarries</heading><content>(a) Existing quarries required to seek and obtain authorization in accordance with §311.74(b)(1) of this title (relating to Authorization), must submit a Notice of Intent as required by a commission-issued general permit. Subject to the provisions of this subsection and maintaining compliance, existing quarries subject to the requirements of §311.74(b)(1) of this title that have authorization under a Texas Pollutant Discharge Elimination System Permit or Texas Land Application Permit issued under Chapters 205 or 305 of this title (relating to General Permits for Waste Discharges and Consolidated Permits), may continue to operate under the terms of that permit until the commission issues or denies authorization under this subchapter.(b) Existing quarries located in the Coke Stevenson Scenic Riverway required to seek and obtain authorization in accordance with §311.74(b)(2) of this title must submit an individual Texas Pollutant Discharge Elimination System or Texas Land Application Permit application not later than 180 days following the effective date of this subchapter. Subject to the provisions of this subsection and maintaining compliance, existing quarries subject to the requirements of §311.74(b)(2) of this title that have authorization under a Texas Pollutant Discharge Elimination System Permit or Texas Land Application Permit issued under Chapters 205 or 305 of this title, may continue to operate under the terms of that permit until the commission issues or denies authorization under this subchapter.(c) Existing quarries located in the Coke Stevenson Scenic Riverway required to seek and obtain authorization in accordance with §311.74(b)(3) of this title must submit an individual Texas Pollutant Discharge Elimination System or Texas Land Application Permit application not later than 180 days following the effective date of this subchapter. An existing quarry may not operate until the commission issues authorization under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §311.82 adopted to be effective August 3, 2006, 31 TexReg 6033; amended to be effective July 18, 2024, 49 TeReg 5146.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c311/scI"><num value="I">SUBCHAPTER I</num><heading>DISCHARGE OF PESTICIDES</heading><section identifier="/us/state/tx/tac/t30/p1/c311/scI/s311.91"><num value="311.91">§311.91</num><heading>Discharge of Pesticides</heading><content>Discharges associated with pesticide applications authorized by the commission or exempted from permit requirements by federal or state statute are exempt from the discharge prohibition in Subchapters A, B, and F of this chapter (relating to Watershed Protection).</content><note type="source"><p>Source Note: The provisions of this §311.91 adopted to be effective March 31, 2011, 36 TexReg 1988.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c311/scJ"><num value="J">SUBCHAPTER J</num><heading>BEST MANAGEMENT PRACTICES FOR SAND MINING FACILITY OPERATIONS WITHIN THE SAN JACINTO RIVER BASIN</heading><section identifier="/us/state/tx/tac/t30/p1/c311/scJ/s311.101"><num value="311.101">§311.101</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, have the following meanings.(1) Aggregate Production Operation (APO)--As defined in Chapter 342 of this title (relating to Regulation of Certain Aggregate Production Operations).(2) Best management practices (BMPs)--Schedules of activities, prohibitions of practices, maintenance procedures, and other techniques to control, prevent or reduce the discharge of pollutants into surface water in the state. The BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spills or leaks, sludge or waste disposal, or drainage from raw material storage areas.(3) Infeasible--Not technologically possible or not economically practicable and achievable in light of best industry practices.(4) Minimize--To reduce or eliminate to the extent achievable using control measures that are technologically available and economically practicable and achievable in light of best industry practices.(5) Operator--A person responsible for the management of an aggregate production operation (APO) facility subject to the provisions of this subchapter. The APO facility operators include entities with operational control over APO regulated activities, including the ability to modify those activities; or entities with day-to-day operational control of activities at a facility necessary to ensure compliance with this subchapter (e.g., the entity is authorized to direct workers at a facility to carry out activities required by this subchapter).(6) Sand Mining Facilities--The aggregate production operations (APOs) engaged in activities described by Standard Industrial Classification codes 1442 and 1446, concerning industrial and construction sand. Additionally, this applies to any other APO that the executive director has determined to be a sand mining facility by sending written notice to the APO operator.(7) San Jacinto River Watershed--Those portions of the San Jacinto River Watershed that includes the watersheds of the following and its tributaries:Attached Graphic(A) the East Fork of the San Jacinto River in Montgomery, Harris and Liberty Counties;(B) Peach Creek in Montgomery County;(C) Caney Creek in Montgomery and Harris Counties;(D) the West Fork of the San Jacinto River from the Lake Conroe Dam in Montgomery and Harris Counties to the Lake Houston Dam in Harris County;(E) Lake Creek in Montgomery and Grimes Counties;(F) Spring Creek in Montgomery and Harris Counties; and(G) Cypress Creek in Harris and Waller Counties.(8) Storm Event--A precipitation event that results in a measurable amount of precipitation.</content><note type="source"><p>Source Note: The provisions of this §311.101 adopted to be effective January 6, 2022, 46 TexReg 9401.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scJ/s311.102"><num value="311.102">§311.102</num><heading>Scope and Applicability</heading><content>(a) The purpose of this chapter is to regulate, through Best Management Practices (BMPs), sand mining facilities, which have the potential to adversely impact water quality within the San Jacinto River Watershed as defined in this subchapter.(b) This subchapter applies to sand mining facilities located in the San Jacinto River Watershed.(c) The executive director shall develop and maintain a guidance document of BMPs to minimize water pollution from sand mining facilities regulated by this subchapter. The BMPs shall be based on technically supported information that is generally relied upon by professionals within the appropriate environmental area or discipline. The BMPs guidance document shall be updated on a frequency determined by the executive director to allow for technological advancements and improved practices.</content><note type="source"><p>Source Note: The provisions of this §311.102 adopted to be effective January 6, 2022, 46 TexReg 9401.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c311/scJ/s311.103"><num value="311.103">§311.103</num><heading>General Requirements</heading><content>(a) Vegetative Controls. The operator shall develop and implement all vegetative Best Management Practices (BMPs) identified in the guidance document developed by the executive director for the appropriate phases of the sand mining facility's operation.(b) Structural Controls. The operator shall develop and implement all structural BMPs identified in the guidance document developed by the executive director for the appropriate phases of the sand mining facility's operation.(c) Pre-mining, Mining, and Post-mining. The operator shall identify, develop and implement all other BMPs identified in the guidance document developed by the executive director for pre-mining, mining, and post-mining phases of the sand mining facility's operation.(d) Infeasibility. Certain BMPs for sections (a), (b), and (c) above may be infeasible for some sand mining facility operations based on site-specific factors. An infeasibility determination is required when BMPs may be infeasible, as defined in §311.101(3). Detailed, supporting documentation shall be maintained onsite demonstrating why the BMP is infeasible, that the alternative BMP is more appropriate for the site, and that the alternative BMP provides equivalent or improved water quality protection. The operator shall implement the documented alternative, equivalent BMP at the site. The following criteria shall be used when documenting and determining the infeasibility of a BMP and that an alternative, equivalent BMP is more appropriate for the site:(1) human health and safety concerns;(2) local restrictions or codes;(3) cost effectiveness;(4) site soils;(5) slope;(6) available area;(7) precipitation patterns;(8) site vegetation;(9) infiltration capacity;(10) depth and distance to water in the state; and(11) other similar technological considerations.(e) Installation and Maintenance. The operator shall install and maintain all control measures in accordance with the manufacturer's specifications and good engineering practices.(f) Replacement or Modification of Controls. Following periodic inspections, the operator shall replace or modify controls in a timely manner, but no later than the next anticipated storm event. Periodic inspections include those performed by the operator in compliance with the guidance document of BMPs or permits required by Chapters 205 or 305 of this title (relating to General Permits for Waste Discharges and Consolidated Permits, respectively) or inspections performed by the executive director which determine that such measures have been used inappropriately, or incorrectly, or are not adequate.(g) Certification of BMPs. The operator shall obtain certification of the design and installation of all new and existing BMPs, within the appropriate area or discipline, by a licensed Texas professional engineer or a licensed Texas professional geoscientist prior to commencing or continuing regulated activities. The selected BMPs may be independently certified, as appropriate.(h) Mine Plan and Final Stabilization Report.(1) The operator shall develop a Mine Plan prior to commencing or continuing regulated activities at the site. The Mine Plan shall:(A) be developed and maintained onsite in accordance with the guidance document of BMPs developed by the executive director;(B) be kept current and updated as necessary to address changing conditions at the site;(C) be signed and certified by a licensed Texas professional engineer or a licensed Texas professional geoscientist.(2) Using the Mine Plan referenced in §311.103(h)(1), the operator shall develop a Final Stabilization Report prior to operations terminating at the site or portion(s) of the site.(A) The Final Stabilization Report shall:(i) be developed in accordance with the guidance document of BMPs developed by the executive director;(ii) be signed and certified by a licensed Texas professional engineer or a licensed Texas professional geoscientist;(iii) be submitted to the executive director for review and approval prior to operations terminating at the site or portion(s) of the site;(iv) receive executive director approval prior to implementation.(B) All required elements of the approved Final Stabilization Report shall be implemented and completed prior to operations terminating at portion(s) of the site or cancelling any permit or authorization required by Chapter 205 or 305 of this title as a result of operations terminating at the site.(i) Investigation. The executive director may conduct an investigation in addition to the review of the Final Stabilization Report, prior to the termination of sand mining facility operations at the site or portion(s) of the site.(j) Documentation. All documentation related to compliance with this subchapter shall be maintained onsite and made readily available for inspection and review upon request by authorized executive director staff as well as local pollution control entities with jurisdiction. The executive director may require any additional information deemed appropriate and necessary to demonstrate compliance with the provisions of Texas Water Code, Chapter 26 or this subchapter.(k) Existing Sand Mining Facilities.(1) Sand mining facility operators registered as an APO with the commission on the effective date of this rule must comply with §§311.103(a) - (e) and (g) of this title within 180 days following the effective date of this subchapter. All future updates or changes to BMPs must be certified in accordance with §311.103(g).(2) Sand mining facility operators registered as an APO with the commission on the effective date of this rule must comply with §311.103(h)(1) of this title within 180 days following the effective date of this subchapter. All future updates or changes to the Mine Plan must be made in accordance with §311.103(h)(1).</content><note type="source"><p>Source Note: The provisions of this §311.103 adopted to be effective January 6, 2022, 46 TexReg 9401.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c312"><num value="312">CHAPTER 312</num><heading>SLUDGE USE, DISPOSAL, AND TRANSPORTATION</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c312/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c312/scA/s312.1"><num value="312.1">§312.1</num><heading>Purpose</heading><content>This chapter establishes standards, which consist of general requirements, pollutant limits, management practices, and operational standards, for the final use or disposal of sewage sludge or biosolids generated during the treatment of domestic sewage in a treatment works, and for the final use or disposal of domestic septage. Standards are included in this chapter for sewage sludge, biosolids, water treatment residuals, and domestic septage land applied for beneficial use or placed on a surface disposal site. Standards are also included in this chapter for sewage sludge or biosolids fired in an incinerator. Also included in this chapter are pathogen and vector attraction reduction requirements for sewage sludge, biosolids, and domestic septage land applied or placed on a surface disposal site. In addition, the standards in this chapter include the frequency of monitoring and recordkeeping requirements when sewage sludge, biosolids, domestic septage, or water treatment residuals are land applied or placed on a surface disposal site. Also included are the frequency of monitoring and recordkeeping requirements when sewage sludge or biosolids are fired in an incinerator. Also included are requirements relating to the transportation of sewage sludge, biosolids, water treatment residuals, domestic septage, chemical toilet waste, grit trap waste, and grease trap waste.</content><note type="source"><p>Source Note: The provisions of this §312.1 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scA/s312.2"><num value="312.2">§312.2</num><heading>Applicability</heading><content>(a) This chapter applies to any person who prepares sewage sludge, biosolids, or domestic septage.(b) This chapter applies to any person who fires sewage sludge or biosolids in an incinerator.(c) This chapter applies to any person who land applies sewage sludge, biosolids, water treatment residuals, or domestic septage and to the owner/operator of a surface disposal site.(d) This chapter applies to sewage sludge, biosolids, water treatment residuals, or domestic septage that is land applied or placed on a surface disposal site.(e) This chapter applies to sewage sludge or biosolids fired in an incinerator.(f) This chapter applies to land where sewage sludge, biosolids, water treatment residuals, or domestic septage is applied to a surface disposal site and to an incinerator.(g) This chapter applies to any person who transports sewage sludge, biosolids, water treatment residuals, domestic septage, chemical toilet waste, grit trap waste, or grease trap waste. This chapter does not apply to oily water mixtures in waste management units such as tanks, fractionation tanks, and sumps that meet the design requirements of the American Petroleum Institute for oil/water separators or have been designed for oil-water separation. Recycling of oil-water mixtures from the waste management units designed for oil-water separation must comply with the requirements found in Chapter 324 of this title (relating to Used Oil Standards). Waste in waste management units that do not meet the design criteria in this subsection and that are plumbed directly to a sanitary sewer are covered by this chapter.(h) This chapter applies to the exit gas from an incinerator stack.(i) This chapter applies to any person who applies water treatment residuals for disposal in a landfill, surface impoundment, or waste pile, as defined in 40 Code of Federal Regulations (CFR) §257.2.(j) This chapter applies to any person who applies water treatment residuals for disposal in a land application unit, as defined in §312.121 of this title (relating to Purpose, Scope, and Standards).(k) This chapter applies to water treatment residuals which are disposed of in a landfill, surface impoundment, or waste pile, as defined in 40 CFR §257.2.(l) This chapter applies to water treatment residuals which are disposed of in a land application unit, as defined in §312.121 of this title.</content><note type="source"><p>Source Note: The provisions of this §312.2 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective October 2, 2003, 28 TexReg 8346; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scA/s312.3"><num value="312.3">§312.3</num><heading>Exclusions</heading><content>(a) This chapter does not authorize processes used to treat domestic sewage or for processes used to treat sewage sludge or domestic septage prior to final use or disposal, except as provided in §312.82 and §312.83 of this title (relating to Pathogen Reduction and Vector Attraction Reduction).(b) This chapter does not require the selection of a method of use or disposal for sewage sludge, biosolids, or domestic septage. The determination of the way sewage sludge, biosolids, or domestic septage is used or disposed is a local determination.(c) This chapter does not authorize sewage sludge or biosolids co-fired in an incinerator with other wastes or for the incinerator in which sewage sludge or biosolids and other wastes are co-fired. Other wastes do not include auxiliary fuel, as defined in 40 Code of Federal Regulations (CFR) §503.41(b), fired in an incinerator.(d) This chapter does not authorize the use and disposal of sewage sludge generated at an industrial facility, unless the sewage sludge is of a domestic origin and the sewage sludge is generated from the treatment of domestic sewage. If a process at an industrial facility that primarily treats industrial wastewater combines domestic sewage with any type of industrial solid waste, any resulting sewage sludge, process waste, or wastewater generated at the industrial facility will be considered to be industrial solid waste and must be processed, stored, or disposed of in accordance with the applicable requirements of Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste). If a facility that primarily treats domestic wastewater combines domestic sewage with any type of industrial solid waste, any resulting sewage sludge, process waste, or wastewater generated at the facility will be considered to be domestic sewage sludge and must be processed, stored, or disposed of in accordance with the applicable requirements of this chapter.(e) This chapter does not authorize the use or disposal of sewage sludge or other wastes determined to be a hazardous waste, as defined in §335.1 of this title (relating to Definitions) or as determined in accordance with 40 CFR Part 261 as amended through February 22, 2019 (84 FR 5816).(f) This chapter does not authorize the use or disposal of sewage sludge, biosolids, or water treatment residuals with a concentration of polychlorinated biphenyls equal to or greater than 50 milligrams per kilogram of total solids (dry weight basis).(g) This chapter does not authorize the use or disposal of ash generated during the firing of sewage sludge or biosolids in an incinerator.(h) This chapter does not authorize the storage of sewage sludge, biosolids, domestic septage, grease trap waste, chemical toilet waste, or grit trap waste, except as provided for in §312.50 of this title (relating to Storage and Staging of Biosolids and Domestic Septage) and §312.147 of this title (relating to Temporary Storage).(i) This chapter does not authorize the processing, use, or disposal of grease trap waste, grit trap waste, chemical toilet waste, grit (e.g., sand, gravel, cinders, or other materials with a high specific gravity), screenings (e.g., relatively large materials such as rags), or other wastes generated during preliminary treatment of domestic sewage in a treatment works.(j) This chapter does not authorize the use or disposal of industrial septage or a mixture of domestic septage and industrial septage.(k) This chapter does not apply to wastes resulting from activities associated with the exploration, development, and production of oil or gas or geothermal resources, as defined in §335.1 of this title, except for domestic septage or sewage sludge which may be collected at facilities where such activities occur, that is not mixed in any manner with other oil, gas, or geothermal wastes.(l) Experimental use shall be excluded from the requirements of this chapter, provided the following conditions are met at the time the sewage sludge or biosolids are placed on a land application unit or reclamation site:(1) the metal concentrations established in §312.43(b)(3) (Table 3) of this title (relating to Metal Limits) shall be met;(2) one of the vector attraction reduction alternatives in §312.83(b)(1) - (11) of this title shall be met;(3) the pathogen reduction compliance requirements established in §312.82(a) or (b) of this title shall be met;(4) the applicant shall receive written approval from the executive director prior to commencement of operations for the experimental project; and(5) the applicant shall submit to the executive director the aims and goals of the project and any other additional information the executive director believes necessary to establish the experimental nature of the project.(m) This chapter does not authorize the land application of processed or unprocessed chemical toilet waste, grease trap waste, grit trap waste, milk solids, or similar non-hazardous municipal or industrial solid wastes, or any of the wastes listed combined with biosolids, sewage sludge, domestic septage, or water treatment residuals,unless the grease trap waste is added at a fats, oil, and grease receiving facility as part of an anaerobic digestion process.(n) This chapter does not allow for the registration of sewage sludge, biosolids, or domestic septage processing operations or facilities. Such facilities or operations are required to obtain a permit.(o) This chapter does not authorize sewage sludge, biosolids, or domestic septage processing operations unless the processing occurs at a treatment works. Processing operations that are not located at a treatment works must be authorized under Chapter 330 of this title (relating to Municipal Solid Waste) or Chapter 332 of this title (relating to Composting). The final use and disposal of materials processed at an authorized processing facility may be authorized in accordance with this chapter. Processing permits that were issued on or prior to the effective date of the amendments to this chapter are to continue under the rule requirements as they existed immediately prior to the effective date of the amendments.</content><note type="source"><p>Source Note: The provisions of this §312.3 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scA/s312.4"><num value="312.4">§312.4</num><heading>Required Authorizations or Notifications</heading><content>(a) Permits. Except where in conflict with other chapters in this title, a permit shall be required before any storage, processing, incineration, disposal of sewage sludge, biosolids, or water treatment residuals in a monofill, except for storage allowed under this section, §312.50 of this title (relating to the Storage and Staging of Biosolids and Domestic Septage), §312.61(c) of this title (relating to Applicability), §312.147 of this title (relating to Temporary Storage), and §312.148 of this title (relating to Secondary Transportation of Waste). Any permit authorizing disposal of sewage sludge, biosolids, or water treatment residuals in a monofill shall be in accordance with any applicable standards of Subchapter C of this chapter (relating to Surface Disposal) or §312.101 of this title (relating to Incineration). No permit will be required under this chapter if issued in accordance with other requirements of the commission, as specified in §312.5 of this title (relating to Relationship to Other Requirements).(1) The effective date of a permit is the date that the executive director signs the permit.(2) Site permit information on file with the commission must be confirmed or updated, in writing, whenever the mailing address and/or telephone number of the owner or operator is changed, or whenever requested by the commission.(3) If a permit is required under this chapter, all activities at the site under this chapter, except transportation, shall be incorporated in the permit.(4) The commission may not issue a Class B biosolids permit for a land application unit that is located both in a county that borders the Gulf of Mexico and within 500 feet of any water well or surface water.(b) Notification of certain Class A or Class AB biosolids land application activities.(1) If biosolids do not exceed the metal concentration limits in Table 3 of §312.43(b)(3) of this title (relating to Metal Limits) has a concentration of polychlorinated biphenyls less than 50 milligrams per kilogram of total solids, meets the Class A or Class AB pathogen reduction requirements in §312.82(a) of this title (relating to Pathogen Reduction), and meets one of the requirements in §312.83(b)(1) - (8) of this title (relating to Vector Attraction Reduction), it will not be subject to the requirements of §312.10 of this title (relating to Permit and Registration Applications Processing), §312.11 of this title (relating to Permits), §312.12 of this title (relating to Registrations), and §312.13 of this title (relating to Actions and Notice), except as provided in this subsection.(2) Any generator in Texas or any person who first conveys sewage sludge or biosolids from out of state into the State of Texas and who proposes to store, land apply, or market and distribute biosolids meeting the standards of this subsection shall submit notification to the executive director, at least 30 days prior to engaging in such activities for the first time on a form approved by the executive director. A completed notification form shall be submitted to the Water Quality Division by certified mail, return receipt requested. The notification must contain information detailing:(A) biosolids classification, all points of generation, and wastewater treatment facility identification;(B) name, address, telephone number, and the longitude and latitude of the site for all persons who are being proposed to receive the biosolids directly from the generator;(C) a description in a marketing and distribution plan that describes any of the following activities:(i) to sell or give away biosolids directly to the public, including a general description of the types of end uses proposed by persons who will be receiving the biosolids;(ii) methods of distribution, marketing, handling, and transportation of the biosolids;(iii) a reasonable estimate of the expected quantity of biosolids to be generated or handled by the person making the notification; and(iv) a description of any proposed storage and the methods that will be employed to prevent surface water runoff of the biosolids or contamination of groundwater; and(D) prior to land application, a map showing the buffer zone areas required under §312.44(c)(2)(D) and (E) of this title (relating to Management Practices) for all persons who are being proposed to receive the biosolids directly from the generator that meets one of the Class AB pathogen reduction requirements in §312.82(a)(2) of this title.(3) Thirty days after the notification has occurred, the activities regulated by this subsection may commence unless the executive director determines that the activities do not meet the requirements of this subsection or an applicant's permit. After receiving a notification, the executive director may review a generator's activities or the activities of the person conveying the biosolids into Texas to determine whether any or all the requirements of this chapter are necessary. In making this determination, the executive director will consider specific circumstances related to handling procedures, site conditions, or the application rate of the biosolids. The executive director may review a proposal for storage of biosolids, considering the amount of time and the amount of material described on the notification. Also, in accordance with §312.41 of this title (relating to Applicability), any reasonably anticipated adverse effect that may occur due to a metal pollutant in the biosolids may also be considered.(4) Annually, on September 30th, each person subject to notification of certain Class A and Class AB biosolids activities required by this subsection shall provide a report to the executive director, which shows in detail all activities described in paragraph (2) of this subsection that occurred during the year (reporting period September 1st of previous year to August 31st of current year). The report must include an update of new information since the prior report or notification was submitted and all newly proposed activities. The report must also include a description of the annual amounts of biosolids provided to each initial receiver from the in-state generator and for persons who convey out-of-state biosolids into Texas, the amounts provided from this person directly to any initial receivers and an updated list of persons receiving the biosolids. This report can be combined with the annual report(s) required under §312.48 of this title (relating to Reporting), §312.68 of this title (relating to Reporting), or §312.128 of this title (relating to Annual Report).(c) Registration of land application units.(1) Registrations may only be obtained for the land application of Class A or Class AB biosolids that do not meet the requirements of subsection (b) of this section, water treatment residuals, and domestic septage.(2) The effective date of the registration is the date that the executive director signs the registration. Site registration information on file with the commission must be confirmed or updated, in writing, whenever the mailing address and/or telephone number of the owner or operator is changed or requested by the executive director.(d) Authorization. No person may cause, suffer, allow, or permit any activity of land application of biosolids, water treatment residuals, or domestic septage unless such activity has received the prior written authorization of the commission.</content><note type="source"><p>Source Note: The provisions of this §312.4 adopted to be effective August 29, 2002, 27 TexReg 7958; amended to be effective October 20, 2005, 30 TexReg 6743; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scA/s312.5"><num value="312.5">§312.5</num><heading>Relationship to Other Requirements</heading><content>Disposal of sewage sludge, biosolids, or water treatment residuals in a municipal solid waste landfill unit, as defined in 40 Code of Federal Regulations (CFR) §258.2, that complies with the requirements in 40 CFR Part 257 and Part 258 constitutes compliance with federal Clean Water Act (CWA), §405(d). Any person who prepares sewage sludge, biosolids, or water treatment residuals that are disposed of in a municipal solid waste landfill unit shall ensure that the sewage sludge, biosolids, or water treatment residuals meets the requirements in 40 CFR Part 258 concerning the quality of materials disposed of in a municipal solid waste landfill unit. Storage, processing, or disposal of sewage sludge or biosolids authorized by a permit issued pursuant to Texas Water Code, §26.027, will not require a separate permit authorization pursuant to this chapter, for the same activities. Sewage sludge, biosolids, or water treatment residuals that are disposed of in a municipal solid waste landfill unit, as defined in 40 CFR §258.2, are not subject to the fee schedules of this chapter.</content><note type="source"><p>Source Note: The provisions of this §312.5 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scA/s312.6"><num value="312.6">§312.6</num><heading>Additional or More Stringent Requirements</heading><content>On a case-by-case basis, the commission or executive director may impose requirements for the use or disposal of sewage sludge, biosolids, domestic septage or water treatment residuals in addition to or more stringent than the requirements in this chapter when necessary to protect human health or the environment from any adverse effect from sewage sludge, biosolids, domestic septage or water treatment residuals.</content><note type="source"><p>Source Note: The provisions of this §312.6 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 Texreg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scA/s312.7"><num value="312.7">§312.7</num><heading>Sampling and Analysis</heading><content>(a) Representative samples of sewage sludge, biosolids, domestic septage, or water treatment residuals that are land applied or placed on a surface disposal site shall be collected and analyzed.(b) Representative samples of sewage sludge or biosolids fired in an incinerator shall be collected and analyzed.(c) The following methods, other methods as approved by the executive director, or the latest revision shall be used to analyze samples of sewage sludge, biosolids, water treatment residuals, or domestic septage.(1) Enteric viruses, ASTM Method D 4994-89, "Standard Practice for Recovery of Viruses From Wastewater Sludge," Annual Book of ASTM Standards: Section 11, Water and Environmental Technology, 1992.(2) Fecal coliform, Part 9221 E or Part 9222 D, "Standard Methods for the Examination of Water and Wastewater," 18th edition, American Public Health Association, Washington, D.C., 1992.(3) Helminth ova, Yanko, W.A., "Occurrence of Pathogens in Distribution and Marketing Municipal Sludges," EPA 600/1-87-014, 1987. NTIS PB 88-154273/AS, National Technical Information Service, Springfield, Virginia.(4) Inorganic pollutants, Method SW-846 in "Test Methods for Evaluating Solid Waste," United States Environmental Protection Agency, November 1986.(5) Salmonella sp. bacteria, Part 9260 D.1, "Standard Methods for the Examination of Water and Wastewater," 18th edition, American Public Health Association, Washington, D.C., 1992.(6) Specific oxygen uptake rate, Part 2710 B. "Standard Methods for the Examination of Water and Wastewater," 18th edition, American Public Health Association, Washington, D.C., 1992.(7) Total solids, fixed solids, and volatile solids, Part 2540 G, "Standard Methods for the Examination of Water and Wastewater," 18th edition, American Public Health Association, Washington, D.C., 1992.(8) Percent volatile solids reduction shall be calculated using a procedure in "Environmental Regulations and Technology--Control of Pathogens and Vectors in Sewage Sludge," EPA-625/R-92/013, U.S. Environmental Protection Agency, Cincinnati, Ohio, 1992.(9) Polychlorinated Biphenyls (PCBs), SW-846, Test Method 8082A, United States Environmental Protection Agency, current edition.</content><note type="source"><p>Source Note: The provisions of this §312.7 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scA/s312.8"><num value="312.8">§312.8</num><heading>General Definitions</heading><content>The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise. (1) 25-year, 24-hour rainfall event--The maximum rainfall event with a probable recurrence interval of once in 25 years, with a duration of 24 hours as defined by the National Weather Service in Technical Paper Number 40, Rainfall Frequency Atlas of the United States, May 1961, and subsequent amendments, or equivalent regional or state rainfall information developed from it. (2) Active disposal unit--A disposal unit that has not closed and/or is still receiving sewage sludge, biosolids, domestic septage, or water treatment residuals. (3) Aerobic digestion--The biochemical decomposition of organic matter in sewage sludge into carbon dioxide, water, and other by-products by microorganisms in the presence of free oxygen. (4) Agricultural land--Land on which a food crop, a feed crop, or a fiber crop is grown. This includes range land and land used as pasture. (5) Agricultural management unit--A portion of a land application area contained within an identifiable boundary, such as a river, fence, or road, where the area has a known crop or land use history. (6) Agronomic rate--The whole application rate (dry weight basis) designed: (A) to provide the amount of nitrogen needed by the crop or vegetation grown on the land; and (B) to minimize the amount of nitrogen that passes below the root zone of the crop or vegetation to the groundwater. (7) Anaerobic digestion--The biochemical decomposition of organic matter in sewage sludge into methane gas, carbon dioxide, and other by-products by microorganisms in the absence of free oxygen. (8) Annual metal loading rate--The maximum amount of a metal (dry weight basis) that can be applied to a land application unit during a 365-day period. (9) Annual whole application rate--The maximum amount of biosolids, domestic septage, or water treatment residuals that can be applied to a land application unit during a 365-day period. (10) Applied uniformly--Land application conducted in such a way that the agronomic rate is not exceeded anywhere in the land application unit. (11) Aquifer--A geologic formation, group of geologic formations, or a portion of a geologic formation capable of yielding groundwater to wells or springs. (12) Base flood--A flood that has a 1% chance of occurring in any given year. (13) Beneficial use--The land application of biosolids or domestic septage in a manner that complies with the requirements of Subchapter B of this chapter (relating to Land Application and Storage of Biosolids and Domestic Septage), or the land application of water treatment residuals in a manner that complies with the requirements of Subchapter F (relating to Land Application, Storage, and Disposal of Water Treatment Residuals) and does not exceed the agronomic rate for a food, fiber, feed, or turf crop, or any metal or toxic constituent limitations that the food, fiber, feed, or turf crop may have. Land application of biosolids, water treatment residuals, or domestic septage at a rate below the optimal agronomic rate will be considered a beneficial use. (14) Beneficial use site--An area of land that contains one or more land application units.(15) Biosolids--Sewage sludge that has been treated or processed to meet Class A, Class AB, or Class B pathogen standards under this chapter for beneficial use. (16) Bulk biosolids--Biosolids that are not sold or given away in a bag or other container for land application. (17) Certified nutrient management specialist--An organization in Texas or an individual who is currently certified as a nutrient management specialist through a United States Department of Agriculture-Natural Resources Conservation Service recognized certification program. (18) Class A biosolids--Biosolids meeting the metal limits in §312.43(b)(1) and (3) of this title (relating to Metal Limits) and the pathogen reduction requirements in §312.82(a)(1)(B) of this title (relating to Pathogen Reduction). (19) Class AB biosolids--Biosolids meeting the metal limits in §312.43(b)(1) and (3) of this title (relating to Metal Limits) and the pathogen reduction requirements in §312.82(a)(1)(A) of this title (relating to Pathogen Reduction). (20) Class B biosolids--Biosolids meeting the metal limits in §312.43(b)(1) of this title (relating to Metal Limits) and one of the pathogen reduction requirements in §312.82(b) of this title (relating to Pathogen Reduction). (21) Contaminate an aquifer--To introduce a substance that causes the maximum contaminant level for nitrate in 40 Code of Federal Regulations (CFR) §141.11, as amended, to be exceeded in groundwater or that causes the existing concentration of nitrate in groundwater to increase when the existing concentration of nitrate in the groundwater already exceeds the maximum contaminate level for nitrate in 40 CFR §141.11, as amended. (22) Cover--Soil or other material used to cover sewage sludge, biosolids, domestic septage, or water treatment residuals placed on an active disposal unit. (23) Cover crop--Grasses or small grain crop, such as oats, wheat, or barley, not grown for harvest. (24) Cumulative metal loading rate--The maximum amount of an inorganic pollutant (dry weight basis) that may be applied to a land application unit. (25) Debris--Solid material such as rubber, plastic, glass, or other trash that may pass through a wastewater treatment process or sewage sludge or biosolids process. Also, material that may be collected with domestic septage. This solid material is visibly distinguishable from sewage sludge, biosolids, and domestic septage. This material does not include grit or screenings removed during the preliminary treatment of domestic sewage at a treatment works, nor does it include grit trap waste.(26) Density of microorganisms--The number of microorganisms per unit mass of total solids (dry weight basis) in the sewage sludge or biosolids. (27) Displacement--The relative movement of any two sides of a fault measured in any direction. (28) Disposal--The placement of sewage sludge, biosolids, domestic septage, or water treatment residuals on the land for any purpose other than beneficial use. Disposal does not include placement onto the land where the activity has been approved by the executive director or commission as storage or temporary storage and it occurs only for the period of time expressly approved. (29) Disposal unit--Land that only sewage sludge or biosolids is placed for disposal. A sewage sludge or biosolids unit must be used for sewage sludge and biosolids. This does not include land that sewage sludge and biosolids is either stored or treated. (30) Disposal unit boundary--The outermost perimeter of a surface disposal site. (31) Domestic septage--Either liquid or solid material removed from a septic tank, cesspool, portable toilet, Type III marine sanitation device, or similar treatment works that receives only domestic sewage. Domestic septage does not include liquid or solid material removed from a septic tank, cesspool, or similar treatment works that receives either commercial wastewater or industrial wastewater and does not include grease removed from a grease trap or chemical toilet waste. (32) Domestic sewage--Waste and wastewater from humans or household operations that is discharged to a wastewater collection system or otherwise enters a treatment works. (33) Dry weight basis--Calculated based on having been dried at 105 degrees Celsius until reaching a constant mass (i.e., essentially 100% solids content). (34) Experimental use--Non-routine beneficial use land application or reclamation projects where sewage sludge or biosolids are added to the soil for research purposes, in pilot projects, feasibility studies, or similar projects. (35) Facility--Includes all contiguous land, structures, other appurtenances, and improvements on the land used for surface disposal, land application, or incineration. (36) Fault--A fracture or zone of fractures in any materials along which strata, rocks, or soils on one side are displaced with respect to strata, rocks, or soil on the other side. (37) Feed crops--Crops produced primarily for consumption by domestic livestock, such as swine, goats, cattle, horses, sheep, or poultry. (38) Fiber crops--Crops such as flax and cotton. (39) Final cover--The last layer of soil or other material placed on a sludge or biosolids unit at closure. (40) Floodway--A channel of a river or watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the surface elevation more than one foot. (41) Food crops--Crops consumed by humans. These include, but are not limited to, fruits, vegetables, and tobacco. (42) Forest--Land densely vegetated with trees and/or underbrush. (43) Grease trap waste--Material collected in and from a grease interceptor in the sanitary sewer service line of a commercial, institutional, or industrial food service or processing establishment, including the solids resulting from dewatering processes.(44) Grit trap--A unit/chamber that allows for the sedimentation of solids from an influent liquid stream by reducing the flow velocity of the influent liquid stream. In a grit trap, the inlet and the outlet are both located at the same vertical level, at, or very near, the top of the unit/chamber; the outlet of the grit trap is connected to a sanitary sewer system. A grit trap is not designed to separate oil and water. (45) Grit trap waste--Waste collected in a grit trap. Grit trap waste includes waste from grit traps placed in the drains prior to entering the sewer system at maintenance and repair shops, automobile service stations, car washes, laundries, and other similar establishments. The term does not include material collected in an oil/water separator or in any other similar waste management unit designed to collect oil. (46) Groundwater--Water below the land surface in the saturated zone. (47) Harvesting--Removal of a food, fiber, feed or turf crop from a land application unit by the means of cutting, picking, drying, baling, or gathering. The act of cutting and leaving vegetative material on the land application unit is not considered harvesting.(48) Holocene time--The most recent epoch of the Quaternary period, extending from the end of the Pleistocene Epoch to the present. Holocene time began approximately 10,000 years ago. (49) Incinerator--An apparatus for burning sewage sludge or biosolids at high temperatures until it is reduced to ash. (50) Incorporation--Mixing the applied material evenly through the top three inches of soil. (51) Industrial wastewater--Wastewater generated in a commercial or industrial process. (52) Institution--An established organization or corporation, especially of a public nature or where the public has access, such as child care facilities, public buildings, or health care facilities. (53) Irrigation conveyance canal--A canal that is constructed to convey water from the source of supply to one or more farms.(54) Lagoon--A surface impoundment that is authorized under a permit issued by the commission for the storage of sewage sludge or biosolids. Any other type of impoundment must be considered an active disposal unit.(55) Land application or land apply or land applied--The spraying or spreading of biosolids, domestic septage, or water treatment residuals onto the land surface; the injection of biosolids, domestic septage, or water treatment residuals below the land surface; or the incorporation of biosolids, domestic septage, or water treatment residuals into the soil to either condition the soil or fertilize crops or vegetation grown in the soil. (56) Land application unit--An area where materials are applied onto or incorporated into the soil surface for beneficial use or for treatment and disposal, where the disposal occurs within five feet of the surface of the land. The term does not include manure spreading operations.(57) Land with a high potential for public exposure--Land that the public uses frequently and/or is not provided with a means of restricting public access. (58) Land with a low potential for public exposure--Land that the public uses infrequently and/or is provided with a means of restricting public access. (59) Leachate collection system--A system or device installed immediately above a liner that is designed, constructed, maintained, and operated to collect and remove leachate from a disposal unit. (60) Licensed professional geoscientist--A geoscientist who maintains a current license through the Texas Board of Professional Geoscientists in accordance with its requirements for professional practice. (61) Liner--Soil or synthetic material that has a hydraulic conductivity of 1 x 10-7 centimeters per second or less. Soil liners must be of suitable material with more than 30% passing a number 200 sieve, have a liquid limit greater than 30%, a plasticity index greater than 15, compaction of greater than 95% Standard Proctor at optimum moisture content, and will be at least two feet thick placed in six-inch lifts. Synthetic liners must be a membrane with a minimum thickness of 20 mils and include an underdrain leak detection system. (62) Lower explosive limit for methane gas--The lowest percentage of methane in air, by volume, that propagates a flame at 25 degrees Celsius and atmospheric pressure. (63) Major sole-source impairment zone--A watershed that contains a reservoir that is used by a municipality as a sole source of drinking water supply for a population of more than 140,000, inside and outside of its municipal boundaries; and into which at least half of the water flowing is from a source that, on September 1, 2001, is on the list of impaired state waters adopted by the commission as required by 33 United States Code, §1313(d), as amended, at least in part because of concerns regarding pathogens and phosphorus, and for which the commission at some time prepared and submitted a total maximum daily load standard. (64) Metal limit--A numerical value that describes the amount of a metal allowed per unit amount of sewage sludge, biosolids, or water treatment residuals (e.g., milligrams per kilogram of total solids); the amount of a metal that can be applied to or disposed onto a land application unit (e.g., kilograms per hectare); or the volume of a material that can be applied to a land application unit (e.g., gallons per acre). (65) Monofill--A landfill or landfill trench in which sewage sludge, biosolids, or water treatment residuals are the only type of solid waste placed. (66) Municipality--A city, town, county, district, association, or other public body (including an intermunicipal agency of two or more of the foregoing entities) created by or under state law; an Indian tribe or an authorized Indian tribal organization having jurisdiction over sewage sludge or biosolids management; or a designated and approved management agency under federal Clean Water Act, §208, as amended. The definition includes a special district created under state law, such as a water district, sewer district, sanitary district, or an integrated waste management facility as defined in federal Clean Water Act, §201(e), as amended, that has as one of its principal responsibilities the treatment, transport, use, or disposal of sewage sludge or biosolids. (67) Off-site--Property that cannot be characterized as "on-site." (68) On-site--The same or contiguous property owned, controlled, or supervised by the same person. If the property is divided by public or private right-of-way, the access must be by crossing the right-of-way or the right-of-way must be under the control of the person. (69) Operator--The person responsible for the overall operation of a facility, land application unit, or surface disposal site. (70) Other container--Either an open or closed receptacle, including, but not limited to, a bucket, box, or a vehicle or trailer with a load capacity of one metric ton (2,200 pounds) or less. (71) Owner--The person who owns a facility or part of a facility. (72) Pasture--Land that animals feed directly on for feed crops such as legumes, grasses, grain stubble, forbs, or stover. (73) Pathogenic organisms--Disease-causing organisms including, but not limited to, certain bacteria, protozoa, viruses, and viable helminth ova. (74) Person who prepares sewage sludge or biosolids--Either the person who generates sewage sludge or biosolids during the treatment of domestic sewage in a treatment works or the person who derives a material from sewage sludge or biosolids. (75) Place or placed sewage sludge or biosolids--Disposal of sewage sludge or biosolids on a surface disposal site. (76) Pollutant--An organic or inorganic substance, or a pathogenic organism that, after discharge and upon exposure, ingestion, inhalation, or assimilation into an organism either directly from the environment or indirectly by ingestion through the food chain, could, on the basis of information available to the executive director, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunction in reproduction), or physical deformations in either organisms or offspring of the organisms. (77) Precipitation--Deposit on the land of rain, mist, hail, sleet, or snow that falls on the ground under the action of gravitational force.(78) Process or processing--For the purposes of this chapter, these terms shall have the same meaning as "treat" or "treatment." (79) Public contact site--Land with a high potential for contact by the public. This includes, but is not limited to, public parks, ball fields, cemeteries, plant nurseries, turf farms, and/or golf courses. (80) Range land--Open land with indigenous vegetation. (81) Reclamation site--Drastically disturbed land that is reclaimed using sewage sludge, biosolids, or water treatment residuals. This includes, but is not limited to, strip mines, borrow areas, and\or construction sites. (82) Runoff--Rainwater, leachate, or other liquid that drains overland on any part of a land surface and runs off of the land surface. (83) Seismic impact zone--An area that has a 10% or greater probability that the horizontal ground level acceleration of the rock in the area exceeds 0.10 gravity once in 250 years. (84) Sewage sludge--Solid, semi-solid, or liquid residue generated during the treatment of domestic sewage in treatment works. Sewage sludge includes, but is not limited to, domestic septage, scum, or solids removed in primary, secondary, or advanced wastewater treatment processes; and material derived from sewage sludge. Sewage sludge does not include ash or grit and screenings generated during preliminary treatment of domestic sewage in a treatment works.(85) Sole-source surface drinking water supply--A body of surface water that is identified as a public water supply in §307.10 of this title (relating to Appendices A - G) and is the sole source of supply of a public water supply system, exclusive of emergency water connections. (86) Source-separated organic material--As defined in §332.2 of this title (relating to Definitions). (87) Specific oxygen uptake rate--The mass of oxygen consumed per unit time per unit mass of total solids (dry weight basis). (88) Stabilization--Biological or chemical treatment processes that minimize subsequent complications due to biodegradation of organic compounds, biologically by reducing organic content and chemically by retarding the degradation of organic materials. (89) Staging--Temporary holding of sewage sludge, biosolids, domestic septage, or water treatment residuals, at a land application unit, for up to a maximum of seven calendar days per each staging location, prior to land application. (90) Store or storage--The placement of sewage sludge, biosolids, domestic septage, or water treatment residuals on land or in an enclosed vessel for longer than seven days. (91) Surface disposal site--An area of land that contains one or more active disposal units.(92) Surface impoundment--A facility or part of a facility that is a natural topographic depression, human-made excavation, or diked area formed primarily of earthen materials (although it may be lined with man-made materials), that is designed to hold an accumulation of liquid wastes or wastes containing free liquids, and that is not an injection well. Examples of surface impoundments include: holding, storage, settling, and aeration pits, ponds, and lagoons.(93) Temporary storage--Storage of waste regulated under this chapter by a transporter, which has been approved in writing by the executive director, in accordance with §312.147 of this title (relating to Temporary Storage). (94) Three hundred-sixty-five-day period--A running total that covers the period between land application to a site and the nutrient uptake of the feed, food, fiber, or turf crop. (95) Total solids--The amount of solids in a material that remain as residue when the material is dried at 103 degrees Celsius to 105 degrees Celsius. (96) Transporter--Any person who collects, conveys, or transports sewage sludge, biosolids, water treatment residuals, grit trap waste, grease trap waste, chemical toilet waste, or domestic septage by roadway, ship, rail, or other means. (97) Treat or treatment--The preparation of sewage sludge, biosolids, domestic septage, or water treatment residuals for final use or disposal. This includes, but is not limited to, thickening, stabilization, initial alkali addition for pathogen or vector control, and dewatering. This term does not include storage of sewage sludge, biosolids, domestic septage, or water treatment residuals, or subsequent alkali addition for pathogen or vector control. (98) Treatment works--Either a federally owned, publicly owned, or privately-owned device or system used to treat (including recycle and reclaim) either domestic sewage or a combination of domestic sewage and industrial waste of a liquid nature, located at an authorized wastewater treatment plant. (99) Turf crop--Grass and the surface layer of earth held together by its roots that is grown and harvested as sod, sprigs, or plugs, primarily for the establishment of lawns. (100) Unstabilized solids--Organic materials in sewage sludge or biosolids that have not been treated in either an aerobic or anaerobic treatment process. (101) Unstable area--Land subject to natural or human induced forces that may damage the structural components of an active disposal unit or land application unit. This includes, but is not limited to, land that the soils are subject to mass movement. (102) Vector attraction--The characteristic of sewage sludge, biosolids, and domestic septage that attracts rodents, flies, mosquitoes, or other organisms capable of transporting infectious agents. (103) Volatile solids--The amount of the total solids in a material that is lost when the material is combusted at 550 degrees Celsius in the presence of excess oxygen. (104) Waste pile--Any noncontainerized accumulation of solid, nonflowing waste that is used for treatment or storage.(105) Water treatment residuals--Material generated during the treatment of either surface water or groundwater for potable use, which is not an industrial solid waste as defined in §335.1 of this title (relating to Definitions). (106) Wetlands--Those areas that are inundated or saturated by surface water or groundwater at a frequency and duration to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.</content><note type="source"><p>Source Note: The provisions of this §312.8 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective September 1, 2003, 28 TexReg 6300; amended to be effective October 2, 2003, 28 TexReg 8346; amended to be effective October 20, 2005, 30 TexReg 6743; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scA/s312.9"><num value="312.9">§312.9</num><heading>Fee Program</heading><content>(a) The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise.(1) Annual fee--A fee charged to each person holding a registration or permit under the commission's authority in Texas Health and Safety Code, Chapter 361, or a permit issued under the commission's authority in Texas Water Code, Chapter 26, except that a fee will not be assessed under this chapter as specified in §312.5 of this title (relating to Relationship to Other Requirements).(2) Reported--Information compiled and submitted to the executive director that tracks the amount of waste being stored, treated, processed, transported, or disposed of in the state; tracks the amount of processing, transporting, and disposal capacity and reserve capacity; and enables equitable assessment and collection of fees.(3) Payment--Receipt by the executive director of the full amount of the annual fee(s) due.(b) Except as provided in subsection (f) of this section, the amount of the annual fee that is assessed is determined by weight of solids disposed of and reported to the executive director as of September 30th of each year (reporting period September 1st of previous year to August 31st of current year). Failure to report this information does not exempt a registrant or permittee from this fee. The fees are as follows.(1) The minimum fee assessed against each registration or permit is $100, regardless of whether the site is active or inactive.(2) When water treatment residuals are mixed with a Class B biosolids or when Class B biosolids are land applied, the fee is $0.75 per dry ton.(3) When biosolids are applied to a site for disposal or when water treatment residuals are applied to a site for disposal and the activity requires a permit as specified in Subchapter F of this chapter (relating to Land Application, Storage, and Disposal of Water Treatment Residuals), the fee is $1.25 per ton.(4) When water treatment residuals are applied to a site for beneficial use or disposal and the activity does not require a permit as specified in Subchapter F of this chapter, the fee is $0.20 per dry ton.(5) When sewage sludge or biosolids are fired in an incinerator, the fee is $1.25 per dry ton.(c) An annual transporter fee is assessed against each person or entity holding a registration to transport sewage sludge, biosolids, water treatment residuals, domestic septage, chemical toilet waste, grease trap waste, or grit trap waste issued in accordance with Subchapter G of this chapter (relating to Transporters and Temporary Storage Provisions). The amount of the annual fee must be based upon the total annual volume of waste transported by the transporter under each registration and reported to the executive director as of June 15th, each year. Failure to report the transportation of waste does not exempt a registrant from this fee. The fees are as follows.(1) For a total annual volume transported of 10,000 gallons (50 cubic yards) or less, the fee is $100.(2) For a total annual volume transported greater than 10,000 gallons (50 cubic yards) but equal to or less than 50,000 (250 cubic yards), the fee is $250.(3) For a total annual volume transported greater than 50,000 gallons (250 cubic yards) but equal to or less than 200,000 gallons (1,000 cubic yards), the fee is $400.(4) For a total annual volume transported of greater than 200,000 gallons (1,000 cubic yards), the fee is $500.(d) Permit and registration holders shall submit annual reports in accordance with §312.48(1) of this title (relating to Reporting) no later than September 30th of each calendar year, for a reporting period covering September 1st of the previous calendar year to August 31st of the current calendar year. Fees assessed in subsection (b) of this section must be paid by the registrant or permittee on or before the due date specified in the invoice each year. Fees assessed in subsection (c) of this section must be paid by the registrant after billing by the executive director, prior to September 1st, of each year. Fees must be paid by check, certified check, or money order payable to the Texas Commission on Environmental Quality. The permittee or registrant of a facility failing to make payment of the fees imposed under this subchapter when due shall be assessed penalties and interest in accordance with Chapter 12 of this title (relating to Payment of Fees).(e) Failure of the registrant or permittee to submit the required fee within 30 days of billing, shall be sufficient cause for the commission to revoke the registration or permit and authorization to process or dispose of waste. Any entity to whom a registration or permit is transferred shall be liable for payment of the annual fee on the same basis as the transferor.(f) No fee will be assessed for sewage sludge, biosolids, or water treatment residuals composted with source-separated organic material at a composting facility, including a composting facility located at a permitted landfill site. This subsection does not apply if the biosolids or residuals are not used as compost and are deposited in a surface disposal site or landfill.(g) Applicants shall submit permit application fees for Class B biosolids permit applications.(1) Any person who applies for a new permit, permit renewal, or permit amendment shall pay a permit application fee. The fees in this subsection relating to application for a permit, permit renewal, or major amendment supersede the fees in §305.53 of this title (relating to Application Fee). An application for a minor amendment or permit transfer must be submitted in accordance with §305.53 of this title. The commission may not consider an application for final decision until such time as the permit application fee is paid. All permit application fees must be made payable to the commission and paid at the time the application for a permit is submitted.(2) The executive director may not process an application until all delinquent annual fees and delinquent administrative penalties owed the commission by the applicant or for the site as delineated in the permit application are paid in full. Any permittee to whom a permit is transferred shall be liable for payment of the annual fees assessed for the permitted entity/site on the same basis as the transferor of the permit, as well as any outstanding fees and associated penalties owed the commission. If the applicant is not the permittee at the time fees become delinquent or against whom administrative penalties are assessed, the executive director may for good cause waive the applicant's liability under this subsection for payment of delinquent annual fees or delinquent administrative penalties.(3) An applicant may file a written request for a refund in the amount of 50% of the permit application fee paid if the permit is not issued. No fees will be refunded after a new permit, permit renewal, permit modification, permit amendment, or permit transfer has been issued by the commission. Transfer of a permit will not entitle the transferor permittee to a refund, in whole or part, of any fee already paid by that permittee.(4) The permit application fees will be between $1,000 and $5,000, based on the quantity of biosolids to be applied annually under the permit, as shown in the following schedule:(A) $1,000, if the quantity is 2,000 dry tons or less;(B) $2,000, if the quantity is greater than 2,000 dry tons but less than or equal to 5,000 dry tons;(C) $3,000, if the quantity is greater than 5,000 dry tons but less than or equal to 10,000 dry tons;(D) $4,000, if the quantity is greater than 10,000 dry tons but less than or equal to 20,000 dry tons; or(E) $5,000, if the quantity is greater than 20,000 dry tons.</content><note type="source"><p>Source Note: The provisions of this §312.9 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective February 14, 1997, 22 TexReg 1326; amended to be effective August 17, 2000, 25 TexReg 7774; amended to be effective October 20, 2005, 30 TexReg 6743; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scA/s312.10"><num value="312.10">§312.10</num><heading>Permit and Registration Applications Processing</heading><content>(a) Applications for permits, registrations, or other types of approvals required by this subchapter shall be reviewed by staff for administrative completeness within 14 calendar days of receipt of the application by the executive director.(b) Permit and registration applications must include all information required by §312.11 of this title (relating to Permits), §312.12 of this title (relating to Registrations), or §312.142 of this title (relating to Transporter Registration).(c) Upon receipt of an application for a permit or registration, excluding transportation registrations, the executive director shall assign the application a number for identification purposes, and prepare a Notice of Receipt of Application and Declaration of Administrative Completeness for domestic septage registrations or Notice of Receipt of Application and Intent to Obtain Permit for permits where applicable, which is suitable for publishing or mailing, and forward that notice to the Office of the Chief Clerk. The Office of the Chief Clerk shall notify every person entitled to notification of a particular application as described in §312.13 of this title (relating to Actions and Notice).(d) The Notice of Receipt of Application and Declaration of Administrative Completeness for domestic septage registrations or Notice of Receipt of Application and Intent to Obtain Permit for permit where applicable, must contain the information required by Chapter 39 of this title (relating to Public Notice), Texas Water Code, §5.552(c), and the approximate anticipated date of the first land application of Class B biosolids to the proposed land application unit.(e) For land application, processing, disposal, storage, or incineration permits or sewage sludge, biosolids, or water treatment residuals permit applications and draft permits, nothing in this section shall be construed so as to waive the notice and processing requirements in accordance with Chapter 39, Subchapters H and J of this title (relating to Applicability and General Provisions and Public Notice of Water Quality Applications and Water Quality Management Plans), Chapter 50, Subchapters E - G of this title (relating to Purpose, Applicability, and Definitions; Action by the Commission; and Action by the Executive Director), Chapter 55, Subchapters D - F of this title (relating to Applicability and Definitions; Public Comment and Public Meetings; and Requests for Reconsideration or Contested Case Hearing), or Chapter 305, Subchapters C, D, and F of this title (relating to Application for Permit or Post-Closure Order; Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits; and Permit Characteristics and Conditions).(f) All permit applications for land application, processing, disposal, storage, or incineration of sewage sludge, biosolids, or water treatment residuals are subject to the application processing procedures and requirements in §§281.18 - 281.24 of this title (relating to Applications Returned; Technical Review; Extension; Draft Permit, Technical Summary, Fact Sheet, and Compliance History; Referral to Commission; Application Amendment; and Effect of Rules).(g) All registration applications for Class A biosolids, Class AB biosolids, water treatment residuals, and domestic septage are subject to the application processing procedures and requirements in §§281.18 - 281.20 of this title.(h) A registration or permit will be cancelled upon receipt of a written request for cancellation from either the site operator or landowner. The executive director will provide notice to the other party that cancellation has been requested and that cancellation will occur ten days from the issuance of notice. This notice is provided merely as a courtesy by the executive director and is not mandatory for cancellation.(i) To transfer a registration or permit, both the site operator and the landowner must sign the transfer application. An application for transfer that is not signed by both the site operator and the landowner will be considered a request for cancellation.(j) If a registration or permit for a site is cancelled, a complete application for registration or permit must be submitted in order to reauthorize the site. If the application is approved, the site will be authorized under the same site registration or permit number.(k) For permits, a major amendment is defined in Chapter 305, Subchapter D of this title. For purposes of this chapter concerning registrations and except as provided in subsection (l) of this section, a major amendment for a registration is an amendment that changes a substantive term, provision, requirement, or a limiting parameter of a registration or a substantive change in the information provided in an application for registration. Changes to registrations that are not considered major include, but are not limited to, typographical errors, changes that result in more stringent monitoring requirements, changes in site ownership, changes in site operator, or similar administrative information.(l) Upon the effective date of this chapter, the executive director will process as a minor amendment a request by an existing permittee or registrant to change any substantive term, provision, requirement, or a limiting parameter in a permit or registration that implemented prior regulations of the commission, when it is no longer a requirement of this chapter. Notice requirements of §312.13 of this title are not applicable to a minor amendment for a registration.(m) Term limits for registrations or permits may not exceed five years.</content><note type="source"><p>Source Note: The provisions of this §312.10 adopted to be effective August 29, 2002, 27 TexReg 7958; amended to be effective October 20, 2005, 30 TexReg 6743; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scA/s312.11"><num value="312.11">§312.11</num><heading>Permits</heading><content>(a) The provisions of this section set the standards and requirements for permit applications Any information provided under this subsection must be submitted in quadruplicate form. A permit is required to:(1) land apply Class B biosolids;(2) process (at a treatment works), store, dispose of, or incinerate sewage sludge;(3) process (at a treatment works), store, dispose of, or incinerate biosolids; or(4) disposal of water treatment residuals in a monofill.(b) Any person who is required to obtain or who requests a new permit or an amendment, modification, or renewal of a permit under this section is subject to the permit application procedures of §1.5(d) of this title (relating to Records of the Agency), §305.42(a) of this title (relating to Application Required), §305.43 of this title (relating to Who Applies), §305.44 of this title (relating to Signatories to Applications), §305.45 of this title (relating to Contents of Application for Permit), and §305.47 of this title (relating to Retention of Application Data). For a land application permit, the applicant must be:(1) the owner of the application site, if the biosolids were generated outside this state; or(2) the site operator, if the biosolids were generated in this state.(c) A permit application must include all information in accordance with Chapter 281, Subchapter A of this title (relating to Applications Processing) and Chapter 305, Subchapter C of this title (relating to Application for Permit or Post-Closure Order), and must also include the following:(1) the map required by §305.45(a)(6) of this title that provides the following information:(A) the approximate boundaries of the site to be permitted, which must include all contiguous properties owned by or under the control of the applicant;(B) the name and mailing address of the owner of each tract of land located:(i) within 1/4 mile of the land application unit, as such information can be determined from the current county tax rolls or other reliable sources, at the time the application is filed for a Class B biosolids land application permit;(ii) within 1/2 mile of a disposal unit or incinerator, as such information can be determined from the current county tax rolls or other reliable sources, at the time the application is filed for an incineration or disposal permit; and(iii) adjacent to the site to be permitted, as such information can be determined from the current county tax rolls or other reliable sources, at the time the application is filed for a biosolids or sewage sludge processing or storage facility;(C) the source(s) of the information for the surrounding property owners; and(D) the list of property owners. The list must be provided both as a hard copy, either on the map or as an attached list, and in electronic format or on four sets of self-adhesive mailing labels; and(2) a notarized affidavit from the applicant(s) verifying land ownership of the permitted site or landowner agreement to the proposed activity.(d) A permit application for land application of Class B biosolids must also include the following information:(1) the information listed in §312.12(a)(1)(A) - (C) of this title (relating to Registrations);(2) analytical results establishing the background soil concentration of metals regulated by this chapter in each land application unit, based on the following:(A) samples taken from the zero to six-inch zone of soil;(B) soil samples that accurately show soil conditions in the application area(s) and that are taken at a spatial distribution of at least one composite sample per every 80 acres or less of soil type or area being sampled;(C) composite samples comprised of ten to 15 samples taken from points randomly distributed across the entire soil type or area(s) being sampled;(D) a separate composite sample taken from each United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) soil type (soils with the same characterization or texture), unless an alternate method is used; and(E) when using an alternate method for defining areas to be sampled such as sampling by agricultural management units or other defined areas, a sampling plan included in the application, which sufficiently establishes background soil conditions through proportionate sampling of each USDA NRCS soil type in each area sampled;(3) analytical results establishing the background soil concentration of nutrients, salinity, and pH in each land application unit, based on the following:(A) separate samples taken from the zero to six-inch and from the six to 24-inch zones of soil;(B) soil samples that accurately show soil conditions in the land application unit and that are taken at a spatial distribution of at least one composite sample per every 80 acres or less of soil type or area being sampled;(C) composite samples comprised of ten to 15 samples taken from points randomly distributed across the entire soil type or area(s) being sampled;(D) a separate composite sample taken from each USDA NRCS soil type (soils with the same characterization or texture), unless an alternate method is used;(E) when using an alternate method for defining areas to be sampled such as sampling by agricultural management units or other defined areas, a sampling plan also included in the application, which sufficiently establishes background soil conditions through proportionate sampling of each USDA NRCS soil type in each area sampled;(4) information necessary to identify the hydrological characteristics of the surface water and groundwater within 1/4 mile of the land application unit;(5) except for applications by political subdivisions, proof of a commercial liability insurance policy and an environmental impairment policy or a similar policy in accordance with Chapter 37, Subchapter V of this title (relating to Financial Assurance for Class B Sewage Sludge for Land Application Units); and(6) proof that the applicant has minimized the risk of water quality impairment caused by nitrogen applied to the land application unit through the application of Class B biosolids by having had a nutrient management plan prepared by a certified nutrient management specialist in accordance with the NRCS Practice Standard Code 590.(e) A permittee of a Class B biosolids land application unit shall comply with the requirements of Chapter 37, Subchapter V of this title.(f) Any person who is issued a permit under this section is subject to the permit characteristics and standards set forth in §305.122 of this title (relating to Characteristics of Permits), §305.123 of this title (relating to Reservation in Granting Permit), §305.124 of this title (relating to Acceptance of Permit, Effect), §305.125 of this title (relating to Standard Permit Conditions), §305.126 of this title (relating to Additional Standard Permit Conditions for Waste Discharge Permits), §305.127 of this title (relating to Conditions to be Determined for Individual Permits), §305.128 of this title (relating to Signatories to Reports), and §305.129 of this title (relating to Variance Procedures).(g) If any provision of a permit is violated during its term, the permittee is required to report to the executive director the noncompliance in accordance with Texas Health and Safety Code, §361.121(d)(5) and §305.125(9) of this title. Each permit for the land application of Class B biosolids must contain a provision requiring such reporting. Report of such information must be provided orally or by facsimile transmission (fax) to the appropriate regional office within 24 hours of the permittee becoming aware of the noncompliance. A written submission of such information must also be provided by the permittee to the regional office and to the Enforcement Division at the commission's Central Office (Mail Code 224) within five working days of becoming aware of the noncompliance. The written submission must contain the following information:(1) a description of the noncompliance and its cause;(2) the potential danger to human health, safety, or the environment;(3) the period of noncompliance, including exact dates and times;(4) if the noncompliance has not been corrected, the anticipated time it is expected to continue; and(5) steps taken or planned to reduce, eliminate, and prevent recurrence of the noncompliance, and to mitigate its adverse effects.(h) Each biosolids land application permit must include a reference to the maximum quantity of biosolids that may be land applied under the permit.(i) Any permittee who requests a new permit or an amendment, modification, or renewal of a permit under this section is subject to the standards and requirements for applications and actions concerning amendments, modifications, renewals, transfers, corrections, revocations, denials, and suspensions of permits, as set forth in §305.62 of this title (relating to Amendments), §305.63 of this title (relating to Renewal), §305.64 of this title (relating to Transfer of Permits), §305.65 of this title (relating to Renewal), §305.66 of this title (relating to Permit Denial, Suspension, and Revocation), §305.67 of this title (relating to Revocation and Suspension upon Request or Consent), and §305.68 of this title (relating to Action and Notice on Petition for Revocation or Suspension).(j) The permittee shall immediately provide written notice to the executive director of any changes to a permit or to information on soil or subsurface conditions at the site, and provide any additional information concerning changes in land ownership, site control, operator, waste composition, source of biosolids, or waste management methods.(k) For land application units located in a major sole-source impairment zone, the permittee is subject to the following provisions.(1) The operator shall have a nutrient management plan (nitrogen and phosphorus) prepared by a certified nutrient management specialist in accordance with the USDA NRCS Practice Standard Code 590;(2) When results of the annual soil analysis for extractable phosphorus indicate a level greater than 200 parts per million of extractable phosphorus (reported as P) in the zero to six-inch sample for a particular land application unit or if ordered by the commission in order to protect the quality of water in the state, then the operator may not apply any biosolids to the affected area unless the land application is implemented in accordance with a detailed nutrient utilization plan (NUP) that has been approved by the commission.(3) A NUP is equivalent to the NRCS Nutrient Management Plan Practice Standard Code 590. The nutrient management plan, based on crop removal, must be developed and certified by one of the following individuals or entities:(A) an employee of the NRCS;(B) a nutrient management specialist certified by the NRCS;(C) the Texas State Soil and Water Conservation Board;(D) Texas Cooperative Extension;(E) an agronomist or soil scientist on full-time staff at an accredited university located in the State of Texas;(F) a professional agronomist certified by the American Society of Agronomy;(G) a certified professional soil scientist certified by the Soil Science Society of America; or(H) a licensed Texas geoscientist-soil scientist, after approval by the executive director based on a determination by the executive director that another person or entity identified in this paragraph cannot develop the plan in a timely manner.(4) After a NUP is implemented, the operator shall land apply in accordance with the NUP until soil phosphorus is reduced below 200 parts per million in the zero to six-inch sample. Thereafter, the operator shall implement the requirements of the nutrient management plan.(5) The buffer zones must be maintained according to the applicable requirements specified in §312.44(c) of this title (relating to Management Practices).</content><note type="source"><p>Source Note: The provisions of this §312.11 adopted to be effective August 29, 2002, 27 TexReg 7958; amended to be effective October 20, 2005, 30 TexReg 6743; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scA/s312.12"><num value="312.12">§312.12</num><heading>Registrations</heading><content>(a) Except as provided in §312.4(b) of this title (relating to Required Authorizations or Notifications), an applicant for a registration to land apply Class A biosolids, Class AB biosolids, water treatment residuals, and domestic septage shall:(1) submit to the executive director an original, completed application form approved by the executive director, along with the appropriate number of copies of the registration application. Each applicant shall submit to the executive director such information as may reasonably be required to enable the executive director to determine whether such land application for beneficial use activities are compliant with the terms of this chapter. Such information may include, but is not limited to, the following:(A) a description and composition of the material to be land applied;(B) a description of all processes generating the material to be land applied at the site;(C) information about the site and the planned management of the material to be land applied, including the name, address, and telephone number of any landowner or operator at the site and the following information:(i) whether such material is managed on site and/or off site from its point of generation;(ii) a description of each on-site land application unit, including the name, address, and telephone number of all landowners, or the same information from a landowner acting as a spokesperson(s) for all the landowners, so long as the spokesperson submits to the executive director a sworn statement allowing the spokesperson to act for other persons;(iii) a listing of the types of material to be land applied on each land application unit;(iv) a detailed description of the beneficial use occurring at each land application unit where application of Class A or Class AB biosolids, water treatment residuals, and domestic septage is proposed, including proposed waste management and crop production methods; and(v) information regarding soil characteristics and subsurface conditions where the land application unit will be located;(D) the verified legal status of the applicant(s), as applicable;(E) the notarized signature of each applicant, in accordance with §305.44 of this title (relating to Signatories to Applications);(F) a notarized affidavit from the applicant(s) verifying land ownership or landowner agreement to the proposed activity;(G) technical reports and supporting data required by the application;(H) for applications for major amendments or new registrations, information concerning surrounding landowners, including the following, as applicable:(i) a map depicting the approximate boundaries of the tract of land owned or under the control of the applicant and each residential or business address and owner of all the tracts of land bordering the perimeter of any portion of the site;(ii) a list on or attached to the map of the names and addresses of the owners of such tracts of land as can be determined from the current county tax rolls at the time the application is filed, and other reliable sources. The list of property owners must be provided in both hard copy and either in electronic format or on four sets of self-adhesive mailing labels; and(iii) the source of the information;(I) analytical results establishing the background soil concentration of metals regulated by this chapter in each land application unit, as applicable, based on the following:(i) samples taken from the zero to six-inch zone of soil;(ii) soil samples that accurately show soil conditions in each land application unit and that are taken at a spatial distribution of at least one composite sample per every 80 acres or less of soil type or area being sampled;(iii) composite samples comprised of ten to 15 samples taken from points randomly distributed across the entire soil type or area(s) being sampled;(iv) a separate composite sample taken from each United States Department of Agriculture (USDA) Natural Resource Conservation Service (NRCS) soil type (soils with the same characterization or texture), unless an alternate method is used;(v) when using an alternate method for defining areas to be sampled such as sampling by agricultural management units or other defined areas, a sampling plan also included in the application, which sufficiently establishes background soil conditions through proportionate sampling of each USDA NRCS soil type in each area sampled;(J) analytical results establishing the background soil concentration of nutrients, salinity, and pH in each land application unit, as applicable, based on the following:(i) separate samples taken from the zero to six-inch and from the six to 24-inch zones of soil;(ii) soil samples that accurately show soil conditions in each land application unit and that are taken at a spatial distribution of at least one composite sample per every 80 acres or less of soil type or area being sampled;(iii) composite samples comprised of ten to 15 samples taken from points randomly distributed across the entire soil type or area(s) being sampled;(iv) a separate composite sample taken from each USDA NRCS soil type (soils with the same characterization or texture), unless an alternate method is used;(v) when using an alternate method for defining areas to be sampled such as sampling by agricultural management units or other defined areas, a sampling plan also included in the application, which sufficiently establishes background soil conditions through proportionate sampling of each USDA NRCS soil type in each area sampled;(K) any information provided under this paragraph submitted to the executive director in quadruplicate form;(2) immediately provide written notice to the executive director of any changes, requests for an amendment, modification, or renewal of a registration, or any additional information concerning changes in land ownership, changes in site control, or operator, changes in waste composition, changes in the source of biosolids or water treatment residuals, or waste management methods, and information regarding soils and subsurface conditions where the operation is to be located. Any information provided under this paragraph must be submitted to the executive director in duplicate form.(b) The executive director shall determine, after review of any application, whether to approve or deny an application in whole or in part, deny with prejudice, suspend the authority to conduct an activity for a specified period of time, or amend or modify the proposed activity requested by the applicant. The determination of the executive director shall include review and action on any new applications or changes, renewals, and requests for major amendment of any existing application. In consideration of such an application, the executive director shall consider all relevant requirements of this chapter and consider all information pertaining to those requirements received by the executive director regarding the application. The written determination on any application, including any authorization granted, shall be mailed to the applicant upon the decision of the executive director.(c) At the same time that the executive director's decision is mailed to the applicant, notice of this decision must also be mailed to all parties who submitted written information on the application, as described in §312.13(c)(2) and (3) of this title (relating to Actions and Notice).(d) For registered land application units located in a major sole-source impairment zone, the registrant must comply with the provisions listed in §312.11(k) of this title (relating to Permits).</content><note type="source"><p>Source Note: The provisions of this §312.12 adopted to be effective August 29, 2002, 27 TexReg 7958; amended to be effective October 20, 2005, 30 TexReg 6743; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scA/s312.13"><num value="312.13">§312.13</num><heading>Actions and Notice</heading><content>(a) Applicability. This section sets forth the way in which action will be taken on applications filed with the executive director for either a permit or a registration to land apply, store, process, dispose of, or incinerate sewage sludge, biosolids, water treatment residuals, or domestic septage.(b) Permit actions.(1) All permit applications are subject to the standards and requirements as set forth in Chapter 39, Subchapters H - J of this title (relating to Applicability and General Provisions; Public Notice of Solid Waste Applications; and Public Notice of Water Quality Applications and Water Quality Management Plans), Chapter 50, Subchapters E - G of this title (relating to Purpose, Applicability, and Definitions; Action by the Commission; and Action by the Executive Director), and Chapter 55, Subchapters D - F of this title (relating to Applicability and Definitions; Public Comment and Public Meetings; and Requests for Reconsideration or Contested Case Hearing).(2) For disposal and incineration permit applications, notice must be provided to all owners of properties within 1/2 mile of the border of any portion of the tract of land where the permitted activities would occur. For beneficial use (excluding Class B biosolids), processing, and storage permit applications, notice must be provided to all owners of properties adjacent to any portion of the tract of land where the permitted activities will occur. The tract of land includes all contiguous properties under the ownership or control of the applicant.(3) For Class B biosolids beneficial land use permit applications:(A) notice must be provided under Chapter 39 of this title (relating to Public Notice) and under Texas Water Code, §5.552. The notice must also contain the anticipated date of the first land application of biosolids to the proposed land application unit. An applicant for a new permit, permit amendment, or permit renewal under Texas Health and Safety Code, §361.121(c), shall notify by registered or certified mail each owner of land located within 1/4 mile of the proposed land application unit who lives on that land; and(B) an owner of the land located within 1/4 mile of the proposed land application unit who lives on the land is considered an "affected person" for purposes of Texas Water Code, §5.115, and Chapter 55 of this title (relating to Requests for Reconsideration and Contested Case Hearings; Public Comment). Individuals who do not own land within 1/4 mile of the proposed land application unit are not excluded from being considered "affected persons" under §55.203 of this title (relating to Determination of Affected Person).(c) Registration actions.(1) The public notice requirements of this subsection apply to new applications for a registration, and to applications for major amendment of a registration. The requirements of this subsection do not apply to sites where only Class A or Class AB biosolids that has been authorized for marketing and distribution are to be land applied for beneficial use or registrations for beneficial land use or disposal of water treatment residuals in a land application unit, surface impoundment, or waste pile.(2) The Office of the Chief Clerk shall mail the Notice of Receipt of Application and Declaration of Administrative Completeness along with a copy of the registration application to the county judge in the county where the proposed site is to be located.(3) The Office of the Chief Clerk shall mail the Notice of Receipt of Application and Declaration of Administrative Completeness to the landowners named on the application map or supplemental map, or the sheet attached to the application map or supplemental map.(4) Each notice must specify both the name, affiliation, address, and telephone number of the applicant and of the executive director staff who may be reached to obtain more information about the application to register the site. The notice must specify that the registration application has been provided to the county judge and that it is available for review by interested parties.(5) Any application for a registration is subject to the standards and requirements for actions concerning amendments, modifications, transfers, and renewals of registrations, as set forth in Chapter 50, Subchapter G of this title.(d) Public comment on registrations. A person may provide the commission with written comments on any new or major amendment applications to register a site, where applicable. The executive director shall review any written comments when they are received within 30 days of mailing the notice. The written information received will be considered by the executive director in determining what action to take on the application for registration in accordance with §312.12(b) of this title (relating to Registrations).(e) Motion to overturn. The applicant, public interest counsel, or other person may file with the chief clerk a motion to overturn under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) to overturn the executive director's final approval or denial of an application.</content><note type="source"><p>Source Note: The provisions of this §312.13 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective May 15, 1997, 22 TexReg 4003; amended to be effective August 29, 2002, 27 TexReg 7958; amended to be effective October 20, 2005, 30 TexReg 6743; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c312/scB"><num value="B">SUBCHAPTER B</num><heading>LAND APPLICATION AND STORAGE OF BIOSOLIDS AND DOMESTIC SEPTAGE</heading><section identifier="/us/state/tx/tac/t30/p1/c312/scB/s312.41"><num value="312.41">§312.41</num><heading>Applicability</heading><content>(a) Application to land. This subchapter applies to any person who prepares biosolids and/or domestic septage that are land applied, to any person who land applies biosolids and/or domestic septage, to biosolids and/or domestic septage that are land applied, and to the land on which biosolids and/or domestic septage are applied.(b) Bulk biosolids.(1) When bulk biosolids are land applied and do not exceed the metal concentrations in Table 3 of §312.43(b)(3) of this title (relating to Metal Limits), meets the Class A biosolids pathogen requirements in §312.82(a)(3) of this title (relating to Pathogen Reduction), and meets one of the vector attraction reduction requirements in §312.83(b)(1) - (8) of this title (relating to Vector Attraction Reduction), then the provisions of §312.42 of this title (relating to General Requirements) and §312.44 of this title (relating to Management Practices) do not apply with the exception of §312.44(a), (b), (h)(3), (j), and (m) of this title.(A) When bulk biosolids are land applied that do not exceed the metal concentrations in Table 3 of §312.43(b)(3) of this title, meets the Class AB pathogen requirements in §312.82(a)(2) of this title, and meets one of the vector attraction reduction requirements in §312.83(b)(1) - (8) of this title, then §312.44(a), (b), (c)(2)(D) and (E), (d), (h)(1), (3), (5) and (6), (j), (l), and (m) of this title will apply to the land application of biosolids.(B) When bulk biosolids are land applied that do not exceed the metal concentrations in Table 3 of §312.43(b)(3) of this title, meets the Class AB pathogen requirements in §312.82(a)(2) of this title, and meets one of the vector attraction reduction requirements in §312.83(b)(1) - (8) in addition to (9) or (10) of this title, then the requirements in subparagraph (A) of this paragraph do not apply with the exception of §312.44(a), (b), (h)(3), (j), and (m) of this title.(2) The executive director may apply any or all of §312.42 and §312.44 of this title to the bulk biosolids described in this subsection on a case-by-case basis after determining that the general requirements or management practices are needed to protect human health or the environment from any reasonably anticipated adverse effect that may occur from any metal in the bulk biosolids.(c) General Requirements for Bulk Derived Materials.(1) When derived material from biosolids are land applied and do not exceed the metal concentrations in Table 3 of §312.43(b)(3) of this title, meets the Class A pathogen requirements in §312.82(a)(3) of this title, and meets one of the vector attraction reduction requirements in §312.83(b)(1) - (8) of this title, then the provisions of §312.42 and §312.44 of this title do not apply with the exception of §312.44(a), (b), (h)(3), (j), and (m) of this title.(A) When bulk biosolids are land applied that do not exceed the metal concentrations in Table 3 of §312.43(b)(3) of this title, meets the Class AB pathogen requirements in §312.82(a)(2) of this title, and meets one of the vector attraction reduction requirements in §312.83(b)(1) - (8) of this title, then §312.44(a), (b), (c)(2)(D) and (E), (d), (h)(1), (3), (5), and (6), (j), (l), and (m) of this title will apply to the land application of biosolids.(B) When bulk biosolids are land applied that do not exceed the metal concentrations in Table 3 of §312.43(b)(3) of this title, meets the Class AB pathogen requirements in §312.82(a)(2) of this title, and meets one of the vector attraction reduction requirements in §312.83(b)(1) - (8) in addition to (9) or (10) of this title, then the requirements in subsection (b)(1)(A) of this section do not apply with the exception of §312.44(a), (b), (h)(3), (j), and (m) of this title.(2) The executive director may apply any or all of §312.42 and §312.44 of this title to the bulk material described in this subsection on a case-by-case basis after determining that the general requirements or management practices are needed to protect human health or the environment from any reasonably anticipated adverse effect that may occur from any metal in the bulk sewage sludge.(d) Special Requirements for Certain Bulk Derived Materials. The requirements in this subchapter may not apply when a bulk material derived from biosolids are land applied; if the biosolids from which the bulk material is derived do not exceed the metal concentrations in Table 3 of §312.43(b)(3) of this title, meets the Class A or Class AB pathogen requirements in §312.82(a) of this title, and meets one of the vector attraction reduction requirements in §312.83(b)(1) - (8) of this title. The executive director may apply any or all of §312.42 and §312.44 of this title to the bulk derived material on a case-by-case basis after determining that the general requirements or management practices are needed to protect human health or the environment from any reasonably anticipated adverse effect that may occur from any metal in the biosolids.(e) Bagged biosolids. Section 312.42 and §312.44 of this title may not apply when biosolids are sold or given away in a bag or other container for land application if the biosolids do not exceed the metal concentrations in Table 3 of §312.43(b)(3) of this title, meets the Class A or Class AB pathogen requirements in §312.82(a) of this title, and meets one of the vector attraction reduction requirements in §312.83(b)(1) - (8) of this title.(f) Bagged derived materials. Section 312.42 and §312.44 of this title may not apply when a material derived from biosolids are sold or given away in a bag or other container for land application if the derived material does not exceed the metal concentrations in §312.43(b) of this title, meets the Class A or Class AB pathogen requirements in §312.82(a) of this title, and meets one of the vector attraction reduction requirements in §312.83(b)(1) - (8) of this title.(g) Bagged materials. The requirements in this subchapter may not apply when a material derived from biosolids is sold or given away in a bag or other container for land application if the biosolids from which the material is derived do not exceed the metal concentrations in Table 3 of §312.43(b)(3) of this title, meets the Class A or Class AB pathogen requirements in §312.82(a) of this title, and meets one of the vector attraction reduction requirements in §312.83(b)(1) - (8) of this title.</content><note type="source"><p>Source Note: The provisions of this §312.41 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scB/s312.42"><num value="312.42">§312.42</num><heading>General Requirements</heading><content>(a) No person shall land apply biosolids and/or domestic septage except in accordance with the requirements in this subchapter.(b) No person shall apply biosolids that exceeds the metal concentrations in Table 3 of §312.43(b)(3) of this title (relating to Metal Limits) to land where any of the cumulative metal loading rates in Table 2 of §312.43(b)(2) of this title have been exceeded.(c) No person shall apply domestic septage to agricultural land, forest, or a reclamation site during a 365-day period where the annual application rate in §312.43(c) of this title has been exceeded.(d) The person who land applies biosolids and/or domestic septage shall obtain information needed to comply with the requirements in this subchapter.(e) If a treatment works provides bulk biosolids to a person who land applies the bulk biosolids, the treatment works shall provide the person who land applies the bulk biosolids notice and necessary information to comply with the requirements in this subchapter.(f) If a treatment works provides bulk biosolids to a person who prepares the bulk biosolids for land application, the treatment works shall provide the person who prepares the bulk biosolids notice and necessary information to comply with the requirements in this subchapter.(g) The person who land applies bulk biosolids shall provide the owner or lease-holder of the land on which the bulk biosolids are applied notice and necessary information to comply with the requirements in this subchapter.(h) If a treatment works provides biosolids to a person who prepares the biosolids for sale or give away in a bag or other container for land application, the treatment works shall provide the person who prepares the biosolids notice and information to comply with the requirements in this subchapter.(i) The applicant shall determine the concentration of regulated metals in accordance with §312.12(a)(1)(I) of this title (relating to Registrations) and demonstrate to the satisfaction of the executive director that the proposed cumulative metal loading will not result in a toxic condition or increase the toxicity of the existing soil.</content><note type="source"><p>Source Note: The provisions of this §312.42 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scB/s312.43"><num value="312.43">§312.43</num><heading>Metal Limits</heading><content>(a) Biosolids. (1) Bulk biosolids or biosolids sold or given away in a bag or other container shall not be land applied if the concentration of any metal in the biosolids exceeds the ceiling concentration for the metal in Table 1 of subsection (b) of this section. (2) If the bulk biosolids are applied to agricultural land, forest, a public contact site, or a reclamation site, either: (A) the cumulative loading rate for each metal shall not exceed the cumulative metal loading rate for the metal in Table 2 of subsection (b) of this section; or (B) the concentration of each metal in the biosolids shall not exceed the concentration for the metal in Table 3 of subsection (b) of this section. (3) If bulk biosolids are applied to a lawn or a home garden, the concentration of each metal in the biosolids shall not exceed the concentration for the metal in Table 3 of subsection (b) of this section. (4) If biosolids are sold or given away in a bag or other container for land application, either: (A) the concentration of each metal in the biosolids shall not exceed the concentration for the metal in Table 3 in subsection (b) of this section; or (B) the product of the concentration of each metal in the biosolids and the annual whole application rate for the biosolids shall not cause the annual metal loading rate for the metal in Table 4 of subsection (b) of this section to be exceeded. The procedure used to determine the annual whole application rate is presented in §312.49 of this title (relating to Procedure to Determine the Annual Whole Application Rate for Biosolids and Domestic Septage). (b) Metal concentrations and loading rates--biosolids. (1) Ceiling concentrations. Attached Graphic(2) Cumulative metal loading rates. Attached Graphic(3) Metal concentrations. Attached Graphic(4) Annual metal loading rates. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §312.43 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scB/s312.44"><num value="312.44">§312.44</num><heading>Management Practices</heading><content>(a) Land application of bulk biosolids and/or domestic septage must not cause or contribute to the harm of a threatened or endangered species of plant, fish, or wildlife or result in the destruction or adverse modification of the critical habitat of a threatened or endangered species.(b) Bulk biosolids and/or domestic septage must not be applied to agricultural land, forest, a public contact site, or a reclamation site that is flooded, frozen, or snow-covered so that the bulk biosolids and/or domestic septage enters a wetland or other water in the state, except as provided in a permit issued under Chapter 305 of this title (relating to Consolidated Permits) or federal Clean Water Act, §404.(c) When bulk biosolids that do not meet Class A pathogen requirements or domestic septage is land applied to agricultural land, forest, or a reclamation site, buffer zones listed under paragraph (1)(A) and (B) and paragraph (2)(A) - (C), (E) and (F) of this subsection must be established at the time of issuance of a permit or registration and maintained at all times for each land application unit as noted in this section unless otherwise specified by the commission. In addition, the buffer zone listed under paragraph (2)(D) of this subsection must be established at the time of issuance of a permit or registration for each land application unit unless otherwise specified by the commission. The buffer zone listed under paragraph (2)(D) of this subsection shall be re-evaluated and maintained as needed, upon renewal or major amendment of a permit or registration.(1) Surface water:(A) 200-foot buffer zone, if the biosolids and/or domestic septage are not incorporated; for land application units located in a major sole-source impairment zone this buffer zone must maintain a vegetative cover; or(B) 33-foot vegetative buffer zone, if the biosolids and/or domestic septage are incorporated.(2) Other buffer zones:(A) 150 feet, private water supply well;(B) 500 feet, public water supply well, intake, spring or similar source, public water supply treatment plant, or public water supply elevated or ground storage tank;(C) 200 feet, solution channel, sinkhole, or other conduit to groundwater;(D) 750 feet, established school, institution, business, or occupied residential structure;(E) 50 feet, public right-of-way and property boundaries; and(F) 10 feet, irrigation conveyance canal.(d) Any of the buffers established in subsection (c)(2)(D) and (E) of this section may be reduced or eliminated if an agreement to that effect is signed by the owners of the established school, institution, business, occupied residential structure, or adjacent property and this documentation is provided to the executive director prior to issuance of a permit or registration. Reductions or elimination of buffer zones in an existing permit or registration by agreement of the affected landowner will be considered a minor amendment of the permit or registration.(e) Bulk biosolids and/or domestic septage must be applied to agricultural land, forest, or a public contact site at an annual whole application rate that is equal to or less than the agronomic rate for the agricultural land, forest, or public contact site on which the bulk biosolids and/or domestic septage are applied.(f) Bulk biosolids and/or domestic septage must be applied to a reclamation site at an annual whole application rate that is equal to or less than the agronomic rate for the reclamation site on which the bulk biosolids and/or domestic septage are applied, unless otherwise specified by the executive director or commission. On a case-by-case basis, an annual whole application rate may exceed the agronomic rate for a specific time period.(g) Groundwater protection measures.(1) A seasonal high groundwater table must be not less than three feet below the treatment zone for soils with moderate or slower permeability (less than two inches per hour).(2) A seasonal high groundwater table must be not less than four feet below the treatment zone for soils with moderately rapid or rapid permeability (greater than two inches per hour and less than 20 inches per hour).(3) Seasonal generally refers to a groundwater table that may be perched on a less permeable soil or geologic unit and fluctuates with seasonal climatic variation or that occurs in a soil or geologic unit as a variation in saturation due to seasonal climatic conditions and is identified as such in a published soil survey report or similar document.(4) Application of biosolids and/or domestic septage to land having soils with greater permeability and with higher groundwater tables will be considered on a case-by-case basis, after consideration of soil pH, metal loadings onto the soil, soil buffering capacity, or other protective measures to prevent groundwater contamination.(h) Biosolids and/or domestic septage must be land applied by a method and under conditions that prevent runoff beyond the land application unit and protect the quality of the surface water and the soils in the unsaturated zone.(1) Biosolids and/or domestic septage must be land applied uniformly over the surface of the land.(2) Biosolids and/or domestic septage may not be land applied to areas where permeable surface soils are less than two feet thick. The executive director will consider sites with thinner permeable surface soils, on a case-by-case basis.(3) Biosolids and/or domestic septage may not be land applied during any time when precipitation occurs, during periods in which surface soils are water-saturated, or when pooling of water is evident on the land application unit. The operator of a Class B land application unit, a domestic septage land application unit, or a bulk biosolids land application unit that is subject to the notification requirements in §312.4(b) of this title (relating to Required Authorizations or Notifications) shall submit an Adverse Weather and Alternative Plan. This plan shall detail procedures to address times when the biosolids and/or domestic septage cannot be applied to the land application unit due to adverse weather or other conditions such as wind, precipitation, field preparation delays, and access road limitations.(4) Biosolids and/or domestic septage may not be applied to areas having topographical slopes in excess of 8.0%. On a case-by-case basis, the executive director will consider sites with steeper slopes when runoff controls are proposed and utilized, incorporation of biosolids and/or domestic septage into the soil occurs, or for certain reclamation projects.(5) Where runoff of biosolids and/or domestic septage from the land application unit is evident, the operator shall cease further land application until the condition is corrected.(6) Biosolids and/or domestic septage may not be land applied within a designated floodway.(i) Either a label must be affixed to the bag or other container in which biosolids are sold or given away for land application or an information sheet must be provided to the person who receives biosolids sold or given away in another container for land application. The label or information sheet must contain the following information:(1) the name and address of the person who prepared the biosolids;(2) a statement that prohibits the land application of the biosolids except in accordance with the instructions on the label or information sheet; and(3) the annual whole application rate for the biosolids that do not cause the annual metal loading rates in Table 4 of §312.43(b)(4) of this title (relating to Metal Limits) to be exceeded.(j) Nuisance controls.(1) A land application unit location must be selected and the site operated in a manner to prevent public health nuisances.(2) Debris must be prevented from blowing or running off site boundaries or into surface waters.(3) To prevent nuisance conditions from occurring, the operator shall:(A) minimize dust migration from the site and access roadways;(B) minimize offensive odors through incorporation of biosolids and/or domestic septage into the soil or by taking some other type of corrective action; and(C) develop and implement best management practices (BMPs) to minimize off-site tracking of biosolids and/or domestic septage and sediment during the transport of biosolids and/or domestic septage to and from the land application unit or storage area; and to include at a minimum, removing tracked material, to the extent practicable, by the end of each day of operation at the site and either returning it to the site or otherwise disposing of it properly. The documented BMPs shall be retained by the operator and made by readily available for review by a TCEQ representative.(4) Odor Control. Pursuant to the authority vested in the commission or executive director in §312.6 of this title (relating to Additional or More Stringent Requirements), a person who prepares biosolids and/or domestic septage or land applies biosolids and/or domestic septage on agricultural land may be subject to an Odor Control Plan on a case-by-case basis.(k) A permit or registration must specify the soil testing requirements for each land application unit.(1) The testing frequency must consider common agricultural methods of determining crop nutrient needs, soil pH, phytotoxicity, and concentrations of metals regulated by this chapter.(2) No authorization may require soil testing of metals regulated by this chapter, at a frequency greater than once per five years or prior to submittal of a renewal application for a land application unit. Soil testing for metals regulated by this chapter may not be required for portions of the authorized site where biosolids and/or domestic septage have not been applied since the last soil metals testing was performed.(3) Paragraph (2) of this subsection does not apply if the executive director becomes aware of circumstances warranting increased monitoring of metals regulated by this chapter, to address sites where metal loading into the soil is a threat to human health or environmental quality.(l) An operator of a Class AB or Class B land application unit shall post a sign that is visible from a publicly accessible road or sidewalk that is adjacent to the premises on which the land application unit is located stating that a biosolids land application unit is located on the premises. The sign shall be posted three days prior to and 14 days after the commencement of land application of biosolids and shall include the operator name, telephone number, the classification of biosolids and the TCEQ authorization number. In the event of reasonably unforeseen circumstances such as weather conditions or equipment failure that necessitate a change in a planned land application unit, the required sign may be posted on the day on which biosolids land application commences. If signs are posted less than three days prior to land application, records shall be maintained documenting the unforeseeable circumstance that necessitated the change in a planned land application unit. Such records shall be retained by the operator and be readily available for review by a TCEQ representative.(m) All vehicles and equipment used for the transport of bulk biosolids and/or domestic septage for land application or disposal shall be constructed, operated, and maintained to prevent the loss of liquid or solid materials during transport. An operator of a bulk biosolids land application unit may not accept bulk biosolids, unless the biosolids is transported to the land application unit in a covered container with the covering firmly secured at the front and back.</content><note type="source"><p>Source Note: The provisions of this §312.44 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective October 20, 2005, 30 TexReg 6743; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scB/s312.45"><num value="312.45">§312.45</num><heading>Operational Standards--Pathogens and Vector Attraction</heading><content>(a) Pathogens.(1) The Class A or Class AB biosolids pathogen requirements in §312.82(a) of this title (relating to Pathogen Reduction) or Class B biosolids pathogen requirements in §312.82(b) of this title shall be met if bulk biosolids are applied to agricultural land, forest, a public contact site, or a reclamation site.(2) The Class A or Class AB biosolids pathogen requirements in §312.82(a) of this title shall be met if bulk biosolids are applied to a lawn or a home garden.(3) The Class A or Class AB biosolids pathogen requirements in §312.82(a) of this title shall be met if biosolids are sold or given away in a bag or other container for land application.(4) The requirements in §312.82(c) of this title shall be met if domestic septage is applied to agricultural land, forest, or a reclamation site.(b) Vector attraction reduction.(1) One of the vector attraction reduction requirements in §312.83(b)(1) - (10) of this title (relating to Vector Attraction Reduction) shall be met if bulk biosolids are applied to agricultural land, forest, a public contact site, or a reclamation site.(2) One of the vector attraction reduction requirements in §312.83(b)(1) - (8) of this title shall be met if bulk biosolids are applied to a lawn or a home garden.(3) One of the vector attraction reduction requirements in §312.83(b)(1) - (8) of this title shall be met if biosolids are sold or given away in a bag or other container for land application.(4) The vector attraction reduction requirements in §312.83(b)(12) of this title shall be met if domestic septage is applied to agricultural land, forest, or a public contact site.</content><note type="source"><p>Source Note: The provisions of this §312.45 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scB/s312.46"><num value="312.46">§312.46</num><heading>Frequency of Monitoring</heading><content>(a) Biosolids. (1) The frequency of monitoring for the metals listed in §312.43(b)(1) - (4) of this title (relating to Metal Limits); the pathogen density requirements in either §312.82(a) or (b)(1)(C) and (b)(2) of this title (relating to Pathogen Reduction); and vector attraction reduction requirements in §312.83(b)(1) - (8) of this title (relating to Vector Attraction Reduction) are defined in Table 5. Attached Graphic(2) After the biosolids have been monitored for two years at the frequency shown in paragraph (1) of this subsection (Table 5), the executive director may reduce the frequency of monitoring for metal concentrations and for the pathogen density requirements, but in no case shall the frequency of monitoring be less than once per year when biosolids are land applied. A reduction in monitoring will be allowed after agency review of a significant data set of sample results and where the city or cities generating the biosolids have in place a satisfactory and enforceable pretreatment program. (3) After the biosolids have been monitored for two years at the frequency shown in paragraph (1) of this subsection (Table 5), the executive director may increase the frequency of monitoring for metal concentrations and for the pathogen density requirements. An increase in monitoring will be required after agency review of a significant data set of sample results and where high metal or pathogen values are present in biosolids that are generated. (b) Domestic septage applied to agricultural land, forest, or a reclamation site shall be monitored for the pathogen reduction requirements in §312.82(c) of this title and the vector attraction reduction requirements in §312.83(b)(12) of this title.</content><note type="source"><p>Source Note: The provisions of this §312.46 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scB/s312.47"><num value="312.47">§312.47</num><heading>Recordkeeping</heading><content>(a) Biosolids.(1) The person who prepares the biosolids in §312.41(b)(1) or (e) of this title (relating to Applicability) shall develop the following information and shall retain the information for five years:(A) the concentration of each metal listed in Table 3 of §312.43(b)(3) of this title (relating to Metal Limits) in the biosolids;(B) the following certification statement: "I certify, under penalty of law, that the Class A (or insert Class AB) biosolids pathogen requirements in 30 TAC §312.82(a) and the vector attraction reduction requirement in (insert one of the vector attraction reduction requirements in 30 TAC §312.83(b)(1) - (8)) have been met. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the pathogen requirements and vector attraction reduction requirements have been met. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";(C) a description of how the Class A or Class AB biosolids pathogen requirements in §312.82(a) of this title (relating to Pathogen Reduction) are met; and(D) a description of how one of the vector attraction reduction requirements in §312.83(b)(1) - (8) of this title (relating to Vector Attraction Reduction) is met.(2) The person who derives the material in §312.41(c)(1) or (f) of this title shall develop the following information and shall retain the information for five years:(A) the concentration of each metal listed in Table 3 of §312.43(b)(3) of this title in the material;(B) the following certification statement: "I certify, under penalty of law, that the Class A (or insert Class AB) biosolids pathogen requirements in 30 TAC §312.82(a) and the vector attraction reduction requirement in (insert one of the vector attraction reduction requirements in 30 TAC §312.83(b)(1) - (8)) have been met. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the pathogen requirements and the vector attraction reduction requirements have been met. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";(C) a description of how the Class A or Class AB biosolids pathogen requirements in §312.82(a) of this title are met; and(D) a description of how one of the vector attraction reduction requirements in §312.83(b)(1) - (8) of this title is met.(3) If the metal concentrations in Table 3 of §312.43(b)(3) of this title are not exceeded, the Class A or Class AB biosolids pathogen requirements in §312.82(a) of this title, and the vector attraction reduction requirements in either §312.83(b)(9) or (10) of this title are met when bulk biosolids are applied to agricultural land, forest, a public contact site, or a reclamation site:(A) The person who prepares the bulk biosolids shall develop the following information and shall retain the information for five years:(i) the concentration of each metal listed in Table 3 of §312.43(b)(3) of this title in the bulk biosolids;(ii) the following certification statement: "I certify, under penalty of law, that the pathogen requirements in 30 TAC §312.82(a) have been met. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the pathogen requirements have been met. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment."; and(iii) a description of how the pathogen requirements in §312.82(a) of this title are met.(B) The person who applies the bulk biosolids shall develop the following information and shall retain the information for five years:(i) the following certification statement: "I certify, under penalty of law, that the management practices in 30 TAC §312.44 and the vector attraction reduction requirement in (insert either 30 TAC §312.83(b)(9) or (10)) have been met. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the management practices and vector attraction reduction requirements have been met. I am aware that there are significant penalties for false certification including fine and imprisonment.";(ii) a description of how the management practices in §312.44 of this title (relating to Management Practices) are met for each site on which bulk biosolids are applied; and(iii) a description of how the vector attraction reduction requirements in either §312.83(b)(9) or (10) of this title are met for each site on which bulk biosolids are applied.(4) If the metal concentrations in Table 3 of §312.43(b)(3) of this title are not exceeded and the Class B pathogen requirements in §312.82(b) of this title are met when bulk biosolids are applied to agricultural land, forest, a public contact site, or a reclamation site:(A) The person who prepares the bulk biosolids shall develop the following information and shall retain the information for five years:(i) the concentration of each metal listed in Table 3 of §312.43(b)(3) of this title in the bulk biosolids;(ii) the following certification statement: "I certify under, penalty of law, that the Class B biosolids pathogen requirements in 30 TAC §312.82(b) and the vector attraction reduction requirement in (insert one of the vector attraction reduction requirements in 30 TAC §312.83(b)(1) - (8) if one of those requirements is met) have been met. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the pathogen requirements have been met. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";(iii) a description of how the Class B biosolids pathogen requirements in §312.82(b) of this title are met; and(iv) when one of the vector attraction reduction requirements in §312.83(b)(1) - (8) of this title is met, a description of how the vector attraction reduction requirement is met.(B) The person who applies the bulk biosolids shall develop the following information and shall retain the information for five years:(i) the following certification statement: "I certify, under penalty of law, that the management practices in 30 TAC §312.44, the site restrictions in 30 TAC §312.82(b)(3), and the vector attraction reduction requirements in (insert either 30 TAC §312.83(b)(9) or (10), if one of those requirements is met) have been met for each site on which bulk biosolids are applied. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the management practices and site restrictions (and the vector attraction reduction requirements if applicable) have been met. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";(ii) a description of how the management practices in §312.44 of this title are met for each site on which bulk biosolids are applied;(iii) a description of how the site restrictions in §312.82(b)(3) of this title are met for each site on which bulk biosolids are applied; and(iv) when the vector attraction reduction requirement in either §312.83(b)(9) or (10) of this title is met, a description of how the vector attraction reduction requirement is met.(5) If the requirements in §312.43(a)(2)(A) of this title are met when bulk biosolids are applied to agricultural land, forest, a public contact site, or a reclamation site:(A) The person who prepares the bulk biosolids shall develop the following information and shall retain the information for five years:(i) the concentration of each metal listed in Table 1 of §312.43(b)(1) of this title in the bulk biosolids;(ii) the following certification statement: "I certify, under penalty of law, that the pathogen requirements in (insert either 30 TAC §312.82(a) or (b)) and the vector attraction reduction requirement in (insert one of the vector attraction reduction requirements in 30 TAC §312.83(b)(1) - (8) if one of those requirements is met) have been met. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the pathogen requirements have been met. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";(iii) a description of how the pathogen requirements in either §312.82(a) or (b) of this title are met;(iv) when one of the vector attraction requirements in §312.83(b)(1) - (8) of this title is met, a description of how the vector attraction requirement is met.(B) The person who applies the bulk biosolids shall develop the following information, retain the information in clauses (i) - (vii) of this subparagraph indefinitely, and retain the information in clause (viii) - (xiii) of this subparagraph, for five years:(i) the location, by either street address or latitude and longitude, of each site on which bulk biosolids are applied;(ii) the number of acres in each site on which bulk biosolids are applied;(iii) the date and time bulk biosolids are applied to each site;(iv) the cumulative amount of each metal (i.e., kilograms) listed in Table 2 of §312.43(b)(2) of this title in the bulk biosolids applied to each site, including the amount in §312.42(e) of this title (relating to General Requirements);(v) the amount of biosolids (i.e., metric tons) applied to each site;(vi) the following certification statement: "I certify, under penalty of law, that the requirements to obtain information in 30 TAC §312.42(e) have been met for each site on which bulk biosolids are applied. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the requirements to obtain information have been met. I am aware that there are significant penalties for false certification including fine and imprisonment.";(vii) a description of how the requirements to obtain information in §312.42(e) of this title are met;(viii) the following certification statement: "I certify, under penalty of law, that the management practices in 30 TAC §312.44 have been met for each site on which bulk biosolids are applied. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the management practices have been met. I am aware that there are significant penalties for false certification including fine and imprisonment.";(ix) a description of how the management practices in §312.44 of this title are met for each site on which bulk biosolids are land applied;(x) the following certification statement when the bulk biosolids meets the Class B pathogen requirements in 30 TAC §312.82(b): "I certify, under penalty of law, that the site restrictions in 30 TAC §312.82(b)(3) have been met. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the site restrictions have been met. I am aware that there are significant penalties for false certification including fine and imprisonment.";(xi) a description of how the site restrictions in §312.82(b)(3) of this title are met for each site on which Class B bulk biosolids are land applied;(xii) the following certification statement when the vector attraction reduction requirement in either 30 TAC §312.83(b)(9) or (10) is met: "I certify, under penalty of law, that the vector attraction reduction requirement in (insert either 30 TAC §312.83(b)(9) or (10)) has been met. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the vector attraction reduction requirement has been met. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment."; and(xiii) if the vector attraction reduction requirements in either §312.83(b)(9) or (10) of this title are met, a description of how the requirements are met.(6) If the requirements in §312.43(a)(4)(B) of this title are met when biosolids are sold or given away in a bag or other container for land application, the person who prepares the biosolids shall develop the following information and shall retain the information for five years:(A) the annual whole application rate for the biosolids that do not cause the annual metal loading rates in Table 4 of §312.43(b)(4) of this title to be exceeded;(B) the concentration of each metal listed in Table 4 of §312.43(b)(4) of this title in the biosolids;(C) the following certification statement: "I certify, under penalty of law, that the management practice in 30 TAC §312.44(e), the Class A (or insert Class AB) biosolids pathogen requirement in 30 TAC §312.82(a), and the vector attraction reduction requirement in (insert one of the vector attraction reduction requirements in 30 TAC §312.83(b)(1) - (8)) have been met. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the management practice, pathogen requirements, and vector attraction reduction requirements have been met. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";(D) a description of how the Class A or Class AB biosolids pathogen requirements in §312.82(a) of this title are met;(E) a description of how one of the vector attraction requirements in §312.83(b)(1) - (8) of this title is met.(7) The person who land applies Class B biosolids shall develop the following information and shall retain the information for five years:(A) the dates of harvesting; and(B) the amount harvested, excluding grazing.(8) The requirements of this subsection must be readily available for review by commission staff or be submitted to the executive director upon request.(b) Domestic septage. When domestic septage is applied to agricultural land, forest, or a reclamation site, the person who applies the domestic septage shall develop the following information and shall retain the information for five years and must be readily available for review by commission staff or be submitted to the executive director upon request:(1) the location, by either street address or latitude and longitude, of each site on which domestic septage is applied;(2) the number of acres in each site on which domestic septage is applied;(3) the date and time domestic septage is applied to each site;(4) the nitrogen requirement for the crop or vegetation grown on each site during a 365-day period;(5) the rate, in gallons per acre per 365-day period, at which domestic septage is applied to each site;(6) The following certification statement: "I certify, under penalty of law, that the pathogen requirements in (insert either 30 TAC §312.82(c)(1) or (2)) and the vector attraction reduction requirements in (insert 30 TAC §312.83(b)(9), (10), or (12)) have been met. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the pathogen requirements and vector attraction reduction requirements have been met. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment.";(7) a description of how the pathogen requirements in either §312.82(c)(1) or (2) of this title are met;(8) a description of how the vector attraction reduction requirements in §312.83(b)(9), (10), or (12) of this title are met;(9) the dates of harvesting; and(10) the amount harvested, excluding grazing.</content><note type="source"><p>Source Note: The provisions of this §312.47 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scB/s312.48"><num value="312.48">§312.48</num><heading>Reporting</heading><content>Unless otherwise specified by the executive director, permittees and registrants shall submit the following information to the Enforcement Division, the Wastewater Permitting Section of the Water Quality Division, and the appropriate regional office:(1) annually by September 30th of each year (reporting period September 1st of the previous year to August 31st of the current year):(A) the information in §312.47 of this title (relating to Recordkeeping) for the applicable requirements;(B) the information in §312.47(a)(5)(A)(i) - (iv) of this title if:(i) the biosolids exceed the metal concentrations in §312.43(b)(3) of this title (relating to Metal Limits);(ii) 90% or more of any of the cumulative metal loading rates in §312.43(b)(2) of this title is reached at a site; or(iii) biosolids are applied to a site after 90% of any of the cumulative metal loading rates is reached at the site; and(C) for the Class B biosolids land application permittee:(i) evidence that the permittee is complying with the nutrient management plan developed by a certified nutrient management specialist in accordance with the United States Department of Agriculture Natural Resource Conservation Service Practice Standard Code 590;(ii) a completed Annual Biosolids Land Application Summary Report Form; and(iii) proof of continuation of commercial liability insurance and environmental impairment insurance; and(2) for the Class B biosolids permittee, submit quarterly reports by the 15th day of the month following each quarter. Quarterly reports are due December 15th, March 15th, June 15th, and September 15th and must include:(A) a Quarterly Biosolids Land Application Summary Report form; and(B) a computer-generated quarterly report containing:(i) the source, quality, and quantity of Class B biosolids land applied to the land application unit;(ii) the location of the land application unit, either in terms of longitude and latitude or by physical address, including the county;(iii) the dates of delivery of Class B biosolids;(iv) the dates of land application of Class B biosolids;(v) the cumulative amount of metals land applied to the land application unit;(vi) crops grown at the land application unit; and(vii) the suggested agronomic application rate for the Class B biosolids.</content><note type="source"><p>Source Note: The provisions of this §312.48 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective October 20, 2005, 30 TexReg 6743; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scB/s312.49"><num value="312.49">§312.49</num><heading>Procedure to Determine the Annual Whole Application Rate for Biosolids and Domestic Septage</heading><content>(a) This subsection contains the procedure used to determine the annual whole application rate (AWAR) for a biosolids that does not cause the annual metal loading rates in Table 4 of §312.43(b)(4) of this title (relating to Metal Limits) to be exceeded. Determine the AWAR using the following procedure.(1) Analyze a sample of the biosolids to determine the concentration for each of the metals listed in Table 4 of §312.43 of this title. (2) Using the metal concentrations from paragraph (1) of this subsection and the AMLRs from Table 4 of §312.43 of this title, calculate an AWAR for each metal using Equation B.1. (3) The AWAR for the biosolids is the lowest AWAR calculated in paragraph (2) of this subsection. Attached Graphic(b) Domestic Septage. The annual whole application rate for domestic septage applied to agricultural land, forest, or a reclamation site shall be equal to or less than the annual whole application rate calculated using Equation B.2.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §312.49 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scB/s312.50"><num value="312.50">§312.50</num><heading>Storage and Staging of Biosolids and Domestic Septage</heading><content>(a) Except as provided in subsection (b) of this section, storage of biosolids and/or domestic septage at a land application unit must not exceed 90 days. Storage is allowed only when the following requirements are carried out. (1) Written authorization must be obtained from the executive director prior to construction of the storage area. (2) The storage area must be operated and maintained to prevent surface water runoff and to prevent a release to groundwater. Discharge of stormwater or wastewater which has come into contact with biosolids and/or domestic septage is prohibited. The storage area shall be designed to collect such runoff. Any runoff collected during the storage of biosolids and/or domestic septage shall be disposed in a manner to prevent a release to groundwater. (3) The storage area shall be designed, constructed, and operated in a manner which protects human health and the environment. Biosolids and/or domestic septage shall be stored away from odor receptors in order to prevent off-site dust migration from the storage area and to prevent nuisance odors.(4) For biosolids only, the storage area must be lined to prevent a release to groundwater. Natural or artificial liners are required for leachate control. A natural liner or equivalent barrier of one foot of compacted clay with a permeability coefficient of 1 x 10-7 cm/sec or less must be provided. Various flexible synthetic membrane lining materials may be used in lieu of soil liners if prior written approval has been obtained from the executive director. The applicant shall furnish certification by a licensed professional engineer or licensed professional geoscientist that the completed storage area lining meets the appropriate criteria described in this section prior to using the facilities. The certification shall be signed, sealed, and dated by a licensed professional engineer or licensed professional geoscientist. (5) The request for the storage area shall outline measures to be taken to minimize vectors and to avoid public health nuisances such as odors. (6) The storage area shall be fenced, or other methods shall be used, if necessary, to control access by humans or domestic livestock. (7) For biosolids only, berms or dikes shall be constructed to contain the waste without leakage. (8) Liquid biosolids and/or domestic septage must be stored in an enclosed vessel. (9) Processing of biosolids and/or domestic septage is prohibited unless a permit is obtained from the commission. (10) In the event a person who prepares biosolids and/or domestic septage that is land applied or who land applies biosolids and/or domestic septage, is subject to an Odor Control Plan as described in §312.44(j)(4) of this title (relating to Management Practices), that person must comply with the terms of the applicable Odor Control Plan in order to store biosolids and/or domestic septage at a land application unit. (b) Up to an additional 90 days of storage will be allowed with the prior approval of the appropriate Texas Commission on Environmental Quality (TCEQ) regional office, for reasons associated with application area flooding, saturated soils, or frozen soils. (c) Staging of biosolids and/or domestic septage on-site, prior to land application, is allowable without executive director approval. Staging of biosolids and/or domestic septage may only occur for a maximum of seven calendar days per each individual staging location within the land application unit. Up to an additional 14 days of staging biosolids and/or domestic septage will be allowed with the prior approval of the appropriate TCEQ regional office, for reasons associated with application area flooding, saturated soils, frozen soils, or equipment failure. Biosolids and/or domestic septage cannot be moved to another staging area to restart the timeframe allowed for staging. Written records of the location of each staging area and timeframe in which biosolids and/or domestic septage were staged shall be retained by the operator and be readily available for review by a TCEQ representative. The operator shall stage the biosolids and/or domestic septage away from odor receptors in order to prevent off-site dust migration from the staging area and to prevent nuisance odors. (d) Recordkeeping. The person who stores or stages biosolids and/or domestic septage shall develop the following information and shall retain the information for five years: (1) the date, volume, and type of material deposited at the storage facility or staging area;(2) the date, volume, and type of material removed from the storage facility or staging area; and (3) if the material was not land applied on-site, the permit or registration number, location, and operator of the facility where the material that was removed from the storage facility or staging area was deposited.</content><note type="source"><p>Source Note: The provisions of this §312.50 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective September 1, 2003, 28 TexReg 6300; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c312/scC"><num value="C">SUBCHAPTER C</num><heading>SURFACE DISPOSAL</heading><section identifier="/us/state/tx/tac/t30/p1/c312/scC/s312.61"><num value="312.61">§312.61</num><heading>Applicability</heading><content>(a) This subchapter applies to any person who prepares sewage sludge and/or biosolids that are placed on a surface disposal site, to the owner/operator of a surface disposal site, to sewage sludge or biosolids placed on a surface disposal site, and to a surface disposal site.(b) This subchapter does not apply to sewage sludge and/or biosolids stored on the land or to the land on which sewage sludge and/or biosolids is stored when the storage period is two years or less and the sewage sludge and/or biosolids is stored at a treatment works authorized for such storage.(c) This subchapter does not apply to sewage sludge and/or biosolids at a treatment works authorized for such storage that remains on the land for longer than two years but less than five years when the person who prepares the sewage sludge or biosolids demonstrates that the land on which the sewage sludge and/or biosolids remains is not an active disposal unit or surface disposal site. The demonstration shall include the following information, which shall be reviewed and approved by the executive director and retained by the person who prepares the sewage sludge and/or biosolids for the period that the sewage sludge and/or biosolids remains on the land:(1) the name and address of the person who prepared the sewage sludge and/or biosolids;(2) the name and address of the person who either owns the land or leases the land;(3) the location of the land, by latitude and longitude, street address if available, and boundary shown on a 7 1/2-minute quadrangle United States Geological Survey map;(4) an explanation of why sewage sludge and/or biosolids needs to remain on the land for longer than two years prior to final use or disposal; and(5) the date by which the sewage sludge and/or biosolids will be used or disposed of. This date must clearly maintain a storage period of less than five years.</content><note type="source"><p>Source Note: The provisions of this §312.61 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scC/s312.62"><num value="312.62">§312.62</num><heading>General Requirements</heading><content>(a) No person shall place sewage sludge and/or biosolids on an active disposal unit unless the requirements in this subchapter are met.(b) An active disposal unit shall not be located within 60 meters of a fault that has displacement in Holocene time, located in an unstable area, or located in a wetland, except as provided in a permit issued pursuant to federal Clean Water Act, §402 or §404.(c) The owner/operator of an active disposal unit shall submit a written "closure and post closure plan" to the executive director, for approval, at least 180 days prior to the date that the active disposal unit closes. The plan shall describe how the unit will be closed and, at a minimum, shall include:(1) a discussion of how the leachate collection system will be operated and maintained for three years after the disposal unit closes if the disposal unit has a liner and leachate collection system;(2) a description of the system used to monitor for methane gas in the air in any structures within the surface disposal site and in the air at the property line of the surface disposal site, as required in §312.64(j) of this title (relating to Management Practices); and(3) a discussion of how public access to the surface disposal site will be restricted for a minimum of three years after the last unit in the surface disposal site closes.(4) The final cover system for monofills shall be composed of no less than two feet of soil. The first 18 inches or more of cover shall be of clayey soil, classification SC or CL as defined in the "Unified Soils Classification System" developed by the United States Army Corps of Engineers, compacted in layers of no more than six inches to minimize the potential for water infiltration. A CH soil may be used; however, this soil may experience excessive cracking and shall therefore be covered by a minimum of 12 inches of topsoil to retain moisture. Other types of soil may be used with prior written approval from the executive director. The final six inches of cover shall be of suitable topsoil that can sustain native plant growth and shall be seeded or sodded immediately following the application of the final cover in order to minimize erosion. Side slopes of the final cover for monofills shall not exceed a 25% grade (four feet horizontal to one foot vertical). Side slopes for the final cover in excess of 25% may be authorized by the executive director provided that controlled drainage such as flumes, diversion terraces, spillways, or other acceptable methods are incorporated into the final cover system design submitted to the executive director for review and approval. The final cover for the topmost portion of a disposal unit shall have a gradient of not less than 2.0% and not greater than 6.0% and shall possess a sufficient minimum grade to preclude ponding of surface water when total fill height and expected subsidence are taken into consideration.(d) The owner/operator shall comply with the post-closure care maintenance requirements for final cover, as detailed in paragraphs (1) and (2) of this subsection for the duration of the post-closure period for these units or sites.(1) For a minimum of the first three years after the completion of final closure, the permittee shall retain the right of entry to and maintain all rights-of-way of a closed surface disposal site in order to conduct periodic inspections of the closed site. The owner/operator shall correct, as needed, erosion of cover material, lack of vegetative growth, leachate or methane migration, subsidence, or ponding of water on the disposal unit or surface disposal site. If any of these problems occur after the end of the three-year post closure maintenance period or persist for longer than the first three years of post-closure care maintenance, the owner/operator shall be responsible for any corrections until the executive director determines that all problems have been adequately resolved. The executive director may reduce the post-closure maintenance period for surface disposal sites if all wastes and waste residues have been removed during closure.(2) Any monitoring programs (groundwater monitoring, resistivity surveys, methane monitoring, etc.) in effect during the life of the surface disposal site shall be continued during the post-closure care maintenance period.(e) Following completion of the post-closure care maintenance period for each surface disposal site, the owner/operator shall submit to the executive director for review and approval a certification, signed by an independent licensed professional engineer, verifying that post-closure care maintenance has been completed in accordance with the approved post-closure plan. The submittal to the executive director shall include all applicable documentation necessary for the certification of completion of post-closure care maintenance. Once approved, this certification shall be retained by the owner/operator.(f) Deed Recordation Notification.(1) No person shall place sewage sludge and/or biosolids on an active disposal unit prior to recording, in the deed records of the county or counties in which the disposal takes place, the following information:(A) a metes and bounds description of the portion(s) of the tract of land on which disposal of sewage sludge and/or biosolids will take place;(B) a detailed description of the sewage sludge and/or biosolids which is to be disposed of;(C) all pertinent information related to the permit to dispose of sewage sludge and/or biosolids, including at least the permit number and issuing agency; and(D) the name and permanent address of the person or persons operating the facility who can provide more specific information on the waste.(2) Proof of recordation shall be provided to the executive director prior to issuance of a permit.(g) The executive director shall require evidence of financial responsibility as it deems appropriate to assure the executive director that the responsible owner or operator has sufficient assets to properly operate the site and to provide proper closure and post-closure. This assurance for the proper operation of the site may be in the form of performance bonds, letters of credit from recognized financial institutions, trust funds, or insurance.</content><note type="source"><p>Source Note: The provisions of this §312.62 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scC/s312.63"><num value="312.63">§312.63</num><heading>Metal Limits (Other Than Domestic Septage)</heading><content>(a) Except as provided in subsection (b) of this section, the concentration for each metal listed in Table 6 of this subsection in sewage sludge and/or biosolids placed on an active disposal unit that does not have a liner and leachate collection system shall be equal to or less than concentration for the metal in Table 6 of this subsection. Attached Graphic(b) The concentration of each metal listed in Table 6 of subsection (a) of this section in sewage sludge and/or biosolids placed on an active disposal unit whose boundary is less than 150 meters from the property line of the surface disposal site shall not exceed the concentration determined using the following procedure. (1) The shortest actual distance from the active disposal unit boundary to the property line of the surface disposal site shall be determined. (2) The concentration of each metal listed in Table 7 of this paragraph in the sewage sludge and/or biosolids shall not exceed the concentration in Table 7 of this paragraph that corresponds to the actual distance as described in paragraph (1) of this subsection. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §312.63 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scC/s312.64"><num value="312.64">§312.64</num><heading>Management Practices</heading><content>(a) Sewage sludge and/or biosolids shall not be placed on an active disposal unit if it is likely to adversely affect a threatened or endangered species listed under the Endangered Species Act, §4, or its designated critical habitat.(b) An active disposal unit shall not restrict the flow of the 100-year flood nor be located within the 100-year floodway.(c) When a surface disposal site is located in a seismic impact zone, each disposal unit in that site shall be designed to withstand the maximum recorded horizontal ground-level acceleration.(d) An active disposal unit shall be located 60 meters or more from a fault that has displacement in Holocene time, unless otherwise approved by the executive director or commission.(e) An active disposal unit shall not be located in an unstable area.(f) An active disposal unit shall not be located in a wetland except as provided in a permit issued under the federal Clean Water Act, §402 or §404.(g) Runoff from an active disposal unit shall be collected and disposed in accordance with discharge permit requirements and any other applicable requirements. The runoff collection system for an active disposal unit shall have the capacity to handle runoff from a 25-year, 24-hour rainfall event.(h) The leachate collection system for an active disposal unit that has a liner and leachate collection system shall be operated and maintained during the period the disposal unit is active and for three years after the disposal unit closes.(i) Leachate from an active disposal unit that has a liner and leachate collection system shall be collected and disposed in accordance with the applicable requirements during the period the disposal unit is active and for three years after the disposal unit closes.(j) When a cover is placed on an active disposal unit, the concentration of methane gas in air in any structure within the surface disposal site shall not exceed 25% of the lower explosive limit for methane gas during the period that the disposal unit is active and the concentration of methane gas in air at the property line of the surface disposal site shall not exceed the lower explosive limit for methane gas during the period that the disposal unit is active. When a final cover is placed on a disposal unit at closure, the concentration of methane gas in air in any structure within the surface disposal site shall not exceed 25% of the lower explosive limit for methane gas for three years after the disposal unit closes and the concentration of methane gas in air at the property line of the surface disposal site shall not exceed the lower explosive limit for methane gas for three years after the disposal unit closes. On a case by case basis, the executive director may consider exclusion from these requirements.(k) A food crop, a feed crop, or a fiber crop shall not be grown on an active disposal unit, unless the owner/operator of the surface disposal site demonstrates to the executive director that through additional management practices, human health and the environment are protected from any reasonably anticipated adverse effects of metals in sewage sludge and/or biosolids when crops are grown.(l) Domestic livestock shall not be grazed on an active disposal unit, unless the owner/operator of the surface disposal site demonstrates to the executive director that through additional management practices, human health and the environment are protected from any reasonably anticipated adverse effects of metals in sewage sludge and/or biosolids when domestic livestock are grazed.(m) Public access to a surface disposal site shall be restricted during the period that the surface disposal site contains an active disposal unit and for a period of three years after the last active disposal unit in the surface disposal site closes. The means of restricting access to a surface disposal site shall be effective with consideration of the location of the site and adjacent land use(s).(1) The permit application shall include an explanation of the means for restricting access to a surface disposal site.(2) The executive director shall include, as a condition of the proposed permit, specific requirements for the means of restricting access to a surface disposal site.(n) Sewage sludge and/or biosolids placed on an active disposal unit must not contaminate an aquifer. Results of a groundwater monitoring program developed by a licensed professional geoscientist or licensed professional engineer or a certification by a licensed professional geoscientist or licensed professional engineer shall be used to demonstrate that sewage sludge and/or biosolids placed on an active disposal unit does not contaminate an aquifer. The results or certification shall be signed, sealed, and dated by the licensed professional geoscientist or licensed professional engineer preparing the results or certification.</content><note type="source"><p>Source Note: The provisions of this §312.64 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective September 1, 2003, 28 TexReg 6300; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scC/s312.65"><num value="312.65">§312.65</num><heading>Operational Standards--Pathogen and Vector Attraction</heading><content>(a) Pathogen reduction for biosolids and/or sewage sludge (other than domestic septage). The pathogen reduction requirements in §312.82(a) or (b)(1)(A) and (2) of this title (relating to Pathogen Reduction) shall be met when sewage sludge and/or biosolids are placed on an active disposal unit, unless the vector attraction reduction requirements in §312.83(b)(11) of this title (relating to Vector Attraction Reduction) are met.(b) Pathogen reduction for domestic septage. The pathogen reduction requirement in §312.82(c)(2) of this title shall be met when domestic septage is placed on an active disposal unit.(c) Vector attraction reduction for biosolids and/or sewage sludge (other than domestic septage). One of the alternatives for vector attraction reduction in §312.83(b)(1) - (11) of this title shall be met when sewage sludge and/or biosolids are placed on an active disposal unit.(d) Vector attraction reduction for domestic septage. The vector attraction reduction requirement in §312.83(b)(12) of this title shall be met when domestic septage is placed on an active disposal unit.</content><note type="source"><p>Source Note: The provisions of this §312.65 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scC/s312.66"><num value="312.66">§312.66</num><heading>Frequency of Monitoring</heading><content>(a) Biosolids and/or sewage sludge (other than domestic septage). (1) When required by this subchapter, the frequency of monitoring for the metals in Table 6 and Table 7 of §312.63(a) and (b) of this title (relating to Metal Limits), the pathogen density requirements in §312.82(a) and (b) of this title (relating to Pathogen Reduction), and the vector attraction reduction requirements in §312.83(b)(1) - (8) of this title (relating to Vector Attraction Reduction), for sewage sludge and/or biosolids placed on an active disposal unit shall be the frequency in Table 8 of this paragraph. Attached Graphic(2) The executive director or commission may increase or decrease the frequency of monitoring required in paragraph (1) of this subsection after the sewage sludge and/or biosolids are monitored for two years at the frequency in Table 8 in paragraph (1) of this subsection. The increase in frequency of monitoring should only increase to the next highest frequency for each two-year period and then may be lowered in the same manner. In no case shall the frequency of monitoring be less than the frequency required in Table 8 in paragraph (1) of this subsection if sewage sludge and/or biosolids are placed on an active disposal unit. (b) If the vector attraction reduction requirements in §312.83(b)(12) of this title are met when domestic septage is placed on an active disposal unit, each individual container of domestic septage shall be monitored for compliance with those requirements. (c) Air in structures within a surface disposal site and at the property line of the surface disposal site shall be monitored continuously for methane gas during the period the surface disposal site contains an active disposal unit on which the sewage sludge and/or biosolids are covered and for three years after a disposal unit closes if a final cover is placed on the sewage sludge and/or biosolids.</content><note type="source"><p>Source Note: The provisions of this §312.66 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scC/s312.67"><num value="312.67">§312.67</num><heading>Recordkeeping</heading><content>(a) Biosolids and/or Sewage sludge (other than domestic septage).(1) The person who prepares the sewage sludge and/or biosolids shall develop the following information and shall retain the information for five years.(A) The concentration of each metal listed in Table 6 of §312.63(a) of this title (relating to Metal Limits) in the sewage sludge and/or biosolids.(B) The following certification statement: "I certify, under penalty of law, that the management practices in 30 TAC §312.64; the pathogen requirements in (insert the citation to the specific pathogen reduction requirements that are met from 30 TAC §312.82) and the vector attraction reduction requirements in (insert the citation to the specific vector attraction reduction requirements that are met from 30 TAC §312.83(b)) when one of those requirements is met) have been met. This determination has been made under my direction and supervision in accordance with the system designed to assure that qualified personnel properly gather and evaluate the information used to determine that the (specific requirements for pathogen and vector attraction reduction (when appropriate)) have been met. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment."(C) A description of how the pathogen reduction requirements in §312.82(a) of this title (relating to Pathogen Reduction) are met, when required.(D) A description of how one of the vector attraction reduction requirements in §312.83(b) of this title (relating to Vector Attraction Reduction) are met, when required.(2) The owner/operator of the surface disposal site shall develop the following information and shall retain that information for five years.(A) The concentration of each metal listed in Table 7 of §312.63(b) of this title in the sewage sludge and/or biosolids.(B) The following certification statement: "I certify, under penalty of law, that the management practices in 30 TAC §312.64 and the vector attraction reduction requirements in (insert the citation to the specific requirements that are met from 30 TAC §312.83(b)) have been met. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the management practices (and specific requirements for vector attraction reduction (when appropriate)) have been met. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment."(C) A description of how the management practices in §312.64 of this title (relating to Management Practices) are met.(D) A description of how one of the vector attraction reduction requirements in §312.83 of this title are met when required.(b) Domestic septage.(1) The person who places domestic septage on a surface disposal site shall develop the following information and shall retain the information for five years.(A) The following certification statement: "I certify, under penalty of law, that the vector attraction reduction requirements in 30 TAC §312.83(b)(12) have been met. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the vector attraction reduction requirements have been met. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment."(B) A description of how the vector attraction reduction requirements in §312.83(b)(12) of this title are met. The record shall include the date and time of alkali addition, the pH after alkali addition, the time after 30 minutes of the alkali addition, the pH after 30 minutes.(2) The owner/operator of the surface disposal site shall develop the following information and shall retain that information for five years.(A) The following certification statement: "I certify, under penalty of law, that the management practices in 30 TAC §312.64 and the vector attraction reduction requirements in (insert the citation to the specific vector attraction reduction requirements that are met from 30 TAC §312.83) have been met. This determination has been made under my direction and supervision in accordance with the system designed to ensure that qualified personnel properly gather and evaluate the information used to determine that the management practices (and vector attraction reduction requirements (when appropriate) have been met. I am aware that there are significant penalties for false certification including the possibility of fine and imprisonment."(B) A description of how the management practices in §312.64 of this title are met.(C) A description of how one of the vector attraction reduction requirements in §312.83 of this title are met when required.</content><note type="source"><p>Source Note: The provisions of this §312.67 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scC/s312.68"><num value="312.68">§312.68</num><heading>Reporting</heading><content>All facilities regulated under this subchapter shall submit the information required in §312.67(a) of this title (relating to Recordkeeping) to the executive director by September 30th each year (reporting period September 1st of the previous year to August 31st of the current year).</content><note type="source"><p>Source Note: The provisions of this §312.68 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c312/scD"><num value="D">SUBCHAPTER D</num><heading>PATHOGEN AND VECTOR ATTRACTION REDUCTION</heading><section identifier="/us/state/tx/tac/t30/p1/c312/scD/s312.81"><num value="312.81">§312.81</num><heading>Scope</heading><content>(a) This subchapter contains the pathogen reduction requirements that must be met for biosolids to be classified either Class A, Class AB, or Class B.(b) This subchapter contains the site restrictions for the land on which Class B biosolids, with respect to pathogens, are either land applied for beneficial use or placed on an active disposal unit.(c) This subchapter contains the pathogen reduction requirements for domestic septage applied to agricultural land, forest, or a reclamation site for beneficial use and the pathogen reduction requirements for domestic septage placed on an active disposal unit.(d) This subchapter contains the site restrictions for the land on which domestic septage is applied for beneficial use or placed on an active disposal unit.(e) This subchapter contains the vector attraction reduction requirements for biosolids and domestic septage that are land applied for beneficial use or placed on an active disposal unit.</content><note type="source"><p>Source Note: The provisions of this §312.81 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scD/s312.82"><num value="312.82">§312.82</num><heading>Pathogen Reduction</heading><content>(a) Class A and Class AB biosolids. (1) Compliance requirements--Class A and Class AB. (A) For biosolids to be classified as Class AB, with respect to pathogens, the requirements in subparagraphs (C) and (D) of this paragraph and the requirements of one of the alternatives listed in paragraph (2) of this subsection must be met. (B) For biosolids to be classified as Class A, with respect to pathogens, the requirements in subparagraphs (C) and (D) of this paragraph and the requirements of one of the alternatives listed in paragraph (3) of this subsection must be met. Biosolids that meet the requirements of subparagraph (A) of this paragraph may be classified a Class A biosolids if a variance request is submitted in writing that is supported by substantial documentation demonstrating equivalent methods for reducing odors and written approval is granted by the executive director. The executive director may deny the variance request or revoke an approved variance if it is determined that the variance may potentially endanger human health or the environment or create nuisance odor conditions. (C) The requirements of the chosen alternative for pathogen reduction from paragraphs (2) and (3) of this subsection must be met prior to or at the same time as the vector attraction reduction requirements, except the requirements in §312.83(b)(6) - (8) of this title (relating to Vector Attraction Reduction). (D) Either the density of fecal coliform in the biosolids must be less than 1,000 Most Probable Number per gram of total solids (dry weight basis) or the density of Salmonella (sp. bacteria) in the biosolids must be less than three Most Probable Number per four grams of total solids (dry weight basis) at the time the biosolids are used or disposed of, at the time the biosolids are prepared for sale or given away in a bag or other container for land application, or at the time the biosolids or material derived from biosolids are prepared to meet the requirements in §312.41(b), (c), (e), or (f) of this title (relating to Applicability). (2) Compliance alternatives--Class AB. (A) Alternative 2. The temperature and pH of the biosolids must be maintained at specific values for specific periods of time. (i) The pH of the biosolids must be raised to above 12 and must remain above 12 for 72 hours. (ii) The temperature of the biosolids must be above 52 degrees Celsius for 12 hours or longer during the period that the pH of the biosolids is above 12. (iii) At the end of the 72-hour period during which the pH of the biosolids is above 12, the biosolids must be air dried to achieve a percent solids in the biosolids greater than 50%. (B) Alternative 3. The biosolids must be analyzed prior to pathogen treatment to determine whether the biosolids contains enteric viruses and viable helminth ova. (i) When the density of enteric viruses in the biosolids prior to pathogen treatment is less than one Plaque-forming Unit per four grams of total solids (dry weight basis), the biosolids are Class AB with respect to enteric viruses until the next monitoring episode for the biosolids. (ii) When the density of enteric viruses in the biosolids prior to pathogen treatment is equal to or greater than one Plaque-forming Unit per four grams of total solids (dry weight basis), the biosolids are Class AB with respect to enteric viruses when the density of enteric viruses in the biosolids after pathogen treatment is less than one Plaque-forming Unit per four grams of total solids (dry weight basis) and when the values or ranges of values for the operating parameters for the pathogen treatment process that produces the biosolids that meet the enteric virus density requirement are documented. (iii) After the enteric virus reduction in clause (ii) of this subparagraph is demonstrated for the pathogen treatment process, the biosolids continue to be Class AB with respect to enteric viruses when the values for the pathogen treatment process operating parameters are consistent with the values or ranges of values documented in clause (ii) of this subparagraph. (iv) When the density of viable helminth ova in the biosolids prior to pathogen treatment is less than one per four grams of total solids (dry weight basis), the biosolids are Class AB with respect to viable helminth ova until the next monitoring episode for the biosolids. (v) When the density of viable helminth ova in the biosolids prior to pathogen treatment is equal to or greater than one per four grams of total solids (dry weight basis), the biosolids are Class AB with respect to viable helminth ova when the density of viable helminth ova in the biosolids after pathogen treatment is less than one per four grams of total solids (dry weight basis) and when the values or ranges of values for the operating parameters for the pathogen treatment process that produces the biosolids that meet the viable helminth ova density requirement are documented. (vi) After the viable helminth ova reduction in clause (v) of this subparagraph is demonstrated for the pathogen treatment process, the biosolids continue to be Class AB with respect to viable helminth ova when the values for the pathogen treatment process operating parameters are consistent with the values or ranges of values documented in clause (v) of this subparagraph. (C) Alternative 4. The biosolids must be analyzed prior to pathogen treatment to determine whether the biosolids contain enteric viruses and viable helminth ova. (i) The density of enteric viruses in the biosolids must be less than one Plaque-forming Unit per four grams of total solids (dry weight basis) at the time the biosolids are used or disposed of, at the time the biosolids are prepared for sale or given away in a bag or other container for land application, or at the time the biosolids or material derived from biosolids are prepared to meet the requirements in §312.41(b), (c), (e), or (f) of this title. (ii) The density of viable helminth ova in the biosolids must be less than one per four grams of total solids (dry weight basis) at the time the biosolids are used or disposed of, at the time the biosolids are prepared for sale or given away in a bag or other container for land application, or at the time the biosolids or material derived from biosolids are prepared to meet the requirements in §312.41(b), (c), (e), or (f) of this title. (3) Compliance alternatives--Class A. (A) Alternative 1. The temperature of the biosolids must be maintained at a specific value for a specific period of time. (i) When the percent solids of the biosolids are 7.0% or higher, the temperature of the biosolids must be 50 degrees Celsius or higher; the time period must be 20 minutes or longer; and the temperature and time period must be determined using Equation D.1 of this clause, except when small particles of biosolids are heated by either warmed gases or an immiscible liquid. Attached Graphic(ii) When the percent solids of the biosolids are 7.0% or higher and small particles of biosolids are heated by either warmed gases or an immiscible liquid, the temperature of the biosolids must be 50 degrees Celsius or higher, the time period must be 15 seconds or longer, and the temperature and time period must be determined using Equation D.1 in clause (i) of this subparagraph. (iii) When the percent solids of the biosolids is less than 7.0% and the time period is at least 15 seconds, but less than 30 minutes, the temperature and time period must be determined using the Equation D.1 in clause (i) of this subparagraph. (iv) When the percent solids of the biosolids is less than 7.0%; the temperature of the biosolids is 50 degrees Celsius or higher; and the time period is 30 minutes or longer, the temperature and time period must be determined using Equation D.2 in this clause. Attached Graphic(B) Alternative 5 (Processes to Further Reduce Pathogens (PFRP)). Biosolids must be treated in one of the PFRP described in 40 Code of Federal Regulations (CFR) Part 503, Appendix B. (C) Alternative 6 (PFRP Equivalent). Biosolids must be treated in a process that has been approved by the United States Environmental Protection Agency (EPA) as being equivalent to those in subparagraph (B) of this paragraph. (b) Class B Biosolids. (1) Compliance requirements--Class B. (A) For biosolids to be classified as Class B with respect to pathogens, the requirements in subparagraphs (B) and (C) of this paragraph must be met. As an alternative for biosolids to be classified as Class B, the requirements of subparagraph (B) of this paragraph and paragraph (2) of this subsection must be met. (B) The site restrictions in paragraph (3) of this subsection must be met when Class B biosolids, with respect to pathogens, are land applied. (C) A minimum of seven representative samples of the biosolids must be collected within 48 hours of the time that the biosolids are used or disposed of during each monitoring episode for the biosolids. The geometric mean of the density of fecal coliform for the samples collected must be less than either 2,000,000 Most Probable Number per gram of total solids (dry weight basis) or 2,000,000 Colony-forming Units per gram of total solids (dry weight basis). (2) Processes to Significantly Reduce Pathogens (PSRP) compliance alternatives--Class B. Biosolids must be treated in one of the PSRP described in 40 CFR Part 503, Appendix B, or must be treated by an equivalent process approved by the EPA, so long as all of the following requirements are met by the biosolids generator. (A) Prior to use or disposal, all the biosolids must have been generated from a single location, except as provided in subparagraph (F) of this paragraph. (B) An independent Texas licensed professional engineer must make a certification to the biosolids generator that the wastewater treatment facility generating the biosolids is designed to achieve one of the PSRP at the permitted design loading of the facility. The certification need only be repeated if the design loading of the facility is increased. The certification must include a statement indicating that the design meets all the applicable standards specified in 40 CFR Part 503, Appendix B. (C) Prior to any off-site transportation or on-site use or disposal of any biosolids generated at a wastewater treatment facility, the licensed operator of the wastewater treatment facility or other responsible official who manages the PSRP at the wastewater treatment facility for the permittee, shall certify that the biosolids underwent at least the minimum operational requirements necessary in order to meet one of the PSRP. The acceptable processes and the minimum operational and recordkeeping requirements must be in accordance with established EPA final guidance. (D) All certification records and operational records describing how the requirements of this paragraph were met must be kept by the generator for a minimum of three years and be available for inspection by executive director staff for review. (E) In lieu of a generator obtaining a certification as specified in subparagraph (B) of this paragraph, the executive director will accept from the EPA a finding of equivalency to the defined PSRP. (F) If the biosolids are generated from a mixture of sources, resulting from a person who prepares biosolids from more than one wastewater treatment facility, the resulting derived product must meet one of the PSRP, and meet the certification, operation, and recordkeeping requirements of this paragraph. (3) Site restrictions. (A) Food crops with harvested parts totally above the land surface that touch the biosolids/soil mixture must not be harvested from the land for at least 14 months after land application of biosolids. (B) Food crops with harvested parts below the land surface must not be harvested for at least 20 months after land application of biosolids when the biosolids remain on the land surface for four months or longer prior to incorporation into the soil. (C) Food crops with harvested parts below the land surface must not be harvested for at least 38 months after land application of biosolids when the biosolids remain on the land surface for less than four months prior to the incorporation into the soil. (D) Food crops, feed crops, and fiber crops must not be harvested for at least 30 days after land application of biosolids. (E) Domestic livestock must not be allowed to graze on the land for at least 30 days after land application of biosolids. (F) Turf crops grown on land where biosolids are applied may not be harvested for at least one year after land application of biosolids when the harvested turf is placed on either land with a high potential for public exposure or a lawn. (G) Public access to land with a high potential for public exposure must be restricted for at least one year after land application of biosolids. (H) Public access to land with a low potential for public exposure must be restricted for at least 30 days after land application of the biosolids. (c) Domestic septage. (1) The site restrictions in subsection (b)(3) of this section must be met if domestic septage is land applied to agricultural land, forest, or a reclamation site. (2) The pH of domestic septage land applied to agricultural land, forest, or a reclamation site must be raised to 12 or higher by alkali addition and, without the addition of more alkali, must remain at 12 or higher for a period of 30 minutes.</content><note type="source"><p>Source Note: The provisions of this §312.82 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective October 20, 2005, 30 TexReg 6743; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scD/s312.83"><num value="312.83">§312.83</num><heading>Vector Attraction Reduction</heading><content>(a) Compliance requirements.(1) One of the vector attraction reduction requirements in subsection (b)(1) - (10) of this section shall be met when bulk biosolids are land applied to agricultural land, forest, a public contact site, or a reclamation site.(2) One of the vector attraction reduction requirements in subsection (b)(1) - (8) of this section shall be met when bulk biosolids are applied to a lawn or home garden, or are sold or given away in a bag or other container.(3) One of the vector attraction reduction requirements in subsection (b)(1) - (11) of this section shall be met when biosolids are placed on an active disposal unit.(4) One of the vector attraction reduction requirements in subsection (b)(9), (10), or (12) of this section shall be met when domestic septage is applied to agricultural land, forest, or a reclamation site.(5) One of the vector attraction reduction requirements in subsection (b)(9) - (12) of this section shall be met when domestic septage is placed on an active disposal unit.(b) Compliance alternatives.(1) The mass of volatile solids in the biosolids shall be reduced by a minimum of 38%.(2) If anaerobically digested biosolids cannot meet the 38% volatile solids reduction requirement in paragraph (1) of this subsection, vector attraction reduction can be demonstrated by digesting a portion of the previously digested biosolids anaerobically in a laboratory in a bench-scale unit for 40 additional days at a temperature between 30 and 37 degrees Celsius. If, at the end of the 40 days, the volatile solids in the biosolids at the beginning of that period is reduced by less than 17%, vector attraction reduction is achieved.(3) If aerobically digested biosolids cannot meet the 38% volatile solids reduction requirement in paragraph (1) of this subsection, vector attraction reduction can be demonstrated by digesting a portion of the previously digested biosolids that has a percent solids of 2.0% or less aerobically in a laboratory in a bench-scale unit for 30 additional days at 20 degrees Celsius. If, at the end of the 30 days, the volatile solids in the biosolids at the beginning of that period is reduced by less than 15%, vector attraction reduction is achieved.(4) The specific oxygen uptake rate (SOUR) for biosolids treated in an aerobic process shall be equal to or less than 1.5 milligrams of oxygen per hour per gram of total solids (dry weight basis) at a temperature of 20 degrees Celsius.(5) Biosolids shall be treated in an aerobic process for 14 days or longer. During that time, the temperature of the biosolids shall be higher than 40 degrees Celsius and the average temperature of biosolids shall be higher than 45 degrees Celsius.(6) The pH of biosolids shall be raised to 12 or higher by alkali addition and, without the addition of more alkali, shall remain at 12 or higher for two hours and then remain at a pH of 11.5 or higher for an additional 22 hours.(7) The percent solids of biosolids that do not contain unstabilized solids generated in a primary wastewater treatment process shall be equal to or greater than 75% based on the moisture content and total solids prior to mixing with other materials.(8) The percent solids of biosolids that contains unstabilized solids generated in a primary wastewater treatment process shall be equal to or greater than 90% based on the moisture content and total solids prior to mixing with other materials.(9) Biosolids shall be injected below the land surface. No significant amount of the biosolids shall be present on the land surface within one hour after the biosolids are injected. If the biosolids that are injected below the land surface are Class A or Class AB with respect to pathogens, as described in §312.82 of this title (relating to Pathogen Reduction), the biosolids shall be injected below the land surface within eight hours after the biosolids are discharged from the pathogen treatment process.(10) Biosolids applied to the land surface or placed on a surface disposal site shall be incorporated into the soil within six hours after application or placement on the land. If the biosolids that are incorporated into the soil are Class A or Class AB with respect to pathogens, as described in §312.82 of this title, the biosolids shall be applied to or placed on the land within eight hours after the biosolids are discharged from the pathogen treatment process.(11) Biosolids placed on an active disposal unit shall be covered with soil or other material at the end of each operating day.(12) The pH of domestic septage shall be raised to 12 or higher by alkali addition and, without the addition of more alkali, shall remain at 12 or higher for 30 minutes.</content><note type="source"><p>Source Note: The provisions of this §321.83 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective October 2, 2014, 39 TexReg 7756; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c312/scE"><num value="E">SUBCHAPTER E</num><heading>GUIDELINES AND STANDARDS FOR SLUDGE INCINERATION</heading><section identifier="/us/state/tx/tac/t30/p1/c312/scE/s312.101"><num value="312.101">§312.101</num><heading>Incineration</heading><content>Except to the extent that they are less stringent than the Texas Water Code or the rules of the commission, 40 Code of Federal Regulations Part 503, Subpart E, which are in effect as of September 1, 1993, as amended, are adopted by reference.</content><note type="source"><p>Source Note: The provisions of this §312.101 adopted to be effective August 19, 1993, 18 TexReg 5216.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c312/scF"><num value="F">SUBCHAPTER F</num><heading>LAND APPLICATION, STORAGE, AND DISPOSAL OF WATER TREATMENT RESIDUALS</heading><section identifier="/us/state/tx/tac/t30/p1/c312/scF/s312.121"><num value="312.121">§312.121</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to establish minimum requirements that define the acceptable management of water treatment residuals. These requirements apply as specified in §312.2 of this title (relating to Applicability).(b) The following term, when used in this subchapter, shall have the following meaning, unless the context clearly indicates otherwise. Land application unit is an area where water treatment residuals are applied onto or incorporated into the soil surface for disposal, where the disposal occurs within five feet of the land surface.(c) When water treatment residuals are mixed with sewage sludge, biosolids, or domestic septage or when water treatment residuals are placed on land for disposal along with sewage sludge, biosolids, or domestic septage, it is subject to all applicable requirements of sewage sludge, biosolids, or domestic septage, as specified in this chapter.</content><note type="source"><p>Source Note: The provisions of this §312.121 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scF/s312.122"><num value="312.122">§312.122</num><heading>Registrations and Permits</heading><content>(a) A permit shall be required before any disposal of water treatment residuals in a monofill. The requirements for applications, permits, permit conditions, and actions by the commission shall be in accordance with Chapter 305 of this title (relating to Consolidated Permits). Applications for permits will be processed in accordance with Chapter 281 of this title (relating to Applications Processing). Disposal of water treatment residuals in a landfill is regulated by Chapter 330 of this title (relating to Municipal Solid Waste).(b) Any person who disposes of water treatment residuals in a land application unit, surface impoundment, or waste pile shall apply for registration on a form approved by the executive director. Before issuing a registration, the executive director will review the application to determine whether the proposed activity meets the requirements of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §312.122 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective October 20, 2005, 30 TexReg 6743; amended to be effective April 23, 2020, 45 Texeg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scF/s312.123"><num value="312.123">§312.123</num><heading>General Requirements</heading><content>(a) No person shall land apply water treatment residuals except in accordance with the requirements in this subchapter.(b) The person who land applies water treatment residuals shall obtain information needed to comply with the requirements in this subchapter.(c) If a water treatment plant operator provides bulk water treatment residuals to a person who land applies the water treatment residuals, the water treatment plant operator shall provide the person who land applies the water treatment residuals notice and necessary information to comply with the requirements in this subchapter.(d) If a water treatment plant operator provides water treatment residuals to a person who prepares the water treatment residuals for land application, the water treatment plant operator shall provide the person who prepares the water treatment residuals for land application notice and necessary information to comply with the requirements in this subchapter.(e) The person who land applies water treatment residuals shall provide the owner or lease-holder of the land on which the water treatment residuals are land applied notice and necessary information to comply with the requirements in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §312.123 adopted to be effective October 13, 1995, 20 TexReg 7840; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scF/s312.124"><num value="312.124">§312.124</num><heading>Metal Limits</heading><content>(a) Water treatment residuals shall not be land applied if the concentration of any metal in the water treatment residuals exceeds the ceiling concentration for the metals in Table 1 of §312.43(b)(1) of this title (relating to Metal Limits).(b) The applicant shall determine the soil concentration of cadmium in accordance with §312.12(a)(1)(I) of this title (relating to Registrations) and demonstrate to the satisfaction of the executive director that the proposed cumulative cadmium loading will not result in a toxic condition or increase the toxicity of the existing soil.</content><note type="source"><p>Source Note: The provisions of this §312.124 adopted to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scF/s312.125"><num value="312.125">§312.125</num><heading>Management Practices</heading><content>(a) When water treatment residuals are land applied to agricultural land, forest, a public contact site, or a reclamation site for the production of food or feed crops, the requirements in either paragraph (1) or (2) of this subsection must be met.(1) Production of any food crops.(A) The pH of the residuals and soil mixture must be 6.5 or greater at the time of land application, except for water treatment residuals containing cadmium concentrations of 2 mg/kg (dry weight) or less.(B) The annual cadmium loading rate (ACLR), which is the annual application of cadmium from water treatment residuals, must not exceed 0.5 kilograms per hectare (kg/ha).(C) The cumulative application of cadmium from water treatment residuals must not exceed the levels in Table 9 of this subparagraph.Attached Graphic(2) Production of feed crops:(A) The pH of the water treatment residuals and soil mixture must be 6.5 or greater at the time of land application or at the time the crop is planted, whichever occurs later, and the pH must be maintained whenever feed crops are grown.(B) There must be a facility operating plan which demonstrates how the feed crops will be distributed to preclude ingestion by humans. The facility operating plan must describe the measure to be taken to safeguard against possible health hazards from cadmium entering the food-chain, which may result from alternative land uses.(C) Future property owners must be notified by a stipulation in the land record or property deed which states that the property has received water treatment residuals at high cadmium application rates and that food crops should not be grown, due to a possible health hazard.(b) Land application or disposal of water treatment residuals must not cause or contribute to the harm of a threatened or endangered species of plant, fish, or wildlife or result in the destruction or adverse modification of the critical habitat of a threatened or endangered species.(c) Water treatment residuals must not be land applied when the ground is flooded, frozen, or snow-covered to prevent the water treatment residuals from entering surface water in the state.(d) Water treatment residuals must be land applied at an annual whole application rate that is equal to or less than the agronomic rate for the crop. For land application to a reclamation site, the executive director may, on a case-by-case basis, authorize an annual whole application rate that exceeds the agronomic rate for the crop, for a specific time-period.(e) Water treatment residuals must be land applied or placed on an active disposal unit by a method and under conditions that prevent runoff of the residuals beyond the land application unit or surface disposal site and that protect the quality of the surface water and the soils in the unsaturated zone.(1) Water treatment residuals must be land applied or placed uniformly over the land application unit or active disposal unit.(2) Where runoff of water treatment residuals from the land application unit or surface disposal site is evident, the operator shall cease further application or disposal until the condition is corrected.(3) A land application unit or active disposal unit located in floodplains shall not restrict the flow of the base flood, reduce the temporary water storage capacity of the floodplain, or result in a washout of water treatment residuals, so as to pose a hazard to human life, wildlife, or land or water resources.(f) A land application unit or active disposal unit shall not contaminate an underground drinking water source.(g) Nuisance controls.(1) A land application unit or surface disposal site location must be selected, and the site operated in a manner to prevent public health nuisances.(2) Debris must be prevented from blowing or running off-site boundaries or into surface waters.(3) To prevent nuisance conditions from occurring, the operator shall:(A) minimize dust migration from the site and access roadways;(B) minimize offensive odors through incorporation of water treatment residuals into the soil or by taking some other type of preventative action; and(C) develop and implement best management practices (BMPs) to minimize off-site tracking of water treatment residuals when transporting the material to and from the land application unit, surface disposal site, or storage area. BMPs must also address removing tracked material, to the extent practicable, by the end of each day of operation at the site and either returning it to the site or otherwise disposing of it properly. The documented BMPs shall be retained by the operator and made readily available for review by the executive director.(h) A registration must specify the soil testing requirements for each land application unit.(1) The testing frequency must consider common agricultural methods of determining the crop nutrient needs, soil pH, phytotoxicity, and concentrations of metals regulated by this chapter.(2) The soil testing frequency for metals regulated by this chapter shall be once per five years or prior to submittal of a renewal application. Soil testing for metals regulated by this chapter is not required for portions of the authorized site where water treatment residuals have not been land applied since the last soil metals testing was performed. The executive director may require more frequent soil monitoring if metal loading into the soil is a threat to human health or the environment.</content><note type="source"><p>Source Note: The provisions of this §312.125 adopted to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scF/s312.126"><num value="312.126">§312.126</num><heading>Frequency of Monitoring</heading><content>(a) Water treatment residuals that are land applied shall be monitored for the metals listed in Table 1 of §312.43(b)(1) of this title (relating to Metal Limits) at the frequency specified in Table 10 of this subsection.Attached Graphic(b) After the water treatment residuals have been monitored for two years at the frequency shown in Table 10 of subsection (a) of this section, the executive director may reduce the monitoring frequency, but in no case shall the monitoring frequency be less than once per year when water treatment residuals are land applied. A request to reduce monitoring frequency must be submitted to the executive director with the sample results from the previous two years.(c) After the water treatment residuals have been monitored for two years at the frequency shown in Table 10 of subsection (a) of this section, the executive director may increase the monitoring frequency. An increase in monitoring frequency will be required where high metal concentrations are present in the water treatment residuals.</content><note type="source"><p>Source Note: The provisions of this §312.126 adopted to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scF/s312.127"><num value="312.127">§312.127</num><heading>Recordkeeping</heading><content>(a) A person who prepares the water treatment residuals for land application shall retain the sample results demonstrating compliance with Table 1 of §312.43(b)(1) of this title (relating to Metal Limits) for five years.(b) A person who derives material from water treatment residuals for land application shall retain the sample results demonstrating compliance with Table 1 of §312.43(b)(1) of this title for five years.(c) A person who land applies water treatment residuals meeting the requirements in §312.125(a)(1) of this title (relating to Management Practices) shall retain the following information indefinitely:(1) the concentration of cadmium in the water treatment residuals;(2) the amount of water treatment residuals land applied;(3) the number of acres where water treatments residuals were land applied;(4) the cumulative amount of cadmium in the water treatment residuals land applied to each site;(5) the background soil pH at the time of when water treatment residuals were land applied; and(6) the soil cation exchange capacity (CEC) in meq/100 grams.(d) A person who land applies water treatment residuals meeting the requirements in §312.125(a)(2) of this title shall retain the information required by §312.125(a)(2) of this title indefinitely.(e) A person who land applies water treatment residuals shall develop the following information and shall retain the information for five years:(1) the dates of harvesting; and(2) the amount harvested, excluding grazing.</content><note type="source"><p>Source Note: The provisions of this §312.127 adopted to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scF/s312.128"><num value="312.128">§312.128</num><heading>Annual Report</heading><content>A person who land applies or disposes of water treatment residuals shall submit a report to the executive director by September 30th of each year (reporting period September 1st of previous year to August 31st of the current year) which describes land application or disposal activities regulated under this subchapter. The report shall include, at a minimum, the registration or permit number of the land application unit or surface disposal site, the amount of water treatment residuals which have been land applied or disposed of during the reporting period, the information required by §312.127(a)(1) or (2)(B) of this title (relating to Recordkeeping), as applicable, and §312.127(e) of this title, as applicable. The information shall be submitted on forms furnished by the executive director. From the information provided, the executive director will assess an annual fee, in accordance with the requirements of §312.9 of this title (relating to Fee Program).</content><note type="source"><p>Source Note: The provisions of this §312.128 adopted to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scF/s312.129"><num value="312.129">§312.129</num><heading>Procedure to Determine the Annual Whole Application Rate for Water Treatment Residuals</heading><content>(a) This subsection contains the procedure used to determine the annual whole application rate (AWAR) for water treatment residuals that does not cause the annual cadmium loading rates (ACLR) in §312.125(a)(1) of this title (relating to Management Practices) to be exceeded.(b) Determine the AWAR using Equation F.1 of this subsection. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §312.129 adopted to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scF/s312.130"><num value="312.130">§312.130</num><heading>Storage of Water Treatment Residuals</heading><content>(a) Written authorization from the executive director is required to store water treatment residuals prior to disposal or land application.(b) The storage area must be operated and maintained to prevent surface water runoff and to prevent a release to groundwater.(c) Except as authorized by subsection (d) of this section, storage of water treatment residuals must not exceed two years.(d) Storage may be increased to a period of up to five years with prior approval from the executive director and when the person who stores the water treatment residuals demonstrates that the land on which the water treatment residuals remain is not an active disposal unit. The demonstration shall include the following information, which shall be reviewed and approved by the executive director and retained by the person who stores the water treatment residuals for the period that the water treatment residuals remain on the land:(1) the name and address of the person who prepared the water treatment residuals;(2) the name and address of the person who either owns the land or leases the land;(3) the location of the land, by latitude and longitude, street address if available, and boundary shown on a 7 1/2-minute quadrangle United States Geological Survey map;(4) an explanation of why water treatment residuals need to be stored for longer than two years; and(5) the date by which the water treatment residuals will be used or disposed of. This date must correspond to a storage period of less than five years.</content><note type="source"><p>Source Note: The provisions of this §312.130 adopted to be effective April 23, 2020, 45 TexReg 2542.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c312/scG"><num value="G">SUBCHAPTER G</num><heading>TRANSPORTERS AND TEMPORARY STORAGE PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c312/scG/s312.141"><num value="312.141">§312.141</num><heading>Transporters--Applicability and Responsibility</heading><content>(a) Rules contained in this subchapter establish standards applicable to persons, including municipalities, state and federal agencies, collecting, generating and/or transporting biosolids/sewage sludge, water treatment residuals, domestic septage, chemical toilet waste, grit trap waste, or grease trap waste. This chapter also establishes standards applicable to persons and facilities who receive waste from transporters regulated under this subchapter. Methods of transportation shall include measures utilizing roadway, rail, and water.(b) Transporters of waste subject to control under this subchapter shall only transport the waste types specified in subsection (a) of this section. Each transporter shall take reasonable precautions to ensure that waste handled in accordance with rules contained in this subchapter is not hazardous waste, as defined in Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste).(c) The processing of wastes is not authorized under this subchapter, except for domestic septage under §312.144(e) of this title (relating to Transporters--Vehicle and Equipment).(d) These rules are not applicable to persons transporting biosolids that do not exceed the metal concentration limits in §312.43(b)(3) (Table 3) of this title (relating to Metal Limits), meets the requirements in §312.82(a) of this title (relating to Pathogen Reduction), meets one of the requirements in §312.83(b)(1) - (8) of this title (relating to Vector Attraction Reduction), and has been approved for marketing and distribution as authorized in Subchapter B of this chapter (relating to Land Application and Storage of Biosolids and Domestic Septage).</content><note type="source"><p>Source Note: The provisions of this §312.141 adopted to be effective September 28, 1994, 19 TexReg 7182; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scG/s312.142"><num value="312.142">§312.142</num><heading>Transporter Registration</heading><content>(a) Persons who plan to transport biosolids/sewage sludge, water treatment residuals, domestic septage, chemical toilet waste, grit trap waste, or grease trap waste regulated under this subchapter shall apply for registration with the commission on forms furnished by the executive director and receive a registration from the executive director prior to commencing operations.(b) Failure to submit a complete and accurate application or other information requested by the executive director will result in the return of the application to the applicant. Applications for transportation registrations shall include:(1) a complete, signed application form(s) and appropriate copies provided;(2) the verified legal status of the applicant(s);(3) the signature of the applicant(s), checked against agency requirements, in accordance with §305.44 of this title (relating to Signatories to Applications);(4) the attachment of technical reports and supporting data required by the application; and(5) any other information as the executive director or the commission may reasonably require.(c) Persons who apply to the commission for registration and receive a registration shall maintain a current copy of the registration authorization, as annotated by the executive director with an assigned registration number, at their designated place of business and in each vehicle operated under that registration. This registration shall be produced and shown to the operator of the facility receiving the waste at the time of delivery.(d) The expiration date of the registration shall be August 31st of the year in which it expires. Registrations are required to be renewed biennially prior to the expiration date. Application for renewal shall be submitted by June 15th of the year in which the registration expires. Any registrant shall notify the executive director in writing within 15 days of cessation of operation and request that the registration be cancelled, and request all forms and reports needed to report waste hauled during the period of registration.(e) A new registration application is required to be submitted within 15 days after any of the following:(1) change in ownership of the operating entity; or(2) determination by the executive director that operations or management methods are no longer adequately described by the existing registration.(f) Transporters shall notify the executive director, by letter, within 15 days after any of the following changes of their operation, including, but not limited to:(1) the office or place of business is moved or its address or telephone number changes;(2) the name of the operating entity is changed;(3) a transporter plans to handle a waste not included in the existing registration;(4) a change in license plate numbers of registered vehicles, a new vehicle, and/or an existing vehicle removed from the fleet;(5) a transporter plans to haul waste to a location not included on the existing registration; or(6) a transporter plans to remove a location already included on the existing registration.(g) The commission may revoke or void a registration for cause as provided in §312.150 of this title (relating to Penalties). An opportunity for a formal hearing on the revocation may be requested by the registrant within 20 days after a Notice of Revocation has been sent from the executive director to the last known address of the registrant. If the registration is revoked or voided, a transporter shall not continue to transport the wastes regulated under this subchapter.(h) An applicant owing delinquent fees or an applicant who has failed to submit required reports will not be eligible to renew their registration to transport waste until all fees and reports are submitted and accepted by the executive director.(i) A registrant failing to submit the annual summary report by the date due is subject to payment of the maximum fees specified in §312.9(c) of this title (relating to Fee Program).(j) The commission issues authorization stickers for all registered motor transport vehicles and the fee per motor transport vehicle is $10.</content><note type="source"><p>Source Note: The provisions of this §312.142 adopted to be effective September 28, 1994, 19 TexReg 7182; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scG/s312.143"><num value="312.143">§312.143</num><heading>Transporters--Delivery Requirement and Full Pump-out Requirement</heading><content>(a) For in-state disposal, transporters shall deposit wastes at a facility designated by or acceptable to the generator where the owner or operator of the facility agrees to receive the wastes and the facility has written authorization by permit or registration issued by the executive director to receive wastes. In this regard, "authorization by the executive director" means the executive director or commission has given its approval by rule, permit, letter, or other document that identifies the individual facility or class of facilities to receive that specific waste or class of waste.(b) For out-of-state disposal, transporters shall deposit wastes at a facility designated by or acceptable to the generator where the owner or operator of the facility agrees to receive the wastes and the facility has obtained written authorization by permit or registration to receive wastes as required by the state where the facility is located.(c) Each grit trap and grease trap pumped shall be fully evacuated unless the trap volume is greater than the tank capacity on the vacuum truck in which case the transporter shall arrange for additional transportation capacity so that the trap is fully evacuated within a 24-hour period.</content><note type="source"><p>Source Note: The provisions of this §312.143 adopted to be effective September 28, 1994, 19 TexReg 7182; amended to be effective March 3, 1997, 22 TexReg 1811; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scG/s312.144"><num value="312.144">§312.144</num><heading>Transporters--Vehicle and Equipment</heading><content>(a) Marking and identification. Owners or operators of specially equipped vacuum pump trucks, tanks, or containers used for the collection and/or over-the-road transportation of wastes regulated under this subchapter shall prominently mark such trucks, tanks, or containers to show the following:(1) company name;(2) telephone number;(3) authorization stickers (motor vehicles only); and(4) the commission assigned registration number on both sides of the vehicles or receptacle.(A) The registration number shall be a minimum of two inches in height, in block numbers permanently affixed. The registration number must be clearly visible at a distance of 50 feet.(B) The company name and phone number, authorization stickers, and the registration number shall be removed from the trucks, tanks, or containers, by the registrant, when it is no longer authorized by the commission or leaves the control of the person(s) holding the registration.(b) Sanitation standards. All vehicles and equipment used for the collection and transportation of the wastes regulated under this subchapter shall be constructed, operated, and maintained to prevent loss of liquid or solid waste materials and to prevent health nuisance and safety hazards to operating personnel and the public. Collection vehicles and equipment shall be maintained in a sanitary condition to preclude nuisance conditions such as odors and insect breeding.(c) Mixing of incompatible wastes. Mixing of incompatible wastes within the same container is prohibited. Transporters shall not use the same container or pumping equipment to collect or transport incompatible waste without first emptying and cleaning the container and equipment of all previously handled wastes. For purposes of this subsection, incompatible waste are wastes which have different processing, storage, or disposal requirements. However, transporters may mix wastes with different characteristics provided the facility to which the waste is being transported is authorized to store, process, or dispose of such mixed wastes.(d) Site gauges. All closed vehicles, tanks, or containers used to transport liquid wastes regulated by this subchapter shall have sight gauges maintained in a manner which can be used to determine whether a vehicle is loaded and its approximate capacity. Gauges are not required to read in gallons or liters but shall show what percentage of the tank capacity is filled. An alternate method to measure actual volumes may be utilized with prior written approval from the Executive Director.(e) Septage transport. If domestic septage is transported to a land application unit,the transporter registrant shall keep records showing how the domestic septage transported meets the pathogen and vector attraction reduction requirements listed in §312.82(c) of this title (relating to Pathogen Reduction) and §312.83 of this title (relating to Vector Attraction Reduction). Copies of records pertaining to the pathogen and vector attraction reduction requirements shall be maintained on the vehicles for a minimum of one month and at the land application unit and transporter office for a minimum of five years. Transporters taking domestic septage to a processing facility for treatment are not required to keep records for pathogen and vector attraction reduction.(f) Discharge valves. All closed vehicles, tanks, or containers used to transport liquid wastes regulated by this subchapter shall prominently mark all discharge valves and ports. All discharge ports shall be visible and readily accessible.(g) Inspection. All transport vehicles shall include, but are not limited to, trucks, portable tanks, trailers, barges, or similar transport vehicles/receptacles and are subject to inspection by commission staff authorized by the executive director. If a transport vehicle fails the inspection, the authorization sticker and the commission assigned registration number are to be removed from the vehicle and that vehicle is not authorized to transport waste until the vehicle is re-inspected and passes.</content><note type="source"><p>Source Note: The provisions of this §312.144 adopted to be effective September 28, 1994, 19 TexReg 7182; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scG/s312.145"><num value="312.145">§312.145</num><heading>Transporters--Recordkeeping</heading><content>(a) Trip tickets. Persons who collect and transport waste subject to control under this subchapter shall maintain a record of each individual collection and deposit. Such records must be in the form of a trip ticket. Similar documentation may be used with written approval by the executive director. The trip ticket must include:(1) name, address, telephone number, and commission registration number of transporter;(2) name, signature (or electronic signature), address, and telephone number of the person who generated the waste and the date collected;(3) type and amount(s) of waste collected or transported;(4) name and signature(s) of responsible person(s) collecting, transporting, and depositing the waste;(5) date and place where the waste was deposited;(6) identification (permit or site registration number, location, and operator) of the facility where the waste was deposited;(7) name and signature (or electronic signature) of facility on-site representative acknowledging receipt of the waste and the amount of waste received; and(8) the volume of the grease and grit trap or the septic tank.(b) Maintenance of records and reporting.(1) Trip tickets. Trip tickets must be divided into five parts and records of trip tickets must be maintained as follows.(A) One part of the trip ticket must have the generator and transporter information completed and be given to the generator at the time of waste pickup.(B) The remaining four parts of the trip ticket must have all required information completely filled out and signed by the appropriate party before distribution of the trip ticket.(C) One part of the trip ticket must go to the receiving facility.(D) One part of the trip ticket must go to the transporter, who shall retain a copy of all trip tickets showing the collection and disposition of waste.(E) One copy of the trip ticket must be returned by the transporter to the person who generated the waste within 15 days after the waste is received at the disposal or processing facility.(F) One part of the trip ticket must go to the local authority, if needed.(2) Record retention. Copies of trip tickets must be retained for five years and be readily available for review by commission staff or be submitted to the executive director upon request.(3) Rail or barge transport. Persons who transport waste via rail or barge may use an alternate recordkeeping system, if approved by the executive director.(4) Reporting. By July 1st, transporters must submit to the executive director an annual summary of their activities for the previous period of June 1st through May 31st, showing the amounts and types of waste collected and delivered to each facility.(c) Discrepancies. A facility that receives waste must note any significant discrepancies on each copy of the trip ticket.(1) Trip ticket discrepancies are differences between the quantity or type of waste designated on the trip ticket, and the quantity or type of waste a facility actually received. Significant discrepancies in type are obvious differences that can be discovered by inspection or waste analysis. Significant discrepancies in quantity are:(A) for bulk weight, variations greater than 10% in weight; and(B) for liquid waste, any variation greater than 15% in gallons.(2) Upon discovering a significant discrepancy, the transporter must attempt to reconcile the discrepancy with the waste generator or owner or operator of the receiving facility (e.g., with telephone conversations). If the discrepancy is not resolved within 15 days after delivering the waste, the transporter must immediately submit to the executive director a letter describing the discrepancy and attempts to reconcile it, and a copy of the trip ticket.(d) Notification. A facility that receives waste from a transporter that cannot produce a registration acknowledgment under §312.142(c) of this title (relating to Transporter Registration) must notify the appropriate regional office of the commission within three days of the waste receipt of the transporter's failure to produce a current registration authorization.(e) Local ordinances. Where local ordinances require controls and records substantially equivalent to or more stringent than the requirements of subsection (a) of this section, transporters may use such controls and records to satisfy the commission's requirement under this section.</content><note type="source"><p>Source Note: The provisions of this §312.145 adopted to be effective September 28, 1994, 19 TexReg 7182; amended to be effective October 20, 2005, 30 TexReg 6743; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scG/s312.146"><num value="312.146">§312.146</num><heading>Transporters--Discharge or Spills</heading><content>In the event of a discharge or spill of waste during collection or transportation, the collector or transporter must take appropriate action to protect human health and the environment (e.g., notify local law enforcement and health authorities; dike the discharge area; clean up any waste discharge that occurs during transportation; or take such action as may be required or approved by federal, state, or local officials having jurisdiction so that the waste discharge no longer presents a human health or environmental problem). Transporters are responsible for reporting certain spills to the executive director in accordance with requirements of the State of Texas Oil and Hazardous Substance Spill Contingency Plan and the Texas Water Code, Chapter 26.039.</content><note type="source"><p>Source Note: The provisions of this §312.146 adopted to be effective September 28, 1994, 19 TexReg 7182; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scG/s312.147"><num value="312.147">§312.147</num><heading>Temporary Storage</heading><content>(a) Transporters who store waste in a mobile closed container (container on wheels) shall not store the waste for more than four days.(b) Transporters who temporarily store waste at a fixed or permanent site shall obtain approval in writing from the executive director prior to engaging in such activities. The storage site shall comply with the following standards.(1) The temporary storage of waste shall not exceed 30 days.(2) The use of lagoons and/or in-ground storage tanks are not authorized under the provision of this section.(3) If the waste is not stored in a closed vessel, the location of the storage site shall meet the buffer zone requirement in §312.44(d) of this title (relating to Management Practices).(4) The storage of waste shall not cause or contribute to the harm of a threatened or endangered species of plant, fish, or wildlife or result in the destruction or adverse modification of the critical habitat of a threatened or endangered species.(5) The waste shall be stored by a method and under conditions that prevent runoff and protect the quality of the surface water and groundwater.(6) The storage site shall not be located on land within a designated base flood zone (100-year floodplain).(7) A storage site location shall be selected, and the site operated in a manner to prevent public health nuisances. Where nuisance conditions exist, the operator shall take necessary action to abate such nuisances.(c) Recordkeeping. Transporters who store waste shall develop the following information and shall retain the information for five years:(1) the date, volume, and type of waste deposited into temporary storage facility;(2) the date, volume, and type of waste removed from temporary storage facility; and(3) the identification (permit or site registration number, location, and operator) of the facility where the waste removed from the temporary storage facility was deposited.</content><note type="source"><p>Source Note: The provisions of this §312.147 adopted to be effective September 28, 1994, 19 TexReg 7182; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scG/s312.148"><num value="312.148">§312.148</num><heading>Secondary Transportation of Waste</heading><content>Persons who engage in the secondary transportation of waste (meaning receiving waste from other transporters and transporting the waste to a disposal, beneficial use, or processing site) shall transfer the waste at a commission's registered or permitted Type V transfer station only.</content><note type="source"><p>Source Note: The provisions of this §312.148 adopted to be effective September 28, 1994, 19 TexReg 7182.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scG/s312.149"><num value="312.149">§312.149</num><heading>Out-of-State Transportation</heading><content>Persons who engage in the transportation of wastes (subject to regulation under this subchapter) from Texas to other states or from other states to Texas, or persons who collect or transport such waste in Texas but have their place of business in another state, shall comply with all the requirements for transporters contained in §§312.141 - 312.150 of this title (relating to Transporters and Temporary Storage Provisions). If such persons also engage in any activity of managing such wastes in Texas by storage, processing, beneficial use, or disposal, they shall follow the applicable requirements of this chapter for such activities.</content><note type="source"><p>Source Note: The provisions of this §312.149 adopted to be effective September 28, 1994, 19 TexReg 7182; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c312/scG/s312.150"><num value="312.150">§312.150</num><heading>Penalties</heading><content>Failure of a transporter to properly and correctly maintain records, trip tickets, or other documents; or failure of a transporter to submit to the executive director correct information on the annual summary report or on an application for registration by the required due date; or unauthorized discharges of sewage sludge, biosolids, water treatment residuals, domestic septage, chemical toilet waste, grit trap waste, or grease trap waste shall be sufficient cause for the commission to void the transporter's registration and authorization to transport such wastes. The commission may also take any other action authorized by law to secure compliance, including the assessment of administrative penalties or seeking of civil penalties as prescribed by law and the rules of the commission.</content><note type="source"><p>Source Note: The provisions of this §312.150 adopted to be effective September 28, 1994, 19 TexReg 7182; amended to be effective April 23, 2020, 45 TexReg 2542.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c317"><num value="317">CHAPTER 317</num><heading>DESIGN CRITERIA PRIOR TO 2008</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c317/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c317/sc/s317.1"><num value="317.1">§317.1</num><heading>General Provisions</heading><content>(a) Applicability and Purpose. This chapter applies to any wastewater collection system or wastewater treatment facility that collects, transports, treats, or disposes of wastewater, with final plans and technical specifications submitted on or before August 28, 2008, that is not subject to the requirements of Chapter 217 of this title (relating to Design Criteria for Domestic Wastewater Systems). Wastewater collection systems and wastewater treatment facilities that are subject to this chapter shall meet all requirements of these rules no later than 120 days after the effective date of this chapter. These design criteria are minimum requirements to be used for the comprehensive consideration of domestic sewage collection, treatment, or disposal systems and establish the minimum design criteria pursuant to existing state statutes pertaining to effluent quality necessary to meet state water quality standards. These criteria are intended to promote the design of facilities in accordance with good public health and water quality engineering practices. These criteria include the minimum requirements for a preliminary engineering report which provides the general engineering concepts underlying the proposed project as well as the final engineering report detailing the fully developed project along with related plans and specifications. All wastewater treatment facilities, treatment units, collection systems, and collection system units must be installed, operated, and maintained: to ensure the safety of the public and all individuals authorized to be in or around a wastewater treatment facility, treatment unit, collection system, or collection system unit; to function as described in the engineering report and the associated plans and specifications approved by the executive director; and to ensure continuous compliance with applicable statutory and regulatory requirements.(1) Authority for requirement. The Texas Water Code (TWC) prescribes the duties of the commission relating to the control of pollution including the review and approval of plans and specifications for sewage disposal systems. This authority is found in TWC, §§5.013, 12.081 - 12.083, 15.104, 15.114, 26.023, 26.034, 49.181 - 49.182, 54.024, and 51.333.(2) Review of plans and specifications. Plans and specifications shall meet the design criteria and the operation, maintenance, and safety requirements for the proposed project as provided by this chapter. Approval given by the executive director, or a participating municipality with review authority as provided for in paragraphs (5) and (6) of this subsection, shall not relieve the sewerage system owner or the design engineer of any liabilities or responsibilities with respect to the proper design, construction, or authorized operation of the project in accordance with applicable commission rules.(3) Submittal requirements.(A) "Sanitary sewer collection system projects," which will be constructed within the jurisdiction of a municipality which performs technical reviews of sanitary sewer collection system projects under TWC, §26.034, and which are not prepared by the staff of a municipality, need not be submitted to the agency for review. (B) "Sanitary sewer collection system projects," which are prepared by the staff of a municipality, which will be constructed within the jurisdiction of a municipality which performs technical reviews of sanitary sewer collection system projects under TWC, §26.034, and where the entire project falls into one or more of the categories outlined in clauses (i) - (iii) of this subparagraph, need not be submitted to the agency for review.(i) Any conventional gravity sewer collection system lines less than 1,500 linear feet in length which are extensions to existing systems where the existing system has been completed and in operation at least six months;(ii) Any duplex lift stations which have a firm pumping capacity of less than 100 gallons per minute; and(iii) Any conventional gravity sewer piping less than 12 inches in diameter.(C) "Domestic wastewater projects" which receive a technical review and approval from a state agency other than the commission need not be submitted to the agency for review, if: (i) the review is performed under the supervision of a professional engineer registered in the State of Texas, the review ensures that the project complies with this chapter, and the state agency has requested that the commission not perform technical reviews of a wastewater project or category of projects; or(ii) the state agency has been granted review authority in lieu of the commission under state law.(D) A summary transmittal letter shall be submitted, by certified mail, to the Wastewater Permits Section, and to the appropriate commission regional office, for all wastewater projects constructed in the State of Texas, which are not exempted from the commission's submittal requirements as detailed in subparagraph (A), (B), or (C) of this paragraph. If the executive director does not notify the person who submitted the summary that a review will occur, under subparagraph (E) of this paragraph, the project is deemed approved. The information in the summary shall be signed, dated, and sealed by a professional engineer registered in the State of Texas. All summaries shall include, at a minimum:(i) the name and address of the design firm; (ii) the name, phone number, and facsimile number of the design engineer;(iii) the county(s) in which the project will be located with an identifying name for the project;(iv) the name of the entity which proposes to own, operate, and maintain the project through its design life;(v) the permit name and permit number of the relevant wastewater treatment facility;(vi) a statement verifying that the plans and specifications are in substantial compliance with all the requirements of this chapter and which states that any deviations from the requirements are based on the best professional judgement of the registered professional engineer who prepared the project plans and specifications and final engineering design report; and(vii) a brief description of the project scope which includes the specifics of the project, a description of deviations from the requirements of this chapter, including the use of nonconforming or innovative technology, and an explanation of the reasons for such deviations.(E) Any project, for which a summary is submitted, is subject to review by the executive director. Factors to be used to determine whether a review will be performed include, but are not limited to, whether or not a non-conforming or innovative technology is being proposed, the stream segment in which the project is located, and the applicant's compliance record. If the executive director chooses to review a project, the design engineer will be notified in writing or by facsimile of the executive director's intent to review the project, within ten days of receipt of the summary. Upon receipt of the notification of intent to review, the design engineer shall submit to the executive director a complete set of plans and specifications and a complete final engineering design report. These submitted materials shall be sufficient to satisfy the executive director that the project is in compliance with this chapter. If the executive director reviews a project, any approval may be granted under paragraph (4) of this subsection. Construction may not commence until approval has been obtained.(F) A complete set of plans and specifications, the final version of such plans and specifications with engineer's certification, a complete engineering design report, all change orders and test results, a copy of the written summary submitted to the executive director, and any written approvals granted by the executive director, a municipality, or another state agency, shall be maintained and kept by the permittee, or for collection system projects, person(s) responsible for management of the collection system, for at least three years from the date the engineer certifies to the executive director that the project is complete. These materials shall be submitted to the executive director, another state agency, or municipality upon request. Such materials must be readily available for inspection by the executive director's staff upon request during regular business hours.(4) Types of approval. Regardless of the type of approval, constructed facilities when in operation are required to produce the quality of effluent specified in their discharge permit(s). The types of approvals described in subparagraphs (A) - (C) of this paragraph will be utilized by the commission or any other review authority. (A) Standard approval. Plans and specifications found to comply with all applicable parts of these criteria and to conform to commonly accepted sanitary engineering design practices shall be approved for construction.(B) Approvals of innovative and nonconforming technologies. (i) Technologies considered to be nonconforming or innovative include ones not conforming to or addressed in the design criteria of this chapter.(ii) If an approval for nonconforming or innovative technologies is requested, engineering proposals for processes, equipment, or construction materials not covered in these criteria shall be fully described in the submitted planning materials and the reasons for their selection clearly outlined. Processes considered to be nonconforming or innovative should also be supported by results of pilot or demonstration studies. Where similarly designed full scale processes exist and are known to have operated for a reasonable period of time under conditions similar to those suggested for the proposed design, performance data from these existing full scale facilities shall be required to be submitted to the executive director in addition to, or in lieu of, pilot or small scale demonstration studies. Any warranties or performance bond agreements offered by the process, equipment, or material manufacturers shall be fully described in the request.(iii) Approvals of processes, equipment, or construction materials which are considered to be innovative or nonconforming will be granted only in cases where the commission or review authority determines, after an engineering evaluation of the supporting information provided in the submitting engineer's design report, that the technology will not result in a threat to public health or the environment.(iv) The executive director or review authority may require the manufacturer or supplier to obtain and furnish evidence of an acceptable two-year performance bond from an approved surety which insures the performance of the innovative or nonconforming technology. The performance bond shall cover the cost of removal or abandonment of the innovative or nonconforming facility and equipment, replacement with previously agreed upon facilities or equipment, and all associated engineering fees necessary for the removal and replacement.(v) Approval of innovative and nonconforming technologies may include a condition which states that after some predetermined period of time after the installation and startup of the innovative or nonconforming technology, requiring an engineering report to be submitted after start-up, detailing the performance of the nonconforming or innovative technology. The engineering report shall include unbiased calculations and data supporting the technology's performance; and written submittals from the design engineer and permittee which state that the nonconforming or innovative technology has satisfied its manufacturer's claims.(C) Conditional approval. The executive director or review authority may grant approvals which contain detailed conditions, stipulations, or restrictions. Examples of such conditions and stipulations include, but are not limited to, testing requirements, reporting requirements, operational requirements, and additional installation and design requirements which may be necessary to ensure compliance with this chapter. Any conditional approval granted may be issued for a specific set of flow situations, wastewater characteristics, and/or required effluent quality. If a conditional approval is granted, both the sewage system owner and design engineer, as appropriate, shall be responsible for ensuring that the approval conditions outlined by the commission or review authority have been met.(5) Municipalities performing technical reviews of sanitary sewer collection systems under TWC, §26.034, within 90 days of the effective date of this rule and/or within 90 days of a boundaries change, shall submit maps to the agency's Wastewater Permits Section detailing the boundaries of the review authority. If a municipality decides to perform technical reviews of sanitary sewer collection systems after the effective date of this rule, the municipality shall submit maps detailing the boundaries of the review authority, within the 30 days before starting these reviews. If at any time a municipality, which has chosen to implement this review authority, decides to cease review of sanitary sewer collection system plans and specifications, the municipality shall notify the executive director within 30 days of the date on which the final plans and specifications review is expected to be performed. In order to meet the standards specified in TWC, §26.034, municipalities shall incorporate the items detailed in subparagraphs (A) - (E) of this paragraph into their review programs:(A) The municipality's review and approval process shall ensure compliance with the rules of this chapter.(B) All reviews performed by an employee of the municipality shall be conducted by a professional engineer, registered in the State of Texas, or the employee conducting the review shall be under the direct supervision of a professional engineer, registered in the State of Texas, who is ultimately responsible for the review and approval of each collection system submitted and installed in the municipality's jurisdiction.(C) The responsible review engineer shall be either an employee of the reviewing municipality, or a consultant to the municipality, separate from the private consulting firm charged with the design work under review. For purposes of this section, the term "separate" means that the responsible review engineer is not employed by and does not receive compensation from the private consulting firm and from any of its parent companies, subsidiaries, or affiliates charged with the design. The municipality shall provide on request documentation of its agreements with private consultants sufficient to allow the agency to audit its compliance with this subsection. (D) A participating municipality may review and approve engineering reports, plans, and specifications only for projects which transport primarily domestic waste within the boundaries of jurisdiction of that municipality. For each project approved for construction, the municipality shall issue an approval letter or other indication of the approval which clearly details the project being approved. (E) The municipality shall maintain complete files of all review and approval activities carried out under its authority and shall make any existing project files available to the commission upon request and/or during audits performed in accordance with paragraph (6) of this subsection.(6) The executive director may perform periodic audits of the review and approval process of municipalities which perform technical reviews of sanitary sewer collection systems in lieu of the commission, to ensure that the projects approved by the municipalities are in compliance with this chapter. If the executive director decides to perform an audit of a municipality's review and approval process, the executive director will provide the municipality with a minimum of five working days advance notice of the pending audit. The executive director may, for auditing purposes only, review specific projects which have previously been approved by the review authority. The municipality shall provide to the executive director, on request, documentation of all agreements between the private consultants and the municipality, which relate to the wastewater collection system review program. If the executive director finds through reviews of specific projects or through audits of the municipality's review and approval process that a municipality's review and approval process does not provide for compliance with the minimum design and installation requirements detailed in this chapter, the review and approval authority shall address these findings within a time established by the executive director. If compliance cannot be achieved, the review authority shall be voided for that municipality. If such authority is voided for a municipality, the executive director shall notify the municipality in writing and shall include the justification for voiding the authority of the municipality. If the authority of a municipality is voided, all new projects proposed to be constructed within that municipality's jurisdiction shall be submitted to the executive director in accordance with paragraph (3)(D) of this subsection.(b) Preliminary engineering report.(1) Definition. The preliminary engineering report shall form the conceptual basis for the collection, treatment, and/or disposal system proposed. This document shall bear the signed and dated seal of the registered professional engineer responsible for the design.(A) For projects receiving United States Environmental Protection Agency construction grants assistance, a facility plan may serve as the preliminary engineering report.(B) For all other projects, a preliminary engineering report proposing processes, methods, or procedures may be submitted as early in the planning stage as is practical. Submission of a preliminary engineering report at this point is only necessary to resolve any potential disagreements between the design engineer and the commission regarding the essential planning information, design data, population projections, and other requirements of the commission. Agreement is desirable to eliminate delays or inconveniences and to avoid the possibility of having to revise the final plans and specifications.(C) The preliminary engineering report may be merged directly with the final engineering report to produce a single engineering report at the discretion of the sewerage system owner.(2) General requirements. The following is required for each project as applicable.(A) A brief description of the project with maps showing the area to be served, general location of proposed improvements, water and wastewater treatment plant sites, existing and proposed streets, parks, drainage ditches, creeks, streams, and water mains shall be provided. The drainage area should be defined clearly, either by contour map or otherwise. Where a contour map is not available to the community, one should be obtained and the contours should be shown at intervals of not more than ten feet. The maps and plans shall be reproduced on paper not larger than 24 inches by 36 inches in size; however, where variations are necessary, all sheets shall be uniform in size.(B) The domestic population of the area to be served (present and projected) and design population of the project shall be included.(C) The names of industries contributing any significant wastes, types of industry (standard industry codes), volume of wastes, characteristics and strength of wastes, population equivalent, and other pertinent information shall be included. It should be emphasized that if significant amounts of wastes other than normal domestic sewage are to be treated at the wastewater treatment plant, sufficient data on such wastes must be presented to allow an evaluation of the effect on the treatment process. This would include, but not be limited to, heavy metals and toxic materials such as polychlorinated biphenyls, organic chemicals, and pesticides.(D) The preliminary engineering report shall include the technical information described in §317.10 of this title (relating to Appendix B--Overland Flow Process) for all overland flow projects.(3) Collection system. The following information shall be provided in the preliminary engineering report if applicable to the project:(A) present area served and future areas to be served; (B) terrain data in sufficient detail to establish general topographical features of present and future areas to be served; (C) lift stations existing and/or proposed;(D) effect of proposed system expansion on existing system capacity; and (E) amount of infiltration/inflow existing and anticipated, and how it is to be addressed in the collection system design.(4) Treatment plant. The following information is required in a preliminary engineering report.(A) Quantity and quality of existing sewage influent and changes in the characteristics anticipated in the future. If adequate records are not available, analyses shall be made for the existing conditions and such information included in the report.(B) Design and peak flow rates being considered and the design period. Design flow is defined as the wet weather maximum 30-day average flow. Therefore, when determining design flow rates, consideration must be given to flows during periods of wet weather in order to assure consistent compliance with discharge permit volume and quality limitations. Peak flow is defined as the highest two hour flow expected to be encountered under any operational conditions, including times of high rainfall (generally the two-year, 24-hour storm is assumed) and prolonged periods of wet weather. For new systems, the peak flow to average annual flow ratio is normally in the range of three-five to one, although other peaking factors may be warranted. (C) Type of treatment plant proposed and the effluent quality expected. The information should include basis of design, flow, organic loading, infiltration allowance, and efficiency determinations sufficient to a given level of treatment.(D) Type of units proposed and their capacities, considering the criteria contained herein. The information should include detention times, surface loadings, weir loadings, flow diagram, and other pertinent information regarding the design of the plant, including sludge processing units required for the selected ultimate sludge disposal.(E) Treatment plant site information and the siting analysis. The location of the plant, the area included in the plant site, dedicated buffer zone, and a description of the surrounding area including a map or a sketch of the area. Particular reference should be made as to the plant's proximity to present and future housing developments, industrial sites, prevailing winds, highways and/or public thoroughfares, water plants, water supply wells, parks, schools, recreational areas, and shopping centers. If the effluent is to be discharged to the waters of the state, the immediate receiving stream, canal, major water course, etc., shall be designated. The siting analysis shall include:(i) flood hazard analysis. Provide the 100-year flood plain elevation. Proposed treatment units which are to be located within the 100-year flood plain will not be approved for construction unless protective measures satisfactory to the commission (such as levees or elevation of the treatment units) are included in the project design;(ii) buffer zone analysis. Demonstrate that the location of each proposed treatment unit is consistent with the buffer zone criteria specified in Chapter 309 of this title (relating to Domestic Wastewater Effluent Limitation and Plant Siting).(5) Sludge management. The preliminary engineering report shall include a discussion of the method of sludge disposal to be utilized. The report shall assess the following factors:(A) estimated quantity of sludge that must be handled which includes future sludge loads based on flow projections;(B) quality and sludge treatment requirements for ultimate disposal;(C) sludge storage requirements for each alternative considering normal operating requirements and contingencies;(D) transportation of sludge;(E) land use and land availability; and(F) reliability of the various alternatives, contingencies, and mitigation plans to ensure reliable capacity and operational flexibility. (6) Control of bypassing. Information and data shall be submitted to describe features (auxiliary power, standby and duplicate units, holding tanks, storm water clarifiers, etc.) and operational arrangements (flexibility of piping and valves to control flow through the plant, reliability of power sources, etc.) to prevent unauthorized discharges of untreated or partially treated wastewater. An outline of control measures to prevent unauthorized discharges of untreated or partially treated wastewater during construction (see subsection (e)(5) of this section) is to be included.(c) Final engineering design report. The final engineering design report shall be submitted with the final plans and technical specifications. The report shall include calculations and any other engineering information pertaining to the plant design as may be necessary in the review of the plans and specifications by the commission. The report must include how the design of the collection system and treatment plant will handle the potential loss of graywater as defined in TWC, §26.0311. This report shall bear the signed and dated seal of the registered professional engineer responsible for the design. Information should be included to describe any changes that have been made since a preliminary engineering report was submitted, along with additional information as follows.(1) Collection system (if applicable):(A) minimum and maximum grades proposed for each size and type of pipe;(B) lift stations (also refer to §317.3 of this title (relating to Lift Stations)):(i) the operating characteristics of the stations at minimum, maximum, and design flows (both present and future);(ii) safety considerations, such as ventilation, entrances, working areas, and prevention of explosions; and (iii) means of preventing overflow of raw sewage;(C) capability of existing trunk and interceptor sewers and lift stations to handle the peak flow under anticipated conditions and capability of existing treatment facilities to receive and adequately treat the anticipated peak flows;(D) type of pipe proposed and its anticipated performance under the conditions imposed by the particular wastewater quality and loading conditions;(E) the manhole spacing proposed;(F) areas not served by the present proposed project, and the projected means of providing service to these areas, including special provisions incorporated in the present plans for future expansion; (G) amount of infiltration/inflow existing and anticipated, its hydraulic effect on the proposed and existing system, and an abatement plan if applicable, including a:(i) description of infiltration allowances and test procedures in the specifications governing design of new sanitary sewer lines; and (ii) description of control program to reduce infiltration/inflow occurring in the existing sewer system;(H) soil conditions, such as quicksand, that will not support collection system development, and measures to be taken to overcome the anticipated difficulties.(2) Treatment plant:(A) the final decisions as to the method of treatment; (B) types of units proposed and their capacities, considering the criteria contained herein including:(i) detention times, surface loadings, weir loadings, and flow diagram; and(ii) other pertinent information regarding the design of the plant, including hydraulic profiles for wastewater and sludge which includes a plot of the hydraulic gradient at peak flow conditions for all gravity lines; (C) the anticipated operation mode of the plant, the degree of treatment expected and any special characteristics of the plant; and(D) the safety features included such as stairways, railing, lighting, insulation mats, and walkway mats.(3) Sludge management system:(A) the final decisions as to the method(s) of managing sludge, including final disposal;(B) contingency alternatives; and(C) the type and size of sludge treatment units to provide the quality of sludge for the selected sludge management method. (d) Final plans and technical specifications.(1) Construction drawings and technical specifications will not be considered for review unless they bear the signed and dated seal of the registered professional engineer responsible for the design on each sheet of the plans and on the title page of the technical specifications. These shall be the plans and specifications to be used by the contractor for bidding and construction.(2) Plans and profiles for sanitary sewers, insofar as practical, shall be prepared using one of the following scales.Attached Graphic(3) The size, grade, and type of pipe material shall be shown. Alternate materials may be identified in the bid document. (4) The location and structural features of the sewers, including manholes to be installed, shall be shown on plans and profiles. The details of the appurtenances shall be provided.(5) The plans and technical specifications for lift stations shall fully describe all pumps, valves, pumping control mechanisms, safety and ventilation equipment, access operator points, hatches, and hoisting equipment for installing and removing equipment.(6) The plans and technical specifications for the wastewater treatment plant shall include construction details for all units of the plant as well as equipment and material specifications and installation procedures. The location and details of inlet and outlet structures, valving, and piping arrangements that allow alternate modes of operation during periods of stress such as mechanical failure, structural repair, or any other activity which requires the removal of one or more treatment elements from service, shall be included. The plans shall include a hydraulic profile of the treatment facilities at both design and peak flows. The plans shall also show provisions for future expansion of the plant, should such be contemplated. Details of complex piping should be clarified by the inclusion of an isometric flow diagram as a part of the plans.(e) Other requirements.(1) Completion. Upon completion of construction, the design engineer or other engineer appointed by the owner shall notify the commission of completion and attest to the fact that the completed work is substantially in accordance with the plans, technical specifications, and change orders approved by the commission. If substantial changes have been made to the original plans, record drawings documenting such changes shall be submitted to the commission.(2) Inspection. During construction, the project may be visited by a representative of the commission during normal working hours to establish general compliance with the plans and technical specifications approved by the commission.(3) Operation and maintenance manual. Prior to completion of construction of a new wastewater treatment plant or plant expansion, an operation and maintenance manual covering the recommended operating procedures and maintenance practices for the entire facility shall be furnished to the sewerage system owner by the design engineer. The design engineer shall submit a letter to the commission certifying that this action has been performed and shall furnish a copy of the operation and maintenance manual to the commission upon request.(4) Sludge management implementation plan. The design engineer shall prepare an implementation plan for the selected sludge management method. The plan shall identify regulatory requirements of state and federal agencies. The plan shall also include requirements for selected contingency alternatives.(5) Authorization to discharge. For treatment plant projects, the owner is required to secure proper authorization from the commission prior to initiation of construction. No discharge shall be authorized without a discharge permit. In no case shall bypassing of partially treated wastewater be authorized during construction without an order for such discharge from the commission. Also see §317.4(a)(3) of this title (relating to Wastewater Treatment Facilities).(f) Variance. A variance from the design criteria herein may be granted by the commission if the variance would not result in an unreasonable risk to treatment plant performance, public health, or the waters in the state. Requests for variances must be submitted in writing by the design engineer and must, for each affected item, include a detailed engineering justification.</content><note type="source"><p>Source Note: The provisions of this §317.1 adopted to be effective November 26, 2015, 40 TexReg 8341.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c317/sc/s317.2"><num value="317.2">§317.2</num><heading>Sewage Collection System</heading><content>(a) General requirements.(1) Design. Sewer lines shall be designed for the estimated future population to be served, plus adequate allowance for institutional and commercial flows. The collection system design shall provide a minimum structural life cycle of 50 years. The collection system design shall provide for the minimization of anaerobic conditions. Design procedures for the minimization of anaerobic conditions outlined in the United States Environmental Protection Agency (EPA) Design Manual for Odor and Corrosion Control in Sanitary Sewerage Systems and Treatment Plants (EPA/625/1-85/018), American Society of Continuing Education (ASCE) Manual of Engineering Practice Number 69 (MEP-69), or other appropriate references, should be followed. The owner of the collection system shall provide inspection under the direction of a Texas registered professional engineer during construction and testing phases of the project. All collection systems to be located over the recharge zone of the Edwards Aquifer shall be designed and installed in accordance with Chapter 213 of this title (relating to Edwards Aquifer) in addition to these rules.(2) Pipe selection. The choice of sewer pipe shall be based on the chemical characteristics of the water delivered by public and private water suppliers, the character of industrial wastes, the possibilities of septicity, the exclusion of inflow and infiltration, the external forces, internal pressures, abrasion, and corrosion resistance. For all installations, if a pipe as a whole or an integral structural component of the pipe will deteriorate when subjected to corrosive internal conditions, a corrosive resistant coating or liner acceptable to the commission shall be installed at the pipe manufacturing facility unless the final engineering design report, including calculations and data, submitted by the engineer demonstrates that the design and operational characteristics of the system will maintain the structural integrity of the system during the minimum life cycle. The sewer pipe to be used shall be identified in the plans and technical specifications with its appropriate American Society for Testing and Materials (ASTM), American National Standards Institute (ANSI), or American Water Works Association (AWWA) standard numbers for both quality control (dimensions, tolerances, etc.) and installation (bedding, backfill, etc.).(A) Flexible pipe. The engineer shall submit an engineering report that includes the method of defining the modulus of soil reaction, (E'), for the bedding material, (E'b ), and the natural soil (E'n ), or other specific information to quantify the effect of the in-situ material on the effective modulus, (E'e ). The report shall also include design calculations for E'e , prism load, live loads, long-term deflection, strain, bending strain, buckling, and wall crushing. The design calculations shall include all information pertinent to the determination of an adequate design including, but not limited to: pipe diameter and material with reference to appropriate standards, modulus of elasticity, tensile strength, pipe stiffness or ring stiffness constant converted to pipe stiffness as described below, Leonhardt's zeta factor or E'e from another acceptable method, the conversion factor used to obtain vertical deflection when using the Modified Iowa Equation, trench width, depth of cover, water table elevation, etc. Pipe stiffness shall be related to Ring Stiffness Constant (RSC), when necessary, by the following equation:Attached Graphic(B) Rigid pipe. The engineer shall submit an engineering report that includes the trench width, water table, and depth of cover, etc. For rigid conduits the minimum strengths for the given class shall be noted in the appropriate standard for the pipe material. For the purpose of this section, rigid pipe is defined as concrete, vitrified clay, or ductile iron pipe.(C) Other pipe materials may be considered on a case-by-case basis by the executive director. The design and installation of such materials shall generally follow the guidelines for flexible or rigid pipe with appropriate exceptions.(3) Jointing material. The materials used and methods to be applied in making joints shall be included in the technical specifications. Materials used for sewer joints shall have a satisfactory record of preventing infiltration and root entrance. Rubber gaskets, polyvinyl chloride (PVC) compression joints, high compression polyurethane, welded or other types of factory made joints are required.(4) Testing of installed pipe. An infiltration, exfiltration, or low-pressure air test shall be specified. Copies of all test results shall be made available to the executive director upon request. Tests shall conform to the following requirements.(A) Infiltration or exfiltration tests. The total exfiltration, as determined by a hydrostatic head test, shall not exceed 50 gallons per inch diameter per mile of pipe per 24 hours at a minimum test head of two feet above the crown of the pipe at the upstream manhole. When pipes are installed below the groundwater level an infiltration test shall be used in lieu of the exfiltration test. The total infiltration, as determined by a hydrostatic head test, shall not exceed 50 gallons per inch diameter per mile of pipe per 24 hours at a minimum test head of two feet above the crown of the pipe at the upstream manhole, or at least two feet above existing groundwater level, whichever is greater. For construction within the 25-year flood plain, the infiltration or exfiltration shall not exceed ten gallons per inch diameter per mile of pipe per 24 hours at the same minimum test head. If the quantity of infiltration or exfiltration exceeds the maximum quantity specified, remedial action shall be undertaken in order to reduce the infiltration or exfiltration to an amount within the limits specified.(B) Low pressure air test. The procedure for the low pressure air test shall conform to the procedures described in ASTM C-828, ASTM C-924, ASTM F-1417, or other appropriate procedures, except for testing times. The test times shall be as outlined in this section. For sections of pipe less than 36-inch average inside diameter, the following procedure shall apply unless the pipe is to be joint tested. The pipe shall be pressurized to 3.5 per square inch (psi) greater than the pressure exerted by groundwater above the pipe. Once the pressure is stabilized, the minimum time allowable for the pressure to drop from 3.5 pounds per square inch gauge to 2.5 pounds per square inch gauge shall be computed from the following equation. The test may be stopped if no pressure loss has occurred during the first 25% of the calculated testing time. If any pressure loss or leakage has occurred during the first 25% of the testing period, then the test shall continue for the entire test duration as outlined in this subparagraph or until failure. Lines with a 27-inch average inside diameter and larger may be air tested at each joint. Pipe greater than 36-inch diameter must be tested for leakage at each joint. If the joint test is used, a visual inspection of the joint shall be performed immediately after testing. The pipe is to be pressurized to 3.5 psi greater than the pressure exerted by groundwater above the pipe. Once the pressure has stabilized, the minimum time allowable for the pressure to drop from 3.5 pounds per square inch gauge to 2.5 pounds per square inch gauge shall be ten seconds.Attached Graphic(C) Deflection testing. Deflection tests shall be performed on all flexible pipes. For pipelines with inside diameters less than 27 inches, a rigid mandrel shall be used to measure deflection. For pipelines with an inside diameter 27 inches and greater, a method approved by the executive director shall be used to test for vertical deflections. Other methods shall provide a precision of plus or minus two-tenths of 1.0% (0.2%) deflection. The test shall be conducted after the final backfill has been in place at least 30 days. No pipe shall exceed a deflection of 5.0%. If a pipe should fail to pass the deflection test, the problem shall be corrected and a second test shall be conducted after the final backfill has been in place an additional 30 days. The tests shall be performed without mechanical pulling devices. The design engineer should recognize that this is a maximum deflection criterion for all pipes and a deflection test less than 5.0% may be more appropriate for specific types and sizes of pipe. Upon completion of construction, the design engineer or other Texas registered professional engineer appointed by the owner shall certify to the executive director that the entire installation has passed the deflection test. This certification may be made in conjunction with the notice of completion required in §317.1(e)(1) of this title (relating to General Provisions). This certification shall be provided for the commission to consider the requirements of the approval to have been met.(i) Mandrel sizing. The rigid mandrel shall have an outside diameter equal to 95% of the inside diameter of the pipe. The inside diameter of the pipe, for the purpose of determining the outside diameter of the mandrel, shall be the average outside diameter minus two minimum wall thicknesses for outside diameter controlled pipe and the average inside diameter for inside diameter controlled pipe, all dimensions shall be per appropriate standard. Statistical or other "tolerance packages" shall not be considered in mandrel sizing.(ii) Mandrel design. The rigid mandrel shall be constructed of a metal or a rigid plastic material that can withstand 200 psi without being deformed. The mandrel shall have nine or more "runners" or "legs" as long as the total number of legs is an odd number. The barrel section of the mandrel shall have a length of at least 75% of the inside diameter of the pipe. A proving ring shall be provided and used for each size mandrel in use.(iii) Method options. Adjustable or flexible mandrels are prohibited. A television inspection is not a substitute for the deflection test. A deflectometer may be approved for use on a case-by-case basis. Mandrels with removable legs or runners may be accepted on a case-by-case basis.(5) Bedding: trenching, bedding, and backfill. The width of the trench shall be minimized, but shall be ample to allow the pipe to be laid and jointed properly and to allow the backfill to be placed and compacted as needed. The trench sides shall be kept as nearly vertical as possible. As used herein, a trench shall be defined as that open cut portion of the excavation up to one foot above the pipe. The engineer shall specify the maximum trench width. The width of the trench shall be sufficient, but no greater than necessary, to ensure working room to properly and safely place and compact haunching materials. The space must be wider than the compaction equipment used in the pipe zone. A minimum clearance of four inches below and on each side of all pipes to the trench walls and floor shall be provided. Bedding Classes A, B, or C, as described in ASTM C 12 (ANSI A 106.2), Water Environment Federation (WEF) Manual of Practice (MOP) Number 9 or American Society of Civil Engineers (ASCE) MOP 37 shall be used for all rigid pipes, provided that the proper strength pipe is used with the specified bedding to support the anticipated load(s). Embedment Classes IA, IB, II, or III, as described in ASTM D-2321 (ANSI K65.171) shall be used for all flexible pipes, provided the proper strength pipe is used with the specified bedding to support the anticipated load, except that ASTM D-2680 may be used if the pipe stiffness is 200 psi or greater. Secondary backfill shall be of suitable material removed from excavation except where other material is specified. Debris, large clods or stones greater than six inches in diameter, organic matter, or other unstable materials shall not be used for backfill. Backfill shall be placed in such a manner as not to disturb the alignment of the pipe. Where trenching encounters extensive fracture or fault zones, caves, or solutional modification to the rock strata, construction shall be halted and an engineer shall provide direction to accommodate site conditions. Water line crossings shall be governed by special backfill requirements specified in §317.13 of this title (relating to Appendix E--Separation Distances).(6) Site inspections. The executive director shall, on a random basis, perform site inspections.(7) Protecting public water supply. Water lines and sanitary sewers shall be installed no closer to each other than nine feet between outside diameters. Where this cannot be achieved, the sanitary sewer shall be constructed in accordance with §317.13 of this title and §290.44(e)(1) of this title (relating to Water Distribution). Separation distances between sanitary sewer systems and water wells, springs, surface water sources, and water storage facilities shall be installed in accordance with the requirements of §290.41(c)(1), (d)(1), (e)(1)(C), and (e)(3)(A), and §290.43(b)(3) of this title (relating to Water Sources; and Water Storage, respectively), as appropriate. Where rules governing separation distance are in conflict, the most strict rule shall apply. No physical connection shall be made between a drinking water supply, public or private, and a sewer or any appurtenance. An air gap of a minimum of 18 inches or two pipe diameters, whichever is greater, shall be maintained between all potable water outlets and the maximum water surface elevation of sewer appurtenances. All appurtenances shall be designed and constructed so as to prevent any possibility of sewage entering the potable water system.(8) Excluding surface water. Proposals for the construction of combined sewers will not be approved. Roof, street, or other types of drains which will permit entrance of surface water into the sanitary sewer system shall not be acceptable.(9) Active geologic faults. For systems to be located in areas of known active geologic faults, the design engineer shall locate any faults within the area of the collection system and the system shall be laid out to minimize the number of sewers crossing faults. Where crossings are unavoidable, the engineering report shall specify design features to protect the integrity of the sewer. Consideration should be given to joints providing maximum deflection and to providing manholes on each side of the fault so that a portable pump may be used in the event of sewer failures. Service connections within 50 feet of an active fault should be avoided.(10) Erosion control. Erosion or sedimentation control that minimizes the effects of runoff shall be provided during the construction phase of a project. This requirement will be reviewed on a case-by-case basis.(b) Capacities.(1) Sources. The peak flow of domestic sewage, peak flow of waste from industrial plants, and maximum infiltration rates shall be considered in determining the hydraulic capacity of sanitary sewers.(2) Existing systems. The design of extensions to sanitary sewers should be based on the data from the existing system. If this is not possible, the design shall be based on data from similar systems or paragraph (3) of this subsection, new systems.(3) New systems. New sewers shall be sized using an appropriate engineering analysis of existing and future flow data. The executive director shall have the authority to determine the reliability and appropriateness of the data utilized for sizing the system. In the absence of local reliable flow data and engineering analysis, new sewer systems shall be designed on the basis of an estimated daily sewage flow contribution as shown in the table in §317.4(a) of this title (relating to Wastewater Treatment Facilities). Minor sewers shall be designed such that when flowing full they will transport wastewater at a rate approximately four times the system design daily average flow. Main trunk, interceptor, and outfall sewers shall be designed to convey the contributed minor sewer flows.(c) Design details.(1) Minimum size. No sewer other than service laterals and force mains shall be less than six inches in diameter.(2) Slope. All sewers shall be designed and constructed with slopes sufficient to give a velocity when flowing full of not less than 2.0 feet per second. The grades shown in the following table are based on Manning's formula with an assumed "n factor" of 0.013 and constitute minimum acceptable slopes. The minimum acceptable "n" for design and construction shall be 0.013. The "n" used takes into consideration the slime, grit, and grease layers that will affect hydraulics or hinder flow as the pipe matures.Attached Graphic(3) High velocity protection. Where velocities greater than ten feet per second will occur when the pipe is flowing full, at slopes greater than those listed in paragraph (2) of this subsection, special provisions shall be made to protect against pipe displacement by erosion of the bedding and/or shock.(4) Alignment. Sewers shall be laid in straight alignment with uniform grade between manholes unless slight deviations from straight alignment and uniform grade are justified to the satisfaction of the executive director.(5) Manhole use. Manholes shall be placed at all points of change in alignment, grade, or size of sewer, at the intersection of all sewers and the end of all sewer lines that will be extended at a future date. Any proposal which deviates from this requirement shall be justified to the satisfaction of the executive director. Clean-outs with watertight plugs may be installed in lieu of manholes at the end of sewers which are not anticipated to be extended. Such installations must pass a leakage test and a deflection test for all flexible lines.(A) Type. Manholes shall be monolithic, cast-in-place concrete, fiberglass, precast concrete, high-density polyethylene (HDPE), or of equivalent construction. Brick manholes shall not be used, nor shall brick be used to adjust manhole covers to grade.(B) Spacing. The maximum required manhole spacing for sewers with straight alignment and uniform grades are in the following table. Reduced manhole spacing may be necessary depending on the utility's ability to maintain its sewer lines. Areas subject to flooding require special consideration to minimize inflow.Attached Graphic(C) Inflow and infiltration control. Watertight, size-on-size resilient connectors allowing for differential settlement shall be used to connect pipe to manholes. Pipe to manhole connectors shall conform to ASTM C-923. Other types of connectors may be used when approved by the commission. Manholes should not allow surface water to drain into them. If manholes are located within the 100-year flood plain, the manhole covers shall have gaskets and be bolted or have another means of preventing inflow. Where gasketed manhole covers are required for more than three manholes in sequence, an alternate means of venting shall be provided at less than 1,500 foot intervals. Vents should be designed to minimize inflow. Impervious material should be utilized for manhole construction in these areas in order to minimize infiltration.(D) Manhole diameter. Manholes shall be of sufficient inside diameters to allow personnel to work within them and to allow proper joining of the sewer pipes in the manhole wall. The inside diameter of manholes shall be not less than 48 inches.(E) Manhole inverts. The bottom of the manhole shall be provided with a "U" shaped channel that is as much as possible a smooth continuation of the inlet and outlet pipes. For manholes connected to pipes less than 15 inches in diameter the channel depth shall be at least half the largest pipe diameter. For manholes connected to pipes 15 to 24 inches in diameter the channel depth shall be at least three-fourths the largest pipe diameter. For manholes connected to pipes greater than 24 inches in diameter the channel depth shall be at least equal to the largest pipe diameter. In manholes with pipes of different sizes, the tops of the pipes shall be placed at the same elevation and flow channels in the invert sloped on an even slope from pipe to pipe. The bench provided above the channel shall be sloped at a minimum of 0.5 inch per foot. Where sewer lines enter the manhole higher than 24 inches above the manhole invert, the invert shall be filleted to prevent solids deposition. A drop pipe should be provided for a sewer entering a manhole more than 30 inches above the invert.(F) Manhole covers. Manhole covers of nominal 24-inch or larger diameter are to be used for all sewer manholes.(G) Manhole access. Design of features for entering manholes shall be guided by the following criteria.(i) It is suggested that entrance into manholes in excess of four feet deep be accomplished by means of a portable ladder. Other designs for ingress and egress should be given careful evaluation considering the safety hazards associated with the use of manhole steps under certain conditions.(ii) Where steps are used, they shall be made of a noncorrosive material and be in accordance with applicable OSHA specifications as published by the United States Department of Labor.(H) Testing. Manholes shall be tested for leakage separately and independently of the wastewater lines by hydrostatic exfiltration testing, vacuum testing, or other methods acceptable to the commission. If a manhole fails a leakage test, the manhole must be made watertight and retested. The maximum leakage for hydrostatic testing shall be 0.025 gallons per foot diameter per foot of manhole depth per hour. Alternative test methods must ensure compliance with the above allowable leakage. Hydrostatic exfiltration testing shall be performed as follows: all wastewater lines coming into the manhole shall be sealed with an internal pipe plug, then the manhole shall be filled with water and maintained full for at least one hour. For concrete manholes a wetting period of 24 hours may be used prior to testing in order to allow saturation of the concrete.(6) Sag pipes (inverted siphons). Sag pipes shall have two or more barrels, a minimum pipe diameter of six inches and shall be provided with necessary appurtenances for convenient flushing and maintenance. The manholes shall have adequate clearances for rodding, and in general, sufficient head shall be provided and pipe sizes selected to assure velocities of at least three feet per second at design flows. The inlet and outlet details shall be arranged so that the normal flow is diverted to one barrel. Provisions shall be made such that either barrel may be taken out of service for cleaning.(d) Alternative wastewater collection systems. Use of alternative wastewater collection systems may be considered when justified by unusual terrain or geological formations, low population density, difficult construction, or other circumstances where an alternative wastewater collection system would offer an advantage over a conventional gravity system. An alternative wastewater collection system will be considered for approval only when conditions make a conventional gravity collection system impractical. Alternative wastewater collection system types include pressure sewers (septic tank effluent pumping or grinder pump systems), small diameter gravity sewers (minimum grade effluent sewers or variable grade effluent sewers), vacuum sewers, and combinations thereof. Alternative wastewater collection systems are comprised of both on-site (interceptor tanks, pumps, pump tanks, valves, service laterals) and off-site components (collector mains, force mains, vacuum stations, clean-outs, manholes, vents, and lift stations). Pressure sewer systems, small diameter gravity sewers, and vacuum sewers will be approved on a case-by-case basis. The engineering report must justify the design of alternative wastewater collection systems to the satisfaction of the executive director. The EPA's Manual of Alternative Wastewater Collection Systems (EPA/625/1-91/024), the WEF's Alternative Sewer Systems (MOP FD-12), or other appropriate engineering literature should be used as the basis for design.(1) Management. A responsible management structure under the regulatory jurisdiction of the Texas Commission on Environmental Quality shall be established, to the satisfaction of the executive director, to be in charge of the operation and maintenance of an alternative wastewater collection system. A legally binding service agreement shall be required to insure the alternative wastewater collection system is properly constructed and maintained. The required elements of the service agreement are as follows.(A) The document must be legally binding.(B) Existing septic and pump tanks that are to be used as interceptor tanks for primary treatment, wastewater storage, or pump tanks prior to the discharge into an alternative sewer system must be cleaned, inspected, repaired, modified, or replaced if necessary, to minimize inflow and infiltration into the collection system prior to connection.(C) The utility shall have approval authority for the design of the system including all materials and equipment prior to the installation of an interceptor tank, pressure sewer pump tank, or vacuum system appurtenances. The materials shall comply with standard specifications submitted to and approved by the executive director.(D) The utility must be able to approve the installation of the interceptor tank, pressure sewer pump tank, or vacuum system appurtenances after construction to ensure the installation was as specified.(E) The utility must be responsible for the operation and maintenance of the system including any interceptor tank, pressure sewer pump tank, or vacuum system appurtenances incorporated.(F) The utility must be able to stop any discharges from any collection system appurtenances in order to prevent contamination of state waters.(G) The utility shall submit a maintenance schedule to the executive director which outlines routine service inspections and maintenance for all types of pressure sewers, small diameter gravity sewers, and vacuum sewer system components.(H) Pumping units, grinder pumps, vacuum sewer appurtenances, interceptor tanks shall be regarded as integral components of the system and not as a part of the home plumbing.(I) Provision to ensure collection system integrity during a power outage (two-year event) shall be incorporated into the design. Power outage duration will be determined as described in §317.3(e)(1) of this title (relating to Lift Stations).(2) Pressure sewer system design considerations. The following shall be submitted to and approved by the executive director:(A) hydraulic calculations for sizing the pressure sewer pumping system shall be based on providing the firm capacity to pump the expected peak flow. These calculations shall include system and pump curves as described in §317.3(c)(4) of this title, wet well capacity calculations based on minimum cycle times as described in §317.3(b)(4)(B) of this title, and emergency and flow equalization storage as necessary. The number of units pumping at any one time may be estimated based on appropriate engineering literature;(B) flow velocities in the range of three to five feet per second;(C) the installation of air relief valves;(D) the provision of means to flush all lines in the system;(E) the installation of clean-outs; and(F) development of procedures whereby portions of the pressure system may be rerouted with temporary lines in the event of leaks, construction, or repair.(3) Pipe selection. Appropriate ASTM, ANSI, or AWWA standards shall be specified for alternative wastewater collection system pipe and joints. Pipe which will be used in pressure sewer systems shall have a minimum sustained working pressure rating of 150 pounds per square inch gauge as per appropriate standard. Pipe selection shall also conform to subsection (a)(1) - (3) and (5) of this section.(4) Leakage testing. All alternative wastewater collection systems components shall be tested for leakage. Testing procedures for on-site system components, small diameter gravity sewer systems, and vacuum sewer systems will be approved on a case-by-case basis. Pressure sewer installation shall be tested for leakage with a hydrostatic test. Copies of all test results shall be made available to the executive director upon request. Leakage in the pressure sewer hydrostatic test shall be defined as the quantity of water that must be supplied into the pipe or any valved section thereof to maintain pressure within five pounds per square inch of the specified test pressure after the air in the pipeline has been expelled. The test pressure shall be either a minimum of 25 pounds per square inch gauge or 1.5 times the maximum force main design pressure, whichever is larger. The maximum allowable leakage shall be calculated using the formula in this paragraph. If the quantity of leakage exceeds the maximum amount calculated, remedial action shall be taken to reduce the leakage to an amount within the allowable limit as follows.Attached Graphic(5) Pumps. Pumping units and grinder pumps used in pressure sewer systems should be reliable, easily maintained, and should have compatible characteristics.(A) Pumps and grinder pump units shall be provided with two backflow prevention devices (one check valve at tank, to protect against back drainage into tank, second check valve at connection of service line to pressure collection line to protect against leaking sewage in case service line is damaged) and shall be easily accessible for maintenance.(B) Sufficient holding capacity shall be provided in the pumping compartment to allow for wastewater storage during power outages and equipment failures. Storage volume should be based on power supply outage records and replacement equipment availability.(C) Pumping units shall not be installed in the settling chamber of an interceptor tank if the interceptor tank is to be used for solids reduction.(D) Alarms, warning lights, or other suitable indicators of unit malfunction shall be installed at each pumping station.(E) Whenever any pumping station handles waste from two or more residential housing units or from any public establishment, dual pump units shall be provided to assure continued service in the event of equipment malfunction.</content><note type="source"><p>Source Note: The provisions of this §317.2 adopted to be effective November 26, 2015, 40 TexReg 8341.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c317/sc/s317.3"><num value="317.3">§317.3</num><heading>Lift Stations</heading><content>(a) Site selection. In the selection of a site for a lift station, consideration shall be given to accessibility and potential nuisance aspects. The station shall be protected from the 100-year flood and shall be accessible during a 25-year flood. All lift stations shall be intruder-resistant with a controlled access. Lift stations should be located as remotely as possible from populated areas.(b) Design.(1) Small lift stations. Lift stations designed for a discharge capacity of less than 100 gallons per minute will be reviewed on a case-by-case basis by the commission and shall be used only for institutional use or other locations where it is necessary to pump the sewage from a single building, school, or other measurable source establishment into the sanitary sewer lines. If the location of the discharge does not provide a positive head due to elevation, then a positive pressure control valve shall be provided. Ejectors may be used for this type of lift station. Whenever a lift station handles waste from two or more residential housing units, or from any public establishment, standby pumps shall be provided. In the case of ejectors or eductors, two air compressors shall be provided. Grinder pumps should be used for all small installations.(2) Dry well sump pump. The following design considerations shall be addressed in providing dry well sump pumps.(A) Two separate sump pumps should be provided for removal of leakage or water from the dry well floor.(B) The discharge pipe level from the sump pumps shall be above the maximum liquid level of the wet well. A check valve should be installed on the discharge side of each sump pump.(C) All floor and walkway surfaces shall have an adequate slope to a point of drainage with sufficient measures taken to maximize traction and safety.(D) Motors to drive sump pumps shall be located above the height of the maximum liquid level in the wet well. As an alternate, sump pumps may be of the submersible type.(3) Pump controls. All lift stations shall have automatically operated pump control mechanisms. Pump control mechanisms shall be located so that they will not be affected by flow currents in the wet well. Provisions shall be made to prevent grease and other floating materials and rags in the wet well from interfering with the operation of the controls. When a float tube is located in the dry well, its height shall be such as to prevent overflow of the sewage into the dry well. Pump control mechanisms which depend on a bubbler in the wet well shall be equipped with a backup air supply system. All connections to level controls in the wet well shall be accessible at all times. The circuit breakers, indicator lights, pump control switches, and other electrical equipment should be located on a control panel at least three feet above ground surface elevation. If controls are located in a dry well, the dry well shall be protected from flooding.(4) Wet wells.(A) Wet wells and dry wells, including their superstructure, shall be separated by at least a watertight and gastight wall with separate lockable entrances provided to each. Equipment requiring regular or routine inspection and maintenance shall not be located in the wet well, unless the maintenance can be accomplished without entering the wet well.(B) Based on design flow, wet well capacity should provide a pump cycle time of not less than six minutes for those lift stations using submersible pumps and not less than 10 minutes for other nonsubmersible pump lift stations.(C) All influent gravity lines into a wet well shall be located where the invert is above the "off" setting liquid level of the pumps, and preferably should be located above the lead pump "on" setting.(5) Stairways. Stairways with non-slip steps shall be provided in all underground dry wells. Removable ladders may be provided in small stations where it is impractical to install stairways.(6) Ventilation. Ventilation shall be provided for lift stations, including both wet and dry wells.(A) Passive ventilation such as gooseneck type or turbine ventilators designed to prevent possible entry of insects or birds shall be provided in all wet wells if mechanical ventilation is not provided. All mechanical and electrical equipment in wet wells should be explosion-proof and spark-proof construction if mechanical ventilation is not provided.(B) Mechanical ventilation shall be provided for all dry wells below the ground surface. The ventilation equipment shall have a minimum capacity of six air changes per hour under continuous operations. At least a capacity of 30 air changes per hour shall be required where the operation is intermittent. All intermittently operated venting equipment shall be interconnected with the stations lighting system.(7) Wet well slopes. The bottom of wet wells shall have a minimum slope of 10% to the pump intakes and shall have a smooth finish. There shall be no projections in the wet well which will allow deposition of solids under ordinary operating conditions. Antivortex baffling should be considered for the pump suctions in all large sewage pumping stations (greater than five million gallons per day (mgd) firm pumping capacity).(8) Hoisting equipment. Hoisting equipment or access by hoisting equipment for the removal of pumps, motors, valves, etc., shall be incorporated in the station design.(9) Dry wells and valve vault drains. Drains from dry wells or valve vaults to the wet well shall be equipped with suitable devices to prevent entry of potentially hazardous gases.(c) Pumps.(1) General. All raw sewage pumps shall be of a non-clog design, capable of passing 2 1/2 inch diameter spheres, and shall have no less than three-inch diameter suction and discharge openings. Inspection and cleanout plates, located both on the suction and discharge sides of each pumping unit, are suggested for all nonsubmersible pumps so as to facilitate locating and removing blockage-causing materials. Where such openings are not provided on the pumps, a hand hole in the first fitting connected to the suction of each pump shall be provided. All pumps shall be securely supported so as to prevent movement during operation. For submersible pumps, rail-type pump support systems incorporating manufacturer-approved mechanisms designed to allow the operator to remove and replace any single pump without first entering or dewatering the wet well should be provided.(2) Lift station pumping capacity. The firm pumping capacity of all lift stations shall be such that the expected peak flow can be pumped to its desired destination. Firm pumping capacity is defined as total station maximum pumping capacity with the largest pumping unit out of service.(3) Variable capacity pumps. Lift stations or transfer pumping facilities at a wastewater treatment plant or those discharging directly to the treatment plant where the plant's permitted daily average flow is equal to or greater than 100,000 gallons per day shall be provided with three or more pumps or with duplex automatically controlled variable capacity pumps or other automatic flow control devices. The pumps or other devices shall be adjusted for actual flow conditions and controlled to operate so as to minimize surges in the treatment units. No single pumping unit shall have a capacity greater than the design peak flow of the wastewater treatment plant unless flow splitting/equalization is provided.(4) Pump head calculations. The engineering design report accompanying the plans shall include system curves, pump curves, and head calculations. Calculations and pump curves at both minimum (all pumps off) and maximum (last normal operating pump on) static heads and for a C value of both 100 and 140 must be provided for each pump and for the combination of pumps (modified pump curves). Where a suction lift is required, the report shall include a calculation of the available net positive suction head (NPSH) and a comparison of that value to the required NPSH for the pump as furnished by the pump manufacturer.(5) Self-priming pumps. Only self-priming pumps or pumps with acceptable priming systems, as demonstrated by a reliable record of satisfactory operation, shall be used where the suction head is negative. All self-priming pumps shall include a means for venting the air back to the wet well when the pump is priming.(6) Pump positioning. All raw sewage pumps, other than submersible pumps without "suction" piping and self-priming units capable of satisfactory operation under any negative suction heads anticipated for the lift station under consideration, shall be positioned such that the pumps always experience, during their normal on-off cycling, a positive static suction head.(7) Grinder pumps. See §317.2(d) of this title (relating to Sewage Collection System).(d) Piping.(1) Pump suctions. Each pump shall have a separate suction pipe. Cavitation may be avoided by using eccentric reducers in lieu of typical reducers in order to prevent air pockets from forming in the suction line.(2) Valves. Full closing valves shall be installed on the discharge piping of each pump and on the suction of all dry pit pumps. A check valve shall be installed on the discharge side of each pump, preceding the full closing valve. Check valves should be of a swing check type with external levers. Rubberball check valves may be used for grinder pump installations in lieu of the swing check type. Butterfly valves, tilting disc check valves, or other valves with a pivoted disc in the flow line are not allowed. The design shall consider surge effects and provide protection where necessary. Surge relief shall be contained in the system.(3) Valve position indicators. Gate valves should be rising-stem valves. If other than rising-stem gate valves and check valves with external levers are used, the valves shall include a position indicator to show their open and closed positions.(4) Lift station piping. Flanged pipe and fitting or welded pipe shall be used for exposed piping inside of lift stations. A flexible or flanged connection shall be installed in the piping to each pump so that the pump may be removed easily for repairs. Provisions shall be made in the design to permit flexure where pipes pass through walls of the station. Piping should normally be sized so that the maximum suction velocity does not exceed five feet per second and the maximum discharge velocity does not exceed eight feet per second.(5) Force main pipe selection. Force mains shall be a minimum of four inches in diameter, unless justified, as with the use of grinder pumps. In no case shall the velocity be less than two feet per second with only the smallest pump operating, unless special facilities are provided for cleaning the line at specified intervals or it can be shown that a flushing velocity of five feet per second or greater will occur one or more times per day. Pipe specified for force mains shall be of a type having an expected life at least as long as that of the lift station and shall be suitable for the material being pumped and the operating pressures to which it will be subjected. All pipe shall be identified in the technical specifications with appropriate American Society for Testing and Materials (ASTM), American National Standards Institute (ANSI), or American Water Works Association (AWWA) specifications numbers for both quality control (dimensions, tolerances, etc.) and installation (bedding, backfill, etc.). All pipe and fittings shall have a minimum working pressure rating of 150 pounds per square inch.(6) Force main tests. Final plans and specifications shall describe and require pressure testing for all installed force mains. Minimum test pressure shall be 1.5 times the maximum design pressure.(7) Air release valves. Air release valves or combination air release/vacuum valves suitable for sewage service shall be provided at all peaks in elevation. The final engineering drawings must depict all proposed force mains in both plan and profile.(e) Emergency provisions. Lift stations shall be designed such that there is not a substantial hazard of stream pollution from overflow or surcharge onto public or private property with sewage from the lift station. Options for a reliable power source may include the following.(1) Power supply. The commission will determine the reliability of the existing commercial power service. Such determinations shall be based on power outage records obtained from the appropriate power company and presented to the commission. When requesting outage records for submittal to the commission, it is important to note that the records be in writing, bear the signature of an authorized utility employee, identify the location of the wastewater facilities being served, list the total number of outages that have occurred during the past 24 months, and indicate the duration of each recorded outage. The facility will be deemed reliable if the demonstrated wastewater retention capacity, in the station's wet well, spill retention facility, and incoming gravity sewer lines, is sufficient to insure that no discharge of untreated wastewater will occur for a length of time equal to the longest electrical outage recorded in the past 24 months. If records for the service area cannot be obtained, a 120 minute worst case outage duration will be assumed. Provisions for a minimum wastewater retention period of 20 minutes should be considered even in those cases where power company records indicate no actual outages of more than 20 minutes occurred during the past 24 months.(2) Alternative power supply. If the existing power supply is found to be unreliable, an emergency power supply or detention facility shall be provided. Options include:(A) electrical service from two separate commercial power companies, provided automatic switchover capabilities are in effect;(B) electrical service from two independent feeder lines or substations of the same electric utility, provided automatic switchover capabilities are in effect;(C) on-site automatic starting electrical generators;(D) reliance on portable generators or pumps. Proposals for the utilization of portable units shall be accompanied by a detailed report showing conclusively the ability of such a system to function satisfactorily. Portable units will be approved only in those cases where the station is equipped with an auto-dialer, telemetry device, or other acceptable operator notification device, operators knowledgeable in acquisition and startup of the portable units are on 24-hour call, the station is accessible in all weather conditions, reasonable assurances exist as to the timely availability and accessibility of the proper portable equipment, and the station is equipped with properly designed and tested quick connection facilities. This option is usually acceptable only for smaller lift stations.(3) Restoration of lift station. Provisions should be made to restore the lift station to service within four hours of outage.(4) Spill containment structures. A spill containment structure should be considered together with in-system retention in determining a total wastewater retention time. Because separate spill retention facilities are not suitable for all locations, engineers should check with the commission prior to designing such structures. The design shall provide:(A) a minimum storage volume of average design flow from the contributing area and the longest power outage during the most recent consecutive 24-month period or, if power records are not available, an assumed 24-hour outage;(B) an impermeable liner (such as concrete or synthetic fabric (20 mil thickness)) and should have an energy dissipator at the point of overflow from the lift station to prevent scour;(C) a fence with a controlled access; and(D) a plan for routine cleaning and inspection.(5) Alarm system. An audiovisual alarm system (red flashing light and horn) shall be provided for all lift stations. These alarm systems should be telemetered to a facility where 24-hour attendance is available. The alarm system shall be activated in case of power outage, pump failure, or a specified high water level.</content><note type="source"><p>Source Note: The provisions of this §317.3 adopted to be effective November 26, 2015, 40 TexReg 8341.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c317/sc/s317.4"><num value="317.4">§317.4</num><heading>Wastewater Treatment Facilities</heading><content>(a) General requirements. Whenever possible, existing data of flows and raw waste strength from the same plant or nearby plants with similar service areas should be used in design of treatment facilities. When using such data for design purposes, the variability of data should be considered and the design based on the highest flows and strengths encountered during normal operating periods taking into consideration possible infiltration/inflow. In the absence of existing data, the following are generally acceptable parameters to which must be added appropriate allowances for inflow and infiltration into the collection system to obtain plant influent characteristics.Attached Graphic(1) Effluent quality. Wastewater treatment plants shall be designed to consistently meet the effluent concentration and loading requirements of the applicable waste disposal permit. (2) Effluent quantity. The design flow of a treatment plant is defined as the wet weather, maximum 30-day average flow. The design basis shall include industrial wastewaters which will enter the sewerage system. The engineering report shall state the flow and strength of wastewaters from industries which individually contribute 5.0% or more of plant flow or loading and discuss the aspect of hazardous or toxic wastes. It is the intent of these design criteria that the permit conditions not be violated. The engineering report shall list the design influent flow and concentration of five-day biochemical oxygen demand (BOD5 ), total suspended solids (TSS), or other parameters for the following:(A) dry weather 30-day average (QD W); (B) wet weather maximum 30-day average (QD W); and(C) two-hour peak flow (Qp W). (3) Piping. The piping within all plants shall be arranged so that when one unit is out of service for repairs, plant operation will continue and emergency treatment can be accomplished. Valves and piping shall be provided and sized to allow dewatering of any unit, in order that repairs of the unit can be completed in as short a period of time as possible. Portable pumping units may be used for dewatering small treatment plants (design flow of less than 100,000 gallons per day) or interim facilities. Removed wastes must be stored for retreatment or delivered to another treatment facility for processing. Consideration shall be given in design for means to clean piping, especially piping carrying raw wastewater, sludges, scum, and grit.(4) Peak flow. For treatment unit design purposes, peak flow is defined as the highest two-hour average flow rate expected to be delivered to the treatment units under any operational condition, including periods of high rainfall (generally the two-year, 24-hour storm is assumed) and prolonged periods of wet weather. With pumped inflow, clarifiers shall have the capacity of all pumps operating at maximum wet well level unless a control system is provided that will limit the pumping rate to the firm capacity. This flow rate may also include skimmer flow, thickener overflow, filter backwash, etc. All treatment plants must be designed to hydraulically accommodate peak flows without adversely affecting the treatment processes. The engineer shall determine, by methods acceptable to the commission, the appropriate peak flow rate, including the possibility of utilizing standby pumps. The proposed two-hour peak flow rate, together with a discussion of rationale, calculations, and all supporting flow rate data shall be, unless presented in the preliminary engineering report, included in the final engineering design report. Special storm flow holding basins or flow equalization facilities can be specified to partially satisfy the requirements of this section where all treatment units within a plant are not sized for peak flow. See §317.9 of this title (relating to Appendix A) for referencing a two-year 24-hour rainfall event.(5) Auxiliary power. The need for auxiliary power facilities shall be evaluated for each plant and discussed in the preliminary and final engineering reports. Auxiliary power facilities are required for all plants, unless dual power supply arrangements can be made or unless it can be demonstrated that the plant is located in an area where electric power reliability is such that power failure for a period to cause deterioration of effluent quality is unlikely. Acceptable alternatives to auxiliary power include the ability to store influent flow or partially treated wastewater during power outage. Auxiliary power may be required by the commission for plants discharging near drinking water reservoirs, shellfish waters, or areas used for contact recreation, and for plants discharging into waters that could be unacceptably damaged by untreated or partially treated effluent. For more information on power reliability determination and emergency power alternatives, refer to §317.3(e) of this title (relating to Lift Stations).(6) Component reliability. Multiple units may be required based upon the uses of the receiving waters and the significance of the treatment units to the treatment processes.(7) Stairways, walkways, and guard rails. Basins having vertical walls terminating four or more feet above or below ground level shall provide a stairway to the walkway. Guard rails on walkways shall have adequate clearance space for maintenance operations (see §317.7 of this title (relating to Safety)).(8) Public drinking water supply connections. There shall be no water connection from any public drinking water supply system to a wastewater treatment plant facility unless made through an air gap or a backflow prevention device, in accordance with American Water Works Association (AWWA) Standard C506 (latest revision) and AWWA Manual M14. All backflow prevention devices shall be tested annually with their test and maintenance report forms retained for a minimum of three years. All washdown hoses using potable water must be equipped with atmospheric vacuum breakers located above the overflow level of the washdown area.(9) Ground movement protection. The structural design of treatment plants shall be sufficient to accommodate anticipated ground movement including any active geologic faults and allow for independent dewatering of all treatment units. Plants should not be located within 50 feet of geologic faults.(10) Odor control facilities. The need for odor control facilities shall be evaluated for each plant. Factors to be considered are the dissolved oxygen level of the incoming sewage and the type of treatment process proposed.(b) Preliminary treatment units. Bar screens, screens, or shredders through which all wastewater will pass should be provided at all plants with the exception of plants in which septic tanks, Imhoff tanks, facultative, aerated, or partially mixed lagoons represent the initial treatment unit. In the event bar screens, screens, or shredders are located four or more feet below ground level, appropriate equipment shall be provided to lift the screenings to ground elevation. Where mechanically cleaned bar screens or shredders are utilized, a backup unit or manually cleaned bar screen shall be provided. A means of diverting flow to the backup screen shall be included in the design.(1) Bar screens. Manually cleaned bar screens shall be constructed having a 30-degree to 60-degree slope to a horizontal platform which will provide for drainage of the screenings. Bar screen openings shall not be less than 3/4 inch for manually cleaned bar screens and 1/2 inch for mechanically cleaned bar screens. The channel in which the screen is placed shall allow a velocity of two feet per second or more at design flow. Velocity through the screen opening should be less than three feet per second at design flow.(2) Grit removal. Grit removal facilities should be considered for all wastewater treatment plants. Grit washing facilities shall be provided unless a burial area for the grit is provided within the plant grounds, or the grit is handled otherwise in such a manner as to prevent odors or fly breeding. Grit removal units shall have mechanical means of grit removal or other acceptable methods for grit removal. Plants which have a single grit collecting chamber shall have a bypass around the chamber. All grit collecting chambers shall be designed with the capability to be dewatered. The method of velocity control used to accomplish grit removal in gravity settling chambers shall be detailed in the final engineering report.(3) Fine screens. Fine screens, if used, shall be preceded by a bar screen. Fine screens shall not be substituted for primary sedimentation or grit removal; however, they may be used in lieu of primary treatment if fully justified by the design engineer. A minimum of two fine screens shall be provided, each capable of independent operation at peak flow. A steam cleaner or high pressure water hose shall be provided for daily maintenance of fine screens. (4) Screenings and grit disposal. All screenings and grit shall be disposed of in an approved manner. Suitable containers with lids shall be provided for holding screenings. Runoff control must be provided around the containers where applicable. Fine screen tailings are considered as infectious waste; therefore, containers must provide vector control if wastes are not disposed of daily at a Type 1 landfill.(5) Preaeration. Because preaeration may be proposed when a particular problem is anticipated, evaluation of these units will be on a case-by-case basis. Diffuser equipment shall be arranged for greatest efficiency, with consideration given to maintenance and inspection.(6) Flow equalization. Equalization should be considered to minimize random or cyclic peaking of organic or hydraulic loadings. Equalization units should be provided after screening and grit removal.(A) Aeration. Aeration may be required for odor control. When required, air supply must be sufficient to maintain 1.0 milligrams per liter (mg/liter) of dissolved oxygen in the wastewater.(B) Volume. A diurnal flow graph with supporting calculations used for sizing the equalization facility must be provided in the engineering report. Generally, an equalization facility requires a volume equivalent to 10% to 20% of the anticipated dry weather 30-day average flow. Tankage should be divided into separate compartments to allow for operational flexibility, repair, and cleaning.(c) Flow measuring devices and sampling points. A means for measuring effluent flow shall be provided at all plants. Consideration should be given to providing a means to monitor influent flow. Where average influent and effluent flows are significantly different, e.g., plants with large water surfaces located in areas of high rainfall or evaporation or plants using a portion of effluent for irrigation, both influent and effluent must be measured. Consideration should be given to internal flow monitoring devices to measure returned activated sludge and/or to facilitate splitting flows between units with special attention being given when units are of unequal size. All plants shall be provided with a readily accessible area for sampling effluent.(d) Clarifiers.(1) Inlets. Clarifier inlets shall be designed to provide uniform flow and stilling. Vertical flow velocity through the inlet stilling well shall not exceed 0.15 feet per second at peak flow. Inlet distribution channels shall not have deadened corners and shall be designed to prevent the settling of solids in the channels. Inlet structures should be designed to allow floating material to enter the clarifier.(2) Scum removal. Scum baffles and a means for the collection and disposal of scum shall be provided for primary and final clarifiers. Scum collected from final clarifiers in plants utilizing the activated sludge process, or any modification thereof, and aerated lagoons may be discharged to aeration basin(s) and/or digester or disposed of by other approved methods. Scum from all other final clarifiers and from primary clarifiers shall be discharged to the sludge digester or other approved method of disposal. Discharge of scum to any open drying area is not acceptable. Mechanical skimmers shall be used in units with a design flow greater than 25,000 gallons per day. Smaller systems may use hydraulic differential skimming provided that the scum pickup is capable of removing scum from the entire operating surface of the clarifier. Scum pumps shall be specifically designed for this purpose.(3) Effluent weirs. Effluent weirs shall be designed to prevent turbulence or localized high vertical flow velocity in the clarifiers. Weirs shall be located to prevent short circuiting flow through the clarifier and shall be adjustable for leveling. Weir loadings shall not exceed 20,000 gallons per day peak design flow per linear foot of weir length for plants with a design flow of 1.0 mgd or less. Special consideration will be given to weir loadings for plants with a design flow in excess of 1.0 million gallons per day (mgd), but such loadings shall not exceed 30,000 gallons per day peak flow per linear foot of weir.(4) Sludge lines. Means for transfer of sludge from primary, intermediate, or final clarifiers for subsequent processing shall be provided so that treatment efficiency will not be adversely affected. Gravity sludge transfer lines shall not be less than eight inches in diameter.(5) Basin sizing. Overflow rates are based on the surface area of clarifiers. The surface areas required shall be computed using the following criteria. The actual clarifier size shall be based on whichever is the larger size from the two surface area calculations (peak flow and design flow surface loading rates). The final clarifier solids loading for all activated sludge treatment processes shall not exceed 50 pounds of solids per day per square foot of surface area at peak flow rate. The following design criteria for clarifiers are based upon a side water depth of ten feet and shall be considered acceptable.Attached Graphic(6) Sidewater depth (SWD). The minimum SWD for conventional primary and intermediate clarifiers is seven feet. All final clarifiers shall have a minimum SWD of eight feet. Final clarifiers having a surface area equal to or greater than 1,250 square feet (diameter equal to or greater than 40 feet) must be provided with a minimum SWD of 10 feet.(7) Hopper bottom clarifiers. Hopper bottom clarifiers without mechanical sludge collecting equipment will only be approved for those facilities with a permitted design flow of less than 25,000 gallons per day. The required SWD for hopper bottom clarifiers may be computed using the following equation: SWD = 160 QD + 4, where SWD equals required SWD in feet and QD equals design flow in million gallons per day. Furthermore, SWD as computed previously for any flow may be reduced by crediting the upper one-third of the hopper as effective SWD if the following conditions are met:(A) clarifier surface loading rate is reduced by at least 15% from maximum loading rate as per paragraph (5) of this subsection; (B) influent stilling baffle and effluent weir are designed to prevent short circuiting;(C) detention time at peak flow is at least 1.8 hours for secondary treatment and 2.4 hours for advanced treatment; and (D) an appropriate form of flow equalization is used.(8) Sludge collection equipment. All conventional clarifier units that treat flow from a treatment plant facility with a design flow of 25,000 gallons per day or greater shall be provided with mechanical sludge collecting equipment. Hopper bottom clarifiers must have a smooth wall finish and a hopper slope of not less than 60 degrees.(9) BOD5 removal. It shall be assumed that the BOD5 removal in a primary clarifier is 35%, unless satisfactory evidence is presented to indicate that the efficiency will be otherwise. In plant efficiency calculations, it shall be assumed that the BOD5 removal in intermediate and final clarifiers is included in the calculation for the efficiency of the treatment unit preceding the intermediate or final clarifier.(e) Trickling filters.(1) General. Trickling filters are secondary aerobic biological processes which are used for treatment of sewage.(2) Basic design parameters. Trickling filters are classified according to applied hydraulic loading in million gallons per day per acre (mgd/acre) of filter media surface area, and organic loadings in pounds of biochemical oxygen demand (BOD) per day per 1,000 cubic feet of filter media (lb BOD/day-1,000 cu ft). The following factors should be considered in the selection of the design hydraulic and organic loadings: strength of the influent sewage, effectiveness of pretreatment, type of filter media, and treatment efficiency required. Typical ranges of applied hydraulic and organic loadings for the different classes of trickling filters are presented in the following table for illustrative purposes. The design engineer shall submit sufficient operating data from existing trickling filters of similar construction and operation to justify his efficiency calculations for the filters, and a filter efficiency formula from a reliable source acceptable to the commission. The formula of the National Research Council may be used when rock media is used in the trickling filter(s).Attached Graphic(3) Pretreatment. The trickling filter treatment facility shall be preceded by primary clarifiers equipped with scum and grease removal devices. Design engineers may submit operating data as justification of other alternative pretreatment devices which provide for effective removal of grit, debris, suspended solids, and excess oil and grease. Preaeration shall be provided where influent wastewater contains harmful levels of hydrogen sulfide concentrations.(4) Filter media.(A) Material specifications for rock media. The following are minimum requirements.(i) Crushed rock, slag, or similar media should not contain more than 5.0% by weight of pieces whose longest dimension is greater than three times its least dimension. The rock media should be free from thin, elongated, and flat pieces and should be free from dust, clay, sand, or fine material. Rock media should conform to the following size distribution and grading when mechanically graded over a vibrating screen with square openings:(I) passing five-inch sieve--100% by weight;(II) retained on three-inch sieve--95% to 100% by weight;(III) passing two-inch sieve--0.2% by weight;(IV) passing one-inch sieve--0.1% by weight;(V) the loss of weight by a 20-cycle sodium sulphate test, as described in the American Society of Civil Engineers Manual of Engineering and Engineering Practice Number 13, shall be less than 10%.(ii) Rock media shall not be less than four feet in depth (at the shallowest point) nor deeper than eight feet (at the deepest point of the filter).(B) Synthetic (manufactured or prefabricated) media. (i) Application of synthetic media shall be evaluated on a case-by-case basis. Suitability should be evaluated on the basis of experience with installations treating similar strength wastewater under similar hydraulic and organic loading conditions. The manufacturer's recommendations shall be included, as well as case histories involving the use of the media.(ii) Media shall be relatively insoluble in sewage and resistant to flaking or spalling, ultraviolet degradation, disintegration, erosion, aging, all common acids and alkalies, organic compounds, biological attack, and shall support the weight of a person when the media is in operation.(iii) Media depths should be consistent with the recommendations of the manufacturer.(C) Placing of media.(i) The dumping of media directly on the filter is unacceptable. Instructions for placing media shall be included in the specifications.(ii) Crushed rock, slag, and similar media shall be washed and screened or forked to remove clays, organic material, and fines.(iii) Such materials should be placed by hand to a depth of 12 inches above the underdrains and all material should be carefully placed in a manner which will not damage the underdrains. The remainder of the material may be placed by means of belt conveyors or equally effective methods approved by the engineers. Trucks, tractors, or other heavy equipment should not be driven over the filter media during or after construction.(iv) Prefabricated filter media shall be placed in accordance with recommendations provided by the manufacturer.(5) Filter hydraulics.(A) Dosing. Wastewater may be applied to the filters by siphons, pumps, or by gravity discharge from preceding treatment units when suitable flow characteristics have been developed.(B) Distribution equipment. Settled wastewater may be distributed over the filter media by rotary, horizontal, or travelling distributors, provided the equipment proposed is capable of producing the required continuity and uniformity of distribution over the entire surface of the filter. Deviation from a calculated uniformly distributed volume per unit surface area shall not exceed 10% at any portion of the filter. Filter distributors shall be designed to operate properly at all flow rates. Excessive head in the center column of rotary distributors shall be avoided, and all center columns shall have adequately sized overflow ports to prevent the head from building up sufficiently for the water to reach the bearings in the center column. Distributors shall include cleanout gates on the ends of the arms and shall also include an end nozzle to spray water on the wall of the filter to keep the edge of the media continuously wet. The filter walls shall extend at least 12 inches above the top of the ends of the distributor arms.(C) Seals. The use of mercury seals is prohibited in the distributors of newly constructed trickling filters. If an existing treatment facility is to be modified, any mercury seals in the trickling filters shall be replaced with oil or mechanical seals.(D) Distributor clearance. A minimum clearance of six inches shall be provided between the top of the filter media and the distributing nozzles.(E) Recirculation. In order to insure that the biological growth on the filter media remains active at all times, provisions shall be included in all designs for minimum recirculation during periods of low flow. This minimum recirculation shall not be considered in the evaluation of the efficiency of the filter unless it is part of the proposed specified continuous recirculation rate. Minimum flow to the filters shall not be less than 1.0 mgd/acre of filter surface. In addition, the minimum flow rate must be great enough to keep rotary distributors turning and the distribution nozzles operating properly. For facilities with a design capacity greater than or equal to 0.5 mgd and in which recirculation is included in design computations for BOD5 removal, recirculation shall be provided by variable speed pumps and a method of conveniently measuring the recycle flow rate shall be provided.(F) Surface loading. The engineering report shall include calculations of the maximum, design, and minimum surface loadings on the filter(s) in terms of mgd/acre of filter area per day (for the initial year and design year). Hydraulic loadings of filters with crushed rock, slag, or similar media shall not exceed 40 mgd/acre based on design flow. The minimum surface loading shall not be less than 1.0 mgd/acre. Loadings on synthetic (manufactured or prefabricated) filter media shall be within the ranges specified by the manufacturer.(6) Underdrain system.(A) Underdrains. Underdrains with semicircular inverts or equivalent shall be provided and the underdrainage system shall cover the entire floor of the trickling filter. Inlet openings into the underdrains shall provide an unsubmerged gross combined area of at least 15% of the surface area of the filter.(B) Hydraulics. Underdrains and the filter effluent channel floor shall have a minimum slope of 1.0%. Effluent channels shall be designed to produce a minimum velocity of two feet per second at average daily flow rate of application to the trickling filter.(C) Drain tile. Underdrains for rock media trickling filters shall be either vitrified clay or precast reinforced concrete. The use of half tile for underdrain systems is unacceptable.(D) Corrosion. Underdrain systems for synthetic media trickling filters shall be resistant to corrosion.(E) Ventilation. The underdrain system, effluent channels, and effluent pipe shall be designed to permit free passage of air. Drains, channels, and effluent pipes shall have a cross-sectional area such that not more than 50% of the cross-sectional area will be submerged at peak flow plus recirculation. Provision shall be made in the design of the effluent channels to allow the possibility of increased hydraulic loading. The underdrain system shall provide at least one square foot of ventilating area (vent stacks, ventilating holes, ventilating ports) for every 250 square feet of rock media filter plan area. Ventilating area for synthetic media underdrains will be provided as recommended by the manufacturer, but shall be at least one square foot for every 175 square feet of synthetic media trickling filter plan area.(F) Maintenance. All flow distribution devices, underdrains, channels, and pipes shall be designed so they may be maintained, flushed, and properly drained. The units shall be designed to facilitate cleaning of the distributor arms. A gate shall be provided in the wall to facilitate rodding of the distributor arms.(G) Flooding. Provisions shall be made to enable flooding of the trickling filter for filter fly control; however, consideration will be given by the commission to alternate methods of filter fly control provided that the effectiveness of the alternate method is verified at a full scale installation. This information shall be submitted with the plans and specifications.(H) Flow measurements. Means shall be provided to measure flow to the filter and recirculation flows.(f) Rotating biological contactors (RBC).(1) General.(A) RBC units shall be covered and ample ventilation provided. Working clearance of approximately 30 inches should be provided within the cover unless the covers are removable, utilizing equipment normally available on site. Enclosures shall be constructed of a suitable corrosion-resistant material.(B) The design of the RBC media shall provide for self-cleaning action due to the flow of water and air through the media. Careful selection of media that will not entrap solids should be made.(C) The RBC tank should be designed to minimize zones in which solids will settle out.(D) RBC media should be selected which is compatible with the wastewater. Selection of media can be critical where the wastewater has an industrial waste portion which either significantly increases the wastewater temperature or contains a chemical constituent which may decrease the life of the RBC media.(2) Design.(A) Pretreatment. RBC units shall be preceded by pretreatment to remove any grit, debris, and excess oil and grease which may hinder the treatment process or damage the RBC units. The design engineer should consider primary clarifiers with scum and grease collecting devices, fine screens, and oil separators. For wastes with high hydrogen sulfide concentrations, preaeration shall be provided.(B) Organic loading. The organic loading for the design of RBC units shall be based on total BOD5 in the waste going to the RBC, including any side streams. The design engineer should consider a maximum loading rate of five pounds BOD5 per day per 1,000 square feet of media in any stage, depending on the character of the influent wastewater. The maximum loading rate shall not exceed eight pounds BOD5 per day per 1,000 square feet of media in any stage. The design engineer should also consider the ratio of soluble BOD5 to total BOD5 and its possible effect on required RBC media area. Allowable organic loading for the entire RBC system shall not exceed the following criteria. Attached Graphic(C) Stages of treatment. The number of RBC units in series (stages) for BOD removal only shall be a minimum of three stages. For BOD removal and nitrification, there shall be a minimum of four stages. If the plant is designed with less stages than noted in the previous sentences of this subparagraph, the engineer must provide justification based on either full-scale operating facilities or pilot unit operational data. Any pilot unit data used in the justification must take into consideration an appropriate scale-up factor.(D) Drive system. The drive system for each RBC unit shall be selected for the maximum anticipated media load. A variable speed system should be considered to provide additional operator flexibility. The RBC units may be mechanically driven or air driven. (i) Mechanical drives.(I) Each RBC unit shall have a positively connected mechanical drive with motor and speed reduction unit to maintain the required rpm.(II) A fully assembled spare mechanical drive unit for each size shall be provided on-site.(III) Supplemental diffused air should be considered for mechanical drive systems to help remove excess biomass from the media and to help maintain the minimum dissolved oxygen concentration.(ii) Air drives.(I) Each RBC unit shall have air diffusers mounted below the media and off-center from the vertical axis of the RBC unit. Air cups mounted on the outside of the media shall collect the air to provide the driving force and maintain the required rpm.(II) Blowers shall provide enough air flow for each RBC unit plus additional capacity to double the air flow rate to any one unit while the others are running normally.(III) The blowers shall be capable of providing the required air flow with the largest unit out of service.(IV) The air diffuser line to each unit shall be mounted such that it can be removed without draining the tank or removing the RBC media.(V) An air control valve shall be installed on the air diffuser line to each RBC unit.(E) Dissolved oxygen. The RBC plant shall be designed to maintain a minimum dissolved oxygen concentration of one milligram per liter at all stages during the peak organic flow rate. Supplemental aeration may be required.(F) Nitrification. The design of an RBC plant to achieve nitrification is dependent upon a number of factors, including the concentration of ammonia in the influent, effluent ammonia concentration required, BOD5 removal required, minimum operational temperatures, and ratio of peak to design hydraulic flow. Each of these factors will impact the number of stages of treatment required and the allowable ammonia nitrogen loading (lb NH3 /day/1,000 ft2 media) required to achieve the desired levels of nitrification for a given facility. The engineer shall submit appropriate data supporting the design.(G) Design flexibility. The designer of an RBC plant should consider provisions to provide additional operational flexibility such as controlled flow to multiple first stages, alternate flow and staging arrangements, removable baffles between stages, and provision for step feed and supplemental aeration.(g) Activated sludge facilities.(1) Organic loading rates. Aeration tank volumes should be based upon full scale experience, pilot scale studies, or rational calculations based upon commonly accepted design parameters such as food to microorganism ratio, mixed liquor suspended solids, and the solids retention time. Other factors to be considered include size of the treatment plant, diurnal load variations, return flows and soluble organic loads from digesters, or sludge dewatering operations and degree of treatment required. Temperature, pH, and dissolved oxygen concentration are particularly important to consider when designing for nitrification. As a general rate, minimum aeration tank volumes shall be as set forth in the following table. Calculations must be submitted to fully justify the basis of design for any aeration basins not conforming to these minimum recommendations.Attached Graphic(A) The conventional activated sludge process is characterized by having a plug flow hydraulic regime wherein particles are discharged in the same sequence in which they enter the aeration basin. Plug flow may be approximated in long tanks with a high length-to-width ratio.(B) The contact stabilization process divides the aeration tank volume between the reaeration zone and the contact zone. The ratio of reaeration volume to contact volume ranges from 1:1 to 2:1. The hydraulic detention time in the contact zone shall be sufficient to provide removals of soluble substrates to the required levels. For domestic flows normally two hours is sufficient in the contact zone. Contact zone volume shall be based upon acceptable removal kinetics for soluble BOD5 and ammonia nitrogen.(C) Oxidation ditches (which are organically loaded consistent with this paragraph) shall have a minimum hydraulic retention time of 20 hours based on design flow. These oxidation ditch systems shall provide final clarification and return sludge capability equal to that required for the extended aeration process. There shall be a minimum of two rotors per ditch, each capable of supplying the required oxygenation capacity and maintaining a minimum channel velocity of 1.0 foot per second with one rotor out of service. The ditch shall be lined with reinforced concrete or other acceptable erosion-resistant liner material. Provision shall be made to easily vary the liquid level in the ditch to control the immersion depth of the rotor for flexibility of operation. A motor of sufficient size to maintain the proper rotor speed for continuous operation shall be provided. Rotor bearings should have grease fittings that are readily accessible to maintenance personnel. Gear housing and outboard bearings should be shielded from rotor splash.(2) Aeration basin general design considerations. Aeration tank geometry shall be arranged to provide optimum oxygen transfer and mixing for the type aeration device proposed. Aeration tanks must be constructed of reinforced concrete, steel with corrosion-resistant linings or coatings, or lined earthen basins. Liquid depths shall not be less than 8.0 feet when diffused air is used. All aeration tanks shall have a freeboard of not less than 18 inches at peak flow. Access walkways with properly designed safety handrails shall be provided to all areas that require routine maintenance. Where operators would be required to climb heights greater than four feet, properly designed stairways with safety handrails should be provided. The shape of the tank and the installation of aeration equipment should provide a means to control short circuiting through the tank. For plants designed for design flows greater than 2.0 mgd the total aeration basin volume shall be divided among two or more basins. Each treatment facility shall be designed to hydraulically pass the design two-hour peak flow with one basin out of service.(3) Sludge pumps, piping, and return sludge flow measurement. The pumps and piping for return activated sludge shall be designed to provide variable underflow rates of 200 to 400 gallons per day per square foot for each clarifier. If mechanical pumps are used, sufficient pumping units shall be provided to maintain design pumping rates with the largest single unit out of service. Sludge piping and/or channels shall be so arranged that flushing can be accomplished. A minimum pipe line velocity of three feet per second should be provided at an underflow rate of 200 gallons per day per square foot. Some method shall be provided to measure the return sludge flow from each clarifier.(4) Aeration system design.(A) General design consideration. Aeration systems shall be designed to maintain a minimum dissolved oxygen concentration of 2.0 mg/liter throughout the basin at the maximum diurnal organic loading rate and to provide thorough mixing of the mixed liquor. The design oxygen requirements for activated sludge facilities are presented in the following table. The minimum air volume requirements may be reduced with appropriate supporting performance evaluations from the manufacturer.Attached Graphic(i) Minimum air volume requirements are based upon a transfer efficiency of 4.0% in wastewater for all activated sludge processes except extended aeration, for which a wastewater transfer efficiency of 4.5% is assumed.(ii) Value in parentheses represents the minimum oxygen requirement for ditch type systems which will achieve nitrification.(B) Diffused air systems.(i) Volumetric aeration requirements. Volumetric aeration requirements shall be as determined from the preceding table unless certified diffuser performance data is presented which demonstrates transfer efficiencies greater than those used in the preparation of the table. Wastewater transfer efficiencies may be estimated for:(I) coarse bubble diffusers by multiplying the clean water transfer efficiency by 0.65%;(II) fine bubble diffusers by multiplying the clean water transfer efficiency by 0.45%. The maximum allowable wastewater transfer efficiency shall be 12%. Plants treating greater than 10% industrial wastes shall provide data to justify actual wastewater transfer efficiencies. Wastewater oxygen transfer efficiencies greater than 12% are considered innovative technology. See §317.1(a)(2)(C) of this title (relating to General Provisions) for performance bond requirements. Clean water transfer efficiencies obtained at 20 degrees Celsius shall be adjusted to reflect field conditions (i.e., wastewater transfer efficiencies) by use of the following equation.Attached Graphic(ii) Mixing requirement. Air requirements for mixing should be considered along with those required for the design organic loading. The designer is referred to Table 14-V, aerator mixing requirements in Wastewater Treatment Plant Design, a joint publication of the American Society of Civil Engineers and the Water Pollution Control Federation.(iii) Blowers and compressors. Blowers and compressors shall be of such capacity to provide the required aeration rate as well as the requirements of all supplemental units such as airlift pumps. Multiple compressor units shall be provided and shall be arranged so the capacity of the total air supply may be adjusted to meet the variable organic load to be placed on the treatment facility. The compressors shall be designed so that the maximum design air requirements can be met with the largest single unit out of service. The blower/compressor units shall automatically restart after a period of power outage or the operator or owner shall be notified by some method such as telemetry or an auto-dialer. The specified capacity of the blowers or air compressors, particularly centrifugal blowers, should take into account that the air intake temperature may reach 104 degrees Fahrenheit (40 degrees Celsius) or higher and the pressure may be less than standard (14.7 pounds per square inch absolute). The capacity of the motor drive should also take into account that the intake air may be 10 degrees Fahrenheit (-12 degrees Celsius) or less and may require oversizing of the motor or a means of reducing the rate of air delivery to prevent overheating or damage to the motor.(iv) Diffusers and piping. Each diffuser header shall include a control valve. These valves are basically for open/close operation but should be of the throttling type. The depth of each diffuser shall be adjustable. The air diffuser system, including piping, shall be capable of delivering 150% of design air requirements. The aeration system piping should be designed to minimize headlosses. Typical air velocities in air delivery piping systems are presented in the following table.Attached Graphic(5) Mechanical aeration systems. Mechanical aeration devices shall be of such capacity to provide oxygen transfer to and mixing of the tank contents equivalent to that provided by compressed air. A minimum of two mechanical aeration devices shall be provided. Two speed or variable speed drive units should be considered. The oxygen transfer capability of mechanical surface aerators shall be calculated by the use of a generally accepted formula and the calculations presented in the engineering report. Proposed clean water transfer rates in excess of 2.0 pounds per horsepower-hour shall be justified by performance data. In addition to providing sufficient oxygen transfer capability for oxygen transfer, the mechanical aeration devices shall also be required to provide sufficient mixing to prevent deposition of mixed liquor suspended solids under any flow condition. A minimum of 100 horsepower per million gallons of aeration basin volume shall be furnished.(h) Nutrient removal.(1) Nitrogen removal. Biological systems designed for nitrification and denitrification may be utilized for the conversion/removal of nitrogen. Various physical/chemical processes may be considered on a case-by-case basis.(2) Phosphorus removal.(A) Chemical treatment. Addition of lime or the salts of aluminum, or iron may be used for the chemical removal of soluble phosphorus. The phosphorus reacts with the calcium, aluminum, or iron ions to form insoluble compounds. These insoluble compounds may be flocculated with or without the addition of a coagulant aid such as a polyelectrolyte to facilitate separation by sedimentation. When adding salts of aluminum or iron, the designer should evaluate the wastewater to ensure sufficient alkalinity is available to prevent excessive depression of the wastewater or effluent pH. This is of particular importance when the system will also be required to achieve nitrification. The designer is referred to Nutrient Control, Manual of Practice FD-7 Facilities Design, published by the Water Pollution Control Federation and the Process Design Manual for Phosphorus Removal, published by the Environmental Protection Agency, for additional information. (B) Biological phosphorus removal. Biological phosphorus removal systems will be considered on a case-by-case basis for systems which can produce operating data which demonstrate the capability to remove phosphorus to the required levels. All biological systems which are required to meet a 1.0 mg/liter effluent phosphorus concentration shall make provision for standby chemical treatment to ensure the 1.0 mg/liter is achieved.(i) Aerated lagoon.(1) Horsepower. Mechanical aeration units in aerated lagoons shall have sufficient power to provide a minimum of 1.6 pounds of oxygen per pound of BOD5 applied with the largest unit out of service. If oxygen requirements control the amount of horsepower needed, proposed oxygen transfer rates in excess of two pounds per horsepower-hour must be justified by actual performance data. The amount of oxygen supplied or the pounds of BOD5 per hour that may be applied per horsepower-hour may be calculated by the use of any acceptable formula. The combined horsepower rating of the aeration units shall not be less than 30 horsepower per million gallons of aerated lagoon volume.(2) Construction. Earthen ponds shall have large sections of concrete slabs or equivalent protection under each aeration unit to prevent scouring of the earth. Concrete scour pads shall be used in all areas where the velocity exceeds one foot per second. Earthen ponds shall have protection on the slopes of the embankment at the water line to prevent erosion of the slopes from the turbulence in the lagoon. Where the horsepower level is more than 200 horsepower per million gallons of lagoon volume, the pond embankment at the water line shall be protected from erosion with riprap which may be concrete, gunite, a six-inch thick layer of asphalt-saturated or cement-stabilized earth rolled and compacted into place, or suitable rock riprap. The crest and dry slopes of embankments shall be protected from erosion by planting of grass.(3) Subsequent treatment, discharge systems. Aerated lagoon effluent will normally be routed to additional ponds for secondary treatment and to provide sufficient detention time for disinfection. The secondary ponds system shall consist of two or more ponds. Secondary pond sizing shall not exceed 35 pounds of BOD5 per acre per day. Hydraulic detention time in a combined aerated lagoon and secondary pond system shall be a minimum of 21 days (based on design flow) in order to provide adequate disinfection. In designing the secondary ponds, BOD5 removal efficiency in the aerated lagoon(s) may be calculated using the following formula.Attached Graphic(j) Wastewater stabilization ponds (secondary treatment ponds).(1) Pretreatment. Wastewater stabilization ponds shall be preceded by facilities for primary sedimentation of the raw sewage. Aerated lagoons or facultative lagoons may be utilized in place of conventional primary treatment facilities.(2) Imperviousness. All earthen structures proposed for use in domestic wastewater treatment or storage shall be constructed to protect groundwater resources. Where linings are necessary, the following methods are acceptable:(A) in-situ or placed clay soils having the following qualities may be utilized for pond lining:(i) more than 30% passing a 200-mesh sieve;(ii) liquid limit greater than 30%;(iii) plasticity index greater than 15; and(iv) a minimum thickness of two feet;(B) membrane lining with a minimum thickness of 20 mils, and an underdrain leak detection system;(C) other methods with commission approval.(3) Distribution of flow. Stabilization ponds shall be of such shape and size to insure even distribution of the wastewater flow throughout the entire pond. While the shapes of ponds may be dictated to some extent by the topography of the location, long narrow ponds are preferable and they should be oriented in the direction of the prevailing wind such that debris is blown toward the inlet. Ponds with narrow inlets or sloughs should be avoided.(4) Access area. Storm water drainage shall be excluded from all ponds. All vegetation shall be removed from within the pond area during construction. Access areas shall be cleared and maintained for a distance of at least 20 feet from the outside toes of the pond embankment walls.(5) Multiple ponds. The use of multiple ponds in pond systems is required. The operation of the ponds shall be flexible, enabling one or more ponds to be taken out of service without affecting the operation of the remaining ponds. The ponds shall be operated in series during routine operation periods.(6) Organic loading. The organic loading on the stabilization ponds, based on the total surface area of the ponds, shall not exceed 35 pounds of BOD5 per acre per day. The loading on the initial stabilization pond shall not exceed 75 pounds of BOD5 per acre per day.(7) Depth. The stabilization ponds or cells shall have a normal water depth of three to five feet.(8) Inlets and outlets. Multiple inlets and multiple outlets are required. The inlets and outlets shall be arranged to prevent short circuiting within the pond so that the flow of wastewater is distributed evenly throughout the pond. Multiple inlets and outlets shall be spaced evenly. All outlets shall be baffled with removable baffles to prevent floating material from being discharged, and shall be constructed so that the level of the pond surface may be varied under normal operating conditions. Submerged outlets shall be used to prevent the discharge of algae.(9) Embankment walls. The embankment walls should be compacted thoroughly and compaction details shall be covered in the specifications. Soil used in the embankment shall be free of foreign material such as paper, brush, and fallen trees. The embankment walls shall have a top width of at least 10 feet. Interior and exterior slope of the embankment wall should be one foot vertical to three feet horizontal. There shall be a freeboard of not less than two feet nor more than three feet based on the normal operating depth. All embankment walls shall be protected by planting grass or riprapping. Where embankment walls are subject to wave action, riprapping should be installed. Erosion stops and water seals shall be installed on all piping penetrating the embankments. Provisions should be made to change the operating level of the pond so the pond surface can be raised or lowered at least six inches.(10) Partially mixed aerated lagoons.(A) Horsepower. With partially mixed aerated lagoons, no attempt is made to keep all pond solids in suspension. Mechanical or diffused aeration equipment should be sized to provide a minimum of 1.6 pounds of oxygen per pound of BOD5 applied with the largest unit out of service. Where multiple ponds are used in series, the power input may be reduced as the influent BOD5 to each pond decreases. proposed oxygen transfer rates in excess of two pounds per horsepower-hour must be justified by actual performance data.(B) Pond sizing. Partially mixed aerated lagoons should be sized in accordance with the formula in subsection (i)(3) of this section using K-0.28. Pond length to width ratios should be three to one or four to one.(C) Imperviousness. Requirements for imperviousness, multiple cells, embankment walls, and inlets and outlets shall be the same as for other secondary treatment ponds.(k) Facultative lagoon (raw wastewater stabilization pond).(1) Configuration. The length to width ratio of the lagoon should be three to one, with flow along the length from inlets near one end to outlets at the opposite end (other configurations may be approved if adequate means of prevention of short circuiting are provided). The length should be oriented in the direction of the prevailing winds with the inlet side located such that debris will be blown toward the inlet (generally, the north-northwest side). Inlet baffles shall be provided to collect flotable material. The outlets shall be constructed so that the water level of the lagoon may be varied under normal operating conditions. Storm water drainage shall be prevented from entering the lagoon. The design engineer may wish to locate the facultative lagoon in a central location with regard to the surrounding secondary ponds to facilitate compliance with the buffer zone requirement specified in Chapter 309 of this title (relating to Domestic Wastewater Effluent Limitations and Plant Siting).(2) Imperviousness. Requirements for imperviousness shall be the same as those for secondary treatment ponds.(3) Depth. The portion of the lagoon near the inlets shall have a 10 to 12 foot depth to provide sludge storage and anaerobic treatment. This deeper portion should be approximately 25% of the area of the lagoon bottom. The remainder of the pond should have a depth of five to eight feet.(4) Organic loading. The organic loading, based on the surface area of the facultative lagoon, shall not exceed 150 pounds of BOD5 per acre per day.(5) Odor control. The facultative lagoon shall have multiple inlets and the inlets should be submerged approximately 24 inches below the water surface to minimize odor but not disturb the anaerobic zone. Capabilities for recirculation at 50% to 100% of the design flow should be provided. Care should be taken to avoid situations where siphoning of lagoon contents through submerged inlets can occur.(6) Embankment walls. Refer to subsection (j)(9) of this section.(7) Subsequent treatment. The facultative lagoon effluent will normally be routed to a wastewater stabilization pond system for secondary treatment. In designing the stabilization pond system, it may be assumed that BOD removal in the facultative lagoon is 50%. The stabilization pond system shall contain two or more ponds.(l) Filtration. Filtration must be employed as a unit operation to supplement suspended solids removal for those treatment facilities with tertiary effluent limitations (suspended solids effluent quality equal to or less than 10 mg/liter). Filtration may be employed as a unit operation for those treatment facilities with secondary or advanced secondary effluent limitations. The utilization of filtration in the design of the treatment facility normally provides effective removal of suspended biological floc and neutral density trash material which may remain in secondary clarifier effluent. Intermittent filter operation is acceptable where on line controls monitor plant performance or filters are not necessary to meet a specific discharge limitation.(1) General requirements.(A) Filter units shall be preceded by final clarifiers designed in accordance with subsection (d) of this section for secondary treatment criteria.(B) Filtered effluent, and not potable water, shall be utilized as the source of backwash water.(2) Deep bed, intermittently backwashed granular media filters.(A) Single media (sand filters), dual media (anthracite-sand filters), or mixed media filter types (nonstratified anthracite, sand, garnet, or other media) are acceptable for application; however, single media filters shall be designed for maximum filtration runs of six hours between backwash periods.(B) Design filtration rates shall not exceed three gpm/square foot for single media filters, four gpm/square foot for dual media filters, and five gpm/square foot for mixed media filters. The filter area required shall be calculated utilizing the previously listed specified rates at the design flow of the facility. A minimum of two filter units shall be provided with the required filter area calculated with one unit out of service.(C) Facilities to provide periodic treatment utilizing chlorine or other suitable agents, introduced to the influent stream of the filter units, shall be provided as an operational technique to control slime growth on the filter surface and the backwash storage basin.(D) A graded gravel layer of a minimum of 15 inches or variable thickness of other filter media support material shall be provided over the filter underdrain system. Filter media support material other than gravel will be reviewed on a case-by-case basis. Normal media depths for the various filter types are as specified below. Media depths significantly different than these must be justified to the commission. The justification must include an analysis of the backwash rates. The uniformity coefficient shall be 1.7 or less. The particle size distribution for dual and mixed media filters shall result in a hydraulic grading of material during backwash which will result in a filter bed with a pore space graded progressively coarse to fine from the top of the media to the supporting layer.Attached Graphic(E) The unit piping for the filter units shall be designed to return backwash waste to upstream treatment units. In order to minimize a hydraulic surge, a backwash tank must be included into the design for those plants that do not have some means of flow equalization or surge control. A backwash tank shall be designed to provide storage for filter backwash based upon the number of design daily backwash cycles and the volume required for each backwash. Calculations must be provided to the commission demonstrating that the performance of the plant will not diminish with the discharging of the backwash water into the treatment process. Enclosed backwash tanks shall be vented to maintain atmospheric pressure. Surge control shall be provided to the backwash system to limit flow rate variations to no more than 15% of the design flow of the treatment units that will receive the backwash water. For these calculations, an influent lift station is not considered as a treatment unit and, therefore, is not bound by the 15% design flow requirement.(F) Pumps for backwashing filter units shall be designed to deliver the required rate with the largest pump out of service. The backup pump unit may be uninstalled provided that the commission is satisfied that the spare unit can be quickly installed and placed into operation. Valve arrangement for isolating a filter unit for backwashing shall provide ready access for the operator. Provision for manual override shall be provided for any backwash system employing automatic control.(G) Head loss indicators shall be provided for all filter units.(H) Backwash for dual or mixed media filters shall provide a minimum bed expansion of 20%. A surface scour shall be provided prior to or during the backwash cycle. Backwash flow rates at 15 to 20 gpm/square foot and at a cycle time of 10 to 15 minutes should be provided. The backwash cycle shall provide media fluidization at the end of the cycle to restratify the media. Backwash for single media filters should be provided by a surface air scour or combination air-water scour and washwater at recommended rates as follows.Attached Graphic(I) The filter underdrain system shall be of a design adaptable to wastewater treatment, providing a uniform distribution of filter backwash and freedom from excessive orifice plugging. Wash water collection trough bottoms shall be located a minimum of six inches above the maximum elevations of the expanded media. A minimum freeboard of three inches shall be provided in addition to the design upstream depth of the wash water media. A minimum freeboard of three inches shall be provided in addition to the design upstream depth of the wash water trough to prevent submerged trough conditions during filter backwashing.(3) Multi-compartmented low head filters with continuous operation (automatic backwash). This paragraph contains the design criteria for multi-compartmented low head filters where the applicable criteria are different than those contained in paragraphs (1) and (2) of this subsection. All other criteria included in paragraphs (1) and (2) of this subsection will apply to multi-compartmented low head filters with continuous operation.(A) Filtration rates. Filtration rates shall not exceed three gpm/square foot for single media filters and four gpm/square foot for dual media filters based on the design flow rate applied to the filters. The total filter area should be provided in two or more units and the filtration rate shall be calculated on the total available filter area with one cell of each unit out of service. Manufacturer's recommended rates should be utilized if substantiated by test data.(B) Backwash. The backwash rate shall be adequate to fluidize and expand each media layer a minimum of 20%. Provision should be made for an approximate rate of 10 gpm/square foot over a 30 to 60 second interval. Manufacturer's recommended rates should be utilized if substantiated by test data. Pumps for backwashing filter units shall be adequate to provide the required rate with the largest pump out of service. It is permissible for the backup unit to be an uninstalled unit, provided that the installed unit can be easily removed and replaced. Waste filter backwash water shall be returned to upstream units, preferably the final clarifiers, for treatment.(C) Backwash surge control. The rate of return of waste filter backwash water to treatment units shall be controlled such that the rate does not exceed 15% of the design flow of the treatment units. The hydraulic and organic load from waste backwash water shall be considered in the overall design of the treatment plant. Where waste backwash water is returned for treatment by pumping, adequate pumping capacity shall be provided with the largest unit out of service. It is permissible for the backup unit to be an uninstalled unit, provided that the installed unit can be easily removed and replaced.(4) Alternative design for effluent polishing. Where filters are proposed to remove remaining visible particles, other criteria will be considered on a case-by-case basis.</content><note type="source"><p>Source Note: The provisions of this §317.4 adopted to be effective November 26, 2015, 40 TexReg 8341.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c317/sc/s317.5"><num value="317.5">§317.5</num><heading>Sludge Processing</heading><content>(a) General requirements.(1) Disposal requirements, agreement with. Sludge processing and treatment shall be in agreement with the requirements of the ultimate form of disposal.(2) Control of sludge and supernatant volumes. Provisions shall be made to insure that waste sludge will be discharged to the sludge digester in such a manner so as to minimize the volume of digester supernatant liquor. Provisions shall be made for the return of supernatant from sludge thickeners and digesters to the head of the treatment works or to the aeration system accounting for the impact on the treatment units.(3) Piping. All piping from clarifiers to thickeners, digesters, or other sludge processing facilities shall be arranged for ease of maintenance and with sufficient hydraulic gradient to insure the flow of sludge. Piping under stationary structures shall be arranged so that stoppages can be readily eliminated by rodding or with sewer cleaning devices. The sludge piping within the digester, including the sludge drain line, shall be a minimum of four inches in diameter. Appropriate facilities for transfer of supernatant liquor shall be provided. Piping shall include means to observe the quality of the supernatant from each of the withdrawal outlets provided. All units shall be capable of being drained independently of one another.(4) Sludge pumps. Selection of sludge transfer pumps shall be based on both the quantity and character of the anticipated solids load to be handled by them. Where mechanical pumps are used, a sufficient number of pumps shall be provided so that the design pumping capacity is available with the largest sludge pump out of service. Air lift pumps are an acceptable mechanism for sludge transfer. Duplicate design pumping capacity is not required when air lift pumps are used. Pumps used for pumping sludge shall be specifically designed for that purpose. Centrifugal sludge pumps shall have a positive suction head unless they are self-priming or equipped with some other priming device acceptable to the commission.(5) Sludge stabilization. Sludge stabilization is required for all biological treatment processes with the exception of extended aeration processes (with a solids retention time (SRT) of 20 days or more) in which case the sludge may be drawn directly to a sludge dewatering facility.(6) Sizing. Sizing requirements must be determined using the five-day biochemical oxygen demand (BOD5 ) and design flow of the raw sewage influent to the plant.(b) Aerobic digesters.(1) Sludge thickening. Aerobic digesters should be provided with sludge thickening capability.(2) Aeration. Air supplied from air compressors or blowers through diffusers shall be not less than 30 standard cubic feet per meter (scfm) per 1,000 cubic feet of aerobic digester volume. If a separate system of air compressors or blowers will supply air to the digester, then the compressor or blower system shall be designed so that the air requirements can be met with the largest single unit out of service. If mechanical aerators are used, a minimum of 1.5 horsepower per 1,000 cubic feet must be provided.(3) Mixing. Adequate mixing of the sludge shall be provided to keep the solids in suspension and to bring the deoxygenated liquid continuously to the aeration device. The amount of mixing shall be based upon the sludge characteristics, the tank geometry, and type of aeration mixing devices.(4) Volume. A digester shall provide a minimum sludge retention time of 15 days. The design volume of the aerobic digesters may be calculated using 20 cubic feet per pound BOD 5 per day. This volume should be provided in two cells capable of operating as a single or two-step unit.(5) Sludge withdrawal. Provisions shall be made to include an effective means of removing solids from the digester.(c) Anaerobic digesters.(1) Volume. The following minimum design criteria shall be used in computing the capacity of digesters with and without facilities for heating the sludge undergoing digestion and without sludge thickening ahead of the digester. Variances to the table referenced as follows for minimum digester volume may be granted provided that it can be demonstrated to the satisfaction of the commission that a minimum SRT of 30 days will be provided for unheated digesters and a minimum SRT of 15 days will be provided for heated digesters. Heating of the digester means that adequate facilities shall be provided for heating and mixing the sludge and maintaining a year-round temperature of at least 95 degrees Fahrenheit. Heating coils inside the digester are not acceptable. All heated digesters shall include a thermometer with not less than a four-inch dial to indicate the temperature of digester contents. The use of flat-bottomed digestion chambers is not acceptable. In sewage treatment plants employing sludge thickeners, the volume of the digester may be reduced, with sufficient justification, as a result of the thickeners reducing the volume of sludge going to the digester. The calculations for the required sludge digestion volume shall be based on the minimum percent solids in the sludge expected to be encountered.Attached Graphic(2) Mixing. Adequate mixing of digester contents is required for all first-stage and all single-stage digesters. Mixing may be performed by mechanical equipment, including external pumps, or by gas recirculation. The rate of mixing shall be such that the flow created in the digester is sufficient to completely mix the incoming sludge with the digester contents and prevent the formation of a scum layer.(3) Digester covers. Uncovered anaerobic digesters are not acceptable. The sludge and supernatant withdrawal piping for all single-stage and first-stage digesters with fixed covers shall be arranged in such a manner so as to minimize the possibility of air being drawn into the gas chamber above the liquid in the digester. All digester covers shall include a gas chamber adequate for the gas production anticipated. Digester covers shall be gas tight and the specifications shall require a test of every digester cover for gas leakage.(4) Gas piping and safety equipment. The gas piping shall be adequate for the volume of gas to be handled and shall be pressure tested for leakage (at 1.5 times the design pressure) before the digester is placed into operation. All gas piping shall slope at least 1/8 inch per foot to provide drainage of condensation in the gas piping. The main gas line from the digester shall have a sediment trap equipped with a drip trap. Drip traps shall be provided at all other low points in gas piping. The gas piping to every gas outlet including the pilot line to the waste gas burner shall be equipped with flame checks or flame traps. A natural or bottled gas source shall be utilized for the burner pilot. Flame traps with fusible shutoffs shall be included in all main gas lines. The gas line to the waste gas burner shall include a suitable pressure, vacuum and relief valve. Digester covers shall be equipped with an air vent which includes a flame trap, a vacuum breaker, and pressure relief valve. The main gas line shall be provided with a manometer or other acceptable device which measures the gas pressure in inches of water. Manometers may be used to measure the gas pressure in other gas lines. All manometers shall be vented to the atmosphere outside digester buildings. A gas meter to measure the rate of gas production is desirable and is mandatory on all anaerobic digester systems designed for 1.0 mgd facilities or larger. All rooms in digester buildings with floor level below grade shall be ventilated. Ventilation may be either continuous or intermittent. Ventilation, if continuous, shall provide at least six complete air changes per hour; if intermittent, at least 30 complete air changes per hour.(5) Other requirements. The discharge end of sludge inlet piping shall be separated from the overflow of the supernatant liquor withdrawal point by a minimum distance equal to the radius of the digester tank. Every digester shall be provided with an overflow. A means shall be provided by which the level can be varied from which supernatant liquor is withdrawn either automatically or by the operator. If this means is by withdrawal pipes at different levels in the digester, at least three different levels of supernatant liquor withdrawal shall be provided. All supernatant liquor withdrawal systems shall be provided with sampling cocks or other means of inspecting and testing the supernatant liquor from each level. Piping for hot water heating systems may be of any size adequate for the flow. The fresh water supply to hot water heating systems shall be from a tank with an air gap between the top of the tank and the fresh water supply pipe to prevent a cross connection between the digester hot water system and the fresh water supply system.(6) Treatment of digester supernatant liquor. Supernatant liquor from anaerobic digesters may be treated by chemical means or other acceptable methods before being returned to the plant. If the commonly used method of dosing with lime is employed, the following criteria shall apply: lime shall be applied to obtain a pH of 11.5. The lime feeder shall be capable of feeding 2,000 mg/liter of hydrated lime or its equivalent. The lime shall be mixed with the supernatant liquor by a rapid mixer or by agitation with air in a mixing chamber. After adequate mixing, the solids shall be allowed to settle. The supernatant liquor treatment system may be a batch or continuous process. If a batch process is used, the mixing and settling may be in the same tank. The sedimentation tank shall have a capacity to hold 36 hours of supernatant liquor but not less than 1.5 gallons per capita. If a continuous process is used, the sedimentation tank shall have a detention time of not less than eight hours. Solids settled from the supernatant liquor treatment are to be returned to the digester or conveyed to sludge handling facilities. The clarified supernatant liquor shall be returned to the head of the treatment works or to the aeration system.(d) Other stabilization processes.(1) Incineration and heat treatment. The equipment shall be housed in a fireproof building. Adequate facilities shall be provided for storage of sludge during the longest period that drying and or incineration units might normally be out of service for repairs or maintenance. Plans for control of odors, insects, fly ash, and for adequate facilities for the disposal of dried sludge or ash shall be provided to the commission. Prior to construction of an incineration or heat treatment facility, consultation should be made to the Texas Air Control Board for applicable emission standards and the possible requirement for a separate Texas Air Control Board permit.(2) Composting, wet oxidation, and other processes. Design information given to the commission shall include the demonstrated level of stabilization achieved by the process to be employed. Test results to verify the degree of stabilization may be required. In addition, design information shall address design and/or operational methods to minimize odor, insects, and other nuisance conditions. Sludge storage requirements for each process shall be provided to the commission. Also, the ultimate disposal method for the processed sludge shall be reflected in the waste disposal application.(e) Sludge dewatering facilities. Sludge shall be dewatered sufficiently to meet the requirements of the ultimate form of disposal.(1) Sludge drying beds.(A) Required area. The area of sludge drying beds to be provided will vary in accordance with the average rainfall, average humidity, and type of treatment process used. The required area for aerobic sludge dewatering shall be determined from §317.12 of this title (relating to Appendix D) (for anaerobic sludge dewatering, the value obtained from §317.12 of this title) may be reduced 35% to determine the required area) using a waste load based on sewage strength and the daily average flow of the raw sewage. The bed area sizing requirements shown in §317.12 of this title are for sludge drying beds utilizing a continuous underdrain media as specified in this subsection. Concrete (or similar impervious material) sludge drying beds which do not use an underdrain media may require additional area and will be evaluated on a case-by-case basis; however, in those counties of the state which experience both high rainfall and high relative humidity (Brazoria, Chambers, Fort Bend, Galveston, Hardin, Harris, Jasper, Jefferson, Liberty, Newton, and Orange), other methods of sludge dewatering should be utilized in lieu of sludge drying beds. Where sludge drying beds are used in those counties of high rainfall and humidity, provisions shall be made in the design of these beds for covering the beds, for means of accelerated dewatering, or for extra storage capacity and alternate dewatering methods to effectively dewater the sludge during inclement weather.(B) General design features. At least two sludge drying beds shall be provided and they shall be constructed at elevations above groundwater level. Construction shall be such as to exclude surface water runoff from the beds and seepage from the beds into the ground. Channels shall be of sufficient grade and size to facilitate the flow of the sludge to the various beds. Runners should be provided to facilitate sludge handling.(C) Filtrate. The filtrate (or drainage) from the sludge drying beds shall be returned to the head of the treatment works or to the aeration system.(D) Sludge removal. A splash block or slab shall be provided at the point where digested sludge is discharged onto each of the beds. Appropriate means shall be provided to facilitate the removal of the dried sludge from the beds for disposal without bed damage resulting. Every sludge drying bed should include a removal gate or stop planks in one end to provide access for machinery and trucks to remove and haul away the dried sludge.(E) Media. A minimum depth of 12 inches of filtering material, of which four to six inches is coarse sand, is required. To exclude surface water and eroded earth, the bed shall be protected by a permanent wall which shall extend at least 12 inches but not more than 24 inches above the finished surface of the beds.(2) Vacuum filters, belt filters, belt filter presses, and other mechanical dewatering filters.(A) Multiple units. Where dewatering of sludge is proposed, the design engineer shall provide data to document sufficient capacity, alternate disposal means, or storage facilities capable of maintaining normal daily operations during breakdowns, upsets, etc.(B) Filtrate. The filtrate from the filters shall be returned to the head of the treatment works or to the aeration system. Consideration shall be given to the impact of the returned filtrate on the treatment units and to providing odor and insect control facilities. (3) Portable dewatering units. If sludge is to be treated using portable mechanical dewatering units, provisions shall be made in the facility plan or preliminary engineering report for the location and connection of the portable dewatering unit(s) during facility operation.</content><note type="source"><p>Source Note: The provisions of this §317.5 adopted to be effective November 26, 2015, 40 TexReg 8341.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c317/sc/s317.6"><num value="317.6">§317.6</num><heading>Disinfection</heading><content>(a) General policy. Facilities for disinfection shall be provided to protect the public health and as an aid to plant operation. (b) Chlorination facilities.(1) Chlorination equipment. Chlorination equipment shall be selected and installed which is capable of applying desired amounts of chlorine continuously to the effluent. Chlorination equipment may also be installed to control odors and generally assist treatment. To accomplish these objectives, points of chlorine application may be established at the head of the plant for prechlorination, in the effluent chlorine contact chamber, or other suitable locations.(A) Capacity. Chlorination equipment shall have a capacity greater than the highest expected dosage to be applied. Chlorination systems shall be capable of operating under all design hydraulic conditions. Duplicate equipment with automatic switchover should be considered for standby service, so that continuous chlorination can be provided. (B) Controls. Means for automatic proportioning of the chlorine amount to be applied in accordance with the rate of effluent being treated is encouraged for all plants and may be required if a maximum chlorine residual is required in the applicable discharge permit. Manual control will be permitted where the rate of effluent flow is relatively constant and for prechlorination applications. Consideration shall also be given to controlling chlorine feed by use of demand.(C) Measurements. A scale for determining the amount of chlorine used daily, as well as the amount of chlorine remaining in the container, shall be provided.(D) Safety equipment. Self-contained breathing apparatus shall be available for use by plant personnel. The equipment should be located at a safe distance from the chlorine facilities to insure accessibility. Self-contained breathing apparatus shall be located outside the entrance to the chlorine facility.(E) Housing. Housing of chlorination equipment and cylinders of chlorine shall be in separate rooms above ground level, with the door opening to the outside, as a measure of safety. Doors should be equipped with panic hardware. The chlorination room should be separated from other rooms by gas-tight partitions and should be equipped with a clear glass, gas-tight window which permits the chlorinator to be viewed without entering the room. Forced mechanical ventilation shall be included in chlorination rooms which will provide a complete air change a minimum of every three minutes. The exhaust equipment should be automatically activated by external light switches and gas detectors that are provided with contact closures or relays. No other equipment shall be installed or stored in the chlorinator room. Vents from chlorinators, vaporizers, and pressure reducing values should be piped to the outdoors at a point not frequented by personnel, nor near a fresh air intake. Detectors and alarms should be located in each area containing chlorine gas under pressure. If gas withdrawal chlorine storage cylinders are subjected to direct sun, pressure reducing devices must be provided at the cylinders. Fire protection devices and fireproof construction is required for all chlorine storage areas. Electrical controls in chlorine facilities must be replaceable or protected against corrosion. Separate, trapless floor drains or a drain to an ample dilution point shall be provided from the chlorine storage room and from liquid feed chlorinator rooms.(F) Emergency chlorination. Emergency power should be provided for chlorination facilities.(G) Other. Chlorine rooms shall maintain a minimum temperature of 65 degrees Fahrenheit. Chlorinate solution should be prepared using treated effluent. If potable water is used, the potable water supply system must be protected by an adequate backflow prevention device. When a booster pump is required, duplicate equipment should be provided.(2) Pellets. The use of pellet systems will be considered for approval on a case-by-case basis.(3) Chlorine contact chamber design criteria.(A) Initial mixing. Rapid initial mixing of the chlorine solution and wastewater is essential for effective disinfection. Effective initial mixing can be accomplished by applying the chlorine solution in a highly turbulent flow regime created by in-line diffusers, submerged hydraulic structures, mechanical mixers, or jet mixers. The mean velocity gradient in the area of turbulent flow, or G value, shall exceed 500 sec.-1 with residence times of three to 15 seconds. Calculations supporting the design G value shall be presented in the engineering report. Mixing devices for which the mean velocity gradient is difficult to verify shall be justified by pilot or full-scale performance data.(B) Contact time. Contact chambers shall be designed to provide a minimum average hydraulic residence time (chamber volume divided by flow) of 20 minutes at the design peak hydraulic flow.(C) Contact chamber configuration. Pipe contact chambers shall be sized so that a scour velocity of at least one foot per second will be obtained at the existing maximum daily dry weather flow rate. If adequate initial mixing is not provided, contact chambers shall have a flow pathway length-to-width ratio of at least 40 and a maximum depth-to-width ratio of no greater than 1.0. This length-to-width ratio may be accomplished by baffling.(D) Sludge and scum removal. Contact chambers shall either be provided with a means to remove sludge and scum, such as a small hydraulic dredge and skimmers, without taking the contact tank out of service, or shall be configured so that one-half of the contact chamber can be drained for cleaning without interrupting flow through the other half.(c) Other means of disinfection.(1) Chemical disinfection is not normally required when the total residence time in the wastewater treatment system (based on design flow) is at least 21 days.(2) Ultraviolet light (UV) disinfection.(A) General. Ultraviolet disinfection systems are considered applicable to treated wastewaters with daily average five-day biochemical oxygen demand (BOD5 ) and total suspended solids (TSS) concentrations consistently less than 20 milligrams per liter (mg/liter).(B) Definitions.(i) Ultraviolet module--A grouping of UV germicidal lamps of a specified arc length in a quartz or teflon sleeve, sealed and supported in a single stainless steel or some other noncorrosive frame.(ii) Ultraviolet bank--A grouping of UV modules which span the entire width and depth (of flow) of the reactor.(C) Sizing, configuration, and required dosage. Ultraviolet disinfection units will be designed in accordance with methodologies presented in the United States Environmental Protection Agency Design Manual, Municipal Disinfection, EPA/625/1-86/021. Turbulent flow is necessary due to non-uniform intensity fields in an ultraviolet reactor. The proposed design shall have a Reynolds' number of greater than 6,000 at average design flows. Disinfection systems shall consist of a minimum of two ultraviolet banks in series and shall be capable of providing disinfection to permitted fecal coliform levels at the design daily average flow with the largest bank out of service.(D) System details. The ultraviolet unit shall be configured so that there is adequate space for the removal and maintenance of lamps. One person should be able to replace lamps without the aid of mechanical lifting devices, special tools, or equipment. Drains shall be provided to completely drain the ultraviolet reactor unless the equipment can be easily removed from the effluent channel, but lamps shall be replaceable without draining the unit. The materials used to construct the reactor shall be resistant to ultraviolet light. Ballasts and other electrical components shall be consistent with the ultraviolet lamp manufacturer's recommendations. Temporary screens shall be installed to protect the lamps and other fragile components from construction debris.(E) Controls. Each individual ultraviolet lamp shall be provided with a remote operation indicator. Lamp failure alarms shall also be provided for a predetermined number of lamp failures. Techniques that result in nonirradiated flow pathways are prohibited. Each ultraviolet bank shall be equipped with at least one ultraviolet intensity meter or some means to monitor changes in ultraviolet dosage; however, intensity meters shall not be relied upon to automatically control system operation. A flow control device, such as an automatic level control, shall be provided to ensure that the lamps are submerged in the effluent at all times regardless of flow rate. The automatic level control shall be arranged so that it will allow suspended solids, which may settle, to be washed out of the area of UV disinfection. Proper heating and ventilation are critical to ultraviolet system operation. Cabinets containing ballasts and or transformers shall be provided with positive filtered air ventilation and automatic shutdown alarms at high temperatures. Provisions shall also be made to maintain the ultraviolet lamps at or near their optimum operating temperature and to filter ventilating air so as to limit ultraviolet light absorbance by dust accumulations. Elapsed operation time meters shall be provided for each bank of ultraviolet lamps.(F) Cleaning. Provisions for routine cleaning such as mechanical wipers, high pressure sprayers, ultrasonic transducers, or chemical cleaning agents are required. Quartz sleeve ultraviolet systems shall have a chemical cleaning capability in addition to any ultrasonic and/or mechanical wiper systems. Cleaning solution mix and storage tanks shall have a volume of at least 125% of the reactor volume to be cleaned. A spent cleaning solution disposal plan shall be included in the engineering report.(G) Safety. Operators shall be protected from exposure to ultraviolet light during normal operations.(H) Replacement parts. Replacement part provisions shall be based on:(i) the following table which summarizes minimum requirements as a percentage of the total provided in the ultraviolet system; or(ii) a minimum of one uninstalled spare module.Attached Graphic(3) Disinfection techniques not in widespread use, such as ozonation, bromine chloride, and chlorine dioxide, will be considered for approval on a case-by-case basis. Full details of application, operation, and maintenance, and results of pilot and developmental studies, shall be furnished to the commission by the design engineer for each proposal.</content><note type="source"><p>Source Note: The provisions of this §317.6 adopted to be effective November 26, 2015, 40 TexReg 8341.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c317/sc/s317.7"><num value="317.7">§317.7</num><heading>Safety</heading><content>(a) General policy. Design of facilities should follow guidelines established under 29 Code of Federal Regulations §1901.1 (Occupational Safety and Health Administration) and other regulatory authorities.(b) Railings and stairways. Railings should conform with guidelines contained in 29 Code of Federal Regulations §1910.23. Openings in railings must have removable chains. Open valve boxes and pits must be guarded by railings. Refer to §317.4(a)(7) of this title (relating to Wastewater Treatment Facilities) for additional requirements. Steep and vertical ladders are acceptable for infrequent access to equipment. Walkways and steps must have a nonslip finish. Ladders must have flat safety tread rungs and extensions at least one foot out of a vault. Seven feet of clearance shall be provided for overhead piping, unless piping is padded to prevent head injury and warning signs are provided.(c) Electrical code. Electrical design shall conform to local electrical codes. Where there are no local electrical codes, the design shall conform to the National Electrical Code. Where a flammable gas may exist, all electrical equipment shall conform to the requirements of the National Electrical Code, Chapter 5, Articles 500-510, "Hazardous Locations." The equipment shall bear the seal of the Underwriter Laboratories, Inc. or comply with the National Electrical Code. Adequate lighting must be provided, especially in areas to be serviced by personnel on duty during hours of darkness.(d) Unsafe water. When nonpotable water is made available to any part of the plant, all yard hydrants and outlets shall be properly marked "Unsafe Water," and all underground and exposed piping shall be identified as specified in subsection (g) of this section.(e) Plant protection. The plant area shall be completely fenced and have lockable gates at all access points. Plants containing open clarifiers, aeration basins, and other open tanks shall be surrounded by an eight-foot fence with a minimum single apron barbed wire outrigger. Livestock fence may be provided in lieu of an eight-foot fence for stabilization ponds, lagoons, overland flow plots, and similar facilities. Hazard signs stating "Danger--Open Tanks--No Trespassing" must be secured to the fence, within visible sighting of each other, as well as on all gates and levees. Plants shall have at least one all-weather access road with the driving surface situated above the 100-year flood plain or be provided by an alternate method of access approved by the commission.(f) Other safety equipment. The plant as a whole, and hazardous areas in particular, shall be posted in accordance with the Hazardous Communication Act.(g) Color coding of piping. All piping both exposed and to be buried or located out of view, containing gas, chlorine, or other hazardous materials, shall be color coded. Other piping should be color coded. All nonmetallic underground plant piping should be installed with tracer type. The nonpotable waterline should also be identified with a proper color coding. This line shall be painted white and be stenciled "NON-POTABLE WATER" or "UNSAFE WATER." The following coding is recommended by the Water Pollution Control Federation. Attached Graphic(h) Portable ventilators and gas detection equipment. Portable gasoline operated ventilators must be provided for ventilating manholes. Personal gas detectors are required for wear by all personnel whose jobs require entering enclosed spaces capable of having accumulations of hydrogen sulfide or other harmful gases. An approved personnel retrieval system should be provided for continued space entry.(i) Potable water. Potable water should be provided to the plant site. Double-check backflow preventers must be provided at the main plant service. Atmospheric vacuum breakers are required at all potable water washdown hoses.(j) Freeze protection. All surfaces subject to freezing shall be adequately sloped to prevent standing water.(k) Noise levels. Noise levels in all working areas shall be kept below standards established by the Occupational Safety and Health Act. Removable noise attenuators should not be utilized.(l) Safety training. Regular safety training shall be provided to all employees.</content><note type="source"><p>Source Note: The provisions of this §317.7 adopted to be effective November 26, 2015, 40 TexReg 8341.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c317/sc/s317.8"><num value="317.8">§317.8</num><heading>Design and Operation Features</heading><content>(a) Laboratory control.(1) Facilities. Laboratory capability for operational control and testing shall be provided. The laboratory should be located on ground level and easily accessible to the treatment plant and sampling points. The laboratory should be located away from vibrating machinery or equipment which could have an adverse effect on the performance of the operation of laboratory instruments. The extent of the equipment to be provided and the specific tests to be performed will vary according to capacity and type of plant. As a minimum, provisions should be made at all plants so that chemicals and equipment are available for performing such on-site tests as settleable solids (Imhoff cone), 30-minute settleability, dissolved oxygen, pH, and chlorine residual. For plants with a design flow of 1.0 mgd to 5.0 mgd, equipment shall also be provided to determine suspended solids concentration. All plants with design flows in excess of 5.0 mgd shall have access to facilities to provide all permit required compliance monitoring, plus volatile suspended solids, nitrogen series, and alkalinity determinations (if anaerobic sludge digestion is used). Alternately, such tests may be performed under contract with other laboratories. Special consideration, for treatment plants located in remote or vandal prone areas, may be given by the commission to methods for storing chemicals and analytical equipment at an off-site location. Provisions shall be made in all cases to provide for the requirements of the commission self-reporting system procedures and for proper monitoring of significant industrial connections. These requirements are minimum requirements only; additional provisions may be needed to insure optimum plant operations. Raw waste characterization should be provided for all facilities with a design flow in excess of 5.0 mgd and for all facilities anticipating a plant expansion.(2) Air conditioning. All laboratories shall be air conditioned and heated to maintain a constant temperature.(b) Office and toilet facilities. Hand washing facilities should be provided for the protection of operating personnel. Office, showers, toilets, heating, proper lighting, and ventilation shall be provided where operators are to be stationed at the plant for operating shifts. The needs of male and female employees, the handicapped, and visitors to the plant should be considered in the design of sanitary facilities.(c) Tool shed and workshop. Appropriate facilities should be provided for the storage of tools and spare parts, and a workshop should be provided to allow repairs and maintenance.(d) Landscaping and beautification. Upon completion of the treatment plant, the grounds should be properly graded for surface drainage. Asphalt, concrete, gravel, or shell walkways should be provided for access to all treatment units and to the final sampling point. Where possible, steep slopes should be avoided to prevent erosion. Surface water shall not be allowed to drain into any unit. Particular care shall be taken to protect trickling filter beds, sludge drying beds, and intermittent sand filters from storm water runoff. Provision should be made for landscaping and plant site beautification, particularly when a plant is visible to the public.</content><note type="source"><p>Source Note: The provisions of this §317.8 adopted to be effective November 26, 2015, 40 TexReg 8341.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c317/sc/s317.9"><num value="317.9">§317.9</num><heading>Appendix A</heading><content>The following map establishes the maximum 24-hour rainfall at a two-year frequency.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §317.9 adopted to be effective November 26, 2015, 40 TexReg 8341.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c317/sc/s317.10"><num value="317.10">§317.10</num><heading>Appendix B--Overland Flow Process</heading><content>The overland flow process is the application of wastewater along the upper portion of uniformly sloped and grass-covered land and allowing it to flow in a thin sheet over the vegetated surface to runoff collection ditches. The primary objective of this process is treatment of wastewater. Utilization of this process does result in a discharge and therefore a waste discharge permit from the Texas Water Commission is required. This process is best utilized on soils with low permeability. The performance of the overland flow process is dependent on the detention time of the wastewater on the vegetated sloped area. Therefore, in order to meet a specified effluent criteria, the hydraulic loading rate, the application rate, and the effectiveness of the distribution system are essential design considerations. For detailed process design guidance, the latest edition of the Environmental Protection Agency Technology Transfer Process Design Manual for Land Treatment of Municipal Wastewater may be used.(1) Hydraulic loading rate. The hydraulic loading rate and application rate can vary depending on levels of pretreatment, quality of effluent, temperature, and other climatic conditions. A hydraulic loading rate of 1.5 to 2.0 inches per day and an application rate of six to eight gallons per hour per foot of slope width are suggested as general guides. The design rates selected and their justification shall be submitted in the design report.(2) Wastewater storage. Storage capacity for inclement weather conditions shall be provided. To minimize the impact of algae on the treatment performance, this storage shall be designed as an off-line basin, used only as needed and emptied as soon as possible by blending with other pretreated wastewater prior to application. To control odors, provisions for aeration in the storage basin should be considered.(3) Soil testing. For the overland flow process, the soil profile evaluation should extend to a depth of at least three feet. The soil sampling and testing specified in subsection (b) of this section shall be representative of the soil to this depth.(4) Other design considerations.(A) The overland flow process treatment area shall be subject to the same buffer zone requirement as a treatment plant.(B) The minimum slope length for the applied wastewater shall be 100 feet.(C) The sloped areas to receive wastewater shall be uniformly graded to eliminate wastewater ponding and short circuiting for the length of the flow. Site grading procedures and tolerances shall be included in the specifications. Minimum slopes shall equal or exceed 2.0%; maximum slope shall not exceed 8.0%. The application site shall be protected from flooding.(D) The application cycle should provide a maximum of 10 hours for dosing followed by a minimum period of 14 hours of resting.(E) The method of application shall provide uniform coverage of the area.(F) A vegetative cover shall be provided on the application site. The plant types selected shall be suitable for overland flow conditions and shall provide uniform coverage of soil to prevent short circuiting and channelization of the area.(G) Wastewater quality and disinfection requirements for overland flow process discharges will be established by the discharge permit.(H) An effluent sampling station shall be provided prior to discharge to surface waters. The sampling and reporting requirements will be established by the discharge permit.</content><note type="source"><p>Source Note: The provisions of this §317.10 adopted to be effective November 26, 2015, 40 TexReg 8341.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c317/sc/s317.11"><num value="317.11">§317.11</num><heading>Appendix C--Hyacinth Basins</heading><content>(a) Introduction.(1) Purpose. Hyacinths may be used for the removal of suspended solids from secondary effluent. Other proposed treatment applications, however, are not excluded by these criteria, and such proposals will be reviewed on a case-by-case basis.(2) Other permits. The authority to use hyacinths is contingent upon obtaining a possession permit from the Texas Parks and Wildlife Department.(3) Location. Uncovered hyacinth basins will be approved only in Cameron, Hidalgo, Kenedy, and Willacy Counties. Hyacinth basins elsewhere shall be covered with a greenhouse structure. A variance will be considered for systems which are designed for seasonal operation. Greenhouse design shall provide for adequate dike top width for equipment maneuverability, doors for personnel and equipment access, and openings for ventilation.(b) Design.(1) Multiple basins. Multiple basins shall be provided. Capacity to treat the design flow with one basin out of service shall be provided. A variance may be considered for systems which are designed for seasonal operation. Average water depth of basin shall not exceed 36 inches.(2) Basin sizing and configuration. Multiple surface inlets and outlets shall distribute flow uniformly through the basin. This may be accomplished by a weir, openings in a baffle, by a perforated pipe, or other methods. Basins of one acre or less in size are required. The bottom of the hyacinth basin shall be sloped to facilitate draining. A surge basin or some other method of flow equalization to achieve a more constant rate of inflow to the basin is desirable.(3) Barrier. A fixed barrier creating a clear zone shall be installed at the outlet to prevent the discharge of hyacinths or hyacinth seed. While screening may be used as a barrier material, a permeable rock barrier is preferred. Water depth within the outlet area shall not be more than 24 inches with the bottom covered by a layer of broken rock or washed gravel.(4) Loading. Organic loading of hyacinth basins shall not exceed 100 pounds per acre per day of five-day biochemical oxygen demand (BOD5 ) unless supplemental aeration is provided to consistently maintain an aerobic surface water layer. The maximum hydraulic loading shall not exceed 0.20 million gallons per day per acre.(5) Natural aerators and mosquito control. Exclosures shall be placed at intervals along basin edges to provide clear zones for aeration and to enhance fish production for mosquito control. Total area of exclosures should be approximately 20% of total basin area. Exclosures shall have a uniform depth of not more than 24 inches, with bottoms lined with broken rock or washed gravel. Plastic sheeting covered with a layer of broken rock or washed gravel, extending above and below operating water level, shall be placed all along inner basin berms to prevent weed growth and eliminate a mosquito breeding habitat.(c) Operation.(1) Harvesting. Adequate provisions for access, removal, and disposal of the hyacinth plants shall be provided. Removal shall be done mechanically.(2) Cleaning. Each basin shall be cleaned once each year by dewatering and removing plants and sludge.(3) Coverage. Plant coverage shall be limited to 90% of the basin area.</content><note type="source"><p>Source Note: The provisions of this §317.11 adopted to be effective November 26, 2015, 40 TexReg 8341.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c317/sc/s317.12"><num value="317.12">§317.12</num><heading>Appendix D</heading><content>The following map establishes the required area for sludge drying beds with aerobic sludges. For aerobic sludges, the value obtained from the map may be reduced by 35%.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §317.12 adopted to be effective November 26, 2015, 40 TexReg 8341.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c317/sc/s317.13"><num value="317.13">§317.13</num><heading>Appendix E--Separation Distances</heading><content>The following rules apply to separation distances between potable water and wastewater treatment plants, and waterlines and sanitary sewers.(1) Waterline/new sewer line separation. When new sanitary sewers are installed, they shall be installed no closer to waterlines than nine feet in all directions. Sewers that parallel waterlines must be installed in separate trenches. Where the nine-foot separation distance cannot be achieved, the following guidelines will apply.(A) Where a sanitary sewer parallels a waterline, the sewer shall be constructed of cast iron, ductile iron, or polyvinyl chloride (PVC) meeting American Society of Testing and Materials specifications with a pressure rating for both the pipe and joints of 150 per square inch (psi). The vertical separation shall be a minimum of two feet between outside diameters and the horizontal separation shall be a minimum of four feet between outside diameters. The sewer shall be located below the waterline.(B) Where a sanitary sewer crosses a waterline and the sewer is constructed of cast iron, ductile iron, or PVC with a minimum pressure rating of 150 psi, an absolute minimum distance of six inches between outside diameters shall be maintained. In addition, the sewer shall be located below the waterline where possible and one length of the sewer pipe must be centered on the waterline.(C) Where a sewer crosses under a waterline and the sewer is constructed of ABS truss pipe, similar semi-rigid plastic composite pipe, clay pipe, or concrete pipe with gasketed joints, a minimum two-foot separation distance shall be maintained. The initial backfill shall be cement stabilized sand (two or more bags of cement per cubic yard of sand) for all sections of sewer within nine feet of the waterline. This initial backfill shall be from one quarter diameter below the centerline of the pipe to one pipe diameter (but not less than 12 inches) above the top of the pipe.(D) Where a sewer crosses over a waterline, all portions of the sewer within nine feet of the waterline shall be constructed of cast iron, ductile iron, or PVC pipe with a pressure rating of at least 150 psi using appropriate adapters. In lieu of this procedure the new conveyance may be encased in a joint of 150 psi pressure class pipe at least 18 feet long and two nominal sizes larger than the new conveyance. The space around the carrier pipe shall be supported at five feet intervals with spacers or be filled to the spring line with washed sand. The encasement pipe should be centered on the crossing and both ends sealed with cement grout or manufactured seal.(2) Waterline manhole separation. Unless sanitary sewer manholes and the connecting sewer can be made watertight and tested for no leakage, they must be installed so as to provide a minimum of nine feet of horizontal clearance from an existing or proposed waterline. Where the nine-foot separation distance cannot be achieved, a carrier pipe as described in paragraph (1)(D) of this section may be used where appropriate.</content><note type="source"><p>Source Note: The provisions of this §317.13 adopted to be effective November 26, 2015, 40 TexReg 8341.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c317/sc/s317.15"><num value="317.15">§317.15</num><heading>Appendix G--General Guidelines for the Design of Constructed Wetlands Units for Use in Municipal Wastewater Treatment</heading><content>(a) Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Constructed wetlands--Designed and man-made complexes of saturated substrates, emergent and submergent vegetation, animal life, and water that simulates natural wetlands. Constructed wetlands as described in these rules are meant to function exclusively as wastewater treatment units. They consist of two varieties: submerged flow systems and free water surface systems. Combinations of these varieties may also be acceptable methods of treatment. Constructed wetlands are constructed treatment systems that are inundated or saturated by wastewater flows at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of flora and fauna typically adapted for life in saturated or inundated soil conditions, i.e., a wetland. Terms that are considered synonymous with constructed wetlands treatment systems are man-made wetlands, engineered wetlands, artificial wetlands, rock reed filters, vertical bio-reactor, submerged flow systems, free water surface systems, artificial marsh, marsh reed filter, botanical reactor, rooted emergent wetland filters, and microbial rock plant filters.(2) Submerged flow--A submerged flow system consists of a lined basin or channel filled with a granular rock media. The media supports the growth of both emergent vegetation on the surface and fixed bio-film on the subsurface. The wastewater flows horizontally, vertically, and transverses the subsurface of the rock media through interstices of the media and vegetation root structure. Wastewater levels are nominally maintained at least six inches below the rock media surface. Total rock media depth shall not exceed 24 inches.(3) Free water surface--The free water surface system consists of a lined basin or channel partially filled with soil or other media suitable for supporting rooted emergent and/or submergent vegetation. Wastewater flows over the top of the media and through the stalks of the emergent and/or submergent vegetation at an average depth no greater than 18 inches.(b) General considerations. These guidelines are intended for an exemplary basis. The criteria for design, construction, and operation should be based on data collected from operational data of similar facilities, pilot-plant and bench-scale studies, and/or proper engineering and scientific investigations which should be submitted at the time of review.(1) Algal mat removal. Provisions shall be made for algal mat removal from primary treated effluent prior to entering into the wetland units. These provisions may include bar screens, adjustable inlets, baffles, and other methods as approved by the commission. (2) Natural wetlands. The commission will prohibit the use of any land defined as a wetland by the United States Army Corps of Engineers in 40 Code of Federal Regulations §122.2 and subject to regulations found in the federal Clean Water Act, §404, for use in wastewater treatment. Any subsequent construction activity located in a natural wetland may require a permit from the United States Army Corps of Engineers.(3) Typical wetlands vegetation. Suggested flora for constructed wetlands in the State of Texas, include the following. (A) Emergent aquatic vegetation such as Typha spp. (cattails), Scirpus spp. (bulrush), Sagittaria spp. (arrowhead), Phragmites spp. (reeds), Juncus spp. (rushes), Eleocharis spp. (spikerush), caladium spp. (elephant ear), or other acceptable species may be used.(B) Floating aquatic vegetation such as Lemna spp. (duckweed), Hydrocotyle umbellata (water pennywort), Limnobium spongia (frogbit), Nymphaea spp. (water lily), Wolffia spp. (water meal), or other acceptable species may be used.(C) The use of indigenous plants is strongly recommended provided that these species have been proven suitable for use in wastewater treatment. Procurement of these seed plants from natural wetlands should ensure the natural wetlands are not significantly impacted.(D) The use of all harmful or potentially harmful wetlands plants and organisms, as described in 31 TAC §§57.111 - 57.118 (concerning Potentially Harmful Fish, Shellfish, or Aquatic Plants) and 31 TAC §§57.251 - 57.258 (concerning Introduction of Fish, Shellfish, and Aquatic Plants), must first be approved by the Texas Parks and Wildlife Department.(4) Allowed uses. Constructed wetlands can be used as a:(A) secondary treatment unit; or(B) advanced secondary treatment unit.(5) Primary treatment. All systems shall be preceded by primary treatment. Systems may be preceded by secondary treatment. Primary treatment can include septic tanks, Imhoff tanks, facultative lagoons, aerated lagoons, stabilization ponds, and any other treatment process which removes the settleable solids and floating material. The design of these pretreatment units shall conform with applicable state design criteria.(6) Liners. When required in the facility's permit or by the commission, basins shall be lined with an impermeable liner, either soil or synthetic, as described in subparagraphs (A) and (B) of this paragraph.(A) Soil.(i) All placed clay or in-situ soils used for basin liners shall be certified by adequate geotechnical test results. For all in-situ soils, the design engineer shall present adequate soil borings information which ensures the homogeneousness of the selected soil. Placed clay or in-situ soils shall have a measured permeability of less than 10-7 cm/sec. and/or the following characteristics:(I) more than 30% passing a #200 mesh sieve;(II) liquid limit greater than 30%;(III) plasticity index greater than 15;(IV) no clods larger than two inches;(V) minimum compacted thickness of two feet for placed clay liners and four feet for in-situ soils.(ii) All placed clay liners shall be installed according to the following criteria. However, when using in-situ soils for the required liner, only the upper six inches should be reworked as follows:(I) maximum loose lift of eight inches, six inches compacted;(II) minimum compaction effort of 95% Standard Proctor (ASTM D-698);(III) liners shall be keyed into the existing in-situ soils.(B) Synthetic. All synthetic liners shall have a minimum thickness of 30 mils and contain underdrain leak detection which shall consist of leachate collection and detection systems. Proper installation of the materials mentioned in subparagraph (A) of this paragraph shall be described in the project's specifications. The liner material shall be resistant to or protected from ultraviolet (UV) light degradation.(7) Flood hazard analysis. The 100-year flood plain elevation shall be provided. Proposed treatment units which are to be located within the 100-year flood plain will not be approved for construction unless protective measures satisfactory to the commission (such as levees or elevated treatment units) are included in the project design. If construction inside the 100-year flood plain is necessary, authorization from the proper coordinating authority must be obtained. All units must either be three feet above the 100-year flood plain or have a berm with at least three feet of freeboard above the 100-year flood plain.(8) Berms. Berms shall have side slopes of no steeper than 3:1. Berms shall be lined or constructed of impermeable clay as described in the preceding section pertaining to soil liners. All clay berms shall be keyed into the clay liner.(9) Configuration. Facilities with permitted average daily flows over 100,000 gallons per day shall conform with the following configuration standards.(A) Multiple units. The treatment system shall be divided into multiple units that can be operated separately. Each unit shall have the ability to be completely drained.(B) Parallel trains. Design considerations may include parallel treatment streams or trains which can be operated independently of each other.(C) Length to width ratio. The units shall be designed to operate as plug flow channels. A proper length to width ratio to achieve this condition should be considered in the design of each system.(D) Switching capability. The design shall allow for each unit to be taken out of service at any time and its flows routed to another unit. The treatment system must be capable of treating the daily average flow with the largest unit out of service.(E) Wind protection. All free water surface (FWS) systems shall be situated so as to minimize the adverse effects of the prevailing winds.(F) Minimum slope. All systems should maintain a minimum slope along the bottom of at least 0.075% to facilitate draining.(10) Flow distribution.(A) Inlets. All treatment units shall have multiple inlets (a minimum of three) and provide a method to mitigate erosion of the media.(B) Outlets. All treatment units shall have multiple outlets (a minimum of three). FWS outlets shall be submerged and be able to exclude floating detrital material and scum.(C) Water levels. The design should allow inlets and outlets to be raised and lowered, so that water levels within the basin can similarly be varied and provide the ability to flood the beds when necessary.(D) Basin hydraulic design.(i) Submerged flow systems (SFS). SFS systems should be designed to prevent surface ponding of wastewater. The hydraulic loading of these systems should be limited to the effective hydraulic capacity of the media in place. This effective hydraulic capacity will be a function of the clean media's hydraulic capacity reduced by root intrusion, slime layer, detritus, algae, and other blockages.(ii) Free water surface systems. FWS systems should be designed to prevent scour, erosion, and plant damage during peak flow periods. The hydraulic loading of these systems should be limited to the open channel carrying capacity of the unit at full growth.(11) Flow equalization. Flow to the units shall provide for a uniform environment and growth conducive to wetlands.(12) Initial vegetation spacing. Plants should be placed no greater than 66 inches apart (center to center). All plants to be used should be healthy, insect free, and undamaged. A broad diversity of plant species within any unit is recommended.(13) Total suspended solids (TSS) removal. The TSS removal efficiency of the wetland system is dependent on the quiescence of the system. However, if the facility is unable to meet its permitted parameters, alternate means of solids removal must be pursued.(14) Nitrification. Current wetland technology has not proven the ability to consistently nitrify typical domestic strength sewage to meet average permit limitations below 5.0 mg/liter. The design of any wetland proposed for use in this type situation will incorporate a separate nitrification process.(15) Harvesting. Harvesting of dead wetland vegetation and detritus plant matter is recommended.(c) Submerged flow system design.(1) Basic design parameters. SFS wetlands are sized according to primary and/or secondary treatment efficiency preceding the units, i.e., fraction of remaining five-day biochemical oxygen demand (BOD5 ), and the permitted 30-day average effluent discharge concentration of BOD5 . The following factors shall be considered in the selection of the design hydraulic and organic loadings: strength of the influent sewage, effectiveness of primary and/or secondary treatment, type of media, ambient wastewater temperature for winter conditions, and treatment efficiency required.(A) Rock/media design. The following are minimum requirements for material specifications of the rock media.(i) Crushed rock, slag, or similar media should not contain more than 5.0% by weight of pieces whose longest dimension is three times its least dimension. The rock media should be free from thin, elongated, and flat pieces and should be free from clay, sand, organic material, or dirt. The media should have a Morhs hardness of at least 5.0.(ii) Rock media, except for the top planting layer, should conform to the following size distribution and gradation when mechanically graded over a vibrating screen with square openings:(I) passing six-inch sieve--100% by weight;(II) retained on two-inch sieve--90% to100% by weight;(III) passing one-inch sieve--less than 0.1% by weight.(B) Installation of the rock media.(i) Rock media shall be rinsed or washed to remove sediment. This washing should be sufficient to remove any significant amounts of dirt or accumulated debris.(ii) The proper placement and installation of media is vital to the success of the system. Undue compaction exerted on the media's surface, as it is installed and after its installation, can fracture and consolidate the media. The introduction of foreign fine particles and fracturing can adversely affect the system's hydraulic conductivity. Therefore, the following guidelines are recommended.(I) A layer of smaller rock (0.5 - 1.0 inches) may be used on the top of the unit to ease planting of the vegetation and aid in vector control.(II) Media should be gently put in place, avoiding excessive dropping, jostling, and abusive handling.(III) Heavy machinery should not be allowed on the surface of the media after final placement. If machinery is allowed on the surface, all tire ruts should be smoothed over to prevent ponding in ruts.(IV) Provisions should be made prior to planting to provide water and nutrients to the plants if the system start-up will be delayed.(2) Organic loadings. The following tables present typical ranges for detention time within the system in days. Each detention time represents combinations of different classes of secondary and advanced secondary treatment and different effluent parameters. Design engineers may submit sufficient operating data for similar installations, and/or actual field conditions to justify their efficiency calculations. These times represent the theoretical detention time of wastewater within the basin. Therefore, the amount of detention volume available is equal to the basin's volume multiplied by the average porosity of the media. Evapotranspiration and precipitation should also be considered when calculating detention time. The tables are based upon an average effective porosity media of 32%, and an average wastewater treatment plant influent BOD5 of 200 mg/liter.(A) Secondary and advanced secondary treatment. The detention times in Table Number 1 are based on the fractional BOD5 remaining in the wetland system's influent and the permitted effluent limits. For permitted effluent BOD5 concentration and removal efficiencies that fall between the listed quantities, linear interpolation is permissible. Table Number 1 is based on the following assumptions:(i) ambient winter conditions wastewater temperature of 7.5 degrees Centigrade (45.5 degrees Fahrenheit); and(ii) an average wastewater treatment plant influent BOD5 of 200 mg/liter. If the wastewater winter temperature is lower than that indicated above, detention times must be modified.Attached Graphic(B) Advanced secondary treatment following pond systems only. The detention time is based on the assumption that the treatment facility is composed of a facultative lagoon followed by two stabilization ponds, each sized according to the current state design criteria found in this chapter. For applications where pond effluent is to be polished to meet an effluent BOD5 concentration of 30 mg/liter, a minimum of one-day detention time through the wetland system will be required.(3) Oxygen loadings. Since SFS should function in an aerobic environment, the wastewater dissolved oxygen level is critical. Surface area needed to maintain sufficient oxygen transfer through developed plant roots shall be designed based on approved and acceptable engineering methods.(d) Free water surface system design.(1) Basic design parameters. FWS wetlands are sized according to primary and/or secondary treatment efficiency, i.e., fraction of remaining BOD5 , and the permitted 30-day average effluent discharge concentration of BOD5 . The following factors are considered in the selection of the design hydraulic and organic loadings: strength of the influent sewage, effectiveness of primary and/or secondary treatment, type of media, ambient wastewater temperature for winter conditions, and treatment efficiency required.(2) Organic loading. The following tables present typical ranges for detention time within the wetland system in days. Each detention time represents combinations of different classes of primary and secondary treatment and the different effluent parameters. Design engineers may submit sufficient operating data for similar installations, and/or actual field conditions to justify their efficiency calculations for the wetland system. The tables are based on the following assumptions: specific surface area of the media (stems, roots, detritus, etc. 15.7 m2/m3; ambient winter conditions wastewater temperature of 7.5 degrees Centigrade (45.5 degrees Fahrenheit); and an average wastewater treatment plant influent BOD5 of 200 mg/liter.(A) Secondary treatment. These detention times are based on the type and efficiency of the primary treatment unit which precedes the FWS wetlands.(i) Septic tank or facultative pond as primary treatment method.Attached Graphic(ii) Imhoff tank or clarification as primary treatment method.Attached Graphic(B) Advanced secondary treatment. The detention times given in Table Number 4 are based on the fraction of BOD5 remaining after secondary treatment. Table Number 4 assumes a wastewater treatment plant influent BOD5 of 200 mg/liter. For percentages that fall between the listed quantities, linear interpolation is permissible.Attached Graphic(C) Vector control. The presence of mosquitos and other vectors has been associated with open water. Since the FWS systems will have open water surfaces, vector control must be a priority. Vector control mechanisms using natural controlling agents such as introduction of Gambusia spp. (mosquito fish) have been proven effective. However, if the predatory fish are used to control vectors, provisions must be made within the basin for designated open water areas so the fish can surface for oxygen. At least 20% of the basin's surface should be open to the atmosphere. Other methods of vector control may be considered. However, the introduction of chemicals (such as pesticides) should be carefully evaluated so that there are no adverse effects on vegetation or on effluent water quality.</content><note type="source"><p>Source Note: The provisions of this §317.15 adopted to be effective November 26, 2015, 40 TexReg 8341.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c318"><num value="318">CHAPTER 318</num><heading>MARINE SEAWATER DESALINATION DISCHARGES</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c318/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL REQUIREMENTS FOR MARINE SEAWATER DESALINATION DISCHARGES</heading><section identifier="/us/state/tx/tac/t30/p1/c318/scA/s318.1"><num value="318.1">§318.1</num><heading>Applicability and Purpose</heading><content>(a) The provisions of this chapter establish an expedited process for new, renewal, and amendment applications for treated marine seawater discharges, off-shore discharges, and near-shore discharges that originate from a marine seawater desalination project under Texas Water Code (TWC), Chapter 18. Discharges from a marine seawater desalination project may, alternatively, be authorized under the provisions of TWC, Chapter 26 and Chapter 305 of this title (relating to Consolidated Permits).(b) Near-shore discharges from marine seawater desalination projects are subject to, and must comply with, §318.9 of this title (relating to Discharge Zones for Near-Shore and Off-Shore Discharges) and Subchapter D of this chapter (relating to Near-Shore Discharges).(c) This chapter does not apply to discharges of waste resulting from the desalination of marine seawater into a bay, estuary, or fresh waterbody .</content><note type="source"><p>Source Note: The provisions of this §318.1 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scA/s318.2"><num value="318.2">§318.2</num><heading>Definitions</heading><content>The definitions contained in Texas Water Code, §26.001 apply to this chapter. The following words and terms, when used in this chapter, have the following meanings.(1) Affected person--A person who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the application. An interest common to members of the general public does not qualify as a personal justiciable interest. The determination of whether a person is affected shall be governed by §55.203 of this title (relating to Determination of Affected Person).(2) Application--A formal written request for commission action relative to a permit, together with all materials and documents submitted to complete the application.(3) Commission--The Texas Commission on Environmental Quality.(4) Facility--Includes all contiguous land and fixtures, structures, or appurtenances used for the collection, transportation, and treatment of marine seawater and the storage, transportation, and discharge of treated marine seawater and wastewater from a marine seawater desalination project. A facility may consist of several storage, processing, treatment, or disposal units.(5) Marine seawater--Water that is derived from the Gulf of Mexico.(6) Marine seawater desalination project--An operation that desalinates marine seawater. Marine seawater desalination project does not include other businesses, entities, or operations that do not desalinate marine seawater regardless of whether or not they are associated with the desalination operation by ownership, location, business structure, or business dependencies.(7) Near-shore discharges--The discharge of wastewater from a marine seawater desalination project into the Gulf of Mexico where the point of discharge is located less than three miles seaward from any point located on the coast of Texas. The three-mile boundary shall be determined based on the Texas General Land Office map for the Dispersant Use Pre-Approval Zone or based on a site-specific determination made by the executive director.(8) Off-shore discharges--The discharge of wastewater from a marine seawater desalination project into the Gulf of Mexico where the point of discharge is located three or more miles seaward from any point located on the coast of Texas. The three-mile boundary shall be determined based on the Texas General Land Office map for the Dispersant Use Pre-Approval Zone or based on a site-specific determination made by the executive director.(9) Operator--The person responsible for the overall operation of a facility.(10) Outfall--The point or location where treated marine seawater or wastewater is discharged from a marine seawater desalination project into or adjacent to water in the state.(11) Owner--The person who owns a facility or part of a facility.(12) Permit--A written document issued by the commission which, by its conditions, may authorize the permittee to construct, install, modify, or operate, in accordance with stated limitations, a specified facility for treated marine seawater and reject water discharges.(13) Site--The land or water area where any marine seawater desalination project is physically located or conducted, including adjacent land or water used in connection with the marine seawater desalination project.(14) Treated marine seawater--Marine seawater that has been treated to reduce salinity so as to meet standards that are at least as stringent as the water quality standards adopted by the commission applicable to the receiving stream or impoundment. More stringent treatment may be required if the commission determines it is necessary to protect water quality. Treated marine seawater is not a pollutant discharge.</content><note type="source"><p>Source Note: The provisions of this §318.2 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scA/s318.3"><num value="318.3">§318.3</num><heading>Application Requirements</heading><content>(a) Any person who requests a permit or who requests an amendment, modification, or renewal of a permit for treated marine seawater discharges or off-shore discharges shall complete, sign, and submit an application to the executive director according to the requirements of this chapter. A permittee shall keep records of data used to complete the final application and any supplemental information throughout the term of the permit.(b) It is the duty of the owner of a facility to submit an application for a permit. However, if the facility is owned by one person and operated by another, it is the duty of the operator and the owner to jointly submit an application for a permit.(c) Only one application needs to be filed for each geographical location from which treated marine seawater or wastewater is discharged, even though there may be more than one outfall requested in the application.(d) The original and three copies of the permit application shall be submitted on forms provided by or approved by the executive director, and shall be accompanied by a like number of copies of all technical supplements and attachments.(e) All applications shall be signed in accordance with §305.44 of this title (relating to Signatories to Applications).(f) Each application for a permit must include the following:(1) the name, mailing address, and location of the facility for which the application is submitted;(2) the ownership status as federal, state, private, public, or other entity;(3) the applicant's name, mailing address, email address, and telephone number;(4) a topographic map, ownership map, county highway map, or a map prepared by a Texas licensed professional engineer, Texas licensed professional geoscientist, or a registered surveyor which shows the facility and each of its intake and outfall structures. Maps must be of material suitable for a permanent record, and shall be on sheets 8-1/2 inches by 11 inches or folded to that size, and shall be on a scale of not less than one inch equals one mile. The map shall depict the approximate boundaries of the tract of property owned or to be used by the applicant and shall extend at least one mile beyond the tract boundaries sufficient to show the following:(A) each well, spring, and surface water body or other water in the state within the map area;(B) the general character of the areas adjacent to the facility, including public roads, towns and the nature of development of adjacent lands such as residential, commercial, agricultural, recreational, undeveloped, and so forth; and(C) the location of any waste disposal activities conducted on the tract not included in the application;(5) a supplementary technical report submitted in connection with an application. The report must be prepared either by a Texas licensed professional engineer, a Texas licensed professional geoscientist, or by a qualified person who is competent and experienced in the field to which the application relates and thoroughly familiar with the proposed marine seawater desalination project. The report must include the following:(A) a general description of the facilities and systems used for or in connection with the intake, collection, transportation, and treatment of marine seawater and the storage, transportation, and discharge of treated marine seawater and wastewater; and(B) for each outfall:(i) the volume and rate of the discharge of treated marine seawater and wastewater, including daily average flow, daily maximum flow, and detailed information regarding patterns of discharge; and(ii) the chemical, physical, thermal, organic, bacteriological, or radiological properties or characteristics of the wastewater, as applicable, described in enough detail to allow evaluation of the water and environmental quality considerations involved; and(6) the applicant shall provide other information as reasonably may be required by the executive director for an adequate understanding of the project, and which is necessary to provide the commission an adequate opportunity to ascertain whether the facility will be constructed and operated in compliance with all pertinent state and federal statutes.(g) If the applicant is an individual, the application shall contain:(1) the individual's full legal name and date of birth;(2) the street address of the individual's place of residence;(3) the identifying number from the individual's driver's license or personal identification certificate issued by the state or country in which the individual resides;(4) the individual's sex; and(5) any assumed business or professional name of the individual filed under Texas Business and Commerce Code, Chapter 36.</content><note type="source"><p>Source Note: The provisions of this §318.3 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scA/s318.4"><num value="318.4">§318.4</num><heading>Application Fees and Water Quality Fees</heading><content>(a) An applicant shall include with each application a fee. The application fee is due at the time that the application is filed with the commission. Unless the recommendation of the executive director is that the application be denied, the commission will not consider an application for final decision until such time as the application fee is paid.(b) The permit application fees are as follows:(1) new - $1,250;(2) major amendment (with or without renewal) of an existing permit - $1,250;(3) renewal of an existing permit - $1,215;(4) minor amendment and minor modification of an existing permit - $150.(c) An annual water quality fee will be assessed against permittees authorized under this chapter in accordance with Chapter 21 of this title (relating to Water Quality Fees).</content><note type="source"><p>Source Note: The provisions of this §318.4 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scA/s318.5"><num value="318.5">§318.5</num><heading>Permit Conditions</heading><content>(a) A permit issued under this chapter is subject to the requirements of:(1) §305.122 of this title (relating to Characteristics of Permits);(2) §305.123 of this title (relating to Reservation in Granting Permit);(3) §305.124 of this title (relating to Acceptance of Permit, Effect);(4) §305.125 of this title (relating to Standard Permit Conditions);(5) §305.127 of this title (relating to Conditions to be Determined for Individual Permits); and(6) Chapter 307 of this title (relating to Texas Surface Water Quality Standards).(b) All reports required by permits issued under this chapter and other information requested by the executive director shall be signed in accordance with §305.128 of this title (relating to Signatories to Reports).</content><note type="source"><p>Source Note: The provisions of this §318.5 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scA/s318.6"><num value="318.6">§318.6</num><heading>Amendment of a Permit</heading><content>(a) Amendments generally. A change in a term, condition, or provision of a permit requires an amendment, except corrections to permits under subsection (c)(2)(A) of this section and permit transfers under §318.8 of this title (relating to Other Permit Actions).(b) Application for amendment. An application for amendment shall include all requested changes to the permit. Information sufficient to review the application shall be submitted in the form and manner and under the procedures specified in §318.3 of this title (relating to Application Requirements). The application shall include a statement describing the reason for the requested changes.(c) Types of amendments.(1) A major amendment is an amendment that changes a substantive term, provision, requirement, or a limiting parameter of a permit.(2) A minor amendment is an amendment to improve or maintain the permitted quality or method of disposal of treated marine seawater or wastewater if there is neither a significant increase of the quantity of treated marine seawater or wastewater to be discharged nor a material change in the pattern or place of discharge. A minor amendment includes any other change to a permit issued under this chapter that will not cause or relax a standard or criterion which may result in a potential deterioration of quality of water in the state. A minor amendment may also include, but is not limited to:(A) correcting typographical errors;(B) changing an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date;(C) requiring more frequent monitoring or reporting by the permittee;(D) changing the construction schedule for a discharger. No such change shall affect a discharger's obligation to have all pollution control equipment installed and in operation before discharge; and(E) deleting an outfall when the discharge from that outfall is terminated and does not change the discharge from other outfalls except within permit limits.(d) Good cause for amendments. If good cause exists, the executive director may initiate and the commission may order a major amendment, minor amendment, or minor modification to a permit and the executive director may request an updated application if necessary. Good cause includes, but is not limited to:(1) there are material and substantial changes to the permitted facility or activity which justify permit conditions that are different or absent in the existing permit;(2) information, not available at the time of permit issuance, is received by the executive director, justifying amendment of existing permit conditions;(3) the standards or regulations on which the permit or a permit condition was based have been changed by statute, through promulgation of new or amended standards or regulations, or by judicial decision after the permit was issued; or(4) an act of God, strike, flood, material shortage, or other event over which the permittee has no control and for which there is no reasonably available alternative may be determined to constitute good cause for amendment of a compliance schedule.(e) Amendment initiated by the executive director. If the executive director determines to amend a permit, notice of the determination stating the reason for the amendment and a copy of a proposed amendment draft shall be mailed, by United States Postal Service or electronic mail, to the permittee at the last address of record with the commission.(f) Amendment initiated permit expiration. The existing permit will remain effective and will not expire until commission action on the application for amendment is final. The commission may extend the term of a permit when taking action on an application for amendment.(g) Amendment application with renewal. An application for a major amendment to a permit may include a request for a renewal of the permit.</content><note type="source"><p>Source Note: The provisions of this §318.6 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scA/s318.7"><num value="318.7">§318.7</num><heading>Renewal of a Permit</heading><content>Any permittee with an effective permit shall submit an application for renewal at least 180 days before the expiration date of the effective permit, unless permission for a later date has been granted by the executive director. The executive director shall not grant permission for applications to be submitted later than the expiration date of the existing permit.(1) An application for renewal shall be in the same form as that required for the original permit application.(2) An application for renewal shall request continuation of the same requirements and conditions of the expiring permit.(3) If an application for renewal in fact requests a modification of requirements and conditions of the existing permit, an application for amendment shall be filed in place of an application for renewal.(4) If an application for renewal is received by the executive director before the permit expiration date, the existing permit will remain in full force and effect and will not expire until commission action on the application for renewal is final.(5) The commission may deny an application for renewal for the grounds set forth in §305.66 of this title (relating to Permit Denial, Suspension, and Revocation).(6) During the renewal process, the executive director may make any changes or additions to permits authorized by §318.6 of this title (relating to Amendment of a Permit).</content><note type="source"><p>Source Note: The provisions of this §318.7 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scA/s318.8"><num value="318.8">§318.8</num><heading>Other Permit Actions</heading><content>(a) Permit transfer. A permit issued under this chapter is issued to a specific person and may be transferred only upon approval of the commission in accordance with §305.64 of this title (relating to Transfer of Permits).(b) Permit denial, suspension, and revocation. A permit issued under this chapter does not become a vested right and may be denied, suspended, or revoked in accordance with §305.66 of this title (relating to Permit Denial, Suspension, and Revocation).(c) Permit cancellation. If a permittee no longer desires to continue the activity authorized under a permit issued under this chapter, or is agreeable to a suspension of authorization for a specified period of time, the permittee should file with the executive director a written request, or a written consent and waiver in accordance with §305.67 of this title (relating to Revocation and Suspension upon Request or Consent). In the absence of a request filed by the permittee or of sufficient consent and waiver, the commission may revoke or suspend a permit in accordance with §305.66 of this title.(d) Correction to permits. Nonsubstantive changes to a permit issued under this chapter may be made in accordance with §50.145 of this title (relating to Corrections to Permits).</content><note type="source"><p>Source Note: The provisions of this §318.8 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scA/s318.9"><num value="318.9">§318.9</num><heading>Discharge Zones for Near-Shore and Off-Shore Discharges</heading><content>(a) For near-shore discharges or off-shore discharges that are authorized under the expedited procedures in this chapter, the point at which a facility may discharge wastewater resulting from the desalination of marine seawater must be located in a discharge zone identified and depicted by the Texas Parks and Wildlife Department (TPWD) and the Texas General Land Office (GLO) pursuant to Marine Seawater Desalination Diversion and Discharge Zones Study (September 2018) as amended, available on the TPWD website, and as depicted on the Coastal Resources Management Viewer, on the GLO website.(b) Discharges of wastewater resulting from the desalination of marine seawater that are not located in a discharge zone must be authorized under the requirements in Chapter 305 of this title (relating to Consolidated Permits) and Texas Water Code, Chapter 26.</content><note type="source"><p>Source Note: The provisions of this §318.9 adopted to be effective May 14, 2020, 45 TexReg 3113.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c318/scB"><num value="B">SUBCHAPTER B</num><heading>TREATED MARINE SEAWATER DISCHARGES</heading><section identifier="/us/state/tx/tac/t30/p1/c318/scB/s318.21"><num value="318.21">§318.21</num><heading>Applicability</heading><content>This subchapter applies to:(1) applications to discharge treated marine seawater from a marine seawater desalination project; and(2) applications for a consolidated permit to discharge treated marine seawater and off-shore discharges.</content><note type="source"><p>Source Note: The provisions of this §318.21 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scB/s318.22"><num value="318.22">§318.22</num><heading>Application Review for Treated Marine Seawater Discharges</heading><content>(a) Upon receipt of an application, the executive director or his designee shall assign the application a number for identification purposes.(b) Applications for permits shall be reviewed by the staff for administrative completeness within five business days of receipt of the application by the executive director.(c) If an application is received which is not administratively complete, the executive director shall notify the applicant of the deficiencies by email by the end of the five-day review period.(1) If the additional information is received within five business days of notice of the deficiency, the executive director will evaluate the information within five business days of receipt of the additional information.(2) If the additional information is not received within five business days of notice of the deficiency, the application shall be considered withdrawn unless there are extenuating circumstances.(d) After an application is determined by the executive director to be administratively complete, the executive director shall commence a technical review as necessary and appropriate for a period of time not to exceed 30 business days from the date the application is declared administratively complete.(e) If an application is received which is not technically complete, the executive director shall notify the applicant by email and prior to the end of the 30-day review period of any additional technical material as may be necessary for a complete review.(1) If the additional information is received within the timeframe established by the technical review staff, the staff will review the additional information to determine if the application is technically complete.(2) If the additional information is not received within the timeframe established by the technical review staff, and the information is considered essential by the executive director to make recommendations to the commission on a particular matter, the executive director may return the application to the applicant. In no event, however, will the applicant have less than 15 days to provide the technical data before an application is returned. Decisions to return an application during the technical review stage will be made on a case-by-case basis. The applicant has the option of having the question of sufficiency of necessary technical data referred to the commission for a decision prior to having the application returned.(f) After an application is determined by the executive director to be technically complete, the executive director shall prepare a draft permit consistent with all applicable commission rules, unless a recommendation is made not to grant an application. The draft permit will be filed with the commission to be included in the consideration of the application for permit and is subject to change during the course of the proceedings on the application. The draft permit shall be available for public review.(g) The executive director shall prepare a technical summary which sets forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft permit. The summary shall include the following information, where applicable:(1) a brief description of the marine seawater desalination project which is the subject of the draft permit;(2) the quality and quantity of treated marine seawater that is proposed to be discharged;(3) a brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions;(4) reasons why any requested variances or alternatives to required standards do or do not appear justified;(5) a description of the procedures for reaching a final decision on the draft permit, including procedures by which the public may participate in the final decision; and(6) the name and telephone number of agency personnel to contact for additional information.(h) After the draft permit and technical summary are prepared and prior to issuance of public notice, the executive director shall email the draft permit and technical summary to the applicant. The applicant shall have 10 business days to review and provide comment on the draft permit.(i) Public notice and comment must comply with procedures in §39.902 of this title (relating to Public Notice and Comment for Treated Marine Seawater Discharges).</content><note type="source"><p>Source Note: The provisions of this §318.22 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scB/s318.23"><num value="318.23">§318.23</num><heading>Public Meeting</heading><content>(a) Applications for a discharge permit for treated marine seawater shall comply with the relevant public meeting provisions in §55.154 of this title (relating to Public Meetings), except as noted in this section.(b) New, major amendment, and renewal applications have the opportunity for a public meeting. Minor amendment and minor modification applications are not subject to a public meeting.(c) Notice of a public meeting must follow the procedures in §39.902(f) and (g) of this title (relating to Public Notice and Comment for Treated Marine Seawater Discharges).</content><note type="source"><p>Source Note: The provisions of this §318.23 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scB/s318.24"><num value="318.24">§318.24</num><heading>Public Comment Processing</heading><content>(a) If timely comments are received, the following procedures shall apply to applications processed under this subchapter:(1) §55.156 of this title (relating to Public Comment Processing); and(2) §39.420(a), (b), and (f) of this title (relating to Transmittal of Executive Director's Response to Comments and Decision).(b) A public comment that is not filed with the chief clerk by the deadline provided in the notice shall be accepted by the chief clerk and placed in the application file but the chief clerk shall not process it.</content><note type="source"><p>Source Note: The provisions of this §318.24 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scB/s318.25"><num value="318.25">§318.25</num><heading>Action by the Executive Director</heading><content>Actions by the executive director under this subchapter are subject to the provisions in §§50.133, 50.135, and 50.137 of this title (relating to Executive Director Action on Application or WQMP Update; Effective Date of Executive Director Action; and Remand for Action by Executive Director, respectively).</content><note type="source"><p>Source Note: The provisions of this §318.25 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scB/s318.26"><num value="318.26">§318.26</num><heading>Motion to Overturn Executive Director's Decision</heading><content>A motion to overturn may be filed under this subchapter in accordance with the provisions in §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).</content><note type="source"><p>Source Note: The provisions of this §318.26 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scB/s318.27"><num value="318.27">§318.27</num><heading>Request for Contested Case Hearing on an Application</heading><content>(a) New, major amendment, and renewal applications have the opportunity for a contested case hearing. Minor amendment and minor modification applications are not subject to a contested case hearing.(b) Requests for a Contested Case Hearing are subject to the provisions in §§55.201, 55.203, 55.205, and 55.209 of this title (relating to Requests for Reconsideration or Contested Case Hearing; Determination of Affected Person; Request by Group or Association; and Processing Requests for Reconsideration and Contested Case Hearing, respectively).</content><note type="source"><p>Source Note: The provisions of this §318.27 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scB/s318.28"><num value="318.28">§318.28</num><heading>Direct Referrals</heading><content>The executive director or the applicant may file a request with the chief clerk that the application be sent directly to the State Office of Administrative Hearings for a hearing on the application, pursuant to the provisions in §55.210 of this title (relating to Direct Referrals).</content><note type="source"><p>Source Note: The provisions of this §318.28 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scB/s318.29"><num value="318.29">§318.29</num><heading>Action by the Commission</heading><content>Commission consideration of the following items are subject to the provisions in §§50.113, 50.115, 50.117, 50.119, and 55.211 of this title (relating to Applicability and Action on Application; Scope of Contested Case Hearings; Commission Actions; Notice of Commission Action; Motion for Rehearing; and Commission Action of Requests for Reconsideration and Contested Case Hearing, respectively). The commission may refer an application to the State Office of Administrative Hearings if the commission finds that an applicant's compliance history, as determined under Chapter 60 of this title (relating to Compliance History), raises an issue regarding the applicant's ability to comply with a material term of its permit.</content><note type="source"><p>Source Note: The provisions of this §318.29 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scB/s318.30"><num value="318.30">§318.30</num><heading>Contested Case Hearing Proceedings</heading><content>Contested case hearings on applications for discharges of treated marine seawater shall be conducted in accordance with Chapter 80 of this title (relating to Contested Case Hearings).</content><note type="source"><p>Source Note: The provisions of this §318.30 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c318/scC"><num value="C">SUBCHAPTER C</num><heading>OFF-SHORE DISCHARGES</heading><section identifier="/us/state/tx/tac/t30/p1/c318/scC/s318.40"><num value="318.40">§318.40</num><heading>Applicability</heading><content>This subchapter applies to off-shore discharges from a marine seawater desalination project.</content><note type="source"><p>Source Note: The provisions of this §318.40 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scC/s318.41"><num value="318.41">§318.41</num><heading>Application Review for Off-Shore Discharges</heading><content>(a) Upon receipt of an application, the executive director or his designee shall assign the application a number for identification purposes.(b) Applications for permits shall be reviewed by the staff for administrative completeness within five business days of receipt of the application by the executive director.(c) If an application is received which is not administratively complete, the executive director shall notify the applicant of the deficiencies by email by the end of the five-day review period.(1) If the additional information is received within five business days of notice of the deficiency, the executive director will evaluate the information within five business days of receipt of the additional information.(2) If the additional information is not received within five business days of notice of the deficiency, the application shall be considered withdrawn unless there are extenuating circumstances.(d) After an application is determined by the executive director to be administratively complete, the executive director shall commence a technical review as necessary and appropriate for a period of time not to exceed 30 business days from the date the application is declared administratively complete.(e) If an application is received which is not technically complete, the executive director shall notify the applicant by email and prior to the end of the 30-day review period of any additional technical material as may be necessary for a complete review.(1) If the additional information is received within the timeframe established by the technical review staff, the staff will review the additional information to determine if the application is technically complete.(2) If the additional information is not received within the timeframe established by the technical review staff, and the information is considered essential by the executive director to make recommendations to the commission on a particular matter, the executive director may return the application to the applicant. In no event, however, will the applicant have less than 15 days to provide the technical data before an application is returned. Decisions to return the application during the technical review stage will be made on a case-by-case basis. The applicant has the option of having the question of sufficiency of necessary technical data referred to the commission for a decision prior to having the application returned.(f) After an application is determined by the executive director to be technically complete, the executive director shall prepare a draft permit consistent with all applicable commission rules, unless a recommendation is made not to grant an application. The draft permit will be filed with the commission to be included in the consideration of the application for permit and is subject to change during the course of the proceedings on the application. The draft permit shall be available for public review.(g) The executive director shall prepare a technical summary which sets forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft permit. The summary shall include the following information, where applicable:(1) a brief description of the marine seawater desalination project which is the subject of the draft permit;(2) the sources, quality, and quantity of wastewater that is proposed to be discharged;(3) a brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions;(4) reasons why any requested variances or alternatives to required standards do or do not appear justified;(5) a description of the procedures for reaching a final decision on the draft permit, including procedures whereby the public may participate in the final decision; and(6) the name and telephone number of any persons to contact for additional information.(h) After the draft permit and technical summary are prepared and prior to issuance of public notice, the executive director shall email the draft permit and technical summary to the applicant. The applicant shall have 10 business days to review and provide comment on the draft permit.(i) Public notice and comment must comply with the procedures in §39.903 of this title (relating to Public Notice and Comment for Off-Shore Discharges).</content><note type="source"><p>Source Note: The provisions of this §318.41 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scC/s318.42"><num value="318.42">§318.42</num><heading>Action by the Executive Director</heading><content>Actions by the executive director under this subchapter are subject to the provisions in §§50.133, 50.135, and 50.137 of this title (relating to Executive Director Action on Application or WQMP Update; Effective Date of Executive Director Action; and Remand for Action by Executive Director, respectively).</content><note type="source"><p>Source Note: The provisions of this §318.42 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scC/s318.43"><num value="318.43">§318.43</num><heading>Motion to Overturn Executive Director's Decision</heading><content>A motion to overturn may be filed under this subchapter in accordance with the provisions in §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).</content><note type="source"><p>Source Note: The provisions of this §318.43 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c318/scD"><num value="D">SUBCHAPTER D</num><heading>NEAR-SHORE DISCHARGES</heading><section identifier="/us/state/tx/tac/t30/p1/c318/scD/s318.60"><num value="318.60">§318.60</num><heading>Applicability</heading><content>This subchapter applies to near-shore discharges from a marine seawater desalination project.</content><note type="source"><p>Source Note: The provisions of this §318.60 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c318/scD/s318.61"><num value="318.61">§318.61</num><heading>Application Review and Processing for Near-Shore Discharges</heading><content>Near-shore discharges are governed by the Texas Pollutant Discharge Elimination System program. As such, the permitting process for these discharges must comply with Chapters 39, 50, 55, 80, 281, and 305 of this title (relating to Public Notice; Action on Applications and Other Authorizations; Requests for Reconsideration and Contested Case Hearings; Public Comment; Contested Case Hearings; Applications Processing; and Consolidated Permits). The executive director will make every reasonable effort to expedite the administrative and technical reviews, including the use of email for correspondence.</content><note type="source"><p>Source Note: The provisions of this §318.61 adopted to be effective December 8, 2016, 41 TexReg 9571.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c319"><num value="319">CHAPTER 319</num><heading>GENERAL REGULATIONS INCORPORATED INTO PERMITS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c319/scA"><num value="A">SUBCHAPTER A</num><heading>MONITORING AND REPORTING SYSTEM</heading><section identifier="/us/state/tx/tac/t30/p1/c319/scA/s319.1"><num value="319.1">§319.1</num><heading>Monitoring and Reporting Requirements</heading><content>All holders of wastewater discharge permits are required to periodically report the status of their compliance with the terms and conditions of their permits and with other relevant statutes in a manner approved by the executive director. The report shall contain results of flow measurements and results of analyses of samples taken, or the equivalent information determined by methods approved by the executive director. The status of all requirements of the permit shall be reported. The report may contain such other information concerning the discharges covered by the permit as the executive director may reasonably prescribe in order to establish a system for monitoring the quantity and quality of wastewater discharged into or adjacent to any water in the state and for monitoring the quality of any water in the state.</content><note type="source"><p>Source Note: The provisions of this §319.1 adopted to be effective July 27, 1988, 13 TexReg 3514; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scA/s319.2"><num value="319.2">§319.2</num><heading>Exclusions for Land Application or Evaporation</heading><content>Unless otherwise specified in the permit or otherwise ordered by the commission, land application or evaporation facilities shall be excluded from the reporting procedure in §319.1 of this title (relating to Monitoring and Reporting Requirements). The commission may exempt other permittees from reporting requirements on a case-by-case basis, provided that the permitted facility shall not directly or indirectly affect the quality of water in the state. Such exclusion shall be set forth in the permit. An exclusion from the reporting procedure, however, does not relieve a permittee from monitoring and record keeping requirements.</content><note type="source"><p>Source Note: The provisions of this §319.2 adopted to be effective July 27, 1988, 13 TexReg 3514; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scA/s319.4"><num value="319.4">§319.4</num><heading>Parameters To Be Monitored</heading><content>Each permittee will be required to monitor, on a regular basis, each parameter included in its permit. Each permittee may also be required to monitor any other parameter(s) the executive director may reasonably deem necessary to adequately monitor the quality or quantity of any discharge. If the analysis of additional parameters is required, the permittee shall be provided written notification prior to the initiation of the requirement.</content><note type="source"><p>Source Note: The provisions of this §319.4 adopted to be effective July 27, 1988, 13 TexReg 3514; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scA/s319.5"><num value="319.5">§319.5</num><heading>Required Sampling Location and Frequency of Analysis or Measurement</heading><content>(a) Required samples and measurements shall be taken of the effluent from the sampling point described in the permit. Should the permit not specify a sampling point, samples shall be collected immediately following the last treatment unit. These procedures shall be followed unless an alternative sampling and/or measuring point is approved in advance in writing by the executive director.(b) Samples shall be taken and measurements shall be made at the minimum frequencies specified in the permit for each parameter. If a permit does not specify a sampling frequency, the permittee shall follow the frequencies set forth in §319.9 of this title (relating to Self-Monitoring Frequency). If a parameter included in a permit is not listed in the applicable table, the permittee will be instructed by the executive director in writing as to what frequency of analysis shall be followed.(c) The permit may specify different sampling and/or measurement frequencies than specified in §319.9 of this title on a case-by-case basis, and in such cases the permit controls.(d) For land application or evaporation facilities, the monitoring requirements shall be specified in the permit. The permittee shall monitor flow to a land application site on a daily basis and an evaporation system on a weekly basis when utilized. The specific plot or site used for land application shall be specified in the permit by name or description.(e) The monitoring requirements set out in this subchapter are minimum requirements unless the permit specifies a lesser frequency. The executive director may establish a more frequent measurement schedule, if necessary, to protect human health or the environment. Additional measurements, samples, analyses, and recordation are encouraged in order to facilitate more effective management and control of facility operations. If the permittee monitors any pollutant at the sampling point described in the permit more frequently than required by this subchapter or the permit using approved analytical methods as specified in §319.11 of this title (relating to Sampling and Laboratory Testing Methods), the results of such monitoring shall be included in the calculation and reporting of the value submitted on the required discharge monitoring report or monthly effluent report. Increased frequency of sampling shall be indicated on the report.(f) Calculations for all limitations which require averaging of measurements shall utilize an arithmetic mean unless otherwise specified in the permit.</content><note type="source"><p>Source Note: The provisions of this §319.5 adopted to be effective July 27, 1988, 13 TexReg 3514; amended to be effective October 8, 1990, 15 TexReg 5501; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scA/s319.6"><num value="319.6">§319.6</num><heading>Quality Assurance</heading><content>The permittee shall assure the quality of all measurements through the use of method blanks, laboratory control samples, duplicate analyses, and matrix spikes. At a minimum, the quality assurance requirements for wastewater analyses shall comply with Table 1 of this section.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §319.6 adopted to be effective July 27, 1988, 13 TexReg 3514; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scA/s319.7"><num value="319.7">§319.7</num><heading>Documentation of Monitoring Activities</heading><content>(a) For each measurement or sample taken, the permittee shall maintain records of the following information:(1) the records required in §305.125(11)(C) of this title (relating to Standard Permit Conditions); and(2) the technique or method of analysis, including the results of adequate verifications of analytical precision and/or accuracy verified by means of the recommended guidelines in the Environmental Protection Agency manual entitled Handbook for Analytical Quality Control in Water and Wastewater Laboratories, which are to be determined on the day the analyses are performed. The permittee shall meet the quality control requirements specified in §319.6 of this title (relating to Quality Assurance).(b) The permittee shall be subject to routine inspection of its compliance with subsection (a) of this section.(c) All records and information resulting from the required monitoring activities shall be retained at the facility site in accordance with §305.125(11)(B) of this title.(d) Unless otherwise specified in the permit, a discharge monitoring report or monthly effluent report must be submitted each month by the 20th day of the following month for each discharge which is described in the permit whether or not a discharge is made for that month.</content><note type="source"><p>Source Note: The provisions of this §319.7 adopted to be effective July 27, 1988, 13 TexReg 3514; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scA/s319.8"><num value="319.8">§319.8</num><heading>Required Signatures for Effluent Reports</heading><content>Each effluent report shall be signed in accordance with §305.128 of this title (relating to Signatories to Reports).</content><note type="source"><p>Source Note: The provisions of this §319.8 adopted to be effective July 27, 1988, 13 TexReg 3514; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scA/s319.9"><num value="319.9">§319.9</num><heading>Self-Monitoring Frequency</heading><content>(a) The following table sets forth the self-monitoring schedules applicable to treated domestic sewage effluent.Attached Graphic(b) The following table sets forth the bacteria self-monitoring schedules applicable to treated domestic sewage effluent that is discharged to water in the state.Attached Graphic(c) The following table sets forth the self-monitoring schedules applicable to nondomestic wastewater effluent.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §319.9 adopted to be effective July 27, 1988, 13 TexReg 3514; amended to be effective August 15, 2002, 27 TexReg 7166; amended to be effective November 26, 2009, 34 TexReg 8332; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scA/s319.11"><num value="319.11">§319.11</num><heading>Sampling and Laboratory Testing Methods</heading><content>(a) All sample collection shall be conducted according to recommendations found in the latest edition of Standard Methods for the Examination of Water and Wastewater (prepared and published jointly by the American Public Health Association, the American Waterworks Association, and the Water Pollution Control Federation), or the United States Environmental Protection Agency manual entitled Methods for Chemical Analysis of Water and Wastes (1979), or the United States Environmental Protection Agency manual entitled Biological Field and Laboratory Methods for Measuring the Quality of Surface Waters and Effluents (1973).(b) Sample containers, holding times, and preservation methods shall meet requirements specified in 40 Code of Federal Regulations (CFR) Part 136.(c) Effluent samples shall be analyzed according to test methods specified in 40 CFR Part 136 or more recent editions of Standard Methods for the Examination of Water and Wastewater than those cited in 40 CFR Part 136.(d) Flow measurements, equipment, installation, and procedures shall conform to those prescribed in the latest edition of Water Measurement Manual , published by the United States Department of the Interior, Bureau of Reclamation, or methods that are equivalent as approved by the executive director.(e) All laboratory tests submitted to demonstrate compliance with the permit must meet the requirements of Chapter 25 of this title (relating to Environmental Testing Laboratory Accreditation and Certification). Laboratories shall routinely use and document intralaboratory quality control practices according to the latest edition of the United States Environmental Protection Agency manual entitled Handbook for Analytical Quality Control in Water and Wastewater Laboratories. These practices must include the use of internal quality control check samples.(f) The sampling and laboratory facilities, data, and records of quality control are subject to periodic inspection by commission personnel. Should the procedures specified in this section not be suitable to any particular situation, alternate sampling and testing techniques may be employed in accordance with the procedures outlined in §319.12 of this title (relating to Alternate Sampling and Laboratory Testing Methods).</content><note type="source"><p>Source Note: The provisions of this §319.11 adopted to be effective July 27, 1988, 13 TexReg 3514; amended to be effective August 15, 2002, 27 TexReg 7166; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scA/s319.12"><num value="319.12">§319.12</num><heading>Alternate Sampling and Laboratory Testing Methods</heading><content>(a) For Texas Pollutant Discharge Elimination System (TPDES) permits, if a permittee determines the sampling and testing methods required by §319.11 of this title (relating to Sampling and Laboratory Testing Methods) are not suited to its particular situation, the permittee shall make a written request for authorization to use alternate sampling and testing procedures. Applications for alternate sampling and testing procedures shall be submitted to the executive director following the requirements of 40 Code of Federal Regulations §136.5. The permittee shall comply with the sampling and testing requirements in §319.11 of this title until written approval to use alternate methods is received from the United States Environmental Protection Agency. A permittee shall only use procedures included in the references cited in §319.11 of this title unless other test procedures have been specified in the permit.(b) For non-TPDES permits, if a permittee determines the sampling and testing methods required by §319.11 of this title are not suited to its particular situation, the permittee shall make a written request for authorization to use alternate sampling and testing procedures. Applications for alternate sampling and testing procedures shall be submitted to the executive director. The permittee shall comply with the sampling and testing requirements in §319.11 of this title until written approval to use alternate methods is received from the executive director.(1) Items that shall be included with an application for alternate sampling and testing procedures are:(A) name and address of the applicant;(B) Texas Commission on Environmental Quality permit number;(C) list of parameters for which alternate procedures are being requested;(D) copy of the method of the alternate procedures; and(E) justification for the alternate sampling and test procedures.(2) Additional information such as the comparability of data may also be requested by the executive director.</content><note type="source"><p>Source Note: The provisions of this §319.12 adopted to be effective July 27, 1988, 13 TexReg 3514; amended to be effective October 8, 1990, 15 TexReg 5501; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c319/scB"><num value="B">SUBCHAPTER B</num><heading>HAZARDOUS METALS</heading><section identifier="/us/state/tx/tac/t30/p1/c319/scB/s319.21"><num value="319.21">§319.21</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Average quality--The arithmetic average (weighted by flow value) of all the daily determinations of concentrations made during a calendar month. Daily determinations of concentrations made using a composite sample shall be the concentration of the composite sample. When grab samples are used, the daily determination of concentration shall be the arithmetic average (weighted by flow value) of all samples collected during the calendar day.(2) Daily composite quality--The concentration of a sample consisting of a minimum of three grab samples of effluent collected at regular intervals over a normal operating day and combined proportional to flow, or a sample continuously collected proportional to flow over a normal operating day.(3) Grab sample quality--The concentration of an individual sample of effluent collected in less than 15 minutes.(4) Hazardous metal--Includes each of the following metals in its elemental state and any of its compounds expressed as that metal: arsenic, barium, cadmium, chromium, copper, lead, manganese, mercury, nickel, selenium, silver, and zinc.(5) Inland waters--All surface waters in the state other than tidal waters defined in this section.(6) Tidal waters--Those waters of the Gulf of Mexico within the jurisdiction of the State of Texas, bays and estuaries thereto, and those portions of the river systems which are subject to the ebb and flow of the tides, and to the intrusion of marine waters.</content><note type="source"><p>Source Note: The provisions of this §319.21 adopted to be effective July 2, 1986, 11 TexReg 2893.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scB/s319.22"><num value="319.22">§319.22</num><heading>Quality Levels--Inland Waters</heading><content>Discharges to inland waters shall not exceed the allowable concentrations of each of the hazardous metals in Table 1 Figure of this section.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §319.22 adopted to be effective July 2, 1986, 11 TexReg 2893; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scB/s319.23"><num value="319.23">§319.23</num><heading>Quality Levels--Tidal Waters</heading><content>Discharges to tidal waters shall not exceed the allowable concentrations of each of the hazardous metals in Table 1 Figure of this section.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §319.23 adopted to be effective July 2, 1986, 11 TexReg 2893; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scB/s319.24"><num value="319.24">§319.24</num><heading>Dilution Prohibited</heading><content>The attainment of the specified levels simply by dilution, in the absence of any treatment (that is, by use of extraneous or other wastewater intermixed to dilute a particular discharge) is specifically prohibited. The mercury level in the effluent stream from the facility in which a waste containing mercury originates shall be measured after treatment and before any extraneous water or wastewater from any other sources has been added.</content><note type="source"><p>Source Note: The provisions of this §319.24 adopted to be effective July 2, 1986, 11 TexReg 2893.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scB/s319.25"><num value="319.25">§319.25</num><heading>Sampling and Analysis</heading><content>Sampling and laboratory testing procedures shall comply with §319.11 of this title (relating to Sampling and Laboratory Testing Methods) or §319.12 of this title (relating to Alternate Sampling and Laboratory Testing Methods).</content><note type="source"><p>Source Note: The provisions of this §319.25 adopted to be effective July 2, 1986, 11 TexReg 2893; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scB/s319.26"><num value="319.26">§319.26</num><heading>Toxic Pollutant</heading><content>The commission may require more stringent quality levels than those specified in §319.22 of this title (relating to Quality Levels-Inland Waters) and § 319.23 of this title (relating to Quality Levels-Tidal Waters) where necessary to insure protection of water in the state. The commission may authorize less stringent quality levels than those set forth in §319.22 of this title (relating to Quality Levels-Inland Waters) and §319.23 of this title (relating to Quality Levels-Tidal Waters) only where the applicant demonstrates that there will be no significant adverse impact on water quality and that the less stringent quality levels are necessary based on considerations consistent with the provisions of the Texas Water Code.</content><note type="source"><p>Source Note: The provisions of this §319.26 adopted to be effective July 2, 1986, 11 TexReg 2893.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scB/s319.27"><num value="319.27">§319.27</num><heading>Groundwater Protection</heading><content>Although this subchapter is directed towards discharges into surface waters in the state, it is the intention of the commission to apply the terms of this subchapter where practicable and necessary, in order to protect the quality of groundwater resources in the state.</content><note type="source"><p>Source Note: The provisions of this §319.27 adopted to be effective July 2, 1986, 11 TexReg 2893.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scB/s319.28"><num value="319.28">§319.28</num><heading>Waste Discharge Amendment</heading><content>Every wastewater discharge permit which does not currently specify effluent limitations for any of the hazardous metals covered by this subchapter is hereby amended to incorporate the terms of this subchapter. In all wastewater discharge permits which the commission may issue, renew, or amend, the quality levels specified in this subchapter shall apply where the commission does not establish specific effluent limitations regarding a particular hazardous metal.</content><note type="source"><p>Source Note: The provisions of this §319.28 adopted to be effective July 2, 1986, 11 TexReg 2893; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scB/s319.29"><num value="319.29">§319.29</num><heading>Limitations in Waste Discharge Permits Controlling</heading><content>Where wastewater discharge permits specify effluent limitations for any of the hazardous metals covered by this subchapter, the limitations contained in the permit shall be controlling.</content><note type="source"><p>Source Note: The provisions of this §319.29 adopted to be effective July 2, 1986, 11 TexReg 2893; amended to be effective November 12, 2020, 45 TexReg 8000.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c319/scC"><num value="C">SUBCHAPTER C</num><heading>PUBLIC NOTICE OF SPILLS OR ACCIDENTAL DISCHARGES FROM WASTEWATER FACILITIES OWNED OR OPERATED BY LOCAL GOVERNMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c319/scC/s319.301"><num value="319.301">§319.301</num><heading>Definitions</heading><content>The following definitions apply to this subchapter.(1) Alluvial well--A well completed in sedimentary deposits resulting from modern rivers.(2) Appropriate local government officials--(A) The county judge of a county in which a spill occurs requiring notification under §319.302 of this title (relating to Notification Requirements).(B) The county judge of a county within 1/2-mile of a spill requiring notification under §319.302 of this title.(C) The mayor and city manager of a city whose drinking water supply intake is within 1/2-mile of a spill requiring notification under §319.302 of this title.(D) The director of a water district or authority, acting under the Texas Constitution, Article III, §52, or Article XVI, §59, whose drinking water supply intake is within 1/2-mile of a spill requiring notification under §319.302 of this title.(3) Drinking water--All water:(A) distributed by any agency or individual, public or private, for the purpose of human consumption;(B) which may be used in the preparation of foods or beverages;(C) which may be used for the cleaning of any utensil or article used in the course of preparation or consumption of food or beverages for human beings;(D) supplied for human consumption; or(E) used by any institution catering to the public.(4) Facility--A wastewater treatment plant, collection facility, pumping station, or sewer pipeline owned or operated by a local government.(5) Groundwater recharge area--An area where there is direct and rapid communication of flow from the surface downward to the drinking-water aquifer.(6) Karst--A type of topography that is formed over limestone, dolomite, or gypsum by dissolving or solution, and that is characterized by closed depressions or sinkholes, caves, and underground drainage.(7) Local government--An incorporated city, a county, a river authority, or a water district or authority acting under the Texas Constitution, Article III, §52 or Article XVI, §59.(8) Local media--The daily newspapers and the radio and television media serving the counties and cities served by a facility or the aquifer area in which a spill or accidental discharge occurs, as well as these news organizations in the nearest metropolitan area.(9) Private source of drinking water--A drinking water supply that is not a public source of drinking water.(10) Public source of drinking water--A public water system which provides the public piped water for human consumption, which includes all uses described under the definition of drinking water in paragraph (3) of this section. Such a system must have a potential for at least 15 service connections or serve at least 25 individuals at least 60 days out of the year.(11) Responsible individual--The individual designated by the owner of a facility to give the notices required by §319.302 of this title.(12) Spill--An act or omission through which waste or other substances:(A) are inadvertently discharged into water in the state; or(B) will enter water in the state, unless controlled or removed.(13) Water in the state--Groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Gulf of Mexico inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.</content><note type="source"><p>Source Note: The provisions of this §319.301 adopted to be effective December 30, 1999, 24 TexReg 11774.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scC/s319.302"><num value="319.302">§319.302</num><heading>Notification Requirements</heading><content>(a) The owner of a facility must designate a responsible individual to comply with this subchapter.(b) In addition to the noncompliance notification to the commission required by §305.125(9) of this title (relating to Standard Permit Conditions) and any notification required under Chapter 327 of this title (relating to Spill Prevention and Control), the owner of a facility, through its responsible individual, must notify appropriate local government officials and the local media (see §319.301 of this title (relating to Definitions)) whenever one of the following types of spills occurs from the facility:(1) a spill, regardless of volume, that the facility owner knows or has reason to know, will adversely affect a public or private source of drinking water;(2) a spill with a volume of 50,000 gallons or more where one or more of the following conditions also exists:(A) the spill occurs within 1/2-mile of a public or private source of drinking water;(B) the spill occurs within 1/2-mile of a private drinking water well which is located within 1/2-mile of a public water supply well;(C) the spill occurs within 1/2-mile up-gradient of a surface water intake of a public or private source of drinking water;(D) the spill occurs in an active groundwater recharge area;(E) the spill occurs up-gradient and within 1/2-mile of a karst terrain or shallow alluvial well that is a source of drinking water;(3) a spill of 100,000 gallons or more.(c) The responsible individual must issue the notice as quickly as possible, but not later than 24 hours after the facility becomes aware of the spill. The notice may be hand-delivered, sent by facsimile, e-mail, or by phone with follow-up written notice. The contents of the notice must comply with §319.303 of this title (relating to Notice to Local Officials and Local Media).(d) Within 48 hours of providing notice to appropriate local government officials and local media, the responsible individual must provide to the commission regional office in whose region the spill occurred a copy of the notice, the date notice was provided to local officials and local media, and a list of notice recipients.</content><note type="source"><p>Source Note: The provisions of this §319.302 adopted to be effective December 30, 1999, 24 TexReg 11774; amended to be effective March 31, 2011, 36 TexReg 1990.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c319/scC/s319.303"><num value="319.303">§319.303</num><heading>Notice to Local Officials and Local Media</heading><content>(a) Persons responsible for a wastewater spill must ensure notice complies with subsections (b) and (c) of this section. Responsible persons may contact the commission to obtain a template which may be used in the event of a wastewater spill.(b) For all wastewater spills as referenced in §319.302(b) of this title (relating to Notification Requirements) the notice must contain the following:(1) one of the following statements:(A) a spill from a wastewater treatment facility has occurred; or(B) a spill from a collection facility has occurred;(2) the facility name;(3) person to contact for further information;(4) the location of the spill;(5) the estimated date and time of the spill;(6) the estimated volume of the spill (number of gallons);(7) the type of the spill (domestic, industrial, etc.);(8) a description of the area potentially affected, including a down-gradient and lateral distance from the spill site;(9) the suspected cause of the spill; and(10) a list of actions that have been taken including, but not limited to:(A) notification of:(i) appropriate local government officials; and(ii) the TCEQ regional office;(B) containment of the spill;(C) increased monitoring of water supply systems; and(D) initiation or completion of clean up activities.(c) If the wastewater spill meets the conditions of §319.302(b)(2) and/or (b)(3) of this title then the notice must also contain the following precautionary statements:(1) Persons using private drinking water supply wells located within 1/2-mile of the spill site or within the potentially affected area should use only water that has been distilled or boiled at a rolling boil for at least one minute for all personal uses including drinking, cooking, bathing, and tooth brushing. Individuals with private water wells should have their well water tested and disinfected, if necessary, prior to discontinuing distillation or boiling.(2) Persons who purchase water from a public water supply may contact their water supply distributor to determine if the water is safe for personal use.(3) The public should avoid contact with waste material, soil, or water in the area potentially affected by the spill.(4) If the public comes into contact with waste material, soil, or water potentially affected by the spill, they should bathe and wash clothes thoroughly as soon as possible.</content><note type="source"><p>Source Note: The provisions of this §319.303 adopted to be effective December 30, 1999, 24 TexReg 11774; amended to be effective March 31, 2011, 36 TexReg 1990.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c321"><num value="321">CHAPTER 321</num><heading>CONTROL OF CERTAIN ACTIVITIES BY RULE</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c321/scA"><num value="A">SUBCHAPTER A</num><heading>BOAT SEWAGE DISPOSAL</heading><section identifier="/us/state/tx/tac/t30/p1/c321/scA/s321.1"><num value="321.1">§321.1</num><heading>Authority</heading><content>The provisions in this subchapter are issued under the authority of Texas Water Code, Chapter 26, Water Quality Control.</content><note type="source"><p>Source Note: The provisions of this §321.1 adopted to be effective November 11, 2010, 35 TexReg 9910.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scA/s321.2"><num value="321.2">§321.2</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Boat--Any vessel or other watercraft, whether moved by oars, paddles, sails, or other power mechanism, inboard or outboard, or any other vessel or structure floating on surface water in the state, whether or not capable of self-locomotion, including but not limited to cabin cruisers, houseboats, barges, marinas, and similar floating objects. The term does not include a vessel subject to inspection under 46 United States Code, §3301.(2) Boat pump-out station--Any private or public shoreside, mobile, or floating installation either independent of or in addition to an organized waste collection, treatment, and disposal system used to receive boat sewage.(3) Clear Lake--That body of water located in Harris and Galveston Counties and commonly referred to as "Clear Lake" and its immediate tributaries including: Clear Creek east of Interstate Highway 45; Cow Bayou south of NASA Road 1; Horsepen and Armand Bayous south of Bay Area Boulevard; Taylor Lake south of Red Bluff Road; and to the confluence with Galveston Bay at the navigation light in Kemah.(4) Holding tank--Any tank or receptacle used for retaining sewage.(5) Houseboat--Any boat or floating structure on surface water in the state, capable of being used as a stationary and/or mobile residence that usually, but not necessarily, contains plumbing fixtures.(6) Marine sanitation device--Any sanitation device for use on any boat, which is designed to receive, retain, treat or dispose of sewage. Marine sanitation device Types I, II, and III shall be defined as provided in 33 Code of Federal Regulations Part 159.(7) No discharge zone--Any surface water in the state where the discharge of boat sewage is prohibited.(8) Sewage--Human body wastes and wastes derived from domestic activities, such as washing, bathing, and food preparation, discharged into marine sanitation devices and boat pump-out stations.(9) Shoreside, mobile, or floating installation--Marinas and other installations servicing boats on surface water in the state.(10) Surface water in the state--All lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Gulf of Mexico out three nautical miles into the Gulf, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state, except waters beyond three nautical miles of any shore in the state.(11) Toilet--Any sanitation device used on a boat which is designed to receive, retain, or dispose of sewage when connected to a marine sanitation device.</content><note type="source"><p>Source Note: The provisions of this §321.2 adopted to be effective November 11, 2010, 35 TexReg 9910.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scA/s321.3"><num value="321.3">§321.3</num><heading>Discharge Prohibited</heading><content>(a) The discharge of sewage which has not been treated in accordance with federal standards specified in 40 Code of Federal Regulations (CFR) Part 140 is prohibited into any surface water in the state.(b) No person may discharge sewage, treated or untreated, from a boat into:(1) any inland freshwater lake, freshwater reservoir, or other freshwater impoundment whose inlets or outlets are as such to prevent the entry or exit of vessel traffic;(2) any river not capable of navigation by interstate vessel traffic; or(3) Clear Lake or any other state designated and federally recognized no discharge zone.(c) With the exception of those waterbodies identified in subsection (b) of this section, a person may discharge sewage that has been treated in accordance with federal standards specified in 40 CFR Part 140 from a boat into the following areas:(1) coastal waters that begin from any shore of the state moving seaward to a point three nautical miles into the Gulf of Mexico; and(2) any river that is accessible from the Gulf of Mexico starting from the mouth of the river moving inland up to the point where navigation by the boat is no longer capable.</content><note type="source"><p>Source Note: The provisions of this §321.3 adopted to be effective November 11, 2010, 35 TexReg 9910.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scA/s321.4"><num value="321.4">§321.4</num><heading>Requirements for Marine Sanitation Devices</heading><content>(a) Any marine sanitation device installed on a boat shall meet the requirements specified in 33 Code of Federal Regulations (CFR) Part 159.(b) If a Type I or Type II marine sanitation device is installed on any boat, the operator shall secure the device using an acceptable method described in 33 CFR Part 159 to prevent the discharge of treated or untreated sewage while located on a no discharge zone.(c) A portable marine sanitation device that is designed to facilitate the carry-off of sewage for onshore disposal is acceptable as an additional marine sanitation device on any boat other than a houseboat.(d) All houseboats, regardless of length, shall be equipped with at least one permanently installed toilet which shall be properly connected to a Type III marine sanitation device. The toilet may be simultaneously connected to both a Type III marine sanitation device and to another approved marine sanitation device only if the valve or other mechanism between the two devices are set to direct all sewage to the Type III marine sanitation device and shall be locked or otherwise secured by the boat operator in a manner that will prevent the discharge of treated or untreated sewage while the vessel is located on a no discharge zone.(e) Contents of a holding tank, whether permanently installed or portable, may be disposed of only by the following methods:(1) discharge into a boat pump-out station approved and certified under this subchapter;(2) discharge into an adequately-sized on-site sewage facility permitted to receive boat sewage in accordance with Texas Health and Safety Code, Chapter 366 and Chapter 285 of this title (relating to On-Site Sewage Facilities); or(3) pick up and discharge by a transporter registered under Chapter 312, Subchapter G of this title (relating to Transporters and Temporary Storage Provisions), for disposal at a facility permitted or authorized by the commission to receive boat sewage.</content><note type="source"><p>Source Note: The provisions of this §321.4 adopted to be effective November 11, 2010, 35 TexReg 9910.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scA/s321.5"><num value="321.5">§321.5</num><heading>Design Specifications and Operation Requirements for Boat Pump-Out Stations</heading><content>(a) Boat pump-out stations shall be designed:(1) to provide a spill-proof connection with shipboard holding tanks;(2) with suction controls or vacuum breaker to limit suction to such levels as will avoid collapse of rigid holding tanks;(3) to provide fresh water facilities for tank flushing;(4) with a check valve and positive cut-off or other device to preclude spillage when breaking connection with a vessel being serviced;(5) to provide adequate interim storage, if required, prior to transfer to an approved sewage system for disposal; and(6) to ensure that any connection to a drinking water system is provided with vacuum breakers or other device designed to insure against backflow or siphonage of sewage or contaminated water into the drinking water system.(b) Mobile or floating boat pump-out stations shall be provided with adequate and spill-proof facilities for transfer to shore-based sewage systems or intermediate transfer facilities.(c) Sewage from a boat pump-out station may be disposed of only by the following methods:(1) after obtaining permission from the owner or operator of the sewage system, discharge into a sewage system operated under authority of a valid permit issued by the commission;(2) discharge into an adequately-sized on-site sewage facility permitted to receive boat sewage in accordance with Texas Health and Safety Code, Chapter 366 and Chapter 285 of this title (relating to On-Site Sewage Facilities); or(3) pick up and discharge by a transporter registered under Chapter 312, Subchapter G of this title (relating to Transporters and Temporary Storage Provisions), for disposal at a facility permitted or authorized by the commission to receive boat sewage.</content><note type="source"><p>Source Note: The provisions of this §321.5 adopted to be effective November 11, 2010, 35 TexReg 9910.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scA/s321.6"><num value="321.6">§321.6</num><heading>Applicability of Certifications</heading><content>(a) The executive director is authorized to certify marine sanitation devices and boat pump-out stations as meeting the requirements of this subchapter.(b) The owner of any boat with a permanently installed marine sanitation device located on surface water in the state must obtain and maintain certification of facilities for that boat in accordance with the provisions of this subchapter, except as described in subsection (d) of this section.(c) The owner of a boat pump-out station operated on or adjacent to surface water in the state must obtain and maintain certification of those facilities in accordance with the provisions of this subchapter.(d) The certification requirement for marine sanitation devices is not required for:(1) those boats that are registered in another state or country, which will be located on surface water in the state for less than 30 consecutive days during a 12-month period; provided they have a marine sanitation device meeting the requirements of this subchapter;(2) any marine sanitation device owned by a federal, state, or local governmental agency; or(3) those boats which are certified with an authorized local government, as described in §321.8(d) of this title (relating to Certification Fees).</content><note type="source"><p>Source Note: The provisions of this §321.6 adopted to be effective November 11, 2010, 35 TexReg 9910.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scA/s321.7"><num value="321.7">§321.7</num><heading>Obtaining Certifications</heading><content>(a) Applications for certifications shall be made on a standard form provided by the executive director. The application must be submitted to the executive director with the appropriate fee, as described in §321.8 of this title (relating to Certification Fees).(b) Initial certifications. Certification application forms must be submitted to the executive director for:(1) marine sanitation devices within 45 days of obtaining a boat number or of determining that a boat number is not required to be obtained under the Texas Water Safety Act, Texas Parks and Wildlife Code, Title 4, Chapter 31; and(2) a boat pump-out station prior to its operation.(c) Renewal applications. Certification renewal application forms must be submitted no later than November 30th of each odd-numbered year to obtain valid certifications for the next biennium.(d) Electronic application for certification.(1) When the executive director announces on the commission's public Web site that electronic application forms are available, applications for certifications required by this section shall be submitted electronically using the electronic forms provided by the executive director.(2) Until such time when the electronic application forms become available, payments associated with the certification fees shall be made electronically on the commission's public Web site through the electronic payment system approved by the executive director.(3) Persons unable to comply with paragraphs (1) or (2) of this subsection may request from the executive director a waiver from the requirement to file or pay electronically. In evaluating a request for a waiver, the executive director may require the applicant to provide documentation to support a claim of hardship.(e) Certification decals for this purpose will be designed and issued by the executive director. The certification decal shall clearly indicate date of expiration.(f) Any certification of marine sanitation devices and boat pump-out stations or renewals thereof issued on or after December 31, 2009, will expire December 31 of each odd-numbered year thereafter.(g) A certification decal issued under this subchapter remains valid for the life of the decal whether the boat is traded or sold.(h) A certification issued under this subchapter is subject to cancellation by the executive director prior to the date of expiration if the applicant misrepresents any material fact in the application or provides information for certification which is false or fraudulent.</content><note type="source"><p>Source Note: The provisions of this §321.7 adopted to be effective November 11, 2010, 35 TexReg 9910.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scA/s321.8"><num value="321.8">§321.8</num><heading>Certification Fees</heading><content>(a) The commission shall charge a fee of $15 for the initial certification and each renewal certification of marine sanitation devices.(b) The commission shall charge a fee of $35 for the initial certification and $25 for the renewal certification of a boat pump-out station. Inspections of boat pump-out stations may be required prior to certification.(c) If a certification decal becomes illegible or is destroyed, a replacement decal can be obtained from the executive director for a fee of $2.00.(d) The commission may delegate the administration and performance of the certification function to another governmental entity in the state. When such delegation occurs, the governmental entity shall have the authority to administer and perform the certification functions contained in this subchapter within its jurisdictional boundaries. Compliance with the certification requirements of the delegated governmental entity is deemed to be in compliance with applicable provisions of this subchapter if such requirements are as restrictive in prohibiting the discharge of sewage from boats as the provisions in this subchapter. On furnishing proof of certification by a delegated governmental entity, a copy of the certification requirements that governs the discharge of sewage from boats inside the jurisdiction of the governmental entity, and a $2.00 fee payable to the commission for issuance of decals, the boat owner will obtain a certification decal from the executive director in order to locate the boat on surface water in the state outside the jurisdiction of the governmental entity.</content><note type="source"><p>Source Note: The provisions of this §321.8 adopted to be effective November 11, 2010, 35 TexReg 9910.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scA/s321.9"><num value="321.9">§321.9</num><heading>Evidence of Certifications</heading><content>(a) Evidence of the certification, which must clearly indicate the date of expiration, shall be displayed on a boat as follows:(1) On a boat registered by the Texas Parks and Wildlife Department under the Water Safety Act, the certification decal must be clearly visible and be placed within three inches of the registration validation decal; or(2) On boats unregistered by the Texas Parks and Wildlife Department, the certification decal must be clearly visible on the exterior of the boat.(b) A boat pump-out station must have the certification decal prominently displayed, which must clearly indicate the date of expiration.</content><note type="source"><p>Source Note: The provisions of this §321.9 adopted to be effective November 11, 2010, 35 TexReg 9910.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scA/s321.10"><num value="321.10">§321.10</num><heading>Delegation to Local Governmental Entities</heading><content>(a) The executive director may delegate the administration and performance of the functions required by this subchapter to any local governmental entity wishing to perform the certification functions. The commissioners' court of a county so delegated may designate any agency of the county to perform such certification.(b) Any local governmental entity seeking to obtain delegation to administer and perform the certification functions pursuant to this subchapter shall submit a request to the executive director. The request shall be submitted on a form approved by the executive director.(c) Upon approval of a request to obtain delegation under this section, the executive director shall notify the local governmental entity in writing to provide for the terms and conditions of program assumption, including the executive director's oversight.(d) Any local governmental entity which has been delegated authority pursuant to Texas Water Code, §26.044, is hereby authorized to inspect boat pump-out stations in its designated area.(e) The executive director reserves the right to modify or rescind any powers and functions delegated to any local governmental entity and shall notify immediately the local governmental entity when it modifies or rescinds any such delegation.</content><note type="source"><p>Source Note: The provisions of this §321.10 adopted to be effective November 11, 2010, 35 TexReg 9910.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scA/s321.11"><num value="321.11">§321.11</num><heading>Criminal Penalties</heading><content>Any person who violates or fails to comply with the provisions of this subchapter concerning the disposal of sewage from boats is subject to criminal penalties pursuant to the Texas Parks and Wildlife Code, §31.129.</content><note type="source"><p>Source Note: The provisions of this §321.11 adopted to be effective November 11, 2010, 35 TexReg 9910.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c321/scB"><num value="B">SUBCHAPTER B</num><heading>CONCENTRATED ANIMAL FEEDING OPERATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.31"><num value="321.31">§321.31</num><heading>Manure, Litter, and Wastewater Discharge and Air Emission Limitations</heading><content>(a) There shall be no discharge or disposal of manure, litter, or wastewater from an animal feeding operation (AFO) into or adjacent to waters in the state, except in accordance with an individual water quality permit issued by the commission, or a concentrated animal feeding operation (CAFO) general permit or other authorization issued or adopted by the commission. Manure, litter, and wastewater generated by an AFO under this subchapter shall be retained and utilized in an appropriate and beneficial manner as provided by commission rules, orders, authorizations, CAFO general permits, or individual water quality permits.(b) AFOs shall be operated in such a manner as to prevent the creation of a nuisance or a condition of air pollution as mandated by Texas Health and Safety Code, Chapter 341 and Chapter 382.</content><note type="source"><p>Source Note: The provisions of this §321.31 adopted to be effective April 1, 1987, 12 TexReg 904; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 27, 1999, 24 TexReg 5721; amended to be effective July 15, 2004, 29 TexReg 6652.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.32"><num value="321.32">§321.32</num><heading>Definitions</heading><content>All definitions in Texas Water Code (TWC), Chapter 26 and Chapter 3 and Chapter 305 of this title (relating to Definitions and Consolidated Permits) shall apply to this subchapter and are incorporated by reference. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Agronomic rates--The land application of animal manure, sludge, or wastewater at rates of application in accordance with a plan for nutrient management which will enhance soil productivity and provide the crop or forage growth with needed nutrients for optimum health and growth based upon a realistic yield goal.(2) Animal feeding operation (AFO)--A lot or facility (other than an aquatic animal production facility) where animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period, and the animal confinement areas do not sustain crops, vegetation, forage growth, or post-harvest residues in the normal growing season over any portion of the lot or facility. Two or more AFOs under common ownership are a single AFO if they adjoin each other, or if they use a common area or system for the beneficial use of manure, sludge, or wastewater. A land management unit is not part of an AFO.(3) Annual(ly)--Once per calendar year with required events not more than 18 months apart, unless approved in writing by the executive director on a case-by-case basis.(4) Aquifer--A saturated permeable geologic unit that can transmit, store, and yield to a well, the quality and quantities of groundwater sufficient to provide for a beneficial use. An aquifer can be composed of unconsolidated sands and gravels, permeable sedimentary rocks such as sandstones and limestones, and/or heavily fractured volcanic and crystalline rocks. Groundwater within an aquifer can be confined, unconfined, or perched.(5) Area land use map--A map that identifies property lines, permanent odor sources, and distances and direction to any occupied residence or business structure, school (including associated recreational areas), permanent structure containing a place of worship, or public park within a one-mile radius of the permanent odor sources at the animal feeding operation. The map shall include the north arrow, scale of map, buffer distances, and date that the map was generated and the date that the distances were verified.(6) Beneficial use--Application of manure, sludge, or wastewater to land in a manner that does not exceed the agronomic need or rate for a harvested or cover crop. Application of manure, sludge, or wastewater on the land at a rate below or equal to the optimal agronomic rate is considered a beneficial use.(7) Best management practices (BMPs)--The schedule of activities, prohibitions of practices, maintenance procedures, and other management and conservation practices to prevent or reduce the pollution of water in the state. BMPs also include treatment requirements, operating procedures, and practices to control site runoff, spillage or leaks, sludge, land application, or drainage from raw material storage.(8) Bypass--The intentional diversion of waste streams from any portion of a treatment facility.(9) Catastrophic conditions--Conditions that cause structural or mechanical damage to the animal feeding operation from natural events including high winds, tornadoes, hurricanes, earthquakes, or other natural disasters, other than rainfall events.(10) Certified nutrient management specialist--An organization in Texas or an individual who is currently certified as a nutrient management specialist through a United States Department of Agriculture-Natural Resources Conservation Service, Texas Certified Crop Advisor's Board or Texas AgriLife Extension Service recognized certification program.(11) Chronic or catastrophic rainfall event--A series of rainfall events that do not provide opportunity for dewatering a retention control structure and that are equivalent to or greater than the design rainfall event or any single rainfall event that is equivalent to or greater than the design rainfall event.(12) Certified water quality management plan--A site-specific plan for agricultural or silvicultural lands that includes appropriate land treatment practices, production practices, management measures, technologies, or combinations thereof that when implemented, will achieve a level of pollution prevention or abatement determined by the Texas State Soil and Water Conservation Board, in consultation with the local Soil and Water Conservation District, to be consistent with state water quality standards.(13) Comprehensive Nutrient Management Plan (CNMP)--A resource management plan containing a grouping of conservation practices and management activities that, when implemented in a conservation system, will help ensure that both agricultural production goals are achieved, and natural resource concerns dealing with nutrient and organic by-products and their adverse impacts on water quality are minimized.(14) Concentrated animal feeding operation (CAFO)--Any animal feeding operation (AFO) defined as follows:(A) Large CAFO--Any AFO that stables or confines and feeds or maintains for a total of 45 days or more in any 12-month period equal to or more than the numbers of animals specified in any of the following categories:(i) 1,000 cattle other than mature dairy cattle or veal calves. Cattle includes, but is not limited to, heifers, steers, bulls, and cow/calf pairs;(ii) 1,000 veal calves;(iii) 700 mature dairy cattle (whether milkers or dry cows);(iv) 2,500 swine, each weighing 55 pounds or more; 10,000 swine, each weighing less than 55 pounds;(v) 500 horses;(vi) 10,000 sheep or lambs;(vii) 55,000 turkeys;(viii) 125,000 chickens (other than laying hens, if the operation does not use a liquid manure handling system);(ix) 30,000 laying hens or broilers (if the operation uses a liquid manure handling system), or 82,000 laying hens (if the operation does not use a liquid manure handling system); or(x) 5,000 ducks (if the operation uses a liquid manure handling system), or 30,000 ducks (if the operation does not use a liquid manure handling system).(B) Medium CAFO--Any AFO that discharges pollutants into water in the state either through a man-made ditch, flushing system, or other similar man-made device, or directly into water in the state with the following number of animals:(i) 300 to 999 cattle other than mature dairy cattle or veal calves. Cattle includes, but is not limited to, heifers, steers, bulls, and cow/calf pairs;(ii) 200 to 699 mature dairy cattle (whether milking or dry cows);(iii) 300 to 999 veal calves;(iv) 750 to 2,499 swine each weighing 55 pounds or more, or 3,000 to 9,999 swine each weighing less than 55 pounds;(v) 150 to 499 horses;(vi) 3,000 to 9,999 sheep or lambs;(vii) 16,500 to 54,999 turkeys;(viii) 37,500 to 124,999 chickens (other than laying hens if the operation does not use a liquid manure handling system);(ix) 9,000 to 29,999 laying hens or broilers (if the operation uses a liquid manure handling system), or 25,000 to 81,999 laying hens (if the operation does not use a liquid manure handling system); or(x) 1,500 to 4,999 ducks (if the operation uses a liquid manure handling system), or 10,000 to 29,999 ducks (if the operation does not use a liquid manure handling system).(C) Small CAFO--Any AFO that is designated by the executive director as a CAFO because it is a significant contributor of pollutants into or adjacent to water in the state and is not a large or medium CAFO.(D) State-only CAFO--An AFO that falls within the range of animals in subparagraph (B) of this paragraph and that is located in the dairy outreach program areas or an AFO designated by the executive director as a CAFO because it is a significant contributor of pollutants into or adjacent to water in the state. A state-only CAFO is authorized under state law.(15) Control facility--Any system used for the collection and retention of manure, sludge, or wastewater at the permitted facility until their ultimate use or disposal. This includes all collection ditches, conduits, and swales for the collection of manure, sludge, or wastewater, and all retention control structures.(16) Cooling Pond--A shallow man-made structure filled with water for the specific purpose to keep animals cool and promote animal comfort.(17) Crop removal--The amount of nutrients contained in and removed by harvest of the adopted crop.(18) Crop requirement--The amount of nutrients that must be present in the soil in order to ensure that the crop nutrient needs are met, while accounting for nutrients that may become unavailable to the crop due to adsorption to soil particles or other natural causes.(19) Dairy outreach program areas--The area including all of the following counties: Bosque, Comanche, Erath, Hamilton, Hopkins, Johnson, Rains, and Wood.(20) Design rainfall event--A design parameter corresponding to precipitation frequency values for a given rainfall duration and return period based on United States Department of Commerce, Weather Bureau, Technical Paper 40 or 49, May 1961.(21) Dry litter poultry operation--A poultry animal feeding operation that does not use a liquid manure handling system.(22) Edwards Aquifer--As defined in §213.3 of this title (relating to Definitions).(23) Edwards Aquifer recharge zone--As defined in §213.3 of this title (relating to Definitions).(24) Groundwater--Subsurface water that occurs below the water table in soils and geologic formations that are saturated other than underflow of a stream or an underground stream.(25) Historical waste application field--An area of land located in a major sole-source impairment zone that at any time since January 1, 1995, has been owned or controlled by an operator of a concentrated animal feeding operation (CAFO), and on which agricultural manure or wastewater from a CAFO has been applied.(26) Hydrologic connection--The connection and exchange between surface water and groundwater.(27) Lagoon--A retention control structure used for the biological treatment of liquid organic manure. Lagoons can be aerobic, anaerobic, or facultative depending on their design and can be used in a series to produce a higher quality effluent. Treatment volume must be included in the lagoon design.(28) Land application--The act of applying manure, sludge, or wastewater associated with the animal feeding operation including distribution to, or incorporation into, the soil mantle primarily for beneficial use purposes.(29) Land management unit (LMU)--An area of land owned, operated, controlled, rented, or leased by an animal feeding operation (AFO) owner or operator where manure, sludge, or wastewater from the AFO is or may be applied. This includes land associated with a single center pivot system or a tract of land where similar soil characteristics exist and similar management practices are being used. LMUs include historical waste application fields. The term "land management unit" does not apply to any lands not owned, operated, controlled, rented, or leased by the AFO operator for the purpose of off-site land application of manure, where the manure is given or sold to others for land application.(30) Letter of consent--A document signed by the owner or the authorized legal representative of the owner(s) of an occupied residence or business structure, school (including associated recreational areas), permanent structure containing a place of worship, or public park, or a document signed by the governmental entity or the authorized legal representative of the entity responsible for the operation of a school or public park. The document specifically consents to location and operation of permanent odor sources of an animal feeding operation within the minimum buffer distance required under §321.43 of this title (relating to Air Standard Permit for Animal Feeding Operations (AFO)).(31) Liner--Any barrier in the form of a layer; membrane; or blanket; naturally existing, constructed, or installed, to prevent a significant hydrologic connection between wastewater contained in retention control structures and water in the state.(32) Liquid manure handling system--A system in which freshwater or wastewater is used for transporting and land applying manure.(33) Major sole-source impairment zone--A watershed that contains a reservoir:(A) that is used by a municipality as a sole source of drinking water supply for a population, inside and outside of its municipal boundaries, of more than 140,000; and(B) at least half of the water flowing into is from a source that, on September 1, 2001, is on the list of impaired state waters adopted by the commission as required by 33 United States Code, §1313(d), as amended:(i) at least in part because of concerns regarding pathogens and phosphorus; and(ii) where the commission has developed and adopted a total maximum daily load.(34) Manure--Feces and/or urine excreted by livestock and poultry. Manure includes litter, bedding, compost, feed, and other raw materials commingled with feces and/or urine.(35) New source--As defined in §305.2 of this title (relating to Definitions). The criteria for new source determination are located in §305.534(b) of this title (relating to New Sources and New Dischargers).(36) Nuisance--Any discharge of air contaminant(s), including but not limited to odors of sufficient concentration and duration that are or may tend to be injurious to or that adversely affects human health or welfare, animal life, vegetation, or property, or that interferes with the normal use and enjoyment of animal life, vegetation, or property.(37) Nutrient management plan (NMP)--A plan based on the Natural Resources Conservation Service Practice Standard Code 590, for Texas, to address the amount, rate, source, placement, method of application, and timing of the application of plant nutrients, and soil amendments.(38) Nutrient utilization plan (NUP)--A nutrient management plan to evaluate and address site-specific characteristics of a land management unit to ensure that the beneficial use of manure, sludge, or wastewater is conducted in a manner to prevent adverse impacts on water quality.(39) One-hundred-year flood plain--Any land area that is subject to a 1.0% or greater chance of flooding in any given year from any source.(40) Open lot--Pens or similar confinement areas with dirt, concrete, or other paved or hard surfaces wherein livestock or poultry are substantially or entirely exposed to the outside environment except for small portions of the total confinement area affording protection by windbreaks or small shed-type shade areas and that do not sustain crops, vegetation, forage growth, or postharvest residues in the normal growing season. For the purposes of this subchapter, the term "open lot" is synonymous with the terms "dirt lot" or "dry lot," for livestock or poultry, as these terms are commonly used in the agricultural industry.(41) Operational--The facility is constructed such that animals may be stabled, confined, fed, and maintained in accordance with the permit or authorization. The facility does not have to be operating at the maximum number of animals allowed in the permit or authorization.(42) Operator--The owner or person responsible for the overall operation of a facility or part of a facility, subject to the provisions of this subchapter.(43) Permanent odor sources--Those odor sources that may emit odors 24 hours per day. For the purposes of this subchapter, permanent odor sources include, but are not limited to, pens, confinement buildings, lagoons, retention control structures, manure stockpile areas, and solid separators. For the purposes of this subchapter, permanent odor sources shall not include any feed handling facilities, land application equipment, or land management units.(44) Permittee--Any person issued an individual permit or order or authorized under a general permit.(45) Pesticide--A substance or mixture of substances intended to prevent, destroy, repel, or mitigate any pest, or any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant. Pesticide includes insecticides, nematicides, rodenticides, fungicides, and herbicides.(46) Playa--A flat-floored, clayey bottom of an undrained basin that is located in an arid or semi-arid part of the state, is naturally dry most of the year, and collects runoff from rain, but is subject to rapid evaporation.(47) Process-generated wastewater--Any water directly or indirectly used in the operation of an animal feeding operation (such as spillage or overflow from animal or poultry watering systems that comes in contact with manure washing, cleaning, or flushing pens, barns, manure pits; direct contact swimming, washing, or spray cooling of animals; and dust control) including water used in or resulting from the production of animals or poultry or direct products (e.g., milk, meat, or eggs).(48) Production area--That part of an animal feeding operation that includes, but is not limited to, the animal confinement area, the manure storage area, the raw materials storage area, and the control facilities.(49) Protection zone--The area within the watershed of a sole-source surface drinking water supply that is:(A) within two miles of the normal pool elevation, as shown on a United States Geological Survey (USGS) 7 1/2-minute quadrangle topographic map, of a sole-source drinking water supply reservoir;(B) within two miles of that part of a perennial stream that is:(i) a tributary of a sole-source drinking water supply; and(ii) within three linear miles upstream of the normal pool elevation, as shown on a USGS 7 1/2-minute quadrangle topographic map, of a sole-source drinking water supply reservoir; or(C) within two miles of a sole-source surface drinking water supply river, extending three linear miles upstream from the sole-source water supply intake point.(50) Recharge feature--Those natural or artificial features either on or beneath the ground surface at the site under evaluation that provide or create a significant hydrologic connection between the ground surface and the underlying groundwater within an aquifer. Significant artificial features include, but are not limited to, wells and excavation or material pits. Significant natural hydrologic connections include, but are not limited to: faults, fractures, sinkholes, or other macro pores that allow direct surface infiltration; a permeable or shallow soil material that overlies an aquifer; exposed geologic formations that are identified as an aquifer; or a water course bisecting an aquifer.(51) Retention control structure (RCS)--Any basin, pond, pit, tank, conveyance, or lagoon used to hold, store, or treat manure, wastewater, and sludge. The term RCS does not include conveyance systems such as irrigation piping or ditches that are designed and maintained to convey but not store any manure, or wastewater, nor does it include cooling ponds located in the production area.(52) Significant expansion of concentrated animal feeding operation (CAFO)--Any change to a CAFO that increases the manure production at the CAFO by more than 50%, above the maximum operating capacity stated in the initial authorization for the facility under TXG920000.(53) Sludge--Solid, semi-solid, or slurry manure generated during the treatment of or storage of any manure or wastewater. The term includes material resulting from treatment, coagulation, or sedimentation of manure in a retention control structure. Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation) rules covering sludge do not apply to this subchapter.(54) Soil Plant Air and Water (SPAW) Field Pond Hydrology--SPAW is a Natural Resources Conservation Service (NRCS) water budgeting tool for farm fields, ponds, and inundated wetlands. The SPAW model may be used to perform daily hydrologic water budgeting using the NRCS Runoff Curve Number method.(55) Sole-source surface drinking water supply--A body of surface water that is identified as a public water supply in §307.10 of this title (relating to Appendices A - E) and is the sole source of supply of a public water supply system, exclusive of emergency water connections.(56) Substantial change--The following changes to the terms of the Nutrient Management Plan are considered substantial; other changes are considered non-substantial:(A) changing animal type or authorized head count;(B) adding Land Management Units or increasing application acreage; and(C) using a crop or yield goal to determine maximum application rates for manure, sludge or wastewater that is not authorized by the permit or authorization.(57) Technical service provider--An individual, entity, or public agency certified and placed on an approved list by the Natural Resources Conservation Service (NRCS) to provide technical services to program participants or the NRCS.(58) Twenty-five-year, ten-day rainfall event--The maximum rainfall event with a probable recurrence interval of once in 25 years, with a duration of ten days, as defined by the National Weather Service in Technical Paper Number 49 United States Weather Bureau and United States Department of Agriculture, Two-to-Ten Day Precipitation for Return Periods of 2 to 100 Years in the Contiguous United States (1964); or equivalent regional or state rainfall information.(59) Twenty-five-year, 24-hour rainfall event--The maximum rainfall event with a probable recurrence interval of once in 25 years, with a duration of 24 hours, as defined by the National Weather Service in Technical Paper Number 40, "Rainfall Frequency Atlas of the United States," May 1961; or equivalent regional or state rainfall information.(60) United States Department of Agriculture (USDA)--Natural Resources Conservation Service (NRCS)--An agency of the United States Department of Agriculture that provides assistance to agricultural producers for planning and installation of conservation practices through conservation and technical programs.(61) Upset--An exceptional incident where there is unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.(62) Wastewater--Any water, including process-generated wastewater and precipitation, which comes into contact with any manure, sludge, bedding, or any raw material or intermediate or final material or product used in or resulting from the production of livestock or poultry or direct products (e.g., milk, meat, or eggs).(63) Water in the state--Groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of Mexico, inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.(64) Well--Any artificial excavation into or below the surface of the earth whether in use, unused, abandoned, capped, or plugged that may be further described as one or more of the following:(A) an excavation designed to explore for, produce, capture, recharge, or recover water, any mineral, compound, gas, or oil from beneath the land surface;(B) an excavation designed for the purpose of monitoring any of the physical or chemical properties of water, minerals, geology, or geothermal properties that exist or may exist below the land surface;(C) an excavation designed to inject or place any liquid, solid, gas, vapor, or any combination of liquid, solid, gas, or vapor into any soil or geologic formation below the land surface; or(D) an excavation designed to lower a water or liquid surface below the land surface either temporarily or permanently for any reason.</content><note type="source"><p>Source Note: The provisions of this §321.32 adopted to be effective April 1, 1987, 12 TexReg 904; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 27, 1999, 24 TexReg 5721; amended to be effective March 6, 2002, 27 TexReg 1511; amended to be effective September 1, 2003, 28 TexReg 6302; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective July 31, 2014, 39 TexReg 5786.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.33"><num value="321.33">§321.33</num><heading>Applicability and Required Authorizations</heading><content>(a) Permit required. All concentrated animal feeding operations (CAFOs) are point sources that require owners and operators to seek and obtain authorization under a water quality general permit or individual permit, except as provided in subsection (f) of this section. CAFO owners and operators have a duty to seek coverage as described in this section.(b) Individual permit required. A discharge from the following CAFOs may be authorized only under an individual water quality permit in accordance with §321.34 of this title (relating to Permit Applications). Except as provided by subsection (f) of this section, any operator who is required to obtain an individual water quality permit under this subsection may not commence physical construction and/or operation of any new control facilities until an individual water quality permit is issued for that CAFO, or unless otherwise authorized by the commission in accordance with Texas Water Code (TWC), §26.027(c).(1) Any CAFO located within one mile of coastal natural resource areas as defined by Texas Natural Resources Code, §33.203, unless the CAFO was authorized by the commission prior to January 10, 1997.(2) Any dairy CAFO located in a major sole-source impairment zone.(3) Any CAFO where, on the date the executive director determines that the application is administratively complete, any part of the production area of the CAFO is located or adopted to be located within the protection zone of a sole-source surface drinking water supply, in accordance with TWC, §26.0286. This paragraph does not apply to a poultry operation that does not use a liquid manure handling system, which is commonly referred to as a dry litter poultry operation.(4) Any CAFO where any part of the production area or land management units is located in a watershed of a segment listed on the current United States Environmental Protection Agency-approved §303(d) list of impaired water bodies, as required by 33 United States Code (USC), §1313(d), and where a total maximum daily load implementation plan has been adopted by the commission that established additional water quality protection measures for CAFOs that are not required by the CAFO general permit.(5) Any animal feeding operation (AFO) that the executive director designates and requires to be authorized by an individual water quality permit to achieve the policies and purposes enumerated in TWC, §5.120 and §26.003; Texas Health and Safety Code, Chapters 341, 361, or 382; or §321.31 of this title (relating to Manure, Litter, and Wastewater Discharge and Air Emission Limitations). Cases where the executive director may require an AFO to obtain an individual water quality permit include, but are not limited to, the following:(A) the operation is located near surface or groundwater resources;(B) compliance with standards in addition to those listed in this subchapter is necessary in order to protect water in the state from pollution;(C) the operation is not or has not been in substantial compliance with the standards of this subchapter;(D) the operation is under a formal commission enforcement order or has been referred to the commission for enforcement action by the Texas State Soil and Water Conservation Board;(E) the operation does not qualify for a CAFO general permit under §205.4 of this title (relating to Authorizations and Notices of Intent);(F) the production area or land management unit of any new CAFO is located in a watershed of a segment listed on the current §303(d) list of impaired water bodies for bacteria, nutrients, and/or pathogens as required by 33 USC, §1313(d); or(G) the executive director determines that an individual water quality permit is appropriate considering other pertinent factors.(c) Individual permit or general permit required. A discharge from any other CAFO shall be authorized either by an individual water quality permit or an applicable CAFO general permit. Except as provided by subsection (f) of this section, any operator required to obtain an individual water quality permit or authorization under a CAFO general permit according to this subsection may not begin physical construction or operation of any new control facility until the CAFO operator receives an individual water quality permit or authorization under a CAFO general permit, unless otherwise authorized by the commission under TWC, §26.027(c).(d) New or expanding AFO. No person may commence construction or operation of a new CAFO or alter any existing AFO such that it becomes defined as a CAFO without prior authorization through an individual water quality permit or a CAFO general permit, unless otherwise authorized by the commission under TWC, §26.027(c). This subsection does not apply to dry litter poultry operations specified in subsection (f) of this section.(e) Newly defined CAFO. An existing AFO that becomes classified as a CAFO may not begin physical construction or operation of any new control facility until the CAFO operator receives authorization through an individual water quality permit or a CAFO general permit, unless otherwise authorized by the commission under TWC, §26.027(c).(f) Dry litter poultry operations. A dry litter poultry CAFO shall only be required to obtain authorization by an individual water quality permit or a CAFO general permit in accordance with subsection (a), (b), or (c) of this section if it proposes to discharge or the executive director determines that a permit is necessary due to an unauthorized discharge; the operation's failure to comply with, or timely obtain, a certified water quality management plan approved by the Texas State Soil and Water Conservation Board; or other pertinent factors. Any dry litter poultry CAFO is authorized to be constructed and operated if the operation has a certified water quality management plan approved by the Texas State Soil and Water Conservation Board or is otherwise in compliance with the plan implementation schedule set forth in the notes following codified TWC, §26.302.(g) Expansion or modification requirements. A CAFO operator authorized under an individual water quality permit shall comply with §305.62 of this title (relating to Amendments). Before the permittee begins physical construction or operation of any new control facility, the operator must obtain commission authorization. Changes for which an individual permit amendment is required include, but are not limited to:(1) increasing the maximum number of animals authorized for confinement;(2) increasing the wastewater storage volume;(3) adding land management units or increasing application acreage; and(4) using a crop or yield goal to determine maximum application rates for manure, sludge, or wastewater that is not authorized by the permit or authorization.(h) AFOs that are not defined or designated as CAFOs. Discharges of manure, sludge, or wastewater from an AFO that is not a CAFO as defined in this subchapter are authorized under this subchapter. Requirements applicable to these AFOs are described in §321.47 of this title (relating to Requirements for Animal Feeding Operations (AFOs) Not Defined or Designated As Concentrated Animal Feeding Operations (CAFOs)).(i) Edwards Aquifer. New CAFOs are prohibited within the Edwards Aquifer recharge zone.(j) Permit term. Individual and general permits issued under this subchapter shall be effective for a term not to exceed five years from the date the permit is issued.(k) Dual authorization. No person may concurrently hold both an individual water quality permit and authorization under a CAFO general permit for the same CAFO.(l) Additional requirements. Authorization under this subchapter, a general permit, or an individual permit does not release the operator from any responsibilities or requirements under other federal, state, or local statutes or regulations.(m) State-only authorizations. Any AFO that is a state-only CAFO shall be authorized in accordance with subsection (a), (b), or (c) of this section.</content><note type="source"><p>Source Note: The provisions of this §321.33 adopted to be effective April 1, 1987, 12 TexReg 904; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 27, 1999, 24 TexReg 5721; amended to be effective March 6, 2002, 27 TexReg 1511; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective May 3, 2006, 31 TexReg 3585; amended to be effective October 12, 2006, 31 TexReg 8382; amended to be effective July 31, 2014, 39 TexReg 5786.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.34"><num value="321.34">§321.34</num><heading>Permit Applications</heading><content>(a) Any operator of an animal feeding operation (AFO) who is required to operate under an individual water quality permit by the Texas Water Code, the executive director, or this subchapter shall submit an application in accordance with Chapter 281 of this title (relating to Applications Processing) and Chapter 305 of this title (relating to Consolidated Permits). The applicant shall provide such additional information in support of the application as may be necessary for the executive director to carry out an adequate administrative and technical review of the application.(b) Applicants shall comply with §§305.41, 305.43, 305.44, and 305.47 of this title (relating to Applicability; Who Applies; Signatories to Applications; and Retention of Application Data) and §1.5(d) of this title (relating to Records of the Agency). Except as provided in subsection (c) of this section, §§305.61 - 305.68 of this title (relating to Applicability; Amendments; Renewal; Transfer of Permits; Permit Denial, Suspension, and Revocation; Revocation and Suspension upon Request or Consent; and Action and Notice on Petition for Revocation or Suspension) apply to applications for water quality permits. Notice, public comment, and contested case hearings on applications shall be conducted in accordance with commission rules governing applicable individual water quality permit applications.(1) Any permittee with an issued and effective individual water quality permit shall submit an application for renewal of the permit in accordance with the requirements of Chapter 281 and Chapter 305 of this title, or shall submit a notice of intent (NOI) for a concentrated animal feeding operation (CAFO) general permit in accordance with the requirements of the CAFO general permit.(2) If an individual water quality permit application is submitted before the expiration date of the existing authorization, the terms and conditions of the existing permit continues in effect until final commission action on the permit application. An authorization under the general permit will be renewed in accordance with the requirements in the general permit and this subchapter.(3) A CAFO owner or operator who submits an NOI for a CAFO general permit authorization or is authorized under the CAFO general permit shall comply with the public participation process detailed in the CAFO general permit.(4) The executive director may renew an application for an individual water quality permit for a state-only CAFO without a contested case hearing if the application qualifies for the exception in Texas Water Code, §26.028(d) or if the operation is not a major source as defined under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification). Renewal under this paragraph is allowed only if there has been no related formal enforcement action against the facility during the last 36 months of the term of the individual water quality permit in which the commission determined that:(A) a violation occurred that contributed to pollution of surface or groundwater, or an unauthorized discharge occurred, or a violation of §101.4 of this title (relating to Nuisance) occurred, or any violation of an applicable state or federal air quality control requirement occurred;(B) such discharge or air emission was within the reasonable control of the permittee; and(C) such discharge or air emission could have been reasonably foreseen by the permittee.(5) For any application for renewal within an area specified in §321.32(19) of this title (relating to Definitions), the executive director will conduct an annual compliance inspection within 12 months of the date the executive director declares the application administratively complete.(c) An operator shall submit a complete application within 90 days of notification from the executive director that an individual water quality permit is required under §321.33(b)(5) of this title (relating to Applicability and Required Authorizations).(d) Permittees may amend their individual water quality permits in accordance with §305.62 of this title and §321.33(g) of this title and must include all requested changes to the individual water quality permit application. The executive director will process a permit amendment application in accordance with all applicable requirements in Chapter 281 and Chapter 305 of this title.(e) Any operator of an AFO who files an application for an individual water quality permit under this subchapter, or an amendment in accordance with §321.33(h) of this title, shall submit a complete application to the executive director, according to the provisions of this section including any other information as the executive director or the commission may require.(f) Applications for an individual water quality permit under this section shall be made on forms prescribed by the executive director. The applicant shall submit an original completed application with attachments to the executive director at the commission headquarters in Austin, and one additional copy of the application with attachments to the appropriate commission regional office. At a minimum, the executive director will require the following information to be submitted, as it is applicable to the facility:(1) information specified in §305.45 of this title (relating to Contents of Application for Permit);(2) information specified in 40 Code of Federal Regulations (CFR) §122.21(i)(1), relating to application for a permit for a CAFO;(3) a recharge feature certification, signed and sealed by a licensed Texas professional engineer, or a licensed Texas professional geoscientist, documenting the absence or presence of any natural or artificial recharge features identified on any tracts of land owned, operated, controlled, rented, or leased by the applicant and to be used as a part of a CAFO or land management unit. The recharge feature certification shall be developed in accordance with this subsection and the executive director's guidance, RG-433 Guidelines for Identifying and Protecting Aquifer Recharge Features. Use of the forms provided in RG-433 is optional.(A) A water quality management plan certified by the Texas State Soil and Water Conservation Board for a dry litter poultry facility that evaluates site-specific recharge characteristics and management practices of the operation will meet the recharge feature certification requirement of this paragraph.(B) If the recharge feature certification identifies the presence of recharge features the applicant shall have protective measures developed, signed, and sealed by a licensed Texas professional engineer, or licensed Texas professional geoscientist, as appropriate and in conformance with the Texas Engineering Practice Act and the Texas Geoscience Practice Act and the licensing and registration boards under these acts. The permittee must implement the protective measures. The protective measures must prevent impacts to the aquifer from any recharge features present. The protective measures must include at least one of the following:(i) measures to protect each located recharge feature, such as impervious cover, berms, buffer zones, or other equivalent protective measures;(ii) a detailed groundwater monitoring plan which requires annual groundwater sampling from representative wells and the groundwater analyzed for chlorides, nitrates, and total dissolved solids; or(iii) provisions for any other similar method or approach demonstrated by the applicant to be protective of any associated recharge feature and approved by the commission.(4) any information required by §321.43 of this title (relating to Air Standard Permit for Animal Feeding Operations (AFOs)) to document compliance with the air standard permit.</content><note type="source"><p>Source Note: The provisions of this §321.34 adopted to be effective July 13, 1995, 20 TexReg 4719; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 27, 1999, 24 TexReg 5721; amended to be effective March 6, 2002, 27 TexReg 1511; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective July 31, 2014, 39 TexReg 5786.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.35"><num value="321.35">§321.35</num><heading>Fees</heading><content>(a) Application fee. Each applicant for an individual water quality permit shall pay an application fee as required by §305.53 of this title (relating to Application Fee).(b) Annual assessment fees. Each permittee shall pay a consolidated annual fee as required by Chapter 21 of this title (relating to Water Quality Fees).</content><note type="source"><p>Source Note: The provisions of this §321.35 adopted to be effective April 1, 1987, 12 TexReg 904; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 27, 1999, 24 TexReg 5721; amended to be effective March 6, 2002, 27 TexReg 1511; amended to be effective September 1, 2003, 28 TexReg 6302; amended to be effective July 15, 2004, 29 TexReg 6652.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.36"><num value="321.36">§321.36</num><heading>Texas Pollutant Discharge Elimination System General Requirements for Concentrated Animal Feeding Operations (CAFOs)</heading><content>(a) Applicability. These requirements apply to a concentrated animal feeding operation (CAFO) subject to the requirements of the Texas Pollutant Discharge Elimination System, unless otherwise noted.(b) Permits. A CAFO shall comply with §305.125 of this title (relating to Standard Permit Conditions) and all applicable permit conditions contained in commission rules. Requirements to provide for and ensure compliance with standards set by the rules of the commission and the laws of Texas shall be determined and included in an individual water quality permit on a case-by-case basis to reflect the best method for attaining such compliance. Each permit shall contain terms and conditions as the commission determines necessary to protect human health and safety, and the environment.(c) Nutrient management plan (NMP).(1) The operator of a large CAFO shall develop and implement an NMP certified by a person or entity identified in §321.32(10) of this title (relating to Definitions) to be in accordance with the Texas Natural Resources Conservation Service NRCS Practice Standard Code 590. The plan shall include site-specific nutrient management practices that ensure appropriate agricultural utilization of nutrients in the manure, sludge, or wastewater. The NMP shall be updated annually. The operator shall determine the amount, in tons/acre or acre-inches/acre, of manure, sludge, and wastewater for each land management unit (LMU) using the following methodology:(A) determine the phosphorus index rating using the Agronomy Technical Note No. 15 Phosphorus Assessment Tool of Texas;(B) determine the maximum annual application rate using Appendix 5 of the NRCS Practice Standard Code 590 for Texas;(C) determine the crop requirement or the crop removal rate, as appropriate, from the S Crops Table as contained in the Texas NRCS 590-Software Tool, site-specific historic CAFO yield data, or other sources as approved by the executive director; and(D) account for:(i) the results of soil tests required by §321.40(m)(1)(B) of this title (relating to Concentrated Animal Feeding Operation (CAFO) Land Application Requirements);(ii) credits for all nitrogen in the soil that will be available for plant use;(iii) the amount of nitrogen and phosphorus in the manure and wastewater to be applied;(iv) consideration of multi-year phosphorus application (for any LMU where nutrients are applied at a rate based on crop phosphorus requirement, the methodology must account for single-year nutrient applications that supply more than the crop's annual phosphorus requirement); and(v) all other additions of plant available nitrogen and phosphorus to the LMU (i.e., from sources other than manure or wastewater or credits for residual nitrogen).(2) Terms of the NMP include the following:(A) animal type and authorized head count;(B) LMU and application acreage for each LMU;(C) crops (including alternative crops) identified in the NMP with their yield goals for each LMU;(D) the maximum application rates for nitrogen and phosphorus for each crop in each LMU;(E) the methodology in paragraph (1) of this subsection (including formulas, sources of data, protocols for making determinations, etc.) and actual data used to calculate application rates; and(F) any other factors necessary to determine the amounts of nitrogen and phosphorus to be applied.(3) Changes to a NMP. Any changes, except changes resulting from annual recalculation, must be submitted to the executive director. The NMP will be reviewed by the executive director to determine if changes require revisions to the terms of the NMP. Revisions to terms of the NMP can be substantial or non-substantial.(4) Substantial and non-substantial changes. Those changes that constitute a substantial change are defined in §321.32(56) of this title. Non-substantial changes include, but are not limited to, changes to the site-specific LMU information in the Phosphorus index Worksheet, changes to the maximum application rate of nitrogen or phosphorus to be land applied or changes in the phosphorus index rating.(5) If changes to the terms of the NMP are determined to be substantial, the changes must be incorporated into the permit in accordance with §321.33(g) of this title (relating to Applicability and Required Authorizations).(6) If changes to the terms of the NMP are determined to be non-substantial, the executive director will notify the permittee and include the revised permit in the permit record.(7) The CAFO operator shall create, maintain for five years, and make available to the executive director, upon request, a copy of the site-specific NMP and records of manure and wastewater application.(d) Compliance with the requirements of this section and applicable requirements of this subchapter constitute compliance with the provisions of 40 Code of Federal Regulations (CFR) §122.42(e)(1)(i) - (ix).(e) Buffers for LMUs. A sinkhole shall be protected with a 100-foot buffer from manure, sludge, and wastewater application. Alternatively, the CAFO may substitute a 35-foot wide vegetative buffer around a sinkhole where alternative conservation practices or field-specific conditions will provide pollutant reductions equivalent to or better than the reductions that would be achieved by the 100-foot buffer.(f) Soil sampling and testing procedures for dairy CAFOs, both state-only and Texas Pollutant Discharge Elimination System, located in a major sole-source impairment zone.(1) Initial sampling. Before commencing land application of manure, sludge, or wastewater on an LMU, the operator shall collect and analyze at least one representative soil sample from each of the LMUs according to the following procedures. The CAFO operator is not required to collect soil samples or report on LMUs where manure, litter, or wastewater has not been applied during the preceding year. The CAFO operator must comply with the initial sampling requirement before resuming land application to such LMUs.(2) Annual sampling. The TCEQ or its designee shall annually collect soil samples, according to the following procedures, for each LMU owned, operated, controlled, rented or leased by the CAFO operator where manure, litter, or wastewater was applied during the preceding year. The results of these analyses shall be used in determining the application rates for manure, sludge and wastewater.(3) Sampling procedures. Soil sampling procedures shall employ sampling procedures using accepted techniques of soil science for obtaining representative samples and analytical results.(A) Samples shall be collected using approved procedures described in this section and the agency's publication, RG-408 entitled "Soil Sampling for Concentrated Animal Feeding Operations."(B) Samples shall be collected by the Texas Commission on Environmental Quality or its designee and analyzed by a soil testing laboratory within the same 45-day time frame each year (from 45 days prior to until 45 days after the date of the previous year's sampling date), except when crop rotations or inclement weather require a change in the sampling time frame.(C) One composite sample shall be obtained for each soil depth zone per uniform soil type (soils with the same characteristics and texture) within each LMU.(D) Composite samples shall be comprised of 10 - 15 randomly sampled cores obtained from each of the following soil depth zones:(i) Zone 1: zero to six inches (for an LMU where the manure is incorporated directly into the soil) or zero to two inches (for an LMU where the manure is not incorporated into the soil). Wastewater is considered to be incorporated. If a zero to two-inch sample is required under this subsection, then an additional sample from the two to six-inch soil depth zone shall be obtained in accordance with the provisions of this section; and(ii) Zone 2: six to 24 inches.(4) Laboratory analysis. Laboratory analysis of the soil samples shall be performed for physical and chemical parameters to include: nitrate as nitrogen in parts per million (ppm), extractable phosphorus (ppm, using Mehlich III with Inductively Coupled Plasma (ICP)), potassium (extractable, ppm); sodium (extractable, ppm); magnesium (extractable, ppm); calcium (extractable, ppm); soluble salts (ppm) or electrical conductivity (deciSiemens/meter (dS/m) or millimhos/cm (mmhos/cm) - determined from extract of 2:1 volume to volume (v/v) water/soil mixture); and soil water pH.(g) Annual report required. An annual report shall be submitted to the executive director's Office of Compliance and Enforcement, Enforcement Division, by March 31 of each year (for the reporting period of January 1 to December 31 of the previous year, or the actual 12-month reporting period used by the CAFO) from each CAFO authorized under a CAFO general permit or through an individual water quality permit in accordance with this subchapter. The report shall be submitted on forms prescribed by the executive director and shall include, but is not limited to, the following information:(1) number and type of animals, whether in open confinement or housed under roof;(2) estimated total manure, sludge, and wastewater generated during the reporting period;(3) total manure, sludge, and wastewater land applied during the reporting period;(4) total manure, sludge, and wastewater transferred to other persons during the reporting period;(5) total number of acres for land application under the control of the CAFO operator, including both the acres included in the NMP for the CAFO and the total number of acres used during the reporting period for land application;(6) summary of discharges of manure, sludge, or wastewater from the production area that occurred during the reporting period including dates, times, and approximate volume;(7) a statement indicating that the NMP under which the CAFO is operating was developed or revised and approved by a certified nutrient management specialist;(8) a copy of the initial soil analysis for each LMU, regardless of whether manure, sludge, or wastewater has been applied;(9) soil monitoring reports of all soil samples collected in accordance with the requirements of this subchapter;(10) groundwater monitoring reports if applicable;(11) the actual crop(s) planted and yield(s) for each LMU;(12) the actual nitrogen and phosphorus content of the manure, sludge, and process wastewater that was land applied;(13) the data used in calculations and the results of calculations conducted in accordance with subsection (c) of this section;(14) the amount of manure, sludge, and wastewater applied to each LMU during the reporting period;(15) any supplemental fertilizer applied during the reporting period; and(16) any other information requested by the executive director.</content><note type="source"><p>Source Note: The provisions of this §321.36 adopted to be effective April 1, 1987, 12 TexReg 904; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 27, 1999, 24 TexReg 5721; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective May 3, 2006, 31 TexReg 3585; amended to be effective July 31, 2014, 39 TexReg 5786.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.37"><num value="321.37">§321.37</num><heading>Effluent Limitations for Concentrated Animal Feeding Operation (CAFO) Production Areas</heading><content>(a) The following requirements will be applied in a permit or authorization issued by the commission, as applicable to concentrated animal feeding operations (CAFOs).(b) The effluent limitations promulgated by the United States Environmental Protection Agency applicable to duck CAFOs, including 40 Code of Federal Regulations (CFR) §§412.20 - 412.26 are adopted by reference.(c) There shall be no discharge of manure, sludge, or wastewater from a poultry (chickens and turkeys), swine, or veal calf CAFO production area that is subject to the new source performance standards in 40 CFR §412.46.(1) The operator of a poultry (chickens and turkeys), swine, or veal calf CAFO subject to the new source performance standards in 40 CFR §412.46 shall design, construct, operate, and maintain retention control structures (RCSs) such that no discharge will occur.(2) Provisions for upset or bypass, as defined in §321.32 of this title (relating to Definitions) and as provided in 40 CFR §122.41 (m) and (n), apply to a new source subject to this provision. To establish the affirmative defense of upset, a permittee shall demonstrate, through properly signed operating logs, or other relevant evidence that:(A) an upset occurred and that the permittee can identify the cause(s) of the upset; and(B) the permitted facility was at the time being properly operated in accordance with its permit or authorization and all applicable CAFO rules and regulations.(d) Except as provided by this subsection, and §321.42(c) of this title (relating to Requirements Applicable to the Major Sole-Source Impairment Zone), for all other CAFOs, there shall be no discharge of manure, sludge, or wastewater from a CAFO production area.(1) The operator of the CAFO shall design, construct, operate, and maintain RCSs to contain all wastewater including the runoff and direct precipitation from the 25-year, 24-hour rainfall event for the location of the facility.(2) A discharge that is the result of a chronic or catastrophic rainfall event, or the result of catastrophic conditions, from an RCS that has been properly designed, constructed, operated, and maintained is allowed.(3) Voluntary alternative performance standards may be established in an individual water quality permit for a cattle (other than veal calves) or dairy CAFO, when requested by a permit applicant. These standards may be established as effluent limitations in lieu of the requirements of paragraph (1) of this subsection, so long as they are not in conflict with other requirements of this subchapter or other requirements of the commission. Voluntary alternative performance standards shall be consistent with the requirements of 40 CFR §412.31(a)(2).</content><note type="source"><p>Source Note: The provisions of this §321.37 adopted to be effective April 1, 1987, 12 TexReg 904; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 27, 1999, 24 TexReg 5721; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective July 31, 2014, 39 TexReg 5786.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.38"><num value="321.38">§321.38</num><heading>Control Facility Design Requirements Applicable to Concentrated Animal Feeding Operations (CAFOs)</heading><content>(a) Purpose. The purpose of this section is to describe the control facility design requirements that apply to concentrated animal feeding operations (CAFOs). Any CAFO operator that does not use a retention control structure (RCS) is not subject to subsections (e), (f), and (g) of this section. (b) Well buffers. Except as provided by subsection (c) of this section, the control facility of an animal feeding operation (AFO) shall be separated from a well by ensuring a minimum buffer zone, as described in this subsection. An AFO shall not locate a new RCS or holding pen within the required well buffer zones: (1) public drinking water supply wells - 500 feet; (2) drinking water wells used for private water supply - 150 feet; or (3) water wells used exclusively for agriculture irrigation - 100 feet. (c) Buffer variance. A CAFO operating under an existing authorization may continue the operation and use of any existing land management units (LMUs), holding pens and RCSs located within the required well buffer zones provided they are in accordance with the recharge feature evaluation and certification required under §321.34(f)(3) of this title (relating to Permit Applications). For new wells drilled after July 20, 2004, documentation supporting variances of the buffer zones that were previously authorized shall be kept on site and made available to agency personnel upon request. (d) 100-year flood plain. All control facilities, including holding pens and RCSs, shall be located outside of the 100-year flood plain unless the facility is protected from inundation and damage that may occur during the 100-year flood event. (e) RCS design capacity. The following design requirements apply to any CAFO. (1) The design of a control facility shall include measures that will be used to minimize entry of uncontaminated runoff into RCSs. (2) Any CAFO constructing a new or modifying an existing RCS shall ensure that the design specifications and completed construction specifications are certified by a licensed Texas professional engineer. The failure to obtain the certifications or to maintain records verifying the certifications is a violation of this subchapter. (3) Except as provided in this subsection, each RCS, at a minimum, shall be designed and constructed in accordance with the technical standards developed by the Natural Resources Conservation Service (NRCS), American Society of Agricultural and Biological Engineers, American Society of Civil Engineers, American Society of Testing Materials, or other technical standard approved by the executive director that are in effect at the time of construction. Where site-specific variations are warranted, a licensed Texas professional engineer shall document these variations and their appropriateness to the design. (4) Any existing RCS that has been properly maintained without any modifications and has no apparent structural problems or leakage is considered to be properly designed with respect to the RCS sizing, embankment design and construction, and liner requirements of this section, provided that any required documentation was completed in accordance with the requirements at the time of construction. If no documentation exists, the RCS must be certified by a licensed Texas professional engineer as providing protection equivalent to the requirements of this section. (5) Any RCS documented to have been built in accordance with site-specific NRCS plans and specifications is considered to be in compliance with the design and capacity requirements of this subchapter provided that: (A) the site-specific conditions are the same as those used by the NRCS to develop the plan (numbers of animals, runoff area, manure, sludge, and wastewater generated, etc.); and (B) the RCS is operated and maintained in accordance with NRCS requirements. (6) The production area of a new or expanding AFO shall not be constructed in any stream, river, lake, wetland, or playa, except as provided in §321.41 of this title (relating to Special Requirements for Discharges to a Playa). (7) The design plan must include documentation of the sources of information, assumptions, and calculations used in determining the appropriate volume capacity of the RCSs. Poultry (chickens and turkeys), swine, or veal calf CAFOs subject to the new source performance standards in subparagraph (B) of this paragraph shall be designed in accordance with subparagraphs (B) and (C) of this paragraph or subparagraphs (B) and (D) of this paragraph. For all other CAFOs, the volume must include design rainfall event runoff and normal operating capacity requirements in accordance with subparagraphs (A) and (C) of this paragraph or design rainfall event runoff and evaporation systems in accordance with subparagraphs (A) and (D) of this paragraph. (A) Design rainfall event runoff. All CAFOs, other than poultry (chickens and turkeys), swine, or veal calf CAFOs subject to the new source performance standards in subparagraph (B) of this paragraph, shall have an RCS designed and constructed to meet or exceed the capacity required to contain the runoff and direct precipitation from the 25-year, 24-hour rainfall event, except as required by §321.42(c) of this title (relating to Requirements Applicable to the Major Sole-Source Impairment Zone) or authorized under §321.37(d)(3) of this title (relating to Effluent Limitations for Concentrated Animal Feeding Operation (CAFO) Production Areas). (B) New source swine, veal, or poultry (chickens and turkeys) CAFOs. Any swine, veal, or poultry (chickens and turkeys) CAFO subject to the new source performance standards in 40 Code of Federal Regulations (CFR) §412.46 shall have an RCS designed and constructed such that no discharge will occur in accordance with the following: (i) Information used in the design of the RCS shall include, but is not limited to, the following: design rainfall event, additional minimum capacity for chronic rainfalls identified in the evaluation required by clause (ii) of this subparagraph, the requirements of subparagraph (C) or (D) of this paragraph, additional storage capacity for wastewater intended to be transferred to another recipient at a later time, and any other factors that would affect the sizing of the RCS. (ii) An evaluation of the adequacy of the designed RCS using the most recent version of the Soil Plant Air Water (SPAW) Hydrology Tool, or other tool approved by the executive director. The evaluation must include all inputs to SPAW including, but not limited to, daily precipitation, temperature, and evaporation data for the previous 100 years, user-specified soil profiles representative of the LMUs, planned crop rotations consistent with the nutrient management plan, and the final modeled result of no discharges from the designed RCS. For those CAFOs where 100 years of local weather data is not available, a simulation with a confidence interval analysis conducted over a period of 100 years may be used. (C) Design capacity requirements for systems using irrigation. (i) The RCS shall be designed for the authorized number of animals to include any storage volume required by a hydrologic needs analysis (water balance) that documents that the typical irrigation demands of the adopted crop and irrigated land area will not be exceeded. (ii) Precipitation inputs to the water balance shall be the average monthly precipitation reported in a National Weather Service current publication. (iii) The consumptive use requirements of the cropping system shall be developed on a monthly basis, and shall be calculated as a part of the water balance. (iv) The maximum required storage value calculated by the water balance shall not encroach on the storage volume required for the design rainfall event. (v) Wastewater application rates used in the water balance shall not induce uncontrolled runoff or create tailwater that causes a discharge. (vi) All process-generated wastewater produced during a 21-day or greater period. (vii) Any other relevant volume needed in the water balance, including any required under the air standard permit in §321.43 of this title (relating to Air Standard Permit for Animal Feeding Operations (AFOs)). (D) Design requirements for evaporation systems. Evaporation systems shall be designed: (i) to withstand a ten-year (consecutive) period of maximum recorded monthly rainfall (other than catastrophic). In any month in which a catastrophic rainfall event occurs, the water balance shall replace such an event with not less than the long-term average rainfall for that month as determined by a water balance; and (ii) to maintain sufficient volume to contain rainfall and rainfall runoff from the design rainfall event without overflow. The depth for this volume must be at least one vertical foot allocated within the RCS above the volume required in clause (i) of this subparagraph. (f) Dewatering system. An irrigation system or other liquid removal system used by an AFO must be designed to ensure that the system is capable of dewatering the RCSs on a regular schedule. RCSs shall be equipped with irrigation or wastewater removal systems capable of dewatering the RCSs whenever needed to restore the operating capacity. Dewatering equipment shall be maintained in proper working order. (g) RCS embankment and liner design. (1) For RCSs where the depth of water impounded against the embankment at the spillway elevation is three feet or more, the RCS is considered to be designed with an embankment. The pollution prevention plan shall include a description of the design specifications for the RCS embankments. The following design specifications are required for all new construction or the modified portions of existing RCSs. (A) Soils used in the embankment shall be free of foreign material such as rocks larger than four inches, trash, brush, and fallen trees. (B) The embankment shall be constructed in lifts or layers no more than eight inches compacted to six inches thick at a minimum compaction effort of 95% Standard Proctor Density (ASTM D698) at -1% to +3% optimum moisture content. (C) All embankment walls shall be stabilized to prevent erosion or deterioration. (D) Embankment construction must be accompanied by certified compaction tests including in-place density and moisture in accordance with ASTM D1556, D2167, or D2937 for density and D2216, D4634, D4944, or D4959 for moisture, and D2922-91 or D6938-07 for moisture and density, or equivalent testing standards. (E) Additional protection for new or modified portions of existing RCSs that are constructed with embankments designed to contain runoff from a drainage area shall be constructed with a spillway or other outflow device properly sized according to NRCS design and specifications to protect the integrity of the embankment. (F) For all new construction or the modified portions of existing RCSs, each RCS must have a minimum of two vertical feet of freeboard constructed with materials equivalent to those used at the time of design and construction between the top of the embankment and the structure's spillway. RCSs without spillways must have a minimum of two vertical feet of freeboard between the top of the embankment and the required storage capacity. (2) For all new construction and for all structural modifications of existing RCSs, each RCS must meet the requirements for lack of hydrologic connection or have a liner consistent with subparagraph (B), (C), or (D) of this paragraph. (A) This subparagraph applies to lack of hydrologic connection requirements. Documentation must show that there will be no significant leakage from the RCS; or that any leakage from the RCS will not migrate to water in the state. A permit or authorization will require documentation of the lack of hydrologic connection certified by a licensed Texas professional engineer or licensed Texas professional geoscientist and must include information on the hydraulic conductivity and thickness of the natural materials underlying and forming the walls of the containment structure up to the wetted perimeter. If it is claimed that no significant leakage would result from the use of in-situ materials, documentation must be provided that leakage will not migrate to waters in the state. The operator must at a minimum include maps showing groundwater flow paths, or that the leakage enters a confined environment. A permit or authorization will require a written determination by an NRCS engineer, a licensed Texas professional engineer or a licensed Texas professional geoscientist that a liner is not needed to prevent a significant hydrologic connection between the contained wastewater and waters in the state. (B) This subparagraph applies to RCS liners using in-situ material. In-situ material is undisturbed, in-place, native soil material. In-situ materials must at least meet the minimum criteria for hydraulic conductivity, thickness, and calculated specific discharge, as described in subparagraph (C) of this paragraph. Samples shall be collected and analyzed in accordance with subparagraph (E) of this paragraph. This documentation must be certified by a licensed Texas professional engineer or licensed Texas professional geoscientist. (C) This subparagraph applies to constructed or installed earthen liners. Constructed or installed liners must be designed by a licensed Texas professional engineer. The liner must be constructed in accordance with the design and certified as such by a licensed Texas professional engineer. Compaction tests and post construction sampling and analyses will provide support for the liner certification. Liners shall be designed and constructed to have hydraulic conductivities no greater than 1 x 10-7 centimeters per second (cm/sec), with a thickness of 1.5 feet or greater or its equivalency in other materials, and not to exceed a specific discharge through the liner of 1.1 x 10-6 cm/sec calculated using Darcy's Law with the water level at the spillway depth. Constructed or installed liners must be designed and constructed to meet the soil requirements, lift requirements, and compaction testing requirements identified in the permit or authorization. The operator shall maintain the liner to minimize the percolation of wastewater through the liner. (D) This subparagraph applies to geosynthetic liners. Geosynthetic liners that meet the specific discharge requirements in subparagraph (C) of this paragraph are acceptable if certified by a licensed Texas professional engineer. Documentation must be presented to the executive director for review and approval before putting into service. Installation of the liner shall be certified by a licensed professional engineer that the liner and subgrade were completed according to the manufacturer's recommendations and current standards. Seams shall be completed in accordance with the manufacturer's requirement. When wedge weld seams are used, non-destructive seam testing shall be conducted on the complete length of the wedge weld by standard air pressure testing. The certification must document compliance with all of the following standards: ASTM D5888 Storage and Handling of Geosynthetic Clay Liners, ASTM D5889 Quality Control of Geosynthetic Clay Liners, and ASTM D6102 Guide for Installation of Geosynthetic Clay Liners. (E) This subparagraph applies to liner sampling and analyses of in-situ material and earthen liners. (i) The licensed Texas professional engineer or licensed Texas professional geoscientist shall use best professional practices to ensure that corings or other liner samples will be appropriately plugged with material that also meets liner requirements of this subsection. (ii) Samples shall be collected in accordance with ASTM D1587 or other method approved by the executive director. For each RCS, a minimum of two core samples collected from the bottom of the RCS and a minimum of at least one core sample from each sidewall. Additional samples may be necessary based on the best professional judgment of the licensed professional engineer. Distribution of the samples shall be representative of liner characteristics, and proportional to the surface area of the sidewalls and floor. Documentation shall be provided identifying the sample locations with respect to the RCS liner. (iii) For earthen liners, undisturbed samples shall be analyzed for hydraulic conductivity in accordance with ASTM D5084, whole pond seepage analysis as described in ASABE Paper Number 034130, Double Ring Infiltrometer (stand pipe), or other method approved by the executive director. (F) A permit or authorization shall include provisions whereby the executive director may, upon written notice, require the operator to install a leak detection system or monitoring well(s), based upon a determination that significant potential exists for the contamination of water in the state or drinking water. (G) Documentation of lack of hydrologic connection, liner, and capacity certifications by a licensed Texas professional engineer or licensed Texas professional geoscientist must be completed for each RCS and kept on site. (h) Manure storage. The AFO operator shall provide manure storage capacity based upon manure and waste production, land availability, and the NRCS Field Office Technical Guide or equivalent standards. When manure is stockpiled, it shall be stored in a well-drained area with no ponding of water, and the top and sides of stockpiles shall be adequately sloped to ensure proper drainage. Runoff from manure storage piles must be retained on site. If the manure areas are not roofed or covered with impermeable material, protected from external rainfall, or bermed to protect from runoff in the case of the design rainfall event, the manure areas must be located within the drainage area of the RCS and accounted for in the design calculations of the RCS.</content><note type="source"><p>Source Note: The provisions of this §321.38 adopted to be effective April 1, 1987, 12 TexReg 904; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective July 31, 2014, 39 TexReg 5786.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.39"><num value="321.39">§321.39</num><heading>Operational Requirements Applicable to Concentrated Animal Feeding Operations (CAFOs)</heading><content>(a) Purpose. The purpose of this section is to describe the operational requirements that apply to concentrated animal feeding operations (CAFOs). Any CAFO operator that does not use a retention control structure (RCS) is not subject to subsections (b) and (c) of this section.(b) RCS operation and maintenance. A CAFO using an RCS for storage and treatment of stormwater, sludge, or process-generated wastewater, including liquid manure handling systems, shall ensure that the required capacity in the RCS is available to contain rainfall and rainfall runoff from the design rainfall event.(1) The operator shall restore such capacity after each rainfall event or accumulation of manure, sludge, or process-generated wastewater that reduces such capacity, when conditions are favorable for irrigation. Favorable conditions shall be when the soil moisture level decreases so that irrigation will not cause runoff.(2) The normal operating wastewater level in the RCS shall be maintained in accordance with the design of the RCS. If the water level in the RCS encroaches into the storage volume reserved for the design rainfall event, the operator must document the conditions that resulted in this occurrence. As soon as irrigation is allowed, the CAFO operator shall irrigate until the water level is at or below the design rainfall level.(3) If an RCS is in danger of imminent overflow from chronic or catastrophic rainfall or catastrophic conditions, the CAFO operator shall take reasonable steps to irrigate wastewater to land management units (LMUs) only to the extent necessary to prevent overflow from the RCS. If irrigation results in a discharge from an LMU, the CAFO operator shall collect samples from the drainage pathway at the point of discharge from the LMU, analyze the samples for the parameters identified in §321.44(b)(1) of this title (relating to Concentrated Animal Feeding Operation (CAFO) Notification Requirements), and provide the appropriate notifications in accordance with §321.44(a) of this title. The operator shall orally notify the appropriate regional office within 24 hours of beginning irrigation under this provision and in writing within 14 working days.(4) A rain gauge capable of measuring the design rainfall event shall be installed and properly maintained.(5) The CAFO operator shall maintain the liner to inhibit infiltration of wastewater. The CAFO operator shall ensure liners and embankments are protected from animals by fences or other protective devices. No tree shall be allowed to grow such that the root zone would intrude or compromise the structure of the liner or embankment. Any mechanical or structural damage to the liner or embankment shall be evaluated by a licensed Texas professional engineer within 30 days following discovery of the damage. For re-certification of an earthen liner following mechanical or structural damage, a minimum of one sample shall be collected and analyzed to document that the liner meets the requirements of the liner certification for that RCS prior to the damage.(6) The CAFO operator shall install and maintain a permanent pond marker in the RCS, visible from the top of the embankment that identifies, either physically or by documentation in the pollution prevention plan, the volume required for the design rainfall event and minimum treatment volume, in accordance with §321.43(j)(3)(B) of this title (relating to Air Standard Permit for Animal Feeding Operations (AFOs)).(c) Sludge. The CAFO operator shall monitor sludge accumulation and depth in an RCS, as necessary, based upon the design sludge storage volume in the RCS.(1) Sludge shall be removed from the RCSs in accordance with the design schedule for cleanout to prevent the accumulation of sludge from encroaching on the volumes reserved for minimum treatment, if necessary, and the design rainfall event.(2) The operator shall provide written notice to the appropriate regional office of the commission as soon as the RCS cleaning is scheduled, but not less than ten business days prior to cleaning. The operator shall also provide written verification of completion to the same regional office within five business days after the cleaning is complete. This paragraph does not apply to cleaning of solid separators or settling basins. Removal of sludge shall be conducted during favorable wind conditions that carry odors away from nearby receptors. Any increase in odors associated with a properly managed cleanout under this subsection will be taken into consideration by the executive director when determining compliance with the provisions of this subchapter.(d) Spill prevention and recovery. The CAFO operator shall take appropriate measures necessary to prevent spills and to clean up spills of any toxic pollutant. Where potential spills can occur, materials, handling procedures, and storage shall be specified. The CAFO operator shall identify the procedures for cleaning up spills and shall make available the necessary equipment to personnel to implement a cleanup. The CAFO operator shall store, use, and dispose of all pesticides in accordance with label instructions. There shall be no disposal of pesticides, solvents or heavy metals, or of spills or residues from storage or application equipment or containers, into RCSs. Incidental amounts of such substances entering an RCS as a result of stormwater transport of properly applied chemicals is not a violation of this section.(e) Storage of manure and sludge. A permit or authorization will establish requirements for the temporary storage of manure, or sludge not to exceed 30 days, and requirements for permanent storage for more than 30 days. Temporary storage of manure and sludge in the 100-year flood plain, near water courses, or near recharge features is prohibited, unless protected from inundation and damage that may occur during the 100-year runoff event. Contaminated runoff from manure storage piles must be retained on site. If the manure areas are not roofed or covered with impermeable material, protected from external rainfall, or bermed to protect from runoff in the case of the design rainfall event, the manure areas must be located within the drainage area of the RCS and accounted for in the design calculations of the RCS.(f) Composting. Composting on site at a CAFO shall be performed in accordance with Chapter 332 of this title (relating to Composting). CAFOs may compost manure, sludge, and dead animals generated on site. In accordance with Chapter 332 of this title, a CAFO operator may add agricultural products to provide an additional carbon source or bulking agent to aid in the composting process. If the compost areas are not roofed or covered with impermeable material, protected from external rainfall, or bermed to protect from runoff in the case of the design rainfall event, the compost areas must be located within the drainage of the RCS and must be shown on the site plan and accounted for in the RCS design calculations.(g) Maintenance of animals.(1) Animals confined at the CAFO shall be restricted from coming into direct contact with surface water in the state through the use of fences or other controls.(2) A CAFO that maintains animals in pastures must maintain crops, vegetation, forage growth, or post-harvest residues in the normal growing season, excluding the feed and water trough areas.(3) Carcass disposal. Carcasses shall be collected within 24 hours of death and properly disposed of within three days of death in accordance with Texas Water Code, Chapter 26; Texas Health and Safety Code, Chapter 361; and Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), unless otherwise provided for by the commission. Animals must not be disposed of in any liquid manure or process wastewater system. Disposal of diseased animals shall also be conducted in a manner that prevents a public health hazard in accordance with Texas Agriculture Code, §161.004, and 4 TAC §§31.3, 58.31(b), and 59.12 (relating to Disposal, Disposal of Diseased or Exposed Livestock, and Carcass Disposal Requirements, respectively). Carcass disposal shall be addressed in the potential pollutant sources section of the pollution prevention plan with management practices to prevent contamination of surface or groundwater, control access, and minimize odors.(h) Closure required.(1) The operator shall submit a closure plan to the executive director and the appropriate regional office within 90 days of permanently ceasing operations.(2) The closure plan must be developed and certified by a licensed Texas professional engineer to meet the standards contained in the NRCS Practice Standard Code 360 (Closures of Waste Impoundments), and using the guidelines contained in the Texas AgriLife Extension Service/NRCS publication #B-6122 (Closure of Lagoons and Earthen Manure Storage Structures).(3) The RCS or CAFO shall be properly closed within one year of Texas Commission on Environmental Quality receipt of the closure plan or an alternate schedule approved by the executive director. The RCS or CAFO is considered properly closed upon certification by a licensed Texas professional engineer that closure is complete according to the closure plan.(4) The operator shall maintain or renew its existing authorization and maintain compliance with the requirements of this subchapter until the facility is properly closed.</content><note type="source"><p>Source Note: The provisions of this §321.39 adopted to be effective April 1, 1987, 12 TexReg 904; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 27, 1999, 24 TexReg 5721; amended to be effective March 6, 2002, 27 TexReg 1511; amended to be effective September 1, 2003, 28 TexReg 6302; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective July 31, 2014, 39 TexReg 5786.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.40"><num value="321.40">§321.40</num><heading>Concentrated Animal Feeding Operation (CAFO) Land Application Requirements</heading><content>(a) The purpose of this section is to describe the land application requirements that apply to concentrated animal feeding operations (CAFOs).(b) The land application of manure, sludge, or wastewater at agronomic rates and hydrologic needs shall not be considered surface disposal and is not prohibited.(c) Manure, sludge, or wastewater may be applied to the areas in the 100-year flood plain at agronomic rates not to exceed the hydrologic needs of the crop.(d) Discharge of manure, sludge, or wastewater from a land management unit (LMU) is prohibited and shall not cause or contribute to a violation of surface water quality standards, contaminate groundwater, or create a nuisance condition.(e) Irrigation practices shall be managed so as to minimize ponding or puddling of wastewater on the site, prevent tailwater discharges to waters in the state, and prevent the occurrence of nuisance conditions.(f) Land application shall not occur when the ground is frozen or saturated or during rainfall events unless in accordance with §321.39(b)(3) of this title (relating to Operational Requirements Applicable to Concentrated Animal Feeding Operations (CAFOs)) or as approved by the commission.(g) The CAFO operator shall not locate a new LMU within the required well buffer zones identified in §321.38(b) of this title (relating to Control Facility Design Requirements Applicable to Concentrated Animal Feeding Operations (CAFOs)), unless additional wellhead protective measures are implemented that will prevent pollutants from entering the well and contaminating groundwater. An exception to the full well buffer zone for a private drinking water well or a water well used exclusively for agricultural irrigation may be approved by the executive director if a licensed Texas professional engineer or licensed Texas professional geoscientist provides accurate documentation showing that additional wellhead protective measures will be or have been implemented that will prevent pollutants from entering the well and contaminating groundwater. Additional protective measures may include a sanitary seal, annular seal, a steel sleeve, or surface slab.(h) Vegetative buffer strips shall be maintained in accordance with Natural Resources Conservation Service (NRCS) Practice Standard Code 393. The minimum buffer shall be no less than 100 feet of vegetation to be maintained between manure, sludge, or wastewater application areas and water in the state. A buffer is not required for wastewater irrigation when applied by low-pressure, low-profile center pivot irrigation systems in areas of the state where the annual average rainfall is less than 25 inches per year. Land application of manure, sludge, and wastewater into surface water in the state is an unauthorized discharge and is prohibited.(i) CAFOs introducing wastewater or chemicals to water wellheads for the purpose of irrigation shall install backflow prevention devices in accordance with requirements contained in 16 TAC Chapter 76 (relating to Water Well Drillers and Water Well Pump Installers) and Chapter 290 of this title (relating to Public Drinking Water), as appropriate.(j) Nighttime application of manure, sludge, or wastewater by a CAFO shall be allowed only in areas with no occupied residence(s) within 1/4 mile from the outer boundary of the actual area receiving manure, sludge, or wastewater application. In areas with an occupied residence within 1/4 mile from the outer boundary of the actual area receiving manure, sludge, or wastewater application, application shall only be allowed from one hour after sunrise until one hour before sunset, unless the current resident owner or lessee of such residences have agreed in writing to specified nighttime applications.(k) Nutrient requirement.(1) Any land application of manure, sludge, and wastewater shall not exceed the planned crop requirements. Land application rates of manure, sludge, or wastewater shall be based on the total nutrient concentration, on a dry weight basis, where applicable.(2) Critical phosphorus level. Land application of manure, sludge, or wastewater shall not exceed the crop removal rate when results of the annual soil analysis for extractable phosphorus indicate:(A) a level greater than 200 parts per million (ppm) for a particular LMU; or(B) a level greater than 350 ppm for an LMU where the average annual rainfall is 25 inches or less and erosion control is adequate to keep erosion at the soil loss tolerance (T) or less and the closest edge of the field is more than one mile from a named stream; or(C) if ordered by the executive director to do so in order to protect water in the state.(3) Dairy CAFOs located in a major sole-source impairment zone shall develop a nutrient utilization plan (NUP) when the annual soil analysis for extractable phosphorus in zone 1 (0 - 6-inch incorporated; 0 - 2 or 2 - 6-inch if not incorporated) depth in an LMU is greater than 200 ppm. State-only CAFOs shall develop a NUP when the annual soil analysis for an LMU indicates the critical phosphorus levels in paragraph (2) of this subsection have been exceeded. A nutrient management plan, based on crop removal certified as meeting the NRCS Practice Standard Code 590 is equivalent to the requirements for a NUP.(A) If an operator is required to develop a NUP, the operator shall cease land application of manure, sludge, or wastewater to the affected area and may resume only after a NUP is implemented.(B) The NUP must be developed and certified by:(i) an employee of the NRCS;(ii) a nutrient management specialist certified by the NRCS;(iii) the Texas State Soil and Water Conservation Board;(iv) Texas AgriLife Extension Service;(v) an agronomist or soil scientist on full-time staff at an accredited university located in the State of Texas;(vi) a Certified Professional Agronomist certified through the certification program of the American Society of Agronomy;(vii) a Certified Professional Soil Scientist certified through the certification program of the Soil Science Society of America; or(viii) a licensed geoscientist-soil scientist in Texas after approval by the executive director based on a determination by the executive director that another person or entity identified in this subparagraph cannot develop the plan in a timely manner.(C) After a NUP is implemented, the operator shall land apply in accordance with the NUP until soil phosphorus is reduced below the critical phosphorus level. Thereafter, the operator of a dairy CAFO located in a major sole-source impairment zone shall implement the requirements of the nutrient management plan certified in accordance with §321.36(c) of this title (relating to Texas Pollutant Discharge Elimination System General Requirements for Concentrated Animal Feeding Operations (CAFOs)) and the operator of other state-only CAFOs must follow the requirements in this section.(D) Land application under the terms of the NUP may begin 30 days after the plan is filed with the executive director, unless before that time the executive director has returned the plan for failure to comply with all the requirements of this subsection.(l) Runoff from an LMU. Where manure, sludge, or wastewater is applied in accordance with a site-specific nutrient management plan that complies with §321.36(c) of this title or when the land application conforms to this section, precipitation-related runoff from LMUs is authorized as:(1) a pollutant discharge if the source is land associated with a CAFO in a major sole-source impairment zone; or(2) an agricultural stormwater discharge for all other sources.(m) Sampling and Testing.(1) Initial sampling. Before commencing land application of manure, sludge, or wastewater on LMUs and before resuming land application on LMUs where manure, sludge, or wastewater was not applied during the preceding year, the operator shall:(A) collect and analyze at least one representative sample of manure, sludge (if applicable), and wastewater for total nitrogen, total phosphorus, and total potassium;(B) collect and analyze at least one representative soil sample from each LMU according to the procedures in paragraphs (4) and (5) of this subsection; and(C) utilize the results of these analyses in determining application rates for manure, sludge, and wastewater.(2) Annual Sampling. The operator shall:(A) collect and analyze at least one representative sample of manure, sludge (if applicable), and wastewater for total nitrogen, total phosphorus, and total potassium;(B) collect and analyze at least one representative soil sample from each LMU where manure, sludge, or wastewater was applied during the preceding year according to the procedures in paragraphs (4) and (5) of this subsection; and(C) utilize the results of these analyses in determining application rates for manure, sludge, and wastewater.(3) The operator shall make the most recent nutrient analysis available to any recipient of manure, sludge, or wastewater.(4) Sampling procedures. The operator shall employ sampling procedures using accepted techniques of soil science for obtaining representative samples and analytical results.(A) Samples shall be collected using approved methods described in the agency's guidance RG-408 entitled "Soil Sampling for Concentrated Animal Feeding Operations."(B) Samples shall be collected by the operator or its designee and analyzed by a soil testing laboratory annually, except when crop rotations or inclement weather require a change in the sampling time. The pollution prevention plan shall contain documentation to explain the reasons for adjusting the sampling timeframe.(C) Obtain one composite sample for each LMU and per uniform soil type (soils with the same characteristics and texture) within the LMU.(D) Composite samples shall be comprised of 10 - 15 randomly sampled cores at a depth of zero to six inches.(5) Laboratory analysis. The operator shall have a laboratory analysis of the soil samples performed for physical and chemical parameters to include: nitrate reported as nitrogen in ppm; phosphorus (extractable, ppm, using Mehlich III extractant with Inductively Coupled Plasma analysis); potassium (extractable, ppm); sodium (extractable, ppm); magnesium (extractable, ppm); calcium (extractable, ppm); soluble salts (ppm) or electrical conductivity (deciSiemens/meter (dS/m) or millimhos/cm (mmhos/cm) determined from extract of 2:1 volume to volume (v/v) water/soil mixture); and soil water pH (soil:water, 1:2 ratio).</content><note type="source"><p>Source Note: The provisions of this §321.40 adopted to be effective April 1, 1987, 12 TexReg 904; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 27, 1999, 24 TexReg 5721; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective July 31, 2014, 39 TexReg 5786.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.41"><num value="321.41">§321.41</num><heading>Special Requirements for Discharges to a Playa</heading><content>(a) This section applies to any animal feeding operation (AFO) operator authorized by the commission before July 13, 1995 to discharge manure, litter, or wastewater into a playa or to use a playa as a retention control structure for manure, litter or wastewater in accordance with Texas Water Code, §26.048.(b) A playa that is in use as a retention control structure, as allowed by Texas Water Code (TWC), §26.048, and that shows no signs of leakage, is considered to satisfy all applicable design and construction requirements specified in §321.38 of this title (relating to Control Facility Design Requirements Applicable to Concentrated Animal Feeding Operations (CAFOs)).(c) A groundwater plan for use of a playa shall be implemented in accordance with TWC, §26.048.(d) If the executive director determines that contamination of groundwater is occurring as a result of use of the playa as a retention facility for manure, litter, or wastewater from the AFO, the executive director shall require action to correct the problem or revoke the AFOs authority to discharge into the playa.</content><note type="source"><p>Source Note: The provisions of this §321.41 adopted to be effective April 1, 1987, 12 TexReg 904; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 27, 1999, 24 TexReg 5721; amended to be effective July 15, 2004, 29 TexReg 6652.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.42"><num value="321.42">§321.42</num><heading>Requirements Applicable to the Major Sole-Source Impairment Zone</heading><content>(a) The purpose of this section is to describe certain requirements for individual water quality permits for dairy concentrated animal feeding operations (CAFOs) or other authorizations allowed by this subchapter when an operation is located in a major sole-source impairment zone. Additionally, subsection (i) of this section applies to any dairy animal feeding operation (AFO), including any dairy CAFO, which is located in a major sole-source impairment zone.(b) The dairy CAFO operator must adhere to provisions of this section and the other requirements contained in this subchapter. When a requirement of this section conflicts with another requirement of this subchapter, the requirement of this section shall supercede the other requirement.(c) The dairy CAFO operator must operate and maintain a margin of safety in the retention control structure (RCS) to contain the volume:(1) of runoff and direct precipitation from the 25-year, ten-day rainfall event; or(2) necessary to prevent overflow resulting from a statistically determined probability of overflow resulting in a discharge frequency of no more than once in 25 years. The margin of safety using this method must be evaluated using the Soil Plant Air and Water (SPAW) Field and Pond Hydrology Tool and be certified by a Texas licensed professional engineer.(d) The dairy CAFO is only authorized to discharge from a properly operated and maintained RCS when the volume of the rainfall runoff and direct precipitation exceed the volume for the margin of safety that must be maintained in the RCS.(e) If construction of new or modified RCSs is necessary to comply with subsections (c) and (d) of this section, a permit or other authorization will specify a schedule for compliance.(f) The dairy operator shall install and maintain a permanent pond marker (measuring device) in the RCS visible from the top of the levee to show the following:(1) the volume for the margin of safety; and(2) one-foot increments beginning from the predetermined minimum treatment volume of the RCS to the top of the embankment or spillway.(g) The dairy operator shall implement an RCS management plan incorporating the margin of safety developed by a licensed Texas professional engineer. The management plan shall become a component of the pollution prevention plan (PPP), shall be developed for the RCS system, and must describe or include:(1) RCS management controls appropriate for the CAFO and the methods and procedures for implementing such controls;(2) the methods and procedures for proper operation and maintenance of the RCS consistent with the system design;(3) the appropriateness and priorities of any controls reflecting the identified sources of pollutants at the facility;(4) a stage/storage table for each RCS with minimum depth increments of one-foot, including the storage volume provided at each depth;(5) a second table or sketch that includes increments of water level ranges for volumes of total design storage, including the storage volume provided at each specified depth (or water level) and the type of storage designated by that depth; and(6) the planned end of month storage volume anticipated for each RCS for each month of the year and the corresponding operating depth expected at the end of each month of the year, based on the design assumptions.(h) The dairy operator shall monitor and record wastewater levels daily in the RCS. A log shall be kept in the PPP to document the level of wastewater observed each day. In circumstances where the RCS has a water level exceeding the expected end of the month depth, the operator shall document in the PPP why the level of water in the structure is not at or below the expected depth.(i) The dairy operator shall provide for management and disposal of waste as specified in Texas Water Code, §26.503, in accordance with the following:(1) beneficially used outside of the watershed;(2) disposed in landfills outside of the watershed, subject to the requirements of commission rules relating to industrial solid waste;(3) delivered to a composting facility approved by the executive director;(4) put to another beneficial use approved by the executive director; or(5) applied in any of the following ways:(A) in accordance with a nutrient management plan (NMP) certified in accordance with Natural Resources Conservation Service (NRCS) Code 590 Practice Standard to a waste application field that is owned, operated, controlled, rented, or leased by the owner of the CAFO, if the field is not a historical waste application field, as defined in §321.32 of this title (relating to Definitions);(B) in accordance with an NMP certified in accordance with NRCS Code 590 Practice standard to a historical waste application field that is owned, operated, controlled, rented, or leased by the owner or operator of the CAFO, if results of representative composite soil sampling conducted at the waste application field and submitted to the executive director show that the waste application field contains 200 or fewer parts per million (ppm) of extractable phosphorus (reported as P) in the Zone 1 (zero to six inches) depth; or(C) in accordance with a detailed nutrient utilization plan (NUP) approved by the executive director which, at a minimum, meets the requirements of §321.40(k)(3) of this title (relating to Concentrated Animal Feeding Operation (CAFO) Land Application Requirements), to a historical waste application field that is owned, operated, controlled, rented, or leased by the owner or operator of the CAFO, if results of representative composite soil sampling conducted at the waste application field and submitted to the executive director show that the waste application field contains greater than 200 ppm of extractable phosphorus (reported as P) in the Zone 1 (zero to six inches) depth.(j) Permits for existing dairy CAFOs in the major sole-source impairment zone in accordance with subsection (i) of this section may allow the operator to provide manure, litter, and wastewater to operators of third-party fields, i.e., areas of land not owned, operated, controlled, rented, or leased by an AFO owner or operator, that have been identified in the PPP. The dairy operator will be subject to enforcement action for violations of the land application requirements on any third-party field under contract. The permit provision must, at a minimum, include the following requirements:(1) there must be a written contract between the dairy operator and the recipient that requires all transferred manure, litter, and wastewater to be beneficially applied to third-party fields identified in the PPP in accordance with the applicable requirements in §321.36 of this title (relating to Texas Pollutant Discharge Elimination System Requirements for Concentrated Animal Feeding Operations (CAFOs) and §321.40 of this title at an agronomic rate based on soil test phosphorus;(2) the permit must prohibit the dairy operator from delivering manure, litter, or wastewater to an operator of a third-party field once the soil test phosphorus analysis shows a level equal to or greater than 200 ppm or after becoming aware that the third-party operator is not following §321.36 of this title and §321.40 of this title and the contract;(3) third-party fields identified in the PPP on which manure, litter, or wastewater have been applied during the preceding year must be sampled annually by a nutrient management specialist and the samples analyzed in accordance with §321.36(g) of this title; and(4) the dairy operator shall submit records to the appropriate regional office quarterly that contain the name, locations, and amounts of manure, litter, or wastewater transferred to operators of third-party fields.(k) The dairy operator must contract with the NRCS, a certified nutrient management specialist, the Texas State Soil and Water Conservation Board, the Texas Cooperative Extension, or an agronomist or soil scientist on full-time staff at an accredited university located in the State of Texas to collect one or more representative composite soil samples from each LMU including any historical waste application fields, not less than once every 12 months.(l) The dairy operator shall notify the appropriate regional office in writing or by electronic mail with the date, time, and location at least ten working days before collecting soil samples.(m) The dairy operator shall ensure that soil samples are analyzed in accordance with the procedures and laboratory analysis requirements in §321.36(g) of this title (relating to Texas Pollutant Discharge Elimination System General Requirements for Concentrated Animal Feeding Operations (CAFOs)). The dairy CAFO operator shall furnish to the appropriate regional office and the commission's Office of Compliance and Enforcement, Enforcement Division, soil testing analysis of all soil samples within 60 days of the date the samples were taken in accordance with the requirements of this subchapter.(n) If the samples tested under subsection (m) of this section show a phosphorus level in the soil of more than 500 ppm in Zone 1 (zero to six inches) depth, the operator shall file with the executive director a new or amended NUP with a phosphorus reduction component based on crop removal that is certified as acceptable by a person described in §321.40(k)(3) of this title.(o) If the samples tested under subsection (m) of this section show a phosphorus level in the soil of more than 200 ppm but not more than 500 ppm in Zone 1 (zero to six inches) depth, the operator shall:(1) file with the executive director a new or amended NUP with a phosphorus reduction component based on crop removal that is certified as acceptable by a person described in §321.40(k)(3) of this title; or(2) show that the level is supported by a NUP that is certified as acceptable by a person described under §321.40(k)(3) of this title.(p) If the owner or operator of a waste application field is required by this section to have a NUP with a phosphorus reduction component based on crop removal, and if the results of tests performed on composite soil samples collected 12 months or more after the plan is filed do not show a reduction in phosphorus concentration in Zone 1 (zero to six inches) depth, then the owner or operator is subject to enforcement action at the discretion of the executive director. The executive director, in determining whether to take an enforcement action, shall consider any explanation presented by the owner or operator regarding the reasons for the lack of phosphorus reduction, including, but not limited to, an act of God, meteorologic conditions, diseases, vermin, crop conditions, or variability of soil testing results.(q) The dairy operator shall inspect the irrigation system to prevent discharges. If a discharge from an irrigation system within the major sole-source impairment zone is documented as a violation, then the CAFO operator shall, if required by the executive director, install an automatic emergency shutdown or alarm system to notify the operator of system problems.(r) The dairy operators are prohibited from land application of manure, litter, or wastewater in a major sole-source impairment zone between midnight and 4 a.m.(s) All dairy CAFOs in a major sole-source impairment zone shall develop and operate under a comprehensive nutrient management plan (CNMP) certified by the Texas State Soil and Water Conservation Board. This CNMP shall be implemented not later than December 31, 2006.(t) In addition to the requirements of §321.44 of this title (relating to Concentrated Animal Feeding Operation (CAFO) Notification Requirements), a dairy CAFO operator in a major sole-source impairment zone must comply with this subsection. In the event of a discharge from the RCS or LMU during a chronic or catastrophic rainfall event or resulting from catastrophic conditions, the dairy CAFO operator shall orally notify the appropriate regional office within one hour of the discovery of the discharge. The operator shall send written notification to the appropriate regional office within 14 working days.(u) Any dairy CAFO operator to whom this section applies who has an unauthorized discharge from the RCS and who used the SPAW certification method for the margin of safety shall, within 90 days of written notification by the executive director, develop and implement the capacity for a 25-year, ten-day margin of safety. Upon written request, the executive director may grant a variance from the 90-day time requirement.(v) Any dairy CAFO operator to whom this section applies shall, in the event of a discharge from an RCS or LMU, submit a report to the appropriate regional office showing the facility records that substantiates that the overflow was a result of cumulative rainfall that exceeded the volume of storage capacity and margin of safety without the opportunity for dewatering, and was beyond the control of the operator. After review of the report, if required by the executive director, the operator shall have an engineering evaluation by a licensed Texas professional engineer developed and submitted to the executive director. This requirement is in addition to the discharge notification requirement in this subchapter.(w) For additional protection in the major sole-source impairment zone, dairy CAFO operators who utilize LMUs must:(1) adhere to the vegetative buffer required by §321.40(h) of this title;(2) install and maintain a filter strip or vegetative barrier, according to NRCS Codes 393 or 601, between the vegetative buffer and land application area; and(3) install and maintain contour buffer strips, according to NRCS Code 332, in the land application area nearest to the vegetative barrier or filter strip.</content><note type="source"><p>Source Note: The provisions of this §321.42 adopted to be effective July 9, 1990, 15 TexReg 3639; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 27, 1999, 24 TexReg 5721; amended to be effective July 15, 2004, 29 TexReg 6652.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.43"><num value="321.43">§321.43</num><heading>Air Standard Permit for Animal Feeding Operations (AFOs)</heading><content>(a) Air quality authorization required. All animal feeding operations (AFOs), regardless of size, are required to obtain air quality authorization under the Texas Clean Air Act, Texas Health and Safety Code, Chapter 382, Subchapter C. AFOs may obtain air quality authorization in one of the following ways: (1) by meeting the requirements of a permit by rule under Chapter 106, Subchapter F of this title (relating to Animal Confinement); (2) by obtaining an individual permit under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification); or (3) by meeting the requirements in this section and the general conditions for air standard permits in §116.615 of this title (relating to General Conditions). (b) Applicability. The air standard permit requirements in this section and in §116.615 of this title are applicable to all portions of AFOs including permanent odor sources, land management units, and associated operations. The air standard permit requirements are also applicable to associated feed handling or feed milling operations (including, but not limited to, natural gas-fired boilers, milling equipment, and grain cleaners) located on the same site. This air standard permit may not be used to authorize the construction or operation of unassociated operations or equipment, including incinerators or emergency generators, located at the AFO. (c) Water quality authorization. Authorization under this air standard permit may be obtained by AFOs with water quality authorization under: (1) a Texas Pollutant Discharge Elimination System permit; (2) a state-only water quality general permit; (3) a state-only individual water quality permit; or (4) a permit by rule under this subchapter. (d) Air standard permit in lieu of individual permit. A concentrated animal feeding operation (CAFO) or other AFO that obtains water quality authorization as provided in subsection (c) of this section, and also satisfies the air quality requirements contained in this section qualifies for an air standard permit in lieu of an individual air quality permit under Chapter 116 of this title. (e) Obtaining the air standard permit for AFOs. The air standard permit may be obtained in conjunction with a water quality application for an individual or CAFO general permit. If no water quality application is pending, a separate written request for authorization under the AFO air standard permit may be submitted that must indicate that the AFO will comply with all the requirements in this section. Registration for authorization to operate under the air standard permit is not required. (f) Fee. There is no fee for the air standard permit for AFOs. (g) Facilities not eligible. A CAFO or other AFO does not qualify for authorization under the air standard permit if: (1) the CAFO or other AFO does not have water quality authorization; or (2) the CAFO or other AFO constitutes a new major source or is located at a site that constitutes a major source as defined by Chapter 116 of this title. (h) Dual authorization. No person may concurrently hold both an individual permit under Chapter 116 of this title and authorization under this air standard permit for the same AFO and associated facilities. This does not preclude the operator from holding individual permits or other applicable authorizations for facilities not authorized by this air standard permit. (i) Restriction on use of permit by rule. An AFO authorized under this air standard permit may not claim authorization under §106.532 of this title (relating to Water and Wastewater Treatment) to construct a new retention control structure (RCS). (j) Requirements for air standard permit authorization. AFOs shall meet the following requirements. (1) Air emission limitations. (A) Facilities shall be operated in such a manner as to prevent the creation of a nuisance as defined by Texas Health and Safety Code, §341.011 and §321.32(32) of this title (relating to Definitions), and as prohibited by §101.4 of this title (relating to Nuisance). Facilities shall be operated in such a manner as to prevent a condition of air pollution as defined by Texas Health and Safety Code, §382.003(3). (B) The AFO operator shall take necessary action to identify any nuisance condition that occurs. The AFO operator shall take action to abate any nuisance condition as soon as practicable or as specified by the executive director. (2) Buffer requirements. The buffer requirements in the following table apply to all of the requirements in subparagraphs (A) - (F) of this paragraph. Attached Graphic(A) The determination of whether the applicable buffer requirements are satisfied shall be made on the basis of conditions existing at the earlier of: (i) the date new construction, expansion, or modification of a facility begins; or (ii) the date any application or notice of intent is first filed with the commission to obtain approval for the construction or operation of the facility. (B) The operator of an AFO shall document that the applicable buffer requirement is satisfied in accordance with this paragraph. The operator of an AFO shall maintain such documentation on site and make it available upon request by any representative of the commission. (C) The buffer distance shall be measured from the nearest edge of the permanent odor sources to the nearest edge of any occupied residence or business structure, school (including associated recreational areas), permanent structure containing a place of worship, or public park. (D) Written consent, including a letter as defined by §321.32(26) of this title, easement, or lease agreement specifically consenting to location and operation of permanent odor sources at an AFO within the required minimum buffer distance in this paragraph from the owner of the land containing each occupied residence or business structure, school (including associated recreational areas), permanent structure containing a place of worship, or public park located within the buffer distance may be obtained in lieu of satisfying the buffer distance requirements in this paragraph. Written consent from the governmental entity responsible for operating a school or public park, if the governmental entity is not the owner of the land containing the receptor, is required in addition to the consent of the owner of the land containing the receptor. An easement must be recorded with the county. The written consent must include the following information at the time the actions specified in this paragraph occur: (i) the name, physical address, mailing address, and phone number of the owner(s) of the land containing the receptor and of the governmental entity responsible for the operation of the receptor, if applicable; (ii) the types of animals and maximum number of animals to be confined under the AFO operator's current and/or anticipated authorization; (iii) a description of the activity within the buffer distance for which the owner of the land containing the receptor and the governmental entity responsible for the operation of the receptor, if applicable, is giving consent; (iv) the description and location of permanent odor sources located or proposed to be located within the buffer distance; (v) an acknowledgment by the owner of the land containing the receptor located within the buffer distance, and by the governmental entity responsible for the operation of the receptor, if applicable, that the consent for the owner of the land containing the AFO to locate and operate permanent odor sources within the buffer distance excuses the operator of the AFO from otherwise applicable legal requirements; and (vi) the verified signature of the owner(s) of the land containing the receptor, and of the governmental entity responsible for the operation of the receptor, if applicable, who is consenting to the location or operation of the AFO within the buffer distance. (E) An area land use map as defined by §321.32(5) of this title, an odor control plan, if required by this paragraph, and documentation and copies of the written consent required in subparagraph (D) of this paragraph shall be kept on site and made available upon request by the executive director. (F) The odor control plan, if required by this paragraph, shall be developed and implemented to control and reduce odors, dust, and other air contaminants, as defined by §321.32(2) of this title, from the AFO. The plan shall identify all structural and management practices that the operator will employ to minimize odor and control air contaminants at the AFO. At a minimum, the plan shall include, where applicable, procedures for manure/litter collection, manure, litter, and wastewater storage and treatment, land application, dead animal handling, and dust control. If the executive director determines that the implementation and employment of these practices is not effective in controlling dust, odors, and other air contaminants, the operator shall include any necessary additional abatement measures in the odor control plan and implement those measures to control and reduce these contaminants within the time period specified by the executive director. (3) Wastewater treatment. Operators of AFOs that produce process-generated wastewater (excluding water trough overflow in open lots and wastewater from boiler operations) shall design and operate RCSs to minimize odors in accordance with accepted engineering practices. Each system shall be operated in accordance with the design and an operation and maintenance plan that minimizes odors. (A) Accepted engineering practices to minimize odors include anaerobic treatment lagoons, aerobic treatment lagoons, or other equivalent technology. The retention control structures shall also meet the design criteria specified for water quality in this subchapter. (B) Accepted design standards and requirements for each of these methods of treatment are: (i) an anaerobic treatment lagoon shall be designed in accordance with American National Standards Institute/American Society of Agricultural Engineers EP403.3 July 1999 (or subsequent updates); Natural Resources Conservation Service (NRCS), Field Office Technical Guidance, Practice Standard 359, Waste Treatment Lagoon, or the equivalent for the control of odors. The primary lagoon in a multi-stage lagoon system shall be designed with a minimum treatment volume so that the lagoon maintains a constant level at all times unless prohibited by climatic conditions. A multi-stage lagoon system shall be designed to minimize the amount of contaminated storm water runoff entering the primary lagoon by routing the contaminated storm water runoff into a secondary RCS; (ii) aerobic treatment lagoons shall be designed in accordance with NRCS, Field Office Technical Guidance, Practice Standard 359, Waste Treatment Lagoon; or technical requirements for sizing the aeration portion of the system located in Chapter 317 of this title (relating to Design Criteria for Sewerage Systems); and (iii) equivalent technology or design standards shall indicate how the design of the AFO minimizes odors equivalent to an aerobic or anaerobic lagoon. These designs shall be developed and certified by a licensed Texas professional engineer. An "as-built" certification in letter form shall be completed by a licensed Texas professional engineer before operation of the AFO. These documents shall be maintained on site and made available within the time period specified by the executive director. (4) Dust control. To minimize dust emissions, the AFO shall be operated and maintained as follows. (A) Fugitive emissions from all grain receiving pits, where a pit is used, shall be minimized through the use of "choke feeding" or through an equivalent method of control. If choke feeding is used, operation of conveyors associated with receiving shall not commence until the receiving pits are full. (B) As necessary, emissions from all in-plant roads, truck loading and unloading areas, parking areas, and other traffic areas shall be controlled with one or more of the following methods to minimize nuisance conditions and maintain compliance with all applicable commission requirements: (i) sprinkled with water; (ii) treated with effective dust suppressant(s); or (iii) paved with a cohesive hard surface and cleaned. (C) All non-vehicular external conveyors or other external conveying systems associated with the feedmill shall be enclosed. (D) On-site feed milling operations with processing equipment using a pneumatic conveying system (which may include, but are not limited to, pellet mill/pellet cooler systems, flaker systems, grinders, and roller-mills) shall vent the exhaust air through a properly-sized high efficiency cyclone collector or an equivalent control device before releasing the exhaust air to the atmosphere. This requirement does not include cyclones used as product separators. (E) If the executive director determines that the implementation and employment of these practices is not effective in controlling dust, the operator shall implement any necessary additional abatement measures to control and minimize this contaminant within the time period specified by the executive director. (5) Maintenance and housekeeping. The AFO operator shall comply with the following to help prevent nuisance conditions. (A) The premises shall be maintained to prevent the occurrence of nuisance conditions from odors and dust. Spillage of any raw products or waste products causing a nuisance condition shall be picked up and properly disposed of daily. (B) Proper pen drainage shall be maintained at all times. Earthen pen areas shall be maintained by scraping uncompacted manure and shaping pen surfaces as necessary to minimize odors and ponding.</content><note type="source"><p>Source Note: The provisions of this §321.43 adopted to be effective July 9, 1990, 15 TexReg 3639; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective March 15, 2007, 32 TexReg 1325.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.44"><num value="321.44">§321.44</num><heading>Concentrated Animal Feeding Operation (CAFO) Notification Requirements</heading><content>(a) Discharge notification. If for any reason there is a discharge to water in the state, the concentrated animal feeding operation (CAFO) operator shall notify the appropriate regional office orally within 24 hours of becoming aware of the discharge or by the next business day and in writing within 14 business days of the discharge from the retention control structure or any component of the manure handling or land application system to the Office of Compliance and Enforcement, Enforcement Division. In addition, the operator shall document the following information, keep the information on site, and submit the information to the appropriate regional office within 14 business days of becoming aware of such discharge. The notification must include: (1) a description and cause of the discharge, including a description of the flow path to the receiving water body; (2) an estimation of the volume discharged; (3) the period of discharge, including exact dates and times, and, if not corrected, the anticipated time the discharge is expected to continue, and steps being taken to reduce, eliminate, and prevent recurrence of the discharge; (4) if caused by a precipitation event(s), the date(s) of the event(s) and the rainfall amount(s) recorded from the on-site rain gauge; (5) results of analysis as required by subsection (b) of this section; and (6) any upset which exceeds any effluent limitation in the permit or authorization. (b) Discharge monitoring. A permit or authorization will establish requirements for sample collection and analysis, sample type and frequency, and the parameters to be monitored. (1) The effluent shall be analyzed by a National Environmental Laboratory Accreditation Conference accredited lab for the following parameters: (A) Escherichia coli; (B) five-day biochemical oxygen demand (BOD 5); (C) total suspended solids (TSS); (D) Ammonia Nitrogen (as N); (E) Nitrate (as N); (F) total dissolved solids (TDS); (G) total phosphorus (as P); and (H) any pesticide which the operator has reason to believe could be in the discharge. (2) If the operator is unable to collect samples due to climatic conditions that create dangerous conditions for personnel (such as local flooding, high winds, hurricanes, tornadoes, electrical storms, etc.), the operator shall document why discharge samples could not be collected. Once dangerous conditions have passed, the operator shall conduct the required sampling and analyses. (3) In the event that a discharge occurs outside of the normal business hours of the testing laboratory, which causes the maximum hold time to lapse, the operator shall collect a secondary sample from the retention control structure, and have it analyzed on the first business day for each parameter where the maximum hold time is exceeded. (c) Construction notification. After all initial construction activity has been completed, and before beginning operations, an operator of a new CAFO must notify the appropriate regional office orally that the facility is commencing operations.</content><note type="source"><p>Source Note: The provisions of this §321.44 adopted to be effective July 9, 1990, 15 TexReg 3639; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective July 31, 2014, 39 TexReg 5786.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.45"><num value="321.45">§321.45</num><heading>Concentrated Animal Feeding Operation (CAFO) Training Requirements</heading><content>(a) Employee training. A permit or authorization will establish requirements for training of employees who are responsible for work activities relating to compliance with provisions of this subchapter that address all levels of job responsibility associated with compliance with this subchapter.(b) Dairy outreach program area operator training. The operator of a dairy concentrated animal feeding operation (CAFO) located in §321.32(17) of this title (relating to Definitions) shall attend and complete training developed by the executive director and the Texas Cooperative Extension as follows:(1) an eight-hour course or its equivalent on animal waste management within 12 months of receiving initial authorization under this subchapter; and(2) at least eight additional hours of continuing education on animal waste management or its equivalent for each two-year period after completing the requirements of paragraph (1) of this subsection.</content><note type="source"><p>Source Note: The provisions of this §321.45 adopted to be effective July 9, 1990, 15 TexReg 3639; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 15, 2004, 29 TexReg 6652.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.46"><num value="321.46">§321.46</num><heading>Concentrated Animal Feeding Operation (CAFO) Pollution Prevention Plan, Site Evaluation, Recordkeeping, and Reporting</heading><content>(a) Pollution prevention plan (PPP).(1) A permit or authorization will establish requirements for the development of a PPP. PPPs shall be prepared in accordance with good engineering practices and shall include measures necessary to limit the discharge of pollutants to or adjacent to water in the state. The plan shall describe and ensure the implementation of practices which are to be used to assure compliance with the limitations and conditions of this subchapter. The plan shall identify a specific individual(s) at the facility who is responsible for development, implementation, operation, maintenance, inspections, recordkeeping, and revision of the PPP. The activities and responsibilities of the pollution prevention personnel shall address all aspects of the facility's PPP.(2) The plan shall be signed by the operator or other signatory authority in accordance with §305.44 of this title (relating to Signatories to Applications), and the plan shall be retained on site.(3) Upon completion of a PPP review, the executive director may notify the operator of a concentrated animal feeding operation (CAFO) at any time that the plan does not meet one or more of the minimum requirements of this subchapter. After such notification from the executive director, the operator shall make changes to the plan within 90 days after such notification, unless otherwise provided by the executive director.(4) The operator of the CAFO shall revise the plan:(A) before any change in the acreage or boundaries of land management units (LMUs);(B) before any increase in the maximum number of animals;(C) before operation of any new control facilities;(D) before any change which has a significant effect on the potential for the discharge of pollutants to water in the state;(E) if the PPP is not effective in achieving the general objectives of controlling discharges of pollutants from the production area or LMU(s); or(F) within 90 days following written notification from the executive director that the plan does not meet one or more of the minimum requirements of this section.(5) Where design, planning, construction, operation and maintenance, or other documentation equivalent to PPP requirements are contained in site specific-plans prepared and certified by the Natural Resources Conservation Service (NRCS), Texas State Soil and Water Conservation Board, or their designee, that information may be used to document best management practices (BMPs) or applicable portions of the technical requirements in this subchapter. Where provisions in the certified plan are substituted for applicable BMPs or portions of the PPP, the PPP must refer to the appropriate section of the certified plan. If the PPP contains a reference to a certified plan, a copy of the certified plan must be kept with the PPP.(6) Potential pollutant sources include any activity or material of sufficient quantity that may reasonably be expected to add pollutants to surface water in the state from the facility. The owner shall conduct a thorough site inspection of the facility to identify all potential pollutant sources. The inspection shall include all land that is part of the production area and LMUs. An evaluation of pollutant sources shall identify the types of potential pollutant sources, provide a description of the pollutant sources, and indicate all measures that will be used to prevent contamination from the pollutant sources.(7) The operator shall maintain and update the following items as part of the PPP:(A) a site map, showing the production area and include, at a minimum, pens and open lots, barns, berms, permanent manure storage areas, composting areas, control facilities including retention control structures (RCSs), water wells (abandoned and in use), surface water in the state, and dead animal burial sites; including a depiction of buffer zones and setbacks;(B) LMU Map, showing the boundary and acreage of each LMU; all buffer zones, the location of the production area, water wells (abandoned and in use) that are onsite or within 500 feet of the facility boundary, all surface water in the state located onsite and within one mile of the facility boundary, and the facility boundary.(C) soil, crop, and crop nutrient information;(D) a description of land application procedures and equipment used; and(E) a description of BMPs utilized to minimize the entry of uncontaminated runoff into the control facility and RCS.(b) Management documentation. A permit or authorization will establish additional requirements for recordkeeping and documentation. At a minimum, these records must include:(1) a copy of the administratively complete and technically complete individual water quality permit application, notice of intent seeking authorization under a CAFO general permit, and the written authorization issued by the commission or executive director, for any facility required to obtain written authorization;(2) the RCS management plan, if applicable;(3) procedures for spill prevention and recovery;(4) a copy of the recharge feature certification, if applicable;(5) the groundwater monitoring plan associated with the use of a playa;(6) a copy of the comprehensive nutrient management plan, nutrient management plan or nutrient utilization plan, if required;(7) site-specific documentation that no significant hydrologic connection exists between the contained wastewater and water in the state;(8) any written agreement with a landowner which documents the allowance of nighttime application of manure, sludge, or wastewater;(9) the odor control plan requirements established in §321.43 of this title (relating to Air Standard Permit for Animal Feeding Operations (AFOs)); and(10) documentation of employee training, including dates when training occurred and, for dairy outreach program area (DOPA)-required training, verification of the date, time of attendance, and completion of training.(c) Required inspections. The CAFO operator shall perform the routine inspections described in this subsection to determine preventive maintenance and repair needs. Inspections shall include visual inspections and equipment testing to determine conditions that could cause breakdowns or failures resulting in discharge of pollutants to water in the state or the creation of a nuisance condition.(1) CAFO operators shall conduct a daily inspection of all water lines, including drinking water and cooling water lines that are located within the drainage area of the RCSs. These daily inspections shall be recorded in the PPP either daily or in the weekly report.(2) CAFO operators shall conduct a weekly inspection of all control facilities and equipment used during that week for land application of manure, sludge, or wastewater. An inspection must include all stormwater diversion devices, runoff diversion structures, and devices channeling contaminated stormwater to each RCS. The weekly inspection will note the level of liquid in each RCS as indicated by the pond marker.(3) CAFO operators shall conduct monthly inspections on mortality management systems, including containers, burial sites, composting facilities, incinerators, and chemical storage and disposal areas.(4) A complete site inspection of the CAFO and LMUs shall be conducted and documentation of the findings of the inspection made at least once per year. The inspection shall include:(A) a review of the list of potential pollutant sources to ensure it is current;(B) the inspection of all controls and operations outlined in the PPP to reduce the potential for pollutants to be transported off the CAFO; and(C) updating the PPP to reflect the current conditions.(5) Once every five years, beginning five years after initial authorization under this subchapter, any CAFO operator who uses an RCS shall have a licensed Texas professional engineer review the existing engineering documentation, complete a site evaluation of the structural controls, and review existing liner documentation. The engineer shall complete and certify a report of their findings that must be kept with the PPP.(d) Recordkeeping requirements. The CAFO operator shall keep records in the PPP for a minimum of five years from the date the record was created. Upon written request, any of the records maintained to comply with the permit shall be submitted to the executive director within five business days of the operator receiving the request. The records shall document the inspections and actions taken in response to deficiencies identified during any inspection. A CAFO operator shall correct all the deficiencies within 30 days or shall document the factors preventing immediate correction and submit to the executive director an explanation of the factors that prevented the correction of the deficiencies. Any CAFO operator that does not use an RCS is not subject to paragraphs (3) - (6) and (8) of this subsection. The following records must be included unless otherwise specified:(1) a list of any significant spills of potential pollutants at the CAFO that have a significant potential to reach water in the state;(2) a log of wastewater, manure, and sludge removed from the CAFO, other than single pickup truck loads, that shows the dates and times of removal from the CAFO, name and address of the recipient, amount (in wet tons, dry tons, cubic yards, acre-inches, acre-feet, or gallons) of manure, sludge, or wastewater;(3) a log of all daily measurable rainfall events, including the measured rainfall;(4) a log of all weekly wastewater levels observed in the RCS, or daily wastewater levels in a major sole-source impairment zone;(5) documentation of liner maintenance by an NRCS engineer, licensed Texas professional engineer, or qualified groundwater scientist;(6) documentation describing the sources of information, assumptions, and calculations used in determining the appropriate volume capacity and structural features of each RCS, including embankments and liners;(7) groundwater monitoring records, if required by §321.41 of this title (relating to Special Requirements for Discharges to a Playa);(8) records that show the control facilities have been inspected for structural integrity and maintenance, the date of each inspection, and a description of the findings;(9) records describing mortality management practices;(10) a log of all manure, sludge, and wastewater used at the CAFO updated at least monthly. For CAFOs where manure, sludge, or wastewater is applied on LMUs, such records must include the following information:(A) date of manure, sludge, or wastewater application to each LMU;(B) location of the specific LMU and the volume applied during each application event;(C) acreage of each individual crop on which manure, sludge, or wastewater is applied;(D) basis for and the total amount of nitrogen and phosphorus applied per acre to each LMU, including sources of nutrients other than manure, sludge, or wastewater on a dry basis;(E) the percentage of moisture content of the manure;(F) actual annual yield of each harvested crop; and(G) weather conditions (such as the temperature, precipitation, and cloud cover) during the land application and 24 hours before and after the land application;(11) annual nutrient analysis for irrigation wastewater, sludge, if applicable, and manure;(12) documentation describing any discharge into water in the state including the date, time, volume of overflow, a copy of the notification(s) provided to the regional office, and sample analysis results associated with the discharge;(13) the results of initial and annual soil analysis reports as required by this subchapter; and(14) copies of all notifications to the executive director, including any made to a Texas Commission on Environmental Quality regional office, as required by this subchapter, a permit, or authorization.(e) Reporting requirements.(1) The CAFO operator shall furnish to the appropriate regional Texas Commission on Environmental Quality office and the commission's Office of Compliance and Enforcement, Enforcement Division in Austin, soil testing analysis of all soil samples with the annual report due February 15 of each year.(2) CAFO operators shall provide all other reports required by this subchapter to the Office of Compliance and Enforcement, Enforcement Division.</content><note type="source"><p>Source Note: The provisions of this §321.46 adopted to be effective July 9, 1990, 15 TexReg 3639; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 27, 1999, 24 TexReg 5721; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective July 31, 2014, 39 TexReg 5786.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.47"><num value="321.47">§321.47</num><heading>Requirements for Animal Feeding Operations (AFOs) Not Defined or Designated As Concentrated Animal Feeding Operations (CAFOs)</heading><content>(a) Purpose. This section provides an animal feeding operation (AFO) that is not defined or designated as a concentrated animal feeding operation (CAFO) authorization to operate, and identifies the operational requirements necessary to achieve the purposes of this subchapter.(b) Applicability.(1) Except as identified in paragraph (2) of this subsection, the owner or operator of an AFO not defined or designated as a CAFO who uses a control facility to manage manure, sludge, or wastewater generated on site shall comply with all the requirements of this section.(2) The owner or operator of an AFO not defined or designated as a CAFO who qualifies for, obtains, and is operating under a certified water quality management plan from the Texas State Soil and Water Conservation Board (TSSWCB) and subsection (c)(1) - (4) of this section are considered to meet all technical requirements of this section.(3) The owner of an AFO not defined or designated as a CAFO who uses an alternative treatment practice, such as filter strips (Natural Resources Conservation Service (NRCS) Code 393), constructed wetlands (NRCS Code 656), or vegetated treatment areas (NRCS Code 635), instead of a control facility to manage manure, sludge, or wastewater generated on site shall comply with all the requirements of this section except the requirements mentioned in subsection (d) and (e) of this section.(c) General requirements.(1) An AFO operator must locate, construct, and manage the control facility, alternative treatment practice, and land management unit (LMU) in a manner that will protect surface and groundwater quality.(2) An AFO operator must prevent nuisance conditions and minimize odor conditions in accordance with the requirements of §321.31(b) of this title (relating to Manure, Litter, and Wastewater Discharge and Air Emission Limitations).(3) Proper pen drainage shall be maintained at all times. Earthen pen areas shall be maintained to ensure good drainage by scraping uncompacted manure and shaping pen surfaces as necessary to minimize odors and ponding.(4) An AFO shall not expand operations, either in size or numbers of animals, before amending or enlarging the manure handling procedures and structures to accommodate all additional manure that will be generated by the expanded operations.(5) As applicable to the operation, the production area of a new or expanding AFO must comply with the requirements of §321.41 of this title (relating to Special Requirements for Discharges to a Playa).(6) All control facilities, alternative treatment practices, holding pens, and retention control structures (RCSs) must be located outside of the 100-year flood plain unless the structures are protected from inundation and damage that may occur during the 100-year flood event.(7) Where applicable, equivalent measures contained in a site-specific plan which meet the requirements of this subchapter may be substituted for applicable best management practices and/or portions of the technical requirements in this subchapter. Equivalent measures may be contained in:(A) United States Department of Agriculture (USDA) - NRCS Field Office Technical Guide for Texas; or(B) TSSWCB rules; or(C) a certified water quality management plan certified by the TSSWCB; or(D) a comprehensive nutrient management plan (CNMP) certified by the TSSWCB, the USDA - NRCS, or their designee.(8) The AFO operator shall adhere to the well buffer requirements in §321.38(b) of this title (relating to Control Facility Design Requirements Applicable to Concentrated Animal Feeding Operations (CAFOs)) and §321.40(g) of this title (relating to Concentrated Animal Feeding Operation (CAFO) Land Application Requirements).(d) Control facilities.(1) The AFO operator shall minimize entry of uncontaminated runoff into RCSs. Such measures may include the construction of berms, embankments, or similar structures.(2) The AFO may discharge from the production area if the discharge is the result of a chronic or catastrophic rainfall event, or catastrophic condition that exceeds the design capacity of an RCS that has been properly designed, constructed, operated, and maintained. RCSs shall be designed in accordance with §321.38 of this title.(3) The AFO operator constructing a new or modifying an existing RCS shall ensure that all construction and design is certified by a licensed Texas professional engineer. The certification shall be signed and sealed in accordance with the requirements of the Texas Board of Professional Engineers. All RCS design and construction shall, at a minimum, be in accordance with the technical standards developed by the NRCS, American Society of Agricultural and Biological Engineers, American Society of Civil Engineers, American Society of Testing Materials, or other technical standards approved by the executive director, that are in effect at the time of construction. Where site-specific variations are warranted, the operator must ensure a licensed Texas professional engineer documents these variations and their appropriateness to the plan.(4) Existing RCSs that have been properly maintained without any modifications and have no apparent structural problems or leakage will be considered to be properly designed and constructed with respect to the RCS sizing, embankment design and construction, and liner requirements of this subchapter, provided that any required documentation was completed in accordance with the requirements at the time of construction. If no documentation exists, the RCS must be certified by a licensed Texas professional engineer as providing protection equivalent to the requirements of this section. Structures built in accordance with site-specific NRCS plans and specifications will be considered to be in compliance with the design and capacity requirements of this subchapter if the site-specific conditions are the same as those used by the NRCS to develop the plan (numbers of animals, runoff area, manure generated, etc.) and the RCS is operated and maintained in accordance with NRCS requirements.(5) RCS embankments and liners shall be designed and constructed in accordance with the requirements of §321.38 of this title.(6) The AFO operator must maintain copies of documentation of the sources of information, assumptions, and calculations used in determining the appropriate volume capacity of the RCSs.(7) An irrigation system or other liquid manure removal system used by an AFO must be designed to ensure that the system is capable of dewatering the RCSs on a regular schedule. RCSs shall be equipped with irrigation, or wastewater removal systems capable of dewatering the RCSs whenever needed to restore the operating capacity. Dewatering equipment shall be maintained in proper working order.(8) Sludge shall be removed from RCSs to prevent the accumulation of sludge from encroaching on other required storage volumes.(e) Operation and maintenance.(1) Sufficient volume shall be maintained at all times within the RCS to accommodate sludge, wastewaters, and contaminated stormwater (rainwater runoff and direct precipitation) from the AFO facility.(2) The operator shall restore such capacity after each rainfall event or accumulation of manure, sludge, or process-generated wastewater that reduces such capacity, when conditions are favorable for irrigation. Favorable conditions shall be when the soil moisture level decreases so that irrigation will not cause runoff.(3) The normal operating wastewater level in the RCS shall be maintained within the design of the RCS. If the water level in the RCS encroaches into the storage volume reserved for the design rainfall event the operator must document the conditions that resulted in this occurrence. As soon as irrigation is not prohibited, the AFO operator shall irrigate until the water level is at or below the design rainfall level.(4) Adequate equipment shall be available and maintained in good working order to remove such manure, sludge, and wastewater from the RCS as required to maintain the required volume in compliance with this subchapter.(5) A rain gauge capable of measuring the design rainfall event shall be installed on site and properly maintained.(6) The AFO operator shall install and maintain a permanent pond marker in the RCS, visible from the top of the embankment that identifies, either physically or by onsite documentation, the volume required for the design rainfall event.(7) The AFO operator shall ensure that liners are protected from animals by fences or other protective devices. No tree shall be allowed to grow such that the root zone would intrude or compromise the structure of the liner or embankment. Any mechanical or structural damage to the liner shall be evaluated by a licensed Texas professional engineer within 30 days following discovery of the damage.(8) The AFO operator shall maintain ponds, pipes, ditches, pumps, and diversion and irrigation equipment to ensure ability to fully comply with the terms of this subchapter.(9) An AFO operator using a liquid manure handling system shall scrape or flush accumulated manure at least once per week or in accordance with proper design and maintenance of the facility.(10) If an RCS is in danger of imminent overflow from chronic or catastrophic rainfall or catastrophic conditions, the AFO operator shall take reasonable steps to irrigate wastewater to LMUs only to the extent necessary to prevent overflow from the RCS.(f) Land application.(1) The runoff of manure, sludge, or wastewater to water in the state as the result of the application of manure, sludge, or wastewater from an AFO is authorized provided the land application activity is implemented in accordance with a plan for nutrient management detailed in this section.(2) The AFO operator shall apply manure, sludge, and wastewater uniformly to suitable land at appropriate times and at agronomic rates. Timing and rate of applications shall be in response to crop needs, assuming usual nutrient losses, expected precipitation, and soil conditions.(3) The AFO operator shall develop and utilize the information in this paragraph for land application unless a nutrient management plan (NMP) is developed and implemented. At that time, the NMP must be followed for land application. The AFO operator must adhere to the following:(A) a site map showing the location of all LMUs;(B) the location, description, and limitations of the major soil types within the identified LMUs, and a plan to address the soil limitations;(C) crop types and rotations to be implemented on an annual basis;(D) predicted yield goals based on the major soil types within the identified LMUs;(E) procedures for calculating nutrient budgets to be used to determine application rates;(F) a detailed description of the type of equipment and method of application to be used in applying the manure, sludge or wastewater; and(G) projected rates and timing of application of the manure, sludge, and wastewater as well as other sources of nutrients that will be applied to the LMUs.(4) Discharge of manure, sludge, or wastewater from the LMU is prohibited and shall not cause or contribute to a violation of surface water quality standards, contaminate groundwater, or create a nuisance condition.(5) Application rates of manure, sludge, and wastewater shall not exceed the crop requirement of the crop or planned crop planting. Land application rates of manure sludge, and wastewater shall be based on the available nutrient content of the manure, sludge, and wastewater.(6) Land application shall not occur when the ground is frozen or saturated or during rainfall events, unless in accordance with §321.39(b)(3) of this title (relating to Operational Requirements Applicable to Concentrated Animal Feeding Operations (CAFOs)).(7) Irrigation practices shall be managed so as to minimize ponding or puddling of wastewater on the site, prevent discharge of tailwater to waters in the state, prevent pollution of waters in the state, and prevent the occurrence of nuisance conditions.(8) The land application of manure, sludge, and wastewater at agronomic rates shall not be considered surface disposal and is not prohibited.(9) Manure, sludge, or wastewater may be applied to the areas in the 100-year flood plain at agronomic rates not to exceed the hydrologic needs of the crop.(10) The AFO operator shall develop and maintain the calculations and assumptions used for determining land application rates and all nutrient analysis data.(11) The AFO operator shall annually analyze at least one representative sample of irrigation wastewater and sludge, if applicable, and one representative sample of manure for total nitrogen, total phosphorus, and total potassium.(12) Vegetative buffer strips shall be no less than 100 feet of vegetation to be maintained between manure, sludge, or wastewater application areas and surface water and watercourses. The AFO operator shall maintain the buffer strips in accordance with NRCS guidelines. A buffer is not required for wastewater irrigation when applied by low-pressure, low-profile center pivot irrigation systems in areas of the state where the annual average rainfall is less than 25 inches per year. Land application of manure, sludge, and wastewater into surface water in the state is an unauthorized discharge and is prohibited.(13) Manure and sludge storage capacity requirements based upon manure and sludge production, land availability, and NRCS or equivalent standards shall be provided.. Manure or sludge stored for more than 30 days must be stored within the drainage area of an RCS, or stored in a manner (i.e. storage shed, bermed area, tarp covered area, etc.) that otherwise prevents contaminated stormwater runoff from the storage area. Storage for more than 30 days is prohibited in the 100-year flood plain.(14) Temporary storage of manure and sludge shall not exceed 30 days and is allowed only in LMUs or an RCS drainage area. Temporary storage of manure or sludge in the 100-year flood plain, near water courses or recharge features is prohibited unless protected from inundation and damage that may occur during the 100-year flood event. Contaminated runoff from manure and sludge storage piles must be retained on site.(15) Any dairy AFO that is located in the major sole-source impairment zone, as defined under §321.32 of this title (relating to Definitions), at a minimum must provide for management and disposal of manure in accordance with §321.42(i) of this title (relating to Requirements Applicable to the Major Sole-Source Impairment Zone).(16) Nighttime application of liquid or solid manure shall be allowed only in areas with no occupied residence(s) within 1/4 mile from the outer boundary of the LMU receiving manure, sludge, or wastewater application. In areas with an occupied residence within 1/4 mile from the outer boundary of the LMU, application shall only be allowed from one hour after sunrise until one hour before sunset, unless the current occupants of such residences have, in writing, agreed to such nighttime applications.(17) AFOs introducing wastewater or chemicals to water wellheads for the purpose of irrigation shall install backflow prevention devices in accordance with requirements contained in 16 TAC Chapter 76 (relating to Water Well Drillers and Water Well Pump Installers).(18) Composting on site at an AFO shall be performed in accordance with Chapter 332 of this title (relating to Composting). AFOs may compost manure generated on site, including manure, sludge, bedding, feed, and dead animals. In accordance with Chapter 332 of this title, an AFO operator may add agricultural products to provide an additional carbon source or bulking agent to aid in the composting process. If the compost areas are not roofed or covered with impermeable material, protected from external rainfall, or bermed to protect from runoff in the case of the design rainfall event, the compost areas shall be located within the drainage of the RCS. The runoff volume from compost areas shall be accounted for in the design of the RCS.(19) Maintenance of animals.(A) Animals confined at the AFO shall be restricted from coming into direct contact with surface water in the state through the use of fences or other controls.(B) An AFO that maintains animals in pastures must maintain crops, vegetation, forage growth, or postharvest residues in the normal growing season, excluding the feed and water trough areas and designated open lots.(g) Sampling and testing.(1) Initial sampling. Before commencing application of manure, sludge, or wastewater on LMUs and before resuming land application on LMUs. Where manure, sludge, or wastewater was not applied during the preceding year, the operator shall:(A) collect and analyze at least one representative sample of manure, sludge (if applicable) and wastewater for total nitrogen, total phosphorus, and total potassium;(B) collect and analyze at least one representative soil sample from each LMU according to the procedures in paragraphs (4) and (5) of this subsection; and(C) Utilize the results of these analyses in determining application rates for manure, sludge, and wastewater.(2) Annual sampling. The operator shall:(A) collect and analyze at least one representative sample of manure, sludge (if applicable), and wastewater, for total nitrogen, total phosphorus, and total potassium;(B) collect and analyze at least one representative soil sample from each LMU where manure, sludge, or wastewater was applied during the preceding year according to the procedures in paragraphs (4) and (5) of this subsection; and(C) utilize the results of these analyses in determining application rates for manure, sludge, and wastewater.(3) The operator shall make the most recent nutrient analysis available to any recipient of manure, sludge, or wastewater.(4) Sampling procedures. The operator shall employ sampling procedures using accepted techniques of soil science for obtaining representative samples and analytical results.(A) Samples shall be collected using approved methods described in the agency's guidance RG-408 entitled "Soil Sampling for Concentrated Animal Feeding Operations."(B) Samples shall be collected by the operator or its designee and analyzed by a soil testing laboratory annually.(C) Obtain one composite sample for each LMU and per uniform soil type (soils with the same characteristics and texture) within the LMU.(D) Composite samples shall be comprised of ten to 15 randomly sampled cores at a depth of zero to six inches.(5) Laboratory analysis. The operator shall have a laboratory analysis of the soil samples performed for physical and chemical parameters to include: nitrate reported as nitrogen in parts per million (ppm); phosphorus (extractable, ppm, using Mehlich III extractant with Inductively Coupled Plasma (ICP) analysis); potassium (extractable, ppm); sodium (extractable, ppm); magnesium (extractable, ppm); calcium (extractable, ppm); soluble salts (ppm) or electrical conductivity (deciSiemens/meter (dS/m) or millimhos/cm (mmhos/cm) determined from extract of 2:1 volume to volume (v/v) water/soil mixture); and soil water pH (soil:water, 1:2 ratio).(6) Soil samples shall be submitted to a soil testing laboratory along with a previous crop history of the site, intended crop use, and yield goal. Soil test reports shall include nutrient recommendations for the crop yield goal.(h) Nutrient utilization plans (NUPs).(1) Manure, sludge, or wastewater shall not be land applied to a LMU, unless the land application is implemented in accordance with a detailed NUP when results of the annual soil analysis for extractable phosphorus indicate:(A) a level greater than 200 ppm; or(B) a level greater than 350 ppm for an LMU where the average annual rainfall is 25 inches or less, erosion control is adequate to keep erosion at the soil loss tolerance (T) or less, and the closest edge of the field is more than one mile from a named stream; or(C) if ordered by the commission to do so in order to protect water in the state.(2) An NMP, based on crop removal, certified in accordance with NRCS Practice Standard Code 590 complies with the requirements of a complete and effective NUP.(3) A NUP, based on crop removal, shall be developed by an employee of the NRCS, a nutrient management specialist certified by the NRCS, the TSSWCB, Texas AgriLife Extension Service, an agronomist or soil scientist on full-time staff at an accredited university located in the State of Texas, or a professional agronomist or soil scientist certified by the American Registry of Certified Professionals in Agronomy, Crops and Soils, after approval by the executive director based on a determination by the executive director that another person or entity identified in this paragraph cannot develop the plan in a timely manner. No land application under an approved NUP shall cause or contribute to a violation of water quality standards or create a nuisance.(4) Land application under the terms of the NUP may begin as soon as the plan is developed in accordance with this subsection. After a NUP has been implemented, the operator shall land apply in accordance with the NUP until soil phosphorus is reduced below 200 ppm. Thereafter, the AFO operator shall apply manure, litter, or wastewater at agronomic rates according to the requirements of this section.(i) Recordkeeping requirements.(1) Records required under this subsection must be kept on site for a minimum of five years from the date the record was created. Any AFO operator that does not use an RCS is not subject to subparagraphs (B) - (D) and (F). Unless otherwise specified, records shall include:(A) a list of any significant spills of pollutants with the potential to reach water in the state;(B) a schedule for liquid manure removal;(C) a date log indicating weekly inspection of wastewater level in the RCS;(D) a log of all measurable rainfall events;(E) a copy of the results of initial and annual soils, manure, sludge, and wastewater analyses;(F) records of dates of inspection of the RCS, and a log of the findings of such inspections;(G) the groundwater monitoring plan associated with the use of a playa;(H) site-specific documentation that no significant hydrologic connection exists between the wastewater in the RCS and water in the state;(I) any written agreement with a landowner which documents the allowance of nighttime application of manure, sludge, or wastewater; and(J) a copy of the NUP, if required.(2) For facilities where manure, sludge, or wastewater is applied on LMUs, such records shall include the following information:(A) the date of manure, sludge, or wastewater application to each field;(B) the location of the specific LMU and volume or amount applied during each application event;(C) the acreage of each individual crop on which manure, sludge, or wastewater is applied;(D) the assumptions for calculating the total amount of nitrogen and phosphorus applied per acre to each field, including sources of nutrients other than manure, sludge, and wastewater on a dry basis;(E) the percentage of moisture content of the manure and sludge; and(F) the actual annual yield of each harvested crop.(3) Where manure, sludge, or wastewater, if applicable, is sold or given to other persons for off-site land application or disposal, the operator must maintain a log of: the date of removal from the AFO; the name and address of the recipient; and the amount, in wet tons, dry tons, or cubic yards, of manure or gallons of wastewater removed from the AFO. (A single pickup load need not be recorded.)(j) Documentation of liner maintenance. The operator shall have an NRCS engineer, licensed Texas professional engineer, or licensed Texas professional geoscientist review the documentation and conduct a site evaluation every five years.(k) Groundwater monitoring. In the event that groundwater monitoring is required by §321.41 of this title or required by the executive director, the operator shall annually collect a groundwater sample from each well that provides water for the facility. Each sample shall be analyzed for nitrate as nitrogen and chloride where groundwater monitoring is required by §321.41 of this title and analyzed for nitrate as nitrogen, chloride, and total dissolved solids where groundwater monitoring is required by the executive director. The operator shall use the methods outlined in the groundwater monitoring plan, and compare the analytical results to the baseline data. Data from any required monitoring wells must be submitted to the executive director and kept on site for five years. The first year's sampling shall be considered the baseline data and must be retained on site for the life of the facility, unless otherwise provided by the executive director. If a 10% deviation in concentration of any of the sampled constituents is found, the operator must notify the executive director within 30 days of receiving the analytical results.(l) Inspections. The AFO operator must conduct the following inspections to assure the facility maintains its efficiency. Records of inspections shall be maintained for a period of five years.(1) Preventative maintenance program. The operator shall conduct weekly inspections of the control facility and land application equipment to determine preventative maintenance or repair needs. Operators that do not use an RCS are required to conduct inspections for applicable portions of their operation as required by this section. Material handling areas shall be inspected for evidence of, or the potential for, pollutants entering the drainage system or the creation of a nuisance. Inspections shall include visual inspections and equipment testing to uncover conditions that could cause breakdowns or failures resulting in discharge of pollutants to water in the state or the creation of a nuisance condition.(2) Site inspection. A complete inspection of the control facility and LMUs shall be done and a report documenting the findings of the inspection made at least once a year. The inspection shall be conducted by the operator to verify that the description of potential pollutant sources is accurate, and the controls necessary to reduce pollutants and avoid nuisance conditions are being implemented and are adequate. Records documenting significant observations made during the site inspection shall be retained.(m) Notification. An existing or new AFO operator has the continuing obligation to provide the executive director notice of the number of animals in confinement in accordance with the following requirements.(1) All new AFOs which confine a number of animals that fall within the range of the number of animals specified in any of the categories under §321.32(13)(B) of this title shall notify the executive director of their legal entity name, physical location including a map or hand drawn sketch, mailing address, and number of head in confinement.(2) Such notification shall be in writing and signed by the operator and shall be submitted not later than 180 days after commencement of operation.(n) Closure required. The AFO operator shall properly close the AFO and RCS in accordance with a closure plan prepared by a licensed Texas professional engineer. The AFO and RCS must be closed within one year of permanently ceasing operations at the facility or an alternate schedule determined by a licensed Texas professional engineer. The closure plan for the RCS must be developed using standards contained in the NRCS Practice Standard Code 360 (Closures of Waste Impoundments, as updated) and using the guidelines contained in the Texas AgriLife Extension Service/NRCS publication #B-6122 (Closure of Lagoons and Earthen Manure Storage Structures, as updated). The RCS or AFO is considered to be properly closed upon certification by a licensed Texas professional engineer that closure is complete according to the closure plan. AFOs shall maintain compliance with the requirements of this subchapter until the facility has been properly closed.</content><note type="source"><p>Source Note: The provisions of this §321.47 adopted to be effective July 27, 1999, 24 TexReg 5721; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective July 31, 2014, 39 TexReg 5786.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.48"><num value="321.48">§321.48</num><heading>Land Application of Dairy Waste</heading><content>(a) Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:(1) Dairy Operation--An Animal Feeding Operation (AFO) confining cattle that have been or may be used for production of milk, or otherwise associated with a dairy, including cows, calves, and bulls.(2) Dairy Waste--Milk, milk by-products, or milk processing waste that is spilled, spoiled, adulterated, unmarketable, stranded, or otherwise unfit for human consumption produced by a dairy operation. For the purposes of this rule, dairy waste does not include solid or semi-solid milk products.(3) Emergency Conditions--Instances where dairy waste is generated at any point along the dairy supply chain due to a reasonably unforeseeable situation, including but not limited to:(A) fire, flood, earthquake, hurricane, tornado, or wind, rain, ice, or snowstorm;(B) power failure, transportation failure, mechanical failure, or interruption of communication facilities;(C) epidemic;(D) riot, civil disturbance, enemy attack, or other actual or threatened act of lawlessness or violence; or(E) any other situation deemed by the executive director to qualify as an emergency. (b) Duration of Authorization. Authorization to land apply dairy waste on LMUs expires seven (7) calendar days after the emergency condition ends, unless an alternative duration for the authorization is granted by the executive director. (c) Purpose. This section provides authorization to a dairy operation to directly land apply dairy waste, including dairy waste received from a third-party, under emergency conditions to land that is under the control of a permitted CAFO or unpermitted AFO. (d) Applicability. This section applies to the owner or operator of a dairy operation that generates or accepts third-party dairy waste that is land applied under emergency conditions.(e) General Requirements. The following requirements apply to land application of dairy waste:(1) Land application of dairy waste must comply with the requirements of §321.40 of this title (relating to Concentrated Animal Feeding Operation (CAFO) Land Application Requirements) for a CAFO or §§321.47(f), (h), and (i) of this title (relating to Land Application, Nutrient Utilization Plans, and Recordkeeping Requirements, respectively) for an AFO.(2) Discharge of dairy waste into water in the state from a land management unit (LMU) is prohibited. (3) Land application practices shall be maintained to minimize ponding or puddling of the dairy waste on the site and prevent the occurrence of nuisance conditions.(4) Land application of dairy waste shall not occur when the ground is frozen or saturated or during rainfall events.(5) Dairy waste shall not be land applied within the well buffers identified in §321.38(b) of this title (relating to Control Facility Design Requirements Applicable to Concentrated Animal Feeding Operations (CAFOs)).(6) Land application of dairy waste shall not occur within 100 feet of any surface water in the state.(7) Land application of dairy waste shall not occur within a vegetative buffer strip required by §321.40(h) of this title.(8) Dairy waste shall not be land applied within the 100-year floodplain.(9) Dairy waste shall not be land applied to soils with shallow, perched or seasonal water tables.(10) Dairy waste may only be applied to fields that are vegetated with actively growing crops, hay or vegetation, or if to a fallow field, the dairy waste shall be incorporated into the soils within 48 hours of land application.(11) Dairy waste application shall be limited to a maximum of 2,000 gallons per acre per year.(12) Dairy waste shall be applied evenly to the soils.(13) Dairy waste shall not be land applied within 750 feet from an occupied residence or business structure, school (including associated recreational areas), permanent structure containing a place of worship, or public park.(14) There shall be no land application of dairy waste to an LMU if the LMU is required to have a Nutrient Utilization Plan (NUP) per §321.40(k)(3) of this title.(15) There shall be no land application of dairy waste to an LMU that has or reaches a critical soil test phosphorus (P) level of greater than or equal to 500 ppm, with a P – Index rating of "High" or "Very High".(f) Notification Requirements. The dairy operator shall notify the appropriate TCEQ Regional Office orally within 24 hours of land application of dairy waste or by the next business day, and in writing within 14 days of the land application of the dairy waste. Written notification may be on paper, electronic mail, or other electronic method as prescribed by the executive director. The notification shall include the following information:(1) the location of the land where the dairy waste was land applied, including the address of the area, latitude and longitude, or a site map;(2) the applicable emergency condition;(3) the date that dairy waste was land applied;(4) the volume (gallons, or acre-feet) of dairy waste land applied;(5) proof of authorization of the use of the field for land application of dairy waste if third-party land was used;(6) the duration of the emergency condition and if additional time will be needed to complete the land application; and (7) a certification signed by the dairy operator that the requirements of this subchapter were complied with during the land application of dairy waste.(g) Recordkeeping Requirements. A dairy owner or operator that land applies dairy waste shall include the following information in the Pollution Prevention Plan (PPP) required in §321.46(d) of this title:(1) a log of all dairy waste land applied at the AFO or CAFO updated at least monthly. Such records must include the following information:(A) date of dairy waste application to each LMU;(B) location of the specific LMU and the volume (gallon, or acre-feet) applied during each application event; (C) acreage of each individual crop on which dairy waste is applied; and(D) weather conditions (such as the temperature, precipitation, and cloud cover) during the land application and 24 hours before and after the land application;(2) documentation describing any discharge of dairy waste into water in the state including the date, time, volume of overflow (gallons, or acre-feet), a copy of the notification(s) provided to the regional office, and sample analysis results associated with the discharge; and(3) copies of all notifications to the executive director, including any made to a Texas Commission on Environmental Quality regional office, as required by this subchapter, a permit, or authorization. (h) Discharge Notification. Discharge notification requirements in §§321.44(a)(1) through (6) of this title shall apply to the discharge of dairy waste.(i) Discharge Monitoring. The dairy operator shall sample all discharges of dairy waste to surface water in the state and comply with the discharge monitoring in §321.44(b) of this title.(j) Annual Reporting. The dairy operator land applying dairy waste shall include the information required by §321.48(g) in the annual report as indicated in §321.36(g) of this title. Dairy operators that are not authorized by permit, and therefore not required to submit an annual report, must mail the following information to the appropriate TCEQ Regional Office that is servicing the area where the dairy operation is located by March 31 of each year:(1) estimated total volume of dairy waste (in gallons) generated during the reporting period; and(2) total volume of dairy waste (gallons, or acre-feet) land applied during the reporting period.</content><note type="source"><p>Source Note: The provisions of this §321.48 adopted to be effective July 31, 2025, 50 TexReg 4937.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scB/s321.49"><num value="321.49">§321.49</num><heading>Storage of Dairy Waste in a Retention Control Structure or Playa at an Animal Feeding Operation</heading><content>(a) Purpose. This section provides authorization to a dairy operation to store dairy waste during emergency conditions in a retention control structure (RCS) or playa and subsequently land apply the dairy waste for beneficial use.(b) Applicability. This section applies to an owner or operator of a dairy operation that stores dairy waste in an RCS or playa that meets the requirements of §321.41 of this title (relating to Special Requirements for Discharges to a Playa).(c) Duration of Authorization. Authorization to store dairy waste in a retention control structure(s) expires seven (7) calendar days after the emergency condition ends, unless an alternative duration for the authorization is granted by the executive director.(d) Discharge Restrictions.(1) There shall be no discharge or disposal of dairy waste from a dairy operation into or adjacent to water in the state, except in accordance with this section. Dairy waste generated by a dairy operation under this subchapter shall be retained and utilized in an appropriate and beneficial manner as provided by this section.(2) The storage of dairy waste in an RCS is subject to the effluent limitations in 30 TAC §321.37 and the RCS design requirements in 30 TAC §321.38 and 30 TAC §321.42(c) of this title (relating to Effluent Limitations for Concentrated Animal Feeding Operation (CAFO) Production Areas, Control Facility Design Requirements Applicable to Concentrated Animal Feeding Operations, and Requirements Applicable to the Major Sole-Source Impairment Zone to maintain a margin of safety in the RCS).(e) Recordkeeping Requirements. A dairy owner or operator that stores dairy waste in an RCS under emergency conditions shall include a log of all dairy waste received and stored at the AFO or CAFO, updated at least monthly, in the Pollution Prevention Plan (PPP) required in §321.46(d) of this title.(f) General Requirements.(1) Storage of dairy waste in a playa shall comply with §321.41 of this title.(2) A dairy operation using an RCS for storage of dairy waste shall ensure that the required capacity in the RCS is available to contain rainfall and rainfall runoff from the design rainfall event, and the margin of safety for CAFOs located in a major sole-source impairment zone.(3) The operator shall not store dairy waste in an RCS that is in danger of imminent overflow from chronic or catastrophic rainfall or catastrophic conditions.(4) The dairy operator shall notify the appropriate TCEQ Regional Office orally within 24 hours, or by the next business day, of storing dairy waste in an RCS. The following information shall be provided during the oral notification:(A) the dairy's authorization status: if the dairy is permitted or not permitted and, if permitted, the permit number;(B) the name and address of the owner and/or operator;(C) the name and location of the dairy;(D) the site-specific emergency condition(s); and(E) the duration of the emergency conditions and if additional time will be needed to manage dairy waste either by land application, placement in an RCS, or transfer to another dairy.(5) Written notification. The dairy operator shall provide written notification to the appropriate TCEQ Regional Office within 14 days of storing dairy waste in an RCS. Written notification may be on paper, electronic mail, or other electronic method as prescribed by the executive director. The following information shall be provided, in addition to the information required for oral notification, on a form that is prescribed by the executive director:(A) location and name of the RCS that was used to store the dairy waste, including the latitude and longitude;(B) the date(s) that the dairy waste was put into an RCS;(C) the volume of dairy waste (gallons, or acre-feet) that was stored in an RCS;(D) if there was any discharge of dairy waste from the RCSs, and the estimated volume of the discharge (gallons, or acre-feet); and(E) a USGS topographical Map and a Site and Runoff Control Map identifying where the dairy waste was stored.(g) Dairy Waste Transfer. A dairy operator may transfer dairy waste to another dairy site for land application or storage in an RCS to use for irrigation when needed.(1) The owner or operator generating the dairy waste shall keep a record of the date and volume of dairy waste (gallons, or acre-feet) that is transferred to another dairy.(2) The owner or operator generating the dairy waste shall provide the laboratory report for total nitrogen, total phosphorus, and total potassium content of the dairy waste to the receiver of the dairy waste. If the laboratory report is not available, the book value of dairy waste from the Texas A & M AgriLife Extension Services shall be used in lieu of the laboratory report.(3) The owner or operator generating the dairy waste shall keep records of the name(s) and address(s) of the recipient(s) of the dairy waste.(h) Dairy Waste Received. A dairy operator that receives dairy waste shall comply with:(1) §321.48 of this title (relating to Land Application of Dairy Waste) if dairy waste is land applied, or(2) the requirements of this section if dairy waste is stored in an RCS.(i) Annual Reporting. The dairy operator that places dairy waste in an RCS under emergency conditions shall include the information required by §321.49(e) in the annual report required by §321.36(g) of this title. Dairy operators that are not authorized by permit, and therefore not required to submit an annual report, must mail the following information to the appropriate TCEQ Regional Office that is servicing the area where the dairy operation is located by March 31 of each year:(1) estimated total volume of dairy waste (in gallons) stored during the reporting period; and (2) total volume of dairy waste (gallons, or acre-feet) land applied during the reporting period.</content><note type="source"><p>Source Note: The provisions of this §321.49 adopted to be effective July 31, 2025, 50 TexReg 4937.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c321/scC"><num value="C">SUBCHAPTER C</num><heading>MEAT PROCESSING</heading><section identifier="/us/state/tx/tac/t30/p1/c321/scC/s321.51"><num value="321.51">§321.51</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Meat processing operation--A plant, facility, establishment, or enterprise in the business of slaughtering cattle, sheep, swine, goats, horses, mules, equines, poultry, domesticated rabbits, or domesticated game birds or in the business of canning, salting, packing, or rendering carcasses or parts of carcasses of these species for sale as human or animal food.(2) Wastewater--Water that is routed to drains or sewers associated with a meat processing operation, including, but not limited to, process water, wash water, and drainage from livestock unloading areas and holding pens and/or poultry unloading areas; provided, however, that nothing in the definition shall be interpreted as requiring the construction of drainage systems for essentially uncontaminated areas, such as areas used solely as parking lot areas where trucks transporting such livestock and/or poultry may be parked prior to entering unloading areas.(3) Water in the state--Groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, and the Gulf of Mexico within the territorial limits of the State of Texas, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or non-navigable, and including the beds and banks of all watercourses and bodies of surface water that are wholly or partially within or bordering the state or within the jurisdiction of the state.</content><note type="source"><p>Source Note: The provisions of this §321.51 adopted to be effective July 3, 1986, 11 TexReg 2894.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scC/s321.52"><num value="321.52">§321.52</num><heading>Application of Subchapter</heading><content>This subchapter applies to the disposal of wastes from meat processing operations.</content><note type="source"><p>Source Note: The provisions of this §321.52 adopted to be effective July 3, 1986, 11 TexReg 2894.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scC/s321.53"><num value="321.53">§321.53</num><heading>Permit Alternative</heading><content>A person whose meat processing operation is subject to this subchapter may submit an application to the executive director for a permit. This subchapter shall continue to apply to any permittee except where the provisions of a permit supersede provisions of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §321.53 adopted to be effective July 3, 1986, 11 TexReg 2894.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scC/s321.54"><num value="321.54">§321.54</num><heading>Protection of Surface Water</heading><content>The degree of protection of surface waters is sufficient if waste control facilities are designed and operated in accordance with the following subsections.(1) Wastewater holding facilities. If a meat processing operation utilizes holding facilities, any holding facility shall be designed and operated to retain all wastewater produced by the meat processing operation for a 30-day period, plus all rainwater which would enter the holding facilities as a result of a 25-year, 24-hour rainfall as defined by Hershfield, Rainfall Frequency Atlas of the United States, U.S. Weather Bureau, Technical Paper No. 40, 1961, or the latest revision thereof. Wastewater holding facilities shall be dewatered within 14 days after any one of the following events occur:(A) collection of a quantity of rainwater in excess of 20% of the quantity of rainfall which would enter the holding facility as a result of the 25-year, 24-hour rainfall, as defined in this section.(B) collection of more than 50% of the volume of wastewater which the pond was designed to retain, such that sufficient capacity is no longer available to retain an addition of all rainwater that would enter the holding facilities as a result of a 25-year, 24-hour rainfall, plus all wastewater produced by the meat processing operation for a 15-day period.(2) Evaporation facility. If a meat processing operation utilizes an evaporation facility, it shall be designed to retain wastewater with no overflow during a 10-year period of above-normal rainfall. Local weather bureau rainfall data may be used in designing these facilities.(3) Irrigation facility. If a meat processing operation utilizes an irrigation facility, it shall be of adequate capacity to dewater all wastewater holding facilities within a 14-day period. If farmland or pastureland is irrigated with wastewater from the meat processing operation or its waste control facilities, the annual application rate (including rainfall) shall not exceed 200% of the expected consumptive use for the particular crop as defined by McDaniels, Consumptive Use of Water by Major Crops in Texas, Texas Board of Water Engineers, Bulletin No. 6010, 1960.(4) Isolation of wastewater. Wastewater must be isolated from outside surface drainage by ditches, diking, or other suitable structures where necessary to provide adequate environmental protection. Such diversion structures shall be designed to be effective during peak flows expected at times when a 25-year, 24-hour rainfall, as described in this section may occur.</content><note type="source"><p>Source Note: The provisions of this §321.54 adopted to be effective July 3, 1986, 11 TexReg 2894.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scC/s321.55"><num value="321.55">§321.55</num><heading>Protection of Groundwater</heading><content>Any wastewater holding facility must conform to the requirements for seepage control specified in paragraphs (1) and (2) of this section. Any facility in an area underlain by clean sands, fractured limestone, or other strata with exceptionally high permeability may be subjected to additional seepage control requirements. (1) Seepage Control. A wastewater retention facility shall be constructed in clay soils or lined with a suitable lining material to prevent contaminated wastewater from reaching groundwaters of better chemical quality. (2) Permeability data. Permeability tests may be required to show that pond liners are adequately impermeable to prevent excessive seepage. The acceptable seepage rate from ponds must be less than 0.1 acre-foot of wastewater per surface acre of pond per year. The acceptable permeability coefficient must be equal to or less than 1.0 x 10-7 centimeters per second at one foot of head and with one foot of permeable material or the equivalent or better thereof. The permeability coefficient must be determined by constant head laboratory permeability tests. The registrant shall furnish certification, signed, sealed, and dated by a licensed professional engineer or licensed professional geoscientist, that the completed pond lining meets the appropriate criteria described in this section prior to using the facilities.</content><note type="source"><p>Source Note: The provisions of this §321.55 adopted to be effective July 3, 1986, 11 TexReg 2894; amended to be effective September 1, 2003, 28 TexReg 6302.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scC/s321.56"><num value="321.56">§321.56</num><heading>Disposal of Solid Wastes</heading><content>Disposal of solid wastes (hoof, hair, hide, bone, paunch manure, sludge, salt, etc.) shall comply with the applicable portions of the Texas Department of Health regulations. The executive director may request evidence of an acceptable method of disposal of all solid process waste not covered specifically by Texas Department of Health regulations.</content><note type="source"><p>Source Note: The provisions of this §321.56 adopted to be effective July 3, 1986, 11 TexReg 2894.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scC/s321.57"><num value="321.57">§321.57</num><heading>Prohibition of Unauthorized Discharge</heading><content>Any person owning or operating a meat processing operation who makes, or proposes to make, any discharge into or adjacent to any water in the state shall submit to the executive director an application for a discharge permit. No person shall make such discharge without authorization from the commission.</content><note type="source"><p>Source Note: The provisions of this §321.57 adopted to be effective July 3, 1986, 11 TexReg 2894.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c321/scD"><num value="D">SUBCHAPTER D</num><heading>SAND AND GRAVEL WASHING</heading><section identifier="/us/state/tx/tac/t30/p1/c321/scD/s321.61"><num value="321.61">§321.61</num><heading>Application of Subchapter</heading><content>This subchapter applies to all sand and gravel washing operations. For the purposes of this subchapter, sand and gravel washing operations means any person, operation, facility, establishment, or enterprise which washes sand and gravel in such a manner as to separate the sand and gravel from other materials present in the mixture in which the sand and gravel were originally taken from the ground. This definition specifically includes any operation which introduces into washwater any material other than material resulting from such washing of sand and gravel.</content><note type="source"><p>Source Note: The provisions of this §321.61 adopted to be effective July 3, 1986, 11 TexReg 2894.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scD/s321.62"><num value="321.62">§321.62</num><heading>Exception to Application of Subchapter</heading><content>Any person to whom this subchapter applies who does not wish to be regulated by it shall submit to the executive director an application for a permit pursuant to the Texas Water Code, Chapter 26. This subchapter shall continue to apply to any person, except where provisions of a permit supersede provisions of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §321.62 adopted to be effective July 3, 1986, 11 TexReg 2894.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scD/s321.63"><num value="321.63">§321.63</num><heading>Treatment and Retention Facilities</heading><content>Any person who conducts a sand and gravel washing operation and who does not have a permit shall provide necessary retention ponds, dikes, ditches, dams, and berms for retaining the process wastewater so that it does not enter any water in the state.</content><note type="source"><p>Source Note: The provisions of this §321.63 adopted to be effective July 3, 1986, 11 TexReg 2894.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scD/s321.64"><num value="321.64">§321.64</num><heading>Diversion of Runoff</heading><content>All uncontaminated runoff shall be diverted around process wastewater treatment and retention facilities.</content><note type="source"><p>Source Note: The provisions of this §321.64 adopted to be effective July 3, 1986, 11 TexReg 2894.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scD/s321.65"><num value="321.65">§321.65</num><heading>Available Capacity</heading><content>The treatment and retention facilities shall at all times provide enough available capacity to retain all process wastewater.</content><note type="source"><p>Source Note: The provisions of this §321.65 adopted to be effective July 3, 1986, 11 TexReg 2894.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scD/s321.66"><num value="321.66">§321.66</num><heading>Prohibition of Unauthorized Discharge</heading><content>Any person owning or operating a sand and gravel washing operation who makes or proposes to make any discharge into or adjacent to any water in the state shall submit to the executive director an application for a discharge permit. No person shall make any such discharge without authorization from the commission.</content><note type="source"><p>Source Note: The provisions of this §321.66 adopted to be effective July 3, 1986, 11 TexReg 2894.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c321/scI"><num value="I">SUBCHAPTER I</num><heading>ADDITIONAL CHARACTERISTICS AND CONDITIONS OF GENERAL PERMITS AND FOR CONTROLLING CERTAIN ACTIVITIES BY RULE</heading><section identifier="/us/state/tx/tac/t30/p1/c321/scI/s321.141"><num value="321.141">§321.141</num><heading>Additional Characteristics and Conditions for General Permits and Control of Certain Activities by Rule</heading><content>40 Code of Federal Regulations §122.28, as in effect on the date of TPDES program authorization, as amended, is adopted by reference, except 40 Code of Federal Regulations §122.28, subsections (b)(3)(ii) and (c), and except as follows: Where 40 Code of Federal Regulations §122.28 refers to a "general permit" or an "NPDES permit," the references are more properly made, for state law purposes, to a "permit by rule," a "general permit" or a "TPDES permit," as applicable. Where §122.28(b)(3)(iii) refers to 40 Code of Federal Regulations §122.21, the reference is more properly made, for state law purposes, to applicable sections of Chapters 205, 281 and 305 of this title.</content><note type="source"><p>Source Note: The provisions of this §321.141 adopted to be effective October 8, 1990, 15 TexReg 5502; amended to be effective June 21, 1998, 23 TexReg 6238.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c321/scN"><num value="N">SUBCHAPTER N</num><heading>HANDLING OF WASTES FROM COMMERCIAL FACILITIES ENGAGED IN LIVESTOCK TRAILER CLEANING</heading><section identifier="/us/state/tx/tac/t30/p1/c321/scN/s321.251"><num value="321.251">§321.251</num><heading>Statement of No Discharge Policy</heading><content>It is the policy of the commission that there shall be no discharge of waste or wastewater from commercial livestock trailer cleaning facilities into water in the state. These materials shall be retained and utilized or disposed of on agricultural land. Any discharges from commercial livestock trailer cleaning facilities into water in the state shall be considered unauthorized discharges. No person shall make such discharge without authorization or permit from the commission.</content><note type="source"><p>Source Note: The provisions of this §321.251 adopted to be effective July 26, 1996, 21 TexReg 6637.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scN/s321.252"><num value="321.252">§321.252</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, have the following meanings.(1) Agronomic rate--The wastewater application rate designed:(A) to provide the amount of nitrogen needed by the crop or vegetation grown on the land; and(B) to minimize the amount of nitrogen in the wastewater that passes below the root zone of the crop or vegetation grown on the land to the groundwater.(2) Edwards Aquifer--That portion of an arcuate belt of porous, water-bearing limestones composed of the Comanche Peak, Edwards, and Georgetown formations trending from west to east to northeast through Kinney, Uvalde, Medina, Bexar, Comal, Hays, Travis, and Williamson Counties. (See Chapter 213 of this title (relating to Edwards Aquifer).)(3) Existing facilities--Commercial livestock trailer cleaning facilities in active operation prior to January 5, 1996.(4) Facility wastewater--Any livestock trailer cleaning wastewater collected for treatment and disposal at a commercial facility, in accordance with the requirements of this subchapter.(5) Grab sample--An individual sample collected in less than 15 minutes.(6) Licensed professional geoscientist--A geoscientist who maintains a current license through the Texas Board of Professional Geoscientists in accordance with its requirements for professional practice.(7) Livestock trailer cleaning facilities--Facilities which provide means to remove, contain, treat, and dispose of wastes from livestock trailers.(8) New facilities--Commercial livestock trailer cleaning facilities not defined in this section as existing facilities.(9) Publicly owned treatment works (POTW)--A treatment works owned by a state or municipality, which includes any device or system used in the storage, treatment, recycling, and reclamation of municipal sewage or industrial wastes of a liquid nature. This definition includes sewers, pipes, or other conveyances only if they convey wastewater to a POTW providing treatment. This term also means the municipality which has jurisdiction over indirect discharges to and discharges from such a treatment works.(10) Recharge zone--Generally, that area where the Edwards and associated limestones crop out in Kinney, Uvalde, Medina, Bexar, Comal, Hays, and Williamson Counties and the outcrops of other formations in proximity to the Edwards limestone, where faulting and fracturing may allow recharge of the surface waters to the Edwards Aquifer, and the area in Uvalde County within 500 feet of the Nueces, Dry Frio, Frio, and Sabinal Rivers downstream from the northern Uvalde County line to the recharge zone as otherwise delineated on official maps located in the offices of the commission and the Edwards Underground Water District. (See Chapter 213 of this title (relating to Edwards Aquifer).)(11) Registrant--An individual or entity authorized by the executive director to dispose of wastewater from commercial facilities associated with the handling of waste from livestock trailer cleaning under the terms and requirements of this subchapter.(12) Storm water--Storm water runoff, snow melt runoff, surface runoff, and drainage.</content><note type="source"><p>Source Note: The provisions of this §321.252 adopted to be effective July 26, 1996, 21 TexReg 6637; amended to be effective September 1, 2003, 28 TexReg 6302.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scN/s321.253"><num value="321.253">§321.253</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to regulate by rule the removal, containment, treatment and disposal of wastes occurring at commercial livestock trailer cleaning facilities. Certificates of registration issued under this chapter are subject to Chapter 50, Subchapter G of this title (relating to Action by the Executive Director). The requirements of this subchapter apply to only those livestock trailer cleaning facilities that are described in both paragraphs (1) and (2) of this subsection:(1) The facility is commercial. A facility is "commercial" if the owner or operator provides trailer cleaning services to other persons for profit, or provides such service in conjunction with other services.(2) The facility utilizes evaporation ponds, storage pond(s) or other pond(s) with land application as a means of treatment and disposal.(b) The requirements of this subchapter do not apply to other livestock trailer cleaning facilities.(c) A livestock trailer cleaning facility that is subject to the requirements of this subchapter must also comply with other commission rules, if applicable.(d) Executive director authorization by a registration issued pursuant to this subchapter is not required if untreated facility wastewater is either discharged or transported to a POTW which has a wastewater permit issued by the agency.(e) Regardless of the applicability of subsection (a) of this section, a livestock trailer cleaning facility that is otherwise subject to the requirements of this subchapter, but which is a component of a feedlot or concentrated animal feeding operation regulated under the requirements of this chapter or regulated by permit as provided by Chapter 305 of this title (relating to Consolidated Permits), is not subject to the requirements of this subchapter.(f) If the executive director denies a registration application under this subchapter, the facility must obtain a permit pursuant to the Texas Water Code, Chapter 26.(g) New livestock trailer cleaning operations are prohibited from being registered under this rule when located on the Edwards Aquifer Recharge Zone. New livestock trailer cleaning operations located on the Edwards Aquifer Recharge Zone are required to submit an application for permit to the agency's Wastewater Permits Section (MC 148).</content><note type="source"><p>Source Note: The provisions of this §321.253 adopted to be effective July 26, 1996, 21 TexReg 6637; amended to be effective May 14, 2020, 45 TexReg 3116.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scN/s321.254"><num value="321.254">§321.254</num><heading>Certificate of Registration and Public Notice</heading><content>(a) An applicant must apply for registration on a form approved by the executive director. A completed application shall be submitted to the agency's Wastewater Permits Section (MC 148). Before issuing a certificate of registration, the executive director will review the application to determine whether the facility operations meet the requirements of §321.255 of this title (relating to General Requirements for Containment of Wastes and Pond(s)) and §321.256 of this title (relating to General Requirements for Land Application).(b) The executive director may take action on an application to issue a certificate of registration, provided:(1) At least 30 days prior to approving an application and issuing the certificate of registration, notice of the application has been provided by the applicant, at the applicant's cost:(A) in a newspaper regularly published and generally circulated within the county and area wherein the proposed facility and discharge is to be located;(B) in writing by certified mail (return receipt requested) to the county judge of the county in which the facility is to be located and also when the facility is to be located within the jurisdictional boundaries of a city or town, to the mayor of that city or town; and(C) the notices of application are provided in a format approved by the commission and shall fairly set forth the substance of the application and proposed action, including but not limited to, the general location of any point of discharge, the method of obtaining additional information about the application, and the method for submitting comment on the application.(2) With any application for a registration, submitted pursuant to this subchapter, the applicant shall also provide proof to the executive director that public notice was provided in accordance with paragraph (1) of this subsection. The proof shall be provided within 14 days of obtaining the following information, which shall consist of:(A) a signed affidavit from the publisher acknowledging that the notice was published, indicating the date of publication, and providing a copy of the newspaper clipping; and(B) a sworn statement from the applicant that written notice was mailed to the appropriate entities, identified in this subsection, along with a copy(s) of the return receipt acknowledgment from the U.S. Postal Service.(3) The application, including the material required by paragraph (2) of this subsection, shall be mailed to the agency's Wastewater Permits Section (MC 148). The application shall undergo review by the executive director following the determination that notice requirements of this section are met.(4) Any pertinent comments received by the executive director prior to the end of the 30-day period, after all the notices have been provided, will be considered as a part of any decision of approval, denial, or modification of a request for registration from an applicant. The executive director shall mail notice of the final decision to the applicant and to any other person who submitted comments on the application.(c) The public notice provisions of this section do not apply to a facility which is operating under an agency wastewater discharge permit if the facility applies for registration prior to the expiration date of the permit.(d) Public notice provisions of this section do not apply to an existing facility which is not operating under an agency wastewater discharge permit if an application for registration is received by the executive director within 180 days after the date this rule takes effect.(e) Livestock trailer cleaning facilities that are currently operating under a valid agency wastewater discharge permit may apply for registration of these operations prior to the expiration date of the permit. Upon issuance of the final registration, the executive director shall void the permit. This subchapter does not prevent the executive director from denying a registration application and requiring the facility to have a permit.(f) An existing facility that does not hold a valid agency wastewater discharge permit must submit an application for registration or an application for a permit within 180 days after the date this rule takes effect.</content><note type="source"><p>Source Note: The provisions of this §321.254 adopted to be effective July 26, 1996, 21 TexReg 6637.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scN/s321.255"><num value="321.255">§321.255</num><heading>Requirements for Containment of Wastes and Pond(s)</heading><content>(a) All livestock trailers shall be washed out on a concrete area which is adequately curbed and sloped to allow for containment of all solids and liquids removed from the trailers. Manure may be separated and allowed to dry in this contained concrete area. Wastewater containing solids shall be conveyed directly from the contained concrete area to the treatment or storage pond(s). The pond(s) may be designed to treat wastewater using evaporation, with or without the recycling of wastewaters, as the sole means of disposal or in conjunction with land application. (b) All pond(s) used for the retention of treated or untreated wastewater shall be adequately lined to control seepage. The following methods of pond lining are acceptable. (1) In-situ clay soils or placed and compacted clay soils meeting the following requirements: (A) more than 30% passing a Number 200 mesh sieve; (B) liquid limit greater than 30%; (C) plasticity index greater than 15; (D) a minimum thickness of two feet; (E) permeability equal to or less than 1 x 10 -7 centimeter per second (the requirements described in this subparagraph apply only to new ponds constructed or modified after the effective date of these regulations); and (F) soil compaction will be 95% standard proctor density at optimum moisture content (the requirements described in this subparagraph apply only to new ponds constructed or modified after the effective date of these regulations). (2) Membrane lining with a minimum thickness of 30 mils, and an underdrain leak detection system. (3) An alternate method of pond lining may be utilized with prior approval from the executive director. (c) The registrant shall furnish certification, signed, sealed, and dated by a Texas licensed professional engineer or licensed professional geoscientist, that the completed pond lining meets the appropriate criteria described in this section prior to using the facilities. The certification must be sent to the agency's Wastewater Permits Section (MC 148) and a copy to the appropriate agency regional office. (d) All wastewater retention ponds shall be operated in such a manner as to maintain a minimum freeboard of two feet and shall be monitored in each pond by use of an in-place gage. Gage measurements of freeboard shall be taken from each pond on each day that trailer cleaning services are provided, and the measurements shall be recorded. These records shall be maintained for a minimum of three years and shall be readily available for inspection by commission staff. (e) All waste containment structures or ponds must be constructed to comply with minimum distance requirements specified in §290.41 of this title (relating to Water Sources) and with the minimum distance requirements specified in 16 TAC §76.1000 (relating to Technical Requirements--Location and Standards of Completion for Wells).(f) All waste containment structures or ponds must be protected from inundation by a ten-year, 24-hour rainfall event.</content><note type="source"><p>Source Note: The provisions of this §321.255 adopted to be effective July 26, 1996, 21 TexReg 6637; amended to be effective September 1, 2003, 28 TexReg 6302.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scN/s321.256"><num value="321.256">§321.256</num><heading>General Requirements</heading><content>(a) If land application is utilized for disposal of waste or wastewater, the following requirements shall apply:(1) Utilization and disposal methods.(A) Liquid and solid waste shall be distributed on agricultural lands so that neither the waste nor rainfall runoff discharge into water in the state.(B) When irrigation disposal of wastewater is used, tailwater facilities shall be provided as necessary to prevent the release of applied wastewater to water in the state.(C) Disposal of waste and wastewater shall be conducted in such a manner as to prevent nuisance conditions such as odors and flies.(D) Wastewater shall not be irrigated when the ground is frozen or saturated or during rainfall events.(2) Application rates. Liquid and solid waste or wastewater shall be applied in such concentrations and application to the soil shall be made at an agronomic rate suitable to the crop being grown, so as to not inhibit the growth of crops or forage or result in wastewater runoff.(3) Management of wastes. Collection, storage, and disposal of liquid and solid waste or wastewater shall be carried out in accordance with recognized practices of good agricultural management.(b) All solid waste materials stockpiled or retained on-site shall be isolated from all run-on storm water by dikes, terraces, berms, ditches, or other similar structures and shall be maintained so as to retain all rainfall which comes into contact with the stockpiled solid waste material.(c) The facility shall take all steps necessary to prevent any adverse effects upon human health or safety, or to the environment. Any facility authorized under this subchapter shall report any noncompliance (including any unauthorized discharges or overflows) pursuant to the requirements of this subchapter which may endanger human health or safety or the environment. Report of such information shall be provided orally to the agency's Regional Office within 24 hours of becoming aware of the noncompliance. A written submission of such information shall also be provided to the agency's Regional Office and to the agency's Water Section, Enforcement Division (MC 149), within five working days of becoming aware of the noncompliance. The written submission shall contain a description of the noncompliance and its cause; the potential danger to human health or safety, or the environment; the period of noncompliance, including exact dates and times; if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent recurrence of the noncompliance, and to mitigate its adverse effects.(d) The executive director must be notified, in writing, of any change in control or ownership of facilities, or any expansion of facilities authorized under this subchapter. The applicant must send the notification to the agency's Wastewater Permits Section (MC 148).(e) The executive director may require a facility which seeks authorization under this subchapter to apply for and obtain an agency permit. The executive director may declare that an application for permit must be submitted pursuant to the Texas Water Code, Chapter 26. In making such a determination, the executive director may consider such factors as necessary to carry out its powers and duties under the Texas Water Code and other laws of the State.(f) The registrant authorized under the terms of this subchapter shall maintain records of the process control, maintenance activities, and solids disposal to include at a minimum: volume and dates on which solids were removed from the facility, identity of any transporter, location and identity of any solids disposal site, and method of final disposal. This information shall be maintained for a minimum of three years and shall be readily available for review upon request.(g) The executive director may deny an application for registration on the following grounds: the potential or actual adverse impact on, or close proximity to, a public park, school, recreational area, spring, water supply well, surface water supply intake, water treatment plant intake, potable water storage facility or sewage treatment plant. In making such determination, the executive director may also consider other factors, as necessary to carry out its powers and duties under the Texas Water Code and other laws of the state.</content><note type="source"><p>Source Note: The provisions of this §321.256 adopted to be effective July 26, 1996, 21 TexReg 6637.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scN/s321.257"><num value="321.257">§321.257</num><heading>Restrictions</heading><content>(a) This rule does not convey property rights or grant any exclusive privilege.(b) Separate authorizations may be required by the executive director, municipalities, or other agencies for discharges to domestic sewage plants, storm water sewers, or for air emissions.(c) Nothing in this rule shall be construed to authorize any injury to persons or property, or an invasion of other property rights, or any infringement of state or local law or regulation.</content><note type="source"><p>Source Note: The provisions of this §321.257 adopted to be effective July 26, 1996, 21 TexReg 6637.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scN/s321.258"><num value="321.258">§321.258</num><heading>Enforcement and Revocation</heading><content>If any registrant or facility regulated by this subchapter fails to comply with the terms of this subchapter, the executive director may take enforcement action as provided by the Texas Water Code and in accordance with Chapter 70 of this title (relating to Enforcement). The executive director may revoke any registration granted to a registrant or facility due to noncompliance with the requirements of this subchapter, after notice to the registrant and opportunity for hearing, and such registrant shall cease any discharge until such time as the facility is issued a wastewater discharge permit, an emergency order, or temporary order as provided by Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions) for the discharge of wastewater into or adjacent to water in the state.</content><note type="source"><p>Source Note: The provisions of this §321.258 adopted to be effective July 26, 1996, 21 TexReg 6637; amended to be effective December 10, 1998, 23 TexReg 12442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scN/s321.259"><num value="321.259">§321.259</num><heading>Annual Waste Treatment Fee</heading><content>In accordance with §§305.501-305.507 of this title (relating to Waste Treatment Inspection Fee Program), registrants authorized to dispose of livestock trailer cleaning waste under the requirements of this subchapter shall remit to the commission an annual waste treatment fee. The fee assessed annually shall be $500 for any active facility or $250 for any inactive facility. Any increased assessment above the fee amounts listed in this subsection for active and inactive facilities shall be in accordance with regulations adopted by the commission.</content><note type="source"><p>Source Note: The provisions of this §321.259 adopted to be effective July 26, 1996, 21 TexReg 6637.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c321/scP"><num value="P">SUBCHAPTER P</num><heading>RECLAIMED WATER PRODUCTION FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c321/scP/s321.301"><num value="321.301">§321.301</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to establish authorization procedures, general design criteria, and operational requirements for reclaimed water production facilities and thereby promote the beneficial use of reclaimed water that may be substituted for potable water or raw water.(b) This subchapter authorizes a reclaimed water production facility to produce reclaimed domestic wastewater at a site other than a permitted domestic or associated domestic wastewater treatment facility.(c) A reclaimed water production facility authorized according to this subchapter is not required to hold a wastewater discharge or disposal permit from the commission, except as provided in §210.5 of this title (relating to Authorization for the Use of Reclaimed Water).(d) A reclaimed water production facility may be authorized under this subchapter if: (1) the owner of the reclaimed water production facility is also the owner of the associated domestic wastewater treatment facility that is permitted by the commission; or(2) the owner of the reclaimed water production facility has documented consent, as required in §321.309(d)(11) of this title (relating to Public Notice Requirements), from the owner and operator of an associated domestic wastewater treatment facility and, if applicable, the owner of the wastewater collection system to which the reclaimed water production facility is or will be connected.(e) If the wastewater discharge or disposal permit for the domestic wastewater treatment facility associated with a reclaimed water production facility expires, lapses, is surrendered, suspended, or revoked, the authorization to operate the reclaimed water production facility is automatically cancelled.</content><note type="source"><p>Source Note: The provisions of this §321.301 adopted to be effective November 27, 2008, 33 TexReg 9507; amended to be effective March 5, 2025, 50 TexReg 1689.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scP/s321.303"><num value="321.303">§321.303</num><heading>Definitions</heading><content>All definitions in Texas Water Code, §26.001 and 30 TAC Chapters 210 and 305 of this title (relating to Use of Reclaimed Water, and Consolidated Permits) shall apply to this subchapter and are incorporated by reference. Specific definitions of words or phrases used in this subchapter are as follows:(1) Authorization--a written document issued by the commission allowing an owner to construct and operate a reclaimed water production facility in accordance with the provisions of this subchapter.(2) Collection System--pipes, conduits, lift stations, force mains, and all other constructions, devices, and appurtenant appliances used to transport domestic wastewater to a wastewater treatment facility, as defined in Chapter 217 of this title (relating to Design Criteria for Domestic Wastewater Systems). (3) Reclaimed Water Production Facility--a domestic wastewater treatment facility authorized in accordance with this subchapter that treats wastewater for reuse on an as-needed basis and is located at a different location from the domestic or associated domestic wastewater treatment facility.(4) Treatment unit--Any apparatus necessary for treating wastewater located at the reclaimed water production facility.</content><note type="source"><p>Source Note: The provisions of this §321.303 adopted to be effective November 27, 2008, 33 TexReg 9507; amended to be effective March 5, 2025, 50 TexReg 1689.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scP/s321.305"><num value="321.305">§321.305</num><heading>General Requirements</heading><content>(a) An applicant for authorization to produce reclaimed water at a reclaimed water production facility must have:(1) a domestic wastewater permit for a domestic wastewater treatment facility that is located at the terminus of the collection system to which the reclaimed water production facility is or will be connected; or (2) documented consent from the owner and operator of the wastewater collection system and associated domestic wastewater treatment facility to which the reclaimed water production facility is or will be connected; and(3) an authorization to use reclaimed water under Chapter 210 of this title (relating to the Use of Reclaimed Water).(b) Applications for reclaimed water production facilities and for authorization to beneficially reuse reclaimed water under Chapter 210 of this title may be submitted concurrently.(c) The authorization for a reclaimed water production facility does not alter the permitted flow or effluent limits of the associated domestic wastewater treatment facility.(d) If the consent under Section 321.305(a)(2) is withdrawn by the collection system or associated domestic wastewater treatment facility owner(s), the authorization to operate the reclaimed water production facility without an alternate disposal permit is terminated. The owner or operator of the reclaimed water production facility must provide the executive director with written notice of the withdrawn consent, and confirmation that the reclaimed water production facility has ceased operation within five (5) business days after the owner or operator is notified that the consent has been withdrawn.</content><note type="source"><p>Source Note: The provisions of this §321.305 adopted to be effective November 27, 2008, 33 TexReg 9507; amended to be effective March 5, 2025, 50 TexReg 1689.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scP/s321.307"><num value="321.307">§321.307</num><heading>Restrictions</heading><content>(a) A reclaimed water production facility may not discharge pollutants into water in the state without a Texas Pollutant Discharge Elimination System permit.(b) The hydraulic capacity of the reclaimed water production facilities may not individually nor collectively exceed the permitted hydraulic capacity of the associated domestic wastewater treatment facility.(c) A reclaimed water production facility may not be authorized at a flow rate that could cause interference with the operation of the associated domestic wastewater treatment facility or a violation of the associated domestic wastewater treatment facility's permit.(d) A reclaimed water production facility may not treat or dispose of sludge. All sludge must be conveyed through the collection system to the associated domestic wastewater treatment facility, treated, and disposed of in accordance with the associated facility's permit and all applicable rules.(e) The owner may not accept trucked or hauled wastes at a reclaimed water production facility.(f) Authorization under this chapter does not convey or alter any property right and does not grant any exclusive privilege.</content><note type="source"><p>Source Note: The provisions of this §321.307 adopted to be effective November 27, 2008, 33 TexReg 9507; amended to be effective March 5, 2025, 50 TexReg 1689.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scP/s321.309"><num value="321.309">§321.309</num><heading>Application Requirements</heading><content>(a) An applicant shall comply with the provisions of §§305.42(a), 305.43, 305.44, and 305.47 of this title (relating to Application Required; Who Applies; Signatories to Applications; and Retention of Application Data).(b) An application for an authorization of a reclaimed water production facility under this subchapter must be made on forms prescribed by the executive director.(c) An applicant shall submit one original application with attachments to the executive director and one additional copy of the application with attachments to the appropriate regional office. Additional copies may be required as noted in the application.(d) The application must contain, at a minimum, the following information:(1) the applicant's name, mailing address, and telephone number;(2) the permit number of the associated domestic wastewater treatment facility;(3) a brief description of the nature of the reclaimed water use;(4) the signature of the applicant, in accordance with §305.44 of this title;(5) a copy of a recorded deed or tax records showing ownership, or a copy of a contract or lease agreement between the applicant and the owner of any lands to be used for the reclaimed water production facility;(6) a copy of the applicant's reuse authorization issued under Chapter 210 of this title (relating to Use of Reclaimed Water), or a copy of a concurrent application;(7) a design report for the reclaimed water production facility that includes the design flow, design calculations, the size of the proposed treatment units, a flow diagram, and the proposed effluent quality;(8) a buffer zone map and report indicating how the reclaimed water production facility will meet buffer zone requirements;(9) a County General Highway Map (with scale clearly shown) to identify the relative location of the domestic wastewater treatment facility, the main lines of the collection system, and the reclaimed water production facility and at least a one-mile area surrounding the reclaimed water production facility;(10) one original (remainder in color copies, if required) United States Geological Survey 7.5-minute quadrangle topographic map or an equivalent high quality color copy showing the boundaries of land owned, operated or controlled by the applicant and to be used as a part of the reclaimed water production facility. The map shall extend at least a one-mile beyond the facility boundaries and shall be sufficient to show the following:(A) each well, spring, and surface water body or other water in the state within the one-mile area; and(B) the general character of the areas adjacent to the facility, including public roads, towns and the nature of development of adjacent lands such as residential, commercial, agricultural, recreational, and undeveloped.(11) For reclaimed water production facilities seeking coverage for disposal through an associated domestic wastewater treatment facility, copies of the following documented consent must be submitted with the application:(A) the documented consent from the owner and operator of the associated domestic wastewater treatment facility demonstrating that the facility has capacity to receive discharges of reclaimed water, untreated wastewater, and sludge from the reclaimed water production facility without exceeding or violating any permit requirements in the event that reclaimed water cannot be beneficially reused or the reclaimed water production facility is out of service.(B) the documented consent from the owner of the collection system to which the reclaimed water production facility is or will be connected, if applicable.(12) any other information requested by the executive director.</content><note type="source"><p>Source Note: The provisions of this §321.309 adopted to be effective November 27, 2008, 33 TexReg 9507; amended to be effective March 5, 2025, 50 TexReg 1689.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scP/s321.311"><num value="321.311">§321.311</num><heading>Application Review</heading><content>(a) The executive director will review all applications for reclaimed water production facility authorizations for administrative and technical completeness.(b) If an application has either an administrative or technical deficiency, the applicant will be asked to submit additional information no later than 30 days following the date of the request.(c) If additional information is not timely submitted or is insufficient to complete the application, the executive director may return the application without refunding the application fee.(d) If the application is both administratively and technically complete, the executive director will:(1) proceed with processing the application; and(2) if applicable, notify the applicant to publish notice according to §321.319 of this title (relating to Public Notice Requirements).</content><note type="source"><p>Source Note: The provisions of this §321.311 adopted to be effective November 27, 2008, 33 TexReg 9507.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scP/s321.313"><num value="321.313">§321.313</num><heading>Authorization</heading><content>(a) The executive director shall not authorize a reclaimed water production facility unless the following conditions are met:(1) the applicant has obtained plans and specifications approval for the reclaimed water production facility according to the design criteria according to §321.315 of this title (relating to Design Requirements); and(2) the applicant has an authorization according to Chapter 210 of this title (relating to Use of Reclaimed Water).(b) The executive director shall not authorize a reclaimed water production facility owned or operated by an applicant that has a compliance history rating of unsatisfactory, as defined by Chapter 60 of this title (relating to Compliance History).(c) The executive director shall not authorize a reclaimed water production facility that discharges to a domestic or associated domestic wastewater treatment facility that has a compliance history site rating of unsatisfactory, as defined by Chapter 60 of this title.(d) The applicant, public interest counsel or other persons may file with the Office of the Chief Clerk a motion to overturn the executive director's final action on an authorization for a reclaimed water production facility under §50.139(a), (b), and (d) - (g) of this title (relating to Motion to Overturn Executive Director's Decision).</content><note type="source"><p>Source Note: The provisions of this §321.313 adopted to be effective November 27, 2008, 33 TexReg 9507; amended to be effective March 5, 2025, 50 TexReg 1689.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scP/s321.315"><num value="321.315">§321.315</num><heading>Design Requirements</heading><content>(a) Plans and specifications for a reclaimed water production facility must meet the design criteria and the operation, maintenance, and safety requirements in Chapter 217 of this title (relating to Design Criteria for Wastewater Treatment Systems) except for redundant treatment units or processes, including power supplies, if the design incorporates sufficient provisions to ensure the effluent quality meets the required limits in the event of a failure of a power supply or a treatment unit or process.(b) The reclaimed water production facility must be designed to convey all wastewater to the domestic or associated domestic wastewater treatment facility any time the facility is not in operation.(c) The reclaimed water production facility must be designed to convey all sludge received or produced by the facility to the domestic or associated domestic wastewater treatment facility. Sludge may be held in an aerated storage vessel for discharge to the collection system if the entire sludge contents are completely discharged at least once within every 24-hour period.(d) The reclaimed water production facility must be designed and operated to minimize odor and other nuisance conditions.(e) The following treatment processes and units are prohibited:(1) unaerated primary treatment units (including Imhoff tanks and primary clarifiers);(2) trickling filters;(3) pond or lagoon treatment systems;(4) flow equalization basins; and(5) unenclosed screenings storage containers.</content><note type="source"><p>Source Note: The provisions of this §321.315 adopted to be effective November 27, 2008, 33 TexReg 9507; amended to be effective March 5, 2025, 50 TexReg 1689.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scP/s321.317"><num value="321.317">§321.317</num><heading>Buffer Zone Requirements</heading><content>(a) A reclaimed water production facility must comply with §309.12 of this title (relating to Site Selection to Protect Groundwater or Surface Water).(b) A reclaimed water production facility must comply with §309.13(a) - (d) of this title (relating to Unsuitable Site Characteristics).(c) A reclaimed water production facility that does not qualify for an enhanced buffer zone designation must locate each treatment unit at least 150 feet from the nearest property line.(d) To qualify for an enhanced buffer zone designation, a reclaimed water production facility must comply with one of the following buffer zone requirements:(1) A treatment unit not located in a building may not be located closer than 300 feet to the nearest property line;(2) A treatment unit located within an enclosed building that is not equipped with exhaust air systems and odor control technology may not be located closer than 150 feet of the nearest property line; or(3) A treatment unit located within an enclosed building equipped with exhaust air systems and odor control technology may not be located closer than 50 feet of the nearest property line.(e) An applicant must own or have sufficient property interest to the land necessary to meet the buffer zone requirements so that residential structures are prohibited within the buffer zone. An applicant must submit sufficient evidence of its property interest to demonstrate the reclaimed water production facility meets the applicable buffer zone.</content><note type="source"><p>Source Note: The provisions of this §321.317 adopted to be effective November 27, 2008, 33 TexReg 9507.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scP/s321.319"><num value="321.319">§321.319</num><heading>Public Notice Requirements</heading><content>(a) Public notice is not required if an applicant for a reclaimed water production facility qualifies for an enhanced buffer zone designation in accordance with §321.317(d) of this title (relating to Buffer Zone Requirements).(b) An applicant for a reclaimed water production facility that does not qualify for an enhanced buffer zone designation shall place a sign at the proposed site during the public comment period as defined in subsection (c)(3) of this section.(1) The sign must include no less than two-inch, black, block-lettering on a white background. The sign must include the following information:(A) the legal name and address of the applicant;(B) notice that the applicant has applied for authorization to construct a reclaimed water production facility at the site;(C) how the public may provide comments to the TCEQ; and(D) where copies of the application, executive director's technical summary, and draft authorization may be reviewed.(2) The sign placed at the site shall be located at or near the site main entrance, provided that the sign is legible from the public street. If the sign would not be legible from the public street, then the sign shall be placed within ten feet of a property line paralleling a public street.(A) The executive director may approve variations if the applicant has demonstrated that it is not practical to comply with the specific sign-posting requirements.(B) Alternative sign-posting plans proposed by the applicant must be at least as effective in providing notice to the public.(C) The executive director must approve the variations before signs are posted.(c) An applicant for a reclaimed water production facility that does not qualify for an enhanced buffer zone designation shall publish notice of the executive director's preliminary determination on the application at least once in a newspaper of general circulation in the county where the reclaimed water production facility is located or adopted to be located. The notice shall be published at the applicant's expense.(1) The applicant must publish notice no later than 30 days after receiving instructions to publish notice from the Texas Commission on Environmental Quality's (TCEQ's) Office of the Chief Clerk. The notice must include:(A) the legal name of the applicant and the address of the applicant;(B) a brief summary of the information included in the application;(C) the location of the reclaimed water production facility;(D) the location and mailing address where the public may provide comments to the TCEQ;(E) the public location or the publicly accessible internet Web site where copies of the application, executive director's technical summary, and authorization may be reviewed;(F) an opportunity for the public to submit comments on the application and executive director's technical summary; and(G) instructions to the public on how to request a public meeting for a new reclaimed water production facility.(2) The applicant must file with the Office of the Chief Clerk no later than 30 days after receiving the instruction to publish the notice of the executive director's preliminary determination on the application, and if applicable the notice of public meeting:(A) a signed affidavit from the publisher acknowledging that the notice was published and the date of publication; and(B) a copy of the newspaper clipping.(3) The public comment period begins on the first date the notice is published and ends 30 days later unless a public meeting is held. If a public meeting is held, the public comment period ends either 30 days after the initial notice is published or at the conclusion of the public meeting, whichever is later.(4) The public may submit written comments to the Office of the Chief Clerk during the comment period detailing how the application for the reclaimed water production facility fails to meet the technical requirements or conditions of this rule. The executive director will consider all comments received during the comment period.(5) The public may submit a written request for a public meeting to the Office of the Chief Clerk during the comment period.(A) The executive director will determine if there is significant interest to hold a public meeting.(B) If the executive director determines that there is significant interest to hold a public meeting:(i) TCEQ staff will facilitate the meeting; and(ii) the applicant will:(I) arrange accommodations for the public meeting to be held in the county where the reclaimed water production facility will be located; and(II) publish notice of the public meeting in the same newspaper as the initial notice was published at least 30 days prior to the meeting.(iii) At the public meeting the applicant will:(I) describe the proposed reclaimed water production facility and provide maps and other facility data; and(II) provide a sign-in sheet for attendees to register their names and addresses and furnish the sheet to the executive director. (C) A public meeting held under this rule is not an evidentiary proceeding.(6) The TCEQ Office of the Chief Clerk will mail the executive director's decision and final technical summary on which the decision was based to the applicant, persons whose names and addresses appear legibly on the sign-in sheet from the public meeting, and persons who submitted written comments.</content><note type="source"><p>Source Note: The provisions of this §321.319 adopted to be effective November 27, 2008, 33 TexReg 9507; amended to be effective March 5, 2025, 50 TexReg 1689.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scP/s321.321"><num value="321.321">§321.321</num><heading>Additional Reclaimed Water Production Facility Requirements</heading><content>(a) The owner shall employ or contract with one or more licensed wastewater treatment facility operators or wastewater facility operations companies holding a valid license or registration according to the requirements of Chapter 30, Subchapter J of this title (relating to Wastewater Operators And Operations Companies).(b) The operator or wastewater facility operations company shall have the same level of license or higher as the operator license of the permitted domestic or associated domestic wastewater treatment facility associated with the reclaimed water production facility.(c) The owner shall notify the executive director at least 45 days prior to completion and at least 45 days prior to operation of a reclaimed water production facility.</content><note type="source"><p>Source Note: The provisions of this §321.321 adopted to be effective November 27, 2008, 33 TexReg 9507; amended to be effective March 5, 2025, 50 TexReg 1689.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scP/s321.323"><num value="321.323">§321.323</num><heading>Enforcement</heading><content>(a) If an owner of a reclaimed water production facility fails to comply with the terms of its authorization, this subchapter, or other regulations and statutes within the jurisdiction of the commission, the executive director may take enforcement action as provided by the Texas Water Code and in accordance with Chapter 70 of this title (relating to Enforcement).(b) The executive director may revoke any reclaimed water production facility authorization due to noncompliance with the authorization, this subchapter, the requirements of Chapter 210 of this title (relating to Use of Reclaimed Water), or other regulations and statutes within the jurisdiction of the commission, but only after notice and the opportunity for hearing.</content><note type="source"><p>Source Note: The provisions of this §321.323 adopted to be effective November 27, 2008, 33 TexReg 9507.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scP/s321.325"><num value="321.325">§321.325</num><heading>Fees</heading><content>(a) An applicant shall include an application fee of $300.(b) An owner of a reclaimed water production facility authorized under this subchapter shall pay an annual water quality fee in the following amount:(1) $800 for a constructed facility; or(2) $400 for a facility that has not been constructed.</content><note type="source"><p>Source Note: The provisions of this §321.325 adopted to be effective November 27, 2008, 33 TexReg 9507.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c321/scQ"><num value="Q">SUBCHAPTER Q</num><heading>LAND APPLICATION OF DAIRY WASTE AUTHORITY</heading><section identifier="/us/state/tx/tac/t30/p1/c321/scQ/s321.401"><num value="321.401">§321.401</num><heading>Purpose and Applicability</heading><content>This subchapter authorizes by rule direct land application of dairy waste, under emergency conditions, on agricultural land that is not associated with an animal feeding operation or any other TCEQ authorization. The requirements of this subchapter apply to the entity or entities land applying the dairy waste and the owners of the land application area.</content><note type="source"><p>Source Note: The provisions of this §321.401 adopted to be effective July 31, 2025, 50 TexReg 4937.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scQ/s321.403"><num value="321.403">§321.403</num><heading>Dairy Waste Management Alternatives</heading><content>A person or entity that needs to manage dairy waste under emergency conditions may use the options below: (1) land application of dairy waste on agricultural land in accordance with this subchapter;(2) retention and land application of dairy waste at an animal feeding operation in accordance with 30 TAC §321.48 (relating to Land Application of Dairy Waste) and §321.49 (relating to Storage of Dairy Waste in a Retention Control Structure or Playa at an Animal Feeding Operation) of this title;(3) direct land application to agricultural lands authorized under a Texas Pollutant Discharge Elimination System permit or Texas Land Application permit amended to include dairy waste management in their permit;(4) disposal at a permitted solid waste landfill;(5) disposal via a permitted injection well;(6) hauling or discharging to a permitted domestic wastewater collection system with written consent from the plant operator or owner;(7) use as animal feed in accordance with Texas Agriculture Code, Chapter 141 (relating to Commercial Feed); or(8) other beneficial uses approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §321.403 adopted to be effective July 31, 2025, 50 TexReg 4937.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scQ/s321.405"><num value="321.405">§321.405</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, have the following meanings.(1) Agronomic rate--The dairy waste application rate designed:(A) to provide the amount of nitrogen needed by the crop or vegetation grown on the land; and(B) to minimize the amount of nitrogen in the dairy waste that passes below the root zone of the crop or vegetation grown on the land.(2) Agricultural land--Cropland, grassland, rangeland, pasture, or other specific land areas that are solely devoted to being used for growing crops, hay, or forage.(3) Dairy Operation--Any entity involved in milk production, collection, transportation, receiving, transfer, or processing.(4) Dairy Waste--Milk, milk by-products, or milk processing waste that is spilled, spoiled, adulterated, unmarketable, stranded, or otherwise unfit for human consumption produced by a dairy operation. For the purposes of this rule, dairy waste does not include solid or semi-solid milk products.(5) Emergency Conditions--Instances where dairy waste is generated at any point along the dairy supply chain due to a reasonably unforeseeable situation, including but not limited to:(A) fire, flood, earthquake, hurricane, tornado, or wind, rain, ice, or snowstorm;(B) power failure, transportation failure, mechanical failure, or interruption of communication facilities;(C) epidemic;(D) riot, civil disturbance, enemy attack, or other actual or threatened act of lawlessness or violence; or(E) any other situation deemed by the executive director to qualify as an emergency.(6) Land application--The act of applying dairy waste to agricultural land for beneficial use by crops, hay, or forage. Beneficial use includes the addition of nutrients from dairy waste, such as nitrogen and phosphorous, and the water content of dairy waste used to enhance moisture content of the soil.(7) Water in the state--Groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of America, inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.</content><note type="source"><p>Source Note: The provisions of this §321.405 adopted to be effective July 31, 2025, 50 TexReg 4937.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scQ/s321.407"><num value="321.407">§321.407</num><heading>Protection of Surface Water and Groundwater Quality</heading><content>(a) The discharge of dairy waste into water in the state, including surface waters and groundwater, is prohibited. (b) Land application of dairy waste shall not contaminate groundwater.</content><note type="source"><p>Source Note: The provisions of this §321.407 adopted to be effective July 31, 2025, 50 TexReg 4937.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scQ/s321.409"><num value="321.409">§321.409</num><heading>General Requirements</heading><content>The following requirements apply to land application of dairy waste on agricultural land during emergency conditions. Property owner consent is required for all land application activities. (1) Dairy waste shall not be land applied within 100-feet of any surface water in the state.(2) Dairy waste shall not be land applied within 500 feet of a public drinking water well or within 150 feet of any other water well.(3) Dairy waste shall not be land applied within 750 feet of an occupied residence or business structure, school (including associated recreational areas), permanent structure containing a place of worship, or public park.(4) Dairy waste shall not be land applied within the 100-year floodplain.(5) Dairy waste shall not be land applied when the ground is frozen or saturated or during rainfall events.(6) Dairy waste may only be applied to fields that are vegetated with actively growing crops, hay, or forage, or if to a fallow field, the dairy waste shall be incorporated into the soils within 48 hours of land application. (7) Dairy waste application shall be limited to a maximum of 2,000 gallons per acre per year. For a full tanker truck load of 6,000 to 8,000 gallons, the contents must be applied over a minimum of three to four acres of land to comply with this requirement. (8) Land application practices shall be maintained to minimize ponding or puddling of the dairy waste on the site and prevent the occurrence of nuisance conditions.(9) Dairy waste must be conducive to land application (i.e., in a form that is spreadable and can be incorporated into the soil to avoid piling).(10) Dairy waste shall not be land applied to soils with shallow, perched, or seasonal water tables.</content><note type="source"><p>Source Note: The provisions of this §321.409 adopted to be effective July 31, 2025, 50 TexReg 4937.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scQ/s321.411"><num value="321.411">§321.411</num><heading>Notification</heading><content>(a) The person or entity applying dairy waste, or the owner of the land application areas, shall notify the appropriate TCEQ Regional Office upon land application of dairy waste. Oral notification must occur within 24 hours of land application and written notification within 14 days. Contact information for TCEQ Regional Offices is available in the TCEQ publication number M-070 titled "Area, Region, and Watermaster Offices" available on the TCEQ website at: www.tceq.texas.gov/publications. (b) The notification must include the following information: (1) the location where the dairy waste was land applied including the address, latitude and longitude, or a map;(2) the applicable emergency condition;(3) the date and time that dairy waste was land applied; (4) the volume (gallons) of dairy waste that was land applied; and (5) the duration of the emergency conditions and if additional time will be needed to complete the land application on agricultural land.</content><note type="source"><p>Source Note: The provisions of this §321.411 adopted to be effective July 31, 2025, 50 TexReg 4937.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c321/scQ/s321.413"><num value="321.413">§321.413</num><heading>Duration of Authorization</heading><content>Authorization to land apply dairy waste on agricultural land expires seven (7) calendar days after the emergency condition ends, unless an alternative duration for the authorization is granted by the executive director.</content><note type="source"><p>Source Note: The provisions of this §321.413 adopted to be effective July 31, 2025, 50 TexReg 4937.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c323"><num value="323">CHAPTER 323</num><heading>WASTE DISPOSAL APPROVALS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c323/scB"><num value="B">SUBCHAPTER B</num><heading>APPROVED RATINGS FOR WASTE DISPOSAL SYSTEMS</heading><section identifier="/us/state/tx/tac/t30/p1/c323/scB/s323.21"><num value="323.21">§323.21</num><heading>Rating Systems</heading><content>The executive director, subject to the approval of the board, shall develop, and from time to time revise, a system for evaluating waste disposal facilities to determine if the design and operation merit state approval. In the development and use of this rating system, the executive director will consider the waste treatment system, as well as any other factors which appear to be applicable.</content><note type="source"><p>Source Note: The provisions of this §323.21 adopted to be effective February 23, 1978, 3 TexReg 620.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c323/scB/s323.22"><num value="323.22">§323.22</num><heading>Approved Ratings</heading><content>(a) Any person whose waste disposal facility receives an approved rating may erect signs at appropriate locations to inform the public that the department has approved the waste disposal facility. Before any person whose facilities have been approved may erect a sign, he must agree with the board in writing to the following items.(1) to erect a sign only of a design approved by the board;(2) to provide for the proper maintenance of the sign;(3) to display the sign only as long as the facility continues to maintain its approved rating; and(4) to remove the sign immediately when notified by the executive director that the facility is no longer approved.(b) In addition, a city whose facility has been approved must agree to consult with the district engineer of the department of highways and public transportation or his representative as to the location and height of the sign prior to erecting it.</content><note type="source"><p>Source Note: The provisions of this §323.22 adopted to be effective February 23, 1978, 3 TexReg 620.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c323/scB/s323.23"><num value="323.23">§323.23</num><heading>Rating Procedures</heading><content>(a) Once the rating system has been developed, the executive director will institute a program for the evaluation of all waste disposal facilities. A person may request in writing of the executive director that he evaluate the facility.(b) A waste disposal facility which has been rated, may be revaluated by the executive director at least once a year to ensure that the facility continues to merit approval.(c) Whenever a person's waste disposal facility is given a rating attained and the factors which brought about the rating.</content><note type="source"><p>Source Note: The provisions of this §323.23 adopted to be effective February 23, 1978, 3 TexReg 620.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c324"><num value="324">CHAPTER 324</num><heading>USED OIL STANDARDS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c324/scA"><num value="A">SUBCHAPTER A</num><heading>USED OIL RECYCLING</heading><section identifier="/us/state/tx/tac/t30/p1/c324/scA/s324.1"><num value="324.1">§324.1</num><heading>Federal Rule Adoption by Reference</heading><content>Person(s) managing used oil must comply with the requirements in this chapter and the requirements in 40 Code of Federal Regulations (CFR) Part 279, Standards for the Management of Used Oil, as amended through July 14, 2006, at 71 FedReg 40280, which are adopted by reference. For purposes of this chapter, the term "Administrator" or "Regional Administrator" used in 40 CFR Part 279 shall be read to mean "State Administrator, the Executive Director of the Texas Commission on Environmental Quality, or his representative." The term "Environmental Protection Agency" or "EPA" used in 40 CFR Part 279 shall be read to mean "the Texas Commission on Environmental Quality or its successor."</content><note type="source"><p>Source Note: The provisions of this §324.1 adopted to be effective March 6, 1996, 21 TexReg 2393; amended to be effective August 8, 1999, 24 TexReg 5882; amended to be effective February 21, 2013, 38 TexReg 973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c324/scA/s324.2"><num value="324.2">§324.2</num><heading>Definitions</heading><content>The commission incorporates by reference the definitions in 40 Code of Federal Regulations (CFR) §279.1. However, the following words have these additional meanings:(1) Aboveground tank--A tank used to store or process used oil that is not an underground storage tank as defined in 30 TAC Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks).(2) Earthen area--The active area of the facility is the earthen area at the facility over which any transportation, storage or processing of used oil occurs.(3) Recycling of used oil--(A) Preparing used oil for reuse as a petroleum product by re-refining, reclaiming, or other means;(B) Using used oil as a lubricant or petroleum product instead of using a petroleum product made from new oil; or(C) Burning used oil for energy recovery.(4) Re-refining--Applying processes (other than crude oil refining) to material composed primarily of used oil to produce high-quality base stocks for petroleum products, including settling, filtering, catalytic conversion, fractional/vacuum distillation, hydro treating, or polishing.(5) Secondary containment--Dikes, berms, retaining walls, and/or equivalent structures made of a material(s) that is sufficiently impervious to used oil. These structures shall be designed to meet the specifications found in §324.22(d)(3) of this title (relating to Soil Remediation Requirements for Used Oil Handlers) to retain potential spills of used oil from the tanks or containers, plus run-on water, until removal of the spill.(6) Sufficiently impervious to used oil--Capable of containing all potential spills of used oil from containers and tanks until removal of the spill.(7) Synthetic oils--Oils not derived from crude oil. This includes those from coal, shale, or a polymer-based starting material; and non-polymeric synthetic fluids used as hydraulic or heat transfer fluids. Synthetic oils are generally used for the same purpose as crude oil derived oils and have relatively the same level of contamination after use.(8) Used oil handler--A transporter or an owner or operator of a used oil transfer, processing, re-refining, or off-specification used oil burning facility.</content><note type="source"><p>Source Note: The provisions of this §324.2 adopted to be effective March 6, 1996, 21 TexReg 2393; amended to be effective August 8, 1999, 24 TexReg 5882; amended to be effective February 21, 2013, 38 TexReg 973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c324/scA/s324.3"><num value="324.3">§324.3</num><heading>Applicability</heading><content>The commission incorporates by reference the Applicability and the Exemptions from Applicability requirements in 40 Code of Federal Regulations (CFR) Part 279, Subpart B, §279.10 and §279.11. In addition, the commission adds the following clarifications and requirements:(1) A used oil contaminated with a listed hazardous waste must be handled under Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste). United States Environmental Protection Agency Hazardous Waste Number "F002" must be used on used oil that is listed hazardous due to halogenated contaminants.(2) Used oil can be stored in tanks and containers not meeting 40 CFR Part 264 or 265. The requirement in 40 CFR Part 279 that refers to compliance with 40 CFR Part 264 or 265, Subpart K, on used oil storage applies to used oil stored in surface impoundments. Storage of used oil in lagoons, pits, or surface impoundments is prohibited, unless the generator is storing only wastewater containing de minimis quantities of used oil, or unless the unit is in compliance with 40 CFR Part 264 or 265, Subpart K.(3) Requirements applicable to mixing hazardous waste with used oil are in 40 CFR §279.10(b) (relating to Mixtures of Used Oil and Hazardous Waste). Mixing of hazardous waste with used oil, by other than generators, in tanks and containers within their applicable accumulation time limit, requires a hazardous waste permit per §335.2 of this title (relating to Permit Required). A waste that is characteristically hazardous for "ignitability only" can be mixed with used oil. However, the resultant mixture cannot exhibit the hazardous ignitability characteristic to manage it under this chapter and 40 CFR Part 279 rather than Chapter 335 of this title. The resultant mixture formed from mixing used oil and a characteristically hazardous waste, other than solely ignitable waste, must be tested for all likely hazardous characteristics. The resultant mixture will be a hazardous waste rather than used oil if it retains a hazardous characteristic, even if the hazardous characteristic is derived from the used oil. Anyone who mixes used oil with another solid waste to produce from used oil, or to make used oil more amenable for production of fuel oils or products is also a processor subject to 40 CFR Part 279, Subpart F (relating to Standards for Used Oil Processors and Re-refiners) and §324.12 of this title (relating to Processors and Re-refiners).(4) A used oil shall not be regulated until it is a spent material as defined in 40 CFR §261.1(c)(1) and §335.17 of this title (relating to Special Definitions for Recyclable Materials and Nonhazardous Recyclable Materials).(5) Oily water mixtures to be recycled that are contained in waste management units such as tanks, fractionation tanks, and sumps that meet the design requirements of the American Petroleum Institute for oil-water separation or that have been designed for oil-water separation must be managed under this chapter and meet the prohibition requirements found in §324.4 of this title (relating to Prohibitions) to prevent the discharge of hazardous waste into a sanitary sewer. Management of wastes from other tanks, sumps, and grip trap waste management units that are plumbed directly to a sanitary sewer must comply with the requirements in Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation) and Chapter 330 of this title (relating to Municipal Solid Waste).</content><note type="source"><p>Source Note: The provisions of this §324.3 adopted to be effective March 6, 1996, 21 TexReg 2393; amended to be effective August 8, 1999, 24 TexReg 5882; amended to be effective October 2, 2003, 28 TexReg 8352; amended to be effective February 21, 2013, 38 TexReg 973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c324/scA/s324.4"><num value="324.4">§324.4</num><heading>Prohibitions</heading><content>The commission incorporates by reference the Prohibitions in 40 Code of Federal Regulations Subpart B, §279.12. In addition, the commission requires the following:(1) A person must not collect, transport, store, burn, market, recycle, process, use, discharge, or dispose of used oil in any manner that endangers the public health or welfare of the environment.(2) A person commits an offense if the person:(A) intentionally discharges used oil into a sewer, drainage system, septic tank, surface water or groundwater, watercourse, or marine water;(B) knowingly puts used oil in waste that is to be disposed of in landfills or directly disposes of used oil on land;(C) knowingly transports, treats, stores, disposes of, recycles, markets, burns, processes, re-refines used oil within the state:(i) without first complying with the registration requirements of this rule; and/or(ii) in violation of rules for the management of used oil;(D) intentionally applies used oil to roads or land for dust suppression, weed abatement, or other similar uses;(E) violates an order of the commission to cease and desist any activity prohibited by this section or any rule applicable to a prohibited activity; or(F) intentionally makes any false representation in any document used for program compliance.(3) An exception to paragraph (2) of this section is if a person knowingly disposes into the environment any used oil that has not been separated by the generator from other solid wastes.(4) An exception to paragraph (2)(B) of this section is if the mixing or commingling of used oil with waste to be disposed of in landfills is the unavoidable result of the mechanical shredding of motor vehicles, appliances or other metals.</content><note type="source"><p>Source Note: The provisions of this §324.4 adopted to be effective March 6, 1996, 21 TexReg 2393; amended to be effective March 17, 1998, 23 TexReg 2822; amended to be effective August 8, 1999, 24 TexReg 5882; amended to be effective February 21, 2013, 38 TexReg 973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c324/scA/s324.6"><num value="324.6">§324.6</num><heading>Generators</heading><content>The commission incorporates by reference rules for used oil generators in 40 Code of Federal Regulations Part 279, particularly Subpart C. A person or entity that services equipment involving removal of used oil or changes used oil at a customer's home or business and transports the used oil from the site in quantities less than or equal to 55 gallons may choose to be the generator. If the service company removing the used oil from equipment does not assume generator responsibility, the site owner or operator will remain the generator.</content><note type="source"><p>Source Note: The provisions of this §324.6 adopted to be effective March 6, 1996, 21 TexReg 2393; amended to be effective August 8, 1999, 24 TexReg 5882; amended to be effective February 21, 2013, 38 TexReg 973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c324/scA/s324.7"><num value="324.7">§324.7</num><heading>Collection Centers</heading><content>The commission incorporates by reference rules for owners or operators of all "do-it-yourselfer used oil collection centers" and "used oil collection centers" (as defined in 40 Code of Federal Regulations (CFR) §279.1) in 40 CFR Part 279, particularly Subpart D. All appropriate businesses and government agencies are encouraged to serve as "do-it-yourselfer used oil collection centers" or "used oil collection centers." Collection centers collecting used oil from households will be publicized by the commission. In addition, the commission requires the following:(1) A "Do-it-yourselfer Used Oil Collection Center" must:(A) post and maintain a durable and legible sign identifying the site as a household used oil collection center. Written requests for signs shall be sent to the Texas Commission on Environmental Quality, Used Oil Recycling Program, P.O. Box 13087, Austin, Texas 78711-3087;(B) must register each odd numbered year, no later than January 25 following the close of the year, with the Texas Commission on Environmental Quality, Used Oil Recycling Program utilizing a commission form. Registrations expire on December 31 in even numbered years. New collection centers must register within 30 days of initial operation;(C) collect used oil from households during business hours at each location to be exempt from the fee on first sale of automotive oil;(D) notify the commission in writing within 30 days following abandonment or closure of the collection center or stopping collection of household used oil; and(E) annually report the amount of household used oil collected by January 25 of each year on a commission form.(2) Household used oil is not subject to the rebuttable presumption (a requirement to prove that used oil is not hazardous).(3) A "Used Oil Collection Center" must:(A) post and maintain a durable and legible sign identifying the site as a household used oil collection center. Written requests for signs shall be sent to the Texas Commission on Environmental Quality, Used Oil Recycling Program, P.O. Box 13087, Austin, Texas 78711-3087;(B) register each odd numbered year no later than January 25 following the close of the year, with the Texas Commission on Environmental Quality, Used Oil Recycling Program utilizing a commission form. Registrations expire on December 31 in even numbered years. New collection centers must register within 30 days of initial operation;(C) collect used oil from households during business hours at each location to be exempt from the fee on first sale of automotive oil;(D) notify the commission in writing within 30 days following abandonment or closure of the collection center or stopping collection of household used oil; and(E) report annually the amount of household and non-household used oil collected by January 25 of each year on a commission form. Mixtures of household used oil and non-household used oil shall be considered non-household used oil.(4) Household used oil is not subject to the rebuttable presumption (a requirement to prove used oil is not hazardous) unless mixed with non-household used oil.</content><note type="source"><p>Source Note: The provisions of this §324.7 adopted to be effective March 6, 1996, 21 TexReg 2393; amended to be effective August 8, 1999, 24 TexReg 5882; amended to be effective February 21, 2013, 38 TexReg 973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c324/scA/s324.11"><num value="324.11">§324.11</num><heading>Transporters and Transfer Facilities</heading><content>The commission incorporates by reference rules for used oil transporters and transfer facilities in 40 Code of Federal Regulations (CFR) Part 279, particularly Subpart E. In addition, the commission requires the following:(1) Underground storage tanks (USTs). USTs containing used oil are subject to Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks) and 40 CFR Part 279.(2) Registration. Transporters must register their used oil activities if they have not previously registered their specific used oil activities with the commission and the United States Environmental Protection Agency (EPA). Transporters must register, through the commission, using EPA Form 8700-12 and a commission form. Mail registration forms to the Texas Commission on Environmental Quality, Used Oil Recycling Program.</content><note type="source"><p>Source Note: The provisions of this §324.11 adopted to be effective March 6, 1996, 21 TexReg 2393; amended to be effective March 17, 1998, 23 TexReg 2822; amended to be effective August 8, 1999, 24 TexReg 5882; amended to be effective February 21, 2013, 38 TexReg 973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c324/scA/s324.12"><num value="324.12">§324.12</num><heading>Processors and Re-refiners</heading><content>The commission incorporates by reference rules for owners and operators of used oil processing and re-refining facilities in 40 Code of Federal Regulations (CFR) Part 279, particularly Subpart F. In addition, the commission requires the following:(1) Underground storage tanks. See §324.11(1) of this title (relating to Transporters and Transfer Facilities).(2) Registration. Processors and re-refiners must register their used oil activities if they have not previously registered their specific used oil activities with the commission and the United States Environmental Protection Agency (EPA). Processors and re-refiners must register, through the commission, using the EPA Form 8700-12 and a commission form. Mail registration forms to the Texas Commission on Environmental Quality, Used Oil Recycling Program.(3) Analysis plan. Each facility must prepare an analysis plan. The facility will follow the plan when sampling and analyzing, keeping records, and complying with analytical requirements for documenting that used oil is not listed hazardous and/or the used oil fuel specification has been met. This plan must specify the frequency of sampling and analysis. It must also specify procedures and analysis to assure listed hazardous wastes are not mixed with the used oil received. It must also contain procedures for handling a shipment of contaminated used oil. A facility need not prepare an analysis plan if it:(A) only processes its own used oil; and(B) uses adequate process knowledge instead of analysis to prove that the used oil meets rule requirements.(4) Biennial report. The biennial report required by 40 CFR §279.57(b) covering each odd numbered year must be provided to the commission by December 1 of the odd numbered year if all used oil operations have been completed for that year. If not, you must submit the report by January 25 of the following even numbered year. The information must be entered on a commission form. Mail the report to the Texas Commission on Environmental Quality, Used Oil Recycling Program.</content><note type="source"><p>Source Note: The provisions of this §324.12 adopted to be effective March 6, 1996, 21 TexReg 2393; amended to be effective March 17, 1998, 23 TexReg 2822; amended to be effective August 8, 1999, 24 TexReg 5882; amended to be effective February 21, 2013, 38 TexReg 973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c324/scA/s324.13"><num value="324.13">§324.13</num><heading>Burners of Off-specification Used Oil for Energy Recovery</heading><content>The commission incorporates by reference rules for burners of off-specification used oil for energy recovery in 40 Code of Federal Regulations (CFR) Part 279, particularly Subpart G. In addition, the commission requires the following:(1) Underground storage tanks. See §324.11(1) of this title (relating to Transporters and Transfer Facilities).(2) Registration. Burners must register their used oil activities if they have not previously registered their specific used oil activities with the commission and the United States Environmental Protection Agency (EPA). Burners must register, through the commission, using the EPA Form 8700-12 and a commission form. Mail registration forms to the Texas Commission on Environmental Quality, Used Oil Recycling Program.</content><note type="source"><p>Source Note: The provisions of this §324.13 adopted to be effective March 6, 1996, 21 TexReg 2393; amended to be effective March 17, 1998, 23 TexReg 2822; amended to be effective August 8, 1999, 24 TexReg 5882; amended to be effective February 21, 2013, 38 TexReg 973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c324/scA/s324.14"><num value="324.14">§324.14</num><heading>Marketers of Used Oil Fuel</heading><content>The commission incorporates by reference rules for marketers of used oil which will be burned for energy recovery. These rules are found in 40 Code of Federal Regulations Part 279, Subpart H. In addition, marketers must register their used oil activities if they have not previously registered their specific used oil activities with the commission and the United States Environmental Protection Agency (EPA). Marketers must register, through the commission, using the EPA Form 8700-12 and a commission form. Mail registration forms to the Texas Commission on Environmental Quality, Used Oil Recycling Program.</content><note type="source"><p>Source Note: The provisions of this §324.14 adopted to be effective March 6, 1996, 21 TexReg 2393; amended to be effective March 17, 1998, 23 TexReg 2822; amended to be effective August 8, 1999, 24 TexReg 5882; amended to be effective February 21, 2013, 38 TexReg 973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c324/scA/s324.15"><num value="324.15">§324.15</num><heading>Spills</heading><content>The commission incorporates by reference the Used Oil Spill Prevention, Detection of Releases, and Spill Response requirements in 40 Code of Federal Regulations §§279.22(d), 279.43(c), 279.45(h), 279.54(g), and 279.64. In addition, used oil recyclers shall immediately clean up and properly dispose of any spills of used oil consistent with Chapter 327 of this title (relating to Spill Prevention and Control), particularly §327.4(b)(2) of this title (relating to Reportable Quantities).</content><note type="source"><p>Source Note: The provisions of this §324.15 adopted to be effective March 6, 1996, 21 TexReg 2393; amended to be effective August 8, 1999, 24 TexReg 5882; amended to be effective February 21, 2013, 38 TexReg 973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c324/scA/s324.16"><num value="324.16">§324.16</num><heading>Polychlorinated Biphenyls (PCBs)</heading><content>The commission incorporates by reference the rules for burning used oil containing PCBs in 40 Code of Federal Regulations Part 279 (CFR) (Table 1) and in 40 CFR §761.20(e).</content><note type="source"><p>Source Note: The provisions of this §324.16 adopted to be effective March 6, 1996, 21 TexReg 2393; amended to be effective August 8, 1999, 24 TexReg 5882; amended to be effective February 21, 2013, 38 TexReg 973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c324/scA/s324.21"><num value="324.21">§324.21</num><heading>Suspension or Revocation of Registration</heading><content>(a) The commission may suspend or revoke a registration for:(1) failure to maintain complete and accurate records;(2) alteration of any record, except justified and documented corrections;(3) delivery of used oil to an unregistered entity;(4) failure to comply with this rule or an order issued by the commission;(5) failure to submit required reports;(6) failure to maintain financial assurance; or(7) failure to reasonably perform the used oil activities for which the registration was issued.(b) A registration shall be suspended for a period of one year. However, depending upon the seriousness of the offense(s), the time of suspension may be increased or decreased. A registration is revoked automatically on a second suspension. If the registration is suspended or revoked, a facility must not possess or accept used oil regulated under this rule.(c) The holder of a revoked used oil registration may reapply for registration after a period of at least one year. If a registration is revoked by the commission a second time, the revocation shall be permanent.(d) The procedure for an appeal of a suspension or revocation of registration is:(1) An opportunity for a formal hearing on the suspension or revocation of registration may be requested in writing by certified mail, return receipt requested. The request must be postmarked within 20 days after a notice of proposed suspension or revocation of registration has been sent to the last known address of the applicant.(2) An opportunity for a formal hearing may be requested in writing by the applicant by certified mail, return receipt requested. The request must be postmarked within 20 days after a notice of denial of registration has been sent to the last known address of the applicant. If the registration is denied, a person must not possess used oil regulated under this rule.(3) The formal hearing under this paragraph shall be in accordance with the requirements of §305.68 of this title (relating to Action and Notice of Petition for Revocation or Suspension).</content><note type="source"><p>Source Note: The provisions of this §324.21 adopted to be effective March 6, 1996, 21 TexReg 2393; amended to be effective August 8, 1999, 24 TexReg 5882.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c324/scA/s324.22"><num value="324.22">§324.22</num><heading>Soil Remediation Requirements for Used Oil Handlers</heading><content>(a) This section applies to transporters of used oil who are seeking registration under this chapter. It also applies to owners and operators of used oil transfer, processing, rerefining, and off-specification used oil burning facilities referred to as "used oil handlers." It does not apply to a used oil handler which is owned or otherwise effectively controlled by the owners or operators where the used oil is generated.(b) Used oil handlers, subject to the soil remediation requirements of subsection (c) or (d) of this section, and transporters of used oil, must meet the requirements of Chapter 37, Subchapter L of this title (relating to Financial Assurance for Used Oil Recycling).(c) Used oil handlers meeting the requirements of this subsection must provide financial assurance for soil remediation in the amounts specified. A used oil handler must, within 30 days after an increase in the active area of the facility which results in a higher financial assurance requirement, provide for increased financial assurance. Additionally, a used oil handler must, at a minimum, update its financial assurance annually to cover any increased cost due to inflation and to account for any other appropriate adjustments, including a lower financial assurance amount. The active area of the facility is the earthen area at the facility over which any transportation, storage, or processing of used oil occurs. Records demonstrating the size of the active area of the facility and related financial assurance are to be maintained in the facility's operating record; however, the original financial assurance mechanism must be submitted to the commission per §37.2015 of this title (relating to Submission of Documents). The amount required for financial assurance is:(1) for a facility with an active area of over 1,000 square feet up to 10,000 square feet, $410 for each 1,000-square-foot increment;(2) for a facility with an active area of over 10,000 square feet up to 100,000 square feet, $4,100 for each 10,000-square-foot increment;(3) for a facility with an active area of over 100,000 square feet up to 1 million square feet, $41,000 for each 100,000 square-foot increment and $4,100 for each 10,000 square-foot increment;(4) for a facility with an active area of over 1 million square feet, $410,000 for each 1-million-square foot increment, $41,000 for each 100,000 square-foot increment, and $4,100 for each 10,000 square-foot increment; or(d) Used oil handlers may meet the following alternate requirements.(1) Used oil handlers must:(A) annually provide a certification statement to the executive director that the used oil handler is in compliance with the applicable requirements of this chapter; and(B) obtain certification from a Registered Professional Engineer or other qualified independent professional that the used oil facility units have been designed and constructed in accordance with appropriate design standards, and that the units exhibit mechanical integrity. Such a certification must be obtained for each unit added to the facility, and for each unit that has undergone repair to restore mechanical integrity, within 90 days of the addition or completion of repair;(2) Used oil handlers must ensure that spills in quantities of 25 gallons or greater are reported to the agency in accordance with the spill reporting requirements of Chapter 327 of this title (relating to Spill Prevention and Control);(3) Used oil handler facilities must be provided with secondary containment for all areas where used oil is stored, transferred, or otherwise handled, including, but not limited to, loading docks, parking areas, storage areas, and any other areas where shipments of used oil are held for more than 24 hours; and the facility's used oil tanks, containers, and secondary containment must be constructed, operated, and maintained to conform to the requirements of Title 40 Code of Federal Regulations §§264.174, 264.193(c)-(f), and 264.195(b), as if the used oil were hazardous waste, or to conform to the following:(A) the secondary containment must be:(i) stationary;(ii) constructed of non-earthen material (e.g., concrete);(iii) maintained free of cracks, gaps, or holes; and(iv) overlain or underlain with a synthetic liner at least 40 mils thick;(B) the secondary containment must:(i) be large enough to contain a catastrophic spill of 100% of the capacity of the largest used oil storage, transfer, or other handling equipment or device; and(ii) have at least 12 inches of freeboard or sufficient freeboard to hold the precipitation which would be collected, including any run-on or infiltration of precipitation, as a result of a 25-year, 24-hour rainfall event;(C) the secondary containment system must prevent the release of used oil or other accumulated liquid from the secondary containment system to the soil, ground water, or surface water until removed;(D) used oil or other accumulated liquid must be removed from the secondary containment system within 24 hours from discovery, or in as timely manner as possible;(4) Used oil handlers must provide spill response capability to adequately respond to a catastrophic spill of 100% of the capacity of the largest used oil storage, transfer, or other handling equipment or device, plus 10% of the remaining storage capacity; and(5) Used oil handlers must meet the requirements of subsection (c) of this section, but the amount of financial assurance provided is 10% of the amount that would otherwise be required under subsection (c).(e) As required, processors or re-refiners who store or process used oil in aboveground tanks must, at closure of a tank system, demonstrate financial assurance in the amount of the cost to comply with the closure requirements of 40 CFR §279.54(h). If the used oil handler cannot demonstrate that all contaminated soils are removed or decontaminated as required in 40 CFR §279.54(h), the used oil handler must further demonstrate financial assurance in the amount required to cover the soil and perform post closure in accordance with the closure and post closure care requirements that apply to hazardous waste landfills under 40 CFR §§265.310, 265.117-265.120, and 265.145.</content><note type="source"><p>Source Note: The provisions of this §324.22 adopted to be effective March 17, 1998, 23 TexReg 2822; amended to be effective August 8, 1999, 24 TexReg 5882; amended to be effective March 21, 2000, 25 TexReg 2376.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c325"><num value="325">CHAPTER 325</num><heading>HAZARDOUS SUBSTANCES INVENTORY</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c325/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c325/sc/s325.1"><num value="325.1">§325.1</num><heading>General Provisions</heading><content>(a) Purpose. The purpose of this chapter is to provide facility operators with specific criteria needed to comply with the Manufacturing Facility Community Right-to-Know Act, Texas Health and Safety Code (THSC), Chapter 505; the Public Employer Community Right-to-Know Act, THSC, Chapter 506; and the Nonmanufacturing Facilities Community Right-to-Know Act, THSC, Chapter 507.(b) Scope. This chapter is applicable to operators of all facilities covered by THSC, Chapters 505, 506, or 507.(c) Compatibility with Federal Laws. In order to avoid confusion among manufacturing facilities, public facilities, nonmanufacturing facilities, and persons living in this state, the Texas Commission on Environmental Quality shall implement the Manufacturing Facility Community Right-To-Know Act, the Public Employer Community Right-to-Know Act, and the Nonmanufacturing Facilities Community Right-to-Know Act compatibly with the federal Emergency Planning and Community Right-To-Know Act (EPCRA), which is also known as the Superfund Amendments and Reauthorization Act of 1986 (SARA), Title III (42 United States Code (USC), §§11001 et seq. ), and related regulations (40 Code of Federal Regulations (CFR) Parts 355 -370), promulgated by the United States Environmental Protection Agency (EPA).(d) Applicability. This rule does not apply to:(1) any hazardous waste, as that term is defined by the federal Resource Conservation and Recovery Act (RCRA) of 1976, as amended (42 USC, §§6901 et seq. ), when subject to regulations issued under RCRA by the EPA;(2) tobacco or tobacco products;(3) wood or wood products in the same form and concentration as is distributed to the general public;(4) any substance that meets the definition of an article, as defined in this section;(5) food, drugs, cosmetics, or alcoholic beverages in a retail food sale establishment that are packaged for sale to consumers;(6) food, drugs, or cosmetics intended for personal consumption by an employee while in the facility;(7) any consumer product or hazardous substance, as those terms. are defined in the Consumer Product Safety Act (15 USC, §§2051 et seq. ) and Federal Hazardous Substances Act (15 USC, §§1261 et seq. ), respectively, if the employer can demonstrate it is used in the facility in the same manner as normal consumer use and if the use results in a duration and frequency of exposure that is not greater than exposures experienced by consumers;(8) any drug, as that term is defined by the Federal Food, Drug, and Cosmetic Act (21 USC, §§301 et seq. ), when it is in solid, final form for direct administration to the patient, such as tablets or pills;(9) the transportation of any substance or chemical subject to this chapter; (10) radioactive waste;(11) a hazardous substance in a sealed package that is received and subsequently sold or transferred in that package if:(A) the seal remains intact while the substance is in the facility;(B) the substance does not remain in the facility longer than five working days; and(C) the substance is not an extremely hazardous substance at or above the threshold planning quantity or 500 pounds, whichever is less, as listed by the EPA in 40 CFR, Part 355, Appendices A and B;(12) any substance to the extent it is used in a research laboratory or a hospital or other medical facility under the direct supervision of a technically qualified individual, as defined in the section;(13) any substance to the extent it is being used in routine agricultural operations or is a fertilizer that is held for sale by a retailer to the ultimate consumer in its final form; and(14) ionizing and nonionizing radioactive material;(e) Severability. Should any section or subsection in this subchapter be found to be void for any reason, such finding shall not affect any other sections.</content><note type="source"><p>Source Note: The provisions of this §325.1 adopted to be effective November 26, 2020, 45 TexReg 8348.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c325/sc/s325.2"><num value="325.2">§325.2</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:(1) 505 Act--The Manufacturing Facility Community Right-To-Know Act, Texas Health and Safety Code, Chapter 505.(2) 506 Act--The Public Employer Community Right-To-Know Act, Texas Health and Safety Code, Chapter 506.(3) 507 Act--The Nonmanufacturing Facilities Community Right-To-Know Act, Texas Health and Safety Code, Chapter 507.(4) Appropriate facility identifiers--A physical location identification which provides a physical street address or other location identifiers, which are sufficient for emergency planning purposes and for data management by the commission.(5) Article--A manufactured item:(A) that is formed to a specific shape or design during manufacture;(B) that has end-use functions dependent in whole or in part on its shape or design during end use; and(C) that does not release, or otherwise result in exposure to, a hazardous chemical under normal conditions of use.(6) Current Tier II threshold--(A) A quantity which is assigned to a hazardous or extremely hazardous substance in the most recent version of the federal Emergency Planning and Community Right-to-Know Act and related regulations, and which determines whether a hazardous or extremely hazardous substance must be included on a Tier II Report.(B) For retail gas stations engaged in selling gasoline and/or diesel fuels principally to the public for motor vehicle use, the threshold is 75,000 gallons for all grades of gasoline combined and 100,000 gallons for diesel. The gasoline and/or diesel must be stored entirely in underground tanks and must be in compliance with Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks).(7) Commission--The Texas Commission on Environmental Quality. (8) EPCRA or SARA, Title III--The federal Emergency Planning and Community Right-To-Know Act, also known as the Superfund Amendments and Reauthorization Act of 1986, Title III, 42 United States Code, §§11001 - 11050, and regulations promulgated by the United States Environmental Protection Agency in 40 Code of Federal Regulation Parts 355 - 370.(9) Executive Director--The executive director of the Texas Commission on Environmental Quality.(10) Extremely Hazardous Substance (EHS)--Any substance as defined in the federal Emergency Planning and Community Right-to-Know Act, 42 United States Code, §11002, or listed by the United States Environmental Protection Agency in 40 Code of Federal Regulations Part 355, Appendices A and B.(11) Facility--All buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and that are owned or operated by the same person or by any person who controls, is controlled by, or is under common control with that person. Each facility will be assigned an identification number according to commission procedures.(12) Facility operator--The person who controls the day-to-day operations of the facility and which is held responsible for the facility's regulatory responsibilities under the federal Occupational Safety and Health Act of 1970 (29 United States Code, §§651 et seq. ), or the Texas Hazard Communication Act (Texas Health and Safety Code, Chapter 502). The facility operator will be assigned an identification number according to commission procedures.(13) Fire chief--The administrative head of the fire department, including a volunteer fire department, having jurisdiction over a facility.(14) Hazardous chemical or substance--A substance given that term by 29 Code of Federal Regulations §1910.1200(c).(15) Headquarters facility--Either the facility itself when the facility is staffed more than 20 hours per week, or, for facilities which are staffed 20 hours per week or less, the headquarters facility is an office which is staffed full time by the facility operator and which serves as the central office for staff who are responsible for overseeing the operations of the facility.(16) Latitude and longitude--A mapping coordinate system, designated in units to four decimal degrees, by means of which a location can be determined and described. (17) Local Emergency Planning Committee (LEPC)--A group of individuals representing a designated emergency planning district and whose membership on the committee has been approved by the Texas State Emergency Response Commission as meeting the requirements of federal Emergency Planning and Community Right-to-Know Act, §11001.(18) Manufacturing facilities--Facilities in North American Industrial Classification System (NAICS) Codes 31 - 33.(19) Nonmanufacturing facilities--Facilities, other than those facilities operated by the state or political subdivisions of the state, and which are classified in North American Industrial Classification System (NAICS) Codes 11 - 23 or NAICS Codes 42 - 92.(20) North American Industrial Classification System (NAICS) Code--The six-digit number which describes a facility's primary activity, which is determined by its principal product or group of products produced. The NAICS Codes were developed jointly by the United States (U.S.), Canada, and Mexico to provide comparability in statistics about business activity across North America and has replaced the U.S. Standard Industrial Classification (SIC) system. If a facility does not have a NAICS Code assigned by the Texas Workforce Commission, then the commission must be consulted for assistance in determining the correct code.(21) Public employer facilities--Facilities operated by: (A) state and political subdivisions of the state, including state, county, and municipal agencies; (B) public schools, colleges, and universities; (C) river authorities and publicly owned utilities; (D) volunteer emergency service organizations; or (E) other similar employers who are not covered by the federal Occupational Safety and Health Act of 1970 (Pub. L. No. 91-596). (22) Research laboratory--A laboratory that engages in only research or quality control operations. Chemical specialty product manufacturing laboratories, full scale pilot plant operation laboratories that produce products for sale, and service laboratories are not research laboratories.(23) Technically qualified individual--An individual with a professional education and background working in the research or medical fields, such as a physician, a registered nurse, or an individual holding a college bachelor's degree in science.(24) Tier II Report--Provides specific information on the amounts and locations of hazardous and extremely hazardous substances present at a facility, including:(A) the data elements required by the federal Emergency Planning and Community Right-to-Know Act and related regulations promulgated by the United States Environmental Protection Agency, in regards to Tier II inventory information; and(B) the name, mailing address, email address, and phone number of a Billing Contact.(25) Tier II Initial Report--Provided when one or more hazardous or extremely hazardous substances meet or exceed the current Tier II threshold for the first time, but which were not included on the previously submitted Tier II Annual Report. Includes all reportable hazardous or extremely hazardous substances from the previously submitted Tier II Annual Report.(26) Tier II Annual Report--Provides the information for all hazardous or extremely hazardous substances present at a facility at any one time during the previous calendar year in quantities that met or exceeded the then current Tier II thresholds.(27) Tier II Update Report--Provides new information on any required data element which was previously reported.(28) Local Fire Department--The fire department with jurisdiction over a facility.</content><note type="source"><p>Source Note: The provisions of this §325.2 adopted to be effective November 26, 2020, 45 TexReg 8348.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c325/sc/s325.3"><num value="325.3">§325.3</num><heading>Reporting Requirements</heading><content>(a) Tier II Report.(1) A facility operator covered by the Manufacturing Facility Community Right-To-Know Act (Texas Health and Safety Code (THSC), Chapter 505 (505 Act)), the Public Employer Community Right-To-Know Act (THSC, Chapter 506 (506 Act)), or the Nonmanufacturing Facilities Community Right-To-Know Act (THSC, Chapter 507 (507 Act)) shall compile, submit, and maintain a Tier II Report in a format acceptable to the commission, the appropriate fire department, and the appropriate Local Emergency Planning Committee (LEPC).(2) Facility operators shall submit a Tier II Annual Report that provides the information for all hazardous substances and extremely hazardous substances present at a facility at any one time during the previous calendar year, in quantities that met or exceeded the then current Tier II thresholds.(3) Facility operators shall submit a Tier II Initial Report when the facility:(A) begins operation and acquires one or more hazardous or extremely hazardous substances which meet or exceed any of the current Tier II thresholds;(B) first acquires one or more hazardous or extremely hazardous substances which meet or exceed any of the current Tier II thresholds, and which were not reported on the most recently submitted Tier II Annual Report; or(C) determines that one or more hazardous or extremely hazardous substances which meet or exceed any of the current Tier II thresholds were omitted from the most recently submitted Tier II Report.(4) Facility operators shall submit a Tier II Update Report when new information about any previously reported data on the most recent Tier II Report is discovered.(5) Reporting timelines.(A) A facility operator shall submit a Tier II Annual Report between January 1 and March 1, for the previous calendar year.(B) A facility operator shall submit a Tier II Initial Report:(i) within 72 hours if the facility meets the definition of an ammonium nitrate storage facility; or(ii) within 90 days if the facility does not meet the definition of an ammonium nitrate storage facility.(C) A facility operator shall submit a Tier II Update Report:(i) within 72 hours if the facility is an ammonium nitrate storage facility and has a change in the chemical weight range of previously reported ammonium nitrate; or(ii) within 90 days if the facility is not an ammonium nitrate storage facility, or if the facility is an ammonium nitrate storage facility and the change in chemical weight range is a substance other than ammonium nitrate.(6) Each time a facility operator is required to submit a Tier II Report, it shall submit within the appropriate timeframe, and in an acceptable format, to:(A) the commission;(B) the appropriate fire department; and(C) the appropriate LEPC.(7) A facility operator shall maintain at the headquarters facility a copy of the facility's most recently submitted Tier II Report until such time as the facility operator is required to submit another Tier II Report.(8) A Tier II Report shall include the following appropriate facility identifiers:(A) for a facility located within an incorporated area, the location description must provide the following information:(i) the street address, including street name and number;(ii) the name of the city;(iii) the zip code;(iv) the name of the county; and(v) the latitude and longitude coordinates; and(B) for a facility located in an unincorporated area, the location description must include:(i) the street address, including street name and number, or general driving directions with street names if available;(ii) the name of the city, or the nearest city;(iii) the zip code, or the nearest zip code;(iv) the name of the county; and(v) the latitude and longitude coordinates.(b) Direct citizen access to Tier II Information. A manufacturing or public employer facility must provide within 10 working days of the date of receipt of a citizen's request under THSC, §505.007(a), or THSC, §506.007(a), a copy of the modified Tier II Report using a 500-pound threshold for each hazardous chemical at the facility. Except as otherwise provided in this section, such documents shall be furnished or mailed to the citizen requesting the information. The modified Tier II Report must include completed chemical description blocks for each chemical reported.</content><note type="source"><p>Source Note: The provisions of this §325.3 adopted to be effective November 26, 2020, 45 TexReg 8348.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c325/sc/s325.4"><num value="325.4">§325.4</num><heading>Compliance and Fees</heading><content>(a) Complaints and investigations.(1) The executive director or his designated representatives may enter a facility at reasonable times to conduct compliance inspections. Advance notice is not required. It is a violation of this chapter for a person to interfere with, deny, or delay an inspection or investigation conducted by a commission representative.(2) The executive director or his designated representative shall investigate in a timely manner a complaint relating to an alleged violation of the Manufacturing Facility Community Right-To-Know Act (Texas Health and Safety Code (THSC), Chapter 505 (505 Act)), the Public Employer Community Right-To-Know Act (THSC, Chapter 506 (506 Act)), the Nonmanufacturing Facilities Community Right-To-Know Act (THSC, Chapter 507 (507 Act)) or this chapter. An inspection based on a complaint is not limited to the specific allegations of the complaint. A facility operator who refuses to allow such an investigation shall be in violation of this chapter.(3) The commission may find multiple violations by a facility operator based on specific requirements of the 505 Act, the 506 Act, the 507 Act or this chapter.(4) Upon request from a representative of the executive director, a facility operator shall make or allow photocopies of documents to be made and permit the representative to take photographs to verify the compliance status of the employer. Such requests may be made during a compliance inspection or a follow-up request after an inspection.(b) Enforcement.(1) A facility operator may not violate the 505 Act, the 506 Act, the 507 Act, commission rules, or an order issued by the commission.(2) The commission shall enforce the rules in this chapter under Texas Water Code, Chapter 7, including by issuing an administrative order that assesses a penalty or orders a corrective action.(c) Fees.(1) Fees for Tier II Annual Reports and Tier II Initial Reports are based on the number of hazardous or extremely hazardous substances present at each facility.(A) For a manufacturing facility:(i) $100 for each facility having no more than 25 hazardous or extremely hazardous substances;(ii) $200 for each facility having no more than 50 hazardous or extremely hazardous substances;(iii) $300 for each facility having no more than 75 hazardous or extremely hazardous substances;(iv) $400 for each facility having no more than 100 hazardous or extremely hazardous substances; or(v) $500 for each facility having more than 100 hazardous or extremely hazardous substances.(B) For a public employer facility:(i) $50 for each facility having no more than 75 hazardous or extremely hazardous substances; or(ii) $100 for each facility having more than 75 hazardous or extremely hazardous substances; and(iii) Tier II Initial Reports for public employers will not be charged a fee.(C) For a nonmanufacturing facility:(i) $50 for each facility having no more than 75 hazardous or extremely hazardous substances; or(ii) $100 for each facility having more than 75 hazardous or extremely hazardous substances.(2) For the purpose of minimizing fees, the department shall provide for consolidated submission fees for Tier II Reports containing multiple facilities if:(A) each of the consolidated facilities within the Tier II Report contain fewer than 25 hazardous or extremely hazardous substances;(B) the Tier II Report is submitted by a single facility operator; and(C) the number of facilities within the Tier II Report to be consolidated are:(i) for manufacturing facilities, each two facilities; or(ii) for nonmanufacturing facilities, each three facilities; or(iii) for public employer facilities, each seven facilities.(3) If a facility has multiple North American Industrial Classification System codes that fall within both the manufacturing and nonmanufacturing range, the facility will be considered a manufacturing facility for fee assessing purposes.(4) Fees will be invoiced by the commission and shall be paid in accordance with Chapter 12 of this title (relating to Payment of Fees).</content><note type="source"><p>Source Note: The provisions of this §325.4 adopted to be effective November 26, 2020, 45 TexReg 8348.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c326"><num value="326">CHAPTER 326</num><heading>MEDICAL WASTE MANAGEMENT</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c326/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL INFORMATION</heading><section identifier="/us/state/tx/tac/t30/p1/c326/scA/s326.1"><num value="326.1">§326.1</num><heading>Purpose and Applicability</heading><content>(a) The regulations promulgated in this chapter cover aspects of medical waste management from medical waste facilities under the authority of the commission and are based primarily on the stated purpose of Texas Health and Safety Code (THSC), Chapter 361. The provisions of this chapter apply to any person as defined in §3.2 of this title (relating to Definitions) involved in any aspect of the management and control of medical waste as defined in THSC, §361.003(18-a) and medical waste facilities and activities including storage, collection, handling, transportation, and processing. Furthermore, these regulations apply to any person that by contract, agreement, or otherwise arranges to process, store, or dispose of, or arranges with a transporter for transport to process, store, or dispose of, medical waste owned or possessed by the person, or by any other person or entity.(1) Permits and registrations issued by the commission and its predecessors, that existed before this chapter became effective remain valid for the later of two years from the effective date of this chapter or until a final decision is made on a timely filed application for an existing authorization to comply with this chapter. Authorizations under the existing Chapter 330 rules must be updated by filing a new application within two years of the effective date of this chapter to comply with the provisions of this chapter. Registrations by rule, subject to annual renewal, remain in effect and must renew under this chapter. The executive director is authorized to extend this deadline based on an authorized entity making a request supported by good cause. Applications for an existing permit or registration to comply with this chapter will not be subject to the standard procedures for processing applications, including any requirements for notice and public participation. Authorizations, other than permits, registrations, or registrations by rule, that existed before the adoption of this chapter became effective, remain valid and are subject to these rules when they become effective.(2) A person that has a pending application for the management of medical waste as of the effective date of this chapter shall be considered under the former rules of Chapter 330 of this title (relating to Municipal Solid Waste) unless the applicant elects otherwise. Permits or Registrations issued under the former rules remain in effect for the later of two years from the effective date of this chapter or until the commission makes a final decision on an application to comply with this chapter.(3) Modification requests submitted after the effective date of this chapter shall be prepared and submitted in accordance with the provisions of §305.70 of this title (relating to Municipal Solid Waste Permit and Registration Modifications) and in accordance with this chapter. Requests to modify buffer zones or operating hours under this chapter will be processed as modifications that do not require notice. Modification requests pending on the effective date of this chapter may be prepared and submitted in accordance with the provisions of §305.70 of this title and in accordance with the former rules in Chapter 330 of this title unless the applicant elects otherwise.(4) The requirement in §326.23(e) of this title (relating to Shipping) to provide notice to landfills that waste shipments include treated medical waste applies to existing authorizations regardless of any conflicting language in those authorizations or rules in Chapter 330 of this title.(b) This chapter does not apply to waste that is subject to 25 TAC Chapter 289 (relating to Radiation Control).</content><note type="source"><p>Source Note: The provisions of this §326.1 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scA/s326.3"><num value="326.3">§326.3</num><heading>Definitions</heading><content>Unless otherwise defined in this chapter, those definitions of words, terms, and abbreviations used in this chapter which are defined in 25 TAC §1.132 and §133.2 (relating to Definitions) apply. Should the definitions found in 25 TAC §1.132 change, such changes shall prevail over the definitions found in this section. Unless otherwise noted, all terms contained in this section shall be defined by their plain meaning. This section contains definitions for terms that appear throughout this chapter. Additional definitions may appear in the specific section to which they apply. The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.(1) Active life--The period of operation beginning with the initial receipt of medical waste and ending at certification/completion of closure activities in accordance with §326.71 of this title (relating to Registration Application Contents).(2) Affiliated facility--A health care-related facility that generates a medical waste that is routinely stored, processed, or disposed of on a shared basis in an integrated medical waste management unit owned, operated by a hospital, and located within a contiguous health care complex.(3) Affiliated with--A person, "A," is affiliated with another person, "B," if either of the following two conditions applies:(A) "A" owns or controls more than 20% of the voting interest, fair market value, profits, proceeds, or capital gains of "B;" or (B) "B" owns or controls more than 20% of the voting interest, fair market value, profits, proceeds, or capital gains of "A."(4) Buffer zone--A zone free of medical waste processing and storage activities within and adjacent to a facility boundary (registration boundary) on property owned or controlled by the owner or operator of the facility.(5) Collection--The act of removing waste (or materials that have been separated for the purpose of recycling) for transport elsewhere.(6) Commence physical construction--The initiation of physical on-site construction on a site for which an application to authorize a medical waste management facility is pending, the construction of which requires approval of the commission. Construction of actual facility and necessary appurtenances requires approval of the commission, but other features not specific to medical waste management are allowed without commission approval.(7) Compacted waste--Waste that has been reduced in volume by a collection vehicle or other means with the exception of waste that has been reduced in volume by a small, in-house compactor device owned and/or operated by the generator of the waste.(8) Conditionally exempt small quantity generator--A person that generates no more than 220 pounds of hazardous waste in a calendar month.(9) Container--Any portable device in which a material is stored, transported, or processed.(10) Contaminated water--Water that has come into contact with waste.(11) Discharge--Includes deposit, conduct, drain, emit, throw, run, allow to seep, or otherwise release, or to allow, permit, or suffer any of these acts or omissions.(12) Facility--All contiguous land and structures, other appurtenances, and improvements on the land used for the storage or processing of medical waste.(13) Garbage--Solid waste consisting of putrescible animal and vegetable waste materials resulting from the handling, preparation, cooking, and consumption of food, including waste materials from markets, storage facilities, handling, and sale of produce and other food products.(14) Generator--Any person, by site or location, that produces medical waste to be shipped to any other person, or whose act or process produces a medical waste or first causes it to become regulated.(A) Small quantity generator (SQG)--A medical waste generator that produces 50 pounds or less per month of medical waste.(B) Large quantity generator (LQG)--A medical waste generator that produces more than 50 pounds per month of medical waste.(15) Hazardous waste--Any solid waste identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 United States Code, §§6901 et seq., as amended.(16) Incinerator of Hospital/medical/infectious waste--Any device that combusts any amount of hospital waste and/or medical/infectious waste as defined under §113.2070(15) of this title (relating to Definitions).(17) Incineration--The process of burning special waste from health care-related facilities in an incinerator as defined in Chapter 101 of this title (relating to General Air Quality Rules) under conditions in conformance with standards prescribed in Chapter 111 of this title (relating to Control of Air Pollution from Visible Emissions and Particulate Matter).(18) Industrial solid waste--Solid waste resulting from or incidental to any process of industry or manufacturing, or mining or agricultural operations.(19) Inert material--A natural or man-made non-putrescible, non-hazardous material that is essentially insoluble, usually including, but not limited to, soil, dirt, clay, sand, gravel, brick, glass, concrete with reinforcing steel, and rock.(20) License--(A) A document issued by an approved county authorizing and governing the operation and maintenance of a medical waste facility used to process or store medical waste, other than hazardous waste, in an area not in the territorial limits or extraterritorial jurisdiction of a municipality.(B) An occupational license as defined in Chapter 30 of this title (relating to Occupational Licenses and Registrations).(21) Liquid waste--Any waste material that is determined to contain "free liquids" as defined by United States Environmental Protection Agency (EPA) Method 9095 (Paint Filter Test), as described in "Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods" (EPA Publication Number SW-846).(22) Manifest--The waste shipping document originated and signed by the generator or offeror in accordance with §326.53(b)(8) and (9) of this title (relating to Transporters) and any other applicable requirements under 49 Code of Federal Regulations §172.202.(23) Medical waste--Treated and untreated special waste from health care-related facilities that is comprised of animal waste, bulk blood, bulk human blood, bulk human body fluids, microbiological waste, pathological waste, and sharps as those terms are defined in 25 TAC §1.132 (relating to Definitions) from the sources specified in 25 TAC §1.134 (relating to Application), as well as regulated medical waste as defined in 49 Code of Federal Regulations §173.134(a)(5), except that the term does not include medical waste produced on a farm or ranch as defined in 34 TAC §3.296(f) (relating to Agriculture, Animal Life, Feed, Seed, Plants, and Fertilizer), nor does the term include artificial, nonhuman materials removed from a patient and requested by the patient, including, but not limited to, orthopedic devices and breast implants. Health care-related facilities do not include:(A) single or multi-family dwellings; and(B) hotels, motels, or other establishments that provide lodging and related services for the public.(24) Municipal hazardous waste--Any municipal solid waste or mixture of municipal solid wastes that has been identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency.(25) Municipal solid waste--Solid waste resulting from or incidental to municipal, community, commercial, institutional, and recreational activities, including garbage, rubbish, ashes, street cleanings, dead animals, abandoned automobiles, and all other solid waste other than industrial solid waste.(26) New medical waste management facility--A medical waste facility that has not begun construction.(27) Notification--The act of filing information with the commission for specific solid waste management activities that do not require a permit or a registration, as determined by this chapter. (28) Nuisance--Waste that is stored, processed, or disposed of in a manner that causes the pollution of the surrounding land, the contamination of groundwater or surface water, the breeding of insects or rodents, or the creation of odors adverse to human health, safety, or welfare. A nuisance is further set forth in Texas Health and Safety Code, Chapters 341 and 382; Texas Water Code, Chapter 26; and any other applicable regulation or statute.(29) On-site--Medical waste managed on property that is owned or effectively controlled by one entity and that is within 75 miles of the point of generation or generated at an affiliated facility shall be considered to be managed on-site.(30) Operate--To conduct, work, run, manage, or control.(31) Operating hours--Those hours which the facility is open to receive waste, process, and transport waste or material.(32) Operating record--All plans, submittals, and correspondence for a medical waste facility required under this chapter; required to be maintained at the facility or at a nearby site acceptable to the executive director.(33) Operation--A medical waste site or facility is considered to be in operation from the date that waste is first received or deposited at the medical waste site or facility until the date that the site or facility is properly closed in accordance with this chapter.(34) Operator--The person(s) responsible for operating the facility or part of a facility.(35) Owner--The person that owns a facility or part of a facility.(36) Permit--See the definition of permit contained in §3.2 of this title (relating to Definitions).(37) Physical construction--The first placement of permanent construction on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, the laying of underground pipework, or any work beyond the stage of excavation. Physical construction does not include land preparation, such as clearing, grading, excavating, and filling; nor does it include the installation of roads and/or walkways. Physical construction includes issuance of a building or other construction permit, provided that permanent construction commences within 180 days of the date that the building permit was issued.(38) Pollutant--Contaminated dredged spoil, solid waste, contaminated incinerator residue, sewage, sewage sludge, munitions, chemical wastes, or biological materials discharged into water.(39) Pollution--The man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of an aquatic ecosystem.(40) Processing--Activities including, but not limited to, the extraction of materials, transfer, volume reduction, conversion to energy, or other separation and preparation of solid waste for reuse or disposal, including the treatment or neutralization of waste, designed to change the physical, chemical, or biological character or composition of any waste to neutralize such waste, or to recover energy or material from the waste, or render the waste safer to transport, store, dispose of, or make it amenable for recovery, amenable for storage, or reduced in volume.(41) Public highway--The entire width between property lines of any road, street, way, thoroughfare, bridge, public beach, or park in this state, not privately owned or controlled, if any part of the road, street, way, thoroughfare, bridge, public beach, or park is opened to the public for vehicular traffic, is used as a public recreational area, or is under the state's legislative jurisdiction through its police power.(42) Putrescible medical waste--Medical waste that contains organic matter capable of being decomposed by microorganisms and of such a character and proportion as to cause odors or gases or are capable of providing food for or attracting birds, animals, and disease vectors.(43) Recycling--A process by which materials that have served their intended use or are scrapped, discarded, used, surplus, or obsolete are collected, separated, or processed and returned to use in the form of raw materials in the production of new products.(44) Registration--The act of filing information with the commission for review and approval for specific solid waste management activities that do not require a permit, as determined by this chapter.(45) Regulated hazardous waste--A solid waste that is a hazardous waste as defined in 40 Code of Federal Regulations (CFR) §261.3 and that is not excluded from regulation as a hazardous waste under 40 CFR §261.4(b), or that was not generated by a conditionally exempt small quantity generator.(46) Rubbish--Non-putrescible solid waste (excluding ashes), consisting of both combustible and noncombustible waste materials. Combustible rubbish includes paper, rags, cartons, wood, excelsior, furniture, rubber, plastics, brush, or similar materials; noncombustible rubbish includes glass, crockery, tin cans, aluminum cans, and similar materials that will not burn at ordinary incinerator temperatures (1,600 degrees Fahrenheit to 1,800 degrees Fahrenheit).(47) Run-off--Any rainwater or other liquid that drains over land from any part of a facility.(48) Run-on--Any rainwater or other liquid that drains over land onto any part of a facility.(49) Site--Same as facility.(50) Site operating plan--A document that provides general instruction for facility management and operating personnel throughout the operating life of the facility in a manner consistent with the engineer's design and the commission's regulations to protect human health and the environment and prevent nuisances.(51) Solid waste--Garbage, rubbish, refuse, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, municipal, commercial, mining, and agricultural operations and from community and institutional activities. The term does not include:(A) solid or dissolved material in domestic sewage, or solid or dissolved material in irrigation return flows, or industrial discharges subject to regulation by permit issued under Texas Water Code, Chapter 26;(B) soil, dirt, rock, sand, and other natural or man-made inert solid materials used to fill land if the object of the fill is to make the land suitable for the construction of surface improvements; or(C) waste materials that result from activities associated with the exploration, development, or production of oil or gas or geothermal resources and other substance or material regulated by the Railroad Commission of Texas under Texas Natural Resources Code, §91.101, unless the waste, substance, or material results from activities associated with gasoline plants, natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants and is hazardous waste as defined by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as amended (42 United States Code, §§6901 et seq.). (52) Source-separated recyclable material--Recyclable material from those health care-related facilities as listed in 25 TAC §1.134 (relating to Application), that at the point of generation has been separated, collected, and transported separately from medical waste, or transported in the same vehicle as medical waste, but in separate containers or compartments.(53) Storage--The keeping, holding, accumulating, or aggregating of medical waste at the end of which the medical waste is processed, disposed, or stored elsewhere.(A) Pre-collection--that storage by the generator, normally on the generator's premises, prior to initial collection;(B) Post-collection transporter--that storage by a transporter while the medical waste is in transit. Any vehicle inactivity such as not continuing a collection route for a period less than 72 hours is considered a temporary storage period. Exceeding 72 hours of temporary storage will require the operator to obtain a medical waste registration per Subchapter F of this chapter (relating to Operations Requiring a Registration);(C) Post-collection processor--that storage by a processor at a processing facility while the waste is awaiting processing or transfer to another storage, disposal, or recovery facility.(54) Surface water--Surface water as included in water in the state.(55) Tank--A stationary device, designed to contain an accumulation of waste, which is constructed primarily of non-earthen materials (e.g., wood, concrete, steel, and plastic) that provide structural support.(56) Transfer station--A facility used for transferring medical waste from collection vehicles to long-haul vehicles (one transportation unit to another transportation unit). It is not a storage facility such as one where individual residents can dispose of their wastes in bulk storage containers that are serviced by collection vehicles.(57) Transportation unit--A truck, trailer, open-top box, enclosed container, rail car, piggy-back trailer, ship, barge, or other transportation vehicle used to contain medical waste being transported from one geographical area to another.(58) Transporter--A person that collects, conveys, or transports medical waste; does not include a person transporting his or her household waste.(59) Trash--Same as "Rubbish."(60) Treatment--Same as "Processing."(61) Uncompacted waste--Any waste that is not a liquid or a sludge, has not been mechanically compacted by a collection vehicle, has not been driven over by heavy equipment prior to collection, or has not been compacted prior to collection by any type of mechanical device other than small, in-house compactor devices owned and/or operated by the generator of the waste.(62) Unloading areas--Areas designated for unloading, including all storage areas, and other processing areas.(63) Vector--An agent, such as an insect, snake, rodent, bird, or animal capable of mechanically or biologically transferring a pathogen from one organism to another.(64) Water in the state--Groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Gulf of Mexico inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or non-navigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.(65) Waters of the United States--All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide, with their tributaries and adjacent wetlands, interstate waters and their tributaries, including interstate wetlands; all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, and wetlands, the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters that are or could be used by interstate or foreign travelers for recreational or other purposes; from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; that are used or could be used for industrial purposes by industries in interstate commerce; and all impoundments of waters otherwise considered as navigable waters; including tributaries of and wetlands adjacent to waters identified in this paragraph.(66) Wetlands--As defined in Chapter 307 of this title (relating to Texas Surface Water Quality Standards).</content><note type="source"><p>Source Note: The provisions of this §326.3 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scA/s326.5"><num value="326.5">§326.5</num><heading>General Prohibitions</heading><content>No person may cause, suffer, allow, or permit the collection, storage, transportation, processing, or disposal, or the use or operation of a solid waste facility to store, process, or dispose of solid waste in violation of the THSC, or any regulations, rules, permit, license, order of the commission, or in such a manner that causes:(1) the discharge or imminent threat of discharge of medical waste into or adjacent to the waters in the state without obtaining specific authorization for the discharge from the commission;(2) the creation and maintenance of a nuisance; or(3) the endangerment of the human health and welfare or the environment.</content><note type="source"><p>Source Note: The provisions of this §326.5 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scA/s326.7"><num value="326.7">§326.7</num><heading>Other Authorizations</heading><content>(a) Air pollution control. All emission sources resulting from the operation of medical waste facilities shall be abated in a manner that will not cause a condition of air pollution. Owner or operator shall obtain authorization that may be required by local, state and federal agencies.(b) Water pollution control. All liquids resulting from the operation of medical waste facilities shall be disposed of in a manner that will not cause surface water or groundwater pollution. Owner or operator shall provide for the treatment of wastewaters resulting from medical waste management activities and from cleaning and washing. Owners or operators shall ensure that storm water and wastewater management is in compliance with the regulations of the commission.(c) It is also the responsibility of an owner or operator of a facility to obtain any other permits or approvals that may be required by local, state and federal agencies.</content><note type="source"><p>Source Note: The provisions of this §326.7 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c326/scB"><num value="B">SUBCHAPTER B</num><heading>PACKAGING, LABELING AND SHIPPING REQUIREMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c326/scB/s326.17"><num value="326.17">§326.17</num><heading>Identification</heading><content>Prior to packaging, labeling and shipping, health care-related facilities shall identify and segregate medical waste, as defined in §326.3(23) of this title (relating to Definitions), from ordinary rubbish and garbage produced within or by the facilities. Other municipal solid waste may be combined with medical waste or may be identified and segregated as a separate waste stream. Where medical waste and other municipal solid wastes are combined, the combined waste shall be considered to be medical waste.</content><note type="source"><p>Source Note: The provisions of this §326.17 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scB/s326.19"><num value="326.19">§326.19</num><heading>Packaging</heading><content>(a) The generator shall place the container which contains medical waste in an outer container that is rigid, leak resistant, impervious to moisture, of sufficient strength to prevent tearing and bursting under normal conditions of use and handling, and sealed to prevent leakage or as otherwise required by the United States Department of Transportation under regulations set forth in 49 Code of Federal Regulations (CFR) §173.134 and 49 CFR §173.196 which include infectious substances.(b) The generator shall place sharps in a rigid, marked, and puncture-resistant container designed for sharps as described in 49 CFR §173.134.</content><note type="source"><p>Source Note: The provisions of this §326.19 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scB/s326.21"><num value="326.21">§326.21</num><heading>Labeling Containers Excluding Sharps</heading><content>(a) The generator shall conspicuously mark the outer container with a warning legend in English and in Spanish, along with the international symbol for biohazardous material as referenced under 29 Code of Federal Regulations (CFR) §1910.1030(g)(1)(i)(A). The warning must appear on the sides of the container, twice in English and twice in Spanish. The wording of the warning legend shall be: "CAUTION, contains medical waste which may be biohazardous" and "PRECAUCIÓN, contiene desechos medicos que pueden ser peligro biológico" or as otherwise required by the United States Department of Transportation under regulations set forth in CFR §173.134 and 49 CFR §173.196 which include infectious substances.(b) The generator shall affix to each container a label that contains at the minimum the name and address of the generator, and the date of shipment.(c) If the transporter assists with weighing containers and label preparation, the generator shall ensure that the container labels meet the requirements of this section before releasing them to the transporter.(d) The generator shall record the weight or volume on the manifest for reporting and fee purposes. If the generator chooses to use weight, the generator may have the transporter weigh each container for the generator and note the weight on the container label prior to offsite transport. Applicable fees are provided in Subchapter G of this chapter (relating to Fees and Reporting) for each recording method.(e) The generator shall ensure that the transporter affixes to each container a label that contains the name, address, telephone number, and state registration number of the transporter. This information may be printed on the container.(f) The generator shall ensure that the printing on required labels is done in indelible ink with letters at least 0.25 inch in height.(g) If a single label is used to identify the generator and the transporter, the transporter shall ensure the label is affixed to or printed on the container.(h) The requirements of subsections (b) and (e) of this section shall not apply to shipments where the United States Postal Service or an equivalent delivery service is the transporter in accordance with the Mailing Standards of the United States Postal Service, Domestic Mail Manual, incorporated by reference in 39 CFR Part 111.(i) The executive director may waive any or all of the requirements of this section if required to protect the public health and safety from the effects of a natural or man-made disaster.</content><note type="source"><p>Source Note: The provisions of this §326.21 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scB/s326.23"><num value="326.23">§326.23</num><heading>Shipping</heading><content>(a) Generators may transport their own untreated waste or shall release medical waste only to transporters who are registered with the executive director to transport untreated medical waste, as required in §326.53 of this title (relating to Transporters) and in compliance with 49 Code of Federal Regulations §173.6(a)(4).(b) Except for medical waste shipped via First Class or Priority Mail using the United States Postal Service, the generator shall obtain from the transporter a signed manifest for each shipment of medical waste.(c) The generator shall maintain manifests regarding all shipments of untreated medical waste for a period of three years following the date of each shipment. This time period may be extended by the executive director for investigative purposes or in case of enforcement action.(d) Generators and transporters shall maintain accurate and complete electronic or hard copy manifests for shipments of untreated medical waste and make them available for inspection by the executive director. Such manifest records shall be legible, complete and accurate originals or reproduced copies of the same, provided that any copy is authenticated by authorized personnel. The manifests may be available in electronic media with the capability for producing legible, accurate, and complete records for inspections. All documents must be available for viewing and/or copying at time of an inspection. The generator and transporter shall maintain adequate safeguards against tampering with and loss of records.(e) Treated medical waste shipments including sharps or residuals of sharps originating from health care-related facilities shall be accompanied by a written statement to the solid waste landfill that the shipment has been treated by an approved method in accordance with 25 TAC §1.136 (relating to Approved Methods of Treatment and Disposition).(f) Shipments of untreated medical waste shall be stored, processed or deposited only at a facility that has been authorized by the commission to accept untreated medical waste. Untreated medical waste that is transported out of the state must be deposited at a facility that is authorized by the appropriate agency having jurisdiction over such waste.(g) Persons that transport untreated medical waste from Texas to other states or countries or from other states or countries to Texas, or persons that collect or transport waste in Texas but have their principal place of business in another state, shall comply with all applicable requirements of this chapter for such transportation activities. If such persons engage in any activity of managing medical waste in Texas by storage, processing, or disposal, they shall follow the applicable requirements for facility operators of such activities.</content><note type="source"><p>Source Note: The provisions of this §326.23 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c326/scC"><num value="C">SUBCHAPTER C</num><heading>EXEMPT MEDICAL WASTE OPERATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c326/scC/s326.31"><num value="326.31">§326.31</num><heading>Exempt Medical Waste Operations</heading><content>(a) Small quantity generator (SQG) and large quantity generator (LQG) on-site storage facility. A permit, registration, notification, or other authorization is not required for on-site storage of medical waste for a generator that uses a medical waste storage facility only for medical waste generated on-site, so long as:(1) medical waste is stored in a secure manner and location that affords protection from theft, vandalism, inadvertent human or animal exposure, rain, water, and wind; and(2) medical waste is managed so as not to create a nuisance.(b) SQG transporter. A permit, registration, notification, or other authorization is not required for a generator of less than 50 pounds per month of untreated medical waste that transport their own waste to an authorized medical waste storage or processing facility.(c) All generators described in subsections (a) and (b) of this section shall follow the requirements prescribed in Subchapter B of this chapter (relating to Packaging, Labeling and Shipping Requirements) and must obtain any additional transportation authorizations necessary to comply with local, state and federal rules.(d) A permit, registration, notification, or other authorization is not required for medical waste transported by the United States Postal Service or an equivalent delivery service in accordance with the Domestic Mail Manual, incorporated by reference in 39 Code of Federal Regulations Part 111.(e) A person who engages in the transportation of waste within Texas when the transportation neither originates nor terminates in Texas is exempt from the regulations of this chapter, except as to §326.53(b)(6)(A)(i) - (iii) and (B) of this title (relating to Transporters).</content><note type="source"><p>Source Note: The provisions of this §326.31 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c326/scD"><num value="D">SUBCHAPTER D</num><heading>OPERATIONS REQUIRING A NOTIFICATION</heading><section identifier="/us/state/tx/tac/t30/p1/c326/scD/s326.37"><num value="326.37">§326.37</num><heading>General Requirements</heading><content>(a) Generators that are not exempt and that intend to store or process medical waste authorized under this subchapter shall provide written notification to the executive director, and any local pollution agency with jurisdiction that has requested in writing to the commission to be notified that storage or processing activities are planned. The required notifications must be submitted at least 90 days prior to a generator engaging in these activities, except for recycling and other activities as may be specifically exempted. Additional information may be requested to enable the executive director to determine whether such storage or processing is in compliance with the terms of this chapter. This information may include, but is not limited to, type of waste, waste management methods, and facility design. Any information provided under this subsection shall be submitted to the executive director in duplicate with one copy sent directly to the appropriate regional office. A person shall include a statement justifying the facility's eligibility for a notification as established under this section. The executive director is authorized to approve requests to submit this information electronically if the commission develops electronic systems to manage the data.(b) Any person that stores or processes medical waste authorized under this subchapter shall have the continuing obligation to provide prompt written notice to the executive director of any changes or additional information concerning type of waste, waste management methods, facility design plans additional to that reported in subsection (a) of this section authorized in any notification filed with the executive director. Any information provided under this subsection shall be submitted to the executive director in duplicate form with copies sent directly to the appropriate regional office and any local pollution agency with jurisdiction that has requested to be notified.(c) Any person that stores or processes medical waste authorized under this subchapter shall provide written notification to the executive director, and any local pollution agency with jurisdiction that has requested in writing to the commission to be notified of any closure activity or activity of facility expansion not authorized by any notification. The required notifications must be submitted at least 90 days prior to a person conducting this activity. The executive director may request additional information to determine whether such activity is in compliance with this chapter. Any information provided under this subsection shall be submitted to the executive director in duplicate form.</content><note type="source"><p>Source Note: The provisions of this §326.37 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scD/s326.39"><num value="326.39">§326.39</num><heading>On-Site Treatment by Small Quantity Generators</heading><content>(a) A small quantity generator (SQG) is required to provide written notification to the executive director of the operation of an approved treatment process unit used only for the treatment of medical waste generated on-site in accordance with the provisions of 25 TAC §1.136 (relating to Approved Methods of Treatment and Disposition). Alternative treatment technologies may be approved in accordance with requirements found in 25 TAC §1.135 (relating to Performance Standards for Commercially-Available Alternate Treatment Technologies for Special Waste from Health Care-Related Facilities). This one-time notification shall include:(1) contact information for the generator;(2) if applicable, name, address, telephone number, and the Texas Commission on Environmental Quality authorization number of the mobile treatment operator providing treatment; and(3) the method/conditions of treatment.(b) An SQG shall maintain on-site a written record that contains the information listed in subsection (a) of this section and the following:(1) the name (printed) and initials of the person(s) performing treatment;(2) the dates of treatment; and(3) the amounts of waste treated.(c) A SQG shall follow the requirements listed in §326.41(c) of this title (relating to On-site Treatment by Large Quantity Generators) for disposal of medical wastes that have been treated in accordance with the provisions of 25 TAC §1.136.</content><note type="source"><p>Source Note: The provisions of this §326.39 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scD/s326.41"><num value="326.41">§326.41</num><heading>On-Site Treatment by Large Quantity Generators</heading><content>(a) A large quantity generator (LQG) that treats all or part of the medical waste generated on-site shall provide written notification to the executive director of the operation of an approved treatment process unit used only for the treatment of medical waste generated on-site in accordance with the provisions of 25 TAC §1.136 (relating to Approved Methods of Treatment and Disposition). Alternative treatment technologies may be approved in accordance with requirements found in 25 TAC §1.135 (relating to Performance Standards for Commercially-Available Alternate Treatment Technologies for Special Waste from Health Care-Related Facilities). This one-time notification shall include:(1) the contact information for the generator;(2) if applicable, the name, address, telephone number, and the Texas Commission on Environmental Quality authorization number of the mobile treatment operator providing treatment; and(3) the method/conditions of treatment.(b) A LQG shall maintain on-site a written record that contains the information listed in subsection (a) of this section and the following:(1) the name (printed) and initials of the person(s) performing treatment;(2) the dates of treatment;(3) the amounts of waste treated; and(4) written procedure for the operation and testing of any equipment used and written procedure for the preparation of any chemicals used in the treatment.(A) The operator shall demonstrate a minimum four log ten reduction (as defined in 25 TAC §1.132 (relating to Definitions)) on routine performance testing using appropriate Bacillus species biological indicators (as defined in 25 TAC §1.132). The operator shall conduct testing at the following intervals:(i) for generators of more than 50 pounds but less than or equal to 100 pounds per month, testing shall be conducted at least once per month;(ii) for generators of more than 100 pounds but less than or equal to 200 pounds per month, testing shall be conducted at least every two weeks; and(iii) for generators of more than 200 pounds per month testing shall be conducted at least weekly.(B) For those processes that the manufacturer has documented compliance with the performance standard prescribed in 25 TAC §1.135, based on specified parameters (for example, pH, temperature, pressure), and for previously approved treatment processes that a continuous readout and record of operating parameters is available, the operator may substitute routine parameter monitoring for biological monitoring. The operator shall confirm that any chemicals or reagents used as part of the treatment process are at the effective treatment strength. The operator will maintain records of operating parameters and reagent strength, if applicable, for three years.(C) The manufacturer of single-use, disposable treatment units shall be responsible for maintaining adequate quality control for each lot of single-use products. The treating facility or entity shall be responsible for following the manufacturer's instructions.(D) Owners or operators of medical waste incinerators shall comply with the requirements in §111.123 of this title (relating to Medical Waste Incinerators) in lieu of biological or parametric monitoring.(c) Disposal of treated medical waste. Medical wastes that have been treated in accordance with the provisions of 25 TAC §1.136 may be managed as routine municipal solid waste unless otherwise specified in paragraphs (1) - (5) of this subsection.(1) Incinerator ash shall be disposed of in a permitted landfill in accordance with Chapter 330 of this title (relating to Municipal Solid Waste).(2) Treated microbiological waste, blood, blood products, body fluids, laboratory specimens of blood and tissue, and animal bedding may be disposed of in a permitted landfill. Any markings that identify the waste as a medical waste shall be covered with a label that identifies the waste as treated medical waste. The identification of the waste as treated may be accomplished by the use of color-coded, disposable containers for the treated waste or by a label that states the contents of the disposable container have been treated in accordance with the provisions of 25 TAC §1.136.(3) Treated carcasses and body parts of animals designated as a medical waste may, after treatment, be disposed of in a permitted landfill in accordance with Chapter 330 of this title. The collection and transportation of these wastes shall conform to the applicable local ordinance or rule, if such ordinance or rule is more stringent than this subsection.(4) Treated recognizable human body parts, tissues, fetuses, organs, and the products of human abortions, spontaneous or induced, shall not be disposed of in a municipal solid waste landfill. These items shall be disposed of in accordance with the provisions of 25 TAC §1.136(a)(4).(5) Sharps treated and containerized with one of the approved methods as described under 25 TAC §1.136(a)(5) shall be disposed of in a permitted landfill in accordance with Chapter 330 of this title. Unused sharps shall be disposed of as treated sharps.</content><note type="source"><p>Source Note: The provisions of this §326.41 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scD/s326.43"><num value="326.43">§326.43</num><heading>Medical Waste Collection and Transfer by Licensed Hospitals</heading><content>(a) A licensed hospital may function as a medical waste collection and transfer facility and may accept untreated medical waste from generators that generate less than 50 pounds of untreated medical waste per month and that transport their own waste if:(1) the hospital is located in an incorporated area with a population of less than 25,000 and in a county with a population of less than one million; or(2) the hospital is located in an unincorporated area that is not within the extraterritorial jurisdiction of a city with a population of more than 25,000 or within a county with a population of more than one million.(b) The hospital shall provide written notification to the executive director of the operation as a medical waste collection station. The hospital's notice shall acknowledge the following:(1) Waste delivered to a medical waste collection station must be packaged in accordance with the provisions of §§326.17, 326.19, and 326.21 of this title (relating to Identification; Packaging; and Labeling Containers Excluding Sharps, respectively) by the generator.(2) For putrescible or biohazardous untreated medical waste, maintaining a temperature of 45 degrees Fahrenheit or less during pre-collection storage is optional. Such medical waste stored for longer than 72 hours during post-collection storage period shall be maintained at a temperature of 45 degrees Fahrenheit or less.(3) The storage of medical waste shall be in a secure manner and location that affords protection from theft, vandalism, inadvertent human or animal exposure, rain, water, and wind. The waste shall be managed so as not to create a nuisance.(4) Medical waste must be released only to a registered medical waste transporter. A list of the waste collected at the medical waste collection station including the identity of the generator of medical waste must be provided to the transporter.(5) Waste collected at a medical waste collection station may not be treated at the facility unless it is authorized as a treatment facility.</content><note type="source"><p>Source Note: The provisions of this §326.43 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c326/scE"><num value="E">SUBCHAPTER E</num><heading>OPERATIONS REQUIRING A REGISTRATION BY RULE</heading><section identifier="/us/state/tx/tac/t30/p1/c326/scE/s326.53"><num value="326.53">§326.53</num><heading>Transporters</heading><content>(a) A registration by rule is granted for persons that plan to transport medical waste. The transporter shall complete registration forms provided by the commission and submit the following information to the executive director at least 60 days prior to commencing operations:(1) Applicant information. Name, address, and telephone number of registrant.(2) Partner, corporate officer and director information. Name, address, and telephone number of partners, corporate officers, and directors, if applicable.(3) Fee information. Transporters shall pay an annual registration fee to the commission based upon the total weight or volume of untreated medical waste transported. Transporter fees are located in Subchapter G of this chapter (relating to Fees and Reporting).(4) Transportation unit information. Description of each transportation unit, including:(A) make, model, and year;(B) motor vehicle identification number, if applicable;(C) license plate (tag) number, including state and year; and(D) name of transportation unit owner or operator.(5) Instructions for mailing fees. Fees assessed in §326.87(b) of this title (relating to Fees) by the executive director shall be paid by the registrant within 30 days of the date of the invoice and shall be submitted in the form of a check, money order, or a copy of an electronic payment confirmation made payable to the agency cashier.(b) Other requirements.(1) Registrations by rule expire annually on September 30th of each year for all transporters. Registrations by rule shall not be renewed unless the owner or operator has submitted to the executive director:(A) an annual report in accordance with §326.89(d) of this title (relating to Reports);(B) an annual fee in accordance with §326.87(b) of this title; and(C) a renewal form to the executive director prior to the expiration of the registration by rule, but no later than August 1st.(2) When an owner or operator has made timely application for the renewal of a registration by rule, the existing registration by rule will not be renewed until the application has been determined administratively complete by the executive director.(3) The executive director shall, after review of any application for registration by rule, approve or deny the application. This action shall be based on whether the application meets the requirements of this chapter.(4) Failure to timely pay the annual fee eliminates the option to manage wastes.(5) The executive director will send a copy of the registration by rule issued with an assigned registration number, to the owner or operator.(6) Requirements for a transportation unit and associated cargo compartment used to collect or transport untreated medical waste that is packaged and labeled as described in Subchapter B of this chapter (relating to Packaging, Labeling and Shipping Requirements) are as follows:(A) The transportation unit used to collect and or transport medical waste shall:(i) have a fully enclosed, leak-proof, cargo-carrying body, such as a cargo compartment, box trailer, or roll-off box;(ii) protect the waste from mechanical stress or compaction;(iii) carry spill cleanup equipment including, but not limited to, disinfectants, absorbent materials, personal protective equipment such as gloves, coveralls, and eye protection, and leak-proof containers or packaging materials; and(iv) have the following identification on the two sides and back of the cargo-carrying compartment in letters at least three inches high: (the name of the transporter); TCEQ; (registration by rule number); and Caution: Medical Waste.(B) The cargo compartment of the vehicle or trailer shall:(i) be maintained in a sanitary condition;(ii) be locked when the vehicle or trailer is in motion;(iii) be locked or secured when waste is present in the compartment except during loading or unloading of waste;(iv) have a floor and sides made of an impervious, nonporous material;(v) have all discharge openings securely closed during operation of the vehicle or trailer; and(vi) maintain a temperature of 45 degrees Fahrenheit or less for putrescible or biohazardous untreated medical waste transported for longer than 72 hours during post-collection storage period.(7) Transportation units used to transport untreated medical waste shall not be used to transport any other material until the transportation unit has been cleaned and the cargo compartment disinfected. A written record of the date and the process used to clean and disinfect the transportation unit shall be maintained for three years unless the commission directs a longer holding period. The record must identify the transportation unit by motor vehicle identification number or license tag number. The owner or operator of the transportation unit, if not the registered transporter, shall be notified in writing by the transporter that the transportation unit has been used to transport medical waste and when and how the transportation unit was disinfected.(8) The transporter shall maintain a record of each waste shipment collection and deposition. The record shall be in the form of a manifest or other similar documentation and copies may be maintained in electronic media as described in §326.23(d) of this title (relating to Shipping). The transporter shall retain a copy of all manifests showing the collection and disposition of the medical waste. Copies of manifests shall be retained by the transporters for a minimum of three years in the transporter's main office and made available to the commission upon request. The manifest or other similar documentation shall include:(A) transporter's name, address, telephone number, and assigned transporter registration number;(B) name and address of the person that generated the untreated medical waste and the date collected;(C) total volume or the total weight of the containers from each generator of untreated medical waste collected for transportation;(D) name of persons collecting, transporting, and unloading the waste;(E) date and place where the untreated medical waste was deposited or unloaded;(F) identification (authorization number, location, and operator) of the facility where the untreated medical waste was deposited; and(G) name and signature in writing or through an electronic record as allowed by the executive director of facility representative acknowledging receipt of the untreated medical waste and the weight or volume of containers of waste received.(9) The transporter shall furnish the generator a signed manifest for each shipment at the time of collection of the waste. The manifest shall include the name, address, telephone number, and registration number of the transporter. The document shall also identify the generator by name and address, and shall list the weight of waste or volume of containers collected and date of collection. The transporter must provide the generator with a written or electronic statement of the total weight or volume of the containers collected within 45 days.(10) The transporter must be able to provide a manifest for each shipment from the point of collection through and including the unloading of the waste at a facility authorized to accept the waste. The original manifest or an electronic record as allowed by the executive director must accompany each shipment of untreated waste to its final destination. The transporter shall ensure the proper collection and deposition of untreated medical waste accepted for transport.(11) Shipments of untreated medical waste shall be stored or deposited only at a facility that has been authorized by the commission to accept untreated medical waste. Untreated medical waste that is transported out of the state shall be deposited at a facility that is authorized by the appropriate agency having jurisdiction over such waste.(12) Shipments of untreated medical waste, properly containerized Animal and Plant Health Inspection Service (APHIS) regulated garbage, and non-hazardous pharmaceutical waste may be commingled during transport or storage. Authorizations for the acceptance of APHIS regulated garbage shall be obtained from United Stated Department of Agriculture, Animal and Plant Health Inspection Service.(13) Shipments of untreated medical waste, properly containerized APHIS regulated garbage, and non-hazardous pharmaceutical waste that are commingled with any other waste (such as rubbish, garbage, hazardous waste, asbestos, or radioactive waste regulated under 25 TAC Chapter 289 (relating to Radiation Control)), shall be delivered to the same treatment facility.(14) The post-collection storage of medical waste by a transporter shall be in a secure manner and location that affords protection from theft, vandalism, inadvertent human or animal exposure, rain, water, and wind. The waste shall be managed so as not to provide a breeding place or food for insects or rodents, and not generate noxious odors.(15) Transporters shall not accept untreated medical waste unless the generator has packaged the waste in accordance with the provisions of §§326.17, 326.19, and 326.21 of this title (relating to Identification; Packaging; and Labeling Containers Excluding Sharps, respectively). Transporters shall not accept containers of waste that are leaking or damaged unless or until the shipment has been repackaged. All transporters described in this subsection must obtain any additional transportation authorizations to comply with local, state and federal rules.(16) Persons who engage in the transportation of waste within Texas when the transportation neither originates nor terminates in Texas are exempt from these regulations, except for paragraph (6)(A)(i) - (iii) and (B) of this subsection.(17) Packages of untreated medical waste shall not be transferred between transportation units unless the transfer occurs at and on the premises of a facility authorized as a transfer station, or at a treatment/processing facility that has been approved to function as a transfer station except as provided in §326.43 of this title (relating to Medical Waste Collection and Transfer by Licensed Hospitals).(18) In case of transportation unit malfunction, the waste shipment may be transferred to an operational transportation unit and the executive director, and any local pollution agency with jurisdiction that has requested to be notified, shall be notified of the incident in writing within five working days. The incident report shall list all transportation units involved in transporting the waste and the cause, if known, of the transportation unit malfunction. Update to the transporter's registration by rule is required when the new unit or units are placed in medical waste transport service for a period of time exceeding five days. When using a unit not registered, the transporter shall comply with paragraphs (6) and (7) of this subsection.(19) In case of a traffic accident, the waste shipment may be transferred to an operating transportation unit if necessary. Any containers of waste that were damaged in the accident shall be repackaged as soon as possible. The nearest regional office, and any local pollution agency with jurisdiction that has requested to be notified, shall be notified of the incident no later than the end of the next working day. The incident report shall list all vehicles involved in transporting the waste.(20) Persons that apply for the registration by rule must maintain a copy of the registration by rule issued by the executive director with an assigned registration by rule number, at their designated place of business and with each transportation unit used to transport untreated medical waste.(c) Changes to the registration by rule. Transporters shall notify the executive director, and any local pollution agency with jurisdiction that has requested to be notified, by letter, within 30 days of any changes to their registration if:(1) the office or place of business is moved;(2) the name of owner or operator of the operation is changed;(3) the name of the partners, corporate directors, or corporate officers change; or(4) the unit information has changed.</content><note type="source"><p>Source Note: The provisions of this §326.53 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scE/s326.55"><num value="326.55">§326.55</num><heading>Mobile Treatment Unit</heading><content>(a) A registration by rule is granted for an owner or operator of mobile treatment units conducting on-site treatment of medical waste but is not the generator of the waste. The mobile on-site treatment unit owner or operator completes registration by rule forms provided by the commission and submits the following information at least 60 days prior to commencing operations:(1) Applicant information. Name, address, and telephone number of registrant.(2) Partner, corporate officer and director information. Name, address, and telephone number of partners, corporate officers, and directors, if applicable.(3) Fee information. The owner or operator of a mobile treatment unit shall pay an annual registration fee to the commission based upon the total weight of medical waste treated on-site under each registration by rule. Fees to be assessed of owners or operators of an on-site treatment unit are located in Subchapter G of this chapter (relating to Fees and Reporting).(4) Approved treatment method. Description of approved treatment method to be employed and chemical preparations, as well as the procedure to be utilized for routine performance testing/parameter monitoring.(5) Performance testing. A written procedure for the operation and testing of any equipment used and a written procedure for the preparation of any chemicals used in treatment. Routine performance testing using biological indicators and/or monitoring of parametric controls shall be conducted in accordance with §326.41(b)(4) of this title (relating to On-Site Treatment by Large Quantity Generators); and identification of performance test failures including date of occurrence, corrective action procedures, and retest dates.(6) Evidence of competency. Documentation in the form of a relevant training certificate and/or description of work experience.(7) Wastewater disposal. A description of the management and disposal of process waters generated during treatment events.(8) Contingency plan. A written contingency plan that describes the handling and disposal of waste in the event of treatment failure or equipment breakdown. If there is any question as to the adequacy of treatment of any load, that load shall be run again utilizing biological indicators to test for microbial reduction before the material is released for landfill disposal. If the waste must be removed from the facility before treatment is accomplished, a registered transporter shall remove the waste and all other applicable sections of this chapter shall be in effect.(9) Cost estimate and financial assurance. An estimate of the cost to remove and dispose of waste and disinfect the waste treatment equipment and evidence of financial assurance using procedures specified in §326.71(k) - (n) of this title (relating to Registration Application Contents) and Chapter 37, Subchapter R of this title (relating to Financial Assurance for Municipal Solid Waste Facilities).(10) Mobile on-site treatment unit information. Description of each mobile treatment unit, including:(A) make, model, and year;(B) motor vehicle identification number, if applicable;(C) license plate (tag) number, including state and year; and(D) name of mobile treatment unit owner or operator.(11) Instructions for mailing fees. Fees assessed in §326.87(b) of this title (relating to Fees) by the executive director shall be paid by the registrant within 30 days of the date of the invoice and shall be submitted in the form of a check or money order or copy of the confirmation of an electronic payment made payable to the agency cashier.(b) Other requirements.(1) Registrations by rule expire annually on September 30th of each year. Registrations by rule shall not be renewed unless the owner or operator has submitted to the executive director:(A) an annual report in accordance with §326.89(d) of this title (relating to Reports);(B) an annual fee in accordance with §326.87(b) of this title;(C) evidence of financial assurance as of September 30th of the current year; and(D) a registration by rule renewal form to the executive director by August 1st.(2) When an owner or operator has made timely application for the renewal of a registration by rule, the existing registration by rule will not be renewed until the application has been determined administratively complete by the executive director.(3) The executive director shall, after review of any application for registration by rule, approve or deny the application. This action shall be based on whether the application meets the requirements of this chapter.(4) Failure to timely pay the annual fee eliminates the option to manage wastes.(5) The executive director will send a copy of the registration by rule issued with an assigned registration number, to the owner or operator.(6) Requirements for mobile treatment unit and associated cargo compartment used in the treatment of medical waste are as follows.(A) The mobile treatment unit used to treat medical waste shall:(i) have a fully enclosed, leak-proof, cargo-carrying body, such as a cargo compartment, box trailer, or roll-off box; and(ii) carry spill cleanup equipment including, but not limited to, disinfectants, absorbent materials, personal protective equipment, such as gloves, coveralls, and eye protection, and leak-proof containers or packaging materials.(B) The cargo compartment of the vehicle and any self-contained treatment unit(s) shall:(i) be maintained in a sanitary condition;(ii) be secured when the vehicle is in motion;(iii) be made of such impervious, non-porous materials as to allow adequate disinfection/cleaning of the compartment or unit(s); and(iv) have all discharge openings securely closed during operation of the vehicle.(7) Mobile treatment units used in the treatment of medical waste shall not be used to transport any other material until the unit has been cleaned and disinfected. A written record of the date and the process used to clean and disinfect the unit shall be maintained for three years unless the executive director requires a longer holding period. The record must identify the unit by motor vehicle identification number or license tag number. The owner of the unit, if not the operator, shall be notified in writing that the unit has been used in the treatment of medical waste and when and how the unit was disinfected.(8) Owners or operators of mobile on-site treatment units shall maintain records of all waste treatment, which includes the following information:(A) the name, address, and phone number of each generator;(B) the date of treatment;(C) the amount of waste treated;(D) the method/conditions of treatment; and(E) the name (printed) and initials of the person(s) performing the treatment.(9) Persons receiving a registration by rule shall maintain a copy of the registration by rule issued by the executive director with an assigned registration by rule number, at their designated place of business and in each mobile treatment unit used in treating medical waste.(10) Owners or operators of mobile on-site treatment unit shall furnish the generator the documentation required in paragraph (6)(A) and (B) of this subsection and a statement that the medical waste was treated in accordance with 25 TAC §1.136 (relating to Approved Methods of Treatment and Disposition) for the generator's records.(11) Untreated medical waste shall not be commingled or mixed with hazardous waste, asbestos, or radioactive waste regulated under 25 TAC Chapter 289 (relating to Radiation Control) either before or after treatment.(12) Owners or operators of mobile on-site treatment unit shall not transport untreated waste unless they are registered as a transporter of medical waste.(13) Owners or operators of mobile on-site treatment unit shall ensure adequate training of all operators in the use of any equipment used in treatment.(14) Owners or operators shall maintain the treatment equipment so as to not result in the creation of nuisance conditions.(c) Changes to the Registration by Rule. Owners or operators of mobile on-site treatment unit shall notify the executive director, by letter, within 30 days of any changes to their registration if:(1) the method employed to treat medical waste changes;(2) the office or place of business is moved;(3) the name of owner or operator of the operation is changed;(4) the name of the partners, corporate directors, or corporate officers change; or(5) the unit information changes.</content><note type="source"><p>Source Note: The provisions of this §326.55 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c326/scF"><num value="F">SUBCHAPTER F</num><heading>OPERATIONS REQUIRING A REGISTRATION</heading><section identifier="/us/state/tx/tac/t30/p1/c326/scF/s326.61"><num value="326.61">§326.61</num><heading>Applicability and General Information</heading><content>(a) A registration is required for facilities that store or process untreated medical waste that is received from off-site sources. The executive director may authorize these facilities to store and process other related waste. For the purposes of this subsection, off-site shall be any location that does not meet the definition of on-site found in §326.3 of this title (relating to Definitions). No person may cause, suffer, allow, or permit any activity of storage, processing, removal, or disposal of any medical waste unless that activity is authorized by a registration or other authorization from the commission. In the event this prohibition is violated, the executive director may seek recourse against not only the person that stored, processed, or disposed of the waste but also against the generator, transporter, owner or operator, or other person who caused, suffered, allowed, or permitted waste to be stored, processed, or disposed.(b) No person may commence physical construction of a new medical waste management facility subject to this registration requirement without having received a registration from the commission.(c) Registration application. A registration application for a medical waste facility is not subject to an opportunity for a contested case hearing.(d) The information required by this subchapter defines the basic elements for an application. All aspects of the application and design requirements must be addressed by the owner or operator, even if only to show why they are not applicable for that particular site.(e) The applicant for a medical waste facility registration shall provide the executive director data of sufficient completeness, accuracy, and clarity to provide assurance that operation of the site will pose no endangerment of the human health and welfare or the environment.(f) Failure of the owner or operator to provide complete information as required by this chapter may provide cause for the executive director to return the application without further action.(g) Submission of false information shall constitute grounds for denial of the registration application.(h) Processing facilities registered under subsection (a) of this section, excluding facilities operating as transfer station only, may store or process municipal solid waste that would be classified as medical waste if it were generated by health care-related facilities. This municipal solid waste shall be subject to the same requirements as medical waste when it is accepted by a facility that is only a registered medical waste facility.</content><note type="source"><p>Source Note: The provisions of this §326.61 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scF/s326.63"><num value="326.63">§326.63</num><heading>Property Rights</heading><content>(a) It is the responsibility of an owner or operator to possess or acquire a sufficient interest in or right to the use of the surface estate of the property for which an authorization is issued, including the access route if access is not provided by public right of way. The granting of an authorization neither conveys any property rights or interest in either real or personal property nor authorizes any injury to private property, invasion of personal rights, impairment of previous contract rights, or any infringement of federal, state, or local laws or regulations outside the scope of the authority under which an authorization is issued.(b) The owner or operator shall retain the right of entry to the facility until the end of the closure activities for inspection and maintenance of the facility.</content><note type="source"><p>Source Note: The provisions of this §326.63 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scF/s326.65"><num value="326.65">§326.65</num><heading>Relationships with Other Governmental Entities</heading><content>(a) Special districts. The Texas Health and Safety Code (THSC) applies to political subdivisions of the state to which the legislature has given waste handling authority for two or more counties. The relationship between the agency and any such waste handling authority will be similar to that between the agency and a county.(b) Municipal governments. Municipalities may enforce the provisions of this chapter as provided for in the THSC and the Texas Water Code (TWC). The commission is committed to assisting municipal governments in an educational and advisory capacity. The commission is a necessary and indispensable party to any suit filed by a local government under the THSC and the TWC.(c) County governments. County governments may exercise the authority provided in THSC, Chapters 361, 363, and 364, regarding the management of solid waste including the enforcement of the requirements of the THSC and of this chapter. The provisions of THSC, Chapters 361, 363, and 364, allow county governments to require and issue licenses authorizing and governing the operation and maintenance of facilities used for the storage, processing, or disposal of solid waste not in the territorial or extraterritorial jurisdiction of a municipality. THSC, Chapters 361, 363, and 364, provide that no license for disposal of solid waste may be issued, renewed, or extended without the prior approval of the commission. Under TWC, Chapter 7, the commission is a necessary and indispensable party to any suit filed by a local government for the violation of any provision of the Solid Waste Disposal Act. If an authorization is issued, renewed, or extended by the commission, the owner or operator of the facility does not need to obtain a separate license for the same facility from a county or from a political subdivision as defined in THSC, Chapters 361, 363, and 364.</content><note type="source"><p>Source Note: The provisions of this §326.65 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scF/s326.67"><num value="326.67">§326.67</num><heading>Relationship with County Licensing System</heading><content>(a) General procedures. Under Texas Health and Safety Code, Chapters 361, 363, and 364, counties are empowered to require and issue licenses authorizing and governing the operation and maintenance of medical waste storage, processing, or disposal facilities not within the territorial limits or extraterritorial jurisdiction of incorporated cities and towns. The county shall mail a copy of the approved license to the appropriate agency regional office. The territorial limits and the extraterritorial jurisdiction of incorporated cities and towns are excluded from county authority to make regulations for the governing and controlling of medical waste collection, processing, and storage.(b) Licensing procedures. The following pertain only to those counties that may choose to exercise licensing authority in accordance with this section.(1) Licensing authority.(A) Before exercising licensing authority for a medical waste facility required to obtain a registration, a county government shall promulgate regulations that are consistent with those established by the commission and that have been approved by the commission.(B) Before exercising licensing authority for a medical waste facility that is not required to obtain a registration, a county government shall promulgate regulations that are compatible with those established by the commission. County regulations must be submitted to the commission for approval. At a minimum, county regulations shall be protective of human health and the environment.(C) A county may not make regulations for medical waste management within the extraterritorial or territorial jurisdiction of incorporated cities or towns.(D) Only the commission may issue registrations for medical waste facilities located within the extraterritorial or territorial jurisdiction of incorporated cities or towns within the county.(E) A county license for a medical waste facility may not be issued, extended, or renewed without prior approval of the commission.(F) Once a license is issued by a county and remains valid, a registration from the commission is not required.(2) Public meeting. A county shall offer an opportunity to request for a public meeting, and issue appropriate notifications, in accordance with the procedures established in §326.73 of this title (relating to Registration Application Processing).(c) Contents of a license. A license for a medical waste facility issued by a county must include:(1) the name and address of each person that owns the land on which the medical waste facility is located and the person that is or will be the operator of the facility;(2) a legal description of the land on which the facility is located;(3) the terms and conditions on which the license is issued, including the duration of the license; and(4) the volume of waste to be managed.(d) Licensee's responsibilities. Medical waste facilities licensed by a county shall be operated in compliance with regulations of the commission and the county.</content><note type="source"><p>Source Note: The provisions of this §326.67 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scF/s326.69"><num value="326.69">§326.69</num><heading>Registration Application Formatting, Posting, Appointment and Fees</heading><content>(a) Registration applications for medical waste must be initially submitted in three copies. The owner or operator shall furnish additional copies of the application for use by required reviewing agencies, upon request of the executive director. The executive director is authorized to approve requests to submit this information electronically if the commission develops electronic systems to manage the data.(b) Preparation. Preparation of the application must conform with the Texas Occupations Code, Chapter 1001, Texas Engineering Practice Act.(1) The responsible engineer shall provide the firm number and seal, sign, and date the title page of each bound engineering report or individual engineering plan, table of contents and each engineering drawing in the application as required by Texas Engineering Practice Act, §1001.401, and in accordance with 22 TAC §137.33 (relating to Sealing Procedures).(2) Applications that have not been sealed shall be considered incomplete for the intended purpose and shall be returned to the owner or operator.(c) Application format.(1) Applications shall be submitted in three-ring binders.(2) The title page shall include:(A) name of the facility;(B) medical waste registration application number, if assigned;(C) name of owner and operator;(D) location by city and county;(E) date the application was prepared;(F) the seal and signature of the engineer preparing the application; and the firm number; and(G) when applicable, the number and date of the revision.(3) The table of contents shall contain the main sections and the corresponding page numbers of the application.(4) The narrative of the application shall be printed on 8-1/2 by 11 inches white paper. Drawings or other sheets shall be no larger than 11 by 17 inches so that they can be reproduced by standard office copy machines.(5) All pages shall contain a page number and date.(6) Revisions to text shall be tracked to document insertions, deletions and formatting changes. Revised pages shall have the revision date and indicate "Revised" in the footer of each revised page. A minimum of three clean copies of all revised pages shall also be provided.(7) Dividers and tabs are recommended.(d) Application drawings.(1) All information contained on a drawing shall be legible, even if it has been reduced. The drawings shall be 8-1/2 by 11 inches or 11 by 17 inches. Standard-sized drawings (24 by 36 inches) folded to 8-1/2 by 11 inches may be submitted or required if reduction would render them illegible or difficult to interpret.(2) If color coding is used, it should be distinct when reproduced on black and white photocopy machines.(3) Drawings shall be submitted at a standard engineering scale.(4) Each drawing, plan drawing or map shall have a:(A) dated title block;(B) bar scale at least one-inch long;(C) revision block;(D) responsible engineer's or geoscientist's seal, if required; and(E) drawing number and a page number.(5) Each plan drawing or map shall also have:(A) a north arrow. Preferred orientation is to have the north arrow pointing toward the top of the page;(B) a reference to the base map source and date, if the map is based upon another map. The latest published edition of the base map should be used; and(C) a legible legend.(6) Match lines and section lines shall reference the drawing where the match or section is shown. Section drawings should note from where the section was taken.(e) Posting application information.(1) Upon submittal of an application that requires public notice, the owner or operator shall provide a complete copy of the application, including all revisions and supplements to the application, on a publicly accessible internet website, and provide the commission with the Web address link for the application materials. This internet posting is for informational purposes only.(2) The commission shall post on its website the identity of all owners and operators filing an application and the Web address link required by this subsection.(f) Appointments. The owner or operator shall provide documentation that the person signing the application meets the requirements of §305.44(a) and (b) of this title (relating to Signatories to Applications). If the authority has been delegated, provide a copy of the document issued by the governing body of the owner or operator authorizing the person that signed the application to act as agent for the owner or operator.(g) Application fees. In accordance with §305.53 of this title (relating to Application Fee), the application fee for a registration, modification, or temporary authorization is $150.</content><note type="source"><p>Source Note: The provisions of this §326.69 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scF/s326.71"><num value="326.71">§326.71</num><heading>Registration Application Contents</heading><content>(a) Maps and Drawings.(1) General location map. The owner or operator shall submit a general location map of the facility at a scale of one inch equals 2,000 feet by using a United States Geological Survey 7 1/2-minute quadrangle sheet or equivalent as the base map.(2) Facility access and facility layout. A set of maps or drawings showing:(A) public access roads serving the facility;(B) longitudinal and latitudinal geographic coordinates for the point of beginning of the facility boundary's metes and bounds description;(C) facility boundary;(D) provisions for the maintenance of any natural windbreaks, such as greenbelts, where they will improve the appearance and operation of the facility and, where appropriate, plans for screening the facility from public view;(E) all site entrance roads from public access roads;(F) fencing;(G) general locations of main interior facility roadways; the location and surface type of all roads within one mile of the facility that will normally be used by the owner or operator for entering or leaving the facility;(H) locations of buildings and a descriptive title of their purpose;(I) outline of the waste management units and ancillary equipment for loading/unloading, storage and processing areas;(J) drainage, pipeline, and utility easements within the facility; and(K) any other graphic representations or marginal explanatory notes necessary to communicate the proposed construction phases of the facility, if applicable.(3) Land-use map. This is a constructed map of the facility showing the facility boundary (registration boundary) of the facility and any existing zoning on or surrounding the property and actual uses (e.g., agricultural, industrial, residential) both within the facility and within one mile of the facility. The owner or operator shall make every effort to show the location of residences, commercial establishments, schools, licensed day-care facilities, churches, cemeteries, ponds or lakes, and recreational areas within one mile of the facility boundary.(4) Published zoning map. If available, a published zoning map for the facility and within one mile of the facility for the county or counties in which the facility is or will be located. If the facility requires approval as a nonconforming use or a special permit from the local government having jurisdiction, a copy of such approval shall be submitted.(5) Impact on surrounding area. The use of any land for a medical waste facility shall not adversely impact human health or the environment. The owner or operator shall provide information regarding the likely impacts of the facility on cities, communities, groups of property owners, or individuals by analyzing the compatibility of land use, zoning in the vicinity, community growth patterns, and any other factors associated with the public interest. To assist the commission in evaluating the impact of the facility on the surrounding area, the owner or operator shall provide the following:(A) information about the character of surrounding land uses within one mile of the proposed facility;(B) information about growth trends within five miles of the facility with directions of major development; and(C) the proximity to residences and other uses (e.g., schools, churches, cemeteries, historic structures and sites, archaeologically significant sites, sites having exceptional aesthetic quality, etc.) within one mile of the facility. The owner or operator shall provide the approximate number of residences and commercial establishments within one mile of the proposed facility including the distances and directions to the nearest residences and commercial establishments. Population density and proximity to residences and other uses described in this paragraph may be considered for assessment of compatibility.(6) Land ownership map with accompanying landowners list. The applicant shall include a list of landowners within 1/4 mile of the facility and their addresses along with an appropriately scaled map locating the property owned by these persons. The landowners' list shall be keyed to the land ownership map and shall give each property owner's name and mailing address. Notice of an application is not defective if property owners did not receive notice because they were not listed in the real property appraisal records. The list shall also be provided in electronic form.(7) Metes and bounds. The applicant shall include a drawing and a description of the facility boundary signed and sealed by a registered professional land surveyor.(b) Property owner affidavit. The applicant shall provide a property owner affidavit that is signed by the owner and includes:(1) acknowledgment that the State of Texas may hold the property owner of record either jointly or severally responsible for the operation, maintenance, and closure of the facility; and(2) acknowledgment that the facility owner or operator and the State of Texas shall have access to the property during the active life and after closure for the purpose of inspection and maintenance.(c) Licensed operator. The owner or operator shall acknowledge that a licensed solid waste facility supervisor, as defined in Chapter 30 of this title (relating to Occupational Licenses and Registrations), be employed before commencing facility operation.(d) Legal authority. The owner and operator shall provide verification of their legal status as required by §281.5 of this title (relating to Application for Wastewater Discharge, Underground Injection, Municipal Solid Waste, Radioactive Material, Hazardous Waste, and Industrial Solid Waste Management Permits). This shall be a one-page certificate of incorporation issued by the secretary of state.(e) Transportation. The owner or operator shall:(1) provide data on the availability and adequacy of roads that the owner or operator will use to access the site;(2) provide data on the volume of vehicular traffic on access roads within one mile of the proposed facility, both existing and expected, during the expected life of the proposed facility;(3) project the volume of traffic expected to be generated by the facility on the access roads within one mile of the proposed facility; and(4) submit documentation of coordination of all designs of proposed public roadway improvements such as turning lanes, storage lanes, etc., associated with site entrances with the entity exercising maintenance responsibility of the public roadway involved. In addition, the owner or operator shall submit documentation of coordination with the Texas Department of Transportation for traffic and location restrictions.(f) Facility surface water drainage report. The owner or operator of a medical waste facility shall include a certification statement that:(1) The facility will be constructed, maintained, and operated to manage run-on and run-off during the peak discharge of a 25-year rainfall event and must prevent the off-site discharge of waste and feedstock material, including, but not limited to, in-process and/or processed materials.(2) Surface water drainage in and around a facility will be controlled to minimize surface water running onto, into, and off the treatment area.(3) The owner or operator will obtain the appropriate Texas Pollutant Discharge Elimination System storm water permit coverage when required; or shall provide the permit number for coverage under an individual wastewater permit.(4) The facility will be located outside of the 100-year floodplain unless the owner or operator can demonstrate that the facility is designed and will be operated in a manner to prevent washout of waste during a 100-year storm event, or the facility obtains a conditional letter of map amendment from the Federal Emergency Management Administration administrator.(5) The facility will not be located in wetlands unless the owner or operator provides documentation to the extent required under Clean Water Act, §404 or applicable state wetlands laws, that steps have been taken to attempt to achieve no net loss of wetlands.(g) Council of governments and local government review request. The owner or operator shall submit documentation that the application was submitted for review to the applicable council of governments for compliance with regional solid waste plans. The owner or operator shall also submit documentation that a review letter was requested from any local governments as appropriate for compliance with local solid waste plans. Review letters from the aforementioned entities are not a prerequisite to a final determination on a registration application.(h) General description of the facility location and design.(1) Facility location. The owner or operator shall provide:(A) a description of the location of the facility with respect to known or easily identifiable landmarks;(B) the access routes from the nearest United States or state highway to the facility; and(C) longitudinal and latitudinal geographic coordinates for the point of beginning of the facility boundary's metes and bounds description.(2) Facility access. The owner or operator shall describe how access will be controlled for the facility such as the type and location of fences or other suitable means of access control to protect the public from exposure to potential health and safety hazards, and to discourage unauthorized entry.(3) Buffer zones and easement protection. No solid waste unloading, storage, or processing operations shall occur within any easement, buffer zone, or right-of-way that crosses the facility. Processing equipment and storage areas shall maintain a minimum separating distance of 25 feet between the facility boundary and processing equipment, loading, unloading and storage areas. Storage units in transport vehicles are not subject to this subsection provided that the waste is stored in refrigerated units with temperatures below 45 degrees Fahrenheit. The executive director may consider alternatives to the buffer zone requirements of this subsection where the owner or operator demonstrates that the buffer zone is not feasible and affords ready access for emergency response and maintenance. The buffer zone shall not be narrower than that necessary to provide for safe passage for firefighting and other emergency vehicles. The executive director may consider alternatives to buffer zone requirements for authorized medical waste storage and processing facilities.(4) Flow diagrams and narrative. The owner or operator shall provide flow diagrams showing the various phases of collection, separation, processing, and disposal as applicable for the types of wastes received at the facility along with a narrative describing each phase;(i) Waste management unit design.(1) The owner or operator shall provide generalized construction information or manufacturer specifications of all storage and processing units (autoclaves, incinerators, etc.) and ancillary equipment (i.e., tanks, foundations, sumps, etc.) with regard to number of units, approximate dimensions and capacities, construction materials, vents, covers, enclosures, protective coatings of surfaces, etc.(2) The owner or operator shall provide generalized description of construction materials for slab and subsurface supports of all storage and processing components.(3) The owner or operator shall provide storage and processing areas designed to control and contain spills and contaminated water from leaving the facility. The design shall be sufficient to control and contain a worst case spill or release. Unenclosed containment areas shall also account for precipitation from a 25-year, 24-hour storm.(4) The owner or operator shall acknowledge that the storage of medical waste must be in a secure manner and in a location that affords protection from theft, vandalism, inadvertent human or animal exposure, rain, water, and wind. The waste must be managed so as not to provide a breeding place or food for insects or rodents, and not generate noxious odors.(5) For putrescible or biohazardous untreated medical waste, maintaining a temperature of 45 degrees Fahrenheit or less during pre-collection storage is optional. Such medical waste stored for longer than 72 hours during post-collection storage period shall be maintained at a temperature of 45 degrees Fahrenheit or less.(j) Treatment requirements. Medical waste shall be treated in accordance with the provisions of 25 TAC §1.136 (relating to Approved Methods of Treatment and Disposition). The owner or operator shall provide a written procedure for the operation and testing of any equipment used and for the preparation of any chemicals used in treatment and comply with the following:(1) The operator shall demonstrate a minimum four log ten reduction as defined in 25 TAC §1.132 (relating to Definitions) on routine performance testing using appropriate Bacillus species biological indicators (as defined in 25 TAC §1.132).(2) The operator shall conduct testing weekly.(3) For those processes that the manufacturer has documented compliance with the performance standard prescribed in 25 TAC §1.135 based on specified parameters (for example, pH, temperature, pressure, etc.), and for previously approved treatment processes that a continuous readout and record of operating parameters is available, the operator may substitute routine parameter monitoring for biological monitoring. The operator shall confirm that any chemicals or reagents used as part of the treatment process are at the effective treatment strength. The operator will maintain records of operating parameters and reagent strength for three years.(4) The manufacturer of single-use, disposable treatment units shall be responsible for maintaining adequate quality control for each lot of single-use products. The treating facility or entity shall be responsible for following the manufacturer's instructions.(5) Operators of medical waste treatment equipment shall use backflow preventers on any potable water connections to prevent contamination of potable water supplies.(6) Owners or operators of medical waste incinerators shall comply with the requirements in §111.123 of this title (relating to Medical Waste Incinerators) in lieu of biological or parametric monitoring.(7) Alternative treatment technologies may be approved in accordance with requirements found in 25 TAC §1.135 (relating to Performance Standards for Commercially-Available Alternate Treatment Technologies for Special Waste from Health Care-Related Facilities).(k) Closure plan. The facility closure plan shall be prepared in accordance with the following criteria.(1) Facility units shall be dismantled and removed off-site or decontaminated.(2) The owner or operator shall remove all waste and material on-site (unprocessed, in process, and processed), transport them to an authorized facility and disinfect all contaminated water handling units and all processing areas.(3) Closure of the facility must be completed within 180 days following the last acceptance of processed or unprocessed materials unless otherwise directed or approved in writing by the executive director.(l) Certification of final closure.(1) No later than 90 days prior to the initiation of a final facility closure, the owner or operator shall, through a published notice in the newspaper(s) of largest circulation in the vicinity of the facility, provide public notice for final facility closure. This notice shall provide the name, address, and physical location of the facility; the registration number, as appropriate; and the last date of intended receipt of waste. The owner or operator shall also make available an adequate number of copies of the approved final closure plan for public access and review. The owner or operator shall also provide written notification to the executive director of the intent to close the facility and place this notice of intent in the operating record.(2) Upon notification to the executive director as specified in paragraph (1) of this subsection, the owner or operator of a medical waste management facility shall post a minimum of one sign at the main entrance and all other frequently used points of access for the facility notifying all persons who may utilize the facility of the date of closing for the entire facility and the prohibition against further receipt of waste materials after the stated date. Further, suitable barriers shall be installed at all gates or access points to adequately prevent the unauthorized dumping of solid waste at the closed facility.(3) Within ten days after completion of final closure activities of a facility, the owner and operator shall submit to the executive director by registered mail:(A) a certification, signed by an independent licensed professional engineer, verifying that final facility closure has been completed in accordance with the approved closure plan. The submittal to the executive director shall include all applicable documentation necessary for certification of final facility closure; and(B) a request for voluntary revocation of the facility registration.(m) Cost estimate for closure.(1) The cost estimate must:(A) equal the costs for closure of the facility, including disposition of the maximum inventories of all processed and unprocessed waste;(B) be based on the costs of hiring a third party that is not affiliated with the owner or operator; and(C) be based on a volume (cubic yard) and/or weight (pound, ton) measure for collection and disposition costs.(2) An increase in the closure cost estimate and the amount of financial assurance provided under subsection (n) of this section must be made if changes to the facility conditions increase the maximum cost of closure at any time during the active life of the facility.(3) A reduction in the closure cost estimate and the amount of financial assurance provided under subsection (n) of this section may be approved if the cost estimate exceeds the maximum cost of closure at any time during the operation of the facility. A reduction in the cost estimate and the financial assurance must be considered a modification and the owner or operator shall provide a detailed justification for the reduction of the closure cost estimate and the amount of financial assurance.(n) Financial assurance. A copy of the documentation required to demonstrate financial assurance as specified in Chapter 37, Subchapter R of this title (relating to Financial Assurance for Municipal Solid Waste Facilities) shall be submitted 60 days prior to the initial receipt of waste. Continuous financial assurance coverage for closure must be provided until all requirements of the final closure plan have been completed and the facility is determined to be closed in writing by the executive director.(o) Site operating plan. This plan will provide general operating procedures for facility management for day-to-day operations at the facility. At a minimum, the site operating plan must include a description for how the items in §326.75 of this title (relating to Site Operating Plan) will be implemented. A facility that has an environmental management system that meets the minimum standards described in §90.30 of this title (relating to Minimum Standards for Environmental Management Systems) and is approved to operate under an environmental management system in accordance with §90.31 of this title (relating to Review of Incentive Applications for Environmental Management System), is not subject to site operating plan requirements while the authorization to operate under the environmental management system remains in place. In the event the executive director terminates authorization to operate under an environmental management system, the facility must comply with the site operating plan requirements within 90 days.(p) The approved site operating plan, the final closure plan, and all other documents and plans required by this chapter shall become operational requirements and shall be considered a part of the operating record of the facility. Any deviation from the registration, the incorporated plans, or any other documents associated with the registration is a violation of this chapter.</content><note type="source"><p>Source Note: The provisions of this §326.71 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scF/s326.73"><num value="326.73">§326.73</num><heading>Registration Application Processing</heading><content>(a) Opportunity for public meeting and posting notice signs.(1) The owner or operator shall provide notice of the opportunity to request a public meeting and post notice signs for all registration applications not later than 45 days after the executive director's receipt of the application in accordance with the procedures contained in §39.501(c) of this title (relating to Application for Municipal Solid Waste Permit) and by posting signs at the proposed site.(2) The owner or operator and the commission shall hold a public meeting in the local area, prior to facility authorization, if a public meeting is required based on the criteria contained in §55.154(c) of this title (relating to Public Meetings).(3) Notice of a public meeting shall be provided as specified in §39.501(e)(3) and (4) of this title. This section does not require the commission to respond to comments, and it does not create an opportunity for a contested case hearing.(4) The owner, operator, or a representative authorized to make decisions and act on behalf of the owner or operator shall attend the public meeting. A public meeting conducted under this section is not a contested case hearing under the Texas Government Code, Chapter 2001 (Texas Administrative Procedure Act).(5) At the owner's or operator's expense, a sign or signs must be posted at the site of the proposed facility declaring that the application has been filed and stating the manner in which the commission and owner or operator may be contacted for further information. Such signs must be provided by the owner or operator and must substantially meet the following requirements. Signs must:(A) consist of dark lettering on a white background and must be no smaller than four feet by four feet with letters at least three inches in height and block printed capital lettering;(B) be headed by the words "PROPOSED MEDICAL WASTE FACILITY;"(C) include the words "REGISTRATION NO." and the number of the registration;(D) include the words "for further information contact;"(E) include the words "Texas Commission on Environmental Quality" and the address and telephone number of the appropriate permitting office;(F) include the name of the owner or operator, and the address of the appropriate responsible official;(G) include the telephone number of the owner or operator;(H) remain in place and legible until the period for filing a motion to overturn has expired; and(I) describe how persons affected may request that the executive director and applicant conduct a public meeting.(6) Signs must be located within ten feet of every property line bordering a public highway, street, or road. Signs must be visible from the street and spaced at not more than 1,500-foot intervals. A minimum of one sign, but no more than three signs, shall be required along any property line paralleling a public highway, street, or road. This paragraph's sign requirements do not apply to properties under the same ownership that are noncontiguous or separated by intervening public highway, street, or road, unless the property is part of the registered facility.(7) The owner or operator shall also post signs at the facility in an alternative language when the alternative language requirements in §39.405(h)(2) of this title (relating to General Notice Provisions) are met. These signs must meet the location and frequency requirements of paragraph (6) of this subsection.(8) The owner or operator shall provide a certification to the executive director that the sign posting was conducted according to the requirements of this section.(9) The executive director may approve variances from the requirements of paragraphs (5) and (6) of this subsection if the owner or operator has demonstrated that it is not practical to comply with the specific requirements of those paragraphs and alternative sign posting plans proposed by the owner or operator are at least as effective in providing notice to the public. Approval from the executive director under this paragraph must be received before posting alternative signs for purposes of satisfying the requirements of this paragraph.(b) Notice of final determination. The executive director shall, after review of an application for registration, determine if the application will be approved or denied in whole or in part. In accordance with §50.133(b) of this title (relating to Executive Director Action on Application or WQMP Update), if the executive director acts on an application, the chief clerk shall mail or otherwise transmit notice of the action and an explanation of the opportunity to file a motion under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision). The chief clerk shall mail this notice to the owner and operator, the public interest counsel and to other persons who timely filed public comment in response to public notice.(c) Motion to overturn. The owner or operator, or a person affected may file with the chief clerk a motion to overturn the executive director's action on a registration application, under §50.139 of this title. The criteria regarding motions to overturn shall be explained in the public notices provided in accordance with Chapter 39 of this title (relating to Public Notice) and §50.133 of this title.</content><note type="source"><p>Source Note: The provisions of this §326.73 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scF/s326.75"><num value="326.75">§326.75</num><heading>Site Operating Plan</heading><content>(a) Personnel functions.(1) A description of functions and minimum qualifications for each category of key personnel to be employed at the facility and for the supervisory personnel in the chain of command;(2) A description of the general instructions that the operating personnel shall follow concerning the operational requirements of this subchapter; and(3) Procedures for the detection and prevention of the receipt of prohibited wastes; which must include:(A) random inspections of packaging for incoming loads;(B) records of all inspections; and(C) training for appropriate facility personnel responsible for inspecting or observing loads to recognize prohibited waste.(b) Waste acceptance. The applicant shall identify the sources and characteristics of medical wastes proposed to be received for storage and processing or disposal, the maximum amount of medical waste to be received daily, the maximum amount of medical waste to be stored, the maximum lengths of time that medical waste is to remain at the facility (specify the maximum allowable period of time that unprocessed and processed wastes are to remain on-site), and the intended destination of the medical waste received at this facility. Medical waste facilities may not receive regulated hazardous waste as defined in §326.3(45) of this title (relating to Definitions). Materials accepted for recycling may only be accepted from health care-related facilities as long as the recyclable materials have not been mixed or come into contact with medical waste. Materials mixed or contacting medical waste shall be managed as medical waste.(c) Facility-generated waste.(1) All liquids resulting from the facility operations shall be disposed of in a manner that will not cause surface water or groundwater pollution. The owner or operator may send wastewater off-site to an authorized facility or shall provide for the treatment of wastewaters resulting from managing the waste or from cleaning and washing. Except as provided in subsection (b) of this section, the owner or operator shall provide a connection into a public sewer system, a septic system, or a small wastewater treatment plant. On-site wastewater treatment systems shall comply with Chapter 285 of this title (relating to On-site Sewage Facilities). The owner or operator shall obtain any permit or other approval required by state or local code for the system installed.(2) Contaminated water shall be collected and contained until properly managed.(3) Wastes generated by a facility must be processed or disposed at an authorized solid waste management facility.(4) Off-site discharge of contaminated waters shall be made only after approval under the Texas Pollutant Discharge Elimination System authority.(5) The owner or operator shall provide a copy of the authorization to discharge wastewater to a treatment facility permitted under Texas Water Code, Chapter 26.(d) Storage requirements.(1) All solid waste shall be stored in such a manner that it does not create a nuisance.(2) Storage area(s) for source-separated or recyclable materials from medical waste facilities must be provided that are separate from solid waste processing areas. Control of odors, vectors, and windblown waste from the storage area shall be maintained.(3) Containers must be maintained in a clean condition so that they do not constitute a nuisance. Containers to be mechanically handled must be designed to prevent spillage or leakage during storage, handling, or transport.(4) If a stationary compactor is utilized, it shall be operated and maintained in such a way as not to create a public nuisance through material loss or spillage, odor, vector breeding or harborage, or other condition.(e) Recordkeeping and reporting requirements.(1) A copy of the registration, the approved registration application, and any other required plan or other related document shall be maintained at the medical waste facility at all times. These plans shall be made available for inspection by agency representatives or other interested parties. These documents shall be considered a part of the operating record for the facility.(2) The owner or operator shall promptly record and retain in an operating record:(A) all location-restriction demonstrations;(B) inspection records and training procedures;(C) closure plans, cost estimates, and financial assurance documentation relating to financial assurance for closure;(D) copies of all correspondence and responses relating to the operation of the facility, modifications to the registration, approvals, and other matters pertaining to technical assistance; and(E) all documents, manifests and any other document(s) as specified by the approved authorization or by the executive director.(3) For signatories to reports, the following conditions apply.(A) The owner or operator shall sign all reports and other information requested by the executive director as described in §305.128 of this title (relating to Signatories to Reports) and §305.44(a) of this title (relating to Signatories to Applications) or by a duly authorized representative of the owner or operator. A person is a duly authorized representative only if:(i) the authorization is made in writing by the owner or operator as described in §305.44(a) of this title;(ii) the authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity or for environmental matters for the owner or operator, such as the position of plant manager, environmental manager, or a position of equivalent responsibility. A duly authorized representative may thus be either a named individual or any individual occupying a named position; and(iii) the authorization is submitted to the executive director.(B) If an authorization under this section is no longer accurate because of a change in individuals or position, a new authorization satisfying the requirements of this section must be submitted to the executive director prior to, or together with, any reports, information, or applications to be signed by an authorized representative.(C) Any person signing a report shall make the certification in §305.44(b) of this title.(4) All information contained in the operating record shall be furnished upon request to the executive director and shall be made available for inspection by the executive director.(5) The owner or operator shall retain all information contained within the operating record and the different plans required for the facility for the life of the facility.(6) The executive director may set alternative schedules for recordkeeping and notification requirements as specified in paragraphs (1) - (5) of this subsection.(7) Owners or operators of a medical waste processing facility accepting delivery of untreated medical waste for which a shipping document is required for processing shall ensure each of the following requirements are met:(A) a shipping document accompanies the shipment, which designates the facility to receive the waste;(B) the owner or operator signs the shipping document and immediately gives at least one copy of the signed shipping document to the transporter;(C) the owner or operator retains one copy of the shipping document;(D) within 45 days after the delivery, the treatment facility owner or operator sends a written or electronic copy of the shipping document to the generator that includes the total weight of waste received and a statement that the medical waste was treated in accordance with 25 TAC §1.136 (relating to Approved Methods of Treatment and Disposition).(f) Fire protection.(1) An adequate supply of water under pressure must be available for firefighting purposes.(2) Firefighting equipment must be readily available.(3) A fire protection plan shall be established, and all employees shall be trained in its contents and use. This fire protection plan shall describe the source of fire protection (a local fire department, fire hydrants, fire extinguishers, water tanks, water well, etc.), procedures for using the fire protection source, and employee training and safety procedures. The fire protection plan shall comply with local fire codes.(g) Access control.(1) Public access to all medical waste facilities shall be controlled by means of artificial barriers, natural barriers, or a combination of both, appropriate to protect human health and safety and the environment. Uncontrolled access to other operations located at a medical waste facility shall be prevented.(2) The facility access road from a publicly owned roadway must be at least a two-lane gravel or paved road, designed for the expected traffic flow. Safe on-site access for all vehicles must be provided. The access road design must include adequate turning radii according to the vehicles that will utilize the facility and avoid disruption of normal traffic patterns. Vehicle parking must be provided for equipment, employees, and visitors. Safety bumpers at hoppers must be provided for vehicles. A positive means to control dust and mud must be provided.(3) Access to the facility shall be controlled by a perimeter fence, consisting of a four-foot barbed wire fence or a six-foot chain-link fence or equivalent, and have lockable gates. An attendant shall be on-site during operating hours. The operating area and transport unit storage area shall be enclosed by walls or fencing.(h) Unloading of waste.(1) The unloading of solid waste shall be confined to as small an area as practical. An attendant shall be provided at all facilities to monitor all incoming loads of waste. Appropriate signs shall also be used to indicate where vehicles are to unload. The owner or operator is not required to accept any solid waste that he/she determines will cause or may cause problems in maintaining full and continuous compliance with these sections.(2) The unloading of waste in unauthorized areas is prohibited. The owner or operator shall ensure that any waste deposited in an unauthorized area will be removed immediately and managed properly.(3) The unloading of prohibited wastes at the medical waste facility shall not be allowed. The owner or operator shall ensure that any prohibited waste will be returned immediately to the transporter or generator of the waste.(i) Operating hours. A site operating plan must specify operating hours. The operating hours may be any time between the hours of 7:00 a.m. and 7:00 p.m., Monday through Friday, unless otherwise approved by the executive director or commission for a registration.(1) In addition to the requirements of this subsection, the authorization may include alternative operating hours of up to five days in a calendar-year period to accommodate special occasions, special purpose events, holidays, or other special occurrences.(2) The agency regional office may allow additional temporary operating hours to address disaster or other emergency situations, or other unforeseen circumstances that could result in the disruption of waste management services in the area.(3) The facility must record, in the site operating record, the dates, times, and duration when any alternative operating hours are utilized.(j) Facility sign. Each facility shall conspicuously display at all entrances to the facility through which wastes are received, a sign measuring at least four feet by four feet with letters at least three inches in height stating the facility name; type of facility; the hours and days of operation; the authorization number of the facility; and facility rules. The posting of erroneous or misleading information shall constitute a violation of this section.(k) Control of windblown material and litter. Windblown material and litter within the registration boundary shall be collected as necessary to minimize unhealthy, unsafe, or unsightly conditions.(l) Facility access roads.(1) All-weather roads shall be provided within the facility to the unloading area(s) designated for wet-weather operation. The tracking of mud and debris onto public roadways from the facility shall be minimized.(2) Dust from on-site and other access roadways shall not become a nuisance to surrounding areas. A water source and necessary equipment or other means of dust control shall be provided.(3) All on-site access roads owned or controlled by the owner or operator shall be maintained to minimize depressions, ruts, and potholes on a regular basis. For the maintenance of other access roadways not owned or controlled by the owner or operator, the owner or operator shall coordinate with the Texas Department of Transportation, county, and/or local governments with maintenance authority over the roads.(m) Noise pollution and visual screening. The owner or operator of a transfer station shall provide screening or other measures to minimize noise pollution and adverse visual impacts.(n) Overloading and breakdown.(1) The design capacity of the facility shall not be exceeded during operation. The facility shall not accumulate solid waste in quantities that cannot be processed within such time as will preclude the creation of odors, insect breeding, or harborage of other vectors. If such accumulations occur, additional solid waste shall not be received until the adverse conditions are abated.(2) If a significant work stoppage should occur at a solid waste processing facility due to a mechanical breakdown or other causes, the facility shall accordingly restrict the receiving of solid waste. Under such circumstances, incoming solid waste shall be diverted to an approved backup processing or disposal facility. If the work stoppage is anticipated to last long enough to create objectionable odors, insect breeding, or harborage of vectors, steps shall be taken to remove the accumulated solid waste from the facility to an approved backup processing or disposal facility.(3) The owner or operator shall have alternative processing or disposal procedures for the solid waste in the event that the facility becomes inoperable for periods longer than 24 hours.(o) Sanitation.(1) The owner or operator shall provide potable water and sanitary facilities for all employees and visitors.(2) At processing facilities, all working surfaces that come in contact with wastes shall be washed down on a weekly basis at the completion of processing. Processing facilities that operate on a continuous basis shall be swept daily and washed down at least twice per week.(3) Wash waters shall not be accumulated on site without proper treatment to prevent the creation of odors or an attraction to vectors.(4) All wash waters shall be collected and disposed of in an authorized manner.(p) Ventilation and air pollution control. All facilities and air pollution abatement devices must obtain authorization, under Texas Health and Safety Code (THSC), Chapter 382 (Texas Clean Air Act) and Chapter 106 or 116 of this title (relating to Permits by Rule; and Control of Air Pollution by Permits for New Construction or Modification), from the Air Permits Division prior to the commencement of construction, except as authorized in THSC, §382.004. Additionally, all facilities and air pollution abatement devices must operate in compliance with all applicable air related rules including Chapter 101 of this title (relating to General Air Quality Rules) related to prevention of nuisance odors, minimizing maintenance, startup and shutdown emissions, and emission event reporting and recordkeeping.(q) Health and safety. Facility personnel shall be trained in the appropriate sections of the facility's health and safety plan.(r) Disposal of treated medical waste. Medical wastes that have been treated in accordance with the provisions of 25 TAC §1.136 may be managed as routine municipal solid waste unless otherwise specified in paragraphs (1) - (5) of this subsection.(1) Incinerator ash shall be disposed of in a permitted landfill in accordance with Chapter 330 of this title (relating to Municipal Solid Waste).(2) Treated microbiological waste, blood, blood products, body fluids, laboratory specimens of blood and tissue, and animal bedding may be disposed of in a permitted landfill. Any markings that identify the waste as a medical waste shall be covered with a label that identifies the waste as treated medical waste. The identification of the waste as treated may be accomplished by the use of color-coded, disposable containers for the treated waste or by a label that states that the contents of the disposable container have been treated in accordance with the provisions of 25 TAC §1.136.(3) Treated carcasses and body parts of animals designated as a medical waste may, after treatment, be disposed of in a permitted landfill in accordance with Chapter 330 of this title. The collection and transportation of these wastes shall conform to the applicable local ordinance or rule, if such ordinance or rule is more stringent than this subsection.(4) Treated recognizable human body parts, tissues, fetuses, organs, and the products of human abortions, spontaneous or induced, shall not be disposed of in a municipal solid waste landfill. These items shall be disposed of in accordance with the provisions of 25 TAC §1.136(a)(4).(5) Sharps treated and containerized with one of the approved methods as described under 25 TAC §1.136(a)(5) shall be disposed of in a permitted landfill in accordance with Chapter 330 of this title. Unused sharps shall be disposed of as treated sharps.</content><note type="source"><p>Source Note: The provisions of this §326.75 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scF/s326.77"><num value="326.77">§326.77</num><heading>Duration, Limits and Additional Registration Conditions</heading><content>(a) The executive director shall, after review of any application for registration, approve or deny an application. This action shall be based on whether the application meets the requirements of this chapter.(b) A registration is normally issued for the life of the facility but may be revoked or modified at any time if the operating conditions do not meet the minimum standards set forth in this chapter or for any other good cause.(c) A registration is issued to a specific person (see definition of "Person" contained in §3.2 of this title (relating to Definitions)) and may not be transferred from one person to another without complying with §305.62 and §305.70 of this title (relating to Amendments; and Municipal Solid Waste Permit and Registration Modifications).(d) Except for transporters and mobile treatment units, a registration is attached to the realty to which it pertains and may not be transferred from one facility to another.(e) If a registered facility does not commence physical construction within two years of issuance of a registration or within two years of the conclusion of the appeals process, whichever is longer, the registration shall automatically terminate and will no longer be effective.(f) A registration shall be considered to be a permit for purposes of revocation and denial under Chapter 305 of this title (relating to Consolidated Permits).(g) The owner or operator may file with the chief clerk a motion to overturn the executive director's denial of a registration under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).(h) If at any time during the life of the facility the owner or operator becomes aware of any condition in the registration that necessitates a change to accommodate new technology or improved methods or that makes it impractical to keep the facility in compliance, the owner or operator shall submit to the executive director requested changes to the registration in accordance with §305.70 of this title and must be approved prior to their implementation.(i) The owner or operator shall obtain and submit certification by a Texas-licensed professional engineer that the facility has been constructed as designed in accordance with the issued registration and in general compliance with the regulations prior to initial operation. The owner or operator shall maintain that certification on-site for inspection.(j) After all initial construction activity has been completed and prior to accepting any solid waste, the owner or operator shall contact the executive director and region office in writing and request a pre-opening inspection. A pre-opening inspection shall be conducted by the executive director within 14 days of notification by the owner or operator that all construction activities have been completed, accompanied by representatives of the owner or operator and the engineer.(k) The facility shall not accept solid waste until the executive director has confirmed in writing that all applicable submissions required by the registration and this chapter have been received and found to be acceptable, and that construction is in compliance with the registration. If the executive director has not provided a written or verbal response within 14 days of completion of the pre-opening inspection the facility shall be considered approved for acceptance of waste.</content><note type="source"><p>Source Note: The provisions of this §326.77 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c326/scG"><num value="G">SUBCHAPTER G</num><heading>FEES AND REPORTING</heading><section identifier="/us/state/tx/tac/t30/p1/c326/scG/s326.85"><num value="326.85">§326.85</num><heading>Purpose and Applicability</heading><content>(a) Purpose.(1) Fees. The commission is mandated by Texas Health and Safety Code, §361.013, to collect a fee for solid waste disposed of within the state, and from transporters of solid waste who are required to register with the state. The fee amount may be raised or lowered in accordance with spending levels authorized by the legislature.(2) Reports. The commission requires reports to track the amount of waste being stored and processed to track the amount of processing capacity and reserve (future) disposal capacity in Texas, and to enable equitable assessment and collection of fees.(b) Applicability.(1) Fees. The owner or operator of a medical waste processing facility, with the exception of facilities authorized as transfer station only, is required to pay a fee to the agency based upon the amount of waste received. For the purpose of this subchapter, "waste received" means the total amount of the waste (measured in tons or cubic yards) received by a facility at the gate, excluding only those wastes that are recycled or exempted from payment of fees under this subchapter or by law.(2) Reports. All registered facility owners or operators must submit reports to the executive director covering the types and amounts of waste processed at the facility or processing location; other pertinent information necessary to track the amount of waste generated, recovered, or recycled; and the amount of processing capacity of facilities. The information requested on forms provided by the executive director shall not be considered confidential or classified information unless specifically authorized by law, and refusal to submit the form with complete and accurate information by the applicable deadline shall be considered as a violation of this section and subject to appropriate enforcement action and penalty.(3) Interest penalty. Owners or operators of a facility failing to make payment of the fees imposed under this subchapter when due shall be assessed penalties and interest in accordance with Chapter 12 of this title (relating to Payment of Fees).</content><note type="source"><p>Source Note: The provisions of this §326.85 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scG/s326.87"><num value="326.87">§326.87</num><heading>Fees</heading><content>(a) Each owner or operator of a medical waste processing facility, with the exception of a facility authorized as a transfer station only is required to comply with the following:(1) Fee rates and measurement options. For purposes of this subsection, uncompacted waste means any waste that is not a liquid or a sludge, has not been mechanically compacted by a collection vehicle, has not been driven over by heavy equipment prior to collection, or has not been compacted subsequent or prior to collection by any type of mechanical device other than small, in-house, compactor devices owned and/or operated by the generator of the waste. Compacted waste is a liquid, sludge, or similar waste or any waste that has been reduced in volume by a collection vehicle or by any other means including, but not limited to, dewatering, composting, incineration, and similar processes. The volume or weight reported on the quarterly solid waste summary report must be consistent with the volume or weight of the waste received, as defined in §326.85(b)(1) of this title (relating to Purpose and Applicability). The volume or weight of the waste received shall be determined prior to processing of the waste.(A) Tons. The recommended method for measuring and reporting waste received at the gate is in tons. The operator must accurately measure and report the number of cubic yards or tons of waste received. For waste reported in tons, the fee rate is $0.47 per ton received and will be calculated by the executive director by using this rate.(B) Cubic yards (compacted). For waste reported in compacted cubic yards, the fee rate is $0.15 per cubic yard received and will be calculated by the executive director using this rate.(C) Cubic yards (uncompacted). For waste reported in uncompacted cubic yards, the fee rate is $0.095 per cubic yard received and will be calculated by the executive director using this rate.(2) Fee calculation. The fee shall be calculated by the executive director using information obtained from the quarterly solid waste summary report. The total cubic yards or tonnage reported to the executive director in the quarterly solid waste summary report shall be derived from gate tickets (weight or volume) or invoices and records of recycled materials or any other information deemed relevant by the executive director. A billing statement will be generated quarterly by the executive director and forwarded to the applicable owner or operator or a designated representative.(3) Fee payment due date. All solid waste fees shall be due within 30 days of the date the payment is requested.(4) Method of payment. The required fee shall be submitted in the form of a check or money order made payable to the commission and delivered or mailed to the return address designated by the executive director in the billing statement.(5) Penalties. Failure of the facility owner or operator to submit the required fee payment by the due date shall be sufficient cause for the commission to revoke the registration and authorization to process waste. The commission may assess interest penalties for late payment of fees and may also assess penalties (fines) in accordance with Texas Water Code, §7.051, or take any other action authorized by law to secure compliance.(6) Exemptions. A fee will not be charged on solid waste resulting from a public entity's effort to protect the public health and safety of the community from the effects of a natural or man-made disaster or from structures that have been contributing to drug trafficking or other crimes if the disposal facility at which that solid waste is offered for disposal has donated to a municipality, county, or other political subdivision the cost of disposing of that waste.(b) All transporters and mobile on-site treatment unit operators are required to comply with the following;(1) Transporters are required to pay an annual registration fee to the commission based upon the total weight or volume of untreated medical waste transported. Mobile treatment unit owners or operators are required to pay an annual fee to the commission based upon the total weight of medical waste treated on-site under each registration by rule.(2) The amount of the annual fee shall be based upon the total weight or volume of untreated medical waste transported under each registration by rule for transporters or total weight of medical waste treated on-site under each mobile treatment unit registration by rule.(3) The annual fees shall be determined as follows.(A) For a total annual weight transported of 1,000 pounds of medical waste or less, the fee is $100.(B) For a total annual weight transported greater than 1,000 pounds of medical waste but equal to or less than 10,000 pounds of medical waste, the fee is $250.(C) For a total annual weight transported greater than 10,000 pounds of medical waste but equal to or less than 50,000 pounds of medical waste, the fee is $400.(D) For a total annual weight transported greater than 50,000 pounds of medical waste, the fee is $500.(E) For all medical waste reported on a volume basis, the fee is $500.(4) Fees assessed in subsection (a) of this section by the executive director shall be paid by the registrant within 30 days of the date of the billing statement and shall be submitted in the form of a check or money order made payable to the agency cashier.</content><note type="source"><p>Source Note: The provisions of this §326.87 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c326/scG/s326.89"><num value="326.89">§326.89</num><heading>Reports</heading><content>(a) Medical waste processing facilities with the exception of transfer stations are required to comply with the following for report submittal.(1) Report frequency. Quarterly, each owner or operator of a medical waste processing facility, with the exception of facilities authorized as transfer station only shall report to the executive director the information requested on the report form for the appropriate reporting period. Annually, the owner or operator shall submit a summary of the information to show the yearly totals and year-end status of the facility or process, as requested on the report form, for the appropriate reporting period. The owner or operator shall file a separate report for each facility that has a unique authorization number.(2) Report form. The report shall be on a form furnished by the executive director or reproduced from a form furnished by the executive director or by an electronic or hard copy form provided by the executive director. The owner or operator must assure that the data entered on the form are applicable for the particular facility and period for which the data are reported.(3) Report information. In addition to a statement of the amount of waste received for processing, the report shall contain other information requested on the form, including the facility owner's or operator's name, address, and phone number; the authorization number; the facility type, size, and capacity; and other information the executive director may request.(4) Reporting units. The amount of waste received for processing shall be reported in tons (2,000 pounds) or in cubic yards as received (compacted or uncompacted) at the gate.(5) General weight/volume conversion factors for various types of waste shall be as follows:(A) one ton = 2,000 pounds; and(B) one drum = 55 gallons.(6) Report due date. The required quarterly solid waste summary report shall be submitted to the executive director not later than 20 days following the end of the fiscal quarter for which the report is applicable. The fiscal year begins on September 1st, and concludes on August 31st.(7) Method of submission. The required report shall be submitted electronically, hand delivered or mailed to the agency to the return address designated by the executive director in the billing statement distributed quarterly.(8) Penalties. Failure of the facility owner or operator to submit the required report by the due date shall be sufficient cause for the commission to revoke the facility authorization and authorization to process waste. The commission may assess interest penalties for late payment of fees and may also assess penalties (fines) in accordance with Texas Water Code, §7.051 or take any other action authorized by law to secure compliance.(b) Medical waste processing facilities. Each owner or operator of a medical waste processing facility is required to comply with the following:(1) Report frequency. Annually, each owner or operator shall report to the executive director the information requested on the report form for the appropriate reporting period. An owner or operator shall file a separate report for each facility that has a unique authorization number. The operator shall ensure that the annual summary report quantities concur with the quantities from the quarterly reports for the appropriate reporting period.(2) Report form. The form of the report shall be in accordance with subsection (a)(2) of this section.(3) Report information. The information in the report shall be in accordance with subsection (a)(3) of this section.(4) Reporting units. The units used in reporting shall be in accordance with subsection (a)(4) of this section.(5) Report due date. The required annual report shall be submitted when requested by the executive director for the fiscal year which the report is applicable.(6) Method of submission. The required report shall be submitted electronically, hand delivered, or mailed to the agency to the return address designated by the executive director in the billing statement distributed quarterly.(7) Penalties. Failure of the owner or operator to submit the required report by the due date shall be sufficient cause for the commission to revoke the permit or registration and authorization to process waste. The commission may assess interest penalties for late payment of fees and may also assess penalties (fines) in accordance with Texas Water Code, §7.051 or take any other action authorized by law to secure compliance.(c) Owners or operators of medical waste on-site mobile treatment units shall submit to the executive director an annual summary report of their activities for the calendar year from January 1st through December 31st of each year. The report shall be submitted no later than March 1st of the year following the end of the report period and shall contain all the information required in §326.55(b)(8) of this title (relating to Mobile Treatment Unit).(1) A registrant failing to submit the annual summary report by the date due is subject to payment of the maximum fees specified in §326.87(b) of this title (relating to Fees).(2) An owner or operator owing delinquent fees or failing to submit required reports will not be eligible to renew a registration to provide treatment of untreated medical waste until all fees and reports are submitted and accepted by the executive director.(d) Transporters shall submit to the executive director an annual summary report of their activities for the preceding calendar year from January 1st through December 31st of each year. The report shall be submitted no later than March 1st of the following year. The report shall indicate the amount of waste shipped out of state, the amount of waste shipped into the state, and the amount of waste generated and unloaded in the state.(1) The report shall include:(A) the name(s) and address(es) of the facilities where the waste was deposited/unloaded;(B) the authorization number of the facilities; and(C) the amount of waste deposited/unloaded at each facility.(2) A transporter failing to submit the annual summary report by the due date is subject to payment of the maximum fees specified in §326.87(b) of this title.(3) A transporter owing delinquent fees or an applicant who has failed to submit required reports will not be eligible to renew their registration to transport untreated medical waste until all fees and reports are submitted and accepted by the executive director.</content><note type="source"><p>Source Note: The provisions of this §326.89 adopted to be effective May 26, 2016, 41 TexReg 3697.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c327"><num value="327">CHAPTER 327</num><heading>SPILL PREVENTION AND CONTROL</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c327/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c327/sc/s327.1"><num value="327.1">§327.1</num><heading>Applicability</heading><content>(a) This chapter applies to discharges or spills that result in a release to the environment within the territorial limits of the State of Texas, including the coastal waters of this state.(b) This chapter does not apply to:(1) discharges or spills of oil that enter or threaten to enter coastal waters of the State. Except for spills of oil of 240 barrels or less for which the Railroad Commission of Texas is the on-scene coordinator, such discharges or spills are regulated by the Texas General Land Office under the Oil Spill Prevention and Response Act of 1991, the Texas Natural Resources Code, Chapter 40, Subchapters C, D, E, F, and G;(2) spills or discharges from activities subject to the jurisdiction of the Railroad Commission of Texas under the Texas Water Code, §26.131;(3) releases only to air;(4) the lawful placement of waste or accidental discharge of material into a solid waste management unit registered or permitted under Chapter 335, Subchapter A of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste in General);(5) units and activities regulated under the authority of the Texas Water Code, Chapter 26, Subchapter I (Underground and Aboveground Storage Tanks);(6) the lawful application of materials, including but not limited to fertilizers and pesticides, to land or water;(7) discharges that are authorized by a permit, order, or rule issued under federal law or any other law of the State of Texas; provided, however, that unauthorized discharges shall be reported under this chapter unless the permit, order, or another commission rule provides an applicable reporting requirement;(8) discharges or spills that are continuous and stable in nature, and are reported to the United States Environmental Protection Agency under 40 Code of Federal Regulations §302.8;(9) discharges or spills occurring during the normal course of rail transportation; or(10) accidental discharges or spills of treated or untreated wastewater that are reported in accordance with §305.132 of this title (relating to Special Conditions for Certain Wastewater Discharges).</content><note type="source"><p>Source Note: The provisions of this §327.1 adopted to be effective May 23, 1996, 21 TexReg 4228; amended to be effective December 26, 1996, 21 TexReg 12175; amended to be effective June 2, 2016, 41 TexReg 3914.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c327/sc/s327.2"><num value="327.2">§327.2</num><heading>Definitions</heading><content>The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise.(1) Agency on-scene coordinator--The official designated by the executive director to coordinate and direct agency responses, or to oversee private responses to discharges or spills.(2) Coastal waters--The definition of Coastal waters as it appears in Title 31, Texas Administrative Code, §19.2 (Definitions) of the Texas General Land Office rules.(3) Discharge or spill--An act or omission by which oil, hazardous substances, waste, or other substances are spilled, leaked, pumped, poured, emitted, entered, or dumped onto or into waters in the State of Texas or by which those substances are deposited where, unless controlled or removed, they may drain, seep, run, or otherwise enter water in the State of Texas.(4) Emergency response team--A unit of the agency that is responsible for the coordination of response to spills and discharges under the agency's jurisdiction.(5) Environment--Waters in the state, land surface or subsurface strata, for purposes of this chapter only.(6) Facility--Any structure or building, including contiguous land, or equipment, pipe or pipeline, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, aircraft, or any site or area where a discharge or spill has occurred or may occur.(7) Hazardous substance--Any substance designated as such by the administrator of the United States Environmental Protection Agency under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC 9601-9675, regulated under the Clean Water Act, §311, 33 USC 1321, or designated by the commission.(8) Industrial solid waste--Solid waste, as defined in §335.1 of this title (relating to Definitions), resulting from or incidental to any process of industry or manufacturing, or mining, or agricultural operations, which may include hazardous waste as defined in §335.1 of this title.(9) Oil--Oil of any kind or in any form including but not limited to petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil. Oil does not include used oil, petroleum product, or oil designated as a hazardous substance in 40 CFR §302.4.(10) Other substances--Substances that may be useful or valuable and therefore are not ordinarily considered to be waste, but that will cause pollution if discharged into water in the state.(11) Petroleum product--A petroleum substance obtained from distilling and processing crude oil that is liquid at standard conditions of temperature and pressure, and that is capable of being used as a fuel for the propulsion of a motor vehicle or aircraft, including but not necessarily limited to motor gasoline, gasohol, other alcohol blended fuels, aviation gasoline, kerosene, distillate fuel oil, and #1 and #2 diesel. The term does not include naphtha-type jet fuel, kerosene-type jet fuel, or a petroleum product destined for use in chemical manufacturing or feedstock of that manufacturing.(12) Petroleum storage tank (PST) exempted facilities--Electric service facilities including generation, transmission, distribution equipment and transformers; petrochemical plants; petroleum refineries; bulk loading facilities; and pipelines that are exempted from the Aboveground Storage Tank (AST) program under §334.123(a)(9) and (b) of this title (relating to Statutory Exemptions for ASTs), and §334.124(a)(4) of this title (relating to Commission Exclusions for ASTs).(13) Pipeline--A pipeline is:(A) an interstate pipeline facility, including gathering lines and any aboveground storage tank connected to such facility, if the pipeline facility is regulated under:(i) the Natural Gas Pipeline Safety Act of 1968 (49 United States Code §§1671, et seq); or(ii) the Hazardous Liquid Pipeline Safety Act of 1979 (49 United States Code §§2001, et seq).(B) an intrastate pipeline facility or any aboveground storage tank connected to such a facility, if the pipeline facility is regulated under one of the following state laws:(i) the Natural Resources Code, Chapter 111;(ii) the Natural Resources Code, Chapter 117; or(iii) Texas Civil Statutes, Article 6053-1 and Article 6053-2.(14) Pollution--The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of, any water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property or to public health, safety, or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful or reasonable purpose.(15) Responsible person--A person who is:(A) the owner, operator, or demise charterer of a vessel from which a discharge or spill emanates; or(B) the owner or operator of a facility from which a discharge or spill emanates; or(C) any other person who causes, suffers, allows, or permits a discharge or spill.(16) Used oil--Oil that has been refined from crude oil, or synthetic oil, that as a result of use has been contaminated by physical or chemical impurities.(17) Vessel--Every description of watercraft, used or capable of being used as a means of transportation on the water.(18) Water or water in the state--Groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of Mexico, inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface waters, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.</content><note type="source"><p>Source Note: The provisions of this §327.2 adopted to be effective May 23, 1996, 21 TexReg 4228.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c327/sc/s327.3"><num value="327.3">§327.3</num><heading>Notification Requirements</heading><content>(a) Reportable discharge or spill. A reportable discharge or spill is a discharge or spill of oil, petroleum product, used oil, hazardous substances, industrial solid waste, or other substances into the environment in a quantity equal to or greater than the reportable quantity listed in §327.4 of this title (relating to Reportable Quantities) in any 24-hour period.(b) Initial notification. Upon the determination that a reportable discharge or spill has occurred, the responsible person shall notify the agency as soon as possible but not later than 24 hours after the discovery of the spill or discharge.(c) Method of notification. The responsible person shall notify the agency in any reasonable manner including by telephone, in person, or by any other method approved by the agency. In all cases, the initial notification shall provide, to the extent known, the information listed in subsection (d) of this section. Notice provided under this section satisfies the federal requirement to notify the State Emergency Response Commission in the State of Texas. The responsible person shall notify one of the following:(1) the State Emergency Response Center at 1-800-832-8224;(2) during normal business hours only, the regional office for the agency region in which the discharge or spill occurred; or(3) the agency at the agency 24-hour spill reporting number.(d) Information required in initial notification. The initial notification shall provide, to the extent known, the information in the following list. Copies of spill reports prepared for other governmental agencies shall satisfy this requirement if they contain, or are supplemented to contain, all the information required by this subsection. The initial notification shall contain:(1) the name, address and telephone number of the person making the telephone report;(2) the date, time, and location of the spill or discharge;(3) a specific description or identification of the oil, petroleum product, hazardous substances or other substances discharged or spilled;(4) an estimate of the quantity discharged or spilled;(5) the duration of the incident;(6) the name of the surface water or a description of the waters in the state affected or threatened by the discharge or spill;(7) the source of the discharge or spill;(8) a description of the extent of actual or potential water pollution or harmful impacts to the environment and an identification of any environmentally sensitive areas or natural resources at risk;(9) if different from paragraph (1) of this subsection, the names, addresses, and telephone numbers of the responsible person and the contact person at the location of the discharge or spill;(10) a description of any actions that have been taken, are being taken, and will be taken to contain and respond to the discharge or spill;(11) any known or anticipated health risks;(12) the identity of any governmental representatives, including local authorities or third parties, responding to the discharge or spill; and(13) any other information that may be significant to the response action.(e) Update notification. The responsible person shall notify the agency as soon as possible whenever necessary to provide information that would trigger a change in the response to the spill or discharge.(f) Correction of records. Notifying the agency that a reportable discharge or spill has occurred shall not be construed as an admission that pollution has occurred. Furthermore, if the responsible person determines, after notification, that a reportable discharge or spill did not occur, the responsible person may send a letter to the agency documenting that determination. If the executive director agrees with that determination, the executive director will note the determination in commission records. If the executive director disagrees with that determination, the executive director will notify the responsible person within 30 days.(g) Notification of local governmental authorities. If the discharge or spill creates an imminent health threat, the responsible person shall immediately notify and cooperate with local emergency authorities (fire department, fire marshal, law enforcement authority, health authority, or Local Emergency Planning Committee (LEPC), as appropriate). The responsible party will cooperate with the local emergency authority in providing support to implement appropriate notification and response actions. The local emergency authority, as necessary, will implement its emergency management plan, which may include notifying and evacuating affected persons. In the absence of a local emergency authority, the responsible person shall take reasonable measures to notify potentially affected persons of the imminent health threat.(h) Notification to property owner and residents. As soon as possible, but no later than two weeks after discovery of the spill or discharge, the responsible person shall reasonably attempt to notify the owner (if identifiable) or occupant of the property upon which the discharge or spill occurred as well as the occupants of any property that the responsible person reasonably believes is adversely affected.(i) Additional notification required.(1) Except as noted in paragraph (2) of this subsection, complying with the notification requirements set forth in this section does not relieve, satisfy, or fulfill any other notification requirements imposed by permit or other local, state, or federal law.(2) Notice provided under this section satisfies the federal requirement to notify the State Emergency Response Commission in the State of Texas.(j) Alternative notification plans.(1) Responsible persons in charge of activities and facilities may submit and implement an alternative notification plan. This alternative notification plan shall comply with the Texas Water Code, §26.039. Responsible persons shall obtain the agency's written approval before implementing any alternative notification plan.(2) Upon approval of the agency regional manager, responsible persons may provide the initial notification by facsimile to the regional office during normal business hours.</content><note type="source"><p>Source Note: The provisions of this §327.3 adopted to be effective May 23, 1996, 21 TexReg 4228.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c327/sc/s327.4"><num value="327.4">§327.4</num><heading>Reportable Quantities</heading><content>(a) Hazardous substances. The reportable quantities for hazardous substances shall be:(1) for spills or discharges onto land--the quantity designated as the Final Reportable Quantity (RQ) in Table 302.4 in 40 CFR §302.4; or(2) for spills or discharges into waters in the state--the quantity designated as the Final RQ in Table 302.4 in 40 CFR §302.4, except where the Final RQ is greater than 100 pounds in which case the RQ shall be 100 pounds.(b) Oil, petroleum product, and used oil.(1) The RQ for crude oil and oil other than that defined as petroleum product or used oil shall be:(A) for spills or discharges onto land--210 gallons (five barrels); or(B) for spills or discharges directly into water in the state--quantity sufficient to create a sheen.(2) The RQ for petroleum product and used oil shall be:(A) except as noted in subparagraph (B) of this paragraph, for spills or discharges onto land--25 gallons;(B) for spills or discharges to land from PST exempted facilities--210 gallons (five barrels); or(C) for spills or discharges directly into water in the state--quantity sufficient to create a sheen.(c) Industrial solid waste or other substances. The RQ for spills or discharges into water in the state shall be 100 pounds.</content><note type="source"><p>Source Note: The provisions of this §327.4 adopted to be effective May 23, 1996, 21 TexReg 4228.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c327/sc/s327.5"><num value="327.5">§327.5</num><heading>Actions Required</heading><content>(a) The responsible person shall immediately abate and contain the spill or discharge and cooperate fully with the executive director and the local incident command system. The responsible person shall also begin reasonable response actions which may include, but are not limited to, the following actions:(1) arrival of the responsible person or response personnel hired by the responsible person at the site of the discharge or spill;(2) initiating efforts to stop the discharge or spill;(3) minimizing the impact to the public health and the environment;(4) neutralizing the effects of the incident;(5) removing the discharged or spilled substances; and(6) managing the wastes.(b) Upon request of the local government responders or the executive director, the responsible person shall provide a verbal or written description, or both, of the planned response actions and all actions taken before the local governmental responders or the executive director arrive. When the agency on-scene coordinator requests this information, it is subject to possible additional response action requirements by the executive director. The information will serve as a basis for the executive director to determine the need for:(1) further response actions by the responsible person;(2) initiating state funded actions for which the responsible person may be held liable to the maximum extent allowed by law; and(3) subsequent reports on the response actions.(c) Except for discharges or spills occurring during the normal course of transportation about which carriers are required to file a written report with the U.S. Department of Transportation under 49 CFR §171.16, the responsible person shall submit written information, such as a letter, describing the details of the discharge or spill and supporting the adequacy of the response action, to the appropriate TNRCC regional manager within 30 working days of the discovery of the reportable discharge or spill. The regional manager has the discretion to extend the deadline. The documentation shall contain one of the following items:(1) A statement that the discharge or spill response action has been completed and a description of how the response action was conducted. The statement shall include the initial report information required by §327.3(c) of this title (relating to Notification Requirements). The executive director may request additional information. Appropriate response actions at any time following the discharge or spill include use of the Texas Risk Reduction Program rules in Chapter 350 of this title (relating to Texas Risk Reduction Program).(2) A request for an extension of time to complete the response action, along with the reasons for the request. The request shall also include a projected work schedule outlining the time required to complete the response action. The executive director may grant an extension up to six months from the date the spill or discharge was reported. Unless otherwise notified by the appropriate regional manager or the Emergency Response Team, the responsible person shall proceed according to the terms of the projected work schedule.(3) A statement that the discharge or spill response action has not been completed nor is it expected to be completed within the maximum allowable six month extension. The statement shall explain why completion of the response action is not feasible and include a projected work schedule outlining the remaining tasks to complete the response action. This information will also serve as notification that the response actions to the discharge or spill will be conducted under the Texas Risk Reduction Program rules in Chapter 350 of this title (relating to Texas Risk Reduction Program).</content><note type="source"><p>Source Note: The provisions of this §327.5 adopted to be effective May 23, 1996, 21 TexReg 4228; amended to be effective December 26, 1996, 21 TexReg 12175; amended to be effective September 23, 1999, 24 TexReg 7415.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c327/sc/s327.31"><num value="327.31">§327.31</num><heading>Natural Resource Damage Assessment for Oil Spills in Coastal Waters</heading><content>Pursuant to a joint negotiated rulemaking mandated under Senate Bill 1049, 73rd Legislature, 1993, the Texas Natural Resource Conservation Commission incorporates by reference the provisions of 31 TAC §§20.1-20.4, 20.10, 20.20-20.23, 20.30-20.36, and 20.40-20.44, concerning Natural Resource Damage Assessment, as adopted by the Texas General Land Office, effective October 19, 1994.</content><note type="source"><p>Source Note: The provisions of this §327.31 adopted to be effective January 11, 1995, 19 TexReg 10551.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c327/sc/s327.32"><num value="327.32">§327.32</num><heading>Reporting Requirements for Certain Accidental Discharges or Spills of Treated or Untreated Wastewater at Wastewater Treatment Facilities or Collection Systems</heading><content>(a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.(1) Collection system--Pipes, conduits, lift stations, force mains, and all other constructions, devices, and appurtenant appliances used to transport domestic wastewater to a wastewater treatment facility.(2) History of noncompliance--History of non-reporting or reoccurrences of accidental discharges or spills of treated or untreated wastewater.(3) Local government--An incorporated city, a county, a river authority, or a water district or authority acting under Article III, Section 52, or Article XVI, Section 59 of the Texas Constitution.(4) Wastewater treatment facility--All contiguous land and fixtures, structures, and appurtenances used for storing, processing, and treating wastewater. A wastewater treatment facility does not include the collection system located outside of the fenced area around a wastewater treatment facility.(b) Except as provided by subsection (c) of this section, all accidental discharges or spills of treated or untreated wastewater shall be reported within 24 hours of the occurrence. A written submission shall be provided to the executive director within five days of the occurrence. The written submission shall contain a description of the accidental discharge or spill and its cause; the potential danger to human health or safety, or the environment; the duration of the accidental discharge or spill, including exact dates and times; if the cause of the accidental discharge or spill has not been corrected, the time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent recurrence, and to mitigate its adverse effects.(c) The responsible person of a wastewater treatment facility or collection system that is owned or operated by a local government may report accidental discharges or spills of treated or untreated wastewater that do not endanger human health or safety or the environment to the executive director as a monthly summary if each individual accidental discharge or spill:(1) has a volume of 1,000 gallons or less;(2) is not associated with another simultaneous accidental discharge or spill of treated or untreated wastewater;(3) is controlled or removed before the accidental discharge or spill enters water in the state or adversely affects a public or private source of drinking water; and(4) is not otherwise subject to local regulatory control and reporting requirements.(d) The responsible person shall submit a monthly summary by the 20th day of the month for each accidental discharge or spill that occurred during the previous month. The summary must include, at a minimum, the:(1) location, volume and content of the accidental discharge or spill;(2) description of the accidental discharge or spill;(3) cause of the accidental discharge or spill;(4) dates and times of the accidental discharge or spill; and(5) steps taken to reduce, eliminate, and prevent recurrence of the accidental discharge or spill.(e) The responsible person must use one of the following methods for determining the volume of the discharge or spill.(1) Visual estimate. If the accidental discharge or spill is less than 55 gallons, using a standard five-gallon bucket for reference, estimate the number of buckets that the discharge or spill would fill then multiply by five to obtain the number of gallons discharged or spilled. If the accidental discharge or spill is larger than 55 gallons, using a standard 55 gallon barrel for reference, estimate the number of barrels that the discharge or spill would fill and then multiply by 55 to obtain the number of gallons discharged or spilled.(2) Measured volume. Identify the length, width, and depth of the contained accidental discharge or spill in feet and calculate the volume by multiplying length by width by depth by 7.5 (the conversion factor from cubic feet to gallons).(3) Duration and flow rate. Identify separate estimates for the duration and the flow rate of the accidental discharge or spill. The estimated volume is calculated by multiplying the duration (hours or days) by the flow rate (gallons/hour or gallons/day).(4) Other methods. The responsible person may use other volumetric calculation methodologies rather than those listed in paragraphs (1) - (3) of this subsection, so long as such methodologies include procedures to identify a duration, flow rate, depth, affected area, and total quantity of each spill (including, as appropriate, reference to estimation tools such as barrels, for example), and such methodology is consistent with standard and accepted industry practices. Such alternative methodologies must be identified in the responsible person's monthly report.(f) The responsible person must keep records of all accidental discharges or spills of treated or untreated wastewater reported under this section. The records must remain on-site for three years and be made immediately available to commission staff upon request.(g) The executive director may require more frequent reporting based on the responsible person's history of noncompliance.</content><note type="source"><p>Source Note: The provisions of this §327.32 adopted to be effective June 2, 2016, 41 TexReg 3914.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c328"><num value="328">CHAPTER 328</num><heading>WASTE MINIMIZATION AND RECYCLING</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c328/scA"><num value="A">SUBCHAPTER A</num><heading>PURPOSE AND GENERAL INFORMATION</heading><section identifier="/us/state/tx/tac/t30/p1/c328/scA/s328.1"><num value="328.1">§328.1</num><heading>Purpose</heading><content>The purpose of this chapter is to establish regulations that support the diversion of materials from solid waste streams, to promote the economic recovery and reuse of materials, and to support the development of markets for recycled, remanufactured or environmentally sensitive products or services in a sustainable manner that protects the environment, public health and safety.</content><note type="source"><p>Source Note: The provisions of this §328.1 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scA/s328.2"><num value="328.2">§328.2</num><heading>Definitions</heading><content>The following terms, when used in this subchapter, have the following meanings. Other definitions may be found in Chapters 3, 330, and 332 of this title (relating to Definitions; Municipal Solid Waste; and Composting).(1) Affiliated with--A person, "A" is affiliated with another person, "B," if either of the following two conditions applies:(A) "A" owns or controls more than 20% of the voting interest, fair market value, profits, proceeds, or capital gains of "B"; or(B) "B" owns or controls more than 20% of the voting interest, fair market value, profits, proceeds, or capital gains of "A."(2) Completely drained--For the purposes of Texas Occupations Code, §1956.103(c), regarding the sale or transfer of a fuel tank to a metal recycling entity on or after January 1, 2006, a fuel tank is completely drained if:(A) all fuel has been removed that can be removed using practices commonly employed to remove fuel from a tank, e.g., pouring, pumping, and aspirating;(B) the procedures used to remove fuel from the tank conform with accepted industry practices; and(C) the tank is emptied of all accumulated sludges or residues, and is purged of all residual vapors in accordance with accepted industry procedures commonly employed for the type of fuel.(3) Incidental amount(s) of non-recyclable waste or incidental non-recyclable waste--Non-recyclable waste that accompanies recyclable material despite reasonable efforts to maintain source-separation and that is no more than 10% by volume or scale weight of each incoming load, and averages no more than 5% of the total scale weight or volume of all materials received in the last six-month period, as substantiated by the facility's records. The practices and standards of recycling facilities of a particular type will be considered by the executive director to allow alternative compliance with these standards on a case-by-case basis, as provided for in §328.4(e) of this title (relating to Limitations on Storage of Recyclable Materials). Reasonable efforts to maintain source-separation must include: having dual collection and transportation systems in place for recyclable material and non-recyclable waste at the point of generation; having informed generators and haulers of the source-separation requirements; and the recycling facility having instituted quality control measures including, at a minimum, inspection of incoming loads and rejection by the recycling facility of those loads that would cause the facility to exceed these percentages as described in this paragraph. After incoming loads are processed for recycling, all resulting non-recyclable waste must be managed according to the requirements of this chapter or taken to an authorized solid waste facility within one week. Incidental amount(s) of non-recyclable waste does not include non-recyclable components that are integral to recyclable material, including:(A) the non-recyclable components of white goods, whole computers, whole automobiles, or other manufactured items for which dismantling and separation of recyclable from non-recyclable components by the generator are impractical, such as insulation or electronic components in white goods;(B) source-separated recyclable material rendered unmarketable by damage during collection, unloading, and sorting, such as broken recyclable glass; and(C) tramp materials, such as:(i) glass from recyclable metal windows;(ii) nails and roofing felt attached to recyclable shingles;(iii) nails and sheetrock attached to recyclable lumber generated through the demolition of buildings; and(iv) pallets and packaging materials.(4) Processed for recycling or processing for beneficial use--Material has been or is processed for recycling, or undergoes processing for beneficial reuse, if it has been subjected to activities including extraction or separation of component materials (such as the separation of commingled recyclable materials), cleaning, grinding, or other preparation at a recycling facility to make it amenable for subsequent recycling or beneficial reuse.(5) Secondary metals recycling facility--A facility that:(A) is predominately engaged in the business of obtaining ferrous or nonferrous metals that have served their original economic purpose in order to convert those metals, or to sell those metals for conversion, into raw material products consisting of prepared grades and having an existing or potential economic value;(B) has the capability for performing the process by which ferrous or nonferrous metals are converted into raw material products consisting of prepared grades and having an existing or potential economic value, other than by the exclusive use of hand tools, by methods including, without limitation, the processing, sorting, cutting, classifying, cleaning, baling, wrapping, shredding, shearing, or changing the physical form or chemical content thereof; and(C) sells or purchases those ferrous or nonferrous metals solely for purposes of use in the form of raw materials in the production of new products.(6) Source-separated recyclable material--Recyclable material from residential, commercial, municipal, institutional, recreational, industrial, and other community activities, that at the point of generation has been separated, collected, and transported separately from municipal solid waste, or transported in the same vehicle as municipal solid waste, but in separate containers or compartments. Source-separation does not require the recovery or separation of non-recyclable components that are integral to a recyclable product, including:(A) the non-recyclable components of white goods, whole computers, whole automobiles, or other manufactured items for which dismantling and separation of recyclable from non-recyclable components by the generator are impractical, such as insulation or electronic components in white goods;(B) source-separated recyclable material rendered unmarketable by damage during collection, unloading, and sorting, such as broken recyclable glass; and(C) tramp materials, such as:(i) glass from recyclable metal windows;(ii) nails and roofing felt attached to recyclable shingles;(iii) nails and sheetrock attached to recyclable lumber generated through the demolition of buildings; and(iv) pallets and packaging materials.(7) Unusable--For the purposes of Texas Occupations Code, §1956.103(c) regarding the sale or transfer of a fuel tank to a metal recycling entity on or after January 1, 2006, a fuel tank is rendered unusable if the tank is completely drained and can no longer be used because it has been punctured, ruptured, crushed, shredded, or has other significant structural changes or alterations.</content><note type="source"><p>Source Note: The provisions of this 328.2 adopted to be effective September 12, 2002, 27 TexReg 8561; amended to be effective December 22, 2005, 30 TexReg 8438.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scA/s328.3"><num value="328.3">§328.3</num><heading>General Requirements</heading><content>(a) All recycling facilities shall comply with all applicable regulations of the commission, all applicable federal laws and regulations, as well as, without limitation, the following state laws, as applicable:(1) Texas Solid Waste Disposal Act, Texas Health and Safety Code (THSC), Chapter 361;(2) Texas Litter Abatement Act, THSC, Chapter 365;(3) Texas Toxic Chemical Release Reporting Act, THSC, Chapter 370;(4) Texas Clean Air Act, THSC, Chapter 382;(5) Texas Radiation Control Act, THSC, Chapter 401; and(6) Texas Water Code (TWC), Chapter 26 (relating to Water Quality Control).(b) Violations of state laws or regulations are subject to enforcement by the commission and may result in the assessment of civil or administrative penalties under TWC, Chapter 7 (relating to Enforcement).</content><note type="source"><p>Source Note: The provisions of this §328.3 adopted to be effective September 12, 2002, 27 TexReg 8561.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scA/s328.4"><num value="328.4">§328.4</num><heading>Limitations on Storage of Recyclable Materials</heading><content>(a) The provisions of subsections (e) and (f) of this section are available to all recycling facilities. In accordance with §§330.11(e)(2), 332.3(d), and 332.23(5) of this title (relating to Notification Required; Applicability; and Operational Requirements), in order to be exempt from the registration and permit requirements under Chapter 330 of this title (relating to Municipal Solid Waste) or under Chapter 332 of this title (relating to Composting), a facility must comply with the requirements of this section unless:(1) the owner or operator of the facility is a local government or an agency of the state or the federal government;(2) the facility receives more than 50% of its recyclable material directly from any combination of generators not affiliated with the facility, from the public, or from haulers not affiliated with the facility; the facility receives no financial compensation to accept any of the recyclable material it receives; and the facility accumulating the recyclable material can show that the material is potentially recyclable and has an economically feasible means of being recycled; or(3) the facility smelts recyclable metals or the facility is a secondary metals recycling facility affiliated with a smelter of recyclable metals, including the operations conducted and materials handled at the facility, provided that the owner or operator of the facility demonstrates that:(A) the primary function of the facility is to process materials that have a resale value greater than the cost of processing the materials for subsequent beneficial use; and(B) all the solid waste generated from processing the materials is disposed of in a solid waste facility authorized under Texas Health and Safety Code, Chapter 361 (concerning the Solid Waste Disposal Act), with the exception of small amounts of solid waste that may be inadvertently and unintentionally disposed of in another manner;(4) the facility is owned or operated by, or affiliated with, a person who holds a permit to dispose of municipal solid waste.(b) Recyclable material may be accumulated or stored at a recycling facility only under the following conditions:(1) the facility accumulating it can show that the material is potentially recyclable and has an economically feasible means of being recycled;(2) within 270 days after the effective date of this rule, or 270 days from the commencement of a new facility's operations, the amount of material recycled, or transferred to a different site for recycling, equals at least 25% by weight or volume of the material accumulated 90 days from the effective date of this rule or 90 days from the commencement of a new facility's operation; and(3) during each subsequent six-month period, the amount of material that is recycled, or transferred to a different site for recycling, equals at least 50% by weight or volume of the material accumulated at the beginning of the period.(A) In calculating the percentage of turnover, the percentage requirements are to be applied to each material of the same type.(B) For the purposes of this section, the following materials shall not be considered to be accumulated, but shall be considered to be recycled, as long as they have been contained, covered, or otherwise managed to protect them from degradation, contamination, or loss of value as recyclable material:(i) materials for mulching and composting facilities that have been ground for use as mulch, or compost, or prepared and placed in a windrow, static pile, or vessel for composting; or(ii) materials for other recycling facilities that have been processed for recycling.(c) A recycling facility that fails to comply with the requirements of this section shall be required, if the executive director so requests in writing, to obtain a permit or registration as a municipal solid waste facility under the provisions of Chapter 330 or Chapter 332 of this title. A facility that receives large quantities of materials as a result of a disaster or other circumstance beyond its control, and a mulching or composting facility that must accumulate a certain volume of materials in order to obtain grinding services from a contractor may not be subject to one or more of the requirements of subsection (b) of this section as determined by the executive director on a case-specific basis for a specified period of time as provided for in subsection (e) of this section.(d) A facility that processes recyclable material that contains more than incidental amounts of non-recyclable waste must obtain a permit or registration as applicable under Chapter 330 or Chapter 332 of this title unless the executive director approves its request for alternative compliance.(e) The executive director will use the following procedures in evaluating applications for alternative compliance with the standards in the definition of "Incidental amount(s) of non-recyclable waste" in §328.2 of this title (relating to Definitions) or with the requirements of subsection (b) of this section.(1) The applicant must apply in writing to the executive director for the alternative compliance. The application must address the relevant criteria contained in subsection (f) of this section.(2) The executive director will evaluate the application and issue a letter granting or denying the application. Any person affected by the decision of the executive director may file with the chief clerk a motion to overturn according to the procedures set out in §50.139(b) - (g) of this title (relating to Motion to Overturn Executive Director's Decision). The executive director may revoke an alternative compliance for good cause.(f) The executive director may grant requests for alternative compliance if the applicant submits sufficient documentation demonstrating that the applicant cannot meet the requirements in the definition of "Incidental amount(s) of non-recyclable waste" in §328.2 of this title without affecting the ability to support related recycling activities. Failure to qualify for alternative compliance will subject the applicant to the permitting or registration requirements of Chapter 330 or Chapter 332 of this title. The executive director's decision will be based on the following factors:(1) whether the application is for a single facility or for facilities of a similar type recycling the same kind of material;(2) the locations of all facilities to be covered by the alternative compliance;(3) the type(s) of material(s) accepted for recycling;(4) any storage of materials prior to recycling;(5) how the material(s) are recycled;(6) the amount of and reasons for unavoidable damage to incoming material during collection, unloading, and sorting that renders the material unmarketable;(7) reasons that data on tramp or damaged materials cannot be separated from data on other non-recyclable waste;(8) reasonable efforts used at the facility or facilities to maintain and enforce source-separation, or reasons why source-separation cannot be practicably maintained and enforced at the facility or facilities;(9) the amount and type of non-recyclable waste disposed of by the facility or facilities, the method of disposal, and the amount of time between receiving the waste and disposal;(10) the prevalence of the practice on an industry-wide basis, or on the basis of other similar facilities recycling the same kind of material;(11) reasons why alternative compliance would be protective of the environment and human health and safety; and(12) other relevant factors.(g) A municipal solid waste recycling facility that produces mulch or compost that is not required to have a permit or registration that stores combustible materials and is located in Bexar County shall comply with the following requirements of this subsection. This subsection applies to facilities that are exempt from other requirements of this section as provided in subsection (a) of this section.(1) Storage time limits for combustible material. An amount equal to at least 90% by weight or volume of combustible materials accumulated at the beginning of a 12-month period must be removed from the facility during each subsequent 12-month period. The 12-month period begins on the day this subsection becomes effective for existing facilities, on the first day that materials are received for a new facility, or as otherwise approved by the executive director. If a volume-based demonstration is used, the owner or operator will apply an appropriate conversion factor, as specified in the notice of intent to operate the facility and as approved by the executive director, based on facility operations to convert volumes of incoming material to equivalent volumes of outgoing material. For composting processes that need longer than 12 months, the owner or operator may request a compliance period longer than 12 months from the accumulation of material to demonstrate 90% removal of material accumulated during an earlier 12-month period. Requests for a longer compliance period must be accompanied by a technical justification as well as any supporting information for the additional time. The conversion factor and alternate compliance period may be periodically reviewed by the executive director to ensure that material is being removed from the facility.(2) Maximum volume of combustible material. A facility shall not store processed or unprocessed combustible material in excess of the maximum volume of material indicated in the current notice of intent to operate the facility submitted to the executive director.(3) Time limits for processing. All combustible material stored by a facility to produce mulch or compost must be ground so that 100% has a particle size of six inches or less in at least one dimension and 90% has a particle size of six inches or less in all dimensions no later than 90 days after receipt. Material will not be considered processed until it is ground to the specified dimensions. Under certain circumstances, an owner or operator may request executive director approval for additional time to grind combustible materials up to 180 days after receipt of the material.(4) Pile size limits. Each pile of combustible material shall have dimensions not to exceed 25 feet in height. Unprocessed combustible material shall not cover an area greater than 50,000 square feet at the facility, with no single pile exceeding 8,000 square feet. A pile of processed combustible material shall not cover an area greater than 25,000 square feet.(5) Number of piles. The number of piles of combustible materials at the facility shall not exceed the maximum number specified in the notice of intent to operate the facility submitted to the executive director.(6) Fire lanes between piles. There shall be a minimum separation of 40 feet from piles of unprocessed combustible materials and a minimum separation equal to the pile height between piles of processed combustible materials. An all-weather road shall encircle the area used for processing and storage of combustible material. At a minimum, this all-weather roadway shall have minimum 25-foot turning radii; shall be capable of accommodating firefighting vehicles during wet weather; and shall meet applicable local requirements and specifications. The open space between buildings and piles shall be kept open at all times; and be maintained free of combustible material, rubbish, equipment, or other materials. Upon coordination with the local fire marshal, the distance required may be increased, as necessary, to protect human health and safety.(7) Buffer zone. The set back distance from all property boundaries to the edge of the areas receiving, processing, or storing material must be at least 50 feet.(8) Recharge Zone or Transition Zone. Notwithstanding the applicability requirements of Chapter 213 of this title (relating to Required Edwards Aquifer Protection Plans, Notifications, and Exemptions), facilities located on a recharge or transition zone shall have a water pollution abatement plan consistent with the requirements of §213.5(b) of this title (relating to Required Edwards Aquifer Protection Plans, Notifications, and Exemptions).(9) Notice of intent. By the effective date of this subsection for existing facilities or at least 90 days prior to commencing new operations, the owner or operator must file a notice of intent in accordance with §328.5(b) of this title (relating to Reporting and Recordkeeping Requirements) that also includes provisions to demonstrate compliance with this subsection. A revised notice of intent must be filed with the executive director before revising a volume conversion factor or before a facility exceeds the maximum amount of material to be stored as specified in the current notice of intent.(10) Recordkeeping. The owner or operator of a facility subject to the requirements of this subsection must maintain all records necessary to demonstrate compliance with this subsection.(11) Compliance. Failure to operate and maintain a facility as proposed in the current notice of intent for the facility is a violation of this chapter.(12) Effective date. The requirements of this subsection do not become effective until one year after commission adoption of this subsection.</content><note type="source"><p>Source Note: The provisions of this 328.4 adopted to be effective September 12, 2002, 27 TexReg 8561; amended to be effective November 4, 2004, 29 TexReg 10120; amended to be effective September 10, 2009, 33 TexReg 8171.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scA/s328.5"><num value="328.5">§328.5</num><heading>Reporting and Recordkeeping Requirements</heading><content>(a) In order to be exempt from the registration and permit requirements under §330.4(f)(1)(B) of this title (relating to Permit Required) or under Chapter 332 of this title (relating to Composting), a facility must comply with the requirements of this section unless:(1) the owner or operator of the facility is a local government or an agency of the state or the federal government;(2) the facility receives more than 50% of its recyclable material directly from any combination of generators not affiliated with the facility, the public, or haulers not affiliated with the facility; the facility receives no financial compensation to accept any of the recyclable material it receives; and the facility accumulating the recyclable material can show that the material is potentially recyclable and has an economically feasible means of being recycled;(3) the facility smelts recyclable metals or the facility is a secondary metals recycling facility affiliated with a smelter of recyclable metals, including the operations conducted and materials handled at the facility, provided that the owner or operator of the facility demonstrates that:(A) the primary function of the facility is to process materials that have a resale value greater than the cost of processing the materials for subsequent beneficial use; and(B) all the solid waste generated from processing the materials is disposed of in a solid waste facility authorized under Texas Health and Safety Code, Chapter 361 (concerning the Solid Waste Disposal Act), with the exception of small amounts of solid waste that may be inadvertently and unintentionally disposed of in another manner; or(4) the owner or operator of the facility owns or operates a facility permitted to dispose of municipal solid waste, or is affiliated with a person holding a permit to dispose of municipal solid waste.(b) Within 90 days of the effective date of this section or prior to the commencement of new operations, the owner or operator of a facility that serves as a collection and processing point for only non-putrescible source-separated recyclable materials, or for mulching or composting of only source-separated recyclable material shall report on a form or forms to be provided by the executive director, describing:(1) the type(s) of material(s) accepted for recycling;(2) any storage of materials prior to recycling;(3) how the material(s) will be recycled; and(4) any updates or changes to information contained in the facility report within 90 days of the effective date of the change.(c) Closure cost estimates.(1) Except as otherwise approved by the executive director, an owner or operator of a recycling facility that stores combustible material outdoors, or that poses a significant risk to public health and safety as determined by the executive director, shall provide a written cost estimate, in current dollars, showing the cost of hiring a third party to close the facility by disposition of all processed and unprocessed materials in accordance with all applicable regulations. The cost estimate for financial assurance must be submitted with any new registration application or at least 90 days prior to receipt of materials for new facilities; within 60 days of the effective date of this rule for existing facilities; or as otherwise requested by the executive director.(2) The estimate must:(A) equal the costs of closure of the facility, including disposition of the maximum inventories of all processed and unprocessed combustible materials stored outdoors on site during the life of the facility, in accordance with all applicable regulations;(B) be based on the costs of hiring a third party that is not affiliated (as defined in §328.2 of this title (relating to Definitions)) with the owner or operator; and(C) be based on a per cubic yard and/or short ton measure for collection and disposition costs.(d) Financial assurance. An owner or operator of a recycling facility that stores combustible material outdoors, or that poses a significant risk to public health and safety as determined by the executive director shall establish and maintain financial assurance for closure of the facility in accordance with Chapter 37, Subchapter J of this title (relating to Financial Assurance for Recycling Facilities).(e) Closure requirements.(1) Closure must include collecting processed and unprocessed materials, and transporting the materials to an authorized facility for disposition unless otherwise approved or directed in writing by the executive director.(2) Closure of the facility must be completed within 180 days following the most recent acceptance of processed or unprocessed materials unless otherwise approved or directed in writing by the executive director.(f) The owner or operator of a facility subject to the requirements of this subchapter shall maintain all records necessary to show:(1) compliance with the requirements of §328.4 of this title (relating to Limitations on Storage of Recyclable Materials); and(2) reasonable efforts to maintain source-separation of materials received by the facility, including:(A) notice to customers of source-separation requirements;(B) training of staff in the inspection of incoming loads to ensure that they contain no more than 10% incidental non-recyclable waste;(C) documentation of loads that have been rejected for exceeding 10% incidental non-recyclable waste; and(D) documentation that incidental non-recyclable waste constitutes no more than 5% of the average total scale weight or volume of all materials received in the last six-month period;(3) proof of financial assurance sufficient to cover all closure costs.(g) The owner or operator of a facility subject to the requirements of this section shall make these records available upon request to agents or employees of the executive director or of local governments with territorial or extra-territorial jurisdiction over the property on which the facility is located.(h) The owner or operator of a facility subject to the requirements of this section that manages combustible materials shall have a fire prevention and suppression plan that shall be made available to the local fire prevention authority having jurisdiction over the facility for review and coordination.</content><note type="source"><p>Source Note: The provisions of this 328.5 adopted to be effective September 12, 2002, 27 TexReg 8561; amended to be effective November 4, 2004, 29 TexReg 10120.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c328/scB"><num value="B">SUBCHAPTER B</num><heading>RECYCLING, REUSE, AND MATERIALS RECOVERY GOALS AND RATES</heading><section identifier="/us/state/tx/tac/t30/p1/c328/scB/s328.6"><num value="328.6">§328.6</num><heading>Purpose and Scope</heading><content>(a) Purpose. The purpose of this subchapter is to establish reporting requirements through which progress toward achieving the established recycling goals can be measured. It is the state's goal to achieve the recycling of at least 40% of the state's total municipal solid waste stream.(b) Scope. These sections shall be used to determine local, regional, and statewide recycling rates. These sections also provide guidance for determining waste stream reduction and per capita waste generation rates.</content><note type="source"><p>Source Note: The provisions of this §328.6 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scB/s328.7"><num value="328.7">§328.7</num><heading>Definitions of Terms and Abbreviations</heading><content>The following words and terms, when used in this subchapter shall have the following meanings, unless the context clearly indicates otherwise.(1) Base year--The year 1990 used as a reference for recycling credit limits and for determining the amount of waste reduced at the source.(2) Municipal sludge--Any solid, semisolid, or liquid waste generated from a municipal wastewater treatment plant, water supply treatment plant, or any other such waste having similar characteristics and effect, exclusive of the treated effluent from a wastewater treatment plant.(3) Net tons of waste exported--The difference between that portion of the municipal waste stream generated within specific geographic boundaries and exported for disposal and that portion which is generated outside the boundaries and imported for disposal during a specified time period.(4) Recycled product--(A) A product which conforms to the minimum content of recycled material as specified in the Comprehensive Procurement Guidelines (CPG) and the Recovered Materials Advisory Notice (RMAN) published by the Environmental Protection Agency (EPA). The following is a list of the EPA guidelines:(i) CPG I, as amended through May 1, 1995, at 60 Federal Register (FR) 21370;(ii) RMAN I, as amended through May 1, 1995, at 60 FR 21386;(iii) RMAN (update), as amended through May 29, 1996, at 61 FR 26985;(iv) CPG II, as amended through November 13, 1997, at 62 FR 60962;(v) RMAN II, as amended through November 13, 1997, at 62 FR 60975;(vi) RMAN (update), as amended through June 8, 1998, at 63 FR 31214;(vii) CPG III, as amended through January 19, 2000, at 65 FR 3069;(viii) RMAN III, as amended through January 19, 2000, 65 FR 3082;(ix) CPG IV, as amended through April 30, 2004, at 69 FR 24028;(x) RMAN IV, as amended through April 30, 2004, at 69 FR 24039;(xi) CPG V, as amended through September 14, 2007, at 72 FR 52475; and(xii) RMAN V, as amended through September 14, 2007, at 72 FR 52561.(B) For products for which no EPA guidelines exist, states may use guidelines from the Federal Trade Commission (FTC), or the American Society for Testing Materials (ASTM) for those products for which FTC or ASTM guidelines exist. The FTC guideline is found in 16 Code of Federal Regulations Part 260 and 16 CFR §260.13. The ASTM guidelines are available online at ASTM's website, www.astm.org.(C) The term does not include a product sold as fuel.(5) Recycling rate--That percentage of the municipal solid waste stream which is recovered or diverted for recycling.(6) Source-reduced waste--A material or product, previously or typically entering the municipal solid waste stream, which has been prevented from entering that stream through source reduction.(7) Source reduction--Any action that averts the discarding of products or materials by reducing material use or waste at the source, including redesigning products or packaging so that less material is used, voluntary or imposed behavioral changes in the use and reuse on site of materials or products, or increasing durability or reusability of materials or products.(8) Total municipal solid waste stream--The sum of the state's total municipal solid waste that is disposed of as solid waste, measured in tons, and the total number of tons of recyclable material that has been diverted or recovered from the total municipal solid waste and recycled.(9) Waste stream reduction rate--That percentage of the municipal solid waste stream which is source-reduced or recovered or diverted for recycling.</content><note type="source"><p>Source Note: The provisions of this §328.7 adopted to be effective September 5, 1999, 24 TexReg 6761; amended to be effective March 19, 2000, 25 TexReg 2151; amended to be effective November 17, 2024, 49 TexReg 8927.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scB/s328.8"><num value="328.8">§328.8</num><heading>Measurement of Recycling Rates</heading><content>(a) Annual rates. Annually, the executive director shall determine the statewide recycling rate and, when possible, the waste stream reduction and per capita waste generation rates. Also, when possible, the executive director shall determine the rates for specific materials and for particular geographic areas of the state.(b) Recordkeeping. Processors, handlers, and collectors of recyclable materials are encouraged to report and keep appropriate records to facilitate measuring recycling rates. The executive director shall protect confidential information received from these businesses to the extent authorized by law.(c) Multiple counting. Diligence shall be practiced in collecting and reporting information to prevent multiple counting of any materials. Usually, materials will be counted as they are transferred to a recyclable material end-user or consumer in the state or as they are transferred out of state. The quantities of materials rejected and disposed of by the end-user shall be deducted from the quantities counted for recycling.(d) Required minimum information for reporting. The following information at a minimum shall accompany the reporting of recycling rates for clarification:(1) report area or geographic area covered by the report;(2) reporting period - the year or portion of a year covered by the report;(3) tons of each material, categorized per subsection (e) of this section, recovered or diverted for recycling from the total municipal solid waste stream generated within the report area during the report period;(4) tons of municipal solid waste generated within the report area during the report period;(5) tons of municipal solid waste generated during the report period within the report area but disposed of outside the report area;(6) tons of municipal solid waste generated outside the report area but disposed of inside the report area during the report period;(7) average populations within the report area during the report period and the base year, 1990; and(8) the calculated recycling, waste stream reduction, and per capita waste generation rates using the formulas contained in §328.9 of this title (relating to Recycling, Waste Stream Reduction, and Per Capita Waste Generation Rates).(e) Materials recovered or diverted for recycling. To the extent possible, materials recovered or diverted for recycling shall be reported according to the following categories, using the major categories when finer detail is not possible:(1) food waste;(2) glass:(A) glass containers;(B) plate glass; and(C) other glass;(3) leather and hides;(4) metal:(A) aluminum:(i) cans and containers; and(ii) other aluminum;(B) ferrous metal:(i) steel cans and containers; and(ii) other ferrous metal;(C) other nonferrous metal;(5) paper and paperboard:(A) computer printout;(B) white ledger;(C) colored ledger;(D) old corrugated cartons/kraft;(E) old newspaper;(F) printers' waste;(G) old magazines;(H) mixed paper; and(I) other paper and paperboard;(6) plastic:(A) plastic containers:(i) polyethylene terephthalate (PET, or Code 1 plastic);(ii) high density polyethylene (HDPE, or Code 2 plastic);(iii) polyvinyl chloride (PVC, or Code 3 plastic);(iv) low density polyethylene (LDPE, or Code 4 plastic);(v) polypropylene (PP, or Code 5 plastic);(vi) polystyrene (PS, or Code 6 plastic); and(vii) other plastic containers (Code 7 plastic);(B) mixed plastic; and(C) other plastic;(7) rubber;(8) textiles and apparel;(9) wood;(10) yard debris; and(11) other materials, not included elsewhere:(A) asphalt pavement;(B) appliances;(C) batteries:(i) household; and(ii) lead-acid;(D) construction-demolition debris;(E) hazardous household materials;(F) municipal sludge;(G) tires;(H) used oil and oil filters;(I) other inorganic materials;(J) other organic materials; and(K) other municipal solid waste materials.(f) Units. All materials shall be reported in dry tons. For those materials normally measured by volume, the report shall indicate the volumetric quantity and the multiplier used to convert to weight in dry tons.(g) Recycling credit limits. Except for lead-acid batteries, only the amount recycled in addition to 1990 quantities can be credited toward the state recycling goal for materials with an individual recycling rate greater than 80% in the base year, 1990.</content><note type="source"><p>Source Note: The provisions of this §328.8 adopted to be effective September 5, 1999, 24 TexReg 6761; amended to be effective September 12, 2002, 27 TexReg 8561.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scB/s328.9"><num value="328.9">§328.9</num><heading>Recycling, Waste Stream Reduction, and Per Capita Waste Generation Rates</heading><content>(a) Recycling rate. The recycling rate is calculated by dividing the tons of material recovered or diverted for recycling by the tons of total municipal solid waste generated, where the total municipal solid waste generated is the sum of the tons recycled, the tons disposed of, and tons of waste exported minus the tons of waste imported. The formula for the recycling rate can be expressed as follows.Attached Graphic(b) Waste stream reduction rate. The waste stream reduction rate is calculated by dividing the sum of the tons recycled and tons source-reduced by the sum of the tons recycled, tons source-reduced, tons disposed of, and net tons of waste exported. The formula for the diversion rate can be expressed as follows.Attached Graphic(c) Per capita waste generation rates. (1) Per capita annual waste generation rate. The per capita annual waste generation rate is calculated by dividing the annual tons of municipal solid waste generated by the population of the area. The formula for this term can be expressed as follows.Attached Graphic(2) Per capita daily waste generation rate. The per capita daily waste generation rate is calculated by dividing the annual rate, in paragraph (1) of this subsection, by 365 days as follows.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §328.9 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c328/scC"><num value="C">SUBCHAPTER C</num><heading>MANAGEMENT OF LEAD-ACID BATTERIES</heading><section identifier="/us/state/tx/tac/t30/p1/c328/scC/s328.11"><num value="328.11">§328.11</num><heading>Purpose</heading><content>The purpose of the sections in this subchapter is to establish procedures and requirements for the sale and disposal of secondary or storage batteries that are made of a lead-acid combination.</content><note type="source"><p>Source Note: The provisions of this §328.11 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scC/s328.12"><num value="328.12">§328.12</num><heading>Applicability</heading><content>(a) The sections in this subchapter are applicable to persons who are involved in the sale, transportation, collection for recycling, and disposal of lead-acid type storage or secondary batteries regulated by the commission pursuant to the Texas Health and Safety Code, §§361.451-361.454.(b) While these sections are only applicable specifically to lead-acid type storage or secondary batteries, any other type of multi-cell storage or secondary battery, primary battery, nuclear cell, solar cell, or fuel cell should be managed in a similar manner.</content><note type="source"><p>Source Note: The provisions of this §328.12 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scC/s328.13"><num value="328.13">§328.13</num><heading>Disposal of Batteries</heading><content>(a) No person may place a used lead-acid battery in mixed municipal solid waste or discard or otherwise dispose of a lead-acid battery except by delivery to:(1) a battery retailer;(2) a battery wholesaler;(3) a secondary lead smelter; or(4) a collection or recycling facility authorized under the laws of this state or by the Environmental Protection Agency (EPA).(b) A battery retailer shall dispose of used lead-acid batteries only by delivery to:(1) a battery wholesaler or an agent thereof;(2) a secondary lead smelter or an agent thereof;(3) a battery manufacturer for delivery to a secondary lead smelter; or(4) a collection or recycling facility authorized under the laws of this state or by the EPA.</content><note type="source"><p>Source Note: The provisions of this §328.13 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scC/s328.14"><num value="328.14">§328.14</num><heading>Retail Sale of Lead-acid Batteries</heading><content>A battery retailer in Texas shall:(1) accept from the customer, if offered by the customer, at the point of transfer, a used lead-acid battery of the type and in a quantity equal to the number of new lead-acid batteries sold; and(2) post written notice, containing the universal recycling symbol, concerning the sale and disposal of lead-acid batteries. The written notice shall conform to the requirements of §328.16 of this title (relating to Notice Requirements) and shall be provided by the executive director.</content><note type="source"><p>Source Note: The provisions of this §328.14 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scC/s328.15"><num value="328.15">§328.15</num><heading>Wholesale Sale of Lead-acid Batteries</heading><content>A battery wholesaler in Texas shall:(1) accept from the customer, if offered by the customer, at the point of transfer, used lead-acid batteries of the type and in a quantity equal to the number of new lead-acid batteries sold; or(2) if accepting batteries in transfer from a battery retailer or retail facility, remove all used lead-acid batteries from the retail point of collection within 90 days after acceptance; and(3) shall post written notice, containing the universal recycling symbol, concerning the sale and disposal of lead-acid batteries. The notice shall conform to the requirements of §328.16 of this title (relating to Notice Requirements) and shall be provided by the executive director.</content><note type="source"><p>Source Note: The provisions of this §328.15 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scC/s328.16"><num value="328.16">§328.16</num><heading>Notice Requirements</heading><content>(a) A battery retailer or wholesaler shall post in a place visible to all customers a conspicuous notice in both English and Spanish containing the universal recycling symbol concerning the sale and disposal of lead-acid batteries.(b) The notice shall be a sign at least 8 1/2 inches by 11 inches in size and shall be provided by the executive director, and shall contain the following language:(1) "It is illegal (Class C Misdemeanor) to discard or improperly dispose of a motor-vehicle battery or other lead-acid battery";(2) "Recycle your used batteries"; and(3) "State law requires us to accept used motor-vehicle batteries for recycling in exchange for new batteries purchased."</content><note type="source"><p>Source Note: The provisions of this §328.16 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scC/s328.17"><num value="328.17">§328.17</num><heading>Recordkeeping</heading><content>(a) Battery retailers and battery wholesalers shall, as a minimum, maintain a record of the number of lead-acid batteries that are purchased, the number of lead-acid batteries that are accepted in return for new batteries sold (trade-ins), and the number of lead-acid batteries that are delivered to a disposal facility.(b) The records required under this section shall be maintained on a monthly basis and shall be kept for a period of three years. These records shall be made available to any representative of the executive director upon request.</content><note type="source"><p>Source Note: The provisions of this §328.17 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scC/s328.18"><num value="328.18">§328.18</num><heading>Inspection of Battery Retailers</heading><content>A representative of the executive director may enter any place, building, or premise of a battery retailer for the purpose of inspecting the facility for compliance with this subchapter. The inspection or investigation will be made only during regular business hours or by appointment for any other time.</content><note type="source"><p>Source Note: The provisions of this §328.18 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scC/s328.19"><num value="328.19">§328.19</num><heading>Penalties</heading><content>(a) It is a violation of this subchapter for a battery retailer or wholesaler to:(1) fail to maintain correct and complete records;(2) fail to comply with the provisions of this subchapter; or(3) fail to comply with written warnings, citations, or directions given by the commission.(b) A battery retailer or wholesaler who violates this subchapter is subject to the assessment of administrative penalties and/or civil penalties as prescribed by state law.</content><note type="source"><p>Source Note: The provisions of this §328.19 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c328/scD"><num value="D">SUBCHAPTER D</num><heading>USED OIL FILTER MANAGEMENT AND RECYCLING</heading><section identifier="/us/state/tx/tac/t30/p1/c328/scD/s328.21"><num value="328.21">§328.21</num><heading>Definitions</heading><content>The following words, terms, and abbreviations when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise.(1) Bill of lading--A shipping document that confirms receipt of a shipment.(2) Bulk filter container--A portable device that:(A) is part of an integrated delivery and retrieval system; and(B) has a capacity greater than 330 gallons.(3) Component parts--The severable parts of an oil filter and includes oil present in an oil filter.(4) Do-it-yourselfer (DIY)--An individual who removes a used oil filter in the process of an oil change or automotive repair from the engine of a light duty motor vehicle, small utility engine, noncommercial motor vehicle, or farm equipment owned or operated by the individual.(5) Generator--Person whose activities produce used oil filters. The term does not include do-it-yourselfers.(6) Process--To prepare a used oil filter for recycling, steel recovery, energy recovery, or proper disposal.(7) Processor--A person that processes used oil filters generated by another person. The term does not include a generator that consolidates, drains, or crushes used oil filters for off-site recycling or disposal.(8) Store--To hold in a location for any period.(9) Storage facility--A location that stores used oil filters before transportation, processing, recycling, or disposal of the filters. The term does not include the location of a generator.(10) Transporter--A person that transports used oil filters to a location for storage, processing, recycling, or disposal.(11) Used oil filter--Any device that is an integral part of an oil flow system, the primary purpose of which is to remove contaminants from flowing oil contained in the system, and that as a result of use has become contaminated and unsuitable for its original purpose, is removed from service, and contains entrapped used oil. The term does not include a filter attached to the equipment containing the oil flow system. This term continues to apply regardless of prior processing until, but not after, the filter has been burned for steel recovery or energy recovery or it is separated into its component parts.</content><note type="source"><p>Source Note: The provisions of this §328.21 adopted to be effective December 23, 1999, 24 TexReg 11512.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scD/s328.22"><num value="328.22">§328.22</num><heading>Applicability</heading><content>(a) This subchapter applies to a used oil filter only if the filter has been determined to be nonhazardous or exempt from being hazardous waste due to draining of used oil per Title 40 Code of Federal Regulations, §261.4(b)(13) (as amended through August 24, 1998), and the filter has not been:(1) separated into its component parts; or(2) burned for:(A) steel recovery; or(B) energy recovery.(b) This subchapter does not apply to:(1) an industrial generator that is:(A) registered with the agency as an industrial or hazardous waste facility; or(B) under the waste management authority of a state agency other than the commission.(2) a do-it-yourselfer.</content><note type="source"><p>Source Note: The provisions of this §328.22 adopted to be effective December 23, 1999, 24 TexReg 11512.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scD/s328.23"><num value="328.23">§328.23</num><heading>General Requirements</heading><content>(a) A person may not store, process, or dispose of a used oil filter in a manner that results in the discharge of oil into soil or water.(b) A person may not knowingly place on land a used oil filter that contains used oil unless the used oil filter is in a container.(c) A bulk filter container used to store used oil filters:(1) must not leak; and(2) must be securely closed, waterproof, and in good condition.(d) A used oil filter may not be intentionally or knowingly placed in or accepted for disposal in a landfill permitted by the commission.</content><note type="source"><p>Source Note: The provisions of this §328.23 adopted to be effective December 23, 1999, 24 TexReg 11512.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scD/s328.24"><num value="328.24">§328.24</num><heading>Registration and Reporting</heading><content>(a) A transporter, storage facility, or processor may not store, process, recycle, or dispose of used oil filters unless the person is registered with the agency. These persons must register using an agency form and have a valid registration prior to operation. Mail the form to the Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711-3087. For further information, call 1-888-TX CRUDE or for forms and publications use Internet address: http://www.tnrcc.state.tx.us.(b) Unless the person is registered with the agency as a storage facility, a person may not store used oil filters:(1) that in the aggregate have a volume greater than six 55-gallon drums; or(2) in more than one bulk filter container.(c) Transporters, storage facilities, and processors must renew their registrations by January 25th of every even-numbered year, and must report by January 25th of every even-numbered year, in accordance with paragraphs (1)-(4) of this subsection.(1) The report must include the number of used oil filters the person transported, stored, or processed in the preceding two calendar years.(2) Registration renewal and reporting information must be entered on an agency form.(3) The registration and reporting information must be mailed to the Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711-3087. For further information, call 1-888-TX CRUDE or for forms and publications use Internet address: http://www.tnrcc.state.tx.us.(4) A transporter, storage facility, or processor who initially registers after December 31, 1999 must, after its initial registration has been active for two years, renew its registration by January 25th of every even-numbered year.(d) Persons transporting used oil filters may transport up to two 55-gallon containers, or the volumetric equivalent, without registering as a transporter.(e) A transporter, storage facility, or processor is required to provide evidence of financial responsibility with registration as the executive director deems necessary to assure that the facility has sufficient assets to provide for proper closure. Financial assurance for closure may be demonstrated by using one or more of the following mechanisms: trust funds, surety bonds guaranteeing payment or performance, letters of credit, insurance, or financial test and corporate guarantee. These mechanisms shall be prepared on forms approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §328.24 adopted to be effective December 23, 1999, 24 TexReg 11512.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scD/s328.25"><num value="328.25">§328.25</num><heading>Shipment Records</heading><content>(a) Each shipment of used oil filters must be accompanied by a bill of lading. The bill of lading must demonstrate a transfer of custody of the used oil filters from the shipping facility to the registered transporter, and from the transporter to the registered storage facility or processor. The bill of lading must contain the date of such transfer, the name and physical address of the shipping facility, the name and address of the receiving facility, and the name and address of the transporter, the quantity of used oil filters removed and any other information which the executive director may deem necessary to protect the environmental quality of the State of Texas. The shipping facility must verify the information within the bill of lading, and demonstrate concurrence by the signature of an authorized representative.(b) A copy of the bill of lading for each shipment of used oil filters must be maintained by the generator of the filters, transporter of the filters, storage facility at which the filters were stored, and processor of the filters for at least three years after the date the filters were transported, stored, or processed.(c) The copies of bills of lading must be made available for agency personnel to inspect at any reasonable time.</content><note type="source"><p>Source Note: The provisions of this §328.25 adopted to be effective December 23, 1999, 24 TexReg 11512.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scD/s328.26"><num value="328.26">§328.26</num><heading>Limitations on Storage</heading><content>(a) A storage facility may not store a used oil filter for more than 120 days.(b) A transporter may not store a used oil filter for more than ten days.(c) A processor may not store a used oil filter for more than 30 days before it is processed.(d) A processor that stores used oil filters in a container shall label each container clearly with the phrase "Used Oil Filters."</content><note type="source"><p>Source Note: The provisions of this §328.26 adopted to be effective December 23, 1999, 24 TexReg 11512.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scD/s328.27"><num value="328.27">§328.27</num><heading>Variances</heading><content>(a) The executive director may grant an individual variance to allow:(1) a generator to store used oil filters in a greater aggregate volume than the volume prescribed in §328.24(b) of this title (relating to Registration and Reporting); or(2) a person to store used oil filters for a period longer than the period prescribed for that person in §328.26 of this title (relating to Limitations on Storage).(b) Factors to be considered in determining whether a variance should be granted include but are not limited to, the risk to human health and the environment that is posed by the requested variance. The burden of justifying the need for a variance is on the requestor, and the requestor must submit the information in writing to clearly indicate the issues involved, the reason(s) for the request, and both positive and negative impacts that may result from the granting of the variance. Prior approval of the variance must be obtained before any change is authorized. If a variance is denied, the executive director will provide an explanation of the reason(s) for the denial in a written response to the requestor.(c) The executive director may not grant a variance under this section for a period longer than two years.</content><note type="source"><p>Source Note: The provisions of this §328.27 adopted to be effective December 23, 1999, 24 TexReg 11512.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scD/s328.28"><num value="328.28">§328.28</num><heading>Spill Prevention and Control</heading><content>Each registered storage facility and each facility of a registered processor shall develop a plan to prevent spills and respond to spills in accordance with the federal spill prevention, control, and countermeasure requirements provided by Title 40 Code of Federal Regulations, Part 112 (as amended through July 1, 1998).</content><note type="source"><p>Source Note: The provisions of this §328.28 adopted to be effective December 23, 1999, 24 TexReg 11512.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c328/scE"><num value="E">SUBCHAPTER E</num><heading>GRANTS PERTAINING TO THE COLLECTION, REUSE, AND RECYCLING OF USED OIL</heading><section identifier="/us/state/tx/tac/t30/p1/c328/scE/s328.41"><num value="328.41">§328.41</num><heading>Purpose and Scope</heading><content>This subchapter describes procedures for announcing, awarding, and administering assistance grants relating to and supporting household do-it-yourselfer used oil collection, reuse, and recycling activities in Texas.</content><note type="source"><p>Source Note: The provisions of this §328.41 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scE/s328.42"><num value="328.42">§328.42</num><heading>Applicability</heading><content>The requirements of this subchapter are applicable to the award or distribution, by the commission, of funds for the purpose of responding to and/or complying with those authorizations and requirements set forth in the Health and Safety Code, §371.023, which relate to the awarding of grants for household do-it-yourselfer used oil recycling activities.</content><note type="source"><p>Source Note: The provisions of this §328.42 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scE/s328.43"><num value="328.43">§328.43</num><heading>Authority</heading><content>The agency's authority to conduct and manage the activities described in this subchapter is derived from the Used Oil Collection, Management, and Recycling Act, Health and Safety Code, Chapter 371.</content><note type="source"><p>Source Note: The provisions of this §328.43 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scE/s328.44"><num value="328.44">§328.44</num><heading>Definitions of Terms and Abbreviations</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Advisory committee--A seven member, commission-appointed, committee established in accordance with the Health and Safety Code, §371.023(c), for the purpose of assisting the commission in carrying out an effective used oil recycling grant program. The advisory committee shall:(A) recommend criteria for grants;(B) establish guidelines for allowable administrative expenses; and(C) recommend grant recipients to the commission based on the used oil collection, reuse and recycling needs of this state.(2) Container--A portable device in which a material is stored, transported, treated, disposed of, or otherwise handled.(3) DIY--Do-it-yourselfer.(4) Do-it-yourselfer used oil collection center--A site or facility that accepts or aggregates and stores used oil collected only from household do-it-yourselfers. A registered do-it-yourselfer used oil collection center that is also a used oil generator may commingle household do-it-yourselfer used oil with the used oil it generates.(5) Household do-it-yourselfer used oil--Oil that is derived from a household, including used oil generated by an individual through the maintenance of the individual's personal vehicle or equipment.(6) Local government--A county, incorporated city or town, or any political subdivision of the state which has jurisdiction over two or more counties or parts of two or more counties, and which has been granted the power by the legislature to regulate solid waste handling or disposal practices or activities within its jurisdiction in accordance with the Health and Safety Code, §361.165.(7) Private entity--Any business or private organization, including nonprofit organizations, involved in, or desiring to become involved in for the purpose of supporting, used oil collection, reuse and recycling, as may be further determined or described from time to time by the Advisory Committee and subsequently defined in commission-released RFAs.(8) RFA--Request for Applications.(9) Used oil collection center--A site or facility that is registered by the commission to manage used oil and accepts, aggregates, or stores used oil collected from:(A) used oil generators regulated under 40 CFR Part 279, Subpart C, who transport used oil to the used oil collection center in shipments of not more that 55 gallons under 40 CFR Section 279.24; or(B) household do-it-yourselfers.</content><note type="source"><p>Source Note: The provisions of this §328.44 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scE/s328.45"><num value="328.45">§328.45</num><heading>Eligible Grant-Supported Activities</heading><content>(a) Assistance grants awarded under this subchapter shall be for projects that feature or include one or more of the following activities:(1) curbside pickup of containers of household do-it-yourselfer used oil by a local government or its representative;(2) retrofitting of municipal solid waste equipment to facilitate curbside pickup of household do-it- yourselfer used oil;(3) establishment of do-it-yourselfer used oil collection centers and used oil collection centers at locations accessible to the public including landfills, fire stations, retail stores, quick lubrication centers, and automobile repair shops;(4) provision of containers and other materials and supplies that can be used to store household do-it- yourselfer used oil for pickup or delivery to a do-it-yourselfer used oil collection center in an environmentally sound manner; and(5) any other do-it-yourselfer related used oil activity determined eligible for receipt of grant funding by the advisory committee appointed by the commission in accordance with the Health and Safety Code, §371.023(c).(b) Grant funds provided under this subchapter shall not be used to:(1) acquire land or an interest in land;(2) construct any waste disposal facility or waste disposal facility improvements (Facilities designed primarily for the collection and temporary storage for recycling of do-it-yourselfer used oil are not considered disposal facilities.);(3) prepare, or pay others for the preparation of, final designs or working drawings of any waste disposal facility or waste disposal facility improvements;(4) pay for the disposal of any waste material;(5) pay for any food, drink, or entertainment, except for necessary meals for the grant recipient's own officials or employees while on official travel status to an event or activity authorized under the grant contract;(6) pay for lobbying, at any governmental level, either for or against, concerning or related to any proposed legislation or legislative initiative; or(7) carry out any activity not expressly mentioned in the RFP or RFA.</content><note type="source"><p>Source Note: The provisions of this §328.45 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scE/s328.46"><num value="328.46">§328.46</num><heading>Eligible Applicants</heading><content>(a) Only those local governments and private entities that encourage, and formally commit to utilizing all received grant funds for the collection, reuse and recycling of household do-it-yourselfer used oil shall be eligible to apply for or receive a grant under this subchapter.(b) Eligible local governments and private entities desiring to receive an assistance grant under this subchapter shall submit, within the time frames announced by the commission pursuant to §328.47 of this title (relating to Grant Announcement and Recipient Selection), formal project applications utilizing the forms and following the instructions and procedures provided by the commission for such purposes.(c) Recipient selection for any grant or other assistance offered by the commission under this subchapter shall be solely based on the merit of the applications and their compliance with the criteria established by the advisory committee and set forth in the appropriate Request for Applications.</content><note type="source"><p>Source Note: The provisions of this §328.46 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scE/s328.47"><num value="328.47">§328.47</num><heading>Grant Announcement and Recipient Selection</heading><content>(a) The agency shall announce grant funds, select grant recipients, and award assistance grants under this subchapter utilizing a Request for Applications (RFA). Under the RFA process, the agency will: (1) publish a formal notice in the Texas Register advising eligible applicants that the commission is accepting grant applications for household do-it-yourselfer used oil collection, reuse and recycling projects, and that the commission will make grant awards, on a first-come, first-served basis, to those entities whose applications and proposed projects meet certain RFA-specified minimum requirements; (2) make available, upon request, application forms and instructions, together with the specific RFA document that sets forth the established minimum requirements and criteria for application acceptance and award of the grant; (3) accept and process applications, on a first-come, first-served basis; and (4) providing budgeted funds remain available, award grants to those local governments and/or private entities whose applications meet the minimum standards and criteria set forth in the RFA. (b) All grant applications will be reviewed and processed by the executive director's staff to ensure compliance with the requirements of this subchapter, the appropriate RFA, and applicable requirements of Health and Safety Code, Chapter 371. The applications shall also be reviewed and considered by the advisory committee whose statutory duties include recommending grant recipients to the commission based on the used oil collection needs of the state and/or by other public agencies or organizations who have specific responsibilities to review, comment on, or coordinate the selection and/or awarding of state grants. (c) Applicants selected to receive used oil collection, reuse and recycling assistance grants, or other used oil recycling program support under this subchapter, may be required, depending on the specific RFA, to enter into a written contract with the commission as a condition to receiving a grant. The contracts will indicate the amount and type of grant, establish time frames and/or deadlines for completing grant-supported activities and for expending grant-provided funds, describe reporting requirements and payment procedures, and contain standard contract conditions.</content><note type="source"><p>Source Note: The provisions of this §328.47 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c328/scF"><num value="F">SUBCHAPTER F</num><heading>MANAGEMENT OF USED OR SCRAP TIRES</heading><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.51"><num value="328.51">§328.51</num><heading>Purpose</heading><content>The purpose of the rules in this subchapter is to establish procedures and requirements for the safe storage, transportation, processing, utilization, and disposal of used or scrap tires or tire pieces.</content><note type="source"><p>Source Note: The provisions of this §328.51 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.52"><num value="328.52">§328.52</num><heading>Applicability</heading><content>(a) This subchapter does not preempt local ordinances regarding the management of used or scrap tires that are as or more stringent than the regulations in this subchapter. All persons or facilities regulated by this subchapter must comply with all applicable local ordinances that are not inconsistent with the regulations in this subchapter. A local ordinance is not inconsistent with this subchapter if a regulated person or facility can simultaneously comply with both the state and local requirements.(b) This subchapter applies to persons that are involved in the generation, transportation, processing, storage, utilization, and disposal of used or scrap tires or tire pieces that are classified as municipal solid waste, recyclable materials, or inert fill materials. This subchapter does not apply to whole used or scrap tires that are classified as industrial solid waste.(c) All used or scrap tires or tire pieces, except for tires collected incidentally by municipal solid waste collection vehicles, are subject to manifesting by generators according to the requirements in §328.58 of this title (relating to Manifest System).(d) Scrap tires that are off-the-road tires intended for use on heavy machinery, including, but not limited to, an earth mover/dozer, a grader, or mining equipment are exempt from the time frame requirements to be split, quartered, or shredded when stored at a registered storage site or a permitted landfill. These tires must be shredded, split, or quartered prior to disposal in a manner acceptable to the executive director. The executive director may grant exceptions to this requirement as warranted by the circumstances.</content><note type="source"><p>Source Note: The provisions of this §328.52 adopted to be effective September 5, 1999, 24 TexReg 6761; amended to be effective October 7, 2010, 35 TexReg 8965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.53"><num value="328.53">§328.53</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Other definitions, pertinent to specific sections, are contained within the appropriate sections.(1) 30-Day supply--An amount equal to the highest documented monthly consumption of tires consumed for energy recovery or legitimately recycled in the six-month period preceding the month for which the supply is being calculated. A facility in operation for less than six months shall submit an estimate of a 30-day supply for commission review, evaluation and approval.(2) Alter--To modify any record or document kept or received by any entity subject to the requirements of this subchapter.(3) Authorized representative--A facility owner or a person designated in writing by a facility owner to sign documents, make commitments for the entity, and represent the entity in all matters related to the application for registration or permit.(4) Authorized scrap tire facility--A facility authorized to accept scrap tires including, but not limited to, a registered scrap tire storage site, scrap tire facility or permitted landfill.(5) Closure--The cessation of acceptance of used or scrap tires or tire pieces for processing and/or storage which results in taking the facility out of service.(6) Facility--All contiguous land and structures, other appurtenances, and improvements on the land used for the storage or processing of scrap tires.(7) Fleet operator--An entity that owns or operates more than 15 vehicles and generates 30 or more used or scrap tires per calendar quarter.(8) Generator--An entity, except a scrap tire energy recovery facility and a scrap tire recycling facility, that is a fleet operator, is an automotive dismantler, or is a whole new or used tire retailer, wholesaler, manufacturer, recapper or retreader.(9) Good used tire--A used tire, not including a recapped or retreaded tire, suitable for continued use for its original intended purpose.(10) Land reclamation--The filling, rehabilitating, improving and restoring of excavated and/or deteriorated and/or disturbed land for the purpose of restoring the land to its approximate natural grade and to prepare or reclaim the land for re-use.(11) Land reclamation projects using tires (LRPUT)--A project to fill, rehabilitate, improve and/or restore already excavated, deteriorated or disturbed land, which uses no more than 50% by volume of tire pieces along with inert fill materials, for the purpose of restoring the land to its approximate natural grade and to prepare or reclaim the land for re-use. Projects for the use of used or scrap tires or tire pieces as a component of an On-Site Sewage Facility as defined in §285.50 of this title (relating to General Requirements for Registration and Certification) are not included in this definition.(12) Manufacturer reject tire--A tire rendered defective in the manufacturing process, whether the tire is determined to be defective before or after consumer purchase.(13) Off-the-road tire--A tire intended for use on heavy machinery, including, but not limited to, an earth mover/dozer, a grader, agricultural machinery or mining equipment. Truck tires are not off-the- road tires.(14) Operator--The person responsible for the overall operation of the facility.(15) Owner--The person or company who owns the facility or part of a facility.(16) Processing--The extraction of materials from or the transfer, volume reduction, conversion to energy or separation and preparation of solid waste for reuse or disposal.(17) Professional engineer--A person licensed by The Texas Board of Professional Engineers to practice engineering in the State of Texas.(18) Scrap tire--A whole tire that can no longer be used for its original intended purpose. A whole used tire that can be used, reused or legally modified to be reused, for its original intended purpose is not a scrap tire.(19) Scrap tire facility--A facility that processes, conducts energy recovery or recycles used or scrap tires or tire pieces.(20) Scrap tire storage site--A registered facility where more than 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or more than 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in enclosed and lockable containers. The term does not include a transportation facility or a scrap tire facility that stores on-site no more than a 30 calendar day supply of used or scrap tires or tire pieces.(21) Scrap tire transporter--A registered entity that collects and transports used or scrap tires or tire pieces for storage, processing, recycling or energy recovery.(22) Tire monofill--A below-ground depository, landfill or landfill trench consisting of greater than 50% by volume of tires or tire pieces.(23) Tire piece--A particle of a scrap tire or scrap tire piece that has been split, quartered or shredded to a usable size such as two-inch minus, or other size required by an industry user or recycler.(24) Tire processor--A registered scrap tire facility where used or scrap tires or tire pieces are collected and shredded or baled for delivery to a scrap tire storage site, or to a facility that recycles, reuses or recovers the energy from the tire pieces. Mobile tire processing facilities shall be considered scrap tire facilities and required to comply with all applicable requirements contained in this subchapter relating to scrap tire facilities.(25) Tire shredder--A piece of equipment used to split, shred or quarter tires, whether stationary, or mounted on wheels or skid mounted.(26) Trailer--For the purposes of this chapter only, an enclosed, portable and lockable container for the storage of less than 2,000 used or scrap tires. This may include a trailer, railcar, roll-off container, or dumpster.(27) Transportation facility--A facility such as a marine terminal, rail yard, or trucking facility where scrap tires or tire pieces may be stored for periods longer than 30 consecutive calendar days.</content><note type="source"><p>Source Note: The provisions of this §328.53 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.54"><num value="328.54">§328.54</num><heading>General Requirements</heading><content>(a) An entity that violates the applicable sections of this subchapter shall be subject to any action authorized by law to secure compliance, including the assessment of administrative penalties or civil penalties as prescribed by law, and the suspension or revocation of registration or permit.(b) Before disposal, whole used or scrap tires may not be commingled with any other type of scrap material or solid waste, except for incidental scrap tires picked up in enclosed municipal solid waste collection vehicles.(c) Any permitted municipal solid waste landfill site may store or process whole tires or tire pieces in an unused portion of the property within its permit boundary dedicated to tires only. Storage shall be above ground in controlled storage piles or in enclosed and lockable containers, pursuant to §328.61 of this title (relating to Design Requirements for Scrap Tire Storage Site). A permitted municipal solid waste landfill site shall not store tires or tire pieces in excess of 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in enclosed and lockable containers without prior written approval from the executive director or the commission. Approval of storage or processing shall be by authorization for such storage in an approved Site Development Plan, or, as applicable, through a Class I permit modification under §305.70 of this title (relating to Municipal Solid Waste Class I Modifications) or an amendment under §305.62 of this title (relating to Amendment). The tire storage and/or processing activity shall not be conducted in a manner that will adversely affect operations of the municipal solid waste disposal site, or otherwise endanger human health or the environment.(d) All vehicles and equipment used for the collection and transportation of used or scrap tires or tire pieces, except for those vehicles listed in §328.57 of this title (relating to Transporter Requirements), shall be constructed, operated, and maintained to prevent loss of used or scrap tires or tire pieces during transport and to prevent health nuisances and safety hazards to operating personnel and the public. Collection vehicles and equipment shall be maintained in a sanitary condition to prevent odors and insect breeding. Any vehicle or trailer used to transport used or scrap tires or tire pieces shall be identified on both sides and the rear of the vehicle. The identification shall consist of the name and place of business of the transporter and the commission registration number, using numbers and letters at least two inches tall. Trailers or trucks used to transport used or scrap tires shall either be fully enclosed and lockable, or have sidewalls of sufficient height to contain the load. Trailers and trucks transporting used or scrap tires in excess of the sidewall height of the vehicle shall be covered with a tarp during transit. Trailers and trucks transporting any amount of tire pieces shall be covered with a tarp during transit.(e) A person who, for eventual recycling, reuse, or energy recovery, temporarily stores used or scrap tires in a designated recycling collection area at a permitted landfill may be granted an exemption from shredding, splitting or quartering the scrap tires by the executive director, upon request.</content><note type="source"><p>Source Note: The provisions of this §328.54 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.55"><num value="328.55">§328.55</num><heading>Registration Requirements</heading><content>Registration requirements for scrap tire storage sites, scrap tire facilities, transportation facilities, and transporters are as follows:(1) An application for a registration shall be made on a form obtained from the executive director, upon request. The applicant may deliver the completed application to any commission regional office or mail it to the following address: Texas Commission on Environmental Quality, P.O. Box 13087, Mail Code 174, Austin, Texas 78711-3087. The following registration information must be provided to the executive director:(A) the name, mailing address, county, and telephone and facsimile numbers of the applicant;(B) the name, mailing address, and telephone number of the property owner where the scrap tire storage site, scrap tire facility, or transportation facility is located;(C) the street location of the scrap tire storage site, scrap tire facility, or transportation facility, including county;(D) the approximate number of used or scrap tires or tire pieces (in tons) that will be stored at the scrap tire storage site or the scrap tire facility;(E) the existing land use surrounding the scrap tire storage site, scrap tire facility, or transportation facility; and(F) the tax identification number.(2) The application must be signed by the authorized representative and, if applicable, the professional engineer who assisted in its preparation.(3) Entities that are registered by the executive director shall maintain a copy of their commission registration notice at their designated place of business.(4) A registered entity shall provide written notice to the executive director, within 15 days, if:(A) the mailing address or telephone number of the entity changes;(B) the office or designated place of business is relocated;(C) the applicant's registered name is changed; or(D) the authorized representative has changed. If the authorized representative has changed, a registered entity shall provide a written, signed designation of the new authorized representative, including the representative's name, mailing address, and telephone and facsimile numbers.(5) Within 10 days of a change in ownership, or if a change in operations or management methods occurs such that the existing registration no longer adequately describes current operations or management methods, the registered entity shall submit a new registration application to the executive director. Following a determination, the executive director may issue a new registration, cancel the old registration or transfer the old registration to the new registrant. Timeliness of required submittals may be a factor in the executive director's determination.(6) Annulment, suspension, revocation, or denial of registration, including Land Reclamation Projects Using Tires, procedures are as follows:(A) The executive director may annul, suspend, or revoke a registration or deny an initial or renewal registration for:(i) failure to maintain complete and accurate records required under this chapter;(ii) failure to maintain vehicles in safe working order as evidenced by at least two citations per vehicle from the Texas Department of Public Safety or local traffic law enforcement agencies;(iii) failure to maintain equipment in safe working order;(iv) altering any record maintained or received by the registrant;(v) delivery of used or scrap tires or tire pieces to a facility not registered to handle the tires, unless the facility receiving the tires is exempt from registration under §328.54 of this title (relating to General Requirements);(vi) failure to comply with any rule or order issued by the commission pursuant to the requirements of this chapter;(vii) failure to submit any applicable annual report;(viii) failure to maintain financial assurance as required;(ix) dumping of used or scrap tires or tire pieces illegally;(x) collection, storage, transportation, or processing of used or scrap tires or tire pieces without registration, as required in this section;(xi) failure to notify the executive director of any change in registration information as required in paragraph (4) of this section; or(xii) failure to obtain and maintain necessary approvals or certifications from the Fire Marshal with jurisdiction over the facility location.(B) A registration shall be suspended for a period of one year; however, depending upon the seriousness of the offense(s), the time of suspension may be increased or decreased. A registration is revoked automatically upon a second suspension. If the registration is suspended or revoked, an entity shall not collect, store, transport, or process used or scrap tires or tire pieces regulated under this subchapter.(C) The holder of a registration that has been revoked by the executive director may reapply for registration under this subchapter as if applying for the first time, after a period of at least one year from the date of revocation. If a registration is revoked by the executive director a second time, the revocation shall be permanent.(D) Appeal of annulment, suspension, revocation, or denial of initial or renewal registration procedures are as follows:(i) An opportunity for a formal hearing on the annulment, suspension, or revocation of registration may be requested in writing by the registrant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of proposed revocation or denial of registration has been sent from the executive director to the last known address of the registrant, as shown in the records of the agency.(ii) An opportunity for a formal hearing on the denial of registration or renewal of registration may be requested in writing by the applicant by certified mail, return receipt requested, provided the request is postmarked within 20 days after a notice of denial has been sent from the executive director to the last known address. If the registration is denied, a person shall not collect, store, transport, or process used or scrap tires or tire pieces.(iii) The formal hearing under this paragraph shall be a contested case in accordance with the requirements of the Administrative Procedure Act, Texas Government Code Annotated, §2001 et seq. and the Texas Solid Waste Disposal Act, Texas Health and Safety Code Annotated Chapter 361 and the rules of the commission.</content><note type="source"><p>Source Note: The provisions of this §328.55 adopted to be effective September 5, 1999, 24 TexReg 6761; amended to be effective October 7, 2010, 35 TexReg 8965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.56"><num value="328.56">§328.56</num><heading>Generator Requirements</heading><content>(a) Generator registration requirements include the following.(1) Generators storing more than 500 tires shall obtain a registration number from the executive director. The generator must contact the executive director, identify the business as a generator, provide the business name, tax identification number, mailing address, physical location, and the city and county where the generator is located.(2) The generator shall notify the executive director within 15 days, in writing, of any changes to the generator information.(b) Each generator shall be responsible for ensuring that scrap tires or scrap tire pieces are transported by a registered transporter to an authorized facility.(c) Each generator shall use manifests, work orders, invoices or other records to document the removal and management of all scrap tires generated on-site.(d) The following requirements apply to on-site storage by generators:(1) Generators may store used or scrap tires or tire pieces at the location where they are generated, provided the total number of used or scrap tires does not exceed 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in trailers.(2) Generators who store used or scrap tires in excess of 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in trailers shall be required to obtain a scrap tire storage registration pursuant to §328.55 of this title (relating to Registration Requirements);(3) Retailers and wholesalers who sell good used tires as a commodity shall do so only from stock that has been sorted, marked, classified, and arranged in an organized manner for sale to the consumer, or has been designated on the manifest as removed for reuse by a registered transporter. Used tires that are to be resold as commodities, but are not sorted, marked, classified, and arranged in an organized manner for sale to the consumer, shall be considered as stockpiled scrap tires and the site shall be subject to registration as a scrap tire storage site; and(4) Tires stored outside shall be monitored for vectors, and appropriate vector control measures shall be utilized at least once every two weeks.(5) Generators who store more than 500 used or scrap tires are exempt from the requirement to shred, split, or quarter the used or scrap tires provided that the tires are awaiting transport.(e) A generator of used or scrap tires may transport its scrap tires between its own business locations or to an authorized facility without a transporter registration, but must still comply with all manifesting requirements in §328.58 of this title (relating to Manifest System) and record keeping requirements in §328.57 of this title (relating to Transporter Requirements).</content><note type="source"><p>Source Note: The provisions of this §328.56 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.57"><num value="328.57">§328.57</num><heading>Transporter Requirements</heading><content>(a) Applicability. This section establishes standards applicable to transporters collecting and hauling used or scrap tires or tire pieces.(b) Exemptions.(1) Used or defective tires shipped back to the manufacturer or manufacturer's representative for adjustment are not required to be transported by a registered transporter, provided the generator retains, for a period of three years, written records of the shipments, indicating the date of shipment, destination and the number of tires in each shipment. These records shall be made available to the executive director upon request.(2) Any person who is registered with the executive director as an On-Site Sewage Facility Installer under §285.50 of this title (relating to General Requirements for Registration and Certification) may transport used or scrap tires or tire pieces for construction of an on-site sewage disposal system without a transporter registration, but must still comply with all manifesting requirements under §328.58 of this title (relating to Manifest System) and record keeping requirements in subsection (d) of this section.(3) Retreaders who haul tires from customers for the purpose of retreading or who return tires to customers after retreading or recapping, do not have to register as transporters; however, they must register as transporters if they haul tires to an authorized facility.(4) Trucks engaged in municipal solid waste collection or commercial route collection which handle incidental loads of used or scrap tires or tire pieces as part of their normal household or commercial collection activities, may transport such incidental small quantities of scrap tires to a landfill, transfer station or other collection point for proper handling without a transporter registration.(5) Transport vehicles owned and operated by municipalities, counties, or other governmental entities or agencies which are used to transport used or scrap tires to an authorized facility or to a facility used by local or other governmental entities or agencies to collect used or scrap tires shall be exempt from registration under this section; however, each load of used or scrap tires shall be manifested in accordance with §328.58 of this title (relating to Manifest System).(c) General requirements.(1) Transporters shall register their operations with the executive director before conducting business, according to the registration procedures outlined in §328.55 of this title (relating to Registration Requirements).(2) Transporters shall maintain records using a manifest system, as required in §328.58 of this title.(3) Each transporter shall be responsible for ensuring that used or scrap tires or tire pieces are transported to an authorized scrap tire facility.(4) Each transporter shall notify the generator of any changes to the manifest. A written notification must be received by the generator within two weeks of any changes.(d) Maintenance of records. The transporter shall retain all manifests, work orders and invoices showing the collection and disposition of all used or scrap tires and tire pieces. Records shall be retained by the transporter at the designated place of business for a period of at least three years and made available to the executive director upon request.(1) Any change made to the face of an original record shall be made by drawing a single line through the item being changed, ensuring that the item remains legible and readable. To the side of the mark, the person making the change shall place his/her initials with the date of the change.(2) Any change made to the face of an original record shall be accompanied by a written justification stating the reason and purpose for the change. This written justification shall be prepared simultaneously with the change to the original record, attached to the original record, maintained at the designated place of business for a period of at least three years, and made available to the executive director upon request. The justification shall include the date of the change, and the full name and position of the individual making the change.(e) Annual report. Transporters shall submit to the executive director an annual report of their activities from January 1 through December 31 of each calendar year showing the number and type of used or scrap tires collected listed by generator name and address, the disposition of the tires, and the number of whole used or scrap tires delivered to each facility. The report shall be submitted no later than March 1 of the year following the end of the reporting period. The report shall be prepared on a form provided by the executive director.(f) Interstate transportation. Persons who engage in the transportation of used or scrap tires or tire pieces from Texas to other states or countries, or from other states or countries to Texas, or persons who collect or transport used or scrap tires or tire pieces in Texas but have their place of business in another state or country, shall comply with all of the requirements for transporters contained in this subchapter. If such persons also engage in any activity of managing used or scrap tires or tire pieces in Texas by storage, processing or disposal, they shall follow the applicable requirements for operators of such activities. Persons who engage in the transportation of used or scrap tires or tire pieces which do not originate or terminate in Texas, are exempt from these regulations, except for §328.54 of this title (relating to General Requirements).</content><note type="source"><p>Source Note: The provisions of this §328.57 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.58"><num value="328.58">§328.58</num><heading>Manifest System</heading><content>(a) Generators shall obtain from the transporter collecting tires from their place of business and maintain a record of each individual load of used or scrap tires or tire pieces hauled off from their business location. The record shall be in the form of a five-part manifest or other similar documentation approved by the executive director. The generator shall complete the information pertaining to generator name, address, and telephone number, number of tires removed on the manifest, and registration number, if applicable. The generator shall indicate the destination of all used or scrap tires or tire pieces removed from the business location. A representative of the generator shall sign the manifest acknowledging that the information on the manifest is true and correct.(b) The transporter shall complete the information on the manifest pertaining to transporter name and registration number and the transporter's driver's license number and the state where the license was issued. The transporter shall record the number and type of scrap tires removed from the generator and delivered and the location of any whole used or scrap tires removed from the load and delivered. Transporters shall maintain a manifest record of each individual collection and delivery. The transporter shall sign the manifest acknowledging that the information on the manifest form is true and correct. If the transporter removes, for beneficial reuse, all tires from an individually manifested load, the transporter shall return the original manifest to the generator within 60 days of the date of collection.(c) The authorized facility accepting delivery of the used or scrap tires or tire pieces shall complete the information on the manifest pertaining to the authorized facility identification and number or weight of tires or tire pieces accepted for delivery. A representative of the authorized facility shall sign the manifest acknowledging that the information on the manifest form is true and correct. The authorized facility shall ensure that the top original of the five-part manifest is completely filled out and returned to the generator within 60 days of the date and time of collection as indicated in Section 1 of the manifest.(d) A generator shall obtain the completed manifest within 60 days after the scrap tires or tire pieces were transported off-site by the transporter.(e) The generator shall notify the appropriate commission regional office of any transporter or authorized scrap tire facility that fails to complete the manifest, alters the generator portion of the manifest, or fails to return the manifest within three months after the off-site transportation of the used or scrap tires or tire pieces.(f) Originals of manifests, work orders, invoices or other documentation used to support activities related to the accumulation, handling, and shipment of used or scrap tires or scrap tire pieces shall be retained by the generator for a period of three years. All such records shall be made available to the executive director upon request.(1) Any change made to the face of an original record shall be made by drawing a single line through the item being changed, ensuring that the item remains legible and readable. To the side of the mark, the person making the change shall place his or her initials with the date of such change.(2) Any change made to the face of an original record shall be accompanied by a written justification stating the reason and purpose for the change. This written justification shall be prepared simultaneously with the change to the original record, attached to the original record, maintained at the designated place of business for a period of at least three years, and made available to the executive director upon request. The justification shall include the date of the change, and the full name and position of the individual making the change.(3) Should the executive director identify discrepancies/errors in records, an opportunity will be given to justify, in writing, any such errors or discrepancies.</content><note type="source"><p>Source Note: The provisions of this §328.58 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.59"><num value="328.59">§328.59</num><heading>Storage of Used or Scrap Tires or Tire Pieces</heading><content>(a) Applicability. This section establishes standards applicable to persons that store or intend to store more than 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or more than 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in trailers on any public or privately owned property. Persons that store used or scrap tires or tire pieces shall register in accordance with this subchapter. This subchapter does not apply to the use of tires in the storage, protection, or production of agricultural commodities.(b) General requirements.(1) All owners and/or operators shall properly register their property with the executive director if the intended use of the property is for the storage of used or scrap tires or tire pieces, pursuant to §328.55 of this title (relating to Registration Requirements).(2) When a properly registered storage site begins operations, the owner or operator shall file in the county deed records an affidavit to the public advising that the land has been used for a tire storage facility.(3) Owners and/or operators shall ensure that the tire transporters or mobile tire processors that deliver scrap tires or tire pieces to their registered scrap tire storage site have manifested the used or scrap tires or tire pieces, pursuant to §328.58 of this title (relating to Manifest System).(4) Owners and/or operators of scrap tire storage facilities shall obtain all required state and local permits, licenses, or registrations and operate in compliance with such permits, licenses, or registrations, or other applicable state and local codes.(5) Owners and/or operators shall maintain a copy of the mechanism for financial assurance on-site as specified in Chapter 37, Subchapter M of this title (relating to Financial Assurance Requirements for Scrap Tire Sites) which shall be made available for inspection by the executive director or authorized agents or employees of local governments having jurisdiction to inspect the storage facility.(6) Owners and/or operators shall submit to the executive director an annual summary of their activities from January 1 through December 31 of each calendar year, showing the number and disposition of used or scrap tires or tire pieces received, and the number of used or scrap tires or tire pieces removed from the facility. The annual report shall be submitted no later than March 1 of the year following the end of the reporting period. The annual report shall be prepared on a form provided by the executive director.</content><note type="source"><p>Source Note: The provisions of this §328.59 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.60"><num value="328.60">§328.60</num><heading>Scrap Tire Storage Site Registration</heading><content>(a) Registration required. Persons who store more than 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in enclosed and lockable containers at a facility shall be required to obtain a scrap tire storage site registration for that facility from the executive director pursuant to §328.55 of this title (relating to Registration Requirements). Storage activities shall not begin until the executive director approves the registration.(b) Application requirements.(1) The application for a scrap tire storage site registration, amended registration, or renewal shall consist of: the application form; site and surrounding area information; engineering information, including a site layout plan and a site operating plan; and evidence of financial assurance as required under this section.(2) Upon filing a registration application, the applicant shall mail a copy of the application to the appropriate county judge and shall mail notice that an application has been filed to the appropriate regional council of government and the appropriate mayor if the proposed facility is to be located within the corporate limits or extraterritorial jurisdiction of a city. Proof of mailing shall be provided in the form of return receipts for registered mail.(3) Upon filing a registration application, the facility owner or operator shall provide notice to the general public by means of a notice by publication and a notice by mail. Each notice shall specify both the name, affiliation, address, and telephone number of the applicant and of the commission employee who may be reached to obtain more information about the application to register the site. The notices shall specify that the registration application has been provided to the county judge and that it is available for review by interested parties. The applicant shall publish notice in the county in which the facility is located, and in adjacent counties. Notice shall be published in a newspaper of general circulation. The published notice shall be published once a week for three weeks. The applicant should attempt to obtain publication in a Sunday edition of a newspaper. The notice by certified mail, return receipt requested, shall be sent to all adjacent landowners and all owners of property within 500 feet of the boundary of the facility; the health authorities of the city and county in which the facility will be located, if applicable; and the appropriate state senator and representative for the area encompassing the facility.(4) Applications shall be submitted in triplicate either in writing or through an electronic reporting system as allowed by the executive director.(5) Preparation of the application shall be in accordance with the requirements of the Texas Engineering Practice Act, Texas Occupations Code, Chapter 1001. Each sheet of engineering plans, drawings, maps, calculations, computer models, cost estimates, and the title or contents page of the application shall be signed and sealed by a professional engineer in accordance with the Rules of the Texas Board of Professional Engineers.(6) Drawings shall be legible and include a dated title block, scale, and responsible engineer's seal, if required. If color coding is used, it should be legible and the code distinct when reproduced on black and white photocopy machines. Drawings shall be submitted using a standard engineering scale.(7) Each map or plan drawing shall have a north arrow, a legend and a reference to the base map source and date if the map is based upon another map. The latest revision of all maps shall be used. Maps shall show the following:(A) all structures and inhabitable buildings within 500 feet of proposed site;(B) location of all roads within one mile of the site that will normally be used to access the site;(C) latitudes and longitudes;(D) area streams;(E) the property boundary of the site; and(F) drainage, pipeline, and utility easements within or adjacent to the site.(8) The applicant or an authorized representative shall provide a signed statement representing that he or she: is familiar with the application and all supporting data; is aware of all commitments represented in the application; is familiar with all pertinent requirements in these regulations; and agrees to develop and operate the scrap tire storage site in compliance with the application, applicable local and state regulations, and any special provisions that may be imposed by the executive director.(9) Site and surrounding area information includes the following:(A) Maps.(i) Location maps. These maps shall be all or a portion of county maps prepared by Texas Department of Transportation. At least one general location map shall be at a scale of one-half inch equals one mile. These maps may be obtained at a nominal cost from the nearest District Highway Engineer Office or by writing to: Texas Department of Transportation, Attention: Transportation Planning Division, P.O. Box 5020, Austin, Texas, 78726-5020.(ii) Topographic maps. These maps shall be United States Geological Survey 7-1/2-minute quadrangle sheets or equivalent, marked to show the storage site boundaries and roadway access. These maps may be obtained at a nominal cost from any United States Geological Survey, Federal Center.(iii) Land ownership map and list. This map shall locate the property owned by potentially affected landowners. The map shall show all property ownership within 500 feet of the site. A list shall be provided that gives each property owner's and easement holder's name and mailing address. The list shall be keyed to the Land Ownership Map.(iv) Floodplain maps. These maps shall be the appropriate Federal Emergency Management Agency maps or other demonstration acceptable to the executive director indicating the location of any 100-year flood plain which may exist within the property boundary or surrounding area.(B) Legal description. A legal description of the storage facility and the volume and page number of the deed record, or if platted property, the book and page number of the plat record of only that acreage encompassed in the application.(C) Property owner affidavit. A statement from the property owner shall be submitted on a form provided by the executive director; and shall be witnessed and notarized. The form shall include:(i) the legal description of the site;(ii) acknowledgment that the State of Texas may hold the property owner of record either jointly or severally responsible for the operation, maintenance, and closure and post-closure care of the site;(iii) acknowledgment that the owner has a responsibility to file in the county deed records an affidavit to the public advising that the land has been used for a tire storage facility, at the time as the site actually begins operating; and(iv) acknowledgment that the site owner or operator and the State of Texas shall have access to the property during the active life and for a period of not less than five years after closure for the purpose of inspection and maintenance.(D) Fire marshal approval. The fire marshal with jurisdiction over the facility location shall approve the fire protection system. A letter from the fire marshal shall be included in the application stating that the fire marshal has reviewed and approved the fire protection aspects of the application as well as the design of the all-weather roads to accommodate fire fighting vehicles. The fire marshal shall sign and date the Site Layout Plan.(10) Engineering information includes the following:(A) Site layout plan. The site layout plan shall include:(i) location of storage areas;(ii) location of fire lanes and fire control facilities;(iii) security fencing, gates and gatehouse, site entrance, and access roads and fire lanes in accordance with §328.61 of this title (relating to Design Requirements for Scrap Tire Storage Site);(iv) location of buildings; and(v) location and description of processing equipment.(B) Drainage plan. A drainage plan showing drainage flow throughout the scrap tire storage site area, locations of streams, and any other important drainage feature of the facility. Calculations shall be presented to show that normal drainage patterns will not be significantly altered. If the executive director determines that significant alteration will occur, the owner/operator shall design and provide additional surface drainage controls which shall be designed and provided to mitigate the effects of the altered watershed, as required by the executive director.(C) Fire plan. The fire plan and all revisions shall be maintained at the site, with copies provided to all local fire departments and other emergency response teams, and shall include guidance or instruction on the following:(i) roles to be assumed by on-site personnel (example: fire-fighting coordinator, equipment custodian, hose operator, etc.) in the event of a fire, duty stations, and procedures to be followed by these persons;(ii) arrangements agreed to by local fire departments, police departments, hospitals, contractors, nearby businesses and industries that can be called for assistance, and state and local emergency response teams. In this regard, a letter from each of these entities shall be included in the fire plan, which letters shall acknowledge receipt of a copy of the fire plan, and agreement to participate as stated in the fire plan.(iii) names, addresses, and telephone numbers of these emergency response teams (fire, police, medical, etc.) that are to be included in the plan. The fire plan must include a map of the general area of the site that shows the site location, the location of the emergency response teams included in the plan (fire stations, police stations, hospitals, etc.). The plan shall also include the best route for these emergency response teams to take from their location to the site location;(iv) names, addresses, and telephone numbers of all site employees that are qualified to act as emergency coordinator(s) (this list must be kept up to date, and where more than one person is listed one must be designated as primary coordinator and the others as alternates);(v) a list of all emergency equipment at the facility (fire extinguishers, protective clothing items, hoses, pumps, axes, shovels, detention ponds, water storage tanks, fire hydrants, signal and alarm system equipment, decontamination equipment, etc.), a copy of the Site Layout Plan (to be posted at several prominent locations on the site as well as included in the fire plan) drawing that clearly marks the location of these items as well as personnel assembly points and evacuation routes from the site and from buildings on the site, and a narrative description of where these items are kept or located on site as well as a description of how the items are used (if applicable) and their capabilities;(vi) an evacuation procedure for facility personnel where there is a possibility that evacuation could be necessary, evacuation routes, alternate routes, and signals to be used by the emergency coordinator(s) for the various necessary procedures; and(vii) information about any insurance held by the company that would cover fire damage, loss, and cleanup.(D) Cost estimate for closure. The applicant shall submit a cost estimate for closure costs in accordance with §328.71 of this title (relating to Closure Cost Estimate for Financial Assurance).(E) Site operating plan. The Site Operating Plan shall include information to provide specific guidance and instructions for the management and operation of a scrap tire storage site and should include:(i) information on security, facility access control, the hours and days during which tire-hauling vehicles will be admitted, traffic control and safety;(ii) sequence of the development of the scrap tire storage site such as utilization of storage areas, drainage features, firewater storage ponds, trenches, and buildings;(iii) information on control of loading and unloading of used or scrap tires or tire pieces within designated areas, so as to minimize operational problems at the storage facility;(iv) fire prevention and control plans, and special training requirements for fire-fighting personnel that may be called for assistance;(v) vector control procedures for any type of vector that may be found at the scrap tire storage site;(vi) a procedure for removal of any waste material that is not a used or scrap tire or tire piece to a disposal facility permitted by the commission. This procedure must include the means to remove this illegally deposited waste material. In all cases, such waste shall be removed from the storage area immediately and placed in suitable collection bins, or shall be returned to the transporter's vehicle and removed from the scrap tire storage site. Collection bins must be emptied at least weekly, depending on the amount and type of unauthorized waste. The equipment necessary to meet this objective shall be specified in the design requirements and shall be on site and operable during operating hours;(vii) the name of the facility employee who is designated by the owner or operator to inspect each load of used or scrap tires or tire pieces that is delivered to the scrap tire storage site. The employee shall have the authority and responsibility to reject unauthorized or improperly manifested loads. The employee shall also be authorized to have unauthorized materials removed by the transporter, assess appropriate disposal fees, and have any unauthorized material removed by on-site personnel;(viii) a procedure whereby the required transporter manifest, the daily log and other required documents shall be maintained at the scrap tire storage site for a period of three years and be made available for inspection by the executive director or authorized agents or employees of local governments having jurisdiction to inspect the storage facility;(ix) dust and mud control measures for access roads, fire lanes, and storage areas within the scrap tire storage site;(x) posting of signs and enforcement of scrap tire storage site rules;(xi) procedures for wet-weather operations;(xii) preventive maintenance procedures for all storage areas, tire processing equipment, fire lanes, fire control devices, drainage facilities, access roads, buildings, and other structures on the scrap tire storage site in use during the active operating period of the scrap tire storage site. A schedule shall be established for periodic inspection of all equipment and facilities to determine if unsatisfactory conditions exist; and(xiii) incorporation of other instructions as necessary to ensure that the scrap tire storage site personnel comply with all of the operational standards for the facility.(11) The applicant seeking registration or amended registration for a scrap tire storage site shall submit evidence of financial responsibility in conformance with §328.71 of this title.(c) Application processing. If an application for registration or amended registration of a scrap tire storage site is received that is not administratively or technically complete, the executive director shall notify the applicant of the deficiencies within 30 working days. If the additional information is not received within 60 days of the date of receipt of the deficiency notice, the executive director may return the incomplete application to the applicant. The executive director may extend the response time to a maximum of 270 days upon sufficient proof from the applicant within 60 days of the receipt of the deficiency note that an adequate response cannot be submitted within 60 days. If, however, the applicant does not submit an administratively and technically complete application or sufficient proof of inability within the time frames indicated, the application may be considered withdrawn without prejudice.(d) Registration expiration. A scrap tire storage site registration shall expire 60 months from the date of issuance. A scrap tire storage site registration is transferable contingent upon executive director approval. A change in the federal tax identification number will constitute a change of ownership. Registrations shall be renewed prior to the expiration date. Applications for renewal shall be submitted at least 60 days prior to the expiration date of the scrap tire storage site registration. Failure to timely file an application for renewal shall result in automatic expiration of the registration.</content><note type="source"><p>Source Note: The provisions of this §328.60 adopted to be effective September 5, 1999, 24 TexReg 6761; amended to be effective October 7, 2010, 35 TexReg 8965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.61"><num value="328.61">§328.61</num><heading>Design Requirements for Scrap Tire Storage Site</heading><content>(a) A scrap tire storage site shall be designed so that the health, welfare and safety of operators, transporters, and others who may utilize the site are maintained.(b) A registered scrap tire storage site may store scrap tires or tire pieces using outdoor or indoor tire piles or enclosed and lockable containers, or a combination of any of the aforementioned methods. Registered scrap tire storage sites shall be limited to a maximum of three piles of whole used or scrap tires on the ground.(1) Tire piles consisting of scrap tires or tire pieces shall be no greater than 15 feet in height, nor shall the pile cover an area greater than 8,000 square feet. Existing storage sites with variances to the 8,000 square foot pile size limit may maintain the approved pile size if approved in writing by the local fire marshal in the fire plan under the current registration. Approval from the executive director and the local fire marshal will be required to maintain existing pile sizes greater than 8,000 square feet with renewal or amended application requests.(2) Scrap tires or tire pieces may be stored in any enclosed building or other type of covered enclosure. Where applicable, local fire prevention codes must be met and appropriate precautions taken. Indoor storage piles or bins shall not exceed 12,000 cubic feet with a 10-foot aisle space between piles or bins.(3) Scrap tires or tire pieces may be stored in trailers provided the trailer is totally enclosed and lockable.(c) There shall be a minimum separation of 40 feet between outdoor piles consisting of scrap tires or tire pieces. This 40-foot space shall be designated as a fire lane that totally encircles the tire piles and shall be an all-weather road. Provisions shall be made for all-weather access from publicly- owned roadways to the scrap tire storage site, and from the entrance of the site to unloading and storage areas used during wet weather. The design (a cross-section), location, maintenance, and all- weather serviceability of interior access roads/fire lanes shall be addressed in the overall facility design and in the Site Operating Plan, and shall be indicated on the Site Layout Plan with appropriate design notes. At a minimum, these roadways shall have minimum 25-foot turning radii, shall be capable of accommodating firefighting vehicles during wet weather, and shall meet applicable local requirements and specifications. An estimate shall be provided of the number, size, and maximum weight of vehicles expected to use the site daily. The open space between buildings and outdoor tire piles consisting of scrap tires or tire pieces shall be a minimum of 40 feet; kept open at all times and maintained free of rubbish, equipment, tires, or other materials. In the event that a variance for supersize piles is approved by the executive director, the minimum fire lane separation shall be at least 40 feet. Upon coordination with the local fire marshal, the distance may be increased, as necessary, to protect human health and safety. Storage sites registered before January 1, 1998 may maintain setbacks less than 40 feet under the current registration if approved in writing by the local fire marshal in the fire plan.(d) Outdoor piles consisting of scrap tires or tire pieces and entire buildings used to store scrap tires or tire pieces shall not be within 40 feet of the property line or easements of the scrap tire storage site. This setback line shall be kept open at all times and maintained free of rubbish, equipment, tires, or other materials. The executive director may grant a variance to the 40-foot property line or easement if the setback line meets the other applicable requirements of this subchapter and the applicant provides a written statement to the executive director from the local fire marshal that the distance that is the subject of the variance is adequate for fire fighting purposes. In the event that a variance for supersize piles is approved by the executive director, the minimum setback from property lines or easements will be 40 feet. Storage sites registered before January 1, 1998 may maintain setbacks less than 40 feet under the current registration if approved in writing by the local fire marshal in the fire plan.(e) Scrap tires shall be split, quartered, or shredded within 90 days from the date of delivery to the scrap tire storage site. The executive director may grant a variance from this requirement if the executive director finds that circumstances warrant the exception. Off-the-road tires that are used on heavy machinery, including earthmovers, loader/dozers, graders, agricultural machinery and mining equipment are exempt from this requirement. Truck tires shall not be classified as off-the-road tires and thus are not exempt from this requirement. Appropriate vector controls shall be used at a frequency based upon type and size of piles, weather conditions and other applicable local ordinances.(f) Access to the facility shall be controlled to prevent unauthorized activities. The facility shall be completely fenced with a gate that is locked when the facility is closed. A scrap tire storage site shall be enclosed by a chain-link type security fence at least six feet in height.(g) The scrap tire storage site shall have an adequate fire protection system using fire hydrants or a firewater storage pond or tank at the facility. The capacity of a firewater storage pond or tank shall be of sufficient size for firefighting purposes and shall be in conformance with all local and state fire code requirements.(h) The scrap tire storage site shall have large capacity dry chemical fire extinguishers located in strategically-placed enclosures throughout the entire site, equally spaced within the facility to provide quick access from any location within the facility. The minimum number of fire extinguishers or fire hydrants for each scrap tire storage site shall be one per acre.(i) If necessary, suitable drainage structures or features shall be provided to divert the flow of rainfall runoff or other uncontaminated surface water within the scrap tire storage site to a location off-site.(j) Each site shall conspicuously display at the entrance a sign at least 1 1/2 feet by 2 1/2 feet in size with clear, legible letters stating the name of the scrap tire storage site using the words "scrap tire site," the commission registration number, and operating hours.(k) A scrap tire storage site located within a designated 100-year floodplain area shall be designed with adequate environmental protection. The owner/operator shall demonstrate that the tire storage area will not restrict the flow of the 100-year flood, reduce temporary water storage capacity of the floodplain, or result in a washout of tires, tire pieces or other material so as to pose a hazard to human health and the environment.(l) The scrap tire storage site shall be designed in accordance with all local building codes, fire codes, and other applicable local codes.</content><note type="source"><p>Source Note: The provisions of this §328.61 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.62"><num value="328.62">§328.62</num><heading>Scrap Tire Storage Site Record Keeping</heading><content>(a) General requirements.(1) The owner/operator shall maintain on site at all times: a copy of the registration application with all supporting data, including the approved scrap tire storage site layout plan; the approved scrap tire storage site engineering information; a copy of the latest approved closure cost estimate and a copy of the current financial assurance mechanism, as filed with the commission; and a copy of the commission's current rules. The facility supervisor shall be knowledgeable of current commission rules; the contents of the approved scrap tire storage site application; and the approved scrap tire storage site in relation to the operational requirements.(2) All drawings or other sheets prepared for revisions to a scrap tire storage site layout plan or other previously approved documents, which may be required by this subchapter, shall be submitted in triplicate.(b) Daily log. Persons that store used or scrap tires or tire pieces under this subchapter shall maintain a record of each individual delivery and removal. The record shall be in the form of a daily log or other similar documentation approved by the executive director. The daily log shall include, at a minimum, the:(1) name and commission registration number of the scrap tire storage site;(2) physical address of the scrap tire storage site;(3) number of used or scrap tires or tire pieces received at the scrap tire storage site;(4) number of used or scrap tires or tire pieces, removed from the scrap tire storage site (for disposal, resale, recycling, reuse or energy recovery);(5) specific location in the scrap tire storage site (i.e., tire pile number, bin number, building number, etc.) where used or scrap tires or tire pieces are delivered or removed (for disposal, resale, recycling, reuse or energy recovery);(6) description of specific events or occurrences at the scrap tire storage site relating to routine maintenance, spraying for vectors, observations of vectors, evidence of vectors, and fire or theft or other similar events or occurrences;(7) number of used or scrap tires being held for resale, adjustments or other purposes;(8) name and signature of facility representative acknowledging truth and accuracy of the daily log; and(9) the name, address, telephone number, and date of the individual or company delivering or removing the used or scrap tires or tire pieces to or from the scrap tire storage site.(c) Manifests. The scrap tire storage site operator shall retain all manifests received from a scrap tire facility or scrap tire transporter for used or scrap tires or tire pieces delivered to or removed from the scrap tire storage site. The scrap tire storage site shall ensure that the top original of the five- part manifest is returned to the generator completely filled out within 60 days of the date and time of collection as indicated in Section 1 of the manifest form. The scrap tire storage site shall follow the requirements in §328.58 of this title (relating to Manifest System).(d) Annual report. Scrap tire storage site owners or operators shall report their recycling, reuse, and energy recovery activities to the executive director. The annual report shall be prepared on a form provided by the executive director, and at a minimum the following information shall be required in the report:(1) the name, physical address, mailing address, county and telephone number of the scrap tire storage site;(2) the name, physical address, mailing address, county and telephone number of partners, corporate officers, and directors;(3) a list of facilities where the scrap tire storage site owners or operators currently deliver used or scrap tires or tire pieces. Each scrap tire recycling or energy recovery facility listed shall include the following information:(A) phone number of company and responsible person;(B) physical address and mailing address of the scrap tire facility;(C) detailed description of process to recycle, reuse or recover the energy from the used or scrap tires or tire pieces;(D) exact quantities, by month, (in number of tires or weight of scrap tires or tire pieces) that the scrap tire storage site owner or operator delivered to the scrap tire facility.(e) Local ordinances. Where local ordinances require controls or records more stringent than the requirements of this subchapter, the scrap tire storage site owner or operator shall use those criteria to satisfy the agency's requirements.</content><note type="source"><p>Source Note: The provisions of this §328.62 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.63"><num value="328.63">§328.63</num><heading>Scrap Tire Facility Requirements</heading><content>(a) Applicability. This section applies to owners or operators of facilities that process, conduct energy recovery or recycle used or scrap tires or tire pieces.(b) Storage site registration requirement. The applicant shall obtain a scrap tire storage site registration in accordance with §328.60 of this title (relating to Scrap Tire Storage Site Registration) if the applicant seeking registration for a scrap tire facility:(1) intends to have more than a 30 calendar day supply of tires at the facility site; or(2) is solely a scrap tire processing facility with no recycling or energy recovery conducted on-site and intends to store in excess of 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in trailers.(c) Scrap tire facility registration requirements. Scrap tire facilities shall register their operation with the executive director in accordance with §328.55 of this title (relating to Registration Requirements) before starting operations. An application for registration shall be made on a form provided by the executive director upon request. In addition to the General Registration requirements, the following registration information must be provided to the executive director.(1) Persons that process, conduct energy recovery or recycle used or scrap tires or tire pieces shall submit an application for a registration number from the executive director for the operation of the scrap tire facility.(2) The application for registration shall be prepared and signed by the applicant. The application shall identify the use of the tires (e.g., the product to be made and the end use market), and shall include information necessary for the executive director to make an evaluation of the proposed operation.(3) The application for registration of a scrap tire facility shall be submitted in triplicate either in writing or through an electronic reporting system as allowed by the executive director.(4) Data presented in support of an initial or renewal application for a scrap tire facility shall consist of the following information:(A) an application form provided by the executive director and location map(s) pursuant to §328.60 of this title;(B) the maximum amount of tires (in pounds) that will be on the scrap tire facility at any given time;(C) the amount of tires necessary to provide a 30 calendar day raw material supply for the proposed recycling process;(D) the storage method (piles on the ground, piles inside a building or enclosure, or totally enclosed and lockable containers that are locked during non-operational hours);(E) the product to be manufactured and the end use market;(F) a property owner affidavit on a form provided by the executive director pursuant to §328.60 of this title; and(G) a list of all other applicable federal, state, and local permits and/or registrations with the associated numbers;(5) Persons that conduct energy recovery shall obtain all other applicable authorizations (i.e., permits and/or registrations) necessary for conducting tire related activities before submitting an application for registration as a scrap tire facility.(d) General requirements.(1) The owner or operator shall mail a copy of the notification documents and attachments to the appropriate mayor and county judge if the proposed project is to be located within the corporate limits or extraterritorial jurisdiction of a city; or the appropriate county judge if the proposed project is to be located within an unincorporated area of a county; to the appropriate regional council of government; and, to the appropriate local fire authority. Proof of mailing shall be provided in the form of return receipts for registered mail.(2) Where local ordinances require controls and records more stringent than the requirements of this subchapter, scrap tire facility operators shall use those criteria to satisfy commission requirements under this section. Prior to authorizing a scrap tire facility, the executive director shall consider any timely written notification by a local government with jurisdiction over a proposed facility that is provided to the executive director that the proposed facility does not comply with local requirements related to managing scrap tires and protecting public health and the environment. Such notice shall include adequate documentation of noncompliance at the proposed facility. The executive director shall determine whether any documentation of noncompliance submitted is adequate. The executive director shall disregard a notice of noncompliance if a court with jurisdiction over a local government's decision determines that an application complies with local requirements. Local governments shall be allowed 45 days after an applicant mails notice to mail its reply to the executive director.(3) Stockpiles of used or scrap tires or tire pieces at the processing location that are awaiting splitting, quartering, shredding, processing, or recycling shall be monitored for vector control and appropriate vector control measures shall be applied when needed, but in no event less than once every two weeks.(4) If a scrap tire facility does not intend to provide its own fire fighting personnel or system, the facility shall make arrangements with public or private emergency response personnel that are capable of complying with applicable fire and building codes. Prior to authorizing a scrap tire facility, the executive director shall consider any timely written notification by a local fire authority with jurisdiction over a proposed facility that is provided to the executive director that the proposed facility does not comply with local requirements relating to fire protection. Such notice shall include adequate documentation of the noncompliance at the proposed facility. The executive director shall determine whether any documentation of noncompliance submitted is adequate. The executive director shall disregard such notice if a court with jurisdiction over a local fire authority's decision determines that an application complies with local requirements. Local fire authority officials shall be allowed 45 days after an applicant mails notice to mail its reply to the executive director.(5) The owner or operator of the scrap tire facility shall operate the vehicles and equipment to prevent nuisances or disturbances to adjacent landowners.(6) A scrap tire facility operator shall submit to the executive director an annual summary of facility activities from January 1 through December 31 of each calendar year, showing the number and type of scrap tires received, amount by weight of tires shredded, processed, burned for energy recovery or recycled, and the amount by weight of tire pieces removed from the facility. If the tire pieces were delivered to an end user, the annual report shall include the name of the end user, type of end user and the date of delivery to the end user. The annual report shall be submitted no later than March 1 of the year following the end of the reporting period. The report shall be prepared on a form provided by the executive director.(7) The term "local government" as used in this section is defined in Texas Health and Safety Code, §361.003(17).</content><note type="source"><p>Source Note: The provisions of this §328.63 adopted to be effective September 5, 1999, 24 TexReg 6761; amended to be effective October 7, 2010, 35 TexReg 8965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.64"><num value="328.64">§328.64</num><heading>Requirements for a Scrap Tire Transportation Facility</heading><content>Any person storing tires for periods longer than 30 calendar days at transportation facilities such as marine terminals, rail yards or trucking facilities, shall register the facility with the executive director on a form provided by the executive director and comply with all applicable requirements in §328.55 of this title (relating to Registration Requirements).</content><note type="source"><p>Source Note: The provisions of this §328.64 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.65"><num value="328.65">§328.65</num><heading>Tire Monofill Permit Required</heading><content>(a) In accordance with §330.4(a) of this title (relating to Permit Required), no person may cause, suffer, allow, or permit the underground disposal or placement of tires or tire pieces into a tire monofill unless that activity is authorized by a permit from the commission. No person may begin physical construction of a tire monofill without first having submitted a permit application in accordance with §§330.50-330.65 of this title (relating to Permit Procedures) and received a permit from the commission.(b) A separate permit is not required for the underground disposal or placement of tires or tire pieces into a tire monofill if the underground disposal or placement occurs within the permit boundary at a permitted municipal solid waste landfill site. Such disposal or placement shall be conducted only as authorized by the approved site development plan, or by a permit modification or amendment, as appropriate.</content><note type="source"><p>Source Note: The provisions of this §328.65 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.66"><num value="328.66">§328.66</num><heading>Land Reclamation Projects Using Tires (LRPUT)</heading><content>(a) Any person or entity intending to initiate a Land Reclamation Projects Using Tires (LRPUT) shall notify the executive director in writing of the intent to fill land by means of a LRPUT. The application shall be submitted in triplicate either in writing or through an electronic reporting system as allowed by the executive director. Owners/operators of LRPUTs are required to provide information to the executive director as part of the notification document as described in this subsection. Approval in writing by the executive director (authorization to proceed) is required before the reclamation project may be initiated. The executive director may withhold authorization to proceed if the information submitted is not deemed to be complete. The executive director shall have 60 days to review the notification documents for completeness. The executive director may request additional information if the executive director determines that the notification submittal does not address all applicable requirements of this subchapter or any potential risks to public health or the environment. The following information shall be submitted in the notification document or attachments thereto.(1) The owner/operator of the LRPUT shall disclose in the notification the location of the project on a state highway map, United States Geological Survey map or similar, and provide a legal description of the property. The general location on the site where fill activities will take place shall be shown on one or more of these maps;(2) A property owner's affidavit shall be submitted at the time of notification of intent to initiate a LRPUT and shall include the following:(A) legal description of the property on which the LRPUT will occur; and(B) acknowledgment that the owner has a responsibility to file with the county deed records an affidavit to the public advising that a reclamation project utilizing tire pieces exists on the site, and providing details about the location of the filled area within the property boundaries, areal extent of the fill project, coordinates or survey data, and the approximate volume or weight of tires which were used as fill, at such time as the fill project has been completed;(3) The approximate volume of tire pieces proposed to be placed below ground, or the equivalent number of whole tires, and the approximate size and depth of the depression or borrow area to be filled shall be disclosed in the notification document;(4) The approximate period of time during which the project will be conducted shall be disclosed, with estimated start and finish dates;(5) The method of placement and commingling of the tire shreds to achieve a mix of tire pieces with the inert fill material in a proportion no greater than 50% of tire material by volume.(6) A demonstration of the seasonal high groundwater level in the area. The executive director may require that an additional demonstration be provided for the seasonal high groundwater level at the proposed site based on the demonstration provided for the area. If the executive director requires an additional demonstration of the seasonal high groundwater level at the proposed site, the applicant shall provide the requested information within the time frame specified by the executive director.(7) A statement signed and sealed by a professional engineer licensed to practice in Texas shall be submitted in the notification to the executive director to certify that the LRPUT is designed in a manner that will comply with the following standards.(A) The LRPUT shall not cause a discharge of solid waste or pollutants adjacent to or into the waters of the state, including ground water, that is in violation of the requirements of the Texas Water Code, §26.121;(B) The LRPUT shall not adversely affect human health, public safety or the environment, either during fill operations or after the reclamation project is complete; and(C) Tire or tire pieces shall not be placed below ground in a manner that constitutes disposal as defined in Texas Health and Safety Code §361.003(7);(8) An affidavit signed by the property owner shall be submitted certifying that:(A) the borrow area, hole or disturbed land area existed before the project; was excavated for another purpose; and was not excavated for the burial of tire pieces;(B) the LRPUT will be completed in a manner that will comply with all regulations set forth in this subchapter and any other rules of the commission or any other local, state or federal agency which apply; and(C) the local fire marshal has been notified of the tire placement or fill activity.(9) An affidavit signed by the operator shall be submitted certifying that he or she is familiar with the application and all supporting data; is aware of all commitments represented in the notification; is familiar with all pertinent requirements in these regulations; and agrees to develop and operate the project in accordance with the application, applicable local and state regulations, and any special provisions that may be imposed by the executive director.(10) The owner or operator shall mail a copy of the notification documents and attachments to the appropriate mayor and county judge if the proposed project is to be located within the corporate limits or extraterritorial jurisdiction of a city; or the appropriate county judge if the proposed project is to be located within an unincorporated area of a county; to the appropriate groundwater district; and to the appropriate regional council of government. Proof of mailing shall be provided in the form of return receipts for registered mail. Prior to authorizing a LRPUT, the executive director shall consider any timely written notice by a local government with jurisdiction over a proposed facility that is provided to the executive director that the proposed facility does not comply with local requirements related to managing scrap tires and protecting public health and the environment. Local governments' notice of noncompliance shall include adequate documentation of noncompliance at the proposed facility. The executive director shall determine whether any documentation of noncompliance submitted is adequate. The executive director shall disregard such notice if a court with jurisdiction over a local government's decision determines that an application complies with local requirements. Local governments shall be allowed 45 days after an applicant mails notice to mail its reply to the executive director.(11) Upon the filing of the notification documents, the facility owner or operator shall provide notice to the general public by means of a notice by publication and a notice by mail. Each notice shall specify both the name, affiliation, address, and telephone number of the applicant and of the commission employee who may be reached to obtain more information about the LRPUT project. The notices shall specify that the notification documents have been provided to the county judge and that they are available for review by interested parties. The applicant shall publish notice in the county in which the facility is located. The notice shall be published once a week for three weeks. The applicant should attempt to obtain publication in a Sunday edition of a newspaper. The notice by certified mail, return receipt requested, shall be sent to all adjacent landowners and all owners of property within 500 feet of the boundary of the project; the health authorities of the city and county in which the project will be located, if applicable; and the appropriate state senator and representative for the area encompassing the project.(b) Undisturbed land shall not be excavated for the purpose of filling the same land with a mixture of tires and debris or soil. Any borrow area, hole or other disturbed land area to be used for a LRPUT must have existed before the project, and it must have been excavated or soil removed for a purpose other than for the burial of tire pieces.(c) The LRPUT shall not result in a public nuisance.(d) An applicant for a LRPUT shall notify the local fire authority serving the area of the proposed tire placement or fill activity. If an owner or operator of a LRPUT does not intend to provide its own fire fighting personnel or system, the owner or operator shall make arrangements with public or private emergency response personnel that are capable of complying with applicable fire and building codes. Prior to authorizing a LRPUT, the executive director shall consider any timely written notification by a local fire authority with jurisdiction over a proposed facility that is provided to the executive director that the proposed facility does not comply with local requirements relating to fire protection. Such notice shall include adequate documentation of the noncompliance at the proposed facility. The executive director shall determine whether any documentation of noncompliance submitted is adequate. The executive director shall disregard such notice if a court with jurisdiction over a local fire authority's decision determines that an application complies with local requirements. Local fire authority officials shall be allowed 45 days after an applicant mails notice to mail its reply to the executive director. Applicants must provide proof that the mailed notice was received by the fire authority.(e) All tires used to fill land shall be split, quartered, or shredded. Whole tires shall not be placed below ground.(f) The owner and operator of the LRPUT shall comply with all applicable local ordinances, including any public safety, or zoning and land use laws.(g) Shredded, split or quartered tires placed below ground shall be mixed in a proportion no greater than approximately 50% by volume with inert material acceptable for filling land. If greater than 50% of tire pieces by volume are placed below ground, the site is considered a tire monofill and is subject to §328.65 of this title (relating to Tire Monofill Permit Required).(h) Tire pieces shall be placed no closer than 18 inches to the final grade or ground surface. A soil cover unadulterated with tire pieces shall make up at least the upper 18 inches of the reclamation project.(i) The owner or operator of the LRPUT shall register as a scrap tire facility if a shredding operation is conducted on site for processing tires.(j) The owner or operator of the LRPUT shall register as a scrap tire storage site under §328.60 of this title (relating to Scrap Tire Storage Site Registration) if:(1) operations requiring storage of more than 500 used or scrap tires (or weight equivalent tire pieces or any combination thereof) on the ground or more than 2,000 used or scrap tires (or weight equivalent tire pieces or any combination thereof) in enclosed and lockable containers would qualify the site as a registered tire storage site under §328.60 of this title; and(2) the construction of the LRPUT extends beyond 90 days from the date of delivery of tires or tire pieces to the site.(k) The executive director shall issue an identifying number at the time the approval letter for the LRPUT is issued. This identifying number shall be referenced in any correspondence relating to a particular LRPUT for which such a number is issued.(l) A person may provide the commission with written comments on any notification of a LRPUT project. The executive director shall review any written comments when they are received within 30 days of mailing the notice. The written information received will be utilized by the executive director in determining what action to take on the application for a LRPUT.(m) Following completion of all fill activities for the LRPUT, the owner or operator shall submit to the executive director, for review and approval, a documented certification signed by a licensed professional engineer verifying that the project has been completed in accordance with this subchapter, the notification documents, and all attachments. Once approved, this certification shall be placed in the file.(n) The term "local government" as used in this section is defined in Texas Health and Safety Code, §361.003(17).</content><note type="source"><p>Source Note: The provisions of this §328.66 adopted to be effective September 5, 1999, 24 TexReg 6761; amended to be effective October 7, 2010, 35 TexReg 8965; amended to be effective July 14, 2011, 36 TexReg 4415.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.69"><num value="328.69">§328.69</num><heading>Public Notice of Intent to Operate</heading><content>(a) Scrap tire storage sites that are registered with the executive director shall publish notice in the county where they intend to store used or scrap tires or tire pieces before beginning operation. Notice shall be published in a newspaper of general circulation. Subject to executive director approval, a variance to the public notice requirement may be requested provided that similar notice has been published within the previous 12-month period and that the notice was associated with activities under the jurisdiction of this subchapter.(b) Scrap tire facilities that are registered with the executive director and have submitted an application amendment to request a variance from the 8,000 square feet pile size shall publish notice of intent to increase the pile size in accordance with this section.(c) The notice of intent published by the scrap tire storage site owner shall contain at a minimum the following information:(1) the facility registration number;(2) the name under which the facility registration number was issued;(3) the permanent street address and telephone number of the facility;(4) a brief statement explaining the utilization activities the facility intends to perform at the location;(5) where the tires intended for utilization or already utilized will be stored, if different from the actual facility site; and(6) the number of tire piles planned for the storage facility and the square footage of the largest pile planned.(d) The public notice of intent to operate shall identify the Texas Commission on Environmental Quality as the state agency regulating this activity.(e) The public notice of intent shall be published at least 30 days before beginning activities. The public notice of intent shall be published for a period of 10 days continuously. In counties where no daily newspaper is published, the notice shall be published at least once each week for three consecutive weeks.</content><note type="source"><p>Source Note: The provisions of this §328.69 adopted to be effective September 5, 1999, 24 TexReg 6761; amended to be effective October 7, 2010, 35 TexReg 8965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.70"><num value="328.70">§328.70</num><heading>Motion to Overturn</heading><content>A person affected by a registration or Land Reclamation Projects Using Tires under this chapter may file a Motion to Overturn pursuant to §50.139 of this title (relating to Motion to Overturn Executive Director's Decision), notwithstanding §50.131 of this title (relating to Purpose and Applicability).</content><note type="source"><p>Source Note: The provisions of this §328.70 adopted to be effective September 5, 1999, 24 TexReg 6761; amended to be effective October 7, 2010, 35 TexReg 8965.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scF/s328.71"><num value="328.71">§328.71</num><heading>Closure Cost Estimate for Financial Assurance</heading><content>(a) As part of a facility's registration application, an owner or operator of a scrap tire storage site must prepare a written estimate, certified by a professional engineer, in current dollars, of the cost of hiring a third party to close the facility(ies). The closure cost for scrap tire storage sites is determined by the sum of paragraphs (1) and (2) of this subsection:(1) The estimated cost for a third party to transport and dispose of the maximum site capacity of used or scrap tires and tire pieces as depicted by the site layout plan. The estimate shall include equipment and operator time for loading tires and disposal costs.(2) The estimated cost for a third party to complete cleanup of the site of any and all debris, as well as dismantling any equipment used in the processing of whole tires into shreds or used to recycle whole tires or shredded tires into manufactured products, securing the site, and preventing access to the equipment or removing it from the site to a location acceptable to the executive director; or the amount of $3,000, whichever is greater.(b) The closure cost estimate must equal the cost of closing the facility based on the maximum number of whole tires stored at the facility, the maximum volume of tire pieces, and disabling any equipment as disclosed in the facility's registration application. The executive director shall evaluate and determine the amount for which evidence of financial assurance is required. The closure cost estimate provided by the owner or operator may be amended by the executive director. In some cases, the closure cost estimate may not be sufficient which means that the owner or operator remains responsible for the entire costs to close the site.(c) Any amendment application shall include a recalculation of the closure cost estimate based on any requested volume increases. Facilities shall not increase the volume of whole tires or tire pieces generated from out of state and stored at the facility until the registration amendment has been approved by the executive director. Only upon approval of the executive director will the amended registration closure cost estimate be the basis for determining the amount of financial assurance required.(d) The quantities of scrap tires reported on the registration application form and used in the calculation of financial assurance shall be obtained from the site layout plan volumes by using the following conversion factors:(1) a typical whole tire shall be considered to occupy four cubic feet unless an exact count of all whole tires is to be maintained by an operator and shall be considered to weigh 20 pounds; and(2) a cubic yard of tire shreds or pieces shall be considered to weigh no more than 950 pounds; however, other verifiable data may be used if accepted and approved by the executive director.(e) The calculated capacity of a site as calculated for closure may not be exceeded without the submission and approval of an amended registration application specifically including, but not limited to, new site layout plans to substantiate the revised capacity and new closure calculations based upon the depicted volumetric capacity converted to weights, posting of the revised financial assurance and written approval for the amended registration. The owner or operator is also responsible for submitting a registration amendment to revise the closure cost estimate whenever requested to do so by the executive director. Registration amendments with revised closure cost estimates shall be submitted to the executive director within 15 days of the executive director's written request to revise the closure cost estimate.(f) The owner or operator must keep at the facility during the operating life of the facility a copy of the latest approved closure cost estimate and a copy of the current financial assurance mechanism.(g) Financial assurance required under this section shall be provided in accordance with Chapter 37, Subchapter M of this title (relating to Financial Assurance Requirements for Scrap Tire Sites).(h) Closure will begin when:(1) the executive director deems the facility abandoned; or(2) the registration expires, is terminated, or revoked or a new or renewal registration is denied; or(3) closure is ordered by the Texas Commission on Environmental Quality or a United States District Court or other court of competent jurisdiction.(i) Following a determination that the owner or operator has failed to perform closure in accordance with the registration requirements when required to do so or when closure begins under the circumstances outlined in subsection (h) of this section, the executive director may terminate or revoke the registration and draw on the financial assurance funds.</content><note type="source"><p>Source Note: The provisions of this §328.71 adopted to be effective September 5, 1999, 24 TexReg 6761; amended to be effective March 29, 2001, 26 TexReg 2405; amended to be effective October 7, 2010, 35 TexReg 8965.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c328/scG"><num value="G">SUBCHAPTER G</num><heading>NEWSPRINT RECYCLING</heading><section identifier="/us/state/tx/tac/t30/p1/c328/scG/s328.100"><num value="328.100">§328.100</num><heading>Purpose and Definitions</heading><content>(a) Purpose. These sections set forth newsprint recycling requirements for newsprint manufacturers and newspaper publishers. The sections contain recordkeeping and reporting procedures with respect to the utilization of recycled-content newsprint in newspaper publishing operations. These sections are applicable to every newspaper printing and publishing operation in this state that publishes, sells, or distributes newspapers, as well as to those manufacturers and suppliers who provide newsprint for sale in Texas.(b) Definitions. The following words, terms and abbreviations, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise.(1) Aggregate postconsumer recycled content--refers to the total amount of postconsumer recovered material by weight contained in total purchases of newsprint for a specified period. It is arrived at by multiplying the percentage of postconsumer recovered fiber in each shipment of newsprint purchased by the percentage of total newsprint purchases that shipment represents and summing the products thus calculated for all shipments received during the specified time period.(2) De-inked fiber--A fiber which has undergone the de-inking process.(3) De-inking process--A process by which most of the ink, filler, coating, and other extraneous (non-cellulose) material is removed from printed or unprinted paper.(4) Metric ton--1,000 kilograms. To convert pounds to metric tons the number of pounds should be divided by 2,204.6.(5) Newspaper--A publication that is printed on newsprint and published, sold, and distributed in the state, both daily and non-daily, to disseminate current news and information of general interest to the public.(6) Newspaper publisher--An individual or corporate group of newspaper publishers which uses newsprint in a newspaper publishing operation.(7) Newsprint--Paper used for the printing of newspapers.(8) Newsprint manufacturer--A business which makes newsprint.(9) Overs--also known as "overruns," are newspapers printed for sale to distributors or the public which remain unsold. Overs include inserts such as magazines and advertising supplements.(10) Postconsumer recovered material--Includes paper, paperboard, and other fibrous products that have completed their normal cycle of production and use, but excludes all papermaking waste and blank white news, which is diverted for recycling prior to printing. Postconsumer recovered material may also include any de-inked fiber, regardless of the source of such fiber except from sources specifically excluded previously. Overs are included within the definition of postconsumer recovered material.(11) Postconsumer recycled content--That portion of manufactured newsprint that is comprised of postconsumer recovered material, usually expressed as a percentage of the total content.(12) Recycled newsprint--Any newsprint certified by the manufacturer or supplier as containing at least 25% postconsumer recovered material, by fiber weight.(13) Virgin newsprint--Newsprint which contains 100% new materials in its formation.</content><note type="source"><p>Source Note: The provisions of this §328.100 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scG/s328.101"><num value="328.101">§328.101</num><heading>General Guidelines and Requirements</heading><content>(a) Target recycling percentages. In order to bring about a significant state-wide increase in newsprint recycling, newspaper publishers are encouraged to take whatever measures may be necessary to ensure that their publishing businesses meet or exceed the target recycling percentages set forth in paragraph (1) of this subsection. In the event a newspaper publisher chooses to purchase newsprint with less than 25% postconsumer recycled content, the agency will consider legislative intent to be achieved if that publisher meets or exceeds the alternative aggregate recycling content standards set forth in paragraph (2) of this subsection.(1) Newspaper publishers should obtain and utilize newsprint such that the percentage of "recycled newsprint," as defined in §328.100 of this title (relating to Purpose and Definitions), in the overall total amount of newsprint purchased each year is at least:(A) 10% by the end of calendar year 1993;(B) 20% by the end of calendar year 1997; and(C) 30% by the end of calendar year 2000.(2) In the alternative, newspaper publishers may obtain and utilize newsprint such that the aggregate postconsumer recycled content, by fiber weight, in the overall total amount of newsprint purchased each year is at least:(A) 2.5% by the end of calendar year 1993;(B) 12% by the end of calendar year 1997; and(C) 18% by the end of calendar year 2000.(b) Certification. Newsprint manufacturers and suppliers shall certify the average percentage, based on annual production, of postconsumer recovered material contained in any newsprint sold and/or delivered to Texas newspaper publishers.(c) Recordkeeping. Newsprint purchase and delivery records shall be maintained by all newspaper publishers. In addition, mill certification records showing the average percentage of postconsumer recovered material in purchased and/or utilized newsprint should be kept by each publisher. Such records must contain sufficient information to enable the publisher to prepare those reports required under §328.103 of this title (relating to Reports). An official Texas Daily Newspaper Association (TDNA) Newsprint Order Form may be used to maintain and verify required records. Newspaper publishers shall retain required records for three years.(d) Notice of postconsumer content and labeling.(1) Newsprint manufacturers or suppliers shall indicate, on invoices provided to newspaper publishers, suppliers, or commercial printers, or through another form of written notice to such consumers, the average postconsumer recycled content of each roll of newsprint which is the subject of such invoice or notice, and the amount of newsprint purchased from such newsprint manufacturer or supplier containing the minimum postconsumer recycled content required to meet the definition of "recycled newsprint" under §328.100 of this title (relating to Purpose and Definitions).(2) Newsprint which contains less than the minimum percentage of postconsumer recovered material required to qualify it as recycled newsprint may be identified as follows: "this product contains an average of ____% postconsumer recycled fiber, based on annual production" with the percentage indicated.(e) Comparable price, quality, and availability. Texas newspaper publishers are urged to voluntarily increase utilization of "recycled newsprint" or other newsprint, that has been certified as containing postconsumer recovered material, beyond the target recycling percentages set forth in subsection (a) of this section in those instances where:(1) availability of such products exist;(2) the net cost of utilizing such products is comparable to that of utilizing virgin newsprint; and(3) the quality of such products (considering such factors as brightness, opacity, and cross machine tear strength) is similar to that of virgin newsprint.</content><note type="source"><p>Source Note: The provisions of this §328.101 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scG/s328.102"><num value="328.102">§328.102</num><heading>Requirements</heading><content>The agency shall assure easy access of information among all parties affected by these sections and shall establish a data filing system that will allow all parties to easily monitor the progress of the recycling program set forth in these sections. Specifically, the agency shall:(1) maintain up-to-date listings of, and data from, municipalities, towns, local organizations, and other generators of recyclable paper and newsprint, concerning both present and planned newsprint recycling and collection activities and the overall availability of such recyclable material within the state;(2) provide, to recyclers of old newspapers and other recyclable paper materials, acceptability requirements and specifications with respect to materials destined for de-inking plants and recycled paper mills;(3) maintain a roster of current newspaper publishers, wastepaper dealers, commercial printers, as well as paper and paperboard mills who buy, sell, recover or consume wastepaper in Texas and in other states;(4) in cooperation with various state agencies and officials, publishers, and other parties, assist in the development of those education strategies and market development programs described in §361.423 of the Health and Safety Code, which are designed to promote newsprint recycling; and(5) work closely with Texas Daily Newspaper Association, the Texas Press Association, manufacturers of newsprint containing postconsumer recovered material, and citizen groups concerned with recycling, to monitor problems and issues regarding newsprint quality and the availability of "recycled newsprint."</content><note type="source"><p>Source Note: The provisions of this §328.102 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scG/s328.103"><num value="328.103">§328.103</num><heading>Reports</heading><content>(a) Preprinted reports. Newspaper publishers may use standard forms, to be provided by the commission, to submit annual reports required by this section, concerning the publishers' use of recycled newsprint.(b) Due date. Texas newspaper publishers shall be responsible for returning a completed report to the commission on or before January 31 of each year for the immediately preceding calendar year.(c) Report content. The report shall contain the following information:(1) name, mailing address, physical address, and telephone number of the newspaper manufacturer or supplier or corporate media group from which newsprint purchases were made during the preceding calendar year;(2) the total amount of newsprint purchased during the calendar year (in metric tons);(3) the total amount of "recycled newsprint," as defined in §328.100 of this title (relating to Purpose and Definitions), purchased during the calendar year (in metric tons);(4) the percentage, of the total newsprint purchased during the calendar year, which in accordance with §328.100 qualified as "recycled newsprint;"(5) if the reporting party chooses to comply with the alternative target recycling percentages in §328.101 (relating to General Guidelines and Requirements), the percentage reflecting the aggregate postconsumer recycled content of the total amount of newsprint purchased during the calendar year; and(6) in the event the publisher fails during the preceding year to meet the voluntary requirements set forth in §328.101 of this title (relating to General Guidelines and Requirements), the publisher shall indicate the following:(A) whether or not the publisher was able to obtain sufficient quantities of "recycled newsprint,"or other newsprint containing certified minimum percentages of postconsumer recovered material, on a timely basis, at roughly the same net cost, and having satisfactory quality;(B) whether or not the publisher attempted to obtain "recycled newsprint," or other newsprint containing certified minimum percentages of postconsumer recovered material, from every manufacturer or supplier that offered to sell such newsprint to the publisher; and(C) such publisher's specific efforts to obtain "recycled newsprint," including the name and address of each producer of newsprint that the publisher contacted, as well as the name and telephone number of the contact person representing each of those producers.(7) Annual reports shall be submitted to the agency address identified on the annual report.</content><note type="source"><p>Source Note: The provisions of this §328.103 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scG/s328.104"><num value="328.104">§328.104</num><heading>Joint Review</heading><content>The agency shall schedule periodic meetings with representatives from the newsprint manufacturing and newspaper publishing industries to evaluate the effectiveness of the requirements set forth in these sections, to compare the newspaper recycling progress in Texas with that in other states, and to consider whether revisions to these sections may be warranted.</content><note type="source"><p>Source Note: The provisions of this §328.104 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scG/s328.105"><num value="328.105">§328.105</num><heading>Enforcement</heading><content>If the agency finds that, on a state-wide basis, voluntary actions alone on the part of newsprint manufacturers, newsprint suppliers, and newspaper publishers fail to achieve the target recycling percentages set forth in §328.101 of this title (relating to General Guidelines and Requirements), the commission may, after considering all relevant factors, including but not limited to function, availability and cost, adopt mandatory enforcement measures designed to further increase the amount of newsprint recycling in the state and to ensure that the state-wide goals are achieved.</content><note type="source"><p>Source Note: The provisions of this §328.105 adopted to be effective September 5, 1999, 24 TexReg 6761.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c328/scH"><num value="H">SUBCHAPTER H</num><heading>SYMBOLS FOR CERTAIN PLASTIC CONTAINERS</heading><section identifier="/us/state/tx/tac/t30/p1/c328/scH/s328.120"><num value="328.120">§328.120</num><heading>Purpose</heading><content>The purpose of this subchapter is to establish procedures and requirements for the labeling of certain plastic containers.</content><note type="source"><p>Source Note: The provisions of this §328.120 adopted to be effective March 5, 2000, 25 TexReg 1712.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scH/s328.121"><num value="328.121">§328.121</num><heading>Applicability</heading><content>The sections in this subchapter are applicable to persons who are involved in the manufacturing or distribution of a plastic bottle or rigid plastic container regulated by the commission pursuant to the Texas Health and Safety Code, §§369.001-369.002.</content><note type="source"><p>Source Note: The provisions of this §328.121 adopted to be effective March 5, 2000, 25 TexReg 1712.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scH/s328.122"><num value="328.122">§328.122</num><heading>Definitions of Terms</heading><content>The following words and terms, when used in this subchapter shall have the following meanings, unless the context clearly indicates otherwise.(1) Plastic--A material made of polymeric organic compounds and additives that can be shaped by flow.(2) Plastic bottle--A plastic container that:(A) has a neck smaller than the body of the container;(B) is designed for a screw top, snap cap, or other closure; and(C) has a capacity of not less than 16 fluid ounces or more than five gallons.(3) Rigid plastic container--A formed or molded container, other than a plastic bottle, that:(A) is intended for single use;(B) is composed predominantly of plastic resin;(C) has a relatively inflexible finite shape or form; and(D) has a capacity of not less than eight ounces or more than five gallons.</content><note type="source"><p>Source Note: The provisions of this §328.122 adopted to be effective March 5, 2000, 25 TexReg 1712.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scH/s328.123"><num value="328.123">§328.123</num><heading>Symbols for Certain Plastic Containers</heading><content>(a) A person may not manufacture or distribute a plastic bottle or rigid plastic container unless the appropriate symbol indicating the plastic resin used to produce the bottle or container is molded into or imprinted on the bottom or near the bottom of the bottle or container. (b) A plastic bottle or rigid plastic container with a base cup or other component of a material different from the basic material used in making the bottle or container shall bear the symbol indicating its basic material. (c) The symbols used under this section must consist of a number placed within a triangle of arrows and of letters placed below the triangle of arrows. The triangle must be equilateral, formed by three arrows with the apex of each point of the triangle at the midpoint of each arrow, rounded with a short radius. The arrowhead of each arrow must be at the midpoint of each side of the triangle with a short gap separating the arrowhead from the base of the adjacent arrow. The triangle formed by the arrows must depict a clockwise path around the number. (d) The numbers, letters of the symbols, and the plastic resins represented by the symbols are: (1) 1 and PETE, representing polyethylene terephthalate; (2) 2 and HDPE, representing high density polyethylene; (3) 3 and V, representing vinyl; (4) 4 and LDPE, representing low density polyethylene; (5) 5 and PP, representing polypropylene; (6) 6 and PS, representing polystyrene; and (7) 7 and OTHER, representing all other resins, including layered plastics of a combination of materials. (e) The commission approves the use of Society of Automotive Engineers, Inc. (SAE) J1344 Marking of Plastic Parts, an internationally recognized label coding system published by the SAE. This optional label coding system is approved for use with special-purpose plastic bottles or rigid plastic containers that are components of motor vehicles in place of the symbols described by subsections (c) and (d) of this section. (f) The commission shall: (1) maintain a list of the symbols; and (2) provide a copy of that list to any person on request.</content><note type="source"><p>Source Note: The provisions of this §328.123 adopted to be effective March 5, 2000, 25 TexReg 1712.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c328/scI"><num value="I">SUBCHAPTER I</num><heading>COMPUTER EQUIPMENT RECYCLING PROGRAM</heading><section identifier="/us/state/tx/tac/t30/p1/c328/scI/s328.131"><num value="328.131">§328.131</num><heading>Purpose</heading><content>(a) The purpose of this subchapter is to:(1) help establish a comprehensive, convenient, and environmentally sound program for the collection, recycling, and reuse of used computer equipment; and(2) establish requirements for persons that manufacture or sell new computer equipment.(b) The program is based on individual manufacturer responsibility and shared responsibility among consumers, retailers, and the government of this state.</content><note type="source"><p>Source Note: The provisions of this §328.131 adopted to be effective June 12, 2008, 33 TexReg 4506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scI/s328.133"><num value="328.133">§328.133</num><heading>Applicability and Effective Date</heading><content>(a) The collection, recycling, and reuse provisions of this subchapter:(1) apply exclusively to computer equipment used by an individual primarily for personal or home business use and returned to the manufacturer by a consumer in this state; and(2) do not impose any obligation on an owner or operator of a solid waste facility.(b) This subchapter does not apply to:(1) a television, any part of a motor vehicle, a personal digital assistant, or a telephone; or(2) a consumer's lease of computer equipment or a consumer's use of computer equipment under a lease agreement.(c) This subchapter applies to the following persons, as defined in §328.135 of this title (relating to Definitions):(1) manufacturers;(2) retailers;(3) consumers; and(4) recyclers.(d) The effective date of the enforcement provisions of §328.143(d) or (e) of this title (relating to Enforcement) and of the penalty provisions of §328.153 of this title (relating to Amount of Penalties) and §328.155 of this title (relating to Disposition of Penalty) is September 1, 2008.(e) Facilities involved, under this subchapter or otherwise, in the collection of used computer equipment for recycling or the recycling of used computer equipment must be in compliance with the following as applicable:(1) §330.11(e)(2) of this title (relating to Notification Required);(2) §335.6 of this title (relating to Notification Requirements);(3) Subchapter A of this chapter (relating to Purpose and General Information); and(4) §328.149 of this title (relating to Sound Environmental Management).</content><note type="source"><p>Source Note: The provisions of this §328.133 adopted to be effective June 12, 2008, 33 TexReg 4506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scI/s328.135"><num value="328.135">§328.135</num><heading>Definitions</heading><content>The following terms, when used in this subchapter, have the following meanings.(1) Brand--The name, symbol, logo, trademark, or other information that identifies a whole product rather than the components of the product.(2) Computer--A desktop computer or notebook computer.(3) Computer equipment--A desktop or notebook computer, including a computer monitor or other display device that does not contain a tuner. Computer equipment includes its accompanying keyboard and mouse if the keyboard and mouse are from the same manufacturer as the computer equipment.(4) Consumer--An individual who uses computer equipment that is purchased primarily for personal or home business use.(5) Desktop computer--An electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage functions; not including an automated typewriter or typesetter. A desktop computer has a main unit that is intended to be located in a permanent location, often on a desk or on the floor. A desktop computer is not designed for portability and generally utilizes an external monitor, keyboard, and mouse.(6) Laptop (or notebook) computer--An electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage functions; not including a portable handheld calculator, or a portable digital assistant or similar specialized device. A notebook computer has an incorporated video display greater than four inches in size and can be carried as one unit by an individual. A notebook computer is sometimes referred to as laptop computer, or tablet computer.(7) Manufacturer--A person:(A) who manufactures or manufactured computer equipment under a brand that:(i) the person owns or owned; or(ii) the person is or was licensed to use, other than under a license to manufacture computer equipment for delivery exclusively to or at the order of the licensor;(B) who sells or sold computer equipment manufactured by others under a brand that:(i) the person owns or owned; or(ii) the person is or was licensed to use, other than under a license to manufacture computer equipment for delivery exclusively to or at the order of the licensor;(C) who manufactures or manufactured computer equipment without affixing a label with a brand;(D) who manufactures or manufactured computer equipment to which the person affixes or affixed a label with a brand that:(i) the person does not or has not owned; or(ii) the person is not or was not licensed to use; or(E) who imports or imported computer equipment manufactured outside the United States into the United States, unless at the time of importation the company or licensee that sells or sold the computer equipment to the importer has or had assets or a presence in the United States sufficient to be considered the manufacturer.(8) Notebook computer--See laptop computer.(9) Recycler--A person who owns or operates a collection and processing point for computer equipment purchased by a consumer and intended for recycling.(10) Recycling--See definition of "recycling" in §330.3 of this title (relating to Definitions).(11) Retailer--A person who owns or operates a business that sells new computer equipment, including sales through a sales outlet, the Internet, or a catalog, whether or not the seller has a physical presence in this state.(12) Reuse--The use of a used product or part of a used product, which has been recovered or diverted from the solid waste stream, for its original intended purpose.(13) Television--Any telecommunication system device that can receive moving pictures and sound over a distance and includes a television tuner or a display device peripheral to a computer that contains a television tuner.(14) Tuner--An electronic device or circuit used to select signals at a specific frequency for amplification and conversion to pictures or sound.</content><note type="source"><p>Source Note: The provisions of this §328.135 adopted to be effective June 12, 2008, 33 TexReg 4506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scI/s328.137"><num value="328.137">§328.137</num><heading>Manufacturer Responsibilities</heading><content>(a) Before a manufacturer may offer computer equipment for sale in this state, the manufacturer shall:(1) adopt and implement a recovery plan; and(2) affix a permanent, readily visible label to the computer equipment with the manufacturer's brand(s).(b) The recovery plan must enable a consumer to recycle computer equipment without paying a separate fee at the time of recycling and must include provisions for:(1) the manufacturer's collection from a consumer of any used computer equipment labeled with the manufacturer's brand(s);(2) recycling or reuse of computer equipment collected under paragraph (1) of this subsection, including information for the consumer on how and where to return the computer equipment labeled with the manufacturer's brand(s). This information must include, at a minimum, an Internet link that consumers can access to find out specifically how and where to return the computer equipment labeled with the manufacturer's brand(s). If the Internet link is going to change, the manufacturer shall notify the commission of what the new Internet link will be 30 days in advance; and(3) collection of computer equipment that is:(A) reasonably convenient and available to consumers in this state; and(B) designed to meet the collection needs of consumers in this state.(c) Examples of collection methods that alone or combined meet the convenience requirements of this section follow. These are merely examples, meaning that other collection methods not mentioned, alone or combined, may meet the convenience requirements of this section:(1) a system by which the manufacturer or the manufacturer's designee offers the consumer a system for returning computer equipment by mail, without the consumer having to pay any mailing, shipping , handling, or any other cost directly related to mailing;(2) a system using a physical collection site that the manufacturer or the manufacturer's designee keeps open and staffed and to which the consumer may return computer equipment; and(3) a system using a collection event held by the manufacturer or the manufacturer's designee at which the consumer may return computer equipment.(d) Collection services under this section may use existing collection and consolidation infrastructure for handling computer equipment and may include electronic recyclers and repair shops, recyclers of other commodities, reuse organizations, not-for-profit corporations, retailers, recyclers, and other suitable operations. Other suitable operations include, but are not limited to, local governments.(e) The manufacturer:(1) shall include collection, recycling, and reuse information on the manufacturer's publicly available Internet site, including a list of all of the manufacturer's brands both in use and no longer in use;(2) shall provide to the commission a recovery plan in accordance with subsection (b) of this section and notification that the manufacturer has, or will have by September 1, 2008, a compliant collection program. In order to be eligible for the September 1, 2008 commission's list of manufacturers that have recovery plans and have notified the commission that they have a compliant collection program, a manufacturer must submit its recovery plan and notification no later than July 1, 2008; and(3) may include collection, recycling, and reuse information in the packaging or in other materials that accompany the manufacturer's computer equipment when the equipment is sold.(f) Information about collection, recycling, and reuse on a manufacturer's publicly available Internet site does not constitute a determination by the commission that the manufacturer's recovery plan or actual practices are in compliance with this subchapter or other law.(g) Each manufacturer that has submitted a recovery plan shall submit an annual recycling report to the commission by January 31, 2010, or by January 31 of each year after submitting a recovery plan, that includes:(1) the weight of computer equipment collected, recycled, and reused during the preceding calendar year; and(2) documentation verifying the collection, recycling, and reuse of that computer equipment in a manner that complies with §328.149 of this title (relating to Sound Environmental Management) and with §305.128 of this title (relating to Signatories to Reports). The certification required by §305.128(c) of this title must also state either at the beginning or end, "I, {name}, certify under penalty of law that all computer equipment collected by {company name} under 30 TAC Chapter 328, Subchapter I, has been recycled or reused in a manner that complies with federal, state, and local law."(h) If more than one person is a manufacturer of a certain brand of computer equipment as defined by §328.135 of this title (relating to Definitions), any of those persons may assume responsibility for and satisfy the obligations of a manufacturer under this subchapter for that brand. If none of those persons assumes responsibility or satisfies the obligations of a manufacturer for the computer equipment of that brand, the commission may consider any of those persons to be the responsible manufacturer for purposes of this subchapter.(i) The obligations under this subchapter of a manufacturer who manufactures or manufactured computer equipment, or sells or sold computer equipment manufactured by others, under a brand that was previously used by a different person in the manufacture of the computer equipment, extend to all computer equipment bearing that brand regardless of its date of manufacture.</content><note type="source"><p>Source Note: The provisions of this §328.137 adopted to be effective June 12, 2008, 33 TexReg 4506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scI/s328.139"><num value="328.139">§328.139</num><heading>Retailer Responsibilities</heading><content>(a) A person who is a retailer of computer equipment may not sell or offer to sell new computer equipment in this state unless the equipment is labeled with the manufacturer's brand(s) and the manufacturer is included on the commission's list of manufacturers that have recovery plans and have notified the commission that they have a compliant collection program.(b) Retailers can go to the commission's Internet site and view all manufacturers that are listed as having recovery plans and having notified the commission that they have a compliant collection program. Computer equipment from manufacturers on that list may be sold in or into the State of Texas.(c) A retailer is not required to collect computer equipment for recycling or reuse under this subchapter unless the retailer is also a manufacturer as defined by §328.135(7) of this title (relating to Definitions). This does not mean that a retailer who is also a manufacturer has to collect computer equipment at a retail outlet.</content><note type="source"><p>Source Note: The provisions of this §328.139 adopted to be effective June 12, 2008, 33 TexReg 4506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scI/s328.141"><num value="328.141">§328.141</num><heading>Consumer Responsibilities and Commission Responsibilities</heading><content>(a) A consumer is responsible for any information in any form left on the consumer's computer equipment that is collected, recycled, or reused.(b) A consumer is encouraged to learn about recommended methods for recycling and reuse of used computer equipment by visiting the commission's and manufacturers' Internet sites.(c) The commission shall educate consumers regarding the collection, recycling, and reuse of computer equipment.(d) The commission shall host or designate another person to host an Internet site providing consumers with information about the recycling and reuse of computer equipment, including best management practices and information about, and links to, information on:(1) manufacturers' collection, recycling, and reuse programs, including manufacturers' recovery plans; and(2) computer equipment collection events, collection sites, and community computer equipment recycling and reuse programs.(e) The commission shall enforce this subchapter per §328.143 of this title (relating to Enforcement).(f) The commission shall compile information from manufacturers and issue an electronic report to the committee in each house of the legislature having primary jurisdiction over environmental matters not later than March 1 of each year, starting in 2011.(g) The following list does not constitute a determination by the commission that the manufacturer's collection program and actual practices are in compliance with this subchapter or other law. The commission shall maintain an online list of manufacturers that:(1) have recovery plans that comply with §328.137(b) of this title (relating to Manufacturer Responsibilities); and(2) have notified the commission that they have a compliant collection program.(h) This subchapter does not authorize the commission to impose a fee, including a recycling fee or registration fee, on a consumer, manufacturer, retailer, or person who recycles or reuses computer equipment.</content><note type="source"><p>Source Note: The provisions of this §328.141 adopted to be effective June 12, 2008, 33 TexReg 4506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scI/s328.143"><num value="328.143">§328.143</num><heading>Enforcement</heading><content>(a) The commission may conduct audits and inspections to determine compliance with this subchapter.(b) The commission and the attorney general, as appropriate, shall enforce this subchapter and, except as provided by subsections (d) and (e) of this section, take enforcement action against any manufacturer, retailer, or person who recycles or reuses computer equipment for failure to comply with this subchapter.(c) The attorney general may file suit under Texas Water Code, §7.032, to enjoin an activity related to the sale of computer equipment in violation of this subchapter.(d) The commission shall issue a warning notice to a manufacturer on the manufacturer's first violation of this subchapter. The manufacturer must comply with this subchapter not later than the 60th day after the date the warning notice is issued.(e) A retailer who receives a warning notice from the commission that the retailer's inventory violates this subchapter because it includes computer equipment from a manufacturer that has not submitted the recovery plan required by §328.137 of this title (relating to Manufacturer Responsibilities) must bring the inventory into compliance with this subchapter not later than the 60th day after the date the warning notice is issued.</content><note type="source"><p>Source Note: The provisions of this §328.143 adopted to be effective June 12, 2008, 33 TexReg 4506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scI/s328.145"><num value="328.145">§328.145</num><heading>Financial and Proprietary Information</heading><content>Financial or proprietary information submitted to the commission under this subchapter is exempt from public disclosure under Texas Government Code, Chapter 552.</content><note type="source"><p>Source Note: The provisions of this §328.145 adopted to be effective June 12, 2008, 33 TexReg 4506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scI/s328.147"><num value="328.147">§328.147</num><heading>Liability</heading><content>(a) A manufacturer or retailer of computer equipment is not liable in any way for information in any form that a consumer leaves on computer equipment that is collected, recycled, or reused under this subchapter.(b) This subchapter does not exempt a person from liability under other law.</content><note type="source"><p>Source Note: The provisions of this §328.147 adopted to be effective June 12, 2008, 33 TexReg 4506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scI/s328.149"><num value="328.149">§328.149</num><heading>Sound Environmental Management</heading><content>(a) All computer equipment collected under this subchapter must be recycled or reused in a manner that complies with federal, state, and local law.(b) The commission adopts, as standards for recycling or reuse of computer equipment under this subchapter, the following portions of the standards in "Electronics Recycling Operating Practices" as approved by the board of directors of the Institute of Scrap Recycling Industries (ISRI), Inc., April 25, 2006. The remaining portions are voluntary unless required by other law. The adopted standards apply to computer equipment used by an individual primarily for personal or home business use and returned to the manufacturer by a consumer in this state and do not impose any obligation on an owner or operator of a solid waste facility. If at any time the United States Environmental Protection Agency (EPA) adopts standards for recycling or reuse of computer equipment that are determined by the commission to be an acceptable substitute, the commission may, by rule, revoke the ISRI standards and adopt the EPA standards.(1) General requirements for recyclers:(A) Following all efforts to refurbish or reuse computer equipment, the remaining computer equipment shall be manually dismantled for re-useable components or processed for recycling either in accordance with §328.4(b) of this title (relating to Limitations on Storage of Recyclable Materials) for those facilities subject to and not exempted from that section, or in accordance with the following conditions for those facilities exempt from or not subject to §328.4(b) of this title.(i) The facility can show that the material is potentially recyclable and has an economically feasible means of being recycled.(ii) Every six months, the amount of material that is processed for recycling (as defined in §328.2 of this title (relating to Definitions)), or transferred to a different site for recycling, equals at least 50% by weight or volume of the material accumulated at the beginning of the six-month period. "Every six months" starts, for a new recycling facility, 180 days after opening; for an existing recycling facility, 180 days after the facility, under this subchapter, starts providing services to a manufacturer. In calculating the percentage or turnover, the percentage requirements shall be applied to each material of the same type.(B) Recyclers shall only dispose of computer-equipment that cannot be refurbished; reused; or, in accordance with Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), §330.11(e) of this title (relating to Notification Required) and Subchapter A of this chapter (relating to Purpose and General Information), recycled.(C) For all transfers of computer equipment intended for recycling, recyclers shall maintain commercial contracts, or equivalent commercial arrangements, that shall include:(i) computer-equipment quantity and type;(ii) packaging requirements; and(iii) recycling methods and specifications.(D) Recyclers shall maintain records for a minimum of three years; or longer if required by local, state, or federal law; including any of the following which are applicable:(i) manifests;(ii) bills of lading;(iii) waste disposal records; and(iv) records that document:(I) if the computer equipment is sent to a facility affiliated with (as defined in §328.2 of this title) the recycler, the facility's location and the condition of the computer equipment (refurbished, reuseable, recyclable, or to be determined); and(II) if the computer equipment is sent to a facility not affiliated with (as defined in §328.2 of this title) the recycler, the location of the first unaffiliated facility to which the computer equipment is sent and the condition of the computer equipment (refurbished, reuseable, recyclable, or to be determined).(E) Recyclers shall maintain and possess a written work practice that specifically addresses, at least, the following:(i) lead;(ii) mercury;(iii) beryllium;(iv) cadmium;(v) batteries;(vi) polychlorinated biphenyls; and(vii) free-flowing fluids such as oils and lubricants.(F) Recyclers shall ensure that computer equipment is stored and processed in a manner that minimizes the potential release of any hazardous substance into the environment.(G) Recyclers shall package all computer equipment designated for reuse in a manner that protects against damage and minimizes the potential for releases of hazardous substances during storage and transportation. Recyclers must package all computer equipment designated for processing in a manner that minimizes the potential for releases of hazardous substances during storage and transportation.(H) The computer-equipment recycling facility shall operate in accordance with the closure and financial-assurance requirements of §328.5 of this title (relating to Reporting and Recordkeeping Requirements), unless exempted under §328.5 of this title.(2) Manual dismantling and mechanical processing at a computer-equipment recycling facility.(A) Following all efforts to refurbish or reuse computer equipment, the remaining computer equipment should be dismantled for useable components or commodities; processed for recycling in accordance with the following conditions; or properly disposed of per subsection (b)(1)(B) of this section.(i) The facility can show that the material is potentially recyclable and has an economically feasible means of being recycled.(ii) Every six months, the amount of material that is processed for recycling (as defined in §328.2 of this title), or transferred to a different site for recycling, equals at least 50% by weight or volume of the material accumulated at the beginning of the six-month period. "Every six months" starts, for a new recycling facility, 180 days after opening; for an existing recycling facility, 180 days after the facility, under this subchapter, starts providing services to a manufacturer. In calculating the percentage of turnover, the percentage requirements shall be applied to each material of the same type.(B) Recyclers shall have a written, up-to-date plan for responding to and reporting pollutant releases, including accidents, spills, fires, or explosions.(C) Hazardous waste shall be managed, recycled, and disposed of in accordance with Chapter 335 of this title.</content><note type="source"><p>Source Note: The provisions of this §328.149 adopted to be effective June 12, 2008, 33 TexReg 4506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scI/s328.151"><num value="328.151">§328.151</num><heading>Federal Preemption; Expiration</heading><content>(a) If federal law establishes a national program for the collection and recycling of computer equipment and the commission determines that the federal law substantially meets the purposes of this subchapter, the commission may adopt an agency statement that interprets the federal law as preemptive of this subchapter.(b) This subchapter expires on the date the commission issues a statement under this section.</content><note type="source"><p>Source Note: The provisions of this §328.151 adopted to be effective June 12, 2008, 33 TexReg 4506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scI/s328.153"><num value="328.153">§328.153</num><heading>Amount of Penalties</heading><content>(a) The amount of the penalty assessed against a manufacturer that does not label its computer equipment or adopt and implement a recovery plan as required by §328.137 of this title (relating to Manufacturer Responsibilities), may not exceed $10,000 for the second violation or $25,000 for each subsequent violation.(b) The amount of penalty assessed against a recycling facility for a violation of this subchapter shall be determined by enforcement protocols established for this subchapter. The amount of the penalty assessed against a recycling facility for a violation of Subchapter A of this chapter (relating to Purpose and General Information) shall be determined by enforcement protocols established for that subchapter.(c) Except as provided by subsections (a) and (b) of this section, the amount of the penalty assessed against a manufacturer for any other violation of this subchapter may not exceed $1,000 for the second violation or $2,000 for each subsequent violation.(d) The amount of the penalty assessed against a retailer for a violation of this subchapter may not exceed $1,000 for the second violation or $2,000 for each subsequent violation.(e) A penalty under this section is in addition to any other penalty that may be assessed for a violation of Texas Health and Safety Code, Chapter 361, Subchapter Y.</content><note type="source"><p>Source Note: The provisions of this §328.153 adopted to be effective June 12, 2008, 33 TexReg 4506.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scI/s328.155"><num value="328.155">§328.155</num><heading>Disposition of Penalty</heading><content>A penalty collected under §328.153(d) or (e) of this title (relating to Amount of Penalties) shall be paid to the commission and deposited to the credit of the waste management account.</content><note type="source"><p>Source Note: The provisions of this §328.155 adopted to be effective June 12, 2008, 33 TexReg 4506.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c328/scJ"><num value="J">SUBCHAPTER J</num><heading>TELEVISION EQUIPMENT RECYCLING PROGRAM</heading><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.161"><num value="328.161">§328.161</num><heading>Purpose</heading><content>(a) The purpose of this subchapter is to help establish a comprehensive, convenient, and environmentally sound program for the collection and recycling of television equipment.(b) The program is based on individual television manufacturer responsibility and shared responsibility among consumers, retailers, and the government of this state.</content><note type="source"><p>Source Note: The provisions of this §328.161 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.163"><num value="328.163">§328.163</num><heading>Applicability and Effective Dates</heading><content>(a) Except as provided by this section and Texas Health and Safety Code, §361.991, this subchapter applies only to covered television equipment that is:(1) offered for sale or sold to a consumer in this state; or(2) used by a consumer in this state and returned for recycling.(b) This subchapter does not apply to:(1) computer equipment as that term is defined by §328.135 of this title (relating to Definitions);(2) a display device that is peripheral to a computer and contains a television tuner, if that device is collected and recycled by its manufacturer in accordance with Subchapter I of this chapter (relating to Computer Equipment Recycling Program);(3) any part of a motor vehicle, including a replacement part;(4) a device that is functionally or physically part of or connected to another system or piece of equipment:(A) designed and intended for use in an industrial, governmental, commercial, research and development, or medical setting, including diagnostic monitoring or control equipment; or(B) used for security, sensing, monitoring, antiterrorism, or emergency services purposes;(5) a device that is contained in exercise equipment intended for home use or an appliance intended for home use, including a clothes washer, clothes dryer, refrigerator, refrigerator and freezer, microwave oven, conventional oven or range, dishwasher, room air conditioner, dehumidifier, and air purifier;(6) a telephone of any type;(7) a personal digital assistant;(8) a global positioning system;(9) a consumer's lease of covered television equipment or a consumer's use of covered television equipment under a lease agreement; or(10) the sale or lease of covered television equipment to an entity when the television manufacturer and the entity enter into a contract that effectively addresses the recycling of equipment that has reached the end of its useful life.(c) This subchapter may not be enforced until July 1, 2012.(d) A registration and, except as provided by §328.175 of this title (relating to Manufacturer Recycling Leadership Program), registration fee required by §328.171(a)(2) of this title (relating to Manufacturer's Registration and Reporting) is required to be submitted for the first time by January 31, 2013. A report required by §328.171(d) of this title is required to be submitted for the first time by January 31, 2014.(e) A recovery plan required by §328.173(b) of this title (relating to Manufacturer's Recovery Plan and Related Responsibilities) is required to be submitted for the first time by January 31, 2013.(f) Documentation required by §328.175(g) of this title is required to be submitted for the first time by January 31, 2013.(g) A collection report required by §328.177(a) of this title (relating to Recycling Leadership Program Collection Report) is required to be submitted for the first time by January 31, 2015.(h) A retailer of covered television equipment is not required to provide the information required by §328.179(b) of this title (relating to Retailer Responsibilities) until July 1, 2012.(i) Notwithstanding §328.179 of this title, a retailer of television equipment may sell television equipment inventory that the retailer acquired before April 1, 2013 without incurring a penalty.(j) A registration required by §328.181(b) of this title (relating to Recycler Responsibilities) is required to be submitted for the first time by January 31, 2013. A recycler is required to submit the report required by §328.181(b)(5) of this title for the first time by January 31, 2014.(k) The commission shall prepare and post the list required by §328.185(a) of this title (relating to Commission Responsibilities) for the first time by April 1, 2013.(l) The commission shall establish the state recycling rate, in accordance with §328.185(f) of this title, for the first time by November 1, 2013.(m) The commission shall provide applicable television manufacturers the television manufacturer's market share allocation, in accordance with §328.185(g) of this title, for the first time by December 1, 2013.(n) The commission shall prepare and submit the report required by §328.185(j) of this title, for the first time by March 1, 2014.</content><note type="source"><p>Source Note: The provisions of this §328.163 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.165"><num value="328.165">§328.165</num><heading>Definitions</heading><content>The following terms, when used in this subchapter, have the following meanings.(1) Brand--The name, symbol, logo, trademark, or other information that identifies a whole product rather than the components of the product.(2) Collector--A person who receives covered television equipment from consumers and arranges for the delivery of the covered television equipment to a recycler. A collector is prohibited from acting as a recycler unless registered as a recycler.(3) Consumer--An individual who uses covered television equipment that is purchased primarily for personal or home business use.(4) Covered television equipment--The following equipment marketed to and intended for consumers:(A) a direct view or projection television with a viewable screen of nine inches or larger whose display technology is based on cathode ray tube, plasma, liquid crystal, digital light processing, liquid crystal on silicon, silicon crystal reflective display, light-emitting diode, or similar technology; or(B) a display device that is peripheral to a computer that contains a television tuner.(5) Market share allocation--The quantity of covered television equipment, by weight, that an individual television manufacturer submitting a recovery plan under §328.173 of this title (relating to Manufacturer's Recovery Plan and Related Responsibilities) is responsible for collecting, reusing, and recycling, as computed by the commission under §328.185 of this title (relating to Commission Responsibilities).(6) Recycler--A person who separates collected equipment and refurbishes that equipment for reuse, or processes equipment to be returned to use in the form of raw materials or products. The term does not include an entity that solely collects or sorts television equipment prior to shipment for recycling.(7) Recycling--Any process by which equipment that would otherwise become solid waste or hazardous waste is collected, separated, and refurbished for reuse or processed to be returned to use in the form of raw material or products. The term does not include incineration.(8) Retailer--A person who owns or operates a business that sells new covered television equipment by any means directly to a consumer. The term does not include a person who, in the ordinary course of business, regularly leases, offers to lease, or arranges for leasing of merchandise under a rental-purchase agreement.(9) Television--An electronic device that contains a tuner that locks onto a selected carrier frequency and is capable of receiving and displaying video programming from a broadcast, cable, or satellite source.(10) Television manufacturer--A person that:(A) manufactures covered television equipment under a brand the person owns or is licensed to use;(B) manufactures covered television equipment without affixing a brand;(C) resells covered television equipment produced by other suppliers under a brand the person owns or is licensed to use;(D) manufactures covered television equipment, supplies it to any person within a distribution network that includes a wholesaler or retailer, and benefits from the sale of the covered television equipment through that distribution network; or(E) assumes the responsibilities of a television manufacturer under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §328.165 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.167"><num value="328.167">§328.167</num><heading>Sales Prohibition</heading><content>A person may not offer for sale in this state new covered television equipment unless the equipment has been labeled in compliance with §328.169 of this title (relating to Manufacturer's Labeling Requirement).</content><note type="source"><p>Source Note: The provisions of this §328.167 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.169"><num value="328.169">§328.169</num><heading>Manufacturer's Labeling Requirement</heading><content>A television manufacturer may sell or offer for sale in this state only covered television equipment that is labeled with the television manufacturer's brand. The label must be permanently affixed and readily visible.</content><note type="source"><p>Source Note: The provisions of this §328.169 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.171"><num value="328.171">§328.171</num><heading>Manufacturer's Registration and Reporting</heading><content>(a) General provisions.(1) A television manufacturer of covered television equipment shall register with the agency, on authorized agency forms or electronic submission in accordance with subsection (c) of this section, except as provided by §328.175 of this title (relating to Manufacturer Recycling Leadership Program). Initial registration is required by January 31, 2013.(2) A television manufacturer of covered television equipment shall renew its registration annually and is subject to the registration fee and payment requirements. The registration fee each year is $2,500 to be paid on or before January 31 of each year, starting January 31, 2013. A manufacturer's failure to properly or timely register does not exempt the manufacturer from such fee and payment requirements.(3) A manufacturer may designate a legally authorized representative to complete and submit the required registration information. However, the manufacturer remains responsible for compliance with the provisions of this section by such representative.(4) The registration or registration renewal must include:(A) a list of all brands the television manufacturer sells or offers for sale in this state regardless of whether the television manufacturer owns or is licensed to use the brand; and(B) contact information for the person the commission may contact regarding the television manufacturer's activities to comply with this subchapter.(b) Changes or additional information.(1) The manufacturer shall provide written notice to the executive director of the following:(A) change in manufacturer information (e.g., legally authorized representative, mailing address, or telephone number); and(B) change in list of all brands the television manufacturer sells or offers for sale in this state regardless of whether the television manufacturer owns or is licensed to use the brand.(2) Notice of any change or additional information must be submitted on the appropriate agency form that has been completed in accordance with this section.(3) Notice of any change or additional information must be submitted to the executive director within 30 days from the date of the occurrence of the change or addition.(c) Required Form for Providing Manufacturer's Registration Information.(1) Manufacturers shall provide the required information on the current agency registration form or approved electronic submission.(2) The manufacturer is responsible for ensuring that the registration form is fully complete and accurate. The form must be dated and signed by the manufacturer or a legally authorized representative of the manufacturer, and must be submitted to the agency in accordance with the time frames established in this chapter.(3) When any of the required manufacturer's registration information submitted to the executive director is determined to be incomplete or inaccurate (including illegible or unclear information), the executive director may require the manufacturer to submit additional information. A manufacturer shall submit any such required additional information within 30 days of receipt of such request.(d) Except as provided by §328.175 of this title, not later than January 31 of each year, each registered television manufacturer of covered television equipment shall report to the commission:(1) the total weight of covered television equipment for which the television manufacturer is responsible that was sold in this state during the preceding calendar year or, if the manufacturer does not track the weight of covered television equipment it sells by state, the television manufacturer may report the total weight of covered television equipment the television manufacturer sold nationally in the preceding calendar year;(2) the total weight of covered television equipment the television manufacturer collected, recycled, and reused in this state during the preceding calendar year; and(3) documentation that the collection, reuse, and recycling of the collected covered television equipment complies with §328.193 of this title (relating to Management of Collected Television Equipment).</content><note type="source"><p>Source Note: The provisions of this §328.171 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.173"><num value="328.173">§328.173</num><heading>Manufacturer's Recovery Plan and Related Responsibilities</heading><content>(a) This section does not apply to a television manufacturer that participates in a recycling leadership program described by §328.175 of this title (relating to Manufacturer Recycling Leadership Program).(b) Not later than the first January 31 that occurs after the date the television manufacturer first registers with the commission under §328.171 of this title (relating to Manufacturer's Registration and Reporting), each television manufacturer of covered television equipment sold in this state shall, individually or as a member of a group of television manufacturers, submit to the commission a recovery plan to collect, reuse, and recycle covered television equipment.(c) An individual television manufacturer that submits a recovery plan under subsection (b) of this section shall collect, reuse, and recycle covered television equipment. Beginning with the television manufacturer's second year of registration, the individual television manufacturer shall collect, reuse, and recycle the quantity of covered television equipment computed by the commission as the television manufacturer's market share allocation.(d) A group of television manufacturers that submits a recovery plan under subsection (b) of this section shall collect, reuse, and recycle covered television equipment. Beginning with the second year of registration for a group of television manufacturers, the group of television manufacturers shall collect, reuse, and recycle a quantity of covered television equipment equal to the sum of the combined market share allocations of the group's participants.(e) A recovery plan under subsection (b) of this section must include at a minimum:(1) a statement of whether the television manufacturer intends to collect and recycle its market share allocation through operation of its plan, individually or in partnership with other television manufacturers;(2) beginning with the television manufacturer's second year of registration, the total weight of covered television equipment collected, reused, and recycled by or on behalf of the television manufacturer during the preceding calendar year;(3) collection methods that allow a consumer to recycle covered television equipment without paying a separate fee at the time of recycling;(4) information for the consumer on how and where to return the television equipment labeled with the manufacturer's brand(s). This information must include, at a minimum, an Internet link that consumers can access to find out specifically how and where to return the television equipment labeled with the manufacturer's brand(s). If the Internet link is going to change, the manufacturer shall notify the commission of what the new Internet link will be 30 days in advance; and(5) a statement indicating that the manufacturer has, or will have, a compliant collection program by April 1, 2013.(f) The commission shall review the recovery plan for satisfaction of the requirements of this subchapter. If the registration and recovery plan are complete, the commission shall include the television manufacturer on the commission's Internet Web site listing as provided by §328.185 of this title (relating to Commission Responsibilities). The commission may reject the recovery plan if it does not meet all requirements of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §328.173 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.175"><num value="328.175">§328.175</num><heading>Manufacturer Recycling Leadership Program</heading><content>(a) A group of television manufacturers may establish a recycling leadership program to provide collection, transportation, and recycling infrastructure for covered television equipment in this state.(b) A recycling leadership program must provide at least 200 individual collection sites or programs in this state in a manner described by subsection (d) of this section where a consumer may return covered television equipment for reuse or recycling.(c) A television manufacturer may not charge a separate fee at the time of recycling under this section unless at the time of recycling a financial incentive of equal or greater value to the fee charged is provided by the television manufacturer.(d) Collection methods that may be used by a recycling leadership program under subsection (b) of this section for recycling of covered television equipment include the following:(1) a system by which the television manufacturer, an entity designated by the television manufacturer, or another private or public sector entity associated with the television manufacturer offers a consumer a physical collection site to return covered television equipment;(2) a system by which the television manufacturer, an entity designated by the television manufacturer, or another private or public sector entity associated with the television manufacturer offers the consumer a method for returning covered television equipment by mail, as long as the system provides for packaging that would prevent any spillage in case of breakage; and(3) a system by which the television manufacturer, an entity designated by the television manufacturer, or another private or public sector entity associated with the television manufacturer holds a collection event where the consumer may return covered television equipment.(e) A television manufacturer of covered television equipment sold in this state that is participating in a recycling leadership program for covered television equipment as of January 1 of any year is not subject during that year to:(1) the registration fees and registration renewal fees required by §328.171(a) of this title (relating to Manufacturer's Registration and Reporting); and(2) the reporting requirements of §328.171(d) of this title.(f) A television manufacturer of covered television equipment that is sold in this state that participates in a recycling leadership program shall individually or through the recycling leadership program establish and implement a public education program regarding collection, reuse, and recycling opportunities that exist in this state for covered television equipment. The public education program must:(1) inform consumers about the collection, reuse, and recycling opportunities for covered television equipment available in this state;(2) work with the commission and other interested parties to develop educational materials that inform consumers about collection, reuse, and recycling opportunities available in this state;(3) use television manufacturer-developed customer outreach materials, which may include packaging inserts, television manufacturers' Internet Web sites, and other communication methods, to inform consumers about collection, reuse, and recycling opportunities for covered television equipment available in this state; and(4) use television manufacturer-developed customer outreach materials to provide rural communities with a centralized Internet-based information center that provides information for those communities about:(A) best practices for collection, reuse, and recycling of covered television equipment; and(B) collection events and other recycling opportunities in those communities and surrounding areas.(g) Not later than January 31 of each year, each recycling leadership program must provide to the commission:(1) a list of the television manufacturers participating in the program as of January 1 of that year;(2) documentation that the recycling leadership program has established a public education program regarding collection, reuse, and recycling opportunities that exist in this state for covered television equipment; and(3) a list of the 200 sites or programs planned by the recycling leadership program participants for the current year. A map of the sites or programs may be included with the list.</content><note type="source"><p>Source Note: The provisions of this §328.175 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.177"><num value="328.177">§328.177</num><heading>Recycling Leadership Program Collection Report</heading><content>(a) Not later than January 31 of every other year beginning with the television manufacturer's second year of registration, a television manufacturer of covered television equipment sold in this state that is participating in a recycling leadership program under §328.175 of this title (relating to Manufacturer Recycling Leadership Program) shall, individually or as a member of the recycling leadership program, submit to the commission a collection report regarding the television manufacturer's collection, reuse, and recycling of covered television equipment.(b) The collection report must include:(1) an inventory of covered television equipment collection, reuse, and recycling opportunities that are currently available to consumers through the individual television manufacturer or the recycling leadership program in this state;(2) documentation of collection opportunities available to consumers in counties with populations of less than 50,000, including an analysis of the number of collection sites available to consumers in those counties compared to the number of opportunities available to consumers in those counties to purchase new covered television equipment;(3) the amount by weight of the covered television equipment that the individual television manufacturer or the recycling leadership program collected in the two preceding calendar years, separated by year;(4) documentation that the collection, reuse, and recycling of the collected covered television equipment complies with §328.193 of this title (relating to Management of Collected Television Equipment);(5) documentation that a financial incentive of equal or greater value to a fee charged at the time of recycling is provided by the television manufacturer, if a television manufacturer does charge a separate fee at the time of recycling; and(6) documentation, including an Internet address, that a television manufacturer of covered television equipment that is sold in this state that participates in a recycling leadership program has individually or through the recycling leadership program established and implemented a public education program regarding collection, reuse, and recycling opportunities that exist in this state for covered television equipment.(c) The inventory of covered television equipment collection, reuse, and recycling opportunities required by subsection (b)(1) of this section may be submitted in the form of a map noting the location of the opportunities.(d) The collection report may include a listing of other existing collection and recycling infrastructure for covered television equipment not associated with the recycling leadership program, including electronic recyclers and repair shops, recyclers of other appropriate commodities, reuse organizations, not-for-profit corporations, retailers, and other suitable operations, including local government collection events, if available.</content><note type="source"><p>Source Note: The provisions of this §328.177 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.179"><num value="328.179">§328.179</num><heading>Retailer Responsibilities</heading><content>(a) A retailer may order and sell only products from a television manufacturer that is included on the list published under §328.185 of this title (relating to Commission Responsibilities). For purposes of this subchapter, an order is considered to be the entire amount of covered television equipment requested from a manufacturer at one time for the purpose of sale by the retailer. A retailer shall consult that list before ordering covered television equipment in this state. A retailer is considered to have complied with this subsection and may sell a product in the retailer's inventory if, on the date the product was ordered from the television manufacturer, the television manufacturer was listed on the Internet Web site described by §328.185(a) of this title.(b) A retailer of covered television equipment shall provide to consumers in writing the information published by the commission regarding the legal disposition and recycling of television equipment. The information may be included with the sales receipt or as part of the packaging of the equipment. Alternatively, the retailer may provide the information required by this subsection through a toll-free telephone number and address of an Internet Web site provided to consumers.(c) This subchapter does not require a retailer to collect covered television equipment for recycling.</content><note type="source"><p>Source Note: The provisions of this §328.179 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.181"><num value="328.181">§328.181</num><heading>Recycler Responsibilities</heading><content>(a) This section does not apply to a television manufacturer.(b) A person who is engaged in the business of recycling covered television equipment in this state shall:(1) Register with the commission and certify, as follows, that the person is in compliance with the standards adopted under §328.193 of this title (relating to Management of Collected Television Equipment).(A) All certifications shall be signed as follows:(i) For a corporation, the application shall be signed by a responsible corporate officer. For purposes of this clause, a responsible corporate officer means a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation; or the manager of one or more manufacturing, production, or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million (in second-quarter 1980 dollars), if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures. Corporate procedures governing authority to sign certifications may provide for assignment or delegation to applicable corporate positions rather than to specific individuals.(ii) For a partnership or sole proprietorship, the certification shall be signed by a general partner or the proprietor, respectively.(iii) For a municipality, state, federal, or other public agency, the certification shall be signed by either a principal executive officer or a ranking elected official. For purposes of this clause, a principal executive officer of a federal agency includes the chief executive officer of the agency, or a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., regional administrator of the United States Environmental Protection Agency).(B) A person signing the certification shall make the following certification: "I certify that (insert name of person who is engaged in the business of recycling covered television equipment in this state) is in compliance with the standards adopted under Title 30 of the Texas Administrative Code §328.193 (relating to Management of Collected Television Equipment). I certify under penalty of law that this document and any attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."(C) All certifications shall be signed by a person described in subparagraph (A) of this paragraph or by a duly authorized representative of that person. A person is a duly authorized representative only if:(i) the authorization is made in writing by a person described in subparagraph (A) of this paragraph;(ii) the authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity or for environmental matters for the applicant, such as the position of plant manager, operator, environmental manager, or a position of equivalent responsibility. (A duly authorized representative may be either a named individual or any individual occupying a named position); and(iii) the written authorization is submitted to the executive director.(D) If an authorization under this section is no longer accurate because of a change in individuals or position, a new authorization satisfying the requirements of this section must be submitted to the executive director prior to or together with any certifications to be signed by an authorized representative.(2) On or before January 31 of each year renew the registration with the commission and certify, per paragraph (1) of this subsection, the person's continued compliance with §328.193 of this title.(3) Recycle all covered television equipment accepted for recycling in accordance with §328.193 of this title.(4) Maintain a written log recording the weight or volume of all covered television equipment received by the person and the disposition of that equipment.(5) Annually report to the commission by January 31 the total weight or volume of covered television equipment received, recycled, and disposed of by the person in the preceding calendar year.</content><note type="source"><p>Source Note: The provisions of this §328.181 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.183"><num value="328.183">§328.183</num><heading>Liability</heading><content>(a) A television manufacturer, retailer, or person who recycles covered television equipment is not liable in any way for information in any form that a consumer leaves on covered television equipment that is collected or recycled under this subchapter.(b) This subchapter does not exempt a person from liability under other law.</content><note type="source"><p>Source Note: The provisions of this §328.183 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.185"><num value="328.185">§328.185</num><heading>Commission Responsibilities</heading><content>(a) The commission shall publish on a publicly accessible Internet Web site a list of television manufacturers:(1) whose recovery plans have been approved by the commission, if applicable; who have certified that their public education programs are in full compliance with this subchapter, if applicable; and who are in compliance with the registration and fee requirements of this subchapter, if applicable; or(2) who manufacture a display device that is peripheral to a computer and contains a television tuner; who collect and recycle the device in accordance with Subchapter I of this chapter (relating to Computer Equipment Recycling Program); and who do not manufacture any other device subject to this subchapter.(b) The commission shall remove television manufacturers no longer in compliance under subsection (a) of this section from the Internet Web site once each fiscal quarter.(c) The commission shall educate consumers regarding the collection and recycling of covered television equipment.(d) The commission shall host or designate another person to host an Internet Web site and shall provide a toll-free telephone number to provide consumers with information about the recycling of covered television equipment, including best management practices and information about or links to information about:(1) television manufacturers' collection and recycling programs, including television manufacturers' recovery plans; and(2) covered television equipment collection events, collection sites, and community television equipment recycling programs.(e) Information about collection and recycling provided on a television manufacturer's publicly available Internet Web site and through a toll-free telephone number does not constitute a determination by the commission that the television manufacturer's recovery plan or actual practices are in compliance with this subchapter or other law. The commission's list under subsection (a) of this section does not constitute a determination by the commission that a television manufacturer's actual practices are in compliance with this subchapter or other law.(f) Not later than November 1 of each year, the commission shall establish the state recycling rate by computing the ratio of the weight of total returns of covered television equipment in this state by television manufacturers submitting a recovery plan under §328.173 of this title (relating to Manufacturer's Recovery Plan and Related Responsibilities) to the total weight of covered television equipment sold in this state by television manufacturers submitting a recovery plan under §328.173 of this title during the preceding year.(g) Not later than December 1 of each year, the commission shall compute and provide to each registered television manufacturer submitting a recovery plan under §328.173 of this title the television manufacturer's market share allocation for collection, reuse, and recycling for the following year. A television manufacturer's market share allocation equals the weight of the television manufacturer's covered television equipment sold in this state during the preceding calendar year multiplied by the state recycling rate determined under subsection (f) of this section.(h) In any year in which more than one recycling leadership program is implemented under §328.175 of this title (relating to Manufacturer Recycling Leadership Program), the commission shall review all active recycling leadership programs established under this subchapter to ensure the programs are operating in a manner consistent with the goals of this subchapter, including a balanced recycling effort. Based on the commission's review, the commission may make recommendations to the legislature on ways to improve the balance of the recycling effort.(i) The commission shall provide to each county and municipality of this state information regarding the legal disposal and recycling of covered television equipment. The information must be provided in writing.(j) Biennial Report to Legislature.(1) The commission shall compile information from television manufacturers and issue an electronic report to the committee in each house of the legislature having primary jurisdiction over environmental matters not later than March 1 of each even-numbered year.(2) The report must include:(A) collection information provided to the commission by each television manufacturer's report required by §328.171 of this title (relating to Manufacturer's Registration and Reporting) or §328.177 of this title (relating to Recycling Leadership Program Collection Report), as applicable;(B) a summary of comments that have been received from stakeholders such as television manufacturers, electronic equipment recyclers, local governments, and nonprofit organizations;(C) any recommendations under subsection (h) of this section; and(D) any other information that would assist the legislature in evaluating the effectiveness of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §328.185 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.187"><num value="328.187">§328.187</num><heading>Enforcement</heading><content>(a) The commission may conduct audits and inspections to ensure compliance with this subchapter and rules adopted under this subchapter.(b) The commission and the attorney general, as appropriate, shall enforce this subchapter and, except as provided by subsections (d) and (e) of this section, take enforcement action against a television manufacturer, a retailer, or a person who recycles covered television equipment.(c) The executive director or the attorney general may institute a suit under Texas Water Code, §7.032, to enjoin an activity related to the sale of covered television equipment in violation of this subchapter.(d) The commission shall issue a warning notice to a person on the person's first violation of this subchapter. The person must comply with this subchapter not later than the 60th day after the date the warning notice is issued.(e) A retailer who receives a warning notice from the commission that the retailer's inventory violates this subchapter because it includes covered television equipment from a television manufacturer that is not in compliance with this subchapter must bring the inventory into compliance with this subchapter not later than the 60th day after the date the warning notice is issued.</content><note type="source"><p>Source Note: The provisions of this §328.187 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.189"><num value="328.189">§328.189</num><heading>Financial and Proprietary Information</heading><content>Financial or proprietary information submitted to the commission under this subchapter is exempt from public disclosure under Texas Government Code, Chapter 552.</content><note type="source"><p>Source Note: The provisions of this §328.189 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.191"><num value="328.191">§328.191</num><heading>Consumer Responsibilities</heading><content>(a) A consumer is responsible for any information in any form left on the consumer's covered television equipment that is collected or recycled.(b) A consumer is encouraged to learn about recommended methods for recycling covered television equipment that has reached the end of its useful life by visiting the commission's and television manufacturers' Internet Web sites or calling their toll-free telephone numbers.</content><note type="source"><p>Source Note: The provisions of this §328.191 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.193"><num value="328.193">§328.193</num><heading>Management of Collected Television Equipment</heading><content>(a) Covered television equipment collected under this subchapter must be disposed of or recycled in a manner that complies with federal, state, and local law.(b) The commission adopts, as standards for recycling or reuse of covered television equipment under this subchapter, the following portions of the standards in "Electronics Recycling Operating Practices" as approved by the board of directors of the Institute of Scrap Recycling Industries (ISRI), Incorporated, April 25, 2006. The remaining portions of the standards are voluntary unless required by other law. The adopted standards apply to covered television equipment recycled or reused in this state. If at any time the United States Environmental Protection Agency (EPA) adopts standards for recycling or reuse of television equipment that are determined by the commission to be an acceptable substitute, the commission may, by rule, revoke the ISRI standards and adopt the EPA standards.(1) General requirements for recyclers.(A) Following all efforts to refurbish or reuse covered television equipment, the remaining covered television equipment shall be manually dismantled for reusable components or processed for recycling either in accordance with §328.4(b) of this title (relating to Limitations on Storage of Recyclable Materials) for those facilities subject to and not exempted from that section, or in accordance with the following conditions for those facilities exempt from or not subject to §328.4(b) of this title.(i) The facility can show that the material is potentially recyclable and has an economically feasible means of being recycled.(ii) Every six months, the amount of material that is processed for recycling (as defined in §328.2 of this title (relating to Definitions)), or transferred to a different site for recycling, equals at least 50% by weight or volume of the material accumulated at the beginning of the six-month period. "Every six months" starts, for a new recycling facility, 180 days after opening; for an existing recycling facility, 180 days after the facility, under this subchapter, starts providing services to a manufacturer. In calculating the percentage or turnover, the percentage requirements shall be applied to each material of the same type.(B) Recyclers shall only dispose of covered television equipment that cannot be refurbished; reused; or, in accordance with Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), §330.11(e) of this title (relating to Notification Required), and Subchapter A of this chapter (relating to Purpose and General Information), recycled.(C) For all transfers of covered television equipment intended for recycling, recyclers shall maintain commercial contracts, or equivalent commercial arrangements, that shall include:(i) covered television equipment quantity and type;(ii) packaging requirements; and(iii) recycling methods and specifications.(D) Recyclers shall maintain records for a minimum of three years; or longer if required by local, state, or federal law; including any of the following which are applicable:(i) manifests;(ii) bills of lading;(iii) waste disposal records; and(iv) records that document:(I) if the covered television equipment is sent to a facility affiliated with (as defined in §328.2 of this title) the recycler, the facility's location, and the condition of the covered television equipment (refurbished, reusable, recyclable, or to be determined); and(II) if the covered television equipment is sent to a facility not affiliated with (as defined in §328.2 of this title) the recycler, the location of the first unaffiliated facility to which the covered television equipment is sent and the condition of the covered television equipment (refurbished, reusable, recyclable, or to be determined).(E) Recyclers shall maintain and possess a written work practice that specifically addresses, at least, the following:(i) lead;(ii) mercury;(iii) beryllium;(iv) cadmium;(v) batteries;(vi) polychlorinated biphenyls; and(vii) free-flowing fluids such as oils and lubricants.(F) Recyclers shall ensure that covered television equipment is stored and processed in a manner that minimizes the potential release of any hazardous substance into the environment.(G) Recyclers shall package all covered television equipment designated for reuse in a manner that protects against damage and minimizes the potential for releases of hazardous substances during storage and transportation. Recyclers must package all covered television equipment designated for processing in a manner that minimizes the potential for releases of hazardous substances during storage and transportation.(H) The covered television equipment recycling facility shall operate in accordance with the closure and financial-assurance requirements of §328.5 of this title (relating to Reporting and Recordkeeping Requirements), unless exempted under §328.5 of this title.(2) Manual dismantling and mechanical processing at a covered television equipment recycling facility.(A) Following all efforts to refurbish or reuse covered television equipment, the remaining covered television equipment should be dismantled for useable components or commodities; processed for recycling in accordance with the following conditions; or properly disposed of in accordance with paragraph (1)(B) of this subsection.(i) The facility can show that the material is potentially recyclable and has an economically feasible means of being recycled.(ii) Every six months, the amount of material that is processed for recycling (as defined in §328.2 of this title), or transferred to a different site for recycling, equals at least 50% by weight or volume of the material accumulated at the beginning of the six-month period. "Every six months" starts, for a new recycling facility, 180 days after opening; for an existing recycling facility, 180 days after the facility, under this subchapter, starts providing services to a manufacturer. In calculating the percentage of turnover, the percentage requirements shall be applied to each material of the same type.(B) Recyclers shall have a written, up-to-date plan for responding to and reporting pollutant releases, including accidents, spills, fires, or explosions.(C) Hazardous waste shall be managed, recycled, and disposed of in accordance with Chapter 335 of this title.</content><note type="source"><p>Source Note: The provisions of this §328.193 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.195"><num value="328.195">§328.195</num><heading>Federal Preemption; Expiration</heading><content>(a) If federal law establishes a national program for the collection and recycling of covered television equipment and the commission determines that the federal law substantially meets the purposes of this subchapter, the commission may adopt an agency statement that interprets the federal law as preemptive of this subchapter.(b) This subchapter expires on the date the commission issues a statement under this section.</content><note type="source"><p>Source Note: The provisions of this §328.195 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scJ/s328.197"><num value="328.197">§328.197</num><heading>Amount of Penalties</heading><content>(a) The amount of the penalty assessed against a manufacturer that does not label its covered television equipment or adopt and implement a recovery plan as required by §328.169 of this title (relating to Manufacturer's Labeling Requirement) or §328.173 of this title (relating to Manufacturer's Recovery Plan and Related Responsibilities) as applicable, may not exceed $10,000 for the second violation or $25,000 for each subsequent violation.(b) Except as provided by subsection (a) of this section, the amount of the penalty for a violation of this subchapter may not exceed $1,000 for the second violation or $2,000 for each subsequent violation.(c) A penalty under this section is in addition to any other penalty that may be assessed for a violation of Texas Health and Safety Code, Chapter 361, Subchapter Y or Z.</content><note type="source"><p>Source Note: The provisions of this §328.197 adopted to be effective May 1, 2012, 37 TexReg 2660.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c328/scK"><num value="K">SUBCHAPTER K</num><heading>GOVERNMENTAL ENTITY RECYCLING AND PURCHASING OF RECYCLED MATERIALS</heading><section identifier="/us/state/tx/tac/t30/p1/c328/scK/s328.200"><num value="328.200">§328.200</num><heading>Purpose</heading><content>The purpose of this subchapter is to establish requirements for a governmental entity to create a recycling program and provide preference for purchasing recycled materials.</content><note type="source"><p>Source Note: The provisions of this §328.200 adopted to be effective July 2, 2020, 45 TexReg 4355.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scK/s328.201"><num value="328.201">§328.201</num><heading>Definitions</heading><content>The following terms, when used in this subchapter, shall have the following meanings.(1) Governmental entity--A state agency, state court or judicial agency, a university system or institution of higher education, a county, municipality, school district, or special district.(2) Hardship--A circumstance that causes unreasonable burden on the governmental entity.(3) Recyclable material--A material generated by the entity's operations, including aluminum, steel containers, aseptic packaging and polycoated paperboard cartons, high-grade office paper, and corrugated cardboard.</content><note type="source"><p>Source Note: The provisions of this §328.201 adopted to be effective July 2, 2020, 45 TexReg 4355.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scK/s328.202"><num value="328.202">§328.202</num><heading>General Requirements</heading><content>A governmental entity shall:(1) establish a program for the separation and collection of all recyclable materials generated by the entity's operations;(2) provide procedures for collecting and storing recyclable materials, containers for recyclable materials, and procedures for making contractual or other arrangements with buyers of recyclable materials;(3) evaluate the amount of recyclable material recycled and modify the recycling program as necessary to ensure that all recyclable materials are effectively and practicably recycled; and(4) establish educational and incentive programs to encourage maximum employee participation.</content><note type="source"><p>Source Note: The provisions of this §328.202 adopted to be effective July 2, 2020, 45 TexReg 4355.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scK/s328.203"><num value="328.203">§328.203</num><heading>Purchasing Preference for Recycled Materials</heading><content>A state agency, state court, or judicial agency not subject to Texas Government Code, Title 10, Subtitle D, and a county, municipality, school district, junior or community college, or special district shall give preference in purchasing to products made of recycled materials if the products meet applicable specifications as to quantity and quality and the average price of the product is not more than 10% greater than the price of comparable nonrecycled products. Preferences will be applied in accordance with state procurement statutes and rules.</content><note type="source"><p>Source Note: The provisions of this §328.203 adopted to be effective April 1, 2021, 46 TexReg 2046.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scK/s328.204"><num value="328.204">§328.204</num><heading>Exemptions</heading><content>(a) This subchapter does not apply to:(1) a school district with a student enrollment of less than 10,000 students; and(2) a municipality with a population of less than 5,000, if compliance with this subchapter would create a hardship.(b) A governmental entity may exclude one or more recyclable materials from their program if the commission finds that:(1) a recycling program for a recyclable material is not available through their solid waste provider; or(2) the inclusion of a recyclable material would create a hardship.(c) A governmental entity may request additional consideration from the commission if compliance with this subchapter would create a hardship.</content><note type="source"><p>Source Note: The provisions of this §328.204 adopted to be effective April 1, 2021, 46 TexReg 2046.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c328/scL"><num value="L">SUBCHAPTER L</num><heading>THIRD-PARTY CERTIFICATION SYSTEMS FOR MASS BALANCE ATTRIBUTION</heading><section identifier="/us/state/tx/tac/t30/p1/c328/scL/s328.301"><num value="328.301">§328.301</num><heading>Purpose and Applicability</heading><content>(a) Purpose. The purpose of this subchapter is to:(1) establish guidelines by which a product is eligible to be considered a recycled product;(2) identify what is not eligible to be considered a recycled product; and(3) identify third-party certification systems for mass balance attribution to certify:(A) "Recycled material";(B) "Recycled plastics"; and(C) the portion of the total content of a product that consists of recycled material.(b) Applicability. This subchapter is applicable to determining that a product is eligible to be considered a recycled product and third-party certification systems for mass balance attribution.</content><note type="source"><p>Source Note: The provisions of this §328.301 adopted to be effective November 17, 2024, 49 TexReg 8927.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scL/s328.302"><num value="328.302">§328.302</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter shall have the following meanings, unless the context clearly indicates otherwise.(1) Mass balance attribution--A chain of custody accounting methodology with rules defined by a "Third-party certification system" that enables the attribution of "Recycled material" and "Recycled plastics," as those terms are defined in this section, to a "Recycled product," as described in §328.304 of this title (relating to Recycled Products).(2) Recycled material--Materials, goods, or products that consist of recovered "Recyclable material," as defined in §330.3 of this title (relating to Definitions), materials derived from "Recoverable feedstocks" or "Post-use polymers" as those terms are defined in §330.3 of this title, or postconsumer waste, industrial waste, or hazardous waste which may be used in place of a raw or virgin material in manufacturing a new product or that are certified under a "Third-party certification system" for "Mass balance attribution," as those terms are defined in this section. The term includes "Recycled plastics" as defined in this section.(3) Recycled plastics--Products that are produced from:(A) mechanical recycling of post-use polymers; or(B) nonmechanical recycling of "Recoverable feedstocks" or "Post-use polymers" as those terms are defined in §330.3 of this title, that are certified under a "Third-party certification system" for "Mass balance attribution," as those terms are defined in this section.(4) Recycling--A process by which materials that have served their intended use or are scrapped, discarded, used, surplus, or obsolete are collected, separated, or processed and returned to use in the form of raw materials or feedstocks used in the manufacture of new products. The term includes the conversion of post-use polymers and recoverable feedstocks through pyrolysis, gasification, solvolysis, or depolymerization, but does not include waste-to-energy processes or incineration of plastics in an incinerator as defined in §335.1 of this title (relating to Definitions).(5) Third-party certification system--An international or multinational third-party certification system that consists of a set of rules to implement "Mass balance attribution" approaches for attribution of "Recycled material" to a "Recycled product" as these terms are defined in this section.</content><note type="source"><p>Source Note: The provisions of this §328.302 adopted to be effective November 17, 2024, 49 TexReg 8927.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scL/s328.303"><num value="328.303">§328.303</num><heading>Third-Party Certification Systems for Mass Balance Attribution</heading><content>(a) The commission shall:(1) maintain a list that identifies third-party certification systems for mass balance attribution; and(2) provide a copy of that list to any person on request.(b) Recyclable materials, as defined in §330.3 of this title (relating to Definitions), converted to fuels may not be considered for mass balance attribution for the purpose of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §328.303 adopted to be effective November 17, 2024, 49 TexReg 8927.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c328/scL/s328.304"><num value="328.304">§328.304</num><heading>Recycled Products</heading><content>(a) A product is eligible to be considered a recycled product when it conforms with the minimum content of recycled material as specified in the Comprehensive Procurement Guidelines (CPG) and the Recovered Materials Advisory Notice (RMAN) published by the Environmental Protection Agency (EPA) as described in §328.7(4) of this title (relating to Definitions of Terms and Abbreviations).(b) Manufacturers may use a third-party certification system for mass balance attribution as identified under §328.303 of this title (relating to Third-party Certification Systems for Mass Balance Attribution) to identify the portion of the total content of a product which consists of recycled material and recycled plastics.</content><note type="source"><p>Source Note: The provisions of this §328.304 adopted to be effective November 17, 2024, 49 TexReg 8927.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c329"><num value="329">CHAPTER 329</num><heading>DRILLED OR MINED SHAFTS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c329/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.1"><num value="329.1">§329.1</num><heading>Purpose, Scope, and Applicability</heading><content>(a) The purpose of these sections is to implement the provisions of the Texas Water Code, Chapter 28, as it applies to drilled or mined shafts, consistent with the policies of the Texas Water Code as stated in §1.003, §5.012, and §28.030.(b) This chapter applies to all drilled or mined shafts and associated facilities within the commission's jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §329.1 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.2"><num value="329.2">§329.2</num><heading>Definitions</heading><content>The definitions contained in §28.001 of the Texas Water Code shall apply to this chapter. When used in this chapter, the following words and terms shall have the following meanings, unless the context clearly indicates otherwise:(1) Aquifer--A geologic formation, group of formations, or part of a formation that is water-saturated, water-bearing, and yields water in sufficient quantities to provide a usable supply. Texas aquifers are classified as either major or minor groundwater aquifers and are defined in the most current edition of Texas Department of Water Resources Report No. 238.(2) Area of review--The surface area and the subsurface area extending horizontally not less than 2,000 feet in all directions from the maximum extension of a proposed or existing shaft.(3) Borehole--A drilled penetration or an artificial opening in the ground where the depth is greater than its largest surface dimension and is located within 2,000 feet of a new shaft and penetrates a major or minor aquifer.(4) Casing--Material used to seal off strata at and below the earth's surface, and to maintain the structural stability of shaft opening.(5) Contaminant--Any physical, biological, chemical or radioactive material or matter in water.(6) Formation--A body of soil or rock characterized by a degree of lithologic homogeneity that is prevailingly, but is not necessarily, tabular and is mappable on the earth's surface or traceable in the subsurface.(7) Existing shaft--A shaft constructed before February 4, 1985 (the use of which remains unchanged thereafter), or an abandoned shaft.(8) Formation fluid--Fluid present in a formation under natural conditions.(9) Groundwater--Water below the land surface in a zone of saturation.(10) New shaft--Any shaft which has not been constructed as of February 4, 1985, or any existing shaft or abandoned shaft which is modified or converted to a new purpose for which it was not being used on February 4, 1985.(11) Pollution--The contamination of water or the alteration of the physical, chemical, radioactive, or biological quality of water:(A) that makes it harmful, detrimental, or injurious to humans, animal life, vegetation, or property, or to public health, safety, or welfare; or(B) that impairs the usefulness or the public enjoyment of the water for any lawful and reasonable purpose.(12) Resident inspector--A person or persons who is designated by the executive director to remain on-site to oversee and inspect the ongoing construction and operation of the drilled or mined shaft.(13) Seismic reflection survey (geophysical survey)--Any surface based geophysical method which can accurately measure a response at depth of physical phenomena either artificial and/or natural, directly and/or indirectly, which is related to the underground geological conditions.(14) Shaft--Any vertically oriented excavation, whether constructed by drilling or mining techniques, where the depth of the excavation is greater than its diameter, the excavation penetrates into or through the base of the uppermost water-bearing strata, and the primary purpose of the excavation is the transport of workers and materials to and from a destination, at depth, for purposes of geological studies, access to existing and planned subsurface mine workings, safety, or for ventilation of those workings.(15) Surface facilities--The structures, equipment, appurtenances, and other fixtures associated with the drilled or mined shaft used for storage, processing, or operation, that are above the ground, but not including the shaft collar.(16) Stratum or strata--A bed or layer, regardless of thickness, that consists of generally the same kind of soil, rock or material.(17) Test hole--A drilled and/or cored hole used to determine the type, nature, and characteristics of the subsurface materials and the extent and conditions of the various materials as they exist.(18) Uppermost water-bearing strata--A major or minor aquifer as recognized and described in the most current edition of Texas Department of Water Resources Report 238.(19) Well--An augered, bored, drilled, or driven penetration or an artificial opening in the ground made by digging, jetting, or some other method, where the depth of the well is greater than its largest surface dimension, but the term does not include any surface pit, surface excavation, drilled or mined shaft, or natural depression.</content><note type="source"><p>Source Note: The provisions of this §329.2 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.3"><num value="329.3">§329.3</num><heading>Severability</heading><content>If any provision of this chapter, or the application of such provision to any person or circumstance, is held invalid, the remainder of this chapter, or the application of such provision to persons or circumstances other than those as to which it is held invalid shall not be affected thereby.</content><note type="source"><p>Source Note: The provisions of this §329.3 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.4"><num value="329.4">§329.4</num><heading>Construction and Use Prohibited</heading><content>(a) Unless excluded under subsection (b) of this section, the construction, use or operation of a new shaft is prohibited unless authorized by permit of the commission.(b) The following penetrations are not within the scope of subsection (a) of this section:(1) penetrations whose primary purpose is the production of ground water;(2) penetrations or boreholes authorized by the commission under the underground injection control program;(3) shafts incident to surface mines for oil and gas, iron ore, lignite, coal or uranium recovery regulated by the Railroad Commission of Texas;(4) sanitary sewer lift stations and otherwise approved water and sewer collection, storage and distribution structures;(5) penetrations authorized by the Texas Railroad Commission of less than 36 inch diameter whose primary purpose is the ventilation of underground workings or structures;(6) penetrations authorized by the commission or the Railroad Commission of Texas whose purpose is the transmission of fuels, concrete slurries, muds, electrical lines, communications, wires or structures, or other utility transmissions, or bulk materials to, or recovery from underground storage facilities or mine workings;(7) penetrations which would otherwise be defined as shafts, but which, due to local conditions, do not penetrate into or through a major or minor aquifer; and(8) existing shafts.(c) The receipt, storage, and disposal on site of any wastes not expressly authorized by permit and not generated by construction is prohibited.</content><note type="source"><p>Source Note: The provisions of this §329.4 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.5"><num value="329.5">§329.5</num><heading>Pre-permit Determination</heading><content>(a) Prior to submission of an application for permit, persons considering the construction of a new shaft which may be defined as a shaft subject to this chapter must contact the executive director and obtain a determination whether or not the proposed activity is subject to this chapter.(b) The following information must be submitted for this determination:(1) the proposed or existing location of the shaft;(2) the activity proposed, and if applicable, the existing activity; and(3) the proposed or, if applicable, existing depth of the shaft.(c) An applicant may provide information supporting its position that the new or existing shaft, due to local conditions, will not penetrate into or through an uppermost water-bearing strata for the purposes of this determination.</content><note type="source"><p>Source Note: The provisions of this §329.5 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.6"><num value="329.6">§329.6</num><heading>Pre-application Activities</heading><content>(a) Persons who are determined to be proposing a new shaft subject to this chapter must obtain executive director approval of plans for the drilling of an engineering design test hole on center or offset to the shaft and a proposed seismic reflection survey (geophysical survey) for the purposes of site characterization, shaft and seal design, and shaft decommissioning prior to submitting an application for permit. Plans submitted for approval shall contain specific information which will address the following:(1) test hole-location, drilling, completion, testing, closure, surface cleanup, and mud pits; and(2) seismic survey-location and number of lines, velocity control and accuracy of resolution.(b) An applicant may provide results of previous exploratory drilling and geophysical surveys to support its position that the engineering design test hole and seismic reflection survey (geophysical survey) are not necessary.(c) After an appropriate review of the matters submitted under subsections (a) and (b) of this section, the executive director:(1) may allow the results of previous exploratory drilling and geophysical exploration to be substituted for the engineering design test hole and seismic reflection survey;(2) will determine the requirements of §329.9 of this title (relating to Procedures for Application) and the area of review;(3) will determine the fee necessary to compensate the Texas Water Commission for reviewing the application; and(4) may require mechanical integrity investigation for existing shafts which may be modified or converted to a new purpose.(d) Persons required to drill an engineering design test hole and/or conduct a seismic reflection survey must first obtain the written approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §329.6 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.7"><num value="329.7">§329.7</num><heading>Test Hole and Seismic Reflection Survey</heading><content>(a) A test hole will not be required to be drilled in conjunction with modification or conversion of use of an existing or abandoned shaft.(b) Current commission and the Railroad Commission of Texas regulations shall be used to determine requirements for the mud pit construction, surface cleanup, and test hole closure requirements.(c) A seismic reflection survey (geophysical survey) will not be required in conjunction with modification or conversion of use of an existing or abandoned shaft.</content><note type="source"><p>Source Note: The provisions of this §329.7 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.8"><num value="329.8">§329.8</num><heading>Application for Permit</heading><content>(a) A technical report prepared either by a registered professional engineer, or by a qualified person who is competent and experienced in the field to which the application relates or who is thoroughly familiar with the operation or project for which the application is made, shall be submitted as part of the application for new permit. At a minimum, the report shall include the following:(1) a general description and intended purpose of all facilities and systems proposed to be used for, or in connection with, construction and operation of a shaft by mining or drilling;(2) a surveyor's plat showing the exact location from property lines and survey lines, and giving the latitude and longitude of the shaft and a map(s) showing the location of the shaft for which a permit is sought, and the applicable area of review. Within the area of review, the map(s) must show the number, name, and location of all boreholes and other pertinent surface features;(3) a tabulation of data of all boreholes within the applicable area of review. Such data shall include a description of each penetration's type, construction, date drilled, location, depth, record of plugging and completion, and any additional information the executive director may require;(4) maps and cross-sections, as necessary, indicating the general vertical and lateral limits of aquifers within the applicable area of review, their positions relative to the formation, or formations, or stratigraphic units the shaft is constructed to reach;(5) the text of the report shall discuss the geology, hydrogeology, and groundwater use and development within the applicable area of review; and with respect to the shaft: design, construction, sealing, decommissioning, mechanical integrity, operating procedures and monitoring.(b) After an appropriate review, the executive director may modify the requirements for application of this section if he finds that additional information is required to evaluate the shaft, or that information required herein is not reasonably available and is not necessary for a full evaluation of the application.</content><note type="source"><p>Source Note: The provisions of this §329.8 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.9"><num value="329.9">§329.9</num><heading>Procedures for Application</heading><content>(a) An application is administratively complete when received with all the information as required by Chapter 305 of this title (relating to Consolidated Permit), as appropriate, and this chapter.(b) Application for a drilled or mined shaft permit shall be submitted with six copies of the completed application, including all reports and statements.(c) The following shall be included in an application for a drilled or mined shaft permit:(1) the manner in which financial assurances will be attained;(2) an environmental assessment or environmental impact statement, if required by the Texas Water Code, §28.038;(3) a decommissioning and closure plan;(4) a fee, based on estimated cost of application processing and review, of not less than $10,000, which shall include, but is not limited to, consultants' fees, lab work, personnel salaries, support services, travel expenses, computer time, and informational services;(5) a letter from the Railroad Commission of Texas stating that drilling or mining of the proposed shaft and use of the proposed shaft will not endanger or injure any oil or gas formation or significantly limit the potential for future recovery of or exploration for oil or gas; and(6) a statement of the current status of any litigation involving the project or proposed siting of the shaft.(d) The executive director will submit to the Railroad Commission of Texas, Texas Department of Health, Texas Air Control Board, Texas Department of Parks and Wildlife and to the Commissioners Court of the affected county a copy of the application including all amendments.(e) The provisions of Chapter 281 of this title (relating to Applications Processing) do not apply to the processing of new shaft applications under these sections.</content><note type="source"><p>Source Note: The provisions of this §329.9 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.10"><num value="329.10">§329.10</num><heading>Permit Required</heading><content>(a) All shafts subject to this subchapter shall be specifically authorized by permit. Shafts serving the same underground working, or built as part of a single comprehensive ore body exploration or evaluation program, may be included in one permit. Additional shafts to be added after the permit is issued may be authorized by permit amendment after a demonstration as in §329.11(b) of this title (relating to Construction Standards for Shafts).(b) A permit shall include terms and conditions reasonably necessary to protect the major and minor aquifers from pollution. The permit shall include requirements regarding the construction, operation, and decommissioning of a new shaft and corrective action, if necessary, to prevent pollution resulting from inadequately constructed, completed, and abandoned boreholes within the area of review. In the event that, after construction of a new shaft has commenced, evidence indicates that a well within the area of review of a shaft might pose a hazard to a major or minor aquifer, the executive director may prescribe a corrective action plan and compliance schedule to remedy such hazard as a condition for continued construction, use, or operation.</content><note type="source"><p>Source Note: The provisions of this §329.10 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.11"><num value="329.11">§329.11</num><heading>Construction Standards for Shafts</heading><content>(a) The provisions of this subchapter apply to new shafts within the commission's jurisdiction.(b) All shafts shall be constructed to prevent migration of fluids that may cause or allow the pollution of aquifers. Construction materials used in each shaft shall be designed for the life expectancy of the shaft.(c) Appropriate surveys, logs and other tests shall be conducted during the construction of shafts. All surveys, logs and tests shall be interpreted by qualified persons.(d) Any proposed changes or alterations to construction plans after permit issuance shall be filed with the executive director and approval obtained before incorporating such changes.</content><note type="source"><p>Source Note: The provisions of this §329.11 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.12"><num value="329.12">§329.12</num><heading>Resident Inspector</heading><content>The executive director may designate a resident inspector to oversee all phases of shaft activities. The resident inspector shall monitor compliance with the terms of the permit for all testing, construction, completion, and operation of the shaft and report to the executive director.</content><note type="source"><p>Source Note: The provisions of this §329.12 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.13"><num value="329.13">§329.13</num><heading>Operating Standards</heading><content>(a) The construction, use, and operation of a new shaft shall be as authorized by the permit.(b) All shafts must have mechanical integrity.(1) A lined shaft or lined portion of a shaft has mechanical integrity if there is no significant leak or physical deterioration in the casing, liners, and seals, and if there is no detectable fluid movement through vertical fluid channels adjacent to the shaft which could cause pollution of an aquifer.(2) An unlined shaft, or unlined portion of a shaft, has mechanical integrity if there is no detectable deterioration of the wallrock which could cause pollution of an aquifer.(3) In the event that a lined shaft, unlined shaft, or portion of an unlined shaft may have inflows of ground water, the executive director may require a shaft and mine water management plan be submitted as part of the shaft permit application.(4) Mechanical integrity of the shaft (wallrock or casing, liners, and seals) must be demonstrated as required by the permit, during the life of the shaft, and shall be accomplished by a method approved by the executive director.(c) Shafts lacking mechanical integrity shall undertake corrective maintenance actions.(1) The permittee shall notify and obtain the approval of the executive director before commencing any corrective maintenance that is necessitated by failure to achieve or maintain mechanical integrity.(2) The notification shall be in writing and shall include plans for the proposed work. The executive director may grant an exception to the requirement for prior written notification when immediate action is required.</content><note type="source"><p>Source Note: The provisions of this §329.13 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.14"><num value="329.14">§329.14</num><heading>Monitoring and Reporting Standards</heading><content>(a) The permittee shall submit daily construction chronology reports to the executive director and to the resident inspector, if applicable, providing data for each day during the drilling or mining, and casing or lining of the shaft. The data shall be presented in tabular form and shall report date, thickness and lithology penetrated, material settings and volumes, and problems.(b) Within 90 days after the completion of the shaft, the permittee shall submit an engineering drawing showing the as built construction details of the shaft, liners, depth, thickness, and lithology of the rock units penetrated in constructing the shaft.(c) The permittee shall, prior to commencing construction, provide written notice to the executive director that a copy of the permit has been filed with the commissioners court for the county where the shaft is located.(d) The permittee shall notify the executive director in writing of the anticipated first date when the shaft will be used or operated for its stated purpose at least 30 days prior to commencing use of the shaft. Compliance with all pre-operation terms of the permit must occur prior to beginning operations.(e) The permittee shall notify the executive director within 24 hours of the discovery of any unplanned leakage or other failure of the shaft or associated chambers.(f) Within 90 days after the completion of a corrective maintenance action, a report shall be filed with the executive director providing the reason for the shaft corrective maintenance action and the details of all work performed and results of remedial action.</content><note type="source"><p>Source Note: The provisions of this §329.14 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.15"><num value="329.15">§329.15</num><heading>Surface Facilities</heading><content>Surface facilities must be constructed, maintained, and operated in compliance with applicable permits and chapters governing that facility.</content><note type="source"><p>Source Note: The provisions of this §329.15 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.16"><num value="329.16">§329.16</num><heading>Certification of Construction and Completion</heading><content>Prior to commencing operations, the permittee must certify that the shaft was constructed and completed in compliance with permit requirements.</content><note type="source"><p>Source Note: The provisions of this §329.16 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.17"><num value="329.17">§329.17</num><heading>Additional Requirements</heading><content>(a) The permittee shall keep complete and accurate records of:(1) all construction records;(2) mechanical integrity testing;(3) geotechnical testing;(4) water level and water quality testing;(5) record of post-construction operations;(6) corrective maintenance actions; and(7) any additional information that the executive director determines might reasonably affect the construction and operation of the shaft.(b) All records or copies of all records shall be filed on-site and made available for review upon request by a representative of the commission.(c) The permittee shall retain, for the lifetime of the shaft and for at least five years after decommissioning, records of all information concerning the construction, use, and operation of the shaft.(d) The permittee may be required, prior to commencing operations, to secure and maintain a performance bond or other equivalent form of financial assurance or guarantee, approved by the executive director, to assure:(1) the costs to the commission of monitoring and of on-site, full-time surveillance; and(2) the cost to ensure the safe decommissioning and closure of the shaft.(e) A permittee may satisfy the conditions of subsection (d) of this section by demonstrating as required by §305.153 of this title (relating to Financial Responsibility).</content><note type="source"><p>Source Note: The provisions of this §329.17 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.18"><num value="329.18">§329.18</num><heading>Decommissioning</heading><content>Shaft decommissioning and closure shall be in accordance with plans and specifications approved by the executive director. Decommissioning seals shall be placed in the shaft so as to prevent the migration of fluids into a major or minor aquifer. Shaft seal mix designs shall be compatible with existing lining, if applicable, and adjacent strata.</content><note type="source"><p>Source Note: The provisions of this §329.18 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c329/sc/s329.19"><num value="329.19">§329.19</num><heading>Appendix A</heading><content>Appendix A is a flow diagram of the procedures to obtain authorization for a drilled or mined shaft.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §329.19 adopted to be effective May 13, 1986, 11 TexReg 1978.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c330"><num value="330">CHAPTER 330</num><heading>MUNICIPAL SOLID WASTE</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL INFORMATION</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scA/s330.1"><num value="330.1">§330.1</num><heading>Purpose and Applicability</heading><content>(a) The regulations promulgated in this chapter cover aspects of municipal solid waste (MSW) management and air emissions from MSW landfills and transfer stations under the authority of the commission and are based primarily on the stated purpose of Texas Health and Safety Code, Chapter 361 and Chapter 382. The provisions of this chapter apply to any person as defined in §3.2 of this title (relating to Definitions) involved in any aspect of the management and control of MSW and MSW facilities including, but not limited to, storage, collection, handling, transportation, processing, and disposal. Furthermore, these regulations apply to any person that by contract, agreement, or otherwise arranges to process, store, or dispose of, or arranges with a transporter for transport to process, store, or dispose of, solid waste owned or possessed by the person, or by any other person or entity. The comprehensive rule revisions in this chapter as adopted in 2006 (2006 Revisions) are effective 20 days after they are filed with the Office of the Secretary of State.(1) Permits and registrations, issued by the commission and it predecessors, that existed before the 2006 Revisions became effective, remain valid until suspended or revoked except as expressly provided otherwise in this chapter. Facilities may operate under existing permits and registrations subject to: requirements in the 2006 Revisions, which expressly supersede provisions contained in existing authorizations or require revisions to existing authorizations; and those requirements mandated by the United States Environmental Protection Agency in 40 Code of Federal Regulations (CFR) Parts 257 and 258, as amended, which implement certain requirements of Resource Conservation and Recovery Act, Subtitle D. For those federally mandated requirements and the equivalent state requirements, the effective dates listed in 40 CFR Parts 257 and 258, as amended, shall apply. For those federally mandated requirements, the permittee is under an obligation to apply for a permit change in accordance with §305.62 of this title (relating to Amendments) or §305.70 of this title (relating to Municipal Solid Waste Permit and Registration Modifications), as applicable, to incorporate the required standard. The application shall be submitted no later than six months from the effective date of the required standard.(2) Applications for new permits and major amendments to existing permits that are administratively complete and registration applications for which the executive director has completed a technical review, as of the effective date of the 2006 Revisions, shall be considered under the former rules of this chapter unless the applicant elects otherwise. Existing authorizations are subject to the 2006 Revisions, which expressly supersede provisions contained in existing authorizations or require modifications of existing authorizations regardless of whether a major amendment is being considered for the same facility under the former rules. For new permits and major amendments to increase solid waste disposal capacity, only complete applications (Parts I - IV), which are submitted and declared administratively complete before the effective date of the 2006 Revisions, may be considered under existing Chapter 330 rules. Such applications are not subject to §305.127(4)(B) of this title (relating to Conditions to be Determined for Individual Permits) and the owner or operator must submit the modifications required by the 2006 Revisions within one year after the commission's decision on the application has become final and appealable, unless a longer period of time is specified in the rules.(3) Authorizations, other than permits and registrations, that existed before the 2006 Revisions became effective shall comply with the 2006 Revisions within 120 days of the 2006 Revisions becoming effective unless expressly provided otherwise in this chapter. These authorizations include notifications, exemptions, permits by rule, and registrations by rule.(4) Authorizations, other than permits and registrations, that had not been claimed or did not exist before the 2006 Revisions became effective shall comply with the 2006 Revisions.(5) Applications for modifications or for amendments that do not increase solid waste disposal capacity that are filed before the 2006 Revisions become effective, or filed within 180 days after the 2006 Revisions become effective, are subject to the former rules. Such applications are not subject to §305.127(4)(B) of this title, and the owner or operator must submit the modifications required by the 2006 Revisions within 180 days after the effective date of the 2006 Revisions, unless a longer period of time is specified in the rules.(b) The commission at its discretion, may include one or more different types of units in a single permit if the units are located at the same facility with the exception of a facility authorized by an MSW permit by rule. Persons shall seek separate authorizations at a facility that qualifies for an MSW permit by rule.(c) This chapter does not apply to any person that prepares sewage sludge or domestic septage, fires sewage sludge in a sewage sludge incinerator, applies sewage sludge or domestic septage to the land, or to the owner/operator of a surface disposal site as applicable under Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation); to sewage sludge or domestic septage applied to the land or placed on a surface disposal site, to sewage sludge fired in a sewage sludge incinerator, to land where sewage sludge or domestic septage is applied to a surface disposal site or to a sewage sludge incinerator as applicable under Chapter 312 of this title; any person that transports sewage sludge, water treatment sludge, domestic septage, chemical toilet waste, grit trap waste, or grease trap waste; to any person that applies water treatment sludge for disposal in a land application unit, as defined in §312.121 of this title (relating to Purpose and Applicability) to water treatment sludge that is disposed of in a land application unit, as defined in §312.121 of this title. Persons managing such wastes shall comply with the requirements of Chapter 312 of this title.(d) This chapter does not apply to any person that composts MSW in accordance with the requirements of Chapter 332 of this title (relating to Composting), except for those persons that must apply for a permit in accordance with §332.3(a) of this title (relating to Applicability). Those persons that must submit a permit application for a compost operation shall follow the applicable requirements of Subchapter B of this chapter (relating to Permit and Registration Application Procedures).(e) This chapter does not apply to any person that manages medical waste in accordance with the requirements of Chapter 326 of this title (relating to Medical Waste Management). Persons disposing of medical waste at municipal solid waste landfills shall comply with applicable provisions of this chapter. The medical waste provisions being relocated from this chapter to Chapter 326 of this title will remain in effect and continue to apply to permits, registrations, and registrations by rule issued under this chapter until the later of two years from the effective date of Chapter 326 of this title or until a final decision is made on a timely request for an authorization to be updated to comply with Chapter 326 of this title. Permits, registrations, and registrations by rule issued under the existing Chapter 330 rules must be updated by filing a new application within two years or upon renewal to comply with Chapter 326 of this title. The executive director is authorized to extend this deadline based on an authorized entity making a request supported by good cause. A person who has an application for the management of medical waste pending before the effective date of Chapter 326 of this title shall be considered under the former Chapter 330 rules unless the applicant elects otherwise.</content><note type="source"><p>Source Note: The provisions of this §330.1 adopted to be effective October 9, 1993, 18 TexReg 4023; amended to be effective March 27, 2006, 31 TexReg 2502; amended to be effective May 26, 2016, 41 TexReg 3735; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scA/s330.3"><num value="330.3">§330.3</num><heading>Definitions</heading><content>Unless otherwise noted, all terms contained in this section are defined by their plain meaning. This section contains definitions for terms that appear throughout this chapter. Additional definitions may appear in the specific section to which they apply. The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.(1) 100-year flood--A flood that has a 1.0% or greater chance of recurring in any given year or a flood of a magnitude equaled or exceeded once in 100 years on the average over a significantly long period.(2) Active disposal area--All landfill working faces and areas covered with daily and alternative daily cover.(3) Active life--The period of operation beginning with the initial receipt of solid waste and ending at certification/completion of closure activities in accordance with §§330.451, 330.453, 330.455, 330.457, and 330.459 of this title (relating to Applicability; Closure Requirements for Municipal Solid Waste Landfill Units that Stopped Receiving Waste Prior to October 9, 1991, Type IV Landfills, and Municipal Solid Waste Sites; Closure Requirements for Municipal Solid Waste Landfill Units that Received Waste on or after October 9, 1991, but Stopped Receiving Waste Prior to October 9, 1993; Closure Requirements for Municipal Solid Waste Landfill Units that Receive Waste on or after October 9, 1993; and Closure Requirements for Municipal Solid Waste Storage and Processing Units).(4) Active portion--That part of a facility or unit that has received or is receiving wastes and that has not been closed in accordance with §§330.451, 330.453, 330.455, 330.457, and 330.459 of this title (relating to Applicability; Closure Requirements for Municipal Solid Waste Landfill Units that Stopped Receiving Waste Prior to October 9, 1991, Type IV Landfills, and Municipal Solid Waste Sites; Closure Requirements for Municipal Solid Waste Landfill Units that Received Waste on or after October 9, 1991, but Stopped Receiving Waste Prior to October 9, 1993; Closure Requirements for Municipal Solid Waste Landfill Units that Receive Waste on or after October 9, 1993; and Closure Requirements for Municipal Solid Waste Storage and Processing Units).(5) Advanced recycling facility--A manufacturing facility that receives, stores, and converts post-use polymers and recoverable feedstocks using advanced recycling technologies and processes including pyrolysis, gasification, solvolysis, and depolymerization. An advanced recycling facility is not a solid waste facility, final disposal facility, waste-to-energy facility, or incinerator.(6) Airport--A public-use airport open to the public without prior permission and without restrictions within the physical capacities of available facilities.(7) Ancillary equipment--Any device that is used to distribute, meter, or control the flow of solid waste from its point of generation to a storage or processing tank(s), between solid waste storage and processing tanks to a point of disposal on-site, or to a point of shipment for disposal off-site. Such devices include, but are not limited to, piping, fittings, flanges, valves, and pumps.(8) Animal crematory--A facility for the incineration of animal remains that meets the following criteria:(A) control of combustion air to maintain adequate temperature for efficient combustion;(B) containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and(C) control of the emission of the combustion products.(9) Aquifer--A geological formation, group of formations, or portion of a formation capable of yielding significant quantities of groundwater to wells or springs.(10) Areas susceptible to mass movements--Areas of influence (i.e., areas characterized as having an active or substantial possibility of mass movement) where the movement of earth material at, beneath, or adjacent to the municipal solid waste landfill unit, because of natural or man-induced events, results in the downslope transport of soil and rock material by means of gravitational influence. Areas of mass movement include, but are not limited to, landslides, avalanches, debris slides and flows, soil fluctuation, block sliding, and rock fall.(11) Asbestos-containing materials--Include the following. (A) Category I nonfriable asbestos-containing material means asbestos-containing packings, gaskets, resilient floor covering, and asphalt roofing products containing more than 1.0% asbestos as determined using the method specified in Appendix E to Subpart E of 40 Code of Federal Regulations (CFR) Part 763, §1, Polarized Light Microscopy.(B) Category II nonfriable asbestos-containing material means any material, excluding Category I nonfriable asbestos-containing material, containing more than 1.0% asbestos as determined using the methods specified in Appendix E to Subpart E of 40 CFR Part 763, §1, Polarized Light Microscopy, that, when dry, cannot be crumbled, pulverized, or reduced to powder by hand pressure.(C) Friable asbestos-containing material means any material containing more than 1.0% asbestos that, when dry, can be crumbled, pulverized, or reduced to powder by hand pressure.(D) Nonfriable asbestos-containing material means any material containing more than 1.0% asbestos that, when dry, cannot be crumbled, pulverized, or reduced to powder by hand pressure.(12) ASTM--The American Society for Testing and Materials. (13) Battery--An electrochemical device that generates electric current by converting chemical energy. Its essential components are positive and negative electrodes made of more or less electrically conductive materials, a separate medium, and an electrolyte. There are four major types:(A) primary batteries (dry cells);(B) storage or secondary batteries;(C) nuclear and solar cells or energy converters; and(D) fuel cells.(14) Battery acid (also known as electrolyte acid)--A solution of not more than 47% sulfuric acid in water suitable for use in storage batteries, which is water white, odorless, and practically free from iron.(15) Battery retailer--A person or business location that sells lead-acid batteries to the general public, without restrictions to limit purchases to institutional or industrial clients only.(16) Battery wholesaler--A person or business location that sells lead-acid batteries directly to battery retailers, to government entities by contract sale, or to large-volume users, either directly or by contract sale.(17) Bird hazard--An increase in the likelihood of bird/aircraft collisions that may cause damage to an aircraft or injury to its occupants.(18) Boiler--An enclosed device using controlled flame combustion and having the following characteristics.(A) The unit must have physical provisions for recovering and exporting thermal energy in the form of steam, heated fluids, or heated gases.(B) The unit's combustion chamber and primary energy recovery section(s) must be of integral design. To be of integral design, the combustion chamber and the primary energy recovery section(s) (such as waterwalls and superheaters) must be physically formed into one manufactured or assembled unit. A unit in which the combustion chamber and the primary energy recovery section(s) are joined only by ducts or connections carrying flue gas is not integrally designed; however, secondary energy recovery equipment (such as economizers or air preheaters) need not be physically formed into the same unit as the combustion chamber and the primary energy recovery section. The following units are not precluded from being boilers solely because they are not of integral design:(i) process heaters (units that transfer energy directly to a process stream); and(ii) fluidized bed combustion units.(C) While in operation, the unit must maintain a thermal energy recovery efficiency of at least 60%, calculated in terms of the recovered energy compared with the thermal value of the fuel.(D) The unit must export and utilize at least 75% of the recovered energy, calculated on an annual basis. In this calculation, no credit shall be given for recovered heat used internally in the same unit. Examples of internal use are the preheating of fuel or combustion air, and the driving of induced or forced draft fans or feedwater pumps.(19) Brush--Cuttings or trimmings from trees, shrubs, or lawns and similar materials.(20) Buffer zone--A zone free of municipal solid waste processing and disposal activities within and adjacent to the facility boundary on property owned or controlled by the owner or operator.(21) Citizens' collection station--A facility established for the convenience and exclusive use of residents (not commercial or industrial users or collection vehicles), except that in small communities where regular collections are not available, small quantities of commercial waste may be deposited by the generator of the waste. The facility may consist of one or more storage containers, bins, or trailers.(22) Class 1 wastes--Any industrial solid waste or mixture of industrial solid wastes that because of its concentration, or physical or chemical characteristics is toxic, corrosive, flammable, a strong sensitizer or irritant, a generator of sudden pressure by decomposition, heat, or other means, or may pose a substantial present or potential danger to human health or the environment when improperly processed, stored, transported, or disposed of or otherwise managed, as further defined in §335.505 of this title (relating to Class 1 Waste Determination).(23) Class 2 wastes--Any individual solid waste or combination of industrial solid waste that are not described as Hazardous, Class 1, or Class 3 as defined in §335.506 of this title (relating to Class 2 Waste Determination).(24) Class 3 wastes--Inert and essentially insoluble industrial solid waste, usually including, but not limited to, materials such as rock, brick, glass, dirt, and certain plastics and rubber, etc., that are not readily decomposable, as further defined in §335.507 of this title (relating to Class 3 Waste Determination).(25) Collection--The act of removing solid waste (or materials that have been separated for the purpose of recycling) for transport elsewhere.(26) Collection system--The total process of collecting and transporting solid waste. It includes storage containers; collection crews, vehicles, equipment, and management; and operating procedures. Systems are classified as municipal, contractor, or private.(27) Commence physical construction--The initiation of physical on-site construction on a site for which an application to authorize a municipal solid waste management unit is pending, the construction of which requires approval of the commission. Construction of actual waste management units and necessary appurtenances requires approval of the commission, but other features not specific to waste management are allowed without commission approval.(28) Commercial solid waste--All types of solid waste generated by stores, offices, restaurants, warehouses, and other nonmanufacturing activities, excluding residential and industrial wastes.(29) Compacted waste--Waste that has been reduced in volume by a collection vehicle or other means including, but not limited to, dewatering, composting, incineration, and similar processes, with the exception of waste that has been reduced in volume by a small, in-house compactor device owned and/or operated by the generator of the waste.(30) Composite liner--A liner system consisting of two components: the upper component must consist of a minimum 30-mil geomembrane liner or minimum 60-mil high-density polyethylene, and the lower component must consist of at least a two-foot layer of re-compacted soil deposited in lifts with a hydraulic conductivity of no more than 1 x 10-7 centimeters/second. The geomembrane liner component must be installed in direct and uniform contact with the compacted soil component.(31) Compost--The stabilized product of the decomposition process that is used or sold for use as a soil amendment, artificial top soil, growing medium amendment, or other similar uses.(32) Composting--The controlled biological decomposition of organic materials through microbial activity.(33) Conditionally exempt small-quantity generator--A conditionally exempt small quantity generator (CESQG) is a very small quantity generator (VSQG) as defined in this section that meets the independent requirements and the conditions for exemption for a VSQG under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste). A reference to a conditionally exempt small quantity generator, "CESQG", or a person who generates no more than 100 kilograms (220 pounds) of non-acute hazardous waste or no more than 1 kilogram (2.2 pounds) of acute hazardous waste in a calendar month is a reference to a VSQG.(34) Construction or demolition waste--Waste resulting from construction or demolition projects; includes all materials that are directly or indirectly the by-products of construction work or that result from demolition of buildings and other structures, including, but not limited to, paper, cartons, gypsum board, wood, excelsior, rubber, and plastics.(35) Container--Any portable device in which a material is stored, transported, or processed.(36) Contaminate--To alter the chemical, physical, biological, or radiological integrity of ground or surface water by man-made or man-induced means.(37) Contaminated water--Leachate, gas condensate, or water that has come into contact with waste.(38) Controlled burning--The combustion of solid waste with control of combustion air to maintain adequate temperature for efficient combustion; containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and control of the emission of the combustion products, i.e., incineration in an incinerator.(39) Depolymerization--A manufacturing process through which post-use polymers are broken down into:(A) smaller molecules, including monomers and oligomers; or(B) raw materials, intermediate products, or final products, including plastic feedstocks, chemical feedstocks, basic and unfinished chemicals, waxes, lubricants, or coatings; and(C) does not include crude oil, diesel, gasoline, diesel blend stock, gasoline blend stock, home heating oil, ethanol, or another fuel.(40) Discard--To abandon a material and not use, re-use, reclaim, or recycle it. A material is abandoned by being disposed of; burned or incinerated (except where the material is being burned as a fuel for the purpose of recovering usable energy); or physically, chemically, or biologically treated (other than burned or incinerated) in lieu of or prior to being disposed.(41) Discharge--Includes deposit, conduct, drain, emit, throw, run, allow to seep, or otherwise release, or to allow, permit, or suffer any of these acts or omissions.(42) Discharge of dredged material--Any addition of dredged material into the waters of the United States. The term includes, without limitation, the addition of dredged material to a specified disposal site located in waters of the United States and the runoff or overflow from a contained land or water disposal area.(43) Discharge of fill material--The addition of fill material into waters of the United States. The term generally includes placement of fill necessary to the construction of any structure in waters of the United States: the building of any structure or improvement requiring rock, sand, dirt, or other inert material for its construction; the building of dams, dikes, levees, and riprap.(44) Discharge of pollutant--Any addition of any pollutant to navigable waters from any point source or any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source.(45) Displacement--The measured or estimated distance between two formerly adjacent points situated on opposite walls of a fault (synonymous with net slip).(46) Disposal--The discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste (whether containerized or uncontainerized) into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwater.(47) Dredged material--Material that is excavated or dredged from waters of the United States.(48) Drinking-water intake--The point at which water is withdrawn from any water well, spring, or surface water body for use as drinking water for humans, including standby public water supplies. (49) Elements of nature--Rainfall, snow, sleet, hail, wind, sunlight, or other natural phenomenon.(50) Endangered or threatened species--Any species listed as such under the Federal Endangered Species Act, §4, 16 United States Code, §1536, as amended or under the Texas Endangered Species Act.(51) Essentially insoluble--Any material that, if representatively sampled and placed in static or dynamic contact with deionized water at ambient temperature for seven days, will not leach any quantity of any constituent of the material into the water in excess of the maximum contaminant levels in 40 Code of Federal Regulations (CFR) Part 141, Subparts B and G, and 40 CFR Part 143 for total dissolved solids.(52) Existing municipal solid waste landfill unit--Any municipal solid waste landfill unit that received solid waste as of October 9, 1993.(53) Experimental project--Any new proposed method of managing municipal solid waste, including resource and energy recovery projects, that appears to have sufficient merit to warrant commission approval.(54) Facility--All contiguous land and structures, other appurtenances, and improvements on the land used for the storage, processing, or disposal of solid waste.(55) Fault--A fracture or a zone of fractures in any material along which strata, rocks, or soils on one side have been displaced with respect to those on the other side.(56) Fill material--Any material used for the primary purpose of filling an excavation.(57) Floodplain--The lowland and relatively flat areas adjoining inland and coastal waters, including flood-prone areas of offshore islands, that are inundated by the 100-year flood.(58) Garbage--Solid waste consisting of putrescible animal and vegetable waste materials resulting from the handling, preparation, cooking, and consumption of food, including waste materials from markets, storage facilities, handling, and sale of produce and other food products.(59) Gas condensate--The liquid generated as a result of any gas recovery process at a municipal solid waste facility.(60) Gasification--A process through which recoverable feedstocks are heated and converted into a fuel-gas mixture in an oxygen-deficient atmosphere and the mixture is converted into valuable raw materials, valuable intermediate products, or valuable final products, which include plastic monomers, chemicals, waxes, lubricants, or chemical feedstocks; and do not include crude oil, diesel, gasoline, diesel blend stock, gasoline blend stock, home heating oil, ethanol, or another fuel. The term does not include incineration.(61) Generator--Any person, by site or location, that produces solid waste to be shipped to any other person, or whose act or process produces a solid waste or first causes it to become regulated. (62) Grease trap waste--Material collected in and from a grease interceptor in the sanitary sewer service line of a commercial, institutional, or industrial food service or processing establishment, including the solids resulting from dewatering processes.(63) Grit trap waste--Grit trap waste includes waste from interceptors placed in the drains prior to entering the sewer system at maintenance and repair shops, automobile service stations, car washes, laundries, and other similar establishments.(64) Groundwater--Water below the land surface in a zone of saturation.(65) Hazardous waste--Any solid waste identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 United States Code, §§6901 et seq. , as amended.(66) Holocene--The most recent epoch of the Quaternary Period, extending from the end of the Pleistocene Epoch to the present.(67) Household waste--Any solid waste (including garbage, trash, and sanitary waste in septic tanks) derived from households (including single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas); does not include brush.(68) Incinerator--Any enclosed device that:(A) uses controlled flame combustion and neither meets the criteria for classification as a boiler, sludge dryer, or carbon regeneration unit, nor is listed as an industrial furnace, as defined in §335.1 of this title (relating to Definitions); or(B) meets the definition of infrared incinerator or plasma arc incinerator.(69) Industrial solid waste--Solid waste resulting from or incidental to any process of industry or manufacturing, or mining or agricultural operations.(70) Inert material--A natural or man-made nonputrescible, nonhazardous material that is essentially insoluble, usually including, but not limited to, soil, dirt, clay, sand, gravel, brick, glass, concrete with reinforcing steel, and rock.(71) Infrared incinerator--Any enclosed device that uses electric-powered resistance heaters as a source of radiant heat followed by an afterburner using controlled flame combustion and is not listed as an industrial furnace as defined in §335.1 of this title (relating to Definitions).(72) Injection well--A well into which fluids are injected. (73) In situ--In natural or original position.(74) Karst terrain--An area where karst topography, with its characteristic surface and/or subterranean features, is developed principally as the result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physiographic features present in karst terrains include, but are not limited to, sinkholes, sinking streams, caves, large springs, and blind valleys.(75) Lateral expansion--A horizontal expansion of the waste boundaries of an existing municipal solid waste landfill unit.(76) Land application of solid waste--The disposal or use of solid waste (including, but not limited to, sludge or septic tank pumpings or mixture of shredded waste and sludge) in which the solid waste is applied within three feet of the surface of the land.(77) Land treatment unit--A solid waste management unit at which solid waste is applied onto or incorporated into the soil surface and that is not a corrective action management unit; such units are disposal units if the waste will remain after closure.(78) Landfill--A solid waste management unit where solid waste is placed in or on land and which is not a pile, a land treatment unit, a surface impoundment, an injection well, a salt dome formation, a salt bed formation, an underground mine, a cave, or a corrective action management unit.(79) Landfill cell--A discrete area of a landfill.(80) Landfill mining--The physical procedures associated with the excavation of buried municipal solid waste and processing of the material to recover material for beneficial use.(81) Leachate--A liquid that has passed through or emerged from solid waste and contains soluble, suspended, or miscible materials removed from such waste.(82) Lead acid battery--A secondary or storage battery that uses lead as the electrode and dilute sulfuric acid as the electrolyte and is used to generate electrical current.(83) License-- (A) A document issued by an approved county authorizing and governing the operation and maintenance of a municipal solid waste facility used to process, treat, store, or dispose of municipal solid waste, other than hazardous waste, in an area not in the territorial limits or extraterritorial jurisdiction of a municipality.(B) An occupational license as defined in Chapter 30 of this title (relating to Occupational Licenses and Registrations).(84) Liquid waste--Any waste material that is determined to contain "free liquids" as defined by United States Environmental Protection Agency (EPA) Method 9095 (Paint Filter Test), as described in "Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods" (EPA Publication Number SW-846).(85) Litter--Rubbish and putrescible waste.(86) Low volume transfer station--A transfer station used for the storage of collected household waste limited to a total storage capacity of 40 cubic yards located in an unincorporated area that is not within the extraterritorial jurisdiction of a city.(87) Lower explosive limit--The lowest percent by volume of a mixture of explosive gases in air that will propagate a flame at 25 degrees Celsius and atmospheric pressure.(88) Medical waste--Treated and untreated special waste from health care-related facilities that is comprised of animal waste, bulk blood, bulk human blood, bulk human body fluids, microbiological waste, pathological waste, and sharps as those terms are defined in 25 TAC §1.132 (relating to Definitions) from the sources specified in 25 TAC §1.134 (relating to Application), as well as regulated medical waste as defined in 49 Code of Federal Regulations §173.134(a)(5), except that the term does not include medical waste produced on a farm or ranch as defined in 34 TAC §3.296(f) (relating to Agriculture, Animal Life, Feed, Seed, Plants, and Fertilizer), nor does the term include artificial, nonhuman materials removed from a patient and requested by the patient, including, but not limited to, orthopedic devices and breast implants. Health care-related facilities do not include:(A) single or multi-family dwellings; and(B) hotels, motels, or other establishments that provide lodging and related services for the public.(89) Monofill--A landfill or landfill cell into which only one type of waste is placed.(90) Municipal hazardous waste--Any municipal solid waste or mixture of municipal solid wastes that has been identified or listed as a hazardous waste by the administrator, United States Environmental Protection Agency.(91) Municipal solid waste--Solid waste resulting from or incidental to municipal, community, commercial, institutional, and recreational activities, including garbage, rubbish, ashes, street cleanings, dead animals, abandoned automobiles, and all other solid waste other than industrial solid waste.(92) Municipal solid waste facility--All contiguous land, structures, other appurtenances, and improvements on the land used for processing, storing, or disposing of solid waste. A facility may be publicly or privately owned and may consist of several processing, storage, or disposal operational units, e.g., one or more landfills, surface impoundments, or combinations of them.(93) Municipal solid waste landfill unit--A discrete area of land or an excavation that receives household waste and that is not a land application unit, surface impoundment, injection well, or waste pile, as those terms are defined under 40 Code of Federal Regulations §257.2. A municipal solid waste (MSW) landfill unit also may receive other types of Resource Conservation and Recovery Act Subtitle D wastes, such as commercial solid waste, nonhazardous sludge, hazardous waste generated by a very small quantity generator (VSQG) during a month in which the VSQG did not generate hazardous waste during an episodic event, and industrial solid waste. Such a landfill may be publicly or privately owned. An MSW landfill unit may be a new MSW landfill unit, an existing MSW landfill unit, a vertical expansion, or a lateral expansion.(94) New facility--A municipal solid waste facility that has not begun construction.(95) Nonpoint source--Any origin from which pollutants emanate in an unconfined and unchanneled manner, including, but not limited to, surface runoff and leachate seeps.(96) Non-regulated asbestos-containing material--Non-regulated asbestos-containing material as defined in 40 Code of Federal Regulations Part 61. This is asbestos material in a form such that potential health risks resulting from exposure to it are minimal.(97) Notification--The act of filing information with the commission for specific solid waste management activities that do not require a permit or a registration, as determined by this chapter. (98) Nuisance--Municipal solid waste that is stored, processed, or disposed of in a manner that causes the pollution of the surrounding land, the contamination of groundwater or surface water, the breeding of insects or rodents, or the creation of odors adverse to human health, safety, or welfare. A nuisance is further set forth in Texas Health and Safety Code, Chapters 341 and 382; Texas Water Code, Chapter 26; and any other applicable regulation or statute.(99) Open burning--The combustion of solid waste without:(A) control of combustion air to maintain adequate temperature for efficient combustion;(B) containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and(C) control of the emission of the combustion products.(100) Operate--To conduct, work, run, manage, or control.(101) Operating hours--The hours when the facility is open to receive waste, operate heavy equipment, and transport materials on- or off-site.(102) Operating record--All plans, submittals, and correspondence for a municipal solid waste facility required under this chapter; required to be maintained at the facility or at a nearby site acceptable to the executive director.(103) Operation--A municipal solid waste (MSW) site or facility is considered to be in operation from the date that solid waste is first received or deposited at the MSW site or facility until the date that the site or facility is properly closed in accordance with this chapter.(104) Operator--The person(s) responsible for operating the facility or part of a facility.(105) Owner--The person that owns a facility or part of a facility.(106) Permitted landfill--Any type of municipal solid waste landfill that received a permit from the State of Texas to operate and has not completed post-closure operations.(107) Physical construction--The first placement of permanent construction on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, the laying of underground pipework, or any work beyond the stage of excavation. Physical construction does not include land preparation, such as clearing, grading, excavating, and filling; nor does it include the installation of roads and/or walkways. Physical construction includes issuance of a building or other construction permit, provided that permanent construction commences within 180 days of the date that the building permit was issued.(108) Plasma arc incinerator--Any enclosed device using a high intensity electrical discharge or arc as a source of heat followed by an afterburner using controlled flame combustion and not listed as an industrial furnace as defined by §335.1 of this title (relating to Definitions).(109) Point of compliance--A vertical surface located no more than 500 feet from the hydraulically downgradient limit of the waste management unit boundary, extending down through the uppermost aquifer underlying the regulated units, and located on land owned by the owner of the facility.(110) Point source--Any discernible, confined, and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, or discrete fissure from which pollutants are or may be discharged.(111) Pollutant--Contaminated dredged spoil, solid waste, contaminated incinerator residue, sewage, sewage sludge, munitions, chemical wastes, or biological materials discharged into water.(112) Pollution--The man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of an aquatic ecosystem.(113) Polychlorinated biphenyl (PCB)--Any chemical substance that is limited to the biphenyl molecule that has been chlorinated to varying degrees or any combination of substances that contains such substance.(114) Polychlorinated biphenyl (PCB) waste(s)--Those PCBs and PCB items that are subject to the disposal requirements of 40 Code of Federal Regulations (CFR) Part 761. Substances that are regulated by 40 CFR Part 761 include, but are not limited to: PCB articles, PCB article containers, PCB containers, PCB-contaminated electrical equipment, PCB equipment, PCB transformers, recycled PCBs, capacitors, microwave ovens, electronic equipment, and light ballasts and fixtures.(115) Poor foundation conditions--Areas where features exist, indicating that a natural or man-induced event may result in inadequate foundation support for the structural components of a municipal solid waste landfill unit.(116) Population equivalent--The hypothetical population that would generate an amount of solid waste equivalent to that actually being managed based on a generation rate of five pounds per capita per day and applied to situations involving solid waste not necessarily generated by individuals. It is assumed, for the purpose of these sections, that the average volume per ton of waste entering a municipal solid waste disposal facility is three cubic yards.(117) Post-consumer waste--A material or product that has served its intended use and has been discarded after passing through the hands of a final user. For the purposes of this subchapter, the term does not include industrial or hazardous waste.(118) Post-use polymers--Plastics:(A) derived from an industrial, commercial, agricultural, or domestic activity, including preconsumer recovered materials and postconsumer materials;(B) that would be classified as nonhazardous solid waste if discarded;(C) that have been sorted from solid waste and other regulated waste and may contain residual amounts of organic material and incidental contaminants or impurities such as paper labels or metal rings;(D) not mixed with solid waste or hazardous waste on-site or while being processed at an advanced recycling facility;(E) used or intended for use as a feedstock or for the production of feedstocks, raw materials, intermediate products, or final products using advanced recycling; and(F) processed or held prior to being processed at an advanced recycling facility. (119) Premises--A tract of land with the buildings thereon, or a building or part of a building with its grounds or other appurtenances.(120) Process to further reduce pathogens--The process to further reduce pathogens as described in 40 Code of Federal Regulations Part 503, Appendix B.(121) Processing--Activities including, but not limited to, the extraction of materials, transfer, volume reduction, conversion to energy, or other separation and preparation of solid waste for reuse or disposal, including the treatment or neutralization of waste, designed to change the physical, chemical, or biological character or composition of any waste to neutralize such waste, or to recover energy or material from the waste, or render the waste safer to transport, store, dispose of, or make it amenable for recovery, amenable for storage, or reduced in volume. The term does not include pyrolysis, gasification, solvolysis, or depolymerization. (122) Public highway--The entire width between property lines of any road, street, way, thoroughfare, bridge, public beach, or park in this state, not privately owned or controlled, if any part of the road, street, way, thoroughfare, bridge, public beach, or park is opened to the public for vehicular traffic, is used as a public recreational area, or is under the state's legislative jurisdiction through its police power.(123) Putrescible waste--Organic wastes, such as garbage, wastewater treatment plant sludge, and grease trap waste, that are capable of being decomposed by microorganisms with sufficient rapidity as to cause odors or gases or are capable of providing food for or attracting birds, animals, and disease vectors.(124) Pyrolysis--A manufacturing process through which post-use polymers are heated in an oxygen-deficient atmosphere and the pyrolysis product is converted into valuable raw materials, valuable intermediate products, or valuable final products, which include plastic monomers, chemicals, naphtha, waxes, polymers, plastic feedstocks, or chemical feedstocks; and do not include crude oil, diesel, gasoline, diesel blend stock, gasoline blend stock, home heating oil, ethanol, or another fuel. The term does not include incineration.(125) Qualified groundwater scientist--A licensed geoscientist or licensed engineer who has received a baccalaureate or post-graduate degree in the natural sciences or engineering and has sufficient training in groundwater hydrology and related fields as may be demonstrated by state registration, professional certifications, or completion of accredited university programs that enable the individual to make sound professional judgments regarding groundwater monitoring, contaminant fate and transport, and corrective action.(126) Radioactive waste--Waste that requires specific licensing under 25 TAC Chapter 289 (relating to Radiation Control), and the rules adopted by the commission under the Texas Health and Safety Code.(127) Recoverable feedstock--One or more of the following materials, derived from recoverable nonhazardous waste other than coal refuse, that has been processed so that it may be used as feedstock in an "Advanced recycling facility" or through "Gasification" as these terms are defined in this section:(A) post-use polymers; (B) material, including municipal solid waste and other post-industrial waste:(i) for which the commission or the United States Environmental Protection Agency has made a non-waste determination under 40 Code of Federal Regulations §241.3(c); or(ii) that the commission or the United States Environmental Protection Agency has otherwise determined are feedstocks and not solid waste; and(C) excluding fuels. (128) Recyclable material--A material that can be or has been recovered or diverted from the nonhazardous waste stream for purposes of reuse, recycling, or reclamation, a substantial portion of which is consistently used in the manufacture of products that may otherwise be produced using raw or virgin materials. The term includes any nonhazardous waste stream, including post-use polymers and recoverable feedstocks that are converted through pyrolysis, gasification, solvolysis, or depolymerization into valuable raw materials, valuable intermediate products, or valuable final products. Recyclable material is not solid waste. However, recyclable material may become solid waste at such time, if any, as it is abandoned or disposed of rather than recycled, whereupon it will be solid waste with respect only to the party actually abandoning or disposing of the material.(129) Recycling--A process by which materials that have served their intended use or are scrapped, discarded, used, surplus, or obsolete are collected, separated, or processed and returned to use in the form of raw materials or feedstocks used in the manufacture of new products. Except for mixed municipal solid waste composting, that is, composting of the typical mixed solid waste stream generated by residential, commercial, and/or institutional sources, recycling includes the composting process if the compost material is put to beneficial use. Recycling includes the conversion of post-use polymers and recoverable feedstocks through pyrolysis, gasification, solvolysis, or depolymerization, but does not include incineration of plastics or waste-to-energy processes.(130) Refuse--Same as rubbish.(131) Registration--The act of filing information with the commission for review and approval for specific solid waste management activities that do not require a permit, as determined by this chapter.(132) Regulated asbestos-containing material--Regulated asbestos-containing material as defined in 40 Code of Federal Regulations Part 61, as amended, includes: friable asbestos material, Category I nonfriable asbestos-containing material that has become friable; Category I nonfriable asbestos-containing material that will be or has been subjected to sanding, grinding, cutting, or abrading; or Category II nonfriable asbestos-containing material that has a high probability of becoming or has become crumbled, pulverized, or reduced to powder by the forces expected to act on the material in the course of demolition or renovation operations.(133) Regulated hazardous waste--A solid waste that is a hazardous waste as defined in 40 Code of Federal Regulations (CFR) §261.3 and that is not excluded from regulation as a hazardous waste under 40 CFR §261.4(b), or that was not generated by a very small quantity generator (VSQG) during a month in which the VSQG did not generate hazardous waste during an episodic event.(134) Resource recovery--The recovery of material or energy from solid waste.(135) Resource recovery facility--A solid waste processing facility at which solid waste is processed for the purpose of extracting, converting to energy, or otherwise separating and preparing solid waste for reuse.(136) Rubbish--Nonputrescible solid waste (excluding ashes), consisting of both combustible and noncombustible waste materials. Combustible rubbish includes paper, rags, cartons, wood, excelsior, furniture, rubber, plastics, brush, or similar materials; noncombustible rubbish includes glass, crockery, tin cans, aluminum cans, and similar materials that will not burn at ordinary incinerator temperatures (1,600 degrees Fahrenheit to 1,800 degrees Fahrenheit).(137) Run-off--Any rainwater, leachate, or other liquid that drains over land from any part of a facility.(138) Run-on--Any rainwater, leachate, or other liquid that drains over land onto any part of a facility.(139) Salvaging--The controlled removal of waste materials for utilization, recycling, or sale.(140) Saturated zone--That part of the earth's crust in which all voids are filled with water.(141) Scavenging--The uncontrolled and unauthorized removal of materials at any point in the solid waste management system.(142) Scrap tire--Any tire that can no longer be used for its original intended purpose.(143) Seasonal high-water level--The highest measured or calculated water level in an aquifer during investigations for a permit application and/or any groundwater characterization studies at a facility.(144) Septage--The liquid and solid material pumped from a septic tank, cesspool, or similar sewage treatment system.(145) Site--Same as facility.(146) Site development plan--A document, prepared by the design engineer, that provides a detailed design with supporting calculations and data for the development and operation of a solid waste site.(147) Site operating plan--A document, prepared by the design engineer in collaboration with the facility operator, that provides general instruction to facility management and operating personnel throughout the operating life of the facility in a manner consistent with the engineer's design and the commission's regulations to protect human health and the environment and prevent nuisances.(148) Site operator--The holder of, or the applicant for, an authorization (or license) for a municipal solid waste facility.(149) Sludge--Any solid, semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water-supply treatment plant, or air pollution control facility, exclusive of the treated effluent from a wastewater treatment plant.(150) Small municipal solid waste landfill--A municipal solid waste landfill unit (Type IAE) at which less than 20 tons of authorized types of waste are disposed of daily based on an annual average and/or a Type IVAE landfill unit at which less than 20 tons of authorized types of waste are disposed of daily based on an annual average. A Type IAE landfill permit may include additional authorization for a separate Type IVAE landfill unit. If a permit contains dual authorization for Type IAE and Type IVAE landfill units, the permit must designate separate areas for the units and where all disposal cells will be located within each unit.(151) Solid waste--Garbage, rubbish, refuse, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, municipal, commercial, mining, and agricultural operations and from community and institutional activities. The term does not include:(A) solid or dissolved material in domestic sewage, or solid or dissolved material in irrigation return flows, or industrial discharges subject to regulation by permit issued under Texas Water Code, Chapter 26;(B) soil, dirt, rock, sand, and other natural or man-made inert solid materials used to fill land if the object of the fill is to make the land suitable for the construction of surface improvements; (C) waste materials that result from activities associated with the exploration, development, or production of oil or gas or geothermal resources and other substance or material regulated by the Railroad Commission of Texas under Natural Resources Code, §91.101, unless the waste, substance, or material results from activities associated with gasoline plants, natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants and is hazardous waste as defined by the administrator of the United States Environmental Protection Agency under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as amended (42 United States Code (USC), §§6901 et seq. ); or(D) post-use polymers or recoverable feedstocks that have been converted through pyrolysis, gasification, solvolysis, or depolymerization into valuable raw materials, valuable intermediate products, or valuable final products, which include plastic monomers, chemicals, waxes, lubricants, or chemical feedstocks pyrolysis, that do not qualify as hazardous waste under the Resource Conservation and Recovery Act of 1976 (42 USC, §§6901 et seq. ).(152) Solid waste management unit--A landfill, surface impoundment, waste pile, furnace, incinerator, kiln, injection well, container, drum, salt dome waste containment cavern, land treatment unit, tank, container storage area, or any other structure, vessel, appurtenance, or other improvement on land used to manage solid waste.(153) Solvolysis--A manufacturing process that includes hydrolysis, aminolysis, ammonolysis, methanolysis, and glycolysis through which post-use polymers are purified with the aid of solvents while heated at low temperatures, pressurized, or both heated at low temperatures and pressurized, to remove additives and contaminants and make useful products, which include monomers, intermediates, valuable chemicals, plastic feedstocks, chemical feedstocks, and raw materials; and do not include crude oil, diesel, gasoline, diesel blend stock, gasoline blend stock, home heating oil, ethanol, or another fuel.(154) Source-separated recyclable material--Recyclable material from residential, commercial, municipal, institutional, recreational, industrial, and other community activities, that at the point of generation has been separated, collected, and transported separately from municipal solid waste (MSW), or transported in the same vehicle as MSW, but in separate containers or compartments. Source-separation does not require the recovery or separation of non-recyclable components that are integral to a recyclable product, including:(A) the non-recyclable components of white goods, whole computers, whole automobiles, or other manufactured items for which dismantling and separation of recyclable from non-recyclable components by the generator are impractical, such as insulation or electronic components in white goods;(B) source-separated recyclable material rendered unmarketable by damage during collection, unloading, and sorting, such as broken recyclable glass; and(C) tramp materials, such as:(i) glass from recyclable metal windows;(ii) nails and roofing felt attached to recyclable shingles;(iii) nails and sheetrock attached to recyclable lumber generated through the demolition of buildings; and(iv) pallets and packaging materials.(155) Special waste--Any solid waste or combination of solid wastes that because of its quantity, concentration, physical or chemical characteristics, or biological properties requires special handling and disposal to protect the human health or the environment. If improperly handled, transported, stored, processed, or disposed of or otherwise managed, it may pose a present or potential danger to the human health or the environment. Special wastes are:(A) hazardous waste generated by a very small quantity generator (VSQG) during a calendar month in which the VSQG did not generate hazardous waste during an episodic event that may be exempt from full regulation under Chapter 335, Subchapters A and C of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste in General and Standards Applicable to Generators of Hazardous Waste, respectively);(B) Class 1 industrial nonhazardous waste;(C) untreated medical waste;(D) municipal wastewater treatment plant sludges, other types of domestic sewage treatment plant sludges, and water-supply treatment plant sludges;(E) septic tank pumpings;(F) grease and grit trap wastes;(G) wastes from commercial or industrial wastewater treatment plants; air pollution control facilities; and tanks, drums, or containers used for shipping or storing any material that has been listed as a hazardous constituent in 40 Code of Federal Regulations (CFR) Part 261, Appendix VIII but has not been listed as a commercial chemical product in 40 CFR §261.33(e) or (f);(H) slaughterhouse wastes;(I) dead animals;(J) drugs, contaminated foods, or contaminated beverages, other than those contained in normal household waste;(K) pesticide (insecticide, herbicide, fungicide, or rodenticide) containers;(L) discarded materials containing asbestos;(M) incinerator ash;(N) soil contaminated by petroleum products, crude oils, or chemicals in concentrations of greater than 1,500 milligrams per kilogram total petroleum hydrocarbons; or contaminated by constituents of concern that exceed the concentrations listed in Table 1 of §335.521(a)(1) of this title (relating to Appendices);(O) used oil;(P) waste from oil, gas, and geothermal activities subject to regulation by the Railroad Commission of Texas when those wastes are to be processed, treated, or disposed of at a solid waste management facility authorized under this chapter;(Q) waste generated outside the boundaries of Texas that contains:(i) any industrial waste;(ii) any waste associated with oil, gas, and geothermal exploration, production, or development activities; or(iii) any item listed as a special waste in this paragraph; (R) lead acid storage batteries; and(S) used-oil filters from internal combustion engines.(156) Stabilized sludges--Those sludges processed to significantly reduce pathogens, by processes specified in 40 Code of Federal Regulations Part 257, Appendix II.(157) Storage--The keeping, holding, accumulating, or aggregating of solid waste for a temporary period, at the end of which the solid waste is processed, disposed, or stored elsewhere.(A) Examples of storage facilities are collection points for:(i) only nonputrescible source-separated recyclable material;(ii) consolidation of parking lot or street sweepings or wastes collected and received in sealed plastic bags from such activities as periodic citywide cleanup campaigns and cleanup of rights-of-way or roadside parks; and(iii) accumulation of used or scrap tires prior to transportation to a processing or disposal facility.(B) Storage includes operation of pre-collection or post-collection as follows:(i) pre-collection--that storage by the generator, normally on his premises, prior to initial collection; or(ii) post-collection--that storage by a transporter or processor, at a processing facility, while the waste is awaiting processing or transfer to another storage, disposal, or recovery facility. (158) Storage battery--A secondary battery, so called because the conversion from chemical to electrical energy is reversible and the battery is thus rechargeable. Secondary or storage batteries contain an electrode made of sponge lead and lead dioxide, nickel-iron, nickel-cadmium, silver-zinc, or silver-cadmium. The electrolyte used is sulfuric acid. Other types of storage batteries contain lithium, sodium-liquid sulfur, or chlorine-zinc using titanium electrodes.(159) Structural components--Liners, leachate collection systems, final covers, run-on/run-off systems, and any other component used in the construction and operation of the municipal solid waste landfill that is necessary for protection of human health and the environment.(160) Surface impoundment--A natural topographic depression, man-made excavation, or diked area formed primarily of earthen materials (although it may be lined with man-made materials) that is designed to hold an accumulation of liquids; examples include holding, storage, settling, and aeration pits, ponds, and lagoons.(161) Surface water--Surface water as included in water in the state.(162) Tank--A stationary device, designed to contain an accumulation of solid waste, which is constructed primarily of non-earthen materials (e.g., wood, concrete, steel, plastic) that provide structural support.(163) Tank system--A solid waste storage or processing tank and its associated ancillary equipment and containment system.(164) Transfer station--A facility used for transferring solid waste from collection vehicles to long-haul vehicles (one transportation unit to another transportation unit). It is not a storage facility such as one where individual residents can dispose of their wastes in bulk storage containers that are serviced by collection vehicles.(165) Transportation unit--A truck, trailer, open-top box, enclosed container, rail car, piggy-back trailer, ship, barge, or other transportation vehicle used to contain solid waste being transported from one geographical area to another.(166) Transporter--A person that collects, conveys, or transports solid waste; does not include a person transporting his or her household waste.(167) Trash--Same as Rubbish.(168) Treatment--Same as Processing.(169) Triple rinse--To rinse a container three times using a volume of solvent capable of removing the contents equal to 10% of the volume of the container or liner for each rinse.(170) Uncompacted waste--Any waste that is not a liquid or a sludge, has not been mechanically compacted by a collection vehicle, has not been driven over by heavy equipment prior to collection, or has not been compacted prior to collection by any type of mechanical device other than small, in-house compactor devices owned and/or operated by the generator of the waste.(171) Unified soil classification system--The standardized system devised by the United States Army Corps of Engineers for classifying soil types.(172) Universal waste--Any of the following hazardous wastes that are subject to the universal waste requirements of Chapter 335, Subchapter H, Division 5 of this title (relating to Universal Waste Rule):(A) batteries, as described in 40 Code of Federal Regulations (CFR) §273.2;(B) pesticides, as described in 40 CFR §273.3;(C) thermostats, as described in 40 CFR §273.4;(D) paint and paint-related waste, as described in §335.262(b) of this title (relating to Standards for Management of Paint and Paint-Related Waste); and(E) lamps, as described in 40 CFR §273.5.(173) Unloading areas--Areas designated for unloading, including all working faces, active disposal areas, storage areas, and other processing areas.(174) Unstable area--A location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and karst terrains.(175) Uppermost aquifer--The geologic formation nearest the natural ground surface that is an aquifer; includes lower aquifers that are hydraulically interconnected with this aquifer within the facility's property boundary.(176) Vector--An agent, such as an insect, snake, rodent, bird, or animal capable of mechanically or biologically transferring a pathogen from one organism to another.(177) Very small quantity generator--A generator who generates less than or equal to the following amounts of hazardous waste in a calendar month:(A) 100 kilograms (220 pounds) of non-acute hazardous waste; and (B) 1 kilogram (2.2 pounds) of acute hazardous waste listed in 40 Code of Federal Regulations (CFR) §261.31 or §261.33(e); and (C) 100 kilograms (220 pounds) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in 40 CFR §261.31 or §261.33(e). (178) Washout--The carrying away of solid waste by waters.(179) Waste acceptance hours--Those hours when waste is received from off-site.(180) Waste management unit boundary--A vertical surface located at the perimeter of the unit. This vertical surface extends down into the uppermost aquifer.(181) Waste-separation/intermediate-processing center--A facility, sometimes referred to as a materials recovery facility, to which recyclable materials arrive as source-separated materials, or where recyclable materials are separated from the municipal waste stream and processed for transport off-site for reuse, recycling, or other beneficial use.(182) Waste-separation/recycling facility--A facility, sometimes referred to as a material recovery facility, in which recyclable materials are removed from the waste stream for transport off-site for reuse, recycling, or other beneficial use.(183) Water in the state--Groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Gulf of Mexico inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or non-navigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.(184) Water table--The upper surface of the zone of saturation at which water pressure is equal to atmospheric pressure, except where that surface is formed by a confining unit.(185) Waters of the United States--All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide, with their tributaries and adjacent wetlands, interstate waters and their tributaries, including interstate wetlands; all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, and wetlands, the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters that are or could be used by interstate or foreign travelers for recreational or other purposes; from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; that are used or could be used for industrial purposes by industries in interstate commerce; and all impoundments of waters otherwise considered as navigable waters; including tributaries of and wetlands adjacent to waters identified herein.(186) Wetlands--As defined in Chapter 307 of this title (relating to Texas Surface Water Quality Standards).(187) White goods--Discarded large household appliances such as refrigerators, stoves, washing machines, or dishwashers.(188) Working face--Areas in a landfill where waste has been deposited for disposal but has not been covered.(189) Yard waste--Leaves, grass clippings, yard and garden debris, and brush, including clean woody vegetative material not greater than six inches in diameter, that results from landscaping maintenance and land-clearing operations. The term does not include stumps, roots, or shrubs with intact root balls.</content><note type="source"><p>Source Note: The provisions of this §330.3 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective October 29, 2020, 45 Texeg 7605; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scA/s330.5"><num value="330.5">§330.5</num><heading>Classification of Municipal Solid Waste Facilities</heading><content>(a) The commission has classified all municipal solid waste (MSW) facilities according to the method of processing or disposal of MSW. Subject to the limitations in §§330.15, 330.171, and 330.173 of this title (relating to General Prohibitions; Disposal of Special Wastes; and Disposal of Industrial Wastes), and with the written approval of the executive director, Type I, IV, V, and VI MSW facilities may also receive special wastes, including Class 1 industrial solid waste and hazardous waste from very small quantity generators, if properly handled and safeguarded in the facility.(1) MSW facility - Type I. A Type I landfill unit is the standard landfill for the disposal of MSW. The commission may authorize the designation of special-use areas for processing, storage, and disposal or any other functions involving solid waste. Except as allowed in subsections (b) - (e) of this section, owners or operators shall follow the permit application requirements prescribed in Subchapter B of this chapter (relating to Permit and Registration Application Procedures) and the minimum design and operational requirements of Subchapter D of this chapter (relating to Operational Standards for Municipal Solid Waste Landfill Facilities); Subchapter G of this chapter (relating to Surface Water Drainage); Subchapter H of this chapter (relating to Liner System Design and Operation); Subchapter I of this chapter (relating to Landfill Gas Management); Subchapter J of this chapter (relating to Groundwater Monitoring and Corrective Action); Subchapter K of this chapter (relating to Closure and Post- Closure); Subchapter L of this chapter (relating to Closure, Post-Closure, and Corrective Action Cost Estimates); Subchapter M of this chapter (relating to Location Restrictions); Subchapter T of this chapter (relating to Use of Land Over Closed Municipal Solid Waste Landfills); and Chapter 37, Subchapter R of this title (relating to Financial Assurance for Municipal Solid Waste Facilities). Those landfill units meeting the requirements of subsection (b) of this section shall be referred to as Type IAE landfill units. Type IAE landfill units are authorized to accept the same types of waste as Type I landfill units subject to the limitations in §330.173 of this title, and are exempt from Subchapters H and J of this chapter. Owners or operators of Type I landfill facilities that are authorized to operate a Type IV cell or trench shall operate the cell or trench in accordance with paragraph (2) of this subsection.(2) MSW facility - Type IV. A Type IV landfill unit may only accept brush, construction, or demolition waste, and/or rubbish. A Type IV landfill unit may not accept putrescible wastes, very small quantity generator waste, or household wastes. Except as allowed in subsection (b) of this section, owners or operators shall follow the permit application requirements prescribed in Subchapter B of this chapter and the minimum design and operational standards prescribed in Subchapters D and G of this chapter; §§330.331(d), 330.335, 330.337, 330.339, and 330.341 of this title (relating to Liner System Design and Operation); §330.417 of this title (relating to Groundwater Monitoring at Type IV Landfills); §§330.453, 330.463(a), and 330.465 of this title (relating to Closure Requirements for Municipal Solid Waste Landfill Units that Stopped Receiving Waste Prior to October 9, 1991, Type IV Landfills, and Municipal Solid Waste Sites, Post-Closure Care Requirements, and Certification of Completion of Post-Closure Care); Subchapter M of this chapter; and Chapter 37, Subchapter R of this title. Those landfill units meeting the requirements of subsection (b) of this section shall be referred to as Type IVAE landfill units. Type IVAE landfill units are authorized to accept the same types of waste as Type IV landfill units and are exempt from Subchapters H and J of this chapter.(3) MSW facility - Type V. Separate solid waste processing facilities are classified as Type V. These facilities include processing plants that transfer, incinerate, shred, grind, bale, salvage, separate, dewater, reclaim, and/or provide other storage or processing of solid waste. Owners or operators shall follow the minimum design and operational requirements prescribed in Subchapter E of this chapter (relating to Operational Standards for Municipal Solid Waste Storage and Processing Units); Subchapter G of this chapter; Subchapter H of this chapter, if required; Subchapter K of this chapter; Subchapter L of this chapter, if financial assurance is required; Subchapter M of this chapter; and Chapter 37, Subchapter R of this title, except that owners and operators of recycling facilities who store combustible material are required to comply with Chapter 37, Subchapter J of this title (relating to Financial Assurance for Recycling Facilities). Groundwater monitoring may be required by the executive director and shall be maintained in accordance with the requirements of Subchapter J of this chapter.(4) MSW facility - Type VI. A Type VI facility or operation is a facility using a new or unproven method of managing or utilizing MSW, including resource and energy recovery projects for processes that are not currently in use in Texas. The commission may limit the size of these facilities until the method is proven. The minimum operational standards are prescribed in Subchapter E of this chapter.(5) MSW facility - Type VII. A Type VII facility or operation is a facility for the land management of sludges and/or similar wastes. Operational standards, depending on the particular waste, facility purpose, and method of operation (land application for beneficial use, land disposal to include landfilling and land treatment, etc.) are contained in Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation).(6) MSW facility - Type VIII. Facilities for the management of used or scrap tires are classified as Type VIII. Standards are prescribed in Chapter 328, Subchapter F of this title (relating to Management of Used or Scrap Tires).(7) MSW facility - Type IX. A Type IX facility is an energy, material, gas recovery for beneficial use, or landfill mining facility located within or adjacent to a closed disposal facility, an inactive portion of a disposal facility, or an active disposal facility, used for extracting materials for energy and material recovery or for gas recovery for beneficial use. Registration by rule requirements for facilities that recover landfill gas for beneficial use are prescribed in §330.9(j) of this title (relating to Registration Required). Owners or operators of other Type IX facilities shall follow the registration application requirements prescribed in Subchapter B of this chapter. All owners and operators shall follow the minimum design and operational requirements of Subchapter E of this chapter; §330.459 of this title (relating to Closure Requirements for Municipal Solid Waste Storage and Processing Units); §330.461 of this title (relating to Certification of Final Facility Closure); §330.505 of this title (relating to Closure Cost Estimates for Storage and Processing Units); and Chapter 37, Subchapter R of this title. Waste mining activities shall also follow the minimum design and operation requirements of §330.149 of this title (relating to Odor Management Plan); §330.151 of this title (relating to Disease Vector Control); §330.165 of this title (relating to Landfill Cover); and §330.167 of this title (relating to Ponded Water). Owners or operators of an MSW landfill facility applying for a non-beneficial use gas control system for any area within the facility's permit boundary shall apply for a permit modification under §305.70 of this title (relating to Municipal Solid Waste Permit and Registration Modifications). Type IX facility permits and registrations previously issued for the recovery and beneficial use of landfill gas are considered to remain valid under applicable permit provisions until amended, modified, or revoked by the commission. The owner or operator must submit all information necessary to complete the air quality review as prescribed by the commission and be approved by the executive director prior to the Type IX registration by rule becoming effective.(b) Owners or operators of a Type IAE or Type IVAE landfill facility may qualify for an arid exemption, as follows.(1) Owners or operators of new, existing, and lateral expansions of Type IAE or Type IVAE landfill units may qualify for an arid exemption and be exempt from Subchapters H and J of this chapter, provided all of the following conditions are met:(A) the facility disposes less than 20 tons per day based on an annual average of authorized waste in a Type IAE landfill unit and/or less than 20 tons per day based on an annual average of authorized waste in a Type IVAE landfill unit for a total waste acceptance rate less than 40 tons per day for the facility considering all waste streams based on an annual average;(B) there is no evidence of existing groundwater contamination from the facility;(C) the facility serves a community that has no practicable waste management alternative; and(D) the facility is located in an area that receives less than or equal to 25 inches of annual average precipitation based on precipitation data from the nearest official precipitation recording station for the most recent 30-year reporting period.(2) Requests for exemptions under §330.63(d)(5) of this title (relating to Contents of Part III of the Application) may be approved administratively by the executive director, upon demonstration of compliance with all applicable criteria. The executive director may deny an exemption request if the available information indicates that granting the exemption could result in a substantial threat of groundwater contamination. Existing Type IAE landfill permits, which include a 20 tons per day waste disposal limit, may be revised via a major amendment to allow for disposal of an additional less than 20 tons of authorized waste in a Type IVAE landfill unit located in a separate area of the same facility. Existing Type IAE landfill permits, which do not include a waste disposal limit or include a waste disposal limit in excess of limits allowed for Type IAE landfill units, may be modified consistent with the restrictions for small MSW landfills. Within 180 days of the effective date of the comprehensive rule revisions in this chapter as adopted in 2006 (2006 Revisions), owners and operators of such a permit shall comply with the waste acceptance rate limit for a Type IAE landfill unit or apply to modify such permit to include a Type IVAE landfill unit located in a separate area of the facility. Such permits remain valid until a final decision is made on the modification application. Such a modification must be processed in accordance with §305.70(l) of this title as a modification subject to public notice. Such a modification application must be submitted in conjunction with a corresponding application to modify the revised estimated waste acceptance rate under §330.125(h) of this title (relating to Recordkeeping Requirements).(3) Owners or operators may appeal denials of a request for exemption to the commission for decision.(4) If the owner or operator of a new, existing, or lateral expansion of a Type IAE or Type IVAE landfill facility who has previously asserted eligibility for the arid exemption has knowledge or becomes aware of groundwater contamination from the facility within a one-mile radius of the unit, the facility no longer meets the definition of a Type IAE or Type IVAE landfill facility, the waste reduction program is ineffective (based upon an evaluation of trends established after a minimum period of a year), or a practicable alternative becomes available, the owner or operator shall notify in writing the executive director of such condition(s) and thereafter comply with Subchapter B, Subchapter H, and Subchapter J of this chapter on a schedule specified by the executive director.(5) The executive director may consider the economic investment made by the owner or operator in establishing the schedule for compliance.(6) The minimum time allowed for compliance necessitated by loss of Type IAE or Type IVAE landfill facility status or availability of a practicable alternative shall be 18 months.(7) A Type IAE or Type IVAE landfill facility that meets the requirements of this subsection shall maintain the integrity of any existing on-site groundwater monitor wells and make them available to the executive director for the collection of groundwater samples.(c) For MSW landfills that stopped receiving waste before October 9, 1991, and unauthorized MSW sites, the closure provisions of §330.453 of this title (relating to Closure Requirements for Municipal Solid Waste Landfill Units that Stopped Receiving Waste Prior to October 9, 1991, Type IV Landfills, and Municipal Solid Waste Sites) apply. If not previously submitted, owners or operators shall submit a closure report that documents that MSW landfill units or unauthorized MSW sites, or portions thereof, have received final cover.(d) MSW landfill units that receive waste after October 9, 1991, but stop receiving waste before October 9, 1993, are subject to the final cover requirements specified in §330.455 of this title (relating to Closure Requirements for Municipal Solid Waste Landfill Units that Received Waste on or after October 9, 1991, but Stopped Receiving Waste Prior to October 9, 1993). The final cover must be installed and certified in accordance with the requirements contained in §§330.451, 330.453, 330.455, and 330.457 of this title (relating to Closure and Post-Closure). Owners or operators of MSW landfill units described in this subsection that fail to complete cover installation and certification within the time limits specified in Subchapter K of this chapter will be subject to all the requirements of these regulations.(e) All MSW landfill units that receive waste on or after October 9, 1993, must comply with all requirements of these regulations, unless otherwise specified.</content><note type="source"><p>Source Note: The provisions of this §330.5 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scA/s330.7"><num value="330.7">§330.7</num><heading>Permit Required</heading><content>(a) Except as provided in §§330.9, 330.11, 330.13, or 330.25 of this title (relating to Registration Required; Notification Required; Waste Management Activities Exempt from Permitting, Registration, or Notification; and Relationship with County Licensing System), no person may cause, suffer, allow, or permit any activity of storage, processing, removal, or disposal of any solid waste unless such activity is authorized by a permit or other authorization from the commission. In the event this requirement is violated, the executive director may seek recourse against not only the person that stored, processed, or disposed of the waste but also against the generator, transporter, owner or operator, or other person who caused, suffered, allowed, or permitted its waste to be stored, processed, or disposed. No person may commence physical construction of a new municipal solid waste (MSW) management facility, a vertical expansion, or a lateral expansion without first having submitted a permit application in accordance with §§330.57, 330.59, 330.61, 330.63, and 330.65 of this title (relating to Permit and Registration Applications for Municipal Solid Waste Facilities; Contents of Part I of the Application; Contents of Part II of the Application; Contents of Part III of the Application; and Contents of Part IV of the Application, respectively) and received a permit from the commission, except as provided otherwise in this section.(b) A separate permit is required for the storage, transportation, or handling of used oil mixtures collected from oil/water separators. Any person that intends to conduct such activity shall comply with the regulatory requirements of Chapter 324 of this title (relating to Used Oil Standards).(c) Permits by rule may be granted for persons that compact or transport waste in enclosed containers or enclosed transportation units to a Type IV facility.(1) A permit by rule is granted for a generator operating a stationary compactor that is only used to compact waste to be disposed of at a Type IV landfill, if all of the following conditions are met.(A) The generator submits the following information and any requested additional information on forms provided by the executive director:(i) generator contact person, company name, mailing address, street address, city, state, ZIP code, and telephone number;(ii) contract renewal date, if applicable;(iii) rated compaction capability in pounds per cubic yard;(iv) container size;(v) description of waste stream to enter compactor;(vi) receiving MSW Type IV disposal facility name, permit number, mailing address, street address, city, state, ZIP code, telephone number, and contact person; and(vii) a certification from the generator that states the following: I, (name) ______________________________, (title) _________________________________________ of (company name) __________________, located at (street address) __________________________ in (city) ___________________________________________, certify that the contents of the compactor located at the location stated herein are free of and shall be maintained free of putrescible, hazardous, infectious, and any other waste not allowed in an MSW Type IV landfill.(B) The generator submits a $75 fee along with the claim for the permit by rule.(C) The generator complies with the operational requirements of §330.215 of this title (relating to Requirements for Stationary Compactors).(D) A stationary compactor permit by rule expires after one year. The generator must submit an annual renewal fee in the amount of $75. Failure to timely pay the annual fee eliminates the option of disposal of these wastes at a Type IV landfill until the generator claims a new or renewed permit by rule.(2) A permit by rule is granted for transporters using enclosed containers or enclosed vehicles to collect and transport brush, construction or demolition wastes, and rubbish along special collection routes to MSW Type IV landfill facilities if all of the following conditions are met.(A) The owner or operator seeking a special collection route permit by rule submits to the executive director the following information and any requested additional information on forms provided by the executive director:(i) name of owner and operator, mailing address, street address, city, state, ZIP code, name and title of a contact person, and telephone number;(ii) receiving MSW Type IV disposal facility name, permit number, mailing address, street address, city, state, ZIP code, telephone number, and contact person;(iii) information on each transportation unit, including, at a minimum, license number, vehicle identification number, year model, make, capacity in cubic yards, and rated compaction capability in pounds per cubic yard;(iv) route information, which shall include as a minimum the collection frequency, the day of the week the route is to be collected, and the day and time span within which the route is to arrive at the MSW Type IV landfill;(v) a description of the wastes to be transported;(vi) an alternative contingency disposal plan to include alternate trucks to be used or alternative disposal facilities; and(vii) a signed and notarized certification from the owner or operator that states the following: I, (name) _______, (title) _______, of _______ operating in ______ County, certify that the contents of the vehicles described above will be free of putrescible, household, hazardous, infectious, or any other waste not allowed in an MSW Type IV landfill.(B) The transporter submits a $100 per vehicle fee along with the claim for a permit by rule.(C) The transporter documents each load delivered with a trip ticket form provided by the executive director, and provides the trip ticket to the landfill operator prior to discharging the load.(D) A special collection route permit by rule expires after one year. The owner or operator must submit an annual renewal fee in the amount of $100 per vehicle. Failure to timely pay the annual fee eliminates the option of disposal of these wastes at a Type IV landfill until the owner or operator claims a new or renewed permit by rule.(E) This paragraph does not apply if the waste load is from a single collection point that is a stationary compactor authorized in accordance with paragraph (1) of this subsection.(3) Revision requirements for stationary compactor permits or special collection route permits by rule identified in paragraphs (1) and (2) of this subsection are as follows.(A) An update must be submitted if any information within the original permit by rule submittal changes.(B) A submittal to update an existing permit by rule must include all of the same documentation required for an original permit by rule submittal.(d) A major permit amendment, as defined by §305.62 of this title (relating to Amendments), is required to reopen a Type I, Type IAE, Type IV, or Type IVAE MSW facility permitted by the commission or any of its predecessor or successor agencies that has either stopped accepting waste, or only accepted waste in accordance with an emergency authorization, for a period of five years or longer. The MSW facilities covered by this subsection may not be reopened to accept waste again unless the permittee demonstrates compliance with all applicable requirements of the Resource Conservation and Recovery Act, Subtitle D and the implementing Texas state regulations. If an MSW facility was subject to a contract of sale on January 1, 2001, the scope of any public hearing held on the permit amendment required by this subsection is limited to land use compatibility, as provided by §330.57(a) of this title. This subsection does not apply to any MSW facility that has received a permit but never received waste, or that received an approved Subtitle D permit modification before September 1, 2001.(e) A permit by rule is granted for an animal crematory that meets the following criteria. For facilities that do not meet all the requirements of this subsection, the owner or operator shall submit a permit application under §§330.57, 330.59, 330.61, 330.63, and 330.65 of this title and obtain a permit. To qualify for a permit by rule under this subsection, the following requirements must be met.(1) General prohibitions. An animal crematory facility shall comply with §330.15(a) of this title (relating to General Prohibitions).(2) Incineration limits. Incineration of carcasses shall be limited to the conditions specified in §106.494 of this title (relating to Non-commercial Incinerators and Crematories). The facility shall not accept animal carcasses that weigh more than the capacity of the largest incinerator at the facility and shall not dismember any carcasses during processing.(3) Ash control. Ash disposal must be at an authorized facility unless the ash is returned to the animal owner or sent to a pet cemetery. Ash shall be stored in an enclosed container that will prevent release of the ash to the environment. There shall be no more than 2,000 pounds of ash stored at an animal crematory at any given time.(4) Air pollution control. Air emissions from the facility shall not cause or contribute to a condition of air pollution as defined in Texas Clean Air Act, §382.003. All animal crematories, prior to construction or modification, must have an air permit issued under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification), or qualify for a permit by rule under §106.494 of this title.(5) Fire protection. The facility shall prepare, maintain, and follow a fire protection plan. This fire protection plan shall describe fire protection resources (a local fire department, fire hydrants, fire extinguishers, water tanks, water well, etc.), and employee training and safety procedures. The fire protection plan shall comply with local fire codes.(6) Storage limits. Carcasses must be incinerated within two hours of receipt, unless stored at or below a temperature of 29 degrees Fahrenheit. Storage of carcasses shall be in a manner that minimizes the release of odors. Storage of carcasses shall be limited to the lesser of 3,200 pounds or the amount that can be incinerated at the maximum loading rate for the incinerators at the facility in a two-day period.(7) Unauthorized waste. Only carcasses or animal parts, with any associated packaging, shall be processed. Carcasses shall not be accepted in packaging that includes any chlorinated plastics. Carcasses or animal parts that are either hazardous waste or medical waste are prohibited.(8) Cleaning. Storage and processing units must be properly cleaned on a routine basis to prevent odors and the breeding of flies.(9) Nuisance prevention. The facility shall be designed and operated in a manner so as to prevent nuisance conditions, including, but not limited to, dust from ashes, disease vectors, odors, and liquids from spills, from being released from the property boundary of the authorized facility.(10) Diseased animals. The facility shall be equipped with appropriate protective equipment and clothing for personnel handling diseased animals that may be received at the facility. Facility owners or operators must inform customers and local veterinarians of the need to identify diseased animals for the protection of personnel handling the animals.(11) Buffer zone. An animal crematory, including unloading and storage areas, constructed after March 2, 2003, must be at least 50 feet from the property boundary of the facility.(12) Operating hours. A crematory shall operate within the time frames allowed by §111.129 of this title (relating to Operating Requirements).(13) Documentation. The operator of an animal crematory shall document the carcasses' weight, date and time when carcasses are received, and when carcasses are loaded into the incinerator. A separate entry in the records for loading into the incinerator is not required if a carcass is loaded within two hours of receipt. This information will be maintained in records on site.(14) Breakdown. The facility is subject to §330.241 of this title (relating to Overloading and Breakdown).(15) Records management. The owner or operator must retain records as follows:(A) maintain a copy of all requirements of this subsection that apply to the facility;(B) maintain records for the previous consecutive 12-month period containing sufficient information to demonstrate compliance with all requirements of this subsection;(C) keep all required records at the facility; and(D) make the records available upon request to personnel from the commission or from local governments with jurisdiction over the facility.(16) Fees. An animal crematory facility authorized under this section is exempt from the fee requirements of Subchapter P of this chapter (relating to Fees and Reporting).(17) Other requirements. No other requirements under this chapter are applicable to a facility that meets all of the requirements of this subsection.(f) A permit by rule is granted for a dual chamber incinerator if the owner or operator complies with §106.491 of this title (relating to Dual-Chamber Incinerators).(g) A permit by rule is granted for an air curtain incinerator if the owner or operator complies with §106.496 of this title (relating to Air Curtain Incinerators). An air curtain incinerator may not be located within 300 feet of an active or closed MSW landfill unit boundary.(h) A standard air permit is granted for facilities that comply with Subchapter U of this chapter (relating to Standard Air Permits for Municipal Solid Waste Landfill Facilities and Transfer Stations).(i) A permit by rule is granted for a period of up to five years to a county or municipality with a population of 12,000 people or less to dispose of demolition waste from properties with nuisance or abandoned buildings.(1) Requirements. The following conditions must be met.(A) Form submittal. The county or municipality submits a form provided by the commission to the executive director for review and approval before construction begins.(B) Notice to regional office. The county or municipality notifies the applicable commission regional office of the intent to dispose of waste under this authorization at least 48 hours prior to accepting the first load of waste.(C) Facility location. The location where disposal will occur:(i) is owned or controlled by the county or municipality, and(ii) receives less than or equal to 25 inches average annual precipitation as determined from precipitation data for the nearest official precipitation recording station for at least the most recent 30-year reporting period or by another method approved by the executive director.(D) Sources of waste. The properties on which nuisance and abandoned buildings are located have been acquired by the county or municipality by means of bankruptcy, tax delinquency, or condemnation, and the previous owners are not financially capable of paying the costs of the disposal of demolition waste at a permitted solid waste disposal facility, including transportation of the waste to the facility.(E) Waste acceptance.(i) Prior to demolition, structures are surveyed and abated, if required, for asbestos-containing materials in accordance with 25 TAC Chapter 296 (relating to Texas Asbestos Health Protection).(ii) The facility may accept non-regulated asbestos-containing materials (non-RACM) for disposal. The wastes are placed on the active working face and covered at the end of the operating day with at least six inches of soil. Under no circumstances may any of the material containing non-RACM be placed on a surface that is subject to vehicular traffic or disposed of by any other means by which the material could be crumbled into a friable state.(iii) The facility may accept regulated asbestos-containing materials (RACM) if the following conditions are met.(I) The county or municipality notifies the executive director on a form provided by the commission in accordance with subparagraph (A) of this paragraph.(II) All waste trenches are identified as receiving RACM, and deed records required under subparagraph (Q) of this paragraph include an indication that the waste trench(es) received RACM.(III) RACM is transported and received at the facility in tightly closed and unruptured containers or bags or wrapped with at least six-mil polyethylene.(IV) Bags or containers holding RACM are carefully unloaded and placed in the final disposal location. RACM is then covered immediately with at least six inches of soil. Care is taken during unloading and placement of RACM and during application of the cover so that the bags or containers are not ruptured.(iv) Waste is limited to the abandoned or nuisance buildings and materials from the property on which the buildings are located. All waste disposed under this authorization must meet the limitations of §330.5(a)(2) of this title (relating to Classification of Municipal Solid Waste Facilities) and may not include waste prohibited under §330.15(e) of this title.(F) Access control. Access to the disposal facility is controlled by means of fences, other artificial barriers, natural barriers, or a combination of these methods, and includes a locking gate.(G) Buffers and easements. The county or municipality maintains a minimum distance of 50 feet as a buffer between the permit boundary and waste storage, processing and disposal areas. No disposal occurs within a utility or pipeline easement or within 25 feet of the center of a utility or pipeline easement.(H) Below-grade placement. Waste is placed only below grade. The top of final cover is placed at pre-existing grade or up to three feet above pre-existing grade to ensure that natural drainage patterns are not altered and ponding of water over waste is prevented.(I) Weekly cover. Waste is covered at least weekly with six inches of earthen material not previously mixed with waste, or by tarps. Use of tarps as cover is limited to a seven-day period after which the county or municipality must replace the tarp with either waste or a six-inch layer of earthen material not previously mixed with waste. Tarps may not be used in place of soil cover requirements relating to non-RACM and RACM in subparagraph (E)(ii) and (iii) of this paragraph. Any trench that has received waste but will be inactive for more than 180 days receives intermediate cover in accordance with subparagraph (J) of this paragraph, or final cover in accordance with subparagraph (P) of this paragraph.(J) Intermediate cover. Waste is covered, including any soil weekly cover, with twelve inches of well compacted earthen material not previously mixed with waste.(K) Maximum volume. The design waste disposal volume is less than 2.5 million cubic meters in accordance with §106.534(3) of this title (relating to Municipal Solid Waste Landfills and Transfer Stations).(L) Facility signs. At all entrances through which waste is received, the facility conspicuously displays a sign with letters at least three inches in height providing a statement that the facility is "NOT FOR PUBLIC USE," an emergency 24-hour contact number that reaches an individual with the authority to obligate the facility at all times that the facility is not in operation, and the local emergency fire department number.(M) Stormwater and contaminated water. The county or municipality constructs berms to divert the 25-year/24-hour storm event from entering excavations containing waste. Water that has contacted waste is managed as contaminated water and disposed at an authorized treatment facility.(N) Reporting. The county or municipality, while not required to provide quarterly reporting, provides annual reporting in accordance with the annual reporting provisions of §330.675(a) of this title (relating to Reports).(O) Reauthorization. Before reaching the permit by rule term limit of five years, the county or municipality may request reauthorization under the permit by rule by submitting a form that is current at the time of reauthorization, provided by the commission in accordance with subparagraph (A) of this paragraph, to the executive director at least 14 days before the end of the permit term.(P) Final cover. The following conditions are met.(i) Within 60 days after a trench reaches its capacity or waste deposition activities are complete in a trench, the county or municipality installs final cover over waste in the trench. Final cover shall be composed of no less than two feet of soil. The first 18 inches or more of cover shall be of compacted clayey soil, classification sand clay (SC) or low plasticity clay (CL) as defined in the "Unified Soils Classification System" developed by the United States Army Corps of Engineers, and placed and compacted in layers of no more than six inches to minimize the potential for water infiltration. A high plasticity clayey (CH) soil may be used; however, this soil may experience excessive cracking and shall therefore be covered by a minimum of 12 inches of topsoil to retain moisture. Other types of soil may be used with prior written approval from the executive director. The final six inches of cover shall be of suitable topsoil that is capable of sustaining native plant growth and shall be seeded or sodded as soon as practicable following the application of the final cover in order to minimize erosion.(ii) The trench final cover procedures listed in clause (i) of this subparagraph are completed before facility closure, as described in subparagraph (Q) of this paragraph. If these procedures cannot be performed before the permit by rule term limit is reached, the county or municipality submits a current application form for reauthorization of the permit by rule to the executive director at least 14 days before the end of the permit term.(Q) Facility closure. The county or municipality notifies the executive director and the applicable regional office at least 60 days before the anticipated closure date of the facility. Within ten days after closure, submit to the executive director by registered mail a certified copy of an "affidavit to the public" in accordance with the requirements of §330.19 of this title (relating to Deed Recordation). In addition, record a certified notation of the deed to the facility property, or on some other instrument that is normally examined during title search, that will in perpetuity notify any potential purchaser of the property that the land has been used as a landfill facility and use of the land is restricted. Submit a certified deed to the executive director.(2) Other provisions. The following provisions also apply to this authorization.(A) Processing. This permit by rule also authorizes the processing of waste destined for the disposal unit. Authorized processing is limited to volume reduction, such as chipping or grinding, but not burning. Processing must occur within the permit boundary and may not occur within a buffer zone or right-of-way. Tires, RACM and non-RACM may not be processed. If required, the county or municipality must obtain authorization for air emissions resulting from this processing.(B) Fees. Waste that is disposed under this authorization is not subject to the fee requirements of Subchapter P of this chapter.(C) Other requirements. No other requirements under this chapter are applicable to a facility that meets all the requirements of this subsection.</content><note type="source"><p>Source Note: The provisions of this §330.7 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective August 16, 2012, 37 TexReg 6072; amended to be effective July 31, 2014, 39 TexReg 5796; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scA/s330.9"><num value="330.9">§330.9</num><heading>Registration Required</heading><content>(a) Except as provided in §§330.7, 330.11, 330.13, or 330.25 of this title (relating to Permit Required; Notification Required; Waste Management Activities Exempt from Permitting, Registration, or Notification; Relationship with County Licensing System), no person may cause, suffer, allow, or permit any activity of storage, processing, removal, or disposal of any municipal solid waste (MSW) unless that activity is authorized by a registration or other authorization from the commission. In the event this requirement is violated, the executive director may seek recourse against not only the person that stored, processed, or disposed of the waste but also against the generator, transporter, owner or operator, or other person who caused, suffered, allowed, or permitted waste to be stored, processed, or disposed. No person may commence physical construction of a new MSW management facility subject to this registration requirement without first having submitted a registration application in accordance with §§330.57, 330.59, 330.61, 330.63, and 330.65 of this title (relating to Permit and Registration Application Procedures) and received a registration from the commission. A person shall include a statement justifying the facility's eligibility for a registration as established under this section. A person shall submit a claim for a registration by rule in duplicate with one copy sent directly to the appropriate Texas Commission on Environmental Quality regional office.(b) A registration is required for an MSW transfer station facility that is used in the transfer of MSW to a solid waste processing or disposal facility from any of the following:(1) a municipality with a population of less than 50,000;(2) a county with a population of less than 85,000;(3) a facility used in the transfer of MSW that transfers or will transfer 125 tons per day or less; or(4) a transfer station located within the permitted boundaries of an MSW Type I or Type IV facility as specified in §330.5(a) of this title (relating to Classification of Municipal Solid Waste Facilities).(c) A registration is required to establish a waste-separation/recycling facility established at a permitted MSW facility if owned by the permittee.(d) A registration is required for a facility where the only operation is the storage and/or processing of used and scrap tires as provided for in Chapter 328 of this title (relating to Waste Minimization and Recycling). These facilities shall be registered with the executive director in accordance with Chapter 328 of this title. Failure to operate such registered facilities in accordance with the requirements established in Chapter 328 of this title may be grounds for the revocation of the registration.(e) A registration is required for any new MSW Type V transfer station that includes a material recovery operation that meets all of the following requirements.(1) Materials recovery. The owner or operator must recover 10% or more by weight or weight equivalent of the total incoming waste stream for reuse or recycling; ensure that the incoming waste has already been reduced by at least 10% through a source-separation recycling program; or, also operate one or more source-separation recycling programs in the county where the transfer station is located and those source-separation recycling programs manage a total weight or weight equivalent of recyclable materials equal to 10% or more by weight or weight equivalent of the incoming waste stream to all transfer stations to which credit is being applied. The owner or operator must demonstrate in the registration application the method that will be used to assure that the 10% requirement is achieved.(2) Distance to a landfill. The transfer facility must demonstrate in the registration application that it will transfer the remaining nonrecyclable waste to a landfill not more than 50 miles from the facility.(f) Except as provided in §330.11(d) of this title, a registration is required for an MSW Type V processing facility that processes only grease trap waste, grit trap waste, or septage or a combination of these three liquid wastes in accordance with either paragraph (1) or (2) of this subsection. For the purposes of this section, grit trap waste means grit trap waste from commercial car washes and excludes grit trap waste from other generators.(1) The facility must attain a 10% recovery of material for beneficial use from the incoming waste. Recovery of material for beneficial use is considered to be the recovery of fats, oils, greases, and the recovery of food solids for composting, but does not include the recovery of water. The Type V processing facilities issued a registration under a permit exemption based on 10% recovery of material for beneficial use must maintain records in accordance with the requirements of §330.219(b)(9) of this title (relating to Recordkeeping and Reporting Requirements). Records and a report must be provided on a quarterly basis to the executive director that demonstrate that at least 10% of the volume of the waste received was processed to recover solid material that was recycled or reused. Failure to achieve the relevant percent recycling rate in any two quarters within any one-year period will cause a registration to terminate and will require the owner or operator of the facility to obtain a permit to continue facility operations. The quarterly report must provide the volume received, percent solids, and the method of determining the percent solids, processed, disposed, and recycled or reused. Records must be kept on a volume basis in gallons except that solids passing the paint filter test may be reported in cubic yard volume converted to gallons. The methods of recycling or reuse must be specified in the report. Records must be kept for solids and recyclable material leaving these facilities in the form of manifests, shipping documents, or trip tickets. The quarterly report must include manifests, shipping documents, or trip tickets to show where the recyclable material was taken for recycling, and the recycled material must be reconciled with the volume of waste received. Water discharged from processing is not allowed to be counted as part of the 10% recovery of material. Recovery and recycling or reuse of fats, oils, and greases may be considered a part of recycling for this activity. Composting of solids resulting from waste processing may be considered to be recycling as part of this activity. Any material such as lime, polymer, or flocculent added as part of the facility process is not allowed to be considered as part of the 10% recovery of material from the waste stream and must be subtracted from the material considered as recycled. Diversion of material from the waste stream without processing is not considered to be recycling as part of this activity.(2) The Type V processing facility must be located at a manned treatment facility that is permitted under Texas Water Code, Chapter 26; is permitted to discharge at least one million gallons per day; and is owned by and operated for the benefit of a political subdivision of this state. Facilities that have received a permit and wish to add capacity may apply for a registration in lieu of a permit amendment if the facilities meet the registration requirements established in this chapter.(g) A registration is required for a mobile liquid waste processing unit that processes only grease trap waste, grit trap waste, or septage or a combination of these three liquid wastes. For the purposes of this section, grit trap waste means grit trap waste from commercial car washes and excludes grit trap waste from other generators. Registration applications shall contain the information specified in §§330.59(a) and (e) - (h), 330.61(a) and (b), and 330.63(a), (d)(6), (h), and (j) of this title (relating to Contents of Part I of the Application; Contents of Part II of the Application; and Contents of Part III of the Application). The following requirements also apply.(1) Mobile liquid waste processing shall be limited to the processing of liquid waste while at the generator's trap.(2) Effluent from the processing of the liquid waste must be discharged to the generator's trap or interceptor.(3) The mobile liquid waste processing units regulated under this section include truck-mounted processes that are also known as separator trucks, and any other liquid waste processes that are not considered to be fixed to a specific location.(4) This section is not meant to supplant rules or ordinances of local governments where stricter standards are in effect.(5) This section is not applicable to septage if waste has received only a pH adjustment prior to or during transportation for disposal at a treatment facility permitted under Texas Water Code, Chapter 26, or other authorized facility. Transporters who only adjust septage pH during transportation shall register in accordance with §312.142 of this title (relating to Transporter Registration).(h) A registration is required for an MSW Type VI facility that demonstrates new management methods for processing or handling grease trap waste, grit trap waste, septage, or a combination of these three liquid wastes. For the purposes of this section, grit trap waste means grit trap waste from commercial car washes and excludes grit trap waste from other generators. Those facilities meeting this exemption must obtain a registration by meeting the operational criteria and design criteria established in §330.63(d)(9) of this title.(i) A registration is required for the following material recovery operations from a landfill. The following operations are subject to the general requirements found in §330.601 of this title (relating to General Requirements), and the requirements set for soil end product standards in §330.615 of this title (relating to Final Soil Product Grades and Allowable Uses), and the air quality requirements in §330.607 of this title (relating to Air Quality Requirements):(1) operations that recover reusable or recyclable material buried in permitted or closed MSW landfill facilities, or MSW landfill facilities that were never permitted;(2) operations that reclaim soil from permitted or closed MSW landfills, or from MSW landfill facilities that were never permitted; and(3) facilities that have received prior approval for excavation of buried materials through permits, permit amendments, or other agency authorization, which are exempt from further authorization requirements, as established in this subchapter, for the specific authorization received. Soil final product standards shall be applicable for all registered facilities.(j) A registration by rule is granted for the owner or operator of a Type IX MSW facility that recovers landfill gas for beneficial use if all of the following conditions are met.(1) The owner or operator shall submit the following information at least 60 days prior to commencing operations:(A) a large-scale plan drawing of the facility showing the following:(i) facility boundaries (show permit boundaries and/or boundaries and dimensions of tract or land or closed MSW landfill units on which the gas recovery system is to be developed); and(ii) landfill gas treatment, gas compression, electrical power generation equipment, and any other beneficial gas-use equipment, indicating limits of waste placement and additional easements required;(B) for enclosed structures, provisions for fire control facilities (fire hydrants, fire extinguisher, water tanks, and waterwell), continuous methane monitoring, and explosion-proof fixtures;(C) a discussion of the proposed method for condensate disposal, including during the landfill post-closure care period;(D) an estimation of average daily gas production;(E) an estimation of the design daily gas production;(F) descriptions of the process units;(G) a cost estimate for closure following the requirements of §330.505 of this title (relating to Closure Cost Estimates for Storage and Processing Units); and(H) a description of the financial assurance mechanism required by Chapter 37, Subchapter R of this title (relating to Financial Assurance for Municipal Solid Waste Facilities).(2) The owner or operator shall acquire all authorizations regarding air emissions for the facility and comply with the following regulations:(A) Subchapter E of this chapter (relating to Operational Standards for Municipal Solid Waste Storage and Processing Units);(B) §330.459 and §330.461 of this title (relating to Closure Requirements for Municipal Solid Waste Storage and Processing Units; and Certification of Final Facility Closure); and(C) §330.505 of this title.(k) A registration is required for a new MSW transfer station that is used only in the transfer of grease trap waste, grit trap waste, septage, or other similar liquid waste if the facility used in the transfer will receive 32,000 gallons per day or less.(l) A registration is required for a new liquid waste transfer facility to be located on, or at, other commission-authorized facilities.</content><note type="source"><p>Source Note: The provisions of this §330.9 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective May 26, 2016, 41 TexReg 3735.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scA/s330.11"><num value="330.11">§330.11</num><heading>Notification Required</heading><content>(a) Except as provided by §330.13 of the title (relating to Waste Management Activities Exempt from Permitting, Registration, or Notification) and recycling facilities that notify in accordance with §328.5 of this title (relating to Reporting and Recordkeeping Requirements), a person that intends to store, process, or dispose of municipal solid waste (MSW) without a permit as authorized by §330.7 of this title (relating to Permit Required), registration as authorized by §330.9 of this title (relating to Registration Required), or §330.25 of this title (relating to Relationship with County Licensing System), shall notify the executive director, and any local pollution agency with jurisdiction that has requested to be notified, in writing, that storage, processing, or disposal activities are planned, at least 90 days prior to engaging in these activities, except for recycling and other activities as may be specifically exempted. Additional information may be requested to enable the executive director to determine whether such storage, processing, or disposal is in compliance with the terms of this chapter. This information may include, but is not limited to, type of waste, waste management methods, facility engineering plans and specifications, and the geology and hydrogeology at the facility. Any information provided under this subsection shall be submitted to the executive director in duplicate with one copy sent directly to the Texas Commission on Environmental Quality (TCEQ) regional office. A person shall include a statement justifying the facility's eligibility for a notification as established under this section.(b) Any person that stores, processes, or disposes of MSW shall have the continuing obligation to provide prompt written notice to the executive director of any changes or additional information concerning waste type, waste management methods, facility engineering plans and specifications, and geology and hydrogeology at the facility additional to that reported in subsection (a) of this section, authorized in any permit or registration, or stated in any application filed with the executive director. Any information provided under this subsection shall be submitted to the executive director in duplicate form with copies sent directly to the TCEQ's regional office and any local pollution agency with jurisdiction that has requested to be notified.(c) A person that stores, processes, or disposes of MSW shall notify the executive director, and any local pollution agency with jurisdiction that has requested to be notified, in writing of any closure activity or activity of facility expansion not authorized by permit or registration, at least 90 days prior to conducting this activity. The executive director may request additional information to determine whether such activity is in compliance with this chapter. Any information provided under this subsection shall be submitted to the executive director in duplicate form.(d) A notification is required for the storage or processing of the following types of MSW: grease trap wastes; grit trap wastes; or septage that contains free liquids if the waste is treated/processed at a permitted Type I MSW facility.(e) A notification is required for the following facilities or locations:(1) a citizens' collection station;(2) a collection and processing point for only nonputrescible source-separated recyclable material, provided that the facility is in compliance with §§328.3 - 328.5 of this title (relating to General Requirements; Limitations on Storage of Recyclable Materials; and Reporting and Recordkeeping Requirements);(3) a facility to treat petroleum-contaminated soil if the contaminated soil is treated/processed at a permitted Type I MSW facility;(4) an MSW transfer station in existence prior to the comprehensive rule revisions in this chapter as adopted in 2006 (2006 Revisions) that is used only in the transfer of grease trap waste, grit trap waste, septage, or other similar liquid waste if the facility used in the transfer will receive 32,000 gallons per day or less. These liquid waste transfer stations must be designed and operated in accordance with the requirements of Subchapter E of this chapter (relating to Operational Standards for Municipal Solid Waste Storage and Processing Units);(5) a temporary storage facility regulated under §312.147 of this title (relating to Temporary Storage) that stores 8,000 gallons or less for a period of four days or less in containers. This facility is not required to follow the requirements of Subchapter E of this chapter;(6) a liquid waste transfer facility in existence prior to the effective date of the 2006 Revisions located on or at other commission authorized facilities if the facility is designed and operated in accordance with the requirements of Subchapter E of this chapter; or(7) a pet cemetery. A person that intends to operate a pet cemetery shall comply with the requirements of §330.19 of this title (relating to Deed Recordation) and shall ensure that the animal carcasses are covered with at least two feet of soil within a time period that will prevent the generation of nuisance odors or health risks. A pet cemetery is a facility used only for the burial of domesticated animals kept as pets and service animals such as seeing-eye dogs. Animals raised for meat production or used only for animal husbandry may not be disposed of in a pet cemetery authorized under this subsection.(f) An operator is required to notify the commission of the intended operation of a low-volume transfer station subject to the following conditions.(1) The operator must own or otherwise effectively control the facility.(2) Prior to notification, the operator must coordinate with the county authority to ensure compliance with all appropriate ordinances.(3) The operator must notify the adjacent landowners, by first-class mail, concurrent with commission notification.(4) Collected waste shall be sent off-site to an authorized facility at least weekly.</content><note type="source"><p>Source Note: The provisions of this §330.11 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective May 26, 2016, 41 TexReg 3735.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scA/s330.13"><num value="330.13">§330.13</num><heading>Waste Management Activities Exempt from Permitting, Registration, or Notification</heading><content>(a) A permit, registration, notification, or other authorization is not required for the disposal of up to 2,000 pounds per year of litter or other solid waste generated by an individual on that individual's own land and is not required to comply with §330.19 of this title (relating to Deed Recordation) provided that:(1) the litter or waste is generated on land that the individual owns;(2) the litter or waste is not generated as a result of an activity related to a commercial purpose;(3) the disposal occurs on land that the individual owns;(4) the disposal is not for a commercial purpose;(5) the waste disposed of is not hazardous waste or industrial waste;(6) the waste disposal method complies with Chapter 111, Subchapter B of this title (relating to Outdoor Burning); and(7) the waste disposal method does not contribute to a nuisance and does not endanger the public health or the environment. Exceeding 2,000 pounds per individual's residence per year is considered to be a nuisance.(b) A permit, registration, notification, or other authorization is not required for the disposal of animal carcasses from government roadway maintenance where:(1) either of the following:(A) the animals were killed on county or municipal roadways and the carcasses are buried on property owned by the entity that is responsible for road maintenance; or(B) the animals were killed on state highway rights-of-way and the carcasses are disposed of by the Texas Department of Transportation by burying the carcasses on state highway rights-of-way; and(2) the waste disposal method does not contribute to a nuisance and does not endanger the public health or the environment; and(3) the animal carcasses are covered with at least two feet of soil within 24 hours of collection in accordance with §330.171(c)(2) of this title (relating to Disposal of Special Wastes).(c) A permit, registration, notification, or other authorization is not required for veterinarians performing activities as authorized by Texas Occupations Code, §801.361, Disposal of Animal Remains. Disposal by burning under this section must comply only with §111.209(3) of this title (relating to Exception for Disposal Fires).(d) Except as required by §330.7(c)(2) and §330.9(a) of this title (relating to Permit Required; and Registration Required), a permit, registration, notification, or other authorization is not required for transporters of municipal solid waste.(e) A permit, registration, notification, or other authorization is not required for a collection point for parking lot or street sweepings or wastes collected and received in sealed plastic bags from such activities as periodic city-wide cleanup campaigns and cleanup of rights-of-way or roadside parks.(f) A permit, registration, notification, or other authorization is not required from a car wash facility for drying grit trap waste as long as these wastes are dried and disposed of in compliance with applicable federal, state, and local regulations. Grit trap waste from car wash facilities may be transported for drying purposes to other property if the car wash facility and the property with the drying bed have the same owner and if the facilities are located within 50 miles of each other. This subsection is not intended to preempt or supersede local government regulation of grit trap waste-drying facilities. Drying facilities must comply with Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) if applicable.(g) A permit, registration, notification, or other authorization is not required for an advanced recycling facility that processes recoverable feedstocks into valuable raw materials, valuable intermediate products, or valuable final products through pyrolysis, gasification, solvolysis, or depolymerization. The owner or operator of an advanced recycling facility shall keep records onsite to demonstrate:(1) that the primary function of the facility is to convert materials into products for subsequent beneficial use; and(2) that all solid waste generated from converting materials has been disposed of at a disposal facility authorized by the commission to accept and dispose of the solid waste, with the exception of small amounts of solid waste that may be inadvertently and unintentionally disposed of in another manner. Such documentation shall include a description of the type and volume of solid waste generated, the date(s) and volumes of waste transported off-site, the name and permit or other authorization number of each transporter and authorized disposal facility, and the address of each authorized disposal facility.</content><note type="source"><p>Source Note: The provisions of this §330.13 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective May 26, 2016, 41 TexReg 3735; amended to be effective October 29, 2020, 45 TexReg 7605; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scA/s330.15"><num value="330.15">§330.15</num><heading>General Prohibitions</heading><content>(a) A person may not cause, suffer, allow, or permit the collection, storage, transportation, processing, or disposal of municipal solid waste (MSW), or the use or operation of a solid waste facility to store, process, or dispose of solid waste, or to extract materials under Texas Health and Safety Code, §361.092, in violation of the Texas Health and Safety Code, or any regulations, rules, permit, license, order of the commission, or in such a manner that causes:(1) the discharge or imminent threat of discharge of MSW into or adjacent to the waters in the state without obtaining specific authorization for the discharge from the commission;(2) the creation and maintenance of a nuisance; or(3) the endangerment of the human health and welfare or the environment.(b) MSW land disposal facilities (Types I, IAE, IV, IVAE, and VI) failing to satisfy the applicable requirements of this chapter, unless exempted by this chapter, are considered open dumps for purposes of state solid waste management planning under the Resource Conservation and Recovery Act and are prohibited under Resource Conservation and Recovery Act, §4005(a).(c) Except as otherwise authorized by this chapter, a person may not cause, suffer, allow, or permit the dumping or disposal of MSW without the written authorization of the commission.(d) The open burning of solid waste, except for the infrequent burning of waste generated by land-clearing operations, agricultural waste, silvicultural waste, diseased trees, emergency cleanup operations as authorized by the commission or executive director as appropriate, is prohibited at any MSW landfill. The operation of an air curtain incinerator as allowed in §330.7(g) of this title (relating to Permit Required) other than for the exceptions noted in the previous sentence, is prohibited.(e) The following wastes are prohibited from disposal in any MSW facility.(1) A lead acid storage battery shall not be intentionally or knowingly offered by a generator or transporter for disposal at an MSW landfill or incinerator, and/or shall not be intentionally or knowingly accepted for disposal at an MSW landfill or incinerator permitted under this chapter.(A) Each battery improperly disposed of constitutes a separate violation and offense.(B) A person that violates the provisions of this paragraph is subject to the criminal and/or civil penalties found in the Texas Health and Safety Code, as amended.(2) Do-it-yourself used motor vehicle oil shall not be intentionally or knowingly offered by a generator or transporter for disposal at an MSW landfill or MSW incinerator, either by itself or mixed with other solid waste, and/or shall not be intentionally or knowingly accepted for disposal at an MSW landfill or MSW incinerator permitted under this chapter.(A) It is an exception to this subsection if the mixing or commingling of used oil with solid waste that is to be disposed of in a landfill is incidental to, and the unavoidable result of, the mechanical shredding of motor vehicles; appliances; or other items of scrap, used, or obsolete metals.(B) A person that violates the provisions of this paragraph is subject to the criminal and/or civil penalties found in the Texas Health and Safety Code, as amended.(3) Used oil filters from internal combustion engines shall not be offered for landfill disposal by any generator and shall not be intentionally or knowingly accepted for disposal at a landfill permitted under this chapter.(4) Whole used or scrap tires shall not be accepted for disposal or disposed of in any MSW landfill, unless processed prior to disposal in a manner acceptable to the executive director.(5) Refrigerators, freezers, air conditioners, and any other items containing chlorinated fluorocarbon (CFC) must be handled in accordance with 40 Code of Federal Regulations §82.156, as amended.(6) Except as allowed in §330.177 of this title (relating to Leachate and Gas Condensate Recirculation), liquid waste as defined in §330.3 of this title (relating to Definitions) and as described in subparagraphs (A) and (B) of this paragraph below shall not be disposed of in any MSW landfill unit.(A) Bulk or noncontainerized liquid waste shall not be accepted for disposal or disposed of in an MSW landfill unless the waste is household waste other than septic waste.(B) Containers holding liquid waste shall not be accepted for disposal or disposed of in an MSW landfill unless:(i) the container is a small container similar in size to that normally found in household waste;(ii) the container is designated to hold liquids for use other than storage; or(iii) the waste is household waste.(7) Regulated hazardous waste as defined in §330.3 of this title shall not be accepted at an MSW facility.(8) Polychlorinated biphenyls (PCB) wastes, as defined under 40 Code of Federal Regulations Part 761, shall not be accepted for disposal or disposed of in an MSW facility unless authorized by the United States Environmental Protection Agency and the MSW permit.(9) Radioactive materials as defined in Chapter 336 of this title (relating to Radioactive Substance Rules), except as authorized in Chapter 336 of this title or that are subject to an exemption of the Department of State Health Services shall not be accepted at an MSW facility.(f) MSW facilities receiving sewage sludge and failing to satisfy the criteria of this chapter violate Federal Clean Water Act, §309 and §405(e).(g) The drilling of any test borings, for any reason, through previously deposited waste or cover material without prior written authorization from the executive director is prohibited.(h) An MSW facility shall not cause:(1) a discharge of solid wastes or pollutants adjacent to or into waters of the state, including wetlands, that is in violation of the requirements of Texas Water Code, §26.121;(2) a discharge of pollutants into waters of the United States, including wetlands, that violates any requirements of the Federal Clean Water Act, including, but not limited to, the National Pollutant Discharge Elimination System requirements, under §402, as amended, or Texas Pollutant Discharge Elimination System requirements;(3) a discharge of dredged or fill material to waters of the United States, including wetlands, that is in violation of the requirements under Federal Clean Water Act, §404, as amended; and(4) a discharge of a nonpoint source pollution into waters of the United States, including wetlands, that violates any requirement of an area-wide or state-wide water quality management plan that has been approved under Federal Clean Water Act, §208 or §319, as amended.(i) Processing of liquid waste as defined in §330.3 of this title, other than that incidental to transfer and storage, at a transfer station without a specific Type V processing authorization is prohibited.</content><note type="source"><p>Source Note: The provisions of this §330.15 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scA/s330.17"><num value="330.17">§330.17</num><heading>Technical Guidelines</heading><content>In order to promote the proper collection, handling, storage, processing, and disposal of municipal solid waste in a manner consistent with the purpose of the Texas Health and Safety Code and 40 Code of Federal Regulations Parts 257 and 258 as amended, the executive director will make available technical guidelines outlining acceptable methods designed to aid in compliance with this chapter. Guidelines should be considered as suggestions only.</content><note type="source"><p>Source Note: The provisions of this §330.17 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scA/s330.19"><num value="330.19">§330.19</num><heading>Deed Recordation</heading><content>(a) Recording required. A person may not cause, suffer, allow, or permit the disposal of municipal solid waste prior to recording, in the county deed records of the county or counties in which the disposal takes place, a metes and bounds description of the portion or portions of the tract of land on which disposal of solid waste will take place.(b) Proof of recordation. A certified copy of the recorded document shall be provided to the executive director prior to instituting disposal operations.(c) Final recording. Upon completion of the disposal operation, closure of all landfill units, or final closure of the facility or site, or upon discovery of a closed municipal solid waste landfill or dumping area, the owner or operator shall file an "Affidavit to the Public" in a form provided by the executive director that includes an updated metes and bounds description of the extent of the disposal areas and the restrictions to future use of the land in accordance with §330.457(g) of this title (relating to Closure Requirements for Municipal Solid Waste Landfill Units that Receive Waste on or after October 9, 1993) and §330.461(c)(1) of this title (relating to Certification of Final Facility Closure).</content><note type="source"><p>Source Note: The provisions of this §330.19 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scA/s330.21"><num value="330.21">§330.21</num><heading>Closure</heading><content>(a) Except for those persons subject to §330.13 of this title (relating to Waste Management Activities Exempt from Permitting, Registration, or Notification), a person is obligated to perform closure or remediation for a facility or area that contains municipal solid waste. The person can fulfill this obligation by meeting the remedy standards of Chapter 350 of this title (relating to Texas Risk Reduction Program). The regulations in Chapter 350 of this title supplement, but do not replace, any requirements for closure or remediation specified in subsections (b) and (c) of this section.(b) Any person that stores, processes, or disposes of municipal solid waste at a facility permitted under §330.7 of this title (relating to Permit Required), or registered under §330.9 of this title (relating to Registration Required) shall, unless specifically authorized by the commission, close the facility in accordance with the closure provisions of the permit or registration.(c) Any person that stores, processes, or disposes of municipal solid waste is subject to the applicable provisions in Subchapter K of this chapter (relating to Closure and Post-Closure).</content><note type="source"><p>Source Note: The provisions of this §330.21 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scA/s330.23"><num value="330.23">§330.23</num><heading>Relationships with Other Governmental Entities</heading><content>(a) Texas Department of Transportation (TxDOT). The executive director shall coordinate with TxDOT on the review of all permit applications for municipal solid waste (MSW) land disposal facilities existing or proposed within 1,000 feet of an interstate or primary highway to determine the need for screening or special operating requirements. When primary access to an MSW disposal facility is provided by state-maintained streets or highways, the executive director shall solicit recommendations from TxDOT regarding the adequacy and design capacity of such roadways to safely accommodate the additional volumes and weights of traffic generated or expected to be generated by the facility operation.(b) United States Army Corps of Engineers. The executive director shall coordinate the review of all permit applications for MSW disposal facilities with the appropriate district engineer to determine the need for a permit from the Corps of Engineers.(c) Federal Aviation Administration (FAA). The executive director shall coordinate the review of permit applications for all MSW land disposal facilities existing or proposed in the vicinity of airports with the appropriate airports' district office of the FAA (FAA Advisory Circular 150/5200-33C, "Hazardous Wildlife Attractants on or Near Airports," February 21, 2020).(d) Special districts. The Texas Health and Safety Code (THSC) applies to political subdivisions of the state to which the legislature has given waste handling authority for two or more counties. The relationship between the agency and any such waste handling authority will be similar to that between the agency and a county.(e) Regional planning agencies. The agency will provide educational, technical, and advisory assistance to the various councils of governments and regional planning commissions throughout the state.(f) Municipal governments. Municipalities may enforce the provisions of this chapter as provided for in the THSC and the Texas Water Code. The commission is committed to assisting municipal governments in an educational and advisory capacity. The commission is a necessary and indispensable party to any suit filed by a local government under the THSC and the Texas Water Code.(g) County governments. County governments may exercise the authority provided in THSC, Chapters 361, 363, and 364, regarding the management of solid waste including the enforcement of the requirements of the THSC and this chapter. The provisions of THSC, Chapters 361, 363, and 364, allow county governments to require and issue licenses authorizing and governing the operation and maintenance of facilities used for the storage, processing, or disposal of solid waste not in the territorial or extraterritorial jurisdiction of a municipality. THSC, Chapters 361, 363, and 364, provide that no license for disposal of solid waste may be issued, renewed, or extended without the prior approval of the commission. Under Texas Water Code, Chapter 7, the commission is a necessary and indispensable party to any suit filed by a local government for the violation of any provision of the Solid Waste Disposal Act. If a permit is issued, renewed, or extended by the commission, the owner or operator of the facility does not need to obtain a separate license for the same facility from a county or from a political subdivision as defined in THSC, Chapters 361, 363, and 364.(h) Texas Parks and Wildlife Department (TPWD). TPWD has jurisdiction over certain environmental issues that may be affected by MSW facilities including, but not limited to, endangered species and wetlands. The executive director will solicit comments from, and consider information provided by, TPWD.</content><note type="source"><p>Source Note: The provisions of this §330.23 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scA/s330.25"><num value="330.25">§330.25</num><heading>Relationship with County Licensing System</heading><content>(a) General procedures. Under Texas Health and Safety Code, Chapters 361, 363, and 364, counties are empowered to require and issue licenses authorizing and governing the operation and maintenance of solid waste storage, processing, or disposal facilities not within the territorial limits or extraterritorial jurisdiction of incorporated cities and towns. The county shall mail a copy of the approved license to the appropriate Texas Commission on Environmental Quality regional office. No license for the use of a facility for the disposal of solid waste may be issued, renewed, or extended without prior approval of the commission. The territorial limits and the extraterritorial jurisdiction of incorporated cities and towns are excluded from county authority to make regulations for the governing and controlling of solid waste collection, handling, storage, and disposal.(b) Licensing procedures. The following pertain only to those counties that may choose to exercise licensing authority in accordance with this section.(1) Licensing authority.(A) Before exercising licensing authority for a municipal solid waste (MSW) facility required to obtain a permit, a county government shall promulgate regulations that are consistent with those established by the commission and that have been approved by the commission. A county exercising authority shall use the same evaluation processes as prescribed for use by the commission to include providing appropriate agencies, in accordance with §330.23 of this title (relating to Relationships with Other Governmental Entities) and Subchapter B of this chapter (relating to Permit and Registration Application Procedures), an opportunity to review and comment on those applications for which they may have a jurisdictional interest. In view of the technical evaluations and site investigations that must be made by some review agencies, ample time shall be allowed to receive and review agency comments prior to a public hearing. To ensure that review agencies are provided sufficient information on which to base a determination, counties will include in their permit application forms the data requirements as specified in permit applications used by the commission, supplemented by any other requirements deemed necessary by the individual counties.(B) Before exercising licensing authority for an MSW facility that is not required to obtain a permit, a county government shall promulgate regulations that are compatible with those established by the commission. The county's regulations must be submitted to the commission for approval. At a minimum, county regulations shall be protective of human health and the environment.(C) A county may not make regulations for MSW management within the extraterritorial or territorial jurisdiction of incorporated cities or towns.(D) The commission will issue permits for MSW facilities located within the extraterritorial or territorial jurisdiction of incorporated cities or towns within the county.(E) A county license for an MSW facility may not be issued, extended, or renewed without prior approval of the commission.(F) Once a license is issued by a county and remains valid, a permit from the commission is not required.(2) Public meeting. A county shall offer an opportunity for a public meeting and offer an opportunity for a public hearing, and issue appropriate notifications, in accordance with the procedures established in Chapter 39, Subchapter H of this title (relating to Applicability and General Provisions) and this chapter prior to issuance, amendment, extension, revocation, or renewal of a license.(c) Contents of a license. A license for a solid waste facility issued by a county must include:(1) the name and address of each person that owns the land on which the solid waste facility is located and the person that is or will be the operator or person in charge of the facility;(2) a legal description of the land on which the facility is located;(3) the terms and conditions on which the license is issued, including the duration of the license; and(4) the volume of waste to be managed.(d) Licensee's responsibilities. Solid waste facilities licensed by a county shall be operated in compliance with regulations of the commission and the county.</content><note type="source"><p>Source Note: The provisions of this §330.25 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scB"><num value="B">SUBCHAPTER B</num><heading>PERMIT AND REGISTRATION APPLICATION PROCEDURES</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scB/s330.53"><num value="330.53">§330.53</num><heading>Pre-application Review</heading><content>(a) Applicability. This section applies to potential permit owners or operators who desire to enter into agreements with affected persons and/or identify issues of local concern prior to submission of an application. A pre-application review process may be useful in situations where opposition to an application is likely to exist.(b) Purpose. A pre-application review should serve to identify issues of concern, facilitate communication between a potential owner or operator and persons that would be affected by an application, and resolve as many points of conflict as possible prior to the submission of an application. A local review committee shall:(1) interact with the owner or operator in a structured manner during the pre-application review stage of the permitting process and, if necessary, during the technical review stage of the permitting process, raise and attempt to resolve both technical and nontechnical issues of concern; and(2) produce a fact-finding report documenting resolved and unresolved issues and unanswered questions. The owner or operator shall submit this report to the executive director with the owner's or operator's permit application.(c) Procedure.(1) If an owner or operator decides to participate in a local review committee process, the owner or operator shall file three copies of a notice of intent to file an application with the executive director. The filing of this notice initiates the pre-application review process. The date of filing shall be the date the notice is stamped as received by the executive director. An owner or operator who wishes to have a pre-application meeting under the provisions of Texas Health and Safety Code, §361.0635, should include a draft Part I, as described in §330.59 of this title (relating to Contents of Part I of the Application) with their request.(2) Upon receipt of the notice of intent to file, the executive director shall forward a copy of the notice and an explanation of the local review committee process by certified mail to:(A) the appropriate mayor and county judge if the proposed facility is to be located within the corporate limits or extraterritorial jurisdiction of a city; or(B) the appropriate county judge if the proposed facility is to be located within an unincorporated area of the county; and(C) the appropriate regional solid waste planning agency and council of governments (COG).(3) Local review committees shall be composed of representatives of both local and regional interests and shall consist optimally of 12 individuals. However, an owner or operator may request a larger committee to better represent all interest groups present in a community or a smaller committee for economic reasons; however, committees shall maintain a 2:1 ratio of regional appointments to local appointments. Appointments to the local review committee shall be made according to the following guidelines.(A) If a proposed facility is to be located within a particular city's limits, the mayor of the city shall be asked to make all local appointments.(B) If a proposed facility is to be located in an unincorporated area, but within five miles of a city or cities, the mayor of each affected city shall be asked to appoint one member. The appropriate county judge shall be asked to appoint at least one member who lives within five miles of the proposed facility, if available and qualified. The county judge shall also be asked to appoint any remaining individuals necessary to complete local appointments to the committee.(C) If a proposed facility would not be within five miles of a city, the appropriate county judge shall appoint at least one member, if available and qualified, who lives within five miles of the proposed facility and as many other individuals from the county as are necessary to complete the local appointments.(D) Regional appointments shall be made by the appropriate regional solid waste planning agency/COG or another regional entity such as a special district or river authority designated by the COG. An attempt shall be made to make regional appointments from as many of the following interest groups as possible:(i) organized environmental groups;(ii) citizen organizations active in environmental issues;(iii) industry, preferably, but not necessarily, individuals with expertise in waste management;(iv) academic community, preferably, but not necessarily, individuals trained in a technical discipline related to waste management and/or public involvement;(v) community or land-use planning;(vi) organized public-interest advocates; and(vii) public health professionals.(E) If any local official or regional entity has failed to make the necessary appointments within 15 days after the notice of intent to file has been submitted, the owner or operator may cease the local review process.(F) Every effort should be made to appoint individuals who are willing to participate in good faith, able to devote adequate time to participation, and respected in the community or region. An elected official shall not be appointed to the committee if the official is elected by a constituency wholly or partly within the localities surrounding the facility, and appointees shall not be employees or agents of the owner or operator.(G) An individual shall not serve on more than one local review committee at any one time.(4) The local review committee shall meet within 21 days after the notice of intent is filed. The executive director will provide manuals to committee members that will orient them as to what the committee's activities should be, i.e., the production of a report detailing issues resolved, issues unresolved, and questions not able to be answered.(5) The pre-application review process shall continue for a maximum of 90 days unless it is shortened or lengthened by mutual agreement between the owner or operator and the local review committee.(6) Individuals who serve on local review committees shall serve without compensation. The potential owner or operator shall provide resource support that may include clerical and technical assistance, a facilitator, meeting space, and/or other items that may be necessary to aid the committee in its work.(d) Committee report.(1) Any report produced by a local review committee set up under this section shall be submitted to the executive director with the owner's or operator's permit application. The executive director may consider the report as an additional source of information concerning the application.(2) The report shall not recommend approval or disapproval of the proposed facility. Rather, it shall describe the committee's work and summarize the committee's findings. The findings shall include issues resolved, issues unresolved, and questions not able to be answered.</content><note type="source"><p>Source Note: The provisions of this §330.53 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scB/s330.55"><num value="330.55">§330.55</num><heading>Other Authorizations</heading><content>(a) Air pollution control. The construction and operation of waste management facilities shall comply with Subchapter U of this chapter (relating to Standard Air Permits for Municipal Solid Waste Landfill Facilities and Transfer Stations) or other approved air authorizations. Owners or operators of these types of facilities should consult with the Air Permits Division on or before the date that the municipal solid waste application is filed with the executive director.(b) Water pollution control. All liquids resulting from the operation of solid waste facilities shall be disposed of in a manner that will not cause surface water or groundwater pollution. Facilities shall provide for the treatment of wastewaters resulting from waste management activities and from cleaning and washing. Owners or operators shall ensure that storm water and wastewater management is in compliance with the regulations of the commission.</content><note type="source"><p>Source Note: The provisions of this §330.55 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scB/s330.57"><num value="330.57">§330.57</num><heading>Permit and Registration Applications for Municipal Solid Waste Facilities</heading><content>(a) Permit application. The application for a municipal solid waste facility is divided into Parts I - IV. Parts I - IV of the application shall be required before the application is declared administratively complete in accordance with Chapter 281 of this title (relating to Applications Processing). The owner or operator shall submit a complete application, containing Parts I - IV, before a hearing can be conducted on the technical design merits of the application. An owner or operator applying for a permit may request a land-use only determination. If the executive director determines that a land-use only determination is appropriate, the owner or operator shall submit a partial application consisting of Parts I and II of the application. The executive director may process a partial permit application to the extent necessary to determine land-use compatibility alone. If the facility is determined to be acceptable on the basis of land use, the executive director will consider technical matters related to the permit application at a later time. When this procedure is followed, an opportunity for a public hearing will be offered for each determination in accordance with §39.419 of this title (relating to Notice of Application and Preliminary Decision). A complete application, consisting of Parts I - IV of the application, shall be submitted based upon the results of the land-use only public hearing. Owners or operators of Type IAE and Type IVAE municipal solid waste landfill units are required to submit all parts of the application except for those items pertaining to Subchapters H and J of this chapter (relating to Liner System Design and Operation; and Groundwater Monitoring and Corrective Action). Owners or operators of Type IAE and Type IVAE municipal solid waste landfill units are exempt from the geology report requirements of §330.63(e) of this title (relating to Contents of Part III of the Application) except for the requirement to submit a soil boring plan in accordance with §330.63(e)(4) and (e)(4)(A) of this title, and the information requested in §330.63(e)(6) of this title.(b) Registration application. A registration application for a municipal solid waste facility is also divided into Parts I - IV, but is not subject to a hearing request or to the administrative completeness determinations of Chapter 281 of this title.(c) Parts of the application.(1) Part I of the application consists of the information required in §281.5 of this title (relating to Application for Wastewater Discharge, Underground Injection, Municipal Solid Waste, Radioactive Material, Hazardous Waste, and Industrial Solid Waste Management Permits), §305.45 of this title (relating to Contents of Application for Permit), and §330.59 of this title (relating to Contents of Part I of the Application).(2) Part II of the application describes the existing conditions and character of the facility and surrounding area. Part II of the application shall consist of the information contained in §330.61 of this title (relating to Contents of Part II of the Application). Parts I and II of a permit application must provide information relating to land-use compatibility under the provisions of Texas Health and Safety Code, §361.069. Part II may be combined with Part I of the application or may be submitted as a separate document. An owner or operator must submit Parts I and II of the permit application before a land-use determination is made in accordance with subsection (a) of this section.(3) Part III of the application contains design information, detailed investigative reports, schematic designs of the facility, and required plans. Part III shall consist of the documents required in §330.63 of this title.(4) Part IV of the application contains the site operating plan that shall discuss how the owner or operator plans to conduct daily operations at the facility. Part IV shall consist of the documents required in §330.65 of this title (relating to Contents of Part IV of the Application).(d) Required information. The information required by this subchapter defines the basic elements for an application. All aspects of the application and design requirements must be addressed by the owner or operator, even if only to show why they are not applicable for that particular site. It is the responsibility of the applicant to provide the executive director data of sufficient completeness, accuracy, and clarity to provide assurance that operation of the site will pose no reasonable probability of adverse effects on the health, welfare, environment, or physical property of nearby residents or property owners. Failure of the owner or operator to provide complete information as required by this chapter may be cause for the executive director to return the application without further action in accordance with §281.18 and §281.19 of this title (relating to Applications Returned and Technical Review). Submission of false information shall constitute grounds for denial of the permit or registration application.(e) Number of copies.(1) Applications shall be initially submitted in two paper copies and one accurate duplicate in electronic format. The owner or operator shall furnish additional copies of the application for use by required reviewing agencies, upon request of the executive director.(2) The accurate duplicate in electronic format shall meet the application formatting and drawing requirements of the paper copy.(3) For permit applications initially submitted to the executive director, the owner or operator shall also furnish Parts I and II, and any subsequent revisions to Parts I and II, to the regional council of governments.(f) Preparation. Preparation of the application must conform with Texas Occupations Code, Texas Engineering Practice Act, Chapter 1001 and Texas Geoscience Practice Act, Chapter 1002.(1) The responsible engineer shall seal, sign, and date the title page of each bound engineering report or individual engineering plan in the application and each engineering drawing as required by Texas Engineering Practice Act, §15c, and in accordance with 22 TAC §137.33 (relating to Sealing Procedures).(2) The responsible geoscientist shall seal, sign, and date applicable items as required by Texas Geoscience Practice Act, §6.13(b), and in accordance with 22 TAC §851.156 (relating to Professional Geoscientist Seals and Geoscience Firm Identification).(3) Applications that have not been sealed shall be considered incomplete for the intended purpose and shall be returned to the owner or operator.(g) Application format.(1) Paper applications shall be submitted in three-ring, "D"-ring, loose-leaf binders.(2) The title page shall show the name of the project; the municipal solid waste permit application number, if known; the name of the owner and operator; the location by city and county; the date the part was prepared; and, if appropriate, the number and date of the revision. It shall be sealed as required by the Texas Engineering Practice Act.(3) The table of contents shall list and give the page numbers for the main sections of the application. It shall be sealed as required by the Texas Engineering Practice Act.(4) The narrative of the report shall be printed on 8-1/2 by 11 inches white paper. Drawings or other sheets shall be no larger than 11 by 17 inches so that they can be reproduced by standard office copy machines.(5) All pages shall contain a page number and date.(6) Revisions shall have the revision date and note that the sheet is revised in the header or footer of each revised sheet. The revised text shall be marked to highlight the revision.(7) Use dividers and tabs.(h) Application drawings.(1) All information contained on a drawing shall be legible, even if it has been reduced. The drawings shall be 8-1/2 by 11 inches or 11 by 17 inches. Standard-sized drawings (24 by 36 inches) folded to 8-1/2 by 11 inches may be submitted or required if reduction would render them illegible or difficult to interpret.(2) If color coding is used, it should be legible and the code distinct when reproduced on black and white photocopy machines.(3) Drawings shall be submitted at a standard engineering scale.(4) Each drawing shall have a:(A) dated title block;(B) bar scale at least one-inch long;(C) revision block;(D) responsible engineer's or geoscientist's seal, if required; and(E) drawing number and a page number.(5) Each map or plan drawing shall also have:(A) a north arrow. Preferred orientation is to have the north arrow pointing toward the top of the page;(B) a reference to the base map source and date, if the map is based upon another map. The latest published edition of the base map should be used; and(C) a legend.(6) Match lines and section lines shall reference the drawing where the match or section is shown. Section drawings should note from where the section was taken.(i) Posting application information.(1) The commission shall post on its website the accurate duplicate electronic application(s).(2) For applications for new permits or major amendments, an owner or operator shall post notice signs at the site within 30 days of the executive director's receipt of an application. This sign posting is for informational purposes only. Signs must:(A) consist of dark lettering on a white background and must be no smaller than four feet by four feet with letters at least three inches in height and block printed capital lettering;(B) identify as appropriate that the application is for a proposed permitted facility or an amendment to a permitted facility;(C) include the words "For further information on how the public may participate in Texas Commission on Environmental Quality (TCEQ) permitting matters, contact TCEQ," the toll free telephone number for the Public Education Program, and the agency's website address;(D) include the name and address of the owner or operator;(E) include the telephone number of the owner or operator; and(F) remain in place and legible until the close of the final comment period.(3) Signs must be located within ten feet of every property line bordering a public highway, street, or road. Signs must be visible from the street and spaced at not more than 1,500-foot intervals. A minimum of one sign, but no more than three signs, shall be required along any property line parallel to a public highway, street, or road. This paragraph's sign requirements do not apply to properties under the same ownership that are noncontiguous or separated by intervening public highway, street, or road, unless the property is part of the permitted facility.(4) The owner or operator shall also post signs at the facility in an alternative language when the alternative language requirements in §39.426 of this title (relating to Alternative Language Requirements) are met.(5) The executive director may approve variances from the requirements of paragraphs (2), (3), and (4) of this subsection if the owner or operator has demonstrated that it is not practical to comply with the specific requirements of those paragraphs and alternative sign posting plans proposed by the owner or operator are at least as effective in providing notice to the public. Approval from the executive director under this paragraph must be received before posting alternative signs for purposes of satisfying the requirements of this subsection.</content><note type="source"><p>Source Note: The provisions of this §330.57 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective May 29, 2008, 33 TexReg 4176; amended to be effective May 14, 2020, 45 TexReg 3119; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scB/s330.59"><num value="330.59">§330.59</num><heading>Contents of Part I of the Application</heading><content>(a) General.(1) Part I of the application consists of information that is required regardless of the type of facility involved. All items required by this section, §281.5 of this title (relating to Application for Wastewater Discharge, Underground Injection, Municipal Solid Waste, Radioactive Material, Hazardous Waste, and Industrial Solid Waste Management Permits) and §305.45 of this title (relating to Contents of Application for Permit) must be submitted.(2) Submittal of Part I by itself will not necessarily require publication of a notice of intent to obtain a municipal solid waste (MSW) permit under the provisions of Texas Health and Safety Code (THSC), §361.0665, or a notice concerning receipt of a permit application under the provisions of THSC, §361.079.(3) For a permit application, submittal of Part I only will not allow a permit application to be declared administratively complete under the provisions of THSC, §361.068; §281.3 of this title (relating to Initial Review); and §281.18 of this title (relating to Applications Returned).(b) Facility location. The owner or operator shall:(1) provide a description of the location of the facility with respect to known or easily identifiable landmarks;(2) detail the access routes from the nearest United States or state highway to the facility; and(3) provide the longitudinal and latitudinal geographic coordinates of the facility.(c) Maps.(1) General. The maps submitted as a group shall show the elements contained in §305.45 of this title and the following:(A) latitudes and longitudes; and(B) the property boundary of the facility.(2) General location maps. These maps shall be all or a portion of county maps prepared by Texas Department of Transportation (TxDOT). At least one general location map shall be at a scale of one-half inch equals one mile. If TxDOT publishes more detailed maps of the proposed facility area, the more detailed maps shall also be included in Part I. The latest revision of all maps shall be used.(3) Land ownership map with accompanying landowners list.(A) These maps shall comply with the requirements in §281.5 of this title by locating the property owned by adjacent and potentially affected landowners. The maps should show all property ownership within 1/4 mile of the facility, and all mineral interest ownership under the facility.(B) The adjacent and potentially affected landowners' list shall be keyed to the land ownership maps and shall give each property owner's name and mailing address. The list shall comply with the requirements of §281.5 of this title, and shall include all property owners within 1/4 mile of the facility, and all mineral interest ownership under the facility. Property and mineral interest owners' names and mailing addresses derived from the real property appraisal records as listed on the date that the application is filed will comply with this paragraph. Notice of an application is not defective if property owners or mineral interest owners did not receive notice because they were not listed in the real property appraisal records. The list shall also be provided in electronic form.(d) Property owner information. Property owner information shall include the following:(1) the legal description of the facility;(A) the legal description of the property and the county, book, and page number or other generally accepted identifying reference of the current ownership record;(B) for property that is platted, the county, book, and page number or other generally accepted identifying reference of the final plat record that includes the acreage encompassed in the application and a copy of the final plat, in addition to a written legal description;(C) a boundary metes and bounds description of the facility signed and sealed by a registered professional land surveyor; and(D) drawings of the boundary metes and bounds description; and(2) a property owner affidavit signed by the owner that includes the following:(A) acknowledgment that the State of Texas may hold the property owner of record either jointly or severally responsible for the operation, maintenance, and closure and post-closure care of the facility;(B) for facilities where waste will remain after closure, acknowledgment that the owner has a responsibility to file with the county deed records an affidavit to the public advising that the land will be used for a solid waste facility prior to the time that the facility actually begins operating as a municipal solid waste landfill facility, and to file a final recording upon completion of disposal operations and closure of the landfill units in accordance with §330.19 of this title (relating to Deed Recordation); and(C) acknowledgment that the facility owner or operator and the State of Texas shall have access to the property during the active life and post-closure care period, if required, after closure for the purpose of inspection and maintenance.(e) Legal authority. The owner and operator shall provide verification of their legal status as required by §281.5 of this title. Normally, this shall be a one-page certificate of incorporation issued by the secretary of state. The owner or operator shall list all persons having over a 20% ownership in the proposed facility.(f) Evidence of competency. Requirements for demonstrating evidence of competency are as follows.(1) The owner or operator shall submit a list of all Texas solid waste sites that the owner or operator has owned or operated within the last ten years. The site name, site type, permit or registration number, county, and dates of operation shall also be submitted.(2) The owner or operator shall submit a list of all solid waste sites in all states, territories, or countries in which the owner or operator has a direct financial interest. The type of site shall be identified by location, operating dates, name, and address of the regulatory agency, and the name under which the site was operated.(3) The executive director shall require that a licensed solid waste facility supervisor, as defined in Chapter 30 of this title (relating to Occupational Licenses and Registrations), be employed before commencing facility operation.(4) The names of the principals and supervisors of the owner's or operator's organization shall be provided, together with previous affiliations with other organizations engaged in solid waste activities.(5) For landfill permit applications only, evidence of competency to operate the facility shall also include landfilling and earthmoving experience if applicable, and other pertinent experience, or licenses as described in Chapter 30 of this title possessed by key personnel, and the number and size of each type of equipment to be dedicated to facility operation.(6) For mobile liquid waste processing units, the owner or operator shall submit a list of all solid waste, liquid waste, or mobile waste units that the owner or operator has owned or operated within the past five years. The owner or operator shall submit a list of any final enforcement orders, court judgments, consent decrees, and criminal convictions of this state and the federal government within the last five years relating to compliance with applicable legal requirements relating to the handling of solid or liquid waste under the jurisdiction of the commission or the United States Environmental Protection Agency. Applicable legal requirement means an environmental law, regulation, permit, order, consent decree, or other requirement.(g) Appointments. The owner or operator shall provide documentation that the person signing the application meets the requirements of §305.44 of this title (relating to Signatories to Applications). If the authority has been delegated, provide a copy of the document issued by the governing body of the owner or operator authorizing the person that signed the application to act as agent for the owner or operator.(h) Application fees.(1) In accordance with §305.53 of this title (relating to Application Fee), the application fee for a permit, or a major permit amendment as provided in §305.62(j)(1) of this title (relating to Amendments), for a municipal solid waste landfill is $2,050.(2) The application fee for a permit, registration, amendment, modification, or temporary authorization not specified in paragraph (1) of this subsection is $150.(3) For a development permit or registration over a closed municipal solid waste landfill, THSC, §361.532, requires the Texas Commission on Environmental Quality (TCEQ) to charge an application fee equal to the actual cost of reviewing the application prior to the issuance of a development permit. The owner or operator shall submit an initial application fee of $2,500 to be submitted in the form of a check or money order made payable to the TCEQ. Upon completion of the review process, including the public meeting, the executive director shall present the owner or operator with a refund for an overcharge, or an invoice for an undercharge.</content><note type="source"><p>Source Note: The provisions of this §330.59 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective May 29, 2008, 33 TexReg 4176; amended to be effective October 29, 2020, 45 TexReg 7605.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scB/s330.61"><num value="330.61">§330.61</num><heading>Contents of Part II of the Application</heading><content>(a) Existing conditions summary. The owner or operator shall determine and report to the executive director any site-specific conditions that require special design considerations and possible mitigation of conditions identified in subsections (h) - (o) of this section. The owner or operator may discuss any additional land-use, environmental, or special issues in an existing conditions summary.(b) Waste acceptance plan.(1) The owner or operator shall identify the sources and characteristics of wastes (i.e., residential, commercial, grease trap, grit trap, soluble sludges, septage, special wastes, Class 2 or Class 3 industrial solid wastes, compost feedstocks, etc.) proposed to be received for storage, processing, or disposal. Municipal solid waste facilities may not receive regulated hazardous waste. If a waste constituent or characteristic could be a limiting parameter that may impact or influence the design and operation of the facility, the owner or operator shall specify parameter limitations of each type of waste to be managed by the facility, which may include constituent concentrations and characteristics such as pH, fats, oil and grease concentrations, total suspended solids, chemical oxygen demand, biochemical oxygen demand, organic and metal constituent concentrations, water content, or other constituents. The owner or operator shall include:(A) a brief description of the general sources and generation areas contributing wastes to the facility. This description shall include an estimate of the population or population equivalent served by the facility. Additionally, if applicable, a descriptive narrative must be included that describes the percentage of incoming waste that must be recovered and its intended use;(B) for transfer stations, the maximum amount of solid waste to be received daily and annually projected for five years, the maximum amount of solid waste to be stored, the maximum and average lengths of time that solid waste is to remain at the facility, and the intended destination of the solid waste received at this facility; and(C) for landfills, an estimated maximum annual waste acceptance rate for the facility projected for five years.(2) For registration applications, this information shall also establish why a facility qualifies for a registration in accordance with §330.9 of this title (relating to Registration Required).(c) General location maps. The owner or operator shall provide maps in addition to those required by §330.59(c) of this title (relating to Contents of Part I of the Application) as necessary to accurately show proximity to surrounding features:(1) the prevailing wind direction with a wind rose;(2) all known water wells within 500 feet of the proposed permit boundary with the state well numbering system designation for Water Development Board "located wells";(3) all structures and inhabitable buildings within 500 feet of the proposed facility;(4) schools, licensed day-care facilities, churches, hospitals, cemeteries, ponds, lakes, and residential, commercial, and recreational areas within one mile of the facility;(5) the location and surface type of all roads within one mile of the facility that will normally be used by the owner or operator for entering or leaving the facility;(6) latitudes and longitudes;(7) area streams;(8) airports within six miles of the facility;(9) the property boundary of the facility;(10) drainage, pipeline, and utility easements within or adjacent to the facility;(11) facility access control features; and(12) archaeological sites, historical sites, and sites with exceptional aesthetic qualities adjacent to the facility.(d) Facility layout maps. A map or set of maps showing:(1) the outline of the units;(2) general locations of main interior facility roadways, and for landfill units, the general locations of main interior facility roadways that can be used to provide access to fill areas ;(3) locations of monitor wells;(4) locations of buildings;(5) any other graphic representations or marginal explanatory notes necessary to communicate the proposed construction sequence of the facility;(6) fencing;(7) provisions for the maintenance of any natural windbreaks, such as greenbelts, where they will improve the appearance and operation of the facility and, where appropriate, plans for screening the facility from public view;(8) all site entrance roads from public access roads; and(9) for landfill units:(A) sectors with appropriate notations to communicate the types of wastes to be disposed of in individual sectors;(B) the general sequence of filling operations;(C) sequence of excavations and filling;(D) dimensions of cells or trenches; and(E) maximum waste elevations and final cover.(e) General topographic maps. The owner or operator shall submit United States Geological Survey 7 1/2-minute quadrangle sheets or equivalent for the facility. At least one general topographic map shall be at a scale of one inch equals 2,000 feet.(f) Aerial photograph.(1) The owner or operator shall submit an aerial photograph approximately nine inches by nine inches with a scale within a range of one inch equals 1,667 feet to one inch equals 3,334 feet and showing the area within at least a one-mile radius of the site boundaries. The site boundaries and actual fill areas shall be marked.(2) A series of aerial photographs can be used to show growth trends.(3) If submitted, digital prints and photocopies of photographs must be legible.(g) Land-use map. This is a constructed map of the facility showing the boundary of the facility and any existing zoning on or surrounding the property and actual uses (e.g., agricultural, industrial, residential, etc.) both within the facility and within one mile of the facility. The owner or operator shall make every effort to show the location of residences, commercial establishments, schools, licensed day-care facilities, churches, cemeteries, ponds or lakes, and recreational areas within one mile of the facility boundary. Drainage, pipeline, and utility easements within the facility shall be shown. Access roads serving the facility shall also be shown.(h) Impact on surrounding area. A primary concern is that the use of any land for a municipal solid waste facility not adversely impact human health or the environment. The owner or operator shall provide information regarding the likely impacts of the facility on cities, communities, groups of property owners, or individuals by analyzing the compatibility of land use, zoning in the vicinity, community growth patterns, and other factors associated with the public interest. To assist the commission in evaluating the impact of the site on the surrounding area, the owner or operator shall provide the following:(1) if available, a published zoning map for the facility and within two miles of the facility for the county or counties in which the facility is or will be located. If the site requires approval as a nonconforming use or a special permit from the local government having jurisdiction, a copy of such approval shall be submitted;(2) information about the character of surrounding land uses within one mile of the proposed facility;(3) information about growth trends within five miles of the facility with directions of major development;(4) the proximity to residences and other uses (e.g., schools, churches, cemeteries, historic structures and sites, archaeologically significant sites, sites having exceptional aesthetic quality, etc.) within one mile of the facility. The owner or operator shall provide the approximate number of residences and commercial establishments within one mile of the proposed facility including the distances and directions to the nearest residences and commercial establishments. Population density and proximity to residences and other uses described in this paragraph may be considered for assessment of compatibility;(5) a description and discussion of all known wells within 500 feet of the proposed facility. Well density may be considered for assessment of compatibility; and(6) any other information requested by the executive director.(i) Transportation. The owner or operator shall:(1) provide data on the availability and adequacy of roads that the owner or operator will use to access the site;(2) provide data on the volume of vehicular traffic on access roads within one mile of the proposed facility, both existing and expected, during the expected life of the proposed facility;(3) project the volume of traffic expected to be generated by the facility on the access roads within one mile of the proposed facility;(4) submit documentation of coordination of all designs of proposed public roadway improvements such as turning lanes, storage lanes, etc., associated with site entrances with the agency exercising maintenance responsibility of the public roadway involved. In addition, the owner or operator shall submit documentation of coordination with the Texas Department of Transportation for traffic and location restrictions; and(5) for landfill units and landfill mining operations, analyze the impact of the facility upon airports in accordance with §330.545 of this title (relating to Airport Safety). The owner or operator shall submit documentation of coordination with the Federal Aviation Administration for compliance with airport location restrictions.(j) General geology and soils statement. The reports prepared under this subsection must meet the following requirements:(1) discuss in general terms the geology and soils of the proposed site;(2) for landfills, identify and provide data on fault areas located within the proposed site in accordance with §330.555 of this title (relating to Fault Areas);(3) for landfills, identify and provide data on seismic impact zones in accordance with §330.557 of this title (relating to Seismic Impact Zones); and(4) for landfills, identify and provide data on unstable areas in accordance with §330.559 of this title (relating to Unstable Areas).(k) Groundwater and surface water. The owner or operator shall submit:(1) data about the site-specific groundwater conditions at and near the site;(2) data on surface water at and near the site; and(3) information demonstrating how the municipal solid waste facility will comply with applicable Texas Pollutant Discharge Elimination System (TPDES) storm water permitting requirements and the Clean Water Act, §402, as amended. This information may include, but is not limited to:(A) a certification statement indicating the owner/operator will obtain the appropriate TPDES permit coverage when required; or(B) a copy of the permit number for coverage under an individual wastewater permit.(l) Abandoned oil and water wells.(1) The owner or operator shall identify the location of any and all existing or abandoned water wells situated within the facility. Water wells necessary for supply for operations at the landfill may remain in use as long as the wells are located outside of the groundwater monitoring well network, and are not subject to impact from landfill operations. Water wells that will be used for supply at the landfill that are located inside of the groundwater monitoring network, but outside the landfill unit boundary, may be used if identified and approved in the facility permit. For all other facility water wells, the owner or operator shall provide, within 30 days prior to construction, the executive director with written certification that all such wells have been capped, plugged, and closed in accordance with all applicable rules and regulations of the commission or other state agency.(2) The owner or operator shall identify the location of any and all existing or abandoned on-site crude oil or natural gas wells, or other wells associated with mineral recovery that are under the jurisdiction of the Railroad Commission of Texas. The owner or operator shall provide the executive director with written certification that these wells have been properly capped, plugged, and closed in accordance with all applicable rules and regulations of the Railroad Commission of Texas at the time of application. Producing crude oil or natural gas wells that do not affect or hamper landfill operations may remain in their current state, if identified in the permit for the facility.(m) Floodplains and wetlands statement. The floodplains and wetlands statement must:(1) provide data on floodplains in accordance with Chapter 301, Subchapter C of this title (relating to Approval of Levees and Other Improvements);(2) include a wetlands determination under applicable federal, state, and local laws and discuss wetlands in accordance with §330.553 of this title (relating to Wetlands). For the purpose of this subsection, demonstration can be made by providing evidence that the facility has a Corps of Engineers permit for the use of any wetlands area; and(3) identify wetlands located within the facility boundary.(n) Endangered or threatened species.(1) The owner or operator shall consider the impact of a solid waste disposal facility upon endangered or threatened species. The facility and the operation of the facility shall not result in the destruction or adverse modification of the critical habitat of endangered or threatened species, or cause or contribute to the taking of any endangered or threatened species.(2) For landfill applications, the owner or operator shall submit Endangered Species Act compliance demonstrations as required under state and federal laws and determine whether the facility is in the range of endangered or threatened species. If the facility is located in the range of endangered or threatened species, the owner or operator shall have a biological assessment prepared by a qualified biologist in accordance with standard procedures of the United States Fish and Wildlife Service and the Texas Parks and Wildlife Department to determine the effect of the facility on the endangered or threatened species. Where a previous biological assessment has been made for another project in the general vicinity, a copy of that assessment may be submitted for evaluation. The United States Fish and Wildlife Service and the Texas Parks and Wildlife Department shall be contacted for locations and specific data relating to endangered and threatened species in Texas.(o) Texas Historical Commission review. The owner or operator shall submit a review letter from the Texas Historical Commission documenting compliance with the Natural Resources Code, Chapter 191, Texas Antiquities Code.(p) Council of governments and local government review request. The owner or operator shall submit documentation that Parts I and II of the application were submitted for review to the applicable council of governments for compliance with regional solid waste plans. The owner or operator shall also submit documentation that a review letter was requested from any local governments as appropriate for compliance with local solid waste plans. A review letter is not a prerequisite to a final determination on a permit or registration application.</content><note type="source"><p>Source Note: The provisions of this §330.61 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scB/s330.63"><num value="330.63">§330.63</num><heading>Contents of Part III of the Application</heading><content>(a) Site development plan. This plan must include criteria that in the selection and design of a facility will provide for the safeguarding of the health, welfare, and physical property of the people and the environment through consideration of geology, soil conditions, drainage, land use, zoning, adequacy of access roads and highways, and other considerations as the specific facility dictates. The site development plan must include the items listed in this section.(b) General facility design.(1) Facility access. The owner or operator shall describe how access will be controlled for the facility such as the type and location of fences or other suitable means of access control to prevent the entry of livestock, to protect the public from exposure to potential health and safety hazards, and to discourage unauthorized entry or uncontrolled disposal of solid waste or hazardous materials.(2) Waste movement. The owner or operator shall submit a generalized process design and working plan of the overall facility that includes, at a minimum:(A) flow diagrams indicating the storage, processing, and disposal sequences for the various types of wastes and feedstocks received;(B) schematic view drawings showing the various phases of collection, separation, processing, and disposal as applicable for the types of wastes and feedstocks received at the facility;(C) proposed ventilation and odor control measures for each storage, separation, processing, and disposal unit;(D) generalized construction details of all storage and processing units and ancillary equipment (i.e., tanks, foundations, sumps, etc.) with regard to approximate dimensions and capacities, construction materials, vents, covers, enclosures, protective coatings of surfaces, etc. Performance data on all units shall be provided;(E) generalized construction details of slab and subsurface supports of all storage and processing components;(F) locations and engineering design details of all containment dikes or walls (with indicated freeboard) proposed to enclose all storage and processing components and all loading and unloading areas;(G) plans for the storage of grease, oil, and sludge on site including determinations of maximum periods of time all separated materials will remain on site and the ultimate disposition of such materials off site;(H) proposed disposition of effluent resulting from all processing operations; and(I) for transfer stations, provide designs for noise pollution control.(3) Sanitation. The owner or operator shall describe how solid waste processing facilities will be designed to facilitate proper cleaning. This may be accomplished by:(A) controlling surface drainage in the vicinity of the facility to prevent surface water runoff onto, into, and off the treatment area;(B) constructing walls and floors in operating areas of masonry, concrete, or other hard-surfaced materials that can be hosed down and scrubbed;(C) providing necessary connections and equipment to permit thorough cleaning with water or steam; and(D) providing adequate floor or sump drains to remove wash water.(4) Water pollution control. The owner or operator shall describe how all liquids resulting from the operation of solid waste processing facilities will be disposed of in a manner that will not cause surface water or groundwater pollution. The owner or operator shall provide for the treatment of wastewaters resulting from the process or from cleaning and washing and specify how the procedure for wastewater disposal is in compliance with the rules of the commission. (5) Endangered species protection. If necessary, the owner or operator shall describe how the facility will be designed to protect endangered species.(c) Facility surface water drainage report. The owner or operator of a municipal solid waste (MSW) facility shall include a statement that the facility design complies with the requirements of §330.303 of this title (relating to Surface Water Drainage for Municipal Solid Waste Facilities). Additionally, applications for landfill and compost units shall include a surface water drainage report to satisfy the requirements of Subchapter G of this chapter (relating to Surface Water Drainage) and shall include the following.(1) Drainage analyses. The owner or operator shall submit the following information and analyses:(A) drawing(s) showing the drainage areas and drainage calculations;(B) designs of all drainage facilities within the facility area, including such features as typical cross-sectional areas, ditch grades, flow rates, water surface elevation, velocities, and flowline elevations along the entire length of the ditch;(C) sample calculations provided to verify that existing drainage patterns will not be adversely altered;(D) a description of the hydrologic method and calculations used to estimate peak flow rates and runoff volumes including justification of necessary assumptions:(i) the 25-year rainfall intensity used for facility design including the source of the data; all other data and necessary input parameters used in conjunction with the selected hydrologic method and their sources should be documented and described;(ii) hydraulic calculations and designs for sizing the necessary collection, drainage, and/or detention facilities;(iii) discussion and analyses to demonstrate that existing drainage patterns will not be adversely altered as a result of the proposed landfill development; and(iv) structural designs of the collection, drainage, and/or storage facilities.(2) Flood control and analyses. The owner or operator shall:(A) identify whether the site is located within a 100-year floodplain. If applicable, indicate 100-year floodplain on the drawing in paragraph (1)(A) of this subsection;(B) provide the source of all data for such determination and include a copy of the relevant Federal Emergency Management Agency (FEMA) flood map or the calculations and maps used where a FEMA map is not used. FEMA maps are prima facie evidence of floodplain locations. Information shall also be provided identifying the 100-year flood level and any other special flooding factors (e. g., wave action) that must be considered in designing, constructing, operating, or maintaining the proposed facility to withstand washout from a 100-year flood. The boundaries of the proposed landfill facility should be shown on the floodplain map;(C) if the site is located within the 100-year floodplain, provide information detailing the specific flooding levels and other events (e.g., design hurricane projected by Corps of Engineers) that impact the flood protection of the facility. Data should be that required by §§301.33 - 301.36 of this title (relating to Preliminary Plans: Data To Be Submitted, Criteria For Approval of Preliminary Plans; Additional Information; Plans To Bear Seal of Engineer). The owner or operator shall include cross-sections or elevations of landfill levees shown tied into contours;(D) for construction in a floodplain, submit, where applicable:(i) approval from the governmental entity with jurisdiction under Texas Water Code, §16.236, as implemented by Chapter 301 of this title (relating to Levee Improvement Districts, District Plans of Reclamation, and Levees and Other Improvements);(ii) a floodplain development permit from the city, county, or other agency with jurisdiction over the proposed improvements; (iii) a Conditional Letter of Map Amendment from FEMA; and(iv) a Corps of Engineers Section 404 Specification of Disposal Sites for Dredged or Fill Material permit for construction of all necessary improvements.(d) Waste management unit design.(1) Storage and transfer units. The owner or operator shall:(A) describe how the solid waste management facility will be designed for the rapid processing and minimum detention of solid waste at the facility. The owner or operator shall specify that all solid waste capable of creating public health hazards or nuisances be stored indoors only and processed or transferred promptly and shall not be allowed to result in nuisances or public health hazards. If the facility is in continuous operation, such as for resource or energy recovery, the owner or operator shall provide design features for wastes storage units that will prevent the creation of nuisances or public health hazards due to odors, fly breeding, or harborage of other vectors;(B) design the units to control and contain spills and contaminated water from leaving the facility. The design shall be sufficient to control and contain a worst-case spill or release from the unit. Unenclosed containment areas shall also account for precipitation from a 25-year, 24-hour rainfall event; and(C) specify the maximum allowable period of time that unprocessed and processed wastes are to remain on site.(2) Incineration units. The owner or operator shall provide waste feed rates, an estimate of the amount and planned method for testing and final disposal of incinerator ash, an estimate of the volume of quench or process water, and the planned method of treatment and disposal of such water.(3) Surface impoundments. The owner or operator shall provide:(A) design specifications for surface impoundments, including a plan view and cross-section of the impoundment;(B) the minimum freeboard to be maintained and the basis of the design to prevent overtopping resulting from normal or abnormal operations; overfilling; wind and wave action; rainfall; run-on (if allowed); malfunctions of level controllers, alarms, and other equipment; and human error. The owner or operator shall show that adequate freeboard will be available to prevent overtopping from a 25-year, 24-hour rainfall event; and/or(C) in accordance with §330.339 of this title (relating to Liner Quality Control Plan), a liner quality control plan prepared in accordance with Subchapter H of this chapter (relating to Liner System Design and Operation).(4) Landfill units. The owner or operator shall specify:(A) provisions for all-weather operation, e.g., all-weather road, wet-weather pit, alternative disposal facility, etc., and provisions for all-weather access from publicly owned routes to the disposal facility and from the entrance of the facility to unloading areas used during wet weather. Interior access road locations and the type of surfacing shall be indicated on a facility plan. The roads within the facility shall be designed so as to minimize the tracking of mud onto the public access road;(B) the landfill method proposed, e.g., moving-face cell or trench, area fill, or combination;(C) elevation of deepest excavation, maximum elevation of waste, maximum elevation of final cover;(D) a calculation of the estimated rate of solid waste deposition and operating life of the landfill unit. As a general rule, 10,000 people with a per capita collection rate of five pounds per day, dispose of 10 - 15 acre-feet of solid waste in one year;(E) landfill unit cross-sections consisting of plan profiles across the facility clearly showing the top of the levee, top of the proposed fill (top of the final cover), maximum elevation of proposed fill, top of the wastes, existing ground, bottom of the excavations, side slopes of trenches and fill areas, gas vents or wells, and groundwater monitoring wells, plus the initial and static levels of any water encountered. The owner or operator shall provide a sufficient number of cross-sections, both latitudinally and longitudinally, so as to accurately depict the existing and proposed depths of all fill areas within the site. The plan portion shall be shown on an inset key map. The fill cross-sections shall go through or very near the soil borings in order that the boring logs obtained from the soils report can also be shown on the profile;(F) construction and design details of compacted perimeter or toe berms that are proposed in conjunction with aboveground (aerial-fill) waste disposal areas shall be included in the fill cross-sections; and(G) a liner quality control plan prepared in accordance with Subchapter H of this chapter.(5) Arid exemption landfill application information. Owners or operators of new, existing, and lateral expansions of small MSW landfill facilities that meet the criteria in §330.5(b) of this title (relating to Classification of Municipal Solid Waste Facilities) shall submit a certification of eligibility to the executive director and place a copy of the certification in the operating record. The certification shall be signed by a principal executive officer, a ranking elected official, or an independent professional engineer licensed to practice in the State of Texas. The certification must contain the following information:(A) a statement certifying that the small MSW landfill facility meets all requirements contained in §330.5(b) of this title for exemptions from Subchapter H of this chapter (relating to Liner System Design and Operation) and Subchapter J of this chapter (relating to Groundwater Monitoring and Corrective Action);(B) documentation that the small MSW landfill facility receives for disposal an annual average of less than 20 tons per day of authorized types of waste in a Type IAE landfill unit and/or less than 20 tons per day of authorized types of waste in a Type IVAE landfill unit for a total waste acceptance rate less than 40 tons per day for the facility, based upon the most recent four reporting quarters or a certification that programs have been put in place, or will be implemented, to reduce the annual average to less than 20 tons per day based on an annual average for each landfill unit type within one year;(C) documentation that there are no practicable waste management alternatives available. The documentation shall demonstrate one of the following:(i) additional costs of available alternatives are estimated to exceed 1.0% of the owner's or operating community's budget for all public services;(ii) haul distances to alternative sites are unreasonably long; or(iii) all other alternatives are not feasible to implement, given the community location and economic condition; and(D) documentation that the small MSW landfill unit receives less than or equal to 25 inches of average annual precipitation as determined from precipitation data for the nearest official precipitation recording station for the most recent 30-year reporting period.(6) Type V mobile liquid waste processing units. The owner or operator shall provide the following:(A) documentation of affirmative local government approval or acceptance of the mobile unit operation, including conformity with local ordinances, local rules, or requirements set forth by the treatment facility for the discharge, including local limits, zoning restrictions, permits, licenses, authorizations, etc. These regulations do not grant authorization for operation of mobile liquid waste processing units in noncompliance with local government ordinances and regulations or without the express approval of the local wastewater authority. Discharge from a mobile liquid waste processing unit is allowed only at selected disposal points selected by the local treatment facility permitted under Texas Water Code, Chapter 26, so that they can be monitored by the local treatment facility; and(B) written approval from the receiving treatment facility permitted under Texas Water Code, Chapter 26.(7) Type IX energy, material, gas recovery for beneficial use, or landfill mining waste processing units. The owner or operator shall provide:(A) For wastes to be excavated, a test pit evaluation report prepared by an engineer. Prior approval of a test pit plan must be obtained from the executive director before excavation of test pits including location and depth of all test pits, including a discussion and information on the following:(i) a description of the characteristics of waste observed in test pits excavated on the site to include the percent of paper, plastics, ferrous metal, other metal, glass, other constituents, and soil fraction by weight;(ii) a design for the test pits to extend four feet beneath the waste or to a depth authorized by the executive director and information submitted to include a Toxicity Characteristic Leaching Procedure (TCLP) of the soil to characterize the soil beneath the site. Liners if present shall not be disrupted;(iii) a TCLP analysis of each representative type of waste excavated. Additionally, waste excavated from each test pit must be analyzed for asbestos and polychlorinated biphenyls (PCBs). Consideration should be given to the analysis of waste material from each test pit for hazardous waste constituents;(iv) a determination as to a sufficient number of test pits to establish the properties of the waste. A site of five acres or less must have a minimum of three test pits. Sites larger than five acres must have three test pits plus one for every additional five acres or fraction of an acre. The number of test pits shall be approved by the executive director prior to making the pits. The test pits should be sufficiently large enough to provide representative information;(v) a description of how all test pits will be backfilled with clean high plasticity or low plasticity clay. The excavation shall be backfilled to exceed the existing grade and provide positive drainage;(vi) a cross-section drawing using the information from the test pits to depict the top and bottom elevations of the landfill;(vii) a plan view map depicting the location and extent (vertical and lateral) of the waste unit and proposed extent of mining/recovery operations. In areas with liners, mining operations should not extend below the top of the protective cover of the liner. In areas where no liner exists, excavation operations may extend below the waste;(viii) an evaluation of historical records of landfill operations, where available, to determine such things as hazardous waste potential, receipt of special waste, types of waste received, special waste disposal areas, construction or demolition waste disposal areas, methane and leachate records, age, volume, disposal methods, existence of liners, gas collection systems, and leachate collection systems; and(ix) a description of how all waste removed in test pit evaluation will be disposed of in a permitted landfill;(B) a process description to include:(i) a list of the typical materials intended for processing along with the anticipated volume to be processed. This description shall also contain an estimate of the daily quantity of material to be processed at the facility along with a description of the proposed process of screening for hazardous materials;(ii) the methods of excavating the buried waste materials. The owner or operator shall indicate how the material will be handled, how long it will remain in the area, what equipment will be used, how the material will be moved from the excavation area, how the excavation area will be held to a minimum, the maximum side slopes in buried waste, and the maximum excavation area at any one time. The owner or operator shall provide the sequence of excavation;(iii) the processes used to recover reusable or recyclable material or energy. The narrative shall include any water addition, processing rates, equipment, and mass balance or energy balance calculations; (iv) how any process water will be handled and disposed of if a wet mining process is to be used;(v) a complete narrative on product distribution to include items such as disposition of material or energy recovered and probable use of soils on site and off site; and(vi) a process diagram that depicts the general process;(C) a description of liner system used for excavated waste storage, processing, and screening areas to control seepage and runoff. The liner shall be covered with a material designed to withstand normal traffic from the processing operations; and(D) a description of how waste excavation activities will comply with the minimum design and operation requirements of:(i) §330.149 (relating to Odor Management Plan);(ii) §330.151 (relating to Disease Vector Control);(iii) §330.165 (relating to Landfill Cover); and(iv) §330.167 (relating to Ponded Water).(8) Compost units. The owner or operator shall provide:(A) for mechanical composting systems, a detailed engineering description of the system and the manufacturer's performance data;(B) facility layout, including calculations for area requirements;(C) a description of the movement of the material as it leaves the tipping area indicating how the material is incorporated into the composting process and what handling techniques are used all the way through to the post-processing area. The narrative must include:(i) processing rates;(ii) equipment;(iii) mass balance calculations;(iv) use of bulking agents, moisture control, or feed amendments;(v) process monitoring methods;(vi) temperature range and resident time;(vii) storage of compost for curing after the primary composting operation; and(viii) provision for additional drying and screening;(D) a narrative on the post-processing process, including post-processing times, identification and segregation of product, storage of product, and quality assurance and quality control; and(E) a narrative on product distribution including items such as end-product quantities, anticipated final grades, packaging, labeling, loading, marketing, distribution, tracking, and delivery of composted material.(9) Type VI waste processing demonstration facilities.(A) The facility size shall be limited to a liquid waste processing rate no greater than 10,000 gallons per day.(B) The facility design and operation shall be coordinated with a consultant connected with an accredited college or university or with a consultant that has demonstrated the ability to carry out scientific experiments for demonstrating new and unproven waste handling methods and submitted to the executive director. The owner or operator shall submit to the executive director an annual and final status report to document the viability of the method being demonstrated. The report, at a minimum, must document the effluent standards and solid waste standards achieved.(C) The owner or operator may request a variance.(i) In specific cases, the executive director may approve a variance from the requirements of this chapter if the variance is not contrary to safeguarding the health, welfare, and physical property of the people and to protecting the environment. A variance may not be approved concerning the procedural requirements of this chapter.(ii) A request for a variance must be submitted in writing to the executive director. The request may be made in an application for a registration. Any approval of a variance must be in writing from the executive director.(e) Geology report. This portion of the application applies to owners or operators of MSW landfills, compost units, and if otherwise requested by the executive director. The geology report shall be prepared and signed by a qualified groundwater scientist. Previously prepared documents may be submitted but must be supplemented as necessary to provide the requested information. Sources and references for information must be provided. The geology report must contain the following information:(1) a description of the regional geology of the area that includes:(A) a geologic map of the region with text describing the stratigraphy and lithology of the map units. An appropriate section of a published map series such as the Geologic Atlas of Texas prepared by the Bureau of Economic Geology is acceptable; and(B) a description of the generalized stratigraphic column in the facility area from the base of the lowermost aquifer capable of providing usable groundwater, or from a depth of 1,000 feet, whichever is less, to the land surface. The geologic age, lithology, variations in lithology, thickness, depth, geometry, hydraulic conductivity, and depositional history of each geologic unit should be described based upon available geologic information. Regional stratigraphic cross-sections should be provided;(2) a description of the geologic processes active in the vicinity of the facility that includes an identification of any faults and subsidence in the area of the facility. The information about faulting and subsidence shall include at least that required in §330.555(b) and §330.559 of this title (relating to Fault Areas and Unstable Areas);(3) a description of the regional aquifers in the vicinity of the facility based upon published and open-file sources that provides: (A) aquifer names and their association with geologic units described in subparagraph (1)(B) of this subsection;(B) the composition of the aquifer(s);(C) the hydraulic properties of the aquifer(s);(D) information on whether the aquifers are under water table or artesian conditions;(E) information on whether the aquifers are hydraulically connected;(F) a regional water-table contour map or potentiometric surface map for each aquifer, if available;(G) an estimate of the rate of groundwater flow;(H) typical values or a range of values for total dissolved solids content of groundwater from the aquifers;(I) identification of areas of recharge to the aquifers within five miles of the site; and(J) the present use of groundwater withdrawn from aquifers in the vicinity of the facility. The identification, location, and aquifer of all water wells within one mile of the property boundaries of the facility shall be provided;(4) the results of investigations of subsurface conditions at a particular waste management unit. This report must describe all borings drilled on site to test soils and characterize groundwater and must include a site map drawn to scale showing the surveyed locations and elevations of the borings. Boring logs must include a detailed description of materials encountered including any discontinuities such as fractures, fissures, slickensides, lenses, or seams. Geophysical logs of the boreholes may be useful in evaluating the stratigraphy. Each boring must be presented in the form of a log that contains, at a minimum, the boring number; surface elevation and location coordinates; and a columnar section with text showing the elevation of all contacts between soil and rock layers, description of each layer using the unified soil classification, color, degree of compaction, and moisture content. A key explaining the symbols used on the boring logs and the classification terminology for soil type, consistency, and structure must be provided. The boring plan, including locations and depths of all proposed borings, shall be approved by the executive director prior to initiation of the work.(A) A sufficient number of borings shall be performed to establish subsurface stratigraphy and to determine geotechnical properties of the soils and rocks beneath the facility. Other types of samples may also be taken to provide geologic and geotechnical data. The number of borings necessary can only be determined after the general characteristics of a site are analyzed and will vary depending on the heterogeneity of subsurface materials. Locations with stratigraphic complexities such as non-uniform beds that pinch out, vary significantly in thickness, coalesce, or grade into other units, will require a significantly greater degree of subsurface investigation than areas with simple geologic frameworks.(B) Borings shall be sufficiently deep enough to allow identification of the uppermost aquifer and underlying hydraulically interconnected aquifers. Borings shall penetrate the uppermost aquifer and all deeper hydraulically interconnected aquifers and be deep enough to identify the aquiclude at the lower boundary. All the borings shall be at least five feet deeper than the elevation of the deepest excavation. In addition, at least the number of borings shown on the Table of Borings shall be drilled to a depth at least 30 feet below the deepest excavation planned at the waste management unit, unless the executive director approves a different depth. If no aquifers exist within 50 feet of the elevation of the deepest excavation, at least one test hole shall be drilled to the top of the first perennial aquifer beneath the site, if sufficient data does not exist to accurately locate it. The executive director may accept data equivalent to a deep boring on the site to determine information for aquifers more than 50 feet below the site. Aquifers more than 300 feet below the lowest excavation and where the estimated travel times for constituents to the aquifer are in excess of 30 years plus the estimated life of the site need not be identified through borings.Attached Graphic(C) All borings shall be conducted in accordance with established field exploration methods. The hollow-stem auger boring method is recommended for softer materials; coring may be required for harder rocks. Other methods shall be used as necessary to obtain adequate samples for soil testing required in this paragraph. Investigation procedures shall be discussed in the report.(D) Installation, abandonment, and plugging of the borings in accordance with the rules of the commission.(E) Both the number and depth of borings may be modified because of site conditions with approval of the executive director.(F) Geophysical methods, such as electrical resistivity, may be used with authorization of the executive director to reduce the number of borings that may be necessary or to provide additional information between borings.(G) Cross-sections must be prepared from the borings depicting the generalized strata at the facility. For small waste management units, two perpendicular cross-sections will normally suffice. (H) A narrative that describes the investigator's interpretations of the subsurface stratigraphy based upon the field investigation shall be provided;(5) geotechnical data that describes the geotechnical properties of the subsurface soil materials and a discussion with conclusions about the suitability of the soils and strata for the uses for which they are intended. All geotechnical tests shall be performed in accordance with industry practice and recognized procedures such as described below. A brief discussion of geotechnical test procedures including:(A) a laboratory report of soil characteristics determined from at least one sample from each soil layer or stratum that will form the bottom and side of the proposed excavation and from those that are less than 30 feet below the lowest elevation of the proposed excavation. Additional tests shall be performed, as necessary, to provide a typical profile of soil stratification within the site. No laboratory work need be performed on highly permeable soil layers such as sand or gravel. The samples shall be tested by a competent independent third-party soils laboratory;(B) permeability tests performed according to one of the following standards on undisturbed soil samples. Permeability tests shall be performed using tap water or .05 Normal solution of calcium sulfate (CaSO 4 ), and not distilled water, as the permeant. Those undisturbed samples that represent the sidewall of any proposed cell, pit, or excavation shall be tested for the coefficient of permeability on the sample's in-situ horizontal axis; all others shall be tested on the in-situ vertical axis. All test results shall indicate the type of tests used and the orientation of each tested sample. All calculations for the final coefficient of permeability tests result for each sample tested shall be included in the report:(i) constant head with back pressure per Appendix VII of Corps of Engineers Manual EM1110-2-1906, "Laboratory Soils Testing;" American Society for Testing and Materials (ASTM) D5084 "Saturated Porous Materials Using a Flexible Wall Permeameter";(ii) falling head per Appendix VII of Corps of Engineers Manual EM1110-2-1906, "Laboratory Soils Testing";(iii) sieve analysis for the 200, and less than 200 fraction per ASTM D1140;(iv) Atterberg limits per ASTM D4318; and(v) moisture content per ASTM D2216;(C) the depth at which groundwater was encountered and records of after-equilibrium measurements in all borings. The cross-sections prepared in response to paragraph (4)(G) of this subsection must be annotated to note the level at which groundwater was first encountered and the level of groundwater after equilibrium is reached or just prior to plugging, whichever is later. This water-level information must also be presented on all borings required by paragraph (4) of this subsection and presented in a table format in the report;(D) records of water-level measurements in monitoring wells. Historic water-level measurements made during any previous groundwater monitoring shall be presented in a table for each well;(E) a tabulation of all relevant groundwater monitoring data from wells on site or on adjacent MSW landfill unit(s); and(F) identification of the uppermost aquifer and any lower aquifers that are hydraulically connected to it beneath the facility, including groundwater flow direction and rate, and the basis for such identification (i.e., the information obtained from hydrogeologic investigations of the facility area);(6) for owners and operators seeking an arid exemption for their landfill unit designs, a groundwater certification process must be used for meeting the provisions for groundwater certification of the arid exemption, as described in §330.5(b) of this title:(A) locate and plot the facility accurately on a topographic map (7.5-minute or 15-minute United States Geological Survey quadrangle). Draw a line to enclose all of the area within one mile of the facility boundary;(B) visit the facility and locate by physical inspection water wells and springs in the facility area. Determine the locations and plot them on the topographic map:(i) if no wells or springs exist within the facility area, refer to subparagraph (I) of this paragraph. Otherwise, refer to clause (ii) of this subparagraph; and(ii) determine from appropriate records (for example, water-well drillers, pump installers, city records, underground water conservation district, Texas Water Development Board, Texas Commission on Environmental Quality, United States Geological Survey, etc.) which of the wells are completed in the shallowest aquifer. If no wells are completed in the shallowest aquifer or if the shallowest aquifer is more than 150 feet below the land surface at the facility, refer to subparagraph (I) of this paragraph. Otherwise, refer to subparagraph (C) of this paragraph;(C) determine the groundwater gradient of the shallowest aquifer in the vicinity of the facility. This can be done by measuring stabilized water levels in wells completed in the shallowest aquifer in the facility area (from subparagraph (B)(ii) of this paragraph) or from previous hydrogeologic studies using contemporaneous stabilized water-level measurements. Care should be taken to measure water levels when nearby high-volume wells, such as irrigation wells, have not been pumped for a long enough period to allow the water level to stabilize. Where no data exist or cannot be determined, the regional gradient can be used;(D) from springs and from the wells completed in the shallowest aquifer, select the two wells/springs downgradient of and nearest to the facility based on the findings from subparagraph (C) of this paragraph. Select a well/spring upgradient or lateral to the facility, where groundwater quality is not likely to have been affected by landfill activities and preferably not by other human activities such as oil and gas operations, feedlots, sewage treatment plants, septic systems, etc;(E) sample the three selected wells/springs determined by subparagraphs (C) and (D) of this paragraph in accordance with accepted practices, such as described in technical guidance from the executive director. The owner or operator shall have the samples analyzed by a qualified laboratory for the following parameters:(i) chloride;(ii) nitrate (as N);(iii) sulfate;(iv) total dissolved solids;(v) specific conductance;(vi) pH;(vii) chromium;(viii) non-purgeable organic carbon; and(ix) volatile organic compounds listed in §330.419 of this title (relating to Constituents for Detection Monitoring);(F) if permission cannot be obtained to sample one or more of the three selected wells/springs, select one or more alternate wells/springs, within the plotted area. If fewer than three wells/springs are available, sample those that are available;(G) if permission cannot be obtained to sample any appropriately located wells/springs, submit written documentation of the facts to the executive director. If the executive director confirms that permission cannot be obtained for sampling, the well(s) may be eliminated from consideration;(H) compile the data from subparagraphs (A) - (F) of this paragraph in a report that includes:(i) a map showing all known wells, springs, facility boundaries, sampling points, etc.;(ii) a map showing the groundwater gradient and data points;(iii) chemical analyses, showing analytical methods used;(iv) logs and construction information for the sampled wells and description and flow rate for sampled springs;(v) text describing methods of investigation, such as sampling and water-level measurements; and(vi) conclusions with respect to presence or lack of evidence of groundwater contamination by the facility;(I) where no wells or springs are present in the facility area or the shallowest water level is more than 150 feet below land surface at the facility, submit a brief report describing the facility (with a map of the area) and the method(s) of determining the lack of appropriate sampling points or depth to the shallowest aquifer. Confirmed absence of sampling points will be deemed to be "no evidence of groundwater contamination";(J) the report shall be signed and sealed by the qualified groundwater scientist who reviewed the data and reached the conclusions;(K) if there is no evidence of groundwater contamination by the landfill, the qualified groundwater scientist who reviewed the data and reached the conclusions shall sign and seal a statement in the following format: "I (we) have reviewed the groundwater data described in a report submitted with this certification and have found no evidence that the __________ municipal solid waste landfill located at ___________ has contaminated groundwater in the uppermost aquifer"; and(L) the executive director may accept information and data, other than described in this paragraph, as showing that there is no evidence of groundwater contamination by the landfill, if the information and data are deemed to be adequate for such a determination.(f) Groundwater sampling and analysis plan. The groundwater sampling and analysis plan for landfills and if otherwise requested by the executive director for other MSW units must be prepared in accordance with Subchapter J of this chapter (relating to Groundwater Monitoring and Corrective Action). The groundwater sampling and analysis plan for composting operations that require a permit must be prepared in accordance with the groundwater monitoring requirements of §332.47(6)(C)(ii) of this title (relating to Permit Application Preparation). As part of this plan for Type I landfills, submit the following:(1) on a topographic map, a delineation of the waste management area, the property boundary, the proposed point of compliance as defined under §330.3 of this title (relating to Definitions), the proposed location of groundwater monitoring wells as required under §330.403 of this title (relating to Groundwater Monitoring Systems);(2) a description of any plume of contamination that has entered the groundwater from an MSW management unit at the time that the application was submitted. In addition:(A) delineate the extent of the plume on the topographic map required in paragraph (1) of this subsection; and(B) identify the concentration of each assessment constituent as defined in §330.409 of this title (relating to Assessment Monitoring Program) throughout the plume or identify the maximum concentration of each assessment constituent in the plume;(3) an analysis of the most likely pathway(s) for pollutant migration in the event that the primary barrier liner system is penetrated. This must include any groundwater modeling data and results as described in §330.403(e)(2) of this title and consider changes in groundwater flow that are expected to result from construction of the facility;(4) detailed plans and an engineering report describing the proposed groundwater monitoring program to be implemented to meet the requirements of §330.403 of this title;(5) if the hazardous constituents listed in the table located in 40 Code of Federal Regulations Part 258, Appendix I, and §330.419 of this title have not been detected in the groundwater at the time of permit application, the owner or operator shall submit sufficient information, supporting data, and analyses to establish a detection monitoring program that meets the requirements of §330.407 of this title (relating to Detection Monitoring Program for Type I Landfills). This submission must address the following items as specified in §330.407 of this title:(A) a proposed groundwater monitoring system;(B) background values for each monitoring parameter or constituent listed in §330.419 of this title, or procedures to calculate such values; and(C) a description of proposed sampling, analysis, and statistical comparison procedures to be utilized in evaluating groundwater monitoring data;(6) if the presence of hazardous constituents listed in §330.419 of this title has been detected in the groundwater at the time of the permit application, the owner or operator shall submit sufficient information, supporting data, and analyses to establish an assessment monitoring program that meets the requirements of §330.409 of this title. To demonstrate compliance with §330.409 of this title, the owner or operator shall address the following items:(A) a description of any special wastes previously handled at the MSW facility;(B) a characterization of the contaminated groundwater, including concentration of assessment constituents as defined in §330.409 of this title;(C) a list of assessment constituents as defined in §330.409 of this title for which assessment monitoring will be undertaken in accordance with §330.405 of this title (relating to Groundwater Sampling and Analysis Requirements) and §330.409 of this title;(D) detailed plans and an engineering report describing the proposed groundwater monitoring system, in accordance with the requirements of §330.405 of this title; and(E) a description of proposed sampling, analysis, and statistical comparison procedures to be utilized in evaluating groundwater monitoring data; and(7) if hazardous constituents have been measured in the groundwater that exceed the concentration limits established in §330.409 of this title, the owner or operator shall submit sufficient information, supporting data, and analyses to establish a corrective action program that meets the requirements of §330.411 and §330.413 of this title (relating to Assessment of Corrective Measures and Selection of Remedy). To demonstrate compliance with §330.411 of this title, the owner or operator shall address, at a minimum, the following:(A) a characterization of the contaminated groundwater, including concentrations of assessment constituents as defined in §330.409 of this title;(B) the concentration limit for each constituent found in the groundwater;(C) detailed plans and an engineering report describing the corrective action to be taken;(D) a description of how the groundwater monitoring program will demonstrate the adequacy of the corrective action; and(E) a schedule for submittal of the information required in subparagraphs (C) and (D) of this paragraph provided the owner or operator obtains written authorization from the executive director prior to submittal of the complete permit application.(g) Landfill gas management plan. A facility gas management plan shall be prepared to address all of the requirements in Subchapter I of this chapter (relating to Landfill Gas Management).(h) Closure plan. The facility closure plan shall be prepared in accordance with Subchapter K of this chapter (relating to Closure and Post-Closure). For a landfill unit, the closure plan will include a contour map showing the final constructed contour of the entire landfill to include internal drainage and side slopes plus accommodation of surface drainage entering and departing the completed fill area plus areas subject to flooding due to a 100-year frequency flood. Cross-sections shall be provided.(i) Post-closure plan. The facility post-closure care plan shall be prepared in accordance with Subchapter K of this chapter.(j) Cost estimate for closure and post-closure care. The owner or operator shall submit a cost estimate for closure and post-closure care in accordance with Subchapter L of this chapter (relating to Closure, Post-Closure, and Corrective Action Cost Estimates). For an existing facility, the owner or operator shall also submit a copy of the documentation required to demonstrate financial assurance as specified in Chapter 37, Subchapter R of this title (relating to Financial Assurance for Municipal Solid Waste Facilities). For a new facility, a copy of the required documentation shall be submitted 60 days prior to the initial receipt of waste.</content><note type="source"><p>Source Note: The provisions of this §330.63 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scB/s330.65"><num value="330.65">§330.65</num><heading>Contents of Part IV of the Application</heading><content>(a) The owner or operator shall submit a site operating plan. This plan will provide general operating procedures for facility management for day-to-day operations at the facility. The site operating plan must be retained during the active life of the facility. At a minimum, the site operating plan must include a description for how the items in Subchapters D and E of this chapter (relating to Operational Standards for Municipal Solid Waste Landfill Facilities; and Operational Standards for Municipal Solid Waste Storage and Processing Units) will be implemented.(b) A facility that has an environmental management system that meets the minimum standards described in §90.30 of this title (relating to Minimum Standards for Environmental Management Systems) and is approved to operate under an environmental management system in accordance with §90.31 of this title (relating to Review of Incentive Applications for Environmental Management Systems), is not subject to site operating plan requirements while the authorization to operate under the environmental management system remains in place. In the event the executive director terminates authorization to operate under an environmental management system, the facility will comply with the site operating plan requirements within 90 days.(c) The owner or operator shall specify procedures for recirculating leachate or gas condensate into a landfill unit as part of the site operating plan.(d) The owner or operator of a grease trap waste, grit trap waste, or septage processing facility shall submit information identifying any permit requirements under the Texas Pollutant Discharge Elimination System and any permit requirements imposed by other agencies (e.g., local government pretreatment or discharge authorization requirements).</content><note type="source"><p>Source Note: The provisions of this §330.65 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scB/s330.67"><num value="330.67">§330.67</num><heading>Property Rights</heading><content>(a) It is the responsibility of an owner or operator to possess or acquire a sufficient interest in or right to the use of the surface estate of the property for which a permit is issued, including the access route. The granting of a permit does neither convey any property rights or interest in either real or personal property; nor does it authorize any injury to private property, invasion of personal rights, or impairment of previous contract rights; nor any infringement of federal, state, or local laws or regulations outside the scope of the authority under which a permit is issued.(b) The owner or operator shall retain the right of entry to the facility until the end of the post-closure care period for inspection and maintenance of the facility.(c) Executive director approval or a permit will be required if any on-site operations subsequent to closure of a landfill facility involve disturbing the cover or liner of the landfill.(d) It is also the responsibility of an owner or operator to obtain any permits or approvals that may be required by local agencies such as for building construction, discharge of uncontaminated waters into ditches under control of a drainage district, discharge of effluent into a local sanitary sewer system, etc.</content><note type="source"><p>Source Note: The provisions of this §330.67 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scB/s330.69"><num value="330.69">§330.69</num><heading>Public Notice for Registrations</heading><content>(a) Notice to local governments. For mobile liquid waste processing unit registration applications only, upon filing a registration application, the owner or operator shall mail notice to the city, county, and local health department of any local government in which operations will be conducted notifying local governments that an application has been filed. Proof of mailing shall be provided to the executive director in the form of return receipts for registered mail. Mobile liquid waste processing unit registration applications are not subject to public meeting or sign-posting requirements under subsection (b) of this section.(b) Opportunity for public meeting and posting notice signs. The owner or operator shall provide notice of the opportunity to request a public meeting and post notice signs for all registration applications not later than 45 days of the executive director's receipt of the application in accordance with the procedures contained in §39.501(c) of this title (relating to Application for Municipal Solid Waste Permit) and by posting signs at the proposed site. The owner or operator and the commission shall hold a public meeting in the local area, prior to facility authorization, if a public meeting is required based on the criteria contained in §55.154(c) of this title (relating to Public Meetings) or by Texas Health and Safety Code, §361.111(c). Notice of a public meeting shall be provided as specified in §39.501(e)(5) and (6) of this title. This section does not require the commission to respond to comments, and it does not create an opportunity for a contested case hearing. Applications for registrations filed after the comprehensive rule revisions in this chapter as adopted in 2006 (2006 Revisions) become effective are subject to the 2006 Revisions requirements to provide notice of the opportunity to request a public meeting. The owner, operator, or a representative authorized to make decisions and act on behalf of the owner or operator shall attend the public meeting. A public meeting conducted under this section is not a contested case hearing under the Texas Government Code, Chapter 2001, Administrative Procedure Act. At the owner's or operator's expense, a sign or signs must be posted at the site of the proposed facility declaring that the application has been filed and stating the manner in which the commission and owner or operator may be contacted for further information. Such signs must be provided by the owner or operator and must substantially meet the following requirements.(1) Signs must:(A) consist of dark lettering on a white background and must be no smaller than four feet by four feet with letters at least three inches in height and block printed capital lettering;(B) be headed by the words "PROPOSED MUNICIPAL SOLID WASTE FACILITY";(C) include the words "REGISTRATION NO.," the number of the registration, and the type of registration;(D) include the words "for further information contact";(E) include the words "Texas Commission on Environmental Quality" and the address and telephone number of the appropriate commission permitting office;(F) include the name of the owner or operator, and the address of the appropriate responsible official;(G) include the telephone number of the owner or operator;(H) remain in place and legible until the period for filing a motion to overturn has expired. The owner or operator shall provide a verification to the executive director that the sign posting was conducted according to the requirements of this section; and(I) describe how persons affected may request that the executive director and applicant conduct a public meeting.(2) Signs must be located within ten feet of every property line bordering a public highway, street, or road. Signs must be visible from the street and spaced at not more than 1,500-foot intervals. A minimum of one sign, but no more than three signs, shall be required along any property line paralleling a public highway, street, or road. This paragraph's sign requirements do not apply to properties under the same ownership that are noncontiguous or separated by intervening public highway, street, or road, unless the property is part of the registered facility.(3) The owner or operator shall also post signs at the facility in an alternative language when the alternative language requirements in §39.426 of this title (relating to Alternative Language Requirements) are met.(4) The executive director may approve variances from the requirements of paragraphs (1) and (2) of this subsection if the owner or operator has demonstrated that it is not practical to comply with the specific requirements of those paragraphs and alternative sign posting plans proposed by the owner or operator are at least as effective in providing notice to the public. Approval from the executive director under this paragraph must be received before posting alternative signs for purposes of satisfying the requirements of this paragraph.(c) Notice of final determination. The executive director shall, after review of an application for registration, determine if the application will be approved or denied in whole or in part. In accordance with §50.133(b) of this title (relating to Executive Director Action on Application or WQMP Update), if the executive director acts on an application, the chief clerk shall mail or otherwise transmit notice of the action and an explanation of the opportunity to file a motion under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision). The chief clerk shall mail this notice to the owner and operator, the public interest counsel, to adjacent landowners as shown on the land ownership map and landowners list required by §330.59 of this title (relating to Contents of Part I of the Application), and to other persons who timely filed public comment in response to public notice.(d) Motion to overturn. The owner or operator, or a person affected may file with the chief clerk a motion to overturn the executive director's action on a registration application, under §50.139 of this title. The criteria regarding motions to overturn shall be explained in public notices given under Chapter 39 of this title (relating to Public Notice) and §50.133 of this title.</content><note type="source"><p>Source Note: The provisions of this §330.69 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective May 14, 2020, 45 TexReg 3119; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scB/s330.71"><num value="330.71">§330.71</num><heading>Duration and Limits of Registrations and Permits</heading><content>(a) The executive director shall, after review of any application for registration, approve or deny an application in whole or in part. This action shall be based on whether the application meets the requirements of this chapter.(b) Except as provided in subsection (f) of this section for demonstration facilities, a registration or permit is normally issued for the life of the facility but may be revoked, amended, or modified at any time if the operating conditions do not meet the minimum standards set forth in this chapter or for any other good cause.(c) When deemed appropriate a registration or permit may be issued for a specific period of time. When an owner or operator has made timely and sufficient application for the renewal of a registration or permit, the existing registration or permit does not expire until the application has been finally determined by the commission.(d) A registration or permit is issued to a specific person (see definition of person contained in §3.2 of this title (relating to Definitions)) and may not be transferred from one person to another without complying with the transfer approval requirements of the commission.(e) Except for transporters and mobile treatment units, a registration or permit is attached to the realty to which it pertains and may not be transferred from one facility to another.(f) Demonstration projects for liquid waste processing facilities shall be limited to a two-year period. Re-registration of a demonstration facility may be considered only if the new method being demonstrated is not widely used in Texas.(g) If a registered facility does not commence physical construction within two years of issuance of a registration or within two years of the conclusion of the appeals process, whichever is longer, the registration shall automatically terminate and will no longer be effective.(h) If a registered mobile liquid waste processing unit does not begin operation within two years of obtaining its registration, the registration shall terminate and no longer be effective.(i) A registration shall be considered to be a permit for purposes of revocation and denial under Chapter 305 of this title (relating to Consolidated Permits).(j) The owner or operator may file with the chief clerk a motion to overturn the executive director's denial of a registration under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).</content><note type="source"><p>Source Note: The provisions of this §330.71 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scB/s330.73"><num value="330.73">§330.73</num><heading>Additional Standard Permit and Registration Conditions for Municipal Solid Waste Facilities</heading><content>(a) If at any time during the life of the facility the owner or operator becomes aware of any condition in the permit or registration that necessitates a change to accommodate new technology or improved methods or that makes it impractical to keep the facility in compliance, the owner or operator shall submit to the executive director requested changes to the permit or registration in accordance with §305.62 of this title (relating to Amendment) or §305.70 of this title (relating to Municipal Solid Waste Permit and Registration Modifications) and must be approved prior to their implementation.(b) All drawings or other sheets prepared for requested revisions must be submitted following the format in §330.57(g) of this title (relating to Permit and Registration Applications for Municipal Solid Waste Facilities). All revised engineering and geoscientific plans, drawings, and reports shall be signed and sealed by a licensed professional engineer or geoscientist as specified in §330.57(f) of this title.(c) Before a permit, or a major permit amendment as provided in §305.62(j)(1) of this title, for a municipal solid waste (MSW) landfill is issued, the executive director shall perform a site assessment of the facility, as prescribed by the executive director, to confirm information included in the application.(d) A preconstruction conference shall be held prior to commencement of physical construction for an MSW landfill facility, a vertical landfill expansion, or a lateral landfill expansion. The preconstruction conference shall not be held more than 90 days prior to the date that construction is scheduled to begin. All aspects of the permit, construction activities, and inspections shall be discussed. Additional preconstruction conferences may be held prior to the opening of a new MSW landfill unit. The executive director and owner's representatives, including the engineer, the geotechnical consultant, the contractor, and the facility manager, shall attend the preconstruction conference.(e) The owner or operator shall obtain and submit certification by a Texas-licensed professional engineer that the facility has been constructed as designed in accordance with the issued registration or permit and in general compliance with the regulations prior to initial operation. The owner or operator shall maintain that certification on site for inspection.(f) After all initial construction activity has been completed and prior to accepting any solid waste, the owner or operator shall contact the executive director and region office in writing and request a pre-opening inspection. A pre-opening inspection shall be conducted by the executive director within 14 days of notification by the owner or operator that all construction activities have been completed, accompanied by representatives of the owner or operator and the engineer.(g) The MSW facility shall not accept solid waste until the executive director has confirmed in writing that all applicable submissions required by the permit or registration and this chapter have been received and found to be acceptable, and that construction is in compliance with the permit or registration and the approved site development plan. If the executive director has not provided a written or verbal response within 14 days of completion of the pre-opening inspection, the facility shall be considered approved for acceptance of waste.</content><note type="source"><p>Source Note: The provisions of this §330.73 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective October 29, 2020, 45 TexReg 7605.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scC"><num value="C">SUBCHAPTER C</num><heading>MUNICIPAL SOLID WASTE COLLECTION AND TRANSPORTATION</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scC/s330.101"><num value="330.101">§330.101</num><heading>Applicability</heading><content>This subchapter applies to all public and private collection and transportation systems.</content><note type="source"><p>Source Note: The provisions of this §330.101 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scC/s330.103"><num value="330.103">§330.103</num><heading>Collection and Transportation Requirements</heading><content>(a) Municipal solid waste (MSW) containing putrescibles shall be collected a minimum of once weekly to prevent propagation and attraction of vectors and the creation of public health nuisances. Collection should be made more frequently in circumstances where vector breeding or harborage potential is significant.(b) Transporters of MSW shall be responsible for ensuring that all solid waste collected is unloaded only at facilities authorized to accept the type of waste being transported. Off-loading at an unauthorized location or at a facility not authorized to accept such waste is a violation of this subchapter. Allowable wastes at a particular solid waste management facility may be determined by reviewing the following regulations as applicable:(1) §330.5 of this title (relating to Classification of Municipal Solid Waste Facilities);(2) Subchapter D of this chapter (relating to Operational Standards for Municipal Solid Waste Landfill Facilities);(3) Subchapter E of this chapter (relating to Operational Standards for Municipal Solid Waste Storage and Processing Units);(4) Chapter 312, Subchapters A - E of this title (relating to General Provisions; Land Application and Storage of Biosolids and Domestic Septage; Surface Disposal; Pathogen and Vector Attraction Reduction; and Guidelines and Standards for Sludge Incineration); and(5) §330.15(e) of this title (relating to General Prohibitions).(c) All transporters of solid waste shall maintain records for at least three years to document that waste was taken to an authorized MSW facility. Upon request of the executive director or of a local government with jurisdiction, a transporter is responsible for providing adequate documentation regarding the destination of all collected waste including billing documents to prove that the proper disposal procedure is being followed.(d) Each transporter delivering waste to a solid waste management facility shall immediately remove any non-allowable wastes delivered to the solid waste management facility or, at the option of the disposal facility operator, pay any applicable surcharges to have the disposal facility operator remove the non-allowable waste.(e) If non-allowable wastes are discovered in a load of waste being discharged at an MSW facility, the transporter shall immediately take all necessary steps to determine the origin of the non-allowable waste and to assure that non-allowable wastes are either not collected or are taken to a facility approved to accept such wastes.</content><note type="source"><p>Source Note: The provisions of this §330.103 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective May 26, 2016, 41 TexReg 3735; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scC/s330.105"><num value="330.105">§330.105</num><heading>Collection Vehicles and Equipment</heading><content>(a) Sanitation standards. All vehicles and equipment used for the collection and transportation of municipal solid waste shall be constructed, operated, and maintained to prevent loss of liquid or solid waste material and to minimize health and safety hazards to solid waste management personnel, the public, and the environment. Collection vehicles and equipment shall be maintained in a sanitary condition to preclude odors and fly breeding.(b) Operating condition of vehicles. Collection vehicles should be maintained and serviced periodically and should receive periodic safety checks. Safety defects in a vehicle should be repaired before the vehicle is used.</content><note type="source"><p>Source Note: The provisions of this §330.105 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scC/s330.107"><num value="330.107">§330.107</num><heading>Collection Spillage</heading><content>(a) Cleanup at collection point. The person operating the collection system shall provide for prompt cleanup of all spillages caused by the collection operation.(b) Cleanup along route. Persons transporting solid waste shall not discharge or allow the discharge of solid waste from the vehicle on the way to the municipal solid waste facility. If a discharge of waste occurs during transportation, the transporter shall take immediate action to contain the waste and to clean up and remove the discharged waste to an approved solid waste management facility.</content><note type="source"><p>Source Note: The provisions of this §330.107 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scD"><num value="D">SUBCHAPTER D</num><heading>OPERATIONAL STANDARDS FOR MUNICIPAL SOLID WASTE LANDFILL FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.121"><num value="330.121">§330.121</num><heading>General</heading><content>(a) The approved site development plan, the site operating plan, the final closure plan, the post-closure maintenance plan, the landfill gas management plan, and all other documents and plans required by this chapter shall become operational requirements and shall be considered a part of the operating record of the facility. Any deviation from the permit and incorporated plans or other related documents associated with the permit is a violation of this chapter.(b) To the extent that a requirement has been changed by the rule amendments that became effective December 2, 2004 (2004 Revisions), the facility may continue to operate under requirements contained in previously issued authorizations, except as provided by this subchapter. The landfill permittee is under an obligation to apply for a permit modification in accordance with §305.70(k) of this title (relating to Municipal Solid Waste Permit and Registration Modifications), as applicable, to incorporate the 2004 Revisions. A permittee's application to modify its permit in accordance with the executive director's schedule will be processed as a modification and any subsequent applications will be processed in accordance with Chapter 305, Subchapter D of this title (relating to Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits). The executive director will determine a schedule for landfill permittees to submit an application to modify their permit to conform to the 2004 Revisions. Timely submission of a request for a permit modification qualifies the owners or operators of existing permits to operate under requirements contained in the existing permit. Landfill permit applications that were pending December 2, 2004, are subject to the former rules unless an applicant elects to proceed under the rules that became effective December 2, 2004.(c) To the extent that requirements of this subchapter have been changed by the comprehensive rule revisions in this chapter as adopted in 2006 (2006 Revisions), a landfill permittee may continue to operate under an existing permit and is not required to apply to modify or amend an existing permit to comply with the 2006 Revisions. The requirements of §330.165(d)(4) of this title (relating to Landfill Cover) supersede any inconsistent provisions contained in existing permits.</content><note type="source"><p>Source Note: The provisions of this §330.121 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.123"><num value="330.123">§330.123</num><heading>Pre-Operation Notice</heading><content>The owner or operator shall provide written notice in the form of a soil liner evaluation report as described in §330.341 of this title (relating to Soil Liner Evaluation Report and Geomembrane Liner Evaluation Report) of the final construction and lining of a new disposal area (sector) to the executive director for review 14 days prior to the placement of waste. The executive director has 14 days to provide a verbal or written response. If by the end of the 14th day following the executive director's receipt of the report no comments are received, the operator may begin placing waste. This provision is not applicable to the initial opening of a municipal solid waste landfill.</content><note type="source"><p>Source Note: The provisions of this §330.123 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.125"><num value="330.125">§330.125</num><heading>Recordkeeping Requirements</heading><content>(a) A copy of the permit, the approved site development plan, the site operating plan, the final closure plan, the post-closure maintenance plan, the landfill gas management plan, and any other required plan or other related document shall be maintained at the municipal solid waste facility, or an alternate location approved by the executive director. This requirement shall be considered a part of the operating record for the facility.(b) The owner or operator shall within seven working days of completion or receipt of analytical data, as appropriate, record and retain in the operating record the following information:(1) any and all location-restriction demonstrations;(2) inspection records, training procedures, and notification procedures relating to excluding the receipt of prohibited waste;(3) all results from gas monitoring and any remediation plans relating to explosive and other gases;(4) any and all unit design documentation for the placement of leachate or gas condensate in a municipal solid waste landfill;(5) any and all demonstration, certification, findings, monitoring, testing, and analytical data relating to groundwater monitoring and corrective action;(6) closure and post-closure care plans and any monitoring, testing, or analytical data relating to post-closure requirements;(7) any and all cost estimates and financial assurance documentation relating to financial assurance for closure and post-closure;(8) any and all information demonstrating compliance with the small community exemption criteria;(9) copies of all correspondence and responses relating to the operation of the facility, modifications to the permit, approvals, and other matters pertaining to technical assistance;(10) any and all documents, manifests, shipping documents, trip tickets, etc., involving special waste;(11) for any spray-applied alternative daily cover (ADC) material, records of the application rate and total amount ADC applied to the working face on those days in which ADC is applied; and(12) any other document(s) as specified by the approved permit or by the executive director.(c) The owner or operator shall place all information specified in subsections (a) and (b) of this section in the operating record. The owner or operator shall place this information in the operating record in accordance with the time period specified in subsection (b) of this section and maintain the operating record in an organized format which allows the information to be easily located and retrieved. All information contained in the operating record must be furnished upon request to the executive director and must be made available for inspection by the executive director.(d) The owner or operator shall retain all information contained within the operating record and the different plans required for the facility for the life of the facility including the post-closure care period.(e) The owner or operator shall maintain training records in accordance with §335.586(d) and (e) of this title (relating to Personnel Training).(f) The owner or operator shall maintain personnel operator licenses issued in accordance with Chapter 30, Subchapter F of this title (relating to Municipal Solid Waste Facility Supervisors), as required.(g) The executive director may set alternative schedules for recordkeeping and notification requirements as specified in subsections (a) - (f) of this section, except for notification requirements contained in Subchapter M of this chapter (relating to Location Restrictions) for any proposed lateral expansion located within a six-mile radius of any airport runway end used by turbojet or piston-type aircraft or notification relating to landowners whose property overlies any part of the plume of contamination, if contaminants have migrated off site as indicated by groundwater sampling.(h) The owner or operator shall maintain records to document the annual waste acceptance rate for the facility. Documentation must include maintaining the quarterly solid waste summary reports and the annual solid waste summary reports required by §330.675 of this title (relating to Reports) in the operating record. After an updated site operating plan permit modification under §330.121(b) of this title (relating to General) is approved to comply with the rules that became effective December 2, 2004, if the annual waste acceptance rate exceeds the rate estimated in the landfill permit application and the waste increase is not due to a temporary occurrence, the owner or operator shall file an application to modify the permit application, including the revised estimated waste acceptance rate, in accordance with §305.70(l) of this title (relating to Municipal Solid Waste Permit and Registration Modifications), within 90 days of the exceedance as established by the sum of the previous four quarterly summary reports. The application must propose any needed changes in the site operating plan to manage the increased waste acceptance rate to protect public health and the environment. The increased waste acceptance rate may justify requiring permit conditions that are different from or absent in the existing permit. This subsection is not intended to make an estimated waste acceptance rate a limiting parameter of a landfill permit.</content><note type="source"><p>Source Note: The provisions of this §330.125 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.127"><num value="330.127">§330.127</num><heading>Site Operating Plan</heading><content>A site operating plan must include provisions for site management and the site operating personnel to meet the general and site-specific requirements of this subchapter. A site operating plan must be retained during the active life of the facility and throughout the post-closure care maintenance period. A site operating plan must include the following:(1) a description of functions and minimum qualifications for each category of key personnel to be employed at the facility and for the supervisory personnel in the chain of command;(2) a description, including the minimum number, size, type, and function, of the equipment to be utilized at the facility based on the estimated waste acceptance rate and other operational requirements, and a description of the provisions for back-up equipment during periods of breakdown or maintenance of this listed equipment;(3) a description of the general instructions that the operating personnel shall follow concerning the operational requirements of this subchapter;(4) identification of applicable training requirements under §335.586(a) and (c) of this title (relating to Personnel Training) that shall be followed;(5) procedures for the detection and prevention of the disposal of prohibited wastes, including regulated hazardous waste as defined in 40 Code of Federal Regulations (CFR) Part 261, and of polychlorinated biphenyls (PCB) wastes as defined in accordance with 40 CFR Part 761 unless authorized by the United States Environmental Protection Agency. The detection and prevention program must include the following:(A) procedures to be used by the owner or operator to control the receipt of prohibited waste. The procedures must include the random inspections of incoming loads and must include the inspection of compactor vehicles. In addition to the random inspections, trained staff shall observe each load that is disposed at the landfill;(B) records of all inspections;(C) training for appropriate facility personnel responsible for inspecting or observing loads to recognize prohibited waste;(D) notification to the executive director, and any local pollution agency with jurisdiction that has requested to be notified, of any incident involving the receipt or disposal of regulated hazardous waste or PCB waste at the landfill; and(E) provisions for the remediation of the incident; and(6) general instructions required to be included in the site operating plan by other sections of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §330.127 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.129"><num value="330.129">§330.129</num><heading>Fire Protection</heading><content>The owner or operator shall maintain a source of earthen material in such a manner that it is available at all times to extinguish any fires. The source must be sized to cover any waste received for disposal not covered with six inches of earthen material. Sufficient on-site equipment must be provided to place a six-inch layer of earthen material to cover any waste not already covered with six inches of earthen material within one hour of detecting a fire. A site operating plan must contain calculations demonstrating the adequacy of the earthen material and to demonstrate that the type and number of equipment listed in the site operating plan will be able to transport the volume of earth required. The executive director may approve alternative methods of fire protection. The potential for accidental fires must be minimized by use of proper compaction and earthen material cover. A site operating plan must contain a fire protection plan that identifies the fire protection standards to be used at the facility and how personnel are trained. The operator must initiate procedures in accordance with the fire protection plan upon detection of a fire. For any municipal solid waste activity on a landfill that stores or processes combustible materials, such as solidification basins, brush collection areas, construction or demolition waste areas, composting areas, mulching areas, shredding areas, and used oil storage areas, the site operating plan must address fire protection measures specific to each individual activity. If a fire occurs that is not extinguished within ten minutes of detection, the commission's regional office must be contacted immediately after detection, but no later than four hours by telephone, and in writing within 14 days with a description of the fire and the resulting response.</content><note type="source"><p>Source Note: The provisions of this §330.129 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.131"><num value="330.131">§330.131</num><heading>Access Control</heading><content>Public access to all municipal solid waste facilities must be controlled by means of artificial barriers, natural barriers, or a combination of both, appropriate to protect human health and safety and the environment. Uncontrolled access to other operations located at a municipal solid waste facility must be prevented. The provisions for access control must be specified in the site operating plan. The preferred method of landfill access control is fences and gates. Regardless of the access control method, the site operating plan must include an inspection and maintenance schedule, notification to the commission's regional office of a breach, provisions for temporary and permanent repairs, and notification to the commission's regional office when a permanent access control breach repair is completed. The commission's regional office, and any local pollution agency with jurisdiction that has requested to be notified, must be notified of the breach within 24 hours of detection. The breach must be temporarily repaired within 24 hours of detection and must be permanently repaired by the time specified to the commission's regional office when it was reported in the initial breach report. If a permanent repair can be made within eight hours of detection, no notice to the commission's regional office is required.</content><note type="source"><p>Source Note: The provisions of this §330.131 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.133"><num value="330.133">§330.133</num><heading>Unloading of Waste</heading><content>(a) The unloading of solid waste must be confined to as small an area as practical. The maximum size of the unloading area must be specified in the site operating plan. The number and types of unloading areas must be identified. A trained staff person shall be provided at all facilities to monitor all incoming loads of waste. A trained staff person shall also be on duty during operating hours at each area where waste is being unloaded to direct and observe the unloading of solid waste. The owner or operator is not required to accept any solid waste that the owner or operator determines will cause or may cause problems in maintaining full and continuous compliance with these sections. Small municipal solid waste landfill facilities may submit a request to receive approval for an alternative plan, if sufficient justification is provided.(b) The unloading of waste in unauthorized areas is prohibited. Any waste deposited in an unauthorized area must be removed immediately and disposed of properly. Trained staff shall observe each load that is disposed at the landfill. The staff involved with unloading or inspection of waste shall have the authority and responsibility to reject unauthorized loads, have unauthorized material removed by the transporter, and/or assess appropriate surcharges, and have the unauthorized material removed by on-site personnel or otherwise properly managed by the facility. A record of unauthorized material removal must be maintained in the operating record.(c) The unloading of prohibited wastes at the municipal solid waste facility must not be allowed. Prohibited wastes are listed in §330.15(e) of this title (relating to General Prohibitions). The permit issued to the municipal solid waste facility may also prohibit other wastes. Necessary steps shall be taken by the owner or operator to ensure compliance with this provision. Any prohibited waste must be returned immediately to the transporter or generator of the waste or otherwise properly managed by the landfill.(d) Any Type I or Type IAE landfill facility may establish a brush and construction or demolition waste area on site that is designated to receive brush and construction or demolition waste.(e) At Type IV landfills, only brush and construction or demolition waste and rubbish that are free of putrescible and household waste are allowed.(f) In addition to the other operating requirements of this subchapter, Type IV landfill operators that accept rubbish shall provide the following during all periods of operation.(1) A written procedure retained on site to ensure that containers with any putrescible wastes are not accepted. This might include or be a combination of a manifest system, surcharges, contractual agreements with transporters, or other acceptable means. This written procedure must be made available for review by the executive director. The procedure must be followed and must be modified as necessary to accomplish its purpose.(2) A written procedure retained on site for the removal of any putrescible wastes and other prohibited waste to an approved disposal facility must specify the means to be used for removal of putrescible wastes illegally disposed of at the landfill. In all cases, such wastes must be removed from the working face immediately upon discharge and returned to the offending transporter's vehicle or placed in suitable collection bins and must not be allowed to remain on the landfill in the collection bins for more than 24 hours. The equipment necessary to meet the chosen alternative must be specified and must be on site and operable during operating hours. This written procedure must be made available for review by the executive director. The procedure must be followed and must be modified as necessary to accomplish its purpose.(3) A procedure whereby the transporter certifications required by §330.7(c) of this title (relating to Permit Required) must be retained at the landfill and be available for inspection by the executive director.(g) Type IV landfill owners or operators shall not accept wastes from completely enclosed containers or enclosed vehicles except in accordance with §330.169 of this title (relating to Waste in Enclosed Containers or Enclosed Vehicles Accepted at Type IV Landfills).(h) In addition to the requirements in §330.137 of this title (relating to Site Sign), Type IV landfill owners or operators shall identify wastes that are not allowed and state the landfill's requirements for transporters, such as certificates, manifests, and surcharges or other penalties that may be imposed in the event that transporters do not meet the requirements of this chapter.(i) At Type VIII facilities, only used and scrap tires free of any other type of waste are allowed to be accepted.</content><note type="source"><p>Source Note: The provisions of this §330.133 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.135"><num value="330.135">§330.135</num><heading>Facility Operating Hours</heading><content>(a) A site operating plan must specify the waste acceptance hours and the facility operating hours when materials will be transported on or off site, and the hours when heavy equipment may operate. The waste acceptance hours of a municipal solid waste facility may be any time between the hours of 7:00 a.m. and 7:00 p.m., Monday through Friday, unless otherwise approved in the authorization for the facility. Waste acceptance hours within the 7:00 a.m. to 7:00 p.m. weekday span do not require other specific approval. Transportation of materials and heavy equipment operation must not be conducted between the hours of 9:00 p.m. to 5:00 a.m., unless otherwise approved in the authorization for the facility. Operating hours for other activities do not require specific approval.(b) In addition to the requirements of subsection (a) of this section, the permit may include alternative operating hours of up to five days in a calendar-year period to accommodate special occasions, special purpose events, holidays, or other special occurrences.(c) The commission's regional offices may allow additional temporary waste acceptance or operating hours to address disasters, other emergency situations, or other unforeseen circumstances that could result in the disruption of waste management services in the area.(d) A facility must record in the site operating record the dates, times, and duration when any alternative operating hours are utilized.</content><note type="source"><p>Source Note: The provisions of this §330.135 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.137"><num value="330.137">§330.137</num><heading>Site Sign</heading><content>Each facility must conspicuously display at all entrances through which wastes are received, a sign measuring at least four feet by four feet with letters at least three inches in height stating the type of site, the hours and days of operation, an emergency 24-hour contact phone number(s) that reaches an individual with the authority to obligate the facility at all times that the facility is closed, the local emergency fire department phone number, and the permit number or facility number. The facility sign must be readable from the facility entrance. The posting of erroneous or misleading information constitutes a violation of this section.</content><note type="source"><p>Source Note: The provisions of this §330.137 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.139"><num value="330.139">§330.139</num><heading>Control of Windblown Solid Waste and Litter</heading><content>The working face must be maintained and operated in a manner to control windblown solid waste. Windblown material and litter must be collected and properly managed in accordance with paragraphs (1) and (2) of this section to control unhealthy, unsafe, or unsightly conditions.(1) Windblown waste and litter at the working face must be controlled by using engineering methods or measures, including portable panels, temporary fencing, and perimeter fencing or comparable engineering controls. A site operating plan must specify the means for confining windblown waste and litter.(2) Litter scattered throughout the site, along fences and access roads, and at the gate must be picked up once a day on the days the facility is in operation and properly managed. A site operating plan must specify the means for complying with this requirement.</content><note type="source"><p>Source Note: The provisions of this §330.139 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.141"><num value="330.141">§330.141</num><heading>Easements and Buffer Zones</heading><content>(a) Easement protection. No solid waste unloading, storage, disposal, or processing operations shall occur within any easement, buffer zone, or right-of-way that crosses the site. No solid waste disposal shall occur within 25 feet of the center line of any utility line or pipeline easement, unless otherwise authorized by the executive director. All pipeline and utility easements must be clearly marked with posts that extend at least six feet above ground level, spaced at intervals no greater than 300 feet.(b) Buffer zones. A minimum separating distance shall be maintained between solid waste processing and disposal activities within and adjacent to the facility boundary on property owned or controlled by the owner or operator as determined by the requirements of §330.543 of this title (relating to Easements and Buffer Zones). The buffer zone must provide for safe passage for fire-fighting and other emergency vehicles.</content><note type="source"><p>Source Note: The provisions of this §330.141 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.143"><num value="330.143">§330.143</num><heading>Landfill Markers and Benchmark</heading><content>(a) The owner or operator must maintain the visibility of all required landfill markers and the benchmark. The owner or operator shall inspect landfill markers on a monthly basis and maintain records of all inspections at the facility. The owner or operator shall replace markers within 15 days of removal, destruction, or a determination that the markers do not meet regulatory requirements.(b) Landfill markers must be installed to clearly mark significant features. The executive director may modify specific marker requirements to accommodate unique site-specific conditions.(1) All markers must be posts extending at least six feet above ground level. Markers must not be obscured by vegetation. Sufficient intermediate markers must be installed to show the required boundary. Markers must be installed at the following locations and color coded as follows:(A) black - facility boundary markers;(B) yellow - buffer zone markers;(C) green - easement and rights-of-way markers;(D) white - landfill grid system markers;(E) red - soil liner or geomembrane liner area markers; and(F) blue - 100-year flood protection markers.(2) Facility boundary markers must be placed at each corner of the facility and along each boundary line at intervals no greater than 300 feet. Fencing may be placed within these markers as required.(3) Markers identifying the buffer zone must be placed along each buffer zone boundary at all corners and between corners at intervals of no greater than 300 feet. Placement of the landfill grid markers may be made along a buffer zone boundary.(4) Easement and right-of-way markers must be placed along the centerline of an easement and along the boundary of a right-of-way at each corner within the facility and at the intersection of the facility boundary.(5) A landfill grid system must be installed at all solid waste landfill facilities unless written approval from the executive director has been received. The grid system must encompass at least the area expected to be filled within the next three-year period. Although grid markers must be maintained during the active life of the facility, post-closure maintenance of the grid system is recommended, but not required. Markers must be spaced no greater than 100 feet apart measured along perpendicular lines. Where markers cannot be seen from opposite boundaries, intermediate markers must be installed, where feasible.(6) Soil liner or geomembrane liner area markers must be placed so that all areas for which a soil liner evaluation report or geomembrane liner evaluation report has been submitted are readily determinable. Such markers are to provide facility workers immediate knowledge of the extent of constructed disposal areas. These markers must be located so that they are not destroyed during operations until operations extend into the next constructed area. The location of these markers must be tied into the landfill grid system and must be reported on each soil liner evaluation report or geomembrane liner evaluation report submitted. Area markers must not be placed inside constructed areas.(7) Flood protection markers must be installed for any area within a solid waste disposal facility that is within the 100-year floodplain. The area subject to flooding must be clearly marked by means of permanent posts not more than 300 feet apart or closer if necessary to retain visual continuity.(8) A permanent benchmark must be established at the facility in an area of the facility that is readily accessible and will not be used for disposal. This benchmark must be a bronze survey marker set in concrete and must have the benchmark elevation and survey date stamped on it. The benchmark elevation must be surveyed from a known United States Coast and Geodetic Survey benchmark or other reliable benchmark.</content><note type="source"><p>Source Note: The provisions of this §330.143 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.145"><num value="330.145">§330.145</num><heading>Materials Along the Route to the Site</heading><content>A facility owner or operator shall take steps to encourage that vehicles hauling waste to the facility are enclosed or provided with a tarpaulin, net, or other means to effectively secure the load in order to prevent the escape of any part of the load by blowing or spilling. The owner or operator shall take actions such as posting signs, reporting offenders to proper law enforcement officers, adding surcharges, or similar measures. On days when the facility is in operation, the owner or operator shall be responsible for at least once per day cleanup of waste materials spilled along and within the right-of-way of public access roads serving the facility for a distance of two miles in either direction from any entrances used for the delivery of waste to the facility. The facility operator shall consult with the Texas Department of Transportation, county, and/or local governments with maintenance authority over the roads concerning cleanup of public access roads and rights-of-way. An alternative clean-up frequency and distance may be approved in the site operating plan.</content><note type="source"><p>Source Note: The provisions of this §330.145 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.147"><num value="330.147">§330.147</num><heading>Disposal of Large Items</heading><content>(a) Large, heavy, or bulky items, that cannot be incorporated in the regular spreading, compaction, and covering operations at landfills should be recycled. A special area should be established to collect these items. This special collection area must be designated as a large-item salvage area. The owner or operator shall remove the items from the site often enough to prevent these items from becoming a nuisance and to preclude the discharge of any pollutants from the area.(b) Items that can be classified as large, heavy, or bulky can include, but are not limited to, white goods (household appliances), air conditioner units, metal tanks, large metal pieces, and automobiles.(c) Refrigerators, freezers, air conditioners, and any other items containing chlorinated fluorocarbon (CFC) must be handled in accordance with 40 Code of Federal Regulations §82.156, as amended.</content><note type="source"><p>Source Note: The provisions of this §330.147 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.149"><num value="330.149">§330.149</num><heading>Odor Management Plan</heading><content>The site operating plan must have an odor management plan that addresses the sources of odors and includes general instructions to control odors or sources of odors. Plans for odor management must include the identification of wastes that require special attention such as septage, grease trap waste, dead animals, and leachate.</content><note type="source"><p>Source Note: The provisions of this §330.149 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.151"><num value="330.151">§330.151</num><heading>Disease Vector Control</heading><content>A site operator shall control on-site populations of disease vectors using proper compaction and daily cover procedures, and the use of other approved methods when needed. The general methods and performance-based frequencies for disease vector control must be specified in the site operating plan.</content><note type="source"><p>Source Note: The provisions of this §330.151 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.153"><num value="330.153">§330.153</num><heading>Site Access Roads</heading><content>(a) All-weather roads must be provided from the facility to access public roads and within the facility to the unloading area(s) designated for wet-weather operation. Tracked mud and associated debris at the access to the facility on the public roadway must be removed at least once per day on days when mud and associated debris are being tracked onto the public roadway. The methods for controlling mud and associated debris tracked onto public roadways must be specified in the site operating plan.(b) Dust from on-site and other access roadways must not become a nuisance to surrounding areas. A water source and necessary equipment or other means of dust control approved by the executive director must be provided.(c) All on-site and other access roadways must be maintained in a clean and safe condition. Litter and any other debris must be picked up at least daily and taken to the working face. Access roadways must be regraded to minimize depressions, ruts, and potholes. The frequency of regrading must be specified in the site operating plan.</content><note type="source"><p>Source Note: The provisions of this §330.153 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.155"><num value="330.155">§330.155</num><heading>Salvaging and Scavenging</heading><content>Salvaging must not be allowed to interfere with prompt sanitary disposal of solid waste or to create public health nuisances. Salvaged materials may be considered as potential recycled materials. The owner or operator shall remove the salvaged items from the facility often enough to prevent the items from becoming a nuisance, to preclude the discharge of any pollutants from the area, and to prevent an excessive accumulation of the material at the facility. Class 1 industrial and other special wastes received at the disposal facility must not be salvaged. Pesticide, fungicide, rodenticide, and herbicide containers must not be salvaged unless being salvaged through a state-supported recycling program. Scavenging must not be allowed.</content><note type="source"><p>Source Note: The provisions of this §330.155 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.157"><num value="330.157">§330.157</num><heading>Endangered Species Protection</heading><content>A facility and the operation of the facility must not result in the destruction or adverse modification of the critical habitat of endangered or threatened species, or cause or contribute to the taking of any endangered or threatened species. Facilities must be operated in conformance with any endangered or threatened species protection plan required by the commission. The site operating plan should contain criteria for the protection of any identified endangered species.</content><note type="source"><p>Source Note: The provisions of this §330.157 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.159"><num value="330.159">§330.159</num><heading>Landfill Gas Control</heading><content>All landfill gases must be monitored in accordance with a landfill gas management plan in accordance with Subchapter I of this chapter (relating to Landfill Gas Management). The required reports and other submittals must be included in the operating record of the facility and submitted to the executive director.</content><note type="source"><p>Source Note: The provisions of this §330.159 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.161"><num value="330.161">§330.161</num><heading>Oil, Gas, and Water Wells</heading><content>(a) The facility operator shall provide written notification to the executive director of the location of any and all existing or abandoned water wells situated within the facility upon discovery during the course of facility development. The facility operator shall, within 30 days of such a discovery, provide the executive director with such notification and written certification that such wells have been capped, plugged, and closed in accordance with all applicable rules and regulations of the commission or other state agency. Any water well used for supply at the facility may remain in use as long as it is located outside the waste footprint, it is not impacted by landfill operations, it can be demonstrated that well design and installation will prevent any cross-contamination from the waste management unit to the water well production zone and between any water bearing zones, and an approved sampling plan to include frequency and parameters is in place. The executive director shall approve any well used to supply water at the facility that is located within the permit boundary.(b) The facility operator shall provide written notification to the executive director of the location of any and all existing or abandoned on-site crude oil or natural gas wells, or other wells associated with mineral recovery that are under the jurisdiction of the Railroad Commission of Texas. The facility owner or operator shall provide the executive director with written notification of the location of any such well within 30 days after discovery during the course of facility development. Within 30 days after plugging of any such well, the facility operator shall provide the executive director with written certification that these wells have been properly capped, plugged, and closed in accordance with all applicable rules and regulations of the Railroad Commission of Texas. Producing crude oil or natural gas wells that do not affect or hamper landfill operations may be operated within the facility boundary, if identified in the permit for the facility or in a written notification to the executive director.(c) Any water or other type of wells under the jurisdiction of the commission must be plugged in accordance with all applicable state requirements or additional requirements imposed by the executive director. A copy of the well plugging report required to be submitted to the appropriate state agency must also be submitted to the executive director within 30 days after the well has been plugged.(d) The facility operator or owner shall submit for executive director approval a permit modification application identifying any proposed changes to the liner installation plan as a result of any well abandonment.</content><note type="source"><p>Source Note: The provisions of this §330.161 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.163"><num value="330.163">§330.163</num><heading>Compaction</heading><content>Solid waste must be spread and compacted by repeated passages of compaction equipment such that each layer of solid waste is thoroughly compacted. The methods for compaction must be specified in the site operating plan.</content><note type="source"><p>Source Note: The provisions of this §330.163 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.165"><num value="330.165">§330.165</num><heading>Landfill Cover</heading><content>(a) Daily cover for Type I and Type IAE landfills. Type I and IAE landfills must apply six inches of well-compacted earthen material not previously mixed with garbage, rubbish, or other solid waste at the end of each operating day to control disease vectors, fires, odors, windblown litter or waste, and scavenging, unless the executive director requires a more frequent interval to control disease vectors, fires, odors, windblown litter or waste, and scavenging. Landfills that operate on a 24-hour basis must cover the working face or active disposal area at least once every 24 hours. The executive director may require a chemical analysis of any landfill cover material. Runoff from areas that have intact daily cover is not considered as having come into contact with the working face or leachate.(b) Daily cover for Type IV and Type IVAE landfills. All Type IV facilities must follow the requirements of this section except the rate of cover must be no less than weekly, unless the executive director approves another schedule. The executive director may require a chemical analysis of any landfill cover material. Runoff from areas that have intact weekly cover is not considered as having come into contact with the working face or leachate.(c) Intermediate cover. All areas that have received waste but will be inactive for longer than 180 days must provide intermediate or final cover. This intermediate cover must include six inches of suitable earthen material that is capable of sustaining native plant growth and must be seeded or sodded following its application in order to control erosion, or must be a material approved by the executive director that will otherwise control erosion. This intermediate cover must not be less than 12 inches of suitable earthen material. The intermediate cover must be graded to prevent ponding of water. Plant growth or other erosion control features must be maintained. Runoff from areas that have intact intermediate cover is not considered as having come into contact with the working face or leachate.(d) Alternative daily cover. Alternative daily cover may only be allowed by a temporary authorization under §305.62(k) of this title (relating to Amendments) followed by a major amendment or a modification in accordance with §305.70(k)(1) of this title. Use of alternative daily cover is limited to a 24-hour period after which either waste or daily cover as defined in subsection (a) of this section must be placed.(1) An alternative daily cover operating plan must be included in the request for temporary authorization or in a site development plan that includes the following:(A) a description and minimum thickness of the alternative material to be used;(B) its effect on vectors, fires, odors, and windblown litter and waste;(C) the application and operational methods to be utilized at the site when using this alternative material;(D) chemical analysis of the material and/or the Material Safety Data Sheet(s) for the alternative material; and(E) any other pertinent characteristic, feature, or other factors related to the use of this alternative material.(2) A status report on the alternative daily cover must be submitted on a two-month basis to the executive director during the temporary authorization period describing the effectiveness of the alternative material, any problems that may have occurred, and corrective actions required as a result of such problems. If no unresolved problems have occurred within the temporary authorization period, status reports may no longer be required.(3) Alternative daily cover must not be allowed when the landfill is closed for a period greater than 24 hours, unless the executive director approves an alternative length of time.(4) For contaminated soil proposed to be used as alternative daily cover in a municipal solid waste landfill, the constituents of concern shall not exceed the concentrations listed in Table 1, Constituents of Concern and Their Maximum Leachable Concentrations, located in §335.521(a)(1) of this title (relating to Appendices). Additionally, the contaminated soil must not contain:(A) polychlorinated biphenyl wastes that are subject to the disposal requirements of 40 Code of Federal Regulations Part 761; or(B) total petroleum hydrocarbons in concentrations greater than 1,500 milligrams per kilogram. The owner or operator may submit a demonstration for executive director approval that material exceeding 1,500 milligrams per kilogram (mg/kg) total petroleum hydrocarbons can be a suitable alternative daily cover. The demonstration shall include information regarding the risk to human health and the environment and the information required in paragraph (1) of this subsection. If approved, the executive director may impose additional permit requirements regarding the use of this material.(5) Alternative daily cover must not exceed constituent limitations imposed on waste authorized to be disposed at the facility.(6) The executive director may require the owner or operator to test runoff from areas that have alternative daily cover for compliance with Texas Pollutant Discharge Elimination System storm water discharge limits or manage the runoff as contaminated water.(e) Temporary waiver. The executive director may grant a temporary waiver from the requirements of subsections (a) - (d) of this section if the owner or operator demonstrates that there are extreme seasonal climatic conditions that make meeting such requirements impractical.(f) Final cover. Final cover for the landfill must be in accordance with the site closure plan and Subchapter K of this chapter (relating to Closure and Post-Closure).(g) Erosion of cover. Erosion gullies or washed-out areas deep enough to jeopardize the final or intermediate cover must be repaired within five days of detection by restoring the cover material, grading, compacting, and seeding unless the commission's regional office approves otherwise, based on the extent of the damage requiring more time to repair or the repairs are delayed because of weather conditions. An eroded area is considered to be deep enough to jeopardize the final or intermediate cover if it exceeds four inches in depth as measured from the vertical plane from the erosion feature and the 90-degree intersection of this plane with the horizontal slope face or surface. The date of detection of erosion and date of completion of repairs, including reasons for any delays, must be documented in the cover inspection record required under subsection (h) of this section. The site operating plan must establish a frequency, and identify other occasions, for conducting inspections of the final and intermediate covers to detect the need for repairs. The periodic inspections and restorations are required during the entire operational life and for the post-closure maintenance period.(h) Cover inspection record. Each landfill must keep a cover application record on site readily available for inspection by commission representatives and authorized agents or employees of local governments having jurisdiction. This record must specify the date cover (no exposed waste) was accomplished, how it was accomplished, and the last area covered. This applies to daily, intermediate, and alternative daily cover. For final cover, this record must specify the area covered, the date cover was applied, and the thickness applied that date. Each entry must be certified by the signature of the on-site supervisor that the work was accomplished as stated in the record. The cover inspection record must document inspections required under subsection (g) of this section, the findings, and corrective action taken when necessary.</content><note type="source"><p>Source Note: The provisions of this §330.165 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.167"><num value="330.167">§330.167</num><heading>Ponded Water</heading><content>The ponding of water over waste on a landfill, regardless of its origin, must be prevented. Ponded water that occurs in the active portion of a landfill or on a closed landfill must be eliminated and the area in which the ponding occurred must be filled in and regraded within seven days of the occurrence. A ponding prevention plan must be provided in the site operating plan that identifies techniques to be used at the landfill to prevent the ponding of water over waste, an inspection schedule to identify potential ponding sites, corrective actions to remove ponded water, and general instructions to manage water that has been in contact with waste.</content><note type="source"><p>Source Note: The provisions of this §330.167 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.169"><num value="330.169">§330.169</num><heading>Waste in Enclosed Containers or Enclosed Vehicles Accepted at Type IV Landfills</heading><content>Acceptance of waste in enclosed containers or enclosed vehicles at Type IV landfills must be in accordance with the following requirements.(1) Waste in enclosed containers or enclosed vehicles must not be accepted at a Type IV landfill unless all of the following conditions have been met.(A) The landfill to receive the waste must be participating in the funding program to monitor these activities as detailed in paragraph (2) of this section.(B) Each enclosed container or enclosed vehicle must have all required approvals and/or permits from the executive director in accordance with §330.7 of this title (relating to Permit Required).(C) Enclosed containers or enclosed vehicles must only be accepted at their designated time and on the specified day in accordance with this section, commission permits, or other orders of the commission.(D) A commission inspector shall be on site and shall witness the unloading process to ensure that no putrescible waste or household waste is present. Any waste considered non-allowable by the inspector must be removed from the working face and subsequently from the facility in accordance with §330.133 of this title (relating to Unloading of Waste).(E) Each transporter delivering waste in enclosed containers or enclosed vehicles must, prior to discharging the load, provide to the landfill operator a transporter trip ticket for the route being delivered. Trip tickets must be maintained as part of the operating record.(F) The commission may revoke a transporter's authorization to deliver waste to a Type IV landfill for failure to comply with this chapter.(2) The executive director shall determine the approximate annual costs of implementing and maintaining the surveillance and enforcement of all the activities associated with the acceptance of enclosed containers or enclosed vehicles at Type IV landfills.(A) Notification of these costs will be provided to each affected holder of a Type IV landfill permit with notice of public hearing to apportion these costs.(B) The public hearing will be held at a location to be determined by the commission with at least a 20-day advance notice. Notice will be provided to Type IV landfill operators by regular and certified mail.(C) The public hearing will be for the purpose of establishing the total compensation and expenditures required to administer this program and the apportionment of those costs to the Type IV landfill operators to be reimbursed to the commission.(D) Unless authorized by the executive director, the apportioned monthly payments will be due by the tenth day of each month.(E) The apportioned costs to each Type IV landfill may be altered periodically to add or subtract landfills from the program. A 30-day notice will be provided to each participating Type IV landfill and/or proposed additional landfill and a hearing will be held, upon request, by one of the affected parties or on the commission's own motion.(3) A Type IV landfill operator who is delinquent in making the monthly payment shall immediately halt acceptance of waste in enclosed containers or enclosed vehicles and may also be subject to other penalties allowable under state law.(4) Stationary compactors permitted in accordance with §330.7 of this title (relating to Permit Required) and municipalities having transporter routes permitted in accordance with §330.7 of this title are exempt from the requirements of paragraphs (1) - (3) of this section. However, the landfill operator shall obtain from the transporter a hauler trip ticket for a municipal transporter route or stationary compactors, as appropriate, prior to allowing discharge of the material at the landfill. These trip tickets must be maintained as a part of the operating record.</content><note type="source"><p>Source Note: The provisions of this §330.169 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.171"><num value="330.171">§330.171</num><heading>Disposal of Special Wastes</heading><content>(a) Type IV and Type IVAE landfills may accept special wastes consistent with the limitations established in §330.5(a)(2) of this title (relating to Classification of Municipal Solid Waste Facilities) and the waste acceptance plan required by §330.61(b) of this title (relating to Contents of Part II of the Application).(b) The acceptance and/or disposal of a special waste as defined in §330.3 of this title (relating to Definitions), that is not specifically identified in subsection (c) or (d) of this section, or in §330.173 of this title (relating to Disposal of Industrial Wastes), requires prior written approval from the executive director.(1) Approvals will be waste-specific and/or site-specific and will be granted only to appropriate facilities operating in compliance with this chapter.(2) Requests for approval to accept special wastes must be submitted by the generator to the executive director or to a facility with an approved Special Waste Management Plan and must include, but are not limited to, the following:(A) a complete description of the chemical and physical characteristics of each waste, a statement as to whether or not each waste is a Class 1 industrial waste as defined in §330.3 of this title, and the quantity and rate at which each waste is produced and/or the expected frequency of disposal;(B) for Class 1 industrial solid waste, a hazardous waste determination as required by §335.504 of this title (relating to Hazardous Waste Determination);(C) an operational plan containing the proposed procedures for handling each waste and listing required protective equipment for operating personnel and on-site emergency equipment; and(D) a contingency plan outlining responsibility for containment and cleanup of any accidental spills occurring during the delivery and/or disposal operation.(3) A vacuum truck, as used in this section, refers to any vehicle that transports liquid waste to a solid waste disposal or processing facility. A vacuum truck must transport liquid waste to a landfill that has a sludge stabilization and solidification process or to a Type V processing facility for sludge, grease trap, or grit trap waste. The owner or operator shall submit written notification to the executive director of the liquids-processing activity as required in §330.11 of this title (relating to Notification Required).(4) Soils contaminated by petroleum products, crude oils, or chemicals in concentrations of greater than 1,500 milligram per kilogram (mg/kg) total petroleum hydrocarbons; or contaminated by constituents of concern that exceed the concentrations listed in Table 1, Constituents of Concern and Their Maximum Leachable Concentrations in §335.521(a)(1) of this title (relating to Appendices) must be disposed in dedicated cells that meet the requirements of §330.331(e) of this title (relating to Design Criteria).(5) The executive director may authorize the receipt of special waste with a written concurrence from the owner or operator; however, the facility operator is not required to accept the waste.(6) The executive director may revoke an authorization to accept special waste if the owner or operator does not maintain compliance with these rules or conditions imposed in the authorization to accept special waste.(c) Receipt of the following special wastes does not specifically require written authorization for acceptance provided the waste is handled in accordance with the noted provisions for each waste.(1) Medical wastes that have not been treated in accordance with the procedures specified in Chapter 326 of this title (relating to Medical Waste Management) must not be accepted at a landfill unless authorized in writing by the executive director. The executive director may provide this authorization when a situation exists that requires disposal of untreated medical wastes in order to protect the human health and the environment from the effects of a natural or man-made disaster.(2) Dead animals and/or slaughterhouse waste may be accepted at any Type I or Type IAE landfill without further approval from the executive director provided the carcasses and/or slaughterhouse waste are covered by three feet of other solid waste or at least two feet of earthen material immediately upon receipt.(3) Regulated asbestos-containing material (RACM) as defined in 40 Code of Federal Regulations Part 61 may be accepted at a Type I or Type IAE landfill in accordance with subparagraphs (A) - (I) of this paragraph provided the landfill has been authorized to accept RACM. The facility operator proposing to accept RACM shall provide written notification to the executive director of the intent to accept RACM.(A) To receive authorization to accept RACM, the owner or operator shall dedicate a specific area or areas of the landfill to receive RACM and shall provide written notification to the executive director of the area or areas to be designated for receipt of RACM. After initial authorization to receive RACM is issued, additional areas may be designated by providing written notice to the executive director.(B) The location of the area designated to receive the RACM must be surveyed and marked by a registered professional land surveyor and identified on a current site diagram that is maintained at the landfill. A copy of the current site diagram identifying the RACM area must be submitted to the executive director immediately upon completion of the diagram. The operator shall maintain a record of each load of RACM accepted as to its location, depth, and volume of material.(C) Upon closure of the unit that accepted RACM, a specific notation that the facility accepted RACM must be placed in the deed records for the facility with a diagram identifying the RACM disposal areas. Concurrently, a notice of the deed recordation and a copy of the diagram identifying the asbestos disposal areas must be submitted to the executive director.(D) Delivery of the RACM to the landfill unit must be coordinated with the on-site supervisor so the waste will arrive at a time it can be properly handled and covered.(E) RACM must only be accepted at the facility in tightly closed and unruptured containers or bags or must be wrapped with at least six-mil polyethylene.(F) The bags or containers holding the RACM must be placed below natural grade level. Where this is not possible or practical, provisions must be made to ensure that the waste will not be subject to future exposure through erosion or weathering of the intermediate and/or final cover. RACM that is placed above natural grade must be located in the landfill unit such that it is, at closure of the landfill unit, not less than 20 feet from any final side slope of the unit and must be at least ten feet below the final surface of the unit.(G) The bags or containers holding the RACM must be carefully unloaded and placed in the final disposal location. The RACM must be covered immediately with 12 inches of earthen material or three feet of solid waste containing no asbestos. Care must be exercised in the application of the cover so that the bags or containers are not ruptured.(H) A contingency plan in the event of accidental spills (e.g., ruptured bags or containers) shall be prepared by the owner or operator prior to accepting RACM. The plan must specify the responsible person(s) and the procedure for the collection and disposal of the spilled material.(I) RACM that has been designated as a Class 1 industrial waste may be accepted by a Type I landfill authorized to accept RACM provided the RACM waste is handled in accordance with the provisions of this paragraph and the landfill operator complies with the provisions of §330.173(g) - (i) of this title.(4) Nonregulated asbestos-containing materials (non-RACM) may be accepted for disposal at a Type I, Type IAE, Type IV, or Type IVAE landfill provided the wastes are placed on the active working face and covered in accordance with this chapter. Under no circumstances may any material containing non-RACM be placed on any surface or roadway that is subject to vehicular traffic or disposed of by any other means by which the material could be crumbled into a friable state.(5) Empty containers that have been used for pesticides, herbicides, fungicides, or rodenticides must be disposed of in accordance with subparagraphs (A) and (B) of this paragraph.(A) These containers may be disposed of at any landfill provided that:(i) the containers are triple-rinsed prior to receipt at the landfill;(ii) the containers are rendered unusable prior to or upon receipt at the landfill; and(iii) the containers are covered by the end of the same working day they are received.(B) Those containers for which triple-rinsing is not feasible or practical (e.g., paper bags, cardboard containers) may be disposed of under the provisions of paragraph (6) of this subsection or in accordance with §330.173 of this title, as applicable.(6) Municipal hazardous waste from a very small quantity generator (VSQG) may be accepted at a Type I or Type IAE landfill without further approval from the executive director provided the hazardous waste is not regulated hazardous waste, was not generated by a VSQG during a calendar month in which the VSQG generated hazardous waste during an episodic event, and the amount of hazardous waste does not exceed 220 pounds (100 kilograms) per month per generator, and provided the landfill owner or operator authorizes acceptance of the waste.(7) Sludge, grease trap waste, grit trap waste, or liquid wastes from municipal sources can be accepted at a Type I or Type IAE landfill for disposal only if the material has been, or is to be, treated or processed and the treated/processed material has been tested, in accordance with Test Method 9095 (Paint Filter Liquids Test), as described in "Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods" (United States Environmental Protection Agency Publication Number SW-846), as amended, and is certified to contain no free liquids. Prior to treatment or processing of this waste at the landfill, the owner or operator shall submit written notification to the executive director of the liquids processing activity as required in §330.11 of this title.(d) Used oil filters from internal combustion engines must not be intentionally and knowingly accepted for disposal at landfills permitted under this chapter except as provided in paragraphs (1) and (2) of this subsection.(1) Used oil filters must not be offered for disposal by a generator and/or be intentionally and knowingly accepted for landfill disposal unless the filter has been:(A) crushed to less than 20% of its original volume to remove all free-flowing used oil; or(B) processed by a method other than crushing to remove all free-flowing used oil. A filter is considered to have been processed if:(i) the filter has been separated into component parts and the free-flowing used oil has been removed from the filter element by some means of compression in order to remove free-flowing used oil;(ii) the used filter element of a filter consisting of a replaceable filtration element in a reusable or permanent housing has been removed from the housing and pressed to remove free-flowing used oil; or(iii) the housing is punctured and the filter is drained for at least 24 hours.(2) Used oil filters (to include filters that have been crushed and/or processed to remove free-flowing used oil) must not be offered for landfill disposal by any non-household generator and must not be intentionally or knowingly accepted by any landfill permitted and regulated under this chapter.</content><note type="source"><p>Source Note: The provisions of this §330.171 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective May 26, 2016, 41 TexReg 3735; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.173"><num value="330.173">§330.173</num><heading>Disposal of Industrial Wastes</heading><content>(a) Except as specified in subsection (c) of this section, Class 1 industrial solid waste shall not be disposed in a Type IAE landfill unit.(b) Generators shall manifest Class 1 industrial solid waste as required by §335.10 of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste). Owners or operators of municipal solid waste landfill facilities shall not accept such wastes without prior written approval from the executive director and specific authorization in the permit.(c) Wastes that are Class 1 only because of asbestos content may be accepted at any Type I or Type IAE landfill that is authorized to accept regulated asbestos-containing material (RACM) as stated in §330.171(c)(3)(I) of this title (relating to Disposal of Special Wastes). Authorization to accept this waste is implied in the authorization to accept RACM unless the acceptance of industrial wastes is prohibited by the permit. All Class 1 industrial asbestos wastes must be manifested and the owner or operator of the landfill facility shall comply with the requirements of subsections (g) and (h) of this section.(d) Unless the facility permit authorizes the acceptance of a specified type of Class 1 industrial waste, an authorization to accept specific types of Class 1 wastes will be waste-specific and site-specific and will be granted only to appropriate facilities that are operating in compliance with this chapter. Requests for authorization to accept Class 1 solid wastes must be submitted in writing to the executive director and must include, but are not limited to, the following:(1) a complete description of the chemical and physical characteristics of the waste in accordance with §335.587 of this title (relating to Waste Analysis), a statement as to whether or not the waste is a hazardous waste as defined in §330.3 of this title (relating to Definitions), and the quantity and rate at which the waste is produced and/or the expected frequency of disposal;(2) an operational plan containing the proposed procedures for handling the waste and a listing of required protective equipment for operating personnel and on-site emergency equipment. This plan must become a part of the site operating plan; and(3) a written contingency plan meeting the requirements of §335.589 of this title (relating to Contingency Plan). This plan shall become a part of the site operating plan.(e) Unless specifically authorized by the facility permit, a Type I or Type IAE landfill facility permitted after October 9, 1993, may not accept Class 1 industrial solid wastes in excess of 20% of the total amount of waste (not including Class 1 wastes) accepted during the current or previous year. The amount of waste may be determined by volume or by weight, but the same unit of measure must be used for each year, unless a variance is authorized by the executive director.(f) Any authorization to accept Class 1 waste is subject to the site operating in compliance with these rules and any specific conditions required under any letter(s) of authorization. Failure to operate the site in compliance with these rules or any special conditions imposed by the executive director may result in revocation of the authorization to accept a Class 1 waste.(g) All shipments of Class 1 waste must be accompanied by a manifest in compliance with §335.10(c) of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste). The facility operator shall comply with the manifest requirements in §335.15(1) and (3) of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities). The facility operator shall not accept or sign for shipments of Class 1 waste for which the authorization to accept has not been granted by the executive director or has not been authorized by permit provisions. The facility operator shall retain the disposal facility copy of the manifest for a period of three years. This time period is automatically extended if any enforcement action involving the owner, operator, or landfill facility is initiated or pending by the executive director.(h) A facility that accepts any Class 1 waste must submit to the executive director a written report of Class 1 waste received. This report must be submitted no later than the 25th day of the month following the month that the waste was received. Reports must be submitted on forms provided by the commission and must include all information required. Monthly reports must be submitted by facilities that have received Class 1 wastes including those months in which no Class 1 waste is received at the facility unless an exception is granted by the executive director. Failure to submit the reports required by this subsection in a timely manner is a violation of these rules.(i) Class 2 industrial solid waste, except special wastes as defined in §330.3 of this title, may be accepted at any Type I or Type IAE landfill provided the acceptance of this waste does not interfere with facility operation. Type IV and Type IVAE landfills may accept Class 2 industrial solid waste consistent with the limitations established in §330.5(a)(2) of this title (relating to Classification of Municipal Solid Waste Facilities) and the waste acceptance plan required by §330.61(b) of this title (relating to Contents of Part II of the Application).(j) Class 3 industrial solid waste may be disposed of at a Type I, Type IAE, Type IV, or Type IVAE landfill provided the acceptance of this waste does not interfere with facility operation.</content><note type="source"><p>Source Note: The provisions of this §330.173 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.175"><num value="330.175">§330.175</num><heading>Visual Screening of Deposited Waste</heading><content>Visual screening of deposited waste materials at a municipal solid waste facility must be provided by the owner or operator for the facility where the executive director determines that screening is necessary or as required by the permit.</content><note type="source"><p>Source Note: The provisions of this §330.175 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.177"><num value="330.177">§330.177</num><heading>Leachate and Gas Condensate Recirculation</heading><content>The owner or operator may recirculate leachate or gas condensate derived from a landfill unit into a Type I landfill unit at the same facility if the Type I landfill unit is designed and constructed with a leachate collection system and a composite liner. The owner or operator shall make the procedure for leachate or gas condensate recirculation a part of the site operating plan. The owner or operator is not required to characterize leachate and gas condensate that is being recirculated into an approved Type I landfill unit. The owner or operator is not required to characterize leachate and gas condensate sent to a publicly owned treatment works or Resource Conservation and Recovery Act authorized facility beyond that required by the treatment facility.</content><note type="source"><p>Source Note: The provisions of this §330.177 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scD/s330.179"><num value="330.179">§330.179</num><heading>Operational Standards for Class 1 Industrial Solid Waste Management at a Municipal Solid Waste Type I or Type IAE Landfill Facility</heading><content>(a) The owner or operator of a municipal solid waste Type I or Type IAE landfill facility managing Class 1 industrial solid waste shall comply with the following requirements:(1) §335.585 of this title (relating to General Inspection Requirements);(2) §335.586 of this title (relating to Personnel Training);(3) §335.587 of this title (relating to Waste Analysis);(4) §335.588 of this title (relating to General Requirements for Ignitable, Reactive, or Incompatible Wastes);(5) §335.589 of this title (relating to Contingency Plan); and(6) §335.590(25) of this title (relating to Operational and Design Standards).(b) Nonhazardous industrial waste may be placed above natural grade provided that the conditions in §335.590(24)(F)(i) - (vi) of this title are met, except as provided in §335.590(24)(F)(vii) of this title.</content><note type="source"><p>Source Note: The provisions of this §330.179 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scE"><num value="E">SUBCHAPTER E</num><heading>OPERATIONAL STANDARDS FOR MUNICIPAL SOLID WASTE STORAGE AND PROCESSING UNITS</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.201"><num value="330.201">§330.201</num><heading>Applicability</heading><content>(a) This subchapter applies to the operation of municipal solid waste storage and processing units. If separate authorizations are required to conduct storage and processing activities at a permitted landfill facility, those activities are subject to this subchapter and the commission may reconcile any conflicting site operating plan provisions between this subchapter and Subchapter D of this chapter (relating to Operational Standards for Municipal Solid Waste Landfill Facilities).(b) Permits and registrations for units that existed before the comprehensive rule revisions in this chapter as adopted in 2006 (2006 Revisions) became effective remain valid, except as provided by this subchapter. The permittee or registrant is under an obligation to apply for a modification within 180 days, unless approved otherwise by the executive director, in accordance with §305.70(k) of this title (relating to Municipal Solid Waste Permit and Registration Modifications), as applicable, to incorporate the 2006 Revisions. The application will be processed as a modification requiring public notice and any subsequent applications will be processed in accordance with Chapter 305, Subchapter D of this title (relating to Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits). Timely submission of a request for a modification qualifies the owners or operators of existing units to operate under requirements contained in the existing authorization.</content><note type="source"><p>Source Note: The provisions of this §330.201 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.203"><num value="330.203">§330.203</num><heading>Waste Acceptance and Analysis</heading><content>(a) The owner or operator shall identify the sources and characteristics of wastes (e.g., residential, commercial, grease trap, grit trap, sludges, septage, special wastes, Class 1, Class 2, or Class 3 industrial solid wastes, compost feedstocks) proposed to be received for storage or processing. Municipal solid waste facilities may not receive regulated hazardous waste, unless authorized in accordance with Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste). If a waste constituent or characteristic could be a limiting parameter that may impact or influence the design and operation of the facility, the owner or operator shall specify parameter limitations of each type of waste to be managed by the facility that may include constituent concentrations and characteristics such as pH, fats, oil and grease concentrations, total suspended solids, chemical oxygen demand, biochemical oxygen demand, organic and metal constituent concentrations, water content, or other constituents.(b) The owner or operator shall determine types and an estimate of the amount of each waste to be received daily; the maximum amount of waste to be stored at any one point in time; the maximum and average lengths of time that waste is to remain at the facility; the maximum and average waste processing times; and the intended destination of the solids and liquids generated by a facility. If applicable, a narrative must be included that describes how 10% of the incoming waste will be recovered and its intended use.(c) For solid waste processing and experimental facilities, the following requirements apply.(1) The owner or operator shall establish the method of sampling and analysis for the effluent discharged to a trap, interceptor, or treatment facility permitted under Texas Water Code, Chapter 26. At a minimum, the method of sampling, the frequency of sampling, and the tests to be made shall be part of the sampling and analysis plan. All sampling and analysis shall be done according to approved United States Environmental Protection Agency (EPA) methods. Records shall be maintained for a three-year period.(2) At a minimum, analyses for wastes received shall be made for benzene, lead, and total petroleum hydrocarbons (TPH). Grit trap wastes must be analyzed annually for biochemical oxygen demand, total suspended solids, benzene, TPH, and lead. Sludges that are disposed of at a municipal solid waste landfill must be analyzed annually for benzene, lead, and TPH. At a minimum, effluent from the facility must be analyzed annually for TPH, fats, oil and grease, and pH. Records of each analysis shall be maintained at the facility for a minimum of three years. All sampling and analysis shall be done according to EPA-approved methods.</content><note type="source"><p>Source Note: The provisions of this §330.203 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.205"><num value="330.205">§330.205</num><heading>Facility-Generated Wastes</heading><content>(a) The operator of a storage or processing facility shall specify the characteristics and constituent concentrations of wastes generated by the facility. The owner or operator must be able to provide documentation that all wastes leaving the facility can be adequately managed by other facilities, licensed or permitted by the appropriate agencies to receive such wastes, at the volumes and concentrations estimated in the facility design. (b) Wastes generated by a facility must be processed or disposed at an authorized solid waste management facility. (c) Wastewaters generated by a facility shall be managed in accordance with §330.207 of this title (relating to Contaminated Water Management). (d) The facility shall be designed and operated in a manner that sludges produced pass the Paint Filter Liquids Test, (United States Environmental Protection Agency (EPA) Method 9095) as described in "Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods" (EPA Publication Number SW-846, September 1986). The facility shall be designed and operated to produce a sludge that is acceptable at municipal solid waste landfills and does not exceed the following standards. Sludges exceeding these limits shall not be disposed in municipal solid waste landfills and must be sent to an authorized facility for further processing or disposal as a hazardous waste, as appropriate or disposed in a municipal solid waste landfill with dedicated Class 1 industrial solid waste cells if the sludge is nonhazardous. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §330.205 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.207"><num value="330.207">§330.207</num><heading>Contaminated Water Management</heading><content>(a) All liquids resulting from the operation of solid waste facilities shall be disposed of in a manner that will not cause surface water or groundwater pollution. The owner or operator may send wastewater off site to an authorized facility or shall provide for the treatment of wastewaters resulting from managing the waste or from cleaning and washing. The owner or operator shall not discharge contaminated water without specific written authorization. Except as provided in subsection (b) of this section, the owner or operator shall provide a connection into a public sewer system, a septic system, or a small wastewater treatment plant. On-site wastewater treatment systems shall comply with Chapter 285 of this title (relating to On-site Sewage Facilities). The owner or operator shall obtain any permit or other approval required by state or local code for the system installed. (b) Contaminated water and leachate shall be collected and contained until properly managed. Collection units other than storage tanks shall have a clay or synthetic liner and the liner shall be constructed in accordance with §330.331(b) of this title (relating to Design Criteria). One foot of freeboard for the 25-year, 24-hour rainfall event shall be provided. (c) The use of leachate and gas condensate in any mining process is prohibited. (d) Facilities that process grease trap waste, grit trap waste, or septage; mobile liquid waste processing units; and demonstration projects for liquid waste processing facilities shall not discharge to a septic system. (e) Off-site discharge of contaminated waters shall be made only after approval under the Texas Pollutant Discharge Elimination System authority. (f) Wastewaters discharged to a treatment facility permitted under Texas Water Code, Chapter 26 must not: (1) interfere with or pass-through the treatment facility processes or operations; (2) interfere with or pass-through its sludge processes, use, or disposal; or (3) otherwise be inconsistent with the prohibited discharge standards, including 40 Code of Federal Regulations Part 403, General Pretreatment Regulations for Existing and New Source Pollution. (g) The daily effluent design standard for oil and grease concentration leaving the facility and entering a public sewer system shall not exceed 200 milligrams per liter, the concentration established in the wastewater discharge permit pretreatment limit or the concentration established by the treatment facility permitted under Texas Water Code, Chapter 26, the National Pollutant Discharge Elimination System, or the following liquid effluent limits, if the discharge points do not require compliance with locally set limits. Attached Graphic(h) Lagoons, open-top storage tanks, open vessels, and underground storage units are prohibited at liquid waste transfer facilities.</content><note type="source"><p>Source Note: The provisions of this §330.207 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.209"><num value="330.209">§330.209</num><heading>Storage Requirements</heading><content>(a) All solid waste shall be stored in such a manner that it does not constitute a fire, safety, or health hazard or provide food or harborage for animals and vectors, and shall be contained or bundled so as not to result in litter. It shall be the responsibility of the occupant of a residence or the owner or manager of an establishment to utilize storage containers of an adequate size and strength, and in sufficient numbers, to contain all solid waste that the residence or establishment generates in the period of time between collections.(b) An on-site storage area for source-separated or recyclable materials should be provided that is separate from a transfer station or process area. Control of odors, vectors, and windblown waste from the storage area shall be maintained.(c) For the process area of transfer stations that recover material from solid waste that contains putrescibles and for liquid waste processing units, processed and unprocessed waste and recycled materials shall be stored in an enclosed building, vessel, or container.</content><note type="source"><p>Source Note: The provisions of this §330.209 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.211"><num value="330.211">§330.211</num><heading>Approved Containers</heading><content>All solid waste containing food wastes shall be stored in covered or closed containers that are leakproof, durable, and designed for safe handling and easy cleaning.(1) Nonreusable containers. Nonreusable containers shall be of suitable strength to minimize animal scavenging or rupturing during collection operations.(2) Reusable containers. Reusable containers must be maintained in a clean condition so that they do not constitute a nuisance and to retard the harborage, feeding, and propagation of vectors.(A) All containers to be emptied manually must be capable of being serviced without the collector coming into physical contact with the solid waste.(B) Containers to be mechanically handled must be designed to prevent spillage or leakage during storage, handling, or transport.</content><note type="source"><p>Source Note: The provisions of this §330.211 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.213"><num value="330.213">§330.213</num><heading>Citizen's Collection Stations</heading><content>(a) Citizen's collection stations shall be provided with the type and quantity of containers compatible with the areas to be served. Rules shall be posted governing the use of the facility to include who may use it, what may or may not be deposited, etc. The responsible person that owns or operates the collection center shall provide for the collection of deposited waste on a scheduled basis and supervise the facility in order to maintain it in a sanitary condition.(b) A citizen's collection station may accept sharps from single-family or multi-family dwellings, hotels, motels, or other establishments that provide lodging and related services for the public. The sharps will not be considered medical waste, as defined in §330.3 of this title (relating to Definitions).</content><note type="source"><p>Source Note: The provisions of this §330.213 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.215"><num value="330.215">§330.215</num><heading>Requirements for Stationary Compactors</heading><content>Operational standards for permitted stationary compactors are as follows.(1) Stationary compactors shall be operated and maintained in such a way as not to create a public nuisance through material loss or spillage, odor, vector breeding or harborage, or other condition.(2) The certificate within the application and the provisions of the permit must be adhered to at all times.</content><note type="source"><p>Source Note: The provisions of this §330.215 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.217"><num value="330.217">§330.217</num><heading>Pre-Operation Notice</heading><content>(a) Type V mobile liquid waste processing unit demonstration of viability.(1) The owner or operator shall not initiate operation of each unit until a pre-operation inspection of each mobile unit has been conducted and the executive director gives written authorization to accept waste. The owner or operator shall demonstrate under field conditions that the process works. The demonstration shall be conducted under the supervision of experienced executive director staff and when appropriate, with local government staff. The viability demonstration shall be made by processing three traps in a single day representative of the traps normally serviced. The traps must have been in operation and not have been serviced for at least 30 days prior to the demonstration. The volume of material to be processed before unloading must be consistent with manufacturer's performance special and the operating plan, particularly as to the expected ratios between gross volumes processed and amounts discharged following processing. Multiple grab samples of effluent taken from the discharge outlet of the mobile processing unit must be tested for fats, oils, greases, and pH and be designed and operated to meet the effluent limits imposed by its treatment facility permitted under Texas Water Code, Chapter 26, Texas Pollutant Discharge Elimination System, or the liquid effluent limits specified in §330.207(g) of this title (relating to Contaminated Water Management) if the discharge points do not require compliance with locally set limits.(2) Waste solids (sludges) produced by the mobile processing unit must be disposed of in a solid waste disposal facility regulated by the State of Texas or other location approved by the executive director. Solids should be dewatered to the point that they pass the United States Environmental Protection Agency (EPA) paint filter test, EPA Test Method 9095, or they should be taken to an authorized facility to be dewatered prior to landfilling.(3) The owner or operator shall remain responsible for making corrections or changes that are necessary to meet requirements prior to operating the mobile unit.(b) Type VI demonstration projects for liquid waste processing facilities. The operation of the facility shall not begin until a pre-opening inspection has been conducted and written authorization to accept waste has been given by the executive director.</content><note type="source"><p>Source Note: The provisions of this §330.217 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.219"><num value="330.219">§330.219</num><heading>Recordkeeping and Reporting Requirements</heading><content>(a) A copy of the permit or registration, the approved permit or registration application, and any other required plan or other related document shall be maintained at the municipal solid waste facility at all times during construction. After completion of construction, an as-built set of construction plans and specifications shall be maintained at the facility or at an alternative location approved by the executive director. These plans shall be made available for inspection by agency representatives or other interested parties. These documents shall be considered a part of the operating record for the facility.(b) The owner or operator shall promptly record and retain in an operating record, the following information:(1) all location-restriction demonstrations;(2) inspection records and training procedures;(3) closure plans and any monitoring, testing, or analytical data relating to closure requirements;(4) all cost estimates and financial assurance documentation relating to financial assurance for closure;(5) copies of all correspondence and responses relating to the operation of the facility, modifications to the permit, approvals, and other matters pertaining to technical assistance;(6) all documents, manifests, shipping documents, trip tickets, etc., involving special waste;(7) any other document(s) as specified by the approved authorization or by the executive director;(8) record retention provisions for trip tickets as required by §312.145 of this title (relating to Transporters--Recordkeeping); and(9) recordkeeping provisions to justify, on a quarterly basis, that the relevant percentage of the incoming waste is processed to recover recycled products for applicable facilities. Failure to achieve the relevant percent recycling rate in any two quarters within any one-year period will cause a change in a facility's status and require the owner or operator of the facility to obtain a registration or permit, as appropriate, to continue facility operations. The owner or operator shall submit an annual report to the executive director by March 1st summarizing the recycling activities and percent of incoming solid waste that was recycled during the past calendar year.(c) For signatories to reports, the following conditions apply.(1) The owner or operator shall sign all reports and other information requested by the executive director as described in §305.44(a) of this title (relating to Signatories to Applications) or by a duly authorized representative of the owner or operator. A person is a duly authorized representative only if:(A) the authorization is made in writing by the owner or operator as described in §305.44(a) of this title;(B) the authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity or for environmental matters for the owner or operator, such as the position of plant manager, environmental manager, or a position of equivalent responsibility. A duly authorized representative may thus be either a named individual or any individual occupying a named position; and(C) the written authorization is submitted to the executive director.(2) If an authorization under this section is no longer accurate because of a change in individuals or position, a new authorization satisfying the requirements of this section must be submitted to the executive director prior to, or together with, any reports, information, or applications to be signed by an authorized representative.(3) Any person signing a report shall make the certification in §305.44(b) of this title.(d) For permitted municipal solid waste composting and landfill mining facilities, the operator shall maintain records on-site, available for inspection by the executive director for a period consisting of the two most recent calendar years, except as noted in paragraphs (1) - (3) of this subsection. The records must consist of the following:(1) a log of abnormal events at the facility, including, but not limited to, hazardous constituents uncovered, fires, explosions, process disruptions, extended equipment failures, injuries, and weather damage;(2) results of final product testing required by §330.613 of this title (relating to Sampling and Analysis Requirements for Final Soil Product) or §332.71 of this title (relating to Sampling and Analysis Requirements for Final Product); and(3) copies of the annual report for the five most recent calendar years.(e) All information contained in the operating record shall be furnished upon request to the executive director and shall be made available at all reasonable times for inspection by the executive director.(f) The owner or operator shall retain all information contained within the operating record and the different plans required for the facility for the life of the facility.(g) The executive director may set alternative schedules for recordkeeping and notification requirements as specified in subsections (a) - (e) of this section.</content><note type="source"><p>Source Note: The provisions of this §330.219 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective May 26, 2016, 41 TexReg 3735.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.221"><num value="330.221">§330.221</num><heading>Fire Protection</heading><content>(a) An adequate supply of water under pressure must be available for firefighting purposes.(b) Firefighting equipment must be readily available.(c) A fire protection plan shall be established, and all employees shall be trained in its contents and use. This fire protection plan shall describe the source of fire protection (a local fire department, fire hydrants, fire extinguishers, water tanks, water well, etc.), procedures for using the fire protection source, and employee training and safety procedures. The fire protection plan shall comply with local fire codes.</content><note type="source"><p>Source Note: The provisions of this §330.221 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.223"><num value="330.223">§330.223</num><heading>Access Control</heading><content>(a) Public access to all municipal solid waste facilities shall be controlled by means of artificial barriers, natural barriers, or a combination of both, appropriate to protect human health and safety and the environment. Uncontrolled access to other operations located at a municipal solid waste facility shall be prevented.(b) The facility access road from a publicly owned roadway must be at least a two-lane gravel or paved road, designed for the expected traffic flow. Safe on-site access for commercial collection vehicles and for residents must be provided. The access road design must include adequate turning radii according to the vehicles that will utilize the facility and avoid disruption of normal traffic patterns. Vehicle parking must be provided for equipment, employees, and visitors. Safety bumpers at hoppers must be provided for vehicles. A positive means to control dust and mud must be provided.(c) Access to the facility must be controlled by a perimeter fence, consisting of a four-foot barbed wire fence or a six-foot chain-link fence or equivalent, and have lockable gates. An attendant shall be on-site during operating hours. The operating area and transport unit storage area shall be enclosed by walls or fencing.</content><note type="source"><p>Source Note: The provisions of this §330.223 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.225"><num value="330.225">§330.225</num><heading>Unloading of Waste</heading><content>(a) The unloading of solid waste shall be confined to as small an area as practical. An attendant shall be provided at all facilities to monitor all incoming loads of waste. Appropriate signs shall also be used to indicate where vehicles are to unload. The use of forced access lanes, identified by ditches, dikes, fences, or other means, shall be used in conjunction with signs for the prevention of indiscriminate dumping. The owner or operator is not required to accept any solid waste that he/she determines will cause or may cause problems in maintaining full and continuous compliance with these sections.(b) The unloading of waste in unauthorized areas is prohibited. The owner or operator shall ensure that any waste deposited in an unauthorized area will be removed immediately and disposed of properly.(c) The unloading of prohibited wastes at the municipal solid waste facility shall not be allowed. The owner or operator shall ensure that any prohibited waste will be returned immediately to the transporter or generator of the waste.</content><note type="source"><p>Source Note: The provisions of this §330.225 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.227"><num value="330.227">§330.227</num><heading>Spill Prevention and Control</heading><content>Storage and processing areas shall be designed to control and contain spills and contaminated water from leaving the facility. The design shall be sufficient to control and contain a worst case spill or release. Unenclosed containment areas shall also account for precipitation from a 25-year, 24-hour storm.</content><note type="source"><p>Source Note: The provisions of this §330.227 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.229"><num value="330.229">§330.229</num><heading>Operating Hours</heading><content>(a) A site operating plan must specify the operating hours. The waste acceptance hours may be any time between the hours of 7:00 a.m. and 7:00 p.m., Monday through Friday, unless otherwise approved by the executive director or commission for a permit. The operating hours for operating heavy equipment and transporting materials on- or off-site may be any time between the hours of 5:00 a.m. and 9:00 p.m., Monday through Friday, unless otherwise approved in the authorization. Other activities do not require specific approval. For facilities that do not require a permit or registration, the owner or operator will notify adjacent landowners by first-class mail concurrently with filing the request for expanded waste acceptance or operating hours with the commission's regional office 30 days prior to the proposed implementation of the expanded hours. The notice will contain instructions for adjacent landowners to contact the commission's regional office in writing of any concerns regarding the requested expanded waste acceptance or operating hours. The owner or operator may not begin operating during the expanded hours unless written approval is received by the regional office.(b) In addition to the requirements of subsection (a) of this section, the authorization may include alternative operating hours of up to five days in a calendar-year period to accommodate special occasions, special purpose events, holidays, or other special occurrences.(c) The commission's regional offices may allow additional temporary operating hours to address disaster or other emergency situations, or other unforeseen circumstances that could result in the disruption of waste management services in the area.(d) The facility must record, in the site operating record, the dates, times, and duration when any alternative operating hours are utilized.</content><note type="source"><p>Source Note: The provisions of this §330.229 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.231"><num value="330.231">§330.231</num><heading>Facility Sign</heading><content>Each facility shall conspicuously display at all entrances to the facility through which wastes are received, a sign measuring at least four feet by four feet with letters at least three inches in height stating the facility name; type of facility; the hours and days of operation; the permit number or facility number, if applicable; and facility rules. The posting of erroneous or misleading information shall constitute a violation of this section.</content><note type="source"><p>Source Note: The provisions of this §330.231 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.233"><num value="330.233">§330.233</num><heading>Control of Windblown Material and Litter</heading><content>(a) Windblown material and litter shall be collected as necessary, at least once per day on days that the facility is in operation, to minimize unhealthy, unsafe, or unsightly conditions.(1) A portable fence may be employed to confine windblown material resulting from unloading. If a portable fence is not practical, other suitable practices shall be employed to control windblown material.(2) Litter scattered throughout the facility, along fences and access roads, and at the gate must be picked up once a day on the days the facility is in operation and properly managed.(b) If a facility is not completely enclosed, the owner or operator shall provide a wire or other type fencing or screening when necessary to minimize windblown materials.</content><note type="source"><p>Source Note: The provisions of this §330.233 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.235"><num value="330.235">§330.235</num><heading>Materials Along the Route to the Facility</heading><content>The facility owner or operator shall take steps to encourage that vehicles hauling waste to the facility are enclosed or provided with a tarpaulin, net, or other means to effectively secure the load in order to prevent the escape of any part of the load by blowing or spilling. The owner or operator shall take actions such as posting signs, reporting offenders to proper law enforcement officers, adding surcharges, or similar measures. On days when the facility is in operation, the owner or operator shall be responsible for at least once per day cleanup of waste materials spilled along and within the right-of-way of public access roads serving the facility for a distance of two miles in either direction from any entrances used for the delivery of waste to the facility. The facility operator shall consult with the Texas Department of Transportation, county, and/or local governments with maintenance authority over the roads concerning cleanup of public access roads and rights-of-way. An alternative clean-up frequency and distance may be approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §330.235 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.237"><num value="330.237">§330.237</num><heading>Facility Access Roads</heading><content>(a) All-weather roads shall be provided within the facility to the unloading area(s) designated for wet-weather operation. The tracking of mud and debris onto public roadways from the facility shall be minimized.(b) Dust from on-site and other access roadways shall not become a nuisance to surrounding areas. A water source and necessary equipment or other means of dust control shall be provided.(c) All on-site and other access roadways shall be maintained on a regular basis. Access roadways shall be regraded as necessary to minimize depressions, ruts, and potholes.</content><note type="source"><p>Source Note: The provisions of this §330.237 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.239"><num value="330.239">§330.239</num><heading>Noise Pollution and Visual Screening</heading><content>The owner or operator of a transfer station shall provide screening or other measures to minimize noise pollution and adverse visual impacts.</content><note type="source"><p>Source Note: The provisions of this §330.239 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.241"><num value="330.241">§330.241</num><heading>Overloading and Breakdown</heading><content>(a) The design capacity of a solid waste processing or experimental facility shall not be exceeded during operation. The facility shall not accumulate solid waste in quantities that cannot be processed within such time as will preclude the creation of odors, insect breeding, or harborage of other vectors. If such accumulations occur, additional solid waste shall not be received until the adverse conditions are abated.(1) For facilities that process grease trap waste, grit trap waste, or septage, and demonstration projects for liquid waste processing facilities, the maximum time allowed for storage of unprocessed waste is 72 hours.(2) For mobile liquid waste processing facilities, the maximum time allowed for storage of unprocessed waste is four days.(b) If a significant work stoppage should occur at a solid waste processing or experimental facility due to a mechanical breakdown or other causes, the facility shall accordingly restrict the receiving of solid waste. Under such circumstances, incoming solid waste shall be diverted to an approved backup processing or disposal facility. If the work stoppage is anticipated to last long enough to create objectionable odors, insect breeding, or harborage of vectors, steps shall be taken to remove the accumulated solid waste from the facility to an approved backup processing or disposal facility.(c) The owner or operator shall have alternative processing or disposal procedures for the solid waste in the event that the facility becomes inoperable for periods longer than 24 hours.</content><note type="source"><p>Source Note: The provisions of this §330.241 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.243"><num value="330.243">§330.243</num><heading>Sanitation</heading><content>(a) At processing facilities, all working surfaces that come in contact with wastes shall be washed down on a weekly basis at the completion of processing. Processing facilities that operate on a continuous basis shall be swept daily and washed down at least two times per week.(b) Wash waters shall not be allowed to accumulate on site without proper treatment to prevent the creation of odors or an attraction to vectors.(c) All wash waters shall be collected and disposed of in an authorized manner.</content><note type="source"><p>Source Note: The provisions of this §330.243 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.245"><num value="330.245">§330.245</num><heading>Ventilation and Air Pollution Control</heading><content>(a) Air emissions from municipal solid waste facilities must not cause or contribute to a condition of air pollution as defined in the Texas Clean Air Act.(b) All facilities and constructed air pollution abatement devices must obtain authorization, under Chapter 116 of this title (relating to Control of Air Pollution By Permits for New Construction or Modifications) or Subchapter U of this chapter (relating to Standard Air Permits for Municipal Solid Waste Landfill Facilities and Transfer Stations), as applicable, from the Air Permits Division prior to the start of construction, except as authorized in Texas Health and Safety Code, §382.004, Construction While Permit Application Pending.(c) All liquid waste and solid waste shall be stored in odor-retaining containers and vessels.(d) The facility shall be designed and operated to provide adequate ventilation for odor control and employee safety. The owner or operator shall prevent nuisance odors from leaving the boundary of the facility. If nuisance odors are found to be passing the facility boundary, the facility owner or operator may be required to suspend operations until the nuisance is abated.(e) All air pollution emission capture and abatement equipment or equivalent technology shall be properly maintained and operated during the facility operation. Cleaning and maintenance of the abatement equipment shall be performed as recommended by the manufacturer and as necessary so that the equipment efficiency can be adequately maintained.(f) The owner or operator shall employ one or more of the following measures:(1) air scrubber units for odor control;(2) on-site buffer zones for odor control. Consideration should be given to additional buffer zones within the facility property boundary for odor control;(3) additional waste handling procedures, storage procedures, and clean-up procedures for odor control when accepting putrescible waste; or(4) alternative ventilation and odor control measures.(g) Process areas that recover material from solid waste that contains putrescibles shall be maintained totally within an enclosed building. Openings to the process area shall be controlled to prevent releases of nuisance odors from leaving the property boundary of the facility.(h) The facility shall be designed to allow a minimal time of exposure of liquid waste to the air. Openings to processing buildings shall be controlled to prevent release of nuisance odors to the atmosphere. The facility design must minimize waste contact with air during unloading of liquid waste into the facility.(i) Cleaning and maintenance of mobile waste processing unit equipment shall be performed each day of operation to reduce odors.(j) Reporting of emissions events shall be made in accordance with §101.201 of this title (relating to Emissions Event Reporting and Recordkeeping Requirements) and reporting of scheduled maintenance shall be made in accordance with §101.211 of this title (relating to Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements).(k) Any ponded water at the facility shall be controlled to avoid its becoming a nuisance. In the event that objectionable odors do occur, appropriate measures shall be taken to alleviate the condition.</content><note type="source"><p>Source Note: The provisions of this §330.245 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.247"><num value="330.247">§330.247</num><heading>Health and Safety</heading><content>Facility personnel will be trained in the appropriate sections of the facility's health and safety plan.</content><note type="source"><p>Source Note: The provisions of this §330.247 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scE/s330.249"><num value="330.249">§330.249</num><heading>Employee Sanitation Facilities</heading><content>The owner or operator shall provide potable water and sanitary facilities for all employees and visitors.</content><note type="source"><p>Source Note: The provisions of this §330.249 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scG"><num value="G">SUBCHAPTER G</num><heading>SURFACE WATER DRAINAGE</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scG/s330.301"><num value="330.301">§330.301</num><heading>Applicability</heading><content>Permits and registrations for units that existed before the comprehensive rule revisions in this chapter as adopted in 2006 (2006 Revisions) to this subchapter became effective remain valid, except as provided by this subchapter. If existing authorizations do not comply with the 2006 Revisions, the permittee or registrant is under an obligation to apply for a modification not subject to public notice in accordance with §305.70(l) of this title (relating to Municipal Solid Waste Permit and Registration Modifications) within 180 days to comply with the 2006 Revisions to this subchapter. Timely submission of an application to modify qualifies the owners or operators of existing units to operate under requirements contained in the existing authorization until a final decision is made on the application.</content><note type="source"><p>Source Note: The provisions of this §330.301 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scG/s330.303"><num value="330.303">§330.303</num><heading>Surface Water Drainage for Municipal Solid Waste Facilities</heading><content>(a) A facility must be constructed, maintained, and operated to manage run-on and runoff during the peak discharge of a 25-year rainfall event and must prevent the off-site discharge of waste and feedstock material, including, but not limited to, in-process and/or processed materials.(b) Surface water drainage in and around a facility shall be controlled to minimize surface water running onto, into, and off the treatment area.</content><note type="source"><p>Source Note: The provisions of this §330.303 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scG/s330.305"><num value="330.305">§330.305</num><heading>Additional Surface Water Drainage Requirements for Landfills</heading><content>(a) Existing or permitted drainage patterns must not be adversely altered.(b) The owner or operator shall design, construct, and maintain a run-on control system capable of preventing flow onto the active portion of the landfill during the peak discharge from at least a 25-year rainfall event.(c) The owner or operator shall design, construct, and maintain a runoff management system from the active portion of the landfill to collect and control at least the water volume resulting from a 24-hour, 25-year storm.(d) The landfill design must provide effective erosional stability to top dome surfaces and external embankment side slopes during all phases of landfill operation, closure, and post-closure care in accordance with the following.(1) Estimated peak velocities for top surfaces and external embankment slopes should be less than the permissible non-erodible velocities under similar conditions.(2) The top surfaces and external embankment slopes of municipal solid waste landfill units must be designed to minimize erosion and soil loss through the use of appropriate side slopes, vegetation, and other structural and nonstructural controls, as necessary. Soil erosion loss (tons/acre) for the top surfaces and external embankment slopes may be calculated using the Soil Conservation Service of the United States Department of Agriculture's Universal Soil Loss Equation, in which case the potential soil loss should not exceed the permissible soil loss for comparable soil-slope lengths and soil-cover conditions.(e) Dikes, embankments, drainage structures, or diversion channels sized and graded to handle the design runoff must be provided. The slopes of the sides and toe will be graded in such a manner as to minimize the potential for erosion. The surface water protection and erosion control practices must maintain low non-erodible velocities, minimize soil erosion losses below permissible levels, and provide long-term, low maintenance geotechnical stability to the final cover.(1) The owner or operator shall maintain the collection, drainage, and/or storage units as designed, and shall restore and repair the drainage system in the event of washout or failure; and(2) The owner or operator shall control erosion and sedimentation, including having interim controls for phased development.(f) The owner or operator shall assess the existing and proposed drainage characteristics of the facility using the following methods.(1) Calculations for areas of 200 acres or less must follow the rational method and utilize appropriate surface runoff coefficients, as specified in the Texas Department of Transportation (TxDOT) Bridge Division Hydraulic Design Manual. Time of runoff concentration as defined within the manual generally will not be less than ten minutes for rainfall intensity determination purposes. The owner or operator may use equivalent or better methods approved by the executive director.(2) Calculations for discharges from areas greater than 200 acres must be computed by using United States Geological Survey/Department of Transportation Federal Highway Administration hydraulic equations compiled by the United States Geological Survey and the TxDOT (TxDOT Administrative Circular 36-86); the Hydrologic Engineering Center-Hydrologic Modeling System, Hydraulic Engineering Center-River Modeling System, or legacy computer programs developed through the Hydrologic Engineering Center of the United States Army Corps of Engineers; or equivalent or better methods approved by the executive director.(g) The owner or operator shall handle, store, treat, and dispose of surface or groundwater that has become contaminated by contact with the working face of the landfill or with leachate in accordance with §330.207 of this title (relating to Contaminated Water Management). Storage areas for this contaminated water must be designed with regard to size, locations, and methods.</content><note type="source"><p>Source Note: The provisions of this §330.305 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scG/s330.307"><num value="330.307">§330.307</num><heading>Flood Protection for Landfills</heading><content>(a) The facility shall be protected from flooding by suitable levees constructed to provide protection from a 100-year frequency flood and in accordance with the rules of the commission relating to levee improvement districts and approval of plans for reclamation projects or the rules of the county or city having jurisdiction under Texas Water Code, §16.236, as implemented by Chapter 301, Subchapter C of this title (relating to Approval of Levees and Other Improvements).(b) Flood protection levees must be designed and constructed to prevent the washout of solid waste from the facility.(1) A freeboard of at least three feet must be provided except in those cases where a greater freeboard is required by the agency having jurisdiction under Texas Water Code, §16.236.(2) Such levees must not significantly restrict the flow of a 100-year frequency flood nor significantly reduce the temporary water storage capacity of the 100-year floodplain.</content><note type="source"><p>Source Note: The provisions of this §330.307 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scH"><num value="H">SUBCHAPTER H</num><heading>LINER SYSTEM DESIGN AND OPERATION</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scH/s330.331"><num value="330.331">§330.331</num><heading>Design Criteria</heading><content>(a) New permits for Type I landfill units, lateral expansions, vertical expansions of Type I landfills over landfills that do not meet the design criteria under paragraph (1) or (2) of this subsection and expansions of existing Type IAE landfills that subsequently no longer satisfy the conditions specified in §330.5(b)(1) of this title (relating to Classification of Municipal Solid Waste Facilities) must be constructed in accordance with one of the following provisions approved by the executive director: (1) a design that ensures that the concentration values listed in Table 1 of this paragraph will not be exceeded in the uppermost aquifer at the point of compliance, as determined in §330.403 of this title (relating to Groundwater Monitoring Systems); or Attached Graphic(2) a composite liner, as defined in subsection (b) of this section, and a leachate collection system that is designed and constructed to maintain less than a 30-centimeter depth of leachate over the liner. (b) For purposes of this section, "composite liner" means a system consisting of two components; the upper component must consist of a minimum 30-mil geomembrane liner and the lower component must consist of at least a two-foot layer of re-compacted soil with a hydraulic conductivity of no more than 1 x 10-7 centimeters per second (cm/sec). Geomembrane liner components consisting of high density polyethylene (HDPE) must be at least 60-mil thick. The geomembrane liner component must be installed in direct and uniform contact with the compacted soil component. (c) When approving a design that complies with subsection (a)(1) of this section, the executive director may consider, but is not limited to, the following factors: (1) the hydrogeologic characteristics of the facility and surrounding land; (2) the climatic factors of the area; (3) the volume and physical and chemical characteristics of the leachate; (4) the quantity, quality, and direction of flow of groundwater; (5) the proximity and withdrawal rate of the groundwater users; (6) the availability of alternative drinking water supplies; (7) the existing quality of the groundwater, including other sources of contamination and their cumulative impacts on the groundwater and whether groundwater is currently used or reasonably expected to be used for drinking water; (8) public health, safety, and welfare effects; and (9) practicable capability of the owner or operator. (d) Type IV landfills must meet one of the following groundwater protection requirements: (1) there must exist at least four feet of in-situ soil between the deposited waste and groundwater. This in-situ soil must constitute an in-situ liner and must meet all the physical properties for a constructed liner as detailed in §330.339(c)(5) of this title (relating to Liner Quality Control Plan). In-situ liners must not exhibit primary or secondary physical features such as jointing, fractures, bedding planes, solution cavities, root holes, desiccation shrinkage cracks etc., that have a coefficient of permeability greater than 1 x 10-7 cm/sec; (2) there must be at least a three-foot thick re-compacted clay liner between the deposited waste and groundwater. The constructed liner must meet all the criteria detailed in §330.339 of this title and must at a minimum have one foot of protective cover overlying the re-compacted liner after all quality control testing and final thickness determinations are complete; or (3) an alternative liner design, in accordance with §330.335 of this title (relating to Alternative Liner Design). (e) Municipal solid waste landfill facilities that accept Class 1 industrial solid wastes, other than asbestos-containing material, must have dedicated cells that meet the following requirements. (1) The cells designated for Class 1 industrial solid wastes must have a composite liner system consisting of two components. The upper component must consist of a minimum of a 30-mil geomembrane liner and the lower component must consist of at least a three-foot layer of re-compacted soil with a hydraulic conductivity of no more than 1 x 10 -7 cm/sec. Geomembrane liner components consisting of HDPE must be at least 60-mil thick. The geomembrane liner component must be installed in direct and uniform contact with the compacted soil component. The liner system installed for Class 1 industrial solid waste cells is subject to the requirements of §330.339 of this title. These cells must be designated on facility layout maps. (2) The cells designated for Class 1 industrial solid wastes must have a leachate-collection system designed and constructed to maintain less than a 30-cm depth of leachate over the liner. The leachate-collection and leachate-removal system must be: (A) constructed of materials that are chemically resistant to the leachate expected to be generated; (B) of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying wastes, waste cover materials, and by any equipment used at the landfill; and (C) designed and operated to function through the scheduled closure and post-closure period of the landfill. (3) Unless the executive director approves an engineered design that the applicant has demonstrated will provide equal or greater protection to human health and the environment, a new landfill cell or an areal expansion of an existing landfill cell must be located in areas allowed by §335.584(b)(1) and (2) of this title (relating to Location Restrictions).</content><note type="source"><p>Source Note: The provisions of this §330.331 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scH/s330.333"><num value="330.333">§330.333</num><heading>Leachate Collection System</heading><content>Leachate-collection and associated leachate-removal systems shall be:(1) constructed of materials that are chemically resistant to the leachate expected to be generated;(2) of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying wastes, waste cover materials, and by any equipment used at the landfill; and(3) designed and operated to function through the scheduled closure and post-closure care period of the landfill considering the following factors:(A) estimated rate of leachate removal;(B) capacity of sumps;(C) pipe material and strength, if used;(D) pipe network spacing and grading, if used;(E) collection sump materials and strength;(F) drainage media specifications and performance; and(G) demonstration that pipes and perforations will be resistant to clogging and can be cleaned.</content><note type="source"><p>Source Note: The provisions of this §330.333 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scH/s330.335"><num value="330.335">§330.335</num><heading>Alternative Liner Design</heading><content>Alternative liner designs, which for Type I landfills must include a leachate management system, may be authorized by the executive director if the owner or operator provides a demonstration by computerized design modeling that the maximum contaminant levels detailed in §330.331 of this title (relating to Design Criteria), Table 1 will not be exceeded at the point of compliance. At the discretion of the executive director, a field demonstration may be required to prove the practicality and performance capabilities of an alternative liner design.</content><note type="source"><p>Source Note: The provisions of this §330.335 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scH/s330.337"><num value="330.337">§330.337</num><heading>Special Liner Design Constraints</heading><content>(a) At the discretion of the executive director, owners or operators of Type IV landfill excavations that extend below the seasonal high water table may be required to meet one or more provisions in this section.(b) The owner or operator of a Type I landfill shall demonstrate that the liner system will not undergo uplift from hydrostatic forces during its construction by using one or more of the following methods:(1) providing calculations satisfactory to the executive director that the weight of the liner systems, including any ballast, is sufficient to offset by a factor of 1.2 any otherwise unbalanced upward or inward hydrostatic forces on the liner;(2) incorporating an active or passive dewatering system in the design to reduce upward or inward hydrostatic forces on the liner by a factor of 1.2 and by providing calculations satisfactory to the executive director that the dewatering system will perform to adequately reduce those forces;(3) providing evidence satisfactory to the executive director that the soil surrounding the landfill is so poorly permeable that groundwater cannot move sufficiently to exert force that would damage the liner; or(4) providing evidence that the seasonal high water table is below the deepest planned excavation.(c) The owner or operator shall ensure that the liner is stable during the filling and operation of the landfill through a suitable combination of dewatering and/or ballast, if determined to be required in subsection (b) of this section. These methods shall not be used without prior approval of the executive director.(d) Any required leachate collection system shall be designed to handle both the leachate generated and the groundwater inflow from materials beneath and lateral to the liner system. The maximum volume of groundwater inflow shall be calculated based on determination of the permeability and potentiometric conditions of the liner system and of the materials surrounding the liner system.(e) Prior to excavating any unit below the seasonal high water table, the owner or operator shall perform a preliminary foundation evaluation satisfactory to the executive director. The foundation evaluation shall consider stability, settlement, and constructability.(f) The liner quality control plan as required in §330.339 of this title (relating to Liner Quality Control Plan) shall include the following information for landfills to which subsection (b) of this section is applicable:(1) the methods and tests to be used to verify that the liner will not undergo uplift during construction and until ballast placement, if required, is complete; and(2) the measures and tests that will be used to verify that any required ballast meets the criteria established, including, but not limited to, inspections, compaction, weight and density of material, thickness, and top elevations.(g) Any dewatering systems used to ensure liner stability during construction and filling shall be operated until the executive director determines that such systems are no longer required.(h) The executive director may determine on a site-specific basis that waste can be used as ballast. If so, the facility operating plan for the landfill shall contain the following requirements.(1) The first five feet or the total thickness of the ballast, whichever is less, placed on the liner system shall be free of brush and large bulky items, which would damage the underlying parts of the liner system or which cannot be compacted to the required density.(2) If waste is used for ballast, a wheeled compactor having a minimum weight of 40,000 pounds, or equivalent equipment, shall be properly utilized to reach a compaction density of at least 1,200 pounds per cubic yard. For purposes of determining the required ballast thickness, a density of compacted waste of 1,200 pounds per cubic yard shall be used. The weight of the liner system, including any ballast, must be sufficient to offset any unbalanced upward or inward hydrostatic forces on the liner by a factor of 1.5 when waste is used for ballast.(3) The liner quality control plan shall also include the method(s) to be used to verify that compaction of waste used for ballast is to a density of not less than 1,200 pounds per cubic yard. If a compactor having a minimum weight of 40,000 pounds is used, no compaction density verification will be required.(4) If waste is used for ballast, the ballast evaluation report shall also include verification that a compactor having a minimum weight of 40,000 pounds was used or, if not, that compaction was at least 1,200 pounds per cubic yard.(i) The seasonal high water table shall be adjusted upward, if necessary, as additional data become available after a permit is issued.(j) If ballasting or dewatering is used, the owner or operator shall submit a ballast evaluation report in a format specified by the executive director in duplicate to the executive director when the owner or operator determines that ballasting or dewatering is no longer necessary. If the executive director provides no response within 14 days of the date of receipt, the owner or operator may discontinue dewatering or ballasting operations. The ballast evaluation report shall include:(1) verification that the liner did not undergo uplift during construction, using the method identified in the liner quality control plan;(2) certification that ballast met the criteria established in this section and in the liner quality control plan; and(3) signature and seal of an independent licensed professional engineer performing the evaluation and signature of the facility operator or his authorized representative.</content><note type="source"><p>Source Note: The provisions of this §330.337 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scH/s330.339"><num value="330.339">§330.339</num><heading>Liner Quality Control Plan</heading><content>(a) A landfill must have an approved liner quality control plan prepared under the direction of a licensed professional engineer, and it shall be the basis for the type and rate of quality control testing performance and reported in the soil liner evaluation report as required in §330.341 of this title (relating to Soil Liner Evaluation Report and Geomembrane Liner Evaluation Report). The plan must be included in the site development plan to provide operating personnel adequate procedural guidance for assuring continuous compliance with groundwater protection requirements. The plan must specify construction methods employing good engineering practices for compaction of clay soils to form a liner. Unless alternative construction procedures are approved in writing by the executive director, all constructed liners shall be keyed into an underlying formation of sufficient strength to ensure stability of the constructed lining. The plan shall address the installation and testing of a geomembrane liner, if used. Proposed dewatering plans shall be included. The plan shall include the following information: (1) constructed liner details, where applicable, shall be depicted on cross-sections of a typical cell showing the slope, widths, and thicknesses for compaction lifts. The amount of compaction shall be expressed as a percentage of a predetermined laboratory density; and (2) soil and liner quality-control testing procedures, to include sampling frequency, shall be included in the plan. All field sampling and testing, both during construction and after completion, shall be performed by a person acting in compliance with the provisions of the Texas Engineering Practice Act and other applicable state laws and regulations. The professional of record who signs the soil liner evaluation report or his representative should be on site during all liner construction. Quality control of construction and quality assurance of sampling and testing procedures should follow the latest technical guidelines of the executive director. (b) The liner quality control plan shall also: (1) provide guidance needed for testing and reporting evaluation procedures to the professional who will prepare the soil liner evaluation reports for the facility; (2) specify materials, equipment, and construction methods for the compaction of clay soils to form impermeable liners for the conditions to include the following information: (A) details for the overexcavation and recompaction of the in-situ soils, or the compaction of soils from a borrow source, shall be depicted on cross-sections of a typical cell showing the slope, widths, and thicknesses for compaction lifts; and (B) procedures to be followed when excavations, cells, or disposal areas extend into or have the potential to extend into the groundwater shall be in accordance with the provisions provided in §330.337 of this title (relating to Special Liner Design Constraints); and (3) describe installation methods and quality control testing and reporting following placement for any geomembrane liner that may be required or authorized by the executive director. (c) Soil liner quality control testing frequencies and procedures shall be in accordance with the executive director's most recent guidelines and the following. (1) All field sampling and testing, both during construction and after completion of the lining, shall be performed by a qualified professional experienced in geotechnical engineering and/or engineering geology, or under his direct supervision. (2) All liners should have continuous on-site inspection during construction by the professional of record or his designated representative. (3) The amount of compaction of clay liners shall be expressed as a percentage of a maximum dry density based on a compaction test specified by a licensed professional engineer. The compaction of the clay liner shall have been proven by soils laboratory testing to provide a coefficient of permeability of 1 x 10-7 centimeters per second (cm/sec) or less. (4) The liner quality control plan shall define the frequency of testing for each of the test procedures listed in subparagraphs (A) - (F) of this paragraph. These frequencies shall be expressed in numbers of tests per specific area of liner per lift or specific thickness of liner, unless an alternative frequency is approved by the executive director. In addition, unless otherwise approved by the executive director, all soil tests performed on any in-situ or constructed soil liners shall be in accordance with the standards in subparagraphs (A) - (E) of this paragraph: (A) laboratory permeability tests. Permeability tests shall be run using tap water or .05 Normal (N) solution of calcium sulfate (CaSO4 ) and not distilled water. All test data must be submitted on permeability tests regardless of test method used. At a minimum, the calculations of the last data set reported for each sample and the resultant coefficient of permeability shall be reported as supporting data. Tests shall be either constant head with back pressure (Appendix VII of Corps of Engineers Manual, EM 1110-2-1906; American Society of Testing and Materials (ASTM) D5084, "Measurement of Hydraulic Conductivity of Saturated Porous Materials Using a Flexible Wall Permeameter,") or falling head (Appendix VII of Corps of Engineers Manual, EM1110-2-1906); (B) sieve analysis +1, 200, -200 sieves; (ASTM D422 or ASTM D1140, as applicable); (C) Atterberg limits (ASTM D4318); (D) moisture-density relationships (ASTM D698 or any executive director approved modified test whose compactive effort matches the on site-construction equipment); (E) moisture content (ASTM D2216); and (F) thickness verification. (5) All soils used as constructed liners must have the following minimum values verified by testing in a soils laboratory: (A) plasticity index--equal to or greater than 15; (B) liquid limit--equal to or greater than 30; (C) percent passing 200 mesh sieve (-200) equal to or greater than 30%; (D) percent passing one-inch screen--100%; and (E) coefficient of permeability less than or equal to 1 x 10-7 cm/sec. (6) Permeability tests for proving the suitability of soils to be used in constructing clay liners shall be performed in the laboratory using the procedures and guidance of paragraph (4)(A) of this subsection. Field quality control must be provided by field density tests based on predetermined moisture-density compaction curves, Atterberg limits, and laboratory permeabilities of undisturbed field samples of compacted liner soils, unless an alternative plan is approved by the executive director. (7) Field permeability testing of in-situ soils or constructed soil liners shall be in accordance with ASTM D5093 for those soil liners that are in the floor of the excavation and a variation of the Boutwell STEI field permeability test approved by the executive director for the sidewalls, or in accordance with guidance furnished by the executive director. (8) All quality control testing of soil liners shall be performed during the construction of the liner. In no instance shall any quality control field or laboratory testing be undertaken after completion of liner construction, except for that testing which is required of the final constructed lift, confirmation of liner thickness, or cover material thickness. (9) All soil testing and evaluation of either in-situ soil or constructed soil liners shall be complete prior to installing the leachate collection system or, if no leachate collection system is required, prior to adding the one foot of protective cover on the area under evaluation. (d) Soil and liner density shall be expressed as a percentage of the maximum dry density and at the corresponding optimum moisture content specified as appropriate by a licensed professional engineer experienced in geotechnical engineering. These soils so compacted must upon testing either in the laboratory or as a test pad in the field demonstrate a coefficient of permeability no greater than 1 x 10-7 cm/sec. (e) Unless alternative construction procedures have prior written approval by the executive director, all constructed soil liners shall be keyed into an underlying formation of sufficient strength to ensure stability of the constructed lining. (f) Each soil liner evaluation report shall be prepared in accordance with the approved liner quality control plan. Any deviation from the approved plan must have prior written approval from the executive director. (g) Soil liners shall not be compacted with a bulldozer or any track-mobilized equipment unless it is used to pull a pad-footed roller. All soil liners shall be compacted with a pad-footed or prong-footed roller only. The maximum clod size of the compacted liner soils shall be approximately one inch in diameter. In all cases soil clods shall be reduced to the smallest size necessary to achieve the coefficient of permeability reported by the testing laboratory and to destroy any macrostructure evidenced after the compaction of the clods under density-controlled conditions. (h) The liner soil material shall contain no rocks or stones larger than one inch in diameter or that total more than 10% by weight. Rock content shall not be a detriment to the integrity of the overlying geomembrane.</content><note type="source"><p>Source Note: The provisions of this §330.339 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scH/s330.341"><num value="330.341">§330.341</num><heading>Soil Liner Evaluation Report and Geomembrane Liner Evaluation Report</heading><content>(a) Prior to the disposal of solid waste in any cell, or on any area, excavation, or unprotected surface, a soil liner evaluation report and a geomembrane liner evaluation report shall be submitted to the executive director. If the approved design does not require a synthetic liner, a geomembrane liner evaluation report is not required.(b) Each soil liner evaluation report and geomembrane liner evaluation report shall be submitted in triplicate (including all attachments) to the executive director and shall be prepared in accordance with the methods and procedures contained in the approved liner quality control plan. If the executive director provides no response, either written or verbal, within 14 days of receipt, the owner or operator may continue facility construction or operation.(c) If the executive director determines that a report is incomplete or that the test data provided are insufficient to support the evaluation conclusions, additional test data or other information may be required, and use of the cell or disposal area will not be allowed until such additional data are received, reviewed, and accepted. Each report must be signed and, where applicable, sealed by the individual performing the evaluation and counter-signed by the facility operator or an authorized representative.(d) The surface of a constructed soil liner should be covered or otherwise protected within a period of six months to mitigate the effects of dessication, surface erosion, and rutting due to traffic. Liner surfaces not covered within six months shall be checked by the soil liner evaluation report evaluator, who shall then submit a letter report on the findings to the executive director. Any required repairs shall be performed promptly. A new report shall be submitted on the new construction for all liners that need repair due to damage.</content><note type="source"><p>Source Note: The provisions of this §330.341 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scI"><num value="I">SUBCHAPTER I</num><heading>LANDFILL GAS MANAGEMENT</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scI/s330.371"><num value="330.371">§330.371</num><heading>Landfill Gas Management</heading><content>(a) Owners or operators of all landfill units shall ensure that:(1) the concentration of methane gas generated by the facility does not exceed 1.25% by volume in facility structures (excluding gas control or recovery system components); and(2) the concentration of methane gas does not exceed 5% by volume in monitoring points, probes, subsurface soils, or other matrices at the facility boundary defined by the legal description in the permit or permit by rule.(b) Owners or operators of all landfill units shall implement a routine methane monitoring program to ensure that the standards of subsection (a) of this section are met.(1) The type and frequency of monitoring shall be determined based on the following factors:(A) soil conditions;(B) the hydrogeologic conditions surrounding the facility;(C) the hydraulic conditions surrounding the facility;(D) the location of facility structures and property boundaries; and(E) the location of any utility lines or pipelines that cross the MSW landfill facility.(2) The minimum frequency of monitoring shall be quarterly.(c) If methane gas levels exceeding the limits specified in subsection (a) of this section are detected, the owner or operator shall:(1) immediately take all necessary steps to ensure protection of human health and notify the executive director, local and county officials, emergency officials, and the public;(2) within seven days of detection, place in the operating record the concentration of methane gas levels detected and a description of the steps taken to protect human health; and(3) within 60 days of detection, implement a remediation plan for the methane gas releases, place a copy of the plan in the operating record, provide a copy to the executive director, and notify the executive director that the plan has been implemented. The plan shall describe the nature and extent of the problem and the proposed remedy. After review, the executive director may require additional remedial measures.(d) The executive director may establish alternative schedules for demonstrating compliance with subsections (b) and (c) of this section.(e) The owner or operator shall continue the gas monitoring and control program for a period of 30 years after certification of final closure of the facility for Type I and Type IAE landfill units and five years after certification of final closure for Type IV and Type IVAE landfill units or until the owner or operator receives written authorization to reduce the program. Authorization to reduce gas monitoring and control shall be based on a demonstration by the owner or operator that there is no potential for gas migration beyond the property boundary or into on-site structures. Demonstration of this proposal shall be supported by data collected and additional studies as required.(f) Gas monitoring and control systems shall be revised as needed to maintain current and effective gas monitoring and control systems. Post-closure land use at the site shall not interfere with the function of gas monitoring and control systems. Any underground utility trenches that cross the landfill facility boundary shall be vented and monitored regularly.(g) A landfill gas management plan shall be prepared that includes the following:(1) a description of how landfill gases will be managed and controlled;(2) a description of the proposed system(s), including installation procedures and time lines for installation, monitoring procedures, and procedures to be used during maintenance; and(3) a backup plan to be used if the main system breaks down or becomes ineffective.(h) The owner or operator shall install a perimeter monitoring network in accordance with the following provisions:(1) initial monitoring at Type IAE and Type IVAE landfills and larger landfills that have no habitable structures within 3,000 feet of the waste placement boundary may consist of subsurface monitoring around the perimeter of the facility using portable equipment and probes. If test results show the presence of methane gas above a concentration of 0.5% by volume, a permanent monitoring system shall be installed; and(2) permanent monitoring systems shall be installed on all other landfills.(i) The monitoring network design shall include provisions for monitoring on-site structures, including, but not limited to, buildings, subsurface vaults, utilities, or any other areas where potential gas buildup would be of concern.(j) All monitoring probes and on-site structures shall be sampled for methane during the monitoring period. Sampling for specified trace gases may be required by the executive director when there is a possibility of acute or chronic exposure due to carcinogenic or toxic compounds.(k) Monitoring frequency shall be determined as follows.(1) As a minimum, quarterly monitoring is required. The executive director may require more frequent monitoring based upon the factors listed in this section. When more frequent monitoring is necessary, the executive director shall notify the owner or operator.(2) The owner or operator shall monitor more frequently those locations where monitoring results indicate that landfill gas migration is occurring or is accumulating in structures.(l) The comprehensive rule revisions in this chapter as adopted in 2006 (2006 Revisions) to this subchapter supersede any conflicting provisions contained in any existing permits upon the effective date of the 2006 Revisions.</content><note type="source"><p>Source Note: The provisions of this §330.371 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scJ"><num value="J">SUBCHAPTER J</num><heading>GROUNDWATER MONITORING AND CORRECTIVE ACTION</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scJ/s330.401"><num value="330.401">§330.401</num><heading>Applicability</heading><content>(a) Facilities that have closed in accordance with §§330.453, 330.455, or 330.457 of this title (relating to Closure Requirements for Municipal Solid Waste Landfill Units that Stopped Receiving Waste Prior to October 9, 1991, Type IV Landfills, and Municipal Solid Waste Sites; Closure Requirements for Municipal Solid Waste Landfill Units that Received Waste on or after October 9, 1991, but Stopped Receiving Waste Prior to October 9, 1993; or Closure Requirements for Municipal Solid Waste Landfill Units that Receive Waste on or after October 9, 1993) prior to the effective date of the comprehensive rule revisions in this chapter as adopted in 2006 (2006 Revisions) may continue to monitor groundwater using the well location requirements contained in previously issued authorizations, as allowed by §330.1(a)(1) of this title (relating to Purpose and Applicability).(b) Owners and operators of landfill units shall comply with the 2006 Revisions to this subchapter by applying for a permit modification with public notice in accordance with §305.70(l) of this title (relating to Municipal Solid Waste Permit and Registration Modifications) to revise any inconsistent permit provisions within two years from the effective date of the 2006 Revisions. If an approved groundwater sampling and analysis plan allows for filtering groundwater samples, owners or operators may continue to sample and analyze groundwater in accordance with their approved groundwater sampling and analysis plan while also collecting and analyzing unfiltered groundwater samples to reestablish background groundwater constituent concentrations. The requirements in this subchapter apply to all municipal solid waste landfill units, except for Type IAE and Type IVAE landfills as provided in §330.5(b) of this title (relating to Classification of Municipal Solid Waste Facilities) and except as provided in §330.417 of this title (relating to Groundwater Monitoring at Type IV Landfills). Additionally, the executive director may establish groundwater monitoring requirements for solid waste management units other than Type I or Type IV landfills where site-specific conditions and operations have the potential for groundwater contamination.(c) Composting operations that require a permit are subject to the groundwater monitoring requirements of §332.47(6)(C)(ii) of this title (relating to Permit Application Preparation).(d) Groundwater monitoring requirements under §330.403 of this title (relating to Groundwater Monitoring Systems), §330.405 of this title (relating to Groundwater Sampling and Analysis Requirements), §330.407 of this title (relating to Detection Monitoring Program for Type I Landfills), and §330.409 of this title (relating to Assessment Monitoring Program) may be suspended by the executive director for a solid waste management unit if the owner or operator can demonstrate that there is no potential for migration of hazardous constituents from that solid waste management unit to the uppermost aquifer as defined in §330.3 of this title (relating to Definitions) during the active life and the closure and post-closure care period of the unit. This demonstration shall be certified by a qualified groundwater scientist and approved by the executive director, and must be based upon:(1) site-specific field-collected measurements, sampling, and analysis of physical, chemical, and biological processes affecting contaminant fate and transport; and(2) contaminant fate and transport predictions that maximize contaminant migration and consider impacts on human health and the environment.(e) Owners or operators of new solid waste management units must submit to the executive director a documented certification signed by a qualified groundwater scientist that the facility is in compliance with the groundwater monitoring requirements specified in §§330.403, 330.405, 330.407, and 330.409 of this title before waste can be placed in the unit.(f) Once established at a solid waste management unit, groundwater monitoring must be conducted throughout the active life and any required post-closure care period of that solid waste management unit as specified in §330.463 of this title (relating to Post-Closure Care Requirements).</content><note type="source"><p>Source Note: The provisions of this §330.401 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scJ/s330.403"><num value="330.403">§330.403</num><heading>Groundwater Monitoring Systems</heading><content>(a) A groundwater monitoring system must be installed that consists of a sufficient number of monitoring wells, installed at appropriate locations and depths, to yield representative groundwater samples from the uppermost aquifer as defined in §330.3 of this title (relating to Definitions).(1) Background monitoring wells shall be installed to allow determination of the quality of background groundwater that has not been affected by leakage from a unit. Background monitoring wells may be placed in locations that are not hydraulically upgradient of the waste management area if hydrogeologic conditions do not allow the owner or operator to determine which wells are hydraulically upgradient or if sampling at other wells will provide a better indication of background groundwater quality than is possible from upgradient wells.(2) The point of compliance monitoring system must include monitoring wells installed to allow determination of the quality of groundwater passing the point of compliance as defined in §330.3 of this title and to ensure the detection of groundwater contamination in the uppermost aquifer. Monitoring well spacing for a municipal solid waste landfill unit shall not exceed 600 feet without an applicable site-specific technical demonstration that may be supplemented with a multi-dimensional fate and transport numerical flow model as set forth in subsection (e) of this section. The owner or operator of a municipal solid waste landfill unit must install a groundwater monitoring system at the point of compliance, as required by 40 Code of Federal Regulations §258.51(a)(2). When physical obstacles preclude installation of the groundwater monitoring wells at existing units, the wells may be installed at the closest practicable distance to the point of compliance as defined in §330.3 of this title that will ensure detection of groundwater contamination of the uppermost aquifer.(b) The executive director may approve a multi-unit groundwater monitoring system instead of separate groundwater monitoring systems for each municipal solid waste management unit when the facility has several units, provided the multi-unit system meets the requirement of subsection (a) of this section and will be as protective of human health and the environment as individual monitoring systems for each unit, based on the following factors:(1) number, spacing, and orientation of the solid waste management units within an overall waste management area;(2) hydrogeologic setting;(3) site history;(4) engineering design of the units; and(5) type of waste accepted at the units.(c) The executive director may approve an alternative design for a groundwater monitoring system that uses other means in conjunction with monitoring wells to ensure detection of groundwater contamination in the uppermost aquifer from a solid waste management unit. The alternative design shall be at least as protective of human health and the environment as a monitoring-well system as specified in §330.403(a) of this title (relating to Groundwater Monitoring Systems).(d) All parts of a groundwater monitoring system shall be operated and maintained so that they perform at least to design specifications through the life of the groundwater monitoring program.(e) A groundwater monitoring system, including the number, spacing, and depths of monitoring wells or other sampling points, shall be designed and certified by a qualified groundwater scientist. Within 14 days of the certification, the owner or operator shall submit the certification to the executive director and place a copy of the certification in the operating record. The plan for the monitoring system and all supporting data must be submitted to the executive director for review and approval prior to construction.(1) The design of a monitoring system shall be based on site-specific technical information that must include a thorough characterization of: aquifer thickness; groundwater flow rate; groundwater flow direction, including seasonal and temporal fluctuations in flow; effect of site construction and operations on groundwater flow direction and rates; and thickness, stratigraphy, lithology, and hydraulic characteristics of saturated and unsaturated geologic units and fill materials overlying the uppermost aquifer, materials of the uppermost aquifer, and materials of the lower confining unit of the uppermost aquifer. A geologic unit is any distinct or definable native rock or soil stratum.(2) The owner or operator may use an applicable multi-dimensional fate and transport numerical flow model to supplement the determination of the spacing of monitoring wells or other sampling points and shall consider site-specific characteristics of groundwater flow as well as dispersion and diffusion of possible contaminants in the materials of the uppermost aquifer. Any model used shall:(A) have supporting documentation that establishes its ability to represent groundwater flow and contaminant transport, as needed;(B) have a sound set of equations based on accepted theory representing groundwater movement and contaminant transport;(C) have numerical solution methods that are based on sound mathematical principles and supported by verification and checking techniques;(D) be calibrated against site-specific field data;(E) have a sensitivity analysis to measure its response to changes in the values of major parameters, error tolerances, and other parameters;(F) show mass-balance calculations, where necessary; and(G) be based on actual field or laboratory measurements, or equivalent methods, that document the validity of chosen parameter values.(3) The owner or operator shall promptly notify the executive director, and any local pollution agency with jurisdiction that has requested to be notified, in writing of changes in facility construction or operation or changes in adjacent property that affect or are likely to affect the direction and rate of groundwater flow and the potential for detecting groundwater contamination from a solid waste management unit and that may require the installation of additional monitoring wells or sampling points. Such additional wells or sampling points require a modification of the site development plan.</content><note type="source"><p>Source Note: The provisions of this §330.403 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scJ/s330.405"><num value="330.405">§330.405</num><heading>Groundwater Sampling and Analysis Requirements</heading><content>(a) The groundwater monitoring program shall include consistent sampling and analysis procedures that are designed to ensure monitoring results that provide an accurate representation of groundwater quality at the background and point of compliance wells, or other monitoring system, installed in compliance with §330.403(a) - (c) of this title (relating to Groundwater Monitoring Systems).(b) The owner or operator shall submit a groundwater sampling and analysis plan to the executive director for review and approval prior to commencement of sampling and shall maintain a current copy in the operating record. The groundwater sampling and analysis plan shall:(1) include procedures and techniques for sample collection, sample preservation and shipment, analytical procedures, chain of custody controls, and quality assurance and quality control;(2) provide for measurement of groundwater elevations at each sampling point prior to bailing or purging; measurement at an event shall be accomplished over a period of time short enough to avoid temporal variations in water levels; sampling at each event shall proceed from the point with the highest water-level elevation to those with successively lower elevations unless contamination is known to be present, in which case wells not likely to be contaminated shall be sampled prior to those that are known to be contaminated unless an alternative procedure is approved by the executive director; and(3) include sampling and analytical methods that are appropriate for groundwater sampling and that accurately measure hazardous constituents and other monitoring parameters in groundwater samples.(A) For Type I landfills, the owner or operator shall collect an appropriate number of samples necessary to establish groundwater quality data consistent with the appropriate statistical procedures determined in accordance with subsection (f) of this section. The sampling procedures for Type I landfills shall be those specified under §330.407(a) of this title (relating to Detection Monitoring Program for Type I Landfills) for detection monitoring, §330.409(b) - (f) of this title (relating to Assessment Monitoring Program) for assessment monitoring, and §330.411(b) of this title (relating to Assessment of Corrective Measures) for corrective action.(B) For Type IV landfills, the owner or operator shall sample the groundwater monitoring parameters at the frequency specified in §330.417 of this title (relating to Groundwater Monitoring at Type IV Landfills).(C) For other solid waste management units that will have a groundwater monitoring program in accordance with §330.401(a), of this title (relating to Applicability) the executive director will specify groundwater monitoring parameters and frequencies appropriate to the facility conditions.(c) Groundwater samples shall not be field-filtered prior to laboratory analysis.(d) The owner or operator shall establish background groundwater quality that has not been affected by leakage from a solid waste management unit in hydraulically upgradient wells or in background wells for each of the monitoring parameters or constituents required in the groundwater monitoring program for a solid waste management unit, as determined under §330.419 of this title (relating to Constituents for Detection Monitoring). A determination of background quality may include sampling of wells that are not hydraulically upgradient of the waste management area if hydrogeologic conditions do not allow the owner or operator to determine which wells are hydraulically upgradient or if sampling at other wells will provide a better indication of background groundwater quality than is possible from upgradient wells. Point of compliance groundwater data shall not be adjusted by subtracting background groundwater data.(e) The owner or operator shall specify in the groundwater sampling and analysis plan one or more of the following statistical methods to be used in evaluating groundwater monitoring data for each parameter or constituent analyzed as required under §330.407 of this title and §330.409 of this title. The statistical test(s) chosen shall be conducted separately for each tested constituent in each well or sampling point:(1) a parametric analysis of variance followed by multiple-comparisons procedures to identify statistically significant evidence of contamination. The method shall include estimation and testing of the contrasts between each point of compliance well's mean and the background mean levels for each constituent;(2) an analysis of variance based on ranks followed by multiple-comparisons procedures to identify statistically significant evidence of contamination. The method shall include estimation and testing of the contrasts between each point of compliance well's median and the background median levels for each constituent;(3) a tolerance or prediction interval procedure in which an interval for each constituent is established from the distribution of the background data and the level of each constituent in each point of compliance well is compared to the upper tolerance or prediction limit;(4) a control-chart approach that gives control limits for each constituent; and(5) another statistical test method that meets the performance standards of subsection (f) of this section. The owner or operator shall submit to the executive director satisfactory justification for this alternative test.(f) Any statistical method chosen under subsection (e) of this section shall comply with the following performance standards, as appropriate.(1) The statistical method used to evaluate groundwater monitoring data shall be appropriate for the distribution of tested constituents. If the distribution of a tested constituent is shown by the owner or operator to be inappropriate for a normal theory test, then the data should be transformed or a distribution-free theory test should be used. If the distributions for the constituents differ, more than one statistical method may be needed.(2) If an individual well (or sampling point) comparison procedure is used to compare an individual compliance well constituent concentration with background constituent concentrations or a groundwater protection standard, the test shall be done at a Type I error level no less than 0.01 for each testing period. If a multiple-comparisons procedure is used, each testing period shall be no less than 0.05, but the Type I error of no less than 0.01 for individual well comparisons shall be maintained. This performance standard does not apply to tolerance intervals, prediction interval, or control charts.(3) If a control-chart approach is used to evaluate groundwater monitoring data, the specific type of control chart and its associated parameter values shall be protective of human health and the environment. These parameters shall be determined after considering the number of samples in the background database, the data distribution, and the range of the concentration values for each constituent of concern.(4) If a tolerance interval or a prediction interval is used to evaluate groundwater monitoring data, the levels of confidence, and for tolerance intervals the percentage of the population that the interval must contain, shall be protective of human health and the environment. These parameters shall be determined after considering the number of samples in the background data base, the data distribution, and the range of the concentration values for each constituent of concern.(5) The statistical method shall account for data below the limit of detection with one or more statistical procedures that are protective of human health and the environment. Any practical quantitation limit that is used in the statistical method shall be the lowest concentration level that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions that are available to the facility.(6) If necessary, the statistical method shall include procedures to control or correct for seasonal and spatial variability as well as temporal correlation in the data.</content><note type="source"><p>Source Note: The provisions of this §330.405 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scJ/s330.407"><num value="330.407">§330.407</num><heading>Detection Monitoring Program for Type I Landfills</heading><content>(a) The monitoring frequency for all constituents listed in §330.419 of this title (relating to Constituents for Detection Monitoring) shall be at least semiannual during the active life of the facility and the closure and post-closure care period.(1) A minimum of four statistically independent samples from each background and each point of compliance well shall be collected and analyzed for the constituents listed in §330.419 of this title to establish background groundwater quality. Initial background sampling for a well shall be completed on a quarterly basis, unless an alternative schedule is approved by the executive director. Background data sets may be updated once every two years with semiannual detection monitoring results that are demonstrated to be representative of background groundwater quality. Upon completion of background monitoring and during background updates, the owner or operator shall evaluate the background data to ensure that the data are representative of background groundwater constituent concentrations unaffected by waste management activities or other sources of contamination. The evaluation shall be documented in a report and submitted to the executive director before the next subsequent groundwater monitoring event following the updated background period. At least one sample from each background and point of compliance well shall be collected and analyzed during each subsequent semiannual sampling event.(2) The executive director may specify an appropriate alternative frequency for repeated sampling and analysis of the constituents listed in §330.419 of this title during the active life and the closure and post-closure care period. The alternative frequency shall be no less than annual and shall be based on factors such as lithology and hydraulic conductivity of the aquifer and unsaturated zone, groundwater flow rates, minimum distance of travel from waste to monitoring wells, and resource value of the uppermost aquifer.(3) For the purpose of establishing background groundwater quality, the executive director may agree to consider analytical data acquired prior to the effective date of this chapter in addition to the data required in this subsection and in §330.409(b) of this title (relating to Assessment Monitoring Program).(b) Not later than 60 days after each sampling event, the owner or operator shall determine whether there has been a statistically significant increase over background of any tested constituent at any monitoring well. If there has been a statistically significant increase, the owner or operator shall notify the executive director, and any local pollution agency with jurisdiction that has requested to be notified, in writing within 14 days of this determination.(1) If a statistically significant increase over background of any tested constituent at any monitoring well has occurred, the owner or operator shall immediately place a notice in the operating record describing the increase and shall establish an assessment monitoring program meeting the requirements of §330.409 of this title within 90 days of the date of the notice to the executive director required under this subsection, except as provided for in paragraphs (2) and (3) of this subsection.(2) If a statistically significant increase over background of any tested constituent at any monitoring well has occurred, the owner or operator may submit the results of resampling as appropriate for the statistical method being used within 60 days of determining the statistically significant increase. The resample data may be used to statistically confirm or disprove the determination made in this subsection.(3) If a statistically significant increase over background of any tested constituent at any monitoring well has occurred and the owner or operator has reasonable cause to think that a source other than a landfill unit caused the contamination or that the statistically significant increase resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality, then the owner or operator may submit a report providing documentation to this effect. In making a demonstration under this paragraph, the owner or operator must:(A) notify the executive director, and any local pollution agency with jurisdiction that has requested to be notified, in writing within 14 days of determining a statistically significant increase over background at the compliance point that the owner or operator intends to make a demonstration under this paragraph;(B) within 90 days of determining a statistically significant increase, submit a report to the executive director, and any local pollution agency with jurisdiction that has requested to be notified, that demonstrates that a source other than a monitored landfill unit caused the contamination or that the statistically significant increase resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality. The report must be prepared and certified by a qualified groundwater scientist;(C) not filter the groundwater sample for constituents addressed by the demonstration prior to laboratory analysis. The executive director may also require the owner or operator to provide analyses of the landfill leachate to support the demonstration; and(D) continue to monitor in accordance with the detection monitoring program established under this section.(4) If the owner or operator does not make a demonstration satisfactory to the executive director within 90 days after the date of the notice to the executive director required under this subsection, the owner or operator shall initiate an assessment monitoring program as required in paragraph (1) of this subsection. The executive director may require the owner or operator to install additional wells at the point of compliance to further characterize the release.(c) The owner or operator shall submit an annual detection monitoring report within 90 days after the facility's last groundwater monitoring event in a calendar year that must include the following information determined since the previously submitted annual report:(1) a statement regarding whether a statistically significant increase has occurred over background values in any well during the previous calendar year period and the status of any statistically significant increase events;(2) the results of all groundwater monitoring, testing, and analytical work obtained or prepared under the requirements of this permit, including a summary of background groundwater quality values, groundwater monitoring analyses, statistical calculations, graphs, and drawings;(3) the groundwater flow rate and direction in the uppermost aquifer. The groundwater flow rate and direction of groundwater flow shall be established using the data collected during the preceding calendar year's sampling events from the monitoring wells of the detection monitoring program. The owner or operator shall also include in the report all documentation used to determine the groundwater flow rate and direction of groundwater flow;(4) a contour map of piezometric water levels in the uppermost aquifer based at a minimum upon concurrent measurement in all monitoring wells. All data or documentation used to establish the contour map should be included in the report;(5) recommendation for any changes; and(6) any other items requested by the executive director.(d) If the owner or operator determines that the detection monitoring program no longer satisfies the requirements of this section, the owner or operator must, within 90 days of this determination, submit an application for a permit amendment or modification to make any appropriate changes to the program.</content><note type="source"><p>Source Note: The provisions of this §330.407 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scJ/s330.409"><num value="330.409">§330.409</num><heading>Assessment Monitoring Program</heading><content>(a) Assessment monitoring is required whenever the owner or operator determines there has been a statistically significant increase over background for one or more of the constituents listed in §330.419 of this title (relating to Constituents for Detection Monitoring). (b) Within 90 days of determining that a statistically significant increase has occurred in accordance with §330.407(b) of this title (relating to Detection Monitoring Program for Type I Landfills), and not less than annually thereafter, the owner or operator shall sample and analyze the groundwater monitoring system for the full set of constituents listed in Appendix II to 40 Code of Federal Regulations (CFR) Part 258, effective July 14, 2005, is adopted by reference. A minimum of one sample shall be collected from each point of compliance well and analyzed for the 40 CFR Part 258, Appendix II constituents during each sampling event. For any new constituent(s) detected in the point of compliance wells as a result of the complete Appendix II analysis, a minimum of four statistically independent samples from each background well shall be collected and analyzed to establish background levels for the additional constituent(s). After sampling all point of compliance wells for Appendix II constituents, the executive director may specify an appropriate subset of wells to be sampled and analyzed for the Appendix II constituents during assessment monitoring and may delete any of the Appendix II constituents for a municipal solid waste management unit if the owner or operator can document that the removed constituents are not reasonably expected to be in or derived from the waste contained in the unit. (c) The executive director may specify an appropriate alternative frequency for repeated sampling and analysis for the full set of 40 CFR Part 258, Appendix II constituents required by subsection (b) of this section during the active life and the closure and post-closure care period of the unit considering the following factors: (1) lithology and hydraulic conductivity of the aquifer and unsaturated zone; (2) groundwater flow rates; (3) minimum distance of travel from the waste nearest to any point of compliance monitoring well; (4) resource value of the uppermost aquifer; and (5) nature (fate and transport) of any constituents detected in response to this section. (d) Not later than 60 days after each sampling event, the owner or operator shall submit to the executive director the results from the initial and subsequent sampling events required in subsection (b) of this section and also place them in the operating record. The owner or operator shall also: (1) within 90 days of submittal of the results from a sampling event and on at least a semiannual basis thereafter, resample all wells specified by §330.403(a) of this title (relating to Groundwater Monitoring Systems) and conduct analyses for all constituents in §330.419 of this title and for those additional constituents in 40 CFR Part 258, Appendix II that are detected in response to subsection (b) of this section. The results must be submitted to the executive director not later than 60 days after the sampling event and shall also be placed in the operating record. At least one sample must be collected and analyzed from each background and point of compliance well at each sampling event. The executive director may specify an alternative monitoring frequency during the active life and the closure and post-closure care period for the constituents referred to in this paragraph. The alternative frequency during the active life and the closure and post-closure care period shall be not less than annual. The alternative frequency shall be based on consideration of the factors described in subsection (c) of this section; (2) establish background concentrations for any additional Appendix II constituents detected in accordance with subsection (b) of this section or paragraph (1) of this subsection; and (3) establish groundwater protection standards for all constituents in point of compliance wells detected in accordance with subsection (b) of this section or paragraph (1) of this subsection. The groundwater protection standards shall be established in accordance with subsection (h) or (i) of this section. (e) If the concentrations of all 40 CFR Part 258, Appendix II constituents are shown to be at or below background values, using the statistical procedures in §330.405(f) of this title (relating to Groundwater Sampling and Analysis Requirements) for two consecutive sampling events, the owner or operator must notify the executive director in writing and return to detection monitoring if approved. (f) If the concentrations of any 40 CFR Part 258, Appendix II constituents are above background values, but all concentrations are below the groundwater protection standard established under subsection (h) or (i) of this section, using the statistical procedures in §330.405(f) of this title, the owner or operator shall continue assessment monitoring in accordance with this section. (g) Not later than 60 days after each sampling event, the owner or operator shall determine whether any 40 CFR Part 258, Appendix II constituents were detected at statistically significant levels above the groundwater protection standard established under subsection (h) or (i) of this section in any sampling event. If the groundwater protection standard has been exceeded, the owner or operator shall notify the executive director and appropriate local government officials in writing within seven days of this determination. (1) The owner or operator shall also: (A) characterize the nature and extent of the release by installing additional monitoring wells as necessary; (B) install at least one additional monitoring well between the monitoring well with the statistically significant level and the next adjacent wells along the point of compliance before the next sampling event and sample these wells in accordance with subsection (d)(1) of this section; (C) notify in writing all persons that own or occupy the land that directly overlies any part of the plume of contamination if contaminants have migrated off-site as indicated by sampling of wells in accordance with subsection (d)(1) of this section; and (D) initiate an assessment of corrective measures as required by §330.411 of this title (relating to Assessment of Corrective Measures) all within 90 days of the notice to the executive director. (2) The owner or operator may demonstrate that a source other than the monitored solid waste management unit caused the contamination or that the statistically significant level resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality. In making a demonstration under this paragraph, the owner or operator must: (A) notify the executive director in writing within 14 days of determining a statistically significant level above the groundwater protection standard at the point of compliance that the owner or operator intends to make a demonstration under this paragraph; (B) within 90 days of determining a statistically significant level above the groundwater protection standard, submit a report to the executive director that demonstrates that a source other than the monitored solid waste management unit caused the contamination or that the statistically significant level resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality. The report shall be prepared and certified by a qualified groundwater scientist; (C) not filter the groundwater samples for constituents addressed by the demonstration prior to laboratory analysis. The executive director may also require the owner or operator to provide analysis of landfill leachate to support the demonstration; and (D) continue to monitor in accordance with the assessment monitoring program established under this section. (3) If a successful demonstration is made, the owner or operator shall continue monitoring in accordance with the assessment monitoring program required by this section and may return to detection monitoring if the 40 CFR Part 258, Appendix II constituents are at or below background as specified in subsection (e) of this section. Until a successful demonstration is made, the owner or operator shall comply with paragraph (1) of this subsection, including initiating an assessment of corrective measures. (4) If the owner or operator determines that the assessment monitoring program no longer satisfies the requirements of this section, the owner or operator must, within 90 days, submit an application for a permit amendment or modification to make any appropriate changes to the program. (h) The owner or operator shall establish a groundwater protection standard for each 40 CFR Part 258, Appendix II constituent detected in the point of compliance monitoring wells. The groundwater protection standard must be: (1) for constituents for which a maximum contaminant level (MCL) has been promulgated under 40 CFR Part 141, Safe Drinking Water Act (codified), §1412, the MCL for that constituent; (2) for constituents for which MCLs have not been promulgated, the background concentration for the constituent established from wells in accordance with §330.405(d) of this title; or (3) for constituents for which the background level is higher than the MCL identified under paragraph (1) of this subsection or health-based levels identified under subsection (i) of this section, the background concentration. (i) The executive director may establish an alternative groundwater protection standard for 40 CFR Part 258, Appendix II constituents for which MCLs have not been established. These groundwater protection standards shall be appropriate health-based levels that satisfy either the criteria of paragraphs (1) - (4) of this subsection, inclusive or comply with paragraph (5) of this subsection: (1) the level is derived in a manner consistent with United States Environmental Protection Agency guidelines for assessing the health risks of environmental pollutants (51 FR 33992, 34006, 34014, 34028, September 24, 1986); (2) the level is based on scientifically valid studies conducted in accordance with the Toxic Substances Control Act Good Laboratory Practice Standards (40 CFR Part 792) or equivalent; (3) for carcinogens, the level represents a concentration associated with an excess lifetime cancer risk level (due to continuous lifetime exposure) with the 1 x 10-4 to 1 x 10 -6 range; and (4) for systemic toxicants, the level represents a concentration to which the human population (including sensitive subgroups) could be exposed to on a daily basis that is likely to be without appreciable risk of deleterious effects during a lifetime. For purposes of this subchapter, systemic toxicants include toxic chemicals that cause effects other than cancer or mutation; or (5) the level is developed in accordance with Chapter 350 of this title (relating to Texas Risk Reduction Program). (j) In establishing groundwater protection standards under subsection (i) of this section, the executive director may consider multiple contaminants in the groundwater, exposure threats to sensitive environmental receptors, and other site-specific exposure or potential exposure to groundwater. (k) The owner or operator shall submit an annual assessment monitoring report within 60 days after the facility's second semiannual groundwater monitoring event that includes the following information determined since the previously submitted report: (1) a statement whether an statistically significant level above a groundwater protection standard established in subsection (h) or (i) of this section has occurred in any well during the previous calendar year period and the status of any statistically significant level events; (2) the results of all groundwater monitoring, testing, and analytical work obtained or prepared in accordance with the requirements of this chapter, including a summary of background groundwater quality values, groundwater monitoring analyses, statistical calculations, graphs, and drawings; (3) the groundwater flow rate and direction in the uppermost aquifer. The groundwater flow rate and direction of groundwater flow shall be established using the data collected during the preceding calendar year's sampling events from the monitoring wells of the Assessment Monitoring Program. The owner or operator shall also include in the report all documentation used to determine the groundwater flow rate and direction of groundwater flow; (4) a contour map of piezometric water levels in the uppermost aquifer based, at a minimum, upon concurrent measurement in all monitoring wells. All data or documentation used to establish the contour map should be included in the report; (5) recommendation for any changes; and (6) any other items requested by the executive director.</content><note type="source"><p>Source Note: The provisions of this §330.409 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scJ/s330.411"><num value="330.411">§330.411</num><heading>Assessment of Corrective Measures</heading><content>(a) Within 90 days of finding that any of the 40 Code of Federal Regulations Part 258, Appendix II constituents have been detected at a statistically significant level above the groundwater protection standards defined under §330.409(h), (i), or (j) of this title (relating to Assessment Monitoring Program), the owner or operator shall initiate an assessment of corrective measures. Such an assessment shall be completed within 180 days of initiating the assessment.(b) The owner or operator shall continue to monitor in accordance with the assessment monitoring program as specified in §330.409 of this title.(c) The assessment shall include an analysis of the effectiveness of potential corrective measures in meeting all of the requirements and objectives of the remedy as described under §330.413 of this title (relating to Selection of Remedy), addressing at least the following:(1) performance, reliability, ease of implementation, and potential impacts of appropriate potential remedies, including safety impacts, cross-media impacts, and control of exposure to any residual contamination;(2) time required to begin and complete the remedy;(3) costs of remedy implementation; and(4) institutional requirements such as state or local permit requirements or other environmental or public health requirements that may substantially affect implementation of the remedy or remedies.(d) The owner or operator shall discuss the results of the corrective measures assessment, prior to the selection of a remedy, in a public meeting with interested and affected parties. The owner or operator shall arrange for the meeting and provide notice in accordance with the provisions of §39.501(e)(5) of this title (relating to Application for Municipal Solid Waste Permit).</content><note type="source"><p>Source Note: The provisions of this §330.411 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective May 14, 2020, 45 TexReg 3119.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scJ/s330.413"><num value="330.413">§330.413</num><heading>Selection of Remedy</heading><content>(a) Based on the results of the corrective measures assessment conducted under §330.411 of this title (relating to Assessment of Corrective Measures), the owner or operator shall select a remedy that, at a minimum, meets the standards listed in subsection (b) of this section and is in accordance with rules of the commission. Within 30 days of completing the assessment of corrective measures described in §330.411 of this title, the owner or operator shall submit a report to the executive director for review and approval and place it in the operating record. The report shall describe the remedy or remedies proposed for selection and the way it or they meet the standards in subsection (b) of this section.(b) Remedies shall:(1) be protective of human health and the environment;(2) attain the groundwater protection standard as specified in accordance with §330.409(h), (i), or (j) of this title (relating to Assessment Monitoring Program);(3) control the source(s) of releases so as to reduce or eliminate, to the maximum extent practicable, further releases of 40 Code of Federal Regulations Part 258, Appendix II constituents into the environment that may pose a threat to human health or the environment; and(4) comply with standards for management of wastes as specified in §330.415(d) of this title (relating to Implementation of the Corrective Action Program).(c) In selecting a remedy that meets the standards of subsection (b) of this section, the owner or operator shall consider the following evaluation factors:(1) long- and short-term effectiveness and protectiveness of the potential remedy, along with the degree of certainty that the remedy will prove successful based on consideration of:(A) magnitude of reduction of existing risks;(B) magnitude of residual risks in terms of likelihood of further releases due to waste remaining following implementation of a remedy;(C) type and degree of long-term management required, including monitoring, operation, and maintenance;(D) short-term risks that might be posed to the community, workers, or the environment during implementation of such a remedy, including potential threats to human health and the environment associated with excavation, transportation, redisposal, or containment;(E) time until full protection is achieved;(F) potential for exposure of humans and environmental receptors to remaining wastes, considering potential threats to human health and the environment associated with excavation, transportation, redisposal, or containment;(G) long-term reliability of the engineering and institutional controls; and(H) potential need for replacement of the remedy;(2) effectiveness of the remedy in controlling the source to reduce further releases based on the extent to which containment practices will reduce further releases and the extent to which treatment technologies may be used;(3) ease or difficulty of implementing a potential remedy based on consideration of:(A) degree of difficulty associated with constructing the technology;(B) expected operational reliability of the technologies;(C) need to coordinate with and obtain necessary approvals and permits from other agencies and regulatory bodies;(D) availability of necessary equipment and specialists; and(E) available capacity and location of needed treatment, storage, and disposal services;(4) practicable capability of the owner or operator, including a consideration of the technical and economic capability; and(5) degree to which community concerns are addressed by a potential remedy.(d) The owner or operator shall specify as part of the selected remedy a schedule for initiating and completing remedial activities. The schedule shall require the initiation of remedial activities within a reasonable time approved by the executive director, taking into consideration the following factors:(1) extent and nature of contamination;(2) practical capabilities of remedial technologies in achieving compliance with groundwater protection standards established under §330.409(h), (i), or (j) of this title and other objectives of the remedy;(3) availability of treatment or disposal capacity for wastes managed during implementation of the remedy;(4) desirability of utilizing technologies that are not currently available but that may offer significant advantages over available technologies in terms of effectiveness, reliability, safety, or ability to achieve remedial objectives;(5) potential risks to human health and the environment from exposure to contamination prior to completion of the remedy;(6) resource value of the aquifer, including current and future uses; proximity and withdrawal rate of users; groundwater quantity and quality; potential damage to wildlife, crops, vegetation, and physical structures from exposure to waste constituents; hydrogeologic characteristics of the facility and adjacent land; groundwater removal and treatment costs; and cost and availability of alternative water supplies;(7) practicable capability of the owner or operator; and(8) other relevant factors.(e) The executive director may determine that remediation of a release of a 40 Code of Federal Regulations Part 258, Appendix II constituent from a solid waste management unit is not necessary if the owner or operator demonstrates to the satisfaction of the executive director that:(1) the groundwater is additionally contaminated by substances that have originated from a source other than a solid waste management unit and those substances are present in concentrations such that cleanup of the release from the solid waste management unit would provide no significant reduction in risk to actual or potential receptors; or(2) the constituent is present in groundwater that is not currently or reasonably expected to be a source of drinking water and is not hydraulically connected with waters to which the constituent is migrating or is likely to migrate in a concentration that would exceed the groundwater protection standards established under §330.409(h), (i), or (j) of this title; or(3) remediation of the release is technically impracticable; or(4) remediation of the release results in unacceptable cross-media impacts.(f) A determination by the executive director in accordance with subsection (e) of this section shall not affect the authority of the state to require the owner or operator to undertake source-control measures or other measures that may be necessary to eliminate or minimize further releases to the groundwater, to prevent exposure to the groundwater, or to remediate the groundwater to concentrations that are technically practicable and that significantly reduce threats to human health or the environment.</content><note type="source"><p>Source Note: The provisions of this §330.413 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scJ/s330.415"><num value="330.415">§330.415</num><heading>Implementation of the Corrective Action Program</heading><content>(a) Based on the schedule established under §330.413(d) of this title (relating to Selection of Remedy) for initiation and completion of remedial activities, the owner or operator shall:(1) establish and implement a corrective action groundwater monitoring program that:(A) at least meets the requirements of an assessment monitoring program under §330.409 of this title (relating to Assessment Monitoring Program);(B) indicates the effectiveness of the corrective action remedy; and(C) demonstrates compliance with groundwater protection standards under subsection (f) of this section;(2) implement the corrective action remedy selected under §330.413 of this title; and(3) take any interim measures necessary to ensure the protection of human health and the environment. Interim measures should, to the greatest extent practicable, be consistent with the objectives of and contribute to the performance of any remedy that may be required under §330.413 of this title. The following factors shall be considered by an owner or operator in determining if interim measures are necessary:(A) time required to develop and implement a final remedy;(B) actual or potential exposure of nearby populations or environmental receptors to hazardous constituents;(C) actual or potential contamination of drinking water supplies or sensitive ecosystems;(D) further degradation of the groundwater that may occur if remedial action is not initiated expeditiously;(E) weather conditions that may cause hazardous constituents to migrate or be released;(F) risks of fire or explosion, or potential for exposure to hazardous constituents as a result of an accident or failure of a container or handling system; and(G) other situations that may pose threats to human health and the environment.(b) An owner or operator may determine, based on information developed after implementation of the remedy has begun or other information, that compliance with requirements of §330.413(b) of this title are not being achieved through the remedy selected. In such cases, the owner or operator shall, with approval of the executive director, implement other methods or techniques that could practicably achieve compliance with the requirements unless the owner or operator makes the determination under subsection (c) of this section and if it is approved by the executive director. Failure to obtain approval from the executive director for the other methods and techniques does not relieve the owner or operator of the burden to implement an acceptable remedy.(c) If the owner or operator determines that compliance with requirements under §330.413(b) of this title cannot be practically achieved with any currently available methods, the owner or operator shall:(1) present to the executive director certification by a qualified groundwater scientist that compliance with requirements under §330.413(b) of this title cannot be practically achieved with any currently available methods;(2) implement alternative measures, with the approval of the executive director, to control exposure of humans or the environment to residual contamination, as necessary to protect human health and the environment;(3) implement alternative measures, with the approval of the executive director, for control of the sources of contamination, or for removal or decontamination of equipment, units, devices, or structures that are technically practicable and consistent with the overall objective of the remedy; and(4) place a copy of all approved alternative measures in the operating record.(d) All solid wastes that are managed in accordance with a remedy required under §330.413 of this title, or an interim measure required under subsection (a)(3) of this section, shall be managed in a manner that is protective of human health and the environment and that complies with applicable Resource Conservation and Recovery Act requirements.(e) Upon implementation of a corrective action program, the owner or operator shall submit an annual corrective action report by March 1st every year that includes the following information determined since the previously submitted report:(1) a statement regarding whether a statistically significant level above a groundwater protection standard established in §330.409(h), (i), or (j) of this title in any well during the previous calendar year period has occurred and the status of any statistically significant level events;(2) the results of all groundwater monitoring, testing, and analytical work obtained or prepared in accordance with the requirements of this chapter, including a summary of background groundwater quality values, groundwater monitoring analyses, statistical calculations, graphs, and drawings;(3) the groundwater flow rate and direction in the uppermost aquifer. The groundwater flow rate and direction of groundwater flow shall be established using the data collected during the preceding calendar year's sampling events from the monitoring wells of the Corrective Action Program. The owner or operator shall also include in the report all documentation used to determine the groundwater flow rate and direction of groundwater flow;(4) a contour map of piezometric water levels in the uppermost aquifer based at a minimum upon concurrent measurement in all monitoring wells. All data or documentation used to establish the contour map should be included in the report;(5) recommendation for any changes; and(6) any other items requested by the executive director.(f) Remedies selected under §330.413 of this title shall be considered complete when:(1) the owner or operator complies with the groundwater protection standards established under §330.409(h), (i), or (j) of this title at all points within the plume of contamination that lies beyond the groundwater monitoring system established under §330.403 of this title (relating to Groundwater Monitoring Systems);(2) compliance with the groundwater protection standards established under §330.409 (h), (i), or (j) of this title has been achieved by demonstrating that concentrations of 40 Code of Federal Regulations Part 258, Appendix II constituents have not exceeded the groundwater protection standards for a period of three consecutive years, using the statistical procedures in §330.405(e) and (f) of this title (relating to Groundwater Sampling and Analysis Requirements) and performance standards in §330.409(h), (i), or (j) of this title. The executive director may specify an alternative length of time during which the owner or operator shall demonstrate that concentrations of 40 Code of Federal Regulations Part 258, Appendix II constituents have not exceeded the groundwater protection standards. The alternative length of time shall be based on:(A) extent and concentration of the release;(B) behavior characteristics of the hazardous constituents in the groundwater;(C) accuracy of monitoring or modeling techniques, including any seasonal, meteorological, or other environmental variabilities that may affect the accuracy; and(D) characteristics of the groundwater; and(3) all actions required to complete the remedy have been satisfied.(g) Within 15 days of completion of the remedy, the owner or operator shall submit to the executive director and also place in the operating record a certification by a qualified groundwater scientist that the remedy has been completed in compliance with the requirements of subsection (a) of this section.(h) Upon submittal of satisfactory certification of the completion of the corrective action remedy, the executive director may release the owner or operator from the requirements for financial assurance for corrective action under §330.509 of this title (relating to Corrective Action Cost Estimates for Landfills).</content><note type="source"><p>Source Note: The provisions of this §330.415 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scJ/s330.417"><num value="330.417">§330.417</num><heading>Groundwater Monitoring at Type IV Landfills</heading><content>(a) The requirements in this section apply to Type IV landfills, as defined in §330.5(a)(2) of this title (relating to Classification of Municipal Solid Waste Facilities), except as provided in §330.5(b) of this title, and in subsection (b) of this section.(b) At the discretion of the executive director, the owner or operator of a Type IV landfill may be required to install groundwater monitoring systems and to monitor on a regular basis the quality of groundwater at the point of compliance.(1) The factors to be considered by the executive director in determining the need for groundwater monitoring shall include: relationship of the facility to drinking water intakes (both surface and subsurface); hydrogeology of the shallow water-bearing zones in the facility area; use of shallow groundwater in the facility area; type of waste being or to be taken; types of liner; likelihood of leakage of contaminants from the facility; and protection of human health and the environment.(2) A groundwater monitoring system shall be installed in accordance with §330.403 of this title (relating to Groundwater Monitoring Systems) except for the point of compliance monitoring well spacing requirement of §330.403(a)(2) of this title.(3) Groundwater sampling and analysis requirements shall be in accordance with §330.405(a) - (d) of this title (relating to Groundwater Sampling and Analysis Requirements).(4) Each monitoring well or other sampling point shall be sampled and analyzed annually, or on some other schedule but not less frequently than annually as determined by the executive director, for the following constituents: chloride, iron, manganese, cadmium, zinc, total dissolved solids, specific conductance (field and laboratory measurements), pH (field and laboratory measurements), and non-purgeable organic compounds.(5) Not later than 60 days after each sampling event, the owner or operator shall determine whether the landfill has released contaminants to the uppermost aquifer. The owner or operator shall provide an annual detection monitoring report within 60 days after the facility's annual groundwater monitoring event that includes the following information determined since the previously submitted report:(A) the results of all monitoring, testing, and analytical work obtained or prepared in accordance with the requirements of this permit, including a summary of background groundwater quality values, groundwater monitoring analyses, any statistical calculations, graphs, and drawings;(B) the groundwater flow rate and direction in the uppermost aquifer. The groundwater flow rate and direction of groundwater flow shall be established using the data collected during the preceding calendar year's sampling events from the monitoring wells of the Detection Monitoring Program. The owner or operator shall also include in the report all documentation used to determine the groundwater flow rate and direction of groundwater flow;(C) a contour map of piezometric water levels in the uppermost aquifer based at a minimum upon concurrent measurement in all monitoring wells. All data or documentation used to establish the contour map should be included in the report;(D) recommendation for any changes; and(E) any other items requested by the executive director.(6) The executive director may require additional sampling, analyses of additional constituents, installation of additional monitoring wells or other sampling points, and/or other hydrogeological investigations if the facility appears to be contaminating the uppermost aquifer.(7) If the owner or operator finds the facility to have contaminated or be contaminating the uppermost aquifer, the executive director may order corrective action appropriate to protect human health and the environment up to and including that in §§330.411, 330.413, and 330.415 of this title (relating to Assessment of Corrective Measures; Selection of Remedy; and Implementation of the Corrective Action Program).</content><note type="source"><p>Source Note: The provisions of this §330.417 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scJ/s330.419"><num value="330.419">§330.419</num><heading>Constituents for Detection Monitoring</heading><content>(a) The owner or operator shall sample and analyze the groundwater monitoring system for the constituents listed in 40 Code of Federal Regulations (CFR) Part 258, Appendix I, effective July 14, 2005, herein adopted by reference.(b) The executive director may delete any of the constituents listed in 40 CFR Part 258, Appendix I for a municipal solid waste management unit if it can be documented that the removed constituents are not reasonably expected to be in or derived from the waste contained in the unit.(c) The executive director may establish an alternative list of inorganic indicator constituents for a municipal solid waste management unit in lieu of some or all of the heavy metals (constituents (1) - (15) in the table located in 40 CFR Part 258, Appendix I) if the alternative constituents provide a reliable indication of inorganic releases from the municipal solid waste management unit to the groundwater. The executive director may also add inorganic or organic constituents to those to be tested if they are reasonably expected to be in or derived from the waste contained in the unit or if they are likely to provide a useful indication of releases from the municipal solid waste management unit to the groundwater. In determining alternative or additional constituents, the executive director shall consider the following factors:(1) the types, concentrations, quantities, and persistence of waste constituents in wastes at the municipal solid waste management unit;(2) the mobility, stability, and persistence of waste constituents or their reaction products in the unsaturated and saturated zones adjacent to or beneath the municipal solid waste management unit;(3) the detectability of indicator constituents, waste constituents, and reaction products in the groundwater; and(4) the concentrations and coefficients of variation of monitoring parameters or constituents in the groundwater background.</content><note type="source"><p>Source Note: The provisions of this §330.419 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scJ/s330.421"><num value="330.421">§330.421</num><heading>Monitor Well Construction Specifications</heading><content>(a) Monitoring well construction. Monitoring well construction shall provide for maintenance of the integrity of the bore hole, collection of representative groundwater samples from the water-bearing zone(s) of concern, and prevention of migration of groundwater and surface water within the bore hole. The following specifications must be used for the installation of groundwater monitoring wells at municipal solid waste landfills. Equivalent alternatives to these specifications may be used if prior written approval is obtained in advance from the executive director.(1) Drilling.(A) Monitoring wells must be drilled by a Texas-licensed driller who is qualified to drill and install monitoring wells. The installation and development shall be supervised by a licensed professional geoscientist or engineer who is familiar with the geology of the area.(B) The well shall be drilled by a method that will allow installation of the casing, screen, etc., and that will not introduce contaminants into the borehole or casing. Drilling techniques used for boring shall take into account the materials to be drilled, depth to groundwater, total depth of the hole, adequate soil sampling, and other such factors that affect the selection of the drilling method. If any fluids are necessary in drilling or installation, then clean, treated city water shall be used; other fluids must be approved in writing by the executive director before use. If city water is used, a current chemical analysis of the city water shall be provided with the monitor-well report.(C) The diameter of the boring shall be at least four inches larger than the diameter of the casing. When the boring is in hard rock, a smaller annulus may be approved by the executive director.(D) A log of the boring shall be made by or under the supervision of a licensed professional geoscientist or engineer who is familiar with the geology of the area, and shall be sealed, signed, and dated by the licensed professional.(2) Casing, screen, filter pack, and seals.(A) The well casing shall be: two to four inches in diameter; National Sanitation Foundation-certified polyvinyl chloride (PVC) Schedule 40 or 80 pipe, flush-thread, screw joint (no glue or solvents); polytetrafluorethylene (PTFE, such as Teflon) tape or O-rings in the joints; no collar couplings. The top of the casing shall be at least two feet above ground level. Where high levels of volatile organic compounds or corrosive compounds are anticipated, stainless steel or PTFE casing and screen may be used, subject to approval by the executive director. Four-inch diameter casing is recommended because it allows larger volume samples to be obtained and provides easier access for development, pumps, and repairs. The casing shall be cleaned and packaged at the place of manufacture; the packaging shall include a PVC wrapping on each section of casing to keep it from being contaminated prior to installation. The casing shall be free of ink, labels, or other markings. The casing (and screen) shall be centered in the hole to allow installation of a good filter pack and annular seal. Centralizers are recommended on wells over six meters (20 feet) in length, but may not be needed if the wells are installed through hollow-stem augers. The top of the casing shall be protected by a threaded or slip-on top cap or by a sealing cap or screw-plug seal inserted into the top of the casing. The cap shall be vented to prevent buildup of methane or other gases and shall be designed to prevent moisture from entering the well.(B) The screen shall be compatible with the casing and should generally be of the same material. The screen shall not involve the use of any glues or solvents for construction. A wire-wound screen is recommended to provide maximum inflow area. Field-cut slots are not permitted for well screen. Filter cloth shall not be used. A blank-pipe sediment trap, typically one to two feet, should be installed below the screen. A bottom cap is typically placed on the bottom of the sediment trap. The sediment trap shall not extend through the lower confining layer of the water-bearing zone being tested. Screen sterilization methods are the same as those for casing. Selection of the size of the screen opening should be done by a person experienced with such work and shall include consideration of the distribution of particle sizes both in the water-bearing zone and in the filter pack surrounding the screen. The screen opening shall not be larger than the smallest fraction of the filter pack.(C) The filter pack, placed between the screen and the well bore, shall consist of prepackaged, inert, clean silica sand or glass beads; it shall extend from one to four feet above the top of the screen. Open stockpile sources of sand or gravel are not permitted. The filter pack usually has a 30% finer grain size that is about four to ten times larger than the 30% finer grain size of the water-bearing zone; the filter pack should have a uniformity coefficient less than 2.5. The filter pack should be placed with a tremie pipe to ensure that the material completely surrounds the screen and casing without bridging. The tremie pipe shall be steam cleaned prior to the first well and before each subsequent well.(D) The annular seal shall be placed on top of the filter pack and shall be at least two feet thick. It should be placed in the zone of saturation to maintain hydration. The seal should be composed of coarse-grain sodium bentonite, coarse-grit sodium bentonite, or bentonite grout. Special care should be taken to ensure that fine material or grout does not plug the underlying filter pack. Placement of a few inches of prepackaged clean fine sand on top of the filter pack will help to prevent migration of the annular seal material into the filter pack. The seal should be placed on top of the filter pack with a steam-cleaned tremie pipe to ensure good distribution and should be tamped with a steam-cleaned rod to determine that the seal is thick enough. The bentonite shall be hydrated with clean water prior to any further activities on the well and left to stand until hydration is complete (eight to 12 hours, depending on the grain size of the bentonite). If a bentonite-grout (without cement) casing seal is used in the well bore, then it may replace the annular seal described in this paragraph.(E) A casing seal shall be placed on top of the annular seal to prevent fluids and contaminants from entering the borehole from the surface. The casing seal shall consist of a commercial bentonite grout or a cement-bentonite mixture. Drilling spoil, cuttings, or other native materials are not permitted for use as a casing seal. Quick-setting cements are not permitted for use because contaminants may leach from them into the groundwater. The top of the casing seal shall be between five and two feet from the surface.(3) Concrete pad. High-quality structural-type concrete shall be placed from the top of the casing seal (two to five feet below the surface) continuously to the top of the ground to form a pad at the surface. This formed surface pad shall be at least six inches thick and not less than four (preferably six) feet square or five (preferably six) feet in diameter. The pad shall contain sufficient reinforcing steel to ensure its structural integrity in the event that soil support is lost. The top of the pad shall slope away from the well bore to the edges to prevent ponding of water around the casing or collar.(4) Protective collar. A steel protective pipe collar shall be placed around the casing "stickup" to protect it from damage and unwanted entry. The collar shall be set at least one foot into the surface pad during its construction and should extend at least three inches above the top of the well casing (and top cap, if present). The top of the collar shall have a lockable hinged top flap or cover. A sturdy lock shall be installed, maintained in working order, and kept locked when the well is not being bailed/purged or sampled. The well number or other designation shall be marked permanently on the protective steel collar; it is useful to mark the total depth of the well and its elevation on the collar.(5) Protective barrier. Where monitoring wells are likely to be damaged by moving equipment or are located in heavily traveled areas, a protective barrier shall be installed. A typical barrier is three or four six- to 12-inch diameter pipes set in concrete just off the protective pad. The pipes can be joined by pipes welded between them, but consideration must be given to well access for sampling and other activities. Separation of such a pipe barrier from the pad means that the barrier can be damaged without risk to the pad and well. Other types of barriers may be approved by the executive director.(b) Unusual conditions. Where monitoring wells are installed in unusual conditions, all aspects of the installation shall be approved in writing in advance by the executive director. Such aspects include, for example, the use of cellar-type enclosures for the top-well equipment or multiple completions in a single hole.(c) Development. After a monitoring well is installed, it shall be developed to remove artifacts of drilling (clay films, bentonite pellets in the casing, etc.) and to open the water-bearing zone for maximum flow into the well. Development should continue until all of the water used or affected during drilling activities has been removed and field measurements of pH, specific conductance, and temperature have stabilized. Failure to develop a well properly may mean that it is not properly monitoring the water-bearing zone or may not yield adequate water for sampling even though the water-bearing zone is prolific.(d) Location and elevation. Upon completion of a monitoring well, the location of the well and all appropriate elevations associated with the top-well equipment shall be surveyed by a registered professional surveyor. The elevation shall be surveyed to the nearest 0.01 foot above mean sea level (with year of the sea-level datum shown). The point on the well casing for which the elevation was determined shall be permanently marked on the casing. The location shall be given in terms of the latitude and longitude at least to the nearest tenth of a second or shall be accurately located with respect to the landfill grid system described in §330.143(b)(5) of this title (relating to Landfill Markers and Benchmark).(e) Reporting. Monitoring well installation and construction details must be submitted on forms available from the commission and must be completed and submitted within 60 days of well completion. A copy of the detailed geologic log of the boring, a description of development procedures, any particle size or other sample data from the well, and a site map drawn to scale showing the location of all monitoring wells and the point of compliance must be submitted to the executive director at the same time. The licensed driller should be familiar with the forms required by other agencies; a copy of those forms must also be submitted to the commission.(f) Damaged wells. Any monitoring well that is damaged to the extent that it is no longer suitable for sampling shall be reported to the executive director, who may make a determination about whether to repair or replace the well.(g) Plugging and abandonment. Any monitoring well that is no longer used shall be properly abandoned and plugged in accordance with 16 TAC §76.72 (relating to Responsibilities of the Licensee and Landowner--Well Drilling, Completion, Capping and Plugging) and §76.104 (relating to Technical Requirements--Standards for Capping and Plugging of Wells and Plugging Wells that Penetrate Injurious Water Zones). No abandonment shall take place without prior authorization in writing by the executive director.</content><note type="source"><p>Source Note: The provisions of this §330.421 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scK"><num value="K">SUBCHAPTER K</num><heading>CLOSURE AND POST-CLOSURE</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scK/s330.451"><num value="330.451">§330.451</num><heading>Applicability</heading><content>(a) The requirements in this subchapter apply to all municipal solid waste (MSW) landfill units or MSW facilities as defined in §330.5 of this title (relating to Classification of Municipal Solid Waste Facilities).(b) The owner or operator of all existing MSW landfill units or lateral expansions at a facility who is unable to comply with §330.545 of this title (relating to Airport Safety), §330.547 of this title (relating to Floodplains), or §330.559 of this title (relating to Unstable Areas), as applicable; shall complete final closure of the unit or facility by October 9, 1996, and conduct post-closure activities in accordance with §330.463(a) of this title (relating to Post-Closure Care Requirements).(c) The deadline for closure required by subsection (b) of this section may be extended up to two years if the owner or operator of the MSW landfill unit or MSW facility submits to the executive director for review and approval a request for an extension of the closure deadline that demonstrates to the satisfaction of the executive director that there is no alternative disposal capacity and there is no immediate threat to human health and the environment from the unclosed MSW landfill unit or MSW facility.(d) Permits that existed before the comprehensive rule revisions of this chapter adopted in 2006 became effective remain valid subject to the requirements of §330.401(b) of this title (relating to Applicability).</content><note type="source"><p>Source Note: The provisions of this §330.451 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scK/s330.453"><num value="330.453">§330.453</num><heading>Closure Requirements for Municipal Solid Waste Landfill Units that Stopped Receiving Waste Prior to October 9, 1991, Type IV Landfills, and Municipal Solid Waste Sites</heading><content>(a) The final cover system shall be composed of no less than two feet of soil. The first 18 inches or more of cover shall be of clayey soil, classification sand clayey (SC) or low plasticity clayey (CL) as defined in the "Unified Soils Classification System" developed by the United States Army Corps of Engineers, compacted in layers of no more than six inches to minimize the potential for water infiltration. A high plasticity clayey (CH) soil may be used; however, this soil may experience excessive cracking and shall therefore be covered by a minimum of 12 inches of topsoil to retain moisture. Other types of soil may be used with prior written approval from the executive director.(b) The final six inches of cover shall be of suitable topsoil that is capable of sustaining native plant growth and shall be seeded or sodded immediately following the application of the final cover in order to minimize erosion.(c) Side slopes of the final cover for all above-ground disposal areas (aerial fills) shall not exceed a 25% grade (four feet horizontal to one foot vertical). Side slopes for the final cover in excess of 25% may be authorized by the executive director, provided that controlled drainage such as flumes, diversion terraces, spillways, or other acceptable methods are incorporated into the final cover system design in the site development plan and submitted to the executive director for review and approval. The final cover for the topmost portion of a unit or facility shall have a gradient of not less than 2.0% and not greater than 6.0%, and shall possess a sufficient minimum grade to preclude ponding of surface water when total fill height and expected subsidence are taken into consideration.(d) The executive director may approve an alternative final cover design that:(1) achieves an equivalent reduction in infiltration as the clayey soil cover infiltration layer specified in subsection (a) of this section; and(2) provides equivalent protection from wind and water erosion as the topsoil layer specified in subsection (b) of this section.(e) No later than 60 days prior to the initiation of closure activities, the owner or operator shall submit the design and specifications for the closure of these municipal solid waste (MSW) landfill units or MSW sites to the executive director for review and approval. The final cover shall be installed no later than October 9, 1993.(f) After completion of closure, the owner or operator of these MSW landfill units or MSW sites shall comply with the post-closure care requirements for this final cover, as detailed in §330.463(a) of this title for the duration of the post-closure period for these units or sites.</content><note type="source"><p>Source Note: The provisions of this §330.453 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scK/s330.455"><num value="330.455">§330.455</num><heading>Closure Requirements for Municipal Solid Waste Landfill Units that Received Waste on or after October 9, 1991, but Stopped Receiving Waste Prior to October 9, 1993</heading><content>(a) The owner or operator of these units shall comply with all final cover requirements as specified in §330.457 of this title (relating to Closure Requirements for Municipal Solid Waste Landfill Units that Receive Waste on or after October 9, 1993).(b) The final cover shall be completed by October 9, 1994. Owners or operators of municipal solid waste landfill units that fail to complete final cover installation within this 180-day period will be subject to all requirements of §330.463(b) of this title (relating to Post-Closure Care Requirements) unless otherwise specified.(c) After completion of closure, the owner or operator of these municipal solid waste landfill units or facilities shall comply with all post-closure care requirements for the final cover of these units or facilities as specified in §330.463(a) of this title.</content><note type="source"><p>Source Note: The provisions of this §330.455 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scK/s330.457"><num value="330.457">§330.457</num><heading>Closure Requirements for Municipal Solid Waste Landfill Units that Receive Waste on or after October 9, 1993</heading><content>(a) The owner or operator shall install a final cover system for the unit that is designed and constructed to minimize infiltration and erosion. The final cover system shall be composed of no less than two feet of soil and consist of a clay-rich soil cover layer overlain by an erosion layer as follows. (1) For municipal solid waste landfill (MSW) units with a synthetic bottom liner, a synthetic membrane that has a permeability less than or equal to the permeability of any bottom liner system overlain by a clay-rich soil cover layer consisting of a minimum of 18 inches of earthen material with a coefficient of permeability no greater than 1 x 10 -5 centimeters/second (cm/sec). The minimum thickness of the synthetic membrane shall be 20 mils, or 60 mils in the case of high-density polyethylene, in order to ensure proper seaming of the synthetic membrane. (2) For MSW landfill units with no synthetic bottom liner, the clay-rich soil cover layer shall consist of a minimum of 18 inches of earthen material with a coefficient of permeability less than or equal to the permeability of any constructed bottom liner or natural subsoil present. The coefficient of permeability of the infiltration layer shall in no case exceed 1 x 10-5 cm/sec, even though the coefficient of permeability of the constructed bottom liner or natural subsoil is greater than 1 x 10-5 cm/sec or no data exist for the value(s) of the coefficient of permeability of the constructed bottom liner or natural subsoil. (3) For all MSW landfill units, the erosion layer shall consist of a minimum of six inches of earthen material that is capable of sustaining native plant growth and shall be seeded or sodded immediately following the application of the final cover in order to minimize erosion. (b) The final cover placed over a dedicated Class 1 industrial solid waste cell must consist of a minimum of 18 inches of uncontaminated topsoil overlying four feet of compacted clay-rich soil material with a coefficient of permeability no greater than 1 x 10-7 cm/sec unless waste is to be placed on top of the Class 1 industrial solid wastes. If waste is to be placed above Class 1 industrial solid wastes, the Class 1 industrial solid waste must first be covered with a four-foot layer of compacted clay-rich soil. The final cover over the aerial fill must meet the requirements of this subchapter and must include a flexible membrane component. (c) Quality control testing documentation is as follows. The owner or operator shall test the 18 inches of compacted clay-rich soil cover for its coefficient of permeability at a frequency of no less than one test per surface acre of final cover. Permeability data shall be submitted to the executive director. (d) The executive director may approve an alternative final cover design that: (1) a cover achieves an equivalent reduction in infiltration as the clay-rich soil cover layer specified in subsection (a)(1) or (2) of this section; and (2) provides equivalent protection from wind and water erosion as the erosion layer specified in subsection (a)(3) of this section. (e) The owner or operator of all MSW landfill units or lateral expansions at a facility shall prepare a written closure plan that describes the steps necessary to close all MSW landfill units at any point during the active life of the unit. The closure plan, at a minimum, shall include the following information: (1) a description of the final cover design, methods, and procedures to be used to install the cover; (2) an estimate of the largest area of the MSW landfill unit or MSW facility ever requiring a final cover at any time during the active life of the unit or MSW facility; (3) an estimate of the maximum inventory of wastes ever on-site over the active life of the unit or MSW facility; (4) a schedule for completing all activities necessary to satisfy the closure criteria; and (5) a final contour map depicting the proposed final contours, establishing top slopes and side slopes, proposed surface drainage features, and protection of any 100-year floodplain. (f) Implementation of the closure plan is as follows. (1) The owner or operator shall place a copy of the closure plan in the operating record by the initial receipt of waste. (2) No later than 45 days prior to the initiation of closure activities for an MSW landfill unit, the owner or operator of the unit shall provide written notification to the executive director of the intent to close the unit and place this notice of intent in the operating record. (3) The owner or operator of all MSW landfill units at a facility shall begin closure activities for each unit no later than 30 days after the date on which the unit receives the known final receipt of wastes or, if the unit has remaining capacity and there is a reasonable likelihood that the unit will receive additional wastes, no later than one year after the most recent receipt of wastes. A request for an extension beyond the one-year deadline for the initiation of closure may be submitted to the executive director for review and approval and shall include all applicable documentation necessary to demonstrate that the unit has the capacity to receive additional waste and that the owner or operator has taken and will continue to take all steps necessary to prevent threats to human health and the environment from the MSW landfill unit. (4) The owner or operator of an MSW landfill unit shall complete closure activities for the unit in accordance with the approved closure plan within 180 days following the initiation of closure activities as specified in paragraph (3) of this subsection. A request for an extension for the completion of closure activities may be submitted to the executive director for review and approval and shall include all applicable documentation necessary to demonstrate that closure will, of necessity, take longer than 180 days and all steps have been taken and will continue to be taken to prevent threats to human health and the environment from the unclosed MSW landfill unit. (5) Following completion of all closure activities for the MSW landfill unit, the owner or operator shall comply with the post-closure care requirements specified in §330.463(b) of this title (relating to Post-Closure Care Requirements). The owner or operator shall submit to the executive director by registered mail for review and approval a certification, signed by an independent licensed professional engineer, verifying that closure has been completed in accordance with the approved closure plan. The submittal to the executive director shall include all applicable documentation necessary for certification of closure. Once approved, this certification shall be placed in the operating record. (6) Following receipt of the required closure documents, as applicable, and an inspection report from the agency's regional office verifying proper closure of the MSW landfill unit according to the approved closure plan, the executive director may acknowledge the termination of operation and closure of the unit and deem it properly closed. (g) Within ten days after closure of all MSW landfill units, the owner and operator shall submit to the executive director by registered mail a certified copy of an "affidavit to the public" in accordance with the requirements of §330.19 of this title (relating to Deed Recordation) and place a copy of the affidavit in the operating record. In addition, the owner or operator shall record a certified notation of the deed to the facility property, or on some other instrument that is normally examined during title search, that will in perpetuity notify any potential purchaser of the property that the land has been used as a landfill facility and use of the land is restricted according to the provisions specified in §330.465 of this title (relating to Certification of Completion of Post-Closure Care). The owner or operator shall submit a certified copy of the modified deed to the executive director and place a copy of the modified deed in the operating record within the time frame specified in this subsection.</content><note type="source"><p>Source Note: The provisions of this §330.457 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scK/s330.459"><num value="330.459">§330.459</num><heading>Closure Requirements for Municipal Solid Waste Storage and Processing Units</heading><content>(a) The owner or operator shall remove all waste, waste residues, and any recovered materials. Facility units shall either be dismantled and removed off-site or decontaminated.(b) The owner or operator shall evacuate all material on-site (feedstock, in process, and processed) to an authorized facility and disinfect all leachate handling units, tipping areas, processing areas, and post-processing areas.(c) If there is evidence of a release from a municipal solid waste unit, the executive director may require an investigation into the nature and extent of the release and an assessment of measures necessary to correct an impact to groundwater.(d) A recycling facility that stores combustible material outdoors, or that poses a significant risk to public health and safety as determined by the executive director, must comply with the following closure requirements.(1) Closure must include collecting processed and unprocessed materials, and transporting the materials to an authorized facility for disposition unless otherwise approved or directed in writing by the executive director.(2) Closure of the facility must be completed within 180 days following the most recent acceptance of processed or unprocessed materials unless otherwise directed or approved in writing by the executive director.</content><note type="source"><p>Source Note: The provisions of this §330.459 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scK/s330.461"><num value="330.461">§330.461</num><heading>Certification of Final Facility Closure</heading><content>(a) No later than 90 days prior to the initiation of a final facility closure, the owner or operator shall, through a public notice in the newspaper(s) of largest circulation in the vicinity of the facility, provide public notice for final facility closure. This notice shall provide the name, address, and physical location of the facility; the permit, registration, or notification number, as appropriate; and the last date of intended receipt of waste. The owner or operator shall also make available an adequate number of copies of the approved final closure and post-closure plans for public access and review. The owner or operator shall also provide written notification to the executive director of the intent to close the facility and place this notice of intent in the operating record.(b) Upon notification to the executive director as specified in subsection (a) of this section, the owner or operator of a municipal solid waste management facility shall post a minimum of one sign at the main entrance and all other frequently used points of access for the facility notifying all persons who may utilize the facility of the date of closing for the entire facility and the prohibition against further receipt of waste materials after the stated date. Further, suitable barriers shall be installed at all gates or access points to adequately prevent the unauthorized dumping of solid waste at the closed facility.(c) Within ten days after completion of final closure activities of a facility, the owner and operator shall submit to the executive director by registered mail the following:(1) if wastes will remain at the closed facility, a certified copy of an "affidavit to the public" in accordance with the requirements of §330.19 and §330.457(g) of this title (relating to Deed Recordation and Closure Requirements for Municipal Solid Waste Landfill Units that Receive Waste on or after October 9, 1993). In addition, the owner or operator of the closed facility shall record a certified notation on the deed to the facility property, or on some other instrument that is normally examined during title search, that will in perpetuity notify any potential purchaser of the property that the land has been used as a landfill facility and use of the land is restricted according to the provisions specified in §330.465 of this title (relating to Certification of Completion of Post-Closure Care). The owner or operator shall submit a certified copy of the modified deed to the executive director and place a copy of the modified deed in the operating record within the time frame specified in this paragraph;(2) a certification, signed by an independent licensed professional engineer, verifying that final facility closure has been completed in accordance with the approved closure plan. The submittal to the executive director shall include all applicable documentation necessary for certification of final facility closure; and(3) for a facility that does not require post-closure care, a request for voluntary revocation of the facility permit or registration, as applicable.(d) The owner or operator of the facility may request permission from the executive director to remove the notation from the deed if all wastes are removed from the facility in accordance with §330.7(a) of this title (relating to Permit Required).</content><note type="source"><p>Source Note: The provisions of this §330.461 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scK/s330.463"><num value="330.463">§330.463</num><heading>Post-Closure Care Requirements</heading><content>(a) Post-closure care maintenance requirements for municipal solid waste management units subject to the applicable requirements of this subsection.(1) For a minimum of the first five years after professional engineer certification of the completion of closure as accepted by the executive director, the owner or operator shall retain the right of entry to and maintain all rights-of-way of a closed municipal solid waste management unit in order to conduct periodic inspections of the closed unit. The owner or operator shall correct, as needed, erosion of cover material, lack of vegetative growth, leachate or methane migration, and subsidence or ponding of water on the unit. If any of these problems occur after the end of the five-year post-closure period or persist for longer than the first five years of post-closure care, the owner or operator shall be responsible for their correction until the executive director determines that all problems have been adequately resolved. The executive director may reduce the post-closure period for the unit if all wastes and waste residues have been removed during closure.(2) Any monitoring programs (groundwater monitoring, resistivity surveys, methane monitoring, etc.) in effect during the life of the unit shall be continued during the post-closure care period.(3) If there is evidence of a release from a municipal solid waste unit, the executive director may require an investigation into the nature and extent of the release and an assessment of measures necessary to correct an impact to groundwater.(b) Post-closure care requirements for municipal solid waste management units subject to the requirements of this subsection.(1) After professional engineer certification of the completion of closure requirements for a municipal solid waste management unit as accepted by the executive director, the owner or operator shall conduct post-closure care for the unit for 30 years, except as specified by paragraph (2)(A) or (B) of this subsection. Post-closure care shall consist, at a minimum, of the following.(A) The owner or operator shall retain the right of entry to the closed unit and shall maintain all rights-of-way and conduct maintenance and/or remediation activities, as needed, in order to maintain the integrity and effectiveness of all final cover, facility vegetation, and drainage control system(s), to correct any effects of settlement, subsidence, ponded water, erosion, or other events or failures detrimental to the integrity of the closed unit and to prevent any surface run-on and run-off from eroding or otherwise damaging the final cover system.(B) The owner or operator shall maintain and operate the leachate collection system in accordance with the requirements in §330.331 and §330.333 of this title (relating to Design Criteria and Leachate Collection System, respectively). The executive director may allow the owner or operator to stop managing leachate if the owner or operator demonstrates to the approval of the executive director that leachate no longer poses a threat to human health and the environment.(C) The owner or operator shall monitor groundwater in accordance with the requirements of Subchapter J of this chapter (relating to Groundwater Monitoring and Corrective Action) and maintain the groundwater monitoring system, if applicable.(D) The owner or operator shall maintain and operate the gas monitoring system in accordance with the requirements of Subchapter I of this chapter (relating to Landfill Gas Management).(E) The owner or operator shall continue earth electrical resistivity surveys at the frequency stated in the approved site development plan.(2) The length of the post-closure care period may be:(A) decreased by the executive director if the owner or operator submits to the executive director for review and approval a documented certification, signed by a licensed professional engineer and including all applicable documentation necessary to support the certification, that demonstrates that the reduced period is sufficient to protect human health and the environment; or(B) increased by the executive director if it is determined that the lengthened period is necessary to protect human health and the environment. If there is evidence of a release from a municipal solid waste unit, the executive director may require an investigation into the nature and extent of the release and an assessment of measures necessary to correct an impact to groundwater.(3) The owner or operator shall place a copy of the post-closure plan in the operating record by the initial receipt of waste. The post-closure plan shall include, at a minimum, the following information:(A) a description of the monitoring and maintenance activities required in paragraph (1) of this subsection for each unit, and the frequency at which these activities will be performed;(B) the name, address, and telephone number of the office or person responsible for overseeing and/or conducting the post-closure care activities at the closed unit or facility during the post-closure period;(C) a description of the planned uses of any portion of the closed unit during the post-closure period in accordance with §330.465 of this title (relating to Certification of Completion of Post-Closure Care); and(D) a detailed written estimate, in current dollars, of the cost of post-closure care maintenance and any corrective action as described in the post-closure care plan or required by the executive director or the commission and which satisfies the requirements specified in Subchapter L of this chapter (relating to Closure, Post-Closure, and Corrective Action Cost Estimates).</content><note type="source"><p>Source Note: The provisions of this §330.463 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scK/s330.465"><num value="330.465">§330.465</num><heading>Certification of Completion of Post-Closure Care</heading><content>(a) Following completion of the post-closure care maintenance period for each municipal solid waste landfill unit, the owner or operator shall submit to the executive director for review and approval a certification, signed by an independent licensed professional engineer, verifying that post-closure care has been completed in accordance with the approved post-closure plan. The submittal to the executive director shall include all applicable documentation necessary for the certification of completion of post-closure care.(b) Upon completion of the post-closure care period for the final unit at a facility, the owner and operator shall also submit to the executive director a request for voluntary revocation of the facility permit.</content><note type="source"><p>Source Note: The provisions of this §330.465 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scL"><num value="L">SUBCHAPTER L</num><heading>CLOSURE, POST-CLOSURE, AND CORRECTIVE ACTION COST ESTIMATES</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scL/s330.501"><num value="330.501">§330.501</num><heading>Applicability</heading><content>The closure, post-closure, or corrective action cost estimate requirements of this section apply to owners and operators of any municipal solid waste facility authorized under this chapter required to have financial assurance and any municipal solid waste process facility as defined in §330.5(a) of this title (relating to Classification of Municipal Solid Waste Facilities) that stores combustible material outdoors, or that poses a significant risk to public health and safety as determined by the executive director.</content><note type="source"><p>Source Note: The provisions of this §330.501 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scL/s330.503"><num value="330.503">§330.503</num><heading>Closure Cost Estimates for Landfills</heading><content>(a) The owner or operator shall provide a detailed written cost estimate, in current dollars, showing the cost of hiring a third party to close the largest waste fill area that could potentially be open in the year to follow and those areas that have not received final cover in accordance with the final closure plan. For any landfill this means the completion of the final closure requirements for active and inactive fill areas. The owner or operator shall submit the cost estimate for financial assurance with any new permit application, with any application for a permit transfer, and as a modification for all existing municipal solid waste permits that remain in effect after October 9, 1993.(1) The owner or operator shall review the facility's permit conditions on an annual basis and verify that the current active areas match the areas on which closure cost estimates are based.(2) An increase in the closure cost estimate and the amount of financial assurance provided under subsection (b) of this section shall be made if changes to the final closure plan or the landfill conditions increase the maximum cost of closure at any time during the remaining active life of the unit.(3) A reduction in the closure cost estimate and the amount of financial assurance provided under subsection (b) of this section may be approved if the cost estimate exceeds the maximum cost of closure at any time during the remaining life of the unit and the owner or operator has provided written notice to the executive director of the situation that includes a detailed justification for the reduction of the closure cost estimate and the amount of financial assurance. The owner or operator may request a reduction in the cost estimate and the financial assurance as a permit modification.(b) The owner or operator of any municipal solid waste unit shall establish financial assurance for closure of the unit in accordance with Chapter 37, Subchapter R of this title (relating to Financial Assurance for Municipal Solid Waste Facilities). Continuous financial assurance coverage for closure shall be provided until the facility is officially placed under the post-closure maintenance period and all requirements of the final closure plan have been approved as evidenced in writing by the executive director.</content><note type="source"><p>Source Note: The provisions of this §330.503 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scL/s330.505"><num value="330.505">§330.505</num><heading>Closure Cost Estimates for Storage and Processing Units</heading><content>(a) Closure cost estimates.(1) Except as otherwise approved by the executive director, an owner or operator of a recycling facility that stores combustible material outdoors, or that poses a significant risk to public health and safety as determined by the executive director, shall provide a written cost estimate, in current dollars, showing the cost of hiring a third party to close the process facility by disposition of all processed and unprocessed materials in accordance with all applicable regulations.(2) The estimate for storage and processing units must:(A) equal the costs of closure of the facility, including disposition of the maximum inventories of all waste and processed and unprocessed combustible materials stored outdoors on site during the life of the facility, in accordance with all applicable regulations;(B) be based on the costs of hiring a third party that is not affiliated (as defined in §328.2 of this title (relating to Definitions) with the owner or operator; and(C) be based on a per cubic yard and/or short ton measure for collection and disposition costs.(3) An increase in the closure cost estimate and the amount of financial assurance provided under subsection (b) of this section must be made if changes to the facility conditions increase the maximum cost of closure at any time during the active life of the facility.(4) A reduction in the closure cost estimate and the amount of financial assurance provided under subsection (b) of this section may be approved if the cost estimate exceeds the maximum cost of closure at any time during the remaining life of the facility and the owner or operator has provided written notice to the executive director of the detailed justification for the reduction of the closure cost estimate and the amount of financial assurance. For a permitted or registered facility, a reduction in the cost estimate and the financial assurance must be considered a modification and must be handled as such.(b) Financial assurance.(1) An owner or operator of a recycling facility that stores combustible material outdoors, or that poses a significant risk to public health and safety as determined by the executive director, shall establish and maintain financial assurance for closure of the facility in accordance with Chapter 37, Subchapter J of this title (relating to Financial Assurance for Recycling Facilities).(2) Continuous financial assurance coverage for closure must be provided until all requirements of the final closure plan have been completed and the site is determined to be closed in writing by the executive director.</content><note type="source"><p>Source Note: The provisions of this §330.505 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scL/s330.507"><num value="330.507">§330.507</num><heading>Post-Closure Care Cost Estimates for Landfills</heading><content>(a) The owner or operator shall provide a detailed written cost estimate, in current dollars, of the cost of hiring a third party to conduct post-closure care activities for the municipal solid waste unit, in accordance with the post-closure care plan. The post-closure care cost estimate used to demonstrate financial assurance in subsection (b) of this section shall account for the total costs of conducting post-closure care for the largest area that could possibly require post-closure care in the year to follow, including annual and periodic costs as described in the post-closure care plan over the entire post-closure care period. The cost estimate for financial assurance shall be submitted with any new permit application, with any application for a permit transfer, and as a modification for all existing municipal solid waste permits that remain in effect after October 9, 1993.(1) An increase in the post-closure care cost estimate and the amount of financial assurance provided under subsection (b) of this section shall be made if changes in the post-closure care plan or the unit conditions increase the maximum costs of post-closure care.(2) A reduction in the post-closure care cost estimate and the amount of financial assurance provided under subsection (b) of this section may be allowed if the cost estimate exceeds the maximum costs of post-closure care remaining over the post-closure care period and the owner or operator has provided written notice to the executive director of the detailed justification for the reduction of the post-closure cost estimate and the amount of financial assurance. The owner or operator may request a reduction in the cost estimate and the financial assurance as a permit modification.(b) The owner or operator of any municipal solid waste landfill unit shall establish financial assurance for the costs of post-closure care of the unit in accordance with Chapter 37, Subchapter R of this title (relating to Financial Assurance for Municipal Solid Waste Facilities). Continuous financial assurance coverage for post-closure care shall be provided until the facility is officially released in writing by the executive director from the post-closure care period in accordance with all requirements of the post-closure care plan.</content><note type="source"><p>Source Note: The provisions of this §330.507 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scL/s330.509"><num value="330.509">§330.509</num><heading>Corrective Action Cost Estimates for Landfills</heading><content>(a) The owner or operator of a municipal solid waste management unit required to undertake a corrective action program under §330.415 of this title (relating to Implementation of the Corrective Action Program) shall prepare a detailed written cost estimate, in current dollars, of the cost of hiring a third party to perform the corrective action program. The corrective action cost estimate shall account for the total costs of corrective action activities as described in the corrective action plan for the entire corrective action period. The owner or operator shall submit the cost estimate for financial assurance with the corrective action plan. Financial assurance shall be required for each separate corrective action program established for a municipal solid waste unit.(1) The corrective action cost estimate and the amount of financial assurance provided under subsection (b) of this section shall be increased if changes in the corrective action program or unit conditions increase the maximum costs of corrective action.(2) A reduction in the cost estimate and the amount of financial assurance for corrective action provided under subsection (b) of this section may be approved if the cost estimate exceeds the maximum remaining costs of corrective action at any time during the remaining corrective action period and the owner or operator has provided written notice to the executive director that includes a detailed justification for the reduction of the corrective action cost estimate and the amount of financial assurance. The owner or operator may request a reduction in the cost estimate and the financial assurance as a modification to the corrective action plan.(b) The owner or operator of any municipal solid waste management unit required to undertake a corrective action program established under §330.415 of this title shall establish financial assurance for the costs of the most recent corrective action program in accordance with Chapter 37, Subchapter R of this title (relating to Financial Assurance for Municipal Solid Waste Facilities). Continuous financial assurance coverage for each corrective action program shall be provided until the facility is officially released in writing by the executive director from all requirements of the corrective action program after completion of all work specified in the corrective action plan.</content><note type="source"><p>Source Note: The provisions of this §330.509 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scM"><num value="M">SUBCHAPTER M</num><heading>LOCATION RESTRICTIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scM/s330.541"><num value="330.541">§330.541</num><heading>Applicability</heading><content>This subchapter applies in accordance with the conditions specified in §330.1 and §330.451 of this title (relating to Purpose and Applicability; and Applicability).</content><note type="source"><p>Source Note: The provisions of this §330.541 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scM/s330.543"><num value="330.543">§330.543</num><heading>Easements and Buffer Zones</heading><content>(a) Easement protection. No solid waste unloading, storage, disposal, or processing operations shall occur within any easement, buffer zone, or right-of-way that crosses the facility. No solid waste disposal shall occur within 25 feet of the center line of any utility line or pipeline easement but no closer than the easement, unless otherwise authorized by the executive director. All pipeline and utility easements shall be clearly marked with posts that extend at least six feet above ground level, spaced at intervals no greater than 300 feet.(b) Buffer zones.(1) Except for facilities that are authorized by a notification, the owner or operator shall maintain a minimum separating distance of 50 feet between feedstock or final product storage areas; solid waste storage, processing, Type IAE landfill units, Type IV landfill units, and Type IVAE landfill units within and adjacent to the facility boundary on property owned or controlled by the owner or operator. The buffer zone shall not be narrower than that necessary to provide for safe passage for fire fighting and other emergency vehicles. The executive director may consider alternatives to buffer zone requirements for permitted and registered storage and processing municipal solid waste facilities.(2) For landfill permits that existed before the comprehensive rule revisions of this chapter as adopted in 2006 became effective, the owner or operator is subject to the former rules and shall establish and maintain a buffer zone in compliance with the permit. For new Type I landfills, vertical or lateral expansions of existing Type I landfills, and existing Type IAE landfills that subsequently no longer satisfy the conditions specified in §330.5(b)(1) of this title (relating to Classification of Municipal Solid Waste Facilities), the owner or operator shall establish and maintain the buffer zone prescribed by this paragraph. All buffer zones must be within and adjacent to the facility boundary on property owned or controlled by the owner or operator.(A) For any new Type I landfill, the owner or operator shall establish and maintain a 125-foot buffer zone.(B) For any vertical expansion, the owner or operator shall establish and maintain a 125-foot buffer zone. A vertical expansion is any height increase that exceeds the maximum permitted final contour for any cell or unit for which an increase is requested. For a vertical expansion, the buffer distance must be measured from the outermost edge of the newly permitted solid waste disposal airspace.(C) For any lateral expansion to areas not previously permitted, the owner or operator shall establish and maintain a 125-foot buffer zone. For a lateral expansion, the buffer distance must be measured from the edge of the horizontally expanded portion of the landfill.(D) For vertical or lateral expansions of existing landfills, the new buffer zone requirements shall apply only to newly permitted airspace and shall not apply to any previously permitted airspace, regardless of whether or not the previously permitted airspace has been constructed or filled with solid waste. The new buffer zone may include any previously permitted airspace.(3) The executive director may consider alternatives to buffer zone requirements in paragraph (2) of this subsection. Alternatives may be approved where the owner or operator demonstrates that:(A) the prescribed buffer zone standard is not feasible; and(B) there is a specific engineered design alternative that:(i) is consistent with the performance goal of providing a visual screening of solid waste processing and disposal activities;(ii) affords ready access for emergency response, maintenance, and monitoring;(iii) affords equivalent control of odors and windblown waste as the prescribed buffer zone; and(iv) provides sufficient distance to meet the drainage and sediment control requirements applicable to the facility.</content><note type="source"><p>Source Note: The provisions of this §330.543 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scM/s330.545"><num value="330.545">§330.545</num><heading>Airport Safety</heading><content>(a) Owners or operators of new municipal solid waste landfill units, existing municipal solid waste landfill units, vertical or lateral expansions, and landfill mining operations that are located within 10,000 feet of any airport runway end used by turbojet aircraft or within 5,000 feet of any airport runway end used by only piston-type aircraft shall demonstrate that the units are designed and operated so that the municipal solid waste landfill unit does not pose a bird hazard to aircraft.(b) Owners or operators proposing to site new municipal solid waste landfill units and lateral expansions located within a six-mile radius of any small general service airport runway end used by turbojet or piston-type aircraft shall notify the affected airport and the Federal Aviation Administration. Owners or operators proposing to site new municipal solid waste landfill units and lateral expansions located within a five-mile radius of any large general public commercial airport runway end used by turbojet or piston-type aircraft shall notify the affected airport and the Federal Aviation Administration.(c) The owner or operator shall submit the demonstration in subsection (a) of this section with a permit application or a permit amendment application. The demonstration will be considered a part of the operating record once approved.(d) Landfills disposing of putrescible waste shall not be located in areas where the attraction of birds can cause a significant bird hazard to low-flying aircraft. All landfill facilities within a six-mile radius of any small general service airport runway or within a five-mile radius of any large general public commercial airport runway shall be critically evaluated to determine if an incompatibility exists.</content><note type="source"><p>Source Note: The provisions of this §330.545 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scM/s330.547"><num value="330.547">§330.547</num><heading>Floodplains</heading><content>(a) No solid waste disposal operations shall be permitted in areas that are located in a 100-year floodway as defined by the Federal Emergency Management Administration.(b) New municipal solid waste management units, existing municipal solid waste units, and lateral expansions located in 100-year floodplains shall not restrict the flow of the 100-year flood, reduce the temporary water storage capacity of the floodplain, or result in washout of solid waste so as to pose a hazard to human health and the environment.(c) Municipal solid waste storage and processing facilities shall be located outside of the 100-year floodplain unless the owner or operator can demonstrate that the facility is designed and will operate to prevent washout during a 100-year storm event, or obtains a conditional letter of map amendment from the Federal Emergency Management Administration administrator.</content><note type="source"><p>Source Note: The provisions of this §330.547 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scM/s330.549"><num value="330.549">§330.549</num><heading>Groundwater</heading><content>(a) If located over the recharge zone of the Edwards Aquifer, a municipal solid waste facility is subject to Chapter 213 of this title (relating to Edwards Aquifer). The Edwards Aquifer Recharge Zone is specifically that area delineated on maps maintained by the executive director. In accordance with §213.8(a)(5) of this title (relating to Prohibited Activities), a Type I or Type IAE landfill is prohibited on the recharge zone of the Edwards Aquifer.(b) Unless the executive director approves an engineered design that the applicant has demonstrated will provide equal or greater protection to human health and the environment, a new landfill cell or an areal expansion of an existing landfill cell managing Class 1 industrial solid waste may not be located in areas described in §335.584(b)(1) and (2) of this title (relating to Location Restrictions).</content><note type="source"><p>Source Note: The provisions of this §330.549 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scM/s330.551"><num value="330.551">§330.551</num><heading>Endangered or Threatened Species</heading><content>(a) A facility and the operation of a facility shall not result in the destruction or adverse modification of the critical habitat of endangered or threatened species, or cause or contribute to the taking of any endangered or threatened species.(b) The following words and terms have the following meanings, unless the context clearly indicates otherwise.(1) Harassing--An intentional or negligent act or omission that creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns that include, but are not limited to, breeding, feeding, or sheltering.(2) Harming--An act of omission that actually injures or kills wildlife, including acts that annoy it to such an extent as to significantly disrupt essential behavioral patterns, that include, but are not limited to, breeding, feeding, or sheltering; significant environmental modification or degradation that has such effects is included within the meaning of harming.(3) Taking--Harassing, harming, pursuing, hunting, wounding, trapping, capturing, or collecting an endangered or threatened species or attempting to engage in such conduct.</content><note type="source"><p>Source Note: The provisions of this §330.551 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scM/s330.553"><num value="330.553">§330.553</num><heading>Wetlands</heading><content>(a) Municipal solid waste storage or processing facilities shall not be located in wetlands unless the owner or operator makes each of the demonstrations identified in subsection (b)(1) - (5) of this section.(b) New municipal solid waste landfill units, lateral expansions, and material recovery operations from a landfill shall not be located in wetlands, unless the owner or operator makes each of the demonstrations identified in paragraphs (1) - (5) of this subsection to the executive director. The owner or operator shall submit the demonstrations with a permit application, a permit major amendment application, or a registration application, as appropriate. The demonstration shall become part of the operating record once approved.(1) Where applicable under Clean Water Act, §404 or applicable state wetlands laws, the presumption that a practicable alternative to the proposed landfill or recovery operation is available that does not involve wetlands shall be clearly rebutted.(2) The construction and operation of the municipal solid waste landfill unit or recovery operation shall not:(A) cause or contribute to violations of any applicable state water quality standard;(B) violate any applicable toxic effluent standard or prohibition under the Clean Water Act, §307;(C) jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of a critical habitat, protected under the Endangered Species Act of 1973; and(D) violate any requirement under the Marine Protection, Research, and Sanctuaries Act of 1972 for the protection of a marine sanctuary.(3) The municipal solid waste landfill unit or recovery operation shall not cause or contribute to significant degradation of wetlands. The owner/operator shall demonstrate the integrity of the landfill unit and its ability to protect ecological resources by addressing the following factors:(A) erosion, stability, and migration potential of native wetland soils, muds, and deposits used to support the landfill unit;(B) erosion, stability, and migration potential of dredged and fill materials used to support the landfill unit;(C) the volume and chemical nature of the waste managed in the landfill unit;(D) impacts on fish, wildlife, and other aquatic resources and their habitat from release of the solid waste;(E) the potential effects of catastrophic release of waste to the wetland and the resulting impacts on the environment; and(F) any additional factors, as necessary, to demonstrate that ecological resources in the wetland are sufficiently protected.(4) To the extent required under Clean Water Act, §404 or applicable state wetlands laws, steps have been taken to attempt to achieve no net loss of wetlands (as defined by acreage and function) by first avoiding impacts to wetlands to the maximum extent practicable as required by paragraph (1) of this subsection, then minimizing unavoidable impacts to the maximum extent practicable, and finally offsetting remaining unavoidable wetland impacts through all appropriate and practicable compensatory mitigation actions (e.g., restoration of existing degraded wetlands or creation of man-made wetlands).(5) Sufficient information shall be made available to the executive director to make a reasonable determination with respect to these demonstrations.</content><note type="source"><p>Source Note: The provisions of this §330.553 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scM/s330.555"><num value="330.555">§330.555</num><heading>Fault Areas</heading><content>(a) New municipal solid waste landfill units and lateral expansions shall not be located within 200 feet of a fault that has had displacement in Holocene time unless the owner or operator demonstrates to the executive director that an alternative setback distance of less than 200 feet will prevent damage to the structural integrity of the landfill unit and will be protective of human health and the environment. The owner or operator shall submit the demonstration with a permit application or a permit amendment application.(b) Applications submitted for the operation of sites located within areas that may be subject to differential subsidence or active geological faulting must include detailed fault studies. When an active fault is known to exist within 1/2 mile of the site, the site must be investigated for unknown faults. Areas experiencing withdrawal of crude oil, natural gas, sulfur, etc., or significant amounts of groundwater must be investigated in detail for the possibility of differential subsidence or faulting that could adversely affect the integrity of landfill liners. Studies of differential subsidence or faulting shall be conducted under the direct supervision of a licensed professional engineer experienced in geotechnical engineering or a licensed professional geoscientist qualified to evaluate conditions of differential subsidence or faulting. The studies must establish the limits (both upthrown and downthrown) of the zones of influence of all active faulted areas within the site vicinity. Unless the owner or operator can provide substantial evidence that the zone of influence will not affect the site, no solid waste disposal shall be accomplished within a zone of influence of active geological faulting or differential subsidence because active faulting results in slippage along failure planes, thus creating preferred seepage paths for liquids. The studies must include information or data on the items in paragraphs (1) - (12) of this subsection, as applicable:(1) structural damage to constructed facilities (roadways, railways, and buildings);(2) scarps in natural ground;(3) presence of surface depressions (sag ponds and ponded water);(4) lineations noted on aerial maps and topographic sheets;(5) structural control of natural streams;(6) vegetation changes;(7) crude oil and natural gas accumulations;(8) electrical spontaneous potential and resistivity logs (correlation of subsurface strata to check for stratigraphic offsets);(9) earth electrical resistivity surveys (indications of anomalies that may represent fault planes);(10) open cell excavations (visual examinations to detect changes in subsoil texturing and/or weathering indicating stratigraphic offsets);(11) changes in elevations of established benchmarks; and(12) references to published geological literature pertaining to area conditions.</content><note type="source"><p>Source Note: The provisions of this §330.555 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scM/s330.557"><num value="330.557">§330.557</num><heading>Seismic Impact Zones</heading><content>For the purposes of this section, a seismic impact zone is defined as an area with a 10% or greater probability that the maximum horizontal acceleration in lithified earth material, expressed as a percentage of the earth's gravitational pull, will exceed 0.10g in 250 years. Maximum horizontal acceleration is defined as the maximum expected horizontal acceleration depicted on a seismic hazard map, with a 90% or greater probability that the acceleration will not be exceeded in 250 years, or the maximum expected horizontal acceleration based on a site-specific seismic risk assessment. Lithified earth material is defined as all rocks, including all naturally occurring and naturally formed aggregates or masses of minerals or small particles of older rock that formed by crystallization of magma or by induration of loose sediments. This term does not include man-made materials, such as fill, concrete, and asphalt, or unconsolidated earth materials, soil, or regolith lying at or near the earth surface. New municipal solid waste landfill units and lateral expansions shall not be located in seismic impact zones, unless the owner or operator demonstrates to the executive director that all containment structures, including liners, leachate collection systems, and surface water control systems, are designed to resist the maximum horizontal acceleration in lithified earth material for the site. The owner or operator shall submit the demonstration with a permit application or a permit amendment application. The demonstration must become part of the operating record once approved.</content><note type="source"><p>Source Note: The provisions of this §330.557 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scM/s330.559"><num value="330.559">§330.559</num><heading>Unstable Areas</heading><content>For the purposes of this section, an unstable area is defined to be a location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of a landfill's structural components responsible for preventing releases from the landfill; unstable areas can include poor foundation conditions, areas susceptible to mass movement, and karst terrains. Owners or operators of new municipal solid waste landfill units, existing landfill units, and lateral expansions located in an unstable area shall demonstrate that engineering measures have been incorporated into the landfill unit's design to ensure that the integrity of the structural components of the landfill unit will not be disrupted. The owner or operator shall submit the demonstration with a permit application or a permit amendment application. The demonstration must become part of the operating record once approved. The owner or operator shall consider the following factors, at a minimum, when determining whether an area is unstable:(1) on-site or local soil conditions that may result in significant differential settling;(2) on-site or local geologic or geomorphologic features; and(3) on-site or local human-made features or events (both surface and subsurface).</content><note type="source"><p>Source Note: The provisions of this §330.559 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scM/s330.561"><num value="330.561">§330.561</num><heading>Coastal Areas</heading><content>A new landfill cell or an areal expansion of an existing landfill cell managing Class 1 industrial solid waste may not be located in areas described in §335.584(b)(3) and (4) of this title (relating to Location Restrictions).</content><note type="source"><p>Source Note: The provisions of this §330.561 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scM/s330.563"><num value="330.563">§330.563</num><heading>Type I and Type IV Landfill Permit Issuance Prohibited</heading><content>(a) The commission may not issue a permit for a Type IV landfill that is subject to the conditions specified in Texas Health and Safety Code, §361.122, Denial of Certain Landfill Permits.(b) The commission may not issue a permit for a Type I or Type IV landfill that is subject to the conditions specified in Texas Health and Safety Code, §361.123, Limitation on Location of Municipal Solid Waste Landfills.</content><note type="source"><p>Source Note: The provisions of this §330.563 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scN"><num value="N">SUBCHAPTER N</num><heading>LANDFILL MINING</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scN/s330.601"><num value="330.601">§330.601</num><heading>General Requirements</heading><content>All landfill mining operations shall comply with all of the following general requirements.(1) Operations on a municipal solid waste landfill unit. Landfill mining activities shall be conducted in such a manner that they do not disrupt landfill operations.(2) Leachate. Leachate found while uncovering buried waste shall be properly disposed of in an authorized facility.</content><note type="source"><p>Source Note: The provisions of this §330.601 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scN/s330.603"><num value="330.603">§330.603</num><heading>Variances</heading><content>(a) In specific cases the executive director may approve a variance from the requirements of this subchapter due to special conditions, if the variance is not contrary to safeguarding the health, welfare, and physical property of the people and to protecting the environment. A variance may not be approved concerning the procedural requirements of this subchapter, including application procedures and the filing of reports, or concerning the provisions of §330.607 of this title (relating to Air Quality Requirements).(b) A request for a variance must be submitted in writing to the executive director. The request may be made in an application for a registration. Any approval of a variance must be in writing from the executive director.</content><note type="source"><p>Source Note: The provisions of this §330.603 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scN/s330.605"><num value="330.605">§330.605</num><heading>Relationship with Operating Landfills</heading><content>Landfill mining facilities considered to be in conjunction with permitted landfill facilities may be located at municipal solid waste permitted facilities. The owner shall prepare and submit an application for a permit modification in accordance with the provisions of §305.70 of this title (relating to Municipal Solid Waste Permit and Registration Modifications).</content><note type="source"><p>Source Note: The provisions of this §330.605 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scN/s330.607"><num value="330.607">§330.607</num><heading>Air Quality Requirements</heading><content>(a) General requirements.(1) Any landfill mining process operation that has existing authority under the Texas Clean Air Act does not have to meet the air quality criteria of this subchapter. In accordance with the Texas Health and Safety Code, Texas Clean Air Act, §382.051, any new landfill mining operation that meets all of the applicable requirements of this subchapter is entitled to an air quality standard permit authorization under this subchapter in lieu of the requirement to obtain an air quality permit under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification).(2) Those operations that would otherwise be required to obtain air quality authorization under Chapter 116 of this title, which cannot satisfy all of the requirements of this subchapter, shall apply for and obtain air quality authorization in accordance with Chapter 116 of this title in addition to any registration required in this subchapter.(3) Any operation authorized under this subchapter that is a new major source or any modification that constitutes a major modification under nonattainment review or prevention of significant deterioration review as amended by the Federal Clean Air Act amendments of 1990, and regulations promulgated thereunder, shall be subject to the requirements of Chapter 116 of this title in addition to any registration required in this subchapter.(4) Operations that do not wish to comply with the requirements of this section are required to apply for and obtain air quality authorization under Chapter 116 of this title. Once a person has applied for and obtained air quality authorization under Chapter 116 of this title, the person is exempt from the air quality requirements of this subchapter.(5) No person may concurrently hold an air quality permit issued under Chapter 116 of this title and an air quality standard permit authorized under this subchapter for landfill mining operations at the same facility.(6) The operator of a landfill mining operation operating under an air quality standard permit shall maintain on file at all times within the operating record of the facility documentation that shows compliance with this section.(b) Air quality standard permit. Landfill mining operations required to obtain authorization under §330.9 of this title (relating to Registration Required) that meet the following requirements are entitled to an air quality standard permit.(1) All permanent on-site roads shall be watered, treated with dust-suppressant chemicals, or paved and cleaned as necessary to achieve maximum control of dust emissions. Vehicular speeds on non-paved roads shall not exceed ten miles per hour. Leachate and gas condensate are prohibited from use as dust-suppressant.(2) Prior to processing any material with a high odor potential, the operator shall insure that there are means to prevent nuisance odors from leaving the facility boundaries.(3) All material shall be conveyed mechanically, or if conveyed pneumatically, the conveying air shall be vented to the atmosphere through a fabric filter(s) having a maximum filtering velocity of 4.0 feet/minute with mechanical cleaning or 7.0 feet/minute with air cleaning.(4) Except for initial start-up and shut-down, all processing equipment not enclosed inside a building shall be equipped with low-velocity fog nozzles spaced to create a continuous fog curtain or the operator shall have portable watering equipment available during the processing operation. These controls shall be utilized as necessary for maximum control of dust when loading vehicles and stockpiling recyclable material, reusable soil, or waste material. Excavation equipment is not considered as processing equipment. Leachate from process water is prohibited from use as dust-suppressant.(5) All conveyors that off-load materials from processing equipment at a point that is not enclosed inside a building shall have available a water or mechanical dust suppression system. These controls shall be utilized as necessary for maximum control of dust when stockpiling material.(6) All activities that could result in increased odor emissions shall be conducted in a manner that does not create nuisance conditions or shall only be conducted inside a building maintained under negative pressure and controlled with a chemical oxidation scrubbing system or bio filter system.(7) Excavated waste material transported from the landfill facility shall be transported in covered trucks to minimize the loss of material.</content><note type="source"><p>Source Note: The provisions of this §330.607 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scN/s330.609"><num value="330.609">§330.609</num><heading>Operational Requirements and Design Criteria</heading><content>The operation of the facility shall comply with all of the following operational requirements. (1) Protection of groundwater. The owner or operator shall install and maintain a liner system constructed in accordance with one of the provisions of subparagraphs (A) or (B) of this paragraph. The liner system shall be provided where receiving, processing, post-processing, screening, and storage areas would be in contact with the ground or in areas where leachate, contaminated materials, contaminated products, or contaminated water is stored or retained. The application shall demonstrate that the facility is designed so as not to contaminate the groundwater and so as to protect the existing groundwater quality from degradation. The owner or operator shall submit a liner quality control plan as specified in §330.339 of this title (relating to Liner Quality Control Plan). For the purposes of this paragraph, protection of the groundwater includes the protection of perched water or shallow surface infiltration. The liner shall be covered with a material designed to withstand normal traffic from the processing operations. The owner or operator of the facility shall demonstrate that any liner system constructed will not undergo uplift from hydrostatic forces during its construction or operational life and that any existing liner system will not undergo uplift from hydrostatic forces during mining operations. Acceptable demonstration methods are listed within §330.337(b)(1) - (4) of this title (relating to Special Liner Design Constraints): (A) a composite liner consisting of two components. The upper component must consist of a minimum 30 mil geomembrane and the lower component must consist of at least a two-foot layer of compacted soil with a hydraulic conductivity of no more than 1 x 10-7 centimeters/second. Geomembrane components consisting of high density polyethylene shall be at least 60 mil thick. The geomembrane shall be installed in direct and uniform contact with the soil component; (B) an alternative design approved by the executive director that is protective of groundwater. When approving a design that complies with this subsection, the executive director shall consider at least the following factors: (i) the hydrogeologic factors of the area; (ii) the climatic factors of the area; and (iii) the volume and physical and chemical characteristics of the waste and leachate; (C) a demonstration that any liner system constructed will not undergo uplift from hydrostatic forces during its construction or operational life and that any existing liner system will not undergo uplift from hydrostatic forces during mining operations. Acceptable demonstration methods are listed within §330.337(b)(1) - (4) of this title; (D) submission of liner construction certifications as required by §330.341 of this title (relating to Soil Liner Evaluation Report and Geomembrane Liner Evaluation Report). (2) Prohibited materials. The operator shall operate the recovery process in a manner that will preclude the entry of hazardous constituents. The operator shall not arrange for waste disposal at an unauthorized facility. (3) Waste slopes. Side slopes of excavations into buried waste for the sake of obtaining material to process shall be no steeper than 34 degrees (per Occupational Safety and Health Administration 1926.652) unless otherwise approved. (4) Authorization required for significant changes. The operator shall obtain written permission from the executive director before changing the processing method or other significant changes to the original registration application. (5) Existing systems. On landfills where leachate collection systems, liners, or gas collection systems exist, care must be taken to not destroy or disrupt these systems if it is planned to retain these features on-site, and these systems must remain operational until they are removed. (6) Soil end-product standards. (A) Particle sizes found in soil to be beneficially used shall not exceed the screen size and the foreign matter criteria contained §330.615, of this title (relating to Final Soil Product Grades and Allowable Uses). (B) The operator shall meet processing testing requirements set forth in §330.613 of this title (relating to Sampling and Analysis Requirements for Final Soil Product), final product grades set forth in §330.615 of this title. (7) Certified operator. The operator shall employ at least one agency-certified landfill operator who shall routinely be available on-site during the hours of operation. (8) Health and safety coordinator. The operator shall employ at least one health and safety coordinator on a full-time basis to be on-site at least 70% of the time during excavation and waste processing. The health and safety coordinator shall be trained in hazardous waste and emergency response operations. (9) Personal protection equipment. The operator shall specify personal protection equipment and its operational characteristics and the equipment must be located on-site. (10) Health and safety plan. Operations must be conducted in accordance with an approved health and safety plan. (11) Covered trucks. Covered trucks must be used for transporting excavated material off-site.</content><note type="source"><p>Source Note: The provisions of this §330.609 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scN/s330.611"><num value="330.611">§330.611</num><heading>Required Reportings</heading><content>The operator shall submit all of the following.(1) Annual report. The operator shall submit annual written reports. These reports shall at a minimum include input and output quantities, a description of the soil end-product distribution, and all results of any required laboratory testing. A copy of the annual report shall be kept on-site for a period of five years.(2) Final soil product testing report. Facilities requiring registration must submit reports on final product testing to the executive director in compliance with §330.613 of this title (relating to Sampling and Analysis Requirements for Final Soil Product) on a quarterly basis.</content><note type="source"><p>Source Note: The provisions of this §330.611 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scN/s330.613"><num value="330.613">§330.613</num><heading>Sampling and Analysis Requirements for Final Soil Product</heading><content>(a) Applicability. Facilities that receive a registration under this subchapter are required to test their final product in accordance with this section.(b) Analytical methods. Facilities that use analytical methods to characterize their final product must use methods such as those described in the following publications.(1) Chemical and physical analysis shall utilize:(A) "Test Methods for the Evaluation of Solid Waste, Physical/Chemical Methods" (SW-846); or(B) "Methods for Chemical Analysis of Water and Wastes" (EPA-600).(2) Analysis of pathogens shall utilize "Standard Methods for the Examination of Water and Wastewater" (Water Pollution Control Federation, 1995).(3) Analysis for salinity and pH shall utilize North Central Regional (NCR) Method 14 for Saturated Media Extract Method contained in "Recommended Test Procedure for Greenhouse Growth Media" NCR Publication Number 221 (Revised), Recommended Chemical Soil Test Procedures, Bulletin Number 49 (Revised), October 1988, pages 34-37.(4) Analysis of total, fixed, and volatile solids shall utilize Method 2540 G (Total, Fixed, and Volatile Solids in Solid and Semi-solid Samples) as described in "Standard Methods for the Examination of Water and Wastewater" (Water Pollution Control Federation, 1995).(c) Sample collection. Sample collection, preservation, and analysis shall assure valid and representative results in accordance with National Environmental Laboratory Accreditation Conference (NELAC) standards.(d) Documentation.(1) Owners or operators of registered facilities shall record and maintain all of the following information regarding their activities of operation for three years after the final product is shipped off-site or upon facility closure:(A) batch numbers identifying the final product sampling batch;(B) the quantities, types, and sources of materials processed and the dates processed;(C) the quantity and final product grade assigned described in §330.615 of this title (relating to Final Soil Product Grades and Allowable Uses);(D) the date of sampling; and(E) all analytical data used to characterize the final product, including laboratory quality assurance/quality control data.(2) The following records shall be maintained on-site permanently or until facility closure:(A) sampling plan and procedures;(B) training and certification records of staff; and(C) final soil product test results.(3) Records shall be available for inspection by executive director representatives during normal business hours.(4) The executive director may at any time request by registered or certified mail that a soil generator submit copies of all documentation listed in paragraph (1) of this subsection for auditing the final soil product grade. Documentation requested under this section shall be submitted within ten working days of receipt of the request.(e) Sampling frequencies. All final soil product must be sampled and assigned a final product grade set forth in §330.615 of this title at a minimum rate of one sample for every 5,000 cubic yard batch of final soil product or annually, whichever is more frequent. Each sample will be a composite of nine grab samples as discussed in subsection (f) of this section.(f) Sampling requirements. The operator shall utilize the sampling methods specified in NELAC standards. The executive director may at any time request that split samples be provided to an agency representative. Specific sampling requirements that must be satisfied include those listed in paragraphs (1) and (2) of this subsection.(1) Sampling from stockpiles. One-third of the grab samples shall be taken from the base of the stockpile (at least 12 inches into the pile at ground level), one-third from the exposed surface, and one-third from a depth of two feet from the exposed surface of the stockpile.(2) Sampling from conveyors. Sampling times shall be selected randomly at frequencies that provide the same number of subsamples per volume of mined soil product as is required in subsection (d) of this section.(A) If samples are taken from a conveyor belt, the belt shall be stopped at that time. Sampling shall be done along the entire width and depth of the belt.(B) If samples are taken as the material falls from the end of a conveyor, the conveyor does not need to be stopped. Free-falling samples need to be taken to minimize the bias created as larger particles segregate or heavier particles sink to the bottom as the belt moves. In order to minimize sampling bias, the sample container shall be moved in the shape of a "D" under the falling product to be sampled. The flat portion of the "D" shall be perpendicular to the beltline. The circular portion of the "D" shall be accomplished to return the sampling container to the starting point in a manner so that no product to be sampled is included.(g) Analytical requirements. The final product subject to the sampling requirements of this section will be tested for all of the following parameters. The executive director may at any time request that additional parameters be tested. These parameters are intended to address public health and environmental protection:(1) total metals, to include:(A) arsenic;(B) cadmium;(C) chromium;(D) copper;(E) lead;(F) mercury;(G) molybdenum;(H) nickel;(I) selenium; and(J) zinc;(2) weight percent of foreign matter, dry weight basis;(3) pH by the saturated media extract method;(4) salinity by the saturated media extract electrical conductivity method;(5) pathogens:(A) salmonella; and(B) fecal coliform;(6) polychlorinated-biphenyls; and(7) asbestos.(h) Data precision and accuracy. Analytical data quality shall be established in accordance with NELAC standards.(i) Reporting requirements.(1) Facilities must report the following information to the executive director on a semiannual basis for each sampling batch of final soil product. Reports must include, but may not be limited to, all of the following information:(A) batch numbers identifying the final soil product sampling batch;(B) the quantities and types of waste materials processed and the dates processed;(C) the quantity of final soil product;(D) the final soil product grade or permit number of the disposal facility receiving the final product if it is not Grade 1 or Grade 2 as established in §330.615 of this title;(E) all analytical results used to characterize the final soil product, including laboratory quality assurance/quality control data and chain-of-custody documentation; and(F) the date of sampling.(2) Reports must be submitted to the executive director within two months after the reporting period ends.</content><note type="source"><p>Source Note: The provisions of this §330.613 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scN/s330.615"><num value="330.615">§330.615</num><heading>Final Soil Product Grades and Allowable Uses</heading><content>(a) Applicability. Facilities that receive a registration under this subchapter are required to test final soil products in accordance with this section.(b) Final soil product testing. The final soil product shall be regularly tested under §330.613 of this title (relating to Sampling and Analysis Requirements for Final Soil Product) to determine the product's grade. Testing of final product and interpretation of test results shall be conducted in accordance with National Environmental Laboratory Accreditation Conference standards.(c) Final product classification and usage. The final soil product shall be classified according to the following classification system.(1) Grade 1 Soil. There are no restrictions on the use of Grade 1 Soil. To be considered Grade 1 Soil, the final product shall meet all of the following criteria:(A) shall contain no foreign matter of a size or shape that can cause human or animal injury;(B) shall not exceed all Maximum Allowable Concentrations for Grade 1 Soil in Table 1 of this subparagraph:Attached Graphic(C) shall not contain foreign matter in quantities that cumulatively are greater than 1.5% dry weight on a four millimeter screen;(D) shall meet the requirements for pathogen reduction for Grade 1 Soil as described in Table 2 of this subparagraph; andAttached Graphic(E) shall meet the requirements for salinity and pH for Grade 1 Soil as described in Table 2 of subparagraph (D) of this paragraph.(2) Grade 2 Soil. To be considered Grade 2 Soil, the final product shall meet all of the following criteria:(A) shall contain no foreign matter of a size or shape that can cause human or animal injury;(B) shall not exceed all Maximum Allowable Concentrations for Grade 2 Soil in Table 1 of paragraph (1)(B) of this subsection;(C) shall not contain foreign matter in quantities that cumulatively are greater than 1.5% dry weight on a four millimeter screen;(D) shall meet the requirements for pathogen reduction for Grade 2 Soil as described in Table 2 of paragraph (1)(D) of this subsection;(E) shall meet the requirements for salinity and pH for Grade 2 Soil as described in Table 2 of paragraph (1)(D) of this subsection; and(F) shall not be used at a residence, recreational area, or licensed child-care facility, or for food chain crops.(3) Waste grade soil. Waste grade soil:(A) exceeds any one of the Maximum Allowable Concentrations for Grade 2 final product in Table 1 of paragraph (1)(B) of this subsection; (B) does not meet the other requirements of Grade 1 or Grade 2 Soil; and(C) shall be appropriately disposed at a permitted municipal solid waste facility.</content><note type="source"><p>Source Note: The provisions of this §330.615 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scO"><num value="O">SUBCHAPTER O</num><heading>REGIONAL AND LOCAL SOLID WASTE MANAGEMENT PLANNING AND FINANCIAL ASSISTANCE GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scO/s330.631"><num value="330.631">§330.631</num><heading>Purpose and Scope</heading><content>(a) Contents. The contents of regional and local solid waste management plans are specified in Texas Health and Safety Code, §363.064.(b) Purpose. The sections in this subchapter are intended for use in the development of a guidance document to assist in the implementation of regional and local solid waste management plans. These sections provide the recommended content of regional and local solid waste management plans and guidance documents, provide for coordination with other programs and public participation, establish criteria for regional and local plan submission and approval, and set out criteria for financial assistance to councils of governments and local governments.(c) Scope.(1) General. A regional or local solid waste management plan shall conform to the requirements of Texas Health and Safety Code, §363.064, and provide the general structure to implement a regional or local program.(2) Planning process. A regional or local solid waste management plan shall be the result of a planning process related to proper management of solid waste in the planning area under consideration. The process shall include identification of concerns and collection and evaluation of data necessary to provide a written public statement of goals and objectives, and a general statement of the actions recommended to accomplish those goals and objectives.(3) Geographic area. A regional solid waste management plan shall consider the entire area within an identified planning region and provide an overview of the solid waste management situation throughout the region. A local solid waste management plan shall consider all of the area within the jurisdiction of one or more local governments, but shall not include an entire planning region.(d) Regional and local solid waste management plans pending upon the effective date of the comprehensive rule revisions to this chapter as adopted in 2006 (2006 Revisions) are subject to the 2006 Revisions.</content><note type="source"><p>Source Note: The provisions of this §330.631 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scO/s330.633"><num value="330.633">§330.633</num><heading>Definitions of Terms and Abbreviations</heading><content>The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.(1) Advisory council--The Municipal Solid Waste Management and Resource Recovery Advisory Council.(2) City--An incorporated city or town in the state.(3) Closed municipal solid waste landfill unit--A discrete area of land or an excavation that has received only municipal solid waste or municipal solid waste combined with other solid wastes, including, but not limited to, construction/demolition waste, commercial solid waste, nonhazardous sludge, very small quantity generator hazardous waste, and industrial solid waste, and the area of land is not a land application unit, surface impoundment, injection well, or waste pile as those terms are defined by 40 Code of Federal Regulations §257.2.(4) Council of governments--A regional planning commission created under Local Government Code, Chapter 391.(5) Governing body--The city council, commissioners court, board of directors, trustees, or similar body charged by law with governing a public agency.(6) Inactive facility--A facility that no longer receives solid waste.(7) Planning fund--The municipal solid waste management planning fund created in the state treasury by the Comprehensive Municipal Solid Waste Management, Resource Recovery, and Conservation Act (Texas Health and Safety Code, Chapter 363).(8) Planning period--The period of time that an adopted solid waste management plan is designed to remain effective.(9) Planning region--A region of the state identified by the governor as an appropriate region for municipal solid waste planning.(10) Private operator--A person, other than a government or governmental subdivision or agency, engaged in some aspect of operating a solid waste management system. The term includes any entity other than a government or governmental subdivision or agency, owned and operated by investment of private capital.(11) Property--Land, structures, interests in land, air rights, water rights, and rights that accompany interests in land, structures, water rights, and air rights and includes easements, rights of way, uses, leases, incorporeal hereditaments, legal and equitable estates, interest, or rights such as terms for years and liens.(12) Public agency--A city, county, district, or authority created and operating under the Texas Constitution, Article III, §52(b)(1) or (2), or Article XVI, §59, or a combination of two or more of these governmental entities acting under an interlocal agreement and having the authority under state laws to own and operate a solid waste management system.(13) Regional or local solid waste management plan--A plan adopted by a council of governments or local government under authority of the Municipal Solid Waste Management, Resource Recovery, and Conservation Act (Texas Health and Safety Code, Chapter 363).(14) Regional Solid Waste Grants Program--The program established to utilize funds dedicated under Texas Health and Safety Code, §361.014, for local and regional solid waste projects and to update and maintain regional solid waste management plans.(15) Resolution--A resolution, order, ordinance, or other action of a governing body.(16) Solid waste management--The systematic control of any or all of the following activities:(A) generation;(B) source separation;(C) collection;(D) handling;(E) storage;(F) transportation;(G) processing;(H) treatment;(I) resource recovery; or(J) disposal of solid waste.(17) Solid waste management system--Any plant, composting process plant, incinerator, sanitary landfill, transfer station, or other works and equipment acquired, installed, or operated for the purpose of collecting, handling, storing, processing, recovering material or energy, or disposing of solid waste and includes sites for these works and equipment.(18) Solid waste resource recovery system--Any real property, buildings, structures, plants, works, facilities, equipment, pipelines, machinery, vehicles, vessels, rolling stock, licenses, or franchises used or useful in connection with the processing of solid waste to extract, recover, reclaim, salvage, reduce, concentrate, or convert to energy or useful matter or resources, whatever their form, including electricity, steam, or other forms of energy, and fertilizer, glass, or other forms of material and resources, from such solid waste, and includes any real property, buildings, structures, plants, works, facilities, pipelines, machinery, vehicles, vessels, rolling stock, licenses, or franchises used or useful in:(A) the transportation, receipt, storage, transfer, and handling of solid waste;(B) the preparation, separation, or processing of solid waste for reuse;(C) the handling and transportation of recovered matter, resources, or energy; and(D) the handling, transportation, and disposal of any nonrecoverable solid waste residue.</content><note type="source"><p>Source Note: The provisions of this §330.633 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scO/s330.635"><num value="330.635">§330.635</num><heading>Regional and Local Solid Waste Management Plan Requirements</heading><content>(a) Regional solid waste management plans. A regional plan identifies the overriding concerns, goals, objectives, and recommended actions for solid waste management over a long-range period for the entire planning region. The details to implement a regional plan are provided in a Regional Solid Waste Management Implementation Plan Guideline that is approved by the executive director. A Regional Solid Waste Management Plan Implementation Guideline is a separate document. The requirements for the guidance document are found in §330.643 of this title (relating to Regional and Local Solid Waste Management Implementation Plan Guideline Requirements).(1) Geographic scope. The geographic scope of the regional planning process shall be the entire planning region designated by the governor.(2) Plan content. A regional plan shall be the result of a planning process related to the proper management of solid waste in the planning region. The process shall include identification of overriding concerns and collection and evaluation of the data necessary to provide a written public statement of goals and objectives and actions recommended to accomplish those goals and objectives. The regional plan shall include:(A) a statement of regional goals and objectives;(B) a description and assessment of efforts to minimize, reuse, and recycle waste, as follows:(i) include a brief description and an assessment of current efforts in the region to minimize municipal solid waste (MSW), including sludge, and efforts to reuse or recycle waste;(ii) establish a recycling rate goal appropriate to the region;(iii) list any recommendations for encouraging and achieving a greater degree of waste minimization and waste reuse or recycling in the geographic area covered by the plan;(iv) include a description and assessment of existing or proposed community programs for the collection of household hazardous waste;(v) recommend composting programs for yard waste and related organic wastes that may include:(I) creation and use of community composting centers;(II) adoption of the "Don't Bag It" program for lawn clippings developed by the Texas Agricultural Extension Service; and(III) development and promotion of education programs on home composting, community composting, and the separation of yard waste for use as mulch; and(vi) include a public education/outreach component in the solid waste program; and(C) a commitment to the following, regarding the management of MSW facilities:(i) encouraging cooperative efforts between local governments in the siting of landfills for the disposal of solid waste;(ii) assessing the need for new waste disposal capacity;(iii) considering the need to transport waste between municipalities, from a municipality to an area in the jurisdiction of a county, or between counties, particularly if a technically suitable site for a landfill does not exist in a particular area;(iv) allowing a local government to justify the need for a landfill in its jurisdiction to dispose of the solid waste generated in the jurisdiction of another local government that does not have a technically suitable site for a landfill in its jurisdiction;(v) completing and maintaining an inventory of MSW landfill units in accordance with Texas Health and Safety Code, §363.064(10). One copy of the inventory shall be provided to the commission and to the chief planning official of each municipality and county in which a unit is located; and(vi) developing a guidance document to review MSW registration and permit applications to determine conformance with the goals and objectives outlined in Volume II: Regional Solid Waste Management Plan Implementation Guidelines as referenced in §330.643 of this title.(b) Local plans. A local plan addresses overriding short and long-range concerns and actions related to solid waste management within the jurisdiction of one or more local governments and may be developed regardless of whether a regional plan has been developed that will affect the local planning area. The details to implement a local plan are provided in a Regional Solid Waste Management Implementation Plan Guideline that is approved by the executive director. A Regional Solid Waste Management Plan Implementation Guideline is a separate document. The requirements for the guidance document are found in §330.643 of this title.(1) Geographic scope. The geographic scope of the local planning process shall be the jurisdiction of one or more local governments with common concerns or needs, but shall not include the entire planning region.(2) Plan content. A local plan shall be the result of a planning process that is related to the proper management of solid waste in the local planning area. The process shall include identification of concerns and collection and evaluation of the data necessary to provide a written public statement of goals and objectives and the actions recommended to accomplish those goals and objectives. The local plan shall include:(A) a statement of local goals and objectives;(B) a description and assessment of efforts to minimize, reuse, and recycle waste, as follows:(i) include a brief description and an assessment of current efforts in the region to minimize MSW, including sludge, and efforts to reuse or recycle waste;(ii) establish a recycling rate goal appropriate to the region;(iii) list any recommendations for encouraging and achieving a greater degree of waste minimization and waste reuse or recycling in the geographic area covered by the plan;(iv) include a description and assessment of existing or proposed community programs for the collection of household hazardous waste;(v) recommend composting programs for yard waste and related organic wastes that may include:(I) creation and use of community composting centers;(II) adoption of the "Don't Bag It" program for lawn clippings developed by the Texas Agricultural Extension Service; and(III) development and promotion of education programs on home composting, community composting, and the separation of yard waste for use as mulch; and(vi) include a public education/outreach component in the solid waste program; and(C) commitment to the following, regarding the management of MSW facilities:(i) encouraging cooperative efforts between local governments in the siting of landfills for the disposal of solid waste;(ii) assessing the need for new waste disposal capacity;(iii) considering the need to transport waste between municipalities, from a municipality to an area in the jurisdiction of a county, or between counties, particularly if a technically suitable site for a landfill does not exist in a particular area; and(iv) allowing a local government to justify the need for a landfill in its jurisdiction to dispose of the solid waste generated in the jurisdiction of another local government that does not have a technically suitable site for a landfill in its jurisdiction.(3) Special considerations or restrictions. The local plan shall not prohibit, in fact or by effect, importation or exportation of waste from one political jurisdiction to another.</content><note type="source"><p>Source Note: The provisions of this §330.635 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scO/s330.637"><num value="330.637">§330.637</num><heading>Coordination with Other Programs</heading><content>(a) All solid waste plans shall be consistent with provisions established by federal, state, and local programs that affect solid waste management and shall consider programs and requirements from:(1) federal jurisdiction--United States Environmental Protection Agency;(2) state jurisdiction:(A) Texas Commission on Environmental Quality;(B) Railroad Commission of Texas; and(C) other state agencies; and(3) substate jurisdiction:(A) regional planning agencies;(B) special districts or authorities;(C) counties; and(D) cities.(b) All solid waste management plans shall consider other programs and responsibilities with the aim of avoiding duplication of effort and gaps in program coverage.</content><note type="source"><p>Source Note: The provisions of this §330.637 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scO/s330.639"><num value="330.639">§330.639</num><heading>Public Participation Requirements for Solid Waste Plans</heading><content>(a) Advisory committee. An advisory committee shall provide input, review, and comment during development of regional and local plans. The local council of governments shall have procedures for the appointment of committee members who represent a broad range of interests, including a representative of the Texas Commission on Environmental Quality, public officials, private operators, citizen groups, and interested individuals.(b) Governmental review. Local governments affected by regional plans shall be given opportunities for review and comment on relevant portions of the plan, including adequate notice of public meetings conducted on the plans. Local plans shall be submitted to appropriate regional planning agencies for review and comment.(c) Public meeting. A public meeting shall be held prior to the adoption of a regional or local plan for the purpose of receiving comment from interested parties.(d) Notice and availability. The governing body of the responsible entity shall make available to interested persons at locations of convenience planning reports and documents. Notice of availability of documents and of public meetings shall be advertised in newspapers of general circulation in the area affected by the plan. The governing body of the responsible entity shall provide proper notice a minimum of 15 days in advance of the meeting. The notice shall include the meeting time, location, and subjects to be discussed.(e) Plan approval. Local and regional solid waste management plans shall be approved by the governing body of the responsible entity before being submitted for approval by the commission.</content><note type="source"><p>Source Note: The provisions of this §330.639 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scO/s330.641"><num value="330.641">§330.641</num><heading>Procedures for Regional and Local Plan Submission, Approval, and Distribution</heading><content>(a) Prior to the submission of a plan, the plan shall be adopted by the council of governments or local government(s) in accordance with applicable administrative procedures. Local governments shall coordinate with the appropriate council of governments and ensure that a local plan is consistent with any regional solid waste management plan in effect for the region encompassing the jurisdiction of the local government, if a regional plan has been approved by the commission.(b) Within 90 days after a regional or local plan has been submitted, the executive director will tentatively determine if the plan conforms to this subchapter. The executive director will communicate this determination to the agency that submitted the plan. If the plan is not in conformance, a notice of deficiency will be provided to the planning agency within 30 days of the tentative disapproval. The executive director has authority to disapprove any plan that has deficiencies. Plans not approved will not be considered by the commission until the executive director determines that the deficiencies have been corrected, unless the council of governments or local government submits a request for appeal to the commission. In order for a plan to be considered under such circumstances, the appeal must be in writing and submitted to the commission within 30 days following the day the council of governments or local government receives notification of tentative plan disapproval by the executive director.(c) If the executive director tentatively determines a regional or local plan meets the requirements of this subchapter and should be approved, the executive director will submit the plan to the commission for adoption in accordance with the Administrative Procedure Act, Texas Government Code, Chapter 2001. If approved, the executive director will notify the planning agency of the commission's approval. The commission's evaluation of a regional or local plan will include whether the plan reflects consideration of the preference of municipal solid waste management methods under Texas Health and Safety Code, §361.022. In the event the plan is not approved, the commission will state the plan's deficiencies and the executive director will immediately notify the planning agency of the commission's decision and the plan's deficiencies. The plan may be resubmitted for approval if the executive director determines that deficiencies have been corrected.(d) If a regional or local solid waste management plan is adopted by the commission, public and private solid waste management activities and state regulatory activities shall conform to the adopted regional or local solid waste management plan. The plan shall only remain in effect during the planning period defined in the plan. Under the procedures and criteria of subsections (g) and (h) of this section, the executive director may grant a variance from an adopted regional or local solid waste management plan.(e) If a portion of a regional or local plan is determined by the executive director to no longer be in compliance with this subchapter, the executive director may request that the council of governments or local government revise the plan. If such a revision is not submitted to the executive director within 180 days, the executive director may ask the commission to withdraw its approval of that portion of the plan.(f) A council of governments or local government may submit revisions or updates to an approved plan that reflect new information or changed conditions. Updates to an approved plan to provide for changes to data and information contained in the plan, which do not substantially change the scope or content of the goals and recommendations of the plan, may be incorporated into an approved plan upon approval by the executive director without further adoption procedures being required. Major revisions and amendments to an approved plan that substantially change the scope or content of the goals and recommendations of the plan shall be considered by the same procedures as the original plan submission and approval.(g) Upon application, the executive director may grant a variance from an adopted regional or local solid waste management plan when:(1) the application of the plan creates an unnecessary hardship;(2) equally safe, effective methods could be used;(3) practical difficulties are encountered in meeting the requirements of a plan; or(4) deviation or exception would not affect substantial compliance with the plan and not threaten health or safety.(h) If the executive director intends to grant a variance from the requirements of a plan, the executive director will offer the opportunity for a public meeting on the matter prior to the final decision. The meeting, if requested, will be advertised and conducted within the area affected by the plan.(i) Upon approval of a regional plan by the commission, the council of governments shall provide a copy of the adopted plan, including the inventory of closed municipal solid waste landfill units, to the chief planning official of each municipality and county within the planning region. The council of governments will include an advisory to the chief planning official that all enclosed structures over a closed landfill must comply with Subchapter T of this chapter (relating to Use of Land Over Closed Municipal Solid Waste Landfills). The council of governments and the chief planning officials shall make the adopted regional plan available for public inspection.</content><note type="source"><p>Source Note: The provisions of this §330.641 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scO/s330.643"><num value="330.643">§330.643</num><heading>Regional and Local Solid Waste Management Implementation Plan Guideline Requirements</heading><content>(a) Regional implementation plans. A regional solid waste management plan provides the overriding structure and commitment to comply with the requirements for regional planning. A regional implementation plan provides the details to implement a regional solid waste management plan, is approved by the commission's executive director, and identifies the concerns, goals, objectives, and recommended actions for solid waste management over a long-range period for the entire planning region.(1) Geographic scope. The geographic scope of the regional planning process shall be the entire planning region designated by the governor. It is not anticipated that the regional plan will present site-specific information. The regional implementation plan shall use the four types of planning units listed in subparagraphs (A) - (D) of this paragraph, as appropriate for the information presented:(A) small geographic areas such as census tracts or city boundaries for the most detailed data collection and manipulation;(B) planning areas to be used for the assessment of concerns and the evaluation of alternatives. These planning areas shall be aggregations of small geographic areas;(C) county boundaries for the summarization and presentation of key information; or(D) the entire planning region.(2) Planning periods. An implementation plan should be developed based on the results of a planning process. The regional planning process shall address solid waste management over a long-range period. Long range is considered to be a period of at least 20 years. The maximum planning period addressed by the plan shall be stated on the plan cover and title page and at other appropriate locations within the body of the plan. The regional implementation plan shall use the four planning periods listed in subparagraphs (A) - (D) of this paragraph as appropriate for the information presented:(A) current and historical information;(B) short-range planning period, one to five years, with specific information presented by year;(C) intermediate planning period, six to ten years, with information in less detail; or(D) long-range planning period, 11 to 20 years or longer, with information in the least detail.(3) Plan content. A regional implementation plan shall be the result of a planning process related to the proper management of solid waste in the planning region. The process shall include identification of concerns and collection and evaluation of the data necessary to provide a written public statement of goals and objectives, and actions recommended to accomplish those goals and objectives. The regional implementation plan shall include:(A) population patterns, commercial and industrial data, and other demographic information necessary to estimate solid waste quantities and characteristics;(B) estimates of current and future solid waste amounts by type;(C) description of current and planned solid waste management activities in the region;(D) description and assessment of the adequacy of existing resource recovery, storage, transportation, treatment, and disposal facilities and practices, and programs for the collection and disposal of household hazardous wastes;(E) assessment of current source reduction and waste minimization efforts, including sludge, and efforts to reuse or recycle waste;(F) identification of additional opportunities for source reduction and waste minimization, and reuse or recycling of waste;(G) recommendations for encouraging and achieving a greater degree of source reduction and waste minimization, and reuse or recycling of waste;(H) identification of public and private management agencies and responsibilities;(I) identification of solid waste management concerns and establishment of priorities for addressing those concerns;(J) planning areas and agencies with common solid waste management concerns that could be addressed through joint action;(K) identification of incentives and barriers for source reduction and waste minimization, and resource recovery, including identification of potential markets;(L) regional goals and objectives, including waste reduction goals consistent with state goals;(M) advantages and disadvantages of alternative actions;(N) the recommended plan of action and associated timetable for achieving regional goals and objectives, including: waste reduction; composting programs for yard wastes and related organic wastes; household hazardous waste collection and disposal programs; public education programs; and the need for new or expanded facilities and practices; and(O) identification of the process that will be used to evaluate whether a proposed municipal solid waste facility application will be in conformance with the regional plan.(4) Special considerations or restrictions. The regional implementation plan shall not prohibit, in fact or by effect, importation or exportation of waste from one political jurisdiction into another.(5) Prior approval. A regional implementation plan and any substantiative changes must be approved in advance of implementation by the Texas Commission on Environmental Quality's executive director.(b) Local plans. A local solid waste management plan provides the overriding structure and commitment to comply with the requirements for local planning. A local implementation plan provides the details to implement a local solid waste management plan, is approved by the commission's executive director, and addresses specific short- and long-range concerns and actions related to solid waste management within the jurisdiction of one or more local governments and may be developed regardless of whether a regional plan has been developed that will affect the local planning area.(1) Geographic scope. The geographic scope of the local planning process shall be the jurisdiction of one or more local governments with common concerns or needs, but shall not include the entire planning region. In certain cases the local plan may present site-specific information. The local implementation plan shall use the three types of planning units listed in subparagraphs (A) - (C) of this paragraph, as appropriate for the information presented:(A) small geographic areas such as census tracts or city boundaries for the most detailed data collection and manipulation. These small areas should be the same as those used in the regional plan;(B) planning areas to be used for the assessment of concerns and the evaluation of alternatives. These planning areas should be aggregations of the small geographic areas; or(C) the entire area encompassed by the local plan.(2) Planning periods. The local planning process shall address specific short and long-range concerns and actions in solid waste management. The maximum planning period addressed by the plan shall be stated on the plan cover and title page and at other appropriate locations within the body of the plan. The local implementation plan should use the planning periods listed in subparagraphs (A) - (D) of this paragraph as appropriate for the information presented:(A) current and historical information;(B) short-range planning period, one to five years, with specific information presented by year;(C) intermediate planning period, six to ten years, with information in less detail; or(D) long-range planning period, 11 to 20 years or longer.(3) Plan content. A local implementation plan shall be the result of a planning process that is related to the proper management of solid waste in the local planning area. The process shall include identification of concerns and collection and evaluation of the data necessary to provide a written public statement of goals and objectives, and the actions recommended to accomplish those goals and objectives. The local implementation plan shall include:(A) population and commercial and industrial data from the regional planning process, supplemented with other local demographic information as necessary;(B) composition, characteristics, and amounts of waste, by type, that affect the local planning area;(C) description of current and planned solid waste management activities in the local planning area;(D) description and assessment of the adequacy of existing resource recovery, storage, transportation, treatment, and disposal facilities and practices, including programs for the collection and disposal of household hazardous wastes;(E) identification of the short and long-range solid waste management concerns within the local planning area;(F) assessment of current source reduction and waste minimization efforts for solid waste, including sludge, and efforts to reuse or recycle waste;(G) identification of additional opportunities for source reduction and waste minimization, and reuse or recycling of waste;(H) recommendations for encouraging and achieving a greater degree of source reduction and waste minimization, and reuse or recycling of waste;(I) local goals and objectives associated with management concerns, including waste reduction goals consistent with state and regional goals;(J) advantages and disadvantages of alternative actions;(K) the recommended plan of action and associated timetable for accomplishing the goals and objectives, including: waste reduction; composting programs for yard wastes and related organic wastes; household hazardous waste collection programs; public education programs; and the need for new or expanded facilities or practices; and(L) identification of the process that will be used to evaluate whether a proposed municipal solid waste facility application will be in conformance with the regional plan.(4) Special considerations or restrictions. The local implementation plan shall not prohibit, in fact or by effect, importation or exportation of waste from one political jurisdiction to another.(5) Prior approval. A local implementation plan and any substantiative changes must be approved in advance of implementation by the executive director.</content><note type="source"><p>Source Note: The provisions of this §330.643 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scO/s330.645"><num value="330.645">§330.645</num><heading>Financial Assistance for Regional and Local Plans</heading><content>(a) Authority. The municipal solid waste management planning fund is established by the Comprehensive Municipal Solid Waste Management, Resource Recovery, and Conservation Act (Texas Health and Safety Code, Chapter 363) as a special fund in the state treasury.(b) Administration of the planning fund.(1) The executive director shall administer the financial assistance program and the planning fund under the direction of the commission.(2) An applicant for financial assistance from the planning fund shall agree to comply with commission rules, and any other requirements adopted by the commission.(3) The executive director shall not authorize release of funds under an application for financial assistance until the applicant has furnished the executive director with a resolution adopted by the governing body of each public agency or planning region that is a party to the application certifying that:(A) the applicant will comply with the provisions of the financial assistance program and the requirements of the commission;(B) the grant will only be used for the purposes for which it was provided;(C) regional or local solid waste management plans, along with their implementation plans, developed with state financial assistance will be adopted by the governing body as its policy; and(D) future municipal solid waste management activities will, to the extent reasonably feasible, conform to the regional or local solid waste management plan.(4) The planning fund shall not be used for the preparation of final design and working drawings, construction, acquisition of land, or an interest in land, or payment for recovered resources.(5) The order of priority to be given to applicants in receiving financial assistance shall be determined by:(A) the need to initiate or improve the solid waste management program within the applicant's jurisdiction;(B) the needs of the state;(C) the financial need of the applicant;(D) the degree that the proposed plan work program will result in improvements that meet the requirements of other applicable state, regional, and local solid waste management plans or activities;(E) a positive consideration for applicants who have completed approved plans while utilizing their own resources; and(F) a positive consideration for applicants who have committed a substantial amount of their own resources for development of an approvable plan at the time that a request is made for state financial assistance.(6) The executive director may approve an application consistent with the provisions of this section when the executive director finds state financial participation is in the public interest and when it is determined that both state and regional or local funding is sufficient to complete the agreed scope of services. The executive director shall approve or disapprove an application for financial assistance within 90 days of its receipt.(c) Applications.(1) Requests for state financial assistance shall be made on forms furnished by the commission and shall include a work program and budget for a defined period in which the tasks described in the work program are to be completed.(2) The only applicant eligible to apply for regional planning financial assistance shall be the council of governments designated as responsible for the planning region for which a plan is considered.(3) The only applicants authorized to apply for local planning financial assistance are local governments or public agencies and designated council of governments. Where the local plan is to cover a geographical area larger than the area of one city, then the application and any resulting contract shall be made by one of the cities, counties, or public agencies that has all or part of its jurisdiction within the area to be considered in the plan, and that is authorized by all public agencies with jurisdiction included in the area considered to act as their agent; or the designated council of governments that has jurisdiction over the geographical area to be considered in the plan.</content><note type="source"><p>Source Note: The provisions of this §330.645 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scO/s330.647"><num value="330.647">§330.647</num><heading>Approved Regional and Local Solid Waste Management Plans</heading><content>(a) Plans approved. The current effective regional solid waste management plan for each region or local solid waste management plan for a local government is the latest plan, including plan amendments, that has been adopted by the commission or approved by the executive director. Copies of approved plans shall be kept on file and available for public review at the Texas Commission on Environmental Quality library. Those plans, including the regional solid waste management plans adopted in subsection (d) of this section, and any adopted amendments to the plans, are incorporated into this subchapter. Updates to an approved regional or local plan that do not require official adoption by the commission, as specified under §330.641(f) of this title (relating to Procedures for Regional and Local Plan Submission, Approval, and Distribution), may be incorporated into an approved plan for informational purposes, as each update is approved by the executive director. Each plan's effectiveness applies only for the geographical area described in the plan and for the period designated in the plan.(b) Conflicting provisions. By adopting a regional or local plan, the commission determined that the plan has been developed according to commission rules and does not conflict with the state plan. If it should later be determined that provisions of an adopted plan do conflict with provisions of the state plan, then provisions of the state plan shall prevail.(c) Agency responsibilities. It shall be the responsibility of the council of governments to coordinate the implementation of regional policies and recommended actions in an approved regional plan and coordinate local planning efforts. It shall be the responsibility of affected local governments to implement the policies and recommended actions of adopted regional and local plans and to maintain policies and activities that do not conflict with provisions in current state, regional, and local solid waste management plans.(d) Approved plans. The following plans, and their effective dates are adopted by reference.(1) Alamo Area Council of Governments (2022-2042)(2) Ark-Tex Council of Governments (2022-2042)(3) Brazos Valley Council of Governments (2022-2042)(4) Capital Area Council of Governments (2022-2042)(5) Central Texas Council of Governments (2022-2042)(6) Coastal Bend Council of Governments (2022-2042)(7) Concho Valley Council of Governments (2022-2042)(8) Deep East Texas Council of Governments (2022-2042)(9) East Texas Council of Governments (2022-2042)(10) Golden Crescent Regional Planning Commission (2022-2042)(11) Heart of Texas Council of Governments (2022-2042)(12) Houston-Galveston Area Council (2022-2042)(13) Lower Rio Grande Valley Development Council (2022-2042)(14) Middle Rio Grande Development Council (2022-2042)(15) Nortex Regional Planning Commission (2022-2042)(16) North Central Texas Council of Governments (2022-2042)(17) Panhandle Regional Planning Commission (2022-2042)(18) Permian Basin Regional Planning Commission (2022-2042)(19) Rio Grande Council of Governments (2022-2042)(20) South East Texas Regional Planning Commission (2022-2042)(21) South Plains Association of Governments (2022-2042)(22) South Texas Development Council (2022-2042)(23) Texoma Council of Governments (2022-2042)(24) West Central Texas Council of Governments (2022-2042)</content><note type="source"><p>Source Note: The provisions of this §330.647 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective August 10, 2023, 48 TexReg 4263.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scO/s330.649"><num value="330.649">§330.649</num><heading>Regional Solid Waste Grants Program</heading><content>(a) Authority. Funds are dedicated under Texas Health and Safety Code, §361.014, for the development and updating of regional and local solid waste management plans, and for implementing regional and local projects consistent with approved regional solid waste management plans. This regional solid waste grants program is separate from the financial assistance program outlined under §330.643 of this title (relating to Regional and Local Solid Waste Management Implementation Plan Guideline Requirements).(b) Administration of regional solid waste grants program. The executive director shall administer the regional solid waste grants program under the direction of the commission.(c) Funding allocation. Funds for local and regional projects under the regional solid waste grants program shall be allocated to municipal solid waste geographic planning regions according to a formula established by the commission that takes into account population, area, solid waste fee generation, and public health needs.(d) Public/private cooperation. A project or service funded under the regional solid waste grant program must promote cooperation between public and private entities and may not be otherwise readily available or create a competitive advantage over a private industry that provides recycling or solid waste services.(e) Pass-through grants. The executive director may establish procedures to make grant funds available to authorized local entities through pass-through grants administered by each council of governments.(f) Applications.(1) Requests for state financial assistance provided directly by the agency shall be made on forms furnished by the executive director.(2) Requests for financial assistance made available through pass-through grants administered by a council of governments shall be made on forms developed jointly by the executive director and the council of governments, and furnished by the council of governments.(g) Application procedures. Applicants for financial assistance from the agency shall follow the procedures set forth in the application instructions and guidelines issued by the executive director. Applicants for pass-through grant assistance from a council of governments shall follow the procedures set forth in the pass-through grant application instructions issued by the council of governments.(h) Grant contracts. Grants shall be provided through contractual agreement between the agency and the grant recipient. If a council of governments provides financial assistance to local entities through a pass-through grant arrangement, the council of governments shall enter into an appropriate contractual agreement with the local grant recipient. The contractual agreement between the council of governments and the local grant recipient shall adhere to all applicable provisions of the main grant contract between the council of governments and the Texas Commission on Environmental Quality.</content><note type="source"><p>Source Note: The provisions of this §330.649 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scP"><num value="P">SUBCHAPTER P</num><heading>FEES AND REPORTING</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scP/s330.671"><num value="330.671">§330.671</num><heading>Purpose and Applicability</heading><content>(a) Purpose.(1) Fees. The commission is mandated by Texas Health and Safety Code, §361.013, to collect a fee for solid waste disposed of within the state, and from transporters of solid waste who are required to register with the state. Persons desiring to transport or deliver waste in enclosed containers or enclosed vehicles to a Type IV municipal solid waste management facility are subject to special route permit application and maintenance fees set forth and described in §330.103 of this title (relating to Collection and Transportation Requirements). The fee amount may be raised or lowered in accordance with spending levels authorized by the legislature.(2) Industrial solid waste and hazardous waste fees. The assessment of fees for the generation, treatment, storage, or disposal of industrial solid waste or hazardous waste is governed by regulations contained in Chapter 335, Subchapter J of this title (relating to Hazardous Waste Generation, Facility and Disposal Fee System).(3) Reports. The commission requires reports in order to track the amount of waste being stored, treated, processed, or disposed of in the state, to track the amount of processing and disposal capacity and reserve (future) disposal capacity, and to enable equitable assessment and collection of fees.(b) Applicability.(1) Fees. Each operator of a municipal solid waste disposal facility or process for disposal is required to pay a fee to the agency based upon the amount of waste received for disposal. For the purpose of this subchapter, "waste received for disposal" means the total amount of the waste (measured in tons or cubic yards, or determined by the population equivalent method specified in §330.675(a)(3) of this title (relating to Reports) received by a disposal facility at the gate, excluding only those wastes that are recycled or exempted from payment of fees under this subchapter or by law. For the purpose of these sections, landfills, waste incinerators, and sites used for land treatment or disposal of wastes, sites used for land application of sludge or similar waste for beneficial use, composting facilities, and other similar facilities or activities are determined to be disposal facilities or processes. Recycling operations or facilities that process waste for recycling are not considered disposal facilities. Source-separated material processed at a composting or mulch processing facility, including a composting or mulch processing facility located at a permitted landfill, is exempt from the fee requirements set forth and described in these sections. The agency will credit any fee payment due under this subchapter for any material received and processed to compost or mulch product at the facility. Any compost or mulch product that is produced at a composting or mulch processing facility that is used in the operation of the facility or is disposed of in a landfill or used as landfill daily cover is not exempt from the fee.(2) Industrial solid waste and hazardous waste fees. A fee for disposal of an industrial solid waste or hazardous waste in a municipal solid waste disposal facility shall be assessed at the rates prescribed under the authority of Chapter 335, Subchapter J of this title. If no fee under Chapter 335, Subchapter J of this title, is applicable to the disposal of an industrial solid waste or hazardous waste, then such waste shall be assessed a fee under this chapter for the disposal of solid waste in a municipal solid waste facility.(3) Reports. All registered or permitted facility operators are required to submit reports to the executive director covering the types and amounts of waste processed or disposed of at the facility or process location; other pertinent information necessary to track the amount of waste generated and disposed of, recovered, or recycled; and the amount of processing or disposal capacity of facilities. The information requested on forms provided by the executive director shall not be considered confidential or classified information unless specifically authorized by law, and refusal to submit the form complete with accurate information by the applicable deadline shall be considered as a violation of this section and subject to appropriate enforcement action and penalty.(4) Interest penalty. Owners or operators of a facility failing to make payment of the fees imposed under this subchapter when due shall be assessed penalties and interest in accordance with Chapter 12 of this title (relating to Payment of Fees).</content><note type="source"><p>Source Note: The provisions of this §330.671 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective July 31, 2014, 39 TexReg 5796.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scP/s330.673"><num value="330.673">§330.673</num><heading>Fees</heading><content>(a) Landfilling. Each operator of a facility in Texas that disposes of municipal solid waste (MSW) by means of landfilling, including landfilling of incinerator ash, is required to pay a fee to the agency for all waste received for disposal. The fee rate for waste disposed of by landfilling is dependent upon the reporting units used.(1) Fee rates. For purposes of this subsection, uncompacted waste means any waste that is not a liquid or a sludge, has not been mechanically compacted by a collection vehicle, has not been driven over by heavy equipment prior to collection, or has not been compacted subsequent or prior to collection by any type of mechanical device other than small, in-house, compactor devices owned and/or operated by the generator of the waste. Compacted waste is a liquid, sludge, or similar waste or any waste that has been reduced in volume by a collection vehicle or by any other means including, but not limited to, dewatering, composting, incineration, and similar processes.(A) Tons. For waste reported in tons, the fee rate is $0.94 per ton received for disposal.(B) Cubic yards (compacted). For waste reported in compacted cubic yards, the fee rate is $0.30 per cubic yard received for disposal.(C) Cubic yards (uncompacted). For waste reported in uncompacted cubic yards, the fee rate is $0.19 per cubic yard received for disposal.(2) Measurement options. The volume or weight reported on the quarterly solid waste summary report must be consistent with the volume or weight of the waste received for disposal, as defined in §330.671(b)(1) of this title (relating to Purpose and Applicability). The volume or weight of the waste received for disposal shall be determined prior to disposal or processing of the waste.(A) The recommended method for measuring and reporting waste received at the gate is in short tons. The facility operator must accurately measure and report the number of cubic yards or tons of waste received at the gate.(i) The fee for waste reported in short tons will be calculated by the executive director at an amount equal to $0.94 per ton.(ii) The fee for compacted waste reported in cubic yards will be calculated by the executive director at an amount equal to $0.30 per cubic yard.(iii) The fee for uncompacted waste reported in cubic yards will be calculated by the executive director at an amount equal to $0.19 per cubic yard.(B) If a landfill operator chooses to report the amount of waste received utilizing the population equivalent method authorized in §330.675(a)(3) of this title (relating to Reports), the fee for such waste received shall be calculated by the executive director at an amount equal to $0.94 per ton.(3) Fee calculation. The fee shall be calculated by the executive director using information obtained from the quarterly solid waste summary report. The total cubic yards or tonnage reported to the executive director in the quarterly solid waste summary report shall be derived from gate tickets (weight or volume) or invoices, except in the case of operators who are authorized to report utilizing the population equivalent method in §330.675(a)(3) of this title, and records of recycled materials or any other information deemed relevant by the executive director. A billing statement will be generated quarterly by the executive director and forwarded to the applicable permittee/registrant or a designated representative.(4) Fee due date. All solid waste fees shall be due within 30 days of the date the payment is requested.(5) Method of payment. The required fee shall be submitted in the form of a check or money order made payable to the Texas Commission on Environmental Quality and delivered or mailed to the return address designated by the executive director in the billing statement distributed quarterly.(6) Penalties. Failure of the landfill operator to submit the required fee payment by the due date shall be sufficient cause for the commission to revoke the landfill permit and authorization to process or dispose of waste. The commission may assess interest penalties for late payment of fees and may also assess penalties (fines) in accordance with Texas Water Code, §7.051 (relating to Administrative Penalty), or take any other action authorized by law to secure compliance.(7) Exemptions.(A) A fee will not be charged on solid waste resulting from a public entity's effort to protect the public health and safety of the community from the effects of a natural or man-made disaster or from structures that have been contributing to drug trafficking or other crimes if the disposal facility at which that solid waste is offered for disposal has donated to a municipality, county, or other political subdivision the cost of disposing of that waste.(B) A fee only for the amount determined necessary to reimburse MSW regulatory activities will be charged federal facilities. Prior to the fourth MSW billing quarter following the close of each regular session of the Texas State Legislature, the Texas Commission on Environmental Quality's chief financial officer will determine the percentage of the MSW disposal fee that represents reimbursement for regulatory implementation of the state MSW program and the percentage that represents a state tax. The percentage determination shall be reported to the MSW Permits Section for use in determining fees owed by federal facilities. The MSW Permits Section shall grant federal facilities a credit on their MSW fees equal to the percentage of the fee determined to be a state tax. The credit shall be applied to each billing quarter beginning with the first billing quarter of the state fiscal year.(b) Incinerators and processes for disposal. Each operator of a facility that disposes of or processes MSW for disposal by means other than landfilling is required to pay a fee to the agency for all waste received for processing or disposal. Facilities and/or processes included in this category include, but are not limited to, incineration; composting; application of sludge, septic tank waste, or shredded waste to the land; and similar facilities or processes. Not included as a process for disposal is land application of waste that has already been properly composted in one of the facilities named.(1) Fee rates. For purposes of this subsection, uncompacted waste means any waste that is not a liquid or a sludge, has not been mechanically compacted by a collection vehicle, has not been driven over by heavy equipment prior to collection, or has not been compacted subsequent or prior to collection by any type of mechanical device other than small, in-house, compactor devices owned and/or operated by the generator of the waste. Compacted waste is a liquid, sludge, or similar waste or any waste that has been reduced in volume by a collection vehicle or by any other means including, but not limited to, dewatering, composting, incineration, and similar processes.(A) Tons. For waste reported in tons, the fee rate is $0.47 per ton received.(B) Cubic yards (compacted). For waste reported in compacted cubic yards, the fee rate is $0.15 per cubic yard received.(C) Cubic yards (uncompacted). For waste reported in uncompacted cubic yards, the fee rate is $0.09 and one-half cent per cubic yard received.(2) Measurement options. The volume or weight reported on the quarterly solid waste summary report must be consistent with the volume or weight of the waste received for disposal, as defined in §330.671(b)(1) of this title. The volume or weight of the waste received for disposal shall be determined prior to disposal or processing of the waste.(A) The recommended method for measuring and reporting waste received at the gate is in short tons. The operator must accurately measure and report the number of cubic yards or tons of waste received.(i) The fee for waste reported in short tons will be calculated by the executive director at an amount equal to $0.47 per ton.(ii) The fee for compacted waste reported in cubic yards will be calculated by the executive director at an amount equal to $0.15 per cubic yard.(iii) The fee for uncompacted waste reported in cubic yards will be calculated by the executive director at an amount equal to $0.09 and one-half cent per cubic yard.(B) If a facility operator chooses to report the amount of waste received utilizing the population equivalent method authorized in §330.675(a)(3) of this title, the fee shall be calculated by the executive director at an amount equal to $0.47 per ton.(3) Fee calculation. The fee shall be calculated by the executive director using information obtained from the quarterly solid waste summary report. The total cubic yards or tonnage reported to the executive director in the quarterly solid waste summary report shall be derived from gate tickets (weight or volume) or invoices, except in the case of operators who are authorized to report utilizing the population equivalent method in §330.675(a)(3) of this title, and records of recycled materials or any other information deemed relevant by the executive director. A billing statement will be generated quarterly by the executive director and forwarded to the applicable permittee/registrant or a designated representative.(4) Fee due date. All solid waste fees shall be due within 30 days of the date the payment is requested.(5) Method of payment. The required fee shall be submitted in the form of a check or money order made payable to the Texas Commission on Environmental Quality and delivered or mailed to the return address designated by the executive director in the billing statement distributed quarterly.(6) Penalties. Failure of the facility or process operator to submit the required fee payment by the due date shall be sufficient cause for the commission to revoke the permit or registration and authorization to process or dispose of waste. The commission may assess interest penalties for late payment of fees and may also assess penalties (fines) in accordance with Texas Water Code, §7.051, or take any other action authorized by law to secure compliance.(7) Exemptions. A fee will not be charged on solid waste resulting from a public entity's effort to protect the public health and safety of the community from the effects of a natural or man-made disaster or from structures that have been contributing to drug trafficking or other crimes if the disposal facility at which that solid waste is offered for disposal has donated to a municipality, county, or other political subdivision the cost of disposing of that waste.(c) Facilities and processes not for disposal. Facilities or processes not included in the scope of subsections (a) and (b) of this section shall be considered as "facilities and processes not for disposal." Facilities and processes not for disposal are those facilities that are permitted or registered independently from landfill, incinerator, or disposal processing operations and include, but are not limited to, such facilities or processes as transfer stations, shredders, balers, methane extractors, etc. Facilities and processes not for disposal are not required to pay a fee to the agency, but are required to submit reports.</content><note type="source"><p>Source Note: The provisions of this §330.673 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective July 31, 2014, 39 TexReg 5796.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scP/s330.675"><num value="330.675">§330.675</num><heading>Reports</heading><content>(a) Disposal facilities and processes.(1) Municipal Solid Waste Fee Report frequency, report form, and report information.(A) Report frequency. Quarterly, each disposal facility or process operator shall report to the executive director the information requested on the report form for the appropriate reporting period including the amount of source-separated material processed to compost or mulch product. Annually, the operator shall submit a summary of the information to show the yearly totals and year-end status of the facility or process, as requested on the report form, for the appropriate reporting period. An operator shall file a separate report for each facility that has a unique permit, permit application number, or registration number.(B) Report form. The report shall be on a form furnished by the executive director or reproduced from a form furnished by the executive director or by an electronic form or format furnished by the executive director. Forms reproduced by the facility operator are not recommended because each report form for each reporting period will have two unique numbers on each form. One number will specifically identify the facility for which the report is made; the other number will specifically identify the individual form. To use the wrong form, or the form intended for a different reporting period, will automatically make the data incorrect for that facility report. The operator will receive one form from the executive director for each facility or process prior to the due date. The operator must assure that the data entered on the form are applicable for the particular facility and period for which the data are reported.(C) Report information. In addition to a statement of the amount of waste received for processing or disposal, the report shall contain other information requested on the form, including the facility operator's name, address, and phone number; the permit number, permit application number, or registration number; the facility type, size, and capacity; and other information the executive director may request.(2) Reporting units. The amount of waste received for processing or disposal shall be reported in short tons (2,000 pounds) or in cubic yards as received (compacted or uncompacted) at the gate. If accounting of the waste is recorded in cubic yards, then separate accounting must be made for waste that comes to the facility in open vehicles or without compaction, and waste that comes to the facility in compactor vehicles. If scales are not utilized and accounting of the waste received is in cubic yards, gallons, or drums then those volumetric units may be converted to tons for reporting purposes, using the conversion factors set forth in subparagraphs (A) and (B) of this paragraph.(A) General weight/volume conversion factors for various types of waste shall be as follows:(i) one ton = 2,000 pounds;(ii) one gallon = 7.5 pounds (grease trap waste);(iii) one gallon = 8.5 pounds (wastewater treatment plant sludge or septage);(iv) one gallon = 9.0 pounds (grit trap waste); and(v) one drum = 55 gallons.(B) Conversion factors to be used for waste transport vehicles relative to waste volume and weight in vehicles shall be as follows:(i) one cubic yard = 400 pounds (no compaction);(ii) one cubic yard = 666.66 pounds (medium compaction); and(iii) one cubic yard = 800 pounds (heavy compaction).(3) Use of population equivalent. In determining the amount of waste deposited in a landfill serving less than 5,000 people or the amount of waste processed for disposal at a processing facility serving less than 5,000 people, the owner/operator may use the number of tons calculated or derived from the population served by the facility in lieu of maintaining records of the waste deposited at the facility. The amount of waste shall be calculated on the basis of one ton per person per year. The report shall document the population served by the facility and reflect any changes since the previous report.(4) Reporting units for beneficial land use application sites. Wastewater treatment plant sludge and septage received for disposal at registered beneficial use land application sites in vacuum or closed tank trucks may be reported in dry weight equivalent units, provided the site operator either produces satisfactory documentation indicating the percent solids present in the received waste materials or uses the dry weight/volume conversion factors set forth in subparagraphs (A) and (B) of this paragraph:(A) one gallon = 0.5 pounds (sludge - dry weight equivalent); and(B) one gallon = 0.3 pounds (septage - dry weight equivalent).(5) Report due date. The required quarterly solid waste summary report shall be submitted to the executive director not later than 20 days following the end of the fiscal quarter for which the report is applicable. The fiscal year begins on September 1, and concludes on August 31.(6) Method of submission. The required report shall be delivered or mailed to the agency to the return address designated by the executive director in the billing statement distributed quarterly.(7) Penalties. Failure of the facility or process operator to submit the required report by the due date shall be sufficient cause for the commission to revoke the permit or registration and authorization to process or dispose of waste. The commission may assess interest penalties for late payment of fees and may also assess penalties (fines) in accordance with Texas Water Code, §7.051 (relating to Administrative Penalty) or take any other action authorized by law to secure compliance.(b) Facilities and processes not for disposal. Facilities and processes not for disposal (as defined in §330.673(c) of this title (relating to Fees)) are subject to reporting requirements, but are not required to pay a fee.(1) Municipal Solid Waste Annual Summary Report frequency, report form, and report information.(A) Report frequency. Annually, each facility or process operator shall report to the executive director the information requested on the report form for the appropriate reporting period. An operator shall file a separate report for each facility that has a unique permit, permit application number, or registration number.(B) Report form. The form of the report shall be in accordance with subsection (a)(1)(B) of this section.(C) Report information. The information in the report shall be in accordance with subsection (a)(1)(C) of this section.(2) Reporting units. The units used in reporting shall be in accordance with subsection (a)(2) of this section.(3) Use of population equivalent. The use of the population equivalent method of reporting waste received or processed shall be in accordance with subsection (a)(3) of this section.(4) Report due date. The required annual report shall be submitted to the executive director not later than 45 days following the calendar year for which the report is applicable.(5) Method of submission. The required report shall be delivered or mailed to the agency to the return address designated by the executive director in the billing statement distributed quarterly.(6) Penalties. Failure of the facility or process operator to submit the required report by the due date shall be sufficient cause for the commission to revoke the permit or registration and authorization to process or dispose of waste. The commission may assess interest penalties for late payment of fees and may also assess penalties (fines) in accordance with Texas Water Code, §7.051 or take any other action authorized by law to secure compliance.</content><note type="source"><p>Source Note: The provisions of this §330.675 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective July 31, 2014, 39 TexReg 5796.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scP/s330.677"><num value="330.677">§330.677</num><heading>Composting Refund</heading><content>(a) Any compost or product for composting that is not used as compost and is deposited in a landfill or used as daily landfill cover is not exempt from fees due under §330.673 of this title (relating to Fees). In order to be eligible to receive a refund authorized by this subsection, the operator of the facility must submit to the executive director a composting plan and receive written approval of the plan by the executive director.(b) The operator of a public or privately owned municipal solid waste facility is entitled to a refund of up to 15% of the solid waste fees collected under §330.673 of this title if:(1) the refunds are used to lease or purchase and operate equipment necessary to compost yard waste or to contract for the on-site composting of yard waste;(2) composting operations are actually performed; and(3) the finished compost material produced by the facility is returned to beneficial reuse.(c) The amount of refund authorized by this subsection shall increase to up to 20% of the total solid waste fees collected by the facility if, in addition to composting the yard waste, the operator of the facility voluntarily bans the disposal of yard waste at the facility.(d) The total amount of the refund authorized by this subsection shall be limited to the amount identified in the facility's composting plan.(e) The composting refund is collectable beginning on the date that the first composting operations occur in accordance with the approved composting plan. The executive director will normally allow the composting refund to be applied as a credit against fees required to be collected under §330.673 of this title. The operator is entitled to a refund of a percentage of the fees collected by the facility on or after the date that the executive director approves the composting plan.(f) The executive director shall conduct an annual assessment of the composting operation to ensure composting activities are conducted in accordance with the approved composting plan. Failure to comply with the composting plan may result in the suspension of the composting refund.</content><note type="source"><p>Source Note: The provisions of this §330.677 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scS"><num value="S">SUBCHAPTER S</num><heading>ASSISTANCE GRANTS AND CONTRACTS</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scS/s330.890"><num value="330.890">§330.890</num><heading>General Program Information</heading><content>(a) Objective. The objectives of the financial assistance programs described in this subchapter are to promote good municipal solid waste management practices within the State of Texas. Through the procedures contained in this subchapter, the commission intends that funding be provided for applied research, demonstration and pilot projects, feasibility studies, technical assistance, public education and awareness, information exchange, and local government programs designed to enhance solid waste management and litter abatement enforcement. (b) Scope. The sections contained in this subchapter identify various kinds of solid waste management assistance grants available, in addition to those described in Subchapter O of this chapter (relating to Regional and Local Solid Waste Management Planning and Financial Assistance General Provisions); describe procedures utilized by the commission in advertising and awarding such grants; and contain pertinent application instructions for prospective recipients. (c) Definitions of terms and abbreviations. The following words, terms, and abbreviations, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise. (1) Local government--A county, incorporated city or town, or any political subdivision of the state that has jurisdiction over two or more counties or parts of two or more counties and has been granted the power by the legislature to regulate solid waste handling or disposal practices or activities within its jurisdiction. (2) Public agency--A city, county, or a district or authority created and operating under the Texas Constitution, Article III, §52(b)(1) or (2), or Article XVI, §59, or a combination of two or more of these governmental entities acting under an interlocal agreement and having authority under state law to own and operate a solid waste management system. (3) Research--Studious inquiry or examination and usually critical and exhaustive investigation or experimentation having for its aim the discovery of new facts and their correct interpretation; the revision of accepted conclusions, theories, or laws in the light of newly discovered facts; or the practical application of such new or revised conclusions. (4) State fiscal year--A period of time that begins September 1 of a given year and ends August 31 of the following year. (5) UGCMS--Uniform Grant and Contract Management Standards, consisting of a set of rules set forth in 1 TAC Part 1, Chapter 5, Subchapter A, promulgated under Texas Government Code, Chapter 783, Uniform Grant and Contract Management Act. (d) Authority. The commission's authority to conduct and manage the activities described in this subchapter is derived from Texas Health and Safety Code, Solid Waste Disposal Act, Chapter 361; Comprehensive Municipal Solid Waste Management, Resource Recovery, and Conservation Act, Chapter 363; and Texas Litter Abatement Act, Chapter 365. (e) Eligible recipients. Entities eligible to apply for the various assistance grants described in this subchapter, except as provided for under §330.895 of this title (relating to Information Exchange Program) and §330.897 of this title (relating to Supplemental Funding for the Enforcement of the Solid Waste Disposal Act and the Litter Abatement Act) may include: (1) local governments; (2) public agencies; (3) schools and universities; (4) research institutions; (5) scientists, professors, and researchers associated with accredited universities or research institutions; (6) environmental protection groups and/or nonprofit service organizations having a record of active involvement in municipal solid waste management or public health enhancement activities within the State of Texas; and (7) in certain instances, businesses and/or corporations having a record of active involvement in municipal solid waste management. (f) Public notice. The agency's notice of funding availability for the grant programs identified in this subchapter, except as provided for under §330.895 of this title shall be in the form of published requests for proposals (RFP) in the Texas Register. The executive director may also advertise funding availability and specific RFPs by other means. The published RFPs will outline the work to be performed, establish appropriate deadlines, identify recipient qualifications, matching-fund requirements, and funding limitations. Submitted proposals shall be reviewed only if they satisfy the criteria as set forth in the appropriate RFP. (g) Application forms and submittal procedures. Applications shall be submitted on forms provided by the executive director. All forms submitted for funding consideration, except as provided for under §330.895 of this title, must be in response to an RFP issued by the executive director. Unless indicated otherwise on the forms or accompanying instruction sheets, applicants shall submit five copies of the appropriate application forms and all supplementary application materials. (h) Preapplication conferences. Except in those cases where the published RFP does not specify or recommend participation in a preapplication conference, prospective applicants shall, prior to submitting the required application forms, contact the staff of the executive director and either make arrangements to participate in a preapplication conference, or explain why it is impractical to attend such a conference. While participation in an RFP recommended preapplication conference is not mandatory, such participation is strongly recommended. Such conferences provide a means to: (1) determine eligibility of potential recipient organizations; (2) confirm the availability of funds; (3) examine proposed activities to ensure conformance, where applicable, with regional and/or local solid waste management plans; (4) examine proposed activities to ensure conformance with current RFPs issued by the executive director; (5) identify topics or projects that the commission views as a priority when applicable; (6) determine any special procedures likely to be required with respect to a particular type of grant; and (7) otherwise assist and advise potential recipients. (i) Review and selection procedures. (1) Except as provided in paragraph (2) of this subsection, all applications for solid waste management assistance grants to be awarded under this subchapter shall be processed as follows. (A) Within 45 days of receipt, all original, corrected, and revised applications shall be reviewed for completeness and compliance with the requirements of this subchapter, and the applicant shall be advised in writing concerning any determined deficiencies. (B) Correspondence advising applicants of deficiencies in submitted applications may establish deadlines for the receipt of a complete and compliant application. Failure to comply with such deadlines may result in the executive director rejecting the application. (C) Once an application is determined to be complete and in compliance with all application submittal requirements, the applicant shall be notified in writing and advised concerning the time schedule that the executive director intends to follow in reaching a final decision regarding issuance or denial of an assistance grant. (2) Applications for funding of information exchange activities, as described in §330.895 of this title, shall be evaluated within 30 days of receipt and the applicant advised either by telephone or in writing as to the status of the request. A final decision concerning all such requests shall be transmitted to the applicant by letter. (3) Applicants denied an award shall be notified of the denial and the reason(s) for the denial in writing. (4) The commission shall not be liable for any expense incurred by an applicant if funding for the proposed project is denied. (j) Selection criteria. Criteria utilized in the selection process for solid waste management assistance grants may include, but are not limited to, the: (1) availability of state funds and, where required by the RFP, sources of matching funds; (2) degree to which the proposal is responsive to the purpose and funding criteria identified in the appropriate RFP issued by the executive director; (3) compliance or compatibility with approved or potential regional and local solid waste management plans; (4) qualifications and experience of project staff members; (5) quality of previous work submitted to the executive director by the applicant, if any; (6) reasonableness of the proposed budget and time schedules; (7) project organization and management, including project monitoring procedures; (8) technical, economic, and environmental merit of the proposal; and (9) any other information as may be required for the specific project. (k) UGCMS requirements. Applications must comply with all requirements set forth in Texas Government Code, Chapter 783, Uniform Grant and Contract Management Act and the rules promulgated in 1 TAC Part 1, Chapter 5, Subchapter A. (l) Contracts. Except for recipients of funds awarded under §330.895 of this title, all approved grantees will enter into a contract with the agency prior to being allocated funds. Such contracts shall: (1) contain provisions requiring the grantee to comply with the requirements in this chapter; (2) require, where appropriate, that work performed by the grantee be in accordance with the applicable regional or local solid waste management plan that has been adopted in accordance with Subchapter O of this chapter; (3) require that the grantee comply with the fiscal requirements relating to the administering, accounting, auditing, and fund-recovering procedures as set forth by the Uniform Grant and Contract Management Act; (4) require that program and fiscal deficiencies documented in monitoring or other reports be cleared in accordance with provisions contained in UGCMS, within specified time frames; and (5) be concurrent with the state fiscal year or biennium. (m) Solid waste disposal fees. To be eligible for any funding described in this subchapter, eligible recipients must not be delinquent in solid waste disposal fees owed the agency. (n) Time extensions. The commission may, for good cause, grant an extension of time for the completion of work required under a contract. Recipients who have determined that an extension of time is necessary to satisfactorily complete a contracted project shall make a written request to the commission no later than 60 days before the contract expiration date. The request must indicate the amount of additional time needed and the reason such extension of time is required. (o) Grant programs suggestions. The commission encourages the public to submit for consideration ideas and suggestions for municipal solid waste topics that warrant funding under the grant programs identified in this subchapter. In addition to the assistance grants and contracts programs identified in this subchapter, the executive director may periodically make available for limited terms additional types or forms of assistance grants. Individuals or organizations with suggestions for grant topics and/or additional assistance grants and contracts programs are encouraged to identify them in writing to the executive director.</content><note type="source"><p>Source Note: The provisions of this §330.890 adopted to be effective April 15, 1991, 16 TexReg 1822; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective September 5, 1999, 24 TexReg 6779; amended to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scS/s330.891"><num value="330.891">§330.891</num><heading>Applied Research Grant Program</heading><content>(a) Program description. The goal of applied research grants awarded under this section is to provide financial assistance grants to encourage and stimulate research and study in the field of municipal solid waste (MSW) management. The commission intends to encourage research as it recognizes the important position it holds in the creation and evolution of improved solid waste management technology.(b) Eligible projects. Eligible projects shall address the MSW management issues and concerns of the residents of Texas and have foreseeable practical application within the State of Texas.</content><note type="source"><p>Source Note: The provisions of this §330.891 adopted to be effective April 15, 1991, 16 TexReg 1822; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective September 5, 1999, 24 TexReg 6779; amended to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scS/s330.892"><num value="330.892">§330.892</num><heading>Demonstration Grant Program</heading><content>(a) Program description. The intent of demonstration grants awarded under this section shall be to subsidize and support the implementation or operation of municipal solid waste demonstration projects. The purpose of supported demonstration projects shall be to illustrate, by example, the economic value and operational merit of a particular operation, system, or technology. This will in turn reduce the uncertainty inherent with investing in emerging, innovative, or alternative technologies, thereby indirectly encouraging larger scale application, participation, and/or acceptance by the public.(b) Eligible projects. Eligible projects shall be those that address any issue of municipal solid waste management. Projects must have potential application generally throughout the State of Texas, and not be so operationally unique as to only be applicable at the location where demonstrated. Priority will be given to projects that are judged as having a significant potential for implementation and/or economic viability. Grants may be used for the purchase, installation, operation, or maintenance of an approved demonstration project.(c) Participation frequency. Recipients shall be limited to one demonstration grant, issued under this section, during any specific contract performance period, unless specifically otherwise authorized in the published request for proposal.</content><note type="source"><p>Source Note: The provisions of this §330.892 adopted to be effective April 15, 1991, 16 TexReg 1822; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scS/s330.893"><num value="330.893">§330.893</num><heading>Feasibility Study Grant Program</heading><content>(a) Program description. The intent of demonstration grants awarded under this section shall be to subsidize and support the implementation or operation of municipal solid waste demonstration projects. The purpose of supported demonstration projects shall be to illustrate, by example, the economic value and operational merit of a particular operation, system, or technology. This will in turn reduce the uncertainty inherent with investing in emerging, innovative, or alternative technologies, thereby indirectly encouraging larger scale application, participation, and/or acceptance by the public.(b) Eligible projects. Potential study topics include, but are not limited to, the review of various waste management options and their practicality with regard to:(1) waste minimization;(2) recycling and reuse;(3) composting;(4) transfer stations;(5) landfill - gas recovery, treatment, and/or sale;(6) landfill - leachate recovery and treatment;(7) collection and handling; or(8) landfill operations.(c) Participation frequency. Recipients shall be limited to one feasibility study grant, issued under this section, during any specific contract performance period, unless specifically otherwise authorized in the published request for proposal.</content><note type="source"><p>Source Note: The provisions of this §330.893 adopted to be effective April 15, 1991, 16 TexReg 1822; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective September 5, 1999, 24 TexReg 6779; amended to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scS/s330.894"><num value="330.894">§330.894</num><heading>Technical Assistance Grant Program</heading><content>(a) Program description. Technical assistance grants awarded under this section shall provide supplementary funding to aid recipients in achieving self-identified municipal solid waste management goals that will serve to benefit public health; safeguard the environment; save or recover valuable resources; minimize solid waste generation; improve facility operating efficiency; or reduce nuisances. This assistance may include, but is not limited to, engineering, scientific, financial, or mechanical evaluations and analyses and/or the purchasing of materials and supplies that are necessary for the enhancement of a solid waste management program.(b) Eligible projects. Eligible projects shall be those that address any issue of municipal solid waste management as related to the description mentioned in subsection (a) of this section. Usual and normal expenses associated with maintaining a compliant solid waste facility or operation are not eligible for funding under the Technical Assistance Grant Program.(c) Participation frequency. Recipients shall be limited to one technical assistance grant, issued under this section, during any specific contract performance period.</content><note type="source"><p>Source Note: The provisions of this §330.894 adopted to be effective April 15, 1991, 16 TexReg 1822; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective September 5, 1999, 24 TexReg 6779; amended to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scS/s330.895"><num value="330.895">§330.895</num><heading>Information Exchange Program</heading><content>(a) Program description. The Information Exchange Program (program) is intended to facilitate the exchange of current municipal solid waste management information by providing supplementary travel expense monies. Eligible organizations shall determine their solid waste management needs and associated information requirements, and shall contact the executive director for assistance regarding these information requirements. The executive director shall determine if staff or resources can provide the necessary assistance. If the assistance of another organization is determined to be appropriate, the executive director may identify a willing advisor or facility with relevant, verifiable municipal solid waste experience. The matching of information recipients to information providers shall be done in a manner designed to maximize the amount and quality of information exchanged while minimizing the expense incurred by the state and the recipient organization. In cases where information providers are located within the state, travel to or from out-of-state locations will be approved only where such is shown to be the most cost-effective. The requesting organization, or potential recipient, may then submit a program application. It is anticipated that typically the recipient will send an individual or group of individuals to the advisor so that an actual operational technology or process may be reviewed. However, the executive director recognizes that, to maximize the information exchanged, the recipient may wish to have an advisor or advisors travel to the recipient's location or some other agreed-upon location. This may be appropriate; however, the recipient will be responsible for reimbursing the information providers, in full, for the appropriate travel expenses. The recipient may, in turn, submit the appropriate reimbursed advisor(s) expenses along with their own expenses, for reimbursement by the executive director. (b) Eligible recipients. Eligible recipients shall only be local governments, public agencies, and public and private primary and secondary schools. (c) Eligible projects. Eligible projects must use advisors with a relevant, established, verifiable municipal solid waste management process or program experience. Advisors may represent any political subdivision, educational organization, or private organization. Potential exchange topics include, but are not limited to: (1) waste stream minimization; (2) recycling and recycling material markets; (3) composting; (4) educational programs and curriculum development; (5) transfer station operations; (6) waste-to-energy incineration; (7) water and sewage treatment sludge use and disposal; (8) landfill - leachate recovery and treatment; (9) landfill - gas recovery and treatment; (10) post-closure alternative land uses; (11) small and rural community municipal solid waste management; or (12) litter reduction and enforcement programs. (d) Funding limitations. Eligible travel expenses shall be those incurred while traveling within the United States. Travel expenses shall be limited to vehicle mileage, air or bus fare, food, and lodging. Recipient and/or information providers' salaries or fees are not eligible expenses. The State of Texas Travel Allowance Guide will provide the guidelines for the determination of acceptable expenses. Expenses shall be eligible for repayment only if the travel was conducted after executive director approval and shall be limited to trips of six nights or less in duration. (1) Recipient organizations must provide matching expense contributions. (2) The maximum contribution from the executive director shall be $500 per exchange. (3) The executive director will not accept contribution requests of less than $100. (e) Participation frequency. Recipient agencies or organizations shall be eligible for reimbursement under this program one time per state fiscal year. (f) Final reporting procedures. Post-informational exchange reports shall be submitted to the executive director by both the recipient and the information provider. The recipient shall also complete and submit a follow-up questionnaire form provided by the executive director within approximately 12 months after the informational exchange has occurred.</content><note type="source"><p>Source Note: The provisions of this §330.895 adopted to be effective April 15, 1991, 16 TexReg 1822; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective September 5, 1999, 24 TexReg 6779; amended to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scS/s330.896"><num value="330.896">§330.896</num><heading>Public Education and Awareness Grant Program</heading><content>(a) Program description. The Public Education and Awareness Grant Program (program) is intended to provide financial assistance for the creation, dissemination, and implementation of programs designed to increase public awareness and knowledge with regard to municipal solid waste management issues. The purpose of this program shall be to encourage various educational institutions, nonprofit service and/or environmental protection organizations, local governments, and public agencies to develop creative, innovative, multifaceted public education and awareness programs. The programs and materials developed under this program shall be made available to the public free of charge or for a nominal fee designed to offset organizational handling expenses. It is not the intent of this program to subsidize the development of profit-oriented campaigns.(b) Eligible requests. Potential programs include, but are not limited to:(1) institutional educational curriculum development and implementation;(2) seminars, workshops, conferences, or lectures;(3) audiovisual presentations or programs;(4) mass media programs, articles, or public service announcements;(5) literature purchase, creation, or dissemination; or(6) public awareness events.(c) Participation frequency. Recipients shall be limited to one public education and awareness grant, issued under this section, during any specific contract performance period.</content><note type="source"><p>Source Note: The provisions of this §330.896 adopted to be effective April 15, 1991, 16 TexReg 1822; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scS/s330.897"><num value="330.897">§330.897</num><heading>Supplemental Funding for the Enforcement of the Solid Waste Disposal Act and the Litter Abatement Act</heading><content>(a) Program description. The Supplemental Funding Program (program) is intended to provide supplementary grants to local governments for the enforcement and/or policing of the Solid Waste Disposal Act and the Litter Abatement Act. This program shall be managed so as to provide financial assistance and incentive to local governments to develop, expand, and/or improve an existing municipal solid waste and/or litter abatement enforcement program within their area of jurisdiction. Multifaceted programs that seek to combine preventive measures, public education/awareness, surveillance, and enforcement, including sentencing programs that result in environmental services being provided to the local community, are encouraged by the commission. For funded programs, the commission expects that the local authority will continue to sustain the program after supplementary funding ceases.(b) Eligible recipients. Eligible recipients shall only be local governments of the State of Texas.(c) Participation frequency. Recipients shall be limited to one enforcement grant, issued under this section, during any specific contract performance period.</content><note type="source"><p>Source Note: The provisions of this §330.897 adopted to be effective April 15, 1991, 16 TexReg 1822; transferred effective March 1, 1992, as published in the Texas Register, March 3, 1992, 17 TexReg 1649; amended to be effective September 5, 1999, 24 TexReg 6779; amended to be effective March 27, 2006, 31 TexReg 2502.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scT"><num value="T">SUBCHAPTER T</num><heading>USE OF LAND OVER CLOSED MUNICIPAL SOLID WASTE LANDFILLS</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scT/s330.951"><num value="330.951">§330.951</num><heading>Definitions</heading><content>Unless otherwise noted, all terms contained in this section are defined by their plain meaning. This section contains definitions that are applicable only to this subchapter and that supersede definitions in §330.3 of this title (relating to Definitions) where those terms appear in this subchapter. As used in this subchapter, words in the singular include the plural and words in the plural include the singular. The following words and terms, when used in this subchapter, have the following meanings.(1) Alteration--Minor changes and standard redesign activities common in residential and commercial structures, such as moving walls and doors, that will not affect the foundation or increase the horizontal extent of the foundation.(2) Authorization--A written approval issued by the executive director that, by its conditions, may allow the disturbance of the integrity of the final cover.(3) Closed municipal solid waste landfill--A permitted or previously permitted municipal solid waste landfill, a municipal solid waste landfill which has never been permitted, or a dumping area as defined in this section, which stopped receiving waste and completed the closure activities.(4) Closure plan--A plan addressing the placement of a final cap on a closed municipal solid waste landfill where waste is exposed or the existing cap is inadequate.(5) Construction--The inception of an activity that provides improvements necessary for the utilization of an enclosed structure.(6) Develop and/or development--Any activity on or related to real property that is intended to lead to the construction or alteration of an enclosed structure for the use and/or occupation of people for an industrial, commercial, or public purpose or to the construction of residences for three or more families, including subdivisions that will include single-family homes and duplexes.(7) Development permit--A written permit issued by the executive director that, by its conditions, may authorize a person or persons to develop an enclosed structure over a closed municipal solid waste landfill unit. The development permit does not supersede local building and development permits, but is an additional permit.(8) Dumping area--An non-permitted area of land or an excavation with unknown boundaries or which have had the boundaries determined through subsequent investigation that has received only municipal solid waste or municipal solid waste combined with other solid wastes, including but not limited to, construction/demolition waste, commercial solid waste, nonhazardous sludge, very small quantity generator hazardous waste, and industrial solid waste, and that is not a land treatment unit, surface impoundment, injection well, or waste pile as those terms are defined in 40 Code of Federal Regulations §257.2.(9) Enclosed structure or structure--Any permanent structure that is intended to be or has the potential of being used or occupied by people for an industrial, commercial, public, or residential purpose.(10) Essential improvements--All improvements and appurtenances including, but not limited to, the excavations for the structure, installation of utilities, on-site wastewater disposal facilities, grading and drainage improvements, access drives and parking lots, foundation, security, fencing, landscape plantings, and irrigation systems necessary for the utilization of an enclosed structure.(11) Existing structure--Any enclosed structure that began development prior to September 1, 1993.(12) Permitted development--An enclosed structure or group of enclosed structures that have been issued a development permit.(13) Post-closure care--The period of time beginning with the professional engineer certification of completing final closure activities as accepted by the executive director in accordance with §§330.453(f), 330.455(c), or 330.457(f)(5) of this title (relating to Closure and Post-Closure) and ending with the professional engineer certification of completion of post-closure care maintenance as accepted by the executive director in accordance with §330.463 of this title (relating to Post-Closure Care Requirements). Monitoring and maintenance activities are required during the post-closure care period in accordance with §330.463 of this title.(14) Post-closure care landfills--A municipal solid waste landfill facility that has received a municipal solid waste permit under §330.7 of this title (relating to Permit Required) and is currently in the post-closure care period as defined in this section.(15) Registration--A document issued by the executive director regarding submitted information for an existing enclosed structure built over a closed municipal solid waste landfill unit that does not require a development permit.(16) Site operating plan--A prepared document that provides guidance for operations and procedures necessary to maintain human safety and environmental protection at the development, permitted development, or existing structure in a manner consistent with the development permit and the commission's regulations.(17) Structures gas monitoring plan--A document prepared by a licensed professional engineer that provides procedures to ensure the detection of landfill gases and the prevention of migration of landfill gases into enclosed structures.</content><note type="source"><p>Source Note: The provisions of this §330.951 adopted to be effective May 17, 1995, 20 TexReg 3241; amended to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scT/s330.952"><num value="330.952">§330.952</num><heading>Applicability and Exemptions</heading><content>(a) Applicability. The requirements in this subchapter apply to:(1) persons owning, leasing, or developing property overlying a closed municipal solid waste landfill as defined by §330.951 of this title (relating to Definitions), except as noted in subsection (b) of this section; and(2) persons developing a tract of land greater than one acre, except as noted in subsection (b) of this section;(b) Exemptions. The following persons shall be exempt from certain requirements of this subchapter.(1) An owner of property constructing a single-family or double-family home, other than a developer of a housing subdivision, shall be exempt from §330.953 of this title (relating to Soil Test Required before Development), §330.954 of this title (relating to Development Permit, Development Authorization, and Registration Requirements, Procedures, and Processing), and §330.961 of this title (relating to Operational Requirements for an Enclosed Structure Over a Closed Municipal Solid Waste Landfill Unit or a Municipal Solid Waste Landfill in Post-Closure Care).(2) An owner of an existing structure built over a closed municipal solid waste landfill unit and that is a single-family or double-family home shall be exempt from §330.954 of this title and/or §330.959 of this title (relating to Contents of Registration Application for an Existing Structure Built Over a Closed Municipal Solid Waste Landfill Unit) and §330.961 of this title.</content><note type="source"><p>Source Note: The provisions of this §330.952 adopted to be effective May 17, 1995, 20 TexReg 3241; amended to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scT/s330.953"><num value="330.953">§330.953</num><heading>Soil Test Required before Development</heading><content>(a) A person may not undertake the development of a tract of land that is greater than one acre in area unless the person conducts a soil test prior to or during development and construction. The soil test is intended to determine if a landfill exists on the property planned for development.(b) A soil test under this section shall be conducted by a licensed professional engineer.(c) The licensed professional engineer must choose one of the following tests.(1) Test I. The licensed engineer shall observe all subsurface disturbances, undertaken for whatever reason, during development through the completion of the foundation. A subsurface investigation prior to construction is not required by Test I.(2) Test II. A subsurface investigation undertaken for the purpose of finding a closed municipal solid waste landfill unit. The investigation must incorporate a sufficient number of borings or excavations, the number of which shall be determined on a site-specific basis by the licensed professional engineer. Each boring or excavation shall be to a minimum depth of ten feet.(3) Test III. A subsurface investigation conducted at the development site for geotechnical or environmental purposes, or a housing and urban development test for a homeowner's warranty.(d) In accordance with Texas Health and Safety Code, §361.538(c), any engineer who conducts a soil test and determines that part of the tract overlies a closed municipal solid waste landfill shall notify the following persons of that determination within 30 days of the completion of the test:(1) each owner and each lessee of the tract;(2) the executive director;(3) local government officials with the authority to disapprove the application for development; and(4) the regional council of governments.(e) The responsible engineer shall affix his seal, signature, and date of execution to the soil test results as required by the Texas Engineering Practice Act, §15c, and in accordance with 22 TAC §137.33 (relating to Sealing Procedures).(f) All soil test excavations where waste is removed shall be backfilled and compacted with clean high-plasticity or low-plasticity clay. The excavation shall be backfilled to exceed the existing grade and provide positive drainage.</content><note type="source"><p>Source Note: The provisions of this §330.953 adopted to be effective May 17, 1995, 20 TexReg 3241; amended to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scT/s330.954"><num value="330.954">§330.954</num><heading>Development Permit, Development Authorization, and Registration Requirements, Procedures, and Processing</heading><content>(a) Permit required for development over a closed municipal solid waste (MSW) landfill unit.(1) No person may commence or continue physical construction of an enclosed structure over a closed MSW landfill as defined in §330.951 of this title (relating to Definitions) without first submitting a development permit application in accordance with §330.956 of this title (relating to Application for Proposed or Existing Constructions Over a Closed Municipal Solid Waste Landfill Unit, General Requirements) and receiving a development permit issued by the executive director, except as noted in paragraph (7) of this subsection. The permit issued by the executive director under this subchapter is a development permit and not a permit for the management of solid waste. A permit application for a development permit shall comply with those requirements in this subchapter. A permit application to manage MSW shall comply with the applicable sections of Chapter 281 and Chapter 305 of this title (relating to Applications Processing and Consolidated Permits), and Subchapters A - M of this chapter.(2) A development permit is required for construction of an enclosed structure over a closed MSW landfill that had received a permit under §330.7 of this title (relating to Permit Required) and had its permit revoked at the end of the post-closure care period in accordance with §305.67 of this title (relating to Revocation and Suspension upon Request or Consent) or for construction of an enclosed structure over a non-permitted closed MSW landfill. The exact waste boundary may be determined through soil boring tests in accordance with §330.953 of this title (relating to Soil Test Required before Development), or through alternative investigation methods approved by the executive director.(3) A development permit for construction of an enclosed structure is required for an entire property that includes a closed MSW landfill with unknown boundaries as defined in §330.951 of this title.(4) The permit application under this subchapter must be received at least 45 days prior to the proposed commencement of construction over the closed MSW landfill unit.(5) If a person directs an engineer to conduct Soil Test I, and the soil test reveals the existence of a closed MSW landfill unit after the commencement of construction, construction of the enclosed structure being built over the waste area shall cease immediately, and a permit application shall be submitted and a development permit issued before construction of the enclosed structure over the waste area unit can resume. The person may proceed with construction and development of other facilities, including those items listed in the definition of essential improvements.(6) If a person directs an engineer to conduct either Soil Test II or Soil Test III and the engineer discovers a closed MSW landfill unit as a result of the test, the person shall submit a permit application. Development of an enclosed structure over the closed landfill unit cannot begin until a development permit is issued.(7) If a person directs an engineer to conduct either Soil Test II or Soil Test III and the engineer does not detect a closed MSW landfill unit as a result of the test, but subsequently discovers a closed MSW landfill unit during the development, the person is not required to submit a permit application but must meet the provisions of §330.959 of this title (relating to Contents of Registration Application for an Existing Structure Built Over a Closed Municipal Solid Waste Landfill Unit).(8) As part of the application, the owner shall provide the name and physical and mailing addresses of a public building with normal operating hours such as library, city hall, or county courthouse where the application can be viewed by the general public. The facilities where the permit can be viewed shall be in compliance with all applicable requirements of the Americans with Disabilities Act. The application shall also include an adjacent landowner list.(b) Review and approval of permit application.(1) Notice of the opportunity to request a public meeting for an application shall be provided not later than 45 days of the executive director's receipt of the application in accordance with the procedures contained in §39.501(c) of this title (relating to Application for Municipal Solid Waste Permit). The owner or operator and the commission shall hold a public meeting in the local area, prior to facility authorization, if a public meeting is required based on the criteria contained in §55.154(c) of this title (relating to Public Meetings). This section does not require the commission to respond to comments, and it does not create an opportunity for a contested case hearing. The purpose of the public meeting is for the public to provide input for consideration by the commission, and for the applicant and commission staff to provide information to the public.(2) The commission shall notify the owner by mail of the date and time of the meeting .(3) The commission shall require the applicant to publish notice of the meeting in a newspaper that is generally circulated in each county in which the property proposed for development is located. The published notice must appear at least once a week for the two weeks before the date of the meeting. The commission shall also notify all individuals on the list of adjacent landowners at least 15 days prior to the meeting. The notice shall list the location, date, and time of the public meeting, and the location of the public building where the development permit application can be viewed.(4) The executive director's staff will conduct the public meeting at the designated location. The owner will make a presentation of the application, the executive director's staff will describe the development permit, and public comment will be received. The public meeting is not an evidentiary proceeding.(5) On or before the fifth day following the public meeting:(A) the executive director will either approve or deny the development permit application. The executive director shall base the decision on whether the application meets each of the requirements of §330.956 of this title and §330.957 of this title (relating to Contents of the Development Permit and Workplan Application). A decision denying the permit shall state the deficiencies that were cause for the denial and any modifications necessary to correct those deficiencies; and(B) a person may submit in writing to the chief clerk a request to be notified of the executive director's decision on the application.(6) The date on which the executive director issues the order shall be construed as the date on which notice of the decision is mailed to the owner and to each person that requested notification of the executive director's decision in accordance with paragraph (5)(B) of this subsection.(7) Petition for review of executive director's decision.(A) The owner or a person may file a petition for review not later than the tenth day after the date the executive director issues the order. The owner or person that files a petition shall file the petition with the chief clerk, and shall mail a copy of the petition to the owner and to each person that requested notification of the executive director's decision in accordance with paragraph (5)(B) of this subsection.(B) If a petition for review is filed, the commission shall act on the petition for review within 35 days after issuance of the executive director's order or at the next scheduled commission meeting, whichever is later. The commission may affirm or reverse the order issued by the executive director.(C) A commission order ruling on a petition for review is final and effective on the date issued.(8) If no petition for review is filed ten days after the executive director issues a decision, the decision is final and effective on the 11th day after the date the decision was issued.(9) If the actual cost of reviewing the permit is not equal to the application fee, the owner will be presented with either a refund or an invoice in accordance with subsection (a)(7) of this section. If an invoice is submitted, a development permit will not be issued until the invoice is paid.(10) An owner who is denied a development permit may submit a new application to the executive director.(c) Requirements for development over a closed MSW landfill in post-closure care.(1) For an MSW landfill that is covered by an existing permit for the management of solid waste received under §330.7 of this title and is currently in post-closure care, no person may commence physical construction of an enclosed structure without submitting a permit modification application for the closure plan and post-closure plan of the existing permit in accordance with §305.70(j)(6) of this title (relating to Municipal Solid Waste Permit and Registration Modifications), or a permit amendment application in accordance with §305.62 of this title (relating to Amendment), and a workplan including those items listed in §330.957 of this title, and receiving the approval from the executive director.(2) For an MSW landfill that is covered by an existing permit for the management of solid waste received under §330.7 of this title and is currently in post-closure care, no person may commence with any type of non-enclosed structures, which will result in the disturbance, in any way, of the final cover without submitting a permit modification application for the closure plan and post-closure plan of the existing permit in accordance with §305.70(j)(6) of this title or a permit amendment application in accordance with §305.62 of this title, and a workplan including those items listed in §330.960 of this title (relating to Contents of Authorization Request to Disturb Final Cover Over a Closed Municipal Solid Waste Landfill for Non-enclosed Structures), and receiving the approval from the executive director.(3) The executive director shall issue a decision to approve or deny the permit modification/amendment application. The executive director shall base the decision on whether the application meets each of the requirements of §305.70(j)(6) or §305.62 of this title, respectively, and of §330.957 or §330.960 of this title, respectively. A decision denying the permit modification/amendment shall state the deficiencies that were cause for the denial and any modifications necessary to correct those deficiencies.(d) Registration for existing structures.(1) The owner or lessee of an existing structure that existed or began development prior to September 1, 1993, and is built over a closed MSW landfill unit, shall submit a registration application to the executive director. The registration application shall be submitted to the executive director and shall include those items listed in §330.959 of this title. This paragraph is not intended to require that owners and lessees of enclosed structures initiate investigations for closed MSW landfills.(2) A registration issued by the executive director under this subchapter is not a registration for the management of solid waste. A registration application for an existing structure shall comply with those requirements in this subchapter. A registration application to manage MSW shall comply with the applicable sections of Chapter 281 and Chapter 305 of this title and Subchapters A - M of this chapter.(3) The owner shall submit the registration within 180 days from the determination that the structure overlies a closed MSW landfill.(4) Upon receipt of written approval of the structures gas monitoring plan or approval with modifications to the plan from the executive director, the owner or lessee of the existing structure shall implement the plan in accordance with its approved schedule.(e) Authorization to disturb final cover for non-enclosed structures.(1) The integrity of the final cover of a closed MSW landfill shall not knowingly be violated, disturbed, altered, removed, or interrupted in any way without the prior authorization of the executive director, except where soil tests are being performed in accordance with §330.953 of this title.(2) Penetrations of the final cover or liner systems will not be allowed without the prior authorization of the executive director. These include, but are not limited to, borings, piers, spread footings, foundations for light standards, fence posts, anchors, deadman anchors, manholes, on-site disposal systems, recreational facilities, and any other kind of non-enclosed structures.(3) An authorization to disturb final cover issued by the executive director under this subchapter is not an authorization for the management of solid waste. An application for authorization shall comply with those requirements in this subchapter.(4) The authorization request must be received at least 45 days prior to the proposed commencement of construction over the closed MSW landfill unit.</content><note type="source"><p>Source Note: The provisions of this §330.954 adopted to be effective May 17, 1995, 20 TexReg 3241; amended to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scT/s330.955"><num value="330.955">§330.955</num><heading>Miscellaneous</heading><content>(a) An enclosed area to be occupied by people under the natural grade of the land or under the grade of the final cover of the closed municipal solid waste (MSW) landfill will not be allowed.(b) The executive director may require that additional soil layers or building pads be placed on the final cover prior to the initiation of any construction activity or structural improvements in order to protect the integrity and function of the final cover, any liner(s), any components of the containment system(s), or any monitoring system(s).(c) The executive director may allow small amounts of solid waste removed from a closed MSW landfill (including residuals from a soil test) to be redeposited in the closed MSW landfill on a case-by-case basis. The workplan for developing land over a closed MSW landfill should describe the steps taken to ensure that removed waste will be appropriately covered or removed to an authorized waste management facility.(d) Unauthorized pilings in or through the final cover of a closed MSW landfill are prohibited.(e) Unauthorized borings or other penetrations of the final cover of a closed MSW landfill are prohibited.(f) Any water that comes in contact with waste becomes contaminated water and has to be properly discharged in a manner that will not cause surface water or groundwater contamination.(g) Locations where waste is removed shall be backfilled and compacted with clean high-plasticity or low-plasticity clay. The excavation shall be backfilled to exceed the existing grade and provide positive drainage.(h) No waste shall be left exposed overnight.</content><note type="source"><p>Source Note: The provisions of this §330.955 adopted to be effective May 17, 1995, 20 TexReg 3241; amended to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scT/s330.956"><num value="330.956">§330.956</num><heading>Application for Proposed or Existing Constructions Over a Closed Municipal Solid Waste Landfill Unit, General Requirements</heading><content>(a) The application shall be submitted prior to the public meeting. The owner shall be required to comply with the design, construction, and operating procedures proposed in the application.(b) The owner is responsible for providing the executive director data of sufficient completeness, accuracy, and clarity to provide assurance that operation of the facility will pose no reasonable probability of adverse effects to the health, welfare, or physical property of residents and occupants of the structures, and the environment. Failure to provide complete information as required by this subchapter may be cause for the executive director to return the application without further action. Submission of false information shall constitute grounds for denial or revocation of the development permit. The owner is responsible for determining and reporting to the executive director any site-specific conditions that require special design considerations. The proposed development shall be in compliance with all applicable state and federal laws.(c) The owner shall submit an application following the requirements in §330.57(e) - (h) of this title (relating to Permit and Registration Applications for Municipal Solid Waste Facilities).(d) The maps submitted as a group shall show the following:(1) the prevailing wind direction with a wind rose;(2) all known water wells within 500 feet of the proposed development permit boundary. The state well-numbering system designation for Texas Water Development Board "Located Wells," where applicable, shall be shown;(3) area streams, ponds, lakes, and wetlands;(4) the property boundary of the site;(5) drainage, pipeline, and utility easements within or adjacent to the site; and(6) schools, licensed day care facilities, hospitals and other health care facilities within 1,000 feet of the boundaries of the known fill area.</content><note type="source"><p>Source Note: The provisions of this §330.956 adopted to be effective May 17, 1995, 20 TexReg 3241; amended to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scT/s330.957"><num value="330.957">§330.957</num><heading>Contents of the Development Permit and Workplan Application</heading><content>(a) General requirements. The application shall follow the general requirements in §330.956 of this title (relating to Application for Proposed or Existing Constructions Over a Closed Municipal Solid Waste Landfill Unit, General Requirements).(b) Certification.(1) Following the language of Texas Health and Safety Code, §361.533, the licensed professional engineer preparing a development permit application shall include the following certification: Certification of No Potential Threat to Public Health or the Environment. "I, _____________, P.E. #______________, certify that the proposed development is necessary to reduce a potential threat to public health or the environment, or that the proposed development will not increase or create a potential threat to public health or the environment. Further, I certify that the proposed development will/will not damage the integrity or function of any component of the Closed Municipal Solid Waste Landfill Unit, including, but not limited to, the final cover, containment systems, monitoring system, or liners. This certification includes all documentation of all studies and data on which I relied in making these determinations." (signed, sealed, and dated by the licensed professional engineer).(2) For landfills in post-closure care, the owner or operator of the closed municipal solid waste (MSW) landfill unit shall submit to the executive director for review and approval a certification, signed by an independent licensed professional engineer and including all applicable documentation necessary to support the certification, demonstrating that:(A) any proposed construction activities or structural improvements on the closed MSW landfill unit or waste management area shall not disturb the integrity and function of the final cover, any liner(s), all components of the containment system(s), and any monitoring system(s);(B) the post-closure activities or improvements shall not increase or serve to create any potential threat to human health and the environment or that the proposed activities or improvements are necessary to reduce a potential threat to human health and the environment;(C) any proposed modification or replacement of existing construction activities or structural improvements on any closed MSW landfill unit or waste management area that may disturb the integrity and function of any portion of the final cover, any liner(s), any components of the containment system(s), or any monitoring system(s) shall not increase nor serve to create any potential threat to human health and the environment; and(D) other disturbances of a closed MSW landfill unit or waste management area if the owner or operator submits to the executive director for review and approval, a certification that demonstrates that the disturbance, including the removal of any waste, shall not cause harm to the integrity and function of the final cover, any liner(s), any components of the containment system(s), or any monitoring system(s) and shall not increase nor serve to create any potential threat to human health or the environment. This certification shall be signed by the owner or operator of the unit or facility and an independent licensed professional engineer and shall include all applicable documentation necessary for the certification.(c) Existing conditions summary. The owner shall discuss any land use, environmental, or special issues that affect the facility. This shall include, but not be limited to:(1) condition of final cover;(2) waste characterization;(3) gas production; and(4) potential environmental impacts.(d) Legal authority. The applicant shall provide verification of the applicant's legal status. Normally, this is a one-page certificate of incorporation issued by the Secretary of State.(e) Evidence of competency. The names of the principals and supervisors of the applicant's organization relative to the development shall be provided.(f) Notice of appointment. The applicant shall provide a notice of appointment identifying the applicant's engineer.(g) Notice of coordination. The applicant shall provide notice of coordination with all local, state, and federal government officials and agencies.(h) Legal description. The applicant shall provide legal description of the property in accordance with §330.59(d) of this title (relating to Contents of Part I of the Application).(i) Site drawing. The applicant shall provide a site drawing, drawn to scale, that indicates the location of all waste disposal areas, existing and proposed structures, creeks, and ponds.(j) Maps. All maps shall clearly show the boundaries of the tract of land under development and the actual fill areas.(1) General location maps. These maps shall be all or a portion of county maps prepared by the Texas Department of Transportation (TxDOT). At least one general location map shall be at a scale of 1/2 inch equals one mile. If the TxDOT publishes more detailed maps of the proposed site area, the more detailed maps shall also be included. The latest published revision of all maps shall be used. In addition, the applicant shall provide maps as necessary to accurately show proximity of the site to surrounding features and structures.(2) General topographic maps. These maps shall be United States Geological Survey 7-1/2 minute quadrangle sheets or equivalent. At least one general topographic map shall be at a scale of one inch equals 2,000 feet.(k) General geology and soils statement. The application shall include a discussion in general terms of the geology and soils of the proposed facility, including any known pathways for leachate and landfill gas migration.(l) Groundwater and surface water statement. The application shall include a description of the groundwater and surface water resources at or near the facility and how they will be impacted by the development.(m) Foundation plans. The owner shall provide foundation plans, including geotechnical soil investigation and design reports.(1) In order to prevent gas migration into buildings and other structures, structures shall be designed and constructed in accordance with the following criteria.(A) A geomembrane or equivalent system with very low gas permeability shall be installed between the slab and the subgrade, and a permeable layer of a minimum thickness of 12 inches, composed of an open-graded, clean aggregate material, shall be installed between the geomembrane and the subgrade.(B) A geotextile filter shall be utilized to prevent introduction of fine soil or other particulate matter into the permeable layer.(C) A landfill gas ventilation or active collection system shall be installed consistent with the structures gas monitoring plan required by subsection (t) of this section.(D) Perforated venting pipes or alternative venting methods approved by the executive director shall be installed within the permeable layer and shall be designed to operate without clogging.(E) The venting gas devices shall be constructed to allow connection to an induced-draft exhaust system.(F) Automatic methane gas sensors shall be installed within the venting pipe and/or permeable gas layer and inside the building or any other structure in order to trigger an audible alarm when methane gas concentrations greater than 20% of the lower explosive limit are detected.(2) Alterations of existing structures are exempt from the requirements of paragraph (1) of this subsection.(3) An owner who requests suspension of gas monitoring based upon the demonstration required by subsection (t)(1)(B) of this section, may submit to the executive director a request for a variance from the requirements of paragraph (1) of this subsection. The executive director shall base the decision on site-specific factors including, but not limited to, age of the MSW landfill, type of waste deposited in the MSW landfill, and testing methods utilized by the owner.(n) Other plans. The application shall include the following plans:(1) grading and drainage;(2) irrigation systems; and(3) a dimensional control plan of the facility relating all existing and/or proposed enclosed structures and essential improvements of the development and the locations of all required improvements and appurtenances to the legal description boundary of the facility and the limits of the waste disposal area, signed and sealed by a registered professional land surveyor.(o) Soil tests. The owner shall provide all soil tests and/or other information relied upon to make the determination that the facility was used as an MSW disposal area as required by §330.953 of this title (relating to Soil Test Required before Development), including procedures performed to identify the limits of the waste disposal area.(p) Certified copies of required notices. The owner shall provide certified copies of all notices having been made by the licensed professional engineer, by the owner, and by the lessor/lessee in accordance with §330.953 of this title, §330.962 of this title (relating to Notice to Real Property Records), §330.963 of this title (relating to Notice to Buyers, Lessees, and Occupants), and §330.964 of this title (relating to Lease Restrictions).(q) Closure plan. The owner shall provide a closure plan for any part of the waste disposal area that will not have a structure built over it, including placement of the final cover.(r) Operational requirements plan. The owner shall provide a plan discussing the necessary procedures and practices to be implemented and followed to ensure that the owner meets the provisions of §330.961 of this title (relating to Operational Requirements for an Enclosed Structure Over a Closed Municipal Solid Waste Landfill Unit or a Municipal Solid Waste Landfill in Post-Closure Care).(s) Site operating plan. The owner shall provide a site operating plan, which at a minimum shall include specific guidance, procedures, instructions, and schedules for the following:(1) a description, including size, type, and function, of the equipment to be utilized at the structure other than methane monitoring equipment;(2) a detailed description of the procedures that the operating personnel shall follow to utilize the equipment; and(3) a plan to implement and maintain the operational requirements of §330.961 of this title.(t) Structures gas monitoring plan. The owner shall provide a structures gas monitoring plan in accordance with the following.(1) General.(A) The owner or lessee of a new enclosed structure built or installed over a closed MSW landfill unit shall ensure that the concentration of methane gas within the facility structure does not exceed 20% of the lower explosive limit for methane (1.0% by volume methane) in facility structures (excluding gas control or recovery system components) overlying the closed MSW landfill unit.(i) Any new enclosed structures shall contain automatic methane gas sensors approved by the executive director and designed to trigger an audible alarm if the volumetric concentration of methane in the air is greater than 1.0% (20% of the lower explosive limit).(ii) Any new enclosed structures built over a closed MSW landfill shall utilize a ventilation system or an active gas extraction and collection system.(B) Landfill gas monitoring requirements for a development applying for a development permit under this subchapter may be suspended by the executive director if the owner can demonstrate that there is no potential for migration of the landfill gases listed in paragraph (2)(G) of this subsection. This demonstration shall be certified by a licensed professional engineer and approved by the executive director, and shall be based upon site-specific field-collected measurements, sampling, and analysis of physical, chemical, and biological processes.(2) Requirements for structures gas monitoring plan. The owner or lessee shall submit a structures gas monitoring plan, designed by a licensed professional engineer, to the executive director for review and approval. The plan shall ensure detection of the presence of landfill gas entering on-site structures. All design drawings shall bear the licensed engineer's seal and signature. The plan shall include, but not be limited to, the following:(A) a discussion of specific facility characteristics and potential migration pathways or barriers in the development of the plan, including, but not limited to:(i) locations of buildings and structures relative to the waste disposal area;(ii) the nature and age of waste and its potential to generate landfill gas;(iii) routes of entry for the intrusion of landfill gas into structures;(iv) ignition sources within structures;(v) the location of any utility lines or pipelines that cross, are adjacent to, or are near the closed MSW landfill unit;(vi) number of people occupying the structures and duration of occupation; and(vii) depth of final cover over deposited waste;(B) a narrative describing design characteristics of proposed structures related to landfill gas accumulation prevention, detection, and elimination including, but not limited to:(i) structural;(ii) electrical; and(iii) mechanical;(C) a description of the ventilation system or active gas collection and destruction system to be utilized including engineering drawings and manufacturer's specification sheets. Active gas collection and destruction systems shall comply with applicable parts of §§115.152, 115.153, 115.155 - 115.157, and 115.159 of this title (relating to Control Requirements; Alternate Control Requirements; Approved Test Methods; Monitoring and Recordkeeping Requirements; Exemptions; and Counties and Compliance Schedule);(D) a description of landfill gas monitoring equipment to be used in existing and proposed structures, complete with manufacturer's specification sheets;(E) a detailed implementation schedule for the installation of landfill gas monitoring equipment;(F) a sampling and analysis plan for determining landfill gas components, which includes provisions for:(i) sample withdrawal equipment and techniques;(ii) sampling protocol for field measurements of diluted gas emissions; and(iii) a quality assurance/quality control sampling plan to include, but not be limited to:(I) field sampling;(II) analytical methods;(III) quality control samples and methods;(IV) laboratory data reduction; and(V) documentation required; and(G) a complete analysis of the landfill gas to include, but not be limited to:(i) a mass balance analysis for major components such as methane, other light hydrocarbons, carbon monoxide, and water vapor measured with fairly high precision (i.e., 5.0% - 10% relative error);(ii) trace analyses for hydrogen sulfide, mercaptans, and ammonia; and(iii) analysis for volatile organic compounds using an evacuated steel canister collection device (similar to United States Environmental Protection Agency Method T014) and gas chromatography/mass spectrometry detection system.(u) Safety and evacuation plan. The owner shall provide a plan describing evacuation procedures and safety measures in the event the methane gas sensors sound the audible alarms.</content><note type="source"><p>Source Note: The provisions of this §330.957 adopted to be effective May 17, 1995, 20 TexReg 3241; amended to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scT/s330.958"><num value="330.958">§330.958</num><heading>Construction Plans and Specifications</heading><content>Construction plans and specifications of the proposed or modified structure shall be prepared and maintained at the structure at all times during construction. After completion of construction, one set of as-built construction plans and specifications shall be maintained at the permitted development. Plans maintained at the structure shall be made available for inspection by executive director representatives.</content><note type="source"><p>Source Note: The provisions of this §330.958 adopted to be effective May 17, 1995, 20 TexReg 3241; amended to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scT/s330.959"><num value="330.959">§330.959</num><heading>Contents of Registration Application for an Existing Structure Built Over a Closed Municipal Solid Waste Landfill Unit</heading><content>(a) The application shall follow the general requirements as set forth in §330.956 of this title (relating to Application for Proposed or Existing Constructions Over a Closed Municipal Solid Waste Landfill Unit, General Requirements).(b) The registration application shall consist of the following:(1) a legal description as set forth in §330.957(h) of this title (relating to Contents of the Development Permit and Workplan Application);(2) certified copies of all notices having been made by the owner and the lessor/lessee in accordance with §330.962 of this title (relating to Notice to Real Property Records), §330.963 of this title (relating to Notice to Buyers, Lessees, and Occupants), and §330.964 of this title (relating to Lease Restrictions);(3) plans and drawings as set forth in §330.957(i), (j), and (n)(3) of this title;(4) a site operating plan as set forth in §330.957(s) of this title;(5) a structures gas monitoring plan:(A) General.(i) The owner or lessee of an existing structure built over a closed municipal solid waste landfill unit shall ensure that the concentration of methane gas generated by the landfill does not exceed 20% of the lower explosive limit for methane (1.0% by volume methane in air) in facility structures (excluding gas control or recovery system components). Any enclosed structures shall contain automatic methane gas sensors approved by the executive director and designed to trigger an audible alarm if the volumetric concentration of methane in the air is greater than 1.0%.(ii) Landfill gas monitoring requirements for a registration under this section may be suspended by the executive director as provided for in §330.957(t)(1)(B) of this title.(B) Requirements for structures gas monitoring plan. The owner or lessee shall submit a structures gas monitoring plan, designed by a licensed professional engineer, to the executive director for review and approval. The plan shall ensure detection of the presence of landfill gas entering on-site structures. All design drawings should bear the licensed engineer's seal and signature. The plan shall include, but not be limited to, the following:(i) an analysis of specific facility characteristics and potential migration pathways or barriers as set forth in §330.957(t)(2)(A) of this title;(ii) a facility drawing, drawn to scale, which indicates the location of all waste disposal areas, existing structures, creeks, and ponds;(iii) a narrative describing modifications to the existing structures including, but not limited to, the following:(I) structural;(II) electrical;(III) mechanical; and(IV) landfill gas monitoring equipment including manufacturer's specification sheets and any gas ventilation or active gas extraction systems if the development utilizes such systems;(iv) a detailed implementation schedule for the installation of landfill gas monitoring equipment;(v) a sampling and analysis plan as set forth in §330.957(t)(2)(F) of this title; and(vi) a landfill gas analysis as set forth in §330.957(t)(2)(G) of this title; and(6) a safety and evacuation plan describing evacuation procedures and safety measures in the event the methane gas sensors sound the audible alarms.</content><note type="source"><p>Source Note: The provisions of this §330.959 adopted to be effective May 17, 1995, 20 TexReg 3241; amended to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scT/s330.960"><num value="330.960">§330.960</num><heading>Contents of Authorization Request to Disturb Final Cover Over a Closed Municipal Solid Waste Landfill for Non-enclosed Structures</heading><content>The owner of a property that includes a closed municipal solid waste landfill shall not disturb the final cover without prior written approval from the executive director. The authorization request shall include the following:(1) a certification as set forth in §330.957(b) of this title (relating to Contents of the Development Permit and Workplan Application);(2) the existing conditions summary as set forth in §330.957(c) of this title;(3) proposed project description including location related to the closed landfill;(4) description of the construction/investigation process including, but not limited to, work schedule and safety issues during construction;(5) description of the procedures for water and/or methane monitoring and excavated material disposal during construction;(6) maps and drawings, site drawing, and general location map to indicate the landfill location; and(7) engineering plans, sealed and signed by a licensed professional engineer indicating the proposed project description and its location relative to the landfill.</content><note type="source"><p>Source Note: The provisions of this §330.960 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scT/s330.961"><num value="330.961">§330.961</num><heading>Operational Requirements for an Enclosed Structure Over a Closed Municipal Solid Waste Landfill Unit or a Municipal Solid Waste Landfill in Post-Closure Care</heading><content>(a) General.(1) The development permit or registration, the site operating plan, any closure plan, the structures gas monitoring plan, the safety and evacuation plan, and all other documents and plans required by this subchapter shall become operational requirements and shall be considered a part of the operating record of the development or structure. A copy of these documents shall be maintained on site in an office at the permitted/registered development.(2) The owner, operator, or lessee shall retain the operating record for the life of the structure.(3) Any deviation from the development permit/registration and incorporated plans or other related documents associated with the development permit or registration without approval of the executive director is a violation of this subchapter.(4) The development permit or registration holder shall notify the executive director, and any local pollution agency with jurisdiction that has requested to be notified, of any incident involving the facility relative to the development permit or registration and provisions for the remediation of the incident.(b) Landfill gas control. All landfill gases shall be monitored in accordance with the structures gas monitoring plan prepared as set forth in §330.957 of this title (relating to Contents of the Development Permit and Workplan Application) and §330.959 of this title (relating to Contents of Registration Application for an Existing Structure Built Over a Closed Municipal Solid Waste Landfill Unit).(1) Landfill gas monitoring.(A) The owner or lessee of a new structure to be built or an existing structure built over a closed municipal solid waste (MSW) landfill unit shall provide equipment for monitoring on-site structures, including, but not limited to, buildings, subsurface vaults, utilities, or any other areas where potential gas buildup would be of concern.(B) Monitoring on-site structures may include, but is not limited to, periodic monitoring using either permanently installed monitoring probes or continuous monitoring systems.(C) Structures located on top of the waste area shall be monitored on a continuous basis, and monitoring equipment shall be designed to trigger an audible alarm if the volumetric concentration of methane in the sampled air is greater than 1% within the venting pipe or permeable layer, and/or inside the structure. When practical, structures should be monitored after they have been closed overnight or for the weekend to allow for an accurate assessment of gas accumulation.(D) Areas of the structure where gas may accumulate should be monitored and include, but are not limited to, areas in, under, beneath, and around basements, crawl spaces, floor seams or cracks, and subsurface utility connections.(E) Gas monitoring and control systems shall be modified as needed to reflect modifications to the structure.(2) Reporting.(A) All on-site structures shall be sampled for methane on a monthly basis. All monthly sampling results shall be placed in the operating record of the facility in accordance with §330.125(b)(3) of this title (relating to Recordkeeping Requirements) and be made available for inspection by the executive director, and any local pollution agency with jurisdiction that has requested to be notified, in accordance with §330.125(c) of this title. If methane gas levels exceeding the limits specified in paragraph (1) of this subsection are detected, the owner, operator, or lessee shall notify the executive director and take action in accordance with §330.371(c) of this title (relating to Landfill Gas Management).(B) Sampling for specified trace gases may be required by the executive director when there is a possibility of acute or chronic exposure due to carcinogenic or toxic compounds.(c) Air criteria.(1) The closed MSW landfill is subject to commission jurisdiction concerning burning and air pollution control. The owner shall ensure that the closed MSW landfill does not violate any applicable requirement of the approved state implementation plan.(2) Ventilation of the closed MSW landfill and any enclosed structures shall be provided in accordance with all appropriate commission rules.(d) Ponded water. The ponding of water over waste in the closed MSW landfill unit, regardless of its origin, shall be prevented. Ponded water that occurs on a closed MSW landfill unit shall be eliminated as quickly as possible and the area in which the ponding occurred shall be filled in and regraded within seven days of the occurrence.(e) Water pollution control. Surface drainage in and around the structure shall be controlled to minimize surface water running onto, into, and off the closed MSW landfill.(f) Groundwater monitoring. Groundwater monitoring may be required by the executive director and shall be conducted in accordance with the requirements of Subchapter J of this title (relating to Groundwater Monitoring and Corrective Action).(g) Conduits. All conduits intended for the transport or carrying of fluids over or within the closed MSW landfill shall be double-containment (split casings shall not be used). To the extent possible, all such utilities shall be in fill material placed over the upgraded final cover.(h) Recordkeeping requirements.(1) The owner or lessee shall promptly record and retain in the operating record the following information:(A) all results from gas monitoring and any remediation plans pertaining to explosive and other gases;(B) all unit design documentation for the placement of gas monitoring systems and leachate or gas condensate removal or disposal related to the closed MSW landfill unit;(C) copies of all correspondence and responses relating to the development permit;(D) all documents relating to the operation and maintenance of the building, facility, or monitoring systems as they relate to the development permit; and(E) any other document(s) as specified by the approved development permit or by the executive director.(2) The owner, operator, or lessee shall provide written notification to the executive director, and any local pollution agency with jurisdiction that has requested to be notified, for each occurrence that documents listed in subsection (h) of this section are placed into or added to the operating record. All information contained in the operating record shall be furnished upon request to the executive director and shall be made available at all reasonable times for inspection by the executive director or his representative.</content><note type="source"><p>Source Note: The provisions of this §330.961 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scT/s330.962"><num value="330.962">§330.962</num><heading>Notice to Real Property Records</heading><content>(a) Owner of property. An owner of property that overlies a closed municipal solid waste (MSW) landfill shall prepare and file for record in the real property records in the county where the land is located a written notice stating:(1) the former use of the land;(2) the legal description of the tract of land that contains the closed MSW landfill, and at the owner's discretion, the portion of the tract of land that contains the closed MSW landfill;(3) notice that restrictions on the development or lease of the land exist in Texas Health and Safety Code, Chapter 361, Subchapter R and this subchapter; and(4) the name of the owner.(b) Local government official. A local government official who receives notice under §330.953 of this title (relating to Soil Test Required before Development) that a closed MSW landfill exists on a tract of land shall prepare and file for record in the real property records in the county where the land is located a written notice stating:(1) the legal description of the tract of land that contains the closed MSW landfill;(2) the current owner of the tract;(3) notice of the tract's former use as an MSW landfill unit; and(4) notice that restrictions on the development or lease of the land exist in Texas Health and Safety Code, Chapter 361, Subchapter R and in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §330.962 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scT/s330.963"><num value="330.963">§330.963</num><heading>Notice to Buyers, Lessees, and Occupants</heading><content>(a) An owner of land that overlies a closed municipal solid waste (MSW) landfill shall prepare a written notice stating the former use of the facility, the legal description of property, notice of the restrictions on the development or lease of the land imposed by this subchapter and Texas Health and Safety Code, Chapter 361, Subchapter R, and the name of the owner. The owner shall file for record the notice in the real property records of the county in which the property is located.(b) An owner of land that overlies a closed MSW landfill shall notify each lessee and each occupant of a structure that overlies the unit of:(1) the land's former use as a landfill; and(2) the structural controls in place to minimize potential future danger posed by the closed MSW landfill.</content><note type="source"><p>Source Note: The provisions of this §330.963 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scT/s330.964"><num value="330.964">§330.964</num><heading>Lease Restrictions</heading><content>This section is not intended to require that owners and lessees of property initiate investigations for closed municipal solid waste (MSW) landfills. A person may not lease or offer for lease property that overlies a closed MSW landfill unit unless:(1) existing development on the land is in compliance with this subchapter; or(2) the person gives notice to the prospective lessee of what is required to bring the property and any development on the property into compliance with this subchapter and the prohibitions or requirements for future development imposed by this subchapter and by any development permit issued for development of the property under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §330.964 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c330/scU"><num value="U">SUBCHAPTER U</num><heading>STANDARD AIR PERMITS FOR MUNICIPAL SOLID WASTE LANDFILL FACILITIES AND TRANSFER STATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c330/scU/s330.981"><num value="330.981">§330.981</num><heading>Effective Date</heading><content>The requirements of this subchapter will take effect on September 1, 2006.</content><note type="source"><p>Source Note: The provisions of this §330.981 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scU/s330.983"><num value="330.983">§330.983</num><heading>Definitions</heading><content>The terms used in this subchapter have the following meanings, unless the context clearly indicates otherwise.(1) Bioremediation--The biological breakdown of waste occurring at a landfill prior to placing the waste in a landfill cell. Processing may include adding supplements and oxygen to speed the natural biological processes, after which the material will meet landfill acceptance standards and can be placed in a cell. Common sources of material requiring bioremediation are transportation or pipeline accidents and spills.(2) Category 1 municipal solid waste landfills--Landfills with a design capacity less than 2.5 million megagrams by mass or 2.5 million cubic meters by volume that operate in accordance with 40 Code of Federal Regulations Part 60, Subpart WWW, or Chapter 113, Subchapter D of this title (relating to Designated Facilities and Pollutants), as applicable.(3) Category 2 municipal solid waste landfills--Landfills with a design capacity greater than or equal to 2.5 million megagrams and 2.5 million cubic meters and a calculated uncontrolled non-methane organic compound emission rate less than 50 megagrams per year that operate in accordance with 40 Code of Federal Regulations Part 60, Subpart WWW or Chapter 113, Subchapter D of this title (relating to Designated Facilities and Pollutants), as applicable.(4) Category 3 municipal solid waste landfills--Landfills with a design capacity greater than or equal to 2.5 million megagrams and 2.5 million cubic meters and a calculated uncontrolled non-methane organic compound emission rate greater than or equal to 50 megagrams per year that operate in accordance with 40 Code of Federal Regulations Part 60, Subpart WWW, 40 Code of Federal Regulations Part 63, Subpart AAAA, or Chapter 113, Subchapter D of this title (relating to Designated Facilities and Pollutants), as applicable.(5) Construction--Any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) that would result in a change in actual emissions.(6) Facility--A discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a stationary source, including appurtenances other than emission control equipment. A mine, quarry, well test, or road is not a facility.(7) Modification--As pertaining to a municipal solid waste landfill defined in 40 Code of Federal Regulations §60.751, means an increase in the permitted volume design capacity of the landfill by either horizontal or vertical expansion based on its permitted design capacity after May 30, 1991. Modification does not occur until the owner or operator commences construction on the horizontal or vertical expansion.(8) Modification of existing facility--Any physical change in, or change in the method of operation of, a facility in a manner that increases the amount of any air contaminant emitted by the facility into the atmosphere or that results in the emission of any air contaminant not previously emitted. The term does not include conditions listed in the definition of modification of existing facility under §116.10 of this title (relating to General Definitions).(9) Process--Any action, operation, or treatment embracing chemical, commercial, industrial, or manufacturing factors such as combustion units, kilns, stills, dryers, roasters, and equipment used in connection with them, and all other methods or forms of manufacturing or processing that may emit smoke, particulate matter, gaseous matter, or visible emissions.(10) Project--As pertaining to a municipal solid waste landfill defined in 40 Code of Federal Regulations §60.751, for the purposes of this subchapter means the construction or modification of a facility or a group of facilities submitted under the same registration.(11) Receptor--Any off-property recreational area, commercial/industrial structure, residence, or other normally occupied structures not used solely by the owner and/or operator of the municipal solid waste landfill site.(12) Site--All regulated units, facilities, equipment, structures, or sources at one street address or location that are owned or operated by the same person. Site includes any property identified in the permit or used in connection with the regulated activity at the same street address or location.(13) Source--A point of origin of air contaminants, whether privately or publicly owned or operated.(14) Waste solidification--The physical process used to reduce the mobility of constituents in a waste or to eliminate free liquids.(15) Waste stabilization--The chemical process used to stabilize the volatility of the constituents in a waste.</content><note type="source"><p>Source Note: The provisions of this §330.983 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective October 7, 2010, 35 TexReg 8973.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scU/s330.985"><num value="330.985">§330.985</num><heading>Applicability and Exceptions</heading><content>(a) This subchapter authorizes air emissions from municipal solid waste landfill sites and transfer stations that meet the conditions listed in this subchapter. Individual authorizations under this subchapter are not subject to public notice or comment or contested case hearing opportunity.(b) This standard permit does not relieve the owner and/or operator from complying with any other applicable provisions of the Texas Health and Safety Code, Texas Water Code, rules of the Texas Commission on Environmental Quality, or any other applicable state and federal rules and regulations.(c) An owner and/or operator may claim this standard permit for the operation, construction, or modification of a municipal solid waste landfill or a Type V transfer station including Type I, Type IAE, Type IV, and Type IVAE landfill as defined in §330.5 of this title (relating to Classification of Municipal Solid Waste Facilities), except as specified in subsection (d) of this section.(d) Exceptions.(1) Any project that constitutes a new major source, or major modification under the new source review requirements of the Federal Clean Air Act, Part C (Prevention of Significant Deterioration of Air Quality) or Part D (Plan Requirements for Nonattainment Areas), and the related adopted regulations are subject to the requirements of §116.110 of this title (relating to Applicability) rather than this subchapter.(2) Separate permit authorization under Chapter 106 of this title (relating to Permits by Rule) or Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification) must be obtained for the following activities at a site and may not be claimed under this subchapter:(A) incineration (not including flares or air curtain incinerators), other than that used to control landfill gas emissions, as defined in 40 Code of Federal Regulations Part 60, Subpart WWW;(B) rock crushers not used as temporary installations exclusively for cell construction, concrete batch plants, or hot mix asphalt concrete plants;(C) composting; and(D) a municipal solid waste landfill site that is permitted to accept 51% or more by weight or volume of Class 1 industrial nonhazardous waste.</content><note type="source"><p>Source Note: The provisions of this §330.985 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scU/s330.987"><num value="330.987">§330.987</num><heading>Certification Requirements</heading><content>(a) Type IV landfills are exempt from the requirements of this subsection.(b) Certification under this subchapter constitutes an acknowledgment and agreement that the permit holder will comply with all rules, regulations, and orders of the commission issued in conformity with Texas Clean Air Act, Texas Health and Safety Code, Chapter 382, and the conditions precedent to the claiming of this standard permit. If more than one state or federal rule or regulation or permit condition are applicable, the most stringent limit or condition will govern. Acceptance includes consent to the entrance of commission employees and designated representatives of any local air pollution control agency having jurisdiction over the site into the permitted premises at reasonable times to investigate conditions relating to the emission or concentration of air contaminants, including compliance with the standard permit.(c) A certification under this subchapter is valid for a term not to exceed ten years from the date of receipt by the Texas Commission on Environmental Quality. An owner and/or operator is required to renew a certification by no later than the expiration date of the certification. The commission will provide written notice to operators of the renewal deadline at least 180 days prior to the expiration of the certification.(d) Two copies of the certification must be submitted to the Waste Permits Division. One copy must be submitted to the appropriate regional office, and one copy must be sent to any appropriate local air pollution control program having jurisdiction over the site. The certification must be based on the capacity of the landfill minimum of a ten-year period. The certification must include supporting documentation to demonstrate compliance with the conditions of this subchapter and any other applicable federal and state requirements, and at a minimum should include the following:(1) the basis and quantification of emission estimates;(2) sufficient information to demonstrate that the project will comply with all applicable conditions of this subchapter; and(3) a description of any equipment and related processes.(e) Certifications must be submitted as follows.(1) Owners or operators must submit a certification for the initial construction of a municipal solid waste landfill under this subchapter at least 120 days prior to building or installation of any equipment or structure that may emit air contaminants.(2) Modifications to an existing municipal solid waste landfill site that results in a change in categories as listed in §330.983 of this title (relating to Definitions) must submit a certification at least 60 days after changes occurring at the site.(f) New facilities or changes to existing facilities that do not cause a site to become ineligible for this standard permit can be authorized by meeting one of the following:(1) independently claiming the permit by rule under Chapter 106 of this title (relating to Permits by Rule) or a standard permit under Chapter 116, Subchapter F of this title (relating to Standard Permits), including all registrations, fees, and documentation. These independent registrations must be administratively incorporated at the next standard permit certification renewal or modification; or(2) including the claimed permit by rule or standard permit as a part of an initial or modified certification. A claimed permit by rule or standard permit included under a municipal solid waste landfill standard permit certification is exempt from the registration and fee requirements normally required of permits by rule or standard permits. The certification must include sufficient information necessary to demonstrate qualification for those authorizations. Certifications must meet the following:(A) update the site certification within one year of constructing new facilities or modifications if the cumulative amount of emissions resulting from the new facilities or modifications is:(i) less than five tons per year of any criteria air contaminant for sites located in a designated nonattainment area; or(ii) less than 25 tons per year of any criteria air contaminant for sites located in an attainment area;(B) update the site certification within 30 days of constructing new facilities or modifications if the site is not considered an existing major source in accordance with prevention of significant deterioration review or nonattainment new source review, and the cumulative amount of emissions for these changes is:(i) greater than or equal to five tons per year of any criteria air contaminant for sites located in a designated nonattainment area; or(ii) greater than or equal to 25 tons per year of any criteria air contaminant for sites located in attainment areas; or(C) update the site certification at least 30 days prior to the change, including any applicable major source netting demonstration as specified in §116.150 of this title (relating to New Major Source or Major Modification in Ozone Nonattainment Areas), if the site is considered an existing major site in accordance with prevention of significant deterioration review or nonattainment new source review, and the cumulative amount of emissions for changes is:(i) greater than or equal to five tons per year of any criteria air contaminant for sites located in a designated nonattainment area; or(ii) greater than or equal to 25 tons per year of any criteria air contaminant for sites located in an attainment area.</content><note type="source"><p>Source Note: The provisions of this §330.987 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scU/s330.989"><num value="330.989">§330.989</num><heading>General Requirements</heading><content>(a) An owner and/or operator of a municipal solid waste landfill site must comply with the following general requirements, as applicable:(1) provisions of Federal Clean Air Act (FCAA), §111 (concerning Standards of Performance for New Stationary Sources) as listed under 40 Code of Federal Regulations (CFR) Part 60, promulgated by the United States Environmental Protection Agency (EPA), including, but not limited to, Subpart WWW or Chapter 113, Subchapter D of this title (relating to Designated Facilities and Pollutants);(2) provisions of FCAA, §112 (concerning Hazardous Air Pollutants) as listed under 40 CFR Part 61, promulgated by the EPA;(3) maximum achievable control technology standards as listed under 40 CFR Part 63, promulgated by the EPA under FCAA, §112 or as listed under Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories (FCAA, §112, 40 CFR 63)), including, but not limited to, Subpart AAAA;(4) if subject to Chapter 101, Subchapter H, Division 3 of this title (relating to Mass Emissions Cap and Trade Program), obtain allocations to operate; and(5) rules and regulations of the commission adopted under Texas Clean Air Act, Texas Health and Safety Code, Chapter 382, and with the intent of the Texas Clean Air Act, including the protection of health and property of the public.(b) All representations with regard to construction plans, operating procedures, permits by rule, or standard permits claimed, and maximum emission rates in any certification for this subchapter, become conditions upon which the municipal solid waste landfill must be constructed and operated. The owner or operator must submit a revised certification for changes that vary from the original representations. If changes occur and the site remains eligible for this subchapter, the owner and/or operator of the site must follow the notification/certification procedures listed in §330.987 of this title (relating to Certification Requirements). Any change that occurs such that a site, facility, or project is no longer eligible to claim this standard permit requires proper authorization under §116.111 of this title (relating to General Application).</content><note type="source"><p>Source Note: The provisions of this §330.989 adopted to be effective March 27, 2006, 31 TexReg 2502.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scU/s330.991"><num value="330.991">§330.991</num><heading>Technical and Operational Requirements for all Municipal Solid Waste Landfill Sites</heading><content>(a) Air emissions from the following stationary sources are authorized by this standard permit:(1) recycling (e.g., crushing glass, shredding or crushing aluminum, light bulb crushing, wood chipping, or mulching);(2) transfer stations:(A) located at a municipal solid waste (MSW) landfill site; or(B) not located at a landfill and store over 1,000 tons of MSW overnight, defined as sunset to sunrise, must have the waste holding area covered by a ventilated building that has a minimum 16-foot vertical exhaust of 45,000 cubic feet per minute or greater;(3) waste solidification/stabilization operations, which must be conducted with the following conditions:(A) when dry fine powdery materials, including, but not limited to, fly ash, cement kiln dust, hydrated lime, and fine sawdust are used for mixing in the waste solidification/stabilization process loading/unloading, transporting, and mixing, they must be controlled so as to minimize particular matter emissions. Controls to minimize particular matter emissions may include loading and storing in enclosed containers, or mixing and unloading under conditions where the materials cannot become airborne; and(B) no site-generated visible emissions may cross the property line for a period not to exceed 30 seconds in any six-minute period, as determined by United States Environmental Protection Agency (EPA) Test Method 22;(4) landfill cell construction, operation, and closures, including landfill gas emissions and associated capture and control equipment;(5) landfill mist spray systems to control odor. These landfill mist spray systems will operate such that no visible emissions may cross the property line for a period not to exceed 30 seconds in any six-minute period, as determined by EPA Test Method 22;(6) any other facility or group of facilities that meets a permit by rule under Chapter 106 of this title (relating to Permits by Rule) or a standard permit under Chapter 116, Subchapter F of this title (relating to Standard Permits) with the exception of activities listed in §330.985(d)(2) of this title (relating to Applicability and Exceptions);(7) leachate and landfill gas condensate activities, which must be conducted as follows:(A) leachate and/or landfill gas condensate may be recirculated on-site at a rate not to exceed 100,000 gallons per day, and in accordance with the conditions and limitations specified in §330.177 of this title (relating to Leachate and Gas Condensate Recirculation); and(B) air emissions are authorized from leachate and/or landfill gas condensate stored in tanks or disposed in evaporation ponds that are lined in accordance with §330.331(b) of this title (relating to Design Criteria), and meet the requirements in §330.17 of this title (relating to Technical Guidelines);(8) fuel storage tanks, which must meet the following requirements:(A) storage and transfer of gasoline, diesel fuel, or kerosene are authorized by this standard permit;(B) permanent gasoline tanks must be located at least 500 feet from any off-property receptor;(C) total annual throughput of gasoline for all tanks may not exceed 20,000 gallons per year unless a vapor balance system as defined in §115.10 of this title (relating to Definitions), is used; and(D) records of annual throughput must be maintained;(9) tire shredding, which may be conducted at a rate not to exceed 11 tons per hour. Records of the amount of tires shredded per hour must be maintained;(10) bioremediation pads, which must be operated such that the pad must be located at least 165 feet from any off-property receptor;(11) the GCCS, which must be designed to route total collected landfill gas to one of the following control devices:(A) flares that satisfy requirements and are operated in accordance with 40 CFR Part 60, Subpart WWW, as applicable;(B) a landfill gas-fired stationary, reciprocating internal combustion engine or a landfill gas-fired turbine not used to generate electricity, that satisfies all of the requirements of §106.4(a)(1) of this title (relating to Requirements for Permitting by Rule) and §106.512 of this title (relating to Stationary Engines and Turbines);(C) a landfill gas-fired stationary electric generating unit that satisfies all of the requirements of Chapter 116, Subchapter F of this title;(D) a landfill gas-fired boiler, heater, or other combustion unit, not including stationary, reciprocating internal combustion engines or turbines, that satisfies the maximum heat input and nitrous oxide requirements of §106.4(a)(1) of this title and §106.183 of this title (relating to Boilers, Heaters, and Other Combustion Devices) and applicable sections of Chapter 117 of this title (relating to Control of Air Pollution from Nitrogen Compounds);(E) a pollution control project that satisfies all the requirements of §116.617 of this title (relating to State Pollution Control Project Standard Permit). Any facility or process added under this subsection is not considered a new production facility for the purposes of §116.617 of this title; or(F) a gas treatment system that processes the collected gas to produce a product or by-product for subsequent sale or use. All emissions from any atmospheric vent from the gas treatment system must be subject to the requirements of 40 CFR §60.752(b)(2)(iii)(A) or (B); and(12) a temporary rock crusher that is used exclusively for cell construction that satisfies all the requirements of the Air Quality Standard Permit for Temporary Rock Crushers.(b) If sampling of stacks and/or process vents are required, the owner or operator must contact the appropriate regional office and any other air pollution control program having jurisdiction over the site prior to sampling to obtain the proper data forms and procedures. All sampling and testing procedures must be approved by the executive director and coordinated with the regional representatives of the commission. The owner or operator is also responsible for providing sampling facilities and conducting the sampling operations or contracting with an independent sampling consultant.(c) The facilities covered by this standard permit may not be operated unless all air pollution emission capture and abatement equipment is maintained in good working order and operating properly during normal facility operations. Notification for emissions events and unscheduled maintenance must be made in accordance with §101.201 of this title (relating to Emissions Event Reporting and Recordkeeping Requirements) and §101.211 of this title (relating to Scheduled Maintenance, Startup, and Shutdown Reporting and Recordkeeping Requirements).(d) Owners and/or operators must monitor and control particulate matter as follows.(1) All operations must be conducted in a manner so as to minimize any particulate matter emissions at the landfill boundary. No site-generated visible emissions, as determined by EPA Test Method 22, may not cross the property line for a period exceeding 30 seconds in any six-minute period.(2) Roads and other areas subject to vehicle traffic must be kept clean of debris and either be watered, treated with dust-suppressant chemicals, or paved with a cohesive hard surface that is maintained intact and cleaned as necessary.(3) All excavated areas must be watered or treated with dust-suppressant chemicals as necessary to control particulate matter emissions.(e) Tire shredding, outdoor dry abrasive blasting, the operation of a temporary rock crusher used exclusively for cell construction, or waste solidification/stabilization when fine materials are used in the process, must not occur simultaneously (no two or more processes can occur at the same time).(f) An MSW landfill cell that contains Class 1 industrial nonhazardous waste greater than 20% by weight or volume must have a GCCS associated with the location of the Class 1 waste, and that GCCS is subject to the provisions of §330.995 of this title (relating to Recordkeeping and Reporting Requirements for all Municipal Solid Waste Landfill Sites).</content><note type="source"><p>Source Note: The provisions of this §330.991 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scU/s330.993"><num value="330.993">§330.993</num><heading>Additional Requirements for Owners or Operators of Category 3 Municipal Solid Waste Landfills</heading><content>(a) The owner and/or operator must comply with the applicable provisions as specified in 40 Code of Federal Regulations §§60.752 - 60.759 and 40 Code of Federal Regulations Part 63, Subparts A and AAAA. The landfill gas collection and control system may be capped or removed provided that the following are met:(1) the municipal solid waste landfill is permanently closed in accordance with Subchapter K of this chapter (relating to Closure and Post-Closure); and(2) the conditions of 40 Code of Federal Regulations §60.752(b)(2)(v) are met, and a closure report has been submitted to the Texas Commission on Environmental Quality's Air Permits Division in accordance with 40 Code of Federal Regulations §60.757(d).(b) Methane concentration at the surface of the municipal solid waste landfill must be monitored quarterly, as specified in 40 Code of Federal Regulations §60.755(c).(c) The gas collection and control system must be monitored in accordance with the provisions specified in 40 Code of Federal Regulations §60.756.</content><note type="source"><p>Source Note: The provisions of this §330.993 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c330/scU/s330.995"><num value="330.995">§330.995</num><heading>Recordkeeping and Reporting Requirements for all Municipal Solid Waste Landfill Sites</heading><content>(a) A copy of this subchapter along with any claimed permit by rule, the applicable general conditions of Chapter 106, Subchapter A of this title (relating to General Requirements), and any claimed standard permits must be kept at the site.(b) The operator will keep records for any permit by rule or standard permit claimed containing sufficient information to demonstrate compliance with Chapter 106, Subchapter A of this title and all applicable permit by rule or standard permit conditions. This information must include, but is not limited to, production records and operating hours.(c) The owner or operator will maintain additional records specified in 40 Code of Federal Regulations (CFR) Part 60, Subpart WWW or 40 CFR 63, Subpart AAAA, if applicable, including:(1) an initial design capacity report required by 40 CFR §60.757(a)(2), or an amended design capacity report required by 40 CFR §60.757(a)(3);(2) records of the non-methane organic compound emission rates, determined annually using the procedures specified in 40 CFR §60.754(a)(1), or every five years using the procedures of 40 CFR §60.757(b)(1)(ii), as applicable, and submit the non-methane organic compound emissions rate report within 90 days of exceeding 2.5 million megagrams and 2.5 million cubic meters and annually thereafter, or every five years in accordance with 40 CFR §60.757(b); and(3) all records in accordance with the provisions of 40 CFR §60.758, Recordkeeping Requirements.(d) A semiannual compliance report must be submitted to the Texas Commission on Environmental Quality's Office of Compliance and Enforcement, in accordance with the provisions of 40 CFR §63.1981.(e) Records must be maintained at the site and made available at the request of representatives of the executive director, the United States Environmental Protection Agency, or any local air pollution control program having jurisdiction over the site.(f) Records must be retained for at least 60 months.</content><note type="source"><p>Source Note: The provisions of this §330.995 adopted to be effective March 27, 2006, 31 TexReg 2502; amended to be effective November 17, 2024, 49 TexReg 8930.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c331"><num value="331">CHAPTER 331</num><heading>UNDERGROUND INJECTION CONTROL</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c331/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.1"><num value="331.1">§331.1</num><heading>Purpose, Scope, and Applicability</heading><content>(a) The purpose of this chapter is to implement the provisions of the Injection Well Act, Texas Water Code, Chapter 27, as it applies to the commission. The implementation shall be consistent with the policy of this state to: maintain the quality of fresh water in the state to the extent consistent with the public health and welfare and the operation of existing industries, taking into consideration the economic development of the state; prevent underground injection that may pollute fresh water; and require the use of all reasonable methods to implement this policy.(b) This chapter applies to all injection wells and activities within the commission's jurisdiction.(c) Exemptions from the prohibition of injection of hazardous waste authorized by 40 Code of Federal Regulations Part 148 are not within the scope of the commission's jurisdiction.</content><note type="source"><p>Source Note: The provisions of this §331.1 adopted to be effective May 13, 1986, 11 TexReg 1980; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective September 12, 2002, 27 TexReg 8591.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.2"><num value="331.2">§331.2</num><heading>Definitions</heading><content>General definitions can be found in Chapter 3 of this title (relating to Definitions). The following words and terms, when used in this chapter, have the following meanings.(1) Abandoned well--A well which has been permanently discontinued from use or a well for which, after appropriate review and evaluation by the commission, there is no reasonable expectation of a return to service. (2) Activity--The construction or operation of any of the following: (A) an injection well for disposal of waste; (B) an injection or production well for the recovery of minerals; (C) a monitor well at a Class III injection well site; or(D) any other class of injection well regulated by the commission. (3) Affected person--Any person who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the proposed injection operation for which a permit is sought. (4) Annulus--The space in the wellbore between the injection tubing and the long string casing and/or liner. (5) Annulus pressure differential--The difference between the annulus pressure and the injection pressure in an injection well. (6) Aquifer--A geological formation, group of formations, or part of a formation that is capable of yielding a significant amount of water to a well or spring. (7) Aquifer recharge project--A project involving the intentional recharge of an aquifer by means of an injection well authorized under this chapter or other means of infiltration, including actions designed to:(A) reduce declines in the water level of the aquifer;(B) supplement the quantity of groundwater available;(C) improve water quality in an aquifer;(D) improve spring flows and other interactions between groundwater and surface water; or(E) mitigate subsidence.(8) Aquifer restoration--The process used to achieve or exceed water quality levels established by the commission for a permit/production area. (9) Aquifer storage and recovery--The injection of water into a geologic formation, group of formations, or part of a formation that is capable of underground storage of water for later retrieval and beneficial use. (10) Aquifer storage and recovery injection well--A Class V injection well used for the injection of water into a geologic formation as part of an aquifer storage and recovery project.(11) Aquifer storage and recovery production well--A well used for the production of water from a geologic formation as part of an aquifer storage and recovery project.(12) Aquifer storage and recovery project--A project involving the injection of water into a geologic formation for the purpose of subsequent recovery and beneficial use by the project operator. (13) Area of review--The area surrounding an injection well described according to the criteria set forth in §331.42 of this title (relating to Area of Review) or in the case of an area permit, the project area plus a circumscribing area the width of which is either 1/4 mile or a number calculated according to the criteria set forth in §331.42 of this title. (14) Area permit--A permit that authorizes the construction and operation of two or more similar injection, production, or monitoring wells used in operations associated with Class III well activities within a specified area. (15) Artificial liner--The impermeable lining of a pit, lagoon, pond, reservoir, or other impoundment, that is made of a synthetic material such as butyl rubber, chlorosulfonated polyethylene, elasticized polyolefin, polyvinyl chloride (PVC), other manmade materials, or similar materials. (16) Baseline quality--The parameters and their concentrations that describe the local groundwater quality of an aquifer prior to the beginning of injection operations. (17) Baseline well--A well from which groundwater is analyzed to define baseline quality in the permit area (regional baseline well) or in the production area (production area baseline well). (18) Bedded salt--A geologic formation, group of formations, or part of a formation consisting of non-domal salt that is layered and may be interspersed with non-salt sedimentary materials such as anhydrite, shale, dolomite, and limestone. The salt layers themselves often contain significant impurities. (19) Bedded salt cavern disposal well--A well or group of wells and connecting storage cavities which have been created by solution mining, dissolving or excavation of salt bearing deposits or other geological formations and subsequently developed for the purpose of disposal of nonhazardous drinking water treatment residuals. (20) Blanket material or blanket pad--A fluid placed within a salt cavern that is lighter than the water in the cavern and will not dissolve the salt or any mineral impurities that may be contained within the salt. The function of the blanket is to prevent unwanted leaching of the salt cavern roof, prevent leaching of salt from around the cemented casing, and to protect the cemented casing from internal corrosion. Blanket material typically consists of crude oil, mineral oil, or some fluid possessing similar noncorrosive, nonsoluble, low density properties. The blanket material is placed between the salt cavern's outermost hanging string and innermost cemented casing. (21) Buffer area--The area between any mine area boundary and the permit area boundary. (22) Caprock--A geologic formation typically overlying the crest and sides of a salt stock. The caprock consists of a complex assemblage of minerals including calcite (CaCO3 ), anhydrite (CaSO4 ), and accessory minerals. Caprocks often contain lost circulation zones characterized by rock layers of high porosity and permeability. (23) Captured facility--A manufacturing or production facility that generates an industrial solid waste or hazardous waste that is routinely stored, processed, or disposed of on a shared basis in an integrated waste management unit owned, operated by, and located within a contiguous manufacturing complex. (24) Casing--Material lining used to seal off strata at and below the earth's surface. (25) Cement--A substance generally introduced as a slurry into a wellbore which sets up and hardens between the casing and borehole and/or between casing strings to prevent movement of fluids within or adjacent to a borehole, or a similar substance used in plugging a well. (26) Cementing--The operation whereby cement is introduced into a wellbore and/or forced behind the casing. (27) Cesspool--A drywell that receives untreated sanitary waste containing human excreta, and which sometimes has an open bottom and/or perforated sides. (28) Commercial facility--A Class I permitted facility, where one or more commercial wells are operated. (29) Commercial underground injection control (UIC) Class I well facility--Any waste management facility that accepts, for a charge, hazardous or nonhazardous industrial solid waste for disposal in a UIC Class I injection well, except a captured facility or a facility that accepts waste only from other facilities owned or effectively controlled by the same person. (30) Commercial well--An underground injection control Class I injection well which disposes of hazardous or nonhazardous industrial solid wastes, for a charge, except for a captured facility or a facility that accepts waste only from facilities owned or effectively controlled by the same person. (31) Conductor casing or conductor pipe--A short string of large-diameter casing used to keep the top of the wellbore open during drilling operations. (32) Cone of influence--The potentiometric surface area around the injection well within which increased injection zone pressures caused by injection of wastes would be sufficient to drive fluids into an underground source of drinking water or freshwater aquifer. (33) Confining zone--A part of a formation, a formation, or group of formations between the injection zone and the lowermost underground source of drinking water or freshwater aquifer that acts as a barrier to the movement of fluids out of the injection zone. (34) Contaminant--Any physical, biological, chemical, or radiological substance or matter in water. (35) Control parameter--Any physical parameter or chemical constituent of groundwater monitored on a routine basis used to detect or confirm the presence of mining solutions in a designated monitor well. Monitoring includes measurement with field instrumentation or sample collection and laboratory analysis. (36) Desalination brine--The waste stream produced by a desalination operation containing concentrated salt water, other naturally occurring impurities, and additives used in the operation and maintenance of a desalination operation. (37) Desalination concentrate--Same as desalination brine. (38) Desalination operation--A process which produces water of usable quality by desalination. (39) Disposal well--A well that is used for the disposal of waste into a subsurface stratum. (40) Disturbed salt zone--Zone of salt enveloping a salt dome cavern, typified by increased values of permeability or other induced anomalous conditions relative to undisturbed salt which lies more distant from the salt dome cavern, and is the result of mining activities during salt dome cavern development and which may vary in extent through all phases of a cavern including the post-closure phase. (41) Drilling mud--A heavy suspension used in drilling an injection well, introduced down the drill pipe and through the drill bit. (42) Drinking water treatment residuals--Materials generated, concentrated or produced as a result of treating water for human consumption. (43) Drywell--A well, other than an improved sinkhole or subsurface fluid distribution system, completed above the water table so that its bottom and sides are typically dry except when receiving fluids. (44) Enhanced oil recovery project (EOR)--The use of any process for the displacement of oil from the reservoir other than primary recovery and includes the use of an immiscible, miscible, chemical, thermal, or biological process. This term does not include pressure maintenance or water disposal projects. (45) Excursion--The movement of mining solutions, as determined by analysis for control parameters, into a designated monitor well. (46) Existing injection well--A Class I well which was authorized by an approved state or United States Environmental Protection Agency-administered program before August 25, 1988, or a well which has become a Class I well as a result of a change in the definition of the injected waste which would render the waste hazardous under §335.1 of this title (relating to Definitions). (47) Fluid--Material or substance which flows or moves whether in a semisolid, liquid, sludge, gas, or any other form or state. (48) Formation--A body of rock characterized by a degree of lithologic homogeneity which is prevailingly, but not necessarily, tabular and is mappable on the earth's surface or traceable in the subsurface. (49) Formation fluid--Fluid present in a formation under natural conditions. (50) Fresh water--Water having bacteriological, physical, and chemical properties which make it suitable and feasible for beneficial use for any lawful purpose. (A) For the purposes of this chapter, it will be presumed that water is suitable and feasible for beneficial use for any lawful purpose only if: (i) it is used as drinking water for human consumption; or (ii) the groundwater contains fewer than 10,000 milligrams per liter (mg/L) total dissolved solids; and (iii) it is not an exempted aquifer. (B) This presumption may be rebutted upon a showing by the executive director or an affected person that water containing greater than or equal to 10,000 mg/L total dissolved solids can be put to a beneficial use. (51) General permit--A permit issued under the provisions of this chapter authorizing the disposal of nonhazardous desalination concentrate and nonhazardous drinking water treatment residuals as provided by Texas Water Code, §27.025. (52) Groundwater--Water below the land surface in a zone of saturation. (53) Groundwater protection area--A geographic area (delineated by the state under federal Safe Drinking Water Act, 42 United States Code, §300j-13) near and/or surrounding community and non-transient, non-community water systems that use groundwater as a source of drinking water. (54) Hazardous waste--Hazardous waste as defined in §335.1 of this title (relating to Definitions). (55) Improved sinkhole--A naturally occurring karst depression or other natural crevice found in carbonate rocks, volcanic terrain, and other geologic settings which has been modified by man for the purpose of directing and emplacing fluids into the subsurface. (56) Individual permit--A permit, as defined in the Texas Water Code (TWC), §27.011 and §27.021, issued by the commission or the executive director to a specific person or persons in accordance with the procedures prescribed in the TWC, Chapter 27 (other than TWC, §27.025). (57) Injection interval--That part of the injection zone in which the well is authorized to be screened, perforated, or in which the waste is otherwise authorized to be directly emplaced.(58) Injection operations--The subsurface emplacement of fluids occurring in connection with an injection well or wells, other than that occurring solely for construction or initial testing. (59) Injection well--A well into which fluids are being injected. Components of an injection well annulus monitoring system are considered to be a part of the injection well. (60) Injection zone--A formation, a group of formations, or part of a formation that receives fluid through a well. (61) In service--The operational status when an authorized injection well is capable of injecting fluids, including times when the well is shut-in and on standby status. (62) Intermediate casing--A string of casing with diameter intermediate between that of the surface casing and that of the smaller long-string or production casing, and which is set and cemented in a well after installation of the surface casing and prior to installation of the long-string or production casing. (63) Large capacity cesspool--A cesspool that is designed for a flow of greater than 5,000 gallons per day. (64) Large capacity septic system--A septic system that is designed for a flow of greater than 5,000 gallons per day. (65) Licensed professional geoscientist--A geoscientist who maintains a current license through the Texas Board of Professional Geoscientists in accordance with its requirements for professional practice. (66) Liner--An additional casing string typically set and cemented inside the long string casing and occasionally used to extend from base of the long string casing to or through the injection zone. (67) Long string casing or production casing--A string of casing that is set inside the surface casing and that usually extends to or through the injection zone. (68) Lost circulation zone--A term applicable to rotary drilling of wells to indicate a subsurface zone which is penetrated by a wellbore, and which is characterized by rock of high porosity and permeability, into which drilling fluids flow from the wellbore to the degree that the circulation of drilling fluids from the bit back to ground surface is disrupted or "lost." (69) Mine area--The area defined by a line through the ring of designated monitor wells installed to monitor the production zone. (70) Mine plan--A plan for operations at a mine, consisting of: (A) a map of the permit area identifying the location and extent of existing and proposed production areas; and (B) an estimated schedule indicating the sequence and timetable for mining and any required aquifer restoration. (71) Monitor well--Any well used for the sampling or measurement with field instrumentation of any chemical or physical property of subsurface strata or their contained fluids. The term "monitor well" shall have the same meaning as the term "monitoring well" as defined in Texas Water Code, §27.002. (A) Designated monitor wells are those listed in the production area authorization for which routine water quality sampling or measurement with field instrumentation is required. (B) Secondary monitor wells are those wells in addition to designated monitor wells, used to delineate the horizontal and vertical extent of mining solutions. (C) Pond monitor wells are wells used in the subsurface surveillance system near ponds or other pre-injection units. (72) Motor vehicle waste disposal well--A well used for the disposal of fluids from vehicular repair or maintenance activities including, but not limited to, repair and maintenance facilities for cars, trucks, motorcycles, boats, railroad locomotives, and airplanes. (73) Native groundwater--Groundwater naturally occurring in a geologic formation.(74) New injection well--Any well, or group of wells, not an existing injection well. (75) New waste stream--A waste stream not permitted. (76) Non-commercial facility--A Class I permitted facility which operates only non-commercial wells. (77) Non-commercial underground injection control (UIC) Class I well facility--A UIC Class I permitted facility where only non-commercial wells are operated. (78) Non-commercial well--An underground injection control Class I injection well which disposes of wastes that are generated on-site, at a captured facility or from other facilities owned or effectively controlled by the same person. (79) Notice of change (NOC)--A written submittal to the executive director from a permittee authorized under a general permit providing changes to information previously provided to the agency, or any changes with respect to the nature or operations of the facility, or the characteristics of the waste to be injected. (80) Notice of intent (NOI)--A written submittal to the executive director requesting coverage under the terms of a general permit. (81) Off-site--Property which cannot be characterized as on-site. (82) On-site--The same or geographically contiguous property which may be divided by public or private rights-of-way, provided the entrance and exit between the properties is at a cross-roads intersection, and access is by crossing, as opposed to going along, the right-of-way. Noncontiguous properties owned by the same person but connected by a right-of-way which the owner controls and to which the public does not have access, is also considered on-site property. (83) Out of service--The operational status when a well is not authorized to inject fluids, or the well itself is incapable of injecting fluids for mechanical reasons, maintenance operations, or well workovers or when injection is prohibited due to the well's inability to comply with the in-service operating standards of this chapter. (84) Permit area--The area owned or under lease by the permittee which may include buffer areas, mine areas, and production areas. (85) Plugging--The act or process of stopping the flow of water, oil, or gas into or out of a formation through a borehole or well penetrating that formation. (86) Point of injection--For a Class V well, the last accessible sampling point prior to fluids being released into the subsurface environment. (87) Pollution--The contamination of water or the alteration of the physical, chemical, or biological quality of water: (A) that makes it harmful, detrimental, or injurious: (i) to humans, animal life, vegetation, or property; or (ii) to public health, safety, or welfare; or (B) that impairs the usefulness or the public enjoyment of the water for any lawful and reasonable purpose. (88) Pre-injection units--The on-site above-ground appurtenances, structures, equipment, and other fixtures including the injection pumps, filters, tanks, surface impoundments, and piping for wastewater transmission between any such facilities and the well that are or will be used for storage or processing of waste to be injected, or in conjunction with an injection operation. (89) Production area--The area defined by a line generally through the outer perimeter of injection and recovery wells used for mining. (90) Production area authorization--An authorization, issued under the terms of a Class III injection well area permit, approving the initiation of mining activities in a specified production area within a permit area, and setting specific conditions for production and restoration in each production area within an area permit. (91) Production well--A well used to recover uranium through in situ solution recovery, including an injection well used to recover uranium. The term does not include a well used to inject waste. (92) Production zone--The stratigraphic interval extending vertically from the shallowest to the deepest stratum into which mining solutions are authorized to be introduced. (93) Project operator--A person holding an authorization by rule, individual permit, or general permit to undertake an aquifer storage and recovery project or an aquifer recharge project.(94) Public water system--A system for the provision to the public of water for human consumption through pipes or other constructed conveyances as defined in §290.38 of this title (relating to Definitions). (95) Radioactive waste--Any waste which contains radioactive material in concentrations which exceed those listed in 10 Code of Federal Regulations Part 20, Appendix B, Table II, Column 2, and as amended. (96) Recharge injection well--A Class V injection well used for the injection of water into a geologic formation for an aquifer recharge project, including an improved sinkhole or cave connected to an aquifer.(97) Registered Well--A well registered in accordance with the requirements of §331.221 of this title (relating to Registration of Wells). (98) Restoration demonstration--A test or tests conducted by a permittee to simulate production and restoration conditions and verify or modify the fluid handling values submitted in the permit application. (99) Restored aquifer--An aquifer whose local groundwater quality, within a production area, has, by natural or artificial processes, returned to the restoration table values established in accordance with the requirements of §331.107 of this title (relating to Restoration). (100) Salt cavern--A hollowed-out void space that has been purposefully constructed within a salt formation, typically by means of solution mining by circulation of water from a well or wells connected to the surface. (101) Salt cavern disposal well--For the purposes of this chapter, regulations of the commission, and not to underground injection control (UIC) Class II or UIC Class III wells in salt caverns regulated by the Railroad Commission of Texas, a salt cavern disposal well is a type of UIC Class I injection well used: (A) to solution mine a waste storage or disposal cavern in naturally occurring salt; and/or (B) to inject nonhazardous, industrial, or municipal waste into a salt cavern for the purpose of storage or disposal of the waste. (102) Salt dome--A geologic structure that includes the caprock, salt stock, and deformed strata surrounding the salt stock. (103) Salt dome cavern confining zone--A zone between the salt dome cavern injection zone and all underground sources of drinking water and freshwater aquifers, that acts as a barrier to movement of waste out of a salt dome cavern injection zone, and consists of the entirety of the salt stock excluding any portion of the salt stock designated as an underground injection control (UIC) Class I salt dome cavern injection zone or any portion of the salt stock occupied by a UIC Class II or Class III salt dome cavern or its disturbed salt zone. (104) Salt dome cavern injection interval--That part of a salt dome cavern injection zone consisting of the void space of the salt dome cavern into which waste is stored or disposed of, or which is capable of receiving waste for storage or disposal. (105) Salt dome cavern injection zone--The void space of a salt dome cavern that receives waste through a well, plus that portion of the salt stock enveloping the salt dome cavern, and extending from the boundaries of the cavern void outward a sufficient thickness to contain the disturbed salt zone, and an additional thickness of undisturbed salt sufficient to ensure that adequate separation exists between the outer limits of the injection zone and any other activities in the domal area. (106) Salt stock--A geologic formation consisting of a relatively homogeneous mixture of evaporite minerals dominated by halite (NaCl) that has migrated from originally tabular beds into a vertical orientation. (107) Sanitary waste--Liquid or solid waste originating solely from humans and human activities, such as wastes collected from toilets, showers, wash basins, sinks used for cleaning domestic areas, sinks used for food preparation, clothes washing operations, and sinks or washing machines where food and beverage serving dishes, glasses, and utensils are cleaned. (108) Septic system--A well that is used to emplace sanitary waste below the surface, and is typically composed of a septic tank and subsurface fluid distribution system or disposal system. (109) Stratum--A sedimentary bed or layer, regardless of thickness, that consists of generally the same kind of rock or material. (110) Subsurface fluid distribution system--An assemblage of perforated pipes, drain tiles, or other similar mechanisms intended to distribute fluids below the surface of the ground. This definition includes subsurface area drip dispersal systems as defined in §222.5 of this title (relating to Definitions). (111) Surface casing--The first string of casing (after the conductor casing, if any) that is set in a well. (112) Temporary injection point--A method of Class V injection that uses push point technology (injection probes pushed into the ground) for the one-time injection of fluids into or above an underground source of drinking water. (113) Total dissolved solids--The total dissolved (filterable) solids as determined by use of the method specified in 40 Code of Federal Regulations Part 136, as amended. (114) Transmissive fault or fracture--A fault or fracture that has sufficient permeability and vertical extent to allow fluids to move between formations.(115) Underground injection--The subsurface emplacement of fluids through a well. (116) Underground injection control--The program under the federal Safe Drinking Water Act, 42 United States Code, Part C, including the approved Texas state program. (117) Underground source of drinking water--An "aquifer" or its portions: (A) which supplies drinking water for human consumption; or (B) in which the groundwater contains fewer than 10,000 milligrams per liter total dissolved solids; and (C) which is not an exempted aquifer. (118) Upper limit--A parameter value established by the commission in a permit/production area authorization which when exceeded indicates mining solutions may be present in designated monitor wells.(119) Verifying analysis--A second sampling and analysis or measurement with instrumentation of control parameters for the purpose of confirming a routine sample analysis or measurement which indicated an increase in any control parameter to a level exceeding the upper limit. Mining solutions are assumed to be present in a designated monitor well if a verifying analysis confirms that any control parameter in a designated monitor well is present in concentration equal to or greater than the upper limit value. (120) Well--A bored, drilled, or driven shaft whose depth is greater than the largest surface dimension, a dug hole whose depth is greater than the largest surface dimension, an improved sinkhole, or a subsurface fluid distribution system but does not include any surface pit, surface excavation, or natural depression. (121) Well injection--The subsurface emplacement of fluids through a well. (122) Well monitoring--The measurement by on-site instruments or laboratory methods of any chemical, physical, radiological, or biological property of the subsurface strata or their contained fluids penetrated by the wellbore. (123) Well stimulation--Several processes used to clean the well bore, enlarge channels, and increase pore space in the injection interval, thus making it possible for fluid to move more readily into the formation including, but not limited to, surging, jetting, and acidizing. (124) Workover--An operation in which a down-hole component of a well is repaired, the engineering design of the well is changed, or the mechanical integrity of the well is compromised. Workovers include operations such as sidetracking, the addition of perforations within the permitted injection interval, and the addition of liners or patches. For the purposes of this chapter, workovers do not include well stimulation operations.</content><note type="source"><p>Source Note: The provisions of this §331.2 adopted to be effective May 13, 1986, 11 TexReg 1980; amended to be effective July 5, 1989, 14 TexReg 3047; amended to be effective June 22, 1992, 17 TexReg 4097; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective June 28, 1996, 21 TexReg 5443; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective July 12, 2001, 26 TexReg 5019; amended to be effective January 9, 2003, 28 TexReg 340; amended to be effective October 2, 2003, 28 TexReg 8367; amended to be effective September 16, 2004, 29 TexReg 8824;amended to be effective July 5, 2006, 31 TexReg 5339; amended to be effective July 10, 2008, 33 TexReg 5342; amended to be effective March 12, 2009, 34 TexReg 1638; amended to be effective August 16, 2012, 37 TexReg 6078; amended to be effective May 19, 2016, 41 TexReg 3513; amended to be effective May 28, 2020, 45 TexReg 3458; amended to be effective January 7, 2021, 46 TexReg 191.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.3"><num value="331.3">§331.3</num><heading>Injection Prohibited</heading><content>(a) Unless excluded under subsection (b) of this section, the construction of an injection well, the conversion of a well into an injection well, and the use or operation of an injection well is prohibited unless authorized by an injection well permit, order, or rule of the commission. A RCRA permit applying the standards of Chapter 335, Subchapter F of this title (relating to Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities) will constitute an underground injection control (UIC) permit for hazardous waste injection wells for which the technical standards of this chapter are not generally appropriate.(b) The following activities are not within the scope of subsection (a) of this section:(1) injection of waste into subsurface strata via a single family residential cesspool or other device that receives waste, which has an open bottom or perforated sides;(2) injection of waste into subsurface strata via a septic system well used for single family residential waste disposal.(c) This rule does not limit the authority of the commission to abate and prevent pollution of fresh water resulting from any injection activity by requiring a permit, by instituting appropriate enforcement action, or by other appropriate action.</content><note type="source"><p>Source Note: The provisions of this §331.3 adopted to be effective May 13, 1986, 11 TexReg 1980; amended to be effective August 4, 1989, 14 TexReg 3531; amended to be effective November 23, 2000, 25 TexReg 11433.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.4"><num value="331.4">§331.4</num><heading>Mechanical Integrity Required</heading><content>Injection is prohibited for Class I and III wells which lack mechanical integrity, the result of which may pollute an underground source of drinking water. Except where excluded in the case of authorization by rule, mechanical integrity under §331.43 of this title (relating to Mechanical Integrity Standards) must be demonstrated to the satisfaction of the executive director before operation begins. Injection may be prohibited for Class V wells which lack mechanical integrity. The executive director may require a demonstration of mechanical integrity at any time if there is reason to believe mechanical integrity is lacking. When the executive director determines that a Class I or III well lacks mechanical integrity, the executive director shall give written notice of this determination to the owner or operator. Unless the executive director requires immediate cessation, the owner or operator shall cease injection into the well within 48 hours of receipt of the executive director's determination. The executive director may allow plugging of the well or require the permittee to perform additional construction, operation, monitoring, reporting, and corrective actions which are necessary to prevent the movement of fluid into or between underground sources of drinking water caused by the lack of mechanical integrity. The owner or operator may resume injection upon written notification from the executive director that the owner or operator has demonstrated mechanical integrity.</content><note type="source"><p>Source Note: The provisions of this §331.4 adopted to be effective May 13, 1986, 11 TexReg 1980; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective November 23, 2000, 25 TexReg 11433.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.5"><num value="331.5">§331.5</num><heading>Prevention of Pollution</heading><content>(a) No permit or authorization by rule shall be allowed where an injection well causes or allows the movement of fluid that would result in the pollution of an underground source of drinking water. A permit or authorization by rule shall include terms and conditions reasonably necessary to protect fresh water from pollution.(b) Persons authorized to conduct underground injection activities under this chapter shall address unauthorized discharges of chemicals of concern (COCs) from associated tankage and equipment according to the requirements of Chapter 350 of this title (relating to the Texas Risk Reduction Program).(c) Pre-injection units must be designed, constructed, operated, maintained, monitored, and closed so as not to cause:(1) the discharge or imminent threat of discharge of waste into or adjacent to the waters in the state without obtaining specific authorization for such a discharge from the commission;(2) the creation or maintenance of a nuisance; or(3) the endangerment of the public health and welfare.</content><note type="source"><p>Source Note: The provisions of this §331.5 adopted to be effective May 13, 1986, 11 TexReg 1980; amended to be effective September 23, 1999, 24 TexReg 7416; amended to be effective January 9, 2003, 28 TexReg 340; amended to be effective January 7, 2021, 46 TexReg 191.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.6"><num value="331.6">§331.6</num><heading>Prohibition of Class IV Well Injection</heading><content>The injection of hazardous fluids or radioactive wastes into or above a formation which within one quarter mile of the well contains an underground source of drinking water is prohibited. Wells used to inject hazardous waste-contaminated ground water that is of acceptable quality to aid remediation and is being reinjected into the same formation from which it was drawn are not prohibited by this section if such injection is approved by the commission pursuant to provisions for cleanup of releases consistent with federal regulations under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 United States Code (USC) 9601-9657, or pursuant to provisions for cleanup of releases consistent with federal regulations under the Resource Conservation and Recovery Act (RCRA), 42 USC 6901 through 6987.</content><note type="source"><p>Source Note: The provisions of this §331.6 adopted to be effective May 13, 1986, 11 TexReg 1980; amended to be effective June 13, 1996, 21 TexReg 5000.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.7"><num value="331.7">§331.7</num><heading>Permit Required</heading><content>(a) Except as provided in §331.9 of this title (relating to Injection Authorized by Rule) and by subsections (d) and (e) of this section, all injection wells and activities must be authorized by an individual permit.(b) For Class III in situ uranium solution mining wells, Frasch sulfur wells, and other Class III operations under commission jurisdiction, an area permit authorizing more than one well may be issued for a defined permit area in which wells of similar design and operation are proposed. The wells must be operated by a single owner or operator. Before commencing operation of those wells, the permittee may be required to obtain a production area authorization for separate production or mining areas within the permit area. (c) The owner or operator of a large capacity septic system, a septic system which accepts industrial waste, or a subsurface area drip dispersal system, as defined in §222.5 of this title (relating to Definitions) must obtain a wastewater discharge permit in accordance with Texas Water Code, Chapter 26 or Chapters 26 and 32, and Chapter 305 of this title (relating to Consolidated Permits), and must submit the inventory information required under §331.10 of this title (relating to Inventory of Wells Authorized by Rule). (d) The commission may issue a general permit under Subchapter L of this chapter. The commission may determine that an injection well and the injection activities are more appropriately regulated under an individual permit than under a general permit based on findings that the general permit will not protect ground and surface fresh water from pollution due to site-specific conditions. (e) Regardless of subsection (a) of this section, an injection well authorized by the Railroad Commission of Texas to use nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals as an injection fluid for enhanced recovery purposes does not require a permit from the commission. The use or disposal of radioactive material under this subsection is subject to the applicable requirements of Chapter 336 of this title. (f) Permits issued before September 1, 2007 for Class III wells for uranium mining will expire on September 1, 2012 unless the permit holder submits an application for permit renewal under §305.65 of this title (relating to Renewal) before September 1, 2012. Any holders of permits for Class III wells for uranium mining issued before September 1, 2007 who allow those permits to expire by not submitting a permit renewal application by September 1, 2012 are not relieved from the obligations under the expired permit or applicable rules, including obligations to restore groundwater and to plug and abandon wells in accordance with the requirements of the permit and applicable rules.(g) Class V injection wells associated with an aquifer storage and recovery (ASR) project or an aquifer recharge project may be authorized by individual permit, general permit, or by rule. The executive director will notify a groundwater conservation district of an ASR project proposed to be authorized by rule that is located within the jurisdictional boundary of that groundwater conservation district.</content><note type="source"><p>Source Note: The provisions of this §331.7 adopted to be effective May 13, 1986, 11 TexReg 1980; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective July 12, 2001, 26 TexReg 5019; amended to be effective January 9, 2003, 28 TexReg 340; amended to be effective July 5, 2006, 31 TexReg 5339; amended to be effective July 10, 2008, 33 TexReg 5342; amended to be effective March 12, 2009, 34 TexReg 1638; amended to be effective May 19, 2016, 41 TexReg 3513; amended to be effective May 28, 2020, 45 TexReg 3458; amended to be effective January 7, 2021, 46 TexReg 191.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.8"><num value="331.8">§331.8</num><heading>Prohibition of Motor Vehicle Waste Disposal Wells and Large Capacity Cesspools</heading><content>(a) The construction of new motor vehicle waste disposal wells and large capacity cesspools is prohibited.(b) The owner or operator of a motor vehicle waste disposal well in a groundwater protection area must close the well within one year after designation of the groundwater protection area, or by January 1, 2005, whichever occurs earlier, or apply for a Class V underground injection control (UIC) permit prior to the closure date.(1) The owner or operator of a motor vehicle waste disposal well located in a groundwater protection area may be granted an extension to the closure deadline by the executive director for up to one year if the most efficient compliance option for the well is connection to a sanitary sewer or installation of new treatment technology.(2) To continue operating during the extension period, the owner or operator must ensure that the injectate meets primary maximum contaminant levels for drinking water and other health-based standards at the point of injection.(c) The owner or operator of a motor vehicle waste disposal well in any area of the state other than a groundwater protection area, must close the well by January 1, 2007; apply for a Class V UIC permit from the executive director under §331.137 of this title (relating to Class V Well Permit), prior to the closure date; or convert the well in accordance with §331.12 of this title (relating to Conversion of Wells) so that it is not receiving motor vehicle waste.(d) The owner or operator of an existing motor vehicle waste disposal well must close the well in accordance with closure standards specified in §331.136 of this title (relating to Closure Standards for Motor Vehicle Waste Disposal Wells, Large Capacity Septic Systems, Large Capacity Cesspools, Subsurface Fluid Distribution Systems, and Drywells).(e) All existing large capacity cesspools must be closed. The owner or operator of an existing large capacity cesspool must close the well in accordance with closure standards in §331.136 of this title.</content><note type="source"><p>Source Note: The provisions of this §331.8 adopted to be effective July 12, 2001, 26 TexReg 5019.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.9"><num value="331.9">§331.9</num><heading>Injection Authorized by Rule</heading><content>(a) Plugging and abandonment of a well authorized by rule at any time after January 1, 1982, shall be accomplished in accordance with the standards of §331.46 of this title (relating to Closure Standards). Class V wells shall be closed according to standards under §331.133 of this title (relating to Closure Standards for Injection Wells). Motor vehicle waste disposal wells, large capacity septic systems, large capacity cesspools, subsurface fluid distribution systems, and drywells shall be closed according to standards under §331.136 of this title (relating to Closure Standards for Motor Vehicle Waste Disposal Wells, Large Capacity Septic Systems, Large Capacity Cesspools, Subsurface Fluid Distribution Systems, and Drywells).(b) Injection into Class V wells, unless otherwise provided in subsection (c) of this section, §331.7 of this title (relating to Permit Required), or §331.137 of this title (relating to Permit for Motor Vehicle Waste Disposal Wells), is authorized under this rule.(1) Well authorization under this section expires upon the effective date of a permit issued under §331.7 of this title.(2) An owner or operator of a Class V well is prohibited from injecting into the well:(A) upon the effective date of permit denial;(B) upon failure to submit a permit application in a timely manner under subsection (c) of this section;(C) upon failure to submit inventory information in a timely manner under §331.10 of this title (relating to Inventory of Wells Authorized by Rule);(D) upon failure to comply with a request for information from the executive director in a timely manner;(E) upon failure to comply with provisions contained in Subchapter H of this chapter (relating to Standards for Class V Wells) and, if applicable, Subchapter K of this chapter (relating to Additional Requirements for Class V Injection Wells Associated with Aquifer Storage and Recovery Projects) or Subchapter O of this chapter (relating to Additional Requirements for Class V Injection Wells Associated with Aquifer Recharge Projects); or(F) upon failure of the owner or operator to comply with provisions contained in paragraph (3) of this subsection for a Class V well that is authorized to inject certain wastes into a Class II disposal well permitted by the Railroad Commission of Texas.(3) Unless otherwise provided in subsection (c) of this section, a disposal well authorized by an active Class II permit issued by the Railroad Commission of Texas whose operator has an active Form P-5 Organization Report in good standing with the Railroad Commission of Texas may be authorized by rule of the commission as a Class V injection well for the disposal by injection of nonhazardous brine from a desalination operation or nonhazardous drinking water treatment residuals.(A) Subchapter H of this chapter and subsection (a) of this section are not applicable to a Class V well authorized by rule under this paragraph.(B) The use or disposal of radioactive material under this paragraph is subject to the applicable requirements of Chapter 336 of this title (relating to Radioactive Substance Rules).(c) The executive director may require the owner or operator of an injection well authorized by rule to apply for and obtain an injection well permit. The owner or operator shall submit a complete application within 90 days after the receipt of a letter from the executive director requesting that the owner or operator of an injection well submit an application for permit. Cases for which a permit may be required include, but are not limited to, wells not in compliance with the standards required by this section.(d) Class IV wells injecting hazardous waste-contaminated groundwater that is of acceptable quality to aid remediation and that is being reinjected into the same formation from which it was drawn, as authorized by §331.6 of this title (relating to Prohibition of Class IV Well Injection), shall be authorized by rule.</content><note type="source"><p>Source Note: The provisions of this §331.9 adopted to be effective May 13, 1986, 11 TexReg 1980; amended to be effective July 5, 1989, 14 TexReg 3047; amended to be effective May 9, 1990, 15 TexReg 2339; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective June 13, 1996, 21 TexReg 5000; amended to be effective January 10, 1997, 22 TexReg 58; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective June 25, 2000, 25 TexReg 5906; amended to be effective July 12, 2001, 26 TexReg 5019; amended to be effective July 5, 2006, 31 TexReg 5339; amended to be effective December 29, 2016, 41 TexReg 10386;amended to be effective May 28, 2020, 45 TexReg 3458.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.10"><num value="331.10">§331.10</num><heading>Inventory of Wells Authorized by Rule</heading><content>(a) The owner or operator of an injection well facility, except for those wells listed under subsection (b) of this section, must submit to the executive director prior to construction (or within one year after January 1, 1982 if the well existed on that date), an inventory for each facility containing:(1) the name of the facility;(2) the name and address of legal contact;(3) the ownership of the facility;(4) the nature, type and operating status of the injection well(s); and(5) the location, depth, and construction of each well.(b) Drillers of closed loop and air conditioning return flow injection wells authorized by rule shall inventory wells after construction by submitting the form provided by the executive director as required under §331.132(b)(3) of this title (relating to Construction Standards).(c) Failure to comply with this section shall constitute grounds for termination of authorization by rule.(d) Owners or operators of all Class V wells, with the exception of closed loop and air conditioning return flow wells, shall submit the inventory information required under subsection (a) of this section for review, modification, and approval by the executive director. The owner or operator of a Class V well must obtain approval from the executive director prior to construction, conversion, or operation of the well.(e) Owners and operators of subsurface fluid distribution systems and improved sinkholes in existence on the effective date of this rule must submit the inventory information for these Class V wells to the executive director within one year of the effective date of these rules. Owners and operators of new subsurface fluid distribution systems and improved sinkholes must submit inventory information as required under subsection (d) of this section.</content><note type="source"><p>Source Note: The provisions of this §331.10 adopted to be effective May 13, 1986, 11 TexReg 1980; amended to be effective July 5, 1989, 14 TexReg 3047; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective July 12, 2001, 26 TexReg 5019.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.11"><num value="331.11">§331.11</num><heading>Classification of Injection Wells</heading><content>(a) Injection wells within the jurisdiction of the commission are classified as follows.(1) Class I:(A) wells used by generators of hazardous wastes or owners or operators of hazardous waste management facilities to inject hazardous waste, other than Class IV wells;(B) other industrial and municipal waste disposal wells which inject fluids beneath the lower-most formation which within 1/4 mile of the wellbore contains an underground source of drinking water (USDW); and(C) radioactive waste disposal wells which inject fluids below the lower-most formation containing a USDW within 1/4 mile of the wellbore.(2) Class III. Wells which are used for the extraction of minerals, including:(A) mining of sulfur by the Frasch process; and(B) solution mining of minerals which includes sodium sulfate, sulfur, potash, phosphate, copper, uranium and any other minerals which can be mined by this process.(3) Class IV. Wells used by generators of hazardous wastes or of radioactive wastes, by owners or operators of hazardous waste management facilities, or by owners or operators of radioactive waste disposal sites to dispose of hazardous wastes or radioactive wastes into or above a formation which within 1/4 mile of the wellbore contains a USDW.(4) Class V. Class V wells are injection wells not included in Classes I, II, III, or IV. Generally, wells covered by this paragraph inject nonhazardous fluids into or above formations that contain USDWs. Except for Class V wells within the jurisdiction of the Railroad Commission of Texas, all Class V injection wells are within the jurisdiction of the commission and include, but are not limited to:(A) air conditioning return flow wells used to return to the supply aquifer the water used for heating or cooling in a heat pump;(B) large capacity cesspools or other devices that receive greater than 5,000 gallons of waste per day, which have an open bottom and sometimes have perforated sides;(C) cooling water return flow wells used to inject water previously used for cooling;(D) drainage wells used to drain surface fluid, primarily storm runoff, into a subsurface formation;(E) drywells used for the injection of wastes into a subsurface formation;(F) recharge wells used to replenish the water in an aquifer;(G) salt water intrusion barrier wells used to inject water into a freshwater aquifer to prevent the intrusion of salt water into the fresh water;(H) sand backfill wells used to inject a mixture of water and sand, mill tailings, or other solids into mined out portions of subsurface mines;(I) septic systems designed to inject greater than 5,000 gallons per day of waste or effluent;(J) subsidence control wells (not used for the purpose of oil or natural gas production) used to inject fluids into a non-oil or gas producing zone to reduce or eliminate subsidence associated with the overdraft of fresh water;(K) wells used for the injection of water for storage and subsequent retrieval for beneficial use as part of an aquifer storage and recovery project;(L) motor vehicle waste disposal wells which are used or have been used for the disposal of fluids from vehicular repair or maintenance activities, such as an automotive repair shop, auto body shop, car dealership, boat, motorcycle or airplane dealership, or repair facility;(M) improved sinkholes;(N) aquifer remediation wells, temporary injection points, and subsurface fluid distribution systems used to inject nonhazardous fluids into the subsurface to aid in the remediation of soil and groundwater; and(O) subsurface fluid distribution systems.(b) The Railroad Commission of Texas has jurisdiction over: Class II injection wells; Class III and Class V injection wells used for brine mining; injection wells used for the in situ recovery of tar sands; injection wells used for the exploration, development or production of geothermal energy, including closed-loop geothermal injection wells; and the injection and geologic storage of carbon dioxide.(c) Baseline wells and monitor wells associated with Class III injection wells within the jurisdiction of the commission are also subject to the rules specified in this chapter.</content><note type="source"><p>Source Note: The provisions of this §331.11 adopted to be effective May 13, 1986, 11 TexReg 1980; amended to be effective June 28, 1996, 21 TexReg 5443; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective June 25, 2000, 25 TexReg 5906; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective July 12, 2001, 26 TexReg 5019; amended to be effective March 29, 2006, 31 TexReg 2690; amended to be effective May 19, 2016, 41 TexReg 3513; amended to be effective June 9, 2022, 47 TexReg 3266; amended to be effective January 9, 2025, 50 TexReg 178.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.12"><num value="331.12">§331.12</num><heading>Conversion of Wells</heading><content>(a) Persons utilizing wells authorized by permit, rule, or otherwise, who wish to convert the well from its authorized purpose to a new or additional purpose must first obtain the appropriate approval described in paragraphs (1) - (4) of this section.(1) Persons utilizing injection wells authorized by permit must obtain either a permit amendment pursuant to §305.62 of this title (relating to Amendment), or if appropriate, a permit revocation pursuant to §305.66 of this title (relating to Permit Denial, Suspension, and Revocation) or §305.67 of this title (relating to Revocation and Suspension Upon Request or Consent).(2) Persons utilizing injection wells authorized by rule that are to be converted to a purpose that requires authorization by permit must obtain a permit.(3) Persons utilizing injection wells authorized by rule that are to be converted to a purpose that does not require authorization by permit must obtain the written approval of the executive director.(4) Prior to converting a Class V motor vehicle waste disposal well, the owner or operator must inventory the well with the executive director under §331.10 of this title (relating to Inventory of Wells Authorized by Rule) and comply with the conversion requirements under subsection (c) of this section.(b) Conversions of wells that remain exclusively within the jurisdiction of the Railroad Commission are not affected by this rule. For example, a conversion from a Class II disposal well to a water supply well regulated by the Railroad Commission would neither enter nor exit the jurisdiction of this agency and thus would not be subject to this rule.(c) In limited cases, the executive director may authorize the conversion of a motor vehicle waste disposal well to another type of Class V well.(1) The use of a semi-permanent plug as the means to segregate waste is not sufficient to convert a motor vehicle waste disposal well to another type of Class V well.(2) The executive director may approve the conversion only if:(A) the well is inventoried with the executive director under §331.10 of this title;(B) all motor vehicle fluids are segregated by physical barriers and are not allowed to enter the well; and(C) injection of motor vehicle waste is unlikely based on a facility's compliance history and records showing proper waste disposal.</content><note type="source"><p>Source Note: The provisions of this §331.12 adopted to be effective May 13, 1986, 11 TexReg 1980; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective July 12, 2001, 26 TexReg 5019.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.13"><num value="331.13">§331.13</num><heading>Exempted Aquifer</heading><content>(a) An exempted aquifer is an aquifer or a portion of an aquifer which meets the criteria for fresh water but which has been designated an exempted aquifer by the commission after notice and opportunity for public hearing. Those aquifers or portions of aquifers which were designated for exemption by the Texas Department of Water Resources in its original application for program approval submitted to the United States Environmental Protection Agency shall be considered to be exempted aquifers.(b) Except for injection authorized by rule, the commission may require a permit for injection into an exempted aquifer to protect fresh water outside the exempted aquifer which may be subject to pollution caused by the injection.(c) An aquifer or portion of an aquifer may be designated as an exempted aquifer if the following criteria are met:(1) It does not currently serve as a source of drinking water for human consumption; and(2) Until exempt status is removed according to procedures in subsection (f) of this section, it will not in the future serve as a source of drinking water for human consumption because:(A) It is mineral, hydrocarbon or geothermal energy bearing with production capability;(B) It is situated at a depth or location which makes recovery of water for drinking water purposes economically or technologically impractical;(C) It is so contaminated that it would be economically or technologically impractical to render that water fit for human consumption; or,(D) It is located above a Class III well mining area subject to subsidence or catastrophic collapse.(d) No designation of an exempted aquifer submitted as part of a UIC Program shall be final until approved by the EPA as part of the delegated UIC program.(e) Subsequent to program approval or promulgation, the commission may, after notice and opportunity for a public hearing, identify additional exempted aquifers. The commission delegates to the executive director the authority to designate an exempt aquifer under this section if no request for a public hearing is received within the designated comment period provided in the public notice.(f) After notice and opportunity for public hearing, the designation of exempted aquifer may be removed by the commission thereby eliminating the exempt status, provided restoration has been accomplished if required.</content><note type="source"><p>Source Note: The provisions of this §331.13 adopted to be effective May 13, 1986, 11 TexReg 1980; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective March 12, 2009, 34 TexReg 1638.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.14"><num value="331.14">§331.14</num><heading>Prohibition of Disposal of Certain Wastes into Certain Geological Formations</heading><content>(a) Notwithstanding any provision to the contrary in this chapter, Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), or any other chapter of this title, the storage, processing, or disposal of hazardous waste in a solution-mined salt dome cavern, bedded salt cavern, or a sulphur mine is prohibited.(b) Waste streams other than nonhazardous drinking water treatment residuals are prohibited from injection into a Class I salt cavern disposal well located in horizontally bedded or non-domal salt and its associated salt cavern.</content><note type="source"><p>Source Note: The provisions of this §331.14 adopted to be effective June 22, 1992, 17 TexReg 4097; amended to be effective May 30, 2002, 27 TexReg 4576; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.15"><num value="331.15">§331.15</num><heading>Financial Assurance Required</heading><content>Injection is prohibited for Class I and III wells which lack financial assurance, as required by this chapter.</content><note type="source"><p>Source Note: The provisions of this §331.15 adopted to be effective January 2, 1995, 19 TexReg 10099.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.16"><num value="331.16">§331.16</num><heading>Memorandum of Understanding Between the Texas Department of Health and the Texas Natural Resource Conservation Commission Regarding Radiation Control Functions</heading><content>The Memorandum of Understanding between the Texas Department of Health and the Texas Natural Resource Conservation Commission Regarding Radiation Control Functions, effective November 30, 1998, is adopted by reference in §7.118 of this title (relating to Memorandum of Understanding between the Texas Department of Health and the Texas Natural Resource Conservation Commission Regarding Radiation Control Functions). However, the full text of the memorandum of understanding can be found only in Texas Department of Health rule 25 TAC §289.101 (relating to Memorandum of Understanding between the Texas Department of Health and the Texas Natural Resource Conservation Commission Regarding Radiation Control Functions). If a copy of this document is required and cannot be obtained from the Internet, a copy can be requested from the Texas Natural Resource Conservation Commission, Chief Clerk's Office, P.O. Box 13087, Austin, Texas 78711-3087, (512) 239-3300.</content><note type="source"><p>Source Note: The provisions of this §331.16 adopted to be effective November 29, 1998, 23 TexReg 11826; amended to be effective November 23, 2000, 25 TexReg 11433.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.19"><num value="331.19">§331.19</num><heading>Injection Into or Through the Edwards Aquifer</heading><content>(a) Except as authorized in subsection (c) of this section, for applications submitted on or after September 1, 2001, injection wells that transect or terminate in the Edwards Aquifer may be authorized by rule under §331.9 of this title (relating to Injection Authorized by Rule) or by permit only as follows:(1) wells that inject groundwater withdrawn from the Edwards Aquifer may be authorized only if:(A) the groundwater is unaltered physically, chemically, or biologically; or(B) the groundwater is treated in connection with remediation that is approved by state or federal order, authorization, or agreement and does not exceed the maximum contaminant levels for drinking water contained in §290.104 of this title (relating to Summary of Maximum Contaminant Levels, Maximum Residual Disinfectant Levels, Treatment Techniques, and Action Levels);(2) wells that inject non-toxic tracer dyes into the Edwards Aquifer for the purpose of conducting scientific studies to determine hydrologic flowpaths may be authorized if the owner or operator is a federal or state agency, county, municipality, river authority, or groundwater district;(3) improved sinkholes or caves located in karst topographic areas that inject storm water, flood water, or groundwater may be authorized; and(4) wells that terminate in a portion of the Edwards Aquifer that contains groundwater with a total dissolved solids (TDS) concentration of more than 5,000 milligrams per liter, and:(A) the water is injected by a utility owned by the City of New Braunfels;(B) the injected water has a TDS of less than 1,500 milligrams per liter and is not domestic wastewater, municipal wastewater, or reclaimed water as defined by Chapter 210 of this title (relating to Use of Reclaimed Water);(C) if the injected water is state water, the utility has a water right or contract for use of the water that does not prohibit use of the water in an aquifer storage and recovery project; and(D) the injection of the water complies with the requirements of Subchapter K of this chapter (relating to Additional Requirements for Class V Injection Wells Associated With Aquifer Storage and Recovery Projects).(b) For the purposes of subsection (a) of this section, Edwards Aquifer means that portion of an arcuate belt of porous, water-bearing limestones composed of the Edwards Formation, Georgetown Formation, Comanche Peak Formation, Salmon Peak Limestone, McKnight Formation, West Nueces Formation, Devil's River Limestone, Person Formation, Kainer Formation, and Edwards Group trending from west to east to northeast through Kinney, Uvalde, Medina, Bexar, Kendall, Comal, Hays, Travis, and Williamson Counties. The permeable aquifer units generally overlie the less-permeable Glen Rose Formation to the south, overlie the less-permeable Comanche Peak and Walnut Formations north of the Colorado River, and underlie the less-permeable Del Rio Clay regionally.(c) This subsection applies only to the portion of the Edwards Aquifer that is within the geographic area circumscribed by the external boundaries of the Barton Springs-Edwards Aquifer Conservation District but is not in the jurisdiction of the Edwards Aquifer Authority.(1) Unless authorized by rule as provided in paragraph (4) of this subsection or authorized by rule, individual permit, or general permit issued by the commission as provided in paragraph (5) of this subsection, all injection wells within the geographic area described in this subsection are prohibited.(2) This subsection does not apply to a wastewater facility permitted under Texas Water Code (TWC), Chapter 26 or a subsurface area drip dispersal system permitted under TWC, Chapter 32.(3) Definitions. For the purposes of this subsection:(A) Edwards Aquifer--That portion of an arcuate belt of porous, water-bearing limestones composed of the Edwards Formation, Georgetown Formation, Comanche Peak Formation, Salmon Peak Limestone, McKnight Formation, West Nueces Formation, Devil's River Limestone, Person Formation, Kainer Formation, and Edwards Group, together with the Upper Glen Rose Formation where scientific studies have documented a hydrological connection to the overlying Edwards Group trending from west to east to northeast through Kinney, Uvalde, Medina, Bexar, Kendall, Comal, Hays, Travis, and Williamson Counties. The permeable aquifer units generally overlie the less-permeable Glen Rose Formation to the south, overlie the less-permeable Comanche Peak and Walnut Formations north of the Colorado River, and underlie the less-permeable Del Rio Clay regionally.(B) Engineered aquifer storage and recovery facility--A facility with one or more wells that is located, designed, constructed, and operated for the purpose of injecting fresh water into a subsurface permeable stratum and storing the water for subsequent withdrawal and use for a beneficial purpose.(C) Fresh water--Surface water or groundwater, without regard to whether the water has been physically, chemically, or biologically altered, that:(i) contains a total dissolved solids concentration of not more than 1,000 milligrams per liter; and(ii) is otherwise suitable as a source of drinking water supply.(D) Saline portion of the Edwards Aquifer--The portion of the Edwards Aquifer that contains groundwater with a total dissolved solids concentration of more than 1,000 milligrams per liter.(4) Injection wells authorized by rule. Injection wells within the geographic area described within this subsection may be authorized by rule under §331.9 of this title for:(A) the injection of fresh water withdrawn from the Edwards Aquifer into a well that transects or terminates in the Edwards Aquifer for the purpose of providing additional recharge; or(B) the injection of rainwater, storm water, flood water, or groundwater into the Edwards Aquifer by means of an improved natural recharge feature such as a sinkhole or cave located in a karst topographic area for the purpose of providing additional recharge.(5) Injection wells authorized by rule, individual permit, or general permit. Injection wells within the geographic area described in this subsection may be authorized under a rule, individual permit, or general permit issued by the commission. A rule, individual permit, or general permit under this paragraph may authorize:(A) an activity described under paragraph (4) of this subsection;(B) an injection well that transects and isolates the saline portion of the Edwards Aquifer and terminates in a lower aquifer for the purpose of injecting:(i) concentrate from a desalination facility; or(ii) fresh water as part of an engineered aquifer storage and recovery facility;(C) an injection well that terminates in that part of the saline portion of the Edwards Aquifer that has a TDS concentration of more than 10,000 milligrams per liter for the purpose of injecting into the saline portion of the Edwards Aquifer:(i) concentrate from a desalination facility, provided that the injection well must be at least three miles from the closest outlet of Barton Springs; or(ii) fresh water as part of an engineered aquifer and storage recovery facility, provided each well used for injection or withdrawal from the facility must be at least three miles from the closest outlet of Barton Springs;(D) an injection well that transects or terminates in the Edwards Aquifer for:(i) aquifer remediation;(ii) the injection of a nontoxic tracer dye as part of a hydrologic study; or(iii) another beneficial activity that is designed and undertaken for the purpose of increasing protection of an underground source of drinking water from pollution or other deleterious effects; or(E) an injection well that transects the Edwards Aquifer for the purpose of injecting fresh water provided that:(i) the well isolates the Edwards Aquifer and meets the construction standards in §331.183 of this title (relating to Construction and Closure Standards);(ii) the well is part of an engineered aquifer storage and recovery facility;(iii) the injected water is sourced from a public water system, as defined in §290.38 of this title (relating to Definitions), that is permitted by the commission;(iv) the injected water meets water quality standards for public drinking water established in Chapter 290 of this title (relating to Public Drinking Water); and(v) the injection complies with the provisions of Subchapter K of this chapter that are not in conflict with this section.(6) The commission must hold a public meeting before issuing a general permit under this section.(7) Special requirements for all injection wells subject to this subsection.(A) Monitoring wells. An injection well subject to this subsection must be monitored by means of:(i) one or more monitoring wells operated by the injection well owner if the executive director determines that there is an underground source of drinking water in the area of review that is potentially affected by the injection well; or(ii) if clause (i) of this subparagraph does not apply, one or more monitoring wells operated by a party other than the injection well owner, provided that all results of monitoring are promptly made available to the injection well owner.(iii) A monitoring well described under this subparagraph, if properly sited and completed, may also be used for monitoring a saline water production well.(B) An injection well subject to this subsection:(i) must not result in the waste or pollution of fresh water; and(ii) may be authorized for a term not to exceed ten years, and the authorization for the injection well may be renewed.(8) An authorization by rule, individual permit, or general permit under paragraph (5)(B), (C), or (E) of this subsection:(A) must initially be associated with a small-scale research project designed to evaluate the long-term feasibility of the injection of concentrate from a desalination facility; or an aquifer storage and recovery project;(B) may be continued following completion of the research project if:(i) the research project information is submitted to the commission in a timely schedule;(ii) adequate characterization of risks to the fresh water portion of the Edwards Aquifer, the fresh water portion of formations in the Trinity Group or other fresh water demonstrates to the commission's satisfaction that continued operation or continued operations with commission-approved well modifications or operational controls does not pose unreasonable risk to the fresh water portion of the Edwards Aquifer, the fresh water portion of formations in the Trinity Group, or other fresh water; and(iii) the commission receives a notice of intent to continue operation at least 90 days before initiation of commercial well operations.(9) Authorization under paragraph (5)(B) or (C) of this subsection must require monitoring reports be filed with the executive director at least every three months.</content><note type="source"><p>Source Note: The provisions of this §331.19 adopted to be effective November 3, 2002, 27 TexReg 10033; amended to be effective June 25, 2015, 40 TexReg 3993; amended to be effective May 28, 2020, 45 TexReg 3462.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scA/s331.21"><num value="331.21">§331.21</num><heading>Required Submission of Geoscientific Information</heading><content>All geoscientific information submitted to the agency under this chapter shall be prepared by, or under the supervision of, a licensed professional geoscientist or a licensed professional engineer and shall be signed, sealed, and dated by the licensed professional geoscientist or licensed professional engineer in accordance with the Texas Geoscience Practice Act and the Texas Engineering Practice Act.</content><note type="source"><p>Source Note: The provisions of this §331.21 adopted to be effective October 2, 2003, 28 TexReg 8367.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c331/scC"><num value="C">SUBCHAPTER C</num><heading>GENERAL STANDARDS AND METHODS</heading><section identifier="/us/state/tx/tac/t30/p1/c331/scC/s331.41"><num value="331.41">§331.41</num><heading>Applicability</heading><content>The provisions of this subchapter set forth standards and requirements that apply to all Class I and Class III wells, unless specifically excluded.</content><note type="source"><p>Source Note: The provisions of this §331.41 adopted to be effective May 13, 1986, 11 TexReg 1982.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scC/s331.42"><num value="331.42">§331.42</num><heading>Area of Review</heading><content>(a) The area of review is the area surrounding an injection well or a group of injection wells, for which the permit application must detail the information required in Subchapter G of this chapter (relating to Consideration Prior to Permit Issuance). (1) The area of review for Class I wells, except those wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals, is an area determined by a radius of 2 1/2 miles from the proposed or existing wellbore, or the area within the cone of influence, whichever is greater. (2) The area of review for those Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals, is an area determined by a radius of 1/4 mile from the proposed or existing wellbore, or the area within the cone of influence, whichever is greater. Notwithstanding subsection (c) of this section, if the area of review is determined by a mathematical model pursuant to subsection (b) of this section, the permissible radius is the result of such calculation even if it is less than 1/4 mile. (3) The area of review for salt dome cavern disposal wells and associated caverns, is the sum of the two following areas: (A) an area determined by a radius of 2 1/2 miles from the proposed or existing wellbore; and (B) the greatest horizontal plane cross-sectional area of the salt dome between land surface and a depth of 1,000 feet below the projected floor of the proposed or existing salt dome cavern. (4) The area of review for Class III wells, is the project area plus a circumscribing area, a minimum of 1/4 mile, the width of which is the lateral distance from the perimeter of the project area, in which the pressures in the injection zone may cause the migration of the injection and/or formation fluid into a Underground Sources of Drinking Water. (5) The area of review for Class V wells is an area determined by a radius of at least 1/4 mile from the proposed or existing wellbore. (b) The computation of the cone of influence may be based upon the parameters listed in the figure in this subsection and should be calculated for an injection time period equal to the expected life of the injection well or pattern. The following modified Theis equation illustrates one form which the mathematical model may take: Attached Graphic(c) After an appropriate review, the commission may modify the area of review. In no event shall the boundary of an area of review be less than 2 1/2 miles for Class I wells, except those wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals, or 1/4 mile for Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals, or 1/4 mile from any other injection well covered by the appropriate authorization. The following factors are to be included in the review: (1) Chemistry of injection and formation fluids; (2) Hydrogeology; (3) Population and its dependence on ground water use; and (4) Historical practices in the area. (d) The executive director may require an owner or operator of an existing injection well to submit any reasonably available information regarding the area of review, if the information would aid a review for the prevention or correction of freshwater pollution.</content><note type="source"><p>Source Note: The provisions of this §331.42 adopted to be effective May 13, 1986, 11 TexReg 1982; amended to be effective July 5, 1989, 14 TexReg 3047; amended to be effective June 22, 1992, 17 TexReg 4097; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective July 10, 2008, 33 TexReg 5342; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scC/s331.43"><num value="331.43">§331.43</num><heading>Mechanical Integrity Standards</heading><content>(a) An injection well has mechanical integrity if:(1) there is no significant leak in the casing, tubing, or packer; and(2) if there is no significant fluid movement through vertical channels adjacent to the injection wellbore.(b) A salt cavern has integrity if it:(1) has no anomalies or irregularities that would prevent optimum cavern filling or that would prevent the cavern from holding pressure; and(2) has no pressure communication or fluid flow between other caverns or formations. The tests to show salt cavern integrity shall consist of cavern pressure and sonar tests, or other tests approved by the executive director, to determine the geometric shape of the unfilled cavern.(c) Methods and standards approved by the United States Environmental Protection Agency through federal Underground Injection Control Program delegation to the commission, shall be applied in conducting and evaluating the tests required by this section.(d) When the owner or operator reports the results of mechanical integrity tests to the executive director, he shall include a description of the test(s) and the method(s) used. In making his/her evaluation, the executive director shall review monitoring and other test data submitted since the previous evaluation.(e) The executive director may require additional or alternative tests if the results presented by the owner or operator under subsection (d) of this section are not satisfactory to the executive director to demonstrate that there is no movement of fluid into or between underground source of drinking waters resulting from the injection activity.</content><note type="source"><p>Source Note: The provisions of this §331.43 adopted to be effective May 13, 1986, 11 TexReg 1982; amended to be effective June 22, 1992, 17 TexReg 4097; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scC/s331.44"><num value="331.44">§331.44</num><heading>Corrective Action Standards</heading><content>(a) Corrective action standards for all wells. In determining the adequacy of corrective action proposed or required to prevent or correct pollution of underground sources of drinking waters (USDWs), and fresh or surface water, the following factors shall be considered:(1) toxicity and volume of the injected fluid;(2) toxicity of native fluids and by-products of injection;(3) population potentially affected;(4) geology and hydrology;(5) history of the injection operation;(6) completion and plugging records;(7) abandonment procedures in effect at the time a well was abandoned;(8) hydraulic connections with USDWs, and fresh or surface water;(9) reliability of the procedures used to identify abandoned wells;(10) any other factors which might affect the movement of fluids into or between USDWs; and(11) for Class III wells only, when setting corrective action requirements the executive director shall consider the overall effect of the project on the hydraulic gradient in potentially affected USDWs, and the corresponding changes in potentiometric surfaces(s) and flow directions(s) rather than the discrete effect of each well. If a decision is made that corrective action is not necessary based on the determinations in this paragraph, the monitoring program required in §331.84 of this title (relating to Monitoring Requirements) shall be designed to verify the validity of those determinations.(b) Additional corrective action standards for Class I wells.(1) For such wells within the area of review which are in the opinion of the executive director inadequately constructed, completed, plugged, or abandoned, or for which plugging or completion information is unavailable, the applicant shall also submit a plan consisting of such steps or modifications as are necessary to prevent movement of fluids into or between USDWs or freshwater aquifers. Where such a plan is adequate, the commission shall incorporate it into the permit as a condition. Where the executive director's review of an application indicates that the permittee's plan is inadequate the executive director shall:(A) require the applicant to revise the plan;(B) prescribe a plan for corrective action as a condition of the permit; or(C) deny the application.(2) The criteria of subsection (a) of this section will be used to determine adequacy.(3) Any permit issued for a Class I well which was authorized prior to August 25, 1988, by an approved state program or an EPA-administered program or a well which has become a Class I well as a result of a change in the definition of the injected waste which would render the waste hazardous under §331.2 of this title (relating to Definitions) and which require corrective action other than pressure limitations shall include a compliance schedule requiring any corrective action accepted or prescribed under this section. Any such compliance schedule shall provide for compliance no later than two years following issuance of the permit and shall require observance of appropriate pressure limitations under paragraph (4) of this subsection until all other corrective action measures have been implemented.(4) As part of the corrective action plan, the commission may impose an injection pressure limitation that does not cause the pressure in the injection zone to be sufficient to drive fluids into or between USDWs or freshwater aquifers in those wells described in subsection (a) of this section, which condition shall expire upon adequate completion of all corrective action measures.(5) Action prescribed by a corrective action plan for new wells or new areas must be completed to the satisfaction of the executive director before operation of the well begins.(6) In the event that, after an authorization for injection has been granted, additional information is submitted or discovered that a well within the applicable area of review might pose a hazard to a USDW or freshwater aquifer, the commission may prescribe a corrective action plan and compliance schedule as a condition for continued injection activities.(7) If at any time the operator cannot assure the continuous attainment of the performance standard in §331.62(a)(5) of this title (relating to Construction Standards), the executive director may require a corrective action plan and compliance schedule. The operator must demonstrate compliance with the performance standard, as a condition for receiving approval of continued operation of the well. The executive director also may require permit changes to provide for additional testing and/or monitoring of the well to insure the continuous attainment of the performance standard. The commission may order closure of the well if the operator fails to demonstrate, to the executive director's satisfaction, that the performance standard is satisfied.</content><note type="source"><p>Source Note: The provisions of this §331.44 adopted to be effective May 13, 1986, 11 TexReg 1982; amended to be effective July 5, 1989, 14 TexReg 3047; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scC/s331.45"><num value="331.45">§331.45</num><heading>Executive Director Approval of Construction and Completion</heading><content>The executive director may approve or disapprove the construction and completion for an injection well or project. In making a determination whether to grant approval, the following shall be reviewed for compliance with the standards of this chapter:(1) for Class I wells, except for those Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals, and salt dome cavern disposal wells and associated salt dome caverns:(A) actual as-built drilling and completion data on the well;(B) all logging and testing data on the well;(C) a demonstration of mechanical integrity;(D) anticipated maximum pressure and flow rate at which the permittee will operate;(E) results of the injection zone and confining zone testing program as required in §331.62(a)(7) of this title (relating to Construction Standards) and §331.65(a) of this title (relating to Reporting Requirements);(F) the actual injection procedure;(G) the compatibility of injected wastes with fluids in the injection zone and minerals in both the injection zone and the confining zone and materials used to construct the well;(H) the calculated area of review and cone of influence based on data obtained during logging and testing of the well and the formation, and where necessary, revisions to the information submitted under §331.121 of this title (relating to Class I Wells);(I) the status of corrective action required for defective wells in the area of review;(J) compliance with the casing and cementing performance standard in §331.62(a)(5) of this title, and where necessary, changes to the permit to provide for additional testing and/or monitoring of the well to insure the continuous attainment of the performance standard; and(K) compliance with the cementing requirements in §331.62(a)(6) of this title.(2) for Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals:(A) all available logging and testing program data on the well;(B) a demonstration of mechanical integrity;(C) the anticipated maximum pressure and flow rate at which the permittee will operate;(D) the results of the formation testing program;(E) the actual injection procedure;(F) the compatibility of injected waste with fluids in the injection zone and minerals in both the injection zone and the confining zone; and(G) the status of corrective action on defective wells in the area of review.(3) for salt dome cavern disposal wells and associated salt dome caverns:(A) actual as-built drilling and completion data on the well;(B) all logging, coring, and testing program data on the well and salt pilot hole;(C) a demonstration of mechanical integrity of the well;(D) the anticipated maximum wellhead and casing seat pressures and flow rates at which the well will operate during cavern development and cavern waste filling;(E) results of the salt dome cavern injection zone and salt dome cavern confining zone testing program as required in §331.163(e)(3) of this title (relating to Well Construction Standards);(F) the injection and production procedures for cavern development and cavern waste filling;(G) the compatibility of injected materials with the contents of the salt dome cavern injection zone and the salt dome cavern confining zone, and with the materials of well construction;(H) land subsidence monitoring data and groundwater quality monitoring data, including determinations of baseline conditions for such monitoring throughout the area of review;(I) the status of corrective action required for defective wells in the area of review;(J) actual as-built specifications of the well's surface support and monitoring equipment; and(K) conformity of the constructed well system with the plans and specifications of the permit application;(4) for Class III wells:(A) logging and testing data on the well;(B) a satisfactory demonstration of mechanical integrity for all new wells, excluding monitor and baseline wells;(C) anticipated operating data;(D) the results of the formation testing program;(E) the injection procedures; and(F) the status of corrective action required for defective wells in the area of review.</content><note type="source"><p>Source Note: The provisions of this §331.45 adopted to be effective January 2, 1995, 19 TexReg 10099; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective July 10, 2008, 33 TexReg 5342; amended to be effective March 12, 2009, 34 TexReg 1638; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scC/s331.46"><num value="331.46">§331.46</num><heading>Closure Standards</heading><content>(a) Applicability. Subsections (b) - (i), (k) - (n), and (r) of this section apply to Class I wells except for salt cavern disposal wells and those Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals. For salt dome cavern disposal wells, only subsections (c), (e) - (i), (k) - (l), (n) - (p), and (r) of this section apply. For bedded salt cavern disposal wells, only subsections (e) - (h), (k) - (l), (n) - (o), and (q) - (r) of this section apply. For Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals, only subsections (e) - (h), (n), and (r) of this section apply.(b) For Class I wells, prior to closing the well, the owner or operator shall observe and record the pressure decay for a time specified by the executive director. The executive director shall analyze the pressure decay and the transient pressure observations conducted pursuant to §331.64 of this title (relating to Monitoring and Testing Requirements) and determine whether the injection activity has conformed with predicted values.(c) For Class I wells, prior to well closure, appropriate mechanical integrity testing shall be conducted to ensure the integrity of that portion of the long string casing and cement that will be left in the ground after closure. Testing methods may include:(1) pressure tests with liquid or gas;(2) radioactive tracer surveys for wells other than salt cavern disposal wells;(3) noise logs, temperature logs, pipe evaluation logs, cement bond logs, or oxygen activation logs; and(4) any other test required by the executive director.(d) For Class I wells, prior to well closure the well shall be flushed with a nonhazardous buffer fluid.(e) In closure of all Class I wells, Class III wells, and permitted Class V wells, a well shall be plugged in a manner which will not allow the movement of fluids through the well, out of the injection zone either into or between underground sources of drinking waters (USDWs) or to the land surface. Well plugs shall consist of cement or other materials that provide protection equivalent to or greater than that provided by cement.(f) The permittee shall notify the executive director before commencing closure according to an approved plan. For Class I wells this notice shall be given at least 60 days before commencement. At the discretion of the executive director, a shorter notice period may be allowed. The executive director shall review any revised, updated, or additional closure plans.(g) Placement of the plugs in the wellbore shall be accomplished by an approved method that may include one of the following:(1) the balance plug method;(2) the dump bailer method;(3) the two-plug method; or(4) an alternate method, approved by the executive director, that will reliably provide a comparable level of protection.(h) Prior to closure, the well shall be in a state of static equilibrium with the mud or nonhazardous fluid weight equalized top to bottom, either by circulating the mud or fluid in the well at least once or by a comparable method prescribed by the executive director.(i) Each plug used shall be appropriately tagged and tested for seal and stability before closure is completed.(j) The closure plan shall, in the case of a Class III production zone which underlies or is in an exempted aquifer, also demonstrate that no movement of contaminants that will cause pollution from the production zone into a USDW or freshwater aquifer will occur. The commission shall prescribe aquifer cleanup and monitoring where deemed necessary and feasible to ensure that no migration of contaminants that will cause pollution from the production zone into a USDW or freshwater aquifer will occur.(k) The following shall be considered in determining the adequacy of a plugging and abandonment plan for Class I and III wells:(1) the type and number of plugs to be used;(2) the placement of each plug including the elevation of the top and bottom;(3) the type, grade, and quantity of plugging material to be used;(4) the method of placement of the plugs;(5) the procedure used to plug and abandon the well;(6) any newly constructed or discovered wells, or information, including existing well data, within the area of review;(7) geologic or economic conditions;(8) the amount, size, and location by depth of casings and any other materials left in the well;(9) the method and location where casing is to be parted if applicable;(10) the estimated cost of the plugging procedure; and(11) such other factors that may affect the adequacy of the plan.(l) For Class I wells only, a monument or other permanent marker shall be placed at or attached to the plugged well before abandonment. The monument shall state the permit number, date of abandonment, and company name.(m) Each owner of a Class I hazardous waste injection well, and the owner of the surface or subsurface property on or in which a Class I hazardous waste injection well is located, must record, within 60 days after approval by the executive director of the closure operations, a notation on the deed to the facility property or on some other instrument which is normally examined during a title search that will, in perpetuity, provide any potential purchaser of the property the following information:(1) the fact that land has been used to manage hazardous waste;(2) the name of the state agency or local authority with which the plat was filed, as well as the Austin address of the Underground Injection Control staff of the commission, to which it was submitted; and(3) the type and volume of waste injected, the injection interval or intervals, and for salt cavern wells, the maximum cavern radius into which it was injected, and the period over which injection occurred.(n) Within 30 days after completion of closure, the permittee shall file with the executive director a closure report on forms provided by the commission. The report shall be certified as accurate by the owner or operator and by the person who performed the closure operation (if other than the owner or operator). This report shall consist of a statement that the well was closed in accordance with the closure plan previously submitted and approved by the executive director. Where the actual closure differed from the plan previously submitted, a written statement shall be submitted specifying the differences between the previous plan and the actual closure.(o) For salt cavern disposal wells, prior to sealing the cavern and plugging the well, the owner or operator shall complete any pre-closure monitoring of the cavern and its contents required by rule or permit.(p) For salt dome cavern disposal wells, the cavern shall be closed according to §331.170 of this title (relating to Cavern Closure).(q) For bedded salt cavern disposal wells, the cavern shall be closed according to §331.250 of this title (relating to Bedded Salt Cavern Closure).(r) The obligation to implement the closure plan survives the termination of a permit or the cessation of injection activities. The requirement to maintain and implement an approved plan is directly enforceable regardless of whether the closure plan requirement is a condition of the permit.</content><note type="source"><p>Source Note: The provisions of this §331.46 adopted to be effective May 13, 1986, 11 TexReg 1982; amended to be effective July 5, 1989, 14 TexReg 3047; amended to be effective June 22, 1992, 17 TexReg 4097; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective July 10, 2008, 33 TexReg 5342; amended to be effective March 12, 2009, 34 TexReg 1638; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scC/s331.47"><num value="331.47">§331.47</num><heading>Pond Lining</heading><content>All holding ponds, emergency overflow ponds, emergency storage ponds, or other surface impoundments associated with, or part of the pre-injection units associated with underground injection wells shall be lined with clay or an artificial liner, and shall in addition, conform to any applicable requirements of Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste).</content><note type="source"><p>Source Note: The provisions of this §331.47 adopted to be effective May 13, 1986, 11 TexReg 1982; amended to be effective January 9, 2003, 28 TexReg 340; amended to be effective August 16, 2012, 37 TexReg 6078; amended to be effective January 7, 2021, 46 TexReg 191.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scC/s331.48"><num value="331.48">§331.48</num><heading>Waiver of Requirements (for Class III and Class V Wells Only)</heading><content>(a) When injection does not occur into, through, or above an underground source of drinking water, the commission, by permit, may authorize a well with less stringent requirements than those required in this chapter to the extent that the less stringent requirements will not result in an increased likelihood of movement of fluid that may pollute USDWs, and fresh or surface water.(b) When injection occurs and a cone of depression centered at the well or well field is maintained for the injection zone, the commission, by permit, may authorize a well with less stringent requirements for operation, monitoring, and reporting than those required in this chapter to the extent that the less stringent requirements will not result in an increased likelihood of movement of fluid that may pollute USDWs, and fresh or surface water.(c) When requirements are reduced under subsection (a) or (b) of this section, a technical summary will be prepared setting forth the basis for the action.</content><note type="source"><p>Source Note: The provisions of this §331.48 adopted to be effective May 13, 1986, 11 TexReg 1982; amended to be effective July 5, 1989, 14 TexReg 3047.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c331/scD"><num value="D">SUBCHAPTER D</num><heading>STANDARDS FOR CLASS I WELLS OTHER THAN SALT CAVERN DISPOSAL WELLS</heading><section identifier="/us/state/tx/tac/t30/p1/c331/scD/s331.61"><num value="331.61">§331.61</num><heading>Applicability</heading><content>The sections of this subchapter apply to all Class I injection wells, other than salt cavern disposal wells, unless otherwise noted.</content><note type="source"><p>Source Note: The provisions of this §331.61 adopted to be effective May 13, 1986, 11 TexReg 1983; amended to be effective June 22, 1992, 17 TexReg 4097; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scD/s331.62"><num value="331.62">§331.62</num><heading>Construction Standards</heading><content>(a) All Class I wells shall be designed, constructed, and completed to prevent the movement of fluids that could result in the pollution of an underground source of drinking water (USDW). The following standards apply to all Class I wells except those wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals.(1) Design criteria. Casing and cement used in the construction of each newly drilled well shall be designed for the life expectancy of the well, including the post-closure care period. The well shall be designed and constructed to prevent potential leaks from the well, to prevent the movement of fluids along the wellbore into or between USDWs, to prevent the movement of fluids along the wellbore out of the injection zone, to permit the use of appropriate testing devices and workover tools, and to permit continuous monitoring of injection tubing, long string casing, and annulus, as required by this chapter. All well materials must be compatible with fluids with which the materials may be expected to come into contact. A well shall be deemed to have compatibility as long as the materials used in the construction of the well meet or exceed standards developed for such materials by the American Petroleum Institute, the American Society for Testing Materials, or comparable standards acceptable to the executive director.(A) Casing design. Surface casing shall be set to a minimum subsurface depth, as determined by the executive director, which extends into the confining bed below the lowest formation containing a USDW or freshwater aquifer. At least one long string casing, using a sufficient number of centralizers, shall extend to the injection interval. In determining and specifying casing and cementing requirements, the following factors shall be considered:(i) depth of lowermost USDW or freshwater aquifer;(ii) depth to the injection interval;(iii) injection pressure, external pressure, internal pressure, and axial loading;(iv) hole size;(v) size and grade of all casing strings (wall thickness, diameter, nominal weight, length, joint specification, and construction material);(vi) the maximum burst and collapse pressures, and tensile stresses which may be experienced at any point along the length of the casings at any time during the construction, operation, and closure of the well;(vii) corrosive effects of injected fluids, formation fluids, and temperatures;(viii) lithology of injection and confining intervals;(ix) presence of lost circulation zones or other subsurface conditions that could affect the casing and cementing program;(x) types and grades of cement; and(xi) quantity and chemical composition of the injected fluid.(B) Tubing and packer design. All Class I injection wells shall inject fluids through tubing with a packer, set at a depth specified by the executive director. Fluid seal systems will not be approved by the commission. The annulus system shall be designed and constructed to prevent the leak of injection fluids into any unauthorized zones. In determining and specifying requirements for tubing and packer, the following factors shall be considered:(i) depth to the injection zone;(ii) characteristics of injection fluid (chemical content, corrosiveness, temperature, and density);(iii) injection pressure;(iv) annular pressure;(v) rate (intermittent or continuous), temperature, and volume of injected fluid;(vi) size of casing; and(vii) tensile, burst, and collapse strengths of the tubing.(2) Plans and specifications. Except as specifically required in the terms of the disposal well permit, the drilling and completion of the well shall be done in accordance with the requirements of this chapter and all permit application plans and specifications.(3) Changes to plans and specifications. Any proposed changes to the plans and specifications must be approved in writing by the executive director that said changes provide protection standards equivalent to or greater than the original design criteria.(A) If during the drilling and/or completion of the well, the operator proposes to change the cementing of the surface casing, the executive director shall require a written description of the proposed change, including any additional data necessary to evaluate the request. The operator may not execute the change until the executive director gives written approval. The operator may change the setting depth of the surface casing to a depth greater than that specified in the permit, either during drilling and/or completion, without approval from the executive director. Approval for setting depths shallower than specified in the permit will not be authorized.(B) If the operator proposes to change the injection interval to one not reviewed during the permit application process, the operator shall submit an application to amend the permit. The operator may not inject into any unauthorized zone.(C) Any other changes, including but not limited to the number of casing strings, changes in the size or material of intermediate and production casings, changes in the completion of the well, changes in the exact setting of screens or injection intervals within the permitted injection zone, and changes in the type of cement used, or method of cementing shall be considered minor changes. If minor changes are requested, the executive director may give immediate oral and subsequent written approval or written approval for those changes. The operator is required to submit a detailed written description of all minor changes, along with the information required in §331.65 of this title (relating to Waste Disposal Operating Requirements), before approval for operation of the well may be granted.(4) Drilling requirements.(A) The well shall be drilled according to sound engineering practices to minimize problems which may jeopardize completion attempts, such as deviated holes, washouts and stuck pipe.(B) As much as technically practicable and feasible, the hole should be drilled under laminar flow conditions, with appropriate fluid loss control, to minimize hole washouts.(C) Immediately prior to running casing, the drilling fluid in the hole is to be circulated and conditioned to establish rheological properties commensurate with proper cementing practices.(5) Construction performance standard. All Class I wells shall be cased and all casings shall be cemented to prevent the movement of fluids along the borehole into or between USDWs or freshwater aquifers, and to prevent movement of fluids along the borehole out of the injection zone.(6) Cementing requirements, for all Class I wells constructed after the promulgation of this rule, including wells converting to Class I status.(A) Cementing shall be by the pump and plug or other method approved by the executive director. Cementing may be accomplished by staging. Cement pumped shall be of a volume equivalent to at least 120% of the volume calculated necessary to fill the annular space between the hole and casing and between casing strings to the surface of the ground. The executive director may require more than 120% when the geology or other circumstances warrant it. A two-dimensional caliper shall be used to measure the hole diameter. If the two-dimensional caliper can not measure the diameter of the hole over an interval, then the minimum amount of cement needed for that interval shall be a volume calculated to be equivalent to or greater than 150% of the space between the casing and the maximum measurable diameter of the caliper.(B) If lost circulation zones or other subsurface conditions are anticipated and/or encountered, which could result in less than 100% filling of the annular space between the casing and the borehole or the casings, the owner/operator shall implement the approved contingency plan submitted according to §331.121(a)(2)(O) of this title (relating to Class I Wells).(7) Logs and tests.(A) Integrity testing. Appropriate logs and other tests shall be conducted during the drilling and construction of Class I wells. All logs and tests shall be interpreted by the service company which processed the logs or conducted the test; or by other qualified persons. A minimum of the following logs and tests shall be conducted:(i) deviation checks on all holes, conducted at sufficiently frequent intervals to assure that avenues for fluid migration in the form of diverging holes are not created during drilling;(ii) for surface casing;(I) spontaneous potential, resistivity, natural gamma, and caliper logs before the casing is installed;(II) cement bond with variable density log, and temperature logs after casing is set and cemented; and(III) any other test required by the executive director;(IV) the executive director may allow the use of an alternate to subclauses (I) and (II) of this clause when an alternative will provide equivalent or better information; and(iii) for intermediate and long string casing:(I) spontaneous potential, resistivity, natural gamma, compensated density and/or neutron porosity, dipmeter/fracture finder, and caliper logs, before the casing is installed;(II) a cement bond with variable density log, casing inspection, and temperature logs after casing is set and cemented, and an inclination survey; and(III) any other test required by the executive director; and(iv) a mechanical integrity test consisting of:(I) a pressure test with liquid or gas;(II) a radioactive tracer survey;(III) a temperature or noise log;(IV) a casing inspection log, if required by the executive director; and(V) any other test required by the executive director.(B) Pressure tests. Surface casing shall be pressure tested to 1,000 pounds per square inch, gauge (psig) for at least 30 minutes, and long string casing shall be tested to 1,500 psig for at least 30 minutes, unless otherwise specified by the executive director.(C) Core samples. Full-hole cores shall be taken from selected intervals of the injection zone and lowermost overlying confining zone; or, if full-hole coring is not feasible or adequate core recovery is not achieved, sidewall cores shall be taken at sufficient intervals to yield representative data for selected parts of the injection zone and lowermost overlying confining zone. Core analysis shall include a determination of permeability, porosity, bulk density, and other necessary tests.(8) Injectivity tests. After completion of the well, injectivity tests shall be performed to determine the well capacity and reservoir characteristics. Surveys shall be performed to establish preferred injection intervals. Prior to performing injectivity tests, the bottom hole pressure, bottom hole temperature, and static fluid level shall be determined, and a representative sample of formation fluid shall be obtained for chemical analysis. Information concerning the fluid pressure, temperature, fracture pressure and other physical and chemical characteristics of the injection and confining zones shall be determined or calculated.(9) Construction and workover supervision. All phases of well construction and all phases of any well workover shall be supervised by qualified individuals acting under the responsible charge of a licensed professional engineer or licensed professional geoscientist, as appropriate, with current registration under the Texas Engineering Practice Act or Texas Geoscience Practice Act, who is knowledgeable and experienced in practical drilling engineering and who is familiar with the special conditions and requirements of injection well construction.(10) The executive director shall have the opportunity to witness all cementing of casing strings, logging and testing. The owner or operator shall submit a schedule of such activities to the executive director at least 30 days prior to commencing drilling of the well. The executive director shall be given at least 24 hour notice before each activity in order that a representative of the executive director may be present.(b) Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals shall be constructed in compliance with the following standards:(1) Wells shall be sited in such a fashion that they inject into a formation which is beneath the lowermost formation containing, within one quarter mile of the well bore, an underground source of drinking water.(2) Wells shall be cased and cemented to prevent the movement of fluids into or between underground sources of drinking water. The casing and cement used in the construction of each newly drilled well shall be designed for the life expectancy of the well. In determining and specifying casing and cementing requirements, the following factors shall be considered:(A) Depth to the injection zone;(B) Injection pressure, external pressure, internal pressure, and axial loading;(C) Hole size;(D) Size and grade of all casing strings (wall thickness, diameter, nominal weight, length, joint specification, and construction material);(E) Corrosiveness of injected fluid, formation fluids, and temperatures;(F) Lithology of injection and confining intervals; and(G) Type or grade of cement.(3) Injection wells, except those municipal wells injecting non-corrosive wastes or those using an alternative as provided by subparagraph (A) of this paragraph shall inject fluids through tubing with a packer set immediately above the injection zone, or tubing with an approved fluid seal as an alternative. The tubing, packer, and fluid seal shall be designed for the expected service.(A) The use of other alternatives to a packer may be allowed with the written approval of the executive director. To obtain approval, the operator shall submit a written request to the executive director, which shall set forth the proposed alternative and all technical data supporting its use. The executive director shall approve the request if the alternative method will reliably provide a comparable level of protection to underground sources of drinking water. The executive director may approve an alternative method solely for an individual well or for general use.(B) In determining and specifying requirements for tubing, packer, or alternatives the following factors shall be considered:(i) Depth of setting;(ii) Characteristics of injection fluid (chemical content, corrosiveness, and density);(iii) Injection pressure;(iv) Annular pressure;(v) Rate, temperature and volume of injected fluid; and(vi) Size of casing.(4) Appropriate logs and other tests shall be conducted during the drilling and construction of new Class I wells. A descriptive report interpreting the results of such logs and tests shall be prepared by a knowledgeable log analyst and submitted to the executive director. At a minimum, such logs and tests shall include:(A) Deviation checks on all holes constructed by first drilling a pilot hole, and then enlarging the pilot hole by reaming or another method. Such checks shall be at sufficiently frequent intervals to assure that vertical avenues for fluid migration in the form of diverging holes are not created during drilling; and(B) Such other logs and tests as may be needed after taking into account the availability of similar data in the area of the drilling site, the construction plan, and the need for additional information, that may arise from time to time as the construction of the well progresses. In determining which logs and tests shall be required, the following logs shall be considered for use in the following situations:(i) For surface casing intended to protect underground sources of drinking water:(I) Resistivity, spontaneous potential, and caliper logs before the casing is installed; and(II) A cement bond, temperature, or density log after the casing is set and cemented.(ii) For intermediate and long strings of casing intended to facilitate injection:(I) Resistivity, spontaneous potential, porosity, and gamma ray logs before the casing is installed;(II) Fracture finder logs; and(III) A cement bond, temperature, or density log after the casing is set and cemented.(5) At a minimum, the following information concerning the injection formation shall be determined or calculated for new Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals:(A) Fluid pressure;(B) Temperature;(C) Fracture pressure;(D) Other physical and chemical characteristics of the injection matrix; and(E) Physical and chemical characteristics of the formation fluids.</content><note type="source"><p>Source Note: The provisions of this §331.62 adopted to be effective June 15, 1995, 20 TexReg 4055; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective October 2, 2003, 28 TexReg 8367; amended to be effective July 10, 2008, 33 TexReg 5342.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scD/s331.63"><num value="331.63">§331.63</num><heading>Operating Requirements</heading><content>(a) Applicability. Subsections (b) - (m) of this section apply to Class I wells except for those Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals. For Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals only subsections (b) - (d) and (n) of this section apply.(b) All Class I wells shall be operated to prevent the movement of fluids that could result in the pollution of an underground source of drinking water (USDW) and to prevent leaks from the well into unauthorized zones.(c) Except during well stimulation, injection pressure at the wellhead shall not exceed a maximum which shall be calculated so as to assure that the pressure in the injection zone during injection does not initiate new fractures or propagate existing fractures in the injection zone, initiate new fractures or propagate existing fractures in the confining zone, or cause movement of fluid out of the injection zone that may pollute USDWs or surface water.(d) Injection between the outermost casing protecting USDWs and fresh or surface water and the wellbore is prohibited.(e) The annulus between the tubing and long string casing shall be filled with a non-corrosive or corrosion-inhibiting fluid approved by the commission. The annulus pressure shall be at least 100 psi greater than the injection tubing pressure to prevent leaks from the well into unauthorized zones and to detect well malfunctions, unless the executive director determines that such a requirement might harm the integrity of the well.(f) Monthly average and maximum instantaneous rates of injection, and annual and monthly volumes of injected fluids shall not exceed limits specified by the commission.(g) All gauges, pressure sensing, and recording devices shall be tested and calibrated quarterly.(h) Any chemical or physical characteristic of the injected fluids shall be maintained within specified permit limits for the protection of the injection well, associated facilities, and injection zone and to ensure proper operation of the facility.(i) The permittee shall notify the executive director before commencing any workover operation. The notification shall be in writing and shall include plans for the proposed work. Approval by the executive director shall be obtained before the permittee may begin the workover. The executive director may grant an exception to the prior written notification and permission requirements when immediate action is required to comply with subsection (b) of this section.(j) Pressure control equipment shall be installed and maintained during workovers which involve the removal of tubing.(k) For workovers or testing operations on hazardous waste disposal wells, all hazardous fluids shall be flushed from the wellbore with a nonhazardous fluid before conducting any portion of the operations which would result in the exposure of the hazardous wastes to the environment or the public.(l) The owner or operator shall maintain mechanical integrity of the injection well at all times.(m) The owner or operator of an injection well that has ceased operations for more than two years and is subject to §305.154(a)(7) of this title (relating to Standards) shall notify the executive director in writing 30 days prior to resuming operation of the well.(n) For Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals, unless an alternative to a packer has been approved under §331.62(b)(3)(A) of this title (relating to Construction Standards), the annulus between the tubing and the long string of casings shall be filled with a fluid approved by the executive director and a pressure, also approved by the executive director, shall be maintained on the annulus.</content><note type="source"><p>Source Note: The provisions of this §331.63 adopted to be effective May 13, 1986, 11 TexReg 1983; amended to be effective July 5, 1989, 14 TexReg 3047; amended to be effective August 19, 1991, 16 TexReg 4225; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective December 15, 1997, 22 TexReg 12059; amended to be effective July 10, 2008, 33 TexReg 5342.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scD/s331.64"><num value="331.64">§331.64</num><heading>Monitoring and Testing Requirements</heading><content>(a) Applicability. Subsections (b) - (j) of this section apply to all Class I wells except for those Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals.(b) Injection fluids shall be sampled and analyzed with a frequency sufficient to yield representative data of their characteristics.(1) The owner or operator shall develop and follow an approved written waste analysis plan that describes the procedures to be carried out to obtain a detailed chemical and physical analysis of a representative sample of the waste, including the quality assurance procedures used. At a minimum, the plan shall specify:(A) the parameters for which the waste will be analyzed and the rationale for the selection of these parameters;(B) the test methods that will be used to test for these parameters; and(C) the sampling method that will be used to obtain a representative sample of the waste to be analyzed.(2) The owner or operator shall repeat the analysis of the injected wastes as described in the waste analysis plan and when process or operating changes occur that may significantly alter the characteristics of the waste stream.(3) The owner or operator shall conduct continuous or periodic monitoring of selected parameters as required by the executive director.(4) The owner or operator shall assure that the plan remains accurate and the analyses remain representative.(c) Pressure gauges shall be installed and maintained, at the wellhead, in proper operating conditions at all times on the injection tubing and on the annulus between the tubing and long-string casing, and/or annulus between the tubing and liner.(d) Continuous recording devices shall be installed, used, and maintained in proper operating condition at all times to record injection tubing pressures, injection flow rates, injection fluid temperatures, injection volumes, tubing-long string casing annulus pressure and volume, and any other data specified by the permit. The instruments shall be housed in weatherproof enclosures. The owner or operator shall also install and use:(1) automatic alarm and automatic shutoff systems, designed to sound and shut-in the well when pressures and flow rates or other parameters approved by the executive director exceed a range and/or gradient specified in the permit; or(2) automatic alarms designed to sound when the pressures and flow rates or other parameters approved by the executive director exceed a rate and/or gradient specified in the permit, in cases where the owner or operator certifies that a trained operator will be on location and able to immediately respond to alarms at all times when the well is operating.(3) If an automatic alarm or shutdown is triggered, the owner or operator shall immediately investigate as expeditiously as possible the cause of the alarm or shutoff. If, upon investigation, the well appears to be lacking mechanical integrity, or if monitoring otherwise indicates that the well may be lacking mechanical integrity, the owner or operator shall:(A) cease injection of waste fluids unless authorized by the executive director to continue or resume injection;(B) take all necessary steps to determine the presence or absence of a leak; and(C) notify the executive director within 24 hours after the alarm or shutdown.(4) If the loss of mechanical integrity is discovered by monitoring or during periodic mechanical integrity testing, the owner or operator shall:(A) immediately cease injection of waste fluids;(B) take all steps reasonably necessary to determine whether there may have been a release of hazardous wastes or hazardous waste constituents into any unauthorized zone;(C) notify the executive director within 24 hours after the loss of mechanical integrity is discovered;(D) notify the executive director when injection can be expected to resume; and(E) restore and demonstrate mechanical integrity to the satisfaction of the executive director prior to resuming injection of waste fluids.(5) Whenever the owner or operator obtains evidence that there may have been a release of injected wastes into an unauthorized zone:(A) the owner or operator shall immediately cease injection of waste fluids; and(i) notify the executive director within 24 hours of obtaining such evidence;(ii) take all necessary steps to identify and characterize the extent of any release;(iii) propose a remediation plan for executive director review and approval;(iv) comply with any remediation plan specified by the executive director;(v) implement any remediation plan approved by the executive director; and(vi) where such release is into an underground source of drinking water (USDW) or freshwater aquifer currently serving as a water supply, within 24 hours, notify the local health authority, place a notice in a newspaper of general circulation, and send notification by mail to adjacent landowners;(B) the executive director may allow the operator to resume injection prior to completing cleanup action if the owner or operator demonstrates that the injection operation will not endanger USDWs or freshwater aquifers.(e) Mechanical integrity testing.(1) The integrity of the long string casing, injection tube, and annular seal shall be tested annually by means of an approved pressure test with a liquid or gas and whenever there has been a well workover. The integrity of the bottom-hole cement shall be tested annually by means of an approved radioactive tracer survey. A radioactive tracer survey may be required after workovers that have the potential to damage the cement within the injection zone.(2) A temperature log, noise log, oxygen activation log, or other approved log shall be required by the executive director at least once every five years to test for fluid movement along the borehole.(3) A casing inspection, casing evaluation, or other approved log shall be run whenever the owner or operator conducts a workover in which the injection string is pulled, unless the executive director waives this requirement due to well construction or other factors which limit the test's reliability, or based upon the satisfactory results of a casing inspection log run within the previous five years. The executive director may require that a casing inspection log be run every five years, if there is sufficient reason to believe the integrity of the long string casing of the well may be adversely affected by naturally occurring or man-made events.(4) The executive director may allow the use of a test to demonstrate mechanical integrity other than those listed in paragraph (1) of this subsection with the written approval of the administrator of the United States Environmental Protection Agency (EPA) or his authorized representative. To obtain approval, the executive director shall submit a written request to the EPA administrator, which shall set forth the proposed test and all technical data supporting its use. The EPA administrator shall approve the request if it will reliably demonstrate the mechanical integrity of wells for which its use is proposed. Any alternate method approved by the EPA administrator shall be published in the Federal Register and may be used unless its use is restricted at the time of approval by the EPA administrator.(f) Any wells within the area of review selected for the observation of water quality, formation pressure, or any other parameter, shall be monitored at a frequency sufficient to protect USDWs and fresh or surface water.(g) Corrosion monitoring.(1) Corrosion monitoring of well materials shall be conducted quarterly. Test materials shall be the same as those used in the injection tubing, packer, and long string casing, and shall be continuously exposed to the waste fluids with the exception of when the well is taken out of service. The owner or operator shall demonstrate that the waste stream will be compatible with the well materials with which the waste is expected to come into contact, and to submit to the executive director a description of the methodology used to make that determination. Compatibility for purposes of this requirement is established if contact with injected fluids will not cause the well materials to fail to satisfy any design requirement imposed under §331.62(a)(1) of this title (relating to Construction Standards). Testing shall be by:(A) placing coupons of the well construction materials in contact with the waste stream; or(B) routing the waste stream through a loop constructed with the material used in the well; or (C) using an alternative method approved by the executive director.(2) The test shall use materials identical to those used in the construction of the well, and those materials must be continuously exposed to the operating pressures and temperatures (measured at the wellhead) and flow rates of the injection operation; and(3) The owner or operator shall monitor the materials for loss of mass, thickness, cracking, pitting and other signs of corrosion on a quarterly basis to ensure that the well components meet the minimum standards for material strength and performance set forth in §331.62(a)(1) of this title.(4) Corrosion monitoring may be waived by the executive director if the injection well owner or operator satisfactorily demonstrates, before authorization to conduct injection operations, that the waste streams will not be corrosive to the well materials with which the waste is expected to come into contact throughout the life of the well. The demonstration shall include a description of the methodology used to make that determination.(h) Ambient monitoring.(1) Based on a site-specific assessment of the potential for fluid movement from the well or injection zone and on the potential value of monitoring wells to detect fluid movement, the executive director shall require the owner or operator to develop a monitoring program. When prescribing a monitoring system, the executive director may also require:(A) Continuous monitoring for pressure changes in the first aquifer overlying the confining zone. When a monitor well is installed, the owner or operator shall, on a quarterly basis, sample the aquifer and analyze for constituents specified by the executive director;(B) the use of indirect, geophysical techniques to determine the position of the waste front, the water quality in a formation designated by the executive director, or to provide other site-specific data;(C) periodic monitoring of the ground water quality in the first aquifer overlying the injection zone;(D) periodic monitoring of the ground water quality in the lowermost USDW; and(E) any additional monitoring necessary to determine whether fluids are moving into or between USDWs.(2) The pressure buildup in the injection zone shall be monitored annually, including at a minimum, a shut down of the well for a time sufficient to conduct a valid observation of the pressure fall-off curve.(i) Any other monitoring and testing requirements which the executive director determines to be necessary including, but not limited to, monitoring for seismic activity.(j) The owner or operator shall submit information demonstrating to the satisfaction of the executive director that the waste stream and its anticipated reaction products will not alter the permeability, thickness, or other relevant characteristics of the confining or injection zones such that they would no longer meet the requirements specified in §331.121(c) of this title (relating to Class I Wells).(k) Class I Wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals shall comply with the following monitoring and testing requirements: (1) Monitoring requirements. Monitoring requirements shall, at a minimum, include:(A) The analysis of the injected fluids with sufficient frequency to yield representative data of their characteristics;(B) Installation and use of continuous recording devices to monitor injection pressure, flow rate and volume, and the pressure on the annulus between the tubing and the long string of casing;(C) Installation and use of monitoring wells within the area of review if required by the executive director, to monitor any migration of fluids into and pressure in the USDW. The type, number and location of the wells, the parameters to be measured, and the frequency of monitoring must be approved by the executive director;(D) A demonstration of mechanical integrity pursuant to paragraph (4) of this subsection at least once every five years during the life of the well; and(E) The type, number and location of wells within the area of review to be used to monitor any migration of fluids into and pressure in the USDW, the parameters to be measured and the frequency of monitoring.(2) When the executive director determines that an injection well lacks mechanical integrity pursuant to paragraph (4) of this subsection, the executive director shall give written notice of his determination to the owner or operator. Unless the executive director requires immediate cessation, the owner or operator shall cease injection into the well within 48 hours of receipt of the executive director's determination. The executive director may allow plugging of the well in accordance with the requirements of §331.46 of this title (relating to Closure Standards) or require the owner or operator to perform such additional construction, operation, monitoring, reporting and corrective action as is necessary to prevent the movement of fluid into or between USDWs caused by the lack of mechanical integrity. The owner or operator may resume injection upon receipt of written notification from the executive director that the owner or operator has demonstrated mechanical integrity under paragraph (4) of this subsection.(3) The executive director may allow the owner or operator of a well which lacks mechanical integrity under paragraph (4) of this subsection to continue or resume injection if the owner or operator has made a satisfactory demonstration that there is no movement of fluid into or between USDWs.(4) Mechanical Integrity Testing. An injection well has mechanical integrity if:(A) There is no significant leak in the casing, tubing or packer; and(B) There is no significant fluid movement into an USDW through vertical channels adjacent to the injection well bore.(5) One of the following methods shall be used to evaluate the absence of significant leaks under paragraph (4)(A) of this subsection: (A) Following an initial pressure test, monitoring of the tubing-casing annulus pressure with sufficient frequency to be representative, as determined by the executive director, while maintaining an annulus pressure different from atmospheric pressure measured at the surface; or(B) Pressure test with liquid or gas.(6) The results of a temperature or noise log must be used to determine the absence of significant fluid movement under paragraph (4)(B) of this subsection.(7) The executive director may allow the use of a test to demonstrate mechanical integrity other than those listed in paragraph (5)(A) and (B) of this subsection with the written approval of the executive director. To obtain approval, the permittee shall submit a written request to the executive director, which shall set forth the proposed test and all technical data supporting its use. The executive director shall approve the request if it will reliably demonstrate the mechanical integrity of wells for which its use is proposed.(8) In conducting and evaluating the tests enumerated in this section or others to be allowed by the executive director, the owner or operator and the executive director shall apply methods and standards generally accepted in the industry. When the owner or operator reports the results of mechanical integrity tests to the executive director, he shall include a description of the test(s) and the method(s) used. In making his evaluation, the executive director shall review monitoring and other test data submitted since the previous evaluation.(9) The executive director may require additional or alternative tests if the results presented by the owner or operator under §331.64(k)(5) of this title (relating to Monitoring and Testing Requirements) are not satisfactory to the executive director to demonstrate that there is no movement of fluid into or between USDWs resulting from the injection activity.(10) Ambient monitoring.(A) Based on a site-specific assessment of the potential for fluid movement from the well or injection zone and on the potential value of monitoring wells to detect such movement, the executive director shall require the owner or operator to develop a monitoring program. At a minimum, the executive director shall require monitoring of the pressure buildup in the injection zone annually, including a shut down of the well for a time sufficient to conduct a valid observation of the pressure fall-off curve.(B) When prescribing a monitoring system the executive director may also require:(i) Continuous monitoring for pressure changes in the first aquifer overlying the confining zone. When such a well is installed, the owner or operator shall, on a quarterly basis, sample the aquifer and analyze for constituents specified by the executive director;(ii) The use of indirect, geophysical techniques to determine the position of the waste front, the water quality in a formation designated by the executive director, or to provide other site-specific data;(iii) Periodic monitoring of the ground water quality in the first aquifer overlying the injection zone;(iv) Periodic monitoring of the ground water quality in the lowermost USDW; and(v) Any additional monitoring necessary to determine whether fluids are moving into or between USDWs.</content><note type="source"><p>Source Note: The provisions of this §331.64 adopted to be effective May 13, 1986, 11 TexReg 1983; amended to be effective July 5, 1989, 14 TexReg 3047; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective July 10, 2008, 33 TexReg 5342; amended to be effective January 7, 2021, 46 TexReg 191.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scD/s331.65"><num value="331.65">§331.65</num><heading>Reporting Requirements</heading><content>(a) Applicability. Subsections (b) - (d) of this section apply to all Class I wells except for those Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals.(b) Pre-operation reports. For new wells, including wells converting to Class I status, the requirements are as follows.(1) Completion report. Within 90 days after the completion or conversion of the well, the permittee shall submit a Completion Report to the executive director. The report must include a surveyor's plat showing the exact location and giving the latitude and longitude of the well. The report must also include a certification that a notation on the deed to the facility property or on some other instrument which is normally examined during title search has been made stating the surveyed location of the well, the well permit number, and its permitted waste streams. The permittee shall also include in the report the following, prepared and sealed by a licensed professional engineer or licensed professional geoscientist with current registration under the Texas Engineering Practice Act or Texas Geoscience Practice Act:(A) actual as-built drilling and completion data on the well;(B) all logging and testing data on the well;(C) a demonstration of mechanical integrity;(D) anticipated maximum pressure and flow rate at which the permittee will operate;(E) results of the injection zone and confining zone testing program as required in §331.62 of this title (relating to Construction Standards) and this subsection;(F) adjusted formation pressure increase calculations, fluid front calculations and updated cross-sections of the confining and injection zones, based on the data obtained during construction and testing;(G) the actual injection procedure;(H) the compatibility of injected wastes with fluids in the injection zone and minerals in both the injection zone and the confining zone and materials used to construct the well;(I) the calculated area of review and cone of influence based on data obtained during logging and testing of the well and the formation, and where necessary, revisions to the information submitted under §331.121 of this title (relating to Class I Wells);(J) the status of corrective action required for defective wells in the area of review;(K) a Well Data Report on forms provided by the executive director;(L) compliance with the casing and cementing performance standard in §331.62(5) of this title; and(M) compliance with the cementing requirements in §331.62(6) of this title.(2) Local authorities. The permittee shall provide written notice to the executive director, in a manner specified by the executive director, that a copy of the permit has been properly filed with the health and pollution control authorities of the county, city, and town where the well is located.(3) Start-up date and time. The permittee shall notify the executive director in writing of the anticipated well start-up date. Compliance with all pre-operation terms of the permit must occur prior to beginning injection operations. The permittee shall notify the executive director at least 24 hours prior to beginning drilling operations.(4) Approval of construction and completion. Prior to beginning operations, the permittee must obtain written approval from the executive director, according to §331.45 of this title (relating to Executive Director Approval of Construction and Completion).(c) Operating reports.(1) Injection operation quarterly report. For non-commercial facilities only, within 20 days after the last day of the months of March, June, September, and December, the permittee shall submit to the executive director a quarterly report of injection operation on forms supplied by the executive director. These forms will comply with the reporting requirements of 40 Code of Federal Regulations (CFR) §146.69(a). The executive director may require more frequent reporting.(2) Injection operation monthly report. Commercial facilities shall meet the following requirements.(A) The permittee shall submit within 30 days after the last day of each month a report to the commission including the following information for wastes received and injected during the month:(i) names and locations of the companies and plants generating the wastes;(ii) chemical and physical characteristics and volume of waste received from each company including pH;(iii) names of companies transporting the wastes; and(iv) a log of injection operations for each injection episode including but not limited to time of injection, injection rate, injection pressures, injection fluid volume, injection fluid pH, and injection fluid density.(B) The permittee shall submit to the commission within 20 days of the last day of each month a report of injection operations on forms provided by the commission. These forms shall comply with the reporting requirements of 40 CFR §146.69(a). The executive director may require more frequent reporting.(3) Injection zone annual report. For all facilities, the permittee shall submit annually with the December report of injection operation an updated graphic or other acceptable report of the pressure effects of the well upon its injection zone as required by §331.64(h) of this title (relating to Monitoring and Testing Requirements). To the extent this information is reasonably available, the report must also include:(A) locations of newly constructed or newly discovered wells that penetrate the confining and/or injection zone within the area of review if those wells were not included in the technical report accompanying the permit application or in later reports;(B) a tabulation of data as required by §331.121(a)(2)(B) of this title for wells within the area of review that penetrate the injection zone or confining zone;(C) the condition of the wells identified in subparagraph (A) of this paragraph and their effect on the injection activities;(D) the protocol followed to identify, locate, and ascertain the condition of the wells identified in subparagraph (A) of this paragraph;(E) a corrective action plan for wells not adequately constructed, completed, or plugged; and(F) for non-commercial facilities only, a current injection fluid analysis.(4) Mechanical integrity and other reports. The permittee shall submit within 30 days after test completion, a report including both data and interpretation on the results of:(A) periodic tests of mechanical integrity; and(B) any other test of the injection well or injection zone if required by the executive director.(5) Emergency report of leak or other failure. The permittee shall notify the Underground Injection Control (UIC) Unit of the Austin office of the commission within 24 hours of any significant change in monitoring parameters or of any other observations which could reasonably be attributed to a leak or other failure of the well equipment or injection zone integrity.(d) Workover reports. Within 30 days after the completion of the workover, a report shall be filed with the executive director including the reason for well workover and the details of all work performed.(e) Class I Wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals shall comply with the following reporting requirements:(1) Completion Reports. A new injection well may not commence injection until construction is complete, and(A) The permittee has submitted notice of completion of construction to the executive director; and(B) The executive director has inspected or otherwise reviewed the new injection well and finds it is in compliance with the conditions of the permit; or(C) The permittee has not received notice from the executive director of his intent to inspect or otherwise review the new injection well within 13 days of the date of the notice in paragraph (1)(A) of this subsection, in which case prior inspection or review is waived and the permittee may commence injection. The executive director shall include in his notice a reasonable time period in which he shall inspect the well.(2) Operating Reports. The owner or operator shall submit reports to the executive director as follows:(A) Quarterly reports on:(i) The physical, chemical, and other relevant characteristics of the injection fluids;(ii) Monthly average, maximum, and minimum values for injection pressure, flow rate and volume, and annular pressure;(iii) The results from ground-water monitoring wells prescribed in paragraph §331.64(k)(10) of this title (relating to Monitoring and Testing Requirements);(iv) The results of any test of the injection well conducted by the owner or operator during the reported quarter if required by the executive director; and(v) Any well work over performed during the reported quarter.(B) Annual Reports. An annual report to the executive director summarizing the results of monitoring required under §331.64(k)(1)(B) of this title. This summary shall include monthly records of injected fluids and any major changes in characteristics or sources of injected fluid. Previously submitted information may be included by reference.</content><note type="source"><p>Source Note: The provisions of this §331.65 adopted to be effective May 13, 1986, 11 TexReg 1983; amended to be effective July 5, 1989, 14 TexReg 3047; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective October 2, 2003, 28 TexReg 8367; amended to be effective July 10, 2008, 33 TexReg 5342.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scD/s331.66"><num value="331.66">§331.66</num><heading>Additional Requirements and Conditions</heading><content>(a) This section applies to all Class I wells except for those Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals.(b) A permit for a Class I well shall include expressly or by reference the following conditions.(1) A sign shall be posted at the well site which shall show the name of the company, company well number, and commission permit number. The sign and identification shall be in the English language, clearly legible and shall be in numbers and letters at least one inch high.(2) An all-weather road shall be installed and maintained to allow access to the injection well and related facilities.(3) The wellhead and associated facilities shall be painted, if appropriate, and maintained in good working order without leaks.(4) The commission may prescribe additional requirements for Class I wells to protect USDWs, and fresh or surface water from pollution.(c) Permit requirements for owners or operators of disposal wells which inject wastes which have the potential to react with the injection formation to generate gases shall include:(1) conditions limiting the temperature, pH, or acidity of the injected wastes; and(2) procedures necessary to assure that pressure imbalances which might cause a backflow or blowout do not occur.</content><note type="source"><p>Source Note: The provisions of this §331.66 adopted to be effective May 13, 1986, 11 TexReg 1983; amended to be effective July 5, 1989, 14 TexReg 3047; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective July 10, 2008, 33 TexReg 5342.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scD/s331.67"><num value="331.67">§331.67</num><heading>Recordkeeping Requirements</heading><content>(a) The permittee shall keep complete and accurate records of:(1) all monitoring required by the permit, including:(A) continuous records of surface injection pressures;(B) continuous records of the tubing-long string annulus pressures and volumes;(C) continuous records of injection flow rates;(D) monthly total volume of injected fluids;(2) All periodic well tests, including but not limited to:(A) injection fluid analyses;(B) bottom hole pressure determinations;(C) mechanical integrity; and(D) casing inspection surveys;(3) all shut-in periods and times that emergency measures were used for handling injection fluid;(4) any additional information on conditions that might reasonably affect the operation of the injection well.(b) All records shall be made available for review upon request from a representative of the commission.(c) The permittee shall retain, for a period of three years following the completion of any plugging and abandonment procedures, records of all monitoring information including the nature and composition of all injected fluids or other records required by the permit. The executive director may require a permittee to submit copies of the records at any time prior to conclusion of the retention period.</content><note type="source"><p>Source Note: The provisions of this §331.67 adopted to be effective May 13, 1986, 11 TexReg 1983; amended to be effective July 5, 1989, 14 TexReg 3047; amended to be effective November 23, 2000, 25 TexReg 11433.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scD/s331.68"><num value="331.68">§331.68</num><heading>Post-Closure Care</heading><content>(a) The owner or operator of a Class I hazardous well shall prepare, maintain, and comply with a plan for post-closure care that meets the requirements of subsection (b) of this section, and is acceptable to the executive director. The obligation to implement the post-closure plan survives the termination of a permit or the cessation of injection activities. The requirement to maintain an approved plan is directly enforceable regardless of whether the requirement is a condition of the permit.(1) The owner or operator shall submit the plan as a part of the permit application and, upon approval by the executive director, such plan shall be a condition of any permit issued.(2) The owner or operator shall submit any proposed significant revision to the plan as appropriate over the life of the well, but no later than the date of the closure report required under §331.46 of this title (relating to Closure Standards).(3) The plan shall provide financial responsibility as required in Subchapter I of this chapter (relating to Financial Responsibility). The owner or operator shall demonstrate and maintain financial assurance in the amount of the post closure cost estimate to cover post-closure care in a manner that meets the requirements of Chapter 37, Subchapter Q of this title (relating to Financial Assurance for Underground Injection Wells). The amount of the funds available shall be no less than the amount identified in paragraph (4)(F) of this subsection. The obligation to maintain financial responsibility for post-closure care survives the termination of a permit or the cessation of injection.(4) The plan shall include the following information:(A) the pressure in the injection zone before injection began;(B) the anticipated pressure in the injection zone at the time of closure;(C) the predicted time until pressure in the injection zone decays to the point that the well's cone of influence no longer intersects the base of the lowermost USDW or freshwater aquifer;(D) predicted position of the waste front at closure;(E) the status of any corrective action required under §331.44 of this title (relating to Corrective Action Standards); and(F) the estimated cost of proposed post-closure care.(5) At the request of the owner or operator, or on his own initiative, the executive director may modify the post-closure plan after submission of the plugging and abandonment report following the procedures in §305.72 of this title (relating to UIC Permit Modification at the Request of the Permittee).(b) The owner or operator shall:(1) continue and complete any corrective action required under §331.44 of this title;(2) continue to conduct any groundwater monitoring required under the permit until pressure in the injection zone decays to the point that the well's cone of influence no longer intersects the base of the lowermost USDW or freshwater aquifer. The executive director may extend the period of post-closure monitoring if he determines that the well may endanger a USDW or freshwater aquifer;(3) submit a survey plat to the local zoning authority designated by the executive director. The plat shall indicate the location of the well relative to permanently surveyed benchmarks. A copy of the plat shall be submitted to the Underground Injection Control (UIC) program at the Austin office of the commission;(4) Provide appropriate notification and information to such state and local authorities as have cognizance over drilling activities to enable such state and local authorities to impose appropriate conditions on subsequent drilling activities that may penetrate the well's confining or injection zone;(5) Retain, for a period of three years following well closure, records reflecting the nature, composition, and volume of all injected fluids. The owner or operator must deliver the records to the executive director at the conclusion of the retention period, and the records shall thereafter be retained at a location designated by the executive director for that purpose.</content><note type="source"><p>Source Note: The provisions of this §331.68 adopted to be effective July 5, 1989, 14 TexReg 3047; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective March 21, 2000, 25 TexReg 2385; amended to be effective November 23, 2000, 25 TexReg 11433.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c331/scE"><num value="E">SUBCHAPTER E</num><heading>STANDARDS FOR CLASS III WELLS</heading><section identifier="/us/state/tx/tac/t30/p1/c331/scE/s331.81"><num value="331.81">§331.81</num><heading>Applicability</heading><content>This subchapter establishes criteria and standards that apply to all Class III wells.</content><note type="source"><p>Source Note: The provisions of this §331.81 adopted to be effective May 13, 1986, 11 TexReg 1984; amended to be effective April 28, 1997, 22 TexReg 3526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scE/s331.82"><num value="331.82">§331.82</num><heading>Construction Requirements</heading><content>(a) Casing and cementing. All new Class III wells, baseline wells, and monitor wells associated with the mining operations shall be cased, cemented from the bottom of the casing to the surface, and capped to prevent the migration of fluids which may cause the pollution of underground sources of drinking water (USDWs) and maintained in that condition throughout the life of the well. In addition, existing wells in areas where there is the potential for contamination and other harmful or foreign matter to enter groundwater through an open well, shall also be cemented to the surface and capped. The casing and cement used in the construction of each well shall be designed for the life expectancy of the well. In determining and specifying casing and cementing requirements, the following factors shall be considered: (1) depth to the injection zone; (2) injection pressure, external pressure, internal pressure, axial loading, etc.; (3) hole size; (4) size and grade of all casing strings (wall thickness, diameter, nominal weight, length, joint specification, and construction material); (5) corrosiveness of injected fluids and formation fluids; (6) lithology of injection and confining zones; and (7) type and grade of cement. (b) Alterations to construction plans. Any proposed changes or alterations to construction plans after permit issuance shall be submitted to the executive director and written approval obtained before incorporating such changes. (c) Logs and tests. Appropriate logs and other tests shall be conducted during the drilling and construction of all new Class III wells and after an existing well has been repaired. A descriptive report interpreting the results of those logs and tests shall be prepared by a knowledgeable log analyst and submitted to the executive director. The logs and tests appropriate to each type of Class III well shall be determined based on the intended function, depth, construction, and other characteristics of the well, availability of similar data in the area of the drilling site, and the need for additional information that may arise from time to time as the construction of the well progresses. (1) During the drilling and construction of Class III wells, appropriate deviation checks shall be conducted on holes, where pilot holes and reaming are used, at sufficiently frequent intervals to assure that vertical avenues for fluid migration in the form of diverging holes are not created during drilling. (2) Mechanical integrity, as described in §331.43 of this title (relating to Mechanical Integrity Standards), shall be demonstrated both following construction of the well, and prior to production or injection. For Class III uranium solution mining wells, a pressure test shall also be conducted each time a tool that could affect mechanical integrity is placed into the well. (A) Except as provided by subparagraph (B) of this paragraph, the following tests shall be used to evaluate the mechanical integrity of the injection well: (i) to test for significant leaks under §331.43(a)(1) of this title, monitoring of annulus pressure, or pressure test with liquid or gas, or radioactive tracer survey. For Class III uranium solution mining wells only, a single point resistivity survey in conjunction with a pressure test can be used to detect any leaks in the casing, tubing, or packer; and (ii) to test for significant fluid movement under §331.43(a)(2) of this title, temperature log, noise log, radioactive tracer survey, cement bond log, oxygen activation log. For Class III uranium solution mining wells only, cement records that demonstrate the absence of significant fluid movement can be used where other tests are not suitable. For Class III wells where the cement records are used to demonstrate the absence of significant fluid movement, the monitoring program prescribed by §331.84 of this title (relating to Monitoring Requirements) shall be designed to verify the absence of significant fluid movement. (B) The executive director may allow the use of a test to demonstrate mechanical integrity other than those listed in subparagraph (A) of this paragraph with the written approval of the administrator of the United States Environmental Protection Agency (EPA) or his authorized representative. To obtain approval, the executive director shall submit a written request to the EPA administrator, which shall set forth the proposed test and all technical data supporting its use. The EPA administrator shall approve the request if it will reliably demonstrate the mechanical integrity of wells for which its use is proposed. Any alternate method approved by the EPA administrator shall be published in the Federal Register and may be used unless its use is restricted at the time of approval by the EPA administrator. (3) Additional logs and tests may be required by the executive director when appropriate. (d) Construction and testing supervision. All phases of well construction and testing shall be supervised by a person who is knowledgeable and experienced in practical drilling engineering and who is familiar with the special conditions and requirements of injection well construction. (e) Injection zone characteristics - water bearing formation. Where the injection zone is a water bearing formation, the following information concerning the injection zone shall be determined or calculated: (1) fluid pressure; (2) temperature; (3) fracture pressure; (4) other physical and chemical characteristics of the injection zone; (5) physical and chemical characteristics of the formation fluids; (6) compatibility of injected fluids with formation fluids; and (7) pre-mining groundwater quality, established in a range table as required under §305.49(a)(10) of this title (relating to Additional Contents of Application for an Injection Well Permit), for a Class III injection well permit authorizing in situ mining of uranium. (f) Injection zone characteristics - non-water bearing formations. Where the injection formation is not a water bearing formation, the fracture pressure shall be determined or calculated. (g) Monitor well location. Where injection is into a formation which contains water with less than 10,000 milligrams per liter of total dissolved solids, monitoring wells shall be completed into the injection zone and into any USDW above the injection zone which could be affected by the mining operation. These wells shall be located to detect any excursion of injection fluids, production fluids, process by-products, or formation fluids outside the mining area or zone. If the operation may be affected by subsidence or catastrophic collapse, the monitoring wells shall be located so that they will not be physically affected. Designated monitoring wells shall be installed at least 100 feet inside any permit area boundary, unless excepted by written authorization from the executive director. (h) Subsidence or catastrophic collapse. Where the injection wells penetrate a USDW in an area subject to subsidence or catastrophic collapse an adequate number of monitor wells shall be completed into the USDW to detect any movement of injected fluids, process by-products or formation fluids into the USDW. The monitor wells shall be located outside the physical influence of the subsidence or catastrophic collapse. (i) Monitor well criteria. In determining the number, location, construction, and frequency of monitoring of the monitor wells the following criteria shall be considered: (1) the population relying on the USDW affected or potentially affected by the injection operation; (2) the proximity of the injection operation to points of withdrawal of drinking water; (3) the local geology and hydrology; (4) the operating pressures and whether a negative pressure gradient is being maintained; (5) the chemistry and volume of the injected fluid, the formation water, and the process by-products; and (6) the injection well density.</content><note type="source"><p>Source Note: The provisions of this §331.82 adopted to be effective May 13, 1986, 11 TexReg 1984; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective July 12, 2001, 26 TexReg 5019; amended to be effective March 12, 2009, 34 TexReg 1638; amended to be effective December 11, 2014, 39 TexReg 9586.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scE/s331.83"><num value="331.83">§331.83</num><heading>Operating Requirements</heading><content>(a) Injection pressure at the wellhead shall not exceed a maximum, as specified in the permit or commission order, which shall be calculated so as to assure that the pressure in the injection zone during injection does not:(1) initiate new fractures or propagate existing fractures in the injection zone;(2) initiate fractures in the confining zone; or(3) cause the migration of injection or formation fluids into USDWs.(b) Injection between the outermost casing protecting USDWs and the wellbore is prohibited.</content><note type="source"><p>Source Note: The provisions of this §331.83 adopted to be effective May 13, 1986, 11 TexReg 1984; amended to be effective April 28, 1997, 22 TexReg 3526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scE/s331.84"><num value="331.84">§331.84</num><heading>Monitoring Requirements</heading><content>(a) Injection fluid shall be analyzed for physical and chemical characteristics with sufficient frequency to yield representative data on its characteristics. Whenever the injection fluid is modified to the extent that the analysis is incorrect or incomplete, a new analysis shall be submitted to the executive director.(b) The injection pressure, the injection volume, and the production volume shall be recorded.(c) Fluid level when required by permit and the parameters chosen to measure water quality in monitor wells completed in the injection zone shall be monitored twice each calendar month. Every sample shall be collected between 10 and 20 days from when the previous sample was collected.(d) Specified wells within 1/4 mile of the injection site shall be monitored at least once every three months to detect any migration from the injection zone into fresh water.(e) All Class III wells may be monitored on a field or project basis rather than on an individual well basis by manifold monitoring. Manifold monitoring may be used in cases of facilities consisting of more than one injection well operating with a common manifold. Separate monitoring systems for each well are not required, provided the owner/operator demonstrates that manifold monitoring is comparable to individual well monitoring.(f) Quarterly monitoring of wells required by §331.82(h) of this title (relating to Construction Requirements).</content><note type="source"><p>Source Note: The provisions of this §331.84 adopted to be effective May 13, 1986, 11 TexReg 1984; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective March 12, 2009, 34 TexReg 1638; amended to be effective December 6, 2018, 43 TexReg 7796.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scE/s331.85"><num value="331.85">§331.85</num><heading>Reporting Requirements</heading><content>(a) Annual report. The permittee shall submit annually, by January 31st, a report including:(1) an updated map of the area of review showing locations of newly constructed or newly discovered wells that penetrate the production zone within the area of review, not included in the technical report accompanying the permit application or in later reports; and(2) a tabulation of data as required by §331.122(2)(B) of this title (relating to Class III Wells) for wells within the area of review that penetrate the production zone;(3) For Class III uranium mining permits:(A) an update of the cost estimate for well closure and groundwater restoration;(B) an updated mine map;(C) an updated mining schedule;(D) an inventory of all injection, production, baseline, and monitor wells; and(E) a document, signed by the owner or operator, or his or her designated representative, that the inventory of wells required in subparagraph (D) of this paragraph is true and correct to the best of his or her knowledge.(b) Except for routine monitoring required in §331.84(d) of this title (relating to Monitoring Requirements), results of required monitoring shall be maintained on site and reported to the executive director upon request or as specified in the permit.(c) Results of mechanical integrity and any other periodic test required by the executive director shall be reported upon request or as specified in the permit.(d) Monitoring may be reported on a project or field basis rather than on an individual well basis where manifold monitoring is used.(e) Routine monitoring data required in §331.84(c) and (d) of this title shall be reported at least quarterly to the executive director on a form provided by the executive director and in accordance with the form completion instructions. These reports must be postmarked no later than the tenth day of the following reporting period.(f) In the event an excursion is verified in a designated monitor well, the permittee shall submit a written remedial action report at least every month to include for each well affected:(1) an explanation of required and other actions since the verifying analysis was taken. The explanation should include the date on which actions were initiated and completed;(2) a description of actions to be taken during the following report period;(3) sample analysis results for control parameters;(4) permittee's efforts to define the extent and probable cause of the presence of mining solutions in a designated monitor well.(g) The first report required by subsection (f) of this section shall include a groundwater analysis in the manner required by §331.106(2) of this title (relating to Remedial Action for Excursion). A copy of all reports shall be mailed to the executive director, postmarked within two days of the end of each report period. The first report period shall begin with the day the presence of mining solution in a designated Monitor Well is verified. The permittee shall continue to make remedial action reports until clean-up is accomplished.(h) Copies of all data required under this section shall be maintained at the permitted facility such that these documents are available for inspection at all times by the executive director.</content><note type="source"><p>Source Note: The provisions of this §331.85 adopted to be effective May 13, 1986, 11 TexReg 1984; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective March 12, 2009, 34 TexReg 1638.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scE/s331.86"><num value="331.86">§331.86</num><heading>Closure</heading><content>(a) Mine facilities. Within 120 days after acknowledgment of completion of mining activities, or if final restoration of the mine area aquifers is required, upon completion of final restoration, the permittee shall accomplish closure of the mining facilities in accordance with approved plugging and abandonment plans submitted as part of the supplementary technical report. An extension of time limit past 120 days must be approved in writing by the executive director.(b) Acknowledgment of closure. When closure has been accomplished, the permittee shall notify the executive director. The executive director will conduct a final inspection of the site to certify that closure has been accomplished in accordance with the permit terms. If closure is certified by the executive director, he shall issue written acknowledgment and permit cancellation procedures will be initiated.</content><note type="source"><p>Source Note: The provisions of this §331.86 adopted to be effective May 13, 1986, 11 TexReg 1984; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective March 12, 2009, 34 TexReg 1638.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scE/s331.87"><num value="331.87">§331.87</num><heading>Methods of Measurement</heading><content>Determination of a physical or chemical parameter in groundwater may be by chemical analysis of a sample or by field measurement by an instrument. Any field measurement of a groundwater parameter using instrumentation must be done using methods and instruments that yield a measurement that is at least equivalent in quality and sensitivity as a measurement determined by chemical analysis.</content><note type="source"><p>Source Note: The provisions of this §331.87 adopted to be effective March 12, 2009, 34 TexReg 1638.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c331/scF"><num value="F">SUBCHAPTER F</num><heading>STANDARDS FOR CLASS III WELL PRODUCTION AREA DEVELOPMENT</heading><section identifier="/us/state/tx/tac/t30/p1/c331/scF/s331.101"><num value="331.101">§331.101</num><heading>Applicability</heading><content>This subchapter establishes additional standards for Class III well injection activities regarding the development of production or other areas authorized by an area permit and/or production area authorization.</content><note type="source"><p>Source Note: The provisions of this §331.101 adopted to be effective May 13, 1986, 11 TexReg 1985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scF/s331.102"><num value="331.102">§331.102</num><heading>Confinement of Mining Solution</heading><content>Mining solutions shall be confined to the production zone within the area of designated production zone monitor wells.</content><note type="source"><p>Source Note: The provisions of this §331.102 adopted to be effective May 13, 1986, 11 TexReg 1985.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scF/s331.103"><num value="331.103">§331.103</num><heading>Production Area Monitor Wells</heading><content>(a) Production zone monitoring. Designated production zone monitor wells shall be spaced no greater than 400 feet from the production area, as determined by exploratory drilling. The distance between adjacent mine area monitor wells shall be no greater than 400 feet. The angle formed by lines drawn from any production well to the two nearest monitor wells will not be greater than 75 degrees. Changes or adjustments in designated production zone monitor well locations may be authorized by the executive director so as to assure adequate containment. These wells shall be subject to the sampling, corrective action, and reporting requirements in §331.105 of this title (relating to Monitoring Standards) and §331.106 of this title (relating to Remedial Action for Excursion).(b) Nonproduction zone monitoring. At a minimum, designated nonproduction zone monitor wells shall be completed in the production area in any freshwater aquifer overlying the production zone. These wells shall be located not more than 50 feet on either side of a line through the center of the production area with a minimum of one per every four acres of production area for wells completed in the first overlying freshwater aquifer and one per every eight acres for wells completed in any additional overlying freshwater aquifers. Changes or adjustments in designated nonproduction zone monitor well locations may be authorized by the executive director so as to assure adequate containment. Those wells completed in the first overlying freshwater aquifer shall be subject to sampling, remedial action, and reporting requirements of §331.105 of this title (relating to Monitoring Standards) and §331.106 of this title. Monitor wells completed in any additional overlying freshwater aquifers shall be subject to monitoring, remedial action, and reporting requirements specified in the permit.</content><note type="source"><p>Source Note: The provisions of this §331.103 adopted to be effective May 13, 1986, 11 TexReg 1985; amended to be effective March 12, 2009, 34 TexReg 1638.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scF/s331.104"><num value="331.104">§331.104</num><heading>Establishment of Baseline and Control Parameters for Excursion Detection</heading><content>(a) Independent and representative water samples shall be collected from each of the following: (1) mine area monitor wells completed in the production zone; (2) mine area monitor wells completed in nonproduction zones; and (3) baseline wells completed in the production zone within the production area. (b) All baseline wells must be completed in the production zone within the production area. The owner or operator shall analyze all groundwater samples from the baseline wells for the following parameters. This suite of parameters shall be the basis for the aquifer restoration required under §331.107 of this title (relating to Restoration). With the exception of uranium and radium-226, any of these parameters may be removed from the list of restoration parameters if an applicant or permittee can demonstrate that a parameter or parameters is not a suitable restoration parameter. An applicant or permittee also can demonstrate that a parameter should be added to the list of restoration parameters. The executive director may require an applicant or operator to establish baseline parameters additional to the above list as appropriate, based on site-specific information. In evaluating a demonstration regarding removing or adding parameters to the list of parameters, the executive director may consider the following: Attached Graphic(1) all parameters that occur in the groundwater within the production zone prior to in situ recovery; (2) all parameters that are in the solutions injected into the production zone; (3) all parameters that may be dissolved from the aquifer material of the production zone into the groundwater during in situ recovery; or (4) any other applicable information provided by the applicant or permittee. (c) A minimum of five baseline wells, or one baseline well for every four acres of production area, whichever is greater, shall be completed in the production zone within the production area. All baseline wells shall be sampled in accordance with subsection (a) of this section and analyzed in accordance with subsection (d) of this section. All valid analytical measurements shall be used to determine the suite of restoration parameters required under subsection (b) of this section. (d) All samples shall be collected, preserved, analyzed, and controlled according to accepted methods as stated in the permit and in accordance with the TCEQ Quality Assurance Project Plan (QAPP). (e) The permittee shall propose for subsequent approval by the commission control parameters for detection of excursions in production and nonproduction wells. Control parameters shall be those constituents in the groundwater that will provide timely and reliable detection of the presence of mining solutions in production and nonproduction wells. Control parameter upper limits for production zone monitor wells shall be determined from pre-mining groundwater sample data from production zone monitor wells, and control parameter upper limits for nonproduction zone monitor wells shall be determined from pre-mining groundwater sample data from nonproduction zone monitor wells. Determination of the presence of an excursion shall be based on a statistical method proposed by the owner or operator and approved by the executive director. (f) If a previously mined permit or production area is to be re-entered for additional in situ mining before completion of restoration under §331.107 of this title or completion of closure under §331.83 of this title (relating to Closure), baseline water quality values for determination of control parameter upper limits and aquifer restoration requirements for the area to be re-entered for mining shall be as originally required by the existing production area authorization or as modified by any amendments to the authorization pursuant to this section and §331.107 of this title. (g) If a previously mined and restored area is to be re-entered for additional in situ uranium mining, baseline water quality values for determination of control parameter upper limits and aquifer restoration requirements for the area to be re-entered for mining shall be determined as required by subsections (a) - (d) of this section.</content><note type="source"><p>Source Note: The provisions of this §331.104 adopted to be effective May 13, 1986, 11 TexReg 1985; amended to be effective March 12, 2009, 34 TexReg 1638.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scF/s331.105"><num value="331.105">§331.105</num><heading>Monitoring Standards</heading><content>The following shall be accomplished to detect mining solutions in designated monitor wells:(1) Routine monitoring. Water samples and, if applicable, field instrument measurements, shall be conducted in accordance with the requirements of §331.84(c) of this title (relating to Monitoring Requirements) from all monitor wells for permit/production area(s) in which mining solutions have been introduced. Monitoring results for the control parameters shall be completed by the second working day and reported as required in §331.85(e) of this title (relating to Reporting Requirements). The determined values shall be entered on appropriate forms within three working days after analysis or instrument measurement. These data shall be kept readily available on site for review by commission representatives.(2) Monitoring duration. The program of monitoring detailed in paragraph (1) of this subsection shall be continued in each permit/mine area until the executive director is officially notified that restoration has commenced. Further monitoring as required by permit shall continue until aquifer restoration and stabilization in that particular permit/mine area has been achieved in compliance with §331.107 of this title (relating to Restoration).(3) Verifying analysis. If the results of a routine sample analysis or instrument measurement show that the value of any control parameter in designated monitor wells is equal to or above the upper limit established for that permit/mine area, the operator shall complete a verifying analysis of samples taken from each apparently affected well within two days.(4) Excursion monitoring. During the period of time when mining solutions are present in a designated monitor well, water samples or measurements will be taken at least two times per week and monitoring results for all control parameters shall be completed by the second day after the sample or measurement is taken.</content><note type="source"><p>Source Note: The provisions of this §331.105 adopted to be effective May 13, 1986, 11 TexReg 1985; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective March 12, 2009, 34 TexReg 1638.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scF/s331.106"><num value="331.106">§331.106</num><heading>Remedial Action for Excursion</heading><content>If the verifying analysis indicates the existence of an excursion in a designated monitor well, the operator shall take the following actions:(1) notification--notify the commission regional office by the next working day by telephone and notify the executive director by letter postmarked within 48 hours of identification of the excursion. The notification must identify the affected monitor well and the control parameter concentrations.(2) analysis--complete a groundwater analysis report for each affected well on forms provided by the executive director (including accuracy checks and stiff diagram) for the following: pH, calcium, magnesium, sodium, potassium, carbonate, bicarbonate, sulfate, chloride, silica, total dissolved solids (180 degrees Celsius), specific conductance and dilute conductance, uranium, radium-226 and any other specified constituents. Results shall be reported in accordance with §331.85(f) of this title (relating to Reporting Requirements).(A) The permittee will clean up all designated monitor wells, all zones outside of the production zone, and the production zone outside of the mine area that contain mining solutions. The permittee may use any method judged necessary and prudent to define the extent of the mining solutions and to effect this clean-up in an expeditious and practical manner. Well clean-up is deemed to be accomplished when the water quality in the affected monitor well(s) has been restored to current local baseline water quality as confirmed by three consecutive daily samples for the control parameters.(B) The executive director may determine that cleanup is not necessary if the permittee can demonstrate that the change in water quality is not due to the presence of mining solutions or fluids from other mining activities.</content><note type="source"><p>Source Note: The provisions of this §331.106 adopted to be effective May 13, 1986, 11 TexReg 1985; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective March 12, 2009, 34 TexReg 1638.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scF/s331.107"><num value="331.107">§331.107</num><heading>Restoration</heading><content>(a) Aquifer restoration. Groundwater in the production zone within the production area must be restored when mining is complete. Each Class III permit or production area authorization shall contain a description of the method for determining that groundwater has been restored in the production zone within the production area. Restoration must be achieved for all values in the restoration table of all parameters in the suite established in accordance with the requirements of §331.104(b) of this title (relating to Establishment of Baseline and Control Parameters for Excursion Detection).(1) Restoration table. Each permit or production area authorization shall contain a restoration table for all parameters in the suite established in accordance with the requirements of §331.104(b) of this title. The restoration value for each parameter listed in the restoration table cannot exceed the maximum value for the respective parameter in the permit range table required under §331.82(e)(7) of this title (relating to Construction Requirements). A restoration table value for a parameter shall be established by:(A) the mean concentration or value for that parameter based on all measurements from groundwater samples collected from baseline wells prior to mining activities; or(B) a statistical analysis of baseline well information proposed by the owner or operator and approved by the executive director that demonstrates that the restoration table value is representative of baseline quality.(2) Achievement of restoration. Achievement of restoration shall be determined using one of the following methods:(A) when all mean concentration values from groundwater samples from all baseline wells for a restoration parameter are equal to or below (or, in the case of pH, within an established range) the restoration table value for that parameter, then restoration for that parameter will be assumed to have occurred. Complete restoration will be assumed to have occurred when mean concentration values from all samples from all baseline wells for all restoration parameters are equal to or below (or, in the case of pH, within an established range) each respective restoration table value; or(B) a statistical analysis of information from groundwater samples from baseline wells proposed by the owner or operator and approved by the executive director that demonstrates that the groundwater quality is representative of the restoration table values.(b) Mining completion. When the mining of a permit or production area is completed, the permittee shall notify the appropriate commission regional office and the executive director and shall proceed to reestablish groundwater quality in the affected permit or production area aquifers in accordance with the requirements of subsection (a) of this section. Restoration efforts shall begin as soon as practicable but no later than 30 days after mining is completed in a particular production area. The executive director, subject to commission approval, may grant a variance from the 30-day period for good cause shown.(c) Timetable. Aquifer restoration, for each permit or production area, shall be accomplished in accordance with the timetable specified in the currently approved mine plan, unless otherwise authorized by the commission. Authorization for expansion of mining into new production areas may be contingent upon achieving restoration progress in previously mined production areas within the schedule set forth in the mine plan. The commission may amend the permit to allow an extension of the time to complete restoration after considering the following factors:(1) efforts made to achieve restoration by the original date in the mine plan;(2) technology available to restore groundwater for particular parameters;(3) the ability of existing technology to restore groundwater to baseline quality in the area;(4) the cost of achieving restoration by a particular method;(5) the amount of water which would be used or has been used to achieve restoration;(6) the need to make use of the affected aquifer; and(7) complaints from persons affected by the permitted activity.(d) Reports. Beginning six months after the date of initiation of restoration of a permit or production area, as defined in the mine plan, and until receiving written acknowledgment from the executive director that restoration for the production areas has been accomplished, the operator shall provide to the executive director semi-annual restoration progress reports. This report shall contain the following information:(1) all analytical data generated to monitor restoration progress for certain parameters, as approved by the executive director, during the previous six months;(2) graphs of analysis for each restoration parameter for each baseline well or for each restoration parameter that has been amended in accordance with subsection (g) of this section;(3) the volume of fluids injected and produced;(4) the volume of fluids disposed;(5) water level measurements for all baseline and monitor wells, and for any other wells being monitored;(6) a potentiometric map for the area of the production area authorization, based on the most recent water level measurements; and(7) a summary of the progress achieved towards aquifer restoration.(e) Restoration table values achieved. When the permittee determines that constituents in the aquifer have been restored to the values in the Restoration Table, the restoration shall be demonstrated by stability sampling in accordance with subsection (f) of this section.(f) Stability sampling. The permittee shall obtain stability samples and complete an analysis for all parameters listed in the restoration table from all production area baseline wells. Stability sampling may commence 60 days after cessation of restoration operations. Stability samples shall be conducted at a minimum of 30-day intervals for a minimum of three sample sets and reported to the executive director. The permittee shall notify the executive director at least two weeks in advance of sample dates to provide the opportunity for splitting samples and for selecting additional wells for sampling, if desired. To ensure water quality has stabilized, a period of one calendar year must elapse between cessation of restoration operations and the final set of stability samples. Upon acknowledgment in writing by the executive director confirming achievement of final restoration, the permittee shall accomplish closure of the area in accordance with §331.86 of this title (relating to Closure).(g) Amendment of restoration table or range table values. After an appropriate effort has been made to achieve restoration in accordance with the requirements of subsection (a) of this section, the permittee may cease restoration operations, reduce bleed and request that the restoration table be amended. With the request for amendment of the restoration table values, the permittee shall submit stability sampling results in accordance with subsection (f) of this section. The permittee shall notify the executive director of his or her intent to cease restoration operations and reduce the bleed 30 days prior to implementing these steps. If any restoration table value for any parameter listed in the restoration table will exceed the maximum value for the respective parameter in the permit range table, the permittee must submit an application for a major amendment of the permit range table.(1) In determining whether the restoration table or range table should be amended, the commission will consider the following items addressed in the request:(A) uses for which the groundwater in the production area was suitable at baseline water quality levels;(B) actual existing use of groundwater in the production area prior to and during mining;(C) potential future use of groundwater of baseline quality and of proposed restoration quality;(D) the effort made by the permittee to restore the groundwater to baseline;(E) technology available to restore groundwater for particular parameters;(F) the ability of existing technology to restore groundwater to baseline quality in the area under consideration;(G) the cost of further restoration efforts;(H) the consumption of groundwater resources during further restoration; and(I) the harmful effects of levels of particular parameter.(2) The commission may amend the restoration table or range table if it finds that:(A) reasonable restoration efforts have been undertaken, giving consideration to the factors listed in paragraph (1) of this subsection;(B) the values for the parameters describing water quality have stabilized for a period of one year;(C) the formation water present in the exempted portion of the aquifer would be suitable for any use to which it was reasonably suited prior to mining; and(D) further restoration efforts would consume energy, water, or other natural resources of the state without providing a corresponding benefit to the state.(3) If the restoration table is amended, stability sampling shall be repeated and conducted as described in subsection (f) of this section, except that only the parameters that were amended in accordance with this subsection will be sampled and a period of two calendar years must elapse between cessation of restoration operations and the final set of stability samples unless the permittee can demonstrate through modeling or other means that a period of less than two years is appropriate for a demonstration of stability.(4) If the request for an amendment of the restoration table or range table values is not granted, the permittee shall restart restoration efforts.</content><note type="source"><p>Source Note: The provisions of this §331.107 adopted to be effective May 13, 1986, 11 TexReg 1985; amended to be effective March 30, 1988, 13 TexReg 1339; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective March 12, 2009, 34 TexReg 1638; amended to be effective December 11, 2014, 39 TexReg 9586; amended to be effective December 6, 2018, 43 TexReg 7796.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scF/s331.108"><num value="331.108">§331.108</num><heading>Opportunity for a Contested Case Hearing on a Production Area Authorization Application</heading><content>(a) An application for a new production area authorization is not subject to opportunity for a contested case hearing if:(1) the authorization is for a production area within the boundary of the permit under which the authorization will be issued and the permit includes a range table with values established in accordance with the requirements in §305.49(a)(10) of this title (relating to Additional Contents of Application for an Injection Well Permit);(2) the application includes a restoration table with restoration parameter values that do not exceed the high values for the respective parameters in the permit range table; and(3) the application is for a production area within the boundary of the permit under which the proposed authorization will be issued, and the application meets the requirements at §331.104(a) - (d) of this title (relating to Establishment of Baseline and Control Parameters for Excursion Detection) regarding baseline wells; or(4) the application requests authorization for a new, and subsequent, production area within the permit boundary of a permit after the first production area authorization has been issued for a production area within the permit boundary.(b) An application to amend a restoration table included in an issued production area authorization is not subject to opportunity for a contested case hearing if the restoration parameter values in the proposed amended restoration table do not exceed the respective values in the permit range table included in the permit under which the production area authorization was issued.(c) An application to amend a restoration table to increase any restoration table value included in an issued production area authorization is subject to opportunity for a contested case hearing if the permit under which the production area authorization was issued does not include a permit range table, established in accordance with the requirements of §305.49(a)(10) of this title.</content><note type="source"><p>Source Note: The provisions of this §331.108 adopted to be effective March 12, 2009, 34 TexReg 1638; amended to be effective December 11, 2014, 39 TexReg 9586.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scF/s331.109"><num value="331.109">§331.109</num><heading>Cost Estimates for Financial Assurance</heading><content>(a) Each production area authorization must establish the amount of financial assurance for aquifer restoration of the production area based upon cost estimates provided under §331.143 of this title (relating to Cost Estimate for Plugging and Abandonment and Aquifer Restoration) approved by the executive director.(b) Each area permit or production area authorization must establish the amount of financial assurance for plugging and abandonment of the injection wells, production wells, recovery wells, monitor wells, and baseline wells of the permit area or production area based upon cost estimates provided under §331.143 of this title approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §331.109 adopted to be effective March 12, 2009, 34 TexReg 1638.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scF/s331.110"><num value="331.110">§331.110</num><heading>General Requirements for Production Area Authorization</heading><content>(a) A production area authorization may not authorize the use of groundwater from a well for purposes of providing supplemental production water.(b) A production area authorization may not expand a permit boundary or authorize a production area outside of a permit boundary.(c) A production area authorization may not authorize a reduction in the number of monitor wells or increase the distance between wells as required under §331.103 of this title (relating to Production Area Monitor Wells).</content><note type="source"><p>Source Note: The provisions of this §331.110 adopted to be effective December 11, 2014, 39 TexReg 9586.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c331/scG"><num value="G">SUBCHAPTER G</num><heading>CONSIDERATION PRIOR TO PERMIT ISSUANCE</heading><section identifier="/us/state/tx/tac/t30/p1/c331/scG/s331.121"><num value="331.121">§331.121</num><heading>Class I Wells</heading><content>(a) The commission shall consider the following before issuing a Class I Injection Well Permit:(1) all information in the completed application for permit;(2) all information in the Technical Report submitted with the application for permit in accordance with §305.45(a)(8) of this title (relating to Contents of Application for Permit). Subparagraphs (A) - (Q) of this paragraph apply to all Class I wells except those Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals. Information to be considered includes, but is not limited to:(A) a map showing the location of the injection well for which a permit is sought and the applicable area of review. Within the area of review, the map must show the number, or name, and location of all producing wells, injection wells, abandoned wells, dry holes, surface bodies of water, springs, mines (surface and subsurface), quarries, water wells, and other pertinent surface features, including residences and roads. The map should also show faults, if known or suspected. Only information of public record is required to be included on this map;(B) a tabulation of all wells within the area of review which penetrate the injection zone or confining zone, and for salt dome cavern disposal wells, the salt dome cavern injection zone, salt dome cavern confining zone and caprock. Such data shall include a description of each well's type, construction, date drilled, location, depth, record of plugging and/or completion, and any additional information the executive director may require;(C) the protocol followed to identify, locate, and ascertain the condition of abandoned wells within the area of review which penetrate the injection or the confining zones;(D) maps and cross-sections indicating the general vertical and lateral limits of underground sources of drinking water (USDWs) and freshwater aquifers, their positions relative to the injection formation and the direction of water movement, where known, in each USDW or freshwater aquifer which may be affected by the proposed injection;(E) maps, cross-sections, and description of the geologic structure of the local area;(F) maps, cross-sections, and description of the regional geologic setting;(G) proposed operating data:(i) average and maximum daily injection rate and volume of the fluid or waste to be injected over the anticipated life of the injection well;(ii) average and maximum injection pressure;(iii) source of the waste streams;(iv) an analysis of the chemical and physical characteristics of the waste streams;(v) for salt dome cavern waste disposal, the bulk waste density, permeability, porosity, and compaction rate, as well as the individual physical characteristics of the wastes and transporting media;(vi) for salt dome cavern waste disposal, the results of tests performed on the waste to demonstrate that the waste will remain solid under cavern conditions; and(vii) any additional analyses which the executive director may reasonably require;(H) proposed formation testing program to obtain an analysis of the chemical, physical, and radiological characteristics of formation fluids, and other information on the injection zone and confining zone;(I) proposed stimulation program, if needed;(J) proposed operation and injection procedures;(K) engineering drawings of the surface and subsurface construction details of the injection well;(L) contingency plans, based on a reasonable worst-case scenario, to cope with all shut-ins; loss of cavern integrity, or well failures so as to prevent migration of fluid into any USDW;(M) plans (including maps) for meeting the monitoring requirements of this chapter, such plans shall include all parameters, test methods, sample methods, and quality assurance procedures necessary and used to meet these requirements;(N) for wells within the area of review which penetrate the injection zone or confining zone but are not adequately constructed, completed, or plugged, the corrective action proposed to be taken;(O) construction procedures including a cementing and casing program, contingency cementing plan for managing lost circulation zones and other adverse subsurface conditions, well materials specifications and their life expectancy, logging procedures, deviation checks, and a drilling, testing, and coring program;(P) delineation of all faults within the area of review, together with a demonstration, unless previously demonstrated to the commission or to the United States Environmental Protection Agency, that the fault is not sufficiently transmissive or vertically extensive to allow migration of hazardous constituents out of the injection zone; and(Q) the authorization status of the pre-injection units for the injection well.(3) This paragraph applies to those Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals. Information to be considered includes, but is not limited to:(A) a map showing the injection well(s) for which a permit is sought and the applicable area of review. Within the area of review, the map must show the number, or name, and location of all producing wells, dry holes, surface bodies of water, springs, mines (surface and subsurface), quarries, water wells and other pertinent surface features including residences and roads. The map should also show faults, if known or suspected. Only information of public record is required to be included on this map;(B) a tabulation of data on all wells within the area of review that penetrate into the proposed injection zone. Such data shall include a description of each well's type, construction, date drilled, location, depth, record of plugging and/or completion, and any additional information the executive director may require;(C) a topographic map (or other map if a topographic map is unavailable) extending one mile beyond the property boundaries of the source depicting the facility and each of its intake and discharge structures; each of its hazardous waste treatment, storage, or disposal facilities; each well where fluids from the facility are injected underground; and those wells, springs, and other surface water bodies, and drinking water wells listed in public records or otherwise known to the applicant within a quarter mile of the facility property boundary;(D) maps and cross sections indicating the general vertical and lateral limits of all USDW within the area of review, their position relative to the injection formation and the direction of water movement, where known, in each USDW which may be affected by the proposed injection;(E) maps and cross sections detailing the geologic structure of the local area;(F) generalized maps and cross sections illustrating the regional geologic setting;(G) proposed operating data:(i) average and maximum daily rate and volume of the fluid to be injected;(ii) average and maximum injection pressure; and(iii) source and an analysis of the chemical, physical, radiological and biological characteristics of injection fluids;(H) proposed formation testing program to obtain an analysis of the chemical, physical and radiological characteristics of and other information on the receiving formation;(I) proposed stimulation program;(J) proposed injection procedure;(K) schematic or other appropriate drawings of the surface and subsurface construction details of the well;(L) contingency plans to cope with all shut-ins or well failures so as to prevent migration of fluids into any USDW;(M) plans (including maps) for meeting the monitoring requirements in §331.64 of this title (relating to Monitoring and Testing Requirements);(N) for wells within the area of review which penetrate the injection zone but are not properly completed or plugged, the corrective action proposed to be taken under §331.45(2)(G) of this title (relating to Executive Director Approval of Construction and Completion); and(O) construction procedures including a cementing and casing program, logging procedures, deviation checks, and a drilling, testing, and coring program; and(4) whether the applicant will assure, in accordance with Chapter 37, Subchapter Q of this title (relating to Financial Assurance for Underground Injection Control Wells), the resources necessary to close, plug, abandon, and if applicable, provide post-closure care for the well and/or waste disposal cavern as required;(5) the closure plan, corrective action plan, and post-closure plan submitted in the technical report accompanying the permit application; except that a post-closure plan is not required for those Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals; and(6) any additional information required by the executive director for the evaluation of the proposed injection well.(b) In determining whether the use or installation of an injection well is in the public interest under Texas Water Code, §27.051(a)(1), the commission shall also consider:(1) the compliance history of the applicant in accordance with Texas Water Code, §27.051(e) and §281.21(d) of this title (relating to Draft Permit, Technical Summary, Fact Sheet, and Compliance History);(2) whether there is a practical, economic and feasible alternative to an injection well reasonably available to manage the types and classes of hazardous waste;(3) if the injection well will be used for the disposal of hazardous waste, whether the applicant will maintain liability coverage for bodily injury and property damage to third parties that is caused by sudden and nonsudden accidents in accordance with Chapter 37 of this title (relating to Financial Assurance); and(4) that any permit issued for a Class I injection well for disposal of hazardous wastes generated on site requires a certification by the owner or operator that:(A) the generator of the waste has a program to reduce the volume or quantity and toxicity of such waste to the degree determined by the generator to economically practicable; and(B) injection of the waste is that practicable method of disposal currently available to the generator which minimizes the present and future threat to human health and the environment.(c) The commission shall consider the following minimum criteria for siting before issuing a Class I injection well permit for all Class I wells except those Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals. For Class I wells authorized to inject only nonhazardous desalination concentrate or nonhazardous drinking water treatment residuals, only paragraph (1) of this subsection applies.(1) All Class I injection wells shall be sited such that they inject into a formation that is beneath the lowermost formation containing, within 1/4 mile of the wellbore, a USDW or freshwater aquifer.(2) The siting of Class I injection wells shall be limited to areas that are geologically suitable. The executive director shall determine geologic suitability based upon:(A) an analysis of the structural and stratigraphic geology, the hydrogeology, and the seismicity of the region;(B) an analysis of the local geology and hydrogeology of the well site, including, at a minimum, detailed information regarding stratigraphy, structure, and rock properties, aquifer hydrodynamics, and mineral resources; and(C) a determination that the geology of the area can be described confidently and that limits of waste fate and transport can be accurately predicted through the use of analytical and numerical models.(3) Class I injection wells shall be sited such that:(A) the injection zone has sufficient permeability, porosity, thickness, and areal extent to prevent migration of fluids into USDWs or freshwater aquifers;(B) the confining zone:(i) is laterally continuous and free of transecting, transmissive faults or fractures over an area sufficient to prevent the movement of fluids into a USDW or freshwater aquifer; and(ii) contains at least one formation of sufficient thickness and with lithologic and stress characteristics capable of preventing initiation and/or propagation of fractures.(4) The owner or operator shall demonstrate to the satisfaction of the executive director that:(A) the confining zone is separated from the base of the lowermost USDW or freshwater aquifer by at least one sequence of permeable and less permeable strata that will provide an added layer of protection for the USDW or freshwater aquifer in the event of fluid movement in an unlocated borehole or transmissive fault; or(B) within the area of review, the piezometric surface of the fluid in the injection zone is less than the piezometric surface of the lowermost USDW or freshwater aquifer, considering density effects, injection pressures, and any significant pumping in the overlying USDW or freshwater aquifer; or(C) there is no USDW or freshwater aquifer present;(D) the commission may approve a site which does not meet the requirements in subparagraphs (A), (B), or (C) of this paragraph if the owner or operator can demonstrate to the commission that because of the geology, nature of the waste, or other considerations, that abandoned boreholes or other conduits would not cause endangerment of USDWs, and fresh or surface water.(d) The commission shall also consider the following additional information, which must be submitted in the technical report of the application as part of demonstrating that the facility will meet the performance standard in §331.162 of this title (relating to Performance Standard), before issuing a salt dome cavern Class I injection well permit:(1) a thorough characterization of the salt dome to establish the geologic suitability of the location, including:(A) data and interpretation from all appropriate geophysical methods (such as well logs, seismic surveys, and gravity surveys), subject to the approval of the executive director, necessary to:(i) map the overall geometry of the salt dome, including all edges and any suspected overhangs of the salt stock;(ii) demonstrate the existence of a minimum distance of 500 feet between the boundaries of the proposed salt dome cavern injection zone and the boundaries of the salt stock;(iii) define the composition and map the top and thickness of the sedimentary rock units between the caprock and surface, including the flanks of the salt stock;(iv) define the composition and map the top and thickness of the caprock overlying the salt stock;(v) map the top of the salt stock;(vi) calculate the movement and the salt loss rate of the salt stock;(vii) define any other caverns and other uses of the salt dome, and address any conditions that may result in potential adverse impact on the salt dome; and(viii) satisfy any other requirement of the executive director necessary to demonstrate the geologic suitability of the location;(B) a surface-recorded three-dimensional seismic survey, subject to the following minimum requirements:(i) the lateral extent of the survey will be determined by the executive director; and(ii) the survey must provide information as part of demonstrating that the location is geologically suitable for the purpose of meeting the performance standard in §331.162 of this title;(C) identification of any unusual features, such as depressions or lineations observable at the land surface or within or detectable within the subsurface, which may be indicative of underlying anomalies in the caprock or salt stock, which might affect construction, operation, or closure of the cavern;(D) the petrology of the caprock, salt stock, and deformed strata; and(E) for strata surrounding the salt stock, information on their nature, structure, hydrodynamic properties, and relationships to USDWs, including a demonstration that the proposed salt dome cavern injection zone will not be in or above a formation which within 1/4 mile of the salt dome cavern injection zone contains a USDW;(2) establishment of a pre-development baseline for subsidence and groundwater monitoring, over the area of review;(3) characterization of the predicted impact of the proposed operations on the salt stock, specifically the extent of the disturbed zone;(4) demonstration of adequate separation between the outer limits of the injection zone and any other activities in the domal area. The thickness of the disturbed zone, as well as any additional safety factors will be taken into consideration; and(5) the commission will consider the presence of salt cavern storage activities, sulfur mining, salt mining, brine production, oil and gas activity, and any other activity which may adversely affect or be affected by waste disposal in a salt cavern.(e) Information requirements for Class I hazardous waste injection well permits.(1) The following information is required for each active Class I hazardous waste injection well at a facility seeking an underground injection control permit:(A) dates well was operated; and(B) specification of all wastes that have been injected in the well, if available.(2) The owner or operator of any facility containing one or more active hazardous waste injection wells must submit all available information pertaining to any release of hazardous waste or constituents from any active hazardous waste injection well at the facility.(3) The owner or operator of any facility containing one or more active Class I hazardous waste injection wells must conduct such preliminary site investigations as are necessary to determine whether a release is occurring, has occurred, or is likely to have occurred.(f) Interim Status under the Resource Conservation Recovery Act (RCRA) for Class I hazardous waste injection wells. The minimum state standards which define acceptable injection of hazardous waste during the period of interim status are set out in this chapter. The issuance of an underground injection well permit does not automatically terminate RCRA interim status. A Class I well's interim status does, however, automatically terminate upon issuance of a RCRA permit for that well, or upon the well's receiving a RCRA permit-by-rule under §335.47 of this title (relating to Special Requirements for Persons Eligible for a Federal Permit by Rule). Thus, until a Class I well injecting hazardous waste receives a RCRA permit or RCRA permit-by-rule, the well's interim status requirements are the applicable requirements imposed under this chapter, including any requirements imposed in the underground injection control permit.</content><note type="source"><p>Source Note: The provisions of this §331.121 adopted to be effective May 13, 1986, 11 TexReg 1987; amended to be effective July 5, 1989, 14 TexReg 3047; amended to be effective November 7, 1991, 16 TexReg 6064; amended to be effective June 22, 1992, 17 TexReg 4097; amended to be effective November 23, 1993, 18 TexReg 8217; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective March 21, 2000, 25 TexReg 2385; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective December 16, 2001, 26 TexReg 10103; amended to be effective May30, 2002, 27 TexReg 4576; amended to be effective January 9, 2003, 28 TexReg 340; amended to be effective July 10, 2008, 33 TexReg 5342; amended to be effective August 16, 2012, 37 TexReg 6078; amended to be effective January 7, 2021, 46 TexReg 191.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scG/s331.122"><num value="331.122">§331.122</num><heading>Class III Wells</heading><content>The commission shall consider the following before issuing a Class III Injection Well or Area Permit:(1) all information in the completed application for permit;(2) all information in the Technical Report submitted with the application for permit, including the following:(A) a map showing the injection well(s) and area for which the permit is sought and the applicable area of review. Within the area of review, the map must show the number, or name, and location of all existing producing wells, injection wells, dry holes, surface bodies of water, mines (surface and subsurface), quarries, public water systems, water wells, and other pertinent surface features, including residences and roads. The map should also show faults, if known or suspected. Only information of public record is required to be on this map. If production area authorizations are required prior to the commencement of mining, the proposed production areas must be shown on the map;(B) a tabulation of reasonably available data on all wells within the area of review which penetrate the proposed injection zone. This data shall include a description of each well's type, construction, date drilled, location, depth, record of plugging and completion, and any additional information the executive director may require;(C) maps and cross-sections indicating the vertical and lateral limits of those aquifers within the area of review that contain water with less than 10,000 milligrams per liter of total dissolved solids, their position relative to the injection formation, and the direction of water movement;(D) maps and cross-sections, detailing the geologic structure of the local area;(E) generalized map and cross-sections illustrating the regional geologic setting;(F) proposed operating data:(i) average and maximum daily rate and volume of fluid to be injected;(ii) average and maximum injection pressure;(iii) source of the injection fluids; and(iv) analysis, as needed, of the chemical, physical, and radiological characteristics of the injection fluids;(G) proposed formation testing program to obtain an analysis of the physical, chemical, and radiological characteristics of the receiving formation;(H) proposed stimulation program;(I) proposed operation and injection procedure;(J) engineering drawings of the surface and subsurface construction details of the system;(K) plans (including maps) for meeting the minimum monitoring requirements of the rules;(L) expected changes in pressure, native fluid displacement, direction of movement of injection fluid;(M) contingency plans to cope with all shut-ins or well failures so as to prevent the migration of contaminating fluids into fresh water;(N) the corrective action proposed to be taken under §331.44 of this title (relating to Corrective Action Standards); and(O) the permit range table required under §305.49(a)(10) and §331.82(e)(7) of this title (relating to Additional Contents of Application for an Injection Well Permit; and Construction Requirements);(3) whether the applicant will assure, in accordance with Chapter 37, Subchapter Q of this title (relating to Financial Assurance for Underground Injection Control Wells), the resources necessary to close, plug, or abandon the well;(4) the closure plan, in accordance with §331.46 of this title (relating to Closure Standards), submitted in the Technical Report accompanying the application; and(5) any additional information reasonably required by the executive director for the evaluation of the proposed injection well or project.</content><note type="source"><p>Source Note: The provisions of this §331.122 adopted to be effective May 13, 1986, 11 TexReg 1987; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective April 28, 1997, 22 TexReg 3526; amended to be effective March 21, 2000, 25 TexReg 2385; amended to be effective December 11, 2014, 39 TexReg 9586.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c331/scH"><num value="H">SUBCHAPTER H</num><heading>STANDARDS FOR CLASS V WELLS</heading><section identifier="/us/state/tx/tac/t30/p1/c331/scH/s331.131"><num value="331.131">§331.131</num><heading>Applicability</heading><content>This subchapter applies to all Class V injection wells under the jurisdiction of the commission except those Class V wells authorized by rule under §331.9(b)(3) of this title (relating to Injection Authorized by Rule). Aquifer storage and recovery injection wells must also comply with Subchapter K of this chapter (relating to Additional Requirements for Class V Injection Wells Associated with Aquifer Storage and Recovery Projects) in addition to this subchapter. Aquifer recharge injection wells must also comply with Subchapter O of this chapter (relating to Additional Requirements for Class V Injection Wells Associated with Aquifer Recharge Projects) in addition to this subchapter.</content><note type="source"><p>Source Note: The provisions of this §331.131 adopted to be effective May 13, 1986, 11 TexReg 1988; amended to be effective June 25, 2000, 25 TexReg 5908; amended to be effective July 12, 2001, 26 TexReg 5019; amended to be effective December 29, 2016, 41 TexReg 10386; amended to be effective May 28, 2020, 45 TexReg 3458.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scH/s331.132"><num value="331.132">§331.132</num><heading>Construction Standards</heading><content>(a) Applicability. All Class V wells shall be completed in accordance with the specifications contained in this section, unless otherwise authorized by the executive director. Injection wells listed in Texas Occupations Code, §1901.001(8) shall be installed by a water well driller licensed by the Texas Department of Licensing and Regulation.(b) Reporting.(1) Prior to construction. Except for closed loop injection and air conditioning return flow wells, information required under §331.10(a) of this title (relating to Inventory or Wells Authorized by Rule) shall be submitted to the executive director for review and approval prior to construction. For large capacity septic systems, septic systems that accept industrial waste, and subsurface fluid distribution systems including subsurface area drip dispersal systems as defined in §222.5 of this title (relating to Definitions), the information required under §331.10(a) of this title shall be submitted as part of the wastewater discharge permit application filed under Chapter 305 of this title (relating to Consolidated Permits).(2) After completion of construction. Except for large capacity septic systems, subsurface fluid distribution systems, temporary injection points, closed loop injection wells, improved sinkholes, and air conditioning return flow wells, the Texas Department of Licensing and Regulation state well report form shall be submitted to the executive director within 30 days from the date the well construction is completed.(3) Closed loop and air conditioning return flow wells. No reporting prior to construction is necessary for these two types of wells. The Texas Department of Licensing and Regulation state well report form shall be completed and submitted to the executive director within 30 days from the date the well construction is completed. Any additives, constituents, or fluids (other than potable water) that are used in the closed loop injection well system shall be reported in the Water Quality Section on the state well report form.(4) Temporary injection points. Temporary injection points shall be completed in such a manner as to prevent movement of surface water or undesirable groundwater into underground sources of drinking water.(5) Large capacity septic systems, subsurface fluid distribution systems, and improved sinkholes. The owner or operator of large capacity septic systems, subsurface fluid distribution systems, and improved sinkholes must submit the well report form provided by the executive director within 30 days from the date well construction is completed.(c) Sealing of casing.(1) General. Except for closed loop injection wells, the annular space between the borehole and the casing shall be filled with cement slurry from ground level to a depth of not less than ten feet below the land surface or well head. In areas of shallow, unconfined groundwater aquifers, the cement need not be placed below the static water level. In areas of shallow, confined groundwater aquifers having artesian head, the cement need not be placed below the top of the water-bearing strata.(2) Closed loop injection well. The annular space of a closed loop injection well shall be backfilled to the total depth with impervious bentonite or a similar material. Where no groundwater or only one zone of groundwater is encountered, sand, gravel, or drill cuttings may be used to backfill up to 30 feet from the surface. The top 30 feet shall be filled with impervious bentonite. Alternative impervious materials may be authorized by the executive director upon request.(d) Surface completion.(1) With the exception of temporary injection points, subsurface fluid distribution systems, improved sinkholes, and large capacity septic systems, all wells must have a concrete slab or sealing block placed above the cement slurry around the well at the ground surface.(A) The slab or block shall extend at least two feet from the well in all directions and have a minimum thickness of four inches and shall be separated from the well casing by a plastic or mastic coating or sleeve to prevent bonding of the slab to the casing.(B) The surface of the slab shall be sloped so that liquid will drain away from the well.(2) For wells that use casing, the top of the casing shall extend a minimum of 12 inches above the original ground surface. The well casing shall be capped or completed in a manner that will prevent pollutants from entering the well.(3) Closed loop injection wells which are completed below grade are exempt from the surface completion standards in this subsection. Pitless adapters may be used in closed loop wells provided that:(A) the adapter is welded to the casing or fitted with another suitably effective seal; and(B) the annular space between the borehole and the casing is filled with cement to a depth not less than 15 feet below the adapter connection.(4) Temporary injection points shall be completed in such a manner as to prevent the movement of surface water or undesirable groundwater into underground sources of drinking water.(e) Optional use of a steel or polyvinyl chloride (PVC) sleeve. If the use of a steel or PVC sleeve is necessary to prevent possible damage to the casing, the steel sleeve shall be a minimum of 3/16 inches in thickness or the PVC sleeve shall be a minimum of Schedule 80 sun-resistant and 24 inches in length, and shall extend 12 inches into the cement slurry.(f) Well placement in a flood-prone area. All wells shall be located in areas not generally subject to flooding. If a well must be placed in a flood-prone area, it shall be completed with a watertight sanitary well seal to maintain a junction between the casing and injection tubing, and a steel sleeve extending a minimum of 36 inches above ground level and 24 inches below the ground surface shall be used. For the purpose of this subsection, a flood-prone area is defined as that area within the 100-year flood plain as determined on the Federal Emergency Management Agency (FEMA) Flood Hazard Maps for the National Flood Insurance Program. If FEMA has conducted a flood insurance study of the area, and has mapped the 50-year flood plain, then the smaller geographic areas within the 50-year boundary are considered to be flood-prone. Closed loop injection wells, improved sinkholes, and air conditioning return flow wells are exempt from the completion standards in this subsection.(g) Other protection measures.(1) Commingling prohibited. All wells, especially those that are gravel packed, shall be completed so that aquifers or zones containing waters that are known to differ significantly in chemical quality are not allowed to commingle through the borehole-casing annulus or the gravel pack and cause quality degradation of any aquifer containing fresh water.(2) Undesirable groundwater. When undesirable groundwater, which is water that is injurious to human health and the environment or water that can cause pollution to land or other waters, is encountered in a Class V well, the well shall be constructed so that the undesirable groundwater is isolated from any underground source of drinking water and is confined to the zone(s) of origin.(h) Sampling. For a Class V injection well, any required sampling shall be done at the point of injection, or as specified in a permit issued by the executive director.</content><note type="source"><p>Source Note: The provisions of this §331.132 adopted to be effective May 13, 1986, 11 TexReg 1988; amended to be effective June 25, 2000, 25 TexReg 5908; amended to be effective July 12, 2001, 26 TexReg 5019; amended to be effective July 5, 2006, 31 TexReg 5339; amended to be effective January 9, 2025, 50 TexReg 178.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scH/s331.133"><num value="331.133">§331.133</num><heading>Closure Standards for Injection Wells</heading><content>(a) It is the responsibility of the owner or operator to close a Class V well which is to be permanently discontinued or abandoned under standards set forth in this section unless the well must comply with §331.136 of this title (relating to Closure Standards for Motor Vehicle Waste Disposal Wells, Large Capacity Septic Systems, Large Capacity Cesspools, Subsurface Fluid Distribution Systems, and Drywells). The well must be closed in a manner that complies with §331.5 of this title (relating to Prevention of Pollution) and 40 Code of Federal Regulations (CFR) §144.12 ("prohibition of movement of fluid into underground sources of drinking water," effective June 2, 1987 at 48 FR 20676). Any contaminated soil, gravel, sludge, liquids, or other materials removed from or adjacent to the well must be managed in accordance with Chapter 350 of this title (relating to Texas Risk Reduction Program), and all other applicable federal, state, and local regulations and requirements.(b) Closure shall be accomplished by removing all of the removable casing and the entire well shall be pressure filled via a tremie pipe with cement from bottom to the land surface.(c) As an alternative to the procedure in subsection (b) of this section, if a Class V well is not completed through zones containing undesirable groundwater, water that is injurious to human health and the environment or water that can cause pollution to land or other waters, the well may be filled with fine sand, clay, or heavy mud followed by a cement plug extending from land surface to a depth of not less than ten feet below the land surface.(d) As an alternative to the procedure in subsection (b) of this section, if a Class V well is completed through zones containing undesirable groundwater, water that is injurious to human health and the environment or water that can cause pollution to land or other waters, either the zone(s) containing undesirable groundwater or the fresh groundwater zone(s) shall be isolated with cement plugs and the remainder of the wellbore filled with bentonite grout (9.1 pounds per gallon mud or more) followed by a cement plug extending from land surface to a depth of not less than ten feet below the land surface.(e) It is the responsibility of the owner or operator to ensure that temporary injection points are pressure grouted from the bottom of the well to the land surface, and the injection point is sealed to prevent the migration of fluids into underground sources of drinking water.(f) It is the responsibility of the owner or operator to close improved sinkholes in a manner that prohibits the movement of contaminated fluids into underground sources of drinking water, in compliance with §331.5 of this title, and 40 CFR §144.12 (as amended through June 2, 1987 at 48 FR 20676); and to demonstrate that any fluids released through the closed well will meet the primary maximum contaminant levels (MCLs) for drinking water contained in 40 CFR Part 141, and other appropriate health-based standards at the point of injection.</content><note type="source"><p>Source Note: The provisions of this §331.133 adopted to be effective May 13, 1986, 11 TexReg 1988; amended to be effective June 25, 2000, 25 TexReg 5908; amended to be effective July 12, 2001, 26 TexReg 5019.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scH/s331.135"><num value="331.135">§331.135</num><heading>Construction Standards for Large Capacity Septic Systems</heading><content>(a) Large capacity septic systems shall be constructed in accordance with the terms of the wastewater discharge permit obtained under Chapter 305 of this title (relating to Consolidated Permits).(b) During construction, movement of fluids which might contaminate an underground source of drinking water, violate primary drinking water standards, or violate other health-based standards is prohibited.</content><note type="source"><p>Source Note: The provisions of this §331.135 adopted to be effective July 12, 2001, 26 TexReg 5019.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scH/s331.136"><num value="331.136">§331.136</num><heading>Closure Standards for Motor Vehicle Waste Disposal Wells, Large Capacity Septic Systems, Large Capacity Cesspools, Subsurface Fluid Distribution Systems, and Drywells</heading><content>(a) The owner or operator of a Class V motor vehicle waste disposal well, large capacity septic system, large capacity cesspool, subsurface fluid distribution system, or drywell that is to be permanently discontinued or abandoned must close the well under the standards set forth in this section.(b) The owner or operator of a large capacity cesspool or motor vehicle waste disposal well must submit a preclosure notice form provided by the executive director no later than 30 days prior to closure.(c) The owner or operator of a large capacity cesspool, large capacity septic system, subsurface fluid distribution system, drywell, or motor vehicle waste disposal well must:(1) close the well in a manner that prohibits the movement of fluids into underground sources of drinking water, in compliance with §331.5 of this title (relating to Prevention of Pollution), and 40 Code of Federal Regulations §144.12 ("prohibition of movement of fluid into underground sources of drinking water," as amended through June 2, 1987 at 48 FR 20676);(2) dispose or otherwise manage any contaminated soil, gravel, sludge, liquids, or other materials removed from or adjacent to the well in accordance with Chapter 350 of this title (relating to Texas Risk Reduction Program) and all other applicable federal, state, and local regulations and requirements; and(3) submit a closure report to the executive director within 60 days of closing the well.</content><note type="source"><p>Source Note: The provisions of this §331.136 adopted to be effective July 12, 2001, 26 TexReg 5019.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scH/s331.137"><num value="331.137">§331.137</num><heading>Permit for Motor Vehicle Waste Disposal Wells</heading><content>An owner or operator of a motor vehicle waste disposal well who wishes to continue operation of a well may apply for an underground injection control permit. A Class V motor vehicle waste disposal permit shall contain the following minimum requirements.(1) The owner or operator of a Class V motor vehicle waste disposal well must demonstrate that fluids released through the well will meet the primary maximum contaminant levels (MCLs) for drinking water contained in 40 Code of Federal Regulations (CFR) Part 141, and other appropriate health-based standards at the point of injection as specified in the Class V permit.(2) The owner or operator of a Class V motor vehicle waste disposal well must follow specified best management plans (BMPs) for motor vehicle-related facilities as specified in the Class V permit.(3) The owner or operator of a Class V motor vehicle waste disposal well must monitor the quality of the injectate and sludge (if present in dry wells or tanks holding injectate) both initially and on a continuing basis as specified in the Class V permit to demonstrate compliance with the primary MCLs for drinking water contained in 40 CFR Part 141.</content><note type="source"><p>Source Note: The provisions of this §331.137 adopted to be effective July 12, 2001, 26 TexReg 5019.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c331/scI"><num value="I">SUBCHAPTER I</num><heading>FINANCIAL RESPONSIBILITY</heading><section identifier="/us/state/tx/tac/t30/p1/c331/scI/s331.142"><num value="331.142">§331.142</num><heading>Financial Assurance</heading><content>(a) The permittee shall secure and maintain financial assurance for plugging and abandonment in the amount of the plugging and abandonment cost estimate for Class I, Class I salt cavern disposal wells and associated salt caverns, and Class III wells in a manner that meets the requirements of Chapter 37, Subchapter Q of this title (relating to Financial Assurance for Underground Injection Control Wells). Financial assurance for plugging and abandonment shall be provided in the amount of the plugging and abandonment cost estimate as provided in §331.143 of this title (relating to Cost Estimate for Plugging and Abandonment and Aquifer Restoration). Financial assurance for post closure of Class I hazardous wells shall be provided in the amount of the post closure cost estimate.(b) The permittee of a hazardous waste Class I waste injection well shall establish and maintain sufficient liability coverage for bodily injury and property damage to third parties caused by sudden or nonsudden accidental occurrences arising from operations of the facility that meets the requirements of Chapter 37 of this title (relating to Financial Assurance) and §305.154(a)(11) of this title (relating to Standards).(c) The requirement to maintain financial responsibility is enforceable regardless of whether the requirement is a condition of the permit.</content><note type="source"><p>Source Note: The provisions of this §331.142 adopted to be effective October 16, 1992, 17 TexReg 6780; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective March 21, 2000, 25 TexReg 2385; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scI/s331.143"><num value="331.143">§331.143</num><heading>Cost Estimate for Plugging and Abandonment and Aquifer Restoration</heading><content>(a) The owner or operator must prepare a written estimate, in current dollars, of the cost of:(1) plugging the well(s) in accordance with the plugging and abandonment plan as specified in this chapter; and(2) aquifer restoration for each production area authorization.(b) Cost Estimates.(1) The cost estimates required under subsection (a)(1) of this section must take into account all costs related to plugging and abandonment in accordance with the applicable requirements of §331.46 of this title (relating Closure Standards) and the requirements of §331.86 of this title (relating to Closure).(2) The cost estimate required under subsection (a)(2) of this section must take into account all costs related to aquifer restoration.(c) During the operating life of the facility, the owner or operator must keep at the facility the latest cost estimates for plugging and abandonment and for aquifer restoration prepared in accordance with subsection (a) of this section.(d) On or before December 31st of each year, the owner or operator shall review and update as necessary the written estimate of the cost of plugging all wells and the cost of aquifer restoration to account for changes in costs exclusive of the inflation adjustment required under §37.131 of this title (relating to Annual Inflation Adjustments to Closure Cost Estimates). This update shall be submitted to the executive director no later than January 31st of each year.</content><note type="source"><p>Source Note: The provisions of this §331.143 adopted to be effective October 16, 1992, 17 TexReg 6780; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective March 21, 2000, 25 TexReg 2385; amended to be effective March 12, 2009, 34 TexReg 1638.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scI/s331.144"><num value="331.144">§331.144</num><heading>Approval of Plugging and Abandonment</heading><content>Within 60 days after receiving certifications from the owner or operator and an independent licensed professional engineer or licensed professional geoscientist that plugging and abandonment has been accomplished in accordance with the plugging and abandonment plan, the executive director will notify the owner or operator in writing that he is no longer required by this section to maintain financial assurance for plugging and abandonment of the well, unless the executive director has reason to believe that plugging and abandonment has not been in accordance with the plugging and abandonment plan. Financial assurance may not be released without the written approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §331.144 adopted to be effective October 16, 1992, 17 TexReg 6780; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective March 21, 2000, 25 TexReg 2385; amended to be effective October 2, 2003, 28 TexReg 8367.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c331/scJ"><num value="J">SUBCHAPTER J</num><heading>STANDARDS FOR CLASS I SALT DOME CAVERN DISPOSAL WELLS</heading><section identifier="/us/state/tx/tac/t30/p1/c331/scJ/s331.161"><num value="331.161">§331.161</num><heading>Applicability</heading><content>The sections of this subchapter apply to all Class I salt cavern disposal wells and their associated salt caverns located in the salt stocks of salt domes, and not to such facilities in horizontally bedded or non-domal salt.</content><note type="source"><p>Source Note: The provisions of this §331.161 adopted to be effective June 22, 1992, 17 TexReg 4097; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective May 30, 2002, 27 TexReg 4576; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scJ/s331.162"><num value="331.162">§331.162</num><heading>Performance Standard</heading><content>The operator and permittee shall assure for construction, operation, maintenance, monitoring, closure, and post-closure of a Class I salt cavern disposal well and associated cavern, the continuous attainment of a performance standard of no escape of waste from the salt cavern injection zone. The provisions of this chapter, as well as any permit or order issued by the commission, shall be construed as minimum operating requirements. To qualify for a permit or to otherwise operate a Class I salt cavern disposal well and associated cavern, permit applicants and facility operators must demonstrate that this performance standard will be satisfied even if it is necessary to go beyond the minimum operating requirements described in this chapter.</content><note type="source"><p>Source Note: The provisions of this §331.162 adopted to be effective June 22, 1992, 17 TexReg 4097; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scJ/s331.163"><num value="331.163">§331.163</num><heading>Well Construction Standards</heading><content>(a) Plans and specifications. Except as specifically required in the terms of the disposal well permit, drilling and completion of the well shall be done in accordance with all permit application plans and specifications. Any proposed changes to the plans and specifications must be approved in writing by the executive director that said changes provide protection standards equivalent to or greater than the original design criteria.(b) Casing and cementing.(1) All Class I salt cavern disposal wells shall be cased and all casings which extend to the surface shall be cemented to the surface to prevent the movement of fluids and waste into or between underground sources of drinking water (USDWs) or freshwater aquifers, and to prevent potential leaks of fluids and waste from the well. Cementing shall be by the pump and plug or other method approved by the commission, and cement circulated shall be of a volume equivalent to at least 120% of the calculated volume needed to fill the annular space between the hole and casing and between casing strings to the surface of the ground. Circulation of cement may be accomplished by staging. The executive director may approve an alternative method of cementing in cases where the cement cannot be recirculated to the surface, provided the owner or operator can demonstrate by using logs that the cement is continuous or does not allow any fluid and waste movement behind the well casings. Casing and cement used in the construction of each newly drilled well shall be designed for the life expectancy of the well, including the post-closure care period.(A) Surface casing shall be set to a minimum subsurface depth, as determined by the executive director, which extends into a confining bed below the lowest formation containing a USDW or freshwater aquifer.(B) At least one string of intermediate casing, using a sufficient number of centralizers, shall extend at least 100 feet into the salt stock.(C) At least one long string casing, using a sufficient number of centralizers, shall extend into the salt stock, to the following depths, whichever is greater:(i) 500 feet into the salt stock; or(ii) 500 feet below any rock type of recognizable thickness as determined by logging, which is different from salt, and that is hydraulically connected to formations outside the salt stock. For the purposes of this rule, all rock types of recognizable thickness on logs which are different from salt shall be assumed to be in hydraulic connection unless demonstrated otherwise.(2) In determining and specifying casing and cementing requirements, the following factors shall be considered:(A) depth of lowermost USDW or freshwater aquifer;(B) depth to the injection zone;(C) injection pressure, external pressure, internal pressure, and axial loading;(D) hole size;(E) size and grade of all casing strings (wall thickness, diameter, nominal weight, length, joint specification, and construction material);(F) the maximum burst and collapse pressures, and tensile stresses which may be experienced at any point along the length of the casings at any time during the construction, operation, and closure of the well;(G) corrosive effects of injected materials, formation fluids, and temperatures;(H) lithology of injection and confining zones;(I) types and grades of cement;(J) quantity and chemical composition of the injected fluid; and(K) cement and cement additives which must, at a minimum, be of sufficient quality and quantity to maintain integrity over the design life of the well.(c) Injection tubings. Except for circulation of drilling fluids during well construction, all injection activities for salt cavern construction and waste disposal in a salt cavern shall be performed using two concentric and removable injection tubings suspended from the wellhead.(1) All injection activities during cavern construction shall be performed with the annulus between the tubing and long string casing filled with a noncorrosive fluid sufficient to protect the bond between salt, cement, and the long string casing seat.(2) All injection of waste into a salt cavern shall be performed through the inner tubing with a packer to seal the annulus between the tubing and long string casing near the bottom of the long string casing.(d) Well annulus system factors for consideration. All elements of the design of the well's tubing-long string casing annulus system, including the outer tubing and packer, shall be approved by permit or by the executive director's approval that any proposed modifications to the plans and specifications in the permit application will provide protection equivalent to or greater than the original plans and specifications. In determining and specifying requirements for a tubing and packer system, the following factors shall be considered:(1) depth of setting;(2) characteristics of injection fluid and waste;(3) injection pressure;(4) annular pressure;(5) rate, temperature, and volume of injected fluid;(6) size of casing; and(7) tensile, burst, and collapse strengths of the tubing.(e) Logs and tests.(1) Geophysical logging. Appropriate logs and other tests shall be conducted during the drilling and construction phases of the well including drilling into the salt. All logs and tests shall be interpreted by the service company which processed the logs or conducted the test; or by other qualified persons. A minimum of the following logs and tests shall be conducted:(A) deviation checks on all holes, conducted at sufficiently frequent intervals to assure that avenues for fluid migration in the form of diverging holes are not created during drilling;(B) a spontaneous potential and resistivity log for all formations overlying the caprock;(C) from the ground surface or from the base of conductor casing to the total investigated depth including all core hole or pilot hole:(i) natural gamma ray log;(ii) compensated density and neutron porosity logs;(iii) acoustic or sonic log;(iv) inclination (directional) survey; and(v) caliper log (open hole);(D) from the ground surface or from the base of conductor casing to the lowermost casing seat:(i) cement bond with variable density log;(ii) temperature log (cased hole); and(iii) casing inspection log;(E) fracture detector log from the base of the surface casing to the total investigated depth including all core hole or pilot hole; and(F) a vertical seismic profile.(2) Pressure tests.(A) After installation and cementing of casings, and prior to drilling out the cemented casing shoe, surface casing shall be pressure tested at mill test pressure or 80% of the calculated internal pressure at minimum yield strength, and the intermediate and long string casing shall be tested to 1,500 pounds per square inch (psi) for 30 minutes, unless otherwise specified by the executive director.(B) After drilling out the cemented long string casing shoe, and prior to drilling more than 100 feet of core hole or pilot hole below the long string casing shoe, the bond between the salt, cement, and casing shall be tested at a pressure of 0.8 psi per foot of depth.(C) The pilot hole and/or core hole shall be tested between the long string casing shoe and the total investigated depth, at a casing seat pressure of 0.8 psi per foot of depth.(3) Coring.(A) Full-hole continuous cores shall be taken beginning at the top of the caprock, or if caprock is not encountered, from the top of the salt stock, to a total investigated depth of 1,000 feet below the intended cavern floor. Cores shall be analyzed at sufficient frequency to provide representative data for the caprock, salt cavern confining zone, and the salt cavern injection zone, including permeability, porosity, bulk density, compressive strength (uniaxial), shear strength (triaxial), water content, and compatibility with permitted waste material. The full-hole, continuous cores shall be photographed for permanent records. The photographs of the cores shall be submitted to the commission as a part of the well completion report as required by §331.167(a)(1) of this title (relating to Reporting Requirements). The cores shall be archived at a facility approved by the executive director. The photos and cores will be maintained as public records.(B) In situ permeability, lithostatic gradients, and fracture pressure gradients shall be determined in the core hole for the salt, within the cavern injection interval.(C) Prior to commencement of injection for cavern construction, the pilot hole or core hole shall be filled with salt-saturated cement from total investigated depth back to the designed depth of the salt cavern floor.(4) Well integrity testing. The mechanical integrity of a well must be demonstrated prior to initiation of injection activities. A mechanical integrity test shall consist of:(A) a pressure test with liquid or gas;(B) a temperature, noise log, or oxygen activation log;(C) a casing inspection log, if required by the executive director; and(D) any other test required by the executive director.(f) Compatibility. All well materials must be compatible with formations and fluids with which the materials may be expected to come into contact. A well shall be deemed to have compatibility as long as the materials used in the construction of the well meet or exceed standards developed for such materials by the American Petroleum Institute (API), the American Society for Testing Materials (ASTM), or comparable standards acceptable to the executive director.(g) Pre-injection units.(1) The injection pump system shall be designed to assure that the surface injection pressure limitations authorized by the well permit shall not be exceeded.(2) Instrumentation shall be installed to continuously monitor changes in annulus pressure and annulus fluid volume for the purpose of detecting well malfunctions.(3) Pre-injection units, while allowing for pressure release, shall be designed to prevent the release of unauthorized cavern contents to the atmosphere.(4) To protect the ground surface from spills and releases, the wellhead will have secondary containment in the form of a diked, impermeable pad or sump.(h) Construction supervision. All phases of well construction and all phases of any well workover shall be supervised by a licensed professional engineer or licensed professional geoscientist, as appropriate, with current registration under the Texas Engineering Practice Act or Texas Geoscience Practice Act, who is knowledgeable and experienced in practical drilling engineering and who is familiar with the special conditions and requirements of injection well construction.(i) Approval of completion of the well construction stage. Prior to beginning cavern construction, the permittee shall obtain written approval from the executive director which states that the well construction is in compliance with the applicable provisions of the permit. To obtain approval, the permittee shall submit to the executive director within 90 days of completion of well construction, including all logging, coring, and testing of the pilot hole, the following reports and certifications prepared and sealed by a licensed professional engineer or licensed professional geoscientist with current registration under the Texas Engineering Practice Act or Texas Geoscience Practice Act:(1) final construction, "as-built" plans and specifications, reservoir data, and an evaluation of the considerations set out in §331.45(2) of this title (relating to Executive Director Approval of Construction and Completion);(2) certification that construction of the well has been completed in accordance with the provisions of the disposal well permit and with the design and construction specifications of the permittee's application; and(3) certification that actual reservoir data obtained will not result in the need for a change in the operating parameters specified in the permit.</content><note type="source"><p>Source Note: The provisions of this §331.163 adopted to be effective June 22, 1992, 17 TexReg 4097; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective May 30, 2002, 27 TexReg 4576; amended to be effective January 9, 2003, 28 TexReg 340; amended to be effective October 2, 2003, 28 TexReg 8367.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scJ/s331.164"><num value="331.164">§331.164</num><heading>Cavern Construction Standards</heading><content>(a) Plans and specifications. Except as specifically required in the terms of the disposal well permit, construction of the cavern shall be done in accordance with all permit application plans and specifications. Any proposed changes to the plans and specifications must be certified in writing by the executive director that said changes provide protection standards equivalent to or greater than the original design criteria.(b) Standards for cavern construction by controlled dissolutioning. The creation of waste storage or disposal caverns within the salt shall be accomplished by the controlled dissolution of the sidewalls of the well bore to a specified maximum diameter, between selected elevations specified in the permit as the top and bottom of the salt cavern injection interval. The top of the cavern shall be at least 100 feet below the base of the long string casing. The enlargement of a portion of the original well bore to serve as the cavern shall be done according to the cavern construction plans which shall be submitted as a part of the permit application. The cavern construction plans shall demonstrate at a minimum, the following:(1) the minimum distance between the salt cavern injection zone boundaries and the boundaries of the salt stock, as determined by available geologic data, shall not be less than 500 feet;(2) adjacent caverns shall be separated by a minimum pillar to cavern diameter (P/D) ratio of 2.0 to ensure a sufficient amount of undisturbed salt for cavern safety and stability. Adjacent salt cavern injection zones shall also be separated by a confining thickness of salt;(3) that cavern dimensions have been designed by a qualified professional engineer and geologist, to ensure the structural integrity of the cavern;(4) plans for continual monitoring of the volumes of fluids injected and produced during cavern development;(5) plans for cavern pressure tests, and sonar surveys to determine the cavern dimensions, volume, geometric shape, and characterization of outbursts or other anomalies;(6) the cavern construction process shall be conducted under the supervision of a qualified professional engineer, with current registration under the Texas Engineering Practices Act, in accordance with accepted practices in the cavern construction industry.(7) all cavern solutioning brines shall be disposed of in facilities authorized by the commission for such purpose.(c) Injection tubing. Except for circulation of drilling fluids during well construction, all injection activities for salt cavern construction and waste disposal in a salt cavern shall be performed through removable injection tubings installed inside of the cemented long string casing and extending from the wellhead at ground surface to the salt borehole or salt cavern below the long string casing seat.(1) All injection activities during cavern construction shall be performed with the annulus between the outer tubing and long string casing filled with a non-corrosive inhibiting fluid sufficient to protect the bond between salt, cement, and the long string casing seat.(2) All injection of waste into a salt cavern shall be performed through removable injection tubing with a packer to seal the annulus between the tubing and long string casing near the bottom of the long string casing.(d) Logs and Tests.(1) The permit applicant shall submit, as part of its construction plan, information identifying the tests which it will use to verify cavern dimensions throughout the cavern construction process. This information shall include at a minimum, the following:(A) a description of surveys, logs, and tests to be run and analyzed, including any quantitative performance standards appropriate for any such procedure; and(B) the frequency of such surveys or logs.(2) Prior to waste filling, the integrity of the cavern shall be tested in accordance with a test method described in the applicant's cavern construction plan, specified by permit or approved by the executive director in accordance with subsection (a) of this section.(e) Workovers.(1) The permittee shall notify the executive director before commencing any workover operation or corrective maintenance which involves taking the injection well out of service. The notification shall be in writing and shall include plans for the proposed work. The executive director may grant an exception of the prior written notification when immediate action is required. Approval by the executive director shall be obtained before the permittee may begin any workover operation or corrective maintenance that involves taking the well out of service. Pressure control equipment shall be installed and maintained during workovers which involve the removal of tubing.(2) Well mechanical integrity shall be demonstrated following any major operations which involve removal of the injection tubing, recompletions, or unseating of the packer. Cavern integrity demonstration may be required by the executive director in instances where the integrity of the casing seat or cavern may be compromised.(f) Reports and approval.(1) Initial cavern integrity report. The operator shall submit a report with the results of all tests regarding cavern integrity, within 30 days of completion of the salt cavern construction stage.(2) Approval of completion of the cavern construction stage. Within 90 days of completion of cavern construction, including configuration of the well for waste disposal, and prior to beginning waste emplacement, the permittee shall obtain written approval from the executive director which states that the cavern construction is in compliance with the applicable provisions of the permit. To obtain approval, the permittee shall submit to the executive director the following reports and certifications prepared and sealed by a professional engineer with current registration pursuant to the Texas Engineering Practice Act:(A) final construction, "as-built" plans and specifications, injection and confining zone data, and an evaluation of the considerations under §331.45(2) of this title (relating to Executive Director Approval of Construction and Completion);(B) certification that the construction of the cavern has been completed in accordance with the provisions of the disposal well permit and with the design and construction specifications of the permittee's application;(C) certification that actual confining and injection zone data obtained will not result in need for a change in the operating parameters specified in the permit;(D) certification that the salt cavern injection zone will not be in or above a formation which within 1/4 mile of the salt cavern injection zone contains an underground source of drinking water.</content><note type="source"><p>Source Note: The provisions of this §331.164 adopted to be effective June 22, 1992, 17 TexReg 4097; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective November 23, 2000, 25 TexReg 11433.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scJ/s331.165"><num value="331.165">§331.165</num><heading>Waste Disposal Operating Requirements</heading><content>(a) General operating requirements.(1) Injection pressure at the wellhead shall not exceed a maximum, which shall be calculated, so as to assure that the pressure in the cavern during injection does not disrupt the bond between the salt, cement, and the casing seat, initiate new fractures or propagate existing fractures in the cavern or the confining zone, or cause movement of fluid or waste out of the injection zone.(2) Injection between the outermost casing protecting underground sources of drinking water (USDWs), and fresh or surface water and the wellbore is prohibited.(3) The annulus between the outer tubing and long string casing shall be filled with an inert gas approved by the commission. The annulus pressure, at all times that the well is in service, shall be at least 100 pounds per square inch greater than the injection tubing pressure, to detect well malfunctions, unless the executive director determines that such a requirement might harm the integrity of the well.(4) Chemical and physical characteristics of all injected materials and cavern contents, including but not limited to, bulk density and compressive strength of solidified waste, shall protect and be compatible with the injection well, associated facilities, and injection zone, and shall ensure proper operation of the facility to meet the performance standard of §331.162 of this title (relating to Performance Standard). In addition, after cavern construction is certified and a cavern is authorized to receive wastes under §331.164(f) of this title (relating to Cavern Construction Standards), all injected materials and cavern contents shall not cause further dissolution of the cavern walls.(5) The waste stream shall be stabilized, prior to injection, to minimize the generation of fluids in the cavern.(6) All injection of waste into a salt cavern shall be performed through the inner of two removable tubings with a packer to seal the annulus between the outer tubing and long string casing, near the bottom of the long string casing.(7) Unauthorized releases of cavern contents to the atmosphere are prohibited.(8) The cavern will be operated so as to control the extent of the disturbed zone.(9) If an automatic alarm or shutdown is triggered, the owner or operator shall immediately investigate and identify as expeditiously as possible the cause of the alarm or shutoff. If, upon such investigation, the well or cavern appears to be lacking integrity, or if monitoring required under §331.166(c) of this title (relating to Monitoring and Testing Requirements) otherwise indicates that the well or cavern lacks integrity, the owner or operator shall:(A) immediately cease injection of waste unless authorized by the executive director to continue or resume injection;(B) take all necessary steps to determine the presence or absence of a leak; and(C) notify the executive director within 24 hours after the alarm or shutdown.(10) If the loss of integrity is discovered pursuant to paragraph (3) of this subsection or during periodic integrity testing, the owner or operator shall:(A) immediately cease injection of waste;(B) take all steps required to determine whether there may have been a release of wastes into any unauthorized zone;(C) notify the executive director within 24 hours after loss of mechanical integrity is discovered;(D) notify the executive director when injection can be expected to resume; and(E) restore and demonstrate well mechanical integrity and/or cavern integrity to the satisfaction of the executive director prior to resuming injection of waste.(11) Whenever the owner or operator obtains evidence that there may have been a release of injected wastes into an unauthorized zone:(A) the owner or operator shall immediately cease injection of waste, and:(i) notify the executive director within 24 hours of obtaining such evidence;(ii) take all necessary steps to identify and characterize the extent of any release;(iii) propose a remediation plan for executive director review and approval;(iv) comply with any remediation plan specified by the executive director;(v) implement any remediation plan approved by the executive director; and(vi) where such release is into a USDW or freshwater aquifer currently serving as a water supply, within 24 hours notify the local health department, place a notice in a newspaper of general circulation and notify by mail the adjacent landowners;(B) the executive director may allow the operator to resume injection prior to completing cleanup action if the owner or operator demonstrates that the injection operation will not endanger USDWs or freshwater aquifers.(12) Cavern contents shall not interfere with the set-up of any stabilized waste injected after the waste and solidifying agents have been mixed, but is injected while is still pumpable and has not set.(13) Waste emplacement must be performed in such a manner as to minimize gas or fluid entrapment, so that compaction of wastes does not disrupt the integrity of the cavern.(14) A salt cavern disposal well shall be operated in a manner which will not generate high temperatures that will result in nonattainment of the performance standard of §331.162 of this title.(15) All fluids purged from the cavern after emplacement of any waste shall be managed at a waste management facility pursuant to applicable state and federal regulations.(b) Workovers.(1) The permittee shall notify the executive director before commencing any workover operation or corrective maintenance which involves taking the injection well out of service. The notification shall be in writing and shall include plans for the proposed work. The executive director may grant an exception of the prior written notification when immediate action is required. Approval by the executive director shall be obtained before the permittee may begin any workover operation or corrective maintenance that involves taking the well out of service. Pressure control equipment shall be installed and maintained during workovers which involve the removal of tubing.(2) Mechanical integrity of the well shall be demonstrated following any major operations which involve removal of the injection tubing, recompletions, or unseating of the packer.(c) Temporary cessation of operations.(1) An owner or operator of a Class I salt cavern disposal well who ceases injection operations temporarily, may keep the well open provided he:(A) has received written authorization from the executive director; and(B) has described actions or procedures, satisfactory to the executive director, that the owner or operator will take to ensure that the well will not endanger USDWs, and fresh or surface water during the period of temporary disuse. These actions and procedures shall include compliance with the technical requirements applicable to active injection wells, including mechanical integrity, and monitoring, unless waived by the executive director.(2) The owner or operator of a well that has ceased operations for more than two years shall notify the executive director, in writing, 30 days prior to resuming operation of the well.</content><note type="source"><p>Source Note: The provisions of this §331.165 adopted to be effective June 22, 1992, 17 TexReg 4097; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scJ/s331.166"><num value="331.166">§331.166</num><heading>Monitoring and Testing Requirements</heading><content>(a) Waste analysis plan. All material injected into or produced from the cavern shall be sampled and analyzed in accordance with the approved written waste analysis plan required by 40 Code of Federal Regulations §146.68(a).(b) Pressure gauges. Pressure gauges shall be installed and maintained in proper operating conditions at all times on both tubing strings and on the annulus between the outer tubing and long string casing/liner.(c) Continuous recording devices. Continuous recording devices shall be installed and used, and maintained in proper operating condition at all times to record tubing string pressures, injection flow rates (by volume or mass), injection waste temperatures, injection waste density, volume and composition of displaced fluids and gases, injection volumes, tubing-long string casing annulus pressure, volume of annulus contents, and any other data specified by the permit. The composition of emplaced and displaced gases will be continuously recorded and monitored for change in composition. When a change in composition is detected a sample will be taken to establish the chemical composition of the displaced gases. The instruments shall be housed in weatherproof enclosures. The owner or operator shall also install and use:(1) automatic alarm and automatic shutoff systems, designed to sound and shut-in the well when pressures and flow rates or other parameters approved by the executive director exceed a range and/or gradient specified in the permit; or(2) automatic alarms designed to sound when the pressures, flow rates, or other parameters approved by the executive director exceed a rate and/or gradient specified in the permit, in cases where the owner or operator certifies that a trained operator will be on location and able to immediately respond to alarms at all times when the well is operating.(d) Testing and calibration of monitoring instruments. All gauges, and pressure sensing and recording devices shall be tested and calibrated quarterly.(e) Well mechanical integrity. The owner or operator shall maintain mechanical integrity of the injection well at all times that the well is in service. Mechanical integrity of the well must be demonstrated:(1) within 12-month intervals, or within extended intervals not to exceed 15 months upon approval of the executive director, during the operating life of the well;(2) by a temperature log, noise log, or other approved log required by the executive director at least once every five years to test for fluid movement along the borehole; and(3) a casing inspection, casing evaluation, or other approved log may be required by the executive director to determine the condition of the casing.(f) Cavern integrity. The owner or operator must maintain cavern integrity at all times. The integrity of the cavern must be demonstrated within 12-month intervals, or within extended intervals not to exceed 15 months upon approval of the executive director, by:(1) pressure tests that determine if pressure interference or fluid flow exists between other caverns or formations; and(2) a sonar test, or other test approved by the executive director, to determine the geometric shape of the unfilled cavern.(g) Corrosion monitoring.(1) Corrosion monitoring of well materials shall be conducted quarterly. Test materials shall be the same as those used in the injection tubing, packer, and long string casing, and will be continuously exposed to the waste with the exception of when the well is taken out of service.(2) Corrosion monitoring may be waived by the executive director if the injection well owner or operator satisfactorily demonstrates, prior to authorization to conduct injection operations, that the waste will not be corrosive to the well materials with which the waste is expected to come into contact throughout the life of the well. The demonstration shall include a description of the methodology used to make that determination.(h) Ambient monitoring.(1) The executive director shall require the owner or operator to develop an ambient monitoring program, based on a site-specific assessment of the potential for waste and/or fluid movement from the well or injection zone and subsidence due to groundwater withdrawal or salt movement.(2) The executive director shall require subsidence and groundwater quality monitoring over the area of review, and any other type of ambient necessary to comply with §331.162 of this title (relating to Performance Standard).(3) Any monitor wells within the area of review selected for the observation of water quality, subsidence, formation pressure, or any other parameter, shall be monitored at an accuracy, frequency, and density sufficient to protect underground sources of drinking water, and fresh or surface water.(i) Hydrogeologic compatibility determination. The owner or operator shall submit information demonstrating to the satisfaction of the executive director that the waste stream and its anticipated reaction products will not alter the permeability, thickness, or other relevant characteristics of the salt cavern confining or salt cavern injection zones such that they would no longer meet the requirements specified in §331.121 of this title (relating to Class I Wells).(j) Other monitoring and testing. Any other monitoring and testing requirements, including determination of composition and volume of leachate, shall be specified as permit conditions.(k) Notification of scheduled logging and testing. The executive director or his designated representative shall have the opportunity to witness all logging and testing. The owner or operator shall submit a written schedule of such activities to the executive director at least seven days prior to conducting tests.</content><note type="source"><p>Source Note: The provisions of this §331.166 adopted to be effective June 22, 1992, 17 TexReg 4097; amended to be effective November 23, 2000, 25 TexReg 11433.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scJ/s331.167"><num value="331.167">§331.167</num><heading>Reporting Requirements</heading><content>(a) Pre-operation reports.(1) Well completion report. Within 90 days after the completion of the well, the permittee shall submit a Well Completion Report to the executive director addressing the considerations and standards in §331.45(2) of this title (relating to Executive Director Approval of Construction and Completion) and §331.163 of this title (relating to Well Construction Standards), and including a completed copy of the commission's Well Data Form, and a surveyor's plat showing the exact location and giving the latitude and longitude of the well. The report will also include a certification that a notation on the deed to the facility property or on some other instrument which is normally examined during title search has been made stating the surveyed location of the well, and the well permit number. The permittee shall integrate the data obtained into adjusted injection zone fluid transport calculations, and updated cross-sections of the injection zone, and shall include these items in the completion report.(2) Cavern completion report. Within 90 days after the completion of the cavern, the permittee shall submit a Cavern Completion Report to the executive director addressing the considerations and standards in §331.45(2) of this title and §331.164 of this title (relating to Cavern Construction Standards), and including a surveyor's plat showing the exact location and giving the latitude and longitude of the cavern. The report will also include a certification that a notation on the deed to the facility property or on some other instrument which is normally examined during title search has been made stating the surveyed location of the cavern, the well permit number, the depth of the cavern floor and ceiling, the cavern diameter, the dates of operation, and its permitted waste streams. The permittee shall integrate the data obtained into adjusted injection zone waste transport calculations, waste front calculations and updated cross-sections of the injection zone and include these items in the completion report.(3) Local authorities. The permittee shall provide written notice to the executive director in a manner specified by the executive director that a copy of the permit has been properly filed with the health and pollution control authorities of the county, city, and town where the well is located.(4) Start-up date and time. The permittee shall notify the executive director in writing of the anticipated well construction and cavern construction start-up dates. Compliance with all pre-operation terms of the permit must occur prior to beginning injection operations. The permittee shall notify the executive director at least 24 hours prior to beginning drilling and cavern construction operations.(5) Approval of construction and completion. Prior to beginning operations, the permittee shall obtain written approval from the executive director which states that the constructions and completions of the well and cavern are in compliance with the applicable provisions of the salt cavern solid waste disposal well permit. To obtain certification, the permittee shall submit to the executive director the following reports and certifications prepared and sealed by a professional engineer with current registration pursuant to the Texas Engineering Practice Act:(A) final construction, "as-built" plans and specifications, reservoir data, and an evaluation of the considerations set out in §331.45(2) of this title;(B) certification that the construction of the well, cavern, and associated facilities has been completed in accordance with the provisions of the disposal well permit and with the design and construction specifications of the permittee's application;(C) certification that actual data obtained on the confining and injection zones will not result in a need for a change in the operating parameters specified in the permit.(b) Operating reports.(1) Injection operation quarterly report. For noncommercial facilities only, within 20 days after the last day of the months of March, June, September, and December, the permittee shall submit to the executive director a quarterly report of injection operation on forms supplied by the executive director. These forms will comply with the reporting requirements of 40 Code of Federal Regulations §146.69(a). The executive director may require more frequent reporting.(2) Injection operation monthly report. For commercial facilities only the following shall apply.(A) The permittee shall submit to the commission within 10 days after the last day of each month a report describing chemical characteristics of new waste streams received for injection. The report shall be on forms provided by or acceptable to the commission.(B) The permittee shall submit within 30 days after the last day of each month a report to the commission including the following information for wastes received and injected during the month:(i) names and locations of the companies and plants generating the wastes;(ii) chemical and physical characteristics and volume of waste received from each company including pH;(iii) names of companies transporting the wastes; and(iv) a log of injection operations for each injection episode including, but not limited to, time of injection, injection rate, injection pressures, injection fluid volume, injection fluid pH, and injection fluid density.(C) The permittee shall submit to the commission within 20 days of the last day of each month a report of injection operations on forms provided by the commission. These forms will comply with the reporting requirements of 40 Code of Federal Regulations §146.69(a). The executive director may require more frequent reporting.(3) Injection zone annual report. For all facilities, the permittee shall submit annually with the December report of injection operation an updated graphic or other acceptable report and description of the effects of the well and cavern on the area of review, including a report on monitoring required by §331.166(h) of this title (relating to Monitoring and Testing Requirements). To the extent such information is reasonably available the report shall also include:(A) locations of newly constructed or newly discovered wells within the area of review if such wells were not included in the technical report accompanying the permit application or in later reports;(B) a tabulation of data as required by §331.121(a)(2)(B) of this title (relating to Class I Wells) for all such wells within 1/2 mile of the injection well and for all other wells within the area of review that penetrate the injection zone or confining zone; and(C) for noncommercial facilities only, a current injection fluid analysis.(4) Workover reports. Within 30 days after the completion of the workover, a report shall be filed with the executive director including the reason for well workover and the details of all work performed and interpretations of all logs and data collected.(5) Well mechanical integrity, cavern integrity, and other reports. The permittee shall submit within 30 days after test completion a report including both data and interpretation on the results of:(A) periodic tests of well and cavern integrity; and,(B) any other test of the injection well or cavern if required by the executive director.(6) Emergency report of leak or other failure. The permittee shall notify the underground injection control (UIC) staff of the Austin office and the local district office of the commission, within 24 hours of any significant change in monitoring parameters or of any other observations which could reasonably be attributed to a leak or other failure of the well equipment or cavern integrity.</content><note type="source"><p>Source Note: The provisions of this §331.167 adopted to be effective June 22, 1992, 17 TexReg 4097; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective November 23, 2000, 25 TexReg 11433.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scJ/s331.168"><num value="331.168">§331.168</num><heading>Additional Requirements and Conditions</heading><content>(a) A permit for a Class I salt cavern disposal well shall include expressly or by reference the following conditions.(1) A sign shall be posted at the well site which shall show the name of the company, company well number, commission permit number, the depth of the cavern floor and ceiling, and the cavern diameter. The sign and identification shall be in the English language, clearly legible, and shall be in numbers and letters at least one inch high.(2) An all-weather road shall be installed and maintained to allow access to the injection well and related facilities.(3) The wellhead and associated facilities shall be painted, if appropriate, and maintained in good working order without detectable leaks.(4) Secondary containment of the wellhead shall consist of a diked, impermeable pad or sump.(5) The commission may prescribe additional requirements for Class I salt cavern disposal wells in order to protect underground sources of drinking water, and fresh or surface water from pollution.(6) The obligation to implement the plugging and abandonment plan and the post-closure plan survives the termination of a permit or the cessation of injection activities. The requirement to maintain an approved plan is directly enforceable regardless of whether the requirement is a condition of the permit.(b) Pressure control equipment including blowout preventers or a wellhead with closeable valves shall be required to be installed and maintained in proper operating condition at all times at the casing head, extending from the time of advancing the surface casing hole after conductor casing is set, to the time of well closure, to safeguard against any pressure imbalance which might cause a backflow, blowout, or fracturing of the salt to occur.</content><note type="source"><p>Source Note: The provisions of this §331.168 adopted to be effective June 22, 1992, 17 TexReg 4097; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scJ/s331.169"><num value="331.169">§331.169</num><heading>Record-Keeping Requirements</heading><content>(a) The permittee shall keep complete and accurate records of, but not limited to:(1) All monitoring required by the permit, including:(A) continuous records of surface injection pressures;(B) continuous records of the pressures and volumes of the annulus between the tubing and long string;(C) continuous records of injection and production flow rates;(D) monthly total volume of injected and produced materials;(E) continuous records of cavern gases chemistry and pressures;(F) continuous records of cavern fill volume and chemistry; and(G) continuous records of cavern fluid volume;(2) All periodic well tests, including but not limited to:(A) analyses of injected and produced materials;(B) cavern integrity;(C) well mechanical integrity; and(D) casing inspection surveys;(3) all shut-in periods and times that emergency measures were used for handling injection fluid or waste;(4) any additional information on conditions that might reasonably affect the operation of the injection well.(b) All records shall be made available promptly on location for review upon request from a representative of the commission.(c) The permittee shall retain on location, for a period of three years following abandonment, records of all information resulting from any monitoring activities, including the chemical and physical characteristics of injected waste, or other records required by the permit. The executive director may require a permittee to submit copies of the records at any time prior to conclusion of the retention period.</content><note type="source"><p>Source Note: The provisions of this §331.169 adopted to be effective June 22, 1992, 17 TexReg 4097; amended to be effective November 23, 2000, 25 TexReg 11433.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scJ/s331.170"><num value="331.170">§331.170</num><heading>Cavern Closure</heading><content>(a) The owner or operator of a Class I salt cavern disposal well shall prepare, maintain, and comply with a plan for cavern closure that meets the minimum following requirements, and that is acceptable to the executive director.(1) The owner or operator shall submit the plan as a part of the permit application and, upon approval, or approval with modifications, by the executive director, such plan shall be a condition of any permit issued.(2) The owner or operator shall submit all proposed revisions to the plan and obtain any necessary permit amendments, as appropriate, over the life of the well and cavern.(3) The plan shall include, at a minimum, the following information:(A) upon cessation of waste disposal, and prior to cavern sealing, the operator shall:(i) monitor the cavern pressure and cavern fluid volume and fluid chemical composition, to provide information regarding the cavern's natural closure characteristics and any ensuant pressure buildup;(ii) provide predictions from data gathered in clause (i) of this subparagraph of cavern behavior after sealing is completed;(iii) demonstrate, to the executive director, utilizing actual pre-closure monitoring data, that the sealing of the cavern will not result in any pressure buildup within the cavern that could adversely affect the integrity of the cavern, well, or seal;(iv) fill all partially filled caverns with crushed salt or another approved suitable material which is compatible with the waste and the salt stock;(v) complete any monitoring of the cavern and its contents required by rule or permit;(vi) use redundant seals or plugs, comprised of different compositions and sealing properties, to provide for immediate as well as long-term salt cavern injection zone containment;(vii) obtain written authorization from the executive director for cavern sealing;(B) upon completion of cavern sealing, the owner or operator shall:(i) monitor the seal for leaks;(ii) demonstrate to the executive director that the seal is not leaking prior to requesting authorization for closing the wellbore;(iii) obtain written authorization from the executive director to begin well closure.(b) The well shall be closed in accordance with §331.46 of this title (relating to Closure Standards).</content><note type="source"><p>Source Note: The provisions of this §331.170 adopted to be effective June 22, 1992, 17 TexReg 4097; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scJ/s331.171"><num value="331.171">§331.171</num><heading>Post-Closure Care</heading><content>(a) The owner or operator of a Class I salt cavern disposal well shall prepare, maintain, and comply with a plan for post-closure care that meets the requirements of subsection (b) of this section, and that is acceptable to the executive director.(1) The owner or operator shall submit the plan as a part of the permit application and, upon approval by the executive director, such plan shall be a condition of any permit issued.(2) The owner or operator shall submit any proposed significant revision to the plan and obtain any necessary permit amendment, as appropriate over the life of the well, but no later than the date of the closure report required under §331.46 of this title (relating to Closure Standards).(3) The plan shall provide financial assurance as required in this chapter. The owner or operator shall demonstrate and maintain financial assurance in the amount of the post closure cost estimate to cover post closure in a manner that meets the requirements of this chapter and Chapter 37, Subchapter Q of this title (relating to Financial Assurance for Underground Injection Control Wells). The amount of the funds available shall be no less than the amount identified in paragraph (4)(F) of this subsection.(4) The plan shall include the following information:(A) the pressure in the injection zone before injection began;(B) the anticipated pressure in the injection zone at the time of closure;(C) the predicted time based on actual preclosure monitoring data until pressure in the injection interval reaches equilibrium with the surrounding salt stock;(D) predicted position of the waste front at closure (cavern sealing and well plugging);(E) the status of any corrective action required under §331.44 of this title (relating to Corrective Action Standards);(F) the estimated cost of proposed closure and post-closure care to be based on a reasonable worst case scenario.(5) At the request of the owner or operator, or on his own initiative, the executive director may modify the post-closure plan after submission of the closure report following the procedures in §331.46 of this title.(b) The owner or operator shall:(1) continue and complete any corrective action required under §331.44 of this title;(2) continue to conduct any groundwater monitoring and subsidence monitoring required under the permit until pressure in the injection interval reaches equilibrium with the salt stock. The executive director may extend the period of post-closure monitoring if he determines that the well or cavern may endanger an underground source of drinking water or freshwater aquifer;(3) submit a survey plat to the local zoning authority designated by the executive director. The plat shall indicate the location of the well relative to permanently surveyed benchmarks, the depth of the cavern ceiling and floor, and the maximum cavern radius. A copy of the plat shall be submitted to the underground injection control staff of the commission;(4) provide appropriate notification and information to such state and local authorities as have authority over drilling activities to enable such state and local authorities to impose appropriate conditions on subsequent drilling activities that may penetrate the well's confining or injection zone;(5) retain for a period of three years following well closure records reflecting the nature, composition, and volume of all injected materials. The executive director shall require the owner or operator to deliver the records to the executive director at the conclusion of the retention period, and all records shall thereafter be retained at a location designated by the executive director for that purpose.</content><note type="source"><p>Source Note: The provisions of this §331.171 adopted to be effective June 22, 1992, 17 TexReg 4097; amended to be effective January 2, 1995, 19 TexReg 10099; amended to be effective March 21, 2000, 25 TexReg 2385; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c331/scK"><num value="K">SUBCHAPTER K</num><heading>ADDITIONAL REQUIREMENTS FOR CLASS V INJECTION WELLS ASSOCIATED WITH AQUIFER STORAGE AND RECOVERY PROJECTS</heading><section identifier="/us/state/tx/tac/t30/p1/c331/scK/s331.181"><num value="331.181">§331.181</num><heading>Applicability</heading><content>In addition to the requirements of Subchapter H of this chapter (relating to Standards for Class V Wells), the requirements of this subchapter apply to all Class V aquifer storage and recovery injection wells.</content><note type="source"><p>Source Note: The provisions of this §331.181 adopted to be effective June 28, 1996, 21 TexReg 5443; amended to be effective May 19, 2016, 41 TexReg 3513.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scK/s331.182"><num value="331.182">§331.182</num><heading>Area of Review</heading><content>The area of review for an aquifer storage and recovery (ASR) project is the area determined by a radius of 1/2 mile from the proposed ASR injection well. For an ASR project that includes more than one proposed injection well, the area of review is the area determined by a radius of 1/2 mile from the centroid of the injection well field. If the extent of the underground stored water of the ASR project will exceed the area determined by the 1/2 mile radius as described in this section, the area of review is the area determined by the projected extent of the underground stored water as calculated by using site-specific hydrogeologic information. In the application for authorization, the applicant shall provide information on the activities within the area of review including the following factors and their adverse impacts, if any, on the injection operation:(1) location of all artificial penetrations that penetrate the interval to be used for aquifer storage and recovery, including but not limited to: water wells and abandoned water wells from commission well files or ground water district files; oil and gas wells and saltwater injection wells from the Railroad Commission of Texas files; and waste disposal wells/other injection wells from the commission disposal well files;(2) completion and construction information, where available, for identified artificial penetrations;(3) site specific, significant geologic features, such as faults and fractures; and(4) all information required for the consideration of an aquifer storage and recovery injection well under §331.186(a) of this title (relating to Additional Requirements).</content><note type="source"><p>Source Note: The provisions of this §331.182 adopted to be effective June 28, 1996, 21 TexReg 5443; amended to be effective January 10, 1997, 22 TexReg 58; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective May 19, 2016, 41 TexReg 3513.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scK/s331.183"><num value="331.183">§331.183</num><heading>Construction and Closure Standards</heading><content>All Class V aquifer storage and recovery (ASR) injection wells shall be designed, constructed, completed, and closed to prevent commingling, through the wellbore and casing, of injection waters with other fluids outside of the authorized injection zone; mixing through the wellbore and casing of fluids from aquifers of substantively different water quality; and infiltration through the wellbore and casing of water from the surface into ground water zones.(1) Plans and specifications. Except as specifically required in the terms of the Class V injection well authorization, the drilling and completion of a Class V ASR injection well shall be done in accordance with the requirements of §331.132 of this title (relating to Construction Standards) and the closure of a Class V ASR injection well shall be done in accordance with the requirements of §331.133 of this title (relating to Closure Standards for Injection Wells).(A) If the project operator proposes to change the injection interval to one not reviewed during the authorization process, the project operator shall notify the executive director immediately. The project operator may not inject into any unauthorized zone.(B) The executive director shall be notified immediately of any other changes, including but not limited to, changes in the completion of the well, changes in the setting of screens, and changes in the injection intervals within the authorized injection zone.(2) Construction materials. Casing materials for Class V ASR injection wells shall be constructed of materials resistant to corrosion.(3) Construction and workover supervision. All phases of any ASR injection well construction, workover or closure shall be supervised by qualified individuals who are knowledgeable and experienced in practical drilling engineering and who are familiar with the special conditions and requirements of injection well and water well construction.(4) An ASR production well, or an ASR injection well that is also serving as an ASR production well, and is providing water to a public water system must comply with the applicable requirements for groundwater sources in §290.41 of this title (relating to Water Sources).(5) All ASR injection wells and all ASR production wells associated with a single ASR project must be located:(A) within a continuous perimeter boundary of one parcel of land; or(B) within two or more adjacent parcels of land under the common ownership, lease, joint operating agreement, or contract.</content><note type="source"><p>Source Note: The provisions of this §331.183 adopted to be effective June 28, 1996, 21 TexReg 5443; amended to be effective November 23, 2000, 25 TexReg 11433; amended to be effective May 19, 2016, 41 TexReg 3513.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scK/s331.184"><num value="331.184">§331.184</num><heading>Operating Requirements</heading><content>(a) All Class V aquifer storage and recovery (ASR) injection wells shall be operated in such a manner that injection will not endanger drinking water sources. Underground injection endangers drinking water sources if such injection may result in the presence in underground water which supplies or can reasonably be expected to supply any public water system of any contaminant, and if the presence of such contaminant may result in such system's not complying with any national primary drinking water regulation or may otherwise adversely affect the health of persons.(b) Injection pressure at the wellhead shall not exceed a maximum which shall be calculated so as to assure the pressure in the injection zone does not cause movement of fluid out of the injection zone.(c) The owner or operator of an ASR injection well that has ceased operations for more than two years shall notify the executive director 30 days prior to resuming operation of the well.(d) The owner or operator shall maintain the mechanical integrity of all wells operated under this section.(e) The quality of the water injected at an ASR project must meet the requirements in §331.186(a)(1) of this title (relating to Additional Requirements). Water recovered from an ASR project that is provided to a public water system is subject to all applicable requirements, maximum contaminant levels, and treatment techniques under Chapter 290 of this title (relating to Public Drinking Water).(f) All ASR injection and ASR production wells must be installed with a flow meter for measuring the volume of water injected and the volume of the water recovered.(g) This subsection only applies to an ASR project that is located within the jurisdiction of a groundwater conservation district or other special-purpose district with the authority to regulate the withdrawal of groundwater.(1) An authorization or permit issued under this chapter may not authorize a volume of water to be recovered that exceeds the volume of water that is injected or the volume of injected water that the commission determines can be recovered, whichever is less; and(2) The requirements of Texas Water Code, Chapter 36, Subchapter N apply to the volume of water recovered from an ASR project that exceeds the volume of water the commission determines can be recovered, and otherwise as applicable.</content><note type="source"><p>Source Note: The provisions of this §331.184 adopted to be effective June 28, 1996, 21 TexReg 5443; amended to be effective May 19, 2016, 41 TexReg 3513.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scK/s331.185"><num value="331.185">§331.185</num><heading>Monitoring and Reporting Requirements</heading><content>(a) An aquifer storage and recovery (ASR) project operator shall monitor each ASR injection well and each ASR production well associated with an ASR project. Each calendar month the project operator shall provide the executive director either a written or electronic report of the following information for the previous month:(1) the volume of water injected for storage;(2) the volume of water recovered for beneficial use;(3) monthly average injection pressures; and(4) other information as determined by the executive director as necessary for the protection of underground sources of drinking water.(b) On an annual basis, an ASR project operator shall perform water quality testing on water to be injected at an ASR project and on water that is recovered from that project. The ASR project operator shall provide the executive director either a written or electronic report of the results of this testing. The report shall include the test results for all water quality parameters identified in the individual permit, general permit, or authorization by rule.</content><note type="source"><p>Source Note: The provisions of this §331.185 adopted to be effective June 28, 1996, 21 TexReg 5443; amended to be effective January 10, 1997, 22 TexReg 58; amended to be effective May 19, 2016, 41 TexReg 3513.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scK/s331.186"><num value="331.186">§331.186</num><heading>Additional Requirements</heading><content>(a) The executive director or commission shall consider the following before issuing an individual permit, a general permit, or an authorization by rule for an aquifer storage and recovery (ASR) injection well:(1) whether the injection of water will comply with the standards set forth under the federal Safe Drinking Water Act (42 United States Code, §§300f, et seq); (2) the extent to which the cumulative volume of water injected for storage in the receiving geologic formation can be successfully recovered from the geologic formation for beneficial use, taking into account that the injected water may be comingled to some degree with native groundwater;(3) the effect of the ASR project on existing water wells; and(4) whether the introduction of water into the receiving geologic formation will alter the physical, chemical, or biological quality of the native groundwater to a degree that would:(A) render the groundwater produced from the receiving formation harmful or detrimental to people, animals, vegetation, or property; or(B) require an unreasonably higher level of treatment of the groundwater produced from the receiving geologic formation than is necessary for the native groundwater in order to render the groundwater suitable for beneficial use.(b) Upon completion of an ASR injection well, the following information shall be submitted to the executive director within 30 days of receipt of the results of all analyses and test results:(1) as-built drilling and completion data on the well;(2) all logging and testing data on the well;(3) formation fluid analyses; (4) injection fluid analyses;(5) injectivity and pumping tests determining well capacity and reservoir characteristics;(6) hydrogeologic modeling, with supporting data, predicting mixing zone characteristics and injection fluid movement and quality; and(7) other information as determined by the executive director as necessary for the protection of underground sources of drinking water.</content><note type="source"><p>Source Note: The provisions of this §331.186 adopted to be effective June 28, 1996, 21 TexReg 5443; amended to be effective May 19, 2016, 41 TexReg 3513.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c331/scL"><num value="L">SUBCHAPTER L</num><heading>GENERAL PERMIT AUTHORIZING USE OF A CLASS I INJECTION WELL TO INJECT NONHAZARDOUS DESALINATION CONCENTRATE OR NONHAZARDOUS DRINKING WATER TREATMENT RESIDUALS</heading><section identifier="/us/state/tx/tac/t30/p1/c331/scL/s331.201"><num value="331.201">§331.201</num><heading>Purpose and Applicability</heading><content>(a) The commission may issue a permit to dispose of nonhazardous brine produced by a desalination operation or nonhazardous drinking water treatment residuals in a Class I injection well if the facility meets all the statutory and regulatory requirements for the issuance of a permit for a Class I injection well.(b) The commission may issue a general permit authorizing the use of a Class I injection well to inject nonhazardous brine from a desalination operation or to inject nonhazardous drinking water treatment residuals if the commission determines that the injection well and injection activities are more appropriately regulated under a general permit than under an individual permit based on findings that:(1) the general permit has been drafted to ensure that it can be readily enforced and that the commission can adequately monitor compliance with the terms of the general permit; and(2) the general permit will contain proper safeguards to protect ground and surface fresh water from pollution.(c) Authorization for the use of an injection well under a general permit does not confer a vested right.(d) The use or disposal of radioactive material under this subchapter is subject to the applicable requirements of Chapter 336 of this title (relating to Radioactive Substance Rules).</content><note type="source"><p>Source Note: The provisions of this §331.201 adopted to be effective July 10, 2008, 33 TexReg 5342.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scL/s331.202"><num value="331.202">§331.202</num><heading>Public Notice, Public Meetings, and Public Comment</heading><content>(a) Applicability. The requirements of subsections (b) - (e) of this section apply to processing a new general permit, an amendment, renewal, revocation, or cancellation of a general permit.(b) Notice of a draft general permit shall be published as follows:(1) Notice shall be published in the Texas Register and in at least one newspaper of statewide or regional circulation; and(2) The public notice shall be published not later than the 30th day before the commission considers the approval of a general permit.(c) The contents of a public notice of a draft general permit shall:(1) include the applicable information described in §39.411 of this title (relating to Text of Public Notice);(2) include an invitation for written comments by the public to the commission regarding the proposed draft general permit; and(3) specify a comment period of at least 30 days.(d) Requirements relating to public meetings are as follows:(1) The agency may hold a public meeting to provide an additional opportunity for public comment and shall hold such a public meeting when the executive director determines, on the basis of requests, that a significant degree of public interest in a draft general permit exists.(2) Notice of a public meeting shall be by publication in the Texas Register not later than the 30th day before the date of the meeting.(3) Notice of a public meeting shall be mailed to the following:(A) the county judge of the county or counties in which permittees under the general permit could be located;(B) persons who filed public comment or request for a public meeting on or before the deadline for filing public comment or request for a public meeting; and(C) any other person the executive director or chief clerk may elect to include.(4) The contents of a notice of a public meeting shall include the applicable information described in §39.411 of this title. Each notice must include an invitation for written or oral comments by the public regarding the draft general permit.(5) The public comment period shall automatically be extended to the close of any public meeting held by the agency on the proposed general permit.(e) If the agency receives public comment during the comment period relating to issuance of a general permit, the executive director shall respond in writing to these comments, and this response shall be made available to the public and filed with the chief clerk at least ten days before the commission considers the approval of the general permit. The response shall address all written comments received during the comment period and oral or written comments received during any public meeting held by the agency. The commission shall consider all public comment in making its decision and shall either adopt the executive director's response to public comment or prepare its own response.(1) The commission shall issue its written response to comments on the general permit at the same time the commission issues or denies the general permit.(2) A copy of any issued general permit and response to comments shall be made available to the public for inspection at the agency's Austin office and also in the appropriate regional offices.(3) A notice of the commission's action on the proposed general permit and a copy of its response to comments shall be mailed to each person who made a comment during the comment period.(4) A notice of the commission's action on the proposed general permit and the text of its response to comments shall be published in the Texas Register.</content><note type="source"><p>Source Note: The provisions of this §331.202 adopted to be effective July 10, 2008, 33 TexReg 5342; amended to be effective May 14, 2020, 45 TexReg 3123.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scL/s331.203"><num value="331.203">§331.203</num><heading>Authorizations and Notices of Intent</heading><content>(a) A person may obtain authorization to use a Class I injection well to inject nonhazardous brine from a desalination operation or to inject nonhazardous drinking water treatment residuals under a general permit by complying with the general permit's conditions. A person shall submit a Notice of Intent to the executive director in a form or format that is specified in the general permit or otherwise set out in commission rules.(b) The general permit shall describe the content of the Notice of Intent. A Notice of Intent shall be signed in accordance with §305.44 of this title (relating to Signatories to Applications).(c) The following requirements apply to denial of an authorization or notice of intent.(1) The executive director shall provide written notice to a facility if the executive director denies the facility's Notice of Intent or authorization to inject waste under a general permit, including, at a minimum, a brief statement of the basis for this decision.(2) The executive director shall deny authorization to inject waste under an existing general permit for the following reasons:(A) the quantity of waste to be injected, the type of waste, the type of operation, the injection well design, or the injection well construction does not comply with the general permit;(B) the person or facility:(i) has failed to pay any portion of a delinquent fee or charge assessed by the executive director;(ii) is not in compliance with all requirements, conditions, and time frames specified in an unexpired commission final enforcement order relating to the activity regulated by the general permit; or(iii) is subject to an unexpired enforcement order that requires the facility to comply with operating conditions different from or additional to the requirements of the general permit.(3) The executive director may deny authorization to inject or operate an injection well under an existing general permit for reasons including, but not limited to, the following:(A) the owner and/or the operator of the facility has not filed a Notice of Intent in accordance with §305.43 of this title (relating to Who Applies);(B) the facility has been determined by the executive director to have been out of compliance with any rule, order, or permit of the commission, including non-payment of fees assessed by the executive director; or(C) the facility is the subject of an unresolved agency enforcement action in which the executive director has issued a written notice of enforcement.(4) If authorization to inject waste is denied under this subsection, the executive director may require the person whose authorization is denied to apply for and obtain an individual permit. If the facility is seeking to replace its individual permit with general permit coverage, but the facility's general permit authorization is denied, the facility shall apply for renewal of the individual permit prior to the expiration date of its current individual permit to maintain authorization to inject waste, in accordance with §305.63 of this title (relating to Renewal).(d) The following requirements apply to suspensions of authorizations and Notices of Intent:(1) The general permit shall describe the procedures for suspension of authorization and Notices of Intent under a general permit. The general permit shall require the executive director to provide written notice to a permittee that the executive director intends to suspend the permittee's authority to inject waste under a general permit, including:(A) a brief statement of the basis for this decision under this subsection;(B) a statement of whether the permittee shall immediately cease injection of waste;(C) a statement setting the deadline for filing the application for an individual permit; and(D) a statement that the permittee's waste injection authorization under the general permit shall be suspended on the effective date of the commission's action on the individual permit application unless the commission expressly provides otherwise, or unless the executive director has required the permittee to immediately cease injection of waste.(2) If a permittee's authorization under a general permit is suspended, the permittee shall immediately cease waste injection.(3) The executive director may require the person whose authorization to inject or operate an injection well is suspended to apply for and obtain an individual permit.(4) After providing written notice to the permittee, the executive director shall suspend authorization to inject or operate an injection well under an existing general permit for the following reasons:(A) the quantity of waste, the type of waste, or the type of operation does not comply with the general permit;(B) the permittee or facility:(i) has failed to pay any portion of a delinquent fee or charge assessed by the executive director;(ii) is not in compliance with all requirements, conditions, and timeframes specified in an unexpired commission final enforcement order relating to the activity regulated by the general permit: or(iii) is subject to an unexpired enforcement order that requires the facility to comply with operating conditions different from or additional to the requirements of the general permit; and(C) an application is not received by the deadline specified by rule or in the general permit.(5) After providing written notice to the permittee, the executive director may suspend authorization to inject waste under an existing general permit for reasons including, but not limited to, the following:(A) a change has occurred in the availability of demonstrated technology or practices for the prevention, control, or abatement of pollutants applicable to the injection necessary to be implemented to meet applicable federal or state standards;(B) the owner and/or the operator of the facility has not filed a Notice of Intent in accordance with §305.43 of this title;(C) circumstances have changed since the time of the Notice of Intent so that injection of waste is no longer appropriately controlled to meet applicable standards under the general permit, or either a temporary or permanent cessation of the authorized waste injection is necessary;(D) the facility has been determined by the executive director to have been out of compliance with any rule, order, or permit of the commission, including non-payment of fees assessed by the executive director; and(E) the permittee or facility is the subject of an unresolved agency enforcement action in which the executive director has issued written notice that enforcement has been initiated.(e) The commission, after hearing, shall deny or suspend a permittee's authority to inject waste under a general permit if the commission determines that the permittee operates any facility for which the permittee's compliance history contains violations constituting a recurring pattern of egregious conduct that demonstrates a consistent disregard for the regulatory process, including a failure to make a timely and substantial attempt to correct the violations. A hearing under this subsection is not subject to Texas Government Code, Chapter 2001.</content><note type="source"><p>Source Note: The provisions of this §331.203 adopted to be effective July 10, 2008, 33 TexReg 5342.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scL/s331.204"><num value="331.204">§331.204</num><heading>Permit Duration, Amendment, and Renewal</heading><content>(a) A general permit may be issued for a term not to exceed ten years. After notice and comment as provided by §331.202 of this title (relating to Public Notice, Public Meetings, and Public Comment), a general permit may be amended, revoked, or canceled by the commission or renewed by the commission for an additional term or terms not to exceed ten years each.(b) A general permit remains in effect until the commission amends, revokes, cancels or renews the general permit, or until it expires, whichever comes first. If before its expiration, the commission proposes to renew a general permit, the general permit shall remain in effect after the expiration date for those existing permittees covered by the general permit until the date on which the commission takes final action on the proposed permit renewal. No new Notices of Intent will be accepted or new authorizations honored for authorization under the general permit after the expiration date.(c) Upon issuance of a renewed or amended general permit, all owners or operators, including those covered under the expired general permit, shall submit a Notice of Intent in accordance with the requirements of the new permit.(d) If the commission has not proposed to renew a general permit at least 90 days before its expiration date, permittees authorized under the general permit shall submit an application for an individual permit before the general permit's expiration. If an application for an individual permit is submitted before the general permit's expiration, authorization under the expired general permit remains in effect until the issuance or denial of an individual permit.(e) The commission may, through renewal or amendment of a general permit, add or delete requirements or limitations to the permit. The commission may provide in the general permit a reasonable time to allow existing permittees covered by the general permit to make the changes necessary to comply with any additional requirements deemed substantive by the commission.(f) Before issuing a general permit, the commission shall review the general permit for consistency with the Texas Coastal Management Plan (CMP). The commission must find that the general permit is consistent with the applicable CMP goals and policies and that it will not adversely affect any applicable coastal natural resource areas as identified in the CMP before the commission may issue the general permit.</content><note type="source"><p>Source Note: The provisions of this §331.204 adopted to be effective July 10, 2008, 33 TexReg 5342.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scL/s331.205"><num value="331.205">§331.205</num><heading>Fees for Notice of Intent and Notice of Change</heading><content>(a) A person shall include with the notice of intent requesting coverage under the terms of a general permit issued under this subchapter a fee of $100 for each disposal well.(b) A permittee authorized under a general permit issued under this subchapter shall include with each notice of change a fee of $100 for each disposal well.</content><note type="source"><p>Source Note: The provisions of this §331.205 adopted to be effective July 10, 2008, 33 TexReg 5342.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scL/s331.206"><num value="331.206">§331.206</num><heading>Annual Fee Assessments</heading><content>A person authorized by a general permit shall pay annual facility and waste management fees according to Chapter 335, Subchapter J of this title (relating to Hazardous Waste Generation, Facility and Disposal Fee System) unless specified in the general permit.</content><note type="source"><p>Source Note: The provisions of this §331.206 adopted to be effective July 10, 2008, 33 TexReg 5342; amended to be effective August 16, 2012, 37 TexReg 6078.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c331/scM"><num value="M">SUBCHAPTER M</num><heading>REQUIREMENTS FOR EXISTING WELLS USED FOR DEVELOPMENT OF CLASS III UIC WELL APPLICATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c331/scM/s331.220"><num value="331.220">§331.220</num><heading>Applicability</heading><content>The requirements of this subchapter apply to wells used to obtain information for the development of an application for a Class III injection well area permit for in situ mining of uranium.</content><note type="source"><p>Source Note: The provisions of this §331.220 adopted to be effective March 12, 2009, 34 TexReg 1638.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scM/s331.221"><num value="331.221">§331.221</num><heading>Registration of Wells</heading><content>(a) All wells described in §331.220 of this title (relating to Applicability) that are completed prior to submission of an application for a Class III injection well area permit must be registered with the Texas Commission on Environmental Quality within 30 days of completion of casing and development of the well and prior to submission of such an application. All wells described in §331.220 of this title that are completed after submission of such an application must be registered within 30 days of well completion.(b) Registration of wells described in §331.220 of this title shall be completed on forms provided by the executive director. The owner or operator of any well to be registered shall provide the following information for each well:(1) a unique, site-specific, designation for the well;(2) the location of the well on a map;(3) latitude and longitude of the well, with datum specified;(4) the depth of the well;(5) construction, completion and casing information on the well;(6) the identification of the operator of the well;(7) the identification of the landowner for the property on which the well is located;(8) water level data; and(9) identification of the groundwater conservation district in which the well is located, if applicable.(c) The owner or operator of a well registered under this subchapter must maintain mechanical integrity of the well. A well registered under this subchapter shall be cased and cemented so as to not cause or allow the movement of fluid that would result in the pollution of an underground source of drinking water or fresh water. No injection may be authorized into a well registered under this subchapter.(d) Any well, registered in accordance with the requirements of this subchapter, that is not subsequently authorized under a Class III injection well area permit in accordance with §331.222 of this title (relating to Conversion of Registered Wells to Class III Wells), shall be plugged and abandoned in a manner that prohibits the movement of fluids into underground sources of drinking water or fresh water. Within 30 days of permit issuance, the permittee shall submit a certification to the executive director that the well has been plugged and abandoned in accordance with the requirements of this subsection. A permitee may submit a request to the executive director for an extension of time for completion of plugging and abandonment required under this subsection. Any request for an extension under this subsection must provide reasonable justification for the extension.(e) The registration of a well under this subchapter is not subject to the commission permitting, public notice, and hearing requirements, until such time as it is converted to a Class III well in accordance with §331.222 of this title.</content><note type="source"><p>Source Note: The provisions of this §331.221 adopted to be effective March 12, 2009, 34 TexReg 1638.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scM/s331.222"><num value="331.222">§331.222</num><heading>Conversion of Registered Wells to Class III Wells</heading><content>If a well registered under this subchapter is authorized under a Class III injection well area permit, the registration status for the well ceases and the well is subject to all applicable commission rules, including those regarding permitting, public notice, and hearing requirements. At such time a registered well is authorized under a Class III injection well area permit, the permittee shall submit a request to the executive director that the well be removed from the list of registered wells.</content><note type="source"><p>Source Note: The provisions of this §331.222 adopted to be effective March 12, 2009, 34 TexReg 1638.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scM/s331.223"><num value="331.223">§331.223</num><heading>Sharing of Data</heading><content>(a) After a person developing an application for a Class III injection well area permit has identified a permit boundary, that person shall determine if the permit boundary is within the area of a groundwater conservation district. If the proposed permit boundary is within the area of a groundwater conservation district, either wholly or in part, the person shall provide to the district:(1) information regarding wells not recorded in the public record when such wells are encountered by that person during the development of the permit application. Information to be provided to the groundwater conservation district shall include the location and ownership of the well, and any other available information for the well, including but not limited to depth, completion method, completion interval, water quality information, and lift method;(2) a map with the locations of all wells that are recorded in the public record and that are inside the proposed permit area and within one-quarter mile of the proposed permit area;(3) pre-mining water quality information collected from wells registered in accordance with §331.221 of this title (relating to Registration of Wells);(4) the amount of water produced each month from each registered well; and(5) a record of strata as described in §331.224 of this title (relating to Record of Strata) for each registered well, except for information considered confidential in accordance with Natural Resource Code, §131.048.(b) After receipt of the final information described by subsection (a) of this section to perform standard quality and assurance procedures, the owner or operator of a registered well may not take more than 90 days to submit the information to the groundwater conservation district.</content><note type="source"><p>Source Note: The provisions of this §331.223 adopted to be effective March 12, 2009, 34 TexReg 1638.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scM/s331.224"><num value="331.224">§331.224</num><heading>Record of Strata</heading><content>The executive director may require a person receiving a Class III well permit or production area authorization to maintain and provide, upon request, complete and accurate records of the depth, thickness, and character of the strata penetrated in drilling an injection well, monitoring well, or production well.</content><note type="source"><p>Source Note: The provisions of this §331.224 adopted to be effective March 12, 2009, 34 TexReg 1638.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scM/s331.225"><num value="331.225">§331.225</num><heading>Geophysical or Drilling Log</heading><content>If an existing well is to be converted to an injection well, monitoring well, or production well, the commission may require the applicant to provide a geophysical log or a drilling log of the existing well.</content><note type="source"><p>Source Note: The provisions of this §331.225 adopted to be effective March 12, 2009, 34 TexReg 1638.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c331/scN"><num value="N">SUBCHAPTER N</num><heading>STANDARDS FOR CLASS I BEDDED SALT CAVERN DISPOSAL WELLS</heading><section identifier="/us/state/tx/tac/t30/p1/c331/scN/s331.241"><num value="331.241">§331.241</num><heading>Applicability</heading><content>(a) The sections of this subchapter apply to all Class I disposal wells located in horizontally bedded or non-domal salt and their associated salt caverns, and not to such facilities located in the salt stocks of salt domes.(b) The receipt, processing or disposal of radioactive material under this subchapter is subject to the applicable requirements of Chapter 336 of this title (relating to Radioactive Substance Rules).</content><note type="source"><p>Source Note: The provisions of this §331.241 adopted to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scN/s331.242"><num value="331.242">§331.242</num><heading>Bedded Salt Cavern Disposal Well Performance Standard and Siting Requirements</heading><content>(a) Performance standard. The operator and permittee shall assure for construction, operation, maintenance, monitoring, closure, and post-closure of a Class I disposal well located in horizontally bedded or non-domal salt and associated cavern, the continuous attainment of a performance standard to prevent the movement of fluids that would result in the pollution of an underground source of drinking water.(b) The provisions of this chapter, as well as any permit or order issued by the commission, shall be construed as minimum operating requirements. To qualify for a permit or to otherwise operate a Class I disposal well located in horizontally bedded or non-domal salt and associated cavern, permit applicants and facility operators must demonstrate that this performance standard will be satisfied even if it is necessary to go beyond the minimum operating requirements described in this chapter.(c) Siting. In addition to the minimum siting criteria for Class I disposal wells, each permit applicant for a Class I bedded salt cavern disposal well and associated cavern shall identify potential risks to the waste disposal operation within the area of review.</content><note type="source"><p>Source Note: The provisions of this §331.242 adopted to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scN/s331.243"><num value="331.243">§331.243</num><heading>Bedded Salt Cavern Disposal Well Construction Standards</heading><content>(a) Wells shall be sited in such a fashion that they inject into a formation which is beneath the lowermost formation containing, within one quarter mile of the well bore, an underground source of drinking water (USDW).(b) Plans and specifications. Except as specifically required in the terms of the disposal well permit, the drilling and completion of the well shall be done in accordance with all permit application plans and specifications.(c) Any proposed changes to the plans and specifications must be in accordance with §331.62(a)(3) of this title (relating to Construction Standards).(d) Casing and cementing.(1) Wells shall be cased and cemented to prevent the movement of fluids into or between USDW. The casing and cement used in the construction of each newly drilled well shall be designed for the life expectancy of the well. In determining and specifying casing and cementing requirements, the following factors shall be considered:(A) depth of lowermost USDW or freshwater aquifer;(B) depth to the injection zone;(C) injection pressure, external pressure, internal pressure, and axial loading;(D) hole size;(E) size and grade of all casing strings (wall thickness, diameter, nominal weight, length, joint specification, and construction material);(F) the maximum burst and collapse pressures, and tensile stresses which may be experienced at any point along the length of the casings at any time during the construction, operation, and closure of the well;(G) corrosive effects of injected materials, formation fluids, and temperatures;(H) lithology of injection and confining zones;(I) types and grades of cement;(J) quantity and chemical composition of the injected fluid; and(K) cement and cement additives which must, at a minimum, be of sufficient quality and quantity to maintain integrity over the design life of the well.(2) Surface casing shall be set to a minimum subsurface depth which extends into a confining bed below the lowest formation containing a USDW or freshwater aquifer.(3) A second or long string casing, using a sufficient number of centralizers, shall be set into the salt formation.(4) The cement for that part of the casing opposite a salt formation shall be prepared with salt-saturated cementing material.(e) Injection tubings. Except for circulation of drilling fluids during well construction, all injection activities for bedded salt cavern construction and waste disposal in a bedded salt cavern shall be performed using removable injection tubing(s) suspended from the wellhead.(1) All injection activities during bedded salt cavern construction shall be performed with the annulus between the tubing and long string casing filled with a noncorrosive fluid sufficient to protect the long string casing seat.(2) All injection of waste into a bedded salt cavern shall be performed through tubing with a packer to seal the annulus between the tubing and casing near the bottom of the casing, or tubing with an approved fluid seal as an alternative. The tubing, packer, and fluid seal shall be designed for the expected service.(f) Well annulus system factors for consideration. In determining and specifying requirements for a tubing and packer system or tubing with a fluid seal, the following factors shall be considered and addressed:(1) depth of setting;(2) characteristics of injection fluid and waste;(3) injection pressure;(4) annular pressure;(5) rate, temperature, and volume of injected waste;(6) size of casing; and(7) tensile, burst, and collapse strengths of the tubing.(g) Logs and tests.(1) Geophysical logging. Appropriate logs and other tests shall be conducted during the drilling and construction phases of the well including drilling into the salt. All logs and tests shall be interpreted by the service company which processed the logs or conducted the test, or by other qualified persons. At a minimum the following logs and tests shall be conducted:(A) deviation checks on all holes, conducted at sufficiently frequent intervals to assure that avenues for fluid migration in the form of diverging holes are not created during drilling;(B) a spontaneous potential and resistivity log;(C) from the ground surface or from the base of conductor casing to the total investigated depth including all core hole or pilot hole:(i) natural gamma ray log;(ii) compensated density and neutron porosity logs;(iii) acoustic or sonic log;(iv) inclination (directional) survey; and(v) caliper log (open hole);(D) from the ground surface or from the base of conductor casing to the lowermost casing seat:(i) cement bond with variable density log;(ii) temperature log (cased hole); and(iii) casing inspection log; and(E) fracture detector log from the base of the surface casing to the total investigated depth including all core hole or pilot hole.(2) Pressure tests.(A) After installation and cementing of casings, and before drilling out the cemented casing shoe, surface casing shall be pressure tested at mill test pressure or 80% of the calculated internal pressure at minimum yield strength, and the intermediate and long string casing shall be tested to 1,500 pounds per square inch (psi) for 30 minutes, unless otherwise specified by the executive director.(B) After drilling out the cemented long string casing shoe, and before drilling more than 100 feet of core hole or pilot hole below the long string casing shoe, the bond between the salt, cement, and casing shall be tested at a pressure of 0.8 psi per foot of depth.(C) The pilot hole and/or core hole shall be tested between the long string casing shoe and the total investigated depth, at a casing seat pressure of 0.8 psi per foot of depth.(3) Coring.(A) Core samples. Full-hole cores shall be taken from selected intervals of the injection zone and lowermost overlying confining zone; or, if full-hole coring is not feasible or adequate core recovery is not achieved, sidewall cores shall be taken at sufficient intervals to yield representative data for selected parts of the injection zone and lowermost overlying confining zone. Core analysis shall include a determination of permeability, porosity, and bulk density.(B) In situ permeability, lithostatic gradients, and fracture pressure gradients shall be determined in the core hole for the salt, within the cavern injection interval.(4) Before commencement of injection for cavern construction, any portion of the pilot hole or core hole that extends beyond the intended wall of the cavern shall be filled with salt-saturated cement from total investigated depth back to the designed cavern boundary.(5) Well integrity testing. The mechanical integrity of a well must be demonstrated before initiation of injection activities. A mechanical integrity test shall consist of:(A) a pressure test with liquid or gas;(B) a temperature, noise log, or oxygen activation log;(C) a casing inspection log, if required by the executive director; and(D) any other test required by the executive director.(h) Compatibility. All well materials must be compatible with formations and fluids with which the materials may be expected to come into contact. A well shall be deemed to have compatibility as long as the materials used in the construction of the well meet or exceed standards developed for such materials by the American Petroleum Institute, the American Society for Testing Materials, or comparable standards acceptable to the executive director.(i) Pre-injection units.(1) The injection pump system shall be designed to assure that the surface injection pressure limitations authorized by the well permit shall not be exceeded.(2) Instrumentation shall be installed to continuously monitor changes in annulus pressure and annulus fluid volume for the purpose of detecting well malfunctions.(3) Pre-injection units, while allowing for pressure release, shall be designed to prevent the release of unauthorized cavern contents to the atmosphere.(4) To protect the ground surface from spills and releases, the wellhead will have secondary containment in the form of a diked, impermeable pad or sump.(j) Construction supervision. All phases of well construction and all phases of any well workover shall be supervised by a licensed professional engineer or licensed professional geoscientist, as appropriate, with current registration under the Texas Engineering Practice Act or Texas Geoscience Practice Act, who is knowledgeable and experienced in practical drilling engineering and who is familiar with the special conditions and requirements of waste disposal well construction.(k) Approval of completion of the well construction stage. Before beginning cavern construction and operation, the permittee shall obtain written approval from the executive director which states that the well construction is in compliance with the applicable provisions of the permit. To obtain approval, the permittee shall submit to the executive director within 90 days of completion of well construction, including all logging, coring, and testing of the pilot hole, the following reports and certifications prepared and sealed by a licensed professional engineer or licensed professional geoscientist with current registration under the Texas Engineering Practice Act or Texas Geoscience Practice Act:(1) final construction, "as-built" plans and specifications, reservoir data, and an evaluation of the considerations set out in §331.45(3) of this title (relating to Executive Director Approval of Construction and Completion);(2) certification that construction of the well has been completed in accordance with the provisions of the disposal well permit and with the design and construction specifications of the permittee's application; and(3) certification that actual reservoir data obtained will not result in the need for a change in the operating parameters specified in the permit.</content><note type="source"><p>Source Note: The provisions of this §331.243 adopted to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scN/s331.244"><num value="331.244">§331.244</num><heading>Bedded Salt Cavern Construction Standards</heading><content>(a) Plans and specifications. Except as specifically required in the terms of the disposal well permit, construction of the cavern shall be done in accordance with all permit application plans and specifications. Any proposed changes to the plans and specifications must be certified in writing by the executive director that said changes provide protection standards equivalent to or greater than the original design criteria.(b) Standards for bedded salt cavern construction.(1) The creation of waste disposal caverns within bedded salt shall be accomplished by the controlled dissolution of the sidewalls of the well bore to a specified maximum diameter, between selected elevations specified in the permit as the top and bottom of the injection interval.(2) The enlargement of a portion of the original well bore to serve as the cavern shall be done according to the cavern construction plans which shall be submitted as a part of the permit application. The cavern construction plans shall demonstrate at a minimum, the following:(A) adjacent caverns shall be separated by a minimum pillar to cavern diameter ratio of 2.0 to ensure a sufficient amount of separation for cavern safety and stability;(B) that cavern dimensions have been designed by a qualified professional engineer and geologist, to ensure the structural integrity of the cavern;(C) if an applicant proposes to conduct solution-mining activities concurrent with waste disposal, a plan for the controlled expansion of the cavern;(D) plans for continual monitoring of the volumes of materials injected and produced during cavern development and waste injection;(E) plans for cavern pressure tests and sonar surveys to determine the cavern dimensions, volume, geometric shape, and characterization of anomalies;(F) the cavern construction process shall be conducted under the supervision of a qualified professional engineer, with current registration under the Texas Engineering Practice Act, in accordance with accepted practices in the cavern construction industry; and(G) all brines displaced from the cavern shall be managed and/or disposed of in facilities authorized for such purpose.(c) Injection tubing. Except for circulation of drilling fluids during well construction, all injection activities for bedded salt cavern construction and waste disposal in a bedded salt cavern shall be performed through removable injection tubing(s) installed inside the cemented long string casing and extending from the wellhead at ground surface to the bedded salt cavern below the long string casing seat.(d) Logs and Tests.(1) The permit applicant shall submit, as part of its construction plan, information identifying the tests which it will use to verify cavern dimensions. This information shall include at a minimum, the following:(A) a description of surveys, logs, and tests to be run and analyzed, including any quantitative performance standards appropriate for any such procedure; and(B) the frequency of such surveys or logs.(2) Before waste disposal, the integrity of the cavern shall be tested in accordance with §331.43(b) of this title (relating to Mechanical Integrity Standards).(e) Workovers.(1) The permittee shall notify the executive director before commencing any workover operation or corrective maintenance which involves taking the disposal well out of service. The notification shall be in writing and shall include plans for the proposed work. The executive director may grant an exception of the prior written notification when immediate action is required. Approval by the executive director shall be obtained before the permittee may begin any workover operation or corrective maintenance that involves taking the well out of service. Pressure control equipment shall be installed and maintained during workovers which involve the removal of tubing.(2) Well mechanical integrity shall be demonstrated following any major operations which involve removal of the injection tubing, recompletions, or unseating of the packer. Cavern integrity demonstration may be required by the executive director in instances where the integrity of the casing seat or cavern may be compromised.(f) Reports and approval.(1) Initial cavern integrity report. The operator shall submit a report with the results of all tests regarding cavern integrity, within 30 days of completion of the bedded salt cavern construction stage.(2) Notification of completion of the cavern construction stage. Within 90 days of completion of cavern construction, the permittee shall provide notification to the executive director which states that the cavern construction is in compliance with the applicable provisions of the permit. The permittee shall submit to the executive director the following reports and certifications prepared and sealed by a professional engineer with current registration under the Texas Engineering Practice Act:(A) final construction, "as-built" plans and specifications, injection and confining zone data, and an evaluation of the considerations under §331.45(3) of this title (relating to Executive Director Approval of Construction and Completion);(B) certification that the construction of the cavern has been completed in accordance with the provisions of the disposal well permit and with the design and construction specifications of the permittee's application;(C) certification that actual confining and injection zone data obtained will not result in need for a change in the operating parameters specified in the permit; and(D) certification that the bedded salt cavern injection zone will not be in or above a formation which within 1/4 mile of the bedded salt cavern injection zone contains an underground source of drinking water.</content><note type="source"><p>Source Note: The provisions of this §331.244 adopted to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scN/s331.245"><num value="331.245">§331.245</num><heading>Bedded Salt Cavern Disposal Well Operating Requirements</heading><content>(a) General operating requirements.(1) A maximum allowable operating pressure and test pressure shall not exceed 0.8 pounds per square inch per foot of depth measured at the higher elevation of either the long string casing seat or the highest interior elevation of the cavern roof, but in no case shall it disrupt the bond between the salt, cement, and the casing seat, initiate new fractures or propagate existing fractures in the cavern or the confining zone, or cause movement of fluid or waste out of the injection zone.(2) A minimum operating pressure that is protective of bedded salt cavern integrity shall be maintained.(3) Injection between the outermost casing protecting underground sources of drinking water (USDWs), and fresh or surface water and the wellbore is prohibited.(4) Unless an alternative to a packer has been approved under §331.243(e) of this title (relating to Bedded Salt Cavern Disposal Well Construction Standards), the annulus between the tubing and long string casing shall be filled with a noncorrosive fluid approved by the commission. The annulus pressure, at all times that the well is in service, shall be at least 100 pounds per square inch greater than the injection tubing pressure, to detect well malfunctions, unless the executive director determines that such a requirement might harm the integrity of the well.(5) Chemical and physical characteristics of all injected materials and cavern contents shall protect and be compatible with the disposal well, associated facilities, and injection zone, and shall ensure proper operation of the facility to meet the performance standard of §331.242 of this title (relating to Bedded Salt Cavern Disposal Well Performance Standard and Siting Requirements).(6) All injection of waste into a bedded salt cavern shall be performed through removable tubing(s) with a packer or fluid seal to seal the annulus between the outer tubing and long string casing, near the bottom of the long string casing.(7) Unauthorized releases of cavern contents to the atmosphere are prohibited.(8) Before beginning waste disposal operations, a blanket material shall:(A) be placed into the salt cavern to prevent unwanted leaching of the cavern roof;(B) consist of crude oil, mineral oil, or other fluid possessing similar noncorrosive, nonsoluble, low-density properties;(C) be sufficient to protect the integrity of the cement and formation bond at the long string casing seat; and(D) be of sufficient volume to contact the entire cavern roof.(9) The cavern roof and level of the blanket material shall be monitored at least once every five years by running a density interface survey or using an alternative method.(10) If an automatic alarm or shutdown is triggered, the owner or operator shall immediately investigate and identify as expeditiously as possible the cause of the alarm or shutoff. If, upon such investigation, the well or cavern appears to be lacking integrity, or if monitoring required under §331.246(c) of this title (relating to Bedded Salt Cavern and Well Monitoring and Testing Requirements) otherwise indicates that the well or cavern lacks integrity, the owner or operator shall:(A) immediately cease injection of waste unless authorized by the executive director to continue or resume injection;(B) take all necessary steps to determine the presence or absence of a leak; and(C) notify the executive director within 24 hours after the alarm or shutdown.(11) If the loss of integrity is discovered under paragraph (4) of this subsection or during periodic integrity testing, or if unauthorized communication is established between bedded salt caverns, the owner or operator shall:(A) immediately cease injection of waste;(B) take all steps required to determine whether there may have been a release of wastes into any unauthorized zone;(C) notify the executive director within 24 hours after loss of mechanical integrity is discovered;(D) notify the executive director when injection can be expected to resume; and(E) restore and demonstrate well mechanical integrity and/or cavern integrity before resuming injection of waste.(12) Whenever the owner or operator obtains evidence that there may have been a release of injected wastes or brine into an unauthorized zone:(A) the owner or operator shall immediately cease injection of waste, and:(i) notify the executive director within 24 hours of obtaining such evidence;(ii) take all necessary steps to identify and characterize the extent of any release;(iii) propose a remediation plan for executive director review and approval;(iv) comply with any remediation plan specified by the executive director;(v) implement any remediation plan approved by the executive director; and(vi) where such release is into a USDW or freshwater aquifer currently serving as a water supply, within 24 hours notify the local health department, place a notice in a newspaper of general circulation and notify by mail the adjacent landowners.(B) The executive director may allow the operator to resume injection before completing cleanup action if the owner or operator demonstrates that the injection operation will not endanger USDWs or freshwater aquifers.(13) All fluids displaced from the cavern after injection of any waste shall be managed under applicable state and federal regulations.(b) Workovers.(1) The permittee shall notify the executive director before commencing any workover operation or corrective maintenance which involves taking the disposal well out of service. The notification shall be in writing and shall include plans for the proposed work. The executive director may grant an exception of the prior written notification when immediate action is required. Approval by the executive director shall be obtained before the permittee may begin any workover operation or corrective maintenance that involves taking the well out of service. Pressure control equipment shall be installed and maintained during workovers which involve the removal of tubing.(2) Mechanical integrity of the well shall be demonstrated following any major operations which involve removal of the injection tubing, recompletions, or unseating of the packer.</content><note type="source"><p>Source Note: The provisions of this §331.245 adopted to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scN/s331.246"><num value="331.246">§331.246</num><heading>Bedded Salt Cavern and Well Monitoring and Testing Requirements</heading><content>(a) Waste analysis plan. All material injected into or produced from the cavern shall be sampled and analyzed in accordance with the approved written waste analysis plan as specified by 40 Code of Federal Regulations §146.68(a).(b) Pressure gauges. Pressure gauges shall be installed and maintained in proper operating conditions at all times on the tubing string(s) and on any annulus extending to the wellhead.(c) Continuous recording devices. Continuous recording devices and instruments shall be installed in weatherproof enclosures, used, and maintained in proper operating condition at all times to record:(1) tubing string pressures;(2) the pressure and volume of any annular space that extends to the wellhead;(3) injection and production fluid flow rates, volume, and density;(4) the volume and composition of displaced gases; and(5) any other data specified by the permit.(d) Automatic Alarms. The owner or operator shall also install and use:(1) automatic alarm and automatic shutoff systems, designed to sound and shut-in the well when pressures and flow rates or other parameters approved by the executive director exceed a range and/or gradient specified in the permit; or(2) automatic alarms designed to sound when the pressures, flow rates, or other parameters approved by the executive director exceed a rate and/or gradient specified in the permit, in cases where the owner or operator certifies that a trained operator will be on location and able to immediately respond to alarms at all times when the well is operating.(e) Testing and calibration of monitoring instruments. All gauges, and pressure sensing and recording devices shall be tested and calibrated semi-annually.(f) Mechanical integrity. The owner or operator shall maintain mechanical integrity of the disposal well and bedded salt cavern at all times that the well and cavern are in service.(1) Mechanical integrity of the well must be demonstrated:(A) before the well is initially placed in service;(B) within five-year intervals during the operating life of the well to test for fluid movement along the borehole;(C) after each workover which involves removal of the injection tubing, recompletions, or unseating of the packer; and(D) before the well is plugged, unless the mechanical integrity test has been performed in the last five years.(2) Mechanical integrity of the cavern must be demonstrated:(A) before the cavern is initially placed in service;(B) within five-year intervals during the operating life of the cavern; and(C) in instances where the integrity of the casing seat or cavern may be compromised.(3) Mechanical integrity test methods.(A) Each bedded salt cavern disposal well shall be tested for mechanical integrity using a nitrogen-brine interface method.(B) Each bedded salt cavern shall be tested for mechanical integrity using a hydrostatic brine test.(C) A sonar survey, or other test approved by the executive director, shall be conducted for each bedded salt cavern.(D) A pressure test shall be performed on each bedded salt cavern disposal well and cavern.(4) The owner or operator may use an alternative cavern integrity test if the alternative integrity test is substantially equivalent to the integrity tests specified in paragraph (3) of this subsection. The owner or operator shall submit the following information for the executive director's consideration:(A) A description of the test method and the theory of operation, including the test sensitivities, a justification for the test parameters, and the pass and fail criteria for the test;(B) a description of the well and cavern conditions under which the test can be conducted;(C) the procedure for interpreting the test results; and(D) an interpretation of the test upon completion of the test.(5) The well and cavern integrity testing shall be conducted at the maximum allowable operating pressure.(g) Corrosion monitoring.(1) Corrosion monitoring of well materials shall be conducted quarterly. Test materials shall be the same as those used in the injection tubing, packer, and long string casing, and will be continuously exposed to the waste with the exception of when the well is taken out of service.(2) Corrosion monitoring may be waived if the disposal well owner or operator demonstrates that the waste will not be corrosive to the well materials with which the waste is expected to come into contact throughout the life of the well. The demonstration shall include a description of the methodology used to make that determination.(h) Ambient monitoring.(1) The owner or operator shall comply with ambient monitoring requirements in accordance with §331.64(h) of this title (relating to Monitoring and Testing Requirements).(2) The owner or operator shall conduct subsidence monitoring (elevation surveys) over the area of review and any other type of ambient monitoring necessary to comply with §331.242 of this title (relating to Bedded Salt Cavern Disposal Well Performance Standard and Siting Requirements). Elevation surveys shall be conducted by a licensed professional land surveyor.(i) Hydrogeologic compatibility determination. The owner or operator shall submit information demonstrating that the waste stream and its anticipated reaction products will not alter the permeability, thickness, or other relevant characteristics of the bedded salt cavern confining zone or bedded salt cavern injection zone such that they would no longer meet the requirements specified in §331.121 of this title (relating to Class I Wells).(j) Other monitoring and testing. The owner or operator shall conduct any other monitoring and testing requirements, including determination of composition and volume of leachate.(k) All testing and monitoring of the bedded salt disposal cavern and well shall be planned and supervised, and test results shall be reviewed by qualified individuals acting under the responsible charge of a licensed professional engineer or licensed professional geoscientist, as appropriate, with current registration under the Texas Engineering Practice Act or Texas Geoscience Practice Act.(l) Notification of scheduled logging and testing. The executive director or his designated representative shall have the opportunity to witness all logging and testing. The owner or operator shall submit a written schedule of such activities to the executive director at least seven days before conducting tests.</content><note type="source"><p>Source Note: The provisions of this §331.246 adopted to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scN/s331.247"><num value="331.247">§331.247</num><heading>Bedded Salt Cavern Disposal Well Reporting Requirements</heading><content>(a) Pre-operation reports.(1) Start-up date and time. At least 24 hours before beginning drilling and cavern construction operations, the permittee shall notify the executive director in writing of the anticipated well construction and cavern construction start-up dates. Compliance with all pre-operation terms of the permit must occur before beginning injection operations.(2) Notice of Completion. The permittee shall submit notice of completion of construction to the executive director as specified in §331.65(e)(1) of this title (relating to Reporting Requirements).(3) Well completion report. Within 90 days after the completion of the well, the permittee shall submit a Well Completion Report to the executive director addressing the considerations and standards in §331.45(3) of this title (relating to Executive Director Approval of Construction and Completion) and §331.243 of this title (relating to Bedded Salt Cavern Disposal Well Construction Standards), and including a completed copy of the commission's Well Data Form, and a surveyor's plat showing the exact location and giving the latitude and longitude of the well. The report will also include a certification that a notation on the deed to the facility property or on some other instrument which is normally examined during title search has been made stating the surveyed location of the well, and the well permit number.(4) Cavern completion report. Within 90 days after the completion of the cavern, the permittee shall submit a Cavern Completion Report to the executive director addressing the considerations and standards in §331.45(3) of this title and §331.244 of this title (relating to Bedded Salt Cavern Construction Standards), and including a surveyor's plat showing the exact location and giving the latitude and longitude of the cavern. The report will also include a certification that a notation on the deed to the facility property or on some other instrument which is normally examined during title search has been made stating the surveyed location of the cavern, the well permit number, the depth of the cavern floor and ceiling, the cavern diameter, the dates of operation, and its permitted waste streams.(5) Local authorities. The permittee shall provide written notice to the executive director in a manner specified by the executive director that a copy of the permit has been properly filed with the health and pollution control authorities of the county, city, and town where the well is located.(b) Operating reports.(1) Injection operation quarterly report.(A) For noncommercial facilities only, within 20 days after the last day of the months of March, June, September, and December, the permittee shall submit to the executive director a quarterly report of injection operation on forms supplied by the executive director. These forms will comply with the reporting requirements of 40 Code of Federal Regulations §146.69(a).(B) The owner or operator shall submit inventory balance data measuring the volume of waste and brine injected into or withdrawn from each bedded salt cavern well, including methods for measuring and verifying volume.(C) The executive director may require more frequent reporting.(2) Injection zone annual report. For all facilities, the permittee shall submit annually with the December report of injection operation an updated graphic or other acceptable report and description of the effects of the well and cavern on the area of review, including a report on monitoring required by §331.246(j) of this title (relating to Bedded Salt Cavern and Well Monitoring and Testing Requirements). To the extent such information is reasonably available the report shall also include:(A) locations of newly constructed or newly discovered wells within the area of review if such wells were not included in the technical report accompanying the permit application or in later reports;(B) a tabulation of data as required by §331.121(a)(2)(B) of this title (relating to Class I Wells) for all such wells within the area of review that penetrate the injection zone or confining zone; and(C) for noncommercial facilities only, a current injection fluid analysis.(3) Workover reports. Within 30 days after the completion of the workover, a report shall be filed with the executive director including the reason for well workover and the details of all work performed.(4) Well mechanical integrity, cavern integrity, and other reports. The permittee shall submit within 30 days after test completion a report including both data and interpretation on the results of:(A) periodic tests of well and cavern integrity; and(B) any other test of the injection well or cavern if required by the executive director.(5) Emergency report of leak or other failure. The permittee shall notify the underground injection control staff of the Austin office and the local district office of the commission, within 24 hours of any significant change in monitoring parameters or of any other observations which could reasonably be attributed to a leak or other failure of the well equipment or cavern integrity.</content><note type="source"><p>Source Note: The provisions of this §331.247 adopted to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scN/s331.248"><num value="331.248">§331.248</num><heading>Additional Requirements and Conditions for Bedded Salt Cavern Disposal Wells</heading><content>(a) A permit for a Class I bedded salt cavern disposal well shall include expressly or by reference the following conditions.(1) A sign shall be posted at the well site which shall show the name of the company, company well number, and commission permit number. The sign and identification shall be in the English language, clearly legible, and shall be in numbers and letters at least one inch high.(2) An all-weather road shall be installed and maintained to allow access to the disposal well and related facilities.(3) The wellhead and associated facilities shall be painted, if appropriate, and maintained in good working order without detectable leaks.(4) Secondary containment of the wellhead shall consist of a diked, impermeable pad or sump.(5) The executive director may prescribe additional requirements for Class I bedded salt cavern disposal wells in order to protect underground sources of drinking water, and fresh or surface water from pollution.(6) The obligation to implement the plugging and abandonment plan and the post-closure plan survives the termination of a permit or the cessation of injection activities. The requirement to maintain an approved plan is directly enforceable regardless of whether the requirement is a condition of the permit.(b) Pressure control equipment including blowout preventers or a wellhead with closeable valves shall be required to be installed and maintained in proper operating condition at all times at the casing head, extending from the time of advancing the surface casing hole after conductor casing is set, to the time of well closure, to safeguard against any pressure imbalance which might cause a backflow, blowout, or fracturing of the salt to occur.</content><note type="source"><p>Source Note: The provisions of this §331.248 adopted to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scN/s331.249"><num value="331.249">§331.249</num><heading>Record-Keeping Requirements for Bedded Salt Cavern Disposal Wells</heading><content>(a) The permittee shall keep complete and accurate records of, but not limited to:(1) all required monitoring, including continuous records of:(A) tubing string pressures;(B) the pressure and volume of any annular space that extends to the wellhead;(C) injection and production fluid flow rates, volume and density;(D) the volume and composition of displaced gases; and(E) any other data specified by the permit.(2) all periodic well tests, including but not limited to:(A) analyses of injected and produced materials;(B) cavern integrity;(C) well mechanical integrity; and(D) casing inspection surveys;(3) all shut-in periods and times that emergency measures were used for handling injection fluid or waste; and(4) any additional information on conditions that might reasonably affect the operation of the disposal well.(b) All records shall be made available promptly on location for review upon request from a representative of the commission.(c) The permittee shall retain on location, for a period of three years following abandonment, records of all information resulting from any monitoring activities, including the chemical and physical characteristics of injected waste, or other records required by the permit. The executive director may require a permittee to submit copies of the records at any time before conclusion of the retention period.</content><note type="source"><p>Source Note: The provisions of this §331.249 adopted to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scN/s331.250"><num value="331.250">§331.250</num><heading>Bedded Salt Cavern Closure</heading><content>(a) The owner or operator of a Class I bedded salt cavern disposal well shall prepare, maintain, and comply with a plan for cavern closure that meets the following minimum requirements:(1) The owner or operator shall submit the plan as a part of the permit application and, upon approval, or approval with modifications by the executive director, such plan shall be a condition of any permit issued.(2) The owner or operator shall submit all proposed revisions to the plan and obtain any necessary permit amendments, as appropriate, over the life of the well and cavern.(3) The plan shall include, at a minimum, the following information:(A) Upon cessation of waste disposal, and before cavern sealing, the operator shall:(i) Conduct a gamma-density log to determine the cavern top, salt top and to check for fluid behind the casing.(ii) Conduct a sonar caliper survey on the storage cavern if no sonar has been run within the past five years. The owner or operator may use another similar proven technology designed to determine cavern configuration and measure cavern capacity as a substitute for a sonar survey.(B) All brine displaced from the well or flushed from waste lines during the plugging operation shall be managed and disposed of under applicable state and federal regulations.(b) The well shall be closed in accordance with §331.46 of this title (relating to Closure Standards).</content><note type="source"><p>Source Note: The provisions of this §331.250 adopted to be effective August 16, 2012, 37 TexReg 6078.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scN/s331.251"><num value="331.251">§331.251</num><heading>Post-Closure Care for Bedded Salt Cavern Disposal Wells</heading><content>The owner or operator of a Class I bedded salt cavern disposal well shall prepare, maintain, and comply with a plan for post-closure care that meets the requirements of §331.68(b) of this title (relating to Post-Closure Care).</content><note type="source"><p>Source Note: The provisions of this §331.251 adopted to be effective August 16, 2012, 37 TexReg 6078.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c331/scO"><num value="O">SUBCHAPTER O</num><heading>ADDITIONAL REQUIREMENTS FOR CLASS V INJECTION WELLS ASSOCIATED WITH AQUIFER RECHARGE PROJECTS</heading><section identifier="/us/state/tx/tac/t30/p1/c331/scO/s331.262"><num value="331.262">§331.262</num><heading>Applicability</heading><content>In addition to the requirements of Subchapter H of this chapter (relating to Standards for Class V Wells), the requirements of this subchapter apply to all aquifer recharge projects that use a recharge injection well. The requirements of this subchapter do not apply to aquifer storage and recovery projects.</content><note type="source"><p>Source Note: The provisions of this §331.262 adopted to be effective May 28, 2020, 45 TexReg 3458.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scO/s331.263"><num value="331.263">§331.263</num><heading>Area of Review</heading><content>The area of review for an aquifer recharge (AR) project is the area determined by a radius of at least 1/2 mile from each proposed AR injection well. In the application for authorization, the applicant shall provide information on the activities within the area of review, including the following factors and any adverse interactions between the factors and the AR project:(1) locations of:(A) all artificial penetrations that penetrate the injection interval, including but not limited to: water wells and abandoned water wells from commission well files or groundwater district files; oil and gas wells and saltwater injection wells from the Railroad Commission of Texas files; and waste disposal wells/other injection wells from the commission disposal well files; and(B) springs, quarries, and any other bodies of water, surface or subsurface features that connect to the injection interval;(2) completion and construction information, where available, for identified artificial penetrations;(3) site-specific, significant geologic features, such as faults and fractures;(4) land surface elevations for projects used to mitigate subsidence;(5) land use in the drainage basin and geographic extent of the drainage basin for projects using improved sinkholes and caves; and(6) all information required for the consideration of an AR injection well under §331.267(a) of this title (relating to Additional Requirements).</content><note type="source"><p>Source Note: The provisions of this §331.263 adopted to be effective May 28, 2020, 45 TexReg 3458.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scO/s331.264"><num value="331.264">§331.264</num><heading>Construction and Closure Standards</heading><content>All Class V aquifer recharge (AR) injection wells shall be designed, constructed, completed, and closed to prevent commingling, through the wellbore and casing, of injection waters with other fluids outside of the authorized injection zone; mixing through the wellbore and casing of fluids from aquifers of substantively different water quality; and infiltration through the wellbore and casing of water from the surface into groundwater zones.(1) Plans and specifications. Except as specifically required in the terms of the Class V AR injection well authorization, the drilling and completion of a Class V AR injection well shall be done in accordance with the requirements of §331.132 of this title (relating to Construction Standards) and the closure of a Class V AR injection well shall be done in accordance with the requirements of §331.133 of this title (relating to Closure Standards for Injection Wells).(A) If the project operator proposes to change the injection interval to one not reviewed and approved during the authorization process, the project operator shall notify the executive director immediately. The project operator may not inject into any unauthorized zone without prior written approval from the executive director.(B) The executive director shall be notified immediately of any other changes, including but not limited to, changes in the completion of the AR injection well, changes in the setting of screens, and changes in the injection intervals within the authorized injection zone.(2) Construction materials. Casing materials for Class V AR injection wells shall be constructed of materials resistant to corrosion.(3) Construction and workover supervision. All phases of any AR injection well construction, workover or closure shall be supervised by qualified individuals who are knowledgeable and experienced in practical drilling engineering, as applicable, and who are familiar with the special conditions and requirements of injection well and water well construction.</content><note type="source"><p>Source Note: The provisions of this §331.264 adopted to be effective May 28, 2020, 45 TexReg 3458.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scO/s331.265"><num value="331.265">§331.265</num><heading>Operating Requirements</heading><content>(a) All Class V aquifer recharge (AR) injection wells shall be operated in such a manner that injection will not endanger drinking water sources. Underground injection endangers drinking water sources if such injection may result in the presence of any contaminant in underground water which supplies or can reasonably be expected to supply any public water system, and if the presence of such contaminant may result in such system's not complying with any national primary drinking water regulation, or may otherwise adversely affect the health of persons.(b) Injection pressure and volume at the wellhead shall not exceed a maximum which shall be calculated so as to assure the pressure and volume in the injection zone does not cause movement of fluid out of the injection zone.(c) The owner or operator of an AR injection well that has ceased operations for more than two years shall provide verification of the well's mechanical integrity and notification of intent to resume operations to the executive director at least 30 days prior to resuming operation of the well.(d) The owner or operator shall maintain the mechanical integrity of all wells operated under this section.(e) The quality of the water injected at an AR injection well must meet the requirements in §331.267(a)(1) of this title (relating to Additional Requirements).(f) All AR injection wells must be installed with a flow meter for measuring the volume of water injected.</content><note type="source"><p>Source Note: The provisions of this §331.265 adopted to be effective May 28, 2020, 45 TexReg 3458.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scO/s331.266"><num value="331.266">§331.266</num><heading>Monitoring and Reporting Requirements</heading><content>(a) An aquifer recharge (AR) project operator shall monitor each AR injection well associated with an AR project. By no later than March 1 of each calendar year, the project operator shall provide the executive director a written report of the following information for the previous year:(1) the volume of water injected for recharge; and(2) other information as determined by the executive director as necessary for the protection of underground sources of drinking water.(b) At least on an annual basis and each time the source changes, an AR project operator shall perform water-quality testing on water to be injected at an AR injection well. All environmental laboratory analyses shall be performed by laboratories accredited under the Texas Laboratory Accreditation Program using National Environmental Laboratory Accreditation Conference standards. Within 60 days of sampling, the AR project operator shall provide to the executive director a written report of the results of this testing. The report shall include the test results for all water-quality parameters identified in the individual permit, general permit, or authorization by rule.</content><note type="source"><p>Source Note: The provisions of this §331.266 adopted to be effective May 28, 2020, 45 TexReg 3458.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c331/scO/s331.267"><num value="331.267">§331.267</num><heading>Additional Requirements</heading><content>(a) The executive director or commission shall consider the following before issuing an individual permit, a general permit, or an authorization by rule for an aquifer recharge (AR) injection well:(1) whether the injection of water will comply with the standards set forth under the federal Safe Drinking Water Act (42 United States Code, §§300f, et seq); (2) the effect of the AR project on existing water wells;(3) the effect of the AR project on existing springs and other surface features that connect to the injection interval; and(4) whether the introduction of water into the receiving geologic formation will alter the physical, chemical, or biological quality of the native groundwater to a degree that would: (A) render the groundwater produced from the receiving formation harmful or detrimental to people, animals, vegetation, or property; or(B) require an unreasonably higher level of treatment of the groundwater produced from the receiving geologic formation than is necessary before AR project initiation for the native groundwater to render the groundwater suitable for beneficial use.(b) Upon completion of an AR injection well, the following information, as applicable, shall be submitted to the executive director within 30 days of receipt of the results of all analyses and test results:(1) as-built drilling and completion data on the well;(2) all logging and testing data on the well;(3) formation fluid analyses;(4) injection fluid analyses;(5) injectivity and pumping tests determining well capacity and reservoir characteristics;(6) hydrogeologic modeling, with supporting data, predicting the results of injection fluid interaction with the receiving formation and the native groundwater, and predicting injection fluid movement; and(7) other information as determined by the executive director as necessary for the protection of underground sources of drinking water.</content><note type="source"><p>Source Note: The provisions of this §331.267 adopted to be effective May 28, 2020, 45 TexReg 3458.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c332"><num value="332">CHAPTER 332</num><heading>COMPOSTING</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c332/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL INFORMATION</heading><section identifier="/us/state/tx/tac/t30/p1/c332/scA/s332.1"><num value="332.1">§332.1</num><heading>Purpose</heading><content>The purpose of this chapter is to establish regulations that will divert organic materials from the typical municipal solid waste stream, and promote the beneficial reuse of those materials while maintaining standards for human health and safety and environmental protection.</content><note type="source"><p>Source Note: The provisions of this §332.1 adopted to be effective November 29, 1995, 20 TexReg 9717.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scA/s332.2"><num value="332.2">§332.2</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.(1) Agricultural materials--Litter, manure, bedding, feed material, vegetative material, and dead animal carcasses from agricultural operations.(2) Agricultural operations--Operations involved in the production of agricultural materials.(3) Air contaminant--Particulate matter, radioactive material, dust, fumes, gas, mist, smoke, vapor, or odor or any combination thereof produced by processes other than natural. Water vapor shall not be considered an air contaminant.(4) All-weather roads--A roadway that has been designed to withstand the maximum load imposed by vehicles entering and exiting the facility during all types of weather conditions.(5) Anaerobic composting--The controlled biological decomposition of organic materials through microbial activity which occurs in the absence of free oxygen. Anaerobic composting does not include the stockpiling of organic materials.(6) Backyard operations--The composting, land application, and mulching of non-industrial organic material, such as grass clippings, leaves, brush, clean wood material, or vegetative food material, generated by a homeowner, tenant of a single or multi-family residential or apartment complex, or a commercial or institutional complex where the composting, land application or mulching occurs on the dwelling property and the final product is utilized on the same property. Backyard operations include neighborhood composting demonstration sites that generate less than 50 cubic yards of final product per year.(7) Batch (or Sampling batch)--The lot of produced compost represented by one analytical sample (3,000 cubic yards or 5,000 cubic yards depending on facility type).(8) Beneficial reuse--Any agricultural, horticultural, reclamation, or similar use of compost as a soil amendment, mulch, or component of a medium for plant growth, when used in accordance with generally accepted practice and where applicable is in compliance with the final product standards established by this chapter. Simply offering a product for use does not constitute beneficial reuse. Beneficial reuse does not include placement in a disposal facility, use as daily cover in a disposal facility, or utilization for energy recovery.(9) Bulking Agent--An ingredient in a mixture of composting materials included to improve structure and porosity (which improve convective air flow and reduce settling and compaction) and/or to lower moisture content. Bulking agents may include but are not limited to: compost, straw, wood chips, saw dust, or shredded brush.(10) Clean wood material--Wood or wood materials, including stumps, roots, or vegetation with intact rootball, sawdust, pallets, and manufacturing rejects. Clean wood material does not include wood that has been treated, coated or painted by materials such as, but not limited to, paints, varnishes, wood preservatives, or other chemical products. Clean wood material also does not include demolition material, where the material is contaminated by materials such as, but not limited to, paint or other chemicals, glass, electrical wiring, metal, and sheetrock.(11) Commission--The Texas Commission on Environmental Quality.(12) Compost--The stabilized product of the decomposition process that is used or distributed for use as a soil amendment, artificial topsoil, growing medium amendment, or other similar uses.(13) Composting or functionally aerobic composting--The controlled, biological decomposition of organic materials through microbial activity that occurs in the presence of free oxygen. Composting or functionally aerobic composting does not include the stockpiling of organic materials.(14) Cured compost (CC)--A highly stabilized product that results from exposing mature compost to a prolonged period of humification and mineralization.(15) Dairy material--Products that have a Standard of Identity defined in 21 Code of Federal Regulations Part 131.(16) Distribute--To sell, offer for sale, expose for sale, consign for sale, barter, exchange, transfer possession or title, or otherwise supply.(17) Executive director--The Executive Director of the Texas Commission on Environmental Quality or their duly authorized representative.(18) Facility-- All contiguous land, structures, other appurtenances, and improvements on land used for receiving and storing organic materials and processing them into useable final products.(19) Feedstock--Any material used for land application or as a basis for the manufacture of compost, mulch, or other useable final product.(20) Final Product--Composted material meeting testing requirements of §332.71 of this title (relating to Sampling and Analysis Requirements for Final Product) and awaiting distribution or disposal.(21) Fish feedstocks--Fish, shellfish, or seafood and by-products of these materials whether raw, processed, or cooked. Fish feedstocks does not include oils and/or greases that are derived from these same materials.(22) Foreign matter--Inorganic and organic constituents that are not readily decomposed, including metals, glass, plastics, and rubber, but not including sand, dirt, and other similar materials.(23) Grab sample--A single sample collected from one identifiable location.(24) Grease--See the definition of Oil in this section.(25) Hours of operation--Those hours when the facility is open to receive feedstock, incorporate feedstock into the process, retrieve product from the process, and/or ship product.(26) Land application--The spreading of yard trimmings, manure, clean wood material, and/or vegetative food materials onto the surface of the land or the incorporation of these materials within three feet of the surface.(27) Leachate--Liquid that has come in contact with or percolated through materials being stockpiled, processed, or awaiting removal and that has extracted, dissolved, or suspended materials. Leachate also includes condensate from gases resulting from the composting process.(28) Manure--Animal excreta and residual materials that have been used for bedding, sanitary, or feeding purposes for such animals.(29) Mature compost--Mature compost is the stabilized product of composting that has achieved the appropriate level of pathogen reduction (see definitions of "PFRP" and "PSRP" in this section) and is beneficial to plant growth, and meets the requirements of Table 2 of §332.72 of this title (relating to Final Product Grades).(30) Maturity--A measure of the lack of biological activity in freshly aerated materials, resulting from the decomposition of the incoming feedstock during the active composting period.(31) Meat feedstocks--Meat and meat by-products whether raw, processed, or cooked including whole animal carcasses, poultry, and eggs. Meat feedstocks does not include oils and/or greases that are derived from these same materials.(32) Mixed municipal solid waste--Garbage, refuse, and other solid waste from residential, commercial, industrial non-hazardous, and community activities that is generated and collected in aggregate.(33) Mulch--Ground, coarse, woody yard trimmings, and clean wood material. Mulch is normally used around plants and trees to retain moisture and suppress weed growth, and is intended for use on top of soil or other growing media rather than being incorporated into the soil or growing media. Mulch does not include wood from trees or other plants that have been systemically killed using herbicides.(34) Municipal sewage sludge--Solid, semi-solid, or liquid residue generated during the treatment of domestic sewage in treatment works. Sewage sludge includes, but is not limited to, domestic septage; scum or solids removed in primary, secondary, or advanced wastewater treatment processes; and material derived from sewage sludge. Sewage sludge does not include ash generated during the firing of sewage sludge in a sewage sludge incinerator or grit and screening generated during preliminary treatment of domestic sewage in a treatment works.(35) Nuisance--Nuisances as set forth in the Texas Health and Safety Code, Chapter 341, the Texas Water Code, Chapter 26, and §101.4 of this title (relating to Nuisance).(36) Oil--Any material rendered from vegetative material, dairy material, meat or fish feedstocks that is soluble in trichlorotrifluoroethane. It includes other material extracted by the solvent from an acidified sample and not volatilized during the test. Oil and greases do not include grease trap waste.(37) One hundred-year floodplain--Any land area that is subject to a 1.0% or greater chance of flooding in any given year from any source.(38) Operator--The person(s) responsible for operating the facility or part of a facility.(39) Quality Assurance/Quality Control (QAQC) plan--A written plan to describe standard operating procedures used to sample, prepare, store, and test final product, and report test results. The plan outlines quality assurance criteria, as well as quality control procedures, needed to meet the operational specifications of this chapter.(40) Quality Assurance Program Plan (QAPP)--A QAQC plan prepared by the agency that may be substituted for the QAQC plan.(41) Paper--A material made from plant fibers (such as, but not limited to wood pulp, rice hulls, and kenaf). The sludge byproduct resulting from the production of paper may be approved as a feedstock pursuant to §332.33(b) of this title (relating to Required Forms, Applications, Reports, and Request To Use the Sludge Byproduct of Paper Production).(42) Permit--A written document issued by the commission that, by its conditions, may authorize the owner or operator to construct, install, modify, or operate a facility or operation in accordance with specific limitations.(43) Person--Any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character.(44) PFRP--The process to further reduce pathogens as described in 40 Code of Federal Regulations Part 503, Appendix B.(45) Positively-sorted organic material--Positively-sorted organic material includes materials such as, but not limited to, yard trimmings, clean wood materials, manure, vegetative material, paper, and meat and fish feedstocks that are sorted or pulled out as targeted compostable organic materials from mixed municipal solid waste prior to the initiation of processing.(46) Processing--Actions that are taken to land apply feedstocks or convert feedstock materials into finished compost, mulch, or a useable final product. Processing does not include the stockpiling of materials.(47) PSRP--The process to significantly reduce pathogens as described in 40 Code of Federal Regulations Part 503, Appendix B.(48) Recyclable material--For purposes of this chapter, a recyclable material is a material that has been recovered or diverted from the solid waste stream for purposes of reuse, recycling, or reclamation, a substantial portion of which is consistently used in the manufacture of products that may otherwise be produced from raw or virgin materials. Recyclable material is not solid waste unless the material is deemed to be hazardous solid waste by the administrator of the United States Environmental Protection Agency, whereupon it shall be regulated accordingly unless it is otherwise exempted in whole or in part from regulation under the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. If, however, recyclable materials may become solid waste at such time, if any, as it is abandoned or disposed of rather than recycled, whereupon it will be solid waste with respect only to the party actually abandoning or disposing of the material.(49) Recycling--A process by which materials that have served their intended use or are scrapped, discarded, used, surplus, or obsolete are collected, separated, or processed and returned to use in the form of raw materials in the production of new products. Recycling includes the composting process if the compost material is put to beneficial reuse as defined in this section.(50) Residence--A single-family or multi-family dwelling.(51) Run-off--Any rainwater, leachate, or other liquid that drains over land from any part of a facility.(52) Run-on--Any rainwater, leachate, or other liquid that drains over land onto any part of a facility.(53) Semi-mature compost (SMC)--Organic matter that has been through the thermophilic stage and achieved the appropriate level of pathogen reduction (see definitions of "PFRP" and "PSRP" in this section). It has undergone partial decomposition but it is not yet stabilized into mature compost. Semi-mature compost shall not be packaged, as uncontrolled microbial transformations will occur.(54) Solid waste--Garbage; rubbish; refuse; sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility; and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, municipal, commercial, mining, and agricultural operations from community and institutional activities.(55) Source-separated--Set apart from waste after use or consumption by the user or consumer.(56) Source-separated organic material--Organic materials from residential, commercial, industrial, and other community activities, that at the point of generation have been separated, collected, and transported separately from non-organic materials, or transported in the same vehicle as non-organic materials but in separate compartments. Source-separated organic material may include materials such as, but not limited to, yard trimmings, clean wood materials, manure, vegetative material, and paper. Yard trimmings and clean wood material collected with whitegoods, as in brush and bulky item collections, will be considered source-separated organic materials for the purposes of these rules.(57) Stockpile--A collection of materials that is either awaiting processing or removal.(58) Unauthorized material--Material that is not authorized to be processed in a particular type of composting, mulching, or land application facility.(59) Vector--An agent, such as an insect, snake, rodent, bird, or animal capable of mechanically or biologically transferring a pathogen from one organism to another.(60) Vegetative material--Fruit, vegetable, or grain material whether raw, processed, liquid, solid, or cooked. Vegetative material does not include oils and/or greases that are derived from these same materials.(61) Voucher--Provides the same information as required on a label to persons receiving compost distributed in bulk.(62) Wet weight--The weight of the material as used, not a weight that has been adjusted by subtracting the weight of water within the feedstock.(63) Wetlands--Those areas defined as wetlands in the Texas Water Code, Chapter 26.(64) White goods--Discarded large household appliances such as refrigerators, stoves, washing machines, or dishwashers.(65) Yard trimmings--Leaves, grass clippings, yard and garden debris, and brush, including clean woody vegetative material not greater than six inches in diameter, that results from landscaping maintenance and land-clearing operations. Yard trimmings does not include stumps, roots, or shrubs with intact root balls.</content><note type="source"><p>Source Note: The provisions of this §332.2 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scA/s332.3"><num value="332.3">§332.3</num><heading>Applicability</heading><content>(a) Permit required. The following compost operations are subject to the general requirements found in §332.4 of this title (relating to General Requirements), and the requirements set forth in Subchapters D - G of this chapter (relating to Operations Requiring a Permit; Source-Separated Recycling; Household Hazardous Waste Collection; and End-Product Standards), and the air quality requirements in §332.8 of this title (relating to Air Quality Requirements). These operations are required to obtain a permit from the commission under Chapters 305 and 281 of this title (relating to Consolidated Permits; and Applications Processing):(1) operations that compost mixed municipal solid waste;(2) operations that add any amount of mixed municipal solid waste as a feedstock in the composting process; and(3) operations that commercially compost grease trap waste on or after September 1, 2003. Grease trap waste is material collected in and from an interceptor in the sanitary sewer service line of a commercial, institutional, or industrial food service or processing establishment, including the solids resulting from de-watering processes.(A) All proposed operations that compost any amount of grease trap waste must apply for a permit and must have a permit prior to operating.(B) Existing facilities that are composting grease trap waste under a current registration can continue to operate as authorized by that registration if:(i) the person holding the registration submits an application for a permit under Subchapter D of this chapter not later than the 30th day after receiving notice from the commission of the requirement to submit an application under Texas Health and Safety Code, §361.428(d); and(ii) the commission declares the application administratively complete on or before June 1, 2004.(b) Registration required. The following compost operations are subject to the requirements found in §332.4 of this title, the requirements set forth in Subchapters C and G of this chapter (relating to Operations Requiring a Registration; and End-Product Standards), and the air quality requirements in §332.8 of this title:(1) operations that compost municipal sewage sludge, except those facilities that compost municipal sewage sludge with mixed municipal solid waste;(2) operations that compost positively-sorted organic materials from the municipal solid waste stream;(3) operations that compost source-separated organic materials not exempted under subsection (d) of this section;(4) operations that compost disposable diapers or paper products soiled by human excreta;(5) operations that compost the sludge byproduct generated from the production of paper if the executive director determines that the feedstock is appropriate under §332.33 of this title (relating to Required Forms, Applications, Reports, and Request to Use the Sludge Byproduct of Paper Production); and(6) operations that incorporate any of the materials set forth in paragraphs (1) - (5) of this subsection with source-separated yard trimmings, clean wood material, vegetative material, paper, manure, meat, fish, dairy, oil, grease materials, or dead animal carcasses.(c) Operations requiring notification. The following operations are subject to all requirements set forth in Subchapter B of this chapter (relating to Operations Requiring a Notification), the general requirements found in §332.4 of this title, and the air quality requirements in §332.8 of this title:(1) operations that compost any source-separated meat, fish, dead animal carcasses, oils, greases, or dairy materials; and(2) operations that incorporate any of the materials set forth in paragraph (1) of this subsection with source-separated yard trimmings, clean wood material, vegetative material, paper, or manure.(d) Operations exempt from facility notification, registration, and permit requirements. The following operations are subject to the general requirements found in §332.4 of this title, the air quality requirements in §332.8 of this title, and are exempt from notification, registration, and permit requirements found in Subchapters B - D of this chapter. Operations under paragraphs (1) and (3) of this subsection are subject to the requirements of a Notice of Intent to Recycle under §328.4 and §328.5 of this title (relating to Limitations on Storage of Recyclable Materials; and Reporting and Recordkeeping Requirements):(1) operations that compost only materials listed in subparagraphs (A) and (B) of this paragraph:(A) source-separated yard trimmings, clean wood material, vegetative material, paper, and manure;(B) source-separated industrial materials listed in §332.4(10) of this title excluding those items listed in §332.4(10)(A), (F) - (H), and (J) of this title;(2) agricultural operations that generate and compost agricultural materials on-site;(3) mulching operations;(4) land application of yard trimmings, clean wood materials, vegetative materials, and manure at rates below or equal to agronomic rates as determined by the Texas Agricultural Extension Service;(5) application of paper that is applied to land for use as an erosion control or a soil amendment; and(6) on-site composting of industrial solid waste at a facility that is in compliance with §335.2 of this title (relating to Permit Required) and §335.6 of this title (relating to Notification Requirements).</content><note type="source"><p>Source Note: The provisions of this §332.3 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective September 12, 2002, 27 TexReg 8593; amended to be effective January 8, 2004, 29 TexReg 140; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scA/s332.4"><num value="332.4">§332.4</num><heading>General Requirements</heading><content>All composting facilities and backyard operations shall comply with all of the following general requirements. Violations of these requirements are subject to enforcement by the commission and may result in the assessment of civil or administrative penalties pursuant to Texas Water Code, Chapter 7 (Enforcement).(1) Compliance with Texas Water Code. The activities that are subject to this chapter shall be conducted in a manner that prevents the discharge of material to or the pollution of surface water or groundwater in accordance with the provisions of the Texas Water Code, Chapter 26 (Water Quality Control).(2) Nuisance conditions. The composting, mulching, and land application of material shall be conducted in a sanitary manner that shall prevent the creation of nuisance conditions as defined in §330.3 of this title (relating to Definitions) and as prohibited by the Texas Health and Safety Code, Chapters 341 and 382 (Minimum Standards of Sanitation and Health Protection Measures; and Clean Air Act), the Texas Water Code, Chapter 26 (Water Quality Control), §101.4 of this title (relating to Nuisance), and any other applicable regulations or statutes.(3) Discharge to surface water or groundwater. The discharge of material to or the pollution of surface water or groundwater as a result of the beneficial use or reuse and recycling of material is prohibited.(4) Compliance with federal laws. Facility operations shall be conducted in accordance with all applicable federal laws and regulations.(5) Compliance with state laws. Facility operations shall be conducted in accordance with all applicable laws and regulations of the State of Texas.(6) Facility operations. Facility operations shall not be conducted in a manner which causes endangerment of human health and welfare, or the environment.(7) Operations on a municipal solid waste landfill unit. No composting activities shall be conducted within the permitted boundaries of a municipal solid waste landfill without prior approval by the executive director as required by §305.70 of this title (relating to Municipal Solid Waste Permit and Registration Modifications).(8) Operational requirement. Operations shall be conducted in such a manner to ensure that no unauthorized or prohibited materials are processed at the facility. All unauthorized or prohibited materials received by the facility shall be disposed of at an authorized facility in a timely manner.(9) Leachate. Leachate from landfills and mixed municipal solid waste composting operations shall not be used on any composting process, except mixed municipal solid waste composting, and shall not be added after the designation of an end-product grade unless the product is reanalyzed to determine end-product quality.(10) Nonhazardous industrial solid waste. This chapter applies to the composting, mulching, and land application of only the following nonhazardous industrial solid waste when the composting occurs on property that does not qualify for the exemption from the requirement of an industrial solid waste permit pursuant to §335.2(d) of this title (relating to Permit Required):(A) dead animal carcasses;(B) clean wood material;(C) vegetative material;(D) paper;(E) manure (including paunch manure);(F) meat feedstocks;(G) fish feedstocks;(H) dairy material feedstocks;(I) yard trimmings; and(J) oils and greases.(11) Industrial and hazardous waste. Any of the materials listed in paragraph (10) of this section that are not managed in accordance with the requirements of this chapter, all hazardous wastes, and any nonhazardous industrial solid wastes not listed in paragraph (10) of this section shall be managed in accordance with Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste).(12) Chemicals of concern. The operator of a compost facility shall address the release of a chemical of concern from a compost facility to any environmental media under the requirements of Chapter 350 of this title (relating to Texas Risk Reduction Program) to perform the corrective action.</content><note type="source"><p>Source Note: The provisions of this §332.4 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective September 23, 1999, 24 TexReg 7417; amended to be effective September 12, 2002, 27 TexReg 8593; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scA/s332.5"><num value="332.5">§332.5</num><heading>Variances</heading><content>(a) In specific cases the executive director may approve a variance from the requirements of this chapter if the variance is not contrary to the public health and safety and, due to special conditions, a literal enforcement of this chapter would result in unnecessary hardship, and so that the spirit of the chapter is observed. A variance may not be approved concerning the procedural requirements of this chapter, including application procedures and the filing of reports, or concerning the provisions of §332.8 of this title (relating to Air Quality Requirements).(b) A request for a variance must be submitted in writing to the executive director. The request may be made in an application for a registration or permit. Any approval of a variance must be in writing from the executive director.(c) If the variance is requested for a facility permitted under this chapter, the commission must approve the variance.</content><note type="source"><p>Source Note: The provisions of this §332.5 adopted to be effective November 29, 1995, 20 TexReg 9717.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scA/s332.6"><num value="332.6">§332.6</num><heading>Compost and Mulch Operations Located at Municipal Solid Waste Facilities</heading><content>(a) Facilities that compost or mulch materials considered to be exempt, notification, or registered facilities in §332.3 of this title (relating to Applicability) may be located at municipal solid waste permitted facilities. The owner shall prepare and submit a modification request in accordance with the provisions of §305.70 of this title (relating to Municipal Solid Waste Permit and Registration Modifications) unless the municipal solid waste facility permit authorizes compost or mulch operations. If the municipal solid waste facility permit authorizes compost operations, the compost operation shall be conducted in accordance with the facility permit.(b) Facilities considered to be permitted facilities in §332.3 of this title (relating to Applicability) may be located at municipal solid waste permitted facilities. The owner shall prepare and submit an application for a major permit amendment in accordance with the provisions of §305.62 of this title (relating to Amendment) and shall submit the information required by §332.47 of this title (relating to Permit Application Preparation) and shall fully comply with the provisions of §332.41 of this title (relating to Permit Required).</content><note type="source"><p>Source Note: The provisions of this §332.6 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scA/s332.7"><num value="332.7">§332.7</num><heading>Compost Operations Located at Waste Water Treatment Facilities</heading><content>Municipal sewage sludge composting facilities considered to be registered facilities in §332.3 of this title (relating to Applicability) may be located at waste water treatment facilities that have received a water quality permit under the Texas Water Code, Chapter 26. The owner shall prepare and submit a modification to amend the water quality permit in accordance with the provisions of Chapter 305 of this title (relating to Consolidated Permits). The applicant shall comply with the provisions of §332.4 of this title (relating to General Requirements) and §332.31 of this title (relating to Definition of and Requirements for Registered Facilities) except where those provisions conflict with the provisions of the water quality permit. If the wastewater treatment facility has received a water quality permit under the Texas Water Code, Chapter 26, which authorizes compost operations, the compost operation shall be conducted in accordance with the facility permit.</content><note type="source"><p>Source Note: The provisions of this §332.7 adopted to be effective November 29, 1995, 20 TexReg 9717.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scA/s332.8"><num value="332.8">§332.8</num><heading>Air Quality Requirements</heading><content>(a) General requirements.(1) Any composting or mulching operation that has existing authority under the Texas Clean Air Act does not have to meet the air quality criteria of this subchapter. Under Texas Clean Air Act, §382.051, any new composting or mulching operation that meets all of the applicable requirements of this subchapter is entitled to an air quality standard permit authorization under this subchapter in lieu of the requirement to obtain an air quality permit under Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification).(2) Those composting or mulching operations that would otherwise be required to obtain air quality authorization under Chapter 116 of this title and that cannot satisfy all of the requirements of this subchapter, shall apply for and obtain air quality authorization under Chapter 116 of this title in addition to any notification, registration, or permit required in this subchapter.(3) Any composting or mulching operation authorized under this chapter that is a new major source or any modification that constitutes a major modification under nonattainment review or prevention of significant deterioration review as amended by the Federal Clean Air Act amendments of 1990, and regulations promulgation thereunder, is subject to the requirements of Chapter 116 of this title, in addition to any notification, registration, or permit required in this chapter.(4) Composting facilities that do not wish to comply with the requirements of this section are required to apply for and obtain air quality authorization under Chapter 116 of this title. Once a person has applied for and obtained air quality authorization under Chapter 116 of this title, the person is exempt from the air quality requirements of this chapter.(5) No person may concurrently hold an air quality permit issued under Chapter 116 of this title and an air quality standard permit authorized under this chapter for composting or mulching operations at the same site.(6) Composting or mulching operations that have authorization under this chapter shall comply with the general requirements in §332.4 of this title (relating to General Requirements), and subsections (b), (c), (d), or (e) of this section.(7) The operator of a composting or mulching operation operating under an air quality standard permit shall maintain on file at all times and make immediately available documentation that shows compliance with this section.(b) Exempt operations. Composting and mulching operations that are considered exempt operations under §332.3(d) of this title (relating to Applicability), and that meet the following requirements are entitled to an air quality standard permit.(1) If the total volume of materials to be mulched and/or composted, including in-process and processed materials at any time is greater than 2,000 cubic yards, the setback distance from all property boundaries to the edge of the area receiving, processing, or storing feedstock or finished product must be at least 50 feet.(2) All permanent in-plant roads and vehicle work areas shall be watered, treated with dust-suppressant chemicals, or paved and cleaned as necessary to achieve maximum control of dust emissions. Vehicular speeds on non-paved roads shall not exceed ten miles per hour.(3) Except for initial start-up and shut-down, the receiving chamber on all grinders shall be adequately filled prior to commencement of grinding and remain filled during grinding operations to minimize emissions from the receiving chamber or grinding operations shall occur inside an enclosed structure. In addition, all grinders not enclosed inside a building shall be equipped with low-velocity fog nozzles spaced to create a continuous fog curtain or the operator shall have portable watering equipment available during the grinding operation. These controls shall be utilized as necessary for maximum control of dust when stockpiling ground material.(4) All conveyors that off-load materials from grinders at a point that is not enclosed inside a building shall have available a water or mechanical dust suppression system. These controls shall be utilized as necessary for maximum control of dust when stockpiling ground material.(5) If there are any changes to the composting or mulching operation that would reclassify it from an exempt operation to a notification, registration, or permit facility as authorized under §332.3 of this title, the operation shall obtain an air quality standard permit for a notification, registered, or permitted composting operation.(c) Notification operations. Composting operations required to notify under §332.3(c) of this title that meet the following requirements are entitled to an air quality standard permit.(1) The setback distance from all property boundaries to the edge of the area receiving, processing, or storing feedstock or finished product must be at least 50 feet.(2) All permanent in-plant roads and vehicle work areas shall be watered, treated with dust-suppressant chemicals, or paved and cleaned as necessary to achieve maximum control of dust emissions. Vehicular speeds on non-paved roads shall not exceed ten miles per hour.(3) Prior to receiving any material with a high odor potential such as, but not limited to, dairy material feedstocks, meat, fish, and oil and grease feedstocks, the operator shall ensure that there is an adequate volume of bulking material to blend with/cover the material, and shall begin processing the material in a manner that prevents nuisances.(4) Except for initial start-up and shut-down, the receiving chamber on all grinders shall be adequately filled prior to commencement of grinding and remain filled during grinding operations to minimize emissions from the receiving chamber or grinding operations shall occur inside an enclosed structure. In addition, all grinders not enclosed inside a building shall be equipped with low-velocity fog nozzles spaced to create a continuous fog curtain or the operator shall have portable watering equipment available during the grinding operation. These controls shall be utilized as necessary for maximum control of dust when stockpiling ground material.(5) All conveyors that off-load materials from grinders at a point that is not enclosed inside a building shall have available a water or mechanical dust suppression system. These controls shall be utilized as necessary for maximum control of dust when stockpiling ground material.(6) If there are any changes to the composting or mulching operation that would reclassify it from a notification operation to a registration or permit operation as authorized under §332.3 of this title, the operation shall obtain an air quality standard permit for a registered or permitted composting operation.(d) Registered operations. Composting operations required to obtain a registration under §332.3(b) of this title that meet the following requirements are entitled to an air quality standard permit.(1) All permanent in-plant roads and vehicle work areas shall be watered, treated with dust-suppressant chemicals, or paved and cleaned as necessary to achieve maximum control of dust emissions. Vehicular speeds on non-paved roads shall not exceed ten miles per hour.(2) Prior to receiving any material with a high odor potential such as, but not limited to, dairy material feedstocks, sewage sludge, meat, fish, and oil and grease feedstocks, the operator shall ensure that there is an adequate volume of bulking material to blend with or cover the material, and shall begin processing the material in a manner that prevents nuisances.(3) All material shall be conveyed mechanically, or if conveyed pneumatically, the conveying air shall be vented to the atmosphere through a fabric filter(s) having a maximum filtering velocity of 4.0 ft/min with mechanical cleaning or 7.0 ft/min with air cleaning.(4) Except for initial start-up and shut-down, the receiving chamber on all grinders shall be adequately filled prior to commencement of grinding and remain filled during grinding operations to minimize emissions from the receiving chamber or grinding operations shall occur inside an enclosed structure. In addition, all grinders not enclosed inside a building shall be equipped with low-velocity fog nozzles spaced to create a continuous fog curtain or the operator shall have portable watering equipment available during the grinding operation. These controls shall be utilized as necessary for maximum control of dust when stockpiling ground material.(5) All conveyors that off-load materials from grinders at a point that is not enclosed inside a building shall have available a water or mechanical dust suppression system. These controls shall be utilized as necessary for maximum control of dust when stockpiling ground material.(6) If there are any changes to the composting or mulching operation that would reclassify it from a registration operation to a permit operation as authorized under §332.3 of this title, the operation shall obtain an air quality standard permit for a permitted composting operation.(e) Permit operations. Composting operations required to obtain a permit under §332.3(a) of this title that meet the following requirements are entitled to an air quality standard permit.(1) All permanent in-plant roads and vehicle work areas shall be watered, treated with dust-suppressant chemicals, or paved and cleaned as necessary to achieve maximum control of dust emissions. Vehicular speeds on non-paved roads shall not exceed ten miles per hour.(2) Prior to receiving any material with a high odor potential such as, but not limited to, dairy material feedstocks, sewage sludge, meat, fish, oil and grease feedstocks, grease trap waste, and municipal solid waste, the operator shall ensure that there is an adequate volume of bulking material to blend with or cover the material, and shall begin processing the material in a manner that prevents nuisances.(3) All material shall be conveyed mechanically, or if conveyed pneumatically, the conveying air shall be vented to the atmosphere through a fabric filter(s) having a maximum filtering velocity of 4.0 ft/min with mechanical cleaning or 7.0 ft/min with air cleaning.(4) Except for initial start-up and shut-down, the receiving chamber on all grinders shall be adequately filled prior to commencement of grinding and remain filled during grinding operations to minimize emissions from the receiving chamber or grinding operations shall occur inside an enclosed structure. In addition, all grinders not enclosed inside a building shall be equipped with low-velocity fog nozzles spaced to create a continuous fog curtain or the operator shall have portable watering equipment available during the grinding operation. These controls shall be utilized as necessary for maximum control of dust when stockpiling ground material.(5) All conveyors that off-load materials from grinders at a point that is not enclosed inside a building shall have available a water or mechanical dust suppression system. These controls shall be utilized as necessary for maximum control of dust when stockpiling ground material.(6) All activities that could result in increased odor emissions such as turning of compost piles shall be conducted in a manner that does not create nuisance conditions or shall only be conducted inside a building maintained under negative pressure and controlled with a chemical oxidation scrubbing system or bio filter system.</content><note type="source"><p>Source Note: The provisions of this §332.8 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective January 8, 2004, 29 TexReg 140; amended to be effective February 3, 2022, 47 TexReg303.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c332/scB"><num value="B">SUBCHAPTER B</num><heading>OPERATIONS REQUIRING A NOTIFICATION</heading><section identifier="/us/state/tx/tac/t30/p1/c332/scB/s332.21"><num value="332.21">§332.21</num><heading>Operations Requiring Notification</heading><content>The following operations are subject to all the requirements of this subchapter, the General Requirements found in §332.4 of this title (relating to General Requirements), and the air quality requirements of §332.8 of this title (relating to Air Quality Requirements).(1) Operations that compost any source-separated meat, fish, dead animal carcasses, oils, greases, or dairy materials.(2) Operations that incorporate any of the materials set forth in paragraph (1) of this section with source-separated yard trimmings, clean wood material, vegetative material, paper, or manure.</content><note type="source"><p>Source Note: The provisions of this §332.21 adopted to be effective November 29, 1995, 20 TexReg 9717.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scB/s332.22"><num value="332.22">§332.22</num><heading>Notification</heading><content>(a) The operator shall notify the executive director in writing of the existence of the facility 30 days prior to construction by completing and submitting forms provided by the executive director.(b) The applicant shall include a map depicting the approximate boundaries of the facility and all land bordering the facility. The applicant shall also include a list, attached to the map, of the names and addresses of the owners of the land bordering the facility such as can be determined from the current county tax rolls or other reliable sources at the time the application is filed. The applicant shall include the source of the information included in such list. The chief clerk shall mail notice of the planned facility to the list of property owners provided under this subsection. The chief clerk shall also mail notice to other affected landowners as directed by the executive director.</content><note type="source"><p>Source Note: The provisions of this §332.22 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scB/s332.23"><num value="332.23">§332.23</num><heading>Operational Requirements</heading><content>Operation of the facility shall comply with all of the following operational requirements.(1) Aerobic composting required. The facility shall utilize functionally aerobic composting methods, although an anaerobic composting phase may be utilized in the early stages of processing, if it is followed by a period of functionally aerobic composting.(2) Pathogen reduction. One of the following protocols shall be used to reduce pathogens during composting:(A) Using either the within-vessel composting method or the static aerated pile composting method, the temperature of the composting materials shall be maintained at 55 degrees Celsius or higher for three days; or(B) Using the windrow composting method, the temperature of the composting materials shall be maintained at 55 degrees Celsius or higher for 15 days or longer. During the period when the composting materials are maintained at 55 degrees Celsius or higher, there shall be a minimum of five turnings of the windrow.(3) Prohibited substances. Fungicides, herbicides, insecticides or other pesticides that contain constituents listed in 40 Code of Federal Regulations Part 261, Appendix VIII-Hazardous Constituents or on the Hazardous Substance List as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) shall not be applied to or incorporated into feedstocks, in-process materials or processed materials.(4) The operator of a compost facility shall address the release of a chemical of concern from a compost facility to any environmental media under the requirements of Chapter 350 of this title (relating to Texas Risk Reduction Program) to perform the corrective action.(5) The facility shall be subject to the requirements of §328.4 of this title (relating to Limitations on Storage of Recyclable Materials) and §328.5 of this title (relating to Reporting and Recordkeeping Requirements).</content><note type="source"><p>Source Note: The provisions of this §332.23 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective September 23, 1999, 24 TexReg 7417; amended to be effective September 12, 2002, 27 TexReg 8593; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c332/scC"><num value="C">SUBCHAPTER C</num><heading>OPERATIONS REQUIRING A REGISTRATION</heading><section identifier="/us/state/tx/tac/t30/p1/c332/scC/s332.31"><num value="332.31">§332.31</num><heading>Definition of and Requirements for Registered Facilities</heading><content>(a) Definition of registered facilities. The following operations are subject to the requirements of this subchapter:(1) operations that compost municipal sewage sludge, except those facilities that compost municipal sewage sludge with mixed municipal solid waste;(2) operations that compost positively-sorted organic materials from the municipal solid waste stream;(3) operations that compost source-separated organic materials not exempted under §332.3(d) of this title (relating to Applicability);(4) operations that compost disposable diapers or paper products soiled by human excreta;(5) operations that compost the sludge byproduct generated from the production of paper if the executive director determines that the feedstock is appropriate under §332.33 of this title (relating to Required Forms, Applications, Reports, and Request To Use the Sludge Byproduct of Paper Production); and(6) operations that incorporate any of the materials set forth in paragraphs (1) - (5) of this subsection with source-separated yard trimmings, clean wood material, vegetative material, paper, manure, meat, fish, dairy, oil, grease materials, or dead animal carcasses.(b) Requirements for registered facilities. The operations listed in subsection (a) of this section are subject to the requirements found in §332.4 of this title (relating to General Requirements), the requirements set forth in this subchapter, the requirements set forth in Subchapter G of this chapter (relating to End-Product Standards) and the air quality requirements set forth in §332.8 of this title (relating to Air Quality Requirements).</content><note type="source"><p>Source Note: The provisions of this §332.31 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective January 8, 2004, 29 TexReg 140.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scC/s332.32"><num value="332.32">§332.32</num><heading>Certification by Engineer, Approval by Land Owner, and Inspection</heading><content>(a) Certification by licensed professional engineer. The operator shall obtain certification by a Texas-Licensed Professional Engineer that the facility has been constructed as designed and is in general compliance with the regulations prior to accepting any feedstock at the facility that requires registration. The operator shall maintain that certification on-site for inspection by the commission.(b) Ownership or control of property. The facility shall be located on property owned by the operator or the operator shall establish, using an affidavit form provided by the commission, signed by the owner and notarized, that the owner is aware of and consents to the operation prior to any receipt of feedstock or processing activities. A copy of the affidavit shall be kept on-site at all times.(c) Inspection of facility. Prior to the initial acceptance of any feedstocks, the facility shall be inspected by the agency to determine compliance with the registration.</content><note type="source"><p>Source Note: The provisions of this §332.32 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scC/s332.33"><num value="332.33">§332.33</num><heading>Required Forms, Applications, Reports, and Request to Use the Sludge Byproduct of Paper Production</heading><content>(a) The operator of the compost facility shall submit the following.(1) Registration application form. The operator shall submit a registration application form available from the executive director.(2) Registration application. The registration application described in §332.34 of this title (relating to Registration Application).(3) Reports.(A) Final products.(i) Semiannual reports. Facilities requiring registration must submit reports on final product testing to the executive director in compliance with §332.71(j)(1) of this title (relating to Sampling and Analysis Requirements for Final Product) on a semiannual basis.(ii) Annual reports. The operator shall submit annual written reports. These reports shall at a minimum include input and output quantities, a description of the end-product distribution, and all results of any required laboratory testing. A copy of the annual report shall be kept on-site for a period of five years.(B) Received materials. All registered facility operators shall follow the same reporting requirements for received materials as established in §332.43(2)(B) of this title (relating to Required Forms, Applications, and Reports).(4) Fees. Registered compost facilities shall follow the same fee requirements as permitted compost facilities established in §332.43(3) of this title.(b) In order to use the sludge byproduct of paper production as a composting feedstock, the operator must first receive permission from the executive director.(1) The operator shall submit a request to the executive director to use the sludge byproduct as a feedstock. The request may also be submitted with a registration application.(2) At a minimum, the request shall present all of the following:(A) identification of the source of the sludge byproduct;(B) a general description of the process that produces the sludge byproduct including the use of any elemental chlorine bleaches used in the process;(C) analytical results that identify concentrations for polychlorinated dibenzo-p-dioxins (CCDs) and polychlorinated dibenzofurans (CDFs); and(D) a demonstration that the final product will not be harmful to human health or the environment.(3) The executive director shall, after review of the request, determine approval or denial of the request.(4) An operator that receives approval from the executive director to include the sludge byproduct of paper production as a composting feedstock shall submit a new request to the executive director in accordance with this subsection if a significant change, such as a new source for the feedstock, is planned.</content><note type="source"><p>Source Note: The provisions of this §332.33 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective September 12, 2002, 27 TexReg 8593; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scC/s332.34"><num value="332.34">§332.34</num><heading>Registration Application</heading><content>Registration applications for composting must include:(1) Title page. The title page shall show the name of the project, the name of the applicant, and the location by city and county.(2) Signature of the applicant. The signature of the applicant(s), checked against agency requirements, in accordance with §305.44 of this title (relating to Signatories to Applications).(3) Affidavit. A notarized affidavit from the applicant(s) verifying land ownership and landowner agreement to the proposed activity.(4) Table of contents. The table of contents shall list and give the page numbers for the main sections of the application.(5) Legal authority. The applicant shall provide verification of his/her legal status. Normally, this is a one-page certificate of incorporation issued by the Office of the Secretary of State.(6) Evidence of competency. The applicant shall provide the following:(A) the names of the principals and supervisors of the applicant's organization relative to the proposed compost operation; and(B) the name, location, and permit or registration number of any compost operations or solid waste operations that it is operating or has operated in Texas.(7) Notice of appointment. The applicant shall provide a notice of appointment identifying the applicant's engineer.(8) Notice of coordination. The applicant shall provide notice of coordination with all local, state, and federal government officials and agencies.(9) Legal description. The applicant shall provide the following:(A) a legal description of the property and the county, book, and page number of the current ownership record from the county deed records; and(B) a boundary metes and bounds drawing and description of the site signed and sealed by a registered professional land surveyor.(10) Location description.(A) Map. The applicant shall clearly show the boundaries of the planned facility on a map that is all or a portion of a county map prepared by Texas Department of Transportation (TxDOT). At a minimum, the map shall be at a scale of 1/2 inch equals one mile.(B) Geographic coordinates. The applicant shall supply geographic coordinates for the southeast corner of the facility.(11) Landowner list. The applicant shall include a list of adjacent landowners and their addresses along with an appropriately scaled map locating the property owned by these persons.(12) Site operating plan. The applicant shall submit a site operating plan. This document is to provide guidance from the design engineer to site management and operating personnel in sufficient detail to enable them to conduct day-to-day operations in a manner consistent with the engineer's design. At a minimum, the site operating plan shall include specific guidance or instructions on all of the following:(A) the process description, which must be composed of a descriptive narrative along with a process diagram. The process description shall include the items listed in clauses (i) - (vi) of this subparagraph.(i) Feedstock identification. The applicant shall prepare a list of the materials intended for processing along with the anticipated volume to be processed. This section shall also contain an estimate of the daily quantity of material to be processed at the facility along with a description of the proposed process of screening for unauthorized and prohibited materials.(ii) Tipping process. Indicate what happens to the feedstock material from the point it enters the gate. Indicate how the material is handled in the tipping area, how long it remains in the tipping area, what equipment is used, how the material is evacuated from the tipping area, at what interval the tipping area is cleaned, and the process used to clean the tipping area.(iii) Process. Indicate what happens to the material as it leaves the tipping area. Indicate how the material is incorporated into the process and what process or processes are used until it goes to the post-processing area. The narrative shall include: water addition, processing rates, equipment, energy and mass balance calculations, and process monitoring method.(iv) Post-processing. Provide a complete narrative on the post-processing process, include post-processing times, identification and segregation of product, storage of product, quality assurance, and quality control.(v) Product distribution. Provide a complete narrative on product distribution including items such as: end-product quantities, anticipated final grades, packaging, labeling, loading, and tracking bulk material.(vi) Process diagram. Present a process diagram that displays graphically, the narrative generated in response to clauses (i) - (v) of this paragraph;(B) the minimum number of personnel and their functions to be provided by the site operator in order to have adequate capability to conduct the operation in conformance with the design and operational standards;(C) the minimum number and operational capacity of each type of equipment to be provided by the site operator in order to have adequate capability to conduct the operation in conformance with the design and operational standards;(D) security, site access control, traffic control, and safety;(E) control of dumping within designated areas, screening for unprocessable, prohibited, and unauthorized material;(F) a fire prevention and suppression plan that complies with provisions of the local fire code, which shall also be sent to the local fire protection entity responsible for responding to a fire at the facility;(G) control of windblown material;(H) vector control;(I) quality assurance and quality control.(i) Municipal sewage sludge compost facilities. The operator shall comply with the provisions of Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation).(ii) All other registered facilities. As a minimum, the applicant shall provide testing and assurance in accordance with the provisions of §332.71 of this title (relating to Sampling and Analysis Requirements for Final Product).(J) equipment failures, including alternative plans in the event of an equipment failure; and(K) a description of the anticipated final grade of the materials.(13) Construction plans and specifications. The applicant shall submit facility construction plans and specifications. The facility plans and specifications shall reflect the provisions of this chapter to the maximum extent possible.(14) Closure plan. The applicant shall provide a plan for proper closure of the facility, including disposition of any remaining feedstocks, in-process, and processed materials.(15) Financial assurance. The applicant shall be subject to the requirements of §328.5(c) - (e) of this title (relating to Reporting and Recordkeeping Requirements).</content><note type="source"><p>Source Note: The provisions of this §332.34 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective November 4, 2004, 29 TexReg 10130.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scC/s332.35"><num value="332.35">§332.35</num><heading>Registration Application Processing</heading><content>(a) An application shall be submitted to the executive director. When an application is administratively complete, the executive director shall assign the application an identification number.(b) Public Notice.(1) When an application is administratively complete the chief clerk shall mail notice to landowners identified in the landowner list. The chief clerk also shall mail notice to other affected landowners as directed by the executive director.(2) When an application is technically complete the chief clerk shall mail notice to landowners identified in the landowner list. The chief clerk shall also mail notice to other affected landowners as directed by the executive director. The applicant shall publish notice in the county in which the facility is located and in adjacent counties. The published notice shall be published once a week for three weeks. The applicant should attempt to obtain publication in a Sunday edition of a newspaper. The notice shall explain the method for submitting a motion for reconsideration.(3) Notice issued under paragraphs (1) or (2) of this subsection shall contain the following information:(A) the identifying number given the application by the executive director;(B) the type of registration sought under the application;(C) the name and address of the applicant(s);(D) the date on which the application was submitted; and(E) a brief summary of the information included in the application.(c) The executive director shall, after review of any application for registration of a compost facility, determine approval or denial of an application in whole or in part. The executive director shall base the decision on whether the application meets the requirements of this subchapter and the requirements of §332.4 of this title (relating to General Requirements).(d) At the same time that the executive director's decision is mailed to the applicant, a copy or copies of this decision shall also be mailed to all landowners identified in the landowner list and any affected landowners, residents, and businesses.(e) The applicant or a person affected by the executive director's final approval of an application may file with the chief clerk a motion to overturn, under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).</content><note type="source"><p>Source Note: The provisions of this §332.35 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective May 15, 1997, 22 TexReg 4004; amended to be effective May 14, 2020, 45 TexReg 3125; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scC/s332.36"><num value="332.36">§332.36</num><heading>Location Standards</heading><content>Facilities shall meet all of the following locational criteria.(1) One hundred-year floodplain. The facility shall be located outside of the 100-year floodplain unless the applicant can demonstrate that the facility is designed and will operate to prevent washout during a 100-year storm event, or obtains a Conditional Letter of Map Amendment (CLOMA) from the Federal Emergency Management Administration (FEMA) Administrator.(2) Drainage. The facility shall not significantly alter existing drainage patterns.(3) Wetlands. The facility shall not be located in wetlands.(4) Water wells. The facility shall be located at least 500 feet from all public water wells and at least 150 feet from private water wells.(5) Surface water. The facility shall be located at least 100 feet from creeks, rivers, intermittent streams, lakes, bayous, bays, estuaries, or other surface waters in the state.(6) Setback distance from facility boundary. The setback distance from the facility boundary to the areas for receiving, processing, or storing feedstock or final product shall be at least 50 feet.(7) Edwards Aquifer recharge zone. If located over the Recharge Zone of the Edwards Aquifer, a facility is subject to Chapter 213 of this title (relating to Edwards Aquifer). The Edwards Aquifer Recharge Zone is specifically that area delineated on maps in the office of the executive director.</content><note type="source"><p>Source Note: The provisions of this §332.36 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scC/s332.37"><num value="332.37">§332.37</num><heading>Operational Requirements</heading><content>The operation of the facility must comply with all of the following operational requirements.(1) Protection of surface water. The facility must be constructed, maintained, and operated to manage run-on and run-off during a 25-year, 24-hour rainfall event and must prevent discharge into waters in the state of feedstock material, including, but not limited to, in-process and/or processed materials. Any waters coming into contact with feedstock, in-process, and processed materials must be considered leachate. Leachate must be contained in retention facilities until reapplied on piles of feedstock, in-process, or unprocessed materials. The retention facilities must be lined and the liner must be constructed in compliance with paragraph (2) of this section. Leachate may be treated and processed at an authorized facility or as authorized by a Texas Pollutant Discharge Elimination System permit. The use of leachate in any processing must be conducted in a manner that does not contaminate the final product.(2) Protection of groundwater. The facility must be designed, constructed, maintained, and operated to protect groundwater. Facilities that compost municipal sewage sludge, disposable diapers, and/or the sludge byproduct of paper mill production must install and maintain a liner system complying with the provisions of subparagraph (A), (B), or (C) of this paragraph. The liner system must be provided where receiving, mixing, composting, post-processing, screening, or storage areas would be in contact with the ground or in areas where leachate, contaminated materials, contaminated product, or contaminated water is stored or retained. The application must demonstrate the facility is designed to prevent contamination or degradation of the groundwater. For the purposes of these sections, protection of the groundwater includes the protection of perched water or shallow surface infiltration. The lined surface must be covered with a material designed to withstand normal traffic from the composting operations. At a minimum, the lined surface must consist of soil, synthetic, or an alternative material that is equivalent to two feet of compacted clay with a hydraulic conductivity of 1 x 10-7 centimeters per second or less.(A) Soil liners shall have more than 30% passing a number 200 sieve, have a liquid limit greater than 30%, and a plasticity index greater than 15.(B) Synthetic liners shall be a membrane with a minimum thickness of 20 mils.(C) Alternative designs shall utilize an impermeable liner (such as concrete).(3) Unauthorized and prohibited materials. The operator shall operate the facility in a manner that will preclude the entry of any unauthorized or prohibited materials from entering the composting process.(4) Access. Access to the facility shall be controlled to prevent unauthorized disposal of unauthorized or prohibited material and scavenging. The facility shall be completely fenced with a gate that is locked when the facility is closed.(5) Nuisance conditions. The facility shall be sited and operated in such a manner as to prevent the potential of nuisance conditions and fire hazards. Where nuisance conditions or fire hazards exist, the operator will immediately take action to abate such nuisances. (6) Aerobic composting required. The facility shall utilize functionally aerobic composting methods, although an anaerobic composting phase may be utilized in the early stages of processing, if it is followed by a period of functionally aerobic composting.(7) Site sign. The facility shall have a sign at the entrance indicating the type of facility, the registration number, hours of operation, and the allowable feedstocks.(8) Access road. The facility access road shall be an all-weather road.(9) Authorization required for significant changes. The operator shall obtain written permission from the commission before changing the processing method or other significant changes to the original registration application.(10) Prohibited substances. Fungicides, herbicides, insecticides, or other pesticides that contain constituents listed in 40 Code of Federal Regulations Part 261, Appendix VIII-Hazardous Constituents or on the Hazardous Substance List as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 shall not be applied to or incorporated into feedstocks, in-process materials, or processed materials.(11) End-product standards.(A) Facilities that compost municipal sewage sludge. For facilities that compost only municipal sewage sludge or compost municipal sewage sludge with any source-separated materials, the operator shall comply with the provisions of Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation) and shall not exceed the foreign matter criteria contained in §332.72(d)(2)(A) and (C) of this title (relating to Final Product Grades).(B) All other registered facilities. The operator shall meet compost testing requirements set forth in §332.71 of this title (relating to Sampling and Analysis Requirements for Final Product), final product grades set forth in §332.72 of this title, and label all materials that are sold or distributed as set forth in §332.74 of this title (relating to Compost Labelling Requirements).(12) Licensed municipal solid waste facility supervisor. The operator shall employ at least one licensed municipal solid waste supervisor who has completed a TCEQ-recognized or approved specialized compost training course. Supervisors of existing facilities who do not already hold a municipal solid waste facility supervisor license must obtain a license. A licensed municipal solid waste facility supervisor who has completed a TCEQ-recognized or approved specialized compost training course shall be on-site during the hours of operation.(13) Chemical release. The operator of a compost facility shall address the release of a chemical of concern from a compost facility to any environmental media under the requirements of Chapter 350 of this title (relating to Texas Risk Reduction Program) to perform the corrective action.</content><note type="source"><p>Source Note: The provisions of this §332.37 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective September 23, 1999, 24 TexReg 7417; amended to be effective January 8, 2004, 29 TexReg 140; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scC/s332.38"><num value="332.38">§332.38</num><heading>Records Requirements</heading><content>(a) Facilities that compost municipal sewage sludge. For facilities that compost only municipal sewage sludge or compost municipal sewage sludge with any source-separated materials, the operator shall comply with the provisions of Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation).(b) All other registered facilities.(1) The operator shall maintain records on-site, available for inspection by the commission, for a period consisting of the two most recent calendar years. The records shall consist of the following:(A) the facility registration obtained from the commission;(B) a log of abnormal events at the facility, including but not limited to, process disruptions, extended equipment failures, injuries, and weather damage; and(C) results of final product testing required by §332.71(j) of this title (relating to Sampling and Analysis Requirements for Final Product).(2) The operator shall maintain copies of the annual report on-site for the five most recent calendar years.</content><note type="source"><p>Source Note: The provisions of this §332.38 adopted to be effective November 29, 1995, 20 TexReg 9717.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c332/scD"><num value="D">SUBCHAPTER D</num><heading>OPERATIONS REQUIRING A PERMIT</heading><section identifier="/us/state/tx/tac/t30/p1/c332/scD/s332.41"><num value="332.41">§332.41</num><heading>Requirements and Application Processing for a Permit Facility</heading><content>(a) The following operations are subject to the requirements of this subchapter:(1) operations that compost mixed municipal solid waste not in accordance with §332.31 of this title (relating to Definition of and Requirements for Registered Facilities);(2) operations that add any amount of mixed municipal solid waste as a feedstock in the composting process; and(3) operations that commercially compost grease trap waste.(b) Requirements for permitted facilities. The operations listed in subsection (a) of this section are subject to the general requirements found in §332.4 of this title (relating to General Requirements), and the requirements set forth in this subchapter, the requirements set forth in Subchapters E - G of this chapter (relating to Source-Separated Recycling; Household Hazardous Waste Collection; and End-Product Standards), and the air quality requirements set forth in §332.8 of this title (relating to Air Quality Requirements).(c) Processing of application for a permitted facility. All permit applications are subject to the standards and requirements as set forth in Chapter 39, Subchapters H and I of this title (relating to Public Notice); Chapter 50, Subchapters E - G of this title (relating to Action on Applications and Other Authorizations); and Chapter 55, Subchapters D - F of this title (relating to Requests for Reconsideration and Contested Case Hearings; Public Comment). The requirements of this subsection supersede any inconsistent provisions in Chapter 39, Subchapter H of this title.</content><note type="source"><p>Source Note: The provisions of this §332.41 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective January 8, 2004, 29 TexReg 140; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scD/s332.42"><num value="332.42">§332.42</num><heading>Certification by Engineer, Ownership or Control of Land, and Inspection</heading><content>(a) Certification by licensed professional engineer. The operator shall obtain certification by a Texas-Licensed Professional Engineer that the facility has been constructed as designed and in general compliance with the regulations prior to accepting any feedstock at the facility that requires a permit. The operator shall maintain that certification on-site for inspection by the commission.(b) Ownership or control of property. The facility shall be located on property owned by the operator or the operator shall establish, using an affidavit form provided by the commission, signed by the owner and notarized, that the owner is aware of and consents to the operation prior to any receipt of feedstock or processing activities. A copy of the affidavit shall be kept on-site at all times.(c) Inspection of facility. Prior to the initial acceptance of any feedstocks, the facility shall be inspected by the agency to determine compliance with the permit.</content><note type="source"><p>Source Note: The provisions of this §332.42 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scD/s332.43"><num value="332.43">§332.43</num><heading>Required Forms, Applications, and Reports</heading><content>The operator shall submit all of the following.(1) Permit application form. The operator shall submit a permit application, available from the executive director, and prepared in accordance with the requirements of §332.47 of this title (relating to Permit Application Preparation).(2) Reports.(A) Final products.(i) Monthly reports. Facilities requiring permit must submit reports on final product testing to the executive director in compliance with §332.71(j)(1) of this title (relating to Sampling and Analysis Requirements for Final Product) on a monthly basis.(ii) Annual reports. The operator shall submit annual written reports. These reports shall at a minimum include input and output quantities, a description of the end-product distribution, and all results of any required laboratory testing. A copy of the annual report shall be kept on-site for a period of five years.(B) Received materials. All permitted facility operators are required to submit reports to the executive director covering the types and amounts of waste processed at the facility.(i) Quarterly reports. Each processing facility shall report to the executive director the information requested on the report form for the reporting period including the amount of source-separated material processed to compost or mulch product.(ii) Annual reports. Each processing facility shall report to the executive director a summary of the quarterly totals and yearly total, as well as the year-end status of the facility.(iii) Report form. The report shall be on a form furnished by the executive director or reproduced from a form furnished by the executive director or by an electronic form or format furnished by the executive director.(iv) Report information. In addition to a statement of the amount of waste received for processing, the report shall contain other information requested on the form, including the facility operator's name, address, and phone number; the permit number, permit application number; the facility type, size, and capacity; and other information the executive director may request.(v) Reporting units. The amount of waste received for processing shall be reported in tons or in cubic yards as received (compacted or uncompacted) at the gate. If accounting of the waste is recorded in cubic yards, then separate accounting must be made for waste that comes to the facility in open vehicles or without compaction, and waste that comes to the facility in compactor vehicles. If scales are not utilized and accounting of the waste received is in cubic yards, gallons, or drums then those volumetric units may be converted to tons for reporting purposes, using the conversion factors set forth in subparagraphs (I) and (II) of this clause.(I) General weight to volume conversion factors:(-a-) one ton = 2,000 pounds;(-b-) one gallon = 7.5 pounds (grease trap waste);(-c-) one gallon = 8.5 pounds (wastewater treatment plant sludge or septage);(-d-) one gallon = 9.0 pounds (grit trap waste); and(-e-) one drum = 55 gallons.(II) Volume to weight conversion factors for waste in transport vehicles:(-a-) one cubic yard = 400 pounds (no compaction);(-b-) one cubic yard = 666.66 pounds (medium compaction); and(-c-) one cubic yard = 800 pounds (heavy compaction).(vi) Use of population equivalent. In determining the amount of waste processed for disposal at a processing facility serving less than 5,000 people, the operator may use the number of tons calculated or derived from the population served by the facility in lieu of maintaining records of the waste deposited at the facility. The amount of waste shall be calculated on the basis of one ton per person per year. The report shall document the population served by the facility and reflect any changes since the previous report.(vii) Report due date. The required quarterly received materials report shall be submitted to the executive director not later than 20 days following the end of the fiscal quarter for which the report is applicable. The fiscal year begins on September 1 and concludes on August 31.(viii) Method of submission. The required report shall be delivered or mailed to the agency to the return address designated by the executive director in the billing statement distributed quarterly or shall be submitted electronically to the agency.(ix) Penalties. Failure of the facility or process operator to submit the required report by the due date shall be sufficient cause for the commission to revoke the permit and authorization to process of waste. The commission may assess interest penalties for late payment of fees and may also assess penalties in accordance with Texas Water Code, §7.051 (Administrative Penalty) or take any other action authorized by law to secure compliance.(3) Fees. Each operator of a facility that processes Municipal Solid Waste is required to pay a fee to the agency for all waste received for processing. Source-separated material processed at a composting or mulch processing facility, including a composting or mulch processing facility located at a permitted landfill, is exempt from the fee requirements set forth and described in this section. The agency will credit any fee payment due under this section for any material received and processed to compost or mulch product at the facility. Any compost or mulch product that is produced at a composting or mulch processing facility that is used in the operation of the facility or is disposed of in a landfill or used as landfill daily cover is not exempt from the fee.(A) Fee rates.(i) Tons. For waste reported in tons, the fee rate is $0.47 per ton received.(ii) Cubic yards (compacted). For waste reported in compacted cubic yards, the fee rate is $0.15 per cubic yard received.(iii) Cubic yards (uncompacted). For waste reported in uncompacted cubic yards, the fee rate is $0.095 cent per cubic yard received.(iv) If a facility operator chooses to report the amount of waste received utilizing the population equivalent method authorized in paragraph (2)(B)(vi) of this section, the fee shall be calculated by the executive director at an amount equal to $0.47 per ton.(B) Measurement options. The volume or weight reported on the quarterly received materials report must be consistent throughout the report, and it must be consistent with the total amount of the waste received by a processing facility at the gate (measured in tons or cubic yards, or determined by the population equivalent method specified in paragraph (2)(B)(vi) of this section). The weight or volume of the waste received for processing shall be determined prior to processing of the waste. The recommended method for measuring and reporting waste received at the gate is in tons. The operator must accurately measure and report the number of tons or cubic yards of waste received.(C) Fee calculation. The fee shall be calculated by the executive director using information obtained from the quarterly received materials report. The total tonnage or cubic yards reported to the executive director in the quarterly received materials report shall be derived from gate tickets (weight or volume) or invoices, except in the case of operators who are authorized to report utilizing the population equivalent method in paragraph (2)(B)(vi) of this section, and records of recycled materials or any other information deemed relevant by the executive director. A billing statement will be generated quarterly by the executive director and forwarded to the applicable permittee or a designated representative.(D) Fee due date. All solid waste fees shall be due within 30 days of the date the payment is requested.(E) Method of payment. The required fee shall be submitted in the form of a check or money order made payable to the Texas Commission on Environmental Quality and delivered or mailed to the return address designated by the executive director in the billing statement distributed quarterly.(F) Penalties. Failure of the facility or process operator to submit the required fee payment by the due date shall be sufficient cause for the commission to revoke the permit and authorization to process waste. The commission may assess interest penalties for late payment of fees and may also assess penalties in accordance with Texas Water Code, §7.051, or take any other action authorized by law to secure compliance.(G) Exemptions. A fee will not be charged on solid waste resulting from a public entity's effort to protect the public health and safety of the community from the effects of a natural or man-made disaster or from structures that have been contributing to drug trafficking or other crimes if the disposal facility at which that solid waste is offered for disposal has donated to a municipality, county, or other political subdivision the cost of disposing of that waste.(4) Engineer's appointment. An engineer's appointment which consists of a letter from the applicant to the Executive Director identifying the engineer responsible for the submission of the plan, specifications, and any other technical data to be evaluated by the commission regarding the project.</content><note type="source"><p>Source Note: The provisions of this §332.43 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective September 12, 2002, 27 TexReg 8593; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scD/s332.44"><num value="332.44">§332.44</num><heading>Location Standards</heading><content>Facilities shall meet all of the following locational criteria.(1) One hundred-year floodplain. The facility shall be located outside of the 100-year floodplain unless the applicant can demonstrate that the facility is designed and will operate to prevent washout during a 100-year storm event, or obtains a Conditional Letter of Map Amendment (CLOMA) from the Federal Emergency Management Administration (FEMA) Administrator.(2) Drainage. The facility shall not significantly alter existing drainage patterns.(3) Wetlands. The facility shall not be located in wetlands.(4) Water wells. The facility shall be located at least 500 feet from all public water wells and at least 150 feet from private water wells.(5) Surface water. The facility shall be located at least 100 feet from creeks, rivers, intermittent streams, lakes, bayous, bays, estuaries, or other surface waters in the state.(6) Setback distance from facility boundary. The setback distance from the facility boundary to the areas for receiving, processing, or storing feedstock or final product shall be at least 50 feet.(7) Edwards Aquifer Recharge Zone. If located over the Recharge Zone of the Edwards Aquifer, a facility is subject to Chapter 213 of this title (relating to Edwards Aquifer). The Edwards Aquifer Recharge Zone is specifically that area delineated on maps in the office of the executive director.</content><note type="source"><p>Source Note: The provisions of this §332.44 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scD/s332.45"><num value="332.45">§332.45</num><heading>Operational Requirements</heading><content>The operation of the facility shall comply with all of the following operational requirements.(1) Protection of surface water. The facility shall be constructed, maintained, and operated to manage run-on and run-off during a 25-year, 24-hour rainfall event and shall prevent discharge into waters in the state of feedstock material, including but not limited to, in-process and/or processed materials. Any waters coming into contact with feedstock, in-process, and processed materials shall be considered leachate. Leachate shall be contained in retention facilities until it is reapplied on piles of feedstock, in-process, or unprocessed materials, or it is disposed or treated. The retention facilities shall be lined and the liner shall be constructed in compliance with §332.47(6)(C) of this title (relating to Permit Application Preparation). Leachate may be treated and processed at an authorized facility or as authorized by a National Pollutant Discharge Elimination System permit. The use of leachate in any processing shall be conducted in a manner that does not contaminate the final product.(2) Protection of groundwater. The facility shall be constructed, maintained, and operated to protect groundwater. As a minimum, groundwater protection shall be in accordance with the provisions of §332.47(6)(C) of this title.(3) Unauthorized and prohibited materials. Delivery of unauthorized or prohibited materials shall be prevented. As a minimum there shall be one employee on-site at all times inspecting each delivery of feedstock to ensure there is no unauthorized or prohibited material incorporated into the feedstock.(4) Access. Access to the facility shall be controlled to prevent unauthorized disposal of unauthorized and prohibited materials and scavenging. The facility shall be completely fenced with a gate that is locked when the facility is closed.(5) Nuisance conditions. The facility shall be sited and operated in such a manner as to prevent the potential of nuisance conditions and fire hazards. Where nuisance conditions or fire hazards exist, the operator will immediately take action to abate such nuisances.(6) Aerobic composting required. The facility shall utilize functionally aerobic composting methods, although an anaerobic composting phase may be utilized in the early stages of processing if it is followed by a period of functionally aerobic composting.(7) Site sign. The facility shall have a sign at the entrance indicating the type of facility, the permit number, hours of operation, and the allowable feedstocks.(8) Access road. The facility access road shall be an all-weather road.(9) Amendment required for significant changes. The operator shall submit and obtain a permit amendment from the commission in compliance with Chapter 305 of this title (relating to Consolidated Permits) before changing the processing method or other significant changes to the original permit application.(10) Prohibited substances. Fungicides, herbicides, insecticides, or other pesticides that contain constituents listed in 40 Code of Federal Regulations Part 261, Appendix VIII-Hazardous Constituents or on the Hazardous Substance List as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) shall not be applied to or incorporated into feedstocks, in-process materials, or processed materials.(11) End-product standards. The operator shall meet compost testing requirements set forth in §332.71 of this title (relating to Sampling and Analysis Requirements for Final Product), final product grades set forth in §332.72 of this title (relating to Final Product Grades), and label all materials that are sold or distributed as set forth in §332.74 of this title (relating to Final Product Labelling Requirements).(12) Licensed municipal solid waste facility supervisor. The operator shall employ at least one licensed municipal solid waste supervisor who has completed a TCEQ-recognized or approved specialized compost training course. Supervisors of existing facilities who do not already hold a municipal solid waste facility supervisor license must obtain a license. A licensed municipal solid waste facility supervisor who has completed a TCEQ-recognized or approved specialized compost training course shall be on-site during the hours of operation.(13) The operator of a compost facility shall address the release of a chemical of concern from a compost facility to any environmental media under the requirements of Chapter 350 of this title (relating to Texas Risk Reduction Program) to perform the corrective action.</content><note type="source"><p>Source Note: The provisions of this §332.45 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective September 23, 1999, 24 TexReg 7417; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scD/s332.46"><num value="332.46">§332.46</num><heading>Records Requirements</heading><content>(a) Records. The operator shall maintain records on-site, available for inspection by the commission, for a period consisting of the two most recent calendar years. The records shall consist of the following:(1) the facility operating permit obtained from the commission;(2) a log of abnormal events at the facility, including but not limited to, process disruptions, extended equipment failures, injuries, and weather damage; and(3) results of final product testing required by §332.71(j) of this title (relating to Sampling and Analysis Requirements for Final Product).(b) Copies. The operator shall maintain copies of the annual report on-site for the five most recent calendar years.</content><note type="source"><p>Source Note: The provisions of this §332.46 adopted to be effective November 29, 1995, 20 TexReg 9717.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scD/s332.47"><num value="332.47">§332.47</num><heading>Permit Application Preparation</heading><content>To assist the commission in evaluating the technical merits of a compost facility, an applicant subject to this chapter shall submit a site development plan to the commission along with a compost permit application form provided by the executive director. The site development plan must be sealed by a Texas-licensed professional engineer in accordance with the provisions of 22 TAC §137.33 (relating to Engineers' Seals). The site development plan must contain all of the following information.(1) Title page. A title page shall show the name of the project, the county (and city if applicable) in which the proposed project is located, the name of the applicant, the name of the engineer, the date the application was prepared, and the latest date the application was revised.(2) Table of contents. A table of contents shall be included which lists the main sections of the plan, any requested variances, and page numbers.(3) Engineer's appointment. The site development plan shall contain an engineer's appointment, which consists of a letter from the applicant to the executive director identifying the consulting engineering firm responsible for the submission of the plan, specifications, and any other technical data to be evaluated by the commission regarding the project.(4) Land use. To assist the executive director in evaluating the impact of the facility on the surrounding area, the applicant shall provide the following:(A) a description of the zoning at the facility and within one mile of the facility. If the facility requires approval as a nonconforming use or a special use permit from the local government having jurisdiction, a copy of such approval shall be submitted with the application;(B) a description of the character of the surrounding land uses within one mile of the proposed facility;(C) proximity to residences and other uses (e.g., schools, churches, cemeteries, historic structures, historic sites, archaeologically significant sites, sites having exceptional aesthetic quality, parks, recreational sites, recreational facilities, licensed day care centers, etc.). Give the approximate number of residences and business establishments within one mile of the proposed facility including the distances and directions to the nearest residences and businesses;(D) a discussion that shows the facility is compatible with the surrounding land uses; and(E) a constructed land use map showing the land use, zoning, residences, businesses, schools, churches, cemeteries, historic structures, historic sites, archaeologically significant sites, sites having exceptional aesthetic quality, licensed day care centers, parks, recreational sites and recreational facilities within one mile of the facility, and wells within 500 feet of the facility.(5) Access. To assist the executive director in evaluating the impact of the facility on the surrounding roadway system, the applicant shall provide the following:(A) data on the roadways within one mile of the facility used to access the facility. The data shall include dimensions, surfacing, general condition, capacity, and load limits;(B) data on the volume of vehicular traffic on access roads within one mile of the proposed facility. The applicant shall include both existing and projected traffic during the life of the facility (for projected include both traffic generated by the facility and anticipated increase without the facility);(C) an analysis of the impact the facility will have on the area roadway system, including a discussion on any mitigating measures (turning lanes, roadway improvements, intersection improvements, etc.) proposed with the project; and(D) an access roadway map showing all area roadways within a mile of the facility. The data and analysis required in subparagraphs (A) - (C) of this paragraph shall be keyed to this map.(6) Facility development. To assist the executive director in evaluating the impact of the facility on the environment, the applicant shall provide the following.(A) Surface water protection plan. The surface water protection plan shall be prepared by a licensed professional engineer. At a minimum, the applicant shall provide all of the following:(i) a design for a run-on control system capable of preventing flow onto the facility during the peak discharge from at least a 25-year, 24-hour rainfall event;(ii) a design for a runoff management system to collect and control at least the peak discharge from the facility generated by a 25-year, 24-hour rainfall event;(iii) a design for a contaminated water collection system to collect and contain all leachate. If the design uses leachate for any processing, the applicant shall clearly demonstrate that such use will not result in contamination of the final product; and(iv) drainage calculations as follows.(I) Calculations for areas of 200 acres or less shall follow the rational method as specified in the Texas Department of Transportation Bridge Division Hydraulic Manual.(II) Calculations for discharges from areas greater than 200 acres shall be computed by using United States Geological Survey (USGS) hydraulic equations compiled by the USGS and the Texas Department of Transportation Bridge Division Hydraulic Manual, the HEC-1 and HEC-2 computer programs developed through the Hydrologic Engineering Center of the United States Army Corps of Engineers, or an equivalent or better method approved by the executive director.(III) Calculations for sizing containment facilities for leachate shall be determined by a mass balance based on the facility's proposed leachate disposal method.(IV) Temporary and permanent erosion control measures shall be discussed;(v) drainage maps and drainage plans shall be provided as follows:(I) an off-site topographic drainage map showing all areas that contribute to the facility's run-on. The map shall delineate the drainage basins and sub-basins, show the direction of flow, time of concentration, basin area, rainfall intensity, and flow rate. This map shall also show all creeks, rivers, intermittent streams, lakes, bayous, bays, estuaries, arroyos, and other surface waters in the state;(II) a pre-construction on-site drainage map. The map shall delineate the drainage basins and sub-basins, show the direction of flow, time of concentration, basin area, rainfall intensity and flow rate;(III) a post-construction on-site drainage map. The map shall delineate the drainage basins and sub-basins, show the direction of flow, time of concentration, basin area, rainfall intensity, and flow rate;(IV) a drainage facilities map. The map shall show all proposed drainage facilities (ditches, ponds, piping, inlets, outfalls, structures, etc.) and design parameters (velocities, cross-section areas, grades, flowline elevations, etc.). Complete cross-sections of all ditches and ponds shall be included;(V) a profile drawing. The drawing shall include profiles of all ditches and pipes. Profiles shall include top of bank, flowline, hydraulic grade, and existing groundline. Ditches and swells shall have a minimum of one foot of freeboard;(VI) a floodplain and wetlands map. The map shall show the location and lateral extent of all floodplains and wetlands on the site and on lands within 500 feet of the site; and(VII) an erosion control map which indicates placement of erosion control features on the site.(B) Geologic/hydrogeologic report. The geologic/hydrogeologic report shall be prepared by an engineer or qualified geologist/hydrogeologist. The applicant shall include discussion and information on all of the following:(i) a description of the regional geology of the area. This section shall include:(I) a geologic map of the region with text describing the stratigraphy and lithology of the map units. An appropriate section of a published map series such as the Geologic Atlas of Texas prepared by The University of Texas at Austin's Bureau of Economic Geology is acceptable;(II) a description of the generalized stratigraphic column in the facility area from the base of the lowermost aquifer capable of providing usable groundwater, or from a depth of 1,000 feet, whichever is less, to the land surface. The geologic age, lithology, variation in lithology, thickness, depth geometry, hydraulic conductivity, and depositional history of each geologic unit should be described based upon available geologic information;(ii) a description of the geologic processes active in the vicinity of the facility. This description shall include an identification of any faults and/or subsidence in the area of the facility;(iii) a description of the regional aquifers in the vicinity of the facility based upon published and open-file sources. The section shall provide:(I) aquifer names and their association with geologic units described in clause (i) of this subparagraph;(II) a description of the composition of the aquifer(s); (III) a description of the hydraulic properties of the aquifer(s);(IV) identification of areas of recharge to the aquifers within five miles of the site; and(V) the present use of groundwater withdrawn from aquifers in the vicinity of the facility;(iv) subsurface investigation report. This report shall describe all borings drilled on site to test soils and characterize groundwater and shall include a site map drawn to scale showing the surveyed locations and elevations of the boring. Boring logs shall include a detailed description of materials encountered including any discontinuities such as fractures, fissures, slickensides, lenses, or seams. Each boring shall be presented in the form of a log that contains, at a minimum, the boring number; surface elevation and location coordinates; and a columnar section with text showing the elevation of all contacts between soil and rock layers description of each layer using the Unified Soil Classification, color, degree of compaction, and moisture content. A key explaining the symbols used on the boring logs and the classification terminology for soil type, consistency, and structure shall be provided.(I) A sufficient number of borings shall be performed to establish subsurface stratigraphy and to determine geotechnical properties of the soils and rocks beneath the facility. The number of borings necessary can only be determined after the general characteristics of a site are analyzed and will vary depending on the heterogeneity of subsurface materials. The minimum number of borings required for a site shall be three for sites of five acres or less, and for sites larger than five acres the required number of borings shall be three borings plus one boring for each additional five acres or fraction thereof. The boring plan shall be approved by the executive director prior to performing the bores.(II) Borings shall be sufficiently deep to allow identification of the uppermost aquifer and underlying hydraulically interconnected aquifers. Boring shall penetrate the uppermost aquifer and all deeper hydraulically interconnected aquifers and be deep enough to identify the aquiclude at the lower boundary. All the borings shall be at least 30 feet deeper than the elevation of the deepest excavation on site and in no case shall be less than 30 feet below the lowest elevation on site. If no aquifers exist within 50 feet of the elevation of the deepest excavation, at least one test bore shall be drilled to the top of the first perennial aquifer beneath the site. In areas where it can be demonstrated that the uppermost aquifer is more than 300 feet below the deepest excavation, the applicant shall provide the demonstration to the executive director and the executive director shall have the authority to waive the requirement for the deep bore.(III) All borings shall be conducted in accordance with established field exploration methods.(IV) Installation, abandonment, and plugging of the boring shall be in accordance with the rules of the commission.(V) The applicant shall prepare cross-sections utilizing the information from the boring and depicting the generalized strata at the facility.(VI) The report shall contain a summary of the investigator's interpretations of the subsurface stratigraphy based upon the field investigation;(v) groundwater investigation report. This report shall establish and present the groundwater flow characteristics at the site which shall include groundwater elevation, gradient, and direction of flow. The flow characteristics and most likely pathway(s) for pollutant migration shall be discussed in a narrative format and shown graphically on a piezometric contour map. The groundwater data shall be collected from piezometers installed at the site. The minimum number of piezometers required for the site shall be three for sites of five acres or less, for sites greater than five acres the total number of piezometer required shall be three piezometer plus one piezometer for each additional five acres or fraction thereof.(C) Groundwater protection plan. The application shall demonstrate that the facility is designed so as not to contaminate the groundwater and so as to protect the existing groundwater quality from degradation. For the purposes of these sections, protection of the groundwater includes the protection of perched water or shallow surface infiltration. As a minimum, groundwater protection shall consist of all of the following.(i) Liner system. All feedstock receiving, mixing, composting, post-processing, screening, and storage areas shall be located on a surface that is adequately lined to control seepage. The lined surface shall be covered with a material designed to withstand normal traffic from the composting operations. At a minimum, the lined surface shall consist of soil, synthetic, or an alternative material that is equivalent to two feet of compacted clay with a hydraulic conductivity of 1 x 10-7 centimeters per second or less.(I) Soil liners shall have more than 30% passing a number 200 sieve, have a liquid limit greater than 30%, and a plasticity index greater than 15.(II) Synthetic liners shall be a membrane with a minimum thickness of 20 mils.(III) Alternative designs shall utilize an impermeable liner (such as concrete).(ii) Groundwater monitor system. The groundwater monitoring system shall be designed and installed such that the system will reasonably assure detection of any contamination of the groundwater before it migrates beyond the boundaries of the site. The monitoring system shall be designed based upon the information obtained in the "Groundwater investigation report" required by subparagraph (B)(v) of this paragraph. (I) Details of monitor well construction and placement of monitor wells shall be shown on the site plan.(II) A groundwater sampling program shall provide four background groundwater samples of all monitor wells within 24 months from the date of the issuance of the permit. The background levels shall be established from samples collected from each well at least once during each of the four calendar quarters: January - March; April - June; July - September; and October - December. Samples from any monitor well shall not be collected for at least 45 days following collection of a previous sample, unless a replacement sample is necessary. At least one sample per well shall be collected and submitted to a laboratory for analysis within 60 days of permit issuance for existing or previously registered operations, or prior to accepting any material for processing at a new facility. Background samples shall be analyzed for the parameters as follows:(-a-) heavy metals, arsenic, copper, mercury, barium, iron, selenium, cadmium, lead, chromium, and zinc;(-b-) other parameters: calcium, magnesium, sodium, carbonate, bicarbonate, sulphate, fluoride, nitrate (as N), total dissolved solids, phenolphthalein alkalinity as CaCO3 , alkalinity as CaCO3 , hardness as CaCO3 , pH, specific conductance, anion-cation balance, groundwater elevation (measured in Mean Sea Level (MSL)), and total organic carbon (TOC) (four replicates/sample); and(-c-) after background values have been determined, the following indicators shall be measured at a minimum of 12-month intervals: TOC (four replicates), iron, manganese, pH, chloride, groundwater elevation (measured in MSL), and total dissolved solids. After completion of the analysis, an original and two copies shall be sent to the executive director and a copy shall be maintained on site.(-d-) The executive director may waive the requirement to monitor for any of the constituents listed in items (-a-) - (-c-) of this subclause in a permit, if it can be documented that these constituents are not reasonably expected to be in or derived from the bulking or feedstock materials. A change to the monitoring requirements may be incorporated into a permit when issued or as a modification under §305.70 of this title (relating to Municipal Solid Waste Permit and Registration Modifications).(-e-) The executive director may establish an alternative list of constituents for a permit, if the alternative constituents provide a reliable indication of a release to the groundwater. The executive director may also add inorganic or organic constituents to those to be tested if they are reasonably expected to be in or derived from the bulking or feedstock materials. A change to the monitoring requirements may be incorporated into a permit when issued or as a modification under §305.70 of this title.(D) Facility plan and facility layout. The facility plan and facility layout must be prepared by a licensed professional engineer. All proposed facilities, structures, and improvements must be clearly shown and annotated on this drawing. The plan must be drawn to standard engineering scale. Any necessary details or sections must be included. As a minimum, the plan must show property boundaries, fencing, internal roadways, tipping area, processing area, post-processing area, facility office, sanitary facilities, potable water facilities, storage areas, etc. If phasing is proposed for the facility, a separate facility plan for each phase is required.(E) Process description. The process description shall be composed of a descriptive narrative along with a process diagram. The process description shall include all of the following.(i) Feedstock identification. The applicant shall prepare a list of the materials intended for processing along with the anticipated volume to be processed. This section shall also contain an estimate of the daily quantity of material to be processed at the facility along with a description of the proposed process of screening for unauthorized materials.(ii) Tipping process. Indicate what happens to the feedstock material from the point it enters the gate. Indicate how the material is handled in the tipping area, how long it remains in the tipping area, what equipment is used, how the material is evacuated from the tipping area, at what interval the tipping area is cleaned, and the process used to clean the tipping area.(iii) Process. Indicate what happens to the material as it leaves the tipping area. Indicate how the material is incorporated into the process and what process or processes are used until it goes to the post-processing area. The narrative shall include water addition, processing rates, equipment, energy and mass balance calculations, and process monitoring method.(iv) Post-processing. Provide a complete narrative on the post-processing, including post-processing times, identification and segregation of product, storage of product, quality assurance, and quality control.(v) Product distribution. Provide a complete narrative on product distribution to include items such as: end product quantities, qualities, intended use, packaging, labeling, loading, and tracking bulk material.(vi) Process diagram. Present a process diagram that displays graphically the narrative generated in response to clauses (i) - (v) of this subparagraph.(7) Site operating plan. This document is to provide guidance from the design engineer to site management and operating personnel in sufficient detail to enable them to conduct day-to-day operations in a manner consistent with the engineer's design. As a minimum, the site operating plan shall include specific guidance or instructions on all of the following:(A) the minimum number of personnel and their functions to be provided by the site operator in order to have adequate capability to conduct the operation in conformance with the design and operational standards;(B) the minimum number and operational capacity of each type of equipment to be provided by the site operator in order to have adequate capability to conduct the operation in conformance with the design and operational standards;(C) security, site access control, traffic control, and safety;(D) control of dumping within designated areas and screening for unprocessable or unauthorized material;(E) fire prevention and control plan that shall comply with provisions of the local fire code, provision for fire-fighting equipment, and special training requirements for fire-fighting personnel; (F) control of windblown material;(G) vector control;(H) quality assurance and quality control. As a minimum, the applicant shall provide testing and assurance in accordance with the provisions of §332.71 of this title (relating to Sampling and Analysis Requirements for Final Product);(I) control of airborne emissions;(J) minimizing odors;(K) equipment failures and alternative disposal and storage plans in the event of equipment failure; and(L) a description of the intended final use of materials. (8) Legal description of the facility. The applicant shall submit an official metes and bounds description and plat of the proposed facility. The description and plat shall be prepared and sealed by a registered surveyor.(9) Financial assurance. The applicant shall prepare a closure plan acceptable to the executive director and provide evidence of financial assurance to the commission for the cost of closure. The closure plan, at a minimum, shall include evacuation of all material on site (feedstock, in process, and processed) to an authorized facility and disinfection of all leachate handling facilities, tipping area, processing area, and post-processing area and shall be based on the worst case closure scenario for the facility, including the assumption that all storage and processing areas are filled to capacity. Financial assurance mechanisms must be established and maintained in accordance with Chapter 37, Subchapter J of this title (relating to Financial Assurance for Recycling Facilities). These mechanisms shall be prepared on forms approved by the executive director and shall be submitted to the commission 60 days prior to the receiving of any materials for processing, or within 60 days of a permit being issued for facilities operating under an existing registration.(10) Source-separated recycling and household hazardous waste collection. The applicant shall submit a plan to comply with the requirements of Subchapters E and F of this chapter (relating to Source-Separated Recycling; and Household Hazardous Waste Collection). (11) Landowner list. The applicant shall include a list of landowners, residents, and businesses within 1/2 mile of the facility boundaries along with an appropriately scaled map locating property owned by the landowners.</content><note type="source"><p>Source Note: The provisions of this §332.47 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective December 30, 1996, 21 TexReg 12304; amended to be effective January 8, 2004, 29 TexReg 140; amended to be effective November 4, 2004, 29 TexReg 10130; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c332/scE"><num value="E">SUBCHAPTER E</num><heading>SOURCE-SEPARATED RECYCLING</heading><section identifier="/us/state/tx/tac/t30/p1/c332/scE/s332.51"><num value="332.51">§332.51</num><heading>General Requirements and Applicability</heading><content>(a) A permittee shall not accept mixed municipal solid waste from a governmental unit for composting purposes until the commission determines that residents have reasonable access to source-separated recycling programs.(b) Materials collected or accepted pursuant to this subchapter shall not be placed into the mixed municipal solid waste composting or mixed waste handling operations at a mixed municipal solid waste composting facility, but may be processed separately at such a facility for recycling.(c) For purposes of this subchapter, recyclable materials that are collected separately from mixed municipal solid waste are considered source-separated recyclable materials. Recyclable materials collected in separate containers or bags and commingled with mixed municipal solid waste shall be considered to have been collected separately unless the bags or containers break during the time the materials are commingled.</content><note type="source"><p>Source Note: The provisions of this §332.51 adopted to be effective November 29, 1995, 20 TexReg 9717.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scE/s332.52"><num value="332.52">§332.52</num><heading>Demonstration To Provide Reasonable Access for Residents</heading><content>The permit applicant shall provide demonstration of reasonable access to source-separated recycling programs using any one of the four options presented in paragraphs (1)-(4) of this section.(1) Option 1. At least one collection center for recycling of materials is provided for each mixed municipal solid waste composting facility and at least one collection center for each transfer station from which wastes are delivered to such composting facilities. These collection centers may be located at the composting facility or transfer station or at locations more convenient to the affected residents. "More convenient" means at a shorter average road distance from the residences served by the center, or in a central or high traffic location in the most populated municipality served by the center.(2) Option 2. Curbside recycling.(A) For each such municipality with an affected population less than 15,000, single-family homes shall be provided residential curbside recycling at least twice per month for aluminum, steel, and bimetal cans and, at a minimum, three of the materials listed in accordance with §332.53 of this title (relating to List of Recyclable Materials); or(B) For each such municipality with an affected population of 15,000 or more, single-family homes shall be provided weekly residential curbside recycling of aluminum, steel, and bimetal cans and, at a minimum, four of the materials listed in accordance with §332.53 of this title (relating to List of Recyclable Materials).(3) Option 3. The permit applicant may submit evidence that the method of reasonable access accomplishes a degree of recovery such that at least 10% of the waste generated by the affected residents is captured for recycling.(4) Option 4. The permit applicant may present an alternative plan for providing reasonable access to residents. The commission will evaluate alternative plans on a case-by-case basis. At a minimum, the plan shall present the following information:(A) A description of the residential service areas, and their respective governmental units, from which mixed municipal solid waste is proposed to be accepted; and(B) A description of the residential source-separated recycling programs and how these programs provide reasonable access.</content><note type="source"><p>Source Note: The provisions of this §332.52 adopted to be effective November 29, 1995, 20 TexReg 9717.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scE/s332.53"><num value="332.53">§332.53</num><heading>List of Recyclable Materials</heading><content>The executive director shall establish a list of recyclable materials of which there is an established market for the processing and use of such materials, and shall make the list available to the public. The executive director may revise the list if market factors change.</content><note type="source"><p>Source Note: The provisions of this §332.53 adopted to be effective November 29, 1995, 20 TexReg 9717.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c332/scF"><num value="F">SUBCHAPTER F</num><heading>HOUSEHOLD HAZARDOUS WASTE COLLECTION</heading><section identifier="/us/state/tx/tac/t30/p1/c332/scF/s332.61"><num value="332.61">§332.61</num><heading>General Requirements and Applicability</heading><content>(a) A compost permittee shall not accept mixed municipal solid waste from a governmental entity until the commission determines that residents in that service area have reasonable access to household hazardous waste collection programs.(b) Materials collected or accepted pursuant to this subchapter shall not be placed into the mixed municipal solid waste composting or mixed waste handling operations at a mixed municipal solid waste composting facility, but may be processed separately at such a facility for recycling.(c) Any person who intends to conduct a collection event or intends to operate a permanent collection center shall comply with the requirements of Chapter 335, Subchapter N of this title (relating to Household Hazardous Wastes).</content><note type="source"><p>Source Note: The provisions of this §332.61 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scF/s332.62"><num value="332.62">§332.62</num><heading>Demonstration To Provide Reasonable Access for Residents</heading><content>(a) The permit applicant shall provide demonstration of reasonable access to household hazardous waste collection using either Option 1 or Option 2.(1) Option 1. A permit applicant shall provide one of the following alternatives for the collection of household hazardous wastes based upon population.(A) A permittee with a facility in a service area with a population less than 100,000 shall provide one permanent collection site with a minimum of 12 hours per year of access outside of regular business hours or semiannual collections each with a minimum of six hours continuous periods of access outside of regular business hours.(B) A permittee with a facility in a service area with a population between 100,000 and 500,000 shall provide one permanent collection site with a minimum of 36 hours per year of access outside of regular business hours or six collections each with a minimum of six hours continuous periods of access outside of regular business hours.(C) A permittee with a facility in a service area with a population between 500,000 and 1.0 million shall provide one permanent collection site with a minimum of 48 hours per year of access outside of regular business hours or eight collections each with a minimum of six hours continuous periods of access outside of regular business hours.(D) A permittee with a facility in a service area with a population over 1.0 million shall provide one permanent collection site with a minimum of 96 hours per year of access outside of regular business hours or 16 collections each with a minimum of six hours continuous periods of access outside of regular business hours and at locations other than the permitted site that increase reasonable public access to household hazardous waste collection.(2) Option 2. Alternative plan for providing reasonable access. The permit applicant may present an alternative plan for providing reasonable access to residents. The commission will evaluate alternative plans on a case-by-case basis. At a minimum, the plan shall present the following information:(A) a description of the residential service areas, and their respective governmental units, from which mixed municipal solid waste is proposed to be accepted; and(B) a description of the household hazardous waste collection program and how the program provides reasonable access.(b) The time of operation outside of business hours may be changed with executive director's approval.(c) For purposes of this section, "business hours" means 8:00 a.m. to 5:00 p.m., Monday through Friday. "Attended" means, at minimum, that a volunteer or employee is present at the site providing educational materials and information to users of the center, guiding them in the proper use of the center, and answering their questions.(d) Site Managers shall be trained in the 40-hour OSHA Hazardous Waste Operation and Emergency Response Course and have annual eight-hour refresher course. All volunteers and employees attending the site shall be trained in appropriate site safety and job duties prior to working on the site.</content><note type="source"><p>Source Note: The provisions of this §332.62 adopted to be effective November 29, 1995, 20 TexReg 9717.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scF/s332.63"><num value="332.63">§332.63</num><heading>Materials To Be Accepted</heading><content>Household hazardous waste collection programs required under this subchapter shall accept household hazardous waste as defined in §335.402 of this title (relating to Definitions).</content><note type="source"><p>Source Note: The provisions of this §332.63 adopted to be effective November 29, 1995, 20 TexReg 9717.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scF/s332.64"><num value="332.64">§332.64</num><heading>Public Education</heading><content>(a) A written or more effective notice or combination of both that is reasonably designed to reach each household affected by this subchapter shall be distributed in a timely manner to enable any interested resident to participate in each collection opportunity.(b) The notice shall explain the following:(1) the benefits of participating in the collection;(2) the opportunities available pursuant to this subchapter and through other means (such as the lead-acid battery trade-in program);(3) the materials that can be brought for safe disposal under this program;(4) the proper preparation of the materials for this program; and(5) a telephone number at which more information about the services can be obtained.(c) Attendants at each site shall provide educational materials with guidance for reducing and properly handling household hazardous materials and for the use of less hazardous alternatives.</content><note type="source"><p>Source Note: The provisions of this §332.64 adopted to be effective November 29, 1995, 20 TexReg 9717.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c332/scG"><num value="G">SUBCHAPTER G</num><heading>END-PRODUCT STANDARDS</heading><section identifier="/us/state/tx/tac/t30/p1/c332/scG/s332.71"><num value="332.71">§332.71</num><heading>Sampling and Analysis Requirements for Final Product</heading><content>(a) Applicability. Facilities that receive a registration or permit under this chapter are required to test final product in accordance with this section. Final product derived from municipal sewage sludge at registered facilities is not subject to the requirements of this section but must comply with the requirements of Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation).(b) Analytical methods. Facilities that use analytical methods to characterize their final product must use methods described in the following publications.(1) Chemical and physical analysis shall utilize:(A) "Test Methods for the Evaluation of Solid Waste, Physical/Chemical Methods" (SW-846);(B) "Methods for Chemical Analysis of Water and Wastes" (EPA-600); or(C) "Recommended Test Methods for the Examination of Composts and Composting" (Compost Council, 1995).(2) Analysis of pathogens shall utilize "Standard Methods for the Examination of Water and Wastewater" (Water Pollution Control Federation, latest edition).(3) Analysis for foreign matter shall utilize "Recommended Test Methods for the Examination of Composts and Composting" (Composting Council, 1995).(4) Analysis for salinity and pH shall utilize NCR (North Central Regional) Method 14 for Saturated Media Extract (SME) Method contained in "Recommended Test Procedure for Greenhouse Growth Media" North Central Regional Publication Number 221 (Revised), and "Recommended Chemical Soil Test Procedures" Bulletin Number 49 (Revised), October 1988, pages 34-37.(5) Analysis of total, fixed and volatile solids shall utilize Method 2540 G (Total, Fixed, and Volatile Solids in Solid and Semi-solid Samples) as described in "Standard Methods for the Examination of Water and Wastewater" (Water Pollution Control Federation, latest edition).(6) Analysis for maturity shall utilize the reduction of organic matter (ROM) calculation method, as described in the agency "Quality Assurance Project Plan" (QAPP) or an agency approved Quality Assurance/Quality Control (QAQC) plan during the first 18 months of a facility's operation. Reduction in organic matter is calculated by measuring the volatile solids content at two points in the composting process: when compost feedstocks are initially mixed and when the compost is sampled for end-product testing for total metals and Polychlorinated biphenyls (PCBs). For purposes of compost maturity analysis, the effect of the addition and removal of volatile solids and fixed solids to the compost shall be included in the ROM calculation procedure. After the completion of the maturity testing protocol described in subsection (d) of this section, the facility QAQC plan, or 18 months, whichever comes first, the method recommended in the protocol and approved by the agency shall be utilized.(c) Sample collection. Sample collection, preservation, and analysis shall assure valid and representative results pursuant to an agency-approved QAQC plan.(d) Maturity Testing Protocol.(1) A maturity testing protocol shall be described in the facility QAQC. The protocol shall consist of the ROM method or a comparison of the interim ROM method to a minimum of three test methods with one test method selected from each of subparagraphs (A), (B), and (C) of this paragraph, together with any method in subparagraph (D) of this paragraph.(A) Chemical analyses:(i) carbon/nitrogen ratio;(ii) water soluble ions;(iii) water soluble organic matter;(iv) cation exchange capacity;(v) electrical conductivity;(vi) crude fiber analysis;(vii) humification analysis; or(viii) ratios of the above measurements.(B) Physical analyses.(i) Dewar self-heating; or(ii) color.(C) Respiration analyses:(i) CO2; or(ii) O2.(D) Other test methods proposed in the facility QAQC plan and approved by the agency.(2) The test methods used in the maturity test protocol shall be based on methodologies published in peer reviewed scientific journals, the publication entitled "Recommended Test Methods for the Examination of Composts and Composting" (Compost Council, 1995), or other methods as approved by the agency.(3) The completed maturity testing protocol shall lead to a recommended maturity testing method(s) capable of classifying compost into maturity grades described in §332.72 of this title (relating to Final Product Grades) and identifying materials which are stable but not mature. The maturity test protocol shall address seasonal variations in compost feedstock and shall be completed within 18 months of the start of a new compost feedstock mixture.(4) The results of the protocol and recommendations shall be submitted to the agency for review and approval. The basis of the agency review and approval shall be the demonstration that the recommended method adequately classifies compost into maturity classes. The purpose of the agency review and approval is not intended to provide detailed guidance to end users about the agricultural and horticultural compost uses.(5) The compost maturity protocol does not need to be repeated unless a significantly new compost feedstock recipe is utilized.(e) Documentation.(1) Owners or operators of permitted or registered facilities shall record and maintain all of the following information regarding their activities of operation for three years after the final product is shipped off site or upon site closure:(A) batch numbers identifying the final product sampling batch;(B) the quantities, types, and sources of feedstocks received and the dates received;(C) the quantity and final product grade assigned described in §332.72 of this title;(D) the date of sampling; and(E) all analytical data used to characterize the final product, including laboratory quality assurance/quality control data.(2) The following records shall be maintained on-site permanently or until site closure:(A) sampling plan and procedures;(B) training and certification records of staff; and(C) maturity protocol test results.(3) Records shall be available for inspection by agency representatives during normal business hours.(4) The executive director may at any time request by registered or certified mail that a generator submit copies of all documentation listed in paragraph (1) of this subsection for auditing the final product grade. Documentation requested under this section shall be submitted within ten working days of receipt of the request.(f) Sampling Frequencies.(1) Registered facilities. For those facilities which are required to register, all final product on-site must be sampled and assigned a final product grade set forth in §332.72 of this title (relating to Final Product Grades) at a minimum rate of one sample for every 5,000 cubic yard batch of final product or annually, whichever is more frequent. Each sample will be a composite of nine grab samples as discussed in subsection (g) of this section.(2) Permitted facilities. For facilities requiring a permit, all final product on-site must be sampled and assigned a final product grade set forth in §332.72 of this title at a minimum rate of one sample for every 3,000 cubic yard batch of final product or monthly whichever is more frequent. Each sample will be a composite of nine grab samples as discussed in subsection (g) of this section.(3) Alternative testing frequency. One year after the initiation of final product testing in accordance with this section, an operator of a registered or permitted facility may submit to the executive director a request for an alternative testing frequency. The request shall include a minimum of 12 consecutive months of final product test results for the parameters set forth in subsection (h) of this section. The executive director will review the request and determine if an alternative frequency is appropriate.(g) Sampling Requirements. For facilities subject to sampling and analysis, the operator shall utilize the protocol in the agency QAPP or an agency approved facility QAQC plan shall be followed. The executive director may at any time request that split samples be provided to an agency representative. Specific sampling requirements that must be satisfied include:(1) Sampling from stockpiles. One third of the grab samples shall be taken from the base of the stockpile (at least 12 inches into the pile at ground level), one third from the exposed surface, and one third from a depth of two feet from the exposed surface of the stockpile.(2) Sampling from conveyors. Sampling times shall be selected randomly at frequencies that provide the same number of subsamples per volume of finished product as is required in subsection (d) of this section.(A) If samples are taken from a conveyor belt, the belt shall be stopped at that time. Sampling shall be done along the entire width and depth of the belt.(B) If samples are taken as the material falls from the end of a conveyor, the conveyor does not need to be stopped. Free-falling samples need to be taken to minimize the bias created as larger particles segregate or heavier particles sink to the bottom as the belt moves. In order to minimize sampling bias, the sample container shall be moved in the shape of a "D" under the falling product to be sampled. The flat portion of the "D" shall be perpendicular to the beltline. The circular portion of the "D" shall be accomplished to return the sampling container to the starting point in a manner so that no product to be sampled is included.(h) Analytical Requirements. Final product subject to the sampling requirements of this section will be tested for all of the following parameters. The executive director may at any time request that additional parameters be tested. These parameters are intended to address public health and environmental protection.(1) Total metals to include:(A) Arsenic;(B) Cadmium;(C) Chromium;(D) Copper;(E) Lead;(F) Mercury;(G) Molybdenum;(H) Nickel;(I) Selenium; and(J) Zinc.(2) Maturity/Stability by reduction in organic matter on an interim basis and by approved method of maturity/stability analysis after the completion of the maturity/stability method protocol as described in subsections (b) and (d) of this section.(3) Weight percent of foreign matter, dry weight basis.(4) pH by the saturated media extract method.(5) Salinity by the saturated media extract electrical conductivity method.(6) Pathogens:(A) salmonella; and(B) fecal coliform.(7) Polychlorinated-biphenyls (PCBs)--required only for permitted facilities.(i) Data Precision and Accuracy. Analytical data quality shall be established by EPA standard laboratory practices to ensure precision and accuracy.(j) Reporting Requirements.(1) Facilities requiring registration must report the following information to the executive director on a semiannual basis for each sampling batch of final product. Facilities requiring a permit must report similarly but on a monthly basis. Reports must include, but may not be limited to, all of the following information:(A) batch numbers identifying the final product sampling batch;(B) the quantities, types, and sources of feedstocks received and the dates received;(C) the quantity of final product and final product standard code assigned;(D) the final product grade or permit number of the disposal facility receiving the final product if it is not Grade 1 or Grade 2 Compost as established in §332.72 of this title (relating to Final Product Grades);(E) all analytical results used to characterize the final product including laboratory quality assurance/quality control data and chain-of-custody documentation; and(F) the date of sampling.(2) Reports must be submitted to the executive director within two months after the reporting period ends.</content><note type="source"><p>Source Note: The provisions of this §332.71 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scG/s332.72"><num value="332.72">§332.72</num><heading>Final Product Grades</heading><content>(a) Applicability. Facilities that receive a registration or permit under this chapter are required to test final product in accordance with this section. Final product derived from municipal sewage sludge at registered facilities is not subject to the requirements of this section, but it must comply with the requirements of Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation). (b) Grades. Compost material that has undergone the composting process and is ready for distribution shall be considered final product, and shall be classified with one of the following grade names:(1) Grade 1 Compost;(2) Grade 2 Compost;(3) Waste Grade Compost.(c) Final product testing. Final product shall be regularly tested pursuant to §332.71 of this title (relating to Sampling and Analysis Requirements for Final Product) to determine the product's grade. Testing of final product and interpretation of test results shall be conducted in accordance with the agency's current Quality Assurance Project Plan, or, in the case of facilities with agency permits or registrations, the Quality Assurance Quality Control Plan specified in the facility's permit.(d) Final product classification. Final product shall be classified according to the following classification system.(1) Grade 1 Compost. To be considered Grade 1 Compost, the final product must meet all of the following criteria:(A) Shall contain no foreign matter of a size or shape that can cause human or animal injury;(B) Shall not exceed all Maximum Allowable Concentrations for Grade 1 Compost in Table 1 of this section;Attached Graphic(C) Shall not contain foreign matter in quantities that cumulatively are greater than 1.5% dry weight on a 4mm screen;(D) Shall meet the requirements of cured compost as described in Table 2 of this section;Attached Graphic(E) Shall meet the requirements for pathogen reduction for Grade 1 Compost as described in Table 3 of this section; andAttached Graphic(F) Shall meet the requirements for salinity and pH for Grade 1 Compost as described in Table 3 of this section.(2) Grade 2 Compost:(A) Shall contain no foreign matter of a size or shape that can cause human or animal injury;(B) Shall not exceed all Maximum Allowable Concentrations for Grade 2 Compost in Table 1 of this section at a compost organic matter content that is equivalent to a mature compost when maturity is determined by reduction in organic matter during the interim period or a maturity test that is part of an approved maturity test protocol;(C) Shall not contain foreign matter in quantities that cumulatively are greater than 1.5% dry weight on a 4mm screen;(D) Shall meet the requirements of semi-mature compost, mature compost, or cured compost as described in Table 2 of this section; (E) Shall meet the requirements for pathogen reduction for Grade 2 Compost as described in Table 3 of this section; and(F) Shall meet the requirements for salinity and pH for Grade 2 Compost as described in Table 3 of this section.(3) Waste Grade Compost:(A) Exceeds any one of the Maximum Allowable Concentrations for Grade 2 final product in Table 1 of this section; and(B) Does not meet the other requirements of Grade 1 or Grade 2 Compost.(e) Maturity adjustment. Compost that is semi-mature or mature shall have the metal concentrations adjusted to reflect the metal concentration that would occur if the compost met the criteria for a cured compost as described in Table 2, "Maturity and Stability Standards."(f) Waste grade final product. Any material that does not meet the final product standards shall be appropriately disposed at a permitted municipal solid waste facility.</content><note type="source"><p>Source Note: The provisions of this §332.72 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scG/s332.73"><num value="332.73">§332.73</num><heading>Allowable Uses of Final Product by Grade</heading><content>(a) Applicability. Facilities that receive a registration or permit under this chapter are required to test final product in accordance with this section. Final product derived from municipal sewage sludge at registered facilities is not subject to the requirements of this section, but must comply with the requirements of Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation).(b) Distribution. Distribution and use of final product shall be in accordance with the following restrictions.(1) Grade 1 Compost. There are no restrictions on the use of Grade 1 compost.(2) Grade 2 Compost. Grade 2 compost shall not be used at a residence or licensed child-care facility.</content><note type="source"><p>Source Note: The provisions of this §332.73 adopted to be effective November 29, 1995, 20 TexReg 9717.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scG/s332.74"><num value="332.74">§332.74</num><heading>Compost Labelling Requirements</heading><content>(a) Applicability. Facilities that receive a registration or permit under this chapter are required to test final product in accordance with this section. Final product derived from municipal sewage sludge at registered facilities is not subject to the requirements of this section, but must comply with the requirements of Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation).(b) Label information. All compost distributed within Texas derived from feedstock identified in the registration and permit tiers in §332.3 of this title (relating to Applicability) shall be clearly labelled according to the following requirements. The label information must be grouped together and plainly printed in English and Spanish.(1) Labels and vouchers. Compost distributed in containers shall have a label attached to or on the face of the container. Vouchers which provide the same information as required on labels shall be given to persons receiving compost distributed in bulk.(2) Labels/vouchers information. The label or voucher shall include the information described in subparagraphs (A) or (B) of this paragraph.(A) General statement.(i) Grade 1 Compost. "This product is considered Grade 1 Compost and meets the requirements and standards described in 30 Texas Administrative Code §332.72 and has unrestricted use."(ii) Grade 2 Compost. "This product is considered Grade 2 Compost and meets the requirements and standards described in 30 Texas Administrative Code §332.72 and cannot be used at a residence or licensed childcare facility."(B) Feedstocks. Specify the feedstock or feedstocks from which the compost was derived. When two or more feedstocks are used, the label or voucher shall indicate each feedstock used in descending order or predominance by wet weight. For purposes of specifying feedstocks for this labelling requirement, water added to composting materials shall not be considered a feedstock. The label shall identify one or more of the following general descriptions of feedstock:(i) source-separated organic materials;(ii) source-separated meat, fish, chicken, oils, or greases;(iii) municipal sewage sludge;(iv) organic materials derived from a positive sort of mixed municipal solid waste;(v) grease trap waste;(vi) disposable diapers;(vii) the sludge byproduct of paper production; and(viii) mixed municipal solid waste.(C) Incorporation into soil. The label shall state that it is recommended that compost be mixed into the top 15 centimeters of soil.</content><note type="source"><p>Source Note: The provisions of this §332.74 adopted to be effective November 29, 1995, 20 TexReg 9717.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c332/scG/s332.75"><num value="332.75">§332.75</num><heading>Out of State Production</heading><content>Any compost produced outside of the State of Texas, which is distributed within Texas, shall be labeled pursuant to §332.74 of this title (relating to Compost Labelling Requirements).</content><note type="source"><p>Source Note: The provisions of this §332.75 adopted to be effective November 29, 1995, 20 TexReg 9717; amended to be effective February 3, 2022, 47 TexReg 303.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c333"><num value="333">CHAPTER 333</num><heading>BROWNFIELDS INITIATIVES</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c333/scA"><num value="A">SUBCHAPTER A</num><heading>VOLUNTARY CLEANUP PROGRAM SECTION</heading><section identifier="/us/state/tx/tac/t30/p1/c333/scA/s333.1"><num value="333.1">§333.1</num><heading>Requirements</heading><content>(a) The requirements of the Voluntary Cleanup Program are found in this subchapter and in the Texas Solid Waste Disposal Act, Subchapter S, Texas Health and Safety Code, Chapter 361.(b) The applicant shall submit two copies of all documents, one of which the Voluntary Cleanup Program will file in the agency central records.</content><note type="source"><p>Source Note: The provisions of this §333.1 adopted to be effective April 19, 1996, 21 TexReg 3203.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scA/s333.2"><num value="333.2">§333.2</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:(1) Change in land use--A change in use from a less protective risk classification to a more protective risk classification (e.g., commercial/industrial to residential) or not maintaining a physical control, remediation system, or post-response action care or non-permanent institutional control as set out in the conditional Certificate.(2) Completion--No more response actions are necessary or the applicant is satisfactorily maintaining the physical controls, remediation systems, or post-response action care or non-permanent institutional controls are utilized pursuant to the Voluntary Cleanup agreement.(3) Initiate an enforcement action--The issuance of a notice of violation by the executive director or referral to the United States Environmental Protection Agency or Attorney General's Office for a possible enforcement action.(4) Partial response action--A response action which is limited to an areal portion of the site and off- site areas, if any, contaminated due to releases which have migrated from the partial response action area onto property owned or controlled by others, inclusive of all media.(5) Partial response action area--The area of the site and off-site within which the partial response action will be conducted in accordance with a plan approved by the executive director.(6) Pending enforcement action--Concerning the remediation of the hazardous substance or contaminant described in the application, a notice of violation has been issued and further administrative, state, or federal enforcement action is under evaluation or an enforcement action is required by federal grant, or the state has incurred unreimbursed costs under the Texas Health and Safety Code, Chapter 361, Subchapter F.(7) Response action objectives--The goals of the response actions, which may include both qualitative and quantitative goals.(8) Site--The property as described in the legal description provided in the voluntary cleanup agreement.(9) Site subject to a commission permit or order--A site or portion of a site concerning which an order or permit has been issued by the commission. These also include hazardous waste facilities, which are operating under interim status.</content><note type="source"><p>Source Note: The provisions of this §333.2 adopted to be effective April 19, 1996, 21 TexReg 3203; amended to be effective September 23, 1999, 24 TexReg 7420.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scA/s333.3"><num value="333.3">§333.3</num><heading>Purpose</heading><content>The purpose of the Voluntary Cleanup Program is to provide incentives to remediate property by removing liability of future landowners and lenders and to provide a process by which voluntary response actions can be completed in a timely and efficient manner.</content><note type="source"><p>Source Note: The provisions of this §333.3 adopted to be effective April 19, 1996, 21 TexReg 3203.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scA/s333.4"><num value="333.4">§333.4</num><heading>Application To Participate in the Voluntary Cleanup Program (VCP)</heading><content>An application submitted to the Voluntary Cleanup Program must be accepted or rejected within 45 days of receipt by the commission. The commission shall not initiate enforcement action on a Voluntary Cleanup Program applicant during the pendency of the agency review of an application for the contamination or release that is the subject of the Voluntary Cleanup agreement or the activity that resulted in the contamination or release.</content><note type="source"><p>Source Note: The provisions of this §333.4 adopted to be effective April 19, 1996, 21 TexReg 3203.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scA/s333.5"><num value="333.5">§333.5</num><heading>Rejection of Application</heading><content>The executive director may reject an application submitted to the Voluntary Cleanup Program when all costs recoverable under the Texas Solid Waste Disposal Act, Subchapter F, Texas Health and Safety Code, Chapter 361 (State Superfund) for the site are not paid in full to the hazardous and solid waste remediation fee fund by the applicant.</content><note type="source"><p>Source Note: The provisions of this §333.5 adopted to be effective April 19, 1996, 21 TexReg 3203.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scA/s333.6"><num value="333.6">§333.6</num><heading>Voluntary Cleanup Agreement</heading><content>(a) The voluntary cleanup agreement must be signed by the applicant and the executive director or his representative prior to initiation of any response action being implemented, with the exception of emergency measures which should be coordinated with the appropriate emergency response authorities. However, for response actions initiated or completed prior to the effective date of these rules, the executive director at his discretion may allow sites to enter the Voluntary Cleanup Program. After the effective date of these rules, persons initiating response actions prior to a signed Voluntary Cleanup Agreement may not enter the Voluntary Cleanup Program. A certificate of completion may not be issued for sites which have received agency approval for response actions completed prior to the effective date of the rule if:(1) the action did not address all contaminants or contaminated media within the site or partial response action area;(2) contaminant management practices were initiated or changed since the previous approval date; or(3) regulatory requirements have changed since the approval date.(b) In the case of partial response actions, the commission retains the authority to issue an enforcement action regarding releases or contamination not addressed by the partial response action.</content><note type="source"><p>Source Note: The provisions of this §333.6 adopted to be effective April 19, 1996, 21 TexReg 3203.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scA/s333.7"><num value="333.7">§333.7</num><heading>Voluntary Cleanup Work Plans and Reports</heading><content>(a) Voluntary cleanup work plans and reports shall meet all the requirements for work plans and reports set forth in 30 TAC 350 of this title (relating to Texas Risk Reduction Program). Contaminated media within the investigation area shall be addressed according to the appropriate established technical standards.(b) The requirements of subsection (a) of this section apply to a partial response action when a contaminant release originating from a partial response action area has migrated onto property owned or controlled by others.(c) The requirements of subsection (a) of this section apply to all voluntary cleanup response actions with the following exceptions:(1) When a person demonstrates to the satisfaction of the executive director that the source of contamination is from off-site and the person did not cause the release, the person may address only contamination on the site or the partial response action area within the site according to the appropriate established technical standards.(2) When a contaminant release is present outside the site or partial response action area, but on property owned or otherwise controlled by the applicant, addressing the areal extent of contamination outside the site or partial response action area is not required under the Voluntary Cleanup Program; however, the contaminant release within the partial response action area shall be addressed according to the appropriate established technical standards.</content><note type="source"><p>Source Note: The provisions of this §333.7 adopted to be effective April 19, 1996, 21 TexReg 3203; amended to be effective September 23, 1999, 24 TexReg 7420.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scA/s333.8"><num value="333.8">§333.8</num><heading>Response Action Standards</heading><content>(a) Excepting areal limitations with partial response actions, all environmental media which exceed the critical protective concentration levels developed in accordance with Chapter 350, Subchapter D of this title (relating to Development of Protective Concentration Levels) shall be addressed through the appropriate response actions as required in Chapter 350, Subchapter B of this title (relating to Remedy Standards).(b) State or local permits are not required for removal or remedial action under the Voluntary Cleanup Program. The person conducting the voluntary cleanup shall comply with any federal or state standard, requirement, criterion, or limitation to which the response action would otherwise be subject if a permit were required unless such commission rule requirements are inconsistent with a specific provision of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §333.8 adopted to be effective April 19, 1996, 21 TexReg 3203; amended to be effective September 23, 1999, 24 TexReg 7420.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scA/s333.9"><num value="333.9">§333.9</num><heading>Deed Certification</heading><content>The filing of the certificate of completion, including all appropriate exhibits, into the real property records shall satisfy the requirements of Chapter 350 of this title (relating to Texas Risk Reduction Program) to file institutional controls in the real property records for the areas covered by the certificate of completion.</content><note type="source"><p>Source Note: The provisions of this §333.9 adopted to be effective April 19, 1996, 21 TexReg 3203; amended to be effective September 23, 1999, 24 TexReg 7420.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scA/s333.10"><num value="333.10">§333.10</num><heading>Certificate of Completion</heading><content>(a) If reports acceptable to the executive director that are submitted under this subchapter demonstrate that no further action is required to protect human health and the environment, the executive director shall certify such facts by issuing the person a final certificate of completion. If the applicant is satisfactorily maintaining the physical controls, remediation systems, or post-response action care, or if non-permanent institutional controls are utilized pursuant to an agreement, the executive director shall certify such facts by issuing the applicant a conditional certificate of completion. The executive director may authorize an applicant to conduct a phased response action only when, in the executive director's evaluation, the schedule is reasonable.(b) For partial response actions, the certificate of completion shall pertain only to the partial response action area and shall include a legal description of that area.(c) For sites approved prior to the effective date of this rule, agency will issue a certificate of completion for sites only if currently appropriate response actions for all contaminants within the area described in the certificate of completion have been completed.(d) The executive director may allow the applicant to file the copy of the certificate of completion into the site deed record on the executive director's behalf if the applicant provides subsequent documentation of the filing. The applicant must file the copy of the certificate of completion prior to the sale or transfer of the property, but not later than 90 days after the date of issuance of the certificate of completion.(e) The executive director may allow the applicant to file a statement in the deed records stating that the certificate of completion supersedes prior deed certification requirements.</content><note type="source"><p>Source Note: The provisions of this §333.10 adopted to be effective April 19, 1996, 21 TexReg 3203; amended to be effective September 23, 1999, 24 TexReg 7420.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c333/scB"><num value="B">SUBCHAPTER B</num><heading>INNOCENT OWNER/OPERATOR CERTIFICATION</heading><section identifier="/us/state/tx/tac/t30/p1/c333/scB/s333.31"><num value="333.31">§333.31</num><heading>Delegation</heading><content>The authority to issue, deny or revoke a certificate under Chapter 361, Subchapter V, of the Texas Health and Safety Code is delegated by the commission to the executive director pursuant to Texas Water Code, §5.122.</content><note type="source"><p>Source Note: The provisions of this §333.31 adopted to be effective August 30, 1998, 23 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scB/s333.32"><num value="333.32">§333.32</num><heading>Requirements</heading><content>(a) The requirements of the innocent owner/operator certification are found in this subchapter and in the Texas Health and Safety Code, Chapter 361, Subchapter V.(b) The applicant shall submit two copies of all documents, one of which will be filed in the agency central records.</content><note type="source"><p>Source Note: The provisions of this §333.32 adopted to be effective August 30, 1998, 23 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scB/s333.33"><num value="333.33">§333.33</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Innocent owner/operator certificate--A certificate issued by the executive director or their designee which confirms that the person is an innocent owner/operator as defined in Texas Health and Safety Code, §361.751, or that the person is eligible for immunity under §361.752(b).(2) Portion of the tract--A site which does not contain the source of the release of contamination but which is a subdivided section of a tract which contains the source of the release of contamination.(3) Site--The property as described in the legal description provided in the innocent owner/operator application.(4) Source of release of contamination--The property from which a release of contaminants originated.</content><note type="source"><p>Source Note: The provisions of this §333.33 adopted to be effective August 30, 1998, 23 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scB/s333.34"><num value="333.34">§333.34</num><heading>Eligibility for Innocent Owner/Operator Certificate</heading><content>(a) The following persons are eligible to receive an innocent owner/operator certificate:(1) a person defined as an innocent owner/operator in the Texas Health and Safety Code, §361.751(2); and(2) a person that acquired a portion of the tract on which the source of a release of contaminants is located from the person that caused the release who meets the provisions of the Texas Health and Safety Code, §361.752(b).(b) A person electing to participate in the innocent owner/operator program shall:(1) complete an innocent owner/operator application as provided by Texas Health and Safety Code, §361.753;(2) pay all agency costs associated with the review of the application and the issuance of the innocent owner/operator certificate; and(3) agree to grant reasonable access to the site for purposes of investigation or remediation to a person designated by the executive director.(c) A person is not required to be a current owner or operator of the site in order to apply for an innocent owner/operator certificate, but must provide proof of ownership or operation before a certificate can be issued.</content><note type="source"><p>Source Note: The provisions of this §333.34 adopted to be effective August 30, 1998, 23 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scB/s333.35"><num value="333.35">§333.35</num><heading>Application</heading><content>(a) A person who desires to obtain an innocent owner/operator certificate shall submit to the executive director an application and an application fee as prescribed by this section.(b) An application submitted under this section shall:(1) be on a form provided by the executive director;(2) contain:(A) general information concerning the owner/operator and the site;(B) a site investigation report;(C) a legal description of the site and the name of the site owner and/or operator, as appropriate, at the time of application submittal;(D) a statement that the owner or operator has not caused or contributed to the off-site source or sources of contamination that have released or migrated onto the site and is otherwise eligible for an innocent owner/operator certificate; and(E) other background information requested by the executive director.(3) be accompanied by an application fee of $1,000 payable to the Texas Natural Resource Conservation Commission.(c) The site investigation report shall include the following:(1) relevant information concerning the potential for human exposure to the release or migration of contaminants at the site;(2) information concerning site contamination which demonstrates:(A) that the site has become contaminated as a result of a release or migration of contaminants from a source or sources not located on or at the site; and(B) that the person has not caused or contributed to the off-site source or sources of contamination which have released or migrated onto the site;(3) a summary of all known historical and current site uses, including a description of areas and activities where potential on-site contaminant sources may be located;(4) if a portion of the tract was acquired from the person that caused the release, then the person applying for the certification shall also provide information which demonstrates the following:(A) the person acquired the portion of the tract after appropriate inquiry consistent with good commercial or customary practice; and(B) after conducting this inquiry, the person did not know or have reason to know of the contamination at the time the person acquired the site;(5) previously completed site investigation reports for the site within the possession or control of the applicant;(6) a schedule for conducting any additional site investigation activities and/or the submittal of additional information that is necessary to complete the requirements of this subsection; and(7) a description of any placement of institutional or engineering controls on the use of the site, proposed by the applicant, that are necessary to protect the public health.(8) In those instances where there exists on the site an actual or potential source or sources of the same or similar contaminants to those that have been released or migrated from an off-site source or sources, the applicant or other party at its option may conduct an investigation, remediation, or other response action with respect to the on-site source or sources and seek approval of that action through this section from the executive director.(d) If a sale, transfer, or change in ownership or operation of the site will occur during the application review period for an innocent owner/operator certificate, the prospective owner or operator may be added to the application as a coapplicant with the current owner or operator. The following information regarding the coapplicant shall be included in the application:(1) general information regarding the prospective owner or operator;(2) a statement that the prospective owner or operator has not caused or contributed to the off-site source or sources of contamination that have been released or migrated onto the site and is otherwise eligible for an innocent owner/operator certificate; and(3) other background information requested by the executive director.(e) If an innocent owner/operator certificate holder contemplates a sale, transfer, or change in operation of the site and the prospective owner or operator desires receipt of an innocent owner/operator certificate, the certificate holder and/or the prospective owner or operator shall submit an updated application with the executive director. The updated application shall be accompanied by an application fee and shall:(1) be on a form provided by the executive director;(2) contain:(A) a copy of the most recent innocent owner/operator certificate issued for the site;(B) general information regarding the prospective owner or operator;(C) a statement that the prospective owner or operator has not caused or contributed to the off-site source or sources of contamination that have been released or have migrated onto the site and is otherwise eligible for an innocent owner/operator certificate;(D) a statement or other documentation which demonstrates that the certificate holder:(i) has not, during the period since issuance of the most recent certificate, caused or contributed to the source or sources of off-site contamination that have been released or migrated onto the site;(ii) has not, during the period since issuance of the most recent certificate, discharged or released on the site any contaminants covered by a prior certificate; and(iii) remains otherwise eligible for an innocent owner/operator certificate;(E) a legal description of the site and the name of the site's owner and/or operator, as appropriate, at the time of the updated application submittal;(F) a summary of all known historical and current site uses since the most recent certificate was issued, including a description of areas and activities where potential on-site contaminant sources may be located;(G) other background information requested by the executive director; and(H) additional site investigation activities and additional information necessary to complete the requirements of this subsection when activities or land use since the most recent certificate was issued may have caused the discharge or release of contaminants covered by a prior certificate.(f) By signing an application, the applicant agrees:(1) pursuant to Texas Water Code, §5.122, that the executive director has the authority to issue, deny, or revoke a certificate; and(2) to pay the agency all reasonable costs incurred in reviewing the applicant's innocent owner/operator application and in issuing the innocent owner/operator certificate.(g) Any portion of the application fee not incurred or obligated in the review of the application and in the issuance of the innocent owner/operator certificate will be refunded.(h) If an application is not complete, the executive director will provide the applicant with a list of all information needed to make the application complete and will allow the applicant an opportunity to submit the additional information.</content><note type="source"><p>Source Note: The provisions of this §333.35 adopted to be effective August 30, 1998, 23 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scB/s333.36"><num value="333.36">§333.36</num><heading>Information Provided by Adjacent Landowners/Operators</heading><content>(a) The applicant shall mail notice of the application by certified mail, return receipt requested, to property owners adjacent to the site within 14 days of application submittal on a form provided by the executive director. The notice will include the names of the person(s) who are seeking an innocent owner/operator certificate, and will explain that information and reports regarding the site are available for inspection and copying in the agency's files. The notice will also request that within 14 days of receipt of the notice, adjacent property owners submit to the executive director additional information which may assist the executive director in reviewing the innocent owner/operator application. The applicant shall submit copies of the delivered notice letter and the signed receipts to the executive director within 7 days of applicant's receipt of the signed receipts from the adjacent land owners. Notice to governmental entities shall be delivered to the chief clerk or city secretary.(b) Prior to reviewing any information submitted by adjacent owners, the executive director will notify the applicant that information has been received and will provide the applicant an opportunity to review the information. Unless the applicant notifies the executive director within 14 days of receipt of this notice of applicant's intent to withdraw its application, the executive director will review the information submitted by adjacent owners, and the applicant will be responsible for paying the costs incurred by this review.</content><note type="source"><p>Source Note: The provisions of this §333.36 adopted to be effective August 30, 1998, 23 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scB/s333.37"><num value="333.37">§333.37</num><heading>Withdrawal of Application</heading><content>(a) The applicant may withdraw the application by giving advance written notice to the executive director. The remainder of the application fee not incurred or obligated in the review of the application will be refunded.(b) Withdrawal of the application does not affect any right the executive director has under other law to recover costs.</content><note type="source"><p>Source Note: The provisions of this §333.37 adopted to be effective August 30, 1998, 23 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scB/s333.38"><num value="333.38">§333.38</num><heading>Innocent Owner/Operator Certificate</heading><content>(a) Prior to certificate issuance, the applicant and any coapplicant shall submit to the executive director an affidavit affirming that neither the applicant nor any coapplicant caused or contributed to the off-site source or sources of contamination that have been released or have migrated onto the site and is otherwise eligible for an innocent owner/operator certificate.(b) In the case of a sale, transfer, or other change in the ownership or operation of the site, the applicant and any coapplicant shall submit to the executive director an affidavit from the certificate holder or, if an affidavit is unobtainable, other documentation prior to certificate issuance. The affidavit or other documentation shall affirm that the current certificate holder has not, during the period since issuance of the most recent certificate, caused or contributed to the source or sources of off-site contamination that have released or migrated onto the site; and during the period since issuance of the most recent certificate, has not discharged or released on the site any contaminants covered by a prior certificate; and is otherwise eligible for an innocent owner/operator certificate. The executive director, in its discretion, may require a site investigation report.(c) If the executive director determines that a person is an innocent owner/operator based upon the application submitted pursuant to §333.35 of this title (relating to Application), and upon the affidavit(s) submitted by applicant(s) and/or the certificate holder, the executive director will issue the person an innocent owner/operator certificate.(d) The innocent owner/operator certificate shall specify the contaminant(s) and the media for which the executive director has confirmed the applicant's innocent owner/operator status.(e) The innocent owner/operator certificate will acknowledge the protection from liability provided by Texas Health and Safety Code, §361.752.(f) If the application of a prospective owner or operator satisfies the requirements of §333.35 of this title, the executive director will issue an innocent owner/operator certificate to the prospective owner or operator only after the executive director has received proof of ownership or operation.(g) Institutional or engineering controls for a site shall be described in a restrictive covenant in favor of the agency and the State of Texas to be filed in the real property records in the county in which the site is located. The executive director will issue an innocent owner/operator certificate only after the executive director has received proof of the filing of the restrictive covenant. In the event the applicant is an operator, the applicant must obtain written concurrence from the owner of the property before a restrictive covenant is filed in the real property records for that property.</content><note type="source"><p>Source Note: The provisions of this §333.38 adopted to be effective August 30, 1998, 23 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scB/s333.39"><num value="333.39">§333.39</num><heading>Denial of Certificate</heading><content>(a) The executive director may deny the issuance of a certificate under Texas Health and Safety Code, §361.753:(1) if the application is not complete;(2) the applicant does not provide sufficient information from which the executive director can determine the applicant's eligibility to receive an innocent owner/operator certificate under Texas Health and Safety Code, §361.753;(3) information obtained since the application was filed demonstrates that the applicant is not an innocent owner or operator; or(4) the owner/operator does not grant reasonable access as required by Texas Health and Safety Code, §361.752(c).(b) If the executive director denies the certificate, the executive director will notify the person of the reasons for denial.</content><note type="source"><p>Source Note: The provisions of this §333.39 adopted to be effective August 30, 1998, 23 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scB/s333.40"><num value="333.40">§333.40</num><heading>Revocation of Certificate</heading><content>(a) The certificate shall remain valid until revoked.(b) The executive director may revoke the innocent owner/operator certificate if:(1) the certificate holder:(A) acquired the innocent owner/operator certificate by fraud, misrepresentation, or knowing failure to disclose material information;(B) does not properly maintain institutional and/or engineering controls where the placement of such controls were required for certificate issuance; or(C) does not pay all the agency costs described in §333.34(b)(2) of this title (relating to Eligibility for Innocent Owner/Operator Certificate) within 180 days of certificate issuance; or(2) new information demonstrates that the certificate holder is not an innocent owner or operator.(c) Prior to revocation of a certificate by the executive director, the executive director will provide the certificate holder with a notice in writing of the facts alleged to warrant revocation. The certificate holder shall have 30 days after receipt of notice to demonstrate to the executive director that they are in compliance with all requirements of law for the retention of the certificate. The executive director will make a determination whether to revoke the certificate and will provide such determination in writing to the certificate holder. A decision of the executive director to revoke a certificate is final and appealable under Chapter 361, Subchapter K, of the Texas Health and Safety Code.(d) The commission may revoke a certificate if the certificate holder unreasonably denies access as required by §333.41 of this title (relating to Access). The decision to revoke a certificate shall be made following a finding by the commission that reasonable access has been denied. Such finding shall be based on facts and/or evidence presented to the commission through an enforcement action.</content><note type="source"><p>Source Note: The provisions of this §333.40 adopted to be effective August 30, 1998, 23 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scB/s333.41"><num value="333.41">§333.41</num><heading>Access</heading><content>(a) An owner or operator must grant reasonable access to the site for purposes of investigation and remediation to persons designated by the executive director.(b) The commission, its employees, contractors, and agents may access the site pursuant to §361.752(d) or any other relevant provision of the Texas Health and Safety Code, or the Texas Water Code.</content><note type="source"><p>Source Note: The provisions of this §333.41 adopted to be effective August 30, 1998, 23 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scB/s333.42"><num value="333.42">§333.42</num><heading>Cost Recovery</heading><content>If the person does not pay the agency's costs incurred in reviewing the application and the issuance of the innocent owner/operator certificate before the 31st day after the date the person receives notice that the costs are due and owing, the attorney general, at the request of the executive director, may bring an action in the name of the State of Texas in Travis County to recover the amount owed and reasonable legal expenses, including attorney's fees, witness costs, court costs, and deposition costs.</content><note type="source"><p>Source Note: The provisions of this §333.42 adopted to be effective August 30, 1998, 23 TexReg 8684.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c333/scB/s333.43"><num value="333.43">§333.43</num><heading>Cost Report</heading><content>The executive director will annually calculate the agency's costs to administer the innocent owner/operator program and will publish in the Texas Register the rates established for the purposes of identifying the costs recoverable by the agency under Texas Health and Safety Code, Subchapter V.</content><note type="source"><p>Source Note: The provisions of this §333.43 adopted to be effective August 30, 1998, 23 TexReg 8684.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c334"><num value="334">CHAPTER 334</num><heading>UNDERGROUND AND ABOVEGROUND STORAGE TANKS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c334/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.1"><num value="334.1">§334.1</num><heading>Purpose and Applicability</heading><content>(a) Purpose. The purposes of this chapter are to:(1) provide a comprehensive regulatory program for hazardous substance and petroleum substance underground storage tank (UST) systems, and a limited regulatory program for petroleum product aboveground storage tanks (ASTs), as prescribed by the Texas Water Code, Chapter 26, Subchapter I and Subchapter K;(2) establish minimum standards and procedures to reasonably protect and maintain the quality of the state's groundwater and surface water resources from environmental contamination that could result from any releases of harmful substances stored in such tanks;(3) provide for the use of risk-based corrective action; and(4) generally provide for the protection of human health and safety, as well as the protection of the overall environment of the state.(b) Applicability to USTs.(1) An UST system is subject to all or part of the applicable regulations in this chapter only when such system:(A) meets the definition of UST system under §334.2 of this title (relating to Definitions);(B) contains, has contained, or will contain a regulated substance as defined under §334.2 of this title;(C) is not completely exempted from regulation under §334.3(a) of this title (relating to Exemptions for Underground Storage Tanks (USTs) and UST Systems); and(D) is not completely excluded from regulation under §334.4(a) of this title (relating to Exclusions for Underground Storage Tanks (USTs) and UST Systems).(2) The requirements and provisions in this chapter are applicable to regulated UST systems (as described in paragraph (1) of this subsection), and to the registration, self-certification, design, construction, installation, operation, testing, maintenance, upgrading, recordkeeping, reporting, removal from service, release monitoring, release reporting and corrective action (including risk-based corrective action), fee assessment, financial assurance in accordance with Chapter 37, Subchapter I of this title (relating to Financial Assurance for Petroleum Underground Storage Tank Systems), and other applicable requirements associated with such systems, as more fully described in this chapter.(3) The requirements and provisions in this chapter apply equally to all owners and operators of regulated UST systems (as described in paragraph (1) of this subsection), including individuals, trusts, firms, joint-stock companies, corporations, governmental corporations, partnerships, associations (including non-profit and charity organizations), states, municipalities, commissions, political subdivisions of a state, interstate bodies, consortiums, joint ventures, commercial and noncommercial entities, and the United States Government (including all of its departments), except as otherwise provided in this chapter.(4) The following types of underground tank systems are subject to all or parts of the applicable regulations in this chapter if they meet the general qualifications for an UST system in paragraph (1) of this subsection:(A) compartmental tanks, when at least one of the compartments is used to store regulated substances; and(B) dual-use or multiple-use tanks which alternately store two or more substances, when at least one of the stored substances is a regulated substance.(c) Applicability to ASTs.(1) An AST is subject to the applicable regulations in this chapter only when such tank;(A) meets the definition of "aboveground storage tank" in §334.2 of this title;(B) contains, has contained, or will contain a "petroleum product" as defined in §334.2 of this title;(C) is not exempted from regulation under §334.123 of this title (relating to Exemptions for Aboveground Storage Tanks (ASTs)); and(D) is not excluded from regulation under §334.124 of this title (relating to Exclusions for Aboveground Storage Tanks (ASTs)).(2) The requirements and provisions in this chapter apply to regulated ASTs, and to the registration, installation notification, reporting, recordkeeping, release reporting and corrective action (including risk-based corrective action), fee assessment, and other applicable requirements associated with such tanks, as more fully described in this chapter.(3) The applicable requirements and provisions in this chapter shall apply equally to all owners and operators of regulated ASTs, including individuals, trusts, firms, joint-stock companies, corporations, governmental corporations, partnerships, associations (including nonprofit and charity organizations), states, municipalities, commissions, political subdivisions of a state, interstate bodies, consortiums, joint ventures, commercial and noncommercial entities, and the United States government (including all of its departments), except as otherwise provided in this chapter.(4) The following types of ASTs are subject to the applicable regulations in this chapter if they meet the general qualifications for an AST in paragraph (1) of this subsection:(A) compartmental tanks, when at least one of the compartments is used to store petroleum products; and(B) dual-use or multiple-use tanks which alternately store two or more substances when at least one of the stored substances is a petroleum product;(5) If a storage tank containing a petroleum product technically meets the definitions of both an AST and an UST under this chapter, then the tank will be considered an UST, and must conform with all applicable requirements for USTs in this chapter.(6) Consistent with the exemption for heating oil tanks in §334.123(a)(2) of this title, an AST storing a petroleum product (such as kerosene or diesel) which is primarily used as a heating oil substitute for heating purposes on the premises where stored, and which is secondarily used as a motor fuel for the operation of internal combustion engines, is exempt from the regulations of this chapter.(d) Applicability of specific sections to USTs and ASTs.(1) USTs are subject to all the applicable provisions of this chapter, except Subchapter F of this chapter (relating to Aboveground Storage Tanks). Underground petroleum storage tanks are also subject to all applicable provisions of Chapter 37, Subchapter I of this title.(2) ASTs are subject to all the applicable provisions of this chapter, except:(A) §334.3 of this title (relating to Exemptions for Underground Storage Tanks (USTs) and UST Systems), §334.4 of this title (relating to Exclusions for Underground Storage Tanks (USTs) and UST Systems), §334.5 of this title (relating to General Prohibitions for Underground Storage Tanks (USTs) and UST Systems), §334.6 of this title (relating to Construction Notification for Underground Storage Tanks (USTs) and UST Systems), §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems), §334.8 of this title (relating to Certification for Underground Storage Tanks (USTs) and UST Systems), and §334.9 of this title (relating to Seller's Disclosure), and §334.10 of this title (relating to Reporting and Recordkeeping);(B) Subchapter B of this chapter (relating to Underground Storage Tank Fees);(C) Subchapter C of this chapter (relating to UST Technical Standards); and(D) Subchapter I of this chapter (relating to Underground Storage Tank Contractor Registration and Installer Licensing).</content><note type="source"><p>Source Note: The provisions of this §334.1 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.2"><num value="334.2">§334.2</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.(1) Abandonment in-place--A method of permanent removal of an underground storage tank from service where the tank is left in the ground after appropriate preparation and filling with an acceptable solid inert material in accordance with the requirements of §334.55 of this title (relating to Permanent Removal from Service).(2) Abatement--The process of reducing in sufficient degree or intensity the source of the release or impacted area, and potential fire, explosion, or vapor hazards, such that immediate threats to human health no longer exist. This includes the removal, as necessary, of all regulated substances from any confirmed or suspected release source (including associated aboveground or underground tanks, individual tank compartments, or associated piping) and the removal of phase-separated regulated substances from the impacted area.(3) Aboveground release--Any release to the surface of the land or to surface water, including, but not limited to, releases from the aboveground portion of an underground storage tank (UST) system and releases associated with overfills and transfer operations during the dispensing, delivering, or removal of regulated substances into or out of a UST system.(4) Aboveground storage tank (AST)--A non-vehicular device (including any associated piping) that is made of non-earthen materials; located on or above the surface of the ground, or on or above the surface of the floor of a structure below ground, such as mineworking, basement, or vault; and designed to contain an accumulation of petroleum products.(5) Action level--The concentration of constituents of any substance or product listed in §334.1(a)(1) of this title (relating to Purpose and Applicability) in the soil or water at which corrective action will be required.(6) Airport hydrant system--An underground storage tank system which fuels aircraft and operates under high pressure with large diameter piping that typically terminates into one or more hydrants (fill stands). The airport hydrant system begins where fuel enters one or more tanks from an external source such as a pipeline, barge, railcar, or other motor fuel carrier.(7) Allowable cost--As defined by §334.308 of this title (relating to Allowable Costs and Restrictions on Allowable Costs).(8) American National Standards Institute (ANSI)--A nationally recognized organization which provides certifications and standards for consumer products and services.(9) American Petroleum Institute (API)--A nationally recognized organization which provides certifications and standards for petroleum equipment and services.(10) Ancillary equipment--Any devices that are used to distribute, meter, or control the flow of petroleum substances or hazardous substances into or out of an underground storage tank, including, but not limited to, piping, fittings, flanges, valves, and pumps.(11) Appropriate regional office--The agency's regional field office which has jurisdiction for conducting authorized agency regulatory activities in the area where a particular underground storage tank system or aboveground storage tank system is located.(12) Association for Composite Tanks (ACT)--A trademark of the former Association for Composite Tanks, now a licensed trademark of the Steel Tank Institute.(13) ASTM International (formerly known as American Society of Testing and Materials)--A nationally recognized organization which provides certifications and standards for products and services.(14) Backfill--The volume of materials or soils surrounding the underground storage tank bounded by the ground surface, walls, and floor of the tank pit.(15) Below-ground release--Any release to the subsurface of the land or to groundwater, including, but not limited to, releases from the below-ground portions of an underground storage tank (UST) system and releases associated with overfills and transfer operations during the dispensing, delivering, or removal of regulated substances into or out of a UST system.(16) Beneath the surface of the ground--Beneath the ground surface or otherwise covered with earthen material.(17) Cathodic protection--A technique to prevent corrosion of a metal surface by making that surface the cathode of an electrochemical cell, normally by means of either the attachment of galvanic anodes or the application of impressed current. (18) Change-in-service--A method of permanent removal from service involving the permanent conversion of a regulated underground storage tank to a tank which is not regulated under this chapter, where all regulated substances are properly removed by emptying and cleaning, and the tank is left in the ground for the storage of materials other than regulated substances.(19) Closure letter--A letter issued by the agency which states that, based on the information available, the agency agrees that corrective action has been completed for the referenced release in accordance with agency requirements.(20) Commingled--A combination or mixture of a petroleum product and a substance other than a petroleum product (excluding soil and/or water).(21) Common carrier--With respect to delivery prohibitions, a person (as defined in this section) who physically delivers a regulated substance into an underground storage tank or an aboveground storage tank directly from a cargo tank which is affixed or mounted to a self-propelled, towable, or pushable vehicle (e.g., wagon, truck, trailer, railcar, aircraft, boat, or barge).(22) Compatible--The ability of two or more substances to maintain their respective physical and chemical properties upon contact with one another for the design life of the tank system under conditions likely to be encountered in the underground storage tank.(23) Composite tank--A single-wall or double-wall steel tank, to which a fiberglass-reinforced plastic laminate or cladding has been factory-applied to the external surface of the outer tank wall.(24) Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)--The federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.(25) Consumptive use--With respect to heating oil, the utilization and consumption of heating oil on the premises where stored.(26) Containment sump--A liquid tight container that protects the environment by containing leaks and spills of regulated substances from piping, dispensers, pumps and related components in the containment area. Containment sumps may be single walled or secondarily contained and located at the top of tank (tank top or submersible turbine pump sump), underneath the dispenser (under dispenser containment sump), or at other points in the piping run (transition or intermediate sump).(27) Corporate fiduciary--An entity chartered by the Texas Department of Banking, the Texas Department of Savings and Mortgage Lending, or the United States Office of the Comptroller of the Currency that acts as a receiver, conservator, guardian, executor, administrator, trustee, or fiduciary of real or personal property.(28) Corrective action--Any assessment, monitoring, and remedial activities undertaken to investigate the extent of, and to remediate, contamination.(29) Corrective action plan (or remedial action plan)--A detailed plan developed to address site remediation of soil, groundwater, or surface water contamination that provides for required protection of human health, safety, and the environment. The selection of the most effective and efficient remedial method will be dictated by the nature and location of the release, the site soils, hydrogeological conditions, and the required degree of remediation. The remedial method selection should take into consideration such factors as cost, time, and state compliance requirements with each method. The title of any report which contains a corrective action plan must include the designation "remedial action plan."(30) Corrosion specialist--A person who, by reason of a thorough knowledge of the physical sciences and the principles of engineering and mathematics acquired by a professional education and related practical experience, is qualified to engage in the practice of corrosion control on buried or submerged metal piping systems and metal tanks, and who is either:(A) certified as a corrosion specialist or a cathodic protection specialist by NACE International; or(B) licensed as a professional engineer by the Texas Board of Professional Engineers in a branch of engineering that includes education and experience in corrosion control of buried or submerged metal piping systems and metal tanks.(31) Corrosion technician--A person who can demonstrate an understanding of the principles of soil resistivity, stray current, structure-to-soil potential, and component electrical isolation measurements related to corrosion protection and control on buried or submerged metal tanks and metal piping systems; who is qualified by appropriate training and experience to engage in the practice of inspection and testing for corrosion protection and control on such systems, including the inspection and testing of all common types of cathodic protection systems; and who is either:(A) certified by NACE International as a corrosion technician, corrosion technologist, or senior corrosion technologist;(B) employed under the direct supervision of a corrosion specialist (as defined in this section), where the corrosion specialist maintains responsible control and oversight over all corrosion testing and inspection activities; or(C) certified as a cathodic protection tester, in a manner satisfactory to the agency, by either NACE International or the Steel Tank Institute.(32) Date installation is complete--The date any regulated substance is initially placed in an underground storage tank or the date any petroleum product is initially placed in an aboveground storage tank.(33) Dielectric material--A material that does not conduct direct electrical current, as related to coatings, bushings, and other equipment and materials used with underground storage tank systems.(34) Dispenser--Equipment located aboveground that dispenses regulated substances from the underground storage tank system. (35) Electrical equipment--Underground equipment which contains dielectric fluid which is necessary for the operation of equipment such as transformers and buried electrical cable.(36) Emergency generator--A standby electrical generating system powered by an internal combustion engine (including a turbine), where such system is designed to supply temporary electrical service only when service from the normal or primary electrical source is disrupted. Such systems include, but are not necessarily limited to, those providing emergency electrical service for hospitals, life support systems, and other medical service facilities; telephone and electrical utilities; heating, lighting, ventilation, security, elevator, fire control, and other essential building operations systems; uninterruptible power systems; essential air conditioning and refrigeration; and motors, machinery, and controls used for other essential or critical purposes.(37) Excavation zone--The space containing the underground storage tank (UST) system and backfill material, which is bounded by the ground surface and the walls and floor of the pit and trenches into which the UST system is placed at the time of installation.(38) Existing underground storage tank (UST) system--A UST system which is used or designed to contain an accumulation of regulated substances for which installation either had commenced prior to December 22, 1988, or had been completed on or prior to December 22, 1988. Installation will be considered to have commenced if the owner or operator had obtained all federal, state, and local approvals or permits necessary to begin physical construction at the site or installation of the tank system, and if either a continuous on-site physical construction or installation program had begun or the owner or operator had entered into contractual obligations (which could not be canceled or modified without substantial loss) which required that the physical construction at the site or installation of the tank system was to be completed within a reasonable time.(39) External release detection--A method of release detection which includes equipment or procedures designed to effectively monitor or measure for the presence of regulated substances in the excavation zone, soil, or other media outside of a single-wall or double-wall underground storage tank system.(40) Facility--The site, tract, or other defined area where one or more underground storage tank systems or one or more aboveground storage tank systems are located.(41) Farm--A tract or tracts of land (including all associated structures and improvements) which are principally devoted to the raising of agricultural or other types of crops, domestic or other types of animals, or fish for the production of food, fiber, or other products or for other useful purposes, including fish hatcheries, rangeland, and plant nurseries with growing operations, but not including timber-growing land and operations dedicated primarily to recreational, aesthetic, or other non-agricultural activities (e.g., golf courses and parks).(42) Farm tank--A tank located on a farm where the stored regulated substance is or will be utilized directly in the farm activities.(43) Field-constructed tank--A tank constructed in the field. For example, a tank constructed of concrete that is poured in the field or a steel or fiberglass tank primarily fabricated in the field is considered field-constructed.(44) Flow-through process tank--A tank through which regulated substances flow in a steady, variable, recurring, or intermittent manner during, and as an integral part of, a production process (such as petroleum refining, chemical production, and industrial manufacturing), but specifically excluding any tank used for the static storage of regulated substances prior to their introduction into the production process and any tank used for the static storage of regulated substances which are products or by-products of the production process.(45) Free product (or non-aqueous phase liquid)--A regulated substance in its free-flowing non-aqueous liquid phase at standard conditions of temperature and pressure (i.e., that portion of the product not dissolved in water or adhering to soil).(46) Gathering lines--Any pipeline, equipment, facility, or building used in the transportation of oil or gas during oil or gas production or gathering operation.(47) Hazardous substance--Any substance defined or listed in the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, §101(14) (42 United States Code (USC), §§9601, et seq.), and which is not regulated as a hazardous waste under the federal Solid Waste Disposal Act, Subtitle C (42 USC, §§6921, et seq.). (48) Hazardous substance underground storage tank (UST) system--A UST system that contains an accumulation of either a hazardous substance, a mixture of two or more hazardous substances, or a mixture of one or more petroleum substances with one or more hazardous substances, and which does not meet the definition of a petroleum UST system in this section.(49) Heating oil--A petroleum substance which is typically used in the operation of heating, boiler, or furnace equipment and which either is one of the following seven technical grades of fuel oil: Number 1, Number 2, Number 4-light, Number 4-heavy, Number 5-light, Number 5-heavy, and Number 6; is a residual fuel oil derivative of the refining process (such as Navy Special and Bunker C residual fuel oils); or is another fuel (such as kerosene or diesel) used for heating purposes as a substitute for one of the fuel oils or residual fuel oil derivatives listed in this paragraph.(50) Hydraulic fluid--Any regulated substance that is normally used in a hydraulic lift system.(51) Hydraulic lift tank--A tank holding hydraulic fluid for a closed-loop mechanical system that uses compressed air and hydraulic fluid to operate lifts, elevators, or other similar devices.(52) Impressed current system--A method of cathodic protection where a rectifier is used to convert alternating current to direct current, where the current then flows in a controlled electrically connected circuit to non-sacrificial anodes, then through the surrounding soil or backfill to the protected metallic structure or component, and back to the rectifier.(53) In operation--The description of an in-service underground storage tank which is currently being used on a regular basis for its intended purpose.(54) In service--The status of an underground storage tank (UST) beginning at the time that regulated substances are first placed into the tank and continuing until the tank is permanently removed from service by means of either removal from the ground, abandonment in-place, or change-in-service. An in-service UST may or may not contain regulated substances, and may be either in operation or out of operation at any specific time.(55) Installer--A person who participates in or supervises the installation, repair, or removal of underground storage tanks.(56) Inventory control--Techniques used to identify a loss of product that are based on volumetric measurements in the tank and reconciliation of those measurements with product delivery and withdrawal records.(57) Jacketed tank--A factory-constructed tank consisting of a single-wall or double-wall steel internal (or primary) tank that is completely enclosed in an external secondary-containment jacket made of noncorrodible material, and which is designed so that releases of stored substances from the internal tank can be contained and monitored within a liquid-tight interstitial space between the internal tank and the external jacket.(58) Lender--A state or national bank; a state or federal savings bank; a credit union; a state or federal savings and loan association; a state or federal government agency that customarily provides financing; or an entity that is registered with the Office of Consumer Credit Commissioner under Chapter 7, Title 79, Revised Statutes (Texas Civil Statutes, Article 5069-7.01, et seq.) if the entity is regularly engaged in the business of extending credit and if extending credit represents the majority of the entity's total business activity.(59) Liquid trap--A collection device (such as a sump, well cellar, and other trap) which is used in association with oil and gas production, gathering, and extraction operations (including gas production plants) for the purpose of collecting oil, water, and other liquids, and which either may temporarily collect liquids for subsequent disposition or reinjection into a production or pipeline stream, or may collect and separate liquids from a gas stream.(60) Leaking petroleum storage tank (LPST) site--A site at which a confirmed release of a petroleum substance from an underground storage tank or aboveground storage tank has occurred. Petroleum substance contamination which results from multiple sources may be deemed as one LPST site by the agency.(61) Maintenance--The normal and routine operational upkeep of underground storage tank systems necessary for the prevention of releases of stored regulated substances.(62) Monitoring well--An artificial excavation constructed to measure or monitor the quantity or movement of substances, elements, chemicals, or fluids below the surface of the ground. The term does not include any monitoring well which is used in conjunction with the production of oil, gas, or any other minerals.(63) Motor fuel--A complex blend of hydrocarbons typically used for the operation of a motor engine, such as and which is one of the following types of fuels: motor gasoline, aviation gasoline, Number 1 or Number 2 diesel fuel, or any blend containing one or more of these substances (for example, motor gasoline blended with alcohol).(64) NACE International (NACE) (formerly National Association of Corrosion Engineers)--A nationally recognized organization which provides certifications and standards for corrosion protection services.(65) National Fire Protection Association (NFPA)--A nationally recognized organization which provides certifications and standards for fire protection equipment and services.(66) New dispenser--A dispenser system is considered new when both the dispenser and the equipment needed to connect the dispenser to the underground storage tank system are installed at an underground storage tank facility. The equipment necessary to connect the dispenser to the underground storage tank system includes check valves, shear valves, unburied risers or flexible connectors, or other transitional components that are underneath the dispenser and connect the dispenser to the underground piping.(67) New underground storage tank (UST) system--A UST system which is used or designed to contain an accumulation of regulated substances for which installation commenced after December 22, 1988, or an underground storage system which is converted from the storage of materials other than regulated substances to the storage of regulated substances after December 22, 1988.(68) Non-aqueous phase liquid (NAPL)--See "Free product (or non-aqueous phase liquid)" as defined in this section.(69) Non-commercial purposes--With respect to motor fuel, all purposes except resale. (70) Noncorrodible material--A material used in the construction, maintenance, or upgrading of any component of an underground storage tank (UST) system which is designed to retain its physical and chemical properties without significant deterioration or failure for the operational life of the UST system when placed in contact with (and subjected to the resulting electrical and chemical forces associated with) any surrounding soil, backfill, or groundwater, any connected components constructed of dissimilar material, or the stored regulated substance.(71) Observation well--A monitoring well or other vertical tubular structure which is constructed, installed, or placed within any portion of an underground storage tank excavation zone (including the tank hole and piping trench), and which is designed or used for the observation or monitoring of groundwater, or for the observation, monitoring, recovery, or withdrawal of either released regulated substances (in liquid or vapor phase) or groundwater contaminated by such released regulated substances.(72) Occurrence--An incident, including continuous or repeated exposure to conditions, which results in a release from an underground storage tank or aboveground storage tank or tank system.(73) On the premises where stored--With respect to heating oil, refers to underground storage tank systems located on the same property where the stored heating oil is used.(74) Operational life--The actual or anticipated service life of an underground storage tank system, which begins when regulated substances are first placed into the tank system and which continues until the tank system is permanently removed from service by means of either removal from the ground, abandonment in-place, or change-in-service. (75) Operator--Any person in day-to-day control of, and having responsibility for, the daily operation of the underground storage tank system or the aboveground storage tank system, as applicable. (76) Out of operation--The description of an in-service underground storage tank which is not currently being used on a regular basis for its intended purpose.(77) Overfill--A release that occurs when an underground storage tank system is filled beyond its capacity, thereby resulting in a discharge of a regulated substance to the surface or subsurface environment.(78) Owner--Any person who holds legal possession or ownership of an interest in an underground storage tank (UST) system or an aboveground storage tank (AST). For the purposes of this chapter, if the actual ownership of a UST system or an AST is uncertain, unknown, or in dispute, the fee simple owner of the surface estate of the tract on which the UST system or the AST is located is considered the UST system or AST owner unless that person can demonstrate by appropriate documentation, including a deed reservation, invoice, bill of sale, or by other legally acceptable means that the UST system or AST is owned by another person. A person who has registered as an owner of a UST system or AST with the commission under §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems) (or a preceding rule section concerning tank registration) after September 1, 1987, shall be considered the UST system owner and/or AST owner until such time as documentation demonstrates to the executive director's satisfaction that the legal interest in the UST system or AST was transferred to a different person subsequent to the date of the tank registration. This definition is subject to the limitations found in Texas Water Code (TWC), §26.3514, Limits on Liability of Lender; TWC, §26.3515, Limits on Liability of Corporate Fiduciary; and TWC, §26.3516, Limits on Liability of Taxing Unit.(79) Permanent removal from service--The termination of the use and the operational life of an underground storage tank by means of either removal from the ground, abandonment in-place, or change-in-service.(80) Person--As defined in §3.2 of this title (relating to Definitions).(81) Petroleum Equipment Institute (PEI)--A nationally recognized organization which provides certifications and standards for petroleum equipment and services.(82) Petroleum marketing facilities--All facilities at which a petroleum substance is produced or refined and all facilities from which a petroleum substance is sold or transferred to other petroleum substance marketers or to the public.(83) Petroleum marketing firms--All firms owning petroleum marketing facilities. Firms owning other types of facilities with underground storage tanks as well as petroleum marketing facilities are considered to be petroleum marketing firms.(84) Petroleum product--A petroleum substance obtained from distilling and processing crude oil that is liquid at standard conditions of temperature and pressure, and that is capable of being used as a fuel for the propulsion of a motor vehicle or aircraft, including, but not limited to, motor gasoline, gasohol, other alcohol blended fuels, aviation gasoline, kerosene, distillate fuel oil, Number 1 and Number 2 diesel, and biodiesel blended with Number 1 or Number 2 diesel. The term does not include naphtha-type jet fuel, kerosene-type jet fuel, or a petroleum product destined for use in chemical manufacturing or feedstock of that manufacturing.(85) Petroleum storage tank--(A) Any one or combination of aboveground storage tanks that contain petroleum products and that are regulated by the commission; or(B) Any one or combination of underground storage tanks and all connecting underground pipes that contain petroleum products and that are regulated by the commission.(86) Petroleum substance--A crude oil or any refined or unrefined fraction or derivative of crude oil which is liquid at standard conditions of temperature and pressure (except for any substance regulated as a hazardous waste under the federal Solid Waste Disposal Act, Subtitle C (42 United States Code, §§6921, et seq.)). For the purposes of this chapter, a petroleum substance is limited to one or a combination of the substances or mixtures in the following list:(A) basic petroleum substances (crude oils, crude oil fractions, petroleum feedstocks, and petroleum fractions);(B) motor fuels (see definition for "Motor fuel" in this section);(C) aviation gasolines (e.g., Grade 80, Grade 100, and Grade 100-LL);(D) aviation jet fuels (e.g., Jet A, Jet A-1, Jet B, JP-4, JP-5, and JP-8);(E) distillate fuel oils (e.g., Number 1-D, Number 1, Number 2-D, and Number 2);(F) residual fuel oils (e.g., Number 4-D, Number 4-light, Number 4, Number 5-light, Number 5-heavy, and Number 6);(G) gas-turbine fuel oils (e.g., Grade 0-GT, Grade 1-GT, Grade 2-GT, Grade 3-GT, and Grade 4-GT); (H) illuminating oils (e.g., kerosene, mineral seal oil, long-time burning oils, 300 oil, and mineral colza oil);(I) solvents (e.g., Stoddard solvent, petroleum spirits, mineral spirits, petroleum ether, varnish makers' and painters' naphthas, petroleum extender oils, and commercial hexane);(J) lubricants (automotive and industrial lubricants);(K) building materials (e.g., liquid asphalt and dust-laying oils);(L) insulating and waterproofing materials (e.g., transformer oils and cable oils); or(M) used oils (see definition for "Used oil" in this section).(87) Petroleum underground storage tank (UST) system--A UST system that contains, has contained, or will contain a petroleum substance (as defined in this section), a mixture of two or more petroleum substances, or a mixture of one or more petroleum substances with very small amounts of one or more hazardous substances. In order for a UST system containing a mixture of petroleum substances with small amounts of hazardous substances to be classified as a petroleum UST system, the hazardous substance must be at such a dilute concentration that the overall release detectability, effectiveness of corrective action, and toxicity of the basic petroleum substance is not altered to any significant degree.(88) Pipeline facilities (including gathering lines)--New and existing pipeline rights-of-way, including any equipment, facilities, or buildings therein which are used in the transportation or associated treatment (during transportation) of gas or hazardous liquids (which include petroleum and other liquids as designated by the Secretary of the United States Department of Transportation), and which are regulated under the federal Hazardous Liquid Pipeline Safety Act of 1979 (49 United States Code, §§60101, et seq. and its subsequent amendments or a succeeding law); or (for intrastate pipeline facilities) the Texas Natural Resources Code, Chapter 111 or 117, or Texas Civil Statutes, Articles 6053-1 and 6053-2.(89) Piping--All underground pipes in an underground storage tank system, including valves, elbows, joints, flanges, flexible connectors, and other fittings attached to a tank system through which regulated substances flow or in which regulated substances are contained or stored.(90) Piping trench--The portion of the excavation zone at an underground storage tank facility which contains the piping system and associated backfill materials.(91) Pressurized piping--Product or delivery piping in an underground storage tank system which typically operates at greater than atmospheric pressure.(92) Professional engineer--A person who is currently duly licensed by the Texas Board of Professional Engineers to engage in the practice of engineering in the State of Texas.(93) Professional geoscientist--A person who is currently duly licensed by the Texas Board of Professional Geoscientists to engage in the public practice of geoscience in the State of Texas.(94) Qualified personnel--Persons who possess the appropriate competence, skills, and ability (as demonstrated by sufficient education, training, experience, and/or, when applicable, any required certification or licensing) to perform a specific activity in a timely and complete manner consistent with the applicable regulatory requirements and generally accepted industry standards for such activity.(95) Radioactive materials--Radioactive substances or radioactive waste materials (e.g., high-level radioactive wastes and low-level radioactive cooling waters) which are classified as hazardous substances under the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, §101(14), 42 United States Code (USC), §§9601, et seq., except for radioactive materials regulated as a hazardous waste under the federal Solid Waste Disposal Act, Subtitle C, 42 USC, §§6921, et seq. (96) Regulated substance--An element, compound, mixture, solution, or substance that, when released into the environment, may present substantial danger to the public health, welfare, or the environment. For the purposes of this chapter, a regulated substance is limited to any hazardous substance (as defined in this section), any petroleum substance (as defined in this section), any mixture of two or more hazardous substances and/or petroleum substances, and any other substance designated by the commission to be regulated under the provisions of this chapter.(97) Release--Any spilling including overfills, leaking, emitting, discharging, escaping, leaching, or disposing from an underground storage tank or aboveground storage tank into groundwater, surface water, or subsurface soils. In this definition, the term "subsurface soils" does not include backfill or native material in the tank hole that is placed immediately adjacent to or surrounding an underground storage tank system when the system is installed or the system's individual components are replaced unless petroleum free product is present in the backfill or native material.(98) Release detection--The process of determining whether a release of a regulated substance is occurring, or has occurred, from an underground storage tank system.(99) Repair--The restoration, renovation, or mending of a damaged or malfunctioning tank or underground storage tank system component.(100) Replaced--(A) For a tank - to remove a tank and install another tank. (B) For piping - to remove 35% or more of piping and install other piping, excluding connectors, connected to a single tank. For tanks with multiple piping runs, this definition applies independently to each piping run.(101) Residential tank--A tank located on property used primarily for dwelling purposes.(102) Retail service station--A facility where flammable liquids used as motor fuels are stored and dispensed from fixed equipment into the fuel tanks of motor vehicles and where such dispensing is an act of retail sale.(103) Risk-based corrective action--Site assessment or site remediation, the timing, type, and degree of which is determined according to case-by-case consideration of actual or potential risk to public health from environmental exposure to a regulated substance released from a leaking underground storage tank or aboveground storage tank.(104) Secondary containment--A containment method by which a secondary wall, jacket, or barrier is installed around the primary storage vessel (e.g., tank or piping) in a manner designed to prevent a release from migrating beyond the secondary wall or barrier before the release can be detected. Secondary containment systems include, but are not limited to: double-wall tank and/or piping systems, impervious liners, jackets, containment boots, sumps, or vaults surrounding a primary (single-wall) tank and/or piping system.(105) Septic tank--As defined in §285.2 of this title (relating to Definitions).(106) Spill--A release of a regulated substance which results during the filling, placement, or transfer of regulated substances into an underground storage tank (UST) or an aboveground storage tank (AST), or during the transfer or removal of regulated substances from a UST system or an AST.(107) Standard conditions of temperature and pressure--A temperature of 60 degrees Fahrenheit and an atmospheric pressure of 14.7 pounds per square inch absolute.(108) Steel Tank Institute (STI)--A nationally recognized organization which provides certifications and standards for steel tanks.(109) Stormwater or wastewater collection system--The piping, pumps, conduits, and any other equipment necessary to collect and transport surface water runoff resulting from precipitation, or domestic, commercial, or industrial wastewater to and from retention areas or any areas where treatment is designated to occur. The collection of stormwater and wastewater does not include treatment except where incidental to conveyance.(110) Suction piping--Product or delivery piping in an underground storage tank system which typically operates below atmospheric pressure.(111) Sump--Any man-made pit or reservoir that meets the definition of a tank in this section (including any connected troughs or trenches) that serves to collect and temporarily store regulated substances.(112) Surface impoundment--A natural topographic depression, man-made excavation, or diked area formed primarily of earthen materials (but possibly lined with man-made materials) that is designed to hold an accumulation of regulated substances.(113) Tank--A stationary device (generally exclusive of any associated ancillary equipment) designed or used to contain an accumulation of regulated substances which is constructed of a non-earthen material (e.g., concrete, steel, or plastic) that provides structural support.(114) Tank hole--The portion of the excavation zone at an underground storage tank facility which contains the tanks and associated backfill materials.(115) Tank system--An underground storage tank system.(116) Temporary removal from service--The procedure by which an underground storage tank system may be temporarily taken out of operation without being permanently removed from service.(117) Tightness test (or tightness testing)--A procedure for testing and analyzing a tank or piping system to determine whether the system(s) is capable of preventing the inadvertent release of a stored substance into the environment.(118) Under-dispenser containment (UDC)--Containment underneath a dispenser system designed to prevent leaks from the dispenser and piping within or above the UDC from reaching soil or groundwater.(119) Underground area--An underground room, basement, cellar, shaft, or vault, which provides enough space for physical inspection of the exterior of a tank or tank system situated on or above the surface of the floor.(120) Underground storage tank (UST)--Any one or combination of underground tanks and any connecting underground pipes used to contain an accumulation of regulated substances, the volume of which, including the volume of the connecting underground pipes, is 10% or more beneath the surface of the ground.(121) Underground storage tank (UST) system--An underground storage tank, all associated underground piping and underground ancillary equipment, spill and overfill prevention equipment, release detection equipment, corrosion protection system, secondary containment equipment (as applicable), and all other related systems and equipment.(122) Underwriters Laboratories, Inc. (UL)--A nationally recognized organization which provides certifications and standards for consumer products and services.(123) Unsaturated zone--The subsurface zone containing water under pressure less than that of the atmosphere (including water held by capillary forces within the soil) and containing air or gases generally under atmospheric pressure. This zone is bounded at the top by the ground surface and at the bottom by the upper surface of the zone of saturation (i.e., the water table).(124) Upgrading--The addition, improvement, retrofitting, or renovation of an existing underground storage tank system with equipment or components as required to meet the corrosion protection, spill and overfill prevention, and release detection requirements of this chapter.(125) Used oil--Any oil that has been refined from crude oil, or any synthetic oil, that has been used and as a result of such use is contaminated by physical or chemical impurities.(126) Vent lines--All pipes including valves, elbows, joints, flanges, flexible connectors, and other fittings attached to a tank system, which are intended to convey the vapors emitted from a regulated substance stored in an underground storage tank to the atmosphere.(127) Wastewater treatment tank--A tank that is designed to receive and treat an influent wastewater through physical, chemical, or biological methods.</content><note type="source"><p>Source Note: The provisions of this §334.2 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective June 25, 1990, 15 TexReg 3424; amended to be effective August 15, 1994, 19 TexReg 5843; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective November 18, 2004, 29 TexReg 10532; amended to be effective November 9, 2006, 31 TexReg 9034; amended to be effective October 30, 2008, 33 TexReg 8790; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.3"><num value="334.3">§334.3</num><heading>Exemptions for Underground Storage Tanks (USTs) and UST Systems</heading><content>(a) Complete exemption. The following underground tanks and containment devices (including any connected piping) are completely exempt from regulation under this chapter:(1) farm or residential tank with a capacity of 1,100 gallons or less used for storing motor fuel for noncommercial purposes;(2) tanks used for storing heating oil for consumptive use on the premises where stored;(3) septic tank;(4) surface impoundments, pits, ponds, or lagoons;(5) stormwater or wastewater collection systems;(6) flow-through process tanks;(7) tanks, liquid traps, gathering lines, or other facilities used in connection with an activity associated with the exploration, development, or production of oil, gas, or geothermal resources, or any other activity regulated by the Railroad Commission of Texas pursuant to the Natural Resources Code, §91.101;(8) transformers or other electrical equipment that contains a regulated substance and that is used in the transmission of electricity, to the extent that such a transformer or equipment is exempted by the United States Environmental Protection Agency under Title 40 Code of Federal Regulations, Part 280;(9) storage tanks located in an underground area, including a basement, cellar, mineworking, drift, shaft, or tunnel, if the storage tank is located on or above the surface of the floor;(10) pipeline facilities, including gathering lines, if such facilities are regulated under:(A) the Natural Gas Pipeline Safety Act of 1968 (49 United States Code, §§1671, et seq.); or(B) the Hazardous Liquid Pipeline Safety Act of 1979 (49 United States Code, §2001, et seq.);(11) interstate pipeline facilities if such facilities are regulated under of the following state laws:(A) the Natural Resources Code, Chapter 111;(B) the Natural Resources Code, Chapter 117; or(C) Texas Civil Statutes, Articles 6053-1 and 6053-2.(b) Partial exemption. As provided under the Texas Water Code (TWC), §26.344(e), in-ground hydraulic lifts that use a compressed air/hydraulic fluid system and which hold less than 100 gallons of hydraulic oil are exempt from regulation under this chapter, except that such lifts remain subject to the release reporting and corrective action requirements under the TWC, §26.351, and Subchapter D of this chapter (relating to Release Reporting and Corrective Action).(c) Upon request by the agency, the owner and operator of a tank claimed to be exempted under this section must provide appropriate documentation or other information in a timely manner to support that claim.</content><note type="source"><p>Source Note: The provisions of this §334.3 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.4"><num value="334.4">§334.4</num><heading>Exclusions for Underground Storage Tanks (USTs) and UST Systems</heading><content>(a) Complete exclusions. In addition to the tanks exempted from regulation under §334.3 of this title (relating to Exemptions for Underground Storage Tanks (USTs) and UST Systems), the following USTs are completely excluded from regulation under this chapter:(1) any UST system containing a hazardous listed waste or identified under the federal Solid Waste Disposal Act, Subtitle C (42 United States Code (USC), §6921, et seq.), or containing a mixture of such hazardous waste and other regulated substances, where such system is already subject to regulation under the federal Solid Waste Disposal Act, Subtitle C;(2) any wastewater treatment tank (including an oil-water separator and any pretreatment facility), which is an integral part of a wastewater treatment facility which is either:(A) permitted under the federal Clean Water Act, either §307(b) or §402 (33 USC, §1251, et seq.); or(B) permitted pursuant to the Texas Water Code (TWC), Chapter 26;(3) sumps which have a capacity of less than 110 gallons;(4) emergency spill protection or emergency overflow containment tanks, including certain sumps and secondary containment systems, which are used solely for the temporary storage or containment of regulated substances resulting from a leak, spill, overfill, or other unplanned release, and where the regulated substances are routinely removed within 48 hours of the discovery of the release; provided that such tanks must be inspected for a release no less than once every month; or(5) UST systems which during their entire operational life have exclusively contained only regulated substances at such dilute concentrations that any release would not pose any significant threat to human health and safety or the environment.(b) Partial exclusions. The following USTs are subject to all provisions of this chapter, except for Subchapter C of this chapter (relating to Technical Standards); Subchapter N of this chapter (relating to Operator Training); Chapter 30, Subchapter I of this title (relating to Underground Storage Tank On-Site Supervisor Licensing and Contractor Registration); Chapter 37, Subchapter I of this title (relating to Financial Assurance for Petroleum Underground Storage Tank Systems); and the certification requirements of §334.8 of this title (relating to Certification for Underground Storage Tanks (USTs) and UST Systems):(1) any wastewater treatment tank (including oil-water separators), where such tank is not an integral part of a wastewater treatment facility which is either:(A) permitted under the federal Clean Water Act, either §307(b) or §402 (33 USC, §1151, et seq.); or(B) permitted pursuant to the TWC, Chapter 26;(2) any UST systems containing radioactive material that are regulated under the Atomic Energy Act of 1954 (42 USC, §2011, et seq.); (3) any UST system that is part of an emergency generator system at nuclear power generation facilities licensed by the United States Nuclear Regulatory Commission and subject to United States Nuclear Regulatory Commission requirements regarding design and quality criteria, including but not limited to 10 Code of Federal Regulations Part 50.(c) Other exclusion. In addition to the partial exemption for hydraulic lifts covered under §334.3(b) of this title, all other in-ground hydraulic lifts that use a compressed air/hydraulic fluid system and which hold 100 gallons or more of hydraulic oil are similarly excluded from regulation under this chapter, except that such lifts remain subject to the release reporting and corrective action requirements under Subchapter D of this chapter (relating to Release Reporting and Corrective Action).(d) Upon request by the agency, the owner and operator of a tank claimed to be excluded under this section must provide appropriate documentation or other information in a timely manner to support that claim.</content><note type="source"><p>Source Note: The provisions of this §334.4 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.5"><num value="334.5">§334.5</num><heading>General Prohibitions for Underground Storage Tanks (USTs) and UST Systems</heading><content>(a) Design prohibitions. On or after September 1, 1987, no person may install or have installed an underground storage tank (UST) system for the purpose of storing or otherwise containing regulated substances unless such UST system, whether of single-wall or double-wall construction, meets the following standards.(1) The UST system must prevent releases due to corrosion or structural failure for the operational life of the UST system.(2) All components of the UST system must be either cathodically protected against corrosion, constructed of noncorrodible material, constructed of a steel material which has been clad with a noncorrodible material, or must be otherwise designed and constructed in a manner that prevents the release of any stored substances.(3) The UST system must be constructed of, or lined with, a material that is compatible with the stored substance.(b) Delivery prohibitions.(1) Concerning UST systems which the tank owner or operator must self-certify under §334.8(c) of this title (relating to Certification for Underground Storage Tanks (USTs) and UST Systems), the following applies.(A) Except as provided under subparagraphs (B) and (C) of this paragraph, no common carrier (as defined in §334.2 of this title (relating to Definitions)) shall deposit any regulated substance into a UST system regulated under this chapter unless that owner or operator has a valid, current delivery certificate issued by the agency covering that UST system.(B) For new or replacement UST systems, only during the initial period ending 90 days after the date that a regulated substance is first deposited into the new or replacement system(s), a common carrier may accept, as adequate to meet the requirements of subparagraph (A) of this paragraph documentation that the owner or operator has a "temporary delivery authorization," as defined in §334.8(c)(5)(D) of this title, issued by the agency for the facility at which the new or replacement UST system(s) exist.(C) It is an affirmative defense to the imposition of an administrative penalty for a violation of subparagraph (A) of this paragraph that the person delivering a regulated substance into a UST relied on:(i) a valid, current paper delivery certificate presented by the owner or operator of the UST or displayed at the facility associated with the UST;(ii) a temporary delivery authorization presented by the owner or operator of the UST or displayed at the facility associated with the UST; or(iii) registration and self-certification information for the UST obtained from the commission's Internet Web site not more than 30 days before the date of delivery.(2) Concerning UST systems which are not required to be self-certified compliant at a given time under §334.8(c) of this title, but which are required to be registered under §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems), the following applies.(A) Except as provided under subparagraph (B) of this paragraph, no person (as defined in §334.2 of this title) shall deposit any regulated substance into a UST system regulated under this chapter unless that owner or operator has a valid, current registration certificate issued by the agency covering that UST system.(B) The prohibition referenced in subparagraph (A) of this paragraph is not applicable to deliveries into a new or replacement UST system occurring within 30 days of the first deposit of regulated substances.(3) Concerning both types of delivery prohibition referenced in this subsection, the following documentation is considered adequate:(A) the original valid, current document issued by the agency; or(B) a legible copy of the valid, current document issued by the agency.</content><note type="source"><p>Source Note: The provisions of this §334.5 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective November 18, 2004, 29 TexReg 10532; amended to be effective November 9, 2006, 31 TexReg 9034; amended to be effective April 19, 2012, 37 TexReg 2674.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.6"><num value="334.6">§334.6</num><heading>Construction Notification for Underground Storage Tanks (USTs) and UST Systems</heading><content>(a) General requirements.(1) Beginning September 1, 1987, any person who intends either to install a new or replacement underground storage tank (UST), to remove a UST from the ground, or to conduct a permanent abandonment in-place of a UST must comply with the notification requirements of this section prior to initiating such activity.(2) On or after September 29, 1989, any person who intends to perform any construction activity listed in subsection (b)(1) of this section must comply with the notification requirements of this section prior to initiating such activity.(3) In addition to the construction notification requirements of this section, the owner or operator of an existing or proposed UST system that is located or will be located on the designated recharge or transition zones or contributing zone within the transition zone of the Edwards Aquifer must also secure the requisite approval from the agency prior to conducting certain regulated UST activities, as prescribed under Chapter 213 of this title (relating to Edwards Aquifer).(4) Any UST construction activity performed or completed pursuant to a notification submitted under the provisions of this section must meet the applicable technical standards and procedural requirements under Subchapter C of this chapter (relating to Technical Standards).(5) In situations where a proposed UST construction activity is necessitated by a suspected or confirmed release of regulated substances, or where the activity contributes to or causes such a release, the owner or operator must comply with the release reporting, investigation, and corrective action requirements of Subchapter D of this chapter (relating to Release Reporting and Corrective Action).(6) Construction notifications required under this section may be provided to the agency's central office in Austin or to the agency's appropriate regional office in the area of the activity, unless otherwise specified in this section. The official date of notification must be the date on which the notification is first received in an agency office.(7) Construction notification required under this section must be provided by the owner or operator, or an authorized agent or representative of the owner or operator (e.g., a contractor or consultant who has contracted for such construction activity). Construction notifications filed by unauthorized persons are null and void.(b) Notification for major construction activities.(1) Applicable activities.(A) For the purposes of this section, a major UST construction activity includes any of the following:(i) installation of new or previously used tank systems at a new facility, and the addition or replacement of tanks at an existing facility;(ii) removal of existing tank systems from the ground (either temporarily or permanently);(iii) permanent abandonment in-place or change-in-service of existing tank systems;(iv) tank repairs, including interior and exterior relining or recoating;(v) installation of new or replacement piping for existing tanks;(vi) addition of secondary containment equipment for new or existing tank or piping systems;(vii) any tank integrity assessment or other activities requiring the entrance of any persons into a tank;(viii) addition or replacement of any of the following items at existing facilities, when such addition or replacement is necessary for compliance with the minimum upgrading requirements in §334.47(b) of this title (relating to Technical Standards for Existing Underground Storage Tank Systems):(I) cathodic protection systems;(II) release detection systems;(III) spill and overfill prevention equipment; or(IV) monitoring well; and(ix) switching to a regulated substance containing greater than 10% ethanol or greater than 20% biodiesel.(B) The requirements of this section are not applicable to routine and minor maintenance activities related to the tank and piping systems, such as tightening loose fittings and joints, adjusting and calibrating equipment, conducting routine inspections and tests, and the substitution or in-kind replacement of any obsolete or malfunctioning UST system component for any purpose other than required upgrading.(C) When a UST system has been taken temporarily out-of-service under §334.54 of this title (relating to Temporary Removal from Service), the owner or operator must first submit a construction notification form before returning the UST system to service.(2) Filing requirements. Except as provided under subsection (c) of this section, any owner or operator who intends to perform a major UST construction activity as described in paragraph (1) of this subsection must file a written notification with the agency at least 30 days prior to initiating the activity.(A) Such notification should be submitted on the agency's authorized form, as described in paragraph (6) of this subsection.(B) When requested by the agency, any person who intends to perform a major UST construction activity must also submit additional supporting information to assure that the construction activity is in compliance with the requirements of this chapter. Supporting information which may be requested by the agency includes, but is not limited to, the following items:(i) detailed design plans and specifications (drawn to scale);(ii) installation standards and operating instructions for major system components;(iii) quality assurance plans;(iv) compatibility data related to the stored substances and the materials of construction;(v) specific geological, hydrological, and environmental site information;(vi) qualifications and experience records of consultants, equipment installers, and contractors;(vii) formal plan or procedures for tank removals, changes-in-service, and abandonments in-place;(viii) disposal procedures for removed tanks;(ix) general contingency plan for release abatement and the clean-up and disposal of any residual regulated substances, contaminated soils, or contaminated water (including wash water, groundwater, or surface water); and(x) basis and description for any proposed change-in-service.(C) Between 24 and 72 hours prior to the scheduled time of initiation of the proposed activity, the owner or operator must contact the agency's appropriate regional office in the area of the activity to confirm the time of the initiation of the proposed activity. Any revisions to the proposed construction start date must be in accordance with paragraph (3) of this subsection. This subparagraph does not apply to paragraph (1)(A)(ix) of this subsection.(3) Rescheduling. If after the submittal of the initial construction notification, the owner or operator determines that a revision to the previously reported scope or start date for the construction is necessary, the owner or operator must immediately report the revised construction information to the commission's appropriate regional office in the area of the activity. This paragraph does not apply to paragraph (1)(A)(ix) of this subsection.(A) If an earlier start date is proposed, and if this date is less than 30 days from the original notification date, then the owner or operator must comply with the requirements of paragraph (4) of this subsection.(B) An owner or operator may revise the proposed construction start to a later date as necessary, provided that the agency's appropriate regional office is notified, and provided that original written notifications are properly renewed upon expiration in accordance with paragraph (5) of this subsection.(4) Waiver requests. Normally a notification period of at least 30 days is required prior to the initiation of any major UST construction activity. However, if after the submittal of the construction notification, the owner or operator has good cause for an accelerated construction schedule, then the owner or operator may request approval of an earlier construction start date. Such request must be made directly to the agency's appropriate regional office in the area of the activity. The regional director (or the director's designated representative) has the authority to approve or deny such requests, and such decision will be based on the following criteria:(A) good cause shown by the owner or operator for an earlier construction start date; and(B) the ability of agency personnel to arrange and schedule an adequate inspection of the activity.(5) Expiration. A written construction notification for a major UST construction activity is valid for only 180 days after the original notification date or 150 days after the originally anticipated construction start date, whichever is earlier. If the proposed construction has not commenced within this period, the original notification will expire. If the owner or operator still plans to perform the construction after the expiration of this period, a new and updated construction notification form must be filed.(6) Notification form.(A) Any person who intends to perform a major UST construction activity (as described in paragraph (1) of this subsection) must provide all the applicable construction notification information indicated on the agency's authorized construction notification form.(B) The construction notification form must be filled out completely and accurately. Upon completion, the form must be dated and signed by the owner, the operator, or the authorized representative of the owner or operator, and must be timely filed in accordance with subsection (a)(6) of this section.(c) Alternative notification procedures.(1) Only for UST construction activities involving situations described under paragraph (2) of this subsection, the owner or operator may comply with the following alternative notification and reporting procedures in lieu of the normal notification requirements of subsection (b) of this section.(A) The owner or operator must provide verbal or written notification to the agency as soon as possible prior to initiating the construction activity. Such notification must be submitted directly to the agency's appropriate regional office in the area of the activity.(B) After providing the construction notification prescribed under subparagraph (A) of this paragraph, the owner or operator may proceed with the construction activity, as directed by the regional director (or the regional director's designated representative). The owner or operator must maintain detailed records of the construction. No later than 30 days after completion of the construction, the owner or operator must submit to the agency a detailed report describing the activity. If the agency determines that the information in such report is insufficient to assure compliance with the applicable requirements of this chapter, then the owner or operator may be required to submit additional information to demonstrate such compliance.(2) The alternative notification procedures of paragraph (1) of this subsection may be used only when the following situations occur:(A) when an owner or operator of a UST can demonstrate that a release or suspected release of a regulated substance has occurred or is likely to occur as a result of the operation of the UST, when such release is considered an immediate threat to human health or safety or the environment, and when the owner or operator can demonstrate that the expeditious initiation and completion of the proposed construction activity is necessary to prevent or abate such release;(B) when an out-of-operation UST system is discovered during unrelated construction activities (e.g., the construction of building excavations, streets, highways, utilities, etc.), when the property owner can reasonably demonstrate no prior knowledge of the existence of the tank, when the expeditious removal or abandonment in-place of the tank is considered necessary or advisable for the completion of the unrelated construction activity, and where any delays in completion of the tank removal or abandonment in-place would cause unreasonable financial hardship due to contract schedules and completion times;(C) when any duly authorized public official (e.g., any federal, state, or local fire or safety officer, health or environmental official, law officer, etc.) orders the immediate removal or repair of all or portions of a UST system which poses an immediate threat to human health, safety, or the environment;(D) when the activity is necessary to maintain the operational readiness of an emergency generator, as defined by §334.2 of this title (relating to Definitions);(E) in any other case where the agency determines that compliance with the notification provisions of subsection (b) of this section would be unreasonable or impractical, or could increase the threat to human health or safety or the environment.</content><note type="source"><p>Source Note: The provisions of this §334.6 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.7"><num value="334.7">§334.7</num><heading>Registration for Underground Storage Tanks (USTs) and UST Systems</heading><content>(a) General provisions.(1) All underground storage tanks (USTs) in existence on or after September 1, 1987, must be registered with the agency on authorized agency forms in accordance with subsection (e) of this section, except for those tanks which:(A) are completely exempted or partially exempted from regulation under §334.3(a) or (b) of this title (relating to Exemptions for Underground Storage Tanks (USTs) and UST Systems); (B) are completely excluded or partially excluded from regulation under §334.4(a) or (c) of this title (relating to Exclusions for Underground Storage Tanks (USTs) and UST Systems);(C) were properly registered with the agency prior to September 29, 1989, under the provisions of the federal Solid Waste Disposal Act, §9002 (42 United States Code, §§6921, et seq.), provided that the owner or operator must submit notice of all changes and additional information in accordance with the provisions of subsection (d) of this section;(D) have been permanently removed from usage by either:(i) were permanently removed from the ground before May 8, 1986; or(ii) remain in the ground, but were emptied, cleaned, and filled with solid inert materials on or before January 1, 1974, in accordance with accepted industry practices in effect at the time the UST was taken out of operation; or(E) were out of operation and empty of regulated substances at the time of their discovery, provided that:(i) the facility owner and operator can reasonably demonstrate no prior knowledge of the existence of the USTs; and(ii) the USTs are permanently removed from service in accordance with §334.55 of this title (relating to Permanent Removal from Service) no later than September 29, 1990, or within 60 days of their discovery, whichever is later. (2) The owner and operator of a UST are responsible for compliance with the tank registration requirements of this section. An owner or operator may designate an authorized representative to complete and submit the required registration information. However, the owner and operator remain responsible for compliance with the provisions of this section by such representatives. (3) All USTs subject to the registration requirements of this section are also subject to the fee provisions of Subchapter B of this chapter (relating to Underground Storage Tank Fees), except where specifically exempted in this chapter. The failure by a tank owner or operator to properly or timely register any tanks does not exempt the owner from such fee assessment and payment provisions.(4) Proper completion of the tank registration portions of the UST registration and self-certification form will result in the agency's issuance of a UST registration certificate for the tanks at the facility covered by that registration. This certificate is tied to the delivery prohibitions detailed in §334.5(b)(2) of this title (relating to General Prohibitions for Underground Storage Tanks (USTs) and UST Systems). (b) Existing tanks. Any person who owns a UST that was in existence on September 1, 1987, must register such tank with the agency not later than September 1, 1987, on an authorized agency form, except for those tanks exempted and excluded under subsection (a)(1)(A) - (D) of this section. Upon November 23, 2000, the obligation becomes joint and several with the tank operator as well.(c) New or replacement tanks. Any person who owns a new or replacement UST that is placed into service on or after September 1, 1987, must register the tank with the agency on an authorized agency form within 30 days after the date any regulated substance is placed into the tank, except for those tanks exempted or excluded under subsection (a)(1)(A) - (D) of this section. Upon November 23, 2000, the obligation becomes joint and several with the tank operator as well.(d) Changes or additional information.(1) The owner or operator of a UST system must provide written notice to the agency of any changes or additional information concerning such system. Types of changes or additional information subject to this requirement must include, but are not limited to, the following:(A) change in owner or operator, or change in owner or operator information (e.g., authorized representative, mailing address, and/or telephone number), provided that:(i) amended registrations of owner or operator information (other than ownership transfers) may be submitted by the owner, operator, or an authorized representative of the owner or operator; and(ii) amended registrations reflecting UST ownership transfers must be provided by the new UST owner or a legally-authorized representative of the new UST owner (i.e., registrations of ownership transfers submitted by others will be returned and will not be recorded); (B) change in the operational status of any tank system (e.g., in service, temporarily out-of-service, removed from the ground, permanently abandoned in-place, change-in-service to provide for the storage of a substance other than a regulated substance, or change to exempt or excluded status);(C) change in the type of stored regulated substance, including switching to a regulated substance containing:(i) greater than 10% ethanol; or(ii) greater than 20% biodiesel;(D) installation of additional tanks and/or ancillary equipment at an existing facility;(E) change in the type of piping for an existing tank;(F) the addition of, or a change in the type of, internal or external corrosion protection for the tanks, piping, and/or ancillary equipment;(G) the addition of, or a change in the type of, spill and overfill prevention equipment for the tanks;(H) the addition of, or a change in the type of, release detection equipment or methods for the tanks and/or piping;(I) change in the location of documents and records for the facility; and(J) change in financial assurance information related to the facility as specified in Chapter 37, Subchapter I of this title (relating to Financial Assurance for Petroleum Underground Storage Tank Systems).(2) Notice of any change or additional information must be submitted on an authorized agency form which has been completed in accordance with subsection (e) of this section. The agency's UST facility number for the facility must be included in the appropriate space on the form.(3) Notice of any change or additional information must be filed with the agency within 30 days from the date of the occurrence of the change or addition, or within 30 days from the date on which the owner or operator first became aware of the change or addition, as applicable.(4) However, for the initial filing of the UST registration and self-certification form (which is described in §334.8(c)(4) of this title (relating to Certification for Underground Storage Tanks (USTs) and UST Systems)) for all regulated UST systems at a facility, all UST owners and operators must complete the "Tank Identification/Description" section of the UST registration portion of the form by the same deadline given in §334.8(c)(4)(A)(vi) of this title. This requirement does not relieve an owner or operator from any other registration requirements under this section.(e) Required form for providing UST registration information. (1) Any UST owner or operator required to submit UST registration information under subsections (a) - (d) of this section must provide all the information indicated on the agency's authorized form for each regulated UST. The UST registration information must be provided on the appropriate agency form, as specified in paragraph (6) of this subsection.(2) The UST registration portion of the form must be filled out completely and accurately. Upon completion, the form must be dated and signed by the owner, or the operator, or an authorized representative of the owner or operator, and must be filed with the agency within the specified time frames.(3) All UST owners or operators required to submit UST registration information under subsections (a) - (d) of this section must provide the registration information for all USTs located at a particular facility on the same form.(4) UST owners or operators who own or operate USTs located at more than one facility must complete and file a separate form for each facility where regulated USTs are located.(5) If additional information, drawings, or other documents are submitted with new or revised registration data, specific facility identification information (including the facility identification number, if known) must be conspicuously indicated on each document and all such documents must be attached to and filed with the form.(6) For any UST registration information filed with the agency on or after November 23, 2000, UST owners and operators must provide the required information on an authorized agency UST registration and self-certification form, as prescribed by §334.8(c)(4) of this title.(7) Owners and operators of petroleum UST systems should also see the financial assurance requirements in §37.870(b) of this title (relating to Reporting, Registration, and Certification).(f) Inadequate information. When any of the required UST registration information submitted to the agency is determined to be inaccurate, unclear, illegible, incomplete, or otherwise inadequate, the agency may require the owner and/or operator to submit additional information. An owner or operator must submit any such required additional information within 30 days of receipt of such request.</content><note type="source"><p>Source Note: The provisions of this §334.7 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.8"><num value="334.8">§334.8</num><heading>Certification for Underground Storage Tanks (USTs) and UST Systems</heading><content>(a) Underground storage tank (UST) construction activity certifications. The following UST construction activity certifications are required.(1) Certification by installer or on-site supervisor. After September 29, 1989, any installer who is employed or otherwise engaged by a UST owner or operator to install or replace a UST system must also certify by signature that the installation methods are in compliance with §334.46 of this title (relating to Installation Standards for New Underground Storage Tank Systems).(2) Filing requirements. The installation or construction certification information required under paragraph (1) of this subsection must be included in the appropriate sections of the agency's authorized UST registration form or UST registration and self-certification form, as applicable, in accordance with §334.7(e) of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems), and must be filed with the agency in accordance with the applicable tank registration time limits prescribed under §334.7 of this title.(b) Financial assurance certification for USTs storing a petroleum substance. Owners and operators of UST systems regulated under this section must comply with the requirements of subsection (c) of this section.(c) UST compliance self-certification requirements.(1) Applicability. Except as provided in this paragraph, the requirements of this subsection are applicable to the owners and operators of USTs regulated under this chapter.(A) The requirements of this subsection are not applicable to the following USTs:(i) USTs which are completely exempt or partially exempt from regulation under §334.3 of this title (relating to Exemptions for Underground Storage Tanks (USTs) and UST Systems);(ii) USTs which are completely excluded or partially excluded from regulation under §334.4 of this title (relating to Exclusions for Underground Storage Tanks (USTs) and UST Systems);(iii) USTs into which deliveries or deposits of regulated substances are exclusively made by persons other than a common carrier, as defined in §334.2 of this title (relating to Definitions);(iv) USTs used for storing regulated substances that are not motor fuels as defined in §334.2 of this title; and(v) USTs temporarily out-of-service under §334.54 of this title (relating to Temporary Removal from Service) which are empty by definition.(B) Nothing in this subsection affects the requirements under §334.7(d)(4) of this title.(2) Non-provision of delivery certificate. The agency will not provide a UST delivery certificate for USTs covered by the exceptions in paragraph (1)(A) of this subsection.(3) Conditions and limitations.(A) Filing of the UST registration and self-certification form does not relieve an owner or operator from the responsibility for timely compliance with other applicable filing requirements under this chapter.(B) Completion of the UST registration and self-certification form in a manner that indicates compliance with applicable UST regulations (as specified in subparagraph (D) of this paragraph) will result in the agency's issuance of a UST delivery certificate for the tanks at the facility for which compliance is self-certified.(C) The agency's issuance of a delivery certificate for a UST(s) does not constitute agency certification or affirmation of the compliance status of the tank(s) in question with agency UST technical and/or administrative requirements, and this issuance does not preclude the agency from investigating these tanks and pursuing enforcement actions under the Texas Water Code when apparent violations are discovered.(D) The administrative requirements and technical standards that are the subject of the compliance self-certification shall include:(i) tank registration, as described in §334.7 of this title;(ii) facility fees, as described in Subchapter B of this chapter (relating to Underground Storage Tank Fees);(iii) financial assurance, as described in Chapter 37, Subchapter I of this title (relating to Financial Assurance for Petroleum Underground Storage Tank Systems) (Copies of financial assurance documents are required to be submitted as part of self-certification, as specified in paragraph (4)(A)(viii) of this subsection); and(iv) technical standards, as described in §334.49 of this title (relating to Corrosion Protection), §334.50 of this title (relating to Release Detection), §334.51 of this title (relating to Spill and Overfill Prevention and Control), and §334.43 of this title (relating to Variances and Alternative Procedures) when a variance to all or part of one or more of the previous three sections has been granted by the agency in writing under the procedures described in §334.43 of this title (for the purposes of this clause only, certifying to the "technical standards" listed in this subparagraph includes a certification as to recordkeeping and reporting duties required under those regulations for only the 60 days prior to and including the date of certification).(4) UST registration and self-certification form.(A) Requirements for completion of the form.(i) Each UST registration and self-certification form must be completed with all the applicable information requested on the agency's authorized form for all regulated UST systems at the specified facility.(ii) Owners or operators who own or operate regulated USTs at more than one facility must complete and file a separate UST registration and self-certification form for each facility.(iii) The agency will not issue a delivery certificate based upon an incomplete submittal.(iv) Upon completion, the UST registration and self-certification form must be dated and signed by either the UST owner (or the owner's legally authorized representative) or by the UST operator (or the operator's legally authorized representative).(v) If additional information, drawings, or other documents are submitted with the UST registration and self-certification form, specific facility identification information (including the facility identification number) must be conspicuously indicated on each document and all these documents must be securely attached to and filed with the UST registration and self-certification form.(vi) An owner or operator must submit the required UST registration and self-certification form (including any additional or supplemental information required under clause (v) of this subparagraph) to the agency no later than the following dates.(I) For UST systems where the first storage of regulated substances was initiated before the effective date of this clause, the deadline for submission is 60 days after the effective date of this section.(II) For UST systems where the date of the first storage of regulated substances was on or after the effective date of this section, the deadline for submission is no later than 30 days after the date of initial storage of regulated substances.(vii) To ensure timely renewal of a previously issued UST delivery certificate, the deadline for submission is 30 days before the annual renewal date for the UST delivery certificate for that specific facility, as indicated in paragraph (5)(B)(iii) of this subsection.(viii) The owner or operator must submit annually, proof of current financial assurance, in accordance with §37.870(b) of this title (relating to Reporting, Registration, and Certification).(B) The facility owner and operator are both responsible for ensuring that the UST registration and self-certification form is fully and accurately completed, and that it is submitted to the agency in a timely manner. To minimize processing delays, the form should be mailed directly to the specific agency office, department, and mail code shown on the form.(C) When tank ownership at a facility changes, a new certification under this subsection must be made within 30 days of the ownership change.(5) UST delivery certificate.(A) Certificate availability.(i) The owner and operator of USTs regulated under this section must make available to a common carrier a valid, current Texas Commission on Environmental Quality (TCEQ) delivery certificate (or TCEQ temporary delivery authorization under subparagraph (D) of this paragraph, as applicable) before delivery of a regulated substance into the UST(s) can be accepted. The delivery certificate must cover each UST at the facility accepting a delivery. (The owner or operator may comply with this requirement by obtaining or by directing the common carrier to view a current copy of the delivery certificate from the agency's Internet Web site.) The bill of lading for the first delivery of regulated substance into any new or replacement UST at the facility must be attached to the temporary delivery authorization for that facility.(ii) The owner and operator of USTs regulated under this section must make immediately available, upon request by agency staff, a valid, current TCEQ delivery certificate (or TCEQ temporary delivery authorization under subparagraph (D) of this paragraph, as applicable) for the USTs at a facility.(iii) The owner and operator of USTs regulated under this section must ensure that a valid, current TCEQ delivery certificate (or TCEQ temporary delivery authorization under subparagraph (D) of this paragraph, as applicable) is posted at a facility. The posting must be in a location where the document is clearly visible at all times.(B) Annual delivery certificate renewal.(i) The initial delivery certificate issued for a tank(s) will be valid until the expiration date indicated on that certificate. The expiration will be based on the last digit of the official TCEQ owner identification number for the registered owner of the tank(s) in question, as described in clause (ii) of this subparagraph. It is the responsibility of the tank owner and operator to ensure that an application for renewal of that certificate is properly and timely filed.(ii) A delivery certificate is renewed by timely and proper submission of a new UST registration and self-certification form to the agency. For each facility, to allow time for processing of the renewal request, the agency must have received the properly completed form at least 30 days before the expiration date of the delivery certificate in question. The agency will not issue a renewed delivery certificate based on improper submission of renewal documents.(iii) Annual expiration and renewal dates for delivery certificates are determined by the last digit of the official TCEQ owner identification number for the registered owner of the tank(s) in question, and the first renewal for all owners and operators is due in calendar year 2002, and for each year thereafter on the following dates:(I) if owner number ends in "1" delivery certificate expires on January 31, and renewal is due February 1;(II) if owner number ends in "2" delivery certificate expires on the last day of February, and renewal is due March 1;(III) if owner number ends in "3" delivery certificate expires on March 31, and renewal is due April 1;(IV) if owner number ends in "4" delivery certificate expires April 30, and renewal is due May 1;(V) if owner number ends in "5" delivery certificate expires on May 31, and renewal is due June 1;(VI) if owner number ends in "6" delivery certificate expires on June 30, and renewal is due July 1;(VII) if owner number ends in "7" delivery certificate expires July 31, and renewal is due August 1;(VIII) if owner number ends in "8" delivery certificate expires August 31, and renewal is due September 1;(IX) if owner number ends in "9" delivery certificate expires September 30, and renewal is due October 1; and(X) if owner number ends in "0" delivery certificate expires October 31, and renewal is due November 1.(C) Identifying tanks. Within 30 days of the effective date of this section, or within 30 days of a subsequent tank installation, the owner and operator of USTs regulated under this section are responsible for ensuring that a legible tag, label, or marking is permanently applied upon or affixed to either the top of the fill tube or to a nonremovable point in the immediate area of the fill tube for each regulated UST at the facility. That tag, label, or marking must clearly and legibly show the designated UST identification number of that UST at that facility and that identification number must be identical to the UST identification number listed on the UST registration and self-certification form filed with the agency under this subsection. All UST identification numbers at a given facility must be numeric, must begin with the number one, and must proceed sequentially without skipping numbers (i.e., 1, 2, 3 . . . ). In addition, for each compartmented UST where a single UST has a separate fill tube for each internal compartment, the numeric UST identification number must be the same for each fill tube serving that single UST; however, to allow differentiation between compartments on the UST registration and self-certification form and at the facility, that common UST identification number must also be followed by a single additional alphabetic identifier for each compartment, beginning with the letter "A" and proceeding sequentially without skipping letters (i.e., 1A, 1B, 1C . . .).(D) Temporary delivery authorization.(i) Upon receipt of a TCEQ construction notification form indicating the pending installation of a new or replacement UST system(s), or indicating that a UST system temporarily out-of-service under §334.54 of this title will be returned to service, the agency will issue a temporary delivery authorization for those tank systems.(ii) The temporary delivery authorization is valid for no more than 90 days after the first delivery of regulated substance into the UST system described in clause (i) of this subparagraph.(iii) The UST owner and operator are responsible for maintaining complete and accurate records of the date of the first deposit of regulated substances into the UST system(s), as well as the date that the initial 90-day period expires. The bill of lading for the first delivery of regulated substance into the UST system at the facility must be attached to the temporary delivery authorization for that facility.(6) Revocation of delivery certificate.(A) Grounds for revocation of delivery certificate. The commission may revoke a delivery certificate for reasons including, but not limited to:(i) when the executive director determines that any of the information contained or referenced in the compliance self-certification portions of the UST registration and self-certification form was inaccurate at the time the self-certification was made;(ii) when the tank owner and/or operator submits compliance self-certification information to the executive director which he knows, or reasonably should have known, to be false or deceptive; and(iii) for any other reason which the commission finds to constitute good cause for revocation.(B) Procedures for revocation of delivery certificate.(i) A proceeding to revoke a delivery certificate must be commenced by:(I) the executive director through the filing of a petition; or(II) the commission on its own motion.(ii) If the executive director determines good cause exists to revoke a delivery certificate, the executive director shall file a petition with the chief clerk and provide notice to the owner and operator of the tank(s) in question. To the extent possible, the procedures required to assess administrative penalties under Chapter 70 of this title (relating to Enforcement) shall be followed to revoke a delivery certificate under this subchapter.(iii) In response to a petition, or on its own motion to revoke a delivery certificate, the commission may:(I) revoke a certificate; and(II) issue any other orders permitted by law.(iv) Revocation of a delivery certificate is cumulative of any other remedies available to the agency by law.</content><note type="source"><p>Source Note: The provisions of this §334.8 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective November 18, 2004, 29 TexReg 10532; amended to be effective November 9, 2006, 31 TexReg 9034; amended to be effective October 30, 2008, 33 TexReg 8790.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.9"><num value="334.9">§334.9</num><heading>Seller's Disclosure</heading><content>Effective on and after the effective date of this subchapter, any person who sells or otherwise legally conveys a tank (or tank system) which is designed or intended to be installed as an underground storage tank (UST) or an aboveground storage tank (AST) must provide the purchaser (or grantee) with written notification of a tank owner's obligations relative to the agency's tank registration, compliance self-certification, and construction/installation notification provisions under §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems); §334.127 of this title (relating to Registration for Aboveground Storage Tanks (ASTs)); §334.8 of this title (relating to Certification for Underground Storage Tanks (USTs) and UST Systems); §334.6 of this title (relating to Construction Notification for Underground Storage Tanks (USTs) and UST Systems); and §334.126 of this title (relating to Installation Notification for Aboveground Storage Tanks (ASTs)).(1) The written notification must include the names and addresses of the seller (or grantor) and the purchaser (or grantee), the number of tanks involved, a description of each tank (capacity, tank material, and product stored, if applicable), and the agency's designated facility identification number (if the entire facility is being conveyed).(2) This notification requirement applies to any transfers or conveyances of a new or used tank from one person to another person, and also applies to the sales of real property where USTs and/or ASTs are located.(3) The written notification must be provided by the seller (or grantor) to the purchaser (or grantee) prior to the conveyance of the tanks, or prior to the time of the real property closing, as applicable.(4) For the purpose of fulfilling the disclosure requirements of this section as to USTs, the following language (together with the information in paragraph (1) of this section) is deemed sufficient: "The underground storage tank(s) which are included in this conveyance are presumed to be regulated by the Texas Commission on Environmental Quality and may be subject to certain registration, compliance self-certification, construction notification, and other requirements found in Title 30 Texas Administrative Code, Chapter 334."(5) For the purpose of fulfilling the disclosure requirements of this section as to ASTs, the following language (together with the information in paragraph (1) of this section) is deemed sufficient: "The aboveground storage tank(s) which are included in this conveyance are presumed to be regulated by the Texas Commission on Environmental Quality and may be subject to certain registration, delivery prohibition, installation notification, and other requirements found in Title 30 Texas Administrative Code, Chapter 334."</content><note type="source"><p>Source Note: The provisions of this §334.9 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.10"><num value="334.10">§334.10</num><heading>Reporting and Recordkeeping</heading><content>(a) Reporting. Owners and operators of underground storage tank (UST) systems must assure that all reporting and filing requirements in this chapter are met, including the following (as applicable):(1) construction notification, in accordance with §334.6 of this title (relating to Construction Notification for Underground Storage Tanks (USTs) and UST Systems);(2) application for approval of any proposed UST system on the regulated zones of the Edwards Aquifer, in accordance with §334.6(a)(3) of this title and Chapter 213 of this title (relating to Edwards Aquifer);(3) registration of UST systems and changes in information, in accordance with §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems);(4) certification of construction activities, financial assurance, and compliance self-certification in accordance with §334.8 of this title (relating to Certification for Underground Storage Tanks (USTs) and UST Systems);(5) request for approval of any variance or alternative procedure, in accordance with §334.43 of this title (relating to Variances and Alternative Procedures);(6) documentation of release determination or site assessment conducted when a UST system is permanently removed from service, in accordance with §334.55(a)(6) of this title (relating to Permanent Removal from Service);(7) payment of UST fees, in accordance with Subchapter B of this chapter (relating to Underground Storage Tank Fees);(8) reports, plans, and certifications related to suspected and confirmed releases of regulated substances, including:(A) release reports and notifications, in accordance with §334.72 of this title (relating to Reporting of Suspected Releases), §334.75 of this title (relating to Reporting and Cleanup of Surface Spills and Overfills), and §334.76 of this title (relating to Initial Response to Releases);(B) report and certification of site check methods, in accordance with §334.74(3) of this title (relating to Release Investigation and Confirmation Steps);(C) initial abatement report, in accordance with §334.77(b) of this title (relating to Initial Abatement Measures and Site Check);(D) initial site assessment report, in accordance with §334.78(c) of this title (relating to Site Assessment);(E) non-aqueous phase liquid removal report, in accordance with §334.79(4) of this title (relating to Removal of Non-Aqueous Phase Liquids (NAPLs));(F) soil and groundwater contamination information, in accordance with §334.80(b) of this title (relating to Investigation for Soil and Groundwater Cleanup);(G) corrective action plan, in accordance with §334.81 of this title (relating to Corrective Action Plan);(H) notification of cleanup initiation, in accordance with §334.81(e) of this title;(I) certification of compliance with corrective action plan, in accordance with §334.81(h) of this title; and(J) public notices related to corrective action plans, in accordance with §334.82(b) of this title (relating to Public Participation);(9) notifications and reports relating to financial assurance requirements, in accordance with Chapter 37, Subchapter I of this title (relating to Financial Assurance for Petroleum Underground Storage Tank Systems); and(10) any other reports, filings, notifications, or other submittals required by this chapter, or otherwise required by the agency to demonstrate compliance with the provisions of this chapter. When agency requirements specify documents that must be prepared by, or prepared under, the supervision of a duly licensed professional engineer, a duly licensed professional geoscientist, or a duly licensed professional surveyor, those documents must be prepared in accordance with all requirements of statute and rule applicable to that respective professional.(b) Recordkeeping.(1) General recordkeeping requirements.(A) Owners and operators of UST systems are responsible for developing and maintaining all records required by the provisions of this chapter.(B) Except as provided in subparagraphs (C) and (D) of this paragraph, legible copies of all required records pertaining to a UST system must be maintained in a secure location on the premises of the UST facility, must be immediately accessible for reference and use by the UST system operator, and must be immediately available for inspection upon request by agency personnel.(C) Except as provided in clause (v) of this subparagraph, in the event that copies of the required records cannot reasonably be maintained on the premises of the UST facility, then such records may be maintained at a readily accessible alternate site, provided that the following conditions are met.(i) If the UST system is in operation, the records must be readily accessible for reference and use by the UST system operator.(ii) The records must be readily accessible and available for inspection upon request by agency personnel.(iii) The owner or operator must provide the following information (in writing) to the agency's central office and to the agency's appropriate regional office:(I) the specific location where the required records are maintained; and(II) the name, address, and telephone number of the authorized custodian of such records.(iv) The filing of the written information required in clause (iii) of this subparagraph must be accomplished no later than October 29, 1989, 30 days after a UST installation or replacement has been completed, or 30 days after the UST records are moved to an alternate site, whichever is later or applicable, as provided in §334.7(d) of this title.(v) The conditional authorization otherwise allowed under this subparagraph for records maintenance at an alternative, off-premises location is not applicable to the UST delivery certificate (or temporary delivery authorization, if applicable) issued by the agency under §334.8(c) of this title. This UST delivery certificate must be maintained on the premises of all facilities with regulated USTs, must be posted by the UST system operator, and must be visible to the person(s) performing deliveries to the UST system.(D) For UST systems which have been permanently removed from service in accordance with the applicable provisions of §334.55 of this title, the facility owner may submit the appropriate records required by this chapter to the agency in lieu of maintaining the records on the premises or at an alternative site, provided that the following conditions are met:(i) the facility is no longer operated in a manner that requires the underground storage of regulated substances, and all UST systems at the facility have been permanently removed from service;(ii) the facility owner must provide written justification adequate to explain why such records cannot be maintained on the premises of the UST facility or at a readily accessible alternative site; and(iii) the records must be submitted at one time in one package for each UST facility, and the records must be appropriately labeled with the UST facility location information and the UST facility identification number.(2) Required records and documents. Owners and operators of UST systems must assure that all recordkeeping requirements in this chapter are met, including the following records and documentation (as applicable).(A) Legible copies of the following general records must be maintained for the operational life of the UST system:(i) original and amended registration documents, in accordance with §334.7 of this title;(ii) original and amended certifications for UST installations and financial assurance, in accordance with §334.8 of this title;(iii) notification to UST purchaser, in accordance with §334.9 of this title (relating to Seller's Disclosure).(B) Legible copies of applicable records and documents related to technical standards for UST systems must be maintained in accordance with the following provisions:(i) application documents and the agency's approval letter for any variances or alternative procedures, in accordance with §334.43 of this title;(ii) records demonstrating compliance with technical standards and installation standards for new UST systems, in accordance with §334.45(f) of this title (relating to Technical Standards for New Underground Storage Tank Systems) and §334.46(i) of this title (relating to Installation Standards for New Underground Storage Tank Systems);(iii) records demonstrating compliance with the minimum upgrading requirements for existing UST systems, in accordance with §334.47(e) of this title (relating to Technical Standards for Existing Underground Storage Tank Systems);(iv) operation and maintenance records, in accordance with §334.42 and §334.48 of this title (relating to General Standards; and General Operating and Management Requirements) including:(I) documentation of compliance with operational requirements for release detection equipment;(II) documentation of periodic testing of spill prevention equipment and containment sumps used for interstitial monitoring of piping and periodic inspection of overfill prevention equipment; and(III) documentation of periodic operation and maintenance walkthrough inspections.(v) corrosion protection records, in accordance with §334.49(e) of this title (relating to Corrosion Protection);(vi) release detection records, in accordance with §334.50(e) of this title (relating to Release Detection);(vii) spill and overfill control records, in accordance with §334.51(c) of this title (relating to Spill and Overfill Prevention and Control);(viii) records for repairs and relining of a UST system, in accordance with §334.52(e) of this title (relating to Underground Storage Tank System Repairs and Relining);(ix) records for reuse of used tanks, in accordance with §334.53(c) of this title (relating to Reuse of Used Tanks);(x) records for temporary removal of UST systems from service, in accordance with §334.54(e)(4) of this title (relating to Temporary Removal from Service);(xi) records for permanent removal of UST systems from service, in accordance with §334.55(f) of this title;(xii) compatibility data related to the stored substances and the materials of construction in accordance with the requirements for documentation of biofuel compatibility in §334.42(b)(2) of this title.(C) Legible copies of all required financial assurance records must be maintained in accordance with the applicable provisions of Chapter 37, Subchapter I of this title.(D) Legible copies of previous and current registration and self-certification forms required to be filed annually with the agency under §334.8(c) of this title, as well as UST delivery certificates, must be maintained for at least five years from the original date of submittal.</content><note type="source"><p>Source Note: The provisions of this §334.10 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.12"><num value="334.12">§334.12</num><heading>Other General Provisions</heading><content>(a) Other regulations. Compliance with the provisions of this chapter by an owner or operator of an underground storage tank (UST) system or aboveground storage tank (AST) system does not relieve such owner or operator from the responsibility of compliance with any other regulations directly and/or indirectly affecting such tanks and the stored regulated substances, including, but not necessarily limited to, all applicable regulations legally promulgated by the United States Environmental Protection Agency, United States Occupational Safety and Health Administration, United States Department of Transportation, United States Nuclear Regulatory Commission, United States Department of Energy, Texas Department of Health, State Board of Insurance, Texas Commission on Fire Protection, Railroad Commission of Texas, Texas Department of Agriculture, State Comptroller, Texas Department of Public Safety, Texas Commission on Environmental Quality , and any other federal, state, and local governmental agencies or entities having appropriate jurisdiction.(b) Owner and operator responsibility.(1) Owners and operators are responsible for any violations or noncompliant activities resulting from the actions or inactions by any installer, contractor, operator, or other person who is employed or otherwise engaged by an owner or operator of a UST or an AST.(2) The commission shall consider the person who is in day-to-day control of a petroleum storage tank system at a site that is in violation of applicable statute or agency regulations to be the:(A) person primarily responsible for taking corrective action, for corrective action costs, for receiving a notice of violation, or for paying a penalty assessed; and(B) primary subject of an enforcement action or order.(3) The liability of certain taxing units as owners or operators of USTs and ASTs is conditionally and specifically limited, in accordance with the provisions and conditions of Texas Water Code (TWC), §26.3516 (relating to Limits on Liability of Taxing Units).(4) The liability of certain lenders as owners or operators of USTs and ASTs is conditionally and specifically limited, in accordance with the provisions and conditions of TWC, §26.3514 (relating to Limits on Liability of Lender).(5) The liability of certain corporate fiduciaries as owners or operators of USTs and ASTs is conditionally and specifically limited, in accordance with the provisions and conditions of TWC, §26.3515 (related to Limits on Liability of Corporate Fiduciary).(c) Inspections, monitoring, and testing.(1) For the purposes of developing or assisting in the development of any regulation, conducting any study, or enforcing this chapter, an owner and/or operator of a UST or an AST, on the request of the agency, must:(A) furnish information relating to the tank, including tank equipment and contents; and(B) permit a designated agent or employee of the agency at all reasonable times to have access to and to copy all records relating to the tanks.(2) For the purposes of developing or assisting in the development of a regulation, conducting a study, or enforcing the provisions of this chapter, the agency's designated agent or employee may:(A) enter at reasonable times an establishment or place in which a UST or an AST is located;(B) inspect and obtain samples of a regulated substance contained in the tank from any person; and(C) conduct monitoring or testing of the tanks, associated equipment, contents, or surrounding soils, air, surface water, or groundwater.(3) The agency may order an owner or operator of a UST or an AST to conduct monitoring and testing if the agency determines that there is reasonable cause to believe that a release has occurred in the area in which the UST or AST is located.</content><note type="source"><p>Source Note: The provisions of this §334.12 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.14"><num value="334.14">§334.14</num><heading>Memorandum of Understanding between the Attorney General of Texas and the Texas Natural Resource Conservation Commission</heading><content>(a) Applicability. This MOU applies to civil enforcement proceedings and complaints filed on storage tanks subject to this chapter. Pursuant to the Texas Water Code, §5.104, the Texas Natural Resource Conservation Commission adopts an MOU between the Texas Natural Resource Conservation Commission (TNRCC) and the attorney general of Texas. The MOU contains the TNRCC's and the attorney general's interpretation concerning intervention in the civil enforcement process under the Texas Water Code. This section applies as follows.(1) The Texas Water Commission (now the Texas Natural Resource Conservation Commission, TNRCC) was designated as the state agency for the regulation of underground storage tanks by enactment of Senate Bill 779 of the 70th Texas Legislature, 1987.(2) The Texas Water Code authorizes the Texas Natural Resource Conservation Commission to have instituted civil suits for injunctive relief and the assessment and recovery of a civil penalty, whenever it appears that a person has violated, or is violating or threatening to violate, any provision of the Texas Water Code, or of any rule, permit, or other order of the Texas Natural Resource Conservation Commission.(3) The Texas Water Code provides that at the request of the executive director of the Texas Natural Resource Conservation Commission, the attorney general of Texas shall institute and conduct a suit in the name of the State of Texas for injunctive relief or to recover a civil penalty, or for both injunctive relief and penalty.(4) Federal regulations promulgated by the United States Environmental Protection Agency pursuant to the Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976, Subtitle I, require that any state agency administering the Underground Storage Tank Program authorized under that Act provide for public participation in the state enforcement process.(5) All citizen complaints filed, either orally or in writing, that relate to underground storage tanks will be investigated timely and thoroughly by the Texas Natural Resource Conservation Commission. Citizen complaint responses will be first initiated by attempting to establish telephone contact with the complainant within 48 hours of receipt of the complaint, and concurrently beginning whatever records review is necessary. Upon completion of the investigation, the complainant will be informed in writing of the results. In addition, the complainant will be apprised of the ultimate resolution of the problem. The executive director of the Texas Natural Resource Conservation Commission shall keep a complaint file in accordance with §337.4 of this title (relating to Enforcement).(6) Notice of proposed settlements of civil enforcement actions that relate to underground storage tanks will be published by the attorney general of Texas in the Texas Register (except where immediate action is necessary to adequately protect human health and the environment) and that opportunity will be provided for the public to comment on such proposed settlements.(7) Nothing in this agreement shall be construed to limit or impair the attorney general's right to control and direct litigation on behalf of the state.(8) The attorney general will not oppose intervention where permissive intervention may be authorized by statute, rule, or regulation into any civil suit involving the State of Texas relating to violations of the Underground Storage Tank Program by any citizen having an interest which is or may be adversely affected.(9) The attorney general, on behalf of the State of Texas, will consent to a proposed judgment in an action to enjoin violations of the Underground Storage Tank Program only after the publication of notice which provides at least 30 days for public comment on the proposed judgment prior to its entry by the court, provided that the attorney general may permit an exception to the 30-day comment period if a settlement or judgment is required to avoid delays that would adversely affect public health or the environment.(b) Execution by all signatories. After execution by all signatories, this agreement shall remain in effect until rescinded by formal action of either agency.(c) Effective date. The effective date of the memorandum of understanding is the effective date of this rule adoption.</content><note type="source"><p>Source Note: The provisions of this §334.14 adopted to be effective June 24, 1994, 19 TexReg 4555.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.15"><num value="334.15">§334.15</num><heading>Limits on Liability of Lender</heading><content>(a) A lender, as defined in §334.2 of this title (relating to Definitions), is not liable as an owner or operator under this chapter solely because the lender holds indicia of ownership to protect a security or lienhold interest in property. A lender is not liable under this subsection if:(1) such lender has a security interest in a personal property or in a fixture that is not attached to the real estate or a lienhold interest on the real estate or fixture that is attached to the real estate as security for a loan to finance the acquisition or development of property, to finance the removal, repair, replacement, or upgrading of a regulated tank, or to finance the performance of corrective action in response to a release of a regulated substance from a tank, and the security or lienhold interest is in:(A) an underground storage tank (UST) or aboveground storage tank (AST);(B) real property on which an UST or AST is located; or(C) in any other personal property attached to or located on property on which an UST or AST is located; or(2) the real or personal property described in paragraph (1)(A)-(C) of this subsection constitutes collateral for a commercial loan.(b) A lender that exercises control over property described under subsection (a) of this section before foreclosure to preserve the collateral or to retain revenues from the property for the payment of debt, or that otherwise exercises the control of a mortgagee in possession, is not liable as an owner or operator under this chapter unless that control leads to action that the executive director finds is causing or exacerbating contamination associated with the release of a regulated substance from a tank located on the property.(c) A lender that has a bona fide security or lienhold interest in any real or personal property as described under subsection (a) of this section and that forecloses on or receives an assignment or deed in lieu of foreclosure and becomes the owner of that real or personal property is not liable as an owner or operator under this chapter if the lender:(1) permanently removes from service any USTs or ASTs on the property. A tank is permanently removed from service when the actions defined in §334.55(b) of this title (relating to Permanent Removal from Service) have been properly completed;(2) undertakes, and with due diligence in a timely and persistent manner completes, corrective action in response to any release from those tanks. A lender acts with due diligence when the lender executes the corrective action in conformance with Subchapter D of this title (relating to Release Reporting and Corrective Action), or as otherwise directed by the executive director; and(3) performs the removal and corrective action in accordance with all applicable commission rules.(d) A lender acting under subsection (c) of this section must begin removal of the tank from service or corrective action within 90 days after the date on which the lender becomes the owner of the property.(e) A lender described by subsection (a) of this section which forecloses on or receives an assignment or deed in lieu of foreclosure on real or personal property described in subsection (a) of this section is not liable as an owner or operator under this chapter because the lender sells, releases, liquidates, or winds up operations and takes measures to preserve, protect, or prepare a secured AST or UST before sale or other disposition of the storage tank or the property if the lender:(1) did not participate in the management of an AST or UST or real or personal property described by subsection (a) of this section before foreclosure or its equivalent on the storage tank or the property; and(2) establishes, as provided by subsection (f) of this section, that the ownership indicia maintained after foreclosure continue to be held primarily to protect a security interest.(f) A lender may establish that the ownership indicia maintained after foreclosure continues to be held primarily to protect a security interest if, within 12 months after foreclosure, the lender:(1) lists the AST or UST, or the facility or property on which the tank is located, with a broker, dealer, or agent who deals in that type of property; or(2) advertises the AST or UST for sale or other disposition, at least monthly, in:(A) a real estate publication;(B) a trade or other publication appropriate for the AST or UST being advertised; or(C) a newspaper of general circulation in the area in which the AST or UST is located.(g) For purposes of subsections (f) and (h) of this section the 12-month period begins:(1) when the lender acquires good and indefeasible title, if the lender, after the expiration of any redemption period or other waiting period required by law, was acting diligently to acquire such title; or(2) on the date of foreclosure or its equivalent, if the lender does not act diligently to acquire good and indefeasible title.(h) A lender that meets the conditions of subsection (f) nonetheless becomes liable as owner and/or operator at the end of the 12-month period, or when the lender no longer holds ownership indicia primarily to protect its security interest, whichever occurs first. If a lender outbids, rejects, or does not act on an offer of fair consideration for the AST or UST or the facility or property on which the storage tank is located, it is presumed that the lender is not holding the ownership indicia primarily to protect the security interest unless the lender is required, in order to avoid liability under federal or state law, to make the higher bid, obtain the higher offer, or seek or obtain an offer in a different manner.</content><note type="source"><p>Source Note: The provisions of this §334.15 adopted to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.16"><num value="334.16">§334.16</num><heading>Limits on Liability of Corporate Fiduciary</heading><content>(a) A corporate fiduciary or its agent(s) is not liable in an individual capacity as an owner or operator under this chapter solely because:(1) the corporate fiduciary or its agent has legal title to real or personal property for purposes of administering a trust or estate of which the property is a part; or(2) the corporate fiduciary or its agent does not have legal title to the real or personal property but operates or manages the property under the terms of an estate or trust of which the property is a part.(b) Subsection (a) of this section does not relieve a trust, estate, or beneficiary of any liability the trust, estate, or beneficiary may have as an owner or operator under this chapter.</content><note type="source"><p>Source Note: The provisions of this §334.16 adopted to be effective November 8, 1995, 20 TexReg 8800.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.17"><num value="334.17">§334.17</num><heading>Privatization of Storage Tank Program</heading><content>The commission may retain agents for the performance of services related to the duties and administrative tasks of this chapter. The agent(s) will act under the direction of the executive director.</content><note type="source"><p>Source Note: The provisions of this §334.17 adopted to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.18"><num value="334.18">§334.18</num><heading>Limits on Liability of Taxing Unit</heading><content>(a) Authorization and applicability. The provisions of this section are authorized by Texas Water Code, §26.3516 (relating to Limits on Liability of Taxing Units), and apply only to taxing units as defined in the Property Tax Code, §1.04(12) that:(1) This section applies to a taxing unit that has foreclosed an ad valorem tax lien on real property on which an underground storage tank (UST) or aboveground storage tank (AST) is located, or on any other personal property attached to or located on property on which a UST or AST is located, as security for payment of ad valorem taxes.(2) A taxing unit is not liable as an owner or operator under this chapter solely because the taxing unit holds indicia of ownership because of a tax foreclosure sale under the Tax Code.(b) Removal from service and corrective action requirements. If after foreclosure of an ad valorem tax lien on real property on which an AST or an UST is located, a taxing unit performs or causes to be performed any UST or AST removal from service or corrective action activities, then the taxing unit must perform corrective action in accordance with the standards and procedures outlined in Subchapter D of this chapter (relating to Release Reporting and Corrective Action).(c) Limits on liability of a taxing unit.(1) A taxing unit is not liable as an owner or operator under this chapter solely because the taxing unit sells, releases, liquidates, or winds up operations and takes measures to preserve, protect, or prepare the secured AST or the secured UST before the sale or other disposition of either the storage tank, the real property on which the storage tank is located, or any other personal property attached to or located on the real property on which the storage tank is located, provided that the taxing unit:(A) did not participate in the management of either the AST or UST, the real property on which this storage tank is located, or any other personal property attached to or located on the real property on which the storage tank is located, before the foreclosure of, or an equivalent action on, either the storage tank or the real or personal property; and(B) establishes, as provided by paragraph (2) of this subsection, that the ownership indicia maintained after foreclosure continue to be held primarily to protect a payment of ad valorem taxes.(2) A taxing unit may establish that the ownership indicia maintained after foreclosure continue to be held primarily to protect the payment of ad valorem taxes if the taxing unit either:(A) lists the AST, UST, or the facility or real property on which the storage tank is located, with broker, dealer, or agent who deals in that type of property; or(B) advertises the AST or UST for sale or other disposition in either:(i) a real estate publication;(ii) a trade or other publication appropriate for the AST or UST being advertised; or(iii) a newspaper of general circulation in the area in which the AST or UST is located.</content><note type="source"><p>Source Note: The provisions of this §334.18 adopted to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scA/s334.19"><num value="334.19">§334.19</num><heading>Fee on Delivery of Petroleum Product</heading><content>(a) A fee is imposed on the delivery of a petroleum product on withdrawal from bulk of that product as provided by this subsection and pursuant to Texas Water Code (TWC), §26.3574. "Withdrawal from bulk" means the removal of a petroleum product from a bulk facility storage tank for delivery directly into a cargo tank or a barge to be transported to another location other than another bulk facility for distribution or sale in this state. Each supplier on withdrawal from bulk of a petroleum product shall collect from the person who orders the withdrawal a fee in an amount determined as follows, subject to future adjustments made under subsection (b) of this section:(1) not more than $3.75 for each delivery into a cargo tank having a capacity of less than 2,500 gallons.(2) not more than $7.50 for each delivery into a cargo tank having a capacity of 2,500 gallons or more but less than 5,000 gallons.(3) not more than $11.75 for each delivery into a cargo tank having a capacity of 5,000 gallons or more but less than 8,000 gallons.(4) not more than $15.00 for each delivery into a cargo tank having a capacity of 8,000 gallons or more but less than 10,000 gallons; and(5) not more than $7.50 for each increment of 5,000 gallons or any part thereof delivered into a cargo tank having a capacity of 10,000 gallons or more.(b) TCEQ may adjust the fee rates in subsection (a) of this section through an appropriate notification process, such as but not limited to Texas Register publication with public comment, based on the agency's cost of administering this chapter in accordance with TWC, §26.3574(b-1), but not to exceed the maximum rates set by TWC, §26.3574. The projected rates will account for the biennial appropriations to the agency from the Petroleum Storage Tank Remediation Account Number 655, as well as fund obligations for Account Number 655, with projected revenue from the fee based on such factors as estimated fuel sales, population growth, consumer price index, and gas production.</content><note type="source"><p>Source Note: The provisions of this §334.19 adopted to be effective April 19, 2012, 37 TexReg 2674; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c334/scB"><num value="B">SUBCHAPTER B</num><heading>UNDERGROUND STORAGE TANK FEES</heading><section identifier="/us/state/tx/tac/t30/p1/c334/scB/s334.21"><num value="334.21">§334.21</num><heading>Fee Assessment</heading><content>(a) Annual facility fees shall cease to be assessed, effective September 1, 2007, and shall not be assessed until such time as reinstated by the commission at an amount determined appropriate by the commission, however, prior owing tank fees are still due as further described. Except as provided in subsection (e) of this section, an annual facility fee of $50 is assessed for each underground storage tank (UST) subject to the registration provisions of §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems). The fees shall be billed to and paid by the owner of the tank.(b) Payment of annual facility fees is due within 30 days of the date the agency sends a statement of the assessment to the tank owner. Annual facility fees must be paid by check, certified check, or money order made payable to the Texas Commission on Environmental Quality. Payments must be mailed to the address specified in the billing statement.(c) The agency shall establish a schedule for billing of annual facility fees. The amount of the fee to be paid, regardless of the actual billing date, shall be based on the number of regulated USTs in place on or after the first day of each fiscal year (September 1).(d) An agency of the federal government is not subject to an assessment under this section for any revenue used to match federal funds for the remediation of leaking USTs. In any fiscal year in which fee revenues are used to match federal funds for remediation of a leaking UST, the agency shall determine the prorated contribution of each federal UST facility to the leaking UST trust fund in that year. The assessment of annual UST facility tank fees in the following year shall be adjusted by crediting the account of each federal facility for the excess amount paid in the previous year.(e) An annual facility fee shall not be assessed for an UST which is owned, operated, or maintained by a common carrier railroad, as provided in the Texas Water Code, §26.344(g).</content><note type="source"><p>Source Note: The provisions of this §334.21 adopted to be effective June 25, 1990, 15 TexReg 3429; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective October 30, 2008, 33 TexReg 8790.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scB/s334.22"><num value="334.22">§334.22</num><heading>Failure To Make Payment</heading><content>(a) Annual facility fees must be paid at the time and in the manner and amount provided by this subchapter.(b) The agency shall impose interest and penalties on owners who fail to make payment of the annual facility fees imposed under this subchapter when due in accordance with Chapter 12 of this title (relating to Payment of Fees).</content><note type="source"><p>Source Note: The provisions of this §334.22 adopted to be effective June 25, 1990, 15 TexReg 3429; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective February 14, 1997, 22 TexReg 1328; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scB/s334.23"><num value="334.23">§334.23</num><heading>Disposition of Fees, Interest, and Penalties</heading><content>The agency shall deposit any annual facility fees collected, together with all interest and penalties collected for late payment, in the state treasury to the credit of the storage tank fund.</content><note type="source"><p>Source Note: The provisions of this §334.23 adopted to be effective June 25, 1990, 15 TexReg 3429; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c334/scC"><num value="C">SUBCHAPTER C</num><heading>TECHNICAL STANDARDS</heading><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.41"><num value="334.41">§334.41</num><heading>Applicability</heading><content>(a) Except as provided under subsection (b) of this section, an underground storage tank (UST) shall be subject to all provisions of this subchapter if such tank meets the general applicability requirements of §334.1(b) of this title (relating to Purpose and Applicability).(b) The provisions of this subchapter shall not apply to any of the following types of UST systems:(1) in-ground hydraulic lifts which use a compressed air/hydraulic fluid system (regardless of size); and(2) Any UST system which is covered under the partial exclusion provisions of §334.4(b) of this title (relating to Exclusions for Underground Storage Tanks (USTs) and UST Systems).(c) Any UST which is specifically excluded or exempted from the provisions of this subchapter under §334.41(b) of this title (relating to Applicability), but which is otherwise subject to any of the remaining provisions of this chapter, shall conform with the minimum design and operation requirements of §334.5(a) of this title (relating to General Prohibitions for Underground Storage Tanks (USTs) and UST systems).(d) For the purposes of this subchapter only, a new UST system (or new UST system) shall refer to any system for which installation has commenced on or after September 29,1989.</content><note type="source"><p>Source Note: The provisions of this §334.41 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.42"><num value="334.42">§334.42</num><heading>General Standards</heading><content>(a) All components of any new or existing underground storage tank (UST) system subject to the provisions of this subchapter shall be designed, installed, maintained, and operated in a manner that will prevent releases of regulated substances due to structural failure or corrosion.(b) Compatibility.(1) Owners and operators must use a UST system made of or lined with materials that are compatible with the substance stored in the UST system.(2) Biofuels.(A) Owners and operators must notify the executive director at least 30 days prior to switching to a regulated substance containing greater than 10% ethanol or greater than 20% biodiesel in accordance with §334.6(b)(1) of this title (relating to Construction Notification for Underground Storage Tanks (USTs) and UST Systems). In addition, owners and operators with UST systems storing these regulated substances must meet one of the following:(i) demonstrate compatibility of the UST system (including the tank, piping, containment sumps, pumping equipment, release detection equipment, spill equipment, and overfill equipment). Owners and operators may demonstrate compatibility of the UST system by using one of the following options:(I) certification or listing of UST system equipment or components by a nationally recognized, independent testing laboratory for use with the regulated substance stored (such as American Petroleum Institute Recommended Practice 1626, "Storing and Handling Ethanol and Gasoline-Ethanol Blends at Distribution Terminals and Filling Stations."); or(II) for equipment or component manufacturer approval, the manufacturer's approval must be in writing, indicate an affirmative statement of compatibility, specify the range of biofuel blends the equipment or component is compatible with, and be from the equipment or component manufacturer; or(ii) use another option determined by the executive director to be no less protective of human health and the environment than the options listed in this subsection.(B) Owners and operators must maintain records in accordance with §334.10(b) of this title (relating to Reporting and Recordkeeping) documenting compliance with subparagraph (A)(i) of this paragraph for as long as the UST system is used to store the regulated substance.(c) The owners and operators of UST systems subject to the provisions of this subchapter and those persons and/or business entities who engage in, perform, or supervise the installation, repair, or removal of UST systems shall be responsible for ensuring that those UST systems are designed, installed, repaired, removed, and operated in accordance with the provisions of this subchapter, as provided under §334.12(b) of this title (relating to Other General Provisions) and under the provisions of Chapter 70 of this title (relating to Enforcement).(d) When provisions of this subchapter require compliance with a specific code or standard of practice developed by a nationally recognized association or independent testing laboratory, the most recent version of the referenced code in effect at the time of the regulated UST activity shall be applicable.(e) Compliance with the provisions of this subchapter shall not relieve an owner or operator of a UST system from compliance with other applicable regulations legally developed by other governmental entities. This requirement is more fully discussed in §334.12(a) of this title.(f) Unless otherwise stated in a variance approved by the agency in accordance with §334.43 of this title (relating to Variances and Alternative Procedures), the requirements of this subchapter shall take precedence if and when such requirements are determined to be in conflict with any provisions contained in the following:(1) any code or standard of practice developed by a nationally recognized association or independent testing laboratory; and(2) the manufacturer's specifications and instructions for installation and operation of UST equipment.(g) Any underground component of a UST system installed on or after September 29, 1989, shall be properly protected from corrosion by one or more of the allowable methods in §334.49(b) of this title (relating to Corrosion Protection).(h) Any new tank or piping or dispenser installed as part of a UST system on or after January 1, 2009, shall incorporate secondary containment meeting the applicable requirements of §334.45(d) of this title (relating to Technical Standards for New Underground Storage Tank Systems).(i) Any sumps (including dispenser sumps) or manways installed prior to January 1, 2009, which are utilized as an integral part of a UST release detection system to monitor the interstitial space of a secondarily contained piping system, and any spill containment equipment installed at any time, which are associated with a UST system must be inspected at least once every 60 days to assure that their sides, bottoms, and any penetration points are maintained liquid tight. Any liquid or debris found in them during that inspection or an agency or agency-authorized inspection must be removed within 96 hours of discovery and properly disposed. This requirement applies through December 31, 2020, after which the requirements in §334.48(h) of this title (relating to General Operating and Management Requirements), shall apply.</content><note type="source"><p>Source Note: The provisions of this §334.42 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective October 30, 2008, 33 TexReg 8790; amended to be effective March 17, 2011, 36 TexReg 1675; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.43"><num value="334.43">§334.43</num><heading>Variances and Alternative Procedures</heading><content>(a) Prior to proceeding in any manner that differs from the requirements of this subchapter, the owner or operator of an underground storage tank (UST) system shall secure written agency approval in the form of a variance in accordance with this section.(b) The agency shall have authority to review and approve requests for variances from the requirements in this subchapter. The agency will approve such requests only if the owner or operator can demonstrate to appropriate agency staff that the proposed alternative procedure and/or equipment will result in an UST system that is no less protective of human health and safety and the environment than the requirement(s) for which the variance is sought.(c) An owner or operator may submit a request for a variance when one or more of the following situations is applicable:(1) when conformance with a requirement in this subchapter is considered not practicable due to the type, design, capacity, material stored, or use of the UST system; or(2) when new or alternative products, equipment, methods, and/or procedures appropriate for use with UST systems are not specifically authorized by the provisions of this subchapter.(d) Any request to the agency for approval of a variance shall be made in writing, shall be signed and dated by the owner or operator, and shall be accompanied by the following additional documentation:(1) written concurrence by the site or facility owner, if different from the tank owner;(2) complete project identification, including:(A) facility name, location, and UST facility identification number (if known);(B) owner's name, address, and telephone number;(C) name, address, and telephone number of owner's/operator's authorized representative; and(D) proposed date for implementation of the alternative procedure and/or equipment;(3) sufficient documentation to describe or illustrate the alternative procedure and/or equipment, such as:(A) plans, drawings, and detail sheets (drawn to scale);(B) design and construction specifications; and(C) equipment manufacturers' specifications, operating instructions, and warranty information;(4) documentation and supporting data which demonstrates, to the satisfaction of agency staff, the reliability and appropriateness of the proposed procedure and/or equipment, such as:(A) results of tests or studies conducted by an equipment manufacturer, independent consultant, or nationally recognized association or independent testing laboratory; and(B) results of previous experience involving use of the alternative procedure and/or equipment;(5) complete explanation of the reasons why the requested proposed procedure and/or equipment are considered preferable to the requirement for which the variance is sought, or why that requirement is considered impracticable; and(6) documentation that demonstrates, to the satisfaction of agency staff, that use of the proposed alternative procedure and/or equipment will be no less protective of human health and safety and the environment than adhering to the requirement(s) for which the variance is sought.(e) If a variance is granted by the agency, the owner or operator shall maintain complete copies of the variance and supporting documentation (including the request for approval), in accordance with §334.10(b) of this title (relating to Reporting and Recordkeeping).(f) When a variance is sought, the owner and operator must adhere to the requirement in question until such time as the owner or operator receives a written variance which allows an alternative procedure and/or equipment for that requirement.(g) Once a person has received a written variance from the agency under this section, that person must adhere to the terms of that variance as written, or to the terms of the requirement for which the variance was sought.</content><note type="source"><p>Source Note: The provisions of this §334.43 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.44"><num value="334.44">§334.44</num><heading>Implementation Schedules</heading><content>(a) New underground storage tank (UST) systems.(1) Requirements for all new UST systems. All new UST systems installed on or after the effective date of this subchapter, which contain, have contained, or will contain any regulated substances shall be in compliance with the following requirements from the time of installation through the operational life of the system.(A) Such systems shall be designed, constructed, and installed in accordance with the provisions of §334.45 of this title (relating to Technical Standards for New UST Systems) and §334.46 of this title (relating to Installation Standards for New UST Systems).(B) Such systems shall be properly protected from corrosion or equipped with appropriate corrosion protection equipment, as provided in §334.49 of this title (relating to Corrosion Protection).(C) Such systems shall be monitored for releases as provided in §334.50 of this title (relating to Release Detection).(D) The tanks in such systems shall be protected from spills and overfills, as provided in §334.51 of this title (relating to Spill and Overfill Prevention and Control).(2) Additional requirements for new hazardous substance UST systems. In addition to the requirements applicable to all new UST systems in paragraph (1) of this subsection, all new hazardous substance UST systems installed on or after the effective date of this subchapter shall also be in compliance with the following requirements from the time of installation through the entire operational life of the system.(A) Such systems shall be properly constructed or equipped with a secondary containment system which shall be designed, constructed, and installed in accordance with the provisions of §334.45(d) of this title and §334.46(f) of this title.(B) Such systems shall be properly constructed or equipped with a release detection system capable of monitoring either the interstitial spaces between the primary and secondary walls of any double-wall UST components, or the spaces between the primary UST component walls and all secondary containment barriers, as applicable, in accordance with the provisions in §334.50(c) of this title.(b) Existing UST systems.(1) Requirements for all existing UST systems. All existing UST systems (i.e., UST systems for which installation has commenced or has been completed on or prior to December 22, 1988) which contain or have contained any regulated substances shall meet the applicable requirements of §334.47 of this title (relating to Technical Standards for Existing UST Systems) in accordance with the following schedule.(A) Tank integrity assessment and cathodic protection. No later than December 22, 1998, all existing UST systems shall be brought into compliance with the applicable tank integrity assessment and cathodic protection requirements of §334.47(b)(1) of this title.(B) Spill and overfill prevention. No later than December 22, 1994, all tanks in an existing UST system shall be brought into compliance with the applicable spill and overfill prevention equipment requirements of §334.51(b) of this title.(C) Release detection for existing UST system piping.(i) Release detection for pressurized piping. No later than December 22, 1990, all piping in an existing UST system that routinely conveys regulated substances under pressure (i.e., which operates at greater than atmospheric pressure) shall be brought into compliance with the pressurized piping release detection requirements in §334.50(b)(2)(A) of this title.(ii) Release detection for suction piping and gravity-flow piping. All piping in an existing UST system that routinely conveys regulated substances either by gravity flow or under suction (i.e., which operates at less than atmospheric pressure) shall be brought into compliance with the suction and gravity-flow piping release detection requirements in §334.50(b)(2)(B) of this title no later than the date on which release detection is required for the tank to which such piping is connected, as prescribed in subparagraph (D) of this paragraph.(D) Release detection for existing tanks.(i) Except as provided in clause (ii) of this subparagraph, all tanks in an existing UST system shall be brought into compliance with the tank release detection requirements in §334.50(b)(1) of this title no later than the date specified in the following subclauses for the time of installation applicable to such tanks:(I) December 22, 1989, for tanks where the installation dates are undetermined or unknown;(II) December 22, 1989, for tanks installed during 1964 or prior years;(III) December 22, 1990, for tanks installed during the years 1965-1969, inclusive;(IV) December 22, 1991, for tanks installed during the years 1970-1974, inclusive;(V) December 22, 1992, for tanks installed during the years 1975-1979, inclusive;(VI) December 22, 1993, for tanks installed during the years 1980-1987, inclusive; and(VII) December 22, 1993, for tanks installed between January 1, 1988, and December 22, 1988, inclusive.(ii) For emergency generator tanks only, the compliance dates prescribed in clause (i)(I)-(V) of this subparagraph shall be extended by one year; however, no compliance date shall be extended later than December 22, 1993.(2) Additional requirements for existing hazardous substance UST systems. In addition to the requirements applicable to all existing UST systems in paragraph (1) of this subsection, all existing hazardous substance UST systems shall also be brought into compliance with additional secondary containment and release detection standards in accordance with the following schedule.(A) No later than December 22, 1998, all existing hazardous substance UST systems shall be equipped with a secondary containment system meeting the design, construction, and installation requirements in §334.45(d) of this title and of §334.46(f) of this title.(B) No later than December 22, 1998, all existing hazardous substance UST systems shall be equipped with a release detection system capable of monitoring either the interstitial spaces between the primary and secondary walls of any double-walled UST components, or the spaces between the primary UST component walls and any secondary containment barriers, as applicable, in accordance with the provisions in §334.50(c) of this title.</content><note type="source"><p>Source Note: The provisions of this §334.44 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.45"><num value="334.45">§334.45</num><heading>Technical Standards for New Underground Storage Tank Systems</heading><content>(a) General requirements.(1) Any new underground storage tank (UST) system installed on or after September 29, 1989, shall be in compliance with the provisions of this section during the entire operational life of the UST system.(2) Any new UST system shall be designed, installed, and operated in a manner that will prevent releases due to structural failure or corrosion for the operational life of the UST system.(3) The surfaces of all components of the new UST system which are in direct contact with a regulated substance shall be constructed of or lined with materials that are compatible with such regulated substances.(4) All components of the new UST system which convey, contain, or store regulated substances shall be properly protected from corrosion in accordance with the applicable provisions in §334.49 of this title (relating to Corrosion Protection).(5) All tanks, piping, and other ancillary equipment in a new UST system shall be installed in accordance with the requirements of §334.46 of this title (relating to Installation Standards for New Underground Storage Tank Systems).(b) Technical standards for new tanks.(1) Tank design and construction. Each new tank shall be properly designed, constructed, and protected from corrosion in accordance with one or more of the methods listed in subparagraphs (A) - (G) of this paragraph, and in accordance with specific codes and standards of practice developed by nationally recognized associations and independent testing laboratories, as referenced in the following subparagraphs:(A) The tank may be constructed of fiberglass-reinforced plastic. Tanks constructed under this method shall meet an industry code of practice such as:(i) Underwriters Laboratories, Inc. (UL) Standard 1316, " Glass-Fiber-Reinforced Plastic Underground Storage Tanks for Petroleum Products, Alcohols, and Alcohol-Gasoline Mixtures;" or(ii) Underwriter's Laboratories of Canada (ULC) S615, "Standard for Fibre Reinforced Plastic Underground Tanks for Flammable and Combustible Liquids."(B) The tank may be constructed of coated steel and equipped with a factory-installed cathodic corrosion protection system. Any tank constructed under this method shall be thoroughly coated with a suitable dielectric material, shall be equipped with a factory-installed cathodic corrosion protection system meeting the appropriate design and operational requirements in §334.49(c)(1) of this title, and shall meet an industry code of practice such as:(i) UL Standard 58, "Standard for Steel Underground Tanks for Flammable and Combustible Liquids;"(ii) Part I of UL Standard 1746, "Standard for External Corrosion Protection Systems For Steel Underground Storage Tanks;" or(iii) Steel Tank Institute (STI) Standard, " sti-P3 Specification and Manual for External Corrosion Protection of Underground Steel Storage Tanks."(C) The tank may be constructed of coated steel and equipped with a field-installed cathodic corrosion protection system. Any tank constructed under this method shall be thoroughly coated with a suitable dielectric material, shall be equipped with a field-installed cathodic protection system meeting the appropriate design and operational requirements in §334.49(c)(2) of this title, and shall meet the following standards:(i) UL Standard 58, "Standard for Steel Underground Tanks for Flammable and Combustible Liquids;" and(ii) NACE International Standard SP0285, "External Corrosion Control of Underground Storage Tank Systems by Cathodic Protection."(D) The tank may be factory-constructed either as a steel/fiberglass-reinforced plastic composite tank, or as a steel tank with a bonded fiberglass-reinforced plastic external cladding or as a steel tank with a bonded fiberglass reinforced polyurethane coating. Any tank constructed under this method is not required to be equipped with a cathodic protection system, provided that the tank meets the following requirements:(i) The tank shall be equipped with a factory-applied external fiberglass-reinforced plastic or fiberglass reinforced polyurethane cladding or laminate which has a total dry film thickness of 100 mils minimum and 125 mils nominal;(ii) The tank shall be operated and maintained in accordance with the requirements of §334.49 of this title;(iii) The tank shall be electrically isolated from all other metallic structures by use of dielectric bushings or other appropriate methods utilized in accordance with applicable industry standards; and(iv) The tank shall be designed and fabricated in accordance with one or more of the following standards:(I) Part II of UL Standard 1746, "Standard for External Corrosion Protection Systems For Steel Underground Storage Tanks;"(II) STI ACT-100, "Specification for External Corrosion Protection of FRP Composite Steel Underground Storage Tanks;" or(III) any other UL, STI, or ULC standard which incorporates the requirements contained in the standards listed in either subclause (I) or (II) of this clause.(E) The tank may be factory-constructed as a steel tank with a bonded polyurethane external coating. Any tank constructed under this method is not required to be equipped with a cathodic protection system, provided that the tank meets the following requirements:(i) The tank shall be equipped with a factory-applied external polyurethane coating which has a minimum dry film thickness of 70 mils;(ii) The tank shall be operated and maintained in accordance with the applicable requirements of §334.49 of this title;(iii) The tank shall be electrically isolated from all other metallic structures by use of dielectric bushings or other appropriate methods utilized in accordance with applicable industry standards; and(iv) The tank shall be designed and fabricated in accordance with one or more of the following standards:(I) Part IV of UL Standard 1746, "Standard for External Corrosion Protection Systems For Steel Underground Storage Tanks;" (II) STI ACT-100-U, "Specification for External Corrosion Protection of Composite Steel Underground Storage Tanks;" or(III) any other UL, STI, or ULC standard which incorporates the requirements contained in the standards listed in either subclause (I) or (II) of this clause.(F) The tank may be factory-constructed as a steel tank completely contained within a nonmetallic external tank jacket. Any tank constructed under this method is not required to be equipped with a cathodic protection system, provided that the tank meets the following requirements:(i) The tank shall be equipped with a factory-constructed nonmetallic external jacket which provides both secondary containment and corrosion protection;(ii) The tank shall be operated and maintained in accordance with the applicable requirements of §334.49 of this title;(iii) The tank shall be electrically isolated from all other metallic structures by use of dielectric bushings or other appropriate methods utilized in accordance with applicable industry standards; and(iv) The tank shall be designed and fabricated in accordance with the following:(I) Part III of UL Standard 1746, "Standard for External Corrosion Protection Systems For Steel Underground Storage Tanks;" or(II) STI Specification F922, "Steel Tank Institute Specification for Permatank;" or (III) any other UL, STI, or ULC standard which incorporates the requirements contained in the standard listed in subclause (I) or (II) of this clause.(G) The tank may be designed, constructed, and protected from corrosion by an alternate method which has been reviewed and determined by the agency to control corrosion and prevent the release or threatened release of any stored regulated substance in a manner that is no less protective of human health and safety and the environment than the methods described in subparagraphs (A) - (F) of this paragraph, in accordance with the procedures in §334.43 of this title (relating to Variances and Alternative Procedures).(2) Spill and overfill prevention equipment. All new tanks shall be equipped with spill and overfill prevention equipment, in accordance with §334.51(b) of this title (relating to Spill and Overfill Prevention and Control).(3) Release detection for new tanks. All new tanks shall be monitored for releases of regulated substances in accordance with §334.50 of this title (relating to Release Detection).(4) Other new tank components.(A) Fittings. All metallic tank fittings (e.g., bung hole plugs) shall be protected from corrosion and shall be either:(i) isolated from the backfill material and groundwater or any other water;(ii) thoroughly coated with a suitable dielectric material, in accordance with the tank manufacturer's specifications; or(iii) cathodically protected in accordance with the applicable provisions in §334.49(c) of this title.(B) Striker plates. Factory-installed striker plates shall be located on the interior bottom surface of each tank under all fill and gauge openings.(C) Dielectric bushings or fittings. In order to provide electrical isolation of the tank from other connected metal components, all coated steel tanks equipped with either a factory-installed cathodic protection system or a factory-applied fiberglass-reinforced plastic laminate or cladding shall also be fitted with dielectric bushings or fittings at each tank opening where other metal UST system components are connected, except for unused openings closed with metal plugs and for openings where the connected component is non-metallic.(c) Technical standards for new piping.(1) Piping design and construction. All new underground piping (including associated valves, fittings, and connectors) in a UST system shall be properly designed, constructed, and protected from corrosion in accordance with one of the methods listed in subparagraphs (A) - (D) of this paragraph and in accordance with specific codes and standards of practice developed by nationally recognized associations and independent testing laboratories, as referenced in the following subparagraphs.(A) The piping may be constructed of fiberglass-reinforced plastic. Piping constructed under this method shall meet the following standards:(i) UL Standard 971, "Standard for Nonmetallic Underground Piping For Flammable Liquids;" and(ii) ULC Standard S660, "Standard for Nonmetallic Underground Piping for Flammable and Combustible Liquids."(B) The piping may be constructed of coated steel. Piping constructed under this method shall be thoroughly coated with a suitable dielectric material, shall be cathodically protected with a field-installed cathodic protection system meeting the appropriate design and operational requirements in §334.49(c) of this title, and shall meet the applicable provisions of the following standards.(i) UL Standard 971A, "Outline of Investigation for Metallic Underground Fuel Pipe;"(ii) STI Recommended Practice R892, "Recommended Practice for Corrosion Protection of Underground Piping Networks Associated with Liquid Storage and Dispensing Systems;"(iii) American Petroleum Institute Publication 1632, "Cathodic Protection of Underground Storage Tanks and Piping Systems;" (iv) NACE International Standard Practice SP0169, "Control of External Corrosion on Underground or Submerged Metallic Piping Systems; and" (v) NACE International Standard Practice SP0285, "External Corrosion Control of Underground Storage Tank Systems by Cathodic Protection."(C) The piping may be constructed of flexible nonmetallic material. Piping constructed under this method shall meet the following standards:(i) UL Standard 971, "Standard for Nonmetallic Underground Piping For Flammable Liquids;" and(ii) ULC Standard S660, "Standard for Nonmetallic Underground Piping for Flammable and Combustible Liquids."(D) The piping may be designed, constructed, and protected from corrosion by an alternate method which has been reviewed and determined by the agency to prevent the release of any stored regulated substance in a manner that is no less protective of human health and the environment than the methods described in subparagraphs (A) and (B) of this paragraph. Any alternative methods must be submitted and approved in accordance with the procedures in §334.43 of this title.(2) Release detection for new piping. All new piping shall be monitored for releases of regulated substances in accordance with §334.50(b)(2) of this title.(3) Other new piping components.(A) For piping systems in which regulated substances are conveyed under pressure to an aboveground dispensing unit, a UL-listed (or agency accepted equivalent listing by ULC) emergency shut-off valve (also called a shear or impact valve) shall be installed in each pressurized delivery or product line and shall be securely anchored at the base of the dispenser. This shut-off valve shall include a fusible link, and shall be designed to provide a positive shut-off of product flow in the event that a fire, collision, or other emergency occurs at the dispenser end of the pressurized line.(B) UL-listed (or agency accepted equivalent listing by ULC, or Factory Mutual Research Corporation (FMRC)) flexible connectors shall be installed at both ends of each pressurized product or delivery line to provide flexibility and to allow for vertical and horizontal movement in the piping, unless inherently flexible piping is installed in accordance with manufacturer's requirements and in accordance with an applicable code or standard of practice developed by a nationally recognized association or independent testing laboratory. The use of metal swing joints in a pressurized UST piping system is specifically prohibited.(C) If buried and in contact with soil or backfill materials, all metallic pipe, valves, and fittings (including flexible connectors) shall be equipped with corrosion protection meeting the applicable requirements in §334.49 of this title.(D) Only UL-listed (or agency accepted equivalent listing by ULC, or FMRC) flexible connectors or nonmetallic piping listed for aboveground use or listed for use in sumps can be used without backfill cover in sumps, manways, or dispenser pans.(d) Secondary containment for UST systems.(1) Applicability.(A) A secondary containment system meeting the requirements of this subsection shall be installed as part of any hazardous substance UST system.(B) A double-wall tank and piping system (or approved alternative) meeting the applicable requirements of this subchapter shall be installed for any UST system situated on the Edwards Aquifer recharge or transition zones or contributing zone within the transition zone, in accordance with Chapter 213 of this title (relating to Edwards Aquifer).(C) A UST system, at a minimum, shall incorporate secondary containment as specified in Texas Water Code, §26.3476, if the UST system is located in an area described in that provision.(D) The agency may specifically require the installation of a secondary containment system meeting the requirements of this subsection at other times when necessary for the protection of human health or safety or the environment.(E) Requirements applicable to new tanks, piping and/or dispensers (including related sumps or manways) installed on or after January 1, 2009:(i) Any new tank or piping installed as part of a UST system must incorporate secondary containment in accordance with the applicable requirements of this subchapter, except that external liners will not be allowed as a secondary containment method.(ii) Up to 35% of the total original length of an existing single-wall piping can be replaced with new single-wall piping in accordance with the applicable requirements of this subchapter without triggering the secondary containment requirement for that piping, unless the new piping segment connects the existing piping to a new dispenser. If more than 35% of the total original length of an existing single-wall piping is to be replaced, or the new piping segment connects the existing piping to a new dispenser, that piping segment must be replaced with a piping which incorporates secondary containment.(iii) The interstice of the secondarily contained tank and/or piping must be monitored in accordance with the requirements of §334.50(d)(7) of this title.(iv) Any sumps (including dispenser sumps) or manways which are used for interstitial monitoring of piping must be compatible with the stored substance(s), must be installed and maintained in a manner that assures that their sides, bottoms, and any penetration points are liquid tight, and must be inspected in accordance with the requirements in §334.42 and §334.48 of this title (relating to General Standards; and General Operating and Management Requirements). (v) Under-dispenser containment in the form of a dispenser sump is required for any new dispenser. A new dispenser is defined in §334.2 of this title (relating to Definitions). New dispensers must employ a dispenser sump which is compatible with the stored substance; is installed and maintained in a manner that assures that its sides, bottoms, and any penetration points are liquid tight; and must be inspected for tightness annually and tested for tightness, immediately after installation and at least once every three years thereafter.(vi) Any sumps (including dispenser sumps) or manways which are used for interstitial monitoring of piping must be equipped with a liquid sensing probe(s) which will alert the UST system owner or operator if more than two inches of liquid collects in any sump or manway.(vii) Liquids and/or debris found in any sumps (including dispenser sumps) or manways which are used for interstitial monitoring of piping must be removed within 96 hours of alert or discovery and properly disposed.(viii) Inspections and testing.(I) Inspections must be performed by a qualified person who is competent to conduct the inspection in accordance with recognized industry practices and in accordance with industry standards, if applicable. (II) Testing of tanks and/or piping shall be performed in accordance with the applicable requirements of this chapter. Testing of sumps (including dispenser sumps) or manways must be performed by a qualified person who is competent to conduct the inspection in accordance with recognized industry practices and in accordance with industry standards, if applicable.(2) General performance standards. All secondary containment systems installed as part of a UST system shall be:(A) designed, installed, and operated in a manner that will prevent the release of regulated substances from such secondary containment system into the surrounding soil, backfill, groundwater, or surface water during the operational life of the UST system;(B) capable of collecting and containing releases of regulated substances from any portion of the primary containment vessels (e.g., tanks and piping) until such released substances are removed;(C) constructed of or lined with materials which are compatible with the stored regulated substance;(D) constructed of materials having sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrological forces), physical contact with the stored regulated substance (and any other substance to which they may normally be exposed), climatic conditions, the stresses of installation, and the stresses of daily operation (including stresses from nearby vehicular traffic); and(E) installed on a properly designed and properly placed bedding or backfill material which is capable of providing adequate support for the secondary containment system, capable of providing adequate resistance to any pressure gradients above and below the system, and capable of preventing failure due to settlement, compression, or uplift.(3) Secondary containment for tanks. One or more of the following methods may be used to provide secondary containment for tanks.(A) Double-wall tanks. Double-wall tanks may be used to comply with the secondary containment requirements of this subchapter, provided that such tanks shall meet the following additional provisions.(i) The secondary wall of such double-wall tanks shall be structurally designed to contain and support the full-load capacity of the primary tank without failure.(ii) The double-wall tank (including both the primary and secondary tank walls) shall be protected from corrosion in accordance with one or more of the allowable methods included in §334.49 of this title.(iii) The double-wall tank shall be designed, installed, operated, and maintained in accordance with one of the applicable codes or standards of practice listed as follows:(I) for fiberglass-reinforced plastic tanks: UL Standard 1316, " Glass-Fiber-Reinforced Plastic Underground Storage Tanks for Petroleum Products, Alcohols, and Alcohol-Gasoline Mixtures; "(II) for steel tanks: STI Standard F841, "Standard for Dual Wall Underground Steel Storage Tanks; " UL Standard 58, "Standard for Steel Underground Tanks for Flammable and Combustible Liquids; " and other applicable UL standards for double-wall steel tanks; and(III) any other code or standard of practice developed by a nationally recognized association or independent testing laboratory that has been reviewed and determined by the agency to be no less protective of human health and safety and the environment than the standards described in subclauses (I) and (II) of this clause, in accordance with procedures in §334.43 of this title.(iv) The double-wall tank system shall be installed in accordance with the requirements in §334.46(f)(2) of this title.(B) External liners. Tank excavation liners may be used to comply with the secondary containment requirements of this paragraph, provided that such liners shall meet the following additional provisions.(i) The tank excavation liner shall consist of an artificially constructed material that is of sufficient strength, thickness, puncture-resistance, and impermeability (i.e., allow permeation at a rate of no more than 0.25 ounces per square foot per 24 hours for the stored regulated substance) in order to permit the collection and containment of any releases from the UST system. The criteria for evaluation of the liner for compliance with this clause shall be in accordance with accepted industry practices for materials testing. Types of liners which may be used include certain reinforced and unreinforced flexible-membrane liners, rigid fiberglass-reinforced plastic liners, and reinforced concrete vaults.(ii) The liner shall be protected from corrosion in accordance with one or more of the allowable methods included in §334.49 of this title.(iii) The liner shall be sufficiently compatible with the stored regulated substance, so that any regulated substance collected in the liner system shall not cause any substantial deterioration of the liner that would allow the regulated substances to be released into the environment.(iv) The liner shall be designed to provide a containment volume of no less than 100% of the full capacity of the largest tank within its containment area.(v) The liner shall be installed in accordance with the requirements in §334.46(f)(4) of this title.(4) Secondary containment for piping. One or more of the following methods shall be used to provide secondary containment for piping.(A) Double-wall piping. Double-wall piping systems may be used to comply with the secondary containment requirements of this subchapter, provided that such piping systems meet the following additional provisions.(i) The double-wall piping system shall be designed to contain a release from any portion of the primary piping within the secondary piping walls.(ii) The double-wall piping system (including both the primary and secondary piping) shall be protected from corrosion in accordance with one or more of the allowable methods included in §334.49 of this title.(iii) The double-wall piping system shall be designed, installed, and operated in accordance with a code or standard of practice developed by a nationally recognized association or independent testing laboratory.(iv) The double-wall piping system shall be installed in accordance with the requirements in §334.46(f)(3) of this title.(B) External liners. External piping trench liners may be used to comply with the secondary containment requirements of this paragraph, provided that such liners meet the additional provisions in paragraph (3)(B) of this subsection.(e) Technical standards for other new UST system equipment. (1) Vent lines. All underground portions of the vent lines (including all associated underground valves, fittings, and connectors) shall be designed and constructed in accordance with the piping requirements in subsection (c)(1) of this section, shall be properly protected from corrosion in accordance with one of the allowable methods in §334.49 of this title, and shall be installed in accordance with a code or standard of practice developed by a nationally recognized association or independent testing laboratory.(2) Fill pipes. All fill pipes (including any connected fittings) shall be:(A) designed and constructed in accordance with the piping requirements in subsection (c)(1) of this section;(B) properly protected from corrosion in accordance with one of the allowable methods in §334.49 of this title;(C) properly enclosed in or equipped with spill and overfill prevention equipment as required in §334.51(b) of this title; and(D) equipped with a removable or permanent factory-constructed drop tube which shall extend to within 12 inches of the tank bottom.(3) Release detection equipment. All release detection equipment shall be designed and constructed in accordance with the requirements for the particular type of equipment, as described in the applicable provisions in §334.50 of this title.(4) Monitoring wells and observation wells.(A) All monitoring wells and observation wells installed on or after September 29, 1989, shall be designed, constructed, and installed in accordance with the requirements in §334.46(g) of this title.(B) Each separate tank hole in a new UST system installed on or after September 29, 1989, shall include a minimum number of four-inch diameter (nominal) observation wells, as specified in the following clauses:(i) for a tank hole containing only one tank, a minimum of one observation well shall be required; and(ii) for a tank hole containing two or more tanks, a minimum of two observation wells shall be required.(f) Records for technical standards for new UST systems. Owners and operators of new UST systems shall maintain adequate records to demonstrate compliance with the applicable provisions in this section, which at a minimum, shall include all records required in §334.46(i) of this title. All records shall be maintained in accordance with §334.10(b) of this title (relating to Reporting and Recordkeeping).</content><note type="source"><p>Source Note: The provisions of this §334.45 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective October 30, 2008, 33 TexReg 8790; amended to be effective March 17, 2011, 36 TexReg 1675; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.46"><num value="334.46">§334.46</num><heading>Installation Standards for New Underground Storage Tank Systems</heading><content>(a) General installation procedures. Any new underground storage tank (UST) system installed on or after September 29, 1989, shall be installed in compliance with the provisions of this section.(1) Standards. All tanks, piping, and associated equipment shall be installed in accordance with at least one of the following standards, as applicable:(A) Petroleum Equipment Institute Publication RP-100, "Recommended Practices for Installation of Underground Liquid Storage Systems;"(B) American Petroleum Institute Publication 1615, "Installation of Underground Petroleum Storage Systems;"(C) National Fire Protection Association Standard 30, "Flammable and Combustible Liquids Code" and Standard 30A, "Code for Motor Fuel Dispensing Facilities and Repair Garages;" or(D) any other code or standard of practice developed by a nationally recognized association or independent testing laboratory that has been reviewed and determined by the agency to be no less protective of human health and safety and the environment than the standards described in subparagraphs (A) - (C) of this paragraph, in accordance with the procedures in §334.43 of this title (relating to Variances and Alternative Procedures).(2) Installation personnel. All tanks, piping, and associated equipment shall be installed by personnel possessing the appropriate skills, experience, competence, and, if applicable, any required certification or license to complete the installation in accordance with recognized industry practices and this chapter, and in a manner designed to minimize the possibility of UST system failures and the releases of regulated substances.(3) Damages.(A) All reasonable precautions shall be taken to prevent improper handling and damaging of the tanks and piping during the unloading and installation processes.(B) Tanks and piping shall be physically inspected by the installer prior to installation.(C) Any damage shall be repaired in accordance with the manufacturer's specifications; otherwise, damaged tanks and/or piping shall be replaced.(4) Excavation.(A) The tank excavation zone and piping trenches shall provide adequate vertical and horizontal space for the tanks, piping, and associated equipment, for the proper placement and compaction of bedding and backfill materials (particularly under the lower quadrant of the tank's circumference), and for adequate cover and paving to accommodate anticipated traffic loads.(B) Tank excavation shall be performed in a manner that will avoid the undermining of foundations and other existing structures, and shall be constructed not less than three feet from the base of adjacent structures (unless specifically approved by a licensed professional engineer) and not less than three feet from any underground utility easements and property lines.(5) Bedding and backfill.(A) The bedding and backfill shall consist of clean, washed, suitably graded, and noncorrosive sand, crushed rock, or pea gravel.(B) The bedding and backfill material shall be selected and placed in accordance with the tank and piping manufacturer's specifications, and shall be placed and compacted in uniform lifts, as appropriate, to assure proper support and protection of the tank and piping after installation.(C) Minimum bedding and backfill requirements shall be in accordance with the applicable industry standard for the construction, as prescribed in this subsection.(D) The placement of tanks or piping directly on native soils, concrete pads or saddles, or any other underlayment except the bedding materials listed in this paragraph is specifically prohibited.(b) Anchoring systems. Unless otherwise approved by the agency in accordance with §334.43 of this title, all USTs located in areas subject to high water tables or flooding shall be protected from any flotation or movement which could jeopardize the integrity of the UST system.(1) Methods to prevent tank flotation shall be in accordance with the tank manufacturer's specifications and shall be one (or a combination) of the following methods:(A) the provision of ample backfill and/or paving on top of the tank to offset the buoyancy forces;(B) the installation of a properly designed deadman anchoring system, where the concrete beams shall be placed outside the vertical extension of the tank diameter and where the length of the beams shall extend at least one foot beyond the ends of the tank; or(C) the installation of a properly designed concrete hold-down pad anchoring system beneath the tank, where the pad's width and length shall extend at least one foot beyond the tank sides and ends in all directions.(2) The installation of anchoring straps or cables shall be in accordance with the tank manufacturer's specifications. All parts of the straps, cables, and hardware shall be of corrosion-resistant material or, if metallic, shall be thoroughly coated or wrapped with a suitable dielectric material.(c) Piping system installation.(1) The piping layout shall be designed in a manner that will minimize the crossing of other lines and conduits, and the crossing of tanks and other UST system components. Where such crossing is unavoidable, adequate clearance shall be provided to prevent contact.(2) Traps, sumps, or sags in the piping shall be avoided, and all piping shall slope at least 1/8 inch per foot in the direction of the tank.(3) All piping joints shall be accurately cut, deburred, cleaned, and sealed with appropriate piping sealant, bonding agent, or adhesive in accordance with the piping manufacturer's specifications so as to provide liquid-tight connections.(d) Installation testing for new tanks and piping.(1) Air testing of new tanks shall be conducted in accordance with the tank manufacturer's specifications.(A) Air testing for single-wall tanks shall include the soaping of all surfaces, seams, and fittings, pressurizing and gauging with three to five pounds per square inch gauge (psig) air pressure for at least one hour, monitoring the gauge for pressure drops, and inspecting for bubbles.(B) Air testing for double-wall tanks shall be in accordance with subsection (f)(2)(B) of this section.(C) Gauges used in air testing procedures shall have a maximum range not exceeding 15 psig. All tanks undergoing air pressure testing shall be equipped with a pressure relief device capable of relieving the total output of the compressed air source at a pressure of not more than six psig.(2) Air testing of new piping, fittings, and valves shall be conducted in accordance with the manufacturer's specifications. New piping shall be tested before being covered and placed into use. Air testing of piping shall include the soaping of all joints, pressurizing with compressed air to 150% of the maximum piping operating pressure, or a minimum of 50 psig, for at least one hour, and inspecting for bubbles. Air testing for secondary containment piping shall be in accordance with subsection (f)(3)(B) of this section.(3) In addition to the air tests, a tank tightness test and a piping tightness test meeting the requirements of §334.50(b)(2)(A)(ii)(I) and (d)(1)(A) of this title (relating to Release Detection) shall be performed after the backfill has been placed but prior to bringing the new UST system into operation.(4) Additional tests required. In addition to the air tests and tightness tests required in this subsection, the following additional installation tests shall be required, as applicable.(A) For fiberglass-reinforced plastic tanks, the tank diameter shall be accurately measured prior to and after installation to ascertain the amount of vertical deflection, as specified in the tank manufacturer's installation procedures. Except when specifically authorized in writing by an authorized representative of the tank manufacturer, tanks shall not be placed into operation if the measured vertical deflection exceeds the manufacturer's maximum allowable deflection ratings.(B) For steel tanks and other underground UST system components which are equipped with factory-installed or field-installed cathodic corrosion protection systems, the cathodic protection systems shall be tested for operability and adequacy of protection by a qualified corrosion technician or qualified corrosion specialist after the UST system installation is completed but prior to placing the system into operation.(i) If the test indicates that the cathodic protection system is inoperable or inadequate, a qualified corrosion specialist shall review the test results and thoroughly inspect the UST system to ascertain the extent of corrosion protection.(ii) If the qualified corrosion specialist determines that the UST system component is no longer adequately protected from corrosion, then the owner or operator shall assure that one or more of the following procedures are completed before the UST system is placed into operation.(I) Appropriate repairs or modifications shall be made to restore the cathodic corrosion protection to the applicable UST system components.(II) The cathodic protection system shall be replaced with another operable cathodic protection system which will provide adequate corrosion protection to the applicable UST system components, in accordance with the requirements in §334.49(c)(2) of this title (relating to Corrosion Protection).(e) Installation of cathodic protection systems. The installation of any field-installed cathodic protection system in a new or existing UST system shall be in accordance with the applicable requirements of §334.49(c)(2) of this title.(f) Installation of secondary containment systems.(1) Secondary containment. Any secondary containment system shall meet the technical standards of §334.45(d) of this title (relating to Technical Standards for New Underground Storage Tank Systems).(2) Installation of double-wall tanks.(A) The installation of double-wall tanks shall be in compliance with the manufacturer's specifications and the applicable tank installation procedures in this section.(B) Air testing for double-wall tanks shall be in accordance with the manufacturer's specifications or the following procedures.(i) The primary tank shall be pressurized and gauged with three to five psig of air pressure. The primary tank shall be pressurized for at least one hour, and the gauge pressure shall be periodically monitored for any pressure drops.(ii) After disconnecting the outside air pressure source, the interstitial area between the tank walls shall be pressurized with air pressure from the primary tank. A second gauge shall be used to measure the pressure in the interstitial space.(iii) The exterior of the tank shall be soaped, and the integrity of the system shall be inspected by monitoring the gauges and inspecting for air bubbles for at least one hour prior to releasing the pressure.(iv) Gauges used in air testing procedures shall have a maximum range not exceeding 15 psig. All tanks undergoing air testing shall be equipped with a pressure relief device capable of relieving the total output of the compressed air source at a pressure of not more than six psig.(3) Installation of double-wall piping.(A) The installation of double-wall piping shall be in compliance with the manufacturer's specifications and the applicable piping installation procedures in this section.(B) After successful air testing of the completed primary piping system (in accordance with subsection (d)(2) of this section), the secondary containment piping shall be air tested in accordance with the manufacturer's specifications and the following procedures.(i) The secondary containment piping shall be pressurized and gauged with three to five psig of air pressure.(ii) The exterior of the secondary containment piping shall be soaped and the integrity of the system shall be inspected by monitoring for air bubbles for at least one hour.(iii) The secondary containment piping system shall remain pressurized, and the gauges shall be periodically monitored for pressure losses, until the entire UST system installation is complete in order to monitor for damages during the remaining construction activities.(4) Installation of external liners.(A) External liners shall be installed in accordance with the manufacturer's specifications, and in accordance with the requirements in this paragraph.(B) The installation, field-seaming, and field-repair of any liners shall be performed only by qualified personnel who have been properly trained and certified by the liner manufacturer.(C) The liner shall be protected from puncture, abrasion, or any other damage during placement and during installation of other UST system components. A protective layer of puncture-resistant filter fabric shall be required when the liner is placed in an excavation area where the presence of sharp paving, rocks, or other debris presents a threat to the liner integrity.(D) The liner shall be installed in a manner that will allow sufficient enclosure of the secondarily protected component to prevent lateral and vertical migration of any collected regulated substances.(E) For UST systems which are equipped with cathodic protection equipment, the liner shall be installed so as not to jeopardize or inhibit the proper operation of such cathodic protection equipment.(F) The liner installation shall include the provision of an appropriate number of recessed collection/detection points, and all portions of the liner shall be sloped toward such points to permit the detection of any releases from the primary storage component.(G) The installation of the liner shall be performed in a manner that will ensure that groundwater, soil moisture, and stormwater runoff will not adversely affect the liner's ability to collect and contain regulated substances or the ability of the selected release detection methods to operate effectively.(H) The liner shall be designed and installed to ensure that it will always be situated above the highest groundwater level and outside the 25-year floodplain, unless the liner and the release detection system are properly designed for use under such conditions. The owner or operator may be required to provide documentation of the methods used to determine groundwater and floodplain information.(I) After completion of the liner installation, but prior to placing the UST system into service, the liner shall be properly tested in accordance with the manufacturer's specifications.(g) Installation of monitoring wells and observation wells. All monitoring wells and observation wells installed in conjunction with a UST system on or after September 29, 1989, shall be constructed and installed in accordance with the requirements of this subsection.(1) General requirements for both monitoring wells and observation wells.(A) All monitoring wells and observation wells shall be constructed or installed by personnel possessing the appropriate skills, experience, competence, and, if applicable, any required license or certification to complete the construction or installation in accordance with recognized industry standards and the requirements of this subsection.(B) Except for observation wells installed under §334.45(e)(4)(B) of this title, the determination of the appropriate number and the appropriate diameters of monitoring wells or observation wells shall be based on the planned purpose of such well and on the specific procedures, methods, and equipment to be utilized in achieving such purpose.(C) The slotted or screened portion of the monitoring well or observation well casing shall be designed and sized so as to prevent the migration of natural soils, backfill material, or filter pack material into the well, and to allow the unrestricted entry of any released regulated substances (liquid-phase or vapor-phase, as applicable) into the well at all times, regardless of the groundwater levels.(D) The well casing material shall be sufficiently compatible with the stored regulated substance such that prolonged exposure to such substances will not cause failure or excessive deterioration of the casing.(E) When installed or constructed for the purposes of compliance with one or more of the release detection methods in §334.50(d) of this title, the specific number and positioning of the monitoring wells and/or observation wells shall be based on the results of an assessment of the underground areas within and immediately surrounding the UST system excavation zone to assure compliance with the specific criteria and requirements for the applicable release detection method. Such assessment shall be performed by qualified personnel who are familiar with the characteristics of the stored regulated substance and the groundwater, soil, and geologic conditions at the site.(F) All monitoring wells and observation wells shall be equipped with a properly designed and properly installed bottom cap.(G) All monitoring well and observation well installations shall include an appropriate access vault or manhole, which shall be equipped with a liquid-tight cover and be designed to divert surface runoff away from the well.(H) All monitoring wells and observation wells shall be properly capped, labeled, and secured (or locked) to prevent unauthorized access, tampering, and any deliberate or accidental depositing of unauthorized substances.(2) Additional requirements for monitoring wells. In addition to the general requirements of paragraph (1) of this subsection, all monitoring wells installed in conjunction with a UST system shall be constructed or installed in accordance with the applicable requirements of 16 TAC Chapter 76 (relating to Water Well Drillers and Water Well Pump Installers), and Texas Occupations Code, Chapter 1901 (relating to Water Well Drillers). Any person constructing or installing a monitoring well shall be appropriately licensed as required therein.(3) Additional requirements for observation wells. In addition to the general requirements of paragraph (1) of this subsection, the following requirements shall be applicable to all observation wells installed in conjunction with a UST system.(A) All observation wells that are regulated as monitoring wells by the Texas Department of Licensing and Regulation (TDLR) shall be constructed or installed in accordance with the applicable requirements in 16 TAC Chapter 76, and Texas Occupations Code, Chapter 1901. Any person constructing or installing such well shall be appropriately licensed as required therein.(B) All observation wells that are not regulated as monitoring wells by the TDLR shall be constructed or installed in accordance with the following minimum requirements.(i) All observation wells shall be designed and installed in general accordance with a code or standard of practice developed by a nationally recognized association or independent testing laboratory.(ii) All observation wells shall be constructed or installed within the UST system excavation zone, and shall be completed to a depth of at least two feet below the lowest part of any monitored tank, or at least one foot below the lowest part of any monitored piping, as applicable.(iii) For observation wells installed or constructed on or after September 29, 1989, in a new or existing UST system where the backfill consists of specialized or select materials (i.e., sand, pea gravel, or crushed rock), the following minimum requirements shall be applicable.(I) The access vault or manhole shall be properly installed in a concrete encasement which shall extend from the top of the vault to at least one foot below the base of the vault to provide adequate structural support and to prevent surface runoff and pollutants from entering the well.(II) Beginning at the bottom of the concrete encasement beneath the access vault, the well casing shall be properly sealed with impervious bentonite or a similar impervious material for a minimum distance of either one foot below the bottom of the concrete encasement or to the top of the specialized or select backfill material, whichever is the greater depth.(iv) For observation wells installed or constructed on or after September 29, 1989, in an existing UST system where the backfill consists of materials other than specialized or select materials (e.g., native soils), the well shall be constructed or installed in accordance with the applicable standards in 16 TAC Chapter 76. If the observation well is not regulated as a monitoring well by the TDLR, the licensing requirements for persons constructing or installing such well shall not be applicable.(h) Certification of installation.(1) All owners and operators of new UST systems installed on or after September 29, 1989, shall ensure that the installation was completed in accordance with the provisions of this section, and that the UST system installation is conducted by an installer licensed by the agency.(2) The installer of the UST system shall complete the installation certification section of the agency's authorized form, and shall certify by signature that the installation methods are in compliance with the provisions of this section, as required by §334.8(a) of this title (relating to Certification for Underground Storage Tanks (USTs) and UST Systems).(i) Installation records.(1) Owners and operators shall maintain all installation records required in accordance with the requirements in §334.10(b) of this title (relating to Reporting and Recordkeeping).(2) Owners and operators shall maintain the following records for the operational life of the UST system:(A) general information relating to the installation activity, including:(i) date of installation activity;(ii) names, addresses, and telephone numbers of the persons conducting the installation and performing any associated inspections or testing; and(iii) copies of all related notifications or reports filed with the agency or others, including:(I) registration information, as required by §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems); and(II) installation certification information, as required by §334.8(a) of this title;(B) as-built drawings (or plans), which have been drawn to scale and in sufficient detail to accurately depict and describe the sizes, dimensions, and locations of the following:(i) all pertinent site features, including property boundaries, street and road rights-of-way, easements, utility lines, buildings and other structures, driveways, slabs, and any natural features;(ii) all pertinent UST system components, including tanks, piping, vent piping, pumps, dispensers, excavation zone (including tank hole and piping trench), monitoring wells, spill and overfill prevention equipment, release detection system components (including monitoring and testing locations), cathodic protection system components (including test stations), secondary containment systems, anchoring systems, and any other pertinent UST system components; and(iii) any site features or UST system components which have been added, revised, changed, modified, or removed subsequent to the preparation of the original drawings or plans; and(C) equipment information for all UST system components including:(i) manufacturer's specifications, installation instructions, operating instruction, warranty information, recommended test procedures, and inspection and maintenance schedules; and(ii) names, addresses, and telephone numbers of the manufacturer's representatives and local authorized service technicians.(3) Owners and operators shall maintain the results of all equipment tests, including the air tests and the tightness tests conducted on the tanks and piping at the time of installation, for at least five years after the date of installation.</content><note type="source"><p>Source Note: The provisions of this §334.46 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.47"><num value="334.47">§334.47</num><heading>Technical Standards for Existing Underground Storage Tank Systems</heading><content>(a) General requirements.(1) Alternatives for existing underground storage tank (UST) systems. No later than the implementation dates specified in §334.44(b) of this title (relating to Implementation Schedules), all applicable components of any existing UST system (i.e., UST system for which installation has commenced or has been completed on or prior to December 22, 1988) shall be either installed, upgraded, improved, or replaced with equipment or components which meet or exceed either of the following requirements:(A) the requirements for technical standards and installation of new UST systems in §334.45 of this title (relating to Technical Standards for New Underground Storage Tank Systems) and in §334.46 of this title (relating to Installation Standards for New Underground Storage Tank Systems);(B) the minimum upgrading requirements for existing UST systems in subsection (b) of this section; or(C) National Fire Protection Association Standard 30, "Flammable and Combustible Liquids Code" and Standard 30A, "Code for Motor Fuel Dispensing Facilities and Repair Garages."(2) If any applicable component of an existing UST system is not brought into timely compliance with the requirements of paragraph (1) of this subsection, the UST system shall be permanently removed from service no later than 60 days after the prescribed implementation date. The permanent removal from service shall be conducted in accordance with the applicable provisions of §334.55 of this title (relating to Permanent Removal from Service).(b) Minimum upgrading requirements for all existing UST systems.(1) Tank integrity assessment and UST system cathodic protection. No later than December 22, 1998, all tanks in an existing UST system shall be assessed for structural integrity, and all underground metallic components of an existing UST system shall be equipped with a cathodic protection system, as provided in the following subparagraphs.(A) Tank integrity assessment. The tank shall be assessed for structural integrity and for the presence of corrosion holes by one or more of the following methods.(i) The tank may be equipped with one or more of the release detection systems meeting the applicable requirements of §334.50(d)(4) - (10) of this title (relating to Release Detection). Such release detection system(s) shall have been in operation for at least 60 days prior to the date of the cathodic protection system installation, and at least one of the systems shall remain in operation for the remaining operational life of the tank.(ii) The tank may be tested by conducting at least two tank tightness tests meeting the requirements of §334.50(d)(1)(A) of this title. The first tightness test shall be conducted prior to installing the cathodic protection system, and the second test shall be conducted between three and six months after the cathodic protection system is placed into operation. For tanks constructed of non-corrodible material, or metal tanks clad or jacketed with non-corrodible material which are electrically isolated from surrounding soil, backfill or groundwater or any other water, the tank may be tested by conducting at least one tightness test meeting the requirements of §334.50(d)(1)(A) of this title, within the 12-month period prior to December 22, 1998.(iii) When the tank upgrading is to include the installation of an interior lining meeting the applicable provisions in §334.52(b) of this title (relating to Underground Storage Tank System Repairs and Relining), a site assessment or release determination may be conducted prior to the installation of the interior lining and the cathodic protection system. Such site assessment or release determination shall be conducted in accordance with the provisions of §334.55(e) of this title.(iv) Prior to the installation of the cathodic protection system, the tank may be internally inspected and assessed to assure that the tank is structurally sound and free of corrosion holes, provided that such internal inspection shall be:(I) conducted in accordance with a code or standard of practice developed by a nationally recognized association or independent testing laboratory; and(II) performed by qualified personnel possessing the requisite training, experience, and competence to assure that any corrosion holes or structurally unsound areas are located.(v) Prior to the installation of the cathodic protection system, the tank may be assessed for structural integrity and the presence of corrosion holes by an alternate method which has been reviewed and determined by the agency to prevent releases in a manner that is no less protective of human health and the environment than the methods described in clauses (i) - (iv) of this subparagraph, in accordance with the provisions of §334.43 of this title (relating to Variances and Alternative Procedures).(B) Repairs or corrective action. If the results of the tank integrity assessment (required by subparagraph (A) of this paragraph) indicate that the existing tank is not structurally sound and/or that a release of regulated substances has occurred, then the owner and operator shall:(i) comply with the applicable release reporting, investigation, and corrective action requirements of Subchapter D of this chapter (relating to Release Reporting and Corrective Action); and(ii) conduct one of the following activities, as applicable:(I) perform appropriate repairs or relining of the tank, in accordance with the applicable requirements of §334.52 of this title, as necessary to restore the structural integrity of the tank; or(II) permanently remove the tank from service in accordance with the applicable provisions in §334.55 of this title.(C) Field-installed cathodic protection system. After confirmation or restoration of the structural integrity of the tank, all underground metal components of the UST system, which are not isolated from the surrounding soil, backfill, and groundwater or any other water, and which either do or could convey, contain, or store regulated substances, shall be equipped with a field-installed cathodic protection system meeting the requirements of §334.49(c)(2) of this title (relating to Corrosion Protection).(2) Adding spill and overfill prevention equipment. All existing USTs shall be equipped with appropriate spill and overfill prevention equipment, in accordance with the provisions in §334.51(b) of this title (relating to Spill and Overfill Prevention and Control).(3) Adding release detection for UST system piping.(A) Release detection for pressurized piping. No later than December 22, 1990, all piping in an existing UST system that routinely conveys regulated substances under pressure (i.e., which operates at greater than atmospheric pressure) shall be brought into compliance with the pressurized piping release detection requirements in §334.50(b)(2)(A) of this title.(B) Release detection for suction piping and gravity-flow piping. All piping in an existing UST system that routinely conveys regulated substances either under suction (i.e., which operates at less than atmospheric pressure) or by gravity-flow shall be brought into compliance with the applicable release detection requirements in §334.50(b)(2)(B) of this title no later than the date on which release detection is required for the tank to which such piping is connected, as prescribed in paragraph (4) of this subsection.(4) Adding release detection for tanks.(A) Except as provided in subparagraph (B) of this paragraph, all tanks at an existing UST system shall be brought into compliance with the tank release detection requirements in §334.50(b)(1) of this title no later than the date specified in the following clauses for the time of installation applicable to such tanks:(i) December 22, 1989, for tanks where the installation dates are undetermined or unknown;(ii) December 22, 1989, for tanks installed during 1964 or prior years;(iii) December 22, 1990, for tanks installed during the years 1965 - 1969, inclusive;(iv) December 22, 1991, for tanks installed during the years 1970 - 1974, inclusive;(v) December 22, 1992, for tanks installed during the years 1975 - 1979, inclusive;(vi) December 22, 1993, for tanks installed during the years 1980 - 1987, inclusive; and(vii) December 22, 1993, for tanks installed between January 1, 1988, and December 22, 1988, inclusive.(B) For emergency generator tanks only, the compliance dates prescribed in subparagraph (A)(i) - (v) of this paragraph shall be extended by one year; however, no compliance date shall be extended past December 22, 1993.(C) When two or more existing tanks are located in a common tank hole, and when the selected method of release detection is either vapor monitoring or groundwater monitoring in accordance with §334.50(d)(5) and (6) of this title, then all such tanks shall be brought into compliance with the applicable release detection requirements of this paragraph no later than the date specified for the oldest tank in such common tank hole.(c) Additional upgrading requirements for existing hazardous substance UST systems. In addition to the upgrading requirements applicable to all existing UST systems in subsections (a) and (b) of this section, all existing hazardous substance UST systems (e.g., UST system for which installation has commenced or has been completed on or prior to December 22, 1988) shall be equipped or retrofitted with a secondary containment system and an associated release detection system in accordance with the following provisions.(1) No later than December 22, 1998, all existing hazardous substance UST systems shall be equipped with a secondary containment system meeting the design, construction, and installation requirements in §334.45(d) of this title and §334.46(f) of this title.(2) No later than December 22, 1998, all existing hazardous substance UST systems shall be equipped with a release detection system capable of monitoring either the interstitial spaces between the primary and secondary walls of any double-walled UST component, or the spaces between the primary UST component walls and any external liners, as applicable, in accordance with the provisions in §334.50(c) of this title.(d) A UST system, at a minimum, shall incorporate secondary containment as specified in Texas Water Code, §26.3476, if the UST system is located in an area described in that provision.(e) Records for upgrading of existing UST systems.(1) Owners and operators shall maintain all records related to the upgrading of existing UST systems required in this subsection in accordance with the requirements in §334.10(b) of this title (relating to Reporting and Recordkeeping).(2) Owners and operators shall maintain the following records for the operational life of the UST system:(A) general information related to the tank integrity assessment and cathodic protection requirements in subsection (b) of this section, including:(i) dates of the tank integrity assessment and cathodic protection installation activities;(ii) names, addresses, and telephone numbers of the persons conducting the tank integrity assessment and cathodic protection installation activities; and(iii) copies of all related notifications or reports filed with the agency or others, including:(I) registration information, as required by §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems); and(II) installation certification information, as required by §334.8(a) of this title (relating to Certification for Underground Storage Tanks (USTs) and UST Systems);(B) as-built drawings (or plans), which have been drawn to scale and in sufficient detail so as to accurately depict and describe the sizes, dimensions, and locations of any UST system components or equipment added or installed on or after September 29, 1989, which are installed pursuant to one of the construction activities included in §334.6(b)(1)(A) of this title (relating to Construction Notification for Underground Storage Tanks (USTs) and UST Systems); and(C) equipment information for any UST system components or equipment added or installed on or after September 29, 1989, for the purpose of compliance with the upgrading requirements of this section, including manufacturer's specifications, installation instructions, operating instructions, warranty information, recommended test procedures, and inspection and maintenance schedules.(3) Owners and operators shall maintain the results of all equipment tests and tank integrity tests required in this section including internal inspections, tank and piping tightness tests, and site assessments, for at least five years after the dates such tests are conducted.</content><note type="source"><p>Source Note: The provisions of this §334.47 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective October 30, 2008, 33 TexReg 8790; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.48"><num value="334.48">§334.48</num><heading>General Operating and Management Requirements</heading><content>(a) Prevention of releases. All owners and operators of underground storage tank (UST) systems shall ensure that the systems are operated, maintained, and managed in a manner that will prevent releases of regulated substances from such systems.(b) UST system management. UST systems shall be operated, maintained, and managed in accordance with accepted industry practices.(c) Inventory control. Inventory control procedures shall be in accordance with §334.50(d)(1)(B) of this title. Complete and accurate inventory records shall be maintained in accordance with §334.10 of this title (relating to Reporting and Recordkeeping).(d) Spill and overfill control. All owners and operators shall ensure that spills and overfills of regulated substances do not occur and that all spill and overfill prevention equipment is properly operated and maintained in accordance with §334.51 of this title (relating to Spill and Overfill Prevention and Control).(e) Operational requirements for release detection equipment. Owners and operators of all new and existing UST systems shall ensure that all release detection equipment installed as part of a UST system pursuant to §334.50 of this title is maintained in good operating condition and electronic and mechanical components are tested for proper operation in accordance with one of the following: manufacturer's instructions, a code of practice developed by a nationally recognized association or independent testing laboratory, or requirements determined by the executive director to be no less protective of human health and the environment than listed in this subsection.(1) Beginning on January 1, 2021, a test of the proper operation of release detection equipment must be performed at least annually and, at a minimum, as applicable to the facility, cover the following components and criteria:(A) automatic tank gauge and other controllers: test alarm, verify system configuration, and test battery backup;(B) probes and sensors: inspect for residual buildup, ensure floats move freely, ensure shaft is not damaged; ensure cables are free of kinks and breaks, and test alarm operability and communication with controller;(C) automatic line leak detector: test operation to meet criteria in §334.50(b)(2)(A)(i) of this title by simulating a leak;(D) vacuum pumps and pressure gauges: ensure proper communication with sensors and controller; and(E) hand-held electronic sampling equipment associated with groundwater and vapor monitoring: ensure proper operation.(2) The code of practice that may be used to comply with paragraph (1) of this subsection is: Petroleum Equipment Institute (PEI) Publication RP1200, "Recommended Practices for the Testing and Verification of Spill, Overfill, Leak Detection and Secondary Containment Equipment at UST Facilities."(f) Operation requirements for corrosion protection systems. All owners and operators of UST systems shall ensure that all required UST system components are continuously protected from corrosion, and that all corrosion protection systems are inspected and tested, in accordance with the applicable provisions of §334.49 of this title (relating to Corrosion Protection).(g) Periodic testing of spill prevention equipment and containment sumps used for interstitial monitoring of piping and periodic inspection of overfill prevention equipment.(1) Owners and operators of UST systems with spill and overfill prevention equipment and containment sumps used for interstitial monitoring of piping must meet these requirements to ensure the equipment is operating properly and will prevent releases to the environment:(A) Spill prevention equipment (such as a catchment basin, spill bucket, or other spill containment device) and containment sumps used for interstitial monitoring of piping must prevent releases to the environment by meeting one of the following:(i) The equipment is double-walled and the integrity of both walls is periodically monitored at a frequency not less than the frequency of the walkthrough inspections described in subsection (h) of this section. Owners and operators must begin meeting the requirements in clause (ii) of this subparagraph and conduct a test within 30 days of discontinuing periodic monitoring of this equipment; or(ii) The spill prevention equipment and containment sumps used for interstitial monitoring of piping (when interstitial monitoring is the primary release detection method) are tested at least once every three years to ensure the equipment is liquid tight by using vacuum, pressure, or liquid testing in accordance with one of the following criteria:(I) requirements developed by the manufacturer;(II) code of practice developed by a nationally recognized association or independent testing laboratory; or(III) low liquid level test method - the sump may be tested by filling the sump with liquid to a level that is three inches higher than the activation point of the sensor provided the following conditions are met:(-a-) the sensor is mounted and maintained at the lowest point of the sump in accordance with the requirements in §334.45(d)(1)(E)(vi) of this title (relating to Technical Standards for New Underground Storage Tank Systems);(-b-) the sensor is annually tested for functionality in accordance with the requirements in subsection (e)(1)(B) of this section;(-c-) the sensor will trigger a positive shutdown of:(-1-) the individual dispenser associated with that sump; or(-2-) submersible turbine pump associated with that sump; and(-d-) all on-site operators are trained to immediately notify the appropriate A or B level operator of the shutdown; or(IV) requirements determined by the executive director to be no less protective of human health and the environment than the requirements listed in subclauses (I) - (III) of this clause.(iii) Liquids that are used for testing as described in clause (ii) of this subparagraph may be reused for further liquid testing in other sumps, either at the same facility or at other facilities. The discharge must be made in compliance with the applicable wastewater discharge requirements or be disposed of in accordance with Chapters 330 or 335 of this title (relating to Municipal Solid Waste and Industrial Solid Waste and Municipal Hazardous Waste).(B) Overfill prevention equipment must be inspected at least once every three years. At a minimum, the inspection must ensure that overfill prevention equipment is set to activate at the correct level specified in §334.51(b)(2)(C) of this title and will activate when a regulated substance reaches that level.(C) Codes of practice. The following code of practice may be used to comply with subparagraphs (A)(ii)(II) and (B) of this paragraph: PEI Publication RP1200, "Recommended Practices for the Testing and Verification of Spill, Overfill, Leak Detection and Secondary Containment Equipment at UST Facilities."(2) Implementation dates. Owners and operators shall meet these requirements:(A) UST systems in use before September 1, 2018:(i) The requirements listed in paragraph (1) of this subsection shall apply on January 1, 2021.(ii) Initial spill prevention equipment and containment sump testing, and overfill prevention inspections (relating to the requirements in paragraph (1) of this subsection) shall be conducted by January 1, 2021.(B) UST systems brought into use on or after September 1, 2018.(i) The requirements listed in paragraph (1) of this subsection shall apply on the date the UST system was brought into use.(ii) Initial spill prevention equipment and containment sump testing, and overfill prevention inspections shall be conducted by the date the UST system was brought into use.(3) Owners and operators shall maintain records as follows (in accordance with §334.10(b)(2)(B) of this title) for spill prevention equipment, containment sumps used for interstitial monitoring of piping, and overfill prevention equipment.(A) All records of testing and inspection must be maintained for five years.(B) For spill prevention equipment and containment sumps used for interstitial monitoring of piping not tested every three years, documentation showing that the prevention equipment is double-walled and the integrity of both walls is periodically monitored must be maintained for as long as the equipment is periodically monitored. (h) Periodic operation and maintenance walkthrough inspections. To properly operate and maintain UST systems, not later than January 1, 2021, owners and operators must meet one of the following. (1) Conduct a walkthrough inspection that, at a minimum, checks the following equipment as specified in the following subparagraphs. (A) Every 30 days.(i) Spill prevention equipment. Visually check for damage; remove any liquid or debris found within 96 hours and properly dispose of the liquid or debris; check for and remove obstructions in the fill pipe; check the fill cap to make sure it is securely on the fill pipe; and, for double-walled spill prevention equipment with interstitial monitoring, check for leaks in the interstitial area. For purposes of this requirement, UST systems receiving deliveries at intervals greater than every 30 days may check spill prevention equipment prior to each delivery.(ii) Release detection equipment. Check to make sure the release detection equipment is operating with no release detection alarms or other unusual operating conditions (such as the erratic behavior of product dispensing equipment, the sudden loss of product from the UST system, or the unexplained presence of water in the tank) and ensure records of release detection testing are reviewed and current. (B) Annually.(i) Any containment sump installed on or after January 1, 2009, and any containment sump used for interstitial monitoring. Visually check for damage, leaks to the containment area, or releases to the environment; remove liquid or debris found in the containment sump within 96 hours of discovery and properly dispose of the liquid or debris; and, for double walled sumps with interstitial monitoring, check for a leak in the interstitial area.(ii) Containment sumps installed before January 1, 2009, and are not used for interstitial monitoring of piping. Visually check for damage to equipment within the sump, visually check for regulated substance releases in the containment sump and to the environment, visually check for the presence of cathodic protection if the sump contains water that is in contact with metal components that routinely contain product, and remove any debris.(iii) Submersible turbine pump and under dispenser areas that do not have containment sumps. Visually check for damage to the equipment within the area, visually check for regulated substance releases to the environment, visually check for the presence of cathodic protection if any metal components that routinely contain product are in contact with soil or water, and remove any debris.(iv) Hand held release detection equipment. Check devices, such as tank gauge sticks or groundwater bailers, for operability and serviceability.(2) Conduct operation and maintenance walkthrough inspections according to a standard code of practice developed by a nationally recognized association or independent testing laboratory that checks equipment in the same manner and frequency as requirements in paragraph (1) of this subsection. The following code of practice may be used to comply with this subsection: PEI Recommended Practice RP 900, "Recommended Practices for the Inspection and Maintenance of UST Systems."(i) Airport hydrant systems. In addition to the periodic walkthrough inspection requirements in subsection (h) of this section, owners and operators must inspect the following areas at least once every 30 days if confined space entry according to the Occupational Safety and Health Administration (see 29 Code of Federal Regulations §1910) is not required or at least annually if confined space entry is required and keep documentation of the inspection in accordance with §334.10(b) of this title.(1) Hydrant pits. Visually check for any damage, remove any liquid or debris, and check for any leaks; and(2) Hydrant piping vaults. Check for any hydrant piping leaks.(3) Implementation dates. Owners and operators shall meet these requirements:(A) Airport hydrant systems in use before September 1, 2018. The requirements listed in paragraphs (1) and (2) of this subsection shall apply on January 1, 2021.(B) Airport hydrant systems brought into use on or after September 1, 2018. The requirements listed in paragraph (1) of this subsection shall apply on the date the airport hydrant system was brought into use.(j) Operation and maintenance records. Owners and operators shall maintain records relating to the operation and maintenance of a UST system (including records related to inspection, servicing, testing, and inventory control) as prescribed in this section for at least five years, and such records shall be maintained in accordance with §334.10(b) of this title. Inspection records must include a list of each area checked, whether each area checked was acceptable or needed action taken, a description of actions taken to correct an issue, and delivery records if spill prevention equipment is checked less frequently than every 30 days due to infrequent deliveries.</content><note type="source"><p>Source Note: The provisions of this §334.48 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective May 31, 2018, 43 TexReg 3390; amended to be effective February 15, 2024, 49 TexReg 715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.49"><num value="334.49">§334.49</num><heading>Corrosion Protection</heading><content>(a) General requirements.(1) Owners and operators of underground storage tank (UST) systems (or underground metal UST system components) which are required to be protected from corrosion shall comply with the requirements in this section to ensure that releases due to corrosion are prevented.(2) All corrosion protection systems shall be designed, installed, operated, and maintained in a manner that will ensure that corrosion protection will be continuously provided to all underground metal components of the UST system.(3) Any alternative methods for corrosion protection or variances from the requirements of this section are prohibited, except when reviewed and approved by the agency pursuant to procedures for variances found in §334.43 of this title (relating to Variances and Alternative Procedures).(4) Corrosion protection in accordance with the provisions of this section shall be provided to all underground and/or totally or partially submerged metal components of any existing or new UST system which are designed or used to convey, contain, or store regulated substances, including, but not limited to, the tanks, piping (including valves, fittings, flexible connectors, swing joints, and impact/shear valves), and also to other underground metal components associated with a UST system, including but not limited to, secondary containment devices, manways, manholes, fill pipes, vent lines, submersible pump housings, spill containers, and riser pipes.(5) For internal corrosion protection, the interior bottom surface of new metal tanks installed on or after September 29, 1989, shall be fitted with a striker plate under all fill, gauge, and monitoring openings.(6) When provisions of this subsection require compliance with a specific code or standard of practice developed by a nationally recognized association or independent testing laboratory, the most recent version of the referenced code in effect at the time of the regulated UST activity shall be applicable.(7) For a UST system to be placed temporarily out of service, the owner or operator must comply with the requirements of §334.54(c) of this title (relating to Temporary Removal from Service).(b) Allowable corrosion protection methods. All components of a UST system which are designed to convey, contain, or store regulated substances shall be protected from corrosion by one or more of the following methods.(1) The component may be constructed of a noncorrodible material which is compatible with the stored regulated substance(s).(2) The component may be electrically isolated from the corrosive elements of the surrounding soil, backfill, groundwater or any other water, and from other metallic components by installing the component in an open area (e.g., manway, sump, vault, pit, etc.) where periodic visual inspection of all parts of the component for the presence of corrosion or released substances is practicable.(3) The component may be electrically isolated from the corrosive elements of the surrounding soil, backfill, groundwater or any other water, and from other metallic components by completely enclosing the component in a secondary containment device (e.g., wall, jacket, or liner), provided that:(A) the secondary containment device is designed and installed in accordance with the applicable technical and installation standards in §334.45(d) of this title (relating to Technical Standards for New Underground Storage Tank Systems) and §334.46(f) of this title (relating to Installation Standards for New Underground Storage Tank Systems), and in accordance with an applicable code or standard of practice developed by a nationally recognized association or independent testing laboratory, and is either:(i) constructed of a noncorrodible material which is compatible with the stored regulated substance;(ii) electrically isolated from the protected component and other metallic components; or(iii) cathodically protected by either a factory-installed or field-installed cathodic protection system meeting the applicable requirements of subsection (c) of this section; and(B) the interstitial space between the protected component and the secondary containment device shall be free of any soil, backfill material, groundwater or any other water, or other substances, and the protected component shall be regularly inspected and tested for electrical isolation in accordance with the provisions in subsection (d)(1) of this section.(4) Tanks (only) may be factory-constructed either as a steel/fiberglass-reinforced plastic composite tank, or as a steel tank with a bonded fiberglass-reinforced plastic external cladding or laminate, or as a steel tank with a bonded fiberglass reinforced polyurethane coating, as a steel tank with a bonded polyurethane external coating, or as a steel tank completely contained within a nonmetallic external tank jacket in accordance with the requirements in §334.45(b)(1)(D), (E), or (F) of this title, as applicable.(5) The component may be coated with a suitable dielectric material, equipped with appropriate dielectric fittings for electrical isolation, and equipped with either:(A) a factory-installed cathodic protection system meeting the requirements of subsection (c)(1) of this section; or(B) a field-installed cathodic protection system meeting the requirements of subsection (c)(2) of this section.(6) Except for the tanks and the piping system components, other underground components of a UST system (including vent lines, fill risers, spill containment vessels, and tank fittings (e.g., bunghole plugs)) which do not routinely contain regulated substances may be protected from corrosion by thorough coating or wrapping with a suitable dielectric material which is compatible with the stored regulated substance without the need for the use of other corrosion protection methods.(7) Corrosion protection in accordance with the requirements of this subchapter is not required if it is determined by a corrosion specialist that corrosion protection of an underground metal UST system or UST system component is unnecessary because the site is not corrosive enough to cause a release due to corrosion for the operational life of the UST system. The upgrade or repair of an existing corrosion protection system for an underground metal UST system or UST system component is not required if it is determined by a corrosion specialist that said upgrading or repair is unnecessary and that the protection provided by the existing corrosion protection system is sufficient to prevent a release due to corrosion for the operational life of the UST system. In either case, the determination of the corrosion specialist must be made in writing, must be signed by the corrosion specialist (corrosion specialist must also seal the written determination if he or she is a qualified duly licensed professional engineer in Texas), and must be maintained by the owner and operator as part of the records for the facility in keeping with the requirements of subsection (e) of this section and §334.10(b) of this title (relating to Reporting and Recordkeeping).(c) Cathodic protection systems.(1) Factory-installed cathodic protection systems.(A) A factory-installed cathodic protection system on any UST component shall be designed, fabricated, installed, operated, and maintained in accordance with applicable codes or standards of practice developed for such cathodic protection method by a nationally recognized association or independent testing laboratory.(B) At a minimum, the factory-installed cathodic protection system shall include the following components:(i) a suitable dielectric external coating or laminate, which shall thoroughly cover all exterior surfaces exposed to the soil, backfill, or groundwater or any other water, and which shall consist of materials which are compatible with the stored regulated substances;(ii) dielectric isolation bushings, connections, or fittings, which shall be installed at all locations where the protected component connects to other metallic system components, and which shall be constructed of materials which are compatible with the stored regulated substances; and(iii) sacrificial anodes which are firmly attached and electrically connected to the protected components and which are positioned and sized to provide complete cathodic protection for all parts of the protected component.(2) Field-installed cathodic protection systems.(A) A field-installed cathodic protection system on any UST system component shall be designed by a qualified corrosion specialist, and shall be designed, installed, operated, and maintained in accordance with applicable codes or standards of practice developed for such cathodic protection systems by a nationally recognized association or independent testing laboratory.(B) Impressed current cathodic protection systems shall be designed and equipped with appropriate equipment or devices capable of indicating the operational status of the system at all times.(C) In addition to the standard inspection and testing requirements for all cathodic protection systems required in paragraph (4) of this subsection, all impressed current cathodic protection systems shall be regularly inspected by the owner or operator (or the owner's designated representative) to ensure that the rectifier and other system components are operating properly. Such inspections shall be performed at least once every 60 days.(3) Test stations and connections. To allow for the periodic testing required in paragraph (4) of this subsection, any factory-installed or field-installed cathodic protection system shall include appropriate connections, insulated lead wires, and accessible test stations. All lead wires connected to the tanks, anodes, reference electrodes, and other components associated with the cathodic protection system shall terminate at one or more test stations. The termination of each lead wire at a test station shall be clearly labeled or coded to properly identify the specific component to which it is connected.(4) Inspection and testing requirements for all cathodic protection systems.(A) Except as provided in subsection (d)(2) of this section, all cathodic protection systems which are used to provide corrosion protection for any component of a UST system shall be inspected and tested to determine the adequacy of the cathodic protection by a qualified corrosion specialist or corrosion technician in accordance with the requirements in this paragraph.(B) The inspection and testing criteria used to determine the adequacy of the cathodic protection shall be in accordance with a code or standard of practice developed by a nationally recognized corrosion association or independent testing laboratory, such as:(i) NACE International Test Method TM0101, "Measurement Techniques Related to Criteria for Cathodic Protection of Underground Storage Tank Systems or Submerged Metallic Tank Systems;"(ii) NACE International Test Method TM0497, "Measurement Techniques Related to Criteria for Cathodic Protection on Underground or Submerged Metallic Piping Systems;"(iii) Steel Tank Institute Recommended Practice R051, "Cathodic Protection Testing Procedures for sti-P3 USTs;"(iv) NACE International Standard Practice SP0285, "Corrosion Control of Underground Storage Tank Systems by Cathodic Protection;" or(v) NACE International Standard Practice SP0169, "Control of External Corrosion on Underground or Submerged Metallic Piping Systems."(C) All cathodic protection systems shall be inspected and tested for operability and adequacy of protection within three to six months after installation and at a subsequent frequency of at least once every three years.(d) Requirements for other corrosion protection methods.(1) Electrically isolated components.(A) Except for jacketed tanks meeting the requirements of §334.45(b)(1)(F) of this title, any metal component of a UST system which is protected from corrosion by one of the electrical isolation methods described in subsection (b)(2) and (3) of this section, and which is not equipped with a cathodic protection system, shall be periodically inspected and tested to ensure that the metal component remains electrically isolated from the surrounding soil, backfill, groundwater or any other water, and from other metal components in accordance with one or more of the following procedures.(i) When visual inspection is possible, the entire exterior surface of such component may be thoroughly inspected visually by qualified personnel for the presence of corrosion or released regulated substances.(ii) If visual inspection is not possible, the component may be inspected and tested by a qualified corrosion technician or by a qualified corrosion specialist by taking structure to soil voltage readings in accordance with procedures established by a code or standard of practice developed by a nationally recognized association or independent testing laboratory.(iii) The component may be inspected and/or tested by an alternative method which has been reviewed and determined by the agency to ascertain electrical isolation and to prevent the release or threatened release of any stored regulated substance in a manner that is no less protective of human health and safety and the environment than the methods described in clauses (i) and (ii) of this subparagraph, in accordance with the procedures in §334.43 of this title.(B) The inspections and tests required in subparagraph (A) of this paragraph shall be conducted within three to six months after installation of the metal component, and then once every three years thereafter for the remaining operational life of the UST system.(C) If the tests required in subparagraph (A) of this paragraph indicate that the metal component is no longer electrically isolated from the surrounding soil, backfill, groundwater or any other water, or from other metal components, a qualified corrosion specialist shall review the test results and thoroughly inspect the area of the metal component to ascertain the extent of electrical isolation and corrosion protection for the component.(D) If the qualified corrosion specialist determines that the metal component is no longer adequately protected from corrosion, the owner or operator shall assure that one or more of the following procedures are completed within 60 days of the date of such determination:(i) appropriate repairs or modifications shall be made to restore the electrical isolation of the protected component; or(ii) a field-installed cathodic protection system meeting the requirements of subsection (c)(2) of this section shall be installed.(2) Dual-protected tanks. If a steel/fiberglass-reinforced plastic composite tank, a steel tank with a bonded fiberglass-reinforced plastic external cladding or laminate, a steel tank with a bonded fiberglass reinforced polyurethane coating, or a steel tank with a bonded polyurethane coating is also equipped with a factory-installed cathodic protection system, then the normal inspection and testing requirements for cathodic protection systems in subsection (c)(4) of this section may be waived. This paragraph shall be applicable only to tanks meeting the design and construction requirements in §334.45(b)(1)(D) or (E) of this title, as applicable, and when such tanks are fitted with factory-installed cathodic protection systems meeting the requirements of subsection (c)(1) of this section.(e) Corrosion protection records.(1) Owners and operators shall maintain all corrosion protection records required in this subsection in accordance with the requirements in §334.10(b) of this title.(2) Owners and operators shall maintain records adequate to demonstrate compliance with the corrosion protection requirements in this section, and in accordance with the following minimum requirements.(A) All appropriate installation records related to the corrosion protection system, as listed in §334.46(i) of this title, shall be maintained for as long as the corrosion protection system is used, including:(i) the name, address, telephone number, and corrosion protection credentials of either the company which designed the factory-installed cathodic protection system or the corrosion specialist who designed the field-installed cathodic protection system, as applicable;(ii) drawings or plans depicting the locations of all cathodic protection system components, including the locations of all test stations; and(iii) operating instructions and warranty information, maintenance schedules, and testing procedures for all operational components of the cathodic protection systems.(B) The following corrosion protection records shall be maintained for at least five years after the applicable test or inspection is conducted:(i) results of all tests and inspections of any impressed current cathodic protection system conducted in accordance with subsection (c)(2)(C) of this section; and(ii) results of all tests and inspections of the adequacy of any cathodic protection system conducted in accordance with subsection (c)(4) of this section; and(iii) results of all tests and inspections to assure corrosion protection for electrically isolated components in accordance with subsection (d)(1) of this section.</content><note type="source"><p>Source Note: The provisions of this §334.49 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective January 2, 1995, 19 TexReg 10104; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective October 30, 2008, 33 TexReg 8790; amended to be effective March 17, 2011, 36 TexReg 1675; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.50"><num value="334.50">§334.50</num><heading>Release Detection</heading><content>(a) General requirements.(1) Owners and operators of new and existing underground storage tank (UST) systems shall provide a method, or combination of methods, of release detection which shall be:(A) capable of detecting a release from any portion of the UST system which contains regulated substances including the tanks, piping, and other underground ancillary equipment;(B) installed, calibrated, operated, maintained, utilized, and interpreted (as applicable) in accordance with the manufacturer's and/or methodology provider's specifications and instructions consistent with the other requirements of this section, and by personnel possessing the necessary experience, training, and competence to accomplish such requirements; and(C) capable of meeting the particular performance requirements of such method (or methods) as specifically prescribed in this section, based on the performance claims by the equipment manufacturer or methodology provider/vendor, as verified by third-party evaluation conducted by a qualified independent testing organization, using applicable United States Environmental Protection Agency protocol, provided that the following additional requirements shall also be met.(i) Any performance claims, together with their bases or methods of determination including the summary portion of the independent third-party evaluation, shall be obtained by the owner and/or operator from the equipment manufacturer, methodology provider, or installer and shall be in writing.(ii) When any of the following release detection methods are used on or after December 22, 1990 (except for methods permanently installed and in operation prior to that date), such method shall be capable of detecting the particular release rate or quantity specified for that method such that the probability of detection shall be at least 95% and the probability of false alarm shall be no greater than 5.0%:(I) tank tightness testing, as prescribed in subsection (d)(1)(A) of this section;(II) automatic tank gauging, as prescribed in subsection (d)(4) of this section;(III) automatic line leak detectors for piping, as prescribed in subsection (b)(2)(A)(i) of this section;(IV) piping tightness testing, as prescribed in subsection (b)(2)(A)(ii)(I) of this section;(V) electronic leak monitoring systems for piping, as prescribed in subsection (b)(2)(A)(ii)(III) of this section; and(VI) statistical inventory reconciliation (SIR), as prescribed in subsection (d)(9) of this section.(2) When a release detection method operated in accordance with the particular performance standards for that method indicates that a release either has or may have occurred, the owners and operators shall comply with the applicable release reporting, investigation, and corrective action requirements in Subchapter D of this chapter (relating to Release Reporting and Corrective Action).(3) Owners and operators of all UST systems shall comply with the release detection requirements of this section in accordance with the applicable schedules in §334.44 of this title (relating to Implementation Schedules).(4) As prescribed in §334.47(a)(2) of this title (relating to Technical Standards for Existing Underground Storage Tank Systems), any existing UST system that cannot be equipped or monitored with a method of release detection that meets the requirements of this section shall be permanently removed from service in accordance with the applicable procedures in §334.55 of this title (relating to Permanent Removal from Service) no later than 60 days after the implementation date for release detection as prescribed by the applicable schedules in §334.44 of this title.(5) Any owner or operator who plans to install a release detection method for a UST system shall comply with the applicable construction notification requirements in §334.6 of this title (relating to Construction Notification for Underground Storage Tanks (USTs) and UST Systems), and upon completion of the installation of such method shall also comply with the applicable registration and certification requirements of §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems) and §334.8 of this title (relating to Certification for Underground Storage Tanks (USTs) and UST Systems).(6) Any equipment installed or used for conducting release detection for a UST system shall be listed, approved, designed, and operated in accordance with standards developed by a nationally recognized association or independent testing laboratory (e.g., Underwriters Laboratories, Inc.) for such installation or use, as specified in §334.42(d) of this title (relating to General Standards).(7) For a UST system to be placed temporarily out-of-service, the owner or operator must comply with the requirements of §334.54(c) of this title (relating to Temporary Removal from Service).(b) Release detection requirements for all UST systems. Owners and operators of all UST systems shall ensure that release detection equipment or procedures are provided in accordance with the following requirements.(1) Release detection requirements for tanks.(A) Tanks installed prior to January 1, 2009. Except as provided in subparagraph (C) of this paragraph and in subsection (d)(9) of this section, all such tanks shall be monitored in a manner which will detect a release at a frequency of at least once every 30 days by using one or more of the release detection methods described in subsection (d)(4) - (10) of this section.(B) Tanks installed on or after January 1, 2009. All such tanks shall be monitored in a manner which will detect a release at a frequency of at least once every 30 days by using interstitial monitoring as prescribed in subsection (d)(7) of this section as the primary release detection method no later than September 1, 2018.(C) The manual tank gauging method of release detection, as described in subsection (d)(2) of this section, may be used as the sole release detection system for tanks with a nominal capacity of 1,000 gallons or fewer only.(D) 30-day monthly tank gauging method of release detection, as described in subsection (d)(3) of this section, may be used as the sole release detection method for emergency generator tanks only.(2) Release detection for piping. Piping in a UST system shall be monitored in a manner which will detect a release from any portion of the piping system, in accordance with the following requirements.(A) Requirements for pressurized piping. UST system piping that conveys regulated substances under pressure shall be in compliance with the following requirements.(i) Each separate pressurized pipe (except for piping utilized in airport hydrant systems) shall be equipped with an automatic line leak detector meeting the following requirements.(I) The line leak detector shall be capable of detecting any release from the piping system of three gallons per hour when the piping pressure is at ten pounds per square inch.(II) The line leak detector shall be capable of alerting the UST system operator of any release within one hour of occurrence either by shutting off the flow of regulated substances, or by substantially restricting the flow of regulated substances.(III) The line leak detector shall be tested at least once per year for performance and operational reliability and shall be properly calibrated and maintained, in accordance with the manufacturer's specifications and recommended procedures.(ii) Piping installed prior to January 1, 2009. In addition to the required line leak detector prescribed in clause (i) of this subparagraph, each pressurized pipe shall also be tested or monitored for releases in accordance with at least one of the following methods.(I) The piping may be tested at least once per year by means of a piping tightness test conducted in accordance with a code or standard of practice developed by a nationally recognized association or independent testing laboratory. Any such piping tightness test shall be capable of detecting any release from the piping system of 0.1 gallons per hour when the piping pressure is at 150% of normal operating pressure.(II) Except as provided in subsection (d)(9) of this section, the piping may be monitored for releases at least once every 30 days by using one or more of the release detection methods prescribed in subsection (d)(5) - (10) of this section.(III) The piping may be monitored for releases at least once every 30 days by means of an electronic leak monitoring system capable of detecting any release from the piping system of 0.2 gallons per hour at normal operating pressure.(iii) Piping installed or replaced on or after January 1, 2009. In addition to the required line leak detector prescribed in clause (i) of this subparagraph, each pressurized pipe shall also be tested or monitored for releases at least once every 30 days by using interstitial monitoring as prescribed in subsection (d)(7) of this section as the primary release detection method no later than September 1, 2018.(B) Requirements for suction piping and gravity flow piping.(i) Piping installed prior to January 1, 2009. Except as provided in clause (iii) of this subparagraph, each separate pipe in a UST piping system that conveys regulated substances either under suction or by gravity flow shall meet at least one of the following requirements.(I) Each separate pipe may be tested at least once every three years by means of a positive or negative pressure tightness test applicable to underground product piping and conducted in accordance with a code or standard of practice developed by a nationally recognized association or independent testing laboratory. Any such piping test shall be capable of detecting any release from the piping system of 0.1 gallons per hour.(II) Each pipe may be monitored for releases at least once every 30 days by using one or more of the release detection methods prescribed in subsection (d)(5) - (10) of this section.(ii) Piping installed or replaced on or after January 1, 2009. Except as provided in clause (iii) of this subparagraph, each suction line shall be tested or monitored for releases at least once every 30 days by using interstitial monitoring as prescribed in subsection (d)(7) of this section as the primary release detection method no later than September 1, 2018.(iii) No release detection methods are required to be installed or applied for any piping system that conveys regulated substances under suction when such suction piping system is designed and constructed in accordance with the following standards:(I) the below-grade piping operates at less than atmospheric pressure;(II) the below-grade piping is sloped so that all the contents of the pipe will drain back into the storage tank if the suction is released;(III) no more than one check valve is included in each suction line;(IV) the check valve is located aboveground, directly below and as close as practical to the suction pump; and(V) verification that the requirements under subclauses (I) - (IV) of this clause have been met can be provided in the form of:(-a-) signed as-built drawings or plans provided by the installer or by a professional engineer who is duly licensed to practice in Texas; or(-b-) signed written documentation provided by a UST contractor who is properly registered with the agency, by a UST installer who is properly licensed with the agency, or by a professional engineer who is duly licensed to practice in Texas.(C) Monitoring secondary containment. In addition to the requirements in subparagraphs (A) and (B) of this paragraph, all piping in a hazardous substance UST system shall also be equipped with a secondary containment system and related release detection equipment, as prescribed in subsection (c) of this section.(c) Additional release detection requirements for hazardous substance UST systems. In addition to the release detection requirements for all UST systems prescribed in subsections (a) and (b) of this section, owners and operators of all hazardous substance UST systems shall also assure compliance with the following additional requirements.(1) All new hazardous substance UST systems shall be in compliance with the requirements of paragraph (3) of this subsection for the entire operational life of the system.(2) All existing hazardous substance UST systems shall be brought into compliance with the requirements of paragraph (3) of this subsection no later than December 22, 1998.(3) Secondary containment. All hazardous substance UST systems (including tanks and piping) shall be equipped with a secondary containment system which shall be designed, constructed, installed, and maintained in accordance with §334.45(d) and §334.46(f) of this title (relating to Technical Standards for New Underground Storage Tank Systems; and Installation Standards for New Underground Storage Tank Systems).(4) Release detection.(A) All hazardous substance UST systems (including tanks and piping) installed prior to January 1, 2009, shall include one or more of the release detection methods or equipment prescribed in subsection (d)(7) - (10) of this section, which shall be capable of monitoring the space between the primary tank and piping walls and the secondary containment wall or barrier.(B) All hazardous substance UST systems (including tanks and piping) installed on or after January 1, 2009, shall be monitored by using interstitial monitoring as prescribed in subsection (d)(7) of this section as the primary release detection method no later than September 1, 2018.(d) Allowable methods of release detection. Tanks in a UST system may be monitored for releases using one or more of the methods included in paragraphs (2) - (10) of this subsection. Piping in a UST system may be monitored for releases using one or more of the methods included in paragraphs (5) - (10) of this subsection. Any method of release detection for tanks and/or piping in this section shall be allowable only when installed (or applied), operated, calibrated, and maintained in accordance with the particular requirements specified for such method in this subsection.(1) Tank tightness and inventory control requirements. A combination of tank tightness testing and inventory control may be used as a tank release detection method only until December 22, 1998, subject to the following conditions and requirements.(A) Tank tightness test. Any tank tightness test shall be conducted in conformance with the following standards.(i) The tank tightness test shall be conducted in accordance with a code or standard of practice developed by a nationally recognized association or independent testing laboratory.(ii) The tank tightness test shall be performed by qualified personnel who possess the requisite experience, training, and competence to conduct the test properly, who are present at the facility and who maintain responsible oversight throughout the entire testing procedure, and who have been certified by the manufacturer or developer of the testing equipment as being qualified to perform the test. The tank tightness test shall be conducted in strict accordance with the testing procedures developed by the system manufacturer or developer.(iii) The tank tightness test shall be capable of detecting a release of 0.1 gallons per hour from any portion of the tank which contains regulated substances.(iv) The tank tightness test shall be performed in a manner that will account for the effects of vapor pockets, thermal expansion or contraction of the stored substance, temperature of the stored substance, temperature stratification, evaporation or condensation, groundwater elevation, pressure variations within the system, tank end deflection, tank deformation, and any other factors that could affect the accuracy of the test procedures.(B) Inventory control. All inventory control procedures shall be in conformance with the following requirements.(i) All inventory control procedures shall be in accordance with a code or standard of practice developed by a nationally recognized association or independent testing laboratory, such as American Petroleum Institute Publication 1621, "Bulk Liquid Stock Control at Retail Outlets;" and(ii) Reconciliation of detailed inventory control records shall be conducted at least once every 30 days, and shall be sufficiently accurate to detect a release as small as the sum of 1.0% of the total substance flow-through for the 30-day period plus 130 gallons.(iii) The operator shall assure that the following additional procedures and requirements are followed.(I) Inventory volume measurement for regulated substance inputs, withdrawals, and the amount still remaining in the tank shall be recorded each operating day.(II) The equipment used shall be capable of measuring the level of stored substance over the full range of the tank's height to the nearest 1/8 inch.(III) Substance dispensing shall be metered and recorded within an accuracy of six or less cubic inches for every five gallons of product withdrawn.(IV) The measurement of any water level in the bottom of the tank shall be made to the nearest 1/8 inch at least once every 30 days, and appropriate adjustments to the inventory records shall be made.(2) Manual tank gauging. Manual tank gauging may be used as a tank release detection method, subject to the following limitations and requirements.(A) Manual tank gauging in accordance with this subparagraph may be used as the sole method of tank release detection only for petroleum substance tanks having a nominal capacity of 1,000 gallons or less.(B) The use of manual tank gauging shall not be considered an acceptable method for meeting the release detection requirements of this section for any tanks with a nominal capacity greater than 1,000 gallons.(C) When used for compliance with the release detection requirements of this section, the procedures and requirements in the following clauses shall be applicable.(i) For purposes of this subparagraph only, the following definitions are applicable.(I) Level measurement--The average of two consecutive liquid level readings from a tank gauge, measuring stick, or other measuring equipment.(II) Gauging period--A weekly period during which no substance is added to or removed from the tank. The duration of the gauging period is dependent upon tank volume and diameter, as specified in clause (v) of this subparagraph.(III) Weekly deviation--The variation between the level measurements taken at the beginning and the end of one gauging period, converted to and expressed as gallons.(IV) Monthly deviation--The arithmetic average of four consecutive weekly deviations, expressed as gallons.(ii) Any measuring equipment shall be capable of measuring the level of stored substance over the full range of the tank's height to the nearest 1/8 inch.(iii) Separate liquid level measurements in the tank shall be taken weekly at the beginning and the ending of the gauging period, and the weekly deviation shall be determined from such level measurements.(iv) Once each month, after four consecutive weekly deviations are determined, a monthly deviation shall be calculated.(v) For the purposes of the manual tank gauging method of release detection, a release shall be indicated when either the weekly deviation or the monthly deviation exceeds the maximum allowable standards indicated in the following subclauses:(I) for a tank with a capacity of 550 gallons or less (any tank diameter): minimum duration of gauging period = 36 hours; weekly standard = ten gallons; monthly standard = five gallons;(II) for a tank with a capacity of 551 gallons to 1,000 gallons (when tank diameter is 64 inches): minimum duration of gauging period = 44 hours; weekly standard = nine gallons; monthly standard = four gallons; and(III) for a tank with a capacity of 551 gallons to 1,000 gallons (when tank diameter is 48 inches): minimum duration of gauging period = 58 hours; weekly standard = 12 gallons; monthly standard = six gallons.(vi) When either the weekly standard or the monthly standard is exceeded and a suspected release is thereby indicated, the owner or operator shall comply with the applicable release reporting, investigation, and corrective action requirements of Subchapter D of this chapter.(3) Monthly (every 30 days) tank gauging. Monthly tank gauging may be used as a tank release detection method, subject to the following limitations and requirements.(A) Monthly tank gauging in accordance with this paragraph may be used as the sole method of tank release detection only for emergency generator tanks.(B) The use of monthly tank gauging shall not be considered an acceptable method for meeting the release detection requirements of this section for any tanks other than emergency generator tanks.(C) When used for compliance with the release detection requirements of this section, the procedures and requirements in the following clauses shall be applicable.(i) For purposes of this subparagraph only, the following definitions are applicable.(I) Level measurement--The average of two consecutive liquid level readings from a tank gauge, measuring stick, or other manual or automatic measuring equipment.(II) Gauging period--A period of at least 36 hours during which no substance is added to or removed from the tank.(III) Monthly deviation--The variation between the level measurements taken at the beginning and the end of one gauging 30-day period, converted to and expressed as gallons.(ii) Any measuring equipment (whether operated manually or automatically) shall be capable of measuring the level of a stored substance over the full range of the tank's height to the nearest 1/8 inch.(iii) Separate liquid level measurements in the tank shall be taken at least once every 30 days at the beginning and the ending of the gauging period, and the monthly deviation shall be determined from such level measurements.(iv) For the purposes of the 30-day tank gauging method of release detection, a release shall be indicated when the monthly deviation exceeds the maximum allowable standards indicated in the following subclauses:(I) for a tank with a capacity of 550 gallons or less: monthly standard = five gallons;(II) for a tank with a capacity of 551 gallons to 1,000 gallons: monthly standard = seven gallons;(III) for a tank with a capacity of 1,001 gallons to 2,000 gallons: monthly standard = 13 gallons; and(IV) for a tank with a capacity greater than 2,000 gallons: monthly standard = 1.0% of the total tank capacity.(v) When the monthly standard is exceeded and a suspected release is thereby indicated, the owner or operator shall comply with the applicable release reporting, investigation, and corrective action requirements of Subchapter D of this chapter.(4) Automatic tank gauging in combination with inventory control.(A) A combination of automatic tank gauging and inventory control may be used as a tank release detection method, subject to the following requirements.(i) Inventory control procedures shall be in compliance with paragraph (1)(B) of this subsection.(ii) The automatic tank gauging equipment shall be capable of:(I) automatically monitoring the in-tank liquid levels, conducting automatic tests for substance loss, and collecting data for inventory control purposes; and(II) performing an automatic test for substance loss that can detect a release of 0.2 gallon per hour from any portion of the tank which contains regulated substances.(iii) The automatic tank gauge testing must be performed with the system operating in one of the following modes:(I) in-tank static testing conducted at least once every 30 days; or(II) continuous in-tank leak detection operating on an uninterrupted basis or operating within a process that allows the system to gather incremental measurements to determine the leak status of the tank at least once every 30 days.(B) For emergency generator tanks and used oil tanks only, automatic tank gauging may be used as a tank release detection method without inventory control, provided that the automatic tank gauging equipment shall be capable of:(i) automatically monitoring the in-tank liquid levels;(ii) conducting continuous automatic tests for substance loss during the periods when the emergency generator engine is not in operation;(iii) performing an automatic test for substance loss that can detect a release of 0.2 gallon per hour from any portion of the tank which contains regulated substances; and(iv) measuring the water level at the bottom of the tank to the nearest 1/8 of an inch at least once every 30 days.(5) Vapor monitoring. Equipment and procedures designed to test or monitor for the presence of vapors from the regulated substance (or from a related tracer substance) in the soil gas of the backfilled excavation zone may be used, subject to the following limitations and requirements.(A) The bedding and backfill materials in the excavation zone shall be sufficiently porous to allow vapors from any released regulated substance (or related tracer substance) to rapidly diffuse through the excavation zone (e.g., gravel, sand, crushed rock).(B) The stored regulated substance, or any tracer substance placed in the tank system, shall be sufficiently volatile so that, in the event of a substance release from the UST system, vapors will develop to a level that can be readily detected by the monitoring devices located in the excavation zone.(C) The capability of the monitoring device to detect vapors from the stored regulated substance shall not be adversely affected by the presence of any groundwater, rainfall, and/or soil moisture in a manner that would allow a release to remain undetected for more than 30 days.(D) Any preexisting background contamination in the excavation zone shall not interfere with the capability of the vapor monitoring equipment to detect releases from the UST system.(E) The vapor monitoring equipment shall be designed to detect vapors from either the stored regulated substance, a component or components of the stored substance, or a tracer substance placed in the UST system, and shall be capable of detecting any significant increase in vapor concentration above preexisting background levels.(F) Prior to installation of any vapor monitoring equipment, the site of the UST system (within the excavation zone) shall be assessed by qualified personnel to:(i) ensure that the requirements in subparagraphs (A) - (D) of this paragraph have been met; and(ii) determine the appropriate number and positioning of any monitoring wells and/or observation wells, so that releases into the excavation zone from any part of the UST system can be detected within 30 days.(G) All monitoring wells and observation wells shall be designed and installed in accordance with the requirements of §334.46(g) of this title.(6) Groundwater monitoring. Equipment or procedures designed to test or monitor for the presence of regulated substances floating on, or dissolved in, the groundwater in the excavation zone may be used, subject to the following limitations and requirements.(A) The stored regulated substance shall be immiscible in water and shall have a specific gravity of less than one.(B) The natural groundwater level shall never be more than 20 feet (vertically) from the ground surface, and the hydraulic conductivity of the soils or backfill between all parts of the UST system and the monitoring points shall not be less than 0.01 centimeters per second (i.e., the soils or backfill shall consist of gravels, coarse to medium sands, or other similarly permeable material).(C) Any automatic monitoring devices that are employed shall be capable of detecting the presence of at least 1/8 inch of free product on top of the groundwater in the monitoring well or observation well. Any manual monitoring method shall be capable of detecting a visible sheen or other accumulation of regulated substances in, or on, the groundwater in the monitoring well or observation well.(D) Any preexisting background contamination in the monitored zone shall not interfere with the capability of the groundwater monitoring equipment or methodology to detect releases from the UST system, and the groundwater monitoring equipment or methodology shall be capable of detecting any significant increase above preexisting background levels in the amount of regulated substance floating on, or dissolved in, the groundwater.(E) Prior to installation of any groundwater monitoring equipment, the site of the UST system (within and immediately below the excavation zone) shall be assessed by qualified personnel to:(i) ensure compliance with the requirements of subparagraphs (A) and (B) of this paragraph; and(ii) determine the appropriate number and positioning of any monitoring wells and/or observation wells, so that releases from any part of the UST system can be detected within 30 days.(F) All monitoring wells and observation wells shall be designed, installed, and maintained in accordance with the requirements in §334.46(g) of this title.(7) Interstitial monitoring for double-wall or jacketed UST systems. Equipment designed to test or monitor for the presence of regulated substance vapors or liquids in the interstitial space between the inner (primary) and outer (secondary) walls of a double-wall or jacketed UST system may be used, subject to the following conditions and requirements.(A) Any double-wall UST system using this method of release detection shall be designed, constructed, and installed in accordance with the applicable technical and installation requirements in §334.45(d) and §334.46(f) of this title.(B) The sampling, testing, or monitoring method shall be capable of detecting any release of stored regulated substances from any portion of the primary tank or piping within 30 days of the release.(C) The sampling, testing, or monitoring method shall be capable of detecting a breach or failure in the primary wall and the entrance of groundwater or any other water into the interstitial space due to a breach in the secondary wall of the double-wall or jacketed tank or piping system within 30 days of such breach or failure (whether or not a stored regulated substance has been released into the environment).(8) Monitoring of UST systems with secondary containment barriers. Equipment designed to test or monitor for the presence of regulated substances (liquids or vapors) in the excavation zone between the UST system and an impermeable secondary containment barrier immediately around the UST system may be used, subject to the following conditions and requirements.(A) Any secondary containment barrier or liner system at a UST system using this method of release detection shall be designed, constructed, and installed in accordance with the applicable technical and installation requirements in §334.45(d) and §334.46(f) of this title.(B) The sampling, testing, or monitoring method shall be capable of detecting any release of stored regulated substance from any portion of the UST system into the excavation zone between the UST system and the secondary containment barrier within 30 days of the release.(C) The sampling, testing, or monitoring method shall be designed and installed in a manner that will ensure that groundwater, soil moisture, and rainfall will not render the method inoperative where a release could remain undetected for more than 30 days.(D) Prior to installation of any secondary containment release monitoring equipment, the site of the UST system shall be assessed by qualified personnel to:(i) ensure that the secondary containment barrier will be positioned above the groundwater level and outside the designated 25-year floodplain, unless the barrier and the monitoring equipment are designed for use under such conditions; and(ii) determine the appropriate number and positioning of any observation wells.(E) All observation wells shall be designed and installed in accordance with the requirements in §334.46(g) of this title.(9) SIR in combination with inventory control.(A) A combination of SIR and inventory control may be used as a release detection method for UST system tanks and piping, subject to the following requirements.(i) Inventory control procedures must be in compliance with paragraph (1)(B) of this subsection.(ii) The SIR methodology as utilized by its provider or vendor, or by its vendor-authorized franchisee or licensee or representative must:(I) analyze inventory control records in a manner which can detect a release of 0.2 gallons per hour from any part of the UST system; and(II) use a threshold that does not exceed one-half the minimum detectable leak rate.(iii) The UST system owner and/or operator must take appropriate steps to assure that they receive an analysis report from the entity which actually performs the SIR analysis for the 30-day period (either the SIR provider/vendor or the provider/vendor-authorized franchisee or licensee or representative) in no more than 15 calendar days following the last day of the 30-day period for which the analysis is performed. This analysis report must, at minimum:(I) state the name of the SIR provider/vendor and the name and version of the SIR methodology which was utilized for the analysis as they are listed in the independent third-party evaluation of that methodology;(II) state the name of the company and the individual (or the name of the individual if no company affiliation) who performed the analysis, if it was performed by a provider/vendor-authorized franchisee or licensee or representative;(III) state the name and address of the facility at which analysis is performed and provide a description of each UST system for which analysis has been performed;(IV) state the date that the analysis was conducted;(V) quantitatively state in gallons per hour for each UST system being monitored: the leak threshold for the 30-day period analyzed, and the minimum detectable leak rate for the 30-day period analyzed, and the indicated leak rate for the 30-day period; and(VI) qualitatively state one of the following for each UST system being monitored: "pass," "fail," or "inconclusive."(iv) Any UST system analysis report result other than "pass" must be reported to the agency by the UST system owner or operator as a suspected release in accordance with §334.72 of this title (relating to Reporting of Suspected Releases).(v) Any UST system analysis report result of "inconclusive" which has not been investigated and quantified as a "pass" (in the form of a replacement UST system analysis report meeting the requirements of clause (iii) of this subparagraph) must be reported to the agency as a suspected release within 72 hours of the time of receipt of the inconclusive analysis report result by the UST system owner or operator.(B) At least once per calendar quarter, the SIR provider/vendor must select at random, at least one of the individual UST system analyses performed by each of its authorized franchisees or licensees or representatives during that period and audit that analysis to assure that provider/vendor standards are being maintained with regard to the acceptability of inventory control record data, the acceptability of analysis procedures, and the accuracy of analysis results. The written result of that audit must be provided to the authorized franchisee or licensee or representative and to the owner and/or operator of the audited UST system(s) by the SIR provider/vendor during that calendar quarter. In addition, within 30 days following each calendar quarter, the SIR provider/vendor must provide to the agency a list containing the name and address of each of its authorized franchisees or licensees or representatives which specifies for each one, the name and address of each facility at which one or more UST system audits were performed during the previous calendar quarter.(10) Alternative release detection method. Any other release detection method, or combination of methods, may be used if such method has been reviewed and determined by the agency to be capable of detecting a release from any portion of the UST system in a manner that is no less protective of human health and safety and the environment than the methods described in paragraphs (2) - (9) of this subsection, in accordance with the provisions of §334.43 of this title (relating to Variances and Alternative Procedures).(e) Release detection records.(1) Owners and operators shall maintain the release detection records required in this subsection in accordance with the requirements in §334.10(b) of this title (relating to Reporting and Recordkeeping).(2) Owners and operators shall maintain records adequate to demonstrate compliance with the release detection requirements in this section, and in accordance with the following minimum requirements.(A) All appropriate installation records related to the release detection system, as listed in §334.46(i) of this title, shall be maintained for as long as the release detection system is used.(B) All written performance claims pertaining to any release detection system used, and documentation of the manner in which such claims have been justified, verified, or tested by the equipment manufacturer, methodology provider/vendor, or independent third-party evaluator shall be maintained for as long as the release detection system is used.(C) Records of the results of all manual and/or automatic methods of sampling, testing, or monitoring for releases (including tank tightness tests) shall be maintained for at least five years after the sampling, testing, or monitoring is conducted.(D) Records and calculations related to inventory control reconciliation shall be maintained for at least five years from the date of reconciliation.(E) Written documentation of all service, calibration, maintenance, and repair of release detection equipment permanently located on-site shall be maintained for at least five years after the work is completed. Any schedules of required calibration and maintenance provided by the release detection equipment manufacturer shall be retained for as long as the release detection system is used.(F) Records of site assessments required under subsection (d)(5) and (6) of this section (concerning vapor monitoring and groundwater monitoring) must be maintained for as long as the methods are used. Records of site assessments must be signed by a professional engineer or professional geologist, or equivalent licensed professional with experience in environmental engineering, hydrogeology, or another relevant technical discipline acceptable to the agency.</content><note type="source"><p>Source Note: The provisions of this §334.50 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective November 18, 2004, 29 TexReg 10532; amended to be effective October 30, 2008, 33 TexReg 8790; amended to be effective March 17, 2011, 36 TexReg 1675; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.51"><num value="334.51">§334.51</num><heading>Spill and Overfill Prevention and Control</heading><content>(a) General spill and overfill control requirements.(1) Owners and operators of all new and existing underground storage tank (UST) systems shall ensure that releases of regulated substances due to spills and overfills do not occur.(2) Prior to regulated substances being transferred and deposited into a UST system, the owner or operator shall ensure that the available volume in the tank is greater than the volume of regulated substances to be transferred into the tank.(3) During the entire time that regulated substances are being transferred into a UST system, the owner or operator shall ensure that the entire transfer operation is continuously monitored by the person conducting the transfer. Except as provided in paragraph (4) of this subsection, such monitoring may be accomplished by either of the following methods.(A) The person conducting the transfer shall be physically present at or near the transfer point at all times during the transfer operation, and shall have an unobstructed view of the transfer point to observe the transfer and to abate any spill or overfill.(B) The person conducting the transfer shall be physically present at the facility at all times during the transfer operation, and shall monitor the transfer operation using a central monitoring station which is electronically connected to remote sensing equipment at each transfer point, where such equipment is designed to detect and prevent any spills or overfills.(4) When USTs are equipped with ball float valves in the vent openings (or with other similar flow restrictors) for the purposes of compliance with the overfill prevention equipment requirements of subsection (b)(2)(C) of this section, and when regulated substances are transferred into such tanks under pressure (other than routine gravity unloading from normal transport vehicles), the following requirements shall be met during the time that regulated substances are being transferred into the tank.(A) The person conducting the transfer shall be physically present at or near the transfer point at all times during the transfer operation, and shall have an unobstructed view of the transfer point to observe the transfer and to abate any spill or overfill.(B) The transfer hose connection shall be equipped with an appropriate back-pressure sensor that will automatically shut off flow into the tank when the pressure in the tank reaches the tank's allowable design pressure (typically five per square inch gauge).(5) The owners or operators shall assure that the installation and maintenance of all required spill and overfill prevention equipment, as well as the procedures used for the transfers of regulated substances to or from a UST system, are in accordance with codes or standards of practice developed by a nationally recognized association or independent testing laboratory such as:(A) National Fire Protection Association (NFPA) Standard 385, "Standard for Tank Vehicles for Flammable and Combustible Liquids." The transfer procedures described in NFPA Standard 385 or American Petroleum Institute (API) Recommended Practice 1007, "Loading and Unloading of MC 306/DOT 406 Cargo Tank Motor Vehicles" may be used to comply with this subsection.(B) API Recommended Practice 1007, "Loading and Unloading of MC 306/DOT 406 Cargo Tank Motor Vehicles," which also may be used to comply with paragraphs (2) and (3) of this subsection; or(C) API Recommended Practice 1621, "Bulk Liquid Stock Control at Retail Outlets," with further guidance on spill and overfill prevention.(6) The owner or operator shall assure that all spill and overfill prevention devices installed pursuant to subsection (b) of this section are maintained in good operating condition, and that such devices are inspected and serviced in accordance with the manufacturer's specifications. In addition, the devices shall be monitored or tested in accordance with the requirements in §334.48(g) and (h) of this title (relating to General Operating and Management Requirements).(7) In the event a release of regulated substance(s) occurs due to a spill or overfill, the owner or operator shall comply with the release reporting, investigation, and corrective action requirements in Subchapter D of this chapter (relating to Release Reporting and Corrective Action).(b) Spill and overfill prevention equipment. Except as provided in paragraph (4) of this subsection, all UST systems shall be equipped with spill and overfill prevention equipment which shall be designed, installed, and maintained in a manner that will prevent any spilling or overfilling of regulated substances resulting from transfers to such systems, as provided in this subsection.(1) Compliance schedule. All UST systems shall be in compliance with the equipment provisions of this subsection from the time of installation through the entire operational life of the system.(2) Equipment required. UST systems shall be equipped with each of the following spill and overfill prevention equipment or devices.(A) Tight-fill fitting. The fill pipe of the tank shall be equipped with a tight-fill fitting, adapter, or similar device which shall provide a liquid-tight seal during the transfer of regulated substances into the tank.(B) Spill containment equipment. The fill tube of the tank either shall be equipped with an attached spill container or catchment basin, or shall be enclosed in a liquid-tight manway, riser, or sump, and such equipment shall meet the following requirements.(i) The spill containment device shall be designed to prevent the release of regulated substances to the environment when the transfer hose or line is detached from the fill pipe.(ii) The spill containment device shall be equipped with a liquid-tight lid or cover designed to minimize the entrance of any surface water, groundwater, or other foreign substances into the container.(C) Overfill prevention equipment. Each tank shall be equipped with a valve or other appropriate device that shall be designed to either:(i) automatically shut off the flow of regulated substances into the tank when the liquid level in the tank reaches a preset level which shall be no higher than the 95% capacity level for the tank;(ii) automatically restrict the flow of regulated substances into the tank when the liquid level in the tank reaches a preset level which shall be no higher than the 90% capacity level for the tank, provided that such flow restricting device shall also alert the person responsible for the delivery when such preset level is reached. Flow restrictor devices may not be used when overflow prevention is installed or replaced on or after September 1, 2018; or(iii) emit an audible and visible alarm capable of alerting the person responsible for the delivery when the liquid level in the tank reaches a preset level which shall be no higher than the 90% capacity level for the tank, provided that the tank is also equipped with a valve or other device which is designed to automatically shut off or automatically restrict the flow of regulated substances into the tank when the liquid level reaches a preset level which shall be no higher than the 98% capacity level for the tank.(3) Design and installation requirements.(A) All spill and overfill prevention equipment shall be installed in accordance with the manufacturer's instructions and a code or standard of practice developed by a nationally recognized association or independent testing laboratory.(B) All underground components of the spill and overfill prevention equipment which are designed to contain regulated substances shall be properly protected from corrosion in accordance with the applicable provisions in §334.49 of this title (relating to Corrosion Protection).(C) The surfaces of all spill and overfill prevention equipment which are in direct contact with regulated substances shall be constructed of or lined with materials that are compatible with such regulated substances.(D) When installing the overfill prevention equipment specified in paragraph (2)(C) of this subsection, appropriate extension devices shall be utilized as necessary to assure that the shut-off or restriction of flow into the tank is achieved at the specified preset levels, which shall be based on the manufacturer's capacity charts for the size, dimensions, and shape of the tank.(4) Exceptions. UST systems are not required to be equipped with the spill and overfill prevention equipment prescribed in this subsection if one or more of the following conditions are applicable to such system:(A) the transfers of regulated substances into the UST system do not exceed 25 gallons per occurrence; or(B) the UST system is equipped with alternative equipment which has been reviewed and determined by the agency to prevent spills and overfills of regulated substances in a manner that is no less protective of human health and the environment than the equipment prescribed in this subsection, pursuant to procedures for variances found in §334.43 of this title (relating to Variances and Alternative Procedures).(c) Spill and overfill control records.(1) Owners and operators shall maintain the spill and overfill control records required in this subsection in accordance with the requirements in §334.10(b) of this title (relating to Reporting and Recordkeeping).(2) Owners and operators shall maintain records adequate to demonstrate compliance with the spill and overfill prevention and control requirements in this section, and in accordance with the following minimum requirements.(A) All appropriate installation records related to the installation of any spill and overfill prevention equipment, as listed in §334.46(i) of this title (relating to Installation Standards for New Underground Storage Tank Systems), shall be maintained for as long as the spill and overfill prevention equipment is used.(B) Records of any servicing, calibration, maintenance, inspection, monitoring, testing, and repair of any spill and overfill prevention equipment shall be maintained for at least five years after such work is completed.(3) If an owner or operator claims an exemption from the spill and overfill equipment requirements under the provisions of subsection (b)(4) of this section (i.e., transfers of 25 gallons or less), such owner or operator shall maintain appropriate transfer or inventory records for at least five years to document the basis for such exemption.</content><note type="source"><p>Source Note: The provisions of this §334.51 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective June 25, 1990, 15 TexReg 3424; amended to be effective January 2, 1995, 19 TexReg 10104; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.52"><num value="334.52">§334.52</num><heading>Underground Storage Tank System Repairs and Relining</heading><content>(a) General requirements.(1) Owners and operators shall ensure that any repair or relining of an underground storage tank (UST) system will prevent releases due to structural failure or corrosion for the remaining operational life of the system.(2) Owners and operators shall ensure that any repair or relining is conducted by qualified personnel possessing the appropriate skills, experience, competence, and, if applicable, any required license or certification to complete the work in accordance with the provisions of this subsection.(3) Any repairs or relining shall be properly conducted in accordance with a standard or code of practice developed by a nationally recognized association or independent testing laboratory, such as:(A) National Fire Protection Association (NFPA) Standard 30, "Flammable and Combustible Liquids Code;" (B) American Petroleum Institute (API) Recommended Practice RP 2200, "Repairing Hazardous Liquid Pipelines;"(C) API Recommended Practice RP 1631, "Interior Lining and Periodic Inspection of Underground Storage Tanks;" (D) NFPA 326, "Standard for the Safeguarding of Tanks and Containers for Entry, Cleaning, or Repair;" (E) National Leak Prevention Association Standard 631, Chapter A, "Entry, Cleaning, Interior Inspection, Repair, and Lining of Underground Storage Tanks;" (F) Steel Tank Institute Recommended Practice R972, "Recommended Practice for the Addition of Supplemental Anodes to sti-P3 Tanks;" (G) NACE International Standard Practice SP 0285, "Corrosion Control of Underground Storage Tank Systems by Cathodic Protection;" or(H) Fiberglass Tank and Pipe Institute Recommended Practice T-95-02, "Remanufacturing of Fiberglass Reinforced Plastic (FRP) Underground Storage Tanks."(4) After completion of any repairs or relining of a UST system, the owner or operator shall obtain detailed written records of the repairs or relining from the person who performed the work.(5) The requirements of this section shall not be applicable to routine and minor maintenance activities related to the tank and piping systems, such as tightening loose fittings and joints, adjusting and calibrating equipment, and conducting routine inspections and tests. Tank and piping systems may be placed back into operation immediately after the satisfactory completion of such minor maintenance activities.(6) If any release of regulated substances is discovered or suspected during the UST system repair or relining activity, the owner or operator shall comply with the applicable release reporting, investigation, and corrective action requirements in Subchapter D of this chapter (relating to Release Reporting and Corrective Action).(7) The performance of any repairs or relining of an existing UST shall not relieve the owner or operator from timely compliance with the technical standards for such tanks, as required in §334.47 of this title (relating to Technical Standards for Existing Underground Storage Tank Systems).(b) Tank repairs and relining.(1) The provisions of this subsection shall be applicable to the in-place repairs or relining of existing tanks. Tanks that are removed from the ground prior to repair or relining shall be considered used tanks and shall be brought into compliance with all provisions of §334.53 of this title (relating to Reuse of Used Tanks) prior to being placed back in operation.(2) A previously used tank may be repaired or relined and placed back in operation, provided that the repair or relining is conducted in accordance with the provisions of this subsection and in a manner that will prevent releases of regulated substances due to structural failure or corrosion for the remaining operational life of the tank.(3) Repairs or relining of fiberglass-reinforced plastic tanks shall be made only by either:(A) an authorized representative of the tank manufacturer; or(B) any other person possessing the requisite experience and qualifications to perform the repairs, provided that such repairs shall be performed in accordance with a standard or code of practice developed by a nationally recognized association or independent testing laboratory.(4) Additional requirements for relining.(A) Interior lining material(s) used in the repair or reconditioning of a UST shall be compatible with the stored regulated substance, and shall be applied to a minimum thickness of 100 mils.(B) The entire lining process, including the tank preparation, lining application, inspection, and testing shall be in accordance with a standard or code of practice developed by a nationally recognized association or independent testing laboratory, such as:(i) API Recommended Practice 1631, "Interior Lining and Periodic Inspection of Underground Storage Tanks;"(ii) National Leak Prevention Association Standard 631, Chapter B "Future Internal Inspection Requirements for Lined Tanks;" or(iii) Ken Wilcox Associates Recommended Practice, "Recommended Practice for Inspecting Buried Lined Steel Tanks Using a Video Camera." (C) Within 10 years after lining, and every five years thereafter, the lined tank shall be internally inspected and determined to be structurally sound with the lining still performing in accordance with original design specifications. If the internal lining is no longer performing in accordance with original design specifications and cannot be repaired in accordance with a code of practice developed by a nationally recognized association or independent testing laboratory, then the lined tank must be permanently removed from service in accordance with §334.55 of this title (relating to Permanent Removal from Service).(5) Prior to placing the tank back into operation, any repaired or relined tank shall be either:(A) tested by means of a tank tightness test meeting the requirements in §334.50(d)(1)(A) of this title (relating to Release Detection);(B) internally inspected and assessed in accordance with the requirements in §334.47(b)(1)(A)(iv) of this title; or(C) tested or assessed by any other method that has been reviewed and determined by the agency to be no less protective of human health and safety and the environment than the standards described in subparagraphs (A) and (B) of this paragraph, in accordance with the procedures in §334.43 of this title (relating to Variances and Alternative Procedures).(6) Not later than December 22, 1998, the entire UST system shall be equipped with a cathodic protection system. Such system shall be designed by a qualified corrosion specialist and shall be operated and maintained in accordance with the applicable cathodic protection requirements of §334.49(c) of this title (relating to Corrosion Protection). (c) Piping repairs and maintenance.(1) When a release of a regulated substance has occurred as a result of holes, damage, or corrosion in the piping, valves, or fittings, the repair of the affected piping, valves, or fittings shall not be allowed. Any damaged, corroded, or defective piping sections, valves, or fittings shall be replaced with materials or components meeting the applicable requirements for new piping systems in §334.45(c) of this title (relating to Technical Standards for New Underground Storage Tank Systems).(2) The installation or reinstallation of previously used piping, valves, or fittings in any UST system is specifically prohibited, regardless of the source or previous use of such previously used components.(3) Prior to placing the piping system back into operation, any repaired piping system shall be tested by means of a piping tightness test meeting the requirements of §334.50(b)(2)(A)(ii)(I) of this title.(4) If a repaired metal piping system has not already been equipped with an acceptable cathodic protection system, then the following minimum requirements shall be met prior to placing the piping system back in operation.(A) The repaired piping sections and fittings shall be thoroughly coated with a suitable dielectric coating and shall be electrically isolated from the remaining piping system by dielectric fittings.(B) The repaired piping sections and fittings shall be retrofitted with a field-installed cathodic protection system. Such cathodic protection system shall be designed by a qualified corrosion specialist and shall be operated and maintained in accordance with the applicable cathodic protection requirements in §334.49(c) of this title. The remaining portion of the piping system shall be brought into compliance with the minimum upgrading requirements for existing UST systems in accordance with the procedures and schedules in §334.47 of this title.(d) Other tank system repairs and ancillary equipment repairs. (1) Repairs to secondary containment areas of tanks and piping used for interstitial monitoring and to containment sumps used for interstitial monitoring of piping must have the secondary containment tested for tightness according to the manufacturer's instructions, a code of practice developed by a nationally recognized association, or independent testing laboratory within 30 days following the date of completion of the repair. All other repairs to tanks and piping must be tightness tested in accordance with §334.50(b)(2)(A)(ii)(I) and (d)(1)(A) of this title within 30 days following the date of completion of the repair. (2) Within 30 days following any repair to spill or overfill prevention equipment, the repaired spill or overfill prevention equipment must be tested or inspected, as appropriate, in accordance with §334.48(g) of this title (relating to General Operating and Management Requirements) to ensure it is operating properly. (e) Records for repairs and relining.(1) Owners and operators shall maintain the repair and relining records required in this subsection in accordance with the requirements in §334.10(b) of this title (relating to Reporting and Recordkeeping).(2) Owners and operators shall maintain records adequate to demonstrate compliance with the applicable repairs and relining requirements in this section, and in accordance with the following minimum requirements.(A) General information related to the repairs or relining shall be maintained for the remaining operational life of the UST system, including:(i) date and description of the repairs or relining;(ii) names, addresses, and telephone numbers of the persons who conducted the repairs or relining; and(iii) copies of all related construction notification, registration, and certification documents filed with the agency.(B) Results of all inspections, tests, and maintenance activities required in this section shall be maintained for at least five years.(C) Materials specifications, warranty information, recommended test procedures, and inspection and maintenance schedules applicable to the relining of any tank shall be maintained for the remaining operational life of the UST system.</content><note type="source"><p>Source Note: The provisions of this §334.52 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.53"><num value="334.53">§334.53</num><heading>Reuse of Used Tanks</heading><content>(a) General requirements.(1) A used tank may be installed or reinstalled and may be returned to service in accordance with the provisions of this section, provided that the tank is designed and constructed in a manner that will prevent releases of regulated substances due to structural failure or corrosion for the remaining operational life of the tank.(2) Any required repairs or relining of a used tank shall be in accordance with the provisions of §334.52 of this title (relating to UST System Repairs and Relining).(3) The tank material, and any interior or exterior lining material, shall be compatible with the stored regulated substance.(4) The installation or reinstallation of a used tank shall be in accordance with all requirements applicable to a tank installation in a new UST system, as provided in the following subparagraphs.(A) The installation shall be conducted in accordance with the applicable provisions of §334.46 of this title (relating to Installation Standards for New UST Systems).(B) The tank shall be equipped with appropriate spill and overfill prevention equipment, in accordance with §334.51 of this title (relating to Spill and Overfill Prevention and Control).(C) A used steel tank (including steel tanks with an exterior fiberglass-reinforced plastic cladding or laminate) shall be equipped with a factory-installed or field-installed cathodic protection system in accordance with §334.49(c) of this title (relating to Corrosion Protection).(D) The tank shall be equipped with appropriate release detection equipment in accordance with §334.50 of this title (relating to Release Detection).(E) The tank shall also be equipped with other tank components which shall be constructed in accordance with §334.45(b)(4) of this title (relating to Technical Standards for New UST Systems).(b) Exterior fiberglass-reinforced plastic coatings. The retrofitting of a used steel tank with an exterior coating, cladding, or laminate consisting of fiberglass-reinforced plastic shall be conducted in accordance with a code of practice or standard developed by a nationally recognized association or independent testing laboratory and, at a minimum, shall meet the following additional conditions.(1) The steel tank shall be sandblasted or otherwise cleaned to bare white metal, and all residual corrosion, oxidation, and coating materials shall be thoroughly removed.(2) The cleaned tank shall be protected from further corrosion or other damage during the period between the tank cleaning and the application of the exterior coating.(3) The bonding materials used to bond the fiberglass materials to the tank wall shall be compatible with the stored substance and shall be designed to remain bonded for the operational life of the tank. The fiberglass-reinforced plastic coating shall be applied to a minimum thickness of 100 mils, and shall be thoroughly tested by appropriate means to confirm compliance with such thickness requirements.(4) The tank shall be retrofitted with a cathodic protection system in accordance with the provisions of §334.49(c) of this title (relating to Corrosion Protection).(c) Recordkeeping. Detailed records of the used tank installation shall be maintained in accordance with §334.10 of this title (relating to Reporting and Recordkeeping). Such records shall include the date the used tank was placed in service; the name, address, and telephone number of the persons who installed and tested the tank; and the results of all inspection and tank tightness tests required by this section. Such records shall be maintained for as long as the tank remains in operation.</content><note type="source"><p>Source Note: The provisions of this §334.53 adopted to be effective September 29, 1989, 14 TexReg 4714.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.54"><num value="334.54">§334.54</num><heading>Temporary Removal from Service</heading><content>(a) Applicability. An underground storage tank (UST) system shall be considered to be temporarily out of service, regardless of whether or not regulated substances remain in the UST system, when the following conditions apply.(1) The normal operation and use of the UST system is deliberately, but temporarily, discontinued for any reason.(2) The infrequent use of the UST system cannot be adequately justified as part of its purpose.(3) The operation, maintenance, and/or release detection procedures are determined to be inadequate or otherwise inconsistent with the monitoring procedures normally associated with in-service systems of similar type and purpose.(b) All UST systems. Regardless of whether or not regulated substances remain in the UST system, the owner or operator shall assure that the UST system is maintained in compliance with the following requirements for the balance of time that the UST system remains temporarily out of service.(1) All vent lines shall be kept open and functioning.(2) All other piping, pumps, manways, tank access points (e.g., fill risers, automatic tank gauging risers, Stage I vapor recovery risers) and ancillary equipment shall be capped, plugged, locked, and/or otherwise secured to prevent access, tampering, or vandalism by unauthorized persons.(3) The UST system shall be adequately protected from corrosion in accordance with the applicable requirements of §334.49 of this title (relating to Corrosion Protection).(4) Testing and inspections. Spill and overfill operation and maintenance testing and walkthrough inspections (as listed in §334.48(g) and (h) of this title (relating to General Operating and Management Requirements)) are not required on temporarily out of service UST systems.(c) Protected and monitored systems. Any UST system may remain out of service indefinitely so long as the following requirements are met during the period that the UST system remains temporarily out of service.(1) Unless the UST system has been emptied of all regulated substances (as described under subsection (d) of this section) at the time it is temporarily removed from service, the UST system shall be monitored for releases in accordance with the applicable requirements of §334.50 of this title (relating to Release Detection).(2) Returning UST system to service.(A) When a protected and empty UST system that has been temporarily out of service for longer than six months is placed back into service, the owner or operator shall ensure the integrity of the system by the performance of tank tightness and piping tightness tests that meet the requirements of §334.50(d)(1)(A) of this title, and as applicable, §334.50(b)(2)(A)(ii)(I) or (B)(i)(I) of this title, prior to bringing the system back into operation;(B) When either a protected and monitored or a protected and empty UST system is placed back into service, the owner or operator shall also ensure that the UST system either is in compliance or is brought into compliance with all applicable release detection, and spill and overfill prevention requirements of §334.50 of this title and §334.51 of this title (relating to Spill and Overfill Prevention and Control); and(C) Before any UST system is returned to service under this subsection, the owner or operator must first submit a construction notification form as specified in §334.6(b) of this title (relating to Construction Notification for Underground Storage Tanks (USTs) and UST Systems).(d) Empty system.(1) For the purposes of this section only, and specifically for the purpose of exempting certain UST systems (when temporarily out of service) the following requirements shall not apply as long as a UST system is empty:(A) release detection (as listed in §334.50 of this title); and(B) release detection operation and maintenance testing and inspections (as listed in §334.48(e)(1) of this title).(2) A UST system shall be considered empty when all of the following provisions have been met:(A) all regulated substances have been removed as completely as possible by the use of commonly-employed and accepted industry procedures;(B) any residue from stored regulated substances which remains in the system (after the completion of the substance removal procedures under subparagraph (A) of this paragraph) shall not exceed a depth of 2.5 centimeters at the deepest point and shall not exceed 0.3% by weight of the system at full capacity; and(C) the volume or concentration of regulated substances remaining in the system would not pose an unreasonable risk to human health and safety or to the environment if a release occurs during the period when the system is temporarily out of service.(e) Other requirements.(1) Releases. If a release of a regulated substance is suspected or confirmed, the owner or operator of a UST system which is temporarily out of service shall comply with all release reporting, investigation, and corrective action requirements in Subchapter D of this chapter (relating to Release Reporting and Corrective Action).(2) Registration. At the time a UST system is temporarily taken out of service and at the time a UST system is brought back into service, the owner shall comply with the applicable tank registration requirements in §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems).(3) Fees. A UST which is temporarily out of service in accordance with this section shall remain subject to the agency's UST fees in Subchapter B of this chapter (relating to Underground Storage Tank Fees).(4) Recordkeeping for temporary removal from service.(A) Owners and operators shall maintain records adequate to demonstrate compliance with the requirements in this section, in accordance with §334.10(b) of this title (relating to Reporting and Recordkeeping).(B) At a minimum, the following records shall be maintained for at least five years after the UST system is temporarily removed from service:(i) date that the UST system was temporarily removed from service;(ii) name, address, and telephone number of the person who prepared the UST system for the period of non-use;(iii) documentation of the procedures used to prepare and empty the UST system;(iv) copies of all documentation relative to any requests and approvals of extensions of time;(v) name, address, and telephone number of the person who conducted the tank and piping tightness tests, prior to returning the UST system to service;(vi) results of any tank and piping tightness tests; and(vii) date that the UST system was returned to service.(5) Financial assurance requirements for tanks temporarily removed from service. Note that §37.885 of this title (relating to Release from the Requirements) addresses release from financial assurance requirements. To be considered properly temporarily removed from service for release from financial assurance requirements in §37.885 of this title, owners and operators shall:(A) empty the UST system in accordance with subsection (d) of this section; and(B) perform a site check and any necessary corrective actions in accordance with the requirements of §334.74 of this title (relating to Release Investigation and Confirmation Steps).</content><note type="source"><p>Source Note: The provisions of this §334.54 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective July 12, 2001, 26 TexReg 5031; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective October 30, 2008, 33 TexReg 8790; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.55"><num value="334.55">§334.55</num><heading>Permanent Removal from Service</heading><content>(a) General provisions.(1) Any owner or operator who intends to permanently remove an underground storage tank (UST) from service (by either removing the tank from the ground, abandoning the tank in-place, or conducting a permanent change-in-service) shall provide prior notice of this activity to the agency in accordance with §334.6 of this title (relating to Construction Notification for Underground Storage Tanks (USTs) and UST Systems).(2) The procedures used in permanently removing the UST from service shall conform with accepted industry practices, and shall be in accordance with a code or standard of practice developed by a nationally recognized association or independent testing laboratory.(3) The permanent removal from service shall be conducted by qualified personnel possessing the appropriate skills, experience, competence, and, if applicable, any required license or certification to complete the activity in accordance with the provisions of this section and in a manner designed to minimize the possibility of any threats to human health and safety or the environment.(4) All USTs that are intended for permanent removal from service shall be emptied of all regulated substances and accumulated sludges or residues, and shall be purged of all residual vapors in accordance with accepted industry procedures commonly employed for the stored regulated substance.(5) The handling, transportation, and disposal of any regulated substances removed from a UST system, and any contaminated soils, backfill material, groundwater, wash water, or other similar materials removed from the system or facility, shall be conducted in a safe and environmentally sound manner, and shall be in accordance with all applicable federal, state, and local regulations in effect for the type, volume, contaminant concentration, and classification of the removed material.(6) As part of the required procedure for the permanent removal of any UST system from service, the owner or operator shall determine whether or not any prior release of a stored regulated substance has occurred from the system.(A) This determination shall be performed subsequent to the submittal of notification to the agency as prescribed in §334.6 of this title, but prior to completion of the permanent removal from service.(B) This determination shall be made by visual inspection of the area in and immediately surrounding the excavation zone for any above-ground releases and for any exposed below-ground releases, and by using one or both of the following methods or procedures:(i) the continual operation (through the time that the stored regulated substances are removed from the UST system) of one or more of the external release monitoring and detection methods operating in accordance with §334.50(d)(5) - (8) of this title (relating to Release Detection); or(ii) the performance of a comprehensive site assessment in accordance with the requirements of subsection (e) of this section.(C) Any methods or procedures used to make this determination shall be capable of detecting any prior release of stored regulated substances from any portion of the UST system.(D) Upon completion of this determination, the owner or operator shall:(i) report any confirmed or suspected releases to the agency and comply with all applicable release investigation and corrective action requirements, as prescribed in Subchapter D of this chapter (relating to Release Reporting and Corrective Action);(ii) prepare or assemble the detailed written records of this determination, which shall include the methods, procedures, results, and names, addresses, and telephone numbers of the persons involved in conducting such determination. Such records shall be maintained in accordance with the applicable provisions in subsection (f) of this section, and a copy of such records shall be filed with the agency in conjunction with the applicable tank registration requirements of §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems).(7) For a UST to be considered permanently out-of-service, the owner or operator shall either remove the tank from the ground in accordance with subsection (b) of this section, abandon in-place and fill the tank with an acceptable solid inert material in accordance with subsection (c) of this section, or conduct a permanent change-in-service in accordance with subsection (d) of this section. Unused tanks (i.e., tanks at facilities which are closed or out-of-business) shall be considered temporarily out-of-service, and shall be subject to the provisions of §334.54 of this title (relating to Temporary Removal from Service), unless they have been permanently removed from service in accordance with this section.(8) The requirements in this section are applicable to all USTs which are permanently removed from service on or after September 29, 1989.(9) When directed by the executive director, the owner and operator of a UST system permanently closed before September 29, 1989, must assess the excavation zone and close the UST system in accordance with this subchapter if releases from the UST may, in the judgment of the executive director, pose a current or potential threat to human health and the environment.(b) Removal from the ground. In addition to the requirements of subsection (a) of this section, the following requirements shall be applicable for the removal of USTs from the ground.(1) Except as provided under paragraph (2) of this subsection, tanks shall be properly emptied, cleaned, and purged of vapors prior to removal from the ground, in accordance with accepted industry procedures commonly employed for the stored regulated substance.(2) When an owner or operator can demonstrate good cause for removal of a tank from the ground prior to emptying, cleaning, or purging the vapors, the owner or operator shall obtain approval from the manager of the appropriate regional office (or the manager's designated representative) prior to proceeding with the removal. In this situation, the tank removal shall be accomplished only under the direct supervision of agency personnel and/or local fire officials, and all conditions and requirements imposed by such supervisory officials shall be strictly followed.(3) Prior to removing the tank from the ground, all connected piping and other ancillary equipment shall be emptied, disconnected, and properly plugged, capped, or removed.(4) Storage of removed tanks.(A) After removal, a tank shall be transported from the site within 24 hours of removal, unless prior approval of a longer on-site storage period is obtained from the manager of the appropriate regional office (or the manager's designated representative).(B) The on-site storage of tanks for a period of 24 hours or less shall be in a designated temporary storage area which shall be an adequate distance from known ignition sources and which shall be clearly identified with appropriate barriers and warning signs to restrict access by unauthorized persons.(C) On-site storage of removed tanks for more than 24 hours (when approved by the regional manager), and off-site storage for any period, shall only be allowed in locked, securely fenced, or similarly restricted areas where unauthorized persons will not have access.(D) No later than 24 hours after removal, all removed tanks (regardless of condition) shall be legibly and permanently labeled (in letters at least two inches high) with the name of the former contents, a flammability warning (if applicable), and a warning that the tank is unsuitable for the storage of drinking water or the storage of human or animal food products.(E) The residual vapor levels in any removed tank which is stored at the UST facility shall be maintained at nonexplosive and nonignitable levels for the entire time that the tank remains at the facility.(F) Regardless of where the tank is stored, not later than ten days after the tank has been removed from the ground, any residual liquids or vapors shall be permanently removed to render the tank nonignitable and nonexplosive.(5) Transportation and disposal of removed tanks.(A) The methods and procedures used for the handling, transporting, and disposing of any removed USTs (and parts of such tanks) shall be protective of human health and safety and the environment, and shall be in accordance with all applicable federal, state, and local regulations.(B) Removed tanks (and any parts of such tanks) which have been emptied, thoroughly cleaned of all remaining substances and any remaining residues, and permanently purged of vapors may be appropriately disposed by scrapping, junking, or reusing for purposes unrelated to the underground storage of regulated substances.(C) Prior to transporting any removed tank from the UST facility, the following minimum preparation procedures shall be followed.(i) The remaining regulated substances shall be removed, and visible residues or sediments shall be cleaned from the tank as completely as possible, in accordance with commonly used and accepted industry practices.(ii) Residual vapor levels in the tank shall be reduced to nonexplosive and nonignitable levels, and shall be maintained at such levels during the entire period of transportation.(iii) All holes and openings shall be properly plugged or capped, except for one 1/8-inch diameter vent hole positioned at the top of the tank during transportation.(D) The subsequent reuse of any removed tanks for the underground storage of regulated substances (whether on-site or off-site) shall only be allowed under the provisions of §334.53 of this title (relating to Reuse of Used Tanks).(6) The tank owner shall develop and maintain a permanent record of the prior location of the removed tank; the date of removal; the substance previously stored; the method of conditioning the tank for removal; the methods of handling, transportation, storing, and disposing of the tank; the names, addresses, and telephone numbers of the person conducting the activities; and any information regarding any known releases from such tank. If the facility owner is not the same person as the tank owner, the tank owner shall provide a copy of such information to the site or facility owner within 30 days after the date of removal.(c) Abandonment in-place. A UST may be permanently removed from service by abandonment in-place in lieu of actual removal from the ground. In addition to the requirements of subsection (a) of this section, the following requirements shall be applicable to the abandonment in-place of USTs.(1) When the UST owner is not the owner of the site or facility where such tank is located, the tank owner is prohibited from abandoning such tank in-place unless the following conditions are met.(A) The tank owner shall provide written notice to the owner of the site or facility for the abandonment in-place prior to initiating the activity.(B) After completion of the abandonment in-place, the tank owner shall provide to the site or facility owner a legible copy of the permanent record of the abandonment, as described in paragraph (3) of this subsection.(2) Any tank that is abandoned in-place shall be filled with a solid inert material as prescribed in this paragraph.(A) Only solid inert materials which are free of any harmful contaminants or pollutants shall be used to fill the tank. Acceptable materials include sand, fine gravel, sand and gravel mixtures, and cement/concrete-based slurries. Other materials such as native soils, drilling muds, and commercially marketed fill materials shall not be used for filling the tank unless the material and filling procedures have been reviewed and approved by the agency in accordance with §334.43 of this title (relating to Variances and Alternative Procedures).(B) Adequate access openings shall be made in the top of the tank, and the tank shall be filled as completely as possible. Voids and air pockets shall be eliminated.(C) The fill material and filling procedures shall be adequate to assure that:(i) the filled tank will not surface after completion of the filling operation;(ii) any settling or instability of the ground surface subsequent to the abandonment in-place is minimized or eliminated;(iii) the fill materials will form a permanent solid inert filler that can be expected to remain structurally stable in the ground to prevent cave-ins, even after the subsequent deterioration of the tank walls; and(iv) the filled tank and associated piping are disconnected and capped or sealed so as to preclude their future use for any storage or disposal purposes.(3) The tank owner shall develop and maintain a permanent record of the name and address of the tank owner (and site or facility owner, if different); the abandoned tank location; the date of abandonment; the substance previously stored; the method of conditioning the tank for abandonment; release assessment results; the names, addresses, and telephone numbers of the persons conducting the activities; and information regarding the extent of any confirmed releases and any resulting remediation activities.(A) When the tank owner is not the owner of the facility where the tank is located, the tank owner shall provide to the current facility owner a legible copy of the permanent record of the abandonment in-place. Such information shall be provided no later than 30 days after completion of the abandonment in-place.(B) The facility owner shall maintain a permanent record of the tank abandonment in-place in accordance with subsection (f) of this section.(C) Prior to the sale or conveyance of the facility where an abandoned UST is located, the facility owner shall provide written documentation of the tank abandonment information to the succeeding property owner.(d) Change-in-service. In addition to the requirements of subsection (a) of this section, the following requirements shall be applicable for any change-in-service where a UST system storing regulated substances is converted to a system storing materials other than regulated substances.(1) Prior to refilling with materials other than regulated substances, the UST shall be properly emptied, cleaned, and purged of vapors in accordance with a code or standard of practice developed by a nationally recognized association or independent testing laboratory for the stored regulated substance. The procedures for emptying, cleaning, and purging the UST shall be designed to remove as much as possible of the previously stored regulated substances, including all liquids, vapors, sludges, and residues, in a manner that is protective of human health and safety or the environment.(2) A change-in-service where a UST storing regulated substances is to be converted for the storage of either drinking water or food products intended for human consumption is specifically prohibited.(3) Any change-in-service shall be in accordance with all applicable federal, state, and local regulations.(4) The owner shall develop and maintain a permanent record of the location of the UST; the date of the change-in-service; the regulated substance previously stored; the method of conditioning the tank for the change-in-service; the names, addresses, and telephone numbers of the persons conducting the activities; and any information regarding any known releases of regulated substances from such tank. If the facility owner is not the same person as the UST owner, the UST owner shall provide a copy of such information to the facility owner within 30 days after the date of the change-in-service.(5) For the purposes of this section, a UST which has been converted to the storage of materials other than regulated substances (i.e., water) shall be subject to the procedures for temporary removal from service in §334.54 of this title, except when the stored materials are utilized on a regular basis for beneficial purposes.(e) Site assessment.(1) A site assessment meeting the requirements of this subsection shall be performed by the owner or operator of a UST system in the following situations to determine whether or not a release has occurred:(A) when the site assessment is selected as the method to achieve compliance with the release determination requirements of subsection (a)(6) of this section for a UST which is permanently removed from service on or after September 29, 1989;(B) when the agency determines that a site assessment is necessary at any site or facility where a UST was permanently removed from service prior to September 29, 1989, and where the site assessment or release determination at the time of removal from service was determined to be either nonexistent or inadequate; or(C) when the agency determines that a site assessment is necessary at any site or facility where a release or suspected release may pose a current or potential threat to human health or safety or the environment.(2) The site assessment shall be conducted by qualified personnel possessing the appropriate skills, experience, and competence to perform the assessment in accordance with recognized industry practices and the provisions of this section and shall be supervised by a person who is currently licensed by the Texas Commission on Environmental Quality (TCEQ) as a UST installer or on-site supervisor or currently registered with the TCEQ as a corrective action project manager.(3) Any procedures used for the site assessment must be capable of measuring for the presence of a release from any part of the UST system and, at a minimum, must include measurements for releases at locations where contamination is most likely to be present at the site.(4) The owner or operator shall assure that in selecting the sampling or measurement methods, the sample types, and the sampling or measurement locations, the persons conducting the assessment shall take into consideration the following factors to ensure that the presence of any released regulated substances is detected and quantified:(A) the specific method of removing the UST system from service;(B) the nature and composition of the stored regulated substance;(C) the type and characteristics of the backfill material and surrounding soils;(D) the presence of groundwater, and its depth with relation to the UST system and the surface of the ground; and(E) any other factors that may affect the reliability or effectiveness of the site assessment procedures or techniques.(5) One or more of the following methods may be used for conducting the site assessment and release determination required under this section, provided that such methods are in compliance with the performance standards in paragraphs (2) - (4) of this subsection:(A) collection and analysis of soil samples secured from unsaturated sections of the UST system excavation zone and surrounding soils, where such samples shall be analyzed for major constituents and/or indicator parameters of the stored regulated substance(s);(B) collection and analysis of groundwater samples secured from the UST system excavation zone and surrounding area, where such samples shall be analyzed for all major constituents or indicator parameters of the stored regulated substance(s); and/or(C) any other site assessment or release determination method or procedure which has been reviewed and determined by the agency to detect prior releases of the stored regulated substance(s) in a manner that is no less protective of human health and the environment than the methods described in subparagraphs (A) and (B) of this paragraph, as provided under §334.43 of this title.(D) The owner or operator must report any suspected or confirmed releases indicated by the site assessment to the agency and comply with all applicable release investigation and corrective action requirements, as prescribed in Subchapter D of this chapter.(f) Records for permanent removal from service.(1) Owners and operators shall maintain records adequate to demonstrate compliance with the requirements of this section, in accordance with §334.10(b) of this title (relating to Reporting and Recordkeeping).(2) At a minimum, the following records shall be maintained for five years after the UST system is permanently removed from service:(A) records of the release determination or site assessment, in accordance with the requirements in subsection (a)(6)(D)(ii) of this section;(B) records related to the tank removal procedures (as applicable), in accordance with the requirements in subsection (b)(6) of this section;(C) records related to the abandonment in-place of a UST system (as applicable), in accordance with the requirements in subsection (c)(3) of this section; and(D) records related to the change-in-service of a UST system (as applicable), in accordance with the requirement in subsection (d)(4) of this section.(g) Codes of practice. The following cleaning and closure procedures may be used to comply with this section:(1) American Petroleum Institute (API) Recommended Practice 1604, "Closure of Underground Petroleum Storage Tanks;"(2) API Standard 2015, "Requirements for Safe Entry and Cleaning of Petroleum Storage Tanks;"(3) API Recommended Practice 2016, "Guidelines and Procedures for Entering and Cleaning Petroleum Storage Tanks;"(4) API Recommended Practice 1631, "Interior Lining and Periodic Inspection of Underground Storage Tanks;" and(5) National Fire Protection Association Standard 326, "Standard for the Safeguarding of Tanks and Containers for Entry, Cleaning, or Repair."</content><note type="source"><p>Source Note: The provisions of this §334.55 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective January 2, 1995, 19 TexReg 10104; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scC/s334.56"><num value="334.56">§334.56</num><heading>Change to Exempt or Excluded Status</heading><content>(a) Any owner or operator who intends to change the status of an underground storage tank (UST) system from regulated to exempt or excluded status must determine whether the tank(s) size (if applicable) and the current and anticipated use of the UST system will allow reclassification to either exempt status as specified in §334.3 of this title (relating to Exemptions for Underground Storage Tanks (USTs) and UST Systems), or to excluded status as specified in §334.4 of this title (relating to Exclusions for Underground Storage Tanks (USTs) and UST Systems).(b) As part of the required procedure for the change in status of any UST system from regulated to exempt or excluded status, the owner or operator shall determine whether or not any prior release of a stored regulated substance has occurred from the system.(1) This determination shall be made by visual inspection of the area in and immediately surrounding the excavation zone for any above-ground releases and for any exposed below-ground releases, and by using one or both of the following methods or procedures:(A) the continual operation (through the time that the stored regulated substances are removed from the UST system) of one or more of the external release monitoring and detection methods operated in accordance with §334.50(d)(5) - (8) of this title (relating to Release Detection); or(B) the performance of a comprehensive site assessment in accordance with the requirements of subsection (c) of this section.(2) Any methods or procedures used to make this determination shall be capable of detecting any prior release of stored regulated substances from any portion of the UST system. Upon completion of this determination, the owner or operator shall:(A) report any confirmed or suspected releases to the agency and comply with all applicable release investigation and corrective action requirements, as prescribed in Subchapter D of this chapter (relating to Release Reporting and Corrective Action);(B) prepare or assemble the detailed written records of this determination, which shall include the methods, procedures, results, names, addresses, and telephone numbers of the persons involved in conducting this determination. These records shall be maintained in accordance with the applicable provisions in subsection (d) of this section, and a copy of these records shall be filed with the agency in conjunction with the applicable tank registration requirements of §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems).(c) Site assessment.(1) A comprehensive site assessment meeting the requirements of this subsection shall be performed by the owner or operator of a UST system in the following situations to determine whether or not a release has occurred:(A) when the site assessment is selected as the method to achieve compliance with the release determination requirements of subsection (b) of this section for a UST which is changed from regulated to exempt or excluded status on or after the effective date of this subchapter;(B) when the agency determines that a comprehensive site assessment is necessary at any site or facility where a release or suspected release may pose a current or potential threat to human health or safety or the environment.(2) The site assessment shall be conducted by qualified personnel possessing the appropriate skills, experience, and competence to perform the assessment in accordance with recognized industry practices and the provisions of this section and shall be supervised by a person who is currently licensed by the Texas Commission on Environmental Quality (TCEQ) as a UST installer or on-site supervisor or currently registered with the TCEQ as a corrective action project manager.(3) Any procedures used for the site assessment must be capable of measuring for the presence of a release from any part of the UST system and, at a minimum, must include measurements for releases at locations where contamination is most likely to be present at the site.(4) The owner or operator shall assure that in selecting the sampling or measurement methods, the sample types, and the sampling or measurement locations, the persons conducting the assessment shall take into consideration the following factors to ensure that the presence of any released regulated substances is detected and quantified:(A) the nature and composition of the stored regulated substance;(B) the type and characteristics of the backfill material and surrounding soils;(C) the presence of groundwater, and its depth with relation to the UST system and the surface of the ground; and(D) any other factors that may affect the reliability or effectiveness of the site assessment procedures or techniques.(5) One or more of the following methods may be used for conducting the site assessment and release determination required under this section, provided that such methods are in compliance with the performance standards in paragraphs (2) - (4) of this subsection:(A) collection and analysis of soil samples secured from unsaturated sections of the UST system excavation zone and surrounding soils, where such samples shall be analyzed for major constituents and/or indicator parameters of the stored regulated substance(s);(B) collection and analysis of groundwater samples secured from the UST system excavation zone and surrounding area, where such samples shall be analyzed for all major constituents or indicator parameters of the stored regulated substance(s); and/or(C) any other site assessment or release determination method or procedure which has been reviewed and determined by the agency to detect prior releases of the stored regulated substance(s) in a manner that is no less protective of human health and the environment than the methods described in subparagraphs (A) and (B) of this paragraph, as provided under §334.43 of this title (relating to Variances and Alternative Procedures).(D) The owner or operator must report any suspected or confirmed releases indicated by the site assessment to the agency and comply with all applicable release investigation and corrective action requirements, as prescribed in Subchapter D of this chapter.(d) Records for change to exempt or excluded status.(1) Owners and operators shall maintain records adequate to demonstrate compliance with the requirements of this section, in accordance with §334.10(b) of this title (relating to Reporting and Recordkeeping).(2) At minimum, records of the release determination or site assessment, in accordance with the requirements in subsection (b)(2)(A)(ii) of this section shall be maintained for as long as any UST remains in service at the facility, or for five years after the UST system is changed from regulated to exempt or excluded status, whichever is longer.</content><note type="source"><p>Source Note: The provisions of this §334.56 adopted to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c334/scD"><num value="D">SUBCHAPTER D</num><heading>RELEASE REPORTING AND CORRECTIVE ACTION</heading><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.71"><num value="334.71">§334.71</num><heading>Applicability and Deadlines</heading><content>(a) The provisions of this subchapter are applicable to owners and operators of all underground storage tanks (USTs) and all petroleum product aboveground storage tanks (ASTs) unless otherwise specified in Subchapters A or F of this chapter (relating to General Provisions and Aboveground Storage Tanks, respectively). For releases to which Chapter 350 of this title (relating to Texas Risk Reduction Program) was previously applicable under former rule (i.e. releases reported on or after September 1, 2003), this subchapter shall be used as of the effective date of this subsection.(b) If the release was reported to the agency on or before December 22, 1998, the person performing the corrective action shall meet the following deadlines:(1) a complete site assessment and risk assessment (including, but not limited to, risk-based criteria for establishing target concentrations), as determined by the executive director, must be received by the agency no later than September 1, 2002;(2) a complete corrective action plan, as determined by the executive director and including, but not limited to, completion of pilot studies and recommendation of a cost-effective and technically appropriate remediation methodology, must be received by the agency no later than September 1, 2003. The person may, in lieu of this requirement, submit by this same deadline a demonstration that a corrective action plan is not required for the site in question under commission rules. Such demonstration must be to the executive director's satisfaction;(3) for those sites found under paragraph (2) of this subsection to require a corrective action plan, that plan must be initiated and proceeding according to the requirements and deadlines in the approved plan no later than March 1, 2004;(4) for sites which require either a corrective action plan or groundwater monitoring, a comprehensive and accurate annual status report concerning those activities must be submitted to the agency;(5) for sites which require either a corrective action plan or groundwater monitoring, all deadlines set by the executive director concerning the corrective action plan or approved groundwater monitoring plan shall be met; and(6) for sites that require either a corrective action plan or groundwater monitoring, have met all other deadlines under this subsection, and have submitted annual progress reports that demonstrate progress toward meeting closure requirements, a site closure request must be submitted to the executive director no later than September 1, 2011. The request must be complete, as judged by the executive director.(c) Failure to meet the deadlines detailed in subsection (b) of this section will result in a loss of reimbursement eligibility as described in Subchapter H of this chapter (relating to Reimbursement Program).</content><note type="source"><p>Source Note: The provisions of this §334.71 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective September 23, 1999, 24 TexReg 7422; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective November 9, 2006, 31 TexReg 9034; amended to be effective October 30, 2008, 33 TexReg 8790; amended to be effective March 19, 2009, 34 TexReg 1860.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.72"><num value="334.72">§334.72</num><heading>Reporting of Suspected Releases</heading><content>Owners and operators of aboveground storage tank (AST) and underground storage tank (UST) systems must report to the agency within 24 hours (see §334.50(d)(9)(A)(v) of this title (relating to Release Detection) for reporting requirements associated with statistical inventory reconciliation inconclusive results), and follow the procedures in §334.74 of this title (relating to Release Investigation and Confirmation Steps) for any of the following conditions:(1) The discovery by owners and operators, or written notification by others to the owner or operator, of released regulated substances at the AST or UST site or in the surrounding area (such as the presence of non-aqueous phase liquids or vapors in soils, basements, sewer and utility lines, and nearby surface water).(2) Unusual operating conditions observed by owners or operators (such as the erratic behavior of product dispensing equipment that is consistent with or indicates a release, the sudden loss of product from the AST or UST system, an unexplained presence of water in the tank, or liquid in the interstitial space of secondarily contained systems), unless:(A) the system equipment or component is found not to be releasing regulated substances to the environment;(B) any defective system equipment or component is immediately repaired or replaced; and(C) for secondarily contained systems, except as provided for in §334.50(d)(8)(C) of this title, any liquid in the interstitial space not used as part of the interstitial monitoring method (for example, brine filled) is immediately removed.(3) Monitoring results, including investigation of an alarm, from a release detection method required under §334.50 of this title or other method that indicates a release may have occurred unless:(A) the monitoring device is found to be defective and is immediately repaired, recalibrated, or replaced, or the monitoring procedure is found to be ineffective, and is modified, and additional monitoring does not confirm the initial result;(B) in the case of inventory control, described in §334.50(d)(1)(B) of this title, a second 30-day period of data does not confirm the initial result or the alarm investigation determines no release has occurred;(C) the leak is contained in the secondary containment:(i) except as provided for in §334.50(d)(8)(C) of this title, any liquid in the interstitial space not used as part of the interstitial monitoring method (for example, brine filled) is immediately removed; and(ii) any defective system equipment or component is immediately repaired or replaced; or(D) the alarm was investigated and determined to be a non-release event (for example, from a power surge or caused by filling the tank during release detection testing).</content><note type="source"><p>Source Note: The provisions of this §334.72 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.73"><num value="334.73">§334.73</num><heading>Investigation Due to Off-Site Impacts</heading><content>When required by the agency, owners and operators of aboveground storage tank (AST) or underground storage tank (UST) systems must follow the procedures in §334.74 of this title (relating to Release Investigation and Confirmation Steps) to determine if the AST or UST system is the source of off-site impacts. These impacts include the discovery of regulated substances (such as the presence of Non-Aqueous Phase Liquids (NAPLs) or vapors in soils, basements, sewer and utility lines, and nearby surface and drinking waters) that have been observed by agency staff or brought to the agency's attention by another party.</content><note type="source"><p>Source Note: The provisions of this §334.73 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.74"><num value="334.74">§334.74</num><heading>Release Investigation and Confirmation Steps</heading><content>Unless corrective action is initiated in accordance with §§334.76 - 334.81 of this title (relating to Initial Response to Releases; Initial Abatement Measures and Site Check; Site Assessment; Removal of Non-Aqueous Phase Liquids (NAPLs); Investigation for Soil and Groundwater Cleanup; and Corrective Action Plan), owners or operators must immediately investigate and confirm all suspected releases of regulated substances requiring reporting under §334.72 of this title (relating to Reporting of Suspected Releases) within 30 days, using either the following steps or another procedure and schedule approved or required by the agency.(1) System test. Owners or operators must conduct tests according to the requirements for tightness testing in §334.50 of this title (relating to Release Detection) and secondary containment testing described in §334.48(e) of this title (relating to General Operating and Management Requirements), as appropriate.(A) The test must determine whether:(i) a leak exists in the portion of the tank that routinely contains product or the attached delivery piping; or(ii) a breach of either wall of the secondary containment has occurred.(B) If the system test confirms a leak into the interstice or a release, owners and operators must repair, replace, or close the aboveground storage tank (AST) or underground storage tank (UST) system, and begin corrective action in accordance with §§334.76 - 334.81 of this title if the test results for the system, tank, or delivery piping indicate that a leak exists.(C) Further investigation is not required if the test results for the system, tank, and delivery piping do not indicate that a leak exists and if environmental contamination is not the basis for suspecting a release.(D) Owners and operators must conduct a site check as described in paragraph (2) of this section if the test results for the system, tank, and delivery piping do not indicate that a leak exists but environmental contamination is the basis for suspecting a release.(2) Site check. Owners and operators must measure for the presence of a release where contamination is most likely to be present at the AST or UST site. In selecting sample types, sample locations, and measurement methods, owners and operators must consider the nature of the stored substance, the type of initial alarm or cause for suspicion, the type of backfill, the depth to groundwater, and other factors appropriate for identifying the presence and source of the release.(A) If the test results from an excavated area, or other area(s) of the AST or the UST site indicate that a release has occurred, owners and operators must begin corrective action in accordance with §§334.76 - 334.81 of this title.(B) If the test results from an excavated area, or other area(s) of the AST or UST site do not indicate that a release has occurred, further investigation is not required.(3) In the event there is no evidence of a release after performing the tests required in paragraphs (1) and (2) of this section, the owner or operator must file a report which contains a detailed description of the investigative procedures followed in addressing the requirements of this section and which includes the results of all tests or monitoring performed. This report must be filed with the agency not later than 45 days after the first observation of the suspected release or another schedule approved or required by the agency. The owner or operator shall include with this report a statement which has been signed by the owner or operator certifying that the requirements of this section have been met.</content><note type="source"><p>Source Note: The provisions of this §334.74 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.75"><num value="334.75">§334.75</num><heading>Reporting and Cleanup of Surface Spills and Overfills</heading><content>(a) Owners and operators of aboveground storage tanks (AST) and underground storage tank (UST) systems must contain and immediately clean up a spill or overfill, report the spill or overfill to the agency within 24 hours, and begin corrective action in accordance with §§334.76-334.81 of this title (relating to Initial Response to Releases; Initial Abatement Measures and Site Check; Site Assessment; Removal of Non-Aqueous Phase Liquids; Investigation for Soil and Groundwater Cleanup; and Corrective Action Plan) in the following cases:(1) any spill or overfill of petroleum substance from an UST or any spill or overfill of petroleum product from an AST that results in a release to the environment that exceeds 25 gallons, or that causes a sheen on nearby surface water; and(2) any spill or overfill of a hazardous substance that results in a release from an UST to the environment that equals or exceeds its reportable quantity under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (40 Code of Federal Regulations (CFR) Part 302).(b) Owners and operators must contain and immediately clean up a spill or overfill of any petroleum substance from an UST or any petroleum product from an AST that is less than 25 gallons. Owners or operators of USTs must contain and immediately clean up a spill or overfill of a hazardous substance that is less than the reportable quantity under CERCLA (40 CFR Part 302). If cleanup cannot be accomplished within 24 hours, owners and operators must immediately notify the agency.</content><note type="source"><p>Source Note: The provisions of this §334.75 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.76"><num value="334.76">§334.76</num><heading>Initial Response to Releases</heading><content>Upon confirmation of a release in accordance with §334.74 of this title (relating to Release Investigation and Confirmation Steps) or after a release from the aboveground storage tank (AST) or underground storage tank (UST) system is identified in any other manner, owners and operators must perform the following initial response actions within 24 hours of a release:(1) report the release to the agency (e.g., by completed telephone call, facsimile transmission, or electronic mail);(2) take immediate action to prevent any further release of the regulated substance into the environment, including shutting down the leaking AST or UST system as determined necessary; and(3) identify and mitigate fire, explosion, and vapor hazards.</content><note type="source"><p>Source Note: The provisions of this §334.76 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.77"><num value="334.77">§334.77</num><heading>Initial Abatement Measures and Site Check</heading><content>(a) Unless directed to do otherwise by the agency, owners and operators must perform the following abatement measures:(1) remove as much of the regulated substance from the aboveground storage tank (AST) or underground storage tank (UST) system as is necessary to prevent further release to the environment;(2) visually inspect any aboveground releases or exposed below ground releases and prevent further migration of the released substance into surrounding soils and groundwater;(3) continue to monitor and mitigate any additional fire and safety hazards posed by vapors or free product that have migrated from the AST or UST excavation zone and entered into subsurface structures (such as sewers or basements);(4) remedy hazards posed by contaminated soils that are excavated or exposed as a result of release confirmation, site investigation, abatement, or corrective action activities. If these remedies include treatment or disposal of soils, the owner and operator must comply with applicable state and local requirements;(5) measure for the presence of a release where contamination is most likely to be present at the AST or UST site, unless the presence and source of the release have been confirmed in accordance with the site check required by §334.74 of this title (relating to Release Investigation and Confirmation Steps) or the closure site assessment of §334.55(e) of this title (relating to Permanent Removal from Service). In selecting sample types, sample locations, and measurement methods, the owner and operator must consider the nature of the stored substance, the type of backfill, depth to groundwater, and other factors as appropriate for identifying the presence and source of the release; and(6) investigate to determine the possible presence of Non-Aqueous Phase Liquids (NAPLs) and begin NAPL removal as soon as practicable and in accordance with §334.79 of this title (relating to Removal of Non-Aqueous Phase Liquids).(b) Within 20 days after release confirmation, owners and operators must submit a report to the agency summarizing the initial abatement steps taken under subsection (a) of this section and any resulting information or data unless another reporting period is specified by the agency.</content><note type="source"><p>Source Note: The provisions of this §334.77 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective January 2, 1995, 19 TexReg 10104; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.78"><num value="334.78">§334.78</num><heading>Site Assessment</heading><content>(a) Unless directed to do otherwise by the agency, owners and operators must assemble information about the site and the nature of the release, including information gained while confirming the release or completing the initial abatement measure in §334.75 and §334.76 of this title (relating to Reporting and Cleanup of Surface Spills and Overfills; and Initial Response to Releases). This information must include, but is not necessarily limited to the following:(1) data on the nature, cause, and estimated quantity of release;(2) data from available sources and/or site investigations concerning the following factors: surrounding populations, water quality, use and approximate locations of wells potentially affected by the release, subsurface soil conditions, locations of subsurface sewers, climatological conditions, and land use;(3) results of the site check required under §334.77 of this title (relating to Initial Abatement Measures and Site Check);(4) results of the Non-Aqueous Phase Liquids (NAPLs) investigations required under §334.77 of this title, to be used by owners and operators to determine whether free product must be recovered under §334.79 of this title (relating to Removal of Non-Aqueous Phase Liquids (NAPLs));(5) at a minimum, a determination of the degree and lateral and vertical extent of the on-site contaminated area (soil and groundwater) as required by the agency;(6) identification of all potential exposure pathways as required by the agency;(7) a determination of the site classification, in accordance with subsection (b) of this section;(8) an evaluation of the site pursuant to §334.203(1) of this title (relating to Risk-Based Criteria For Establishing Target Concentrations); and(9) any other related information requested by the agency.(b) Site classification. Owners and operators must conduct site assessment actions to collect critical information in a manner approved by, or directed by, the agency to determine the degree and nature of the release and identify potential receptors. Subsequently, the owner and operator of an aboveground storage tank (AST) or underground storage tank (UST) must establish the classification of the release(s) according to the classification system established by the agency. The classification system shall be used to qualitatively assess the degree of threat the release poses to public health and safety, and the environment relative to all other leaking storage tank sites. The classification system will be utilized by the agency as the primary method to coordinate leaking storage tanks sites.(1) Owners and operators shall utilize the site classification scheme established by the agency.(2) Classification will be based upon the results of completed assessment actions and the best professional judgment of the registered corrective action specialist and the agency.(3) The classification system shall be used to regulate the timing of corrective action at individual sites when necessary to protect the viability of the Petroleum Storage Tank Remediation Fund.(4) The classification of any one site may be adjusted upward or downward by the agency as further site information is obtained or as exposure conditions change.(5) Additional exposure scenarios may be added to the classification system by the agency as situations are encountered that are not currently addressed in the system.(6) The agency may direct corrective actions out-of-classification order as necessary to ensure efficient use of available agency resources, including staff, time, and the funds from the Petroleum Storage Tank Remediation Fund.(c) Within 45 days of release confirmation, owners and operators must submit the information collected in compliance with subsection (a) of this section to the agency in a manner that demonstrates its applicability and technical adequacy, or in a format and according to the schedule required by the agency.(d) Any documents submitted as a site assessment which do not contain all of the information required by this section shall not be accepted by the executive director, may be returned by the agency, and shall not qualify as a submitted site assessment for the purposes of this chapter. Return of such documents by the agency does not prevent the owner or operator from filing subsequent site assessment documentation.</content><note type="source"><p>Source Note: The provisions of this §334.78 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.79"><num value="334.79">§334.79</num><heading>Removal of Non-Aqueous Phase Liquids (NAPLs)</heading><content>At sites where investigations under §334.77 of this title (relating to Initial Abatement Measures and Site Check), or by other means, indicate the presence of Non-Aqueous Phase Liquids (NAPLs), owners and operators must remove NAPLs to the maximum extent practicable as determined by the agency while continuing, as necessary, any actions required under §334.80 and §334.81 of this title (relating to Investigations for Soil and Groundwater Cleanup; and Corrective Action Plan). In meeting the requirements of this section, owners and operators must:(1) conduct NAPL removal in a manner that minimizes the spread of contamination into previously uncontaminated zones by using recovery and disposal techniques appropriate to the hydrogeologic conditions at the site, and that properly treats, discharges, or disposes of recovery by-products in compliance with applicable local, state, and federal regulations;(2) abate the migration of NAPLs as a minimum objective for the design of the NAPL recovery system;(3) handle any regulated substances in a safe and competent manner to prevent fires, explosions, or other health hazards; and(4) unless directed to do otherwise, prepare and submit to the agency, within 45 days after confirming a release, a product recovery report that provides at least the following information:(A) the name of the person(s) responsible for implementing the NAPL removal measures;(B) the estimated quantity, type, and thickness of NAPL observed or measured in wells, boreholes, and excavations;(C) detailed information pertaining to the type of NAPL recovery system used;(D) whether any discharge will take place on-site or off-site during the recovery operation and where this discharge will be located;(E) the type of treatment applied to, and the effluent quality expected from any discharge;(F) the steps that have been, or are being taken to obtain necessary permits or other authorizations for any discharge;(G) the disposition of the recovered NAPL; and(H) any other related information requested by the agency.</content><note type="source"><p>Source Note: The provisions of this §334.79 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.80"><num value="334.80">§334.80</num><heading>Investigation for Soil and Groundwater Cleanup</heading><content>(a) To determine the full extent and location of soils contaminated by the release, the presence and concentrations of dissolved regulated substance contamination in the groundwater, and the risk associated with the release, owners and operators must conduct investigations of the release, the release site, and the surrounding area (including adjacent areas not under ownership by the owner or operator) as necessary to determine the extent of the release if any of the following conditions exist:(1) there is evidence that groundwater wells have been affected by the release (e.g., as found during release confirmation or previous corrective action measures);(2) Non-Aqueous Phase Liquid is found to need recovery in compliance with §334.79 of this title (relating to Removal of Non-Aqueous Phase Liquids (NAPLs));(3) there is evidence that contaminated soils may be in contact with groundwater (e.g., as found during conduct of the initial response measures or investigations required under §§334.75-334.79 of this title (relating to Reporting and Cleanup of Surface Spills and Overfills; Initial Response to Releases; Initial Abatement Measures and Site Check; Site Assessment; and Removal of Non-Aqueous Phase Liquids (NAPLs)); or(4) the agency requests an investigation, based on the potential effects of contaminated soil or groundwater on nearby surface water or groundwater resources.(b) Owners and operators must submit the information collected under subsection (a) of this section as soon as practicable, or in accordance with a schedule established by the agency.</content><note type="source"><p>Source Note: The provisions of this §334.80 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.81"><num value="334.81">§334.81</num><heading>Corrective Action Plan</heading><content>(a) At any point after reviewing the information submitted in compliance with §§334.76-334.78 of this title (relating to Initial Response to Releases; Initial Abatement Measures and Site Check; and Site Assessment), the agency may require owners or operators to submit additional information or to develop and submit a corrective action plan for responding to contaminated soils and groundwater. If a plan is required, owners and operators must submit the plan according to a schedule and format established by the agency. Alternatively, owners and operators may, after fulfilling the requirements of §§334.76-334.78 of this title, choose to submit a corrective action plan for responding to contaminated soil and groundwater. In either case, owners and operators are responsible for submitting a plan that provides for adequate protection of human health, safety, and the environment as determined by the agency, and must modify their plan as necessary to meet this standard.(b) The agency will approve the corrective action plan after ensuring that implementation of the plan will adequately protect human health, safety, and the environment as determined in §334.203 of this title (relating to Risk Based Criteria for Establishing Target Concentrations) and to achieve case closure criteria. In making this determination, the agency will consider the following factors as deemed appropriate:(1) the physical and chemical characteristics of the regulated substance, including its toxicity, persistence, and potential for migration;(2) the hydrogeologic characteristics of the facility and the surrounding area;(3) the proximity, quality, and current and future uses of nearby surface water and groundwater;(4) the potential effects of residual contamination on nearby surface water and groundwater;(5) an exposure assessment;(6) a determination of the most effective and feasible method of remediation;(7) an estimate of the time to achieve cleanup;(8) operation, monitoring, and performance plan; and(9) any information assembled in compliance with this subchapter.(c) Owners and operators shall submit information pertaining to the items in subsection (b) of this section upon request of the agency.(d) Any documents submitted as a corrective action plan which do not contain all of the information required by this section shall not be accepted or approved by the agency, may be returned by the agency, and shall not qualify as a submitted corrective action plan for the purposes of this chapter. Return of such documents by the agency does not prevent the owner or operator from filing subsequent corrective action plan documentation.(e) Upon approval of the corrective action plan or as directed by the agency, owners and operators must implement the plan, including any revisions to the plan as requested by the agency. They must monitor, evaluate, and report the results of implementing the plan in accordance with a schedule and in a format established by the agency.(f) Owners and operators may, in the interest of minimizing environmental contamination and promoting more effective cleanup, begin cleanup of soil and groundwater before the corrective action is approved provided that they:(1) notify the agency of their intention to begin cleanup;(2) comply with any conditions imposed by the agency, including halting cleanup or mitigating adverse consequences from cleanup activities;(3) incorporate these self-initiated cleanup measures in the corrective action plan that is submitted to the agency for approval; and(4) prior to discharge of any waste, obtain necessary authorization from the agency.(g) To verify the effectiveness of corrective action taken by the owner or operator, the agency may require continued monitoring of soil, vapors, groundwater, and/or surface water.(h) Upon completion of corrective action taken in response to the requirements of this section, the owner or operator must submit a statement signed by the owner or operator which certifies that the requirements of this section and the procedures in the approved corrective action plan have been accomplished.(i) The agency will issue a closure letter in response to the certification of completion of corrective action requirements submitted by the owner or operator as required in subsection (h) of this section.</content><note type="source"><p>Source Note: The provisions of this §334.81 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.82"><num value="334.82">§334.82</num><heading>Public Participation</heading><content>(a) For each confirmed release that requires corrective action, the owner or operator must provide notice to the public by means designated to reach those members of the public directly affected by the release and the planned corrective action. This notice may include, but is not limited to, public notice in local newspapers, block advertisements, publication in a state register, certified letters to individual households or businesses, or personal contacts.(b) The owner or operator must submit proof of the notification required under subsection (a) of this section to the agency within 30 days of either agency, or owner or operator, determination that off-site assessment is required, whichever date is earlier.(c) The agency shall give public notice to affected parties if implementation of an approved corrective action plan does not achieve the established cleanup levels in the plan and termination of that plan is under consideration by the executive director. When corrective action is performed by the agency, the agency will provide the notification referenced in subsection (a) of this section.</content><note type="source"><p>Source Note: The provisions of this §334.82 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.83"><num value="334.83">§334.83</num><heading>Emergency Orders</heading><content>Notwithstanding any other provision of this subchapter, the commission or the executive director may issue emergency orders under Texas Water Code, §5.510 and Chapter 35 of this title (relating to Emergency and Temporary Orders and Permits; Temporary Suspension or Amendment of Permit Conditions) to the owner or operator of an aboveground storage tank or underground storage tank.</content><note type="source"><p>Source Note: The provisions of this §334.83 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective December 10, 1998, 23 TexReg 12445; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.84"><num value="334.84">§334.84</num><heading>Corrective Action by the Agency</heading><content>(a) The agency may undertake corrective action in response to a release or a threatened release if:(1) the owner or operator of the aboveground storage tank (AST) or underground storage tank (UST) is unwilling to take appropriate corrective action;(2) the owner or operator of the AST or UST cannot be found;(3) the owner or operator of the AST or UST, in the opinion of the agency, is unable to take the corrective action necessary to protect the public health and safety and/or the environment;(4) the owner or operator is eligible for an extension for corrective action reimbursement under Texas Water Code, §26.3571; has been granted such extension by the executive director; has applied to the agency in writing on an agency application form not later than July 1, 2011, to have an eligible corrective action site placed in the Petroleum Storage Tank State Lead Program administered by the commission; and has agreed on the application form to allow access to that site to state personnel and state contractors. Once the executive director places such a site in the state lead program, the eligible owner or operator of that site is not liable to the commission for any corrective action costs incurred by the state lead program with regard to the site, unless the statutorily allowable maximum cost per site is exceeded; or(5) notwithstanding any other provision of this subchapter, the executive director determines that more expeditious corrective action than is provided by this subchapter is necessary to protect the public health and safety or the environment.(b) The agency may retain agents to perform corrective action it considers necessary to carry out the provisions of this chapter. The agents shall operate under the direction of the executive director.(c) The agency shall generate a written response either accepting or denying the application of an eligible owner or operator, who has applied to the agency in accordance with the requirements of subsection (a)(4) of this section to have an eligible corrective action site placed in the Petroleum Storage Tank State Lead Program, within 30 calendar days, as practicable, of the date that application is received by the agency's state lead program.(d) The commission may undertake corrective action to remove a UST or AST that:(1) is not in compliance with the requirements of this chapter;(2) is temporarily out of service as described in §334.54(a) of this title (relating to Temporary Removal from Service) or out of operation as defined in §334.2(71) of this title (relating to Definitions);(3) presents a contamination risk. A determination of the potential risk of contamination from a site may be made by the executive director based on such factors including, but not limited to, estimated age of the tank system; status as secured or non-secured; presence, absence, whether known or unknown, of regulated substances in the tank system; length of time the tank system has been out of service; location, including proximity to sensitive receptors; and any other relevant information regarding the UST system; and(4) is owned or operated by a person who is financially unable to remove the tank. A determination of financial inability under this section may be made by the executive director based on such factors including, but not limited to, a tank owner or operator's financial statements; federal or state income tax returns; gross and net income for each of the three preceding years; net worth for each of the three preceding years; current cash flow position; long-term liabilities; the liquidity of assets; and any other data requested by the executive director, which in the opinion of the executive director is relevant to a determination of the ability of the tank owner or operator to fund proper removal of UST systems from service pursuant to §334.55 of this title (relating to Permanent Removal from Service).</content><note type="source"><p>Source Note: The provisions of this §334.84 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 9, 2006, 31 TexReg 9034; amended to be effective October 30, 2008, 33 TexReg 8790; amended to be effective April 19, 2012, 37 TexReg 2674.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scD/s334.85"><num value="334.85">§334.85</num><heading>Management of Wastes</heading><content>The management and disposition of waste generated as a result of a release of regulated substances associated with an aboveground or underground storage tank must be in accordance with all applicable federal and state requirements and in a manner that will not result in adverse impacts to human health and safety and the environment.</content><note type="source"><p>Source Note: The provisions of this §334.85 adopted to be effective September 29, 1989, 14 TexReg 4714; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c334/scF"><num value="F">SUBCHAPTER F</num><heading>ABOVEGROUND STORAGE TANKS</heading><section identifier="/us/state/tx/tac/t30/p1/c334/scF/s334.121"><num value="334.121">§334.121</num><heading>Purpose and Applicability for Aboveground Storage Tanks (ASTs)</heading><content>(a) Purpose. The purpose of this subchapter is to provide a regulatory program for aboveground storage tanks (ASTs) storing petroleum products, as prescribed by the Texas Water Code, Chapter 26, Subchapter I, to maintain and protect the quality of groundwater and surface water resources in the state from certain substances in ASTs that may pollute such groundwater and surface water resources, and to provide for the protection of human health and safety, as well as the protection of the overall environment of the state.(b) Applicability.(1) An AST shall be subject to the regulations in this subchapter only when such tank:(A) meets the definition of "aboveground storage tank" in §334.122 of this title (relating to Definitions for Aboveground Storage Tanks (ASTs));(B) contains, has contained, or will contain a "petroleum product" as defined in §334.2 of this title (relating to Definitions);(C) is not exempted from regulation in §334.123 of this title (relating to Exemptions for Aboveground Storage Tanks (ASTs)); and(D) is not excluded from regulation in §334.124 of this title (relating to Exclusions for Aboveground Storage Tanks (ASTs)).(2) The requirements and provisions in this subchapter are applicable to regulated ASTs, and to the registration, installation notification, reporting, recordkeeping, release reporting and corrective action, fee assessment, and other requirements associated with such tanks, as more fully described in this subchapter.(3) The requirements and provisions in this subchapter apply equally to all owners and operators of regulated ASTs, including individuals, trusts, firms, joint-stock companies, corporations, governmental corporations, partnerships, associations (including nonprofit and charity organizations), states, municipalities, commissions, political subdivisions of a state, interstate bodies, consortiums, joint ventures, commercial and noncommercial entities, and the United States government (including all of its departments), except as otherwise provided in this subchapter.(4) The following types of aboveground tanks are subject to the regulations in this subchapter if they meet the general qualifications for an AST in paragraph (1) of this subsection:(A) compartmental tanks, when at least one of the compartments is used to store petroleum products; and(B) dual-use or multiple-use tanks which alternately store two or more substances, when at least one of the stored substances is a petroleum product.(5) If a storage tank containing a petroleum product technically meets the definitions of both an AST and an underground storage tank (UST) under this chapter, then the tank will be considered an UST, and must conform with all applicable requirements for UST in this chapter.(6) Consistent with the exemption for heating oil tanks in §334.123(a)(2) of this title, an AST storing a petroleum product (such as kerosene or diesel) which is primarily used as a heating oil substitute for heating purposes on the premises where stored, and which is secondarily used as a motor fuel for the operation of internal combustion engines, is exempt from the regulations of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §334.121 adopted to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scF/s334.122"><num value="334.122">§334.122</num><heading>Definitions for Aboveground Storage Tanks (ASTs)</heading><content>(a) Except as provided in subsection (b) of this section, the words and terms used in this subchapter have the meanings prescribed in §334.2 of this title (relating to Definitions), unless the context clearly indicates otherwise.(b) The following words and terms, as used in this subchapter only, shall have the following meanings, unless the context clearly indicates otherwise.(1) Aboveground storage tank--A nonvehicular device (including any associated piping) that is made of nonearthen materials; located on or above the surface of the ground, or on or above the surface of the floor of a structure below ground, such as a mineworking, basement, or vault; and designed to contain an accumulation of petroleum products.(2) Associated piping--All underground pipes or aboveground pipes (including related valves, elbows, joints, flanges, connectors, and other fittings) which are directly associated with an AST storing petroleum products, which are located at the AST facility, and through which petroleum products flow or in which petroleum products are contained or stored.(3) Bulk facility--A facility, including pipeline terminals, refinery terminals, rail and barge terminals, and associated underground and ASTs, connected or separate, from which petroleum products are withdrawn from bulk and delivered into a cargo tank or barge used to transport those products.(4) Electric generating facility--A plant or facility where on-site equipment is used to generate electrical power on a continuous or regular basis. This term does not include emergency generators, as defined in §334.2 of this title.(5) Nonearthen materials--Man-made materials designed to provide structural support and containment, such as concrete, steel, or plastic.(6) Nonvehicular device--A fixed, stationary, or moveable storage vessel which is not affixed or mounted to any self-propelled, towable, or pushable vehicle (e.g., wagon, truck, trailer, railcar, aircraft, boat, or barge).</content><note type="source"><p>Source Note: The provisions of this §344.122 adopted to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scF/s334.123"><num value="334.123">§334.123</num><heading>Exemptions for Aboveground Storage Tanks (ASTs)</heading><content>(a) The following aboveground storage tanks (ASTs) are exempt from regulation under this subchapter: (1) a farm or residential tank with a capacity of 1,100 gallons or less used for storing motor fuel for non-commercial purposes; (2) a tank used for storing heating oil for consumptive use on the premises where stored; (3) a septic tank; (4) a surface impoundment, pit, pond, or lagoon; (5) a stormwater or wastewater collection system; (6) a flow-through process tank; (7) a tank, liquid trap, gathering line, or other facility used in connection with an activity associated with the exploration, development, or production of oil, gas, or geothermal resources, or any other activity regulated by the Railroad Commission of Texas pursuant to the Texas Natural Resources Code, §91.101; (8) a tank located on or above the surface of the floor of an underground area, such as a basement, cellar, mineworking, drift, shaft, or tunnel, if the sole or principal substance in the tank is a hazardous substance; and (9) a tank that is located at or is part of a petrochemical plant, a petroleum refinery, an electric generating facility, or a bulk facility. (b) The following pipeline facilities are exempt from regulation under this subchapter, as provided in Texas Water Code, §26.344: (1) an interstate pipeline facility, including gathering lines, or any AST connected to such facility, if the pipeline facility is regulated under the Hazardous Liquid Pipeline Safety Act of 1979 (49 United States Code, §60101, et seq. and its subsequent amendments or a succeeding law).(2) an intrastate pipeline facility or any AST connected to such a facility, if the pipeline facility is regulated under one of the following state laws: (A) the Texas Natural Resources Code, Chapter 111; (B) the Texas Natural Resources Code, Chapter 117; or (C) Texas Civil Statutes, Article 6053-1 and 6053-2. (c) Upon request by the agency, the owner and operator of a tank claimed to be exempted under this section must provide appropriate documentation or other information in a timely manner to support that claim.</content><note type="source"><p>Source Note: The provisions of this §334.123 adopted to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scF/s334.124"><num value="334.124">§334.124</num><heading>Exclusions for Aboveground Storage Tanks (ASTs)</heading><content>(a) Except as provided in subsection (b) of this section, the following aboveground storage tanks (ASTs) are excluded from regulation under this subchapter:(1) any tank with a capacity of 1,100 gallons or less;(2) any emergency spill protection or emergency overflow containment tank, including any sump or secondary containment system, which is used solely for the temporary storage or containment of petroleum products resulting from a leak, spill, overfill, or other unplanned release of petroleum products from any source, and where the petroleum products are routinely removed within 48 hours of the discovery of the release, provided that this tank must be inspected for a release no less than once every 30 days;(3) any tank that contains petroleum products at such dilute concentrations that:(A) the mixture is not capable of being used as a fuel for the propulsion of a motor vehicle or aircraft; and(B) any release would not pose any significant threat to human health and safety or the environment;(4) a transformer or other electrical equipment that is used in the transmission of electricity.(b) Regardless of the exemptions in subsection (a) of this section, any AST containing petroleum products located at a retail service station is subject to the construction notification requirements of §334.126 of this title (relating to Installation Notification for Aboveground Storage Tanks (ASTs)).(c) Upon request by the agency, the owner and operator of a tank claimed to be excluded under this section must provide appropriate documentation or other information in a timely manner to support that claim.</content><note type="source"><p>Source Note: The provisions of this §334.124 adopted to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scF/s334.125"><num value="334.125">§334.125</num><heading>General Prohibitions and Requirements for Aboveground Storage Tanks (ASTs)</heading><content>(a) Delivery prohibition. Except as provided in paragraph (1) of this subsection, on or after June 25, 1990, no common carrier (as defined in §334.2 of this title (relating to Definitions) shall deposit any petroleum products into an aboveground storage tank (AST) unless he observes that the owner or operator has a valid, current registration certificate, issued by the agency in accordance with §334.127 of this title (relating to Registration for Aboveground Storage Tanks (ASTs)).(1) For new or replacement AST systems, only during the initial period ending 90 days after that petroleum product is first deposited into such system(s), a common carrier may accept, as adequate to meet this requirement, documentation that the owner or operator has a "temporary delivery authorization" (as defined at §334.127(h) of this title) issued by the agency for the facility at which the new or replacement AST system(s) exists.(2) A common carrier delivering petroleum product into an AST system may observe a valid, current, original registration certificate (or temporary delivery authorization, if applicable), or a legible copy of the same.(b) Owner/Operator requirements. The owner and operator of ASTs regulated under this section must make available to a common carrier a valid, current Texas Commission on Environmental Quality (TCEQ) tank registration certificate (or TCEQ temporary delivery authorization, as applicable) before delivery of a petroleum product(s) into the AST(s) can be accepted. The bill of lading for the first delivery of petroleum product into any new or replacement AST system at the facility must be attached to the temporary delivery authorization for that facility.</content><note type="source"><p>Source Note: The provisions of this §334.125 adopted to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scF/s334.126"><num value="334.126">§334.126</num><heading>Installation Notification for Aboveground Storage Tanks (ASTs)</heading><content>(a) Except as provided in subsection (b) of this section, any person who intends to install a new or replacement aboveground storage tank (AST) must comply with the notification requirements of this section prior to initiating such activity.(1) Installation notifications shall be submitted to the agency at least 30 days prior to initiating the activity.(A) The notification may be provided either to the agency's central office in Austin or to the agency's appropriate regional office. The official date of notification shall be the date on which the notification is first received in an agency office.(B) Notification may be provided by the owner or operator, or an authorized representative of the owner or operator, (e.g., the contractor or consultant retained for the activity). Notifications filed by unauthorized persons shall be null and void.(C) Notifications shall be submitted on the agency's authorized form. The form shall be filled out completely. Upon completion, the form shall be dated and signed by the owner or operator (or authorized representative) and shall be filed in accordance with this paragraph.(D) When appropriate, installation notifications for ASTs (as required under this section) may be filed together with construction notifications for underground storage tank (UST) activities at the same facility (as required by §334.6 of this title (relating to Construction Notification for Underground Storage Tank (USTs) and UST Systems)), provided that complete and accurate explanation of the activities is included.(E) Between 24 and 72 hours prior to the scheduled time of initiation of the installation, the owner or operator (or authorized representative) shall contact the agency's appropriate regional office to confirm the time of the initiation of the installation activities.(F) The requirements and procedures for rescheduling, waiver requests, and expiration as related to installation notifications for ASTs shall be in conformance with the procedures for construction notifications applicable to USTs in §334.6(b)(3)-(5) of this title.(2) When requested by the agency, any person who intends to install a new or replacement AST shall also submit additional supporting information to assure that the activity is in compliance with applicable statutes and regulations.(3) In addition to the installation notification requirements of this section, the owner or operator of a proposed AST that is to be located in the designated recharge zone or transition zone of the Edwards Aquifer shall also secure the requisite approval from the executive director prior to initiating any installation or replacement activities, as prescribed in Chapter 313 of this title (relating to Edwards Aquifer).(4) When an existing UST is to be removed from the ground and is to be subsequently converted to an AST, the person must comply with the applicable technical requirements under §334.55 of this title (relating to Permanent Removal from Service) and with the notification requirements of §334.6 and §334.126 of this title (relating to Construction Notification for Aboveground Storage Tanks (ASTs) and Installation Notification for Aboveground Storage Tanks (ASTs)).(b) The following ASTs shall not be subject to the installation notification requirements of this section:(1) ASTs which are exempt from regulation under §334.123 of this title (relating to Exemptions for Aboveground Storage Tanks (ASTs));(2) ASTs which are excluded from regulation under §334.124 of this title (relating to Exclusions for Aboveground Storage Tanks (ASTs));(3) movable or mobile ASTs (e.g., skid tanks) which are moved from one location to another on a regular basis, which are not permanently part of any particular facility, and which are otherwise in compliance with the provisions of §334.127(f) of this title (relating to Registration for Aboveground Storage Tanks (ASTs)); except that any movable or mobile ASTs proposed for installation or placement at a retail service station shall remain subject to the installation notification requirements of this section.</content><note type="source"><p>Source Note: The provisions of this §334.126 adopted to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scF/s334.127"><num value="334.127">§334.127</num><heading>Registration for Aboveground Storage Tanks (ASTs)</heading><content>(a) General provisions.(1) All aboveground storage tanks (ASTs) in existence on or after September 1, 1989, must be registered with the agency on authorized agency forms in accordance with subsection (e) of this section, except for those tanks which:(A) are exempt from regulation under §334.123 of this title (relating to Exemptions for Aboveground Storage Tanks (ASTs)); or(B) are excluded from regulation under §334.124 of this title (relating to Exclusions for Aboveground Storage Tanks (ASTs)).(2) The owner and operator of an AST are responsible for compliance with the tank registration requirements of this section. An owner or operator may designate an authorized representative to complete and submit the required registration information; however, the owner and operator remain responsible for compliance with the provisions of this section.(3) All ASTs subject to the registration requirements of this section are also subject to the fee provisions in §334.128 of this title (relating to Annual Facility Fees for Aboveground Storage Tanks (ASTs)), except where specifically exempted from such fee provisions. The failure by a tank owner or operator to properly or timely register any tanks shall not exempt the owner from such fee assessment and payment provisions.(4) Proper completion of the specified agency tank registration form will result in the agency's issuance of a registration certificate for the tanks at the facility covered by that registration. This certificate is tied to the delivery prohibitions detailed in §334.125 of this title (relating to General Prohibitions and Requirements for Aboveground Storage Tanks (ASTs)).(b) Existing tanks. Any person who owns or operates an AST subject to the provisions of this section that was in existence on September 1, 1989, shall register such tank with the agency not later than March 1, 1990, on an authorized agency form.(c) New or replacement tanks. Any person who owns or operates a new or replacement AST subject to the provisions of this section that is placed into service on or after September 1, 1989, must register the tank with the agency on an authorized agency form within 30 days from the date any petroleum product is first placed into the tank.(d) Changes or additional information. An owner or operator of an AST subject to the provisions of this section must provide written notice to the agency of any changes or additional information concerning the status of any regulated tanks, including, but not limited to, information regarding the operational status, condition, substance stored, ownership, location of records, and number of tanks. This notice must be submitted on an authorized agency form which has been completed in accordance with subsection (e) of this section. This form must be properly completed and signed, and shall include the Texas Commission on Environmental Quality (TCEQ) facility identification number in the appropriate space on the form. Notice of any change or additional information must be filed with the agency within 30 days of the occurrence of the change or addition, or within 30 days from the date on which the owner or operator first became aware of the change or addition, as applicable.(e) Required form for providing AST registration information.(1) Any AST owner or operator required to submit tank registration information under subsections (a) - (d) of this section must provide all the information indicated on the agency's authorized form for each regulated AST owned.(2) The tank registration form must be filled out completely and accurately. Upon completion, the form must be dated and signed by the owner, operator, or an authorized representative of the owner or operator, and must be filed with the agency within the time frames specified in this section.(3) All AST owners or operators required to submit AST registration information under subsections (a) - (d) of this section must provide the registration information for all ASTs located at a particular facility on the same registration form.(4) All AST owners or operators who own or operate ASTs located at more than one facility must complete and file a separate registration form for each facility where regulated ASTs are located, unless otherwise allowed under subsection (f) of this section.(5) If additional documents are submitted with new or revised registration data, the specific facility identification information (including the facility identification number, if known) must be conspicuously indicated on each document, and all such documents must be securely attached to and filed with the registration form.(f) Registration requirements for movable ASTs. Movable or mobile ASTs which are regularly used to store petroleum products (e.g., skid tanks) must also be registered by the owner or operator in accordance with the provisions of this section. When such tanks are intended to be moved from one location to another on a regular basis and are not permanently part of any particular facility, then an owner or operator may register the tanks in accordance with the following procedures:(1) for the purposes of completing the tank registration form, the owner or operator must identify the facility location for such movable tanks as the owner's or operator's principal business address or location;(2) the owner or operator must continuously maintain complete and accurate records of the specific location, operational status, condition, and type of petroleum products stored at the owner's or operator's principal business address or location. At any given time, the records must include the required tank information for at least the preceding five years. Such records must be readily accessible and available for inspection upon request by agency personnel; and(3) any movable or mobile tank which is registered at the owner's or operator's business address or location, rather than at the actual facility location, must be permanently and legibly labeled with the agency's designated identification number for such tank by painting, decals, tags, or other permanent identification method.(g) Inadequate information. When any of the required AST registration information submitted to the agency is determined to be inaccurate, unclear, illegible, incomplete, or otherwise inadequate, the agency may require the owner and/or operator to submit additional information. An owner and/or operator must submit any such additional information within 30 days of receipt of such request.(h) Temporary delivery authorization.(1) Upon receipt of a TCEQ construction notification form indicating pending installation of a new or replacement AST system(s), the agency will issue a temporary delivery authorization for that tank system(s).(2) The temporary delivery authorization is valid for no more than 90 days after the first delivery of petroleum product into the new or replacement AST system.(3) The AST owner and operator are responsible for maintaining complete and accurate records of the date of the first deposit of petroleum product into a new or replacement AST, as well as the date that the initial 90-day period expires. The bill of lading for the first delivery of regulated substance into any new or replacement AST at the facility must be attached to the temporary delivery authorization for that facility.</content><note type="source"><p>Source Note: The provisions of this §334.127 adopted to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scF/s334.128"><num value="334.128">§334.128</num><heading>Annual Facility Fees for Aboveground Storage Tanks (ASTs)</heading><content>(a) Fee assessments.(1) Except as provided in subsection (e) of this section, an annual facility fee of $25 will be assessed by the agency for each aboveground storage tank (AST) subject to the registration provisions of §334.127 of this title (relating to Registration for Aboveground Storage Tanks (ASTs)).(2) All annual facility fees will be billed to, and must be payable by, the owner of the AST.(3) Payment of annual facility fees is due no later than 30 days after the date the agency mails a statement of the assessment to the tank owner.(4) Annual facility fees must be paid by check, certified check, or money order made payable to the Texas Commission on Environmental Quality. Payments must be mailed to the address specified in the billing statement.(b) Billing schedule.(1) The agency will establish a schedule for the billing of annual facility fees.(2) Regardless of the actual billing date, the total amount of annual facility fees billed to and payable by an owner will be based on the total number of regulated ASTs in place on or after the first day of each fiscal year (September 1).(c) Failure to make payment.(1) Annual facility fees must be paid at the time and in the manner and amount provided by this section.(2) The agency will impose interest and penalties on owners who fail to make payment of the annual facility fees assessed under this section when due in accordance with Chapter 12 of this title (relating to Payment of Fees).(d) Disposition of fees, interest, and penalties. As required by the Texas Water Code (TWC), §26.358(g), the agency will deposit all annual facility fees collected, together with all interest and penalties collected for late payment, in the state treasury to the credit of the storage tank fund.(e) Exception. An annual facility fee shall cease to be assessed, effective September 1, 2007, and shall not be assessed until such time as reinstated by the commission at an amount determined appropriate by the commission, however, prior owing tank fees are still due as previously described. In addition, at such time as the annual facility fee is reinstated by the commission, it will not be assessed for an AST which is owned by a common carrier railroad, as provided in the TWC, §26.344(g).</content><note type="source"><p>Source Note: The provisions of this §334.128 adopted to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective February 14, 1997, 22 TexReg 1328; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective October 30, 2008, 33 TexReg 8790.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scF/s334.129"><num value="334.129">§334.129</num><heading>Release Reporting and Corrective Action for Aboveground Storage Tanks (ASTs)</heading><content>(a) An owner or operator of an aboveground storage tank (AST) must comply with the same release reporting, investigation, and corrective action requirements and procedures applicable to underground storage tanks, as prescribed in Subchapter D of this chapter (relating to Release Reporting and Corrective Action), whenever a suspected or confirmed release of a petroleum product from an AST has occurred.(b) An owner or operator of an AST which stores other petroleum substances or hazardous substances which are not petroleum products must comply with the release reporting, investigation, and corrective action requirements prescribed in the Texas Water Code, Chapter 26, Subchapter G.</content><note type="source"><p>Source Note: The provisions of this §334.129 adopted to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scF/s334.130"><num value="334.130">§334.130</num><heading>Reporting and Recordkeeping for Aboveground Storage Tanks (ASTs)</heading><content>(a) Reporting. Owners and operators of aboveground storage tanks (ASTs) must assure that all reporting and filing requirements in this subchapter are met, including the following (as applicable):(1) installation notification in accordance with §334.126 of this title (relating to Installation Notification for Aboveground Storage Tanks (ASTs));(2) application for approval of any proposed AST in the Edwards Aquifer recharge or transition zones, in accordance with §334.126(3) of the this title and Chapter 313 of this title (relating to Edwards Aquifer);(3) registration of ASTs and changes in information, in accordance with §334.127 of this title (relating to Registration for Aboveground Storage Tanks (ASTs));(4) payment of annual facility fees for ASTs, in accordance with §334.128 of this title (relating to Annual Facility Fees for Aboveground Storage Tanks (ASTs));(5) all reports, plans, and certifications related to actions taken in response to suspected and confirmed releases of petroleum products, in accordance with §334.129 of this title (relating to Release Reporting and Corrective Action for Aboveground Storage Tanks (ASTs)) and Subchapter D of this chapter (relating to Release Reporting and Corrective Action);(6) any other reports, filings, notifications, or other submittals required by this subchapter, or otherwise required by the agency or the commission to demonstrate compliance with the provisions of this subchapter.(b) Recordkeeping.(1) General recordkeeping requirements.(A) Except as provided in subparagraph (B) of this paragraph, owners and operators of ASTs must comply with the same general recordkeeping requirements applicable to underground storage tanks, as prescribed in §334.10(b)(1) of this title (relating to Reporting and Recordkeeping).(B) Owners and operators of movable or mobile ASTs (e.g., skid tanks) may maintain the records for such tanks in accordance with the provisions of §334.127(f)(2) of this title.(2) Required records and documents. Owners and operators of ASTs must assure that legible copies of all original and amended tank registration documents, as prescribed in §334.127 of this title, are maintained for the operational life of the AST.</content><note type="source"><p>Source Note: The provisions of this §334.130 adopted to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scF/s334.132"><num value="334.132">§334.132</num><heading>Other General Provisions for Aboveground Storage Tanks (ASTs)</heading><content>(a) Other regulations. Compliance with the provisions of this subchapter by an owner or operator of an aboveground storage tank (AST) must not relieve such owner or operator from the responsibility of compliance with any other laws and regulations directly and/or indirectly affecting such tanks and the stored petroleum products, including, but not necessarily limited to, all applicable regulations legally promulgated by the United States Environmental Protection Agency, United States Occupational Safety and Health Administration, United States Department of Transportation, United States Nuclear Regulatory Commission, United States Department of Energy, Texas Department of Health, State Board of Insurance (including State Fire Marshal), Railroad Commission of Texas, Texas Department of Agriculture, State Comptroller, Texas Department of Public Safety, Texas Natural Resource Conservation Commission and any other federal, state, and local governmental agencies or entities having appropriate jurisdiction.(b) Responsibilities of owners and operators. The owners and operators of ASTs subject to the provisions of this subchapter are responsible for ensuring compliance with all applicable provisions of this subchapter. Owners and operators are responsible for any violations or noncompliant activities resulting from the actions or inactions by any person who is employed or otherwise engaged by the owner or operator.(c) Inspections, monitoring, and testing.(1) For the purposes of developing or assisting in the development of a regulation, conducting a study, or enforcing this subchapter, an owner or operator of an AST, on the request of the agency must:(A) furnish information related to the tank, including tank equipment and contents; and(B) permit a designated agent or employee of the agency at all reasonable times to have access to and to copy all records relating to the tank.(2) For the purposes of developing or assisting in the development of a regulation, conducting a study, or enforcing this subchapter, the agency's designated agent or employee may:(A) enter at reasonable times an establishment or place in which an AST is located;(B) inspect and obtain samples of a petroleum substance contained in the tank from any person; and(C) conduct monitoring or testing of the tank, associated equipment, contents, or surrounding soils, air, surface water, or groundwater.(3) The agency may direct an owner or operator of an AST to conduct monitoring and testing if the agency finds that there is reasonable cause to believe that a release has occurred in the area in which the tank is located.</content><note type="source"><p>Source Note: The provisions of this §334.132 adopted to be effective June 25, 1990, 15 TexReg 3424; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c334/scG"><num value="G">SUBCHAPTER G</num><heading>TARGET CONCENTRATION CRITERIA</heading><section identifier="/us/state/tx/tac/t30/p1/c334/scG/s334.201"><num value="334.201">§334.201</num><heading>Purpose, Applicability, and Deadlines</heading><content>(a) Purpose. The purpose of this subchapter is to establish the criteria by which target concentrations are established for the cleanup of leaking storage tank site releases discovered and reported to the agency.(b) Applicability. The provisions of this subchapter are applicable to owners and operators of all underground storage tanks (USTs) and petroleum product aboveground storage tanks (ASTs) unless otherwise specified in Subchapters A and F of this chapter (relating to General Provisions and Aboveground Storage Tanks, respectively).(c) Deadlines. For sites where the release was reported to the agency on or before December 22, 1998, the deadlines detailed in §334.71(b) of this title (relating to Applicability and Deadlines) apply.</content><note type="source"><p>Source Note: The provisions of this §334.201 adopted to be effective November 8, 1995, 20 TexReg 8800; amended to be effective September 23, 1999, 24 TexReg 7422; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective March 19, 2009, 34 TexReg 1860.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scG/s334.202"><num value="334.202">§334.202</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Carcinogen--Substances which have been classified for human carcinogenic risk based on the United States Environmental Protection Agency's Weight of Evidence System of Carcinogenicity as:(A) Group A--Human Carcinogen;(B) Group B--Probable Human Carcinogen; or(C) Group C -Possible Human Carcinogen.(2) Carcinogen classification--The basis by which substances are classified for human carcinogenic risk based on the United States Environmental Protection Agency's Weight of Evidence System for Carcinogenicity:(A) Group A--Human Carcinogen;(B) Group B--Probable Human Carcinogen;(C) Group C--Possible Human Carcinogen;(D) Group D--Not Classifiable as to Human Carcinogenicity; and(E) Group E--Evidence of Non-Carcinogenicity for Humans.(3) Commercial/industrial land use--Any real property or portion of a property not currently being used for human habitation or for other purposes with a similar potential for human exposure. Examples of commercial/industrial land use include manufacturing; industrial research and development; utilities; commercial warehouse operations; lumber yards; retail gas stations; auto service stations; auto dealerships; equipment repair and service stations; professional offices (lawyers, architects, engineers, real estate, insurance, etc.); medical/dental offices and clinics (not including hospitals); financial institutions; publicly owned office buildings; any retail business whose principal activity is the sale of food or merchandise; personal service establishments (health clubs, barber/beauty salons, mortuaries, photographic studios, etc.); churches (not including churches providing day care or school services other than during normal worship services), and motels/hotels (not including those which allow residence).(4) Compliance point--Location(s) selected between the source area(s) and the potential exposure point(s) where concentrations of regulated substances must be at or below the determined target concentrations in media (for example, groundwater, air, soil).(5) Direct exposure pathway--An exposure pathway where the point of exposure is at the source, without a release to any other medium.(6) Engineering control--Modifications to a site or facility (for example, slurry walls, capping, point of use water treatment) to reduce or eliminate the potential for exposure to a regulated substance.(7) Exposure--Subjection of an organism to the action, influence, or effect of a regulated substance (chemical agent) or physical agent. Exposure is quantified as the amount of the agent available at the exchange boundaries (e.g., skin, lungs, gut) and available for absorption by the human body.(8) Exposure assessment--The determination or estimation (qualitative or quantitative) of the magnitude, frequency, duration and route of exposure.(9) Exposure factors--Those factors used to derive an estimate of the exposure to a regulated substance.(10) Exposure pathways--The course a regulated substance takes from a source to an exposed organism. An exposure pathway describes a unique mechanism by which an individual or population is exposed to chemicals at or originating from a leaking storage tank site. Each exposure pathway includes a source, an exposure point, and an exposure route. If the exposure point differs from the source, a transport mechanism must also be present.(11) Exposure point--A location where human or environmental receptors can come into contact with regulated substances; also, a location which can be arbitrarily determined for purposes of estimating or measuring the concentration of regulated substances available for exposure.(12) Hazard index--The sum of two or more hazard quotients for multiple regulated substances and/or multiple exposure pathways which impact the same target organ or act by the same method of toxicity.(13) Hazard quotient--The ratio of a single substance exposure level over a specific time period to a reference dose for that substance derived from a similar exposure period.(14) Indirect exposure pathway--An exposure pathway with at least one intermediate release to any media between the source and the point(s) of exposure (for example, chemicals of concern from soil through ground water to the point(s) of exposure).(15) Institutional control--Legally binding instruments that the responsible party and the agency may use as part of a corrective action plan to control or eliminate an otherwise viable exposure pathway to ensure that exposure to remaining regulated substances is reduced to a human health and environmentally protective level. Institutional controls may include record notice, land use restrictions, land access restrictions and controls, or other legally binding and practically feasible instrument.(16) Maximum contaminant level or MCL--The maximum concentration in water of a regulated substance established by the United States Environmental Protection Agency under Section 141 of the Federal Safe Drinking Water Act.(17) Non-carcinogen--Substances shown either through epidemiological studies or through laboratory studies to cause adverse health effects other than cancer.(18) Potential beneficial use--The potential use derived from a natural resource (for example, groundwater or surface water) to benefit a user if that resource was not affected by the released regulated substance. This will not consider uses that are unlikely to occur or otherwise extreme circumstances. Groundwater is considered to have a potential beneficial use as a drinking water source if the natural quality of the groundwater is less than 10,000 mg/l total dissolved solids content, yields of usable quantities of water are discharged to wells or springs, or there is a documented use of the groundwater.(19) Reasonable maximum exposure estimates--Combination of upper-bound and mid-range exposure factors to be used in dose estimation equations to provide a result which represents an exposure scenario that is both protective and reasonable; not the worst case. Exposure factors as presented in United States Environmental Protection Agency Office of Solid Waste and Emergency Response (OSWER) Directive 9285.6-03, March 25, 1991 or a superseding OSWER directive shall be considered appropriate values for estimation of the reasonable maximum exposure.(20) Receptor--Person, structure, utility, surface waters, and water supply wells that are or may be adversely affected by a release.(21) Residential land use--Property used for dwellings such as single family houses and multifamily apartments, children's homes and nursing homes. Because of the similarity of exposure potential and the sensitive nature of the potentially exposed population, day care facilities, educational facilities, hospitals, parks and like facilities shall also be considered "residential."(22) Risk--The probability that a regulated substance, when released into the environment, will cause an adverse effect in exposed humans or other living organisms.(23) Site--Includes all land, regardless of ownership considerations or property boundaries, which is directly affected by the regulated substance.(24) Target concentrations--Site-specific and chemical-specific concentration goals for affected media (for example, soil, air, groundwater, surface water) that are protective of human health and safety, and the environment.(25) Total excess cancer risk--The upper bound on the estimated excess cancer risk associated with exposure to multiple regulated substances and multiple exposure pathways.</content><note type="source"><p>Source Note: The provisions of this §334.202 adopted to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scG/s334.203"><num value="334.203">§334.203</num><heading>Risk-Based Criteria for Establishing Target Concentrations</heading><content>Owners and operators shall apply the following risk-based criteria to evaluate sites and determine target concentrations:(1) Plan A site evaluation criteria. The owner and operator should use Plan A established target concentrations to screen sites for closure, or use the Plan A criteria to establish target concentrations for the purposes of establishing a corrective action plan in accordance with §334.81 of this title (relating to Corrective Action Plans), or to evaluate the potential benefit of further site evaluation under paragraph (2) of this section. (A) The owner and operator shall consider potential exposure to receptors through direct and indirect exposure pathways as required by the agency and determine whether or not such pathways are complete. A pathway is considered complete if there is a source area, a transport mechanism and an existing or potential receptor; (B) For complete pathways, target concentrations shall be calculated using equations and models, target risk goals, and exposure factors as established by the agency; (C) Target concentrations shall be based upon chemical property information defined by the agency when such information is provided by the agency; (D) Target concentrations for indirect or cross-media pathways shall be based upon default media property assumptions defined by the agency when site-specific media property information is not available; (E) Target concentrations shall be based upon residential land use unless the owner and operator satisfies the requirements of §334.204 of this title (relating to Criteria for Selection of Land Use) to demonstrate commercial/industrial land use is more appropriate. (F) The owner and operator shall use equations and models as required by the agency to calculate target concentrations; (G) Target air concentrations shall be evaluated when there is concern of a potential vapor hazard, or known or suspected indoor air exposure to regulated substances. Regulated substance concentrations in soils and groundwater are not to generate vapors in soil, air, utilities, or in the atmosphere which could cause an explosive atmosphere at any surface or subsurface structure. The presence of free product and associated level of vapors and the presence of conduits or pathways such as utility conduits, foundation piers, foundation cracks that may act as a transport pathway should be considered in this determination; (H) Target surface water concentrations shall be as provided in the Texas Surface Water Quality Standards of Chapter 307 of this title (relating to Supplemental Surface Water Quality Standards) and Chapter 319 of this title (relating to General Regulations Incorporated Into Permits). If those values are not available or appropriate, then federal maximum contaminant levels (MCLs) promulgated under the federal Safe Drinking Water Act (42 Code of Federal Regulations §300f, et seq.) shall apply. If MCLs are not available or appropriate, then the target surface water concentrations are to be based on reasonable maximum exposure expected to occur through human ingestion of the water; (I) Target groundwater concentration criteria: (i) the actual beneficial use or potential beneficial use of the affected groundwater shall be considered; (ii) groundwater with a natural total dissolved solids content of less than 10,000 mg/l and which is capable of yielding useable quantities of water to a well or spring shall be considered to have a potential beneficial use. When no site-specific data is available, the affected groundwater shall be considered to be potentially useable; (iii) residential groundwater ingestion shall be the default exposure pathway unless the owner and operator can show to the satisfaction of the agency that the documented actual beneficial use of the affected groundwater is for a use other than drinking water purposes; (iv) the individual carcinogenic risk must not exceed a range of 1 X 10-6 to 1 X 10-4 as required by the agency for beneficial use groundwaters. For any carcinogen, if the federally promulgated MCL is a higher value (less stringent), then the MCL may be used; (v) the hazard quotient for non-carcinogens shall not exceed unity (one) for beneficial use groundwater; (vi) Only the removal of non-aqueous phase liquid as required pursuant to §334.79 of this title (relating to Removal of Non-Aqueous Phase Liquid) and any subsequent monitoring as required by the agency shall be necessary when the affected groundwater is of no potential beneficial use provided the owner and operator can document to the satisfaction of the agency that the dissolved regulated substance concentrations for such groundwater that is less than 15 feet deep, is protective of potential direct contact by construction workers; that any explosive vapors, adverse affects to subsurface utilities, nuisance conditions, discharge of regulated substances to surface waters at unprotective levels, and plume expansion have been abated and should not occur in the future. When any of these conditions are not met with only the removal of non-aqueous phase liquid, then target groundwater concentrations shall be established by the owner and operator so as to meet these conditions; (vii) Target groundwater concentrations shall apply throughout the groundwater plume; and (viii) If remaining groundwater concentrations will discharge to a surface water body or other potentially usable aquifer at an unprotective level, then an additional compliance point shall be established for the point of discharge. The target groundwater concentration to be applied at the additional compliance point(s) shall be based on the applicable target concentration for the receiving water. (J) Target soil concentration criteria: (i) ingestion of soils from ground surface to a depth of 15 feet for residential and commercial/industrial land uses unless the owner and operator can provide documentation to the satisfaction of the agency that an alternate depth is more appropriate. Fifteen feet in the opinion of the agency represents a reasonable depth above which soil could be excavated and brought to the ground surface during construction activities; (ii) inhalation of volatile and particulate emissions for residential and commercial/industrial land uses, when the soil from ground surface to a depth of 15 feet is affected, but not covered with an impermeable surface. If the owner and operator can provide sufficient evidence that the impermeable surface will be maintained and will prevent inhalation exposure, then inhalation from soil contaminants may be dropped from further analysis; (iii) cross-media affects (e.g., soil leachate to groundwater); (iv) the target soil concentration shall be the lower concentration of clauses (i), (ii) or (iii) of this subparagraph; (v) reasonable maximum exposure expected to occur under both current and future land use for either residential or commercial/industrial as appropriate for the site; (vi) maximum detected concentrations of regulated substances remaining in place; (vii) the individual carcinogenic risk shall not exceed 1 X 10-6 for Class A and B carcinogens and 1 X 10-5 for Class C carcinogens; and (viii) the hazard quotient must not exceed unity (one) for non-carcinogens; (K) Target concentrations for soil, air and water shall also take into account other factors such as vegetation effects, sensitive environmental receptors, and aesthetic considerations (e.g., stained surface soils) as appropriate in the final analysis; (L) The maximum levels of regulated substances remaining in all affected media shall meet the established target concentrations throughout the entire extent of affected area unless the owner and operator can demonstrate to the satisfaction of the agency that such action is technically infeasible and that public health and the environment are otherwise adequately protected; (M) The owner and operator shall submit reports in accordance with a schedule and in a format established by the agency; (N) The owner and operator or agency may recommend institutional controls in accordance with §334.205 of this title (relating to Institutional Control Requirements) to reinforce exposure assumptions; and (O) Any necessary requirements as established by the agency to protect public health, safety, and the environment. (2) Plan B site-evaluation criteria. The owner and operator may elect to further evaluate a site under Plan B to determine more appropriate target concentrations for affected media which may be used to justify a closure recommendation, or for the purposes of establishing a corrective action plan in accordance with §334.81 of this title. (A) The owner and operator shall consider potential exposure to receptors through direct and indirect exposure pathways as required by the agency and determine whether or not such pathways are complete or not. A pathway determined to be incomplete in the Plan A evaluation does not need to be reevaluated under this subsection. (B) For complete pathways, target concentrations shall be calculated using equations, target risk goals, and exposure factors as established by the agency. (C) Target concentrations shall be based upon chemical property information defined by the agency when such information is provided by the agency. (D) Target concentrations for indirect or cross-media pathways shall be based upon default media property assumptions and models defined by the agency when site-specific media property information is not available. Use of site-specific media property information is encouraged as part of this evaluation. If the owner and operator wish to use alternative models, prior concurrence from the agency shall be obtained. (E) The agency may require owners and operators to collect additional site information prior to or after the evaluation of the site under this section to substantiate the conclusions of the evaluation. (F) For known or suspected carcinogens, the individual and cumulative carcinogenic risk of 1 X 10-6 to 1 X 10-4 as required by the agency. (G) Target concentrations are to be established at concentrations which do not exceed a hazard index of unity (one) for non-carcinogens. (H) The owner and operator may apply target concentrations for direct exposure pathways calculated under paragraph (1) of this section at reasonable exposure points instead of the source area unless the source area is a reasonable exposure point. All exposure points assumptions are subject to approval by the agency. (I) The agency may allow use of compliance points to serve as the basis for meeting target concentrations for indirect exposure pathways provided: (i) the proposed compliance point locations are consistent with the results of the exposure assessment; (ii) the proposed compliance point locations are upgradient of actual receptors; (iii) the proposed compliance point locations will not allow unaffected receptors to become affected; (iv) the proposed compliance point locations are accessible for monitoring/sampling; (v) karst, fracture controlled, or otherwise highly complex hydrogeologic system is not involved; (vi) estimates or predictions of compliance point concentrations and degree and rate of transport of regulated substances are verified with site monitoring data. Where site monitoring data and contaminant fate and transport modelling results yield conflicting information, the agency shall place more value on the monitoring data; (vii) the agency may require the use of specific contaminant fate and transport models; and (viii) target concentrations shall be met at all points beyond (downgradient of) the compliance point(s). (J) When the criteria for the use of compliance points as required in subparagraph (I) of this paragraph cannot be met, then the target concentrations for indirect exposure pathways shall be met throughout the plume. (K) Target concentrations for soil, air, and water shall also take into account other factors such as vegetation effects, sensitive environmental receptors, and aesthetic considerations (e.g., stained surface soils) as appropriate in the final analysis. (L) The owner and operator, or the agency, may recommend the use of specific institutional controls to control or eliminate potentially viable exposure pathways, and to reinforce exposure assumptions and future land use assumptions. (M) The owner and operator shall submit reports in accordance with a schedule and in a format established by the agency. (N) The owner and operator shall meet all requirements imposed by the agency. (3) Health-based target concentration established pursuant to paragraphs (1) or (2) of this section shall be based upon toxicological information current at the time the report is submitted to the agency. Toxicological information shall be from the following sources in order of listing: (A) United States Environmental Protection Agency Integrated Risk Information System (IRIS); (B) Health Effects Assessment Summary Table (HEAST); (C) United States Environmental Protection Agency Criteria Documents; (D) Agency for Toxic Substances and Disease Registry (ATSDR) Toxicological Profiles; and (E) other scientifically valid published sources that are widely accepted. (4) Target concentrations shall be based on the particular land use (residential or commercial/industrial) as defined in §334.202 of this title (relating to Definitions) of each affected property. (5) The exposure assessment and determination of target concentrations conducted pursuant to paragraphs (1) or (2) of this section shall consider: (A) the physical and chemical characteristics of the regulated substance, including its toxicity, persistence, and potential for migration; (B) the hydrogeologic characteristics of the facility and the surrounding area; (C) the proximity, quality, and current and future uses of nearby surface water and groundwater; (D) the potential effects of residual contamination on nearby surface water and groundwater; (E) an exposure assessment considering exposure pathways as requested by the agency; (F) any information assembled in compliance with this subchapter; and (G) any additional considerations as established by the agency. (6) After receipt of a written statement by the agency that all corrective action regulations have been met and that no further corrective actions are warranted, then the case shall be considered closed unless a substantial change in circumstances results in an unacceptable risk to human health or the environment. A substantial change in circumstance shall include, but is not limited to: (A) a failure to maintain the obligations of an institutional control as set out in §334.206 of this title (relating to Criteria for Institutional Control Use); (B) a change in land use from a less sensitive land use to a more sensitive land use, such as commercial/ industrial to residential; (C) an actual exposure condition is determined to be occurring at levels not protective of human health and safety, or the environment. For purposes of this subchapter, changes in toxicity values or general procedures utilized to determine target concentrations shall not be considered a substantial change in circumstances, unless these changes are of such magnitude to present an unacceptable threat to human health and safety, or the environment when evaluated for future exposure conditions based on site- specific considerations; or (D) new information indicates that the regulated substances at the facility or affected area were not sufficiently characterized such that an unacceptable threat to human health and safety, or the environment continues to exist.</content><note type="source"><p>Source Note: The provisions of this §334.203 adopted to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scG/s334.204"><num value="334.204">§334.204</num><heading>Criteria for Selection of Land Use</heading><content>The owner and operator shall address each of the following when determining the use of the affected property(ies).(1) The past and current use of the affected property. Residential land use areas should be assumed to remain residential. Properties with past and/or current commercial/industrial land use which are surrounded by commercial/industrial facilities can be assumed to remain the same unless such is clearly not appropriate.(2) Properties for which the future use of the property is unknown (property is vacant or for sale) shall assume residential land use unless the owner and operator can demonstrate to the satisfaction of the agency that the past use of the property and use of surrounding properties clearly suggests future use of the property for residential land use is unlikely.(3) For property currently vacant, or not owned by the owner or operator, the property owner should be interviewed to establish the intended future use of the property. Statements explaining planned future land use and signed by the affected property owners should be provided to the agency for each affected property to verify that the property owners have been consulted.(4) For property located within the jurisdictional area of a zoning authority, the owner and operator may provide documentation that the property is zoned for residential, commercial, or industrial use.(5) Current and planned surrounding land use patterns of local planning board.(6) Other information as requested by the agency to verify the appropriate categorization of land use.</content><note type="source"><p>Source Note: The provisions of this §334.204 adopted to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scG/s334.205"><num value="334.205">§334.205</num><heading>Institutional Control Requirements</heading><content>When institutional controls are assumed in determining target concentrations, the owner and operator shall file institutional control requirements in the county deed records of the county or counties in which the property affected by the institutional control is located. Institutional controls shall be required when such action is needed to demonstrate control or elimination of exposure pathways in a manner consistent with §334.203(1) or (2) of this title (relating to Risk-Based Criteria for Establishing Target Concentrations). Institutional controls may also be required to provide notice to future land owners that residual regulated substances are present at the site when the site is considered protective so long as there is no substantial change in site conditions or use of the property which would change the exposure conditions. All institutional control information filed in the county deed records must be written such that a layperson can easily understand it.(1) Institutional controls may be required as part of the corrective action plan when: (A) the residential cumulative carcinogenic risk level exceeds 1 X 10-5 for Class A and B carcinogens for residential use properties (child or adult); (B) the commercial/industrial cumulative carcinogenic risk level exceeds 1 X 10-5 level for Class A and B carcinogens for commercial/industrial use properties; (C) an engineering or legal control is needed to eliminate an otherwise viable exposure pathway; (D) sites not zoned commercial/industrial that are to close under commercial/industrial land use assumption and adjoin residential property when the same site under a residential land use assumption would exceed a cumulative carcinogenic risk of 1 x 10-4 or a hazard index of unity (one); and (E) when requested by the agency. (2) The owner and operator, or the agency, may recommend the specific conditions of the institutional control. In the event the agency and the owner and operator are unable to agree upon a suitable institutional control, then the agency will require target concentrations to be established so as to eliminate a need for an institutional control. (3) Institutional controls may only be employed on sites when the owner(s) of the affected property(ies) is/are in agreement with the placement and the conditions of the institutional control. A written statement signed by the owner, or their designated agent, of each property directly affected by the placement of the institutional control must be provided to the agency by the owner and operator which indicates that the owner of the affected property understands the requirements set forth in §334.206 of this title (relating to Criteria for Institutional Control Use) and agrees with the placement and terms of the institutional control.</content><note type="source"><p>Source Note: The provisions of this §334.205 adopted to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scG/s334.206"><num value="334.206">§334.206</num><heading>Criteria for Institutional Control Use</heading><content>(a) Within 90 days of the date the agency requests the filing of an institutional control, the owner and operator must provide a certified copy of the filed institutional control stamped by the County Clerk(s), listing the page and volume of the record notice to the agency. The filed institutional control must contain:(1) the name and address of the owner and operator of the tract of land to which the institutional controls are applicable, and a metes and bounds description of the portion(s) of the tract of land affected by the institutional control as agreed to by the agency;(2) a plat map clearly demarcating the portion(s) of the tract of land to which the institutional control applies. The map must contain a north arrow, a correlating map scale, and a legend identifying any used symbols or abbreviations;(3) a certification by a registered professional land surveyor so registered by the Texas Board of Professional Land Surveying attesting to the accuracy of the descriptions provided in paragraphs (1) and (2) of this subsection;(4) the terms of the institutional control as presented in §334.208 of this title (relating to Model Institutional Control);(5) a statement that the agency must be notified in writing at least 120 days prior to changes in site use or site conditions which violate the terms of the institutional control, when the terms of the institutional control place use conditions on the affected area;(6) a statement that information and documents concerning the corrective action effort and contaminant conditions are available for inspection upon request of the agency;(7) a statement that residual levels of regulated substances are present at the site and that generation of the affected soils or water may require special handling and disposal and/or treatment in accordance with applicable state and federal regulations; and(8) other information as requested by the agency.(b) The current or future owner of the property affected by the institutional control shall notify the agency in writing at least 120 days prior to changing the use or altering the condition of the site such that the conditions specified in the institutional control would no longer be met. The owner and operator will then provide a re-evaluation of the site to the agency within 30 days of the date of notification such that the property owner is able to demonstrate:(1) that levels of regulated substances have degraded such that human health and safety, and the environment are protected under the planned land use or site condition change;(2) the site will be adequately cleaned to meet human health and environmental protective levels for the planned land use or site condition change; or(3) application of a revised institutional control will ensure adequate protection of public health and safety and the environment. The revised institutional control shall conform with all requirements of this section relating to institutional controls.(c) When the implementation of institutional controls by the owner and operator is a condition of site closure, and such condition was stipulated in a final concurrence letter issued by the agency, the closure status is valid only so long as the conditions set forth in the institutional control agreed to by the agency and filed in the county deed records are met. When the conditions of the institutional control are not met, then the conditions for closure are no longer met, and site closure status is nullified. The current or future owner and operator affected by the institutional control shall notify the agency within 24 hours of the discovery that the conditions of the institutional control are not met. When the conditions of the institutional control are not met and the change in site use or condition was not coordinated as defined in subsection (a)(5) of this section, then the future or current owner and operator is out of compliance pursuant to §334.81(h) of this title (relating to Corrective Action Plan) and may be subjected to formal enforcement proceedings.(d) When appropriate analytical evidence demonstrates to the reasonable satisfaction of the agency that concentrations of residual substances at the site no longer exceed the target risk goals by process of natural degradation or other active site cleanup, then the agency shall agree by written concurrence to the placement of a statement in the county deed records by the current or future owner of the land which nullifies the need for the institutional control and indicates that residual substance concentrations meet health protective levels. Under this condition, the final concurrence letter shall remain in effect.</content><note type="source"><p>Source Note: The provisions of this §334.206 adopted to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scG/s334.207"><num value="334.207">§334.207</num><heading>Waste Management</heading><content>The future removal of any soil or water affected by the residual regulated substances must be properly handled and disposed and/or treated in accordance with all applicable state and federal regulations, and in such a way so as to protect public health and safety, and the environment.</content><note type="source"><p>Source Note: The provisions of this §334.207 adopted to be effective November 8, 1995, 20 TexReg 8800.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scG/s334.208"><num value="334.208">§334.208</num><heading>Model Institutional Controls</heading><content>This is an example of the language the agency would accept for deed restrictions, etc., that address residual contamination left at a given location. In some instances an institutional control is an acceptable alternative to further remediation, but adequate notice via a deed restriction, etc., is needed for the protection of current and future property owners.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §334.208 adopted to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c334/scH"><num value="H">SUBCHAPTER H</num><heading>REIMBURSEMENT PROGRAM</heading><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.301"><num value="334.301">§334.301</num><heading>Applicability of this Subchapter</heading><content>(a) Authorization for reimbursement. This subchapter authorizes the reimbursement of the expenses of corrective action taken in response to a release of:(1) petroleum products from a petroleum storage tank;(2) hydraulic fluid and other substances from a hydraulic lift system located at a vehicle service and fueling facility; and(3) spent oil and other substances from spent oil tanks located at a vehicle service and fueling facility, provided that the tank listed under this subsection is also subject to regulation under Subchapter D of this chapter (relating to Release Reporting and Corrective Action).(b) Deadline for commencing corrective action. This subchapter applies only under the following conditions:(1) the confirmed release or releases which necessitated the corrective action were reported to the agency on or before December 22, 1998; and(2) the release is confirmed by the agency.(c) Expenses considered for payment--time frame in which corrective action performed. Subject to the other requirements of this subchapter, the expenses which may be considered for payment from the petroleum storage tank remediation fund are limited to expenses of corrective action which was performed for the owner or operator on or after September 1, 1987, and conducted in response to a confirmed release that was initially discovered and reported to the agency on or before December 22, 1998. Expenses for corrective action performed prior to September 1, 1987, are not subject to reimbursement or payment. No expenses for corrective action performed after September 1, 2005 will be reimbursed unless the owner or operator is eligible for an extension for corrective action reimbursement under Texas Water Code, §26.3571 and has been granted such an extension by the executive director. The Petroleum Storage Tank Remediation (PSTR) Account may be used to reimburse an eligible owner or operator for corrective action performed under an extension before August 31, 2011. No reimbursements will be made for corrective action expenses sought in claims submitted to the agency after March 1, 2012. Under no circumstances will any reimbursements be made on or after September 1, 2012.(d) Limitations. This subchapter shall not be construed to authorize reimbursement or payment from the PSTR fund in situations other than those described in subsection (a) of this section and any person seeking reimbursement under this subchapter must meet the requirements of this subchapter.(e) Operative date for this subchapter. This subchapter applies as follows.(1) This subchapter authorizes applications for payment from the PSTR fund to be filed and processed pursuant to its terms on and after July 17, 1990, and ratifies any actions relating to filing and processing applications taken in accordance with this subchapter.(2) This subchapter authorizes the agency to make payments pursuant to its terms from the PSTR fund on and after July 17, 1990, and ratifies any payments made in accordance with this subchapter.(3) All costs incurred in the course of performing corrective action which are incurred on or after September 1, 1987, will be subject to the terms of this subchapter for the purposes of determining whether those costs are allowable. Nothing in this paragraph shall be construed to invalidate payments made by the agency under prior rules of the commission.(f) Possibility of invalidity. If any section, subsection, paragraph, subparagraph, clause, or subclause of this subchapter is held invalid, such invalidity shall not affect any other section, subsection, paragraph, subparagraph, clause, or subclause which can be given effect without the invalid provision, and to this end the provisions of this subchapter are declared to be severable.(g) Suspending payments from the PSTR fund. The executive director may suspend payments from the fund, in whole or in part, as necessary to preserve the viability of the fund.(h) Order of consideration, processing, and payment of claims. Effective September 1, 1995, the executive director shall consider and process a claim by an eligible owner or operator for reimbursement from the PSTR fund in the order in which it is received, with the following provisions:(1) The executive director shall consider and process all claims by eligible owners and operators for reimbursement from the fund that were received before September 1, 1995, before the executive director considers a claim received after that date.(2) The executive director may postpone considering, processing, or paying a claim for reimbursement for corrective action work begun without prior commission approval after September 1, 1993, that is filed with the commission before January 1, 2005.</content><note type="source"><p>Source Note: The provisions of this §334.301 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective March 4, 1992, 17 TexReg 1385; amended to be effective June 7, 1993, 18 TexReg 3293; amended to be effective November 25, 1993, 18 TexReg 8355; amended to be effective February 1, 1995, 20 TexReg 285; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective November 9, 2006, 31 TexReg 9034; amended to be effective October 30, 2008, 33 TexReg 8790.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.302"><num value="334.302">§334.302</num><heading>General Conditions and Limitations Regarding Reimbursement; Assignments</heading><content>(a) To be considered for reimbursement under this subchapter, corrective action must be performed either as provided in subsection (b) of this section or in response to a release which:(1) results in contamination which penetrates beyond the excavation zone of the tank system and which is above action levels determined by the agency;(2) is ultimately confirmed by the agency, either before or after corrective action commences, provided that it shall be the burden of the person claiming monies under this subchapter to show both that a release which is eligible for reimbursement occurred and the expenses claimed are allowable and reimbursable; and(3) the confirmed release was initially discovered and reported to the agency on or before December 22, 1998.(b) Subsection (a) of this section does not apply if the corrective action is specifically required by an order of the commission, or a written request or confirmation by the agency, and the release was initially discovered and reported to the agency on or before December 22, 1998.(c) No payments shall be made by the agency under this subchapter for:(1) the owner/operator contribution described in §334.312 of this title (relating to Owner/Operator Contribution), which the agency may apportion in the case of multiple claimants as provided in §334.314(f) of this title (relating to Fund Payment Report);(2) any expenses for corrective action which exceed $1 million per occurrence;(3) any expenses relating to compensation for bodily injury or property damage;(4) any expenses for corrective action incurred for confirmed releases initially discovered and reported to the agency after December 22, 1998;(5) any expenses related to corrective action performed after September 1, 2005, unless the owner or operator is eligible for an extension for corrective action reimbursement under Texas Water Code, §26.3571 and has been granted such an extension by the executive director. The Petroleum Storage Tank Remediation (PSTR) Account may be used to reimburse an eligible owner or operator for corrective action performed under an extension before August 31, 2011;(6) any expenses related to corrective action contained in a reimbursement claim filed with the agency after March 1, 2012;(7) any expenses on or after September 1, 2012; or(8) payments to an owner and/or operator, who acts as his own prime contractor or consultant, in the form of markup of amounts paid to subcontractors (see Appendix A Note 1 in "Part 9: Markup" or in excess of the limitation listed in Note 5 in "Part 1: Professional Personnel/Labor Rates" and/or in excess of the limitation listed in Note 2 in "Part 8: Report Generation Costs" of §334.560 of this title (relating to Reimbursable Cost Specifications)).(d) No expenses for which reimbursement is claimed under this subchapter and no expenses which are to be applied to the owner/operator contribution shall be subject to reimbursement or applied to the owner/operator contribution unless the following conditions have been met.(1) An application for reimbursement must be filed by the owner or operator of a petroleum storage tank or his/her duly authorized agent, as required by §334.304 of this title (relating to Who May File Application).(2) Unless otherwise approved by the agency, a certification affidavit as provided in the application for reimbursement must be signed by all of the following: owner or operator of a petroleum storage tank, the application preparer, and the prime contractor and/or the prime corrective action specialist, as defined in §334.322 of this title (relating to Subchapter H Definitions).(3) The application has been filed within the time prescribed in §334.303 of this title (relating to When to File Application).(4) The person seeking reimbursement must be an eligible owner or operator, as defined in §334.322 and §334.310 of this title (relating to Subchapter H Definitions and Requirements for Eligibility, respectively) or they must be authorized through an assignment by an eligible owner or eligible operator to receive such payment under subsections (i) - (k) of this section.(5) The expenses for which reimbursement is sought, and those which are to be applied to the owner/operator contribution must be allowable costs, as defined in §334.308 of this title (relating to Allowable Costs and Restrictions on Allowable Costs).(6) The allowable costs for which reimbursement is sought and those which are to be applied to the owner/operator contribution must be reimbursable, as defined in §334.309 of this title (relating to Reimbursable Costs).(7) An application for reimbursement has been filed in accordance with this subchapter which contains the information required by this subchapter.(e) For purposes of this subchapter only, the persons listed in §334.310 of this title may be eligible owners or operators, provided that they meet the other criteria prescribed by this subchapter.(f) All claims for assistance and reimbursement filed under this subchapter are subject to the availability of funds in the petroleum storage tank remediation fund.(g) Nothing in this subchapter shall affect the liability or responsibility of an owner or operator of an underground or aboveground storage tank to take corrective action in response to a release in accordance with applicable law.(h) Nothing in this subchapter shall be construed to create an entitlement to monies in the petroleum storage tank remediation account or any other fund, and the commission reserves the right to amend or repeal without limitation any of the provisions of this subchapter, including provisions regarding eligibility and allowable costs.(i) Payment made to persons other than the eligible owner or operator may only be made subject to subsections (j) and (k) of this section and may only be made to assignees duly authorized to receive payment on behalf of an eligible owner or operator except as provided by §334.306(f) of this title (relating to Form and Contents of Application).(j) Authorization for an assignee to receive payment on behalf of an eligible owner or operator must be in writing and signed by the eligible owner or operator who is requesting payment. The authorization must clearly describe what funds the assignee is authorized to receive. If the agency determines that the authorization is not clear as to the disposition of funds to which the eligible owner or operator is entitled, the agency may withhold payment and request written clarification from the eligible owner or operator. The agency may limit the number of assignees who may receive payments for any one occurrence. Notwithstanding any review made or limitations imposed by the agency under this section, neither the State of Texas, nor the agency shall be responsible for ensuring that payment is made to the parties as contemplated by the authorization. It is the responsibility of the eligible owner or operator and the assignee requesting payment to ensure that the agency is supplied with information sufficient to make the proper payments. The right to receive payment under this subchapter is not transferable for any purpose and only the people authorized to receive payment under this section are entitled to do so.(k) No payment of funds will be made to any person other than the eligible owner or operator under this subchapter, except as follows:(1) the person assigned the right to accept payment on behalf of an eligible owner or operator. Such assignees are limited to the following:(A) a Prime Corrective Action Specialist, properly registered under Subchapter J of this chapter (relating to Leaking Petroleum Storage Tank Corrective Action Specialist Registration and Project Manager Licensing), hired by the owner or operator to perform corrective action activities at the leaking petroleum storage tank site in question who also holds a lienhold interest on the real estate or fixture that is attached to the real estate where the release occurred and on which the claim for payment is based; or(B) a person who has insured the owner or operator of petroleum storage tanks for pollution liability on or after July 17, 1990, and who has paid claims on that policy for remediation costs for which the tank owner may be reimbursed under this subchapter; or(C) any other person who holds legal or equitable title to the property where the release occurred and on which the claim for payment is based; and(2) the type of ownership interest required under paragraph (1)(A) and (C) of this subsection is an interest in the surface estate of the property.</content><note type="source"><p>Source Note: The provisions of this §334.302 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective March 4, 1992, 17 TexReg 1385; amended to be effective March 25, 1993, 18 TexReg 1687; amended to be effective June 7, 1993, 18 TexReg 3293; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective November 18, 2004, 29 TexReg 10532; amended to be effective November 9, 2006, 31 TexReg 9034; amended to be effective October30, 2008, 33 TexReg 8790.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.303"><num value="334.303">§334.303</num><heading>When to File Application</heading><content>(a) An application for reimbursement under this subchapter must be filed on or after January 17, 1990, but not after March 1, 2012.(b) No expenses are allowable for reimbursement under this subchapter unless a complete application for reimbursement is filed.(c) For claimed expenses of corrective action activities, the application for reimbursement will not be considered complete until the supporting information, reports, and/or documentation required by the agency under Subchapter D of this chapter (relating to Release Reporting and Corrective Action) have been filed with the agency.</content><note type="source"><p>Source Note: The provisions of this §334.303 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective November 9, 2006, 31 TexReg 9034; amended to be effective October 30, 2008, 33 TexReg 8790.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.304"><num value="334.304">§334.304</num><heading>Who May File Application</heading><content>Only the following person may file an application for reimbursement under this subchapter:(1) the eligible owner of a tank from which a release has occurred and for which partial or completed corrective action has been performed, or his duly authorized agent;(2) the eligible operator of a tank from which a release has occurred and for which partial or completed corrective action has been performed, or his duly authorized agent;(3) an owner or operator ordered by the commission or required in a written corrective action directive by the agency staff on or after September 1, 1987, to assess the nature and extent of contamination in cases where no release is discovered, or the duly authorized agent of such owner or operator; or(4) a past owner or operator who, in response to a release, performed corrective action on or after September 1, 1987.</content><note type="source"><p>Source Note: The provisions of this §334.304 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective March 4, 1992, 17 TexReg 1385; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.305"><num value="334.305">§334.305</num><heading>Where and How Documents Must Be Filed</heading><content>(a) Any application for reimbursement or claim for payment filed pursuant to this subchapter, plus any fees and registration information required pursuant to §334.310(a) of this title (relating to Requirements for Eligibility) must be submitted to the agency, at the address specified on the application form.(b) All documents to be filed under this subchapter shall be filed with the agency using one of the following:(1) certified mail, return receipt requested;(2) express mail or other overnight delivery service, return receipt requested;(3) hand delivered to the appropriate offices; or(4) any other method approved by the agency.(c) The date of filing of any document required to be filed with the agency under this subchapter shall be the receipt date stamped on the document by the agency.(d) The date of filing documents with the chief clerk or the commission on protested claims for payment shall be controlled by this subchapter and the procedural rules of the commission.</content><note type="source"><p>Source Note: The provisions of this §334.305 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective March 4, 1992, 17 TexReg 1385; amended to be effective June 7, 1993, 18 TexReg 3293; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.306"><num value="334.306">§334.306</num><heading>Form and Contents of Application</heading><content>(a) An application for reimbursement filed in accordance with this subchapter shall be on a form approved or provided by the agency.(b) The application must contain the following:(1) the name, address, telephone number, and signature of all of the following: the applicant, the application preparer, and the prime contractor and/or prime corrective action specialist required by §334.302 of this title (relating to General Conditions and Limitations Regarding Reimbursement; Assignments), unless otherwise approved by the agency;(2) the name, address, and telephone number of:(A) each owner and operator of the tanks;(B) the facility owner; and(C) the owner of the land on which the tank system is located;(3) the address and zip code of the facility where the release occurred;(4) the location of the facility at which the corrective action was performed or is to be performed, identified with sufficient clarity and detail to enable a person unfamiliar with the site to locate it and reach it by automobile;(5) any information required by the agency under §334.307 of this title (relating to Technical Information Required), if not already submitted to the agency;(6) legible copies of contractor and subcontractor invoices and any other documents required by the executive director to provide a description of:(A) any work performed;(B) who performed the work;(C) where the work was performed;(D) the dates the work was performed;(E) the unit cost, using the same breakdown of individual activities as are listed in this subchapter and Subchapter M of this chapter (relating to Reimbursable Cost Specifications for the Petroleum Storage Tank Reimbursement Program); and(F) the total amount paid, or ensured to be paid through the posting of a payment bond;(7) certification on the designated agency form, either that the amounts described in §334.309(c) of this title (relating to Reimbursable Costs) have been paid in full by the claimant, or have been ensured to be paid in full through the posting of a payment bond in the amount not yet paid in full by the claimant. The certification must include:(A) for reimbursement(s) to a claimant who is an eligible owner or operator, or an insurer under §334.302(k)(1)(B) of this title, a certification as to payment of the claimant's prime contractor; or(B) for reimbursement(s) to a claimant who is an assignee contractor described in §334.302(k)(1)(A) of this title, a certification as to payment of the claimant's subcontractors;(8) if the agency is being requested to honor a reimbursement assignment under §334.302(i) - (k) of this title, the application must include a complete assignment document as described in §334.302(i) - (k) of this title;(9) if any combination of the owner or operator or the persons performing corrective action activities at, or for, the leaking petroleum storage tank site in question are related parties as the term is defined in §334.322 of this title (relating to Subchapter H Definitions), the application must contain a full description of all such relationships including applicable documentation; and(10) any other information which the agency may reasonably require.(c) An application may be filed at the following times:(1) after the completion of a phase or pre-approved activity; or(2) at points during the corrective action process agreed to by the agency and the applicant.(d) The agency may require the applicant to supplement information already submitted or return the application if the information is not sufficient to review the application.(e) The applicant must update his application with any information not yet submitted to the agency before processing or payment of claims at any stage begins.(f) A subcontractor may submit information to the agency to assert a claim that the subcontractor has performed pre-approved work and has not been fully paid for the work. To be considered for direct reimbursement by the commission under this subchapter, each of the following requirements must be met:(1) the subcontractor requesting to be directly reimbursed by the agency shall have performed work for a person eligible for reimbursement in accordance with §334.310 of this title (relating to Requirements for Eligibility) and performed such work as a subcontractor to a prime corrective action specialist retained by the eligible owner or operator;(2) a Fund Payment Report that contains the charges for which the subcontractor has not been paid has been issued in accordance with §334.314 of this title (relating to Fund Payment Report);(3) the prime corrective action specialist has failed to pay the subcontractor, due to insolvency subject to the limitations of 11 United States Code, §365(e)(1), the amount reflected on the Fund Payment Report;(4) the commission has not paid for the work performed in the Fund Payment Report or the commission has successfully recovered the money paid for the work performed in the Fund Payment Report in accordance with §334.318 of this title (relating to Recovery of Costs) and Texas Water Code, §26.355; and(5) between November 18, 2004, and March 18, 2005, inclusive, the subcontractor has filed the following:(A) written notice to the agency of the amounts owed on each specific Fund Payment Report that the prime corrective action specialist has failed to pay; and(B) an affidavit by the subcontractor stating that the prime corrective action specialist has failed to pay the amount being requested by the subcontractor.(g) For purposes of this subchapter, the following are the phases of corrective action:(1) initial abatement measures and emergency actions phase;(2) preliminary site assessment phase;(3) comprehensive site assessment phase;(4) risk assessment and remediation planning phase;(5) remediation phase;(6) post-remediation monitoring phase; and(7) site closure.</content><note type="source"><p>Source Note: The provisions of this §334.306 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective March 4, 1992, 17 TexReg 1385; amended to be effective March 25, 1993, 18 TexReg 1687; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532; amended to be effective November 9, 2006, 31 TexReg 9034.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.307"><num value="334.307">§334.307</num><heading>Technical Information Required</heading><content>(a) The following information may be required by the agency as part of any application for reimbursement under this subchapter:(1) any information which the agency may require under Subchapter D of this chapter (relating to Release Reporting and Corrective Action);(2) a detailed account of what corrective action has been taken, why specific actions were taken, when, by whom, and with what results;(3) an estimate of what other corrective action measures may be required to remediate the facility and the estimated time required to complete such measures.(b) The agency may require the applicant to supplement information already submitted, or may return the application if the information is not sufficient to allow for proper application review.</content><note type="source"><p>Source Note: The provisions of this §334.307 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.308"><num value="334.308">§334.308</num><heading>Allowable Costs and Restrictions on Allowable Costs</heading><content>(a) Only those costs that are allowable costs under the terms of this section shall be subject to reimbursement under this subchapter.(b) Allowable costs are those costs and expenses directly required for the performance of necessary corrective action in accordance with commission rules.(c) Unless otherwise specified in subsection (g) of this section, allowable costs shall include, but not be limited to, the following:(1) abatement of impacts and immediate threats of impact to human health, safety, and the environment, including measures necessary to prevent further releases and to identify and mitigate all fire, explosion, and human exposure hazards associated with a release;(2) removal of phase-separated product;(3) temporary provision of an alternate water supply. The agency shall determine the length of time during which the cost of water supply may be allowable, the amounts of water which may be allowable, the uses for which water supply may be allowable, and other conditions of approval;(4) collection and analysis of surface and subsurface soil and water, phase-separated product, and vapor samples;(5) emplacement of monitor wells;(6) removal, storage, treatment, recycling, transport, and disposal of phase-separated product, sludges, vapors, contaminated soils, contaminated water, and other wastes and contaminated articles, in accordance with applicable laws;(7) removal, disposal, and replacement (including transport) of soils and pavement where removal is necessary to the performance of corrective action;(8) tank system integrity testing in accordance with the methods prescribed by this chapter when such testing:(A) is necessary to the performance of corrective action;(B) has been specifically requested by the agency staff on or after May 31, 1989; or(C) has been specifically ordered by the commission on or after May 31, 1989;(9) identification and testing of affected or potentially affected drinking water sources;(10) design of plans for site assessment and remediation;(11) acquisition, installation, startup, operation, and maintenance of remediation systems, including monitoring;(12) removal, transport, and disposal of the piping, pumps, and dispensers associated with the underground or aboveground tank when necessary for performance of corrective action, and when removed after October 1, 1992, and before June 6, 1993;(13) tank removal (as defined in this subchapter), transport, and disposal of the components of the underground or aboveground tank, including compliance with applicable requirements under Subchapter D of this chapter (relating to Release Reporting and Corrective Action), in accordance with applicable law when necessary for the performance of corrective action and performed before March 12, 1993;(14) a portion of costs, as specified in this section, of tank removals, transport, and disposal of the components of the underground or aboveground tank, including compliance with applicable requirements under Subchapter D of this chapter, when necessary for the performance of corrective action and performed on or after March 12, 1993. Reimbursement under this paragraph performed on or after March 12, 1993, shall be based on the volume of the tank and shall have a maximum reimbursable limit of $8,000 per leaking petroleum storage tank site. For underground storage tanks (USTs) having a volume of 5,000 gallons or less, the portion of reimbursable costs under this paragraph for each such tank is $1,000. For USTs having a volume of greater than 5,000 gallons, the portion of reimbursable costs under this paragraph for each such tank is $2,000;(15) permanent abandonment in-place, of a tank system, including compliance with applicable requirements under Subchapter D of this chapter, where abandonment in-place rather than tank system removal is deemed by the agency to be necessary to avoid destruction of substantial or significant surface improvements and conducted before June 6, 1993;(16) temporary relocation of utility structures when necessary to the performance of corrective action;(17) preparation of technical reports required in accordance with the requirements of Subchapter D of this chapter;(18) the reasonable, as determined by the agency and as limited by the reimbursable cost specifications, value of necessary time to obtain access to property outside of the facility boundaries where such access is necessary for the performance of corrective action;(19) the reasonable value, as determined by the agency and as limited by the reimbursable cost specifications, of necessary time spent by the applicant in planning and administering the applicant's corrective action plan;(20) performance of any corrective action measure which is specifically required by an order of the commission or a written request by agency staff on or after September 1, 1987;(21) state and federal sales taxes applicable to items which are otherwise allowable costs under this section; and(22) any other costs determined by the agency to be allowable in accordance with the provisions of this subchapter.(d) The costs of abatement or corrective action taken in response to a release of hydraulic fluid from a hydraulic lift system are allowable costs in situations where:(1) the hydraulic fluid was released from a hydraulic lift system located at a vehicle service and fueling facility where the hydraulic lift system was used in conjunction with and contemporaneously with a vehicle service and fueling facility; and(2) upon request by the agency, the eligible owner or operator demonstrates that a release from the hydraulic lift system is not mixed with any substance except for petroleum products from a petroleum storage tank system, spent oil from a spent oil tank located at a vehicle service and fueling facility (or another substance contained in such spent oil tank), or another substance that was contained in the hydraulic lift system owned or operated by the person claiming reimbursement.(e) The costs of abatement or corrective action taken in response to a release of spent oil from a spent oil tank are allowable costs under the following:(1) the spent oil was released from a spent oil tank located at a vehicle service and fueling facility where the spent oil tank was used in conjunction with and contemporaneously with a vehicle service and fueling facility; and(2) upon request by the agency, the eligible owner or operator demonstrates that a release of spent oil is not mixed with any substance except for petroleum products from a petroleum storage tank system, or hydraulic fluid (or another substance that was contained in the hydraulic lift system) or another substance that was contained in the spent oil tank owned or operated by the person claiming reimbursement.(f) The costs of excavation, disposal, or treatment of backfill material generated during the tank removal process and any additional sampling and reporting required under Subchapter D of this chapter required because of the disposal or treatment of the backfill material are allowable costs where the concentration of constituents of any substance listed in §334.301(a) of this title (relating to Applicability of this Subchapter) in the backfill material exceed a standard for which the agency will permit the backfill material to be returned to the original tank pit excavation and a prior written directive is obtained from the agency prior to implementation.(g) The following types of costs are those which will not be considered allowable costs under this subchapter:(1) the cost of replacement, repair, and maintenance of affected tanks and associated piping;(2) the cost of upgrading existing affected tanks and associated piping, including, but not limited to, the costs of corrosion protection, release detection, spill and overfill protection, or any other upgrading required by Subchapter C of this chapter (relating to Technical Standards);(3) removal, transport, and disposal of the piping, pumps, and dispensers associated with the underground or aboveground tank when removed prior to October 1, 1992, or on or after March 12, 1993;(4) tank removal (as defined in this subchapter) and transport, and disposal of the components of the underground or aboveground tank, unless otherwise specified in subsection (c)(13) and (14) of this section;(5) permanent abandonment in-place of a tank system, where abandonment in-place rather than tank system removal is deemed by the agency to be necessary to avoid destruction of substantial or significant surface improvements when conducted on or after March 12, 1993;(6) loss of income or profits, including without limitation, the loss of business income arising out of the review, processing, or payment of an application or request for assistance under this subchapter;(7) decreased property values;(8) bodily injury or property damage;(9) attorney's fees;(10) any costs associated with preparing, filing, and prosecuting an application for reimbursement or assistance under this subchapter;(11) the costs of making improvements to the facility beyond those that are required for corrective action;(12) costs associated with corrective action performed for any purpose where no release of petroleum product above action levels is discovered, except when the corrective action has been ordered by the commission;(13) costs of compiling and storing records relating to costs of corrective action;(14) costs of corrective action taken in response to the release of a substance which is not a petroleum product as defined in §334.322 of this title (relating to Subchapter H Definitions);(15) costs of tank integrity testing when it is not specifically required by this chapter, requested by the agency staff, or ordered by the commission;(16) costs of any corrective action incurred by an owner or operator on or after the date that the executive director commences corrective action at the owner's or the operator's facility under §334.84 of this title (relating to Corrective Action by the Agency), unless authorized in writing by the agency;(17) costs incurred as a result of a release from a storage tank system owned, operated, or maintained by a common-carrier railroad;(18) any activities, including those required by this chapter, which are not conducted in compliance with applicable state and federal environmental laws or laws relating to the transport and disposal of waste;(19) interest on monies;(20) excluding releases identified under subsections (d) and (e) of this section, the cost of abatement or corrective action taken in response to a release of:(A) a regulated substance, which is not a petroleum product; and(B) a release of a petroleum product that has commingled with a regulated substance, that is not a petroleum product;(21) the costs of the installation or construction of on-site equipment, structures, or systems used in the extraction or management of wastes, except soil excavation, landfill disposal, well sampling, or monitoring, unless:(A) the plans and specification for such equipment, structures, or systems are properly sealed by a licensed professional engineer; and(B) the construction and installation of such equipment, structures, or systems are performed under the supervision of a licensed professional engineer;(22) work not pre-approved under §334.310(f) of this title (relating to Requirements for Eligibility) or pre-approved work performed incorrectly and rejected by the agency; or(23) costs attributable to fraud.</content><note type="source"><p>Source Note: The provisions of this §334.308 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective March 4, 1992, 17 TexReg 1385; amended to be effective March 25, 1993, 18 TexReg 1687; amended to be effective June 7, 1993, 18 TexReg 3293; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.309"><num value="334.309">§334.309</num><heading>Reimbursable Costs</heading><content>(a) The agency will utilize the reimbursable cost specifications, as outlined in §334.560 of this title (relating to Reimbursable Cost Specifications), to evaluate the reimbursability of claims related to the cleanup of leaking petroleum storage tank sites.(b) No cost shall be reimbursed unless it is also an allowable cost under §334.308 of this title (relating to Allowable Costs and Restrictions on Allowable Costs).(c) For reimbursements appropriate to be made under this subchapter, the amount reimbursed will be the lower of the invoiced amount or the line-item amount (adjusted for scope of work) for that activity specified in Subchapter M of this chapter (relating to Reimbursable Cost Specifications for the Petroleum Storage Tank Reimbursement Program). An exception to this subsection is made for items under Subchapter M of this chapter requiring bidding, where reimbursements requests are processed as described in Subchapter M of this chapter. For those activities that require pre-approval under §334.310(f) of this title (relating to Requirements for Eligibility), the agency may also, at its discretion, limit the amount reimbursed to the pre-approved amount.(d) A cost is not reimbursable if a contractor fails to pay its subcontractors for subcontracted work or if there is a failure to perform the work claimed as technically required. The audit of reimbursable costs is addressed in §§334.530 - 334.535 of this title (relating to Purpose and Applicability of the Subchapter, Cooperation with Audit; False Submittals, Payments, Audits, Notice of Overpayment, and Objections to the Notice of Overpayment and Formal Petition for Hearing).</content><note type="source"><p>Source Note: The provisions of this 334.309 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective June 7, 1993, 18 TexReg 3293; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective October 22, 1997, 22 TexReg 10324; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.310"><num value="334.310">§334.310</num><heading>Requirements for Eligibility</heading><content>(a) For a person to be an eligible owner or operator under this subchapter, each of the following requirements must be met.(1) The person must meet the other requirements of this chapter (including, but not limited to, the restrictions under §334.302 of this title (relating to General Conditions and Limitations Regarding Reimbursement; Assignments)) and must be:(A) an owner or an operator of a petroleum storage tank, hydraulic lift system, or a spent oil tank which is subject to the requirements of Subchapter D of this chapter (relating to Release Reporting and Corrective Action);(B) any past owner or operator of a tank described in subparagraph (A) of this paragraph who performed corrective action on or after September 1, 1987 in response to a release of petroleum products from such tank;(C) an owner of land who can clearly prove that the land has been contaminated by a release of petroleum products from a tank described in subparagraph (A) of this paragraph which is or was located on said land and who performed corrective action in response to a release of petroleum products from such tank;(D) a lender who has a bona fide security or lienhold interest in or mortgage lien on any property where a tank described in subparagraph (A) of this paragraph is or was located and who performed corrective action in response to a release of petroleum products from such tank;(E) a lender who forecloses on or receives an assignment or deed in lieu of foreclosure and becomes the owner of property contaminated by a release of petroleum products from a tank described in subparagraph (A) of this paragraph, and who performed corrective action in response to a release of petroleum products from such tank; or(F) an adjacent landowner who can clearly prove that the land has been contaminated by a release of petroleum products from a tank described in subparagraph (A) of this paragraph which is not located on said land, and who performed corrective action in response to a release of petroleum products from such tank, and either:(i) performed emergency abatement actions by completing all the following:(I) notifying the agency within 24 hours of discovery that the emergency condition exists;(II) notifying the local fire marshall (or state fire marshall if no local authority is available) within 24 hours;(III) taking actions necessary to protect against imminent danger to human health and safety by mitigating fire, explosion, and vapor hazards, by removing phase-separated product from structures, basements, sumps, etc., or performing other actions as deemed necessary by the executive director. Restoration of site to preexisting conditions, cost of relocating utility structures, site assessment, and remediation are not considered part of emergency abatement activities. Any expenses incurred after 72 hours from commencement of the action must be approved by the agency in writing; and(IV) having the release and threat ultimately confirmed by the agency; or(ii) committed to undertake the entire cleanup of the leak and contamination from the tank on his property and on all other property by:(I) obtaining prior approval in writing from the agency;(II) performing a site assessment to define the extent of the vertical and horizontal contamination at the time of the agreement;(III) entering into a legal agreement with the owner of the tank whereby the adjacent landowner agrees to indemnify and hold harmless the owner, operator, and other affected landowners for any corrective action or third-party liability effective from the date of the agreement; and(IV) performing all corrective action in conformance with this chapter, and all other applicable rules and regulations. The applicable deductible for reimbursement under §334.312 of this title (relating to Owner/Operator Contribution) for cleanups undertaken by adjacent landowners under this subsection shall be the same as that applicable to the registered owner of the tank.(2) An underground and aboveground storage tank installed prior to December 1, 1995, which is required to be registered under §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems) or §334.127 of this title (relating to Registration for Aboveground Storage Tanks (ASTs)) must be registered with the agency on or before December 31, 1995, or the owner or operator is not eligible to receive reimbursement for that tank, except for:(A) an owner or operator of a registered facility who discovers an unregistered tank while removing, upgrading, or replacing a tank or while performing a site assessment;(B) a state or local governmental agency that discovers an unregistered storage tank in a right-of-way during construction; or(C) a property owner who reasonably could not have known that a tank was located on the property because a title search or the previous use of the property does not indicate a tank on the property.(3) The owner or operator of an underground and aboveground storage tank installed on or after December 1, 1995, must be registered with the agency under §334.7 or §334.127 of this title no later than the 30th day after the date the installation is completed to be eligible for reimbursement for such tank.(4) All annual facility fees due since September 1, 1987, under §334.21 of this title (relating to Fee Assessment), and since September 1, 1989, under §334.128 of this title (relating to Annual Facility Fees for Aboveground Storage Tanks (ASTs)) for all underground and aboveground storage tanks which they own or operate must be paid to the agency, except for those tanks which the owner or operator, upon reasonable inquiry, could not have known existed. All fees which come due up until the time that reimbursement funds are released to the claimant must be paid.(5) Any release on which a claim under this subchapter is based must be discovered and reported to the agency on or before December 22, 1998, and must subsequently be confirmed by the agency.(b) If an otherwise eligible owner or operator misses a deadline under §334.71(b) of this title (relating to Applicability and Deadlines), and that missed deadline is the fault of that person or his agent or contractor, then that person shall no longer be eligible for reimbursement for those or future corrective action expenses at that site.(c) Agency eligibility determinations must be done in accordance with the standards of Texas Water Code, §26.3571.(d) Compliance with Texas Water Code, Chapter 26, Subchapter I, for the purposes of determining eligibility under this subchapter and Texas Water Code, §26.3571, does not mean that an eligible owner or operator has not violated a statute or a rule or order of the commission. Eligibility of an owner or operator under this subchapter does not preclude the issuance of an enforcement order or the assessment of administrative penalties against an eligible owner or operator.(e) In no case will reimbursement be made under subsection (a)(1)(F) of this section for duplication of assessment and remediation activities involving the same contamination plume. There will be no reimbursement for adjacent landowner cleanup allowed under subsection (a)(1)(F) of this section for activities at a site which occur after the site has been designated for state lead cleanup under §334.84 of this title (relating to Corrective Action by the Agency).(f) Unless otherwise approved by the executive director and except as provided in §334.301(h)(2) and §334.313(d) of this title (relating to Applicability of this Subchapter and Review of Application), all corrective action activities, including activities proposed in corrective action plans, must be approved in writing by the executive director prior to implementation. Pre-approval of proposed corrective action activities and costs does not create an entitlement to reimbursement for any corrective action task, at the amount pre-approved or a different amount. For reimbursement of emergency, initial abatement measures and phase-separated product recovery as required by §334.77 of this title (relating to Initial Abatement Measures and Site Check), approval by the executive director is not required prior to implementation, unless the emergency action extends beyond 72 hours, then written approval will be required for all activities.</content><note type="source"><p>Source Note: The provisions of this §334.310 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective March 4, 1992, 17 TexReg 1385; amended to be effective March 25, 1993, 18 TexReg 1687; amended to be effective June 7, 1993, 18 TexReg 3293; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective October 22, 1997, 22 TexReg 10324; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective November 18, 2004, 29 TexReg 10532; amended to be effective November 9, 2006, 31 TexReg 9034.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.311"><num value="334.311">§334.311</num><heading>Determining the Number of Occurrences</heading><content>(a) All releases at a facility which are discovered before or during the following phase of corrective action will be considered part of one release, subject to subsection (d) of this section:(1) the initial abatement measures and emergency action phase; and(2) preliminary site assessment phase.(b) Releases discovered at a facility after the preliminary site assessment and remediation planning phase will be considered as separate occurrences from the releases detected earlier at the facility, subject to subsection (d) of this section.(c) Regardless of when discovered, if the contamination within a facility is located in two or more areas and remediation of any area could be performed under separate and distinct corrective action plans, each distinct area within the facility will be considered as a separate occurrence, subject to subsection (d) of this section.(d) In any situation, releases at a facility may be considered either as single or separate occurrences when doing either would:(1) make the most efficient use of the petroleum storage tank remediation fund; or(2) provide the most effective protection to the environment or best provide for public health and safety.</content><note type="source"><p>Source Note: The provisions of this §334.311 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective November 8, 1995, 20 TexReg 8800.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.312"><num value="334.312">§334.312</num><heading>Owner/Operator Contribution</heading><content>(a) The agency shall deduct from any amount claimed for reimbursement an amount of allowable costs equal to the greater amount applicable for the owner/operator contribution as described in this section.(b) The owner/operator contribution for each occurrence shall be as follows:(1) for a person who owns or operates a total of 1,000 or more single petroleum storage tanks, $10,000;(2) for a person who owns or operates a total of 100 - 999 petroleum storage tanks, $5,000;(3) for a person who owns or operates a total of 13 - 99 petroleum storage tanks, $2,500; and(4) for a person who owns or operates a total of less than 13 petroleum storage tanks, $1,000.(c) If an owner or operator does not submit a site assessment in accordance with §334.78 of this title (relating to Site Assessment) before December 23, 1996, the owner/operator contribution for each occurrence shall be as follows:(1) for a person who owns or operates a total of 1,000 or more single petroleum storage tanks, $20,000;(2) for a person who owns or operates a total of 100 - 999 petroleum storage tanks, $10,000;(3) for a person who owns or operates a total of 13 - 99 petroleum storage tanks, $5,000; and(4) for a person who owns or operates a total of less than 13 petroleum storage tanks, $2,000.(d) If an owner or operator's corrective action plan as required by §334.81 of this title (relating to Corrective Action Plan) is not approved by the agency before June 23, 1998, the owner/operator contribution for each occurrence shall be as follows:(1) for a person who owns or operates a total of 1,000 or more single petroleum storage tanks, $40,000;(2) for a person who owns or operates a total of 100 - 999 petroleum storage tanks, $20,000;(3) for a person who owns or operates a total of 13 - 99 petroleum storage tanks, $10,000; and(4) for a person who owns or operates a total of less than 13 petroleum storage tanks, $4,000.(e) If an owner or operator's corrective action plan as required by §334.81 of this title is not approved by the agency before December 23, 1999, and if the owner or operator has not met the goals specified in the plan to be met by December 23, 1999, the owner/operator contribution for each occurrence shall be as follows:(1) for a person who owns or operates a total of 1,000 or more single petroleum storage tanks, $80,000;(2) for a person who owns or operates a total of 100 - 999 petroleum storage tanks, $40,000;(3) for a person who owns or operates a total of 13 - 99 petroleum storage tanks, $20,000; and(4) for a person who owns or operates a total of less than 13 petroleum storage tanks, $8,000.(f) An owner or operator of a site for which a closure letter has been issued on or after September 1, 1995, the owner/operator contribution for each subsequent release occurrence shall be $50,000.(g) It shall be presumed for purposes of this section that a person owns:(1) the number of tanks for which he is registered as the owner in the records of the agency on the date that an administratively complete application is filed with the agency; or(2) the number of tanks actually owned by the eligible owner or operator on the date that an administratively complete application is filed with the agency, whichever is greater.</content><note type="source"><p>Source Note: The provisions of this §334.312 adopted to be effective March 4, 1992, 17 TexReg 1385; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.313"><num value="334.313">§334.313</num><heading>Review of Application</heading><content>(a) An application for reimbursement or supplemented application filed under this subchapter shall be subject to review by the agency:(1) to determine if the information which is required to be submitted under this subchapter has been filed with the agency, utilizing the following procedure:(A) an application submitted will be reviewed by the staff for completeness. To be considered complete, an application must contain the following information:(i) a completed application form, which has been provided or approved by the agency, containing the information required under §334.306(a) and (b)(1) - (4) of this title (relating to Form and Contents of Application);(ii) legible copies as required under §334.306(b)(6) of this title and by certification of payment as required under §334.306(b)(7) of this title;(iii) copies of pre-approval documentation and technical information requested in the application form, provided or approved by the agency, under §334.306(b)(5) of this title and §334.307(a) of this title (relating to Technical Information Required); and(iv) an Application Checklist, provided with the application form, verifying that the applicant and application preparer have reviewed the application for completeness;(B) if it is determined that an otherwise complete application contains any costs which required prior agency approval prior to implementation as required by §334.310(f) of this title (relating to Requirements for Eligibility), and such prior approval was not obtained, the applicant will be notified in a fund payment report that those costs will not be forwarded for further review until such time as the agency completes reviews of applications with pre-approved costs as allowed under subsection (d) of this section;(C) if it has been determined that an otherwise complete application contains costs for a corrective action activity which the agency determines to have been performed improperly, the applicant will be notified in a fund payment report that those costs are denied as not allowable under §334.308(g)(22) of this title (relating to Allowable Costs and Restrictions on Allowable Costs); and(D) the received date of the application is considered to be the date which the complete application was received by the agency, or the date which the required additional information was received by the agency; and(2) to examine the substance of the application, including, without limitation:(A) the cost effectiveness and fiscal merits of the corrective action taken at the facility; and(B) the technical merits of the corrective action taken at the facility.(b) If, during review, the agency determines that additional information is required to assess the validity of the claim under Subchapters H and M of this chapter (relating to Reimbursement Program; and Reimbursable Cost Specifications for the Petroleum Storage Tank Reimbursement Program), it may either:(1) require the applicant to provide such additional information. Further review of the application will be postponed until such information is received by the agency. The received date for the complete claim will be considered the date on which the agency received such additional required information; or(2) issue the fund payment report, but withhold payment of those portions of the claim for which additional information has been requested.(c) An application for reimbursement or supplemental application filed under this subchapter shall be subject to audit by the agency.(d) The executive director may postpone considering, processing, or paying a claim for reimbursement for corrective action work begun without prior commission approval after September 1, 1993, that is filed with the commission before January 1, 2005.</content><note type="source"><p>Source Note: The provisions of this §334.313 adopted to be effective March 4, 1992, 17 TexReg 1385; amended to be effective March 25, 1993, 18 TexReg 1687; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442 ; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective November 18, 2004, 29 TexReg 10532; amended to be effective November 9, 2006, 31 TexReg 9034.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.314"><num value="334.314">§334.314</num><heading>Fund Payment Report</heading><content>(a) Upon completion of the review of an application, the agency shall prepare a fund payment report, indicating which of the applicant's claims the executive director believes should be reimbursed and which claims should not be reimbursed. If the executive director finds that any claim should not be paid or not paid to the full amount claimed, he shall briefly state the reasons in his report. The executive director shall submit a copy of his report to the applicant.(b) The applicant shall review the fund payment report and shall file a written response with the agency within 60 days of the date on the report. The response shall be on a form provided or approved by the agency. The applicant may consent or object to all or any part of the report. If the agency has not received a response from the applicant within 60 days from the date of the report, the following shall occur:(1) all claims approved for reimbursement in the fund payment report shall be eligible for payment;(2) any claim addressed in the fund payment report shall be deemed satisfied in full; and(3) the applicant will have waived his right to object to any item addressed in the fund payment report.(c) Any item recommended for payment in the fund payment report to which the applicant objects shall not be eligible for payment until the agency and the applicant agree on an amount for payment or until the commission orders payment in a prescribed amount, whichever occurs first.(d) Any item recommended for payment in the fund payment report to which the applicant consents by filing a timely response to the fund payment report shall be eligible for reimbursement when the agency receives the applicant's consent form. The consent of the applicant to any item recommended for payment shall mean that any claim covered by that item is considered satisfied in full.(e) The agency may in its discretion pay claims which it has approved for payment by sending payment with the fund payment report.(f) In cases where there are two or more applicants filing claims for one occurrence, the executive director may make an equitable apportionment of the owner/operator contribution described in §334.312 of this title (relating to Owner/Operator Contribution).</content><note type="source"><p>Source Note: The provisions of this §334.314 adopted to be effective March 4, 1992, 17 TexReg 1385; amended to be effective March 25, 1993, 18 TexReg 1687; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.315"><num value="334.315">§334.315</num><heading>Protest of Fund Payment Report</heading><content>(a) If the applicant disagrees with any conclusion in the fund payment report, the applicant may file a protest with the executive director within 60 days of the date on the fund payment report.(b) The protest must be in writing and signed by the applicant. It must be on a form prescribed or approved by the agency. It must contain the following:(1) the name and address of the applicant;(2) the address of the facility in question and the Texas Commission on Environmental Quality facility number, if any;(3) a copy of the fund payment report which is the subject of the protest, or the application number which appears on the fund payment report; and(4) a clear statement of each item which the applicant disputes on the fund payment report and any other documentation necessary to support the protest.(c) The protest shall be filed with the executive director by sending or delivering it to the office indicated in the fund payment report materials.(d) The applicant and the staff of the executive director shall attempt to resolve informally any disputes over the fund payment report. If no resolution is reached by the staff and the applicant, the applicant may file a petition requesting the commission to grant relief. Within 60 days of receipt of written notification from the agency that informal negotiations have ceased and the final informal fund protest meeting has been held, the applicant shall file a petition as specified in §334.316 of this title (relating to Formal Petition).</content><note type="source"><p>Source Note: The provisions of this §334.315 adopted to be effective March 4, 1992, 17 TexReg 1385; amended to be effective June 7, 1993, 18 TexReg 3293; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.316"><num value="334.316">§334.316</num><heading>Formal Petition</heading><content>(a) The applicant shall file the petition with the chief clerk in the manner prescribed generally by this title for filing petitions with the commission and he shall serve a copy of the petition on the executive director.(b) The petition shall set forth the relief which the applicant requests and shall contain the same information required for the protest, as prescribed in of §334.315(b) of this title (relating to Protest of Fund Payment Report).</content><note type="source"><p>Source Note: The provisions of this §334.316 adopted to be effective March 4, 1992, 17 TexReg 1385; amended to be effective November 8, 1995, 20 TexReg 8800.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.317"><num value="334.317">§334.317</num><heading>Hearing by the Commission</heading><content>Following receipt of a petition, the commission shall conduct a hearing on the petition. The proceedings shall be governed by the rules of the commission.</content><note type="source"><p>Source Note: The provisions of this §334.317 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective June 7, 1993, 18 TexReg 3293; amended to be effective November 8, 1995, 20 TexReg 8800.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.318"><num value="334.318">§334.318</num><heading>Recovery of Costs</heading><content>The agency may initiate proceedings against any owner or operator of a petroleum storage tank for recovery of costs, as provided by the Texas Water Code, §26.355.</content><note type="source"><p>Source Note: The provisions of this §334.318 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.319"><num value="334.319">§334.319</num><heading>Administrative Penalties and Other Actions</heading><content>Nothing in this subchapter precludes the commission from issuing orders, assessing administrative penalties, or taking any other action permitted by law against any person for violation of any statute, any rule of the commission or any order of the commission.</content><note type="source"><p>Source Note: The provisions of this §334.319 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective March 4, 1992, 17 TexReg 1385; amended to be effective March 25, 1993, 18 TexReg 1687; amended to be effective November 8, 1995, 20 TexReg 8800.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.320"><num value="334.320">§334.320</num><heading>Responsibilities of Owners, Operators, and Others</heading><content>(a) Nothing in this subchapter changes the responsibilities of an owner or operator of an underground or aboveground storage tank to respond to a release of regulated substances or to comply with any other requirements of statutes or the rules or orders of the commission.(b) The owner and operator are obligated to pursue whatever actions are necessary to minimize any immediate impacts of threats to human health and safety and the environment and to stabilize the conditions caused by the release. When financially unable to pursue immediate abatement actions, the owner or operator shall notify the agency immediately.(c) No person shall knowingly submit false information to the agency as part of any materials required to be submitted under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §334.320 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.321"><num value="334.321">§334.321</num><heading>Corrective Action by the Agency</heading><content>No costs of corrective action incurred by an owner or operator at a facility on or after the date that the agency commences corrective action at the owner's or the operator's facility are allowable for reimbursement under this subchapter, unless authorized and the estimated costs preapproved in writing by the agency in accordance with this subchapter.</content><note type="source"><p>Source Note: The provisions of this §334.321 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective March 25, 1993, 18 TexReg 1687; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scH/s334.322"><num value="334.322">§334.322</num><heading>Subchapter H Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Adjacent landowner--A person who owns legal title to land which is within reasonably close proximity to property where a regulated underground storage tank (UST) or aboveground storage tank is located whether or not the land is contiguous to the property containing the tank.(2) Application preparer--Any person responsible for preparing the application for reimbursement.(3) Commingled--See definition in §334.2 of this title (relating to Definitions).(4) Confirmed--In the context of a release being confirmed by the agency under this subchapter, means that the executive director has determined that sufficient evidence exists to prove that a release of petroleum products has occurred from a petroleum storage tank subject to regulation under this chapter.(5) Eligible aboveground storage tank--A non-vehicular device with a capacity of more than 1,100 gallons, and all connecting piping both above and below ground, that is made of non-earthen materials; located on or above the surface of the ground or on or above the surface of the floor of a structure below ground, such as a mineworking basement, or vault; and designed to contain an accumulation of petroleum.(6) Eligible operator--Any person in control of or having the responsibility for the daily operation of a petroleum storage tank who meets the eligibility requirements prescribed in §334.310 of this title (relating to Requirements for Eligibility).(7) Eligible owner--Any person who meets the eligibility requirements prescribed in §334.310 of this title (relating to Requirements for Eligibility) and who held or currently holds legal possession or ownership of an interest in a petroleum storage tank. For the purposes of this subchapter, if the actual ownership of the petroleum storage tank is uncertain, unknown, or in dispute, the fee simple owner of the surface estate of the tract on which the petroleum storage tank is located is considered the petroleum storage tank owner unless that person can demonstrate by appropriate documentation, including a deed reservation, invoice, bill of sale, or by other legally acceptable means that the petroleum storage tank is owned by another person. A person who has registered as an owner of a petroleum storage tank with the commission under §334.7 of this title (relating to Registration for Underground Storage Tanks (USTs) and UST Systems) (or a preceding rule section concerning tank registration) after September 1, 1987, shall be considered the petroleum storage tank owner until such time as documentation demonstrates to the executive director's satisfaction that the legal interest in the petroleum storage tank was transfered to a different person subsequent to the date of the tank registration. This definition is subject to the limitations found in Texas Water Code, §26.3514, Limits on Liability of Lender; §26.3515, Limits on Liability of Corporate Fiduciary; and §25.3516, Limits on Liability of Taxing Unit.(8) Emergency--Any existing or potential fire, explosion, or vapor hazards which pose an imminent threat to human health and safety, or any imminent threat at the point of actual use to drinking water supplies actually being used.(9) Emergency abatement--Taking mitigating actions necessary in an emergency to protect against imminent danger to human health and safety by removing phase-separated product from structures, basements, sumps, etc., or performing other actions as deemed necessary by the agency. Restoration of site to preexisting conditions, cost of relocating utility structures, site assessment, and remediation are not considered part of emergency abatement activities.(10) Initial abatement measures--The mitigation of all existing or potential fire, explosion, or vapor hazards, including the removal of phase-separated product, to provide adequate protection of human health, safety, and the environment in emergency situations or other situations where emergency actions must be implemented to prevent further impacts to the environment. Restoration of site to preexisting conditions, cost of relocating utility structures, site assessment, and remediation are not considered part of initial abatement measures.(11) Petroleum product--See definition in §334.2 of this title (relating to Definitions).(12) Petroleum storage tank--See definition in §334.2 of this title (relating to Definitions).(13) Phase-separated product--See Free-product as defined in §334.2 (relating to Definitions) of this title.(14) Prime contractor--Any natural person, firm, or any entity responsible for the contracting of any corrective action services.(15) Prime corrective action specialist--A natural person, consulting firm, or any entity engaging in corrective action services, or acting as coordinator of others engaged in corrective action services.(16) Related parties--An eligible owner, an eligible operator, a prime corrective action specialist, or a subcontractor (collectively "parties" or individually "party" in this definition) are related parties to the extent that any one of them holds any legal or beneficial ownership in another party, or is owned in whole or in part, legally or beneficially, by any person or entity who also owns all or part of the legal or beneficial interest in another party, or is party to an exclusive dealing agreement with another party regarding the performance of corrective action at leaking petroleum storage tank sites in Texas. Ownership by one member of a family shall be attributed to all those within the second degree by consanguinity or affinity. In addition, any of the parties listed in this paragraph are related parties if they share common employees, common offices, or centralized accounting; if they operate under a common business name; or if one party pays the wages of another party's employees, makes undocumented transfers of funds to the other party, or allows its employees to render services on behalf of another party.(17) Spent oil--A regulated substance that is a lubricating oil or similar petroleum substance which has been refined from crude oil, used for its designed or intended purposes, and contaminated as a result of that use by physical or chemical impurities, including spent motor vehicle lubricating oils, transmission fluid, or brake fluid.(18) Tank removal--The physical removal of a petroleum storage tank from the subsurface. Tank removals include removal and replacement of surface material, excavation and disposal of backfill material, petroleum storage tank removal and disposal, backfilling and compaction of backfilled material, and any other activities typically associated with the tank removal process.(19) Vehicle service and fueling facility--A facility where motor vehicles are serviced or repaired and where petroleum products are stored and dispensed from fixed equipment into the fuel tanks of motor vehicles.</content><note type="source"><p>Source Note: The provisions of this §334.322 adopted to be effective September 26, 1990, 15 TexReg 5209; amended to be effective March 4, 1992, 17 TexReg 1385; amended to be effective March 25, 1993, 18 TexReg 1687; amended to be effective June 7, 1993, 18 TexReg 3293; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective October 22, 1997, 22 TexReg 10324; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective April 2, 2002, 27 TexReg 2522; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c334/scI"><num value="I">SUBCHAPTER I</num><heading>UNDERGROUND STORAGE TANK ON-SITE SUPERVISOR LICENSING AND CONTRACTOR REGISTRATION</heading><section identifier="/us/state/tx/tac/t30/p1/c334/scI/s334.401"><num value="334.401">§334.401</num><heading>License and Registration Required</heading><content>(a) An individual supervising the installation, repair, or removal of an underground storage tank (UST), as defined in §334.2 of this title (relating to Definitions), must hold an on-site supervisor license issued by the commission in accordance with Chapter 30 of this title (relating to Occupational Licenses and Registrations). An on-site supervisor must be present at the site at all times during the critical junctures of the installation, repair, or removal, as defined in §30.307 of this title (relating to Definitions). All references to installer throughout this chapter is the same as on-site supervisor.(b) Any person or business entity that offers to undertake, represents itself as being able to undertake, or does undertake the installation, repair, or removal of a UST, as defined in §334.2 of this title, must hold a UST contractor registration issued by the commission in accordance with Chapter 30 of this title.</content><note type="source"><p>Source Note: The provisions of this §334.401 adopted to be effective December 17, 2001, 26 TexReg 10378.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scI/s334.407"><num value="334.407">§334.407</num><heading>Other Requirements for an Underground Storage Tank Contractor</heading><content>(a) A registered underground storage tank (UST) contractor is required to maintain insurance and net worth requirements, as required by §30.315 of this title (relating to Qualifications for an Initial Registration), throughout the period that the contractor holds a valid registration from the executive director.(b) A UST contractor subject to the provisions of this subchapter employed or otherwise engaged by a UST owner or operator (or by any other person representing to be the UST owner or operator) to conduct the installation, repair, or removal of a UST shall comply with all applicable technical standards of Subchapter C of this chapter (relating to Technical Standards) and Chapter 213 of this title (relating to Edwards Aquifer).(c) Compliance with the provisions of this subchapter by a registered contractor shall not relieve such contractor from the responsibility of compliance with all applicable regulations legally promulgated by the United States Environmental Protection Agency, United States Occupational Safety and Health Administration, United States Department of Transportation, Texas Department of State Health Services, Texas Department of Insurance (including state fire marshal), Railroad Commission of Texas, Texas Department of Agriculture, State Comptroller, Texas Department of Public Safety, Texas Commission on Environmental Quality, and other federal, state, and local governmental agencies or entities having appropriate jurisdiction.(d) A UST contractor must have an on-site supervisor who is licensed by the agency under this subchapter at the site at all times during the critical junctures of the installation, repair, or removal, as defined in §30.307 of this title (relating to Definitions).(e) A UST contractor must prominently display the UST contractor registration number on all bids, proposals, offers, and installation drawings.</content><note type="source"><p>Source Note: The provisions of this §334.407 adopted to be effective August 3, 1990, 15 TexReg 4209; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective December 17, 2001, 26 TexReg 10378; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scI/s334.424"><num value="334.424">§334.424</num><heading>Other Requirements for an On-Site Supervisor</heading><content>(a) A licensed on-site supervisor subject to the provisions of this subchapter that is engaged in the installation, repair, or removal of underground storage tanks (USTs) shall be required to comply with all applicable technical standards of Subchapter C of this chapter (relating to Technical Standards) and Chapter 213 of this title (relating to Edwards Aquifer).(b) Compliance with the provisions of this subchapter by a licensed on-site supervisor shall not relieve such licensee from the responsibility of compliance with all applicable regulations legally promulgated by the United States Environmental Protection Agency, United States Occupational Safety and Health Administration, United States Department of Transportation, Texas Department of State Health Services, Texas Department of Insurance (including state fire marshal), Railroad Commission of Texas, Texas Department of Agriculture, State Comptroller, Texas Department of Public Safety, Texas Commission on Environmental Quality, and other federal, state, and local governmental agencies or entities having appropriate jurisdiction.(c) A licensed on-site supervisor who offers to undertake, represents to undertake, or does undertake the installation, repair, or removal of a UST shall either be registered as a UST contractor in accordance with this subchapter, or be employed by a registered UST contractor.</content><note type="source"><p>Source Note: The provisions of this §334.424 adopted to be effective October 12, 1990, 15 TexReg 5743; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective December 17, 2001, 26 TexReg 10378; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c334/scJ"><num value="J">SUBCHAPTER J</num><heading>LEAKING PETROLEUM STORAGE TANK CORRECTIVE ACTION SPECIALIST REGISTRATION AND PROJECT MANAGER LICENSING</heading><section identifier="/us/state/tx/tac/t30/p1/c334/scJ/s334.451"><num value="334.451">§334.451</num><heading>Applicability of Subchapter J</heading><content>(a) When referring to corrective action project managers within this chapter, the terms "registered" and "licensed" have the same meaning.(b) All corrective action services covered by this chapter must be performed by or be coordinated by a person or entity registered as a corrective action specialist.(c) All corrective action services covered by this chapter must be supervised by a licensed corrective action project manager according to Subchapter E of Chapter 30 of this title (relating to Leaking Petroleum Storage Tank Corrective Action Project Managers and Specialists).</content><note type="source"><p>Source Note: The provisions of this §334.451 adopted to be effective December 17, 2001, 26 TexReg 10378.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scJ/s334.454"><num value="334.454">§334.454</num><heading>Exception for Emergency Abatement Actions</heading><content>(a) An owner or operator or other person may undertake such corrective action as may be necessary to abate any immediate threat to human health and safety or the environment caused by a release or threatened release without a registered corrective action specialist or a licensed corrective action project manager; and a person who is not registered under §30.190 of this title (relating to Qualifications for Initial Registration), or §30.180 of this title (relating to Qualifications for Initial License) may provide or perform such services provided that the action is in compliance with this section.(b) For this section to apply, the owner or operator or other person must:(1) demonstrate that the actions taken were necessary to protect against imminent danger to human health and safety by mitigating fire, explosion, and vapor hazards, by removing free product from structures, basements, sumps, etc., or performing other actions as deemed necessary by the executive director;(2) notify the executive director of the emergency occurrence within 24 hours of commencing emergency abatement action;(3) notify the local fire marshal (or state fire marshal if no local authority is available) within 24 hours of commencing emergency abatement action; and(4) obtain the services of a registered corrective action specialist within ten days of commencing emergency action.</content><note type="source"><p>Source Note: The provisions of this §334.454 adopted to be effective December 17, 2001, 26 TexReg 10378.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scJ/s334.455"><num value="334.455">§334.455</num><heading>Notice to Owner or Operator</heading><content>(a) A notice of corrective action must be provided by the corrective action specialist, in accordance with this section for any corrective action services which are commenced on or after October 1, 1994.(b) The notice requirements of this section apply regardless of whether or not the person offering the services is working directly for an owner or operator. The notice of corrective action must be given to the owner or operator prior to the time when the offer to perform corrective action services is accepted.(c) The notice must contain the following:(1) whether the person or entity is registered in accordance with Chapter 30 of this title (relating to Occupational Licenses and Registrations);(2) the person or entity's registration number;(3) proof of commercial liability insurance required in §30.190 of this title (relating to Qualifications for Initial Registration); and(4) the disclaimer required in subsection (f) of this section; and(5) a statement signed by the owner or operator and by a representative of the corrective action specialist which indicates both parties are aware of the registration requirements for corrective action specialists and licensing requirements for corrective action project managers set forth in Chapter 30 of this title, and that reimbursement will be in accordance with the provisions of Subchapter H of this chapter (relating to Reimbursement Program) and in accordance with the published agency reimbursable cost guidelines.(d) The notice of corrective action must be on a form provided by the executive director. The person contracting with the owner or operator shall provide the owner or operator with a copy of the signed notice of corrective action.(e) Within 15 days of the date on which the offer to perform corrective action services is accepted, the corrective action specialist shall submit to the executive director a copy of such written notice signed by the authorized representative of the corrective action specialist and by the owner or operator or their duly authorized agent.(f) Any bid, proposal, or offer that indicates a company or person is a corrective action specialist must reproduce in its entirety the following disclaimer. The disclaimer must be a part of any notice required by this section.(1) The registration of a corrective action specialist with the agency does not constitute endorsement, licensing, or promotion of any corrective action specialist. Registration does not imply that the agency guarantees the quality of the work performed or that the cost of the work may be reimbursed.(2) Reimbursement for approved work is subject to the eligibility requirements set forth in Subchapter H of this chapter and the agency's reimbursable cost guidelines. Charges exceeding the amount determined as reimbursable for that particular work item shall not be reimbursed by the agency.</content><note type="source"><p>Source Note: The provisions of this §334.455 adopted to be effective December 17, 2001, 26 TexReg 10378.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c334/scK"><num value="K">SUBCHAPTER K</num><heading>STORAGE, TREATMENT, AND REUSE PROCEDURES FOR PETROLEUM-SUBSTANCE CONTAMINATED SOIL</heading><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.481"><num value="334.481">§334.481</num><heading>Definitions</heading><content>Except as provided in this subchapter, the following words and terms, when used in this subchapter, shall have the meanings prescribed in §334.2 of this title (relating to Definitions), unless the word or term is redefined in this subchapter or unless the context clearly indicates otherwise. Words used in more than one subchapter are defined in Subchapter A of this chapter (relating to General Provisions). Words widely used in more than one chapter are defined in Chapter 3 of this title (relating to Definitions).(1) Active life--The period from the initial receipt of waste at the facility until the executive director receives certification of final closure.(2) Active portion--That portion of a facility where treatment, or storage operations are being or have been conducted and which is not a closed portion. (See also "closed portion" and "inactive portion").(3) Aquifer--A geologic formation, group of formations, or part of a formation capable of yielding groundwater to wells or springs.(4) Area subject to active shoreline erosion--A coastal area where shoreline erosion has been documented within historic time.(5) Areas of direct drainage--Those land areas from which surface water runoff could flow into a lake or other surface water used to supply public drinking water.(6) Authorized--Allowed in writing by agency registration, by order, by permit, by license, or by rule.(7) Authorized Representative--The person designated by the owner or operator to represent the facility or the person designated by the waste generator as the generator's representative.(8) Class A facility--A facility which will at any time store or treat petroleum-substance contaminated soils generated from more than one leaking petroleum storage tank (LPST) site.(9) Class B facility--A mobile treatment unit which will treat petroleum-substance soils from only one LPST site at a time at that LPST site. The petroleum-substance soils treated at that site must have originated from that site.(10) Class C facility--A facility located elsewhere than the LPST site but which will store or treat petroleum-substance soils generated from only that one LPST site.(11) Class D facility--A facility located at the LPST site which will store or treat the petroleum- substance soils generated from only that site.(12) Clean fill standard--Soil which is no longer considered waste.(13) Closed portion--That portion of a facility which an owner or operator has closed in accordance with the approved facility closure plan and all applicable closure requirements. (See also "active portion" and "inactive portion.")(14) Contingency plan--A document setting out an organized, planned, and coordinated course of action to be followed in case of a fire, explosion, or release of waste or waste constituents which could threaten human health and safety or the environment.(15) Critical habitat of a endangered species--An area that is determined by the United States Fish and Wildlife Service to be a critical habitat for an endangered species.(16) Designated facility--The authorized storage, treatment, or disposal facility that has been designated on the petroleum-substance waste manifest by the generator.(17) Discharge--The accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, or dumping of waste into or on any land or water.(18) Disposal--The discharge, deposit, injection, dumping, spilling, leaking, or placing of any waste (whether containerized or noncontainerized) into or on any land or water so that such waste or any constituent thereof may enter the environment or be emitted into the air or discharged into or adjacent to any waters, including groundwater.(19) Disposal facility -- A facility or part of a facility at which waste is intentionally placed into or on any land or water or adjacent to any water, and at which such waste will remain.(20) Effective substitute--A substance which may be used in the place of another substance for the same purpose without creating adverse environmental conditions.(21) Erosion--The group of natural processes, including weathering, deterioration, detachment, dissolution, abrasion, corrosion, wearing away, and transportation, by which earthen or rock material is removed from any part of the earth's surface.(22) Existing Portion--That land surface area of an existing waste management unit, on which wastes have been placed prior to the issuance of a registration.(23) Facility--Includes structures, other appurtenances, and improvements on the land for storing or treating petroleum-substance waste. A facility may consist of several storage or treatment operational units. A facility may also be a mobile treatment unit.(24) Facility Operator--The person responsible for the overall operation of a facility or an operation unit (i.e., part of facility), e.g., the plant manager, superintendent, or person of equivalent responsibility for the regulated activity.(25) Facility Owner--The person who owns a facility or part of a facility.(26) Final closure--The closure of all waste management units at the facility in accordance with all applicable closure requirements.(27) Generator--Any person who produces petroleum-substance waste; any person who stores or treats petroleum-substance waste; any person who possesses petroleum-substance waste to be shipped to any other person; or any person whose act first causes the petroleum-substance waste to become subject to regulation under this subchapter.(28) Groundwater--Water below the land surface in a zone of saturation.(29) Hazardous waste--Any solid waste identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency pursuant to the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 United States Code 6901 et seq., as amended.(30) Inactive portion--That portion of a facility which is not operated. (See also "active portion" and "closed portion.")(31) In operation--Refers to a facility which is treating or storing petroleum-substance waste.(32) In-situ treatment--The reduction of contaminant levels in soil or groundwater which is conducted without removing the contaminated media from the ground.(33) Interim registration--Authorization for a storage or treatment facility received by the facility up to September 25, 1992.(34) Land disposal facility--Any landfill, surface impoundment, waste pile, injection well, or other facility at which waste is finally disposed.(35) Land surface treatment facility--A facility, unit, or part of a facility at which waste is applied onto a liner on the soil surface during treatment.(36) Liner--A continuous layer of man-made materials, beneath and on the sides of a surface area which restricts the downward and lateral escape of waste, waste constituents, or leachate.(37) Maximum allowable inventory--The maximum amount of petroleum contaminated soil (not including soil that meets the "Clean fill standard" criteria) that may be at a registered facility at any one time. The maximum allowable inventory amount will be designated in the application for registration and will be the basis for the facility closure cost estimate required to meet financial assurance requirements.(38) New petroleum-substance waste management facility--Any facility to be used for the storage or treatment of petroleum-substance waste and which is not an existing petroleum substance waste management facility.(39) One hundred-year floodplain--Any land area which is subject to a 1.0% or greater chance of flooding in any given year from any source.(40) On-site--The same or geographically contiguous property which may be divided by public or private rights-of-way. Noncontiguous properties owned by the same person but connected by a right- of-way which that person controls and to which the public does not have access, is also considered on- site property.(41) PST-Waste Manifest--The form furnished by the agency to accompany shipments of petroleum- substance waste to track the movement and transference of petroleum-substance waste.(42) Partial closure--The closure of a petroleum-substance waste management unit in accordance with the applicable closure requirements at a facility that contains other active petroleum-substance waste management units.(43) Personnel or facility personnel--All persons who work at or oversee the operations of a waste management facility, and whose actions or failure to act may result in noncompliance with the requirements of this subchapter.(44) Petroleum substance waste--Any waste, excluding hazardous waste and liquid wastes, which is generated as a result of a release of a petroleum substance from an underground storage tank or a petroleum product from an aboveground storage tank regulated by the commission pursuant to the Texas Water Code, Chapter 26, Subchapter I.(45) Public water system--A system for the provision to the public of piped water for human consumption, if such system has at least 15 service connections or regularly services an average of at least 25 individuals daily at least 60 days out of the year.(46) Registration--Written authorization issued by the executive director, which, by its conditions, may authorize the registrant to construct, install, modify, or operate a petroleum-substance waste storage or treatment facility or unit in accordance with specified limitations.(47) Representative sample--A sample of a universe or whole (e.g., waste pile, groundwater) which can be expected to exhibit the average properties of the universe or whole.(48) Reuse of petroleum-substance wastes--The process by which a petroleum-substance waste is utilized as an effective substitute for a commercial product, such as the proper use as a component of stabilized road base or use as fill for LPST tankholds.(49) Run-off--Any rainwater, leachate, or other liquid that drains over or into land from any part of a facility, land surface treatment unit, or stockpile.(50) Run-on--Any rainwater, leachate, or other liquid that drains over land onto or into any part of a facility, land surface treatment unit, or stockpile.(51) Saturated zone or zone of saturation--That part of the earth's crust in which all voids are filled with water.(52) Secondary containment--A system designed and constructed to collect rainfall run-on and to contain spills, leaks, or discharges within the facility without environmental contamination until such waste can be removed.(53) Shipment--Any action involving the conveyance of petroleum-substance waste by any means to or from a site.(54) Sole-source aquifer--An aquifer designated pursuant to the Safe Drinking Water Act, §1424(e) which solely or principally supplies drinking water to an area, and which, if contaminated, would create a significant hazard to public health.(55) Spill--The spilling, leaking, pumping, emitting, emptying, or dumping of wastes or materials which, when spilled, become wastes into or on any land or water.(56) Storage--The holding of petroleum-substance waste for a temporary period, prior to the final treatment, disposal of, reuse, or storing of the waste elsewhere.(57) Stockpile--A soil storage area from which all petroleum-substance wastes are removed for treatment or final disposition and from which all wastes are removed at the time of closure of the facility.(58) Thermal treatment unit--An enclosed device using controlled flame combustion, microwave, UV, infrared, or other thermal treatment process.(59) Treatment--Methods which are designed to change, by physical, chemical, or biological means, the levels of contamination of the waste to render the waste suitable for reuse or disposal.(60) Treatment facility--A facility or unit which treats, recycles, and/or reuses petroleum-substance wastes.(61) Transporter--Any person who conveys or transports petroleum-substance waste by truck, ship, pipeline, or other means.(62) Unsaturated zone or zone of aeration--The zone between the land surface and the water table.(63) Uppermost aquifer--The geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected within the facility's property boundary.(64) Waste management area--Any area on which one or more waste management units resides.(65) Waste management unit--A contiguous area of land on or in which petroleum substance waste is placed, or a structure or machine used to store or treat waste pursuant to a registration issued under this subchapter. Examples of waste management units include a waste stockpile, a land surface treatment area, a thermal treatment unit, a stockpile, a tank and its associated piping and underlying containment system, and a container storage area.(66) Wetlands--Those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.</content><note type="source"><p>Source Note: The provisions of this §334.481 adopted to be effective March 25, 1993, 18 TexReg 1691; amended to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.482"><num value="334.482">§334.482</num><heading>General Requirements</heading><content>(a) No person may cause, suffer, allow, or permit the storage, treatment, transport, reuse, or disposal of petroleum-substance waste except as authorized by this subchapter and the rules of the commission.(b) Prior to proceeding in any manner that differs from the requirements of this subchapter, the generator and/or an authorized representative of the treatment facility must secure written agency approval in the form of a variance in accordance with this section.(c) The agency has authority to review and approve requests for variances from the requirements of this subchapter. The agency may approve such requests only if the generator and/or an authorized representative of the treatment facility can demonstrate to the satisfaction of appropriate agency staff that the proposed alternative procedure is protective of human health and safety and the environment.(d) Any request to the agency for approval of a variance must be made in writing, must be signed and dated by the generator and/or an authorized representative of the treatment facility, and must be accompanied by complete project identification and documentation as requested by agency staff.(e) If a variance is granted by the agency, the generator and treatment facility must maintain complete copies of the variance and supporting documentation (including the request for the variance) in the manner described in §334.497 (relating to Recordkeeping and Reporting Procedures Applicable to Generators).(f) Once a person has received a written variance from the agency under this subsection, that person must adhere to the terms of that variance as written or to the rule requirements for which the variance was sought.</content><note type="source"><p>Source Note: The provisions of this §334.482 adopted to be effective March 25, 1993, 18 TexReg 1691; amended to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.483"><num value="334.483">§334.483</num><heading>Disposal by Generator</heading><content>A generator of petroleum-substance waste may not finally dispose of petroleum-substance waste at a site or facility unless the site or facility is authorized to receive such wastes pursuant to one of the following:(1) permit issued by the commission pursuant to Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste) or Chapter 330 of this title (relating to Municipal Solid Waste Management);(2) authorization issued jointly by the Texas Railroad Commission and the commission for a facility currently permitted by the Railroad Commission; or(3) §334.501 of this title (relating to Reuse of Petroleum-Substance Waste).</content><note type="source"><p>Source Note: The provisions of this §334.483 adopted to be effective March 25, 1993, 18 TexReg 1691.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.484"><num value="334.484">§334.484</num><heading>Registration Required for Petroleum-Substance Waste Storage or Treatment Facilities</heading><content>(a) A person shall submit the required application and receive the appropriate registration issued after December 27, 1996, prior to storing or treating petroleum-substance wastes at a new Class A facility or treating soil utilizing a new Class B waste management facility.(b) A person may not commence physical construction of a new Class A or utilize a Class B petroleum-substance waste management facility without first having submitted the required application and received the appropriate registration unless otherwise authorized by the agency.(c) Any person who intends to store or treat petroleum-substance waste at a Class A or Class B facility after December 27, 1996, must submit an application for registration on a form approved by the agency. Such person must submit information to the executive director which is sufficiently detailed and complete to enable the agency to determine whether such storage or treatment is compliant with the terms of this subchapter. Such information shall include, at a minimum:(1) information concerning the location of the facility;(2) identification of the facility owner, facility operator, and landowner;(3) the job descriptions of all key operating personnel;(4) documentation on the proposed access routes to the facility, proposed daily volumes of traffic associated with the facility, and confirmation on the suitability of roads leading to the facility;(5) waste storage, management, handling, and shipping methods;(6) waste treatment methods;(7) waste sampling and analytical methods;(8) disposition or reuse documentation;(9) recordkeeping requirements;(10) security and emergency procedures;(11) facility closure plan and closure cost estimate (see §334.508 of this title (relating to Closure Requirements Applicable to Class A and Class B Facilities));(12) facility plans and specifications;(13) site maps and vicinity maps;(14) documentation on the land use in the vicinity of the facility;(15) identification of all potential contaminant receptors in the vicinity, including any water wells within 1,000 feet;(16) documentation on the financial assurance required (see Chapter 37, Subchapter K of this title (relating to Financial Assurance Requirements for Class A or B Petroleum-Substance Contaminated Soil Storage, Treatment, and Reuse Facilities));(17) documentation on all required restrictive easements;(18) the geology and hydrogeology where the facility is located;(19) documentation on the effectiveness of the treatment method;(20) documentation of the receipt of any additional authorization required by any other federal, state, or local regulatory agency; and(21) any other information as the agency may deem necessary to determine whether the facility and operation thereof will comply with the requirements of this subchapter. The application shall be submitted to the agency's central office.(d) If the applicant is other than an individual, the application must be signed by the owner or operator of the facility, the president or chief executive officer of the company, or all the partners of the company.(e) Any person who stores or treats petroleum-substance waste shall have the continuing obligation to immediately provide written notice to the agency of any changes or additional information concerning the information submitted to the commission or activities authorized in any registration within 15 days of the change or from the date the additional information was acquired.(f) Any information required by this subsection must be submitted to the agency's office in Austin.(g) The registration is not transferable to any other facility or facility owner. Any transfer of ownership shall require a change in registration of the facility. However, a change in registration of a facility shall not relieve the transferor of any liability which may have been incurred prior to the change in registration.(h) The applicant or a person affected by the executive director's final approval or denial of an application for registration may file with the chief clerk of the commission a motion to overturn under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).</content><note type="source"><p>Source Note: The provisions of this §334.484 adopted to be effective March 25, 1993, 18 TexReg 1691; amended to be effective December 27, 1996, 21 TexReg 12177 ; amended to be effective March 21, 2000, 25 TexReg 2390; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective May 14, 2020, 45 TexReg 3126.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.485"><num value="334.485">§334.485</num><heading>Suspension or Revocation of Registration</heading><content>(a) A registration may be suspended or revoked for the following reasons:(1) if the registrant fails to maintain complete and accurate records required under this subchapter;(2) if the registrant falsifies information in, or omits material information from, any records or documents maintained, received, or required by this chapter;(3) if the registrant fails to comply with any rule or order entered by the commission pursuant to the requirements of Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks);(4) if the registrant fails to maintain financial assurance as required by this subchapter and Chapter 37, Subchapter K of this title (relating to Financial Assurance Requirements for Class A or B Petroleum- Substance Contaminated Soil Storage, Treatment, and Reuse Facilities);(5) if the registrant exceeds maximum allowable inventory without prior written authorization from the agency; or(6) for any good cause which, in the opinion of the executive director, constitutes grounds for suspension or revocation of the registration.(b) If the executive director determines that good cause exists for suspension or for revocation of a registration, the executive director will petition the commission for an order, suspending or revoking the registration.(1) The executive director will notify the registrant in writing, by registered or certified mail, of the grounds for the suspension or revocation, and provide the registrant with an opportunity for hearing on the executive director's petition.(2) The executive director will provide notice at least ten days prior to the date of the hearing.(3) The registrant must be afforded an opportunity to answer the executive director's petition for suspension or revocation in the manner generally described by this title.(4) A registration may be suspended for any length of time which is warranted in the opinion of the commission. The commission may impose terms and conditions on the suspension, as well as conditions for reinstatement of the registration.(5) If the term of the suspension does not exceed the original term of the registration, the registrant does not need to reapply at the termination of the suspension.(6) A revocation pursuant to this section is permanent.</content><note type="source"><p>Source Note: The provisions of this §334.485 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective March 21, 2000, 25 TexReg 2390; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.486"><num value="334.486">§334.486</num><heading>Denial of Application for Registration or Renewal</heading><content>The agency may deny an application for registration or an application for renewal of registration of a facility under this subchapter for the following reasons:(1) if the applicant fails to meet any of the requirements set forth in §334.484 of this title (relating to Registration Required for Petroleum-Substance Waste Storage or Treatment Facilities);(2) if the applicant fails to comply with any rule or order of the commission;(3) if the applicant submits false information on or omits material information from the application or any other documentation required to be maintained or submitted under this chapter; or under Chapter 37, Subchapter K, of this title (relating to Financial Assurance Requirements for Class A or B Petroleum-Substance Contaminated Soil Storage, Treatment, and Reuse Facilities); or(4) for any good cause which in the opinion of the executive director constitutes grounds for denial of the application for registration.</content><note type="source"><p>Source Note: The provisions of this §334.486 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.487"><num value="334.487">§334.487</num><heading>Renewal of Registration</heading><content>(a) All registrations under this subchapter shall expire five years from the date of issuance.(b) The agency will notify each registrant in writing of the impending registration expiration at least 60 days prior to the expiration of the registration.(c) The agency will provide application forms for renewal of a registration.(d) A properly completed application for renewal shall be submitted to the agency at least 30 days prior to the expiration date of the registration. The current registration shall be valid until the agency notifies the applicant of renewal or denial of the submitted renewal application, provided a properly completed application for renewal was submitted at least 30 days prior to the expiration date of the registration.(e) Upon proper completion of the registration renewal process, the agency will either issue a renewed registration indicating the expiration date or deny the application for renewal, as authorized by §334.486 of this title (relating to Denial of Application for Registration or Renewal).</content><note type="source"><p>Source Note: The provisions of this §334.487 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.488"><num value="334.488">§334.488</num><heading>Authorization for Class C and Class D Facilities</heading><content>Authorization for Class C and Class D facilities is issued by the agency when the leaking petroleum storage tank (LPST) site is subject to a corrective action plan involving storage and treatment activities pursuant to §334.81 of this title (relating to Corrective Action Plan). Agency approval of the corrective action plan for the storage or treatment activities shall constitute authorization for the Class C or Class D facility. A Class C or Class D storage or treatment facility shall remain in operation only as long as is necessary to store or treat the soil from that one LPST site and it shall not accept soil from any other site at any time. The underground or aboveground storage tank owner or operator shall ensure that the approved storage and treatment activities comply with the following applicable provisions: §§334.482, 334.483, 334.490, 334.494, 334.496 - 334.503, and 334.505 - 334.507 of this title (relating to General Prohibitions; Disposal by Generator; Notification and Mobilization Requirements for Class B Facilities; Closure and Facility Expansion; Shipping Procedures Applicable to Generators of Petroleum-Substance Waste; Recordkeeping and Reporting Procedures Applicable to Generators; Shipping Requirements Applicable to Transporters of Petroleum-Substance Waste; Shipping Requirements Applicable to Owners or Operators of Storage, Treatment, or Disposal Facilities; Recordkeeping Requirements Applicable to Owners or Operators of Storage, Treatment, or Disposal Facilities; Additional Reports; Design and Operating Requirements of Stockpiles and Land Surface Treatment Units; Reuse of Petroleum-Substance Waste; Security; Contingency Plan; and Emergency Procedures).</content><note type="source"><p>Source Note: The provisions of this §334.488 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.489"><num value="334.489">§334.489</num><heading>Exemptions</heading><content>The following are exempt from the requirements of this subchapter:(1) facilities which operate under the jurisdiction of the Texas Railroad Commission or for the purpose of disposal, facilities permitted or regulated under other commission rules promulgated under the Texas Health and Safety Code, Solid Waste Disposal Act, Chapters 361, 363, or 371; and(2) leaking petroleum storage tank sites which treat petroleum-substance contaminated media if the media is treated in-situ in accordance with the provisions of Subchapter D of this chapter (relating to Release Reporting and Corrective Action). Such sites, however, are not exempt from the provisions of §334.482 of this title (relating to General Prohibitions);(3) petroleum contaminated soil treatment facilities located at municipal landfills that comply with §330.8 of this title (relating to Notification Requirements).</content><note type="source"><p>Source Note: The provisions of this §334.489 adopted to be effective December 27, 1996, 21 TexReg 12177.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.490"><num value="334.490">§334.490</num><heading>Notification and Mobilization Requirements for Class B Facilities</heading><content>In addition to the required registration under §334.484 of this title (relating to Registration Required for Petroleum-Substance Waste Storage or Treatment Facilities).(1) The owner or operator of a Class B facility shall notify the appropriate agency regional office at least 48 hours in advance of moving the treatment unit to the leaking petroleum storage tank (LPST) site.(2) The owner or operator of the Class B facility shall notify the local fire marshal or other appropriate fire official at least 48 hours in advance of moving the treatment unit to the LPST site.(3) The owner or operator of the underground or aboveground storage tank who intends to utilize a Class B facility at a particular LPST site shall obtain agency approval pursuant to §334.81 of this title (relating to Corrective Action Plan).(4) The Class B facility shall remain at the LPST site for only the time period necessary to complete the treatment, but no longer than 30 days, unless written authorization is obtained from the agency.(5) The Class B facility owner or operator shall provide notice to the public by means of posting signs at the LPST site at least 14 days prior to moving the treatment unit onto the LPST site or within another time frame as approved by the agency. The signs shall be legible from a distance of at least 25 feet and shall be posted at all entrances to the facility. The signs shall state "Public Notice of Petroleum- Substance Contaminated Soil Treatment", the name and phone number of the treatment facility owner, the name and phone number of the tank owner or operator, the registration number of the treatment facility, the type of soil treatment to be conducted, and the date(s) the treatment will be conducted.(6) The Class B facility owner or operator shall produce upon demand the registration certificate issued by the agency under this subchapter as well as any other permit or authorization required by law.</content><note type="source"><p>Source Note: The provisions of this §334.490 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.491"><num value="334.491">§334.491</num><heading>Notice to Owners or Operators</heading><content>(a) Written notice shall be provided in accordance with this section to any person, including the tank owner and operator, with any offer to perform any services of storage, treatment, or reuse of petroleum-substance contaminated soil proposed after December 27, 1996.(b) The notice shall contain the following:(1) the facility registration number issued pursuant to this subchapter's registration requirements;(2) the following disclaimer reproduced in its entirety: "The registration of a storage or treatment facility by the Texas Commission on Environmental Quality (TCEQ) does not constitute endorsement, licensing, or promotion of any storage or treatment facility. Registration does not imply that the TCEQ guarantees the quality of the work performed or that the cost of the work will be reimbursed."</content><note type="source"><p>Source Note: The provisions of this §334.491 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.492"><num value="334.492">§334.492</num><heading>Public Notice</heading><content>The Class A facility owner or operator shall provide notice to the general public regarding the location, construction, operation, and potential impacts of the storage or treatment facility.(1) The facility owner or operator shall provide notice of the facility to the general public by means of a notice by publication and a notice by mail.(2) The notice shall contain, at a minimum, the following information in accordance with forms approved by the agency:(A) the name, address, phone number, and contact person for the owner of the facility;(B) the name, address, phone number, and contact person for the operator of the facility;(C) the name, address, phone number, and contact person for the landowner (if different from the facility owner);(D) the address and the physical description for the location of the facility;(E) notice to the public of the opportunity to submit written comments regarding the application for registration of the facility and to request a public meeting regarding the proposed facility within 30 days of the date of the notice;(F) notice that an application for registration has been filed with the agency;(G) a complete description of the activities which will be conducted at the facility, including details on the construction of the facility, the soil storage methods, the soil treatment methods, the final disposition of the treated soils, and documentation on any points of discharge;(H) the method for obtaining additional information on the facility.(3) The notice by publication shall be published in a newspaper published daily, if available, and generally circulated in the county or area where the proposed facility is to be located and within each county or area wherein persons reside who would be affected by the facility.(4) The notice by certified mail, return receipt requested, shall be sent to the following persons:(A) all adjacent landowners and all owners of property within 1,000 feet of the boundary of the facility as defined in the application;(B) the mayor and health authorities of the city in which the facility will be located, if applicable;(C) the county judge and county health authority of the county in which the facility will be located;(D) the appropriate state senator and representative for the area encompassing the facility;(E) all persons or organizations who have requested the notice or expressed interest in the facility. The agency may designate persons or organizations in addition to those specified by the facility owner or operator.(5) The facility owner or operator shall provide copies of each notice sent by mail, copies of the published notice, and copies of the signed publisher's affidavits for the notices to the agency's central office and to the appropriate agency regional office within two calendar days of publication and mailing.</content><note type="source"><p>Source Note: The provisions of this §334.492 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.493"><num value="334.493">§334.493</num><heading>Public Meetings for Class A Facilities</heading><content>(a) The agency may, in response to a request from the public or at its own discretion, require the Class A facility owner or operator to hold a public meeting whenever such a meeting might clarify one or more issues concerning an application for registration of a facility.(b) Upon request by the agency, the Class A facility owner or operator, at its expense, shall schedule and hold a public meeting at a time and place which are convenient for the general public affected by the facility. Notice of the public meeting shall be provided by the Class A facility owner or operator to the public, not less than 30 days prior to the date of the meeting, in the manner described in §334.492(3), (4), and (5) of this title (relating to Public Notice).(c) The forum chosen for the meeting shall be accessible to persons who are mobility impaired. Prior to scheduling of the meeting, the applicant shall coordinate the scheduling of the meeting with agency personnel to ensure the availability of agency personnel for the meeting. The applicant shall confirm with the agency the date, time, and location of the meeting not less than 15 days prior to the meeting. The meeting shall be open to the public to provide information on the proposed facility and to allow for comments by the public. The agency will consider all comments relating to the requirements of this subchapter when determining the outcome of the registration application. The applicant shall again confirm with the agency on the time and place of the meeting at least 72 hours prior to the meeting.(d) If the agency does not request the Class A facility owner or operator to hold a public meeting as authorized by this section, no public meeting shall be required before the agency may approve or deny an application for registration of a Class A facility.</content><note type="source"><p>Source Note: The provisions of this §334.493 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.494"><num value="334.494">§334.494</num><heading>Closure and Facility Expansion</heading><content>A person who stores or treats petroleum-substance waste at a Class A or B facility shall notify the agency in writing of any closure activity or facility expansion not specifically stated in the original application for registration at least 30 days prior to conducting such activity. Such person shall submit to the agency upon request such information as may reasonably be required to enable the agency to determine whether such activity is compliant with this subchapter and whether additional public notice should be conducted. Any information provided under this section shall be submitted to the agency's office in Austin and to the appropriate regional office.</content><note type="source"><p>Source Note: The provisions of this §334.494 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.495"><num value="334.495">§334.495</num><heading>Location Standards for Class A Petroleum-Substance Waste Storage or Treatment Facilities</heading><content>(a) The agency will not issue a registration for a Class A petroleum-substance waste management facility unless it finds that the proposed site, when evaluated in light of proposed design, construction, and operational features, reasonably minimizes possible contamination of surface water and groundwater. In making this determination, the agency will consider the following factors:(1) flooding or active geologic processes such as erosion, subsidence, submergence, and faulting;(2) groundwater conditions such as groundwater flow rate, groundwater quality, length of flow path to points of discharge, and aquifer recharge or discharge conditions;(3) soil conditions such as stratigraphic profile, stratigraphic complexity, and hydraulic conductivity of strata;(4) separation distance from the facility to the aquifer and to points of discharge to surface water; and(5) climatological conditions.(b) Class A storage or treatment facilities shall not be located:(1) in the 100-year floodplain;(2) in wetlands;(3) on the recharge or transition zone of a sole-source aquifer;(4) within 1,000 feet of an established residence, church, hospital, school, licensed day-care center, or dedicated public park;(5) within 1,000 feet of any property owned by a person other than the facility owner unless the applicant obtains a variance from the agency pursuant to subsection (d) of this section relating to variances;(6) in areas of direct drainage within 1/2 mile of any surface water if the surface water is used to supply public drinking water through a public water system, unless it is designed, constructed, operated, and maintained to prevent any releases of contaminants from the facility;(7) in the critical habitat of an endangered species of plant or animal; or(8) in an area where the roads leading to the facility which will be utilized to transport soil are not adequate to handle the anticipated traffic volume and load.(c) Nothing in this subchapter shall be construed to require the agency to issue a registration. In addition to an applicant's compliance with location requirements, the agency will consider public comment on the proposed facility, surrounding land uses, past performance record if any, and enforcement history with this agency and other state agencies, when determining whether or not to register an applicant under this subchapter.(d) The agency may, in its discretion, grant a variance of the requirements of subsection (b) of this section, relating to location requirements for Class A Facilities. Before the agency may issue a variance under this subsection, it shall require the applicant to demonstrate that the provisions of subsection (b) of this section are not necessary to ensure adequate protection of human health and the environment.</content><note type="source"><p>Source Note: The provisions of this §334.495 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.496"><num value="334.496">§334.496</num><heading>Shipping Procedures Applicable to Generators of Petroleum-Substance Waste</heading><content>(a) No generator shall transport petroleum-substance waste from the generating site unless the waste has been properly sampled to determine the levels of all possible contaminants in the waste. Necessary documentation shall, at a minimum, consist of documentation on the sampling, handling, chain-of-custody documentation, and copies of signed laboratory reports on samples collected from the specified wastes that contain results of analysis for:(1) the major components of the petroleum-substance waste such as benzene, toluene, ethylbenzene, total xylenes, and total petroleum hydrocarbons or the major components of total petroleum hydrocarbons; and(2) any other contaminants as specified by the agency based on specific conditions of the generating site.(b) No generator of petroleum-substance waste within the State of Texas shall allow the transport of such wastes to an off-site waste storage, treatment, reuse, or disposal facility unless the following requirements are met:(1) a Texas Commission on Environmental Quality (TCEQ) petroleum-substance manifest is initiated, to include all applicable information, by the generator; and(2) the generator designates on the manifest at least one facility or area legally authorized to receive the waste. A generator may also designate one alternate facility or area which is legally authorized to receive the waste in the event an emergency prevents delivery of the waste to the primary designated facility. If the transporter is unable to deliver the waste to either the designated facility or the alternate facility, the generator shall either immediately designate another facility for receipt or instruct the transporter to immediately return the waste. Upon such redesignation by the generator, the generator shall immediately prepare an amended waste manifest.(c) No generator of petroleum-substance waste from outside of the State of Texas shall allow transport of waste into the State of Texas unless the following requirements are met:(1) a TCEQ petroleum-substance manifest is initiated by the generator to include all applicable information;(2) the manifest shall accompany the waste to the receiving facility; and(3) the waste is classified as non-hazardous by the state in which it is generated.(d) At the time of waste transfer, the generator or generator's authorized representative shall:(1) sign the manifest by hand;(2) obtain the handwritten signature of the initial transporter and date of acceptance on the manifest;(3) retain one copy, in accordance with §334.497 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators); and(4) give the transporter the remaining copies of the manifest.</content><note type="source"><p>Source Note: The provisions of this §334.496 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.497"><num value="334.497">§334.497</num><heading>Recordkeeping and Reporting Procedures Applicable to Generators</heading><content>Each generator of petroleum-substance waste shall comply with the following.(1) The generator shall keep records of all petroleum-substance waste activities regarding the quantities generated and shipped off-site for storage, treatment, or disposal and which, at a minimum, includes the information described in paragraphs (1) - (5) of this section. The maintained records shall be retrievable, legible, and immediately available for inspection and copying by agency personnel. The required records shall be sufficiently detailed and complete to support any contentions or claims made by the generator with respect to the following:(A) the description, character, and classification of each waste;(B) the quantity of waste and the date(s) it was generated;(C) identification of the generating location and the tank owner or operator;(D) the methods of storage, treatment, or disposal;(E) the quantity and date(s) the waste was shipped off-site for storage, treatment, or disposal including the name, address, and location of each off-site facility and transporter receiving shipments.(2) The generator shall retain a legible copy of each waste manifest required by §334.496 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste) for a minimum of five years from the date of shipment by the generator.(3) A generator of petroleum-substance waste shall keep records of all test results, waste analyses, or other determinations made for at least five years from the date that the waste was last sent to an off-site storage, treatment, disposal, or reuse area or facility.(4) A generator who does not receive a copy of the manifest with the handwritten signature of the owner or operator of the designated facility within 35 days from the date the waste was accepted by the initial transporter shall contact the transporter and/or the owner or operator of the designated facility to determine the status of the petroleum-substance waste.(5) A generator shall submit an exception report to the agency if the generator has not received a copy of the manifest with the handwritten signature of the owner or operator of the designated facility within 45 days of the date that the waste was accepted by the initial transporter. The exception report shall be retained by the generator for at least five years from the date the waste was accepted by the initial transporter and shall include:(A) a legible copy of the manifest for which the generator does not have confirmation of delivery; and(B) a legible copy of a letter signed by the generator or his authorized representative explaining the efforts taken to locate the waste and the results of those efforts.(6) The periods of record retention required by this section may be extended by the agency during the course of any unresolved enforcement action regarding the regulated activity.</content><note type="source"><p>Source Note: The provisions of this §334.497 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.498"><num value="334.498">§334.498</num><heading>Shipping Requirements Applicable to Transporters of Petroleum-Substance Waste</heading><content>(a) No transporter shall ship petroleum-substance waste to an off-site storage, treatment, or disposal facility, unless the transporter:(1) obtains a manifest initiated by the generator in accordance with §334.496 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste); and(2) upon receipt and prior to shipment, signs and dates the manifest acknowledging the acceptance of waste from the generator where appropriate.(b) The transporter shall ensure that the manifest accompanies the petroleum-substance waste.(c) No transporter shall deliver a shipment of petroleum-substance waste to another transporter designated on the manifest, unless the delivering transporter:(1) obtains the date of delivery and the handwritten signature of the accepting transporter on the manifest; and(2) gives the legible copies of the manifest to the accepting transporter.(d) No transporter shall deliver a shipment of petroleum-substance waste to a storage, treatment, or disposal facility, unless the transporter:(1) obtains the date of delivery and the handwritten signature on the manifest of the owner or operator of the facility designated on the manifest; and(2) gives the copies of the manifest to the owner or operator of the storage, treatment, or disposal facility designated on the manifest.(e) The transporter shall deliver the entire quantity of petroleum-substance waste which the transporter has accepted from a generator or a transporter to:(1) the designated facility listed on the manifest;(2) the alternate designated facility if the waste cannot be delivered to the designated facility because an emergency prevents delivery; or(3) the next designated transporter.(f) If the transporter cannot deliver the waste in accordance with subsection (e) of this section, the transporter shall immediately contact the generator for further directions and shall revise the manifest according to the generator's instructions.</content><note type="source"><p>Source Note: The provisions of this §334.498 adopted to be effective December 27, 1996, 21 TexReg 12177.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.499"><num value="334.499">§334.499</num><heading>Shipping Requirements Applicable to Owners or Operators of Storage, Treatment, or Disposal Facilities</heading><content>(a) No owner or operator of a storage, treatment, or disposal facility may accept delivery of petroleum-substance waste for storage, treatment, or disposal unless:(1) a Texas Commission on Environmental Quality (TCEQ) Petroleum Storage Tank (PST) - Waste Manifest accompanies the shipment which designates that facility to receive the waste;(2) the facility owner or operator signs the PST-Waste Manifest and immediately gives at least one copy of the signed PST-Waste Manifest to the transporter;(3) the facility owner or operator retains one copy of the PST-Waste Manifest in accordance with §334.500 of this title (relating to Recordkeeping Requirements Applicable to Owners or Operators of Storage, Treatment, or Disposal Facilities); and(4) within 30 days after receipt of the waste, the facility owner or operator sends a copy of the PST- Waste Manifest to the generator.(b) When a facility or reuse area receives petroleum-substance waste accompanied by a PST-Waste Manifest, the facility owner or operator, or his agent, or the owner or operator of the property designated for the reuse area shall note any significant discrepancies on each copy of the PST-Waste Manifest.(1) Significant discrepancies are differences between the quantity or type of waste designated on the PST-Waste Manifest and the quantity or type of waste a facility actually received. Significant discrepancies in type of waste are obvious differences which can be discovered by inspection or waste analysis.(2) Upon discovering a significant discrepancy, the facility owner or operator shall attempt to reconcile the discrepancy with the waste generator or transporter (e.g., with telephone conversations). If the discrepancy is not resolved within 15 days after receiving the waste, the facility owner or operator shall, within five days, submit to the agency a letter describing the discrepancy and attempts to reconcile it, and a copy of the PST-Waste Manifest at issue. The facility owner or operator shall ensure that the waste is a petroleum-substance waste eligible for acceptance by the facility pursuant to this subchapter and shall report any unreconciled discrepancies discovered during any analyses or evaluation.(c) No owner or operator of a storage, treatment, or disposal facility in Texas shall accept wastes from an out-of-state generator or location unless the following requirements are met:(1) the waste is accompanied by legible copies of the signed TCEQ PST-Waste Manifest for all wastes received pursuant to §334.496 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste);(2) the facility owner or operator obtains documentation that the wastes contain only petroleum-substance contamination, have been generated from an underground or aboveground storage tank as defined in this chapter, and are classified as non-hazardous in the state where generated. This documentation shall consist of documentation on the sampling methods, sample handling, chain-of-custody documents, and legible copies of signed laboratory reports on samples collected from the specified wastes. The number of samples shall be sufficient to characterize the entire quantity of wastes. The analyses shall include:(A) volatiles and semi-volatiles by United States Environmental Protection Agency (EPA) Methods 8240 and 8270, respectively;(B) toxicity characteristic listed constituents as specified in 40 Code of Federal Regulations, Part 261;(C) organochlorine pesticides and polychlorinated biphenyls by EPA Method 8080; and(D) any other analyses necessary to characterize the wastes or as specified by the agency; and/or(3) the facility owner or operator obtains documentation from the appropriate governing agency in the originating jurisdiction that the wastes are classified as non-hazardous and meet the definition of petroleum-substance wastes (as such wastes are defined in §334.2 of this title (relating to Definitions)), and provides such documentation to the agency prior to receiving the out-of-state soils.(d) The facility owner or operator shall not accept any wastes for storage, treatment, or disposal from an in-state generator or location which contain any contaminants above natural background levels other than petroleum substances as defined in this subchapter, unless otherwise approved by the agency. Documentation of the contaminants in the waste shall consist of a sufficient number of samples to characterize the waste and the samples shall be analyzed for all contaminants that may occur in that waste.</content><note type="source"><p>Source Note: The provisions of this §334.499 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.500"><num value="334.500">§334.500</num><heading>Recordkeeping Requirements Applicable to Owners or Operators of Storage, Treatment, or Disposal Facilities</heading><content>(a) All records required by this subchapter shall be retained by the facility owner or operator for a minimum of five years from the date of receipt of the waste. The records shall be maintained in a secure location on the premises of the storage, treatment, or disposal facility and shall be immediately accessible by the facility owner and operator. In the event that copies of the required records cannot reasonably be maintained on the premises of the facility, such records may be maintained at a readily- accessible alternate site, provided that the following conditions are met.(1) If the facility is in operation, the records shall be readily accessible for reference by the facility owner and operator.(2) The records shall be readily accessible and available for inspection and copying upon request by agency personnel.(3) The facility owner or operator shall provide the following information in writing to the agency's central office:(A) the specific location where the required records are maintained; and(B) the name, address, and telephone number of the authorized custodian of the records.(4) The written information required in paragraph (3) of this subsection shall be submitted with the application for registration and within 15 days after the records are moved to an alternate site from that specified in the registration.(b) For facilities which have completed the closure requirements and are no longer in service, the facility owner may submit the appropriate records required by this subchapter to the agency in lieu of maintaining the records on the premises or at an alternate site, provided that the following conditions are met:(1) the facility owner shall provide written justification adequate to explain why the records cannot be maintained at a readily-accessible alternate site; and(2) the records shall be submitted at one time in one package for each facility, and the records shall be appropriately labeled with the facility identification number and location information.(c) A facility owner or operator who initiates a shipment of petroleum-substance waste from a treatment or storage facility shall comply with the generator standards contained in §334.496 of this title (relating to Shipping Procedures Applicable to Generators of Petroleum-Substance Waste) and §334.497 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators) and this subsection.(d) The periods of record retention required by this subsection may be extended by the agency during the course of any unresolved enforcement action regarding the regulated activity.(e) The following information, at a minimum, shall be maintained by the facility owner or operator:(1) documentation on all shipments of contaminated media received at the facility as specified on the waste manifest;(2) the method(s) of storage or treatment for all media received;(3) the method of reuse or disposal of all wastes removed from the facility including:(A) the location of final disposition;(B) the quantity and contaminant levels of wastes placed at any and every location;(C) the name, work address, and work phone number of the authorized representative for the receiving facility or location. If the receiving facility cannot be identified by street address, other specifics shall be included to adequately identify the exact location;(D) the name, work address, and work phone number of the authorized representative for the landowner at the receiving location;(E) documentation on the soil sampling and analytical methods, chain-of-custody, and all analytical results for the soil received at the facility and transported off-site or reused on-site;(F) a detailed description of the reuse methods;(G) the date(s) of transport off-site and the dates of reuse;(H) legible copies of the authorization from the landowner at the receiving location pursuant to §334.503 of this title (relating to Reuse of Petroleum-Substance Waste);(4) documentation on the operations at the facility, including:(A) information on the actual treatment efficiency of the unit;(B) documentation on the results of all air emissions monitoring;(C) any changes in the operations at the facility;(D) documentation on any releases, fires, or explosions and the measures taken to abate the situation;(5) monitoring data under §334.504 of this title (relating to Contaminant Assessment Program and Corrective Action) when required;(6) a summary of the types and volumes of any petroleum-substance waste received without manifests. This documentation shall include the following information:(A) the dates the facility received the wastes;(B) the leaking petroleum storage tank or other identification number of the generating facility, and the names and addresses of the tank owner or operator and the transporter, if available;(C) a description and the quantity of each petroleum-substance waste the facility received which was not accompanied by a Petroleum Storage Tank-Waste Manifest;(D) the method of storage and/or treatment for each petroleum-substance waste;(7) any other information deemed necessary by the agency.</content><note type="source"><p>Source Note: The provisions of this §334.500 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.501"><num value="334.501">§334.501</num><heading>Additional Reports</heading><content>The owner or operator of a Class A or Class B facility shall report to the agency within 24 hours of the discovery of any releases, fires, explosions, breakdowns, shutdowns, releases, or spills which result or may result in the discharge of any contaminants to the ground, surface water, or groundwater.</content><note type="source"><p>Source Note: The provisions of this §334.501 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.502"><num value="334.502">§334.502</num><heading>Design and Operating Requirements of Stockpiles and Land Surface Treatment Units</heading><content>(a) A stockpile or land surface treatment unit located at any storage or treatment facility or at any leaking petroleum storage tank site shall have an appropriate means of preventing any discharge or release of petroleum-substance waste or petroleum-substance waste constituents into any media. This shall be accomplished with:(1) a synthetic, impermeable liner that is designed, constructed, and installed to prevent any migration of petroleum-substance wastes out of the stockpile or land surface treatment unit into the adjacent subsurface soil, groundwater, or surface water at any time during the active life (including the closure period) of the stockpile, or land surface treatment unit. The liner shall be constructed of materials that do not allow petroleum-substance waste or petroleum-substance waste constituents to migrate into the liner itself or into the adjacent subsurface soil, groundwater, or surface water during the active life of the facility. The liner shall:(A) be constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydro geologic forces), physical contact with the hydrocarbons or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operations;(B) be placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, tearing, or uplift;(C) be installed to cover all surrounding earth likely to be in contact with the petroleum-substance waste or leachate; and(D) contain a leachate collection and removal system immediately above the liner that is designed, constructed, maintained, and operated to collect and remove leachate and rainwater from the stockpile or land surface treatment unit. The facility owner and operator shall specify the design and operating conditions which will ensure that the leachate depth over the liner does not exceed the depth of soil on the liner. The leachate collection and removal system shall be constructed of materials that are:(i) chemically resistant to the hydrocarbons managed in the pile and the leachate expected to be generated; and(ii) of sufficient strength and thickness to prevent collapse under the pressures exerted by overlaying petroleum-substance wastes, petroleum-substance waste cover materials, and any equipment used at the stockpile or treatment unit; and(iii) designed and operated to function without clogging through the scheduled life of the stockpile or land surface treatment unit; or(2) an alternate design or operating practice that is effective in preventing any release or discharge and is approved by the agency. The facility owner or operator shall demonstrate that the alternate design or operating practices, together with location characteristics, will prevent the migration of any petroleum- substance waste constituents into the soil, groundwater, or surface water at any future time. In deciding whether to approve the alternate design, the agency will consider:(A) the nature and quantity of the wastes;(B) the proposed alternate design and operation;(C) the hydro geologic setting of the facility, including a tentative capacity and thickness of the liners and soils present between the stockpile or land surface treatment unit and groundwater or surface water; and(D) all other factors which would influence the quality and mobility of the leachate produced and the potential for it to migrate to soil, groundwater, or surface water.(b) The facility owner or operator shall design, construct, operate, and maintain a run-on control system capable of preventing flow onto the active portion of the stockpile or land surface treatment unit.(c) The facility owner or operator shall design, construct, operate, and maintain a run-off management system to prevent flow from a stockpile or land surface treatment unit.(d) Collection and holding facilities (e.g., tanks or basins) associated with run-on and run-off control systems shall be emptied and managed expeditiously in accordance with applicable state and federal requirements after storms to maintain design capacity of the system.(e) If the stockpile or land surface treatment unit contains any particulate matter which may be subject to wind dispersal, the facility owner or operator shall cover or otherwise manage the stockpile or land surface treatment unit to control wind dispersal.(f) The agency may specify other design and operating practices that may be necessary to ensure that the requirements of this section are satisfied.(g) The facility owner or operator shall ensure that treatment is initiated on stockpiled soil within 90 days from the date of receipt at the facility and that the treated soil is removed from the facility for final disposition within 90 days after completing treatment.(h) In addition to the requirements specified in subsections (a) - (g) of this section, the facility owner or operator shall design, construct, operate, and maintain the land surface treatment unit to maximize the degradation, transformation, or immobilization of petroleum-substance waste constituents in the treatment area. At a minimum, the facility owner or operator shall specify the following items, if applicable, in the facility registration application:(1) the rate and method of petroleum-substance waste application to the treatment area;(2) measures to control soil pH;(3) measures to enhance microbial or chemical reactions (e.g., fertilization); and(4) measures to control the moisture content of the treatment area.(i) The facility owner or operator shall inspect the unit weekly and after storms to detect evidence of:(1) deterioration, malfunctions, or improper operation of run-on and run-off control systems; and(2) improper functioning of wind dispersal control measures.</content><note type="source"><p>Source Note: The provisions of this §334.502 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.503"><num value="334.503">§334.503</num><heading>Reuse of Petroleum-Substance Waste</heading><content>(a) Wastes that are intended for reuse are subject to all the applicable provisions of this subchapter, including, but not limited to, the following requirements. Sections 334.482, 334.496 - 334.500, and 334.502 of this title (relating to General Requirements; Shipping Procedures Applicable to Generators of Petroleum-Substance Waste; Recordkeeping and Reporting Procedures Applicable to Generators; Shipping Requirements Applicable to Transporters of Petroleum-Substance Waste; Shipping Requirements Applicable to Owners or Operators of Storage, Treatment, or Disposal Facilities; Record-keeping Requirements Applicable to Owners or Operators of Storage, Treatment, or Disposal Facilities; and Design and Operating Requirements of Stockpiles and Land Surface Treatment Units).(b) The recordkeeping and reporting requirement for any person who intends to reuse petroleum-substance wastes must require that person to maintain records and provide to the agency when requested such information deemed necessary by the agency to ensure compliance with the requirements of this subsection. This information shall include, but is not limited to:(1) identification, address, and name of the designated representative of the generating facility;(2) identification, address, and name of the designated representative for the receiving facility or location;(3) identification of the landowner of the receiving location or facility;(4) the quantity, type, and contaminant levels of the reused wastes;(5) documentation of the reuse methods and dates of reuse;(6) documentation that asphalt mix or road base mix meets the specifications required by the final user; and(7) documentation that the landowner of the receiving location has approved the use of the reused wastes on his property.(c) Reuse requirements are as follows.(1) Any person who intends to utilize petroleum-substance wastes for reuse must obtain written approval from the landowner of the land on which the wastes will be placed and from the agency as specified by this subsection. The landowner's approval shall be submitted to the agency upon request.(2) Petroleum-substance wastes shall be reused only in manners which are in accordance with §334.482 of this title and at contaminant levels specified by the agency.(3) Petroleum-substance wastes may be reused under the following conditions.(A) Petroleum-substance wastes may be utilized in cold-mix-emulsion bituminous paving at a cold-mix asphalt-producing facility registered under the terms of this subchapter. The petroleum-substance waste shall be mixed with aggregate or other suitable materials at a rate which will result in a mixture meeting or exceeding the specifications required by the final user. The petroleum-substance waste must contain less than 0.5 milligrams/kilograms (mg/kg) for each component of benzene, toluene, ethyl benzene, and total xylenes prior to mixing. Authorization for the facility must also be obtained from all other appropriate federal, state, or local governing agencies. Authorization from the owner of the road or other area where the asphalt is to be utilized must be obtained prior to laying the asphalt.(B) Petroleum-substance wastes may be utilized in asphalt mix at hot-mix asphalt-producing facilities registered under this subchapter. The petroleum-substance waste must contain less than 0.5 mg/kg for each component of benzene, toluene, ethyl benzene, and total xylenes prior to mixing. The petroleum-substance waste must be mixed with aggregate at a rate which will result in a mixture meeting or exceeding the specifications required by the final user. Authorization for the facility must also be obtained from all other appropriate federal, state, or local governing agencies. Authorization from the owner of the road or other area where the asphalt is to be utilized must be obtained prior to laying the asphalt.(C) Petroleum-substance wastes may be utilized in road base or parking lot stabilized base when the base will be covered with concrete or asphalt if the contaminant levels of the soil prior to mixing into the stabilized base are less than 0.5 mg/kg for each component of benzene, toluene, ethyl benzene, and total xylenes, and less than 500.0 mg/kg total petroleum hydrocarbons or at contaminant levels otherwise specified by the agency. The base must be mixed according to the specifications required by the final user. Soil which is not mixed into stabilized road base must meet the criteria for clean soil as specified by the agency to be spread on a road or parking lot. The generator must obtain prior written consent for the placement of the soil from the owner of the road (if different from the landowner).(D) Petroleum-substance wastes may be utilized, if appropriate, in road base or parking lot stabilized base when the base will not be covered with asphalt or concrete. To determine if the soil to be reused is appropriate for the application, analysis for contamination must be conducted as specified by this agency. The agency will give written approval for the particular reuse after ensuring that the implementation will, in the opinion of agency staff, adequately protect human health, safety, and the environment. The base must be mixed according to the specifications required by the final user. The base must be professionally mixed by a facility registered under the terms of this subchapter. Soil which is not mixed into stabilized road base must meet the criteria for clean soil to be spread on a road or parking lot. The generator must obtain prior written consent for the placement of the soil from the owner of the road (if different from the landowner).(E) Petroleum-substance wastes may, if appropriate, be used as fill. To determine if the soil to be reused is appropriate for the application, analysis for contamination must be conducted as specified by this agency. The agency will give written approval for the particular reuse after ensuring that the implementation will, in the opinion of agency staff, adequately protect human health, safety, and the environment. The landowner at the receiving site (if different from the original owner of the petroleum substance contaminated soil) must give written consent for this activity. Fill for tank hold bedding and backfill for tank systems must meet the requirements of §334.46(a)(5) of this title (relating to Installation Standards for New Underground Storage Tank Systems).</content><note type="source"><p>Source Note: The provisions of this §334.503 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective September 23, 1999, 24 TexReg 7422; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective July 12, 2001, 26 TexReg 5031; amended to be effective March 19, 2009, 34 TexReg 1860.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.504"><num value="334.504">§334.504</num><heading>Contaminant Assessment Program and Corrective Action</heading><content>(a) The facility owner or operator shall conduct an assessment when, in the opinion of the agency, there exists a possibility of migration of contaminants into or adjacent to waters in the state. The assessment shall be capable of determining:(1) whether petroleum-substance waste or petroleum-substance waste constituents have entered the groundwater, surface water, or soils.(2) the rate and extent of migration of any petroleum-substance waste or petroleum-substance waste constituents in the soil, groundwater, or surface water; and(3) the concentrations of petroleum-substance waste or petroleum-substance waste constituents in the soil, groundwater, or surface water.(b) The owner or operator of the facility shall conduct corrective action at the facility when, in the opinion of the agency, petroleum-substance waste constituents exist in the soil, groundwater, or nearby surface water at levels which are harmful to human health and safety or the environment.(c) The corrective action program shall be capable of preventing the migration of contaminants and shall prevent the contaminants from exceeding the levels determined by the agency.(d) The facility owner or operator shall ensure that the corrective action measures under this subsection shall be initiated and completed within a reasonable period of time as determined by the agency considering the extent of contamination. The agency may issue additional directives should the corrective action activities prove to not be effective in reducing the contaminant levels at a sufficient rate.(e) The facility owner or operator shall report in writing to the agency the effectiveness of the corrective action program. The facility owner or operator shall submit these reports to the agency's central office and to the appropriate agency regional office upon request by the agency.</content><note type="source"><p>Source Note: The provisions of this §334.504 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.505"><num value="334.505">§334.505</num><heading>Security</heading><content>(a) The facility owner or operator shall prevent unauthorized entry by persons or animals onto the facility.(b) A facility shall have:(1) a 24-hour surveillance system (e.g., television monitoring or surveillance by guards or facility personnel) which continuously monitors and controls entry onto the active portion of the facility; or(2) an artificial or natural barrier (e.g., a fence in good repair or a fence combined with a cliff), which completely surrounds the active portion of the facility; and(3) a means to control entry, at all times, through the gates or other entrances to the active portion of the facility (e.g., an attendant, television monitors, locked entrance, or controlled roadway access to the facility).(c) A sign with the legend, "Caution--Unauthorized Personnel Keep Out" shall be posted at each entrance to the active portion of a facility, and at other locations, in sufficient numbers to be seen from any approach to the active portion. The legend shall be written in English and in any other language predominant in the area surrounding the facility, and shall be legible from a distance of at least 25 feet. Existing signs with a legend other than "Caution--Unauthorized Personnel Keep Out" may be used if the legend on the sign indicates that only authorized personnel are allowed to enter the active portion, and that entry onto the active portion can be dangerous.(d) The owner or operator of the facility shall submit details of the proposed security measures in the application for registration.</content><note type="source"><p>Source Note: The provisions of this §334.505 adopted to be effective December 27, 1996, 21 TexReg 12177.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.506"><num value="334.506">§334.506</num><heading>Contingency Plan</heading><content>(a) Each facility owner or operator shall have a contingency plan for each facility. The contingency plan shall be designed to minimize hazards to human health or the environment from fires, explosions, or any release of petroleum-substance waste or petroleum-substance waste constituents to air, soil, groundwater, or surface water.(b) The provisions of the plan shall be carried out immediately whenever there is a fire, explosion, or release of petroleum-substance waste or petroleum-substance waste constituents which could threaten human health or the environment.(c) The contingency plan shall describe the actions facility personnel shall take in order to respond to fires, explosions, or any release of petroleum-substance waste or petroleum-substance waste constituents to air, soil, groundwater, or surface water at the facility.(d) The plan shall list names, addresses, and phone numbers (office and home) of all persons qualified to act as facility emergency coordinators and this list shall be kept up to date. Where more than one person is listed, one shall be named as primary emergency coordinator and others shall be listed in the order in which they will assume responsibility as alternates.(e) The plan shall include a list of all emergency equipment at the facility, such as fire extinguishing systems, spill control equipment, communications, and alarm systems (internal and external). This list shall be kept up to date. In addition, the plan shall include the location and a physical description of each item on the list, and a brief outline of its capabilities.(f) The plan shall include an evacuation plan for facility personnel where there is a possibility that evacuation could be necessary. This plan shall describe signal(s) to be used to begin evacuation, evacuation routes, and alternate evacuation routes (in cases where the primary routes could be blocked by release of petroleum-substance waste or fires).(g) A legible copy of the contingency plan and all revisions to the plan shall be:(1) submitted to the agency with the application for registration;(2) maintained at the facility; and(3) submitted to all local fire departments or emergency response officials who may be called upon to provide emergency services.(h) The contingency plan shall be reviewed, and immediately amended, if necessary, whenever:(1) the facility registration is revised;(2) the plan fails in an emergency;(3) the facility changes its design, construction, operations, maintenance, or other circumstances in a way that materially increases the potential for fires, explosions, or release of petroleum-substance waste or petroleum-substance waste constituents, or changes the response necessary in an emergency;(4) the list of emergency coordinators changes; or(5) the list of emergency equipment changes.</content><note type="source"><p>Source Note: The provisions of this §334.506 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.507"><num value="334.507">§334.507</num><heading>Emergency Procedures</heading><content>(a) At all times, there shall be at least one employee either on the facility premises or on call (i.e., available to respond to an emergency by reaching the facility within a short period of time) with the responsibility for coordinating all emergency response measures. This emergency coordinator shall be thoroughly familiar with all aspects of the facility's contingency plan, all operations and activities at the facility, the location and characteristics of waste handled, the location of all records within the facility, and the facility layout. In addition, this person shall have the authority to commit the resources needed to carry out the contingency plan.(b) Whenever there is an imminent or actual emergency situation, the emergency coordinator (or his designee when the emergency coordinator is on call) shall immediately:(1) activate internal facility alarms or communication systems, where applicable, to notify all facility personnel; and(2) notify appropriate state or local agencies with designated response roles if their help is needed.(c) Whenever there is a release, fire, or explosion, the emergency coordinator shall immediately identify the character, exact source, amount, and areal extent of any released materials. The emergency coordinator may do this by observation or review of facility records or manifests, and, if necessary, by chemical analysis.(d) Concurrently, the emergency coordinator shall assess possible hazards to human health or the environment that may result from the release, fire, or explosion. This assessment shall consider both direct and indirect effects of the release, fire, or explosion (e.g., the effects of any toxic, irritating, or asphyxiating gases that regenerated, or the effects of any surface water run-off from water or chemical agents used to control fire and heat-induced explosions).(e) If the emergency coordinator determines that the facility has had a release, fire, or explosion which could threaten human health or the environment outside the facility, the emergency coordinator shall report his findings as follows.(1) If the emergency coordinator's assessment indicates that evacuation of local areas may be advisable, the emergency coordinator shall immediately notify appropriate local authorities. The emergency coordinator shall be available to help appropriate officials decide whether local areas should be evacuated.(2) The emergency coordinator shall notify as soon as possible, but not later than 24 hours: during working hours, the agency regional office; during non-working hours, the Texas Emergency Response Unit at (512) 239-2507 or the State Toll Free Emergency Hotline at 1-800-832-8224; and if federal reportable spill quantities are exceeded, the National Response Center (using their 24-hour toll free number 1-800-424-8802). The report shall include:(A) name and telephone number of reporter;(B) name and address of facility;(C) time and type of incident (e.g., release, fire);(D) name and quantity of material(s) involved, to the extent known; and(E) the possible hazards to human health or the environment outside the facility.(f) During an emergency, the emergency coordinator shall take all reasonable measures necessary to ensure that fires, explosions, and releases do not occur, recur, or spread to other petroleum-substance waste at the facility. These measures shall include, where applicable, stopping processes and operations, collecting and containing released waste, and removing or isolating containers.(g) If the facility stops operations in response to a fire, explosion, or release, the emergency coordinator shall monitor for leaks, pressure buildup, gas generation, or ruptures in valves, pipes, or other equipment, wherever this is appropriate.(h) Immediately after an emergency, the emergency coordinator shall provide for treating, storing, and/or disposing of recovered water, contaminated soil and surface water, and any other material that results from a release, fire, or explosion at the facility.(i) The emergency coordinator shall ensure that, in the affected area(s) of the facility, all emergency equipment listed in the contingency plan is cleaned and fit for its intended use before operations are resumed.(j) The facility owner or operator shall notify the agency and appropriate state and local authorities that the facility is in compliance with subsection (h) of this section before operations are resumed in the affected areas(s) of the facility.(k) The facility owner or operator shall note in the operating record the time, date, and details of any incident that requires implementing the contingency plan. Within 15 days after the incident, the facility owner or operator shall submit a written report on the incident to the agency. The report shall include:(1) name, address, and telephone number of the facility owner or operator;(2) name, address, and telephone number of the facility;(3) the facility's registration number;(4) date, time, and type of incident (e.g. fire, explosion);(5) name and quantity of material(s) involved;(6) the extent of injuries, if any;(7) an assessment of actual or potential hazards to human health or the environment, where this is applicable; and(8) estimated quantity and disposition of recovered material that resulted from the incident.</content><note type="source"><p>Source Note: The provisions of this §334.507 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scK/s334.508"><num value="334.508">§334.508</num><heading>Closure Requirements Applicable to Class A and Class B Facilities</heading><content>(a) The facility owner or operator shall submit his closure plan to the agency for approval with the application for registration.(b) In the closure plan, the facility owner or operator shall address the following objectives and indicate how they will be achieved:(1) removal and decontamination of all structures, equipment, or improvements which will no longer be utilized at the facility;(2) removal and proper disposal or treatment and reuse of all petroleum-substance wastes from the facility; and(3) removal or treatment of any petroleum-substance waste and petroleum-substance waste constituents which exist above the established cleanup levels that have been released from the facility into the soil, groundwater, or surface water.(c) During the closure period, the facility owner or operator of a petroleum-substance treatment facility shall:(1) continue the contaminant assessment or corrective action at the facility as directed by the agency;(2) maintain the run-on and run-off control systems required under §334.502 of this title (relating to Design and Operating Requirements of Stockpiles and Land Surface Treatment Units);(3) control wind dispersal of particulate matter which may be subject to wind dispersal.(d) When closure is completed, the facility owner or operator shall submit to the agency for approval certification both by the facility owner or operator and by an independent qualified hydro geologist, geologist, or an independent registered professional engineer, that the facility has been closed in accordance with the specifications in the approved closure plan.(e) The facility owner or operator shall prepare a written estimate, in current dollars, of the cost of closing the facility in accordance with the closure plan as specified in subsections (a) and (b) of this section. The closure cost estimate shall equal the cost of closing at the point in the facility's operating life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan. The closure cost estimate shall be based on the costs to the facility owner or operator of hiring a third party to close the facility. A third party is a party who is neither a parent nor a subsidiary for the facility owner or operator. Notwithstanding other closure costs, such estimate shall also include the costs associated with third party removal, shipment off-site, and treatment or disposal off-site of the following wastes to an authorized storage, treatment, or disposal facility:(1) maximum inventory of wastes possible in storage and/or treatment units;(2) any contaminated soils, groundwater, or surface water generated as a result of releases at the site;(3) wastes generated as a result of closure activities;(4) contaminated storm water or leachate.(f) The closure cost estimate may not incorporate a positive cost that may be realized by the sale of petroleum-substance wastes, facility structures or equipment, land, or other facility assets at the time of partial or final closures rather than or in addition to waste disposal and clean-up costs. The facility owner or operator may also not incorporate a zero cost for petroleum-substance waste that might have economic value rather than the waste disposal cost.(g) The facility owner or operator shall revise the closure cost estimate whenever a change in the closure plan increases the cost of closure. The revised closure cost estimate must be adjusted for inflation as specified in Chapter 37, Subchapter B of this title (relating to Financial Assurance Requirements for Closure, Post Closure, and Corrective Action).(h) The facility owner or operator shall keep the following at the facility during the operating life of the facility: the latest closure cost estimate prepared in accordance with subsections (e) and (f) of this section and, when this estimate has been adjusted for inflation, the latest adjusted closure cost estimate.(i) For the remaining financial assurance requirements, see Chapter 37, Subchapter K of this title (relating to Financial Assurance Requirements for Class A or B Petroleum-Substance Contaminated Soil Storage, Treatment, or Reuse Facilities).</content><note type="source"><p>Source Note: The provisions of this §334.508 adopted to be effective December 27, 1996, 21 TexReg 12177; amended to be effective March 21, 2000, 25 TexReg 2390; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c334/scL"><num value="L">SUBCHAPTER L</num><heading>OVERPAYMENT PREVENTION</heading><section identifier="/us/state/tx/tac/t30/p1/c334/scL/s334.530"><num value="334.530">§334.530</num><heading>Purpose and Applicability of the Subchapter</heading><content>(a) Purpose. The purpose of this subchapter is to establish procedures regarding the audit of money expended from the Petroleum Storage Tank Remediation Account, to assure the most efficient use of the money available and to provide the most effective protection to the environment and public health and safety.(b) Applicability. This subchapter applies to all corrective actions, paid for in whole or in part by the Petroleum Storage Tank Remediation Account.</content><note type="source"><p>Source Note: The provisions of this §334.530 adopted to be effective August 15, 1994, 19 TexReg 5843; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scL/s334.531"><num value="334.531">§334.531</num><heading>Cooperation with Audit; False Submittals</heading><content>(a) The party who has entered into a contract with the agency in accordance with this chapter to perform corrective action work, eligible owner or operator, and any party who received reimbursement under §334.302(k) of this title (relating to General Conditions and Limitations Regarding Reimbursement), any Registered Corrective Action Specialist, and any contractor or subcontractor whose invoices or other documents are submitted, or are required to be submitted, with the Application for Reimbursement shall cooperate fully with any audit or investigation by the agency regarding the work performed, the costs charged, and/or amounts paid and shall provide copies of all documents relating to an audited claim to the agency on request and at no charge.(b) If the documentation or information requested by the agency under subsection (a) of this section to support an audited claim is not provided, the unsupported portion of the claim will be the subject of a Notice of Overpayment under §334.534 of this title (relating to Notice of Overpayment).(c) No person shall knowingly submit false information to the agency as part of any materials required to be submitted under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §334.531 adopted to be effective August 15, 1994, 19 TexReg 5843; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scL/s334.532"><num value="334.532">§334.532</num><heading>Payments</heading><content>(a) Payment by the agency of a claim for money from the Petroleum Storage Tank Remediation Account means that the claim is subject to post-payment audit.(b) By making payment of claims to eligible persons (see §334.310 of this title (relating to Requirements for Eligibility)), the executive director makes no statement or admission that the payments are for necessary, reimbursable, or allowable costs, as those terms are defined by this chapter, nor that the corrective action taken was not in excess of agency cleanup standards for effective protection of the environment and public health and safety.</content><note type="source"><p>Source Note: The provisions of this §334.532 adopted to be effective August 15, 1994, 19 TexReg 5843; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scL/s334.533"><num value="334.533">§334.533</num><heading>Audits</heading><content>(a) Audits of claims and associated documents will be conducted in accordance with auditing standards as provided by Texas Water Code, §26.35735. Such audits may occur prior to or after claims have been paid. Such audits may include an investigation into whether activities performed and/or the amounts claimed were:(1) eligible to be paid as provided by Texas Water Code, §26.3573, and allowable under Subchapters H and M of this chapter (relating to Reimbursement Program; and Reimbursable Cost Specifications for the Petroleum Storage Tank Reimbursement Program);(2) reimbursable under Subchapter H of this chapter, §334.560 of this title (relating to Reimbursable Cost Specifications), and §334.309 of this title (relating to Reimbursable Cost) (for work performed on or after June 6, 1993), or reasonable (for work performed prior to June 6, 1993); and(3) actual costs in §334.306(b)(6) of this title (relating to Form and Contents of Application). For the purposes of this subchapter, actual cost is the actual amount paid for actual work performed, net of any discounts, offsets, or other reductions to the amount paid. Actual cost includes associated overhead and reasonable profit.(b) An audit may also include an investigation into whether, and by what means, the amounts claimed have been paid in full by the claimant to the person(s) who actually performed the corrective action work for the claimed amount. The investigation may include a review of any and all documents relating to the payment of any amounts claimed, including those of any subcontractors who performed any of the corrective action work. Upon conclusion of the audit, any amounts the audit reveals have not been actually paid to the person(s) performing the corrective action work, rather than evidenced only by a promise to pay, must be included in the Notice of Overpayment issued under §334.534 of this title (relating to Notice of Overpayment).</content><note type="source"><p>Source Note: The provisions of this §334.533 adopted to be effective August 15, 1994, 19 TexReg 5843; amended to be effective November 8, 1995, 20 TexReg 8800; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scL/s334.534"><num value="334.534">§334.534</num><heading>Notice of Overpayment</heading><content>(a) If the agency conducts an audit or investigation and concludes that payment of a claim was for an amount which exceeded the amount provided for under this chapter, the agency shall prepare a notice of overpayment. The notice of overpayment shall briefly summarize the findings of the audit and identify the amounts which were overpaid. If the executive director determines that the overpayment was the result of incorrect, incomplete, or inaccurate documentation submitted by the claimant, then the executive director may include in the notice of overpayment a charge for the claimant to pay interest, calculated at New York Prime, plus two points, dating from the date of overpayment by the Texas Commission on Environmental Quality (TCEQ), or its predecessor agency, to the date of repayment to the TCEQ. Interest shall be calculated each month using the interest rate determined on the first business day of each month.(b) The notice of overpayment will be delivered to the claimant (either the party who contracted directly with the TCEQ for corrective action work, the eligible owner or operator, or the party assigned the reimbursement right under §334.302(i) - (k) of this title (relating to General Conditions and Limitations Regarding Reimbursements; Assignments).(c) Upon receipt of a notice of overpayment, the recipient shall submit a check returning the amount of overpayment to the TCEQ.(d) All checks rendered to return overpayments shall be made out to "The State of Texas-Petroleum Storage Tank Remediation Account" and mailed to the address specified on the notice of overpayment.</content><note type="source"><p>Source Note: The provisions of this §334.534 adopted to be effective August 15, 1994, 19 TexReg 5843; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scL/s334.535"><num value="334.535">§334.535</num><heading>Objections to the Notice of Overpayment and Formal Petition for Hearing</heading><content>(a) If any person receiving the notice of overpayment disputes any portion of the amount to be repaid to the commission, he or she must, within 30 days of receipt of the notice of overpayment, file a petition for hearing with the chief clerk in the manner prescribed generally by this title for filing petitions with the commission and shall serve a copy of the petition on the executive director.(b) The petition must assert which funds the party is entitled to retain, and why such funds represent claims paid under the requirements of this chapter. At hearing, the petitioner must prove that the audited claims or portions of claims were for amounts paid under the requirements of this chapter.(c) If a person does not object to a notice of overpayment, in whole or in part, as prescribed by this section, then all objections to the notice are waived.(d) Any amount not specifically disputed in accordance with this section must be returned within 30 days of receipt of the notice of overpayment.</content><note type="source"><p>Source Note: The provisions of this §334.535 adopted to be effective August 15, 1994, 19 TexReg 5843; amended to be effective November 23, 2000, 25 TexReg 11442; amended to be effective November 18, 2004, 29 TexReg 10532.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scL/s334.536"><num value="334.536">§334.536</num><heading>Hearing by the Commission</heading><content>Following receipt of a petition, the commission shall conduct a hearing on the petition. The proceedings shall be governed by the rules of the commission.</content><note type="source"><p>Source Note: The provisions of this §334.536 adopted to be effective August 15, 1994, 19 TexReg 5843.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scL/s334.537"><num value="334.537">§334.537</num><heading>Failure To Return Overpayment or Cooperate with Audit or Investigation</heading><content>(a) If the overpayment has not been returned to the agency, or objected to by the recipient, in accordance with the requirements of this subchapter, the executive director shall file a petition seeking an order from the commission to compel payment.(b) All commission orders issued pursuant to this subchapter shall be enforceable in the same manner as any order issued pursuant to the Texas Water Code, Chapter 26, including administrative penalties of up to $10,000 per day of violation.(c) The executive director may seek an order from the commission to compel cooperation with an audit or investigation at any time.</content><note type="source"><p>Source Note: The provisions of this §334.537 adopted to be effective August 15, 1994, 19 TexReg 5843; amended to be effective November 23, 2000, 25 TexReg 11442.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scL/s334.538"><num value="334.538">§334.538</num><heading>Administrative Penalties and Other Actions</heading><content>Nothing in this subchapter precludes the commission from issuing orders, assessing administrative penalties, or taking any other action permitted by law against any person for violation of the Texas Water Code, commission rules, or orders of the commission.</content><note type="source"><p>Source Note: The provisions of this §334.538 adopted to be effective August 15, 1994, 19 TexReg 5843.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c334/scM"><num value="M">SUBCHAPTER M</num><heading>REIMBURSABLE COST SPECIFICATIONS FOR THE PETROLEUM STORAGE TANK REIMBURSEMENT PROGRAM</heading><section identifier="/us/state/tx/tac/t30/p1/c334/scM/s334.560"><num value="334.560">§334.560</num><heading>Reimbursable Cost Specifications</heading><content>The following Reimbursable Cost Specifications for the Petroleum Storage Tank Reimbursement Program are in effect as of June 30, 2011. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §334.560 adopted to be effective October 22, 1997, 22 TexReg 10324; amended to be effective November 18, 2004, 29 TexReg 10532; amended to be effective June 30, 2011, 36 TexReg 3925.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c334/scN"><num value="N">SUBCHAPTER N</num><heading>OPERATOR TRAINING</heading><section identifier="/us/state/tx/tac/t30/p1/c334/scN/s334.601"><num value="334.601">§334.601</num><heading>Purpose and Applicability</heading><content>(a) This subchapter establishes training requirements for different classes of underground storage tank (UST) facility operators to enhance the protection of the state's groundwater and surface water resources from environmental contamination that could result from any releases of harmful substances stored in such systems, and to minimize threats to human health and safety which could result from the improper operation of a UST facility.(b) Owners and operators of regulated UST systems must comply with the operator training requirements listed in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §334.601 adopted to be effective March 17, 2011, 36 TexReg 1675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scN/s334.602"><num value="334.602">§334.602</num><heading>Designation and Training of Classes of Operators</heading><content>(a) Owners or operators shall identify and designate for each underground storage tank (UST) facility including unmanned facilities, at least one named individual for each class of operator - Class A, Class B, and Class C. All individuals designated as a Class A, B, or C operator shall, at a minimum, be trained and certified in accordance with this subchapter. For the purposes of this subchapter, the terms "Class A operator," "Class B operator," "Class C operator," "certified operator, " or "designated operator" are terms specific to the training requirements of this subchapter. The term "operator" used without these descriptors is the same as the term "operator" used in this chapter generally and as specifically defined in §334.2(75) of this title (relating to Definitions).(1) Owners and operators may designate different individuals for each class of operator, or one individual for more than one of the operator classes.(2) Any individual designated for more than one operator class shall be trained and certified for each operator class, except that training and certification as a Class B operator also entitles that individual to certification as a Class A operator.(3) An individual may be designated as a Class A operator for one or more facilities. An individual may be designated as a Class B operator for one or more, but not to exceed 50 facilities. An individual Class C operator must be specifically trained for each facility.(4) During hours of operation, UST facilities must have at least one certified operator (either a Class A, Class B, or Class C operator) present at the UST facility, except when a UST facility is unmanned. A UST facility is considered unmanned when during the normal course of business there is routinely no attendant present at the facility who could respond to alarms or emergencies related to the UST system. (Examples of unmanned UST facilities include, but are not limited to, card lock or card access fueling stations, telecommunication towers or utility transfer stations serviced by emergency generator USTs, and unattended UST systems located at industrial facilities.) Unmanned facilities must have weather resistant signage clearly visible from any dispenser which instructs users with regard to basic safety procedures, provides the customer with a 24-hour telephone contact number monitored by a Class A, B, or C operator for the facility and provides instruction on when to call 911.(b) The three classes of operators are identified as follows.(1) Class A operator.(A) Functions. A Class A operator of a UST facility is an individual who typically has primary responsibility for ensuring the proper operation and maintenance of the UST systems, particularly in the capacity of managing resources and personnel necessary to achieve and maintain compliance with all UST regulations.(B) Qualifications and training. Class A operators must be trained in and have a general knowledge of the requirements of applicable UST regulations, including, but not limited to registration, system components, product compatibility, spill and overfill prevention, corrosion protection, release detection, testing and inspections, recordkeeping, notification, release reporting and response, temporary and permanent closure, operator training, and financial responsibility.(2) Class B operator.(A) Functions. A Class B operator of a UST facility is an individual who ensures the implementation of all applicable requirements of these regulations in the field and implements the day-to-day aspects of the operation and maintenance of, and recordkeeping for, UST systems.(B) Qualifications and training. Class B operators must be trained in and have detailed knowledge of the requirements of applicable UST regulations, including, but not limited to registration, system components, product compatibility, spill and overfill prevention, corrosion protection, release detection, testing and inspections, recordkeeping, notification, release reporting and response, temporary and permanent closure, operator training and financial responsibility. A UST facility owner or operator may designate as its Class B operator a third party (i.e. an individual who is an independent contractor or consultant and is not affiliated with the facility owner or operator) only if that individual is (in accordance with Chapter 334, Subchapter I and with Chapter 30, Subchapter I of this title (relating to Underground Storage Tank On-Site Supervisor Licensing and Contractor Registration; and Underground Storage Tank On-Site Supervisor Licensing and Contractor Registration, respectively)) also a licensed UST on-site supervisor who holds a current "A" or "A/B" license and who either is, or is employed by, a registered UST contractor. However, designation of an independent or not affiliated Class B operator in this manner does not also entitle that individual to certification as a Class A operator for a facility.(3) Class C operator.(A) Function. A Class C operator of a UST facility is an individual designated by the UST system owner who typically controls the dispensing of fuel at the facility and is responsible for initial response to alarms, releases, spills, overfills or threats to the public or to the environment.(B) Training. Class C operators must be trained in both general and facility-specific emergency response procedures, such as: the operation of emergency shut-off equipment; the initial response procedures following system alarm warnings; the appropriate first response actions to releases, spills, or overfills; and the notification procedures to emergency responders and to the designated Class A and Class B operators of a UST facility.</content><note type="source"><p>Source Note: The provisions of this §334.602 adopted to be effective March 17, 2011, 36 TexReg 1675; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scN/s334.603"><num value="334.603">§334.603</num><heading>Acceptable Operator Training and Certification Processes</heading><content>(a) Training. Operator training must fulfill the training requirements described for each class of operator in §334.602 of this title (relating to Designation and Training of Classes of Operators). The following is a list of acceptable approaches to meet the operator training requirements.(1) Acceptable training for Class A and Class B operators. Class A and Class B operators must complete a Texas Commission on Environmental Quality (TCEQ) approved operator training course or process that includes the information listed in §334.602(b)(1) or (2) of this title, respectively. Courses or processes may include in-person or on-line training performed by, contracted for, or approved by the TCEQ, and must include an evaluation of operator knowledge through testing, practical demonstration, or other tools deemed acceptable by the TCEQ. In order for a non-contracted provider to be approved by the agency, the provider of a training course or process must be sponsored by an association or industry organization recognized nationwide or statewide with regard to its affiliation with regulated petroleum underground storage tank (UST) systems. All providers will also be required to provide training documentation, including on-going maintenance of records of certified operators. Those records will be required to be accessible to the agency on an on-going basis.(2) Acceptable training for Class C operators.(A) Class B operators must provide training or ensure that the UST facility's Class C operators otherwise complete training in emergency procedures that includes the information listed in §334.602(b)(3) of this title. Class C operator training programs may include in-class, hands-on, on-line, or any other training format deemed acceptable by the Class B operator.(B) Class A and Class B operators must ensure that site-specific emergency procedures are maintained in an easily accessible location at the UST facility which is immediately available to the Class C operator, and that site-specific notices that include the location of emergency shut-off devices and appropriate emergency contact telephone numbers are posted in a prominent area at the UST facility that is easily visible to the Class C operator. For the purposes of this subsection, the phrase "easily accessible location" means located in a place and manner that allows a Class C operator quick and immediate access to site-specific emergency procedures.(b) Certification. Operators are considered certified operators after successfully completing one of the training processes listed in subsection (a) of this section.(1) Class A and Class B operators. Approved training providers must provide verification to all Class A and Class B operators who have successfully completed training, in the form of a written or printable electronic training certificate stating the classification and the date it was obtained. Owners and operators must ensure that training certificates are maintained at each facility, with copies of initial or new certificates provided to the TCEQ at the time that annual self-certification is required for that facility.(2) Class C operators. A designated Class B operator for a given facility must provide the facility owner or operator with signed and dated written verification in the form of a list of all Class C operators who have been trained for that facility, which includes the date of that training. Owners and operators must ensure that a current and correct list of trained Class C operators is maintained at each facility.</content><note type="source"><p>Source Note: The provisions of this §334.603 adopted to be effective March 17, 2011, 36 TexReg 1675; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scN/s334.604"><num value="334.604">§334.604</num><heading>Operator Training Deadlines</heading><content>(a) No later than August 8, 2012, owners or operators of underground storage tank (UST) facilities must designate at least one Class A, Class B, and Class C operator for each facility who has completed an acceptable operator training course as specified in §334.603 of this title (relating to Acceptable Operator Training and Certification Processes).(b) Class A or Class B operators designated by a UST facility owner or operator after August 8, 2012, must complete an acceptable operator training course as specified in §334.603 of this title, prior to assuming operation and maintenance responsibilities at the UST facility.(c) Class C operators designated by a UST facility owner or operator after August 8, 2012, must complete an acceptable operator training course as specified in §334.603 of this title, prior to assuming unsupervised responsibility for responding to emergencies at UST system facilities.</content><note type="source"><p>Source Note: The provisions of this §334.604 adopted to be effective March 17, 2011, 36 TexReg 1675.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scN/s334.605"><num value="334.605">§334.605</num><heading>Operator Training Frequency</heading><content>(a) Certified Class A and Class B operators must be re-trained in accordance with §334.602 and §334.603 of this title (relating to Designation and Training of Classes of Operators; and Acceptable Operator Training and Certification Processes, respectively) within three years of their last training date.(b) Certified Class C operators must be re-trained in accordance with §334.602 and §334.603 of this title within three years of their last training date. In addition, Class C operator training is only applicable at the specific facility for which the training was provided.(c) If an underground storage tank (UST) facility receives a notice of violation and the agency determines that the UST facility is in significant noncompliance, the designated Class B operators for that UST facility, must attend either a Texas Commission on Environmental Quality (TCEQ) approved compliance class that addresses the noted noncompliant areas or an acceptable operator training course as specified in §334.603 of this title, within the time frame specified by the TCEQ for that violation. Class B operators are not, however, required to attend such training more than once every 12 months, regardless of the number of their designated facilities found in violation. (For the purposes of this subchapter, "significant noncompliance" is defined as the failure to provide one or more of the following in accordance with applicable TCEQ rule or Environmental Protection Agency Significant Operational Compliance guidelines: release detection, spill/overfill prevention, corrosion protection, or financial assurance.)(d) Regardless of the three-year re-training requirement in subsection (a) of this section, certified Class A and Class B operators must be re-trained by January 1, 2020 with a course submitted to and approved by TCEQ after April 1, 2018.</content><note type="source"><p>Source Note: The provisions of this §334.605 adopted to be effective March 17, 2011, 36 TexReg 1675; amended to be effective May 31, 2018, 43 TexReg 3390.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c334/scN/s334.606"><num value="334.606">§334.606</num><heading>Documentation of Operator Training</heading><content>Owners and operators of underground storage tank facilities (except unmanned facilities) must maintain required training certification documentation as described in §334.603(b) of this title (relating to Acceptable Operator Training and Certification Processes) on-site and must provide it upon request to a Texas Commission on Environmental Quality (TCEQ) or TCEQ-authorized investigator. Documentation may be maintained electronically off-site if that facility has the capability of producing a clear printed copy which can be provided to a TCEQ or TCEQ-authorized investigator within 72 hours of the time of the investigation. Owners and operators of unmanned facilities must provide documentation as requested by a TCEQ investigator or TCEQ-authorized investigator.</content><note type="source"><p>Source Note: The provisions of this §334.606 adopted to be effective March 17, 2011, 36 TexReg 1675.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c335"><num value="335">CHAPTER 335</num><heading>INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scA"><num value="A">SUBCHAPTER A</num><heading>INDUSTRIAL SOLID WASTE AND MUNICIPAL HAZARDOUS WASTE IN GENERAL</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.1"><num value="335.1">§335.1</num><heading>Definitions</heading><content>In addition to the terms defined in Chapter 3 of this title (relating to Definitions), the following words and terms, when used in this chapter, have the following meanings.(1) Aboveground tank--A device meeting the definition of "Tank" in this section and that is situated in such a way that the entire surface area of the tank is completely above the plane of the adjacent surrounding surface and the entire surface area of the tank (including the tank bottom) is able to be visually inspected.(2) Act--Texas Health and Safety Code, Chapter 361.(3) Active life--The period from the initial receipt of hazardous waste at the facility until the executive director receives certification of final closure.(4) Active portion--That portion of a facility where processing, storage, or disposal operations are being or have been conducted after November 19, 1980, and which is not a closed portion. (See also "Closed portion" and "Inactive portion.")(5) Activities associated with the exploration, development, and production of oil or gas or geothermal resources--Activities associated with:(A) the drilling of exploratory wells, oil wells, gas wells, or geothermal resource wells;(B) the production of oil or gas or geothermal resources, including:(i) activities associated with the drilling of injection water source wells that penetrate the base of usable quality water;(ii) activities associated with the drilling of cathodic protection holes associated with the cathodic protection of wells and pipelines subject to the jurisdiction of the commission to regulate the production of oil or gas or geothermal resources;(iii) activities associated with gasoline plants, natural gas or natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants;(iv) activities associated with any underground natural gas storage facility, provided the terms "Natural gas" and "Storage facility" shall have the meanings set out in the Texas Natural Resources Code, §91.173;(v) activities associated with any underground hydrocarbon storage facility, provided the terms "Hydrocarbons" and "Underground hydrocarbon storage facility" shall have the meanings set out in the Texas Natural Resources Code, §91.201; and(vi) activities associated with the storage, handling, reclamation, gathering, transportation, or distribution of oil or gas prior to the refining of such oil or prior to the use of such gas in any manufacturing process or as a residential or industrial fuel;(C) the operation, abandonment, and proper plugging of wells subject to the jurisdiction of the commission to regulate the exploration, development, and production of oil or gas or geothermal resources; and(D) the discharge, storage, handling, transportation, reclamation, or disposal of waste or any other substance or material associated with any activity listed in subparagraphs (A) - (C) of this paragraph, except for waste generated in connection with activities associated with gasoline plants, natural gas or natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants if that waste is a hazardous waste as defined by the administrator of the United States Environmental Protection Agency in accordance with the Federal Solid Waste Disposal Act, as amended (42 United States Code, §§6901 et seq.).(6) Acute hazardous waste--Hazardous wastes that meet the listing criteria in 40 Code of Federal Regulations (CFR) §261.11(a)(2) and therefore are either listed in 40 CFR §261.31 with the assigned hazard code of (H) or are listed in 40 CFR §261.33(e).(7) Administrator--The administrator of the United States Environmental Protection Agency or his designee.(8) Advanced recycling facility--A manufacturing facility that receives, stores, and converts post-use polymers and recoverable feedstocks into valuable raw materials, valuable intermediate products, or valuable final products using advanced recycling technologies and processes including pyrolysis, gasification, solvolysis, and depolymerization. An advanced recycling facility is not a solid waste facility, final disposal facility, waste-to-energy facility, or incinerator.(9) Aerosol can--A non-refillable receptacle containing a gas compressed, liquefied, or dissolved under pressure, the sole purpose of which is to expel a liquid, paste, or powder and fitted with a self-closing release device allowing the contents to be ejected by the gas.(10) AES filing compliance date--The date that the United States Environmental Protection Agency (EPA) announces in the Federal Register, on or after which exporters of hazardous waste and exporters of cathode ray tubes for recycling are required to file EPA information in the Automated Export System or its successor system, under the International Trade Data System platform.(11) Airbag waste--Any hazardous waste airbag modules or hazardous waste airbag inflators.(12) Airbag waste collection facility--Any facility that receives airbag waste from airbag handlers subject to regulation under §335.281 of this title (relating to Airbag Waste) and accumulates the waste for more than ten days.(13) Airbag waste handler--Any person, by site, who generates airbag waste that is subject to regulation under this chapter.(14) Ancillary equipment--Any device that is used to distribute, meter, or control the flow of solid waste or hazardous waste from its point of generation to a storage or processing tank(s), between solid waste or hazardous waste storage and processing tanks to a point of disposal on site, or to a point of shipment for disposal off site. Such devices include, but are not limited to, piping, fittings, flanges, valves, and pumps.(15) Aquifer--A geologic formation, group of formations, or part of a formation capable of yielding a significant amount of groundwater to wells or springs.(16) Area of concern--Any area of a facility under the control or ownership of an owner or operator where a release to the environment of hazardous wastes or hazardous constituents has occurred, is suspected to have occurred, or may occur, regardless of the frequency or duration.(17) Authorized representative--The person responsible for the overall operation of a facility or an operation unit (i.e., part of a facility), e.g., the plant manager, superintendent, or person of equivalent responsibility.(18) Battery--As defined in §335.261 of this title (relating to Universal Waste Rule).(19) Boiler--An enclosed device using controlled flame combustion and having the following characteristics:(A) the unit must have physical provisions for recovering and exporting thermal energy in the form of steam, heated fluids, or heated gases;(B) the unit's combustion chamber and primary energy recovery section(s) must be of integral design. To be of integral design, the combustion chamber and the primary energy recovery section(s) (such as waterwalls and superheaters) must be physically formed into one manufactured or assembled unit. A unit in which the combustion chamber and the primary energy recovery section(s) are joined only by ducts or connections carrying flue gas is not integrally designed; however, secondary energy recovery equipment (such as economizers or air preheaters) need not be physically formed into the same unit as the combustion chamber and the primary energy recovery section. The following units are not precluded from being boilers solely because they are not of integral design:(i) process heaters (units that transfer energy directly to a process stream); and(ii) fluidized bed combustion units;(C) while in operation, the unit must maintain a thermal energy recovery efficiency of at least 60%, calculated in terms of the recovered energy compared with the thermal value of the fuel; and(D) the unit must export and utilize at least 75% of the recovered energy, calculated on an annual basis. In this calculation, no credit shall be given for recovered heat used internally in the same unit. (Examples of internal use are the preheating of fuel or combustion air, and the driving of induced or forced draft fans or feedwater pumps); or(E) the unit is one which the executive director has determined, on a case-by-case basis, to be a boiler, after considering the standards in §335.20 of this title (relating to Variance To Be Classified as a Boiler).(20) Captive facility--A facility that accepts wastes from only related (within the same corporation) off-site generators.(21) Captured facility--A manufacturing or production facility that generates an industrial solid waste or hazardous waste that is routinely stored, processed, or disposed of on a shared basis in an integrated waste management unit owned, operated by, and located within a contiguous manufacturing complex.(22) Captured receiver--A receiver that is located within the property boundaries of the generators from which it receives waste.(23) Carbon dioxide stream--Carbon dioxide that has been captured from an emission source (e.g., power plant), plus incidental associated substances derived from the source materials and the capture process, and any substances added to the stream to enable or improve the injection process.(24) Carbon regeneration unit--Any enclosed thermal treatment device used to regenerate spent activated carbon.(25) Cathode ray tube (CRT)--A vacuum tube, composed primarily of glass, which is the visual or video display component of an electronic device. A used, intact CRT means a CRT whose vacuum has not been released. A used, broken CRT means its glass has been removed from its housing, or casing whose vacuum has been released.(26) Cathode ray tube (CRT) collector--A person who receives used, intact CRTs for recycling, repair, resale, or donation.(27) Cathode ray tube (CRT) exporter--Any person in the United States who initiates a transaction to send used CRTs outside the United States or its territories for recycling or reuse, or any intermediary in the United States arranging for such export.(28) Cathode ray tube (CRT) glass manufacturer--An operation or part of an operation that uses a furnace to manufacture CRT glass.(29) Cathode ray tube (CRT) processing--Conducting all of the following activities:(A) receiving broken or intact CRTs;(B) intentionally breaking intact CRTs or further breaking or separating broken CRTs; and(C) sorting or otherwise managing glass removed from CRT monitors.(30) Central accumulation area--Any on-site hazardous waste accumulation area with hazardous waste accumulating in units subject to either 40 Code of Federal Regulations (CFR) §262.16 or §262.17, as these sections are adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste). In accordance with 40 CFR Part 262, Subpart K, as adopted by reference under §335.59 of this title (relating to Alternative Requirements for Hazardous Waste Determination and Accumulation of Unwanted Material for Laboratories Owned by Eligible Academic Entities), a central accumulation area at an eligible academic entity that chooses to operate under 40 CFR Part 262, Subpart K, is also subject to 40 CFR §262.211 as adopted by reference under §335.59 of this title when accumulating unwanted material and/or hazardous waste.(31) Certification--A statement of professional opinion based upon knowledge and belief.(32) Class 1 wastes--Any industrial solid waste or mixture of industrial solid wastes which because of its concentration, or physical or chemical characteristics, is toxic, corrosive, flammable, a strong sensitizer or irritant, a generator of sudden pressure by decomposition, heat, or other means, or may pose a substantial present or potential danger to human health or the environment when improperly processed, stored, transported, or disposed of or otherwise managed, as further defined in §335.505 of this title (relating to Class 1 Waste Determination).(33) Class 2 wastes--Any individual solid waste or combination of industrial solid waste which cannot be described as hazardous, Class 1, or Class 3 as defined in §335.506 of this title (relating to Class 2 Waste Determination).(34) Class 3 wastes--Inert and essentially insoluble industrial solid waste, usually including, but not limited to, materials such as rock, brick, glass, dirt, and certain plastics and rubber, etc., that are not readily decomposable, as further defined in §335.507 of this title (relating to Class 3 Waste Determination).(35) Closed portion--That portion of a facility which an owner or operator has closed in accordance with the approved facility closure plan and all applicable closure requirements. (See also "Active portion" and "Inactive portion.")(36) Closure--The act of permanently taking a waste management unit or facility out of service.(37) Commercial hazardous waste management facility--Any hazardous waste management facility that accepts hazardous waste or polychlorinated biphenyl compounds for a charge, except a captured facility or a facility that accepts waste only from other facilities owned or effectively controlled by the same person.(38) Component--Either the tank or ancillary equipment of a tank system.(39) Conditionally exempt small quantity generator--A conditionally exempt small quantity generator (CESQG) is a very small quantity generator as defined in this section that meets the independent requirements and the conditions for exemption for a very small quantity generator under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste). A reference to a conditionally exempt small quantity generator, "CESQG", or a person who generates no more than 100 kilograms of hazardous waste in a calendar month is a reference to a very small quantity generator.(40) Confined aquifer--An aquifer bounded above and below by impermeable beds or by beds of distinctly lower permeability than that of the aquifer itself; an aquifer containing confined groundwater. (41) Contained--Hazardous secondary materials held in a unit (including a "Land-based unit" as defined in this section) that meets the following criteria:(A) the unit is in good condition, with no leaks or other continuing or intermittent unpermitted releases of the hazardous secondary materials to the environment, and is designed, as appropriate for the hazardous secondary materials, to prevent releases of hazardous secondary materials to the environment. Unpermitted releases are releases that are not covered by a permit (such as a permit to discharge to water or air) and may include, but are not limited to, releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures;(B) the unit is properly labeled or otherwise has a system (such as a log) to immediately identify the hazardous secondary materials in the unit;(C) the unit holds hazardous secondary materials that are compatible with other hazardous secondary materials placed in the unit and is compatible with the materials used to construct the unit and addresses any potential risks of fires or explosions; and(D) hazardous secondary materials in units that meet the requirements of 40 Code of Federal Regulations Parts 264 and 265 are presumptively contained.(42) Container--Any portable device in which a material is stored, transported, processed, or disposed of, or otherwise handled.(43) Containment building--A hazardous waste management unit that is used to store or treat hazardous waste under the provisions of §335.112(a)(21) or §335.152(a)(19) of this title (relating to Standards).(44) Contaminant--Includes, but is not limited to, "Solid waste," "Hazardous waste," and "Hazardous waste constituent" as defined in this section;" "Pollutant" as defined in Texas Water Code (TWC), §26.001, and Texas Health and Safety Code (THSC),"§361.401; "Hazardous substance" as defined in THSC, §361.003; and other substances that are subject to the Texas Hazardous Substances Spill Prevention and Control Act, TWC, §§26.261 - 26.267.(45) Contaminated medium/media--A portion or portions of the physical environment to include soil, sediment, surface water, groundwater or air, that contain contaminants at levels that pose a substantial present or future threat to human health and the environment. (46) Contingency plan--A document setting out an organized, planned, and coordinated course of action to be followed in case of a fire, explosion, or release of hazardous waste or hazardous waste constituents which could threaten human health or the environment.(47) Control--To apply engineering measures such as capping or reversible treatment methods and/or institutional measures such as deed restrictions to facilities or areas with wastes or contaminated media which result in remedies that are protective of human health and the environment when combined with appropriate maintenance, monitoring, and any necessary further corrective action.(48) Corrosion expert--A person who, by reason of his knowledge of the physical sciences and the principles of engineering and mathematics, acquired by a professional education and related practical experience, is qualified to engage in the practice of corrosion control on buried or submerged metal piping systems and metal tanks. Such a person must be certified as being qualified by the National Association of Corrosion Engineers or be a registered professional engineer who has certification or licensing that includes education and experience in corrosion control on buried or submerged metal piping systems and metal tanks.(49) Decontaminate--To apply a treatment process(es) to wastes or contaminated media whereby the substantial present or future threat to human health and the environment is eliminated.(50) Depolymerization--A manufacturing process through which post-use polymers are broken down into:(A) smaller molecules, including monomers and oligomers; or(B) raw materials, intermediate products, or final products, including plastic feedstocks, chemical feedstocks, basic and unfinished chemicals, waxes, lubricants, or coatings; and(C) does not include crude oil, diesel, gasoline, diesel blend stock, gasoline blend stock, home heating oil, ethanol, or another fuel.(51) Designated facility--A hazardous waste treatment, storage, or disposal facility which: has received a permit (or interim status) in accordance with the requirements of 40 Code of Federal Regulations (CFR) Parts 124 and 270; has received a permit (or interim status) from a state authorized in accordance with 40 CFR Part 271; or is regulated under 40 CFR §261.6(c)(2) or 40 CFR Part 266, Subpart F and has been designated on the manifest by the generator pursuant to 40 CFR §262.20. For hazardous wastes, if a waste is destined to a facility in an authorized state which has not yet obtained authorization to regulate that particular waste as hazardous, then the designated facility must be a facility allowed by the receiving state to accept such waste. For Class 1 wastes, a designated facility is any treatment, storage, or disposal facility authorized to receive the Class 1 waste that has been designated on the manifest by the generator. Designated facility also means a generator site designated on the manifest to receive its waste as a return shipment from a facility that has rejected the waste in accordance with 40 CFR §264.72(f) as adopted under §335.152 of this title (relating to Standards) or 40 CFR §265.72(f) as adopted under §335.112 of this title (relating to Standards).(52) Destination facility--Has the definition adopted under §335.261 of this title (relating to Universal Waste Rule).(53) Dike--An embankment or ridge of either natural or man-made materials used to prevent the movement of liquids, sludges, solids, or other materials.(54) Dioxins and furans (D/F)--Tetra, penta, hexa, hepta, and octa-chlorinated dibenzo dioxins and furans.(55) Discharge or hazardous waste discharge--The accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, or dumping of waste into or on any land or water.(56) Disposal--The discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste (whether containerized or uncontainerized) into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwaters.(57) Disposal facility--A facility or part of a facility at which solid waste is intentionally placed into or on any land or water, and at which waste will remain after closure. The term "Disposal facility" does not include a corrective action management unit into which remediation wastes are placed.(58) Drip pad--An engineered structure consisting of a curbed, free-draining base, constructed of non-earthen materials and designed to convey preservative kick-back or drippage from treated wood, precipitation, and surface water run-on to an associated collection system at wood preserving plants.(59) Electronic import-export reporting compliance date--The date that the United States Environmental Protection Agency (EPA) announces in the Federal Register, on or after which exporters, importers, and receiving facilities are required to submit certain export and import related documents to EPA using EPA's waste Import Export Tracking System, or its successor system.(60) Electronic manifest or e-Manifest--The electronic format of the hazardous waste manifest that is obtained from the United States Environmental Protection Agency's (EPA's) national e-Manifest system and transmitted electronically to the system, and that is the legal equivalent of EPA Forms 8700-22 (Manifest) and 8700-22A (Continuation Sheet).(61) Electronic manifest system or e-Manifest system--The United States Environmental Protection Agency's national information technology system through which the electronic manifest may be obtained, completed, transmitted, and distributed to users of the electronic manifest and to regulatory agencies.(62) Elementary neutralization unit--A device which:(A) is used for neutralizing wastes which are hazardous only because they exhibit the corrosivity characteristic defined in 40 Code of Federal Regulations (CFR) §261.22, or are listed in 40 CFR Part 261, Subpart D, only for this reason; or is used for neutralizing the pH of nonhazardous industrial solid waste; and(B) meets the definition of "Tank," "Tank system," "Container," or "Transport vehicle," as defined in this section; or "Vessel" as defined in 40 CFR §260.10.(63) Essentially insoluble--Any material, which if representatively sampled and placed in static or dynamic contact with deionized water at ambient temperature for seven days, will not leach any quantity of any constituent of the material into the water in excess of current United States Public Health Service or United States Environmental Protection Agency limits for drinking water as published in the Federal Register. (64) Equivalent method--Any testing or analytical method approved by the administrator under 40 Code of Federal Regulations §260.20 and §260.21.(65) Existing portion--That land surface area of an existing waste management unit, included in the original Part A permit application, on which wastes have been placed prior to the issuance of a permit.(66) Existing tank system or existing component--A tank system or component that is used for the storage or processing of hazardous waste and that is in operation, or for which installation has commenced on or prior to July 14, 1986. Installation will be considered to have commenced if the owner or operator has obtained all federal, state, and local approvals or permits necessary to begin physical construction of the site or installation of the tank system and if either:(A) a continuous on-site physical construction or installation program has begun; or(B) the owner or operator has entered into contractual obligations--which cannot be canceled or modified without substantial loss--for physical construction of the site or installation of the tank system to be completed within a reasonable time.(67) Explosives or munitions emergency--A situation involving the suspected or detected presence of unexploded ordnance, damaged or deteriorated explosives or munitions, an improvised explosive device, other potentially explosive material or device, or other potentially harmful military chemical munitions or device, that creates an actual or potential imminent threat to human health, including safety, or the environment, including property, as determined by an explosives or munitions emergency response specialist. These situations may require immediate and expeditious action by an explosives or munitions emergency response specialist to control, mitigate, or eliminate the threat.(68) Explosives or munitions emergency response--All immediate response activities by an explosives and munitions emergency response specialist to control, mitigate, or eliminate the actual or potential threat encountered during an explosives or munitions emergency, subject to the following:(A) an explosives or munitions emergency response includes in-place render-safe procedures, treatment or destruction of the explosives or munitions and/or transporting those items to another location to be rendered safe, treated, or destroyed;(B) any reasonable delay in the completion of an explosives or munitions emergency response caused by a necessary, unforeseen, or uncontrollable circumstance will not terminate the explosives or munitions emergency; and(C) explosives and munitions emergency responses can occur on either public or private lands and are not limited to responses at hazardous waste facilities.(69) Explosives or munitions emergency response specialist--An individual trained in chemical or conventional munitions or explosives handling, transportation, render-safe procedures, or destruction techniques, including United States Department of Defense (DOD) emergency explosive ordnance disposal, technical escort unit, and DOD-certified civilian or contractor personnel; and, other federal, state, or local government, or civilian personnel similarly trained in explosives or munitions emergency responses.(70) Extrusion--A process using pressure to force ground poultry carcasses through a decreasing-diameter barrel or nozzle, causing the generation of heat sufficient to kill pathogens, and resulting in an extruded product acceptable as a feed ingredient.(71) Facility--Includes:(A) all contiguous land, and structures, other appurtenances, and improvements on the land, used for storing, processing, or disposing of municipal hazardous waste or industrial solid waste, or for the management of hazardous secondary materials prior to reclamation. A facility may consist of several treatment, storage, or disposal operational units (e.g., one or more landfills, surface impoundments, or combinations of them);(B) for the purpose of implementing corrective action under §335.167 of this title (relating to Corrective Action for Solid Waste Management Units) or §335.602(a)(5) of this title (relating to Standards), all contiguous property under the control of the owner or operator seeking a permit for the treatment, storage, and/or disposal of hazardous waste. This definition also applies to facilities implementing corrective action under Texas Water Code, §7.031 (Corrective Action Relating to Hazardous Waste);(C) regardless of subparagraph (B) of this paragraph, a "Remediation" waste management site," as defined in 40 Code of Federal Regulations §260.10, is not a facility that is subject to §335.167 of this title, but is subject to corrective action requirements if the site is located within such a facility.(72) Final closure--The closure of all hazardous waste management units at the facility in accordance with all applicable closure requirements so that hazardous waste management activities under Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities) and Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities) are no longer conducted at the facility unless subject to the provisions in Subchapter C of this chapter (relating to Standards Applicable to Generators of Hazardous Waste).(73) Food-chain crops--Tobacco, crops grown for human consumption, and crops grown for feed for animals whose products are consumed by humans.(74) Freeboard--The vertical distance between the top of a tank or surface impoundment dike, and the surface of the waste contained therein.(75) Free liquids--Liquids which readily separate from the solid portion of a waste under ambient temperature and pressure.(76) Gasification--A process through which recoverable feedstocks are heated and converted into a fuel-gas mixture in an oxygen-deficient atmosphere and the mixture is converted into valuable raw materials, valuable intermediate products, or valuable final products, which include plastic monomers, chemicals, waxes, lubricants, or chemical feedstocks; and do not include crude oil, diesel, gasoline, diesel blend stock, gasoline blend stock, home heating oil, ethanol, or another fuel. (77) Generator--Any person, by site, who produces municipal hazardous waste or industrial solid waste; any person who possesses municipal hazardous waste or industrial solid waste to be shipped to any other person; or any person whose act first causes the solid waste to become subject to regulation under this chapter. For the purposes of this regulation, a person who generates or possesses Class 3 wastes only shall not be considered a generator.(78) Groundwater--Water below the land surface in a zone of saturation.(79) Hazardous industrial waste--Any industrial solid waste or combination of industrial solid wastes identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency in accordance with the Resource Conservation and Recovery Act of 1976, §3001 (42 United States Code, §6921). The administrator has identified the characteristics of hazardous wastes and listed certain wastes as hazardous in 40 Code of Federal Regulations Part 261. The executive director will maintain in the offices of the commission a current list of hazardous wastes, a current set of characteristics of hazardous waste, and applicable appendices, as promulgated by the administrator.(80) Hazardous secondary material--A secondary material (e.g., spent material, by-product, or sludge) that, when discarded, would be identified as "Hazardous waste" as defined in this section.(81) Hazardous secondary material generator--Any person whose act or process produces hazardous secondary materials at the generating facility. For purposes of this paragraph, "generating facility" means all contiguous property owned, leased, or otherwise controlled by the hazardous secondary material generator. For the purposes of 40 Code of Federal Regulations §261.4(a)(23), a facility that collects hazardous secondary materials from other persons is not the hazardous secondary material generator.(82) Hazardous substance--Any substance designated as a hazardous substance under 40 Code of Federal Regulations Part 302.(83) Hazardous waste--Any solid waste identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency in accordance with the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 United States Code, §§6901 et seq. (84) Hazardous waste constituent--A constituent that caused the administrator to list the hazardous waste in 40 Code of Federal Regulations (CFR) Part 261, Subpart D or a constituent listed in Table 1 of 40 CFR §261.24.(85) Hazardous waste management facility--All contiguous land, including structures, appurtenances, and other improvements on the land, used for processing, storing, or disposing of hazardous waste. The term includes a publicly- or privately-owned hazardous waste management facility consisting of processing, storage, or disposal operational hazardous waste management units such as one or more landfills, surface impoundments, waste piles, incinerators, boilers, and industrial furnaces, including cement kilns, injection wells, salt dome waste containment caverns, land treatment facilities, or a combination of units.(86) Hazardous waste management unit--A landfill, surface impoundment, waste pile, industrial furnace, incinerator, cement kiln, injection well, container, drum, salt dome waste containment cavern, or land treatment unit, or any other structure, vessel, appurtenance, or other improvement on land used to manage hazardous waste.(87) In operation--Refers to a facility which is processing, storing, or disposing of solid waste or hazardous waste.(88) Inactive portion--That portion of a facility which is not operated after November 19, 1980. (See also "Active portion" and "Closed portion.")(89) Incinerator--(A) Any enclosed device that:(i) uses controlled flame combustion and neither meets the criteria for classification as a boiler, sludge dryer, or carbon regeneration unit, nor is listed as an industrial furnace; or(ii) meets the definition of "Infrared incinerator" or "Plasma arc incinerator."(B) Does not include an "Advanced recycling facility" managing "Recoverable feedstock" as defined in this section.(90) Incompatible waste--A hazardous waste which is unsuitable for:(A) placement in a particular device or facility because it may cause corrosion or decay of containment materials (e.g., container inner liners or tank walls); or(B) commingling with another waste or material under uncontrolled conditions because the commingling might produce heat or pressure, fire or explosion, violent reaction, toxic dusts, mists, fumes, or gases, or flammable fumes or gases.(91) Individual generation site--The contiguous site at or on which one or more solid waste or hazardous wastes are generated. An individual generation site, such as a large manufacturing plant, may have one or more sources of solid waste or hazardous waste, but is considered a single or individual generation site if the site or property is contiguous.(92) Industrial furnace--Includes any of the following enclosed devices that use thermal treatment to accomplish recovery of materials or energy:(A) cement kilns;(B) lime kilns;(C) aggregate kilns;(D) phosphate kilns;(E) coke ovens;(F) blast furnaces;(G) smelting, melting, and refining furnaces (including pyrometallurgical devices such as cupolas, reverberator furnaces, sintering machines, roasters, and foundry furnaces);(H) titanium dioxide chloride process oxidation reactors;(I) methane reforming furnaces;(J) pulping liquor recovery furnaces;(K) combustion devices used in the recovery of sulfur values from spent sulfuric acid;(L) halogen acid furnaces for the production of acid from halogenated hazardous waste generated by chemical production facilities where the furnace is located on the site of a chemical production facility, the acid product has a halogen acid content of at least 3.0%, the acid product is used in a manufacturing process, and, except for "Hazardous waste" burned as fuel, hazardous waste fed to the furnace has a minimum halogen content of 20% as generated; and(M) other devices the commission may list, after the opportunity for notice and comment is afforded to the public.(93) Industrial solid waste--Solid waste resulting from or incidental to any process of industry or manufacturing, or mining or agricultural operation, which may include "Hazardous waste" as defined in this section.(94) Infrared incinerator--Any enclosed device that uses electric powered resistance heaters as a source of radiant heat followed by an afterburner using controlled flame combustion and which is not listed as an industrial furnace.(95) Inground tank--A device meeting the definition of "Tank" in this section whereby a portion of the tank wall is situated to any degree within the ground, thereby preventing visual inspection of that external surface area of the tank that is in the ground.(96) Injection well--A well into which fluids are injected. (See also "Underground injection.")(97) Inner liner--A continuous layer of material placed inside a tank or container which protects the construction materials of the tank or container from the contained waste or reagents used to treat the waste.(98) Installation inspector--A person who, by reason of his knowledge of the physical sciences and the principles of engineering, acquired by a professional education and related practical experience, is qualified to supervise the installation of tank systems.(99) Intermediate facility--Any facility that stores hazardous secondary materials for more than ten days, other than a hazardous secondary material generator or reclaimer of such material.(100) International shipment--The transportation of hazardous waste into or out of the jurisdiction of the United States.(101) Lamp--Has the definition adopted under §335.261 of this title (relating to Universal Waste Rule).(102) Land-based unit--When used to describe recycling of hazardous secondary materials, an area where hazardous secondary materials are placed in or on the land before recycling. This definition does not include land-based production units.(103) Land treatment facility--A facility or part of a facility at which solid waste or hazardous waste is applied onto or incorporated into the soil surface and that is not a corrective action management unit; such facilities are disposal facilities if the waste will remain after closure.(104) Landfill--A disposal facility or part of a facility where solid waste or hazardous waste is placed in or on land and which is not a pile, a land treatment facility, a surface impoundment, an injection well, a salt dome formation, a salt bed formation, an underground mine, a cave, or a corrective action management unit.(105) Landfill cell--A discrete volume of a solid waste or hazardous waste landfill which uses a liner to provide isolation of wastes from adjacent cells or wastes. Examples of landfill cells are trenches and pits.(106) Large quantity generator--A generator who generates any of the following amounts in a calendar month:(A) greater than or equal to 1,000 kilograms (2,200 pounds) of non-acute hazardous waste; or(B) greater than 1 kilogram (2.2 pounds) of acute hazardous waste listed in 40 Code of Federal Regulations (CFR) §261.31 or §261.33(e); or(C) greater than 100 kilograms (220 pounds) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in 40 CFR §261.31 or §261.33(e).(107) Leachate--Any liquid, including any suspended components in the liquid, that has percolated through or drained from solid waste or hazardous waste.(108) Leak-detection system--A system capable of detecting the failure of either the primary or secondary containment structure or the presence of a release of solid waste or hazardous waste or accumulated liquid in the secondary containment structure. Such a system must employ operational controls (e.g., daily visual inspections for releases into the secondary containment system of aboveground tanks) or consist of an interstitial monitoring device designed to detect continuously and automatically the failure of the primary or secondary containment structure or the presence of a release of solid waste or hazardous waste into the secondary containment structure.(109) Licensed professional geoscientist--A geoscientist who maintains a current license through the Texas Board of Professional Geoscientists in accordance with its requirements for professional practice.(110) Liner--A continuous layer of natural or man-made materials, beneath or on the sides of a surface impoundment, landfill, or landfill cell, which restricts the downward or lateral escape of solid waste or hazardous waste, hazardous waste constituents, or leachate. (111) Management or hazardous waste management--The systematic control of the collection, source separation, storage, transportation, processing, treatment, recovery, and disposal of solid waste or hazardous waste.(112) Manifest--The waste shipping document, United States Environmental Protection Agency (EPA) Form 8700-22 (including, if necessary, EPA Form 8700-22A), or the electronic manifest, originated and signed by the generator or offeror in accordance with the applicable requirements of this chapter and 40 Code of Federal Regulations Parts 262 - 265.(113) Manifest tracking number--The alphanumeric identification number (i.e., a unique three-letter suffix preceded by nine numerical digits), which is pre-printed in Item 4 of the manifest by a registered source.(114) Military munitions--All ammunition products and components produced or used by or for the Department of Defense (DOD) or the United States Armed Services for national defense and security, including military munitions under the control of the DOD, the United States Coast Guard, the United States Department of Energy (DOE), and National Guard personnel. The term "military munitions":(A) includes confined gaseous, liquid, and solid propellants, explosives, pyrotechnics, chemical and riot control agents, smokes, and incendiaries used by DOD components, including bulk explosives and chemical warfare agents, chemical munitions, rockets, guided and ballistic missiles, bombs, warheads, mortar rounds, artillery ammunition, small arms ammunition, grenades, mines, torpedoes, depth charges, cluster munitions and dispensers, demolition charges, and devices and components thereof; and(B) includes non-nuclear components of nuclear devices, managed under DOE's nuclear weapons program after all required sanitization operations under the Atomic Energy Act of 1954, as amended, have been completed; but(C) does not include wholly inert items, improvised explosive devices, and nuclear weapons, nuclear devices, and nuclear components thereof.(115) Miscellaneous unit--A hazardous waste management unit where hazardous waste is stored, processed, or disposed of and that is not a container, tank, surface impoundment, pile, land treatment unit, landfill, incinerator, boiler, industrial furnace, underground injection well with appropriate technical standards under Chapter 331 of this title (relating to Underground Injection Control), corrective action management unit, containment building, staging pile, or unit eligible for a research, development, and demonstration permit or under Chapter 305, Subchapter K of this title (relating to Research, Development, and Demonstration Permits).(116) Movement--That solid waste or hazardous waste transported to a facility in an individual vehicle.(117) Municipal hazardous waste--A municipal solid waste or mixture of municipal solid wastes which has been identified or listed as a hazardous waste by the administrator of the United States Environmental Protection Agency.(118) Municipal solid waste--Solid waste resulting from or incidental to municipal, community, commercial, institutional, and recreational activities; including garbage, rubbish, ashes, street cleanings, dead animals, abandoned automobiles, and all other solid waste other than industrial waste.(119) New tank system or new tank component--A tank system or component that will be used for the storage or processing of hazardous waste and for which installation has commenced after July 14, 1986; except, however, for purposes of 40 Code of Federal Regulations (CFR) §264.193(g)(2) (incorporated by reference at §335.152(a)(8) of this title (relating to Standards)) and 40 CFR §265.193(g)(2) (incorporated by reference at §335.112(a)(9) of this title (relating to Standards)), a new tank system is one for which construction commences after July 14, 1986. (See also "Existing tank system.")(120) No free liquids--As used in 40 Code of Federal Regulations §261.4(a)(26) and (b)(18), means that solvent-contaminated wipes may not contain free liquids as determined by Method 9095B (Paint Filter Liquids Test), included in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods" (EPA Publication SW-846), which is incorporated by reference at §335.31 of this title (relating to Incorporation of References), and that there is no free liquid in the container holding the wipes.(121) Non-acute hazardous waste--All hazardous wastes that are not acute hazardous waste, as defined in this section.(122) Off-site--Property which cannot be characterized as on-site.(123) Onground tank--A device meeting the definition of "Tank" in this section and that is situated in such a way that the bottom of the tank is on the same level as the adjacent surrounding surface so that the external tank bottom cannot be visually inspected.(124) On-Site--The same or geographically contiguous property which may be divided by public or private rights-of-way, provided the entrance and exit between the properties is at a cross-roads intersection, and access is by crossing, as opposed to going along, the right-of-way. Noncontiguous properties owned by the same person but connected by a right-of-way which he controls and to which the public does not have access, is also considered on-site property.(125) Open burning--The combustion of any material without the following characteristics:(A) control of combustion air to maintain adequate temperature for efficient combustion;(B) containment of the combustion-reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and(C) control of emission of the gaseous combustion products. (See also "Incinerator" and "Thermal processing.") (126) Operator--The person responsible for the overall operation of a facility.(127) Owner--The person who owns a facility or part of a facility.(128) Partial closure--The closure of a hazardous waste management unit in accordance with the applicable closure requirements of Subchapters E and F of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities; and Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities) at a facility that contains other active hazardous waste management units. For example, partial closure may include the closure of a tank (including its associated piping and underlying containment systems), landfill cell, surface impoundment, waste pile, or other hazardous waste management unit, while other units of the same facility continue to operate.(129) PCBs or polychlorinated biphenyl compounds--Compounds subject to 40 Code of Federal Regulations Part 761.(130) Permit--A written permit issued by the commission which, by its conditions, may authorize the permittee to construct, install, modify, or operate a specified municipal hazardous waste or industrial solid waste treatment, storage, or disposal facility in accordance with specified limitations.(131) Personnel or facility personnel--All persons who work at, or oversee the operations of, a solid waste or hazardous waste facility, and whose actions or failure to act may result in noncompliance with the requirements of this chapter.(132) Pesticide--Has the definition adopted under §335.261 of this title (relating to Universal Waste Rule).(133) Petroleum substance--A crude oil or any refined or unrefined fraction or derivative of crude oil which is a liquid at standard conditions of temperature and pressure.(A) Except as provided in subparagraph (C) of this paragraph for the purposes of this chapter, a "Petroleum substance" shall be limited to a substance in or a combination or mixture of substances within the following list (except for any listed substance regulated as a hazardous waste under the federal Solid Waste Disposal Act, Subtitle C (42 United States Code (USC), §§6921, et seq. )) and which is liquid at standard conditions of temperature (20 degrees Centigrade) and pressure (1 atmosphere):(i) basic petroleum substances--i.e., crude oils, crude oil fractions, petroleum feedstocks, and petroleum fractions;(ii) motor fuels--a petroleum substance which is typically used for the operation of internal combustion engines and/or motors (which includes, but is not limited to, stationary engines and engines used in transportation vehicles and marine vessels);(iii) aviation gasolines--i.e., Grade 80, Grade 100, and Grade 100-LL;(iv) aviation jet fuels--i.e., Jet A, Jet A-1, Jet B, JP-4, JP-5, and JP-8;(v) distillate fuel oils--i.e., Number 1-D, Number 1, Number 2-D, and Number 2;(vi) residual fuel oils--i.e., Number 4-D, Number 4-light, Number 4, Number 5-light, Number 5-heavy, and Number 6;(vii) gas-turbine fuel oils--i.e., Grade O-GT, Grade 1-GT, Grade 2-GT, Grade 3-GT, and Grade 4-GT;(viii) illuminating oils--i.e., kerosene, mineral seal oil, long-time burning oils, 300 oil, and mineral colza oil;(ix) lubricants--i.e., automotive and industrial lubricants; (x) building materials--i.e., liquid asphalt and dust-laying oils;(xi) insulating and waterproofing materials--i.e., transformer oils and cable oils; and(xii) used oils--See definition for "Used oil" in this section.(B) For the purposes of this chapter, a "Petroleum substance" shall include solvents or a combination or mixture of solvents (except for any listed substance regulated as a hazardous waste under the federal Solid Waste Disposal Act, Subtitle C (42 USC, §§6921, et seq. )) and which is liquid at standard conditions of temperature (20 degrees Centigrade) and pressure (1 atmosphere) i.e., Stoddard solvent, petroleum spirits, mineral spirits, petroleum ether, varnish makers' and painters' naphthas, petroleum extender oils, and commercial hexane.(C) The following materials are not considered petroleum substances:(i) polymerized materials, i.e., plastics, synthetic rubber, polystyrene, high and low density polyethylene;(ii) animal, microbial, and vegetable fats;(iii) food grade oils;(iv) hardened asphalt and solid asphaltic materials--i.e., roofing shingles, roofing felt, hot mix (and cold mix); and(v) cosmetics.(134) Pile--Any noncontainerized accumulation of solid, nonflowing solid waste or hazardous waste that is used for processing or storage, and that is not a corrective action management unit or a containment building.(135) Plasma arc incinerator--Any enclosed device using a high intensity electrical discharge or arc as a source of heat followed by an afterburner using controlled flame combustion and which is not listed as an industrial furnace.(136) Post-closure order--An order issued by the commission for post-closure care of interim status units, a corrective action management unit unless authorized by permit, or alternative corrective action requirements for contamination commingled from Resource Conservation and Recovery Act and solid waste management units.(137) Post-use polymers--Plastics:(A) derived from any industrial, commercial, agricultural, or domestic activity, including preconsumer recovered materials and postconsumer materials;(B) that would be classified as nonhazardous solid waste if discarded;(C) that have been sorted from solid waste and other regulated waste and may contain residual amounts of organic material and incidental contaminants or impurities such as paper labels or metal rings;(D) not mixed with solid waste or hazardous waste on-site or while being processed at an advanced recycling facility;(E) used or intended for use as a feedstock or for the production of feedstocks, raw materials, intermediate products, or final products using advanced recycling; and(F) processed or held prior to being processed at an advanced recycling facility. (138) Poultry--Chickens or ducks being raised or kept on any premises in the state for profit.(139) Poultry carcass--The carcass, or part of a carcass, of poultry that died as a result of a cause other than intentional slaughter for use for human consumption.(140) Poultry facility--A facility that:(A) is used to raise, grow, feed, or otherwise produce poultry for commercial purposes; or(B) is a commercial poultry hatchery that is used to produce chicks or ducklings.(141) Processing--The extraction of materials, transfer, volume reduction, conversion to energy, or other separation and preparation of solid waste for reuse or disposal, including the treatment or neutralization of solid waste or hazardous waste, designed to change the physical, chemical, or biological character or composition of any solid waste or hazardous waste so as to neutralize such waste, or so as to recover energy or material from the waste or so as to render such waste nonhazardous, or less hazardous; safer to transport, store or dispose of; or amenable for recovery, amenable for storage, or reduced in volume. The transfer of solid waste for reuse or disposal as used in this definition does not include the actions of a transporter in conveying or transporting solid waste by truck, ship, pipeline, or other means. Unless the executive director determines that regulation of such activity is necessary to protect human health or the environment, the definition of "Processing" does not include activities relating to those materials exempted by the administrator of the United States Environmental Protection Agency in accordance with the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 United States Code, §§6901 et seq., as amended.(142) Publicly-owned treatment works (POTW)--Any device or system used in the treatment (including recycling and reclamation) of municipal sewage or industrial wastes of a liquid nature which is owned by a state or municipality (as defined by the federal Clean Water Act, §502(4)). The definition includes sewers, pipes, or other conveyances only if they convey wastewater to a POTW providing treatment.(143) Pyrolysis--A manufacturing process through which post-use polymers are heated in an oxygen-deficient atmosphere and the pyrolysis product is converted into valuable raw materials, valuable intermediate products, or valuable final products, which include plastic monomers, chemicals, naphtha, waxes, polymers, plastic feedstocks, or chemical feedstocks; and do not include crude oil, diesel, gasoline, diesel blend stock, gasoline blend stock, home heating oil, ethanol, or another fuel. (144) Qualified groundwater scientist--A scientist or engineer who has received a baccalaureate or post-graduate degree in the natural sciences or engineering, and has sufficient training and experience in groundwater hydrology and related fields as may be demonstrated by state registration, professional certifications, or completion of accredited university courses that enable that individual to make sound professional judgments regarding groundwater monitoring and contaminant fate and transport.(145) Recognized trader--A person domiciled in the United States, by site of business, who acts to arrange and facilitate transboundary movements of wastes destined for recovery or disposal operations, either by purchasing from and subsequently selling to United States and foreign facilities, or by acting under arrangements with a United States waste facility to arrange for the export or import of the wastes.(146) Recoverable feedstock--One or more of the following materials, derived from recoverable nonhazardous waste, other than coal refuse, that has been processed so that it may be used as feedstock in an "Advanced recycling facility" or through "Gasification" as these terms are defined in this section:(A) post-use polymers; (B) material, including municipal solid waste and other post-industrial waste:(i) for which the commission or the United States Environmental Protection Agency has made a non-waste determination under 40 Code of Federal Regulations §241.3(c); or(ii) that the commission or the United States Environmental Protection Agency has otherwise determined are feedstocks and not solid waste; and(C) excluding fuels. (147) Regional administrator--The regional administrator for the United States Environmental Protection Agency region in which the facility is located, or his designee.(148) Remanufacturing--Processing a higher-value hazardous secondary material in order to manufacture a product that serves a similar functional purpose as the original commercial-grade material. For the purpose of this definition, a hazardous secondary material is considered higher-value if it was generated from the use of a commercial-grade material in a manufacturing process and can be remanufactured into a similar commercial-grade material.(149) Remediation--The act of eliminating or reducing the concentration of contaminants in contaminated media.(150) Remediation waste--All solid and hazardous wastes, and all media (including groundwater, surface water, soils, and sediments) and debris, which contain listed hazardous wastes or which themselves exhibit a hazardous waste characteristic, that are managed for the purpose of implementing corrective action requirements under §335.167 of this title (relating to Corrective Action for Solid Waste Management Units) and Texas Water Code, §7.031 (Corrective Action Relating to Hazardous Waste). For a given facility, remediation wastes may originate only from within the facility boundary, but may include waste managed in implementing corrective action for releases beyond the facility boundary under §335.166(5) of this title (relating to Corrective Action Program) or §335.167(c) of this title.(151) Remove--To take waste, contaminated design or operating system components, or contaminated media away from a waste management unit, facility, or area to another location for treatment, storage, or disposal.(152) Replacement unit--A landfill, surface impoundment, or waste pile unit:(A) from which all or substantially all the waste is removed; and(B) that is subsequently reused to treat, store, or dispose of hazardous waste. "Replacement unit" does not apply to a unit from which waste is removed during closure, if the subsequent reuse solely involves the disposal of waste from that unit and other closing units or corrective action areas at the facility, in accordance with an approved closure plan or United States Environmental Protection Agency or state approved corrective action.(153) Representative sample--A sample of a universe or whole (e.g., waste pile, lagoon, groundwater) which can be expected to exhibit the average properties of the universe or whole.(154) Run-off--Any rainwater, leachate, or other liquid that drains over land from any part of a facility.(155) Run-on--Any rainwater, leachate, or other liquid that drains over land onto any part of a facility.(156) Saturated zone or zone of saturation--That part of the earth's crust in which all voids are filled with water.(157) Shipment--Any action involving the conveyance of municipal hazardous waste or industrial solid waste by any means off-site.(158) Sludge dryer--Any enclosed thermal treatment device that is used to dehydrate sludge and that has a maximum total thermal input, excluding the heating valve of the sludge itself, of 2,500 British thermal units per pound of sludge treated on a wet-weight basis.(159) Small quantity generator--A generator who generates the following amounts in a calendar month:(A) greater than 100 kilograms (220 pounds) but less than 1,000 kilograms (2,200 pounds) of non-acute hazardous waste;(B) less than or equal to 1 kilogram (2.2 pounds) of acute hazardous waste listed in 40 Code of Federal Regulations (CFR) §261.31 or §261.33(e); and(C) less than or equal to 100 kilograms (220 pounds) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in 40 CFR §261.31 or §261.33(e).(160) Solid waste--(A) Any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility, and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, municipal, commercial, mining, and agricultural operations, and from community and institutional activities, but does not include:(i) solid or dissolved material in domestic sewage, or solid or dissolved material in irrigation return flows, or industrial discharges subject to regulation by permit issued in accordance with Texas Water Code, Chapter 26 (an exclusion applicable only to the actual point source discharge that does not exclude industrial wastewaters while they are being collected, stored, or processed before discharge, nor does it exclude sludges that are generated by industrial wastewater treatment);(ii) uncontaminated soil, dirt, rock, sand, and other natural or man-made inert solid materials used to fill land if the object of the fill is to make the land suitable for the construction of surface improvements. The material serving as fill may also serve as a surface improvement such as a structure foundation, a road, soil erosion control, and flood protection. Man-made materials exempted under this provision shall only be deposited at sites where the construction is in progress or imminent such that rights to the land are secured and engineering, architectural, or other necessary planning have been initiated. Waste disposal shall be considered to have occurred on any land which has been filled with man-made inert materials under this provision if the land is sold, leased, or otherwise conveyed prior to the completion of construction of the surface improvement. Under such conditions, deed recordation shall be required. The deed recordation shall include the information required under §335.5(a) of this title (relating to Deed Recordation of Waste Disposal), prior to sale or other conveyance of the property;(iii) waste materials which result from "Activities associated with the exploration, development, or production of oil or gas or geothermal resources," as those activities are defined in this section, and any other substance or material regulated by the Railroad Commission of Texas in accordance with the Texas Natural Resources Code, §91.101, unless such waste, substance, or material results from activities associated with gasoline plants, natural gas, or natural gas liquids processing plants, pressure maintenance plants, or repressurizing plants and is a hazardous waste as defined by the administrator of the United States Environmental Protection Agency (EPA) in accordance with the federal Solid Waste Disposal Act, 42 United States Code, §§6901 et seq., as amended;(iv) a material excluded by 40 Code of Federal Regulations (CFR) §§261.4(a), 261.39, or 261.40, as adopted under §335.504 of this title (relating to Hazardous Waste Determination), subject to the changes in this clause, by variance, or by non-waste determination granted under §335.18 of this title (relating to Non-Waste Determinations and Variances from Classification as a Solid Waste), §335.19 of this title (relating to Standards and Criteria for Variances from Classification as a Solid Waste), §335.21 of this title (relating to Procedures for Variances from Classification as a Solid Waste or To Be Classified as a Boiler or for Non-Waste Determinations), and §335.32 of this title (relating to Standards and Criteria for Non-Waste Determinations). For the purposes of the exclusions under 40 CFR §261.39 and §261.40, 40 CFR §261.41 is adopted by reference under §335.504 of this title; or(v) recoverable feedstocks including post-use polymers that are processed through pyrolysis, gasification, solvolysis, or depolymerization at an advanced recycling facility where the owner or operator keeps records on-site in accordance with subparagraph (I) of this paragraph demonstrating: that the primary function of the facility is to convert recoverable feedstocks into valuable raw materials, valuable intermediate products, or valuable final products for subsequent beneficial use; and that solid waste generated from converting materials has been disposed of at an authorized solid waste management facility. (B) A discarded material is any material which is:(i) abandoned, as explained in subparagraph (C) of this paragraph;(ii) recycled, as explained in subparagraph (D) of this paragraph;(iii) considered inherently waste-like, as explained in subparagraph (E) of this paragraph; or(iv) a military munition identified as a solid waste in 40 CFR §266.202.(C) Materials are solid wastes if they are abandoned by being:(i) disposed of;(ii) burned or incinerated;(iii) accumulated, stored, or processed (but not recycled) before or in lieu of being abandoned by being disposed of, burned, or incinerated; or(iv) sham recycling as explained in subparagraph (J) of this paragraph.(D) Except for materials described in subparagraph (H) of this paragraph, materials are solid wastes if they are "recycled" or accumulated, stored, or processed before recycling as specified in this subparagraph. The chart referred to as Table 1 in Figure: 30 TAC §335.1(160)(D)(iv) indicates only which materials are considered to be solid wastes when they are recycled and is not intended to supersede the definition of "Solid waste" provided in subparagraph (A) of this paragraph.(i) Used in a manner constituting disposal. Materials noted with an asterisk in Column 1 of Table 1 in Figure: 30 TAC §335.1(160)(D)(iv) are solid wastes when they are:(I) applied to or placed on the land in a manner that constitutes disposal; or(II) used to produce products that are applied to or placed on the land or are otherwise contained in products that are applied to or placed on the land (in which cases the product itself remains a solid waste). However, commercial chemical products listed in 40 CFR §261.33 are not solid wastes if they are applied to the land and that is their ordinary manner of use.(ii) Burning for energy recovery. Materials noted with an asterisk in Column 2 of Table 1 in Figure: 30 TAC §335.1(160)(D)(iv) are solid wastes when they are:(I) burned to recover energy; or(II) used to produce a fuel or are otherwise contained in fuels (in which cases the fuel itself remains a solid waste). However, commercial chemical products, which are listed in 40 CFR §261.33, not listed in §261.33, but that exhibit one or more of the hazardous waste characteristics, or will be considered nonhazardous waste if disposed, are not solid wastes if they are fuels themselves and burned for energy recovery.(iii) Reclaimed. Materials noted with an asterisk in Column 3 of Table 1 are solid wastes when reclaimed (unless they meet the requirements of 40 CFR §261.4(a)(17), (23), (24), or (27)). Materials without an asterisk in Column 3 of Table 1 in Figure: 30 TAC §335.1(160)(D)(iv) are not solid wastes when reclaimed.(iv) Accumulated speculatively. Materials noted with an asterisk in Column 4 of Table 1 in Figure: 30 TAC §335.1(160)(D)(iv) are solid wastes when accumulated speculatively.Attached Graphic(E) Materials that are identified by the administrator of the EPA as inherently waste-like materials under 40 CFR §261.2(d) are solid wastes when they are recycled in any manner.(F) Materials are not solid wastes when they can be shown to be recycled by being:(i) used or reused as ingredients in an industrial process to make a product, provided the materials are not being reclaimed; (ii) used or reused as effective substitutes for commercial products;(iii) returned to the original process from which they were generated, without first being reclaimed or land disposed. The material must be returned as a substitute for feedstock materials. In cases where the original process to which the material is returned is a secondary process, the materials must be managed such that there is no placement on the land. In cases where the materials are generated and reclaimed within the primary mineral processing industry, the conditions of the exclusion found at 40 CFR §261.4(a)(17) apply rather than this provision; or(iv) secondary materials that are reclaimed and returned to the original process or processes in which they were generated where they are reused in the production process provided:(I) only tank storage is involved, and the entire process through completion of reclamation is closed by being entirely connected with pipes or other comparable enclosed means of conveyance;(II) reclamation does not involve controlled flame combustion (such as occurs in boilers, industrial furnaces, or incinerators); (III) the secondary materials are never accumulated in such tanks for over 12 months without being reclaimed; and(IV) the reclaimed material is not used to produce a fuel, or used to produce products that are used in a manner constituting disposal.(G) Except for materials described in subparagraph (H) of this paragraph, the following materials are solid wastes, even if the recycling involves use, reuse, or return to the original process, as described in subparagraph (F) of this paragraph:(i) materials used in a manner constituting disposal, or used to produce products that are applied to the land;(ii) materials burned for energy recovery, used to produce a fuel, or contained in fuels;(iii) materials accumulated speculatively; or(iv) materials deemed to be inherently waste-like by the administrator of the EPA, as described in 40 CFR §261.2(d)(1) and (2).(H) With the exception of contaminated soils which are being relocated for use under §350.36 of this title (relating to Relocation of Soils Containing Chemicals of Concern for Reuse Purposes) and other contaminated media, materials that will otherwise be identified as nonhazardous solid wastes if disposed of are not considered solid wastes when recycled by being applied to the land or used as ingredients in products that are applied to the land, provided these materials can be shown to meet all of the following criteria:(i) a legitimate market exists for the recycling material as well as its products;(ii) the recycling material is managed and protected from loss as will be raw materials or ingredients or products;(iii) the quality of the product is not degraded by substitution of raw material/product with the recycling material;(iv) the use of the recycling material is an ordinary use and it meets or exceeds the specifications of the product it is replacing without treatment or reclamation, or if the recycling material is not replacing a product, the recycling material is a legitimate ingredient in a production process and meets or exceeds raw material specifications without treatment or reclamation;(v) the recycling material is not burned for energy recovery, used to produce a fuel, or contained in a fuel;(vi) the recycling material can be used as a product itself or to produce products as it is generated without treatment or reclamation;(vii) the recycling material must not present an increased risk to human health, the environment, or waters in the state when applied to the land or used in products which are applied to the land and the material, as generated:(I) is a Class 3 waste under Subchapter R of this chapter (relating to Waste Classification), except for arsenic, cadmium, chromium, lead, mercury, nickel, selenium, and total dissolved solids; and(II) for the metals listed in subclause (I) of this clause:(-a-) is a Class 2 or Class 3 waste under Subchapter R of this chapter; and(-b-) does not exceed a concentration limit under §312.43(b)(3), Table 3 of this title (relating to Metal Limits); and(viii) with the exception of the requirements under §335.17(a)(8) of this title (relating to Special Definitions for Recyclable Materials and Nonhazardous Recyclable Materials):(I) at least 75% (by weight or volume) of the annual production of the recycling material must be recycled or transferred to a different site and recycled on an annual basis; and(II) if the recycling material is placed in protective storage, such as a silo or other protective enclosure, at least 75% (by weight or volume) of the annual production of the recycling material must be recycled or transferred to a different site and recycled on a biennial basis.(I) Respondents in actions to enforce the industrial solid waste regulations and facility operators who raise a claim that a certain material is not a solid waste, or is conditionally exempt from regulation, must demonstrate that there is a known market or disposition for the material, and that they meet the terms of the exclusion or exemption. In doing so, they must provide appropriate documentation (such as contracts showing that a second person uses the material as an ingredient in a production process) to demonstrate that the material is not a waste, or is exempt from regulation. In addition, owners or operators of facilities claiming that they actually are recycling materials must show that they have the necessary equipment to do so and that the recycling activity is legitimate and beneficial.(J) A hazardous secondary material found to be sham recycled is considered discarded and a solid waste. Sham recycling is recycling that is not legitimate recycling as defined in §335.27 of this title (relating to Legitimate Recycling of Hazardous Secondary Materials).(K) Materials that are reclaimed from solid wastes and that are used beneficially are not solid wastes and hence are not hazardous wastes under 40 CFR §261.3(c) unless the reclaimed material is burned for energy recovery or used in a manner constituting disposal.(L) Other portions of this chapter that relate to solid wastes that are recycled include §335.6 of this title (relating to Notification Requirements), §§335.17 - 335.19 of this title, §335.24 of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials), and Subchapter H of this chapter (relating to Standards for the Management of Specific Wastes and Specific Types of Facilities).(M) Steel slag may not be considered as solid waste if the steel slag is an intended output or result of the use of an electric arc furnace to make steel, introduced into the stream of commerce, and managed as an item of commercial value, including through a controlled use in a manner constituting disposal, and not as discarded material.(N) Foundry sand from the iron and steel casting industry may not be considered as solid waste if the sand is an intended output or result of the use of an iron or steel casting process to make cast iron and steel products, introduced into the stream of commerce, and managed as an item of commercial value, including through a controlled use in a manner constituting disposal, and not as discarded material.(161) Solvent-contaminated wipe--A wipe that, after use or after cleaning up a spill, either:(A) contains one or more of the F001 through F005 solvents listed in 40 Code of Federal Regulations (CFR) §261.31 or the corresponding P- or U-listed solvents found in 40 CFR §261.33;(B) exhibits a hazardous characteristic found in 40 CFR Part 261, Subpart C, when that characteristic results from a solvent listed in 40 CFR Part 261; and/or(C) exhibits only the hazardous waste characteristic of ignitability found in 40 CFR §261.21 due to the presence of one or more solvents that are not listed in 40 CFR Part 261. Solvent-contaminated wipes that contain listed hazardous waste other than solvents, or exhibit the characteristic of toxicity, corrosivity, or reactivity due to contaminants other than solvents, are not eligible for the exclusions at 40 CFR §261.4(a)(26) and (b)(18).(162) Solvolysis--A manufacturing process that includes hydrolysis, aminolysis, ammonolysis, methanolysis, and/or glycolysis through which post-use polymers are purified with the aid of solvents while heated at low temperatures, pressurized, or both heated at low temperatures and pressurized, to remove additives and contaminants and make useful products, which include monomers, intermediates, valuable chemicals, plastic feedstocks, chemical feedstocks, and raw materials; and do not include crude oil, diesel, gasoline, diesel blend stock, gasoline blend stock, home heating oil, ethanol, or another fuel.(163) Sorbent--A material that is used to soak up free liquids by either adsorption or absorption, or both. Sorb means to either adsorb or absorb, or both.(164) Spill--The accidental spilling, leaking, pumping, emitting, emptying, or dumping of solid waste or hazardous wastes or materials which, when spilled, become solid waste or hazardous wastes into or on any land or water.(165) Staging pile--An accumulation of solid, non-flowing "Remediation waste," as defined in this section, that is not a containment building and that is used only during remedial operations for temporary storage at a facility. Staging piles must be designated by the executive director according to the requirements of 40 Code of Federal Regulations §264.554, as adopted by reference under §335.152(a) of this title (relating to Standards).(166) Standard permit--A Resource Conservation and Recovery Act permit authorizing management of hazardous waste issued under Chapter 305, Subchapter R of this title (relating to Resource Conservation and Recovery Act Standard Permits for Storage and Treatment Units) and Subchapter U of this chapter (relating to Standards for Owners and Operators of Hazardous Waste Facilities Operating Under a Standard Permit). The standard permit may have two parts, a uniform portion issued in all cases and a supplemental portion issued at the executive director's discretion.(167) Storage--The holding of solid waste for a temporary period, at the end of which the waste is processed, disposed of, recycled, or stored elsewhere.(168) Sump--Any pit or reservoir that meets the definition of "Tank" in this section and those troughs/trenches connected to it that serve to collect solid waste or hazardous waste for transport to solid waste or hazardous waste treatment, storage, or disposal facilities; except that as used in the landfill, surface impoundment, and waste pile rules, "sump" means any lined pit or reservoir that serves to collect liquids drained from a leachate collection and removal system or leak detection system for subsequent removal from the system.(169) Surface impoundment or impoundment--A facility or part of a facility which is a natural topographic depression, man-made excavation, or diked area formed primarily of earthen materials (although it may be lined with man-made materials), which is designed to hold an accumulation of liquid wastes or wastes containing free liquids, and which is not an injection well or a corrective action management unit. Examples of surface impoundments are holding, storage, settling, and aeration pits, ponds, and lagoons.(170) Tank--A stationary device, designed to contain an accumulation of solid waste which is constructed primarily of non-earthen materials (e.g., wood, concrete, steel, plastic) which provide structural support.(171) Tank system--A solid waste or hazardous waste storage or processing tank and its associated ancillary equipment and containment system.(172) TEQ--Toxicity equivalence, the international method of relating the toxicity of various dioxin/furan congeners to the toxicity of 2,3,7,8-tetrachlorodibenzo-p-dioxin.(173) Thermal processing--The processing of solid waste or hazardous waste in a device which uses elevated temperatures as the primary means to change the chemical, physical, or biological character or composition of the solid waste or hazardous waste. Examples of thermal processing are incineration, molten salt, pyrolysis, calcination, wet air oxidation, and microwave discharge. (See also "Incinerator" and "Open burning.")(174) Thermostat--Has the definition adopted under §335.261 of this title (relating to Universal Waste Rule).(175) Totally enclosed treatment facility--A facility for the processing of hazardous waste which is directly connected to an industrial production process and which is constructed and operated in a manner which prevents the release of any hazardous waste or any constituent thereof into the environment during processing. An example is a pipe in which acid waste is neutralized.(176) Transfer facility--Any transportation-related facility including loading docks, parking areas, storage areas, and other similar areas where shipments of hazardous or industrial solid waste or hazardous secondary materials are held during the normal course of transportation.(177) Transport vehicle--A motor vehicle or rail car used for the transportation of cargo by any mode. Each cargo-carrying body (trailer, railroad freight car, etc.) is a separate transport vehicle. Vessel includes every description of watercraft, used or capable of being used as a means of transportation on the water.(178) Transporter--Any person who conveys or transports municipal hazardous waste or industrial solid waste by truck, ship, pipeline, or other means.(179) Treatability study--A study in which a hazardous or industrial solid waste is subjected to a treatment process to determine: (A) whether the waste is amenable to the treatment process;(B) what pretreatment (if any) is required;(C) the optimal process conditions needed to achieve the desired treatment;(D) the efficiency of a treatment process for a specific waste or wastes; or(E) the characteristics and volumes of residuals from a particular treatment process. Also included in this definition for the purpose of the exemptions under 40 Code of Federal Regulations §261.4(e) and (f) and §335.2 of this title (relating to Permit Required) are liner compatibility, corrosion, and other material compatibility studies and toxicological and health effects studies. A treatability study is not a means to commercially treat or dispose of hazardous or industrial solid waste.(180) Treatment--To apply a physical, biological, or chemical process(es) to wastes and contaminated media which significantly reduces the toxicity, volume, or mobility of contaminants and which, depending on the process(es) used, achieves varying degrees of long-term effectiveness.(181) Treatment zone--A soil area of the unsaturated zone of a land treatment unit within which hazardous constituents are degraded, transferred, or immobilized.(182) Underground injection--The subsurface emplacement of fluids through a bored, drilled, or driven well; or through a dug well, where the depth of the dug well is greater than the largest surface dimension. (See also "Injection well.")(183) Underground tank--A device meeting the definition of "Tank" in this section whose entire surface area is totally below the surface of and covered by the ground.(184) Unfit-for-use tank system--A tank system that has been determined through an integrity assessment or other inspection to be no longer capable of storing or processing solid waste or hazardous waste without posing a threat of release of solid waste or hazardous waste to the environment.(185) United States Environmental Protection Agency (EPA) hazardous waste number--The number assigned by the EPA to each hazardous waste listed in 40 Code of Federal Regulations (CFR) Part 261, Subpart D and to each characteristic identified in 40 CFR Part 261, Subpart C.(186) United States Environmental Protection Agency (EPA) identification number--The number assigned by the EPA or the commission to each generator, transporter, and processing, storage, or disposal facility.(187) Universal waste--Any of the hazardous wastes defined as universal waste under §335.261(b)(19)(F) of this title (relating to Universal Waste Rule) that are managed under the universal waste requirements of Subchapter H, Division 5 of this chapter (relating to Universal Waste Rule).(188) Universal waste handler--Has the definition adopted as "Large quantity handler of universal waste" and "Small quantity handler of universal waste" under §335.261 of this title (relating to Universal Waste Rule).(189) Universal waste transporter--Has the definition adopted under 40 Code of Federal Regulations §273.9.(190) Unsaturated zone or zone of aeration--The zone between the land surface and the water table.(191) Uppermost aquifer--The geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected within the facility's property boundary.(192) Used oil--Any oil that has been refined from crude oil, or any synthetic oil, that has been used, and, as a result of such use, is contaminated by physical or chemical impurities. Used oil fuel includes any fuel produced from used oil by processing, blending, or other treatment. Rules applicable to nonhazardous used oil, oil characteristically hazardous from use versus mixing, very small quantity generator hazardous used oil, and household used oil after collection that will be recycled are found in Chapter 324 of this title (relating to Used Oil Standards) and 40 Code of Federal Regulations Part 279 (Standards for Management of Used Oil).(193) User of the electronic manifest system--A hazardous waste generator, a hazardous waste transporter, an owner or operator of a hazardous waste treatment, storage, recycling, or disposal facility, or any other person that:(A) is required to use a manifest to comply with:(i) any federal or state requirement to track the shipment, transportation, and receipt of hazardous waste or other waste material that is shipped from the site of generation to an off-site designated facility for treatment, storage, recycling, or disposal; or(ii) any federal or state requirement to track the shipment, transportation, and receipt of rejected wastes or regulated container residues that are shipped from a designated facility to an alternative facility, or returned to the generator; and(B) elects to use the system to obtain, complete and transmit an electronic manifest format supplied by the United States Environmental Protection Agency electronic manifest system; or(C) elects to use the paper manifest form and submits to the system for data processing purposes a paper copy of the manifest (or data from such a paper copy), in accordance with 40 Code of Federal Regulations (CFR) §264.71(a)(2)(v) as adopted under §335.152 of this title (relating to Standards) or 40 CFR §265.71(a)(2)(v) as adopted under §335.112 of this title (relating to Standards). These paper copies are submitted for data exchange purposes only and are not the official copies of record for legal purposes.(194) Very small quantity generator--A generator who generates less than or equal to the following amounts in a calendar month:(A) 100 kilograms (220 pounds) of non-acute hazardous waste; and(B) 1 kilogram (2.2 pounds) of acute hazardous waste listed in 40 Code of Federal Regulations (CFR) §261.31 or §261.33(e); and(C) 100 kilograms (220 pounds) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in 40 CFR §261.31 or §261.33(e).(195) Wastewater treatment unit--A device which:(A) is part of a wastewater treatment facility subject to regulation under either the Federal Water Pollution Control Act (federal Clean Water Act), 33 United States Code, §§466 et seq., §402 or §307(b), as amended; (B) receives and processes or stores an influent wastewater which is a hazardous or industrial solid waste, or generates and accumulates a wastewater treatment sludge which is a hazardous or industrial solid waste, or processes or stores a wastewater treatment sludge which is a hazardous or industrial solid waste; and(C) meets the definition of "Tank" or "Tank system" as defined in this section.(196) Water (bulk shipment)--The bulk transportation of municipal hazardous waste or Class 1 industrial solid waste which is loaded or carried on board a vessel without containers or labels.(197) Well--Any shaft or pit dug or bored into the earth, generally of a cylindrical form, and often walled with bricks or tubing to prevent the earth from caving in.(198) Wipe--A woven or non-woven shop towel, rag, pad, or swab made of wood pulp, fabric, cotton, polyester blends, or other material.(199) Zone of engineering control--An area under the control of the owner/operator that, upon detection of a solid waste or hazardous waste release, can be readily cleaned up prior to the release of solid waste or hazardous waste or hazardous constituents to groundwater or surface water.</content><note type="source"><p>Source Note: The provisions of this §335.1 adopted to be effective May 28, 1986, 11 TexReg 2335; amended to be effective September 1, 1986, 11 TexReg 3692; amended to be effective January 6, 1987, 11 TexReg 5096; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective July 27, 1988, 13 TexReg 3515; amended to be effective February 1, 1989, 14 TexReg 316; amended to be effective August 4, 1989, 14 TexReg 3532; amended to be effective November 7, 1991, 16 TexReg 6065; amended to be effective July 29, 1992, 17 TexReg 5017; amended to be effective November 27, 1992, 17 TexReg8010; amended to be effective June 28, 1993, 18 TexReg 3814; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective February 22, 1994, 19 TexReg 969; amended to be effective May 30, 1995, 20 TexReg 3722; amended to be effective February 26, 1996, 21 TexReg 1142; amended to be effective March 1, 1996, 21 TexReg 1425; amended to be effective March 6, 1996, 21 TexReg 2400; amended to be effective November 20, 1996, 21 TexReg 10983; amended to be effective July 16, 1997, 22 TexReg 6456; amended to be effective September 23, 1997, 22 TexReg 9252; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective April 4, 1999, 24 TexReg 2352; amended to be effective September 5, 1999, 24 TexReg 6790; amended to be effective December 5, 1999, 24 TexReg 10562; amended to be effective April 30, 2000, 25 TexReg 3547; amended to be effective April12,2001, 26 TexReg 2741; amended to be effective May 30, 2001, 26 TexReg 3807; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective January 30, 2003, 28 TexReg 715; amended to be effective September 1, 2003, 28 TexReg 6915; amended to be effective August 31, 2006, 31 TexReg 6755; amended to be effective August 16, 2007, 32 TexReg 5010; amended to be effective October 29, 2009, 34 TexReg 7321; amended to be effective February 21, 2013, 38 TexReg 978; amended to be effective January 8, 2015, 40 TexReg 77; amended to be effective June 16, 2016, 41 TexReg 4259; amended to be effective June 11, 2020, 45 TexReg 3780; amended to be effective February 3, 2022, 47 TexReg 318; amended to be effective November 17, 2024, 49 TexReg 8940.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.2"><num value="335.2">§335.2</num><heading>Permit Required</heading><content>(a) Except with regard to storage, processing, or disposal to which subsections (c) - (h) of this section apply, and as provided in §335.45(b) of this title (relating to Effect on Existing Facilities), and in accordance with the requirements of §335.24 of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials) and §335.25 of this title (relating to Handling, Storing, Processing, Transporting, and Disposing of Poultry Carcasses), and as provided in §332.4 of this title (relating to General Requirements), no person may cause, suffer, allow, or permit any activity of storage, processing, or disposal of any industrial solid waste or municipal hazardous waste unless such activity is authorized by a permit, amended permit, or other authorization from the Texas Commission on Environmental Quality (commission) or its predecessor agencies, the Texas Department of State Health Services (DSHS), or other valid authorization from a Texas state agency. No person may commence physical construction of a new hazardous waste management facility without first having submitted Part A and Part B of the permit application and received a finally effective permit.(b) In accordance with the requirements of subsection (a) of this section, no generator, transporter, owner or operator of a facility, or any other person may cause, suffer, allow, or permit its wastes to be stored, processed, or disposed of at an unauthorized facility or in violation of a permit. In the event this requirement is violated, the executive director will seek recourse against not only the person who stored, processed, or disposed of the waste, but also against the generator, transporter, owner or operator, or other person who caused, suffered, allowed, or permitted its waste to be stored, processed, or disposed.(c) Any owner or operator of a solid waste management facility that is in existence on the effective date of a statutory or regulatory change that subjects the owner or operator to a requirement to obtain a hazardous waste permit who has filed a hazardous waste permit application with the commission in accordance with the rules and regulations of the commission, may continue the storage, processing, or disposal of hazardous waste until such time as the commission approves or denies the application, or, if the owner or operator becomes subject to a requirement to obtain a hazardous waste permit after November 8, 1984, except as provided by the United States Environmental Protection Agency (EPA) or commission rules relative to termination of interim status. If a solid waste facility which has become a commercial hazardous waste management facility as a result of the federal toxicity characteristic rule effective September 25, 1990, and is required to obtain a hazardous waste permit, such facility that qualifies for interim status is limited to those activities that qualify it for interim status until the facility obtains the hazardous waste permit. Owners or operators of municipal hazardous waste facilities that satisfied this requirement by filing an application on or before November 19, 1980, with the EPA are not required to submit a separate application with the DSHS. Applications filed under this section shall meet the requirements of §335.44 of this title (relating to Application for Existing On-Site Facilities). Owners and operators of solid waste management facilities that are in existence on the effective date of statutory or regulatory amendments under the Texas Solid Waste Disposal Act (Vernon's Supplement 1991), Texas Civil Statutes, Article 4477-7, or the Resource Conservation and Recovery Act (RCRA), 42 United States Code, §§6901 et seq., that render the facilities subject to the requirement to obtain a hazardous waste permit, may continue to operate if Part A of their permit application is submitted no later than six months after the date of publication of regulations by the EPA under RCRA, which first require them to comply with the standards in Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities), or Subchapter H of this chapter (relating to Standards for the Management of Specific Wastes and Specific Types of Facilities); or 30 days after the date they first become subject to the standards in these subchapters, whichever first occur; or for generators who generate greater than 100 kilograms but less than 1,000 kilograms of hazardous waste in a calendar month and who process, store, or dispose of these wastes on-site, a Part A permit application shall be submitted to the EPA by March 24, 1987, as required by 40 Code of Federal Regulations (CFR) §270.10(e)(1)(iii). This subsection shall not apply to a facility if it has been previously denied a hazardous waste permit or if authority to operate the facility has been previously terminated. Applications filed under this section shall meet the requirements of §335.44 of this title. For purposes of this subsection, a solid waste management facility is in existence if the owner or operator has obtained all necessary federal, state, and local preconstruction approvals or permits, as required by applicable federal, state, and local hazardous waste control statutes, regulations, or ordinances; and either:(1) a continuous physical, on-site construction program has begun; or(2) the owner or operator has entered into contractual obligations, which cannot be cancelled or modified without substantial loss, for construction of the facility to be completed within a reasonable time.(d) No permit shall be required for:(1) the processing or disposal of nonhazardous industrial solid waste, if the waste is processed or disposed on property owned or otherwise effectively controlled by the owner or operator of the industrial plant, manufacturing plant, mining operation, or agricultural operation from which the waste results or is produced; the property is within 50 miles of the plant or operation; and the waste is not commingled with waste from any other source or sources (An industrial plant, manufacturing plant, mining operation, or agricultural operation owned by one person shall not be considered an "other source" with respect to other plants and operations owned by the same person.);(2) the storage of nonhazardous industrial solid waste, if the waste is stored on property owned or otherwise effectively controlled by the owner or operator of the industrial plant, manufacturing plant, mining operation, or agricultural operation from which the waste results or is produced, and the waste is not commingled with waste from any other source or sources (An industrial plant, manufacturing plant, mining operation, or agricultural operation owned by one person shall not be considered an "other source" with respect to other plants and operations owned by the same person.);(3) the storage or processing of nonhazardous industrial solid waste, if the waste is processed in an elementary neutralization unit;(4) the collection, storage, or processing of nonhazardous industrial solid waste, if the waste is collected, stored, or processed as part of a treatability study;(5) the storage of nonhazardous industrial solid waste, if the waste is stored in a transfer facility in containers for a period of ten days or less, unless the executive director determines that a permit should be required in order to protect human health and the environment;(6) the storage or processing of nonhazardous industrial solid waste, if the waste is processed in a publicly owned treatment works with discharges subject to regulation under the federal Clean Waste Act, §402, as amended through October 4, 1996, if the owner or operator has a National Pollutant Discharge Elimination System permit and complies with the conditions of the permit;(7) the storage or processing of nonhazardous industrial solid waste, if the waste is stored or processed in a wastewater unit and is discharged in accordance with a Texas Pollutant Discharge Elimination System authorization issued under Texas Water Code, Chapter 26;(8) the storage or processing of nonhazardous industrial solid waste, if the waste is stored or processed in a wastewater treatment unit that discharges to a publicly owned treatment works and the units are located at a noncommercial solid waste management facility; (9) the storage or processing of nonhazardous industrial solid waste, if the waste is processed in a wastewater treatment unit that discharges to a publicly owned treatment works liquid wastes that are incidental to the handling, processing, storage, or disposal of solid wastes at municipal solid waste facilities or commercial industrial solid waste landfill facilities; or (10) the land application, as defined in §321.405 of this title (relating to Definitions), or the disposal of dairy waste, as defined in §321.48 of this title (relating to Land Application of Dairy Waste), under emergency conditions, as defined in §321.48 of this title, in compliance with Chapter 321 of this title (relating to Control of Certain Activities by Rule).(e) No permit shall be required for the on-site storage of hazardous waste by a person who meets the conditions for exemption for a very small quantity generator in 40 CFR §262.14 as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste).(f) No permit under this chapter shall be required for the storage, processing, or disposal of hazardous waste by a person described in §335.41(b) - (d) of this title (relating to Purpose, Scope, and Applicability) or for the storage of hazardous waste under the provisions of 40 CFR §261.4(c) and (d) as adopted under §335.504 of this title (relating to Hazardous Waste Determination).(g) No permit under this chapter shall be required for the storage, processing, or disposal of hazardous industrial waste or municipal hazardous waste that is generated or collected for the purpose of conducting treatability studies. Such samples are subject to the requirements in 40 CFR §261.4(e) and (f) as adopted under §335.504 of this title.(h) A person may obtain authorization from the executive director for the storage, processing, or disposal of nonhazardous industrial solid waste in an interim status landfill that has qualified for interim status in accordance with 40 CFR Part 270, Subpart G, and that has complied with the standards in Subchapter E of this chapter, by complying with the notification and information requirements in §335.6 of this title (relating to Notification Requirements). The executive director may approve or deny the request for authorization or grant the request for authorization subject to conditions, which may include, without limitation, public notice and technical requirements. A request for authorization for the disposal of nonhazardous industrial solid waste under this subsection shall not be approved unless the executive director determines that the subject facility is suitable for disposal of such waste at the facility as requested. At a minimum, a determination of suitability by the executive director must include approval by the executive director of construction of a hazardous waste landfill meeting the design requirements of 40 CFR §265.301(a). In accordance with §335.6 of this title, such person shall not engage in the requested activities if denied by the executive director or unless 90 days' notice has been provided and the executive director approves the request except where express executive director approval has been obtained prior to the expiration of the 90 days. Authorization may not be obtained under this subsection for:(1) nonhazardous industrial solid waste, the storage, processing, or disposal of which is expressly prohibited under an existing permit or site development plan applicable to the facility or a portion of the facility;(2) polychlorinated biphenyl compounds wastes subject to regulation by 40 CFR Part 761;(3) explosives and shock-sensitive materials;(4) pyrophorics;(5) infectious materials;(6) liquid organic peroxides;(7) radioactive or nuclear waste materials, receipt of which will require a license from the DSHS or the commission or any other successor agency; and(8) friable asbestos waste unless authorization is obtained in compliance with the procedures established under §330.171(c)(3)(B) - (E) of this title (relating to Disposal of Special Wastes). Authorizations obtained under this subsection shall be effective during the pendency of the interim status and shall cease upon the termination of interim status, final administrative disposition of the subject permit application, failure of the facility to operate the facility in compliance with the standards set forth in Subchapter E of this chapter, or as otherwise provided by law.(i) Owners or operators of hazardous waste management units must have permits during the active life (including the closure period) of the unit. Owners or operators of surface impoundments, landfills, land treatment units, and waste pile units that received wastes after July 26, 1982, or that certified closure (according to 40 CFR §265.115) after January 26, 1983, must have post-closure permits, unless they demonstrate closure by removal or decontamination as provided under 40 CFR §270.1(c)(5) and (6), or obtain an order in lieu of a post-closure permit, as provided in subsection (m) of this section. If a post-closure permit is required, the permit must address applicable provisions of 40 CFR Part 264, and Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities) provisions concerning groundwater monitoring, unsaturated zone monitoring, corrective action, and post-closure care requirements. The denial of a permit for the active life of a hazardous waste management facility or unit does not affect the requirement to obtain a post-closure permit under this section.(j) Upon receipt of the federal Hazardous and Solid Waste Act (HSWA) authorization for the commission's Hazardous Waste Program, the commission shall be authorized to enforce the provisions that the EPA imposed in hazardous waste permits that were issued before the HSWA authorization was granted.(k) Any person who intends to conduct an activity under subsection (d) of this section shall comply with the notification requirements of §335.6 of this title.(l) No permit shall be required for the management of universal wastes by universal waste handlers or universal waste transporters, in accordance with the definitions and requirements of Subchapter H, Division 5 of this chapter (relating to Universal Waste Rule). (m) At the discretion of the commission, an owner or operator may obtain a post-closure order in lieu of a post-closure permit for interim status units, a corrective action management unit unless authorized by a permit, or alternative corrective action requirements for contamination commingled from RCRA and solid waste management units. The post-closure order must address the facility-wide corrective action requirements of §335.167 of this title (relating to Corrective Action for Solid Waste Management Units) and groundwater monitoring requirements of §335.156 of this title (relating to Applicability of Groundwater Monitoring and Response).(n) Except as provided in subsection (d)(9) of this section, owners or operators of commercial industrial solid waste facilities that receive industrial solid waste for discharge to a publicly owned treatment works are required to obtain a permit under this subchapter. By June 1, 2006, owners or operators of existing commercial industrial solid waste facilities that receive industrial solid waste for discharge to a publicly owned treatment works must have a permit issued under this subchapter or obtain a general permit issued under Chapter 205 of this title (relating to General Permits for Waste Discharges) to continue operating. A general permit issued under Chapter 205 of this title will authorize operations until a final decision is made on the application for an individual permit or 15 months, whichever is earlier. The general permit shall authorize operations for a maximum period of 15 months except that authorization may be extended on an individual basis in one-year increments at the discretion of the executive director. Should an application for a general permit issued under Chapter 205 of this title be submitted, the applicant shall also submit to the commission, by June 1, 2006, the appropriate information to demonstrate compliance with financial assurance requirements for closure of industrial solid waste facilities in accordance with Chapter 37, Subchapter P of this title (relating to Financial Assurance for Hazardous and Nonhazardous Industrial Solid Waste Facilities). Owners or operators of commercial industrial solid waste facilities that receive industrial solid waste for discharge to a publicly owned treatment works operating under a general permit issued under Chapter 205 of this title shall submit an application for a permit issued under this subchapter prior to September 1, 2006.(o) Treatment, storage, and disposal facilities that are otherwise subject to permitting under RCRA and that meet the criteria in paragraphs (1) or paragraph (2) of this subsection, may be eligible for a standard permit under Subchapter U of this chapter (relating to Standards for Owners and Operators of Hazardous Waste Facilities Operating Under a Standard Permit) if they satisfy one of the two following criteria:(1) facility generates hazardous waste and then non-thermally treats and/or stores hazardous waste on-site; or(2) facility receives hazardous waste generated off-site by a generator under the same ownership as the receiving facility.(p) No permit under this chapter shall be required for a reverse distributor accumulating potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals, as defined in §335.751 of this title (relating to Definitions) in compliance with Subchapter W of this chapter (relating to Management Standards for Hazardous Waste Pharmaceuticals). Reverse distributors accumulating potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals in compliance with Subchapter W of this chapter shall notify the executive director in accordance with §335.6 of this title.</content><note type="source"><p>Source Note: The provisions of this §335.2 adopted to be effective May 29, 1986, 11 TexReg 2335; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective January 5, 1988, 12 TexReg 4846; amended to be effective February 1, 1989, 14 TexReg 316; amended to be effective August 14, 1990, 15 TexReg 4397; amended to be effective November 7, 1991, 16 TexReg 6065; amended to be effective May 12, 1993, 18 TexReg 2799; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective November 29, 1995, 20 TexReg 9748; amended to be effective November 20, 1996,21 TexReg 10983; amended to be effective September 23, 1997, 22 TexReg 9252; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective September 5, 1999, 24 TexReg 6790; amended to be effective April 30, 2000, 25 TexReg 3547; amended to be effective January 30, 2003, 28 TexReg 715; amended to be effective February 22, 2006, 31 TexReg 1040; amended to be effective October 29, 2009, 34 TexReg 7321; amended to be effective February 21, 2013, 38 TexReg 978; amended to be effective June 11, 2020, 45 TexReg 3780; amended to be effective February 3, 2022, 47 TexReg 318; amended to be effective July 31, 2025, 50 TexReg 4944.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.3"><num value="335.3">§335.3</num><heading>Technical Guidelines</heading><content>In order to promote the proper collection, handling, storage, processing, and disposal of industrial solid waste or municipal hazardous waste in a manner consistent with the purposes of Texas Health and Safety Code, Chapter 361, the executive director will make available on request, copies of technical guidelines outlining methods designed to aid in the prevention of the conditions prohibited in this chapter. Guidelines should be considered as suggestions only.</content><note type="source"><p>Source Note: The provisions of this §335.3 adopted to be effective May 29, 1986, 11 TexReg 2335; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.4"><num value="335.4">§335.4</num><heading>General Prohibitions</heading><content>In addition to the requirements of §335.2 of this title (relating to Permit Required), no person may cause, suffer, allow, or permit the collection, handling, storage, processing, or disposal of industrial solid waste or municipal hazardous waste in such a manner so as to cause:(1) the discharge or imminent threat of discharge of industrial solid waste or municipal hazardous waste into or adjacent to the waters in the state without obtaining specific authorization for such a discharge from the Texas Commission on Environmental Quality;(2) the creation and maintenance of a nuisance; or(3) the endangerment of the public health and welfare.</content><note type="source"><p>Source Note: The provisions of this §335.4 adopted to be effective May 29, 1986, 11 TexReg 2335; amended to be effective September 1, 1986, 11 TexReg 3692; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective June 16, 2016, 41 TexReg 4259.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.5"><num value="335.5">§335.5</num><heading>Deed Recordation of Waste Disposal</heading><content>(a) Deed recordation of disposal of industrial solid waste or municipal hazardous waste. No person may cause, suffer, allow, or permit the disposal of industrial solid waste or municipal hazardous waste in a landfill prior to recording in the county deed records of the county or counties in which the disposal takes place the following information:(1) a metes and bounds description of the portion or portions of the tract of land on which disposal of industrial solid waste or municipal hazardous waste will take place;(2) the class or classes of industrial solid wastes or municipal hazardous wastes to be disposed of and waste description; and(3) the name or permanent address of the person or persons operating the facility where more specific information on the disposal activity can be obtained.(b) Proof of recordation. Proof of recordation shall be provided to the executive director in writing prior to instituting disposal operations.(c) Additional requirements. Owners of property on which facilities for disposal of hazardous waste are located are subject to further requirements adopted by reference in §335.112(a)(6) of this title (relating to Standards).(d) Exemption. A landowner who, at the time of disposal of animal carcasses on-site, complies with a certified water quality management plan developed for that site under Texas Agriculture Code, §201.026(f) (relating to Nonpoint Source Pollution) is exempt from the deed recordation requirements of this section.</content><note type="source"><p>Source Note: The provisions of this §335.5 adopted to be effective May 29, 1986, 11 TexReg 2335; amended to be effective June 28, 1993, 18 TexReg 3814; amended to be effective May 2, 2002, 27 TexReg 3564.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.6"><num value="335.6">§335.6</num><heading>Notification Requirements</heading><content>(a) Notification of industrial solid waste and municipal hazardous waste activities not authorized by a permit. Any person who intends to store, process, recycle, or dispose of industrial solid waste without a permit, as authorized by §335.2(d), (f), or (h) of this title (relating to Permit Required) or §335.24 of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials), shall notify the executive director using a method approved by the executive director, that storage, processing, recycling, or disposal activities are planned.(1) A person required to notify of activities under this subsection shall notify at least 90 days before conducting an activity under this subsection.(2) A person required to notify under this section shall submit additional information, upon request, to the executive director to demonstrate that storage, processing, recycling, or disposal is compliant with the terms of this chapter, including but not limited to information listed under subsection (b)(3) of this section. (b) Duty to notify of changed and new information. Any person who stores, processes, or disposes of municipal hazardous waste or industrial solid waste shall promptly notify the executive director using a method approved by the executive director of: (1) any new information concerning storage, processing, and disposal described in paragraph (3) of this subsection; and(2) any changes to information previously submitted or reported under subsection (a) of this section:(A) authorized in any permit issued by the commission; or(B) submitted or reported to the commission in any application filed with the commission. (3) Information concerning storage, processing, and disposal required to be submitted under this subsection includes and is not limited to:(A) waste composition;(B) waste management methods;(C) facility engineering plans and specifications; and (D) the geology where the facility is located.(4) A person who notifies the executive director under this section shall immediately document and notify the executive director within 90 days of changes in information previously provided and additional information that was not provided.(c) Generator registration. (1) Any person, by site, that generates in any calendar month more than 100 kilograms of non-acute hazardous waste, more than 1 kilogram of acute hazardous waste, or more than 100 kilograms of industrial Class 1 waste shall register in a method approved by the executive director. (2) Large quantity generators must meet the requirements of this subsection using the electronic interface provided by the executive director unless:(A) the executive director has granted a written request to use paper forms or an alternative notification method; or (B) the software does not have features capable of meeting the requirements. (3) Notifications submitted pursuant to this section shall be in addition to information provided in any permit applications required by §335.2 of this title, or any reports required by §335.9 of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators), §335.10 of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste), and §335.13 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste). (4) If waste is recycled on-site or managed pursuant to §335.2(d)(1) - (4) or (6) - (9) of this title, the generator must also comply with the notification requirements specified in subsection (h) of this section. (5) The information submitted pursuant to the notification requirements of this subchapter and to the additional requirements of §335.503 of this title (relating to Waste Classification and Waste Coding Required) shall include, but is not limited to:(A) a description of the waste including: (i) a description of the process generating the waste; and(ii) the composition of the waste;(B) a hazardous waste determination in accordance with §335.504 of this title (relating to Hazardous Waste Determination), which includes the appropriate United States Environmental Protection Agency (EPA) hazardous waste number(s) described in 40 Code of Federal Regulations (CFR) Part 261; (C) the disposition of each solid waste generated, if subject to the notification requirement of this subsection, including: (i) whether the waste is managed on-site and/or off-site;(ii) a description of the type and use of each on-site waste management facility unit;(iii) a listing of the wastes managed in each unit; and (iv) whether each unit is permitted, or qualifies for an exemption, under §335.2 of this title.(d) Transporter registration. Any person who transports hazardous waste or industrial Class 1 waste shall notify the executive director of such activity by registering using a method approved by the executive director. A person, by site, that generates in any calendar month less than 100 kilograms of non-acute hazardous waste, less than 1 kilogram of acute hazardous waste, and less than 100 kilograms of industrial Class 1 waste and only transports their own waste is not required to comply with this subsection. (e) Transfer facility registration. A person that intends to operate a transfer facility in accordance with §335.94 of this title (relating to Transfer Facility Requirements) shall notify the executive director of such activity by registering using a method approved by the executive director.(f) Waste analysis. Any person who ships, stores, processes, or disposes of industrial solid waste or hazardous waste shall provide the chemical analysis of the solid waste performed in accordance with Subchapter R of this chapter (relating to Waste Classification) to the executive director upon written request. (g) Notification prior to facility expansion. Any person who stores, processes, or disposes of industrial solid waste or municipal hazardous waste shall notify the executive director in writing of any activity or facility expansion not authorized by permit, at least 90 days prior to conducting such activity. Such person shall submit to the executive director upon request such information as may reasonably be required to enable the executive director to determine whether such activity is compliant with this chapter.(h) Notification of recycling activities. Any person who intends to ship off-site or transfer to another person for recycling, or who conducts or intends to conduct the recycling of, industrial solid waste, municipal hazardous waste, recyclable materials, or nonhazardous recyclable materials as defined in §335.24 of this title or Subchapter H of this chapter (relating to Standards for the Management of Specific Wastes and Specific Types of Facilities) and who is required to notify under §335.24 of this title or Subchapter H of this chapter shall notify the executive director using a method approved by the executive director.(1) A person that is required to notify under this subsection shall include, at a minimum, the following information:(A) the type(s), classification(s), Texas waste code(s) and EPA hazardous waste number(s) described in 40 CFR Part 261, if any, of each industrial solid waste and municipal hazardous waste intended to be recycled;(B) the method of storage prior to recycling; and(C) the nature of the recycling activity.(2) A person required to notify the executive director of the intent to recycle under this subsection may begin recycling activities 90 days after submitting notification of intent to recycle under this subsection if the executive director has not requested additional information in response to the notification or upon receipt of an acknowledgment from the executive director.(i) Notification of operating under the small quantity burner exemption. The owner or operator of a facility qualifying for the small quantity burner exemption under 40 CFR §266.108 must provide a one-time signed, written notification to the EPA and to the executive director indicating the following:(1) the combustion unit is operating as a small quantity burner of hazardous waste; (2) the owner and operator are in compliance with the requirements of 40 CFR §266.108, §335.221(a)(19) of this title (relating to Applicability and Standards) and this subsection; and(3) the maximum quantity of hazardous waste that the facility may burn as provided by 40 CFR §266.108(a)(1).(j) Notification of used oil activities. Notification and regulation requirements on nonhazardous used oil, oil made characteristically hazardous by use (instead of mixing), used oil generated by a very small quantity generator, and household used oil after collection that will be recycled shall notify in accordance with Chapter 324 of this title (relating to Used Oil).(k) Notification exemption for the disposal of animal carcasses. A landowner who disposes of domestic or exotic animal carcasses and who complies with a certified water quality management plan developed for their site under Texas Agriculture Code, §201.026(f) as added by Acts 2001, 77th Legislature, Chapter 1189, §1 (relating to Nonpoint Source Pollution) is exempt from the notification requirements of subsections (a) and (b) of this section.(l) Healthcare facilities notification. A person required to notify the executive director under §335.755 of this title (relating to Standards for Healthcare Facilities Managing Non-Creditable Hazardous Waste Pharmaceuticals) shall notify using a method approved by the executive director. (m) Reverse distributor registration. A person required to notify the executive director under §335.771 of this title (relating to Standards for the Management of Potentially Creditable Hazardous Waste Pharmaceuticals and Evaluated Hazardous Waste Pharmaceuticals by Reverse Distributors) shall register using a method approved by the executive director. (n) Notification exemption for land application or disposal of dairy waste under emergency conditions. A person land applying, as the term land application is defined in §321.405 of this title (relating to Definitions), or disposing of dairy waste, as defined in §321.48 of this title (relating to Land Application of Dairy Waste), under emergency conditions, as defined in §321.48 of this title, in compliance with Chapter 321, of this title (relating to Control of Certain Activities by Rule) is exempt from the notification requirements of this section.</content><note type="source"><p>Source Note: The provisions of this §335.6 adopted to be effective February 3, 2022, 47 TexReg 318; amended to be effective July 31, 2025, 50 TexReg 4944.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.7"><num value="335.7">§335.7</num><heading>Financial Assurance Required</heading><content>Authority to store, process, or dispose of industrial solid waste or municipal hazardous waste in accordance with a permit or post-closure order issued by the commission is contingent upon the execution and maintenance of financial assurance for the amount(s) specified in its permit in accordance with Chapter 37, Subchapter P of this title (relating to Financial Assurance for Hazardous and Nonhazardous Industrial Solid Waste Facilities), which provides for the closing of the solid waste storage, processing, or disposal facility in accordance with the permit or post-closure order issued for the facility and all other rules of the commission. The commission may require the execution and maintenance of financial assurance in accordance with Chapter 37, Subchapter P of this title for the closing of any solid waste facility exempt from the requirement of a permit under this chapter, but subject to the requirement of a permit or post-closure order under Texas Water Code, Chapter 26. Persons storing, processing, or disposing of hazardous waste are subject to further requirements concerning financial assurance and closure and post-closure contained in Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities). If the executive director determines that there is a significant risk to human health and the environment from sudden or nonsudden accidental occurrences resulting from the operations of a solid waste storage, processing, or disposal facility, the owner or operator may be required to provide coverage for sudden and/or nonsudden accidental occurrences in accordance with Chapter 37, Subchapter P of this title.</content><note type="source"><p>Source Note: The provisions of this §335.7 adopted to be effective May 29, 1986, 11 TexReg 2335; amended to be effective January 5, 1988, 12 TexReg 2335; amended to be effective March 21, 2000, 25 TexReg 2394; amended to be effective January 30, 2003, 28 TexReg 715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.8"><num value="335.8">§335.8</num><heading>Closure and Remediation</heading><content>(a) Applicability. The regulations of this section, in addition to other applicable rules, permits, or orders, establish the obligation for persons to perform closures or remediations for facilities or areas containing industrial solid waste or municipal hazardous waste. The person can fulfill this obligation by meeting the risk reduction standards of this section or the remedy standards of Chapter 350 of this title (relating to Texas Risk Reduction Program), depending on the time of initial notification to the executive director of intent to conduct closure or remediation. The regulations of this section will remain in effect for persons who notify the executive director before May 1, 2000, of a closure or remediation in accordance with this section, unless the person elects to comply fully with Chapter 350 of this title prior to that date. Persons who notify of a closure or remediation in response to this section have up to five years from May 1, 2000, within which to submit for executive director review and approval according to this section a final report which demonstrates attainment of risk reduction standards 1 or 2. Persons will automatically qualify for this grandfathering provision if they have received a letter from the agency acknowledging receipt of the initial notification, or submit other forms of documentation by May 1, 2001, that proper and timely notification had been made. The person who has submitted a final remedial investigation report that fully complies with §335.553(b)(1) of this title (relating to Risk Reduction Standard Number 3), prior to May 1, 2001, may elect to either continue under these rules or to proceed under Chapter 350 of this title. Any person who qualifies for this grandfathering provision and elects to continue using the provisions of this section may not use any of the provisions of Chapter 350 of this title. If the executive director denies approval of the final remedial investigation report under this section for reasons of technical inadequacy, the executive director may require the person to comply with the requirements of Chapter 350 of this title. For closures and remediations initially reported to the executive director on or after May 1, 2000, the person shall use the procedures of Chapter 350 of this title. The regulations in this section supplement but do not replace any requirements for closure or remediation specified in the regulations for the programs subject to these rules and shall continue to apply as specified in paragraphs (1) - (4) of this subsection to persons who qualify for this grandfathering provision.(1) Any person who stores, processes, or disposes of industrial solid waste or municipal hazardous waste at a facility permitted under §335.2(a) of this title (relating to Permit Required), shall, unless specifically modified by other order of the commission, close the facility in accordance with the closing provisions of the permit.(2) Any person who stores, processes, or disposes of hazardous waste is also subject to the applicable provisions relating to closure and post-closure in Subchapters E and F of this chapter (relating to Interim Standards for Hazardous Waste Storage, Processing, or Disposal Facilities; and Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities, respectively).(3) Persons who have received approval of closure or remediation plans by the executive director and have either completed or not completed the action prior to June 28, 1993, may either maintain or complete the action, as applicable, according to the approved plan and are not subject to the requirements of this section unless a substantial change in circumstances develops at the facility or area which results in an unacceptable threat to human health or the environment as described in §350.35 of this title (relating to Substantial Change in Circumstances). Plans or reports submitted but not approved prior to June 28, 1993, will be reviewed according to the regulations in effect at the time of document submittal. If the executive director denies approval of the plan or report under those regulations for reasons of technical inadequacy, the person must then comply with the requirements of Chapter 350 of this title upon receipt of written notice from the executive director that the plan or report is not approved. Closure plans approved as part of an industrial solid or municipal hazardous waste permit which was issued prior to June 28, 1993, but not implemented at the time of permit renewal are subject to review for compliance with Chapter 350 of this title as part of the permit renewal process. Persons may resubmit such plans or reports that they have revised voluntarily to conform with the requirements of Chapter 350 of this title, unless such resubmittal would result in noncompliance with a previously approved or imposed schedule of compliance.(4) The requirements of this section do not apply to substances discharged or spilled from storage tanks regulated by Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks).(b) Closure and Remediation Obligations. Persons identified in subsection (a) of this section have the obligation to conduct the activities described in paragraphs (1) - (4) of this subsection when performing a closure or remediation. Upon receipt of approval by the executive director of reports demonstrating compliance with all applicable requirements, the person has completed these obligations unless a substantial change in circumstances results in an unacceptable risk to human health or the environment as described in paragraph (5) of this subsection.(1) Notify the executive director in writing of any closure or remediation activities as is further specified in subsection (c) of this section.(2) Perform closure or remediation activities at the facility or area of unauthorized discharge which meet one or more of the risk reduction standards specified in subparagraphs (A) - (C) of this paragraph. Unless the requirement to close a waste management facility component is specified by other rule, permit, or order, the person will determine the time for initiation of closure. The timely remediation of unauthorized discharges resulting from continuing operation of a waste management facility component does not compel the closure of the component unless closure is a necessary part of the remedy to achieve protection of human health and the environment.(A) Risk Reduction Standard Number 1. Closure/remediation to background--to remove and/or decontaminate all waste, waste residues, leachate, and contaminated media to background levels unaffected by waste management or industrial activities as further specified in §335.554 of this title (relating to Attainment of Risk Reduction Standard Number 1); or(B) Risk Reduction Standard Number 2. Closure/remediation to health-based standards and criteria--to remove and/or decontaminate all waste, waste residues, leachate, and contaminated media to standards and criteria such that any substantial present or future threat to human health or the environment is eliminated as further specified in §335.555 of this title (relating to Attainment of Risk Reduction Standard Number 2); or(C) Risk Reduction Standard Number 3. Closure/remediation with controls--to remove, decontaminate, and/or control all waste, waste residues, leachate, and contaminated media to levels and in a manner such that any substantial present or future threat to human health or the environment is eliminated or reduced to the maximum extent practicable, as further specified in §335.561 of this title (relating to Attainment of Risk Reduction Standard Number 3).(3) Demonstrate in writing to the executive director that closure or remediation has been completed as is further specified in subsection (d) of this section.(4) Perform any necessary post-closure care and deed certification or recordation activities as required by Subchapter S of this chapter (relating to Risk Reduction Standards).(5) Respond on a continuing basis pursuant to paragraphs (1) - (4) of this subsection in the event that a substantial change in circumstances at the facility or area results in an unacceptable threat to human health or the environment. In response to these substantial changes in circumstances, the person shall comply with this subsection utilizing the then-prevailing criteria and perform such actions as necessary to provide protection of human health and the environment. A substantial change in circumstance can include, but is not limited to, the situations described in subparagraphs (A) - (D) of this paragraph.(A) a failure of institutional or engineering controls to prevent or mitigate exposure at the approved performance level;(B) a change in land use from nonresidential to residential; or(C) an actual exposure condition is determined to be occurring at levels not protective of human health or the environment. For purposes of this subparagraph, changes made to Subchapter S of this chapter (relating to Risk Reduction Standards) in response to periodic reviews of the general procedures specified to generate numeric cleanup levels, or in response to annual revisions of Appendix II of Subchapter S to reflect new toxicity data, do not constitute a substantial change in circumstances, unless these changes are of such magnitude to present an unacceptable threat to human health or the environment when evaluated for future exposure conditions based on site-specific considerations; or(D) new information indicates that the contamination at the facility or area was not sufficiently characterized such that an unacceptable threat to human health or the environment continues to exist.(c) Notification and Initiation Requirements. Persons who qualify according to subsection (a) of this section for an extended period of time for submittal of a final report to be reviewed according to this section must also respond, as appropriate, to the requirements of paragraphs (1) - (5) of this subsection.(1) A person who intends to continue any activity of closure or remediation in accordance with subsection (b) of this section shall determine the risk reduction standard(s) to be attained. If required by subsection (a) of this section to resubmit this notification, the person shall notify the executive director and the commission's office in the district where the facility or area is located in writing of the following information by May 1, 2001:(A) the facility or area to be subject to closure or remediation activities;(B) the risk reduction standard(s) to be attained; and(C) the estimated time necessary to complete the activity.(2) After performing notification in accordance with paragraph (1) of this subsection, the person may initiate the actions necessary to attain risk reduction standard numbers 1 or 2 without prior approval by the executive director, unless such approval is required by other regulation, order, or permit of the commission. Any plan submitted for prior approval by the executive director shall contain the information specified in §335.553(a) of this title (relating to Required Information).(3) If the person intends to attain Risk Reduction Standard Number 3, the person shall submit to the executive director the information specified in §335.553(b) of this title for approval prior to beginning or continuing, as applicable, the closure or remediation activities.(4) The person may include one or more waste management units or areas in a submittal for the purpose of responding to this subsection and subsection (d) of this section.(5) Notwithstanding any other requirement, the person shall submit to the executive director upon request such information as may reasonably be required to enable the executive director to determine whether the closure or remediation is compliant with this section.(d) Demonstration of conformance with risk reduction standards. Upon completion of a closure or remediation, the person shall demonstrate in a form acceptable to the executive director that the activity meets the intended risk reduction standards and any applicable closure criteria listed or referenced in this chapter. Any submittal to the executive director in response to this subsection shall be in the form of a plan or report that contains the information specified in §335.553 of this title.</content><note type="source"><p>Source Note: The provisions of this §335.8 adopted to be effective May 29, 1986, 11 TexReg 2335; amended to be effective September 1, 1986, 11 TexReg 3692; amended to be effective June 28, 1993, 18 TexReg 3814; amended to be effective September 23, 1999, 24 TexReg 7426.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.9"><num value="335.9">§335.9</num><heading>Recordkeeping and Annual Reporting Procedures Applicable to Generators</heading><content>(a) A generator of hazardous or industrial solid waste shall comply with the recordkeeping and reporting requirements of this section. Nonhazardous recyclable materials regulated under §335.24(h) of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials), are not subject to the requirements of this section.(1) A generator shall make and keep records of all hazardous and industrial solid waste activities regarding the quantities generated, received from off-site, stored, processed, and disposed of on-site or shipped off-site for storage, processing, recycling, or disposal. These records must, at a minimum, include the information described in subparagraphs (A) - (G) of this paragraph. These records must be maintained in a readily retrievable format. The required records must be sufficiently detailed and complete to support any contentions or claims made by the generator with respect to:(A) the description, character, and classification of each waste, in accordance with Subchapter R of this chapter (relating to Waste Classification) and any changes and additional information required under §335.6(c) and (d) of this title (relating to Notification Requirements);(B) the quantity generated;(C) except generators that generate less than 100 kilograms of non-acute hazardous waste, less than 1 kilogram of acute hazardous waste, and less than 100 kilograms of industrial Class 1 waste per calendar month, the quantity held in on-site storage as of December 31 of each calendar year;(D) the quantity processed or disposed of at each on-site facility unit during the calendar year;(E) the method of storage, processing, or disposal as described by codes listed on the form or instructions;(F) the quantity shipped off-site for storage, processing, or disposal each calendar year, including the transporter and the name, address, and location of each off-site facility receiving shipments; and(G) the location of each hazardous waste satellite accumulation area where hazardous wastes are temporarily accumulated in accordance with §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste).(2) The generator shall submit to the executive director a complete and correct Annual Waste Summary using the electronic interface, paper forms, or other method approved by the executive director by the deadlines provided in, and in accordance with, this paragraph.(A) Generators submitting their Annual Waste Summary on paper forms must do so on or before January 25 of the year following the reporting calendar year unless the executive director has approved a request for an extension.(B) Generators submitting their Annual Waste Summary electronically must do so on or before March 1 of the year following the reporting calendar year unless the executive director has approved a request for an extension.(C) The Annual Waste Summary shall include the information under paragraph (1) of this subsection and detailed information regarding:(i) the management of each hazardous and industrial Class 1 waste generated on-site during the reporting calendar year;(ii) the management of each hazardous and industrial Class 1 waste received from off-site during the reporting calendar year; and(iii) the management of each hazardous and industrial Class 1 waste received from off-site or generated in a year prior to the reporting year and managed on-site during the reporting calendar year.(D) A large quantity generator must submit the Annual Waste Summary using the electronic interface provided by the executive director unless the executive director has approved an alternative reporting method.(3) A generator that certifies on the Annual Waste Summary that the generator met the conditions in this paragraph during the reporting calendar year is not required to submit the information in paragraph (2) of this subsection.(A) The volume of hazardous waste accumulated on-site did not exceed the volumes for a very small generator classification in 40 Code of Federal Regulations (CFR) §262.14(a)(3) and (4) as adopted under §335.53 of this title.(B) The generator generated less than:(i) 1,200 kilograms of non-acute hazardous waste;(ii) 1,200 kilograms of industrial Class 1 waste; and(iii) 1 kilogram of acute hazardous waste.(4) A generator is not required to submit an Annual Waste Summary if, during the entire calendar year, that generator:.(A) meets the conditions for exemption for a very small quantity generator under §335.53 of this title;(B) generates less than 100 kilograms of industrial class 1 waste per month; and(C) meets the requirements of paragraph (3) of this subsection.(b) A large quantity generator that ships hazardous waste off-site, treats, stores, or disposes of hazardous waste onsite, or receives hazardous waste from very small quantity generators must submit the biennial report information required by 40 CFR §262.41, adopted under §335.56 of this title (relating to Recordkeeping and Reporting Applicable to Small and Large Quantity Generators). Information submitted in accordance with Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste in General), Subchapter C of this chapter (relating to Standards Applicable to Generators of Hazardous Waste), and Subchapter R of this chapter (relating to Waste Classification) is not required to be resubmitted in a biennial report required by 40 CFR §262.41.</content><note type="source"><p>Source Note: The provisions of this §335.9 adopted to be effective July 14, 1987, 12 TexReg 2106; amended to be effective November 27, 1992, 17 TexReg 8010; amended to be effective February 4, 1994, 19 TexReg 509; amended to be effective March 1, 1996, 21 TexReg 1425; amended to be effective November 20, 1996, 21 TexReg 10983; amended to be effective December 15, 1997, 22 TexReg 12060; amended to be effective May 20, 1999, 24 TexReg 3726; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective February 3,2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.10"><num value="335.10">§335.10</num><heading>Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste</heading><content>(a) Except as provided in paragraph (2) of this subsection, no person who generates, transports, processes, stores, or disposes of hazardous waste shall cause, suffer, allow, or permit the shipment of hazardous waste unless the person complies with this subsection, §335.12 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities), §335.13 of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators Shipping Hazardous Waste or Class 1 Waste), §335.54 of this title (relating to Hazardous Waste Manifest), and §335.58 of this title (relating to Transboundary Movements of Hazardous Waste for Recovery or Disposal).(1) In addition, generators and owners or operators of treatment, storage, or disposal facilities shall include a Texas waste code for each hazardous waste itemized on the manifest.(2) The manifest required by this subsection is not required for the transportation of hazardous waste when all of the conditions of an applicable exemption from manifesting have been met, including and not limited to the exemptions in this paragraph and subsection (b) of this section.(A) The manifesting requirements of this section are not applicable to the transportation of hazardous waste generated by a very small quantity generator (VSQG) that meets the conditions for exemption in 40 Code of Federal Regulations (CFR) §262.14 as adopted in §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste).(B) The manifesting requirements of this section are not applicable to the transportation of potentially creditable hazardous waste pharmaceuticals from a healthcare facility or a reverse distributor to a reverse distributor in compliance with §335.769 of this title (relating to Shipping Potentially Creditable Hazardous Waste Pharmaceuticals from a Healthcare Facility or a Reverse Distributor to a Reverse Distributor).(b) The manifesting and marking requirements of §335.55 of this title (relating to Pre-Transport Requirements Applicable to Small and Large Quantity Generators) are not applicable to the transportation of hazardous waste on a public or private right-of-way within or along the border of contiguous property under the control of the same person, even if such contiguous property is divided by a public or private right-of-way. However, in the event of a hazardous waste discharge on a public or private right-of-way, the generator or transporter must comply with the requirements of §335.93 of this title (relating to Hazardous Waste Discharges).(c) Except as provided in subsections (d) and (e) of this section, persons who generate, transport, process, store, or dispose of Class 1 waste shall not cause, suffer, allow, or permit the shipment of Class 1 waste unless the person complies with the manifest requirements adopted in §335.54 of this title with the following changes and additions:(1) when Class 1 waste is itemized on the manifest, either the Texas Commission on Environmental Quality solid waste registration (SWR) number or the United States Environmental Protection Agency (EPA) identification number must identify the generator, transporter, and designated facility; and the Texas waste code, instead of the EPA waste code, must identify the waste;(2) when both hazardous and Class 1 waste are itemized on the same manifest, the EPA identification numbers, not SWR numbers, must identify the generator, transporter, and designated facility; and the Texas waste codes must identify each waste itemized on the manifest;(3) the term "Designated facility" has the meaning in §335.1 of this title (relating to Definitions);(4) the term "Hazardous waste" is replaced by the term "Class 1 waste";(5) the exceptions for hazardous waste being reclaimed under 40 CFR §262.20(e) are not applicable to transportation of Class 1 waste;(6) in the event of a discharge on a public right of way, the generator or transporter must comply with Chapter 327 of this title (relating to Spill Prevention and Control) and §335.93 of this title instead of complying with 40 CFR §263.30 and §263.31 as required by 40 CFR §262.20(f); and(7) waste minimization certification required by 40 CFR §262.27 is not applicable to Class 1 waste.(d) No manifest is required for the shipment of Class 1 waste generated by a person that generated less than 100 kilograms of Class 1 waste during the calendar month in which the subject Class 1 waste was generated.(e) No manifest is required for the shipment of Class 1 waste to property owned or otherwise effectively controlled by the owner or operator of an industrial plant, manufacturing plant, mining operation, or agricultural operation from which the waste results or is produced, provided that:(1) the property is within 50 miles of the plant or operation;(2) the waste is not commingled with waste from any other source or sources. An industrial plant, manufacturing plant, mining operation, or agricultural operation owned by one person shall not be considered another source with respect to other plants or operations owned by the same person; and(3) the owner or operator of a facility that receives and stores, processes, or disposes Class 1 waste from off-site in compliance with an exception from permit required in §335.2(d)(1) or (2) of this title (relating to Permit Required) must report Class 1 industrial waste received from off-site in the Annual Waste Summary submitted for the receiving facility in accordance with §335.9 of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators).</content><note type="source"><p>Source Note: The provisions of this §335.10 adopted to be effective July 14, 1987, 12 TexReg 2106; amended to be effective July 27, 1988, 13 TexReg 3515; amended to be effective November 27, 1992, 17 TexReg 8010; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective April 24, 1995, 20 TexReg 2709; amended to be effective March 1, 1996, 21 TexReg 1425; amended to be effective May 20, 1999, 24 TexReg 3726; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective August 31, 2006, 31 TexReg 6755; amended to be effective February 21, 2013, 38 TexReg 978; amended to be effective June 16, 2016, 41 TexReg 4259; amended to be effective June 11, 2020, 45 TexReg 3780; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.11"><num value="335.11">§335.11</num><heading>Shipping Requirements for Transporters of Hazardous Waste or Class 1 Waste</heading><content>(a) Incorporation by reference. The commission adopts by reference 40 Code of Federal Regulations (CFR) Part 263, Subpart B (Compliance With the Manifest System and Recordkeeping), as amended through the January 3, 2018 issue of the Federal Register (83 FR 420).(b) Hazardous waste transporters. Except as provided by §335.10(a)(2) of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste), persons who transport hazardous waste must comply with: (1) subsection (a) of this section;(2) §335.4 of this title (relating to General Prohibitions);(3) §335.6 of this title (relating to Notification Requirements);(4) §335.10 of this title; (5) §335.14 of this title (relating to Recordkeeping Requirements Applicable to Transporters of Hazardous Waste or Class 1 Waste); and(6) Subchapter D of this chapter (relating to Standards Applicable to Transporters of Hazardous Waste). (c) Class 1 industrial waste transporters. Except as provided by §335.10 of this title, a person who transports Class 1 waste shall comply with subsection (b)(1) - (5) of this section and the manifesting requirements adopted under subsection (a) of this section, with the changes and additions in this subsection. (1) When only Class 1 waste is itemized on the manifest, a Texas Commission on Environmental Quality solid waste registration (SWR) number or a United States Environmental Protection Agency (EPA) identification number may be used for the generator, transporter, and designated facility. (2) When both hazardous and Class 1 industrial waste are itemized on the same manifest, an EPA identification number must be used for the generator, transporter, and designated facility. (3) A Texas waste code, instead of an EPA waste code, must identify each Class 1 waste itemized on the manifest. (4) The term "Hazardous waste" is changed to the term "Class 1 waste."(5) The import and export requirements of 40 CFR §263.20(a)(2), (c), and (g) are not applicable to the transportation of Class 1 waste.(6) The exclusion from manifesting requirements for hazardous waste being transported pursuant to a reclamation agreement under 40 CFR §263.20(h) is not applicable to the transportation of Class 1 waste.(7) In the event of a spill or discharge of Class 1 waste during transportation, the transporter shall notify the commission in accordance with Chapter 327 of this title (relating to Spill Prevention and Control), and Texas Water Code, §26.039, and take appropriate immediate action to protect human health and the environment (e.g., notify local authorities, dike the discharge).(8) A transporter shall clean up any Class 1 waste spill or discharge that occurs during transportation or take such action as required in §327.5 of this title (relating to Actions Required) so that the Class 1 waste discharge no longer presents a hazard to human health or the environment.</content><note type="source"><p>Source Note: The provisions of this §335.11 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.12"><num value="335.12">§335.12</num><heading>Shipping Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities</heading><content>(a) Except as provided by §335.10(a)(2) of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste), persons who generate, process, store, or dispose of hazardous waste must comply with this subsection as well as subsections (c) and (d) of this section and 40 Code of Federal Regulations (CFR) Part 264, Subpart E (Manifest System, Recordkeeping, and Reporting), as adopted in §335.152 of this title (relating to Standards) or 40 CFR Part 265, Subpart E (Manifest System, Recordkeeping, and Reporting), as adopted in §335.112 of this title (relating to Standards).(b) Except as provided by §335.10(d) and (e) of this title, persons who generate, transport, process, store, or dispose of Class 1 waste must comply with this subsection as well as subsections (c) and (d) of this section and 40 CFR Part 264, Subpart E as adopted in §335.152 of this title with the changes in this subsection.(1) "Hazardous waste" is changed to "Class 1 waste."(2) When only Class 1 waste is itemized on the manifest a Texas Commission on Environmental Quality solid waste registration number or a United States Environmental Protection Agency identification number may be used for the generator, transporter, and designated facility.(3) "Regional Administrator" is changed to "Executive director."(4) The requirements of 40 CFR Part 262, Subpart H (Transboundary Movements of Hazardous Waste for Recovery or Disposal) are not applicable to Class 1 waste imported from outside of the United States. (c) The commission adopts by reference 40 CFR §260.4 (Manifest copy submission requirements for certain interstate waste shipments), as adopted in the Federal Register on January 3, 2018 (83 FR 420).(d) The commission adopts by reference 40 CFR §260.5 (Applicability of electronic manifest system and user fee requirements to facilities receiving state-only regulated waste shipments) as adopted in the Federal Register on January 3, 2018 (83 FR 420).</content><note type="source"><p>Source Note: The provisions of this §335.12 adopted to be effective May 28, 1986, 11 TexReg 2335; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective July 27, 1988, 13 TexReg 3515; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective August 31, 2006, 31 TexReg 6755; amended to be effective February 21, 2013, 38 TexReg 978; amended to be effective June 16, 2016, 41 TexReg 4259; amended tobe effective June 11, 2020, 45 TexReg 3780; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.13"><num value="335.13">§335.13</num><heading>Recordkeeping and Reporting Procedures Applicable to Generators Shipping Hazardous Waste or Class 1 Waste</heading><content>(a) The requirements of this section do not apply to a generator that generates less than 100 kilograms of Class 1 waste, 100 kilograms of hazardous waste, and 1 kilogram of acute hazardous in a calendar month, by site.(b) An unregistered generator that ships hazardous waste or Class 1 waste shall prepare a complete and correct Waste Shipment Summary from the manifests.(c) The Waste Shipment Summary shall be prepared in a form provided or approved by the executive director and submitted to the executive director on or before the 25th of each month for shipments originating during the previous month. An unregistered generator must keep a copy of each summary for a period of at least three years from the due date of the summary. An unregistered generator must prepare and submit a Waste Shipment Summary only for those months in which shipments are actually made.(d) A registered generator is defined as an in-state generator who has complied with §335.6 of this title (relating to Notification Requirements) and has an active solid waste registration number.(e) An unregistered generator is defined as an in-state generator that:(1) does not have an active solid waste registration;(2) in a calendar month generates more than 100 kilograms of non-acute hazardous waste, 1 kilogram of acute hazardous waste, or 100 kilograms of Class 1 waste; and(3) ships hazardous waste and/or Class 1 industrial waste using a temporary solid waste registration number and a temporary Texas waste code that begins with a four-character sequence number assigned by the executive director.(f) Both registered and unregistered generators shall comply with the manifest and recordkeeping requirements under §335.10 of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste).</content><note type="source"><p>Source Note: The provisions of this §335.13 adopted to be effective May 28, 1986, 11 TexReg 2335; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective July 27, 1988, 13 TexReg 3515; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective February 4, 1994, 19 TexReg 509; amended to be effective June 4, 1997, 22 TexReg 4585; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective November 15, 2001, 26 TexReg 9135; amendedtobe effective February 21, 2013, 38 TexReg 978; amended to be effective June 11, 2020, 45 TexReg 3780; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.14"><num value="335.14">§335.14</num><heading>Recordkeeping Requirements Applicable to Transporters of Hazardous Waste or Class 1 Waste</heading><content>A hazardous waste transporter and a Class 1 waste transporter shall comply with the manifesting and recordkeeping requirements of 40 Code of Federal Regulations (CFR) Part 263, Subpart B as adopted under §335.11 of this title (relating to Shipping Requirements for Transporters of Hazardous Waste or Class 1 Waste).</content><note type="source"><p>Source Note: The provisions of this §335.14 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.15"><num value="335.15">§335.15</num><heading>Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities</heading><content>This section applies to owners and operators of facilities that receive hazardous waste or Class 1 waste from off-site sources and owners and operators of facilities that have notified the executive director of the intent to receive hazardous waste or Class 1 waste from off-site sources.(1) Manifest requirements. The owner or operator of the treatment, storage, or disposal facility designated on the manifest shall comply with the manifesting and recordkeeping requirements of 40 Code of Federal Regulations (CFR) Part 264, Subpart E as adopted under §335.152 of this title (relating to Standards) or 40 CFR Part 265, Subpart E as adopted under §335.112 of this title (relating to Standards), the manifest copy submission requirements for certain interstate waste shipments in 40 CFR §260.4 as adopted under §335.12 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities), the electronic manifest system and user fees for facilities that receive state-only regulated waste shipments requirements in 40 CFR §260.5 as adopted under §335.12 of this title, and 40 CFR Part 262, Subpart B as adopted under §335.54 of this title (relating to Hazardous Waste Manifest).(2) Monthly Waste Receipt Summary. Except as provided in paragraph (6) of this section or as provided in §335.24(h) of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials), the owner or operator shall prepare a complete and correct Monthly Waste Receipt Summary in accordance with this paragraph. The owner or operator shall:(A) submit a Monthly Waste Receipt Summary on or before the 25th of every month;(B) include all manifested and unmanifested hazardous and Class 1 waste shipments received during the previous month, if any;(C) use the electronic interface provided by the executive director unless the executive director has approved an alternative reporting method; and(D) identify the methods of treatment, storage, and disposal of waste and units of measure using abbreviations and codes provided by the executive director.(3) Unmanifested waste report. An owner or operator shall comply with the unmanifested waste reporting requirements of this paragraph.(A) An owner or operator that accepts hazardous waste from an off-site source that is not excluded from the manifest requirements of this chapter and is not accompanied by a manifest shall complete and submit an unmanifested waste report within 15 days after receiving the waste to the executive director that includes:(i) the United States Environmental Protection Agency (EPA) identification (ID) number, solid waste registration (SWR) number, name, and address of the facility;(ii) the date the facility received the waste;(iii) the EPA ID number, SWR number, name, and address of the generator and the transporter, if available;(iv) a description and the quantity of each unmanifested hazardous waste the facility received which was not accompanied by a manifest;(v) the method of treatment, storage, or disposal for each hazardous waste;(vi) the certification signed by the owner or operator of the facility or his authorized representative; and(vii) a brief explanation of why the waste was unmanifested, if known.(B) An owner or operator that accepts Class 1 waste, that is not excluded from the manifest requirements of this chapter, from an off-site source without an accompanying manifest shall complete and submit an unmanifested waste report to the executive director within 15 days after receiving the waste that contains:(i) the EPA ID number, SWR number, name, and address of the receiving facility;(ii) the date the facility received the waste;(iii) the EPA identification number, SWR number, name, and address of the generator and the transporter, if available;(iv) a description and the quantity of each unmanifested Class 1 waste the facility received which was not accompanied by a manifest;(v) the method of treatment, storage, or disposal for each Class 1 hazardous waste;(vi) the certification signed by the owner or operator of the facility or his authorized representative; and(vii) a brief explanation of why the waste was unmanifested, if known.(4) Records retention. The owner or operator shall retain a copy of each summary required by paragraphs (2) and (3) of this section for a minimum of three years from the date of each summary.(5) Extended records retention. The period of record retention required by this section is automatically extended during the course of any unresolved enforcement action regarding the regulated activity.(6) Monthly Waste Receipt Summary for reclamation of hazardous waste generated by very small quantity generators. An owner or operator reclaiming hazardous wastes received from a very small quantity generator shall complete and submit a Monthly Waste Receipt Summary unless the executive director has approved an exception from reporting.(7) Biennial report information provided in a Monthly Waste Receipt Summary. Information which has already been submitted by permitted or interim status facilities under the requirements of this section and of Subchapter A of this chapter need not be included in the reports required by 40 CFR §264.75 or §265.75 (relating to Biennial Reports), as adopted under §335.112 and §335.152 of this title; these biennial reports must be submitted to the executive director using a method approved by the executive director rather than by EPA form.(8) Class 1 industrial waste received from off-site reported in Annual Waste Summary. The owner or operator of a facility that stores, processes or disposes Class 1 industrial waste received from off-site in accordance with an exception from permit required under §335.2(d)(1) or (2) of this title (relating to Permit Required), must report Class 1 industrial waste received from off-site on the Annual Waste Summary submitted for the receiving facility in accordance with §335.9 of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators).</content><note type="source"><p>Source Note: The provisions of this §335.15 adopted to be effective May 28, 1986, 11 TexReg 2335; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective July 27, 1988, 13 TexReg 3515; amended to be effective February 4, 1994, 19 TexReg 509; amended to be effective November 20, 1996, 21 TexReg 10983; amended to be effective December 15, 1997, 22 TexReg 12060; amended to be effective May 20, 1999, 24 TexReg 3726; amended to be effective August 31, 2006, 31 TexReg6755; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.17"><num value="335.17">§335.17</num><heading>Special Definitions for Recyclable Materials and Nonhazardous Recyclable Materials</heading><content>(a) For the purposes of the definition of "Solid waste" in §335.1 of this title (relating to Definitions) and §335.24 of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials):(1) A spent material is any material that has been used and as a result of contamination can no longer serve the purpose for which it was produced without processing.(2) Sludge has the same meaning used in Texas Health and Safety Code, §361.003.(3) A by-product is a material that is not one of the primary products of a production process and is not solely or separately produced by the production process. Examples are process residues such as slags or distillation column bottoms. The term does not include a co-product that is produced for the general public's use and is ordinarily used in the form in which it is produced by the process.(4) A material is reclaimed if it is processed to recover a usable product, or if it is regenerated. Examples are recovery of lead values from spent batteries and regeneration of spent solvents. For purposes of 40 Code of Federal Regulations (CFR) §261.4(a)(23) and (24), smelting, melting, and refining furnaces are considered to be solely engaged in metals reclamation if the metal recovery from the hazardous secondary materials meets the same requirements as those specified for metals recovery from hazardous waste found in §335.221(a)(1) of this title (relating to Applicability and Standards), and if the residuals meet the requirements specified in §335.221(a)(23) of this title.(5) A material is used or reused if it is either:(A) employed as an ingredient (including use as an intermediate) in an industrial process to make a product (for example, distillation bottoms from one process used as feedstock in another process). However, a material will not satisfy this condition if distinct components of the material are recovered as separate end products (as when metals are recovered from metal-containing secondary materials); or(B) employed in a particular function or application as an effective substitute for a commercial product (for example, spent pickle liquor used as phosphorous precipitant and sludge conditioner in wastewater treatment).(6) Scrap metal is bits and pieces of metal parts (e.g., bars, turnings, rods, sheets, wires) or metal pieces that may be combined together with bolts or soldering (e.g., radiators, scrap automobiles, railroad box cars), which when worn or superfluous can be recycled.(7) A material is recycled if it is used, reused, or reclaimed.(8) A material is accumulated speculatively if it is accumulated before being recycled. A material is not accumulated speculatively, however, if the person accumulating it can show that the material is potentially recyclable and has a feasible means of being recycled; and that, during the calendar year (commencing on January 1), the amount of material that is recycled, or transferred to a different site for recycling, equals at least 75% by weight or volume of the amount of that material accumulated at the beginning of the period. Materials must be placed in a storage unit with a label indicating the first date that the material began to be accumulated. If placing a label on the storage unit is not practicable, the accumulation period must be documented through an inventory log or other appropriate method. In calculating the percentage of turnover, the 75% requirement is to be applied to each material of the same type (e.g., slags from a single smelting process) that is recycled in the same way (i.e., from which the same material is recovered or that is used in the same way). Materials accumulating in units that would be exempt from regulation under 40 CFR §261.4(c) are not to be included in making the calculation. (Materials that are already defined as solid wastes also are not to be included in making the calculation.) Materials are no longer in this category once they are removed from accumulation for recycling, however.(9) Excluded scrap metal is processed scrap metal, unprocessed home scrap metal, and unprocessed prompt scrap metal.(10) Processed scrap metal is scrap metal which has been manually or physically altered to either separate it into distinct materials to enhance economic value or to improve the handling of materials. Processed scrap metal includes, but is not limited to, scrap metal which has been baled, shredded, sheared, chopped, crushed, flattened, cut, melted, or separated by metal type (i.e., sorted), and, fines, drosses and related materials which have been agglomerated. (Note: shredded circuit boards being sent for recycling are not considered processed scrap metal. They are covered under the exclusion from the definition of solid waste for shredded circuit boards being recycled (40 CFR §261.4(a)(14)).(11) Home scrap metal is scrap metal as generated by steel mills, foundries, and refineries such as turnings, cuttings, punchings, and borings.(12) Prompt scrap metal is scrap metal as generated by the metal working/fabrication industries and includes such scrap metal as turnings, cuttings, punchings, and borings. Prompt scrap is also known as industrial or new scrap metal.(b) Other portions of this chapter that relate to solid wastes that are recycled include §335.1 of this title, under the definition of "Solid waste", §335.6 of this title (relating to Notification Requirements), §335.18 of this title (relating to Non-Waste Determinations and Variances from Classification as a Solid Waste), §335.19 of this title (relating to Standards and Criteria for Variances from Classification as a Solid Waste), §335.20 of this title (relating to Variance To Be Classified as a Boiler), §335.21 of this title (relating to Procedures for Variances from Classification as a Solid Waste or To Be Classified as a Boiler or for Non-Waste Determinations), §335.22 of this title (relating to Additional Regulation of Certain Hazardous Waste Recycling Activities on a Case-by-Case Basis), §335.23 of this title (relating to Procedures for Case-by-Case Regulation of Hazardous Waste Recycling Activities), §335.24 of this title, Subchapter H of this chapter (relating to Standards for the Management of Specific Wastes and Specific Types of Facilities), and Subchapter V of this chapter (relating to Standards for Reclamation of Hazardous Secondary Materials).</content><note type="source"><p>Source Note: The provisions of this §335.17 adopted to be effective May 28, 1986, 11 TexReg 2335; amended to be effective September 1, 1986, 11 TexReg 3692; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective April 4, 1999, 24 TexReg 2352; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective June 16, 2016, 41 TexReg 4259.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.18"><num value="335.18">§335.18</num><heading>Non-Waste Determinations and Variances from Classification as a Solid Waste</heading><content>(a) In accordance with the standards and criteria in §335.19 of this title (relating to Standards and Criteria for Variances from Classification as a Solid Waste) and §335.32 of this title (relating to Standards and Criteria for Non-Waste Determinations), and in accordance with the procedures in §335.21 of this title (relating to Procedures for Variances from Classification as a Solid Waste or To Be Classified as a Boiler or for Non-Waste Determinations) the executive director may determine on a case-by-case basis that the following recyclable materials and nonhazardous recyclable materials are not solid wastes:(1) materials that are accumulated speculatively without sufficient amounts being recycled (as defined in §335.17 of this title (relating to Special Definitions for Recyclable Materials and Nonhazardous Recyclable Materials));(2) materials that are reclaimed and then reused within the original production process in which they were generated;(3) materials that have been reclaimed but must be reclaimed further before the materials are completely recovered;(4) hazardous secondary materials that are reclaimed in a continuous industrial process; or(5) hazardous secondary materials that are indistinguishable in all relevant aspects from a product or intermediate.(b) Other portions of this chapter that relate to solid wastes that are recycled include §335.1 of this title (relating to Definitions), under the definition of "Solid waste," §335.6 of this title (relating to Notification Requirements), §335.17 of this title, §335.19 of this title, §335.20 of this title (relating to Variance To Be Classified as a Boiler), §335.21 of this title, §335.22 of this title (relating to Additional Regulation of Certain Hazardous Waste Recycling Activities on a Case-by-Case Basis), §335.23 of this title (relating to Procedures for Case-by-Case Regulation of Hazardous Waste Recycling Activities), §335.24 of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials), Subchapter H of this chapter (relating to Standards for the Management of Specific Wastes and Specific Types of Facilities), and Subchapter V of this title (relating to Standards for Reclamation of Hazardous Secondary Materials).</content><note type="source"><p>Source Note: The provisions of this §335.18 adopted to be effective May 29, 1986, 11 TexReg 2335; amended to be effective March 1, 1996, 21 TexReg 1425; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective June 16, 2016, 41 TexReg 4259; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.19"><num value="335.19">§335.19</num><heading>Standards and Criteria for Variances from Classification as a Solid Waste</heading><content>(a) The executive director may grant requests for a variance from classifying as a solid waste those materials that are accumulated speculatively without sufficient amounts being recycled if the applicant demonstrates that sufficient amounts of the material will be recycled or transferred for recycling in the following year. If a variance is granted, it is valid only for the following year, but can be renewed, on an annual basis, by filing a new application. The executive director's decision will be based on the following criteria:(1) the manner in which the material is expected to be recycled, when the material is expected to be recycled, and whether this expected disposition is likely to occur (for example, because of past practice, market factors, the nature of the material, or contractual arrangements for recycling);(2) the reason that the applicant has accumulated the material for one or more years without recycling 75% of the weight or volume accumulated at the beginning of the year;(3) the quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is recycled;(4) the extent to which the material is handled to minimize loss; and(5) other relevant factors.(b) The executive director may grant requests for a variance from classifying as a solid waste those materials that are reclaimed and then reused as feedstock within the original production process in which the materials were generated if the reclamation operation is an essential part of the production process. This determination will be based on the following criteria:(1) how economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials;(2) the extent to which the material is handled before reclamation to minimize loss;(3) the time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process;(4) the location of the reclamation operation in relation to the production process;(5) whether the reclaimed material is used for the purpose for which it was originally produced when it is returned to the original process, and whether it is returned to the process in substantially its original form;(6) whether the person who generates the material also reclaims it; and(7) other relevant factors.(c) The executive director may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that have been partially reclaimed, but must be reclaimed further before recovery is completed, if the partial reclamation has produced a commodity-like material. A determination that a partially-reclaimed material for which the variance is sought is commodity-like material will be based on whether the hazardous secondary material is legitimately recycled as specified in §335.27 of this title (relating to Legitimate Recycling of Hazardous Secondary Materials) and on whether all of the following decision criteria are satisfied:(1) whether the degree of partial reclamation the material has undergone is substantial as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste;(2) whether the partially reclaimed material has sufficient economic value that it will be purchased for further reclamation;(3) whether the partially reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials which is used in subsequent production steps;(4) whether there is a market for the partially reclaimed material as demonstrated by known customer(s) who are further reclaiming the material (e.g., records of sales and/or contracts and evidence of subsequent use, such as bills of lading);(5) whether the partially reclaimed material is handled to minimize loss; and(6) other relevant factors.(d) Other portions of this chapter that relate to solid wastes that are recycled include §335.1 of this title (relating to Definitions), under the definition of "Solid waste," §335.6 of this title (relating to Notification Requirements), §335.17 of this title (relating to Special Definitions for Recyclable Materials and Nonhazardous Recyclable Materials), §335.18 of this title (relating to Non-Waste Determinations and Variances from Classification as a Solid Waste), §335.20 of this title (relating to Variance To Be Classified as a Boiler), §335.21 of this title (relating to Procedures for Variances from Classification as a Solid Waste or To Be Classified as a Boiler or for Non-Waste Determinations), §335.22 of this title (relating to Additional Regulation of Certain Hazardous Waste Recycling Activities on a Case-by-Case Basis), §335.23 of this title (relating to Procedures for Case-by-Case Regulation of Hazardous Waste Recycling Activities), §335.24 of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials), Subchapter H of this chapter (relating to Standards for the Management of Specific Wastes and Specific Types of Facilities), and Subchapter V of this chapter (relating to Standards for Reclamation of Hazardous Secondary Materials).</content><note type="source"><p>Source Note: The provisions of this §335.19 adopted to be effective May 28, 1986, 11 TexReg 2335; amended to be effective March 1, 1996, 21 TexReg 1425; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective February 21, 2013, 38 TexReg 978; amended to be effective June 16, 2016, 41 TexReg 4259; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.20"><num value="335.20">§335.20</num><heading>Variance To Be Classified as a Boiler</heading><content>In accordance with the standards and criteria in §335.1 of this title (relating to Definitions) (definition of boiler), and the procedures in §335.21 of this title (relating to Procedures for Variances from Classification as a Solid Waste or to be Classified as a Boiler), the executive director may determine on a case-by-case basis that certain enclosed devices using controlled flame combustion are boilers, even though they do not otherwise meet the definition of boiler contained in §335.1 of this title (relating to Definitions), after considering the following criteria:(1) the extent to which the unit has provisions for recovering and exporting thermal energy in the form of steam, heated fluids, or heated gases;(2) the extent to which the combustion chamber and energy recovery equipment are of integral design;(3) the efficiency of energy recovery, calculated in terms of the recovered energy compared with the thermal value of the fuel;(4) the extent to which exported energy is utilized;(5) the extent to which the device is in common and customary use as a boiler functioning primarily to produce steam, heated fluids, or heated gases; and(6) other factors, as appropriate.</content><note type="source"><p>Source Note: The provisions of this §335.20 adopted to be effective May 29, 1986, 11 TexReg 2335.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.21"><num value="335.21">§335.21</num><heading>Procedures for Variances from Classification as a Solid Waste or To Be Classified as a Boiler or for Non-Waste Determinations</heading><content>The executive director will use the following procedures in evaluating applications for variances from classification as a solid waste, applications to classify particular enclosed flame combustion devices as boilers, and applications for non-waste determinations:(1) the owner or operator must apply to the executive director for the variance. The application must address the relevant criteria contained in §335.19 of this title (relating to Standards and Criteria for Variances from Classification as a Solid Waste) or §335.20 of this title (relating to Variance To Be Classified as a Boiler);(2) the owner or operator must apply to the executive director for the non-waste determination. The application must address the relevant criteria referenced in §335.32 of this title (relating to Standards and Criteria for Non-Waste Determinations);(3) the executive director will evaluate the application and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be provided by newspaper advertisement or radio broadcast in the locality where the recycler is located. The executive director will accept comment on the tentative decision for 30 days, and may also hold a public meeting upon request or at his discretion. The executive director will issue a final decision after receipt of comments and after the public meeting (if any). Any person affected by a final decision of the executive director may file with the chief clerk a motion to overturn, in accordance with §50.139 of this title (relating to Motion to Overturn Executive Director's Decision);(4) in the event of a change in circumstances that affect how a hazardous secondary material meets the relevant criteria contained in §§335.19, 335.20, or 335.32 of this title, upon which a variance or non-waste determination has been based, the applicant must send a written description of the change in circumstances to the executive director. The executive director may issue a determination that the hazardous secondary material continues to meet the relevant criteria of the variance or non-waste determination or may require the facility to re-apply for the variance or non-waste determination;(5) variances and non-waste determinations shall be effective for a fixed term not to exceed ten years. No later than six months prior to the end of this term, owners or operators of facilities must re-apply for a variance or non-waste determination. If an owner or operator of a facility re-applies for a variance or non-waste determination within six months, the owner or operator of the facility may continue to operate under an expired variance or non-waste determination until receiving a decision on their re-application from the executive director; and(6) owners or operators of facilities receiving a variance or non-waste determination must provide notification as required by §335.26 of this title (relating to Notification Requirements for Hazardous Secondary Materials).</content><note type="source"><p>Source Note: The provisions of this §335.21 adopted to be effective May 29, 1986, 11 TexReg 2335; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective June 16, 2016, 41 TexReg 4259; amended to be effective May 14, 2020, 45 TexReg 3128.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.22"><num value="335.22">§335.22</num><heading>Additional Regulation of Certain Hazardous Waste Recycling Activities on a Case-by-Case Basis</heading><content>The commission may decide on a case-by-case basis that persons accumulating or storing the recyclable materials described in §335.24(b)(3) of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials) should be regulated under §335.24(d)-(f) of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials). The basis for this decision is that the materials are being accumulated or stored in a manner that does not protect human health and the environment because the materials or their toxic constituents have not been adequately contained, or because the materials being accumulated or stored together are incompatible. The procedures for this decision are set forth in §335.23 of this title (relating to Procedures for Case-by-Case Regulation of Hazardous Waste Recycling Activities). In making this decision, the commission will consider the following factors:(1) the types of materials accumulated or stored and the amounts accumulated or stored;(2) the method of accumulation or storage;(3) the length of time the materials have been accumulated or stored before being reclaimed;(4) whether any contaminants are being released into the environment, or are likely to be so released; and(5) other relevant factors.</content><note type="source"><p>Source Note: The provisions of this §335.22 adopted to be effective May 28, 1986, 11 TexReg 2335; amended to be effective September 1, 1986, 11 TexReg 3692; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective November 20, 1996, 21 TexReg 10983.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.23"><num value="335.23">§335.23</num><heading>Procedures for Case-by-Case Regulation of Hazardous Waste Recycling Activities</heading><content>The commission will use the following procedures when determining whether to regulate hazardous waste recycling activities described in §335.24(b)(3) of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials) under the provisions of §335.24(d)-(f) of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials), rather than under the provisions governing Recyclable Materials Utilized for Precious Metal Recovery under Subchapter H of this chapter (relating to Standards for the Management of Specific Wastes and Specific Types of Facilities).(1) If a generator is accumulating the waste, the commission will issue a notice setting forth the factual basis for the decision and stating that the person must comply with the applicable requirements of Subchapters A-C of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste Management in General; Hazardous Waste Management General Provisions; and Standards Applicable to Generators of Hazardous Waste). The notice will become final within 30 days, unless the person served requests a public hearing to challenge the decision. Upon receiving such a request, the commission will hold a public hearing. The commission will provide notice of the hearing to the public and allow public participation at the hearing. The commission will issue a final order after the hearing stating whether or not compliance with Subchapters A-C of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste Management in General; Hazardous Waste Management General Provisions; and Standards Applicable to Generators of Hazardous Waste) is required. A person affected by a final decision or order of the commission may file a petition for judicial review within 30 days after the decision or order is final and appealable, in accordance with Chapter 80 of this title (relating to Contested Case Hearings) and the Texas Administrative Procedure Act, Texas Government Code, Chapter 2001.(2) If the person is accumulating the recyclable material at a storage facility, the notice will state that the person must obtain a permit in accordance with all applicable provisions of Chapter 305 of this title (relating to Consolidated Permits); Chapter 1 of this title (relating to Purpose of Rules, General Provisions); Chapter 3 of this title (relating to Definitions); Chapter 10 of this title (relating to Commission Meetings); Chapter 20 of this title (relating to Rulemaking); Chapter 37 of this title (relating to Financial Assurance); Chapter 39 of this title (relating to Public Notice); Chapter 40 of this title (relating to Alternative Dispute Resolution Procedures); Chapter 50 of this title (relating to Action on Applications); Chapter 55 of this title (relating to Request for Contested Case Hearings); Chapter 70 of this title (relating to Enforcement); Chapter 80 of this title (relating to Contested Case Hearings); Chapter 86 of this title (relating to Special Provisions for Contested Case Hearings); Chapter 261 of this title (relating to Introductory Provisions); and Chapter 277 of this title (relating to Use Determinations for Tax Exemption for Pollution Control Property). The owner or operator of the facility must apply for a permit within no less than 60 days and no more than six months of notice, as specified in the notice. If the owner or operator of the facility wishes to challenge the commission's decision, he may do so in his permit application, in a public hearing held on the draft permit, or in comments filed on the draft permit or on the notice of intent to deny the permit. The proposal for decision accompanying the permit will include the reasons for the commission's determination. The question of whether the commission's decision was proper will remain open for consideration during the public comment period and in any subsequent hearing.</content><note type="source"><p>Source Note: The provisions of this §335.23 adopted to be effective May 29, 1986, 11 TexReg 2335; amended to be effective September 1, 1986, 11 TexReg 3692; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective November 20, 1996, 21 TexReg 10983; amended to be effective October 19, 1998, 23 TexReg 10878.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.24"><num value="335.24">§335.24</num><heading>Requirements for Recyclable Materials and Nonhazardous Recyclable Materials</heading><content>(a) Hazardous wastes that are recycled are subject to the requirements for generators, transporters, and storage facilities of subsections (d) - (f) of this section, except for the materials listed in subsections (b) and (c) of this section. Hazardous wastes that are recycled will be known as recyclable materials. Nonhazardous industrial wastes that are recycled will be known as nonhazardous recyclable materials. Nonhazardous recyclable materials are subject to the requirements of subsections (h) - (l) of this section.(b) The following recyclable materials are not subject to the requirements of this section, except as provided in subsections (g) and (h) of this section, but are regulated under the applicable provisions of Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste in General), Subchapter H of this chapter (relating to Standards for the Management of Specific Wastes and Specific Types of Facilities) and all applicable provisions in Chapter 305 of this title (relating to Consolidated Permits); Chapter 1 of this title (relating to Purpose of Rules, General Provisions); Chapter 3 of this title (relating to Definitions); Chapter 10 of this title (relating to Commission Meetings); Chapter 17 of this title (relating to Tax Relief for Property Used for Environmental Protection); Chapter 20 of this title (relating to Rulemaking); Chapter 37 of this title (relating to Financial Assurance); Chapter 39 of this title (relating to Public Notice); Chapter 40 of this title (relating to Alternative Dispute Resolution Procedure); Chapter 50 of this title (relating to Action on Applications and Other Authorizations); Chapter 55 of this title (relating to Requests for Reconsideration and Contested Case Hearings; Public Comment); Chapter 70 of this title (relating to Enforcement); Chapter 80 of this title (relating to Contested Case Hearings); and Chapter 86 of this title (relating to Special Provisions for Contested Case Hearings).(1) recyclable materials used in a manner constituting disposal;(2) hazardous wastes burned for energy recovery in boilers and industrial furnaces that are not regulated under Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities) or Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities);(3) recyclable materials from which precious metals are reclaimed;(4) spent lead-acid batteries that are being reclaimed.(c) The following recyclable materials are not subject to regulation under Subchapters B - I or O of this chapter (relating to Hazardous Waste Management General Provisions; Standards Applicable to Generators of Hazardous Waste; Standards Applicable to Transporters of Hazardous Waste; Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities; Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities; Location Standards for Hazardous Waste Storage, Processing, or Disposal; Standards for the Management of Specific Wastes and Specific Types of Facilities; Prohibition on Open Dumps; and Land Disposal Restrictions); Chapter 1 of this title; Chapter 3 of this title; Chapter 10 of this title; Chapter 17 of this title; Chapter 20 of this title; Chapter 37 of this title; Chapter 39 of this title; Chapter 40 of this title; Chapter 50 of this title; Chapter 55 of this title; Chapter 70 of this title; Chapter 80 of this title; Chapter 86 of this title; or Chapter 305 of this title, except as provided in subsections (g) and (h) of this section:(1) Industrial ethyl alcohol that is reclaimed except that exports and imports of such recyclable materials must comply with the requirements of 40 Code of Federal Regulations (CFR) Part 262, Subpart H, as adopted under §335.58 of this title (relating to Transboundary Movements of Hazardous Waste for Recovery or Disposal). Transporters transporting a shipment for export may not accept a shipment if they know the shipment does not conform to the United States Environmental Protection Agency (EPA) acknowledgment of consent, must ensure that a copy of the EPA acknowledgment of consent accompanies the shipment, and must ensure that it is delivered to the facility designated by the person initiating the shipment;(2) scrap metal that is not already excluded under 40 CFR §261.4(a)(13) as adopted under §335.504 of this title (relating to Hazardous Waste Determination);(3) fuels produced from the refining of oil-bearing hazardous waste along with normal process streams at a petroleum refining facility if such wastes result from normal petroleum refining, production, and transportation practices (this exemption does not apply to fuels produced from oil recovered from oil-bearing hazardous waste, where such recovered oil is already excluded under 40 CFR §261.4(a)(12), as adopted under §335.504 of this title; and(4) the following hazardous waste fuels:(A) Hazardous waste fuel produced from oil-bearing hazardous wastes from petroleum refining, production or transportation practices, or produced from oil reclaimed from such hazardous wastes where such hazardous wastes are reintroduced into a process that does not use distillation or does not produce products from crude oil so long as the resulting fuel meets the used oil specification under 40 CFR §279.11 and so long as no other hazardous wastes are used to produce the hazardous waste fuel;(B) Hazardous waste fuel produced from oil-bearing hazardous waste from petroleum refining production, and transportation practices, where such hazardous wastes are reintroduced into a refining process after a point at which contaminants are removed, so long as the fuel meets the used oil fuel specification under 40 CFR §279.11;(C) Oil reclaimed from oil-bearing hazardous wastes from petroleum refining, production, and transportation practices, which reclaimed oil is burned as fuel without reintroduction to a refining process, so long as the reclaimed oil meets the used oil fuel specification under 40 CFR §279.11.(d) Generators and transporters of recyclable materials are subject to the applicable requirements of Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste in General), Subchapter C of this chapter, Subchapter D of this chapter, and Subchapter R of this chapter, and the notification requirements of §335.6 of this title (relating to Notification Requirements), except as provided in subsections (a) - (c) of this section.(e) Owners or operators of facilities that store recyclable materials before they are recycled are regulated under all applicable provisions of this chapter, and Chapter 305 of this title; Chapter 1 of this title; Chapter 3 of this title; Chapter 10 of this title; Chapter 17 of this title; Chapter 20 of this title; Chapter 37 of this title; Chapter 39 of this title; Chapter 40 of this title; Chapter 50 of this title; Chapter 55 of this title; Chapter 70 of this title; Chapter 80 of this title; and the notification requirements under §335.6 of this title, except as provided in subsections (a) - (c) of this section. The recycling process itself is exempt from regulation.(f) Owners or operators of facilities that recycle recyclable materials without storing them before they are recycled are subject to the following requirements, except as provided in subsections (a) - (c) of this section:(1) notification requirements under §335.6 of this title;(2) Section 335.12 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities);(3) Section 335.15 of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities); and(4) the biennial reporting requirements of 40 Code of Federal Regulations §264.75 or §265.75 as adopted under §335.112 or §335.152 of this title (relating to Standards; or Standards).(g) Recyclable materials (excluding those listed in subsections (b)(4), and (c)(1) - (5) of this section) remain subject to the requirements of §§335.4, 335.6, and 335.9 - 335.15 of this title (relating to General Prohibitions; Notification Requirements; Recordkeeping and Annual Reporting Procedures Applicable to Generators; Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste; Shipping Requirements for Transporters of Hazardous Waste or Class 1 Waste; Shipping Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities; Recordkeeping and Reporting Procedures Applicable to Generators Shipping Hazardous Waste or Class 1 Waste; Recordkeeping Requirements Applicable to Transporters of Hazardous Waste or Class 1 Waste; and Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities, respectively), as applicable. Recyclable materials listed in subsections (b)(4) and (c)(2) of this section remain subject to the requirements of subsection (h) of this section.(h) Industrial solid wastes that are nonhazardous recyclable materials and recyclable materials listed in subsections (b)(4) and (c)(2) of this section remain subject to the requirements of §335.4 of this title. In addition, industrial solid wastes that are nonhazardous recyclable materials and recyclable materials listed in subsection (c)(2) of this section remain subject to the requirements of §335.6 of this title. Industrial solid wastes that are nonhazardous recyclable materials and recyclable materials listed in subsections (b)(4) and (c)(2) of this section may also be subject to the requirements of §§335.10 - 335.15 of this title, as applicable, if the executive director determines that such requirements are necessary to protect human health and the environment. In making the determination, the executive director shall consider the following criteria:(1) the waste's toxicity, corrosivity, flammability, ability to sensitize or irritate, or propensity for decomposition and creation of sudden pressure;(2) the potential for the objectionable constituent to migrate from the waste into the environment if improperly managed;(3) the persistence of any objectionable constituent or any objectionable degradation product in the waste;(4) the potential for the objectionable constituent to degrade into nonharmful constituents;(5) the degree to which the objectionable constituent bioaccumulates in ecosystems;(6) the plausible types of improper management to which the waste could be subjected;(7) the nature and severity of potential damage to the public health and environment;(8) whether subjecting the waste to additional regulation will provide additional protection for human health and the environment; and(9) other relevant factors.(i) Except as provided in Texas Health and Safety Code, §361.090, facilities managing recyclable materials that are required to obtain a permit under this section may also be permitted to manage nonhazardous recyclable materials at the same facility if the executive director determines that such regulation is necessary to protect human health and the environment. In making this determination, the executive director shall consider the following criteria:(1) whether managing nonhazardous recyclable materials will create an additional risk of release of the hazardous recyclable materials into the environment;(2) whether hazardous and nonhazardous wastes that are incompatible are stored and/or processed in the same or connected units;(3) whether the management of recyclable materials and nonhazardous recyclable materials is segregated within the facility;(4) the waste's toxicity, corrosivity, flammability, ability to sensitize or irritate, or propensity for decomposition and creation of sudden pressure;(5) the potential for the objectionable constituent to migrate from the waste into the environment if improperly managed;(6) the persistence of any objectionable constituent or any objectionable degradation product in the waste;(7) the potential for the objectionable constituent to degrade into harmful constituents;(8) the degree to which the objectionable constituent bioaccumulates in ecosystems;(9) the plausible types of improper management to which the waste could be subjected;(10) the nature and severity of potential damage to the public health and environment;(11) whether subjecting the waste to additional regulation will provide additional protection for human health and the environment; and(12) other relevant factors.(j) Closure cost estimates.(1) Except as otherwise approved by the executive director, an owner or operator of a recycling facility that stores combustible nonhazardous materials outdoors, or that poses a significant risk to public health and safety as determined by the executive director, shall provide a written cost estimate, in current dollars, showing the cost of hiring a third party to close the facility by disposition of all processed and unprocessed materials in accordance with all applicable regulations. The closure cost estimate for financial assurance must be submitted with any new notification in accordance with §335.6 within 60 days of the effective date of this rule for existing facilities or as otherwise requested by the executive director.(2) The estimate must:(A) equal the costs of closure of the facility, including disposition of the maximum inventories of all processed and unprocessed combustible materials stored outdoors on site during the life of the facility, in accordance with all applicable regulations;(B) be based on the costs of hiring a third party that is not affiliated (as defined in §328.2 of this title (relating to Definitions)) with the owner or operator; and(C) be based on a per cubic yard and/or short ton measure for collection and disposition costs.(k) Financial assurance. An owner or operator of a recycling facility that stores nonhazardous combustible recyclable materials outdoors, or that poses a significant risk to public health and safety as determined by the executive director, shall establish and maintain financial assurance for closure of the facility in accordance with Chapter 37, Subchapter J of this title (relating to Financial Assurance for Recycling Facilities).(l) Closure requirements.(1) Closure must include collecting processed and unprocessed materials, and transporting the materials to an authorized facility for disposition unless otherwise approved or directed in writing by the executive director.(2) Closure of the facility must be completed within 180 days following the most recent acceptance of processed or unprocessed materials unless otherwise approved or directed in writing by the executive director.(m) Used oil that is recycled and is also a hazardous waste solely because it exhibits a hazardous characteristic is not subject to the requirements of Subchapters A - I or O of this chapter, but is regulated under Chapter 324 of this title (relating to Used Oil Standards). Used oil that is recycled includes any used oil which is reused, following its original use, for any purpose (including the purpose for which the oil was originally used). Such term includes, but is not limited to, oil which is re-refined, reclaimed, burned for energy recovery, or reprocessed.(n) Owners or operators of facilities subject to hazardous waste permitting requirements with hazardous waste management units that recycle hazardous wastes are subject to the requirements of 40 CFR Part 264 or Part 265, Subparts AA and BB, as adopted by reference under §335.152(a)(17) and (18) and §335.112(a)(19) and (20) of this title (relating to Standards).(o) Hazardous waste that is exported or imported for purpose of recovery is subject to the requirements of 40 CFR Part 262, Subpart H, as adopted under §335.58 of this title.(p) Other portions of this chapter that relate to solid wastes that are recycled include §335.1 of this title (relating to Definitions), under the definition of "Solid waste," §335.6 of this title, §335.17 of this title (relating to Special Definitions for Recyclable Materials and Nonhazardous Recyclable Materials), §335.18 of this title (relating to Variances from Classification as a Solid Waste), §335.19 of this title (relating to Standards and Criteria for Variances from Classification as a Solid Waste), §335.26 of this title (relating to Notification Requirement for Hazardous Secondary Materials, §335.27 of this title (relating to Legitimate Recycling of Hazardous Secondary Materials), Subchapter H of this chapter, and Subchapter V of this chapter (relating to Standards for Reclamation of Hazardous Secondary Materials).</content><note type="source"><p>Source Note: The provisions of this §335.24 adopted to be effective September 1, 1986, 11 TexReg 3693; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective July 27, 1988, 13 TexReg 3515; amended to be effective March 1, 1996, 21 TexReg 1425; amended to be effective November 20, 1996, 21 TexReg 10983; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective April 4, 1999, 24 TexReg 2352; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective November 4,2004, 29 TexReg 10134; amended to be effective February 21, 2013, 38 TexReg 978; amended to be effective June 11, 2020, 45 TexReg 3780; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.25"><num value="335.25">§335.25</num><heading>Handling, Storing, Processing, Transporting, and Disposing of Poultry Carcasses</heading><content>(a) Acceptable methods for disposal of poultry carcasses include the following storage, processing, and disposal methods:(1) placement in a landfill permitted by the commission to receive municipal or industrial solid waste;(2) composting, as defined in §332.2 of this title (relating to Definitions), and as further described in §332.23 of this title (relating to Operational Requirements);(3) cremation or incineration;(4) extrusion;(5) rendering; and(6) any other method the commission determines to be appropriate.(b) Prior to disposition by any method listed in subsection (a) of this section, poultry facilities may:(1) store poultry carcasses on site for no more than 72 hours provided that storage is in a varmint-proof receptacle to prevent odor, leakage, or spillage, but(2) shall freeze, or refrigerate at a temperature of 40 degrees Fahrenheit or less, any poultry carcasses which require on-site storage for more than 72 hours.(c) Poultry carcasses may not be disposed of by burial on-site except in the event of a major die-off that exceeds the capacity of a poultry facility to store and process poultry carcasses by the normal means used by the facility. A mortality rate of 0.3% or more per day of the facility's total poultry inventory shall be deemed a major die-off for the purposes of this section. This subsection supersedes any provisions of a permit or other authorization issued by the commission or its predecessor agencies which may have authorized on-site burial of poultry carcasses. This section does not authorize violation of any applicable regulations or laws.(d) Transportation of poultry carcasses to an off-site location for final disposition shall be in accordance with applicable local, state or federal regulations or laws.</content><note type="source"><p>Source Note: The provisions of this §335.25 adopted to be effective September 5, 1999, 24 TexReg 6790; amended to be effective July 31, 2008, 33 TexReg 5944.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.26"><num value="335.26">§335.26</num><heading>Notification Requirement for Hazardous Secondary Materials</heading><content>Persons who generate, process, store or recycle hazardous secondary materials must comply with the requirements of 40 Code of Federal Regulations (CFR) §260.42 (Notification requirements for hazardous secondary materials) as adopted and amended through May 30, 2018 (83 FR 24664). For the purposes of this section and 40 CFR §260.42, the term "Regional Administrator" is changed to the term "executive director" of the Texas Commission on Environmental Quality.</content><note type="source"><p>Source Note: The provisions of this §335.26 adopted to be effective June 16, 2016, 41 TexReg 4259; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.27"><num value="335.27">§335.27</num><heading>Legitimate Recycling of Hazardous Secondary Materials</heading><content>Persons who generate, process, store or recycle hazardous secondary materials must comply with the requirements of 40 Code of Federal Regulations (CFR) §260.43 (Legitimate recycling of hazardous secondary materials) as adopted and amended through May 30, 2018 (83 FR 24664). For the purposes of this section and 40 CFR §260.43, the term, "Regional Administrator" is changed to the term "executive director" of the Texas Commission on Environmental Quality.</content><note type="source"><p>Source Note: The provisions of this §335.27 adopted to be effective June 16, 2016, 41 TexReg 4259; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.28"><num value="335.28">§335.28</num><heading>Adoption of Memoranda of Understanding by Reference</heading><content>(a) The memorandum of understanding (effective July 14, 1987) between the attorney general of Texas and the Texas Water Commission, which concerns public participation in the state hazardous waste enforcement process, is adopted by reference.(b) The memorandum of understanding between the Texas Department of Health and the Texas Natural Resource Conservation Commission, which concerns radiation control functions and mutual cooperation, is adopted by reference under §7.118 of this title (relating to Memorandum of Understanding between the Texas Department of Health and the Texas Natural Resource Conservation Commission Regarding Radiation Control Functions.(c) Copies of these documents are available upon request from the Texas Natural Resource Conservation Commission, Office of the Chief Clerk, MC 105, P.O. Box 13087, Austin, Texas 78711-3087, (512) 239-3300.</content><note type="source"><p>Source Note: The provisions of this §335.28 adopted to be effective December 1, 1987, 12 TexReg 4193; amended to be effective May 31, 1998, 23 TexReg 5439; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.29"><num value="335.29">§335.29</num><heading>Adoption of Appendices by Reference</heading><content>The following appendices contained in 40 Code of Federal Regulations Part 261 are adopted by reference as amended and adopted through April 1, 1987, and as further amended as indicated in each paragraph:(1) Appendix I--Representative Sampling Methods (as amended through August 1, 2005 (70 Federal Register (FR) 44150));(2) Appendix VII--Basis for Listing Hazardous Waste (as amended through February 24, 2005 (70 FR 9138));(3) Appendix VIII--Hazardous Constituents (as amended through December 17, 2010 (75 FR 78918)); and(4) Appendix IX--Wastes Excluded Under §260.20 and §260.22 (as amended through July 14, 2006 (71 FR 40254)).</content><note type="source"><p>Source Note: The provisions of this §335.29 adopted to be effective July 14, 1987, 12 TexReg 2106; amended to be effective March 18, 1991, 16 TexReg 1369; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective February 26, 1996, 21 TexReg 1142; amended to be effective November 20, 1996, 21 TexReg 10983; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective April 4, 1999, 24 TexReg 2352; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective July 18, 2002, 27 TexReg 6315; amended to be effective August 16, 2007, 32 TexReg 5010; amended to be effective October 29, 2009, 34 TexReg 7321; amended to be effective January 8, 2015, 40 TexReg 77.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.30"><num value="335.30">§335.30</num><heading>Appendix I</heading><content>The following appendix will be used for the purposes of Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste in General).Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §335.30 adopted to be effective May 28, 1986, 11 TexReg 2335; amended to be effective November 20, 1996, 21 TexReg 10983.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.31"><num value="335.31">§335.31</num><heading>Incorporation of References</heading><content>When used in this chapter, the references contained in 40 Code of Federal Regulations (CFR) §260.11 are incorporated by reference as amended and adopted in the CFR through November 28, 2016 (81 FR 85732).</content><note type="source"><p>Source Note: The provisions of this §335.31 adopted to be effective November 20, 1996, 21 TexReg 10983; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective August 16, 2007, 32 TexReg 5010; amended to be effective October 29, 2009, 34 TexReg 7321; amended to be effective June 11, 2020, 45 TexReg 3780; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scA/s335.32"><num value="335.32">§335.32</num><heading>Standards and Criteria for Non-Waste Determinations</heading><content>Persons who generate, process, store or recycle hazardous secondary materials must comply with the requirements of 40 Code of Federal Regulations §260.34 (Standards and criteria for non-waste determinations) as adopted and amended through January 13, 2015 (80 FR 1694).</content><note type="source"><p>Source Note: The provisions of this §335.32 adopted to be effective June 16, 2016, 41 TexReg 4259.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scB"><num value="B">SUBCHAPTER B</num><heading>HAZARDOUS WASTE MANAGEMENT GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scB/s335.41"><num value="335.41">§335.41</num><heading>Purpose, Scope and Applicability</heading><content>(a) The purpose of this chapter is to implement a state hazardous waste program which controls from point of generation to ultimate disposal those wastes which have been identified by the administrator of the United States Environmental Protection Agency (EPA) in 40 Code of Federal Regulations (CFR) Part 261.(b) Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities); Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste, Treatment, Storage, or Disposal Facilities); §335.12 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities); and §335.15 of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities) do not apply to an owner or operator of a totally enclosed treatment facility, as defined in §335.1 of this title (relating to Definitions).(c) Except as provided in §335.47 of this title (relating to Special Requirements for Persons Eligible for a Federal Permit by Rule), Subchapters E and F of this chapter do not apply to the owner or operator of a publicly owned treatment works (POTW) that processes, stores, or disposes of hazardous waste.(d) Subchapters E and F of this chapter do not apply to:(1) the owner or operator of an elementary neutralization unit provided that if the owner or operator is diluting hazardous ignitable (D001) wastes (other than the D001 High TOC Subcategory as defined in 40 CFR §268.40, Table Treatment Standards for Hazardous Wastes), or reactive (D003) waste, to remove the characteristic before land disposal, the owner/operator must comply with the requirements in 40 CFR §264.17(b);(2) persons engaged in processing or containment activities during immediate response to a discharge of a hazardous waste; an imminent and substantial threat of discharge of hazardous waste; a discharge of a material which, when discharged, becomes a hazardous waste; or an immediate threat to human health, public safety, property, or the environment, from the known or suspected presence of military munitions, other explosive material, or an explosive device, as determined by an explosive or munitions emergency response specialist as defined in §335.1 of this title, except that:(A) an owner or operator of a facility otherwise regulated under Subchapter E of this chapter must comply with all applicable requirements of §335.112(a)(2) and (3) of this title (relating to Standards) and §335.113 of this title (relating to Reporting of Emergency Situations by Emergency Coordinator);(B) an owner or operator of a facility otherwise regulated under Subchapter F of this chapter must comply with all applicable requirements of §335.152(a)(2) and (3) of this title (relating to Standards) and §335.153 of this title (relating to Reporting of Emergency Situations by Emergency Coordinator);(C) any person who continues or initiates hazardous waste processing or containment activities after the immediate response is over is subject to all applicable requirements of Subchapters E and F of this chapter and Chapter 305 of this title (relating to Consolidated Permits); and(D) in the case of an explosives or munitions emergency response, if a federal, state, tribal, or local official acting within the scope of his or her official responsibilities, or an explosives or emergency response specialist, determines that immediate removal of the material is necessary to protect human health or the environment, that official or specialist may authorize the removal of the material or waste by transporters who do not have EPA identification numbers and without the preparation of a manifest. In the case of emergencies involving military munitions, the responding military emergency response specialist's organizational unit must retain records for three years identifying the dates of the response, the responsible persons responding, the type and description of material addressed, and its disposition;(3) persons adding absorbent material to waste in a container, as defined in §335.1 of this title and persons adding waste to absorbent material in a container, provided that these actions occur at the time that waste is first placed in the container, and that in the case of permitted facilities, 40 CFR §§264.17(b), 264.171, and 264.172 are complied with, and for all other facilities, 40 CFR §§265.17(b), 265.171, and 265.172 are complied with;(4) a farmer disposing of waste pesticides from the farmer's own use in compliance with 40 CFR §262.70 as adopted under §335.57 of this title (relating to Farmers);(5) the owner or operator of a wastewater treatment unit, as defined in §335.1 of this title, provided that the wastewater is discharged in accordance with a Texas Pollutant Discharge Elimination System authorization issued under Texas Water Code, Chapter 26, and if the owner or operator is diluting hazardous ignitable (D001) wastes (other than the D001 High TOC Subcategory as defined in 40 CFR §268.40) or reactive (D003) waste to remove the characteristic before land disposal, must comply with the requirements in 40 CFR §264.17(b);(6) the owner or operator of a wastewater treatment unit, as defined in §335.1 of this title, located at a noncommercial solid waste management facility that discharges to a publicly owned treatment works, provided that if the owner or operator is diluting hazardous ignitable (D001) wastes (other than the D001 High TOC Subcategory as defined in 40 CFR §268.40) or reactive (D003) waste to remove the characteristic before land disposal, must comply with the requirements in 40 CFR §264.17(b);(7) the owner or operator of a wastewater treatment unit, as defined in §335.1 of this title, located at a municipal solid waste facility or commercial industrial solid waste landfill disposal facility that discharges to a publicly owned treatment works liquid wastes that are incidental to the handling, processing, storage, or disposal of solid wastes, provided that if the owner or operator is diluting hazardous ignitable (D001) wastes (other than the D001 High TOC Subcategory as defined in 40 CFR §268.40) or reactive (D003) waste to remove the characteristic before land disposal, must comply with the requirements in 40 CFR §264.17(b);(8) the owner or operator of a wastewater treatment unit, as defined in §335.1 of this title, located at a commercial industrial solid waste facility that receives waste for discharge to a publicly owned treatment works, provided that if the owner or operator is diluting hazardous ignitable (D001) wastes (other than the D001 High TOC Subcategory as defined in 40 CFR §268.40) or reactive (D003) waste to remove the characteristic before land disposal, must comply with the requirements in 40 CFR §264.17(b), but is subject to the permitting requirements of §335.2(n) of this title (relating to Permit Required);(9) the owner or operator of a facility permitted, licensed, or registered by a state to manage municipal or industrial solid waste, if the only hazardous waste the facility treats, stores, or disposes of is excluded from regulation under this chapter by 40 CFR §262.14 as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste);(10) a generator accumulating waste on-site in compliance with applicable conditions for exemption in 40 CFR §§262.14, 262.15, 262.16, or 262.17 as adopted under §335.53 of this title except to the extent the requirements of Subchapter E or F of this chapter are included in 40 CFR §§262.14 - 262.17; or(11) a reverse distributor accumulating potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals, in compliance with Subchapter W of this chapter (relating to Management Standards for Hazardous Waste Pharmaceuticals).(e) Subchapter E of this chapter does not apply to:(1) a very small quantity generator that meets the conditions for exemption for a very small quantity generator in 40 CFR §262.14 as adopted under §335.53 of this title that stores, processes, or disposes of hazardous waste on-site; or(2) A generator accumulating waste on-site in compliance with applicable conditions for exemption in and 40 CFR Part 262, Subparts K and L as adopted under §335.59 and §335.60 of this title (relating to Alternative Requirements for Hazardous Waste Determination and Accumulation of Unwanted Material for Laboratories Owned by Eligible Academic Entities; and Alternative Standards for Episodic Generation), except to the extent the requirements of Subchapter E of this chapter are included in 40 CFR Part 262, Subparts K and L.(f) The following requirements apply to residues of hazardous waste in containers.(1) Subchapters B - F and O of this chapter (relating to Hazardous Waste Management General Provisions; Standards Applicable to Generators of Hazardous Waste; Standards Applicable to Transporters of Hazardous Waste; Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities; Permitting Standards for Owners and Operators of Hazardous Waste, Treatment, Storage, or Disposal Facilities; and Land Disposal Restrictions) do not apply to any hazardous waste remaining in either an empty container or an inner liner removed from an empty container, as defined in paragraph (2) of this subsection. This exemption does not apply to any hazardous waste in either a container that is not empty or an inner liner removed from a container that is not empty.(2) For purposes of determining whether a container is empty under this subsection, the following provisions apply:(A) a container or an inner liner removed from a container that has held any hazardous waste, except a waste that is a compressed gas or that is identified as an acute hazardous waste listed in 40 CFR §§261.31, 261.32, or 261.33(e) is empty if:(i) all wastes have been removed that can be using the practices commonly employed to remove materials from that type of container, e.g., pouring, pumping, and aspirating; and(ii) no more than 2.5 centimeters (one inch) of residue remains on the bottom of the container or inner liner; or(iii) no more than 3.0% by weight of the total capacity of the container remains in the container or inner liner if the container is less than or equal to 119 gallons in size, or no more than 0.3% by weight of the total capacity of the container remains in the container or inner liner if the container is greater than 119 gallons in size;(B) a container that has held a hazardous waste that is a compressed gas is empty when the pressure in the container approaches atmosphere;(C) a container or an inner liner removed from a container that has held an acute hazardous waste listed in 40 CFR §§261.31, 261.32, or 261.33(e) is empty if:(i) the container or inner liner has been triple rinsed using a solvent capable of removing the commercial chemical product or manufacturing chemical intermediate;(ii) the container or inner liner has been cleaned by another method that has been shown in the scientific literature, or by tests conducted by the generator, to achieve equivalent removal; or(iii) in the case of a container, the inner liner that prevented contact of the commercial chemical product or manufacturing chemical intermediate with the container has been removed.(D) A container of hazardous waste pharmaceuticals is subject to §335.765 of this title (relating to Residues of Hazardous Waste Pharmaceuticals in Empty Containers) instead of this section for determining when it is considered empty, except as provided by §335.765(c) and (d) of this title.(g) Subchapters B - F and O of this chapter do not apply to hazardous waste that is managed as a recyclable material described in §335.24(b) and (c) of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials), except to the extent that requirements of these subchapters are referred to in Subchapter H of this chapter and Chapter 324 of this title (relating to Used Oil Standards).(h) Subchapters E and F of this chapter apply to owners or operators of all facilities that treat, store, or dispose of hazardous waste referred to in Subchapter O of this chapter.(i) Except as provided in §335.47 of this title, Subchapter F of this chapter does not apply to persons disposing of hazardous waste by means of underground injection. However, Subchapter F of this chapter does apply to the aboveground storage or processing of hazardous waste before it is injected underground.(j) Except as specified in Subchapter H, Division 5 of this chapter (relating to Universal Waste Rule), Subchapters B - F and O of this chapter and Chapter 305 of this title do not apply to universal wastes, universal waste handlers, or universal waste transporters as defined in §335.261 of this title (relating to Universal Waste Rule). Universal wastes are not fully regulated hazardous wastes, but are subject to regulation under Subchapter H, Division 5 of this chapter.</content><note type="source"><p>Source Note: The provisions of this §335.41 adopted to be effective May 28, 1986, 11 TexReg 2344; amended to be effective September 1, 1986, 11 TexReg 3695; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective July 27, 1988, 13 TexReg 3515; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective March 1, 1996, 21 TexReg 1425; amended to be effective March 6, 1996, 21 TexReg 2400; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective April 30, 2000, 25 TexReg 3547; amended to be effective April12,2001,26TexReg 2741; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective February 22, 2006, 31 TexReg 1040; amended to be effective August 31, 2006, 31 TexReg 6755; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scB/s335.43"><num value="335.43">§335.43</num><heading>Permit Required</heading><content>(a) Except as provided in §335.2 of this title (relating to Permit Required), no person shall store, process, or dispose of hazardous waste without first having obtained a permit from the Texas Commission on Environmental Quality (commission).(b) Upon receipt of federal Hazardous and Solid Waste Act (HSWA) authorization for the commission's Hazardous Waste Program, the commission shall be authorized to enforce the HSWA provisions that the United States Environmental Protection Agency imposed in hazardous waste permits that were issued before the HSWA authorization was granted.</content><note type="source"><p>Source Note: The provisions of this §335.43 adopted to be effective September 1, 1986, 11 TexReg 3695; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective August 14, 1990, 15 TexReg 4397; amended to be effective November 7, 1991, 16 TexReg 6065; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective June 11, 2020, 4 TexReg 3780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scB/s335.44"><num value="335.44">§335.44</num><heading>Application for Existing On-Site Facilities</heading><content>(a) In order to satisfy the application deadline specified in §335.2(c) of this title (relating to Permit Required), an application must be submitted prior to that date which contains information defining the following:(1) owner(s) and operator(s) of the facility;(2) description of the site;(3) description of the facility and all facility components;(4) identification of wastes generated, stored, processed, or disposed, together with quantities and sources; and(5) methods and types of operations used in the storage, processing, or disposal of wastes.(b) In addition to the information required in subsection (a) of this section, a complete application, required prior to action on an application by the commission, must include the following:(1) engineering plans and specifications and other documentation necessary to demonstrate that all components of the facility design, construction, and operation conform to standards established by the commission; and(2) information describing actions necessary to bring existing facilities into compliance with commission standards and a schedule for completion of such actions.(c) An application form can be obtained from the executive director for each geographical location for which the storage, processing, or disposal of hazardous waste is proposed.(d) The application shall be signed by the applicant or by a duly authorized agent, employee, officer, or representative of the applicant and shall be verified before a notary public.</content><note type="source"><p>Source Note: The provisions of this §335.44 adopted to be effective May 28, 1986, 11 TexReg 2344; amended to be effective September 1, 1986, 11 TexReg 3695; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scB/s335.45"><num value="335.45">§335.45</num><heading>Effect on Existing Facilities</heading><content>(a) Effect on permitted off-site facilities. Subchapters B - E of this chapter (relating to Hazardous Waste Management General Provisions; Standards Applicable to Generators of Hazardous Waste; Standards Applicable to Transporters of Hazardous Waste; and Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities), provide minimum requirements applicable to all persons generating, transporting, storing, processing, and disposing of hazardous waste. All persons holding permits or any other authorizations from the commission or its predecessor agencies, which relate to hazardous waste, shall meet the requirements of Subchapter E of this chapter until final administrative disposition of their permit application pursuant to standards prescribed by Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities) is made. However, where the permit or authorization specifies additional or more stringent requirements, the provisions of the permit or authorization shall be complied with.(b) Effect on off-site facilities without a permit to re-use, recycle, or reclaim hazardous waste, or to burn hazardous waste in boilers or industrial furnaces. Any person who has commenced the off-site storage, processing, or disposal of hazardous wastes, or activities that are listed, identified or described by the administrator of the United States Environmental Protection Agency in 40 Code of Federal Regulations Part 261, on or before the effective date of statutory or regulatory amendments under the Resource Conservation and Recovery Act of 1976, as amended, 42 United States Code §§6901 et seq., concerning the re-use, recycling, or reclamation of hazardous waste, or relating to the burning of hazardous waste in boilers or industrial furnaces, that render such wastes or activities subject to the requirements to have a hazardous waste permit, shall file an application with the commission on or before the effective date of such amendments, which includes the applicable information required by §335.44 of this title (relating to Application for Existing On-site Facilities). Any person who has commenced off-site storage, processing, or disposal of hazardous waste on or before the effective date of such amendments, who has filed a hazardous waste permit application with the commission on or before the effective date of such amendments in accordance with the rules and regulations of the commission, and who complies with requirements in this chapter applicable to such activities, may continue the off-site storage, processing, or disposal of the newly listed or identified wastes or waste activities until such time as the Texas Natural Resource Conservation Commission approves or denies the application. In cases where the aforementioned federal statutory or regulatory amendments become effective prior to the effective date of state statutory or regulatory amendments under Texas Health and Safety Code, Chapter 361, submittal to the executive director of a copy of the properly filed EPA permit application within 30 days of the effective date of the applicable state statutory or regulatory requirements shall constitute compliance with this subsection with regard to application filing requirements. Facilities that have received a permit for the re-use, recycling, or reclamation of hazardous waste in accordance with Subchapter F of this chapter are not required to comply with this subsection and may operate pursuant to their existing permit. Such permits, however, are subject to amendment under §305.62 of this title (relating to Amendment) or to modification under §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee) to reflect new regulatory requirements.</content><note type="source"><p>Source Note: The provisions of this §335.45 adopted to be effective September 1, 1986, 11 TexReg 3695; amended to be effective July 29, 1992, 17 TexReg 5017; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scB/s335.46"><num value="335.46">§335.46</num><heading>Sharing of Information</heading><content>(a) Any information obtained or used by the commission in the administration of a hazardous waste program authorized under the Resource Conservation and Recovery Act of 1976, §3006 and 40 Code of Federal Regulations (CFR) Part 271 shall be available to the Environmental Protection Agency upon request without restriction. If the information has been submitted to the commission under a claim of confidentiality, the commission shall submit that claim to the Environmental Protection Agency when providing information under this section. Any information obtained from the commission and subject to a claim of confidentiality will be treated by the Environmental Protection Agency in accordance with 40 CFR Part 2. If the Environmental Protection Agency obtains information that is not claimed to be confidential, the Environmental Protection Agency may make that information available to the public without further notice.(b) The commission adopts by reference 40 CFR §260.2(c) as amended through February 7, 2014 in the Federal Register (79 FR 7518).(c) The commission adopts by reference 40 CFR §260.2(d) as amended through December 26, 2017 in the Federal Register (82 FR 60894).</content><note type="source"><p>Source Note: The provisions of this §335.46 adopted to be effective May 28, 1986, 11 TexReg 2344; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scB/s335.47"><num value="335.47">§335.47</num><heading>Special Requirements for Persons Eligible for a Federal Permit by Rule</heading><content>(a) The following persons are eligible for a permit by rule under 40 Code of Federal Regulations (CFR) §270.60:(1) the owner or operator of a barge or other vessel which accepts hazardous waste for ocean disposal;(2) the owner or operator of a publicly owned treatment works (POTW) which accepts hazardous waste for treatment; and(3) the owner or operator of an injection well used to dispose of hazardous waste.(b) To be eligible for a permit by rule, such person shall comply with the requirements of 40 CFR §270.60 and the following rules:(1) 40 CFR §264.11 (EPA identification number);(2) 40 CFR §264.73(a) and (b)(1) (operating record);(3) 40 CFR §264.75 (biennial report);(4) §335.12 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities); and(5) §335.15 of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities).(c) In addition to the requirements stated in subsection (b) of this section, the owner or operator of an injection well used to dispose of hazardous waste shall:(1) comply with the applicable personnel training requirements of 40 CFR §264.16;(2) when abandonment is completed, submit to the executive director certification by the owner or operator and certification by a Texas licensed professional engineer that the facility has been closed in accordance with the specifications in §331.46 of this title (relating to Closure Standards); and(3) for underground injection control permits issued after November 8, 1984, comply with §335.167 of this title (relating to Corrective Action for Solid Waste Management Units). Where the underground injection well is the only unit at a facility which requires a permit, comply with 40 CFR §270.14(d) (concerning information requirements for solid waste management units). Persons who dispose of hazardous waste by means of underground injection must obtain a permit under the Texas Water Code, Chapter 27.(d) In addition to the requirements stated in subsection (b) of this section, the owner or operator of a POTW which accepts hazardous waste for treatment shall:(1) meet all federal, state, and local pretreatment requirements which would be applicable to the waste if it were being discharged into the POTW through a sewer, pipe, or similar conveyance; and(2) for National Pollutant Discharge Elimination System permits issued after November 8, 1984, comply with §335.167 of this title.</content><note type="source"><p>Source Note: The provisions of §335.47 adopted to be effective May 28, 1986, 11 TexReg 2344; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scC"><num value="C">SUBCHAPTER C</num><heading>STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scC/s335.51"><num value="335.51">§335.51</num><heading>Definitions</heading><content>The following terms have the following meanings when used in this subchapter.(1) Condition for exemption--Any requirement in 40 Code of Federal Regulations (CFR) §262.14 (Conditions for exemption for a very small quantity generator), §262.15 (Satellite accumulation area regulations for small and large quantity generators), §262.16 (Conditions for exemption for a small quantity generator that accumulates hazardous waste), §262.17 (Conditions for exemption for a large quantity generator that accumulates hazardous waste), §262.70 (Farmers), or 40 CFR Part 262, Subpart K (Alternative Requirements for Hazardous Waste Determination and Accumulation of Unwanted Material for Laboratories Owned by Eligible Academic Entities), or 40 CFR Part 262, Subpart L (Alternative Standards for Episodic Generation), as adopted under this subchapter, that states an event, action, or standard that must occur or be met in order to obtain an exemption from any applicable requirement in Chapter 37 of this title (relating to Financial Assurance), Chapter 39 of this title (relating to Public Notice), and Chapter 305 of this title (relating to Consolidated Permits), Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), or from any requirement for notification under Resource Conservation and Recovery Act, §3010.(2) Independent requirement--A requirement of 40 Code of Federal Regulations (CFR) Part 262 (Standards Applicable to Generators of Hazardous Waste), as adopted under this chapter, that states an event, action, or standard that must occur or be met; and that applies without relation to, or irrespective of, the purpose of obtaining a conditional exemption from storage facility permit, interim status, and operating requirements under 40 CFR §§262.14 - 262.17, or 40 CFR Part 262, Subpart K (Alternative Requirements for Hazardous Waste Determination and Accumulation of Unwanted Material for Laboratories Owned by Eligible Academic Entities), or 40 CFR Part 262, Subpart L (Alternative Standards for Episodic Generation), as adopted in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §335.51 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scC/s335.52"><num value="335.52">§335.52</num><heading>Purpose, Scope, and Applicability</heading><content>(a) The regulations in this subchapter establish standards for generators of hazardous waste. These standards are in addition to any applicable provisions contained in Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste in General).(1) A person who generates a hazardous waste as defined by 40 Code of Federal Regulations (CFR) §261.3, as adopted under §335.504 of this title (relating to Hazardous Waste Determination), is subject to all applicable independent requirements listed in this section.(A) Independent requirements of a very small quantity generator:(i) §335.504 of this title; and(ii) 40 CFR §262.13 (Generator category determination) as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste).(B) Independent requirements of a small quantity generator:(i) §335.504 of this title;(ii) 40 CFR §262.11(e) and (f) (Hazardous waste determination and recordkeeping), as adopted under §335.53 of this title;(iii) 40 CFR §262.13, as adopted under §335.53 of this title;(iv) 40 CFR §262.18 (EPA identification numbers and re-notification for small quantity generators and large quantity generators), as adopted under §335.53 of this title;(v) 40 CFR Part 262, Subpart B (Manifest Requirements Applicable to Small and Large Quantity Generators), as adopted under §335.54 of this title (relating to Hazardous Waste Manifest);(vi) 40 CFR Part 262, Subpart C (Pre-Transport Requirements Applicable to Small and Large Quantity Generators) as adopted under §335.55 of this title (relating to Pre-Transport Requirements Applicable to Large and Small Quantity Generators);(vii) 40 CFR §262.40 (Recordkeeping) as adopted under §335.56 of this title (relating to Recordkeeping and Reporting Applicable to Large and Small Quantity Generators);(viii) 40 CFR §262.44 (Recordkeeping for small quantity generators) as adopted under §335.56 of this title;(ix) §§335.6(b), (c) and (f), 335.9, 335.10(a) and 335.13 of this title (relating to Notification Requirements; Recordkeeping and Annual Reporting Procedures Applicable to Generators; Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste; and Recordkeeping and Reporting Procedures Applicable to Generators Shipping Hazardous Waste or Class 1 Waste); and(x) 40 CFR Part 262, Subpart H (Transboundary Movements of Hazardous Waste for Recovery or Disposal), as adopted under §335.58 of this title (relating to Transboundary Movements of Hazardous Waste for Recovery or Disposal).(C) Independent requirements of a large quantity generator:(i) §335.504 of this title;(ii) 40 CFR §262.11(e) and (f) as adopted under §335.53 of this title;(iii) 40 CFR §262.13 as adopted under §335.53 of this title;(iv) 40 CFR §262.18 as adopted under §335.53 of this title;(v) 40 CFR Part 262, Subpart B as adopted under §335.54 of this title;(vi) 40 CFR Part 262, Subpart C as adopted under §335.55 of this title;(vii) 40 CFR Part 262, Subpart D (Recordkeeping and Reporting Applicable to Small and Large Quantity Generators), as adopted under §335.56 of this title except 40 CFR §262.44;(viii) §§335.6(b), (c) and (f), 335.9, 335.10(a) and 335.13 of this title; and(ix) 40 CFR Part 262, Subpart H, as adopted under §335.58 of this title.(2) A generator that accumulates hazardous waste on-site is a person that stores hazardous waste and is subject to the applicable requirements of Chapter 37 of this title (relating to Financial Assurance), Chapter 39 of this title (relating to Public Notice), Chapter 305 of this title (relating to General Provisions), Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), and Section 3010 of Resource Conservation and Recovery Act (RCRA) unless it is one of the following:(A) a very small quantity generator that meets the conditions for exemption in 40 CFR §262.14 (Conditions for exemption for a very small quantity generator), as adopted under §335.53 of this title;(B) a small quantity generator that meets the conditions for exemption in 40 CFR §262.16 (Conditions for exemption for a small quantity generator that accumulates hazardous waste) and meets the requirements of 40 CFR §262.15 (Satellite accumulation area regulations for small and large quantity generators), as 40 CFR §262.15 and §262.16 are adopted under §335.53 of this title; and(C) a large quantity generator that meets the conditions for exemption in 40 CFR §262.17 (Conditions for exemption for a large quantity generator that accumulates hazardous waste) and meets the requirements of 40 CFR §262.15, as 40 CFR §262.15 and §262.17 are adopted under §335.53 of this title.(3) A generator shall not transport, offer its hazardous waste for transport, or otherwise cause its hazardous waste to be sent to a facility that is not a designated facility, as defined in §335.1 of this title (relating to Definitions), or not otherwise authorized to receive the generator's hazardous waste.(b) A generator must use 40 CFR §262.13 as adopted under §335.53 of this title to determine their generator category and which provisions of this subchapter are applicable to the generator based on the quantity of hazardous waste generated per calendar month.(c) Any person who exports or imports hazardous wastes must comply with 40 CFR §262.18 as adopted under §335.53 of this title and 40 CFR Part 262, Subpart H, as adopted under §335.58 of this title.(d) Any person who imports hazardous waste into the United States must comply with the standards applicable to generators established in 40 CFR Part 262.(e) A farmer who generates waste pesticides which are hazardous waste and who complies with all of the requirements of 40 CFR §262.70 (Farmers), as adopted under §335.57 of this title (relating to Farmers), is not required to comply with other standards in this subchapter or this chapter with respect to such pesticides.(f) This subsection describes the consequences of violating of an independent requirement and not complying with a condition for exemption.(1) A generator's violation of an independent requirement is subject to penalty and injunctive relief under Texas Health and Safety Code, Chapter 361, Texas Water Code, Chapter 7, and Section 3008 of RCRA.(2) A generator's noncompliance with a condition for exemption in this part is not subject to penalty or injunctive relief under Texas Health and Safety Code, Chapter 361, Texas Water Code, Chapter 7, or Section 3008 of RCRA as a violation of a Texas Administrative Code section adopting a 40 CFR Part 262 condition for exemption. Noncompliance by any generator with an applicable condition for exemption from storage permit and operations requirements means that the facility is a storage facility operating without an exemption from the permit, interim status, operations, and notification requirements in this chapter, and in Chapters 37, 39, and 305 of this title. Without an exemption, any violations of such storage requirements are subject to penalty and injunctive relief under Texas Health and Safety Code, Chapter 361, Texas Water Code, Chapter 7, and Section 3008 of RCRA.(g) An owner or operator who initiates a shipment of hazardous waste from a treatment, storage, or disposal facility must comply with the generator standards established in this subchapter.(h) Persons responding to an explosives or munitions emergency in accordance with §335.41(d)(2) of this title (relating to Purpose, Scope and Applicability) are not required to comply with the standards of this subchapter.(i) The laboratories owned by an eligible academic entity (for purposes of this paragraph, the terms "laboratory" and "eligible academic entity" shall have the meaning defined in 40 CFR §262.200, as adopted under §335.59 of this title (relating to Alternative Requirements for Hazardous Waste Determination and Accumulation of Unwanted Material for Laboratories Owned by Eligible Academic Entities) that elect to be subject to the requirements of 40 CFR Part 262, Subpart K, as adopted by reference under §335.59 of this title are not subject to:(1) the independent requirements of §335.504 of this title or 40 CFR §262.11 as adopted under §335.53 of this title;(2) the regulations in 40 CFR §262.15 as adopted under §335.53 of this title for large quantity generators and small quantity generators, except as provided in 40 CFR Part 262, Subpart K, as adopted under §335.59 of this title; or(3) the conditions of 40 CFR §262.14 as adopted under §335.53 of this title, except as provided in 40 CFR Part 262, Subpart K, as adopted by reference under §335.59 of this title.(j) A reverse distributor as defined in §335.751 of this title (relating to Definitions) is subject to Subchapter W of this chapter (relating to Management Standards for Hazardous Waste Pharmaceuticals) for the management of hazardous waste pharmaceuticals instead of this subchapter.(k) A healthcare facility, as defined in §335.751 of this title, must determine whether it is subject to Subchapter W of this chapter for the management of hazardous waste pharmaceuticals, based on the total hazardous waste it generates per calendar month (including both hazardous waste pharmaceuticals and non-pharmaceutical hazardous waste). A healthcare facility that generates more than 100 kilograms (kg) (220 pounds) of hazardous waste per calendar month, or more than 1 kg (2.2 pounds) of acute hazardous waste per calendar month, or more than 100 kg (220 pounds) per calendar month of any residue or contaminated soil, water, or other debris, resulting from the clean-up of a spill, into or on any land or water, of any acute hazardous wastes listed in 40 CFR §261.31 or §261.33(e) as adopted under §335.504 of this title (relating to Hazardous Waste Determination), is subject to Subchapter W of this chapter for the management of hazardous waste pharmaceuticals in lieu of this subchapter. A healthcare facility that is a very small quantity generator when counting all of its hazardous waste, including both its hazardous waste pharmaceuticals and its non-pharmaceutical hazardous waste, remains subject to 40 CFR §262.14 as adopted in §335.53 of this title, and is not subject to Subchapter W of this chapter, except for §335.761 and §335.765 of this title (relating to Prohibition of Sewering Hazardous Waste Pharmaceuticals; and Residues of Hazardous Waste Pharmaceuticals in Empty Containers), and the optional provisions of §335.759 of this title (relating to Healthcare Facilities That are Very Small Quantity Generators for Both Hazardous Waste Pharmaceuticals and Non-pharmaceutical Hazardous Waste).</content><note type="source"><p>Source Note: The provisions of this §335.52 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scC/s335.53"><num value="335.53">§335.53</num><heading>General Standards Applicable to Generators of Hazardous Waste</heading><content>(a) The commission adopts by reference the regulations contained in 40 Code of Federal Regulations (CFR) §262.11(e) - (g) (Hazardous waste determination and record keeping) as adopted and amended in the Federal Register through November 28, 2016 (81 FR 85732), subject to the changes in this subsection. (1) In 40 CFR §262.11(e), "parts 261, 264, 265, 266, 267, 268, and 273 of this chapter" is changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(2) In 40 CFR §262.11(f), "40 CFR 261.3" means as this section is adopted under §335.504 of this title (relating to Hazardous Waste Determination); "paragraphs (c) and (d) of this section" are changed to "§335.504(a)(2) and (3) of this title"; "paragraph (d)(1)" is changed to "§335.504(a)(3)(A) of this title"; and the term "Administrator" is changed to the term "executive director." (3) In 40 CFR §262.11(g), "subparts C and D of part 261 of this chapter" is changed to "40 CFR Part 261, Subparts C and D, as adopted by reference under §335.504 of this title"; and "§262.32" is changed to "40 CFR §262.32 as adopted by reference under §335.55 of this title (relating to Pre-Transport Requirements Applicable to Small and Large Quantity Generators)."(b) The commission adopts by reference the regulations contained in 40 CFR §262.13 (Generator category determination), including Table 1, as adopted in the Federal Register on November 28, 2016 (81 FR 85732), and amended in the Federal Register through February 22, 2019 (84 FR 5816) subject to the changes in this subsection.(1) In the introductory text to 40 CFR §262.13, "§260.10 of this chapter" is changed to "§335.1 of this title (relating to Definitions)."(2) In 40 CFR §262.13(c), "this part" is changed to "this chapter."(3) In 40 CFR §262.13(c)(1), "40 CFR 261.4(c) through (f), 261.6(a)(3), or 261.7(a)(1)" is changed to "§335.2(f) and (g) of this title (relating to Permit Required), §335.24(c)(1) - (4) of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials), and §335.41(f) of this title (relating to Purpose, Scope and Applicability)."(4) In 40 CFR §262.13(c)(2), "40 CFR 260.10" is changed to "§335.1 of this title."(5) In 40 CFR §262.13(c)(3), "40 CFR 261.6(c)(2)" is changed to "§335.24(g) of this title."(6) In 40 CFR §262.13(c)(4), "40 CFR 261.6(a)(4) and 40 CFR part 279" is changed to "§335.24(m) of this title and Chapter 324 of this title (relating to Used Oil Standards)."(7) In 40 CFR §262.13(c)(5), "40 CFR part 266 subpart G" is changed to "Subchapter H, Division 4 of this chapter (relating to Spent Lead-Acid Batteries Being Reclaimed)."(8) In 40 CFR §262.13(c)(6), "40 CFR 261.9 and 40 CFR part 273" is changed to "40 CFR §261.9 as adopted under §335.504(a)(1) of this title and Subchapter H, Division 5 of this chapter (relating to Universal Waste Rule)." (9) In 40 CFR §262.13(c)(7), "listed in 40 CFR part 261 subpart D or exhibiting one or more characteristics in 40 CFR part 261 subpart C" is changed to "listed in 40 CFR Part 261, Subpart D or exhibiting one or more characteristics in 40 CFR Part 261, Subpart C as adopted under §335.504 of this title"; "§262.213" is changed to "§335.59 of this title (relating to Alternative Requirements for Hazardous Waste Determination and Accumulation of Unwanted Material for Laboratories Owned by Eligible Academic Entities)"; and "§262.200" is changed to "40 CFR §262.200 as adopted under §335.59 of this title."(10) In 40 CFR §262.13(c)(8), "subpart L of this part" is changed to "§335.60 of this title (relating to Alternative Standards for Episodic Generation)."(11) In 40 CFR §262.13(c)(9), "§266.500" is changed to "§335.751 of this title (relating to Definitions); "40 CFR part 266 subpart P" is changed to "Subchapter W of this chapter (relating to Management Standards for Hazardous Waste Pharmaceuticals)"; and "§266.506" is changed to "§335.763 of this title (relating to Conditional Exemptions for Hazardous Waste Pharmaceuticals that are Controlled Substances and Household Waste Pharmaceuticals Collected in a Take-back Event or Program)." (12) In 40 CFR §262.13(e), "§262.10" is changed to "§335.52 of this title (relating to Purpose, Scope, and Applicability)"; and "§§262.14, 262.15, 262.16 or 262.17" is changed to "40 CFR §§262.14, 262.15, 262.16 or 262.17 as adopted under subsections (c) - (f) of this section." (13) In 40 CFR §262.13(f)(1)(i):(A) "§262.14" is changed to "40 CFR §262.14 as adopted in subsection (c) of this section"; (B) "§260.10 of this chapter" is changed to "§335.1 of this title"; and (C) "part 261 subpart C of this chapter" is changed to "40 CFR Part 261, Subpart C as adopted under §335.504 of this title." (14) In 40 CFR §262.13(f)(1)(ii), "40 CFR 260.10 of this chapter" is changed to "§335.1 of this title."(15) In 40 CFR §262.13(f)(1)(iii), "40 CFR part 279" is changed to "Chapter 324 of this title."(16) In 40 CFR §262.13(f)(2)(i):(A) "§§261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i)" are changed to "40 CFR §§261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i) as adopted under §335.504 of this title"; (B) "§268.3(a)" is changed to "40 CFR §268.3(a), as adopted under §335.431(c) of this title (relating to Purpose, Scope, and Applicability)";(C) "§268.40" is changed to "40 CFR §268.40 as adopted under §335.431(c) of this title"; and (D) "§262.11" is changed to "§335.504 of this title and 40 CFR §262.11(e) - (g) as adopted under subsection (a) of this section."(17) In 40 CFR §262.13(f)(2)(ii), "§260.10 of this chapter" is changed to "§335.1 of this title." (c) The commission adopts by reference the regulations contained in 40 CFR §262.14, as adopted in the Federal Register on November 28, 2016 (81 FR 85732), and amended in the Federal Register through February 22, 2019 (84 FR 5816) subject to the changes in this subsection. (1) In 40 CFR §262.14(a), "parts 124, 262 (except §§262.10 - 262.14) through 268 and 270 of this chapter" is changed to "40 CFR Part 262, except §§262.10 - 262.14, as adopted in this subchapter; §335.2 of this title (relating to Permit Required); Subchapters D - H and O of this chapter (relating to Standards Applicable to Transporters of Hazardous Waste; Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities; Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities; Location Standards for Hazardous Waste Storage, Processing, or Disposal; Standards for the Management of Specific Wastes and Specific Types of Facilities; and Land Disposal Restrictions); and Chapters 37, 39, and 305 of this title (relating to Financial Assurance; Public Notice; and Consolidated Permits)."(2) In 40 CFR §262.14(a)(1), "§260.10 of this chapter" is changed to "§335.1 of this title (relating to Definitions)."(3) In 40 CFR §262.14(a)(2), "§262.11(a) through (d)" is changed to "§335.504 of this title."(4) In 40 CFR §262.14(a)(3), "§§261.31 or 261.33(e) of this chapter" is changed to "40 CFR §261.31 or §261.33(e) as adopted under §335.504 of this title."(5) In 40 CFR §262.14(a)(3)(ii), "§262.17(a) through (g)" is changed to "40 CFR §262.17(a) - (g) as adopted under subsection (f) of this section."(6) In 40 CFR §262.14(a)(4)(iii), "§262.16(b)(2) through (f)" is changed to "40 CFR §262.16(b)(2) - (f) as adopted under subsection (e) of this section."(7) In 40 CFR §262.14(a)(5)(i), "part 270 of this chapter" is changed to "40 CFR Part 270 or Chapter 335 of this title";(8) In 40 CFR §262.14(a)(5)(ii), "parts 265 and 270 of this chapter" is changed to "40 CFR Parts 265 and 270 or Chapter 335 of this title;"(9) In 40 CFR §262.14 (a)(5)(vii), after "part 273 of this chapter" is changed to "40 CFR Part 273 or Chapter 335, Subchapter H, Division 5 of this title (relating to Universal Waste Rule)."(10) In 40 CFR §262.14(a)(5)(viii)(A), "§260.10 of this chapter" is changed to "§3.2 of this title (relating to Definitions)."(11) In 40 CFR §262.14(a)(5)(ix), "§266.500" is changed to "§335.751 of this title (relating to Definitions)." (12) In 40 CFR §262.14(a)(5)(x), "§266.500" is changed to "§335.751 of this title"; and "§§266.502(l) and 266.503(b)" is changed to "§335.755(l) and §335.757(b) of this title (relating to Standards for Healthcare Facilities Managing Non-Creditable Hazardous Waste Pharmaceuticals; and Standards for Healthcare Facilities Managing Potentially Creditable Hazardous Waste Pharmaceuticals)." (13) In 40 CFR §262.14(a)(5)(xi), "§261.4(j) of this chapter" is changed to "§335.281 of this title (relating to Airbag Waste)." (14) In 40 CFR §262.14(c), "subpart L of this part" is changed to "§335.60 of this title (relating to Alternative Standards for Episodic Generation))"; and "§§262.15, 262.16, and 262.17" is changed to "40 CFR §§262.15, 262.16 and 262.17 as adopted under subsections (d) - (f) of this section."(d) The commission adopts by reference the regulations contained in 40 CFR §262.15, as adopted in the Federal Register on November 28, 2016 (81 FR 85732), subject to the changes in this subsection.(1) In 40 CFR §262.15(a):(A) "§261.31 or §261.33(e) of this chapter" is changed to "40 CFR §261.31 or §261.33(e) as adopted under §335.504 of this title"; (B) "parts 124, 264 through 267, and 270 of this chapter" is changed to "§335.2 of this title; Subchapters E - H of this chapter; Chapters 37, 39, and 305 of this title; and Chapter 281 of this title (relating to Consolidated Permits); and(C) "§262.16(b) or §262.17(a), except as required in §262.15(a)(7) and (8)" is changed to "40 CFR §262.16(b) or §262.17(a), except as required in §262.15(a)(7) and (8) as adopted under subsections (d) - (f) of this section."(2) In 40 CFR §262.15(a)(1), "§262.16(b) or §262.17(a)" is changed to "40 CFR §262.16(b) or §262.17(a)" as adopted under subsections (e) and (f) of this section.(3) In 40 CFR §262.15(a)(3)(i), "appendix V of part 265" is changed to "Appendix V of 40 CFR Part 265 as adopted under §335.112(a)(25)(D) of this title (relating to Standards)"; and "§265.17(b) of this chapter" is changed to "40 CFR §265.17(b) as adopted under §335.112(a)(1) of this title."(4) In 40 CFR §262.15(a)(3)(ii), "appendix V of part 265" is changed to "Appendix V of 40 CFR Part 265 as adopted under §335.112(a)(24)(D) of this title"; and "§265.17(b) of this chapter" is changed to "40 CFR §265.17(b) as adopted under §335.112(a)(1) of this title."(5) In 40 CFR §262.15(a)(6), "§261.31 or §261.33(e) of this chapter" is changed to "40 CFR §261.31 or §261.33(e) as adopted under §335.504 of this title."(6) In 40 CFR §262.15(a)(6)(i), "§262.16(b) or §262.17(a)" is changed to "40 CFR §262.16(b) or §262.17(a) as adopted under subsections (e) and (f) of this section."(7) In 40 CFR §262.15(a)(6)(ii)(A), "§262.16(b) or §262.17(a)" is changed to "40 CFR §262.16(b) or §262.17(a) as adopted under subsections (e) and (f) of this section."(8) In 40 CFR §262.15(a)(7), "§262.16(b)(8)" is changed to "40 CFR §262.16(b)(8) as adopted under subsection (e) of this section"; and "§262.16(b)(9)" is changed to "40 CFR §262.16(b)(9) as adopted under subsection (e) of this section."(9) In 40 CFR §262.15(a)(8), "subpart M of this part" is changed to "40 CFR Part 262, Subpart M as adopted under §335.61 of this title (relating to Preparedness, Prevention, and Emergency Procedures for Large Quantity Generators)."(e) The commission adopts by reference the regulations contained in 40 CFR §262.16, as adopted in the Federal Register on November 28, 2016 (81 FR 85732), subject to the changes in this subsection.(1) In the introductory text to 40 CFR §262.16, "parts 124, 264 through 267, and 270 of this chapter" is changed to "Chapters 37, 39, 281 and 305 of this title, §335.2 of this title and Subchapters E - H of this chapter."(2) In 40 CFR §262.16(a), "§260.10 of this chapter" is changed to "§335.1 of this title."(3) In 40 CFR §262.16(b), "paragraphs (d) and (e)" is changed to "paragraphs (c) and (d)";(4) In 40 CFR §262.16(b)(2)(v)(A), "appendix V of part 265" is changed to "Appendix V of 40 CFR Part 265 as adopted under §335.112(A)(25)(D) of this title"; and "§265.17(b) of this chapter" is changed to "40 CFR §265.17(b) as adopted under §335.112(a)(1) of this title."(5) In 40 CFR §262.16(b)(2)(v)(B), "appendix V of part 265" is changed to "Appendix V of 40 CFR Part 265 as adopted under §335.112(A)(25)(D) of this title"; and "§265.17(b) of this chapter" is changed to "40 CFR §265.17(b) as adopted under §335.112(a)(1) of this title."(6) In 40 CFR §262.16(b)(3)(ii)(A), "§265.17(b) of this chapter" is changed to "40 CFR §265.17(b) as adopted under §335.112(a)(1) of this title."(7) In 40 CFR §262.16(b)(3)(vi), "§261.3(c) or (d) of this chapter" is changed to "40 CFR §261.3(c) or (d) as adopted under 335.504"; and "parts 262, 263, 265 and 268 of this chapter" is changed to "Chapter 335 of this title and all applicable chapters of this title."(8) In 40 CFR §262.16(b)(3)(vii)(A)(1), "§261.21 or §261.23 of this chapter" is changed to "40 CFR §261.21 or §261.23 as adopted under §335.504 of this title"; and "§265.17(b) of this chapter" is changed to "40 CFR §265.17(b) as adopted under §335.112(a)(1) of this title."(9) In 40 CFR §262.16(b)(3)(vii)(B), "§260.11" is changed to "40 CFR §260.11, which is incorporated by reference under §335.31 of this title (relating to Incorporation of References)." (10) In 40 CFR §262.16(b)(3)(vii)(C)(1), "part 265 appendix V " is changed to "Appendix V of 40 CFR Part 265 as adopted under §335.112(A)(24)(D) of this title"; and "§265.17(b) of this chapter" is changed to "40 CFR §265.17(b) as adopted under §335.112(a)(1) of this title."(11) In 40 CFR §262.16(b)(3)(vii)(C)(2), "§265.17(b) of this chapter" is changed to "40 CFR §265.17(b) as adopted under §335.112(a)(1) of this title."(12) In 40 CFR §262.16(b)(4)(i), "Subpart W of 40 CFR part 265 (except §265.445 (c))" is changed to "40 CFR Part 265, Subpart W (except §265.445(c)) as adopted under §335.112(a)(18) of this title."(13) In 40 CFR §262.16(b)(4)(ii), "§262.15" is changed to "40 CFR §262.15 as adopted under subsection (d) of this section."(14) In 40 CFR §262.16(b)(5), "40 CFR part 265 subpart DD" is changed to "40 CFR Part 265, Subpart DD as adopted under §335.112(a)(22) of this title."(15) In 40 CFR §262.16(b)(5)(i), "40 CFR 265.1101" is changed to "40 CFR §265.1101 as adopted under §335.112(a)(22) of this title."(16) In 40 CFR §262.16(b)(7), "40 CFR part 268" is changed to "40 CFR Part 268 as adopted under Subchapter O of this title."(17) In 40 CFR §262.16(b)(8)(iv)(A) and (B), "(a)(8)(ii)" is changed to "(b)(8)(ii)."(18) In 40 CFR §262.16(d), "40 CFR parts 264, 265, 267, 268, and 270 of this chapter" is changed to "Chapter 335 of this title and the applicable chapters of this title" and the terms "EPA" and "Regional Administrator" are changed to the term "executive director." (19) In 40 CFR §262.16(e), "§264.72 or §265.72 of this chapter" is changed to "40 CFR §264.72 or §265.72 as adopted under §§335.112 or 335.152 of this title (relating to Standards and Standards)."(20) In 40 CFR §262.16(f), "subpart L of this part" is changed to "§335.60 of this title (relating to Alternative Standards for Episodic Generation)"; and "§262.17" is changed to "40 CFR §262.17 as adopted under subsection (f) of this section." (f) The commission adopts by reference the regulations contained in 40 CFR §262.17, as adopted in the Federal Register on November 28, 2016 (81 FR 85732), subject to the changes in this subsection.(1) In the introductory text to 40 CFR §262.17, "parts 124, 264 through 267, and 270 of this chapter" is changed to "Chapters 37, 39, 281 and 305 of this title, §335.2 of this title, and Subchapters E - H of this chapter."(2) In 40 CFR §262.17(a)(1)(i), "subparts AA, BB, and CC of 40 CFR part 265" is changed to "40 CFR Part 265, Subparts AA, BB, and CC as adopted under §335.112(a)(19) - (21) of this title (relating to Standards)."(3) In 40 CFR §262.17(a)(1)(vii)(A), "appendix V of part 265" is changed to "Appendix V of 40 CFR Part 265 as adopted under §335.112(A)(25)(D) of this title"; and "§265.17(b) of this chapter" is changed to "40 CFR §265.17(b) as adopted under §335.112(a)(1) of this title."(4) In 40 CFR §262.17(a)(1)(vii)(B), "appendix V of part 265" is changed to "Appendix V of 40 CFR Part 265 as adopted under §335.112(A)(24)(D) of this title"; and "§265.17(b) of this chapter" is changed to "40 CFR §265.17(b) as adopted under §335.112(a)(1) of this title."(5) In 40 CFR §262.17(a)(2), "subparts J, except §265.197(c) of Closure and post-closure care and §265.200" is changed to "40 CFR Part 265, Subpart J, except §265.197(c) of Closure and post-closure care and §265.200 as adopted under §335.112(a)(9) of this title"; and "AA, BB, and CC of 40 CFR part 265" is changed to "40 CFR Part 265, Subparts AA, BB, and CC as adopted under §335.112(a)(19) - (21) of this title."(6) In 40 CFR §262.17(a)(3)(i), "Subpart W of 40 CFR part 265 " is changed to "40 CFR Part 265, Subpart W as adopted under §335.112(a)(18) of this title."(7) In 40 CFR §262.17(a)(3)(ii), "§262.15" is changed to "40 CFR §262.15 as adopted under subsection (d) of this section."(8) In 40 CFR §262.17(a)(4), "40 CFR part 265 subpart DD" is changed to "40 CFR Part 265, Subpart DD as adopted under §335.112(a)(22) of this title."(9) In 40 CFR §262.17(a)(4)(i), "40 CFR 265.1101" is changed to "40 CFR §265.1101 as adopted under §335.112(a)(22) of this title." (10) In 40 CFR §262.17(a)(6), "subpart M of this part" is changed to "40 CFR Part 262, Subpart M as adopted under §335.61." (11) In 40 CFR §262.17(a)(7)(i)(A), "(a)(7)(iv)" is changed to "(a)(7)(iv)(C)."(12) In 40 CFR §262.17(a)(8)(ii)(B), "§265.310 of this chapter" is changed to "40 CFR §265.310 as adopted under §335.112(a)(13) of this title"; and "§265.445(b)" is changed to "40 CFR §265.445(b) as adopted under §335.112(a)(18) of this title."(13) In 40 CFR §262.17(a)(8)(iii)(A)(2), "§261.3(d) of this chapter" is changed to "40 CFR §261.3(d) as adopted under §335.504 of this title."(14) In 40 CFR §262.17(a)(8)(iii)(A)(3), "parts 262, 263, 265 and 268 of this chapter" is changed to "Chapter 335 of this title, and all applicable chapters of this title." (15) In 40 CFR §262.17(a)(8)(iii)(A)(4), "(a)(8)(ii)(A)(2)" is changed to "(a)(8)(iii)(A)(2)"; "§265.310 of this chapter" is changed to "40 CFR §265.310 as adopted under §335.112(a)(13) of this title"; and "subparts G and H of part 265 of this chapter" is changed to "40 CFR Part 265, Subparts G and H as adopted under §335.112(a)(6) and (7) of this title."(16) In 40 CFR §262.17(a)(8)(iv), "§265.445(a) and (b) of this chapter" is changed to "40 CFR §265.445(a) and (b) as adopted under §335.112(a)(18) of this title."(17) In 40 CFR §262.17(a)(9), "40 CFR part 268" is changed to "40 CFR Part 268 as adopted under Subchapter O of this title."(18) In 40 CFR §262.17(b), "40 CFR parts 124, 264 through 268, and part 270 of this chapter" is changed to "Chapters 37, 39, 281 and 305 of this title, §335.2 of this title and Subchapters E - H and O of this chapter" and the terms "EPA" and "Regional Administrator" are changed to the term "executive director." (19) In 40 CFR §262.17(c), "parts 124, 264 through 267 and part 270 of this chapter" is changed to "Chapters 37, 39, 281 and 305 of this title, §335.2 of this title and Subchapters E - H and O of this chapter." (20) In 40 CFR §262.17(c)(4)(i)(C), "subpart DD of 40 CFR part 265" is changed to "40 CFR Part 265, Subpart DD as adopted under §335.112(a)(22) of this title"; and "40 CFR 265.1101" is changed to "40 CFR §265.1101 as adopted under §335.112(a)(22) of this title." (21) In 40 CFR §262.17(c)(4)(ii), "subparts G and H of part 265" is changed to "40 CFR Part 265, Subparts G and H as adopted under §335.112(a)(6) and (7) of this title."(22) In 40 CFR §262.17(d), "parts 124, 264 through 267, 270" is changed to "Chapters 37, 39, 281 and 305 of this title, §335.2 of this title and Subchapters E - H of this chapter." (23) In 40 CFR §262.17(e), "40 CFR parts 124, 264 through 268, and 270 of this chapter" is changed to "Chapters 37, 39, 281 and 305 of this title, §335.2 of this title and Subchapters E - H and O of this chapter"; and the terms "EPA" and "Regional Administrator" are changed to the term "executive director."(24) In 40 CFR §262.17(f), "§260.10 of this chapter" is changed to "§3.2 of this title (relating to Definitions)" and "parts 124, 264 through 268, and 270 of this chapter" is changed to "Chapters 37, 39, 281 and 305 of this title, §335.2 of this title and Subchapters E - H and O of this chapter." (25) In 40 CFR §262.17(f)(1), "EPA" is changed to "TCEQ"; and "EPA Form 8700-12" is changed to "a method approved by the executive director."(26) In 40 CFR §262.17(f)(1)(ii), "Site ID form (EPA Form 8700-12)" is changed to "notification using a method approved by the executive director."(27) In 40 CFR §262.17(f)(3), "§262.10(a)(1)(iii)" is changed to "§335.52(a)(1)(C) of this title (relating to Purpose, Scope, and Applicability)."(28) In 40 CFR §262.17(g), "§264.72 or §265.72 of this chapter" is changed to "40 CFR §264.72 or §265.72 as adopted under §§335.112 or 335.152 of this title." (g) The commission adopts by reference the regulations contained in 40 CFR §262.18 (EPA identification numbers and re-notification for small quantity generators and large quantity generators), as adopted in the Federal Register on November 28, 2016 (81 FR 85732), subject to the changes in this subsection.(1) The term "Administrator" is changed to the term "executive director."(2) The generator shall provide the information required by the RCRA Site Identification Form (EPA Form 8700-12) using a method approved by the executive director.(3) In 40 CFR §262.18(d)(1), the re-notification required of a small and large quantity generator must be made to the executive director instead of the EPA. (4) In 40 CFR §262.18(d)(2), "Biennial Report required under §262.41" is changed to "Biennial Report required under 40 CFR §262.41 as adopted under §335.56 of this title (relating to Recordkeeping and Reporting Applicable to Small and Large Quantity Generators).</content><note type="source"><p>Source Note: The provisions of this §335.53 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scC/s335.54"><num value="335.54">§335.54</num><heading>Hazardous Waste Manifest</heading><content>The commission adopts by reference the regulations contained in 40 Code of Federal Regulations (CFR) Part 262, Subpart B, §§262.20 (General requirements), 262.21(a) - (f)(4) - (8) and (g) - (m) (Manifest tracking numbers, manifest printing, and obtaining manifests), 262.22 (Number of copies), 262.23 (Use of the manifest), 262.24 (Use of the electronic manifest), 262.25 (Electronic manifest signatures), and 262.27 (Waste minimization certification), as amended in the Federal Register through January 3, 2018 (83 FR 420), subject to the changes in this subsection.(1) In the event of a discharge of hazardous waste on a public or private right-of-way during the transportation of hazardous wastes the generator or transporter must also comply with the requirements of §335.93 of this title (relating to Hazardous Waste Discharges) and Chapter 327 of this title (relating to Spill Prevention and Control). (2) The reference to §262.40(a)(Recordkeeping) means 40 CFR §262.40(a) as adopted under §335.56 of this title (relating to Recordkeeping and Reporting Applicable to Small and Large Quantity Generators).(3) References to 40 CFR §§264.71, 264.72, or 265.72 mean as the section is adopted under §335.112 or §335.152 of this title (relating to Standards).(4) Generators shall comply with §335.10 of this title (relating to Shipping and Reporting Procedures Applicable to Generators Shipping Hazardous Waste or Class 1 Waste).(5) Users of the manifest are subject to 40 CFR §260.2(c) as adopted under §335.46(b) of this title (relating to Sharing of Information).</content><note type="source"><p>Source Note: The provisions of this §335.54 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scC/s335.55"><num value="335.55">§335.55</num><heading>Pre-Transport Requirements Applicable to Small and Large Quantity Generators</heading><content>The commission adopts by reference the regulations contained in 40 Code of Federal Regulations (CFR) Part 262, Subpart C, §§262.30 - 262.35 as amended in the Federal Register through November 28, 2016 (81 FR 85732), with the reference to §268.42(c) changed to "40 CFR §268.42(c) as adopted under §335.431 of this title (relating to Purpose, Scope, and Applicability)."</content><note type="source"><p>Source Note: The provisions of this §335.55 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scC/s335.56"><num value="335.56">§335.56</num><heading>Recordkeeping and Reporting Applicable to Small and Large Quantity Generators</heading><content>The commission adopts by reference the regulations contained in 40 Code of Federal Regulations (CFR) Part 262, Subpart D, §§262.40 - 262.44 as amended in the Federal Register through November 28, 2016 (81 FR 85732), subject to the changes in this subsection.(1) The term "Administrator" is changed to the term "executive director."(2) The terms "Regional Administrator" and "EPA Regional Administrator for the Region" are changed to the term "executive director." (3) Under 40 CFR §262.41: (A) a large quantity generator shall submit the information in United States Environmental Protection Agency (EPA) Form 8700-13 A/B required by 40 CFR §262.41 (Biennial report for large quantity generators), using the method approved by the executive director; and (B) "in accordance with the provisions of 40 CFR parts 264, 265, 266, 267 and 270" means in accordance with Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste) and the applicable chapters of this title. (4) References to "§261.31" or "§261.33(e)" mean as these sections are adopted under §335.504 of this title (relating to Hazardous Waste Determination). (5) References to "§262.11(f)" or "§262.17(f)" mean as these sections are adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste).(6) Reference to "§262.23(a)" means 40 CFR §262.23(a) as that section is adopted under §335.54 of this title (relating to Hazardous Waste Manifest).(7) Reference to §262.83(g) means 40 CFR §262.83(g) as that section is adopted under §335.58 of this title (relating to Transboundary Movements of Hazardous Waste for Recovery or Disposal)." (8) References to "40 CFR §264.72(e)(1) through (6)" or "40 CFR §265.72(e)(1) through (6)" mean as these sections are adopted under §335.112 and §335.152 of this title (relating to Standards).</content><note type="source"><p>Source Note: The provisions of this §335.56 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scC/s335.57"><num value="335.57">§335.57</num><heading>Farmers</heading><content>The commission adopts by reference the regulations contained in 40 Code of Federal Regulations (CFR) Part 262, Subpart G, §262.70 as amended in the Federal Register through July 14, 2006 (71 FR 40254), subject to the clarifications in this subsection.(1) Reference to "§261.7(b)(3)" is changed to "40 CFR §261.7(b)(3) as adopted under §335.504 of this title (relating to Hazardous Waste Determination)."(2) Reference to "40 CFR parts 264, 265, 268, or 270" is changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Solid Waste), or the applicable chapters of this title."</content><note type="source"><p>Source Note: The provisions of this §335.57 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scC/s335.58"><num value="335.58">§335.58</num><heading>Transboundary Movements of Hazardous Waste for Recovery or Disposal</heading><content>The commission adopts by reference the regulations contained in 40 Code of Federal Regulations Part 262, Subpart H, §§262.80 - 262.84 as amended in the Federal Register through August 6, 2018 (83 FR 38262). Availability and confidentiality of hazardous waste export, import, and transit information is subject to 40 CFR §260.2(d) as adopted under §335.46(c) of this title (relating to Sharing of Information).</content><note type="source"><p>Source Note: The provisions of this §335.58 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scC/s335.59"><num value="335.59">§335.59</num><heading>Alternative Requirements for Hazardous Waste Determination and Accumulation of Unwanted Material for Laboratories Owned by Eligible Academic Entities</heading><content>The commission adopts by reference the regulations contained in 40 Code of Federal Regulations (CFR) Part 262, Subpart K, §§262.200 - 262.216 as amended in the Federal Register through November 28, 2016 (81 FR 85732), subject to the changes in this subsection. (1) "Operating under this subpart" is changed to "operating under 40 CFR Part 262, Subpart K as adopted under this section."(2) "Provisions of this subpart" is changed to "provisions of 40 CFR Part 262, Subpart K as adopted under this section."(3) "Requirements of this subpart" is changed to "requirements of 40 CFR Part 262, Subpart K as adopted under this section." (4) An eligible academic entity notifying in accordance with 40 CFR §262.201 and §262.203 shall notify using a method approved by the executive director. (5) References to "§260.10" are changed to "§335.1 of this title (relating to Definitions)."(6) References to 40 CFR §§261.2, 261.3 and 261.5 mean as these sections are adopted under §335.504 of this title (relating to Hazardous Waste Determination).(7) References to "40 CFR part 261, subpart D", "40 CFR part 261, subpart C", and "§261.33(e)" mean as these parts and this section are adopted under §335.504 of this title.(8) Reference to "40 CFR part 262" means "40 CFR Part 262 as adopted under this subchapter."(9) References to 40 CFR §§262.11, 262.13, 262.14, 262.15, 262.16, and 262.17 mean as these sections are adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste).(10) References to 40 CFR §§262.203 and 262.206 - 262.214 mean as these sections are adopted under this section.(11) Reference to "§265.16(e)" is changed to "40 CFR §265.16(e) as adopted under §335.112 of this title (relating to Standards)."(12) In 40 CFR §262.213(a)(1), "1 kg or solid reactive acutely hazardous unwanted material" is changed to "1 kg of solid reactive acutely hazardous unwanted material."(13) Eligible academic entities who are also registered generators as defined in §335.13(d) of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators Shipping Hazardous Waste or Class 1 Waste) must report any laboratory waste in accordance with §335.9(a)(2) of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators). Such generators must report the management of the laboratory waste but are not required to report the quantities generated.</content><note type="source"><p>Source Note: The provisions of this §335.59 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scC/s335.60"><num value="335.60">§335.60</num><heading>Alternative Standards for Episodic Generation</heading><content>The commission adopts by reference the regulations contained in 40 Code of Federal Regulations (CFR) Part 262, Subpart L, as adopted in the Federal Register on November 28, 2016 (81 FR 85732), subject to the changes in this subsection.(1) Reference to "subpart B of this part" is changed to "40 CFR Part 262, Subpart B as adopted under §335.54 of this title (relating to Hazardous Waste Manifest)."(2) Reference to "§260.10 of this chapter" is changed to "§335.1 of this title (relating to Definitions)."(3) The term "EPA" is changed to the term "executive director." (4) The term "Regional Administrator" is changed to the term "executive director."(5) References to 40 CFR "§262.16(b)(2) of this chapter", "§262.16(b)(3)", and "§262.16(b)(9)(i)" mean as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste).(6) Under 40 CFR §262.232(a)(1), the reference to "§262.233" means as 40 CFR §262.233 is adopted under this section.(7) Under 40 CFR §262.232(a)(2) the very small quantity generator shall:(A) notify the executive director 30 days prior to initiating a planned episodic event by submitting the information required in United States Environmental Protection Agency (EPA) Form 8700-12 using a method approved by the executive director;(B) notify the executive director within 72 hours of an unplanned event in a manner approved by the executive director; (C) notify the executive director of an unplanned episodic event by submitting the information required in EPA Form 8700-12 using a method approved by the executive director.(D) When complying with the emergency procedures for a very small quantity generator under 40 CFR §262.16(b)(9)(i) referenced in 40 CFR §262.232(a)(2) or for a small quantity generator referred to in 40 CFR §262.232(b)(2), very small and small quantity generators shall also notify in accordance with and comply with §335.93 of this title (relating to Hazardous Waste Discharges), and Chapter 327 of this title (relating to Spill Prevention and Control).(8) Under 40 CFR §262.232(a)(3), the very small quantity generator that has not been issued an EPA identification (ID) number must obtain an EPA ID number by submitting the information required in EPA Form 8700-12 to the executive director using a method approved by the executive director. (9) In 40 CFR §262.232(b)(4), "from an episodic event waste on drip pads" is changed to "from an episodic event on drip pads."(10) In 40 CFR §262.232(b)(4)(ii)(C), "the date upon which each period of accumulation begins and ends" is changed to "the date upon which each episodic event begins."</content><note type="source"><p>Source Note: The provisions of this §335.60 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scC/s335.61"><num value="335.61">§335.61</num><heading>Preparedness, Prevention, and Emergency Procedures for Large Quantity Generators</heading><content>The commission adopts by reference the regulations contained in 40 Code of Federal Regulations (CFR) Part 262, Subpart M, §§262.250 - 262.256 and §§262.260 - 262.265, as adopted in the Federal Register on November 28, 2016 (81 FR 85732), subject to the changes in this subsection.(1) "Regulations of this subpart" means regulations of 40 CFR Part 262, Subpart M as adopted under this section.(2) "Standards of this part" means standards of 40 CFR Part 262 as adopted under this subchapter.(3) Reference to "§261.3(c) or (d) of this chapter" is changed to "40 CFR §261.3(c) or (d) as adopted under §335.504 of this title (relating to Hazardous Waste Determination)." (4) References to 40 CFR §§262.250, 262.252, 262.256, 262.260, 262.264, and 262.265 mean as these sections are adopted by reference under this section. (5) Reference to "part 262 of this chapter" mean "40 CFR Part 262 as adopted under this subchapter." (6) Reference to "part 263 of this chapter" is changed to "§335.11 and §335.14 of this title and Subchapter D of this chapter (relating to Standards Applicable to Transporters of Hazardous Waste)."(7) Reference to "the applicable requirements and conditions for exemption in Parts 262, 263, and 265 of this chapter" is changed to "the applicable requirements and conditions for exemption in this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste)."</content><note type="source"><p>Source Note: The provisions of this §335.61 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scD"><num value="D">SUBCHAPTER D</num><heading>STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scD/s335.91"><num value="335.91">§335.91</num><heading>Scope</heading><content>(a) This subchapter establishes standards for persons transporting hazardous waste to off-site storage, processing, or disposal facilities. These standards are in addition to any applicable provisions contained in Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste Management in General).(b) This subchapter does not apply to on-site transportation of hazardous waste by generators or by owners or operators of storage, processing or disposal facilities.(c) A hazardous waste transporter must also comply with the standards applicable to generators of hazardous waste found in §§335.6, 335.9, 335.10, and 335.13 of this title (relating to Notification Requirements; Recordkeeping and Annual Reporting Procedures Applicable to Generators; Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste; and Recordkeeping and Reporting Procedures Applicable to Generators Shipping Hazardous Waste or Class 1 Waste), Subchapter C of this chapter (relating to Standards Applicable to Generators of Hazardous Waste) including §335.52(d) of this title (relating to Purpose, Scope, and Applicability), and Subchapter R of this chapter (relating to Waste Classification) if the transporter:(1) transports hazardous waste into the state from a foreign country; or(2) mixes hazardous waste of different Department of Transportation shipping descriptions by placing them into a single container.(d) Transporters who store hazardous waste are owners or operators of storage facilities and, as such, are also subject to the permit requirements and storage standards contained in this chapter.(e) A transporter of hazardous waste that is being imported from or exported to any other country for purposes of recovery or disposal is subject to all relevant requirements of 40 Code of Federal Regulations (CFR), Part 262, Subpart H, as adopted under §335.58 of this title (relating to Transboundary Movements of Hazardous Waste for Recovery or Disposal), including, but not limited to, 40 CFR §262.83(d) and §262.84(d) for movement documents.(f) The regulations in this chapter do not apply to transportation during an explosives or munitions emergency response conducted in accordance with §335.41(d)(2) of this title (relating to Purpose, Scope and Applicability).(g) 40 CFR §266.203, as adopted by reference under Subchapter H, Division 6 of this chapter (relating to Military Munitions), identifies how the requirements of this subchapter apply to military munitions classified as solid waste under 40 CFR §266.202.</content><note type="source"><p>Source Note: The provisions of this §335.91 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective April 12, 2001, 26 TexReg 2741; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective June 11, 2020, 45 TexReg 3780; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scD/s335.92"><num value="335.92">§335.92</num><heading>EPA Identification Number</heading><content>A transporter must not transport hazardous wastes without having received an Environmental Protection Agency (EPA) identification number.</content><note type="source"><p>Source Note: The provisions of this §335.92 adopted to be effective May 28, 1986, 11 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scD/s335.93"><num value="335.93">§335.93</num><heading>Hazardous Waste Discharges</heading><content>(a) In the event of a discharge of hazardous waste during transportation, the transporter shall notify the commission as soon as possible and not later than 24 hours after the occurrence, according to the provisions of the Texas Water Code, §26.039, and the procedures set out in the State Oil and Hazardous Substances Spill Contingency Plan, and also take appropriate immediate action to protect human health and the environment (e.g., notify local authorities, dike the discharge).(b) If a discharge of hazardous waste occurs during transportation and a commission official acting within the scope of his official responsibilities determines that immediate removal of the waste is necessary to protect human health or the environment, that official may authorize the removal of the waste by transporters who do not have EPA identification numbers and without the preparation of a manifest.(c) An air, rail, highway, or water transporter who has discharged hazardous waste must also:(1) give notice, if required by 49 Code of Federal Regulations (CFR) §171.15, to the National Response Center (800-424-8802 or 202-426-2675); and(2) report in writing as required by 49 CFR §171.16 to the Director, Office of Hazardous Waste Materials Regulations, Materials Transportation Bureau, Department of Transportation, Washington, D.C. 20590.(d) A water (bulk shipment) transporter who has discharged hazardous waste must give the same notice as required by 33 CFR §153.203 for oil and hazardous substances.(e) A transporter must clean up any hazardous waste discharge that occurs during transportation or take such action as required in §327.5 of this title (relating to Actions Required) so that the hazardous waste discharge no longer presents a hazard to human health or the environment.</content><note type="source"><p>Source Note: The provisions of this §335.93 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scD/s335.94"><num value="335.94">§335.94</num><heading>Transfer Facility Requirements</heading><content>(a) Unless the executive director determines that a permit should be required in order to protect human health and the environment, a transporter who stores manifested shipments of hazardous waste in containers meeting the independent requirements of 40 Code of Federal Regulations (CFR) §262.30 (Packaging) as adopted under §335.55 of this title (relating to Pre-Transport Requirements Applicable to Small and Large Quantity Generators), at a transfer facility owned or operated by a registered transporter for a period of ten days or less is not subject to the requirement for a permit under §335.2 of this title (relating to Permit Required), with respect to the storage of those wastes provided that the transporter complies with the following sections:(1) 40 CFR §265.14 (Security);(2) 40 CFR §265.15 (General Inspection Requirements);(3) 40 CFR §265.16 (Personnel Training);(4) 40 CFR Part 265, Subpart C;(5) 40 CFR Part 265, Subpart D (except §265.56(j)) and §335.113 of this title (relating to Reporting of Emergency Situations by Emergency Coordinator); and(6) 40 CFR Part 265, Subpart I.(b) The executive director may require a permit for that portion of a facility otherwise exempted from that requirement under subsection (a) of this section, with respect to the storage of hazardous waste in containers, if the facility's operation also includes other storage and processing of hazardous waste which is not exempt under subsection (a) of this section.(c) When consolidating the contents of two or more containers with the same hazardous waste into a new container, or when combining and consolidating two different hazardous wastes that are compatible with each other, the transporter must mark its containers of 119 gallons or less with the following information:(1) The words "Hazardous Waste"; and(2) The applicable United States Environmental Protection Agency hazardous waste number(s) in 40 CFR Part 261, Subparts C and D, as adopted under §335.504 of this title (relating to Hazardous Waste Determination) or in compliance with 40 CFR §262.32(c), as adopted under §335.55 of this title.</content><note type="source"><p>Source Note: The provisions of this §335.94 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scE"><num value="E">SUBCHAPTER E</num><heading>INTERIM STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, OR DISPOSAL FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.111"><num value="335.111">§335.111</num><heading>Purpose, Scope, and Applicability</heading><content>(a) The purpose of this subchapter is to establish minimum requirements that define the acceptable management of hazardous waste prior to the issuance or denial of a hazardous waste permit and until certification of final closure or, if the facility is subject to post-closure requirements, until post-closure responsibilities are fulfilled. Except as provided in 40 Code of Federal Regulations (CFR) §265.1080(b), this subchapter and the standards of 40 CFR §§264.552, 264.553, and 264.554 apply to owners and operators of hazardous waste storage, processing, or disposal facilities who have fully complied with the requirements for interim status under the Resource Conservation and Recovery Act (RCRA), §3005(e), except as specifically provided for in §335.41 of this title (relating to Purpose, Scope and Applicability).(b) United States Environmental Protection Agency (EPA) Hazardous Waste Numbers F020, F021, F022, F023, F026, or F027 must not be managed at facilities subject to regulation under this subchapter, unless:(1) the wastewater treatment sludge is generated in a surface impoundment as part of the plant's wastewater treatment system;(2) the waste is stored in tanks or containers;(3) the waste is stored or processed in waste piles that meet the requirements of 40 CFR §264.250(c) as well as all other applicable requirements of 40 CFR Part 265, Subpart L, and §335.120 of this title (relating to Containment for Waste Piles);(4) the waste is burned in incinerators that are certified pursuant to the standards and procedures in 40 CFR §265.352; or(5) the waste is burned in facilities that thermally process the waste in a device other than an incinerator and that are certified pursuant to the standards and procedures in 40 CFR §265.383.(c) The requirements of this section apply to owners or operators of all facilities which process, store or dispose of hazardous waste referred to in 40 CFR Part 268, and the 40 CFR Part 268 standards are considered material conditions or requirements of the Part 265 interim status standards incorporated by reference in §335.112 of this title (relating to Standards).(d) Owners and operators who are subject to the requirements to obtain a post-closure permit under §335.2 and §335.43 of this title (relating to Permit Required), but who obtain a post-closure order in lieu of a post-closure permit as provided in §335.2(m) of this title, must:(1) submit information about the facility listed in §305.50(b) of this title (relating to Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order);(2) comply with facility-wide corrective action requirements of §335.167 of this title (relating to Corrective Action for Solid Waste Management Units);(3) comply with the groundwater monitoring requirements of §§335.156 - 335.166 of this title (relating to Applicability of Groundwater Monitoring and Response; Required Programs; Groundwater Protection Standard; Hazardous Constituents; Concentration Limits; Point of Compliance; Compliance Period; General Groundwater Monitoring Requirements; Detection Monitoring Program; Compliance Monitoring Program; and Corrective Action Program); and(4) comply with the financial assurance requirements of Chapter 37, Subchapter P of this title (relating to Financial Assurance for Hazardous and Nonhazardous Industrial Solid Waste Facilities).(e) The commission may replace all or part of the closure requirements of 40 CFR Part 265, Subpart G (relating to Closure and Post-Closure), as amended and adopted in §335.112(a)(6) of this title and the unit specific standards in §335.123 of this title (relating to Closure and Post-Closure (Land Treatment Facilities)) applying to a regulated unit with alternative requirements for closure set out in a permit or a post-closure order where the commission determines that:(1) a regulated unit is situated among solid waste management units or area of concern, a release has occurred, and both the regulated unit and one or more solid waste management unit(s) or area of concern are likely to have contributed to the release; and(2) it is not necessary to apply the closure requirement of this subchapter because the alternative requirements will be protective of human health and the environment and will satisfy the closure performance standards of §335.8 of this title (relating to Closure and Remediation) and §335.167 of this title.</content><note type="source"><p>Source Note: The provisions of this §335.111 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective February 22, 1994, 19 TexReg 969; amended to be effective April 12, 2001, 26 TexReg 2741; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective January 30, 2003, 28 TexReg 715; amended to be effective February 21, 2013, 38 TexReg 978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.112"><num value="335.112">§335.112</num><heading>Standards</heading><content>(a) The following regulations contained in 40 Code of Federal Regulations (CFR) Part 265 (including all appendices to 40 CFR Part 265) (except as otherwise specified in this section) are adopted by reference as amended in the Federal Register through June 1, 1990 (55 FR 22685) and as further amended as indicated in each paragraph of this subsection:(1) Subpart B - General Facility Standards (as amended in the Federal Register through November 28, 2016 (81 FR 85732));(2) Subpart C - Preparedness and Prevention;(3) Subpart D - Contingency Plan and Emergency Procedures (as amended in the Federal Register through March 18, 2010 (75 FR 12989)), except 40 CFR §265.56(d);(4) Subpart E - Manifest System, Recordkeeping, and Reporting (as amended in the Federal Register through January 3, 2018 (83 FR 420)), except 40 CFR §265.76 and §265.77; (5) Subpart F - Groundwater Monitoring (as amended in the Federal Register through April 4, 2006 (71 FR 16862)), except 40 CFR §265.90 and §265.94;(6) Subpart G - Closure and Post-Closure (as amended in the Federal Register through July 14, 2006 (71 FR 40254)); except 40 CFR §265.112(d)(3) and (4) and §265.118(e) and (f);(7) Subpart H - Financial Requirements (as amended in the Federal Register through September 16, 1992 (57 FR 42832)); except 40 CFR §§265.140, 265.141, 265.142(a)(2), (b) and (c), 265.143(a) - (g), 265.144(b) and (c), 265.145(a) - (g), 265.146, 265.147(a) - (d), and (f) - (k), and 265.148 - 265.150;(8) Subpart I - Use and Management of Containers (as amended in the Federal Register through November 28, 2016 (81 FR 85732));(9) Subpart J - Tank Systems (as amended in the Federal Register through November 28, 2016 (81 FR 85732));(10) Subpart K - Surface Impoundments (as amended in the Federal Register through July 14, 2006 (71 FR 40254));(11) Subpart L - Waste Piles (as amended in the Federal Register through July 14, 2006 (71 FR 40254)), except 40 CFR §265.253;(12) Subpart M - Land Treatment (as amended in the Federal Register through July 14, 2006 (71 FR 40254)) except, 40 CFR §§265.272, 265.279, and 265.280;(13) Subpart N - Landfills (as amended in the Federal Register through March 18, 2010 (75 FR 12989)), except 40 CFR §§265.301(f) - (i), 265.314, and 265.315;(14) Subpart O - Incinerators (as amended in the Federal Register through October 12, 2005 (70 FR 59402));(15) Subpart P - Thermal Treatment (as amended in the Federal Register through July 17, 1991 (56 FR 32692));(16) Subpart Q - Chemical, Physical, and Biological Treatment (as amended in the Federal Register through July 14, 2006 (71 FR 40254));(17) Subpart R - Underground Injection;(18) Subpart W - Drip Pads (as amended in the Federal Register through July 14, 2006 (71 FR 40254));(19) Subpart AA - Air Emission Standards for Process Vents (as amended in the Federal Register through November 28, 2016 (81 FR 85732));(20) Subpart BB - Air Emission Standards for Equipment Leaks (as amended in the Federal Register through November 28, 2016 (81 FR 85732));(21) Subpart CC - Air Emission Standards for Tanks, Surface Impoundments, and Containers (as amended in the Federal Register through January 3, 2018 (83 FR 420));(22) Subpart DD - Containment Buildings (as amended in the Federal Register through November 28, 2016 (81 FR 85732));(23) Subpart EE - Hazardous Waste Munitions and Explosives Storage (as amended in the Federal Register through February 12, 1997 (62 FR 6622)); (24) Subpart FF - Fees for the Electronic Hazardous Waste Manifest Program (as amended in the Federal Register through January 3, 2018 (83 FR 420); and(25) the following appendices contained in 40 CFR Part 265:(A) Appendix I - Recordkeeping Instructions (as amended in the Federal Register through March 24, 1994 (59 FR 13891));(B) Appendix III - EPA Interim Primary Drinking Water Standards;(C) Appendix IV - Tests for Significance;(D) Appendix V - Examples of Potentially Incompatible Waste; and(E) Appendix VI - Compounds With Henry's Law Constant Less Than 0.1 Y/X.(b) Except in 40 CFR §265.71 adopted under subsection (a)(4) of this section and 40 CFR Part 265, Subpart FF adopted under subsection (a)(24) of this section, the regulations of the United States Environmental Protection Agency (EPA) that are adopted by reference in this section are adopted subject to the following changes.(1) The term "regional administrator" is changed to the "executive director" of the Texas Commission on Environmental Quality or to the commission, consistent with the organization of the commission as set out in Texas Water Code, Chapter 5, Subchapter B.(2) The term "treatment" is changed to "processing."(3) Reference to Resource Conservation and Recovery Act, §3008(h) is changed to Texas Water Code, §7.031(c) - (e) (Corrective Action Relating to Hazardous Waste).(4) Reference to:(A) 40 CFR §260.10 is changed to §335.1 of this title (relating to Definitions);(B) 40 CFR §264.90 is changed to §335.156 of this title (relating to Applicability of Groundwater Monitoring and Response);(C) 40 CFR §264.101 is changed to §335.167 of this title (relating to Corrective Action for Solid Waste Management Units);(D) 40 CFR §264.310 is changed to §335.174 of this title (relating to Closure and Post-Closure Care (Landfills));(E) 40 CFR §265.1 is changed to §335.111 of this title (relating to Purpose, Scope, and Applicability);(F) 40 CFR §265.90 is changed to §335.116 of this title (relating to Applicability of Groundwater Monitoring Requirements);(G) 40 CFR §265.94 is changed to §335.117 of this title (relating to Recordkeeping and Reporting);(H) 40 CFR §265.314 is changed to §335.125 of this title (relating to Special Requirements for Bulk and Containerized Waste);(I) 40 CFR §270.1 is changed to §335.2 of this title (relating to Permit Required);(J) 40 CFR §270.28 is changed to §305.50 of this title (relating to Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order);(K) 40 CFR §270.41 is changed to §305.62 of this title (relating to Amendments);(L) 40 CFR §270.42 is changed to §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee); and(M) Qualified professional engineer is changed to Texas licensed professional engineer.(5) 40 CFR Parts 260 - 270 means the commission's rules including, but not limited to, Chapters 50, 305, and 335 of this title (relating to Action on Applications and Other Authorizations; Consolidated Permits; and Industrial Solid Waste and Municipal Hazardous Waste), as applicable.(6) Reference to 40 CFR Part 265, Subpart D (Contingency Plan and Emergency Procedures) is changed to §335.112(a)(3) of this title (relating to Standards) and §335.113 of this title (relating to Reporting of Emergency Situations by Emergency Coordinator). (7) References to 40 CFR §265.76 and §265.77 are changed to §335.15(3) of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities), and §335.115 of this title (relating to Additional Reports), respectively.(8) Reference to 40 CFR Part 264, Subpart F is changed to §335.156 of this title, §335.157 of this title (relating to Required Programs), §335.158 of this title (relating to Groundwater Protection Standard), §335.159 of this title (relating to Hazardous Constituents), §335.160 of this title (relating to Concentration Limits), §335.161 of this title (relating to Point of Compliance), §335.162 of this title (relating to Compliance Period), §335.163 of this title (relating to General Groundwater Monitoring Requirements), §335.164 of this title (relating to Detection Monitoring Program), §335.165 of this title (relating to Compliance Monitoring Program), §335.166 of this title (relating to Corrective Action Program), and §335.167 of this title.(9) Reference to 40 CFR Part 265, Subpart F is changed to include §335.116 and §335.117 of this title, in addition to the reference to 40 CFR Part 265, Subpart F, except §265.90 and §265.94.(10) Reference to the EPA is changed to the Texas Commission on Environmental Quality.</content><note type="source"><p>Source Note: The provisions of this §335.112 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective September 1, 1986, 11 TexReg 3696; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective July 27, 1988, 13 TexReg 3515; amended to be effective August 4, 1989, 14 TexReg 3532; amended to be effective October 29, 1990, 15 TexReg 6017; amended to be effective March 18, 1991, 16 TexReg 1369; amended to be effective July 16, 1991, 16 TexReg 3730; amended to be effective December 13, 1991, 16 TexReg 6936; amendedto be effective July 29, 1992, 17 TexReg 5017; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective February 26, 1996, 21 TexReg 1142; amended to be effective November 20, 1996, 21 TexReg 10983; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective May 20, 1999, 24 TexReg 3726; amended to be effective October 7, 1999, 24 TexReg 8562; amended to be effective March 21, 2000, 25 TexReg 2394; amended to be effective April 12, 2001, 26 TexReg 2741; amended to be effective November 18, 2001, 26 TexReg 9153; amended to be effective January 30, 2003, 28 TexReg 715; amended to be effective August 31, 2006, 31 TexReg 6755; amended to be effective October 29, 2009, 34 TexReg 7321; amended to be effective February 21, 2013, 38 TexReg 978; amended to be effective June 16, 2016, 41 TexReg 4259; amended to be effective June 11, 2020,45TexReg 3780; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.113"><num value="335.113">§335.113</num><heading>Reporting of Emergency Situations by Emergency Coordinator</heading><content>If the emergency coordinator determines that the facility has had a release, fire, or explosion which could threaten human health or the environment outside the facility, he must report his findings as follows.(1) If his assessment indicates that evacuation of local areas may be advisable, he must immediately notify appropriate local authorities. He must be available to help appropriate local officials decide whether local areas should be evacuated.(2) He must immediately notify the commission according to procedures set out in the State of Texas oil and hazardous substances spill contingency plan. The report must include:(A) name and telephone number of reporter;(B) name and address of facility;(C) time and place of incident (e.g., release, fire);(D) name and quantity of material(s) involved, to the extent known;(E) the extent of injuries, if any; and(F) the possible hazards to human health or the environment outside the facility.</content><note type="source"><p>Source Note: The provisions of this §335.113 adopted to be effective May 28, 1986, 11 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.115"><num value="335.115">§335.115</num><heading>Additional Reports</heading><content>In addition to submitting the waste reports described in §335.15 of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners and Operators of Storage, Processing, or Disposal Facilities) and the reports described in this subchapter, the owner or operator must also report to the executive director:(1) releases, fires, and explosions as specified in 40 Code of Federal Regulations (CFR) §265.56(j);(2) groundwater contamination and monitoring data as specified in 40 CFR §265.93 and §335.117 of this title (relating to Recordkeeping and Reporting);(3) facility closure as specified in 40 CFR §265.115; and(4) as otherwise required by §335.112(a)(2) of this title (relating to Standards), which incorporates the requirements of 40 CFR Part 265, Subparts AA and BB.</content><note type="source"><p>Source Note: The provisions of this §335.115 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective May 20, 1999, 24 TexReg 3726; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.116"><num value="335.116">§335.116</num><heading>Applicability of Groundwater Monitoring Requirements</heading><content>(a) On November 19, 1981, the owner or operator of a surface impoundment, landfill, or land treatment facility which is used to manage hazardous waste must implement a groundwater monitoring program capable of determining the facility's impact on the quality of groundwater in the uppermost aquifer underlying the facility, except as provided in subsection (c) of this section.(b) Except as provided in subsections (c), (d), and (g) of this section, the owner or operator must install, operate, and maintain a groundwater monitoring system which meets the requirements of 40 Code of Federal Regulations (CFR) §265.91, and must comply with 40 CFR §265.92 and §265.93, and §335.117 of this title (relating to Recordkeeping and Reporting). This groundwater monitoring program must be carried out during the active life of the facility, and for disposal facilities during the post-closure care period as well.(c) All or part of the groundwater monitoring requirements of this subchapter may be waived if the owner or operator can demonstrate that there is a low potential for migration of hazardous waste or hazardous waste constituents from the facility via the uppermost aquifer to water supply wells (domestic, industrial, or agricultural) or to surface water. This demonstration must be in writing and must be kept at the facility. This demonstration shall be certified by a licensed professional geoscientist or geotechnical engineer and must establish the following:(1) the potential for migration of hazardous waste constituents from the facility to the uppermost aquifer, by an evaluation of:(A) a water balance of precipitation, evapotranspiration, runoff, and infiltration; and(B) unsaturated zone characteristics (i.e., geologic materials, physical properties, and depth to groundwater); and(2) the potential for hazardous waste or hazardous waste constituents which enter the uppermost aquifer to migrate to a water supply well or surface water, by an evaluation of:(A) saturated zone characteristics (i.e., geologic materials, physical properties, and rate of groundwater flow); and(B) the proximity of the facility to water supply wells or surface water.(d) If an owner or operator assumes (or knows) that groundwater monitoring of indicator parameters in accordance with 40 CFR §265.91 and §265.92 would show statistically significant increases (or decreases in the case of pH) when evaluated under 40 CFR §265.93(b), he may install, operate, and maintain an alternate groundwater monitoring system (other than the one described in 40 CFR §265.91 and §265.92). If the owner or operator does decide to use an alternate groundwater monitoring system he must:(1) prior to November 19, 1981, develop a specific plan certified by a Texas licensed professional geoscientist or geotechnical engineer which satisfies the requirements of 40 CFR §265.93(d)(3), for an alternate groundwater monitoring system. This plan is to be placed in the facility's operating record and maintained until closure of the facility;(2) prior to November 19, 1981, initiate the determinations specified in 40 CFR §265.93(d)(4);(3) prepare a written report in accordance with 40 CFR §265.93(d)(5) and place it in the facility's operating record and maintain until closure of the facility;(4) continue to make the determinations specified in 40 CFR §265.93(d)(4) on a quarterly basis until final closure of the facility; and(5) comply with the recordkeeping and reporting requirements in §335.117 of this title.(e) The groundwater monitoring requirements of this subchapter may be waived with respect to any surface impoundment that:(1) is used to neutralize wastes which are hazardous solely because they exhibit the corrosivity characteristic under 40 CFR §261.22 or are listed as hazardous wastes in 40 CFR Part 261, Subpart D, only for this reason; and(2) contains no other hazardous wastes, if the owner or operator can demonstrate that there is no potential for migration of hazardous wastes from the impoundment. The demonstrations must establish, based upon consideration of the characteristics of the wastes and the impoundment, that the corrosive wastes will be neutralized to the extent that they no longer meet the corrosivity characteristic before they can migrate out of the impoundment. The demonstration must be in writing and must be certified by a qualified professional.(f) For owners and operators who have not established background concentrations or values in accordance with 40 CFR §265.92(c) by November 19, 1982, the executive director may require the implementation of a groundwater assessment plan under 40 CFR §265.93, whenever he determines that existing data indicates that there is a substantial likelihood that hazardous waste or hazardous constituents from the facility have entered the uppermost aquifer.(g) The commission may replace all or part of the requirements of this subchapter applying to a regulated unit with alternative requirements developed for groundwater monitoring set out in a permit or a post-closure order where the commission determines that:(1) a regulated unit is situated among solid waste management units or area of concern, a release has occurred, and both the regulated unit and one or more solid waste management unit(s) or area of concern are likely to have contributed to the release; and(2) it is not necessary to apply the requirement of this subchapter because the alternative requirements will be protective of human health and the environment. The alternative standards for the regulated unit must meet the requirements of §335.8 and §335.167 of this title (relating to Closure and Remediation and Corrective Action for Solid Waste Management Units).</content><note type="source"><p>Source Note: The provisions of this §335.116 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective January 30, 2003, 28 TexReg 715; amended to be effective September 1, 2003, 28 TexReg 6915; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.117"><num value="335.117">§335.117</num><heading>Recordkeeping and Reporting</heading><content>(a) Unless the groundwater is monitored to satisfy the requirements of 40 Code of Federal Regulations (CFR) §265.93(d)(4), the owner or operator must:(1) keep records of the analyses required in 40 CFR §265.92(c) and (d), the associated groundwater surface elevations required in 40 CFR §265.92(e), and the evaluations required in §335.93(b) of this title (relating to Hazardous Waste Discharges) throughout the active life of the facility, and, for disposal facilities, throughout the post-closure care period as well; and(2) report the following groundwater monitoring information to the executive director:(A) during the first year, when initial background concentrations are being established for the facility, concentrations or values of the parameters listed in 40 CFR §265.92(b)(1) for each groundwater monitoring well within 15 days after completing each quarterly analysis. The owner or operator must separately identify for each monitoring well any parameters whose concentration or value has been found to exceed the maximum contaminant levels listed in Appendix III of 40 CFR Part 265.(B) quarterly, during the initial year of groundwater monitoring, concentrations or values of the parameters listed in 40 CFR §265.92(b)(2) and (3) for each groundwater monitoring well. Annually thereafter, concentrations or values of the parameters listed in 40 CFR §265.92(b)(3) for each groundwater monitoring well, along with the required evaluations for these parameters under 40 CFR §265.93(b). The owner or operator must separately identify any significant differences from initial background found in the upgradient wells, in accordance with 40 CFR §265.93(c)(1). In addition, concentration of the groundwater quality parameters listed in 40 CFR §265.92(b)(2) shall be reported annually.(C) as a part of the annual report, results of the evaluation of groundwater surface elevations under 40 CFR §265.93(f), and a description of the response to that evaluation where applicable.(b) If the groundwater is monitored to satisfy the requirements of 40 CFR §265.93(d)(4), the owner or operator must:(1) keep records of the analyses and evaluations specified in the plan which satisfies the requirements of 40 CFR §265.93(d)(3), throughout the active life of the facility, and, for disposal facilities, throughout the post-closure care period as well; and(2) annually, until final closure of the facility, submit to the executive director a report containing the results of his groundwater quality assessment program which includes, but is not limited to, the calculated (or measured) rate of migration of hazardous waste or hazardous waste constituents in the groundwater during the reporting period.(c) The owner or operator shall submit, upon request of the executive director, the following static information for each groundwater monitoring well:(1) date of well construction;(2) total depth of well (based on mean sea level);(3) type of well (ex. trench lysimeter, piezometer, well cluster, multiple screen, pressure vacuum, lysimeter);(4) latitude/longitude (based on United States Geological Survey topographic map);(5) geologic age of aquifer sampled;(6) aquifer name/geologic formation and age.(d) The owner or operator shall submit, upon request of the executive director, the following information on each sampling event for each groundwater monitoring well sampled:(1) date of observation;(2) depth to water level (based upon mean sea level);(3) sample collection method (i.e. pumped well, bailer, probe, air-lift pump, jetted, peristaltic pump, centrifugal pump, or pitcher pump);(4) depth to the top of the sample interval which is measured in the number of feet below the land surface datum (LSD);(5) depth to the bottom of the sample interval which is measured in feet below the LSD.</content><note type="source"><p>Source Note: The provisions of this §335.117 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective May 20, 1999, 24 TexReg 3726; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.118"><num value="335.118">§335.118</num><heading>Closure Plan; Submission and Approval of Plan</heading><content>(a) Except as provided in this section, the owner or operator must submit his closure plan to the executive director in accordance with the procedures outlined in 40 Code of Federal Regulations (CFR) §265.112. The owner or operator must submit his closure plan to the executive director no later than 15 days after:(1) termination of interim status (except when a permit is issued to the facility simultaneously with termination of interim status); or(2) issuance of a judicial decree or compliance order under the Resource Conservation and Recovery Act or Texas Health and Safety Code, Chapter 361, to cease receiving wastes or close.(b) Except as provided in subsection (c) of this section, the executive director will provide the owner or operator and the public, through newspaper notice, the opportunity to submit written comments on the plan and request modifications of the plan within 30 days of the date of the notice. The owner or operator is responsible for the cost of publication. The executive director may, in response to a request or at his own discretion, hold a public hearing whenever such a hearing might clarify one or more issues concerning a closure plan. The executive director will give public notice of the hearing at least 30 days before it occurs. (Public notice of the hearing may be given at the same time as notice of the opportunity for the public to submit written comments, and the two notices may be combined.) The executive director will approve, modify, or disapprove the plan within 90 days of receipt. If the executive director does not approve the plan, he shall provide the owner or operator with a detailed written statement of reasons for the refusal and the owner or operator must modify the plan or submit a new plan within 30 days after receiving such written statement. The executive director will approve or modify this plan in writing within 60 days. If the executive director modifies the plan, this modified plan becomes the approved closure plan. The executive director's decision must assure that the approved closure plan is consistent with 40 CFR §§265.111 - 265.115, and the applicable closure requirements contained in this chapter for specific waste management methods, and contained in 40 CFR §265.1102. A copy of this modified plan with a detailed statement of reasons for the modifications must be mailed to the owner or operator.(c) Closure plans submitted in an application for a post-closure order in accordance with §305.50(b) of this title (relating to Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order) must comply with the public notice and comment requirements specified in Chapter 39, Subchapter N of this title (relating to Public Notice of Post Closure Orders).</content><note type="source"><p>Source Note: The provisions of this §335.118 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective February 26, 1996, 21 TexReg 1142; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective January 30, 2003, 28 TexReg 715; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.119"><num value="335.119">§335.119</num><heading>Post-Closure Plan; Submission and Approval of Plan</heading><content>(a) The owner or operator of a facility with hazardous waste management units subject to the post-closure care requirements in 40 Code of Federal Regulations (CFR) Part 265, Subpart G, must submit his post-closure plan to the executive director at least 180 days before the date he expects to begin partial or final closure of the first hazardous waste disposal unit. The date when he expects to begin closure must be either within 30 days after the date on which the hazardous waste management unit receives the known final volume of hazardous wastes or, if there is a reasonable possibility that the hazardous waste management unit will receive additional hazardous waste no later than one year after the date on which the unit received the most recent volume of hazardous wastes. The owner or operator must submit his post-closure plan to the executive director no later than 15 days after:(1) termination of interim status (except when a permit is issued to the facility simultaneously with termination of interim status); or(2) issuance of a judicial decree or compliance order under the Resource Conservation and Recovery Act of 1976, §3008, as amended, or Texas Health and Safety Code, Chapter 361, to cease receiving wastes or close.(b) Except as provided in subsection (c) of this section, the executive director will provide the owner or operator and the public, through a newspaper notice, the opportunity to submit written comments on the post-closure plan and request modifications of the plan, including modification of the 30-year post-closure period required in 40 CFR §265.117 within 30 days of the date of the notice. The owner or operator is responsible for the cost of publication. The executive director may, in response to a request or at his own discretion, hold a public hearing whenever a hearing might clarify one or more issues concerning the post-closure plan. The executive director will give the public notice of the hearing at least 30 days before it occurs. (Public notice of the hearing may be given at the same time as notice of the opportunity for written public comments and the two notices may be combined.) The executive director will approve, modify, or disapprove the plan within 90 days of its receipt. If the executive director does not approve the plan, he shall provide the owner or operator with a detailed written statement of reasons for the refusal and the owner or operator must modify the plan or submit a new plan for approval within 30 days after receiving such written statement. The executive director will approve or modify this plan in writing within 60 days. If the executive director modifies the plan, this modified plan becomes the approved post-closure plan. The executive director must ensure that the approved post-closure plan is consistent with 40 CFR §§265.117 - 265.120. A copy of this modified plan with a detailed statement of reasons for the modifications must be mailed to the owner or operator. If an owner or operator plans to begin closure before November 19, 1981, he must submit the post-closure plan by May 19, 1981.(c) Post-closure plans submitted in an application for a post-closure order in accordance with §305.50(b) of this title (relating to Additional Requirements for an Application for a Hazardous or Industrial Solid Waste Permit and for a Post-Closure Order) must comply with the public notice and comment requirements specified in Chapter 39, Subchapter N of this title (regarding Public Notice of Post-Closure Orders).</content><note type="source"><p>Source Note: The provisions of this §335.119 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective January 30, 2003, 28 TexReg 715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.120"><num value="335.120">§335.120</num><heading>Containment for Waste Piles</heading><content>If leachate or run-off from a pile is a hazardous waste, then either:(1) the pile must be placed on an impermeable base that is compatible with the waste under the conditions of treatment or storage; the owner or operator must design, construct, operate, and maintain a run-on control system capable of preventing flow onto the active portion of the pile during peak discharge from at least a 100-year storm; the owner or operator must design, construct, operate, and maintain a run-off management system to collect and control at least the water volume resulting from a 24-hour, 100-year storm; and collection and holding facilities (e.g., tanks or basins) associated with run-on and run-off control, systems must be emptied or otherwise managed expeditiously to maintain design capacity of the system;(2) the pile is managed such that:(A) the pile must be protected from precipitation and run-on by some other means; and(B) no liquids or wastes containing free liquids may be placed in the pile.</content><note type="source"><p>Source Note: The provisions of this §335.120 adopted to be effective May 28, 1986, 11 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.121"><num value="335.121">§335.121</num><heading>General Operating Requirements (Land Treatment Facilities)</heading><content>(a) Hazardous waste must not be placed in or on a land treatment facility unless the waste can be made less hazardous or nonhazardous by degradation, transformation, or immobilization processes occurring in or on the soil.(b) The owner or operator must design, construct, operate, and maintain a run-control system capable of preventing flow on to the active portions of the facility during peak discharge from at least a 100-year storm.(c) The owner or operator must design, construct, operate, and maintain a run-off management system capable of collecting and controlling a water volume at least equivalent to a 24-hour, 100-year storm.(d) Collection and holding facilities (e.g., tanks or basins) associated with run-on and run-off control systems must be emptied or otherwise managed expeditiously after storms to maintain design capacity of the system.(e) If the treatment zone contains particulate matter which may be subject to wind dispersal, the owner or operator must manage the unit to control wind dispersal.</content><note type="source"><p>Source Note: The provisions of this §335.121 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective July 14, 1987, 12 TexReg 2106.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.122"><num value="335.122">§335.122</num><heading>Recordkeeping</heading><content>The owner of a land treatment facility must keep records of the application dates, application rates, quantities, and location of each hazardous waste placed in the facility in the operating record required in 40 Code of Federal Regulations §265.73.</content><note type="source"><p>Source Note: The provisions of this §335.122 adopted to be effective May 28, 1986, 11 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.123"><num value="335.123">§335.123</num><heading>Closure and Post-Closure (Land Treatment Facilities)</heading><content>(a) In the closure plan under 40 Code of Federal Regulations (CFR) §265.112 and the post-closure plan under 40 CFR §265.118, the owner or operator must address the following objectives and indicate how they will be achieved:(1) control of the migration of hazardous waste and hazardous waste constituents from the treated area into the groundwater;(2) control of the release of contaminated run-off from the facility into surface water;(3) control of the release of airborne particulate contaminants caused by wind erosion; and(4) compliance with 40 CFR §265.276, concerning the growth of food-chain crops.(b) The owner or operator must consider at least the following factors addressing the closure and post-closure care objectives of subsection (a) of this section:(1) type and amount of hazardous waste and hazardous waste constituents applied to the land treatment facility;(2) the mobility and the expected rate of migration of the hazardous waste and hazardous waste constituents;(3) site location, topography, and surrounding land use, with respect to the potential effects of pollutant migration (e.g., proximity to groundwater, surface water, and drinking water sources);(4) climate, including amount, frequency, and pH or precipitation;(5) geological and soil profiles and surface and subsurface hydrology of the site, and soil characteristics, including cation exchange capacity, total organic carbon, and pH;(6) unsaturated zone monitoring information obtained under 40 CFR §265.278; and(7) type, concentration, and depth of migration of hazardous waste constituents in the soil as compared to their background concentrations.(c) The owner or operator must consider at least the following methods in addressing the closure and post-closure care objectives of subsection (a) of this section:(1) removal of contaminated soils;(2) placement of a final cover, considering:(A) functions of the cover (e.g., infiltration control, erosion and run-off control, and wind erosion control), and(B) characteristics of the cover, including material, final surface contours, thickness, porosity and permeability, slope, length of run of slope, and type of vegetation on the cover;(3) collection and treatment run-off;(4) diversion structures to prevent surface water run-on from entering the treated area; and(5) monitoring of soil, soil-pore water, and groundwater.(d) In addition to the requirements of 40 CFR Part 265; Subpart G, relating to closure and post-closure, §335.118 of this title (relating to Closure Plan; Submission and Approval of Plan) and §335.119 of this title (relating to Post-Closure Plan; Submission and Approval Plan), during the closure period the owner or operator of a land treatment facility must:(1) continue unsaturated zone monitoring in a manner and frequency specified in the closure plan, except that soil pore liquid monitoring may be terminated 90 days after the last application of waste to the treatment zone;(2) maintain the run-on control system required under §335.121(b) of this title (relating to General Operating Requirements (Land Treatment Facilities));(3) maintain the run-off management system required under §335.121(c) of this title; and(4) control wind dispersal of particulate matter which may be subject to wind dispersal.(e) For the purpose of complying with 40 CFR §265.115 concerning certification of closure, when closure is completed, the owner or operator may submit to the executive director certification both by the owner or operator and by an independent licensed professional geoscientist, in lieu of an independent licensed professional engineer, that the facility has been closed in accordance with the specifications in the approved closure plan.(f) In addition to the requirements of 40 CFR §265.117 concerning post-closure care and use of property during the post-closure care period, the owner or operator of a land treatment unit must:(1) continue soil-core monitoring by collecting and analyzing samples in a manner and frequency specified in the post-closure plan;(2) restrict access to the unit as appropriate for its post-closure use;(3) assure that growth of food chain crops complies with 40 CFR §265.276 concerning food chain crops; and(4) control wind dispersal of hazardous waste.</content><note type="source"><p>Source Note: The provisions of this §335.123 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective September 1, 2003, 28 TexReg 6915.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.124"><num value="335.124">§335.124</num><heading>General Operating Requirements (Landfills)</heading><content>(a) The owner or operator must design, construct, operate, and maintain a run-on control system capable of preventing flow onto the active portion of the landfill during peak discharge from at least a 100-year storm.(b) The owner or operator must design, construct, operate, and maintain a run-off management system to collect and control at least the water volume resulting from a 24-hour, 100-year storm.(c) Collection and holding facilities (e.g., tanks or basins) associated with run-on and run-off control systems must be emptied or otherwise managed expeditiously after storms to maintain design capacity of the system.(d) The owner or operator of a landfill containing hazardous waste which is subject to dispersal by wind must cover or otherwise manage the landfill so that wind dispersal of the hazardous waste is controlled.(e) As required by 40 Code of Federal Regulations (CFR) §265.13, the waste analysis plan must include analyses needed to comply with 40 CFR §265.312 (concerning Special Requirements for Ignitable or Reactive Waste) and 40 CFR §265.313 (concerning Special Requirements for Incompatible Wastes). The waste analysis plan must also include analyses needed to comply with §335.125 of this title (relating to Special Requirements for Bulk and Containerized Waste). As required by 40 CFR §265.73 (concerning Operating Record), the owner or operator must place the results of these analyses in the operating record of the facility.</content><note type="source"><p>Source Note: The provisions of this §335.124 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective February 26, 1996, 21 TexReg 1142.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.125"><num value="335.125">§335.125</num><heading>Special Requirements for Bulk and Containerized Waste</heading><content>(a) Effective May 8, 1985, the placement of bulk or non-containerized liquid hazardous waste or hazardous waste containing free liquids (whether or not sorbents have been added) in any landfill is prohibited.(b) A container holding liquid waste or waste containing free liquids must not be placed in a landfill unless:(1) the container is designed to hold liquids or free liquids for use other than storage, such as a capacitor or battery;(2) the container is very small, such as an ampule; or(3) the container is disposed of in accordance with 40 Code of Federal Regulations (CFR) §265.316.(c) To demonstrate the absence or presence of free liquids in either a containerized or a bulk waste, the following test must be used: Method 9095B (Paint Filter Liquids Test) as described in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW-846, as incorporated by reference in 40 CFR §260.11 and in §335.31 of this title (relating to Incorporation of References).(d) The date for compliance with subsection (a) of this section is November 19, 1981. The date for compliance with subsection (b) of this section is March 22, 1982.(e) The placement of any liquid which is not a hazardous waste in a landfill is prohibited unless the owner or operator of such landfill demonstrates to the executive director, or the executive director determines that:(1) the only reasonably available alternative to the placement in such landfill is placement in a landfill or unlined surface impoundment, whether or not permitted or operating under interim status, which contains, or may reasonably be anticipated to contain, hazardous waste; and(2) placement in such owner or operator's landfill will not present a risk of contamination of any underground source of drinking water (as that term is defined in §331.2 of this title (relating to Definitions)).</content><note type="source"><p>Source Note: The provisions of this §335.125 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective February 26, 1996, 21 TexReg 1142; amended to be effective November 20, 1996, 21 TexReg 10983; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.126"><num value="335.126">§335.126</num><heading>Special Requirements for Containers</heading><content>(a) Containers must be crushed flat, shredded, or similarly reduced in volume to the maximum extent practicable before burial in a landfill.(b) Owners or operators must be in compliance with this section by November 19, 1981.</content><note type="source"><p>Source Note: The provisions of this §335.126 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective July 14, 1987, 12 TexReg 2106.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.127"><num value="335.127">§335.127</num><heading>Cost Estimate for Closure</heading><content>In addition to the requirements of 40 Code of Federal Regulations §265.142 (excluding 40 CFR §265.142(a)(2)), the closure cost estimate must be based on the costs to the owner or operator of hiring a third party to close the facility. A third party is a party who is neither a parent nor a subsidiary of the owner or operator (see the definition of parent corporation in 40 CFR §265.141(d)). Notwithstanding other closure costs, such estimate must also include the costs associated with third party removal, shipment off-site, and processing or disposal off-site of the following wastes to an authorized storage, processing, or disposal facility:(1) maximum inventory of wastes in storage and/or processing units, including but not limited to, storage surface impoundments, waste piles, tanks, and containers;(2) wastes generated as a result of closure activities (e.g. decontamination, removal of liquids from surface impoundments, or waste piles);(3) contaminated stormwater; or(4) leachate.</content><note type="source"><p>Source Note: The provision of this §335.127 adopted to be effective July 14, 1987, 12 TexReg 2106; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scE/s335.128"><num value="335.128">§335.128</num><heading>Financial Assurance</heading><content>(a) Before hazardous waste may be stored, processed, or disposed of at a solid waste facility subject to this subchapter, the owner or operator must:(1) establish financial assurance for the amount of the closure cost estimate in a manner that meets the requirements of Chapter 37, Subchapter P of this title (relating to Financial Assurance for Hazardous and Nonhazardous Industrial Solid Waste Facilities), in addition to the requirements specified in §335.112(a)(7) of this title (relating to Standards).(2) establish financial assurance for the amount of the post closure cost estimate in a manner that meets the requirements of Chapter 37, Subchapter P of this title, in addition to the requirements specified in §335.112(a)(7) of this title, if the facility:(A) includes a disposal facility;(B) includes a pile, and/or surface impoundment from which the owner or operator intends to remove the wastes at closure, to the extent that these sections are made applicable to such facilities in §335.112 of this title;(C) includes a tank system that is required under §335.112 of this title to meet the requirements for landfills;(D) includes a containment building that is required under §335.112 of this title to meet the requirements for landfills; or(E) is notified by the executive director of the need for post closure financial assurance for another type of unit.(b) Before hazardous waste may be stored, processed, or disposed of at a solid waste facility or a group of such facilities subject to this subchapter, the owner or operator must establish financial assurance for bodily injury and property damage to third parties caused by sudden accidental occurrences arising from operations of the facility or group of facilities in a manner that meets the requirements of Chapter 37 of this title (relating to Financial Assurance).(c) Before hazardous waste may be stored, processed, or disposed of at a solid waste facility containing a surface impoundment, landfill, land treatment facility, or disposal miscellaneous unit used to manage hazardous waste or a group of such facilities subject to this subchapter, the owner or operator must establish financial assurance for bodily injury and property damage to third parties caused by nonsudden accidental occurrences arising from operations of the facility or group of facilities in a manner that meets the requirements of Chapter 37 of this title.(d) If the executive director determines that there is a significant risk to human health and the environment from nonsudden accidental occurrences resulting from the operations of a hazardous industrial solid waste facility that is not a surface impoundment, landfill, or land treatment facility, the owner or operator may be required to comply with subsection (c) of this section.</content><note type="source"><p>Source Note: The provisions of this §335.128 adopted to be effective March 21, 2000, 25 TexReg 2394.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scF"><num value="F">SUBCHAPTER F</num><heading>PERMITTING STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, OR DISPOSAL FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.151"><num value="335.151">§335.151</num><heading>Purpose, Scope, and Applicability</heading><content>(a) The purpose of this subchapter is to establish minimum standards to define the acceptable management of hazardous waste. These standards are to be applied in the evaluation of an application for a permit to manage hazardous waste, in accordance with Texas Solid Waste Disposal Act, and in the evaluation of an investigation report to implement groundwater protection requirements relating to compliance monitoring and corrective action; and in the evaluation of corrective action measures to be instituted in accordance with §335.167 of this title (relating to Corrective Action for Solid Waste Management Units). For facilities that store, process, or dispose of industrial solid waste, in addition to hazardous waste, nothing herein shall be construed to restrict or abridge the commission's authority to implement the provisions of Texas Water Code, Chapter 26, and §335.4 of this title (relating to General Prohibitions), with respect to those activities.(b) The standards in this subchapter apply to owners and operators of all facilities which process, store, or dispose of hazardous waste, except as specifically provided for in §335.41 of this title (relating to Purpose, Scope, and Applicability).(c) A facility owner or operator who has fully complied with the requirements for interim status, as defined in the Resource Conservation and Recovery Act (RCRA), §3005(e), and §335.2 and §335.43 of this title (relating to Permit Required), must comply with the requirements of Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities) in lieu of the requirements of this subchapter, until final administrative disposition of his permit application is made, except as provided under 40 Code of Federal Regulations (CFR) Part 264, Subpart S.(d) The regulations of this subchapter apply to all owners and operators subject to the requirements of §335.2(m) of this title when the commission issues either a post-closure permit or a post-closure order at the facility. When the commission issues a post-closure order, references in this subchapter to "in the permit" also mean "in the order."(e) The commission may replace all or part of the requirements of 40 CFR Part 264 Subpart G (relating to Closure and Post-Closure), as amended and adopted in §335.152(a)(5) of this title (relating to Standards) and the unit specific standards in §§335.169, 335.172, and 335.174 of this title (relating to Closure and Post-Closure Care (Surface Impoundments); Closure and Post-Closure Care (Land Treatment Units), and Closure and Post-Closure Care (Landfills)) applying to regulated units, with alternative requirements as set out in a permit or order where the commission determines that:(1) a regulated unit is situated among solid waste management units or area of concern, a release has occurred, and both the regulated unit and one or more solid waste management unit(s) or area of concern are likely to have contributed to the release; and(2) it is not necessary to apply the closure requirements of this subchapter (and those referenced herein) because the alternative requirements will be protective of human health and the environment and will satisfy the performance standards of §335.8 of this title (relating to Closure and Remediation) and §335.167 of this title.(f) If a permitted facility obtains an order setting out alternative requirements provided in subsection (e) of this section, then the alternative requirements shall also be referenced in the facility's permit.</content><note type="source"><p>Source Note: The provisions of §335.151 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective July 29, 1992, 17 TexReg 5017; amended to be effective February 22, 1994, 19 TexReg 969; amended to be effective January 30, 2003, 28 TexReg 715; amended to be effective February 21, 2013, 38 TexReg 978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.152"><num value="335.152">§335.152</num><heading>Standards</heading><content>(a) The following regulations contained in 40 Code of Federal Regulations (CFR) Part 264 (including all appendices to Part 264) are adopted by reference as amended in the Federal Register through June 1, 1990 (55 FR 22685) and as further amended and adopted as indicated in each paragraph of this subsection:(1) Subpart B--General Facility Standards (as amended in the Federal Register through November 28, 2016 (81 FR 85732)); in addition, the facilities which are subject to 40 CFR Part 264, Subpart X, are subject to regulation under 40 CFR §264.15(b)(4) and §264.18(b)(1)(ii);(2) Subpart C--Preparedness and Prevention;(3) Subpart D--Contingency Plan and Emergency Procedures (as amended in the Federal Register through March 18, 2010 (75 FR 12989)), except 40 CFR §264.56(d);(4) Subpart E--Manifest System, Recordkeeping and Reporting (as amended in the Federal Register through January 3, 2018 (83 FR 420)), except 40 CFR §264.76 and §264.77; facilities which are subject to 40 CFR Part 264, Subpart X, are subject to 40 CFR §264.73(b)(6);(5) Subpart G--Closure and Post-Closure (as amended in the Federal Register through July 14, 2006 (71 FR 40254)); facilities which are subject to 40 CFR Part 264, Subpart X, are subject to 40 CFR §§264.90(d), 264.111(c), 264.112(a)(2), 264.114, 264.117(a)(1)(i) and (ii), and 264.118(b)(1) and (2)(i) and (ii);(6) Subpart H--Financial Requirements (as amended in the Federal Register through April 4, 2006 (71 FR 16862)); except 40 CFR §§264.140, 264.141, 264.142(a)(2), (b) and (c), 264.143(a) - (h), 264.144(b) and (c), 264.145(a) - (h), 264.146, 264.147(a) - (d), and (f) - (k), and 264.148 - 264.151; and subject to the following limitations: facilities which are subject to 40 CFR Part 264, Subpart X, are subject to 40 CFR§264.142(a) and §264.144(a), and §37.6031(c) of this title (relating to Financial Assurance Requirements for Liability);(7) Subpart I--Use and Management of Containers (as amended in the Federal Register through November 28, 2016 (81 FR 85732));(8) Subpart J--Tank Systems (as amended in the Federal Register through November 28, 2016 (81 FR 85732));(9) Subpart K--Surface Impoundments (as amended in the Federal Register through July 14, 2006 (71 FR 40254)), except 40 CFR §264.221 and §264.228:(A) reference to 40 CFR §264.221 is changed to §335.168 of this title (relating to Design and Operating Requirements (Surface Impoundments));(B) reference to 40 CFR §264.228 is changed to §335.169 of this title (relating to Closure and Post-Closure Care (Surface Impoundments));(10) Subpart L--Waste Piles (as amended in the Federal Register through July 14, 2006 (71 FR 40254)), except 40 CFR §264.251;(11) Subpart M--Land Treatment (as amended in the Federal Register through July 14, 2006 (71 FR 40254)), except 40 CFR §264.273 and §264.280;(12) Subpart N--Landfills (as amended in the Federal Register through March 18, 2010 (75 FR 12989)), except 40 CFR §§264.301, 264.310, 264.314, and 264.315;(13) Subpart O--Incinerators (as amended in the Federal Register through April 8, 2008 (73 FR 18970));(14) Subpart S--Special Provisions for Cleanup (as amended in the Federal Register through March 18, 2010 (75 FR 12989));(15) Subpart W--Drip Pads (as amended in the Federal Register through July 14, 2006 (71 FR 40254));(16) Subpart X--Miscellaneous Units (as amended in the Federal Register through July 14, 2006 (71 FR 40254));(17) Subpart AA--Air Emission Standards for Process Vents (as amended in the Federal Register through November 28, 2016 (81 FR 85732) with the reference to "40 CFR 262.34(a)" replaced with "40 CFR §262.17 as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste)");(18) Subpart BB--Air Emission Standards for Equipment Leaks (as amended in the Federal Register through November 28, 2016 (81 FR 85732) with the reference to "40 CFR 262.34(a)" replaced with "40 CFR §262.17 as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste)");(19) Subpart CC--Air Emission Standards for Tanks, Surface Impoundments, and Containers (as amended in the Federal Register through January 3, 2018 (83 FR 420));(20) Subpart DD--Containment Buildings (as amended in the Federal Register through November 28, 2016 (81 FR 85732));(21) Subpart EE--Hazardous Waste Munitions and Explosives Storage (as amended in the Federal Register through August 1, 2005 (70 FR 44150)); (22) Subpart FF--Fees for the Electronic Hazardous Waste Manifest Program (as amended in the Federal Register through January 3, 2018 (83 FR 420); and(23) the following appendices contained in 40 CFR Part 264:(A) Appendix I--Recordkeeping Instructions (as amended in the Federal Register through March 24, 1994 (59 FR 13891));(B) Appendix IV--Cochron's Approximation to the Behrens-Fisher Students' T-Test; (C) Appendix V--Examples of Potentially Incompatible Waste;(D) Appendix VI--Political Jurisdictions in Which Compliance With §264.18(a) Must Be Demonstrated; and(E) Appendix IX--Ground-Water Monitoring List (as amended in the Federal Register through June 13, 1997 (62 FR 32451)).(b) The provisions of 40 CFR §264.18(b) are applicable to owners and operators of hazardous waste management facilities, for which a permit is being sought, which are not subject to the requirements of §§335.201 - 335.206 of this title (relating to Purpose, Scope, and Applicability; Definitions; Site Selection to Protect Groundwater or Surface Water; Unsuitable Site Characteristics; Prohibition of Permit Issuance; and Petitions for Rulemaking). (c) Except in 40 CFR §264.71 adopted under subsection (a)(4) of this section and 40 CFR Part 264, Subpart FF adopted under subsection (a)(22) of this section, the regulations of the United States Environmental Protection Agency (EPA) that are adopted by reference in this section are adopted subject to the following changes.(1) The term "regional administrator" is changed to the "executive director" of the Texas Commission on Environmental Quality or to the commission, consistent with the organization of the commission as set out in Texas Water Code, Chapter 5, Subchapter B.(2) The term "treatment" is changed to "processing."(3) Reference to Resource Conservation and Recovery Act, §3008(h) is changed to Texas Water Code, §7.031(c) - (e) (Corrective Action Relating to Hazardous Waste).(4) Reference to:(A) 40 CFR §260.10 is changed to §335.1 of this title (relating to Definitions);(B) 40 CFR §264.1 is changed to §335.151 of this title (relating to Purpose, Scope, and Applicability);(C) 40 CFR §264.280 is changed to §335.172 of this title (relating to Closure and Post-Closure Care (Land Treatment Units));(D) 40 CFR §264.90 is changed to §335.156 of this title (relating to Applicability of Groundwater Monitoring and Response);(E) 40 CFR §264.101 is changed to §335.167 of this title (relating to Corrective Action for Solid Waste Management Units);(F) 40 CFR §264.310 is changed to §335.174 of this title (relating to Closure and Post-Closure Care (Landfills));(G) 40 CFR §270.41 is changed to §305.62 of this title (relating to Amendments); and(H) 40 CFR §270.42 is changed to §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee).(5) 40 CFR Parts 260 - 270 means the commission's rules including, but not limited to, Chapters 50, 305, and 335 of this title (relating to Action on Applications and Other Authorizations; Consolidated Permits; and Industrial Solid Waste and Municipal Hazardous Waste), as applicable.(6) Reference to 40 CFR Part 264, Subpart D is changed to §335.152(a)(3) of this title (relating to Standards) and §335.153 of this title (relating to Reporting of Emergency Situations by Emergency Coordinator).(7) References to 40 CFR §264.76 and §264.77 are changed to §335.15(3) of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities), and §335.155 of this title (relating to Additional Reports), respectively.(8) Reference to 40 CFR Part 264, Subpart F is changed to §335.156 of this title, §335.157 of this title (relating to Required Programs), §335.158 of this title (relating to Groundwater Protection Standard), §335.159 of this title (relating to Hazardous Constituents), §335.160 of this title (relating to Concentration Limits), §335.161 of this title (relating to Point of Compliance), §335.162 of this title (relating to Compliance Period), §335.163 of this title (relating to General Groundwater Monitoring Requirements), §335.164 of this title (relating to Detection Monitoring Program), §335.165 of this title (relating to Compliance Monitoring Program), §335.166 of this title (relating to Corrective Action Program), and §335.167 of this title.(9) Reference to 40 CFR Part 265, Subpart F is changed to include §335.116 of this title (relating to Applicability of Groundwater Monitoring Requirements) and §335.117 of this title (relating to Recordkeeping and Reporting), in addition to the reference to 40 CFR Part 265, Subpart F, except §265.90 and §265.94. (10) Reference to the EPA is changed to the Texas Commission on Environmental Quality.(11) Reference to qualified professional engineer is changed to Texas licensed professional engineer.</content><note type="source"><p>Source Note: The provisions of this §335.152 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective September 1, 1986, 11 TexReg 3696; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective July 27, 1988, 13 TexReg 3515; amended to be effective August 4, 1989, 14 TexReg 3532; amended to be effective October 29, 1990, 15 TexReg 6017; amended to be effective December 13, 1991, 16 TexReg 6936; amended to be effective July 29, 1992, 17 TexReg 5017; amended to be effective November 23, 1993, 18 TexReg 8218;amended to be effective February 22, 1994, 19 TexReg 969; amended to be effective February 26, 1996, 21 TexReg 1142; amended to be effective November 20, 1996, 21 TexReg 10983; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective May 20, 1999, 24 TexReg 3726; amended to be effective October 7, 1999, 24 TexReg 8562; amended to be effective March 21, 2000, 25 TexReg 2394; amended to be effective April 12, 2001, 26 TexReg 2741; amended to be effective November 18, 2001, 26 TexReg 9153; amended to be effective January 30, 2003, 28 TexReg 715; amended to be effective August 31, 2006, 31 TexReg 6755; amended to be effective August 16, 2007, 32 TexReg 5010; amended to be effective October 29, 2009, 34 TexReg 7321; amended to be effective February 21, 2013, 38 TexReg 978; amended to be effective June 16, 2016, 41 TexReg 4259; amended to be effective June 11, 2020,45 TexReg 3780; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.153"><num value="335.153">§335.153</num><heading>Reporting of Emergency Situations by Emergency Coordinator</heading><content>If the emergency coordinator determines that the facility has had a release, fire, or explosion which could threaten human health, or the environment outside the facility, he must report his findings as follows.(1) If his assessment indicates that evacuation of local areas may be advisable, he must immediately notify appropriate local authorities. He must be available to help appropriate local officials decide whether local areas should be evacuated.(2) He must immediately notify the commission according to procedures set out in the State of Texas oil and hazardous substances spill contingency plan. The report must include:(A) name and telephone number of reporter;(B) name and address of facility;(C) time and place of incident (e.g., release, fire);(D) name and quantity of material(s) involved, to the extent known;(E) the extent of injuries, if any; and(F) the possible hazards to human health, or the environment, outside the facility.</content><note type="source"><p>Source Note: The provisions of this §335.153 adopted to be effective May 28, 1986, 11 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.155"><num value="335.155">§335.155</num><heading>Additional Reports</heading><content>In addition to submitting the waste reports described in §335.15 of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities), the owner or operator must also report to the executive director:(1) releases, fires, and explosions as specified in 40 Code of Federal Regulations (CFR) §264.56(i);(2) facility closure as specified in 40 CFR §264.115;(3) as otherwise required by 40 CFR Part 264, Subparts F, K - N, X, AA, BB, and CC.</content><note type="source"><p>Source Note: The provisions of this §335.155 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective August 4, 1989, 14 TexReg 3532; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective May 20, 1999, 24 TexReg 3726; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective February 21, 2013, 38 TexReg 978; amended to be effective January 8, 2015, 40 TexReg 77.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.156"><num value="335.156">§335.156</num><heading>Applicability of Groundwater Monitoring and Response</heading><content>(a) Except as provided in subsection (b) of this section, the rules pertaining to groundwater monitoring and response apply to owners and operators of facilities that process, store, or dispose of hazardous waste.(1) The owner or operator must satisfy those requirements of paragraph (2) or (3) of this subsection for all wastes (or constituents thereof) contained in any such waste management unit at the facility, regardless of the time at which waste was placed in the units.(2) Except as provided in paragraph (3) of this subsection, all solid waste management units must comply with the requirements in §335.167 of this title (relating to Corrective Action for Solid Waste Management Units). A surface impoundment, waste pile, land treatment unit, or landfill that receives hazardous waste after July 26, 1982, (hereinafter referred to as a regulated unit) must comply with the requirements of §§335.157 - 335.166 of this title (relating to Required Program; Groundwater Protection Standard; Hazardous Constituents; Concentration Limits; Point of Compliance; Compliance Period; General Groundwater Monitoring Requirements; Detection Monitoring Program; Compliance Monitoring Program; and Corrective Action Program) in lieu of §335.167 of this title for purposes of detecting, characterizing, and responding to releases to the uppermost aquifer. The financial responsibility requirements of §335.167 of this title apply to regulated units.(3) The commission may replace all or part of the requirements of §§335.157 - 335.166 of this title with alternative requirements for groundwater monitoring and corrective action for releases to groundwater set out in the permit or in a post-closure order where the commission determines that:(A) a regulated unit is situated among solid waste management units or area of concern, a release has occurred, and both the regulated unit and one or more solid waste management unit(s) or area of concern are likely to have contributed to the release; and(B) it is not necessary to apply the groundwater monitoring and corrective action requirements of §§335.157 - 335.166 of this title because the alternative requirements will be protective of human health and the environment.(4) If a permitted facility obtains an order setting out alternative requirements provided in §335.151(e) of this title (relating to Purpose, Scope, and Applicability), then the alternative requirements shall also be referenced in the facility's permit.(b) The owner or operator's regulated unit or units are not subject to regulation for releases into the uppermost aquifer under this section and §§335.157 - 335.166 of this title if:(1) he is exempted under 40 Code of Federal Regulations (CFR) §264.1;(2) he operates a unit which the commission finds:(A) is an engineered structure;(B) does not receive or contain liquid waste or waste containing free liquids;(C) is designed and operated to exclude liquid, precipitation, and other run-on and run-off;(D) has both inner and outer layer of containment enclosing the waste;(E) has a leak detection system built into each containment layer for which continuing operation and maintenance will be provided during the active life of the unit and the closure and post-closure care periods; and(F) to a reasonable degree of certainty, will not allow hazardous constituents to migrate beyond the outer containment layer prior to the end of the post-closure care period.(3) the commission finds, in accordance with 40 CFR §264.280(d), that the treatment zone of a land treatment unit that qualifies as a regulated unit does not contain levels of hazardous constituents that are above backgrounds levels of those constituents by an amount that is statistically significant, and if an unsaturated zone monitoring program meeting the requirements of 40 CFR §264.278 has not shown a statistically significant increase in hazardous constituents below the treatment zone during the operating life of the unit. An exemption under this paragraph can only relieve an owner or operator of responsibility to meet the requirements of this subchapter relating to groundwater monitoring and response during the post-closure care period;(4) the commission finds that there is no potential for migration of liquid from a regulated unit to the uppermost aquifer during the active life of the regulated unit (including the closure period) and the post-closure care period specified under 40 CFR §264.117. This demonstration shall be certified by a licensed professional geoscientist or geotechnical engineer. In order to provide an adequate margin of safety in the prediction of potential migration of liquid, the owner or operator shall base any predictions on assumptions that maximize the rate of liquid migration; or(5) he designs and operates a pile in compliance with 40 CFR §264.250(c).(c) Sections 335.157 - 335.166 of this title apply during the active life of the regulated unit (including the closure period). After closure of the regulated unit, these sections:(1) do not apply if all waste, waste residues, contaminated containment system components, and contaminated subsoils are removed or decontaminated at closure;(2) apply during the post-closure care period under 40 CFR §264.117 if the owner or operator is conducting a detection monitoring program under §335.164 of this title; or(3) apply during the compliance period under §335.162 of this title if the owner or operator is conducting a compliance monitoring program under §335.165 of this title or a corrective action program under §335.166 of this title.</content><note type="source"><p>Source Note: The provisions of this §335.156 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective January 30, 2003, 28 TexReg 715; amended to be effective September 1, 2003, 28 TexReg 6915.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.157"><num value="335.157">§335.157</num><heading>Required Programs</heading><content>(a) Owners and operators subject to §335.156 of this title (relating to Applicability of Groundwater Monitoring and Response); this section, and §§335.158-335.166 of this title (relating to Groundwater Protection Standard; Hazardous Constituents; Concentration Limits; Point of Compliance; Compliance Period; General Groundwater Monitoring Requirements; Detection Monitoring Program; Compliance Monitoring Program; and Corrective Action Program) must conduct a monitoring and response program as follows.(1) Whenever hazardous constituents under §335.159 of this title (relating to Hazardous Constituents) from a regulated unit are detected at the compliance point under §335.161 of this title (relating to Point of Compliance), the owner or operator must institute a compliance monitoring program under §335.165 of this title (relating to Compliance Monitoring Program). "Detection" is defined as statistically significant evidence of contamination as described in §335.164(6) of this title (relating to Detection Monitoring Program).(2) Whenever the groundwater protection standard under §335.158 of this title (relating to Groundwater Protection Standard) is exceeded, the owner or operator must institute a corrective action program under §335.166 of this title (relating to Corrective Action Program). "Exceeded" is defined as statistically significant evidence of increased contamination as described in §335.165(4) of this title (relating to Compliance Monitoring Program).(3) Whenever hazardous constituents under §335.159 of this title (relating to Hazardous Constituents) from a regulated unit exceed concentration limits under §335.160 of this title (relating to Concentration Limits) in groundwater between the compliance point under §335.161 of this title (relating to Point of Compliance) and the downgradient facility property boundary, the owner or operator must institute a corrective action program under §335.166 of this title (relating to Corrective Action Program).(4) In all other cases, the owner or operator must institute a detection monitoring program under §335.164 of this title (relating to Detection Monitoring Program).(b) The commission will specify in the facility permit or in a compliance plan the specific elements of the monitoring and response program. The commission may include one or more of the programs identified in subsection (a) of this section in the facility permit or in a compliance plan as may be necessary to protect human health and the environment and will specify the circumstances under which each of the programs will be required. The commission will establish the programs specified in subsection (a)(1)-(3) of this section in a compliance plan. If the owner or operator is not otherwise subject to compliance monitoring, the detection monitoring program will be established in the facility permit. In deciding whether to require the owner or operator to be prepared to institute a particular program, the commission will consider the potential adverse effects on human health and the environment that might occur before final administrative action to incorporate such a program could be taken.</content><note type="source"><p>Source Note: The provisions of this §335.157 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective October 29, 1990, 15 TexReg 6017.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.158"><num value="335.158">§335.158</num><heading>Groundwater Protection Standard</heading><content>The owner or operator must comply with conditions specified in the facility permit that are designed to ensure that hazardous constituents under §335.159 of this title (relating to Hazardous Constituents) which have been detected in the groundwater from a regulated unit do not exceed the concentration limits under §335.160 of this title (relating to Concentration Limits) in the uppermost aquifer underlying the waste management area beyond the point of compliance during the compliance period under §335.162 of this title (relating to Compliance Period). The commission will establish this groundwater protection standard in the compliance plan when hazardous constituents have been detected in the groundwater from a regulated unit.</content><note type="source"><p>Source Note: The provisions of this §335.158 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective October 29, 1990, 15 TexReg 6017.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.159"><num value="335.159">§335.159</num><heading>Hazardous Constituents</heading><content>(a) The commission will specify in the compliance plan the hazardous constituents to which the groundwater protection standard of §335.158 of this title (relating to Groundwater Protection Standard) applies. Hazardous constituents are constituents identified in Appendix VIII of 40 Code of Federal Regulations Part 261 that have been detected in groundwater in the uppermost aquifer underlying a regulated unit and that are reasonably expected to be in or derived from waste contained in a regulated unit, unless the commission has excluded them under subsection (b) of this section.(b) The commission will exclude an Appendix VIII constituent from the list of hazardous constituents specified in the compliance plan if it finds that the constituent is not capable of posing a substantial present or potential hazard to human health or the environment. In deciding whether to grant an exemption, the commission will consider the following:(1) potentially adverse effects on groundwater quality, considering:(A) the physical and chemical characteristics of the waste in the regulated unit, including its potential for migration;(B) the hydrogeological characteristics of the facility and surrounding land;(C) the quantity of groundwater and the direction of groundwater follows;(D) the proximity and withdrawal rates of groundwater users;(E) the current and future uses of groundwater in the area;(F) the existing quality of groundwater, including other sources of contamination and their cumulative impact on the groundwater quality;(G) the potential for health risks caused by human exposure to waste constituents;(H) the potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents;(I) the persistence and permanence of the potentially adverse effects; and(2) potentially adverse effects on hydraulically-connected surface water quality, considering:(A) the volume and physical and chemical characteristics of the waste in the regulated unit;(B) the hydrogeological characteristics of the facility and surrounding land;(C) the quantity and quality of groundwater, and the direction of groundwater flow;(D) the patterns of rainfall in the region;(E) the proximity of the regulated unit to surface waters;(F) the current and future uses of surface waters in the area and any water quality standards established for those surface waters;(G) the existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality;(H) the potential for health risks caused by human exposure to waste constituents;(I) the potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and(J) the persistence and permanence of the potentially adverse effects.(c) In making any determination under subsection (b) of this section about the use of groundwater in the area around the facility, the commission will consider any identification of underground sources of drinking water and exempted aquifers made under §331.13 of this title (relating to Exempted Aquifer).</content><note type="source"><p>Source Note: The provisions of this §335.159 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective May 20, 1999, 24 TexReg 3726.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.160"><num value="335.160">§335.160</num><heading>Concentration Limits</heading><content>(a) The commission will specify in the compliance plan concentration limits in the groundwater for hazardous constituents established under §335.159 of this title (relating to Hazardous Constituents). The concentration of a hazardous constituent:(1) must not exceed the background level of that constituent in the groundwater at the time that limit is specified in the plan;(2) for any of the constituents listed in Table 1 of subsection (b)(1) of this section, must not exceed the respective value given in that table if the background level of the constituent is below the value given in Table 1; or(3) must not exceed an alternate limit established by the commission under subsection (b) of this section.(b) The commission will establish an alternate concentration limit for a hazardous constituent if it finds that the constituent will not pose a substantial present or potential hazard to human health or the environment as long as the alternate concentration limit is not exceeded. In establishing alternate concentration limits, the commission will consider the following:(1) potentially adverse effects on groundwater quality, considering the maximum concentration of constituents for groundwater protection described in the following Table 1 and:(c) In making any determination under subsection (b) of this section about the use of groundwater in the area around the facility, the commission will consider any identification of underground sources of drinking water and exempted aquifers made under §331.13 of this title (relating to Exempted Aquifer).</content><note type="source"><p>Source Note: The provisions of this §335.160 adopted to be effective May 28, 1986, 11 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.161"><num value="335.161">§335.161</num><heading>Point of Compliance</heading><content>(a) The commission will specify in the facility permit the point of compliance at which the groundwater protection standard of §335.158 of this title (relating to Groundwater Protection Standard) applies and at which monitoring must be conducted. The point of compliance is a vertical surface located at the hydraulically downgradient limit of the waste management area that extends down into the uppermost aquifer underlying the regulated units.(b) The waste management area is the limit projected in the horizontal plane of the area on which waste will be placed during the active life of a regulated unit.(1) The waste management area includes horizontal space taken up by any liner, dike, or other barrier designed to contain waste in a regulated unit.(2) If the facility contains more than one regulated unit, the waste management area may be described in the following manner:(A) by an imaginary line circumscribing the several regulated units;(B) by an imaginary line circumscribing geographically proximate regulated units;(C) by an imaginary line circumscribing individually regulated units; or(D) a combination of subparagraphs (B) and (C) of this paragraph.</content><note type="source"><p>Source Note: The provisions of this §335.161 adopted to be effective May 28, 1986, 11 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.162"><num value="335.162">§335.162</num><heading>Compliance Period</heading><content>(a) The commission will specify in the compliance plan the compliance period during which the groundwater protection standard of §335.158 of this title (relating to Groundwater Protection Standards) applies. The compliance period is the number of years equal to the active life of the waste management area (including any waste management activity prior to permitting and the closure period).(b) The compliance period begins when the owner or operator initiates a compliance monitoring program meeting the requirements of §335.165 of this title (relating to Compliance Monitoring Program).(c) If the owner or operator is engaged in a corrective action program at the end of the compliance period specified in subsection (a) of this section, the compliance period is extended until the owner or operator can demonstrate that the groundwater protection standard of §335.158 of this title (relating to Groundwater Protection Standard) has not been exceeded for a period of three consecutive years.</content><note type="source"><p>Source Note: The provisions of this §335.162 adopted to be effective May 28, 1986, 11 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.163"><num value="335.163">§335.163</num><heading>General Groundwater Monitoring Requirements</heading><content>If a facility contains more than one waste management area, separate groundwater monitoring systems must be installed. The owner or operator must comply with the following requirements for any groundwater monitoring program developed to satisfy §§335.164 - 335.166 of this title (relating to Detection Monitoring Program; Compliance Monitoring Program; and Corrective Action Program).(1) The groundwater monitoring system must consist of a sufficient number of wells, installed at appropriate locations and depths to yield groundwater samples from the uppermost aquifer that:(A) represent the quality of background groundwater that has not been affected by leakage from a regulated unit:(i) a determination of background groundwater quality may include sampling of wells that are not hydraulically upgradient of the waste management area where hydrogeologic conditions do not allow the owner or operator to determine what wells are hydraulically upgradient; and(ii) sampling at other wells will provide an indication of background groundwater quality that is representative or more representative than that provided by the upgradient wells;(B) represent the quality of groundwater passing the point of compliance; and(C) allow for detection of contamination when hazardous waste or hazardous constituents have migrated from the waste management area to the uppermost aquifer.(2) If a waste management area contains more than one regulated unit, separate groundwater monitoring systems are not required for each regulated unit, provided that provisions for sampling the groundwater in the uppermost aquifer will enable detection and measurement at the compliance point of hazardous constituents from the regulated units that have entered the groundwater in the uppermost aquifer.(3) All monitoring wells must be cased in a manner that maintains the integrity of the monitoring-well bore hole. This casing must be screened or perforated and packed with gravel or sand, where necessary, to enable collection of groundwater samples. The annular space (i.e., the space between the bore hole and well casing) above the sampling depth must be sealed to prevent contamination of samples and the groundwater.(4) The groundwater monitoring program must include consistent sampling and analysis procedures that are designed to ensure monitoring results that provide a reliable indication of groundwater quality below the waste management area. At a minimum, the program must include procedures and techniques for:(A) sample collection;(B) sample preservation and shipment;(C) analytical procedures; and(D) chain of custody control.(5) The groundwater monitoring program must include sampling and analytical methods that are appropriate for groundwater sampling and that accurately measure hazardous constituents in groundwater samples.(6) The groundwater monitoring program must include a determination of the groundwater surface elevation each time groundwater is sampled.(7) In detection monitoring or where appropriate in compliance monitoring, data on each hazardous constituent specified in the permit will be collected from background wells and wells at the compliance point(s). The number and kinds of samples collected to establish background shall be appropriate for the form of statistical test employed and shall follow generally accepted statistical principles. The sample size shall be as large as necessary to ensure with reasonable confidence that a contaminant released to groundwater from a facility will be detected. The owner or operator will determine an appropriate sampling procedure and interval for each hazardous constituent listed in the facility permit. This sampling procedure shall be:(A) a sequence of at least four samples, taken at an interval that assures, to the greatest extent technically feasible, that an independent sample is obtained, by reference to the uppermost aquifer's effective porosity, hydraulic conductivity, and hydraulic gradient, and the fate and transport characteristics of the potential contaminants; or(B) an alternate sampling procedure adopted by the owner or operator of the facility and approved by the commission.(8) The owner or operator will specify one of the following statistical methods to be used in evaluating groundwater monitoring data for each hazardous constituent which, upon approval by the commission, will be specified in the facility's permit on a unit by unit basis. The statistical test chosen shall be conducted separately for each hazardous constituent in each well. Where practical quantification limits (PQLs) are used in any of the following statistical procedures to comply with paragraph (9)(E) of this section, the PQL must be adopted by the owner or operator and approved by the executive director. Use of any of the following statistical methods must be protective of human health and the environment and must comply with the performance standards outlined in paragraph (9) of this section:(A) a parametric analysis of variance (ANOVA) followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well's mean and the background mean levels for each constituent;(B) an ANOVA based on ranks followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well's median and the background median levels for each constituent;(C) a tolerance or prediction interval procedure in which an interval for each constituent is established from the distribution of the background data, and the level of each constituent in each compliance well is compared to the upper tolerance or prediction limit;(D) a control chart approach that gives control limits for each constituent;(E) another statistical test method submitted by the owner or operator and approved by the executive director.(9) Any statistical method chosen under paragraph (8) of this section for specification in the unit permit shall comply with the following performance standards, as appropriate.(A) The statistical method used to evaluate groundwater monitoring data shall be appropriate for the distribution of chemical parameters or hazardous constituents. If the distribution of the chemical parameters or hazardous constituents is shown by the owner or operator to be inappropriate for a normal theory test, then the data should be transformed or a distribution-free theory test should be used. If the distributions for the constituents differ, more than one statistical method may be needed.(B) If an individual well comparison procedure is used to compare an individual compliance well constituent concentration with background constituent concentrations or a groundwater protection standard, the test shall be done at a Type I error level no less than 0.01 for each testing period. If a multiple comparisons procedure is used, the Type I experiment wise error rate for each testing period shall be no less than 0.05; however, the Type I error of no less than 0.01 for individual well comparisons must be maintained. This performance standard does not apply to tolerance intervals, prediction intervals, or control charts.(C) If a control chart approach is used to evaluate groundwater monitoring data, the specific type of control chart and its associated parameter values shall be adopted by the owner or operator and approved by the commission if it finds it to be protective of human health and the environment.(D) If a tolerance interval or a prediction interval is used to evaluate groundwater monitoring data, the levels of confidence and, for tolerance intervals, the percentage of the population that the interval must contain, shall be adopted by the owner or operator and approved by the commission if it finds these parameters to be protective of human health and the environment. These parameters will be determined after considering the number of samples in the background data base, the data distribution, and the range of the concentration values for each constituent of concern.(E) The statistical method shall account for data below the limit of detection with one or more statistical procedures that are protective of human health and the environment. Any PQL approved by the executive director under paragraph (8) of this section that is used in the statistical method shall be the lowest concentration level that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions that are available to the facility.(F) If necessary, the statistical method shall include procedures to control or correct for seasonal and spatial variability as well as temporal correlation in the data.(10) Groundwater monitoring data collected in accordance with paragraph (7) of this section including actual levels of constituents must be maintained in the facility operating record. The commission will specify in the permit when the data must be submitted for review.</content><note type="source"><p>Source Note: The provisions of this §335.163 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective October 29, 1990, 15 TexReg 6017; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.164"><num value="335.164">§335.164</num><heading>Detection Monitoring Program</heading><content>An owner or operator required to establish a detection monitoring program must, at a minimum, discharge the following responsibilities:(1) The owner or operator must monitor for indicator parameters (e.g., specific conductance, total organic carbon, or total organic halogen), waste constituents, or reaction products that provide a reliable indication of the presence of hazardous constituents in groundwater. The commission will specify the parameters or constituents to be monitored in the facility permit, after considering the following factors:(A) the types, quantities, and concentrations of constituents in wastes managed at the regulated unit;(B) the mobility, stability, and persistence of waste constituents or their reaction products in the unsaturated zone beneath the waste management area;(C) the detectability of indicator parameters, waste constituents, and reaction products in groundwater; and(D) the concentrations or values and coefficients of variation of adopted monitoring parameters or constituents in the groundwater background.(2) The owner or operator must install a groundwater monitoring system at the compliance point as specified under §335.161 of this title (relating to Point of Compliance). The groundwater monitoring system must comply with §335.163(1)(B), (2), and (3) of this title (relating to General Groundwater Monitoring Requirements).(3) The owner or operator must conduct a groundwater monitoring program for each chemical parameter and hazardous constituent specified in its permit pursuant to paragraph (1) of this section in accordance with §335.163(7) of this title. The owner or operator must maintain a record of groundwater analytical data as measured and in a form necessary for the determination of statistical significance under §335.163(8) of this title.(A) The owner or operator must comply with §335.163(7) of this title in developing the data base used to determine background values.(B) The owner or operator must express background values in a form necessary for the determination of statistically significant increases under §335.163(8) of this title.(C) In taking samples used in the determination of background values, the owner or operator must use a groundwater monitoring system that complies with §335.163(1)(A), (2), and (3) of this title.(4) The commission will specify the frequencies for collecting samples and conducting statistical tests to determine whether there is statistically significant evidence of contamination for any parameter or hazardous constituent specified in the permit under paragraph (1) of this section in accordance with §335.163(7) of this title.(5) The owner or operator must determine the groundwater flow rate and direction in the uppermost aquifer at least annually.(6) The owner or operator must determine whether there is statistically significant evidence of contamination for any chemical parameter or hazardous constituent specified in the permit pursuant to paragraph (1) of this section at a frequency specified under paragraph (4) of this section.(A) In determining whether statistically significant evidence of contamination exists, the owner or operator must use the method(s) specified in the permit under §335.163(8) of this title. These method(s) must compare data collected at the compliance point(s) to the background groundwater quality data.(B) The owner or operator must determine whether there is statistically significant evidence of contamination at each monitoring well at the compliance point within a reasonable period of time after completion of sampling. The commission will specify in the facility permit what period of time is reasonable, after considering the complexity of the statistical test and the availability of laboratory facilities to perform the analysis of groundwater samples.(7) If the owner or operator determines pursuant to paragraph (6) of this section that there is statistically significant evidence of contamination for chemical parameters or hazardous constituents specified pursuant to paragraph (1) of this section at any monitoring well at the compliance point, he must:(A) notify the executive director of this finding in writing within seven days. The notification must indicate what chemical parameters or hazardous constituents have shown statistically significant evidence of contamination;(B) immediately sample the groundwater in all monitoring wells that exhibit statistically significant evidence of contamination and determine whether constituents in the list of Appendix IX of 40 Code of Federal Regulations Part 264 are present, and if so, in what concentration. However, the executive director, on a discretionary basis, may allow sampling for a site-specific subset of constituents from the Appendix IX list and other representative/related waste constituents;(C) For any Appendix IX compounds found in the analysis pursuant to subparagraph (B) of this paragraph, the owner or operator may resample within one month or an alternative site-specific schedule approved by the executive director and repeat the analysis for those compounds detected. If the results of the second analysis confirm the initial results, then these constituents will form the basis for compliance monitoring. If the owner or operator does not resample for the compounds found in subparagraph (B) of this paragraph, the hazardous constituents found during this initial Appendix IX analysis will form the basis for compliance monitoring.(D) within 90 days, submit to the executive director an application for a permit amendment or modification to establish a compliance monitoring program meeting the requirements of §335.165 of this title (relating to Compliance Monitoring Program). The application must include the following information:(i) an identification of the concentration of any Appendix IX constituent detected in the groundwater at each monitoring well that exhibits statistically significant evidence of contamination at the compliance point;(ii) any adopted changes to the groundwater monitoring system at the facility necessary to meet the requirements of §335.165 of this title;(iii) any adopted additions or changes to the monitoring frequency, sampling and analysis procedures or methods, or statistical methods used at the facility necessary to meet the requirements of §335.165 of this title; and(iv) for each hazardous constituent detected at the compliance point, a adopted concentration limit under §335.160(a)(1) or (2) of this title (relating to Concentration Limits), or a notice of intent to seek an alternate concentration limit under §335.160(b) of this title;(E) within 180 days, submit to the executive director:(i) all data necessary to justify an alternate concentration limit sought under §335.160(b) of this title;(ii) an engineering feasibility plan for a corrective action program necessary to meet the requirements of §335.166 of this title (relating to Corrective Action Program), unless:(I) all hazardous constituents identified under subparagraph (b) of this paragraph are listed in Table 1 of §335.160 of this title and their concentrations do not exceed the respective values given in that table; or(II) the owner or operator has sought an alternate concentration limit under §335.160(b) of this title for every hazardous constituent identified under subparagraph (B) of this paragraph.(F) if the owner or operator determines, pursuant to paragraph (6) of this section, that there is a statistically significant difference for chemical parameters or hazardous constituents specified pursuant to paragraph (1) of this section at any monitoring well at the compliance point, he or she may demonstrate that a source other than a regulated unit caused the contamination or that the detection is an artifact caused by an error in sampling, analysis, or statistical evaluation or natural variation in the groundwater. The owner operator may make a demonstration under this paragraph in addition to, or in lieu of, submitting a permit amendment or modification application under subparagraph (D) of this paragraph; however, the owner or operator is not relieved of the requirement to submit a permit amendment or modification application within the time specified in subparagraph (D) of this paragraph unless the demonstration made under this paragraph successfully shows that a source other than a regulated unit caused the increase, or that the increase resulted from error in sampling, analysis, or evaluation. In making a demonstration under this paragraph, the owner or operator must:(i) notify the executive director in writing within seven days of determining statistically significant evidence of contamination at the compliance point that he intends to make a demonstration under this paragraph;(ii) within 90 days, submit a report to the executive director which demonstrates that a source other than a regulated unit caused the contamination or that the contamination resulted from error in sampling, analysis, or evaluation;(iii) within 90 days, submit to the executive director an application for a permit amendment or modification to make any appropriate changes to the detection monitoring program at the facility; and(iv) continue to monitor in accordance with the detection monitoring program established under this section.(8) If the owner or operator determines that the detection monitoring program no longer satisfies the requirements of this section, he must, within 90 days, submit an application for a permit amendment or modification to make any appropriate changes to the program.</content><note type="source"><p>Source Note: The provisions of this §335.164 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective August 4, 1989, 14 TexReg 3532; amended to be effective October 29, 1990, 15 TexReg 6017; amended to be effective March 1, 1996, 21 TexReg 1425; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.165"><num value="335.165">§335.165</num><heading>Compliance Monitoring Program</heading><content>An owner or operator required to establish a compliance monitoring program must, at a minimum, discharge the following responsibilities.(1) The owner or operator must monitor the groundwater to determine whether regulated units are in compliance with the groundwater protection standard under §335.158 of this title (relating to Groundwater Protection Standard). The commission will specify the groundwater protection standard in the compliance plan, including:(A) a list of the hazardous constituents identified under §335.159 of this title (relating to Hazardous Constituents);(B) concentration limits under §335.160 of this title (relating to Concentration Limits) for each of those hazardous constituents;(C) the compliance point under §335.161 of this title (relating to Point of Compliance); and(D) the compliance period under §335.162 of this title (relating to Compliance Period).(2) The owner or operator must install a groundwater monitoring system at the compliance point as specified under §335.161 of this title. The groundwater monitoring system must comply with §335.163(1)(B), (2), and (3) of this title (relating to General Groundwater Monitoring Requirements).(3) The commission will specify the sampling procedures and statistical methods appropriate for the constituents at the facility, consistent with §335.163(7) and (8) of this title.(A) The owner or operator must conduct a sampling program for each chemical parameter or hazardous constituent in accordance with §335.163(7) of this title.(B) The owner or operator must record groundwater analytical data as measured by and in a form necessary for the determination of statistical significance under §335.163(8) of this title for the compliance period of the facility.(4) The owner or operator must determine whether there is statistically significant evidence of increased contamination for any chemical parameter or hazardous constituent specified in the permit, pursuant to paragraph (1) of this section, at a frequency specified under paragraph (6) under this section.(A) In determining whether statistically significant evidence of increased contamination exists, the owner or operator must use the method(s) specified in the permit under §335.163(8) of this title. The method(s) must compare data collected at the compliance point(s) to a concentration limit developed in accordance with §335.163 of this title.(B) The owner or operator must determine whether there is statistically significant evidence of increased contamination at each monitoring well at the compliance point within a reasonable time period after completion of sampling. The commission will specify that time period in the facility permit after considering the complexity of the statistical test and the availability of laboratory facilities to perform the analysis of groundwater samples.(5) The owner or operator must determine the groundwater flow rate and direction in the uppermost aquifer at least annually.(6) The commission will specify the frequencies for collecting samples and conducting statistical tests to determine statistically significant evidence of increased contamination in accordance with §335.163(7) of this title.(7) Annually, the owner or operator must determine whether additional hazardous constituents from Appendix IX of 40 Code of Federal Regulations (CFR) Part 264, which could possibly be present but are not on the detection monitoring list in the permit, are actually present in the uppermost aquifer and, if so, at what concentration, pursuant to procedures in paragraph (6) of this section. To accomplish this, the owner or operator must consult with the executive director to determine on a case-by-case basis:(A) Which sample collection event during the year will involve enhanced sampling;(B) The number of monitoring wells at the compliance point to undergo enhanced sampling;(C) The number of samples to be collected from each of these monitoring wells; and(D) The specific constituents from Appendix IX of 40 CFR Part 264 for which these samples must be analyzed.(8) If the enhanced sampling event indicates that Appendix IX of 40 CFR Part 264 constituents are present in the groundwater that are not already identified in the permit as monitoring constituents, the owner or operator may resample within one month or at an alternative site-specific schedule approved by the executive director, and repeat the analysis.(9) If the second analysis confirms the presence of new constituents, the owner or operator must report the concentration of these additional constituents to the executive director within seven days after the completion of the second analysis and add them to the monitoring list.(10) If the owner or operator chooses not to resample, then the concentrations of these additional constituents must be reported to the executive director within seven days after completion of the initial analysis, and must be added to the monitoring list.(11) If the owner or operator determines, pursuant to paragraph (4) of this section, that any concentration limits under §335.160 of this title are being exceeded at any monitoring well at the point of compliance, he must:(A) notify the executive director of this finding in writing within seven days. The notification must indicate what concentration limits have been exceeded;(B) submit to the executive director an investigation report to establish a corrective action program meeting the requirements of §335.166 of this title (relating to Corrective Action Program) within 180 days, or within 90 days if an engineering feasibility study has been previously submitted to the executive director under §335.164(7)(E) of this title. The report must at a minimum include the following information:(i) a detailed description of corrective actions that will achieve compliance with the groundwater protection standard specified in the permit under paragraph (1) of this section; and(ii) a plan for a groundwater monitoring program that will demonstrate the effectiveness of the corrective action. Such a groundwater monitoring program may be based on a compliance monitoring program developed to meet the requirements of this section.(12) If the owner or operator determines, pursuant to paragraph (4) of this section, that the groundwater concentration limits are being exceeded at any monitoring well at the point of compliance, he may demonstrate that a source other than a regulated unit caused the contamination or that the detection is an artifact caused by error in sampling, analysis, or evaluation or natural variation in groundwater. In making a demonstration under this subsection, the owner or operator must:(A) notify the executive director in writing within seven days that he intends to make a demonstration under this section;(B) within 90 days submit a report to the executive director which demonstrates that a source other than a regulated unit caused the standard to be exceeded or that the apparent noncompliance with the standards resulted from error in sampling, analysis, or evaluation;(C) within 90 days submit to the executive director an application for a compliance plan amendment or compliance modification to make any appropriate change to the compliance monitoring program at the facility; and(D) continue to monitor in accord with the compliance monitoring program established under this section.(13) If the owner or operator determines that the compliance monitoring program no longer satisfies the requirements of this section, he must, within 90 days, submit an application for a plan modification to make any appropriate changes to the program.(14) The owner or operator shall prepare an annual summary to include the groundwater quality data and groundwater flow rate and direction required under paragraphs (3) and (5) of this section. Such annual summary shall be submitted to the executive director by January 21 of each year on forms provided or approved by the executive director. An owner or operator must keep a copy of the summary for a period of at least three years from the due date of the summary. The period of record retention required by this section is automatically extended during the course of any unresolved enforcement action regarding the regulated activity.</content><note type="source"><p>Source Note: The provisions of this §335.165 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective August 4, 1989, 14 TexReg 3532; amended to be effective October 29, 1990, 15 TexReg 6017; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.166"><num value="335.166">§335.166</num><heading>Corrective Action Program</heading><content>An owner or operator required to establish a corrective action program must, at a minimum, discharge the following responsibilities.(1) The owner or operator must take corrective action to ensure that regulated units are in compliance with the groundwater protection standard under §335.158 of this title (relating to Groundwater Protection Standard). The commission will specify the groundwater protection standard in the compliance plan, including:(A) a list of the hazardous constituents identified under §335.159 of this title (relating to Hazardous Constituents);(B) concentration limits under §335.160 of this title (relating to Concentration Limits) for each of those hazardous constituents;(C) the compliance point under §335.161 of this title (relating to Point of Compliance); and(D) the compliance period under §335.162 of this title (relating to Compliance Period).(2) The owner or operator must implement a corrective action program that prevents hazardous constituents from exceeding their respective concentration limits at the compliance point by removing the hazardous waste constituents or treating them in place. The plan will specify the specific measures that will be taken.(3) The owner or operator must begin corrective action within a reasonable time period after the groundwater protection standard is exceeded. The commission will specify that time period in the plan. If a compliance plan includes a corrective action program in addition to a compliance monitoring program, the plan will specify when the corrective action will begin and such a requirement will operate in lieu of §335.165(12)(B) of this title (relating to Compliance Monitoring Program).(4) In conjunction with a corrective action program, the owner or operator must establish and implement a groundwater monitoring program to demonstrate the effectiveness of the corrective action program. Such a monitoring program may be based on the requirements for a compliance monitoring program under §335.165 of this title and must be as effective as that program in determining compliance with the groundwater protection standard under paragraph (5) of this section, where appropriate.(5) In addition to the other requirements of this section, the owner or operator must conduct a corrective action program to remove or treat in place any hazardous constituents under §335.159 of this title that exceed concentration limits under §335.160 of this title in groundwater between the compliance point under §335.161 of this title and the downgradient facility property boundary and beyond the facility boundary, where necessary to protect human health and the environment, unless the owner or operator demonstrates to the satisfaction of the executive director that, despite the owner's or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action. The owner/operator is not relieved of all responsibility to clean up a release that has migrated beyond the facility boundary where off-site access is denied. On-site measures to address such releases will be determined on a case-by-case basis. The plan will specify the measures to be taken.(A) Corrective action measures under this section must be initiated and completed within a reasonable period of time considering the extent of contamination.(B) Corrective action measures under this section may be terminated once the concentration of hazardous constituents under §335.159 of this title is reduced to levels below their respective concentration under §335.160 of this title.(6) The owner or operator must continue corrective action measures during the compliance period to the extent necessary to ensure that the groundwater protection standard is not exceeded. If the owner or operator is conducting corrective action at the end of the compliance period, he must continue that corrective action for as long as necessary to achieve compliance with the groundwater protection standard. The owner or operator may terminate corrective action measures taken beyond the period equal to the active life of the waste management area (including the closure period) if he can demonstrate, based on data from the groundwater monitoring program under paragraph (4) of this section, that the groundwater protection standard of §335.158 of this title has not been exceeded for a period of three consecutive years.(7) The owner or operator must report in writing to the executive director on the effectiveness of the corrective action program. The owner or operator must submit these reports annually.(8) If the owner or operator determines that the corrective action program no longer satisfies the requirements of this section, he must, within 90 days, submit an application for a plan modification to make any appropriate changes to the program.</content><note type="source"><p>Source Note: The provisions of this §335.166 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.167"><num value="335.167">§335.167</num><heading>Corrective Action for Solid Waste Management Units</heading><content>(a) The owner or operator of a facility seeking a permit or post-closure order for the processing, storage, or disposal of hazardous waste must institute corrective action as necessary to protect human health and the environment for all releases of hazardous waste or constituents from any solid waste management unit at the facility, regardless of the time at which waste was placed in such unit.(b) Corrective action at a permitted facility will be specified in the compliance plan under §305.401 of this title (relating to Compliance Plan) and in accordance with this section, 40 Code of Federal Regulations (CFR) Part 264, Subpart S, and §335.152 of this title (relating to Standards). The plan will contain schedules of compliance for such corrective action where such corrective action cannot be completed prior to issuance of the permit or plan. Financial assurance for such corrective action shall be established and maintained in accordance with Chapter 37, Subchapter P of this title (relating to Financial Assurance for Hazardous and Nonhazardous Industrial Solid Waste Facilities) in an amount acceptable to the executive director.(c) Corrective action at a facility under a post-closure order will be specified in the facility's post- closure order in accordance with this section, 40 CFR Part 264, Subpart S, and §335.152 of this title. The post-closure order will contain schedules of compliance for such corrective action where such corrective action cannot be completed prior to issuance of the post-closure order. Financial assurance for such corrective action shall be established and maintained in accordance with Chapter 37, Subchapter P of this title in an amount acceptable to the executive director.(d) The owner or operator must implement corrective actions beyond the facility boundary, where necessary to protect human health and the environment, unless the owner or operator demonstrates to the satisfaction of the executive director that, despite the owner's or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action. The owner/operator is not relieved of all responsibility to clean up a release that has migrated beyond the facility boundary where off-site access is denied. On-site measures to address such releases will be determined on a case-by-case basis. Financial assurance for such corrective action shall be established and maintained in accordance with Chapter 37, Subchapter P of this title, in an amount acceptable to the executive director.</content><note type="source"><p>Source Note: The provisions of this §335.167 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective February 22, 1994, 19 TexReg 969; amended to be effective March 21, 2000, 25 TexReg 2394; amended to be effective January 30, 2003, 28 TexReg 715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.168"><num value="335.168">§335.168</num><heading>Design and Operating Requirements (Surface Impoundments)</heading><content>(a) Any surface impoundment that is not covered by subsection (c) of this section or 40 Code of Federal Regulations (CFR) §265.221 must have a liner for all portions of the impoundment (except for existing portions of such impoundments). The liner must be designed, constructed, and installed to prevent any migration of wastes out of the impoundment to the adjacent subsurface soil or groundwater or surface water at any time during the active life (including the closure period) of the impoundment. The liner may be constructed of materials that may allow wastes to migrate into the liner (but not into the adjacent subsurface soil or groundwater or surface water) during the active life of the facility, provided that the impoundment is closed in accordance with §335.169(a)(1) of this title (relating to Closure and Post-Closure Care (Surface Impoundments)). For impoundments that will be closed in accordance with §335.169(a)(2) of this title, the liner must be constructed of materials that can prevent wastes from migrating into the liner during the active life of the facility. The liner must be:(1) constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operation;(2) placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift; and(3) installed to cover all surrounding earth likely to be in contact with the waste or leachate.(b) The owner or operator will be exempted from the requirements of subsections (a) and (j) of this section if the commission finds, based on a demonstration by the owner or operator, that alternate design and operating practices, together with location characteristics, will prevent the migration of any hazardous constituents (see §335.159 of this title (relating to Hazardous Constituents)) into the groundwater or surface water at any future time. In deciding whether to grant an exemption, the commission will consider:(1) the nature and quantity of the wastes;(2) the adopted alternate design and operation;(3) the hydrogeologic setting of the facility, including the attenuative capacity and thickness of the liners and soils present between the impoundment and groundwater or surface water; and(4) all other factors which would influence the quality and mobility of the leachate produced and the potential for it to migrate to groundwater or surface water.(c) The owner or operator of each new surface impoundment unit on which construction commences after January 29, 1992, each lateral expansion of a surface impoundment unit on which construction commences after July 29, 1992, and each replacement of an existing surface impoundment unit that is to commence reuse after July 29, 1992, must meet the requirements of 40 CFR §264.221(c), as amended through July 14, 2006 (71 FR 40254).(d) The executive director may approve alternative design or operating practices to those specified in subsection (c) of this section if the owner or operator demonstrates to the executive director that he meets the requirements of 40 CFR §264.221(d), as amended through January 29, 1992 (57 FR 3462).(e) The double liner requirement set forth in subsection (c) of this section may be waived by the commission for any monofill which contains only hazardous wastes from foundry furnace emission controls or metal casting molding sand, and such wastes do not contain constituents which would render the wastes hazardous for reasons other than the toxicity characteristics in 40 CFR §261.24, and is in compliance with either of the following requirements:(1) the monofill:(A) has at least one liner for which there is no evidence that such liner is leaking. For the purposes of this subsection, the term "liner" means a liner designed, constructed, installed, and operated to prevent hazardous waste from passing into the liner at any time during the active life of the facility, or a liner designed, constructed, installed, and operated to prevent hazardous waste from migrating beyond the liner to adjacent subsurface soil, groundwater, or surface water at any time during the active life of the facility. In the case of any surface impoundment which has been exempted from the requirements of subsection (c) of this section on the basis of a liner designed, constructed, installed, and operated to prevent hazardous waste from passing beyond the liner, at the closure of such impoundment, the owner or operator must remove or decontaminate all waste residues, all contaminated liner material, and contaminated soil to the extent practicable. If all contaminated soil is not removed or decontaminated, the owner or operator of such impoundment will comply with appropriate post-closure requirements, including, but not limited to, groundwater monitoring and corrective action;(B) is located more than 1/4 mile from an underground source of drinking water (as that term is defined in §331.2 of this title (relating to Definitions)); and(C) is in compliance with groundwater monitoring requirements of this subchapter; or(2) the owner or operator demonstrates that the monofill is located, designed, and operated so as to assure that there will be no migration of any hazardous constituent into groundwater or surface water at any future time.(f) The owner or operator of any replacement surface impoundment unit is exempt from subsection (c) of this section if:(1) The existing unit was constructed in compliance with the design standards of Resource Conservation and Recovery Act, §3004(o)(1)(A)(i) and (o)(5); and(2) There is no reason to believe that the liner is not functioning as designed.(g) A surface impoundment must be designed, constructed, maintained, and operated to prevent overtopping resulting from normal or abnormal operations, overfilling, wind, and wave action; rainfall; run-off, malfunctions of level controllers, alarms, and other equipment; and human error.(h) A surface impoundment must have dikes that are designed, constructed, and maintained with sufficient structural integrity to prevent massive failure of the dikes. In ensuring structural integrity, it must not be presumed that the liner system will function without leakage during the active life of the unit.(i) The commission will specify in the permit all design and operating practices that are necessary to ensure that the requirements of this section are satisfied.(j) A surface impoundment (except for an existing portion of a surface impoundment) that will be closed in accordance with §335.169(a)(2) of this title must have an additional liner to that required in subsection (a) of this section which:(1) prevents any migration of wastes out of the impoundment to the adjacent subsurface soil or groundwater or surface water at any time prior to the end of the post-closure care period; and(2) minimizes the rate of migration of wastes out of the impoundment to the adjacent subsurface soil or groundwater or surface water so as not to pose a substantial present or potential hazard to human health and the environment.</content><note type="source"><p>Source Note: The provisions of this §335.168 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective March 18, 1991, 16 TexReg 1369; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective February 26, 1996, 21 TexReg 1142; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective February 21, 2013, 38 TexReg 978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.169"><num value="335.169">§335.169</num><heading>Closure and Post-Closure Care (Surface Impoundments)</heading><content>(a) At closure, the owner or operator must:(1) remove or decontaminate all waste residues, contaminated containment system components (liners, etc.) contaminated subsoils, and structures and equipment contaminated with waste and leachate, and manage them as hazardous waste unless 40 Code of Federal Regulations (CFR) §261.3(d) applies; or(2) eliminate free liquids by removing liquid wastes or solidifying the remaining wastes and waste residues; stabilize remaining wastes to a bearing capacity sufficient to support final cover; and cover the surface impoundment with a final cover designed and constructed to:(A) provide long-term minimization of the migration of liquids through the closed impoundment;(B) function with minimum maintenance;(C) promote drainage and minimize erosion or abrasion of the final cover;(D) accommodate settling and subsidence so that the cover's integrity is maintained; and(E) have a permeability less than or equal to the permeability of any bottom liner system or natural subsoils present.(b) If some waste residues or contaminated materials are left in place at final closure, the owner or operator must comply with all post-closure requirements contained in 40 CFR §§264.117 - 264.120, including maintenance and monitoring throughout the post-closure care period (specified in the permit under 40 CFR §264.117). The owner or operator must:(1) maintain the integrity and effectiveness of the final cover including making repairs to the cap as necessary to correct the effects of settling, subsidence, erosion, or other events;(2) maintain and monitor the leak detection system in accordance with 40 CFR §§264.221(c)(2)(iv) and (3) and 264.226(d), and comply with all other applicable leak detection system requirements of this subchapter;(3) maintain and monitor the groundwater monitoring system and comply with all other applicable requirements of §§335.156 - 335.166 of this title (relating to Applicability of Groundwater Monitoring and Response; Required Programs; Groundwater Protection Standard; Hazardous Constituents; Concentration Limits; Point of Compliance; Compliance Period; General Groundwater Monitoring Requirements; Detection Monitoring Program; Compliance Monitoring Program; and Corrective Action Program); and(4) prevent run-on and run-off from eroding or otherwise damaging the final cover.(c) If an owner or operator plans to close a surface impoundment in accordance with subsection (a)(1) of this section, and the impoundment does not comply with the liner requirements of §335.168(a) of this title (relating to Design and Operating Requirements (Surface Impoundments)) and is not exempt from them in accordance with §335.168(b) of this title, then:(1) the closure plan for the impoundment under 40 CFR §264.112 must include both a plan for complying with subsection (a)(1) of this section and a contingent plan for complying with subsection (a) (2) of this section, in case not all contaminated subsoils can be practicably removed at closure; and the owner or operator must prepare a contingent post-closure plan under 40 CFR §264.118 for complying with subsection (b) of this section, in case not all contaminated subsoils can be practicably removed at closure;(2) the cost estimates calculated under 40 CFR §264.142 and §264.144 for closure and post-closure care of an impoundment subject to this subsection must include the cost of complying with the contingent closure plan and the contingent post-closure plan, but are not required to include the cost of expected closure under subsection (a)(1) of this section.</content><note type="source"><p>Source Note: The provisions of this §335.169 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective February 26, 1996, 21 TexReg 1142; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.170"><num value="335.170">§335.170</num><heading>Design and Operating Requirements (Waste Piles)</heading><content>(a) A waste pile (except for an existing portion of a waste pile) must have:(1) a liner that is designed, constructed, and installed to prevent any migration of wastes out of the pile into the adjacent subsurface soil or groundwater or surface water at any time during the active life (including the closure period) of the waste pile. The liner may be constructed of materials that may allow waste to migrate into the liner itself (but not into the adjacent subsurface soil or groundwater or surface water) during the active life of the facility. The liner must be:(A) constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operation;(B) placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift; and(C) installed to cover all surrounding earth likely to be in contact with the waste or leachate; and(2) a leachate collection and removal system immediately above the liner that is designed, constructed, maintained, and operated to collect and remove leachate from the pile. The commission will specify design and operating conditions in the permit to ensure that the leachate depth over the liner does not exceed 30 centimeters (one foot). The leachate collection and removal system must be:(A) constructed of materials that are:(i) chemically resistant to the waste managed in the pile and the leachate expected to be generated; and(ii) of sufficient strength and thickness to prevent collapse under the pressures exerted by overlaying wastes, waste cover materials, and by any equipment used at the pile; and(B) designed and operated to function without clogging through the scheduled closure of the waste pile.(b) The owner or operator will be exempted from the requirements of subsection (a) of this section if the commission finds, based on a demonstration by the owner or operator, the alternate design and operating practices, together with location characteristics, will prevent the migration of any hazardous constituents into the groundwater or surface water at any future time. In deciding whether to grant an exemption, the commission will consider:(1) the nature and quantity of the wastes;(2) the proposed alternate design and operation;(3) the hydrogeologic setting of the facility, including attenuative capacity and thickness of the liners and soils present between the pile and groundwater or surface water; and(4) all other factors which would influence the quality and mobility of the leachate produced and the potential for it to migrate to groundwater or surface water.(c) The owner and operator of each new waste pile unit, each lateral expansion of a waste pile unit, and each replacement of an existing waste pile unit, must comply with the requirements of 40 CFR §264.251(c), as amended through April 4, 2006 (71 FR 16862).(d) The executive director may approve alternative design or operating practices to those specified in subsection (c) of this section if the owner or operator demonstrates to the executive director that such design and operating practices, together with location characteristics:(1) will prevent the migration of any hazardous constituent into the groundwater or surface water at least as effectively as the liners and leachate collection and removal systems specified in subsection (c) of this section; and(2) will allow detection of leaks of hazardous constituents through the top liner at least as effectively.(e) Subsection (c) of this section does not apply to monofills that are granted a waiver by the Commission in accordance with §335.168(e) of this title (relating to Design and Operating Requirements (Surface Impoundments)).(f) The owner or operator of any replacement waste pile unit is exempt from subsection (c) of this section if:(1) The existing unit was constructed in compliance with the design standards of §3004(o)(1)(A)(i) and (o)(5) of the Resource Conservation and Recovery Act; and(2) There is no reason to believe that the liner is not functioning as designed.(g) The owner or operator must design, construct, operate, and maintain a run-on control system capable of preventing flow onto the active portion of the pile during peak discharge from at least a 100-year storm.(h) The owner or operator must design, construct, operate, and maintain a run-off management system to collect and control at least the water volume from active portions resulting from a 24-hour, 100-year storm.(i) Collection and holding facilities (e.g., tanks or basins) associated with run-on and run-off control systems must be emptied or otherwise managed expeditiously after storms to maintain design capacity of the system.(j) If the pile contains any particulate matter which may be subject to wind dispersal, the owner or operator must cover or otherwise manage the pile to control wind dispersal.(k) The commission will specify in the permit all design and operating practices that are necessary to ensure that the requirements of this section are satisfied.</content><note type="source"><p>Source Note: The provisions of this §335.170 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective February 26, 1996, 21 TexReg 1142; amended to be effective February 21, 2013, 38 TexReg 978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.171"><num value="335.171">§335.171</num><heading>Design and Operating Requirements (Land Treatment Units)</heading><content>The commission will specify in the facility permit how the owner or operator will design, construct, operate, and maintain the land treatment unit in compliance with this section.(1) The owner or operator must design, construct, operate, and maintain the unit to maximize the degradation, transformation, and immobilization of hazardous constituents in the treatment zone. The owner or operator must design, construct, operate, and maintain the unit in accord with all design and operating conditions that were used in the treatment demonstration under 40 Code of Federal Regulations §264.272. At a minimum, the commission will specify the following in the facility permit:(A) the rate and method of waste application to the treatment zone;(B) measures to control soil pH;(C) measures to enhance microbial or chemical reactions (e.g., fertilization, tilling); and(D) measures to control the moisture content of the treatment zone.(2) The owner or operator must design, construct, operate, and maintain the treatment zone to minimize run-off of hazardous constituents during the active life of the land treatment unit.(3) The owner or operator must design, construct, operate, and maintain a run-on control system capable of preventing flow onto the treatment zone during peak discharge from at least a 100-year storm.(4) The owner or operator must design, construct, operate, and maintain a run-off management system to collect and control at least the water volume from active portions resulting from a 24-hour, 100-year storm.(5) Collection and holding facilities (e.g., tanks or basins) associated with run-on and run-off control systems must be emptied or otherwise managed expeditiously after storms to maintain the design capacity of the system.(6) If the treatment zone contains particulate matter which may be subject to wind dispersal, the owner or operator must manage the unit to control wind dispersal.(7) The owner or operator must inspect the unit weekly and after storms to detect evidence of:(A) deterioration, malfunctions, or improper operation of run-on and run-off control systems; and(B) improper functioning of wind dispersal control measures.</content><note type="source"><p>Source Note: The provisions of this §335.171 adopted to be effective May 28, 1986, 11 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.172"><num value="335.172">§335.172</num><heading>Closure and Post-Closure Care (Land Treatment Units)</heading><content>(a) During the closure period, the owner or operator must:(1) continue all operations (including pH control) necessary to maximize degradation, transformation, or immobilization of hazardous constituents within the treatment zone as required under §335.171(1) of this title (relating to Design and Operating Requirements (Land Treatment Units)), except to the extent such measures are inconsistent with paragraph (8) of this subsection;(2) continue all operations in the treatment zone to minimize run-off of hazardous constituents as required under §335.171(3) of this title;(3) maintain the run-on control system required under §335.171(3) of this title;(4) maintain the run-off management system required under §335.171(4) of this title;(5) control wind dispersal of hazardous waste if required under §335.171(6) of this title;(6) continue to comply with any prohibitions or conditions concerning growth of food-chain crops under 40 Code of Federal Regulations (CFR) §264.276;(7) continue unsaturated zone monitoring in compliance with 40 CFR §264.278, except that soil-pore liquid monitoring may be terminated 90 days after the last application of waste to the treatment zone; and(8) establish a vegetative cover on the portion of the facility being closed at such time that the cover will not substantially impede degradation, transformation, or immobilization of hazardous constituents in the treatment zone. The vegetative cover must be capable of maintaining growth without extensive maintenance.(b) For the purpose of complying with 40 CFR §264.115, when closure is completed, the owner or operator may submit to the executive director certification by an independent licensed professional geoscientist, in lieu of an independent licensed professional engineer, that the facility has been closed in accordance with the specifications in the approved closure plan.(c) During the post-closure care period, the owner or operator must:(1) continue all operations (including pH control) necessary to enhance degradation and transformation and sustain immobilization of hazardous constituents in the treatment zone to the extent that such measures are consistent with other post-closure care activities;(2) maintain a vegetative cover over closed portions of the facility;(3) maintain the run-on control system required under §335.171(3) of this title;(4) maintain the run-off management system required under §335.171(4) of this title;(5) control wind dispersal of hazardous waste if required under §335.171(6) of this title;(6) continue to comply with any prohibition or conditions concerning growth of food-chain crops under 40 CFR §264.276; and(7) continue unsaturated zone monitoring in compliance with 40 CFR §264.278, except that soil-pore liquid monitoring may be terminated 90 days after the last application of waste to the treatment zone.(d) The owner or operator is not subject to regulation under subsections (a)(8) and (c) of this section if the commission finds that the level of hazardous constituents in the treatment zone does not exceed the background value of those constituents by an amount that is statistically significant when using the test specified in paragraph (3) of this subsection. The owner or operator may submit such a demonstration to the executive director at any time during the closure or post-closure care periods.(1) The owner or operator must establish background soil values and determine whether there is a statistically significant increase over those values for all hazardous constituents specified in the facility permit under 40 CFR §264.271(b).(A) Background soil values may be based on a one-time sampling of a background plot having characteristics similar to those of the treatment zone.(B) The owner or operator must express background values and values for hazardous constituents in the treatment zone in a form necessary for the determination of statistically significant increases under paragraph (3) of this subsection.(2) In taking samples used in the determination of background and treatment zone values, the owner or operator must take samples at a sufficient number of sampling points and at appropriate locations and depths to yield samples that represent the chemical make-up of soil that has not been affected by solid waste or leakage from the treatment zone, and the soil within the treatment zone, respectively.(3) In determining whether a statistically significant increase has occurred, the owner or operator must compare the value of each constituent in the treatment zone to the background value for that constituent using a statistical procedure that provides reasonable confidence that constituent presence in the treatment zone will be identified. The owner or operator must use a statistical procedure that:(A) is appropriate for the distribution of the data used to establish background values; and(B) provides a reasonable balance between the probability of falsely identifying hazardous constituent presence in the treatment zone and the probability of failing to identify real presence in the treatment zone.(e) The owner or operator is not subject to regulation under §§335.156 - 335.166 of this title (relating to Applicability of Groundwater Monitoring and Response; Required Programs; Groundwater Protection Standard; Hazardous Constituents; Concentration Limits; Point of Compliance; Compliance Period; General Groundwater Monitoring Requirements; Detection Monitoring Program; Compliance Monitoring Program; and Corrective Action Program); if the commission finds that the owner or operator satisfied subsection (d) of this section and if unsaturated zone monitoring under 40 CFR §264.278 indicates that hazardous constituents have not migrated beyond the treatment zone during the active life of the land treatment unit.</content><note type="source"><p>Source Note: The provisions of this §335.172 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective September 1, 2003, 28 TexReg 6915.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.173"><num value="335.173">§335.173</num><heading>Design and Operating Requirements (Landfills)</heading><content>(a) Any landfill that is not covered by subsection (c) of this section or 40 Code of Federal Regulations (CFR) §265.301(a) must have a liner system for all portions of the landfill (except for existing portions of such landfill). The liner system must have:(1) a liner that is designed, constructed, and installed to prevent any migration of wastes out of the landfill to the adjacent subsurface soil or groundwater or surface water at any time during the active life (including the closure period) of the landfill. The liner must be constructed of materials that prevent wastes from passing into the liner during the active life of the facility. The liner must be:(A) constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operation;(B) placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift; and(C) installed to cover all surrounding earth likely to be in contact with the waste or leachate; and(2) a liner that:(A) prevents any migration of wastes out of the landfill to the adjacent subsurface soil or groundwater or surface water at any time prior to the end of the post-closure care period; and(B) minimizes the rate of migration of wastes out of the landfill to the adjacent subsurface soil or groundwater or surface water so as not to pose a substantial present or potential hazard to human health and the environment; and(3) a leachate collection and removal system immediately above the top liner that is designed, constructed, maintained, and operated to collect and remove leachate from the landfill. The commission will specify design and operating conditions in the permit to ensure that the leachate depth over the liner does not exceed 30 centimeters (one foot). The leachate collection and removal system must be:(A) constructed of materials that are:(i) chemically resistant to the waste managed in the landfill and the leachate expected to be generated; and(ii) of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying wastes, waste cover materials, and by any equipment used at the landfill; and(B) designed and operated to function without clogging through the scheduled closure of the landfill.(b) The owner or operator will be exempted from the requirements of subsection (a) of this section if the commission finds, based on a demonstration by the owner or operator, that alternative design and operating practices, together with location characteristics, will prevent the migration of any hazardous constituents (see §335.159 of this title (relating to Hazardous Constituents)) into the groundwater or surface water at any future time. In deciding whether to grant an exemption, the commission will consider:(1) the nature and quantity of the wastes;(2) the adopted alternate design and operation;(3) the hydrogeologic setting of the facility, including the attenuative capacity and thickness of the liners and soils present between the landfill and groundwater or surface water; and(4) all other factors which would influence the quality and mobility of the leachate produced and the potential for it to migrate to groundwater or surface water.(c) The owner or operator of each new landfill unit on which construction commences after January 29, 1992, each lateral expansion of a landfill unit on which construction commences after July 29, 1992, and each replacement of an existing landfill unit that is to commence reuse after July 29, 1992, must comply with 40 CFR §264.301(c) as amended through January 29, 1992, at 57 FedReg 3489.(d) The executive director may approve alternative design or operating practices to those specified in subsection (c) of this section if the owner or operator demonstrates to the executive director that such design and operating practices, together with location characteristics:(1) will prevent the migration of any hazardous constituent into the groundwater or surface water at least as effectively as the liners and leachate collection and removal systems specified in subsection (c) of this section; and(2) will allow detection of leaks of hazardous constituents through the top liner at least as effectively.(e) The double liner requirement set forth in subsection (c) of this section may be waived by the commission for any monofill which contains only hazardous wastes from foundry furnace emission controls or metal casting molding sand, and such wastes do not contain constituents which would render the wastes hazardous for reasons other than the toxicity characteristics in 40 CFR §261.24, and is in compliance with either paragraph (1) or (2) of this subsection.(1) The monofill:(A) has at least one liner for which there is no evidence that such liner is leaking;(B) is located more than 1/4 mile from an "underground source of drinking water" (as that term is defined in §331.2 of this title (relating to Definitions)); and(C) is in compliance with groundwater monitoring requirements of this subchapter.(2) The owner or operator demonstrates that the monofill is located, designed, and operated so as to assure that there will be no migration of any hazardous constituent into groundwater or surface water at any future time.(f) The owner or operator of any replacement landfill unit is exempt from subsection (c) of this section if:(1) The existing unit was constructed in compliance with the design standards of §3004(o)(1)(A)(i) and (o)(5) of the Resource Conservation and Recovery Act; and(2) There is no reason to believe that the liner is not functioning as designed.(g) The owner or operator must design, construct, operate, and maintain a run-on control system capable of preventing flow onto the active portion of the landfill during peak discharge from at least a 100-year storm.(h) The owner or operator must design, construct, operate, and maintain a run-off management system to collect and control at least the water volume from active portions resulting from a 24-hour, 100-year storm.(i) Collection and holding facilities (e.g., tanks or basins) associated with run-on and run-off control systems must be emptied or otherwise managed expeditiously after storms to maintain design capacity of the system.(j) If the landfill contains any particulate matter which may be subject to wind dispersal, the owner or operator must cover or otherwise manage the landfill to control wind dispersal.(k) The commission will specify in the permit all design and operating practices that are necessary to ensure that the requirements of this section are satisfied.</content><note type="source"><p>Source Note: The provisions of this §335.173 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective March 18, 1991, 16 TexReg 1369; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective February 26, 1996, 21 TexReg 1142; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.174"><num value="335.174">§335.174</num><heading>Closure and Post-Closure Care (Landfills)</heading><content>(a) At final closure of the landfill or upon closure of any cell, the owner or operator must cover the landfill or cell with a final cover designed and constructed to:(1) provide long-term minimization of migration of liquids through the closed landfill;(2) function with minimum maintenance;(3) promote drainage and minimize erosion or abrasion of the cover;(4) accommodate settling and subsidence so that the cover's integrity is maintained; and(5) have a permeability less than or equal to the permeability of any bottom liner system or natural subsoils present.(b) After final closure, the owner or operator must comply with all post-closure requirements contained in 40 Code of Federal Regulations §§264.117-264.120, including maintenance and monitoring throughout the post-closure care period (specified in the permit under 40 Code of Federal Regulations §264.117). The owner or operator must:(1) maintain the integrity and effectiveness of the final cover, including making repairs to the cap as necessary to correct the effects of settling, subsidence, erosion, or other events;(2) continue to operate the leachate collection and removal system until leachate is no longer detected;(3) maintain and monitor the leak detection system in accordance with 40 CFR §264.301(c)(3)(iv) and (4) and §264.303(c), and comply with all other applicable leak detection system requirements of this subchapter.(4) maintain and monitor the groundwater monitoring system and comply with all other applicable requirements of §§335.156-335.166 of this title (relating to Applicability of Groundwater Monitoring and Response; Required Programs; Groundwater Protection Standard; Hazardous Constituents; Concentration Limits; Point of Compliance; Compliance Period; General Groundwater Monitoring Requirements; Detection Monitoring Program; Compliance Monitoring Program; and Corrective Action Program);(5) prevent run-on and run-off from eroding or otherwise damaging the final cover; and(6) protect and maintain surveyed benchmarks used in complying with 40 Code of Federal Regulations §264.309.</content><note type="source"><p>Source Note: The provisions of this §335.174 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective February 26, 1996, 21 TexReg 1142.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.175"><num value="335.175">§335.175</num><heading>Special Requirements for Bulk and Containerized Waste</heading><content>(a) The placement of bulk or non-containerized liquid hazardous waste or hazardous waste containing free liquids (whether or not sorbents have been added) in any landfill is prohibited.(b) To demonstrate the absence or presence of free liquids in either a containerized or bulk waste, the following test must be used: Method 9095B (Paint Filter Liquids Test) as described in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW-846, as incorporated by reference in 40 Code of Federal Regulations (CFR) §260.11 and in §335.31 of this title (relating to Incorporation of References).(c) The placement of any liquid which is not a hazardous waste in a landfill is prohibited, unless the owner or operator of such landfill demonstrates to the commission, or the commission determines that:(1) the only reasonably available alternative to the placement in such landfill is placement in a landfill or unlined surface impoundment, whether or not permitted or operating under interim status, which contains or may reasonably be anticipated to contain hazardous waste; and(2) placement in such owner or operator's landfill will not present a risk of contamination of any "underground source of drinking water" (as that term is defined in §331.2 of this title (relating to Definitions)).(d) Containers holding liquid waste or waste containing free liquids must not be placed in a landfill unless:(1) the container is very small, such as an ampule; or(2) the container is designed to hold free liquids for use other than storage, such as a battery or capacitor; or(3) the container is a lab pack as defined in 40 CFR §264.316 and is disposed of in accordance with 40 CFR §264.316.</content><note type="source"><p>Source Note: The provisions of this §335.175 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective February 26, 1996, 21 TexReg 1142; amended to be effective November 20, 1996, 21 TexReg 10983; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.176"><num value="335.176">§335.176</num><heading>Special Requirements for Containers</heading><content>Unless they are very small, such as an ampule, containers must be crushed, shredded, or similarly reduced in volume to the maximum extent practical before burial in a landfill.</content><note type="source"><p>Source Note: The provisions of this §335.176 adopted to be effective May 28, 1986, 11 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.177"><num value="335.177">§335.177</num><heading>General Performance Standard</heading><content>No person may cause, suffer, allow, or permit the storage, processing, or disposal of hazardous waste in such a manner so as to cause:(1) the discharge or imminent threat of discharge of hazardous waste, hazardous or nonhazardous constituents, or any other materials resulting from industrial solid waste activities, including, but not limited to, reaction products, into or adjacent to the waters in the state without specific authorization for such discharge from the Texas Natural Resource Conservation Commission;(2) the creation and maintenance of a nuisance; or(3) the endangerment of the public health or welfare.</content><note type="source"><p>Source Note: The provisions of this §335.177 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.178"><num value="335.178">§335.178</num><heading>Cost Estimate for Closure</heading><content>In addition to the requirements of 40 Code of Federal Regulations (CFR) §264.142 (excluding 40 CFR §264.142(a)(2)), the closure cost estimate must be based on the costs to the owner or operator of hiring a third party to close the facility. A third party is a party who is neither the parent nor a subsidiary of the owner or operator (see definition of parent corporation in 40 CFR §264.141(d)). Notwithstanding other closure costs, such estimate must also include the costs associated with third party removal, shipment, off-site, and processing or disposal off-site, and processing or disposal off-site of the following wastes to an authorized storage, processing, or disposal facility:(1) maximum inventory of wastes in storage and/or processing units, including, but not limited to, storage surface impoundments, waste piles, tanks, and containers;(2) wastes generated as a result of closure activities (e.g. decontamination, removal of liquids from surface impoundments, or waste piles);(3) contaminated stormwater; and(4) leachate.</content><note type="source"><p>Source Note: The provisions of this §335.178 adopted to be effective July 14, 1987, 12 TexReg 2106; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.179"><num value="335.179">§335.179</num><heading>Financial Assurance</heading><content>(a) Before a permit or post-closure order may be issued, amended, extended, or renewed for a solid waste facility for storage, processing, or disposal of hazardous waste, the commission shall determine the type or types of financial assurance which may be used by the applicant to comply with applicable regulations.(b) Before hazardous waste may be stored, processed, or disposed of at a solid waste facility subject to this subchapter, the permittee must:(1) establish financial assurance for the amount of the closure cost estimate in a manner that meets the requirements of Chapter 37, Subchapter P of this title (relating to Financial Assurance for Hazardous and Nonhazardous Industrial Solid Waste Facilities), in addition to the requirements specified in §335.152(a)(6) of this title (relating to Standards); and(2) establish financial assurance for the amount of the post closure cost estimate in a manner that meets the requirements of Chapter 37, Subchapter P of this title, in addition to the requirements specified in §335.152(a)(6) of this title, if the facility:(A) includes a disposal facility;(B) includes a pile, and/or surface impoundment from which the owner or operator intends to remove the wastes at closure, to the extent that these sections are made applicable to such facilities in §335.169 of this title (relating to Closure and Post-Closure Care (Surface Impoundments)) and 40 Code of Federal Regulations, §264.258;(C) includes a tank system that is required under §335.152 of this title, to meet the requirements for landfills;(D) includes a containment building that is required under §335.152 of this title, to meet the requirements for landfills; or(E) is notified by the executive director of the need for post closure financial assurance for another type of unit.(c) Before hazardous waste may be stored, processed, or disposed of at a solid waste facility or a group of such facilities subject to this subchapter, the owner or operator must establish financial assurance for bodily injury and property damage to third parties caused by sudden accidental occurrences arising from operations of the facility or group of facilities in a manner that meets the requirements of Chapter 37 of this title (relating to Financial Assurance).(d) Before hazardous waste may be stored, processed, or disposed of at a solid waste facility containing a hazardous waste surface impoundment, landfill, land treatment facility, or disposal miscellaneous unit used to manage hazardous waste or a group of such facilities subject to this subchapter, the owner or operator must establish financial assurance for nonsudden liability coverage for bodily injury and property damage to third parties caused by nonsudden accidental occurrences arising from operations of the facility or group of facilities in a manner that meets the requirements of Chapter 37 of this title.(e) If the executive director determines that there is a significant risk to human health and the environment from nonsudden accidental occurrences resulting from the operations of a facility that is not a surface impoundment, landfill, or land treatment facility, the owner or operator may be required to comply with subsection (d) of this section.</content><note type="source"><p>Source Note: The provisions of this §335.179 adopted to be effective January 5, 1988, 12 TexReg 4846; amended to be effective March 21, 2000, 25 TexReg 2394; amended to be effective January 30, 2003, 28 TexReg 715.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.180"><num value="335.180">§335.180</num><heading>Impact of New Hazardous Waste Management Facilities on Local Land Use</heading><content>In evaluating an application for a new hazardous waste management facility permit, the commission shall assess the impact of the proposed facility on local land use in the area, including any relevant land use plans in existence before publication of the notice of intent to file a solid waste permit application, or, if no notice of intent is filed, at the time the permit application is filed.(1) In determining whether a new hazardous waste management facility is compatible with local land use, the commission shall consider, at a minimum:(A) the location of industrial and other waste-generating facilities in the area;(B) the amounts of hazardous waste generated by those facilities;(C) the risks associated with the transportation of hazardous waste to the facility; and(D) compatibility of the application with any land use plan adopted pursuant to the Texas Local Government Code, Chapter 211 (Vernon's Supplement 1991), or with local planning, zoning, or land use laws and ordinances in existence before publication of the notice of intent to file a solid waste permit application, or, if no notice of intent is filed, at the time the permit application is filed.(2) In addition, the commission may consider any of the following criteria in determining compatibility of a facility with local land use:(A) the risk of fires or explosions from improper storage and disposal methods;(B) the distance from the site boundary to existing structures; and(C) location of the facility in relation to high-hazard areas such as 100-year hurricane flood zones.(3) Based on its assessment of the application with respect to local land use, the commission may deny an application in accordance with §305.66(i) of this title (relating to Revocation and Suspension) or impose permit conditions deemed necessary to minimize or mitigate detrimental impacts on local land use, in accordance with §305.148 of this title (relating to Impact of New Hazardous Waste Management Facilities on Local Land Use).</content><note type="source"><p>Source Note: The provisions of this §335.180 adopted to be effective November 7, 1991, 16 TexReg 6065.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.181"><num value="335.181">§335.181</num><heading>Need for Specific Commercial Hazardous Waste Management Technologies</heading><content>In evaluating an application for a new commercial hazardous waste management facility permit, the commission shall determine the need for the specific technology proposed in the facility to manage new or increased volumes of waste generated in the state, in accordance with Texas Health and Safety Code, §361.0232.</content><note type="source"><p>Source Note: The provisions of this §335.181 adopted to be effective November 7, 1991, 16 TexReg 6065; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.182"><num value="335.182">§335.182</num><heading>Burden on Public Roadways by a New Commercial Hazardous Waste Management Facility</heading><content>In evaluating an application for a new commercial hazardous waste management facility permit, if the commission determines that a burden on public roadways will be imposed by the new commercial hazardous waste management facility, the commission shall require the applicant to pay the cost of the improvements necessary to minimize or mitigate the burden. The standards by which the commission shall make such a determination may include, but are not limited to, the requirements found in any of the following:(1) Policy on Geometric Design of Highways and Streets, published by the American Association of State Highways and Transportation Officials (1990);(2) Texas Manual on Uniform Traffic Control Devices;(3) Highway Capacity Manual, published by the National Highway Institute;(4) Highway Design Division and Procedures Manual, published by the Texas Department of Highways and Public Transportation; and(5) Texas Flexible Pavement Design System.</content><note type="source"><p>Source Note: The provisions of this §335.182 adopted to be effective November 7, 1991, 16 TexReg 6065.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scF/s335.183"><num value="335.183">§335.183</num><heading>Emergency Response Capabilities Required for New Commercial Hazardous Waste Management Facilities</heading><content>(a) In evaluating an application for a new commercial hazardous waste management facility permit, the commission shall verify that:(1) sufficient emergency response capabilities are available or will be available before the facility first receives waste, in the area in which the facility is located or proposed to be located; or(2) the applicant has secured sufficient financial assurance in accordance with §305.50(12)(C)(ii) or (D) of this title (relating to Additional Requirements for an Application for a Solid Waste Permit) to fund the emergency response personnel and equipment determined to be necessary by the commission, to manage a reasonable worst-case emergency condition associated with the operation of the facility.(b) If the applicant for a new commercial hazardous waste management facility intends to use emergency response facilities that are not provided by the county or municipality in which the facility is located, the applicant must provide its own facilities or contract for emergency response facilities with an adjoining county, municipality, mutual aid association, or other appropriate entity. An appropriate entity would be defined as a professional organization, existing at the time of application, regularly doing business in the area of emergency and/or disaster response.(c) If financial assurance is required pursuant to this section, it shall meet the following requirements.(1) The financial assurance must benefit the county government or municipal government in the county in which the facility is located or proposed to be located, or both.(2) The financial assurance must provide payment of the amount of the bond or other instrument to the governmental body or governmental bodies before the facility first receives waste, with a limitation that the money can only be spent for emergency response personnel and equipment.(3) The financial assurance must meet the requirements of §305.50(12)(C)(ii) or (D) of this title (relating to Additional Requirements for an Application for a Solid Waste Permit).(d) In evaluating the sufficiency of emergency response capabilities, the commission shall consider the following:(1) geology of the area;(2) drainage patterns;(3) seasonally prevailing winds and weather patterns;(4) availability of all local emergency response resources, including fire, police, hospital, etc. service;(5) proximity of human exposure and/or sensitive environmental receptors;(6) length of time for first response;(7) trained response teams on-site (OSHA specialist level), with a 24-hour response team;(8) the amount of equipment and trained personnel available on a first-response basis, including the minimum amount of equipment on hand or available near the facility with hazardous materials capabilities;(9) the ability to deal with various types of injuries;(10) the ability to respond effectively to environmental contamination; and(11) the efficiency and safety of any evacuation plan submitted by the applicant.</content><note type="source"><p>Source Note: The provisions of this §335.183 adopted to be effective November 7, 1991, 16 TexReg 6065.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scG"><num value="G">SUBCHAPTER G</num><heading>LOCATION STANDARDS FOR HAZARDOUS WASTE STORAGE, PROCESSING, OR DISPOSAL</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scG/s335.201"><num value="335.201">§335.201</num><heading>Purpose, Scope, and Applicability</heading><content>(a) This subchapter establishes minimum standards for the location of facilities used for the storage, processing, and disposal of hazardous waste. These standards are to be applied in the evaluation of an application for a permit to manage hazardous waste. Except as otherwise provided in this section, this subchapter applies to permit applications for new hazardous waste management facilities and areal expansions of existing hazardous waste management facilities, filed on or after September 1, 1984. These sections do not apply to the following:(1) permit applications submitted pursuant to §335.2(c) of this title (relating to Permit Required), §335.43(b) of this title (relating to Permit Required), and §335.45(b) of this title (relating to Effect on Existing Facilities), including any revision submitted pursuant to §305.51 of this title (relating to Revision of Applications for Hazardous Waste Permits);(2) permit applications filed pursuant to §335.2(a) of this title which have been submitted in accordance with Chapter 305 of this title (relating to Consolidated Permits) and which have been declared to be administratively complete pursuant to §281.3 of this title (relating to Initial Review) prior to September 1, 1984; and(3) on-site remedial actions conducted pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 United States Code §§9601 et seq., as amended by the Superfund Amendments Reauthorization Act of 1986 or Texas Health and Safety Code, Chapter 361, Subchapter F.(b) The standards contained in §335.204(a)(6) - (9), (b)(7) - (12), (c)(6) - (11), (d)(6) - (11), and (e) (8) - (13) are not applicable to facilities that have submitted a notice of intent to file a permit application pursuant to §335.391 of this title (relating to Pre-Application Review) prior to May 3, 1988, or to facilities that have filed permit applications pursuant to §335.2(a) of this title which were submitted in accordance with Chapter 305 of this title and that were declared to be administratively complete pursuant to §281.3 of this title (relating to Initial Review) prior to May 3, 1988.(c) The purpose of this subchapter is to condition issuance of a permit for a new hazardous waste management facility or the areal expansion of an existing hazardous waste management facility on selection of a site that reasonably minimizes possible contamination of surface water and groundwater; to define the characteristics that make an area unsuitable for a hazardous waste management facility; and to prohibit issuance of a permit for a facility to be located in an area determined to be unsuitable, unless the design, construction and operational features of the facility will prevent adverse effects from unsuitable site characteristics. Nothing herein is intended to restrict or abrogate the commission's general authority under Texas Health and Safety Code, Chapter 361 to review site suitability for all facilities which manage municipal hazardous waste or industrial solid waste.</content><note type="source"><p>Source Note: The provisions of this §335.201 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective September 1, 1986, 11 TexReg 3696; amended to be effective May 3, 1988, 13 TexReg 1913; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scG/s335.202"><num value="335.202">§335.202</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Active geologic processes - Any natural process which alters the surface and/or subsurface of the earth, including, but not limited to, erosion (including shoreline erosion along the coast), submergence, subsidence, faulting, karst formation, flooding in alluvial flood wash zones, meandering river bank cutting, and earthquakes.(2) Aquifer - A geologic formation, group of formations, or part of a formation capable of yielding a significant amount of groundwater to wells or springs. Portions of formations, such as clay beds, which are not capable of yielding a significant amount of groundwater to wells or springs are not aquifers.(3) Area subject to active shoreline erosion - A coastal area where shoreline erosion has been documented within historic time.(4) Areal expansion of an existing facility - The enlargement of a land surface area of an existing hazardous waste management facility from that described in a solid waste permit authorizing the facility.(5) Areas of direct drainage - Those land areas from which surface water runoff could flow into a lake used to supply public drinking water.(6) Commercial hazardous waste management facility - Any hazardous waste management facility that accepts hazardous waste or PCBs for a charge, except a captured facility or a facility that accepts waste only from other facilities owned or effectively controlled by the same person, where "captured facility" means a manufacturing or production facility that generates an industrial solid waste or hazardous waste that is routinely stored, processed, or disposed of on a shared basis in an integrated waste management unit owned, operated by, and located within a contiguous manufacturing complex.(7) Critical habitat of an endangered species - An area that is determined by the United States Fish and Wildlife Service to be a critical habitat for an endangered species.(8) Erosion - The group of natural processes, including weathering, deterioration, detachment, dissolution, abrasion, corrasion, wearing away, and transportation, by which earthen or rock material is removed from any part of the earth's surface.(9) Existing hazardous waste management facility - Any facility used for the storage, processing, or disposal of hazardous waste and which is authorized by a hazardous waste permit. Facilities identified in the following pending applications will also be considered existing hazardous waste management facilities pending final action on the application by the commission:(A) an application submitted pursuant to §335.2(c) of this title (relating to Permit Required), §335.43(b) of this title (relating to Permit Required), and §335.45(b) of this title (relating to Effect on Existing Facilities), including any revisions made in accordance with §305.51 of this title (relating to Revision of Applications for Hazardous Waste Permits); or(B) an application filed pursuant to §335.2(a) of this title which has been submitted in accordance with Chapter 305 of this title (relating to Consolidated Permits) and which has been declared to be administratively complete pursuant to §281.3 of this title (relating to Initial Review) prior to September 1, 1984.(10) New hazardous waste management facility - Any facility to be used for the storage, processing, or disposal of hazardous waste and which is not an existing hazardous waste management facility.(11) One hundred-year floodplain - Any land area which is subject to a 1.0% or greater chance of flooding in any given year from any source.(12) Public water system - A system for the provision to the public of piped water for human consumption, if such system has at least 15 service connections or regularly services an average of at least 25 individuals daily at least 60 days out of the year.(13) Regional aquifer - An aquifer which has been identified by the Texas Natural Resource Conservation Commission as a major or minor aquifer. Major aquifers yield large quantities of water in large areas of the state. Minor aquifers yield large quantities of water in small areas of the state or small quantities of water in large areas of the state. (These aquifers are identified in Appendix B of the Texas Department of Water Resources Report Number 238).(14) Residence - The structure and surrounding property within the property boundaries not to exceed 100 feet from the structure in all directions.(15) Secondary containment - A system designed and constructed to collect rainfall runoff, to prevent rainfall run-on from outside the structure, and to contain waste spills, leaks, or discharges within the structure until such waste can be removed.(16) Sole-source aquifer - An aquifer designated pursuant to the Safe Drinking Water Act of 1974, §1424(e), which solely or principally supplies drinking water to an area, and which, if contaminated, would create a significant hazard to public health. The Edwards Aquifer has been designated a sole-source aquifer by the EPA. The Edwards Aquifer recharge zone is specifically that area delineated on maps in the offices of the executive director.(17) Storage surface impoundment - A surface impoundment from which all wastes and waste- contaminated soils are removed at the time of closure of the impoundment.(18) Wetlands - Those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.</content><note type="source"><p>Source Note: The provisions of this §335.202 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective September 1, 1986, 11 TexReg 3696; amended to be effective May 3, 1988, 13 TexReg 1913; amended to be effective November 7, 1991, 16 TexReg 6065; amended to be effective March 20, 1992, 17 TexReg 1737; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scG/s335.203"><num value="335.203">§335.203</num><heading>Site Selection To Protect Groundwater or Surface Water</heading><content>The commission may not issue a permit for a new hazardous waste management facility or the areal expansion of an existing hazardous waste management facility unless it finds that the proposed site, when evaluated in light of proposed design, construction, and operational features, reasonably minimizes possible contamination of surface water and groundwater. In making this determination, the commission shall consider the following factors:(1) active geologic processes such as flooding, erosion, subsidence, submergence, and faulting;(2) groundwater conditions such as groundwater flow rate, groundwater quality, length of flow path to points of discharge, and aquifer recharge or discharge conditions;(3) soil conditions such as stratigraphic profile and complexity, hydraulic conductivity of strata, and separation distance from the facility to the aquifer and points of discharge to surface water; and(4) climatological conditions.</content><note type="source"><p>Source Note: The provisions of this §335.203 adopted to be effective May 28, 1986, 11 TexReg 2347.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scG/s335.204"><num value="335.204">§335.204</num><heading>Unsuitable Site Characteristics</heading><content>(a) Storage or processing facilities (excluding storage surface impoundments). (1) A storage or processing facility (excluding storage surface impoundments) may not be located in the 100-year floodplain unless it is designed, constructed, operated, and maintained to prevent physical transport of any hazardous waste by a 100-year flood event. "Physical transport" does not include movement of hazardous waste by an owner or operator to move the hazardous waste to safety during the threat of a 100-year flood event. (2) A storage or processing facility (excluding storage surface impoundments) may not be located in wetlands. (3) A storage or processing facility (excluding storage surface impoundments) may not be located on the recharge zone of a sole-source aquifer unless secondary containment is provided to preclude migration to groundwater from spills, leaks or discharges. (4) A storage or processing facility (excluding storage surface impoundments) may not be located in areas overlying regional aquifers unless: (A) the regional aquifer is separated from the facility by a minimum of ten feet of material with a hydraulic conductivity toward the aquifer not greater than 10-7 centimeters per second (cm/sec), or a thicker interval of more permeable material which provides equivalent or greater retardation to pollutant migration; or (B) secondary containment is provided to preclude migration to groundwater from spills, leaks or discharges. (5) A storage or processing facility (excluding storage surface impoundments) may not be located in areas where soil unit(s) within five feet of the containment structure have a Unified Soil Classification of GW, GP, GM, GC, SW, SP, or SM, or a hydraulic conductivity greater than 10 -5 cm/sec unless: (A) secondary containment is provided to preclude migration to groundwater or surface water from spills, leaks or discharges; or (B) the soil unit is not sufficiently thick and laterally continuous to provide a significant pathway for waste migration. (6) A storage or processing facility (excluding storage surface impoundments) may not be located in areas of direct drainage within one mile of a lake at its maximum conservation pool level, if the lake is used to supply public drinking water through a public water system, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from a release in such areas. (7) A storage or processing facility (excluding storage surface impoundments) may not be located in areas of active geologic processes unless the design, construction, and operational features of the facility will prevent adverse effects resulting from the geologic processes. (8) A storage or processing facility may not be located in the critical habitat of an endangered species of plant or animal unless the design, construction, and operational features of the facility will prevent adverse effects on the critical habitat of the endangered species. (9) A storage or processing facility may not be located within 30 feet of the upthrown side or 50 feet of the downthrown side of the actual or inferred surface expression of a fault that has reasonably been shown to have caused displacement of shallow Quaternary sediments or of man-made structures, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from fault movement. The presence, and if a fault is found to be present, the width and location of the actual or inferred surface expression of a fault, including both the identified zone of deformation and the combined uncertainties in locating a fault trace, shall be determined by a licensed professional geoscientist or geotechnical engineer. For purposes of fault assessment under this paragraph, depths of shallow sediments to be considered could be as little as 100 feet (for older, slowly accumulated sediments), or as great as 300 feet (for younger, rapidly accumulated sediments). The fault study should include analyses of any electric logs developed for any required subsurface characterization of the site, interpretation of available aerial photographs, study of available maps, logs, and documents that may indicate fault locations at the surface and in the subsurface, and a visual observation of the proposed site. (b) Land treatment facilities. (1) A land treatment facility may not be located in the 100-year floodplain unless it is designed, constructed, operated and maintained to prevent physical transport of any hazardous waste by a 100-year flood event. A new commercial hazardous waste management facility land treatment unit may not be located in a 100-year flood plain, unless the applicant demonstrates to the satisfaction of the commission that the facility design will prevent the physical transport of any hazardous waste by a 100-year flood event. (2) A land treatment facility may not be located in wetlands. (3) A land treatment facility may not be located in the recharge zone of a sole-source aquifer. (4) A land treatment facility may not be located in areas overlying regional aquifers unless: (A) it is an area where the average annual evaporation exceeds average annual rainfall plus the hydraulic loading rate of the facility by more than 40 inches and the depth to the regional aquifer is greater than 100 feet from the base of the treatment zone; or (B) the regional aquifer is separated from the base of the treatment zone by a minimum of ten feet of material with a hydraulic conductivity toward the aquifer not greater than 10-7 cm/sec, or a thicker interval of more permeable material which provides equivalent or greater retardation to pollutant migration. (5) A land treatment facility may not be located in areas where soil units(s) within five feet of the treatment zone have a Unified Soil Classification of GW, GP, GM, GC, SW, SP or SM, or a hydraulic conductivity greater than 10-5 cm/sec, unless: (A) it is in an area where the average annual evaporation exceeds average annual rainfall plus the hydraulic loading rate by more than 40 inches; or (B) the soil unit is not sufficiently thick and laterally continuous to provide a significant pathway for waste migration. (6) A land treatment facility may not be located within 1,000 feet of an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park which is in use at the time the notice of intent to file a permit application is filed with the commission, or if no such notice is filed, at the time the permit application is filed with the commission. The measurement of distances required for a new hazardous waste land treatment facility shall be taken from a perimeter around the proposed new hazardous waste land treatment management unit. The perimeter shall be not more than 75 feet from the edge of the proposed new hazardous waste land treatment unit. (7) A land treatment facility may not be located in areas of direct drainage within one mile of a lake at its maximum conservation pool level, if the lake is used to supply public drinking water through a public water system, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from a release in such areas. (8) A land treatment facility may not be located in areas of active geologic processes unless the design, construction, and operational features of the facility will prevent adverse effects resulting from the geologic processes. (9) A land treatment facility may not be located within 1,000 feet of an area subject to active coastal shoreline erosion if the area is protected by a barrier island or peninsula unless the design, construction, and operational features of the facility will prevent adverse effects resulting from storm surge and erosion or scouring by water. On coastal shorelines which are subject to active shoreline erosion and which are unprotected by a barrier island or peninsula, a separation distance from the shoreline to the facility must be at least 5,000 feet unless the design, construction, and operational features of the facility will prevent adverse effects resulting from storm surge and erosion or scouring by water. (10) A land treatment facility may not be located in the critical habitat of an endangered species of plant or animal unless the design, construction, and operational features of the facility will prevent adverse effects on the critical habitat of the endangered species. (11) A land treatment facility may not be located on a barrier island or peninsula. (12) A land treatment facility may not be located within 30 feet of the upthrown side or 50 feet of the downthrown side of the actual or inferred surface expression of a fault that has reasonably been shown to have caused displacement of shallow Quaternary sediments or of man-made structures, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from fault movement. The presence, and if a fault is found to be present, the width and location of the actual or inferred surface expression of a fault, including both the identified zone of deformation and the combined uncertainties in locating a fault trace, shall be determined by a licensed professional geoscientist or geotechnical engineer. For purposes of fault assessment under this paragraph, depths of shallow sediments to be considered could be as little as 100 feet (for older, slowly accumulated sediments), or as great as 300 feet (for younger, rapidly accumulated sediments). The fault study should include analyses of any electric logs developed for any required subsurface characterization of the site, interpretation of available aerial photographs, study of available maps, logs, and documents that may indicate fault locations at the surface and in the subsurface, and a visual observation of the proposed site. (c) Waste piles. (1) A waste pile may not be located in the 100-year floodplain unless it is designed, constructed, operated, and maintained to prevent physical transport of any hazardous waste by a 100-year flood event. "Physical transport" does not include movement of hazardous waste by an owner or operator to move the hazardous waste to safety during the threat of a 100-year flood event. (2) A waste pile may not be located in wetlands. (3) A waste pile may not be located on the recharge zone of a sole-source aquifer. (4) A waste pile may not be located in areas overlying regional aquifers unless: (A) the regional aquifer is separated from the base of the containment structure by a minimum of ten feet of material with a hydraulic conductivity toward the aquifer not greater than 10 -7 cm/sec or a thicker interval of more permeable material which provides equivalent or greater retardation to pollutant migration; or (B) secondary containment is provided to preclude pollutant migration to groundwater from spills, leaks, or discharges. (5) A waste pile may not be located in areas where soil unit(s) within five feet of the containment structure have a Unified Soil Classification of GW, GP, GM, GC, SW, SP, or SM, or a hydraulic conductivity greater than 10-5 cm/sec unless: (A) secondary containment is provided to preclude pollutant migration to groundwater or surface water from spills, leaks, or discharges; or (B) the soil unit is not sufficiently thick and laterally continuous to provide a significant pathway for waste migration. (6) A waste pile may not be located in areas of direct drainage within one mile of a lake at its maximum conservation pool level, if the lake is used to supply public drinking water through a public water system, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from a release in such areas. (7) A waste pile may not be located in areas of active geologic processes unless the design, construction, and operational features of the facility will prevent adverse effects resulting from the geologic processes. (8) A waste pile may not be located within 1,000 feet of an area subject to active coastal shoreline erosion if the area is protected by a barrier island or peninsula unless the design, construction, and operational features of the facility will prevent adverse effects resulting from storm surge and erosion or scouring by water. On coastal shorelines which are subject to active shoreline erosion and which are unprotected by a barrier island or peninsula, a separation distance from the shoreline to the facility must be at least 5,000 feet unless the design, construction, and operational features of the facility will prevent adverse effects resulting from storm surge and erosion or scouring by water. (9) A waste pile may not be located in the critical habitat of an endangered species of plant or animal unless the design, construction, and operational features of the facility will prevent adverse effects on the critical habitat of the endangered species. (10) A waste pile may not be located on a barrier island or peninsula. (11) A waste pile may not be located within 30 feet of the upthrown side or 50 feet of the downthrown side of the actual or inferred surface expression of a fault that has reasonably been shown to have caused displacement of shallow Quaternary sediments or of man-made structures, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from fault movement. The presence, and if a fault is found to be present, the width and location of the actual or inferred surface expression of a fault, including both the identified zone of deformation and the combined uncertainties in locating a fault trace, shall be determined by a licensed professional geoscientist or geotechnical engineer. For purposes of fault assessment under this paragraph, depths of shallow sediments to be considered could be as little as 100 feet (for older, slowly accumulated sediments), or as great as 300 feet (for younger, rapidly accumulated sediments). The fault study should include analyses of any electric logs developed for any required subsurface characterization of the site, interpretation of available aerial photographs, study of available maps, logs, and documents that may indicate fault locations at the surface and in the subsurface, and a visual observation of the proposed site. (d) Storage surface impoundments. (1) A storage surface impoundment may not be located in the 100-year floodplain unless it is designed, constructed, operated, and maintained to prevent physical transport of any hazardous waste by a 100-year flood event. "Physical transport" does not include movement of hazardous waste by an owner or operator to move the hazardous waste to safety during the threat of a 100-year flood event. (2) A storage surface impoundment may not be located in wetlands. (3) A storage surface impoundment may not be located on the recharge zone of a sole-source aquifer. (4) A storage surface impoundment may not be located in areas overlying regional aquifers unless: (A) the regional aquifer is separated from the base of the containment structure by a minimum of ten feet of material with a hydraulic conductivity toward the aquifer not greater than 10 -7 cm/sec or a thicker interval of more permeable material which provides equivalent or greater retardation to pollutant migration; or (B) the impoundment is double-lined and has an intervening leak detection system or the facility has an equivalent design which provides commensurate or greater assurance of waste containment. (5) A storage surface impoundment may not be located in areas where soil unit(s) within five feet of the containment structure have a Unified Soil Classification of GW, GP, GM, GC, SW, SP, or SM, or a hydraulic conductivity greater than 10-5 cm/sec unless: (A) the impoundment is double-lined and has an intervening leak detection system or the facility has an equivalent design which provides commensurate or greater assurance of waste containment; or (B) the soil unit is not sufficiently thick and laterally continuous to provide a significant pathway for waste migration. (6) A storage surface impoundment may not be located in areas of direct drainage within one mile of a lake at its maximum conservation pool level, if the lake is used to supply public drinking water through a public water system, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from a release in such areas. (7) A storage surface impoundment may not be located in areas of active geologic processes unless the design, construction, and operational features of the facility will prevent adverse effects resulting from the geologic processes. (8) A storage surface impoundment may not be located within 1,000 feet of an area of active coastal shoreline erosion if the area is protected by a barrier island or peninsula, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from storm surge and erosion or scouring by water. On coastal shorelines which are subject to active shoreline erosion and which are unprotected by a barrier island or peninsula, a separation distance from the shoreline to the facility must be at least 5,000 feet unless the design, construction, and operational features of the facility will prevent adverse effects resulting from storm surge and erosion or scouring by water. (9) A storage surface impoundment may not be located in the critical habitat of an endangered species of plant and animal unless the design, construction, and operational features of the facility will prevent adverse effects on the critical habitat of the endangered species. (10) A storage surface impoundment may not be located on a barrier island or peninsula. (11) A storage surface impoundment may not be located within 30 feet of the upthrown side or 50 feet of the downthrown side of the actual or inferred surface expression of a fault that has reasonably been shown to have caused displacement of shallow Quaternary sediments or of man-made structures, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from fault movement. The presence, and if a fault is found to be present, the width and location of the actual or inferred surface expression of a fault, including both the identified zone of deformation and the combined uncertainties in locating a fault trace, shall be determined by a licensed professional geoscientist or geotechnical engineer. For purposes of fault assessment under this paragraph, depths of shallow sediments to be considered could be as little as 100 feet (for older, slowly accumulated sediments), or as great as 300 feet (for younger, rapidly accumulated sediments). The fault study should include analyses of any electric logs developed for any required subsurface characterization of the site, interpretation of available aerial photographs, study of available maps, logs, and documents that may indicate fault locations at the surface and in the subsurface, and a visual observation of the proposed site. (e) Landfills. Any surface impoundment to be closed as a landfill (where wastes will remain after closure of the impoundment) is subject to the requirements for landfills. (1) Except as provided in subparagraphs (A) and (B) of this paragraph, a landfill may not be located in the 100-year floodplain existing prior to site development except in areas with flood depths less than three feet. Any landfill within the 100-year floodplain must be designed, constructed, operated, and maintained to prevent physical transport of any hazardous waste by a 100-year flood event. (A) The areal expansion of a landfill in a 100-year floodplain may be allowed by the commission if the applicant demonstrates to the satisfaction of the commission that the facility design will prevent the physical transport of any hazardous waste by a 100-year flood event. (B) A new commercial hazardous waste management facility landfill unit may not be located in a 100-year floodplain, unless the applicant demonstrates to the satisfaction of the commission that the facility design will prevent the physical transport of any hazardous waste by a 100-year flood event. (2) A landfill may not be located in wetlands. (3) A landfill may not be located on the recharge zone of a sole-source aquifer. (4) A landfill may not be located in areas overlying regional aquifers unless: (A) it is in an area where the average annual evaporation exceeds average annual rainfall by more than 40 inches and the depth to the regional aquifer is greater than 100 feet from the base of the containment structure; or (B) the regional aquifer is separated from the base of the containment structure by a minimum of ten feet of material with a hydraulic conductivity toward the aquifer not greater than 10 -7 cm/sec or a thicker interval of more permeable material which provides equivalent or greater retardation to pollutant migration. (5) A landfill may not be located in areas where soil unit(s) within five feet of the containment structure have a Unified Soil Classification of GW, GP, GM, GC, SW, SP, or SM, or a hydraulic conductivity greater than 10-5 cm/sec unless: (A) it is in an area where the average annual evaporation exceeds average annual rainfall by more than 40 inches; or (B) the soil unit is not sufficiently thick and laterally continuous to provide a significant pathway for waste migration. (6) A landfill may not be located within 1,000 feet of an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park which is in use at the time the notice of intent to file a permit application is filed with the commission, or if no such notice is filed, at the time the permit application is filed with the commission. The measurement of distances required for a new hazardous waste landfill shall be taken from a perimeter around the proposed new hazardous waste landfill. The perimeter shall be not more than 75 feet from the edge of the proposed new hazardous waste landfill unit. (7) A landfill at which hazardous waste is received for a fee may not be located in the 100-year floodplain of a perennial stream, delineated on a flood map adopted by the Federal Emergency Management Agency after September 1, 1985, as zone A1-99, VO, or V1-30. This provision shall not apply to any facility for which a notice of intent to file an application, or an application, has been filed with the commission as of September 1, 1985. (8) A landfill may not be located in areas of direct drainage within one mile of a lake at its maximum conservation pool level, if the lake is used to supply public drinking water through a public water system, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from a release in such areas. (9) A landfill may not be located in areas of active geologic processes unless the design, construction, and operational features of the facility will prevent adverse effects resulting from the geologic processes. (10) A landfill may not be located within 1,000 feet of an area subject to active coastal shoreline erosion, if the area is protected by a barrier island or peninsula, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from storm surge and erosion or scouring by water. On coastal shorelines which are subject to active shoreline erosion and which are unprotected by a barrier island or peninsula, a separation distance from the shoreline to the facility must be at least 5,000 feet unless the design, construction, and operational features of the facility will prevent adverse effects resulting from storm surge and erosion or scouring by water. (11) A landfill may not be located in the critical habitat of an endangered species of plant or animal unless the design, construction, and operational features of the facility will prevent adverse effects on the critical habitat of the endangered species. (12) A landfill may not be located on a barrier island or peninsula. (13) A landfill may not be located within 30 feet of the upthrown side or 50 feet of the downthrown side of the actual or inferred surface expression of a fault that has reasonably been shown to have caused displacement of shallow Quaternary sediments or of man-made structures, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from fault movement. The presence, and if a fault is found to be present, the width and location of the actual or inferred surface expression of a fault, including both the identified zone of deformation and the combined uncertainties in locating a fault trace, shall be determined by a licensed professional geoscientist or geotechnical engineer. For purposes of fault assessment under this paragraph, depths of shallow sediments to be considered could be as little as 100 feet (for older, slowly accumulated sediments), or as great as 300 feet (for younger, rapidly accumulated sediments). The fault study should include analyses of any electric logs developed for any required subsurface characterization of the site, interpretation of available aerial photographs, study of available maps, logs, and documents that may indicate fault locations at the surface and in the subsurface, and a visual observation of the proposed site. (14) For purposes of this subchapter, any surface impoundment to be closed as a landfill (where wastes will remain after closure of the impoundment) is subject to the requirements for landfills. (f) Injection Wells. The placement of any noncontainerized or bulk liquid hazardous waste in any salt dome formation, salt bed formation, underground mine, or cave is prohibited.</content><note type="source"><p>Source Note: The provisions of this §335.204 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective May 3, 1988, 13 TexReg 1913; amended to be effective November 7, 1991, 16 TexReg 6065; amended to be effective September 1, 2003, 28 TexReg 6915.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scG/s335.205"><num value="335.205">§335.205</num><heading>Prohibition of Permit Issuance</heading><content>(a) The commission shall not issue a permit for any of the following:(1) a new hazardous waste management facility or an areal expansion of an existing facility if the facility or expansion does not meet the requirements of §335.204 of this title (relating to Unsuitable Site Characteristics);(2) a new hazardous waste landfill or the areal expansion of an existing hazardous waste landfill if there is a practical, economic, and feasible alternative to such a landfill that is reasonably available to manage the types and classes of hazardous waste which might be disposed of at the landfill;(3) a new commercial hazardous waste management facility as defined in §335.202 of this title (relating to Definitions) including such facilities that burn or propose to burn waste-derived fuel, as defined in this section, or the subsequent areal expansion of such a facility or unit of that facility if the boundary of the unit is to be located within 1/2 of a mile (2,640 feet) of an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park;(4) a new commercial hazardous waste management facility that is proposed to be located at a distance greater than 1/2 mile (2,640 feet) from an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park unless the applicant demonstrates to the satisfaction of the commission that the facility will be operated so as to safeguard public health and welfare and protect physical property and the environment, at any distance beyond the facility's property boundaries; or(5) a Class I injection well, a proposed hazardous waste management facility other than a Class I injection well, or a capacity expansion of an existing hazardous waste management facility if a fault exists within 2-1/2 miles from the proposed or existing wellbore of the Class I injection well or the area within the cone of influence whichever is greater, or if a fault exists within 3,000 feet of the proposed hazardous waste management facility other than a Class I injection well or of the capacity expansion of an existing hazardous waste management facility unless the applicant demonstrates to the satisfaction of the commission unless previously demonstrated to the commission or to the EPA that:(A) in the case of Class I injection wells, that the fault is not sufficiently transmissive or vertically extensive to allow migration of hazardous constituents out of the injection zone; or(B) in the case of a proposed hazardous waste management facility other than a Class I injection well or for a capacity expansion of an existing hazardous waste management facility, that:(i) the fault has not had displacement within Holocene time, or if faults have had displacement within Holocene time, that no such faults pass within 200 feet of the portion of the surface facility where treatment, storage, or disposal of hazardous waste will be conducted; and(ii) the fault will not result in structural instability of the surface facility or provide for groundwater movement to the extent that there is endangerment to human health or the environment.(b) For a subsequent areal expansion of a new commercial hazardous waste management facility that is required to comply with subsection (a)(3) of this section, distances shall be measured from an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park only if such structure, water supply, or park was in place at the time the distance was certified for the original permit.(c) The measurement of distances required in subsection (a)(1), (3), and (4), and subsection (b) of this section shall be taken toward an established residence, church, school, day care center, surface water body used for a public drinking water supply, or dedicated public park that is in use when the notice of intent to file a permit application is filed with the commission or, if no notice of intent is filed, when the permit application is filed with the commission. The restrictions imposed by subsection (a)(1), (3), and (4), and subsection (b) of this section do not apply to an established residence, church, school, day care center, surface water body used for a public drinking supply, or dedicated public park located within the boundaries of a commercial hazardous waste management facility, or property owned by the permit applicant.(d) The measurement of distances required in subsection (a)(1), (3), and (4), and subsection (b) of this section shall be taken from a perimeter around the proposed hazardous waste management unit. The perimeter shall be not more than 75 feet from the edge of the proposed hazardous waste management unit.(e) Nothing in this subchapter shall be construed to require the commission to issue a permit notwithstanding a finding that the proposed facility would satisfy the requirements of §335.203 of this title (relating to Site Selection to Protect Groundwater or Surface Water) and notwithstanding the absence of site characteristics which would disqualify the site from permitting pursuant to §335.204 of this title.(f) The term "Waste-derived fuel" when used in this section, shall mean any material resulting from the blending or inclusion of hazardous waste that is to be burned for energy recovery. Such fuel does not include material derived from nonhazardous waste such as nonhazardous waste garbage, rubbish, refuse, tires, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility, or other nonhazardous waste solid, liquid, semisolid, or contained gaseous material resulting from industrial, municipal, commercial, mining, or agricultural operations or from community or institutional activities.</content><note type="source"><p>Source Note: The provisions of this §335.205 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective November 7, 1991, 16 TexReg 6065; amended to be effective July 29, 1992, 17 TexReg 5017; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scG/s335.206"><num value="335.206">§335.206</num><heading>Petitions for Rulemaking</heading><content>Local governments may petition the commission for a rule which restricts or prohibits the siting of a new hazardous waste management facility in areas including, but not limited to, those meeting one or more of the characteristics delineated in Texas Health and Safety Code, §361.022, and §335.204 of this title (relating to Unsuitable Site Characteristics). Such petitions shall be submitted in writing and shall comply with the requirements of §20.15 of this title (relating to Petition for Adoption of Rules). No rule adopted by the commission under this section shall affect the siting of a new hazardous waste management facility if an application or a notice of intent to file an application with respect to such facility has been filed with the commission prior to the filing of a petition under this section.</content><note type="source"><p>Source Note: The provisions of this §335.206 adopted to be effective May 28, 1986, 11 TexReg 2347; amended to be effective April 23, 1991, 16 TexReg 2053; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective November 17, 2024, 49 TexReg 8940.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scH"><num value="H">SUBCHAPTER H</num><heading>STANDARDS FOR THE MANAGEMENT OF SPECIFIC WASTES AND SPECIFIC TYPES OF FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.211"><num value="335.211">§335.211</num><heading>Applicability</heading><content>(a) The regulations of this section and §§335.212 - 335.214 of this title (relating to Standards Applicable to Generators and Transporters of Materials Used in a Manner that Constitutes Disposal; Standards Applicable to Storers of Materials That Are To Be Used In a Manner that Constitutes Disposal Who Are Not the Ultimate Users; and Standards Applicable to Users of Materials That Are Used in a Manner that Constitutes Disposal) apply to recyclable materials that are applied to or placed on the land:(1) without mixing with any other substance(s);(2) after mixing or combination with any other substance(s). These materials will be referred to throughout this subpart as materials used in a manner that constitutes disposal.(b) Products produced for the general public's use that are used in a manner that constitutes disposal and that contain recyclable materials are not presently subject to regulation if the recyclable materials have undergone a chemical reaction in the course of producing the product so as to become inseparable by physical means and if such products meet the applicable treatment standards in 40 Code of Federal Regulations (CFR), Part 268, Subpart D (or applicable prohibition levels in 40 CFR §268.32 or Resource Conservation Recovery Act, §3004(d), where no treatment standards have been established) for each recyclable material (i.e., hazardous waste) that they contain, and the recycler complies with 40 CFR §268.7(b)(6). Commercial fertilizers that are produced for the general public's use that contain recyclable materials also are not presently subject to regulation provided they meet these same treatment standards or prohibition levels for each recyclable material that they contain. However, zinc-containing fertilizers using hazardous waste K061 that are produced for the general public's use are not presently subject to regulation.(c) Anti-skid/deicing uses of slags, which are generated from high temperature metals recovery (HTMR) processing of hazardous waste K061, K062, and F006, in a manner constituting disposal are not covered by the exemption in subsection (b) of this section and remain subject to regulation.</content><note type="source"><p>Source Note: The provisions of this §335.211 adopted to be effective May 28, 1986, 11 TexReg 2348; amended to be effective August 30, 1988, 13 TexReg 4072; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective January 8, 2015, 40 TexReg 77.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.212"><num value="335.212">§335.212</num><heading>Standards Applicable to Generators and Transporters of Materials Used in a Manner That Constitutes Disposal</heading><content>Generators and transporters of materials that are used in a manner that constitutes disposal are subject to the applicable requirements of Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste Management in General), Subchapter C of this chapter (relating to Standards Applicable to Generators of Hazardous Waste) and Subchapter D of this chapter (relating to Standards Applicable to Transporters of Hazardous Waste), and the notification requirement under §335.6 of this title (relating to Notification Requirements).</content><note type="source"><p>Source Note: The provisions of this §335.212 adopted to be effective May 28, 1986, 11 TexReg 2348.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.213"><num value="335.213">§335.213</num><heading>Standards Applicable to Storers of Materials That Are To Be Used in a Manner That Constitutes Disposal Who Are Not the Ultimate Users</heading><content>Owners or operators of facilities that store recyclable materials that are to be used in a manner that constitutes disposal, but who are not the ultimate users of the materials, are regulated under all applicable provisions of Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste in General), Subchapter B of this chapter (relating to Hazardous Waste Management-General Provisions), Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities), Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities), Subchapter U of this chapter (relating to Standards for Owners and Operators of Hazardous Waste Facilities Operating under a Standard Permit); Chapter 1 of this title (relating to Purpose of Rules, General Provisions); Chapter 3 of this title (relating to Definitions); Chapter 10 of this title (relating to Commission Meetings); Chapter 20 of this title (relating to Rulemaking); Chapter 37 of this title (relating to Financial Assurance); Chapter 39 of this title (relating to Public Notice); Chapter 40 of this title (relating to Alternative Dispute Resolution Procedure); Chapter 50 of this title (relating to Action on Applications and Other Authorizations); Chapter 55 of this title (relating to Requests for Reconsideration and Contested Case Hearings; Public Comment); Chapter 70 of this title (relating to Enforcement); Chapter 80 of this title (relating to Contested Case Hearings); Chapter 86 of this title (relating to Special Provisions for Contested Case Hearings); Chapter 305 of this title (relating to Consolidated Permits), and the notification requirement under §335.6 of this title (relating to Notification Requirements).</content><note type="source"><p>Source Note: The provisions of this §335.213 adopted to be effective May 28, 1986, 11 TexReg 2348; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective February 21, 2013, 38 TexReg 978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.214"><num value="335.214">§335.214</num><heading>Standards Applicable to Users of Materials That Are Used in a Manner That Constitutes Disposal</heading><content>(a) Owners or operators of facilities that use recyclable materials in a manner that constitutes disposal are regulated under all applicable provisions of Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste Management in General), Subchapter B of this chapter (relating to Hazardous Waste Management--General Provisions), Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities), Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities), Subchapter O of this chapter (relating to Land Disposal Restrictions), Chapter 1 of this title (relating to Purpose of Rules, General Provisions); Chapter 3 of this title (relating to Definitions); Chapter 10 of this title (relating to Commission Meetings); Chapter 20 of this title (relating to Rulemaking); Chapter 37 of this title (relating to Financial Assurance); Chapter 39 of this title (relating to Public Notice); Chapter 40 of this title (relating to Alternative Dispute Resolution); Chapter 50 of this title (relating to Actions on Applications); Chapter 55 of this title (relating to Request for Contested Case Hearings); Chapter 70 of this title (relating to Enforcement); Chapter 80 of this title (relating to Contested Case Hearings); Chapter 86 of this title (relating to Special Provisions for Contested Case Hearings); Chapter 261 of this title (relating to Introductory Provisions); Chapter 277 of this title (relating to Use Determinations for Tax Exemption for Pollution Control Property); Chapter 305 of this title (relating to Consolidated Permits), and the notification requirement under §335.6 of this title (relating to Notification Requirements). These requirements do not apply to products which contain these recyclable materials under the provisions of §335.211(b) of this title (relating to Applicability).(b) The use of waste or used oil or other material, which is contaminated with dioxin or any other hazardous waste (other than a waste identified solely on the basis of ignitability) for dust suppression or road treatment is prohibited.</content><note type="source"><p>Source Note: The provisions of this §335.214 adopted to be effective May 28, 1986, 11 TexReg 2348; amended to be effective March 1, 1996, 21 TexReg 1425; amended to be effective October 19, 1998, 23 TexReg 10878.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.221"><num value="335.221">§335.221</num><heading>Applicability and Standards</heading><content>(a) The following regulations contained in 40 Code of Federal Regulations (CFR) Part 266 (including all appendices to 40 CFR Part 266) are adopted by reference, as amended and adopted in the CFR through April 8, 2008 (73 FR 18970), except as noted in this section:(1) 40 CFR §266.100--Applicability (as amended through July 14, 2006 (71 FR 40254)), except 40 CFR §266.100(c); and reference to "the applicable requirements of subparts A through H, BB, and CC of parts 264 and 265 of this chapter" is changed to "the applicable requirements of §§335.111 of this title (relating to Purpose, Scope, and Applicability), 335.112(a)(1) - (7), (20), and (21) of this title (relating to Standards), 335.151 of this title (relating to Purpose, Scope, and Applicability), and 335.152(a)(1) - (6), (18), and (19) of this title (relating to Standards)";(2) 40 CFR §266.102(a)--Permit Standards for Burners - Applicability, excepting those portions of 40 CFR §266.102(a) containing references to 40 CFR §§264.56(d), 264.71 - 264.72, 264.75 - 264.77, 264.90, 264.101, and 264.142(a)(2);(3) 40 CFR §266.102(b)--Permit Standards for Burners - Hazardous Waste Analysis;(4) 40 CFR §266.102(c)--Permit Standards for Burners - Emission Standards;(5) 40 CFR §266.102(d)--Permit Standards for Burners - Permits;(6) 40 CFR §266.102(e)--Permit Standards for Burners - Operating Requirements (as amended in the Federal Register through July 14, 2006 (71 FR 40254));(7) 40 CFR §266.103 (a)(1) - (3)--Interim Status Standards for Burners - Purpose, Scope, and Applicability--General; Exemptions; and Prohibition on Burning Dioxin-Listed Wastes, respectively, except 40 CFR §266.103(a)(1)(iii) and §266.103(a)(2);(8) 40 CFR §266.103(a)(4)--Interim Status Standards for Burners--Purpose, Scope, and Applicability--Applicability of Part 265 Standards (as amended in the Federal Register through (July 14, 2006 (71 FR 40254))), excepting those portions of 40 CFR §266.103(a)(4) containing references to 40 CFR §§265.56(d), 265.71 - 265.72, 265.75 - 265.77, 265.142(a)(2); facilities qualifying for a corporate guarantee for liability are subject to 40 CFR §265.147(g)(2) and §264.151(h)(2), as amended;(9) 40 CFR §266.103(a)(5) - (6)--Interim Status Standards for Burners - Purpose, Scope, and Applicability: Special Requirements for Furnaces; and Restrictions on Burning Hazardous Waste That Is Not a Fuel;(10) 40 CFR §266.103(b)--Interim Status Standards for Burners - Certification of Precompliance (as amended through (July 14, 2006 (71 FR 40254))), except 40 CFR §266.103(b)(1) and (6);(11) 40 CFR §266.103(c)--Interim Status Standards for Burners - Certification of Compliance (as amended through (July 14, 2006 (71 FR 40254))), except 40 CFR §266.103(c)(3)(i);(12) 40 CFR §266.103(f)--Interim Status Standards for Burners - Start-Up and Shut-Down;(13) 40 CFR §266.103(g)(1) - (2)--Interim Status Standards for Burners - Automatic Waste Feed Cutoff (as amended in the Federal Register through July 14, 2006 (71 FR 40254));(14) 40 CFR §266.103(h) - (l)--Interim Status Standards for Burners: Fugitive Emissions; Changes; Monitoring and Inspections; Recordkeeping; and Closure, respectively, as amended in the Federal Register through April 4, 2006 (71 FR 16862);(15) 40 CFR §266.104--Standards to Control Organic Emissions, except 40 CFR §266.104(h);(16) 40 CFR §266.105--Standards to Control Particulate Matter, except 40 CFR §266.105(d);(17) 40 CFR §266.106--Standards to Control Metals Emissions (as amended in the Federal Register through (July 14, 2006 (71 FR 40254))), except 40 CFR §266.106(i);(18) §266.107--Standards to Control Hydrogen Chloride (HCl) and Chlorine Gas (C12) Emissions, except 40 CFR §266.107(h);(19) 40 CFR §266.108--Small Quantity On-Site Burner Exemption, except §266.108(d), and except that hazardous wastes generated by a very small quantity generator may not be burned in an off-site device under the exemption provided by 40 CFR §266.108;(20) 40 CFR §266.109--Low-Risk Waste Exemption (as amended in the Federal Register through (July 14, 2006 (71 FR 40254)));(21) 40 CFR §266.110--Waiver of DRE Trial Burn for Boilers;(22) 40 CFR §266.111--Standards for Direct Transfer; and(23) 40 CFR §266.112--Regulation of Residues.(b) The following hazardous wastes and facilities are not regulated under this division:(1) used oil burned for energy recovery that is also a hazardous waste solely because it exhibits a characteristic of hazardous waste identified in 40 CFR Part 261, Subpart C, from use versus mixing. Such used oil is subject to regulation by the United States Environmental Protection Agency (EPA) under 40 CFR Part 279 and Chapter 324 of this title (relating to Used Oil Standards). This exception does not apply if the used oil has been made hazardous by mixing with characteristic or listed hazardous waste other than by a generator that meets the conditions for exemption for a very small quantity generator or household generator;(2) hazardous wastes that are exempt from regulation under 40 CFR §261.4 and §335.24(c)(3) - (4) of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials);(3) hazardous wastes generated by a very small quantity generator that meets the conditions for exemption of a very small quantity generator;(4) gas recovered from hazardous or solid waste landfills when such gas is burned for energy recovery; and(5) coke ovens, if the only hazardous waste burned is EPA Hazardous Waste No. K087, decanter tank tar sludge from coking operations.</content><note type="source"><p>Source Note: The provisions of this §335.221 adopted to be effective September 1, 1986, 11 TexReg 3697; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective July 29, 1992, 17 TexReg 5017; amended to be effective March 1, 1996, 21 TexReg 1425; amended to be effective March 6, 1996, 21 TexReg 2400; amended to be effective November 20, 1996, 21 TexReg 10983; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective April 4, 1999, 24 TexReg 2352; amended to be effectiveNovember 15, 2001, 26 TexReg 9135; amended to be effective August 16, 2007, 32 TexReg 5010; amended to be effective October 29, 2009, 34 TexReg 7321; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.222"><num value="335.222">§335.222</num><heading>Management Prior to Burning</heading><content>(a) Generators. Generators of hazardous waste that is burned in a boiler or industrial furnace are subject to the requirements of Subchapter C of this chapter (relating to Standards Applicable to Generators of Hazardous Waste).(b) Transporters. Transporters of hazardous waste that is burned in a boiler or industrial furnace are subject to the requirements of Subchapter D of this chapter (relating to Standards Applicable to Transporters of Hazardous Waste).(c) Storage and processing facilities. The provisions listed under paragraph (1) of this subsection apply to storage or processing by burners and by intermediaries such as processors, blenders, and distributors between the generator and the burner.(1) Owners and operators of facilities that store or process hazardous waste that is burned in a boiler or industrial furnace are subject to the applicable provisions of the following, except as provided by paragraph (2) of this subsection:(A) Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste in General);(B) Subchapter B of this chapter (relating to Hazardous Waste Management General Provisions);(C) Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities), except §335.112(a)(12) - (19) of this title (relating to Standards);(D) Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities), except §335.152(11) - (16) of this title (relating to Standards);(E) Subchapter U of this chapter (relating to Standards for Owners and Operators of Hazardous Waste Facilities Operating under a Standard Permit); and(F) Chapter 305 of this title (relating to Consolidated Permits).(2) Owners and operators of facilities that burn, in an on-site boiler or industrial furnace exempt from regulations under the small quantity burner provisions of 40 Code of Federal Regulations §266.108, only hazardous waste that they generate are exempt from regulation under the provisions listed above in paragraph (1) of this subsection applicable to storage units for those units that store mixtures of hazardous waste and the primary fuel to the boiler or industrial furnace in tanks that feed the fuel mixture directly to the burner. Storage or processing of hazardous waste by such owners and operators prior to mixing with the primary fuel is subject to regulation as prescribed in paragraph (1) of this subsection.</content><note type="source"><p>Source Note: The provisions of this §335.222 adopted to be effective July 29, 1992, 17 TexReg 5017; amended to be effective February 26, 1996, 21 TexReg 1142; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective February 21, 2013, 38 TexReg 978.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.223"><num value="335.223">§335.223</num><heading>Additional Permit Standards for Burners</heading><content>(a) In addition to the permit standards for burners under §335.221(a)(2)-(6) of this title (relating to Applicability and Standards), owners and operators of boilers and industrial furnaces that burn hazardous waste are subject to the following provisions, including the applicable provisions of Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste Management in General) and Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities), as follows:(1) §335.12 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities);(2) §335.15 of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities);(3) §335.153 of this title (relating to Reporting of Emergency Situations by Emergency Coordinator);(4) §335.154 of this title (relating to Reporting Requirements for Owners and Operators);(5) §335.155 of this title (relating to Additional Reports);(6) §335.156 of this title (relating to Applicability of Groundwater Monitoring and Response);(7) §335.167 of this title (relating to Corrective Action for Solid Waste Management Units);(8) §335.178 of this title (relating to Cost Estimate for Closure).(b) For the purposes of permit enforcement, compliance with the operating requirements specified in the permit, pursuant to 40 Code of Federal Regulations (CFR) §266.102, and §335.221(a)(1)-(6) of this title (relating to Applicability and Standards), and subsection (a)(1)-(8) of this section, will be regarded as compliance with 40 CFR §§266.104-266.107. However, evidence that compliance with those permit conditions is insufficient to ensure compliance with the requirements of 40 CFR §§266.104-266.107 may be "good cause" for justifying suspension or revocation of a permit under §305.66 of this title (relating to Permit Denial, Suspension, and Revocation) or may be "good cause" for amendment of the permit under §305.62(d)(2) of this title (relating to Amendment).</content><note type="source"><p>Source Note: The provisions of this §335.223 adopted to be effective July 29, 1992, 17 TexReg 5017.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.224"><num value="335.224">§335.224</num><heading>Additional Interim Status Standards for Burners</heading><content>In addition to the interim status standards for burners under §335.221(a)(7) - (14) of this title (relating to Applicability and Standards), owners and operators of "existing" boilers and industrial furnaces that burn hazardous waste are subject to the following provisions, including the applicable provisions of Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste Management in General) and Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities), as follows: (1) If a boiler or industrial furnace is located at a facility that already has a permit or interim status, then the owner or operator must comply with the applicable rules and regulations dealing with permit amendments or modifications under Chapter 305 of this title (relating to Consolidated Permits) and 40 Code of Federal Regulations (CFR) §270.42, or revisions of applications for hazardous waste permits and changes during interim status under Chapter 305 of this title and 40 CFR §270.72. (2) The requirements of this section and §335.221(a)(7) - (14) of this title do not apply to hazardous wastes and facilities exempt under §335.221(b) of this title or exempt under 40 CFR §266.108, as adopted under §335.221(a)(19) of this title. (3) Owners and operators of existing boilers and industrial furnaces that burn hazardous waste are subject to the following provisions: (A) §335.12 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities); (B) §335.15 of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities); (C) §335.113 of this title (relating to Reporting of Emergency Situations by Emergency Coordinator); (D) §335.115 of this title (relating to Additional Reports); (E) §335.127 of this title (relating to Cost Estimate for Closure); (4) The owner or operator must provide complete and accurate information specified in 40 CFR §266.103(b)(2) to the executive director on or before August 21, 1992, and must establish limits for the operating parameters specified in 40 CFR §266.103(b)(3). Such information is termed a "certification of precompliance" and constitutes a certification that the owner or operator has determined that, when the facility is operated within the limits specified in 40 CFR §266.103(b)(3), the owner or operator believes that, using best engineering judgment, emissions of particulate matter, metals, HCl and C12 are not likely to exceed the limits provided under 40 CFR §§266.105, 266.106, and 266.107. The facility may burn hazardous waste only under the operating conditions that the owner or operator establishes under 40 CFR §266.103(b)(3) until the owner or operator submits a revised certification of precompliance under 40 CFR §266.103(b)(8) or a certification of compliance under 40 CFR §266.103(c), or until a permit is issued. (5) On or before August 21, 1992, the owner or operator must submit a notice for publication in a newspaper regularly published, and generally circulated within the county and area wherein the facility is located and send a copy of the notice of those persons and entities listed under §39.413 of this title (relating to Mailed Notice). The owner and operator must provide to the executive director, with the certification of precompliance, evidence of submittal of the notice for publication. The public notice requirements of this section do not apply to recertifications under 40 CFR §266.103(b)(8). The notice shall be entitled "Notice of Certification of Precompliance with Hazardous Waste Burning Requirements of 40 Code of Federal Regulations §266.103(b) and 30 TAC §335.224(4) and (5)." An owner or operator who satisfied the public notice requirements under 40 CFR §266.103(b)(6) will be considered compliant with this paragraph provided that the owner or operator submits evidence of such public notice on or before 30 days after the effective date of this paragraph. The notice shall include: (A) name and address of the owner and operator of the facility as well as the location of the device burning hazardous waste; (B) date that the certification of precompliance was submitted to the executive director; (C) brief description of the regulatory process required to comply with the interim status requirements of this section, §335.221(a)(7) - (14) of this title, and 40 CFR §266.103, including required emissions testing to demonstrate conformance with emissions standards for organic compounds, particulate matter, metals, and HCl and Cl2; (D) types and quantities of hazardous waste burned including, but not limited to, source(s), whether solids or liquids, as well as an appropriate description(s) of the waste(s); (E) type of device(s) in which the hazardous waste is burned including a physical description and maximum production rate of each device; (F) types and quantities per year of other fuels and industrial furnace feedstocks fed to each unit; (G) brief description of the basis for this certification of precompliance as specified in 40 CFR §266.103(b)(2); (H) locations where the record for the facility can be viewed and copied by interested parties. These records and locations shall at a minimum include: (i) The administrative record kept by the local Texas Commission on Environmental Quality (TCEQ) regional office; and (ii) The Boiler and Industrial Furnace (BIF) correspondence file kept at the facility site where the device is located. The correspondence file must include all correspondence between the facility and the Regional Director of the United States Environmental Protection Agency (EPA), state and local regulatory officials, including copies of all certifications and notifications, such as the precompliance certification, precompliance public notice, notice of compliance testing, compliance test report, compliance certification, time extension requests and approvals or denials, enforcement notifications of violations, and copies of EPA and state site visit reports submitted to the owner or operator. (I) notification of the establishment by the facility owner or operator of a facility mailing list whereby interested parties shall notify the facility owner or operator that they wish to be placed on the mailing list to receive future information and notices about this facility; and (J) location (mailing address) of the local TCEQ regional office, where further information can be obtained on TCEQ regulation of hazardous waste burning. (6) On or before August 21, 1992, the owner or operator shall conduct emissions testing to document compliance with the emissions standards of 40 CFR §§266.103(a)(5)(i)(D), 266.104(b) - (e), and 266.105 - 266.107, under the procedures prescribed by this paragraph and paragraphs (7) and (8) of this section and 40 CFR §266.103(c), except under extensions of time provided by 40 CFR §266.103(c)(7). Based on the compliance test, the owner or operator shall submit to the executive director a complete and accurate "certification of compliance," in accordance with 40 CFR §266.103(c)(4), with those emission standards establishing limits on the operating parameters specified in 40 CFR §266.103(c)(1). In accordance with paragraphs (12) and (13) of this section, the executive director may reject the certification of compliance or require additional information to be submitted within specified time frames. (7) Compliance testing must be conducted under conditions for which the owner or operator has submitted a certification of precompliance under 40 CFR §266.103(b) and paragraphs (4) - (5) of this section, and under conditions established in the notification of compliance testing required by 40 CFR §266.103(c)(2). The owner and operator may seek approval on a case-by-case basis to use compliance test data from one unit in lieu of testing a similar on-site unit. To support the request, the owner or operator must provide a comparison of the hazardous waste burned and other feedstreams, and the design, operation, and maintenance of both the tested unit and the similar unit. The director shall provide a written approval to use compliance test data in lieu of testing a similar unit if he finds that the hazardous wastes, the devices, and the operating conditions are sufficiently similar, and the data from the other compliance test is adequate to meet the requirements of §266.103(c). (8) If the owner or operator chooses to submit a revised certification of compliance (recertification of compliance) under 40 CFR §266.103(c)(8), or if the owner or operator is required to submit a recertification of compliance under paragraphs (9) or (11) of this section, then the owner or operator shall submit the recertification of compliance to the executive director under the procedures in 40 CFR §266.103(c)(8)(i) - (iv). In accordance with paragraphs (12) and (13) of this section, the executive director may reject the recertification of compliance or require additional information to be submitted within specified time frames. (9) The owner or operator must conduct compliance testing and submit to the executive director a recertification of compliance under the provisions of paragraph (8) of this section and 40 CFR §266.103(c), within 150 days of rejection by the executive director under this paragraph and paragraphs (6) and (8) of this section. In accordance with paragraphs (12) and (13) of this section, the executive director may reject the recertification of compliance or require additional information to be submitted within specified time frames. Except for the activities necessary for the owner or operator to conduct the compliance testing in accordance with 40 CFR §266.103(c)(8)(i) - (iv), and except for a rejection by the executive director of a recertification of compliance which was voluntarily submitted by the owner or operator pursuant to paragraph (8) of this section, upon rejection by the executive director and until a subsequent recertification of compliance is approved under paragraph (8) of this section, the owner or operator shall not burn hazardous waste in the unit for which a certification of compliance or recertification of compliance was rejected. (10) Except for a rejection by the executive director of a recertification of compliance which was voluntarily submitted by the owner or operator pursuant to paragraph (8) of this section, upon receipt of the third rejection by the executive director of a certification of compliance and/or recertification of compliance for the burning of hazardous waste in a boiler or industrial furnace, the owner or operator shall stop burning hazardous waste in the unit for which the certification and/or recertification were rejected, begin closure activities under 40 CFR §266.103(l), and shall not resume the burning of hazardous waste except under an operating permit issued under Chapter 305 of this title; (11) Notwithstanding any requirement for a recertification under paragraph (9) of this section, the owner or operator must conduct compliance testing and submit to the executive director a recertification of compliance under the provisions of paragraph (8) of this section and 40 CFR §266.103(c) within five years from submitting the previous certification or recertification (excluding recertification(s) submitted under paragraph (9) of this section). If the owner or operator seeks to recertify compliance under new operating conditions, then the owner or operator must comply with the requirements of paragraph (8) of this section. In accordance with paragraphs (12) and (13) of this section, the executive director may reject the recertification of compliance or require additional information to be submitted within specified time frames. (12) The executive director may reject certifications or recertifications of compliance based on the failure of the owner or operator to meet the substantive requirements under 40 CFR §266.103 or this section, including, but not limited to, the following: (A) incorrect or inappropriate calculations or other mathematical techniques which lead to significant effects on operating condition limitations; (B) incorrect or inappropriate sampling, physical measurements, or analysis techniques which lead to significant effects on operating condition limitations; (C) equipment failure or malfunction during the compliance test which leads to inadequate results or incorrect results which significantly affects the limits on operating conditions; (D) inappropriate feed rates of waste, raw production materials, and/or fuels which leads to significant effects on operating condition limitations; (E) failure to operate the compliance test under steady-state conditions; or (F) other significant deficiencies which, in the opinion of the executive director will lead to endangerment to public health and welfare or insufficient protection of public property or the environment. (13) The owner or operator may appeal to the commission any rejection of a certification or recertification by the executive director. Owners and operators who appeal to the commission any rejection of a certification or recertification by the executive director may continue operations under the rejected certification or recertification until the rejection is upheld by the commission. (14) If the owner or operator does not comply with the interim status compliance schedule provided by paragraphs (4) - (6), (9), or (11) of this section, hazardous waste burning must terminate on the date of the deadline, closure activities must begin under 40 CFR §266.103(l), and hazardous waste burning may not resume except under an operating permit issued under Chapter 305 of this title. For purposes of compliance with the closure provisions of paragraph (4) of this subsection and 40 CFR §265.112(d)(2) and §265.113 (as adopted in §335.112(a)(6) of this title (relating to Standards)) the boiler or industrial furnace has received "the known final volume of hazardous waste" on the date that the deadline is missed. (15) During the compliance test required by paragraph (7) of this section and 40 CFR §266.103(c)(3), and upon certification of compliance under 40 CFR §266.103(c), a boiler or industrial furnace must be operated with a functioning system that automatically cuts off the hazardous waste feed when the applicable operating conditions specified in 40 CFR §266.103(c)(1)(i) and (v) - (xiii) deviate from those established in the certification of compliance, and the boiler or industrial furnace must be operated in accordance with 40 CFR §266.103(g)(1) - (2).</content><note type="source"><p>Source Note: The provisions of this §335.224 adopted to be effective July 29, 1992, 17 TexReg 5017; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective February 26, 1996, 21 TexReg 1142; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.225"><num value="335.225">§335.225</num><heading>Additional Standards for Direct Transfer</heading><content>(a) The requirements of this section and 40 Code of Federal Regulations (CFR) §266.111, adopted by reference at §335.221(a)(22) of this title (relating to Applicability and Standards), apply to owners and operators of boilers and industrial furnaces subject to 40 CFR §266.102 or §266.103, if hazardous waste is directly transferred from a transport vehicle to a boiler or industrial furnace without the use of a storage unit.(b) The direct transfer of hazardous waste to a boiler or industrial furnace shall be conducted so that it does not adversely affect the capability of the boiler or industrial furnace to meet required standards.</content><note type="source"><p>Source Note: The provisions of this §335.225 adopted to be effective July 29, 1992, 17 TexReg 5017; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.241"><num value="335.241">§335.241</num><heading>Applicability and Requirements</heading><content>(a) The regulations of this section apply to recyclable materials that are reclaimed to recover economically significant amounts of gold, silver, platinum, palladium, iridium, osmium, rhodium, ruthenium, or any combination of these.(b) Persons who generate, transport, or store recyclable materials that are regulated under this section are subject to the following requirements:(1) §335.4 of this title (relating to General Prohibitions);(2) §335.6 of this title (relating to Notification Requirements);(3) §§335.9 - 335.12 of this title (relating to Shipping and Reporting Procedures Applicable to Generators; Shipping and Reporting Procedures Applicable to Generators of Municipal Hazardous Waste or Class 1 Waste; Shipping Requirements for Transporters of Municipal Hazardous Waste or Class 1 Waste; Shipping Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities), §335.54 of this title (relating to Hazardous Waste Manifest), 40 Code of Federal Regulations (CFR) §265.71 and §265.72 as adopted by reference under §335.112(a)(4) of this title (relating to Standards), and 40 CFR §264.71 and §264.72 as adopted by reference under §335.152(a)(4) of this title (relating to Standards), for generators, transporters, or persons who store, as applicable; and(4) For precious metals exported to or imported from other countries for recovery, 40 Code of Federal Regulations (CFR) Part 262, Subpart H and §265.12 adopted by reference under §335.112 of this title (relating to Standards).(c) Persons who store recyclable materials that are regulated under this section shall keep the following records to document that they are not accumulating these materials speculatively, as defined in §335.17 of this title (relating to Special Definitions for Recyclable Materials and Nonhazardous Recyclable Materials):(1) records showing the volume of these materials stored at the beginning of the calendar year;(2) the amount of these materials generated or received during the calendar year; and(3) the amount of materials remaining at the end of the calendar year.(d) Recyclable materials that are regulated under this section that are accumulated speculatively, as defined in §335.17 of this title (relating to Special Definitions for Recyclable Materials and Nonhazardous Recyclable Materials), are subject to all applicable provisions of this chapter (excluding this subchapter), Chapter 1 of this title (relating to Purpose of Rules, General Provisions); Chapter 3 of this title (relating to Definitions); Chapter 10 of this title (relating to Commission Meetings); Chapter 20 of this title (relating to Rulemaking); Chapter 37 of this title (relating to Financial Assurance); Chapter 39 of this title (relating to Public Notice); Chapter 40 of this title (relating to Alternative Dispute Resolution); Chapter 50 of this title (relating to Actions on Applications); Chapter 55 of this title (relating to Request for Contested Case Hearings); Chapter 70 of this title (relating to Enforcement); Chapter 80 of this title (relating to Contested Case Hearings); Chapter 86 of this title (relating to Special Provisions for Contested Case Hearings; Chapter 261 of this title (relating to Introductory Provisions); Chapter 277 of this title (relating to Use Determinations for Tax Exemption for Pollution Control Property); and Chapter 305 of this title (relating to Consolidated Permits).</content><note type="source"><p>Source Note: The provisions of this §335.241 adopted to be effective May 28, 1986, 11 TexReg 2349; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.251"><num value="335.251">§335.251</num><heading>Applicability and Requirements</heading><content>(a) The regulations of this section adopt by reference 40 Code of Federal Regulations (CFR) Part 266, Subpart G as amended in the Federal Register through November 28, 2016 (81 FR 85732). This section applies to persons who reclaim (including regeneration) spent lead-acid batteries that are recyclable materials (spent batteries). Persons who generate, transport, or collect spent batteries, who regenerate spent batteries, who store spent batteries that are to be regenerated, or who store spent batteries but do not reclaim them (other than spent batteries that are to be regenerated), are not subject to regulation under this chapter, except that §335.24(h) of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials) applies; and are not subject to regulation under Chapter 1 of this title (relating to Purpose of Rules, General Provisions); Chapter 3 of this title (relating to Definitions); Chapter 10 of this title (relating to Commission Meetings); Chapter 20 of this title (relating to Rulemaking); Chapter 37 of this title (relating to Financial Assurance); Chapter 39 of this title (relating to Public Notice); Chapter 40 of this title (relating to Alternative Dispute Resolution Procedure); Chapter 50 of this title (relating to Action on Applications and Other Authorizations); Chapter 55 of this title (relating to Requests for Contested Case Hearings; Public Comment); Chapter 70 of this title (relating to Enforcement); Chapter 80 of this title (relating to Contested Case Hearings); Chapter 86 of this title (relating to Special Provisions for Contested Case Hearings); or Chapter 305 of this title (relating to Consolidated Permits). Such persons, however, remain subject to the requirements of the Texas Water Code, Chapter 26.(b) Owners or operators of facilities that store spent lead-acid batteries before reclaiming them (other than spent batteries that are to be regenerated) are subject to the following requirements:(1) all applicable provisions in Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste in General), Subchapter B of this chapter (relating to Hazardous Waste Management General Provisions), Subchapter E of this chapter (relating to Interim Standards of Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities), Subchapter F of this chapter (relating to Permitting Standards of Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities), and Subchapter U of this chapter (relating to Standards for Owners and Operators of Hazardous Waste Facilities Operating under a Standard Permit), except for the requirements in §335.12 of this title (relating to Shipping Requirements Applicable to Owners or Operators of Treatment, Storage, or Disposal Facilities) and 40 CFR §265.13; and(2) all applicable provisions in Chapters 1, 3, 10, 20, 37, 39, 40, 50, 55, 70, 80, and 305 of this title.(c) Persons who export spent batteries for reclamation in a foreign country where they will be reclaimed through regeneration or any other means are not subject to the requirements of Subchapter C of this chapter (relating to Standards Applicable to Generators of Hazardous Waste), except for §335.53(a) and (g) of this title (relating to General Standards Applicable to Generators of Hazardous Waste); Subchapter D of this chapter (relating to Standards Applicable to Transporters of Hazardous Waste), except for §335.91(e) of this title (relating to Scope); Subchapter E of this chapter (relating to Interim Standards of Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities); Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities); or Subchapter O of this chapter (relating to Land Disposal Restrictions), or Chapter 1, 3, 10, 20, 37, 39, 40, 50, 55, 70, 80, 86, or 305 of this title. Such persons must comply with §335.504 of this title (relating to Hazardous Waste Determination).(d) Persons who transport spent batteries in the United States to export them for reclamation in a foreign country where they will be reclaimed through regeneration or any other means are not subject to the requirements of Subchapter C of this chapter; Subchapter D of this chapter, except for §335.91(e) of this title; Subchapter E of this chapter; Subchapter F of this chapter; or Subchapter O of this chapter, or Chapter 1, 3, 10, 20, 37, 39, 40, 50, 55, 70, 80, 86, or 305 of this title. Such persons, however, remain subject to the requirements of §335.91(e) of this title.(e) Persons who import spent batteries from a foreign country and store these spent batteries, but are not the reclaimer, and where the spent battery will be reclaimed other than through regeneration, are not subject to the requirements of Subchapter C of this chapter, except for §335.53(a) and (g) of this title; Subchapter D of this chapter, except for §335.91(e) of this title; Subchapter E of this chapter; Subchapter F of this chapter, or Chapter 1, 3, 10, 37, 39, 40, 50, 55, 70, 80, 86, or 305 of this title. Such persons must comply with §335.504 of this title, and applicable provisions of Subchapter O of this chapter.(f) Persons who import spent batteries from a foreign country and store these spent batteries before reclaiming them, and where the spent battery will be reclaimed other than through regeneration, are not subject to the requirements of Subchapter C of this chapter, except for §335.53(a) and (g) of this title; Subchapter D of this chapter, except for §335.91(e) of this title; Subchapter E of this chapter; Subchapter F of this chapter, or Chapter 1, 3, 10, 37, 39, 40, 50, 70, 80, 86, or 305 of this title. Such persons must comply with §335.504 of this title, and applicable provisions of Subchapter O of this chapter.(g) Persons who import spent batteries from a foreign country and do not store these spent before reclaiming them, and where they will be reclaimed other than through regeneration, are not subject to the requirements of Subchapter C of this chapter, except for §335.53(a) and (g) of this title; Subchapter D of this chapter, except for §335.91(e) of this title; Subchapter E of this chapter; Subchapter F of this chapter, or Chapter 1, 3, 10, 37, 39, 40, 50, 70, 80, 86, or 305 of this title. Such persons must comply with §335.504 of this title, and applicable provisions of Subchapter O of this chapter.</content><note type="source"><p>Source Note: The provisions of this §335.251 adopted to be effective May 28, 1986, 11 TexReg 2349; amended to be effective July 14, 1987, 12 TexReg 2106; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective February 21, 2013, 38 TexReg 978; amended to be effective June 11, 2020, 45 TexReg 3780; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.261"><num value="335.261">§335.261</num><heading>Universal Waste Rule</heading><content>(a) This section establishes requirements for managing universal wastes as defined in this section, and provides an alternative set of management standards in lieu of regulation, except as provided in this section, under all otherwise applicable chapters under 30 Texas Administrative Code. Except as provided in subsection (b) of this section, 40 Code of Federal Regulations (CFR) Part 273 is adopted by reference as amended in the Federal Register through December 9, 2019 (84 FR 67202).(b) 40 CFR Part 273, except 40 CFR §§273.1, 273.20, 273.39(a) and (b), 273.40, 273.56, 273.62(a), and 273.70, is adopted subject to the following changes:(1) The term "regional administrator" is changed to "executive director" or "commission" consistent with the organization of the commission as set out in the Texas Water Code, Chapter 5.(2) The terms "U.S. Environmental Protection Agency" and "EPA" are changed to "the Texas Commission on Environmental Quality," "the agency," or "the commission" consistent with the organization of the commission as set out in Texas Water Code, Chapter 5. This paragraph does not apply to 40 CFR §273.32(a)(3) or §273.52 or to references to the following: "EPA Acknowledgment of Consent" or "EPA Identification Number."(3) The term "treatment" is changed to "processing."(4) The term "universal waste" is changed to "universal waste as defined under §335.261(b)(19)(F) of this title (relating to Universal Waste Rule)."(5) The term "this part" is changed to "Chapter 335, Subchapter H, Division 5 of this title (relating to Universal Waste Rule)."(6) In 40 CFR §273.2(a) and (b), references to "40 CFR Part 266, Subpart G," are changed to "§335.251 of this title (relating to Applicability and Requirements)."(7) In 40 CFR §273.2(b)(2), the reference to "part 261 of this chapter" is changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(8) In 40 CFR §273.3(b)(1), the reference to "40 CFR §262.70" is changed to "§335.57 of this title (relating to Farmers)." Also, the phrase "(40 CFR §262.70 addresses pesticides disposed of on the farmer's own farm in a manner consistent with the disposal instructions on the pesticide label, providing the container is triple rinsed in accordance with 40 CFR §261.7(b)(3))" is deleted.(9) In 40 CFR §273.3(b)(2), the reference to "40 CFR parts 260 through 272" is changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(10) In 40 CFR §273.3(b)(3), the reference to "part 261 of this chapter" is changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(11) In 40 CFR §273.3(d)(1)(i) and (ii), references to "40 CFR §261.2" are changed to "§335.1 of this title (relating to Definitions)."(12) In 40 CFR §273.4(a), the reference to "§273.9" as it relates to the definition of "mercury-containing equipment" is amended to include the commission definition of "thermostats" as contained in §335.261(b)(19)(E) of this title (relating to Universal Waste Rule) and in 40 CFR §273.4(b)(1), the reference to "part 261 of this chapter" is changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(13) In 40 CFR §273.5(b)(1), the reference to "part 261 of this chapter" is changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(14) In 40 CFR §273.6(b)(1), the reference to "part 261 of this chapter" is changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(15) In 40 CFR §273.6(b)(2), the references to "part 261, subpart C, of this chapter" and "part 261, subpart D, of this chapter" are changed to "Chapter 335, Subchapter R of this title (relating to Waste Classification)."(16) In 40 CFR §273.6(b)(3), the reference to "§261.7 of this chapter" is changed to "§335.41(f) of this title (relating to Purpose, Scope and Applicability)."(17) In 40 CFR §273.8(a)(1), the reference to "40 CFR §261.4(b)(1)" is changed to "§335.1 and §335.402(5) of this title (relating to Definitions; and Definitions)" and the reference to "§273.9" is changed to "§335.261(b)(19)(F) of this title (relating to Universal Waste Rule)."(18) In 40 CFR §273.8(a)(2), the reference to "40 CFR §262.14 " is changed to "40 CFR §262.14 as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste) " and the reference to "§273.9" is changed to "§335.261(b)(19)(F) of this title (relating to Universal Waste Rule)."(19) In 40 CFR §273.9, the following definitions are changed to the meanings described in this paragraph.(A) Destination facility--A facility that treats, disposes, or recycles a particular category of universal waste, except those management activities described in 40 CFR §273.13(a) and (c) and 40 CFR §273.33(a) and (c), as adopted by reference in this section. A facility at which a particular category of universal waste is only accumulated is not a destination facility for purposes of managing that category of universal waste.(B) Generator--Any person, by site, whose act or process produces hazardous waste identified or listed in 40 CFR Part 261 or whose act first causes a hazardous waste to become subject to regulation. (C) Large quantity handler of universal waste--A universal waste handler (as defined in this section) who accumulates at any time 5,000 kilograms or more total of universal waste (as defined in this section), calculated collectively. This designation as a large quantity handler of universal waste is retained through the end of the calendar year in which 5,000 kilograms or more total universal waste is accumulated.(D) Small quantity handler of universal waste--A universal waste handler (as defined in this section) who does not accumulate at any time 5,000 kilograms or more total of universal waste (as defined in this section), calculated collectively.(E) Thermostat--A temperature control device that contains metallic mercury in an ampule attached to a bimetal sensing element, and mercury-containing ampules that have been removed from these temperature control devices in compliance with the requirements of 40 CFR §273.13(c)(2) or §273.33(c)(2) as adopted by reference in this section.(F) Universal waste--Any of the following hazardous wastes that are subject to the universal waste requirements of this section:(i) batteries, as described in 40 CFR §273.2;(ii) pesticides, as described in 40 CFR §273.3;(iii) mercury-containing equipment, including thermostats, as described in 40 CFR §273.4;(iv) paint and paint-related waste, as described in §335.262(b) of this title (relating to Standards for Management of Paint and Paint-Related Waste); (v) lamps, as described in 40 CFR §273.5; and (vi) aerosol cans, as described in 40 CFR §273.6.(20) In 40 CFR §273.10, the reference to "40 CFR §273.9" is changed to "§335.261(b)(19)(D) of this title (relating to Universal Waste Rule)."(21) 40 CFR §273.11(b) is changed to read as follows: "Prohibited from diluting or treating universal waste, except when responding to releases as provided in 40 CFR §273.17; managing specific wastes as provided in 40 CFR §273.13; or crushing lamps under the control conditions of §335.261(e) of this title (relating to Universal Waste Rule)."(22) In 40 CFR §273.13(a)(3)(i), the reference to "40 CFR parts 260 through 272" and the reference to "40 CFR part 262" are changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(23) In 40 CFR §273.13(c)(2)(iii) and (iv), references to "40 CFR parts 260 through 272 " are changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(24) In 40 CFR §273.13(d)(1), the phrase "adequate to prevent breakage" is changed to "adequate to prevent breakage, except as specified in §335.261(e) of this title (relating to Universal Waste Rule)."(25) In 40 CFR §273.13(e)(4)(iv), the reference to "40 CFR 262.14, 262.15, 262.16, or 262.17" is changed to "§335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste)."(26) In 40 CFR §273.13(e)(4)(v), the reference to "40 CFR 262.11" is changed to "§335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste)" and the reference to "40 CFR parts 260 through 272" and the reference to "40 CFR part 262" are changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)." (27) In 40 CFR §273.17(b), the reference to "40 CFR parts 260 through 272" and the reference to "40 CFR part 262" are changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(28) In 40 CFR §273.30, the reference to "§273.9" is changed to "§335.261(b)(19)(C) of this title (relating to Universal Waste Rule)."(29) 40 CFR §273.31(b) is changed to read as follows: "Prohibited from diluting or treating universal waste, except when responding to releases as provided in 40 CFR §273.37; managing specific wastes as provided in 40 CFR §273.33; or crushing lamps under the control conditions of §335.261(e) of this title (relating to Universal Waste Rule)."(30) In 40 CFR §273.33(a)(3)(i), the reference to "40 CFR parts 260 through 272" and the reference to "40 CFR part 262" are changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(31) In 40 CFR §273.33(c)(2)(iii) and (iv), the references to "40 CFR parts 260 through 272 " are changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(32) In 40 CFR §273.33(c)(4)(i), the reference, "40 CFR part 261, subpart C," is changed to "Chapter 335, Subchapter R of this title (relating to Waste Classification)."(33) In 40 CFR §273.33(c)(3)(ii), the reference, "40 CFR parts 260 through 272," is changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(34) In 40 CFR §273.33(d)(1), the phrase "adequate to prevent breakage" is changed to "adequate to prevent breakage, except as specified in §335.261(e) of this title (relating to Universal Waste Rule)."(35) In 40 CFR §273.33(e)(4)(iv), the reference to "40 CFR 262.14, 262.15, 262.16, or §262.17" is changed to "§335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste)."(36) In 40 CFR §273.33(e)(4)(v), the reference to "40 CFR 262.11" is changed to "§335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste)" and the reference to "40 CFR parts 260 through 272" and the reference to "40 CFR part 262" are changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(37) In 40 CFR §273.37(b), the reference to "40 CFR parts 260 through 272" and the reference to "40 CFR part 262" are changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(38) In 40 CFR §273.52(a), the reference to "40 CFR part 262" is changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(39) In 40 CFR §273.52(b), the reference to "40 CFR part 262" is changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(40) In 40 CFR §273.54(b), the reference to "40 CFR parts 260 through 272" and the reference to "40 CFR part 262" are changed to "Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste)."(41) In 40 CFR §273.60(a), the reference to "§273.9" is changed to "§335.261(b)(19)(A) of this title (relating to Universal Waste Rule)" and the reference to "parts 264, 265, 266, 268, 270, and 124 of this chapter" is changed to " 30 Texas Administrative Code (relating to Environmental Quality)."(42) In 40 CFR §273.60(b), the reference to "40 CFR §261.6(c)(2)" is changed to "§335.24 of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials)."(43) In 40 CFR §273.80(a), the reference to "40 CFR §260.20 and §260.23" is changed to "§20.15 of this title (relating to Petition for Adoption of Rules) and §335.261(c) of this title (relating to Universal Waste Rule)."(44) In 40 CFR §273.80(b), the reference to "40 CFR §260.20(b)" is changed to "§20.15 of this title (relating to Petition for Adoption of Rules)."(45) In 40 CFR §273.81(a), the reference to "40 CFR §260.10" is changed to "§335.1 of this title (relating to Definitions) and the reference to "§273.9" is changed to "§335.261(b)(19)(F) of this title (relating to Universal Waste Rule)."(c) Except as provided in paragraph (4) of this subsection, any person seeking to add a hazardous waste or a category of hazardous waste to the universal waste rule may file a petition for rulemaking under this section, §20.15 of this title, and 40 CFR Part 273, Subpart G as adopted by reference in this section.(1) To be successful, the petitioner must demonstrate to the satisfaction of the commission that regulation under the universal waste rule: is appropriate for the waste or category of waste; will improve management practices for the waste or category of waste; and will improve implementation of the hazardous waste program. The petition must include the information required by §20.15 of this title. The petition should also address as many of the factors listed in 40 CFR §273.81 as are appropriate for the waste or category of waste addressed in the petition.(2) The commission will grant or deny a petition using the factors listed in 40 CFR §273.81. The decision will be based on the commission's determinations that regulation under the universal waste rule is appropriate for the waste or category of waste, will improve management practices for the waste or category of waste, and will improve implementation of the hazardous waste program.(3) The commission may request additional information needed to evaluate the merits of the petition. (4) Hazardous waste pharmaceuticals are regulated under Subchapter W of this chapter (relating to Management Standards for Hazardous Waste Pharmaceuticals) and may not be added as a category of hazardous waste for management under this section.(d) Any waste not qualifying for management under this section must be managed in accordance with applicable state regulations.(e) Crushing lamps is permissible only in a crushing system for which the following control conditions are met:(1) an exposure limit of no more than 0.05 milligrams of mercury per cubic meter is demonstrated through sampling and analysis using Occupational Safety and Health Administration (OSHA) Method ID-140 or National Institute for Occupational Safety and Health Method Number 6009, based on an eight-hour time-weighted average of samples taken at the breathing zone height near the crushing system operating at the maximum expected level of activity;(2) compliance with the notification requirements of §106.262 of this title (relating to Facilities (Emission and Distance Limitations) (Previously SE 118)) is demonstrated;(3) documentation of the demonstrations under paragraphs (1) and (2) of this subsection is provided in a written report to the executive director; and(4) the executive director approves the crushing system in writing.</content><note type="source"><p>Source Note: The provisions of this §335.261 adopted to be effective July 16, 1997, 22 TexReg 6457; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective October 24, 1999, 24 TexReg 9293; amended to be effective April 30, 2000, 25 TexReg 3547; amended to be effective August 3, 2006, 31 TexReg 6048; amended to be effective October 29, 2009, 34 TexReg 7321; amended to be effective January 8, 2015, 40 TexReg 77; amended to be effective June 11, 2020, 45 TexReg 3780; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.262"><num value="335.262">§335.262</num><heading>Standards for Management of Paint and Paint-Related Waste</heading><content>(a) This section establishes requirements for managing paint and paint-related waste as described in subsection (b) of this section, and provides an alternative set of management standards in lieu of regulation under other portions of this chapter not otherwise referenced under this section.(b) Paint and paint-related waste is used or unused paint or paint-related waste which is "hazardous waste" as defined under §335.1 of this title (relating to Definitions), as determined under §335.504 of this title (relating to Hazardous Waste Determination). Paint is a pigmented or unpigmented mixture of binder and suitable liquid which forms a closely adherent coating when spread on a surface. Paint-related waste is material contaminated with paint that results from the packaging of paint, wholesale and retail operations, paint manufacturing, and paint application or removal activities, or a material derived from the reclamation of paint-related wastes that is recycled in a manner other than burning for energy recovery or used in a manner constituting disposal.(c) Except as otherwise provided in this section, the following definitions and requirements apply to persons managing paint and paint-related wastes:(1) Those requirements which apply to universal wastes in general and the definitions under the following regulations, as adopted by reference under §335.261 of this title (relating to Universal Waste Rule): 40 Code of Federal Regulations (CFR) §§273.5, 273.6, 273.10 - 273.12, 273.15 - 273.20, 273.30 - 273.32, 273.35 - 273.40, 273.50 - 273.56, 273.60 - 273.62, and 273.70;(2) In addition to the requirements referenced under paragraph (1) of this subsection, small quantity handlers and large quantity handlers of universal waste must manage paint and paint-related waste in accordance with §335.4 of this title (relating to General Prohibitions). The paint and paint-related waste must be contained in one or more of the following:(A) a container that remains closed, except when necessary to add or remove waste;(B) a container that is structurally sound, compatible with the waste, and that lacks evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions; or(C) a container that does not meet the requirements of subparagraphs (A) and (B) of this paragraph, provided that the unacceptable container is overpacked in a container that does meet the requirements of subparagraphs (A) and (B) of this paragraph; or(D) a tank that meets the requirements of 40 CFR Part 265, Subpart J, except for 40 CFR §§265.197(c), 265.200, and 265.201; or(E) a transport vehicle or vessel that is closed, structurally sound, compatible with the waste, and that lacks evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions; and(F) a container, multiple container package unit, tank, transport vehicle or vessel that is labeled or marked clearly with the words "Universal Waste - Paint and Paint-Related Wastes;" and(3) For paint and paint-related waste that is ignitable, reactive, or incompatible waste, the applicable requirements under 40 CFR §§265.17, 265.176, and 265.177.(d) Hazardous waste determinations under subsection (b) of this section shall be documented at the time of the determination and maintained for at least three years.</content><note type="source"><p>Source Note: The provisions of this §335.262 adopted to be effective October 24, 1999, 24 TexReg 9293; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective June 11, 2020, 45 TexReg 3780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.271"><num value="335.271">§335.271</num><heading>Purpose, Scope, and Applicability</heading><content>(a) The purpose of this division is to adopt regulations which identify when military munitions become a solid waste, and if these wastes are also hazardous under this division or 40 Code of Federal Regulations Part 261, the management standards that apply to these wastes.(b) Unless otherwise specified in the regulations adopted in this division, all applicable requirements of the commission's rules, including, but not limited to, Chapter 305 of this title (relating to Consolidated Permits) and Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), apply to waste military munitions.</content><note type="source"><p>Source Note: The provisions of this §335.271 adopted to be effective April 12, 2001, 26 TexReg 2741.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.272"><num value="335.272">§335.272</num><heading>Standards</heading><content>(a) The regulations contained in 40 Code of Federal Regulations (CFR) Part 266 Subpart M, as amended in the Federal Register through February 12, 1997 (at 62 FR 6622) are adopted by reference, subject to the changes indicated in subsection (b) of this section.(b) Reference to:(1) August 12, 1997 is changed to the effective date of this rule;(2) 40 CFR Parts 260 - 270 means the commission's rules including, but not limited to, Chapter 50 of this title (relating to Action on Applications and Other Authorizations), Chapter 305 of this title (relating to Consolidated Permits), and Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste), as applicable;(3) 40 CFR Parts 260 - 279 means the commission's rules including, but not limited, to Chapter 50 of this title, Chapter 305 of this title, Chapter 328 of this title (relating to Waste Minimization and Recycling), and Chapter 335 of this title, as applicable;(4) 40 CFR §260.10 is changed to §335.1 of this title (relating to Definitions);(5) 40 CFR §261.2 is changed to the definition of "solid waste" in §335.1 of this title);(6) 40 CFR §262.10(i) means as this section is adopted by reference under §335.52 of this title (relating to Purpose, Scope, and Applicability);(7) 40 CFR §263.10(e) means as this section is adopted under §335.91(f) of this title (relating to Scope);(8) 40 CFR §§264.1(g)(8), 265.1(c)(11), and 270.1(c)(3) are changed to §335.41(d)(2) of this title (relating to Hazardous Waste Management General Provisions);(9) 40 CFR §270.61 is changed to §35.402 of this title (related to Emergency Actions Concerning Hazardous Waste);(10) Resource Conservation and Recovery Act (RCRA) §1004(27) is changed to Texas Health and Safety Code (THSC), §361.003(34) (related to the definition of Solid Waste);(11) RCRA §3004(u) is changed to Texas Water Code (TWC), §7.031(a) and (b) (relating to Corrective Action Relating to Hazardous Waste);(12) RCRA §3008(h) is changed to TWC, §7.031(c) - (e) (relating to Corrective Action Relating to Hazardous Waste);(13) RCRA §7003 is changed to THSC, §361.272 (relating to Administrative Orders Concerning Imminent and Substantial Endangerment), THSC, §361.273 (relating to Injunction as Alternative to Administrative Order), THSC, §361.301 (relating to Emergency Order), TWC, §26.121, (relating to Unauthorized Discharges Prohibited).</content><note type="source"><p>Source Note: The provisions of this §335.272 adopted to be effective effective April 12, 2001, 26 TexReg 2741; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scH/s335.281"><num value="335.281">§335.281</num><heading>Airbag Waste</heading><content>(a) Airbag waste at the airbag waste handler site or during transport to an airbag waste collection facility or a designated facility is not subject to regulation under §335.2 of this title (relating to Permit Required), Subchapter C of this chapter (relating to Standards Applicable to Generators of Hazardous Waste), Subchapter D of this chapter (relating to Standards Applicable to Transporters of Hazardous Waste), Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities), Subchapter F of this chapter (relating to Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities), or Subchapter O of this chapter (relating to Land Disposal Restrictions); or Chapter 37 of this title (relating to Financial Assurance), Chapter 39 of this title (relating to Public Notice), Chapter 281 of this title (relating to Applications Processing), or Chapter 305 of this title (relating to Consolidated Permits), provided that:(1) the airbag waste is accumulated in a quantity of no more than 250 airbag modules or airbag inflators for no longer than 180 days;(2) the airbag waste is packaged in a container designed to address the risk posed by the airbag waste and labeled "Airbag Waste-Do Not Reuse";(3) the airbag waste is sent directly to either:(A) an airbag waste collection facility in the United States under the control of a vehicle manufacturer or their authorized representative, or under the control of an authorized party administering a remedy program in response to a recall under the National Highway Traffic Safety Administration; or(B) a "Designated facility", as defined in §335.1 of this title (relating to Definitions), that is authorized to accept airbag waste;(4) the transport of the airbag waste complies with all applicable United States Department of Transportation regulations in 49 Code of Federal Regulations Parts 171 - 180 during transit;(5) the airbag waste handler maintains at the handler facility, for no less than three years, records of all off-site shipments of airbag waste and all confirmations of receipt from the receiving facility. For each shipment, these records must, at a minimum, contain the name of the transporter and date of the shipment; name and address of receiving facility; and the type and quantity of airbag waste (i.e., airbag modules or airbag inflators) in the shipment. Confirmations of receipt must include the name and address of the receiving facility; the type and quantity of the airbag waste (i.e., airbag modules or airbag inflators) received; and the date which it was received. Shipping records and confirmations of receipt must be made available for inspection and may be satisfied by routine business records (e.g., electronic or paper financial records, bills of lading, copies of United States Department of Transportation shipping papers, or electronic confirmations of receipt).(b) Airbag waste received at an airbag waste collection facility or a designated facility is subject to all hazardous waste regulations, and the operator of the receiving facility is the generator of the airbag waste that must comply with the generator requirements of Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste in General), and Subchapter C of this chapter (relating to Standards Applicable to Generators of Hazardous Waste).(c) Reuse of defective airbag modules or defective airbag inflators subject to a recall under the National Highway Traffic Safety Administration in vehicles is prohibited and is considered sham recycling as defined under §335.27 of this title (relating to Legitimate Recycling of Hazardous Secondary Materials).</content><note type="source"><p>Source Note: The provisions of this §335.281 adopted to be effective June 11, 2020, 45 TexReg 3780.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scI"><num value="I">SUBCHAPTER I</num><heading>PROHIBITION ON OPEN DUMPS</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scI/s335.301"><num value="335.301">§335.301</num><heading>Purpose</heading><content>The purpose of this subchapter is to authorize the executive director to evaluate nonhazardous industrial solid waste land disposal facilities and practices in order to determine whether the facilities or practices constitute open dumps.</content><note type="source"><p>Source Note: The provisions of this §335.301 adopted to be effective May 28, 1986, 11 TexReg 2350.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scI/s335.302"><num value="335.302">§335.302</num><heading>Prohibitions</heading><content>(a) Any solid waste management practice or disposal of industrial solid waste which constitutes the open dumping of industrial solid waste is prohibited, except in the case of any practice or disposal of industrial solid waste under a timetable or schedule for compliance established under the Resource Conservation and Recovery Act of 1976, §4005(c), and §335.304 of this title (relating to Classification of Facilities).(b) Where a schedule for compliance has not been established by the executive director, no person may cause, suffer, allow, or permit any activity of disposal of industrial solid waste at a facility which has been classified as an open dump by the executive director.</content><note type="source"><p>Source Note: The provisions of this §335.302 adopted to be effective May 28, 1986, 11 TexReg 2350.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scI/s335.303"><num value="335.303">§335.303</num><heading>Criteria for Classification of Solid Waste Disposal Facilities and Practices</heading><content>Except to the extent that they are clearly inconsistent with the express provisions of Texas Health and Safety Code, Chapter 361, or the rules of the commission, the regulations contained in 40 Code of Federal Regulations (CFR) Part 257 are adopted by reference. The executive director will maintain in the offices of the commission a set of the regulations contained in 40 CFR Part 257 and adopted by reference herein. The regulations may be examined in the library of the Texas Natural Resource Conservation Commission, located on the first floor of Building A at 12100 Park 35 Circle, Austin, Texas.</content><note type="source"><p>Source Note: The provisions of this §335.303 adopted to be effective May 28, 1986, 11 TexReg 2350; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scI/s335.304"><num value="335.304">§335.304</num><heading>Classification of Facilities</heading><content>The executive director may evaluate all existing solid waste disposal facilities, except those exempted under 40 Code of Federal Regulations (CFR) §257.1, according to the criteria in 40 CFR Part 257. The executive director shall classify as open dumps all facilities which fail to satisfy these criteria and shall prepare a list of those facilities. This list shall be submitted to the EPA for inclusion in the open dump inventory under the Resource Conservation and Recovery Act of 1976, §4005.</content><note type="source"><p>Source Note: The provisions of this §335.304 adopted to be effective May 28, 1986, 11 TexReg 2350; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scI/s335.305"><num value="335.305">§335.305</num><heading>Upgrading or Closing of Open Dumps</heading><content>(a) All existing industrial solid waste disposal facilities which are classified as open dumps shall be upgraded or closed in accordance with measures specified by the commission so that the facility or practice no longer violates the criteria in 40 Code of Federal Regulations Part 257.(b) The executive director may establish a timetable or schedule of compliance for any facility classified as an open dump where the facility owner or operator has demonstrated that other public or private alternatives to comply with the prohibition on open dumping have been considered and such alternatives to so comply cannot be utilized. The schedule of compliance shall specify a schedule of remedial measures and an enforceable sequence of actions leading to compliance within a reasonable time, not to exceed five years from the date of publication of the inventory under the Resource Conservation and Recovery Act of 1976, §4005.(c) Nothing in this section precludes the executive director from seeking any relief deemed necessary for violation of this subchapter, any provision of Texas Health and Safety Code, Chapter 361, or any other regulations of the commission nor does this section establish any prerequisite for seeking that relief.</content><note type="source"><p>Source Note: The provisions of this §335.305 adopted to be effective May 28, 1986, 11 TexReg 2350; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scI/s335.306"><num value="335.306">§335.306</num><heading>List of Interested or Affected Persons</heading><content>The commission shall maintain a current list of agencies, organizations, and individuals affected by or interested in the state plan developed pursuant to the Resource Conservation and Recovery Act of 1976, Subtitle D, which shall include any parties that request to be on the list, the owner or operator of each facility classified as an open dump, and any other parties which the commission determines to be affected or interested in the plan.</content><note type="source"><p>Source Note: The provisions of this §335.306 adopted to be effective May 28, 1986, 11 TexReg 2350.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scI/s335.307"><num value="335.307">§335.307</num><heading>Notification of Classification by Commission</heading><content>(a) Upon determination by the commission that a facility or practice violates any of the criteria set forth in 40 Code of Federal Regulations (CFR) Part 257 and should be in the open dump inventory under the Resource Conservation and Recovery Act of 1976, §4005(b), the owner or operator of such facility shall be so notified in writing by the commission at least 30 days prior to the initial submission of the classification to the EPA. If the owner or operator wishes to contest that determination, he must so notify the commission within 20 days of the date of the notification and include any information indicating that the facility does not violate any of the criteria classification set forth in 40 CFR Part 257. If the owner or operator fails to respond to the notification, or if the commission determines that the information provided by the owner or operator does not affect its initial determination, the commission shall forward the name of the facility to the EPA for publication in the Federal Register. The commission may delete the name of a facility from the list to be forwarded to the EPA if, in the opinion of the commission, the information presented by the owner or operator pursuant to this subsection shows that the facility or practice does not violate any of the criteria set forth in 40 CFR Part 257. (b) The commission shall also provide written notification of the availability of the results of any classification pursuant to §335.304 of this title (relating to Classification of Facilities) to all other persons on the list required by §335.306 of this title (relating to List of Interested or Affected Persons) at least 30 days prior to the initial submission of any classifications to the EPA.</content><note type="source"><p>Source Note: The provisions of this §335.307 adopted to be effective May 28, 1986, 11 TexReg 2350; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scI/s335.308"><num value="335.308">§335.308</num><heading>Complaints</heading><content>To encourage public participation, the commission shall respond to complaints and other information received from the public which relate to any facility evaluated under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §335.308 adopted to be effective May 28, 1986, 11 TexReg 2350.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scJ"><num value="J">SUBCHAPTER J</num><heading>HAZARDOUS WASTE GENERATION, FACILITY AND DISPOSAL FEE SYSTEM</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scJ/s335.321"><num value="335.321">§335.321</num><heading>Purpose</heading><content>(a) It is the purpose of this subchapter to establish an industrial solid waste and hazardous waste fee program. Under this program the following fees are imposed:(1) an annual fee on each generator of Class 1 industrial solid waste or hazardous waste;(2) an annual fee on each facility which either holds a Class 1 industrial solid waste or hazardous waste permit or operates Class 1 industrial solid waste or hazardous waste management units subject to permit authorization;(3) a fee on the operator of a commercial solid waste disposal facility for Class 1 industrial waste which is disposed on site by the facility;(4) a fee on the operator of a hazardous waste storage, processing, or disposal facility for hazardous waste which is managed on site by the facility; and(5) a fee on each application for a permit for an industrial solid waste or hazardous waste facility assessed under §305.53 of this title (relating to Application Fees).(b) Hazardous and solid waste fees fund.(1) The hazardous and solid waste fees fund shall be used for the purpose of regulation of industrial solid waste and hazardous waste, including payment to other state agencies for services provided under contract relating to enforcement of the Texas Health and Safety Code, Chapter 361.(2) The fund shall consist of:(A) generation fees assessed under §335.323 of this title (relating to Generation Fee Assessment);(B) facility fees assessed under §335.324 of this title (relating to Facility Fee Assessment);(C) hazardous waste management fees and Class 1 industrial waste disposal fees assessed and apportioned under §335.325 of this title (relating to Industrial Solid Waste and Hazardous Waste Management Fee Assessment);(D) application fees assessed under §305.53 of this title; and(E) interest penalties for late payment of industrial solid waste and hazardous waste fees imposed by §335.331 of this title (relating to Failure to Make Payment or Report).(c) Hazardous and solid waste remediation fee fund.(1) The hazardous and solid waste remediation fee fund shall be used for the purpose of the following:(A) necessary and appropriate removal and remedial action at sites at which solid waste or hazardous substances have been disposed if funds from a liable party, independent third party, or the federal government are not sufficient for the removal or remedial action;(B) necessary and appropriate maintenance of removal and remedial actions for the expected life of those actions if funds from a liable party have been collected and deposited in the fund for that purpose or if funds from a liable party, independent third party, or the federal government are not sufficient for the maintenance;(C) expenses related to complying with the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 United States Code §§9601 et seq.) as amended, the federal Superfund Amendments and Reauthorization Act of 1986 (10 United States Code §§2701 et seq.), and the Texas Health and Safety Code, Chapter 361, Subchapters F and I;(D) expenses concerning the regulation and management of household hazardous substances and the prevention of pollution of the water resources of the state from the uncontrolled release of hazardous substances; and(E) expenses concerning the cleanup or removal of a spill, release, or potential threat of release of a hazardous substance where immediate action is appropriate to protect human health and the environment.(2) The fund shall consist of:(A) hazardous waste management fees and Class 1 industrial waste disposal fees assessed and apportioned under §335.325 of this title;(B) interest and penalties imposed under §335.331 of this title (relating to Failure to Make Payment or Report);(C) money paid by a person liable for facility cleanup and maintenance under provisions of the Texas Health and Safety Code, §361.197;(D) interest received from the investment of the fund in accounts under the charge of the treasurer; and(E) monies collected on behalf of the commission or transferred from other agencies under any applicable provisions of the Texas Health and Safety Code, including §361.138 concerning fees on lead-acid batteries, or grants from any person made for the purpose of remediation of facilities under the Texas Health and Safety Code, Chapter 361.(d) Waste management fees collected under §335.325 of this title shall be credited to the funds of the state as follows.(1) One quarter, or 25%, of the waste management fee collected from a commercial waste storage, processing, or disposal facility shall be credited to the hazardous and solid waste fees fund to be distributed to the county in which the facility paying the fee is located. Funds due the affected county shall be paid by the commission within 60 days of the receipt and verification of payments from a commercial hazardous waste facility in the county.(2) The remaining amount of commercial waste management fees and the total amount of noncommercial waste fees shall be deposited as follows.(A) One half, or 50%, of each amount shall be credited to the hazardous and solid waste remediation fee fund.(B) One half, or 50%, of each amount shall be credited to the hazardous and solid waste fees fund.</content><note type="source"><p>Source Note: The provisions of this §335.321 adopted to be effective October 31, 1985, 10 TexReg 4085; amended to be effective July 3, 1986, 11 TexReg 2894; amended to be effective January 5, 1988, 12 TexReg 4844; amended to be effective September 12, 1990, 15 TexReg 4957; amended to be effective March 19, 1992, 17 TexReg 1737; amended to be effective February 16, 1994, 19 TexReg 802; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scJ/s335.322"><num value="335.322">§335.322</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Affidavit of exclusion--A sworn statement by a permit applicant in support of an exclusion or exemption from permitting pursuant to §335.2(c) of this title (relating to Permit Required) or §335.43(b) of this title (relating to Permit Required).(2) Authorized hazardous waste management unit--A unit at a hazardous waste management facility which is authorized by permit or which is identified in an application submitted pursuant to and in accordance with §335.2(c) of this title or §335.43(b) of this title.(3) Captured facility--A manufacturing or production facility which generates an industrial solid waste or hazardous waste which is routinely stored, processed, or disposed, on a shared basis, in an integrated waste management unit owned and operated by and located within a contiguous manufacturing facility.(4) Class 1 waste--Any industrial solid waste or mixture of industrial solid wastes meeting the definition of Class 1 waste under §335.1 of this title (relating to Definitions).(5) Class 1 nonhazardous waste--Any Class 1 waste which is not a hazardous waste as defined in this section.(6) Commercial hazardous waste storage, processing, and disposal facility--Any facility which accepts a hazardous waste for storage, processing (including incineration), or disposal from an off-site generator for a charge.(7) Commercial waste storage, processing, and disposal facility--Any facility which accepts an industrial solid waste or a hazardous waste for storage, processing (including incineration), or disposal for a charge.(8) Dry weight--The weight of all constituents other than water.(9) Generator--Any person whose act or process produces industrial solid waste or hazardous waste or whose act first causes an industrial solid waste or a hazardous waste to become subject to regulation by the commission.(10) Generator of hazardous waste or generator--Any person whose act or process produces hazardous waste or whose act first causes a hazardous waste to become subject to regulation by the commission.(11) Hazardous waste--Those solid wastes not otherwise exempted which have been identified or listed as hazardous wastes by the administrator of the EPA pursuant to the federal Solid Waste Disposal Act, 42 United States Code §§6901 et seq., as amended.(12) Hazardous waste fuel--A hazardous waste or blend of hazardous wastes to be burned for energy recovery which, for the purposes of assessment of fees under this section, is not subject to regulation under 40 Code of Federal Regulations (CFR) Part 264 (or Part 265) Subpart O, relating to incinerators.(13) Industrial solid waste--A solid waste meeting the definition of industrial solid waste under §335.1 of this title.(14) Injection well--As provided in the Texas Water Code (TWC), §27.002(11).(15) Interim status--The status of any person who owns or operates a facility required to have a permit under this chapter, and who is required to submit an application for a permit pursuant to §335.2(c) of this title or §335.43(b) of this title.(16) Land disposal facility--Any landfill, surface impoundment (excluding an impoundment treating, processing, or storing waste that is disposed pursuant to TWC, Chapter 26 or Chapter 27), waste pile, facility at which land farming, land treatment, or a land application process is used, or an injection well. Land disposal does not include the normal application of agricultural chemicals or fertilizers.(17) Noncommercial waste storage, processing, or disposal facility--Any facility that accepts an industrial solid waste or a hazardous waste for storage, processing, (including incineration), or disposal for no charge or that stores, processes, or disposes of wastes generated on-site by the facility.(18) On-site land disposal facility--A hazardous waste unit which meets the definition of land disposal facility of this section and on-site disposal as defined in §335.1 of this title.(19) Processing--For the purposes of this subchapter, the term "processing" has the same meaning as defined in §335.1 of this title.(20) Recycled--For the purposes of this subchapter, a waste is recycled if it is used, reused, or reclaimed in a manner consistent with the definition of a recyclable material or nonhazardous recyclable material under §335.17 of this title (relating to Special Definitions for Recyclable Materials and Nonhazardous Recyclable Materials) and §335.24 of this title (relating to Requirements for Recyclable Materials and Nonhazardous Recyclable Materials).(21) Terminal operations--Nonmanufacturing facilities that provide storage and transfer services for commercial chemical products or chemical intermediates listed in 40 CFR §261.33.</content><note type="source"><p>Source Note: The provisions of this §335.322 adopted to be effective October 31, 1985, 10 TexReg 4085; amended to be effective July 3, 1986, 11 TexReg 2894; amended to be effective September 1, 1986, 11 TexReg 3697; amended to be effective September 12, 1990, 15 TexReg 4957; amended to be effective March 19, 1992, 17 TexReg 1737; amended to be effective February 16, 1994, 19 TexReg 802; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective July 18, 2002, 27 TexReg 6315.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scJ/s335.323"><num value="335.323">§335.323</num><heading>Generation Fee Assessment</heading><content>(a) An annual generation fee is hereby assessed each industrial or hazardous solid waste generator that is required to notify under §335.6 of this title (relating to Notification Requirements) and which generates Class 1 industrial solid waste or hazardous waste or whose act first causes such waste to become subject to regulation under Subchapter B of this chapter (relating to Hazardous Waste Management General Provisions) on or after September 1, 1985. These fees shall be deposited in the hazardous and solid waste fee fund. The amount of a generation fee is determined by the total amount of Class 1 nonhazardous waste or hazardous waste generated during the previous calendar year. The annual generation fee may not be less than $50. The annual generation fee for hazardous waste shall not be more than $50,000 and for nonhazardous waste not more than $10,000. (b) Wastewaters are exempt from assessment under the following conditions. (1) Wastewaters containing hazardous wastes which are designated as hazardous solely because they exhibit a hazardous characteristic as defined in 40 Code of Federal Regulations (CFR) Part 261, Subpart C, concerning characteristics of hazardous waste, and are rendered nonhazardous by neutralization or other treatment on-site in totally enclosed treatment facilities or wastewater treatment units for which no permit is required under §335.2 of this title (relating to Permit Required) or §335.41 of this title (relating to Purpose, Scope and Applicability) are exempt from the assessment of hazardous waste generation fees. (2) Wastewaters classified as Class 1 industrial solid wastes because they meet the criteria for a Class 1 waste under the provisions of §335.505 of this title (relating to Class 1 Waste Determination) and are treated on-site in totally enclosed treatment facilities or wastewater treatment units for which no permit is required under §335.2 of this title or §335.41 of this title and no longer meet the criteria for a Class 1 waste are exempt from the assessment of waste generation fees. (3) Wastewaters containing hazardous wastes which are designated as hazardous solely because they exhibit a hazardous characteristic as defined in 40 CFR Part 261, Subpart C, concerning characteristics of hazardous waste, and are transported via direct hard pipe connection to a publicly-owned treatment works (POTW) and rendered nonhazardous by neutralization or other treatment are exempt from the assessment of hazardous waste generation fees. (4) Wastewaters classified as Class 1 industrial solid wastes because they meet the criteria for a Class 1 waste under the provisions of §335.505 of this title and are transported via direct hard pipe connection to a POTW for treatment and no longer meet the criteria for a Class 1 waste are exempt from the assessment of waste generation fees. (5) Wastewaters which are designated as hazardous waste solely under 40 CFR §261.3(a)(2)(iv) that are generated at terminal operations due to de minimis losses of commercial chemical products and chemical intermediates listed in 40 CFR §261.33 and are treated on-site or off-site at a POTW are exempt from the assessment of hazardous waste generation fees, provided that any discharge to a POTW is via a direct hardpipe connection. For the purposes of this section, de minimis losses shall have the meaning described in 40 CFR §261.3(a)(2)(iv)(D). (6) These exemptions or adjustments in fee assessment in no way limit a generator's obligation to report such waste generation or waste management activity under any applicable provision of this chapter. (7) A wastewater stream treated to meet a different waste classification is subject to only one assessment under this section. (c) Wastes generated in a removal or remedial action accomplished through the expenditure of public funds from the hazardous and solid waste remediation fee fund shall be exempt from any generation fee assessed under this section. (d) Wastes which are recycled shall be exempt from any generation fee assessed under this section. (e) Generation fees are to be assessed up to the maximum annual fee according to the schedules in the tables in Figure: 30 TAC §335.323(e)(1) and (2) in this subsection. (1) Table 1: Hazardous Waste Schedule. Attached Graphic(2) Table 2: Class 1 Nonhazardous Waste Schedule. Attached Graphic(3) The executive director may adjust fees at or below the annual fee specified in the fee schedules in this subsection, on an annual basis, and will notify fee payers of the upcoming fee rate before the rates go into effect.(f) Any claim of exemption from or adjustment to the assessment of a generation fee under this section must be made in writing to the executive director prior to the due date of the assessment.</content><note type="source"><p>Source Note: The provisions of this §335.323 adopted to be effective October 31, 1985, 10 TexReg 4085; amended to be effective January 5, 1988, 12 TexReg 4844; amended to be effective September 12, 1990, 15 TexReg 4957; amended to be effective March 19, 1992, 17 TexReg 1737; amended to be effective February 16, 1994, 19 TexReg 802; amended to be effective April 24, 1995, 20 TexReg 2709; amended to be effective March 1, 1996, 21 TexReg 1425; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective July 18, 2002, 27 TexReg 6315; amended to be effectiveNovember 25, 2021, 46 TexReg 7886.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scJ/s335.324"><num value="335.324">§335.324</num><heading>Facility Fee Assessment</heading><content>(a) An annual facility fee is hereby assessed on each permittee who holds one or more Class 1 industrial solid waste or hazardous waste permits and each facility operating a Class 1 industrial solid waste or hazardous waste management unit subject to permit authorization. These fees shall be deposited in the hazardous and solid waste fees fund. The fee for each year is assessed on each facility for which a permit or the requirement to comply with permit authorization is in effect during any part of the fiscal year. For wholly unbuilt permitted facilities, the annual fee shall be assessed according to subsection (d) of this section. A wholly unbuilt facility means a permitted Class 1 industrial solid waste or hazardous waste facility that has not initiated any physical construction and does not mean unbuilt storage, processing or disposal units within an existing facility. Physical construction means excavation, movement of earth, erection of forms or structures, or similar activity to prepare a facility to accept industrial solid waste or hazardous waste. (b) An applicant who has, prior to September 1, submitted an affidavit of exclusion from permit requirements, shall not be subject to the annual facility fee, pending a decision by the commission on the affidavit of exclusion. If the commission determines that the facility is subject to the permit requirement, the applicant shall pay the fee within 30 days or is subject to the penalties for late payment established under §335.331 of this title (relating to Failure to Make Payment or Report). (c) An applicant who files an affidavit after September 1 shall be subject to the annual facility fee for the billing year in which the affidavit is filed. The applicant shall not be subject to the annual facility fee for the following year, pending a decision by the commission on the affidavit of exclusion. If the commission determines that the facility is subject to the permit requirement, the applicant shall pay the fee within 30 days or is subject to the penalties for late payment established herein. (d) The annual facility fee assessed is the cumulative total of fees for all Class 1 industrial solid waste or hazardous waste management units at the facility which are authorized by permit or subject to authorization on September 1, 1991, and September 1 of each year thereafter. The minimum fee for each hazardous waste facility shall be $2,500. The maximum fee for each hazardous waste facility shall be $25,000. The minimum fee for each facility authorized to manage only nonhazardous waste shall be $500 and the maximum fee $5,000. The annual fee for wholly unbuilt Class 1 industrial solid waste facilities shall be $500 and the annual fee for wholly unbuilt hazardous waste facilities shall be $2,500. A permittee shall be responsible for facility fees as required by subsection (i) of this section when any physical construction is initiated. This rule shall apply retroactively to all facility fees for wholly unbuilt Class 1 industrial solid waste facilities or wholly unbuilt hazardous waste facilities due during the four years preceding the effective date of this rule. (e) A fee under this section for storage or processing in tanks or containers will not be assessed against the owner or operator of an elementary neutralization unit or wastewater treatment unit exempt from the requirement of a permit under §335.41(d) of this title (relating to Purpose, Scope, and Applicability). (f) An "other unit," for the purposes of subsection (i) of this section, is an incinerator, thermal processing unit, or other processing unit, not otherwise listed in subsection (i) of this section, used for waste reduction, recycling, or hazard reduction and subject to compliance with permit requirements. (g) For facilities which require post-closure care permits, the fee for a closed unit shall apply. A fee is assessed for each unit which received waste after January 26, 1983, and which has been closed pursuant to an approved closure plan and which is subject to the post-closure care permit requirements. Disposal units which are closed in a manner such that all hazardous wastes and hazardous constituents are removed pursuant to an approved closure plan are not subject to the fee. (h) The facility fee assessment in subsection (i)(2)-(5) of this section shall be based on the surface area of the waste management unit in which the storage, treatment or disposal of waste has been authorized. (i) Facility fees shall be assessed according to the following schedule. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §335.324 adopted to be effective October 31, 1985, 10 TexReg 4085; amended to be effective July 3, 1986, 11 TexReg 2894; amended to be effective September 1, 1986, 11 TexReg 3697; amended to be effective January 5, 1988, 12 TexReg 4844; amended to be effective March 19, 1992, 17 TexReg 1737; amended to be effective December 22, 1999, 24 TexReg 11514.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scJ/s335.325"><num value="335.325">§335.325</num><heading>Industrial Solid Waste and Hazardous Waste Management Fee Assessment</heading><content>(a) A fee is hereby assessed on each owner or operator of a waste storage, processing, or disposal facility, except as provided in subsections (b) - (e) of this section. A fee is assessed for hazardous wastes which are stored, processed, disposed, or otherwise managed and for Class 1 industrial wastes which are disposed at a commercial facility. For the purpose of this section, the storage, processing, or disposal of hazardous waste for which no permit is required under §335.2 of this title (relating to Permit Required) or §335.41 of this title (relating to Purpose, Scope and Applicability) is not subject to a hazardous waste management fee.(b) A fee imposed on the owner or operator of a commercial hazardous waste storage, processing, or disposal facility for hazardous wastes which are generated in this state and received from an affiliate or wholly owned subsidiary of the commercial facility, or from a captured facility, shall be the same fee imposed on a noncommercial facility. For the purpose of this section, an affiliate of a commercial hazardous waste facility must have a controlling interest in common with that facility.(c) The storage, processing, or disposal of industrial solid waste or hazardous wastes generated in a removal or remedial action accomplished through the expenditure of public funds from the hazardous and solid waste remediation fee fund shall be exempt from the assessment of a waste management fee under this section.(d) A fee shall not be imposed on the owner or operator of a waste storage, processing, or disposal facility for the storage of hazardous wastes if such wastes are stored in compliance with the conditions for exemption for a small quantity generator in 40 Code of Federal Regulations (CFR) §262.16 or the conditions for exemption for a large quantity generator in 40 CFR §262.17 as adopted in §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste).(e) A fee may not be imposed under this section on the operation of a facility permitted under the Texas Water Code, Chapter 26, or the federal National Pollutant Discharge Elimination System program for wastes treated, processed, or disposed of in a wastewater treatment system that discharges into surface waters of the state. For the purpose of this section, the management of a hazardous waste in a surface impoundment which is not exempt from assessment under this subsection will be assessed the fee for processing under subsection (j) of this section.(f) The waste management fee authorized under this section shall be based on the total weight or volume of a waste except for wastes which are disposed of in an underground injection well, in which case the fee shall be based on the dry weight of the waste, measured in dry weight tons (dwt), as defined in §335.322 of this title (relating to Definitions) and §335.326 of this title (relating to Dry Weight Determination).(g) The hazardous waste management fee for wastes generated in this state shall not exceed $40 per ton for wastes which are landfilled. (h) The operator of a waste storage, processing, or disposal facility receiving industrial solid waste or hazardous waste from out-of-state generators shall be assessed the fee amount required on wastes generated in state plus an additional increment to be established by rule, except as provided in subsection (k) of this section.(i) For the purposes of subsection (j) of this section, energy recovery means the burning or incineration of a hazardous waste fuel and fuel processing means the handling of a waste fuel, including storage and blending, prior to its disposal by burning.(j) Except as provided in subsections (k) - (q) of this section, waste management fees shall be assessed up to the maximum fee according to the schedules in the tables in Figure: 30 TAC §335.325(j)(1) and (2) in this subsection.(1) Table 1: Hazardous Waste Schedule.Attached Graphic(2) Table 2: Class 1 Nonhazardous Waste ScheduleAttached Graphic(3) The executive director may adjust fees at or below the fee specified in the fee schedule, on an annual basis, and will notify fee payers of the upcoming fee rate before the rates go into effect.(k) For wastes which are generated out-of-state, the fee will be that specified in subsection (j) of this section, except that the fee for the storage, processing, incineration, and disposal of hazardous waste fuels shall be the same for wastes generated out-of-state and in-state.(l) Except as provided in subsection (m) of this section, only one waste management fee shall be paid for a waste managed at a facility. In any instance where more than one fee could be applied under this section to a specific volume of waste, the higher of the applicable fees will be assessed.(m) A fee for storage of hazardous waste shall be assessed in addition to any fee for other waste management methods at a facility. No fee shall be assessed under this section for the storage of a hazardous waste for a period of less than 90 days as determined from the date of receipt or generation of the waste (or the effective date of this section). The fee rate specified in the schedule under subsection (j) of this section shall apply to the quantity of waste in any month which has been in storage for more than 90 days or the number for which an extension has been granted under 40 CFR §262.17(b) as adopted in §335.53(f) of this title.(n) A facility which receives waste transferred from another facility shall pay any waste management fee applicable under this section and shall not receive credit for any fee applied to the management of the waste at the facility of origin.(o) The fee rate for incineration of aqueous wastes containing 5.0% or less of total organic carbon will be 10% of the fee for incineration under the schedule in subsection (j) of this section.(p) A commercial waste disposal facility receiving solid waste not subject to assessment under this section shall pay any assessment due under Chapter 330, Subchapter P of this title (relating to Fees and Reporting). No fee for disposal of a solid waste under Chapter 330, Subchapter P of this title, shall be assessed in addition to a fee for disposal under this section.(q) An operator of a hazardous waste injection well electing to separately measure inorganic salts in the determination of dry weight under the provisions of §335.326(c) of this title shall pay a fee equivalent to 20% of the fee for underground injection assessed in subsection (j) of this section for the components of the waste stream determined to be inorganic salts.</content><note type="source"><p>Source Note: The provisions of this §335.325 adopted to be effective March 19, 1992, 17 TexReg 1737; amended to be effective February 16, 1994, 19 TexReg 802; amended to be effective October 16, 1995, 20 TexReg 7993; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective November 25, 2021, 46 TexReg 7886; amended to be effective November 17, 2024, 49 TexReg 8940.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scJ/s335.326"><num value="335.326">§335.326</num><heading>Dry Weight Determination</heading><content>(a) The method of calculating the dry weight of each waste stream subject to assessment under §335.325 of this title (relating to Industrial Solid Waste and Hazardous Waste Management Fee Assessment) shall be determined initially and at any time the waste stream undergoes a significant change in water content using the appropriate method(s) as specified in this section. Determinations shall be made from a representative sample collected by grab or composite. Collection methods and sample preservation shall be by methods to minimize volatilization.(1) Wastes which contain suspended solids greater than or equal to 15% of the sample on a weight basis shall have the dry weight determination calculated using the method specified in Appendix I in §335.332 of this title (relating to Appendices I and II).(2) Aqueous based wastes which contain suspended solids less than 15% of the sample by weight basis and which contain a single liquid phase shall have the dry weight determination calculated using Standard Methods for the Examination of Water and Wastewater, 15th Edition, Method 209A, pages 92-93, or equivalent method in later editions.(3) Organic-based wastes which contain suspended solids less than 15% of the sample by weight and which contain a single liquid phase shall have the dry weight determination calculated using:(A) 1981 Annual Book of ASTM Standards, Part 30, Method E203, pages 803 - 812, or equivalent method in later editions; or(B) the method specified in Appendix II in §335.332 of this title.(4) Wastes which do not meet any of the criteria specified in paragraphs (1) - (3) of this subsection shall have the dry weight determination calculated using:(A) The 1981 Annual Book of ASTM Standards, Part 23, Method D96, pages 64 - 81, or equivalent method in later editions; or(B) the method specified in Appendix II in §335.332 of this title; or(C) The 1981 Annual Book of ASTM Standards, Part 23, Method D95, pages 59 - 63 or equivalent method in later editions. Method D96 determines the water and sediment content of the sample. The calculations shall be modified to determine only the water content.(5) The method for calculating the dry weight shall be that method specified in Appendix I in §335.332 of this title or an alternate method selected by the generator pursuant to §335.327 of this title (relating to Alternate Methods of Dry Weight Determination), if the waste cannot be analyzed by one of the other required methods of this section due to interfering constituents. Documentation identifying the method of analysis and describing the interference shall be maintained by the generator.(b) Wastes containing free liquids which are designated for disposal in a landfill and must be solidified prior to disposal shall have the dry weight determination made on the waste, prior to the addition of the solidification agent.(c) If the dry weight ratio of a hazardous waste as measured under this section exceeds 10%, an operator of a hazardous waste injection well may elect to determine the composition of the waste stream that is inorganic salts or brines and separately record the weight of such inorganic salts for the purpose of assessment of the fee under §335.325(q) of this title. The methods used to determine the weight of inorganic salts in a hazardous waste stream are subject to review and approval by the executive director. This subsection does not apply to:(1) any component of a waste stream that is a hazardous constituent or is a constituent for which the waste is designated as hazardous; or(2) any waste stream received by a commercial facility for a charge.(d) For purposes of a fee assessed under §335.325 of this title, the dry weight of a waste disposed in an underground injection well, to which brine, inorganic salts, or other authorized agents are added to maintain density control to assure compliance with no-migration requirements of 40 Code of Federal Regulations 148 Subpart C, shall be determined prior to the addition of the agent. No solid waste, as defined by the Texas Health and Safety Code, §361.003(37), may be excluded from the determination of dry weight under this subsection.</content><note type="source"><p>Source Note: The provisions of this §335.326 adopted to be effective March 19, 1992, 17 TexReg 1737; amended to be effective August 24, 1992, 17 TexReg 5552; amended to be effective February 16, 1994, 19 TexReg 802; amended to be effective October 16, 1995, 20 TexReg 7993; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scJ/s335.327"><num value="335.327">§335.327</num><heading>Alternate Methods of Dry Weight Determination</heading><content>(a) Generators may select other test methods for the purpose of calculating the dry weight of their waste where one of the methods provided in §335.326 of this title (relating to Dry Weight Determination) is not applicable. Technical justification must be sent to the executive director, demonstrating that the proposed method will produce an accurate determination of the dry weight ratio of the waste unless the executive director has provided written approval for use of the alternate method. Use of an evaporation temperature above 75 degrees Celsius will be allowed only on demonstration that the waste stream contains appreciable volatile compounds that exhibit higher evaporation temperatures. Where practicable, results from the proposed test methods and the required method should be compared. Applicability of this item to such dry weight determinations is subject to review by the executive director.(b) Generators may elect to declare the total wet weight of the waste as the dry weight.</content><note type="source"><p>Source Note: The provisions of this §335.327 adopted to be effective March 19, 1992, 17 TexReg 1737; amended to be effective February 16, 1994, 19 TexReg 802.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scJ/s335.328"><num value="335.328">§335.328</num><heading>Fees Payment</heading><content>(a) Generation and facility fees are payable each year for all Class 1 industrial solid waste and hazardous waste generators, permittees, and facilities. Fees must be paid by check, certified check, or money order payable to Texas Natural Resource Conservation Commission. Annual facility fees are payable by permittees, owners, or operators regardless of whether the facility is in actual operation. All annual generation and facility fees shall be due by a date to be established by the Texas Natural Resource Conservation Commission at the time payment is requested.(b) Except as provided in subsection (c) of this section, waste management fees are to be paid monthly by each operator of a waste storage, processing, or disposal facility for wastes managed subject to the provisions of §335.325 of this title (relating to Industrial Solid Waste and Hazardous Waste Management Fee Assessment) in that month. Fees must be paid by check, certified check, or money order to Texas Natural Resource Conservation Commission and shall be due by the 25th day following the end of the month for which payment is due.(c) An owner or operator required to pay a waste management fee who owes less than $500 for a calendar month or less than $1,500 for a calendar quarter is not required to file a monthly report under §335.329 of this title (relating to Records and Reports) but should file a quarterly report with and pay a quarterly fee to the commission.</content><note type="source"><p>Source Note: The provisions of this §335.328 adopted to be effective March 19, 1992, 17 TexReg 1737; amended to be effective February 16, 1994, 19 TexReg 802; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scJ/s335.329"><num value="335.329">§335.329</num><heading>Records and Reports</heading><content>(a) Generators are required to:(1) keep records of all hazardous waste and industrial solid waste activities regarding the quantities generated, stored, processed, and disposed on-site or shipped off-site for storage, processing or disposal in accordance with the requirements of §335.9 of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators);(2) keep records of the dry weight amount of each waste designated for disposal in an underground injection well and records of the amounts of any solidification agents, brine, or other authorized material added to a waste stream which may be excluded from the determination of dry weight under §335.326 of this title (relating to Dry Weight Determination);(3) provide each operator of an underground injection well a certificate of computation of the dry weight of a waste to be disposed. For each off-site shipment, the dry weight amount of each hazardous waste to be disposed in an underground injection well is to be recorded in Item J of the Uniform Hazardous Waste Manifest as required under §335.30 of this title (relating to Appendix I); and(4) submit the appropriate reports required under §335.13(b) of this title (relating to Recordkeeping and Reporting Procedures Applicable to Generators Shipping Hazardous Waste or Class 1 Waste and Primary Exporters of Hazardous Waste) on forms furnished or approved by the executive director.(b) Owners or operators of waste storage, processing, or disposal facilities are required to:(1) for on-site facilities, keep records of all hazardous waste and industrial solid waste activities regarding the quantities stored, processed, and disposed on site or shipped off site for storage, processing, or disposal in accordance with the requirements of §335.9 of this title;(2) for off-site facilities, submit the appropriate reports required under §335.15(2) of this title (relating to Recordkeeping and Reporting Requirements Applicable to Owners or Operators of Storage, Processing, or Disposal Facilities);(3) record the dry-weight amount of each waste disposed in an underground injection well at the facility;(4) document the basis for the assessment of any applicable fee as determined under §335.325 of this title (relating to Industrial Solid Waste and Hazardous Waste Management Fee Assessment), including any adjustment to or exemption from assessment; and(5) except as provided in §335.328 of this title (relating to Fees Payment), submit a monthly summary of on-site waste management activities subject to the assessment of fees under §335.325 of this title on forms furnished or approved by the executive director. This summary report shall be due by the 25th day following the end of the month (or quarter) for which a report is made. An owner or operator required to comply with this subsection shall continue to prepare and submit monthly (or quarterly) summaries, regardless of whether any storage, processing, or disposal was made during a particular month (or quarter), by preparing and submitting a summary indicating that no waste was managed during that month (or quarter).(c) Records or reports required to be kept under this section shall be retained for a minimum of three years after the date the record or report is made.(d) The periods of record retention required by this section are automatically extended during the course of any unresolved enforcement action regarding the regulated activity.</content><note type="source"><p>Source Note: The provisions of this §335.329 adopted to be effective March 19, 1992, 17 TexReg 1737; amended to be effective August 24, 1992, 17 TexReg 5552; amended to be effective February 16, 1994, 19 TexReg 802; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective November 17, 2024, 49 TexReg 8940.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scJ/s335.330"><num value="335.330">§335.330</num><heading>Cancellation, Revocation, and Transfer</heading><content>(a) Cancellation or revocation of a permit, or termination of interim status, whether by voluntary action on the part of the applicant or permittee or as a result of involuntary proceedings initiated by the commission, will not constitute grounds for refund, in whole or in part, of any fee paid by the permittee or applicant.(b) Transfer of facility ownership will not entitle the transferring permittee, applicant, or generator to a refund, in whole or in part of any fee already paid by the permittee, applicant, or generator. The transferring permittee, applicant, or generator remains liable for any unpaid portion of fee assessed which accrued during his ownership. Any permittee, applicant, or generator to whom facility ownership or a permit is transferred shall be liable for any of the fees assessed after date of transfer. Payment by either the transferring permittee, applicant, or generator, or by the permittee, applicant, or generator to whom the ownership was transferred shall constitute full payment for any fees assessed.(c) A generator who ceases generation of industrial solid waste or hazardous waste due to a change of process or closing of operations shall not be eligible for a refund, in whole or in part, of any fee paid.</content><note type="source"><p>Source Note: The provisions of this §335.330 adopted to be effective March 19, 1992, 17 TexReg 1737.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scJ/s335.331"><num value="335.331">§335.331</num><heading>Failure To Make Payment or Report</heading><content>(a) Failure to make payment in accordance with this subchapter constitutes a violation subject to enforcement pursuant to the Health and Safety Code, §361.137 and §361.252.(b) Generators and owners or operators of a facility failing to make payment of fees imposed under the Health and Safety Code, Chapter 361, when due, shall be assessed late payment penalties and interest in accordance with Chapter 12 of this title (relating to Payment of Fees).(c) Any interest or penalties collected by the commission shall be deposited in the appropriate fund.</content><note type="source"><p>Source Note: The provisions of this §335.331 adopted to be effective March 19, 1992, 17 TexReg 1737; amended to be effective February 16, 1994, 19 TexReg 802; amended to be effective February 14, 1997, 22 TexReg 1329; amended to be effective June 11, 2020, 45 TexReg 3780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scJ/s335.332"><num value="335.332">§335.332</num><heading>Appendices I and II</heading><content>The following appendices will be used for the purposes of this subchapter. (Appendix I--Dry Weight Determination for Solids-Based Industrial Solid Waste and Hazardous Waste; Appendix II--Dry Weight Determination for Oil and Organic-Based Industrial Solid Waste and Hazardous Waste.)Attached GraphicAttached Graphic</content><note type="source"><p>Source Note: The provisions of this §335.332 adopted to be effective March 19, 1992, 17 TexReg 1737; amended to be effective February 16, 1994, 19 TexReg 802.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scK"><num value="K">SUBCHAPTER K</num><heading>HAZARDOUS SUBSTANCE FACILITIES ASSESSMENT AND REMEDIATION</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scK/s335.341"><num value="335.341">§335.341</num><heading>Purpose and Scope</heading><content>(a) The purpose of this subchapter is to establish an assessment and remediation program to identify and assess facilities that may constitute an imminent and substantial endangerment to public health and safety or the environment due to a release or threatened release of hazardous substances into the environment. The provisions of this subchapter supplement and therefore should be read in conjunction with the provisions of Texas Health and Safety Code, Chapter 361, Subchapter F, herein referred to as the Act. (b) This subsection describes the procedures for identifying, proposing, listing, and delisting facilities on the State Registry. (1) Prior to proposing a facility for inclusion on the State Registry, the executive director shall first determine whether any potential endangerment to public health and safety or the environment at a facility can be resolved by the present owner or operator under the federal Resource Conservation and Recovery Act, 42 United States Code Annotated §§6901 et seq. (1976), as amended. (2) If the potential endangerment cannot be fully resolved by the present owner or operator, then the executive director shall determine whether the potential endangerment can be resolved by voluntary cooperation of some or all of the potentially responsible parties (PRPs) identified in the Act, §361.271 or §361.275(g) pursuant to an agreed administrative order issued by the commission or a Voluntary Cleanup Agreement pursuant to Chapter 333 of this title (relating to Voluntary Cleanup Programs). If a facility can be cleaned up pursuant to an agreed administrative order or an executed Voluntary Cleanup Agreement, then it shall not be proposed for listing. (3) If, after reasonable efforts, the executive director determines that the potential endangerment to public health and safety or the environment cannot be resolved by either of these approaches, the executive director shall evaluate the facility to determine whether it is eligible for listing on the federal National Priorities List established pursuant to the federal Comprehensive Environmental Response, Compensation, and Liability Act, 42 United States Code Annotated, §§9601 et seq. (1980), as amended. (4) The executive director shall determine whether the facility is eligible for proposed listing on the State Registry only if, based on information available to the executive director, the facility is not eligible for inclusion on the federal National Priorities List. (5) If the executive director determines that the potential endangerment to public health and safety or the environment can be resolved by any of the approaches described in paragraphs (1) - (3) of this subsection, then the site will not be proposed for listing on the State Registry. Notice of the approach selected to resolve the apparent endangerment to public health and safety or the environment and the fact that such action is being taken in lieu of listing the facility on the State Registry shall be published in the Texas Register. (c) A preliminary site investigation, removal action, remedial investigation, and remedial action shall comply with all requirements found in Texas Health and Safety Code, Chapter 361, Subchapter F (relating to Registry and Cleanup of Certain Hazardous Waste Facilities); the requirements of this subchapter; and the requirements of Chapter 350 of this title (relating to Texas Risk Reduction Program) for any release or threatened release of hazardous substances into the environment that may constitute an imminent and substantial endangerment to public health and safety or the environment. Where there is a conflict between the requirements of Chapter 350 of this title and the requirements of Texas Health and Safety Code, Chapter 361, Subchapter F and this subchapter, the requirements of Texas Health and Safety Code, Chapter 361, Subchapter F and of this subchapter shall apply.</content><note type="source"><p>Source Note: The provisions of this §335.341 adopted to be effective September 9, 1991, 16 TexReg 4624; amended to be effective July 22, 1998, 23 TexReg 7369; amended to be effective September 23, 1999, 24 TexReg 7426; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scK/s335.342"><num value="335.342">§335.342</num><heading>Definitions</heading><content>Definitions set forth in the Act that are not specifically included in this section shall also apply. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Agreed order or agreed administrative order--An administrative order issued by the commission and agreed to by one or more PRPs for the purpose of settling potential liability for the remedial investigation and/or remedial action concerning a facility proposed for listing, or listed on, the State Registry.(2) Divisible--Hazardous substance(s) released or threatened to be released at or from a facility that are capable of being managed separately under a remedial action plan.(3) Facility--In accordance with the Act, §361.181(c), a facility means:(A) Any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer, public-owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft); or(B) Any site or area where a hazardous substance has been deposited, stored, disposed of, or placed or otherwise come to be located, but does not include any consumer product in consumer use or any vessel.(4) Feasibility study (FS)--A study which describes and evaluates a set of remedial action alternatives for effectively mitigating or minimizing damage to, and for providing adequate protection of, the public health and safety and the environment in accordance with the requirements of §335.348 of this title (relating to General Requirements for Remedial Investigations).(5) Good faith offer--A written proposal by one or more PRPs which is not contingent on participation of other PRPs which, in the judgment of the executive director, will:(A) In the case of a good faith offer to fund or perform a remedial investigation, fully and effectively determine the nature and extent of the release or threatened release of hazardous substances and its impact on air, soils, groundwater, and surface water, both within and beyond the boundaries of the facility. The executive director will not consider an offer a good faith offer unless it is an offer to fully fund or perform the remedial investigation except in a claim of divisibility; or(B) In the case of a good faith offer to fund or perform a remedial action, fully and effectively mitigate or minimize damage to, and provide adequate protection of, the public health and safety and the environment. The executive director will not consider an offer a good faith offer unless it is an offer to fully fund or perform the remedial action except in a claim of divisibility.(6) Hazard ranking system--The method used by the EPA and the agency to evaluate the relative potential of hazardous substance releases to cause health or safety problems, ecological or environmental damage. The scoring system was developed by the EPA as set out in 40 Code of Federal Regulations (CFR) Part 300, Appendix A, as amended.(7) Hazardous and Solid Waste Remediation Fee Account--The fund as described in the Texas Health and Safety Code, §361.133.(8) Health and safety plan--A document that addresses the protection of on-site personnel and the public from potential hazards associated with implementing the remedial investigation or remedial action at a particular facility. The plan shall conform to applicable Occupational Safety and Health Administrative Rules, including but not limited to relevant portions of 29 CFR §1910 and §1926.(9) Imminent and substantial endangerment--A danger is imminent if, given the entire circumstances surrounding each case, exposure of persons or the environment to hazardous substances is more likely than not to occur in the absence of preventive action. A danger is substantial if, given the current state of scientific knowledge, the harm to public health and safety or the environment which would result from exposure could cause adverse environmental or health effects.(10) Implementation schedule--A document describing the sequence, duration and interdependency of each activity to be conducted during a remedial investigation or remedial action.(11) Nonparticipating PRPs--Potentially responsible parties who:(A) Are unwilling or unable to join in the making of a good faith offer;(B) Are unwilling or unable to become a party to an agreed order to perform an RI/FS, similar study, or remedial action; or(C) Intentionally violate the terms of an agreed order so as to substantially interfere with the achievement of the purposes of the agreed order.(12) Operation and maintenance plan--A document detailing the necessary operation and maintenance, inspection, and monitoring activities, including schedules, required to maintain the attainment of performance goals after completion of the implementation phase of the remedial action.(13) Oversight costs--All administrative costs and costs for technical and legal services incurred by the agency, or agents or contractors for the agency, incurred in the determination of superfund eligibility, identification of PRPs, oversight of the remedial investigation and remedial action, plus all such costs incurred in verifying compliance by PRPs with the terms of any agreed order which may be issued and costs incurred by the agency for delisting a site from the State Registry and cost recovery costs.(14) Potentially responsible party (PRP)--A person potentially responsible for solid waste as defined in Texas Health and Safety Code, §361.271 and §361.275(g).(15) Presumptive remedy--A remedy in a commission document titled "Presumptive Remedies" which describes site specific remedial alternatives for a facility in lieu of a full feasibility study as required by §335.348 of this title.(16) Quality assurance project plan (QAPP)--A document describing in comprehensive detail the necessary quality assurance, quality control, and other technical activities that must be implemented to meet the data quality objectives during a remedial investigation or remedial action.(17) Remedial action (RA)--An action, including remedial design and post-closure care, consistent with a remedy taken instead of or in addition to a removal action in the event of a release or threatened release of hazardous substances into the environment to prevent or minimize the release of a hazardous substance so that the hazardous substance does not cause an imminent and substantial danger to present or future public health and safety or the environment. A remedial action shall be conducted in accordance with Chapter 350, Subchapter B of this title (relating to Remedy Standards).(18) Remedial action drawings and specifications--Documents that include the drawings showing the scope, extent, and character of the work to be performed during the remedial action and the written technical descriptions of materials, equipment, remediation systems, standards and workmanship to be applied during the remedial action.(19) Remedial design (RD)--A design consisting of the remedial action drawings and specifications and other documents developed for the remedial action in accordance with the requirements of §335.349(d) of this title (relating to General Requirements For Remedial Activities).(20) Remedial investigation (RI)--An investigative study (i.e., an affected property assessment conducted in accordance with Chapter 350, Subchapter C of this title (relating to Affected Property Assessment) which may include removals and/or a feasibility study, in addition to the development of protective concentration levels in accordance with Chapter 350, Subchapter D of this title (relating to Development of Protective Concentration Levels) designed to adequately determine the nature and extent of a release or threatened release of hazardous substances and, as appropriate, its impact on air, soils, groundwater, and surface water, both within and beyond the boundaries of the facility in accordance with the requirements of §335.348 of this title.(21) Responsible party (RP)--A person responsible for solid waste as defined in Texas Health and Safety Code, §361.271 and §361.275(g).(22) Sampling and analysis plan (SAP)--A document describing the specific sampling and analytical protocols to be implemented during a remedial investigation or remedial action.(23) Settlement offer--A written offer by a potentially responsible party to fund or perform less than a full and complete remedial investigation and/or remedial action.(24) Spill/release contingency plan--A document describing the sequences, procedures, and requirements to be implemented to protect both workers at the facility and the public from hazardous exposure to releases or spills resulting from the remedial action.(25) Substantial change in use--A physical or functional alteration of a facility, the effect of which is to interfere significantly with a proposed or ongoing remedial investigation, proposed, ongoing, or completed remedial action or to expose public health and safety or the environment to a significantly increased threat of harm. The term includes, but is not limited to, actions such as the erection or razing of a building or other structure at the facility, the use of a facility for agricultural production, the paving over of a facility, the creation of a park or other public or private recreational use on the facility, and any other alteration of the site or activity which could interfere with the performance of a remedial investigation or remedial action.</content><note type="source"><p>Source Note: The provisions of this §335.342 adopted to be effective September 9, 1991, 16 TexReg 4624; amended to be effective July 22, 1998, 23 TexReg 7369; amended to be effective September 23, 1999, 24 TexReg 7426; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scK/s335.343"><num value="335.343">§335.343</num><heading>Ranking of Facilities</heading><content>(a) The relative priority for action needed at a facility investigated by the executive director for possible listing on the State Registry may be based on the following relevant factors:(1) A superfund hazard ranking system (HRS). The Superfund HRS is a methodology designed to determine a numerical score for a facility based on the judgment of the executive director concerning various factors which may impact the public health and safety or the environment.(2) Other relevant factors including:(A) community interests;(B) simplicity;(C) costs of investigation and remedial action;(D) estimated time to complete the remedial action; or(E) any other factor that the executive director determines is relevant and significant to the priority ranking of the facility.(b) Upon appropriate investigation by the executive director, a facility will be assigned a Superfund HRS score. A facility may be proposed for listing on the State Superfund Registry if it is assigned a Superfund HRS score 5.0 or greater.(c) The relative priority for action at facilities listed on the State Registry will be periodically reviewed and revised by the executive director as necessary to accurately reflect the need for action at the facilities.(d) The commission shall annually publish an updated state registry identifying each facility and the relative priority for action at each listed facility.(e) If a facility has been deleted in accordance with §335.344 of this title (relating to Delisting and Modifications) based, in whole or in part, on the facility being addressed pursuant to Chapter 333 of this title (relating to Voluntary Cleanup Programs), and the executive director determines that the facility is no longer being adequately addressed, the facility shall automatically revert to the status the facility had immediately before the facility was deleted from the Registry in accordance with the Act, §361.189. No public meeting is required under this subsection.</content><note type="source"><p>Source Note: The provisions of this §335.343 adopted to be effective September 9, 1991, 16 TexReg 4624; amended to be effective July 22, 1998, 23 TexReg 7369.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scK/s335.344"><num value="335.344">§335.344</num><heading>Delisting and Modifications</heading><content>(a) Any PRP of a facility listed or proposed for listing on the State Registry may request the executive director to delete such facility from the Registry, modify the facility's priority ranking within the Registry, or modify any information regarding such facility by submitting a written statement setting forth the grounds of the request. The PRP shall submit to the executive director any information as may be reasonably required to enable the executive director to further evaluate the facility including, but not limited to, information on all factors used to develop a Superfund HRS score and to make a determination on the request. The executive director may initiate the delisting procedures described in this section.(b) The executive director shall hold a public meeting to receive comment. This meeting is not a contested case hearing within the meaning of Texas Government Code, Chapter 2001. This meeting shall be held upon requests filed with or initiated by the executive director under subsection (a) of this section. At least 30 days prior to the date set forth for the meeting, notice shall be provided by first class mail to all other PRPs, and by publication in a newspaper of general circulation in the county where the facility is located. The person submitting the request, if any, shall bear the cost of publication of the notice.(c) In making a determination under subsection (a) of this section, the executive director will consider the following:(1) the extent to which the facility has been remediated under the terms of any removals and remedial action agreed to by the executive director;(2) what further action, if any, is appropriate;(3) whether the release no longer poses an imminent and substantial endangerment to public health and safety or the environment and, therefore, taking further action is not appropriate;(4) whether, because of the nature of any removals and the remedial action implemented at the facility, it is not yet feasible to make a determination that the remedial action has effectively remediated the release or threatened release of hazardous substances;(5) whether the site has been accepted under the voluntary cleanup program as set out in Chapter 333 of this title (relating to Voluntary Cleanup Programs); or(6) whether the site has been deferred to a state or federal agency for further action.(d) With the exception of subsection (c)(5) and (c)(6) of this section, no requests for the delisting of a facility from the State Registry or requests to modify information about a facility eligible for listing on the Registry will be granted unless, at a minimum, the facility has been investigated under the terms of a remedial investigation approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §335.344 adopted to be effective September 9, 1991, 16 TexReg 4624; amended to be effective April 14, 1997, 22 TexReg 3231; amended to be effective July 22, 1998, 23 TexReg 7369; amended to be effective September 23, 1999, 24 TexReg 7426.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scK/s335.345"><num value="335.345">§335.345</num><heading>Requests for Information or Production of Documents</heading><content>(a) The executive director may submit requests for information and requests for production of documents as authorized by the Act, §361.182 to any person who has information or documents which in the executive director's opinion are necessary for the adequate investigation or remediation of a facility listed on the Registry or that the executive director has reason to believe should be listed on the State Registry. The requested information or documents shall be produced within 45 days from the date of request. If the requested information or documents are not produced within 45 days, the executive director may petition the commission to issue an order directing compliance with the requests for information or production of documents. The executive director shall serve a copy of the petition on the person to whom the request for information or production of documents was directed at least 20 days prior to the scheduled date of commission action on the petition. The person to whom the request for information or production of documents was directed may appear before the commission and present evidence and argument on the petition or in support of a claim asserted under subsection (b) of this section, or the commission may refer the matter to the office of hearings examiners for the taking of evidence.(b) Information or documents provided to the executive director in accordance with this section are subject to the Public Information Act and its exceptions.</content><note type="source"><p>Source Note: The provisions of this §335.345 adopted to be effective September 9, 1991, 16 TexReg 4624; amended to be effective July 22, 1998, 23 TexReg 7369.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scK/s335.346"><num value="335.346">§335.346</num><heading>Removals and Preliminary Site Investigations</heading><content>(a) For facilities listed on the Registry or proposed for listing on the Registry, no person may perform any partial or total removals at such facility or conduct preliminary investigations of any type at such facility until written authorization of the executive director has been received and notice and opportunity for comment has been provided to all other potentially responsible parties.(b) To expedite the executive director's consideration of a proposal to conduct removals or preliminary investigations at a facility, the person proposing such actions shall submit to the executive director:(1) a workplan describing the removal and/or investigation activities proposed;(2) a health and safety plan;(3) a quality assurance project plan; and(4) an implementation schedule for completing various subtasks identified in the workplan.(c) Any authorization by the executive director to perform preliminary investigations, investigation activities, or partial or total removals at a facility does not constitute a finding or determination by the executive director that such preliminary investigation constitutes an approved remedial investigation or that the removal constitutes the final remedial action. An authorization by the executive director to perform any partial or total removals or investigation activities also does not constitute a determination or finding by the executive director that any release or threatened release attributed to the removed materials is divisible as defined in Texas Health and Safety Code, §361.276.(d) Pursuant to Texas Health and Safety Code, §361.133(c)(1) - (4) and (g), the executive director may perform necessary and appropriate removal and remedial action at sites at which solid waste or hazardous substances have been disposed if funds from a liable party, independent third party, or the federal government are not sufficient for the removal or remedial action. The executive director may also perform removals under Texas Health and Safety Code, §361.133(c)(5) to protect human health and the environment.</content><note type="source"><p>Source Note: The provisions of this §335.346 adopted to be effective September 9, 1991, 16 TexReg 4624; amended to be effective July 22, 1998, 23 TexReg 7369; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scK/s335.347"><num value="335.347">§335.347</num><heading>Financial Capability, Liens, and Cost Recovery Actions</heading><content>(a) Financial capability general. The executive director may make a determination of whether any potentially responsible party (PRP) is financially capable of participating in any facility investigation or remediation. Such a determination may be based on some or all of the following financial information:(1) a PRP's audited financial statements;(2) a PRP's federal or state income tax returns;(3) a PRP's gross and net income for each of the preceding three years;(4) a PRP's net worth for each of the preceding three years;(5) a PRP's current cash flow position;(6) a PRP's long-term liabilities;(7) the liquidity of a PRP's assets; and(8) any other data requested under §335.345 of this title (relating to Requests for Information or Production of Documents), which in the opinion of the executive director is relevant to a determination of the ability of the PRP to participate in a facility investigation or remediation.(b) Homesteads. The executive director shall determine whether a PRP is financially capable of conducting any necessary remediation studies or remedial action if the PRP is an individual whose homestead includes the facility subject to, or affected by, a remedial action. The value of an individual's homestead may not be included in the total amount of the individual's assets if:(1) the individual is occupying the homestead as a home; and(2) the fair market value of the homestead is $250,000 or less.(c) Liens under Texas Health and Safety Code, §361.194.(1) Filing of lien. If the executive director files a lien on property, the executive director shall send a copy of the filed lien to the last known address of the owner of the property.(2) Financial ability to satisfy lien. In making a determination whether to prepare an affidavit for lien or whether a lien is satisfied, the executive director may take into account a landowner's financial ability to satisfy the lien, including consideration of whether the landowner received financial compensation for the disposal of any substance addressed by the remedial action and whether the real property that is the subject of the lien:(A) is a homestead and is being occupied as a home by the landowner; and(B) has a fair market value of $250,000 or less.(d) Cost recovery actions.(1) Homesteads. The executive director may not file a cost recovery action under Texas Health and Safety Code, §361.197, against an individual if the individual's only significant asset is a homestead that:(A) includes the facility subject to, or affected by, a remedial action;(B) is occupied by the individual as a home; and(C) has a fair market value of $250,000 or less.(2) Limitation on filing. A cost recovery action against the responsible parties that have not complied with the terms of an administrative order under Texas Health and Safety Code, §361.188, may be filed by the agency no later than one year after all remedial action has been completed.(e) Fair market value. For the purposes of this section, the fair market value of a homestead is the market value ascribed to a property by the tax appraisal authority of the county or counties in which the property is located, exclusive of any downward adjustment related to contamination. If this information is unavailable, the executive director may determine the fair market value of the property, which excludes any downward adjustment related to contamination, from information available at the time.(f) PRP information.(1) The PRP shall provide the following information within 90 days after receipt of a written request by the executive director so that the executive director may conduct the determinations under subsections (b) - (d) of this section:(A) information listed in subsection (a) of this section;(B) evidence that the subject property is the individual's homestead; and(C) evidence that the individual is occupying the property as a home.(2) The PRP may request an extension of the required time frame for providing documents if the extension is requested by the PRP within the initial 90-day time frame.(3) For the purposes of this section, the executive director may determine that the property is not a homestead that is occupied by the individual as a home if the PRP does not provide the information requested in paragraph (1) of this subsection within the required time frame, including any extensions granted by the executive director. The executive director shall provide any such determination in writing to the PRP. The executive director's determination that the property is not a homestead that is occupied by the individual as a home is final and appealable under Texas Health and Safety Code, §361.321.</content><note type="source"><p>Source Note: The provisions of this §335.347 adopted to be effective September 9, 1991, 16 TexReg 4624; amended to be effective July 22, 1998, 23 TexReg 7369; amended to be effective June 3, 2004, 29 TexReg 5407.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scK/s335.348"><num value="335.348">§335.348</num><heading>General Requirements for Remedial Investigations</heading><content>(a) Unless otherwise directed by the commission, a remedial investigation as approved by the executive director shall be completed before the executive director's selection of the remedial action, except for removals and preliminary site investigations in accordance with §335.346 of this title (relating to Removals and Preliminary Site Investigations).(b) A similar study may be approved by the executive director as an appropriate alternative to the performance of a full remedial investigation when necessary to avoid delay, to make more effective use of resources or when such similar study is sufficient to adequately characterize a site.(c) The contents of the remedial investigation as approved by the executive director, will depend on the particular circumstances of each specific facility. Under any remedial investigation, however, sufficient information must be collected and evaluated to allow the executive director to select an appropriate remedial action.(d) A remedial investigation may include the following, as appropriate to a particular facility, for the purpose of allowing the executive director to select an appropriate remedial action:(1) investigations of surface water and sediments necessary to characterize hydrologic features such as surface drainage patterns, areas of erosion and sediment deposition, surface waters, floodplains, and actual or potential hazardous substance migration routes within these areas. Properties of surface and subsurface sediments, which would influence the type and rate of hazardous substance migration or affect the ability to implement alternative remedial actions, shall be characterized;(2) investigations to adequately characterize the nature and extent of hazardous substances in the soils encompassing the facility. Properties associated with the soils, which would influence the type and rate of hazardous substance migration or affect the ability to implement alternative remedial actions, shall be characterized;(3) investigations of hydrogeology and geology to adequately characterize the nature and extent of hazardous substances in the groundwater and the features which affect the fate and transport of those hazardous substances. This should include, but is not limited to, the physical properties and distribution of bedrock and unconsolidated materials, groundwater flow rate and gradient for contaminated and potentially contaminated aquifers, groundwater divides, areas of groundwater recharge and discharge, and location of public and private groundwater wells;(4) information regarding local climatological characteristics which are likely to affect the hazardous substance migration such as: rainfall patterns; frequency of storm events; temperature variations; prevailing wind direction; and wind velocity;(5) an ecological risk assessment;(6) descriptions of the location, quantity, horizontal and vertical extent, concentrations and sources of hazardous substances. Information on the physical and chemical characteristics and the toxicological effects of hazardous substances shall be provided, if available; and(7) a feasibility study.(e) Protective concentration levels shall be developed in accordance with Chapter 350, Subchapter D of this title (relating to Development of Protective Concentration Levels).(f) A workplan for a remedial investigation shall be submitted to the executive director for final review and possible modifications and shall include the following:(1) a sampling and analysis plan covering all sampling activities to be undertaken in accordance with the remedial investigation;(2) a quality assurance project plan to ensure the integrity of all samples taken in accordance with the remedial investigation;(3) a health and safety plan to describe steps to be taken to assure the health and safety of all personnel engaged in implementing the remedial investigation; and(4) an implementation schedule for all aspects of the remedial investigation.(g) Treatability studies may be required as necessary to provide information to evaluate remedial action alternatives.(h) In evaluating the acceptability of a remedial investigation, the executive director may require the utilization of published agency and EPA technical guidance documents.(i) A health and safety plan shall be prepared that addresses the protection of on-site personnel and the public from potential hazards associated with implementing the remedial investigation at a particular facility.(j) A report shall be prepared at the completion of the remedial investigation and submitted to the executive director for review, possible modification, and final approval.(k) The selection of the remedial alternative shall be made according to the process outlined in the guidance document "Presumptive Remedies for Soils at Texas State Superfund Sites" or other applicable presumptive remedy documents, unless the executive director determines that a feasibility study must be conducted.(l) The remedial action for a particular facility shall be selected based on the remedial alternative that the executive director determines to be the lowest cost alternative which is technologically feasible and reliable, effectively mitigates and minimizes damage to the environment, and provides adequate protection of the public health and safety and the environment.(m) All engineering evaluations, plans, and specifications included in the feasibility study or similar study must be prepared and submitted in accordance with the Texas Engineering Practice Act.(n) All engineering and geoscientific information submitted to the agency shall be prepared by, or under the supervision of, a licensed professional engineer or licensed professional geoscientist, and shall be signed, sealed, and dated by qualified professionals as required by the Texas Engineering Practice Act and the Texas Geoscience Practice Act and the licensing and registration boards under these acts.</content><note type="source"><p>Source Note: The provisions of this §335.348 adopted to be effective September 9, 1991, 16 TexReg 4624; amended to be effective July 22, 1998, 23 TexReg 7369; amended to be effective September 23, 1999, 24 TexReg 7426; amended to be effective September 1, 2003, 28 TexReg 6915.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scK/s335.349"><num value="335.349">§335.349</num><heading>General Requirements for Remedial Activities</heading><content>(a) Based on the proposals set forth in the feasibility study, the presumptive remedy, or other similar study, elements from different remedial action alternatives as proposed in a remedial investigation as well as any other information available to the executive director, the executive director shall select a proposed remedial action. After the selection of the proposed remedial action, the executive director shall hold a public meeting to discuss the proposed action, as required by the Act, §361.187. This meeting is not a contested case hearing within the meaning of Texas Government Code, Chapter 2001. Persons desiring to submit comments are encouraged to do so prior to the public meeting. Written comments should be submitted to the executive director at least 5 days prior to the date set for public meeting. All other comments shall be presented in the public meeting.(b) This subsection describes the administrative procedures for modifying the proposed remedial action after the date of the initial public meeting to discuss the remedial action for the site.(1) A minor change in the proposed remedial action is one that does not significantly affect the scope, performance, or cost of the proposed remedial action. The executive director will document minor changes in the project records without the necessity of another public meeting.(2) A significant change in the proposed remedial action is one that materially affects the scope, performance, or cost of the proposed remedial action, but uses the same approach and results in a remedial action as least as protective as originally proposed. For significant changes, the executive director shall notify the PRPs by certified mail of the changes and issue a public notice in the Texas Register and in a newspaper of general circulation in the county in which the facility is located. The notice shall provide information regarding the significant changes in the proposed remedial action; however, a public meeting or opportunity for public comment is not required. If the commission has not entered into an administrative order to perform the remedial action, a significant change will extend the schedules provided in the Act, §361.187(d).(3) A fundamental change in the proposed remedial action is one that uses a different approach to achieve the remedial action goals, or one that uses the same approach, but results in a remedial action that is less protective than that originally proposed. A major change in technology to address the contamination is a fundamental change. For fundamental changes, the executive director shall hold another public meeting to discuss the proposed changes in accordance with the Act, §361.187, and as described in subsection (a) of this section. This newly proposed remedial action shall supersede the remedial action originally proposed in the initial public meeting.(c) Engineering documents submitted in connection with the remedial action must be approved by the executive director and must demonstrate compliance with relevant cleanup standards, except as provided in the Act, §361.193. The scope of these documents will depend on the nature and complexity of the proposed remedial action and may vary from facility to facility.(d) The executive director shall establish the minimum requirements for the remedial design, based on the specific characteristics of the facility and the remedial action. If appropriate, the executive director may waive any of the requirements in this subsection for a particular facility. Typical remedial design requirements include, but are not limited to:(1) remedial action drawings and specifications;(2) quality assurance project plan;(3) sampling and analysis plan;(4) spill/release contingency plan;(5) implementation schedule; and(6) an operations and maintenance plan.(e) A health and safety plan shall be prepared that addresses the protection of on-site personnel and the public from potential hazards particular to a facility while implementing the remedial action.(f) All engineering plans and specifications prepared for remedial activities must be prepared and submitted in accordance with the Texas Engineering Practice Act.</content><note type="source"><p>Source Note: The provisions of this §335.349 adopted to be effective September 9, 1991, 16 TexReg 4624; amended to be effective July 22, 1998, 23 TexReg 7369.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scK/s335.350"><num value="335.350">§335.350</num><heading>Defense to Liability and Claims of Divisibility</heading><content>(a) The burden of establishing that a PRP qualifies for any defenses to liability set forth in the Act, §361.275 or that a release is divisible as set forth in the Act, §361.276 lies with the PRP asserting such claim.(b) A PRP must demonstrate to the executive director its entitlement to a defense or claim under the Act, §361.275 or §361.276. The determination by the executive director of a PRP's request for limitation of liability under these sections of the Act is a discretionary act which does not entitle the PRP to an appeal to the commission or an adjudicatory hearing on such determination.(c) The executive director will not consider claims of divisibility until a site has been adequately characterized by a remedial investigation.(d) A determination by the executive director on a defense or claim asserted under the Act, §361.275 or §361.276 shall have no res judicata or collateral estoppel effect on a PRP's ultimate liability for remediation of a facility as determined in subsequent commission proceedings or in district court.</content><note type="source"><p>Source Note: The provisions of this §335.350 adopted to be effective September 9, 1991, 16 TexReg 4624; amended to be effective July 22, 1998, 23 TexReg 7369.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scK/s335.351"><num value="335.351">§335.351</num><heading>Settlement Agreements</heading><content>(a) General purpose. The commission encourages PRPs to enter into negotiated settlement agreements which shall include an agreed administrative order with the commission so that an effective remedial investigation and remedial action of a facility can be quickly implemented while at the same time resolving PRP's apparent liability for the facility. The goal of the executive director in negotiating PRP settlements is to obtain a complete remedial investigation and remedial action of the facility by PRPs, or to collect from PRPs 100% of the agency's cost of performing a complete remedial investigation and remedial action of the facility. PRPs shall have 60 days after the end of the good faith offer period to negotiate a settlement/final administrative order. Settlement negotiations shall run concurrently with agreed order negotiations. Settlements may also be made after an order is issued.(b) Settlement.(1) In the case of an offer which is less than a good faith offer to fund or perform a remedial investigation or remedial action, the executive director's consideration of the offer may be based on:(A) the relationship between the parties' actions in storing, processing, and disposing of hazardous substances and the remedial action required to eliminate the release or threatened release;(B) the volume of hazardous substances each party is responsible for at the site to the extent that the costs of the remedial action are based on the volume of waste present;(C) consideration of toxicity or other waste characteristics if those characteristics affect the cost to eliminate the release or threatened release;(D) a party's cooperation with state agencies, its cooperation or non-cooperation with the pending efforts to eliminate the release or threatened release, or a party's actions concerning storing, processing, or disposing of hazardous substances, as well as the degree of care that the party exercised; and(E) a party's ability to pay.(2) The commission may consider a settlement proposal for remedial investigation and/or remedial action of less than 100% of a facility's remedial investigation and/or remedial action costs. Upon settling with cooperative parties, the commission will vigorously seek all remaining relief, including full cost recovery of monies expended from the Hazardous and Solid Waste Remediation Fee Account, including penalties, damages, and interest where appropriate, as well as the agency's oversight costs, from parties whose non-cooperation prevented the achievement of a complete settlement.(c) Mixed funding. Mixed Funding means use of funds from federal, state, and private party sources, or any combination of those sources, to fund a timely remedial action. Mixed funding may be used in the following circumstances.(1) In order to achieve an expeditious remedial action of a facility listed on the Registry, the commission may agree to reimburse parties to a settlement agreement from the Hazardous and Solid Waste Remediation Fee Account with interest, for certain costs incurred as a result of the timely implementation of the remedial action that the parties agree to perform but which the commission agrees to finance in whole or in part. The commission may agree to utilize funds from whatever other federal or state sources are available to the commission for the funding of a facility remediation.(2) Mixed funding shall be provided only to PRPs whom the commission has found to be eligible and who have entered into an agreed administrative order with the commission. The agreed administrative order shall identify remedial action tasks to be addressed by the mixed funding, costs to be borne by the Hazardous and Solid Waste Remediation Fee Account and the terms of agreement.(3) A PRP must submit sufficient documentation, as requested by the executive director, to support its request for mixed funding.(4) The commission's granting of a request for mixed funding does not diminish or alter the standard and scope of liability as set out in the Act. The commission will not approve mixed funding based solely on the grounds that a share of wastes at a site may be attributable to an unknown or financially nonviable party. In addition, the availability or the amount of any fund-financing for a particular site will not be dependent on consistency with any volumetric allocation.(5) Good faith negotiations and early cooperation of settlers will be considered in mixed funding requests. The executive director shall only consider mixed funding for remedial action if the PRP meets the following conditions:(A) the PRP participated in the remedial investigation; or(B) the PRP did not participate in the remedial investigation and the PRP agreed to reimburse all agency expenses associated with the remedial investigation.(6) If a PRP is found to be eligible for mixed funding, the executive director shall make an initial determination regarding the amount of funding to be provided. This determination is solely within the discretion of the executive director and is not subject to adjudication in an administrative hearing or appeal to the commission. A determination of eligibility is not a funding commitment as actual funding will depend on availability of funds and approval of the commission.(7) Where a remedial action has been completed at a facility pursuant to a mixed funding agreement, the Hazardous and Solid Waste Remediation Fee Account shall be subject to an obligation for subsequent remedial actions at the same facility only to the extent that such subsequent actions are necessary by reason of failure of the original remedial action. Such obligation shall be in a proportion equal to, but not exceeding, the proportion contributed by the fund for the original remedial action. The fund's obligation for such future remedial action may be met through fund expenditures, or through payment by parties who were not signatories to the original agreement.(d) De minimis settlements. The commission may reach a final settlement with a PRP for only a minor portion of the response costs at a facility if the conditions in either of the following paragraphs (1) or (2) of this subsection are met.(1) A PRP can demonstrate the following:(A) the amount of the hazardous substances contributed by a particular PRP is minimal in comparison to the amounts of other hazardous substances at the facility; or(B) the toxicity or other hazardous effects of the hazardous substances contributed by a particular PRP are minimal in comparison to the toxicity or other hazardous effects of other hazardous substances at the facility.(2) The PRP can demonstrate that it:(A) is the owner of the real property on or in which the facility is located;(B) did not conduct or permit the generation, transportation, storage, treatment, or disposal of any hazardous substance at the facility; and(C) did not contribute to the release or threatened release of a hazardous substance at the facility through any action or omission.(3) Paragraph (2) of this subsection does not apply if the PRP purchased the real property with actual or constructive knowledge that the property was used for the generation, transportation, storage, treatment, or disposal of any hazardous substance.(e) Covenants not to sue.(1) The commission may, in its discretion, provide any PRP with a covenant not to sue concerning any existing or future liability resulting from a release or threatened release of a hazardous substance addressed by a remedial action if each of the following conditions is met:(A) the covenant not to sue is in the public interest as determined by criteria set forth in paragraph (2) of this subsection;(B) the granting of the covenant not to sue would expedite a remedial action approved by the commission; and(C) the PRP is in full compliance with the terms of any order issued by the commission for response to the release or threatened release for the facility concerned.(2) In assessing the appropriateness of granting a covenant not to sue and in determining the appropriate legal scope of such a covenant, the commission shall consider whether the covenant is in the public interest on the basis of such factors as the following:(A) the effectiveness and reliability of the remedial action, in light of other alternative remedies considered for the facility concerned;(B) the nature of the environmental risks remaining at the facility;(C) the extent to which performance standards are included in the order or decree;(D) the extent to which the response provides a complete remedial action for the facility, including a reduction in the hazardous nature of the substances at the facility;(E) the extent to which the technology used in the remedial action is demonstrated to be effective;(F) whether the Hazardous and Solid Waste Remediation Fee Account or other sources of funding would be available for any additional remedial actions that might eventually be necessary at the facility; and(G) whether the remedial action will be carried out, in whole or in significant part, by the PRPs themselves.(3) A covenant not to sue shall be subject to the satisfactory performance by the PRP of its obligations under any order issued by the commission for remedial actions to address the release or threatened release of a hazardous substance at the facility. A covenant not to sue concerning future liability for remediation of the facility shall not take effect until the executive director certifies that the remedial action has been completed or the ordered action has been performed in accordance with any such order issued by the commission.(4) A covenant not to sue a PRP concerning future liability for remediation of a facility may include an exception to the covenant that allows the commission to sue such person where such liability arises out of conditions which are unknown to the executive director at the time he certifies under paragraph (3) of this subsection that the remedial action has been completed at the facility. A covenant not to sue may provide that such future liability may be limited to the same proportion as that established in the original settlement agreement or order issued by the commission.(f) Discharge of liability for other PRPs. Any settlement agreement with the commission which resolves a PRP's liability for remediation of a facility does not discharge the liability of any other PRP unless its terms so provide, but it reduces the potential liability of the other PRPs by the amount of the settlement. A PRP will be afforded the opportunity to comment on any settlement agreement with the commission to which it is not a party.</content><note type="source"><p>Source Note: The provisions of this §335.351 adopted to be effective September 9, 1991, 16 TexReg 4624; amended to be effective July 22, 1998, 23 TexReg 7369.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scM"><num value="M">SUBCHAPTER M</num><heading>PRE-APPLICATION REVIEW AND PERMIT PROCEDURES</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scM/s335.391"><num value="335.391">§335.391</num><heading>Pre-application Review</heading><content>(a) Purpose. The commission recommends a pre-application review process in situations where opposition to an application is likely to exist. A pre-application review should serve to identify issues of concern; facilitate communication between a potential applicant and persons who would be affected by an application; and resolve as many points of conflict as possible prior to the submission of an application. A local review committee shall:(1) interact with the applicant in a structured manner during the pre-application review stage of the permitting process and, if necessary, during the technical review stage of the permitting process, to raise and attempt to resolve both technical and nontechnical issues of concern; and(2) produce a fact-finding report documenting resolved and unresolved issues and unanswered questions. The applicant shall submit this report to the commission with the applicant's permit application.(b) Applicability. This subchapter applies to potential permit applicants who desire to enter into agreements with affected persons and/or identify issues of local concern prior to submission of an application for a new hazardous waste management facility (including injection wells used for the disposal of hazardous waste). This subchapter shall not apply to hazardous waste management facilities for which an application has been filed, or which has otherwise been authorized to operate, as of September 1, 1985.(c) Procedure.(1) If a potential applicant decides to participate in a local review committee process, the potential applicant may so inform the persons listed in subparagraphs (A)-(C) of this paragraph, as soon as feasible after beginning informal discussions with the commission. To formally initiate the pre-application review process, the potential applicant shall file a notice of intent to file an application with the commission. Further, at the same time the potential applicant shall cause the notice to be published in a paper of general circulation in the county in which the facility is to be located. The form of this notice is specified in §335.392 of this title (relating to Notice of Intent To File a Permit Application). The potential applicant will, at the same time, send a copy of the notice by certified mail, return receipt requested, to the following persons:(A) the appropriate mayor and county judge if the proposed facility is to be located within the corporate limits or extraterritorial jurisdiction of a city; or(B) the appropriate county judge if the proposed facility is to be located within an unincorporated area of a county; and(C) the appropriate regional council of government.(2) The filing of the notice initiates the pre-application review process. The date of filing shall be the date the notice is received by the commission.(3) Local review committees shall be composed of representatives of both local and regional interests.(A) Size. A local review committee shall consist optimally of 12 individuals. However, by mutual agreement between the applicant and the persons appointing the committee, a larger committee to better represent all interest groups present in a community or a smaller committee for economic reasons may be appointed. However, the committee shall maintain a one to one ratio of regional appointments to local appointments.(B) Appointments.(i) If a proposed facility is to be located within the corporate limits or the extraterritorial jurisdiction of a city or town, the potential applicant shall ask the mayor of the city or town to make all local appointments.(ii) If a proposed facility is to be located in an unincorporated area of a county, but within five miles of the corporate limits or extraterritorial limits of any city, the potential applicant shall ask the mayor of each affected city to appoint one member. The appropriate county judge shall appoint at least one member, if available, who lives within five miles of the proposed site. The county judge shall also appoint any remaining individuals necessary to complete local appointments to the committee.(iii) If a proposed facility would not be within five miles of the corporate limits or the extraterritorial jurisdiction of a city, the potential applicant shall ask appropriate county judge to appoint at least one member, if available, who lives within five miles of the proposed site and as many other individuals from the county as are necessary to complete the local appointments.(iv) Regional appointments shall be made by the appropriate regional council of government (COG) or another regional entity such as a special district or river authority designated by the COG. An attempt shall be made to make regional appointments from as many of the interest groups outlined in subclauses (I)-(VII) of this clause, as possible:(I) organized environmental or public interest groups;(II) citizen organizations active in environmental issues;(III) industry, preferably, but not necessarily, individuals with expertise in waste management;(IV) academic community, preferably, but not necessarily, individuals trained in a technical discipline related to waste management and/or public involvement;(V) community or land use planning groups;(VI) business groups, preferably, but not necessarily individuals with experience related to the generation of waste; and(VII) public health professionals.(v) If any local official or regional entity has failed to make any appointments within 45 days after the notice of intent to file has been received by the commission, the committee will be abolished without harm to the applicant's ability to pursue the application.(vi) Every effort should be made to appoint individuals who are open-minded, willing to participate in good faith, able to devote adequate time to participation, and respected in the community or region. The committee shall reflect the diversity of the community, including but not limited to the following factors: gender, age, race, economic status, and educational level.(vii) Appointees shall not be employees or agents of the potential applicant.(viii) An individual shall not serve on more than one local review committee at any one time.(ix) The committee shall elect a chairperson who will preside over meetings.(x) The committee shall be required to select and engage the services of a professional facilitator for the purpose of coordinating the activities of the committee and preparing the report.(4) The local review committee shall meet within 21 days after all regional and local appointments have been made. The commission will provide manuals to committee members which will orient them as to what the committee's activities should be; i.e., the production of a report detailing issues resolved, issues unresolved, and unanswered questions.(5) The pre-application review process shall continue for a maximum of 180 days unless it is shortened or lengthened by mutual agreement between the potential applicant and the local review committee. In addition, by mutual agreement the applicant and the committee may continue a dialogue for the purpose of addressing new concerns and changes to the draft permit.(6) Individuals who serve on local review committees shall serve without compensation; however, reasonable expenses for travel may be provided by the applicant. The potential applicant shall provide resources to fund the facilitator and other expenses which may include clerical and technical assistance, meeting space, and/or other items which may be necessary to aid the committee in its work.(d) The committee report.(1) Any report produced by a local review committee set up under this section shall be submitted to the commission with an applicant's permit application. The executive director shall consider the report in any decision to recommend granting or denial of the permit application. The report may be offered by any party at a hearing on the application and admitted into evidence subject to applicable rules of evidence.(2) The report shall not recommend approval or disapproval of the proposed facility. Rather, it shall describe the committee's work and summarize the committee's findings. The findings shall include issues resolved, issues unresolved, and unanswered questions.</content><note type="source"><p>Source Note: The provisions of this §335.391 adopted to be effective August 26, 1986, 11 TexReg 3595; amended to be effective January 5, 1988, 12 TexReg 4847; amended to be effective January 2, 1995, 19 TexReg 10104.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scM/s335.392"><num value="335.392">§335.392</num><heading>Notice of Intent To File a Permit Application</heading><content>The following appendix will be used for purposes of this subchapter. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §335.392 adopted to be effective August 26, 1986, 11 TexReg 3595; amended to be effective January 2, 1995, 19 TexReg 10104.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scM/s335.393"><num value="335.393">§335.393</num><heading>Award of Costs</heading><content>(a) Any person other than the applicant who has participated in the local review committee process pursuant to this chapter, may be awarded, by the commission, its reasonable costs or any part thereof for technical studies and reports and expert witnesses associated with the presentation of evidence at a public hearing on the permit application subsequent to the local review committee process. Such evidence must relate to issues raised by such person in the local review committee process but which are still unresolved at the time of the commencement of the hearing on the permit applications for a hazardous waste management facility. To be eligible for an award, such person shall file a motion for recovery of costs at the end of the evidentiary portion of the public hearing.(b) In determining the appropriateness of such an award, the commission shall consider the following:(1) whether the evidence or analysis provided through such studies, reports, and witnesses is significant to the evaluation of the application;(2) whether the evidence or analysis would otherwise not have been provided in the proceeding; and(3) whether the local review committee was established in accordance with §335.391 and §335.392 of this title (relating to Pre-Application Review; and Notice of Intent to File a Permit Application).(c) The person seeking such an award shall have the burden of proof to demonstrate that the costs are reasonable and consistent with similar services performed in the area. The applicant shall have the opportunity to rebut such evidence. Costs awarded by the commission shall be taxed against the applicant. The total award granted to all such persons by the commission with respect to any particular application shall not exceed $25,000. Judicial review of any award by the commission shall be pursuant to the substantial evidence rule as provided by the Administrative Procedure and Texas Register Act (Texas Civil Statutes, Article 6252-13a).(d) Except as provided in subsection (e) of this section, when an applicant has not entered into a local review committee process, the commission, in determining the appropriateness of an award of costs, shall waive any requirement that the person seeking an award of costs has participated in a local review committee process.(e) If an applicant, after reasonable efforts to determine whether any local opposition exists to its proposed facility including, but not limited to, discussing the proposed facility with the county judge and other elected officials, does not enter into a local review committee process because of no apparent opposition or because a local review committee is not established despite the good faith efforts of the applicant, then such applicant shall not be subject to an award of costs pursuant to subsection (a) of this section.</content><note type="source"><p>Source Note: The provisions of this §335.393 adopted to be effective August 26, 1986, 11 TexReg 3595.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scN"><num value="N">SUBCHAPTER N</num><heading>HOUSEHOLD HAZARDOUS WASTES</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scN/s335.401"><num value="335.401">§335.401</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to provide requirements for persons who are involved in any combination of collecting, aggregating, offering for reuse, recycling, transporting, or disposing of household hazardous wastes and other types of household waste materials that may, due to their quantity and characteristics, pose a potential endangerment to human health or the environment if improperly handled.(b) The requirements of this subchapter apply to persons who engage in any combination of the following activities:(1) collect, aggregate, or store household hazardous waste for offering for reuse, recycling, processing, or disposal;(2) provide a point of generation pick-up service;(3) operate a mobile collection unit;(4) operate a collection event;(5) operate a permanent collection center;(6) transport any aggregated household hazardous waste; and(7) own or manage a hazardous waste processing, storage or disposal facility that receives household hazardous waste directly from the public or households.(c) The requirements of this subchapter do not apply to:(1) persons who receive from households for the purpose of reuse, recycling or reclamation any combination of used oil, batteries, antifreeze, and paint, provided such persons do not collect other household hazardous waste or other household wastes under the requirements of this subchapter;(2) persons who collect less than 100 pounds of household hazardous waste per year;(3) retailers who accept from the public only waste items that are of the same type(s) as products sold by the retailer;(4) collection events organized primarily for the purpose of collecting for processing or disposal pesticides and other wastes from agricultural operations and incidental amounts of household hazardous wastes, if no fees are charged for the collection and if registered transporters are used to haul the collected wastes to hazardous waste processing, storage, or disposal facilities; or(5) organizations that collect used electronic equipment from the public for reuse, provided such individuals do not make a determination during the collection of whether the electronics are wastes, do not handle the electronics in a manner that renders them useless, and do not collect household hazardous waste or other household wastes covered under the requirements of this subchapter.(d) Any provisions of this subchapter may be waived by the executive director for emergencies, disasters, or in other circumstances where flexibility from the requirements is necessary to protect public health and the environment.</content><note type="source"><p>Source Note: The provisions of this §335.401 adopted to be effective July 31, 2008, 33 TexReg 5947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scN/s335.402"><num value="335.402">§335.402</num><heading>Definitions</heading><content>In addition to the definitions in §3.2 of this title (relating to Definitions) and §335.1 of this title (relating to Definitions), the following words and terms, when used in this subchapter, have the following meanings:(1) Aggregate--The act of bringing together household hazardous waste that, after being separated from other household waste, is collected from two or more households and accumulated at a collection event, permanent collection center, point of generation pick-up service, mobile collection unit, or transporter's facility for the purpose of reusing, recycling, or disposing the material.(2) Collection event--A one-time or recurrent designation of a site and areas within that site for use by an operator to collect or aggregate household hazardous waste delivered to the site by individuals, households, or collectors and to store the waste for less than 48 hours.(3) Collector--Any person who accepts from two or more households any waste materials that have been separated from other household waste and offered to the collector because the generator either knows or considers the materials to be household hazardous waste. This term includes persons involved with household hazardous waste collection programs, but does not include persons delivering wastes that have not been aggregated to a collection program with which they are not affiliated.(4) Hazardous waste processing, storage, or disposal facility--A hazardous waste processing, storage, or disposal facility that has received an United States Environmental Protection Agency (EPA) permit (or a facility with interim status) in accordance with the requirements of 40 Code of Federal Regulations (CFR) Parts 270 and 124, or that has received a permit from a state authorized in accordance with 40 CFR Part 271.(5) Household--Single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreational areas.(6) Household hazardous waste--Any solid waste generated in a household by a consumer which, except for the exclusion provided in 40 Code of Federal Regulations (CFR) §261.4(b)(1), would be classified as a hazardous waste under 40 CFR Part 261. The term has the same meaning as "hazardous household waste."(7) Inclement weather--Weather that could present a hazard in the operation of a collection event, permanent collection center, mobile collection unit, or point of generation pick-up service, including temperature extremes, high winds, rain, and severe weather.(8) Mobile collection unit--A vehicle (such as a truck or trailer) that is used to aggregate household waste materials delivered by the public prior to transporting the material to a permanent collection center, collection event, or registered hazardous waste transporter facility.(9) Operator--A person responsible for the collection, aggregation, and storage of household hazardous waste and household materials at a collection event or permanent collection center, in a point of generation pick-up service or mobile collection unit, or in any combination of collection programs; or, if the context clearly refers to an operator of a hazardous waste processing, storage, or disposal facility, the term has the same meaning as defined in §335.1 of this title.(10) Permanent collection center--A designated site and facilities used to collect and aggregate household hazardous wastes on an ongoing basis and to store the wastes for 48 hours or longer.(11) Personnel--All individuals who perform tasks at or oversee the operations of a collection event, permanent collection center, mobile collection unit, or point of generation pick-up service, and whose actions or failure to act may result in noncompliance with the requirements of this subchapter.(12) Point of generation pick-up service--A service to collect household hazardous waste at generating households, either through direct contact with the generators or by collection of household hazardous waste left at curbside or in another location at the household.</content><note type="source"><p>Source Note: The provisions of this §335.402 adopted to be effective July 31, 2008, 33 TexReg 5947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scN/s335.403"><num value="335.403">§335.403</num><heading>General Requirements for Household Hazardous Waste Collections</heading><content>(a) Except as provided in subsection (e) of this section, no person may collect or aggregate household hazardous waste that has been segregated from other solid waste, provide point of generation pick-up service, operate a mobile collection unit, operate a collection event, or operate a permanent collection center without having first submitted a current notification to the executive director, in accordance with subsection (b) of this section.(b) On a form provided by the commission, an operator shall submit a signed notification to the executive director at least 45 days prior to conducting activities covered by this subchapter. For on-going collection programs, such as multiple collection events at a single location, point of generation pick-up services, and permanent collection centers, the notification must be resubmitted whenever the information provided in the notification changes. For multiple collection events and mobile collection units, each location where a collection will be held must be covered in a separate notification, but multiple collections at one location can be covered by a single notification if the same information other than dates applies to each collection. The notification must include the following information:(1) name and address of the operator;(2) name, address, and telephone number of an individual to be the contact person for the operator;(3) date(s) and times of the planned collection(s) or days and hours of operation of a permanent collection center, point of generation pick-up service, or mobile collection unit(s), including inclement weather dates if applicable;(4) for a collection event, permanent collection center or mobile collection unit, the address of the collection site and the part of the site that will be used for collections;(5) for a point of generation pick-up service or mobile collection unit, the address of the collection event, permanent collection center, or registered hazardous waste transporter's facility where collected wastes will be delivered, or a statement that the aggregated household hazardous waste will be transported to a hazardous waste processing, storage, or disposal facility by a registered hazardous waste transporter from the collection site;(6) the name of the person who owns the property where a permanent collection center is located, where a collection event will be held, or where a mobile collection unit will be used; a signed letter that clearly gives permission for the use of the property for the stated purpose must be attached to the notification;(7) areas that are planned to be covered by the collection effort, i.e., city, county, precinct, neighborhood, district, region, etc.;(8) the types by waste category of each type of household materials that will be collected;(9) permanent collection centers (including sites where household hazardous waste will be stored for 48 hours or longer) must include a properly completed TCEQ Core Data Form (Form TCEQ-10400) with the notification; and(10) the planned disposition of wastes that are received in the collection efforts, including the name(s), address(es), and United States Environmental Protection Agency (EPA) identification number(s) of the transporter(s) to be used and the name, address, and EPA identification number of each recycling and hazardous waste facilities that is planned to receive the wastes collected.(c) Along with the notification described in subsection (b) of this section, owners or operators of a permanent collection center shall submit an originally signed financial assurance mechanism acceptable to the executive director to provide for proper closure of the site(s). Prior to the notification, owners or operators must provide sufficient information to the executive director to allow the agency to determine an acceptable amount, format and type of financial assurance. Local governments as well as state and federal entities whose debts and liabilities are the debts and liabilities of a state or the United States are not subject to this subsection. Except for those operated by a local government or state or federal entity, a permanent collection center may not operate without obtaining and maintaining financial assurance acceptable to the executive director.(d) In addition to the other requirements of this subchapter, an operator of a collection event, permanent collection center, point of generation pick-up service, mobile collection unit, or any combination of these:(1) shall develop and follow a complete operational plan as required in §335.405(a) of this title (relating to Operational Plans) and;(2) may not collect hazardous waste or Class 1 waste, as defined by this chapter, unless authorized under a permit or authorization issued under this chapter or Chapter 330 of this title (relating to Municipal Solid Waste);(3) shall ship, for proper processing or disposal, aggregated household hazardous waste only to a hazardous waste processing, storage, or disposal facility that is authorized to receive household hazardous waste and that has agreed to accept the waste, except in cases where aggregated household hazardous waste is shipped to a permanent collection center for the purpose of consolidating aggregated household hazardous waste;(4) shall have collected household hazardous waste transported in one of the following manners:(A) any aggregated household hazardous waste from a collection event or permanent collection center must be transported only by a registered hazardous waste transporter under a uniform hazardous waste manifest to a hazardous waste processing, storage, or disposal facility authorized to receive household hazardous waste that has agreed to accept the wastes or as universal waste if allowed under Subchapter H, Division 5 of this chapter (relating to Universal Waste Rule), except in cases where aggregated household hazardous waste is shipped to a permanent collection center for the purpose of consolidating aggregated household hazardous waste;(B) the operator may transport any household hazardous waste on a point of generation pick-up service or mobile collection unit to a permanent collection center, collection event, or registered hazardous waste transporter's facility; or(C) the operator may have any household hazardous waste collected by a point of generation pick-up service or mobile collection unit transported by a registered hazardous waste transporter under a uniform hazardous waste manifest to a hazardous waste processing, storage, or disposal facility authorized to receive household hazardous waste that has agreed to accept the wastes or as universal waste if allowed under Subchapter H, Division 5 of this chapter;(5) shall maintain records related to household hazardous waste collected and processed or disposed for one year after processing or disposal of the wastes; and(6) shall report annually to the executive director the amounts of household hazardous waste and household materials collected. The operator shall submit the report by April 1st of each year for the previous calendar year, using a form provided by the commission.(e) Owners or operators of hazardous waste processing, storage, or disposal facilities who accept or intend to accept household hazardous waste directly from households are not subject to the requirements of this subchapter other than the reporting requirements in subsection (d)(6) of this section, provided that the acceptance of household hazardous waste is authorized by their operating permit.</content><note type="source"><p>Source Note: The provisions of this §335.403 adopted to be effective July 31, 2008, 33 TexReg 5947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scN/s335.405"><num value="335.405">§335.405</num><heading>Operational Plans</heading><content>(a) A person conducting activities under this subchapter shall develop a complete operational plan prior to the collection of household materials and shall revise the plan as needed for ongoing and future operations. The operational plan must accurately depict the specific plan for how all wastes and materials will be handled during and after collection efforts. The operational plan:(1) must identify the nature, type, and quantity of household hazardous waste and other materials proposed for collection and reuse, recycling, processing or disposal;(2) must describe the source(s), amounts and types of wastes that would be accepted at a collection event, permanent collection center, point of generation pick-up service, mobile collection unit, or any combination of these, and if the collectors involved in the programs are not under a single operator, must describe the source(s), amounts, and types of wastes that will be transferred by a point of generation pick-up service or mobile collection unit to a collection event or permanent collection center or that will be transferred to a different permanent collection center for consolidation with other household hazardous waste;(3) must establish the minimum number of operator staff, contractors, volunteers, and other individuals needed to conduct collection operations at each collection event, permanent collection center, mobile collection unit, and point of generation pick-up service covered by the operational plan; the specific functions of each type of staff; and how the training requirements that apply to their functions have been or will be met;(4) must describe the planned disposition of all waste collected, including the name and United States Environmental Protection Agency (EPA) identification number of the transporter (or transporters) that will haul the aggregated household hazardous waste, and the name, address, and EPA identification number of the hazardous waste processing, storage, or disposal facility (or facilities) to be used for the processing, storage, disposal, recycling for energy recovery, or recycling of the aggregated household hazardous waste. If materials received in usable condition will be offered to persons for reuse, the operational plan must describe in detail the manner in which this will be done. The operator, in developing the plan for the disposition of waste to be received, shall determine the feasibility of managing collected household hazardous waste in the following order of preference:(A) reuse for the product's intended purpose;(B) recycling;(C) recycling for energy recovery;(D) treatment to destroy hazardous characteristics;(E) treatment to reduce hazardous characteristics;(F) underground injection; and(G) land disposal;(5) must include a detailed description of procedures to ensure that hazardous waste or Class 1 wastes, as defined in this chapter, are not accepted as household hazardous waste, including but not limited to screening procedures for persons bringing wastes to collections or participating in point of generation pick-up services, survey questions that will be asked of participants, and the amounts or types of wastes that will require further explanation from generators prior to acceptance;(6) must include methods used to classify and control wastes received, including but not limited to the following:(A) the waste streams that will be accepted and the types that will be rejected;(B) the types of shipping containers and the storage areas to be used for each waste stream that will be accepted;(C) the methods used to categorize wastes prior to packaging for shipment and processing or disposal;(D) the methods used to handle and identify unknown wastes;(E) bulking procedures if used;(F) procedures for handling containers that are unsealed, leaking, or contaminated on their external surface when received; and(G) procedures for any other wastes with special handling and processing or disposal needs, if any would be accepted, including but not limited to the following:(i) radioactive materials;(ii) medical wastes (such as used syringes);(iii) asbestos;(iv) polychlorinated biphenyls (PCBs);(v) explosives;(vi) compressed gas cylinders; and(vii) tanks for compressed fuels;(7) must include a detailed discussion of provisions for inclement weather, including severe weather, rain, wind, and extreme temperatures;(8) must include a detailed discussion of recordkeeping for the wastes received and shipped for processing or disposal; and(9) must include the following attachments:(A) Attachment 1 is a site map constructed to show the features of the collection event site, the permanent collection center, or the site used with a mobile collection unit. The map need not be drawn to scale but must fairly represent the improvements and boundaries of the collection area. The map must be annotated to show flow of traffic, unloading points, location of emergency equipment and vehicles, and waste handling and storage areas.(B) Attachment 2 is evidence of competency to operate, including experience and qualifications of key personnel and copies of records for all required training in this subchapter for all operator, contractor, or other staff or individuals who will work at any collection event, at any permanent collection center, on any mobile collection unit, in the point of generation pick-up service, or any combination of these covered by the plan.(C) Attachment 3 is a Health and Safety Plan, including but not limited to the following information:(i) the location and contents of the first aid kits available on site, in each mobile collection unit, and on each point of generation pick-up service vehicle;(ii) the location and type of telephones or radios available at the site, on each mobile collection unit, and on each point of generation pick-up service vehicle for summoning emergency assistance and any specific instructions related to usage of this equipment;(iii) detailed procedures for avoiding and responding to spills of liquid materials and solid materials, including at least the following:(I) identifying who will respond to different sizes and types of spills (including on-site staff, emergency responders, contractors, etc.);(II) detailed methods to be used for spill avoidance, control, and cleanup;(III) decontamination procedures for people and equipment;(IV) processing or disposal of contaminated materials and other wastes;(V) types of engineering controls and personal protective equipment available on site and procedures for proper selection and use during spill responses;(VI) the types and locations of equipment and materials available on site;(VII) the duties of specific personnel or job functions;(VIII) evacuation procedures (including at least the collection site and if appropriate the surrounding area); and(IX) procedures for reporting of spills to local, state, and federal authorities;(iv) preparation and response procedures for fires, including at least the following:(I) the location and types of fire extinguishers and other types of fire suppression and prevention equipment available at the site, on each mobile collection unit, and on each point of generation pick-up collection vehicle;(II) when on-site fire extinguishers and equipment would be used and when the fire department would be summoned;(III) evacuation procedures (including the site at least and the surrounding areas if appropriate);(IV) the identity and storage location of any materials to be collected that may require special methods for fire fighting (such as flammable liquids, flammable metals, explosives, compressed gases, aerosol cans, water reactive materials, etc.); and(V) the availability of a local fire department and whether they can handle the largest fire possible from the planned collection either with available resources or through mutual aid arrangements;(v) the timing and content of training or briefings on safety to be provided to staff and volunteers prior to their involvement in the waste collection.(b) The operational plan must be available at a collection event or permanent collection center and at the offices of the entity operating the collection program. The operator shall use the operational plan as a reference in training staff, planning, and conducting collections of household hazardous waste and other materials. The operator shall maintain the operational plan for as long as collection operations are planned and for at least one year after: a collection event occurs, a permanent collection center has closed, or other types activities conducted under this subchapter cease.(c) The operator shall provide the operational plan to the executive director upon request.</content><note type="source"><p>Source Note: The provisions of this §335.405 adopted to be effective July 31, 2008, 33 TexReg 5947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scN/s335.407"><num value="335.407">§335.407</num><heading>Training Requirements</heading><content>(a) The operator shall ensure that all individuals conducting activities under this subchapter have been trained in a manner that is appropriate to their duties, using any appropriate combination of training courses as well as the operational plan as a reference for program-specific training. The training must be specific to the operation of the collection event, permanent collection center, mobile collection unit, point of generation pick-up service, or any combination of these for which the individual will have duties. The operator shall ensure that appropriate training is provided to all staff, contractors, and volunteers who participate in the collection, aggregation, storage, or transportation of household hazardous waste and in running operations to make useable materials available for reuse.(b) The operator shall ensure that training is provided before individuals collect, aggregate, store, or transport household hazardous waste for reuse, recycling, processing, or disposal. The operator shall ensure that all training requirements under this subchapter are met for the individuals performing or responsible for specific duties. The operator shall ensure that volunteers are appropriately trained on the site rules and safety issues related to the operation prior to assisting with any collection.(c) The training must cover any applicable training requirements in federal and state laws and regulations including:(1) requirements of the federal Occupational Safety and Health Administration that are pertinent to duties in handling hazardous materials, responding to spills, and other activities;(2) requirements of the Texas Hazard Communication Act, Texas Health and Safety Code, Chapter 502;(3) requirements of the United States Department of Transportation for preparing and packaging wastes for transportation that are applicable to the specific work and operation, as specified in this subchapter; and(4) requirements of EPA regulations at 40 Code of Federal Regulations §265.16.(d) The operator shall ensure that individuals who handle household hazardous waste after it is unloaded from vehicles delivering it from households and before it is segregated for transport or storage are trained under the requirements of this chapter as if the waste were hazardous wastes.</content><note type="source"><p>Source Note: The provisions of this §335.407 adopted to be effective July 31, 2008, 33 TexReg 5947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scN/s335.409"><num value="335.409">§335.409</num><heading>Operation of Collection Events and Permanent Collection Centers</heading><content>(a) Location and site setup. The operator shall locate, organize, and operate a collection event or permanent collection center in a manner that safeguards the public health and welfare, physical property, and the environment. At a minimum, for any collection event, permanent collection center, or site where mobile collections units are used, the operator shall:(1) locate the collection based on the types and quantities of waste to be collected and suitability of the site for collecting the waste;(2) organize the activities on site in a way that allows incoming wastes to be sorted upon arrival and placed in a controlled area for packaging;(3) provide an area, not generally accessible to the public, for sorting, packaging, and handling waste that is accepted;(4) provide parking for the public and for essential project vehicles and queuing for vehicles waiting to offload wastes so as not to interfere with the safe entry and exit of traffic or cause traffic congestion on roads near the site;(5) prepare for inclement weather, including provisions for sheltering personnel at or near the site during storms;(6) designate eating, drinking, and smoking areas for personnel working at the event, area, site, or center (the operator shall prohibit such activities in the collection work area); and(7) keep incompatible wastes separated, including unidentified wastes, prior to and after packaging for further storage or transport;(b) Personnel and training. The operator shall ensure that personnel who work at a collection event or the permanent collection center are trained to use and follow the operational plan in conducting collection, storage, processing and disposal, and reuse activities. In addition, the operator shall ensure that the following provisions are met:(1) Personnel who sort and package waste for transport to a hazardous waste facility and who directly oversee and supervise these activities on site must be trained and knowledgeable concerning the incompatibility of various classes of waste and qualified to package waste for transport;(2) At every collection event and permanent collection center, at least one person trained to classify hazardous waste and competent to perform tests to identify characteristics of hazardous waste (e.g., pH, flammability, etc.) must be utilized to accept or supervise the acceptance of waste;(3) Personnel handling waste must be instructed in accident prevention; emergency response to fires, explosions, and spills; the proper use of fire extinguishers appropriate to the materials that will be accepted; and the use of protective devices (such as respiratory gear and gloves) to minimize exposure to the household hazardous waste and other materials that would be accepted in the collection;(4) Packaging and labeling of waste must be supervised by an individual familiar with the United States Department of Transportation (DOT) hazardous materials packaging, placarding, labeling, shipping, and hazardous waste manifest requirements;(5) At least one person must be on site at times when wastes are handled who is trained to perform general first aid and who is knowledgeable concerning safety measures to be taken in the event of accidental contact with household hazardous waste or other hazardous materials presented for collection; the first aid training must be consistent with courses provided under the auspices of a recognized national safety organization (such as American Red Cross, National Safety Council, etc.) and must be documented with a current certificate;(6) An on-site supervisor must be available and responsible for initiating an emergency response plan that includes site evacuation procedures. The on-site supervisor also assumes responsibility for accepting any unidentified wastes and insuring proper handling and proper processing or disposal;(7) The on-site supervisor must have the authority to remove from the site and prohibit re-entry of any person that the supervisor determines may threaten site security or personnel safety;(8) A collection event or permanent collection center must be manned by an adequate number of individuals who possess the necessary skills and expertise needed to accept, sort, label, and store the waste and to provide on-site supervision and public relations;(9) When household hazardous waste or other hazardous materials are prepared for transportation, an adequate number of operator or contractor staff must be present and involved who possess the necessary skills and expertise needed to package, store, and manifest the waste; and(10) At a minimum, all personnel who handle household hazardous waste after it is unloaded from vehicles delivering it from households and before it is segregated for transport or storage will have chemical identification, segregation, and consolidation training and Hazardous Waste Operations and Emergency Response (HAZWOPER) training; all other personnel will have appropriate training pursuant to their duties.(c) Equipment and materials. The operator shall provide equipment and materials at a collection event or permanent collection center to provide protection, safety and first aid for persons operating the collection, to contain and clean up spills, and to properly handle, classify, store, and label the waste. The operator shall ensure that disposable equipment and materials contaminated during a spill cleanup are handled appropriately for the type of material that was spilled. The operator shall ensure that any contaminated non-disposable equipment and materials are properly decontaminated before removal from the site. At a minimum, the operator shall provide the following equipment and material at every site and vehicle used to collect wastes:(1) a first aid kit;(2) a telephone or radio for contacting first responders in the event of a spill, personal injury, etc.;(3) an eyewash and shower station, or a hosing device;(4) at least two fire extinguishers appropriate to the wastes accepted; and(5) sufficient spill containment and absorbent materials to contain a spill of 10% of the anticipated volume of collected liquid waste.(d) Waste accepted and excluded. The collection program should accept only household wastes. The operator shall take necessary precautions to prohibit the receipt of waste that is defined as a hazardous waste or Class 1 wastes under this chapter. Other requirements related to acceptance or exclusion of wastes are as follows:(1) The operator shall ensure that a chemist or trained individual knowledgeable in chemical characteristics and incompatibilities identifies any unidentified waste accepted before packaging the waste for transport. Wastes that cannot be identified by the generator or his representative when delivered or through physical assessment by qualified staff may not be packaged until the waste has been analyzed and the appropriate chemical class has been identified.(2) Announcements and promotional material must state which types of wastes will be accepted and which types of waste will not be accepted at the collection event or permanent collection center. The operator shall provide information to potential participants prior to a collection event or the opening of a permanent collection center and at least annually during the period that a permanent collection center operates. The information provided must include all relevant instructions on the following issues, as well as any other appropriate information that may be useful to the public:(A) the types and quantities of wastes that will be accepted and that will not be accepted;(B) instructions for safely packaging and transporting wastes to the collection;(C) the days and hours of operation and location of the collection site; and(D) eligibility criteria for who can bring wastes.(3) The operator shall ensure that waste acceptance decisions are based on the capabilities of the personnel collecting, sorting, and packaging the waste. A generic list of proposed wastes to be accepted and those that will be prohibited must be included in the operational plan. The list must be developed with the intent of minimizing the need for chemical analysis of unidentified wastes.(4) Empty hazardous material and pesticide containers from households may be disposed of as nonhazardous waste if they are rendered unusable before leaving the collection event or permanent collection center.(e) Temporary storage. The operator shall ensure that storage areas at a collection event or permanent collection center are operated and maintained so as to provide safe handling and storage of waste awaiting final disposition. The operator shall secure a collection event or permanent collection center to control access by the public. When storing aggregated household hazardous waste:(1) An operator may not store aggregated household hazardous waste longer than 10 days except under one of the conditions described in subparagraphs (A) - (C) of this paragraph.(A) The storage facility is an authorized hazardous waste processing, storage, or disposal facility;(B) The operator requests in writing and obtains a storage time extension from the executive director. The request for an extension must state the reason that waste needs to be stored longer than ten days, the earliest date that the hazardous household waste currently on site was received, and the expected date that the waste will be shipped to a recycling facility or a hazardous waste processing, storage, or disposal facility; or(C) The operator is operating a permanent collection center, does not accumulate more than 3,000 kilograms of household hazardous waste, and does not store the waste longer than 180 days.(2) If wastes are stored in original individual containers as received from the public rather than in a proper and correctly labeled shipping container that meets the DOT regulations for hazardous materials in transportation, the operator shall ensure:(A) that all complete, legible, and correct labels are maintained on individual containers received from the public;(B) that, if the label on any container of waste received from the public is missing, defaced, or incorrect, information needed for safe storage, transportation, and processing or disposal is marked on that container; at a minimum, this required information must cover all information required by the DOT regulations for hazardous materials in transportation; and(C) that the date of acceptance of each individual container from the generator is placed on that container.(3) If wastes are properly prepared for transportation and stored in proper shipping containers that are labeled consistent with the DOT regulations for hazardous materials in transportation, the individual containers received from the public do not need to be marked.(4) The operator shall maintain records of all stored, processed, or disposed household hazardous wastes for at least one year after shipment of the waste including all the information necessary to complete manifests for the wastes. (Copies of manifests may be used in lieu of a separate record.)</content><note type="source"><p>Source Note: The provisions of this §335.409 adopted to be effective July 31, 2008, 33 TexReg 5947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scN/s335.411"><num value="335.411">§335.411</num><heading>Operation of Point of Generation Pick-up Service and Mobile Collection Units</heading><content>(a) Point of generation pick-up service. An operator offering point of generation pick-up service for household hazardous waste that has been segregated from other household waste shall:(1) develop and implement a collection program that minimizes the potential for human and animal exposure to such waste (unless the pick-up procedures involve personal contact with the generator, the operator shall provide instructions to households on details of packaging, labeling, securing, and any other procedures to safeguard humans and animals and to protect the environment from the wastes left out for pick-up);(2) provide information to potential participants prior to collections. The information provided must include all relevant issues on the following topics, as well as any other appropriate information that may be useful to the public:(A) the information required in paragraph (1) of this subsection;(B) eligibility criteria for who can participate in the program;(C) the types and quantities of wastes that will be and will not be accepted; and(D) the method households are to use for arranging pickup of their wastes;(3) organize and operate the collections so as to safeguard the public health and welfare, physical property, and the environment;(4) have available in each vehicle used for the point of generation pick-up service the following equipment:(A) a first aid kit;(B) a fire extinguisher appropriate to the wastes accepted;(C) a means of communication to summon emergency assistance and the information needed for its use; and(D) sufficient absorbent to contain a spill of ten percent of the maximum quantity of liquid wastes that the vehicle is designed to hold;(5) have a person in each collection vehicle who has experience and training in handling hazardous waste, the proper use of fire extinguishers, first aid, waste classification, waste incompatibility, spill prevention, and clean-up safety;(6) if unknown wastes will be accepted, ensure that the wastes are properly identified and meet one of the following requirements:(A) have available on the collection vehicle all necessary testing equipment and a person qualified to identify the wastes prior to placing the wastes on the collection vehicle; or(B) have a method in place on the collection vehicle of isolating separately in a secure manner each container of unknown waste until delivery to a collection event or permanent collection center where the waste(s) will be characterized prior to aggregating with other wastes, if this method is consistent with the United States Department of Transportation (DOT) requirements for hazardous material in transportation.(b) Mobile collection unit. In addition to the requirements of §335.409 of this title (relating to Operation of Collection Events and Permanent Collection Centers), an operator using one or more mobile collection units to collect household hazardous waste shall:(1) develop and implement a collection program that minimizes the potential for human exposure to or environmental harm from such waste during collection, storage, and transport;(2) have at least one person at each collection who has experience and training in handling hazardous waste, the proper use of fire extinguishers, first aid, waste classification, waste incompatibility, spill prevention, and clean-up safety;(3) maintain on a mobile collection unit involved with a collection the following equipment:(A) a first aid kit;(B) a fire extinguisher appropriate to the wastes accepted;(C) a eye wash and emergency shower or a hosing device;(D) a means of communication to summon emergency assistance; and(E) sufficient absorbent and containment to contain a spill of ten percent of all liquid wastes on the largest mobile collection unit at the collection;(4) if unknown wastes will be accepted, ensure that the wastes are properly identified and meet one of the following requirements:(A) have available on the mobile collection unit all necessary testing equipment and a person qualified to identify the wastes prior to placing the wastes on the unit; or(B) have a method in place on the mobile collection unit of isolating separately in a secure manner each container of unknown waste until delivery to a collection event or permanent collection center where the waste(s) will be characterized prior to aggregating with other wastes, if this method is consistent with the DOT requirements for hazardous material in transportation; and(5) if the mobile collection unit is used to transport household hazardous waste to a hazardous waste processing, storage, or disposal facility, register the mobile collection unit as a transporter and manifest the aggregated household hazardous waste, or ship the household hazardous waste as universal waste if allowed under Subchapter H, Division 5 of this chapter (relating to Universal Waste Rule);(c) Point of generation pick-up service or mobile collection unit. The operator of a point of generation pick-up service or mobile collection unit shall also:(1) comply with the personnel requirements in §335.409(b) of this title;(2) comply with the waste acceptance and exclusion requirements in §335.409(d) of this title;(3) comply with the temporary storage requirements in §335.409(e) of this title; and(4) within 72 hours of receipt from the public, deliver collected household hazardous waste to a permanent collection center, collection event, or registered hazardous waste transporter facility to be aggregated with other household hazardous waste, or have the household hazardous waste transported by a transporter that meets the requirements in §335.415 of this title (relating to General Requirements for Transporters) to a hazardous waste processing, storage, or disposal facility that is authorized to accept household hazardous waste that has agreed to accept the wastes or as universal waste if allowed under Subchapter H, Division 5 of this chapter.</content><note type="source"><p>Source Note: The provisions of this §335.411 adopted to be effective July 31, 2008, 33 TexReg 5947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scN/s335.413"><num value="335.413">§335.413</num><heading>General Shipping, Manifesting, Recordkeeping, and Reporting Requirements</heading><content>(a) Except for those collected reusable materials handled in accordance with the requirements of §335.419 of this title (relating to Reuse of Collected Material) and wastes received at the center which are not household hazardous waste, persons who collect, receive, or aggregate household hazardous waste shall:(1) utilize only hazardous waste transporters who have notified the executive director with respect to transportation of hazardous waste, who have notified the United States Environmental Protection Agency (EPA) of their involvement in transporting hazardous waste, and who have been issued an EPA identification number, for transporting or shipping household hazardous waste from a collection event or permanent collection center, except for household hazardous waste that is shipped as universal waste under the provisions of Subchapter H, Division 5 of this chapter (relating to Universal Waste Rule), and except in cases where aggregated household hazardous waste is shipped to another permanent collection center for the purpose of consolidating aggregated household hazardous waste;(2) ship, using a uniform hazardous waste manifest or following the universal waste rules if appropriate to the type(s) of waste(s) being shipped, household hazardous waste from a collection event or permanent collection center only to receivers that are permitted as hazardous waste processing, storage, or disposal facilities with authorization to receive household hazardous waste and that have agreed to accept the waste, except in cases where aggregated household hazardous waste is shipped to another permanent collection center for the purpose of consolidating aggregated household hazardous waste;(3) package and label household hazardous waste so as to apply the applicable United States Department of Transportation requirements and the requirements contained in §335.10 of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste and Primary Exporters of Hazardous Waste) to the household hazardous waste as if it was hazardous waste; and(4) retain for at least one year from the date of shipment copies of all manifests and bills of lading utilized for the shipment of household hazardous waste, and make the records available to the executive director upon request;(b) For all wastes received and materials offered for reuse, an operator shall:(1) report annually to the executive director by April 1st for the previous calendar year the amount of household hazardous waste and other wastes received, including materials offered for reuse and those transferred to another operator, using a form provided by the agency; and(2) ensure that all wastes received are properly processed or disposed under all federal, state, and local requirements that are applicable to the specific waste; if materials offered for reuse are later shipped for processing or disposal without having been transferred to another person, the materials must be processed or disposed as required for household hazardous waste if they have any characteristic of hazardous waste.</content><note type="source"><p>Source Note: The provisions of this §335.413 adopted to be effective July 31, 2008, 33 TexReg 5947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scN/s335.415"><num value="335.415">§335.415</num><heading>General Requirements for Transporters</heading><content>(a) A person may not transport household hazardous waste required by this subchapter to be accompanied by a uniform hazardous waste manifest, unless such person:(1) has notified the executive director with respect to hazardous waste transportation activities in accordance with the requirements contained in §335.6(d) of this title (relating to Notification Requirements);(2) has notified the EPA as to his or her transporter status, and has been issued an United States Environmental Protection Agency (EPA) identification number;(3) applies the requirements outlined in §335.11 of this title (relating to Shipping Requirements for Transporters of Municipal Hazardous Waste or Class 1 Industrial Solid Waste) to all manifested household waste as if it was hazardous waste;(4) applies the requirements outlined in §335.14 of this title (relating to Recordkeeping Requirements Applicable to Transporters of Municipal Hazardous Waste or Class 1 Industrial Solid Waste) to all manifested household waste as if it was hazardous waste; and(5) applies the requirements of §335.4(1) - (3) of this title (relating to General Prohibitions) to all household hazardous waste accepted or handled as if it was hazardous waste.(b) A transporter who is engaged in a point of generation pick-up service of household hazardous waste, who operates or intends to operate any household hazardous waste collection event, mobile collection unit, or a permanent collection center, or who otherwise handles or accepts household hazardous waste from households or the public, shall comply with all the applicable requirements of this subchapter set forth for operators and shall keep all household hazardous waste accumulated separate and apart from hazardous waste or Class 1 waste, as defined in this chapter, which is accumulated at a transporter's facilities.</content><note type="source"><p>Source Note: The provisions of this §335.415 adopted to be effective July 31, 2008, 33 TexReg 5947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scN/s335.417"><num value="335.417">§335.417</num><heading>General Requirements for Processing, Storage, or Disposal Facilities</heading><content>(a) An owner or operator of a hazardous waste processing, storage, or disposal facility may receive in compliance with the permit household hazardous waste shipped under a uniform hazardous waste manifest or as universal waste.(b) Owners or operators of hazardous waste processing, storage, or disposal facilities may receive household hazardous waste directly from households without meeting any of the other provisions of this subchapter provided that the quantities received are reported to the executive director as described in §335.403(d)(6) of this title (relating to General Requirements for Household Hazardous Waste Collections).</content><note type="source"><p>Source Note: The provisions of this §335.417 adopted to be effective July 31, 2008, 33 TexReg 5947.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scN/s335.419"><num value="335.419">§335.419</num><heading>Reuse of Collected Material</heading><content>Any material collected or accepted by a collector or operation in its original container with a legible label or that is otherwise readily identifiable and which has been determined by the collector or operator to be in a usable condition may be removed from the aggregated household hazardous waste and provided to a person for use. Storage of materials offered for reuse is not subject to the requirements of this subchapter. If any reusable material is shipped for processing or disposal without having been transferred to another person, the operator shall ensure that the material is processed or disposed as household hazardous waste under the requirements of this subchapter if it meets the definition of household hazardous waste in §335.402(6) of this title (relating to Definitions).</content><note type="source"><p>Source Note: The provisions of this §335.419 adopted to be effective July 31, 2008, 33 TexReg 5947.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scO"><num value="O">SUBCHAPTER O</num><heading>LAND DISPOSAL RESTRICTIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scO/s335.431"><num value="335.431">§335.431</num><heading>Purpose, Scope, and Applicability</heading><content>(a) Purpose. The purpose of this subchapter is to identify hazardous wastes that are restricted from land disposal and define those limited circumstances under which an otherwise prohibited waste may continue to be land disposed.(b) Scope and Applicability. (1) Except as provided in paragraph (2) of this subsection, the requirements of this subchapter apply to persons who generate or transport hazardous waste and owners and operators of hazardous waste treatment, storage, and disposal facilities.(2) The requirements of this subchapter do not apply to any entity that is either specifically excluded from coverage by this subchapter or would be excluded from the coverage of 40 Code of Federal Regulations (CFR) Part 268 by 40 CFR Part 261, if those parts applied.(3) Universal waste handlers and universal waste transporters, as defined in and subject to regulation under Subchapter H, Division 5 of this chapter (relating to Universal Waste Rule) are exempt from 40 CFR §268.7 and §268.50.(c) Adoption by Reference.(1) Except as provided in paragraph (2) of this subsection, and subject to the changes indicated in subsection (d) of this section, the regulations contained in 40 CFR Part 268, as amended in the Federal Register through February 22, 2019 (84 FR 5816) are adopted by reference.(2) The following sections of 40 CFR Part 268 are excluded from the sections adopted in paragraph (1) of this subsection: 40 CFR §§268.1(f), 268.5, 268.6, 268.7(a)(10), 268.13, 268.42(b), and 268.44.(3) Appendices IV, VI - IX, and XI of 40 CFR Part 268 are adopted by reference as amended through July 14, 2006 (71 FR 40254).(d) Changes to Adopted Parts. The parts of the CFR that are adopted by reference in subsection (c) of this section are changed as follows:(1) The words "Administrator" or "Regional Administrator" are changed to "Executive Director;"(2) The word "treatment" is changed to "processing;"(3) The words "Federal Register," when they appear in the text of the regulation, are changed to "Texas Register;" (4) In 40 CFR §268.7(a)(6) and (7), the applicable definition of hazardous waste and solid waste is the one that is set out in this chapter rather than the definition of hazardous waste and solid waste that is set out in 40 CFR Part 261.(5) In 40 CFR §268.50(a)(1), the reference to "§§262.16 and 262.17 " is changed to "40 CFR §262.16 and §262.17 as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste)." (6) In 40 CFR §268.50(a)(4), the reference to "§§266.502 and 266.503 of this chapter" is changed to "§335.755 of this title (relating to Standards for Healthcare Facilities Managing Non-Creditable Hazardous Waste Pharmaceuticals) and §335.757 of this title (relating to Standards for Healthcare Facilities Managing Potentially Creditable Hazardous Waste Pharmaceuticals)."(7) In 40 CFR §268.50(a)(5), the reference to "§266.510 of this chapter" is changed to "§335.771 of this title (relating to Standards for the Management of Potentially Creditable Hazardous Waste Pharmaceuticals and Evaluated Hazardous Waste Pharmaceuticals by Reverse Distributors)."</content><note type="source"><p>Source Note: The provisions of this §335.431 adopted to be effective November 23, 1993, 18 TexReg 8218; amended to be effective February 22, 1994, 19 TexReg 969; amended to be effective March 22, 1995, 20 TexReg 1657; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective April 4, 1999, 24 TexReg 2352; amended to be effective April 30, 2000, 25 TexReg 3547; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective August 16, 2007, 32 TexReg 5010; amended to be effective October 29, 2009, 34 TexReg 7321; amended to be effective February 21, 2013, 38 TexReg978; amended to be effective January 8, 2015, 40 TexReg 77; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scP"><num value="P">SUBCHAPTER P</num><heading>WARNING SIGNS AND CONTAMINATED AREAS</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scP/s335.441"><num value="335.441">§335.441</num><heading>Purpose, Scope, and Applicability</heading><content>The purpose of this subchapter is to provide standards and procedures for the placement of warning signs on property contaminated with hazardous substances when such contamination presents a danger to public health and safety.</content><note type="source"><p>Source Note: The provisions of this §335.441 adopted to be effective October 31, 1990, 15 TexReg 6068.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scP/s335.442"><num value="335.442">§335.442</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Contaminated property--Property on which hazardous substances in known or potentially harmful quantities have been released, spilled, leaked, pumped, poured, emitted, entered, or dumped.(2) Emergency--Any situation in which an immediate threat to public health and safety exists from releases or threatened releases of hazardous substances on contaminated property.(3) Hazardous substances--(A) A substance designated pursuant to the Federal Water Pollution Control Act, §311(b)(2)(A), as amended (33 United States Code 1321).(B) An element, compound, mixture, solution, or substance designated pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, §102, as amended (42 United States Code 9602).(C) A hazardous waste having the characteristics identified under or listed pursuant to the federal Solid Waste Disposal Act, §3001, as amended (42 United States Code 6921), excluding waste, the regulation of which under the federal Solid Waste Disposal Act (42 United States Code 6901 et seq.) has been suspended by Act of Congress.(D) A toxic pollutant listed under the Federal Water Pollution Control Act, §307(a), as amended (33 United States Code 1317).(E) A hazardous air pollutant listed under the federal Clean Air Act, §112, as amended (42 United States Code 7412).(F) Any imminently hazardous chemical substance or mixture with respect to which the administrator of the Environmental Protection Agency has taken action pursuant to the Toxic Substances Control Act, §7 (15 United States Code 2606).(G) Does not include petroleum, which means crude oil or any fraction thereof that is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A)-(F) of this definition; nor does it include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel mixtures of natural gas and synthetic gas; nor does it include waste materials which result from activities associated with the exploration, development, or production of oil or gas or geothermal resources or any other substance or material regulated by the Railroad Commission of Texas pursuant to the Natural Resources Code, §91.101.(4) Property owner--The person or persons who own contaminated property.(5) Remedial action--This term shall have the same meaning as in Subchapter K of this chapter (relating to Hazardous Waste Facilities Assessment and Remediation).(6) Warning sign--A sign which provides public notice that a particular property is contaminated with hazardous substances and that entry on the property presents a potential hazard to public health and safety. The sign may either be placed by the commission or made and placed in accordance with commission specifications.(7) Written consent form--A document signed by the property owner which states that the property owner agrees to the placement of warning signs on his property. The document shall be signed as follows.(A) If the property owner is an individual, the written consent form shall be signed by the property owner or the property owner's approved agent. An agent shall provide written evidence of his or her authority to represent the property owner. If the property owner is an individual doing business under an assumed name, an assumed name certificate must be obtained from the county clerk of the county in which the principal place of business or the contaminated property is located.(B) If the property is jointly owned, the written consent form shall be signed by each property owner or each property owner's duly authorized agent, with written evidence of such agency relationship to be submitted with the written consent form. If land is owned by both husband and wife, each shall sign the written consent form. If the joint owners are doing business under an assumed name, an assumed name certificate must be obtained from the county clerk of the county in which the principal place of business or the contaminated property is located.(C) If the property is owned by a partnership, the written consent form shall be signed by one of the general partners. If the partnership is doing business under an assumed name, an assumed name certificate must be obtained from the county clerk of the county in which the principal place of business or the contaminated property is located.(D) If the property is part of an estate or guardianship, the written consent form shall be signed by the duly appointed guardian or representative of the estate and a current copy of any and all document(s) issued by the court appointing the guardian or the representative of the estate shall be attached to the written consent form.(E) If the property owner is a corporation, public district, county, municipality, or other corporate entity or political subdivision, the written consent form shall be signed by a duly authorized official. Written evidence in the form of bylaws, charters, or resolutions which specify the authority of the official to take such action shall be submitted. A corporation may file a corporate affidavit as evidence of the official's authority to sign.(F) If the signatory is acting as trustee for another person, the signatory shall sign as trustee, and in the written consent form shall disclose the nature of the trust agreement and give the name and current address of each trust beneficiary. Each signatory shall subscribe to and swear to the written consent form before a person entitled to administer oaths, who shall also sign his or her name and affix his or her seal of office to the written consent form.</content><note type="source"><p>Source Note: The provisions of this §335.442 adopted to be effective October 31, 1990, 15 TexReg 6068.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scP/s335.443"><num value="335.443">§335.443</num><heading>Determination of Potential Hazard to Public Health</heading><content>(a) Prior to placing warning signs on contaminated property, a determination must be made by the executive director of the Texas Water Commission that there exists a potential hazard to public health and safety which will be eliminated or reduced by placing a warning sign on the contaminated property. The executive director of the Texas Water Commission may consult with the Texas Department of Health in making this determination where appropriate. During the initial site investigation, if there is sufficient information, the following factors should be considered in determining whether a potential hazard to public health and safety exists:(1) character of the contaminant(s), based on labeling, type of container, if any, the presence of any marking or labeling indicating the contents of any container present, laboratory analyses of the contaminant(s), or media containing the contaminant(s), or other relevant factors;(2) amount and/or suspected concentration of the contaminant(s);(3) the known or suspected health effects of the contaminant(s);(4) accessibility of the contaminated area to the public;(5) route(s) of exposure;(6) proximity of schools, hospitals, and residential areas; and(7) potential for wind dispersal or other potential pathway(s) for migration of the contaminant(s).(b) It is presumed by the Texas Water Commission that a hazard to the public health and safety exists if, at any point during the site investigation, the following conditions are found:(1) illnesses are observed or alleged to be related to the contaminants present at the site;(2) known or suspected toxic or carcinogenic materials are detected at concentrations which could potentially affect public health and safety;(3) mutagenic, teratogenic, or other materials which may be detrimental to reproduction are discovered; or(4) hazardous substances are found in an area accessible to the public.</content><note type="source"><p>Source Note: The provisions of this §335.443 adopted to be effective October 31, 1990, 15 TexReg 6068.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scP/s335.444"><num value="335.444">§335.444</num><heading>Property Owner Consents to the Placement of Warning Signs</heading><content>Whenever possible, written consent should be obtained from the property owner of the contaminated property on which the warning signs are to be placed. The commission may place warning signs on contaminated property if prior written consent is obtained from the property owner for such placement.</content><note type="source"><p>Source Note: The provisions of this §335.444 adopted to be effective October 31, 1990, 15 TexReg 6068.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scP/s335.445"><num value="335.445">§335.445</num><heading>Placement of Warning Signs without the Property Owner's Consent</heading><content>The commission shall issue an order to authorize the placement of warning signs on contaminated property if no written consent has been obtained for such placement from the property owner. In nonemergency situations, an opportunity for a hearing on the placement of warning signs shall be afforded to the property owner in accordance with the contested case provisions of the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13A, §13.</content><note type="source"><p>Source Note: The provisions of this §335.445 adopted to be effective October 31, 1990, 15 TexReg 6068.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scP/s335.446"><num value="335.446">§335.446</num><heading>Emergency Placement of Warning Signs</heading><content>If an emergency exists which requires the immediate placement of warning signs on contaminated property to protect the public health and safety and the property owner has not provided written consent to the placement of warning signs, an emergency order authorizing the placement of warning signs on the contaminated property may be issued without notice and a hearing by the commission or with such notice and hearing as are practicable. If an emergency order is issued by the commission pursuant to this section, the commission shall fix a time and place for a hearing to affirm, modify, or set aside the emergency order. Notice of the hearing to affirm, modify, or set aside the emergency order shall be provided in accordance with the provisions set forth in Chapter 305, Subchapter B of this title (relating to Emergency Orders, Temporary Orders, and Executive Director Authorizations).</content><note type="source"><p>Source Note: The provisions of this §335.446 adopted to be effective October 31, 1990, 15 TexReg 6068.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scP/s335.447"><num value="335.447">§335.447</num><heading>Reporting of Placement of Warning Signs</heading><content>Any commission employee who places or requests the placement of a warning sign on contaminated property must file a report with the commission's central office in Austin within 10 days of such a request or placement. The report must include the following information, if known:(1) the name and office telephone number of the reporting individual;(2) the name and telephone number of the commission personnel investigating the site;(3) the location of the contaminated property;(4) the identity of the contaminant(s);(5) the physical and chemical properties of the contaminant(s);(6) the source of the contamination;(7) the extent of the area impacted by the contamination;(8) condition(s) affecting the migration of the contamination including surface water runoff, release(s) to the air, releases to the groundwater, prevailing weather, and/or any fire(s);(9) the extent of the actual and potential exposure to the contaminant(s) including exposure by emergency personnel, occupational exposure, and real or potential exposure to the public;(10) a description of the procedures used or proposed to be used to determine whether warning signs are necessary and to determine the appropriate placement of the warning signs;(11) when and where warning signs were placed or are proposed to be placed;(12) whether written consent was obtained from the property owner; and(13) a copy of any written consent obtained from the property owner.</content><note type="source"><p>Source Note: The provisions of this §335.447 adopted to be effective October 31, 1990, 15 TexReg 6068.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scP/s335.448"><num value="335.448">§335.448</num><heading>Removal of Warning Signs</heading><content>Warning signs shall be removed from the contaminated property upon approval of the executive director or the commission after either:(1) the property owner has provided the commission with documentation that remedial action on the contaminated property is complete and no further hazard to the public health and safety exists and the commission has independently verified the information provided; or(2) the commission has independently determined that remedial action on the contaminated property is complete and no further hazard to the public health and safety exists.</content><note type="source"><p>Source Note: The provisions of this §335.448 adopted to be effective October 31, 1990, 15 TexReg 6068.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scQ"><num value="Q">SUBCHAPTER Q</num><heading>POLLUTION PREVENTION: SOURCE REDUCTION AND WASTE MINIMIZATION</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scQ/s335.471"><num value="335.471">§335.471</num><heading>Definitions</heading><content>The words and terms used in this subchapter have the meanings given in the Waste Reduction Policy Act of 1991, or the regulations promulgated thereunder. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Further, the following words and terms, as defined herein, shall only have application to this subchapter.(1) Base year--The year preceding the first year of the plan.(2) Environment--Water, air, and land and the interrelationship that exists among and between water, air, land, and all living things.(3) Facility--All buildings, equipment, structures, and other stationary items located on a single site or on contiguous or adjacent sites that are owned or operated by a person who is subject to this subchapter or by a person who controls, is controlled by, or is under common control with a person subject to this subchapter.(4) Generator and generator of hazardous waste--Has the meaning assigned by Texas Health and Safety Code, §361.131. A person whose act or process produces industrial solid waste or hazardous waste or whose act first causes an industrial solid waste or a hazardous waste to be regulated by the commission.(5) Media and medium--Air, water, and land into which waste is emitted, released, discharged, or disposed.(6) Pollutant or contaminant--Includes any element, substance, compound, disease-causing agent, or mixture that after release into the environment and on exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions, including malfunctions in reproduction, or physical deformations in the organism or its offspring. The term does not include petroleum, crude oil, or any fraction of crude oil that is not otherwise specifically listed or designated as a hazardous substance under §101(14)(A) - (F) of the environmental response law, nor does it include natural gas, natural gas liquids, liquefied natural gas, synthetic gas of pipeline quality, or mixtures of natural gas and synthetic gas.(7) Release--Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment. The term does not include:(A) a release that results in an exposure to a person solely within a workplace, concerning a claim that the person may assert against the person's employer;(B) an emission from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine;(C) a release of source, by-product, or special nuclear material from a nuclear incident, as those terms are defined by the Atomic Energy Act of 1954, as amended ((42 United States Code, §§2011 et seq. ), if the release is subject to requirements concerning financial protection established by the United States Nuclear Regulatory Commission under that Act, §170;(D) for the purposes of the federal Comprehensive Environmental Responsibility, Compensation and Liability Act (Superfund), §104, or other response action, a release of source, by-product, or special nuclear material from a processing site designated under the Uranium Mill Tailings Radiation Control Act of 1978 (42 United States Code, §7912 and §7942), §102(a)(1), or §302(a)); and(E) the normal application of fertilizer.(8) Source reduction--Has the meaning assigned by the federal Pollution Prevention Act of 1990, Publication Law 101-508, §6603, 104 Stat. 1388. The term ''source reduction'' means any practice which:(A) reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions) prior to recycling, treatment, or disposal; and(B) reduces the hazards to public health and the environment associated with the release of such substances, pollutants, or contaminants. The term includes equipment or technology modifications, process or procedure modifications, reformulation or redesign of products, substitution of raw materials, and improvements in housekeeping, maintenance, training, or inventory control.(9) Tons--2,000 pounds, also referred to as short tons.(10) Toxic release inventory--A program which includes those chemicals on the list in Committee Print Number 99-169 of the United States Senate Committee on Environment and Public Works, titled "Toxic Chemicals Subject to the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA, 42 United States Code, §11023), 313" including any revised version of the list as may be made by the administrator of the EPA.(11) Waste minimization--A practice that reduces the environmental or health hazards associated with hazardous wastes, pollutants, or contaminants. Examples may include reuse, recycling, neutralization, and detoxification.</content><note type="source"><p>Source Note: The provisions of this §335.471 adopted to be effective January 3, 1992, 16 TexReg 7532; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective January 30, 2003, 28 TexReg 735; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scQ/s335.472"><num value="335.472">§335.472</num><heading>Pollutants and Contaminants</heading><content>The following pollutants and contaminants are subject to pollution prevention planning:(1) all hazardous wastes generated that are reportable in accordance with §335.9 of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators); and(2) all chemicals that exceed the Form R threshold reporting requirements in accordance with Emergency Planning and Community Right-To-Know Act of 1986, §313.</content><note type="source"><p>Source Note: The provisions of this §335.472 adopted to be effective January 3, 1992, 16 TexReg 7532; amended to be effective January 30, 2003, 28 TexReg 735.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scQ/s335.473"><num value="335.473">§335.473</num><heading>Applicability</heading><content>This subchapter applies to facilities that are required to develop a pollution prevention plan in accordance with the Waste Reduction Policy Act of 1991, or the regulations promulgated thereunder, including:(1) all large quantity generators of hazardous waste;(2) all small quantity generators of hazardous waste; and(3) all persons subject to §313, Title III, Superfund Amendments and Reauthorization Act of 1986 (Emergency Planning and Community Right-to-Know Act (EPCRA), 42 United States Code, §11023). These toxic release inventory (TRI) covered facilities would be required to develop pollution prevention plans for only the TRI listed chemicals that exceed Form R reportable threshold quantities established under EPCRA.</content><note type="source"><p>Source Note: The provisions of this §335.473 adopted to be effective January 3, 1992, 16 TexReg 7532; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective January 30, 2003, 28 TexReg 735.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scQ/s335.474"><num value="335.474">§335.474</num><heading>Pollution Prevention Plans</heading><content>All persons identified under §335.473 of this title (relating to Applicability) shall prepare a five-year pollution prevention plan that shall be updated as necessary. Plans shall be maintained on-site and available to commission personnel for inspection. Prior to expiration of the initial plan and each succeeding five-year plan, a new five-year plan shall be prepared. Plans prepared under paragraphs (1) - (3) of this section shall contain a separate component addressing source reduction activities and a separate component addressing waste minimization activities.(1) Large quantity generators or toxic release inventory (TRI) Form R reporters. For facilities that are large quantity generators as defined in §335.1 of this title (relating to Definitions) or TRI Form R reporters, the plan shall include, at a minimum:(A) an initial survey that identifies:(i) for facilities described in §335.473(1) of this title, all activities that generate hazardous waste; and(ii) for facilities described in §335.473(3), all activities that result in a release of TRI reportable chemicals;(B) based on the initial survey, a prioritized list of economically and technologically feasible source reduction and waste minimization projects;(C) an explanation of source reduction or waste minimization projects to be undertaken, with a discussion of technical and economic considerations, and environmental and human health risks considered in selecting each project to be undertaken;(D) an estimate of the type and amount of reduction anticipated;(E) a schedule for the implementation of each source reduction and waste minimization project;(F) measurable source reduction and waste minimization goals for the entire facility, including incremental goals to aid in evaluating progress;(G) an explanation of employee awareness and training programs to aid in accomplishing source reduction and waste minimization goals;(H) identification of cases where the implementation of a source reduction or waste minimization activity designed to reduce risk to human health or the environment may result in the release of a different pollutant or contaminant or may shift the release to another medium;(I) certification that the plan is complete and correct by the owner of the facility, or, if the facility is owned by a corporation, by an officer of the corporation that owns the facility who has the authority to commit the corporation's resources to implement the plan. A copy of the certification is to be submitted to the commission; and(J) an executive summary of the plan submitted to the commission that shall include at a minimum:(i) a description of the facility that shall include:(I) name of facility;(II) mailing and physical address;(III) point-of-contact, including phone number and electronic mail (e-mail) address, if available;(IV) a general description of the facility;(V) applicable identification numbers, including: Texas Commission on Environmental Quality (TCEQ) solid waste registration number, EPA identification number, and TRI identification number;(VI) primary standard industrial classification (SIC) code and, if applicable, North American Industry Classification System (NAICS); and(VII) the specific time period the five-year plan is in effect;(ii) a list of all hazardous wastes generated and the volume of each;(iii) a list of all reportable TRI releases and transfers and the volume of each;(iv) a prioritized list of pollutants and contaminants to be reduced;(v) a statement of measurable reduction goals;(vi) an explanation of environmental and human health risks considered in determining reduction goals;(vii) a list of source reduction and waste minimization projects with an associated schedule toward implementation;(viii) an implementation schedule for future reduction goals; and(ix) identification and description of cases where the implementation of source reduction or waste minimization activity designed to reduce risk to human health or the environment may result in the release of a different pollutant or contaminant or may shift the release to another medium. Included in this description shall be a discussion of the change in characteristic of the normal waste stream or release and how it will be managed in the affected medium.(K) The executive summary of the plan may include:(i) a discussion of the person's previous efforts at the facility to reduce risk to human health and the environment or to reduce the generation of hazardous waste or the release of pollutants or contaminants;(ii) a discussion of the effect changes in environmental regulations have had on the achievement of the source reduction and waste minimization goals;(iii) the effect that events the person could not control have had on the achievement of the source reduction and waste minimization goals;(iv) a description of projects that have reduced the generation of hazardous waste or the release of pollutants or contaminants; and(v) a discussion of the operational decisions made at the facility that have affected the achievement of the source reduction or waste minimization goals or other risk reduction efforts.(2) Small quantity generators/non-TRI Form R reporters. For facilities that are small quantity generators as defined in §335.1 of this title and are not TRI Form R reporters, the plan shall include, at a minimum:(A) a description of the facility which shall include:(i) name of the facility;(ii) mailing and physical address;(iii) point-of-contact, including phone numbers and electronic mail (e-mail) address, if available;(iv) general description of the facility; and(v) applicable identification numbers, including: TCEQ solid waste registration number and EPA identification number;(B) a list of all hazardous wastes generated and the volume of each;(C) a prioritized list of pollutants and contaminants to be reduced;(D) a statement of measurable reduction goals;(E) information on environmental and human health risks, such as material safety data sheets or other available documentation, considered in determining reduction goals;(F) A list of source reduction and waste minimization projects with an associated schedule of implementation;(G) an implementation schedule for future reduction goals;(H) certification that the plan is complete and correct by the owner of the facility or if the facility is owned by a corporation, by an officer of the corporation that owns the facility who has the authority to commit the corporation's resources to implement the plan. A copy of the certification must be submitted to the commission; and(I) an executive summary of the plan submitted to the commission that shall include at a minimum:(i) a description of the facility that shall include:(I) name of facility;(II) mailing and physical address;(III) point-of-contact, including a phone number and email, if available;(IV) EPA identification number and TCEQ solid waste registration number;(V) primary SIC code; and if applicable, NAICS;(VI) the specific time period the five-year plan is in effect;(ii) a projection of the amount of hazardous waste that the facility will generate (based on what is reported as hazardous waste under §335.9 of this title (relating to Record Keeping and Annual Reporting Procedures Applicable to Generators)) at the end of the five-year period that the plan is in place;(iii) prioritized list of pollutants and contaminants to be reduced;(iv) a list of source reduction activities associated with reductions of pollutants and contaminants identified under subparagraph (C) of this paragraph.(J) The executive summary of the plan may include:(i) a discussion of the person's previous effort at the facility to reduce hazardous waste or the release of pollutants or contaminants through the pollution prevention plan;(ii) a discussion of the effect that changes in environmental regulations have had on the achievement of the source reduction and waste minimization goals;(iii) the effects that events the person could not control have had on the achievement of the source reduction and waste minimization goals;(iv) a discussion of the operational decisions the person has made that have affected the achievement of the source reduction and waste minimization goals; and(v) identification and description of cases where the implementation of source reduction and waste minimization activities designed to reduce risk to human health or the environment may result in the release of a different pollutant or contaminant or may shift the release to another medium. Included in this description shall be a discussion of the change in characteristic of the normal waste stream or release and how it will be managed in the affected medium.</content><note type="source"><p>Source Note: The provisions of this §335.474 adopted to be effective January 3, 1992, 16 TexReg 7532; amended to be effective December 25, 1995, 20 TexReg 10374; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective January 30, 2003, 28 TexReg 735; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scQ/s335.475"><num value="335.475">§335.475</num><heading>Implementation</heading><content>All facilities subject to this subchapter shall develop a pollution prevention plan. A facility, once subject to this subchapter, shall remain subject until it no longer meets the requirements of §335.473 of this title (relating to Applicability) or is exempted under §335.477 of this title (relating to Exemptions). The executive summary and certificate of completeness shall be submitted to the executive director on the date the plan is required to be in place. Any facility that becomes subject to the requirement to have a pollution prevention plan, shall have 90 days from the date it is required to submit its initial annual waste summary or TRI forms to the commission to have the pollution prevention plan in place and available for review. Facilities subject to this subchapter are required to renew their plan every five years.</content><note type="source"><p>Source Note: The provisions of this §335.475 adopted to be effective January 3, 1992, 16 TexReg 7532; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective January 30, 2003, 28 TexReg 735.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scQ/s335.476"><num value="335.476">§335.476</num><heading>Reports and Recordkeeping</heading><content>All persons required to develop a pollution prevention plan for a facility under this subchapter shall submit to the commission an initial executive summary of the plan following the requirements of §335.474(1)(J) of this title (relating to Pollution Prevention Plans) for large quantity generators/toxic release inventory Form R reporters or §335.474(2)(I) of this title for small quantity generators/non-toxic release inventory Form R and a copy of the certification of completeness and correctness as required by §335.474(1)(I) of this title. Within 30 days of any revision of such plan, a revised executive summary, including a copy of a new certificate of completeness and correctness shall be submitted. All owners and operators required to develop a plan under §335.473(1) or (3) of this title (relating to Applicability) shall also submit an annual progress report as defined in paragraphs (1) - (3) of this section according to the schedule outlined in paragraph (4) of this section. Persons required to develop a pollution prevention plan for a facility under §335.473(2) of this title may meet the annual progress reporting requirements by submitting their annual waste summary required under §335.9 of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators) and by submitting their hazardous waste reduction goals as required under §335.474(2)(I) of this title.(1) The annual progress report shall detail the facility's progress in implementing the pollution prevention plan and include:(A) an assessment of the progress toward the achievement of the facility source reduction goals and the facility waste minimization goals;(B) a statement to include, for facilities described in §335.473(1) of this title, the amount of hazardous waste generated and, for facilities described in §335.473(3) of this title, the amount of any releases and transfers of reportable pollutants or contaminants designated under Texas Health and Safety Code, §361.503(a)(3) in the year preceding the annual progress reporting year, and a comparison of those amounts with the amounts generated or released using the base year; and(C) any modification to the plan.(2) The annual progress report may include:(A) a discussion of the person's previous effort at the facility to reduce hazardous waste or the release of pollutants or contaminants through the pollution prevention plan;(B) a discussion of the effect changes in environmental regulations have had on the achievement of the source reduction and waste minimization goals;(C) the effects that events the person could not control have had on the achievement of the source reduction and waste minimization goals; and(D) a discussion of the operational decisions the person has made that have affected the achievement of the source reduction and waste minimization goals.(3) The annual progress report shall contain a separate component addressing source reduction activities and a separate component addressing waste minimization activities.(4) The first annual progress report shall be submitted on July 1st of the calendar year following the year of first plan due date. Thereafter, the annual progress report shall be submitted annually, due July 1st to report progress from the previous calendar year.(5) Base year data shall be used in developing both the annual progress report and the executive summary of the plan.(6) The annual progress report shall be submitted on forms furnished or approved by the executive director and shall contain at a minimum the information specified in paragraph (1) of this section. Upon written request by the facility, the executive director may authorize a modification in the reporting period.</content><note type="source"><p>Source Note: The provisions of this §335.476 adopted to be effective January 3, 1992, 16 TexReg 7532; amended to be effective July 11, 1995, 20 TexReg 4635; amended to be effective December 25, 1995, 20 TexReg 10374; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective January 30, 2003, 28 TexReg 735.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scQ/s335.477"><num value="335.477">§335.477</num><heading>Exemptions</heading><content>This subchapter does not apply to:(1) facilities regulated by the Railroad Commission of Texas under the Natural Resources Code, §91.101 or §141.012;(2) owners and operators of facilities listed in §335.473 of this title (relating to Applicability) who may apply on a case-by-case basis to the executive director for an exemption from this subchapter. The executive director may grant an exemption if the applicant demonstrates that sufficient reductions have been achieved. If an exemption is granted, it is valid only for the following year, but can be renewed, on an annual basis, by filing a new application. The executive director's decision will be based upon the following standards and criteria for determining practical economic and technical completion of the plan:(A) the facility has reduced the amount of pollutants and contaminants being generated or released by 90% since the base year;(B) potential impact on human health and the environment of any remaining hazardous waste generated, or pollutant or contaminant released; and(C) a demonstration that additional reductions are not economically and technically feasible.</content><note type="source"><p>Source Note: The provisions of this §335.477 adopted to be effective January 3, 1992, 16 TexReg 7532; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective January 30, 2003, 28 TexReg 735; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scQ/s335.478"><num value="335.478">§335.478</num><heading>Administrative Completeness</heading><content>The executive director may review a pollution prevention plan or annual progress report to determine whether the plan or report complies with this subchapter.</content><note type="source"><p>Source Note: The provisions of this §335.478 adopted to be effective January 3, 1992, 16 TexReg 7532; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective January 30, 2003, 28 TexReg 735.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scQ/s335.479"><num value="335.479">§335.479</num><heading>Enforcement</heading><content>Failure to have a pollution prevention plan in accordance with this subchapter or failure to submit a pollution prevention annual progress report in accordance with this subchapter is a violation.</content><note type="source"><p>Source Note: The provisions of this §335.479 adopted to be effective January 3, 1992, 16 TexReg 7532; amended to be effective January 30, 2003, 28 TexReg 735.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scQ/s335.480"><num value="335.480">§335.480</num><heading>Confidentiality</heading><content>(a) A pollution prevention plan shall be maintained at each facility owned or operated by a person and/or generator who is subject to this subchapter and shall be available to agency personnel for inspection. The pollution prevention plan is not a public record for the purposes of Chapter 424, Acts of the 63rd Legislature, 1973 (Texas Civil Statues, Article 6252-17a).(b) The executive summary of the plan and the annual progress report are public records. On request, the person and/or generator shall make available to the public a copy of the executive summary of the plan or annual progress report.(c) If an owner or operator of a facility for which a pollution prevention plan has been prepared shows to the satisfaction of the executive director that an executive summary of the plan, annual progress report, or portion of a summary or report prepared under this subchapter would divulge a trade secret if made public, the executive director shall classify as confidential the summary, report, or portion of the summary or report.(d) To the extent that a plan, executive summary, annual progress report, or portion of a plan, summary, or annual progress report would otherwise qualify as a trade secret, an action by the agency does not affect its status as a trade secret.(e) Information classified by the executive director as confidential under this section is not a public record for purposes of Chapter 424, Acts of the 63rd Legislature, 1973 (Texas Civil Statutes, Article 6252-17a), and may not be used in a public hearing or disclosed to a person outside the agency unless a court decides that the information is necessary for the determination of an issue being decided at the public hearing.</content><note type="source"><p>Source Note: The provisions of this §335.480 adopted to be effective January 3, 1992, 16 TexReg 7532; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective January 30, 2003, 28 TexReg 735.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scR"><num value="R">SUBCHAPTER R</num><heading>WASTE CLASSIFICATION</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.501"><num value="335.501">§335.501</num><heading>Purpose, Scope, and Applicability</heading><content>Persons who generate industrial solid waste or municipal hazardous waste shall comply with the provisions of this subchapter. Wastes that are regulated under Chapter 334, Subchapter K of this title (relating to Storage, Treatment, and Reuse Procedures for Petroleum-Substance Contaminated Soil) are not subject to the provisions of this subchapter. Persons who generate wastes in Texas shall classify their own waste according to the standards set forth in this subchapter and may do so without any prior approval or communication with the agency other than notification of waste generation activities pursuant to §335.6 of this title (relating to Notification Requirements) and submittal of required documentation pursuant to §335.513 of this title (relating to Documentation Required). A generator of industrial solid waste or special waste as defined by §330.3 of this title (relating to Definitions) shall refer to Chapter 330 of this title (relating to Municipal Solid Waste) for regulations regarding the disposal of such waste prior to shipment to a municipal landfill. Used oil, as defined and regulated under Chapter 324 of this title (relating to Used Oil), is not subject to the provisions of this subchapter. This subchapter:(1) provides a procedure for implementation of Texas waste notification system; and(2) establishes standards for classification of industrial solid waste and municipal hazardous waste managed in Texas.</content><note type="source"><p>Source Note: The provisions of this §335.501 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective February 24, 1994, 19 TexReg 1042; amended to be effective May 30, 1995, 20 TexReg 3722; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective June 11, 2020, 45 TexReg 3780.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.502"><num value="335.502">§335.502</num><heading>Conversion to Waste Notification and Classification System</heading><content>(a) Waste notification information as required under §335.6 of this title (relating to Notification Requirements) and waste codes required under §335.10(b) of this title (relating to Shipping and Reporting Procedures Applicable to Generators of Hazardous Waste or Class 1 Waste and Primary Exporters of Hazardous Waste) shall be assigned by the generator and provided to the executive director as provided by this chapter.(1) All waste notification information provided in accordance with the schedule set forth in this subchapter shall be provided in a format defined by the executive director.(2) All waste notification information may be submitted on paper or by electronic data transmission, in accordance with the requirements of §335.6 of this title.(3) Forms and format information for submitting notice of registration information on paper or by electronic means may be obtained by contacting the agency at the address listed in Appendix 2 of this subchapter.(b) The effective date for management of all wastes under this chapter is January 1, 1995. On and after this date, all solid waste generated or otherwise handled in the state shall be classified and accordingly managed pursuant to this subchapter.(c) After the effective management date as provided in subsection (b) of this section, future reclassification of a waste may be required because of changes in classification criteria. A generator whose waste stream is reclassified to a more stringent waste classification after the effective management date of this subchapter as provided in subsection (b) of this section must reclassify the waste and begin managing the waste according to the more stringent classification requirements according to the following schedule:(1) if mandated by a federal or state law, as specified in that law;(2) if a date is provided in the adoption of the amendment, as required in that rule adoption;(3) if not otherwise specified, within 180 days of the effective date of the rule amendment adopting the new classification criteria;(4) in situations where a compliance date creates an unusual hardship a generator may request a different implementation time under the variance provisions of §335.514 of this title (relating to Variance from Waste Classification Provisions).</content><note type="source"><p>Source Note: The provisions of this §335.502 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective February 24, 1994, 19 TexReg 1042; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.503"><num value="335.503">§335.503</num><heading>Waste Classification and Waste Coding Required</heading><content>(a) All industrial solid and municipal hazardous waste generated, stored, processed, transported, or disposed of in the state shall be classified according to the provisions of this subchapter.(1) All solid waste shall be classified at the point of generation of the waste. A generator may not dilute a waste to avoid a Class 1 classification; however, combining nonhazardous waste streams for subsequent legitimate processing, storage, or disposal does not constitute dilution and is acceptable. Wastes shall be classified prior to, and following any type of processing or mixing of the waste. Hazardous waste and industrial solid waste are subject to the waste management requirements of this chapter.(2) All industrial solid and municipal hazardous waste shall be classified as either:(A) hazardous;(B) Class 1;(C) Class 2; or(D) Class 3.(3) A person who generates a solid waste shall first determine if that waste is hazardous pursuant to §335.504 of this title (relating to Hazardous Waste Determination).(4) After making the hazardous waste determination as required in paragraph (3) of this subsection, if the waste is determined to be nonhazardous, the generator shall then classify the waste as Class 1, Class 2, or Class 3, pursuant to §§335.505 - 335.507 of this title (relating to Class 1 Waste Determination, Class 2 Waste Determination, and Class 3 Waste Determination) using one or more of the following methods:(A) use the criteria for waste classification as provided in §§335.505 - 335.507 of this title;(B) use process knowledge as provided in §335.511 of this title (relating to Use of Process Knowledge);(C) classify the waste as directed under §335.508 of this title (relating to Classification of Specific Industrial Wastes); or(D) choose to classify a nonhazardous waste as Class 1 without any analysis to support that classification. However, documentation (analytical data and/or process knowledge) is necessary to classify a waste as Class 2 or Class 3, pursuant to §335.513 of this title (relating to Documentation Required).(b) All industrial solid waste and municipal hazardous waste generated, stored, processed, transported or disposed of in the state shall be coded with an eight-digit waste code number that consists of a four-character sequence number followed by a three-digit form code provided in §335.521(c) of this title (relating to Appendix 3) followed by one-character, H, 1, 2, or 3, depicting the waste classification identified in subsection (a)(2) of this section. Procedures for assigning sequence numbers are outlined as follows.(1) The four-character sequence number consists of alpha and/or numeric characters.(2) Registered generators must assign a unique numeric sequence number between 0001 to 9999 to each individual waste. Sequence numbers need not be assigned in sequential order.(3) The executive director will provide unregistered generators a sequence number for each regulated waste it generates, which may be a combination of alpha and numeric characters.(4) Generators of wastes resulting from a spill may obtain a sequence number for the spill related wastes from the agency's Emergency Response Section.(5) Out-of-state generators must use the sequence number "OUTS" as the first four characters of the waste code.(6) A generator that meets the conditions of an applicable exemption from manifesting requirements that manifests their hazardous and/or Class 1 nonhazardous waste must use the sequence number "VSQG" as the first four characters of the waste code.(7) A facility which receives and consolidates like waste from a person who meets the conditions for exemption for a very small quantity generator and generated less than 100 kilograms of non-acute hazardous waste, 1 kilogram of acute hazardous waste, and 100 kilograms of Class 1 industrial waste in the calendar month during which the waste was generated must use the sequence number "VSQG" as the first four characters of the waste code for any manifesting and/or reporting associated with that waste.(8) A facility which receives a waste from off-site and consolidates that waste with other like waste received from off-site, other than its own (thus not changing the form code of the waste stream or its composition, hazardous waste classification, or Texas waste class), or stores a waste without treating, processing (as defined in §335.1 of this title (relating to Definitions), and without changing the form or composition of that waste may use the sequence number "TSDF" as the first four characters of the waste code. The sequence number TSDF may not be used to identify wastes which are treated or altered or combined with unlike wastes. The sequence number TSDF is only to be used by facilities that store and/or accumulate a quantity of wastes from more than one site for subsequent shipment to a treatment or disposal facility.(9) A healthcare facility shipping non-creditable hazardous waste pharmaceuticals to a designated facility must use the sequence number "PHRM" as the first four characters of the waste code.</content><note type="source"><p>Source Note: The provisions of this §335.503 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective February 24, 1994, 19 TexReg 1042; amended to be effective April 24, 1995, 20 TexReg 2709; amended to be effective May 30, 1995, 20 TexReg 3722; amended to be effective March 1, 1996, 21 TexReg 1425; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective January 8, 2015, 40 TexReg 77; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.504"><num value="335.504">§335.504</num><heading>Hazardous Waste Determination</heading><content>(a) Hazardous waste determination. A person who generates a solid waste, as defined in §335.1 of this title (relating to Definitions), must make an accurate determination as to whether that waste is a hazardous waste in order to ensure wastes are properly managed according to applicable Resource Conservation and Recovery Act (RCRA) and Texas Administrative Code regulations. The hazardous waste determination for each solid waste must be made at the point of waste generation, before any dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste such that the RCRA classification of the waste may change. A hazardous waste determination is made using the following steps: (1) A person must determine whether the material is excluded or exempted from regulation as a solid waste or as hazardous waste under the definition of solid waste in §335.1 of this title or identified in 40 Code of Federal Regulations (CFR) Part 261, Subpart A as amended in the Federal Register through December 9, 2019 (84 FR 67202), or Subpart E as amended in the Federal Register through August 6, 2018 (83 FR 38262). (2) If the waste is not excluded from regulation as a solid waste, the person must then use knowledge of the waste to determine whether the waste is a hazardous waste because it meets any of the listing descriptions, or is mixed with or derived from a waste that meets any of the listing descriptions identified in 40 CFR Part 261, Subpart D, as amended in the Federal Register through February 22, 2019 (84 FR 5816). Acceptable knowledge that may be used in making an accurate determination as to whether the waste is listed may include waste origin, composition, the process producing the waste, feedstock, and other reliable and relevant information. (3) The person must also determine whether the waste exhibits one or more hazardous characteristics as identified in 40 CFR Part 261, Subpart C, as amended in the Federal Register through March 18, 2010 (75 FR 12989) by following the procedures in subparagraph (A) or (B) of this paragraph or a combination of both.(A) The person must apply knowledge of the hazard characteristic of the waste in light of the materials or the processes used to generate the waste. Acceptable knowledge may include process knowledge (e.g., information about chemical feedstocks and other inputs to the production process); knowledge of products, by-products, and intermediates produced by the manufacturing process; chemical or physical characterization of wastes; information on the chemical and physical properties of the chemicals used or produced by the process or otherwise contained in the waste; testing that illustrates the properties of the waste; or other reliable and relevant information about the properties of the waste or its constituents. A test other than a test method set forth in 40 CFR Part 261, Subpart C or an equivalent test method approved by the United States Environmental Protection Agency (EPA) Administrator under 40 CFR §260.21, or by the executive director under §335.509 of this title (relating to Waste Analysis), may be used as part of a person's knowledge to determine whether a solid waste exhibits a characteristic of hazardous waste. However, such tests do not, by themselves, provide definitive results. Persons testing their waste must obtain a representative sample, as defined in §335.1 of this title, of the waste for the testing,(B) When available knowledge is inadequate to make an accurate determination, the person must test the waste according to the applicable methods set forth in 40 CFR Part 261, Subpart C or according to an equivalent method approved by the EPA Administrator under 40 CFR §260.21, or approved by the executive director under §335.509 of this title, and in accordance with the following:(i) Persons testing their waste must obtain a representative sample, as defined in §335.1 of this title, of the waste for the testing.(ii) Where a test method is specified in 40 CFR Part 261, Subpart C, the results of the regulatory test, when properly performed, are definitive for determining the regulatory status of the waste.(b) Recordkeeping for small or large quantity generators. A large quantity generator and a small quantity generator shall maintain records supporting its hazardous waste determinations in accordance with 40 CFR §262.11(f) as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste). (c) Recordkeeping for hazardous waste and Class 1 waste generators. Generators shall make and maintain records of a hazardous waste determination in accordance with §335.513 of this title (relating to Documentation Required), and 40 CFR §262.11(f) as adopted under §335.53 of this title.</content><note type="source"><p>Source Note: The provisions of this §335.504 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective March 6, 1996, 21 TexReg 2400; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective August 16, 2007, 32 TexReg 5010; amended to be effective October 29, 2009, 34 TexReg 7321; amended to be effective February 21, 2013, 38 TexReg 978; amended to be effective January 8, 2015, 40 TexReg 77; amended to be effective June 16, 2016, 41 TexReg 4259; amended to be effective June 11, 2020, 45 TexReg 3780; amendedto be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.505"><num value="335.505">§335.505</num><heading>Class 1 Waste Determination</heading><content>A nonhazardous industrial solid waste is a Class 1 waste if:(1) it contains specific constituents which equal or exceed the levels listed in §335.521(a)(1) of this title (relating to Appendix 1, Table 1) as determined by the methods outlined in this section. A nonhazardous waste is a Class 1 waste if, using the test methods described in 40 CFR Part 261 Appendix II, or equivalent methods approved by the executive director under the procedures set forth in §335.509 of this title (relating to Waste Analysis), the extract from a representative sample of the waste contains any of the contaminants listed in §335.521(a)(1) at a concentration equal to or greater than the Maximum Concentration given in that table. Information on representative samples is set forth in §335.509 of this title (relating to Waste Analysis). Where matrix interferences of the waste cause the Practical Quantitation Limit (PQL) of the specific analysis to be greater than the Maximum Concentration listed in §335.521(a)(1), then the achievable PQL becomes the Maximum Concentration, provided that the generator maintains documentation which would satisfactorily demonstrate to the executive director that lower levels of quantitation of a sample are not possible. A satisfactory demonstration includes the results from the analysis of the waste for that specific analyte by a laboratory utilizing an appropriate method described in "Test Methods for the Evaluation of Solid Waste, Physical/Chemical Methods" (EPA SW-846), "Methods for Chemical Analysis of Water and Wastes" (EPA-600/4-79/020), "Standard Methods for the Examination of Water and Wastewater," "American Society for Testing and Materials (ASTM) Standard Methods," any EPA-approved method, or an equivalent method approved by the executive director under procedures set forth in §335.509 of this title (relating to Waste Analysis);(2) it is Class 1 ignitable. A nonhazardous waste is Class 1 ignitable if a representative sample of the waste has any of the following properties:(A) it is liquid and has a flash point less than 65.6 degrees Celsius (150 degrees Fahrenheit), as determined by a Pensky-Martens Closed Cup Tester, using the test method specified in ASTM Standard D-93-79 or D-93-80, or a Setaflash Closed Cup Tester, using the test method specified in ASTM Standard D-3278-78 or as determined by an equivalent test method approved by the executive director under procedures set forth in §335.509 of this title (relating to Waste Analysis); or(B) it is a physical solid or semi-solid under which conditions normally incident to storage, transportation, and disposal is capable of causing fires through friction, or retained heat from manufacturing or processing, or which can be ignited readily, and when ignited burns both vigorously and persistently such that it creates a serious hazard. Included in this class are spontaneously combustible and water-reactive materials, including but not necessarily limited to the substances listed in §335.521(a)(2) of this title (relating to Appendix 1, Table 2) and found in 49 CFR Part 173 Subchapter E. Generators should demonstrate that a waste with significant concentrations of these constituents is not Class 1 ignitable;(3) it is Class 1 corrosive. A nonhazardous waste is Class 1 corrosive if a representative sample of the waste is a semi-solid or solid which, when mixed with an equivalent weight of ASTM Type II laboratory distilled or deionized water, produces a solution having a pH less than or equal to 2 or greater than or equal to 12.5. Solidified, stabilized, encapsulated, or otherwise chemically-bound wastes are not subject to this requirement provided the waste is solidified such that when a representative sample of the waste is subjected to the paint filter test (SW-846 Method 9095) it exhibits no free liquids. An equivalent method approved by the executive director under procedures set forth in §335.509 of this title (relating to Waste Analysis) may be utilized;(4) it contains total recoverable cyanides equal to or greater than 20 parts per million;(5) there is an absence of analytical data and/or documented process knowledge (as described in §335.511 of this title (relating to Use of Process Knowledge)) which proves a waste is Class 2 or Class 3;(6) it is identified as a Class 1 waste in §335.508 of this title (relating to Classification of Specific Industrial Solid Wastes); or(7) it is not a hazardous waste pursuant to §335.504 of this title (relating to Hazardous Waste Determination) and a generator chooses to classify the waste as Class 1.</content><note type="source"><p>Source Note: The provisions of this §335.505 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective May 30, 1995, 20 TexReg 3722.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.506"><num value="335.506">§335.506</num><heading>Class 2 Waste Determination</heading><content>(a) An industrial solid waste is a Class 2 waste if:(1) it is not a hazardous waste pursuant to §335.504 of this title (relating to Hazardous Waste Determination);(2) it is not a Class 1 waste pursuant to §335.505 of this title (relating to Class 1 Waste Determination); and(3) it is not a Class 3 waste because:(A) it cannot qualify as a Class 3 waste pursuant to §335.507 of this title (relating to Class 3 Waste Determination); or(B) a generator chooses not to classify the waste as a Class 3 waste.(b) Any waste designated as a Class 2 waste under §335.508 of this title (relating to Classification of Specific Industrial Solid Wastes) is a Class 2 waste.</content><note type="source"><p>Source Note: The provisions of this §335.506 adopted to be effective November 27, 1992, 17 TexReg 8010.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.507"><num value="335.507">§335.507</num><heading>Class 3 Waste Determination</heading><content>An industrial solid waste is a Class 3 waste if it is inert and essentially insoluble, and poses no threat to human health and/or the environment. Class 3 wastes include, but are not limited to, materials such as rock, brick, glass, dirt, and certain plastics and rubber, which are not readily decomposable. An industrial solid waste is a Class 3 waste if it:(1) is not a hazardous waste pursuant to §335.504 of this title (relating to Hazardous Waste Determination);(2) does not meet any of the Class 1 waste criteria set forth in §335.505 of this title (relating to Class 1 Waste Determination); and(3) is inert. Inertness refers to chemical inactivity of an element, compound, or a waste. Ingredients added to mixtures chiefly for bulk and/or weight purposes are normally considered inert; and(4) is essentially insoluble.(A) Essential insolubility is established:(i) when, using the test methods specified in §335.521(d) of this title (relating to Appendix 4 (Seven-Day Distilled Water Leachate Test)), the extract(s) from the representative sampling of the waste does not leach greater than the Maximum Contaminant Levels listed in §335.521(a)(3) of this title (relating to Appendix 1, Table 3); and(ii) using the test methods described in 40 Code of Federal Regulations Part 261, Appendix II, or equivalent methods approved by the executive director under the procedures set forth in §335.509 of this title (relating to Waste Analysis), the extract(s) from the representative sampling of the waste does not exhibit detectable levels of constituents found in §335.521(a)(1) of this title (relating to Appendix 1, Table 1) including constituents in §335.521(a)(3) of this title which are marked with an asterisk. This excludes the constituents listed in §335.521(a)(3) of this title which were addressed in clause (i) of this subparagraph; and(iii) when using an appropriate test method, representative sampling of the waste does not exhibit detectable levels of total petroleum hydrocarbon (TPH). "Petroleum substance wastes" as defined in §334.481 of this title (relating to Definitions) are not subject to this subsection; and(iv) when, using an appropriate test method, representative sampling of the waste does not exhibit detectable levels of polychlorinated biphenyls (PCBs).(B) Subparagraph (A) of this paragraph does not apply to naturally occurring material, i.e., soil, rock, etc., if the generator can demonstrate that the levels present in the waste are naturally occurring in the background of that particular material.(C) If the detection level submitted by the generator is challenged by the executive director or the commission, and for other enforcement purposes, the burden is on the generator to demonstrate that the detection level was reasonable for the material in question and for the technology in use at the time the waste was classified.</content><note type="source"><p>Source Note: The provisions of this §335.507 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective February 24, 1994, 19 TexReg 1042; amended to be effective May 30, 1995, 20 TexReg 3722; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.508"><num value="335.508">§335.508</num><heading>Classification of Specific Industrial Solid Wastes</heading><content>The following nonhazardous industrial solid wastes shall be classified no less stringently than according to the provisions of this section.(1) Industrial solid waste containing asbestos material identified as regulated asbestos containing material (RACM), as defined in 40 Code of Federal Regulations (CFR) Part 61, shall be classified as a Class 1 waste.(2) Empty containers that are a solid waste as defined in §335.1 of this title (relating to Definitions) shall be subject to the following criteria:(A) A container which has held a Hazardous Substance as defined in 40 CFR Part 302, a Hazardous waste, a Class 1 waste, or a material which would be classified as a Hazardous or Class 1 waste if disposed of, and is empty per §335.41(f)(2) of this title (relating to Purpose, Scope and Applicability concerning empty containers):(i) shall be classified as a Class 1 waste;(ii) may be classified as a Class 2 waste if the container has a capacity of five gallons or less; or(iii) may be classified as a Class 2 waste if the container has a capacity greater than five gallons and:(I) the residue has been completely removed either by triple rinsing with a solvent capable of removing the waste, by hydroblasting, or by other methods which remove the residue; and(II) the container has been crushed, punctured, or subjected to other mechanical treatment which renders the container unusable; or(iv) may be classified as a Class 2 waste if the container is to be sent for recycling and:(I) the residue has been completely removed either by triple rinsing with a solvent capable of removing the waste, by hydroblasting, or by other methods which remove the residue; and(II) the container is not regulated under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) 40 CFR Part 165; and(III) the generator maintains documentation in accordance with §335.513 of this title (relating to Documentation Required) that demonstrates the container is being recycled; and(IV) the recycling activity involves shredding, dismantling, scrapping, melting, or other method that renders the container unusable.(B) A container which has held a Class 2 waste shall be classified as a Class 2 waste.(C) Aerosol cans that have been depleted of their contents, such that the inner pressure of the can equals atmospheric pressure and minimal residues remain in the can, may be classified as a Class 2 wastes.(3) Plant trash refers only to paper, cardboard, food wastes, and general plant trash. These wastes shall be subject to the following classification criteria.(A) The form code 999 ("PLANT TRASH") refers only to Class 2 waste originating in the facility offices or plant production area that is composed of paper, cardboard, linings, wrappings, paper and/or wooden packaging materials, food wastes, cafeteria waste, glass, aluminum foil, aluminum cans, aluminum scrap, stainless steel, steel, iron scrap, plastics, styrofoam, rope, twine, uncontaminated rubber, uncontaminated wooden materials, equipment belts, wirings, uncontaminated cloth, metal bindings, empty containers with a holding capacity of five gallons or less, uncontaminated floor sweepings, and/or food packaging, that are produced as a result of plant production, manufacturing, laboratory, general office, cafeteria, or food services operations. Also included in plant trash are personal cosmetics generated by facility personnel, excluding those cosmetics generated as a result of manufacturing or plant production operations. Plant refuse shall not include oils, lubricants of any type, oil filters, contaminated soils, sludges, wastewaters, bulk liquids of any type, or Special Wastes as defined by §330.3 of this title (relating to Definitions).(B) The form code 902 ("SUPPLEMENTAL PLANT PRODUCTION REFUSE") only applies to Class 2 Waste from production, manufacturing, or laboratory operations. The total amount of the supplemental plant production refuse (form code 902) shall not exceed 20% of the annual average of the total plant refuse (form code 999) volume or weight, whichever is less. Individual wastes which have been designated supplemental plant production refuse may be designated by the generator at a later time as a separate waste in order to maintain the supplemental plant production refuse at or below 20% of the appropriate plant refuse amount. For any waste stream included with, removed from, or added to the supplemental plant refuse designation (form code 902), the generator must provide the notification information required pursuant to this subchapter.(4) Medical wastes which are subject to the provisions of Chapter 326 of this title (relating to Medical Waste Management) shall be designated as Class 2 wastes.(5) Media contaminated by a material containing greater than or equal to 50 parts per million total polychlorinated biphenyls (PCBs) and wastes containing greater than or equal to 50 ppm PCBs shall be classified as Class 1.(6) Wastes which are petroleum substances or contain contamination from petroleum substances, as defined in §335.1 of this title shall be classified as a Class 1 waste until a generator demonstrates that the waste's total petroleum hydrocarbon concentration (TPH) is less than or equal to 1,500 parts per million (ppm). Where hydrocarbons cannot be differentiated into specific petroleum substances, then such wastes with a TPH concentration of greater than 1,500 ppm shall be classified as a Class 1 waste. Wastes resulting from the cleanup of leaking underground storage tanks (USTs) which are regulated under Chapter 334, Subchapter K of this title (relating to Storage, Treatment and Reuse Procedures for Petroleum Substance Contaminated Soil) are not subject to classification under this subchapter.(7) Wastes generated by the mechanical shredding of automobiles, appliances, or other items of scrap, used, or obsolete metals shall be handled according to the provisions set forth in Texas Health and Safety Code, §361.019, until the commission develops specific standards for the classification of this waste and assures adequate disposal capacity.(8) If a nonhazardous industrial solid waste is generated as a result of commercial production of a "new chemical substance" as defined by the federal Toxic Substances Control Act, 15 United States Code §2602(9), the generator shall notify the executive director prior to the processing or disposal of the waste and shall submit documentation requested under §335.513(b) and (c) of this title for review. The waste shall be managed as a Class 1 waste, unless the generator can provide appropriate analytical data and/or process knowledge which demonstrates that the waste is Class 2 or Class 3, and the executive director concurs. If the generator has not received concurrence from the executive director within 120 days from the date of the request for review, the generator may manage the waste according to the requested classification, but not prior to giving ten working days written notice to the executive director.(9) All nonhazardous industrial solid waste generated outside the state of Texas and transported into or through Texas for processing, storage, or disposal shall be classified as:(A) Class 1; or(B) may be classified as a Class 2 or Class 3 waste if:(i) the material satisfies the Class 2 or Class 3 criteria as defined in §§335.506, 335.507 or 335.508 of this title (relating to Class 2 Waste Determination; Class 3 Waste Determination; Classification of Specific Industrial Solid Wastes); and(ii) a request for Class 2 or Class 3 waste determination is submitted to the executive director accompanied by all supporting documentation as required by §335.513 of this title. Waste generated out-of-state may be assigned a Class 2 or Class 3 classification only after approval by the executive director.(10) Wastes which are hazardous solely because they exhibit a hazardous characteristic, which are not considered hazardous debris as defined in 40 CFR §268.2(g), which are subsequently stabilized and no longer exhibit a hazardous characteristic and which meet the land disposal restrictions as defined in 40 CFR Part 268 may be classified according to the Class 1 or Class 2 classification criteria as defined in §§335.505, 335.506, and 335.508 of this title.</content><note type="source"><p>Source Note: The provisions of this §335.508 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective February 24, 1994, 19 TexReg 1042; amended to be effective May 30, 1995, 20 TexReg 3722; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective May 26, 2016, 41 TexReg 3739.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.509"><num value="335.509">§335.509</num><heading>Waste Analysis</heading><content>(a) Generators who use analytical methods to classify their waste must use methods described in "Test Methods for the Evaluation of Solid Waste, Physical/Chemical Methods" (EPA SW-846), "Methods for Chemical Analysis of Water and Wastes" (EPA-600/4-79/020), "Standard Methods for the Examination of Water and Wastewater", American Society for Testing and Materials (ASTM) Standard Methods, or any other approved EPA methods or may request in writing that the executive director review and approve an alternate method. The generator must also choose representative sample(s) of their waste, as described in Chapter 9 of EPA SW-846. A generator who proposes to use an alternate method must validate the alternate method by demonstrating that the method is equal to or superior in accuracy, precision, and sensitivity to the corresponding SW-846, EPA-600, Standard Method or ASTM method identified in this subsection.(b) The generator proposing an alternate method shall provide the executive director with the following information:(1) a full description of the proposed method including all equipment used;(2) a description of the types of wastes and waste matrices analyzed or to be analyzed;(3) comparative quality assurance results of the proposed method and the corresponding SW-846 method;(4) a complete assessment of any factors which may interfere with the method; and(5) a description of the Quality Control procedures necessary to ensure the sensitivity, accuracy, and precision of the proposed method.(c) Upon request of the executive director, the generator shall provide additional information as necessary to enable the executive director to adequately review the alternate methods proposed by the generator.</content><note type="source"><p>Source Note: The provisions of this §335.509 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective February 24, 1994, 19 TexReg 1042; amended to be effective May 30, 1995, 20 TexReg 3722; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.510"><num value="335.510">§335.510</num><heading>Sampling Documentation</heading><content>(a) Generators who use analytical data to classify their waste pursuant to §335.509 of this title (relating to Waste Analysis) must maintain documentation of their sampling procedures in accordance with this section and 40 Code of Federal Regulations §262.11(f) as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste).(b) The sampling documentation must, at a minimum, include the following:(1) dates samples were collected;(2) a description of the site or unit from which the sample is taken and sampling location(s) at the site unit;(3) sample methods and sample equipment utilized; and(4) description of sample handling techniques, including containerization, preservation, and chain of custody.(c) Generators shall document all the information listed in subsection (b) of this section, and shall retain copies on-site in accordance with §335.513 of this title (relating to Documentation Required).(d) Generators who have existing sampling documentation, which includes the information listed in subsection (b) of this section, do not need to prepare any new documentation specifically for this section.</content><note type="source"><p>Source Note: The provisions of this §335.510 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective February 24, 1994, 19 TexReg 1042; amended to be effective May 30, 1995, 20 TexReg 3722; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.511"><num value="335.511">§335.511</num><heading>Use of Process Knowledge</heading><content>(a) Generators using knowledge of the waste and the process producing the waste to classify or assist in classifying a waste as hazardous shall comply with §335.504 of this title (relating to Hazardous Waste Determination). Generators using knowledge of the waste to classify or assist in classifying a waste as Class 1, Class 2, or Class 3 shall comply with this section and consider the waste origin, composition, the process producing the waste, feedstock, and other reliable and relevant information. Process knowledge must be documented and maintained on-site pursuant to §335.513 of this title (relating to Documentation Required), and 40 CFR §262.11(f) as adopted by reference under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste). Material safety data sheets, manufacturers' literature, and other documentation generated in conjunction with a particular process may be used to classify a waste provided that the literature provides reliable and relevant information about the waste and addresses the criteria set forth in §§335.504 - 335.508 of this title (relating to Hazardous Waste Determination, Class 1 Waste Determination, Class 2 Waste Determination, Class 3 Waste Determination, and Classification of Specific Industrial Solid Wastes). For classes other than hazardous or Class 1, a generator must be able to demonstrate requisite knowledge of his or her process by satisfying all of the following.(1) The generator must have a full description of the process, including a list of chemical constituents that enter the process. Constituents listed in Appendix 1 in §335.521 of this title (relating to Appendices) must be addressed in this description.(2) The generator must have a full description of the waste, including a list of chemical constituents likely to be in the waste. This list should be based on paragraph (1) of this subsection.(3) The generator may develop a subset of Appendix 1 of §335.521 of this title constituents by which to evaluate the waste utilizing the information from paragraphs (1) and (2) of this subsection.(4) Documentation of the waste classification must be maintained and, if requested or required, provided to the executive director pursuant to §335.513 of this title.(b) If the total concentration of the constituents demonstrates that individual analytes are not present in the waste, or that they are present but at such low concentrations that the appropriate maximum leachable concentrations could not possibly be exceeded, the Toxicity Characteristic Leaching Procedure (TCLP) extraction procedure discussed in §335.505(1) of this title need not be run. If an analysis of any one of the liquid fractions of the TCLP extract indicates that a regulated constituent is present at such high concentrations that, even after accounting for dilution from the other fractions of the extract, the concentration would be equal to or greater than the maximum leachable concentration for that constituent, then the waste is Class 1, and it is not necessary to analyze the remaining fractions of the extract.</content><note type="source"><p>Source Note: The provisions of this §335.511 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective February 24, 1994, 19 TexReg 1042; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.512"><num value="335.512">§335.512</num><heading>Executive Director Review</heading><content>(a) The executive director may review the generator's classification of any waste to determine if it is appropriately classified. If the executive director determines that a waste has been classified incorrectly according to the standards set forth in this subchapter, or if the executive director determines that extenuating circumstances that may result in threat of harm to human health or the environment warrant an upgrading of the classification, the executive director may reclassify the waste to the more stringently regulated classification. The executive director shall provide the generator with written notice of his determination and reclassification.(b) A person who believes that the executive director staff has inappropriately classified a waste pursuant to this section may appeal that decision. The person shall file an appeal directly with the executive director requesting a review of the waste classification. If the person is not satisfied with the decision of the executive director on the appeal, the person may request an evidentiary hearing to determine the appropriateness of the classification by filing a request for hearing with the commission.</content><note type="source"><p>Source Note: The provisions of this §335.512 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective February 24, 1994, 19 TexReg 1042; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.513"><num value="335.513">§335.513</num><heading>Documentation Required</heading><content>(a) Documentation on each waste stream is required to be maintained by the generator in accordance with the requirements of this subchapter, §335.9 of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators), and 40 Code of Federal Regulations §262.11(f) as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste).(b) The following documentation shall be submitted by the generator to the executive director prior to waste shipment or disposal and not later than 90 days of initial waste generation:(1) description of waste;(2) date of initial waste generation;(3) description of process that generated the waste;(4) hazardous waste determination;(5) all analytical data and/or process knowledge allowed under §335.511 of this title (relating to Use of Process Knowledge) used to characterize Class 3 wastes, including quality control data; and(6) waste classification determination.(c) The following documentation shall be maintained by the generator on site immediately upon waste generation and for a minimum of three years after the waste is no longer generated or stored or until site closure:(1) all information required under subsection (b) of this section;(2) all analytical data and/or process knowledge allowed under §335.511 of this title used to characterize hazardous, Class 1, Class 2, and Class 3 wastes, including quality control data.(d) The executive director may request that a generator submit all documentation listed in subsections (b) and (c) of this section for auditing the classification assigned. Documentation requested under this section shall be submitted within ten working days of receipt of the request.(e) Any changes to the information required in sections (b) and (c) of this subsection shall be maintained or submitted according to the timing requirements of this section.(f) A generator may request information provided to the agency remain confidential in accordance with the Texas Open Records Act, the Texas Government Code, Chapter 552.</content><note type="source"><p>Source Note: The provisions of this §335.513 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective February 24, 1994, 19 TexReg 1042; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.514"><num value="335.514">§335.514</num><heading>Variance from Waste Classification Provisions</heading><content>(a) The executive director may determine on a case-by-case basis the merits of the following types of variances:(1) appropriateness of a particular waste classification resulting from application of the classification criteria; and(2) other matters requiring special attention by the executive director.(b) Factors to be considered in determining whether a variance should be granted include, but are not limited to, the risk to human health and the environment that is presented by the requested variance. In addition, such factors as circumstances which were reasonably unforeseeable and beyond the reasonable control of the generator (for the type of variance authorized by subsection (a)(1) of this section); and the results of laboratory analyses and laboratory quality assurance/quality control information (for the type of variance authorized by subsection (a)(2) of this section) shall also be considered. The burden of justifying the need for a variance is on the requestor, and the requestor must submit information sufficient to clearly indicate the issues involved, the reason(s) for the request, and both positive and negative impacts that may result from the granting of the variance. Written documentation on the description of the waste, the date of initial generation, the description of the process that generated the waste, and the analytical data on the waste shall also be submitted with each variance request for a specific waste stream. Prior approval of the variance must be obtained before any change is authorized. If a variance request is denied, the executive director shall provide an explanation of the reasons for the denial in a written response to the requestor.(c) A person who feels that the executive director has inappropriately denied a request for variance may appeal that decision. The person shall file an appeal directly with the executive director requesting a review of the variance. If the person is not satisfied with the decision of the executive director, he or she may request an evidentiary hearing to determine the appropriateness of the variance, by filing a request for hearing with the commission.</content><note type="source"><p>Source Note: The provisions of this §335.514 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective February 24, 1994, 19 TexReg 1042; amended to be effective May 30, 1995, 20 TexReg 3722; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.515"><num value="335.515">§335.515</num><heading>Enforcement</heading><content>(a) It is a violation of commission rules if a waste is not properly classified according to the provisions of this subchapter.(b) Where violations of this subchapter occur, the executive director may initiate formal enforcement action and may seek administrative penalties and order corrective actions, as prescribed under Chapter 337 of this title (relating to Enforcement), or pursue any other remedy available at law.(c) When establishing corrective actions and penalty amounts involving violations of this subchapter, the executive director should consider circumstances which mitigate the nature or extent of the violations in accordance with applicable rules and statutes.</content><note type="source"><p>Source Note: The provisions of this §335.515 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective May 30, 1995, 20 TexReg 3722.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scR/s335.521"><num value="335.521">§335.521</num><heading>Appendices</heading><content>(a) Appendix 1. (1) Table 1.Attached Graphic(2) Table 2.Attached Graphic(3) Table 3.Attached Graphic(b) Appendix 2.Attached Graphic(c) Appendix 3.Attached Graphic(d) Appendix 4.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §335.521 adopted to be effective May 30, 1995, 20 TexReg 3722; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scS"><num value="S">SUBCHAPTER S</num><heading>RISK REDUCTION STANDARDS</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.551"><num value="335.551">§335.551</num><heading>Purpose, Scope, and Applicability</heading><content>(a) Purpose. This subchapter specifies the information and procedures necessary to demonstrate compliance with the three risk reduction standards of §335.8 of this title (relating to Closure and Remediation).(b) Scope. The requirements of this subchapter will, when adequately carried out, assure adequate protection of human health and the environment from potential exposure to contaminants associated with releases from solid waste management facilities or other areas. Cleanup levels are specified for different types of contaminated media such as air, surface water, groundwater, and soil, and for cross-media contamination pathways such as soil to groundwater and soil to air. General procedures based on scientific principles are provided or referenced by these regulations so that specific numeric cleanup levels can be generated. The commission will periodically review the general procedures and revise these regulations as necessary.(c) Applicability. The requirements of this subchapter apply to persons who undertake a closure or remediation in accordance with §335.8 of this title (relating to Closure and Remediation) during the period from June 28, 1993, until May 1, 2000, unless the person qualifies for an extended period of time as specified in §335.8(a) of this title (relating to Applicability) for submission of a final report to be reviewed according to this subchapter. If the executive director denies approval of the final report for reasons of technical inadequacy, the executive director may require the person to comply with the requirements of Chapter 350 of this title (relating to Texas Risk Reduction Program). For closures and remediations initially reported to the executive director on or after May 1, 2000, the person shall use the procedures of Chapter 350 of this title in place of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §335.551 adopted to be effective June 28, 1993, 18 TexReg 3814; amended to be effective September 23, 1999, 24 TexReg 7426.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.552"><num value="335.552">§335.552</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.(1) Carcinogen--Substances which have been classified for human carcinogenic risk based on the United States Environmental Protection Agency's Weight of Evidence System of Carcinogenicity as Group A--Human Carcinogen; Group B--Probable Human Carcinogen; or Group C--Possible Human Carcinogen.(2) Carcinogen classification--The basis by which substances are classified for human carcinogenic risk based on the United States Environmental Protection Agency's Weight of Evidence System for Carcinogenicity: Group A--Human Carcinogen; Group B--Probable Human Carcinogen; Group C--Possible Human Carcinogen; Group D--Not Classifiable as to Human Carcinogenicity; and Group E--Evidence of Non-Carcinogenicity for Humans.(3) Long-term effectiveness--The ability of a remediation or corrective action to maintain over time the required level of protection of human health and the environment.(4) Nonresidential property--Any real property or portion of a property not currently being used for human habitation or for other purposes with a similar potential for human exposure, at which activities have been or are being conducted, having the primary Standard Industrial Classification (SIC) major group numbers 01-48 inclusive, 49 except 4941, 50-67 inclusive, 72-79 inclusive, 80 except 8051, 8059, 8062, 8063, 8069, 81 and 82 except 8211, 8221, 8222, 83 except 8351, 8361, 84-86 except 8661, 87-91 inclusive, 92 except 9223, and 93-97 inclusive. Nonresidential property includes all of the block(s) and lot(s) controlled by the same owner or operator that are vacant land, or that are used in conjunction with such business. For leased properties, nonresidential property includes the leasehold and any external tank, surface impoundment, septic system, or any other structure, vessel, contrivance, or unit that provides, or is utilized, for the management of contaminants to or from the leasehold.(5) Permanence/permanent/permanently--The property of achieving the maximum degree of long-term effectiveness and of enduring indefinitely without posing the threat of any future release that would increase the risk above levels established for the facility or area.(6) Point of exposure--A location where human or environmental receptors can come into contact with contaminants; also, a location which can be arbitrarily determined for purposes of estimating or measuring the concentration of contaminants available for exposure.(7) Practical quantitation limit/PQL--The lowest concentration of an analyte which can be reliably quantified within specified limits of precision and accuracy during routine laboratory operating conditions. The PQL minimizes to the extent possible the effects of instrument and operator variability and the influences of the sample matrix and other contaminants or substances upon the quantitation of the analyte. "Specified limits of precision and accuracy" are the criteria which have been included in applicable regulations or which are listed in the quality control sections of the analytical method. The PQL may be directly obtained or derived from the following sources with preference given to the most recent, scientifically valid method: federal regulations; EPA guidance documents; calculation from interlaboratory studies; and experimentally determined analytical methods not available from other existing sources.(8) Residential property--Any property that does not exclusively meet the definition of nonresidential property. Also, a portion of nonresidential property that is used in part for residential activities, such as a day care center, is defined as residential.(9) Systemic toxicant--Substances shown either through epidemiological studies or through laboratory studies to cause adverse health effects other than cancer.</content><note type="source"><p>Source Note: The provisions of this §335.552 adopted to be effective June 28, 1993, 18 TexReg 3814.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.553"><num value="335.553">§335.553</num><heading>Required Information</heading><content>(a) For Risk Reduction Standard Number 1 or 2, the person shall provide a final report that documents attainment of the risk reduction standard in accordance with §335.554 or §335.555 of this title (relating to Attainment of Risk Reduction Standard Number 1 and Attainment of Risk Reduction Standard Number 2). The report shall include, but is not limited to, descriptions of procedures and conclusions of the investigation to characterize the nature, extent, direction, rate of movement, volume, composition and concentration of contaminants in environmental media; basis for selecting environmental media of concern; documentation supporting selection of exposure factors; descriptions of removal or decontamination procedures performed in closure or remediation; summaries of sampling methodology and analytical results which demonstrate that contaminants have been removed or decontaminated to applicable levels; and a document that the person proposes to use to fulfill the requirements of §335.560(b) of this title (relating to Post-Closure Care and Deed Certification for Risk Reduction Standard Number 2), as applicable. (b) Risk Reduction Standard Number 3, the person shall conduct the activities set forth in paragraphs (1) - (4) of this subsection. The results of activities required by paragraphs (1) - (3) of this subsection may be combined to address a portion of a facility or one or more facilities of a similar nature or close proximity. The submittal shall be subject to review and approval by the executive director prior to carrying out the closure or remediation. Upon completion of the approved activity, the person shall submit the final report required by paragraph (4) of this subsection. (1) The person shall prepare a remedial investigation report which contains sufficient documentation such as, but not limited to, descriptions of procedures and conclusions of the investigation to characterize the nature, extent, direction, rate of movement, volume, composition, and concentration of contaminants in environmental media of concern, including summaries of sampling methodology and analytical results. Information obtained from attempts to attain Risk Reduction Standard Number 1 or 2 may be submitted for this purpose. (2) The person shall prepare a baseline risk assessment report which describes the potential adverse effects under both current and future conditions caused by the release of contaminants in the absence of any actions to control or mitigate the release. The report shall also discuss the degree of uncertainty associated with the baseline risk assessment. Residential land use with on-site exposure shall be assumed to evaluate the future use condition unless the person demonstrates to the satisfaction of the executive director that a different land use assumption such as industrial use is more appropriate. The standard exposure factors set forth in Table 1 (located following paragraph (4) of this subsection) shall be used unless the person documents to the executive director's satisfaction that site-specific exposure data should be used instead. (3) The person shall evaluate the relative abilities and effectiveness of potential remedies to achieve the requirements for remedies described in §335.561 of this title (relating to Attainment of Risk Reduction Standard Number 3: Closure/Remediation with Controls) when considering the evaluation factors described in §335.562 of this title (relating to Remedy Evaluation Factors for Risk Reduction Standard Number 3). Using this information, the person shall prepare a corrective measure study which recommends the remedy which best achieves the requirements for remedies described in §335.561 of this title. Persons may seek to satisfy the requirements of §335.564 of this title (relating to Post-Closure Care Not Required for Risk Reduction Standard Number 3) by demonstrating in the corrective measure study using the procedures of §335.563 of this title (relating to Media Cleanup Requirements for Risk Reduction Standard Number 3) that no remedy needs to be performed since the existing conditions of the facility or area conform to the media cleanup requirements without the use of removal, decontamination or control measures. Persons may also seek to satisfy the requirements of §335.564 of this title by demonstrating in the corrective measure study that following completion of their recommended removal and/or decontamination activities the conditions of the facility or area will conform to the media cleanup requirements of §335.563 of this title without the use of control measures. Upon review of the corrective measure study, the executive director may require the person to further evaluate the proposed remedy or to evaluate one or more additional remedies. (4) The person shall submit to the executive director, for review and acceptance, a final report containing sufficient documentation which demonstrates that the remedy has been completed in accordance with the approved plan and also a document that the person proposes to use to fulfill the requirements of §335.566 of this title (relating to Deed Recordation for Risk Reduction Standard Number 3). Attached Graphic(c) For risk reduction standards Numbers 1, 2, and 3, in order for a treatment process to achieve decontamination in contrast to being a control measure, the person must demonstrate to the satisfaction of the executive director that the treatment process permanently alters all contaminants to levels that will not pose a substantial present or future threat to human health and the environment, and must further demonstrate that any residue remaining in place from the treatment will not pose the threat of any future release that would increase the concentrations of contaminants in environmental media above the cleanup levels determined for that particular risk reduction standard. (d) For Risk Reduction Standards Numbers 1, 2, and 3, attainment of cleanup levels shall be demonstrated by collection and analysis of samples from the media of concern. Persons shall utilize techniques described in SW 846, Test Methods for Evaluating Solid Waste, EPA, or other available guidance in developing a sampling and analysis plan appropriate for the distribution, composition, and heterogeneity of contaminants and environmental media. A sufficient number of samples shall be collected and analyzed for individual compounds to both accurately assess the risk to human health and the environment posed by the facility or area and to demonstrate the attainment of cleanup levels. Noncompound-specific analytical techniques (e.g., total petroleum hydrocarbons, total organic carbon, etc.) may, where appropriate for the nature of the wastes or contaminants, be used to aid in the determination of the lateral and vertical extent and volume of contaminated media; however, such noncompound-specific analyses will serve only as indicator measures and must be appropriately supported by compound-specific analyses. Comparisons may be based on the following methods: (1) direct comparison of the results of analysis of discrete samples of the medium of concern with the cleanup level; (2) for a data set of ten or more samples, statistical comparison of the results of analysis utilizing the 95% confidence limit of the mean concentration of the contaminant as determined by the following expression: Attached Graphic(3) other statistical methods appropriate for the distribution of the data, subject to prior approval by the executive director. Attached Graphic(e) For Risk Reduction Standards Numbers 2 and 3, in determining toxicity information for contaminants (e.g., EPA carcinogen classification, type of toxicant, reference doses, carcinogenic slope factors, etc.), persons shall utilize values from the following sources in the order indicated. For Risk Reduction Standard Number 2, persons may utilize data from these sources that are more current than those used to derive the unadjusted medium-specific concentrations listed in §335.568 of this title (relating to Appendix II), provided that substantiating information is furnished to the executive director in the report required by §335.555(f) of this title (relating to Attainment of Risk Reduction Standard Number 2: Closure/Remediation to Health-Based Standards and Criteria). (1) Integrated Risk Information System (IRIS); (2) Health Effects Assessment Summary Table (HEAST); (3) EPA Criteria Documents; (4) Agency for Toxic Substances and Disease Registry (ATSDR) Toxicological Profiles; and (5) other scientifically valid published sources. (f) For Risk Reduction Standards Numbers 2 and 3, persons determining cleanup levels for contaminated media characterized by noncompound-specific analytical techniques (e.g., total petroleum hydrocarbons, total organic carbon, etc.) and for which individual compounds such as hazardous constituents are not present as contaminants, must at a minimum consider other scientifically valid published numeric criteria to address: adverse impacts on environmental quality; adverse impacts on the public welfare and safety; conditions that present objectionable characteristics (e.g., taste, odor, etc.); or conditions that make a natural resource unfit for use. (g) All engineering and geoscientific information submitted to the agency shall be prepared by, or under the supervision of, a licensed professional engineer or licensed professional geoscientist, and shall be signed, sealed, and dated by qualified professionals as required by the Texas Engineering Practice Act and the Texas Geoscience Practice Act and the licensing and registration boards under these acts.</content><note type="source"><p>Source Note: The provisions of this §335.553 adopted to be effective June 28, 1993, 18 TexReg 3814; amended to be effective September 1, 2003, 28 TexReg 6915.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.554"><num value="335.554">§335.554</num><heading>Attainment of Risk Reduction Standard Number 1: Closure/Remediation to Background</heading><content>(a) Compliance with this standard is attained when the criteria set forth in subsections (b)-(g) of this section are met.(b) For closure of hazardous waste management units and response to unauthorized discharges of hazardous waste, all hazardous waste and hazardous waste residues and contaminated design and operating system components such as liners, leachate collection systems, and dikes must be removed from the unit or area of the unauthorized discharge. For remediation of media that have become contaminated by releases from a hazardous waste management unit or by other unauthorized discharge of hazardous waste, the contaminated media must be removed or decontaminated to cleanup levels specified in this section.(c) For closure of nonhazardous industrial solid waste management units, response to unauthorized discharges of nonhazardous industrial solid waste, and the remediation of media that have become contaminated by discharges of nonhazardous industrial solid waste or other contaminants, all waste and waste residues, contaminated design and operating system components such as liners, leachate collection systems, and dikes, and contaminated media must be removed or decontaminated to cleanup levels specified in this section.(d) Background as represented by results of analyses of samples taken from media that are unaffected by waste management or industrial activities shall be used to determine compliance with the requirements of this section. If the practical quantitation limit (PQL) is greater than background, then the PQL rather than background shall be used as the cleanup level provided that the person satisfactorily demonstrates to the executive director that lower levels of quantitation of a contaminant are not possible.(e) Attainment of cleanup levels shall be demonstrated by collection and analysis of samples from the media of concern using the procedures of §335.553(d) of this title (relating to Required Information).(f) The person must submit a report to the executive director in accordance with §335.553(a) of this title (relating to Required Information) that documents compliance with the requirements of this section.(g) Provided that attainment of this risk reduction standard for the facility or area can be demonstrated to the executive director pursuant to this section, the person is released from deed recordation requirements of §335.5 of this title (relating to Deed Recordation of Waste Disposal) and post-closure care responsibilities.</content><note type="source"><p>Source Note: The provisions of this §335.554 adopted to be effective June 28, 1993, 18 TexReg 3814.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.555"><num value="335.555">§335.555</num><heading>Attainment of Risk Reduction Standard Number 2: Closure/Remediation to Health-Based Standards and Criteria</heading><content>(a) Compliance with this standard is attained when the criteria set forth in subsections (b)-(f) of this section are met.(b) For closure of hazardous waste management units and response to unauthorized discharges of hazardous waste, all hazardous waste and hazardous waste residues must be removed from the unit or area of the unauthorized discharge. Contaminated design and operating system components such as liners, leachate collection systems, and dikes must be removed from the unit or area of the unauthorized discharge. For remediation of media that have become contaminated by releases from a hazardous waste management unit or by other unauthorized discharge of hazardous waste, the contaminated media must be removed or decontaminated to cleanup levels specified in this section or such other lower levels necessary to be in conformance with current hazardous waste regulations.(c) For closure of nonhazardous industrial solid waste management units, response to unauthorized discharges of nonhazardous industrial solid waste, and the remediation of media that have become contaminated by discharges of nonhazardous industrial solid waste or other contaminants, all waste and waste residues, contaminated design and operating system components such as liners, leachate collection systems, and dikes, and contaminated media must be removed or decontaminated to cleanup levels specified in this section.(d) The concentration of a contaminant in contaminated media of concern such as groundwater, surface water, air, or soil shall not exceed cleanup levels as defined in §335.556 of this title (relating to Determination of Cleanup Levels for Risk Reduction Standard Number 2).(1) If the practical quantitation limit (PQL) and/or the background concentration, determined in a manner consistent with §335.554 of this title (relating to Attainment of Risk Reduction Standard Number 1) for a contaminant is greater than the cleanup level, the greater of the PQL or background shall be used for determining compliance with the requirements of this section.(2) Attainment of cleanup levels shall be demonstrated by collection and analysis of samples from the contaminated media of concern using the procedures of §335.553(d) of this title (relating to Required Information).(e) The person must prepare a document that he intends to use to fulfill the deed certification requirements of §335.560 of this title (relating to Post Closure Care and Deed Certification for Risk Reduction Standard Number 2) and include this document as part of the report of subsection (f) of this section.(f) The person must submit a report to the executive director in accordance with §335.553(a) of this title (relating to Required Information) that documents compliance with the requirements of this section. The executive director may require additional information or analysis, such as, but not limited to, consideration of cumulative health effects and cross-media contamination, prior to accepting a certification of closure or remediation under this performance standard. Upon approval of the report by the executive director, the person shall comply with the requirements of §335.560 of this title (relating to Post Closure Care and Deed Certification for Risk Reduction Standard Number 2).</content><note type="source"><p>Source Note: The provisions of this §335.555 adopted to be effective June 28, 1993, 18 TexReg 3814.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.556"><num value="335.556">§335.556</num><heading>Determination of Cleanup Levels for Risk Reduction Standard Number 2</heading><content>(a) For purposes of this risk reduction standard, cleanup levels for individual contaminants are represented by Texas or federal promulgated health-based standards, or, when these are not available or do not provide appropriate protection for human health or the environment, persons must develop cleanup levels based on procedures specified or referenced in this section for determining other numeric criteria, referred to as medium specific concentrations (MSCs), and are required to perform any necessary adjustments to these numeric criteria. The MSCs address a single contaminant in a medium and consider one or more exposure pathways, specifically, water ingestion (water MSC) and soil ingestion with inhalation of volatiles and particulates (soil MSC). Where a contaminant in one medium has the potential to contaminate another medium, defined as cross-media contamination, additional numeric criteria are developed as cleanup levels (e.g., the soil-to-ground water contaminant pathway). To determine cleanup levels for contaminated media of concern, persons must perform the evaluations of subsections (b)-(e) of this section.(b) In addition to the exposure pathways defined or referenced in this section, the person must evaluate other exposure pathways at or near the facility (e.g., dermal absorption, ingestion of contaminated fish, etc.) by which human populations (including sensitive subgroups) or environmental receptors (e.g., aquatic organisms, food-chain crops, etc.) are likely to be exposed to contaminants. If such evaluation indicates the need for additional remediation at the facility to adequately protect human health or environmental receptors, then the person shall develop numeric criteria by utilizing available guidance or scientific literature to serve in place of, or in addition to, cleanup levels determined pursuant to this section.(c) The person must determine the appropriate exposure factors from §335.557 of this title (relating to Criteria for Selection of Nonresidential Soil Requirements for Risk Reduction Standard Number 2).(d) The person must calculate MSCs in accordance with §335.558 of this title (relating to Medium Specific Concentrations for Risk Reduction Standard Number 2).(e) The person must determine any cross-media requirements and modifications to cleanup levels in accordance with §335.559 of this title (relating to Medium Specific Requirements and Adjustments for Risk Reduction Standard Number 2).</content><note type="source"><p>Source Note: The provisions of this §335.556 adopted to be effective June 28, 1993, 18 TexReg 3814.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.557"><num value="335.557">§335.557</num><heading>Criteria for Selection of Nonresidential Soil Requirements for Risk Reduction Standard Number 2</heading><content>All facilities or areas shall be subject to the residential soil requirements unless one of the conditions of paragraphs (1)-(3) of this section is satisfied for use of the nonresidential soil requirements.(1) For property located within the jurisdictional area of a zoning authority, persons may provide documentation that the property is zoned for commercial or industrial use.(2) For property not located within the jurisdictional area of a zoning authority, persons may provide documentation that the activities being conducted on the property satisfy the definition for nonresidential property (§335.553 of this title (relating to Definitions)).(3) For government-owned (local, state, or federal) property which does not satisfy either of the conditions of paragraph (1) or (2) of this section but does have nonresidential activities occurring on all or portions of the property, the person may provide documentation that access will be restricted such that the exposure assumptions remain valid for the duration of government control.</content><note type="source"><p>Source Note: The provisions of this §335.557 adopted to be effective June 28, 1993, 18 TexReg 3814.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.558"><num value="335.558">§335.558</num><heading>Medium Specific Concentrations for Risk Reduction Standard Number 2</heading><content>(a) Medium specific concentrations (MSCs) for ingestion of surface water and groundwater, and soil ingestion along with inhalation of volatiles and particulates are calculated according to the procedures specified in subsections (b)-(d) of this section based on residential exposure factors. MSCs are subject to additional numeric criteria and adjustments of §335.559 of this title (relating to Medium Specific Requirements and Adjustments for Risk Reduction Standard Number 2). The derivation of all equations is presented in §335.567 of this title (relating to Appendix I).(b) For a contaminant which is a carcinogen, the MSC is the concentration which represents an excess upper bound lifetime cancer target risk (TR) of 0.000001 (also expressed as one in one million) for Class A and B carcinogens, or 0.00001 (also expressed as one in 100,000) for Class C carcinogens due to continuous lifetime exposure as calculated using the equations and factors listed in paragraphs (1) and (2) of this subsection.(1) Water MSC for ingestion, in units of milligrams per liter (mg/L):(c) For a contaminant which is a systemic toxicant, the MSC is the concentration to which human populations (including sensitive subgroups) could be exposed by direct ingestion or inhalation on a daily basis without appreciable risk of deleterious effects during a lifetime. The MSC is calculated using the equations and factors listed in paragraphs (1) and (2) of this subsection.(1) Water MSC for ingestion in units of milligram per liter (mg/L):(d) Examples of unadjusted MSCs, standards, and criteria are listed in §335.568 of this title (relating to Appendix II. Examples of Medium Specific Concentrations, Standards, and Criteria for Health-Based Closure/Remediation). The commission will revise Appendix II on an annual basis to reflect newly promulgated standards and MSCs based on current toxicological data.</content><note type="source"><p>Source Note: The provisions of this §335.558 adopted to be effective June 28, 1993, 18 TexReg 3814.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.559"><num value="335.559">§335.559</num><heading>Medium Specific Requirements and Adjustments for Risk Reduction Standard Number 2</heading><content>(a) Numeric cleanup levels. The subsections (b) - (h) of this section specify requirements that can define or modify numeric cleanup levels such as MSCs or require non-health based criteria to be addressed. (b) Surface water. In determining the necessity for remediation at the facility, persons shall utilize Chapter 307 of this title (relating to Texas Surface Water Quality Standards) or, if those values are not available, Maximum Contaminant Levels (MCLs) promulgated under the Safe Drinking Water Act, or if MCLs are not available or appropriate, MSCs based upon human ingestion of the water. Any discharge or release into or adjacent to surface water, including storm water runoff, occurring during or after attainment of Risk Reduction Standard Number 2, shall be compliant with the Texas Surface Water Quality Standards of Chapter 307 of this title and may be subject to the permitting requirements of Chapter 305 of this title (relating to Consolidated Permits) or other authorization from the commission. (c) Air. In determining the necessity for remediation at the facility, persons shall observe limitations established by the National Ambient Air Quality Standards (NAAQS) and the National Emission Standards for Hazardous Air Pollutants (NESHAPS) as found in the 40 Code of Federal Regulations (CFR) Parts 50 and 61, respectively, and other applicable federal standards and guidelines of the EPA. Also, limitations established by the commission under the Texas Clean Air Act, the state implementation plan or other federal requirements must be observed. Permit requirements, limitations established by standard exemptions, or other requirements of the commission relative to atmospheric emissions and/or air quality may also apply. (d) Groundwater. The groundwater cleanup levels shall be determined by a consideration of the following. (1) For residential exposure, the concentration of a contaminant dissolved in groundwater must not exceed the MCL, if promulgated pursuant the Federal Safe Drinking Water Act, §141, otherwise the water MSC for ingestion determined pursuant to §335.556 of this title (relating to Determination of Cleanup Levels for Risk Reduction Standard Number 2). Phase-separated non-aqueous liquids released from the unit that is undergoing closure or remediation must be removed or decontaminated. (2) For nonresidential exposure, the concentration of a contaminant dissolved in groundwater must not exceed the MCL if promulgated pursuant to the Federal Safe Drinking Water Act, §141. If no MCL has been promulgated, the groundwater concentration shall not exceed the water MSC for ingestion determined pursuant to §335.556 of this title, which has been multiplied by a factor of 3.36 for carcinogens or 2.8 for systemic toxicants to account for lower ingestion rates associated with nonresidential worker exposure. Persons must be able to demonstrate that the quality of groundwater at the facility property boundary will be protective for residential exposure. Phase-separated non-aqueous liquids released from the unit that is undergoing closure or remediation must be removed or decontaminated to the extent practicable. (3) For residential and non-residential exposure, if the groundwater at the facility or area has a naturally occurring background total dissolved solids concentration greater than 10,000 milligrams per liter, the cleanup level for a contaminant dissolved in this groundwater determined pursuant to paragraph (1) or (2) of this subsection, as appropriate, may be adjusted by multiplying by 100. The resulting value becomes the maximum concentration for groundwater for residential and non-residential exposure, respectively. (4) The executive director may require the evaluation of additional exposure pathways or environmental receptors as part of the adjustment of paragraph (3) of this subsection. (e) Soil. For all situations, concentrations of contaminants in soils must be protective of surface water, air, and groundwater as specified in subsections (b) - (d) of this section. No soil remaining in place shall exhibit the hazardous waste characteristics of ignitability, corrosivity, or reactivity as defined in 40 CFR Part 261, Subpart C. The sum of concentrations of the volatile organic compounds in vapor phase in soil shall not exceed 1,000 parts per million by weight or volume, as measured by EPA Test Method 8015 or calculated by using soil concentrations and Henry's Law constants. (f) Residential soil requirements. In addition to the requirements of subsection (e) of this section, the concentration of a contaminant throughout the soil column (i.e., surface and subsurface soils) shall not exceed the lower of the soil MSC, based upon residential human ingestion of soil and inhalation of particulates and volatiles (as defined in the preceeding section), and the residential soil-to-groundwater cross-media protection concentration, a numeric value which is determined as follows: (1) a value which is 100 times the residential groundwater cleanup level determined by the procedures of subsection (d)(1) of this section. Examples of such values are listed in Appendix II; or (2) a concentration in soil that does not produce a leachate in excess of MCLs or MSCs for groundwater when subjected to the Synthetic Precipitation Leaching Procedure, Method 1312 of SW 846, Test Methods for Evaluating Solid Waste, United States Environmental Protection Agency. Other test methods that more accurately simulate conditions at the facility may be used in the demonstration in place of this method, subject to prior approval of the executive director. (g) Nonresidential soil requirements. Nonresidential soils shall conform to the requirements of subsection (e) of this section. The concentration of a contaminant in near-surface soils (i.e., within two feet of the land surface) shall not exceed the lower of the nonresidential soil MSC defined in paragraph (1) of this subsection, based upon worker ingestion of soil and inhalation of particulates and volatiles, and the nonresidential soil-to-groundwater cross-media protection concentration deficned in paragraph (2) of this subsection. In no event shall compliance be achieved with the surface soil criteria by applying two feet of clean soil onto the surface of a facility or area without prior approval from the executive director. The concentration of a contaminant in subsurface soils (i.e., greater than two feet in depth from the land surface) shall not exceed the nonresidential soil-to-groundwater cross-media protection concentration. (1) Nonresidential soil MSC. The MSC is calculated using the equations and factors listed in subparagraphs (A) and (B) of this paragraph. The chemical-specific factors SFo , SF i , RfDo , RfDi , and VF are the same as for the soil MSCs of the preceding section. The derivation of all equations is presented in Appendix I. (A) Carcinogenic effects equation, in units of milligram per kilogram (mg/kg): Attached Graphic(B) Systemic toxicant effects equation, in units of milligram per kilogram (mg/kg):Attached Graphic(2) Non-residential soil-to-ground water cross-media protection concentration. Persons must demonstrate that a contaminant in soil does not pose the potential for a future release of leachate in excess of the groundwater concentration considered to be protective for nonresidential worker exposure. Persons may make this demonstration by showing that a contaminant occurs in soil at less than the concentration described in either subparagraph (A) or (B) of this paragraph: (A) a concentration which is 100 times the nonresidential groundwater cleanup level determined by the procedures of subsection(d)(2) or (3), as applicable, of this section. (B) a concentration in soil that does not produce a leachate in excess of the groundwater concentration of this paragraph when subjected to the Synthetic Precipitation Leaching Procedure, Method 1312 of SW 846, Test Methods for Evaluating Solid Waste, U. S. Environmental Protection Agency. Other test methods that more accurately simulate conditions at the facility may be used in the demonstration in place of this method, subject to prior approval by the executive director. (h) Other criteria. For contaminants that do not exceed standards or criteria protective of human health and environmental receptors as determined by the procedures of this section but otherwise adversely impact environmental quality, or the public welfare and safety, or present objectionable characteristics (e.g., taste, odor, etc.), or make a natural resource unfit for use, other scientifically valid published criteria may be utilized such as but not limited to threshold limit values for air and secondary maximum contaminant levels for water.</content><note type="source"><p>Source Note: The provisions of this §335.559 adopted to be effective June 28, 1993, 18 TexReg 3814; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.560"><num value="335.560">§335.560</num><heading>Post-Closure Care and Deed Certification for Risk Reduction Standard Number 2</heading><content>(a) Provided that attainment of this risk reduction standard for the facility can be demonstrated to the executive director pursuant to §335.555 of this title (relating to Attainment of Risk Reduction Standard Number 2), the conditions of subsections (b) and (c) of this section apply.(b) The person is required to place in the county deed records of the county or counties in which such activities take place the information specified in paragraphs (1)-(4) of this subsection. The statements should be worded such that a lay person can easily understand them. An example format is provided in §335.569 of this title (relating to Appendix III). Proof of deed certification of the required information shall be provided to the executive director in writing no later than 90 days after acceptance of the report required by §335.555(f) of this title (relating to Attainment of Risk Reduction Standard Number 2).(1) A certification signed by the person, showing the person's full name and title, and stating that closure or remediation of the facility or area was carried out in accordance with a plan designed to meet §335.555 of this title (relating to Risk Reduction Standard Number 2), which mandates that the remedy be designed to eliminate substantial present and future risk, such that no post-closure care or engineering or institutional control measures are required to protect human health and the environment.(2) A metes and bounds description of the portion or portions of the tract of land on which closure or remediation of industrial solid waste, municipal hazardous waste, or contaminants was achieved.(3) For a facility that satisfies the conditions of §335.557 of this title (relating to Criteria for Selection of Nonresidential Soil Requirements for Risk Reduction Standard Number 2) for use of nonresidential soil requirements, a statement that current or future owners of the facility must undertake actions as necessary to protect human health and the environment in accordance with the rules of the commission.(4) A statement that information and documents concerning the closure or remediation of the facility or area are available for inspection upon request at the Texas Water Commission. The statement shall further describe the jurisdiction of the Texas Water Commission to review the establishment of the final cleanup criteria.(c) The person is released from post-closure care responsibilities upon acceptance by the executive director of the proof of deed certification required by subsection (b) of this section.</content><note type="source"><p>Source Note: The provisions of this §335.560 adopted to be effective June 28, 1993, 18 TexReg 3814.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.561"><num value="335.561">§335.561</num><heading>Attainment of Risk Reduction Standard Number 3: Closure/Remediation with Controls</heading><content>(a) Compliance with this standard is attained when, in the evaluation of the executive director, the person recommends the remedy which best achieves the requirements of subsections (b)-(d) of this section taking into consideration the evaluation factors of §335.562 of this title (relating to Remedy Evaluation Factors) and then following approval subsequently completes the remedy, submits the final report required by §335.553(b)(4) of this title (relating to Required Information), initiates any post-closure care required by §335.565 of this title (relating to Post-Closure Care Required for Risk Reduction Standard Number 3) and completes the deed recordation requirements of §335.566 of this title (relating to Deed Recordation for Risk Reduction Standard Number 3).(b) A remedy must be permanent or, if that is not practicable, achieve the highest degree of long-term effectiveness possible.(c) A remedy must be cost-effective in that it achieves the best balance between long-term effectiveness and cost for alternative remedies which meet the cleanup objectives for a facility.(d) A remedy must achieve media cleanup requirements as specified pursuant to §335.563 of this title (relating to Media Cleanup Requirements for Risk Reduction Standard Number 3).</content><note type="source"><p>Source Note: The provisions of this §335.561 adopted to be effective June 28, 1993, 18 TexReg 3814.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.562"><num value="335.562">§335.562</num><heading>Remedy Evaluation Factors for Risk Reduction Standard Number 3</heading><content>(a) General. For closure/remediation in accordance with Risk Reduction Standard Number 3, persons shall consider the evaluation factors set forth in subsections (b)-(g) of this section when evaluating the relative abilities and effectiveness of potential remedies to achieve the requirements for remedies described in §335.561 of this title (relating to Attainment of Risk Reduction Standard Number 3). A description of the evaluation for these factors for the proposed remedy shall be included in the corrective measure study prepared pursuant to §335.553(b)(3) of this title (relating to Required Information). Persons performing these evaluations shall submit to the executive director upon request such additional information as may reasonably be required to enable the executive director to determine whether such evaluation has been conducted in a manner compliant with this section.(b) Compliance with other laws and regulations. Remedies shall be evaluated to determine attainment of cleanup requirements for other Texas or federal environmental laws which are either legally applicable to the facility or that address problems or situations that are sufficiently similar to those encountered at the facility that their use is well suited to the facility.(c) Long-term effectiveness and permanence. Remedies shall be evaluated for long-term effectiveness. Factors that shall be considered in this evaluation include:(1) magnitude of risks remaining after completion of the closure or remedial action;(2) the type, degree, and duration of post-closure care required including, but not limited to, operation and maintenance, monitoring, inspections, and reports and their frequencies, or other activities which will be necessary to protect human health and the environment;(3) potential for exposure of humans and environmental receptors to contaminants remaining at the facility;(4) long-term reliability of any engineering and voluntary institutional controls; and(5) potential need for replacement of components of the remedy.(d) Reduction of toxicity, mobility, or volume. Remedies shall be evaluated to determine the degree to which treatment could be used to significantly and irreversibly reduce the toxicity, mobility, or volume of contaminants. Factors to be considered in this evaluation include:(1) the amount of contaminants that will be treated or destroyed;(2) the degree of expected reduction in toxicity, mobility, or volume;(3) the type, quantity, toxicity, and mobility of contaminants remaining after treatment; and(4) the degree to which the treatment is irreversible.(e) Short-term effectiveness. The short-term effects of remedies shall be evaluated considering the following:(1) short-term risks that might be posed to the community, workers, or the environment during implementation of the remedy and the effectiveness and reliability of protective measures; and(2) time until protection is achieved.(f) Implementability. The ease or difficulty of implementing the remedies shall be evaluated by considering the following types of factors:(1) degree of difficulty associated with constructing the remedy;(2) expected operational reliability of the remedy;(3) availability of necessary equipment and specialists;(4) available capacity and location of needed treatment, storage, and disposal services.(g) Cost. The types of costs that shall be evaluated include the following:(1) capital costs;(2) operation and maintenance costs; and(3) net present value of capital and operation and maintenance costs.</content><note type="source"><p>Source Note: The provisions of this §335.562 adopted to be effective June 28, 1993, 18 TexReg 3814.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.563"><num value="335.563">§335.563</num><heading>Media Cleanup Requirements for Risk Reduction Standard Number 3</heading><content>(a) General. For closure/remediation in accordance with Risk Reduction Standard Number 3, persons shall propose media cleanup levels in accordance with the conditions set forth in subsections (b) - (j) of this section.(b) Carcinogens. For known or suspected carcinogens, media cleanup levels shall be established at concentrations which represent an excess upperbound lifetime risk of between one in 10,000 and one in one million. The executive director will use one in one million as a goal in establishing such concentration limits. The cumulative excess risk to exposed populations (including sensitive subgroups) shall not be greater than one in 10,000.(c) Systemic toxicants. For systemic toxicants, media cleanup levels shall represent concentrations to which the human population (including sensitive subgroups) could be exposed on a daily basis without appreciable risk of deleterious effect during a lifetime or part of a lifetime and where:(1) the hazard quotient, which is the ratio of a single systemic toxicant exposure level for a specified time period to a reference dose for that systemic toxicant derived from the same time period, shall not exceed one; and(2) the hazard index shall not exceed one. The hazard index is the sum of the hazard quotients for a single or multiple systemic toxicants which affect the same target organ or act by the same method of toxicity and act through a single or multiple media exposure pathways.(d) Additional considerations. In establishing media cleanup levels pursuant to subsections (b) and (c) of this section, the executive director may consider and may direct persons who submit plans or reports in accordance with §335.553(b) of this title (relating to Required Information) to address the following:(1) multiple contaminants in a medium;(2) exposure to multiple contaminated media;(3) reasonable expected future exposure conditions at the facility; and(4) the technical limitations, effectiveness, practicability, or other relevant features of available remedies.(e) Standard exposure factors. In determining media cleanup levels pursuant to subsections (b) and (c) of this section, persons shall use the standard exposure factors for residential use of the facility as set forward in Table 1 (located in §335.553 of this title) unless the person documents to the satisfaction of the executive director that:(1) site-specific data warrant deviation from the standard exposure factors; or(2) a land use other than residential is more appropriate based on:(A) historical, current, and probable future land use; and(B) effectiveness of institutional or legal controls placed on the future use of the land.(f) Air. Media cleanup levels for air will be established to meet the lowest of the values determined by the requirements of paragraphs (1) - (3) of this subsection.(1) Concentrations of contaminants in air that emanate from a facility, area of soil contamination, or plume of contaminated groundwater shall not exceed:(A) National Ambient Air Quality Standards (NAAQS), National Emission Standards for Hazardous Air Pollutants (NESHPAS) (as found in 40 Code of Federal Regulation Parts 50 and 61 respectively) and other applicable federal standards and guidelines of the Environmental Protection Agency; and(B) concentrations established by the commission under the Texas Clean Air Act, the state implementation plan, or other federal requirements. Permit requirements, limitations established by standard exemptions, or other requirements relative to atmospheric emissions and/or air quality may also apply.(2) For residential exposure conditions, concentrations of contaminants in air that emanate from a facility, area of soil contamination, or plume of contaminated ground water shall not exceed concentrations that satisfy subsections (b) - (e) of this section at exposure points located both within the contaminated area and at the property boundary.(3) For nonresidential exposure conditions, concentrations of contaminants in air that emanate from a facility, area of soil contamination, or plume of contaminated groundwater shall not exceed either OSHA permissible exposure limits, threshold limit values or other criteria applicable to an industrial exposure setting within the facility boundaries or concentrations that satisfy subsections (b) - (e) of this section at the property boundary.(g) Surface water. In determining the necessity for remediation at the facility, persons shall utilize Chapter 307 of this title (relating to Texas Surface Water Quality Standards) or, if those values are not available, maximum contaminant levels (MCLs) promulgated under the Safe Drinking Water Act or, if MCLs are not available or appropriate, values calculated pursuant to subsections (b) - (e) of this section based upon human ingestion of the water or other site-specific exposure pathway. Any discharge or release into or adjacent to surface water, including storm water runoff, occurring during or after attainment of Risk Reduction Standard Number 3, shall be compliant with Chapter 307 of this title and may be subject to the permitting requirements of Chapter 305 of this title (relating to Consolidated Permits) or other authorization from the commission.(h) Groundwater. Media cleanup levels for groundwater that is a current or potential source of drinking water as defined in paragraph (1) of this subsection shall not exceed MCLs promulgated under the Safe Drinking Water Act or, if MCLs are not available, values calculated according to subsections (b) - (e) of this section based upon human ingestion of the water. Cleanup levels for groundwater may be subject to the modifications of paragraphs (2) - (4) of this subsection.(1) Groundwater that has a background total dissolved solids (TDS) content less than or equal to 10,000 milligrams per liter (mg/L) and that occurs within a geologic zone that is sufficiently permeable to transmit water to a pumping well in usable quantities shall be considered a current or potential source of drinking water for the purpose of determining cleanup levels.(2) The cleanup levels shall be achieved throughout the plume of contaminated groundwater, with the exception of the circumstances described in subparagraphs (A) - (C) of this paragraph:(A) when alternate concentration limits of §335.160(b) of this title (relating to Alternate Concentration Limits) have been approved in a permit issued by the commission for a hazardous waste management facility;(B) when the selected remedy calls for waste to be left in place and when appropriate control measures are installed or operated, the executive director may authorize the zone underlying the area encompassing the original source(s) of release to be excluded from this requirement;(C) when the person documents to the executive director's satisfaction pursuant to subsection (e) of this section that a future land use other than residential is appropriate for the facility or area and further demonstrates that institutional or legal controls will effectively prevent use of the contaminated groundwater, the extent of plume remediation may be determined in a manner consistent with §335.160(b) of this title.(3) The executive director may determine that remediation of groundwater to the extent required in paragraphs (1) or (2) of this subsection is not necessary if the person demonstrates to the executive director's satisfaction that:(A) the contaminant is present in groundwater that is not a current or potential source of drinking water and the contaminated groundwater is not hydraulically connected with and is not likely to migrate to either surface water or to groundwater that is a current or potential source of drinking water; or(B) restoration of the groundwater to these levels is technically impracticable.(4) If a determination is made pursuant to paragraph (3) of this subsection, the executive director may require any alternative measures or cleanup levels that are necessary to protect human health and the environment. At a minimum, for all cases described in this subsection, phase-separated non-aqueous liquids shall be removed from groundwater zones to the extent practicable.(i) Soil. Concentrations of contaminants in soil shall not exceed the following values:(1) the values calculated pursuant to subsections (b) - (d) of this section based upon human ingestion of the soils at all points where direct contact exposure to the soils may occur; and(2) values which will allow the air, surface water, and groundwater cleanup levels specified in subsections (f) - (h) of this section, respectively, to be maintained over time taking into account the effects of engineering controls.(A) Such determinations shall be based on sound scientific principles including fate and transport evaluation of contaminant migration. Procedures and conclusions shall be documented to the satisfaction of the executive director.(B) The executive director may require the evaluation of additional migration pathways beyond those listed in this section if determined necessary. Such additional pathways may include but are not limited to, food chain contamination, impairment of soil for agricultural purposes, phytotoxicity, accumulations of contaminants in sediment of surface water bodies, or other impairments of natural resources, land, or water use.(j) Other adjustments. Cleanup levels may be adjusted according to paragraphs (1) - (3) of this subsection.(1) If the practical quantitation limit (PQL) or the background concentration (represented by results of analyses of samples taken from media that are not affected by waste management or industrial activities) for a contaminant is greater than the cleanup level determined by procedures of this section, then the greater of the PQL or background shall become the cleanup level.(2) Other scientifically valid published criteria, such as, but not limited to threshold limit values for air and secondary maximum contaminant levels for water, shall be utilized as cleanup levels for contaminants for which the procedures of this section are not appropriate (e.g., mixtures or substances that do not have toxicological data) or that do not exceed standards or criteria protective of human health as determined by the procedures of this section but otherwise adversely impact environmental quality, or the public welfare and safety, or present objectionable characteristics (e.g., taste, odor, etc.), or make a natural resource unfit for use.(3) More stringent cleanup levels may be established for a facility than are specified in this section if, by utilizing available guidance or scientific literature, the executive director determines that it is necessary to protect environmental receptors.</content><note type="source"><p>Source Note: The provisions of this §335.563 adopted to be effective June 28, 1993, 18 TexReg 3814; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.564"><num value="335.564">§335.564</num><heading>Post-Closure Care Not Required for Risk Reduction Standard Number 3</heading><content>In cases under Risk Reduction Standard Number 3 where the executive director determines that neither engineering nor institutional control measures are required to protect human health and the environment, the person is released from post-closure care responsibilities but is required to deed record the facility in accordance with §335.566 of this title (relating to Deed Recordation for Risk Reduction Standard Number 3).</content><note type="source"><p>Source Note: The provisions of this §335.564 adopted to be effective June 28, 1993, 18 TexReg 3814.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.565"><num value="335.565">§335.565</num><heading>Post-Closure Care Required for Risk Reduction Standard Number 3</heading><content>In cases under Risk Reduction Standard Number 3 where the executive director determines that either engineering or institutional control measures are required to protect human health and the environment, the person shall comply with the requirements of paragraphs (1) and (2) of this section, as applicable, and deed record the facility in accordance with §335.566 of this title (relating to Deed Recordation for Risk Reduction Standard Number 3):(1) carry out the post-closure requirements as evaluated and approved by the remedy evaluation process described in §335.562 of this title (relating to Remedy Evaluation Factors);(2) for hazardous waste storage, processing, or disposal facilities, the person must also satisfy the applicable requirements of Subchapter E and F of this chapter (relating to Interim Standards for Hazardous Waste Storage, Processing, or Disposal Facilities; and Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities, respectively).</content><note type="source"><p>Source Note: The provisions of this §335.565 adopted to be effective June 28, 1993, 18 TexReg 3814.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.566"><num value="335.566">§335.566</num><heading>Deed Recordation for Risk Reduction Standard Number 3</heading><content>(a) Within 90 days after acceptance by the executive director of the final report referenced in §335.561(a) of this title (relating to Attainment of Risk Reduction Standard Number 3), the person must record in the county deed records of the county or counties in which such activities take place the information specified in subsections (b)-(e) of this section and submit written proof of such recordation to the executive director. The statements should be worded such that a lay person can easily understand them. An example format is provided in §335.569 of this title (relating to Appendix III).(b) A certification, signed by the person, showing the person's full name and title, and stating: that remediation of the facility or area was carried out in accordance with a plan designed to meet §335.561 of this title (relating to Risk Reduction Standard Number 3), which mandates that the remedy be designed to eliminate or reduce to the maximum extent practicable substantial present and future risk; and whether continued post-closure care or engineering or institutional control measures (post-closure measures) are required to protect human health and the environment together with a description of any required post-closure measures.(c) A description of any institutional or legal controls placed by the person on the future use of the property. The notice shall indicate that the current or future owner must undertake actions as necessary to protect human health and the environment in accordance with the rules of the commission.(d) A metes and bounds description of the portion or portions of the tract of land on which closure or remediation of industrial solid waste, municipal hazardous waste, or contaminants was achieved.(e) A statement that information and documents concerning the closure or remediation of the facility or area are available for inspection upon request at the Texas Water Commission. The statement shall further describe the jurisdiction of the Texas Water Commission to review the establishment of the final cleanup criteria.</content><note type="source"><p>Source Note: The provisions of this §335.566 adopted to be effective June 28, 1993, 18 TexReg 3814.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.567"><num value="335.567">§335.567</num><heading>Appendix I</heading><content>Derivation of reduced equations for calculation of medium specific concentrations of Risk Reduction Standard Number 2.Attached GraphicAttached GraphicAttached GraphicAttached GraphicReference: U.S. EPA, OSWER Directive 9285.7-01B, December 13, 1991, Human Health Evaluation Manual, Part B: "Development of Risk-based Preliminary Remediation Goals."</content><note type="source"><p>Source Note: The provisions of this §335.567 adopted to be effective June 28, 1993, 18 TexReg 3814.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.568"><num value="335.568">§335.568</num><heading>Appendix II</heading><content>Examples of medium-specific concentrations (MSC), standards, and criteria for health-based closure/remediation (see §335.558 of this title (relating to Medium Specific Concentration of Risk Reduction Standards Number 2.))Attached Graphic(1) Concentrations for constituents are expressed in scientific notation. Examples 2.20E-00 = 2.2; 2.20E+02 = 220; and 2.20E-01 = 0.22. (2) The development of final cleanup levels may involve other factors as described in this subchapter, such as cumulative health effects, that are not considered in this chapter.(3) Groundwater concentrations are based on maximum contaminant levels (MCLs) or the formula and parameters for residential use of groundwater which are contained in §335.567 of this title (relating to Appendix I). For nonresidential exposure conditions, the groundwater concentrations are calculated using the procedures of §335.559(d)(2) or (3) of this title (relating to Medium Specific Requirements and Adjustments for Risk Reduction Standard Number 2).(4) For some constituents, the practical quantitation limit (PQL) may be the appropriate groundwater MSC as described in §335.555(d)(1) of this title (relating to Attainment of Risk Reduction Standard Number 2: Closure/Remediation to Health-Based Standards and Criteria). See 40 Code of Federal Regulations Part 264 (Appendix IX) for a list of groundwater PQLs. (5) Residential soil groundwater protection concentrations are based on a multiplication factor of 100 times the groundwater MSC. (6) Industrial soil groundwater protection concentrations are based on a multiplication factor of 100 times the MCL or, when an MCL is not available, a factor of 100 times the groundwater concentration calculated using the formula and parameters which are contained in §335.559(d)(2) or (3) of this title (relating to Medium Specific Requirements and Adjustments for Risk Reduction Standard Number 2).(7) Residential soil concentrations (maximum) are calculated using the formula and parameters for residential land use which are contained in §335.567 of this title (relating to Appendix I). The person must also demonstrate that groundwater is protected and that no nuisance conditions exist (§335.559(a)-(h) of this title (relating to Medium Specific Requirements and Adjustments for Risk Reduction Standard Number 2)).(8) Industrial soil concentrations (maximum) are calculated using the formula and parameters for industrial land use which are contained in §335.567 of this title (relating to Appendix I). The person must also demonstrate that groundwater is protected and that no nuisance conditions exist (§335.559(a)-(h) of this title (relating to Medium Specific Requirements and Adjustments for Risk Reduction Standard Number 2)).(9) The final, proposed or listed MCL, from the Federal Safe Drinking Water Act, §146. For lead, the action level for lead in drinking water is used as the MSC.(10) All concentrations were calculated using data from the Integrated Risk Information System (IRIS) Chemical Files, or data from the Health Effects Assessment Summary Tables (HEAST), developed by the United States Environmental Protection Agency, Office of Research and Development and Office of Health and Environmental Assessment, Washington, D.C. 20460. The toxicity information, and the MSCs, will be updated as new information becomes available. (11) In some cases, an oral reference dose (RFD) or an oral slope factor (SF) was substituted for the inhalation RFD or inhalation SF in calculating MSC. This MSC will be updated when this information becomes available. (12) The MSCs calculated for this compound are based on noncarcinogenic effects. The following formula was used for calculating the soil MSCs: MSC = [(oral RFD)(Body Weight)(ED)(365 days/yr)]/[(EF)(ED)(IR)(CF)]. For residential soils, the following exposure factors were used: BW = 15 Kg; ED = 5 years; EF = 350 days/year; IR = 200 mg/day. For industrial soils, the following exposure factors were used: BW = 70 Kg; ED = 25 years; EF = 250 days/year; IR = 100 mg/day. In both cases, the CF is 0.000001 kg/mg. When oral slope factors become available, these MSCs will be revised. (13) As described in §335.559(e) of this title (relating to Medium Specific Requirements and Adjustments for Risk Reduction Standard Number 2), the sum of concentrations of the volatile organic compounds in vapor phase in soil shall not exceed 1,000 ppm by weight or volume. (14) The MSC for lead in soil is based on values calculated by the United States EPA using the Lead Uptake/Biokinetic Model, Version 0.4, which has been developed by the United States EPA Office of Health and Environmental Assessment. (15) Soil MSCs for polychlorinated biphenyls are based upon the 4/2/87 TSCA regulations, 40 Code of Federal Regulations §761.125 (see 52 FedReg 10688).(16) NHHB = Not Human Health Based. The SAI-Ind MSC for this compound exceeds 10e+6 ppm, which means it is not toxic to humans when exposed to soils under these assumptions. Persons must consider other criteria of §335.559 of this title (relating to Medium Specific Requirements and Adjustments for Risk Reduction Standards Number 2) to develop numeric cleanup values.</content><note type="source"><p>Source Note: The provisions of this §335.568 adopted to be effective June 28, 1993, 18 TexReg 3814.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scS/s335.569"><num value="335.569">§335.569</num><heading>Appendix III</heading><content>For the purposes of this subchapter, the following is the model deed certification language. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §335.569 adopted to be effective June 28, 1993, 18 TexReg 3814; amended to be effective November 15, 2001, 26 TexReg 9135.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scT"><num value="T">SUBCHAPTER T</num><heading>PERMITTING STANDARDS FOR OWNERS AND OPERATORS OF COMMERCIAL INDUSTRIAL NONHAZARDOUS WASTE LANDFILL FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.580"><num value="335.580">§335.580</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to establish minimum standards for facilities subject to this subchapter under subsection (b) of this section. Nothing in this subchapter shall be construed to restrict the commission's authority to implement §335.4 of this title (relating to General Prohibitions) and the provisions of Texas Water Code, Chapter 26.(b) This subchapter applies to the following types of facilities at which nonhazardous industrial waste is stored, processed, or disposed:(1) any new commercial industrial nonhazardous waste landfill facility; and(2) any existing commercial industrial nonhazardous waste landfill facility with an areal or capacity expansion of the commercial industrial nonhazardous waste landfill.(c) This subchapter does not apply to municipal solid waste facilities at which nonhazardous industrial waste is managed.</content><note type="source"><p>Source Note: The provisions of this §335.580 adopted to be effective March 21, 2004, 29 TexReg 2888.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.581"><num value="335.581">§335.581</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly requires otherwise.(1) Commercial industrial nonhazardous waste landfill (CINWL) facility--A landfill facility that accepts, for disposal and for a charge, nonhazardous industrial waste. This definition does not apply to municipal solid waste facilities at which nonhazardous industrial waste is managed in accordance with Chapter 330 of this title (relating to Municipal Solid Waste).(2) New commercial industrial nonhazardous waste landfill (CINWL) facility--A CINWL facility which is not an "existing CINWL facility" and for which an application was filed on or after June 20, 2003, or for which an application was pending on June 20, 2003.(3) Existing commercial industrial nonhazardous waste landfill (CINWL) facility--A CINWL facility for which a permit was issued prior to June 20, 2003.(4) Regional aquifer--Any aquifer identified as a major or minor aquifer by the Texas Water Development Board.</content><note type="source"><p>Source Note: The provisions of this §335.581 adopted to be effective March 21, 2004, 29 TexReg 2888.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.582"><num value="335.582">§335.582</num><heading>Prohibited Wastes</heading><content>The following wastes shall not be disposed:(1) municipal solid waste, as defined in §330.3 of this title (relating to Definitions), but only in amounts such that the total volume of municipal solid waste accepted does not exceed 20%, unless specifically authorized by the facility permit, of the total amount of waste (not including municipal solid waste) accepted during the current or previous year. The amount of waste may be determined by volume or weight, but the same unit of measure shall be used for each year, unless a variance is authorized by the executive director;(2) hazardous waste, as defined in §335.1 of this title (relating to Definitions), except as provided in §335.590(25) of this title (relating to Operational and Design Standards);(3) polychlorinated biphenyl compounds (PCBs), as defined by the United States Environmental Protection Agency (EPA) in regulations issued pursuant to the Toxic Substance Control Act under Title 40 Code of Federal Regulations (CFR) Part 761 unless authorized by the EPA;(4) putrescible waste, as defined in §330.3 of this title, unless the requirements of §330.151 of this title (relating to Disease Vector Control) and §330.545 of this title (relating to Airport Safety), and this subchapter are met;(5) explosive material, as defined by the Department of Transportation in 49 CFR Part 173;(6) radioactive or nuclear materials regulated under Texas Health and Safety Code, Chapter 401, or rules of the commission, the Texas Department of State Health Services, the Texas Railroad Commission, or any other applicable rules of state or federal authorities;(7) medical waste, as defined in §330.3 of this title;(8) liquid waste, as defined in §330.3 of this title;(9) wastes identified in §330.15(e)(1) - (5) of this title (relating to General Prohibitions), except as allowed under that section; and(10) wastes identified in §330.171(c)(3) and (4) of this title (relating to Disposal of Special Wastes), except as allowed under that section.</content><note type="source"><p>Source Note: The provisions of this §335.582 adopted to be effective March 21, 2004, 29 TexReg 2888; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.583"><num value="335.583">§335.583</num><heading>Permit Procedures</heading><content>(a) The following requirements applicable to municipal solid waste facilities apply to permit applications for facilities subject to this subchapter:(1) §330.53 of this title (relating to Pre-application Review);(2) §330.57 of this title (relating to Permit and Registration Applications for Municipal Solid Waste Facilities), except that the references and requirements relating to a land-use only public hearing do not apply;(3) §330.59 of this title (relating to Contents of Part I of the Application) except §330.63(j) of this title, concerning cost estimate for closure and post-closure care shall not apply;(4) §330.61 of this title (relating to Contents of Part II of the Application);(5) §330.63 of this title (relating to Contents of Part III of the Application), except that the requirement in §330.61(b)(1)(A) of this title, concerning an estimate of the population or population equivalent served at the site does not apply;(6) §330.65 of this title (relating to Contents of Part IV of the Application);(7) §330.219(a) of this title (relating to Recordkeeping and Reporting Requirements);(8) §330.67 of this title (relating to Property Rights); and(9) §330.73 of this title (relating to Additional Standard Permit and Registration Conditions for Municipal Solid Waste Facilities), except that the reference to "§305.70 of this title (relating to Municipal Solid Waste Permit and Registration Modifications)" does not apply and "§305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee)" applies instead.(b) In addition to the requirements in subsection (a) of this section, the permit application must include information to demonstrate compliance with the following requirements:(1) §335.584(b) of this title (relating to Location Restrictions);(2) §335.585 of this title (relating to General Inspection Requirements);(3) §335.586 of this title (relating to Personnel Training);(4) §335.587 of this title (relating to Waste Analysis);(5) §335.588 of this title (relating to General Requirements for Ignitable, Reactive, or Incompatible Wastes); and(6) §335.589 of this title (relating to Contingency Plan).</content><note type="source"><p>Source Note: The provisions of this §335.583 adopted to be effective March 21, 2004, 29 TexReg 2888; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.584"><num value="335.584">§335.584</num><heading>Location Restrictions</heading><content>(a) The following location restrictions applicable to municipal solid waste facilities apply to facilities subject to this subchapter: (1) §330.547 of this title (relating to Floodplains); (2) §330.553 of this title (relating to Wetlands); (3) §330.555 of this title (relating to Fault Areas); (4) §330.557 of this title (relating to Seismic Impact Zones); and (5) §330.559 of this title (relating to Unstable Areas). (b) In addition to the location restrictions in subsection (a) of this section, a new commercial industrial nonhazardous waste landfill facility, or an areal or capacity expansion of an existing commercial industrial nonhazardous waste landfill unit, may not be located: (1) in areas where underlying soil unit(s) within five feet of the base of the containment structure, which includes the sides and bottom of the containment structure, have a Unified Soil Classification of GW (well-graded gravel), GP (poorly-graded gravel), GM (silty gravel), GC (clayey gravel), SW (well-graded sand), SP (poorly-graded sand), or SM (silty sand), or a hydraulic conductivity greater than 1 x 10-5 cm/sec, unless: (A) it is in an area where the average annual evaporation exceeds average annual rainfall by more than 40 inches; or (B) the soil unit is not sufficiently thick and laterally continuous to provide a significant pathway for waste migration; (2) in areas overlying a regional aquifer unless the regional aquifer is separated from the base of the containment structure, which includes the sides and bottom of the containment structure, by a minimum of ten feet of material with a hydraulic conductivity towards the aquifer not greater than 10-7 centimeters per second (cm/sec), or a thicker interval of more permeable material that provides equivalent or greater retardation to pollutant migration; (3) on a barrier island or peninsula; or (4) within 1,000 feet of an area subject to active coastal shoreline erosion, if the area is protected by a barrier island or peninsula, unless the design, construction, and operational features of the facility will prevent adverse effects resulting from storm surge and erosion or scouring by water. On coastal shorelines that are subject to active shoreline erosion and which are unprotected by a barrier island or peninsula, a separation distance from the shoreline to the facility must be at least 5,000 feet unless the design, construction, and operational features of the facility will prevent adverse effects resulting from storm surge and erosion or scouring by water.</content><note type="source"><p>Source Note: The provisions of this §335.584 adopted to be effective March 21, 2004, 29 TexReg 2888; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.585"><num value="335.585">§335.585</num><heading>General Inspection Requirements</heading><content>(a) The owner or operator must inspect the facility for compliance with the site operating plan.(b) The owner or operator must develop and follow a written schedule for inspecting monitoring equipment, safety and emergency equipment, and operating and structural equipment (such as dikes and sump pumps) that are important to preventing, detecting, or responding to environmental or human health hazards.(1) The owner or operator must maintain the schedule at the facility.(2) The schedule must identify the types of problems (e.g., malfunctions or deterioration) that are to be looked for during the inspection (e.g., inoperative sump pump, leaking fitting, or eroding dike).(3) The frequency of inspection may vary for the items on the schedule. However, the frequency should be based on the rate of deterioration of the equipments and the probability of an environmental or human health incident if the deterioration, malfunction, or any operator error goes undetected between inspections. Areas subject to spills, such as loading and unloading areas, must be inspected daily when in use. At a minimum, the inspection schedule must include the items and frequencies required in 40 Code of Federal Regulations §264.303 for hazardous waste landfills.(c) The owner or operator must remedy any deterioration or malfunction of equipment or structures that the inspection reveals on a schedule that ensures that the problem does not lead to an environmental or human health hazard. Where a hazard is imminent or has already occurred, remedial action must be taken immediately.(d) The owner or operator must record inspections in an inspection log or summary, and retain these records in accordance with the requirements of §335.113(d) of this title (relating to Reporting of Emergency Situations by Emergency Coordinator). At a minimum, these records must include the date and time of the inspection, the name of the inspector, a notation of the observations made, and the date and nature of any repairs or other remedial actions.</content><note type="source"><p>Source Note: The provisions of this §335.585 adopted to be effective March 21, 2004, 29 TexReg 2888.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.586"><num value="335.586">§335.586</num><heading>Personnel Training</heading><content>(a) Facility personnel must successfully complete a program of classroom instruction or on-the-job training that teaches them to perform their duties in a way that ensures the facility's compliance with the requirements of this subchapter. The owner or operator must ensure that this program includes all the elements described in the document required under subsection (d)(3) of this section.(1) This program must be directed by a person trained in waste management procedures, and must include instruction that teaches facility personnel waste management procedures (including contingency plan implementation) relevant to the positions in which they are employed.(2) At a minimum, the training program must be designed to ensure that facility personnel are able to respond effectively to emergencies by familiarizing them with emergency procedures, emergency equipment, and emergency systems, including, where applicable:(A) procedures for using, inspecting, repairing, and replacing facility emergency and monitoring equipment;(B) communications or alarm systems;(C) response to fires or explosions;(D) response to ground-water contamination incidents; and(E) shutdown of operations.(b) Facility personnel must successfully complete the program required in subsection (a) of this section within six months after the effective date of these regulations or six months after the date of their employment or assignment to a facility, or to a new position at a facility, whichever is later. Employees hired after the effective date of these regulations must not work in unsupervised positions until they have completed the training requirements of subsection (a) of this section.(c) Facility personnel must take part in an annual review of the initial training required in subsection (a) of this section.(d) The owner or operator must maintain the following documents and records at the facility:(1) the job title for each position at the facility related to waste management, and the name of the employee filling each job;(2) a written job description for each position listed under paragraph (1) of this subsection. This description may be consistent in its degree of specificity with descriptions for other similar positions in the same company location or bargaining unit, but must include the requisite skill, education, or other qualifications, and duties of employees assigned to each position;(3) a written description of the type and amount of both introductory and continuing training that will be given to each person filling a position listed under paragraph (1) of this subsection; and(4) records that document that the training or job experience required under subsections (a) - (c) of this section has been given to, and completed by, facility personnel.(e) Training records on current personnel must be kept until closure of the facility and training records on former employees must be kept for at least three years from the date the employee last worked at the facility. Personnel training records may accompany personnel transferred within the same company.</content><note type="source"><p>Source Note: The provisions of this §335.586 adopted to be effective March 21, 2004, 29 TexReg 2888.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.587"><num value="335.587">§335.587</num><heading>Waste Analysis</heading><content>(a) The following waste analysis requirements apply to owners and operators of facilities subject to this subchapter.(1) Before treating, storing, or disposing of any waste, the owner or operator shall obtain a chemical and physical analysis of a representative sample of the waste. At a minimum, the analysis must contain all the information that must be known to treat, store, or dispose of the waste in accordance with this subchapter.(A) A waste generator's records of analyses performed on the waste before the effective date of these regulations, or studies conducted on waste generated from processes similar to that which generated the waste to be managed at the facility, may be included in the data base required to comply with this paragraph.(B) The owner or operator may arrange for the generator of the waste to supply the information required by this paragraph. If the generator does not supply the information, and the owner or operator chooses to accept a waste, the owner or operator is responsible for obtaining the information required to comply with this section.(2) The analysis may include data developed under Subchapter R of this chapter (relating to Waste Classification), and existing published or documented data on a waste or on such waste generated from similar processes.(3) The analysis must be repeated as necessary to ensure that it is accurate and up-to-date. At a minimum, the analysis must be repeated:(A) when the owner or operator is notified, or has reason to believe, that the process or operation generating the waste has changed; and(B) when the results of the inspection required in paragraph (4) of this subsection indicate that the waste received at the facility does not match the waste designated on the accompanying manifest or shipping paper.(4) The owner or operator shall inspect and, if necessary, analyze each waste received at the facility to determine whether it matches the identity of the waste specified on the accompanying manifest or shipping paper.(b) The owner or operator shall develop and follow a written waste analysis plan that describes the procedures which the owner or operator will carry out to comply with subsection (a) of this section. This plan must be submitted with the permit application. The owner or operator shall keep this plan at the facility. At a minimum, the plan must specify:(1) the parameters for which each waste will be analyzed and the rationale for the selection of these parameters (i.e., how analysis for these parameters will provide sufficient information on the waste's properties to comply with subsection (a) of this section);(2) the test methods which will be used to test for these parameters; and(3) the sampling method that will be used to obtain a representative sample of the waste to be analyzed. A representative sample may be obtained using either:(A) one of the sampling methods described in Appendix I of Title 40 Code of Federal Regulations Part 261; or(B) an equivalent sampling method approved by the executive director;(4) the frequency with which the initial analysis of the waste will be reviewed or repeated to ensure that the analysis is accurate and up-to-date;(5) the waste analyses that waste generators have agreed to supply; and(6) where applicable, the methods that will be used to meet any additional waste analysis requirements in §335.588 of this title (relating to General Requirements for Ignitable, Reactive, or Incompatible Wastes).</content><note type="source"><p>Source Note: The provisions of this §335.587 adopted to be effective March 21, 2004, 29 TexReg 2888.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.588"><num value="335.588">§335.588</num><heading>General Requirements for Ignitable, Reactive, or Incompatible Wastes</heading><content>(a) The owner or operator of a facility subject to this subchapter shall take precautions to prevent accidental ignition or reaction of wastes that are ignitable or reactive as defined in §335.505 of this title (relating to Class 1 Waste Determination). This waste must be separated and protected from sources of ignition or reaction including, but not limited to: open flames, smoking, cutting and welding, hot surfaces, frictional heat, sparks (static, electrical, or mechanical), spontaneous ignition (e.g., from heat-producing chemical reactions), and radiant heat. While ignitable or reactive waste is being handled, the owner or operator shall confine smoking and open flame to specially designated locations. "No Smoking" signs must be conspicuously placed wherever there is a hazard from ignitable or reactive waste.(b) The owner or operator of a facility that treats, stores or disposes ignitable or reactive waste, or mixes incompatible waste or incompatible wastes and other materials, shall take precautions to prevent reactions which:(1) generate extreme heat or pressure, fire or explosions, or violent reactions;(2) produce uncontrolled toxic mists, fumes, dusts, or gases in sufficient quantities to threaten human health or the environment;(3) produce uncontrolled flammable fumes or gases in sufficient quantities to pose a risk of fire or explosions;(4) damage the structural integrity of the device or facility; or(5) through other like means threaten human health or the environment.(c) When required to comply with subsection (a) or (b) of this section, the owner or operator shall document that compliance. This documentation may be based on references to published scientific or engineering literature, data from trial tests (e.g., bench scale or pilot scale tests), waste analyses as specified in §335.587 of this title (relating to Waste Analysis), or the results of the treatment of similar wastes by similar treatment processes and under similar operating conditions.</content><note type="source"><p>Source Note: The provisions of this §335.588 adopted to be effective March 21, 2004, 29 TexReg 2888.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.589"><num value="335.589">§335.589</num><heading>Contingency Plan</heading><content>(a) Purpose and implementation of contingency plan.(1) Each owner or operator of a facility subject to this subchapter shall have a contingency plan for the facility. The contingency plan must be designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non-sudden release of waste or constituents of such waste to air, soil, or surface water. The contingency plan must be submitted to the executive director with the permit application and, after modification or approval, will become a condition of any permit issued.(2) The provisions of the plan must be carried out immediately whenever there is a fire, explosion, or release of waste or constituents of such waste that could threaten human health or the environment.(b) Content of contingency plan.(1) The contingency plan must describe the actions facility personnel must take to comply with subsections (a) and (f) of this section in response to fires, explosions, or any unplanned sudden or non-sudden release of waste or constituents of such waste to air, soil, or surface water at the facility.(2) If the owner or operator manages waste in tanks and has already prepared a Spill Prevention, Control, and Countermeasures (SPCC) Plan in accordance with Title 40 Code of Federal Regulations (CFR) Part 112, 40 CFR Part 1510, or some other emergency or contingency plan, the owner or operator need only amend that plan to incorporate waste management provisions that are sufficient to comply with the requirements of this part.(3) The plan must describe arrangements agreed to by local police departments, fire departments, hospitals, contractors, and state and local emergency response teams to coordinate emergency services.(4) The plan must specify that the owner or operator will maintain a list of names, addresses, and phone numbers (office and home) of all persons qualified to act as emergency coordinator (see subsection (e) of this section), and this list must be kept up-to-date and at the facility. Where more than one person is listed, one must be named as primary emergency coordinator and others must be listed in the order in which they will assume responsibility as alternates.(5) The plan must include a list of all emergency equipment at the facility (such as fire extinguishing systems, spill control equipment, communications and alarm systems, and decontamination equipment), where this equipment is required. This list must be kept up-to-date. In addition, the plan must include the location and a physical description of each item on the list, and a brief outline of its capabilities.(6) The plan must include an evacuation plan for facility personnel where there is a possibility that evacuation could be necessary. This plan must describe signal(s) to be used to begin evacuation, evacuation routes, and alternate evacuation routes (in cases where the primary routes could be blocked by releases of waste or fires).(c) Copies of contingency plan. A copy of the contingency plan and all revisions to the plan must be:(1) maintained at the facility; and(2) submitted to all local police departments, fire departments, hospitals, and state and local emergency response teams that may be called upon to provide emergency services.(d) Changes to the contingency plan. The contingency plan must be reviewed, and immediately updated, if necessary, whenever:(1) the facility permit is revised;(2) the plan fails in an emergency;(3) the facility changes in its design, construction, operation, maintenance, or other circumstances in a way that materially increases the potential for fires, explosions, or releases of waste or constituents of such waste, or changes the response necessary in an emergency; or(4) the list of emergency equipment changes.(e) Emergency coordinator. At all times, there must be at least one employee either on the facility premises or on call (i.e., available to respond to an emergency by reaching the facility within a short period of time) with the responsibility for coordinating all emergency response measures. This emergency coordinator shall be thoroughly familiar with all aspects of the facility's contingency plan, all operations and activities at the facility, the location of all records within the facility, and the facility layout. In addition, this person must have the authority to commit the resources needed to carry out the contingency plan.(f) Emergency procedures.(1) Whenever there is an imminent or actual emergency situation, the emergency coordinator (or his designee when the emergency coordinator is on call) shall immediately:(A) activate facility alarms or communication systems, where applicable, to notify all facility personnel; and(B) notify appropriate state or local agencies with designated response roles if their help is needed.(2) Whenever there is a release, fire, or explosion, the emergency coordinator shall immediately identify the character, exact source, amount, and areal extent of any released materials. The emergency coordinator may do this by observation or review of facility records or manifests, and, if necessary, by chemical analysis.(3) Concurrently, the emergency coordinator shall assess possible hazards to human health or the environment that may result from the release, fire, or explosion. This assessment must consider both direct and indirect effects of the release, fire, or explosion (e.g., the effects of any toxic, irritating, or asphyxiating gases that are generated, or the effects of any waste surface water run-off from water or chemical agents used to control fire and heat-induced explosions).(4) If the emergency coordinator determines that the facility has had a release, fire, or explosion that could threaten human health, or the environment, outside the facility and if the emergency coordinator's assessment indicates that evacuation of local areas may be advisable, the emergency coordinator shall immediately notify appropriate local authorities, and must be available to help appropriate officials decide whether local areas should be evacuated.(5) The emergency coordinator shall immediately notify either the government official designated as the on-scene coordinator for that geographical area, (in the applicable regional contingency plan under 40 CFR Part 1510) or the National Response Center (using their 24-hour toll free number 1-800-424-8802). The report must include:(A) name and telephone number of reporter;(B) name and address of facility;(C) time and type of incident (e.g., release, fire);(D) name and quantity of material(s) involved, to the extent known;(E) the extent of injuries, if any; and(F) the possible hazards to human health, or the environment, outside the facility.(6) During an emergency, the emergency coordinator shall take all reasonable measures necessary to ensure that fires, explosions, and releases do not occur, recur, or spread to other waste at the facility. These measures must include, where applicable, stopping processes and operations, collecting and containing release waste, and removing or isolating containers.(7) If the facility stops operations in response to a fire, explosion, or release, the emergency coordinator shall monitor for leaks, pressure buildup, gas generation, or ruptures in valves, pipes, or other equipment, wherever this is appropriate.(8) Immediately after an emergency, the emergency coordinator shall provide for treating, storing, or disposing of recovered waste, contaminated soil or surface water, or any other material that results from a release, fire, or explosion at the facility. The owner or operator shall classify all recovered waste, contaminated soil or surface water, or any other material that results from a release, fire, or explosion at the facility in accordance with Subchapter R of this chapter (relating to Waste Classification) and in accordance with all applicable requirements of Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste in General).(9) The emergency coordinator shall ensure that, in the affected area(s) of the facility:(A) no waste that may be incompatible with the released material is treated, stored, or disposed of until cleanup procedures are completed; and(B) all emergency equipment listed in the contingency plan is cleaned and fit for its intended use before operations are resumed.(10) The owner or operator shall notify the executive director, and other appropriate state and local authorities, that the facility is in compliance with paragraph (8) of this subsection before operations are resumed in the affected area(s) of the facility.(11) The owner or operator shall note in the operating record the time, date, and details of any incident that requires implementing the contingency plan. Within 15 days after the incident, the owner or operator shall submit a written report on the incident to the executive director. The report must include:(A) name, address, and telephone number of the owner or operator;(B) name, address, and telephone number of the facility;(C) date, time, and type of incident (e.g., fire, explosion);(D) name and quantity of material(s) involved;(E) the extent of injuries, if any;(F) an assessment of actual or potential hazards to human health or the environment, where this is applicable; and(G) estimated quantity and disposition of recovered material that resulted from the incident.</content><note type="source"><p>Source Note: The provisions of this §335.589 adopted to be effective March 21, 2004, 29 TexReg 2888.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.590"><num value="335.590">§335.590</num><heading>Operational and Design Standards</heading><content>The following requirements, including those applicable to municipal solid waste facilities, apply to owners and operators of facilities subject to this subchapter:(1) §330.121 of this title (relating to General);(2) §330.123 of this title (relating to Pre-operation Notice);(3) §330.125 of this title (relating to Recordkeeping Requirements), except that the requirements under §330.125(b)(3) of this title concerning recordkeeping for gas monitoring and remediation plans relating to explosive and other gases do not apply, except as determined necessary by the executive director;(4) §330.127 of this title (relating to Site Operating Plan);(5) §330.129 of this title (relating to Fire Protection); (6) §330.131 of this title (relating to Access Control);(7) §330.133(a) - (c) of this title (relating to Unloading of Waste);(8) §330.137 of this title (relating to Site Sign);(9) §330.139 of this title (relating to Control of Windblown Waste and Litter);(10) §330.141 of this title (relating to Easements and Buffer Zones);(11) §330.143(a) of this title (relating to Landfill Markers and Benchmark);(12) §330.149 of this title (relating to Odor Management Plan);(13) §330.153 of this title (relating to Site Access Roads);(14) §330.155 of this title (relating to Salvaging and Scavenging);(15) §330.157 of this title (relating to Endangered Species Protection);(16) §330.159 of this title (relating to Landfill Gas Control) as determined necessary by the executive director;(17) §330.161 of this title (relating to Oil, Gas, and Water Wells);(18) §330.163 of this title (relating to Compaction); (19) §330.165 of this title (relating to Landfill Cover);(20) §330.167 of this title (relating to Ponded Water);(21) §330.175 of this title (relating to Visual Screening of Deposited Waste);(22) §330.207 of this title (relating to Contaminated Water Management);(23) the owner or operator shall have and follow procedures for the suppression and control of dust; and(24) the owner or operator shall ensure that each commercial industrial nonhazardous waste landfill unit meets the requirements of subparagraphs (A) - (F) of this paragraph.(A) Design criteria.(i) Landfill cells shall be designed and constructed in accordance with subclause (I) or (II) of this clause, and shall also be constructed in accordance with subclause (III) of this clause.(I) a design that ensures that the concentration values for constituents listed in §330.419(a) of this title (relating to Constituents for Detection Monitoring) will not be exceeded in the uppermost aquifer at the point of compliance, as specified by the executive director under clause (iv) of this subparagraph; or(II) a composite liner, as defined in clause (ii) of this subparagraph, and a leachate collection system that is designed and constructed in accordance with subparagraph (B) of this paragraph; and(III) unless the executive director approves an engineered design that the applicant has demonstrated will provide equal or greater protection to human health and the environment, a landfill cell must be constructed where the base of the containment structure, which includes the sides and bottom of the containment structure, is at least five feet above the uppermost saturated soil unit having a Unified Soil Classification of GW (well-graded gravel), GP (poorly-graded gravel), GM (silty gravel), GC (clayey gravel), SW (well-graded sand), SP (poorly-graded sand), or SM (silty sand), or a hydraulic conductivity greater than 1 x 10-5 cm/sec, unless such saturated soil unit is not sufficiently thick and laterally continuous to provide a significant pathway for waste migration.(ii) For purposes of this section, "composite liner" means a system consisting of two components. The upper component shall consist of a minimum 30-mil (0.75 mm) geomembrane liner and the lower component shall consist of at least a three-foot layer of compacted soil with a hydraulic conductivity of no more than 1 x 10-7 cm/sec. Geomembrane liner components consisting of high density polyethylene shall be at least 60-mil thick. The geomembrane liner component must be installed in direct and uniform contact with the compacted soil component.(iii) When approving a design that complies with clause (i)(I) of this subparagraph, the executive director may consider at least the following factors:(I) the hydrogeologic characteristics of the facility and surrounding land;(II) the climatic factors of the area; and(III) the volume and physical and chemical characteristics of the leachate.(iv) For purposes of this paragraph, the point of compliance is defined in §330.3 of this title (relating to Definitions). In determining the point of compliance, the executive director may consider at least the following factors:(I) the hydrogeologic characteristics of the facility and surrounding land;(II) the volume and physical and chemical characteristics of the leachate;(III) the quantity, quality, and direction of flow of groundwater;(IV) the proximity and withdrawal rate of the groundwater users;(V) the availability of alternative drinking water supplies;(VI) the existing quality of the groundwater, including other sources of contamination and their cumulative impacts on the groundwater and whether groundwater is currently used or reasonably expected to be used for drinking water;(VII) public health, safety, and welfare effects; and(VIII) practicable capability of the owner or operator.(B) Landfill cells shall have a leachate-collection system designed and constructed to maintain less than a 30-cm depth of leachate over the liner. The leachate-collection and leachate-removal system shall be:(i) constructed of materials that are chemically resistant to the leachate expected to be generated;(ii) of sufficient strength and thickness to prevent collapse under the pressures exerted by overlying wastes, waste cover materials, and by any equipment used at the landfill; and(iii) designed and operated to function through the scheduled closure and post-closure period of the landfill.(C) Storm water run-on/run-off facilities such as berms and ditches shall be provided in accordance with §330.63 of this title (relating to Contents of Part III of the Application).(D) The site shall have a groundwater monitoring system installed that is capable of detecting the migration of pollutants from the landfill and is sampled semiannually for the parameters specified in Chapter 330, Subchapter J of this title (relating to Groundwater Monitoring and Corrective Action).(E) The final cover placed over the commercial industrial nonhazardous waste landfill unit shall consist of a minimum of 18 inches of uncontaminated topsoil overlying four feet of compacted clay-rich soil material meeting the requirements of §330.457 of this title (relating to Closure Requirements for Municipal Solid Waste Landfill Units That Receive Waste on or after October 9, 1993). The final cover over the aerial fill shall meet the requirements of §330.457 of this title and shall include a flexible membrane component.(F) Nonhazardous waste may be placed above natural grade in commercial industrial nonhazardous waste landfill units provided the conditions in clauses (i) - (vi) of this subparagraph are met, except as provided in clause (vii) of this subparagraph:(i) waste placed above grade shall be laterally contained by dikes that are constructed to:(I) prevent washout, release, or exposure of waste;(II) be physically stable against slope failure, with a minimum safety factor of 1.5;(III) prevent washout from hydrostatic and hydrodynamic forces from storms and floods;(IV) prevent storm water from reaching the waste;(V) minimize release of leachate; and(VI) minimize long-term maintenance;(ii) the liner required in paragraph (22) of this section shall extend to the crest of the dike;(iii) waste placed against the dike is placed no higher that three feet below the crest of the dike;(iv) the slope of the wastes placed in the commercial industrial nonhazardous waste landfill units does not exceed 3% to the center of the unit;(v) no waste is placed higher than the lowest elevation of the dike crest; and(vi) a dike certification report is submitted with Attachment 10 of Part III of the permit application. The certification shall be in the following form:Attached Graphic(vii) a commercial industrial nonhazardous waste landfill is not subject to the requirements of clauses (ii) - (v) of this subparagraph provided that the owner or operator submits a demonstration that the standards of clause (i) of this subparagraph can be met without meeting the requirements of clauses (ii) - (v) of this subparagraph, the demonstration is approved in writing by the executive director, and the owner or operator enters the approval into the facility operating record.(25) Hazardous waste generated by a very small quantity generator that meets the conditions for exemption for a very small quantity generator may be accepted for disposal in a commercial industrial nonhazardous waste landfill facility provided the amount of hazardous waste accepted from each very small quantity generator does not exceed 220 pounds (100 kilograms) a calendar month, and provided the landfill owner or operator is willing to accept the hazardous waste.</content><note type="source"><p>Source Note: The provisions of this §335.590 adopted to be effective March 21, 2004, 29 TexReg 2888; amended to be effective October 29, 2009, 34 TexReg 7321; amended to be effective June 11, 2020, 45 TexReg 3780; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.591"><num value="335.591">§335.591</num><heading>Groundwater Protection Design and Operation</heading><content>The following requirements applicable to municipal solid waste facilities apply to owners and operators of facilities subject to this subchapter:(1) §330.333 of this title (relating to Leachate Collection System);(2) §330.335 of this title (relating to Alternative Liner Design);(3) §330.337 of this title (relating to Special Liner Design Constraints);(4) §330.555 of this title (relating to Fault Areas);(5) §330.339 of this title (relating to Liner Quality Control Plan); and(6) §330.341 of this title (relating to Soil Liner Evaluation Report and Geomembrane Liner Evaluation Report).</content><note type="source"><p>Source Note: The provisions of this §335.591 adopted to be effective March 21, 2004, 29 TexReg 2888; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.592"><num value="335.592">§335.592</num><heading>Groundwater Monitoring and Corrective Action</heading><content>The following requirements applicable to municipal solid waste and hazardous waste facilities apply to owners and operators of facilities subject to this subchapter:(1) §330.401 of this title (relating to Applicability);(2) §330.403 of this title (relating to Groundwater Monitoring Systems);(3) §330.405 of this title (relating to Groundwater Sampling and Analysis Requirements);(4) §330.407 of this title (relating to Detection Monitoring Program for Type I Landfills);(5) §330.409 of this title (relating to Assessment Monitoring Program);(6) §330.411 of this title (relating to Assessment of Corrective Measures);(7) §330.413 of this title (relating to Selection of Remedy);(8) §330.415 of this title (relating to Implementation of the Corrective Action Program);(9) §330.419 of this title (relating to Constituents for Detection Monitoring); and(10) §330.421 of this title (relating to Monitor Well Construction Specifications).</content><note type="source"><p>Source Note: The provisions of this §335.592 adopted to be effective March 21, 2004, 29 TexReg 2888; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.593"><num value="335.593">§335.593</num><heading>Closure and Post-Closure Care Requirements</heading><content>The owner or operator of a facility subject to this subchapter shall close the facility or any part of it in accordance with the requirements of §335.8 of this title (relating to Closure and Remediation). In addition to these requirements, the owner or operator shall meet the requirements for closure and post-closure of municipal solid waste facilities in §330.457 of this title (relating to Closure Requirements for Municipal Solid Waste Landfill Units that Receive Waste on or after October 9, 1993).</content><note type="source"><p>Source Note: The provisions of this §335.593 adopted to be effective March 21, 2004, 29 TexReg 2888; amended to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scT/s335.594"><num value="335.594">§335.594</num><heading>Financial Assurance</heading><content>The owner or operator of any landfill subject to this subchapter shall establish and maintain financial assurance for closure and post-closure care of the landfill in accordance with Chapter 37, Subchapter P of this title (relating to Financial Assurance for Hazardous and Nonhazardous Industrial Solid Waste Facilities).</content><note type="source"><p>Source Note: The provisions of this §335.594 adopted to be effective March 21, 2004, 29 TexReg 2888.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scU"><num value="U">SUBCHAPTER U</num><heading>STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE FACILITIES OPERATING UNDER A STANDARD PERMIT</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scU/s335.601"><num value="335.601">§335.601</num><heading>Purpose, Scope, and Applicability</heading><content>(a) The purpose of this subchapter is to establish minimum standards which define the acceptable management of hazardous waste under a standard permit.(b) This subchapter applies to owners and operators of facilities who treat or store hazardous waste under a Subchapter U of this chapter standard permit, except as provided otherwise in 40 Code of Federal Regulations (CFR) Part 261, Subpart A.(c) A facility owner or operator who has fully complied with the requirements for interim status - as defined in Resource Conservation Recovery Act (RCRA), §3005(e) and regulations under 40 CFR §270.70 - must also comply with the regulations specified in Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities) instead of the regulations in 40 CFR Part 270, until final administrative disposition of the standard permit application is made, except as provided under §335.152(a)(14) of this title (relating to Standards).(d) Notwithstanding any other provisions of this subchapter, imminent hazard enforcement actions may be brought pursuant to RCRA, §7003.</content><note type="source"><p>Source Note: The provisions of this §335.601 adopted to be effective October 29, 2009, 34 TexReg 7321.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scU/s335.602"><num value="335.602">§335.602</num><heading>Standards</heading><content>(a) The following regulations contained in 40 Code of Federal Regulations (CFR) Part 267 (including all appendices to 40 CFR Part 267) are adopted by reference as amended in the Federal Register through September 8, 2005 (70 FR 53420) and as further amended and adopted as indicated in each paragraph of this subsection:(1) 40 CFR Part 267, Subpart B--General Facility Standards; (2) 40 CFR Part 267, Subpart C--Preparedness and Prevention; (3) 40 CFR Part 267, Subpart D--Contingency Plan and Emergency Procedures;(4) 40 CFR Part 267, Subpart E--Recordkeeping, Reporting, and Notifying (as amended in the Federal Register through November 28, 2016 (81 FR 85732);(5) 40 CFR Part 267, Subpart F--Releases from Solid Waste Management Units;(6) 40 CFR Part 267, Subpart G--Closure;(7) 40 CFR Part 267, Subpart I--Use and Management of Containers;(8) 40 CFR Part 267, Subpart J--Tank Systems;(9) 40 CFR Part 267, Subpart DD--Containment buildings; and(10) 40 CFR §267.142, concerning Cost estimate for closure.(b) The regulations of the United States Environmental Protection Agency (EPA) that are adopted by reference in this section are adopted subject to the following changes.(1) The term "regional administrator" is changed to the "executive director" of the Texas Commission on Environmental Quality or to the commission, consistent with the organization of the commission as set out in Texas Water Code, Chapter 5, Subchapter B.(2) Reference to:(A) 40 CFR Part 261 is changed to §335.504 of this title (relating to Hazardous Waste Determination);(B) 40 CFR Part 262 is changed to Subchapter C of this chapter (relating to Standards Applicable to Generators of Hazardous Waste);(C) 40 CFR §264.1 is changed to §335.151 of this title (relating to Purpose, Scope, and Applicability);(D) Reference to 40 CFR Part 264, Subpart D is changed to §335.152(a)(3) of this title (relating to Standards) and §335.153 of this title (relating to Reporting of Emergency Situations by Emergency Coordinator);(E) 40 CFR Part 264, Subpart S is changed to §335.152(a)(14) of this title;(F) 40 CFR Part 265 is changed to Subchapter E of this chapter (relating to Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities);(G) 40 CFR Part 268 is changed to Subchapter O of this chapter (relating to Land Disposal Restrictions);(H) 40 CFR Part 270, Subpart J is changed to Chapter 305, Subchapter R of this title (relating to Resource Conservation and Recovery Act Standard Permits for Storage and Treatment Units);(I) 40 CFR §262.16 or §262.17 are changed to §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste);(J) 40 CFR §264.101 is changed to §335.167 of this title (relating to Corrective Action for Solid Waste Management Units); and(K) Reference to "standardized permit" is changed to "standard permit".(3) 40 CFR Parts 260 - 270 means the commission's rules including, but not limited to, Chapters 50, 305, and 335 of this title (relating to Action on Applications and Other Authorizations; Consolidated Permits; and Industrial Solid Waste and Municipal Hazardous Waste, respectively), as applicable.(c) An owner or operator of a unit that treats, stores, or disposes of hazardous waste in tanks, containers, and containment buildings authorized by a standard permit as specified in this section shall establish and maintain financial assurance in accordance with Chapter 37, Subchapter P of this title (relating to Financial Assurance for Hazardous and Nonhazardous Industrial Solid Waste Facilities).</content><note type="source"><p>Source Note: The provisions of this §335.602 adopted to be effective October 29, 2009, 34 TexReg 7321; amended to be effective June 16, 2016, 41 TexReg 4259; amended to be effective June 11, 2020, 45 TexReg 3780; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scV"><num value="V">SUBCHAPTER V</num><heading>STANDARDS FOR RECLAMATION OF HAZARDOUS SECONDARY MATERIALS</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scV/s335.701"><num value="335.701">§335.701</num><heading>Purpose and Applicability</heading><content>(a) The purpose of this subchapter is to establish minimum standards for the management of hazardous secondary materials excluded under 40 Code of Federal Regulations (CFR) §261.4(a)(23), (24), and (27) (Exclusions).(b) This subchapter applies to persons managing hazardous secondary materials excluded under 40 CFR §261.4(a)(23), (24), and (27).</content><note type="source"><p>Source Note: The provisions of this §335.701 adopted to be effective June 16, 2016, 41 TexReg 4259.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scV/s335.702"><num value="335.702">§335.702</num><heading>Standards</heading><content>(a) The following regulations contained in 40 Code of Federal Regulations (CFR) Part 261 (including all appendices to 40 CFR Part 261) are adopted by reference as amended and adopted in the CFR through January 13, 2015 (80 FR 1694) and as further amended and adopted as indicated in each paragraph of this subsection:(1) 40 CFR Part 261, Subpart I--Use and Management of Containers;(2) 40 CFR Part 261, Subpart J--Tank Systems:(3) 40 CFR Part 261, Subpart M--Emergency Preparedness and Response for Management of Excluded Hazardous Secondary Materials as amended through November 28, 2016 (81 FR 85732), except all references to "operating under a verified recycler variance under 40 CFR §260.31(d)";(4) 40 CFR Part 261, Subpart AA--Air Emission Standards for Process Vents;(5) 40 CFR Part 261, Subpart BB--Air Emission Standards for Equipment Leaks; and(6) 40 CFR Part 261, Subpart CC--Air Emission Standards for Tanks and Containers.(b) The regulations of the United States Environmental Protection Agency (EPA) that are adopted by reference in this section are adopted subject to the following changes.(1) The term "regional administrator" is changed to the "executive director" of the Texas Commission on Environmental Quality, consistent with the organization of the commission as set out in Texas Water Code, Chapter 5, Subchapter B;(2) 40 CFR §260.10 is changed to §335.1 of this title (relating to Definitions);(3) The terms "EPA" and "Environmental Protection Agency" are changed to "Texas Commission on Environmental Quality."</content><note type="source"><p>Source Note: The provisions of this §335.702 adopted to be effective June 16, 2016, 41 TexReg 4259; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scV/s335.703"><num value="335.703">§335.703</num><heading>Financial Assurance Requirements</heading><content>(a) Applicability.(1) The requirements of this section apply to owners or operators of reclamation facilities and intermediate facilities managing hazardous secondary materials excluded under 40 Code of Federal Regulations (CFR) §261.4(a)(24), except:(2) States and the Federal government are exempt from the financial assurance requirements of this section.(b) When used in this section, the following words and terms shall have the same meanings as the definitions in §37.11 and §335.1 of this title (relating to Definitions) except:(1) Closure--Includes the activities under §335.8 of this title (relating to Closure and Remediation) and applicable closure requirements of 40 CFR Parts 264 and 265.(2) Closure plan--Includes the removal and decontamination plan for release as set out in §335.705 of this title (relating to Removal and Decontamination Plan for Release).(c) Owners and operators of a reclamation facility or an intermediate facility required by 40 CFR §261.4(a)(24) to provide financial assurance, shall establish and maintain financial assurance for removal and decontamination and corrective action as a condition of the exclusion under 40 CFR §261.4(a)(24) and comply with Chapter 37, Subchapters A and B of this title (relating to General Financial Assurance Requirements; and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action) except:(1) an owner or operator must submit an acceptable originally signed mechanism to the executive director prior to the management of hazardous secondary materials under the exclusion in 40 CFR §261.4(a)(24);(2) in addition to the reasons to draw specified in §37.101 of this title (relating to Drawing on the Financial Assurance Mechanisms), the executive director may draw on the financial assurance mechanism(s) following a determination by the executive director that the hazardous secondary materials do not meet the conditions of the exclusion under 40 CFR §261.4(a)(24).(d) Owners or operators of a reclamation facility or intermediate facility required by 40 CFR §261.4(a)(24) to provide financial assurance must comply with Chapter 37, Subchapter C of this title (relating to Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action), by establishing financial assurance for removal and decontamination and corrective action using any of the following mechanisms as specified in Chapter 37, Subchapter C of this title:(1) Trust fund (fully funded), except reimbursements to the owner or operator as specified under §37.201(j) of this title (relating to Trust Fund) may only be made if the owner or operator begins final closure under the applicable requirements of 40 CFR Part 264 or 265;(2) Surety bond guaranteeing payment, except:(A) the bond must guarantee that the owner or operator will fund the standby trust fund in an amount equal to the penal sum of the bond before the loss of the exclusion under 40 CFR §261.4(a)(24) rather than the criteria set out in §37.211(d) of this title (relating to Surety Bond Guaranteeing Payment); and(B) the alternate financial assurance to be provided by the Principal must meet the requirements specified in this section;(3) Irrevocable standby letter of credit, except:(A) the executive director may draw pursuant to subsection (c)(2) of this section in addition to §37.231 of this title (relating to Irrevocable Standby Letter of Credit); and(B) alternate financial assurance must meet the requirements specified in this section;(4) Financial test, except:(A) the financial assurance amounts required by this section, for hazardous secondary materials must be included as an additional environmental obligation when determining eligibility for the financial test in accordance with §37.251 of this title (relating to Financial Test); and(B) alternate financial assurance must meet the requirements of this section;(5) Corporate guarantee except:(A) the terms of the guarantee specified in §37.261(e)(1) of this title (relating to Corporate Guarantee), shall provide that following a determination by the executive director that the hazardous secondary materials at the owner or operator's facility covered by this guarantee do not meet the requirements of the exclusion under 40 CFR §261.4(a)(24) the guarantor will dispose of any hazardous secondary material as hazardous waste and close the facility in accordance with the applicable closure requirements of 40 CFR Part 264 or 265, or establish a trust fund as specified in this section, in the name of the owner or operator in the amount of the current cost estimate; and(B) the terms of the guarantee requiring alternate financial assurance in §37.261(e)(3) of this title must meet the requirements of this section.(e) Owners or operators of a reclamation facility or intermediate facility required by 40 CFR §261.4(a)(24) to provide financial assurance for removal and decontamination and corrective action shall comply with the wording requirements of Chapter 37, Subchapter D of this title (relating to Wording of the Mechanisms for Closure, Post Closure and Corrective Action) for the mechanisms indicated in subsection (d) of this section except:(1) the phrases in the Payment Bond under §37.311 of this title (relating to Payment Bond) shall be revised by:(A) replacing the following language identified here by quotation marks "Now, therefore, the conditions of the obligation are such that if the Principal shall faithfully, before the beginning of final closure of, or corrective action at, each facility identified above, fund into the standby trust fund the amount(s) identified above for the facility," with the following language identified here by quotation marks "Now, therefore, the conditions of the obligation are such that if the Principal shall faithfully, before the beginning of final closure of, or corrective action at, each facility identified above, fund into the standby trust fund the amount(s) identified above for the facility; or, if the Principal shall satisfy all the requirements for exclusion of hazardous secondary materials from classification as solid waste under 40 CFR §261.4(a)(24) and be released from the financial assurance requirements by the executive director"; and(B) replacing the following language identified here by quotation marks "Or, if the Principal shall provide alternate financial assurance, as specified in 30 Texas Administrative Code, Chapter 37 (relating to Financial Assurance)" with the following language set off here by quotation marks "Or, if the Principal shall provide alternate financial assurance, as specified in 30 Texas Administrative Code, §335.703 (relating to Financial Assurance Requirements)"; and(C) replacing the certification statement at the end of the Payment Bond with the following statement identified by quotation marks "The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety(ies) and that the wording of this surety bond is identical to the wording specified in 30 Texas Administrative Code §37.311 (relating to Payment Bond), as modified by 30 Texas Administrative Code §335.703 (relating to Financial Assurance Requirements), as such regulations were constituted on the date the bond was executed.";(2) The Chief Financial Officer's letter associated with the financial test specified in §37.351 of this title (relating to Financial Test), shall include the environmental obligations associated with the exclusion in paragraph 5(f) of the Chief Financial Officer's Letter in Figure: 30 TAC §37.351;(3) The wording of the Corporate Guarantee required by §37.361 of this title (relating to Corporate Guarantee) shall be revised by:(A) replacing Recital number 4 with "For value received from (owner or operator) (describe consideration and dollar amount), guarantor guarantees to the TCEQ that in the event of a determination by the executive director that the hazardous secondary materials at the owner or operator's facility covered by this guarantee do not meet the conditions of the exclusion under 40 CFR §261.4(a)(24), the guarantor will dispose of any hazardous secondary material as hazardous waste, and close the facility in accordance with the applicable closure requirements of 40 CFR Part 264 or 265, or establish a trust fund as specified in 30 Texas Administrative Code §335.703 (relating to Financial Assurance Requirements) in the name of the (owner or operator) in the amount of the current cost estimate";(B) replacing Recital number 5 with "Guarantor agrees that if, at the end of any fiscal year before termination of this guarantee, the guarantor fails to meet the financial test criteria, guarantor shall send within 90 days, by certified mail, notice to the TCEQ executive director and to (owner or operator) that the guarantor intends to provide alternate financial assurance as specified in 30 Texas Administrative Code §335.703 (relating to Financial Assurance Requirements), as applicable, in the name of (owner or operator). Within 120 days after the end of such fiscal year, the guarantor shall establish such financial assurance unless (owner or operator) has done so";(C) replacing Recital number 7 with "Guarantor agrees that within 30 days after being notified by the TCEQ executive director of a determination that guarantor no longer meets the financial test criteria or is disallowed from continuing as a guarantor of (closure, post closure, or corrective action), guarantor shall establish alternate financial assurance as specified in 30 Texas Administrative Code §335.703 (relating to Financial Assurance Requirements) in the name of (owner or operator) unless (owner or operator) has done so";(D) replacing Recital number 11 with "Guarantor agrees that if (owner or operator) fails to provide alternate financial assurance as specified in 30 Texas Administrative Code §335.703 (relating to Financial Assurance Requirements), and obtain written approval of alternate financial assurance from the TCEQ executive director within 90 days after a notice of termination by the guarantor is received by the TCEQ executive director from guarantor, guarantor shall provide such alternate financial assurance in the name of the (owner or operator)"; and(E) The wording of the certification statement at the end of the Corporate Guarantee shall be replaced with the following language identified by quotation marks "I hereby certify that the wording of this guarantee is identical to the wording specified in 30 Texas Administrative Code §37.361 (relating to Corporate Guarantee) as modified by 30 Texas Administrative Code §335.703 (relating to Financial Assurance Requirements) as such regulations were constituted on the date first above written."(f) An owner or operator of a reclamation or intermediate facility, or a group of facilities, subject to financial assurance requirements under 40 CFR §261.4(a)(24) shall establish and maintain financial assurance for bodily injury and property damage to third parties caused by sudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator must have and maintain liability coverage for sudden accidental occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs.(g) An owner or operator of a reclamation or intermediate facility, or group of facilities, with a land-based unit as defined in §335.1 of this title shall establish and maintain financial assurance for bodily injury and property damage to third parties caused by nonsudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator must have and maintain liability coverage for nonsudden accidental occurrences in the amount of at least $3 million per occurrence with an annual aggregate of at least $6 million, exclusive of legal defense costs.(h) An owner or operator who must meet the requirements of subsections (f) and (g) of this section may combine the required per-occurrence coverage levels for sudden and nonsudden accidental occurrences into a single per-occurrence level, and combine the required annual aggregate level. Owners or operators who combine coverage levels for sudden and nonsudden accidental occurrences must maintain liability coverage in the amount of $4 million per occurrence and $8 million annual aggregate.(i) Owners or operators of a reclamation facility or intermediate facility, or a group of facilities, subject to financial assurance requirements under 40 CFR §261.4(a)(24) must also comply with Chapter 37, Subchapters A and E of this title (relating to General Financial Assurance Requirements; and Financial Assurance Requirements for Liability Coverage) and shall use any of the mechanisms specified in Chapter 37, Subchapter F of this title (relating to Financial Assurance Mechanisms for Liability) to meet the liability requirements of this section except:(1) liability insurance may only be demonstrated by providing an Endorsement for Liability as specified in §37.641 of this title (relating to Endorsement for Liability); and(2) when using the financial test in accordance with §37.541 of this title (relating to Financial Test for Liability) the financial assurance amounts required by of this section, for hazardous secondary materials excluded under 40 CFR §261.4(a)(24) must be included as an additional environmental obligation.(j) An owner or operator of a reclamation facility, an intermediate facility, or a group of facilities required by 40 CFR §261.4(a)(24) to provide financial assurance demonstrating liability coverage shall comply with the requirements of Chapter 37, Subchapter G of this title (relating to Wording of the Mechanisms for Liability) for the mechanisms required by subsection (i) of this section except The Chief Financial Officer's letter associated with the financial test for liability specified in §37.651 of this title (relating to Financial Test for Liability), must include the financial assurance amounts required by this section, for hazardous secondary materials excluded under 40 CFR §261.4(a)(24) as an additional environmental obligation in paragraph 5(f) of the Chief Financial Officer's Letter in Figure: 30 TAC §37.351.(k) If the state of Texas either assumes legal responsibility for an owner's or operator's compliance with the closure, post closure, corrective action, or liability requirements of this chapter, or assures that funds will be available from state sources to cover those requirements, the owner or operator will be in compliance with the requirements of this chapter if the executive director determines that the state's assumption of responsibility is at least equivalent to the financial mechanisms specified in this chapter. The executive director will evaluate the equivalency of state guarantees principally in terms of certainty of the availability of funds for the required closure, post closure, or corrective action activities, or liability coverage; and the amount of funds that will be made available. The executive director may also consider other factors as the executive director deems appropriate. The owner or operator must submit to the executive director a letter from the State of Texas describing the nature of the state's assumption of responsibility together with a letter from the owner or operator requesting that the state's assumption of responsibility be considered acceptable for meeting the requirements of this chapter. The letter from the state must include the following information: the facility's permit number and/or solid waste registration number, name, physical and mailing addresses, and the amount of funds for closure, post closure, or corrective action or liability coverage that are guaranteed by the state. The executive director will notify the owner or operator of the determination regarding the acceptability of the state's guarantee in lieu of financial mechanisms specified in this chapter. The executive director may require the owner or operator to submit additional information as is deemed necessary to make this determination. Upon approval by the executive director, the owner or operator will be deemed to be in compliance with the requirements of this chapter. If the State of Texas' assumption of responsibility is found acceptable as specified in this section except for the amount of funds available, the owner or operator may satisfy the requirements of this chapter by use of both the state's assurance and additional financial mechanisms as specified in this chapter. The amount of funds available through the state and the owner or operator's mechanisms shall equal at least the required amount.</content><note type="source"><p>Source Note: The provisions of this §335.703 adopted to be effective June 16, 2016, 41 TexReg 4259; amended to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scV/s335.704"><num value="335.704">§335.704</num><heading>Cost Estimate</heading><content>(a) The requirements of this section apply to owners or operators of reclamation and intermediate facilities managing hazardous secondary materials excluded under 40 Code of Federal Regulations (CFR) §261.4(a)(24).(b) The owner or operator must submit to the executive director a detailed written estimate, in current dollars, of the cost of disposing of any hazardous secondary material as listed or characteristic hazardous waste, and the potential cost of closing the facility as a treatment, storage, and disposal facility. The estimate must meet the following requirements:(1) the estimate must equal the cost of conducting the activities described in this subsection at the point when the extent and manner of the facility's operation would make these activities the most expensive; and(2) the cost estimate must be based on the costs to the owner or operator of hiring a third party to conduct these activities. A third party is a party who is neither a parent nor a subsidiary of the owner or operator (See definition of "Parent corporation" in 40 CFR §265.141(d)). The owner or operator may use costs for on-site disposal in accordance with applicable requirements if the owner or operator can demonstrate that on-site disposal capacity will exist at all times over the life of the facility.(3) The cost estimate may not incorporate any salvage value that may be realized with the sale of hazardous secondary materials, or hazardous or non-hazardous wastes if applicable under 40 CFR §265.113(d), facility structures or equipment, land, or other assets associated with the facility.(4) The owner or operator may not incorporate a zero cost for hazardous secondary materials, or hazardous or non-hazardous wastes if applicable under 40 CFR §265.113(d) that might have economic value.(c) During the active life of the facility, the owner or operator must adjust the cost estimate for inflation in accordance with the requirements of §37.131 of this title (relating to Annual Inflation Adjustments to Closure Cost Estimates).(d) During the active life of the facility, the owner or operator must submit to the executive director a revised cost estimate no later than 30 days after a change in a facility's operating plan or design that would increase the costs of conducting the activities described in subsection (b) of this section or no later than 60 days after an unexpected event which increases the cost of conducting the activities described in subsection (b) of this section. The revised cost estimate must be adjusted for inflation as specified in subsection (c) of this section.(e) The owner or operator must keep the following at the facility during the operating life of the facility:(1) the latest cost estimate prepared in accordance with subsections (b) and (d) of this section; and(2) when this estimate has been adjusted in accordance with subsection (c) of this section, the latest adjusted cost estimate.</content><note type="source"><p>Source Note: The provisions of this §335.704 adopted to be effective June 16, 2016, 41 TexReg 4259.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scV/s335.705"><num value="335.705">§335.705</num><heading>Removal and Decontamination Plan for Release</heading><content>(a) An owner or operator of a reclamation facility or an intermediate facility who wishes to be released from his financial assurance obligations under 40 Code of Federal Regulations (CFR) §261.4(a)(24) shall submit a plan for removing all hazardous secondary material residues to the executive director at least 180 days prior to the date on which the owner or operator expects to cease to operate under the exclusion.(b) The plan shall include, at a minimum:(1) for each hazardous secondary materials storage unit subject to financial assurance requirements under 40 CFR §261.4(a)(24), a description of how all excluded hazardous secondary materials will be recycled or sent for recycling, and how all residues, contaminated containment systems (liners, etc.), contaminated soils, subsoils, structures, and equipment will be removed or decontaminated as necessary to protect human health and the environment;(2) a detailed description of the steps necessary to remove or decontaminate all hazardous secondary material residues and contaminated containment system components, equipment, structures, and soils including, but not limited to, procedures for cleaning equipment and removing contaminated soils, methods for sampling and testing surrounding soils, and criteria for determining the extent of decontamination necessary to protect human health and the environment;(3) a detailed description of any other activities necessary to protect human health and the environment during this timeframe, including, but not limited to, leachate collection, run-on and run-off control; and(4) a schedule for conducting the activities described which, at a minimum, includes the total time required to remove all excluded hazardous secondary materials for recycling and decontaminate all units subject to financial assurance under 40 CFR §261.4(a)(24)(vi)(F), and the time required for intervening activities which will allow tracking of the progress of decontamination.(c) The executive director will provide the owner or operator and the public, through a newspaper notice, the opportunity to submit comments on the plan and request modifications to the plan no later than 30 days from the date of the notice. The executive director in response to a request or at his discretion may hold a public meeting whenever such a public meeting might clarify one or more issues concerning the plan. The executive director will give public notice of the public meeting at least 30 days before it occurs. (Public notice of the public meeting may be given at the same time as notice of the opportunity for the public to submit written comments, and the two notices may be combined.) The executive director will approve, modify, or disapprove the plan within 90 days of its receipt. If the executive director does not approve the plan, the executive director shall provide the owner or operator with a detailed written statement of reasons for the refusal and the owner or operator must modify the plan or submit a new plan for approval within 30 days after receiving such written statement. The executive director will approve or modify this plan in writing within 60 days. If the executive director modifies the plan, this modified plan becomes the approved plan. The executive director must assure that the approved plan is consistent with subsection (b) of this section. A copy of the modified plan with a detailed statement of reasons for the modifications must be mailed to the owner or operator.(d) Within 60 days of completion of the activities described in the plan for each hazardous secondary materials management unit, the owner or operator must submit to the executive director, by certified United States mail, a certification that all hazardous secondary materials have been removed from the unit and the unit has been decontaminated in accordance with the specifications in the approved plan. The certification must be signed by the owner or operator and signed and sealed by a Texas licensed professional engineer. Documentation supporting the professional engineer's certification must be furnished to the executive director, upon request, until the executive director releases the owner or operator from the financial assurance requirements for 40 CFR §261.4(a)(24).</content><note type="source"><p>Source Note: The provisions of this §335.705 adopted to be effective June 16, 2016, 41 TexReg 4259.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scV/s335.706"><num value="335.706">§335.706</num><heading>Release of the Owner or Operator from the Requirements of this Subchapter</heading><content>Within 60 days after receiving certifications from the owner or operator and a Texas licensed professional engineer that all hazardous secondary materials have been removed from the facility or a unit at the facility and that the facility or a unit has been decontaminated in accordance with the approved plan in accordance with §335.705 of this title (relating to Removal and Decontamination Plan for Release), the executive director will notify the owner or operator in writing that the owner or operator is no longer required to maintain financial assurance under 40 Code of Federal Regulations §261.4(a)(24) for that facility or a unit at the facility, unless the executive director has reason to believe that all hazardous secondary materials have not been removed from the facility or unit at a facility or that the facility or unit has not been decontaminated in accordance with the approved plan. The executive director shall provide the owner or operator a detailed written statement of any such reason to believe that all hazardous secondary materials have not been removed from the facility or unit or that the facility or unit has not been decontaminated in accordance with the approved plan.</content><note type="source"><p>Source Note: The provisions of this §335.706 adopted to be effective June 16, 2016, 41 TexReg 4259.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c335/scW"><num value="W">SUBCHAPTER W</num><heading>MANAGEMENT STANDARDS FOR HAZARDOUS WASTE PHARMACEUTICALS</heading><section identifier="/us/state/tx/tac/t30/p1/c335/scW/s335.751"><num value="335.751">§335.751</num><heading>Definitions</heading><content>The following definitions apply to this subchapter:(1) Evaluated hazardous waste pharmaceutical--A prescription hazardous waste pharmaceutical that has been evaluated by a reverse distributor in accordance with §335.771(a)(3) of this title (relating to Standards for the Management of Potentially Creditable Hazardous Waste Pharmaceuticals and Evaluated Hazardous Waste Pharmaceuticals by Reverse Distributors) and will not be sent to another reverse distributor for further evaluation or verification of manufacture credit.(2) Hazardous waste pharmaceutical--A pharmaceutical that is a solid waste, as defined in §335.1 of this title (relating to Definitions), and exhibits one or more characteristics identified in 40 Code of Federal Regulations (CFR) Part 261, Subpart C, or is listed in 40 CFR Part 261, Subpart D as these subparts are adopted by reference under §335.504 of this title (relating to Hazardous Waste Determination). A pharmaceutical is not a solid waste, as defined in §335.1 of this title, and therefore not a hazardous waste pharmaceutical, if it is legitimately used/reused (e.g., lawfully donated for its intended purpose) or reclaimed. An over-the-counter pharmaceutical, dietary supplement, or homeopathic drug is not a solid waste, as defined in §335.1 of this title, and therefore not a hazardous waste pharmaceutical, if it has a reasonable expectation of being legitimately used/reused (e.g., lawfully redistributed for its intended purpose) or reclaimed.(3) Healthcare facility--Any person that is lawfully authorized to:(A) provide preventative, diagnostic, therapeutic, rehabilitative, maintenance or palliative care, and counseling, service, assessment or procedure for the physical or mental condition, or functional status, of a human or animal or that affects the structure or function of the human or animal body; or(B) distribute, sell, or dispense pharmaceuticals, including over-the-counter pharmaceuticals, dietary supplements, homeopathic drugs, or prescription pharmaceuticals. This definition includes, but is not limited to, wholesale distributors, third-party logistics providers that serve as forward distributors, military medical logistics facilities, hospitals, psychiatric hospitals, ambulatory surgical centers, health clinics, physicians' offices, optical and dental providers, chiropractors, long-term care facilities, ambulance services, pharmacies, long-term care pharmacies, mail-order pharmacies, retailers of pharmaceuticals, veterinary clinics, and veterinary hospitals. This definition does not include pharmaceutical manufacturers, reverse distributors, or reverse logistics centers.(4) Household waste pharmaceutical--A pharmaceutical that is a solid waste, as defined in §335.1 of this title (relating to Definitions), but is excluded from being a hazardous waste under 40 Code of Federal Regulations §261.4(b)(1) as adopted under §335.504 of this title (relating to Hazardous Waste Determination).(5) Long-term care facility--A licensed entity that provides assistance with activities of daily living, including managing and administering pharmaceuticals to one or more individuals at the facility. This definition includes, but is not limited to, hospice facilities, nursing facilities, skilled nursing facilities, and the nursing and skilled nursing care portions of continuing care retirement communities. Not included within the scope of this definition are group homes, independent living communities, assisted living facilities, and the independent and assisted living portions of continuing care retirement communities.(6) Non-creditable hazardous waste pharmaceutical--A prescription hazardous waste pharmaceutical that does not have a reasonable expectation to be eligible for manufacturer credit or a nonprescription hazardous waste pharmaceutical that does not have a reasonable expectation to be legitimately used/reused or reclaimed. This includes but is not limited to, investigational drugs, free samples of pharmaceuticals received by healthcare facilities, residues of pharmaceuticals remaining in empty containers, contaminated personal protective equipment, floor sweepings, and clean-up material from the spills of pharmaceuticals.(7) Nonhazardous waste pharmaceutical--A pharmaceutical that is a solid waste, as defined in §335.1 of this title (relating to Definitions), and is not listed in 40 Code of Federal Regulations (CFR) Part 261, Subpart D, and does not exhibit a characteristic identified in 40 CFR Part 261, Subpart C.(8) Non-pharmaceutical hazardous waste--A solid waste, as defined in §335.1 of this title (relating to Definitions), that is listed in 40 Code of Federal Regulations (CFR) Part 261, Subpart D or exhibits one or more characteristics identified in 40 CFR Part 261, Subpart C, but is not a pharmaceutical, as defined in this section.(9) Pharmaceutical--Any drug or dietary supplement for use by humans or other animals; any electronic nicotine delivery system (e.g., electronic cigarette or vaping pen); or any liquid nicotine (e-liquid) packaged for retail sale for use in electronic nicotine delivery systems (e.g., pre-filled cartridges or vials). This definition includes, but is not limited to, dietary supplements, as defined by the Federal Food, Drug and Cosmetic Act; prescription drugs, as defined by 21 Code of Federal Regulations §203.3(y); over-the-counter drugs; homeopathic drugs; compounded drugs; investigational new drugs; pharmaceuticals remaining in non-empty containers; personal protective equipment contaminated with pharmaceuticals; and clean-up material from spills of pharmaceuticals. This definition does not include dental amalgam or sharps.(10) Potentially creditable hazardous waste pharmaceutical--A prescription hazardous waste pharmaceutical that has a reasonable expectation to receive manufacturer credit and:(A) is in original manufacturer packaging (except pharmaceuticals that were subject to a recall);(B) is undispensed;(C) is unexpired or less than one year past expiration date; and(D) is not an evaluated hazardous waste pharmaceutical.(11) Reverse distributor--Any person that receives and accumulates prescription pharmaceuticals that are potentially creditable hazardous waste pharmaceuticals for the purpose of facilitating or verifying manufacturer credit. Any person, including forward distributors, third-party logistics providers, and pharmaceutical manufacturers, that processes prescription pharmaceuticals for the facilitation or verification of manufacturer credit is considered a reverse distributor.</content><note type="source"><p>Source Note: The provisions of this §335.751 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scW/s335.753"><num value="335.753">§335.753</num><heading>Applicability</heading><content>(a) A healthcare facility that is a very small quantity generator when counting all of its hazardous waste, including both its hazardous waste pharmaceuticals and its non-pharmaceutical hazardous waste, remains subject to 40 Code of Federal Regulations (CFR) §262.14 as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste) and is not subject to this subchapter, except for §335.761 and §335.765 of this title (relating to Prohibition of Sewering Hazardous Waste Pharmaceuticals; and Residues of Hazardous Waste Pharmaceuticals in Empty Containers) and the optional provisions of §335.759 of this title (relating to Healthcare Facilities That Are Very Small Quantity Generators for Both Hazardous Waste Pharmaceuticals and Non-pharmaceutical Hazardous Waste).(b) A healthcare facility that is a very small quantity generator when counting all of its hazardous waste, including both its hazardous waste pharmaceuticals and its non-pharmaceutical hazardous waste, has the option of complying with subsection (d) of this section for the management of its hazardous waste pharmaceuticals as an alternative to complying with 40 CFR §262.14 as adopted in §335.53 of this title and the optional provisions of §335.759 of this title.(c) A healthcare facility or reverse distributor remains subject to all applicable hazardous waste regulations for the management of its non-pharmaceutical hazardous waste.(d) Unless a healthcare facility is managing waste in compliance with subsection (a) of this section, a healthcare facility is subject to this subsection instead of Subchapters C, D, E, and F of this chapter (relating to Standards Applicable to Generators of Hazardous Waste; Standards Applicable to Transporters of Hazardous Waste; Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities; and Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities) except as provided in this subchapter.(1) A healthcare facility managing potentially creditable hazardous waste pharmaceuticals that are not destined for a reverse distributor or non-creditable hazardous waste pharmaceuticals must comply with §335.755 of this title (relating to Standards for Healthcare Facilities Managing Non-Creditable Hazardous Waste Pharmaceuticals) and §§335.761, 335.763, 335.765, and 335.767 of this title (relating to Prohibition of Sewering Hazardous Waste Pharmaceuticals; Conditional Exemptions for Hazardous Waste Pharmaceuticals that are Controlled Substances and Household Waste Pharmaceuticals Collected in a Take-back Event or Program; Residues of Hazardous Waste Pharmaceuticals in Empty Containers; and Shipping Non-Creditable Hazardous Waste Pharmaceuticals from a Healthcare Facility or Evaluated Hazardous Waste Pharmaceuticals from a Reverse Distributor).(2) A healthcare facility managing potentially creditable hazardous waste pharmaceuticals that are prescription pharmaceuticals and are destined for a reverse distributor must comply with §335.755(a) and §335.757 (relating to Standards for Healthcare Facilities Managing Potentially Creditable Hazardous Waste Pharmaceuticals), §§335.761, 335.763, 335.765, and 335.769 of this title (relating to Shipping Potentially Creditable Hazardous Waste Pharmaceuticals from a Healthcare Facility or a Reverse Distributor to a Reverse Distributor).(e) A reverse distributor is subject to §§335.761, 335.763, 335.765, 335.767, 335.769, and 335.771 of this title (relating to Standards for the Management of Potentially Creditable Hazardous Waste Pharmaceuticals and Evaluated Hazardous Waste Pharmaceuticals by Reverse Distributors) of this title in lieu of Subchapters C, D, E or F of this chapter for the management of hazardous waste pharmaceuticals.(f) Hazardous waste pharmaceuticals generated or managed by entities other than healthcare facilities and reverse distributors (e.g., pharmaceutical manufacturers and reverse logistics centers) are not subject to this subchapter. Other generators are subject to Subchapter C of this chapter for the generation and accumulation of hazardous wastes, including hazardous waste pharmaceuticals.(g) Except as specified in this subsection and §335.4 of this title (relating to General Prohibitions), and unless the Commission finds or the executive director determines that industrial solid waste or recycling requirements are necessary to protect human health, the environment, or property, the following are not subject to this chapter:(1) pharmaceuticals that are not solid waste, as defined by §335.1 of this title (relating to Definitions), because they are legitimately used/reused (e.g., lawfully donated for their intended purpose) or reclaimed;(2) over-the-counter pharmaceuticals, dietary supplements, or homeopathic drugs that are not solid wastes, as defined in §335.1 of this title, because they have a reasonable expectation of being legitimately used/reused (e.g., lawfully redistributed for their intended purpose) or reclaimed;(3) pharmaceuticals being managed in accordance with a recall strategy that has been approved by the Food and Drug Administration (FDA) in accordance with 21 CFR Part 7, Subpart C, until the FDA approves the destruction of the pharmaceuticals or the pharmaceuticals are discarded;(4) pharmaceuticals being managed in accordance with a recall corrective action plan that has been accepted by the Consumer Product Safety Commission in accordance with 16 CFR Part 1115, until the Consumer Product Safety Commission approves the destruction of the recalled pharmaceuticals;(5) pharmaceuticals stored according to a preservation order, or stored in accordance with a litigation hold pursuant to an investigation or judicial proceeding until after the preservation order, investigation, or judicial proceeding has concluded or the pharmaceuticals are discarded;(6) investigational new drugs for which an investigational new drug application is in effect in accordance with the Food and Drug Administration's regulations in 21 CFR Part 312, until the decision is made to discard the investigational new drug or the Food and Drug Administration approves the destruction of the investigational new drug, if the investigational new drug is a hazardous waste; and(7) household waste pharmaceuticals, including those that have been collected by an authorized collector (as defined by the Drug Enforcement Administration), provided the authorized collector complies with the conditional exemption in §335.763(a)(2) and §335.763(b) of this title.(h) Healthcare facilities and reverse distributors regulated under this subchapter remain subject to Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste in General), Subchapter B of this chapter (relating to Hazardous Waste Management General Provisions), Subchapter O of this chapter (relating to Land Disposal Restrictions), and Subchapter R of this chapter (relating to Waste Classification), except as provided under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §335.753 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scW/s335.755"><num value="335.755">§335.755</num><heading>Standards for Healthcare Facilities Managing Non-Creditable Hazardous Waste Pharmaceuticals</heading><content>(a) Notification and withdrawal from this subchapter for healthcare facilities managing hazardous waste pharmaceuticals. A healthcare facility must notify the executive director that it is either subject to this subchapter, or is withdrawing from regulation under this subchapter, using the following procedures.(1) Notification. A healthcare facility must notify the executive director that it is a healthcare facility operating under this subchapter using a method approved by the executive director within 60 days of becoming subject to this chapter. The method approved by the executive director collects the information required by the United States Environmental Protection Agency (EPA) Site Identification Form.(A) A healthcare facility must submit a separate notification for each site or EPA identification number.(B) A healthcare facility is not required to submit EPA hazardous waste numbers with this notification.(C) A healthcare facility must retain a copy of a notification as long as the healthcare facility is subject to this subchapter.(2) Withdrawal. A healthcare facility that elects to withdraw from this subchapter because it is a very small quantity generator that meets the conditions for exemption for a very small quantity generator under 40 Code of Federal Regulations (CFR) §262.14 as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste) must notify the executive director that it elects to withdraw from this subchapter using a method approved by the executive director. A healthcare facility is not required to submit any EPA hazardous waste numbers with this notification. A healthcare facility must submit a separate notification for each site or EPA identification number.(A) A healthcare facility must submit the notification that it is withdrawing from this subchapter in accordance with this paragraph before it begins operating under the conditions for exemption of a very small quantity generator in 40 CFR §262.14 as adopted under §335.53 of this title.(B) A healthcare facility must retain a copy of a notification of withdrawal for three years from the date of the signature on the notification of withdrawal.(b) Training of personnel managing non-creditable hazardous waste pharmaceuticals at healthcare facilities. A healthcare facility must ensure that all personnel that manage non-creditable hazardous waste pharmaceuticals are thoroughly familiar with proper waste handling and emergency procedures relevant to their responsibilities during normal facility operations and emergencies.(c) Hazardous waste determination for non-creditable pharmaceuticals. A healthcare facility that generates a solid waste that is a non-creditable pharmaceutical must determine whether that pharmaceutical is a hazardous waste pharmaceutical by determining if it exhibits a characteristic identified in 40 CFR Part 261, Subpart C or is listed in 40 CFR Part 261, Subpart D as adopted under §335.504 of this title (relating to Hazardous Waste Determination) in order to determine whether the waste is subject to this subchapter. A healthcare facility may elect to manage its nonhazardous waste pharmaceuticals as non-creditable hazardous waste pharmaceuticals under this subchapter.(d) Standards for containers used to accumulate non-creditable hazardous waste pharmaceuticals at healthcare facilities. A healthcare facility must store containers containing non-creditable hazardous waste pharmaceuticals in accordance with the following container management standards.(1) Container requirements. A healthcare facility must place non-creditable hazardous waste pharmaceuticals in a container that is structurally sound, compatible with its contents, and that lacks evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions.(2) Ignitable, reactive, or incompatible wastes. A healthcare facility that manages ignitable or reactive non-creditable hazardous waste pharmaceuticals, or that mixes or commingles incompatible non-creditable hazardous waste pharmaceuticals must manage the container so that it does not have the potential to:(A) generate extreme heat or pressure, fire or explosion, or violent reaction;(B) produce uncontrolled toxic mists, fumes, dusts, or gases in sufficient quantities to threaten human health;(C) produce uncontrolled flammable fumes or gases in sufficient quantities to pose a risk of fire or explosions;(D) damage the structural integrity of the container of non-creditable hazardous waste pharmaceuticals; or(E) through other like means threaten human health or the environment.(3) Container security. A healthcare facility must keep containers of non-creditable hazardous waste pharmaceuticals closed and secured in a manner that prevents unauthorized access to its contents.(4) Accumulating non-creditable waste pharmaceuticals in the same container. A healthcare facility may accumulate non-creditable hazardous waste pharmaceuticals and nonhazardous non-creditable waste pharmaceuticals in the same container, except that non-creditable hazardous waste pharmaceuticals prohibited from being combusted because of the dilution prohibition of 40 CFR §268.3(c) as adopted under §335.431 of this title (relating to Purpose, Scope, and Applicability) must be accumulated in separate containers and labeled with all applicable EPA hazardous waste numbers.(e) Labeling containers used to accumulate non-creditable hazardous waste pharmaceuticals at healthcare facilities. A healthcare facility must label or clearly mark each container of non-creditable hazardous waste pharmaceuticals with the phrase "Hazardous Waste Pharmaceuticals."(f) Maximum accumulation time for non-creditable hazardous waste pharmaceuticals at healthcare facilities. A healthcare facility must observe the following standards for on-site accumulation time of non-creditable hazardous waste pharmaceuticals.(1) Maximum accumulation time. A healthcare facility may accumulate non-creditable hazardous waste pharmaceuticals on-site for one year or less without a permit or having interim status.(2) Accumulation start date. A healthcare facility that accumulates non-creditable hazardous waste pharmaceuticals on-site must demonstrate the length of time that the non-creditable hazardous waste pharmaceuticals have been accumulating, starting from the date it first becomes a waste. A healthcare facility may make this demonstration by any of the following methods:(A) marking or labeling the container of non-creditable hazardous waste pharmaceuticals with the date that the non-creditable hazardous waste pharmaceuticals became a waste;(B) maintaining an inventory system that identifies the date the non-creditable hazardous waste pharmaceuticals being accumulated first became a waste;(C) placing the non-creditable hazardous waste pharmaceuticals in a specific area and identifying the earliest date that any of the non-creditable hazardous waste pharmaceuticals in the area became a waste.(g) Land disposal restrictions for non-creditable hazardous waste pharmaceuticals. The non-creditable hazardous waste pharmaceuticals generated by a healthcare facility are subject to the land disposal restrictions of 40 CFR Part 268 as adopted under Subchapter O of this chapter (relating to Land Disposal Restrictions). A healthcare facility that generates non-creditable hazardous waste pharmaceuticals must comply with the land disposal restrictions in accordance with 40 CFR §268.7(a) requirements as adopted under §335.431 of this title, except that it is not required to include the EPA hazardous waste numbers on the land disposal restrictions notification.(h) Procedures for healthcare facilities for managing rejected shipments of non-creditable hazardous waste pharmaceuticals. A healthcare facility that sends a shipment of non-creditable hazardous waste pharmaceuticals to a designated facility with the understanding that the designated facility can accept and manage the waste, and later receives that shipment back as a rejected load in accordance with the manifest discrepancy provisions of 40 CFR §264.72 as adopted under §335.152 of this title (relating to Standards) or 40 CFR §265.72 as adopted under §335.112 of this title (relating to Standards) may accumulate the returned non-creditable hazardous waste pharmaceuticals on-site for up to an additional 90 days provided the rejected or returned shipment is managed in accordance with subsections (d) and (e) of this section. Upon receipt of the returned shipment, the healthcare facility must complete the following.(1) Healthcare facility manifest signature. The healthcare facility must sign either:(A) item 18c of the original manifest, if the original manifest was used for the returned shipment; or(B) item 20 of the new manifest, if a new manifest was used for the returned shipment.(2) Transporter manifest copy. The healthcare facility must provide the transporter a copy of the manifest used for the returned shipment.(3) Designated facility manifest copy. Within 30 days of receipt of the rejected shipment, the healthcare facility must send a copy of the manifest to the designated facility that returned the shipment to the healthcare facility; and(4) Maximum time to re-ship a rejected shipment. Within 90 days of receipt of the rejected shipment, the healthcare facility must transport or offer for transport the returned shipment in accordance with the shipping standards of §335.767(a) of this title (relating to Shipping Non-Creditable Hazardous Waste Pharmaceuticals from a Healthcare Facility or Evaluated Hazardous Waste Pharmaceuticals from a Reverse Distributor).(i) Reporting by healthcare facilities for non-creditable hazardous waste pharmaceuticals. A healthcare facility must comply with the following reporting requirements.(1) Biennial and annual waste reporting by healthcare facilities. A healthcare facility is not subject to the Annual Waste Summary reporting requirements under §335.9 of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators) or the biennial reporting requirements under 40 CFR §262.41 as adopted under §335.56 of this title (relating to Recordkeeping and Reporting Applicable to Small and Large Quantity Generators) for non-creditable hazardous waste pharmaceuticals managed under this subchapter.(2) Exception reporting by healthcare facilities for a missing copy of the manifest. A healthcare facility must submit an exception report to the executive director in the following situations.(A) For shipments from a healthcare facility to a designated facility, if a healthcare facility does not receive a copy of the manifest with the signature of the owner or operator of the designated facility within 60 days of the date the non-creditable hazardous waste pharmaceuticals were accepted by the initial transporter, the healthcare facility must submit:(i) a legible copy of the original manifest, indicating that the healthcare facility has not received confirmation of delivery, to the executive director; and(ii) a handwritten or typed note on the manifest itself, or on an attached sheet of paper, stating that the return copy was not received and explaining the efforts taken to locate the non-creditable hazardous waste pharmaceuticals and the results of those efforts.(B) For shipments rejected by the designated facility and shipped to an alternate facility, if a healthcare facility does not receive a copy of the manifest for a rejected shipment of the non-creditable hazardous waste pharmaceuticals that is forwarded by the designated facility to an alternate facility (using appropriate manifest procedures), with the signature of the owner or operator of the alternate facility, within 60 days of the date the non-creditable hazardous waste was accepted by the initial transporter forwarding the shipment of non-creditable hazardous waste pharmaceuticals from the designated facility to the alternate facility, the healthcare facility must submit:(i) a legible copy of the original manifest, indicating that the healthcare facility has not received confirmation of delivery, to the executive director; and(ii) a handwritten or typed note on the manifest itself, or on an attached sheet of paper, stating that the return copy was not received and explaining the efforts taken to locate the non-creditable hazardous waste pharmaceuticals and the results of those efforts.(3) Additional reports. The executive director may require a healthcare facility to furnish additional reports concerning the quantities and disposition of non-creditable hazardous waste pharmaceuticals.(j) Recordkeeping by healthcare facilities for non-creditable hazardous waste pharmaceuticals. A healthcare facility is subject to the following recordkeeping requirements.(1) Signed manifest retention. A healthcare facility must keep a copy of each manifest signed in accordance with 40 CFR §262.23(a) as adopted under §335.54 of this title (relating to Hazardous Waste Manifest) for three years or until it receives a signed copy from the designated facility which received the non-creditable hazardous waste pharmaceuticals. This signed copy must be retained as a record for at least three years from the date the waste was accepted by the initial transporter.(2) Exception report retention. A healthcare facility must keep a copy of each exception report for a period of at least three years from the date of the report.(3) Waste determination documentation retention. A healthcare facility must keep records of any test results, waste analyses, or other determinations made to support its hazardous waste determination(s) consistent with 40 CFR §262.11(f) as adopted under §335.53 of this title, for at least three years from the date the waste was last sent to on-site or off-site treatment, storage or disposal. A healthcare facility that manages all its non-creditable nonhazardous waste pharmaceuticals as non-creditable hazardous waste pharmaceuticals is not required to keep documentation of hazardous waste determinations.(4) Documentation retention extension. The periods of retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity, or as requested by the executive director.(5) Record inspections. All records must be readily available upon request by an inspector.(k) Response to spills of non-creditable hazardous waste pharmaceuticals at healthcare facilities. A healthcare facility must immediately contain all spills of non-creditable hazardous waste pharmaceuticals and manage the spill clean-up materials as non-creditable hazardous waste pharmaceuticals in accordance with the requirements of this subchapter.(l) Accepting non-creditable hazardous waste pharmaceuticals from an off-site healthcare facility that is a very small quantity generator. A healthcare facility may accept non-creditable hazardous waste pharmaceuticals from an off-site healthcare facility that is a very small quantity generator under 40 CFR §262.14 as adopted under §335.53 of this title, without a permit or without having interim status, if the receiving healthcare facility complies with the following.(1) Consolidating waste pharmaceuticals at another healthcare facility under the control of the same person. The healthcare facility must be under the control of the same person as the very small quantity generator healthcare facility that is sending the non-creditable hazardous waste pharmaceuticals off-site or has a contractual or other documented business relationship whereby the receiving healthcare facility supplies pharmaceuticals to the very small quantity generator healthcare facility. "Control," for the purposes of this section, means the power to direct the policies of the healthcare facility, whether by the ownership of stock, voting rights, or otherwise, except that contractors who operate healthcare facilities on behalf of a different person shall not be deemed to "control" such healthcare facilities.(2) Operating under this subchapter. The healthcare facility must be operating under this subchapter for the management of its non-creditable hazardous waste pharmaceuticals.(3) Compliance with this subchapter. The healthcare facility must manage the non-creditable hazardous waste pharmaceuticals that it receives from off-site in compliance with this subchapter.(4) Recordkeeping requirements. The healthcare facility must keep records of the non-creditable hazardous waste pharmaceuticals shipments it receives from off-site for three years from the date that the shipment is received.</content><note type="source"><p>Source Note: The provisions of this §335.755 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scW/s335.757"><num value="335.757">§335.757</num><heading>Standards for Healthcare Facilities Managing Potentially Creditable Hazardous Waste Pharmaceuticals</heading><content>(a) Hazardous waste determination for potentially creditable pharmaceuticals. A healthcare facility that generates a solid waste that is a potentially creditable pharmaceutical must determine whether the potentially creditable pharmaceutical is a potentially creditable hazardous waste pharmaceutical by determining if it is listed in 40 Code of Federal Regulations (CFR) Part 261, Subpart D or exhibits a characteristic identified in 40 CFR Part 261, Subpart C as adopted under §335.504 of this title (relating to Hazardous Waste Determination). A healthcare facility may choose to manage its potentially creditable nonhazardous waste pharmaceuticals as potentially creditable hazardous waste pharmaceuticals under this subchapter.(b) Accepting potentially creditable hazardous waste pharmaceuticals from an off-site healthcare facility that is a very small quantity generator. A healthcare facility may accept potentially creditable hazardous waste pharmaceuticals from an off-site healthcare facility that is a very small quantity generator under 40 CFR §262.14 as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste) without a permit or without having interim status, provided the receiving healthcare facility:(1) is under the control of the same person as the very small quantity generator healthcare facility that is sending the potentially creditable hazardous waste pharmaceuticals off-site, or has a contractual or other documented business relationship whereby the receiving healthcare facility supplies pharmaceuticals to the very small quantity generator healthcare facility;(2) is operating under this subchapter for the management of its potentially creditable hazardous waste pharmaceuticals;(3) manages the potentially creditable hazardous waste pharmaceuticals that it receives from off-site in compliance with this subchapter; and(4) keeps records of the potentially creditable hazardous waste pharmaceuticals shipments it receives from off-site for three years from the date that the shipment is received.(c) Prohibition. Healthcare facilities are prohibited from sending hazardous wastes other than potentially creditable hazardous waste pharmaceuticals to a reverse distributor.(d) Biennial and Annual Waste Summary reporting by healthcare facilities. A healthcare facility is not subject to the Annual Waste Summary reporting requirements under §335.9 of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators) or the biennial reporting requirements in 40 CFR §262.41 as adopted under §335.56 of this title (relating to Recordkeeping and Reporting Applicable to Small and Large Quantity Generators) for potentially creditable hazardous waste pharmaceuticals managed under this subchapter.(e) Recordkeeping by healthcare facilities. Healthcare facilities are subject to the following recordkeeping requirements for managing potentially creditable hazardous waste pharmaceuticals.(1) A healthcare facility that initiates a shipment of potentially creditable hazardous waste pharmaceuticals to a reverse distributor must keep the following records (paper or electronic) for each shipment of potentially creditable hazardous waste pharmaceuticals for three years from the date of shipment:(A) the confirmation of delivery; and(B) the shipping papers prepared in accordance with 49 CFR Part 172, Subpart C, if applicable.(2) The periods of retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity, or as requested by the executive director.(3) All records must be readily available upon request by an inspector.(f) Response to spills of potentially creditable hazardous waste pharmaceuticals at healthcare facilities. A healthcare facility must immediately contain all spills of potentially creditable hazardous waste pharmaceuticals and manage the spill clean-up materials as non-creditable hazardous waste pharmaceuticals in accordance with this subchapter.</content><note type="source"><p>Source Note: The provisions of this §335.757 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scW/s335.759"><num value="335.759">§335.759</num><heading>Healthcare Facilities That are Very Small Quantity Generators for Both Hazardous Waste Pharmaceuticals and Non-pharmaceutical Hazardous Waste</heading><content>(a) Potentially creditable hazardous waste pharmaceuticals. A healthcare facility that is a very small quantity generator for both hazardous waste pharmaceuticals and non-pharmaceutical hazardous waste may send its potentially creditable hazardous waste pharmaceuticals to a reverse distributor.(b) Off-site collection of hazardous waste pharmaceuticals generated by a healthcare facility that is a very small quantity generator. A healthcare facility that is a very small quantity generator for both hazardous waste pharmaceuticals and non-pharmaceutical hazardous waste may send its hazardous waste pharmaceuticals off-site to another healthcare facility, provided:(1) the receiving healthcare facility meets the conditions in §335.755(l) and §335.757(b) of this title (relating to Standards for Healthcare Facilities Managing Non-Creditable Hazardous Waste Pharmaceuticals; Standards for Healthcare Facilities Managing Potentially Creditable Hazardous Waste Pharmaceuticals), as applicable; or(2) the very small quantity generator healthcare facility meets the conditions in 40 Code of Federal Regulations (CFR) §262.14(a)(5)(viii) and the receiving large quantity generator meets the conditions in 40 CFR §262.17(f), both as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste).(c) Long-term care facilities that are very small quantity generators. A long-term care facility that is a very small quantity generator for both hazardous waste pharmaceuticals and non-pharmaceutical hazardous waste may dispose of its hazardous waste pharmaceuticals (excluding contaminated personal protective equipment or clean-up materials) in an on-site collection receptacle of an authorized collector (as defined by the Drug Enforcement Administration) that is registered with the Drug Enforcement Administration provided the contents are collected, stored, transported, destroyed and disposed of in compliance with all applicable Drug Enforcement Administration regulations for controlled substances.(d) Long-term care facilities with 20 beds or fewer. A long-term care facility with 20 beds or fewer is presumed to be a very small quantity generator subject to 40 CFR §262.14 as adopted under §335.53 of this title for both hazardous waste pharmaceuticals and non-pharmaceutical hazardous waste and not subject to this subchapter, except for §335.761 and §335.765 of this title (relating to Prohibition of Sewering Hazardous Waste Pharmaceuticals; and Residues of Hazardous Waste Pharmaceuticals in Empty Containers) and the other optional provisions of this section. A long-term care facility with 20 beds or fewer is subject to this subchapter if the executive director determines that the facility generates quantities of hazardous waste in excess of the very small quantity generator limits as defined in §335.1 of this title (relating to Definitions). A long-term care facility with more than 20 beds that operates as a very small quantity generator under 40 CFR §262.14 must demonstrate that it generates quantities of hazardous waste that are within the very small quantity generator limits as defined by §335.1 of this title.</content><note type="source"><p>Source Note: The provisions of this §335.759 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scW/s335.761"><num value="335.761">§335.761</num><heading>Prohibition of Sewering Hazardous Waste Pharmaceuticals</heading><content>All healthcare facilities--including very small quantity generators operating under 40 Code of Federal Regulations (CFR) §262.14 as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste) in lieu of this subchapter--and reverse distributors are prohibited from discharging hazardous waste pharmaceuticals to a sewer system that passes through to a publicly-owned treatment works. Healthcare facilities and reverse distributors remain subject to the prohibitions in 40 CFR §403.5(b)(1).</content><note type="source"><p>Source Note: The provisions of this §335.761 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scW/s335.763"><num value="335.763">§335.763</num><heading>Conditional Exemptions for Hazardous Waste Pharmaceuticals that are Controlled Substances and Household Waste Pharmaceuticals Collected in a Take-back Event or Program</heading><content>(a) Conditional exemptions. Provided the conditions of subsection (b) of this section are met, the following are exempted from the requirements of this chapter:(1) Hazardous waste pharmaceuticals that are also listed on a schedule of controlled substances by the Drug Enforcement Administration in 21 Code of Federal Regulations (CFR) Part 1308; and(2) Household waste pharmaceuticals that are collected in a take-back event or program, including those that are collected by an authorized collector (as defined by the Drug Enforcement Administration) registered with the Drug Enforcement Administration that commingles the household waste pharmaceuticals with controlled substances from an ultimate user (as defined by the Drug Enforcement Administration).(b) Conditions for exemption. The hazardous waste pharmaceuticals must be:(1) managed in compliance with the sewer prohibition of §335.761 of this title (relating to Prohibition of Sewering Hazardous Waste Pharmaceuticals);(2) collected, stored, transported, and disposed of in compliance with all applicable Drug Enforcement Administration regulations for controlled substances; and(3) destroyed by a method that Drug Enforcement Administration has publicly deemed in writing to meet their non-retrievable standard of destruction or combusted at one of the following:(A) a permitted large municipal waste combustor, subject to 40 CFR Part 62, Subpart FFF or applicable state plan for existing large municipal waste combustors, or 40 CFR Part 60, Subpart Eb for new large municipal waste combustors;(B) a permitted small municipal waste combustor, subject to 40 CFR Part 62, Subpart JJJ or applicable state plan for existing small municipal waste combustors, or 40 CFR Part 60, Subpart AAAA for new small municipal waste combustors;(C) a permitted hospital, medical and infectious waste incinerator, subject to 40 CFR Part 62, Subpart HHH or applicable state plan for existing hospital, medical and infectious waste incinerators, or 40 CFR Part 60, Subpart Ec for new hospital, medical and infectious waste incinerators;(D) a permitted commercial and industrial solid waste incinerator, subject to 40 CFR Part 62, Subpart III or applicable state plan for existing commercial and industrial solid waste incinerators, or 40 CFR Part 60, Subpart CCCC for new commercial and industrial solid waste incinerators; or(E) a permitted hazardous waste combustor subject to 40 CFR Part 63, Subpart EEE.</content><note type="source"><p>Source Note: The provisions of this §335.763 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scW/s335.765"><num value="335.765">§335.765</num><heading>Residues of Hazardous Waste Pharmaceuticals in Empty Containers</heading><content>(a) Stock, dispensing and unit-dose containers. A stock bottle, dispensing bottle, vial, or ampule (not to exceed 1 liter or 10,000 pills); or a unit-dose container (e.g., a unit-dose packet, cup, wrapper, blister pack, or delivery device) is considered empty and the residues are not regulated as hazardous waste provided the pharmaceuticals have been removed from the stock bottle, dispensing bottle, vial, ampule, or the unit-dose container using the practices commonly employed to remove materials from that type of container.(b) Syringes. A syringe is considered empty and the residues are not regulated as hazardous waste under this subchapter provided the contents have been removed by fully depressing the plunger of the syringe. If a syringe is not empty, the syringe must be placed with its remaining hazardous waste pharmaceuticals into a container that is managed and disposed of as a non-creditable hazardous waste pharmaceutical under this subchapter and any applicable federal, state, and local requirements for sharps containers and medical waste.(c) Intravenous (IV) bags. An IV bag is considered empty and the residues are not regulated as hazardous waste provided the pharmaceuticals in the IV bag have been fully administered to a patient. If an IV bag is not empty, the IV bag must be placed with its remaining hazardous waste pharmaceuticals into a container that is managed and disposed of as a non-creditable hazardous waste pharmaceutical under this subchapter, unless the IV bag held non-acute hazardous waste pharmaceuticals and is empty as described in §335.41(f) of this title (relating to Purpose, Scope, and Applicability).(d) Other containers, including delivery devices. Hazardous waste pharmaceuticals remaining in all other types of unused, partially administered, or fully administered containers must be managed as non-creditable hazardous waste pharmaceuticals under this subchapter, unless the container held non-acute hazardous waste pharmaceuticals and is empty as described in §335.41(f) of this title. This includes, but is not limited to, residues in inhalers, aerosol cans, nebulizers, tubes of ointments, gels, or creams.</content><note type="source"><p>Source Note: The provisions of this §335.765 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scW/s335.767"><num value="335.767">§335.767</num><heading>Shipping Non-Creditable Hazardous Waste Pharmaceuticals from a Healthcare Facility or Evaluated Hazardous Waste Pharmaceuticals from a Reverse Distributor</heading><content>(a) Shipping non-creditable hazardous waste pharmaceuticals or evaluated hazardous waste pharmaceuticals. A healthcare facility must ship non-creditable hazardous waste pharmaceuticals and a reverse distributor must ship evaluated hazardous waste pharmaceuticals off-site to a designated facility (such as a permitted or interim status treatment, storage, or disposal facility) in compliance with this subsection.(1) The healthcare facility and reverse distributor must comply with the pre-transport requirements in this paragraph before transporting or offering non-creditable hazardous waste pharmaceuticals or evaluated hazardous waste pharmaceuticals for transport off-site.(A) Packaging. Package the waste in accordance with the applicable Department of Transportation regulations on hazardous materials under 49 Code of Federal Regulations (CFR) Parts 173, 178, and 180.(B) Labeling. Label each package in accordance with the applicable Department of Transportation regulations on hazardous materials under 49 CFR Part 172, Subpart E.(C) Marking. Mark hazardous waste pharmaceuticals in accordance with this subparagraph. (i) Mark each package of hazardous waste pharmaceuticals in accordance with the applicable federal Department of Transportation (DOT) regulations on hazardous materials under 49 CFR Part 172, Subpart D.(ii) Mark each container of 119 gallons or less used in such transportation in accordance with 40 CFR §266.508(a)(1)(iii)(B) which is adopted by reference as adopted in the Federal Register on February 22, 2019 (84 FR 5940).(iii) Lab packs that will be incinerated in compliance with 40 CFR §268.42(c) as adopted under §335.431 of this title (relating to Purpose, Scope, and Applicability) are not required to be marked with EPA Hazardous Waste Number(s), except D004, D005, D006, D007, D008, D010, and D011, where applicable. A nationally recognized electronic system, such as bar coding or radio frequency identification, may be used to identify the EPA hazardous waste number(s).(D) Placarding. Placard or offer the initial transporter the appropriate placards according to Department of Transportation regulations for hazardous materials under 49 CFR Part 172, Subpart F.(2) The healthcare facility and reverse distributor must comply with the manifest requirements of 40 CFR Part 262, Subpart B as adopted under §335.54 of this title (relating to Hazardous Waste Manifest) and list a complete Texas waste code in Item 13 of the manifest), except:(A) a healthcare facility shipping non-creditable hazardous waste pharmaceuticals is not required to list all applicable EPA hazardous waste numbers in Item 13 of the manifest; and(B) a healthcare facility shipping non-creditable hazardous waste pharmaceuticals must use the four-letter sequence code "PHRM" in addition to the applicable Texas form code and classification code in Item 13 of the manifest. (b) Exporting non-creditable hazardous waste pharmaceuticals or evaluated hazardous waste pharmaceuticals. A healthcare facility or reverse distributor that exports non-creditable hazardous waste pharmaceuticals or evaluated hazardous waste pharmaceuticals is subject to 40 CFR Part 262, Subpart H, as adopted under §335.58 of this title (relating to Transboundary Movements of Hazardous Waste for Recovery or Disposal).(c) Importing non-creditable hazardous waste pharmaceuticals or evaluated hazardous waste pharmaceuticals. Any person that imports non-creditable hazardous waste pharmaceuticals or evaluated hazardous waste pharmaceuticals is subject to 40 CFR Part 262, Subpart H, as adopted by reference under §335.58 of this title, Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste in General), Subchapter B of this chapter (relating to Hazardous Waste Management General Provisions), Subchapter O of this chapter (relating to Land Disposal Restrictions), and Subchapter R of this chapter (relating to Waste Classification), except as provided under this subchapter. A healthcare facility or reverse distributor may not accept imported non-creditable hazardous waste pharmaceuticals or evaluated hazardous waste pharmaceuticals unless they have a permit or interim status that authorizes the owner or operator of the facility to accept hazardous waste from off-site.</content><note type="source"><p>Source Note: The provisions of this §335.767 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scW/s335.769"><num value="335.769">§335.769</num><heading>Shipping Potentially Creditable Hazardous Waste Pharmaceuticals from a Healthcare Facility or a Reverse Distributor to a Reverse Distributor</heading><content>(a) Shipping potentially creditable hazardous waste pharmaceuticals. A healthcare facility or a reverse distributor who transports or offers for transport potentially creditable hazardous waste pharmaceuticals off-site to a reverse distributor must comply with all applicable United States Department of Transportation regulations in 49 Code of Federal Regulations (CFR) Parts 171 - 180 for any potentially creditable hazardous waste pharmaceutical that meets the definition of hazardous material in 49 CFR §171.8. For purposes of the federal Department of Transportation regulations, a material is considered a hazardous waste if it is subject to the Hazardous Waste Manifest Requirements of the United States Environmental Protection Agency specified in 40 CFR Part 262 as adopted under Subchapter C of this title (relating to Standards Applicable to Generators of Hazardous Waste). Because a potentially creditable hazardous waste pharmaceutical does not require a manifest, it is not considered hazardous waste under the Department of Transportation regulations.(b) Delivery confirmation. Upon receipt of each shipment of potentially creditable hazardous waste pharmaceuticals, the receiving reverse distributor must provide confirmation (paper or electronic) to the healthcare facility or reverse distributor that initiated the shipment that the shipment of potentially creditable hazardous waste pharmaceuticals has arrived at its destination and is under the custody and control of the reverse distributor.(c) Procedures for when delivery confirmation is not received within 35 days. If a healthcare facility or reverse distributor initiates a shipment of potentially creditable hazardous waste pharmaceuticals to a reverse distributor and does not receive delivery confirmation within 35 calendar days from the date that the shipment of potentially creditable hazardous waste pharmaceuticals was sent, the healthcare facility or reverse distributor that initiated the shipment must contact the carrier and the intended recipient (i.e., the reverse distributor) promptly to report that the delivery confirmation was not received and to determine the status of the potentially creditable hazardous waste pharmaceuticals.(d) Exporting potentially creditable hazardous waste pharmaceuticals. A healthcare facility or reverse distributor that sends potentially creditable hazardous waste pharmaceuticals to a foreign destination must comply with the applicable sections of 40 CFR Part 262, Subpart H, as adopted under §335.58 of this title (relating to Transboundary Movements of Hazardous Waste for Recovery or Disposal), except the manifesting requirement of 40 CFR §262.83(c), in addition to subsections (a) - (c) of this section.(e) Importing potentially creditable hazardous waste pharmaceuticals. Any person that imports potentially creditable hazardous waste pharmaceuticals into the United States is subject to subsections (a) - (c) of this section instead of 40 CFR Part 262, Subpart H. Immediately after the potentially creditable hazardous waste pharmaceuticals enter the United States, they are subject to all applicable requirements of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §335.769 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c335/scW/s335.771"><num value="335.771">§335.771</num><heading>Standards for the Management of Potentially Creditable Hazardous Waste Pharmaceuticals and Evaluated Hazardous Waste Pharmaceuticals by Reverse Distributors</heading><content>(a) A reverse distributor may accept potentially creditable hazardous waste pharmaceuticals from off-site and accumulate potentially creditable hazardous waste pharmaceuticals or evaluated hazardous waste pharmaceuticals on-site without a hazardous waste permit or without having interim status, provided that it complies with the conditions in this section. The following standards apply to reverse distributors managing potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals.(1) Registration. A reverse distributor must register with the executive director in accordance with §335.6 of this title (relating to Notification Requirements) using a method approved by the executive director within 60 days of becoming subject to this chapter.(2) Inventory by the reverse distributor. A reverse distributor must maintain a current inventory of all the potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals that are accumulated on site.(A) A reverse distributor must inventory each potentially creditable hazardous waste pharmaceutical within 30 calendar days of each waste arriving at the reverse distributor.(B) The inventory must include the identity (e.g., name or national drug code) and quantity of each potentially creditable hazardous waste pharmaceutical and evaluated hazardous waste pharmaceutical.(C) A reverse distributor that meets the inventory requirements of this paragraph by complying with other regulatory requirements, such as the Texas State Board of Pharmacy regulations, is not required to provide a separate inventory pursuant to this section.(3) Evaluation by a reverse distributor that is not a manufacturer. A reverse distributor that is not a pharmaceutical manufacturer must evaluate a potentially creditable hazardous waste pharmaceutical within 30 calendar days of the waste arriving at the reverse distributor to establish whether it is destined for another reverse distributor for further evaluation or verification of manufacturer credit or for a permitted or interim status treatment, storage, or disposal facility.(A) A potentially creditable hazardous waste pharmaceutical that is destined for another reverse distributor is still considered a "potentially creditable hazardous waste pharmaceutical" and must be managed in accordance with subsection (b) of this section.(B) A potentially creditable hazardous waste pharmaceutical that is destined for a permitted or interim status treatment, storage or disposal facility is considered an "evaluated hazardous waste pharmaceutical" and must be managed in accordance with subsection (c) of this section.(4) Evaluation by a reverse distributor that is a manufacturer. A reverse distributor that is a pharmaceutical manufacturer must evaluate a potentially creditable hazardous waste pharmaceutical to verify manufacturer credit within 30 calendar days of the waste arriving at the facility. Following the evaluation, the reverse distributor must manage the evaluated hazardous waste pharmaceuticals in accordance with subsection (c) of this section.(5) Maximum accumulation time. The maximum accumulation time for hazardous waste pharmaceuticals at a reverse distributor is outlined in subparagraphs (A) and (B) of this paragraph.(A) A reverse distributor may accumulate potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals on site for 180 calendar days or less. The 180 days start after the potentially creditable hazardous waste pharmaceutical has been evaluated and applies to all hazardous waste pharmaceuticals accumulated on site, regardless of whether they are destined for another reverse distributor (i.e., potentially creditable hazardous waste pharmaceuticals) or a permitted or interim status treatment, storage, or disposal facility (i.e., evaluated hazardous waste pharmaceuticals).(B) Unexpired pharmaceuticals that are otherwise creditable but are awaiting their expiration date (i.e., aging in a holding morgue) can be accumulated for up to 180 days after the expiration date, provided that the unexpired pharmaceuticals are managed in accordance with subsection (a) of this section and the container labeling and management standards in §335.771(c)(4)(A) - (F).(6) Security at the reverse distributor facility. A reverse distributor must prevent unknowing entry and minimize the possibility for the unauthorized entry into the portion of the facility where potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals are kept.(A) Examples of methods that may be used to prevent unknowing entry and minimize the possibility for unauthorized entry include, but are not limited to:(i) a 24-hour continuous monitoring surveillance system;(ii) an artificial barrier such as a fence; or(iii) a means to control entry, such as keycard access.(B) If the reverse distributor already meets the security requirements of this subsection because of other regulatory requirements, such as Drug Enforcement Administration or Texas State Board of Pharmacy regulations, the facility is not required to provide separate security measures pursuant to this section.(7) Contingency plan and emergency procedures at a reverse distributor. A reverse distributor that accepts potentially creditable hazardous waste pharmaceuticals from off-site must prepare a contingency plan and comply with the other requirements of 40 Code of Federal Regulations (CFR) Part 262, Subpart M as adopted under §335.61 of this title (relating to Preparedness, Prevention, and Emergency Procedures for Large Quantity Generators).(8) Closure of a reverse distributor. When closing an area where a reverse distributor accumulates potentially creditable hazardous waste pharmaceuticals or evaluated hazardous waste pharmaceuticals, the reverse distributor must comply with §335.8 of this title (relating to Closure and Remediation) and 40 CFR §262.17(a)(8)(ii) and (iii) as adopted under §335.53 of this title (relating to General Standards Applicable to Generators of Hazardous Waste).(9) Reporting. Reverse distributors are subject to the following reporting requirements.(A) A reverse distributor must submit an unauthorized waste report if the reverse distributor receives waste from off-site that it is not authorized to receive (e.g., non-pharmaceutical hazardous waste, regulated medical waste). The reverse distributor must prepare and submit an unauthorized waste report to the executive director within 45 calendar days after the unauthorized waste arrives at the reverse distributor and must send a copy of the unauthorized waste report to the healthcare facility (or other entity) that sent the unauthorized waste. The reverse distributor must manage the unauthorized waste in accordance with all applicable regulations. The unauthorized waste report must be signed by the owner or operator of the reverse distributor, or its authorized representative, and contain the following information:(i) the United States Environmental Protection Agency (EPA) identification number, name and address of the reverse distributor;(ii) the date the reverse distributor received the unauthorized waste;(iii) the EPA identification number, name, and address of the healthcare facility that shipped the unauthorized waste, if available;(iv) a description and the quantity of each unauthorized waste the reverse distributor received;(v) the method of treatment, storage, or disposal for each unauthorized waste; and(vi) a brief explanation of why the waste was unauthorized, if known.(B) The executive director may require reverse distributors to furnish additional reports concerning the quantities and disposition of potentially creditable hazardous waste pharmaceuticals and evaluated hazardous waste pharmaceuticals.(10) Recordkeeping by reverse distributors. A reverse distributor must keep the following records (paper or electronic) readily available upon request by an inspector. The periods of retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity, or as requested by the executive director.(A) A copy of its notification on file for as long as the facility is subject to this subchapter;(B) A copy of the delivery confirmation and the shipping papers for each shipment of potentially creditable hazardous waste pharmaceuticals that it receives, and a copy of each unauthorized waste report, for at least three years from the date the shipment arrives at the reverse distributor;(C) A copy of its current inventory for as long as the facility is subject to this subchapter.(b) Additional standards for reverse distributors managing potentially creditable hazardous waste pharmaceuticals destined for another reverse distributor. A reverse distributor that does not have a permit or interim status must comply with the following conditions, in addition to the requirements in subsection (a) of this section, for the management of potentially creditable hazardous waste pharmaceuticals that are destined for another reverse distributor for further evaluation or verification of manufacturer credit:(1) A reverse distributor that receives potentially creditable hazardous waste pharmaceuticals from a healthcare facility must send those potentially creditable hazardous waste pharmaceuticals to another reverse distributor within 180 days after the potentially creditable hazardous waste pharmaceuticals have been evaluated or follow subsection (c) of this section for evaluated hazardous waste pharmaceuticals.(2) A reverse distributor that receives potentially creditable hazardous waste pharmaceuticals from another reverse distributor must send those potentially creditable hazardous waste pharmaceuticals to a reverse distributor that is a pharmaceutical manufacturer within 180 days after the potentially creditable hazardous waste pharmaceuticals have been evaluated or follow subsection (c) of this section for evaluated hazardous waste pharmaceuticals.(3) A reverse distributor must ship potentially creditable hazardous waste pharmaceuticals destined for another reverse distributor in accordance with §335.769 of this title (relating to Shipping Potentially Creditable Hazardous Waste Pharmaceuticals from a Healthcare Facility or a Reverse Distributor to a Reverse Distributor).(4) Recordkeeping by reverse distributors. A reverse distributor must keep the following records (paper or electronic) readily available upon request by an inspector for each shipment of potentially creditable hazardous waste pharmaceuticals that it initiates to another reverse distributor, for at least three years from the date of shipment. The periods of retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity, or as requested by the executive director.(A) The confirmation of delivery; and(B) The DOT shipping papers prepared in accordance with 49 CFR Part 172, Subpart C, if applicable.(c) Additional standards for reverse distributors managing evaluated hazardous waste pharmaceuticals. A reverse distributor that does not have a permit or interim status must comply with the following conditions, in addition to the requirements of subsection (a) of this section, for the management of evaluated hazardous waste pharmaceuticals:(1) Accumulation area at the reverse distributor. A reverse distributor must designate an on-site accumulation area where it will accumulate evaluated hazardous waste pharmaceuticals.(2) Inspections of on-site accumulation area. A reverse distributor must inspect its on-site accumulation area at least once every seven days, looking at containers for leaks and for deterioration caused by corrosion or other factors, as well as for signs of diversion.(3) Personnel training at a reverse distributor. Personnel at a reverse distributor that handle evaluated hazardous waste pharmaceuticals are subject to the training requirements of 40 CFR §262.17(a)(7) as adopted under §335.53 of this title.(4) Labeling and management of containers at on-site accumulation areas. A reverse distributor accumulating evaluated hazardous waste pharmaceuticals in containers in an on-site accumulation area must:(A) label the containers with the words, "hazardous waste pharmaceuticals";(B) ensure the containers are in good condition and managed to prevent leaks;(C) use containers that are made of or lined with materials which will not react with, and are otherwise compatible with, the evaluated hazardous waste pharmaceuticals, so that the ability of the container to contain the waste is not impaired;(D) keep containers closed, if holding liquid or gel evaluated hazardous waste pharmaceuticals. If the liquid or gel evaluated hazardous waste pharmaceuticals are in their original, intact, sealed packaging; or repackaged, intact, sealed packaging, they are considered to meet the closed container standard;(E) manage any container of ignitable or reactive evaluated hazardous waste pharmaceuticals, or any container of commingled incompatible evaluated hazardous waste pharmaceuticals so that the container does not have the potential to:(i) generate extreme heat or pressure, fire or explosion, or violent reaction;(ii) produce uncontrolled toxic mists, fumes, dusts, or gases in sufficient quantities to threaten human health;(iii) produce uncontrolled flammable fumes or gases in sufficient quantities to pose a risk of fire or explosions;(iv) damage the structural integrity of the container of hazardous waste pharmaceuticals; or(v) through other like means threaten human health or the environment; and(F) Accumulate evaluated hazardous waste pharmaceuticals that are prohibited from being combusted because of the dilution prohibition of 40 CFR §268.3(c) as adopted under §335.431 of this title (relating to Purpose, Scope, and Applicability) (e.g., arsenic trioxide (P012)) in separate containers from other evaluated hazardous waste pharmaceuticals at the reverse distributor.(5) United States Environmental Protection Agency (EPA) hazardous waste numbers. Prior to shipping evaluated hazardous waste pharmaceuticals off-site, all containers must be marked with the applicable EPA hazardous waste numbers. A nationally recognized electronic system, such as bar coding or radio frequency identification, may be used to identify the EPA hazardous waste number(s).(6) Shipments. A reverse distributor must ship evaluated hazardous waste pharmaceuticals that are destined for a permitted or interim status treatment, storage or disposal facility in accordance with the applicable shipping standards in §335.767(a) or (b) of this title (relating to Shipping Non-Creditable Hazardous Waste Pharmaceuticals from a Healthcare Facility or Evaluated Hazardous Waste Pharmaceuticals from a Reverse Distributor).(7) Procedures for a reverse distributor for managing rejected shipments. A reverse distributor that sends a shipment of evaluated hazardous waste pharmaceuticals to a designated facility with the understanding that the designated facility can accept and manage the waste, and later receives that shipment back as a rejected load in accordance with the manifest discrepancy provisions of 40 CFR §264.72 as adopted under §335.152 of this title (relating to Standards) or 40 CFR §265.72 as adopted under §335.112 of this title (relating to Standards) may accumulate the returned evaluated hazardous waste pharmaceuticals on site for up to an additional 90 days in the on-site accumulation area provided the rejected or returned shipment is managed in accordance with subsection (a) or (c) of this section. Upon receipt of the returned shipment, the reverse distributor must:(A) Sign either:(i) item 18c of the original manifest, if the original manifest was used for the returned shipment; or(ii) item 20 of the new manifest, if a new manifest was used for the returned shipment;(B) Provide the transporter a copy of the manifest;(C) Within 30 days of receipt of the rejected shipment of the evaluated hazardous waste pharmaceuticals, send a copy of the manifest to the designated facility that returned the shipment to the reverse distributor; and(D) Within 90 days of receipt of the rejected shipment, transport or offer for transport the returned shipment of evaluated hazardous waste pharmaceuticals in accordance with the applicable shipping standards of §335.767(a) or (b) of this title.(8) Land disposal restrictions. Evaluated hazardous waste pharmaceuticals are subject to the land disposal restrictions of 40 CFR Part 268 as adopted under Subchapter O of this chapter (relating to Land Disposal Restrictions). A reverse distributor that accepts potentially creditable hazardous waste pharmaceuticals from off-site must comply with the land disposal restrictions in accordance with 40 CFR §268.7(a) as adopted under §335.431 of this title (relating to Purpose, Scope, and Applicability).(9) Reporting by a reverse distributor for evaluated hazardous waste pharmaceuticals. Reverse distributors are subject to the following reporting requirements.(A) A reverse distributor that ships evaluated hazardous waste pharmaceuticals off-site must:(i) comply with the reporting requirements of §335.9 of this title (relating to Recordkeeping and Annual Reporting Procedures Applicable to Generators), and(ii) in every even-numbered year, submit supplemental biennial reporting information for the previous odd-numbered report year required by 40 CFR §262.41 as adopted by reference under §335.56 of this title (relating to Recordkeeping and Reporting Applicable to Small and Large Quantity Generators), upon request, in a method approved by the executive director within the specified timeframe. Information submitted to the executive director in accordance with Subchapter A of this chapter (relating to Industrial Solid Waste and Municipal Hazardous Waste in General), Subchapter C of this chapter (relating to Standards Applicable to Generators of Hazardous Waste), and Subchapter R of this chapter (relating to Waste Classification) is not required to be resubmitted in a biennial report.(B) If a reverse distributor does not receive a copy of the manifest with the signature of the owner or operator of the designated facility within 35 days of the date the evaluated hazardous waste pharmaceuticals were accepted by the initial transporter, the reverse distributor must contact the transporter or the owner or operator of the designated facility to determine the status of the evaluated hazardous waste pharmaceuticals.(C) A reverse distributor must submit an exception report to the executive director if it has not received a copy of the manifest with the signature of the owner or operator of the designated facility within 45 days of the date the evaluated hazardous waste pharmaceutical was accepted by the initial transporter. The exception report must include:(i) a legible copy of the manifest for which the reverse distributor does not have confirmation of delivery; and(ii) a cover letter signed by the reverse distributor, or its authorized representative, explaining the efforts taken to locate the evaluated hazardous waste pharmaceuticals and the results of those efforts.(D) For shipments rejected by the designated facility and shipped to an alternate facility, a reverse distributor that does not receive a copy of the manifest with the signature of the owner or operator of the alternate facility within 35 days of the date the evaluated hazardous waste pharmaceuticals were accepted by the initial transporter must contact the transporter or the owner or operator of the alternate facility to determine the status of the hazardous waste. The 35-day time frame begins the date the evaluated hazardous waste pharmaceuticals are accepted by the transporter forwarding the hazardous waste shipment from the designated facility to the alternate facility.(E) For shipments rejected by the designated facility and shipped to an alternate facility, a reverse distributor must submit an exception report to the executive director if it has not received a copy of the manifest with the signature of the owner or operator of the alternate facility within 45 days of the date the evaluated hazardous waste pharmaceuticals were accepted by the initial transporter. The 45-day time frame begins the date the evaluated hazardous waste pharmaceuticals are accepted by the transporter forwarding the hazardous waste pharmaceutical shipment from the designated facility to the alternate facility. The exception report must include:(i) A legible copy of the manifest for which the generator does not have confirmation of delivery; and(ii) A cover letter signed by the reverse distributor, or its authorized representative, explaining the efforts taken to locate the evaluated hazardous waste pharmaceuticals and the results of those efforts.(10) Recordkeeping by a reverse distributor for evaluated hazardous waste pharmaceuticals. Reverse distributors are subject to the following recordkeeping requirements.(A) A reverse distributor must keep a log (written or electronic) of the inspections of the on-site accumulation area, required by subsection (c)(2) of this section. This log must be retained as a record for at least three years from the date of the inspection.(B) A reverse distributor must keep a copy of each manifest signed in accordance with 40 CFR §262.23(a) as adopted under §335.54 of this title (relating to Hazardous Waste Manifest) for three years or until it receives a signed copy from the designated facility that received the evaluated hazardous waste pharmaceutical. This signed copy must be retained as a record for at least three years from the date the evaluated hazardous waste pharmaceutical was accepted by the initial transporter.(C) A reverse distributor must keep a copy of each report required by subparagraph (9)(A) of this subsection for at least three years from the due date of the report.(D) A reverse distributor must keep a copy of each exception report for at least three years from the submission of the report.(E) A reverse distributor must keep records to document personnel training, in accordance with 40 CFR §262.17(a)(7)(iv) as adopted under §335.53 of this title.(F) All records must be readily available upon request by an inspector. The periods of retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity, or as requested by the executive director.(d) When a reverse distributor must have a permit. A reverse distributor is an operator of a hazardous waste treatment, storage, or disposal facility and is subject to the permitting and other requirements of this chapter if the reverse distributor:(1) does not meet the conditions of this section;(2) accepts manifested hazardous waste from off-site; or(3) treats or disposes of hazardous waste pharmaceuticals on-site.</content><note type="source"><p>Source Note: The provisions of this §335.771 adopted to be effective February 3, 2022, 47 TexReg 318.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c336"><num value="336">CHAPTER 336</num><heading>RADIOACTIVE SUBSTANCE RULES</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c336/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c336/scA/s336.1"><num value="336.1">§336.1</num><heading>Scope and General Provisions</heading><content>(a) Except as otherwise specifically provided, the rules in this chapter apply to all persons who dispose of radioactive substances; all persons who recover or process source material; and all persons who receive radioactive substances from other persons for storage or processing.(1) However, nothing in these rules shall apply to any person to the extent that person is subject to regulation by the United States Nuclear Regulatory Commission (NRC) or to radioactive material in the possession of federal agencies.(2) Any United States Department of Energy contractor or subcontractor or any NRC contractor or subcontractor of the following categories operating within the state, is exempt from the rules in this chapter, with the exception of any applicable fee set forth in Subchapter B of this chapter (relating to Radioactive Substance Fees), to the extent that such contractor or subcontractor under his contract receives, possesses, uses, transfers, or acquires sources of radiation:(A) prime contractors performing work for the United States Department of Energy at a United States government-owned or controlled site, including the transportation of radioactive material to or from the site and the performance of contract services during temporary interruptions of transportation;(B) prime contractors of the United States Department of Energy performing research in or development, manufacture, storage, testing, or transportation of atomic weapons or components thereof;(C) prime contractors of the United States Department of Energy using or operating nuclear reactors or other nuclear devices in a United States government-owned vehicle or vessel; and(D) any other prime contractor or subcontractor of the United States Department of Energy or the NRC when the state and the NRC jointly determine that:(i) the exemption of the prime contractor or subcontractor is authorized by law; and(ii) under the terms of the contract or subcontract, there is adequate assurance that the work thereunder can be accomplished without undue risk to the public health and safety or the environment.(3) Radioactive material that is physically received from the federal government by a non-federal facility is subject to state jurisdiction except as provided in paragraph (2) of this subsection.(4) The rules of this chapter do not apply to transportation of radioactive materials. This provision does not exempt a transporter from other applicable requirements.(5) The rules in this chapter do not apply to the disposal of radiation machines as defined in this subchapter or electronic devices that produce non-ionizing radiation.(b) Regulation by the State of Texas of source material, by-product material, and special nuclear material in quantities not sufficient to form a critical mass is subject to the provisions of the agreement between the State of Texas and the NRC and to 10 Code of Federal Regulations Part 150 (10 CFR Part 150) (Exemptions and Continued Regulatory Authority in Agreement States and in Offshore Waters Under Section 274). (A copy of the Texas agreement, "Articles of Agreement between the United States Nuclear Regulatory Commission and the State of Texas for Discontinuance of Certain Commission Regulatory Authority and Responsibility Within the State Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended" (Agreement), may be obtained from this commission.) Under the Agreement and 10 CFR Part 150, the NRC retains certain regulatory authorities over source material, by-product material, and special nuclear material in the State of Texas. Persons in the State of Texas are not exempt from the regulatory requirements of the NRC with respect to these retained authorities.(c) No person may receive, possess, use, transfer, or dispose of radioactive material, which is subject to the rules in this chapter, in such a manner that the standards for protection against radiation prescribed in these rules are exceeded.(d) Each person licensed by the commission under this chapter shall confine possession, use, and disposal of licensed radioactive material to the locations and purposes authorized in the license.(e) No person may cause or allow the release of radioactive material, which is subject to the rules in this chapter, to the environment in violation of this chapter or of any rule, license, or order of the Texas Commission on Environmental Quality (commission).(f) No person shall:(1) dispose of low-level radioactive waste on site, except as authorized under §336.501(b) of this title (relating to Scope and General Provisions);(2) receive low-level radioactive waste from other persons for the purpose of disposal, except for a person specifically licensed for the disposal of low-level radioactive waste;(3) dispose of radioactive materials other than low-level radioactive waste, except for diffuse naturally occurring radioactive material waste having concentrations of less than 2,000 picocuries per gram (pCi/g) radium-226 or radium-228;(4) dispose of radioactive materials from other persons other than low-level radioactive waste, except for naturally occurring radioactive material waste in accordance with Subchapter K of this chapter (relating to Commercial Disposal of Naturally Occurring Radioactive Material Waste from Public Water Systems);(5) recover or process source material, except in accordance with Subchapter L of this chapter (relating to Licensing of Source Material Recovery and By-Product Material Disposal Facilities);(6) store, process, or dispose of by-product material, except in accordance with Subchapter L of this chapter; or(7) receive radioactive substances from other persons for storage or processing, except in accordance with Subchapter M of this chapter (relating to Licensing of Radioactive Substances Processing and Storage Facilities).</content><note type="source"><p>Source Note: The provisions of this §336.1 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 3, 1998, 23 TexReg 8837; amended to be effective September 14, 2000, 25 TexReg 8989; amended to be effective January 8, 2004, 29 TexReg 150; amended to be effective July 21, 2005, 30 TexReg 4127; amended to be effective February 28, 2008, 33 TexReg 1570; amended to be effective March 12, 2009, 34 TexReg 1688; amended to be effective February 2, 2012, 37 TexReg 335.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scA/s336.2"><num value="336.2">§336.2</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, or as described in Chapter 3 of this title (relating to Definitions), unless the context clearly indicates otherwise. Additional definitions used only in a certain subchapter will be found in that subchapter.(1) Absorbed dose--The energy imparted by ionizing radiation per unit mass of irradiated material. The units of absorbed dose are the rad and the gray (Gy ).(2) Accelerator-produced radioactive material--Any material made radioactive by a particle accelerator.(3) Access control--A system for allowing only approved individuals to have unescorted access to the security zone and for ensuring that all other individuals are subject to escorted access.(4) Activity--The rate of disintegration (transformation) or decay of radioactive material. The units of activity are the curie (Ci) and the becquerel (Bq).(5) Adult--An individual 18 or more years of age.(6) Aggregated--Accessible by the breach of a single physical barrier that allows access to radioactive material in any form, including any devices containing the radioactive material, when the total activity equals or exceeds a category 2 quantity of radioactive material.(7) Agreement state--Any state with which the United States Nuclear Regulatory Commission (NRC) or the Atomic Energy Commission has entered into an effective agreement under the Atomic Energy Act of 1954, §274b, as amended. Non-agreement State means any other State.(8) Airborne radioactive material--Any radioactive material dispersed in the air in the form of dusts, fumes, particulates, mists, vapors, or gases.(9) Airborne radioactivity area--A room, enclosure, or area in which airborne radioactive materials, composed wholly or partly of licensed material, exist in concentrations:(A) in excess of the derived air concentrations (DACs) specified in Table I of §336.359(d) of this title (relating to Appendix B. Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage); or(B) to a degree that an individual present in the area without respiratory protective equipment could exceed, during the hours an individual is present in a week, an intake of 0.6% of the ALI or 12 DAC-hours.(10) Air-purifying respirator--A respirator with an air-purifying filter, cartridge, or canister that removes specific air contaminants by passing ambient air through the air-purifying element.(11) Annual limit on intake (ALI)--The derived limit for the amount of radioactive material taken into the body of an adult worker by inhalation or ingestion in a year. ALI is the smaller value of intake of a given radionuclide in a year by the "reference man" that would result in a committed effective dose equivalent of 5 rems (0.05 sievert) or a committed dose equivalent of 50 rems (0.5 sievert) to any individual organ or tissue. ALI values for intake by ingestion and by inhalation of selected radionuclides are given in Table I, Columns 1 and 2 of §336.359(d) of this title (relating to Appendix B. Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage).(12) Approved individual--An individual whom the licensee has determined to be trustworthy and reliable for unescorted access in accordance with §336.357(b) - (h) of this title (relating to Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material) and who has completed the training required by §336.357(j)(3) of this title.(13) As low as is reasonably achievable--Making every reasonable effort to maintain exposures to radiation as far below the dose limits in this chapter as is practical, consistent with the purpose for which the licensed activity is undertaken, taking into account the state of technology, the economics of improvements in relation to the state of technology, the economics of improvements in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in relation to utilization of ionizing radiation and licensed radioactive materials in the public interest.(14) Assigned protection factor (APF)--The expected workplace level of respiratory protection that would be provided by a properly functioning respirator or a class of respirators to properly fitted and trained users. Operationally, the inhaled concentration can be estimated by dividing the ambient airborne concentration by the APF.(15) Atmosphere-supplying respirator--A respirator that supplies the respirator user with breathing air from a source independent of the ambient atmosphere, and includes supplied-air respirators and self-contained breathing apparatus units.(16) Background investigation--The investigation conducted by a licensee or applicant to support the determination of trustworthiness and reliability.(17) Background radiation--Radiation from cosmic sources; non-technologically enhanced naturally-occurring radioactive material, including radon (except as a decay product of source or special nuclear material) and global fallout as it exists in the environment from the testing of nuclear explosive devices or from past nuclear accidents such as Chernobyl that contribute to background radiation and are not under the control of the licensee. "Background radiation" does not include radiation from radioactive materials regulated by the commission, Texas Department of State Health Services, United States Nuclear Regulatory Commission, or an Agreement State.(18) Becquerel (Bq)--See §336.4 of this title (relating to Units of Radioactivity).(19) Bioassay--The determination of kinds, quantities, or concentrations, and, in some cases, the locations of radioactive material in the human body, whether by direct measurement (in vivo counting) or by analysis and evaluation of materials excreted or removed from the human body. For purposes of the rules in this chapter, "radiobioassay" is an equivalent term.(20) By-product material--(A) a radioactive material, other than special nuclear material, that is produced in or made radioactive by exposure to radiation incident to the process of producing or using special nuclear material;(B) the tailings or wastes produced by or resulting from the extraction or concentration of uranium or thorium from ore processed primarily for its source material content, including discrete surface wastes resulting from uranium solution extraction processes, and other tailings having similar radiological characteristics. Underground ore bodies depleted by these solution extraction processes do not constitute "by-product material" within this definition;(C) any discrete source of radium-226 that is produced, extracted, or converted after extraction, for use for a commercial, medical, or research activity;(D) any material that has been made radioactive by use of a particle accelerator, and is produced, extracted, or converted for use for a commercial, medical, or research activity; and(E) any discrete source of naturally occurring radioactive material, other than source material, that is extracted or converted after extraction for use in a commercial, medical, or research activity and that the United States Nuclear Regulatory Commission, in consultation with the Administrator of the United States Environmental Protection Agency, the United States Secretary of Energy, the United States Secretary of Homeland Security, and the head of any other appropriate Federal agency, determines would pose a threat similar to the threat posed by a discrete source of radium-226 to the public health and safety or the common defense and security.(21) CFR--Code of Federal Regulations.(22) Carrier--A person engaged in the transportation of passengers or property by land or water as a common, contract, or private carrier, or by civil aircraft.(23) Category 1 quantity of radioactive material--A quantity of radioactive material meeting or exceeding the category 1 threshold in accordance with §336.357(z) of this title (relating to Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material). This is determined by calculating the ratio of the total activity of each radionuclide to the category 1 threshold for that radionuclide and adding the ratios together. If the sum is equal to or exceeds 1, the quantity would be considered a category 1 quantity. Category 1 quantities of radioactive material do not include the radioactive material contained in any fuel assembly, subassembly, fuel rod, or fuel pellet.(24) Category 2 quantity of radioactive material--A quantity of radioactive material meeting or exceeding the category 2 threshold but less than the category 1 threshold in accordance with §336.357(z) of this title (relating to Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material). This is determined by calculating the ratio of the total activity of each radionuclide to the category 2 threshold for that radionuclide and adding the ratios together. If the sum is equal to or exceeds 1, the quantity would be considered a category 2. Category 2 quantities of radioactive material do not include the radioactive material contained in any fuel assembly, subassembly, fuel rod, or fuel pellet.(25) Class--A classification scheme for inhaled material according to its rate of clearance from the pulmonary region of the lung. Materials are classified as D, W, or Y, which applies to a range of clearance half-times: for Class D (Days) of less than ten days, for Class W (Weeks) from 10 to 100 days, and for Class Y (Years) of greater than 100 days. For purposes of the rules in this chapter, "lung class" and "inhalation class" are equivalent terms.(26) Collective dose--The sum of the individual doses received in a given period of time by a specified population from exposure to a specified source of radiation.(27) Committed dose equivalent (HT , 50) (CDE)--The dose equivalent to organs or tissues of reference (T) that will be received from an intake of radioactive material by an individual during the 50-year period following the intake.(28) Committed effective dose equivalent (HE ,50) (CEDE)--The sum of the products of the weighting factors applicable to each of the body organs or tissues that are irradiated and the committed dose equivalent to each of these organs or tissues.(29) Compact--The Texas Low-Level Radioactive Waste Disposal Compact established under Texas Health and Safety Code, §403.006 and Texas Low-Level Radioactive Waste Disposal Compact Consent Act, Public Law Number 105-236 (1998).(30) Compact waste--Low-level radioactive waste that:(A) is generated in a host state or a party state; or(B) is not generated in a host state or a party state, but has been approved for importation to this state by the compact commission under §3.05 of the compact established under Texas Health and Safety Code, §403.006.(31) Compact waste disposal facility--The low-level radioactive waste land disposal facility licensed by the commission under Subchapter H of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste) for the disposal of compact waste.(32) Constraint (dose constraint)--A value above which specified licensee actions are required.(33) Critical group--The group of individuals reasonably expected to receive the greatest exposure to residual radioactivity for any applicable set of circumstances.(34) Curie (Ci)--See §336.4 of this title (relating to Units of Radioactivity).(35) Declared pregnant woman--A woman who has voluntarily informed the licensee, in writing, of her pregnancy and the estimated date of conception. The declaration remains in effect until the declared pregnant woman withdraws the declaration in writing or is no longer pregnant.(36) Decommission--To remove (as a facility) safely from service and reduce residual radioactivity to a level that permits:(A) release of the property for unrestricted use and termination of license; or(B) release of the property under restricted conditions and termination of the license.(37) Deep-dose equivalent (Hd) (which applies to external whole-body exposure)--The dose equivalent at a tissue depth of one centimeter (1,000 milligrams/square centimeter).(38) Demand respirator--An atmosphere-supplying respirator that admits breathing air to the facepiece only when a negative pressure is created inside the facepiece by inhalation.(39) Depleted uranium--The source material uranium in which the isotope uranium-235 is less than 0.711%, by weight, of the total uranium present. Depleted uranium does not include special nuclear material.(40) Derived air concentration (DAC)--The concentration of a given radionuclide in air which, if breathed by the "reference man" for a working year of 2,000 hours under conditions of light work (inhalation rate of 1.2 cubic meters of air/hour), results in an intake of one ALI. DAC values are given in Table I, Column 3, of §336.359(d) of this title (relating to Appendix B. Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage).(41) Derived air concentration-hour (DAC-hour)--The product of the concentration of radioactive material in air (expressed as a fraction or multiple of the derived air concentration for each radionuclide) and the time of exposure to that radionuclide, in hours. A licensee shall take 2,000 DAC-hours to represent one, equivalent to a committed effective dose equivalent of 5 rems (0.05 sievert).(42) Discrete source--A radionuclide that has been processed so that its concentration within a material has been purposely increased for use for commercial, medical, or research activities.(43) Disposal--With regard to low-level radioactive waste, the isolation or removal of low-level radioactive waste from mankind and mankind's environment without intent to retrieve that low-level radioactive waste later.(44) Disposable respirator--A respirator for which maintenance is not intended and that is designed to be discarded after excessive breathing resistance, sorbent exhaustion, physical damage, or end-of-service-life renders it unsuitable for use. Examples of this type of respirator are a disposable half-mask respirator or a disposable escape-only Self-Contained breathing apparatus.(45) Distinguishable from background--The detectable concentration of a radionuclide is statistically different from the background concentration of that radionuclide in the vicinity of the site or, in the case of structures, in similar materials using adequate measurement technology, survey, and statistical techniques.(46) Diversion--The unauthorized movement of radioactive material subject to §336.357 of this title (relating to Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material) to a location different from the material's authorized destination inside or outside of the site at which the material is used or stored.(47) Dose--A generic term that means absorbed dose, dose equivalent, effective dose equivalent, committed dose equivalent, committed effective dose equivalent, total organ dose equivalent, or total effective dose equivalent. For purposes of the rules in this chapter, "radiation dose" is an equivalent term.(48) Dose equivalent (HT )--The product of the absorbed dose in tissue, quality factor, and all other necessary modifying factors at the location of interest. The units of dose equivalent are the rem and sievert (Sv ). (49) Dose limits--The permissible upper bounds of radiation doses established in accordance with the rules in this chapter. For purposes of the rules in this chapter, "limits" is an equivalent term.(50) Dosimetry processor--An individual or organization that processes and evaluates individual monitoring devices in order to determine the radiation dose delivered to the monitoring devices.(51) Effective dose equivalent (HE )--The sum of the products of the dose equivalent to each organ or tissue (HT ) and the weighting factor (wT ) applicable to each of the body organs or tissues that are irradiated.(52) Embryo/fetus--The developing human organism from conception until the time of birth.(53) Entrance or access point--Any opening through which an individual or extremity of an individual could gain access to radiation areas or to licensed radioactive materials. This includes portals of sufficient size to permit human access, irrespective of their intended use.(54) Environmental Radiation and Perpetual Care Account--An account in the general revenue fund established for the purposes specified in the Texas Health and Safety Code, §401.306.(55) Escorted access--Accompaniment while in a security zone by an approved individual who maintains continuous direct visual surveillance at all times over an individual who is not approved for unescorted access.(56) Exposure--Being exposed to ionizing radiation or to radioactive material.(57) Exposure rate--The exposure per unit of time.(58) External dose--That portion of the dose equivalent received from any source of radiation outside the body.(59) Extremity--Hand, elbow, arm below the elbow, foot, knee, and leg below the knee. The arm above the elbow and the leg above the knee are considered part of the whole body.(60) Federal facility waste--Low-level radioactive waste that is the responsibility of the federal government under the Low-Level Radioactive Waste Policy Act, as amended by the Low-Level Radioactive Waste Policy Amendments Act of 1985 (42 United States Code, §2021b - 2021j). Excluded from this definition is low-level radioactive waste that is classified as greater than Class C in §336.362 of this title (relating to Appendix E. Classification and Characteristics of Low-Level Radioactive Waste).(61) Federal facility waste disposal facility--A low-level radioactive waste land disposal facility for the disposal of federal facility waste licensed under Subchapters H and J of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste, and Federal Facility Waste Disposal Facility).(62) Filtering facepiece (dust mask)--A negative pressure particulate respirator with a filter as an integral part of the facepiece or with the entire facepiece composed of the filtering medium, not equipped with elastomeric sealing surfaces and adjustable straps.(63) Fingerprint Orders--Orders issued by the Nuclear Regulatory Commission or the legally binding requirements issued by Agreement States that require fingerprints and criminal history records checks for individuals with unescorted access to category 1 and category 2 quantities of radioactive material or safeguards information-modified handling.(64) Fit factor--A quantitative estimate of the fit of a particular respirator to a specific individual, and typically estimates the ratio of the concentration of a substance in ambient air to its concentration inside the respirator when worn.(65) Fit test--The use of a protocol to qualitatively or quantitatively evaluate the fit of a respirator on an individual.(66) General license--An authorization granted by an agency under its rules which is effective without the filing of an application with that agency or the issuance of a licensing document to the particular person.(67) Generally applicable environmental radiation standards--Standards issued by the EPA under the authority of the Atomic Energy Act of 1954, as amended through October 4, 1996, that impose limits on radiation exposures or levels, or concentrations or quantities of radioactive material, in the general environment outside the boundaries of locations under the control of persons possessing or using radioactive material.(68) Gray (Gy )--See §336.3 of this title (relating to Units of Radiation Exposure and Dose).(69) Hazardous waste--Hazardous waste as defined in §335.1 of this title (relating to Definitions).(70) Helmet--A rigid respiratory inlet covering that also provides head protection against impact and penetration.(71) High radiation area--An area, accessible to individuals, in which radiation levels from radiation sources external to the body could result in an individual receiving a dose equivalent in excess of 0.1 rem (1 millisievert) in one hour at 30 centimeters from the radiation source or 30 centimeters from any surface that the radiation penetrates.(72) Hood--A respiratory inlet covering that completely covers the head and neck and may also cover portions of the shoulders and torso.(73) Host state--A party state in which a compact facility is located or is being developed. The state of Texas is the host state under the Texas Low-Level Radioactive Waste Disposal Compact, §2.01, established under Texas Health and Safety Code, §403.006.(74) Individual--Any human being.(75) Individual monitoring--The assessment of:(A) dose equivalent by the use of individual monitoring devices;(B) committed effective dose equivalent by bioassay or by determination of the time-weighted air concentrations to which an individual has been exposed, that is, derived air concentration-hour; or(C) dose equivalent by the use of survey data.(76) Individual monitoring devices--Devices designed to be worn by a single individual for the assessment of dose equivalent such as film badges, thermoluminescence dosimeters, pocket ionization chambers, and personal ("lapel") air sampling devices.(77) Inhalation class--See "Class."(78) Inspection--An official examination and/or observation including, but not limited to, records, tests, surveys, and monitoring to determine compliance with the Texas Radiation Control Act and rules, orders, and license conditions of the commission.(79) Internal dose--That portion of the dose equivalent received from radioactive material taken into the body.(80) Land disposal facility--The land, buildings and structures, and equipment which are intended to be used for the disposal of low-level radioactive wastes into the subsurface of the land. For purposes of this chapter, a "geologic repository" as defined in 10 Code of Federal Regulations §60.2 as amended through October 27, 1988 (53 FR 43421) (relating to Definitions - high-level radioactive wastes in geologic repositories) is not considered a "land disposal facility."(81) Lens dose equivalent (LDE)--The external exposure of the lens of the eye and is taken as the dose equivalent at a tissue depth of 0.3 centimeter (300 mg/cm2 ).(82) License--See "Specific license."(83) Licensed material--Radioactive material received, possessed, used, processed, transferred, or disposed of under a license issued by the commission.(84) Licensee--Any person who holds a license issued by the commission in accordance with the Texas Health and Safety Code, Chapter 401 (Radioactive Materials and Other Sources of Radiation) and the rules in this chapter. For purposes of the rules in this chapter, "radioactive material licensee" is an equivalent term. Unless stated otherwise, "licensee" as used in the rules of this chapter means the holder of a "specific license."(85) Licensing state--Any state with rules equivalent to the Suggested State Regulations for Control of Radiation relating to, and having an effective program for, the regulatory control of naturally occurring or accelerator-produced radioactive material (NARM) and which has been designated as such by the Conference of Radiation Control Program Directors, Inc.(86) Local law enforcement agency (LLEA)--A public or private organization that has been approved by a federal, state, or local government to carry firearms; make arrests; and is authorized and has the capability to provide an armed response in the jurisdiction where the licensed category 1 or category 2 quantity of radioactive material is used, stored, or transported.(87) Loose-fitting facepiece--A respiratory inlet covering that is designed to form a partial seal with the face.(88) Lost or missing licensed radioactive material--Licensed material whose location is unknown. This definition includes material that has been shipped but has not reached its planned destination and whose location cannot be readily traced in the transportation system.(89) Low-level radioactive waste--(A) Except as provided by subparagraph (B) of this paragraph, low-level radioactive waste means radioactive material that:(i) is discarded or unwanted and is not exempt by a Texas Department of State Health Services rule adopted under the Texas Health and Safety Code, §401.106;(ii) is waste, as that term is defined by 10 Code of Federal Regulations (CFR) §61.2; and(iii) is subject to:(I) concentration limits established under this chapter; and(II) disposal criteria established under this chapter.(B) Low-level radioactive waste does not include:(i) high-level radioactive waste defined by 10 CFR §60.2; (ii) spent nuclear fuel as defined by 10 CFR §72.3;(iii) transuranic waste as defined in this section;(iv) by-product material as defined by paragraph (20)(B) - (E) of this section;(v) naturally occurring radioactive material (NORM) waste; or(vi) oil and gas NORM waste.(C) When used in this section, the references to 10 CFR sections mean those CFR sections as they existed on September 1, 1999, as required by Texas Health and Safety Code, §401.005.(90) Lung class--See "Class."(91) Member of the public--Any individual except when that individual is receiving an occupational dose.(92) Minor--An individual less than 18 years of age.(93) Mixed waste--A combination of hazardous waste, as defined in §335.1 of this title (relating to Definitions) and low-level radioactive waste. The term includes compact waste and federal facility waste containing hazardous waste.(94) Mobile device--A piece of equipment containing licensed radioactive material that is either mounted on wheels or casters, or otherwise equipped for moving without a need for disassembly or dismounting; or designed to be hand carried. Mobile devices do not include stationary equipment installed in a fixed location.(95) Monitoring--The measurement of radiation levels, radioactive material concentrations, surface area activities, or quantities of radioactive material and the use of the results of these measurements to evaluate potential exposures and doses. For purposes of the rules in this chapter, "radiation monitoring" and "radiation protection monitoring" are equivalent terms.(96) Movement control center--An operations center that is remote from transport activity and that maintains position information on the movement of radioactive material, receives reports of attempted attacks or thefts, provides a means for reporting these and other problems to appropriate agencies and can request and coordinate appropriate aid.(97) Nationally tracked source--A sealed source containing a quantity equal to or greater than category 1 or category levels of any radioactive material listed in §336.351 of this title (relating to Reports of Transactions Involving Nationally Tracked Sources). In this context a sealed source is defined as radioactive material that is sealed in a capsule or closely bonded, in a solid form and which is not exempt from regulatory control. It does not mean material encapsulated solely for disposal, or nuclear material contained in any fuel assembly, subassembly, fuel rod, or fuel pellet. Category 1 nationally tracked sources are those containing radioactive material at a quantity equal to or greater than the category 1 threshold. Category 2 nationally tracked sources are those containing radioactive material at a quantity equal to or greater than the category 2 threshold but less than the category 1 threshold.(98) Naturally occurring or accelerator-produced radioactive material (NARM)--Any NARM except source material or special nuclear material.(99) Naturally occurring radioactive material (NORM) waste--Solid, liquid, or gaseous material or combination of materials, excluding source material, special nuclear material, and by-product material, that:(A) in its natural physical state spontaneously emits radiation;(B) is discarded or unwanted; and(C) is not exempt under rules of the Texas Department of State Health Services adopted under Texas Health and Safety Code, §401.106. (100) Near-surface disposal facility--A land disposal facility in which low-level radioactive waste is disposed of in or within the upper 30 meters of the earth's surface.(101) Negative pressure respirator (tight fitting)--A respirator in which the air pressure inside the facepiece is negative during inhalation with respect to the ambient air pressure outside the respirator.(102) No-later-than arrival time--The date and time that the shipping licensee and receiving licensee have established as the time an investigation will be initiated if the shipment has not arrived at the receiving facility. The no-later-than arrival time may not be more than six hours after the estimated arrival time for shipments of category 2 quantities of radioactive material.(103) Nonstochastic effect--A health effect, the severity of which varies with the dose and for which a threshold is believed to exist. Radiation-induced cataract formation is an example of a nonstochastic effect. For purposes of the rules in this chapter, "deterministic effect" is an equivalent term.(104) Occupational dose--The dose received by an individual in the course of employment in which the individual's assigned duties involve exposure to radiation and/or to radioactive material from licensed and unlicensed sources of radiation, whether in the possession of the licensee or other person. Occupational dose does not include dose received from background radiation, as a patient from medical practices, from voluntary participation in medical research programs, or as a member of the public.(105) Oil and gas naturally occurring radioactive material (NORM) waste--NORM waste that constitutes, is contained in, or has contaminated oil and gas waste as that term is defined in the Texas Natural Resources Code, §91.1011.(106) On-site--The same or geographically contiguous property that may be divided by public or private rights-of-way, provided the entrance and exit between the properties is at a cross-roads intersection, and access is by crossing, as opposed to going along, the right-of-way. Noncontiguous properties owned by the same person but connected by a right-of-way that the property owner controls and to which the public does not have access, is also considered on-site property.(107) Particle accelerator--Any machine capable of accelerating electrons, protons, deuterons, or other charged particles in a vacuum and discharging the resultant particulate or other associated radiation at energies usually in excess of 1 million electron volts (MeV).(108) Party state--Any state that has become a party to the compact in accordance with Article VII of the Texas Low-Level Radioactive Waste Disposal Compact, established under Texas Health and Safety Code, §403.006.(109) Perpetual care account--The Environmental Radiation and Perpetual Care Account as defined in this section.(110) Personnel monitoring equipment--See "Individual monitoring devices."(111) Planned special exposure--An infrequent exposure to radiation, separate from and in addition to the annual occupational dose limits.(112) Positive pressure respirator--A respirator in which the pressure inside the respiratory inlet covering exceeds the ambient air pressure outside the respirator.(113) Powered air-purifying respirator (PAPR)--An air-purifying respirator that uses a blower to force the ambient air through air-purifying elements to the inlet covering.(114) Pressure demand respirator--A positive pressure atmosphere-supplying respirator that admits breathing air to the facepiece when the positive pressure is reduced inside the facepiece by inhalation. (115) Principal activities--Activities authorized by the license which are essential to achieving the purpose(s) for which the license is issued or amended. Storage during which no licensed material is accessed for use or disposal and activities incidental to decontamination or decommissioning are not principal activities.(116) Public dose--The dose received by a member of the public from exposure to radiation and/or radioactive material released by a licensee, or to any other source of radiation under the control of the licensee. It does not include occupational dose or doses received from background radiation, as a patient from medical practices, or from voluntary participation in medical research programs.(117) Qualitative fit test (QLFT)--A pass/fail test to assess the adequacy of respirator fit that relies on the individual's response to the test agent.(118) Quality factor (Q)--The modifying factor listed in Table I or II of §336.3(c) or (d) of this title (relating to Units of Radiation Exposure and Dose) that is used to derive dose equivalent from absorbed dose.(119) Quantitative fit test (QNFT)--An assessment of the adequacy of respirator fit by numerically measuring the amount of leakage into the respirator.(120) Quarter (Calendar quarter)--A period of time equal to one-fourth of the year observed by the licensee (approximately 13 consecutive weeks), providing that the beginning of the first quarter in a year coincides with the starting date of the year and that no day is omitted or duplicated in consecutive quarters.(121) Rad--See §336.3 of this title (relating to Units of Radiation Exposure and Dose).(122) Radiation--Alpha particles, beta particles, gamma rays, x-rays, neutrons, high-speed electrons, high-speed protons, and other particles capable of producing ions. For purposes of the rules in this chapter, "ionizing radiation" is an equivalent term. Radiation, as used in this chapter, does not include non-ionizing radiation, such as radio- or microwaves or visible, infrared, or ultraviolet light.(123) Radiation area--Any area, accessible to individuals, in which radiation levels could result in an individual receiving a dose equivalent in excess of 0.005 rem (0.05 millisievert) in one hour at 30 centimeters from the source of radiation or from any surface that the radiation penetrates.(124) Radiation machine--Any device capable of producing ionizing radiation except those devices with radioactive material as the only source of radiation.(125) Radioactive material--A naturally-occurring or artificially-produced solid, liquid, or gas that emits radiation spontaneously. (126) Radioactive substance--Includes by-product material, radioactive material, low-level radioactive waste, source material, special nuclear material, source of radiation, and naturally occurring radioactive material (NORM) NORM waste, excluding oil and gas NORM waste.(127) Radioactivity--The disintegration of unstable atomic nuclei with the emission of radiation.(128) Radiobioassay--See "Bioassay."(129) Reference man--A hypothetical aggregation of human physical and physiological characteristics determined by international consensus. These characteristics shall be used by researchers and public health workers to standardize results of experiments and to relate biological insult to a common base. A description of "reference man" is contained in the International Commission on Radiological Protection (ICRP) report, ICRP Publication 23, "Report of the Task Group on Reference Man."(130) Rem--See §336.3 of this title (relating to Units of Radiation Exposure and Dose).(131) Residual radioactivity--Radioactivity in structures, materials, soils, groundwater, and other media at a site resulting from activities under the licensee's control. This includes radioactivity from all licensed and unlicensed sources used by the licensee, but excludes background radiation. It also includes radioactive materials remaining at the site as a result of routine or accidental releases of radioactive material at the site and previous burials at the site, even if those burials were made in accordance with the provisions of 10 Code of Federal Regulations Part 20.(132) Respiratory protection equipment--An apparatus, such as a respirator, used to reduce an individual's intake of airborne radioactive materials. For purposes of the rules in this chapter, "respiratory protective device" is an equivalent term.(133) Restricted area--An area, access to which is limited by the licensee for the purpose of protecting individuals against undue risks from exposure to radiation and radioactive materials. Restricted area does not include areas used as residential quarters, but separate rooms in a residential building shall be set apart as a restricted area.(134) Reviewing official--The individual who shall make the trustworthiness and reliability determination of an individual to determine whether the individual may have, or continue to have, unescorted access to the category 1 or category 2 quantities of radioactive materials that are possessed by the licensee.(135) Roentgen (R)--See §336.3 of this title (relating to Units of Radiation Exposure and Dose).(136) Sabotage--Deliberate damage, with malevolent intent, to a category 1 or category 2 quantity of radioactive material, a device that contains a category 1 or category 2 quantity of radioactive material, or the components of the security system.(137) Safe haven--A readily recognizable and readily accessible site at which security is present or from which, in the event of an emergency, the transport crew can notify and wait for the local law enforcement authorities.(138) Sanitary sewerage--A system of public sewers for carrying off waste water and refuse, but excluding sewage treatment facilities, septic tanks, and leach fields owned or operated by the licensee.(139) Sealed source--Radioactive material that is permanently bonded or fixed in a capsule or matrix designed to prevent release and dispersal of the radioactive material under the most severe conditions that are likely to be encountered in normal use and handling.(140) Security zone--Any temporary or permanent area established by the licensee for the physical protection of category 1 or category 2 quantities of radioactive material.(141) Self-contained breathing apparatus (SCBA)--An atmosphere-supplying respirator for which the breathing air source is designed to be carried by the user.(142) Shallow-dose equivalent (Hs ) (which applies to the external exposure of the skin of the whole body or the skin of an extremity)--The dose equivalent at a tissue depth of 0.007 centimeter (seven milligrams/square centimeter).(143) SI--The abbreviation for the International System of Units.(144) Sievert (Sv )--See §336.3 of this title (relating to Units of Radiation Exposure and Dose).(145) Site boundary--That line beyond which the land or property is not owned, leased, or otherwise controlled by the licensee. (146) Source material--(A) uranium or thorium, or any combination thereof, in any physical or chemical form; or(B) ores that contain, by weight, 0.05% or more of uranium, thorium, or any combination thereof. Source material does not include special nuclear material.(147) Special form radioactive material--Radioactive material which is either a single solid piece or is contained in a sealed capsule that can be opened only by destroying the capsule and which has at least one dimension not less than five millimeters and which satisfies the test requirements of 10 Code of Federal Regulations §71.75 as amended through September 28, 1995 (60 FR 50264) (Transportation of License Material).(148) Special nuclear material--(A) plutonium, uranium-233, uranium enriched in the isotope 233 or in the isotope 235, and any other material that the National Regulatory Commission, under the provisions of the Atomic Energy Act of 1954, §51, as amended through November 2, 1994 (Public Law 103-437), determines to be special nuclear material, but does not include source material; or(B) any material artificially enriched by any of the foregoing, but does not include source material.(149) Special nuclear material in quantities not sufficient to form a critical mass--Uranium enriched in the isotope 235 in quantities not exceeding 350 grams of contained uranium-235; uranium-233 in quantities not exceeding 200 grams; plutonium in quantities not exceeding 200 grams; or any combination of these in accordance with the following formula: For each kind of special nuclear material, determine the ratio between the quantity of that special nuclear material and the quantity specified in this paragraph for the same kind of special nuclear material. The sum of such ratios for all of the kinds of special nuclear material in combination shall not exceed 1. For example, the following quantities in combination would not exceed the limitation: (175 grams contained U-235/350 grams) + (50 grams U-233/200 grams) + (50 grams Pu/200 grams) = 1.(150) Specific license--A licensing document issued by an agency upon an application filed under its rules. For purposes of the rules in this chapter, "radioactive material license" is an equivalent term. Unless stated otherwise, "license" as used in this chapter means a "specific license."(151) State--The state of Texas.(152) Stochastic effect--A health effect that occurs randomly and for which the probability of the effect occurring, rather than its severity, is assumed to be a linear function of dose without threshold. Hereditary effects and cancer incidence are examples of stochastic effects. For purposes of the rules in this chapter, "probabilistic effect" is an equivalent term.(153) Supplied-air respirator (SAR) or airline respirator--An atmosphere-supplying respirator for which the source of breathing air is not designed to be carried by the user.(154) Survey--An evaluation of the radiological conditions and potential hazards incident to the production, use, transfer, release, disposal, and/or presence of radioactive materials or other sources of radiation. When appropriate, this evaluation includes, but is not limited to, physical examination of the location of radioactive material and measurements or calculations of levels of radiation or concentrations or quantities of radioactive material present.(155) Telemetric position monitoring system--A data transfer system that captures information from instrumentation and/or measuring devices about the location and status of a transport vehicle or package between the departure and destination locations.(156) Termination--As applied to a license, a release by the commission of the obligations and authorizations of the licensee under the terms of the license. It does not relieve a person of duties and responsibilities imposed by law.(157) Tight-fitting facepiece--A respiratory inlet covering that forms a complete seal with the face.(158) Total effective dose equivalent (TEDE)--The sum of the effective dose equivalent (for external exposures) and the committed effective dose equivalent (for internal exposures).(159) Total organ dose equivalent (TODE)--The sum of the deep-dose equivalent and the committed dose equivalent to the organ receiving the highest dose as described in §336.346(a)(6) of this title (relating to Records of Individual Monitoring Results).(160) Transuranic waste--For the purposes of this chapter, wastes containing alpha emitting transuranic radionuclides with a half-life greater than five years at concentrations greater than 100 nanocuries/gram.(161) Trustworthiness and reliability--Characteristics of an individual considered dependable in judgment, character, and performance, such that unescorted access to category 1 or category 2 quantities of radioactive material by that individual does not constitute an unreasonable risk to the public health and safety or security. A determination of trustworthiness and reliability for this purpose is based upon the results from a background investigation.(162) Type A quantity (for packaging)--A quantity of radioactive material, the aggregate radioactivity of which does not exceed A 1 for special form radioactive material or A2 for normal form radioactive material, where A1 and A2 are given in or shall be determined by procedures in Appendix A to 10 Code of Federal Regulations Part 71 as amended through September 28, 1995 (60 FR 50264) (Packaging and Transportation of Radioactive Material).(163) Type B quantity (for packaging)--A quantity of radioactive material greater than a Type A quantity.(164) Unescorted access--Solitary access to an aggregated category 1 or category 2 quantity of radioactive material or the devices that contain the material.(165) Unrefined and unprocessed ore--Ore in its natural form before any processing, such as grinding, roasting, beneficiating, or refining.(166) Unrestricted area--Any area that is not a restricted area.(167) User seal check (fit check)--An action conducted by the respirator user to determine if the respirator is properly seated to the face. Examples include negative pressure check, positive pressure check, irritant smoke check, or isoamyl acetate check.(168) Very high radiation area--An area, accessible to individuals, in which radiation levels from radiation sources external to the body could result in an individual receiving an absorbed dose in excess of 500 rads (five grays) in one hour at one meter from a source of radiation or one meter from any surface that the radiation penetrates.(169) Violation--An infringement of any provision of the Texas Radiation Control Act (TRCA) or of any rule, order, or license condition of the commission issued under the TRCA or this chapter.(170) Waste--Low-level radioactive wastes containing source, special nuclear, or by-product material that are acceptable for disposal in a land disposal facility. For the purposes of this definition, low-level radioactive waste means radioactive waste not classified as high-level radioactive waste, transuranic waste, spent nuclear fuel, or by-product material as defined in paragraph (20)(B) - (E) of this section.(171) Week--Seven consecutive days starting on Sunday.(172) Weighting factor (wT) for an organ or tissue (T)--The proportion of the risk of stochastic effects resulting from irradiation of that organ or tissue to the total risk of stochastic effects when the whole body is irradiated uniformly. For calculating the effective dose equivalent, the values of wT are:Attached Graphic(173) Whole body--For purposes of external exposure, head, trunk including male gonads, arms above the elbow, or legs above the knee.(174) Worker--An individual engaged in activities under a license issued by the commission and controlled by a licensee, but does not include the licensee.(175) Working level (WL)--Any combination of short-lived radon daughters in one liter of air that will result in the ultimate emission of 1.3 x 105 MeV of potential alpha particle energy. The short-lived radon daughters are: for radon-222: polonium-218, lead-214, bismuth-214, and polonium-214; and for radon-220: polonium-216, lead-212, bismuth-212, and polonium-212.(176) Working level month (WLM)--An exposure to one working level for 170 hours (2,000 working hours per year divided by 12 months per year is approximately equal to 170 hours per month).(177) Year--The period of time beginning in January used to determine compliance with the provisions of the rules in this chapter. The licensee shall change the starting date of the year used to determine compliance by the licensee provided that the change is made at the beginning of the year and that no day is omitted or duplicated in consecutive years.</content><note type="source"><p>Source Note: The provisions of this §336.2 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 3, 1998, 23 TexReg 8837; amended to be effective September 14, 2000, 25 TexReg 8989; amended to be effective August 30, 2001, 26 TexReg 6309; amended to be effective January 8, 2004, 29 TexReg 150; amended to be effective February 2, 2012, 37 TexReg 335; amended to be effective June 25, 2015, 40 TexReg 3996; amended to be effective December 31, 2015, 40 TexReg 9701; amended to be effective December 8, 2016, 41 TexReg 9583; amended to be effective December 11, 2024, 49 TexReg 10003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scA/s336.3"><num value="336.3">§336.3</num><heading>Units of Radiation Exposure and Dose</heading><content>(a) As used in the rules in this chapter, the International System of Units (SI) unit of exposure is the coulomb/kilogram (C/kg) of air. The special unit of exposure is the roentgen. One roentgen equals 2.58 x 10-4 coulomb/kilogram of air. (b) As used in the rules in this chapter, the units of radiation dose are as follows: (1) Rad is the special unit of absorbed dose. One rad is equal to an absorbed dose of 100 ergs/gram or 0.01 joule/kilogram (0.01 gray).(2) Gray (Gy) is the SI unit of absorbed dose. One gray is equal to an absorbed dose of 1 joule/kilogram (100 rads). (3) Rem is the special unit of any of the quantities expressed as dose equivalent. The dose equivalent in rem is equal to the absorbed dose in rad multiplied by the quality factor (1 rem = 0.01 sievert). (4) Sievert (Sv) is the SI unit of any of the quantities expressed as dose equivalent. The dose equivalent in sievert is equal to the absorbed dose in gray multiplied by the quality factor (1 sievert = 100 rems). (c) As used in the rules in this chapter, the quality factors for converting absorbed dose to dose equivalent are shown in Table I.Attached Graphic(d) If it is more convenient to measure the neutron fluence rate than to determine the neutron dose equivalent rate in rem/hour or sievert/hour, as provided in subsection (c) of this section, 1 rem (0.01 sievert) of neutron radiation of unknown energies may, for purposes of the rules in this chapter, be assumed to result from a total fluence of 25 million neutrons/square centimeter incident upon the body. If sufficient information exists to estimate the approximate energy distribution of the neutrons, the licensee may use the fluence rate per unit dose equivalent or the appropriate Q value from Table II to convert a measured tissue dose in rad (gray) to dose equivalent in rem (sievert).Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.3 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scA/s336.4"><num value="336.4">§336.4</num><heading>Units of Radioactivity</heading><content>For purposes of the rules in this chapter, activity is expressed in the special unit of curie (Ci) or in the International System of Units unit of becquerel (Bq), or its multiples, or disintegrations (transformations) per unit of time, as follows:(1) One curie (Ci) = 3.7 x 1010 disintegrations or transformations/second (dps or tps) = 3.7 x 1010 becquerel (Bq) = 2.22 x 1012 disintegrations or transformations/minute (dpm or tpm). Commonly used submultiples of the curie are as follows. One millicurie (mCi) = 1 x 10-3 Ci = 3.7 x 107 dps. One microcurie (microCi) = 1 x 10-6 Ci = 3.7 x 104 dps. One nanocurie (nCi) = 1 x 10-9 Ci = 3.7 x 10 dps. One picocurie (pCi) = 1 x 10-12 Ci = 3.7 x 10-2 dps. (2) One becquerel (Bq) = 1 disintegration or transformation/second (dps or tps).</content><note type="source"><p>Source Note: The provisions of this §336.4 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scA/s336.5"><num value="336.5">§336.5</num><heading>Exemptions</heading><content>(a) The commission may exempt a source of radiation or a kind of use or user from the application of a rule in this chapter if it determines that the exemption is not prohibited by law and will not result in a significant risk to public health and safety or the environment. Persons requesting an exemption shall submit an application to the agency using the process in Chapter 90 of this title (relating to Regulatory Flexibility), including the submittal of any fees and which includes:(1) the nature of the request;(2) a legal analysis to demonstrate that the exemption is not prohibited by law;(3) a technical analysis to demonstrate that the exemption will not result in a significant risk to public health and safety or the environment; and(4) a detailed explanation, including a demonstration as appropriate, that the proposed exemption is:(A) not prohibited by law, including any requirement for a federally approved or authorized program; and(B) at least as protective of the environment and the public health as the method or standard prescribed by the commission rule that would otherwise apply.(b) A person who is subject to an order issued under Texas Health and Safety Code, §361.188 or §361.272, for sites subject to Texas Health and Safety Code, Subchapter F, Chapter 361, or an agreement entered into under Texas Health and Safety Code, §361.606, is exempt from the requirement to obtain a license or other authorization from the commission. This provision does not exempt the person from complying with technical standards under this chapter. The exemption applies only to the assessment and remediation of the contamination at the site.(c) Waste, that is exempted from licensing requirements under Texas Health and Safety Code, §401.106(a), is exempted from the requirements of this chapter.(d) Any material exempted from licensing requirements for disposal by the Texas Department of State Health Services under 25 TAC §289.251 and §289.259 prior to June 18, 2007 is exempted from the requirements of this chapter.</content><note type="source"><p>Source Note: The provisions of this §336.5 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 14, 2000, 25 TexReg 8989; amended to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scA/s336.6"><num value="336.6">§336.6</num><heading>Additional Requirements</heading><content>The commission may, by rule, order, or condition of license, impose upon any licensee such requirements in addition to those established in the rules in this chapter as it deems appropriate or necessary under the Texas Radiation Control Act to minimize danger to public health and safety or property or the environment.</content><note type="source"><p>Source Note: The provisions of this §336.6 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scA/s336.9"><num value="336.9">§336.9</num><heading>Deliberate Misconduct</heading><content>(a) Any licensee, applicant for a license, employer of a licensee or applicant, or any contractor (including a supplier or consultant), subcontractor, employee of a contractor, or subcontractor of any licensee or applicant for a license, who knowingly provides to any licensee, applicant, contractor, or subcontractor, any components, equipment, materials, or other goods or services that relate to a licensee's or applicant's activities in this chapter, may not:(1) engage in deliberate misconduct that causes or would have caused if not detected, a licensee or applicant to be in violation of any rule, regulation, or order, or any term, condition, or limitation of any license issued by the commission; or(2) deliberately submit to the commission, a licensee, an applicant, or a licensee's or applicant's contractor or subcontractor, information that the person submitting the information knows to be incomplete or inaccurate in some respect material to the commission.(b) A person who violates subsection (a)(1) or (2) of this section may be subject to enforcement action under Texas Health and Safety Code, §401.393 and Texas Water Code, Chapter 7.(c) For the purposes of subsection (a)(1) of this section, deliberate misconduct by a person means an intentional act or omission that the person knows:(1) would cause a licensee or applicant to be in violation of any rule, regulation, or order; or any term, condition, or limitation of any license issued by the commission; or(2) constitutes a violation of a requirement, procedure, instruction, contract, purchase order, or policy of a licensee, applicant, contractor, or subcontractor.</content><note type="source"><p>Source Note: The provisions of this §336.9 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c336/scB"><num value="B">SUBCHAPTER B</num><heading>RADIOACTIVE SUBSTANCE FEES</heading><section identifier="/us/state/tx/tac/t30/p1/c336/scB/s336.101"><num value="336.101">§336.101</num><heading>Purpose and Scope</heading><content>(a) This subchapter establishes fees for licensing, commercial disposal, emergency response activities including training, and other regulatory services and provides for their payment.(b) Except as otherwise specifically provided, this subchapter applies to any person who is:(1) an applicant for or holder of a radioactive material license issued under this chapter; or(2) the holder of a fixed nuclear facility construction permit or operating license issued by the United States Nuclear Regulatory Commission under 10 Code of Federal Regulations Part 50 (Domestic Licensing of Production and Utilization Facilities); or(3) the operator of any other fixed nuclear facility.</content><note type="source"><p>Source Note: The provisions of this §336.101 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 3, 1998, 23 TexReg 8837; amended to be effective March 12, 2009, 34 TexReg 1688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scB/s336.102"><num value="336.102">§336.102</num><heading>Definitions</heading><content>Terms used in this subchapter are defined in §336.2 of this title (relating to Definitions). Additional terms used in this subchapter have the following definitions:(1) Closure--Any one or combination of the following: closure, dismantlement, decontamination, decommissioning, reclamation, disposal, aquifer restoration, stabilization, monitoring, or post closure observation and maintenance.(2) Emergency response--The application of those capabilities necessary for the protection of the public and the environment from the effects of an accidental or uncontrolled release of radioactive materials, including the equipping, training, and periodic retraining of response personnel.(3) Fixed nuclear facility--(A) Any nuclear reactor(s) at a single site;(B) Any facility designed or used for the assembly or disassembly of nuclear weapons; or(C) Any other facility using special nuclear material for which emergency response activities, including training, are conducted to protect the public health and safety or the environment.</content><note type="source"><p>Source Note: The provisions of this §336.102 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 3, 1998, 23 TexReg 8837; amended to be effective December 11, 2024, 49 TexReg 10003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scB/s336.103"><num value="336.103">§336.103</num><heading>Schedule of Fees for Subchapter H Licenses</heading><content>(a) An application for a low-level radioactive waste disposal site license under Subchapter H of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste) shall be accompanied by a nonrefundable application processing fee of $500,000. If the commission's costs in processing an application under Subchapter H of this chapter exceed the $500,000 application processing fee, the commission may assess and collect additional fees from the applicant to recover the costs. Recoverable costs include costs incurred by the commission for administrative review, technical review, and hearings associated with the application.(b) An applicant shall submit an annual fee for the actual costs incurred by the commission for hearings associated with an application for a low-level radioactive waste disposal site under Subchapter H of this chapter. The executive director shall send an invoice for the amount of the costs incurred during the period September 1 through August 31 of each year. Payment shall be made within 30 days following the date of the invoice.(c) A holder of a license for a low-level radioactive waste disposal site issued under Subchapter H of this chapter shall submit an annual license fee for the services received. This fee shall recover for the state the actual expenses arising from the regulatory activities associated with the license. This fee shall include reimbursement for the salary and other expenses of the resident inspectors as provided by §336.743 of this title (relating to Resident Inspector). The executive director shall invoice for the amount of the costs incurred. Payment shall be made within 30 days following the date of the invoice.(d) An application for a major amendment of a license issued under Subchapter H of this chapter must be accompanied by an application fee of $50,000.(e) An application for renewal of a license issued under Subchapter H of this chapter must be accompanied by an application fee of $300,000.(f) The compact waste disposal facility license holder shall remit directly to the host county 5% of the gross receipts from compact waste received at the compact waste disposal facility and any federal facility waste received at the federal facility waste disposal facility as required in Texas Health and Safety Code, §401.244. Payment shall be made within 30 days of the end of each quarter. The end of each quarter is the last day of the months of November, February, May, and August.</content><note type="source"><p>Source Note: The provisions of this §336.103 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 14, 2000, 25 TexReg 8989; amended to be effective January 8, 2004, 29 TexReg 150; amended to be effective March 12, 2009, 34 TexReg 1688; amended to be effective February 2, 2012, 37 TexReg 335; amended to be effective June 1, 2017, 42 TexReg 2829; amended to be effective April 26, 2018, 43 TexReg 2451.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scB/s336.105"><num value="336.105">§336.105</num><heading>Schedule of Fees for Other Licenses</heading><content>(a) Each application for a license under Subchapter F of this chapter (relating to Licensing of Alternative Methods of Disposal of Radioactive Material), Subchapter G of this chapter (relating to Decommissioning Standards), Subchapter K of this chapter (relating to Commercial Disposal of Naturally Occurring Radioactive Material Waste from Public Water Systems), Subchapter L of this chapter (relating to Licensing of Source Material Recovery and By-product Material Disposal Facilities), or Subchapter M of this chapter (relating to Licensing of Radioactive Substances Processing and Storage Facilities) must be accompanied by an application fee as follows:(1) facilities regulated under Subchapter F of this chapter: $50,000;(2) facilities regulated under Subchapter G of this chapter: $10,000;(3) facilities regulated under Subchapter K of this chapter: $50,000;(4) facilities regulated under Subchapter L of this chapter: $463,096 for conventional mining; $322,633 for in situ mining; $325,910 for heap leach; and $374,729 for disposal only; or(A) if the application fee is not sufficient to cover costs incurred by the commission, then the applicant shall submit a supplemental fee to recover the actual costs incurred by the commission for review of the application and any hearings associated with an application for commercial by-product material disposal under Subchapter L of this chapter in accordance with Texas Health and Safety Code, §401.301(g);(B) the executive director shall invoice for the amount of the costs incurred quarterly. Payment shall be made within 30 days following the date of the invoice;(5) facilities regulated under Subchapter M of this chapter: $3,830 for Waste Processing - Class I Exempt; $39,959 for Waste Processing - Class I; $94,661 for Waste Processing - Class II; and $273,800 for Waste Processing - Class III.(b) An annual license fee shall be paid for each license issued under Subchapters F, G, K, L, and M of this chapter. The amount of each annual fee is as follows:(1) facilities regulated under Subchapter F of this chapter: $25,000;(2) facilities regulated under Subchapter G of this chapter: $8,400;(3) facilities regulated under Subchapter K of this chapter: $25,000;(4) facilities regulated under Subchapter L of this chapter that are operational: $60,929.50; or(A) if the annual fee is not sufficient to cover costs incurred by the commission, a holder of a license for commercial by-product material disposal issued under Subchapter L of this chapter shall submit a supplemental license fee sufficient to recover the actual costs incurred by the commission. This fee shall recover for the state the actual expenses arising from the regulatory activities associated with the license in accordance with Texas Health and Safety Code, §401.412(d);(B) the executive director shall invoice for the amount of the costs incurred quarterly. Payment shall be made within 30 days following the date of the invoice;(5) facilities regulated under Subchapter L of this chapter that are in closure: $60,929.50;(6) facilities regulated under Subchapter L of this chapter that are in post-closure: $52,011.50 for conventional mining; $26,006 for in situ mining; and $52,011.50 for disposal only;(7) facilities regulated under Subchapter L of this chapter, if additional noncontiguous source material recovery facility sites are authorized under the same license, the annual fee shall be increased by 25% for each additional site and 50% for sites in closure;(8) facilities regulated under Subchapter L of this chapter, if an authorization for disposal of by-product material is added to a license, the annual fee shall be increased by 25%;(9) facilities regulated under Subchapter L of this chapter, the following one-time fees apply if added after an environmental assessment has been completed on a facility:(A) $28,658 for in situ wellfield on noncontiguous property;(B) $71,651 for in situ satellite;(C) $11,235 for wellfield on contiguous property;(D) $50,756 for non-vacuum dryer; or(E) $71, 651 for disposal (including processing, if applicable) of by-product material; or(10) facilities regulated under Subchapter M of this chapter: $3,830 for Waste Processing - Class I Exempt; $39,959 for Waste Processing - Class I; $94,661 for Waste Processing - Class II; and $273,800 for Waste Processing - Class III.(c) An application for a major amendment of a license issued under Subchapter F, G, K, L, or M of this chapter must be accompanied by an application fee of $10,000.(d) An application for renewal of a license issued under Subchapter F, G, K, L, or M of this chapter must be accompanied by an application fee of $35,000.(e) Upon permanent cessation of all disposal activities and approval of the final decommissioning plan, holders of licenses issued under Subchapter F, K, L, or M of this chapter shall use the applicable fee schedule for subsections (b) and (c) of this section.(f) For any application for a license issued under this chapter, the commission may assess and collect additional fees from the applicant to recover costs. Recoverable costs include costs incurred by the commission for administrative review, technical review, and hearings associated with the application. The executive director shall send an invoice for the amount of the costs incurred during the period September 1 through August 31 of each year. Payment shall be made within 30 days following the date of the invoice.(g) The commission may charge an additional 5% of annual fee assessed under subsection (b) of this section and §336.103 of this title (relating to Schedule of Fees for Subchapter H Licenses). The fee is non-refundable and will be deposited to the perpetual care account.(1) The fees collected by the agency in accordance with this subsection shall be deposited to the credit of the Environmental Radiation and Perpetual Care Account, until the fees collectively total $500,000.(2) If the balance of fees collected in accordance with this subsection is subsequently reduced to $350,000 or less, the agency shall reinstitute assessment of the fee until the balance reaches $500,000.(h) The holder of a license authorizing disposal of a radioactive substance from other persons shall remit to the commission 5% of the holder's gross receipts received from disposal operations under a license as required in Texas Health and Safety Code, §401.271(a)(1). Payment shall be made within 30 days of the end of each quarter. The end of each quarter is the last day of the months of November, February, May, and August. This subsection does not apply to the disposal of compact waste or federal facility waste.(i) The holder of a license authorizing disposal of a radioactive substance from other persons shall remit directly to the host county 5% of the gross receipts disposal operations under a license as required in Texas Health and Safety Code, §401.271(a)(2). Payment shall be made within 30 days of the end of each quarter. The end of each quarter is the last day of the months of November, February, May, and August. This subsection does not apply to the disposal of compact waste or federal facility waste.</content><note type="source"><p>Source Note: The provisions of this §336.105 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 14, 2000, 25 TexReg 8989; amended to be effective July 21, 2005, 30 TexReg 4127; amended to be effective February 28, 2008, 33 TexReg 1570; amended to be effective March 12, 2009, 34 TexReg 1688; amended to be effective February 2, 2012, 37 TexReg 335; amended to be effective June 25, 2015, 40 TexReg 3996; amended to be effective December 11, 2024, 49 TexReg 10003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scB/s336.106"><num value="336.106">§336.106</num><heading>Annual Fees for Emergency Response Activities, Including Training</heading><content>Each holder of a fixed nuclear facility construction permit or operating license issued by the United States Nuclear Regulatory Commission or an operator of any other fixed nuclear facility shall submit an annual fee for the services received. This fee shall recover for the State the actual expenses arising from emergency response activities, including training. Costs of activities benefiting more than one facility shall be prorated. The executive director shall send an invoice after completion of emergency response activities held before August 31 of each year. Payment shall be made within 30 days following the date of the invoice.</content><note type="source"><p>Source Note: The provisions of this §336.106 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scB/s336.107"><num value="336.107">§336.107</num><heading>Annual License Fee Due Date and Period Covered</heading><content>(a) Payment for annual fees set forth in §336.105(b) of this title (relating to Schedule of Fees for Other Licenses) shall be due on or before October 31st of each year.(b) The period covered by each annual fee set forth in §336.105(b) of this title shall be the 12 months preceding the fee payment due date, except fees may be prorated for a period less than 12 months to accommodate the due date established in subsection (a) of this section.</content><note type="source"><p>Source Note: The provisions of this §336.107 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 3, 1998, 23 TexReg 8837; amended to be effective September 14, 2000, 25 TexReg 8989; amended to be effective March 12, 2009, 34 TexReg 1688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scB/s336.109"><num value="336.109">§336.109</num><heading>Fees after Request for Termination of License</heading><content>(a) If a licensee requests termination of a license, the amount of the annual fee due on the next fee payment due date may be prorated based on the number of months completed through the month of the termination request out of the 12-month period covered by the annual fee. As an example, if a licensee requests termination of a license on August 20 and the next annual fee is due on or before November 30, the annual fee for that year may be prorated as 9/12 of the applicable fee amount. After the next annual fee due date, the annual fee may be waived pending the final determination on the termination request. The annual fee may be prorated or waived as provided in this subsection if the executive director has reasonable basis to find, from information provided by the licensee, that the licensee has satisfied the applicable requirements for decommissioning and closure. If the executive director has insufficient information or finds that the licensee has not satisfied the requirements for decommissioning and closure, the annual fee shall not be prorated or waived and shall be the full amount.(b) If an annual fee has been prorated or waived under subsection (a) of this section and the executive director later determines, before making the final determination on the request for termination, that the licensee has not met the decommissioning and closure requirements, then any amount of annual fees not paid due to proration or waiving shall be payable immediately upon notice to the licensee.(c) The commission may not terminate a license for which the licensee has not paid any outstanding fees prescribed by this subchapter until the fees are paid.</content><note type="source"><p>Source Note: The provisions of this §336.109 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scB/s336.110"><num value="336.110">§336.110</num><heading>Nonrefundable Fees</heading><content>(a) Fee payments set forth in this subchapter are not refundable, except as provided in subsection (b) of this section. Fee payments for applications or amendment applications as set forth in this subchapter shall be charged irrespective of the commission's disposition of the application or a withdrawal of the application by the applicant.(b) If the executive director determines that a license application or an amendment application is not administratively complete, the application and any accompanying application fee may be returned to the applicant.</content><note type="source"><p>Source Note: The provisions of this §336.110 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scB/s336.111"><num value="336.111">§336.111</num><heading>Method of Payment of Fees</heading><content>Fee payments prescribed by this subchapter shall be made in cash or by check or money order made payable to the Texas Commission on Environmental Quality. The payments may be made by personal delivery to the Financial Administration Cashier Office, Texas Commission on Environmental Quality, in Austin, Texas, or mailed to the Texas Commission on Environmental Quality, Cashier's Office, MC 214, P.O. Box 13088, Austin, Texas 78711-3088.</content><note type="source"><p>Source Note: The provisions of this §336.111 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scB/s336.112"><num value="336.112">§336.112</num><heading>Failure To Pay Prescribed Application Fees</heading><content>In any case where an applicant for a license or a license amendment has failed to pay the application fee or amendment application fee prescribed in this subchapter, the executive director shall not process that application until this fee is paid in full. If the applicable fee is not paid in full, the executive director may find that the application or amendment application is not administratively complete and may return the application to the applicant.</content><note type="source"><p>Source Note: The provisions of this §336.112 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scB/s336.113"><num value="336.113">§336.113</num><heading>Failure to Pay Prescribed Annual Fees</heading><content>(a) A licensee failing to make payment of the fees when due under this chapter shall be assessed penalties and interest in accordance with Chapter 12 of this title (relating to Payment of Fees).(b) In any case where the executive director finds that a licensee has failed to pay a fee prescribed by this subchapter by the due date, the executive director may implement compliance procedures.(c) In any case where the executive director finds that a fixed nuclear facility has failed to pay fees for emergency response activities, including training, within 90 days following the date of the invoice, the executive director may recommend and the commission may issue an order to show cause why those services should not be terminated.</content><note type="source"><p>Source Note: The provisions of this §336.113 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scB/s336.114"><num value="336.114">§336.114</num><heading>Fee for Fixed Nuclear Facilities</heading><content>The commission may set and collect an annual fee from the operator of each nuclear reactor or other fixed nuclear facility in the state that uses special nuclear material. The amount of fees collected may not exceed the actual expenses that arise from emergency planning and implementation and environmental surveillance activities.</content><note type="source"><p>Source Note: The provisions of this §336.114 adopted to be effective effective March 12, 2009, 34 TexReg 1688.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c336/scC"><num value="C">SUBCHAPTER C</num><heading>GENERAL LICENSING REQUIREMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.201"><num value="336.201">§336.201</num><heading>Purpose and Scope</heading><content>This subchapter establishes general licensing requirements for all radioactive materials, except oil and gas naturally occurring radioactive material waste.</content><note type="source"><p>Source Note: The provisions of this §336.201 adopted to be effective September 14, 2000, 25 TexReg 8989; amended to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.203"><num value="336.203">§336.203</num><heading>License Required</heading><content>No person shall dispose of radioactive material unless that person has a license from the Texas Commission on Environmental Quality, or an exemption under Texas Health and Safety Code, §401.106(a).</content><note type="source"><p>Source Note: The provisions of this §336.203 adopted to be effective September 14, 2000, 25 TexReg 8989; amended to be effective January 8, 2004, 29 TexReg 150; amended to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.205"><num value="336.205">§336.205</num><heading>Application Requirements</heading><content>(a) Applications shall be submitted according to the requirements of Chapter 305 of this title (relating to Consolidated Permits), unless otherwise indicated.(b) An application for a license, or amendment of a license shall be accompanied by the appropriate fee, specified in Subchapter B of this chapter (relating to Radioactive Substance Fees).</content><note type="source"><p>Source Note: The provisions of this §336.205 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.207"><num value="336.207">§336.207</num><heading>General Requirements for Issuance of a License</heading><content>An application may be approved if the commission determines that the requirements set forth in the applicable subchapter of this chapter and Chapter 305, Subchapter C of this title (relating to Application for Permit) have been met and that:(1) the applicant is qualified by training and experience to conduct the proposed radioactive material activities in accordance with the rules in this chapter in such a manner as to protect and minimize danger to the public health and safety and the environment;(2) the applicant's proposed equipment, facilities, and procedures are adequate to protect and minimize danger to the public health and safety and the environment;(3) the issuance of the license will not be inimical to public health and safety nor have a long-term detrimental impact on the environment.(4) the applicant for a license issued under Subchapter H of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste) has acquired the title to and any interest in land and buildings, including the surface and mineral estates, on which the facility or facilities are to be located by either having acquired:(A) an undivided ownership of the buildings, surface estate, and mineral estate in fee simple through purchase or completed condemnation; or(B) an undivided ownership of the buildings and surface estate, along with an exemption, granted by the commission in accordance with federal law for use of a surface use agreement, in lieu of acquiring fee simple title to the mineral estate; and(5) if applicable, the applicant has demonstrated financial capability to conduct the proposed activity, including all costs associated with decommissioning, decontamination, disposal, reclamation, and any long-term care and surveillance.</content><note type="source"><p>Source Note: The provisions of this §336.207 adopted to be effective September 14, 2000, 25 TexReg 8989; amended to be effective January 8, 2004, 29 TexReg 150; amended to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.208"><num value="336.208">§336.208</num><heading>Radiation Safety Officer</heading><content>(a) Qualifications of the designated radiation safety officer (RSO) are adequate for the purpose requested and include as a minimum:(1) have earned at least a bachelor's degree in a physical or biological science, industrial hygiene, health physics, radiation protection, or engineering from an accredited college or university, or an equivalent combination of training and relevant experience, with two years of relevant experience equivalent to a year of academic study, from a uranium or mineral extraction/recovery, radioactive waste processing, or a radioactive waste or by-product material disposal facility;(2) have at least one year of relevant experience, in addition to that used to meet the educational requirement, working under the direct supervision of the RSO at a uranium or mineral extraction/recovery, radioactive waste processing, or radioactive waste or by-product material disposal facility; and(3) have additional training in health physics or radiation safety as determined by the Executive Director.(b) The specific duties of the RSO include, but are not limited to, the following:(1) to establish and oversee operating, safety, emergency, and as low as reasonably achievable procedures, and to review them at least annually to ensure that the procedures are current and conform with this chapter;(2) to oversee and approve all phases of the training program for operations and/or personnel so that appropriate and effective radiation protection practices are taught;(3) to ensure that required radiation surveys and leak tests are performed and documented in accordance with this chapter, including any corrective measures when levels of radiation exceed established limits;(4) to ensure that individual monitoring devices are used properly by occupationally-exposed personnel, that records are kept of the monitoring results, and that timely notifications are made in accordance with §336.405 of this title (relating to Notifications and Reports to Individuals);(5) to investigate and cause a report to be submitted to the agency for each known or suspected case of radiation exposure to an individual or radiation level detected in excess of limits established by this chapter and each theft or loss of source(s) of radiation, to determine the cause(s), and to take steps to prevent a recurrence;(6) to investigate and cause a report to be submitted to the executive director for each known or suspected case of release of radioactive material to the environment in excess of limits established by this chapter;(7) to have a thorough knowledge of management policies and administrative procedures of the licensee;(8) to assume control and have the authority to institute corrective actions, including shutdown of operations when necessary in emergency situations or unsafe conditions;(9) to ensure that records are maintained as required by this chapter;(10) to ensure the proper storing, labeling, transport, use and disposal of sources of radiation, storage, and/or transport containers;(11) to ensure that inventories are performed in accordance with the activities for which the license application is submitted;(12) to perform an inventory of the radioactive sealed sources authorized for use on the license every six months and make and maintain records of the inventory of the radioactive sealed sources authorized for use on the license every six months, to include, but not be limited to, the following:(A) isotope(s);(B) quantity(ies);(C) radioactivity(ies); and(D) date inventory is performed.(13) to ensure that personnel are complying with this chapter, the conditions of the license, and the operating, safety, and emergency procedures of the licensee; and(14) to serve as the primary contact with the agency.</content><note type="source"><p>Source Note: The provisions of this §336.208 adopted to be effective effective March 12, 2009, 34 TexReg 1688; amended to be effective December 11, 2024, 49 TexReg 10003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.209"><num value="336.209">§336.209</num><heading>Issuance of License</heading><content>Upon a determination that an application meets the requirements of the Texas Health and Safety Code, Chapter 401 and the commission rules relating to radioactive material licensing, the commission may issue a license authorizing the proposed activity.</content><note type="source"><p>Source Note: The provisions of this §336.209 adopted to be effective September 14, 2000, 25 TexReg 8989; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.210"><num value="336.210">§336.210</num><heading>Emergency Plan for Responding to a Release</heading><content>(a) A new or renewal application for each specific license to possess radioactive materials in unsealed form, on foils or plated sources, or sealed in glass in excess of the quantities in subsection (e) of this section shall contain either: (1) an evaluation showing that the maximum dose to a person off-site due to a release of radioactive material would not exceed 1 rem effective dose equivalent or 5 rems to the thyroid; or (2) an emergency plan for responding to a release of radioactive material. (b) One or more of the following factors may be used to support an evaluation submitted in accordance with subsection (a)(1) of this section: (1) the radioactive material is physically separated so that only a portion could be involved in an accident; (2) all or part of the radioactive material is not subject to release during an accident because of the way it is stored or packaged; (3) the release fraction in the respirable size range would be lower than the release fraction in subsection (e) of this section due to the chemical or physical form of the material; (4) the solubility of the radioactive material would reduce the dose received; (5) facility design or engineered safety features in the facility would cause the release fraction to be lower than that in subsection (e) of this section; (6) operating restrictions or procedures would prevent a release fraction as large as that in subsection (e) of this section; or (7) other factors appropriate for the specific facility. (c) An emergency plan for responding to a release of radioactive material submitted in accordance with subsection (a)(1) of this section shall include the following information. (1) Facility description. A brief description of the licensee's facility and area near the site. (2) Types of accidents. An identification of each type of radioactive materials accident for which protective actions may be needed. (3) Classification of accidents. A classification system for classifying accidents as alerts or site area emergencies. (4) Detection of accidents. Identification of the means of detecting each type of accident in a timely manner. (5) Mitigation of consequences. A brief description of the means and equipment for mitigating the consequences of each type of accident, including those provided to protect workers onsite, and a description of the program for maintaining the equipment. (6) Assessment of releases. A brief description of the methods and equipment to assess releases of radioactive materials. (7) Responsibilities. A brief description of the responsibilities of licensee personnel should an accident occur, including identification of personnel responsible for promptly notifying off-site response organizations and the agency; also, responsibilities for developing, maintaining, and updating the plan. (8) Notification and coordination. A commitment to and a brief description of the means to promptly notify off-site response organizations and request off-site assistance, including medical assistance for the treatment of contaminated injured onsite workers when appropriate. A control point shall be established. The notification and coordination shall be planned so that unavailability of some personnel, parts of the facility, and some equipment will not prevent the notification and coordination. The licensee shall also commit to notify the agency immediately after notification of the appropriate off-site response organizations and not later than one hour after the licensee declares an emergency. These reporting requirements do not supersede or release licensees from complying with the requirements in accordance with the Emergency Planning and Community Right-to-Know-Act of 1986, Title III, Publication L. 99-499 or other state or federal reporting requirements. (9) Information to be communicated. A brief description of the types of information on facility status, radioactive releases, and recommended protective actions, if necessary, to be given to off-site response organizations and to the agency. (10) Training. A brief description of the frequency, performance objectives, and plans for the training that the licensee will provide workers on how to respond to an emergency, including any special instructions and orientation tours the licensee would offer to fire, police, medical, and other emergency personnel. The training shall familiarize personnel with site-specific emergency procedures. Also, the training shall thoroughly prepare site personnel for their responsibilities in the event of accident scenarios postulated as most probable for the specific site, including the use of team training for such scenarios. (11) Safe shutdown. A brief description of the means of restoring the facility to a safe condition after an accident. (12) Exercises. Provisions for conducting quarterly communications checks with off-site response organizations at intervals not to exceed three months and biennial onsite exercises to test response to simulated emergencies. Communications checks with off-site response organizations shall include the check and update of all necessary telephone numbers. The licensee shall invite off-site response organizations to participate in the biennial exercises. Participation of off-site response organizations in biennial exercises, although recommended, is not required. Exercises shall use accident scenarios postulated as most probable for the specific site and the scenarios shall not be known to most exercise participants. The licensee shall critique each exercise using individuals not having direct implementation responsibility for the plan. Critiques of exercises shall evaluate the appropriateness of the plan, emergency procedures, facilities, equipment, training of personnel, and overall effectiveness of the response. Deficiencies found by the critiques shall be corrected. (13) Hazardous chemicals. A certification that the applicant has met its responsibilities in accordance with the Emergency Planning and Community Right-to-Know Act of 1986, Title III, Publication L. 99-499, if applicable to the applicant's activities at the proposed place of use of the radioactive material. (d) The licensee shall allow the off-site response organizations expected to respond in case of an accident 60 days to comment on the licensee's emergency plan before submitting it to the agency. The licensee shall provide any comments received within the 60 days to the agency with the emergency plan. (e) The following indicates release fractions for radioactive material. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.210 adopted to be effective March 12, 2009, 34 TexReg 1688; amended to be effective February 2, 2012, 37 TexReg 335.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.211"><num value="336.211">§336.211</num><heading>General Requirements for Radioactive Material Disposal</heading><content>(a) Unless otherwise exempted, a licensee may dispose of licensed material, as appropriate to the type of licensed material, only:(1) by transfer to an authorized recipient as provided in §336.331(g) and (h) of this title (relating to Transfer of Radioactive Material), Subchapter H of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste), or in Subchapter L of this chapter (relating to Licensing of Source Material Recovery and By-product Material Disposal Facilities);(2) by transfer to a recipient authorized in another state by license issued by the United States Nuclear Regulatory Commission or an Agreement State or to the United States Department of Energy;(3) by decay in storage as authorized by law;(4) by release in effluents within the limits specified in §336.313 of this title (relating to Dose Limits for Individual Members of the Public);(5) as authorized under §336.213 of this title (relating to Method of Obtaining Approval of Proposed Disposal Procedures);(6) as authorized under §336.215 of this title (relating to Disposal by Release into Sanitary Sewerage);(7) as authorized under §336.223 of this title (relating to Disposal in Underground Injection Control Class I Injection Wells);(8) as authorized under §336.225 of this title (relating to Disposal of Specific Wastes); or(9) as specifically authorized by commission license issued under this chapter.(b) A person must be specifically licensed to receive waste containing licensed material from other persons for:(1) treatment prior to disposal;(2) treatment by incineration;(3) decay in storage;(4) disposal at a land disposal facility; or(5) disposal by injection in an underground injection control Class I injection well.(c) Except as provided in subsection (d) of this section, the processing and storage of radioactive material received from other persons is subject to Subchapter M of this chapter (relating to Licensing of Radioactive Substances Processing and Storage Facilities).(d) The receipt, storage, and/or processing of radioactive materials received at a licensed commercial radioactive material disposal facility for the explicit purpose of disposal at that facility shall be regulated in accordance with the license authorizing disposal under this chapter.(e) The on-site disposal of low-level radioactive waste is prohibited, except as provided by this section. The commission may, on request or its own initiative, authorize on-site disposal of low-level radioactive waste on a specific basis at any facility at which licensed low-level radioactive waste disposal operations began before September 1, 1989, if, after evaluation of the specific characteristics of the waste, the disposal site, and the method of disposal, the commission finds that the continuation of the disposal activity will not constitute a significant risk to public health and safety and to the environment. Persons subject to this subsection shall be licensed under Subchapter F of this chapter (relating to Licensing of Alternative Methods of Disposal of Radioactive Material).(f) The disposal of low-level radioactive waste received from other persons is prohibited, except by a person who is specifically licensed under Subchapter H of this chapter.</content><note type="source"><p>Source Note: The provisions of this §336.211 adopted to be effective September 14, 2000, 25 TexReg 8989; amended to be effective January 8, 2004, 29 TexReg 150; amended to be effective July 21, 2005, 30 TexReg 4127; amended to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.213"><num value="336.213">§336.213</num><heading>Method of Obtaining Approval of Proposed Activities</heading><content>(a) A person who plans to dispose of radioactive material; store or process radioactive substances from other persons; or recover or process source material shall submit an application for a license according to Chapter 305 of this title (relating to Consolidated Permits) and the applicable subchapter in this chapter.(b) A person holding a license issued under this chapter shall request changes to the license by requesting a license amendment, according to Chapter 305, Subchapter D of this title (relating to Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits).(c) If this chapter does not specifically authorize a proposed disposal procedure, a person shall file an application for a license or license amendment under Subchapter F of this chapter (relating to Licensing of Alternative Methods of Disposal of Radioactive Material) for approval of on-site disposal of radioactive material generated in the person's activities.</content><note type="source"><p>Source Note: The provisions of this §336.213 adopted to be effective September 14, 2000, 25 TexReg 8989; amended to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.215"><num value="336.215">§336.215</num><heading>Disposal by Release into Sanitary Sewerage</heading><content>A licensee may discharge licensed material into sanitary sewerage if each of the following conditions is satisfied:(1) the material is readily soluble in water, or is readily dispersible biological material;(2) the quantity of licensed or other radioactive material that the licensee releases into the sewer in one month divided by the average monthly volume of water released into the sewer by the licensee does not exceed the concentration listed in Table III of §336.359 of this title (relating to Appendix B, Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage);(3) if more than one radionuclide is released, the licensee shall determine the fraction of the limit in Table III of §336.359 of this title represented by discharges into sanitary sewerage by dividing the actual monthly average concentration of each radionuclide released by the licensee into the sewer by the concentration of that radionuclide listed in Table III of §336.359 of this title; the sum of the fractions for all of the radionuclides released shall not exceed one; and(4) the total quantity of licensed and other radioactive material that the licensee releases into the sanitary sewerage in a year does not exceed five curies (185 gigabecquerels) of hydrogen-3, one curie (37 gigabecquerels) of carbon-14, and one curie (37 gigabecquerels) of all other radioactive materials combined.</content><note type="source"><p>Source Note: The provisions of this §336.215 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.217"><num value="336.217">§336.217</num><heading>Disposal by Burial in Soil</heading><content>No licensee shall dispose of radioactive material by burial in soil except as provided by:(1) §336.225 of this title (relating to Disposal of Specific Wastes);(2) specific license issued under the applicable subchapter of this chapter; or(3) an exemption issued under §336.5(a) of this title (relating to Exemptions).</content><note type="source"><p>Source Note: The provisions of this §336.217 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.219"><num value="336.219">§336.219</num><heading>Disposal by Release into Septic Tanks</heading><content>No licensee shall discharge radioactive material into a septic tank system except by specific license issued by the commission under Subchapter F of this chapter (relating to Alternative Methods of Disposal of Radioactive Material).</content><note type="source"><p>Source Note: The provisions of this §336.219 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.221"><num value="336.221">§336.221</num><heading>Treatment or Disposal by Incineration</heading><content>(a) Treatment of radioactive material by incineration, except in a form and concentration specified by §336.225 of this title (relating to Disposal of Specific Wastes), shall be subject to applicable rules of the Texas Department of Health.(b) Ash residue waste containing radioactive material shall be disposed of in accordance with §336.211 of this title (relating to General Requirements for Radioactive Material Waste Disposal).</content><note type="source"><p>Source Note: The provisions of this §336.221 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.223"><num value="336.223">§336.223</num><heading>Disposal in Underground Injection Control Class I Injection Wells</heading><content>A person shall dispose of radioactive material by injection, only into an underground injection control Class I injection well that is:(1) permitted under Chapter 331 of this title (relating to Underground Injection Control); and(2) specifically licensed under this chapter for radioactive material waste disposal.</content><note type="source"><p>Source Note: The provisions of this §336.223 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.225"><num value="336.225">§336.225</num><heading>Disposal of Specific Wastes</heading><content>(a) A licensee may dispose of the following licensed material as if it were not radioactive:(1) 0.05 microcurie (1.85 kilobecquerels), or less, of hydrogen-3, carbon-14, or iodine-125 per gram of medium used for liquid scintillation counting or in vitro clinical or in vitro laboratory testing; and(2) 0.05 microcurie (1.85 kilobecquerels), or less, of hydrogen-3, carbon-14, or iodine-125 per gram of animal tissue, averaged over the weight of the entire animal.(b) A licensee shall not dispose of tissue under subsection (a)(2) of this section in a manner that would permit its use either as food for humans or as animal feed.(c) A licensee may, upon commission approval under subsection (d) of this section, dispose of licensed material listed in §336.365 of this title (relating to Appendix H. Radionuclide Concentration and Annual Activity Limits for Disposal in a Type I Municipal Solid Waste Facility or a Hazardous Waste Facility), provided that the licensed material does not exceed the specified concentration and annual activity limits, in a Type I municipal solid waste facility as defined in the commission's rules in Chapter 330 of this title (relating to Municipal Solid Waste), unless the licensed material is hazardous waste, or is combined with hazardous waste, as defined in Chapter 330 of this title. Licensed material listed in §336.365 of this title which does not exceed the specified concentration and annual activity limits and which is hazardous waste, or is combined with hazardous waste, shall be disposed of at a hazardous waste disposal facility in accordance with the commission's rules in Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste). Disposals at a Type I municipal solid waste facility or a hazardous waste disposal facility must comply with other requirements for those facilities as set forth in Chapters 330 or 335 of this title, respectively.(d) A licensee shall apply for commission authorization, by license amendment, for the disposal of licensed material under subsection (c) of this section by submitting procedures for the following to the agency:(1) physical delivery of the material to the disposal facility;(2) surveys to be performed for compliance with subsection (e)(1) of this section;(3) maintaining secure packaging during transportation to the site; and(4) maintaining records of any disposals made under this subsection.(e) Each licensee who disposes of licensed material under subsections (a) - (d) of this section shall:(1) make surveys adequate to assure that the limits specified in subsection (a) or (c) of this section are not exceeded; and(2) remove or otherwise obliterate or obscure all labels, tags, or other markings which would indicate that the material or contents is radioactive.(f) Each licensee who disposes of licensed material under subsections (a) - (d) of this section shall maintain records in accordance with §336.338 of this title (relating to General Recordkeeping Requirements for Disposal).(g) Material disposed of under this section is exempt from the requirements of §336.332 of this title (relating to Preparation of Radioactive Material for Transport).</content><note type="source"><p>Source Note: The provisions of this §336.225 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.227"><num value="336.227">§336.227</num><heading>Radioactive Tracers Used in the Exploration, Development or Production of Oil or Gas or Geothermal Resources</heading><content>(a) Disposal of radioactive tracer materials used in the exploration, development or production of oil or gas or geothermal resources is exempt from licensing requirements for the disposal of radioactive substances under this chapter if the radioactive tracer materials are disposed of in accordance with this section.(b) Radioactive tracers are eligible for exemption under this section if:(1) the possession, transportation, and use of the radioactive tracers are licensed or otherwise authorized by the Texas Department of State Health Services;(2) the non-water soluble radioactive tracers are in fluids that have been retrieved from a well used in the exploration, development or production of oil or gas or geothermal resources and such well is permitted or otherwise authorized by the Railroad Commission of Texas;(3) the total concentration of radioactivity for all isotopes disposed does not exceed 1,000 picocuries per gram (pCi/g), and the half-life of each isotope is 120 days or less; and(4) the radioactive tracers are non-water soluble.(c) A person may dispose of radioactive tracers that are eligible for exemption under subsection (b) of this section in an on-site disposal pit that is permitted by the Railroad Commission of Texas for the disposal of oil and gas waste and is covered by at least two feet of clean soil.(d) A person may dispose of radioactive tracers that are eligible for exemption under subsection (b) of this section in a Class II injection well permitted by the Railroad Commission of Texas for the disposal of oil and gas waste if the permit specifically authorizes the disposal of radioactive tracers.(e) Any person who disposes of radioactive tracers exempted from licensing requirements under this section must maintain records related to the disposal, including method and location of disposal, identity of specific isotopes, estimated volume of the radioactive tracers, and total concentration of radioactivity for the isotopes disposed, and dates of disposal. The executive director may request records related to disposal of tracer materials under this section at any time.</content><note type="source"><p>Source Note: The provisions of this §336.227 adopted to be effective July 11, 2013, 38 TexReg 4379.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scC/s336.229"><num value="336.229">§336.229</num><heading>Prohibition of Dilution</heading><content>No person shall reduce the concentration of radioactive constituents by dilution to meet exemption levels established under the Texas Health and Safety Code, Chapter 401, §401.106, or change the waste's classification or disposal requirements. Radioactive material that has been diluted as a result of stabilization, mixing, or treatment, including, but not limited to, Resource Conservation and Recovery Act (RCRA) Land Disposal Restrictions (LDR) treatment, or for any other reason, shall be subject to the disposal regulations it would have been subject to prior to dilution.</content><note type="source"><p>Source Note: The provisions of this §336.229 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c336/scD"><num value="D">SUBCHAPTER D</num><heading>STANDARDS FOR PROTECTION AGAINST RADIATION</heading><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.301"><num value="336.301">§336.301</num><heading>Purpose and Scope</heading><content>(a) This subchapter establishes standards for protection against ionizing radiation resulting from activities conducted under licenses issued by the commission and establishes minimum standards for all persons who dispose of radioactive materials.(b) The rules in this subchapter are designed to control the receipt, possession, use, transfer, and disposal of licensed radioactive material by any commission licensee so that the total dose to an individual, including doses resulting from licensed and unlicensed radioactive material and from radiation sources other than background radiation, does not exceed the standards for protection against radiation prescribed in this subchapter. However, nothing in this subchapter shall be construed as limiting actions that may be necessary to protect health and safety.(c) Except as specifically provided in other parts of this chapter, this subchapter applies to persons licensed by the commission to receive, possess, use, transfer, or dispose of radioactive material. The limits in this subchapter do not apply to doses due to background radiation, to exposure of patients to radiation for the purpose of medical diagnosis or therapy, or to voluntary participation in medical research programs.(d) Nothing in this subchapter relieves the licensee from complying with other applicable federal, state, and local regulations governing any other toxic or hazardous properties of materials that shall be disposed of under the rules in this chapter.</content><note type="source"><p>Source Note: The provisions of this §336.301 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.302"><num value="336.302">§336.302</num><heading>Definitions</heading><content>Terms used in this subchapter are defined in §336.2 of this title (relating to Definitions). Additional terms used in this subchapter and in §336.363, Appendix F, of this title (relating to Requirements for Receipt of Low-Level Radioactive Waste for Disposal at Licensed Land Disposal Facilities and Manifests) are given in that section.</content><note type="source"><p>Source Note: The provisions of this §336.302 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.303"><num value="336.303">§336.303</num><heading>Implementation</heading><content>(a) The applicable section of this subchapter must be used in lieu of requirements in the standards for protection against radiation in effect before January 1, 1994, that are cited in license conditions, except as specified in subsections (b), (c), and (d) of this section. If the requirements of this subchapter are more restrictive than the existing license condition, then the licensee shall comply with this subchapter unless exempted by subsection (c) of this section.(b) Any existing license condition that is more restrictive than a requirement in this subchapter remains in force until there is an amendment or renewal of the license.(c) If a license condition exempted a licensee from a requirement in the standards for protection against radiation in effect before January 1, 1994, it also exempts the licensee from the corresponding provision of this subchapter.(d) If a license condition cites provisions in requirements in the standards for protection against radiation in effect before January 1, 1994, and there are no corresponding provisions in this subchapter, the license condition remains in force until there is an amendment or renewal of the license that modifies or removes this condition.</content><note type="source"><p>Source Note: The provisions of this §336.303 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.304"><num value="336.304">§336.304</num><heading>Radiation Protection Programs</heading><content>(a) Each licensee shall develop, document, and implement a radiation protection program commensurate with the scope and extent of licensed activities and sufficient to ensure compliance with the provisions of this subchapter. See §336.342 of this title (relating to Records of Radiation Protection Programs) for requirements for maintaining records relating to these programs.(b) The licensee shall use, to the extent practicable, procedures and engineering controls based upon sound radiation protection principles to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA).(c) The licensee shall, at intervals not to exceed 12 months, review the radiation protection program content and implementation.(d) To implement the ALARA requirement of subsection (b) of this section, and notwithstanding the requirements in §336.313 of this title (relating to Dose Limits for Individual Members of the Public), a constraint on air emissions of radioactive material to the environment, excluding Radon-222 and its daughters, shall be established by licensees other than nuclear power reactors, such that the individual member of the public likely to receive the highest dose will not be expected to receive a total effective dose equivalent in excess of 10 mrem (0.1 mSv) per year from these emissions. If a licensee subject to this requirement exceeds this dose constraint, the licensee shall report the exceedence as provided in §336.352 of this title (relating to Reports of Exposures, Radiation Levels, and Concentrations of Radioactive Material Exceeding the Limits) and promptly take appropriate corrective action to ensure against recurrence.</content><note type="source"><p>Source Note: The provisions of this §336.304 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 3, 1998, 23 TexReg 8837.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.305"><num value="336.305">§336.305</num><heading>Occupational Dose Limits for Adults</heading><content>(a) The licensee shall control the occupational dose to individual adults, except for planned special exposures under §336.310 of this title (relating to Planned Special Exposures), to the following dose limits:(1) an annual limit, which is the more limiting of:(A) the total effective dose equivalent being equal to 5 rems (0.05 sievert); or(B) the sum of the deep-dose equivalent and the committed dose equivalent to any individual organ or tissue other than the lens of the eye being equal to 50 rems (0.5 sievert).(2) the annual limits to the lens of the eye, to the skin of the whole body, and to the skin of the extremities, which are:(A) a lens dose equivalent of 15 rems (0.15 sievert), and(B) a shallow-dose equivalent of 50 rems (0.5 sievert) to the skin of the whole body or to the skin of any extremity.(b) Doses received in excess of the annual limits, including doses received during accidents, emergencies, and planned special exposures, shall be subtracted from the limits for planned special exposures that the individual may receive during the current year and during the individual's lifetime. See §336.310(5)(A) and (B) of this title.(c) When the external exposure is determined by measurement with an external personal monitoring device, the deep-dose equivalent must be used in place of the effective dose equivalent, unless the effective dose equivalent is determined by a dosimetry method approved by the executive director. The assigned deep-dose equivalent must be for the part of the body receiving the highest exposure. The assigned shallow-dose equivalent must be the dose averaged over the contiguous ten square centimeters of skin receiving the highest exposure. The deep-dose equivalent, lens dose equivalent, and shallow-dose equivalent may be assessed from surveys or other radiation measurements for the purpose of demonstrating compliance with the occupational dose limits, if the individual monitoring device was not in the region of highest potential exposure or the results of individual monitoring are unavailable.(d) Derived air concentration (DAC) and annual limit on intake (ALI) values are specified in Table I of §336.359, Appendix B, of this title (relating to Appendix B. Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage) and may be used to determine the individual's dose and to demonstrate compliance with the occupational dose limits. See §336.346 of this title (relating to Records of Individual Monitoring Results).(e) In addition to the annual dose limits, the licensee shall limit the soluble uranium intake by an individual to 10 milligrams in a week in consideration of chemical toxicity. See note 3 of §336.359, Appendix B, of this title.(f) The licensee shall reduce the dose that an individual may be allowed to receive in the current year by the amount of occupational dose received while employed by any other person. See §336.309(e) of this title (relating to Determination of Prior Occupational Dose).</content><note type="source"><p>Source Note: The provisions of this §336.305 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective August 30, 2001, 26 TexReg 6309; amended to be effective January 8, 2004, 29 TexReg 150; amended to be effective February 2, 2012, 37 TexReg 335.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.306"><num value="336.306">§336.306</num><heading>Compliance with Requirements for Summation of External and Internal Doses</heading><content>(a) If the licensee is required to monitor under both §336.316(1) and (2) of this title (relating to Conditions Requiring Individual Monitoring of External and Internal Occupational Dose), the licensee shall demonstrate compliance with the dose limits by summing external and internal doses. If the licensee is required to monitor only under §336.316(1) of this title or only under §336.316(2) of this title, then summation is not required to demonstrate compliance with the dose limits. The licensee may demonstrate compliance with the requirements for summation of external and internal doses by meeting the conditions specified in subsections (b), (c), and (d) of this section. (The dose equivalents for the lens of the eye, the skin, and the extremities are not included in the summation but are subject to separate limits.)(b) If the only intake of radionuclides is by inhalation, the total effective dose equivalent limit is not exceeded if the sum of the deep-dose equivalent divided by the total effective dose equivalent limit and one of the following does not exceed 1:(1) the sum of the fractions of the inhalation annual limits on intake (ALI) for each radionuclide; or(2) the total number of derived air concentration-hours (DAC-hours) for all radionuclides divided by 2,000; or(3) the sum of the calculated committed effective dose equivalents to all significantly irradiated organs or tissues (T) calculated from bioassay data using appropriate biological models and expressed as a fraction of the annual limit. For purposes of this requirement, an organ or tissue is deemed to be significantly irradiated if, for that organ or tissue, the product of the weighting factor (w[sub]T[/sub]) and the committed dose equivalent (H[sub]T,50[/sub]) per unit intake is greater than 10% of the maximum weighted value of H[sub]T,50[/sub] (i.e., w[sub]T[/sub]H[sub]T,50[/sub]) per unit intake for any organ or tissue.(c) If the occupationally-exposed individual also receives an intake of radionuclides by oral ingestion greater than 10% of the applicable oral ALI, the licensee shall account for this intake and include it in demonstrating compliance with the limits.(d) The licensee shall evaluate and, to the extent practical, account for intakes through wounds or skin absorption. (The intake through intact skin has been included in the calculation of DAC for hydrogen-3 and does not need to be further evaluated under this subsection.)</content><note type="source"><p>Source Note: The provisions of this §336.306 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.307"><num value="336.307">§336.307</num><heading>Determination of External Dose from Airborne Radioactive Material</heading><content>(a) Licensees shall, when determining the dose from airborne radioactive material, include the contribution to the deep-dose equivalent, lens dose equivalent, and shallow-dose equivalent from external exposure to the radioactive cloud. See notes 1 and 2 of §336.359, Appendix B, of this title (relating to Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage).(b) Airborne radioactivity measurements and DAC values shall not be used as the primary means to assess the deep-dose equivalent when the airborne radioactive material includes radionuclides other than noble gases or if the cloud of airborne radioactive material is not relatively uniform. The determination of the deep-dose equivalent to an individual shall be based upon measurements using instruments or individual monitoring devices.</content><note type="source"><p>Source Note: The provisions of this §336.307 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective August 30, 2001, 26 TexReg 6309.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.308"><num value="336.308">§336.308</num><heading>Determination of Internal Exposure</heading><content>(a) For purposes of assessing dose used to determine compliance with occupational dose equivalent limits, the licensee shall, when required under §336.316 of this title (relating to Conditions Requiring Individual Monitoring of External and Internal Occupational Dose), take suitable and timely measurements of:(1) concentrations of radioactive materials in air in work areas; or(2) quantities of radionuclides in the body; or(3) quantities of radionuclides excreted from the body; or(4) combinations of these measurements.(b) Unless respiratory protection equipment is used, as provided in §336.321 of this title (relating to Use of Individual Respiratory Protection Equipment), or the assessment of intake is based on bioassays, the licensee shall assume that an individual inhales radioactive material at the airborne concentration in which the individual is present.(c) When specific information on the physical and biochemical properties of the radionuclides taken into the body or the behavior of the material in an individual is known, the licensee may:(1) use that information to calculate the committed effective dose equivalent and shall document that information, if used, in the individual's record; and(2) upon prior approval in the license by the commission, adjust the DAC or ALI values to reflect the actual physical and chemical characteristics of airborne radioactive material (e.g., aerosol size distribution or density); and(3) separately assess the contribution of fractional intakes of Class D, W, or Y compounds of a given radionuclide to the committed effective dose equivalent. See §336.359, Appendix B, of this title (relating to Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage).(d) If the licensee chooses to assess intakes of Class Y material using the measurements given in subsection (a)(2) or (3) of this section, the licensee shall delay the recording and reporting of the assessments for periods up to seven months, unless otherwise required by §336.335 of this title (relating to Reporting Requirements for Incidents) or §336.352 of this title (relating to Reports of Exposures, Radiation Levels, and Concentrations of Radioactive Material Exceeding the Limits). This delay permits the licensee to make additional measurements basic to the assessments.(e) If the identity and concentration of each radionuclide in a mixture are known, the fraction of the DAC applicable to the mixture for use in calculating DAC-hours shall be either:(1) the sum of the ratios of the concentration to the appropriate DAC value (e.g., D, W, or Y) from §336.359, Appendix B, of this title for each radionuclide in the mixture; or(2) the ratio of the total concentration for all radionuclides in the mixture to the most restrictive DAC value for any radionuclide in the mixture.(f) If the identity of each radionuclide in a mixture is known, but the concentration of one or more of the radionuclides in the mixture is not known, the DAC for the mixture shall be the most restrictive DAC of any radionuclide in the mixture.(g) When a mixture of radionuclides in air exists, a licensee may disregard certain radionuclides in the mixture if:(1) The licensee uses the total activity of the mixture in demonstrating compliance with the dose limits in §336.305 of this title (relating to Occupational Dose Limits for Adults) and in complying with the monitoring requirements in §336.316(2) of this title; and(2) The concentration of any radionuclide disregarded is less than 10% of its DAC; and(3) The sum of these percentages for all of the radionuclides disregarded in the mixture does not exceed 30%.(h) When determining the committed effective dose equivalent, the following information may be considered:(1) To calculate the committed effective dose equivalent, the licensee may assume that the inhalation of one ALI, or an exposure of 2,000 DAC-hours, results in a committed effective dose equivalent of 5 rems (0.05 sievert) for radionuclides that have their ALIs or DACs based on the committed effective dose equivalent.(2) When the ALI (and the associated DAC) is determined by the nonstochastic organ dose limit of 50 rems (0.5 sievert), the intake of radionuclides that would result in a committed effective dose equivalent of 5 rems (0.05 sievert) (the stochastic ALI) is listed in parentheses in Table I of §336.359, Appendix B, of this title. In this case, the licensee may, as a simplifying assumption, use the stochastic ALI to determine committed effective dose equivalent. However, if the licensee uses the stochastic ALI, the licensee shall also demonstrate that the limit in §336.305(a)(1)(B) of this title is met.</content><note type="source"><p>Source Note: The provisions of this §336.308 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.309"><num value="336.309">§336.309</num><heading>Determination of Prior Occupational Dose</heading><content>(a) For each individual who is likely to receive in a year an occupational dose requiring monitoring under §336.316 of this title (relating to Conditions Requiring Individual Monitoring of External and Internal Occupational Dose), the licensee shall determine the occupational radiation dose received during the current year.(b) Before permitting an individual to participate in a planned special exposure, the licensee shall determine:(1) the internal and external doses from all previous planned special exposures; and(2) all doses in excess of the limits, including doses received during accidents and emergencies, received during the lifetime of the individual.(c) In complying with the requirements of subsection (a) or (b) of this section, a licensee may:(1) accept, as a record of the occupational dose that the individual received during the current year, a written signed statement from the individual, or from the individual's most recent employer for work involving radiation exposure, that discloses the nature and the amount of any occupational dose that the individual received during the current year; and(2) accept, as the record of lifetime cumulative radiation dose, an up-to-date form "Cumulative Occupational Exposure History" (see §336.367, Appendix J of this title (relating to Appendix J. Cumulative Occupational Exposure History)) or equivalent, signed by the individual and countersigned by an appropriate official of the most recent employer for work involving radiation exposure, or the individual's current employer, if the individual is not employed by the licensee; and(3) obtain reports of the individual's dose equivalent from the most recent employer for work involving radiation exposure, or the individual's current employer, if the individual is not employed by the licensee, by telephone, telegram, electronic media, or letter. The licensee shall request a written verification of the dose data if the authenticity of the transmitted report cannot be established.(d) The licensee shall record individual exposure histories.(1) The licensee shall record the exposure history of each individual, as required by subsection (a) or (b) of this section, on form "Cumulative Occupational Exposure History" (see §336.367, Appendix J of this title) or other clear and legible record which includes all of the information required on that form. The form or record shall show each period in which the individual received occupational exposure to radiation or radioactive material and shall be signed by the individual who received the exposure. For each period for which the licensee obtains reports, the licensee shall use the dose shown in the report in preparing form "Cumulative Occupational Exposure History" (see §336.367, Appendix J of this title) or equivalent. For any period for which the licensee does not obtain a report, the licensee shall place a notation on form "Cumulative Occupational Exposure History" (see §336.367, Appendix J of this title) or equivalent indicating the periods of time for which data are not available.(2) Licensees are not required to separate historical dose, obtained and recorded before January 1, 1994, into external dose equivalent(s) and internal committed dose equivalent(s). Further, occupational exposure histories obtained and recorded on form "Cumulative Occupational Exposure History" (see §336.367, Appendix J of this title) or equivalent before January 1, 1994, would not have included effective dose equivalent but may be used in the absence of specific information on the intake of radionuclides by the individual.(e) If the licensee is unable to obtain a complete record of an individual's current and previously accumulated occupational dose, the licensee shall assume:(1) in establishing administrative controls under §336.305(f) of this title (relating to Occupational Dose Limits for Adults) for the current year, that the allowable dose limit for the individual is reduced by 1.25 rems (12.5 millisieverts) for each quarter for which records are unavailable and that the individual was engaged in activities that could have resulted in occupational radiation exposure; and(2) that the individual is not available for planned special exposures.(f) The licensee shall retain the records on form "Cumulative Occupational Exposure History" (see §336.367, Appendix J of this title) or equivalent until the executive director terminates each pertinent license requiring this record. The licensee shall retain records used in preparing form "Cumulative Occupational Exposure History" (see §336.367, Appendix J of this title) for three years after the record is made. This includes records required under the standards for protection against radiation in effect prior to January 1, 1994.</content><note type="source"><p>Source Note: The provisions of this §336.309 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective February 2, 2012, 37 TexReg 335.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.310"><num value="336.310">§336.310</num><heading>Planned Special Exposures</heading><content>A licensee may authorize an adult worker to receive doses in addition to and accounted for separately from the doses received under the limits specified in §336.305 of this title (relating to Occupational Dose Limits for Adults) provided that each of the following conditions is satisfied:(1) The licensee authorizes a planned special exposure only in an exceptional situation when alternatives that might avoid the dose estimated to result from the planned special exposure are unavailable or impractical.(2) The licensee, and employer if the employer is not the licensee, specifically authorizes the planned special exposure, in writing, before the exposure occurs.(3) Before a planned special exposure, the licensee ensures that each individual involved is:(A) informed of the purpose of the planned operation; and(B) informed of the estimated doses and associated potential risks and specific radiation levels or other conditions that might be involved in performing the task; and(C) instructed in the measures to be taken to keep the dose as low as is reasonably achievable considering other risks that may be present.(4) Before permitting an individual to participate in a planned special exposure, the licensee ascertains prior doses as required by §336.309(b) of this title (relating to Determination of Prior Occupational Dose) during the lifetime of the individual for each individual involved.(5) Subject to §336.305(b) of this title, the licensee shall not authorize a planned special exposure that would cause an individual to receive a dose from all planned special exposures and all doses in excess of the limits to exceed:(A) the numerical values of any of the dose limits in §336.305(a) of this title in any year; and(B) five times the annual dose limits in §336.305(a) of this title during the individual's lifetime.(6) The licensee maintains records of the conduct of a planned special exposure in accordance with §336.345 of this title (relating to Records of Planned Special Exposures) and submits a written report to the executive director in accordance with §336.353 of this title (relating to Reports of Planned Special Exposures).(7) The licensee records the best estimate of the dose resulting from the planned special exposure in the individual's record and informs the individual, in writing, of the dose within 30 days from the date of the planned special exposure. The dose from planned special exposures shall not be considered in controlling future occupational dose of the individual under §336.305(a) of this title but shall be included in evaluations required by paragraphs (4) and (5) of this section.</content><note type="source"><p>Source Note: The provisions of this §336.310 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective August 30, 2001, 26 TexReg 6309.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.311"><num value="336.311">§336.311</num><heading>Occupational Dose Limits for Minors</heading><content>The annual occupational dose limits for minors are 10% of the annual occupational dose limits specified for adult workers in §336.305 of this title (relating to Occupational Dose Limits for Adults).</content><note type="source"><p>Source Note: The provisions of this §336.311 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.312"><num value="336.312">§336.312</num><heading>Dose Equivalent to an Embryo/Fetus</heading><content>(a) The licensee shall ensure that the dose to an embryo/fetus during the entire pregnancy, due to occupational exposure of a declared pregnant woman, does not exceed 0.5 rem (5 millisieverts). See §336.346 of this title (relating to Records of Individual Monitoring Results) for recordkeeping requirements.(b) The licensee shall make efforts to avoid substantial variation above a uniform monthly exposure rate to a declared pregnant woman so as to satisfy the limit in subsection (a) of this section. (The National Council on Radiation Protection and Measurements recommended in NCRP Report No. 91, "Recommendations on Limits for Exposure to Ionizing Radiation" (June 1, 1987), that no more than 0.05 rem (0.5 millisievert) to the embryo/fetus be received in any one month.)(c) The dose to an embryo/fetus shall be taken as the sum of:(1) the deep-dose equivalent to the declared pregnant woman; and(2) the dose to the embryo/fetus resulting from radionuclides in the embryo/fetus and radionuclides in the declared pregnant woman.(d) If the dose equivalent to the embryo/fetus is found to have exceeded 0.5 rem (5 millisieverts) or is within 0.05 rem (0.5 millisievert) of this dose, by the time the woman declares the pregnancy to the licensee, the licensee shall be deemed to be in compliance with subsection (a) of this section if the additional dose equivalent to the embryo/fetus does not exceed 0.05 rem (0.5 millisievert) during the remainder of the pregnancy.</content><note type="source"><p>Source Note: The provisions of this §336.312 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective August 30, 2001, 26 TexReg 6309.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.313"><num value="336.313">§336.313</num><heading>Dose Limits for Individual Members of the Public</heading><content>(a) Each licensee shall conduct operations so that:(1) The total effective dose equivalent to individual members of the public from the licensed operation does not exceed 0.1 rem (one millisievert) in a year, exclusive of the dose contribution from the licensee's disposal of radioactive material into sanitary sewerage in accordance with §336.215 of this title (relating to Disposal by Release into Sanitary Sewerage); and(2) The dose in any unrestricted area from external sources does not exceed 0.002 rem (0.02 millisievert) in any one hour.(b) If the licensee permits members of the public to have access to restricted areas, the limits for members of the public continue to apply to those individuals.(c) A licensee or an applicant for a license shall apply for prior commission authorization to operate up to an annual dose limit for an individual member of the public of 0.5 rem (five millisieverts). The licensee or applicant shall include the following information in this application:(1) demonstration of the need for and the expected duration of operations in excess of the limit in subsection (a) of this section;(2) the licensee's or applicant's program to assess and control dose within the 0.5 rem (five millisieverts) annual limit; and(3) the procedures to be followed to maintain the dose as low as is reasonably achievable.(d) In addition to the requirements of this chapter, a licensee shall also be subject to the provisions of the EPA's generally applicable environmental radiation standards in 40 Code of Federal Regulations Part 190 (Environmental Radiation Protection Standards for Nuclear Power Operations).(e) The commission may impose additional restrictions on radiation levels in unrestricted areas and on the total quantity of radionuclides that a licensee may release in effluents in order to restrict the collective dose.</content><note type="source"><p>Source Note: The provisions of this §336.313 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.314"><num value="336.314">§336.314</num><heading>Compliance with Dose Limits for Individual Members of the Public</heading><content>(a) The licensee shall make or cause to be made, as appropriate, surveys of radiation levels in unrestricted areas and radioactive materials in effluents released to unrestricted areas to demonstrate compliance with the dose limits for individual members of the public in §336.313 of this title (relating to Dose Limits for Individual Members of the Public).(b) A licensee shall show compliance with the annual dose limit in §336.313 of this title by:(1) demonstrating by measurement or calculation that the total effective dose equivalent to the individual likely to receive the highest dose from the licensed operation does not exceed the annual dose limit; or(2) demonstrating that:(A) the annual average concentrations of radioactive material released in gaseous and liquid effluents at the boundary of the unrestricted area do not exceed the values specified in Table II of §336.359, Appendix B, of this title (relating to Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage); and(B) if an individual were continually present in an unrestricted area, the dose from external sources would not exceed 0.002 rem (0.02 millisievert) in an hour and 0.05 rem (0.5 millisievert) in a year.(c) Upon approval in the license by the commission, the licensee may adjust the effluent concentration values in §336.359, Appendix B, Table II, of this title for members of the public, to take into account the actual physical and chemical characteristics of the effluents (e.g., aerosol size distribution, solubility, density, radioactive decay equilibrium, and chemical form).</content><note type="source"><p>Source Note: The provisions of this §336.314 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.315"><num value="336.315">§336.315</num><heading>General Requirements for Surveys and Monitoring</heading><content>(a) Each licensee shall make, or cause to be made, surveys that:(1) are necessary for the licensee to comply with the rules in this chapter or conditions of the license; and(2) are reasonable under the circumstances to evaluate:(A) the magnitude and extent of radiation levels;(B) concentrations or quantities of radioactive material; and(C) the potential radiological hazards of the radiation levels and residual radioactivity detected.(b) The licensee shall ensure that instruments and equipment used for quantitative radiation measurements (e.g., dose rate and effluent monitoring) are calibrated:(1) by a person licensed by the Texas Department of State Health Services, another Agreement State, a Licensing State, or the United States Nuclear Regulatory Commission to perform this service;(2) at intervals not to exceed 12 months, unless a more restrictive time interval is specified in another part of this chapter or in the license; and(3) for the types of radiation measured and at appropriate energies.(c) All personnel dosimeters, except for direct and indirect reading pocket ionization chambers and those dosimeters used to measure the dose to any extremity, that require processing to determine the radiation dose and that are used by licensees to comply with §336.305 of this title (relating to Occupational Dose Limits for Adults), with other applicable provisions of this chapter, or with conditions specified in a license shall be processed and evaluated by a dosimetry processor:(1) holding current personnel dosimetry accreditation from the National Voluntary Laboratory Accreditation Program (NVLAP) of the National Institute of Standards and Technology; and(2) approved in this accreditation process for the type of radiation or radiations included in the NVLAP program that most closely approximates the type of radiation or radiations for which the individual wearing the dosimeter is monitored.(d) Each licensee shall ensure that individuals who are required to use an individual monitoring device follow appropriate procedures in regard to selection of the type of device, location where it is worn, period of use, and precautions to prevent exposures that are not occupational dose to that individual.(e) Regardless of §336.343(a) of this title (relating to Records of Surveys), records from surveys describing the location and amount of subsurface residual radioactivity identified at the site must be kept with records important for decommissioning, and such records must be retained in accordance with §336.621 of this title (relating to Recordkeeping for Decommissioning), as applicable.</content><note type="source"><p>Source Note: The provisions of this §336.315 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective August 30, 2001, 26 TexReg 6309; amended to be effective December 8, 2016, 41 TexReg 9583.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.316"><num value="336.316">§336.316</num><heading>Conditions Requiring Individual Monitoring of External and Internal Occupational Dose</heading><content>Each licensee shall monitor exposures to radiation and radioactive material at levels sufficient to demonstrate compliance with the occupational dose limits of this subchapter. As a minimum, the following monitoring is required:(1) Each licensee shall monitor occupational exposure to radiation from licensed and unlicensed radiation sources under the control of the licensee and shall supply and require the use of individual monitoring devices by:(A) adults likely to receive, in one-year from sources external to the body, a dose in excess of 10% of the limits in §336.305(a) of this title (relating to Occupational Dose Limits for Adults);(B) minors likely to receive, in one year from sources external to the body, a deep dose equivalent in excess of 0.1 rem (one millisievert), a lens dose equivalent in excess of 0.15 rem (1.5 millisievert), or a shallow dose equivalent to the skin or to the extremities in excess of 0.5 rem (five millisievert);(C) declared pregnant women likely to receive during the entire pregnancy, from radiation sources external to the body, a deep dose equivalent in excess of 0.1 rem (one millisievert); and(D) individuals entering a high or very high radiation area.(2) Each licensee shall monitor (see §336.308 of this title (relating to Determination of Internal Exposure)) the occupational intake of radioactive material by and assess the committed effective dose equivalent to:(A) adults likely to receive, in one-year, an intake in excess of 10% of the applicable ALI(s) in Table I, Columns 1 and 2, of §336.359, Appendix B, of this title (relating to Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage); and(B) minors likely to receive, in one year, a committed effective dose equivalent in excess of 0.1 rem (one millisievert); and(C) declared pregnant women likely to receive, during the entire pregnancy, a committed effective dose equivalent in excess of 0.1 rem (one millisievert).</content><note type="source"><p>Source Note: The provisions of this §336.316 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective August 30, 2001, 26 TexReg 6309.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.317"><num value="336.317">§336.317</num><heading>Control of Access to High Radiation Areas</heading><content>(a) The licensee shall ensure that each entrance or access point to a high radiation area has one or more of the following features:(1) a control device that, upon entry into the area, causes the level of radiation to be reduced below that level at which an individual might receive a deep dose equivalent of 0.1 rem (1 millisievert) in 1 hour at 30 centimeters from the source of radiation from any surface that the radiation penetrates; or(2) a control device that energizes a conspicuous visible or audible alarm signal so that the individual entering the high radiation area and the supervisor of the activity are made aware of the entry; or(3) entryways that are locked, except during periods when access to the areas is required, with positive control over each individual entry.(b) In place of the controls required by subsection (a) of this section for a high radiation area, the licensee may substitute continuous direct or electronic surveillance that is capable of preventing unauthorized entry.(c) The licensee may apply to the commission for approval of alternative methods for controlling access to high radiation areas.(d) The licensee shall establish the controls required by subsections (a) and (c) of this section in a way that does not prevent individuals from leaving a high radiation area.(e) The licensee is not required to control each entrance or access point to a room or other area that is a high radiation area solely because of the presence of radioactive materials prepared for transport and packaged and labeled in accordance with the rules of the United States Department of Transportation provided that:(1) the packages do not remain in the area longer than 3 days; and(2) the dose rate at 1 meter from the external surface of any package does not exceed 0.01 rem (0.1 millisievert) per hour.</content><note type="source"><p>Source Note: The provisions of this §336.317 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.318"><num value="336.318">§336.318</num><heading>Control of Access to Very High Radiation Areas</heading><content>In addition to the requirements in §336.317 of this title (relating to Control of Access to High Radiation Areas), the licensee shall institute measures to ensure that an individual is not able to gain unauthorized or inadvertent access to areas in which radiation levels could be encountered at 500 rads (5 grays) or more in one hour at 1 meter from a source of radiation or any surface through which the radiation penetrates.</content><note type="source"><p>Source Note: The provisions of this §336.318 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.319"><num value="336.319">§336.319</num><heading>Use of Process or Other Engineering Controls</heading><content>The licensee shall use, to the extent practical, process or other engineering controls (e.g., containment, decontamination, or ventilation) to control the concentrations of radioactive material in air.</content><note type="source"><p>Source Note: The provisions of this §336.319 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective August 30, 2001, 26 TexReg 6309.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.320"><num value="336.320">§336.320</num><heading>Use of Other Controls</heading><content>(a) When it is not practical to apply process or other engineering controls to control the concentrations of radioactive material in air to values below those that define an airborne radioactivity area, the licensee shall, consistent with maintaining the total effective dose equivalent as low as is reasonably achievable (ALARA), increase monitoring and limit intakes by one or more of the following means:(1) control of access;(2) limitation of exposure times;(3) use of respiratory protection equipment; or(4) other controls.(b) If the licensee performs an ALARA analysis to determine whether or not respirators should be used, the licensee may consider safety factors other than radiological factors. The licensee should also consider the impact of respirator use on workers' industrial health and safety.</content><note type="source"><p>Source Note: The provisions of this §336.320 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective August 30, 2001, 26 TexReg 6309.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.321"><num value="336.321">§336.321</num><heading>Use of Individual Respiratory Protection Equipment</heading><content>(a) If the licensee assigns or permits the use of respiratory protection equipment to limit the intake of radioactive material:(1) The licensee shall use only respiratory protection equipment that is tested and certified by the National Institute for Occupational Safety and Health (NIOSH), except as provided in paragraph (2) of this subsection.(2) If the licensee wishes to use equipment that has not been tested or certified by NIOSH, or for which there is no schedule for testing or certification, the licensee shall submit an application for authorized use of this equipment, except as provided in this section. The application must include evidence that the material and performance characteristics of the equipment are capable of providing the proposed degree of protection under anticipated conditions of use. This must be demonstrated either by licensee testing or on the basis of reliable test information.(3) The licensee shall implement and maintain a respiratory protection program that includes:(A) air sampling sufficient to identify the potential hazard, permit proper equipment selection, and estimate doses;(B) surveys and bioassays, as necessary, to evaluate actual intakes;(C) testing of respirators for operability (user seal check for face sealing devices and functional check for others) immediately before each use;(D) written procedures regarding:(i) monitoring, including air sampling and bioassays;(ii) supervision and training of respirator users;(iii) fit testing;(iv) respirator selection;(v) breathing air quality;(vi) inventory and control:(vii) storage, issuance, maintenance, repair, testing, and quality assurance of respiratory protection equipment;(viii) recordkeeping; and(ix) limitations on periods of respirator use and relief from respirator use;(E) determination by a physician that the individual user is medically fit to use respiratory protection equipment before:(i) the initial fitting of a face sealing respirator;(ii) the first field use of non-face sealing respirators; and(iii) either every 12 months thereafter, or periodically at a frequency determined by a physician.(F) fit testing, with fit factor greater than or equal to ten times the assigned protection factor for negative pressure devices, and a fit factor greater than or equal to 500 for any positive pressure, continuous flow, and pressure-demand devices, before the first field use of tight fitting, face-sealing repirators and periodically thereafter at a frequency not to exceed one year. Fit testing must be performed with the facepiece operating in the negative pressure mode.(4) The licensee shall advise each respirator user that the user may leave the area at any time for relief from respirator use in the event of equipment malfunction, physical or psychological distress, procedural or communication failure, significant deterioration of operating conditions, or any other conditions that might require this relief.(5) The licensee shall also consider limitations appropriate to the type and mode of use. When selecting respiratory devices, the licensee shall provide for vision correction, adequate communication, low-temperature work environments, and the concurrent use of other safety or radiological protection equipment. The licensee shall use equipment in such a way as not to interfere with the proper operation of the respirator.(b) Standby rescue persons are required whenever one-piece atmosphere-supplying suits, or any combination of supplied air respiratory protection device and personnel protective equipment are used from which an unaided individual would have difficulty extricating himself or herself. The standby persons must be equipped with respiratory protection devices or other apparatus appropriate for the potential hazards. The standby rescue persons shall observe or otherwise maintain continuous communication with the workers (visual, voice, signal line, telephone, radio or other suitable means), and be immediately available to assist them in case of a failure of the air supply or for any other reason that requires relief from distress. A sufficient number of standby rescue persons must be immediately available to assist all users of this type of equipment and to provide effective emergency rescue if needed.(c) Atmosphere-supplying respirators must be supplied with respirable air of Grade D quality or better as defined by the Compressed Gas Association in publication G-7.1, "Commodity Specification for Air," 1997 and included in the regulations of the Occupational Safety and Health Administration (Title 29 Code of Federal Regulations §1910.134(i)(1)(ii)(A) - (E)). Grade D quality air criteria include:(1) oxygen content (v/v) of 19.5-23.5%;(2) hydrocarbon (condensed) content of five milligrams per cubic meter of air or less:(3) carbon monoxide (CO) content of ten parts per million (ppm) or less;(4) carbon dioxide content of 1,000 ppm or less; and(5) lack of noticeable odor.(d) The licensee shall ensure that no objects, materials, or substances, such as facial hair, or any conditions that interfere with the face-facepiece seal or valve function, and that are under the control of the respirator wearer, are present between the skin of the wearer's face and the sealing surface of a tight-fitting respirator facepiece.(e) In estimating the dose to individuals from intake of airborne radioactive materials, the concentration of radioactive material in the air that is inhaled when respirators are worn is initially assumed to be the ambient concentration in air without respiratory protection, divided by the assigned protection factor specified in §336.358 of this title (relating to Appendix A. Assigned Protection Factors for Respirators). If the dose is later found to be greater than the estimated dose, the corrected value must be used. If the dose is later found to be less than the estimated dose, the corrected value may be used.(f) The licensee shall obtain authorization from the executive director before using assigned protection factors in excess of those specified in §336.358 of this title (relating to Appendix A. Assigned Protection Factors for Respirators). The executive director may authorize a licensee to use higher assigned protection factors on receipt of an application that:(1) describes the situation for which a need exists for higher protection factors; and(2) demonstrates that the respiratory protection equipment provides these higher protection factors under the proposed conditions of use.</content><note type="source"><p>Source Note: The provisions of this §336.321 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective August 30, 2001, 26 TexReg 6309.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.322"><num value="336.322">§336.322</num><heading>Further Restrictions on the Use of Respiratory Protection Equipment</heading><content>The commission may impose restrictions in addition to those in §336.320 of this title (relating to Use of Other Controls), §336.321 of this title (relating to Use of Individual Respiratory Protection Equipment), and §336.358, Appendix A, of this title (relating to Protection Factors for Respirators) to:(1) ensure that the respiratory protection program of the licensee is adequate to limit doses to individuals from intakes of airborne radioactive materials consistent with maintaining the total effective dose equivalent as low as reasonably achievable; and(2) limit the extent to which a licensee may use respiratory protection equipment instead of process or other engineering controls.</content><note type="source"><p>Source Note: The provisions of this §336.322 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective August 30, 2001, 26 TexReg 6309.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.323"><num value="336.323">§336.323</num><heading>Security of Stored Radioactive Material</heading><content>The licensee shall secure from unauthorized removal or access licensed radioactive materials that are stored in unrestricted areas.</content><note type="source"><p>Source Note: The provisions of this §336.323 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.324"><num value="336.324">§336.324</num><heading>Control of Radioactive Material Not in Storage</heading><content>The licensee shall control and maintain constant surveillance of licensed radioactive material that is in an unrestricted area and that is not in storage.</content><note type="source"><p>Source Note: The provisions of this §336.324 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.325"><num value="336.325">§336.325</num><heading>Caution Signs</heading><content>(a) Standard radiation symbol. Unless otherwise authorized by the commission, the symbol prescribed by this section shall use the colors magenta, or purple, or black on yellow background. The symbol prescribed is the three-bladed design as follows:(b) Additional information on signs and labels. In addition to the contents of signs and labels prescribed in this subchapter, the licensee shall provide, on or near the required signs and labels, additional information, as appropriate, to make individuals aware of potential radiation exposures and to minimize the exposures.</content><note type="source"><p>Source Note: The provisions of this §336.325 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.326"><num value="336.326">§336.326</num><heading>Posting Requirements</heading><content>(a) Posting of radiation areas. The licensee shall post each radiation area with a conspicuous sign or signs bearing the radiation symbol and the words "CAUTION, RADIATION AREA."(b) Posting of high radiation areas. The licensee shall post each high radiation area with a conspicuous sign or signs bearing the radiation symbol and the words "CAUTION, HIGH RADIATION AREA" or "DANGER, HIGH RADIATION AREA."(c) Posting of very high radiation areas. The licensee shall post each very high radiation area with a conspicuous sign or signs bearing the radiation symbol and words "GRAVE DANGER, VERY HIGH RADIATION AREA."(d) Posting of airborne radioactivity areas. The licensee shall post each airborne radioactivity area with a conspicuous sign or signs bearing the radiation symbol and the words "CAUTION, AIRBORNE RADIOACTIVITY AREA" or "DANGER, AIRBORNE RADIOACTIVITY AREA."(e) Posting of areas or rooms in which licensed radioactive material is used or stored. The licensee shall post each area or room in which there is used or stored an amount of licensed material exceeding 10 times the quantity of such material specified in §336.360, Appendix C, of this title (relating to Quantities of Licensed Material Requiring Labeling) with a conspicuous sign or signs bearing the radiation symbol and the words "CAUTION, RADIOACTIVE MATERIAL(S)" or "DANGER, RADIOACTIVE MATERIAL(S)."</content><note type="source"><p>Source Note: The provisions of this §336.326 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.327"><num value="336.327">§336.327</num><heading>Exceptions to Posting Requirements</heading><content>A licensee is not required to post caution signs in areas or rooms containing radioactive materials for periods of less than 8 hours, if each of the following conditions is met:(1) The materials are constantly attended during these periods by an individual who takes the precautions necessary to prevent the exposure of individuals to radiation or radioactive materials in excess of the limits established in this subchapter; and(2) The area or room is subject to the licensee's control.</content><note type="source"><p>Source Note: The provisions of this §336.327 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.328"><num value="336.328">§336.328</num><heading>Labeling Containers</heading><content>(a) The licensee shall ensure that each container of licensed material bears a durable, clearly visible label bearing the radiation symbol and the words "CAUTION, RADIOACTIVE MATERIAL" or "DANGER, RADIOACTIVE MATERIAL." The label shall also provide sufficient information, such as the radionuclides present, an estimate of the quantity of radioactivity, the date for which the activity is estimated, radiation levels, kinds of materials, and mass enrichment, to permit individuals handling or using the containers, or working in the vicinity of the containers, to take precautions to avoid or minimize exposures.(b) Each licensee shall, before removal or disposal of empty uncontaminated containers to unrestricted areas, remove or deface the radioactive material label or otherwise clearly indicate that the container no longer contains radioactive materials.</content><note type="source"><p>Source Note: The provisions of this §336.328 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.329"><num value="336.329">§336.329</num><heading>Exemptions to Labeling Requirements</heading><content>A licensee is not required to label:(1) containers holding licensed material in quantities less than those listed in §336.360, Appendix C, of this title (relating to Quantities of Licensed Material Requiring Labeling);(2) containers holding licensed material in concentrations less than those specified in Table III of §336.359, Appendix B, of this title (relating to Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage);(3) containers attended by an individual who takes the precautions necessary to prevent the exposure of individuals in excess of the limits established by this subchapter;(4) containers when they are in transport and packaged and labeled in accordance with the rules of the United States Department of Transportation (labeling of packages containing radioactive material is required by the United States Department of Transportation if the amount and type of radioactive material exceeds the limits for an excepted quantity or article as defined and limited by rules in 49 CFR 173.403 and 49 CFR 173.421-424;(5) containers that are accessible only to individuals authorized to handle or use them, or to work in the vicinity of the containers, if the contents are identified to these individuals by a readily available written record. (Examples of containers of this type are containers in locations such as water-filled canals, storage vaults, or hot cells.) The record shall be retained as long as the containers are in use for the purpose indicated on the record; or(6) installed manufacturing or process equipment, such as piping and tanks.</content><note type="source"><p>Source Note: The provisions of this §336.329 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective December 11, 2024, 49 TexReg 10003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.330"><num value="336.330">§336.330</num><heading>Procedures for Receiving and Opening Packages</heading><content>(a) Each licensee who expects to receive a package containing quantities of radioactive material in excess of a Type A quantity, as defined in §336.2 of this title (relating to Definitions), shall make arrangements to receive:(1) the package when the carrier offers it for delivery; or(b) Each licensee shall monitor the external surfaces of a labeled (labeled with a Radioactive White I, Yellow II, or Yellow III label, as specified in United States Department of Transportation rules in 49 CFR 172.403 as amended through December 21, 1990, and 49 CFR 172.436-172.440 as amended through December 20, 1991) package for radioactive contamination unless the package contains:(1) only radioactive material in the form of gas or in special form, as defined in §336.2 of this title; and(2) quantities of radioactive material that are less than or equal to the Type A quantity, as defined in §336.2 of this title; and(3) monitor all packages known to contain radioactive material for radioactive contamination and radiation levels if there is evidence of degradation of package integrity, such as packages that are crushed, wet, or damaged.(c) The licensee shall perform the monitoring required by subsection (b) of this section as soon as practical after receipt of the package, but not later than 3 hours after the package is received at the licensee's facility if it is received during the licensee's normal working hours, or not later than 3 hours after the beginning of the next working day if it is received after working hours.(d) The licensee shall immediately notify the final delivery carrier and, by telephone and telegram, mailgram, or facsimile, the executive director and the Texas Department of Health when:(1) Removable radioactive surface contamination exceeds the limits of 10 CFR 71.87(i) as amended through September 28, 1995 (60 FedReg 50264) (Routine Determinations).(2) External radiation levels exceed the limits of 10 CFR 71.47 as amended through September 28, 1995 (60 FedReg 50264) (External Radiation Standards for All Packages).(e) Each licensee shall:(1) establish, maintain, and retain written procedures for safely opening packages in which radioactive material is received; and(2) ensure that the procedures are followed and that due consideration is given to special instructions for the type of package being opened.</content><note type="source"><p>Source Note: The provisions of this §336.330 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.331"><num value="336.331">§336.331</num><heading>Transfer of Radioactive Material</heading><content>(a) The licensee shall not transfer source material, by-product material, or other licensed radioactive material except as authorized under the rules in this subchapter.(b) Except as otherwise provided in the license and subject to the provisions of subsections (c) and (d) of this section, a licensee shall transfer source material, by-product material, or other licensed radioactive material:(1) to the agency (A licensee shall transfer material to the agency only after receiving prior approval from the agency. If the material to be transferred is special nuclear material, the quantity must not be sufficient to form a critical mass.);(2) to the United States Department of Energy;(3) to any person exempt from licensing requirements by the Texas Department of State Health Services (DSHS) under the Texas Health and Safety Code, §401.106(a), the rules in this chapter, or exempt from the licensing requirements of the United States Nuclear Regulatory Commission (NRC) or an Agreement State, to the extent permitted by those exemptions;(4) to any person authorized to receive this material under terms of a specific or a general license or its equivalent issued by the commission, DSHS, NRC, or any Agreement State, or to any person authorized to receive this material by the federal government; or(5) as otherwise authorized by the commission in writing by DSHS, any Agreement State, or the federal government.(c) Before transferring source material, by-product material, or other radioactive material to a specific licensee of the commission, DSHS, NRC, or an Agreement State or to a general licensee who is required to register with DSHS, NRC, or an Agreement State prior to receipt of the source material, by-product material, or other radioactive material, the licensee transferring the material shall verify that the transferee's license authorizes the receipt of the type, form, and quantity of radioactive material to be transferred.(d) The following methods for the verification required by subsection (c) of this section are acceptable.(1) The transferor shall possess and have read a current copy of the transferee's specific license or certificate of registration.(2) The transferor may possess a written certification by the transferee that the transferee is authorized by the license or certificate of registration to receive the type, form, and quantity of radioactive material to be transferred, specifying the license or certificate of registration number, issuing agency, and expiration date.(3) For emergency shipments, the transferor may accept oral certification by the transferee that the transferee is authorized by license or certificate of registration to receive the type, form, and quantity of radioactive material to be transferred, specifying the license or certificate of registration number, issuing agency, and expiration date, provided that the oral certification is confirmed in writing within ten days.(4) The transferor may obtain other sources of information compiled by a reporting service from official records of the commission, DSHS, NRC, or an Agreement State as to the identity of licensees and registrants and the scope and expiration dates of licenses and registrations.(5) When none of the methods of verification described in paragraphs (1) - (4) of this subsection are readily available or when a transferor desires to verify that information received by one of these methods is correct or up-to-date, the transferor may obtain and record confirmation from the commission, DSHS, NRC, or an Agreement State that the transferee is licensed to receive the source material, by-product material, or other radioactive material.(e) Transportation of radioactive material shall also be subject to applicable rules of the United States Department of Transportation, United States Postal Service, NRC, or DSHS.(f) The licensee shall keep records showing the transfer of any source material, by-product material, or other radioactive material.(g) Transfer of low-level radioactive waste by a waste generator, waste collector, or waste processor who ships this waste either directly, or indirectly through a collector or processor, to a licensed land disposal facility shall also be subject to applicable rules of DSHS. A commission licensee who transfers low-level radioactive waste for disposal at a licensed land disposal facility shall also be subject to applicable rules of DSHS with respect to transfers.(h) A licensed land disposal facility operator shall use and comply with the requirements of §336.363 of this title (relating to Appendix F. Requirements for Receipt of Low-Level Radioactive Waste for Disposal at Licensed Land Disposal Facilities and Uniform Manifests).(i) Any licensee shipping by-product material, as defined in §336.2(16)(C) - (E) of this title (relating to Definitions) concerning the definition of by-product material, intended for ultimate disposal must document the information required on the shipping manifest and transfer this recorded manifest information to the intended consignee.</content><note type="source"><p>Source Note: The provisions of this §336.331 adopted to be effective September 14, 2000, 25 TexReg 8989; amended to be effective February 2, 2012, 37 TexReg 335; amended to be effective December 11, 2024, 49 TexReg 10003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.332"><num value="336.332">§336.332</num><heading>Preparation of Radioactive Material for Transport</heading><content>(a) No licensee shall deliver any source material, by-product material, or other licensed radioactive material to a carrier for transport, unless:(1) the licensee complies with the applicable requirements of the rules, appropriate to the mode of transport, of the United States Department of Transportation insofar as those rules relate to the packing of radioactive material and to the monitoring, marking, and labeling of those packages or containers;(2) the licensee establishes procedures for opening and closing packages and containers in which radioactive material is transported to provide safety and to assure that, prior to the delivery to a carrier for transport, each package or container is properly closed for transport; and(3) the licensee assures that any special instructions needed to safely open the package or container are sent to or have been made available to the consignee prior to delivery of a package or container to a carrier for transport.(b) For the purpose of subsection (a) of this section, licensees who transport their own licensed material as private carriers are considered to have delivered the material to a carrier for transport.</content><note type="source"><p>Source Note: The provisions of this §336.332 adopted to be effective September 14, 2000, 25 TexReg 8989; amended to be effective December 11, 2024, 49 TexReg 10003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.335"><num value="336.335">§336.335</num><heading>Reporting Requirements for Incidents</heading><content>(a) Immediate notification. Each licensee shall notify the executive director as soon as possible, but not later than four hours after the discovery of an event that prevents immediate protective actions necessary to avoid exposures to radiation or radioactive materials that could exceed regulatory limits or releases of radioactive materials that could exceed limits (e.g., events may include fires, explosions, toxic gas releases, etc.). Notwithstanding any other requirements for notification, each licensee shall immediately report to the executive director each event involving licensed radioactive material possessed by the licensee that may have caused or threatens to cause any of the following conditions:(1) an individual to receive:(A) a total effective dose equivalent of 25 rems (0.25 sievert) or more;(B) a lens dose equivalent of 75 rems (0.75 sievert) or more; or(C) a shallow-dose equivalent to the skin or extremities or a total organ dose equivalent of 250 rads (2.5 grays) or more; or(2) the release of radioactive material inside or outside of a restricted area so that, had an individual been present for 24 hours, the individual could have received an intake five times the annual limit on intake (ALI). This provision does not apply to locations where personnel are not normally stationed during routine operations, such as hot-cells or process enclosures.(b) Twenty-four hour notification. Each licensee shall, within 24 hours of discovery of the event, report to the executive director any event involving loss of control of licensed material possessed by the licensee that may have caused, or threatens to cause, any of the following conditions:(1) an individual to receive, in a period of 24 hours:(A) total effective dose equivalent exceeding five rems (0.05 sievert);(B) a lens dose equivalent exceeding 15 rems (0.15 sievert); or(C) a shallow-dose equivalent to the skin or extremities or a total organ dose equivalent exceeding 50 rems (0.5 sievert); or(2) the release of radioactive material inside or outside of a restricted area so that, had an individual been present for 24 hours, the individual could have received an intake in excess of one ALI. This provision does not apply to locations where personnel are not normally stationed during routine operations, such as hot-cells or process enclosures; or(3) an unplanned contamination event that:(A) requires access to the contaminated area, by workers or the public, to be restricted for more than 24 hours by imposing additional radiological controls or by prohibiting entry into the area;(B) involves a quantity of material greater than five times the lowest annual limit on intake specified in §336.359 of this title (relating to Appendix B. Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage); and(C) has access to the area restricted for a reason other than to allow isotopes with a half-life of less than 24 hours to decay prior to decontamination; or(4) an event in which equipment is disabled or fails to function as designed when:(A) the equipment is required by rule or license condition to prevent releases exceeding regulatory limits, to prevent exposures to radiation and radioactive materials exceeding regulatory limits, or to mitigate the consequences of an accident;(B) the equipment is required to be available and operable when it is disabled or fails to function; and(C) no redundant equipment is available and operable to perform the required safety function; or(5) an event that requires unplanned medical treatment at a medical facility of an individual with spreadable radioactive contamination on the individual's clothing or body; or(6) an unplanned fire or explosion damaging any radioactive material or any device, container, or equipment containing radioactive material when:(A) the quantity of material involved is greater than five times the lowest annual limit on intake specified in §336.359 of this title; and(B) the damage affects the integrity of the radioactive material or its container.(c) Preparation and submission of reports. Reports made by licensees in response to the requirements of this section must be made as follows.(1) Telephone report. Licensees shall make reports required by subsections (a) and (b) of this section by telephone, accompanied by a facsimile, to the executive director. To the extent that the information is available at the time of notification, the information provided in these reports must include:(A) the caller's name and telephone number;(B) a description of the event, including date and time;(C) the exact location of the event;(D) the isotopes, quantities, and chemical and physical form of the radioactive material involved; and(E) any personnel radiation exposure data available.(2) Written report. Each licensee who makes a report required by subsections (a) and (b) of this section shall submit a written follow-up report to the executive director within 30 days of the initial report. Written reports prepared under other regulations may be submitted to fulfill this requirement if the reports contain all of the necessary information. These written reports must be sent to the executive director. The reports must include:(A) a description of the event, including the probable cause and the manufacturer and model number (if applicable) of any equipment that failed or malfunctioned;(B) the exact location of the event;(C) the isotopes, quantities, and chemical and physical form of the radioactive material involved;(D) date and time of the event;(E) corrective actions taken or planned and the results of any evaluations or assessments; and(F) the extent of exposure of individuals to radiation or to radioactive materials. The licensee shall prepare the report so that names of individuals are stated in a separate and detachable part of the report.(d) Confirmation of notification. Licensees shall make the reports required by subsections (a) and (b) of this section by telephone and shall confirm the telephone report within 24 hours by telegram, mailgram, or facsimile.(e) Exception to notification. The provisions of this section do not apply to doses that result from planned special exposures, provided those doses are within the limits for planned special exposures and are reported under §336.353 of this title (relating to Reports of Planned Special Exposures).</content><note type="source"><p>Source Note: The provisions of this §336.335 adopted to be effective September 14, 2000, 25 TexReg 8989; amended to be effective August 30, 2001, 26 TexReg 6309.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.336"><num value="336.336">§336.336</num><heading>Tests</heading><content>(a) Each licensee shall perform, upon instructions from the executive director, or shall permit the executive director to perform such tests as the executive director deems appropriate or necessary for the administration of the rules in this chapter including, but not limited to, tests of:(1) source material, by-product material, or other licensed radioactive material;(2) facilities where these materials are used, stored, or disposed;(3) radiation detection and monitoring instruments; and(4) other equipment and devices used in connection with utilization, storage, or disposal of source material, by-product material, or other licensed radioactive material.(b) The requirements of this section do not apply to licenses issued under Subchapter H of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste).</content><note type="source"><p>Source Note: The provisions of this §336.336 adopted to be effective September 14, 2000, 25 TexReg 8989; amended to be effective December 11, 2024, 49 TexReg 10003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.338"><num value="336.338">§336.338</num><heading>General Recordkeeping Requirements for Disposal</heading><content>(a) Each person who possesses or uses a source of radiation shall maintain:(1) records of the disposal of sources of radiation, including special wastes and transferred wastes, by incineration, by sanitary sewerage, by any alternate method of disposal, or by burial in soil including burials authorized under the Atomic Energy Act by the Atomic Energy Commission or the United States Nuclear Regulatory Commission and by the Texas Department of Health rules before May 1977;(2) appropriate records that show the radiation exposure of each individual for whom personnel monitoring is required by the agency's rules, licenses, registrations, and orders; and(3) other records the agency requires.(b) Copies of records required to be maintained under subsection (a) of this section shall be submitted to the agency on request.(c) A person who possesses or uses a source of radiation shall furnish to each employee for whom personnel monitoring is required a copy of the employee's personal exposure record at any time the employee has received exposure that exceeds the maximum permissible levels provided by the agency's rules and on termination of employment. The person shall furnish to an employee on request a copy of the employee's annual exposure record.</content><note type="source"><p>Source Note: The provisions of this §336.338 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.339"><num value="336.339">§336.339</num><heading>Form of Records</heading><content>Each record required by this subchapter shall be legible throughout the specified retention period. The record shall be the original or a reproduced copy or a microform, provided that the copy or microform is authenticated by authorized personnel and that the microform is capable of producing a clear copy throughout the required retention period. The record may also be stored in electronic media with the capability for producing legible, accurate, and complete records during the required retention period. Records, such as letters, drawings, and specifications, shall include all pertinent information, such as stamps, initials, and signatures. The licensee shall maintain adequate safeguards against tampering with and loss of records.</content><note type="source"><p>Source Note: The provisions of this §336.339 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.341"><num value="336.341">§336.341</num><heading>General Recordkeeping Requirements for Licensees</heading><content>(a) Each licensee shall use the units curie, rad, and rem, including multiples and subdivisions, and shall clearly indicate the units of all quantities on records required by this subchapter. Disintegrations per minute may be indicated on records of surveys performed to determine compliance with §336.605 of this title (relating to Surface Contamination Limits for Facilities, Equipment, and Materials) and §336.364, Appendix G, of this title (relating to Acceptable Surface Contamination Levels).(b) In the records required by this chapter, the licensee may record quantities in International System of Units (SI) units in parentheses following each of the units specified in subsection (a) of this section. However, all quantities must be recorded as stated in subsection (a) of this section.(c) Notwithstanding the requirements of subsection (a) of this section, information on shipment manifests for wastes received at a licensed land disposal facility, as required by §336.331(h) of this title (relating to Transfer of Radioactive Material), shall be recorded in SI units (becquerel, gray, and sievert) or in SI and units as specified in subsection (a) of this section.(d) The licensee shall make a clear distinction among the quantities entered on the records required by this subchapter, such as total effective dose equivalent, shallow-dose equivalent, lens dose equivalent, deep-dose equivalent, and committed effective dose equivalent.(e) Each licensee shall maintain records showing the receipt, transfer, and disposal of all source material, by-product material, or other licensed radioactive material. Each licensee shall also maintain any records and make any reports as may be required by the conditions of the license, by the rules in this chapter, or by orders of the commission. Copies of any records or reports required by the license, rules, or orders shall be submitted to the executive director or commission on request. All records and reports required by the license, rules, or orders shall be complete and accurate.(f) The licensee shall retain each record that is required by the rules in this chapter or by license conditions for the period specified by the appropriate rule or license condition. If a retention period is not otherwise specified, each record shall be maintained until the commission terminates each pertinent license requiring the record.(g) If there is a conflict between the commission's rules, license condition, or other written approval or authorization from the executive director pertaining to the retention period for the same type of record, the longest retention period specified takes precedence.(h) The executive director may require the licensee to provide the commission with copies of all records prior to termination of the license.</content><note type="source"><p>Source Note: The provisions of this §336.341 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 3, 1998, 23 TexReg 8837; amended to be effective September 14, 2000, 25 TexReg 8989; amended to be effective August 30, 2001, 26 TexReg 6309; amended to be effective December 11, 2024, 49 TexReg 10003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.342"><num value="336.342">§336.342</num><heading>Records of Radiation Protection Programs</heading><content>(a) Each licensee shall maintain records of the radiation protection program, including:(1) the provisions of the program; and(2) audits and other reviews of program content and implementation.(b) The licensee shall retain the records required by subsection (a)(1) of this section until the commission terminates each pertinent license requiring the record. The licensee shall retain the records required by subsection (a)(2) of this section for 3 years after the record is made.</content><note type="source"><p>Source Note: The provisions of this §336.342 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.343"><num value="336.343">§336.343</num><heading>Records of Surveys</heading><content>(a) Each licensee shall maintain records showing the results of surveys and calibrations required by §336.315 of this title (relating to General Requirements for Surveys and Monitoring) and §336.330(b) of this title (relating to Procedures for Receiving and Opening Packages). The licensee shall retain these records for 3 years after the record is made.(b) The licensee shall retain each of the following records until the commission terminates each pertinent license requiring the record:(1) results of surveys to determine the dose from external sources of radiation and used, in the absence of or in combination with individual monitoring data, in the assessment of individual dose equivalents. This includes those records of results of surveys to determine the dose from external sources and used, in the absence of or in combination with individual monitoring data, in the assessment of individual dose equivalents required under the standards for protection against radiation in effect before January 1, 1994;(2) results of measurements and calculations used to determine individual intakes of radioactive material and used in the assessment of internal dose. This includes those records of the results of measurements and calculations used to determine individual intakes of radioactive material and used in the assessment of internal dose required under the standards for protection against radiation in effect before January 1, 1994.(3) results of air sampling, surveys, and bioassays required under §336.321(a)(3)(A) and (B) of this title (relating to Use of Individual Respiratory Protection Equipment). This includes those records showing the results of air sampling, surveys, and bioassays required under the standards for protection against radiation in effect before January 1, 1994.(4) results of measurements and calculations used to evaluate the release of radioactive effluents to the environment. This includes those records of the results of measurements and calculations used to evaluate the release of radioactive effluents to the environment required under the standards for protection against radiation in effect before January 1, 1994.</content><note type="source"><p>Source Note: The provisions of this §336.343 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.344"><num value="336.344">§336.344</num><heading>Records of Prior Occupational Dose</heading><content>The licensee shall retain the records of prior occupational radiation dose and exposure history as specified in §336.309 of this title (relating to Determination of Prior Occupational Dose) on form "Cumulative Occupational Exposure History" (§336.367, Appendix J of this title (relating to Cumulative Occupational Exposure History)) or equivalent until the commission terminates each pertinent license requiring this record. The licensee shall retain records used in preparing form "Cumulative Occupational Exposure History" (§336.367, Appendix J of this title) or equivalent for 3 years after the record is made. This includes records required under the standards for protection against radiation in effect before January 1, 1994.</content><note type="source"><p>Source Note: The provisions of this §336.344 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.345"><num value="336.345">§336.345</num><heading>Records of Planned Special Exposures</heading><content>(a) For each use of the provisions of §336.310 of this title (relating to Planned Special Exposures) for planned special exposures, the licensee shall maintain records that describe:(1) the exceptional circumstances requiring the use of a planned special exposure;(2) the name of the management official who authorized the planned special exposure and a copy of the signed authorization;(3) what actions were necessary;(4) why the actions were necessary;(5) what precautions were taken to assure that doses were maintained as low as is reasonable achievable;(6) what individual and collective doses were expected to result; and(7) the doses actually received in the planned special exposure.(b) The licensee shall retain the records until the commission terminates each pertinent license requiring these records.</content><note type="source"><p>Source Note: The provisions of this §336.345 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.346"><num value="336.346">§336.346</num><heading>Records of Individual Monitoring Results</heading><content>(a) Record keeping requirement. Each licensee shall maintain records of doses received by all individuals for whom monitoring was required under §336.316 of this title (relating to Conditions Requiring Individual Monitoring of External and Internal Occupational Dose) and records of doses received during planned special exposures, accidents, and emergency conditions. Assessments of dose equivalent and records made using units in effect before January 1, 1994, need not be changed. These records shall include, when applicable:(1) the deep-dose equivalent to the whole body, lens dose equivalent, shallow-dose equivalent to the skin, and shallow-dose equivalent to the extremities;(2) the estimated intake of radionuclides (see §336.306 of this title (relating to Compliance with Requirements for Summation of External and Internal Doses));(3) the committed effective dose equivalent assigned to the intake of radionuclides;(4) the specific information used to assess the committed effective dose equivalent under §336.308(a) and (c) of this title (relating to Determination of Internal Exposure), and when required by §336.316 of this title (relating to Conditions Requiring Individual Monitoring of External and Internal Occupational Dose);(5) the total effective dose equivalent when required by §336.306 of this title; and(6) the total of the deep-dose equivalent and the committed dose to the organ receiving the highest total dose.(b) Recordkeeping frequency. The licensee shall make entries of the records specified in subsection (a) of this section at intervals not to exceed one-year.(c) Recordkeeping format. The licensee shall maintain the records specified in subsection (a) of this section on form "Occupational Exposure Record for a Monitoring Period" (see §336.368, Appendix K of this title (relating to Occupational Exposure Record for a Monitoring Period)), in accordance with the instructions for that form, or in clear and legible records containing all the information required by form.(d) Recordkeeping maintenance. The licensee shall maintain the records of dose to an embryo/fetus with the records of dose to the declared pregnant woman. The declaration of pregnancy, including the estimated date of conception, shall also be kept on file but may be maintained separately from the dose records.(e) Recordkeeping retention. The licensee shall retain each required form or record until the commission terminates each pertinent license requiring the form or record. This includes records required under the standards for protection against radiation in effect before January 1, 1994.</content><note type="source"><p>Source Note: The provisions of this §336.346 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective August 30, 2001, 26 TexReg 6309.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.347"><num value="336.347">§336.347</num><heading>Records of Dose to Individual Members of the Public</heading><content>(a) Each licensee shall maintain records sufficient to demonstrate compliance with the dose limit for individual members of the public. See §336.313 of this title (relating to Dose Limits for Individual Members of the Public).(b) The licensee shall retain the records required by subsection (a) of this section until the commission terminates each pertinent license requiring the record.</content><note type="source"><p>Source Note: The provisions of this §336.347 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.350"><num value="336.350">§336.350</num><heading>Reports of Stolen, Lost, or Missing Licensed Radioactive Material</heading><content>(a) Telephone reports. Each licensee shall report to the executive director or staff by telephone as follows: (1) immediately after its occurrence becomes known to the licensee, any stolen, lost, or missing licensed radioactive material in an aggregate quantity equal to or greater than 1,000 times the quantity specified in §336.360, Appendix C, of this title (relating to Quantities of Licensed Material Requiring Labeling) under those circumstances that it appears to the licensee that an exposure could result to individuals in unrestricted areas; or (b) Written reports. Each licensee required to make a report under subsection (a) of this section shall, within 30 days after making the telephone report, make a written report to the executive director setting forth the following information: (1) a description of the licensed radioactive material involved, including the kind, quantity, and chemical and physical form; (2) a description of the circumstances under which the loss or theft occurred; (3) a statement of disposition, or probable disposition, of the licensed material involved; (4) exposures of individuals to radiation, circumstances under which the exposures occurred, and the possible total effective dose equivalent to persons in unrestricted areas; (5) actions that have been taken, or will be taken, to recover the licensed material; and (6) procedures or measures that have been, or will be, adopted to ensure against a recurrence of the loss or theft of licensed material.(c) Supplemental reports. Subsequent to filing the written report, the licensee shall also report any additional substantive information on the loss or theft within 30 days after the licensee learns of this information.(d) Exposure reports. The licensee shall prepare any report filed with the executive director under this section so that names of individuals who may have received exposure to radiation or radioactive material are stated in a separate and detachable part of the report.</content><note type="source"><p>Source Note: The provisions of this §336.350 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.351"><num value="336.351">§336.351</num><heading>Reports of Transactions Involving Nationally Tracked Sources</heading><content>(a) Each licensee who manufactures, transfers, receives, disassembles, or disposes of a nationally tracked source shall complete and submit to the United States Nuclear Regulatory Commission (NRC) a National Source Tracking Transaction Report as specified in paragraphs (1) - (6) of this subsection for each type of transaction.(1) Each licensee who manufactures a nationally tracked source shall complete and submit to NRC a National Source Tracking Transaction Report. The report must include the following information:(A) the name, address, and license number of the reporting licensee;(B) the name of the individual preparing the report;(C) the manufacturer, model, and serial number of the source;(D) the radioactive material in the source;(E) the initial source strength in becquerels (curies) at the time of manufacture; and(F) the manufacture date of the source.(2) Each licensee that transfers a nationally tracked source to another person shall complete and submit to NRC a National Source Tracking Transaction Report. The report shall include the following information:(A) the name, address, and license number of the reporting licensee;(B) the name of the individual preparing the report;(C) the name and license number of the recipient facility and the shipping address;(D) the manufacturer, model, and serial number of the source or, if not available, other information to uniquely identify the source;(E) the radioactive material in the source;(F) the initial or current source strength in becquerels (curies);(G) the date for which the source strength is reported;(H) the shipping date;(I) the estimated arrival date; and(J) for nationally tracked sources transferred as waste under a Uniform Low-Level Radioactive Waste Manifest, the waste manifest number and the container identification of the container with the nationally tracked source.(3) Each licensee that receives a nationally tracked source shall complete and submit to NRC a National Source Tracking Transaction Report. The report shall include the following information:(A) the name, address, and license number of the reporting licensee;(B) the name of the individual preparing the report;(C) the name, address, and license number of the person that provided the source;(D) the manufacturer, model, and serial number of the source or, if not available, other information to uniquely identify the source;(E) the radioactive material in the source;(F) the initial or current source strength in becquerels (curies);(G) the date for which the source strength is reported;(H) the date of receipt; and(I) for material received under a Uniform Low-Level Radioactive Waste Manifest, the waste manifest number and the container identification with the nationally tracked source.(4) Each licensee that disassembles a nationally tracked source shall complete and submit to NRC a National Source Tracking Transaction Report. The report shall include the following information:(A) the name, address, and license number of the reporting licensee;(B) the name of the individual preparing the report;(C) the manufacturer, model, and serial number of the source or, if not available, other information to uniquely identify the source;(D) the radioactive material in the source;(E) the initial or current source strength in becquerels (curies);(F) the date for which the source strength is reported; and(G) the disassemble date of the source.(5) Each licensee who disposes of a nationally tracked source shall complete and submit to NRC a National Source Tracking Transaction Report. The report shall include the following information:(A) the name, address, and license number of the reporting licensee;(B) the name of the individual preparing the report;(C) the waste manifest number;(D) the container identification with the nationally tracked source;(E) the date of disposal; and(F) the method of disposal.(6) The reports discussed in paragraphs (1) - (6) of this subsection shall be submitted to NRC by the close of the next business day after the transaction. A single report may be submitted for multiple sources and transactions. The reports shall be submitted to the National Source Tracking System by using the following:(A) the on-line National Source Tracking System;(B) electronically using a computer-readable format;(C) by facsimile;(D) by mail to the address on the National Source Tracking Transaction Report Form (NRC Form 748); or(E) by telephone with follow-up by facsimile or mail.(7) Each licensee shall correct any error in previously filed reports or file a new report for any missed transaction within five business days of the discovery of the error or missed transaction. Such errors may be detected by a variety of methods such as administrative reviews or by physical inventories required by regulation. In addition, each licensee shall reconcile the inventory of nationally tracked sources possessed by the licensee against that licensee's data in the National Source Tracking System. The reconciliation shall be conducted during the month of January in each year. The reconciliation process shall include resolving any discrepancies between the National Source Tracking System and the actual inventory by filing the reports identified by paragraphs (1) - (6) of this subsection. By January 31 of each year, each licensee shall submit to the National Source Tracking System confirmation that the data in the National Source Tracking System is correct.(b) Nationally tracked source thresholds. The Terabecquerel (TBq) values are the regulatory standards. The curie values specified are obtained by converting from the TBq value. The curie values are provided for practical usefulness only and are rounded after conversion. The following table contains nationally tracked source thresholds.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.351 adopted to be effective February 2, 2012, 37 TexReg 335; amended to be effective December 11, 2024, 49 TexReg 10003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.352"><num value="336.352">§336.352</num><heading>Reports of Exposures, Radiation Levels, and Concentrations of Radioactive Material Exceeding the Limits</heading><content>(a) Reportable events. In addition to the notification required by §336.335 of this title (relating to Reporting Requirements for Incidents), each licensee shall submit a written report to the executive director within 30 days after learning of any of the following occurrences:(1) any incident for which notification is required by §336.335 of this title; or(2) doses in excess of any of the following:(A) the occupational dose limits for adults in §336.305 of this title (relating to Occupational Dose Limits for Adults);(B) the occupational dose limits for minors in §336.311 of this title (relating to Occupational Dose Limits for Minors);(C) the limits for an embryo/fetus of a declared pregnant woman in §336.312 of this title (relating to Dose to an Embryo/Fetus);(D) the limits for an individual member of the public in §336.313 of this title (relating to Dose Limits for Individual Members of the Public); or(E) any applicable limit in the license; or(F) the ALARA constraints for air emissions established under §336.304(d); or(3) levels of radiation or concentrations of radioactive material in:(A) a restricted area in excess of applicable limits in the license; or(B) an unrestricted area in excess of 10 times any applicable limit set forth in this subchapter or in the license, whether or not involving exposure of any individual in excess of the limits in §336.313 of this title; or(4) for licensees subject to the provisions of the United States Environmental Protection Agency's generally applicable environmental radiation standards in 40 CFR Part 190 as amended through January 13, 1977 (42 FedReg 2860) (Environmental Radiation Protection Standards for Nuclear Power Operations), levels of radiation or releases of radioactive material in excess of those standards or of license conditions related to those standards.(b) Contents of reports.(1) Each report required by subsection (a) of this section shall describe the extent of exposure of individuals to radiation and radioactive material, including, as appropriate:(A) estimates of each individual's dose;(B) the levels of radiation and concentrations of radioactive material involved;(C) the cause of the elevated exposures, dose rates, or concentrations; and(D) corrective steps taken or planned to ensure against a recurrence, including the schedule for achieving conformance with applicable limits, ALARA constraints, generally applicable environmental standards, and associated license conditions.(2) Each report filed under subsection (a) of this section shall include for each occupationally overexposed individual: the name, social security number, and date of birth. With respect to the limit for the embryo/fetus in §336.312 of this title, the identifiers should be those of the declared pregnant woman. The report shall be prepared so that this information is stated in a separate and detachable part of the report.</content><note type="source"><p>Source Note: The provisions of this §336.352 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 3, 1998, 23 TexReg 8837; amended to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.353"><num value="336.353">§336.353</num><heading>Reports of Planned Special Exposures</heading><content>The licensee shall submit a written report to the executive director within 30 days following any planned special exposure conducted in accordance with §336.310 of this title (relating to Planned Special Exposures), informing the executive director that a planned special exposure was conducted and indicating the date the planned special exposure occurred and the information required by §336.345 of this title (relating to Records of Planned Special Exposures).</content><note type="source"><p>Source Note: The provisions of this §336.353 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.354"><num value="336.354">§336.354</num><heading>Reports to Individuals</heading><content>(a) Reports to individuals of exceeding dose limits. When a licensee is required, under the provisions of §336.352 of this title (relating to Reports of Exposures, Radiation Levels, and Concentrations of Radioactive Material Exceeding the Limits), §336.353 of this title (relating to Reports of Planned Special Exposures), or §336.355 of this title (relating to Reports of Individual Monitoring), to report to the executive director any exposure of an identified occupationally-exposed individual, or an identified member of the public, to radiation or radioactive material, the licensee shall also provide a copy of the report submitted to the executive director to the individual. This report must be transmitted at a time not later than the transmittal to the executive director.(b) Notifications and reports to individuals. In addition to the reports to individuals under subsection (a) of this section, each licensee shall provide notification and reports to individuals of exposure to radiation or radioactive material as specified in §336.405 of this title (relating to Notifications and Reports to Individuals).</content><note type="source"><p>Source Note: The provisions of this §336.354 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.355"><num value="336.355">§336.355</num><heading>Reports of Individual Monitoring</heading><content>(a) Each person licensed by the commission to receive low-level radioactive waste from other persons for disposal under Subchapter H of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste) shall submit an annual report of the results of individual monitoring carried out by the licensee for each individual for whom monitoring was required by §336.316 of this title (relating to Conditions Requiring Individual Monitoring of External and Internal Occupational Dose) during that year. The licensee may include additional data for individuals for whom monitoring was provided but not required. The licensee may use the form "Occupational Exposure Record for a Monitoring Period" (see §336.368 of this title (relating to Appendix K. Occupational Exposure Record for a Monitoring Period)) or a clear and legible record containing all the information required by that form.(b) The licensee shall submit the report required by subsection (a) of this section, covering the preceding year, to the executive director on or before April 30 of each year.</content><note type="source"><p>Source Note: The provisions of this §336.355 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.356"><num value="336.356">§336.356</num><heading>Soil and Vegetation Contamination Limits</heading><content>(a) No licensee may possess, receive, use, or transfer licensed radioactive material in such a manner as to cause contamination of soil or vegetation in unrestricted areas that causes a member of the public to receive a total effective dose equivalent in excess of 25 millirem (mrem)/year from all pathways (excluding radium and its decay products) and to the extent that the contamination exceeds the background level by more than:(1) for radium-226 or radium-228 in soil, the following limits, based on dry weight, averaged over any 100 square meters of area:(A) 5 picocuries/gram (pCi/g), averaged over the first 15 centimeters of soil below the surface;(B) 15 pCi/g, averaged over each 15-centimeter thick layer of soil below the first 15 centimeters below the surface; and(2) for radium-226 or radium-228 in vegetation, 5 pCi/g, based on dry weight.(b) Regardless of the limits set forth in subsection (a) of this section, each licensee shall make every reasonable effort to maintain any contamination of soil or vegetation as low as is reasonably achievable.(c) Licensees shall, to the extent practical, conduct operations to minimize the introduction of residual radioactivity into the site, including the subsurface in accordance with the existing radiation protection requirements in §336.304 of this title (relating to Radiation Protection Programs) and radiological criteria for license termination in Subchapter G of this chapter (relating to Decommissioning Standards). If contamination caused by the licensee is detected in an unrestricted area, the licensee shall decontaminate any unrestricted area which is contaminated above the limits specified in subsection (a) of this section.</content><note type="source"><p>Source Note: The provisions of this §336.356 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 3, 1998, 23 TexReg 8837; amended to be effective November 8, 2018, 43 TexReg 7357.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.357"><num value="336.357">§336.357</num><heading>Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material</heading><content>(a) Specific exemption. A licensee that possesses radioactive waste that contains category 1 or category 2 quantities of radioactive material is exempt from the requirements of subsections (b) - (w) of this section. However, any radioactive waste that contains discrete sources, ion-exchange resins, or activated material that weighs less than 2,000 kilograms (4,409 pounds) is not exempt from the requirements of subsections (b) - (w) of this section. The licensee shall implement the following requirements to secure the radioactive waste:(1) use continuous physical barriers that allow access to the radioactive waste only through established access control points;(2) use a locked door or gate with monitored alarm at the access control point;(3) assess and respond to each actual or attempted unauthorized access to determine whether an actual or attempted theft, sabotage, or diversion occurred; and(4) immediately notify the local law enforcement agency (LLEA) and request an armed response from the LLEA upon determination that there was an actual or attempted theft, sabotage, or diversion of the radioactive waste that contains category 1 or category 2 quantities of radioactive material.(b) Personnel access authorization requirements for category 1 or category 2 quantities of radioactive material.(1) General.(A) Each licensee that possesses an aggregated quantity of radioactive material at or above the category 2 threshold shall establish, implement, and maintain its access authorization program in accordance with the requirements of this subsection and subsections (c) - (h) of this section.(B) An applicant for a new license and each licensee, upon application for modification of its license, that would become newly subject to the requirements of this subsection and subsections (c) - (h) of this section, shall implement the requirements of this subsection and subsections (c) - (h) of this section, as appropriate, before taking possession of an aggregated category 1 or category 2 quantity of radioactive material.(C) Any licensee that has not previously implemented the Security Orders or been subject to the provisions of this subsection and subsections (c) - (h) of this section shall implement the provisions of this subsection and subsections (c) - (h) of this section before aggregating radioactive material to a quantity that equals or exceeds the category 2 threshold.(2) General performance objective. The licensee's access authorization program must ensure that the individuals specified in paragraph (3)(A) of this subsection are trustworthy and reliable.(3) Applicability.(A) Licensees shall subject the following individuals to an access authorization program:(i) any individual whose assigned duties require unescorted access to category 1 or category 2 quantities of radioactive material or to any device that contains the radioactive material; and(ii) reviewing officials.(B) Licensees need not subject the categories of individuals listed in subsection (f)(1) of this section to the investigation elements of the access authorization program.(C) Licensees shall approve for unescorted access to category 1 or category 2 quantities of radioactive material only those individuals with job duties that require unescorted access to category 1 or category 2 quantities of radioactive material.(D) Licensees may include individuals needing access to safeguards information-modified handling under 10 Code of Federal Regulations (CFR) Part 73, in the access authorization program under this subsection and subsections (c) - (h) of this section.(c) Access authorization program requirements.(1) Granting unescorted access authorization.(A) Licensees shall implement the requirements of subsection (b) of this section, this subsection, and subsections (d) - (h) of this section for granting initial or reinstated unescorted access authorization.(B) Individuals determined to be trustworthy and reliable shall also complete the security training required by subsection (j)(3) of this section before being allowed unescorted access to category 1 or category 2 quantities of radioactive material.(2) Reviewing officials.(A) Reviewing officials are the only individuals who may make trustworthiness and reliability determinations that allow individuals to have unescorted access to category 1 or category 2 quantities of radioactive materials possessed by the licensee.(B) Each licensee shall name one or more individuals to be reviewing officials. After completing the background investigation on the reviewing official, the licensee shall provide under oath or affirmation, a certification that the reviewing official is deemed trustworthy and reliable by the licensee. The licensee shall provide a copy of the oath or affirmation certifications of any and all individuals to the executive director once completed. The fingerprints of the named reviewing official must be taken by a law enforcement agency, Federal or State agencies that provide fingerprinting services to the public, or commercial fingerprinting services authorized by a State to take fingerprints. The licensee shall recertify that the reviewing official is deemed trustworthy and reliable every 10 years in accordance with subsection (d)(3) of this section.(C) Reviewing officials must be permitted to have unescorted access to category 1 or category 2 quantities of radioactive materials or access to safeguards information or safeguards information-modified handling, if the licensee possesses safeguards information or safeguards information-modified handling.(D) Reviewing officials cannot approve other individuals to act as reviewing officials.(E) A reviewing official does not need to undergo a new background investigation before being named by the licensee as the reviewing official if:(i) the individual has undergone a background investigation that included fingerprinting and a Federal Bureau of Investigations (FBI) criminal history records check and has been determined to be trustworthy and reliable by the licensee; or(ii) the individual is subject to a category listed in subsection (f)(1) of this section.(3) Informed consent.(A) Licensees may not initiate a background investigation without the informed and signed consent of the subject individual. This consent must include authorization to share personal information with other individuals or organizations as necessary to complete the background investigation. Before a final adverse determination, the licensee shall provide the individual with an opportunity to correct any inaccurate or incomplete information that is found during the background investigation. Licensees do not need to obtain signed consent from those individuals that meet the requirements of subsection (d)(2) of this section. A signed consent must be obtained prior to any reinvestigation. (B) The subject individual may withdraw his or her consent at any time. Licensees shall inform the individual that:(i) if an individual withdraws his or her consent, the licensee may not initiate any elements of the background investigation that were not in progress at the time the individual withdrew his or her consent; and(ii) the withdrawal of consent for the background investigation is sufficient cause for denial or termination of unescorted access authorization.(4) Personal history disclosure. Any individual who is applying for unescorted access authorization shall disclose the personal history information that is required by the licensee's access authorization program for the reviewing official to make a determination of the individual's trustworthiness and reliability. Refusal to provide, or the falsification of, any personal history information required by subsection (b) of this section, this subsection, and subsections (d) - (h) of this section is sufficient cause for denial or termination of unescorted access.(5) Determination basis.(A) The reviewing official shall determine whether to permit, deny, unfavorably terminate, maintain, or administratively withdraw an individual's unescorted access authorization based on an evaluation of all of the information collected to meet the requirements of subsection (b) of this section, this subsection, and subsections (d) - (h) of this section.(B) The reviewing official may not permit any individual to have unescorted access until the reviewing official has evaluated all of the information collected to meet the requirements of subsection (b) of this section, this subsection, and subsections (d) - (h) of this section and determined that the individual is trustworthy and reliable. The reviewing official may deny unescorted access to any individual based on information obtained at any time during the background investigation.(C) The licensee shall document the basis for concluding whether or not there is reasonable assurance that an individual is trustworthy and reliable.(D) The reviewing official may terminate or administratively withdraw an individual's unescorted access authorization based on information obtained after the background investigation has been completed and the individual granted unescorted access authorization.(E) Licensees shall maintain a list of persons currently approved for unescorted access authorization. When a licensee determines that a person no longer requires unescorted access or meets the access authorization requirements, the licensee shall remove the person from the approved list as soon as possible, but no later than seven working days, and take prompt measures to ensure that the individual is unable to have unescorted access to the material.(6) Procedures. Licensees shall develop, implement, and maintain written procedures for implementing the access authorization program. The procedures must include provisions for the notification of individuals who are denied unescorted access. The procedures must include provisions for the review, at the request of the affected individual, of a denial or termination of unescorted access authorization. The procedures must contain a provision to ensure that the individual is informed of the grounds for the denial or termination of unescorted access authorization and allow the individual an opportunity to provide additional relevant information.(7) Right to correct and complete information.(A) Prior to any final adverse determination, licensees shall provide each individual subject to subsection (b) of this section, this subsection, and subsections (d) - (h) of this section with the right to complete, correct, and explain information obtained as a result of the licensee's background investigation. Confirmation of receipt by the individual of this notification must be maintained by the licensee for a period of one year from the date of the notification. (B) If, after reviewing his or her criminal history record, an individual believes that it is incorrect or incomplete in any respect and wishes to change, correct, update, or explain anything in the record, the individual may initiate challenge procedures. These procedures include direct application by the individual challenging the record to the law enforcement agency that contributed the questioned information or a direct challenge as to the accuracy or completeness of any entry on the criminal history record to the Federal Bureau of Investigation, Criminal Justice Information Services (CJIS) Division, ATTN: SCU, Mod. D-2, 1000 Custer Hollow Road, Clarksburg, WV 26306, as set forth in 28 CFR §§16.30 - 16.34. In the latter case, the FBI will forward the challenge to the agency that submitted the data, and will request that the agency verify or correct the challenged entry. Upon receipt of an official communication directly from the agency that contributed the original information, the FBI Identification Division will make any changes necessary in accordance with the information supplied by that agency. Licensees must provide at least 10 days for an individual to initiate action to challenge the results of an FBI criminal history records check after the record is made available for his or her review. The licensee may make a final adverse determination based upon the criminal history records only after receipt of the FBI's confirmation or correction of the record.(8) Records.(A) The licensee shall retain documentation regarding the trustworthiness and reliability of individual employees for three years from the date the individual no longer requires unescorted access to category 1 or category 2 quantities of radioactive material.(B) The licensee shall retain a copy of the current access authorization program procedures as a record for three years after the procedure is no longer needed. If any portion of the procedure is superseded, the licensee shall retain the superseded material for three years after the record is superseded.(C) The licensee shall retain the list of persons approved for unescorted access authorization for three years after the list is superseded or replaced.(d) Background investigations.(1) Initial investigation. Before allowing an individual unescorted access to category 1 or category 2 quantities of radioactive material or to the devices that contain the material, licensees shall complete a background investigation of the individual seeking unescorted access authorization. The scope of the investigation must encompass at least the seven years preceding the date of the background investigation or since the individual's eighteenth birthday, whichever is shorter. The background investigation must include at a minimum:(A) fingerprintings and an FBI identification and criminal history records check in accordance with subsection (e) of this section;(B) verification of true identity. Licensees shall verify the true identity of the individual applying for unescorted access authorization to ensure that the applicant is who he or she claims to be. A licensee shall review official identification documents (e.g., driver's license; passport; government identification; certificate of birth issued by the state, province, or country of birth) and compare the documents to personal information data provided by the individual to identify any discrepancy in the information. Licensees shall document the type, expiration, and identification number of the identification document, or maintain a photocopy of identifying documents on file in accordance with subsection (g) of this section. Licensees shall certify in writing that the identification was properly reviewed and shall maintain the certification and all related documents for review upon inspection;(C) employment history verification. Licensees shall complete an employment history verification, including military history. Licensees shall verify the individual's employment with each previous employer for the most recent seven years before the date of application;(D) verification of education. Licensees shall verify the individual's education during the claimed period;(E) character and reputation determination. Licensees shall complete reference checks to determine the character and reputation of the individual who has applied for unescorted access authorization. Unless other references are not available, reference checks may not be conducted with any person who is known to be a close member of the individual's family, including but not limited to the individual's spouse, parents, siblings, or children, or any individual who resides in the individual's permanent household. Reference checks under subsections (b) and (c) of this section, this subsection, and subsections (e) - (h) of this section must be limited to whether the individual has been and continues to be trustworthy and reliable;(F) the licensee shall also, to the extent possible, obtain independent information to corroborate the information provided by the individual (e.g., seek references not supplied by the individual); and(G) if a previous employer, educational institution, or any other entity with which the individual claims to have been engaged fails to provide information or indicates an inability or unwillingness to provide information within a time frame deemed appropriate by the licensee, but at least after 10 business days of the request or if the licensee is unable to reach the entity, the licensee shall document the refusal, unwillingness, or inability in the record of investigation and attempt to obtain the information from an alternate source.(2) Grandfathering.(A) Individuals who have been determined to be trustworthy and reliable for unescorted access to category 1 or category 2 quantities of radioactive material under the Fingerprint Orders may continue to have unescorted access to category 1 and category 2 quantities of radioactive material without further investigation. These individuals shall be subject to the reinvestigation requirement.(B) Individuals who have been determined to be trustworthy and reliable under the provisions of 10 CFR Part 73 or the Security Orders for access to safeguards information, safeguards information-modified handling, or risk-significant material may have unescorted access to category 1 and category 2 quantities of radioactive material without further investigation. The licensee shall document that the individual was determined to be trustworthy and reliable under the provisions of 10 CFR Part 73 or a Security Order. Security Order, in this context, refers to any order that was issued by the United States Nuclear Regulatory Commission (NRC) that required fingerprints and an FBI criminal history records check for access to safeguards information, safeguards information-modified handling, or risk significant material such as special nuclear material or large quantities of uranium hexafluoride. These individuals shall be subject to the reinvestigation requirement.(3) Reinvestigations. Licensees shall conduct a reinvestigation every 10 years for any individual with unescorted access to category 1 or category 2 quantities of radioactive material. The reinvestigation shall consist of fingerprinting and an FBI identification and criminal history records check in accordance with subsection (e) of this section. The reinvestigations must be completed within 10 years of the date on which these elements were last completed.(e) Requirements for criminal history records checks of individuals granted unescorted access to category 1 or category 2 quantities of radioactive material.(1) General performance objective and requirements.(A) Except for those individuals listed in subsection (f) of this section and those individuals grandfathered under subsection (d)(2) of this section, each licensee subject to the provisions of subsections (b) - (d) of this section, this subsection, and subsections (f) - (h) of this section shall fingerprint each individual who is to be permitted unescorted access to category 1 or category 2 quantities of radioactive material. Licensees shall transmit all collected fingerprints to the NRC for transmission to the FBI. The licensee shall use the information received from the FBI as part of the required background investigation to determine whether to grant or deny further unescorted access to category 1 or category 2 quantities of radioactive materials for that individual.(B) The licensee shall notify each affected individual that his or her fingerprints will be used to secure a review of his or her criminal history record and shall inform him or her of the procedures for revising the record or adding explanations to the record.(C) Fingerprinting is not required if a licensee is reinstating an individual's unescorted access authorization to category 1 or category 2 quantities of radioactive materials if:(i) the individual returns to the same facility that granted unescorted access authorization within 365 days of the termination of his or her unescorted access authorization; and(ii) the previous access was terminated under favorable conditions.(D) Fingerprints do not need to be taken if an individual who is an employee of a licensee, contractor, manufacturer, or supplier has been granted unescorted access to category 1 or category 2 quantities of radioactive material, access to safeguards information, or safeguards information-modified handling by another licensee, based upon a background investigation conducted under this section, the Fingerprint Orders, or 10 CFR Part 73. An existing criminal history records check file may be transferred to the licensee asked to grant unescorted access in accordance with the provisions of subsection (g)(3) of this section.(E) Licensees shall use the information obtained as part of a criminal history records check solely for the purpose of determining an individual's suitability for unescorted access authorization to category 1 or category 2 quantities of radioactive materials, access to safeguards information, or safeguards information-modified handling.(2) Prohibitions.(A) Licensees may not base a final determination to deny an individual unescorted access authorization to category 1 or category 2 quantities of radioactive material solely on the basis of information received from the FBI involving:(i) an arrest more than one year old for which there is no information of the disposition of the case; or(ii) an arrest that resulted in dismissal of the charge or an acquittal.(B) Licensees may not use information received from a criminal history records check obtained under subsections (b) - (d) of this section, this subsection, and subsections (f) - (h) of this section in a manner that would infringe upon the rights of any individual under the First Amendment to the Constitution of the United States nor shall licensees use the information in any way that would discriminate among individuals on the basis of race, religion, national origin, gender, or age.(3) Procedures for processing of fingerprint checks.(A) For the purpose of complying with subsections (b) - (d) of this section, this subsection, and subsections (f) - (h) of this section, licensees shall use an appropriate method listed in 10 CFR §37.7 to submit to the United States Nuclear Regulatory Commission, Director, Division of Physical and Cyber Security Policy, 11545 Rockville Pike, ATTN: Criminal History Program/Mail Stop T-07D04M, Rockville, Maryland 20852, one completed, legible standard fingerprint card (Form FD-258, ORIMDNRCOOOZ), electronic fingerprint scan or, where practicable, other fingerprint record for each individual requiring unescorted access to category 1 or category 2 quantities of radioactive material. Copies of these forms may be obtained by emailing MAILSVS.Resource@nrc.gov. Guidance on submitting electronic fingerprints can be found at https://www.nrc.gov/security/chp.html .(B) Fees for the processing of fingerprint checks are due upon application. Licensees shall submit payment with the application for the processing of fingerprints through corporate check, certified check, cashier's check, money order, or electronic payment, made payable to "U.S. NRC." (For guidance on making electronic payments, contact the Division of Physical and Cyber Security Policy by e-mailing Crimhist.Resource@nrc.gov. ) Combined payment for multiple applications is acceptable. The NRC publishes the amount of the fingerprint check application fee on the NRC's public website. (To find the current fee amount, go to the Licensee Criminal History Records Checks & Firearms Background Check information page at https://www.nrc.gov/security/chp.html and see the link for How do I determine how much to pay for the request?).(C) The NRC will forward to the submitting licensee all data received from the FBI as a result of the licensee's application(s) for criminal history records checks.(f) Relief from fingerprinting, identification, and criminal history records checks and other elements of background investigations for designated categories of individuals permitted unescorted access to certain radioactive materials.(1) Fingerprinting, and the identification and criminal history records checks required by §149 of the Atomic Energy Act of 1954, as amended, and other elements of the background investigation, are not required for the following individuals prior to granting unescorted access to category 1 or category 2 quantities of radioactive materials:(A) an employee of the NRC or of the Executive Branch of the United States (U.S.) Government who has undergone fingerprinting for a prior U.S. Government criminal history records check;(B) a Member of Congress;(C) an employee of a member of Congress or Congressional committee who has undergone fingerprinting for a prior U.S. Government criminal history records check;(D) the Governor of a State or his or her designated State employee representative;(E) Federal, State, or local law enforcement personnel;(F) State Radiation Control Program Directors and State Homeland Security Advisors or their designated State employee representatives; (G) Agreement State employees conducting security inspections on behalf of the NRC under an agreement executed under §274.i. of the Atomic Energy Act;(H) representatives of the International Atomic Energy Agency (IAEA) engaged in activities associated with the U.S./IAEA Safeguards Agreement who have been certified by the NRC;(I) emergency response personnel who are responding to an emergency;(J) commercial vehicle drivers for road shipments of category 1 and category 2 quantities of radioactive material;(K) package handlers at transportation facilities such as freight terminals and railroad yards;(L) any individual who has an active federal security clearance, provided that he or she makes available the appropriate documentation. Written confirmation from the agency/employer that granted the federal security clearance or reviewed the criminal history records check must be provided to the licensee. The licensee shall retain this documentation for a period of three years from the date the individual no longer requires unescorted access to category 1 or category 2 quantities of radioactive material; and(M) any individual employed by a service provider licensee for which the service provider licensee has conducted the background investigation for the individual and approved the individual for unescorted access to category 1 or category 2 quantities of radioactive material. Written verification from the service provider must be provided to the licensee. The licensee shall retain the documentation for a period of three years from the date the individual no longer requires unescorted access to category 1 or category 2 quantities of radioactive material; and(2) Fingerprinting, and the identification and criminal history records checks required by §149 of the Atomic Energy Act of 1954, as amended, are not required for an individual who has had a favorably adjudicated U.S. Government criminal history records check within the last five years, under a comparable U.S. Government program involving fingerprinting and an FBI identification and criminal history records check provided that he or she makes available the appropriate documentation. Written confirmation from the agency/employer that reviewed the criminal history records check must be provided to the licensee. The licensee shall retain this documentation for a period of three years from the date the individual no longer requires unescorted access to category 1 or category 2 quantities of radioactive material. These programs include, but are not limited to:(A) National Agency Check;(B) Transportation Worker Identification Credentials under 49 CFR Part 1572;(C) Bureau of Alcohol, Tobacco, Firearms, and Explosives background check and clearances under 27 CFR Part 555;(D) Health and Human Services security risk assessments for possession and use of select agents and toxins under 42 CFR Part 73;(E) Hazardous Material security threat assessment for hazardous material endorsement to commercial drivers license under 49 CFR Part 1572; and(F) Customs and Border Protection's Free and Secure Trade Program.(g) Protection of information.(1) Each licensee who obtains background information on an individual under subsections (b) - (f) of this section, this subsection, and subsection (h) of this section shall establish and maintain a system of files and written procedures for protection of the records and the personal information from unauthorized disclosure.(2) The licensee may not disclose the record or personal information collected and maintained to persons other than the subject individual, his or her representative, or to those who have a need to have access to the information in performing assigned duties in the process of granting or denying unescorted access to category 1 or category 2 quantities of radioactive material, safeguards information, or safeguards information-modified handling. No individual authorized to have access to the information may disseminate the information to any other individual who does not have a need to know.(3) The personal information obtained on an individual from a background investigation may be provided to another licensee:(A) upon the individual's written request to the licensee holding the data to disseminate the information contained in his or her file; and(B) the recipient licensee verifies information such as name, date of birth, social security number, gender, and other applicable physical characteristics.(4) The licensee shall make background investigation records obtained under subsections (b) - (f) of this section, this subsection, and subsection (h) of this section available for examination by an authorized representative of the commission to determine compliance with the regulations and laws.(5) The licensee shall retain all fingerprint and criminal history records (including data indicating no record) received from the FBI or a copy of these records if the individual's file has been transferred on an individual for three years from the date the individual no longer requires unescorted access to category 1 or category 2 quantities of radioactive material.(h) Access authorization program review.(1) Each licensee shall be responsible for the continuing effectiveness of the access authorization program. Each licensee shall ensure that access authorization programs are reviewed to confirm compliance with the requirements of subsections (b) - (g) of this section and this subsection and that comprehensive actions are taken to correct any noncompliance identified. The review program shall evaluate all program performance objectives and requirements. Each licensee shall periodically (at least annually) review the access authorization program content and implementation.(2) The results of the reviews, along with any recommendations, must be documented. Each review report must identify conditions that are adverse to the proper performance of the access authorization program, the cause of the condition(s), and, when appropriate, recommend corrective actions, and corrective actions taken. The licensee shall review the findings and take any additional corrective actions necessary to preclude repetition of the condition, including reassessment of the deficient areas where indicated.(3) Review records must be maintained for three years.(i) Security program.(1) Applicability.(A) Each licensee that possesses an aggregated category 1 or category 2 quantity of radioactive material shall establish, implement, and maintain a security program in accordance with the requirements of this subsection and subsections (j) - (q) of this section.(B) An applicant for a new license, and each licensee that would become newly subject to the requirements of this subsection and subsections (j) - (q) of this section upon application for modification of its license, shall implement the requirements of this subsection and subsections (j) - (q) of this section, as appropriate, before taking possession of an aggregated category 1 or category 2 quantity of radioactive material.(C) Any licensee that has not previously implemented the Security Orders or been subject to the provisions of this subsection and subsections (j) - (q) of this section shall provide written notification to the commission at least 90 days before aggregating radioactive material to a quantity that equals or exceeds the category 2 threshold.(2) General performance objective. Each licensee shall establish, implement, and maintain a security program that is designed to monitor and, without delay, detect, assess, and respond to an actual or attempted unauthorized access to category 1 or category 2 quantities of radioactive material.(3) Program features. Each licensee's security program must include the program features, as appropriate, described in subsections (j) - (p) of this section.(j) General security program requirements.(1) Security plan.(A) Each licensee identified in subsection (i)(1) of this section shall develop a written security plan specific to its facilities and operations. The purpose of the security plan is to establish the licensee's overall security strategy to ensure the integrated and effective functioning of the security program required by subsection (i) of this section, this subsection, and subsections (k) - (q) of this section. The security plan must, at a minimum:(i) describe the measures and strategies used to implement the requirements of subsection (i) of this section, this subsection, and subsections (k) - (q) of this section; and(ii) identify the security resources, equipment, and technology used to satisfy the requirements of subsection (i) of this section, this subsection, and subsections (k) - (q) of this section.(B) The security plan must be reviewed and approved by the individual with overall responsibility for the security program.(C) A licensee shall revise its security plan as necessary to ensure the effective implementation of the executive director's requirements. The licensee shall ensure that:(i) the revision has been reviewed and approved by the individual with overall responsibility for the security program; and(ii) the affected individuals are instructed on the revised plan before the changes are implemented.(D) The licensee shall retain a copy of the current security plan as a record for three years after the security plan is no longer required. If any portion of the plan is superseded, the licensee shall retain the superseded material for three years after the record is superseded.(2) Implementing procedures.(A) The licensee shall develop and maintain written procedures that document how the requirements of subsection (i) of this section, this subsection, and subsections (k) - (q) of this section and the security plan will be met.(B) The implementing procedures and revisions to these procedures must be approved in writing by the individual with overall responsibility for the security program.(C) The licensee shall retain a copy of the current procedure as a record for three years after the procedure is no longer needed. Superseded portions of the procedure must be retained for three years after the record is superseded.(3) Training.(A) Each licensee shall conduct training to ensure that those individuals implementing the security program possess and maintain the knowledge, skills, and abilities to carry out their assigned duties and responsibilities effectively. The training must include instruction in:(i) the licensee's security program and procedures to secure category 1 or category 2 quantities of radioactive material and the purposes and functions of the security measures employed;(ii) the responsibility to report promptly to the licensee any condition that causes or may cause a violation of the requirements of the commission, the NRC, or any Agreement State;(iii) the responsibility of the licensee to report promptly to the LLEA and licensee any actual or attempted theft, sabotage, or diversion of category 1 or category 2 quantities of radioactive material; and(iv) the appropriate response to security alarms.(B) In determining those individuals who shall be trained on the security program, the licensee shall consider each individual's assigned activities during authorized use and response to potential situations involving actual or attempted theft, diversion, or sabotage of category 1 or category 2 quantities of radioactive material. The extent of the training must be commensurate with the individual's potential involvement in the security of category 1 or category 2 quantities of radioactive material.(C) Refresher training must be provided at a frequency not to exceed 12 months and when significant changes have been made to the security program. This training must include:(i) review of the training requirements of this paragraph and any changes made to the security program since the last training;(ii) reports on any relevant security issues, problems, and lessons learned;(iii) relevant results of commission inspections; and(iv) relevant results of the licensee's program review and testing and maintenance.(D) The licensee shall maintain records of the initial and refresher training for three years from the date of the training. The training records must include dates of the training, topics covered, a list of licensee personnel in attendance, and related information.(4) Protection of information.(A) Licensees authorized to possess category 1 or category 2 quantities of radioactive material shall limit access to and unauthorized disclosure of their security plan, implementing procedures, and the list of individuals that have been approved for unescorted access.(B) Efforts to limit access shall include the development, implementation, and maintenance of written policies and procedures for controlling access to, and for proper handling and protection against unauthorized disclosure of, the security plan, implementing procedures, and the list of individuals that have been approved for unescorted access.(C) Before granting an individual access to the security plan, implementing procedures, or the list of individuals that have been approved for unescorted access, licensees shall:(i) evaluate an individual's need to know the security plan, implementing procedures, or the list of individuals that have been approved for unescorted access; and(ii) if the individual has not been authorized for unescorted access to category 1 or category 2 quantities of radioactive material, safeguards information, or safeguards information-modified handling, the licensee must complete a background investigation to determine the individual's trustworthiness and reliability. A trustworthiness and reliability determination shall be conducted by the reviewing official and shall include the background investigation elements contained in subsection (d)(1)(B) - (G) of this section.(D) Licensees need not subject the following individuals to the background investigation elements for protection of information:(i) the categories of individuals listed in subsection (f)(1) of this section; or(ii) security service provider employees, provided written verification that the employee has been determined to be trustworthy and reliable, by the required background investigation in subsection (d)(1)(B) - (G) of this section, has been provided by the security service provider.(E) The licensee shall document the basis for concluding that an individual is trustworthy and reliable and should be granted access to the security plan, implementing procedures, or the list of individuals that have been approved for unescorted access.(F) Licensees shall maintain a list of persons currently approved for access to the security plan, implementing procedures, or the list of individuals that have been approved for unescorted access. When a licensee determines that a person no longer needs access to the security plan, implementing procedures, or the list of individuals that have been approved for unescorted access or no longer meets the access authorization requirements for access to the information, the licensee shall remove the person from the approved list as soon as possible, but no later than seven working days, and take prompt measures to ensure that the individual is unable to obtain the security plan, implementing procedures, or the list of individuals that have been approved for unescorted access.(G) When not in use, the licensee shall store its security plan, implementing procedures, and the list of individuals that have been approved for unescorted access in a manner to prevent unauthorized access. Information stored in non-removable electronic form must be password protected.(H) The licensee shall retain as a record for three years after the document is no longer needed:(i) a copy of the information protection procedures; and(ii) the list of individuals approved for access to the security plan, implementing procedures, or the list of individuals that have been approved for unescorted access.(k) LLEA coordination.(1) A licensee subject to subsections (i) and (j) of this section, this subsection, and subsections (l) - (q) of this section shall coordinate, to the extent practicable, with an LLEA for responding to threats to the licensee's facility, including any necessary armed response. The information provided to the LLEA must include:(A) a description of the facilities and the category 1 and category 2 quantities of radioactive materials along with a description of the licensee's security measures that have been implemented to comply with subsections (i) and (j) of this section, this subsection, and subsections (l) - (q) of this section; and(B) a notification that the licensee will request a timely armed response by the LLEA to any actual or attempted theft, sabotage, or diversion of category 1 or category 2 quantities of material. (2) The licensee shall notify the executive director within three business days if:(A) the LLEA has not responded to the request for coordination within 60 days of the coordination request; or(B) the LLEA notifies the licensee that the LLEA does not plan to participate in coordination activities.(3) The licensee shall document its efforts to coordinate with the LLEA. The documentation must be kept for three years.(4) The licensee shall coordinate with the LLEA at least every 12 months, or when changes to the facility design or operation adversely affect the potential vulnerability of the licensee's material to theft, sabotage, or diversion.(l) Security zones.(1) Licensees shall ensure that all aggregated category 1 and category 2 quantities of radioactive material are used or stored within licensee established security zones. Security zones may be permanent or temporary.(2) Temporary security zones must be established as necessary to meet the licensee's transitory or intermittent business activities, such as periods of maintenance, source delivery, and source replacement.(3) Security zones must, at a minimum, allow unescorted access only to approved individuals through:(A) isolation of category 1 and category 2 quantities of radioactive materials by the use of continuous physical barriers that allow access to the security zone only through established access control points. A physical barrier is a natural or man-made structure or formation sufficient for the isolation of the category 1 or category 2 quantities of radioactive material within a security zone; or(B) direct control of the security zone by approved individuals at all times; or(C) a combination of continuous physical barriers and direct control.(4) For category 1 quantities of radioactive material during periods of maintenance, source receipt, preparation for shipment, installation, or source removal or exchange, the licensee shall, at a minimum, provide sufficient individuals approved for unescorted access to maintain continuous surveillance of sources in temporary security zones and in any security zone in which physical barriers or intrusion detection systems have been disabled to allow such activities. (5) Individuals not approved for unescorted access to category 1 or category 2 quantities of radioactive material must be escorted by an approved individual when in a security zone.(m) Monitoring, detection, and assessment.(1) Monitoring and detection.(A) Licensees shall establish and maintain the capability to continuously monitor and detect without delay all unauthorized entries into its security zones. Licensees shall provide the means to maintain continuous monitoring and detection capability in the event of a loss of the primary power source or provide for an alarm and response in the event of a loss of the capability to continuously monitor and detect unauthorized entries.(B) Monitoring and detection must be performed by:(i) a monitored intrusion detection system that is linked to an onsite or offsite central monitoring facility;(ii) electronic devices for intrusion detection alarms that will alert nearby facility personnel;(iii) a monitored video surveillance system;(iv) direct visual surveillance by approved individuals located within the security zone; or(v) direct visual surveillance by a licensee designated individual located outside the security zone.(C) A licensee subject to subsections (i) - (l) of this section, this subsection, and subsections (n) - (q) of this section shall also have a means to detect unauthorized removal of the radioactive material from the security zone. This detection capability must provide:(i) for category 1 quantities of radioactive material, immediate detection of any attempted unauthorized removal of the radioactive material from the security zone. Such immediate detection capability must be provided by:(I) electronic sensors linked to an alarm;(II) continuous monitored video surveillance; or(III) direct visual surveillance.(ii) For category 2 quantities of radioactive material, weekly verification through physical checks, tamper indicating devices, use, or other means to ensure that the radioactive material is present.(2) Assessment. Licensees shall immediately assess each actual or attempted unauthorized entry into the security zone to determine whether the unauthorized access was an actual or attempted theft, sabotage, or diversion.(3) Personnel communications and data transmission. For personnel and automated or electronic systems supporting the licensee's monitoring, detection, and assessment systems, licensees shall:(A) maintain continuous capability for personnel communication and electronic data transmission and processing among site security systems; and(B) provide an alternative communication capability for personnel, and an alternative data transmission and processing capability, in the event of a loss of the primary means of communication or data transmission and processing. Alternative communications and data transmission systems may not be subject to the same failure modes as the primary systems.(4) Response. Licensees shall immediately respond to any actual or attempted unauthorized access to the security zones, or actual or attempted theft, sabotage, or diversion of category 1 or category 2 quantities of radioactive material at licensee facilities or temporary job sites. For any unauthorized access involving an actual or attempted theft, sabotage, or diversion of category 1 or category 2 quantities of radioactive material, the licensee's response shall include requesting, without delay, an armed response from the LLEA.(n) Maintenance and testing.(1) Each licensee subject to subsections (i) - (m) of this section, this subsection, and subsections (o) - (q) of this section shall implement a maintenance and testing program to ensure that intrusion alarms, associated communication systems, and other physical components of the systems used to secure or detect unauthorized access to radioactive material are maintained in operable condition and capable of performing their intended function when needed. The equipment relied on to meet the security requirements of this section must be inspected and tested for operability and performance at the manufacturer's suggested frequency. If there is no manufacturer's suggested frequency, the testing must be performed at least annually, not to exceed 12 months.(2) The licensee shall maintain records on the maintenance and testing activities for three years.(o) Requirements for mobile devices. Each licensee that possesses mobile devices containing category 1 or category 2 quantities of radioactive material must:(1) have two independent physical controls that form tangible barriers to secure the material from unauthorized removal when the device is not under direct control and constant surveillance by the licensee; and(2) for devices in or on a vehicle or trailer, unless the health and safety requirements for a site prohibit the disabling of the vehicle, the licensee shall utilize a method to disable the vehicle or trailer when not under direct control and constant surveillance by the licensee. Licensees shall not rely on the removal of an ignition key to meet this requirement.(p) Security program review.(1) Each licensee shall be responsible for the continuing effectiveness of the security program. Each licensee shall ensure that the security program is reviewed to confirm compliance with the requirements of subsections (i) - (o) of this section, this subsection, and subsection (q) of this section and that comprehensive actions are taken to correct any noncompliance that is identified. The review must include the radioactive material security program content and implementation. Each licensee shall periodically (at least annually) review the security program content and implementation.(2) The results of the review, along with any recommendations, must be documented. Each review report must identify conditions that are adverse to the proper performance of the security program, the cause of the condition(s), and, when appropriate, recommend corrective actions, and corrective actions taken. The licensee shall review the findings and take any additional corrective actions necessary to preclude repetition of the condition, including reassessment of the deficient areas where indicated.(3) The licensee shall maintain the review documentation for three years.(q) Reporting of events.(1) The licensee shall immediately notify the LLEA after determining that an unauthorized entry resulted in an actual or attempted theft, sabotage, or diversion of a category 1 or category 2 quantity of radioactive material. As soon as possible after initiating a response, but not at the expense of causing delay or interfering with the LLEA response to the event, the licensee shall notify the Office of Compliance and Enforcement 24-hour Emergency Response at 1-800-832-8224. In no case shall the notification to the commission or the NRC be later than four hours after the discovery of any attempted or actual theft, sabotage, or diversion.(2) The licensee shall assess any suspicious activity related to possible theft, sabotage, or diversion of category 1 or category 2 quantities of radioactive material and notify the LLEA as appropriate. As soon as possible but not later than four hours after notifying the LLEA, the licensee shall notify the Office of Compliance and Enforcement 24-hour Emergency Response at 1-800-832-8224.(3) The initial telephonic notification required by paragraph (1) of this subsection must be followed, within a period of 30 days, by a written report submitted to the executive director. The report must include sufficient information for commission analysis and evaluation, including identification of any necessary corrective actions to prevent future instances.(r) Additional requirements for transfer of category 1 and category 2 quantities of radioactive material. A licensee transferring a category 1 or category 2 quantity of radioactive material to a licensee of the commission, the NRC, or an Agreement State shall meet the license verification provisions listed in this subsection instead of those listed in §336.331(d) of this title (relating to Transfer of Radioactive Material):(1) Any licensee transferring category 1 quantities of radioactive material to a licensee of the commission, the NRC, or an Agreement State, prior to conducting such transfer, shall verify with the NRC's license verification system or the license issuing authority that the transferee's license authorizes the receipt of the type, form, and quantity of radioactive material to be transferred and that the licensee is authorized to receive radioactive material at the location requested for delivery. If the verification is conducted by contacting the license issuing authority, the transferor shall document the verification. For transfers within the same organization, the licensee does not need to verify the transfer.(2) Any licensee transferring category 2 quantities of radioactive material to a licensee of the commission, the NRC, or an Agreement State, prior to conducting such transfer, shall verify with the NRC's license verification system or the license issuing authority that the transferee's license authorizes the receipt of the type, form, and quantity of radioactive material to be transferred. If the verification is conducted by contacting the license issuing authority, the transferor shall document the verification. For transfers within the same organization, the licensee does not need to verify the transfer.(3) In an emergency where the licensee cannot reach the license issuing authority and the license verification system is nonfunctional, the licensee may accept a written certification by the transferee that it is authorized by license to receive the type, form, and quantity of radioactive material to be transferred. The certification must include the license number, current revision number, issuing agency, expiration date, and for a category 1 shipment the authorized address. The licensee shall keep a copy of the certification. The certification must be confirmed by use of the NRC's license verification system or by contacting the license issuing authority by the end of the next business day.(4) The transferor shall keep a copy of the verification documentation as a record for three years.(s) Applicability of physical protection of category 1 and category 2 quantities of radioactive material during transit. The shipping licensee shall be responsible for meeting the requirements of subsection (r) of this section, this subsection, and subsections (t) - (w) of this section unless the receiving licensee has agreed in writing to arrange for the in-transit physical protection required under subsection (r) of this section, this subsection, and subsections (t) - (w) of this section.(t) Preplanning and coordination of shipment of category 1 or category 2 quantities of radioactive material.(1) Each licensee that plans to transport, or deliver to a carrier for transport, licensed material that is a category 1 quantity of radioactive material outside the confines of the licensee's facility or other place of use or storage shall:(A) preplan and coordinate shipment arrival and departure times with the receiving licensee;(B) preplan and coordinate shipment information with the governor or the governor's designee of any state through which the shipment will pass to:(i) discuss the state's intention to provide law enforcement escorts; and(ii) identify safe havens; and(C) document the preplanning and coordination activities.(2) Each licensee that plans to transport, or deliver to a carrier for transport, licensed material that is a category 2 quantity of radioactive material outside the confines of the licensee's facility or other place of use or storage shall coordinate the shipment no-later-than arrival time and the expected shipment arrival with the receiving licensee. The licensee shall document the coordination activities.(3) Each licensee who receives a shipment of a category 2 quantity of radioactive material shall confirm receipt of the shipment with the originator. If the shipment has not arrived by the no-later-than arrival time, the receiving licensee shall notify the originator.(4) Each licensee, who transports or plans to transport a shipment of a category 2 quantity of radioactive material, and determines that the shipment will arrive after the no-later-than arrival time provided pursuant to paragraph (2) of this subsection, shall promptly notify the receiving licensee of the new no-later-than arrival time.(5) The licensee shall retain a copy of the documentation for preplanning and coordination and any revision thereof as a record for three years.(u) Advance notification of shipment of category 1 quantities of radioactive material. As specified in paragraphs (1) and (2) of this subsection, each licensee shall provide advance notification to the NRC, to the executive director, and the governor of a state, or the governor's designee, of the shipment of licensed material in a category 1 quantity, through or across the boundary of the state, before the transport or delivery to a carrier for transport of the licensed material outside the confines of the licensee's facility or other place of use or storage.(1) Procedures for submitting advance notification.(A) The notification must be made to the executive director, to the commission, and to the office of each appropriate governor or governor's designee. The contact information, including telephone and mailing addresses, of governors and governors' designees, is available on the NRC's website at https://scp.nrc.gov/special/designee.pdf . A list of the contact information is also available upon request from the Director, Division of Materials Safety, Security, State, and Tribal Programs, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. (B) A notification delivered by mail must be postmarked at least seven days before transport of the shipment commences at the shipping facility.(C) A notification delivered by any means other than mail must reach the commission and the executive director at least four days before the transport of the shipment commences and must reach the office of the governor or the governor's designee at least four days before transport of a shipment within or through the state.(2) Information to be furnished in advance notification of shipment. Each advance notification of shipment of category 1 quantities of radioactive material must contain the following information, if available at the time of notification:(A) the name, address, and telephone number of the shipper, carrier, and receiver of the category 1 radioactive material;(B) the license numbers of the shipper and receiver;(C) a description of the radioactive material contained in the shipment, including the radionuclides and quantity;(D) the point of origin of the shipment and the estimated time and date that shipment will commence;(E) the estimated time and date that the shipment is expected to enter each state along the route;(F) the estimated time and date of arrival of the shipment at the destination; and(G) a point of contact, with a telephone number, for current shipment information.(3) Revision notice.(A) The licensee shall provide any information not previously available at the time of the initial notification, as soon as the information becomes available but not later than commencement of the shipment, to the governor of the state or the governor's designee, to the executive director, and to the commission.(B) A licensee shall promptly notify the governor of the state or the governor's designee of any changes to the information provided in accordance with paragraph (2) of this subsection and subparagraph (A) of this paragraph. The licensee shall also immediately notify the commission and the executive director of any such changes.(4) Cancellation notice. Each licensee who cancels a shipment for which advance notification has been sent shall send a cancellation notice to the governor of each state or to the governor's designee previously notified, to the executive director, and to the commission. The licensee shall send the cancellation notice before the shipment would have commenced or as soon thereafter as possible. The licensee shall state in the notice that it is a cancellation and identify the advance notification that is being canceled.(5) Records. The licensee shall retain a copy of the advance notification and any revision and cancellation notices as a record for three years.(6) Protection of information. State officials, State employees, and other individuals, whether or not licensees of the commission, NRC, or an Agreement State, who receive schedule information of the kind specified in paragraph (2) of this subsection shall protect that information against unauthorized disclosure as specified in subsection (j)(4) of this section.(v) Requirements for physical protection of category 1 and category 2 quantities of radioactive material during shipment.(1) Shipments by road.(A) Each licensee who transports, or delivers to a carrier for transport, in a single shipment, a category 1 quantity of radioactive material shall:(i) Ensure that movement control centers are established that maintain position information from a remote location. These control centers must monitor shipments 24 hours a day, seven days a week, and have the ability to communicate immediately, in an emergency, with the appropriate law enforcement agencies.(ii) Ensure that redundant communications are established that allow the transport to contact the escort vehicle (when used) and movement control center at all times. Redundant communications may not be subject to the same interference factors as the primary communication.(iii) Ensure that shipments are continuously and actively monitored by a telemetric position monitoring system or an alternative tracking system reporting to a movement control center. A movement control center must provide positive confirmation of the location, status, and control over the shipment. The movement control center must be prepared to promptly implement preplanned procedures in response to deviations from the authorized route or a notification of actual, attempted, or suspicious activities related to the theft, loss, or diversion of a shipment. These procedures will include, but not be limited to, the identification of and contact information for the appropriate LLEA along the shipment route.(iv) Provide an individual to accompany the driver for those highway shipments with a driving time period greater than the maximum number of allowable hours of service in a 24-hour duty day as established by the Department of Transportation Federal Motor Carrier Safety Administration. The accompanying individual may be another driver.(v) Develop written normal and contingency procedures to address:(I) notifications to the communication center and law enforcement agencies;(II) communication protocols. Communication protocols must include a strategy for the use of authentication codes and duress codes and provisions for refueling or other stops, detours, and locations where communication is expected to be temporarily lost;(III) loss of communications; and(IV) responses to an actual or attempted theft or diversion of a shipment.(vi) Each licensee who makes arrangements for the shipment of category 1 quantities of radioactive material shall ensure that drivers, accompanying personnel, and movement control center personnel have access to the normal and contingency procedures.(B) Each licensee that transports category 2 quantities of radioactive material shall maintain constant control and/or surveillance during transit and have the capability for immediate communication to summon appropriate response or assistance.(C) Each licensee who delivers to a carrier for transport, in a single shipment, a category 2 quantity of radioactive material shall:(i) use carriers that have established package tracking systems. An established package tracking system is a documented, proven, and reliable system routinely used to transport objects of value. In order for a package tracking system to maintain constant control and/or surveillance, the package tracking system must allow the shipper or transporter to identify when and where the package was last and when it should arrive at the next point of control;(ii) use carriers that maintain constant control and/or surveillance during transit and have the capability for immediate communication to summon appropriate response or assistance; and(iii) use carriers that have established tracking systems that require an authorized signature prior to releasing the package for delivery or return.(2) Shipments by rail.(A) Each licensee who transports, or delivers to a carrier for transport, in a single shipment, a category 1 quantity of radioactive material shall:(i) Ensure that rail shipments are monitored by a telemetric position monitoring system or an alternative tracking system reporting to the licensee, third-party, or railroad communications center. The communications center shall provide positive confirmation of the location of the shipment and its status. The communications center shall implement preplanned procedures in response to deviations from the authorized route or to a notification of actual, attempted, or suspicious activities related to the theft or diversion of a shipment. These procedures will include, but not be limited to, the identification of and contact information for the appropriate LLEA along the shipment route.(ii) Ensure that periodic reports to the communications center are made at preset intervals.(B) Each licensee who transports, or delivers to a carrier for transport, in a single shipment, a category 2 quantity of radioactive material shall:(i) use carriers that have established package tracking systems. An established package tracking system is a documented, proven, and reliable system routinely used to transport objects of value. In order for a package tracking system to maintain constant control and/or surveillance, the package tracking system must allow the shipper or transporter to identify when and where the package was last and when it should arrive at the next point of control;(ii) use carriers that maintain constant control and/or surveillance during transit and have the capability for immediate communication to summon appropriate response or assistance; and(iii) use carriers that have established tracking systems that require an authorized signature prior to releasing the package for delivery or return.(3) Investigations. Each licensee who makes arrangements for the shipment of category 1 quantities of radioactive material shall immediately conduct an investigation upon the discovery that a category 1 shipment is lost or missing. Each licensee who makes arrangements for the shipment of category 2 quantities of radioactive material shall immediately conduct an investigation, in coordination with the receiving licensee, of any shipment that has not arrived by the designated no-later-than arrival time.(w) Reporting of events.(1) The shipping licensee shall notify the appropriate LLEA and the Office of Compliance and Enforcement 24-hour Emergency Response at 1-800-832-8224 within one hour of its determination that a shipment of category 1 quantities of radioactive material is lost or missing. The appropriate LLEA would be the law enforcement agency in the area of the shipment's last confirmed location. During the investigation required by subsection (v)(3) of this section, the shipping licensee will provide agreed upon updates to the executive director on the status of the investigation.(2) The shipping licensee shall notify the Office of Compliance and Enforcement 24-hour Emergency Response at 1-800-832-8224 within four hours of its determination that a shipment of category 2 quantities of radioactive material is lost or missing. If, after 24 hours of its determination that the shipment is lost or missing, the radioactive material has not been located and secured, the licensee shall immediately notify the executive director.(3) The shipping licensee shall notify the designated LLEA along the shipment route as soon as possible upon discovery of any actual or attempted theft or diversion of a shipment or suspicious activities related to the theft or diversion of a shipment of a category 1 quantity of radioactive material. As soon as possible after notifying the LLEA, the licensee shall notify the Office of Compliance and Enforcement 24-hour Emergency Response at 1-800-832-8224 upon discovery of any actual or attempted theft or diversion of a shipment or any suspicious activity related to the shipment of category 1 radioactive material.(4) The shipping licensee shall notify the Office of Compliance and Enforcement 24-hour Emergency Response at 1-800-832-8224 as soon as possible upon discovery of any actual or attempted theft or diversion of a shipment or any suspicious activity related to the shipment, of a category 2 quantity of radioactive material.(5) The shipping licensee shall notify the Office of Compliance and Enforcement 24-hour Emergency Response at 1-800-832-8224 and the LLEA as soon as possible upon recovery of any lost or missing category 1 quantities of radioactive material.(6) The shipping licensee shall notify the Office of Compliance and Enforcement 24-hour Emergency Response at 1-800-832-8224 as soon as possible upon recovery of any lost or missing category 2 quantities of radioactive material.(7) The initial telephonic notification required by paragraphs (1) - (4) of this subsection must be followed within a period of 30 days by a written report submitted to the executive director. A written report is not required for notifications on suspicious activities required by paragraphs (3) and (4) of this subsection. The report must set forth the following information:(A) a description of the licensed material involved, including kind, quantity, and chemical and physical form;(B) a description of the circumstances under which the loss or theft occurred;(C) a statement of disposition, or probable disposition, of the licensed material involved;(D) actions that have been taken, or will be taken, to recover the material; and(E) procedures or measures that have been, or will be, adopted to ensure against a recurrence of the loss or theft of licensed material.(8) Subsequent to filing the written report, the licensee shall also report any additional substantive information on the loss or theft within 30 days after the licensee learns of such information.(x) Form of records. Each record required by this section must be legible throughout the retention period specified in regulation by the licensing authority. The record may be the original or a reproduced copy or a microform, provided that the copy or microform is authenticated by authorized personnel and that the microform is capable of producing a clear copy throughout the required retention period. The record may also be stored in electronic media with the capability for producing legible, accurate, and complete records during the required retention period. Records such as letters, drawings, and specifications, must include all pertinent information such as stamps, initials, and signatures. The licensee shall maintain adequate safeguards against tampering with and loss of records.(y) Record retention. Licensees shall maintain the records that are required in this section for the period specified by the appropriate regulation. If a retention period is not otherwise specified, these records must be retained until the executive director terminates the facility's license. All records related to this section may be destroyed upon executive director termination of the facility license.(z) Category 1 and category 2 radioactive materials. The terabecquerel (TBq) values are the regulatory standard. The curie (Ci) values specified are obtained by converting from the TBq value. The Ci values are provided for practical usefulness only.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.357 adopted to be effective December 31, 2015, 40 TexReg 9701; amended to be effective December 8, 2016, 41 TexReg 9583; amended to be effective May 19, 2022, 47 TexReg 2868; amended to be effective December 11, 2024, 49 TexReg 10003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.358"><num value="336.358">§336.358</num><heading>Appendix A. Assigned Protection Factors for Respirators</heading><content>Assigned Protection factors are as follows. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.358 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective August 30, 2001, 26 TexReg 6309.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.359"><num value="336.359">§336.359</num><heading>Appendix B. Annual Limits on Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage</heading><content>(a) Introduction. For each radionuclide, Table I indicates the chemical form that is to be used for selecting the appropriate ALI or DAC value. The ALIs and DACs for inhalation are given for an aerosol with an activity median aerodynamic diameter (AMAD) of 1 micrometer and for three classes (D,W,Y) of radioactive material, which refer to their retention (approximately days, weeks, or years) in the pulmonary region of the lung. This classification applies to a range of clearance half-times for D of less than 10 days, for W from 10 to 100 days, and for Y greater than 100 days. (1) The class (D, W, or Y) given in the column headed "Class" applies only to the inhalation ALIs and DACs given in Table I, Columns 2 and 3. Table II provides concentration limits for airborne and liquid effluents released to the general environment. Table III provides concentration limits for discharges to sanitary sewerage. (2) The values in Tables I, II, and III are presented in the computer "E" notation. In this notation, a value of 6E-02 represents a value of 6 x 10-2 or 0.06, 6E+2 represents 6 x 102 or 600, and 6E+0 represents 6 x 100 or 6. Values are given in units of microcuries (µCi) or microcuries per milliliter (µCi/ml), as indicated. (b) Table I, "Occupational Values". Note that the columns in Table I of this appendix captioned "Oral Ingestion ALI," "Inhalation ALI," and "DAC," are applicable to occupational exposure to radioactive material. (1) The ALIs in this appendix are the annual intakes of a given radionuclide by "reference man" that would result in either a committed effective dose equivalent of 5 rems (0.05 sievert) (stochastic ALI) or a committed dose equivalent of 50 rems (0.5 sievert) to an organ or tissue (non-stochastic ALI). The stochastic ALIs were derived to result in a risk, due to irradiation of organs and tissues, comparable to the risk associated with deep dose equivalent to the whole body of 5 rems (0.05 sievert). The derivation includes multiplying the committed dose equivalent to an organ or tissue by a weighting factor, wT . This weighting factor is the proportion of the risk of stochastic effects resulting from irradiation of the organ or tissue, T, to the total risk of stochastic effects when the whole body is irradiated uniformly. The values of w T are listed under the definition of "weighting factor" in §336.2 of this title (relating to Definitions). The non-stochastic ALIs were derived to avoid non-stochastic effects, such as prompt damage to tissue or reduction in organ function. (2) A value of wT = 0.06 is applicable to each of the five organs or tissues in the "remainder" category receiving the highest dose equivalents, and the dose equivalents of all other remaining tissues may be disregarded. The following parts of the GI tract--stomach, small intestine, upper large intestine, and lower large intestine--are to be treated as four separate organs. (3) Note that the dose equivalents for an extremity, skin, and lens of the eye are not considered in computing the committed effective dose equivalent but are subject to limits that must be met separately. When an ALI is defined by the stochastic dose limit, this value alone is given. (4) When an ALI is determined by the non-stochastic dose limit to an organ, the organ or tissue to which the limit applies is shown, and the ALI for the stochastic limit is shown in parentheses. The following abbreviated organ or tissue designations are used: (A) LLI wall = lower large intestine wall; (B) St wall = stomach wall; (C) Blad wall = bladder wall; and (D) Bone surf = bone surface. (5) The use of the ALIs listed first, the more limiting of the stochastic and non-stochastic ALIs, will ensure that non-stochastic effects are avoided and that the risk of stochastic effects is limited to an acceptably low value. If, in a particular situation involving a radionuclide for which the non-stochastic ALI is limiting, use of that non-stochastic ALI is considered unduly conservative, the licensee may use the stochastic ALI to determine the committed effective dose equivalent. However, the licensee shall also ensure that the 50-rem (0.5 sievert) dose equivalent limit for any organ or tissue is not exceeded by the sum of the external deep dose equivalent plus the internal committed dose equivalent to that organ (not the effective dose). For the case where there is no external dose contribution, this would be demonstrated if the sum of the fractions of the nonstochastic ALIs (ALIns ) that contribute to the committed dose equivalent to the organ receiving the highest dose does not exceed 1 (i.e., Sigma (intake in µCi of each radionuclide/ALIns ) < 1.0). If there is an external deep-dose equivalent contribution of Hd , then this sum must be less than 1 - (Hd /50), instead of < 1.0. (6) The DAC values are derived limits intended to control chronic occupational exposures. The relationship between the DAC and the ALI is given by: Attached Graphic(7) The DAC values relate to one of two modes of exposure: either external submersion or the internal committed dose equivalents resulting from inhalation of radioactive materials. The DAC values based upon submersion are for immersion in a semi-infinite cloud of uniform concentration and apply to each radionuclide separately. (8) The ALI and DAC values include contributions to exposure by the single radionuclide named and any in-growth of daughter radionuclides produced in the body by decay of the parent. However, intakes that include both the parent and daughter radionuclides shall be treated by the general method appropriate for mixtures. (9) The values of ALI and DAC do not apply directly when the individual both ingests and inhales a radionuclide, when the individual is exposed to a mixture of radionuclides by either inhalation or ingestion or both, or when the individual is exposed to both internal and external irradiation (see §336.306 of this title (relating to Compliance with Requirements for Summation of External and Internal Doses)). When an individual is exposed to radioactive materials which fall under several of the translocation classifications of the same radionuclide (i.e., Class D, Class W, or Class Y), the exposure may be evaluated as if it were a mixture of different radionuclides. (10) It shall be noted that the classification of a compound as Class D, W, or Y is based on the chemical form of the compound and does not take into account the radiological half-life of different radionuclides. For this reason, values are given for Class D, W, and Y compounds, even for very short-lived radionuclides. (c) Table II, "Effluent Concentrations". The columns in Table II of this appendix captioned "Effluent Concentrations," "Air," and "Water" are applicable to the assessment and control of dose to the public, particularly in the implementation of the provisions of §336.314 of this title (relating to Compliance with Dose Limits for Individual Members of the Public). The concentration values given in Columns 1 and 2 of Table II are equivalent to the radionuclide concentrations which, if inhaled or ingested continuously over the course of a year, would produce a total effective dose equivalent of 0.05 rem (0.5 millisievert). (1) Consideration of non-stochastic limits has not been included in deriving the air and water effluent concentration limits because non-stochastic effects are presumed not to occur at or below the dose levels established for individual members of the public. For radionuclides, where the non-stochastic limit was governing in deriving the occupational DAC, the stochastic ALI was used in deriving the corresponding airborne effluent limit in Table II. For this reason, the DAC and airborne effluent limits are not always proportional. (2) The air concentration values listed in Table II, Column 1, were derived by one of two methods. For those radionuclides for which the stochastic limit is governing, the occupational stochastic inhalation ALI was divided by 2.4 x 109 ml, relating the inhalation ALI to the DAC and then divided by a factor of 300. The factor of 300 is composed of a factor of 50 to relate the 5-rem (0.05 sievert) annual occupational dose limit to the 0.1 rem (1 millisievert) limit for members of the public, a factor of 3 to adjust for the difference in exposure time and the inhalation rate for a worker and that for members of the public; and a factor of 2 to adjust the occupational values (derived for adults) so that they are applicable to other age groups. (3) For those radionuclides for which submersion (external dose) is limiting, the occupational DAC in Table I, Column 3, was divided by 219. The factor of 219 is composed of a factor of 50 and a factor of 4.38 relating occupational exposure for 2,000 hours/year to full-time exposure (8,760 hours/year). Note that an additional factor of 2 for age considerations is not warranted in the submersion case. (4) The water concentrations were derived by taking the most restrictive occupational stochastic oral ingestion ALI and dividing by 7.3 x 107 ml. The factor of 7.3 x 107 ml is composed of the factors of 50 and 2 and a factor of 7.3 x 105 ml which is the annual water intake of "reference man." (5) Note 6 of this appendix provides groupings of radionuclides that are applicable to unknown mixtures of radionuclides. These groupings, including occupational inhalation ALIs and DACs, air and water effluent concentrations, and releases to sewerage, require demonstrating that the most limiting radionuclides in successive classes are absent. The limit for the unknown mixture is defined when the presence of one of the listed radionuclides cannot be definitely excluded either from knowledge of the radionuclide composition of the source or from actual measurements. (d) Table III, "releases to sewers." The monthly average concentrations for release to sanitary sewerage are applicable to the provisions in §336.215 of this title (relating to Disposal by Release into Sanitary Sewerage). The concentration values were derived by taking the most restrictive occupational stochastic oral ingestion ALI and dividing by 7.3 x 106 ml. The factor of 7.3 x 106 ml is composed of a factor of 7.3 x 105 ml, the annual water intake by "reference man," and a factor of 10, such that the concentrations, if the sewage released by the licensee were the only source of water ingested by a "reference man" during a year, would result in a committed effective dose equivalent of 0.5 rem (5 millisieverts). Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.359 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective August 30, 2001, 26 TexReg 6309; amended to be effective February 2, 2012, 37 TexReg 335.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.360"><num value="336.360">§336.360</num><heading>Appendix C. Quantities of Licensed Material Requiring Labeling</heading><content>Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.360 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.362"><num value="336.362">§336.362</num><heading>Appendix E. Classification and Characteristics of Low-Level Radioactive Waste</heading><content>(a) Classification of radioactive waste for near-surface disposal.(1) Considerations. Determination of the classification of radioactive waste involves two considerations. First, consideration must be given to the concentration of long-lived radionuclides (and their shorter-lived precursors) whose potential hazards persist long after precautions such as institutional controls, improved waste form, and deeper disposal have ceased to be effective. These precautions delay the time when long-lived radionuclides could cause exposures. In addition, the magnitude of the potential dose is limited by the concentration and availability of the radionuclide at the time of exposure. Second, consideration must be given to the concentration of shorter-lived radionuclides for which requirements on institutional controls, waste form, and disposal methods are effective.(2) Classes of waste.(A) Class A waste is waste that is usually segregated from other waste classes at the disposal site. The physical form and characteristics of Class A waste must meet the minimum requirements set forth in subsection (b)(1) of this appendix. If Class A waste also meets the stability requirements set forth in subsection (b)(2) of this appendix, it is not necessary to segregate the waste for disposal. (B) Class B waste is waste that must meet more rigorous requirements on waste form to ensure stability after disposal. The physical form and characteristics of Class B waste must meet both the minimum and stability requirements set forth in subsection (b) of this appendix.(C) Class C waste is waste that not only must meet more rigorous requirements on waste form to ensure stability but also requires additional measures at the disposal facility to protect against inadvertent intrusion. The physical form and characteristics of Class C waste must meet both the minimum and stability requirements set forth in subsection (b) of this appendix.(D) Waste that is not generally acceptable for near-surface disposal is waste for which form and disposal methods must be different, and in general more stringent, than those specified for Class C waste. Disposal of this waste is regulated by the United States Nuclear Regulatory Commission.(3) Classification determined by long-lived radionuclides. If the radioactive waste contains only radionuclides listed in Table I, classification shall be determined as follows:Attached Graphic(A) If the concentration does not exceed 0.1 times the value in Table I, the waste is Class A.(B) If the concentration exceeds 0.1 times the value in Table I but does not exceed the value in Table I, the waste is Class C.(C) If the concentration exceeds the value in Table I, the waste is not generally acceptable for near-surface disposal.(D) For wastes containing mixtures of radionuclides listed in Table I, the total concentration shall be determined by the sum of fractions rule described in paragraph (7) of this subsection.(4) Classification determined by short-lived radionuclides. If the radioactive waste does not contain any of the radionuclides 22 TexReg 4616 May 27, 1997 Texas Registerlisted in Table I, classification shall be determined based on the concentrations shown in Table II. However, as specified in paragraph (6) of this subsection, if radioactive waste does not contain any nuclides listed in either Table I or II, it is Class A.(A) If the concentration does not exceed the value in Column 1, the waste is Class A.(B) If the concentration exceeds the value in Column 1 but does not exceed the value in Column 2, the waste is Class B.(C) If the concentration exceeds the value in Column 2 but does not exceed the value in Column 3, the waste is Class C.(D) If the concentration exceeds the value in Column 3, the waste is not generally acceptable for near-surface disposal.(E) For wastes containing mixtures of the radionuclides listed in Table II, the total concentration shall be determined by the sum of fractions rule described in paragraph (7) of this subsection.Attached Graphic(5) Classification determined by both long- and shortlived radionuclides. If the radioactive waste contains a mixture of radionuclides, some of which are listed in Table I and some of which are listed in Table II, classification shall be determined as follows:(A) If the concentration of a radionuclide listed in Table I does not exceed 0.1 times the value listed in Table I, the class shall be that determined by the concentration of radionuclides listed in Table II.(B) If the concentration of a radionuclide listed in Table I exceeds 0.1 times the value listed in Table I but does not exceed the value in Table I, the waste shall be Class C, provided the concentration of radionuclides listed in Table II does not exceed the value shown in Column 3 of Table II.(6) Classification of wastes with radionuclides other than those listed in Tables I and II. If the waste does not contain any radionuclides listed in either Table I or II, it is Class A.(7) The sum of the fractions rule for mixtures of radionuclides. For determining classification for waste that contains a mixture of radionuclides, it is necessary to determine the sum of fractions by dividing each radionuclide's concentration by the appropriate limit and adding the resulting values. The appropriate limits must all be taken from the same column of the same table. The sum of the fractions for the column must be less than 1.0 if the waste class is to be determined by that column. For example, if a waste contains strontium-90 in a concentration of 50 curies/cubic meter (Ci/m3) (1.85 terabecquerels/m3) and cesium-137 in a concentration of 22 Ci/m3 (814 gigabecquerels/m3), since the concentrations both exceed the values in Column 1, Table II, they must be compared to the Column 2 values. For the strontium-90 fraction, 50/150 = 0.33, and for the cesium-137 fraction, 22/44 = 0.5; the sum of the fractions = 0.83. Since the sum is less than 1.0, the waste is Class B.(8) Determination of concentrations in wastes. The concentration of a radionuclide may be determined by indirect methods, such as use of scaling factors which relate the inferred concentration of one radionuclide to another that is measured, or radionuclide material accountability, if there is reasonable assurance that the indirect methods can be correlated with actual measurements. The concentration of a radionuclide may be averaged over the volume of the waste, or weight of the waste if the units are expressed as nanocuries per gram.(b) Radioactive waste characteristics.(1) The following are minimum requirements for all classes of waste and are intended to facilitate handling and to provide protection of health and safety of personnel at the disposal site.(A) Waste shall be packaged in conformance with the conditions of the license issued for the disposal site. Where the license conditions for the disposal site are more restrictive than the provisions of this appendix, the license conditions shall govern.(B) Waste shall not be packaged for disposal in cardboard or fiberboard boxes.(C) Liquid waste shall be solidified or packaged in sufficient absorbent material to absorb twice the volume of the liquid.(D) Solid waste containing liquid shall contain as little free-standing and noncorrosive liquid as is reasonably achievable, but in no case shall the liquid exceed 1.0% of the volume.(E) Waste shall not be readily capable of detonation or of explosive decomposition or reaction at normal pressures and temperatures or of explosive reaction with water.(F) Waste shall not contain, or be capable of generating, quantities of toxic gases, vapors, or fumes harmful to persons transporting, handling, or disposing of the waste. This does not apply to radioactive gaseous waste packaged in accordance with subparagraph (H) of this paragraph.(G) Waste must not be pyrophoric. Pyrophoric materials contained in waste shall be treated, prepared, and packaged to be nonflammable.(H) Waste in a gaseous form shall be packaged at an absolute pressure that does not exceed 1.5 atmospheres at 20 degrees Celsius. Total activity shall not exceed 100 curies (3.7 terabecquerels) per container.(I) Waste containing hazardous, biological, pathogenic, or infectious material shall be treated to reduce to the maximum extent practicable the potential hazard from the nonradiological materials.(2) The following requirements are intended to provide stability of the waste. Stability is intended to ensure that the waste does not degrade and affect overall stability of the site through slumping, collapse, or other failure of the disposal unit and thereby lead to water infiltration. Stability is also a factor in limiting exposure to an inadvertent intruder, since it provides a recognizable and nondispersible waste.(A) Waste shall have structural stability. A structurally stable waste form will generally maintain its physical dimensions and its form, under the expected disposal conditions such as weight of overburden and compaction equipment, the presence of moisture, and microbial activity and internal factors such as radiation effects and chemical changes. Structural stability can be provided by the waste form itself, processing the waste to a stable form, or placing the waste in a disposal container or structure that provides stability after disposal.(B) Notwithstanding the provisions in paragraphs (1)(C) and (D) of this subsection, liquid wastes, or wastes containing liquid, shall be converted into a form that contains as little free-standing and non-corrosive liquid as is reasonably achievable, but in no case shall the liquid exceed 1.0% of the volume of the waste when the waste is in a disposal container designed to ensure stability, or 0.5% of the volume of the waste for waste processed to a stable form.(C) Void spaces within the waste and between the waste and its package shall be reduced to the extent practicable.(c) Labeling. Each package of waste shall be clearly labeled to identify whether it is Class A, Class B, or Class C waste, in accordance with subsection (a) of this appendix.</content><note type="source"><p>Source Note: The provisions of this §336.362 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.363"><num value="336.363">§336.363</num><heading>Appendix F. Requirements for Receipt of Low-Level Radioactive Waste for Disposal at Licensed Land Disposal Facilities and Uniform Manifests</heading><content>(a) Manifest requirements for shipments received at licensed land disposal facilities.(1) Manifest forms required.(A) The operator of a licensed low-level radioactive waste land disposal facility shall not receive for disposal any waste which does not have a completed manifest which reflects the information requested on applicable United States Nuclear Regulatory Commission (NRC) Forms 540 (Uniform Low-Level Radioactive Waste Manifest (Shipping Paper)) and 541 (Uniform Low-Level Radioactive Waste Manifest (Container and Waste Description)) and, if necessary, on an applicable NRC Form 542 (Uniform Low-Level Radioactive Waste Manifest (Manifest Index and Regional Compact Tabulation)), as those forms and requirements are prescribed in 10 Code of Federal Regulations (CFR) §61.80, as amended (relating to Licensing Requirements for Land Disposal of Radioactive Waste) and 10 CFR §20.2006, as amended (relating to Standards for Protection Against Radiation). The NRC Forms 540 and 540A must be completed and must physically accompany the waste shipment received at the licensed land disposal facility. Upon agreement between the shipper and the licensed land disposal facility, NRC Forms 541 and 541A and 542 and 542A may be completed, transmitted, and stored in electronic media with the capability for producing legible, accurate, and complete records on the respective forms.(B) Copies of manifests required by this appendix may be legible carbon copies, photocopies, or computer printouts that reproduce the data in the format of the uniform manifest.(C) This appendix includes information requirements of the United States Department of Transportation (DOT), as codified in 49 CFR Part 172. Specific information on hazardous, medical, or other waste that is required to meet EPA rules, as codified in 40 CFR Parts 259, 261, or elsewhere, is not addressed in this appendix and must be provided on the required EPA forms. However, the required EPA forms must accompany the Uniform Low-Level Radioactive Waste Manifest required by this appendix.(2) Definitions. Terms used in this appendix have the definitions set forth as follows:(A) Computer-readable medium--Means that the regulatory agency's computer can transfer the information from the medium into its memory.(B) NRC Forms 540, 540A, 541, 541A, 542, and 542A--Official NRC forms referenced in this appendix, as those forms and requirements are prescribed in 10 CFR §61.80, as amended and 10 CFR §20.2006, as amended. Forms received by the licensed land disposal facility need not be the originals of these forms provided that any substitute forms are equivalent to the original documentation in respect to content, clarity, size, and location of information. Upon agreement between the shipper and the licensed land disposal facility, NRC Forms 541 (and 541A) and 542 (and 542A) may be completed, transmitted, and stored in electronic media. The electronic media must have the capability for producing legible, accurate, and complete records in the format of the uniform manifest.(C) Shipper--For purposes of the rules in this appendix, the waste generator, waste collector, or waste processor who offers low-level radioactive waste for transportation and consigns the waste to a licensed land disposal facility operator.(D) Shipping paper--NRC Form 540 and, if required, NRC Form 540A, as those forms and requirements are prescribed in 10 CFR §61.80, as amended, which include the information required by DOT in 49 CFR Part 172.(E) Uniform Low-Level Radioactive Waste Manifest or uniform manifest--The combination of NRC Forms 540, 541, and, if necessary, 542, and their respective continuation sheets (Forms 540A, 541A, and 542A) as needed, or equivalent, as those forms and requirements are prescribed in 10 CFR §61.80, as amended.(3) Information requirements. The uniform manifest for waste received for disposal at a licensed land disposal facility shall include all information required by instructions accompanying the forms and by 10 CFR §61.80, as amended. This information shall include, as appropriate, general information, shipment information, disposal container and waste information, uncontainerized waste information, multi-generator disposal container information, and certifications.(b) Control and tracking.(1) The licensed land disposal facility operator shall acknowledge receipt of the waste within one week of receipt by returning, as a minimum, a signed copy of NRC Form 540 to the shipper, as this form and requirements are prescribed in 10 CFR §61.80, as amended and 10 CFR §20.2006 as amended through March 27, 1995 (60 FR 15663). The shipper to be notified is that who last possessed the waste and transferred the waste to the operator. If a discrepancy exists between materials listed on the uniform manifest and materials received, copies or electronic transfer of the affected forms must be returned indicating the discrepancy.(2) The land disposal facility operator shall maintain copies of all completed manifests and electronically store the information required by §336.740(i) of this title (relating to Maintenance of Records and Reports) until the commission terminates the license.(3) The land disposal facility operator shall notify the shipper, the Texas Department of Health, and the executive director when any shipment, or part of a shipment, has not arrived within 60 days after receipt of an advance manifest, unless notified by the shipper that the shipment has been canceled.</content><note type="source"><p>Source Note: The provisions of this §336.363 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.364"><num value="336.364">§336.364</num><heading>Appendix G. Acceptable Surface Contamination Levels</heading><content>Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.364 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.365"><num value="336.365">§336.365</num><heading>Appendix H. Radionuclide Concentration and Annual Activity Limits for Disposal in a Type I Municipal Solid Waste Facility or a Hazardous Waste Facility</heading><content>Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.365 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.367"><num value="336.367">§336.367</num><heading>Appendix J. Cumulative Occupational Exposure History</heading><content>Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.367 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scD/s336.368"><num value="336.368">§336.368</num><heading>Appendix K. Occupational Exposure Record for a Monitoring Period</heading><content>Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.368 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c336/scE"><num value="E">SUBCHAPTER E</num><heading>NOTICES, INSTRUCTIONS, AND REPORTS TO WORKERS AND INSPECTIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c336/scE/s336.401"><num value="336.401">§336.401</num><heading>Purpose and Scope</heading><content>This subchapter establishes requirements for notices, instructions, and reports by licensees to individuals engaged in work under a license and options available to those individuals in connection with inspections of licensees by the executive director to ascertain compliance with the provisions of the Texas Radiation Control Act and commission rules, orders, and licenses issued thereunder regarding radiological working conditions. The rules in this subchapter apply to all persons licensed by the commission under this chapter.</content><note type="source"><p>Source Note: The provisions of this §336.401 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scE/s336.402"><num value="336.402">§336.402</num><heading>Definitions</heading><content>Terms used in this subchapter are defined in §336.2 of this title (relating to Definitions).</content><note type="source"><p>Source Note: The provisions of this §336.402 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scE/s336.403"><num value="336.403">§336.403</num><heading>Posting of Notices to Workers</heading><content>(a) Each licensee shall post current copies of the following documents:(1) the rules in this subchapter and in Subchapter D of this chapter (relating to Standards for Protection Against Radiation);(2) the license, conditions or documents incorporated into the license by reference, and amendments thereto;(3) the operating procedures applicable to licensed activities; and(4) any notice of violation involving radiological working conditions, any proposed imposition of civil penalty, or any order issued under the Texas Radiation Control Act or the rules in this chapter and any response from the licensee.(b) If posting of a document specified in subsection (a)(1)-(3) of this section is not practicable, the licensee may post a notice which describes the document and states where it may be examined.(c) Commission form "Notice to Employees" (§336.410, Appendix A of this title (relating to Notice to Employees)) shall be posted by each licensee.(d) Documents, notices, or forms posted under this section shall appear in a sufficient number of places to permit individuals engaged in work under the license to observe them on the way to or from any particular work location to which the document applies, shall be conspicuous, and shall be replaced if defaced or altered.(e) Documents posted under subsection (a)(4) of this section shall be posted within two working days after receipt of the documents from the executive director or commission. The licensee's response, if any, shall be posted within two working days after dispatch by the licensee. Those documents shall remain posted for a minimum of five working days or until action correcting the violation has been completed, whichever is later.</content><note type="source"><p>Source Note: The provisions of this §336.403 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scE/s336.404"><num value="336.404">§336.404</num><heading>Instructions to Workers</heading><content>(a) All individuals who in the course of employment are likely to receive in a year an occupational dose in excess of 100 millirems (1 millisievert) shall be:(1) kept informed of the storage, transfer, or use of radiation and/or radioactive material;(2) instructed in the health protection problems associated with exposure to radiation and/or radioactive material, in precautions or procedures to minimize exposure, and in the purposes and functions of protective devices employed;(3) instructed in, and required to observe, to the extent within the worker's control, the applicable provisions of commission rules and licenses for the protection of personnel from exposures to radiation and/or radioactive material;(4) instructed of their responsibility to report promptly to the licensee any condition which may lead to or cause a violation of commission rules and licenses or unnecessary exposure to radiation and/or radioactive material;(5) instructed in the appropriate response to warnings made in the event of any unusual occurrence or malfunction that may involve exposure to radiation and/or radioactive material; and(6) advised as to the radiation exposure reports which workers may request under §336.405 of this title (relating to Notifications and Reports to Individuals).(b) In determining those individuals subject to the requirements of subsection (a) of this section, licensees shall take into consideration assigned activities during normal and abnormal situations involving exposure to radiation and/or radioactive material which can reasonably be expected to occur at a licensed facility. The extent of these instructions shall be commensurate with potential radiological health protection problems present in the work place.</content><note type="source"><p>Source Note: The provisions of this §336.404 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scE/s336.405"><num value="336.405">§336.405</num><heading>Notifications and Reports to Individuals</heading><content>(a) Radiation exposure data for an individual and the results of any measurements, analyses, and calculations of radioactive material deposited or retained in the body of an individual shall be reported to the individual as specified in this section. The information reported shall include data and results obtained under commission rules, orders, or license conditions, as shown in records maintained by the licensee under commission rules. Each notification and report shall be in writing; shall include appropriate identifying data such as the name of the licensee, the name of the individual, and the individual's social security number; shall include the individual's exposure information; and shall contain the statement "This report is furnished to you under the provisions of 30 Texas Administrative Code, Chapter 336, Subchapter E. You shall preserve this report for further reference."(b) Each licensee shall make dose information available to workers as shown in records maintained by the licensee under §336.346 of this title (relating to Records of Individual Monitoring Results). The licensee shall provide an annual report to each individual monitored under §336.316 of this title (relating to Conditions Requiring Individual Monitoring of External and Internal Occupational Dose) of the dose received in that monitoring year if:(1) the individual's occupational dose exceeds 1 millisievert (mSv) (100 millirem (mrem)) total effective dose equivalent or 1 mSv (100 mrem) to any individual organ or tissue; or(2) the individual requests his or her annual dose report in writing.(c) A former worker may request a report of the worker's exposure to radiation and/or radioactive material from the licensee.(1) At the request of a worker formerly engaged in licensed activities controlled by the licensee, each licensee shall furnish to the worker a report of the worker's exposure to radiation and/or to radioactive material:(A) as shown in records maintained by the licensee under §336.346 of this title for each year the worker was required to be monitored under the provisions of §336.316 of this title; and(B) for each year the worker was required to be monitored under the monitoring requirements in effect before January 1, 1994.(2) This report must be furnished within 30 days from the time the request is made or within 30 days after the exposure of the individual has been determined by the licensee, whichever is later. This report must cover the period of time that the worker's activities involved exposure to radiation from radioactive materials licensed by the commission and must include the dates and locations of licensed activities in which the worker participated during this period.(d) When a licensee is required under §336.335 of this title (relating to Reporting Requirements for Incidents), §336.352 of this title (relating to Reports of Exposures, Radiation Levels, and Concentrations of Radioactive Material Exceeding the Limits), §336.353 of this title (relating to Reports of Planned Special Exposures), or §336.355 of this title (relating to Reports of Individual Monitoring) to report to the executive director any exposure of an individual to radiation or radioactive material, the licensee shall also provide the individual a report of that individual's exposure data. This report must be transmitted at a time not later than the transmittal to the executive director.(e) At the request of a worker who is terminating employment with the licensee that involved exposure to radiation or radioactive materials, during the current year, each licensee shall provide at termination to each worker, or to the worker's designee, a written report regarding the radiation dose received by that worker from operations of the licensee during the current year or fraction thereof. If the most recent individual monitoring results are not available at that time, a written estimate of the dose shall be provided together with a clear indication that this is an estimate.</content><note type="source"><p>Source Note: The provisions of this §336.405 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 14, 2000, 25 TexReg 8989; amended to be effective February 2, 2012, 37 TexReg 335.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scE/s336.406"><num value="336.406">§336.406</num><heading>Presence of Representatives of Licensees and Workers During Inspections</heading><content>(a) Each licensee shall afford to the executive director and to inspectors representing the executive director at all reasonable times opportunity to inspect materials, activities, facilities, premises, and records under the rules in this chapter.(b) During an inspection, the inspectors may consult privately with workers as specified in §336.407 of this title (relating to Consultation with Workers During Inspections). The licensee or licensee's representative may accompany inspectors during other phases of an inspection.(c) If, at the time of inspection, an individual has been authorized by the workers to represent them during inspections, the licensee shall notify the inspectors of this authorization and shall give the workers' representative an opportunity to accompany the inspectors during the inspection of physical working conditions.(d) Each workers' representative shall be routinely engaged in licensed activities under control of the licensee and shall have received instructions as specified in §336.404 of this title (relating to Instructions to Workers).(e) Different representatives of licensees and workers may accompany the inspectors during different phases of an inspection if there is no resulting interference with the conduct of the inspection. However, only one workers' representative at a time may accompany the inspectors.(f) With the approval of the licensee and the workers' representative, an individual who is not routinely engaged in licensed activities under control of the licensee, for example, a consultant to the licensee or to the workers' representative, shall be afforded the opportunity to accompany inspectors during the inspection of physical working conditions.(g) Notwithstanding the other provisions of this section, the inspectors are authorized to refuse to permit accompaniment by any individual who deliberately interferes with a fair and orderly inspection. With regard to any area containing proprietary information, the workers' representative for that area shall be an individual previously authorized by the licensee to enter that area.</content><note type="source"><p>Source Note: The provisions of this §336.406 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scE/s336.407"><num value="336.407">§336.407</num><heading>Consultation with Workers During Inspections</heading><content>(a) The executive director or inspectors representing the executive director may consult privately with workers concerning matters of occupational radiation protection and other matters related to applicable provisions of commission rules and licenses to the extent the inspectors deem necessary for the conduct of an effective and thorough inspection.(b) During the course of an inspection, any worker may bring privately to the attention of the inspectors, either orally or in writing, any past or present condition which that individual has reason to believe may have contributed to or caused any violation of the Texas Radiation Control Act, the rules in this chapter, or license conditions or any unnecessary exposure of an individual to radiation from licensed radioactive material under the licensee's control. Any such notice in writing shall comply with the requirements of §336.408(a) of this title (relating to Requests by Workers for Inspections).(c) The provisions of subsection (b) of this section shall not be interpreted as authorization to disregard instructions under §336.404 of this title (relating to Instructions to Workers).</content><note type="source"><p>Source Note: The provisions of this §336.407 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scE/s336.408"><num value="336.408">§336.408</num><heading>Requests by Workers for Inspections</heading><content>(a) Any worker or representative of workers who believes that a violation of the Texas Radiation Control Act, the rules in this chapter, or license conditions exists or has occurred in work under a license with regard to radiological working conditions in which the worker is engaged may request an inspection by giving notice of the alleged violation to the executive director or to inspectors representing the executive director. Any notice shall be in writing, shall set forth the specific grounds for the notice, and shall be signed by the worker or representative of workers. A copy shall be provided to the licensee by the executive director or inspector no later than at the time of inspection, except that, upon the request of the worker giving notice, the worker's name and the name(s) of individual(s) referred to shall not appear in that copy or on any record published, released, or made available by the executive director, except for good cause shown.(b) If, upon receipt of such notice, the executive director determines that the request meets the requirements set forth in subsection (a) of this section, an inspection or investigation shall be made as soon as practicable to determine whether the alleged violation exists or has occurred. Inspections made under this section need not be limited to matters referred to in the request.(c) No licensee shall discharge or in any manner discriminate against any worker because that worker has filed any request or instituted or caused to be instituted any proceeding under the rules in this chapter or has testified or is about to testify in any such proceeding or because of the exercise by that worker on behalf of that individual or others of any option afforded by this subchapter.</content><note type="source"><p>Source Note: The provisions of this §336.408 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scE/s336.409"><num value="336.409">§336.409</num><heading>Inspections Not Warranted</heading><content>If the executive director determines that an inspection or investigation is not warranted because the requirements of §336.408(a) of this title (relating to Requests by Workers for Inspections) have not been met, the executive director shall notify the complainant in writing of the determination. This determination shall be without prejudice to the filing of a new request meeting the requirements of §336.408(a) of this title.</content><note type="source"><p>Source Note: The provisions of this §336.409 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scE/s336.410"><num value="336.410">§336.410</num><heading>Appendix A. Notice to Employees</heading><content>Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.410 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c336/scF"><num value="F">SUBCHAPTER F</num><heading>LICENSING OF ALTERNATIVE METHODS OF DISPOSAL OF RADIOACTIVE MATERIAL</heading><section identifier="/us/state/tx/tac/t30/p1/c336/scF/s336.501"><num value="336.501">§336.501</num><heading>Scope and General Provisions</heading><content>(a) This subchapter establishes alternative criteria, terms, and conditions under which the commission may issue, amend, or renew a license for on-site disposal of radioactive material generated in the person's activities, not otherwise specifically authorized in this chapter.(b) Except as provided by this subsection, the commission may not authorize new or additional facilities or the expansion of existing facilities for the on-site disposal of low-level radioactive waste, except to a person specifically authorized by law for low-level radioactive waste disposal. The commission may, on request or its own initiative, authorize, under this subchapter, on-site disposal of low-level radioactive waste on a specific basis at any facility at which low-level radioactive waste disposal operations began before September 1, 1989, if after evaluation of the specific characteristics of the waste, the disposal site, and the method of disposal, the commission finds that the continuation of the disposal activity will not constitute a significant risk to the public health and safety and to the environment.(c) No person authorized to dispose of radioactive material under this subchapter may receive radioactive material for the purpose of disposal from other persons, sources, other facilities owned or operated by the applicant or licensee, or any other off-site locations.(d) The commission may license the commercial disposal of naturally occurring radioactive material waste under Subchapter K of this chapter (relating to Commercial Disposal of Naturally Occurring Radioactive Material Waste from Public Water Systems).</content><note type="source"><p>Source Note: The provisions of this §336.501 adopted to be effective September 14, 2000, 25 TexReg 8989; amended to be effective January 8, 2004, 29 TexReg 150; amended to be effective July 21, 2005, 30 TexReg 4127.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scF/s336.513"><num value="336.513">§336.513</num><heading>Technical Requirements for Active Disposal Sites</heading><content>(a) Content of license application. An applicant for a license to authorize disposal of radioactive material shall submit the information required in Chapter 305 of this title (relating to Consolidated Permits) and the following:(1) an inventory of radionuclides in the wastes to be disposed of and the concentration and total activity of each radionuclide;(2) the estimated frequency of burials and estimated volume of waste in each burial;(3) a description of waste packaging;(4) a description of nonradiological constituents in the waste (e.g., hazardous wastes, heavy metals, absorbents, and chelating agents);(5) site characterization, including:(A) the identification of all soil layers by classification according to American Society for Testing and Materials (ASTM) methods (e.g., sand, gravel, silt, and clay), soil engineering properties, and infiltration and drainage characteristics (e.g., coefficient of permeability according to ASTM D5084);(B) stratigraphy (geological identification) of the near-surface subsoils;(C) geologic hazards, including faulting, seismic activity, sink holes, solution depressions, and flooding, including identification of the 100-year floodplain;(D) hydrological data, including porosity, distribution coefficient, hydraulic conductivity, soils dispersivity, and hydraulic gradient;(E) groundwater, including use, depth to aquifer, fluctuation, discharge location, and saturated thickness;(F) water wells in the vicinity, including location, use, depth, and water level;(G) surface drainages and bodies of water in the vicinity, including locations and use;(H) meteorological data;(I) maps, including United States Geological Survey topographic quadrangle, hydrologic, and geologic;(J) area resources (e.g., local land use, locations of nearby residences, etc.);(K) site performance history, including erosion, flooding, subsidence, etc.; and(L) a summary of any past disposals and any observed effects;(6) a description of the proposed design and construction of the waste disposal trench or landfill;(7) a description of the proposed design and construction of the final cover and of proposed closure procedures;(8) information on the depth of waste burial and proposed procedures for emplacement of waste;(9) proposed inspection, maintenance, and stabilization procedures;(10) the applicant's radiological impact assessment consisting of modeling of radionuclide releases to site-specific critical exposure pathways and the projection of potential radiological doses to an individual on site and to a member of the public off site;(11) proposed radiation safety procedures during operations and closure;(12) a description of proposed radiological monitoring of the site;(13) the organizational structure of the applicant, a description of lines of authority and assignment of responsibilities, and technical qualifications of personnel responsible for radiation safety functions;(14) information on the applicant's proposed methods of restricting access to the site (e.g., fencing) and proposed permanent site markers;(15) proposed recordkeeping;(16) information on land ownership and any covenants or restrictions on land use;(17) the applicant's justification for the proposed disposal method;(18) an evaluation of other disposal alternatives, including disposal of the radioactive material at a licensed disposal facility; and(19) financial assurance for decommissioning as provided for in §336.619 of this title (relating to Financial Assurance for Decommissioning).(b) Content of application for renewal of license.(1) An applicant for renewal of a license authorizing disposal of radioactive material shall submit information on:(A) the current status of disposal operations, including the current status of use or closure of disposal trenches or landfills;(B) as-built construction of disposal trenches or landfills and any final covers;(C) volumes of radioactive material disposed of to date;(D) the concentration and total activity of each radionuclide in the waste disposed of;(E) the frequency of burials;(F) the results of any radiological monitoring performed at the site;(G) any changes in or additions to the procedures or information contained in previous applications;(H) financial assurance for decommissioning as provided for in §336.619 of this title; and(I) an evaluation of the alternative of disposing of the radioactive material at a licensed disposal facility.(2) The executive director may request additional information, such as that required by subsection (a) of this section, if that information was not previously provided for the site or is not current.(c) Performance objectives. The applicant's submittal shall include sufficient information to enable the executive director to assess the potential hazard to public health and safety and to determine whether the disposal site will have a significant impact on the environment. General criteria and performance objectives which the executive director shall apply in the evaluation of a proposed disposal site include the following:(1) Radiation exposure and release of radioactive materials from a disposal site shall be maintained as low as is reasonably achievable. Reasonable assurance must be provided that the potential dose to an individual on or near the site will be within acceptable limits. The estimated committed effective dose equivalent resulting from a radiological assessment of a site will usually be the determining factor in the granting of authorization for a disposal site. If the projected dose to a member of the public exceeds 25 millirems per year, the executive director shall consider other factors in determining whether to grant authorization for the site, including, but not limited to, the use of institutional controls to restrict access for a specified period of time.(2) The location and characteristics of a site shall preclude potential offsite migration or transport of radioactive materials or ready access to critical exposure pathways.(3) The general topography of the proposed disposal site must be compatible with the proposed waste burial. As an example, surface features shall direct surface water drainage away from the disposal site. Wastes shall not be buried in locations which, once covered, would tend to collect surface water. The characteristics of the site shall minimize to the extent practicable the potential for erosion and contact of percolating or standing water with wastes.(4) Water-bearing strata shall be a minimum of 10 feet below the depth at which waste will be buried.(5) Waste shall be emplaced in a manner that minimizes the void spaces between packages and permits the void spaces to be filled.(6) Void spaces between waste packages shall be filled with earth or other material to reduce future subsidence within the fill.(7) Covers shall be designed to minimize water infiltration to the extent practicable, to direct percolating or surface water away from the disposed waste, and to resist degradation by surface geologic processes and biotic activity.(8) In general, a disposal site for which authorization is requested under this subchapter shall be located, designed, operated, and closed so that long-term isolation and custodial care for long-term stability would not be required beyond the time the licensee can reasonably be expected to occupy the site. If a proposed site does not meet this objective, requirements for long-term care shall be evaluated.(9) The location of a disposal site shall be such that it is compatible with the uses of surrounding environs (both the applicant's and adjacent properties).</content><note type="source"><p>Source Note: The provisions of this §336.513 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 3, 1998, 23 TexReg 8837; amended to be effective September 14, 2000, 25 TexReg 8989.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c336/scG"><num value="G">SUBCHAPTER G</num><heading>DECOMMISSIONING STANDARDS</heading><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.601"><num value="336.601">§336.601</num><heading>Applicability</heading><content>(a) The criteria in this subchapter apply to the decommissioning of facilities regulated under Subchapter F of this chapter (relating to Licensing of Alternative Methods of Disposal of Radioactive Material), the inactive disposal sites regulated under this subchapter, the ancillary surface facilities that support low-level radioactive waste disposal activities at facilities licensed under Subchapter H of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste) , naturally occurring radioactive material waste disposal facilities licensed under Subchapter K of this chapter (relating to Commercial Disposal of Naturally Occurring Radioactive Material Waste from Public Water Systems), and to radioactive substances processing and storage facilities licensed under Subchapter M of this chapter (relating to Licensing of Radioactive Substances Processing and Storage Facilities).(b) This subchapter also establishes the criteria under which a facility may be licensed for decommissioning.(c) After a site has been decommissioned and the license terminated in accordance with the criteria in this subchapter, the commission may require additional cleanup only if, based on new information, it determines that the criteria of this subchapter have not been met and residual radioactivity remaining at the site could result in significant threat to public health and safety.(d) When calculating the total effective dose equivalent (TEDE) to the average member of the critical group, the licensee shall determine the peak annual TEDE expected within the first 1,000 years after decommissioning.</content><note type="source"><p>Source Note: The provisions of this §336.601 adopted to be effective September 3, 1998, 23 TexReg 8837; amended to be effective September 14, 2000, 25 TexReg 8989; amended to be effective July 21, 2005, 30 TexReg 4127; amended to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.602"><num value="336.602">§336.602</num><heading>Definitions</heading><content>General agency terms used in several chapters are defined in Chapter 3 of this title (relating to Definitions). Terms used in this chapter are defined in §336.2 of this title (relating to Definitions). Additional terms used in this subchapter have the following definitions.(1) Control and maintenance - Only for licenses that have been terminated under restricted conditions, control and maintenance is the period of time, and the activities that occur within that period of time, that begins upon license termination and continues until the level of contamination at the site reaches the level required under §336.603(a) of this title (relating to Radiological Criteria for Unrestricted Use) for unrestricted use without institutional controls.(2) Inactive disposal site - A site or facility that:(A) contains radioactive material disposed of below the surface, or soils or structures contaminated with radioactive material; and(B) no longer disposes or will dispose of, or accepts or will accept for the purpose of disposal, additional radioactive material.(3) Institutional control - Restrictions placed upon a facility or site that are:(A) proprietary institutional controls which are put in place by the property owner, such as deed restrictions;(B) governmental institutional controls, which are based on a government's sovereign or police powers, such as zoning, water well-use restrictions, and building permit requirements; and(C) physical controls such as fences, markers, earthen covers, and radiological monitoring and maintenance for those controls. Physical controls must be used in combination with some type of legal instrument.(4) Funding plan - A plan, equivalent to the decommissioning funding plan of 10 Code of Federal Regulations §30.35 (Financial Assurance and Recordkeeping for Decommissioning) and §40.36 (Financial Assurance and Recordkeeping for Decommissioning), submitted by the holder of an existing license before the development of a detailed decommissioning plan. The funding plan includes:(A) an initial cost estimate for decommissioning;(B) a description of the financial mechanism(s) utilized; and(C) a certification by the licensee that a signed original of the financial assurance mechanism for decommissioning was submitted to the executive director.</content><note type="source"><p>Source Note: The provisions of this §336.602 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.603"><num value="336.603">§336.603</num><heading>Radiological Criteria for Unrestricted Use</heading><content>(a) A site will be considered acceptable for unrestricted use if the residual radioactivity that is distinguishable from background radiation results in a total effective dose equivalent (TEDE) to an average member of the critical group that does not exceed 25 mrem (0.25 mSv) per year (excluding radium and its decay products), including that from groundwater sources of drinking water, and the residual radioactivity has been reduced to levels that are as low as reasonably achievable (ALARA). The concentration for radium in soil shall be equivalent to or below the limits set forth in §336.356(a) of this title (relating to Soil and Vegetation Contamination Limits).(b) Determination of the levels which are ALARA must take into account consideration of any detriments expected to potentially result from decontamination and waste disposal (e.g., deaths from transportation accidents).(c) The licensee shall conduct all necessary radiation surveys and modeling, and shall provide reports and documentation to demonstrate that the requirements for release for unrestricted used have been met.</content><note type="source"><p>Source Note: The provisions of this §336.603 adopted to be effective September 3, 1998, 23 TexReg 8837.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.605"><num value="336.605">§336.605</num><heading>Surface Contamination Limits for Facilities, Equipment, and Materials</heading><content>(a) Before vacating any facility or releasing any facility, equipment, or materials for unrestricted use, each licensee shall ensure that radioactive contamination has been removed to levels as low as is reasonably achievable.(b) No licensee may vacate a facility or release a facility, equipment, or materials for unrestricted use until radioactive surface contamination levels are below the limits specified in §336.364, Appendix G, of this title (relating to Acceptable Surface Contamination Levels). The licensee shall conduct radiation surveys and provide reports and documentation to demonstrate that the requirements for release have been met. The executive director may also require the licensee to provide other information as may be necessary to demonstrate that the facilities and equipment are suitable for release.(c) In addition to meeting the surface contamination limits of subsection (b) of this section, porous materials (e.g., concrete), which are to be released for unrestricted use, shall be evaluated to determine whether radioactive materials have penetrated to the interior of the material. If radioactive contamination has penetrated into the material, analysis of the average concentration, in picocuries per gram, shall be made. The material may be released for unrestricted use if the radionuclide concentrations do not exceed the limits specified for soil in §336.356(a) of this title (relating to Soil and Vegetation Contamination Limits) and §336.603 of this title (relating to Radiological Criteria for Unrestricted Use).</content><note type="source"><p>Source Note: The provisions of this §336.605 adopted to be effective September 3, 1998, 23 TexReg 8837.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.607"><num value="336.607">§336.607</num><heading>Criteria for License Termination under Restricted Conditions</heading><content>A site will be considered acceptable for license termination under restricted conditions if all of the following conditions are met:(1) The licensee can demonstrate that further reductions in residual radioactivity would result in net public or environmental harm or were not being made because the residual levels associated with restricted conditions are as low as reasonably achievable (ALARA). Determination of the levels which are ALARA must take into account consideration of any detriments expected to potentially result from decontamination and waste disposal (e.g. traffic accidents);(2) The licensee has made provisions for legally enforceable institutional controls that provide reasonable assurance that the total effective dose equivalent (TEDE) from residual radioactivity distinguishable from background to the average member of the critical group will not exceed 25 mrem (0.25mSv) per year;(3) The licensee has provided sufficient financial assurance to enable an independent third party, including a governmental custodian of a site, to assume and carry out responsibilities for any necessary control and maintenance of the site. Acceptable financial assurance mechanisms are those in Chapter 37, Subchapter S of this title (relating to Financial Assurance for Radioactive Material), or Chapter 37, Subchapter T of this title (relating to Financial Assurance for Near-Surface Land Disposal of Low- Level Radioactive Waste);(4) The licensee has submitted a decommissioning plan to the commission indicating the licensee's intent to decommission and specifying that the licensee intends to decommission by restricting use of the site. The licensee shall document in the decommissioning plan how the advice of individuals and institutions in the community who may be affected by the decommissioning has been sought and incorporated, as appropriate, following analysis of that advice.(A) Licensees proposing to decommission by restricting use of the site shall seek advice from affected parties regarding the following matters concerning the proposed decommissioning.(i) Whether provisions for institutional controls proposed by the licensee:(I) will provide reasonable assurance that the TEDE from residual radioactivity distinguishable from background to the average member of the critical group will not exceed 25 mrem (0.25 mSv) TEDE per year;(II) will be enforceable; and(III) will not impose undue burdens on the local community or other affected parties.(ii) Whether the licensee has provided sufficient financial assurance to enable an independent third party, including a governmental custodian of a site, to assume control and maintenance of the site.(B) In seeking advice on the issues identified in subparagraph (A) of this paragraph, the licensee shall provide for:(i) participation by representatives of a broad cross section of community interests who may be affected by the decommissioning;(ii) an opportunity for a comprehensive, collective discussion on the issues by the participants represented; and(iii) a publicly available summary of the results of all discussions, including a description of the individual viewpoints of the participants on the issues and the extent of agreement and disagreement among the participants on the issues; and(5) Residual radioactivity at the site has been reduced so that if the institution controls were no longer in effect, there is reasonable assurance that the TEDE from residual radioactivity distinguishable from background to the average member of the critical group is ALARA and would not exceed either:(A) 100 mrem (1 mSv) per year; or(B) 500 mrem (5 mSv) per year provided the licensee:(i) demonstrates that further reductions in residual radioactivity necessary to comply with the 100 mrem/y (1 mSv/y) value of subparagraph (A) of this paragraph are not technically achievable, would be prohibitively expensive, or would result in net public or environmental harm;(ii) makes provisions for durable institutional controls; and(iii) provides sufficient financial assurance to enable a responsible government entity or independent third party, including a governmental custodian of a site, both to carry out periodic rechecks of the site no less frequently than every five years to assure that the criteria of §336.603(a) of this title (relating to Radiological Criteria for Unrestricted Use) are met and to assume and carry out responsibilities for any necessary control and maintenance of those controls. Acceptable financial assurance mechanisms are those in Chapter 37, Subchapter S of this title, or Chapter 37, Subchapter T of this title.</content><note type="source"><p>Source Note: The provisions of this §336.607 adopted to be effective September 3, 1998, 23 TexReg 8837; amended to be effective March 21, 2000, 25 TexReg 2397; amended to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.609"><num value="336.609">§336.609</num><heading>Alternate Criteria for License Termination</heading><content>(a) The commission may terminate a license using alternate criteria greater than the dose criterion of §336.603 of this title (relating to Radiological Criteria for Unrestricted Use) and §336.607(2) and (4)(A)(i)(I) of this title (relating to Criteria for License Termination under Restricted Conditions), if the licensee:(1) provides assurance that public health and safety would continue to be protected, and that it is unlikely that the dose from all manmade sources combined, other than medical, would be more than the 1 mSv/y (100 mrem/y) limit of §§336.314-336.315 of this title (relating to Compliance with Dose Limits for Individual Members of the Public and General Requirements for Surveys and Monitoring, respectively), by submitting an analysis of possible sources of exposure;(2) has employed, to the extent practical, restrictions on site use according to the provisions of §336.607 of this title in minimizing exposures at the site;(3) reduces doses to ALARA levels, taking into consideration any detriments such as traffic accidents expected to potentially result from decontamination and waste disposal; and(4) has submitted a decommissioning plan to the commission indicating the licensee's intent to decommission the facility, and specifying that the licensee proposes to decommission by use of alternate criteria. The licensee shall document in the decommissioning plan how the advice of individuals and institutions in the community who may be affected by the decommissioning has been sought and addressed, as appropriate, following analysis of that advice. In seeking such advice, the licensee shall provide for:(A) participation by representatives of a broad cross section of community interests who may be affected by the decommissioning;(B) an opportunity for a comprehensive, collective discussion on the issues by the participants represented; and(C) a publicly available summary of the results of all discussions, including a description of the individual viewpoints of the participants on the issues and the extent of agreement and disagreement among the participants on the issues.(b) The use of alternate criteria to terminate a license requires approval of the commission after consideration of the executive director's recommendations that will address any comments provided by the Environmental Protection Agency and any other public comments submitted under §336.611 of this title (relating to Public Notification and Public Participation).</content><note type="source"><p>Source Note: The provisions of this §336.609 adopted to be effective September 3, 1998, 23 TexReg 8837.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.611"><num value="336.611">§336.611</num><heading>Public Notification and Public Participation</heading><content>Upon the receipt of a decommissioning plan from the licensee, or a proposal by the licensee for release of a site under §336.607 of this title (relating to Criteria for License Termination under Restricted Conditions) or §336.609 of this title (relating to Alternate Criteria for License Termination), or whenever the commission deems notice to be in the public interest, the commission shall publish notice in accordance with §39.713 of this title (relating to Public Notification and Public Participation).</content><note type="source"><p>Source Note: The provisions of this §336.611 adopted to be effective September 3, 1998, 23 TexReg 8837; amended to be effective August 30, 2001, 26 TexReg 6309.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.613"><num value="336.613">§336.613</num><heading>Additional Requirements</heading><content>(a) The requirements of this section do not apply to licenses issued under Subchapter H of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste).(b) A decommissioning plan shall be submitted with the license application required by §336.615 of this title (relating to Inactive Disposal Sites) and §336.1211 of this title (relating to Filing Application for a Special License). Holders of licenses of inactive disposal sites shall submit a decommissioning plan with the renewal application. Holders of licenses of active disposal sites shall submit a decommissioning plan no later than the date specified in §336.625(e)(2) of this title (relating to Expiration and Termination of Licenses).(c) The executive director may approve an alternate schedule for submittal of a decommissioning plan required under §336.625(e)(2) of this title if the executive director determines that:(1) the alternative schedule is necessary for the effective conduct of decommissioning operations; and(2) presents no undue risk from radiation to the public health and safety and is otherwise in the public interest.(d) A licensee shall request a license amendment to amend a decommissioning plan if revised procedures could increase potential health and safety impacts to workers or to the public. Examples of procedures that require a license amendment include, but are not limited to:(1) procedures that involve techniques not applied routinely during cleanup or maintenance operations;(2) workers entering areas not normally occupied where surface contamination and radiation levels are significantly higher than routinely encountered during operation;(3) procedures that could result in significantly greater airborne concentrations of radioactive materials than are present during operation; or(4) procedures that could result in significantly greater releases of radioactive material to the environment than those associated with operation.(e) Procedures with potential health and safety impacts, such as those listed in subsection (d) of this section, may not be carried out prior to approval by the commission of the decommissioning plan.(f) The proposed decommissioning plan for the site or separate building or outdoor area shall include:(1) a description of the conditions of the site or separate building or outdoor area sufficient to evaluate the acceptability of the plan;(2) a description of planned decommissioning activities;(3) a description of methods used to ensure protection of workers and the environment against radiation hazards during decommissioning;(4) a description of the planned final radiation survey;(5) an updated detailed cost estimate for decommissioning, comparison of that estimate with present funds set aside for decommissioning, and a plan for assuring the availability of adequate funds for completion of decommissioning;(6) for decommissioning plans calling for completion of decommissioning later than 24 months after plan approval, a justification for the delay based on the criteria in subsection (h) of this section; and(7) a description of the quality assurance/quality control program.(g) The proposed decommissioning plan may be approved by the commission by license amendment if the information demonstrates that the decommissioning will be completed as soon as practicable and that the health and safety of workers and the public will be protected.(h) Except as provided in subsection (j) of this section, the licensee shall complete decommissioning of the site or separate building or outdoor area as soon as practicable but no later than 24 months following the initiation of decommissioning.(i) Except as provided in subsection (j) of this section, when decommissioning involves the entire site, the licensee shall request license termination as the final step in decommissioning, which shall be as soon as practicable but no later than 24 months following the initiation of decommissioning.(j) The commission may approve by license amendment a request for an alternate schedule for completion of decommissioning of the site or separate building or outdoor area, and license termination if appropriate, if the commission determines that the alternative is warranted by consideration of the following:(1) whether it is technically feasible to complete decommissioning within the allotted 24-month period;(2) whether sufficient waste disposal capacity is available to allow completion of decommissioning within the allotted 24-month period;(3) whether a significant volume reduction in wastes requiring disposal will be achieved by allowing short-lived radionuclides to decay;(4) whether a significant reduction in radiation exposure to workers can be achieved by allowing short-lived radionuclides to decay; and(5) other site-specific factors which the commission may consider appropriate on a case-by-case basis, such as the regulatory requirements of other government agencies, lawsuits, groundwater treatment activities, monitored natural groundwater restoration, actions that could result in more environmental harm than deferred cleanup, and other factors beyond the control of the licensee.(k) As the final steps in decommissioning, the licensee shall:(1) certify the disposition of all licensed material, including accumulated wastes;(2) conduct a radiation survey of the premises where the licensed activities were carried out and submit a report of the results of this survey unless the licensee demonstrates that the premises are suitable for release in some other commission approved manner. The licensee shall, as appropriate:(A) report levels of gamma radiation in units of microroentgens (millisieverts) per hour at 1 meter from surfaces, and report levels of radioactivity (removable and fixed), including alpha and beta, in units of disintegrations per minute or microcuries (megabecquerels) per 100 square centimeters for surfaces, microcuries (megabecquerels) per milliliter for water, and picocuries (becquerels) per gram for solids such as soils or concrete; and(B) specify the survey instrument(s) used and certify that each instrument is properly calibrated and tested; and(3) submit a request for license termination, which includes, but is not limited to, the information required by paragraphs (1) and (2) of this subsection.(l) The executive director may require the licensee to provide any other information necessary to demonstrate that the facilities and land are suitable for release.</content><note type="source"><p>Source Note: The provisions of this §336.613 adopted to be effective September 3, 1998, 23 TexReg 8837; amended to be effective September 14, 2000, 25 TexReg 8989; amended to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.615"><num value="336.615">§336.615</num><heading>Inactive Disposal Sites</heading><content>Any person who owns, operates, controls, or possesses an inactive disposal site and who does not hold a current radioactive material license for the inactive disposal site shall apply for a license to decommission by January 1, 2000. This subchapter does not apply to diffuse naturally occurring radioactive material (NORM) waste having concentrations of radium-226 or radium-228 of less than 2,000 pCi/g. Any decommissioning performed to fulfill this provision shall be performed by an individual who is qualified and licensed to perform the activities, ensuring that all appropriate radiation protection standards for workers and the public are met, including the maintenance of records.(1) If the site meets the requirements for unrestricted use of §336.603 of this title, (relating to Radiological Criteria for Unrestricted Use), the owner shall submit to the executive director the information required by §336.603(c) of this title before January 1, 2000. Once the executive director verifies that the criteria have been met, the executive director will certify in writing that the owner is in compliance with the regulations and will not require any further cleanup, unless there is new evidence that the decommissioning standards for unrestricted use were not met and that residual radioactivity remaining at the site could result in significant threat to public health and safety.(2) If a site is decommissioned for unrestricted use under §336.603 of this title before January 1, 2000, a license is not required. If decommissioning is completed before January 1, 2000, proof of decommissioning must be submitted to the agency before January 1, 2000, or the owner shall submit an application for license by that date. Once the executive director verifies that the criteria have been met, the executive director will certify in writing that the owner is in compliance with the regulations and will not require any further cleanup, unless there is new evidence that the decommissioning standards for unrestricted use were not met and that residual radioactivity remaining at the site could result in significant threat to public health and safety.(3) If a site does not meet the requirements for unrestricted use and the owner does not decommission before January 1, 2000, or if the owner plans to decommission under §336.607 of this title (relating to Criteria for License Termination under Restricted Conditions) or §336.609 of this title (relating to Alternate Criteria for License Termination), the owner shall apply for a license to decommission by January 1, 2000. The applicant shall provide the information required by this subchapter using a form provided by the agency.</content><note type="source"><p>Source Note: The provisions of this §336.615 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.617"><num value="336.617">§336.617</num><heading>Technical Requirements for Inactive Disposal Sites</heading><content>(a) Content of license application. An applicant for a license to authorize possession of disposed radioactive material and subsequent decommissioning of an inactive disposal site shall submit the information required in Chapter 305 of this title (relating to Consolidated Permits), and the following, using the application form provided by the agency:(1) information on the concentration and total activity of each radionuclide disposed of, packaging of the wastes, the characteristics of the disposal site (e.g., geological, hydrological, and topographical), as-built disposal trench or landfill construction, final cover construction, and depth of burial of wastes. This information shall be as complete and accurate as possible based on the full extent of information available to the applicant about the previous disposal activities;(2) a description of any radiological monitoring performed at the site and the resulting data;(3) the technical qualifications and identity of personnel responsible for radiation safety functions at the site;(4) a description of the methods of restricting access to the site (e.g., fencing) and any permanent site markers;(5) information on land ownership and any covenants on land use imposed by recorded title documents;(6) a decommissioning plan that meets the standards in this subchapter including an evaluation of the alternative of disposing of the radioactive material at a licensed disposal facility;(7) information regarding financial assurance for decommissioning as provided for in §336.619 of this title (relating to Financial Assurance for Decommissioning); and(8) for license applications other than renewals, a description of how facility design and procedures for operation minimize, to the extent practicable, contamination of the facility and the environment, facilitate eventual decommissioning, and minimize, to the extent practicable, the generation of radioactive wastes.(b) Content of application for renewal of license.(1) An applicant for renewal of a license authorizing possession of disposed radioactive material in an inactive disposal site or to decommission an inactive disposal site shall submit information using the application form provided by the agency on:(A) the current conditions of the site (e.g., site stability and any maintenance performed at the site);(B) any radiological monitoring performed at the site by the licensee and the resulting data;(C) the methods of restricting access to the site;(D) any changes in or additions to the procedures or information contained in previous applications;(E) the technical qualifications and identity of personnel responsible for radiation safety functions at the site;(F) a decommissioning plan that meets the standards in this subchapter, if not previously submitted, including an evaluation of the alternative of disposing of the radioactive material at a licensed disposal facility; and(G) financial assurance for decommissioning as provided for in §336.619 of this title.(2) The executive director may request additional information, such as that required by subsection (a) of this section, if this information was not previously provided for the site or is not current.(c) Performance objectives. The applicant's submittal shall include sufficient information to enable the executive director to assess the potential hazard to public health and safety and to determine whether the disposal site will have a significant impact on the environment. The executive director shall evaluate existing inactive disposal sites on a case-by-case basis and shall consider the following general criteria and performance objectives in making the evaluation.(1) Radiation exposure and release of radioactive materials from a disposal site shall be maintained as low as is reasonably achievable. Reasonable assurance must be provided that the potential dose to an individual on or near the site will be within acceptable limits. The estimated committed effective dose equivalent resulting from a radiological assessment of a site will usually be the determining factor in the granting of authorization for a disposal site. If the projected dose to a member of the public exceeds 25 millirems per year, the executive director shall consider other factors in determining whether to grant authorization for the site, including, but not limited to, the use of institutional controls to restrict access for a specified period of time.(2) The location and characteristics of a site shall be such as to preclude potential offsite migration or transport of radioactive materials or ready access to critical exposure pathways.(3) The general topography of the disposal site shall be compatible with its use for waste burial. As an example, surface features shall direct surface water drainage away from the disposal site. Wastes must not be buried in locations which, once covered, would tend to collect surface water. The characteristics of the site shall minimize, to the extent practicable, the potential for erosion and contact of percolating or standing water with wastes.(4) Water-bearing strata shall be a minimum of ten feet below the depth at which waste is buried.(5) Waste shall be emplaced in a manner that minimizes the void spaces between packages and permits the void spaces to be filled.(6) Void spaces between waste packages shall be filled with earth or other material to reduce future subsidence within the fill.(7) Cover design shall minimize water infiltration to the extent practicable, direct percolating or surface water away from the disposed waste, and resist degradation by surface geologic processes and biotic activity.(8) In general, a site authorized under this subchapter shall be located, designed, operated, and closed so that long-term isolation and custodial care for long-term stability would not be required beyond the time the licensee can reasonably be expected to occupy the site. If a site does not meet this objective, requirements for long-term care shall be evaluated.(9) The location of a disposal site shall be compatible with the uses of surrounding environs (both the applicant's and adjacent properties).</content><note type="source"><p>Source Note: The provisions of this §336.617 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.619"><num value="336.619">§336.619</num><heading>Financial Assurance for Decommissioning</heading><content>(a) A financial assurance mechanism or combination of mechanisms in accordance with Chapter 37 of this title (relating to Financial Assurance) is required for all entities currently licensed or proposed to be licensed, except that licenses and applicants under Subchapter M are subject to the financial assurance requirements of §336.1235 of this title (relating to Financial Assurance for Storage and Processing Facilities).(b) Applicants for a new license to decommission an inactive disposal site and applicants for a license under Subchapters K of this chapter (relating to Commercial Disposal of Naturally Occurring Radioactive Material Waste from Public Water Systems) shall submit with the application a signed statement regarding how the applicant will provide financial assurance for decommissioning using one or more of the mechanisms specified in Chapter 37 of this title. The amount of financial assurance shall be based upon the detailed cost estimate included in the decommissioning plan submitted with the application.(c) Holders of licenses for inactive disposal sites issued before January 1, 1998 shall submit a funding plan before January 1, 1998. Each funding plan must contain:(1) a cost estimate for decommissioning;(A) Each holder of a license authorizing the disposal of unsealed radioactive material with a half-life greater than 120 days and in quantities exceeding 105 times the applicable quantities set forth in §336.627 of this title (relating to Radionuclide Quantities for Use in Determining Financial Assurance for Decommissioning) or when a combination of isotopes is involved if R divided by 105 is greater than 1 (unity rule), where R is defined as the sum of the ratios of the quantity of each isotope to the applicable value in §336.627 of this title, shall submit a certification of financial assurance for decommissioning in an amount at least equal to $750,000, in accordance with the criteria set forth in this subchapter and Chapter 37 of this title; or(B) Each holder of a license authorizing disposal of radioactive material with a half-life greater than 120 days shall provide certification of financial assurance for decommissioning based on the quantity of material as follows:(i) $750,000--greater than 104 but less than or equal to 105 times the applicable quantities in §336.627 of this title, in unsealed form. (For a combination of isotopes, if R, as defined in subparagraph (A) of this paragraph, divided by 104 is greater than 1 but R divided by 105 is less than or equal to 1.); or(ii) $150,000--greater than 103 but less than or equal to 104 times the applicable quantities in §336.627 of this title in unsealed form. (For a combination of isotopes, if R, as defined in subparagraph (A) of this paragraph, divided by 103 is greater than 1 but R divided by 104 is less than or equal to 1.).(C) Notwithstanding the requirements of subparagraphs (A) and (B) of this paragraph:(i) each holder for a license authorizing the disposal of more than 100 millicuries of source material in a readily dispersible form shall submit certification that financial assurance has been provided in the amount of $750,000;(ii) each holder for a license authorizing the disposal of quantities of source material greater than ten millicuries but less than or equal to 100 millicuries in a readily dispersible form shall submit certification that financial assurance has been provided in the amount of $150,000;(2) a description of the financial assurance mechanism of assuring funds for decommissioning as specified in Chapter 37 of this title, including means for adjusting cost estimates and associated funding levels annually over the life of the facility; and(3) a certification by the licensee that a signed original of the financial assurance mechanism for decommissioning, in accordance with criteria set forth in this section and Chapter 37 of this title, has been submitted to and approved by the executive director in the amount specified in paragraph (1) of this subsection.(d) Holders of existing licenses for inactive disposal sites shall, as part of the license renewal process, submit a signed statement adjusting the amount of financial assurance based upon the detailed cost estimate included in the decommissioning plan submitted with the renewal application. The adjusted amount of financial assurance for decommissioning shall be effective upon license renewal.(e) Holders of licenses for active disposal sites shall submit a signed statement adjusting the amount of financial assurance based upon the detailed cost estimate included in the decommissioning plan submitted no later than the date specified in §336.625(e) of this title (relating to Expiration and Termination of Licenses).</content><note type="source"><p>Source Note: The provisions of this §336.619 adopted to be effective September 14, 2000, 25 TexReg 8989; amended to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.621"><num value="336.621">§336.621</num><heading>Recordkeeping for Decommissioning</heading><content>Each person licensed under this subchapter shall keep records of information important to the safe and effective decommissioning of the facility in an identified location until the license is terminated by the commission. If records of relevant information are kept for other purposes, reference to these records and their locations may be used. Information important to decommissioning consists of:(1) records of spills or other unusual occurrences involving the spread of contamination in and around the disposal facility, equipment, or site. These records may be limited to instances when contamination remains after any cleanup procedures or when there is reasonable likelihood that contaminants may have spread to inaccessible areas, as in the case of possible seepage into porous materials such as concrete. These records must include any known information on identification of involved nuclides, quantities, forms, and concentrations;(2) as-built drawings and modifications of structures and equipment in restricted areas where radioactive materials are disposed of and of locations of possible inaccessible contamination (e.g., buried pipes) that may be subject to contamination. If required drawings are referenced, each relevant document need not be indexed individually. If drawings are not available, the licensee shall substitute appropriate records of available information concerning these areas and locations;(3) except for areas containing only radioactive materials having half-lives of less than 65 days, a list contained in a single document and updated every two years of the following:(A) all areas designated as restricted areas, as defined in §336.2 of this title (relating to Definitions), and all areas formerly designated as restricted areas under rules in effect before January 1, 1994;(B) all areas outside of restricted areas that require documentation under paragraph (1) of this section;(C) all areas outside of restricted areas where current and previous wastes have been buried as documented under §336.338 of this title (relating to General Recordkeeping Requirements for Disposal); and(D) all areas outside of restricted areas which contain material such that, if the license expired, the licensee must be required to decontaminate the area to unrestricted release levels; and(4) records of the cost estimate performed for the funding plan or of the amount certified for decommissioning, and records of the financial assurance mechanism used for assuring funds.</content><note type="source"><p>Source Note: The provisions of this §336.621 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.623"><num value="336.623">§336.623</num><heading>Financial Assurance for Control and Maintenance</heading><content>(a) An applicant or licensee required to demonstrate financial assurance for control and maintenance of a site shall maintain financial assurance for control and maintenance upon license issuance and during the decommissioning period. The applicant or licensee shall provide sufficient financial assurance to enable an independent third party, including a governmental custodian of a site, to assume and carry out responsibilities for any necessary control and maintenance of the site. The financial assurance mechanism(s) for control and maintenance shall comply with Chapter 37 of this title (relating to Financial Assurance) including increasing annually the financial assurance amount for inflation or whenever modifications to the control and maintenance activities or changes to the amount being demonstrated causes the amounts for control and maintenance to increase.(b) Prior to license termination, the licensee shall deposit a sum of cash acceptable to the executive director into the Texas Treasury Safekeeping Control and Maintenance account to assume and carry out responsibilities for any necessary surveillance, monitoring, control, maintenance, and other care of the decommissioned disposal site on a continual basis during the institutional control period. Upon receipt of the deposit, the executive director shall release the existing financial assurance mechanism(s) for control and maintenance. If a deposit is not made into the Control and Maintenance account, the executive director shall draw on the existing financial assurance mechanism(s) and deposit the cash into the Texas Safekeeping Treasury Control and Maintenance account.</content><note type="source"><p>Source Note: The provisions of this §336.623 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.625"><num value="336.625">§336.625</num><heading>Expiration and Termination of Licenses</heading><content>(a) Each license expires at the end of the day on the expiration date stated in the license unless the licensee has filed an application for renewal not less than 30 days before the expiration date stated in the existing license. If an application for renewal in proper form has been filed at least 30 days before the expiration date stated in the existing license, the existing license shall not expire until the application has been finally determined by the commission. For the purposes of this section, "proper form" shall mean that the application includes the information required by §336.617 of this title (relating to Technical Requirements for Inactive Disposal Sites) or §336.513 of this title (relating to Technical Requirements for Active Disposal Sites). The existing license expires at the end of the day on which the commission makes a final determination to deny the renewal application or, if the determination states an expiration date, the expiration date stated in the determination.(b) Each license revoked by the commission expires at the end of the day on the date of the commission's final determination to revoke the license, or on the expiration date stated in the determination, or as otherwise provided by commission order.(c) Each license continues in effect, beyond the expiration date if necessary, with respect to possession of source material, by-product material, or other radioactive material until the commission notifies the licensee in writing that the license is terminated. During this time, the licensee shall:(1) limit actions involving source material, by-product material, or other radioactive material to those related to decommissioning; and(2) continue to control entry to restricted areas until they are suitable for release in accordance with commission requirements.(d) Within 60 days of the occurrence of any of the following, each licensee of an active disposal site shall provide written notification to the executive director:(1) the license has expired under subsection (a) or (b) of this section; or(2) the licensee has decided to permanently cease principal activities at the entire site or in any separate building or outdoor area that contains residual radioactivity such that the building or outdoor area is unsuitable for unrestricted release in accordance with commission requirements; or(3) no principal activities under the license have been conducted for a period of 24 months; or(4) no principal activities have been conducted for a period of 24 months in any separate building or outdoor area that contains residual radioactivity such that the building or outdoor area is unsuitable for release in accordance with commission requirements.(e) The licensee of an active disposal site shall either:(1) within 60 days of the occurrence for which notification is required by subsection (d) of this section, begin decommissioning its site or any separate building or outdoor area that contains residual radioactivity, according to an approved decommissioning plan, so that the building or outdoor area is suitable for release in accordance with commission requirements; or(2) if no decommissioning plan has been submitted, submit a decommissioning plan to the executive director, including a signed statement adjusting the amount of financial assurance based upon the detailed cost estimate included in the decommissioning plan, within 12 months of the notification required by subsection (d) of this section and request an amendment of the license to incorporate the plan into the license; and(3) begin decommissioning within 60 days of the approval of that plan by the commission.(f) The licensee of an inactive disposal site licensed under §336.615 of this title (relating to Inactive Disposal Sites), shall provide notice of and begin decommissioning within 90 days of license renewal. The owner or operator of an unlicensed inactive disposal site must apply for a license to decommission the site and begin decommissioning within 90 days of license approval.(g) All licensees shall follow a commission-approved closure plan for decontamination, decommissioning, restoration, and reclamation of buildings and the site.(1) Coincident with the notification required by subsections (d) or (f) of this section, the licensee shall continue to maintain in effect all decommissioning financial assurance until the license is terminated by the commission.(2) The amount of the financial assurance must be increased, or may be decreased, as appropriate, to cover the detailed cost estimate for decommissioning established under §336.613(f)(5) of this title (relating to Additional Requirements).(3) Any licensee who has not provided financial assurance to cover the detailed cost estimate submitted with the decommissioning plan shall do so on or before January 1, 1998.(4) Following approval of the decommissioning plan, with the approval of the executive director, a licensee may reduce the amount of the financial assurance as decommissioning proceeds and radiological contamination is reduced at the site.(h) The executive director may grant in writing a request to extend the time periods established in subsections (d), (e), or (f) of this section, or to delay or postpone the decommissioning process, if the executive director determines that this relief is not detrimental to the public health and safety and is otherwise in the public interest. The request must be submitted in writing no later than 30 days before notification under subsection (d) or (f) of this section. The schedule for decommissioning set forth in subsection (e) or (f) of this section may not commence until the executive director has made a determination on the request.(i) Licenses, including expired licenses, will be terminated by the commission by written notice to the licensee when the executive director determines that:(1) source material, by-product material, and other radioactive material has been properly disposed;(2) reasonable effort has been made to eliminate residual radioactive contamination, if present;(3) the site is suitable for release;(A) a radiation survey has been performed which demonstrates that the premises are suitable for release in accordance with commission requirements; or(B) other information submitted by the licensee is sufficient to demonstrate that the premises are suitable for release in accordance with commission requirements;(4) the licensee has paid any outstanding fees required by Subchapter B of this chapter (relating to Radioactive Substance Fees) and has resolved any outstanding notice(s) of violation issued to the licensee; and(5) the licensee has complied with all other applicable decommissioning criteria required by this subchapter.(j) A licensee may request that a subsite or a portion of a licensed area be released for unrestricted use before full license termination as long as release of the area of concern will not adversely impact the remaining unaffected areas and will not be recontaminated by ongoing authorized activities. When the licensee is confident that the area of concern will be acceptable to the state for release for unrestricted use, a written request for release for unrestricted use and agency confirmation of close-out work performed must be submitted to the executive director. The request should include a comprehensive report, accompanied by survey and sample results which show contamination is less than the limits specified in §336.603 of this title (relating to Radiological Criteria for Unrestricted Use), and an explanation of how ongoing authorized activities will not adversely affect the area proposed to be released. Upon confirmation by the executive director that the area of concern is indeed releasable for unrestricted use, the licensee may apply for a license amendment, if required.</content><note type="source"><p>Source Note: The provisions of this §336.625 adopted to be effective September 14, 2000, 25 TexReg 8989; amended to be effective December 11, 2024, 49 TexReg 10003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scG/s336.627"><num value="336.627">§336.627</num><heading>Appendix A. Radionuclide Quantities for Use in Determining Financial Assurance for Decommissioning</heading><content>The following table is to be used in the calculation of financial assurance for decommissioning.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.627 adopted to be effective September 14, 2000, 25 TexReg 8989.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c336/scH"><num value="H">SUBCHAPTER H</num><heading>LICENSING REQUIREMENTS FOR NEAR-SURFACE LAND DISPOSAL OF LOW-LEVEL RADIOACTIVE WASTE</heading><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.701"><num value="336.701">§336.701</num><heading>Scope and General Provisions</heading><content>(a) This subchapter establishes the procedures, criteria, and terms and conditions upon which the commission issues a license for the near-surface land disposal of low-level radioactive wastes and accelerator-produced radioactive material received from other persons. The rules in this subchapter apply to disposal of low-level radioactive waste and accelerator-produced radioactive material as defined in §336.2 of this title (relating to Definitions). For the purpose of this subchapter, the term "low-level radioactive waste" includes accelerator-produced radioactive material. If there is a conflict between the rules of the commission and the rules of this subchapter, the rules of this subchapter shall prevail. No person shall engage in disposal of low-level radioactive waste received from other persons except as authorized in a specific license issued under this subchapter. A licensee under this subchapter shall conduct processing of low-level radioactive waste received for disposal at the licensed site, incidental to the disposal of that waste, in accordance with provisions of the commission license which authorizes the disposal.(b) A licensee authorized to dispose of low-level radioactive waste under the rules in this subchapter shall not accept for disposal:(1) high-level radioactive waste as defined in 10 Code of Federal Regulations (CFR) §60.2 as amended through October 27, 1988 (53 FR 43421) (Definitions - high-level radioactive wastes in geologic repositories);(2) by-product material as defined in §336.2(20)(B) of this title;(3) spent or irradiated nuclear fuel;(4) waste that is not generally acceptable for near-surface disposal as specified in §336.362 of this title (relating to Appendix E. Classification and Characteristics of Low-Level Radioactive Waste); or(5) waste that exceeds Class C limitations as specified in §336.362 of this title.(c) In addition to the requirements of this subchapter, all licensees, unless otherwise specified, are subject to the requirements of Subchapters A - E and G of this chapter (relating to General Provisions; Radioactive Substance Fees; General Disposal Requirements; Standards for Protection Against Radiation; Notices, Instructions, and Reports to Workers and Inspections; and Decommissioning Standards). For Subchapter H licensees, the decommissioning and license termination criteria in Subchapter G of this chapter applies only to the ancillary surface facilities.(d) On-site disposal of low-level radioactive waste at any site authorized under §336.501(b) of this title (relating to Scope and General Provisions), is not subject to licensing under this subchapter.(e) Shipment and transportation of low-level radioactive waste to a licensed land disposal facility in Texas is subject to applicable rules of the Texas Department of Health, United States Department of Transportation, and United States Nuclear Regulatory Commission. Each shipment of low-level radioactive waste to a licensed land disposal facility in Texas is subject to inspection by the Texas Department of Health before shipment.</content><note type="source"><p>Source Note: The provisions of this §336.701 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 3, 1998, 23 TexReg 8837; amended to be effective September 14, 2000, 25 TexReg 9012; amended to be effective January 8, 2004, 29 TexReg 150; amended to be effective December 11, 2024, 49 TexReg 10003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.702"><num value="336.702">§336.702</num><heading>Definitions</heading><content>Terms used in this subchapter are defined in §336.2 of this title (relating to Definitions). Additional terms used in this subchapter have the following definitions.(1) Active maintenance--Any significant remedial activity needed during the period of institutional control to maintain a reasonable assurance that the performance objectives in §336.724 of this title (relating to Protection of the General Population from Releases of Radioactivity) and §336.725 of this title (relating to Protection of Individuals from Inadvertent Intrusion) are met. Active maintenance includes ongoing activities such as the pumping and treatment of water from a disposal unit or one-time measures such as replacement of a disposal unit cover. Active maintenance does not include custodial activities such as repair of fencing, repair or replacement of monitoring equipment, revegetation, minor additions to soil cover, minor repair of disposal unit covers, and general disposal site upkeep such as mowing grass.(2) Buffer zone--A portion of the disposal site that is controlled by the licensee and that lies under the disposal units and between the disposal units and the boundary of the disposal site.(3) Chelating agent--A chemical or complex which causes an ion, usually a metal, to be joined in the same molecule by relatively stable bonding, e.g., amine polycarboxylic acids (e.g., EDTA, DTPA), hydroxycarboxylic acids, and polycarboxylic acids (e.g., citric acid, carbolic acid, and gluconic acid).(4) Commencement of major construction--Any clearing of land, excavation, or other substantial action that would adversely affect the environment of a land disposal facility. The term does not mean disposal site exploration, necessary roads for disposal site exploration, borings to determine foundation conditions, or other preconstruction monitoring or testing to establish background information related to the suitability of the disposal site or the protection of environmental values.(5) Commercial processing--The storage, extraction of materials, transfer, volume reduction, compaction, incineration, solidification, or other separation and preparation of radioactive substances from other persons for reuse or disposal, including any treatment or activity that renders the waste less hazardous, safer for transport, or amenable to recovery, storage, or disposal.(6) Commingling--Any process that combines radioactive substances from two or more generators resulting from the commercial processing of radioactive substances.(7) Containerized Class A waste--Class A low-level radioactive waste which presents a hazard because of high radiation levels. High radiation levels are radiation levels from an unshielded container that could result in an individual receiving a dose equivalent in excess of 0.1 rem (1 millisievert) in one hour at 30 centimeters from any surface of the container that the radiation penetrates.(8) Custodial agency--A government agency designated to act on behalf of the government owner of the disposal site.(9) Disposal site--That portion of a land disposal facility which is used for disposal of waste. It consists of disposal units and a buffer zone.(10) Disposal unit--A discrete portion of the disposal site into which waste is placed for disposal. For near-surface disposal, the disposal unit is usually a trench.(11) Engineered barrier--A man-made structure or device that is intended to improve the land disposal facility's ability to meet the performance objectives in this subchapter.(12) Explosive material--Any chemical compound, mixture, or device which produces a substantial instantaneous release of gas and heat spontaneously or by contact with sparks or flame.(13) Government agency--Any executive department, commission, independent establishment, or corporation, wholly or partly owned by the United States of America or the State of Texas and which is an instrumentality of the United States or the State of Texas; or any board, bureau, division, service, office, officer, authority, administration, or other establishment in the executive branch of the government.(14) Hydrogeologic unit--Any soil or rock unit or zone which by virtue of its porosity or permeability, or lack thereof, has a distinct influence on the storage or movement of groundwater.(15) Inadvertent intruder--A person who might occupy the disposal site after closure and engage in normal activities, such as agriculture, dwelling construction, or other pursuits in which the person might be unknowingly exposed to radiation from the waste.(16) Incidental--Unavoidable or otherwise unintentional actions that, with respect to commingling of waste, prevents party state compact waste from being kept separate from waste from other sources without undue risk to occupational or public health and safety or the environment.(17) Intruder barrier--A sufficient depth of cover over the waste that inhibits contact with waste and helps to ensure that radiation exposures to an inadvertent intruder meet the performance objectives set forth in this subchapter, or engineered structures that provide equivalent protection to the inadvertent intruder.(18) Monitoring--Observing and making measurements to provide data to evaluate the performance and characteristics of the disposal site.(19) Party state compact waste--Low-level radioactive waste generated in a party state of the Texas Low-Level Radioactive Waste Disposal Compact.(20) Pyrophoric material--(A) Any liquid that ignites spontaneously in dry or moist air at or below 130 degrees Fahrenheit (54.5 degrees Celsius); or(B) Any solid material, other than one classed as an explosive, which under normal conditions is liable to cause fires through friction, retained heat from manufacturing or processing, or which can be ignited readily and when ignited burns so vigorously and persistently as to create a serious transportation, handling, or disposal hazard. Included are spontaneously combustible and water-reactive materials.(21) Reconnaissance-level information--Any information or analysis that can be retrieved or generated without the performance of new comprehensive site-specific investigations. Reconnaissance-level information includes, but is not limited to, relevant published scientific literature; drilling records required by the commission or other state agencies, such as the Railroad Commission of Texas and the Texas Natural Resources Information System; and reports of governmental agencies.(22) Site--The contiguous land area where any land disposal facility or activity is physically located or conducted including adjacent land used in connection with the land disposal facility or activity, and includes soils and groundwater contaminated by radioactive material. Activity includes the receipt, storage, processing, or handling of radioactive material for purposes of disposal at a land disposal facility.(23) Site closure and stabilization--Those actions that are taken upon completion of operations that prepare the disposal site for custodial care and that assure that the disposal site remain stable and not need ongoing active maintenance.(24) Stability--Structural stability.(25) Surveillance--Observation of the disposal site for purposes of visual detection of need for maintenance, custodial care, evidence of intrusion, and compliance with other license and regulatory requirements.(26) Waste--See "low-level radioactive waste" as defined in §336.2 of this title.(27) Waste from other sources--Any low-level radioactive waste that is not party state compact waste.(28) Waste of international origin--Low-level radioactive waste that originates outside of the United States or territory of the United States, including waste subsequently stored or processed in the United States.</content><note type="source"><p>Source Note: The provisions of this §336.702 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 3, 1998, 23 TexReg 8837; amended to be effective September 14, 2000, 25 TexReg 9012; amended to be effective January 8, 2004, 29 TexReg 150; amended to be effective June 7, 2012, 37 TexReg 4057.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.703"><num value="336.703">§336.703</num><heading>Concepts</heading><content>The concepts and requirements provided in 10 Code of Federal Regulations §61.7, as amended, guide the application of rules in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §336.703 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.704"><num value="336.704">§336.704</num><heading>Applications for License of Compact Waste Disposal Facility</heading><content>(a) Notwithstanding any other section in this chapter, an application for a license to receive, possess, and dispose of low-level radioactive waste from others at the compact waste disposal facility shall be subject to the application selection process in Subchapter I of this chapter (relating to Compact Waste Disposal Facility Application Selection Process). The license issued under this chapter is the license for the compact waste disposal facility. The commission may not issue more than one license for a single compact waste disposal facility. Licensing of the disposal of federal facility waste must meet the requirements of Subchapters H and J of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste; and Federal Facility Waste Disposal Facility).(b) The compact waste disposal facility licensed under this subchapter is the regional disposal facility established and operated under the compact established under Texas Health and Safety Code, Chapter 403, for purposes of the federal Low-Level Radioactive Waste Policy Act, as amended by the Low-Level Radioactive Waste Policy Amendments Act of 1985 (42 United States Code, §2021b - 2021j).</content><note type="source"><p>Source Note: The provisions of this §336.704 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.705"><num value="336.705">§336.705</num><heading>Content of Application</heading><content>An application for a license to receive, possess, and dispose of low-level radioactive waste from other persons by near-surface land disposal shall consist of, but is not limited to, the information specified in Chapter 305 of this title (relating to Consolidated Permits), §336.706 of this title (relating to General Information), §336.707 of this title (relating to Specific Technical Information), §336.708 of this title (relating to Environmental Information), §336.709 of this title (relating to Technical and Environmental Analyses), §336.710 of this title (relating to Institutional Information), and §336.711 of this title (relating to Financial Information).</content><note type="source"><p>Source Note: The provisions of this §336.705 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 14, 2000, 25 TexReg 9012; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.706"><num value="336.706">§336.706</num><heading>General Information</heading><content>(a) The general information in the application shall include each of the following:(1) identity of the applicant, including:(A) the full name, address, telephone number, and description of the business or occupation of the applicant;(B) if the applicant is a partnership, the name and address of each partner and the principal location where the partnership does business;(C) if the applicant is a corporation or an unincorporated association:(i) the state where it is incorporated or organized and the principal location where it does business; and(ii) the names and addresses of its directors and principal officers; and(D) if the applicant proposes to contract the management of the construction and/or operation of the disposal facility to another person, the full name, address, and telephone number of the management contractor, the full name and address of each principal, partner, or director of the contractor, the state where it is organized, and the principal location where it does business.(2) qualifications of the applicant, including:(A) the organizational structure of the applicant, both offsite and onsite, including a description of lines of authority and assignments of responsibilities, whether in the form of administrative directives, contract provisions, or otherwise;(B) the technical qualifications, including training and experience, of the applicant and members of the applicant's staff to engage in the proposed activities. Minimum training and experience requirements for personnel filling key positions described in subparagraph (A) of this paragraph shall be provided;(C) a description of the applicant's personnel training program; and(D) the plan to maintain an adequate complement of trained personnel to carry out waste receipt, handling, and disposal operations in a safe manner. Those plans should include provisions for operating the facility in the event of unavailability of any contracted services or equipment.(3) a description of:(A) the location of the proposed disposal site;(B) the general character of the proposed activities;(C) the types and quantities of waste to be received, possessed, and disposed of;(D) plans for use of the land disposal facility for purposes other than disposal of waste; and(E) the proposed facilities and equipment.(4) proposed schedules for construction, receipt of waste, and first emplacement of waste at the proposed land disposal facility.(5) proposed insurance to be obtained by the applicant to cover potential injury to any property or person, including potential injury from risks relating to transportation.(b) If the applicant is acting as an agent or representative of another person in filing the application, all information required under this section shall be supplied with respect to the other person.</content><note type="source"><p>Source Note: The provisions of this §336.706 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.707"><num value="336.707">§336.707</num><heading>Specific Technical Information</heading><content>The specific technical information in the application shall include the following information needed for demonstration that the performance objectives and the applicable technical requirements of this subchapter will be met:(1) a description of the principal design criteria and their relationship to the performance objectives;(2) a description of the design basis natural events or phenomena and their relationship to the principal design criteria;(3) a description of codes and standards which the applicant has applied to the design and which will apply to construction of the land disposal facilities;(4) a description of the design features of the land disposal facility and the disposal units. For near-surface disposal, the description shall include those design features related to infiltration of water; integrity of covers for disposal units; structural stability of backfill, wastes, and covers; contact of wastes with standing water; disposal site drainage; disposal site closure and stabilization; elimination to the extent practicable of long-term disposal site maintenance; inadvertent intrusion; occupational exposures; disposal site monitoring; and adequacy of the size of the buffer zone for monitoring and potential mitigative measures;(5) a description of the construction and operation of the land disposal facility. The description shall include, as a minimum, the methods of construction of disposal units; waste emplacement; the procedures for and areas of waste segregation; accurate drawings and descriptions of on-site buildings including, but not limited to, construction, foundation details, ventilation, plumbing and fire suppression systems, and proximity to creeks or culverts; types of intruder barriers; onsite traffic and drainage systems; physical security system; survey control program; methods and areas of waste storage; facilities for and methods of processing waste including improperly packaged shipments; and methods to control surface water and groundwater access to the wastes. The description shall also include the methods to be employed in the handling and disposal of wastes containing chelating agents or other nonradiological substances that might affect meeting the performance objectives of this subchapter;(6) a description of the types, chemical and physical forms, quantities, classification, and specifications of the radioactive material proposed to be received, possessed, processed, and disposed of at the land disposal facility. This description shall include any prior disposal containing radioactive material at the site. This description shall include performance criteria for form and packaging of the waste or radioactive material that has been previously received and will be received;(7) a description of the quality assurance program, tailored to disposal of low-level radioactive waste, developed and applied by the applicant for the determination of natural disposal site characteristics and for quality assurance during the design, construction, operation, and closure of the land disposal facility and during the receipt, handling, and emplacement of waste;(8) a description of the radiation safety program for control and monitoring of radioactive effluents to ensure compliance with the performance objective in §336.724 of this title (relating to Protection of the General Population from Releases of Radioactivity) and occupational radiation exposure to ensure compliance with the requirements of Subchapter D of this chapter (relating to Standards for Protection Against Radiation) and to control contamination of personnel, vehicles, equipment, buildings, and the disposal site. Both routine operations and accidents shall be addressed. The program description shall include procedures, instrumentation, facilities, and equipment;(9) an Operating and Emergency Procedures Manual that shall provide detailed procedures for receiving, handling, storing, processing, and disposal of waste. Emergency procedures shall include a spill detection and cleanup program for the site and associated transportation of waste;(10) a description of the administrative procedures that the applicant must apply to control activities at the land disposal facility, including hours of proposed operation; and(11) a description of the electronic recordkeeping system as required in §336.740(i) of this title (relating to Maintenance of Records and Reports).</content><note type="source"><p>Source Note: The provisions of this §336.707 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.708"><num value="336.708">§336.708</num><heading>Environmental Information</heading><content>(a) The application shall include site-specific environmental information (or reconnaissance-level information when appropriate) which addresses and quantifies to the extent practicable the following:(1) a statement of need and a description of the proposed activities identifying the location of the proposed site, the character of the proposed activities, and any plans for use of the site for purposes other than processing and disposal of waste;(2) proposed time schedules for construction, receipt, processing, and disposal of waste at the proposed land disposal facility;(3) area and site characteristics including ecology, geology (including geotechnical features), seismology, geochemistry, soils, topography, hydrology, air quality, natural radiation background, meteorology, climatology, historical and cultural landmarks, archaeology, demography, and current land uses;(4) an identification of the known natural resources at the site, whose exploitation could result in inadvertent intrusion into the wastes after removal of active institutional control;(5) a flow diagram of waste processing and disposal operations, a description and accurate drawings of processing equipment, and any special handling techniques to be employed;(6) site selection process, including considerations of the interrelationships between location of waste generators, transportation costs and means, site characteristics, and compatibility with current land uses;(7) project alternatives, including a discussion of the alternatives considered by the applicant for processing and disposal of waste;(8) radiological and nonradiological impacts of the proposed action, including:(A) surface and groundwater impacts;(B) socioeconomic impacts;(C) short- and long-term impacts on public health and safety; and(D) impacts resulting from irreversible or irretrievable commitments of resources;(9) environmental effects of postulated operational and transportation accidents;(10) a description of baseline, operational, and long-term environmental monitoring programs, including radioactive and chemical characteristics, and the plan for taking corrective measures if migration of radionuclides or chemical constituents is indicated;(11) decommissioning and site closure and stabilization plan, including those design features which are intended to facilitate disposal site closure and to eliminate the need for ongoing active maintenance after closure and an estimated date of site closure, which is to be updated as required; and(12) a list of all governmental permits, licenses, approvals, and other entitlements obtained in connection with the proposed action.(b) The applicant shall provide an environmental report under the requirements of 10 Code of Federal Regulations, §§51.45, 51.62, and 61.10, as amended.</content><note type="source"><p>Source Note: The provisions of this §336.708 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.709"><num value="336.709">§336.709</num><heading>Technical and Environmental Analyses</heading><content>The specific technical and environmental information in the application shall also include the following analyses needed to demonstrate that the performance objectives of this subchapter, referenced in §336.723 of this title (relating to Performance Objectives), will be met:(1) Pathways analyzed in demonstrating protection of the general population from releases of radioactivity shall include air, soil, groundwater, surface water, plant uptake, and exhumation by animals. The analyses shall clearly identify and differentiate between the roles performed by the natural disposal site characteristics and design features in isolating and segregating the wastes. The analyses shall clearly demonstrate that there is reasonable assurance that the exposures to humans from the release of radioactivity will not exceed the limits specified in §336.724 of this title (relating to Protection of the General Population from Releases of Radioactivity). A minimum period of 1,000 years after closure or the period where peak dose occurs, whichever is longer, is required as the period of analysis to capture the peak dose from the more mobile long-lived radionuclides and to demonstrate the relationship of site suitability to the performance objective in this section to the performance objective in §336.724 of this title.(2) Analyses of the protection of individuals from inadvertent intrusion shall include demonstration that there is reasonable assurance that the waste classification and segregation requirements will be met and that adequate barriers to inadvertent intrusion will be provided, as required in §336.725 of this title (relating to Protection of Individuals from Inadvertent Intrusion).(3) Analyses of the protection of individuals during operations shall include assessments of expected exposures due to routine operations and likely accidents during handling, storage, and disposal of waste. The analyses shall provide reasonable assurance that exposures will be controlled to meet the requirements of Subchapter D of this chapter (relating to Standards for Protection Against Radiation) and §336.726 of this title (relating to Protection of Individuals during Operations).(4) Analyses of the long-term stability of the disposal site and the need for ongoing active maintenance after closure shall be based upon analyses of active natural processes such as erosion, mass wasting, slope failure, settlement of wastes and backfill, infiltration through covers over disposal units and adjacent soils, and surface drainage of the disposal site. The analyses shall provide reasonable assurance that there will not be a need for ongoing active maintenance of the disposal site following closure, as required in §336.727 of this title (relating to Stability of the Disposal Site after Closure).</content><note type="source"><p>Source Note: The provisions of this §336.709 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.710"><num value="336.710">§336.710</num><heading>Institutional Information</heading><content>The institutional information in the application shall include:(1) a certification by the State or federal government which will own the disposal site that the State or federal government is prepared to accept transfer of the license when the provisions of §336.721 of this title (relating to Transfer of License to Custodial Agency) are met and will assume responsibility for custodial care after site closure and post-closure observation and maintenance;(2) evidence that arrangements have been made for assumption of ownership in fee by the State or federal government before the commission issues a license where the proposed disposal site is on land not owned by the State or federal government;(3) a description of the ownership of the land and fixtures that are part of the proposed disposal site. A plat plan describing the site and identifying the ownership of the surface and subsurface estates must be included. Where portions of the site have been leased or will be leased to others, the terms of the lease agreement must be described; and(4) a description of the contractual terms and conditions of any agreement for the management or operation of the proposed disposal site.</content><note type="source"><p>Source Note: The provisions of this §336.710 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.711"><num value="336.711">§336.711</num><heading>Financial Information</heading><content>The financial information in the application shall be sufficient to demonstrate that the financial qualifications of the applicant are adequate to carry out the activities for which the license is sought, in accordance with §336.735 of this title (relating to Applicant Qualifications and Assurances), and meet other financial assurance requirements of this subchapter, including §336.736 of this title (relating to Liability Coverage and Funding for Disposal Site Closure and Stabilization), §336.737 of this title (relating to Funding for Institutional Control), §336.738 of this title (relating to Funding for Corrective Action), and Chapter 37 of this title (relating to Financial Assurance).</content><note type="source"><p>Source Note: The provisions of this §336.711 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.715"><num value="336.715">§336.715</num><heading>Standards for Issuance of a License, License Amendment, or License Renewal</heading><content>A license, license amendment, or license renewal for the receipt, possession, and disposal of waste may be issued by the commission upon finding that the issuance of the license must not constitute an unreasonable risk to the health and safety of the public or have a long-term detrimental impact on the environment and that:(1) The applicant is qualified by reason of training and experience to carry out the disposal operations requested in a manner that protects health and minimizes danger to life or the environment;(2) The applicant's proposed disposal site, disposal design, land disposal facility operations (including equipment, facilities, and procedures), disposal site closure, and post-closure institutional control are adequate to protect the public health and safety in that they provide reasonable assurance that the general population will be protected from releases of radioactivity as specified in the performance objective in §336.724 of this title (relating to Protection of the General Population from Releases of Radioactivity);(3) The applicant's proposed disposal site, disposal site design, land disposal facility operations (including equipment, facilities, and procedures), disposal site closure, and post-closure institutional control are adequate to protect the public health and safety in that they will provide reasonable assurance that individual inadvertent intruders are protected in accordance with the performance objective in §336.725 of this title (relating to Protection of Individuals from Inadvertent Intrusion);(4) The applicant's proposed land disposal facility operations (including equipment, facilities, and procedures) are adequate to protect the public health and safety in that they will provide reasonable assurance that the standards for radiation protection set out in Subchapter D of this chapter (relating to Standards for Protection Against Radiation) will be met;(5) The applicant's proposed disposal site, disposal site design, land disposal facility operations, disposal site closure, and post-closure institutional control are adequate to protect the public health and safety and the environment in that they will provide reasonable assurance that long-term stability of the disposed waste and the disposal site will be achieved and will eliminate to the extent practicable the need for ongoing active maintenance of the disposal site following closure;(6) The applicant has provided reasonable assurance that the applicable technical requirements of this subchapter will be met;(7) The applicant's proposal for institutional control provides reasonable assurance that institutional control will be provided for the length of time found necessary to ensure the findings in paragraphs (2)-(5) of this section and that the institutional control meets the requirements of §336.734 of this title (relating to Institutional Requirements);(8) The information on financial assurances meets the requirements of this subchapter; and(9) The applicant has met any additional requirements under the rules of the commission.</content><note type="source"><p>Source Note: The provisions of this §336.715 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.716"><num value="336.716">§336.716</num><heading>Terms and Conditions of License</heading><content>(a) At any time before termination of the license, the licensee shall submit written statements under oath upon request of the commission or executive director to enable the commission to determine whether or not the license should be modified, suspended, or revoked.(b) The license will be transferred to the custodial agency only on the full implementation of the final closure plan as approved by the commission, including post-closure observation and maintenance.(c) The licensee shall be subject to the applicable provisions of Texas Health and Safety Code, Chapter 401, also known as the Texas Radiation Control Act (TRCA) now or hereafter in effect and to applicable rules and orders of the commission. The terms and conditions of the license are subject to amendment, revision, or modification, by reason of amendments to the TRCA or by reason of rules and orders issued in accordance with terms of the TRCA.(d) Any license may be revoked, suspended, or modified, in whole or in part, for any material false statement in the application or any statement of fact required under provisions of the TRCA, or because of conditions revealed by any application or statement of fact or any report, record, or inspection or other means that would warrant the commission to refuse to grant a license on the original application, or for failure to operate the land disposal facility in accordance with the terms of the license, or for any violation of or failure to observe any of the terms and conditions of the TRCA or the license or of any rule order of the commission.(e) Each person licensed by the commission under this subchapter shall confine possession and use of radioactive materials to the locations and purposes authorized in the license.(f) No waste may be disposed of until the executive director has inspected the land disposal facility and has found it to be in conformance with the description, design, and construction described in the application for a license. No waste may be received for disposal at the site until the executive director has approved financial assurance.(g) The commission may incorporate in any license at the time of issuance, or thereafter, by appropriate rule or order, additional requirements and conditions with respect to the licensee's receipt, possession, and disposal of waste as it deems appropriate or necessary in order to:(1) protect the health and safety of the public and the environment; and(2) require reports and recordkeeping and to provide for inspections of activities under the license that may be necessary or appropriate to effectuate the purposes of the TRCA and rules thereunder.(h) Each license shall be issued for an initial term of 15 years from the date of issuance. After the initial 15 years, the commission may renew the license for one or more terms of ten years. The authority to dispose of waste expires on the date stated in the license except as provided in §336.718(a) of this title (relating to Application for Renewal or Closure).(i) The compact waste disposal facility license must require the license holder to indemnify the state for any liability imposed on the state under state or federal law, as required by the commission for the disposal of federal facility waste.(j) All records maintained by the licensee in accordance with §336.740 of this title (relating to Maintenance of Records and Reports) are public information, unless otherwise exempt from public disclosure.</content><note type="source"><p>Source Note: The provisions of this §336.716 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.717"><num value="336.717">§336.717</num><heading>Conveyance of Waste</heading><content>(a) The compact waste disposal facility license holder shall convey, at no cost to the state, the title to the compact waste delivered to the compact waste disposal facility for disposal at the time the waste is accepted at the site. Acceptance occurs when the acceptance criteria specified in the license have been satisfied. This section does not apply to federal facility waste accepted at a federal facility waste disposal facility.(b) The title and all related rights and interest in compact waste conveyed under this section are the property of the commission on the state's behalf. The commission may administer the waste as property in the name of the state.</content><note type="source"><p>Source Note: The provisions of this §336.717 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.718"><num value="336.718">§336.718</num><heading>Application for Renewal or Closure</heading><content>(a) Any expiration date on a license applies only to the aboveground activities and to the authority to dispose of waste. Failure to renew the license shall not relieve the licensee of responsibility for completing site closure, post-closure observation, and transfer of the license to the custodial agency. An application for renewal or an application for closure under §336.719 of this title (relating to Content of Application for Closure) shall be filed at least one year before license expiration.(b) Applications for renewal of a license shall be filed in accordance with Chapter 305 of this title (relating to Consolidated Permits), §336.705 of this title (relating to Content of Application), §336.706 of this title (relating to General Information), §336.707 of this title (relating to Specific Technical Information), §336.708 of this title (relating to Environmental Information), §336.709 of this title (relating to Technical and Environmental Analyses), §336.710 of this title (relating to Institutional Information), §336.711 of this title (relating to Financial Information), and the rules of the commission. Applications for closure shall be filed in accordance with §336.719 of this title and the rules of the commission.(c) In any case in which a licensee has timely filed an application for renewal of a license, the license for continued receipt and disposal of licensed materials shall not expire until the commission has taken final action on the application for renewal.</content><note type="source"><p>Source Note: The provisions of this §336.718 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective September 14, 2000, 25 TexReg 9012; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.719"><num value="336.719">§336.719</num><heading>Content of Application for Closure</heading><content>(a) Before final closure of the disposal site, or as otherwise directed by the commission, the applicant shall submit an application to amend the license for closure. This closure application shall include a final revision and specific details of the disposal site closure plan included as part of the license application submitted under §336.708(11) of this title (relating to Environmental Information) that includes each of the following:(1) any additional geological, geochemical, hydrological, or other disposal site data obtained during the operational period pertinent to the long-term containment of emplaced wastes;(2) the results of tests, experiments, or any other analyses relating to backfill of excavated areas, closure and sealing, waste migration and interaction with emplacement media, or any other tests, experiments, or analyses pertinent to the long-term containment of emplaced waste within the disposal site;(3) any proposed revision of plans for:(A) decontamination and/or dismantlement of surface facilities;(B) backfilling of excavated areas; or(C) stabilization of the disposal site for post-closure care; and(4) any significant new information regarding the environmental impact of closure activities and long-term performance of the disposal site.(b) Upon review and consideration of an application to amend the license for closure submitted in accordance with subsection (a) of this section, the commission may issue an amendment authorizing closure if there is reasonable assurance that the long-term performance objectives of this subchapter will be met.</content><note type="source"><p>Source Note: The provisions of this §336.719 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.720"><num value="336.720">§336.720</num><heading>Post-closure Observation and Maintenance</heading><content>(a) Following completion of closure authorized in §336.719 of this title (relating to Content of Application for Closure), the licensee shall observe, monitor, and carry out necessary maintenance and repairs at the disposal site until the site closure is complete and the license is transferred by the commission in accordance with §336.721 of this title (relating to Transfer of License to Custodial Agency). Responsibility for the disposal site shall be maintained by the licensee for five years. A shorter or longer time period for post-closure observation and maintenance may be established and approved as part of the site closure plan, based on site-specific conditions.(b) Upon transfer of the license to the custodial agency and transfer of the financial assurance to the perpetual care account, the licensee will be released from the requirements of liability coverage under Chapter 37, Subchapter T of this title (relating to Financial Assurance for Near-Surface Land Disposal of Low-Level Radioactive Waste).</content><note type="source"><p>Source Note: The provisions of this §336.720 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.721"><num value="336.721">§336.721</num><heading>Transfer of License to Custodial Agency</heading><content>Following closure and the period of post-closure observation and maintenance, the licensee may apply for an amendment to transfer the license to the custodial agency. The license may be transferred when the commission finds that:(1) The closure of the disposal site has been made in conformance with the licensee's disposal site closure plan, as amended and approved as part of the license;(2) Reasonable assurance has been provided by the licensee that the performance objectives of this subchapter are met;(3) Any funds and necessary records for care shall be transferred to the custodial agency;(4) The post-closure monitoring program is operational for implementation by the custodial agency; and(5) The state or federal government agency (custodial agency) which will assume responsibility for institutional control of the disposal site is prepared to assume responsibility and ensure that the institutional requirements found necessary under §336.715(7) of this title (relating to Standards for Issuance of a License, License Amendment, or License Renewal) will be met.</content><note type="source"><p>Source Note: The provisions of this §336.721 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.722"><num value="336.722">§336.722</num><heading>Termination of License</heading><content>(a) Following any period of institutional control needed to meet the requirements found necessary under §336.715 of this title (relating to Standards for Issuance of a License, License Amendment, or License Renewal), the licensee (custodial agency) may apply for an amendment to terminate the license.(b) This application shall be filed, and reviewed, in accordance with applicable provisions of Chapter 305 of this title (relating to Consolidated Permits).(c) A license may be terminated only when the commission finds that:(1) The institutional control requirements found necessary under §336.715(7) of this title have been met; and(2) Any additional requirements resulting from new information developed during the institutional control period have been met and that permanent monuments or markers warning against intrusion have been installed.</content><note type="source"><p>Source Note: The provisions of this §336.722 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.723"><num value="336.723">§336.723</num><heading>Performance Objectives</heading><content>Land disposal facilities shall be sited, designed, operated, closed, and controlled after closure so that reasonable assurance exists that exposures to humans are within the limits established in the performance objectives in §336.724 of this title (relating to Protection of the General Population from Releases of Radioactivity), §336.725 of this title (relating to Protection of Individuals from Inadvertent Intrusion), §336.726 of this title (relating to Protection of Individuals during Operations), and §336.727 of this title (relating to Stability of the Disposal Site after Closure).</content><note type="source"><p>Source Note: The provisions of this §336.723 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.724"><num value="336.724">§336.724</num><heading>Protection of the General Population from Releases of Radioactivity</heading><content>Concentrations of radioactive material which may be released to the general environment in groundwater, surface water, air, soil, plants, or animals shall not result in an annual dose above background exceeding an equivalent of 25 millirems to the whole body, 75 millirems to the thyroid, or 25 millirems to any other organ of any member of the public. Effort shall be made to maintain releases of radioactivity in effluents to the general environment as low as is reasonably achievable.</content><note type="source"><p>Source Note: The provisions of this §336.724 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.725"><num value="336.725">§336.725</num><heading>Protection of Individuals from Inadvertent Intrusion</heading><content>Design, operation, and closure of the land disposal facility shall ensure protection of any individual inadvertently intruding into the disposal site and occupying the site or contacting the waste at any time after active institutional controls over the disposal site are removed.</content><note type="source"><p>Source Note: The provisions of this §336.725 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.726"><num value="336.726">§336.726</num><heading>Protection of Individuals during Operations</heading><content>Operations at the land disposal facility shall be conducted in compliance with the standards for radiation protection set out in Subchapter D of this chapter (relating to Standards for Protection Against Radiation), except for releases of radioactivity in effluents from the land disposal facility, which shall be governed by §336.724 of this title (relating to Protection of the General Population from Releases of Radioactivity). Effort shall be made to maintain radiation exposures as low as is reasonably achievable.</content><note type="source"><p>Source Note: The provisions of this §336.726 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.727"><num value="336.727">§336.727</num><heading>Stability of the Disposal Site after Closure</heading><content>The disposal facility shall be sited, designed, used, operated, and closed to achieve long-term stability of the disposal site and to eliminate to the extent practicable the need for ongoing active maintenance of the disposal site following closure so that only surveillance, monitoring, or minor custodial care are required.</content><note type="source"><p>Source Note: The provisions of this §336.727 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.728"><num value="336.728">§336.728</num><heading>Disposal Site Suitability Requirements for Near-Surface Land Disposal</heading><content>(a) The disposal site shall be capable of being characterized, modeled, analyzed, and monitored.(b) Within the region where the land disposal facility is to be located, a disposal site should be selected so that projected population growth and future developments are not likely to affect the ability of the land disposal facility to meet the performance objectives of this subchapter.(c) Areas shall be avoided that have known natural resources which, if exploited, would result in failure to meet the performance objectives of this subchapter.(d) The disposal site shall be generally well drained and free of areas of flooding or frequent ponding. Waste disposal shall not take place in a 100-year flood plain, coastal high-hazard area, or wetland, as defined in Executive Order 11988, "Floodplain Management Guidelines."(e) Upstream drainage areas shall be minimized to decrease the amount of runoff which could erode or inundate disposal units.(f) The disposal site shall provide sufficient depth to the water table so that groundwater, perennial or otherwise, shall not intrude into the waste.(g) Areas shall be avoided that are the recharge areas of sole source aquifers unless it can be demonstrated with reasonable assurance that the disposal site shall be designed, constructed, operated, and closed without an unreasonable risk to an aquifer.(h) The hydrogeologic unit used for disposal shall not discharge groundwater to the surface within the disposal site.(i) Areas shall be avoided where tectonic processes such as faulting, folding, seismic activity, or vulcanism may occur with such frequency and extent to significantly affect the ability of the disposal site to meet the performance objectives of this subchapter or may preclude defensible modeling and prediction of long-term impacts.(j) Areas shall be avoided where surface geologic processes such as mass wasting, erosion, slumping, landsliding, or weathering occur with such frequency and extent to significantly affect the ability of the disposal site to meet the performance objectives of this subchapter or may preclude defensible modeling and prediction of long-term impacts.(k) The disposal site shall not be located where nearby facilities or activities could adversely impact the ability of the site to meet the performance objectives of this subchapter or significantly mask the environmental monitoring program. If activities involving radioactive material were previously performed on the site, the applicant shall evaluate the contribution of those activities that may impact the ability of the site to meet performance objectives.(l) The disposal site shall not be located in areas where soil conditions are such that spill cleanup would be impracticable.(m) The site shall not be located in a county any part of which is located 62 miles or less from an international boundary.(n) The site shall not be located in a county in which the average annual rainfall is greater than 20 inches.(o) The site shall not be located in a county that adjoins river segment 2309, 2310, or 2311 as identified by the commission in the Texas Surface Water Quality Standards in §307.10(3) of this title (relating to Appendices A - E). These river segments are identified as follows:(1) river segment 2309 is the Devil's River;(2) river segment 2310 is the lower Pecos River; and(3) river segment 2311 is the upper Pecos River.(p) The site shall not be located less than 20 miles upstream of or up-drainage from the maximum elevation of the surface of a reservoir project that:(1) has been constructed or is under construction by the United States Bureau of Reclamation or the United States Army Corps of Engineers; or(2) has been approved for construction by the Texas Water Development Board as part of the state water plan under Texas Water Code, Subchapter C, Chapter 16.</content><note type="source"><p>Source Note: The provisions of this §336.728 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.729"><num value="336.729">§336.729</num><heading>Disposal Site Design for Near-Surface Land Disposal</heading><content>(a) Site design features shall be directed toward long-term isolation and avoidance of the need for continuing active maintenance after site closure.(b) The disposal site design and operation shall be compatible with the disposal site closure plan and lead to disposal site closure that provides reasonable assurance that the performance objectives of this subchapter will be met.(c) The disposal site shall be designed to complement and improve, where appropriate, the ability of the disposal site's natural characteristics to assure that the performance objectives of this subchapter will be met.(d) Covers shall be designed to minimize water infiltration, to direct percolating or surface water away from the disposed waste, and to resist degradation by surface geologic processes and biotic activity.(e) Surface features shall direct surface water drainage away from disposal units at velocities and gradients which will not result in erosion that will require ongoing active maintenance.(f) The disposal site shall be designed to minimize the contact of water with waste during storage, the contact of standing water with waste during disposal, and the contact of percolating or standing water with wastes after disposal.(g) The design of a land disposal facility should incorporate, to the extent practicable, safeguards against hazards resulting from local meteorological conditions, including phenomena such as hurricanes, tornados, violent storms, and susceptibility to flooding, as well as geologic phenomena such as earthquakes and earth tremors.</content><note type="source"><p>Source Note: The provisions of this §336.729 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.730"><num value="336.730">§336.730</num><heading>Near-Surface Land Disposal Facility Operation and Disposal Site Closure</heading><content>(a) Wastes designated as Class A under §336.362(a) of this title (relating to Appendix E. Classification and Characteristics of Low-Level Radioactive Waste) shall be segregated from other wastes by placing the Class A wastes in disposal units which are sufficiently separated from disposal units for the other waste classes so that any interaction between Class A wastes and other wastes shall not result in the failure to meet the performance objectives specified in §336.723 of this title (relating to Performance Objectives). This segregation is not necessary for Class A wastes if they meet the stability requirements in §336.362(b)(2) of this title.(b) Wastes designated as containerized Class A, Class B, or Class C under §336.362(a) of this title or §336.702 of this title (relating to Definitions) shall be disposed of in the following manner:(1) within a reinforced concrete container and within a reinforced concrete barrier, or within containment structures made of materials technologically equivalent or superior to reinforced concrete;(2) in such a manner that the waste can be monitored and retrieved; and(3) so that the top of the waste is a minimum of five meters below the top surface of the cover or shall be disposed of with intruder barriers that are designed to protect against an inadvertent intrusion for at least 500 years.(c) Wastes shall be emplaced in a manner that maintains the package integrity during emplacement, minimizes the void spaces between packages, and permits the void spaces to be filled.(d) Void spaces between waste packages shall be filled with earth or other material to reduce future subsidence within the fill.(e) Waste shall be placed and covered in a manner that limits the radiation dose rate at the surface of the cover to levels that at a minimum will permit the licensee to comply with all provisions of §336.313 of this title (relating to Dose Limits for Individual Members of the Public) and §336.314 of this title (relating to Compliance with Dose Limits for Individual Members of the Public) at the time the license is transferred under §336.721 of this title (relating to Transfer of License to Custodial Agency).(f) The boundaries and locations of each disposal unit shall be accurately located and mapped by means of land survey. Disposal units shall be marked in such a way that the boundaries of each unit can be easily defined. Three permanent survey marker control points, referenced to United States Geological Survey (USGS) or National Geodetic Survey (NGS) survey control stations, shall be established on the site to facilitate surveys. The USGS or NGS control stations shall provide horizontal and vertical controls as checked against USGS or NGS record files.(g) A buffer zone of land shall be maintained between any buried waste and the disposal site boundary and beneath the disposed waste. The buffer zone shall be of adequate dimensions to carry out environmental monitoring activities specified in §336.731(c) of this title (relating to Environmental Monitoring) and to take mitigative measures if needed.(h) Closure and stabilization measures as set forth in the approved site closure plan shall be carried out as each disposal unit is filled and covered.(i) Active waste disposal operations shall not have an adverse effect on completed closure and stabilization measures.(j) Only wastes containing or contaminated with radioactive materials shall be disposed of at the disposal site.</content><note type="source"><p>Source Note: The provisions of this §336.730 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.731"><num value="336.731">§336.731</num><heading>Environmental Monitoring</heading><content>(a) A pre-operational monitoring program shall be conducted to provide basic environmental data on the disposal site characteristics. For those characteristics that are subject to seasonal variation, data must cover at least a 12-month period.(b) During the land disposal facility site construction and operation, the licensee shall maintain a monitoring program. Measurements and observations shall be made and recorded to provide data to evaluate the potential health and environmental impacts during both the construction and the operation of the facility and to enable the evaluation of long-term effects and the need for mitigative measures. The monitoring system shall be capable of providing early warning of releases of radionuclides and chemical constituents before they leave the disposal site boundary.(c) After the disposal site is closed, the licensee responsible for postoperational surveillance of the disposal site shall maintain a monitoring system based on the operating history and the closure and stabilization of the disposal site. The monitoring system shall be capable of providing early warning of releases of radionuclides and chemical constituents before they leave the disposal site boundary.(d) The licensee shall have a plan for taking corrective measures if migration of radionuclides and chemical constituents would indicate that the performance objectives of this subchapter may not be met.</content><note type="source"><p>Source Note: The provisions of this §336.731 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.732"><num value="336.732">§336.732</num><heading>Alternative Requirements for Design and Operations</heading><content>The commission may, upon request or on its own initiative, authorize provisions other than those set forth in §336.729 of this title (relating to Disposal Site Design for Near-Surface Land Disposal), §336.730 of this title (relating to Near-Surface Land Disposal Facility Operation and Disposal Site Closure), and §336.731 of this title (relating to Environmental Monitoring) for the segregation and disposal of waste and for the design and operation of a land disposal facility on a specific basis, if it finds reasonable assurance of compliance with the performance objectives of this subchapter.</content><note type="source"><p>Source Note: The provisions of this §336.732 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.733"><num value="336.733">§336.733</num><heading>Waste Classification, Characteristics, and Labeling</heading><content>(a) All low-level radioactive waste and mixed waste received for disposal by the licensee shall be classified in accordance with §336.362(a), of this title (relating to Appendix E. Classification and Characteristics of Low-Level Radioactive Waste), shall meet the applicable characteristics of §336.362(b) of this title, and shall be labeled in accordance with §336.362(c) of this title.(b) The special criteria specified in this subsection shall apply to the disposal of wastes consisting of radionuclides with half-lives greater than 35 years and wastes consisting of transuranic radionuclides which are acceptable for disposal under this subchapter, that is, transuranic radionuclides in concentrations of less than ten nanocuries/gram. All those wastes that are determined to be Class A shall be placed in reinforced concrete canisters or equivalent containment structures to provide stability after disposal or shall meet the stability requirements set forth in §336.362(b)(2) of this title. These special criteria are in addition to the minimum requirements for Class A wastes set forth in §336.362(b)(1) of this title. The executive director may consider a licensee's request for an alternative from this special criteria on a case-by-case basis.(c) In addition to the requirements of this chapter, the licensee shall comply with the requirements of Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste) for the disposal of mixed waste. The licensee may not dispose of mixed waste unless the licensee is specifically licensed for the disposal of mixed waste under this chapter and permitted under Chapter 335 of this title.</content><note type="source"><p>Source Note: The provisions of this §336.733 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.734"><num value="336.734">§336.734</num><heading>Institutional Requirements</heading><content>(a) Disposal of waste received from other persons may be permitted only on land owned in fee by the State or the federal government.(b) The custodial agency shall carry out an institutional control program to physically control access to the disposal site following transfer of control of the disposal site from the disposal site operator. The institutional control program shall also include, but not be limited to, carrying out an environmental monitoring program at the disposal site, periodic surveillance, minor custodial care, and other requirements as determined by the commission or executive director, and administration of funds to cover the costs for these activities. The period of institutional control shall be determined by the commission but may not be relied upon for more than 100 years following transfer of control of the disposal site to the custodial agency.</content><note type="source"><p>Source Note: The provisions of this §336.734 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.735"><num value="336.735">§336.735</num><heading>Applicant Qualifications and Assurances</heading><content>The applicant shall show that it either possesses the necessary funds or has reasonable assurance of obtaining the necessary funds, or by a combination of the two, to cover the estimated costs of conducting all licensed activities over the planned operating life of the project, including costs of construction and disposal. The applicant shall provide proof of funds sufficient to cover any annual license fee and any agency costs of processing the application that may exceed the $500,000 application processing fee.</content><note type="source"><p>Source Note: The provisions of this §336.735 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.736"><num value="336.736">§336.736</num><heading>Liability Coverage and Funding for Disposal Site Closure and Stabilization</heading><content>(a) The applicant shall provide assurance 60 days prior to the initial receipt of waste that sufficient funds will be available to carry out disposal site closure and stabilization, including:(1) decontamination or dismantlement of land disposal facility structures;(2) disposal of any radioactive material remaining at the site at closure; and(3) closure and stabilization of the disposal site so that, following transfer of the disposal site to the custodial agency, the need for ongoing active maintenance is eliminated to the extent practicable and only minor custodial care, surveillance, and monitoring are required.(b) The assurance shall be based on cost estimates approved by the executive director which reflect the commission-approved plan for disposal site closure and stabilization. The applicant's cost estimates shall take into account total costs that would be incurred if an independent contractor were hired to perform the closure and stabilization work.(c) The licensee's financial assurance mechanism and cost estimates shall be reviewed annually by the commission at an open meeting to assure that sufficient funds are available for completion of the closure plan, assuming that the work has to be performed by an independent contractor.(d) The amount of financial assurance should change in accordance with the predicted cost of future closure and stabilization. Factors affecting cost estimates for closure and stabilization include inflation, increases in the amount of disturbed land, changes in engineering plans, closure and stabilization that have already been accomplished, and any other conditions affecting costs. This shall yield a closure amount that is at least sufficient at all times to cover the costs of closure of the disposal units that are expected to be used before the next annual review.(e) Sixty days prior to the initial receipt of waste, the licensee shall provide financial assurance for bodily injury and property damage to third parties caused by sudden and non-sudden accidental occurrences arising from operations of the compact waste disposal facility and/or federal facility waste disposal facility in a manner that meets the requirements of Chapter 37 of this title (relating to Financial Assurance).(f) Financial assurance mechanisms submitted to comply with this section shall meet the requirements specified in Chapter 37, Subchapter T of this title (relating to Financial Assurance for Near-Surface Land Disposal of Radioactive Waste).</content><note type="source"><p>Source Note: The provisions of this §336.736 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective March 21, 2000, 25 TexReg 2397; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.737"><num value="336.737">§336.737</num><heading>Funding for Institutional Control</heading><content>(a) The licensee shall pay into the perpetual care account an amount determined by the executive director to be adequate to provide surveillance, monitoring, any required maintenance, and other care of the disposal site on a continuing basis during the institutional control period. Unless otherwise specified, the amount of funding provided shall be an amount necessary to provide perpetual surveillance, monitoring, any required maintenance, and other care of the disposal site and the administration of the fund by the state. The amount of funds necessary to provide perpetual care during the institutional control period shall be based upon a real annual rate of interest, above inflation, of 2% (i.e., the amount required is calculated by expressing all costs at an annual rate and multiplying the total annual cost by 50 to calculate an amount that will be self-perpetuating at a real annual interest rate of 2%).(b) Sixty days prior to the initial receipt of waste, the licensee shall provide the total amount of required funding by means approved by the executive director, such as a combination of periodic payments into the fund and financial assurance covering the remainder of the total amount. Any changes to institutional control proposed by the licensee shall be submitted to the commission in the form of an application for a license amendment. Financial assurance mechanisms shall meet the requirements of Chapter 37, Subchapter T of this title (relating to Financial Assurance for Near-Surface Land Disposal of Low-Level Radioactive Waste).(c) The commission at an open meeting shall review annually the amount paid into the fund and shall adjust the amount, if necessary, to ensure the payment schedule is adequate to cover the costs of surveillance, monitoring, any required maintenance, and other care of the disposal site during the institutional control period. The amount may be adjusted to reflect inflation, changes in activities performed, and any other conditions affecting costs.</content><note type="source"><p>Source Note: The provisions of this §336.737 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective March 21, 2000, 25 TexReg 2397; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.738"><num value="336.738">§336.738</num><heading>Funding for Corrective Action</heading><content>(a) Sixty days prior to the initial receipt of waste, the licensee shall provide financial assurance for corrective action to address unplanned events that pose a risk to public health, safety, and the environment that may occur after the decommissioning and closure of the compact waste disposal facility or federal facility waste disposal facility.(b) The payment schedule and amount shall be determined by the executive director. The amount shall not be less than $20 million at the time the disposal facility site is decommissioned. The commission at an open meeting shall review annually the amount for corrective action.(c) Financial assurance under this section shall be established and maintained in accordance with Chapter 37, Subchapter T of this title (relating to Financial Assurance for Near-Surface Land Disposal of Low-Level Radioactive Waste).</content><note type="source"><p>Source Note: The provisions of this §336.738 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.739"><num value="336.739">§336.739</num><heading>Volume Reduction</heading><content>(a) The compact waste disposal facility license holder may accept nonparty compact waste for disposal at the facility only if the waste has been volume-reduced, if eligible, by at least a factor of three in a manner consistent with Texas Health and Safety Code, Chapter 401, Subchapter F.(b) Waste has been reduced by a factor of three if the final volume of waste disposed is one-third (1/3) or less of the initial volume.(1) Initial volume of the waste is the volume of radioactive material generated prior to receiving any processing or operational waste volume reducing methods.(2) Final volume of the waste is the volume after the waste has been processed, whether by the generator (including any waste minimization as part of the generator's process) or by a commercial waste processor, and is in the final form immediately prior to disposal. Waste packaging is not included in determining the final volume.(c) Examples and Eligibility.(1) Examples of volume reduction methods include:(A) reduction of the volume of ion exchange media loaded into individual demineralizer vessels;(B) on-line lithiation strategies for reactor coolant purification demineralizers;(C) intermittent use of some demineralizers instead of continuous use (spent fuel pool);(D) reduction by compaction of dry active waste or compactible waste;(E) removal of radioactive particulates from a liquid waste stream by the use of methods such as filters, ion-exchange medium (such as resin), precipitation, flocculation, or settlement (resultant liquid, if still radioactive, would not be considered volume reduced);(F) incineration (any radioactive effluent captured in a device such as a baghouse or charcoal filter would not be considered volume reduced);(G) concentration technologies such as evaporation, crystallization, drying, or dewatering; or(H) repackaging or consolidation of waste in order to more efficiently minimize volume required for disposal in compliance with the license.(2) Examples of what is not considered volume reduction include:(A) downblending;(B) separation of radioactive waste from non-radioactive waste, such as debris or contaminated scrap metal; or(C) volume reduction based entirely on hypothetical calculations, rather than actual records of historical waste generation.(3) Waste streams that are not eligible for volume reduction include:(A) irradiated hardware;(B) solid forms, such as non-compactible metals or monoliths;(C) large components;(D) soils and demolition debris; or(E) sealed sources.(d) Recordkeeping.(1) Maintenance of records. Records detailing compliance with this section must be maintained and available for examination and copying by the executive director or the executive director's designee at all reasonable times. Such records must include information to identify the manifest number(s) and the exact shipping date(s) of the volume-reduced waste being transported to the compact waste disposal facility. Upon request, all records required by this chapter must be assembled at a single location within the state of Texas.(2) Records retention. Records under this section must be kept for a minimum of five years from the date on which the record is made.(3) Penalties for records violations. A person that violates this section shall be subject to any action authorized by law to secure compliance, including the assessment of administrative penalties or civil penalties as prescribed by law, and the suspension or revocation of a license.</content><note type="source"><p>Source Note: The provisions of this §336.739 adopted to be effective December 31, 2015, 40 TexReg 9701.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.740"><num value="336.740">§336.740</num><heading>Maintenance of Records and Reports</heading><content>(a) Each licensee shall maintain any records and make any reports as may be required by the conditions of the license, by the rules in this chapter, or by orders of the commission. Copies of any records or reports required by the license, rules, or orders shall be submitted to the executive director or commission on request. All records and reports required by the license, rules, or orders shall be complete and accurate.(b) Records which are required by the rules in this chapter or by license conditions shall be maintained for a period specified by the appropriate rules or by license condition. If a retention period is not otherwise specified, these records shall be maintained and transferred to the executive director as specified in subsection (e) of this section as a condition of license termination unless the executive director otherwise authorizes their disposition.(c) Each record required by this chapter shall be legible throughout the specified retention period. The record shall be the original or a reproduced copy or a microform, provided that the copy or microform is authenticated by authorized personnel and that the microform is capable of producing a clear copy throughout the required retention period. The record may also be stored in electronic media with the capability for producing legible, accurate, and complete records during the required retention period. Records, such as letters, drawings, and specifications, shall include all pertinent information, such as stamps, initials, and signatures. The licensee shall maintain adequate safeguards against tampering with and the loss of records.(d) If there is a conflict between the commission's rules, license condition, or other written approval or authorization from the executive director pertaining to the retention period for the same type of record, the longest retention period specified takes precedence.(e) Notwithstanding subsections (a)-(d) of this section, the licensee shall record the location and the quantity of wastes contained in the disposal site and shall transfer these records upon license termination to the executive director and to such other government agencies or officials as designated by the commission.(f) Following receipt and acceptance of a shipment of waste, the licensee shall record the date that the shipment was received at the disposal facility; the date of disposal of the waste; a traceable shipment manifest number; a description of any engineered barrier or structural overpack provided for disposal of the waste; the location of disposal at the disposal site; the containment integrity of the waste disposal containers as received; any discrepancies between materials listed on the manifest and those received; the volume of any pallets, bracing, or other shipping materials, or of materials generated on site, that are contaminated and are disposed of as contaminated or suspect materials; and any evidence of leaking or damaged disposal containers or radiation or contamination levels in excess of limits specified in rules of the United States Department of Transportation or United States Nuclear Regulatory Commission. The licensee shall briefly describe any repackaging operations of any of the disposal containers included in the shipment, plus any other information required by the commission as a license condition. The licensee shall retain these records until the commission transfers or terminates the license that authorizes the activities described in this section.(g) Each licensee authorized to dispose of waste received from other persons shall file a copy of its financial report or a certified financial statement annually with the executive director in order to update the information base for determining financial qualifications.(h) Annual reports shall be submitted.(1) Each licensee authorized to dispose of waste received from other persons under this subchapter shall submit annual reports to the executive director. Reports shall be submitted by the end of the first calendar quarter of each year for the preceding year.(2) The annual reports shall include:(A) specification of the quantity of each of the principal radionuclides released to unrestricted areas in liquid and in airborne effluents during the preceding year;(B) the results of the environmental monitoring program;(C) a summary of licensee disposal unit survey and maintenance activities, including the location of each discrete waste shipment;(D) a summary, by waste class, of activities and quantities of radionuclides disposed of;(E) any instances in which observed site characteristics were significantly different from those described in the application for a license; and(F) any other information the executive director may require.(3) If the quantities of radioactive materials released during the reporting period, monitoring results, or maintenance performed are significantly different from those expected in the documents previously reviewed as part of the licensing action, the annual report shall cover this specifically.(i) An electronic record keeping system shall be maintained.(1) In addition to the other requirements of this section, the licensee shall store, or have stored, manifest and other information pertaining to receipt and disposal of radioactive waste in an electronic recordkeeping system.(2) The manifest information that must be electronically stored is:(A) that prescribed in §336.363, Appendix F, of this title (relating to Requirements for Receipt of Low-Level Radioactive Waste for Disposal at Licensed Land Disposal Facilities and Uniform Manifests), that is, the information requested on applicable United States Nuclear Regulatory Commission (NRC) Forms 540 (Uniform Low-Level Radioactive Waste Manifest (Shipping Paper)) and 541 (Uniform Low-Level Radioactive Waste Manifest (Container and Waste Description)) and, if necessary, on an applicable NRC Form 542 (Uniform Low-Level Radioactive Waste Manifest (Manifest Index and Regional Compact Tabulation)), as those forms and requirements are prescribed in 10 CFR 61.80 as amended through December 27, 1982 (47 FedReg 57463) and 10 CFR 20.2006 as amended through March 27, 1995 (60 FedReg 15663), with the exception of shipper and carrier telephone numbers and shipper and consignee certifications;(B) that information required in subsection (f) of this section; and(C) specification of:(i) the activity of each of the radionuclides hydrogen-3, carbon-14, technetium-99, and iodine-129 in waste disposed of;(ii) the masses of uranium-233, uranium-235, and plutonium in special nuclear material in waste disposed of; and(iii) the mass of uranium and thorium in source material in waste disposed of.(3) As specified in license conditions, the licensee shall report the stored information, or subsets of this information, on a computer-readable medium, as that term is defined in §336.363, Appendix F, of this title.</content><note type="source"><p>Source Note: The provisions of this §336.740 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.741"><num value="336.741">§336.741</num><heading>Tests at Land Disposal Facilities</heading><content>Each licensee shall perform or permit the executive director to perform any tests the executive director deems appropriate or necessary for the administration of the rules in this chapter, including tests of:(1) wastes and facilities used for the receipt, storage, processing, handling, and disposal of wastes;(2) radiation detection and monitoring instruments; and(3) other equipment and devices used in connection with the receipt, possession, handling, processing, storage, or disposal of waste.</content><note type="source"><p>Source Note: The provisions of this §336.741 adopted to be effective June 5, 1997, 22 TexReg 4588.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.743"><num value="336.743">§336.743</num><heading>Resident Inspectors</heading><content>The commission may require at any disposal site that the licensee provide facilities for two or more resident inspectors employed by the commission. The licensee shall reimburse the commission for the salary and other expenses of the inspectors, as provided in Subchapter B of this chapter (relating to Radioactive Substance Fees).</content><note type="source"><p>Source Note: The provisions of this §336.743 adopted to be effective June 5, 1997, 22 TexReg 4588; amended to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.745"><num value="336.745">§336.745</num><heading>Incidental Commingling of Waste</heading><content>(a) Applicability. This section does not limit party state compact waste that is commingled with other party state compact waste during processing nor low-level radioactive waste that is subject to an agreement of the Texas Low-Level Radioactive Waste Disposal Compact Commission for the importation of low-level radioactive waste into the compact for disposal. The terms of an agreement of the Texas Low-Level Radioactive Waste Disposal Compact Commission may provide requirements for any processed waste. Acceptance and disposal of waste for all sources by the licensee is limited to the waste specifically authorized by the license issued under this chapter.(b) A licensee authorized to dispose of waste from other persons may not dispose low-level radioactive waste that contains party state compact waste that has been commingled at a commercial processing facility with waste from other sources except as provided in this section.(c) A licensee may dispose low-level radioactive waste that contains party state compact waste that has been commingled at a commercial processing facility with waste from other sources that does not exceed the thresholds and criteria established in subsection (g) of this section.(d) A licensee may not dispose low-level radioactive waste that contains party state compact waste that has been commingled at a commercial processing facility with waste from other sources unless the commingling was incidental to the processing of the waste and processing has not altered the waste class in accordance with §336.229 of this title (relating to Prohibition of Dilution).(e) No less than five days prior to the receipt by the licensee of low-level radioactive waste that has been commercially processed:(1) The licensee shall submit a report to the executive director that identifies the generator of the low-level radioactive waste by name, address, and license number; the processor of the low-level radioactive waste by name, address, and license number; the methods used to process the waste; and the volume, physical form and activity of the processed waste received for disposal at the compact waste disposal facility;(2) If the waste does not contain party state compact waste that has been commingled at a commercial processing facility with waste from other sources, the licensee and the processor shall certify that party state compact waste has not been commingled with low-level radioactive waste from other sources, including commingling with waste of international origin; and(3) If the waste contains party state compact waste that has been commingled at a commercial processing facility with waste from other sources, the report submitted under paragraph (1) of this subsection must:(A) identify and certify the waste inventory from a party state compact generator at the point of waste entrance into and exit from a processing unit or piece of processing equipment where it has been commingled with waste from other sources;(B) certify that the waste from other sources does not exceed the thresholds and criteria established in subsection (g) of this section and provide documentation of how compliance with the thresholds and criteria in subsection (g) of this section were determined;(C) certify that the commingling of the waste was incidental to the processing of the waste and that the commingled waste could not have been kept separate without undue risk to occupational or public health and safety or the environment;(D) certify that no waste of international origin was either intentionally or unintentionally commingled and that no nonparty compact waste was intentionally commingled with party state compact waste during processing;(E) certify that processed waste meets the requirements of §336.229 of this title; and(F) certify that sealed sources have not been destroyed or damaged to alter the physical form of the sealed source as part of processing.(f) The licensee may not dispose of low-level radioactive waste that has been commercially processed without submitting the report required in subsection (e) of this section.(g) Waste streams allowed for acceptance for disposal by the licensee are specifically authorized by the disposal license issued under this chapter. Waste from other sources that is incidentally commingled with compact party state waste may not exceed the thresholds and criteria established in the subsection.(1) Dry Active Waste or Compactable Trash. Authorized common trash, Class A low-level radioactive waste-after processing, waste from other sources may not exceed 10% of the total weight of the processed waste. The radioactivity of waste from other sources may not exceed:(A) 0.05 microcurie (1.85 kilobecquerels) for any radionuclide per gram; or(B) 10% of concentration limit for Class A low-level radioactive waste consistent with §336.362 of this title (relating to Appendix E. Classification and Characteristics of Low-Level Radioactive Waste).(2) Nuclear Utility Resins. Authorized Decontamination, Demineralization, or Secondary System Resins, Class A low-level radioactive waste threshold-after processing, waste from other sources may not exceed 10% of the total weight of the processed waste. The radioactivity of waste from other sources may not exceed:(A) 0.05 microcurie (1.85 kilobecquerels) for any radionuclide per gram; or(B) 10% of concentration limit for Class A low-level radioactive waste consistent with §336.362 of this title.(3) Nuclear Utility Resins. Authorized Decontamination, Demineralization, Clean-up, or Secondary System Resins, Class B or C low-level radioactive waste threshold-after processing, waste from other sources may not exceed 10% of the total volume and radioactivity of the processed waste.(4) Nuclear Utility Filters. Authorized filters and associated waste, Class A low-level radioactive waste threshold-after processing, waste from other sources may not exceed 10% by total weight of the processed waste. The radioactivity of waste from other sources may not exceed:(A) 0.05 microcurie (1.85 kilobecquerels) for any radionuclide per gram; or(B) 10% of concentration limit for Class A low-level radioactive waste consistent with §336.362 of this title.(5) Nuclear Utility Filters. Authorized filters and associated waste, Class B or C low-level radioactive waste threshold-after processing, waste from other sources may not exceed 10% by total volume and radioactivity of the processed waste.(6) For waste streams not identified in paragraphs (1) - (5) of this subsection. If other waste streams are processed with incidental commingling of waste from other sources, these waste streams must be specifically identified and fully described in the report submitted under subsection (e) of this section. After processing, the waste from other sources may not exceed 10% by total volume, total weight, total radioactivity, and if classified as Class A low-level radioactivity waste, may not exceed 10% of the concentration limit for Class A low-level radioactive waste consistent with §336.362 of this title.(7) For all waste streams. If new radionuclides are introduced through incidental commingling at a commercial processing facility, these must be specifically identified and may not result in a change in waste class or increased health and safety risks for handling and disposal of the processed waste.</content><note type="source"><p>Source Note: The provisions of this §336.745 adopted to be effective June 7, 2012, 37 TexReg 4057.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scH/s336.747"><num value="336.747">§336.747</num><heading>Waste of International Origin</heading><content>The licensee may not receive or dispose of waste of international origin at a land disposal facility licensed under this chapter.</content><note type="source"><p>Source Note: The provisions of this §336.747 adopted to be effective June 7, 2012, 37 TexReg 4057.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c336/scI"><num value="I">SUBCHAPTER I</num><heading>COMPACT WASTE DISPOSAL FACILITY APPLICATION SELECTION PROCESS</heading><section identifier="/us/state/tx/tac/t30/p1/c336/scI/s336.801"><num value="336.801">§336.801</num><heading>Applicability</heading><content>(a) Initial license applications to receive, possess, and dispose of low-level radioactive waste from others at the compact waste disposal facility are subject to the application selection process set out in this subchapter. Applications for a license under this subchapter will be processed as set forth in this subchapter in addition to any procedural requirements applicable to radioactive material licensing in this title. In the event of a conflict between the procedural requirements of this subchapter and other procedural requirements in this title, the requirements of this subchapter shall prevail. The radioactive material license authorizing the receipt, possession, and disposal of low-level radioactive waste at the compact waste disposal facility must meet all of the requirements provided in Subchapter H of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste). The license authorizing the disposal of federal facility waste must meet the requirements of Subchapter J of this chapter (relating to Federal Facility Waste Disposal Facility) in addition to the requirements of Subchapter H of this chapter. License applications under Subchapters F and G of this chapter (relating to Licensing of Alternative Methods of Disposal of Radioactive Material, and Decommissioning Standards) are not subject to this subchapter.(b) This subchapter addresses the application selection process for the licensing of the disposal of low-level radioactive waste at the compact waste disposal facility. Applications for other authorizations and permits issued by the commission required by the compact waste disposal facility are not subject to the application selection process provided in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §336.801 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scI/s336.803"><num value="336.803">§336.803</num><heading>Receipt of License Applications</heading><content>(a) License applications subject to this subchapter will be received by the commission for a 30-day period, beginning 180 days after the date of the Texas Register notice publication for receipt of applications for the siting, construction, and operation of a compact waste disposal facility and a federal facility waste disposal facility, if applicable, for disposal of low-level radioactive waste. The executive director shall not evaluate applications received after the 30-day application period. (b) The commission shall post on its Web site the identity of all applicants filing applications and the Web address link required by §336.805 of this title (relating to Application Requirements.)</content><note type="source"><p>Source Note: The provisions of this §336.803 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scI/s336.805"><num value="336.805">§336.805</num><heading>Application Requirements</heading><content>In addition to the application requirements provided elsewhere in this title, an applicant for a license subject to this subchapter must:(1) comply with Texas Health and Safety Code, Chapter 401, the rules under this title, and any other applicable requirement in the executive director's discretion;(2) include a nonrefundable $500,000 application processing fee as provided in §336.103(a) of this title (relating to Schedule of Fees for Subchapter H Licenses);(3) provide evidence relating to the reasonableness of any technique for managing low-level radioactive waste to be practiced at the proposed land disposal facility or facilities including:(A) studies of alternate techniques of waste processing and reduction at the site of waste generation; and(B) studies of the use of aboveground isolation facilities; and(4) provide a complete copy of the application, including all amendments and/or supplements to the application, on a publicly accessible Web site, and provide the commission with the Web address link for the application materials.</content><note type="source"><p>Source Note: The provisions of this §336.805 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scI/s336.807"><num value="336.807">§336.807</num><heading>Administrative Review</heading><content>(a) Not later than the 45th day after the date an application is received under this subchapter, the executive director shall issue an administrative notice of deficiency to each applicant whose application is timely submitted, but is determined by the executive director to be administratively incomplete.(b) The executive director shall provide an applicant, for whom an administrative notice of deficiency is issued, not more than three 30-day opportunities to correct the noted deficiencies in the application. For each 30-day opportunity, the executive director will evaluate the information received in response to a notice of deficiency within 30 days. If the required information is not received from the applicant within 30 days of the date of receipt of the deficiency notice, the executive director shall return the incomplete application to the applicant.(c) The executive director shall reject any application that, after the period for correcting deficiencies has expired, is not administratively complete.(d) In determining if an application is administratively complete, the executive director shall consider whether the application contains sufficient information that will allow the technical review of the application, including, but not limited to:(1) the identity and qualifications of the applicant;(2) a description of the proposed land disposal facility or facilities and site;(3) a description of the character of the proposed activities and the types and quantities of waste to be managed at the disposal facility or facilities;(4) a description of the proposed schedules for construction, receipt of waste, and closure;(5) a description of the financial assurance mechanism to be used;(6) a description of the design features of the facility or facilities, along with a description of the methods of construction and operation of the facility or facilities;(7) a characterization of the area and site characteristics, including ecology, geology, soils, hydrology, natural radiation background, climatology, meteorology, demography, and current land uses;(8) a description of the safety programs to be used at the proposed land disposal facility or facilities;(9) a copy of the warranty deed or other conveyance showing that the right, title, and interest in the land on which the land disposal facility or facilities are proposed to be located is owned in fee by the applicant as required by Texas Health and Safety Code, §401.204;(10) an application processing fee of $500,000 as provided in §336.103(a) of this title (relating to Schedule of Fees for Subchapter H Licenses) and proof of additional funds sufficient to cover any further costs of processing the application as estimated by the commission; and(11) a copy of a resolution of support of the proposed land disposal facility or facilities from the commissioners court of the county in which the land disposal facility or facilities are proposed to be located.</content><note type="source"><p>Source Note: The provisions of this §336.807 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scI/s336.808"><num value="336.808">§336.808</num><heading>Ownership of Land and Buildings</heading><content>(a) A license application to receive, possess, and dispose of low-level radioactive waste from others at the compact waste disposal facility may not be considered administratively complete unless the applicant has acquired the title to and any interest in land and buildings on which the facility or facilities are to be located. Except as provided in subsection (b) or (c) of this section or for land and buildings already owned in fee by the state or federal government, the applicant must demonstrate ownership of an undivided interest in fee simple title of the land and buildings, including the surface and mineral estates, on which the land disposal facility or facilities are to be located. (b) If an applicant is unsuccessful in acquiring undivided ownership of the mineral estate in fee simple of the land on which the facility or facilities are proposed to be located, the applicant may, to the extent permissible under federal law, request an exemption of the requirement under §336.5 of this title (relating to Exemptions). The application for exemption must be submitted with the license application in order to satisfy the requirements of the administrative review of the application. In addition to the requirements of §336.5 of this title, the applicant must demonstrate that the surface use agreement is permissible under federal law and consistent with the Agreement Between the United States Nuclear Regulatory Commission And the State of Texas for Discontinuance of Certain Commission Regulatory Authority and Responsibility within the State Pursuant to Section 274 of the Atomic Energy Act of 1954, as amended. If the requirement of ownership of the mineral estate in fee simple title is exempted under this subsection, the applicant must have entered into a surface use agreement that restricts access to natural resources, including slant drilling and subsurface mining, to the extent necessary to prevent intrusion into the site. The surface use agreement shall prohibit the use of the surface in the development and access of the natural resources in perpetuity by the owner of the mineral estate, heirs, and successors and shall be assigned to and be enforceable by the state or federal government upon conveyance of the property under §336.710(2) of this title (relating to Institutional Information). (c) If an applicant cannot reach a surface use agreement and cannot otherwise obtain fee simple title to the mineral estate of the land on which the facility or facilities are proposed to be located, the applicant may petition the commission under §1.8 of this title (relating to Initiation of Proceeding) to request the attorney general to institute condemnation proceedings as provided under Texas Property Code, Chapter 21, to acquire fee simple interest in the mineral rights. The petition to request initiation of condemnation proceedings shall include a description of the communications between the applicant and the mineral estate interest owner, a demonstration of the applicant's good faith effort to acquire the mineral rights or to enter into a surface use agreement as provided in subsection (b) of this section, an appraisal of the fair market value of the mineral interest, a demonstration that the petitioner's application has been selected as the application with the highest technical merit under §336.813(d) of this title (relating to Evaluation of Applications), and a demonstration by the applicant of the ability to pay for all costs in obtaining the mineral interests in condemnation proceedings, including legal fees. The applicant shall provide a copy of the petition under this subsection to the owner of the mineral interest. If the petition is granted and the commission requests the attorney general to initiate condemnation proceedings, the applicant shall pay for all costs incurred by the commission in the process of obtaining the mineral interests, whether or not the mineral interests are successfully condemned.</content><note type="source"><p>Source Note: The provisions of this §336.808 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scI/s336.809"><num value="336.809">§336.809</num><heading>Notice of Declaration of Administrative Completeness</heading><content>When an application under this subchapter has been declared administratively complete, notice shall be provided under §39.702 of this title (relating to Notice of Declaration of Administrative Completeness). The applicant shall pay for all costs of issuing notice under this subchapter. The commission shall post on its Web site notice of the application(s) declared administratively complete.</content><note type="source"><p>Source Note: The provisions of this §336.809 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scI/s336.811"><num value="336.811">§336.811</num><heading>Public Meeting</heading><content>(a) The executive director shall conduct at least one public meeting in the county or counties where a compact waste disposal facility or federal facility waste disposal facility is proposed to be located to receive public comments on the administratively complete applications as provided in §55.253 of this title (relating to Public Comment Processing). The applicant shall pay for the costs of providing notice of the public meeting and for the costs of holding the public meeting.(b) The applicant shall publish notice of the public meeting in accordance with §39.405(f)(1) of this title (relating to General Notice Provisions), once each week during the three weeks preceding the public meeting. The notice shall include:(1) the applicant's name;(2) a description of the proposed activity;(3) the proposed location of the compact waste disposal facility;(4) the location and availability of the application;(5) the location, date, and time of the public meeting; and(6) the name, address, and telephone number of the contact person for the applicant from whom interested persons may obtain further information.(c) The chief clerk shall mail notice of the public meeting to persons listed in §39.413 of this title (relating to Mailed Notice).</content><note type="source"><p>Source Note: The provisions of this §336.811 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scI/s336.813"><num value="336.813">§336.813</num><heading>Evaluation of Applications</heading><content>(a) The executive director shall prepare a written evaluation of each administratively complete application in terms of the criteria established under §§336.815, 336.817, 336.819, and 336.821 of this title (relating to Tier 1 Criteria, Tier 2 Criteria, Tier 3 Criteria, and Tier 4 Criteria).(b) The executive director may issue a request for further information to each applicant whose administratively complete application is determined by the executive director to be insufficient for the purposes of the evaluation required in this section. An applicant, for whom a request for further information is issued, may be provided two 30-day opportunities to respond to the request at the discretion of the executive director.(c) The executive director shall use the written evaluations and application materials to evaluate each application according to the criteria established by §§336.815, 336.817, 336.819, and 336.821 of this title. The executive director shall evaluate each application for each criterion for purposes of comparing the relative merit of the application, giving:(1) equal weight to each criterion within a tier of criteria; and(2) the greatest weight to Tier 1 criteria, greater weight to Tier 2 criteria than to Tier 3 criteria, and the least weight to Tier 4 criteria.(d) Not later than the 270th day after receipt of the last timely filed application, the executive director, based on the written evaluations and application materials, shall select the application that has the highest comparative merit for technical review under §336.823 of this title (relating to Technical Review). If the selected application is rejected or denied by the commission, the executive director may select the application with the next highest comparative merit and proceed with the technical review under §336.823 of this title.</content><note type="source"><p>Source Note: The provisions of this §336.813 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scI/s336.815"><num value="336.815">§336.815</num><heading>Tier 1 Criteria</heading><content>(a) The commission shall consider as Tier 1 criteria:(1) the natural characteristics of the site for a proposed land disposal facility or facilities;(2) the adequacy of the proposed land disposal facility or facilities and activities to safely isolate, shield, and contain low-level radioactive waste from mankind and mankind's environment; and(3) the adequacy of financial assurance related to the proposed activities.(b) Natural characteristics of the site include:(1) the suitability of the site for the proposed activities, including the site's:(A) geological characteristics;(B) topography, including features relating to erosion;(C) surface and underground hydrology;(D) meteorological factors; and(E) natural hazards;(2) the compatibility of disposal activities with any uses of land near the site that could affect the natural performance of the site or that could affect monitoring of the land disposal facility or facilities and site;(3) the adequacy of plans for the collection of prelicense monitoring data and background monitoring plans for the site, including analysis of the ambient conditions of the site and established trends of the site's natural parameters, including:(A) natural background radioactivity levels;(B) radon gas levels;(C) air particulate levels;(D) soil characteristics, including chemical characteristics;(E) surface water and groundwater characteristics; and(F) flora and fauna at the site;(4) the possible effects of disposal activities on flora and fauna at or near the site; and(5) the ease of access to the site.(c) Adequacy of the proposed land disposal facility or facilities and activities includes:(1) the capability of the proposed land disposal facility or facilities and activities to isolate, shield, and contain low-level radioactive waste in conformity with federal standards;(2) acceptable operational safety; and(3) acceptable long-term safety as demonstrated by analysis or study.(d) Financial assurance criteria include:(1) adequacy of the applicant's financial qualifications to:(A) conduct the licensed activities as proposed, including:(i) any required decontamination, decommissioning, reclamation, or disposal; and(ii) control and maintenance of the site and land disposal facility or facilities after the cessation of active operations; and(B) address any unanticipated extraordinary events that would pose a risk to public health and safety and the environment and that may occur at the site after decommissioning and closure of the land disposal facility or facilities;(2) the adequacy of the applicant's financial assurance in an amount and type acceptable to the commission and adequate to cover potential injury to any property or person;(3) the adequacy of the applicant's financial security, as required by commission rules; and(4) the degree of certainty that the applicant will be able to maintain adequate financial security.</content><note type="source"><p>Source Note: The provisions of this §336.815 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scI/s336.817"><num value="336.817">§336.817</num><heading>Tier 2 Criteria</heading><content>The commission shall consider as Tier 2 criteria:(1) the suitability of land disposal facilities at the site that are associated with proposed activities and the adequacy of their engineering and design; and(2) the suitability of the proposed land disposal facility or facilities for the chemical, radiological, and biological characteristics of the low-level radioactive waste as classified under the system established under Texas Health and Safety Code, §401.053.</content><note type="source"><p>Source Note: The provisions of this §336.817 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scI/s336.819"><num value="336.819">§336.819</num><heading>Tier 3 Criteria</heading><content>The commission shall consider as Tier 3 criteria the applicant's:(1) technical qualifications to receive, store, process, and dispose of low-level radioactive waste;(2) experience in management and disposal of low-level radioactive waste and other radioactive materials;(3) previous operating practices in this state and elsewhere, including the practices of a parent, subsidiary, or affiliated entity of the applicant, related to radioactive materials;(4) record of compliance with environmental statutes, rules, and licenses in this state and in any other jurisdiction, including the records of a parent or subsidiary of the applicant, subject to Texas Health and Safety Code, §401.243;(5) training programs proposed for its employees whose duties relate to the proposed site and activities;(6) monitoring, recordkeeping, and reporting plans;(7) low-level radioactive waste spill detection and clean-up plans for the proposed site and activities;(8) decommissioning and post-closure plans;(9) security plans;(10) monitoring and protection plans for workers;(11) emergency plans;(12) plans for background monitoring during the license period, including analysis of the ambient conditions of the site and analysis of established trends of the site's natural parameters, including:(A) natural background radioactivity levels;(B) radon gas levels;(C) air particulate levels;(D) soil characteristics, including chemical characteristics;(E) surface water and groundwater characteristics; and(F) flora and fauna at the site; and(13) ability to adequately manage the proposed land disposal facility or facilities and activities for the term of the license.</content><note type="source"><p>Source Note: The provisions of this §336.819 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scI/s336.821"><num value="336.821">§336.821</num><heading>Tier 4 Criteria</heading><content>The commission shall consider as tier 4 criteria:(1) the compatibility of uses of land near the proposed site that could be affected by the construction and operation of the land disposal facility or facilities; and(2) possible socioeconomic effects on communities in the host county of:(A) the proposed land disposal facility or facilities;(B) the operation of the proposed land disposal facility or facilities; and(C) related transportation of low-level radioactive waste to the land disposal facility or facilities.</content><note type="source"><p>Source Note: The provisions of this §336.821 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scI/s336.823"><num value="336.823">§336.823</num><heading>Technical Review</heading><content>Upon selection of the application that has the highest comparative merit in accordance with §336.813 of this title (relating to Evaluation of Applications), the executive director shall begin the technical review of the selected application in accordance with §281.19 of this title (relating to Technical Review). The executive director shall give priority to the review of the selected application over all other radioactive materials licensing and registration matters pending before the commission. The executive director shall post on the commission Web site notice of the application selected for technical review.</content><note type="source"><p>Source Note: The provisions of this §336.823 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scI/s336.825"><num value="336.825">§336.825</num><heading>Delegation</heading><content>The commission delegates to the executive director the authority to review and evaluate applications for radioactive materials licenses under this subchapter and to select the one application under §336.813 of this title (relating to Evaluation of Applications) for further technical review. A decision by the executive director under §336.813 of this title is not appealable to the commission until the commission makes a final decision on the selected license application.</content><note type="source"><p>Source Note: The provisions of this §336.825 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c336/scJ"><num value="J">SUBCHAPTER J</num><heading>FEDERAL FACILITY WASTE DISPOSAL FACILITY</heading><section identifier="/us/state/tx/tac/t30/p1/c336/scJ/s336.901"><num value="336.901">§336.901</num><heading>Applicability</heading><content>This subchapter provides additional licensing requirements to the requirements of Subchapter H of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste); and other rules of this title for the disposal of federal facility waste at a separate land disposal facility on the same site. Applications for the licensing of the disposal of federal facility waste shall demonstrate compliance with the provisions of this subchapter in addition to other application requirements of this title. The commission may license federal facility waste disposal only at a separate and distinct land disposal facility on the same site that is operated exclusively for the disposal of federal facility waste and that is adjacent to the compact waste disposal facility.</content><note type="source"><p>Source Note: The provisions of this §336.901 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scJ/s336.903"><num value="336.903">§336.903</num><heading>Receipt of Waste</heading><content>(a) The compact waste disposal facility license holder may not accept federal facility waste for disposal unless the compact waste disposal facility license holder is licensed for the disposal of federal facility waste under the requirements of this subchapter and other licensing requirements of this title.(b) The licensee may not accept federal facility waste at a federal facility waste disposal facility until the licensee begins accepting compact waste at the compact waste disposal facility. "Begins accepting" means accepting compact waste at a licensed and constructed compact waste disposal facility that the executive director has approved for acceptance and disposal of low-level radioactive waste.</content><note type="source"><p>Source Note: The provisions of this §336.903 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scJ/s336.905"><num value="336.905">§336.905</num><heading>Volume Limitation</heading><content>(a) For the first five years after a license is issued under this subchapter, the license shall limit the overall capacity of the federal facility waste disposal facility to not more than 3,000,000 cubic yards. Of that amount, the total volume of low-level radioactive waste accepted at the federal facility waste disposal facility that must be disposed of in accordance with §336.730 of this title (relating to Near-Surface Land Disposal Facility Operation and Disposal Site Closure) shall be limited to not more than 300,000 cubic yards.(b) Upon application for license amendment under §305.62 of this title (relating to Amendment) and after five years from the date of licensing of the disposal of federal facility waste under this subchapter, the capacity of the federal facility waste disposal facility may be increased by 3,000,000 cubic yards for a total capacity of 6,000,000 cubic yards upon a determination by the commission that increasing the capacity of the federal facility waste disposal facility would not pose a significant risk to human health, public safety, or the environment. Of the increased amount, the volume of waste that must be disposed of in accordance with §336.730 of this title may be increased by not more than 300,000 cubic yards for a total volume of 600,000 cubic yards.</content><note type="source"><p>Source Note: The provisions of this §336.905 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scJ/s336.907"><num value="336.907">§336.907</num><heading>Prohibition of Commingling of Waste</heading><content>The commingling of compact waste and federal facility waste is prohibited. If licensed to dispose of federal facility waste, the licensee shall maintain separate waste transport, acceptance, storage, processing, and disposal of compact waste and federal facility waste.</content><note type="source"><p>Source Note: The provisions of this §336.907 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scJ/s336.909"><num value="336.909">§336.909</num><heading>Additional Responsibilities</heading><content>If licensed to dispose of federal facility waste, the licensee shall:(1) arrange for and pay the costs of management, control, stabilization, and disposal of federal facility waste and the decommissioning of the licensed federal facility waste disposal activity;(2) before accepting federal facility waste, submit to the commission a written agreement, acceptable to the executive director and signed by the United States secretary of energy, stating that the federal government will assume all right, title, and interest in land and buildings acquired under §336.710 of this title (relating to Institutional Information) for the disposal of federal facility waste, together with requisite rights of access to the land and buildings;(3) before termination of the license, formally convey to the federal government the right, title, and interest in federal facility waste located at the federal facility waste disposal facility;(4) transfer federal facility waste, land, and buildings to the federal government without cost to the state or federal government, other than the administrative and legal costs incurred in making the transfer; and(5) indemnify the state, and its officers and agents, for any liability imposed on the state under state or federal law for damages, removal, or remedial action with respect to the land, the facility, or the waste accepted, stored, or disposed of, because the transfer does not relieve a license holder of liability for any act or omission before or following the transfer. This indemnification does not relieve the license holder of providing financial assurance for decommissioning, institutional control, and after decommissioning, corrective action.</content><note type="source"><p>Source Note: The provisions of this §336.909 adopted to be effective January 8, 2004, 29 TexReg 150.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c336/scK"><num value="K">SUBCHAPTER K</num><heading>COMMERCIAL DISPOSAL OF NATURALLY OCCURRING RADIOACTIVE MATERIAL WASTE FROM PUBLIC WATER SYSTEMS</heading><section identifier="/us/state/tx/tac/t30/p1/c336/scK/s336.1001"><num value="336.1001">§336.1001</num><heading>Scope and General Provisions</heading><content>This subchapter establishes additional criteria, terms, and conditions under which the commission may issue, amend, or renew a license for commercial disposal of naturally occurring radioactive material waste from public water systems by injection into Class I injection wells.</content><note type="source"><p>Source Note: The provisions of this §336.1001 adopted to be effective July 21, 2005, 30 TexReg 4127.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scK/s336.1003"><num value="336.1003">§336.1003</num><heading>Definitions</heading><content>Most terms used in this subchapter are defined in §336.2 of this title (relating to Definitions). The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.(1) Commercial disposal--The disposal by well injection of naturally occurring radioactive material waste received by the licensee from other persons.(2) Naturally occurring radioactive material waste disposal facility--The land, buildings, structures, and equipment that are used in the disposal of naturally occurring radioactive material (NORM) waste. This includes the land, buildings and structures, and equipment used for the receipt, storage, processing, or handling of NORM waste for purposes of disposal.(3) Public water system--A public water system as defined in §290.38 of this title (relating to Definitions).(4) Site--The contiguous land area where any naturally occurring radioactive material (NORM) waste disposal facility or activity is physically located or conducted including adjacent land used in connection with the land disposal facility or activity, and includes soils and groundwater contaminated by radioactive material. Activity includes the receipt, storage, processing, or handling of radioactive material for purposes of disposal at a NORM waste disposal facility.</content><note type="source"><p>Source Note: The provisions of this §336.1003 adopted to be effective July 21, 2005, 30 TexReg 4127.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scK/s336.1005"><num value="336.1005">§336.1005</num><heading>Disposal Method</heading><content>A person licensed for the commercial disposal of naturally occurring radioactive material (NORM) waste from public water systems may dispose of NORM waste only by injection into a Class I injection well permitted under Chapter 331 of this title (relating to Underground Injection Control) that is specifically permitted for the disposal of NORM waste.</content><note type="source"><p>Source Note: The provisions of this §336.1005 adopted to be effective July 21, 2005, 30 TexReg 4127.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scK/s336.1007"><num value="336.1007">§336.1007</num><heading>License Application for Commercial Disposal of Naturally Occurring Radioactive Material Waste</heading><content>(a) In addition to other application requirements of this title, an applicant for a license to authorize commercial disposal of naturally occurring radioactive material (NORM) waste shall submit: (1) a projected inventory of radionuclides in the wastes to be disposed and the estimated concentration, specific activity, and total radioactivity by radionuclide; (2) the estimated frequency and volume of each disposal; (3) a description of waste packaging and other waste acceptance criteria; (4) a detailed description of the nonradiological constituents in the waste (e.g., hazardous wastes, metals, absorbents, acids, and chelating agents), including the chemical and physical characteristics of the waste; (5) a site characterization, including: (A) the identification of all soil layers by classification according to the Unified Soil Classification System, as described in the American Society for Testing and Materials standard D2487, Standard Classification of Soils for Engineering Purposes (Unified Soil Classification System); (B) a description of site stratigraphy from the surface to at least the base of the lower confining layer of the injection zone; (C) a description of potential geologic hazards, including faulting, seismic activity, sink holes, solution depressions, geopressurized zones, and flooding, including identification of the 100-year floodplain; (D) a description of applicable site hydrogeological data including: (i) identification of aquifers and confining units, including depths, saturated intervals, overall thicknesses, lithologies, and environments of deposition; (ii) the processes of recharge and discharge of site groundwaters; (iii) porosities and hydraulic conductivities; and (iv) hydraulic gradients, flow directions, and flow velocities; (E) identification of water wells within a one-mile radius of the facility, including location, use (e.g., commercial, livestock, drinking water, etc.), total depth, aquifer, and screened interval; (F) a description and analysis of surface water and surface drainage areas, including the location and identification of surface water bodies and wetlands and uses, if any; (G) a description and analysis of local meteorological data, including hourly, daily, and/or monthly averages of precipitation, evapotranspiration, temperature, wind speed and direction, relative humidity, and atmospheric stability over annual and quarterly periods; (H) maps and cross sections, as follows: (i) United States Geological Survey (USGS) 7.5-minute topographic map(s); (ii) Bureau of Economic Geology (BEG) Geologic Atlas of Texas map(s), or other site-specific surface geology map; (iii) United States Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS) soil map, or other site soil map; (iv) potentiometric surface maps of all aquifers; and (v) structural cross sections along dip and strike; (I) area resources (e.g., local land use, locations of nearby residences, etc.); (J) site performance history, including erosion, flooding, subsidence, etc.; and (K) a summary of any past disposals, including inventories of any radiological parameters, and any observed effects; (6) a description of the proposed design and construction of the NORM waste disposal facility; (7) a description of the proposed design and construction of the final closed NORM waste disposal facility and of proposed closure procedures; (8) information on the depth of NORM waste disposal and proposed operational and safety procedures for disposal of NORM waste; (9) proposed inspection, maintenance, and emergency procedures; (10) the applicant's radiological impact assessment consisting of modeling of radionuclide releases to site-specific critical exposure pathways and the projection of potential radiological doses to an individual on site and to a member of the public off site; (11) proposed radiation safety procedures during operations and closure. Proposed procedures must include: (A) administrative procedures; (B) operating procedures; (C) radiation safety program, including procedures for posting restricted areas, procedures for conducting surveys and monitoring, procedures for respiratory protection, procedures for worker protection and monitoring, and procedures for implementing controls to limit exposure in restricted areas; (D) procedures for decontamination of equipment and facilities; (E) industrial safety program; and (F) quality assurance/quality control procedures; (12) a description of proposed radiological monitoring of the site; (13) the organizational structure of the applicant, a description of lines of authority and assignment of responsibilities, and technical qualifications of personnel responsible for radiation safety functions; (14) information on the applicant's proposed methods of restricting access to the site (e.g., fencing) and proposed permanent site markers; (15) proposed recordkeeping procedures, including electronic recordkeeping as required in §336.1015 of this title (relating to Maintenance of Records and Reports); (16) information on land ownership and any covenants or restrictions on land use; (17) the applicant's justification for the proposed disposal method; and (18) a decommissioning plan that meets the standards in Subchapter G of this chapter (relating to Decommissioning Standards) including an evaluation of the alternatives to disposing of NORM waste at a licensed NORM waste disposal facility. (b) The applicant shall submit sufficient information to allow the executive director to assess the potential hazard to public health and safety and to determine whether the NORM waste disposal facility will have a significant impact on the environment as required under §336.1011 of this title (relating to Performance Objectives). (c) The applicant shall provide any other information that may be requested by the executive director.</content><note type="source"><p>Source Note: The provisions of this §336.1007 adopted to be effective July 21, 2005, 30 TexReg 4127.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scK/s336.1009"><num value="336.1009">§336.1009</num><heading>Standards for Issuance of a License, License Amendment, or License Renewal</heading><content>A license, license amendment, or license renewal for the receipt, storage, processing, and disposal of naturally occurring radioactive material (NORM) waste from public water systems may be issued by the commission upon finding that the issuance of the license will not constitute an unreasonable risk to the health and safety of the public or have a long-term detrimental impact on the environment and that:(1) the applicant is qualified by reason of training and experience to carry out the disposal operations requested in a manner that protects public health and safety and the environment;(2) the applicant's proposed NORM waste disposal facility siting, design, construction, operation, and closure are adequate to protect the public health and safety in that the facility will provide reasonable assurance that the general population will be protected from releases of radioactivity as specified under §336.1011 of this title (relating to Performance Objectives);(3) the applicant has provided reasonable assurance that the applicable technical requirements of this chapter will be met;(4) the financial assurance meets the requirements of this chapter;(5) the location of the NORM waste disposal facility is compatible with the uses of surrounding environs (both the applicant's and adjacent properties'); and(6) the applicant meets all additional applicable requirements under the rules of the commission.</content><note type="source"><p>Source Note: The provisions of this §336.1009 adopted to be effective July 21, 2005, 30 TexReg 4127.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scK/s336.1011"><num value="336.1011">§336.1011</num><heading>Performance Objectives</heading><content>(a) The performance objectives of this section apply to the naturally occurring radioactive material (NORM) waste disposal facility and any underground source of drinking water, as defined in §331.2 of this title (relating to Definitions), that may be impacted by activities at the NORM waste disposal facility. The performance objectives of this section do not apply to NORM waste in the injection zone as defined in §331.2 of this title.(b) Radiation exposure and release of radioactive materials from a NORM waste disposal facility must be maintained as low as is reasonably achievable (ALARA). Concentrations of radioactive material that may be released to the general environment in groundwater, surface water, air, soil, plants, or animals must not result in an annual dose above background exceeding an equivalent of 25 millirems to the whole body, 75 millirems to the thyroid, or 25 millirems to any other organ of any member of the public.(c) Operations at the NORM waste disposal facility must be conducted in compliance with the standards for radiation protection set out in Subchapter D of this chapter (relating to Standards for Protection Against Radiation), except for releases of radioactivity in effluents from the NORM waste disposal facility, which are governed by subsection (b) of this section. Analyses of the protection of individuals during operations must include assessments of expected doses due to routine operations and potential accidents during handling, storage, processing, and disposal of NORM waste.(d) The location and characteristics of a NORM waste disposal facility must preclude potential off-site migration or transport of radioactive materials or ready access to critical exposure pathways.(e) Pathways analyzed in demonstrating protection of the general population from releases of radioactivity must include air, soil, groundwater, surface water, plant uptake, and exhumation by animals.(f) A NORM waste disposal facility for which authorization is requested under this subchapter must be located, designed, constructed, operated, and closed so that long-term isolation and custodial care for long-term stability will not be required beyond the time the licensee occupies the NORM waste disposal facility.</content><note type="source"><p>Source Note: The provisions of this §336.1011 adopted to be effective July 21, 2005, 30 TexReg 4127.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scK/s336.1013"><num value="336.1013">§336.1013</num><heading>Terms and Conditions of License</heading><content>(a) At any time before termination of the license, the licensee shall submit written statements under oath upon request of the commission or executive director to enable the commission to determine whether or not the license should be modified, suspended, or revoked.(b) The licensee is subject to the applicable provisions of Texas Health and Safety Code, Chapter 401, also known as the Texas Radiation Control Act (TRCA) now or hereafter in effect and to applicable rules and orders of the commission. The terms and conditions of the license are subject to amendment, revision, or modification, by reason of amendments to the TRCA or by reason of rules and orders issued in accordance with terms of the TRCA.(c) Any license may be revoked, suspended, or modified, in whole or in part, for any material false statement in the application or any statement of fact required under provisions of the TRCA, or because of conditions revealed by any application or statement of fact or any report, record, or inspection or other means that would warrant the commission to refuse to grant a license on the original application, or for failure to operate the naturally occurring radioactive material (NORM) waste disposal facility in accordance with the terms of the license, or for any violation of or failure to observe any of the terms and conditions of the TRCA or the license or of any rule or order of the commission.(d) Each person licensed by the commission under this subchapter shall confine possession and use of NORM waste to the locations and purposes authorized in the license.(e) The licensee may not dispose of NORM waste at a NORM waste disposal facility until the licensee has submitted to the executive director by certified mail or hand delivery a letter signed by the licensee and a Texas licensed professional engineer stating that the NORM waste disposal facility has been constructed in compliance with the license and the application and the executive director has inspected the NORM waste disposal facility and finds it is in compliance with the conditions of the license and the application.(f) The licensee may not receive NORM waste for disposal at the NORM waste disposal facility until the executive director has approved the licensee's financial assurance in writing.(g) The commission may incorporate in any license at the time of issuance, or thereafter, by appropriate rule or order, additional requirements and conditions with respect to the licensee's receipt, possession, and disposal of waste as it deems appropriate or necessary in order to:(1) protect the health and safety of the public and the environment; or(2) require reports and recordkeeping and to provide for inspections of activities under the license that may be necessary or appropriate to effectuate the purposes of the TRCA and the rules adopted under the TRCA.(h) Each license may be issued for an initial term of ten years from the date of issuance. After the initial ten years, the commission may renew the license for one or more terms of ten years. The authority to dispose of radioactive material expires on the date stated in the license. In any case in which a licensee has timely filed an application for renewal of a license, the authority for continued receipt and disposal of licensed materials does not expire until the commission has taken final action on the application for renewal.</content><note type="source"><p>Source Note: The provisions of this §336.1013 adopted to be effective July 21, 2005, 30 TexReg 4127.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scK/s336.1015"><num value="336.1015">§336.1015</num><heading>Maintenance of Records and Reports</heading><content>(a) Each licensee shall maintain any records and submit any reports required by the conditions of the license, by the rules in this chapter, or by orders of the commission. Copies of any records or reports required by the license, rules, or orders must be submitted to the executive director or commission upon request. All records and reports required by the license, rules, or orders must be complete and accurate.(b) Records that are required by the rules in this chapter or by license conditions must be maintained for a period specified by the appropriate rules or by license condition. If a retention period is not otherwise specified, these records must be maintained and transferred to the executive director as specified in subsection (e) of this section as a condition of license termination unless the executive director otherwise authorizes their disposition.(c) Each record required by this chapter must be legible throughout the specified retention period. The record must be the original or a reproduced copy or a microform, provided that the copy or microform is authenticated by authorized personnel and that the microform is capable of producing a clear copy throughout the required retention period. The record may also be stored in electronic media with the capability for producing legible, accurate, and complete records during the required retention period. Records, such as letters, drawings, and specifications, must include all pertinent information, such as stamps, initials, and signatures. The licensee shall maintain adequate safeguards against tampering with and the loss of records.(d) If there is a conflict between the commission's rules, license condition, or other written approval or authorization from the executive director pertaining to the retention period for the same type of record, the longest retention period specified takes precedence.(e) Notwithstanding subsections (a) - (d) of this section, the licensee shall record the location, the quantity of wastes, and the radioactivity content by radionuclide of waste disposed and shall transfer these records upon license termination to the executive director and to such other government agencies or officials as designated by the commission.(f) The licensee shall maintain copies of waste manifests of shipments received at the disposal facility. Following receipt and acceptance of a shipment of naturally occurring radioactive material (NORM) waste, the licensee shall record the date that the shipment was received at the disposal facility; the date of disposal of the NORM waste; a traceable shipment manifest number; the containment integrity of the NORM waste disposal containers as received; any discrepancies between materials listed on the manifest and those received; the volume of any pallets, bracing, or other shipping materials, or of materials generated on site, that are contaminated and are disposed of as contaminated or suspect materials; and any evidence of leaking or damaged disposal containers or radiation or contamination levels in excess of limits specified in rules of the United States Department of Transportation or the Department of State Health Services. The licensee shall briefly describe any repackaging operations of any of the disposal containers included in the shipment, plus any other information required by the commission as a license condition. The licensee shall retain these records until the commission transfers or terminates the license that authorizes the activities described in this section.(g) Each licensee authorized to dispose of NORM waste received from other persons shall file a copy of its financial report or a certified financial statement annually with the executive director in order to update the information base for determining financial qualifications.(h) Annual reports must be submitted.(1) Each licensee authorized to dispose of NORM waste received from other persons under this subchapter shall submit annual reports to the executive director. Reports must be submitted by the end of the first calendar quarter of each year for the preceding year.(2) The annual reports must include:(A) specification of the quantity of each radionuclide released to unrestricted areas in liquid and in airborne effluents during the preceding year;(B) the results of the environmental monitoring program;(C) a summary of radioactivities and quantities of radionuclides disposed of;(D) any instances in which observed site characteristics were significantly different from those described in the application for a license; and(E) any other information that the executive director may require.(3) If the quantities of radioactive materials released during the reporting period, monitoring results, or maintenance performed are significantly different from those expected in the documents previously reviewed as part of the licensing action, the annual report must cover this specifically.(i) An electronic recordkeeping system must be maintained. In addition to the other requirements of this section, the licensee shall store, or have stored, manifest and other information pertaining to receipt and disposal of NORM waste in an electronic recordkeeping system that is available for review by commission inspectors.</content><note type="source"><p>Source Note: The provisions of this §336.1015 adopted to be effective July 21, 2005, 30 TexReg 4127.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scK/s336.1017"><num value="336.1017">§336.1017</num><heading>Tests at Naturally Occurring Radioactive Material Waste Disposal Facilities</heading><content>Each licensee shall perform or allow the executive director to perform any tests that the executive director deems appropriate or necessary for the administration of the rules in this chapter during normal working hours, including tests of:(1) wastes and facilities used for the receipt, storage, processing, handling, and disposal of wastes;(2) radiation detection and monitoring instruments; and(3) other equipment and devices used in connection with the receipt, possession, handling, processing, storage, or disposal of waste.</content><note type="source"><p>Source Note: The provisions of this §336.1017 adopted to be effective July 21, 2005, 30 TexReg 4127.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scK/s336.1019"><num value="336.1019">§336.1019</num><heading>Liability Coverage and Funding for Naturally Occurring Radioactive Material Waste Disposal Facility Closure and Stabilization</heading><content>(a) The applicant shall provide assurance 60 days prior to the initial receipt of waste that sufficient funds will be available to carry out closure and stabilization of the naturally occurring radioactive material (NORM) waste disposal facility, including:(1) decontamination or dismantlement of NORM waste disposal facility structures;(2) disposal of any radioactive material remaining at the NORM waste disposal facility at closure; and(3) closure and stabilization of the NORM waste disposal facility so that the site may be released for unrestricted use.(b) The assurance must be based on cost estimates approved by the executive director that reflect the approved plan for closure and stabilization of the NORM waste disposal facility. The applicant's cost estimates must take into account total costs that would be incurred if an independent contractor were hired to perform the closure and stabilization work.(c) Financial assurance mechanisms submitted to comply with subsection (a) of this section must meet the requirements specified in Chapter 37, Subchapter S of this title (relating to Financial Assurance for Radioactive Material). The licensee's financial assurance mechanism and cost estimates must be reviewed by the executive director annually to assure that sufficient funds are available for completion of the closure plan, assuming that the work has to be performed by an independent contractor.(d) The amount of financial assurance must be adjusted as required to meet the predicted cost of future closure and stabilization. Factors affecting cost estimates for closure and stabilization include inflation, increases in the amount of disturbed land, changes in engineering plans, closure and stabilization that have already been accomplished, and any other conditions affecting costs. The closure amount must be at least sufficient at all times to cover the costs of closure of the NORM waste disposal facility.(e) Sixty days prior to the initial receipt of NORM waste, the licensee shall establish and maintain financial assurance for liability coverage for sudden and nonsudden bodily injury and property damage to third parties caused by accidental occurrences arising from operations of the NORM waste disposal facility that meets the requirements of this subsection, in addition to the requirements specified under Chapter 37, Subchapters A, E, F, and G of this title (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Liability Coverage; Financial Assurance Mechanisms for Liability; and Wording of the Mechanisms for Liability, respectively).(1) A licensee shall establish and maintain liability coverage for sudden accidental occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs.(2) A licensee shall establish and maintain liability coverage for nonsudden accidental occurrences in the amount of at least $3 million per occurrence with an annual aggregate of at least $6 million, exclusive of legal defense costs.(3) A licensee who combines coverage for sudden and nonsudden accidental occurrences shall maintain liability coverage in the amount of at least $4 million per occurrence and $8 million annual aggregate.(4) A licensee may use any of the mechanisms specified in Chapter 37, Subchapter F of this title to demonstrate financial assurance for sudden and nonsudden liability.(5) A licensee may not use a claims-made insurance policy as security unless the licensee places in escrow, as provided by the executive director, an amount sufficient to pay an additional year of premium for renewal of the policy by the state on notice of termination of coverage.</content><note type="source"><p>Source Note: The provisions of this §336.1019 adopted to be effective July 21, 2005, 30 TexReg 4127.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c336/scL"><num value="L">SUBCHAPTER L</num><heading>LICENSING OF SOURCE MATERIAL RECOVERY AND BY-PRODUCT MATERIAL DISPOSAL FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1101"><num value="336.1101">§336.1101</num><heading>Purpose</heading><content>This subchapter provides for the specific licensing of the receipt, possession, use, or disposal of radioactive material in source material recovery facilities and other operations that accept by-product material for disposal. No person may engage in such activities except as authorized in a specific license issued in accordance with this subchapter.</content><note type="source"><p>Source Note: The provisions of this §336.1101 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1103"><num value="336.1103">§336.1103</num><heading>Scope</heading><content>In addition to the requirements of this subchapter, all licensees, unless otherwise specified, are subject to the requirements of Subchapters A - E of this chapter.</content><note type="source"><p>Source Note: The provisions of this §336.1103 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1105"><num value="336.1105">§336.1105</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.(1) Aquifer--A geologic formation, group of formations, or part of a formation capable of yielding a significant amount of groundwater to wells or springs. Any saturated zone created by uranium or thorium recovery operations would not be considered an aquifer unless the zone is or potentially is:(A) hydraulically interconnected to a natural aquifer;(B) capable of discharge to surface water; or(C) reasonably accessible because of migration beyond the vertical projection of the boundary of the land transferred for long-term government ownership and care in accordance with §336.1131 of this title (relating to Land Ownership of By-Product Material Disposal Sites).(2) As expeditiously as practicable considering technological feasibility--As quickly as possible considering the physical characteristics of the by-product material and the site, the limits of "available technology" (as defined in this section), the need for consistency with mandatory requirements of other regulatory programs, and "factors beyond the control of the licensee" (as defined in this section). The phrase permits consideration of the cost of compliance only to the extent specifically provided for by use of the term "Available technology."(3) Available technology--Technologies and methods for emplacing a final radon barrier on by-product material piles or impoundments. This term must not be construed to include extraordinary measures or techniques that would impose costs that are grossly excessive as measured by practice within the industry (or one that is reasonably analogous), (for example, by way of illustration only, unreasonable overtime, staffing, or transportation requirements, etc., considering normal practice in the industry; laser fusion of soils; etc.), provided there is reasonable progress toward emplacement of the final radon barrier. To determine grossly excessive costs, the relevant baseline against which costs must be compared is the cost estimate for tailings impoundment closure contained in the licensee's approved reclamation plan, but costs beyond these estimates shall not automatically be considered grossly excessive.(4) By-product material--Tailings or wastes produced by or resulting from the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content, including discrete surface wastes resulting from uranium solution extraction processes. Underground ore bodies depleted by such solution extraction operations do not constitute "by-product material" within this definition.(5) By-product material disposal cell--A man-made excavation and/or construction designed, sited, and built in accordance with the requirements of §336.1129 of this title (relating to Technical Requirements) for the purpose of disposal of by-product material.(6) By-product material pond--A man-made excavation designed, constructed, and sited in accordance with the requirements of §336.1129 of this title (relating to Technical Requirements).(7) Capable fault--As used in this section, "Capable fault" has the same meaning as defined in Section III(g) of Appendix A of Title 10 Code of Federal Regulations (CFR) Part 100.(8) Closure--The post-operational activities to decontaminate and decommission the buildings and site used to produce by-product materials and/or reclaim the tailings or disposal area, including groundwater restoration, if needed.(9) Closure plan--The plan approved by the agency to accomplish closure. The closure plan consists of a decommissioning plan and may also include a reclamation plan.(10) Commencement of construction--Initiating activity defined as "construction" or any other activity at the site of a facility subject to regulations in this subchapter that has a reasonable nexus to radiological health and safety.(11) Compliance period--The period of time that begins when the agency sets secondary groundwater protection standards and ends when the owner or operator's license is terminated and the site is transferred to the state or federal government for long-term care, if applicable.(12) Construction--The installation of wells associated with radiological operations (e.g., production, injection, or monitoring well networks associated with in-situ recovery or other facilities), the installation of foundations, or in place assembly, erection, fabrication, or testing for any structure, system, or component of a facility or activity subject to the regulations in this part that are related to radiological safety or security. The term "construction" does not include:(A) changes for the temporary use of the land for public recreational purposes;(B) site exploration, including necessary borings to determine foundation conditions or other preconstruction monitoring to establish background information related to the suitability of a site, the environmental impacts of construction or operation, or the protection of environmental values;(C) preparation of the site for construction of the facility, including clearing of the site, grading, installation of drainage, erosion and other environmental mitigation measures, and construction of temporary roads and borrow areas;(D) erection of fences and other access control measures that are not related to the safe use of, or security of, radiological materials subject to this part;(E) excavation;(F) erection of support buildings (e.g., construction equipment storage sheds, warehouse and shop facilities, utilities, concrete mixing plants, docking and unloading facilities, and office buildings) for use in connection with the construction of the facility;(G) building of service facilities (e.g., paved roads, parking lots, railroad spurs, exterior utility and lighting systems, potable water systems, sanitary sewerage treatment facilities, and transmission lines);(H) procurement or fabrication of components or portions of the proposed facility occurring at other than the final, in-place location at the facility; or(I) initiating activity that has no reasonable nexus to radiological health and safety.(13) Decommissioning plan--The plan approved by the agency to accomplish decommissioning. Decommission is defined in §336.2(29) of this title (relating to Definitions).(14) Dike--An embankment or ridge of either natural or man-made materials used to prevent the movement of liquids, sludges, solids, or other materials.(15) Disposal area--The area containing by-product materials to which the requirements of §336.1129(p) - (aa) of this title (relating to Technical Requirements) apply.(16) Existing portion--As used in §336.1129(i)(1) of this title (relating to Technical Requirements), "existing portion" is that land surface area of an existing surface impoundment on which significant quantities of uranium or thorium by-product materials had been placed prior to September 30, 1983.(17) Factors beyond the control of the licensee--Factors proximately causing delay in meeting the schedule in the applicable reclamation plan for the timely emplacement of the final radon barrier notwithstanding the good faith efforts of the licensee to complete the barrier in compliance with §336.1129(x) of this title (relating to Technical Requirements). These factors may include, but are not limited to:(A) physical conditions at the site;(B) inclement weather or climatic conditions;(C) an act of God;(D) an act of war;(E) a judicial or administrative order or decision, or change to the statutory, regulatory, or other legal requirements applicable to the licensee's facility that would preclude or delay the performance of activities required for compliance;(F) labor disturbances;(G) any modifications, cessation or delay ordered by state, federal, or local agencies;(H) delays beyond the time reasonably required in obtaining necessary government permits, licenses, approvals, or consent for activities described in the reclamation plan proposed by the licensee that result from government agency failure to take final action after the licensee has made a good faith, timely effort to submit legally sufficient applications, responses to requests (including relevant data requested by the agencies), or other information, including approval of the reclamation plan; and(I) an act or omission of any third party over whom the licensee has no control.(18) Final radon barrier--The earthen cover (or approved alternative cover) over by-product material constructed to comply with §336.1129(p) - (aa) of this title (relating to Technical Requirements) (excluding erosion protection features).(19) Groundwater--Water below the land surface in a zone of saturation. For purposes of this subchapter, groundwater is the water contained within an aquifer as defined in this section.(20) Hazardous constituent--Subject to §336.1129(j)(5) of this title (relating to Technical Requirements), "hazardous constituent" is a constituent that meets all three of the following tests:(A) the constituent is reasonably expected to be in or derived from the by-product material in the disposal area;(B) the constituent has been detected in the groundwater in the uppermost aquifer; and(C) the constituent is listed in 10 Code of Federal Regulations Part 40, Appendix A, Criterion 13.(21) In situ leach--Refers to the actual oxidation and dissolution of uranium in an underground formation.(22) In situ recovery--Refers to the process of stripping, precipitating, de-watering, and drying uranium in a surface processing plant.(23) Leachate--Any liquid, including any suspended or dissolved components in the liquid, that has percolated through or drained from the by-product material.(24) Licensed site--The area contained within the boundary of a location under the control of persons generating or storing by-product materials under a license.(25) Liner--A continuous layer of natural or man-made materials, beneath or on the sides of a surface impoundment that restricts the downward or lateral escape of by-product material, hazardous constituents, or leachate.(26) Maximum credible earthquake--That earthquake that would cause the maximum vibratory ground motion based upon an evaluation of earthquake potential considering the regional and local geology and seismology and specific characteristics of local subsurface material.(27) Milestone--An action or event that is required to occur by an enforceable date.(28) Operation--(A) the period of time during which a by-product material disposal area is being used for the continued placement of by-product material or is in standby status for such placement. A disposal area is in operation from the day that by-product material is first placed in it until the day final closure begins; and(B) the period of time during which an in situ leach uranium recovery operation is actively leaching or recovering uranium.(29) Point of compliance--The site-specific location in the uppermost aquifer where the groundwater protection standard shall be met. The objective in selecting the point of compliance is to provide the earliest practicable warning that an impoundment is releasing hazardous constituents to the groundwater. The point of compliance is selected to provide prompt indication of groundwater contamination on the hydraulically downgradient edge of the disposal area.(30) Principal activities--Activities authorized by the license that are essential to achieving the purpose(s) for which the license is issued or amended. Storage during which no licensed material is accessed for use or disposal and activities incidental to decontamination or decommissioning are not principal activities.(31) Reclamation--Those activities at a uranium recovery licensed facility that work towards achieving the criteria under this subchapter for release of equipment, facilities and/or the site (including land) to unrestricted use or termination of the license.(32) Reclamation plan--(A) for the purposes of paragraph (22) of this section and §336.1115 of this title (relating to In situ recovery and Expiration and Termination of Licenses; Decommissioning of Sites; Separate Buildings or Outdoor Areas, respectively), "reclamation plan" is the plan detailing activities to accomplish reclamation of the licensed site (land surface) where in situ recovery and related activities are licensed to occur. The reclamation plan shall include a schedule for reclamation milestones that are key to the clean-up of the in situ recovery plant location, well fields, and any by-product waste storage location; or(B) for the purposes of §336.1129(p) - (aa) of this title (relating to Technical Requirements), "reclamation plan" is the plan detailing activities to accomplish reclamation of the by-product material disposal area in accordance with the technical criteria of this section. The reclamation plan shall include a schedule for reclamation milestones that are key to the completion of the final radon barrier, including as appropriate, but not limited to, windblown tailings retrieval and placement on the pile, interim stabilization (including dewatering or the removal of freestanding liquids and recontouring), and final radon barrier construction. Reclamation of by-product material shall also be addressed in the closure plan. The detailed reclamation plan may be incorporated into the closure plan.(33) Restoration--Those activities that seek to return the groundwater at an underground injection control permitted site to restoration levels established by permit.(34) Security--This term has the same meaning as financial assurance.(35) Surface impoundment--A natural topographic depression, man-made excavation, or diked area at a conventional uranium mill, which is designed to receive waste from the milling process which may contain liquid wastes or wastes containing free liquids, solid wastes, mill site demolition materials and debris, and other by-product materials from the milling site.(36) Unrefined and unprocessed ore--Ore in its natural form before any processing, such as grinding, roasting, beneficiating, or refining. Processing does not include sieving or encapsulation of ore or preparation of samples for laboratory analysis.(37) Uppermost aquifer--The geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected with this aquifer within the facility's property boundary.(38) Uranium recovery--Any uranium extraction or concentration activity that results in the production of "by-product material" as it is defined in this chapter and as it pertains to uranium ore only. As used in this definition, "Uranium recovery" has the same meaning as "uranium milling" in 10 Code of Federal Regulations §40.4.</content><note type="source"><p>Source Note: The provisions of this §336.1105 adopted to be effective February 28, 2008, 33 TexReg 1570; amended to be effective March 12, 2009, 34 TexReg 1688; amended to be effective December 8, 2016, 41 TexReg 9583.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1107"><num value="336.1107">§336.1107</num><heading>Filing Application for Specific Licenses</heading><content>Unless otherwise specified, an applicant for a license is subject to the requirements in §336.205 of this title (relating to Application Requirements). The applicant shall also comply with the following additional filing requirements.(1) Applications for specific licenses shall be filed in seven copies in a manner specified by the agency.(2) Each applicant shall demonstrate to the agency that the applicant is financially qualified to conduct the licensed activity, including any required decontamination, decommissioning, reclamation, and disposal, before the agency issues or renews a license by posting security as required under §336.1125 of this title (relating to Financial Security Requirements).(3) An application for a license shall contain written specifications relating to the source material recovery facility operations and the disposition of the by-product material.(4) Each application shall clearly demonstrate how the requirements of §§336.1107, 336.1109, 336.1111, 336.1113, 336.1125, 336.1127, 336.1129, and 336.1131 of this title (relating to Filing Application for Specific Licenses; General Requirements for the Issuance of Specific Licenses; Special Requirements for a License Application for Source Material Recovery and By-Product Material Disposal Facilities; Specific Terms and Conditions of Licenses; Financial Security Requirements; Long-Term Care and Maintenance Requirements; Technical Requirements; and Land Ownership of By-Product Material Disposal Sites) have been addressed.(5) Applications for new licenses shall be processed in accordance with Chapter 281 of this title (relating to Applications Processing).</content><note type="source"><p>Source Note: The provisions of this §336.1107 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1109"><num value="336.1109">§336.1109</num><heading>General Requirements for the Issuance of Specific Licenses</heading><content>A license application may be approved if the agency determines that the applicant has met the requirements of §336.207 of this title (relating to General Requirements for Issuance of a License) and the following:(1) qualifications of the designated radiation safety officer as stated in §336.208 of this title (relating to Radiation Safety Officer); and(2) the applicant satisfies all applicable special requirements in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §336.1109 adopted to be effective February 28, 2008, 33 TexReg 1570; amended to be effective March 12, 2009, 34 TexReg 1688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1111"><num value="336.1111">§336.1111</num><heading>Special Requirements for a License Application for Source Material Recovery and By-product Material Disposal Facilities</heading><content>In addition to the requirements in §336.1109 of this title (relating to General Requirements for the Issuance of Specific Licenses), a license may be issued if the applicant submits the items in paragraph (1) of this section for agency approval and meets the conditions in paragraphs (2) and (3) of this section.(1) An application for a license must include the following:(A) for new licenses, an environmental report that includes the results of a one-year preoperational monitoring program and for renewal of licenses, an environmental report containing the results of the operational monitoring program. Both must also include the following:(i) description of the proposed project or action;(ii) area/site characteristics including ecology, geology, topography, hydrology, meteorology, historical and cultural landmarks, and archaeology;(iii) radiological and nonradiological impacts of the proposed project or action, including waterway and groundwater impacts and any long-term impacts;(iv) environmental effects of accidents;(v) by-product material disposal, decommissioning, decontamination, and reclamation and impacts of these activities; and(vi) site and project alternative;(B) a closure plan for decontamination, decommissioning, restoration, and reclamation of buildings and the site to levels that would allow unrestricted use and for reclamation of the by-product material disposal areas in accordance with the technical requirements of §336.1129 of this title (relating to Technical Requirements);(C) proposal of an acceptable form and amount of financial security consistent with the requirements of §336.1125 of this title (relating to Financial Assurance Requirements);(D) procedures describing the means employed to meet the requirements of §336.1113(1) and (2) of this title (relating to Specific Terms and Conditions of Licenses) and §336.1129(o) of this title during the operational phase of any project;(E) specifications for the emissions control and disposition of the by-product material;(F) for disposal of by-product material received from others, information on the chemical and radioactive characteristics of the wastes to be received, detailed procedures for receiving and documenting incoming waste shipments, and detailed waste acceptance criteria;(G) an adequate operating, radiation safety, and emergency procedures manual; and(H) for applications for a new license or applications for license amendments to expand the licensed site, proof of mailed notification to the owner or owners of the real property on which radioactive substances are recovered, stored, processed or disposed. The application for a new license must demonstrate that the owner or owners of the real property were sent by certified and regular United States mail, notification from the applicant stating that:(i) radioactive substances will be recovered, stored, processed or disposed on the property; and(ii) decommissioning by the agency, a surety, or as directed by order may be required and performed on the licensed site even if the licensee is unable or fails to decommission the licensed site as required by a license, rule or order of the commission.(2) Except as provided in this section, the applicant shall not commence construction at the site until the agency has issued the license. Commencement of construction prior to issuance of the license shall be grounds for denial of a license. For an application for a new license to dispose of by-product material that was filed with the Texas Department of State Health Services on or before January 1, 2007, the applicant may commence construction as provided in §336.1135 of this title (relating to Construction Activities), at the applicant's own risk, upon the executive director's issuance of the Environmental Analysis provided under §281.21(f) of this title (relating to Draft Permit, Technical Summary, Fact Sheet, and Compliance History).(3) An application for a license must be submitted according to the applicable requirements of the Texas Engineering Practice Act, the Texas Geoscience Practice Act, and the Professional Land Surveying Practices Act.</content><note type="source"><p>Source Note: The provisions of this §336.1111 adopted to be effective February 28, 2008, 33 TexReg 1570; amended to be effective June 25, 2015, 40 TexReg 3996.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1113"><num value="336.1113">§336.1113</num><heading>Specific Terms and Conditions of Licenses</heading><content>Unless otherwise specified, each license issued in accordance with this section is subject to the requirements of §305.125 of this title (relating to Standard Permit Conditions) and the following.(1) Daily inspection of any by-product material retention systems shall be conducted by the licensee. General qualifications for individuals conducting inspections shall be approved by the agency. Records of the inspections shall be maintained for review by the agency.(2) In addition to the applicable requirements of §336.350 and §336.352 of this title (relating to Reports of Stolen, Lost, or Missing Licensed Radioactive Material and Reports of Exposures, Radiation Levels, and Concentrations of Radioactive Material Exceeding the Limits), the licensee shall immediately notify the agency of the following:(A) any failure in a by-product material retention system that results in a release of by-product material into unrestricted areas or of any unusual conditions (conditions not contemplated in the design of the retention system) that if not corrected could indicate the potential or lead to failure of the system and result in a release of by-product material into unrestricted areas;(B) any release of radioactive material that exceeds the concentrations for water listed in Table II, Column 2, of §336.359 of this title (relating to Appendix B. Annual Limits in Intake (ALI) and Derived Air Concentrations (DAC) of Radionuclides for Occupational Exposure; Effluent Concentrations; Concentrations for Release to Sanitary Sewerage) and that extends beyond the licensed boundary;(C) any spill that exceeds 20,000 gallons and that exceeds the concentrations for water listed in Table II, Column 2, of §336.359 of this title; or(D) any release of solids that exceeds the limits in §336.1115(e) of this title (relating to Expiration and Termination of Licenses; Decommissioning of Sites, Separate Buildings or Outdoor Areas) and that extends beyond the licensed boundary.(3) In addition to the applicable requirements of Chapter 327 of this title (relating to Spill Prevention and Control) and §336.350 and §336.352 of this title, the licensee shall notify the agency within 24 hours of the following:(A) any spill that extends:(i) beyond the wellfield monitor well ring;(ii) more than 400 feet from an injection or production well pipe artery to or from a recovery plant; or(iii) more than 200 feet from a recovery plant; or(B) any spill that exceeds 2,000 gallons and that exceeds the concentrations for water listed in Table II, Column 2, of §336.359 of this title.(4) A written report to the executive director within 30 days after learning of the occurrence of a spill as described in subparagraph (A) or (B) of this paragraph. The report shall include the following:(A) location of the spill;(B) cause of the spill;(C) corrective steps taken or planned to ensure against a recurrence; and(D) timely schedule for remediation of the spill or release, if required.(5) At any time before termination of the license, the licensee shall submit written statements under oath upon request of the commission or executive director to enable the commission to determine whether or not the license should be modified, suspended, or revoked.(6) The licensee shall be subject to the applicable provisions of Texas Health and Safety Code, Chapter 401, also known as the Texas Radiation Control Act (TRCA) now or hereafter in effect and to applicable rules and orders of the commission. The terms and conditions of the license are subject to amendment, revision, or modification, by reason of amendments to TRCA or by reason of rules and orders issued in accordance with terms of TRCA.(7) Any license may be revoked, suspended, or modified, in whole or in part, for any material false statement in the application or any statement of fact required under provisions of TRCA, or because of conditions revealed by any application or statement of fact or any report, record or inspection or other means that would warrant the commission to refuse to grant a license on the original application, or for failure to operate the facility in accordance with the terms of the license, or for any violation of or failure to observe any of the terms and conditions of TRCA or the license or of any rule or order of the commission.(8) Each person licensed by the commission under this subchapter shall confine possession and use of radioactive materials to the locations and purposes authorized in the license.(9) No by-product may be disposed of until the executive director has inspected the facility and has found it to be conformance with the description, design, and construction described in the application for a by-product disposal license. No by-product may be received for disposal at the facility until the executive director has approved financial assurance.(10) The commission may incorporate in any license at the time of issuance, or thereafter, by appropriate rule or order, additional requirements or conditions with respect to the licensee's receipt, possession, or disposal of by-product as it deems appropriate or necessary in order to:(A) protect the health and safety of the public and the environment; or(B) require reports and recordkeeping and to provide for inspections of activities under the licenses that may be necessary or appropriate to effectuate the purposes of TRCA and rules thereunder.</content><note type="source"><p>Source Note: The provisions of this §336.1113 adopted to be effective February 28, 2008, 33 TexReg 1570; amended to be effective March 12, 2009, 34 TexReg 1688; amended to be effective December 8, 2016, 41 TexReg 9583.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1115"><num value="336.1115">§336.1115</num><heading>Expiration and Termination of Licenses; Decommissioning of Sites, Separate Buildings or Outdoor Areas</heading><content>(a) The term of the specific license is for a fixed term not to exceed ten years. (b) Expiration of the specific license does not relieve the licensee of the requirements of this chapter. (c) All license provisions continue in effect beyond the expiration date with respect to possession of radioactive material until the agency notifies the former licensee in writing that the provisions of the license are no longer binding. During this time, the former licensee must: (1) be limited to actions involving radioactive material that are related to decommissioning; and (2) continue to control entry to restricted areas until the location(s) is suitable for release for unrestricted use in accordance with the requirements of subsection (e) of this section. (d) Within 60 days of the occurrence of any of the following, each licensee must provide notification to the agency in writing and either begin decommissioning its site, or any separate buildings or outdoor areas that contain residual radioactivity in accordance with the closure plan in §336.1111(1)(B) of this title (relating to Special Requirements for a License Application for Source Material Recovery and By-product Material Disposal Facilities), so that the buildings or outdoor areas are suitable for release in accordance with subsection (e) of this section if: (1) the license has expired in accordance with subsection (a) of this section; or (2) the licensee has decided to permanently cease principal activities, as defined in §336.1105(30) of this title (relating to Definitions), at the entire site or in any separate building or outdoor area; or (3) no principal activities have been conducted for a period of 24 months in any building or outdoor area that contains residual radioactivity such that the building or outdoor area is unsuitable for release in accordance with agency requirements. (e) Outdoor areas are considered suitable for release for unrestricted use if the following limits are not exceeded. (1) The concentration of radium-226 or radium-228 (in the case of thorium by-product material) in soil, averaged over any 100 square meters (m2 ), may not exceed the background level by more than: (A) 5 picocuries per gram (pCi/g) (0.185 becquerel per gram (Bq/g)), averaged over the first 15 centimeters (cm) of soil below the surface; and (B) 15 pCi/g (0.555 Bq/g), averaged over 15 cm thick layers of soil more than 15 cm below the surface. (2) The contamination of vegetation may not exceed 5 pCi/g (0.185 Bq/g), based on dry weight, for radium-226 or radium-228. (3) By-product material containing concentrations of radionuclides other than radium in soil (e.g., natural uranium, natural thorium, lead-210), and surface activity on remaining structures, must not result in a total effective dose equivalent (TEDE) exceeding the dose from cleanup of radium contaminated soil to the standard in paragraph (1) of this subsection (radium benchmark dose), and must be at levels which are as low as reasonably achievable. If more than one residual radionuclide is present in the same 100 m2 area, the sum of the ratios for each radionuclide of concentration present to the calculated radium benchmark dose equivalent concentration limits will not exceed "1" (unity). A calculation of the potential peak annual TEDE within 1,000 years to the average member of the critical group that would result from applying the radium standard (not including radon) must be submitted for approval, using the United States Nuclear Regulatory Commission (NRC) staff guidance on the Radium Benchmark Dose Approach.(f) Coincident with the notification required by subsection (c) of this section, the licensee shall maintain in effect all decommissioning financial security established by the licensee in accordance with §336.1125 of this title (relating to Financial Assurance Requirements) in conjunction with a license issuance or renewal or as required by this section. The amount of the financial security must be increased, or may be decreased, as appropriate, with agency approval, to cover the detailed cost estimate for decommissioning established in accordance with subsection (l)(5) of this section.(g) In addition to the provisions of subsection (h) of this section, each licensee must submit an updated closure plan to the agency within 12 months of the notification required by subsection (d) of this section. The updated closure plan must meet the requirements of §336.1111(1)(B) and §336.1125 of this title. The updated closure plan must describe the actual conditions of the facilities and site and the proposed closure activities and procedures.(h) The agency may grant a request to delay or postpone initiation of the decommissioning process if the agency determines that such relief is not detrimental to the occupational and public health and safety and is otherwise in the public interest. The request must be submitted no later than 30 days before notification in accordance with subsection (d) of this section. The schedule for decommissioning in subsection (d) of this section may not begin until the agency has made a determination on the request.(i) A decommissioning plan must be submitted if required by license condition or if the procedures and activities necessary to carry out decommissioning of the site or separate building or outdoor area have not been previously approved by the agency and these procedures could increase potential health and safety impacts to workers or to the public, such as in any of the following cases:(1) procedures would involve techniques not applied routinely during cleanup or maintenance operations;(2) workers would be entering areas not normally occupied where surface contamination and radiation levels are significantly higher than routinely encountered during operation;(3) procedures could result in significantly greater airborne concentrations of radioactive materials than are present during operation; or(4) procedures could result in significantly greater releases of radioactive material to the environment than those associated with operation.(j) The agency may approve an alternate schedule for submittal of a decommissioning plan required in accordance with subsection (d) of this section if the agency determines that the alternative schedule is necessary to the effective conduct of decommissioning operations and presents no undue risk from radiation to the occupational and public health and safety and is otherwise in the public interest.(k) The procedures listed in subsection (i) of this section may not be carried out prior to approval of the decommissioning plan.(l) The proposed decommissioning plan for the site or separate building or outdoor area must include:(1) a description of the conditions of the site, separate buildings, or outdoor area sufficient to evaluate the acceptability of the plan;(2) a description of planned decommissioning activities;(3) a description of methods used to ensure protection of workers and the environment against radiation hazards during decommissioning; (4) a description of the planned final radiation survey;(5) an updated detailed cost estimate for decommissioning, comparison of that estimate with present funds set aside for decommissioning, and a plan for assuring the availability of adequate decommissioning; and(6) for decommissioning plans calling for completion of decommissioning later than 24 months after plan approval, a justification for the delay based on the criteria in subsection (p) of this section.(m) The proposed decommissioning plan may be approved by the agency if the information in the plan demonstrates that the decommissioning will be completed as soon as practicable and that the occupational health and safety of workers and the public will be adequately protected.(n) Except as provided subsection (p) of this section, licensees shall complete decommissioning of the site or separate building or outdoor area as soon as practicable but no later than 24 months following the initiation of decommissioning.(o) Except as provided in subsection (p) of this section, when decommissioning involves the entire site, the licensee must request license termination as soon as practicable but no later than 24 months following the initiation of decommissioning.(p) The agency may approve a request for an alternate schedule for completion of decommissioning of the site or separate buildings or outdoor areas and the license termination if appropriate, if the agency determines that the alternative is warranted by the consideration of the following:(1) whether it is technically feasible to complete decommissioning within the allotted 24-month period;(2) whether sufficient waste disposal capacity is available to allow completion of decommissioning within the allotted 24-month period; and(3) other site-specific factors that the agency may consider appropriate on a case-by-case basis, such as the regulatory requirements of other government agencies, lawsuits, groundwater treatment activities, monitored natural groundwater restoration, actions that could result in more environmental harm than deferred cleanup, and other factors beyond the control of the licensee.(q) As the final step in decommissioning, the licensee must:(1) certify the disposition of all radioactive material, including accumulated by-product material;(2) conduct a radiation survey of the premises where the licensed activities were carried out and submit a report of the results of this survey unless the licensee demonstrates that the premises are suitable for release in accordance with subsection (e) of this section. The licensee shall, as appropriate:(A) report the following levels:(i) gamma radiation in units of microroentgen per hour (µR/hr) (millisieverts per hour (mSv/hr)) at 1 meter (m) from surfaces;(ii) radioactivity, including alpha and beta, in units of disintegrations per minute (dpm) or microcuries (µCi) (megabecquerels (MBq)) per 100 cm2 for surfaces;(iii) µCi (MBq) per milliliter for water; and(iv) picocuries (pCi) (becquerels (Bq)) per gram (g) for solids such as soils or concrete; and(B) specify the manufacturer's name, and model and serial number of survey instrument(s) used and certify that each instrument is properly calibrated and tested.(r) The executive director will provide written notification to specific licensees, including former licensees with license provisions continued in effect beyond the expiration date in accordance with subsection (d) of this section, that the provisions of the license are no longer binding. The executive director will provide such notification when the executive director determines that:(1) radioactive material has been properly disposed;(2) reasonable effort has been made to eliminate residual radioactive contamination, if present;(3) a radiation survey has been performed that demonstrates that the premises are suitable for release in accordance with agency requirements;(4) other information submitted by the licensee is sufficient to demonstrate that the premises are suitable for release in accordance with the requirements of subsection (e) of this section;(5) all records required by §336.343 of this title (relating to Records of Surveys) have been submitted to the agency;(6) the licensee has paid any outstanding fees required by this chapter and has resolved any outstanding notice(s) of violation issued to the licensee;(7) the licensee has met the applicable technical and other requirements for closure and reclamation of a by-product material disposal site; and(8) the NRC has made a determination that all applicable standards and requirements have been met.(s) Licenses for source material recovery or by-product material disposal are exempt from subsections (d)(3), (g), and (h) of this section with respect to reclamation of by-product material impoundments or disposal areas. Timely reclamation plans for by-product material disposal areas must be submitted and approved in accordance with §336.1129(p) - (aa) of this title (relating to Technical Requirements).(t) A licensee may request that a subsite or a portion of a licensed site be released for unrestricted use before full license termination as long as release of the area of concern will not adversely impact the remaining unaffected areas and will not be recontaminated by ongoing authorized activities. When the licensee is confident that the area of concern will be acceptable to the agency for release for unrestricted use, a written request for release for unrestricted use and agency confirmation of closeout work performed shall be submitted to the agency. The request should include a comprehensive report, accompanied by survey and sample results that show contamination is less than the limits specified in subsection (e) of this section and an explanation of how ongoing authorized activities will not adversely affect the area proposed to be released. Upon confirmation by the agency that the area of concern is releasable for unrestricted use, the licensee may apply for a license amendment, if required.</content><note type="source"><p>Source Note: The provisions of this §336.1115 adopted to be effective February 28, 2008, 33 TexReg 1570; amended to be effective November 14, 2013, 38 TexReg 7961; amended to be effective December 6, 2018, 43 TexReg 7798.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1117"><num value="336.1117">§336.1117</num><heading>Renewal of Licenses</heading><content>(a) Application for a renewal of specific licenses must be filed in accordance with §336.1107 of this title (relating to Filing Application for Specific Licenses) and §336.1111(1) of this title (relating to Special Requirements for a License Application for Source Material Recovery and By-Product Material Disposal Facilities). Application for a renewal of a specific license must be filed by the date specified in the license. If the licensee fails to apply for a renewal and fails to pay the fee required by Subchapter B of this chapter, the license expires and the licensee must comply with the requirements of §336.1115 of this title (relating to Expiration and Termination of Licenses; Decommissioning of Sites, Separate Buildings, or Outdoor Areas). In any application for renewal, the applicant may incorporate drawings by clear and specific reference (for example, title, date and unique number of drawing), if no modifications have been made since previously submitted.(b) In any case in which a licensee, prior to expiration of the existing license, has filed a request in proper form for a renewal or for a new license authorizing the same activities, such existing license will not expire until the application has been finally determined by the agency. In any case in which a licensee, not more than 30 days after the expiration of an existing license, has filed an application for renewal or for a new license authorizing the same activities and paid the fee required by Subchapter B of this chapter, the agency may reinstate the license and extend the expiration until the request has been finally determined by the agency.(c) An application for renewal of a license may be approved if the agency determines that the requirements of §336.1109 of this title (relating to General Requirements for the Issuance of Specific Licenses) have been satisfied.</content><note type="source"><p>Source Note: The provisions of this §336.1117 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1119"><num value="336.1119">§336.1119</num><heading>Amendment of Licenses at Request of Licensee</heading><content>Requests for amendment of a license shall be filed in accordance with §336.1107 of this title (relating to Filing Application for Specific Licenses) and §336.205 of this title (relating to Application Requirements). Such requests shall be signed by the radiation safety officer and specify how the licensee desires the license to be amended and the basis for such amendment.</content><note type="source"><p>Source Note: The provisions of this §336.1119 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1121"><num value="336.1121">§336.1121</num><heading>Agency Action on Applications to Renew or Amend</heading><content>In considering a request by a licensee to renew or amend a license, the agency will apply the appropriate criteria in §336.1109 of this title (relating to General Requirements for the Issuance of Specific Licenses) and §336.1111 of this title (relating to Special Requirements for a License Application for Source Material Recovery and By-Product Material Disposal Facilities).</content><note type="source"><p>Source Note: The provisions of this §336.1121 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1123"><num value="336.1123">§336.1123</num><heading>Transfer of Material</heading><content>(a) A licensee may not transfer radioactive material except as authorized in accordance with this chapter.(b) Except as otherwise provided in a license and subject to the provisions of subsections (c) and (d) of this section, any licensee may transfer radioactive material:(1) to the agency after receiving prior approval from the agency;(2) to the United States Department of Energy;(3) to any person exempt from the licensing requirements of the Texas Radiation Control Act and these requirements or exempt from the licensing requirements of the United States Nuclear Regulatory Commission (NRC) or an agreement state, to the extent permitted by these exemptions;(4) to any person authorized to receive such material in accordance with terms of a general license or its equivalent, a specific license or equivalent licensing document issued by the agency, NRC, any agreement state, any licensing state, or to any person otherwise authorized to receive such material by the federal government or any agency of the federal government, or the agency;(5) to any person abroad pursuant to an export license issued under Title 10, Chapter 1, Code of Federal Regulations Part 110; or(6) as otherwise authorized by the agency in writing.(c) Before transferring radioactive material to a specific licensee of the agency, NRC, an agreement state, a licensing state, or to a general licensee who is required to register with the agency, the licensee transferring the radioactive material shall verify that the transferee's license authorizes the receipt of the type, form, and quantity of radioactive material to be transferred.(d) The following methods for the verification of subsection (c) of this section are acceptable:(1) the transferor may possess and have read a current copy of the transferee's specific license or registration certificate;(2) the transferor may possess a written certification by the transferee that the transferee is authorized by the license or certificate of registration to receive the type, form, and quantity of radioactive material to be transferred, specifying the license or registration certificate number, issuing agency, and expiration date;(3) for emergency shipments, the transferor may accept oral certification by the transferee that the transferee is authorized by license or registration certificate to receive the type, form, and quantity of radioactive material to be transferred, specifying the license or registration certificate number, issuing agency, and expiration date, provided that the oral certification is confirmed in writing within ten days; or(4) when none of the methods of verification described in paragraphs (1) - (3) of this subsection are readily available or when a transferor desires to verify that information received by one of these methods is correct or up-to-date, the transferor may obtain and record confirmation from the agency, or the NRC, that the transferee is licensed to receive the radioactive material.(e) Preparation for shipment and transport of radioactive material shall be in accordance with the provisions of §336.332 of this title (relating to Preparation of Radioactive Material for Transport).</content><note type="source"><p>Source Note: The provisions of this §336.1123 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1125"><num value="336.1125">§336.1125</num><heading>Financial Assurance Requirements</heading><content>(a) Financial assurance for decontamination, decommissioning, reclamation, restoration, disposal, and any other requirements of the agency shall be established by each licensee 60 days prior to the initial receipt, production, or possession of radioactive substances, or injection operations in a production area to assure that sufficient funds will be available to carry out the decontamination and decommissioning of buildings and the site and for the reclamation of any by-product material disposal areas. The amount of funds to be ensured by such financial assurance mechanism shall be based on agency-approved cost estimates in an agency-approved closure plan for:(1) decontamination and decommissioning of buildings and the site to levels that allow unrestricted use of these areas upon decommissioning; and(2) the reclamation of by-product material disposal areas in accordance with technical criteria delineated in §336.1129 of this title (relating to Technical Requirements); or(3) the aquifer restoration which is based on the physical characteristics of the mining aquifer; the costs of equipment, labor, and administration; and any other data required under Chapter 331 of this title (relating to Underground Injection Control) for a production area authorization application.(b) The licensee shall submit this closure plan in conjunction with an environmental report that addresses the expected environmental impacts of the licensee's operation, decommissioning and reclamation, and evaluates alternatives for mitigating these impacts.(c) The financial assurance shall also cover the payment of the charge for long-term surveillance and control for by-product material disposal areas required by §336.1127(c) of this title (relating to Long-Term Care and Maintenance Requirements).(d) The licensee's cost estimates must take into account total costs that would be incurred if an independent contractor were hired to perform the decommissioning and reclamation work in establishing specific financial assurance mechanisms. The agency may accept financial assurance mechanisms that have been consolidated with financial or security arrangements established to meet requirements of other federal or state agencies and/or local governing bodies for such decommissioning, decontamination, reclamation, and long-term site surveillance and control, provided such arrangements are considered adequate to satisfy these requirements and that the portion of the security that covers the decommissioning and reclamation of the buildings, site, and by-product material disposal areas, and the long-term funding charge is clearly identified and committed for use in accomplishing these activities.(e) The financial assurance mechanism shall be continuous for the term of the license and shall be payable to the State of Texas and deposited to the credit of the perpetual care account.(f) The licensee's financial assurance mechanism and the underlying cost estimates will be reviewed annually by the agency to assure that sufficient funds are available for completion of the decommissioning and reclamation plan if the work had to be performed by an independent contractor. The amount of financial assurance must be adjusted to recognize any increases resulting from inflation, changes in engineering plans, activities performed, and any other conditions affecting costs. A licensee must submit a cost estimate report annually for decommissioning and reclamation of the facility in accordance with the decommissioning and reclamation plans by no later than an anniversary date as determined by the executive director. The licensee must provide any increase in the amount of financial assurance within 60 days of a determination of the cost estimate by the executive director.(g) Except as provided in subsection (i) of this section, financial assurance required under this subchapter must meet the requirements specified in Chapter 37, Subchapter T of this title (relating to Financial Assurance for Radioactive Substances and Aquifer Restoration) by June 1, 2009. Regardless of whether reclamation is phased through the life of the operation or takes place at the end of operations, an appropriate portion of financial assurance amount as determined by the executive director shall be retained until final compliance with the reclamation plan is determined. This will yield a financial assurance mechanism that is at least sufficient at all times to cover the costs of decommissioning and reclamation of the areas that are expected to be disturbed before the next license renewal.(h) Self-insurance, or any arrangement that essentially constitutes self-insurance (for example, a contract with a state or federal agency), will not satisfy the financial assurance requirement since this provides no additional assurance other than that which already exists through license requirements.(i) A licensee with a performance bond mechanism(s) issued in favor of Texas Department of State Health Services and submitted to Texas Department of State Health Services or its predecessor with an original effective date prior to June 15, 2007 that does not provide a new mechanism(s) under subsection (g) of this section must:(1) amend the performance bond by June 1, 2009 to:(A) reflect Texas Commission on Environmental Quality as the beneficiary;(B) reflect the current total penal sum; and(C) correct regulatory citations and Texas Commission on Environmental Quality license number.(2) provide replacement financial assurance mechanism(s) that meets the requirements specified in Chapter 37, Subchapter T of this title by March 31, 2010.</content><note type="source"><p>Source Note: The provisions of this §336.1125 adopted to be effective February 28, 2008, 33 TexReg 1570; amended to be effective March 12, 2009, 34 TexReg 1688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1127"><num value="336.1127">§336.1127</num><heading>Long-term Care and Maintenance Requirements</heading><content>(a) Unless otherwise provided by the agency, each licensee licensed in accordance with this part for disposal of by-product material shall make payments into the Environmental Radiation and Perpetual Care Account in amounts specified by the agency. The agency shall make such determinations on a case-by-case basis.(b) The final disposition of by-product material should be such that the need for ongoing active maintenance is eliminated to the maximum extent practicable.(c) A minimum charge of $250,000 (1978 dollars) or more, if determined by the agency, must be paid into the Environmental Radiation and Perpetual Care Account to cover the costs of long-term care and maintenance. The total charge must be paid prior to the termination of a license. With agency approval, the charge may be paid in installments. The total or unpaid portion of the charge must be covered during the term of the license by additional security meeting the requirements of §336.1125 of this title (relating to Financial Assurance Requirements). If site surveillance, control, or maintenance requirements at a particular site are determined, on the basis of a site-specific evaluation, to be significantly greater (for example, if fencing or monitoring is determined to be necessary), the agency may specify a higher charge. The total charge must be such that, with an assumed 1.0% annual real interest rate, the collected funds will yield interest in an amount sufficient to cover the annual costs of site care, surveillance, and where necessary, maintenance. Prior to actual payment, the total charge will be adjusted annually for inflation. The inflation rate to be used is that indicated by the change in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics.(d) The requirements of this section apply only to those sites whose ownership is subject to being transferred to the state or the federal government. The total amount of funds collected by the agency in accordance with this section must be transferred to the federal government if title and custody of the by-product material disposal site is transferred to the federal government upon termination of the license.</content><note type="source"><p>Source Note: The provisions of this §336.1127 adopted to be effective February 28, 2008, 33 TexReg 1570; amended to be effective June 25, 2015, 40 TexReg 3996.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1129"><num value="336.1129">§336.1129</num><heading>Technical Requirements</heading><content>(a) By-product material handling and disposal systems must be designed to accommodate full-capacity production over the lifetime of the facility. When later expansion of systems or operations may be likely, capability of the disposal system to be modified to accommodate increased quantities without degradation in long-term stability and other performance factors must be evaluated. (b) In selecting among alternative by-product material disposal sites or judging the adequacy of existing sites, the following site features which would assure meeting the broad objective of isolating the tailings and associated contaminants without ongoing active maintenance must be considered: (1) remoteness from populated areas; (2) hydrogeologic and other environmental conditions conducive to continued immobilization and isolation of contaminants from usable groundwater sources; and (3) potential for minimizing erosion, disturbance, and dispersion by natural forces over the long term. (c) The site selection process must be an optimization to the maximum extent reasonably achievable in terms of these site features. (d) In the selection of disposal sites, primary emphasis must be given to isolation of the by-product material, a matter having long-term impacts, as opposed to consideration only of short-term convenience or benefits (e.g., minimization of transportation of land acquisition costs). While isolation of by-product material will also be a function of both site and engineering design, overriding consideration must be given to siting features. (e) By-product material should be disposed of in a manner such that no active maintenance is required to preserve conditions of the site. (f) The applicant's environmental report must evaluate alternative sites and disposal methods and shall consider disposal of by-product material by placement below grade. Where full below grade burial is not practicable, the size of retention structures, and size and steepness of slopes associated with exposed embankments must be minimized by excavation to the maximum extent reasonably achievable or appropriate given the geologic and hydrologic conditions at a site. In these cases, it must be demonstrated that an above grade disposal program will provide reasonably equivalent isolation of the by-product material from natural erosional forces. (g) To avoid proliferation of small waste disposal sites and thereby reduce perpetual surveillance obligations, by-product material from in situ extraction operations, such as residues from solution evaporation or contaminated control processes, and wastes from small remote above ground extraction operations must be disposed of at existing large mill tailings disposal sites; unless, considering the nature of the wastes, such as their volume and specific activity, and the costs and environmental impacts of transporting the wastes to a large disposal site, such offsite disposal is demonstrated to be impracticable or the advantages of onsite burial clearly outweigh the benefits of reducing the perpetual surveillance obligations. (h) The following site and design requirements must be adhered to whether by-product material is disposed of above or below grade: (1) the upstream rainfall catchment areas must be minimized to decrease erosion potential by flooding that could erode or wash out sections of the by-product material disposal area; (2) the topographic features must provide good wind protection; (3) the embankment and cover slopes must be relatively flat after final stabilization to minimize erosion potential and to provide conservative factors of safety assuring long term stability. The objective should be to contour final slopes to grades that are as close as possible to those that would be provided if by-product material was disposed of below grade. Slopes must not be steeper than 5 horizontal to 1 vertical (5h:1v), except as specifically authorized by the agency. Where steeper slopes are proposed, reasons why a slope steeper than 5h:1v would be as equally resistant to erosion shall be provided, and compensating factors and conditions that make such slopes acceptable shall be identified; (4) a full self-sustaining vegetative cover must be established or rock cover employed to reduce wind and water erosion to negligible levels; (5) where a full vegetative cover is not likely to be self-sustaining due to climatic conditions, such as in semi-arid and arid regions, rock cover shall be employed on slopes of the impoundment system. The agency may consider relaxing this requirement for extremely gentle slopes, such as those that may exist on the top of the pile; (6) the following factors must be considered in establishing the final rock cover design to avoid displacement of rock particles by human and animal traffic or by natural processes, and to preclude undercutting and piping: (A) shape, size, composition, gradation of rock particles (excepting bedding material, average particles size must be at least cobble size or greater); (B) rock cover thickness and zoning of particles by size; and (C) steepness of underlying slopes. (7) individual rock fragments must be dense, sound, and resistant to abrasion, and shall be free from cracks, seams, and other defects that would tend to unduly increase their destruction by erosion and weathering action. Local rock materials are permissible provided the characteristics under local climatic conditions indicate similar long-term performance as a protective layer. Weak, friable, or laminated aggregate may not be used; (8) rock covering of slopes may not be required where top covers are very thick (on the order of 10 m or greater); impoundment slopes are very gentle (on the order of 10h:1v or less); bulk cover materials have inherently favorable erosion resistance characteristics; there is negligible drainage catchment area upstream of the pile; and there is good wind protection; (9) all impoundment surfaces must be contoured to avoid areas of concentrated surface runoff or abrupt or sharp changes in slope gradient. In addition to rock cover on slopes, areas toward which surface runoff might be directed must be well protected with substantial rock cover (riprap). In addition to providing for stability of the impoundment system itself, overall stability, erosion potential, and geomorphology of surrounding terrain must be evaluated to assure that there are no ongoing or potential processes, such as gully erosion, which would lead to impoundment instability; (10) the impoundment must not be located near a capable fault that could cause a maximum credible earthquake larger than that which the impoundment could reasonably be expected to withstand; and (11) the impoundment should be designed to incorporate features that will promote deposition. Design features that promote deposition of sediment suspended in any runoff which flows into the impoundment area might be utilized. The object of such a design feature would be to enhance the thickness of cover over time. (i) The following groundwater protection requirements and those in subsections (j) and (k) of this section and §336.1133 of this title (relating to Maximum Values for Use in Groundwater Protection) apply during operations and until closure is completed. Groundwater monitoring to comply with these standards is required by subsections (bb) and (cc) of this section. (1) The primary groundwater protection standard is a design standard for surface impoundments used to manage uranium or thorium by-product material. Unless exempted under subsection (i)(3) of this section, surface impoundments (except for an existing portion) must have a liner that is designed, constructed, and installed to prevent any migration of wastes out of the impoundment to the adjacent subsurface soil, groundwater, or surface water at any time during the active life (including the closure period) of the impoundment. If the liner is constructed of materials that may allow wastes to migrate into the liner during the active life of the facility, impoundment closure shall include removal or decontamination of all waste residues, contaminated containment system components (liners, etc.), contaminated subsoils, and structures and equipment contaminated with waste and leachate. For impoundments that will be closed with the liner material left in place, the liner must be constructed of materials that can prevent wastes from migrating into the liner during the active life of the facility. (2) The liner required by paragraph (1) of this subsection must be: (A) constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operation; (B) placed upon a foundation or base capable of providing support to the liner and resistance to pressure gradients above and below the liner to prevent failure of the liner due to settlement, compression, or uplift; and (C) installed to cover all surrounding earth likely to be in contact with the wastes or leachate. (3) The applicant or licensee may be exempted from the requirements of paragraph (1) of this subsection if the agency finds, based on a demonstration by the applicant or licensee, that alternate design and operating practices, including the closure plan, together with site characteristics will prevent the migration of any hazardous constituents into groundwater or surface water at any future time. In deciding whether to grant an exemption, the agency will consider: (A) the nature and quantity of the wastes; (B) the proposed alternate design and operation; (C) the hydrogeologic setting of the facility, including the attenuative capacity and thickness of the liners and soils present between the impoundment and groundwater or surface water; and (D) all other factors that would influence the quality and mobility of the leachate produced and the potential for it to migrate to groundwater or surface water. (4) A surface impoundment must be designed, constructed, maintained, and operated to prevent overtopping resulting from normal or abnormal operations, overfilling, wind and wave actions, rainfall, or run-off; from malfunctions of level controllers, alarms, and other equipment; and from human error. (5) When dikes are used to form the surface impoundment, the dikes must be designed, constructed, and maintained with sufficient structural integrity to prevent massive failure of the dikes. In ensuring structural integrity, it must not be presumed that the liner system will function without leakage during the active life of the impoundment. (j) By-product materials must be managed to conform to the following secondary groundwater protection requirements. (1) Hazardous constituents, as defined in §336.1105(16) of this title (relating to Definitions), entering the groundwater from a licensed site must not exceed the specified concentration limits in the uppermost aquifer beyond the point of compliance during the compliance period. (2) Specified concentration limits are those limits established by the agency as indicated in paragraph (7) of this subsection. (3) The agency will also establish the point of compliance and compliance period on a site-specific basis through license conditions and orders. (4) When the detection monitoring established under subsections (bb) and (cc) of this section indicates leakage of hazardous constituents from the disposal area, the agency will perform the following: (A) identify hazardous constituents; (B) establish concentration limits; (C) set the compliance period; and (D) may adjust the point of compliance if needed in accordance with developed data and site information regarding the flow of groundwater or contaminants. (5) Even when constituents meet all three tests in the definition of hazardous constituent, the agency may exclude a detected constituent from the set of hazardous constituents on a site-specific basis if it finds that the constituent is not capable of posing a substantial present or potential hazard to human health or the environment. In deciding whether to exclude constituents, the agency will consider the following: (A) potential adverse effects on groundwater quality, considering the following: (i) physical and chemical characteristics of the waste in the licensed site, including its potential for migration; (ii) hydrogeological characteristics of the licensed site and surrounding land; (iii) quantity of groundwater and the direction of groundwater flow; (iv) proximity of groundwater users and groundwater withdrawal rates; (v) current and future uses of groundwater in the area; (vi) existing quality of groundwater, including other sources of contamination and cumulative impact on the groundwater quality; (vii) potential for human health risks caused by human exposure to waste constituents; (viii) potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and (ix) persistence and permanence of potential adverse effects; and (B) potential adverse effects on quality of hydraulically-connected surface water, considering the: (i) volume and physical and chemical characteristics of the by-product material in the licensed site; (ii) hydrogeological characteristics of the licensed site and surrounding land; (iii) quantity and quality of groundwater and the direction of groundwater flow; (iv) patterns of rainfall in the region; (v) proximity of the licensed site to surface waters; (vi) current and future uses of surface waters in the area and any water quality standards established for those surface waters; (vii) existing quality of surface water, including potential impacts from other sources of contamination and the cumulative impact on surface water quality; (viii) potential for human health risks caused by human exposure to waste constituents; (ix) potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and (x) persistence and permanence of the potential adverse effects. (6) In making any determinations under paragraphs (5) and (8) of this subsection about the use of groundwater in the area around the facility, the agency will consider any identification of underground sources of drinking water and exempted aquifers made by the United States Environmental Protection Agency (EPA) and the commission under Chapter 331 of this title. (7) At the point of compliance, the concentration of a hazardous constituent may not exceed the following: (A) the agency approved background concentration in the groundwater of the constituents listed in 10 Code of Federal Regulations (CFR) 40, Appendix A, Criterion 13; (B) the respective value given in §336.1133 of this title if the constituent is listed in the table and if the background level of the constituent is below the value listed; or (C) an alternate concentration limit established by the agency. (8) Alternate concentration limits to background concentration or to the drinking water limits in §336.1133 of this title that present no significant hazard may be proposed by licensees for agency consideration. Licensees must provide the basis for any proposed limits including consideration of practicable corrective actions, evidence that limits are as low as reasonably achievable, and information on the factors the agency shall consider. The agency may establish a site-specific alternate concentration limit for a hazardous constituent, as provided in paragraph (7) of this subsection, if it finds that the proposed limit is as low as reasonably achievable, after considering practicable corrective actions, and that the constituent will not pose a substantial present or potential hazard to human health or the environment as long as the alternate concentration limit is not exceeded. In making the present and potential hazard finding, the agency will consider the factors listed in paragraph (4) of this subsection. (k) If the groundwater protection standards established under subsection (i) of this section are exceeded at a licensed site, a corrective action program must be put into operation as soon as is practicable, and in no event later than 18 months after the agency finds that the standards have been exceeded. The licensee must submit the proposed corrective action program and supporting rationale for executive director approval prior to putting the program into operation, unless otherwise directed by the executive director. The licensee's proposed program must address removing or treating in place any hazardous constituents that exceed concentration limits in groundwater between the point of compliance and downgradient licensed site boundary. The licensee must continue corrective action measures to the extent necessary to achieve and maintain compliance with the groundwater protection standard. The executive director will determine when the licensee may terminate corrective action measures based on data from the groundwater monitoring program and other information that provides reasonable assurance that the groundwater protection standard will not be exceeded. (l) In developing and conducting groundwater protection programs, applicants and licensees must also consider the following: (1) installation of bottom liners. Where synthetic liners are used, a leakage-detection system must be installed immediately below the liner to ensure detection of any major failures. This is in addition to the groundwater monitoring program conducted as provided in subsection (cc) of this section. Where clay liners are proposed or relatively thin, in situ clay soils are to be relied upon for seepage control, tests must be conducted with representative tailings solutions and clay materials to confirm that no significant deterioration of permeability or stability properties will occur with continuous exposure of clay to by-product material solutions. Tests must be run for a sufficient period of time to reveal any effects that may occur; (2) mill process designs that provide the maximum practicable recycle of solutions and conservation of water to reduce the net input of liquid to the by-product material impoundment; (3) dewatering of by-product material solutions by process devices and/or in situ drainage systems. At new sites, by-product material solutions must be dewatered by a drainage system installed at the bottom of the impoundment to lower the phreatic surface and reduce the driving head of seepage, unless tests show by-product material solutions are not amenable to such a system. Where in situ dewatering is to be conducted, the impoundment bottom must be graded to assure that the drains are at a low point. The drains must be protected by suitable filter materials to assure that drains remain free-running. The drainage system must also be adequately sized to assure good drainage; and (4) neutralization to promote immobilization of hazardous constituents. (m) Technical specifications must be prepared for installation of seepage control systems. A quality assurance, testing, and inspection program, which includes supervision by a qualified engineer or scientist, must be established to assure that specifications are met. If adverse groundwater impacts or conditions conducive to adverse groundwater impacts occur due to seepage, action must be taken to alleviate the impacts or conditions and restore groundwater quality to levels consistent with those before operations began. The specific seepage control and groundwater protection method, or combination of methods, to be used must be worked out on a site-specific basis. (n) In support of a by-product material disposal system proposal, the applicant/licensee must supply the following information: (1) the chemical and radioactive characteristics of the waste solutions; (2) the characteristics of the underlying soil and geologic formations particularly as they will control transport of contaminants and solutions. This must include detailed information concerning extent, thickness, uniformity, shape, and orientation of underlying strata. Hydraulic gradients and conductivities of the various formations must be determined. This information must be gathered by borings and field survey methods taken within the proposed impoundment area and in surrounding areas where contaminants might migrate to groundwater. The information gathered on boreholes must include both geologic and geophysical logs in sufficient number and degree of sophistication to allow determining significant discontinuities, fractures, and channeled deposits of high hydraulic conductivity. If field survey methods are used, they should be in addition to and calibrated with borehole logging. Hydrologic parameters such as permeability must not be determined on the basis of laboratory analysis of samples alone. A sufficient amount of field testing (e.g., pump tests) must be conducted to assure actual field properties are adequately understood. Testing must be conducted to make possible estimates of chemisorption attenuation properties of underlying soil and rock; and (3) location, extent, quality, capacity, and current uses of any groundwater at and near the site. (o) If ore is stockpiled, methods must be used to minimize penetration of radionuclides and other substances into underlying soils. (p) In disposing of by-product material, licensees must place an earthen cover over the by-product material at the end of the facility's operations and shall close the waste disposal area in accordance with a design that provides reasonable assurance of control of radiological hazards to the following: (1) be effective for 1,000 years to the extent reasonably achievable and, in any case, for at least 200 years; and (2) limit releases of radon-222 from uranium by-product materials and radon-220 from thorium by-product materials to the atmosphere so as not to exceed an average release rate of 20 picocuries per square meter per second (pCi/m2 s) to the extent practicable throughout the effective design life determined in accordance with paragraph (1) of this subsection. This average applies to the entire surface of each disposal area over a period of at least one year, but a short period compared to 100 years. Radon will come from both by-product materials and cover materials. Radon emissions from cover materials should be estimated as part of developing a closure plan for each site. The standard, however, applies only to emissions from by-product materials to the atmosphere. (q) In computing required by-product material cover thicknesses, moisture in soils in excess of amounts found normally in similar soils in similar circumstances may not be considered. Direct gamma exposure from the by-product material should be reduced to background levels. The effects of any thin synthetic layer may not be taken into account in determining the calculated radon exhalation level. Cover may not include materials that contain elevated levels of radium. Soils used for near-surface cover must be essentially the same, as far as radioactivity is concerned, as that of surrounding surface soils. If non-soil materials are proposed as cover materials, the licensee must demonstrate that such materials will not crack or degrade by differential settlement, weathering, or other mechanisms over the long term. (r) As soon as reasonably achievable after emplacement of the final cover to limit releases of radon-222 from uranium by-product material and prior to placement of erosion protection barriers of other features necessary for long-term control of the tailings, the licensee must verify through appropriate testing and analysis that the design and construction of the final radon barrier is effective in limiting releases of radon-222 to a level not exceeding 20pCi/m2 s averaged over the entire pile or impoundment using the procedures described in Appendix B, method 115 of 40 CFR Part 61, or another method of verification approved by the agency as being at least as effective in demonstrating the effectiveness of the final radon barrier. (s) When phased emplacement of the final radon barrier is included in the applicable reclamation plan, as defined in §336.1105(25) of this title, the verification of radon-222 release rates required in subsection (dd) of this section must be conducted for each portion of the pile or impoundment as the final radon barrier for that portion is emplaced. (t) Within 90 days of the completion of all testing and analysis relevant to the required verification in subsection (dd)(3) and (dd)(4) of this section, the uranium recovery licensee must report to the agency the results detailing the actions taken to verify that levels of release of radon-222 do not exceed 20 pCi/m2 s when averaged over the entire pile or impoundment. The licensee must maintain records documenting the source of input parameters, including the results of all measurements on which they are based, the calculations and/or analytical methods used to derive values for input parameters, and the procedure used to determine compliance. These records must be maintained until termination of the license and shall be kept in a form suitable for transfer to the custodial agency at the time of transfer of the site to the state or federal government in accordance with §336.1131 of this title (relating to Land Ownership of By-Product Material Disposal Sites). (u) Near-surface cover materials may not include waste, rock, or other materials that contain elevated levels of radium. Soils used for near-surface cover must be essentially the same, as far as radioactivity is concerned, as surrounding surface soils. This is to ensure that surface radon exhalation is not significantly above background because of the cover material itself. (v) The design requirements for longevity and control of radon releases apply to any portion of a licensed and/or disposal site unless such portion contains a concentration of radium in land averaged over areas of 100 square meters (m2 ), that, as a result of by-product material, does not exceed the background level by more than: (1) 5 picocuries per gram (pCi/g) of radium-226, or in the case of thorium by-product material, radium-228, averaged over the first 15 centimeters (cm) below the surface; and (2) 15 pCi/g of radium-226, or in the case of thorium by-product material, radium-228, averaged over 15-cm thick layers more than 15 cm below surface. (w) The licensee must also address the nonradiological hazards associated with the waste in planning and implementing closure. The licensee must ensure that disposal areas are closed in a manner that minimizes the need for further maintenance. To the extent necessary to prevent threats to human health and the environment, the licensee shall control, minimize, or eliminate post-closure escape of nonradiological hazardous constituents, leachate, contaminated rainwater, or waste decomposition products to groundwater or surface waters or to the atmosphere. (x) For impoundments containing uranium by-product materials, the final radon barrier shall be completed as expeditiously as practicable considering technological feasibility after the pile or impoundment ceases operation in accordance with a written reclamation plan, as defined in §336.1105(25) of this title, approved by the agency, by license amendment. (The term "As expeditiously as practicable considering technological feasibility" includes "Factors beyond the control of the licensee.") Deadlines for completion of the final radon barrier and applicable interim milestones shall be established as license conditions. Applicable interim milestones may include, but are not limited to, the retrieval of windblown by-product material and placement on the pile and the interim stabilization of the by-product material (including dewatering or the removal of freestanding liquids and recontouring). The placement of erosion protection barriers or other features necessary for long-term control of the by-product material shall also be completed in a timely manner in accordance with a written reclamation plan approved by the agency by license amendment. (y) The agency may approve by license amendment a licensee's request to extend the time for performance of milestones related to emplacement of the final radon barrier if, after providing an opportunity for public participation, the agency finds that the licensee has adequately demonstrated in the manner required in subsection (r) of this section that releases of radon-222 do not exceed an average of 20 pCi/m2 s. If the delay is approved on the basis that the radon releases do not exceed 20 pCi/m2 s, a verification of radon levels, as required by subsection (r) of this section, shall be made annually during the period of delay. In addition, once the agency has established the date in the reclamation plan for the milestone for completion of the final radon barrier, the agency may by license amendment extend that date based on cost if, after providing an opportunity for public participation, the agency finds that the licensee is making good faith efforts to emplace the final radon barrier, the delay is consistent with the definition of "Available technology," and the radon releases caused by the delay will not result in a significant incremental risk to the public health. (z) The agency may authorize by license amendment, upon licensee request, a portion of the impoundment to accept uranium by-product material, or such materials that are similar in physical, chemical, and radiological characteristics to the uranium mill tailings and associated wastes already in the pile or impoundment, from other sources during the closure process. No such authorization will be made if it results in a delay or impediment to emplacement of the final radon barrier over the remainder of the impoundment in a manner that will achieve levels of radon-222 releases not exceeding 20 pCi/m2 s averaged over the entire impoundment. The verification required in subsection (r) of this section may be completed with a portion of the impoundment being used for further disposal if the agency makes a final finding that the impoundment will continue to achieve a level of radon-222 release not exceeding 20 pCi/m2 s averaged over the entire impoundment. After the final radon barrier is complete except for the continuing disposal area, only by-product material will be authorized for disposal, and the disposal will be limited to the specified existing disposal area. This authorization by license amendment will only be made after providing opportunity for public participation. Reclamation of the disposal area, as appropriate, must be completed in a timely manner after disposal operations cease in accordance with subsection (p) of this section. These actions are not required to be complete as part of meeting the deadline for final radon barrier construction. (aa) The licensee's closure plan must provide reasonable assurance that institutional control will be provided for the length of time found necessary by the agency to ensure the requirements of subsection (p) of this section are met. (bb) Prior to any major site construction, a preoperational monitoring program must be conducted for one full year to provide complete baseline data on the site and its environs. Throughout the construction and operating phases of the project, an operational monitoring program must be conducted to measure or evaluate compliance with applicable standards and rules; to evaluate performance of control systems and procedures; to evaluate environmental impacts of operation; and to detect potential long-term effects. (cc) The licensee shall establish a detection monitoring program needed for the agency to set the site-specific groundwater protection standards in subsection (j)(4) of this section. For all monitoring under this paragraph, the licensee or applicant will propose, as license conditions for agency approval, which constituents are to be monitored on a site-specific basis. The data and information must provide a sufficient basis to identify those hazardous constituents that require concentration limit standards and to enable the agency to set the limits for those constituents and compliance period. They may provide the basis for adjustments to the point of compliance. The detection monitoring program must be in place when specified by the agency in orders or license conditions. Once groundwater protection standards have been established in accordance with subsection (j)(4) of this section, the licensee shall establish and implement a compliance monitoring program. In conjunction with a corrective action program, the licensee shall establish and implement a corrective action monitoring program to demonstrate the effectiveness of the corrective actions. Any monitoring program required by this subsection may be based on existing monitoring programs to the extent the existing programs can meet the stated objective for the program. (dd) Systems must be designed and operated so that all airborne effluent releases are as low as is reasonably achievable. The primary means of accomplishing this must be by means of emission controls. Institutional controls, such as extending the site boundary and exclusion area, may be employed to ensure that offsite exposure limits are met, but only after all practicable measures have been taken to control emissions at the source. (1) During operations and prior to closure, radiation doses from radon emissions from surface impoundments of by-product materials must be kept as low as is reasonably achievable. (2) Checks must be made and logged hourly of all parameters which determine the efficiency of emission control equipment operation. It must be determined whether or not conditions are within a range prescribed to ensure that the equipment is operating consistently near peak efficiency. Corrective action must be taken when performance is outside of prescribed ranges. Effluent control devices must be operative at all times during drying and packaging operations and whenever air is exhausting from the uranium dryer stack. Drying and packaging operations must terminate when controls are inoperative. When checks indicate the equipment is not operating within the range prescribed for peak efficiency, actions must be taken to restore parameters to the prescribed range. When this cannot be done without shutdown and repairs, drying and packaging operations must cease as soon as practicable. Operations may not be restarted after cessation due to off-normal performance until needed corrective actions have been identified and implemented. All such cessations, corrective actions, and re-starts must be reported to the executive director in writing within ten days of the subsequent restart. (3) To control dusting from by-product material, that portion not covered by standing liquids must be wetted or chemically stabilized to prevent or minimize blowing and dusting to the maximum extent reasonably achievable. This requirement may be relaxed if by-product materials are effectively sheltered from wind, as in the case of below-grade disposal. Consideration must be given in planning by-product material disposal programs to methods for phased covering and reclamation of by-product material impoundments. To control dusting from diffuse sources, applicants/licensees must develop written operating procedures specifying the methods of control that will be utilized. (4) Uranium recovery facility operations producing or involving thorium by-product material must be conducted in such a manner as to provide reasonable assurance that the annual dose equivalent does not exceed 25 millirems (mrem) to the whole body, 75 mrem to the thyroid, and 25 mrem to any other organ of any member of the public as a result of exposures to the planned discharge of radioactive materials to the general environment, radon-220 and its daughters excepted. (5) By-product materials must be managed so as to conform to the applicable provisions of 40 CFR Part 440, as codified on January 1, 1983. (ee) Licensees/applicants may propose alternatives to the specific requirements in §336.1125 of this title (relating to Financial Security Requirements), §336.1127 of this title (relating to Long-Term Care and Maintenance Requirements), §336.1129 of this title (relating to Technical Requirements) and §336.1131 of this title (relating to Land Ownership of By-Product Material Disposal Sites). The alternative proposals may take into account local or regional conditions including geology, topography, hydrology, and meteorology. (ff) The agency may find that the proposed alternatives meet the agency's requirements if the alternatives will achieve a level of stabilization and containment of the sites concerned and a level of protection for the public health and safety and the environment from radiological and nonradiological hazards associated with the sites, which is equivalent to, to the extent practicable, or more stringent than the level that would be achieved by the requirements of §§336.1125, 336.1127, 336.1129 and 336.1131 of this title and the standards promulgated by EPA in 40 CFR Part 192, Subparts D and E. (gg) All site-specific licensing decisions based on the criteria in §§336.1125, 336.1127, 336.1129 and 336.1131 of this title, or alternatives proposed by licensees or applicants must take into account the risk to the public health and safety and the environment with due consideration to the economic costs involved and any other factors the agency determines to be appropriate. (hh) Any proposed alternatives to the specific requirements in §§336.1125, 336.1127, 336.1129 and 336.1131 of this title must meet the requirements of 10 CFR §150.31(d). (ii) No new site may be located in a 100-year floodplain or wetland as defined in "Floodplain Management Guidelines for Implementing Executive Order 11988."</content><note type="source"><p>Source Note: The provisions of this §336.1129 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1131"><num value="336.1131">§336.1131</num><heading>Land Ownership of By-product Material Disposal Sites</heading><content>(a) These criteria relating to ownership of by-product material and their disposal sites apply to all licenses terminated, issued, or renewed after November 8, 1981.(b) Unless exempted by the United States Nuclear Regulatory Commission (NRC), title to land (including any affected interests therein) that is used for the disposal of by-product material or that is essential to ensure the long-term stability of the disposal site and title to the by-product material must be transferred to the State of Texas or the United States prior to the termination of the license. Material and land transferred must be transferred without cost to the State of Texas or the United States. In cases where no ongoing site surveillance will be required, surface land ownership transfer requirements may be waived. For licenses issued before November 8, 1981, NRC may take into account the status of the ownership of the land and interests therein, and the ability of a licensee to transfer title and custody thereof to the State.(c) Any uranium recovery facility license must contain terms and conditions as the agency determines necessary to assure that, prior to termination of the license, the licensee will comply with ownership requirements of this section for sites used for tailings disposal.(d) For surface impoundments only, the applicant/licensee shall demonstrate a serious effort to obtain severed mineral rights and shall, in the event that fee simple title including all mineral rights cannot be obtained, provide notification in local public land records of the fact that the land is being used for the disposal of radioactive material and is subject to an NRC license prohibiting the disruption and disturbance of the tailings.(e) If NRC, subsequent to title transfer, determines that use of the surface or subsurface estates, or both, of the land transferred to the state or federal government will not endanger the public health and safety or the environment, NRC may permit the use of the surface or subsurface estates, or both, of such land in a manner consistent with the provisions of this section. If NRC permits the use of such land, it will provide the person who transferred the land with the first refusal with respect to the use of such land.</content><note type="source"><p>Source Note: The provisions of this §336.1131 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1133"><num value="336.1133">§336.1133</num><heading>Maximum Values for Use in Groundwater Protection</heading><content>The following is a list of the maximum concentration values to be used for groundwater protection. Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.1133 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scL/s336.1135"><num value="336.1135">§336.1135</num><heading>Construction Activities</heading><content>For an application for a new license to dispose of by-product material that was filed with the Texas Department of State Health Services on or before January 1, 2007, an applicant may commence construction activities before issuance of a license, at the applicant's own risk, under the following conditions:(1) the applicant has completed preoperational monitoring provided under §336.1129(bb) of this title (relating to Technical Requirements);(2) the executive director has issued an environmental analysis and final draft license with recommendation to approve the application under §281.21 of this title (relating to Draft Permit, Technical Summary, Fact Sheet, and Compliance History);(3) the applicant may not receive, store, possess, receive or dispose of by-product material without a license from the commission authorizing the activity;(4) the agency may inspect and observe the construction activities;(5) the applicant must cease construction activities when directed by the executive director to do so; and(6) the commencement of construction activities may not be considered as a factor in determining whether to issue a license.</content><note type="source"><p>Source Note: The provisions of this §336.1135 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c336/scM"><num value="M">SUBCHAPTER M</num><heading>LICENSING OF RADIOACTIVE SUBSTANCES PROCESSING AND STORAGE FACILITIES</heading><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1201"><num value="336.1201">§336.1201</num><heading>Purpose and Scope</heading><content>(a) This section establishes the requirements for management of commercial radioactive substances processing and storage facilities, the procedures and criteria for the issuance of licenses to receive, possess, transport, store, and process radioactive substances from other persons, and the terms and conditions upon which the agency may issue such licenses.(b) In addition to the requirements of this subchapter, all licensees, unless otherwise specified, are subject to the requirements of Subchapters A - E and G of this chapter (relating to General Provisions; Radioactive Substance Fees; General Disposal Requirements; Standards for Protection Against Radiation; Notices, Instructions, and Reports to Workers and Inspections; and Decommissioning Standards).</content><note type="source"><p>Source Note: The provisions of this §336.1201 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1203"><num value="336.1203">§336.1203</num><heading>Definitions</heading><content>The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise. (1) Commencement of major construction--Any major structural erection or major alterations to existing structures, or other substantial action that would change the facility design or site for the purpose of establishing a radioactive substances processing or storage facility. The term does not mean the acquisition of existing structures or minor changes thereto. (2) Decommissioning--The final activities carried out at a radioactive substances processing or storage site after completion of processing operations to remove safely from service and reduce residual radioactivity to a level that permits release of the property for unrestricted use and/or termination of the license. Such activities must include: (A) disposing of all radioactive substances at a licensed radioactive waste disposal site; (B) dismantling or decontaminating site structures; (C) decontaminating site surfaces and remaining equipment; and (D) conducting final closure surveys, decontamination, and reclamation of the site. (3) Disposal--Isolation or removal of radioactive substances from mankind and his environment. The term does not include emissions and discharges under rules of the agency. (4) Engineered barriers--Man-made devices to contain or limit the potential movement of radioactive material, which might result from spills or other accidents. (5) Floodplain--The lowland and relatively flat areas adjoining inland and coastal waters, including flood prone areas of off-shore islands. (6) Local government--A county, an incorporated city or town, a special district, or other political subdivision of the state. (7) Major aquifer--An aquifer that yields large quantities of water in a comparatively large area of the state. Major aquifers are located in the following formations: Ogallala, Alluvium and Bolsom Deposits, Edwards-Trinity (Plateau), Edwards (Balcones Fault Zone - San Antonio Region), Edwards (Balcones Fault Zone - Austin Region), Trinity Group, Carrizo-Wilcox, and Gulf Coast. (8) Natural barriers--The natural characteristics of a site or surface and subsurface composition that serves to impede the movement of radioactive material. Natural barriers may include, for example, the location of a facility remote from an aquifer, or the sorptive capability of the soil surrounding a facility. (9) Processing--The storage, extraction of materials, transfer, volume reduction, compaction, incineration, solidification, or other separation and preparation of radioactive substances from other persons for reuse or disposal, including any treatment or activity that renders the waste less hazardous, safer for transport, or amenable to recovery, storage, or disposal. (10) Radioactive substances processing facility--A facility where radioactive substances received from other persons are processed and/or repackaged according to United States Department of Transportation (DOT) regulations. (11) Radioactive substances storage facility--A facility where radioactive substances received from other persons are stored while awaiting shipment to a licensed radioactive substances processing or disposal facility. (12) Reconnaissance level information--Any information or analysis that can be retrieved or generated without the performance of new comprehensive site-specific investigations. Reconnaissance level information includes, but is not limited to, relevant published scientific literature; drilling records required by state agencies, such as the Railroad Commission of Texas, the Texas Commission on Environmental Quality, and the Texas Natural Resources Information System; and reports of governmental agencies. (13) Site--The real property, including the buffer zone, on which a radioactive substances processing or storage facility may be located. (14) Site monitoring--The procedures for the monitoring of the site and environment to assess quality of site operations and performance and to detect and quantify levels and types of radioactivity and chemicals in the environment. It includes preoperational, operational, and license termination phases. (15) Site operations--The routine day-to-day activities carried out at the site for the receipt, processing, and storage of radioactive substances. (16) Site suitability--The capability of the various characteristics of a processing or storage facility or site to safely contain the radioactive substances expected to be present at the site. (17) Sole source aquifer--The aquifer that is the sole or principal source of drinking water for an area designated under the Safe Drinking Water Act of 1974, 42 United States Code Annotated 300f, et seq. (18) Waste processing and storage categories--Radionuclides classified as follows: (A) any one of seven groups into which radionuclides in normal form are classified, according to their toxicity and their relative potential hazard in transport, as specified in §336.1231 of this title (relating to Radioactive Substances Processing and Storage Categories of Radionuclides); and (B) any radionuclide not specifically listed in one of the categories in §336.1231 of this title shall be assigned to one of the categories in accordance with §336.1231(b) of this title. (19) Wetlands--Areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support and that, under normal circumstances, do support a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include playa lakes, swamps, marshes, bogs, and similar areas.</content><note type="source"><p>Source Note: The provisions of this §336.1203 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1205"><num value="336.1205">§336.1205</num><heading>Activities Requiring License</heading><content>Except for persons exempted by this subchapter, no person may receive, possess, store or process radioactive substances from another person except as authorized in a specific license issued in accordance with this subchapter.</content><note type="source"><p>Source Note: The provisions of this §336.1205 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1207"><num value="336.1207">§336.1207</num><heading>Radioactive Substances Processing and Storage Facility Classification</heading><content>(a) Radioactive substances processing and storage facilities are classified according to the radionuclides, other than sealed sources, received, possessed, or processed in each of the waste processing and storage categories, as defined in §336.1203 of this title (relating to Definitions) with all applicable provisions, except that, for the purposes of this section which apply to processing and storage of radioactive substances, Category IV must include waste processing and storage categories IV-VII. The total possession limit of each category of unsealed (dispersible) radionuclides for each class of facility is as follows: Attached Graphic(b) Class III storage facilities are those in which the applicable possession limit of radioactive substances exceeds any limit of Class II storage facilities. (c) Class III processing facilities are those in which the applicable possession limit of radioactive substances exceeds any limit of Class II processing facilities.</content><note type="source"><p>Source Note: The provisions of this §336.1207 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1209"><num value="336.1209">§336.1209</num><heading>Exemptions</heading><content>(a) Sealed sources. Persons who receive, possess, or process sealed sources of radioactive material as radioactive waste from other persons are exempt from this section, provided that:(1) encapsulated sources are tested upon receipt and determined to have less than 0.005 microcurie of removable contamination; and(2) sealed sources of radioactive material remain in sealed form after receipt.(b) Unsealed sources.(1) Persons who receive, possess, or process sources of radioactive material in unsealed form as radioactive waste from other persons are exempt from this section provided that:(A) the total radioactivity of all radioactive waste possessed at any one time does not exceed the applicable limits for Class I processing or storage facilities as described in §336.1207 of this title (relating to Radioactive Substances Processing and Storage Facility Classification); and(B) the total volume of radioactive waste processed in any one year does not exceed 50 cubic feet.(2) Persons who receive, possess, and store radioactive material in unsealed form as radioactive substances from other persons are exempt from this section provided that:(A) the radioactive substance consists only of radiopharmaceutical residues resulting from radiopharmaceuticals manufactured, compounded, and supplied by those persons receiving the radiopharmaceutical residues as radioactive waste;(B) the radioactive substance is held in storage for decay to background radiation levels; and(C) the radioactive substances is not shipped to a radioactive waste processing or disposal facility.(c) Radioactive material. A person who receives, possesses, and stores radioactive material as waste from sites owned and controlled by that same person is not considered to have received waste from other persons.</content><note type="source"><p>Source Note: The provisions of this §336.1209 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1211"><num value="336.1211">§336.1211</num><heading>Filing Application for a Specific License</heading><content>Unless otherwise specified, an applicant for a license to receive, possess, or process radioactive substances from other persons is subject to the requirements in §336.205 of this title (relating to Application Requirements). The applicant shall also comply with the following additional filing requirements.(1) The applicant for a license to receive, possess, or process radioactive substances from other persons shall submit seven copies of each license application or application for amendment and any supporting documents in a manner specified by the agency. Applications for issuance of licenses must include all general and specific technical requirements, financial information, and environmental requirements, if applicable, described in this section.(2) Each application must clearly demonstrate how the requirements of this section and §§336.1213, 336.1215, and 336.1217 of this title (relating to Additional Environmental Requirements for Class III Facilities, Issuance of Licenses, Commencement of Major Construction, respectively) have been addressed.(3) Applications for licenses will be processed in accordance with the requirements of Chapter 281 of this title (relating to Applications Processing).(4) An applicant for a license under this section must include the following additional information in the application:(A) identity of the applicant including the full name, address, telephone number, and description of the business(es) or occupation(s) of the applicant;(B) the organizational structure of the applicant, both off-site and on-site, including a description of lines of authority and assignments of responsibilities, whether in the form of administrative directives, contract provisions, or otherwise;(C) a description of past operations that the applicant has been involved in including any license limitations, suspensions or revocations of such licenses, and any other information that will allow the agency to assess the applicant's past operating history;(D) the technical qualifications, including training and experience, of the applicant and members of the applicant's staff to engage in the proposed activities; and minimum training and experience requirements for personnel;(E) a description of the personnel training and retraining program;(F) a statement of need and a description of the proposed activities identifying:(i) the location of the proposed site;(ii) the character of the proposed activities;(iii) the types, chemical and/or physical forms and quantities of radioactive substances to be received, possessed, and processed; and(iv) the plans for use of the facility for purposes other than processing of radioactive substances;(G) proposed time schedules for construction and receipt and processing of radioactive waste at the proposed facility;(H) description of the site and accurate drawings of the facility including, but not limited to:(i) construction;(ii) foundation details;(iii) ventilation;(iv) plumbing and fire suppression systems;(v) physical security system;(vi) storage areas;(vii) radioactive substances handling or processing areas;(viii) proximity to creeks or culverts; and(ix) soil types under the facility with respect to compatibility with foundation and structural design;(I) a description that demonstrates that the site suitability characteristics will meet the following requirements:(i) the overall hydrogeologic environment of the site, in combination with engineering design, must act to minimize and control potential migration of radioactive substances into surface water and groundwaters;(ii) no new site may be located in a 100-year floodplain, as designated by the Commission, or a wetland; and(iii) no new site may be located in the recharge area of a sole source aquifer or a major aquifer unless it can be demonstrated with reasonable assurance that the new site will be designed, constructed, operated, and closed without an unreasonable risk to the aquifer.(J) minimum criteria for facility design and operation to include:(i) the building used for processing radioactive wastes must have a minimum classification of Type II (111) in accordance with National Fire Protection Association 220 titled, "Standard Types of Building Construction;"(I) buildings used for processing or storage of radioactive substances shall have ventilation and fire protection systems to minimize the release of radioactive materials into the soils, waters, and the atmosphere; and(II) facilities and equipment for repackaging leaking and/or damaged containers must be provided.(ii) the design and operation of the radioactive substances processing or storage facility must be such that:(I) releases of non-radiological noxious materials from the facility are minimized; and(II) radiation levels, concentrations, and potential exposures off-site due to airborne releases during operations are within the limits established in Subchapter D of this chapter and are maintained as low as reasonably achievable.(iii) the design and operation of the radioactive substances processing or storage facility must be compatible with the objectives of the site closure and decommissioning plan;(iv) the facility must be designed to confine spills. Independent and diverse engineered barriers must be provided, as necessary, to complement natural barriers in minimizing potential releases from the facility and in complying with this section;(v) the location and construction of any new radioactive substances processing facility must have a buffer zone adequate to permit emergency measures to be implemented following accidents and to address airborne plume dispersions and, as a minimum, shall be such that:(I) the active components of a Class II facility are located at least 30 meters from the nearest residence as of the date of the license application; and(II) the active components of a Class III facility are located at least 30 meters from the nearest property not owned or occupied by the licensee.(K) a flow diagram of radioactive substances processing operations;(L) a description and accurate drawings of processing equipment and any required special handling techniques to be employed;(M) a description of personnel monitoring methods, training, and procedures to be followed to keep employees from ingesting and inhaling radioactive materials, including a description of methods to keep the radiation exposure to levels as low as reasonably achievable;(N) a description of the site monitoring program to include prelicense data and proposed operational monitoring programs for direct gamma radiation measurements and radioactive and chemical characteristics of the soils, groundwater, surface waters, and vegetation, as applicable;(i) for radioactive substances storage facilities, the applicant shall address on-site air quality; and(ii) for radioactive substances processing facilities, the applicant shall address on-site and off-site air quality;(O) spill detection and cleanup plans for the licensed site and for associated transportation of radioactive material;(P) an operating, safety, and emergency procedures manual that must provide detailed procedures for receiving, handling, storing, processing, and shipping radioactive substances;(Q) for radioactive substances processing facilities, a description of the equipment to be installed to maintain control over maximum concentrations of radioactive materials in gaseous and liquid effluents produced during normal operations and the means to be employed for keeping levels of radioactive material in effluents to unrestricted areas as low as reasonably achievable and within the limits listed in Subchapter D of this chapter;(R) methods of ultimate disposal and decommissioning; and(S) the system for maintaining inventory of receipt, storage, and transfer of radioactive substances.(T) an adequate operating, radiation safety, and emergency procedures manual; and(U) a signed certification from the owner or owners of the real property on which radioactive substances are stored or processed acknowledging that:(i) radioactive substances are stored or processed on the property with the consent of the property owner or owners; and(ii) decommissioning of the site may be required even if the applicant or licensee is unable or fails to decommission the site as required by a license, rule or order of the commission.</content><note type="source"><p>Source Note: The provisions of this §336.1211 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1213"><num value="336.1213">§336.1213</num><heading>Additional Environmental Requirements</heading><content>An application for a license for a processing or storage facility must include environmental information that may be based on reconnaissance level information when appropriate and addresses the following:(1) description of present land uses and population distribution in the vicinity of the site:(A) for radioactive substances storage facilities, the description must address properties adjacent to the site; and(B) for radioactive substances processing facilities, the description must address properties adjacent to the site and shall include population distribution within a one-mile radius of the site;(2) area/site suitability including geology, hydrology, and natural hazards. For radioactive substances processing facilities, area meteorology also must be addressed;(3) site and project alternatives including alternative siting analysis;(4) socioeconomic effects on surrounding communities of operation of the licensed activity and of associated transportation of radioactive material; and(5) environmental effects of postulated accidents.</content><note type="source"><p>Source Note: The provisions of this §336.1213 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1215"><num value="336.1215">§336.1215</num><heading>Issuance of Licenses</heading><content>(a) A license for a radioactive substances processing or storage facility may be issued if the agency finds reasonable assurance that:(1) an application meets the requirements of the Texas Radiation Control Act and the rules of the agency;(2) the proposed radioactive substances facility will be sited, designed, operated, decommissioned, and closed in accordance with this chapter;(3) the issuance of the license will not be inimical to the health and safety of the public or the environment; and(4) there is no reason to deny the license because of:(A) any material false statement in the application or any statement of fact required under provisions of the Texas Radiation Control Act;(B) conditions revealed by the application or statement of fact or any report, record, or inspection, or other means that would warrant the agency to refuse to grant a license on an application; or(C) failure to clearly demonstrate how the requirements in this chapter have been addressed; and(5) qualifications of the designated radiation safety officer (RSO) as stated in §336.208 of this title (relating to Radiation Safety Officer) are adequate for the purpose requested in the application.(b) The agency may request, and the licensee must provide, additional information after the license has been issued to enable the agency to determine whether the license should be modified, suspended, or revoked.</content><note type="source"><p>Source Note: The provisions of this §336.1215 adopted to be effective February 28, 2008, 33 TexReg 1570; amended to be effective December 11, 2024, 49 TexReg 10003.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1217"><num value="336.1217">§336.1217</num><heading>Commencement of Major Construction</heading><content>Commencement of major construction is prohibited until a license has been issued by the commission.</content><note type="source"><p>Source Note: The provisions of this §336.1217 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1219"><num value="336.1219">§336.1219</num><heading>Commencement of Operations</heading><content>No licensee issued a license under this section may commence operations until the licensee has obtained licenses or permits from other agencies as required by law.</content><note type="source"><p>Source Note: The provisions of this §336.1219 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1221"><num value="336.1221">§336.1221</num><heading>Specific Terms and Conditions of Licenses</heading><content>(a) Unless otherwise specified, each license issued in accordance with this subchapter is subject to the requirements in §305.125 of this title (relating to Standard Permit Conditions). A license issued under this subchapter must include license conditions derived from the evaluations of the application and analyses performed by the agency, including amendments and changes made before a license is issued. License conditions may include, but are not limited to, the following:(1) restrictions as to the total radioactive inventory of radioactive substances to be received;(2) restrictions as to size, shape, and materials and methods of construction of radioactive substances packaging and maximum number of package units stored, at any one time;(3) restrictions as to the physical and chemical form and radioisotopic content and concentration of radioactive substances;(4) controls to be applied to restrict access to the site;(5) controls to be applied to maintain and protect the health and safety of the public and site employees and the environment;(6) administrative controls, which are the provisions relating to organization, management, and operating procedures; record-keeping, review and audit; and reporting necessary to assure that activities at the facility are conducted in a safe manner and in conformity with agency rules and license conditions;(7) maximum retention time for radioactive substances received at the facility; and(8) term of the specific license for a fixed term not to exceed ten years.(b) The commission may incorporate in any license at the time of issuance, or thereafter, by appropriate rule or order, additional requirements or conditions with respect to the licensee's receipt, possession, or transfer of radioactive substances as it deems appropriate or necessary in order to:(1) protect the health and safety of the public and the environment; or(2) require reports and recordkeeping and to provide for inspections of activities under the licenses that may be necessary or appropriate to effectuate the purposes of the Texas Radiation Control Act and rules thereunder.(c) Each person licensed by the commission in accordance with this subchapter shall confine the use and possession of the radioactive substance licensed to the locations and purposes authorized in the license.</content><note type="source"><p>Source Note: The provisions of this §336.1221 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1223"><num value="336.1223">§336.1223</num><heading>Renewal of Licenses</heading><content>(a) Renewal of licenses must be filed in accordance with §336.205 of this title (relating to Application Requirements) and §336.1211 of this title (relating to Filing Application for a Specific License).(b) The licensee is responsible for decommissioning the facility and continued safe storage of any radioactive substances whether an application for continued receipt of radioactive substances is filed or not.</content><note type="source"><p>Source Note: The provisions of this §336.1223 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1225"><num value="336.1225">§336.1225</num><heading>Amendment of License at Request of Licensee</heading><content>Applications for amendment of a license shall be filed in accordance with §336.1211 of this title (relating to Filing Application for a Specific License) and §336.205 of this title (relating to Application Requirements). Amendment applications must be signed by the RSO, specify the proposed amendment, and describe the basis for such amendment.</content><note type="source"><p>Source Note: The provisions of this §336.1225 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1227"><num value="336.1227">§336.1227</num><heading>Radioactive Substances Processing and Packaging Requirements</heading><content>All processed radioactive substances offered for transport or disposal must meet:(1) all applicable transportation requirements of the agency, the United States Nuclear Regulatory Commission, and of the DOT; and(2) all applicable disposal facility license conditions.</content><note type="source"><p>Source Note: The provisions of this §336.1227 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1229"><num value="336.1229">§336.1229</num><heading>Environmental Assessment</heading><content>A written analysis of the impact on the human environment will be prepared or secured by the agency for any license for a class III processing or storage facility in accordance with §281.21(f) of this title (relating to Draft Permit, Technical Summary, Fact Sheet, and Compliance History).</content><note type="source"><p>Source Note: The provisions of this §336.1229 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1231"><num value="336.1231">§336.1231</num><heading>Radioactive Substances Processing and Storage Categories of Radionuclides</heading><content>(a) The following table contains waste processing and storage categories of radionuclides. Attached Graphic(b) Any radionuclide not specifically listed in subsection (a) of this section must be assigned to one of the categories in accordance with the following table. Attached Graphic(c) For mixtures of radionuclides, the following must apply. (1) If the identity and respective activity of each radionuclide are known, the permissible activity of each radionuclide shall be such that the sum, for all categories present, of the ratio between the total activity for each category to the permissible activity for each category will not be greater than unity. (2) If the categories of the radionuclides are known but the amount in each category cannot be reasonably determined, the mixture must be assigned to the most restrictive category present. (3) If the identity of all or some of the radionuclides cannot be reasonably determined, each of those unidentified radionuclides shall be considered as belonging to the most restrictive category that cannot be positively excluded. (4) Mixtures consisting of a single radioactive decay chain where the radionuclides are in the naturally occurring proportions must be considered as consisting of a single radionuclide. The category and activity must be that of the first member present in the chain, except that if radionuclide "X" has a half-life longer than that of that first member and an activity greater than that of any other member, including the first, at any time during processing, the waste processing and storage category must be that of nuclide "X" and the activity of the mixture must be the maximum activity of nuclide "X" during processing.</content><note type="source"><p>Source Note: The provisions of this §336.1231 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1233"><num value="336.1233">§336.1233</num><heading>Radiation Safety Committee</heading><content>The duties and responsibilities of the Radiation Safety Committee include but are not limited to the following:(1) meeting as often as necessary to conduct business but no less than three times a year;(2) reviewing summaries of the following information presented by the radiation safety officer:(A) over-exposures;(B) significant incidents, including spills, contamination, or medical events; and(C) items of noncompliance following an inspection;(3) reviewing the program for maintaining doses as low as reasonably achievable, and providing any necessary recommendations to ensure doses are as low as reasonably achievable;(4) reviewing the overall compliance status for authorized users;(5) sharing responsibility with the radiation safety officer to conduct periodic audits of the radiation safety program;(6) reviewing the audit of the radiation safety program and acting upon the findings;(7) developing criteria to evaluate training and experience of new authorized user applicants;(8) evaluating and approving authorized user applicants who request authorization to use radioactive material at the facility;(9) evaluating new uses of radioactive material; and(10) reviewing and approving permitted program and procedural changes prior to implementation.</content><note type="source"><p>Source Note: The provisions of this §336.1233 adopted to be effective February 28, 2008, 33 TexReg 1570.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scM/s336.1235"><num value="336.1235">§336.1235</num><heading>Financial Assurance for Storage and Processing</heading><content>(a) A licensee must establish financial assurance for decommissioning and any other requirements of this subchapter 60 days prior to the initial possession of radioactive substances.(b) In establishing financial assurance, the licensee's cost estimates must take into account total costs that would be incurred if an independent contractor were hired to perform the decommissioning. The amount of financial assurance must be in an amount approved by the agency.(c) The licensee's financial assurance mechanism and the underlying cost estimates will be reviewed annually by the agency to assure that sufficient funds are available for completion of decommissioning. The amount of financial assurance must be adjusted to recognize any increases resulting from inflation, changes in engineering plans, activities performed, and any other conditions affecting costs. A licensee must submit a cost estimate report annually for decommissioning the facility in accordance with the decommissioning plan by no later than an anniversary date as determined by the executive director. The licensee must provide any increase in the amount of financial assurance within 60 days of a determination of the cost estimate by the executive director.(d) Financial assurance required under this subchapter must meet the requirements specified in Chapter 37, Subchapter T of this title (relating to Financial Assurance for Radioactive Substances and Aquifer Restoration) by June 1, 2009. Regardless of whether reclamation is phased through the life of the operation or takes place at the end of operations, an appropriate portion of financial assurance amount as determined by the executive director shall be retained until final compliance with the reclamation plan is determined. This will yield a financial assurance mechanism that is at least sufficient at all times to cover the costs of decommissioning and reclamation of the areas that are expected to be disturbed before the next license renewal.</content><note type="source"><p>Source Note: The provisions of this §336.1235 adopted to be effective February 28, 2008, 33 TexReg 1570; amended to be effective March 12, 2009, 34 TexReg 1688.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c336/scN"><num value="N">SUBCHAPTER N</num><heading>FEES FOR LOW-LEVEL RADIOACTIVE WASTE DISPOSAL</heading><section identifier="/us/state/tx/tac/t30/p1/c336/scN/s336.1301"><num value="336.1301">§336.1301</num><heading>Purpose and Scope</heading><content>(a) State and national policy directs that the management of low-level radioactive waste be accomplished by a system of interstate compacts and the development of regional disposal sites. Under federal law, Texas is responsible for managing the low-level radioactive waste generated within its borders. The Texas Low-Level Radioactive Waste Disposal Compact, comprised of the states of Texas and Vermont, has as its disposal facility the compact waste disposal facility licensed under Subchapter H of this chapter (relating to Licensing Requirements Near-Surface Land Disposal of Low-Level Radioactive Waste).(b) Low-level radioactive waste is generated by essential activities and services that benefit the citizens of the state. The price to dispose of low-level radioactive waste at the Texas low-level radioactive waste disposal site will be determined by the commission. To protect Texas and Vermont compact states' businesses and services, such as electrical production, medical and university research, and private industries, upon which the public relies, the commission will establish the maximum disposal rates charged by the licensee for disposal of party state compact waste in accordance with the rules in this subchapter.(c) A licensee who receives low-level radioactive waste for disposal pursuant to the Texas Low-Level Radioactive Waste Disposal Compact established under Texas Health and Safety Code, Chapter 403 shall collect a fee to be paid by each person who disposes of low-level radioactive waste in the compact waste disposal facility. This fee shall be based on the commission approved maximum disposal rate, as specified in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §336.1301 adopted to be effective March 12, 2009, 34 TexReg 1688; amended to be effective November 8, 2018, 43 TexReg 7357.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scN/s336.1303"><num value="336.1303">§336.1303</num><heading>Definitions</heading><content>Terms used in this subchapter are defined in §336.2 of this title (relating to Definitions). Additional terms used in this subchapter have the following definitions.(1) Allowable expenses--Only those expenses which are reasonable and necessary to provide service to the public shall be included in allowable expenses. Allowable expenses to the extent they are reasonable and necessary, may include but are not limited to the following general categories:(A) operation and maintenance expense incurred in providing normal compact waste disposal facility services and in maintaining compact waste disposal facility used and useful to the licensee in providing such services. Payments to affiliated interests shall be allowed as described in §336.1317 of this title (relating to Consideration of Payment to Affiliate);(B) expense to meet future costs of decommissioning, closing, and post closure maintenance and surveillance of the compact waste disposal facility;(C) depreciation expense based on original cost and computed on a straight-line basis as approved by the commission. Other methods of depreciation may be used when it is determined that such depreciation methodology is a more equitable means of recovering the cost of the facility;(D) assessments and taxes other than income taxes;(E) federal income tax on a normalized basis;(F) expenses for advertising, contributions, and donations may be allowed as a cost of service provided that the total sum of all such items allowed in the cost of service shall not exceed three-tenths of one percent (0.3%) maximum of the gross receipts; and(G) accruals credited to reserve accounts for self-insurance under a plan requested by a licensee and approved by the commission. The commission shall consider approval of a self-insurance plan in a rate case in which expenses or rate base treatments are requested for such a plan. For the purposes of this section, a self-insurance plan is a plan providing for accruals to be credited to reserve accounts. The reserve accounts are to be charged with property and liability losses which occur, and which could not have been reasonably anticipated and included in operating and maintenance expenses, and are not paid or reimbursed by commercial insurance. The commission will approve a selfinsurance plan to the extent it finds it to be in the public interest.(2) Compact--The Texas Low-Level Radioactive Waste Disposal Compact established under Texas Health and Safety Code, §403.006 and Texas Low-Level Radioactive Waste Disposal Compact Consent Act, Public Law Number 105-236 (1998).(3) Compact waste--Low-level radioactive waste that:(A) is generated in a host state or a party state; or(B) is not generated in a host state or a party state, but has been approved for importation to this state by the compact commission under §3.05 of the Texas Low-Level Radioactive Waste Disposal Compact established under Texas Health and Safety Code, §403.006.(4) Compact waste disposal facility--The low-level radioactive waste land disposal facility licensed by the commission under Subchapter H of this chapter (relating to Licensing Requirements for Near-Surface Land Disposal of Low-Level Radioactive Waste) for the disposal of compact waste.(5) Extraordinary volume--Volumes of low-level radioactive waste delivered to a site caused by nonrecurring events, outside normal operations of a generator, that are in excess of 20,000 cubic feet or 20% of the preceding year's total volume at such site, whichever is less.(6) Extraordinary volume adjustment--A mechanism that allocates the potential rate reduction benefits of an extraordinary volume between all generators and the generator responsible for such extraordinary volume as described in §336.1313 of this title (relating to Extraordinary Volume Adjustment).(7) Generator--A person, partnership, association, corporation, or any other entity whatsoever that, as a part of its activities, produces low-level radioactive waste and is subject to the Compact.(8) Gross receipts--Includes, with respect to an entity or affiliated members, owners, shareholders, or limited or general partners, all receipts from the entity's disposal operations in Texas licensed under this chapter including any bonus, commission, or similar payment received by the entity from a customer, contractor, subcontractor, or other person doing business with the entity or affiliated members, owners, shareholders, or limited or general partners. This term does not include receipts from the entity's operations in Texas, or affiliated members, owners, shareholders, or limited or general partners, for capital reimbursements, bona fide storage, treatment, and processing, and federal or state taxes or fees on waste received uniquely required to meet the specifications of a license or contract.(9) Inflation adjustment--A mechanism that adjusts the maximum disposal rate by a percentage equal to the change in price levels in the preceding period. The adjustment shall be made using an inflation factor derived from the most recent annual Implicit Price Deflator for Gross National Product published by the United States Department of Commerce in its Survey of Current Business.(10) Invested capital--The original cost, less accumulated depreciation, of property used by and useful to the licensee in providing service. The original cost of property shall be determined at the time the property is dedicated to public use, whether by the licensee that is the present owner or by a predecessor. In this subchapter, "original cost" means the actual money cost, or the actual money value of any consideration paid other than money.(11) Licensee--The holder of the license authorizing the compact waste disposal facility license issued by the commission under this chapter.(12) Maximum disposal rate--The rate described in §336.1311 of this title (relating to Revisions to Maximum Disposal Rates).(13) Reasonable rate of return--The return on invested capital based on calculations of revenue and operating costs on an after-tax basis which may include the following applicable factors:(A) the efforts and achievements of the licensee in conserving resources;(B) the quality of the licensee's services;(C) the efficiency of the licensee's operations; and(D) the quality of the licensee's management.(14) Relative hazard--The properties of a waste stream for disposal that may present a particular hazard or danger for safe management based on the radioactivity in curies and dose rate as well as special handling requirements due to size, shape, or configuration.(15) Revenue requirement--Based on a formula which is the invested capital multiplied by the rate of return on invested capital, plus the allowable expenses, where all amounts are only those used and useful for the compact facility.(16) Volume adjustment--A mechanism that adjusts the maximum disposal rate in response to material changes in volumes of waste deposited at the site during the preceding period so as to provide a level of total revenues sufficient to recover the costs to operate and maintain the site.</content><note type="source"><p>Source Note: The provisions of this §336.1303 adopted to be effective March 12, 2009, 34 TexReg 1688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scN/s336.1305"><num value="336.1305">§336.1305</num><heading>Commission Powers</heading><content>(a) The commission shall adopt maximum disposal rates for disposal of party state compact waste at the compact waste disposal facility. In determining the rates, the commission shall ensure that they are fair, just, reasonable, and sufficient considering the value of the licensee's real property and license interests, the unique nature of its business operations, the licensee's liability associated with the site, its investment incurred over the term of its operations, and the reasonable rate of return equivalent to that earned by comparable enterprises.(b) The commission may use any standard, formula, method, or theory of valuation reasonably calculated to arrive at the objective of prescribing and authorizing fair, just, reasonable, and sufficient rates.(c) In any proceeding involving a new or revised rate, the burden of proof shall be on the licensee to show that the proposed rate, if proposed by the licensee, or that the existing rate, if it is proposed to reduce the rate, is just and reasonable. In any other matters or proceedings, the burden of proof is on the moving party.(d) The commission may refer a request for a contested case hearing to the State Office of Administrative Hearings on the establishment of a rate under this subchapter.(e) The commission may audit a licensee's financial records and waste manifest information to ensure that the fees imposed under this chapter are accurately charged and paid. The licensee shall comply with the commission's audit-related requests for information.(1) To achieve the purposes, proper administration, and enforcement of this chapter, the executive director may conduct audits or investigations of waste disposal rates, payments and fees authorized by Texas Health and Safety Code, Chapter 401, and the veracity of information submitted to the commission.(2) Each person subject to or involved with an audit or investigation under this subsection shall cooperate fully with the audit or investigation conducted by the executive director.(f) After consideration of a rate application or revision, the commission shall establish, by rule, the maximum disposal rate and schedule.(g) The authority to establish the rates under this subchapter may be delegated to the executive director if the application is not contested.</content><note type="source"><p>Source Note: The provisions of this §336.1305 adopted to be effective March 12, 2009, 34 TexReg 1688; amended to be effective November 8, 2018, 43 TexReg 7357.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scN/s336.1307"><num value="336.1307">§336.1307</num><heading>Factors Considered for Determination of Maximum Disposal Rates</heading><content>Maximum disposal rates adopted by the commission shall consider the following factors and be sufficient to:(1) allow the licensee to recover allowable expenses. Allowable expenses shall never include: legislative advocacy expenses; political expenditures or contributions; expenses in support of or promoting political movements, or political or religious causes; funds expended for membership in or support of social, fraternal, or religious clubs or organizations; costs, including interest expense, of processing a refund or credit ordered by the commission; or any expenditure found by the commission to be unreasonable, unnecessary or against public interest, including but not limited to, executive salaries, legal expenses, penalties, fines, or costs not used or useful for the provision of compact waste disposal services;(2) provide an amount to fund local public projects under Texas Health and Safety Code, §401.244;(3) provide a reasonable opportunity to earn a reasonable rate of return on invested capital in the facilities used for management, disposal, processing, or treatment of compact waste at the compact waste disposal facility, which rate of return is expressed as a percentage of invested capital. In addition to the factors set forth in §336.1303(13) of this title (relating to Definitions), the rate of return should be reasonably sufficient to assure confidence in the financial soundness of the licensee and should be adequate, under efficient and economical management, to maintain and support its credit and enable it to raise the money necessary for the proper discharge of its public duties. A rate of return may be reasonable at one time and become too high or too low because of changes affecting opportunities for investment, the money market, and business conditions generally. The commission may, in addition, consider inflation, deflation, and the need for the licensee to attract new capital. The rate of return must be high enough to attract new capital but need not go beyond that. In each case, the commission shall consider the licensee's cost of capital, which is the weighted average of the costs of the various classes of capital used by the licensee:(A) Debt capital. The cost of debt capital is the actual cost of the debt at the time of issuance, plus adjustments for premiums, discounts, and refunding and issuance costs.(B) Equity capital. For companies with ownership expressed in terms of shares of stock, equity capital commonly consists of the following classes of stock:(i) Common stock capital. The cost of common stock capital shall be based upon a fair return on its market value; or(ii) Preferred stock capital. The cost of preferred stock capital is the actual cost of preferred stock at the time of issuance, plus an adjustment for premiums, discounts and refunding and issuance costs; and(4) provide an amount necessary to pay compact waste disposal facility licensing fees, to pay compact waste disposal facility fees set by rule or statute, to provide financial assurance for the compact waste disposal facility as required by the commission under law and commission rules, and to reimburse the commission for the salary and other expenses of two or more resident inspectors employed by the commission pursuant to Texas Health and Safety Code, §401.206.</content><note type="source"><p>Source Note: The provisions of this §336.1307 adopted to be effective March 12, 2009, 34 TexReg 1688; amended to be effective November 8, 2018, 43 TexReg 7357.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scN/s336.1309"><num value="336.1309">§336.1309</num><heading>Procedures for Determination of New and Revised Rates and Fees</heading><content>(a) The licensee shall file an application with the executive director to establish new or revised maximum disposal rates that consider the factors identified in §336.1307 of this title (relating to Factors Considered for Determination of Maximum Disposal Rates). The application shall include exhibits, workpapers, summaries, annual reports, cost studies, a proposed reasonable rate of return on invested capital, proposed fees, and other information as requested by the executive director to demonstrate rates that meet the requirements of this subchapter. In addition, the application shall include revenue requirements for cost recovery from the compact waste disposal facility.(1) The licensee shall submit a rate filing application package in accordance with the application prescribed by the executive director.(2) A licensee filing a rate application shall be prepared to go forward at the hearing on the data which has been submitted in its application and sustain the burden of proof establishing that its proposed changes are just and reasonable. The data in the rate application may be modified only on a showing of good cause.(3) After receipt of the application, the executive director shall review the application and evaluate the rate information. The executive director may request additional information from the licensee and the licensee shall provide that information within 20 days of receipt of request, unless a different time is agreed to.(4) If the licensee fails to provide, within a reasonable time after the application is filed, the necessary documentation or other evidence that supports the costs and expenses that are shown in the application, the commission may disallow the unsupported costs or expenses.(5) The licensee shall provide notice of the application to all known customers that will ship or deliver waste to the compact waste disposal facility and shall provide notice of the application to any person by any method as directed by the executive director. The licensee shall file with the commission proof of notice in the form of an affidavit stating that proper notice was mailed and the date of such mailing.(6) The executive director shall maintain a Web site to inform the public on the process for consideration of the rate application and shall provide notice of the licensee's proposed rates by publication in the Texas Register. (b) After notice and the opportunity for a contested case hearing, the commission shall establish the maximum disposal rates that may be charged by the licensee. Upon request for a contested case hearing by a party state generator, the executive director shall directly refer an application to establish maximum disposal rates to the State Office of Administrative Hearings for a contested case hearing. Only the executive director, the licensee, or a party state generator has a right to a contested case hearing.(c) A request for a contested case hearing filed by a party state generator shall contain the following information for each signatory generator:(1) a clear and concise statement that the application is a request for a contested case hearing; and(2) the generator's licensing numbers indicating the location or locations where the compact waste is generated.(d) Party state generators must initiate a request for a contested case hearing by filing individual requests rather than joint requests.(e) After determining the new or revised maximum disposal rates and inflation adjustment under this subchapter, the commission shall direct the executive director to initiate expedited rulemaking to establish the rate by rule.</content><note type="source"><p>Source Note: The provisions of this §336.1309 adopted to be effective March 12, 2009, 34 TexReg 1688; amended to be effective November 8, 2018, 43 TexReg 7357.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scN/s336.1310"><num value="336.1310">§336.1310</num><heading>Rate Schedule</heading><content>Fees charged for disposal of party state compact waste must be equal to or less than the compact waste disposal fees under this section. Additionally, fees charged for disposal of nonparty compact waste must be greater than the compact waste disposal fees under this section.Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §336.1310 adopted to be effective November 28, 2013, 38 TexReg 8445; amended to be effective February 26, 2015, 40 TexReg 818; amended to be effective November 8, 2018, 43 TexReg 7357; amended to be effective August 6, 2020, 45 TexReg 5357.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scN/s336.1311"><num value="336.1311">§336.1311</num><heading>Revisions to Maximum Disposal Rates</heading><content>(a) The maximum disposal rates that a licensee may charge party state generators shall be determined in accordance with this section, and §336.1307 of this title (relating to Factors Considered for Determination of Maximum Disposal Rates). The rates shall include all charges for disposal services at the compact waste disposal facility.(b) The maximum disposal rates may be adjusted at the request of the licensee to incorporate inflation adjustments. If an inflation adjustment is requested, the maximum disposal rates shall be adjusted by a percentage equal to the change in price levels in the preceding period. The adjustment shall be made using an inflation factor derived from the most recent annual Implicit Price Deflator for Gross National Product published by the United States Department of Commerce in its Survey of Current Business.(c) The licensee may file an application for revisions to the maximum disposal rates due to:(1) changes in any governmentally imposed fee, surcharge, or tax assessed on a volume or a gross receipts basis against or collected by the licensee, including site closure fees, perpetual care and maintenance fees, business and occupation taxes, site surveillance fees, commission regulatory fees, taxes, and a tax or payment in lieu of taxes authorized by the state to compensate the county in which a site is located for that county's legitimate costs arising out of the presence of that site within that county;(2) factors outside the control of the licensee such as a material change in regulatory requirements regarding the physical operation of the site; or(3) changes in the licensee's revenue requirements or in any of the other factors in §336.1307 of this title that necessitate a change in the licensee's maximum disposal rates.(d) The executive director may initiate revisions to the maximum disposal rates established under this subchapter if good cause exists. Good cause includes, but is not limited to:(1) material and substantial changes in the information used to establish the maximum disposal rates;(2) information, not available at the time the maximum rates were established, is received by the executive director, justifying a rate revision; or(3) the rules or statutes on which the maximum disposal rates were based have been changed by statute, rule, or judicial decision after the establishment of the maximum disposal rates.(e) One or more party state generators may petition the executive director to initiate a revision to a maximum disposal rate under the requirements of this section. The party state generator must provide a copy of the petition to the licensee at the time the petition is submitted to the executive director. The executive director shall grant or deny the petition within 90 days of filing, or request more information from the petitioner. The party state generator must provide a detailed and complete explanation of the existence of the good cause that is the basis of the petition. The executive director's decision on a petition filed under this paragraph is subject to a motion to overturn filed with the commission under Chapter 50 of this title (relating to Actions on Applications and Other Authorizations).(f) For revisions to maximum disposal rates, excluding inflation adjustments, the application must meet the requirements in §336.1309(a) and (b) of this title (relating to Procedures for Determination of New and Revised Rates and Fees). For revisions to maximum disposal rates due to an inflation adjustment, the licensee shall provide notice to its customers consistent with §336.1309(a)(5) of this title.(g) In computing allowable expenses for revisions to maximum disposal rates, only the licensee's test year expenses as adjusted for known and measurable changes will be considered.</content><note type="source"><p>Source Note: The provisions of this §336.1311 adopted to be effective March 12, 2009, 34 TexReg 1688; amended to be effective November 8, 2018, 43 TexReg 7357.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scN/s336.1315"><num value="336.1315">§336.1315</num><heading>Revenue Statements and Consideration of Payment to Affiliate</heading><content>(a) The licensee shall, on or before April 1st of each year, file with the commission:(1) an audited financial statement showing its gross receipts for the preceding calendar year;(2) a statement in a form prescribed by the executive director reflecting the licensee's revenues and allowable expenses for the previous calendar year from its low-level radioactive waste disposal activities; and(3) a validation of payments made in §336.103(f) and (g) of this title (relating to Schedule of Fees for Subchapter H Licenses) must also be included.(b) The financial statement as specified in subsection (a) of this section shall be prepared in accordance with Generally Accepted Accounting Principles and audited by a Certified Public Accounting (CPA) firm. The audited financial statement shall include an Auditor's Report from the CPA indicating an "unqualified" opinion of the licensee's financial statements.(c) In addition to the financial statement on gross receipts, the licensee shall provide an audited cost statement that provides all investment and operating costs for the preceding calendar year.(d) In addition to information submitted under this section, all revenues and costs shall be provided by the licensee upon request by the executive director to consider revision of rates under §336.1305(c) of this title (relating to Commission Powers.)(e) Except as provided by subsection (f) of this section, the commission may not allow as capital cost or as allowable expenses a payment to an affiliate for:(1) the cost of service, property, right, or other item; or(2) interest expense.(f) The commission may allow a payment described by subsection (e) of this section only to the extent that the commission finds the payment is reasonable and necessary for each item or class of items as determined by the commission.(g) A finding under subsection (f) of this section must include:(1) a specific finding of the reasonableness and necessity of each item or class of items allowed; and(2) a finding that the price charged to the licensee is not higher than the prices charged by the supplying affiliate for the same item or class of items to:(A) its other affiliates or divisions; or(B) a nonaffiliated person within the same market area or having the same market conditions.(h) In making a finding regarding an affiliate transaction, the commission shall:(1) determine the extent to which the conditions and circumstances of that transaction are reasonably comparable relative to quantity, terms, date of contract, and place of delivery; and(2) allow for appropriate differences based on that determination.(i) If the commission finds that an affiliate expense for the test period is unreasonable, the commission shall:(1) determine the reasonable level of the expense; and(2) include that expense in determining the licensee's cost of service.</content><note type="source"><p>Source Note: The provisions of this §336.1315 adopted to be effective March 12, 2009, 34 TexReg 1688.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c336/scN/s336.1317"><num value="336.1317">§336.1317</num><heading>Contracted Disposal Rates</heading><content>(a) At any time, a licensee may contract with a party state generator to provide a contract disposal rate that is lower than the maximum disposal rate.(b) A contract or contract amendment shall be submitted to the executive director for approval at least 30 days before its effective date. If the executive director takes no action within 30 days of filing, the contract or amendment shall go into effect according to its terms. Each contract filing shall be accompanied with documentation to show that the contract does not result in unreasonable discrimination between generators receiving like and contemporaneous service under substantially similar circumstances and provides for the recovery of all costs associated with the provision of the service.</content><note type="source"><p>Source Note: The provisions of this §336.1317 adopted to be effective March 12, 2009, 34 TexReg 1688; amended to be effective November 8, 2018, 43 TexReg 7357.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c337"><num value="337">CHAPTER 337</num><heading>DRY CLEANER ENVIRONMENTAL RESPONSE</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c337/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c337/scA/s337.1"><num value="337.1">§337.1</num><heading>Purposes</heading><content>The purposes of this chapter are to:(1) regulate and remediate certain dry cleaning facilities as prescribed by Texas Health and Safety Code, Chapter 374;(2) establish minimum standards and procedures to reasonably protect and maintain the quality of the state's groundwater and surface water resources from contamination that could result from any release from a dry cleaning facility;(3) provide for the use of risk-based corrective action; and(4) provide for the protection of human health and safety and the environment of the state.</content><note type="source"><p>Source Note: The provisions of this §337.1 adopted to be effective June 1, 2005, 30 TexReg 3108.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scA/s337.2"><num value="337.2">§337.2</num><heading>Applicability</heading><content>(a) This chapter applies to all dry cleaning facilities, dry cleaning drop stations, and distributors.(b) This chapter and Texas Health and Safety Code, Chapter 374 do not apply to the following types or categories of businesses:(1) hotels, motels, and similar establishments that meet the definition of a "hotel" in Texas Tax Code, §156.001, unless the business is also a dry cleaning facility or a dry cleaning drop station that accepts garments or other fabrics from retail customers;(2) formal wear and costume rental businesses, including tuxedo and bridal wear rental, as included in the North American Industry Classification System (NAICS) title "Formal Wear and Costume Rental," code 532220, unless the business is also a dry cleaning facility or a dry cleaning drop station that accepts garments or other fabrics from retail customers;(3) linen supply establishments and industrial launderers, including uniform supply, as included in the NAICS titles "Linen Supply," code 812331, and "Industrial Launderers," code 812332, unless the business is also a dry cleaning facility or a dry cleaning drop station that accepts garments or other fabrics from retail customers;(4) businesses that clean uniforms provided by the business for the sole use of the employees of the business using equipment located on the premises of the business, unless the business is also a dry cleaning facility or dry cleaning drop station that accepts garments or other fabrics from retail customers;(5) mobile dry cleaning drop stations, meaning any vehicle that is used, in whole or in part, to operate or provide a route service or pickup and delivery service between a retail customer and a dry cleaning facility or dry cleaning drop station;(6) transporting agents or services that haul garments between dry cleaning facilities and dry cleaning drop stations and that do not operate, in whole or in part, to provide a route service or pickup and delivery service between a retail customer and a dry cleaning facility or dry cleaning drop station; and(7) governmental bodies as set forth in Texas Health and Safety Code, §374.003.(c) For the purposes of this chapter, the terms "dry cleaning facility" and "dry cleaning drop station" do not include the types or categories of businesses set forth in subsection (b) of this section.</content><note type="source"><p>Source Note: The provisions of this §337.2 adopted to be effective June 1, 2005, 30 TexReg 3108.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scA/s337.3"><num value="337.3">§337.3</num><heading>Definitions</heading><content>Definitions set forth in Texas Health and Safety Code, Chapter 374 and §3.2 of this title (relating to Definitions) that are not specifically included in this section also apply. The following words and terms, when used in this chapter, have the following meanings.(1) Application for ranking--The form approved by the executive director for an applicant to provide information pertaining to a dry cleaning facility and which is used, in part, for the prioritization of sites for corrective action.(2) Distributor--A person that:(A) maintains or uses, permanently or temporarily, directly or indirectly, or through an agent, by whatever name called, an office, place of distribution, sales or sample room, warehouse or storage place, or other place of business that is used, in whole or part, for selling, distributing, or delivering dry cleaning solvent;(B) has any representative, agent, salesperson, canvasser, or solicitor who operates in Texas under the authority of the distributor to sell, deliver, or take orders for dry cleaning solvent;(C) uses independent contractors in direct sales, distribution, or delivery of dry cleaning solvent in Texas;(D) allows a franchisee or licensee to operate under its trade name if the franchisee or licensee is required to collect Texas fees on dry cleaning solvent;(E) conducts business in Texas through employees, agents, or independent contractors for the purpose of selling, distributing, or delivering dry cleaning solvent; or(F) otherwise distributes dry cleaning solvent to dry cleaning facilities or dry cleaning drop stations doing business in Texas.(3) Dry cleaning machine--The equipment used for the purpose of cleaning garments or other fabrics using a process that involves any use of dry cleaning solvents; a dry cleaning unit.(4) Dry cleaning waste--The waste, including dry cleaning wastewater, that is generated at a dry cleaning facility and that contains dry cleaning solvents.(5) Dry cleaning wastewater--The separator water and all other water that is generated during the dry cleaning process and that contains dry cleaning solvents.(6) Empty--The status of a dry cleaning machine in which all solvents have been removed as completely as possible by the use of commonly employed and accepted industry procedures.(7) Gross annual receipts--The sum of all payments or compensation, including payments or compensation from laundry and other revenue generating activities, received by a dry cleaning facility or drop station, less any returns, discounts, or allowances. The calculation of gross annual receipts must not be reduced for cost of goods sold, general and administrative expenses, depreciation and amortization, or other operating expenses. Gross annual receipts do not include any taxes imposed on the services provided by any municipality, state, or other governmental unit and collected by the dry cleaning facility or drop station for such governmental unit.(8) In service--The status of a dry cleaning machine that it is being used for cleaning garments or other fabrics with a process that involves any use of dry cleaning solvents.(9) Nonparticipating non-perchloroethylene user registration certificate--A registration certificate issued by the executive director to a facility designated as a nonparticipating facility in accordance with Texas Health and Safety Code, §374.104.(10) Operating dry cleaning drop station--A dry cleaning drop station that has accepted clothes for dry cleaning anytime during the state fiscal year.(11) Operating dry cleaning facility--A dry cleaning facility in which there is at least one operating dry cleaning machine in service anytime during the state fiscal year.(12) Participating non-perchloroethylene user registration certificate--A registration certificate issued by the executive director to an owner designated as a nonuser of perchloroethylene in accordance with Texas Health and Safety Code, §374.103(b)(1) as that subsection existed from September 1, 2003, until August 31, 2005.(13) Permanently removed from service--The status of a dry cleaning machine when its use is terminated by removal from the dry cleaning facility in accordance with this chapter.(14) Preceding Property Owner--a preceding owner of real property as described in Texas Health and Safety Code, §374.1022(a)(2).(15) Property Owner--an owner of real property as described in Texas Health and Safety Code, §374.1022(a)(1).(16) Secondary containment--A containment method by which a continuous barrier is installed around and under the primary storage vessel (e.g., tank or piping) in a manner designed to prevent a release from migrating beyond the secondary barrier.(17) Temporarily removed from service--The status of a dry cleaning machine that is not being used for cleaning garments or other fabrics for a time period not to exceed one year and that has not been permanently removed from service.</content><note type="source"><p>Source Note: The provisions of this §337.3 adopted to be effective June 1, 2005, 30 TexReg 3108; amended to be effective February 1, 2006, 31 TexReg 548; amended to be effective June 26, 2008, 33 TexReg 4898.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scA/s337.4"><num value="337.4">§337.4</num><heading>General Prohibitions and Requirements</heading><content>(a) New dry cleaning facilities must meet the performance standards in §337.20 of this title (relating to Performance Standards).(b) A distributor is prohibited from selling, delivering, or otherwise distributing any dry cleaning solvent to a dry cleaning facility unless the dry cleaning facility has a valid, current registration certificate issued by the executive director pursuant to §337.11 of this title (relating to Dry Cleaner Registration Certificates). Prior to sale, delivery, or other distribution of the dry cleaning solvent, the distributor must obtain and record the registration number and registration expiration date of the dry cleaning facility's registration certificate.(c) A distributor shall not sell, deliver, or otherwise distribute the dry cleaning solvent perchloroethylene to a dry cleaning facility with a nonparticipating non-perchloroethylene user registration certificate or a participating non-perchloroethylene user registration certificate.(d) A person is prohibited from purchasing dry cleaning solvent from a distributor that does not have a valid, current distributor registration certificate issued by the executive director.(e) A distributor is prohibited from selling or otherwise distributing dry cleaning solvent to a dry cleaning facility unless the distributor has a valid, current distributor registration certificate issued by the executive director.(f) A person is prohibited from purchasing the dry cleaning solvent perchloroethylene for a dry cleaning facility with a nonparticipating non-perchloroethylene user registration certificate or a participating non-perchloroethylene user registration certificate.(g) A distributor is prohibited from selling, delivering, or otherwise distributing any dry cleaning solvent to a dry cleaning drop station.(h) A person is prohibited from purchasing or otherwise obtaining any dry cleaning solvent for a dry cleaning facility unless the dry cleaning facility has a valid, current registration certificate issued by the executive director pursuant to §337.11 of this title.(i) A person is prohibited from purchasing or otherwise obtaining any dry cleaning solvent for a dry cleaning drop station.</content><note type="source"><p>Source Note: The provisions of this §337.4 adopted to be effective June 1, 2005, 30 TexReg 3108; amended to be effective June 26, 2008, 33 TexReg 4898.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c337/scB"><num value="B">SUBCHAPTER B</num><heading>REGISTRATION, CERTIFICATES, AND FEES</heading><section identifier="/us/state/tx/tac/t30/p1/c337/scB/s337.10"><num value="337.10">§337.10</num><heading>Registration for Dry Cleaning Facilities and Drop Stations</heading><content>(a) Registration.(1) All operating dry cleaning facilities and dry cleaning drop stations must be registered with the agency in accordance with this section.(2) Any person that owns a new dry cleaning facility or dry cleaning drop station that is placed into service after September 1, 2003, shall register the dry cleaning facility or dry cleaning drop station with the agency in accordance with subsection (c) of this section and receive a registration certificate before operations begin.(3) The owner of a dry cleaning facility or dry cleaning drop station is responsible for compliance with the registration requirements of this section. An owner may designate a legally authorized representative to complete and submit the required registration information. However, the owner remains responsible for compliance with the provisions of this section by such representative.(4) All dry cleaning facilities and dry cleaning drop stations are subject to the fee and payment requirements of §337.14 and §337.15 of this title (relating to Registration Fees; and Solvent Fees, respectively). The failure by an owner to properly or timely register any dry cleaning facility or dry cleaning drop station does not exempt the owner from such fee and payment requirements.(b) Changes or additional information.(1) The owner of a dry cleaning facility or dry cleaning drop station shall provide written notice to the executive director of any changes or additional information concerning such facilities. Types of changes or additional information subject to this requirement include the following:(A) change in owner or change in owner information (e.g., legally authorized representative, mailing address, or telephone number);(B) change in dry cleaning facility or dry cleaning drop station information (e.g., establishment name, legally authorized representative, establishment address, or telephone number);(C) change in the operational status of any dry cleaning unit (e.g., in service, temporarily out of service, removed from service);(D) change in the type of cleaning solvents used;(E) installation of additional dry cleaning units or ancillary equipment at an existing facility;(F) addition of, or a change in the type of, secondary containment (for dry cleaning units or storage areas) and/or ancillary equipment;(G) addition of, or a change in the type of, closed direct-coupled delivery system for the dry cleaning unit; and(H) change in the location of records for the dry cleaning facility or dry cleaning drop station.(2) Notice of any change or additional information must be submitted on the appropriate agency form that has been completed in accordance with this section. The agency's registration numbers for the dry cleaning facility/drop station must be included in the appropriate spaces on the form.(3) Notice of any change or additional information must be submitted to the executive director within 30 days from the date of the occurrence of the change or addition.(c) Required form for providing dry cleaning facility or dry cleaning drop station registration information.(1) Dry cleaning facility owners and dry cleaning drop station owners shall provide the required information on the current agency registration form.(2) The dry cleaning facility owner or dry cleaning drop station owner is responsible for ensuring that the registration form is fully complete and accurate. The form must be dated and signed by the owner or a legally authorized representative of the owner, and must be submitted to the agency in accordance with the time frames established in this chapter.(3) Dry cleaning facility or dry cleaning drop station owners shall complete and submit a separate registration form for each facility or drop station.(4) If additional information, drawings, or other documents are submitted with new or revised registration data, specific facility identification information (including the facility registration number) must be conspicuously indicated on each document, and all such documents must be attached to and submitted with the form.(5) When any of the required dry cleaning facility or dry cleaning drop station registration information submitted to the executive director is determined to be incomplete or inaccurate (including illegible or unclear information), the executive director may require the owner to submit additional information. An owner shall submit any such required additional information within 30 days of receipt of such request.</content><note type="source"><p>Source Note: The provisions of this §337.10 adopted to be effective June 1, 2005, 30 TexReg 3108.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scB/s337.11"><num value="337.11">§337.11</num><heading>Dry Cleaner Registration Certificates</heading><content>(a) Before the executive director evaluates a registration to determine if a registration certificate should be issued, each registration must be administratively complete. A registration is not administratively complete if:(1) the registration form has not been completed and submitted to the agency in accordance with this chapter;(2) the registration form does not contain all requested information with clear, legible, and true responses;(3) all fees, penalties, and interest owed to the agency have not been paid; or(4) the comptroller reports to the executive director that the owner is not in good standing with the state or that the owner's application information does not agree with the comptroller's information. However, if the comptroller does not respond to the agency's request for verification within three business days in accordance with Texas Health and Safety Code, §374.102(f), the executive director shall not be prohibited from determining that the registration is administratively complete.(b) Upon the executive director's determination that a submitted registration is administratively complete, a registration certificate will be issued for the dry cleaning facility or dry cleaning drop station, as applicable, as long as the executive director has no reason to deny the registration certificate under this section. This certificate is necessary to receive the delivery of dry cleaning solvents under §337.4(b) of this title (relating to General Prohibitions and Requirements).(c) The agency's issuance of a registration certificate for a dry cleaning facility or dry cleaning drop station does not constitute agency certification or affirmation of the compliance status of the location in question with this chapter, the Texas Water Code, or the Texas Health and Safety Code; and this issuance does not preclude the agency from investigating these locations and pursuing enforcement actions when apparent violations are discovered.(d) Certificate availability.(1) The owner of a dry cleaning facility or dry cleaning drop station shall make available to a person delivering dry cleaning solvent a valid, current agency registration certificate for that establishment before the delivery of dry cleaning solvent can be made or accepted.(2) The owner of the dry cleaning facility or drop station shall immediately display, upon request by agency staff, a valid, current agency registration certificate for that establishment.(3) The dry cleaning facility or dry cleaning drop station owner shall ensure that a valid, current agency registration certificate is displayed at a facility or drop station. The original registration certificate must be posted in a public area where the document is clearly visible.(4) In the event of the sale of a dry cleaning facility or a dry cleaning drop station, the previous owner's valid, current certificate may be used to purchase dry cleaning solvent for 30 days after the effective date of sale.(e) Annual registration certificate renewal.(1) The initial registration certificate issued for a dry cleaning facility or dry cleaning drop station will be valid until the expiration date indicated on that certificate. It is the responsibility of the owner to ensure that an application for renewal of that certificate is properly and timely submitted to the agency.(2) A registration certificate is renewed by timely and proper submission of a new registration form to the agency. The agency will not issue a new registration certificate for registration forms that are determined by the executive director to be incomplete or inaccurate.(3) A new registration form must be completed by the owner of a dry cleaning facility or dry cleaning drop station and submitted to the agency by August 1st of each year.(f) Revocation or denial of a certificate by the executive director.(1) The executive director may revoke or deny issuance of a certificate:(A) if the certificate was acquired by fraud, misrepresentation, or knowing failure to disclose material information;(B) if the owner of a dry cleaning facility or dry cleaning drop station is in violation of any of the requirements of this chapter or Texas Health and Safety Code, Chapter 374; or(C) for any reason the executive director determines to be good cause for denial or revocation.(2) Prior to revocation or denial of a certificate pursuant to this subsection, the executive director shall provide notice to the owner of the dry cleaning facility or dry cleaning drop station of the facts alleged to warrant revocation or denial. The notice must be in writing and sent via certified mail, return receipt requested. If the certified mail is returned to the executive director as unclaimed, notice is presumed to be received by the owner five days after mailing when:(A) the notice was sent to the address indicated on the owner's most current registration; and(B) the notice was sent simultaneously via first class mail, postage paid.(3) The owner shall have 30 days after receipt of notice to demonstrate to the executive director whether or not compliance has been maintained with all requirements of law for the retention of the certificate. The executive director shall make a determination whether to revoke or deny the certificate and shall provide such determination in writing to the owner.(4) The owner may appeal for commission review of the executive director's determination to revoke or deny a certificate pursuant to this subsection. An appeal must be in writing and filed by United States mail, facsimile, or hand delivery with the commission's Office of the Chief Clerk no later than 23 days after the date the agency mails notice of the executive director's determination to revoke or deny a certificate. The original and 11 copies of the appeal must be filed. If the appeal is filed by facsimile, the owner must file with the Office of the Chief Clerk the original and 11 copies by mail or hand delivery within three days. If an appeal meeting the requirements of this subsection is not filed within the time period specified, the executive director's determination is final.(A) In addition to filing the appeal with the Office of the Chief Clerk, the owner shall mail or deliver a copy of the appeal to:(i) the executive director; and(ii) the Office of the Public Interest Counsel.(B) An appeal filed under this subsection must:(i) provide a copy of the owner's registration information;(ii) specify the executive director determination for which commission review is being sought;(iii) request commission consideration of the executive director determination; and(iv) explain the basis for the appeal.(C) A proceeding based upon an appeal filed under this subsection is not a contested case for purposes of Texas Government Code, Chapter 2001.(g) In addition to subsection (f) of this section, the executive director may seek to revoke a certificate by filing a petition in accordance with the procedures set forth in Chapter 70 of this title (relating to Enforcement) if the executive director determines that any of the reasons in subsection (f)(1) of this section exist.(h) Revocation of a certificate under subsection (f) or (g) of this section is cumulative of any other remedies available to the agency by law.</content><note type="source"><p>Source Note: The provisions of this §337.11 adopted to be effective June 1, 2005, 30 TexReg 3108; amended to be effective February 1, 2006, 31 TexReg 548; amended to be effective June 26, 2008, 33 TexReg 4898.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scB/s337.12"><num value="337.12">§337.12</num><heading>Registration for Distributors</heading><content>(a) Registration.(1) Any distributor as defined in §337.3 of this title (relating to Definitions) in operation on or after September 1, 2003, shall register with the agency in accordance with this section.(2) The distributor is responsible for compliance with the registration requirements of this section. A distributor may designate a legally authorized representative to complete and submit the required registration information. However, the distributor remains responsible for compliance with the provisions of this section by such representative.(b) Changes or additional information.(1) The distributor shall provide written notice to the executive director of any changes or additional information to the registration information. Types of changes or additional information subject to this requirement include change in owner, change in owner information (e.g., mailing address, contact person, and telephone number), or change in the location of records.(2) Notice of any change or additional information must be submitted on the appropriate agency form, which has been completed in accordance with this section. The distributor's registration number must be included in the appropriate space on the form.(3) Notice of any change or additional information must be submitted to the agency within 30 days from the date of the occurrence of the change or addition.(c) Required form for providing distributor registration information.(1) A distributor submitting registration information to the executive director shall provide the required information on the current agency dry cleaning solvent distributor report form.(2) The distributor is responsible for ensuring that the dry cleaning solvent distributor report form is fully complete and accurate. The form must be dated and signed by the owner or a legally authorized representative of the owner, and must be submitted to the executive director prior to commencing operations or as set forth in subsection (a)(1) of this section.(3) Distributors that maintain or use more than one place of business shall complete and submit a separate form for each place of business.(4) When any of the required distributor registration information submitted to the executive director is determined to be incomplete or inaccurate (including illegible or unclear information), the executive director may require the distributor to submit additional information. A distributor shall submit any such required additional information within 30 days of receipt of such request.</content><note type="source"><p>Source Note: The provisions of this §337.12 adopted to be effective June 1, 2005, 30 TexReg 3108.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scB/s337.13"><num value="337.13">§337.13</num><heading>Distributor Registration Certificate</heading><content>(a) Completion of the dry cleaning solvent distributor report form. Upon the executive director's determination that a submitted dry cleaning solvent distributor report form has been completed in accordance with this chapter and that all fees, penalties, and interest owed to the agency have been paid, a distributor registration certificate will be issued for the place of business covered by that registration. This certificate is necessary for the delivery of dry cleaning solvent under §337.4 of this title (relating to General Prohibitions and Requirements).(b) Incomplete or inaccurate dry cleaning solvent distributor report form or nonpayment. The executive director will not issue a distributor registration certificate for dry cleaning solvent distributor report forms determined by the executive director to be incomplete or inaccurate (including illegible or unclear information) or if any fees, penalties, or interest are owed to the agency. In order for a form to be complete, the form must contain all requested information with clear, legible, and true responses.(c) Issuance of a registration certificate. The executive director's issuance of a registration certificate for a distributor does not constitute agency certification or affirmation of the compliance status of a location with this chapter, the Texas Water Code, or the Texas Health and Safety Code; or preclude the agency from investigating a location and pursuing enforcement action when apparent violations are discovered.(d) Registration certificate availability.(1) Prior to delivery of any dry cleaning solvent, a distributor shall make available to a person purchasing dry cleaning solvent a valid, current agency distributor registration certificate, or a legible copy of the certificate.(2) A distributor shall immediately display, upon request by agency staff, a valid, current agency registration certificate for a place of business.(3) A distributor shall display the original agency registration certificate at the place of business. The original registration certificate must be posted in a public area where the certificate is clearly visible.(e) Revocation or denial of certificate by the executive director.(1) The executive director may revoke or deny issuance of a certificate:(A) if the certificate was acquired by fraud, misrepresentation, or knowing failure to disclose material information;(B) if the distributor is in violation of any of the requirements of this chapter or Texas Health and Safety Code, Chapter 374, including late remittance of solvent fees and non-remittance of solvent fees; or(C) for any reason the executive director determines to be good cause for denial or revocation.(2) Prior to the revocation or denial of a certificate in accordance with this subsection, the executive director shall provide notice to the distributor of the facts alleged to warrant revocation or denial. The notice must be in writing and sent via certified mail, return receipt requested. If the certified mail is returned to the executive director as unclaimed, notice is presumed to be received by the distributor five days after mailing when:(A) the notice was sent to the address indicated on the distributor's most current registration; and(B) the notice was sent simultaneously via first class mail, postage paid.(3) The distributor shall have 30 days after receipt of notice to demonstrate to the executive director whether or not compliance has been maintained with all requirements of law for the retention of the certificate. The executive director shall make a determination whether to revoke or deny the certificate and shall provide such determination in writing to the distributor.(4) The distributor may appeal for commission review of the executive director's determination to revoke or deny a certificate pursuant to this subsection. An appeal must be in writing and filed by United States mail, facsimile, or hand delivery with the commission's Office of the Chief Clerk no later than 23 days after the date the agency mails notice of the executive director's determination to revoke or deny a certificate. The original and 11 copies of the appeal must be filed. If the appeal is filed by facsimile, the distributor must file with the Office of the Chief Clerk the original and 11 copies by mail or hand delivery within three days. If an appeal meeting the requirements of this subsection is not filed within the time period specified, the executive director's determination is final.(A) In addition to filing the appeal with the Office of the Chief Clerk, the distributor shall mail or deliver a copy of the appeal to:(i) the executive director; and(ii) the Office of the Public Interest Counsel.(B) An appeal filed under this subsection must:(i) provide a copy of the distributor's registration information;(ii) specify the executive director determination for which commission review is being sought;(iii) request commission consideration of the executive director determination; and(iv) explain the basis for the appeal.(C) A proceeding based upon an appeal filed under this subsection is not a contested case for purposes of Texas Government Code, Chapter 2001.(f) In addition to subsection (e) of this section, the executive director may seek to revoke a certificate by filing a petition in accordance with the procedures set forth in Chapter 70 of this title (relating to Enforcement) if the executive director determines that any of the reasons in subsection (e)(1) of this section exist.(g) Revocation of a certificate under subsection (e) or (f) of this section is cumulative of any other remedies available to the agency by law.</content><note type="source"><p>Source Note: The provisions of this §337.13 adopted to be effective June 1, 2005, 30 TexReg 3108; amended to be effective February 1, 2006, 31 TexReg 548; amended to be effective June 26, 2008, 33 TexReg 4898.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scB/s337.14"><num value="337.14">§337.14</num><heading>Registration Fees for Dry Cleaning Facilities and Drop Stations</heading><content>(a) Except for registration fees payable for operations conducted before September 1, 2005, each owner of an operating dry cleaning facility or dry cleaning drop station shall pay the registration fees set forth in Texas Health and Safety Code, §374.102. The owner of the dry cleaning facility or dry cleaning drop station on or after September 1 of each state fiscal year is responsible for the registration fees owed for the state fiscal year beginning on September 1. However, if a person acquires a dry cleaning facility or dry cleaning drop station that does not have a current registration certificate, the facility or drop station would have to be registered and the fee paid before a current registration certificate would be issued.(b) Registration fees payable for operation of a facility or drop station before September 1, 2005, will be assessed and payable at the rates in effect before September 1, 2005.(c) The annual registration fee may be divided into quarterly payments and billed on dates established by the executive director. Payment in full is due within 30 days of the agency invoice date. The fees must be paid by check, certified check, money order, or electronic funds transfer made payable to the "Texas Commission on Environmental Quality."(d) The registration certificate will not be issued until registration fees, penalties, and interest assessed are paid in full.(e) Owners that fail to pay registration fees when due shall pay penalties and interest in accordance with Chapter 12 of this title (relating to Payment of Fees).</content><note type="source"><p>Source Note: The provisions of this §337.14 adopted to be effective June 1, 2005, 30 TexReg 3108; amended to be effective February 1, 2006, 31 TexReg 548; amended to be effective June 26, 2008, 33 TexReg 4898.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scB/s337.15"><num value="337.15">§337.15</num><heading>Solvent Fees</heading><content>(a) Except as provided in subsection (b) of this section, an owner of a dry cleaning facility shall pay to the distributor the fees for the purchase of dry cleaning solvents, including reclaimed or recycled solvents, as set forth in Texas Health and Safety Code, §374.103.(b) The following are exempt from the fees required in subsection (a) of this section:(1) a nonparticipating facility or drop station as designated in accordance with Texas Health and Safety Code, §374.104, for which the owner has submitted the appropriate affidavit to the executive director and received a nonparticipating non-perchloroethylene user registration certificate; and(2) an owner to whom the executive director has issued a participating non-perchloroethylene user registration certificate.(c) The person that distributes the dry cleaning solvent shall collect the fee when the dry cleaning solvent is sold and remit the fee to the agency as required by this section. Solvent is considered sold when it is paid for in full or when delivered or otherwise distributed to the dry cleaning facility, whichever occurs first. A distributor is required to remit solvent fees due to the agency for any solvent that is considered sold, regardless of whether or when the distributor collected the fee from the dry cleaning facility to which the solvent was delivered or otherwise distributed.(1) On or before the due dates, the distributor shall submit a report to the executive director, on a form approved by the executive director, and remit the amount of fees required to be collected for the associated reporting period less any amount the distributor is entitled to withhold under the provisions of Texas Health and Safety Code, §374.103(a)(1). The report must set forth each sale of dry cleaning solvent with the associated facility registration numbers, name, address, solvent types and amounts, and dates of delivery. The report also must set forth the total amount of fees collected by the distributor for the period, the amount withheld by the distributor under the provisions of Texas Health and Safety Code, §374.103(a)(1), if any, and the total amount to be remitted to the commission. The following are the due dates and associated reporting periods.(A) The report and payment for the period of September 1 - November 30 must be received by the agency by December 20.(B) The report and payment for the period of December 1 - February 28/29 must be received by the agency by March 20.(C) The report and payment for the period of March 1 - May 31 must be received by the agency by June 20.(D) The report and payment for the period of June 1 - August 31 must be received by the agency by September 20.(2) Upon receipt of payment for the solvent or delivery or other distribution to the dry cleaning facility, whichever occurs first, the distributor shall obtain and record the registration number and registration expiration date of the facility to which the solvent is sold, delivered, or otherwise distributed.(3) The distributor shall retain the invoice or a copy of the invoice or other appropriate record of the sale of the solvent for five years from the date of sale.(4) For the amount of the fee due, the distributor shall:(A) separately state the amount on the invoice, bill, or contract to the customer and identify it as the Texas solvent fee;(B) in the case of a fraction of a gallon, compute the fee by multiplying the fraction by the amount of the fee imposed on a whole gallon;(C) not include the fee in, or add the fee to, the solvent price for the purpose of calculating the amount of sales tax due, if any; and(D) not explicitly or implicitly absorb, assume, or refund the fee.(5) Solvent fees collected by the distributor are held in trust for the agency, are not the property of the distributor, and are not to be used by the distributor for any other purpose. Any amount due to the distributor under the provisions of Texas Health and Safety Code, §374.103(a)(1), does not become property of the distributor until the date on which the distributor remits the remaining amount to the commission.(6) At any time, the executive director may request in writing that the distributor remit the amount of fees required to be collected up to a date certain as determined by the executive director. The distributor shall remit such amount to the agency within ten days of receiving the executive director's request.(7) The distributor must pay the fees by check, certified check, money order, or electronic funds transfer made payable to the "Texas Commission on Environmental Quality."(8) Late payment and returned checks.(A) Distributors that fail to pay quarterly solvent fees when due shall forfeit any right or claim to withhold a portion of fees collected for administrative expenses as provided in Texas Health and Safety Code, §374.103(a)(1), and shall pay penalties and interest in accordance with Chapter 12 of this title (relating to Payment of Fees).(B) In addition to penalties, interest, and other amounts that may apply, if the distributor does not remit any of the required amount by the due date or a distributor's check is returned for insufficient funds, the executive director may require the distributor to remit collected fees on a different basis and time frame than set forth in this subsection.</content><note type="source"><p>Source Note: The provisions of this §337.15 adopted to be effective June 1, 2005, 30 TexReg 3108; amended to be effective February 1, 2006, 31 TexReg 548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scB/s337.16"><num value="337.16">§337.16</num><heading>Registration by Property Owner or Preceding Property Owner</heading><content>(a) Registration.(1) To be eligible to participate in Dry Cleaning Facility Release Fund benefits, a property owner or preceding property owner must register with the agency in accordance with this section.(2) Prior to applying for corrective action at a site under the Dry Cleaning Facility Release Fund, a property owner or preceding property owner must register the site in accordance with subsection (c) of this section and hold a registration certificate in accordance with §337.17 of this title (relating to Property Owner or Preceding Property Owner Registration Certificate).(3) Registration under this section is due by December 31, 2007. In order to register a site after December 31, 2007, a property owner or preceding property owner must first pay all past annual registration fees and any late fees due pursuant to Texas Health and Safety Code, §374.1022(c).(4) A property owner or preceding property owner who registers a site under this section is responsible for compliance with the registration requirements of this section. A property owner or preceding property owner may designate a legally authorized representative to complete and submit the required registration information. However, the property owner or preceding property owner remains responsible for compliance with the provisions of this section by such representative.(5) All sites registered under this section are subject to the fee and payment requirements of §337.18 of this title (relating to Registration Fees for Property Owners and Preceding Property Owners).(b) Changes or additional information.(1) Once a site is registered under this section, the property owner or preceding property owner shall provide written notice to the executive director of any changes or additional information concerning the site. Types of changes or additional information subject to this requirement include the following:(A) change in owner or change in owner information (e.g. legally authorized representative, mailing address, or telephone number);(B) change in site information (e.g. address or telephone number); and(C) change in location of records for the site.(2) Notice of any change or additional information must be submitted on the appropriate agency form that has been completed in accordance with this section. The agency's registration numbers for the site must be included in the appropriate spaces on the form.(3) Notice of any change or additional information must be submitted to the agency within 30 days from the date of the occurrence of the change or addition.(c) Required form for providing site registration information.(1) A property owner or preceding property owner submitting registration information to the executive director shall provide the required information on the current agency registration form.(2) The property owner or preceding property owner is responsible for ensuring that the registration form is fully complete and accurate. The form must be dated and signed by the property owner or preceding property owner or a legally authorized representative, and must be submitted to the executive director prior to applying for corrective action under the Dry Cleaning Facility Release Fund.(3) The property owner or preceding property owner shall complete and submit a separate registration form for each site.(4) If additional information, drawings, or other documents are submitted with new or revised registration data, specific site identification information (including the site registration number) must be conspicuously indicated on each document, and all such documents must be attached to and submitted with the form.(5) When any of the required registration information submitted to the executive director is determined to be incomplete or inaccurate (including illegible or unclear information), the executive director may require the property owner or preceding property owner to submit additional information. A property owner or preceding property owner shall submit any required additional information within 30 days of receipt of such request.</content><note type="source"><p>Source Note: The provisions of this §337.16 adopted to be effective June 26, 2008, 33 TexReg 4898.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scB/s337.17"><num value="337.17">§337.17</num><heading>Property Owner or Preceding Property Owner Registration Certificate</heading><content>(a) Before the executive director evaluates a registration to determine if a registration certificate should be issued, each registration must be administratively complete. A registration is not administratively complete if:(1) the registration form has not been completed and submitted to the agency in accordance with this chapter;(2) the registration form does not contain all requested information with clear, legible, and true responses; or(3) all fees, penalties, and interest owed to the agency have not been paid.(b) Upon the executive director's determination that a submitted registration is administratively complete, a registration certificate will be issued to the property owner or preceding property owner, as applicable, for the site covered by the registration form, as long as the executive director has no reason to deny the registration certificate under this section. This certificate is necessary for a property owner or preceding property owner to apply for corrective action under the Dry Cleaning Facility Release Fund.(c) A property owner or preceding property owner shall immediately display, upon request by agency staff, a valid agency registration certificate for a property.(d) Revocation or denial of certificate by the executive director.(1) The executive director may revoke or deny issuance of a certificate:(A) if the certificate was acquired by fraud, misrepresentation, or knowing failure to disclose material information;(B) if the property owner or preceding property owner is in violation of any of the requirements of this chapter or Texas Health and Safety Code, Chapter 374, including late remittance and non-remittance of fees; or(C) for any reason the executive director determines to be good cause for denial or revocation.(2) Prior to the revocation or denial of a certificate pursuant to this subsection, the executive director shall provide notice to the property owner or preceding property owner of the facts alleged to warrant revocation or denial. The notice must be in writing and sent via certified mail, return receipt requested. If the certified mail is returned to the executive director as unclaimed, notice is presumed to be received by the property owner or preceding property owner five days after mailing when:(A) the notice was sent to the address indicated on the property owner or preceding property owner's most current registration; and(B) the notice was sent simultaneously via first class mail, postage paid.(3) The property owner or preceding property owner shall have 30 days after receipt of notice to demonstrate to the executive director whether or not compliance has been maintained with all requirements of law for the retention of the certificate. The executive director shall make a determination whether to revoke or deny the certificate and shall provide such determination in writing to the property owner or preceding property owner.(4) The property owner or preceding property owner may appeal for commission review of the executive director's determination to revoke or deny a certificate pursuant to this subsection. An appeal must be in writing and filed by United States mail, facsimile, or hand delivery with the commission's Office of the Chief Clerk no later than 23 days after the date the agency mails notice of the executive director's determination to revoke or deny a certificate. The original and 11 copies of the appeal must be filed. If the appeal is filed by facsimile, the property owner or preceding property owner must file with the Office of the Chief Clerk the original and 11 copies by mail or hand delivery within three days. If an appeal meeting the requirements of this subsection is not filed within the time period specified, the executive director's determination is final.(A) In addition to filing the appeal with the Office of the Chief Clerk, the property owner or preceding property owner shall mail or deliver a copy of the appeal to:(i) the executive director; and(ii) the Office of the Public Interest Counsel.(B) The appeal filed under this subsection must:(i) include a copy of the property owner or preceding property owner's registration information;(ii) specify the executive director determination for which commission review is being sought;(iii) request commission consideration of the executive director determination; and(iv) explain the basis for the appeal.(C) A proceeding based upon an appeal filed under this subsection is not a contested case for purposes of Texas Government Code, Chapter 2001.(e) In addition to subsection (d) of this section, the executive director may seek to revoke a certificate by filing a petition in accordance with the procedures set forth in Chapter 70 of this title (relating to Enforcement) if the executive director determines that any of the reasons in subsection (d)(1) of this section exist.(f) Revocation of a certificate under subsection (d) or (e) of this section is cumulative of any other remedies available to the agency by law.</content><note type="source"><p>Source Note: The provisions of this §337.17 adopted to be effective June 26, 2008, 33 TexReg 4898.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scB/s337.18"><num value="337.18">§337.18</num><heading>Registration Fees for Property Owners and Preceding Property Owners</heading><content>(a) A property owner or preceding property owner who registers a site pursuant to §337.16 of this title (relating to Registration by Property Owner or Preceding Property Owner) shall pay the annual registration fee and any applicable past annual registration fees and late fees set forth in Texas Health and Safety Code (THSC), §374.1022 for each registered site.(b) The annual registration fee may be divided into quarterly payments and billed on dates established by the executive director. A property owner or preceding property owner who registers a site pursuant to §337.16 of this title on or after the first day of a billing quarter is responsible for the registration fee due for the entire billing quarter.(c) Past annual registration fees and late fees must be paid in full at the time of registration and may not be divided into quarterly payments.(d) Payment in full is due within 30 days of the agency invoice date. The fees must be paid by check, certified check, money order, or electronic funds transfer made payable to the "Texas Commission on Environmental Quality."(e) The registration certificate will not be issued until all registration fees and any late fees due pursuant to THSC, §374.1022, in addition to any penalties and interest assessed, are paid in full.(f) Property owners or preceding property owners who fail to pay registration fees when due shall pay penalties and interest in accordance with Chapter 12 of this title (relating to Payment of Fees).(g) A property owner or preceding property owner who has registered a site pursuant to §337.16 of this title must continue to pay annual registration fees in accordance with THSC, §374.1022 for the duration of corrective action at the site under the Dry Cleaning Facility Release Fund.</content><note type="source"><p>Source Note: The provisions of this §337.18 adopted to be effective June 26, 2008, 33 TexReg 4898.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c337/scC"><num value="C">SUBCHAPTER C</num><heading>PERFORMANCE STANDARDS AND WASTE REMOVAL</heading><section identifier="/us/state/tx/tac/t30/p1/c337/scC/s337.20"><num value="337.20">§337.20</num><heading>Performance Standards</heading><content>(a) Applicability. Unless otherwise specifically stated, these performance standards apply to all dry cleaning facilities, including those that have a nonparticipating non-perchloroethylene user certificate.(b) Compliance deadlines.(1) Unless otherwise specifically stated in this section, owners of all operating dry cleaning facilities must comply with this section by the deadlines set forth in Texas Health and Safety Code, §374.052(a) and House Bill 1366 (Chapter 540, §3(b)), 78th Legislature, May 24, 2003.(2) Owners of all new dry cleaning facilities shall construct and operate the facilities in compliance with this section.(c) Storage, treatment, and disposal of dry cleaning wastes. Any person at a dry cleaning facility that generates hazardous wastes shall comply with the provisions specified under Chapter 335, Subchapter C of this title (relating to Standards Applicable to Generators of Hazardous Waste).(d) Air emission standards.(1) The owner of a dry cleaning facility shall comply with Chapter 106 of this title (relating to Permits by Rule) or Chapter 116 of this title (relating to Control of Air Pollution by Permits for New Construction or Modification).(2) The owner of a dry cleaning facility using perchloroethylene and any person using perchloroethylene at a dry cleaning facility shall comply with emission standards for hazardous air pollutants as specified in 40 Code of Federal Regulations Part 63, Subpart M, in effect September 22, 1993.(3) Each owner of a dry cleaning facility that is a major source as defined in Chapter 122 of this title (relating to Federal Operating Permits Program) shall obtain an operating permit.(e) Dikes and other secondary containment structures.(1) Applicability. This subsection applies to:(A) all dry cleaning facilities using chlorinated dry cleaning solvents; and(B) all other dry cleaning facilities that replace or install a dry cleaning machine on or after September 1, 2005.(2) Compliance deadlines. The compliance deadlines set forth in subsection (b) of this section apply to all dry cleaning facilities with the exception of dry cleaning facilities in operation on or before January 1, 2004, that have gross annual receipts of $150,000 or less (as indicated on the most current registration form filed with the agency). These dry cleaning facilities have until January 1, 2015, to comply with this subsection. However, if before January 1, 2015, a qualifying dry cleaning facility begins to have gross annual receipts greater than $150,000, the dry cleaning facility must meet the requirements of this subsection by August 1 of the year following the time the facility exceeded $150,000 in annual gross receipts.(3) Installation.(A) Each owner of a dry cleaning facility shall install a dike or other secondary containment structure around each dry cleaning unit and around each storage area for dry cleaning solvents, dry cleaning waste, or dry cleaning wastewater.(B) Each secondary containment structure must be maintained in good condition and capable of containing any leak, spill, or release of dry cleaning solvents in accordance with this subsection.(C) Floor drains must not be located within any secondary containment structure required by this subsection.(4) Construction materials.(A) The materials used to construct each secondary containment structure must be impervious to, and compatible with, the dry cleaning solvents, dry cleaning wastes, and dry cleaning wastewater used or stored within the secondary containment structure.(B) For any dry cleaning unit using chlorinated dry cleaning solvents and any storage area for chlorinated dry cleaning solvents, chlorinated dry cleaning wastes, or chlorinated dry cleaning wastewater, materials other than epoxy or steel may be used for the construction of the secondary containment structure only upon approval by the executive director. Approval for the use of a material other than epoxy or steel will be granted upon satisfactory demonstration to the executive director that the material is as compatible with, and impervious to, dry cleaning solvent as epoxy or steel.(C) All sealant and all caulk used on each secondary containment structure must be impervious to and compatible with the dry cleaning solvent, dry cleaning waste, or dry cleaning wastewater used or stored within the secondary containment structure.(5) Storage capacity.(A) Dry cleaning machine. Each secondary containment structure installed after September 1, 2005, must be capable of completely containing a minimum of 110% of the volume of liquids that can be held within the largest tank on a machine. The secondary containment area must be kept free of all materials or objects that would diminish its capacity to contain a leak, spill, or release.(B) Storage area. Each secondary containment structure installed after September 1, 2005, must be capable of completely containing a minimum of 110% of the volume of liquids that can be held within the largest container in a storage area. The secondary containment area must be kept free of all materials or objects that would diminish its capacity to contain a leak, spill, or release.(6) Inspections. The owner of each dry cleaning facility shall visually inspect each installed secondary containment structure weekly to ensure that the structure is not damaged.(A) The owner of each dry cleaning facility shall ensure that any damage is repaired within seven days after the discovery. The owner may request an extension of this time limit from the executive director. If there is a release or imminent threat of release of dry cleaning solvents, the owner shall ensure that any release is immediately contained and controlled and that the dry cleaning machine is temporarily removed from service until the damage is repaired within the seven-day time limit.(B) The owner of each dry cleaning facility shall keep a log of these inspections which include, as a minimum, the following information. This information must be provided to the executive director upon request:(i) the date and time of each inspection;(ii) the name of the person conducting the inspection;(iii) a brief notation of findings; and(iv) the date and nature of each repair or other action taken.(C) For dry cleaning facilities using chlorinated solvents, inspection logs required under this section may be added to the leak inspection and repair records required by 40 Code of Federal Regulations Part 63, Subpart M, for dry cleaning equipment containing chlorinated solvent.(D) Each inspection and repair log must be kept at the dry cleaning facility for not less than five years after the log has been completed.(f) Delivery of solvents.(1) Chlorinated dry cleaning solvents. All chlorinated dry cleaning solvents must be delivered to dry cleaning units and solvent storage containers by means of either of the following:(A) a closed, direct-coupled delivery system; or(B) an alternative method submitted to, and approved by, the executive director that provides protection of human health and safety and the environment that is equivalent to or greater than the protection provided by direct-coupled delivery systems.(2) Non-chlorinated dry cleaning solvents, except for carbon dioxide solvents. All non-chlorinated dry cleaning solvents, except for carbon dioxide, must be delivered to dry cleaning units and solvent storage containers in a manner that will minimize releases to the environment.</content><note type="source"><p>Source Note: The provisions of this §337.20 adopted to be effective June 1, 2005, 30 TexReg 3108; amended to be effective February 1, 2006, 31 TexReg 548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scC/s337.21"><num value="337.21">§337.21</num><heading>Removal of Dry Cleaning Solvents and Wastes</heading><content>(a) Disposal of dry cleaning wastes. Each owner of a dry cleaning facility shall ensure that all dry cleaning wastes are disposed of in accordance with §337.20 of this title (relating to Performance Standards).(b) Dry cleaning facility that ceases operation. Each owner of a dry cleaning facility that ceases operation as a dry cleaning facility for 180 continuous days shall ensure that dry cleaning solvent (including dry cleaning solvent remaining in any dry cleaning machine), dry cleaning wastewater, and waste materials containing dry cleaning solvent, are removed from the dry cleaning facility within 30 days after the end of the 180-day period. An owner of a dry cleaning facility shall ensure that the dry cleaning solvent and solvent-containing residue from a dry cleaning machine is removed prior to the dry cleaning machine being disposed of, recycled, or reused.(c) Dry cleaning machines temporarily removed from service.(1) Dry cleaning machines that are temporarily removed from service for more than 180 days must be empty within 30 days after the end of the 180-day period and must meet all applicable performance standards until empty.(2) Each owner of a dry cleaning facility shall ensure that weekly inspections are continued on any dry cleaning machine that is temporarily removed from service and is not empty.(3) Prior to a dry cleaning machine being put back in service, the owner of a dry cleaning facility must ensure that the machine meets all applicable performance standards.(d) Dry cleaning machines permanently removed from service. Dry cleaning machines that are permanently removed from service must be empty prior to removal from the interior of the facility.</content><note type="source"><p>Source Note: The provisions of this §337.21 adopted to be effective June 1, 2005, 30 TexReg 3108.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scC/s337.22"><num value="337.22">§337.22</num><heading>Variances and Alternative Procedures</heading><content>(a) Prior to proceeding in any manner that differs from the requirements of this subchapter, a person shall secure written approval from the executive director in the form of a variance in accordance with this section.(b) The executive director may review and approve requests for variances that meet the requirements in this section. The executive director will approve such requests only if the person requesting the variance can demonstrate to the executive director that the proposed alternative procedure and/or equipment is no less protective of human health and safety and the environment than the requirement(s) for which the variance is sought.(c) Any request to the executive director for approval of a variance must be made in writing, signed and dated by the person requesting the variance, and accompanied by the following additional documentation:(1) proposed date for implementation of the alternative procedure and/or equipment;(2) sufficient documentation to describe or illustrate the alternative procedure and/or equipment, such as:(A) plans, drawings, and detail sheets (drawn to scale);(B) design and construction specifications; and(C) equipment manufacturers' specifications, operating instructions, and warranty information;(3) documentation and supporting data that demonstrate, to the satisfaction of the executive director, the reliability and appropriateness of the proposed procedure and/or equipment;(4) complete explanation of the reasons why the proposed procedure and/or equipment are considered preferable to the requirement for which the variance is sought or why that requirement is considered impracticable for the specified facility;(5) documentation that demonstrates, to the satisfaction of the executive director, that use of the proposed alternative procedure and/or equipment will be no less protective of human health and safety and the environment than adhering to the requirement(s) for which the variance is sought; and(6) if the person requesting the variance is the owner or a representative of the owner of a dry cleaning facility, the request must also include:(A) written concurrence by the location owner, if different from the dry cleaning facility owner; and(B) complete project identification, including:(i) location name, address, and location identification number (if known);(ii) location owner's name, address, and telephone number; and(iii) name, address, and telephone number of dry cleaning facility owner's/operator's authorized representative.(d) If a variance is granted by the executive director, the dry cleaning facility owner shall maintain complete copies of the variance and supporting documentation (including the request for approval).(e) When a variance is sought, the owner shall adhere to the requirement in question until such time as the owner receives a written variance that allows an alternative procedure and/or equipment for that requirement.(f) Once an owner has received a written variance from the executive director under this section, the owner shall adhere to the terms of that variance as written, or to the terms of the requirement for which the variance was sought.</content><note type="source"><p>Source Note: The provisions of this §337.22 adopted to be effective June 1, 2005, 30 TexReg 3108; amended to be effective February 1, 2006, 31 TexReg 548.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c337/scD"><num value="D">SUBCHAPTER D</num><heading>PRIORITIZATION AND RANKING</heading><section identifier="/us/state/tx/tac/t30/p1/c337/scD/s337.30"><num value="337.30">§337.30</num><heading>Prioritization of Sites</heading><content>(a) The executive director will prioritize sites for corrective action as follows.(1) A site will only be eligible for prioritization if it has been ranked with the dry cleaning site ranking system.(2) Sites will be prioritized at least semiannually beginning on January 1 and July 1. Administratively and technically complete applications must be received on or before March 1 of each year to ensure consideration for prioritization starting July 1. Applications must be received on or before September 1 of each year to ensure consideration for prioritization starting January 1. The prioritization will be based on the ranking effective January 1 or July 1 and other considerations outlined in subsection (b) of this section.(b) The relative priority for corrective action at a site will be based on the following factors:(1) the dry cleaning site ranking system;(2) the benefit to be derived from corrective action compared to the cost of implementing the corrective action;(3) the effect that interim or immediate remedial measures may have on future costs;(4) the amount of money available in the Dry Cleaning Facility Release Fund for corrective action;(5) cost savings to the Dry Cleaning Facility Release Fund realized when corrective action is undertaken during redevelopment or other activity near the site;(6) necessity of emergency action; and(7) any other factor the executive director considers relevant to the prioritization of sites.(c) The executive director may re-prioritize sites during the semiannual prioritization in subsection (a)(2) of this section. This re-prioritization may result in a site being assigned a new priority below the level eligible for available funding, which may result in the termination or suspension of corrective action at the site.</content><note type="source"><p>Source Note: The provisions of this §337.30 adopted to be effective June 1, 2005, 30 TexReg 3108; amended to be effective February 1, 2006, 31 TexReg 548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scD/s337.31"><num value="337.31">§337.31</num><heading>Ranking of Sites</heading><content>(a) Dry cleaning site ranking system.(1) The dry cleaning site ranking system is a methodology designed to determine a numerical score for a facility based on the executive director's judgment regarding various factors that may impact human health or the environment.(2) The executive director will rank dry cleaning sites based on information provided in an application for ranking package. An application for ranking will be accepted from persons eligible to apply for a site to be ranked under Texas Health and Safety Code, §374.154(b).(3) An application for ranking package must contain:(A) a completed application for ranking;(B) proof that an owner of the real property has been notified of the application if the applicant is not an owner of the real property;(C) proof that a lessee has been notified of the application if the applicant is an owner of the real property and the facility is leased;(D) evidence that the deductible has been met in accordance with Subchapter E of this chapter (relating to Deductible);(E) laboratory analyses of at least one groundwater sample (soil analyses may be substituted with written approval of the executive director);(F) geologic well log(s) from a monitoring or supply well or hydrogeologic information from the contaminated site where the groundwater or soil sample was taken;(G) field survey to locate potential receptors, including water wells and surface waters to at least 500 feet beyond the boundary of the property;(H) a records survey to identify all water wells and surface water bodies within 1/2 mile of the boundary of the property;(I) a full operational history of the facility including types of solvent currently and previously used; and(J) any other information or evidence the executive director considers necessary.(4) Application for ranking packages that are not administratively and technically complete as determined by the executive director will not be ranked. The executive director will notify the applicant in writing of such a determination.(5) Factors the executive director may consider in ranking sites include:(A) types of solvent currently in use;(B) types of solvent used in the past;(C) operational history of the facility;(D) risk to drinking water supplies;(E) surface water:(i) demonstrated impact to surface water;(ii) distance to surface water; and(iii) probability of contamination;(F) groundwater:(i) aquifer impacted;(ii) depth to groundwater;(iii) distance to nearest known groundwater wells;(iv) areal extent of groundwater contaminated;(v) subsurface geology as it affects contamination migration;(vi) concentrations of dry cleaning solvent in the groundwater;(vii) probability of contamination; and(viii) institutional controls prohibiting the use of groundwater for potable purposes;(G) alternative water source availability;(H) soil:(i) soil type;(ii) depth to groundwater;(iii) depth of contamination;(iv) concentrations of dry cleaning solvent in the soil;(v) quantity of soil contaminated;(vi) potential for exposure to the contaminated soils; and(vii) soil on the outcrop of a major or minor aquifer, or the Edwards Aquifer recharge or transition zone;(I) current and future land use; and(J) air contamination:(i) potential for exposure to vapors; and(ii) potential for vapors to migrate into buildings or other receptors.(6) For all applications that are technically and administratively complete, the executive director will rank the site and notify an applicant of the relative ranking assigned to the applicant's site on or before the 90th day after the date the application is received by the executive director.(7) If a site has already been ranked by the executive director, an applicant may submit an updated application for ranking to reflect changes in site conditions as a result of corrective action or other circumstances. Such updates will be limited to one per site per state fiscal year.(8) The executive director may re-rank sites where corrective action has occurred using monies from the Dry Cleaning Facility Release Fund to reflect changes in site conditions as a result of corrective action or other circumstances.(b) Even if a site has been ranked, a person may take corrective action at the person's own expense at any time in accordance with commission rules. The resulting expenses will not be reimbursed by the commission. In addition to any other notice required, an applicant shall give the executive director notice of such corrective action within 30 days after the action is completed.</content><note type="source"><p>Source Note: The provisions of this §337.31 adopted to be effective June 1, 2005, 30 TexReg 3108; amended to be effective February 1, 2006, 31 TexReg 548; amended to be effective June 26, 2008, 33 TexReg 4898.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scD/s337.32"><num value="337.32">§337.32</num><heading>Denial and Removal of Sites from Ranking</heading><content>(a) The executive director may deny or remove from ranking a site if:(1) the owner of the dry cleaning facility or dry cleaning drop station is held responsible for the costs of corrective action under Texas Health and Safety Code, §374.202;(2) the applicant denies access or unreasonably hinders or delays corrective action at the site;(3) the applicant has failed to pay fees, penalties, and interest that the applicant is required to pay pursuant to this chapter;(4) the applicant has failed to register any dry cleaning facility or dry cleaning drop station that the applicant was required to register; or(5) the applicant does not pay the deductible or provide satisfactory proof of expenditures to apply against the deductible in accordance with Subchapter E of this chapter (relating to Deductible) within the required time frames.(b) An applicant who has been denied or removed from ranking may address the cause for denial or removal from ranking, provide additional information, and reapply for ranking.</content><note type="source"><p>Source Note: The provisions of this §337.32 adopted to be effective June 1, 2005, 30 TexReg 3108; amended to be effective June 26, 2008, 33 TexReg 4898.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c337/scE"><num value="E">SUBCHAPTER E</num><heading>DEDUCTIBLE</heading><section identifier="/us/state/tx/tac/t30/p1/c337/scE/s337.40"><num value="337.40">§337.40</num><heading>General Requirements</heading><content>(a) Eligible costs incurred by an applicant in performance of technical and scientific investigations, assessments, or corrective action associated with the site and related to the release of a dry cleaning solvent may be credited against the deductible required under Texas Health and Safety Code, §374.203.(b) Eligible costs for credit against the deductible are only those costs submitted with the application for ranking package that are reasonable and appropriate costs for reasonable and appropriate actions as determined by the executive director.(c) If the deductible is not met by eligible costs, the applicant shall submit a non-refundable payment of the difference at the time the application for ranking is submitted.(d) In the case of multiple applications for the same dry cleaning facility, each applicant must individually meet the deductible requirements in this subchapter.</content><note type="source"><p>Source Note: The provisions of this §337.40 adopted to be effective June 1, 2005, 30 TexReg 3108.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scE/s337.41"><num value="337.41">§337.41</num><heading>Evidence of Eligible Costs</heading><content>(a) Evidence of eligible costs must be submitted with the application for ranking package and must contain:(1) legible copies of invoices, providing a description of:(A) any work performed;(B) who performed the work;(C) where the work was performed;(D) the dates that the work was performed;(E) the unit cost; and(F) the total amount paid; and(2) proof that the amounts shown on the invoices for which the credit toward the deductible is requested have been paid in full by the applicant. The submission must include either:(A) business receipts or invoices from the person that performed the work, indicating payments received;(B) canceled checks;(C) the certification of a certified public accountant that the expenses for which credit against the deductible is requested have been paid in full; or(D) a notarized affidavit signed by the person that performed the corrective action, affirming that the amounts which the applicant represents as being paid to the person that performed the corrective action were paid in full.(b) The executive director may require the applicant to provide additional information or return the application if the information is not sufficient to review the application. If the executive director requests additional information, the applicant shall provide such information within 30 days of receiving the request.(c) The following types of costs are those that will not be considered eligible costs applicable to the deductible under this subchapter:(1) replacement, repair, and maintenance of affected equipment;(2) upgrading existing equipment;(3) removal, transport, and disposal of equipment;(4) loss of income or profits, including, without limitation, the loss of business income arising out of the review, processing, or payment of an application for ranking under this subchapter;(5) decreased property values;(6) bodily injury or property damage;(7) attorney's fees;(8) any administrative costs associated with the preparation, filing, and processing of an application for ranking under this subchapter;(9) making improvements to the facility beyond those that are required for corrective action;(10) compiling and storing records relating to costs of corrective action;(11) corrective action taken in response to the release of a substance that is not a dry cleaning solvent;(12) any activities, including those required by this chapter, that are not conducted in compliance with applicable state and federal environmental laws or laws relating to the transport and disposal of waste;(13) interest on monies; and(14) abatement or corrective action taken in response to a release of:(A) a regulated substance that is not dry cleaning solvent; or(B) a release of a dry cleaning solvent that has commingled with a regulated substance that is not a dry cleaning solvent unless the release of the dry cleaning solvent can be separately remediated.</content><note type="source"><p>Source Note: The provisions of this §337.41 adopted to be effective June 1, 2005, 30 TexReg 3108.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c337/scF"><num value="F">SUBCHAPTER F</num><heading>CORRECTIVE ACTION</heading><section identifier="/us/state/tx/tac/t30/p1/c337/scF/s337.50"><num value="337.50">§337.50</num><heading>Corrective Action</heading><content>(a) Corrective action will be conducted under Chapter 350 of this title (relating to Texas Risk Reduction Program) or other guidance established by the executive director.(b) Corrective action at a site may be postponed or suspended indefinitely in order to make money available for corrective action at a site with a higher priority.(c) Postponement or suspension of corrective action under subsection (b) of this section does not mean that the cleanup standards under Chapter 350 of this title have been met.(d) Corrective action will allow for the use of new technologies as they become available.</content><note type="source"><p>Source Note: The provisions of this §337.50 adopted to be effective June 1, 2005, 30 TexReg 3108.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scF/s337.51"><num value="337.51">§337.51</num><heading>Eligibility for Corrective Action</heading><content>An owner or other person is eligible to have corrective action costs paid by the Dry Cleaning Facility Release Fund if:(1) the owner or other person is eligible to apply for a site to be ranked under §337.31(a)(2) of this title (relating to Ranking of Sites);(2) an application for ranking package under §337.31(a)(3) of this title has been properly submitted to, and accepted by, the executive director as administratively and technically complete;(3) the owner or other person is not currently in violation of this chapter; and(4) the owner or other person is not otherwise ineligible for corrective action under this chapter or Texas Health and Safety Code, Chapter 374.</content><note type="source"><p>Source Note: The provisions of this §337.51 adopted to be effective June 1, 2005, 30 TexReg 3108; amended to be effective June 26, 2008, 33 TexReg 4898.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scF/s337.52"><num value="337.52">§337.52</num><heading>Site Restrictions Upon Commencement of Corrective Action</heading><content>(a) Once corrective action under this chapter has begun at a site, perchloroethylene may not be used at that site.(b) Following the commencement of corrective action under this chapter, a written notice will be filed in the real property records of the county or counties in which the site is located to notify future property owners that perchloroethylene may not be used at that site.</content><note type="source"><p>Source Note: The provisions of this §337.52 adopted to be effective June 26, 2008, 33 TexReg 4898.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scF/s337.53"><num value="337.53">§337.53</num><heading>Withdrawal of Site from the Dry Cleaner Remediation Program</heading><content>(a) Once corrective action costs have been incurred at a site by the Dry Cleaner Remediation Program (the commission program that administers the Dry Cleaning Facility Release Fund), an applicant may not withdraw the site from the Dry Cleaner Remediation Program prior to completion of corrective action at the site.(b) Notwithstanding subsection (a) of this section, in the event that corrective action has been suspended, postponed, or terminated at a site pursuant to §337.30 of this title (relating to Prioritization of Sites) or §337.50 of this title (relating to Corrective Action), an applicant may request to withdraw the site from the Dry Cleaner Remediation Program. An applicant may withdraw a site pursuant to this subsection only upon the express approval of the executive director.</content><note type="source"><p>Source Note: The provisions of this §337.53 adopted to be effective June 26, 2008, 33 TexReg 4898.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c337/scG"><num value="G">SUBCHAPTER G</num><heading>NON-PERCHLOROETHYLENE USERS, FACILITIES, AND DROP STATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c337/scG/s337.61"><num value="337.61">§337.61</num><heading>Nonparticipating Non-Perchloroethylene User Registration Certificate</heading><content>To obtain a nonparticipating non-perchloroethylene user registration certificate, an owner of a dry cleaning facility or dry cleaning drop station must meet the requirements of Texas Health and Safety Code, §374.104 and swear in an affidavit approved by the executive director that:(1) the owner has never used or allowed the use of the dry cleaning solvent perchloroethylene at any dry cleaning facility or drop station in the state;(2) the dry cleaning solvent perchloroethylene has never been used at the location to which the nonparticipating non-perchloroethylene user registration certificate would apply;(3) the owner will not now or ever use or allow the use of perchloroethylene at the location to which the nonparticipating non-perchloroethylene user registration certificate would apply; and(4) the owner was the owner of the dry cleaning facility or dry cleaning drop station on January 1, 2004, and was eligible to file the option not to participate on or before January 1, 2004, and inadvertently failed to file before that date.</content><note type="source"><p>Source Note: The provisions of this §337.61 adopted to be effective June 1, 2005, 30 TexReg 3108; amended to be effective February 1, 2006, 31 TexReg 548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scG/s337.62"><num value="337.62">§337.62</num><heading>Nonparticipating Non-Perchloroethylene Facilities and Drop Stations</heading><content>(a) In accordance with Texas Health and Safety Code, §374.104, after a dry cleaning facility or drop station is designated as nonparticipating:(1) the dry cleaning facility or drop station is not eligible for any expenditures of money from the Dry Cleaning Facility Release Fund or other benefits of participation for that facility or drop station;(2) that dry cleaning facility or drop station may not later become a participating facility or drop station, regardless of whether the owner of the facility, the owner of the drop station, or the owner of the real property is applying for participation in Dry Cleaning Facility Release Fund benefits; and(3) perchloroethylene must never be used at that facility.(b) In any sales transaction of the nonparticipating non-perchloroethylene facility, drop station, or of the real property on which the facility or drop station is located, the owner of the facility, the owner of the drop station, or the owner of the real property, as applicable, shall disclose the following to potential buyers prior to any sale:(1) the nonparticipating status of the dry cleaning facility or drop station;(2) the fact that the dry cleaning facility or drop station may not later become a participating facility or drop station; and(3) the prohibition on the use of perchloroethylene at the dry cleaning facility or drop station.</content><note type="source"><p>Source Note: The provisions of this §337.62 adopted to be effective June 1, 2005, 30 TexReg 3108; amended to be effective February 1, 2006, 31 TexReg 548.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scG/s337.63"><num value="337.63">§337.63</num><heading>Owner Affiliation</heading><content>For the purposes of this subchapter, the term "owner" includes any entity or person affiliated with the owner through:(1) any relationship within the third degree of consanguinity or second degree of affinity as described in Texas Government Code, Chapter 573, Subchapter B;(2) any contractual, corporate, or financial relationship (other than a contractual, corporate, or financial relationship that is created solely by the instruments by which title to the facility is conveyed or financed, by a contract for the sale of goods or services, or by a contract for employment); or(3) the result of a reorganization of a business entity that used or uses perchloroethylene.</content><note type="source"><p>Source Note: The provisions of this §337.63 adopted to be effective June 1, 2005, 30 TexReg 3108.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scG/s337.64"><num value="337.64">§337.64</num><heading>Retaining Nonparticipating Status for a Drop Station Moved to a New Location</heading><content>(a) To retain the nonparticipating status of a drop station when that drop station is moved to a new location, the owner of the drop station must:(1) Hold a current nonparticipating non-perchloroethylene user registration certificate for the drop station pursuant to §337.61 of this title (relating to Nonparticipating Non-Perchloroethylene User Registration Certificate);(2) Submit updated registration information for the drop station pursuant to §337.10 of this title (relating to Registration for Dry Cleaning Facilities and Drop Stations);(3) Continue to meet all requirements of Texas Health and Safety Code, §374.104 and of this subchapter; and(4) Swear in an affidavit approved by the executive director that:(A) the dry cleaning solvent perchloroethylene has never been used at the new location to which the nonparticipating non-perchloroethylene user registration certificate would now apply; and(B) the owner will not now or ever use or allow the use of perchloroethylene at the new location to which the nonparticipating non-perchloroethylene user registration certificate would now apply.(b) All provisions of this subchapter apply to any new drop station location that retains its nonparticipating status pursuant to this section.(c) A nonparticipating non-perchloroethylene user registration certificate issued pursuant to §337.61 of this title may only apply to one drop station location at a time.</content><note type="source"><p>Source Note: The provisions of this §337.64 adopted to be effective June 26, 2008, 33 TexReg 4898.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c337/scH"><num value="H">SUBCHAPTER H</num><heading>RECORDKEEPING</heading><section identifier="/us/state/tx/tac/t30/p1/c337/scH/s337.70"><num value="337.70">§337.70</num><heading>General Provisions</heading><content>(a) Maintenance of records. All records required to be maintained by this chapter must be available for examination and copying by the executive director at all reasonable times. Upon request, all records required by this chapter must be assembled at a single location within the State of Texas.(b) Records retention. A person that is required to keep records under this chapter shall keep those records for a minimum of five years from the date on which the record is made.(c) Penalties for records violations. A person that violates this subchapter shall be subject to any action authorized by law to secure compliance, including the assessment of administrative penalties or civil penalties as prescribed by law, and the suspension or revocation of registration.</content><note type="source"><p>Source Note: The provisions of this §337.70 adopted to be effective June 1, 2005, 30 TexReg 3108.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scH/s337.71"><num value="337.71">§337.71</num><heading>Distributors</heading><content>Distributors shall maintain books, financial records, documents, and other evidence for sales of dry cleaning solvents and the fees collected and paid to the agency as required by this chapter. The records must include copies of all invoices for dry cleaning solvent sales and purchases showing the facility registration numbers, name, type, and quantity of the dry cleaning solvent purchased and sold, the name and address of the seller and purchaser, and the date of the sale or purchase.</content><note type="source"><p>Source Note: The provisions of this §337.71 adopted to be effective June 1, 2005, 30 TexReg 3108.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c337/scH/s337.72"><num value="337.72">§337.72</num><heading>Dry Cleaning Facilities</heading><content>The owner of a dry cleaning facility shall retain the following records:(1) invoices of dry cleaning solvent purchases showing the name, type, and quantity of the dry cleaning solvent purchased, the name and address of the seller, and the date of the purchase;(2) waste disposal records as required by §337.20(b) of this title (relating to Performance Standards); and(3) secondary containment log required under §337.20(d)(5)(B) of this title.</content><note type="source"><p>Source Note: The provisions of this §337.72 adopted to be effective June 1, 2005, 30 TexReg 3108.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c337/scI"><num value="I">SUBCHAPTER I</num><heading>AUDITS AND INVESTIGATIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c337/scI/s337.80"><num value="337.80">§337.80</num><heading>Audits and Investigations</heading><content>(a) To achieve the purposes, proper administration, and enforcement of this chapter, the executive director may conduct audits or investigations of payments and fees authorized by Texas Health and Safety Code, Chapter 374, and concerning the veracity of information submitted to the agency in accordance with the Government Auditing Standards (2003 Revision). Such audits may include investigations of records from dry cleaning facilities, dry cleaning drop stations, distributors of dry cleaning solvents, and applicants for site ranking. (b) Each person subject to or involved with an audit or investigation under subsection (a) of this section shall cooperate fully with the audit or investigation by the executive director.</content><note type="source"><p>Source Note: The provisions of this §337.80 adopted to be effective June 1, 2005, 30 TexReg 3108.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c338"><num value="338">CHAPTER 338</num><heading>ABOVEGROUND STORAGE VESSEL SAFETY PROGRAM</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c338/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL APPLICABILITY, STANDARDS, AND RECORDKEEPING</heading><section identifier="/us/state/tx/tac/t30/p1/c338/scA/s338.1"><num value="338.1">§338.1</num><heading>Purpose and Applicability</heading><content>(a) Purpose. The goal of the Aboveground Storage Vessel Safety (ASVS) Program is to promote the safety of affected aboveground storage vessels, as defined in §338.2 of this title (relating to Definitions) through the requirements of this chapter concerning the design, construction, operation, and maintenance of aboveground storage vessels, with the objective of protecting groundwater and surface water resources in the event of accidents and natural disasters.(b) Applicability. Except as specified in §338.3 of this title (relating to Exemptions) the requirements of this chapter apply to all existing and future installed aboveground storage vessels, as defined in §338.2 of this title (relating to Definitions) which includes aboveground storage vessels that are made of non-earthen materials, have a storage capacity of 21,000 gallons (based on overfill level height) or more, store a regulated substance, and are located at or part of a petrochemical plant, a petroleum refinery, or a bulk storage terminal (relating to Definitions).(c) Relationship to other regulations. Compliance with the provisions of this chapter by an owner or operator of an aboveground storage vessel shall not relieve the owner or operator from the responsibility of compliance with any other laws and regulations directly and/or indirectly affecting these aboveground storage vessels, including, but not necessarily limited to, all applicable regulations legally promulgated by the commission and any other federal, state, and local governmental agencies or entities having appropriate jurisdiction.(d) Responsibilities of owners and operators. The owners and operators of an aboveground storage vessel subject to the provisions of this chapter are responsible for ensuring compliance with all applicable provisions of this chapter. Owners and operators are responsible for any violations or noncompliant activities resulting from the actions or inactions by any person who is employed or otherwise engaged by the owner or operator.</content><note type="source"><p>Source Note: The provisions of this §338.1 adopted to be effective August 24, 2023, 48 TexReg 4487.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c338/scA/s338.2"><num value="338.2">§338.2</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. The words and terms used in the specific standards found in §338.5 of this title (relating to Standards) shall have the meaning of that standard, if defined. However, the words and terms as defined in this section shall supersede a definition if provided in a specific standard found in §338.5 of this title.(1) Aboveground storage vessel -- A vessel made of non-earthen materials (e.g., concrete, steel, or plastic) located on or above the surface of the ground and that:(A) has a capacity (based on overfill height) of 21,000 gallons or more;(B) stores a regulated substance as defined in paragraph (8) of this subsection;(C) is located at or is part of a petrochemical plant, a petroleum refinery, or a bulk storage terminal as defined by this subsection;(D) is not a vessel exempted under §338.3 of this title (relating to Exemptions).(2) Bulk storage terminal -- means an end-of-line pipeline storage terminals (excluding breakout tanks, which are used to relieve surges in a pipeline system and/or receive/store liquids transported by a pipeline for reinjection and continued transportation by pipeline), refinery storage terminals, for-hire storage terminals, rail storage terminals, and barge storage terminals.(3) Facility -- A site, tract, or other defined area where one or more aboveground storage vessels are located.(4) Flow-through process vessel -- A vessel through which regulated substances as defined by Texas Water Code §26.343 flows as an integral part of a production process such as petroleum refining or petrochemical production. These vessels collect material discharged from a feedstock storage vessel, or equipment within the process before the material is transferred to other equipment or storage vessel(s) within the process or to product or by-product storage vessel(s). This term excludes any vessel:(A) Used for the static storage of regulated substances prior to their introduction into the production process; or(B) Used for the static storage of regulated substances that are products or by-products of the production process.(5) National consensus standard -- Any performance standard for storage tanks, or a modification thereof, that:(A) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures where it can be determined by the executive director that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption; and(B) was formulated in a manner that afforded an opportunity for diverse views to be considered.(6) Petrochemical plant --(A) A facility that in a single continuous operation or using a batch processing method manufactures a petrochemical.(B) A petrochemical plant may be either a single facility existing by itself or a facility within a chemical plant complex consisting of a number of separate chemical plants each of which produces a single basic or intermediate chemical product. In a chemical plant complex, each facility is considered individually to determine whether it qualifies as a petrochemical plant.(C) The term does not include:(i) a facility or chemical plant that manufactures "allied chemical products"; or(ii) a facility or chemical plant, other than one that produces a basic or an intermediate chemical, that generates any chemical as a waste product or a by-product.(7) Petroleum refinery -- A facility that manufactures finished petroleum products from crude oil, unfinished oils, natural gas liquids, other hydrocarbons, and oxygenates. Products of these refineries include gasoline, diesel, kerosene, distillate fuel oils, liquefied petroleum gas (LPG), residual fuel oils, lubricants, and other products refined through alkylation, coking, cracking, dewaxing, desulphurization, distillation, hydrotreating, isomerization, polymerization, or other chemical processes. These facilities also produce petrochemical feedstock for use by chemical plants. The term does not include facilities at an oil or gas lease site that removes water or other impurities and merely makes the product more marketable.(8) Regulated substance -- as defined by Texas Water Code §26.343 to include:(A) a substance defined in Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), but does not include a substance regulated as a hazardous waste under the federal Solid Waste Disposal Act (42 U.S.C. Section 6921 et seq.);(B) petroleum, including crude oil or a fraction of it, that is liquid at standard conditions of temperature and pressure;(C) any other substance designated by the executive director, and(D) a mixture containing one percent or greater by weight of a regulated substance would be considered to meet this definition.</content><note type="source"><p>Source Note: The provisions of this §338.2 adopted to be effective August 24, 2023, 48 TexReg 4487.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c338/scA/s338.3"><num value="338.3">§338.3</num><heading>Exemptions</heading><content>(a) Complete exemption. The following vessels, as defined in §338.2 of this title (relating to Definitions) including any pipe that is connected to the vessel, are not considered to be aboveground storage vessels and are exempt from the regulation of this chapter:(1) A vessel used in or associated with the production or gathering of crude oil or natural gas;(2) a vessel that is part of a stormwater or wastewater collection system;(3) a flow-through process vessel, including a pressure vessel or process vessel and oil and water separators;(4) an aboveground storage vessel operating above 0.5 pounds per square inch gauge (psig), or designed or intended to operate above 0.5 psig, as measured with a pressure gauge in the vapor space of the vessel or calculated as the total mixture vapor pressure at the storage temperature converted to gauge pressure;(5) heated vessels that are heated using external heat, including but not limited to steam, an electric heating element, or a heat medium such as hot oil. Heated vessels do not include vessels that contain process fluid that are received above ambient temperatures;(6) an intermediate bulk container or similar vessel that may be moved within a facility as defined in §338.2 of this title;(7) a vessel regulated under the federal Surface Mining Control and Reclamation Act (30 U.S.C. Section 1201 et seq.);(8) a vessel used for the storage of products regulated under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.);(9) a vessel, including piping and collection and treatment systems, that is used in the management of leachate, methane gas, or methane gas condensate, unless the vessel is used for storage of a regulated substance, as defined in §338.2 of this title;(10) a vessel or pressure vessel that is used to store liquified petroleum gas;(11) a vessel regulated under the U.S. Department of Transportation's Pipeline and Hazardous Materials Safety Administration (49 U.S.C. 60101 et seq.); or(12) a vessel regulated under 40 CFR Parts 262, 264 and 265, as incorporated into 30 TAC §§335.55, 335.112(a)(9) and 335.152(a)(8).(b) The owner or operator of an affected aboveground storage vessel may submit a written request to the executive director for a specific aboveground storage vessel to be exempted from the requirements of this chapter. The request must provide a demonstration that the aboveground storage vessel presents a sufficiently low risk of floods, storm surges, hurricanes, accidents, fires, explosions, or other hazards so that it does not warrant regulation under this chapter. The executive director must provide written approval before the aboveground storage vessel is considered to be exempt from the requirements of this chapter.(c) Upon request by the executive director, the owner or operator of a vessel claiming to be exempted under this section must provide appropriate documentation or other information in a timely manner to support that claim.</content><note type="source"><p>Source Note: The provisions of this §338.3 adopted to be effective August 24, 2023, 48 TexReg 4487.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c338/scA/s338.5"><num value="338.5">§338.5</num><heading>Standards</heading><content>(a) The standards identified in subsections (b) and (c) of this section are applicable when both of the following criteria are met:(1) the vessel meets the definition of an aboveground storage vessel as defined in §338.2 of this title (relating to Definitions); and(2) the aboveground storage vessel satisfies the applicability criteria of the listed standard.(b) Aboveground Storage Vessels in service before or on September 1, 2027. For an existing aboveground storage vessel, as defined in §338.2 of this title that is in service before or on September 1, 2027, all of the following performance standards for safety shall apply:(1) 40 Code of Federal Regulations (CFR) Part 68, Chemical Accident Prevention Provisions are incorporated by reference as stated in the paragraphs below:(A) 40 CFR §68.3, Definitions, is incorporated by reference as amended through December 19, 2019 (84 FR 69913);(B) 40 CFR §68.10, Applicability, is incorporated by reference as amended through December 19, 2019 (84 FR 69913). The compliance dates specified in this chapter apply instead of the dates listed in 40 CFR §68.10;(C) 40 CFR §68.12, General Requirements, is incorporated by reference as amended through December 19, 2019 (84 FR 69913);(D) 40 CFR §68.15, Management, is incorporated by reference as amended through June 20, 1996 (61 FR 31718);(E) 40 CFR §68.48, Safety Information, is incorporated by reference as amended through June 20, 1996 (61 FR 31718);(F) 40 CFR §68.50, Hazard Review, is incorporated by reference as amended through December 19, 2019 (84 FR 69914);(G) 40 CFR §68.56, Maintenance, is incorporated by reference as amended through January 31, 1994 (59 FR 4493);(H) 40 CFR §68.65, Process Safety Information, is incorporated by reference as amended through December 19, 2019 (84 FR 69914);(I) 40 CFR §68.67, Process Hazard Analysis, is incorporated by reference as amended through December 19, 2019 (84 FR 69914);(J) 40 CFR §68.73, Mechanical Integrity, is incorporated by reference as amended through January 31, 1994 (59 FR 4493);(K) 40 CFR §68.75, Management of Change, is incorporated by reference as amended through January 31, 1994 (59 FR 4493);(L) 40 CFR §68.77, Pre-Startup Review, is incorporated by reference as amended through January 31, 1994 (59 FR 4493);(M) All sections of 40 CFR Part 68, Subpart E, Emergency Response, (40 CFR §§68.90, 68.93, 68.95, 68.96) are incorporated by reference as amended through December 19, 2019 (84 FR 69915);(N) All sections of 40 CFR Part 68, Subpart G, Risk Management Plan, (40 CFR §§68.150, 68.151. 68.152, 68.155, 68.160, 68165, 68.168, 68.170, 68.175, 68.180, 68.185, 68.190, 68.195) are incorporated by reference as amended through April 9, 2004 (69 FR 18832); and(O) All sections of 40 CFR Part 68, Subpart H, Other Requirements, 40 CFR (§§68.200, 68.210, 68.215, 68.220) are incorporated by reference as amended through December 19, 2019 (84 FR 69916).(2) 40 CFR Part 112, Oil Pollution Prevention standards are incorporated by reference as stated in the paragraphs below:(A) 40 CFR §112.1, General Applicability, is incorporated by reference as amended through April 18, 2011 (76 FR 21550);(B) 40 CFR §112.2, Definitions, is incorporated by reference as amended through April 21, 2020 (85 FR 223399);(C) 40 CFR §112.3, Requirement to Prepare and Implement a Spill Prevention, Control, and Countermeasure Plan, is incorporated by reference as amended through November 22, 2011 (76 FR 72124);(D) 40 CFR §112.6, Qualified Facilities Plan Requirements, is incorporated by reference as amended through November 13, 2009 (74 FR 58810);(E) 40 CFR §112.7, General Requirements for Spill Prevention, Control, and Countermeasure Plans, is incorporated by reference as amended through November 13, 2009 (74 FR 58810);(F) 40 CFR §112.8, Spill Prevention, Control, and Countermeasure Plan requirements for onshore facilities (excluding production facilities) is incorporated by reference as amended through December 5, 2008 (73 FR 74304);(G) 40 CFR §112.12, Spill Prevention, Control, and Countermeasure Plan Requirements, is incorporated by reference as amended through December 5, 2008 (73 FR 74305);(H) 40 CFR §112.20, Facility Response Plans, is incorporated by reference as amended through July 17, 2002, (67 FR 47151); and(I) 40 CFR §112.21, Facility Response Training and Drills/Exercises, is incorporated by reference as amended through June 30, 2000, (65 FR 40798). Note the term "Regional Administrator" should be replaced with "executive director".(3) The following sections from American Petroleum Institute (API) Standard 653: Tank Inspection, Repairs, Alteration, and Reconstruction, Fifth Edition, November 2014 (Addendum 1, April 2018 and Addendum 2, May 2020) are incorporated by reference, as stated in the paragraphs below for aboveground storage vessels as defined in §338.2 of this title (relating to Definitions):(A) Section 4.3: Tank Shell Evaluation and any applicable Annex found in API 653;(B) Section 4.4: Tank Bottom Evaluation and any applicable Annex found in API 653;(C) Section 4.5: Tank Foundation Evaluation and any applicable Annex found in API 653;(D) Section 6.2: Inspection Frequency Considerations and any applicable Annex found in API 653;(E) Section 6.3: Inspections from the Outside of the Tank and any applicable Annex found in API 653;(F) Section 6.4: Internal Inspection and any applicable Annex found in API 653;(G) Section 8: Design Considerations for Reconstructed Tanks and any applicable Annex found in API 653; and(H) Section 9: Tank Repair and Alteration and any applicable Annex found in API 653.(4) The following Sections from API Standard 2350: Overfill Prevention for Storage Tanks in Petroleum Facilities, Fifth Edition, September 2020 (Errata 1, April 2021), are incorporated by reference, as stated in the paragraphs below for aboveground storage vessels as defined in §338.2 of this title (relating to Definitions) with an internal design pressure not more than 0.5 psig:(A) Section 4: Overfill Prevention System (OPS) and any applicable Annex found in API 2350, and(B) Section 5: Overfill Prevention Systems and any applicable Annex found in API 2350.(5) National Fire Protection Association (NFPA) 30, Chapter 22 (Edition: 2021) Section 22.8: Fire Protection for Aboveground Storage Tanks and any applicable Annex are incorporated by reference, or API Recommended Practice 2001, 10th Edition, July 2019, Sections 5, 6, 7, 8, 9, 10, 11 and any applicable Annex are subject to the protocol of the applicable standard.(6) For all aboveground storage vessels that have not installed a fire suppression system under paragraph (5) of this subsection, API Recommended Practice 2001, 10th Edition, July 2019, Sections 5, 6, 7, 8, 9, 10, 11 and any applicable Annex are incorporated by reference and shall apply.(c) Aboveground storage vessels placed into service after September 1, 2027. For a new aboveground storage vessel placed into service after September 1, 2027, all of the following performance standards for safety shall apply:(1) All of the standards listed in subsection (b) of this section,(2) API 650: Welded Tanks for Oil Storage, Thirteen Edition, March 2020 (Errata 1, January 2021), and any applicable Annex are incorporated by reference, and(3) NFPA 30, Chapter 22 (Edition: 2021) Section 22.4: Location of Aboveground Storage Tanks and any applicable Annex are incorporated by reference, except for reconstruction standards at an original storage vessel location.(d) The owner or operator shall make any modifications or retrofits necessary for compliance with the standards in subsection (b) of this section during the next out-of-service maintenance periods, unless the owner or operator obtains written approval from the executive director that the necessary modifications or retrofits are not technically feasible.</content><note type="source"><p>Source Note: The provisions of this §338.5 adopted to be effective August 24, 2023, 48 TexReg 4487.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c338/scA/s338.7"><num value="338.7">§338.7</num><heading>Inspections</heading><content>(a) For the purposes of developing or assisting in the development of a regulation, conducting a study, or enforcing this chapter, an owner or operator of an aboveground storage vessel, on the request of the executive director must:(1) furnish information related to the aboveground storage vessel, including aboveground storage vessel equipment and contents; and(2) allow the executive director at all reasonable times to have access to and to obtain all records relating to the aboveground storage vessel.(b) For the purposes of developing or assisting in the development of a regulation, conducting a study, or enforcing this chapter, the executive director may:(1) enter at reasonable times a facility in which an aboveground storage vessel is located;(2) inspect and obtain samples, which will be collected by the owner or operator at the request of the executive director, of a regulated substance contained in the aboveground storage vessel; and(3) conduct monitoring or request that the owner/operator conduct monitoring of the aboveground storage vessel, surrounding soils, air, surface water, or groundwater.(c) The executive director may direct an owner or operator of an aboveground storage vessel to conduct monitoring and testing if the executive director finds that there is reasonable cause to believe that a release has occurred in the area in which the aboveground storage vessel is located.</content><note type="source"><p>Source Note: The provisions of this §338.7 adopted to be effective August 24, 2023, 48 TexReg 4487.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c338/scA/s338.9"><num value="338.9">§338.9</num><heading>Recordkeeping</heading><content>(a) General recordkeeping requirements.(1) Owners and operators of aboveground storage vessels must develop and maintain all records required by the provisions of this chapter.(2) Except as provided in paragraph (3) of this subsection, owners or operators must maintain legible copies of all required records pertaining to an aboveground storage vessel in a secure location on the facility premises. Electronic records may be kept off-premises. The records must be immediately:(A) accessible for reference and use by the owner or operator; and(B) available for inspection upon request by executive director personnel or an executive director designated agent.(3) If an owner or operator cannot reasonably maintain copies of the required records on the facility's premises, then the owner or operator may maintain the records at a readily accessible alternate site, provided that the records are immediately:(A) accessible for reference and use by the owner or operator; and(B) accessible and available for inspection upon request by executive director personnel or an executive director-designated agent.(b) Required records and documents. Owners and operators of aboveground storage vessels must meet all recordkeeping requirements in this chapter, including the following records and documentation (as applicable).(1) Owners and operators must maintain legible printed copies or readily accessible electronic copies of the following general records for the operational life of the aboveground storage vessel:(A) original and amended registration documents, in accordance with §338.20 of this title (relating to Registration);(B) original and amended certifications, in accordance with §338.21 of this title (relating to Certification).(2) Owners and operators must maintain legible printed copies or readily accessible electronic copies of records and documents demonstrating compliance with all applicable standards in §338.5 of this title (relating to Standards) in accordance with the following provisions:(A) records supporting the implementation of the applicable sections of 40 CFR Part 68 listed in §338.5(b)(1);(B) the Spill Prevention, Control, and Countermeasure (SPCC) Plan, and records supporting implementation of the SPCC Plan, as required by the applicable sections of 40 CFR Part 112 listed in §338.5(b)(2)(A) - (G);(C) the Facility Response Plan, and records supporting implementation of the plan, including a facility response training program and a drill/exercise program, as required by the applicable sections of 40 CFR Part 112 listed in §338.5(b)(2)(H) and (I);(D) records supporting the implementation of the applicable sections of API Standard 653 listed in §338.5(b)(3);(E) records supporting the implementation of the applicable sections of API Standard 2350 listed in §338.5(b)(4);(F) records supporting the implementation of the applicable sections of NFPA 30, Chapter 22 listed in §338.5(b)(5) and §338.5(c)(3);(G) records supporting the implementation of the applicable sections of API Recommended Practice 2001 listed in §338.5(b)(6);(H) records supporting the implementation of the applicable sections of API Standard 650 listed in §338.5(c)(2).</content><note type="source"><p>Source Note: The provisions of this §338.9 adopted to be effective August 24, 2023, 48 TexReg 4487.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c338/scB"><num value="B">SUBCHAPTER B</num><heading>REGISTRATION AND CERTIFICATION REQUIREMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c338/scB/s338.20"><num value="338.20">§338.20</num><heading>Registration</heading><content>(a) Existing aboveground storage vessels. Any person who owns or operates an existing aboveground storage vessel, as defined in §338.2 of this title (relating to Definitions) that is in service on or before September 1, 2027, must be registered with the executive director. Facilities must register aboveground storage vessels using the method authorized by the executive director.(b) New or replacement aboveground storage vessels. Any person who owns or operates a new or replacement aboveground storage vessel placed into service on or after September 1, 2027, must register the vessel using the method authorized by the executive director no later than 30 days after start of operation.(c) The owner and operator of an aboveground storage vessel are responsible for compliance with the registration requirements of this section. An owner or operator may designate an authorized representative to complete and submit the required registration information. However, the owner and operator remain responsible for compliance with the provisions of this section.(d) All aboveground storage vessels subject to the registration requirements of this section are also subject to the fee provisions in §338.22 of this title (relating to Fees for Aboveground Storage Vessels). Failure of owner or operator to register an aboveground storage vessel shall not exempt the owner or operator from fee assessment and payment.(e) Changes or additional information. The owner or operator of an aboveground storage vessel must provide notice to the executive director of any changes to the registration for the facility within 30 days of the occurrence of the change. The owner or operator must provide the notice using the method authorized by the executive director. Changes that require notification include, but are not limited to:(1) the decommissioning of an aboveground storage vessel;(2) adding a potential substance stored in an aboveground storage vessel;(3) change in ownership of any aboveground storage vessel;(4) compliance status of any aboveground storage vessel;(5) the location of records for aboveground storage vessels.(f) Registration information.(1) An owner or operator must provide all the registration information requested by the executive director for each regulated aboveground storage vessel owned.(2) The owner or operator must fill out the registration information completely and accurately.(3) The owner or operator must provide the registration information for all aboveground storage vessels located at a particular facility on the same registration form.(4) Owners or operators who own or operate aboveground storage vessels located at multiple facilities must complete and file a separate registration form for each facility.(g) Inadequate information. If the executive director determines that the registration information submitted is inaccurate, unclear, illegible, incomplete, or otherwise inadequate, the executive director may require the owner or operator to submit additional information. An owner or operator must submit any additional information within 30 days of receipt of a request.(h) To cancel a registration, the owner or operator must provide notice and certify that the vessel is decommissioned and is no longer subject to the definition of aboveground storage vessel as defined in §338.2 of this title. The owner or operator must provide the notice using the method authorized by the executive director. The executive director shall not approve any request to remove an aboveground storage vessel from the program until all outstanding fees for the facility are paid in full.</content><note type="source"><p>Source Note: The provisions of this §338.20 adopted to be effective August 24, 2023, 48 TexReg 4487.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c338/scB/s338.21"><num value="338.21">§338.21</num><heading>Certification</heading><content>(a) For aboveground storage vessels constructed and brought into service on or before September 1, 2027, an owner or operator must report to the executive director its compliance status with the standards under §338.5 of this title (relating to Standards) no later than September 1, 2027.(b) For aboveground storage vessels constructed and brought into service on or before September 1, 2027, an owner or operator shall certify compliance under §338.5 of this title upon completion of the next regularly scheduled out-of-service maintenance of the aboveground storage vessel, but no later than September 1, 2037.(c) For aboveground storage vessels constructed and brought into service after September 1, 2027, an owner or operator of an aboveground storage vessel shall certify compliance under §338.5 of this title no later than 30 days after the start of operation.(d) The owner or operator shall re-certify compliance with the standards under §338.5 of this title every 10 years.</content><note type="source"><p>Source Note: The provisions of this §338.21 adopted to be effective August 24, 2023, 48 TexReg 4487.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c338/scB/s338.22"><num value="338.22">§338.22</num><heading>Fees for Aboveground Storage Vessels</heading><content>(a) Purpose. This section establishes a fee in amounts sufficient to recover the reasonable costs to:(1) implement a registration program for affected facilities; (2) review of any certifications submitted under §338.21 of this title (relating to Certification);(3) inspect sites/facilities regulated under this chapter; and(4) enforce compliance with applicable standards of §338.5 of this title (relating to Standards).(b) Fee assessment.(1) The executive director will assess fees for each aboveground storage vessel subject to §338.20 of this title (relating to Registration) up to a maximum fee of $2,000.00.(2) The owner or operator must pay the registration fee upon initial registration and annually.(3) The executive director will bill the owner or operator for the aboveground storage vessels on their site(s) annually. The owner or operator shall pay all fees by check, money order, electronic funds transfer, or through the executive director's payment portal. The owner or operator shall make any payments payable to the Texas Commission on Environmental Quality. If the executive director does not receive assessment by the invoice due date, the executive director shall assess penalties and interest for the late payment of fees in accordance with Chapter 12 of this title (relating to Payment of Fees).(4) The executive director may adjust fees up to the maximum in this subsection, on an annual basis, and will notify fee payers through an appropriate notification process, such as but not limited to Texas Register publication with public comment. The executive director may adjust fees in this subsection in amounts sufficient to recover the reasonable costs to:(A) implement a registration program for affected facilities; (B) review initial and ten-year certifications;(C) amend certifications;(D) inspect certified facilities; and(E) enforce compliance with applicable standards of Texas Water Code §26.3442 and rules and orders adopted under those subsections.(5) Regardless of actual billing date, the executive director will base the billing for registration fees on aboveground storage vessels listed on the registration as of September 1 of each year.(6) Cancellation of a registration, whether by voluntary action on the part of the owner or as a result of involuntary proceedings initiated by the executive director, will not constitute grounds for refund, in whole or in part, of any fee paid under this section.(7) Transfer of facility ownership will not entitle the transferring entity to a refund, in whole or in part of any fee already paid under this section. The executive director may not process a transfer request until the owner or operator has paid in full all fees owed to the commission by the owner or operator or for the registered aboveground storage vessels. Any owner or operator to whom a registration is transferred shall be liable for payment of any associated outstanding fees and penalties owed to the commission.</content><note type="source"><p>Source Note: The provisions of this §338.22 adopted to be effective August 24, 2023, 48 TexReg 4487.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c342"><num value="342">CHAPTER 342</num><heading>REGULATION OF CERTAIN AGGREGATE PRODUCTION OPERATIONS</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c342/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c342/scA/s342.1"><num value="342.1">§342.1</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise.(1) Aggregate production operation--A site from which aggregates are being or have been removed or extracted from the earth, including the entire areas of extraction, stripped areas, haulage ramps, and the land on which the plant processing the raw materials is located, exclusive of any land owned or leased by the responsible party not being currently used in the production of aggregates. For the purposes of this chapter, the term aggregate production operation does not include:(A) a site at which aggregates that are being removed or extracted from the earth are used or processed at the same site or at a related site under the control of the same responsible party for the primary purpose of production of cement or lightweight aggregates, or in a lime kiln;(B) a site that is being used solely to provide aggregate products for use in a public works project involving the Texas Department of Transportation, any other state agency, or a local governmental entity;(C) an extraction area from which all raw material is extracted for use as fill or for other construction uses at the same or a contiguous site;(D) a site at which the aggregates that are being removed or extracted from the earth are used or processed for use in the construction, modification, or expansion of a solid waste facility at the site or another location;(E) a site at which aggregates are being removed or extracted where the primary purpose of removal or extraction is not for commercial sale; or(F) a site at which:(i) the materials being removed or extracted from the earth are specialty stone or terrazzo-type stone removed or extracted exclusively for decorative or artistic uses; and(ii) the portion of the specialty or terrazzo-type stone horizon that is exposed for current production for commercial sale does not exceed five acres. This portion is defined as the area exposed for current production, as viewed from an aerial perspective.(2) Aggregates--Any commonly recognized construction material originating from an aggregate production operation from which an operator extracts dimension stone, crushed and broken limestone, crushed and broken granite, crushed and broken stone not elsewhere classified, construction sand and gravel, industrial sand, dirt, soil, or caliche. For purposes of this chapter, the term aggregates does not include clay or shale mined for use in manufacturing structural clay products.(3) Commission--The Texas Commission on Environmental Quality.(4) Decorative or artistic uses--Uses for ornamentation or creating artwork. This does not include uses such as construction activities, structural concrete, road construction, building facades, or mass-produced items.(5) Extraction activities--The act of removing or extracting aggregates from the earth.(6) Operator--Any person engaged in and responsible for the physical operation and control of the extraction of aggregates.(7) Owner--Any person having title, wholly or partly, to the land on which an aggregate production operation exists or has existed.(8) Responsible party--The operator, lessor, or owner who is responsible for the overall function and operation of an aggregate production operation.(9) Site--One or more contiguous or adjacent properties under common control by the same responsible party.(10) Specialty stone--Stone that occurs in limited quantity, that is extracted for its unique and naturally occurring color, texture, opacity, or luster, and shall not include attributes commonly found in aggregates.(11) Terrazzo-type stone--Stone that is incorporated into mortar or other similar wet binding agent used to create mosaic designs, images, pictures, or patterns.</content><note type="source"><p>Source Note: The provisions of this §342.1 adopted to be effective July 5, 2012, 37 TexReg 4944; amended to be effective June 12, 2019, 44 TexReg 2840.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c342/scB"><num value="B">SUBCHAPTER B</num><heading>REGISTRATION AND FEES</heading><section identifier="/us/state/tx/tac/t30/p1/c342/scB/s342.25"><num value="342.25">§342.25</num><heading>Registration</heading><content>(a) The responsible party for an aggregate production operation, in operation on or before September 1, 2012, shall register each aggregate production operation with the commission within the 60-day period beginning September 1, 2012.(b) The responsible party for an aggregate production operation that begins extraction activities after September 1, 2012 shall register each aggregate production operation with the commission not later than the 10th business day before the beginning date of extraction activities.(c) An aggregate processing plant that has the same responsible party and is located at the same site from which aggregates are being or have been removed or extracted from the earth is not required to obtain a separate registration.(d) The responsible party for an aggregate production operation shall renew the registration annually as extraction activities continue.(e) The requirements of this chapter are not applicable to aggregate production operations where:(1) extraction activities have ceased; and(2) the responsible party has submitted a registration cancellation request to the commission or allowed the existing registration to expire.(f) Applications for registration or cancellation of a registration shall be made on forms prescribed by the executive director.</content><note type="source"><p>Source Note: The provisions of this §342.25 adopted to be effective July 5, 2012, 37 TexReg 4944; amended to be effective June 12, 2019, 44 TexReg 2840.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c342/scB/s342.26"><num value="342.26">§342.26</num><heading>Registration Fees</heading><content>(a) Any person who submits a registration for an aggregate production operation shall remit, at the time of registration, a fee to the commission.(b) The executive director shall determine the costs to administer this chapter and the requirements in Texas Water Code, Chapter 28A, and establish fees annually to recover the executive director's actual costs. The fees established by the executive director shall not exceed the amount specified in the Texas Water Code, Chapter 28A. The executive director may implement a tier-based registration fee structure.</content><note type="source"><p>Source Note: The provisions of this §342.26 adopted to be effective July 5, 2012, 37 TexReg 4944; amended to be effective August 6, 2020, 45 TexReg 5359.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c344"><num value="344">CHAPTER 344</num><heading>LANDSCAPE IRRIGATION</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c344/scA"><num value="A">SUBCHAPTER A</num><heading>DEFINITIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c344/scA/s344.1"><num value="344.1">§344.1</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.(1) Air gap--The unobstructed vertical distance through the free atmosphere between the lowest opening from any pipe or faucet conveying water to a tank, fixture, receptor, sink, or other assembly and the flood level rim of the receptacle. The vertical, physical separation must be at least twice the diameter of the water supply outlet, but never less than 1.0 inch.(2) As-built drawing--The final irrigation plan produced at the completion of an irrigation system installation and provided to the irrigation system's owner or the owner's representative. The as-built drawing(s) will reflect all changes made to the original irrigation plan and/or specifications during the construction process and show all aspects of the irrigation system including the dimensions, geometry, and location of all elements of the irrigation system. May be referred to as "record drawings" or "as-builts."(3) Backflow prevention--The prevention of the reversal of flow, due to back siphonage or backpressure, of nonpotable water from an irrigation system into the potable water supply.(4) Backflow prevention assembly--A mechanical assembly used to prevent backflow into a potable water system. The type of assembly used is based on the degree of hazard (health hazard or non-health hazard) and hydraulic conditions.(5) Completion of irrigation system installation--When the landscape irrigation system has been installed, all minimum standards met, all tests performed, and the irrigator is satisfied that the system is operating correctly.(6) Consulting--The act of providing advice, guidance, review or recommendations related to landscape irrigation systems.(7) Cross-connection--A physical connection between a public water system and either another supply of unknown or questionable quality, any source which may contain contaminating or polluting substances, or any source of water treated to a lesser degree in the treatment process.(8) Design--The act of determining the various elements of a landscape irrigation system that will include, but not limited to, elements such as collecting site specific information, defining the scope of the project, defining plant watering needs, selecting and laying out emission devices, locating system components, conducting hydraulic calculations, identifying any local regulatory requirements, or scheduling irrigation work at a site. Completion of the various components will result in an irrigation plan.(9) Design pressure--The pressure that is required for an emission device to operate properly and in conjunction with the head-to-head spacing requirement. Design pressure is the sum of the minimum operating pressure of an emission device to the total of all pressure losses accumulated from the emission device to the water source.(10) Double Check Valve Assembly--An assembly that is composed of two independently acting, check valves, including tightly closing resilient seated shutoff valves attached at each end of the assembly and fitted with properly located resilient seated test cocks. Also known as a Double Check Valve Backflow Prevention Assembly.(11) Emission device--Any device that is contained within an irrigation system and that is used to apply water. Common emission devices in an irrigation system include, but are not limited to, spray and rotary sprinkler heads, and drip irrigation emitters.(12) Employed--The state of being engaged or hired to provide irrigation services and of being in an employer-employee relationship as defined by Internal Revenue Code, 26 United States Code Service, §3212(d) based on the behavioral control, financial control, and the type of relationship involved in performing employment related tasks.(13) Exempt business owner--an owner of a business who employs a licensed irrigator to supervise the irrigation services performed by the business as referenced in Texas Occupations Code, Chapter 1903.(14) Graywater--wastewater from showers, bathtubs, handwashing lavatories, sinks that are used for disposal of household or domestic products, sinks that are not used for food preparation or disposal, and clothes-washing machines. Graywater does not include wastewater from the washing of material, including diapers, soiled with human excreta or wastewater that has come into contact with toilet waste.(15) Head-to-head spacing--The spacing of emission devices such that the distance between them is within the manufacturer's published radius range and the water spray reaches from device to device. A deviation of 10% or less is acceptable.(16) Health hazard--A cross-connection, potential contamination hazard, or other situation involving any substance that can cause death, illness, spread of disease, or has a high probability of causing such effects if introduced into the potable drinking water supply.(17) Hydraulics--The science of dynamic and static water; the mathematical computation of pressure losses and/or pressure requirements of an irrigation system.(18) Irrigation inspector--A water district operator, governmental entity, or licensed irrigation inspector who inspects irrigation systems and performs other enforcement duties for a municipality or water district and is required to be licensed under Chapter 30 of this title (relating to Occupational Licenses and Registrations) or a licensed plumbing inspector.(19) Irrigation plan--A scaled drawing of a new landscape irrigation system to be installed. The irrigation plan shall meet all the requirements in §§344.60 - 344.65 of this title (relating to Water Conservation; Minimum Standards for the Design of the Irrigation Plan; Minimum Design and Installation Requirements; Completion of Irrigation System Installation; Maintenance, Alteration, Repair, or Service of Irrigation Systems; and Reclaimed Water) and is provided as an as-built drawing to the owner or owner's representative upon completion of the irrigation system installation.(20) Irrigation services--All activities involving an irrigation system including, selling, designing, installing, maintaining, altering, repairing, servicing, permitting, consulting services, or connecting an irrigation system to a water supply.(21) Irrigation system--A system permanently installed on a site and that is composed of an assembly of component parts for the controlled distribution and conservation of water to irrigate, reduce dust, and control erosion in any type of landscape vegetation in any location. This term includes sprinklers and sprinkler systems used for irrigation. This term does not include a system that is used on or by an agricultural operation as defined by Texas Agricultural Code, §251.002.(22) Irrigation technician--A person who works under the supervision of a licensed irrigator to perform irrigation services including the connection of an irrigation system to a private or public, raw or potable water supply system or any other water supply, and who is required to be licensed under Chapter 30 of this title (relating to Occupational Licenses and Registrations).(23) Irrigation zone--A subdivision of an irrigation system with a matched precipitation rate based on plant type (turf, shrubs, or trees), microclimate (sun/shade ratio), topographic features, soil type (sand, loam, clay, or combination), and hydrological control.(24) Irrigator--A person who performs irrigation services and/or supervises the installation of an irrigation system, including the connection of such system to a private or public, raw or potable water supply system or any water supply, and who is required to be licensed under Chapter 30 of this title (relating to Occupational Licenses and Registrations).(25) Irrigator-in-Charge--The irrigator responsible for all irrigation work performed by an exempt business owner, including, but not limited to obtaining permits, developing design plans, supervising the work of other irrigators or irrigation technicians, and installing, selling, maintaining, altering, repairing, or servicing a landscape irrigation system.(26) Landscape irrigation--The science of applying the necessary amount of water to promote or sustain healthy growth of plant material or turf.(27) License--An occupational license that is issued by the commission under Chapter 30 of this title (relating to Occupational Licenses and Registrations) to an individual that authorizes the individual to engage in an activity that is covered by this chapter.(28) Mainline--A pipe within an irrigation system that delivers water from the water source to the individual zone valves.(29) Maintenance checklist--A document made available to the irrigation system's owner or owner's representative that contains information regarding the operation and maintenance of the irrigation system, including, but not limited to: checking and repairing the irrigation system, setting the automatic controller, checking the rain or moisture sensor, cleaning filters, pruning grass and plants away from irrigation emitters, using and operating the irrigation system, the precipitation rates of each irrigation zone within the system, any water conservation measures currently in effect from the water purveyor, the name of the water purveyor, a suggested seasonal or monthly watering schedule based on current evapotranspiration data for the geographic region, and the minimum water requirements for the plant material in each zone based on the soil type and plant material where the system is installed.(30) Major maintenance, alteration, repair, or service--Any activity that involves opening to the atmosphere the irrigation main line at any point prior to the discharge side of any irrigation zone control valve. This includes, but is not limited to, repairing or connecting into a main supply pipe, replacing a zone control valve, or repairing a zone control valve in a manner that opens the system to the atmosphere.(31) Master valve--A control valve located after the backflow prevention assembly that controls the flow of water to the irrigation system mainline.(32) Matched precipitation rate--The condition in which all sprinkler heads within an irrigation zone apply water at the same rate(33) New installation--An irrigation system installed at a location where one did not previously exist or is a complete replacement of an existing irrigation system.(34) Non-health hazard--A cross-connection, potential contamination hazard, or other situation involving any substance that generally will not be a health hazard but will constitute a nuisance or be aesthetically objectionable if introduced into the public water supply.(35) Non-potable water--Water that is not suitable for human consumption. Non-potable water sources include, but are not limited to, irrigation systems, lakes, ponds, streams, gray water, water condensate from cooling towers, reclaimed water, and harvested rainwater.(36) Pass-through contract--A written contract between a contractor or builder and a licensed irrigator or exempt business owner to perform part or all of the irrigation services. A pass-through contract is also referred to as a sub-contract.(37) Potable water--Water that is suitable for human consumption and meets the definition of drinking water in §290.38(23) of this title (relating to Definitions)).(38) Pressure Vacuum Breaker--An assembly that contains an independently operating internally loaded check valve and an independently operating loaded air inlet valve located on the discharge side of the check valve. Also known as a Pressure Vacuum Breaker Back-siphonage Prevention Assembly.(39) Reclaimed water--Domestic or municipal wastewater which has been treated to a quality suitable for beneficial use, such as landscape irrigation.(40) Records of landscape irrigation activities--The irrigation plans, contracts, warranty information, invoices, copies of permits, and all other documents that relate to irrigation services.(41) Reduced Pressure Principle Backflow Prevention Assembly--An assembly containing two independently acting approved check valves together with a hydraulically operating mechanically independent pressure differential relief valve located between the two check valves and below the first check valve.(42) Static water pressure--The pressure of water when it is not moving. Generally, this is the pressure available to the irrigation system.(43) Supervision--The on-the-job oversight and direction by a licensed irrigator who is fulfilling his or her professional responsibility to the client and/or employer in compliance with local and state requirements. Also performed by a licensed irrigation technician who is working under the direction of a licensed irrigator to perform irrigation services.(44) Temporary Irrigation System - A temporarily installed, above ground system of pipes and component parts used to distribute water to the landscaping of a site for the establishment of plant growth, reduction of dust, and erosion control. Temporary irrigation systems must meet the requirements in §344.66 of this title (relating to Temporary Irrigation Systems).(45) Water conservation--The design, installation, service, and operation of an irrigation system in a manner that prevents the waste of water, promotes the most efficient use of water, and applies the least amount of water that is required to maintain healthy individual plant material or turf, reduce dust, and control erosion.(46) Zone flow--A measurement, in gallons per minute or gallons per hour, of the actual flow of water through a zone valve, calculated by individually opening each zone valve and obtaining a valid reading after the pressure has stabilized. For design purposes, the zone flow is the total flow of all nozzles in the zone at a specific pressure.(47) Zone valve--An automatic valve that controls a single zone of a landscape irrigation system.</content><note type="source"><p>Source Note: The provisions of this §344.1 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c344/scB"><num value="B">SUBCHAPTER B</num><heading>STANDARDS OF CONDUCT FOR IRRIGATORS, IRRIGATION TECHNICIANS, AND IRRIGATION INSPECTORS, AND LOCAL REQUIREMENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c344/scB/s344.20"><num value="344.20">§344.20</num><heading>Purpose of Standards</heading><content>(a) The correct practice of irrigation as a science and profession is essential for the protection and conservation of the water resources of the state and shall be conducted by individuals who are held to the highest ethical standards. The legislature has vested the commission with the authority and duty to establish and enforce standards of professional conduct and ethics for practitioners in the irrigation industry.(b) Every applicant for an irrigator, irrigation technician, or irrigation inspector license shall become fully informed of the obligations and responsibilities inherent in the practice of irrigation as outlined by these standards of conduct. Each licensed irrigator, irrigation technician, or irrigation inspector is deemed to have notice of these standards of conduct and is required to abide by the standards.</content><note type="source"><p>Source Note: The provisions of this §344.20 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scB/s344.21"><num value="344.21">§344.21</num><heading>Intent</heading><content>(a) These standards of conduct are established to prescribe responsibility on the part of an irrigator, an irrigation technician, an irrigation inspector, and a qualifying exempt business owner to aid in governing the irrigation industry.(b) The commission will determine what actions constitute violations of the standards in accordance with Chapter 70 of this title (relating to Enforcement) and Texas Water Code, Chapter 7 and institute appropriate disciplinary action, which may lead to monetary penalties or the suspension or revocation of a license in accordance with the applicable state statutes.(c) This section does not apply to:(1) an on-site sewage disposal system, as defined by Texas Health and Safety Code, §366.002; or(2) an irrigation system:(A) used on or by an agricultural operation as defined by Texas Agriculture Code, §251.002; or(B) connected to a groundwater well used by the property owner for domestic use.</content><note type="source"><p>Source Note: The provisions of this §344.21 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scB/s344.22"><num value="344.22">§344.22</num><heading>Proficiency in the Field of Irrigation; Representation of Qualifications</heading><content>(a) All irrigators, irrigation technicians, and inspectors shall be knowledgeable of the current industry standards regarding selling, designing, providing consulting services, installing, maintaining, altering, repairing, or servicing irrigation systems, including the connection of such a system to any source of water and water conservation. All irrigators, irrigation technicians, and inspectors shall conform to the current adopted version of these rules and any local rules that do not conflict with these rules, or that are more stringent than these rules, when performing these activities.(b) All irrigators, irrigation technicians, irrigation inspectors, and exempt business owners shall accurately and truthfully represent to prospective clients their qualifications to perform the services requested and shall not perform services for which they are not qualified by experience, knowledge, or license in the technical field involved.(c) All irrigators, irrigation technicians, and inspectors shall be knowledgeable of local requirements related to landscape irrigation systems.</content><note type="source"><p>Source Note: The provisions of this §344.22 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scB/s344.23"><num value="344.23">§344.23</num><heading>Irrigation Practice</heading><content>False, misleading, or deceptive practices by an irrigator, installer, irrigation technician, or irrigation inspector relating to bidding, advertising, selling, installation, maintenance, alteration, repair, servicing, or inspection of irrigation systems are prohibited.</content><note type="source"><p>Source Note: The provisions of this §344.23 adopted to be effective January 1, 2009, 33 TexReg 5713.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scB/s344.24"><num value="344.24">§344.24</num><heading>Local Regulation and Inspection</heading><content>(a) Where any city, town, county, water district, other political subdivision of the state, or public water supplier requires licensed irrigators, irrigation technicians, or irrigation inspectors to comply with reasonable inspection requirements, ordinances, or regulations designed to protect the public water supply, any of which relates to work performed or to be performed within such political subdivision's territory the licensed irrigator, irrigation technician, or irrigation inspector shall comply with such requirements, ordinances, and regulations.(b) Any city, town, county, water district, other political subdivision of the state, or public water supplier that is not required to adopt rules or ordinances regulating landscape irrigation may adopt a landscape irrigation program by ordinance or rule and may be responsible for inspection of irrigation systems on sites that are connected to its public water supply system. Any rule or ordinance adopted to regulate landscape irrigation shall be at least as stringent as the requirements in this chapter.(c) Municipalities with a population of 20,000 or more shall verify that the irrigator that designs and installs an irrigation system holds a valid irrigator's license and has obtained a permit before installing a system within its territorial limits or its extraterritorial jurisdiction. Inspectors must verify that the design and installation meet the requirements of this chapter and local ordinances or rules that do not conflict with this chapter, or that are more stringent than this chapter.(d) A water district that chooses to implement a landscape irrigation program shall meet the program requirements in subsection (c) of this section.</content><note type="source"><p>Source Note: The provisions of this §344.24 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c344/scC"><num value="C">SUBCHAPTER C</num><heading>REQUIREMENTS FOR LICENSED IRRIGATORS, IRRIGATION TECHNICIANS, AND IRRIGATION INSPECTORS</heading><section identifier="/us/state/tx/tac/t30/p1/c344/scC/s344.30"><num value="344.30">§344.30</num><heading>License Required</heading><content>(a) An irrigator is an individual who:(1) performs irrigation services including the connection of such system to any water supply;(2) is not an exempt business owner and advertises or represents to anyone that the individual can perform irrigation services; and(3) is required to hold a valid irrigator license issued under Chapter 30 of this title (relating to Occupational Licenses and Registrations).(b) An irrigation technician is an individual who:(1) connects an irrigation system to a water supply;(2) under the supervision of a licensed irrigator, installs, maintains, alters, repairs, or services a landscape irrigation system;(3) represents to anyone that the individual can perform any or all of these functions; and(4) is required to hold a valid irrigation technician license issued under Chapter 30 of this title.(c) All irrigators and irrigation technicians shall comply with the rules contained in this chapter when performing any or all of the functions listed in this section.(d) An individual who inspects irrigation systems and enforces a municipality's landscape irrigation ordinance must:(1) hold a valid irrigation inspector license issued according to Chapter 30 of this title; or(2) hold a valid plumbing inspector license.(e) An individual who inspects irrigation systems and enforces a water district's rules related to landscape irrigation systems must:(1) hold a valid irrigation inspector license issued according to Chapter 30 of this title; or(2) hold a valid plumbing inspector license; or(3) be the district's operator; or(4) be employed by another regulatory authority with jurisdiction over landscape irrigation and hold the appropriate license.(f) An inspector shall comply with the rules contained in this chapter when performing any of the functions listed in this section.(g) A property owner is not required to be licensed in accordance with Texas Occupations Code, Title 12, §1903.002(c)(1) if they are performing irrigation work in a building or on a premise owned or occupied by the person as the person's home. A home or property owner who installs an irrigation system must meet the standards contained in §344.62(b), (c), (g), (j), and (k) of this title (relating to Minimum Design and Installation Requirements) concerning spacing; water pressure; spraying water over impervious materials; rain or moisture shut-off devices or other technology; and isolation valve. Municipalities or water districts may adopt more stringent requirements for a home or property owner who installs an irrigation system.</content><note type="source"><p>Source Note: The provisions of this §344.30 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scC/s344.31"><num value="344.31">§344.31</num><heading>Responsibilities of a Business Owner Who Provides Irrigation Services</heading><content>(a) Under Chapter 30 of this title (relating to Occupational Licenses and Registrations), a business owner who employs a licensed irrigator as an irrigator-in-charge to provide consulting services, to supervise, or conduct operations relating to irrigation services is exempt from the licensing requirements of Texas Occupations Code, Chapter 1903.(b) An exempt business owner who provides landscape irrigation services shall ensure that all irrigation services are supervised by a licensed irrigator, according to the requirements of this subchapter. An exempt business owner who engages in landscape irrigation is responsible for verifying the validity of the license belonging to all irrigators and irrigation technicians performing irrigation services for the business. An exempt business owner who engages in landscape irrigation is responsible for designating an irrigator-in-charge.</content><note type="source"><p>Source Note: The provisions of this §344.31 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scC/s344.33"><num value="344.33">§344.33</num><heading>Display of License</heading><content>(a) Irrigators and irrigation technicians shall prominently display their license certificate at the place of irrigation business or employment and shall present their license upon request by any regulatory authority, irrigation system's owner, or prospective owner.(b) Irrigation inspectors shall present their license, when requested by any entity that is regulated under this chapter, and when that request is made while an irrigation inspector is conducting business.</content><note type="source"><p>Source Note: The provisions of this §344.33 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scC/s344.34"><num value="344.34">§344.34</num><heading>Use of License</heading><content>(a) No one other than the irrigator, irrigation technician, or irrigation inspector to whom a license is issued shall use or attempt to use the license, which includes the license number.(b) An individual or entity who uses or attempts to use the license or license number of someone else who is a licensed irrigator, licensed irrigation technician, or licensed irrigation inspector is in violation of Texas Occupations Code, Chapter 1903, and this chapter.(c) An irrigator's license or license number may be used at only one entity as the irrigator-in-charge. An irrigator may work for other entities, but not as the irrigator-in-charge.(d) It is a violation of this chapter for an irrigator, irrigation technician or irrigation inspector to authorize or allow another person or entity to use the irrigator's, irrigation technician's, or irrigation inspector's license or license number in a manner inconsistent with this chapter.</content><note type="source"><p>Source Note: The provisions of this §344.34 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scC/s344.35"><num value="344.35">§344.35</num><heading>Duties and Responsibilities of Irrigators</heading><content>(a) An irrigator shall comply with the rules contained in this chapter when performing any or all of the functions described in this section.(b) An irrigator who performs work for an entity or for an exempt business owner who performs or offers to perform irrigation services shall be knowledgeable of and responsible for all permits, contracts, agreements, advertising, and other irrigation services secured and performed using the irrigator's license.(c) A licensed irrigator who is employed by an exempt business owner and designated as the irrigator-in-charge shall supervise all irrigation services of the business, in accordance with this chapter.(d) A licensed irrigator is responsible for:(1) using the seal in accordance with this chapter;(2) obtaining all permits and inspections required to install an irrigation system;(3) complying with local regulations;(4) determining the appropriate backflow prevention method for each irrigation system installation and installing the backflow prevention assembly correctly;(5) maintaining landscape irrigation systems records;(6) conserving water;(7) developing and following an irrigation plan for each new irrigation system;(8) designing an irrigation system that complies with the requirements of this chapter;(9) providing on-site supervision of the installation of irrigation systems;(10) providing supervision to an irrigation technician who is conducting irrigation services;(11) completing the irrigation system including the final "walk through," completing the maintenance checklist, placing a permanent sticker on the controller or on the maintenance checklist if the irrigation system does not have an automatic controller, and providing a copy of the design plan;(12) conducting irrigation services in compliance with the requirements of this chapter;(13) providing advertisements, contracts, and warranties that comply with the requirements of this chapter; and(14) installing an irrigation system that complies with the requirements of this chapter.</content><note type="source"><p>Source Note: The provisions of this §344.35 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scC/s344.36"><num value="344.36">§344.36</num><heading>Duties and Responsibilities of Irrigation Technicians</heading><content>(a) A licensed irrigation technician under the supervision of a licensed irrigator, is responsible for:(1) connecting an irrigation system to a water supply;(2) installing a backflow prevention assembly pursuant to §344.50 of this title (relating to Backflow Prevention Methods);(3) conducting irrigation services including maintaining, altering, repairing, servicing, or directing the installation of irrigation systems; and(4) conducting the final walk through in compliance with the requirements in §344.63 of this title (relating to Completion of Irrigation System Installation).(b) If an irrigation technician connects an irrigation system to a potable water supply, the connection and installation of the backflow prevention assembly must be as indicated on the site irrigation plan or as directed by the licensed irrigator and documented on the site irrigation plan.(c) An irrigation technician, under the supervision of a licensed irrigator, is responsible for:(1) connecting an irrigation system to a water supply; and(2) providing on-site supervision of the installation, maintenance, alteration, repair, service of an irrigation system including the final walk through with the irrigation system owner or owner's representative to explain the maintenance and operation of the irrigation system.(d) An irrigation technician shall not act as an irrigator nor advertise or offer to perform irrigation services.</content><note type="source"><p>Source Note: The provisions of this §344.36 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scC/s344.37"><num value="344.37">§344.37</num><heading>Duties and Responsibilities of Irrigation Inspectors</heading><content>(a) A licensed irrigation inspector or licensed plumbing inspector shall enforce the applicable irrigation rules or ordinance of the employing governmental entity and, at a minimum, is responsible for:(1) verifying that the appropriate permits have been obtained for an irrigation system;(2) verifying that the irrigator, irrigation technician, or water operator is licensed;(3) inspecting the irrigation system;(4) determining that the irrigation system complies with the requirements of this chapter;(5) determining that the appropriate backflow prevention assembly was installed, tested, and the test results were provided to the water purveyor;(6) investigating complaints related to irrigation systems including the advertisement of irrigation services; and(7) maintaining records according to this chapter. Each inspector shall maintain a log of all irrigation systems inspected that includes, but is not limited to, the system location, property owner, irrigator responsible for installation, permit status, problems noted during the inspection, and date of the inspection. The log must be kept for three years. The log shall be available for review within two business days of the request by authorized representatives of the commission or any regulatory authority with jurisdiction over landscape irrigation issues in the area the inspector is employed to inspect.(b) A licensed irrigation inspector, licensed plumbing inspector, a water district's operator or other appropriately licensed individual employed by a governmental entity shall be responsible for:(1) verifying that the appropriate permits have been obtained for an irrigation system;(2) verifying that the irrigator, irrigation technician, or water district operator is licensed;(3) inspecting the irrigation system;(4) determining that the irrigation system complies with the requirements of this chapter;(5) determining that the appropriate backflow prevention assembly was installed, tested, and the test results were provided to the water purveyor;(6) investigating complaints related to irrigation systems including the advertisement of irrigation services; and(7) each inspector shall maintain a log of all irrigation systems inspected that includes, but is not limited to, the system location, property owner, irrigator responsible for installation, permit status, problems noted during the inspection, and date of the inspection. The log must be kept for three years. The log shall be available for review within two business days of the request by authorized representatives of the commission or any regulatory authority with jurisdiction over landscape irrigation issues in the area the inspector is employed to inspect.</content><note type="source"><p>Source Note: The provisions of this §344.37 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scC/s344.38"><num value="344.38">§344.38</num><heading>Irrigator Records</heading><content>Upon the licensed irrigator obtaining the seal, in accordance with this chapter, an impression of the seal shall be made on letterhead, or other business stationary, and maintained on file for review by the commission. Archival copies of all records given to the irrigation system's owner or owner's representative shall be maintained by the irrigator. Records will be maintained by the irrigator for a period of three years from the date installation, maintenance, alteration, repair or service was completed. Irrigators shall make all records of landscape irrigation services available within ten business days of any request made by authorized representatives of the commission or the local regulatory authority with jurisdiction over landscape irrigation.</content><note type="source"><p>Source Note: The provisions of this §344.38 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c344/scD"><num value="D">SUBCHAPTER D</num><heading>LICENSED IRRIGATOR SEAL</heading><section identifier="/us/state/tx/tac/t30/p1/c344/scD/s344.40"><num value="344.40">§344.40</num><heading>Seal Required</heading><content>Each irrigator, upon being licensed with the commission, shall obtain a seal, as described in §344.41 of this title (relating to Seal Design). Licensed irrigators shall not engage in any landscape irrigation services without physical possession of the seal and the license. The irrigator is responsible for the security of the seal and for ensuring that it shall not be used in a manner that does not meet the requirements of this chapter.</content><note type="source"><p>Source Note: The provisions of this §344.40 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scD/s344.41"><num value="344.41">§344.41</num><heading>Seal Design</heading><content>(a) The required seal must be:(1) circular; and(2) not less than 1-1/2 inches in diameter.(b) The required seal must display:(1) the words "State of Texas" at the top between the knurled circles;(2) the words "Licensed Irrigator" at the bottom; and(3) the irrigator's name and license number, excluding leading zeros, horizontally in the circular field.</content><note type="source"><p>Source Note: The provisions of this §344.41 adopted to be effective January 1, 2009, 33 TexReg 5713.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scD/s344.42"><num value="344.42">§344.42</num><heading>Seal Display</heading><content>(a) On every document requiring an irrigator's seal, the seal shall be clearly visible and legible on the original document and all copies or reproductions of the original document.(b) An irrigator may use an alternative media (electronic, rubber stamp, embossing, etc.) to use their seal and signature if the seal, signature, and date are clearly visible and legible on the original document and all copies or reproductions of the original document.</content><note type="source"><p>Source Note: The provisions of this §344.42 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scD/s344.43"><num value="344.43">§344.43</num><heading>Seal Use</heading><content>(a) Irrigators shall:(1) sign their legal name;(2) affix the seal above the irrigator's signature; and(3) include the date of signing (month, day, and year) of each document to which the seal is affixed.(b) The presence of the irrigator's seal displayed above the irrigator's signature and date on any document constitutes the acceptance of all professional responsibility for the document and the irrigation services performed in accordance with that document.(c) The irrigator will maintain, for three years, a copy of each document bearing the irrigator's seal.(d) Once a document containing a seal is issued, the seal may not be altered.(e) Irrigators shall not change any plan or specification created by another irrigator unless:(1) the change is made to adapt the plan or specification to the specific site conditions and to address state and local requirements;(2) the irrigator accepts full responsibility for any changes the irrigator makes to the original plan or specification; and(3) the irrigator seals and dates the changes made to the original irrigation plan.(f) If an irrigator prepares only a portion of a plan or specification, that portion of the plan or specification must be sealed by the irrigator and clearly identified.(g) Irrigators shall sign, seal and date the irrigation plan and specifications, contract, addenda or change orders, warranty, and the maintenance checklist.</content><note type="source"><p>Source Note: The provisions of this §344.43 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c344/scE"><num value="E">SUBCHAPTER E</num><heading>BACKFLOW PREVENTION AND CROSS-CONNECTIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c344/scE/s344.50"><num value="344.50">§344.50</num><heading>Backflow Prevention Methods</heading><content>(a) All backflow prevention assemblies installed per this chapter shall be installed according to manufacturer's recommendations and provided with sufficient clearance to facilitate testing.(b) If conditions that present a health hazard exist, one of the following types of backflow prevention shall be used.(1) An air gap may be used if installed per the definition of air gap in §344.1(1) of this title (relating to Definitions).(2) Reduced pressure principle backflow prevention assemblies may be used if installed per subsection (a) of this section and:(A) the assembly is installed at a minimum of 12 inches above ground in a location that will ensure that the assembly will not be submerged; and(B) drainage is provided for any water that may be discharged through the relief valve.(3) Pressure vacuum breakers may be used if installed per subsection (a) of this section and:(A) there is no actual or potential for a back-pressure condition; and(B) the assembly is installed at a minimum of 12 inches above any downstream piping and the highest downstream opening. Pop-up sprinklers are measured from the retracted position from the top of the sprinkler.(4) Spill-resistant pressure vacuum breakers may be used if installed per subsection (a) of this section and:(A) there is no actual or potential for a back-pressure condition; and(B) the assembly is installed at a minimum of 12 inches above any downstream piping and the highest downstream opening. Pop-up sprinklers are measured from the retracted position from the top of the sprinkler.(c) If there are no conditions that present a health hazard, double check valve backflow prevention assemblies may be used to prevent backflow if the assembly is tested upon installation and:(1) a local regulatory authority does not prohibit the use of a double check valve; and(2) test cocks are used for testing only.(d) Double check valve assemblies installed below ground shall meet the following installation requirements:(1) test cocks shall be plugged, except when the double check valve is being tested;(2) test cock plugs shall be threaded, water-tight, and made of non-ferrous material; and(3) there shall be a clearance all the way around the assembly to allow space for testing and repair.(e) At a minimum, all backflow prevention assemblies shall be tested by a licensed backflow prevention assembly tester upon installation, repair, replacement, or relocation. Those backflow prevention assemblies used in irrigation systems designated as health hazards shall be tested annually.</content><note type="source"><p>Source Note: The provisions of this §344.50 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scE/s344.51"><num value="344.51">§344.51</num><heading>Specific Conditions and Cross-Connection Control</heading><content>(a) Before any chemical is added by any method (aspiration, injection, etc.) to an irrigation system which is connected to any potable water supply, the irrigation system shall be connected through a reduced pressure principle backflow prevention assembly or air gap.(b) Irrigation system components treated with chemical additives and connected to any potable water supply shall be connected through a reduced pressure principle backflow prevention assembly.(c) Connection of more than one water source to an irrigation system presents the potential for contamination of the potable water supply if backflow occurs. Therefore, connection of any additional water source to an irrigation system that is connected to the potable water supply can only be made if the irrigation system is connected to the potable water supply through a reduced-pressure principle backflow prevention assembly or an air gap.(d) If an irrigation system is designed or installed on a property that is served by an on-site sewage facility, as defined in Chapter 285 of this title (relating to On-Site Sewage Facilities), then:(1) all irrigation piping and valves shall meet the separation distances from the On-Site Sewage Facilities system as required for a private water line in §285.91(10) of this title (relating to Tables), concerning the minimum required separation distances for on-site sewage facilities;(2) the irrigation system is designated a health hazard and any connections using a private or public potable water source shall be connected to the water source through a reduced pressure principle backflow prevention assembly as defined in §344.50 of this title (relating to Backflow Prevention Methods); and(3) any water from the irrigation system that is applied to the surface of the area utilized by the On-Site Sewage Facility system shall be controlled on a separate irrigation zone or zones so as to allow complete control of any irrigation to that area so that there will not be excess water that would prevent the On-Site Sewage Facilities system from operating effectively.</content><note type="source"><p>Source Note: The provisions of this §344.51 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scE/s344.52"><num value="344.52">§344.52</num><heading>Installation of Backflow Prevention Assembly</heading><content>(a) If an irrigation system is connected to a potable water supply and requires major maintenance, alteration, repair, or service, the system shall be connected to the potable water supply through an approved, properly installed backflow prevention method as defined in this title before any major maintenance, alteration, repair, or service is performed.(b) If an irrigation system is connected to a potable water supply through a double check valve, pressure vacuum breaker, or reduced pressure principle backflow prevention assembly and includes an automatic master valve on the system, the automatic master valve shall be installed on the discharge side of the backflow prevention assembly.(c) The irrigator shall ensure the backflow prevention assembly is tested prior to being placed in service and the test results provided to the local water purveyor within ten business days of testing the backflow prevention assembly.</content><note type="source"><p>Source Note: The provisions of this §344.52 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c344/scF"><num value="F">SUBCHAPTER F</num><heading>STANDARDS FOR DESIGNING, INSTALLING, AND MAINTAINING LANDSCAPE IRRIGATION SYSTEMS</heading><section identifier="/us/state/tx/tac/t30/p1/c344/scF/s344.60"><num value="344.60">§344.60</num><heading>Water Conservation</heading><content>All irrigation systems shall be designed, installed, maintained, altered, repaired, serviced, and operated in a manner that will promote water conservation as defined in §344.1(45) of this title (relating to Definitions).</content><note type="source"><p>Source Note: The provisions of this §344.60 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scF/s344.61"><num value="344.61">§344.61</num><heading>Minimum Standards for the Design of the Irrigation Plan</heading><content>(a) An irrigator shall prepare a site-specific irrigation plan for each new irrigation system. The irrigation plan must be on the job site during the installation of the irrigation system and must be consulted for installation requirements.(b) The irrigation plan must show that the irrigation system provides complete coverage of all areas to be irrigated. If there are areas on the site that are not to be irrigated, they must be clearly identified on the irrigation plan.(c) All irrigation plans used for construction must be drawn to scale. The plan must include, at a minimum, the following information:(1) the irrigator's seal, signature, and date of signing;(2) all major physical features in accordance with subsection (b) of this section including, but not limited to, property lines, streets, sidewalks, buildings, fences, flower bed lines, and the boundaries of the areas to be watered;(3) a North arrow;(4) a legend showing the symbols used in the irrigation plan and an accurate description of what the symbol represents;(5) the zone flow measurement for each zone which includes the zone/controller station number and the zone valve size;(6) location and type of each:(A) controller;(B) sensor (for example, but not limited to, rain, moisture, wind, flow, or freeze);(7) specifications for all irrigation system components to include, but not limited to, location, type, size, manufacturer, model number, operating pressure, flow range, radius of throw;(8) the scale used; and(9) the design pressure.(d) During the installation of the irrigation system, changes from the original plan may be authorized by the licensed irrigator if they are clearly documented in red ink on the irrigation plan and the change does not:(1) diminish the operational integrity of the irrigation system; and(2) violate any requirements of this chapter.(e) All changes to the irrigation plan shall be documented as an as-built drawing.</content><note type="source"><p>Source Note: The provisions of this §344.61 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scF/s344.62"><num value="344.62">§344.62</num><heading>Minimum Design and Installation Requirements</heading><content>(a) No irrigation design or installation shall require the use of any component, including the water meter, in a way which exceeds the manufacturer's published performance limitations for the component.(b) Spacing.(1) The maximum spacing between emission devices must not exceed the manufacturer's published radius or spacing of the device(s). The radius or spacing is determined by referring to the manufacturer's published specifications for a specific emission device at a specific operating pressure. In no instance shall the spacing exceed plus or minus 10% of the manufacturer's published radius or spacing of the device(s).(2) New irrigation systems shall not utilize above-ground spray emission devices in landscapes that are less than 48 inches not including the impervious surfaces in either length or width and which contain impervious pedestrian or vehicular traffic surfaces along two or more perimeters.(3) Pop-up spray heads or rotary sprinkler heads must direct flow away from any adjacent surface and shall not be installed closer than four inches from a hardscape, such as, but not limited to, a building foundation, fence, concrete, asphalt, pavers, or stones set with mortar. Narrow paved walkways, jogging paths, golf cart paths or other small areas located in cemeteries, parks, golf courses or other public areas may be exempted from this requirement if the runoff drains into a landscaped area.(c) Water pressure. Emission devices must be installed to operate at the optimum or recommended sprinkler head pressure as published by the manufacturer for the nozzle and head spacing that is used. If an optimum or recommended pressure is not published, then the emission devices must be installed to operate at not below the minimum and not above the maximum sprinkler head pressure as published by the manufacturer for the nozzle and head spacing that is used. Methods to achieve the water pressure requirements include, but are not limited to, flow control valves, a pressure regulator, or pressure compensating spray heads.(d) Piping. Polyvinyl chloride (PVC) piping in irrigation systems must be designed and installed so that the flow of water in the pipe will not exceed a velocity of five feet per second.(e) Irrigation Zones. Irrigation systems shall have separate zones based on plant material type, microclimate factors, topographic features, soil conditions, and hydrological requirements.(f) Matched precipitation rate. Zones must be designed and installed so that all of the emission devices in that zone irrigate at the same precipitation rate.(g) Irrigation systems shall not spray water on or over any surfaces made of impervious material including but not limited to concrete, asphalt, brick, wood, stones set with mortar, walls, fences, sidewalks, and streets.(h) Master valve. When provided, a master valve shall be installed on the discharge side of the backflow prevention assembly on all new installations.(i) PVC pipe primer solvent. All new irrigation systems that are installed using PVC pipe and fittings shall be primed with a colored primer prior to applying the PVC cement in accordance with the Uniform Plumbing Code (Section 316) or the International Plumbing Code (Section 605).(j) Rain or moisture shut-off devices or other technology. All new automatically controlled irrigation systems must include sensors or other technology designed to inhibit or interrupt operation of the irrigation system during periods of moisture or rainfall. Rain or moisture shut-off technology must be installed according to the manufacturer's published recommendations. Repairs to existing automatic irrigation systems that require replacement of an existing controller must include a sensor or other technology designed to inhibit or interrupt operation of the irrigation system during periods of moisture or rainfall. El Paso, Hudspeth, Culberson, Jeff Davis, Presidio, Brewster, Terrell, Loving, Winkler, Ward, Reeves, Ector, Crane and Pecos Counties are excluded from this requirement.(k) Isolation valve. All new irrigation systems must include an isolation valve between the water meter and the backflow prevention assembly.(l) Depth coverage of piping. Piping in all irrigation systems must be installed according to the manufacturer's published specifications for depth coverage of piping.(1) If the manufacturer has not published specifications for depth coverage of piping, the piping must be installed to provide minimum depth coverage of six inches of select backfill, between the top of the topmost pipe and the natural grade of the topsoil. All portions of the irrigation system that fail to meet this standard must be noted on the irrigation plan/as-built drawing. If the area being irrigated has rock at a depth of six inches or less, select backfill may be mounded over the pipe. Mounding must be noted on the irrigation plan/as-built drawing and discussed with the irrigation system owner or owner's representative to address any safety issues.(2) If a utility, man-made structure, or roots create an unavoidable obstacle, which makes the six-inch depth coverage requirement impractical, the piping shall be installed to provide a minimum of two inches of select backfill between the top of the topmost pipe and the natural grade of the topsoil.(3) All trenches and holes created during installation of an irrigation system must be backfilled and compacted to the original grade.(m) Wiring irrigation systems.(1) Underground electrical wiring used to connect an automatic controller to any electrical component of the irrigation system must be listed by Underwriters Laboratories as acceptable for burial underground.(2) Electrical wiring that connects any electrical components of an irrigation system must be sized according to the manufacturer's recommendation.(3) Electrical wire splices which may be exposed to moisture must be waterproof as certified by the wire splice manufacturer.(4) Underground electrical wiring that connects an automatic controller to any electrical component of the irrigation system must be buried with a minimum of six inches of select backfill.(n) Water contained within the piping of an irrigation system is deemed to be non-potable. No drinking or domestic water usage, such as, but not limited to, filling swimming pools or decorative fountains, shall be connected to an irrigation system. If a hose bib (an outdoor water faucet that has hose threads on the spout) is connected to an irrigation system for the purpose of providing supplemental water to an area, the hose bib must be installed using a quick coupler key on a quick coupler installed in a valve box with a colored-coded purple lid or cover and the hose bib and any hoses connected to the bib must be labeled "non-potable, not safe for drinking." An isolation valve must be installed upstream of a quick coupler connecting a hose bib to an irrigation system.(o) A licensed irrigator or licensed irrigation technician shall be on-site at all times while the landscape irrigation system is being installed. When an irrigator is not on-site, the irrigator shall be responsible for ensuring that a licensed irrigation technician is on-site to supervise the installation of the irrigation system.(p) Valve boxes. A valve box shall be used as a durable, rigid enclosure for valves and/or any other irrigation system components that require subsurface protection.</content><note type="source"><p>Source Note: The provisions of this §344.62 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scF/s344.63"><num value="344.63">§344.63</num><heading>Completion of Irrigation System Installation</heading><content>Upon completion of the irrigation system, the irrigator or irrigation technician who provided the on-site supervision for the installation shall be required to provide four items:(1) a final "walk through" with the irrigation system's owner or the owner's representative to explain the operation of the system;(2) The completed maintenance checklist on which the irrigator or irrigation technician shall obtain the signature of the irrigation system's owner or owner's representative and shall sign, date, and seal the checklist. If the irrigation system's owner or owner's representative is unwilling or unable to sign the maintenance checklist, the irrigator shall note the time and date of the refusal on the irrigation system's owner or owner's representative's signature line. The irrigation system owner or owner's representative will be given the original maintenance checklist and a duplicate copy of the maintenance checklist shall be maintained by the irrigator. The items on the maintenance checklist shall include but are not limited to:(A) the manufacturer's manual for the automatic controller, if one is used;(B) a seasonal (spring, summer, fall, winter) watering schedule based on either current/real time evapotranspiration data or monthly historical evapotranspiration data, monthly effective rainfall estimates, plant landscape coefficient factors, and site factors;(C) a list of irrigation system components (nozzle, pump filters, etc.) that require maintenance and the recommended frequency for the service; and(D) the statement, "This irrigation system has been installed in accordance with all applicable state regulations as well as applicable local laws, ordinances, rules, or orders. I have tested the system and determined that it has been installed according to the Irrigation Plan/As-built drawing and is properly adjusted for the most efficient application of water at this time."(3) A permanent sticker printed with waterproof ink which contains the irrigator's name, license number, company name, telephone number and the dates of the warranty period shall be affixed to each automatic controller installed by the irrigator or irrigation technician. If the irrigation system is manual, the sticker shall be affixed to the original maintenance checklist.(4) The irrigation plan/as-built drawing indicating the actual installation of the system must be provided to the irrigation system's owner or owner's representative.</content><note type="source"><p>Source Note: The provisions of this §344.63 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scF/s344.64"><num value="344.64">§344.64</num><heading>Maintenance, Alteration, Repair, or Service of Irrigation Systems</heading><content>(a) All trenches and holes created during the maintenance, alteration, repair, or service of an irrigation system must be backfilled and returned to the original grade with suitable soil free of any objects that could damage the plumbing of the irrigation system. The backfill must be compacted such that a depression does not develop.(b) Colored polyvinyl chloride (PVC) pipe primer solvent must be used on all PVC pipes and fittings used in the maintenance, alteration, repair, or service of an irrigation system in accordance with the Uniform Plumbing Code (Section 316) or the International Plumbing Code (Section 605).(c) When maintenance, alteration, repair or service of an irrigation system involves excavation work at the water meter or at a point upstream of the backflow prevention assembly, an isolation valve shall be installed, if an isolation valve is not currently installed per §344.62(k) of this title (relating to Minimum Design and Installation Requirements).</content><note type="source"><p>Source Note: The provisions of this §344.64 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scF/s344.65"><num value="344.65">§344.65</num><heading>Reclaimed Water</heading><content>Reclaimed water may be utilized in landscape irrigation systems if:(1) there is no direct contact with edible crops, unless the crop is pasteurized before consumption;(2) the irrigation system does not spray water across property lines that do not belong to the irrigation system's owner;(3) the irrigation system is installed using purple components;(4) the domestic potable water line providing water to the site is connected using an air gap or a reduced pressure principle backflow prevention assembly in accordance with §290.47(f) of this title (relating to Appendices);(5) a minimum of an eight-inch by eight-inch sign, in English and Spanish, is prominently posted on/in the area that is being irrigated, that reads, "RECLAIMED WATER - DO NOT DRINK" and "AGUA DE RECUPERACIÓN - NO BEBER"; and(6) backflow prevention on the reclaimed water supply line shall be in accordance with the regulations of the water purveyor.</content><note type="source"><p>Source Note: The provisions of this §344.65 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scF/s344.66"><num value="344.66">§344.66</num><heading>Temporary Irrigation Systems</heading><content>(a) Temporary irrigation systems must be installed by a licensed irrigator or an irrigation technician under the supervision of a licensed irrigator.(b) Temporary irrigation systems must meet the backflow prevention requirements in Subchapter E of this chapter (relating to Backflow Prevention and Cross-Connections).(c) Temporary irrigation systems must be installed in accordance with §344.1(45) of this title (relating to Definitions).(d) Temporary irrigation systems must have established a definite end date at which time the temporary irrigation system must be removed.</content><note type="source"><p>Source Note: The provisions of this §344.66 adopted to be effective July 26, 2020, 45 TexReg 4986.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c344/scG"><num value="G">SUBCHAPTER G</num><heading>ADVERTISING, CONTRACT, AND WARRANTY</heading><section identifier="/us/state/tx/tac/t30/p1/c344/scG/s344.70"><num value="344.70">§344.70</num><heading>Advertisement</heading><content>(a) All vehicles used in the performance of irrigation services must display the irrigator's license number in the form of "LI________" in a contrasting color of block letters at least two inches high, visible on both outward sides of the vehicle.(b) All forms of advertisement for irrigation services, regardless of the type of media, must display the irrigator's license number in the form of "LI___________." Any form of advertisement which displays an entity's or individual's name other than that of the licensed irrigator must also display the name of the licensed irrigator and the licensed irrigator's license number. Trailers that advertise irrigation services must display the irrigator's license number.(c) At the location of the permanent structure where the irrigation business is primarily conducted and irrigation records are kept, the name, mailing address, and telephone number of the commission must be prominently displayed on a legible sign in plain view for the purpose of addressing complaints.</content><note type="source"><p>Source Note: The provisions of this §344.70 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scG/s344.71"><num value="344.71">§344.71</num><heading>Contracts</heading><content>(a) All contracts to install an irrigation system must be in writing and signed by each party and must specify the irrigator's name, license number, business address, current business telephone numbers, the date that each party signed the agreement, the total agreed price, and must contain the statement, "Irrigation in Texas is regulated by the Texas Commission on Environmental Quality (TCEQ), MC-235, P.O. Box 13087, Austin, Texas 78711-3087. TCEQ's website is: www.tceq.texas.gov." All contracts must include the irrigator's seal, signature, and date.(b) All written estimates, proposals, bids, and invoices relating to the installation or repair of an irrigation system(s) must include the irrigator's name, license number, business address, current business telephone number(s), and the statement: "Irrigation in Texas is regulated by the Texas Commission on Environmental Quality (TCEQ) (MC-235), P.O. Box 13087, Austin, Texas 78711-3087. TCEQ's website is: www.tceq.texas.gov."(c) An individual who agrees by contract to provide irrigation services as defined in §344.30 of this title (relating to License Required) shall hold an irrigator license issued under Chapter 30 of this title (relating to Occupational Licenses and Registrations) unless the contract is a pass-through contract as defined in §344.1(36) of this title (relating to Definitions). If a pass-through contract includes irrigation services, then the irrigation portion of the contract can only be performed by a licensed irrigator. If an irrigator installs a system pursuant to a pass-through contract, the irrigator shall still be responsible for providing the irrigation system's owner or owner's representative a copy of the warranty and all other documents required under this chapter. A pass-through contract must identify by name and license number the irrigator that will perform the work and must provide a mechanism for contacting the irrigator for irrigation system warranty work.(d) The contract must include the dates that the warranty is valid.</content><note type="source"><p>Source Note: The provisions of this §344.71 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c344/scG/s344.72"><num value="344.72">§344.72</num><heading>Warranties</heading><content>(a) On all installations of new irrigation systems, an irrigator shall present the irrigation system's owner or owner's representative with a written warranty covering materials and labor furnished in the new installation of the irrigation system. The irrigator shall be responsible for adhering to terms of the warranty. If the irrigator's warranty is less than the manufacturer's warranty for the system components, then the irrigator shall provide the irrigation system's owner or the owner's representative with applicable information regarding the manufacturer's warranty period. The warranty must include the irrigator's seal, signature, and date. If the warranty is part of an irrigator's contract, a separate warranty document is not required.(b) An irrigator's written warranty on new irrigation systems must specify the irrigator's name, business address, and business telephone number(s), must contain the signature of the irrigation system's owner or owner's representative confirming receipt of the warranty and must include the statement: "Irrigation in Texas is regulated by the Texas Commission on Environmental Quality (TCEQ), MC-235, P.O. Box 130897, Austin, Texas 78711-3087. TCEQ's website is: www.tceq.texas.gov."(c) On all maintenance, alterations, repairs, or service to existing irrigation systems, an irrigator shall present the irrigation system's owner or owner's representative a written and sealed document that details the work performed and identifies the materials furnished. If a warranty is provided, the irrigator shall abide by the terms. The warranty document must include the irrigator's name and business contact information. The irrigator is responsible for all work that is performed by the irrigator or that is performed under the irrigator's direction on an irrigation system installed by the irrigator during the warranty period. The irrigator is not responsible for any work performed by any other individual on the same irrigation system.</content><note type="source"><p>Source Note: The provisions of this §344.72 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c344/scH"><num value="H">SUBCHAPTER H</num><heading>IRRIGATOR ADVISORY COUNCIL</heading><section identifier="/us/state/tx/tac/t30/p1/c344/scH/s344.80"><num value="344.80">§344.80</num><heading>Irrigator Advisory Council</heading><content>(a) The Irrigator Advisory Council is composed of nine members that are appointed by the commission. Appointments to the council will be made without regard to race, creed, sex, religion, or national origin of the appointees. The purpose of the council is to give the commission the benefit of the members' collective business, environmental, and technical expertise and experience with respect to matters relating to landscape irrigation. The council has no executive or administrative powers or duties with respect to the operation of the commission, and all such powers and duties rest solely with the commission.(b) Six members of the council must be licensed irrigators who are residents of the State of Texas, experienced in the irrigation business, and familiar with irrigation methods and techniques.(c) Three members must be representatives of the public. A person is not eligible for appointment as a public member if the person or the person's spouse:(1) is licensed by an occupational regulatory agency in the field of irrigation; or(2) is employed by, participates in the management of, or has, other than as a consumer, a financial interest in a business entity or other organization related to the field of irrigation.(d) It is grounds for removal from the council by the commission if a member:(1) does not meet, at the time of the appointment, the qualifications that are required by subsection (b) or (c) of this section for appointment to the council;(2) does not maintain, during service on the council, the qualifications that are required by subsection (b) or (c) of this section for appointment to the council; or(3) misses three consecutive regularly scheduled meetings or more than half of all the regularly scheduled meetings in a one-year period.(e) The members of the council serve staggered six-year terms, with the terms expiring February 1 of each odd-numbered year. For cases where a council member cannot finish their term, the replacement member will serve the remainder of the term.(f) A member of the council is entitled to per diem as appropriated by the Texas Legislature for each day that the member engages in the business of the council. A member is entitled to reimbursement for travel expenses, including expenses for meals and lodging, as provided for in the General Appropriations Act.(g) The council shall hold meetings at the call of the commission or chairman.(h) A majority of the council constitutes a quorum for conducting business.(i) The council will elect a chairman by a majority vote.</content><note type="source"><p>Source Note: The provisions of this §344.80 adopted to be effective January 1, 2009, 33 TexReg 5713; amended to be effective July 26, 2020, 45 TexReg 4986.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c350"><num value="350">CHAPTER 350</num><heading>TEXAS RISK REDUCTION PROGRAM</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c350/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL INFORMATION</heading><section identifier="/us/state/tx/tac/t30/p1/c350/scA/s350.1"><num value="350.1">§350.1</num><heading>Purpose</heading><content>This chapter specifies the information and procedures necessary to demonstrate compliance with the Texas Risk Reduction Program. This program provides a consistent corrective action process directed toward protection of human health and the environment balanced with the economic welfare of the citizens of this state. This program uses a tiered approach incorporating risk assessment techniques to help focus investigations, to determine appropriate protective concentration levels for human health, and when necessary, for ecological receptors. The program also sets reasonable response objectives that will protect human health and the environment and preserve the active and productive use of land.(1) The provisions of this chapter in no way prohibit actions which should be taken by the person to mitigate emergency situations, to abate an ongoing release, or to stabilize or abate the spread of released chemicals of concern.(2) All engineering, geoscientific, and surveying information submitted to the agency shall be prepared by, or under the supervision of, a licensed professional engineer, licensed professional geoscientist, or licensed professional surveyor and shall be signed, sealed, and dated by qualified professionals as required by the Texas Engineering Practice Act, the Texas Geoscience Practice Act, the Texas Professional Land Surveying Practices Act and the licensing and registration boards under these acts.</content><note type="source"><p>Source Note: The provisions of this §350.1 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective September 1, 2003, 28 TexReg 6935.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scA/s350.2"><num value="350.2">§350.2</num><heading>Applicability</heading><content>(a) General applicability. On May 1, 2000, persons shall comply with the requirements of this chapter to the extent not modified by the provisions of this section. Before May 1, 2000, the person may use this chapter upon the effective date of the chapter. The rules in this chapter specify objectives for response actions for affected properties and further specify the mechanism to evaluate such response actions once an obligation is established to take a response action via other applicable rules, orders, permits or statutes. All actions undertaken and demonstrations required by this chapter must be performed and documented to the reasonable satisfaction of the executive director. Additionally, no person shall submit information to the executive director or to parties who are required to be provided information under this chapter which they know or reasonably should have known to be false or intentionally misleading, or fail to submit available information which is critical to the understanding of the matter at hand or to the basis of critical decisions which reasonably would have been influenced by that information. This chapter does not establish requirements for reporting releases to program areas. The regulations in this chapter address releases of chemicals of concern (COCs) as defined by various programs subject to this chapter as specified in subsections (b) - (m) of this section. However, the regulations in this chapter do not eliminate the need for the person to meet any more stringent or additional requirements found in the particular rules for the covered program areas or applicable federal requirements.(b) Property where a release of COCs occurs that is regulated under Chapter 327 of this title (relating to Spill Prevention and Control), as amended. The person shall first complete notification for releases under §327.3 of this title (relating to Notification Requirements), as amended, and then conduct response actions under §327.5 of this title (relating to Actions Required), as amended. The person shall utilize this chapter to conduct response actions when either the conditions of paragraphs (1) or (2) of this subsection apply.(1) The person chooses to respond under this chapter to a release of COCs within the first six months after the release is reported to the executive director.(2) The person determines that the response action to the release of COCs cannot be completed to the satisfaction of the executive director within the first six months following notification to the executive director.(c) Property regulated under Chapter 330 of this title (relating to Municipal Solid Waste). Persons shall comply with the requirements of this chapter for those municipal solid waste properties except when subject to the requirements of 40 Code of Federal Regulations Parts 257 and/or 258, as amended. However, for those municipal solid waste properties subject to the requirements of 40 Code of Federal Regulations Parts 257 and/or 258, as amended, the executive director may establish an alternative health-based groundwater protection standard for a COC in accordance with §330.409 of this title (relating to Assessment Monitoring Program), as amended. Determination of such an alternative standard shall be made using the procedures of Subchapter D of this chapter (relating to Development of Protective Concentration Levels).(d) Property regulated under Chapter 331 of this title (relating to Underground Injection Control). The person shall address unauthorized releases of COCs from associated tankage and equipment utilizing the procedures of this chapter. Excursions of injected mining solutions at in-situ mining properties or injection of waste which is confined below all underground sources of drinking water as defined in §331.2 of this title (relating to Definitions), as amended, are not subject to the requirements of this chapter.(e) Property regulated under Chapter 332 of this title (relating to Composting). The person shall comply with the requirements of this chapter to conduct assessments, response actions, and post-response action care for releases of COCs in environmental media at a compost facility, mulching facility or land application property authorized under Chapter 332 of this title, as amended.(f) Property regulated under Chapter 333 of this title (relating to Brownfields Initiatives). The person entering the Voluntary Cleanup Program (VCP) shall comply with all requirements found in the Texas Health and Safety Code, Chapter 361, Subchapter S, as amended, concerning the Voluntary Cleanup Program; Subchapter A of Chapter 333 of this title (relating to Voluntary Cleanup Program Section), as amended; and the requirements of this chapter. Where there is a conflict between the requirements of this chapter and the requirements in the Texas Health and Safety Code, Chapter 361, Subchapter S, as amended, and Chapter 333, Subchapter A of this title, as amended, the requirements of the Texas Health and Safety Code, Chapter 361, Subchapter S, as amended, and Chapter 333, Subchapter A of this title, as amended, shall apply.(g) Property regulated under Chapter 334 of this title (relating to Underground and Aboveground Storage Tanks). The person shall comply with the requirements of Chapter 334 of this title and not this chapter for the assessment, response actions, and post-response action care for releases of regulated substances from underground storage tanks (USTs) and aboveground storage tanks (ASTs).(h) Property regulated under Chapter 335 of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste). The person shall comply with the requirements of this chapter when undertaking the remediation of affected property at facilities used for the storage, processing or disposal of industrial solid waste or municipal hazardous waste, or for the remediation of environmental media containing COCs resulting from releases from waste management facility components (e.g., tank, container storage area, surface impoundment, etc.), either as part of closure or at any time before or after closure. The person shall close a waste management facility component in a manner that minimizes or eliminates the need for further maintenance and controls. The manner of closure shall also minimize or eliminate, to the extent necessary to protect human health and the environment, the post-closure escape of waste, contaminants, leachate, run-off, or decomposition products to the surrounding environmental media. Waste management facility components undergoing closure for which the person can demonstrate that no release of COCs to surrounding environmental media has occurred are subject to this chapter only with regard to this closure performance standard and the removal, decontamination or control requirements for waste as specified in Subchapter B of this chapter (relating to Remedy Standards). In the event a release of COCs to surrounding environmental media has occurred, then the person shall comply with this chapter for response to the release. The person shall comply with §335.118(b) of this title (relating to Closure Plan; Submission and Approval of Plan), as amended, or applicable permit provisions regarding requirements for public participation in the corrective action process for permitted hazardous waste facilities. The person shall also comply with the requirements of paragraphs (1) - (3) of this subsection, as applicable.(1) Any person who stores, processes, or disposes of industrial solid waste or municipal hazardous waste at a facility permitted under §335.2(a) of this title (relating to Permit Required), as amended, shall, unless specifically modified by other order of the commission, close the facility in accordance with the closing provisions of the permit.(2) Any person who stores, processes, or disposes of hazardous waste is also subject to the applicable provisions relating to closure and post-closure in Chapter 335, Subchapters E and F of this title (relating to Interim Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities; and Permitting Standards for Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal Facilities, respectively), as amended.(3) The person may utilize this chapter to determine if COCs, specifically listed hazardous waste or hazardous constituents, exceed concentrations protective of human health and the environment when making "contained-in" determinations for environmental media being managed as wastes (e.g., excavated soils, investigation derived wastes such as monitor well purge water, etc.) for purposes of treatment or disposal in a different location. In such cases, the person must still perform a waste classification in response to Chapter 335, Subchapters A and R of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste Management in General; and Waste Classification, respectively), as amended.(4) The person may propose a facility operations area (FOA) to address multiple sources of COCs within an active facility that is required to perform corrective action for releases pursuant to a permit or commission corrective action order. The requirements for establishing a FOA are specified in Subchapter G of this chapter (relating to Establishing a Facility Operations Area).(i) Affected property regulated under Chapter 335, Subchapter K of this title (relating to Hazardous Substance Facilities Assessment and Remediation). The person shall comply with all requirements found in the Texas Health and Safety Code, Chapter 361, Subchapter F, as amended; Chapter 335, Subchapter K of this title, as amended; and the requirements of this chapter for any release or threatened release of hazardous substances into the environment that may constitute an imminent and substantial endangerment to public health and safety or the environment. Where there is a conflict between the requirements in this chapter and the requirements of Texas Health and Safety Code, Chapter 361, Subchapter F, as amended, and Chapter 335, Subchapter K of this title, as amended, the requirements of Texas Health and Safety Code, Chapter 361, Subchapter F and Chapter 335, Subchapter K of this title shall apply.(j) Property regulated under Chapter 336 of this title (relating to Radioactive Substance Rules). The person shall comply with the requirements of Chapter 336 of this title, as amended, regarding contamination limits for radioactive material in environmental media. In instances involving remediation of releases in media containing both radioactive material and other COCs, the person shall use the contamination limits determined in accordance with Chapter 336 of this title, as amended, for radioactive material and PCLs determined by the procedures of this chapter for other COCs.(k) Property regulated under Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation). The executive director may reference this chapter in permits subject to Chapter 312 of this title, as amended, when specifying closure provisions to address releases of COCs from facility components at municipal wastewater treatment plants.(l) Other releases. The executive director may require the use of this chapter to address other releases of COCs subject to Texas Water Code, Chapter 26, as amended.(m) Use of this chapter on or after May 1, 2000. The person who started a response action under Chapter 335, Subchapters A and S of this title (relating to Industrial Solid Waste and Municipal Hazardous Waste in General; Risk Reduction Standards, respectively), as amended, may qualify to continue under those previous commission rules subject to the limitations specified in paragraphs (1) - (4) of this subsection. Any person desiring to remain under Chapter 335 of this title may not use any of the provisions of this chapter. If a person elects to proceed under this chapter, then they shall not be allowed to return to Chapter 335 of this title. Also, the person shall respond as described in §350.35 of this title (relating to Substantial Change in Circumstances) in the event a substantial change in circumstance occurs which results in an unacceptable threat to human health or the environment.(1) The person who has submitted an initial notification of intent to conduct a Risk Reduction Standard 1 or 2 response action (i.e., §335.8(c)(1) and (2) of this title (relating to Closure and Remediation), as amended) prior to May 1, 2000, and has submitted a final report within five years after that date may request that the response action be reviewed according to the regulations in effect at the time of initial notification. Persons will automatically qualify for this grandfathering provision if they have previously received a letter from the agency acknowledging receipt of the initial notification, or submit other forms of documentation by May 1, 2001, that proper and timely notification had been made.(2) The person who has submitted a remedial investigation report that fully complies with §335.553(b)(1) of this title (relating to Required Information), as amended, prior to May 1, 2001, may elect to either continue under those rules or to proceed under this chapter.(3) Any closure plans approved as part of a permit issued prior to May 1, 2000, but not implemented at the time of permit renewal are subject to review for compliance with this chapter as part of the permit renewal process.(4) The person may resubmit plans or reports that the person has revised voluntarily to conform with the requirements of this chapter, unless such resubmittal would result in noncompliance with a previously approved or imposed schedule of compliance.</content><note type="source"><p>Source Note: The provisions of this §350.2 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526; amended to be effective March 19, 2009, 34 TexReg 1866.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scA/s350.3"><num value="350.3">§350.3</num><heading>Process</heading><content>Once a release of COCs as defined by various programs has been identified and reported pursuant to rules or procedures established by one of the program areas identified in §350.2 of this title (relating to Applicability), this chapter controls the assessment and any action taken in response to that release. Upon initial notification to the appropriate program, the person will follow the general process as stated in paragraphs (1) - (5) of this section to demonstrate compliance with this chapter. (1) The person shall conduct an affected property assessment, classify groundwater, determine land use, and notify affected property owners in accordance with this subchapter and Subchapter C of this chapter (relating to Affected Property Assessment). (2) The person shall determine critical protective concentration levels in accordance with Subchapter D of this chapter (relating to Development of Protective Concentration Levels) for the appropriate environmental media. (3) The person shall develop a response action capable of attaining the response objectives under Remedy Standard A or B in accordance with Subchapter B of this chapter (relating to Remedy Standards). (4) The person shall develop and submit the reports required in Subchapter B of this chapter (relating to Remedy Standards) which contain the information specified for each report in Subchapter E of this chapter (relating to Reports). The sequencing of report submission is illustrated in the following figure. Attached Graphic(5) The person shall implement the response action, document conformance with the response objectives, and if required, file institutional controls, perform post-response action care, and establish financial assurance in accordance with Subchapter B of this chapter (relating to Remedy Standards).</content><note type="source"><p>Source Note: The provisions of this §350.3 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scA/s350.4"><num value="350.4">§350.4</num><heading>Definitions and Acronyms</heading><content>(a) Definitions. (1) Affected property--The entire area (i.e., on-site and off-site; including all environmental media) which contains releases of chemicals of concern at concentrations equal to or greater than the assessment level applicable for residential land use and groundwater classification. (2) Alternate point of exposure--A location other than the prescribed point of exposure where an individual human or population will be assumed to have a reasonable potential to come into contact with chemicals of concern based on property-specific considerations. (3) Assessment level--A critical protective concentration level for a chemical of concern used for affected property assessments where the human health protective concentration level is established under a Tier 1 evaluation as described in §350.75(b) of this title (relating to Tiered Human Health Protective Concentration Level Evaluation), except for the protective concentration level for the soil-to-groundwater exposure pathway which may be established under Tier 1, 2, or 3 as described in §350.75(i)(7) of this title, and ecological protective concentration levels which are developed, when necessary, under Tier 2 and/or 3 in accordance with §350.77(c) and/or (d), respectively, of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels). (4) Attenuation action level--The maximum concentration of a chemical of concern which can be present at an attenuation monitoring point and not exceed the applicable critical protective concentration level at the points of exposure over time. (5) Attenuation monitoring point--A location within the migration pathway of a chemical of concern which is used to verify that the critical PCL will not be exceeded at the points of exposure. (6) Background--A population of concentrations characterized from samples in an environmental medium containing a chemical of concern that is naturally occurring (i.e., the concentration is not due to a release of chemicals of concern from human activities) or anthropogenic (i.e., the presence of a chemical of concern in the environment which is due to human activities, but is not the result of site-specific use or release of waste or products, or industrial activity). Examples of anthropogenic sources include non-site specific sources such as lead from automobile emissions, arsenic from use of defoliants, and polynuclear aromatic hydrocarbons resulting from combustion of hydrocarbons. There are some commonalities regardless of the activity; specifically, the chemicals of concern have resulted from the use of a product in its intended manner and may be present at generally low levels over large areas (tens of square miles up to hundreds of square miles). Background is required for use in a statistical model appropriate for testing the hypothesis that the background area characterized by these kinds of models has the same concentrations of the chemical of concern as the affected property. The background area characterized is as "close" as possible to the affected property, in either space or time, as required. (7) Bedrock--The solid rock (i.e., consolidated, coherent, and relatively hard naturally formed material that cannot normally be excavated by manual methods alone) that underlies gravel, soil or other surficial material. (8) Bioaccumulative chemical of concern--A chemical of concern which has the tendency to accumulate in the tissues of an organism as a result of food consumption or dietary exposure and/or direct exposure (e.g., gills and epithelial tissue) to an environmental medium. (9) Carcinogen--A chemical of concern which causes an increased incidence of benign or malignant neoplasms, or substantially decreases the time to develop neoplasms, in animals or humans (a chemical of concern can act as both a carcinogen and a noncarcinogen). (10) Carcinogenic risk level--The probability of development of a neoplasm due to continuous lifetime exposure to a single carcinogen acting through an individual or combined exposure pathway. (11) Chemical of concern--Any chemical that has the potential to adversely affect ecological or human receptors due to its concentration, distribution, and mode of toxicity. Depending on the program area, chemicals of concern may include the following: solid waste, industrial solid waste, municipal solid waste, and hazardous waste as defined in the Texas Health and Safety Code, §361.003, as amended; hazardous constituents as listed in 40 Code of Federal Regulations Part 261, Appendix VIII, as amended; constituents on the groundwater monitoring list in 40 Code of Federal Regulations Part 264, Appendix IX, as amended; constituents as listed in 40 Code of Federal Regulations Part 258 Appendices I and II, as amended; pollutant as defined in Texas Water Code, §26.001, as amended; hazardous substance as defined in the Texas Health and Safety Code, §361.003, as amended, and Texas Water Code, §26.263, as amended; other substances as defined in Texas Water Code, §26.039(a), as amended; and daughter products of the aforementioned constituents. (12) Closure--The act of permanently taking a waste management unit or facility out of service. (13) Commercial/industrial land use--Any real property or portions of a property not used for human habitation or for other purposes with a similar potential for human exposure as defined for residential land. Examples of commercial/industrial land use include manufacturing; industrial research and development; utilities; commercial warehouse operations; lumber yards; retail gas stations; auto service stations; auto dealerships; equipment repair and service stations; professional offices (lawyers, architects, engineers, real estate, insurance, etc.); medical/dental offices and clinics (not including hospitals); financial institutions; office buildings; any retail business whose principal activity is the sale of food or merchandise; personal service establishments (health clubs, barber/beauty salons, mortuaries, photographic studios, etc.); churches (not including churches providing day care or school services other than during normal worship services); motels/hotels (not including those which allow residence); agricultural lands; and portions of government-owned land (local, state, or federal) that have commercial/industrial activities occurring. Land use activities consistent with this classification have the North American Industrial Classification System code numbers 11 - 21 inclusive; 22 except 22131; 23 - 56 inclusive; 61 except 61111, 61121, and 61131; 62 except 62211, 62221, 62231, 62311, 62322, 623311, 623312, 62399, and 62441; 71 except 71219; 72 except 721211 and 72131; 81 except 814; and 92 excluding 92214. (14) Community--An assemblage of plant and animal populations occupying the same habitat in which the various species interact via spatial and trophic relationships (e.g., a desert community or a pond community). (15) Compensatory ecological restoration--The creation of ecological services by or through restoration or the setting aside of, preferably, a comparable type of habitat as that which is impacted to offset residual ecological risk at an affected property. A net environmental benefits analysis or similar evaluation of ecological services may be used in the determination of the appropriate level of compensation. (16) Complete exposure pathway--An exposure pathway where a human or ecological receptor is exposed to a chemical of concern via an exposure route (e.g., incidental soil ingestion, inhalation of volatiles and particulates, consumption of prey, etc.). (17) Construction zone--The typical depth of construction within soil for an affected property considering the planned or historical installation of subsurface utilities, foundations, basements, or other such subsurface structures within the vicinity of the affected property not to extend below the top of bedrock. (18) Control--To apply physical or institutional controls to prevent exposure to chemicals of concern. Control measures must be combined with appropriate maintenance, monitoring, and any necessary further response action to be protective of human health and the environment. (19) Critical protective concentration level--The lowest protective concentration level for a chemical of concern within a source medium determined from all of the applicable human health exposure pathways as described in §350.71 of this title (relating to General Requirements), and when necessary, protective concentration levels for applicable ecological exposure pathways as required in §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels). (20) Cumulative carcinogenic risk--The aggregate risk due to exposure of an individual human receptor to multiple carcinogens originating from a single affected property and acting through an individual or combined exposure pathway. (21) Decontaminate--Application or occurrence of a permanent and irreversible treatment process to a waste or environmental medium so that the threat of release of chemicals of concern at concentrations above the critical protective concentration levels is eliminated. (22) Deed notice--An instrument filed in the real property records of the county where the affected property is located that is intended to provide to owners, prospective buyers and others notice and information regarding, but which does not, by itself, restrict use of the affected property. (23) De minimus --The description of an area of affected property comprised of one acre or less where the ecological risk is considered to be insignificant because of the small extent of contamination, the absence of protected species, the availability of similar unimpacted habitat nearby, and the lack of adjacent sensitive environmental areas. (24) Ecological benchmark--A state standard, federal guideline, or other exposure level for a chemical of concern in water, sediment, or soil that represents a protective threshold from adverse ecological effects. An ecological benchmark may also be a toxicity reference value that is established by the person based on scientific studies in the literature. (25) Ecological hazard index--The sum of individual ecological hazard quotients of COCs within a class of compounds that exert ecological effects which have the same toxicological mechanism or endpoint (e.g., PAHs, PCBs). (26) Ecological hazard quotient--The ratio of an exposure level to a chemical of concern to a toxicity value selected for the risk assessment for that chemical of concern (e.g., a no observed adverse effects level). (27) Ecological protective concentration level--The concentration of a chemical of concern at the point of exposure within an exposure medium (e.g., soil, sediment, groundwater, or surface water) which is determined in accordance with §350.77(c) or (d) of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels) to be protective for ecological receptors. These concentration levels are primarily intended to be protective for more mobile or wide-ranging ecological receptors and, where appropriate, benthic invertebrate communities within the waters in the state. These concentration levels are not intended to be directly protective of receptors with limited mobility or range (e.g., plants, soil invertebrates, and small rodents), particularly those residing within active areas of a facility, unless these receptors are threatened/endangered species or unless impacts to these receptors result in disruption of the ecosystem or other unacceptable consequences for the more mobile or wide-ranging receptors (e.g., impacts to an off-site grassland habitat eliminate rodents which causes a desirable owl population to leave the area). (28) Ecological risk assessment--The process that evaluates the likelihood that adverse ecological effects may occur or are occurring as a result of exposure to one or more stressors; however, as used in this context, only chemical stressors (i.e., COCs) are evaluated. (29) Ecological services--The physical, chemical, or biological functions of natural resources that one natural resource provides for another or to the public. Examples include provision of food, protection from predation, and nesting habitat, among others. (30) Ecological services analysis--A measurement of the potential change in ecological services based on considerations which may include, but are not limited to: the percent change in ecological services at the affected property that are attributable to COCs and/or potential response actions; the spatial extent of the affected property; and the recovery period. (31) Environmental medium--A material found in the natural environment such as soil (including non-waste fill materials), groundwater, air, surface water, and sediments, or a mixture of such materials with liquids, sludges, gases, or solids, including hazardous waste which is inseparable by simple mechanical removal processes, and is made up primarily of natural environmental material. (32) Exclusion criteria--Those conditions at an affected property which preclude the need to establish a protective concentration level for an ecological exposure pathway because the exposure pathway between the chemical of concern and the ecological receptors is not complete or is insignificant. (33) Exposure area--The smallest property surface area within which it is believed that exposure to chemicals of concern in soil or air by a receptor would be limited under reasonably anticipated current or future use scenarios. (34) Exposure medium--The environmental medium or biologic tissue in which or by which exposure to chemicals of concern by ecological or human receptors occurs. (35) Exposure pathway--The course that a chemical of concern takes from a source area to ecological or human receptors and includes a source area, a point of exposure, and an exposure route (e.g., ingestion), as well as a transport mechanism if the point of exposure is different from the source area. (36) Facility--The installation associated with the affected property where the release of chemicals of concern occurred. (37) Facility Operations Area--One or more areas (lateral and vertical extent) of an operational chemical or petroleum manufacturing plant with North American Industrial Classification System code numbers 325 or 324, respectively, with a hazardous waste permit or commission corrective action order within which response actions to multiple releases of COCs can be consolidated for purposes of compliance with this chapter on an area-wide basis by using interim or permanent response actions. The lateral extent of the facility operations area is limited to the contiguous area actively used for the development, manufacture, process, transfer, storage, and management of chemical or refinery products, hazardous materials, substances and wastes subject to Resource Conservation and Recovery Act regulation, and includes ancillary components such as, but not necessarily limited to, power plants and cooling units. (38) Feeding guilds--Groups of ecological receptors used to represent the variety of species that may be exposed to chemicals of concern at the affected property. The feeding guilds are generally based on function within an ecosystem, potential for exposure, and physiological and taxonomic similarity. Examples include carnivorous mammals, carnivorous birds, and piscivorous birds. (39) Functioning cap--A low permeability layer or other approved cover meeting its design specifications to minimize water infiltration and chemical of concern migration, and prevent ecological or human receptor exposure to chemicals of concern, and whose design requirements are routinely maintained. (40) Groundwater-bearing unit--A saturated geologic formation, group of formations, or part of a formation which has a hydraulic conductivity equal to or greater than 1 x 10-5 centimeters/second. (41) Groundwater production zone--The groundwater-bearing unit(s) which contributes water to a well. For example, if a well penetrates four distinct groundwater-bearing units isolated by competent aquitards, but the well is screened in only two of the units and has a competent annular seal to isolate the other two units, then the groundwater production zone consists of only the two units that contribute water to the well. (42) Groundwater protective concentration level exceedence zone--A protective concentration level exceedence zone within a groundwater-bearing unit. (43) Hazard index--The sum of two or more hazard quotients for multiple noncarcinogens originating from a single affected property. (44) Hazard quotient--The ratio of the level of exposure of a noncarcinogen acting through an individual or combined exposure pathway over a specified time period to a reference dose for the noncarcinogen derived for a similar exposure period. (45) Implementation Procedures--The most current version of Procedures to Implement the Texas Surface Water Quality Standards, as amended. (46) Innocent Owner or Operator--Those persons so designated in accordance with Texas Health and Safety Code, Chapter 361, Subchapter V, Immunity From Liability of Innocent Owner or Operator, as amended. (47) Institutional control--A legal instrument placed in the property records in the form of a deed notice, Voluntary Cleanup Program Certificate of Completion (VCP Certificate of Completion), or restrictive covenant which indicates the limitations on or the conditions governing use of the property which ensures protection of human health and the environment or equivalent zoning and governmental ordinances. (48) Judgmental sample--An investigative sample of an environmental medium which is purposefully located based upon property-specific information. (49) Laboratory Control Sample--A spiked blank sample analyzed by the laboratory to assess laboratory ability to successfully recover chemicals of concern from a control matrix. (50) Landscaped area--An area of ornamental, introduced, commercially installed, or manicured vegetation which is routinely maintained. (51) Long-term effectiveness--The ability of a remedy to maintain the required level of protection of human health and the environment over time. (52) Lower explosive limit--The lowest concentration of a vapor or gas in air that will produce a flash of fire when an ignition source (heat, arc, or flame) is present. (53) Method detection limit--The minimum concentration of a substance that can be measured and reported with 99% confidence that the analyte concentration is greater than zero and is determined for each COC from the analysis of a sample of a given matrix type containing the COC. (54) Method quantitation limit--The lowest non-zero concentration standard in the laboratory's initial calibration curve and is based on the final volume of extract (or sample) used by the laboratory. (55) Monitored natural attenuation--The use of natural attenuation within the context of a carefully controlled and monitored response action to achieve protective concentration levels at the point of exposure. (56) Natural attenuation--The reduction in mass or concentration of a chemical of concern over time or distance from the source of a chemical of concern due to naturally occurring physical, chemical, and biological processes, such as: biodegradation, dispersion, dilution, adsorption, and volatilization. (57) Natural attenuation factor--The numerical value which represents the natural attenuation (i.e., reduction) in chemical of concern concentrations during transport from the source area to the point of exposure. The natural attenuation factor is the concentration at the source area divided by the concentration at the point of exposure. The natural attenuation factor is always greater than or equal to one for the purposes of this rule. (58) Natural Resource Trustees--The federal agencies as designated by the President and the state agencies as designated by the Governor pursuant to the National Contingency Plan, Oil Pollution Act, and CERCLA §107(f)(2)(A) and (B) to act on behalf of the public as trustees of natural resources (e.g., water, air, land, wildlife). The Trustees include TCEQ, Texas Parks and Wildlife Department, Texas General Land Office, National Oceanic and Atmospheric Administration, and the Department of the Interior. (59) Off-site property (off-site)--All environmental media which is outside of the legal boundaries of the on-site property. (60) On-site property (on-site)--All environmental media within the legal boundaries of a property owned or leased by a person who has filed a self-implementation notice or a response action plan for that property or who has become subject to such action through one of the agency's program areas for that property. (61) Permanence/permanent/permanently--The property of a response action which is capable of enduring indefinitely without posing the threat of any future release of chemicals of concern above the critical protective concentration levels established for the property. (62) Person--An individual, corporation, organization, government or governmental subdivision or agency, business trust, partnership, association, or any other legal entity. (63) Physical barrier--Any structure or system, natural or manmade, that prevents exposure or prevents migration of chemicals of concern to the points of exposure. (64) Physical control--A structure or hydraulic containment action which prevents exposure to and/or migration of chemicals of concern when combined with appropriate post-response action care to protect human health and the environment. Examples of physical controls are caps, slurry walls, sheet piling, hydraulic containment wells, and interceptor trenches, but typically not fences. (65) Plume management zone--The area of the groundwater protective concentration level exceedence zone at the time of response action plan submittal, plus any additional area allowed in accordance with §350.33(f)(4) of this title (relating to Remedy Standard B). (66) Point of exposure--The location within an environmental medium where a receptor will be assumed to have a reasonable potential to come into contact with chemicals of concern. The point of exposure may be a discrete point, plane, or an area within or beyond some location. (67) Prescribed points of exposure--The prescribed on-site and off-site locations within an environmental medium where an individual human or population will be assumed to come into contact with chemicals of concern from an affected property. (68) Protective concentration level--The concentration of a chemical of concern which can remain within the source medium and not result in levels which exceed the applicable human health risk-based exposure limit or ecological protective concentration level at the point of exposure for that exposure pathway. (69) Protective concentration level exceedence zone--The lateral and vertical extent of all wastes and environmental media which contain chemicals of concern at concentrations greater than the critical protective concentration level determined for that medium, as well as, hazardous waste. A protective concentration level exceedence zone can be thought of as the volume of waste and environmental media which must be removed, decontaminated, and/or controlled in some fashion to adequately protect human health and the environment. (70) Reasonably anticipated to be completed exposure pathway--A situation with a credible chance of occurrence in which an ecological or human receptor may become exposed to a chemical of concern (i.e., complete exposure pathway) without consideration of circumstances which are extreme or improbable based on property characteristics. (71) Release--Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, with the exception of: (A) A release that results in an exposure to a person solely within a workplace, concerning a claim that the person may assert against the person's employer; (B) An emission from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine; (C) A release of source, by-product, or special nuclear material from a nuclear incident, as those terms are defined by the Atomic Energy Act of 1954, as amended (42 U.S.C. §2011 et seq.), if the release is subject to requirements concerning financial protection established by the Nuclear Regulatory Commission under §170 of that Act; (D) For the purposes of the environmental response law §104, as amended, or other response action, a release of source, by-product, or special nuclear material from a processing site designated under §102(a)(1) or §302(a) of the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. §7912 and §7942), as amended; and (E) The normal application of fertilizer. (72) Remediation--The act of eliminating or reducing the concentration of chemicals of concern in environmental media. (73) Remove--To take waste or environmental media away from the affected property to another location for storage, processing or disposal in accordance with all applicable requirements. Removal is an irreversible process that results in permanent risk reduction at an affected property. (74) Residential land use--Property used for dwellings such as single family houses and multi-family apartments, children's homes, nursing homes, and residential portions of government-owned lands (local, state, or federal). Because of the similarity of exposure potential and the sensitive nature of the potentially exposed population, day care facilities, educational facilities, hospitals, and parks (local, state or federal) shall also be considered residential. (75) Response action--Any activity taken to comply with these regulations to remove, decontaminate and/or control (i.e., physical controls and institutional controls) chemicals of concern in excess of critical PCLs in environmental media, including actions taken in response to releases to environmental media from a waste management unit before, during, or after closure. (76) Restrictive covenant--An instrument filed in the real property records of the county where the affected property is located which ensures that the restrictions will be legally enforceable by the executive director when the person owning the property is an innocent landowner. (77) Risk-based exposure limit--The concentration of a chemical of concern at the point of exposure within an exposure medium (e.g., soil, sediment, vegetables, groundwater, surface water, or air) which is protective for human health. Risk-based exposure limits are the fundamental risk-based values which are initially determined and used in the development of protective concentration levels. Risk-based exposure limits do not account for cumulative effects from exposure to multiple chemicals of concern, combined exposure pathways, and cross-media or lateral transport of chemicals of concern within environmental media. (78) Sample detection limit--The method detection limit, as defined in this section, adjusted to reflect sample-specific actions, such as dilution or use of smaller aliquot sizes than prescribed in the analytical method, and to take into account sample characteristics, sample preparation, and analytical adjustments. The term, as used in this rule, is analogous to the sample-specific detection limit. (79) Sediment--Non-suspended particulate material lying below surface waters such as bays, the ocean, rivers, streams, lakes, ponds, or other similar surface water body (including intermittent streams). Dredged sediments which have been removed from below surface water bodies and placed on land shall be considered soils. (80) Selected ecological receptors--Species that are to be carried through the ecological risk assessment as representatives of the different feeding guilds and communities that are being evaluated. These species may not actually occur at the affected property, but may be used to represent those within the feeding guild or community that may feed on the affected property. (81) Sensitive environmental areas--Areas that provide unique and often protected habitat for wildlife species. These areas are typically used during critical life stages such as breeding, hatching, rearing of young, and overwintering. Examples include critical habitat for threatened and endangered species, wilderness areas, parks, and wildlife refuges. (82) Soil protective concentration level exceedence zone--A protective concentration level exceedence zone within the surface soil or subsurface soil which may extend down to a groundwater-bearing unit(s). These protective concentration level exceedence zones may also be present below or between groundwater-bearing units. (83) Source area--The volume of a chemical of concern in environmental media (e.g., soil or groundwater) which is leaching, dissolving or emitting chemicals of concern. Of primary regulatory concern are the source areas that are leaching, dissolving or emitting chemicals of concern at unprotective concentrations under natural conditions, and not in consideration of any physical controls (e.g., slurry walls, caps), that will result in protective concentrations being exceeded at the point of exposure. The source area need not be the horizontal and vertical extent of the protective concentration level exceedence zone when cross-media or lateral chemical of concern transport is required for a point of exposure to be reached. Generally, a source area is located in the vicinity of or below primary release sources (e.g., tanks, pipelines, drums, lagoons, landfills, etc.). (84) Source medium--An environmental medium containing chemicals of concern which must be removed, decontaminated and/or controlled in order to protect human health and the environment. The source medium may be the exposure medium for some exposure pathways. (85) Stressor--Any physical, chemical, or biological entity that can induce an adverse response; however, as used in this context, only chemical entities apply. (86) Subsurface soil--For human health exposure pathways, the portion of the soil zone between the base of surface soil and the top of the groundwater-bearing unit(s). For ecological exposure pathways, the portion of the soil zone between 0.5 feet and 5 feet in depth. (87) Surface cover--A layer of artificially placed utility material (e.g., shell, gravel). (88) Surface soil--For human health exposure pathways, the soil zone extending from ground surface to 15 feet in depth for residential land use and from ground surface to 5 feet in depth for commercial/industrial land use; or to the top of the uppermost groundwater-bearing unit or bedrock, whichever is less in depth. For ecological exposure pathways, the soil zone extending from ground surface to 0.5 feet in depth. (89) Surface water--Any water meeting the definition of surface water in the state as defined in §307.3 of this title (relating to Definitions and Abbreviations), as amended. (90) Toxicity reference value--An exposure level from a valid scientific study that represents a conservative threshold for adverse ecological effects. (91) Waste control unit--A municipal or industrial solid waste landfill, including those Resource Conservation and Recovery Act regulated units closed as landfills, with a liner system (i.e., synthetic or clay) and an engineered cap, that have been closed pursuant to an approved closure plan, previous regulations, or will be implemented pursuant to an approved response action plan. (b) Acronyms. (1) APAR--Affected property assessment report; (2) COC--Chemical of concern; (3) FOA--Facility Operations Area; (4) Kd --Soil-water partition coefficient; (5) Koc --Octanol-water partition coefficient; (6) LOAEL--Lowest observed adverse effect level; (7) MCL--Maximum contaminant level; (8) NAPLs--Nonaqueous phase liquids; (9) NOAEL--No observed adverse effect level; (10) PCL--Protective concentration level; (11) PCLE zone--Protective concentration level exceedence zone; (12) POE--Point of exposure; (13) PRACR--Post-response action care report; (14) RACR--Response action completion report; (15) RAER--Response action effectiveness report; (16) RAP--Response action plan; (17) RBEL--Risk-based exposure limit; (18) SIN--Self-implementation notice; (19) TAC--Texas Administrative Code; (20) TCEQ--Texas Commission on Environmental Quality; (21) TPDES--Texas Pollutant Discharge Elimination System; and (22) U.S. EPA--United States Environmental Protection Agency. (c) Risk-based exposure limit nomenclature. A nomenclature is used in Subchapter D of this chapter (relating to the Development of Protective Concentration Levels) to refer to specific RBELs. The RBEL nomenclature reflects the exposure medium and the exposure route. The exposure medium appears first in superscript text, followed by RBEL in regular text and lastly the exposure route in subscript text. For example Soil RBELIng is a RBEL where soil is the exposure medium and ingestion is the exposure route. (1) Air RBEL Inh --air inhalation RBEL; (2) Soil RBEL Derm --dermal contact with soil RBEL; (3) Soil RBEL Ing --ingestion of soil RBEL; (4) GW RBEL Ing --ingestion of groundwater RBEL; (5) GW RBEL Class 3 --class 3 groundwater RBEL; (6) SW RBEL--surface water RBEL; (7) AbgVeg RBEL Ing --ingestion of aboveground vegetables RBEL; and (8) BgVeg RBEL Ing --ingestion of below-ground vegetables RBEL. (d) Protective concentration level nomenclature. A nomenclature is used in Subchapter D of this chapter (relating to the Development of Protective Concentration Levels) to refer to specific PCLs. The PCL nomenclature reflects the exposure medium, source medium and the exposure route. The exposure medium appears first in superscript text, followed by the source medium in regular text and lastly the exposure route in subscript text. For example, GW GWIng is a PCL where groundwater is the source medium (GW), groundwater is the exposure medium ( GW ), and ingestion is the exposure route (Ing ). Cross-media transfer is indicated when exposure occurs in a different medium than the source medium. For example, Air SoilInh-V is a PCL where soil is the source medium and air is the exposure medium. (1) GW GW Ing --PCL for groundwater ingestion; (2) GW GW Class 3 --PCL for class 3 groundwater; (3) Air GW Inh-V --PCL for inhalation of volatiles from groundwater; (4) SW GW--PCL for groundwater discharge to surface water; (5) Tot Soil Comb --surface soil PCL for combined soil ingestion, dermal contact, inhalation of volatiles and particulates, and for residential land use, ingestion of aboveground and below-ground vegetables; (6) Air Soil Inh-VP --PCL for inhalation of volatiles and particulates from surface soil; (7) Soil Soil Derm --PCL for dermal contact with surface soil; (8) Soil Soil Ing --PCL for ingestion of surface soil; (9) Veg Soil Ing-Inorg --surface soil PCL for ingestion of inorganic COCs in vegetables; (10) Veg Soil Ing-Org --surface soil PCL for ingestion of organic COCs in vegetables; (11) GW Soil--PCL for surface and subsurface soil to protect groundwater; (12) Air Soil Inh-V --PCL for inhalation of volatiles from subsurface soil; (13) Air Air Inh --air PCL for inhalation; and (14) SW SW--surface water PCL.</content><note type="source"><p>Source Note: The provisions of this §350.4 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526; amended to be effective March 19, 2009, 34 TexReg 1866.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scA/s350.5"><num value="350.5">§350.5</num><heading>Severability</heading><content>The provisions of this chapter are intended to be severable and are deemed severable and, should any provision of this chapter be rendered unenforceable by a court of competent jurisdiction or other appropriate authority, the remaining provisions shall remain valid and enforceable.</content><note type="source"><p>Source Note: The provisions of this §350.5 adopted to be effective September 23, 1999, 24 TexReg 7436.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c350/scB"><num value="B">SUBCHAPTER B</num><heading>REMEDY STANDARDS</heading><section identifier="/us/state/tx/tac/t30/p1/c350/scB/s350.31"><num value="350.31">§350.31</num><heading>General Requirements for Remedy Standards</heading><content>(a) The person shall ensure the affected property is rendered protective of human health and the environment and shall use Remedy Standard A or B to satisfy cleanup responsibilities at affected properties subject to these rules as specified in §350.2 of this title (relating to Applicability) unless an alternative approach is required by another commission regulation, permit, or order.(b) For Remedy Standards A and B, in order for a treatment process, including monitored natural attenuation, to achieve decontamination rather than being a physical control measure, the person must demonstrate that the treatment process permanently and irreversibly destroys or extracts COCs in a waste or environmental medium to concentration levels below the critical PCLs and must further demonstrate that any residue remaining after treatment will not pose a threat of a future release of COCs into environmental media at concentration levels greater than the critical PCLs. The executive director shall initially presume that stabilization, solidification, and fixation processes are physical control measures rather than decontamination. The person may rebut this initial presumption by demonstrating that a stabilization, solidification, or fixation process can achieve the performance requirements for a decontamination action.(c) The person shall sufficiently address affected properties such that surface and subsurface structures do not contain explosive atmospheres originating from the released COCs, and areas of routine construction are adequately protected. The person should consider the proximity of volatile NAPLs and high concentrations of volatile COCs to utility conduits, basements, storm or sanitary sewers, and other surface and subsurface structures which may be subject to vapor accumulations. The person shall conduct monitoring as appropriate and take appropriate actions based on those findings.(d) The person shall notify the executive director and the agency's office in the region where the affected property is located in writing at least 10 days in advance of performing confirmation sampling to demonstrate that a response action is complete and a remedy standard has been attained.(e) Unless a response action completion report (RACR) has been approved or is pending review by the executive director, the person shall submit a response action effectiveness report (RAER) to the executive director every three years following submittal of the self-implementation notice (SIN) for Remedy Standard A or the date of approval of the response action plan (RAP) for Remedy Standard B by the executive director to document that sufficient progress is being made to achieve the remedy. The RAER shall be accompanied by an affected property assessment report (APAR) unless an APAR has previously been submitted. The executive director may require a more frequent reporting period. If insufficient progress is being made, the executive director may require the person to evaluate an alternative response action and/or to perform an alternative response action.(f) Within 90 days of completing a Remedy Standard A response action, the person shall submit a RACR for review and approval by the executive director. The RACR shall be accompanied by an APAR unless an APAR has been previously submitted.(g) The person attaining Remedy Standard A for commercial/industrial land use or Remedy Standard B for residential or commercial/industrial land use shall provide proof of compliance with the institutional control requirements in §350.111(b),(b)(2), (3), (5), or (6) of this title (relating to Use of Institutional Controls), as applicable, within 90 days of the approval of the RACR by the executive director.(h) To inform others of ongoing long-term response actions, the executive director may require the person to provide proof of compliance with the institutional control requirements in §350.111(b),(b)(1) of this title (relating to Use of Institutional Controls) within 90 days of a determination made under paragraphs (1) or (2) of this subsection.(1) The response action is predicted in the SIN, RAP, or RAER to take in excess of 15 years from the date of submittal of the SIN or the date of executive director approval of the RAP to achieve the requirements of subsection (a) of this section at the affected property, or(2) The response action has not been completed within 15 years of submittal of the SIN or the date of executive director approval of the RAP, and the executive director determines that:(A) the progress of the response action is unsatisfactory; or(B) performance monitoring data indicates that the concentrations of COCs will not be reduced to the critical residential PCLs within an additional time frame, which is reasonable given the particular circumstances of an affected property.(i) Until such time as an institutional control is filed within the real property records of the county for an affected property as required in subsection (g) of this section, or until the executive director approves the RACR for affected property which is not subject to subsection (g) of this section, the on- site and/or off-site owner(s) of affected property shall, with regards to the current environmental conditions of the property and prior to transfer of the property or signing of lease agreements, inform any prospective purchaser or tenant of the property of the existing or planned response actions and of any current or future potential limitations on the use of the property.(j) The person shall also perform any more stringent or additional response actions which are required by the statute or regulations governing the program areas covered by this chapter as specified in §350.2 of this title (relating to Applicability).</content><note type="source"><p>Source Note: The provisions of this §350.31 adopted to be effective September 23, 1999, 24 TexReg 7436.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scB/s350.32"><num value="350.32">§350.32</num><heading>Remedy Standard A</heading><content>(a) To attain Remedy Standard A, the person shall within a reasonable time frame given the particular circumstances of an affected property:(1) Remove any listed hazardous waste as defined in 40 Code of Federal Regulations Part 261, Subpart D, as amended, which is contained within a waste management facility component (e.g., tank, surface impoundment, etc.) or which is separable from environmental media using simple mechanical removal processes;(2) Remove and/or decontaminate any waste or environmental media which is characteristically hazardous due to ignitability, corrosivity, reactivity, or toxicity characteristic as defined in 40 Code of Federal Regulations Part 261, Subpart C, as amended;(3) Remove and/or decontaminate the surface soil, subsurface soil, and groundwater PCLE zones, other environmental media, and non-hazardous waste to achieve COC concentration levels below the residential or commercial/industrial critical PCLs, as applicable; and(4) Demonstrate the affected property is protective for ecological receptors.(b) Response actions under Remedy Standard A must result in permanent risk reduction at an affected property.(1) The person shall not use physical controls under Remedy Standard A.(2) The person shall remediate the affected property such that the concentration of COCs in surface soil, subsurface soil, groundwater, and other environmental media do not exceed the applicable critical PCLs.(3) Remedial alternatives, including the use of monitored natural attenuation as a decontamination remedy, must be capable of achieving the Remedy Standard A objectives within a reasonable time frame, given the particular circumstances at the affected property; and must be appropriate considering the hydrogeologic characteristics of the affected property, COC characteristics, and the potential for unprotective exposure conditions to continue or result during the remedial period. The executive director may require a demonstration of the appropriateness of a remedy in the context of the above-mentioned criteria for any remedy, regardless of the status of self-implementation as allowed in subsection (d) of this section. If the executive director requires such a demonstration, the person is not required to await executive director approval to proceed with self-implementation; however, if the executive director determines that the self-implementing response action is inappropriate based on these criteria, then the executive director shall require appropriate response actions to be taken.(c) The person shall determine the PCLs for Remedy Standard A using exposure pathways where the human or ecological receptor comes into contact with the COCs directly within, above, or below a source medium. Lateral transport considerations which place the POE at a location outside of the source area cannot be used to determine PCLs for Remedy Standard A, with the exception that, when necessary, the person shall perform lateral transport calculations to determine whether PCLs calculated based upon on-site commercial/industrial workers are protective of off-site residents.(d) Remedy Standard A is a self-implementing standard unless the person desires to modify exposure factors under §350.74(j) of this title (relating to Development of Risk-Based Exposure Limits) which requires prior executive director approval, or unless the person chooses not to self-implement. The person shall submit a SIN to the executive director and the agency's office in the region where the affected property is located at least 10 days prior to conducting a response action under this remedy standard. The person may then perform the response action without receiving the executive director's approval, unless such prior approval is required by another agency rule, order, or permit. If the person chooses not to self-implement, then the person shall submit a RAP for review and approval by the executive director. The person shall include an APAR with the RAP unless an APAR has previously been submitted.(e) The person cannot use a demonstration of technical impracticability when responding to soil and/or groundwater PCLE zones, or other affected environmental media under Remedy Standard A.(f) The person shall prevent COCs at concentrations above the critical groundwater PCLs from migrating beyond the existing boundary of the groundwater PCLE zone.(g) There are no post-response action care or financial assurance requirements for Remedy Standard A response actions, provided the person adequately documents attainment of the response objectives provided in subsection (a) of this section. When considered warranted, the executive director may require the person to monitor environmental media to verify that the models used to determine PCLs established under Tiers 2 or 3 as provided in §350.75 of this title (relating to Tiered Human Health Protective Concentration Level Evaluation) yield protective PCLs.</content><note type="source"><p>Source Note: The provisions of this §350.32 adopted to be effective September 23, 1999, 24 TexReg 7436.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scB/s350.33"><num value="350.33">§350.33</num><heading>Remedy Standard B</heading><content>(a) To attain Remedy Standard B, the person shall: (1) Remove, decontaminate, and/or control the surface soil, subsurface soil, and groundwater human health PCLE zones, other environmental media, and hazardous and non-hazardous waste in accordance with the provisions of this section such that humans will not be exposed to concentrations of COCs in the exposure media in excess of the residential or commercial/industrial critical human health PCLs, as applicable, at the prescribed, or any approved alternate POEs established for environmental media in accordance with §350.37 of this title (relating to Human Health Points of Exposure); (2) Ensure that leachate from the surface and subsurface soil PCLE zones does not increase the concentration of COCs in class 2 groundwater above the measured concentration at the time of RAP submittal in circumstances when an alternate POE to class 2 groundwater is authorized in response to subsection (f)(4) of this section; and (3) Use either subparagraph (A) or (B) of this paragraph to respond to an affected property when either the initial concentrations of COCs within environmental media exceed only the ecological PCLs (i.e., there is no exceedence of human health PCLs) or when there will be residual concentrations of COCs above the ecological PCLs following completion of a human health response action. When human health PCLs are exceeded within environmental media at an affected property, a person must perform a response action pursuant to paragraph (1) of this subsection to address these risks to human health unless the person adequately demonstrates that the threats to human health are minimal and that a human health-based response action would have a significant and highly disproportionate effect on ecological receptors. (A) The person shall remove, decontaminate, and/or control the environmental media, and hazardous and non-hazardous waste in accordance with the provisions of this section such that ecological receptors will not be exposed to concentrations of COCs in the exposure medium in excess of the ecological PCLs at the POEs determined in accordance with §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels). (B) When, after consultation with the Natural Resource Trustees, it is determined appropriate by the executive director, the person may use the results of a Tier 2 or 3 ecological risk assessment performed in accordance with §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels) and other appropriate information or data to conduct an ecological services analysis of the affected property. However, an ecological services analysis must be conducted whenever concentrations of COCs which exceed ecological PCLs are proposed to be left in place with the potential for continuing exposure. The ecological services analysis must, at a minimum, include an evaluation of the effects of reasonable and feasible remediation alternatives, including complete removal/decontamination to PCLs and a control measure to prevent ecological exposure to COCs in excess of ecological PCLs, with respect to present and predicted losses of ecological services; and clear justification for leaving COCs in place above ecological PCLs. Furthermore, the person shall also ensure, where appropriate, that the ecological services analysis includes a plan to provide compensatory ecological restoration which may also be combined with some type of active response action (e.g., hot spot removal) or passive response action (e.g., natural attenuation) for the affected property. The ecological services produced by the restoration activity must exceed the future ecological service decreases potentially associated with the continued exposure to COCs and/or any selected response action at the affected property. The person must conduct the compensatory ecological restoration and other activities associated with the ecological services analysis with the approval of and in cooperation with the Natural Resource Trustees. The executive director may develop guidance which further describes the ecological services analysis process. (b) As defined further by the surface and subsurface soil response objectives in subsection (e) of this section and the groundwater response objectives in subsection (f) of this section, the person performing a response action to attain Remedy Standard B may use removal and/or decontamination, removal and/or decontamination with controls, or controls only, with the exception of response actions for Class 1 groundwater PCLE zones which must be removed and/or decontaminated to the critical groundwater PCL for each COC. (1) The person may use both physical and institutional controls. (2) For all actions to attain Remedy Standard B, the person shall demonstrate that the response actions which they propose to use will attain the requirements of subsection (a) of this section within a reasonable time frame given the particular circumstances of an affected property. Remedial alternatives, including the use of monitored natural attenuation as a decontamination or control remedy, must be appropriate considering the hydrogeologic characteristics of the affected property, COC characteristics, and the potential for unprotective exposure conditions to continue or result during the remedial period. (c) PCLs for Remedy Standard B are determined through consideration of on-site and off-site POEs, or alternate POEs. (d) Remedy Standard B is not a self-implementing standard. The person must receive the executive director's written approval of a RAP and an APAR, either submitted at the same time as the RAP or previously, before commencing response actions to attain the standard, but this does not preclude the person from taking interim measures. (e) The following are the Remedy Standard B surface and subsurface soil response objectives and associated requirements for response actions performed in accordance with subsections (a)(1) - (2), and (a)(3)(A) of this section to address human health and/or ecological risks at an affected property. A person may choose to attain the surface and subsurface soil response objectives for an affected property either by conducting a response action which makes use of removal and/or decontamination or by conducting a response action which makes use of removal and/or decontamination with controls or controls only. (1) When all surface and subsurface soil response objectives specified in subsection (a) of this section are met through removal and/or decontamination, then the person shall fulfill any post-response action care obligations described in the approved RAP, but shall not be required to provide financial assurance for the soils. (2) When a person chooses to attain the surface and subsurface soil response objectives specified in subsection (a) of this section for an affected property by conducting a response action which uses removal and/or decontamination with controls or controls only, then the person must also comply with the requirements of this paragraph. (A) The person shall demonstrate that any physical control or combination of measures proposed to be used (e.g., waste control unit, cap, slurry wall, treatment that does not attain decontamination; or a landfill) will reliably contain COCs within and/or derived from the surface and subsurface soil PCLE zone materials over time. (B) The person shall fulfill the post-response action care obligations described in the approved RAP. (C) The person shall provide financial assurance in accordance with subsections (l) and (m) of this section. (f) The following are the Remedy Standard B groundwater response objectives and associated requirements for response actions performed in accordance with subsections (a)(1) - (2), and (a)(3)(A) of this section to address human health or environmental risk at an affected property. The person shall achieve the Remedy Standard B groundwater PCLE zone response objectives stated in paragraph (1) of this subsection, unless the person demonstrates that an affected property meets the qualifying criteria for one, or a combination, of the modified groundwater response approaches described in paragraphs (2) - (4) of this subsection. A person who satisfactorily demonstrates technical impracticability as described in paragraph (3) of this subsection, may use technical impracticability to establish a plume management zone as described in paragraph (4) of this subsection for instances when a plume management zone would not otherwise be authorized by the executive director, except that the person shall not allow the groundwater plume management zone to expand beyond the existing boundary of the groundwater PCLE zone. A person who uses one, or a combination, of the modified groundwater response approaches shall fulfill the post-response action care obligations described in the approved RAP. A person who uses one, or a combination, of the modified groundwater response approaches which utilizes a physical control(s) shall provide financial assurance as specified in subsections (l) and (m) of this section. (1) General groundwater response objectives. For all groundwater classes, the person must: (A) use either an active restoration approach or monitored natural attenuation (if appropriate considering the hydrogeologic characteristics of the affected property, chemical-specific data for the COCs, and whether the anticipated time frame to achieve the critical groundwater PCLs is reasonable) to reduce the concentration of COCs to the critical groundwater PCLs throughout the groundwater PCLE zone; (B) while achieving subparagraph (A) of this paragraph, prevent COCs at concentrations above the critical groundwater PCLs from migrating beyond the existing boundary of the groundwater PCLE zone; (C) prevent COCs from migrating to air at concentration levels above the PCLs for air (i.e., Air Air Inh ); (D) prevent COCs from migrating to surface water at concentration levels above the PCLs for groundwater discharges to surface water (i.e., SW GW); and (E) prevent human and ecological receptor exposure to the groundwater PCLE zone. (2) Waste control unit. When the approved RAP includes an existing or planned waste control unit which overlies an existing groundwater PCLE zone, the person may, with the executive director's approval, exclude the groundwater throughout that portion of the groundwater PCLE zone directly underlying the waste control unit from the requirement to meet the groundwater response objectives provided in paragraph (1) of this subsection. To use this approach, the person shall comply with the institutional control requirements in §350.31(g) of this title (relating to General Requirements for Remedy Standards), with the exception that proof of compliance with the institutional control requirements must be submitted to the executive director within 120 days of approval of the RAP, which provides notice of the existence and location of the groundwater PCLE zone beneath the waste control unit and which prevents usage of and exposure to this groundwater until such time as the COCs may reduce to the critical groundwater PCLs. Beyond the perimeter of the waste control unit, the groundwater response objectives must be met. (3) Technical impracticability. A technical impracticability demonstration can be used for all three classes of groundwater under Remedy Standard B. To use this approach, the person must: (A) demonstrate in accordance with the United States Environmental Protection Agency (EPA) "Guidance for Evaluating the Technical Impracticability of Ground-Water Restoration" (Office of Solid Waste and Emergency Response Directive 9234.2-25 or subsequent version), as amended, or other method approved by the executive director, that it is not feasible from a physical perspective using currently available remediation technologies due either to hydrogeologic or chemical-specific factors to reduce the concentration of COCs throughout all or a portion of the groundwater PCLE zone to the applicable critical groundwater PCLs within a reasonable time frame; (B) use removal or decontamination actions to reduce the concentrations of COCs to the critical groundwater PCLs for any portion of the groundwater PCLE zone for which it is technically practicable; (C) prevent migration of COCs from that portion of the groundwater PCLE zone which satisfies the technical impracticability demonstration in subparagraph (A) of this paragraph; (D) achieve the performance criteria in subsection (f)(4)(E) of this section for NAPLs; (E) establish a plume management zone for the area where COCs cannot be removed so as to attain the critical PCLs, and prevent COCs at concentrations above the critical groundwater PCLs from spreading beyond the existing boundary of the groundwater PCLE zone; and (F) comply with the institutional control requirements in §350.31(g) of this title (relating to General Requirements for Remedy Standards), with the exception that proof of compliance with the institutional control requirements must be submitted to the executive director within 120 days of the approval of the RAP, which provides notice of the existence and location of the groundwater PCLE zone and which prevents usage of and exposure to groundwater from this zone until such time as the COCs may reduce to the critical groundwater PCLs. (4) Plume management zones. With the approval of the executive director, the person may use a plume management zone under Remedy Standard B for class 2 and 3 groundwater-bearing units which presently contain a groundwater PCLE zone. (A) To use a plume management zone, the person must demonstrate that the COCs will not pose a substantial present or potential hazard to human health or the environment as long as the attenuation action levels are not exceeded at the respective attenuation monitoring points based upon a consideration of the following factors: (i) potentially adverse effects on groundwater quality, considering: (I) the physical and chemical characteristics of the COC, including its potential for migration; (II) the hydrogeological characteristics of the affected property and surrounding land; (III) the quantity of groundwater and the direction of groundwater flow; (IV) the proximity and withdrawal rates of groundwater users; (V) the current and future uses of groundwater in the area; (VI) the existing quality of groundwater, including other sources of COCs and their cumulative impact on the groundwater quality; (VII) the potential for health risks caused by human exposure to COCs; (VIII) the potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to COCs; (IX) the persistence and permanence of the potentially adverse effects; and (ii) potentially adverse effects on hydraulically-connected surface water quality, considering: (I) the volume and physical and chemical characteristics of the COCs present at the affected property; (II) the hydrogeological characteristics of the affected property and surrounding land; (III) the quantity and quality of groundwater, and the direction of groundwater flow; (IV) the patterns of rainfall in the region; (V) the proximity of the source area to surface water; (VI) the current and future uses of surface waters in the area and any water quality standards established for these surface waters; (VII) the existing quality of surface water, including other sources of COCs and their cumulative impact on surface-water quality; (VIII) the potential for health risks caused by human exposure to COCs; (IX) the potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to COCs; and (X) the persistence and permanence of the potentially adverse effects. (B) Provided the person demonstrates that the establishment of a plume management zone is appropriate, the POE to groundwater may be changed from throughout the groundwater PCLE zone to an alternate location established in accordance with §350.37(l) or (m) of this title (relating to Human Health Points of Exposure) as applicable, or at the POE for ecological receptors determined in accordance with §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels), where that location is more restrictive. (C) In order to establish a plume management zone, the person must: (i) comply with the institutional control requirements in §350.31(g) of this title, with the exception that proof of compliance with the institutional control requirements shall be submitted to the executive director within 120 days of the approval of the RAP, which provides notice of the existence and location of the plume management zone and which prevents exposure to groundwater from this zone until such time as COCs may reduce to the critical groundwater PCLs; (ii) demonstrate through an appropriate technical presentation that COCs will not migrate beyond the downgradient boundary of the plume management zone at concentrations above the critical groundwater PCLs; and (iii) demonstrate through the performance of a field survey in the plume management zone that there are no artificial penetrations (e.g., abandoned wells or wells with open-hole completions) which can allow COCs at concentrations which exceed the critical groundwater PCLs to migrate from the groundwater PCLE zone to currently unaffected groundwater-bearing units. (D) The person shall establish groundwater attenuation monitoring points beginning at an appropriate hydraulically upgradient location within the groundwater PCLE zone and continuing down the approximate central flow path of the COCs to the downgradient extent of the plume management zone. (i) The number and location of attenuation monitoring points shall be demonstrated to be adequate to reliably verify over time the current and future conformance with the plume management zone response objectives. The number and location of attenuation monitoring points shall depend upon a site-specific evaluation of the hydrogeologic conditions of an affected property, the fate and transport characteristics of the COCs, and the length and configuration of the plume management zone. (ii) The person shall calculate attenuation action levels for each COC at each attenuation monitoring point that cannot be exceeded in order for the critical groundwater PCLs to not be exceeded at the POE. The person shall periodically evaluate the adequacy of the attenuation action levels using any newly acquired empirical monitoring data and reestablish them as necessary to ensure the critical groundwater PCLs are not exceeded at the groundwater POE. (iii) The person shall monitor concentrations of COCs in groundwater at the attenuation monitoring points and the POE in accordance with a schedule approved by the executive director which is adequate to reliably demonstrate conformance with the applicable groundwater response objectives. If an attenuation action level is exceeded at its respective attenuation monitoring point, or a critical groundwater PCL is exceeded at the groundwater POE, then the person shall take an active response action to meet the response objectives presented in subparagraph (F) of this paragraph. The executive director may authorize the person to implement an accelerated monitoring program prior to initiating an active response action in order to verify that a response action is warranted. (E) The person is required to reduce NAPLs which contain COCs in excess of PCLs within a plume management zone to the extent practicable. In the determination of adequate NAPL reduction, the executive director may consider conformance with the following criteria and other relevant factors: (i) readily recoverable NAPLs have been recovered; (ii) the NAPLs will not generate explosive conditions as defined in §350.31(c) of this title (relating to General Requirements for Remedy Standards); (iii) the NAPLs will not discharge to the ground surface, to surface waters, to structures, or to other groundwater-bearing units; (iv) the vertical and lateral extent of NAPLs will not increase under natural conditions, or sufficient NAPLs have been recovered such that an active recovery system can be demonstrated to effectively control or contain migration of NAPLs (i.e., no increased NAPL extent); and (v) the NAPLs will not result in the critical groundwater PCLs being exceeded at the downgradient boundary of the plume management zone or in the critical PCLs for other environmental media being exceeded at the applicable POE. (F) The person shall have the continuing obligation to assess whether changes to local hydraulic gradients would increase the likelihood that COCs can migrate beyond the plume management zone at concentrations above the critical groundwater PCLs. If such changed conditions occur, the person must take any necessary corrective action to ensure that concentrations of COCs exceeding the critical groundwater PCLs do not migrate beyond the boundary of the plume management zone and report the changed condition to the executive director in a timely manner. The person may demonstrate that the hydrogeologic characteristics of a property are such that off-site activities cannot influence an on-site plume management zone and, thus, not be required to monitor changes in the hydraulic gradient. (i) A person may choose to attain the groundwater response objectives for a plume management zone at an affected property either by conducting a response action, if necessary, which makes use of removal and/or decontamination, or with use of removal and/or decontamination with controls or controls only. For both of these approaches, in situations where the PCLE zone extends beyond the limits of an institutional control and the POE to groundwater is thus located within the existing limits of the groundwater PCLE zone, a person may use monitored natural attenuation as a decontamination process provided the person shall demonstrate that the groundwater PCLE zone is not expanding and that the critical groundwater PCL will be met at the POE within a reasonable time frame given the particular circumstances of an affected property. In the situation where the groundwater PCLE zone has not reached steady-state conditions and is migrating downgradient within the plume management zone, the person must use a response action other than monitored natural attenuation, unless it can be demonstrated that the critical groundwater PCL and any other critical PCLs will not be exceeded at the respective POEs. (ii) When a person chooses to attain the groundwater response objectives for a plume management zone at an affected property by conducting a removal and/or decontamination response action, the person must comply with the requirements of this clause. (I) The person must remove and/or decontaminate the groundwater PCLE zone to the extent necessary so that the critical groundwater PCLs will not be exceeded at the POE and the attenuation action levels are not exceeded at their respective attenuation monitoring points, and so that the critical PCLs for other environmental media will not be exceeded at their applicable POEs. (II) The person shall fulfill the post-response action care obligations described in the approved RAP. (III) Provided the person adequately documents attainment of the groundwater plume management zone response objectives provided in subclause (I) of this clause, there are no financial assurance requirements. (iii) When a person chooses to attain the groundwater response objectives for a plume management zone at an affected property by conducting a response action which uses removal and/or decontamination with controls or controls only, the person must comply with the requirements of this clause. (I) The person must remove, decontaminate, and/or control the groundwater PCLE zone to the extent necessary so that the critical groundwater PCLs will not be exceeded at the POE and so that the critical PCLs for other environmental media will not be exceeded at their applicable POEs. (II) The person may use physical controls (e.g., slurry walls, sheet piling, interceptor trenches, or hydraulic control wells) which are capable of reliably containing and preventing the expansion over time of the groundwater source area. (III) For any portion of a groundwater PCLE zone within class 2 or 3 groundwater which is outside of any physical control constructed in accordance with subclause (II) of this clause, the person must reduce the concentration of COCs such that the remaining COCs will satisfy the conditions specified in clause (ii)(I) of this subparagraph. (IV) The person shall fulfill the post-response action care obligations described in the approved RAP. (V) The person shall provide financial assurance for post-response action care in accordance with subsections (l) and (m) of this section. (g) The type, method and extent of post-response action care will be defined on a site-specific basis in the approved RAP and shall be a function of the long-term effectiveness of the response action used to address the soil and/or groundwater PCLE zones or other environmental media containing COCs, the nature and design of any physical controls, the physical and chemical characteristics of the COCs, the geology and hydrogeology of the affected property, and the adjacent land use. The person shall conduct post-response action care as appropriate which includes, but is not limited to: (1) monitoring of environmental media to verify response action effectiveness over time; (2) inspection, operation, and maintenance of physical controls to ensure the effectiveness and integrity of the controls over time; and (3) any other actions after the initial completion of the response action at an affected property which are necessary to protect human health or the environment. (h) The post-response action care period begins upon approval of the RACR by the executive director. The person shall perform post-response action care for 30 years unless the person demonstrates that a shorter post-response action care period would be appropriate due to: (1) the nature of the response action; (2) the persistence, migration potential, and toxicity of the COCs; and (3) the physical characteristics and location of the affected property. (i) The post-response action care activities shall continue throughout the initial post-response action care period in response to subsection (h) of this section and during any continued post-response action care period in response to subsection (j) of this section until a demonstration is made that there is no longer a threat to human health or the environment from the presence of COCs in any environmental media or physical controls. If the person submits a demonstration which documents that post-response action care is no longer necessary then, upon written approval by the executive director, the remainder of the initial or any continued post-response action care period will be canceled and the person will be released from the requirement to maintain financial assurance, and the financial assurance will be returned. The demonstration of no threat to human health or the environment shall be made by adequately documenting one of the following conditions: (1) the concentrations of COCs in soils are less than or equal to the critical surface and subsurface soil PCLs, as applicable, and the concentrations of COCs in groundwater are less than or equal to the critical groundwater PCLs as documented with three consecutive years of groundwater monitoring data, unless an alternate monitoring period is approved by the executive director; (2) the post-response action care activity consists entirely of monitoring the effectiveness of a physical control, and the physical control has been proven successful and secure (i.e., the physical control is permanent and does not require any inspections or maintenance); (3) an affected property contains only a groundwater PCLE zone and such groundwater PCLE zone has been demonstrated to be reducing in size and to have boundaries which are sufficiently smaller than the boundaries of an institutional control so as to preclude any potential for the groundwater PCLE zone to migrate beyond the boundaries of the institutional control considering both natural hydrogeologic conditions and changes to hydraulic gradients by off-site activities; or (4) the COC concentrations in surface and subsurface soils exceed only GW Soil, but the groundwater PCLE zone has been demonstrated to be reducing in size and to have boundaries which are sufficiently smaller than the boundaries of an institutional control so as to preclude any potential for the groundwater PCLE zone to migrate beyond the boundaries of the institutional control considering both natural hydrogeologic conditions and potential changes to hydraulic gradients by off-site activities. (j) If the person cannot make one of the demonstrations specified in subsection (i) of this section by the end of the initial post-response action care period specified in subsection (h) of this section, then the person shall be required to continue post-response action care for additional 30-year periods or until a demonstration of no threat to human health or the environment can be made under subsection (i) of this section. A shorter continued post-response action care period can be used provided the person demonstrates that such period would be appropriate due to: (1) the nature of the response action; (2) the persistence, migration potential, and toxicity of the COCs; and (3) the physical characteristics and location of the affected property. (k) The person shall perform the following record keeping and reporting requirements during the initial and any continued post-response action care period: (1) keep a copy of the approved RAP at the property, or specified alternative location; (2) keep records of all monitoring data, inspection and maintenance reports, and unexpected occurrences affecting any waste control unit or post-response action care systems; (3) submit Post-Response Action Care Reports (PRACRs) in accordance with the schedule in the approved RAP; and (4) notify the executive director in writing within 30 days after an unexpected event occurs, or a condition is detected, during the post-response action care period which indicates that additional response actions will be required at an affected property. (l) For properties using physical control measures in response to subsections (e)(2) and/or (f) of this section, financial assurance shall be established and maintained for the post-response action care period specified in subsection (h) of this section. The person shall prepare and include in the RAP a written cost estimate in current dollars of the total cost of the post-response action care activities for the post-response action care period specified in subsection (h) of this section. The cost estimate shall be based on the costs of hiring a third party to conduct the post-response action care activities. Within 90 days after the executive director's approval of the RAP and before commencing work indicated in the RAP, an acceptable financial assurance mechanism must be submitted to the commission for post-response action care in the amount specified in the approved RAP. If the total post-response action care cost estimate is $100,000 or less, the executive director may choose to exempt the person from providing a financial assurance demonstration. For persons meeting the requirements of subsection (n) of this section, the amount of financial assurance demonstrated may be less than the total post-response action care cost estimate. Financial assurance for post-response action care shall be demonstrated in compliance with Chapter 37, Subchapter N of this title (relating to Financial Assurance Requirements for the Texas Risk Reduction Program Rules). The executive director may perform the post-response action care activities at an affected property using the funds provided for this purpose when the executive director determines that a person has failed to provide the post-response action care described in an approved RAP. (m) For properties using physical control measures in response to subsections (e)(2) and/or (f) of this section that require post-response action care beyond the initial post-response action care period, financial assurance shall continue to be demonstrated for the post-response action care period specified in subsection (j) of this section. At least 180 days before the end of the preceding post-response action care period, a written cost estimate in current dollars shall be prepared and submitted for the cost of continuing the post-response action care activities specified in the approved RAP for the additional post-response action care period specified in subsection (j) of this section. The cost estimate shall be based on the costs of hiring a third party to conduct the post-response action care activities. At least 90 days before the end of the preceding post-response action care period, an acceptable financial assurance mechanism shall be submitted for the continued post-response action care period in an amount approved by the executive director. If the total post-response action care cost estimate is $100,000 or less, the executive director may choose to exempt the person from providing a financial assurance demonstration. For persons meeting the requirements of subsection (n) of this section, the amount of financial assurance demonstrated may be less than the total post-response action care estimate. Financial assurance for post-response action care shall be demonstrated in compliance with Chapter 37, Subchapter N of this title (relating to Financial Assurance Requirements for the Texas Risk Reduction Program Rule). The executive director may perform the continued post-response action care activities at an affected property using the funds provided for this purpose when the executive director determines that a person has failed to provide the post-response action care described in an approved RAP. (n) The owner or an authorized officer of a small business, as defined in this subsection, may seek to reduce the amount of financial assurance demonstrated under this subsection if the initial post-response action care period or subsequent post-response action care periods specified in subsections (h) - (j) of this section are greater than ten years. If the executive director determines a person meets the definition as specified in paragraph (2) of this subsection, the person shall submit the affidavit required by paragraph (1) of this subsection and establish and maintain financial assurance for the post-response action care period in an amount based on the following equation: ((total cost estimate)/(number of years in total response action care period)) X 10. The owner shall continue demonstrating subsequent post-response action care in ten year periods or as directed by the executive director. The owner or an authorized officer is required to notify the executive director when the definition specified in paragraph (2) of this subsection is no longer met. A small business must comply with subsections (l) and (m) of this section relating to financial assurance. (1) An affidavit signed by the owner or an authorized officer stating the business meets the definition of a small business as defined in paragraph (2) of this section shall be submitted to the executive director. (2) Definition of small business. (A) For purposes of financial assurance, a small business shall be defined as any person, firm, or business which employs, by direct payroll and/or through contract, fewer than 100 full-time employees and has net annual receipts of less than $3 million. Net annual receipts are defined as annual gross receipts less returns, discounts, and adjustments. The period used to determine net annual receipts shall be the preceding 12-month accounting year and can be either a calendar or fiscal-based period. (B) A business that is a wholly-owned subsidiary of a corporation shall not qualify as a small business under this section if the parent organization does not qualify as a small business under this section.</content><note type="source"><p>Source Note: The provisions of this §350.33 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scB/s350.34"><num value="350.34">§350.34</num><heading>No Further Action</heading><content>Particular agency program areas covered by this rule will confirm that a person has completed all necessary response actions at an affected property and that no further action is required. The program areas may issue other letters acknowledging conditional or partial completion of response actions, as appropriate.(1) For Remedy Standard A, such confirmation will be issued subsequent to approval of the RACR by the executive director and, when applicable, receipt by the agency of proof that any required institutional control noting commercial/industrial land use is in effect for the affected property in accordance with §350.31(g) of this title (relating to General Requirements for Remedy Standards), or noting the use of a non-default exposure area is in effect in accordance with §350.51(l)(3) or 4 of this title (relating to Affected Property Assessment), or noting the use of occupational inhalation criteria as RBELs is in effect in accordance with §350.74(b)(1) or noting the use of non-default RBEL exposure factors is in effect in accordance with §350.74(j)(2) of this title (relating to Development of Risk-Based Exposure Limits).(2) For Remedy Standard B, a conditional no further action letter will be issued subsequent to approval of the RACR by the executive director and, when applicable, receipt by the agency of proof that any required institutional control noting commercial/industrial land use is in effect for the affected property in accordance with §350.31(g) of this title (relating to General Requirements for Remedy Standards), or noting the use of a non-default exposure area is in effect in accordance with §350.51(l)(3) or 4 of this title, or noting the use of occupational inhalation criteria as RBELs is in effect in accordance with §350.74(b)(1) or noting the use of non-default RBEL exposure factors is in effect in accordance with §350.74(j)(2) of this title. The letter will indicate that the person has conditionally completed response actions at the affected property but must perform post-response action care obligations as described in the approved RAP throughout the initial and any continued post-response action care period in response to §350.33(h) - (j) of this title (relating to Remedy Standard B). The letter will also indicate whether the person must establish and maintain financial assurance in response to §350.33(l) and/or (m) of this title for post-response action care for affected properties which use physical controls.(3) For Remedy Standard B, a final no further action letter will be issued subsequent to termination of the post-response action care period by the executive director as described in §350.33(i) of this title.</content><note type="source"><p>Source Note: The provisions of this §350.34 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scB/s350.35"><num value="350.35">§350.35</num><heading>Substantial Change in Circumstances</heading><content>(a) Upon receipt of approval by the executive director of the RACR, performance of applicable post-response action care, maintenance of any applicable financial assurance, and termination of any applicable post-response action care period by the executive director, the person will have completed the obligations of this chapter unless a substantial change in circumstances results in an unacceptable risk to human health or the environment.(b) No person shall cause, suffer, allow, or permit a threat to human health or the environment by changing a land use specified in an approved RACR from commercial/industrial to residential or by removing, altering or failing to maintain a physical or institutional control that applies to an affected property that underwent an approved response action.(c) If a person plans to change the land use from commercial/industrial to residential, or to eliminate or modify the use of a physical control or institutional control, then that person shall take any actions necessary to make the property protective for such changed conditions. The person making the change shall notify the executive director in writing at least 60 days prior to changing the land use or the use of the approved physical or institutional controls. The person may self-implement actions to satisfy the requirements of paragraph (1) or (2) of this subsection but must obtain prior approval of the executive director to undertake actions for paragraph (3) of this subsection. The person making the change shall then provide a reevaluation of the property at least 30 days prior to the date of the planned change such that the person is able to demonstrate:(1) that levels of COCs have degraded to concentration levels below the applicable critical PCLs for the planned land use or property condition change;(2) that the COC removal or decontamination will meet the applicable critical PCLs for the planned land use or property condition change; or(3) that the application of a proposed physical and/or institutional control will ensure adequate protection of human health and the environment. Any proposed institutional control shall conform with all requirements of §350.111 of this title (relating to Use of Institutional Controls).(d) A substantial change in circumstances shall include, but is not limited to, the situations described in paragraphs (1)-(5) of this subsection. In response to these substantial changes in circumstances, the person shall use the rule in effect at the time of the substantial change to protect human health or the environment. This subsection will only apply to affected properties regulated under §350.2(g) of this title (relating to Applicability) which have completed response actions under this chapter.(1) An institutional or physical control fails to prevent exposure at the approved performance level.(2) An actual exposure condition is determined to be occurring at levels not protective of human health or the environment (e.g, unprotective ecological exposure is occurring).(3) New information indicates that the presence of COCs at the affected property was not sufficiently characterized such that an unacceptable threat to human health or the environment continues to exist.(4) The exposure area upon which representative concentrations are based in accordance with §350.51 of this title (relating to Affected Property Assessment) changes, and as a result of the changed exposure area, there is an unacceptable threat to human health or the environment.(5) A health and safety plan to ensure compliance with occupational inhalation criteria as RBELs as provided for in §350.74(b)(1) of this title (relating to Development of Risk-Based Exposure Limits) will no longer be maintained.(e) For purposes of this section, changes made to this chapter in response to periodic reviews of the general procedures specified to generate PCLs, or in response to revisions to reflect new toxicity data, do not constitute a substantial change in circumstances, unless these changes are of such magnitude to present an unacceptable threat to human health or the environment when evaluated for future exposure conditions based on property-specific considerations. This subsection will only apply to affected properties regulated under §350.2(g) of this title (relating to Applicability) which have completed response actions under this chapter.(f) If the person determines that the conditions specified in subsection (c)(1) or (2) of this section are met such that a deed notice, VCP certificate of completion, or restrictive covenant is no longer needed to protect human health and the environment, then the person may request that the executive director approve a superceding deed notice in accordance with §350.111(b)(4) of this title (relating to Use of Institutional Controls) or a restrictive covenant release in accordance with §350.111(b)(7) of this title (relating to Use of Institutional Controls) if a deed notice or restrictive covenant was the form of institutional control. The person shall provide the necessary information to document that the conditions of subsection (c)(1) or (2) of this section are met.</content><note type="source"><p>Source Note: The provisions of this §350.35 adopted to be effective September 23, 1999, 24 TexReg 7436.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scB/s350.36"><num value="350.36">§350.36</num><heading>Relocation of Soils Containing Chemicals of Concern for Reuse Purposes</heading><content>(a) A person must comply with this section when relocating soils for reuse purposes from an affected property (on-site or off-site) which is undergoing or has completed a response action under Remedy Standard A or B and the soils contain COCs in excess of naturally occurring background concentrations. Relocation of soils which contain COCs may be subject to additional requirements or limitations (e.g., land disposal restrictions) within each program area identified in §350.2 of this title (relating to Applicability). The person must treat excavated soils containing non-aqueous phase liquids to applicable levels prior to relocation or else manage the soils as wastes. The excavation of soils containing COCs during construction activities (e.g., installation, repair, removal of telephone lines or other utilities, but not closures, remediations, or PST tank removal actions, for example) and the subsequent replacement of those soils into that same excavation shall not be considered to constitute relocation or reuse and shall not be subject to the provisions of this section.(b) The person may relocate soils for reuse in response to Remedy Standard A when COCs meet the critical soil PCLs and the following requirements for the new location.(1) Soils to be reused must meet the residential or commercial/industrial critical surface or subsurface soil PCLs as applicable for the new location, depending upon depth of placement, established in accordance with Subchapter D of this chapter (relating to Development of Protective Concentration Levels).(2) The soil reuse shall be protective of ecological receptors at the new location.(3) The soil reuse activity must allow the requirements for Remedy Standard A response actions set forth in §350.32(a) of this title (relating to Remedy Standard A) to be met at the new location.(4) The person shall comply with the institutional control requirement for commercial/industrial land use as specified in §350.31(g) of this title (relating to General Requirements for Remedy Standards). Proof of compliance with the institutional control requirement shall be submitted within 90 days of completing the relocation action.(5) The reuse of soils with concentrations of COCs which do not exceed the critical soil PCLs for the new location does not require the prior approval of the executive director, when that new location is within the boundary of on-site or off-site property which contains the affected property (i.e., not just within the affected property limits).(c) The person must meet the following requirements in response to Remedy Standard B when soils that are to be relocated for reuse purposes contain concentrations of COCs that exceed the critical soil PCLs for the new location.(1) The person shall determine the critical surface and, if applicable, subsurface soil PCLs in accordance with Subchapter D of this chapter (relating to Development of Protective Concentration Levels) for the new location.(2) The soil reuse must be protective of ecological receptors at the new location.(3) The person shall demonstrate that the soil reuse activity will allow the requirements for Remedy Standard B response actions set forth in §350.33(a) of this title (relating to Remedy Standard B) to be met for the new location.(4) The person shall comply with the institutional control requirements specified in §350.31(g) of this title (relating to General Requirements for Remedy Standards). Proof of compliance with the institutional control shall be submitted within 90 days of completing the relocation action.(5) The reuse of soil under Remedy Standard B requires prior executive director approval.(6) The executive director may require the person to conduct post-response action care and submit PRACRs.(7) The executive director may require the person to provide financial assurance for post-response action care in response to §350.33(e)(2)(C) of this title (relating to Remedy Standard B).(d) If soils which contain concentrations of COCs above naturally-occurring levels resulting from a release are to be relocated for reuse on property not owned by the person, then the person shall obtain the written consent of the landowner prior to relocation of the soils.(e) Within 90 days of completing a soil relocation action under this section, the person shall complete the applicable portions of a RACR as described in §350.95 of this title (relating to Response Action Completion Report) and make it available for inspection or submittal upon request of the executive director.</content><note type="source"><p>Source Note: The provisions of this §350.36 adopted to be effective September 23, 1999, 24 TexReg 7436.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scB/s350.37"><num value="350.37">§350.37</num><heading>Human Health Points of Exposure</heading><content>(a) General. The person shall use the prescribed on-site and off-site POEs for humans to environmental media to determine PCLs under Remedy Standard A in response to §350.32 of this title (relating to Remedy Standard A) and under Remedy Standard B in response to §350.33 of this title (relating to Remedy Standard B). In order to establish on-site or off-site POEs for commercial/industrial land use, or alternate POEs for on-site or off-site properties, the person must comply with §350.111 of this title (relating to Use of Institutional Controls). Consideration of competent, existing physical controls during the pathway analysis described in §350.71(d) of this title (relating to General Requirements) does not negate or otherwise supercede the POE locations specified in this section. Subsections (b) - (k) of this section identify the media-specific prescribed, on-site and off-site POEs while subsections (l) and (m) of this section establish alternate POEs for class 2 and 3 groundwater under Remedy Standard B. When establishing on-site and off-site POEs for residential or commercial/industrial land use, persons shall use the appropriate receptor as required in §350.71(b) of this title (relating to General Requirements) for the designated land use. (b) Air human health POEs. (1) On-site POEs. The prescribed on-site POE to air is within the breathing zone (2 meter height) directly over the soil or groundwater COCs. (2) Off-site POEs. The prescribed off-site POE to air is within the breathing zone (2 meter height) starting at the nearest boundary with and continuing throughout neighboring off-site properties. (c) Soil human health POEs. (1) On-site POEs. The prescribed on-site POE to soil is throughout the surface soil. (2) Off-site POEs. The prescribed off-site POE to soil is throughout the surface soil starting at the nearest boundary with and continuing throughout neighboring off-site properties. (d) Human health POEs for class 1, 2, and 3 groundwaters which do not contain any COCs in excess of the critical groundwater PCLs. (1) On-site POE. The prescribed on-site POE is throughout the upper-most groundwater-bearing unit. (2) Off-site POE. The prescribed off-site POE is throughout the upper-most groundwater-bearing unit on the nearest boundary with the closest hydraulically downgradient off-site property. (e) General provisions for human health POEs for class 1, 2, or 3 groundwater. (1) Whenever there is an existing class 1, 2, or 3 groundwater PCLE zone beneath an existing waste control unit or a waste control unit planned as part of an approved RAP, under Remedy Standard B the person may, with the executive director's approval, exclude the area underlying the waste control unit as a POE to class 1, 2, or 3 groundwater. (2) Groundwater travel time setback distances for class 1, 2, and 3 groundwater shall be determined based on groundwater seepage velocity which is dependent upon prevailing hydraulic gradient, hydraulic conductivity, and effective porosity. (f) Human health POEs for class 1 groundwater. (1) On-site POEs. The prescribed on-site POE to class 1 groundwater is a well which may be completed at all locations throughout the on-site groundwater PCLE zone. For on-site commercial/industrial land use, the person shall establish an additional on-site POE for class 1 groundwater for residents unless the residential-based groundwater PCLE zone already extends off-site. The residential POE shall be set at a distance of two-year groundwater travel time upgradient of the nearest boundary with the closest hydraulically downgradient off-site property. If the residential-based groundwater PCLE zone already extends beyond the two-year groundwater travel time setback distance but not off-site, then the residential POE shall be set at the existing limit of the residential-based groundwater PCLE zone. (2) Off-site POEs. The prescribed off-site POE to class 1 groundwater is a well which may be completed at all locations throughout an off-site groundwater PCLE zone. For off-site commercial/industrial land use, the person shall establish an additional POE for class 1 groundwater for residents at, and all locations beyond, the existing limit of the off-site residential-based groundwater PCLE zone. (g) Human health POEs for class 2 groundwater. (1) On-site POEs. The prescribed on-site POE to class 2 groundwater is a well which may be completed at all locations throughout the on-site groundwater PCLE zone. For on-site commercial/industrial land use, the person shall establish an additional on-site POE for class 2 groundwater for residents unless the residential-based groundwater PCLE zone already extends off-site. The residential POE shall be set at a distance of two years groundwater travel time upgradient of the nearest boundary with the closest hydraulically downgradient off-site property. If the residential-based groundwater PCLE zone already extends beyond the two-year groundwater travel time setback distance but not off-site, then the residential POE shall be set at the existing limit of the residential-based groundwater PCLE zone. (2) Off-site POEs. The prescribed off-site POE to class 2 groundwater is a well which may be completed at all locations throughout an off-site groundwater PCLE zone. For off-site commercial/industrial land use, the person shall establish an additional POE for class 2 groundwater for residents at, and all locations beyond, the existing limit of the off-site residential-based groundwater PCLE zone. (h) POEs for class 3 groundwater. (1) On-site POEs. The prescribed on-site POE to class 3 groundwater is at all locations throughout an on-site groundwater PCLE zone defined by concentrations greater than GW GW Class3 for the applicable on-site land use. (2) Off-site POEs. The prescribed off-site POE to class 3 groundwater is at all locations throughout an off-site groundwater PCLE zone defined by concentrations greater than GW GW Class 3 for the applicable off-site land use which is sourced from an on-site release of COCs. If commercial/industrial land use is assumed for the off-site property, then the person shall establish an additional POE for class 3 groundwater for residents at, and all locations beyond, the existing limit of the off-site residential-based groundwater PCLE zone. (i) POEs for surface water runoff or groundwater discharges to surface water. The prescribed POE to surface water will be at the point of surface water runoff or groundwater discharge (i.e., within the groundwater) into and throughout the extent of any on-site or off-site surface water body meeting the definition of surface water in the state as defined in §307.4 of this title (relating to General Criteria), as amended. This includes the surface water body at the initial point of entry and other water bodies that may be impacted by COCs. (j) POEs for releases of COCs directly to surface water. The prescribed POE for releases directly to surface water is at the point of entry of COCs into and throughout the extent of any surface water body meeting the definition of surface water in the state as defined in §307.4 of this title, as amended. (k) POEs for sediment. The prescribed POE to sediment is within the upper one-foot of sediment beneath any surface water body meeting the definition of surface water in the state as defined in §307.4 of this title, as amended. For intermittent water bodies, both sediment and surface soil POEs may apply. (l) Alternate POEs to class 2 groundwater under Remedy Standard B. Provided the person is authorized by the executive director to establish a plume management zone in response to §350.33(f)(4) of this title (relating to Remedy Standard B), the person may establish an alternate on-site POE or off-site POE to class 2 groundwater in accordance with paragraph (1), (2), or (3) of this subsection as dictated by the particular circumstances at the affected property. The current length of the residential-based groundwater PCLE zone shall be determined as of the submittal date of the RAP. (1) On-site POEs. (A) The on-site POE to class 2 groundwater may be modified to be a well for residents completed at the on-site downgradient boundary of a plume management zone which includes the current length of the residential-based groundwater PCLE zone plus an additional length determined in accordance with paragraph (4) of this subsection. (B) In the situation where multiple on-site plume management zones exist, and have commingled, or are within 500 feet of one another such that the management as a combined plume management zone is more feasible and appropriate, with site-specific approval from the executive director, the person may combine the separate plume management zones into a single, combined plume management zone provided the alternate POE for the combined plume management zone satisfies paragraph (4) of this subsection. (2) Off-site POEs for off-site properties with class 2 groundwater which currently contains the residential-based groundwater PCLE zone. The person may establish an alternate off-site POE to class 2 groundwater as a well for residents completed at the off-site downgradient boundary of a plume management zone which includes the current length of the groundwater PCLE zone plus an additional length determined in accordance with paragraph (4) of this subsection. (3) Off-site POEs for off-site properties with class 2 groundwater which currently do not contain the residential-based groundwater PCLE zone. (A) If the person can demonstrate that the subject groundwater-bearing unit has no reasonably anticipated future beneficial use, then the person may allow a plume management zone to extend onto an off-site property. The person shall establish an alternate off-site POE to class 2 groundwater as a well for residents completed at the off-site boundary of a plume management zone which includes the current length of the groundwater PCLE zone plus an additional length determined in accordance with paragraph (4) of this subsection. (B) Unless the demonstration discussed in subparagraph (A) of this paragraph is made, the person shall not allow a plume management zone within class 2 groundwater to extend onto any off-site property which does not currently contain a residential-based groundwater PCLE zone. (C) The determination of future beneficial use under subparagraph (A) of this paragraph shall be based upon the existing quality of groundwater, considering nonpoint sources of COCs and their cumulative impact on the groundwater quality, the lack of use of the groundwater based on the presence of superior water supplies, proximity and withdrawal rates of groundwater users, or the property is subject to a zoning or governmental ordinance which is equivalent to the deed notice, VCP certificate of completion or restrictive covenant that otherwise would have been required. The executive director may require the collection of groundwater samples to document the presence of the COCs originating from nonpoint sources. (4) The maximum additional length of the plume management zone for the situations described in paragraphs (1), (2), and (3) of this subsection shall be established as the smallest of the following applicable distances, unless the affected property is subject to zoning or a governmental ordinance which is equivalent to the deed notice, VCP certificate of completion or restrictive covenant that otherwise would have been required, in which case subparagraphs (C) and (D) of this paragraph do not apply: (A) up to 500 feet beyond the current length of the residential-based groundwater PCLE zone; (B) a length of up to 0.25 times the current length of the residential-based groundwater PCLE zone (i.e., up to 25% additional plume length); (C) to within two years groundwater travel time of the closest hydraulically downgradient off-site property: (i) for which the owner has not provided written concurrence to allow the recording of an institutional control; or (ii) which does not contain the residential-based PCLE zone and the groundwater has a reasonably anticipated future beneficial use; (D) at the current downgradient extent of the residential-based PCLE zone when the residential-based groundwater PCLE zone is already within the two-year travel time setback distance for POEs under subparagraph (C) of this paragraph; or (E) the distance to a surface water POE as described in subsection (i) of this section. (m) Alternate POEs to class 3 groundwater under Remedy Standard B. Provided the person is authorized by the executive director to establish a plume management zone in response to §350.33(f)(4) of this title (relating to Remedy Standard B), the person may establish an alternate on-site or off-site POE to class 3 groundwater. The GW GW Class 3 PCL to be applied at this alternate POE shall be based upon residential land use. The boundary of the plume management zone may be established up to the lesser of: (1) To within two years groundwater travel time upgradient of: (A) The closest hydraulically downgradient off-site property for which the landowner has not provided written concurrence to allow the recording of an institutional control for situations where zoning or a governmental ordinance does not serve as the institutional control; or (B) The downgradient limit of a zoning or governmental ordinance that serves as the institutional control; or (2) The distance to a surface water POE as described in subsection (i) of this section.</content><note type="source"><p>Source Note: The provisions of this §350.37 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c350/scC"><num value="C">SUBCHAPTER C</num><heading>AFFECTED PROPERTY ASSESSMENT</heading><section identifier="/us/state/tx/tac/t30/p1/c350/scC/s350.51"><num value="350.51">§350.51</num><heading>Affected Property Assessment</heading><content>(a) The person shall conduct an affected property assessment in a manner appropriate for the affected property considering the hydrogeology, physical and chemical properties of the COCs, location of human and ecological receptors, and the complete or reasonably anticipated to be completed exposure pathways identified in §350.71 of this title (relating to General Requirements). The assessment shall be designed to collect information necessary to support notification of affected landowners and remedy selection, determine whether or not water resources have been affected or are threatened, and may also evaluate the effectiveness of existing physical controls. Additionally, when existing physical controls will be used as part of the response action in accordance with Remedy Standard B, then the assessment may be conducted such that the primary focus is placed beyond the limits of the existing physical control in order to reduce the degree of assessment within the limits of the physical control. The assessment shall be conducted in a manner most likely to detect the presence and distribution of COCs above the concentration levels defined in subsections (b) - (e) of this section considering the nature of the release and subsequent modifications to the affected property (e.g., judgmental samples in hot spots, stratified random sampling, systematic grid, etc.), and shall use appropriate quality assurance/quality control. The geology and hydrogeology of the affected property shall be adequately characterized, such that COC fate and transport can be reliably predicted in order to confidently locate existing environmental media containing COCs above the concentration levels defined in subsections (b) - (e) of this section and an appropriate response action can be designed. The person shall use sample collection techniques that meet the data quality needs and are acceptable to the executive director. The results of the assessment shall be documented in an Affected Property Assessment Report in accordance with §350.91 of this title (relating to Affected Property Assessment Report). The person shall conduct an assessment in a manner which is timely considering the size and complexity of the situation, and shall comply with an assessment schedule established in any commission rule, order, or permit, or any assessment schedule approved by the executive director. (b) The person shall perform an affected property assessment through the collection and analysis of a sufficient number of samples from environmental media to reliably characterize the nature and degree of COCs in the source area(s), as well as the horizontal and vertical extent of COCs in soil and groundwater, which equals or exceeds the applicable concentration of COCs as specified in subsections (c), (d) and (e) of this section, unless the executive director determines on a site-specific basis that additional assessment of the extent of COCs is necessary to evaluate a potential threat to human health and the environment. Information obtained from attempts to attain Remedy Standard A may be submitted for this purpose. The person shall characterize the nature, degree and extent of COCs in other environmental media as required by the executive director in consideration of property-specific factors. The executive director may require the person to determine the concentrations of COCs in outdoor or indoor air on a property-specific basis. (c) The person shall demonstrate that all COCs in environmental media (except for on-site soils as noted below) which exceed the residential assessment level have been characterized horizontally in all directions. If the assessment level is based upon background concentrations, then the assessment shall only extend to the background concentration level. For soils only, the person can focus the horizontal on-site assessment to define the area exceeding the applicable critical PCL (i.e., residential or commercial/industrial). However, the person shall investigate environmental media, including soils, using adequate on-site or off-site data to determine whether off-site properties have been affected with concentrations of COCs which exceed the residential assessment levels. The requirement to use an assessment level based upon a residential receptor (i.e., residential assessment level) pertains to all off-site properties (i.e., both residential and commercial/industrial land use). (d) For the vertical soil assessment to adequately determine if groundwater has been or will be affected, the person shall complete the requirements of paragraph (1), (2), (3) or (4) of this subsection. (1) The person shall demonstrate that the vertical limit of COCs in soil which exceed the higher of the method quantitation limit or background concentrations has been characterized. If the person satisfactorily demonstrates that all reasonably available analytical technology has been used to show that the COC cannot be measured to the method quantitation limit due to sample specific interferences, then the sample detection limit may be used in lieu of the method quantitation limit. (2) If an adequate groundwater assessment has been conducted (i.e., COC concentrations in groundwater have been measured from appropriate locations), then the person shall characterize the vertical limits of COCs in soil which exceed the residential assessment level. The GW Soil PCL may not be applicable in the determination of the residential assessment level if the person has conducted an adequate groundwater assessment and can meet the requirements of §350.75(i)(7)(C) of this title (relating to Tiered Human Health Protective Concentration Level Evaluation). The executive director may omit or modify the requirement for a groundwater assessment under this paragraph for use of §350.75(i)(7)(C) of this title on a site-specific determination based upon a combination of supporting evidence including, but not necessarily limited to, probable depth to groundwater, presence of soils or bedrock that prohibit or impede vertical migration of COCs, and physical and chemical properties of the COCs. (3) If the uppermost groundwater-bearing unit is encountered before the vertical limit of COCs is determined to the higher of the method quantitation limit or background concentrations, then representative groundwater samples (i.e., a groundwater sample does not have to be collected from each boring) must be collected to evaluate potential groundwater impacts. The vertical extent of the soil assessment shall continue beyond the uppermost groundwater-bearing unit as appropriate based on the likelihood that COCs have migrated deeper considering the chemical and physical properties of the COCs (e.g., dense non-aqueous phase liquids) and the hydrogeology of the affected property. The executive director may omit or modify this requirement on a site-specific basis if the vertical assessment would exacerbate the vertical migration of COCs. (4) If a person has already determined that the groundwater is impacted, then they may satisfy the requirements of this subsection by declaring the entire soil column to the top of the lowest impacted groundwater bearing unit as a soil PCLE zone. (e) The person shall define the vertical extent of COCs in groundwater to below the residential assessment level by collecting a representative sample from a deeper groundwater-bearing unit with concentrations less than the residential assessment levels, unless the person demonstrates that vertical migration to a lower groundwater-bearing unit is not possible. The person shall base such demonstration on the hydrogeology and the chemical and physical properties of the COCs. The person shall take proper precautions to prevent cross-contamination when collecting a sample from a deeper groundwater-bearing unit. The executive director may omit or modify this requirement on a site-specific basis if the vertical assessment would exacerbate the vertical migration of COCs. (f) The person shall use concentrations measured in groundwater at or immediately upgradient of the zone of groundwater discharge to surface water to determine if COCs in groundwater have discharged to surface waters. (g) For affected properties with response actions which are designed and approved under Remedy Standard B for the use of a plume management zone, the person shall characterize the geology and hydrogeology throughout all areas of the plume management zone (i.e., including those areas of the plume management zone which are currently beyond the limits of the groundwater which contains COCs in excess of the assessment level). (h) The person shall attempt to identify all surface and subsurface structures at the affected property which may influence COC migration, including subsurface utilities. (i) The person shall conduct a field survey to locate potential receptors, including water wells and surface waters to at least 500 feet beyond the boundary of the affected property; and conduct a records survey to identify all water wells and surface water bodies within 1/2 mile of the limits of groundwater which contains COCs in excess of the residential assessment level. The person shall also attempt to identify any off-site properties within 1/4 mile of the affected property that have environmental information (e.g., soil boring logs, analytical results from samples of environmental media, etc.) collected for submission to the agency which may be useful in fulfilling the requirements of this section, although collection and submittal of this information by the person is not required. (j) When determining concentrations of COCs in an environmental medium, the person shall collect and handle samples in accordance with sampling methodologies which will yield representative concentrations of COCs present in the sampled medium. (k) When determining concentrations of COCs in surface water and sediment, the person shall collect and handle samples in accordance with the requirements in the agency's Surface Water Quality Monitoring Procedures, Volume I, as amended, or shall use an alternative methodology approved by the executive director. (l) The person shall determine concentrations of COCs within the environmental media at the affected property. The executive director may approve the use of statistical or geostatistical methods to determine representative concentrations of COCs at the affected property or within areas representative of site-specific background conditions as long as the following conditions are satisfied. (1) The person shall ensure that all assumptions for the selected statistical or geostatistical method are met or critically examined and explained if the assumptions cannot be met (e.g., random sampling design, normal or log-normal distribution, etc.). Judgmental samples may be used, as long as it can be demonstrated that the resulting estimated representative concentration is not biased low. (2) An appropriate number of samples for the statistical method shall be used. If site-specific background is determined using the upper confidence limit or similar statistical method, then a minimum of eight samples shall be used. If the person uses an arithmetic average to determine the background concentration, then a minimum of five samples shall be used. (3) The soil exposure area for existing residential yards or platted residential properties shall not exceed 1/8th acre or the size of the front or back yard of the affected residential lot, unless it is demonstrated that a larger area, not to exceed 1/2 acre, is appropriate based upon the activity patterns of residents at a specific affected property. For other properties classified as residential (e.g., parks, hospitals), the executive director may approve a larger exposure area if justified based on site-specific conditions. If an area larger than 1/8th acre or the size of the front or back yard of the existing affected residential lot is approved by the executive director, then the person shall comply with the applicable institutional control in requirements §350.111(b), (b)(8) or (10) of this title (relating to Use of Institutional Controls). If COCs are relatively homogeneous over an area larger than the residential default size, the executive director may allow concentrations to be averaged over this larger area, in which case the institutional control would not be required. (4) The soil exposure area for commercial/industrial properties shall not exceed 1/2 acre, unless it is demonstrated that a larger area is appropriate based upon documented activity patterns for commercial/industrial workers at an active commercial/industrial facility (the assumed exposure area should represent the smallest area over which an individual can be expected to move randomly). In approving an exposure area for an active commercial/industrial facility, the executive director may consider any appropriate site-specific information which documents typical worker activity patterns. If an area larger than 1/2 acre is approved by the executive director, then the person shall comply with the institutional control requirements in §350.111(b), (b)(9) or (11) of this title (relating to Use of Institutional Controls), as applicable. If COCs are relatively homogeneous over an area larger than 1/2 acre, the executive director may allow concentrations to be averaged over this larger area, in which case the institutional control provision would not be required. (5) The executive director may require a separate assessment of smaller but notable areas of soil contamination (i.e., "hot spots") at sites where site-specific features are present such that there is likely to be preferential exposure to this smaller area (e.g., worker exposures around the physical infrastructure of a work space, soils within a child's play area). The presence of hot spots with respect to ecological risk shall be determined on a site-specific basis. (m) If a person does not desire to determine a site-specific soil background concentration, then they may use the Texas-specific median background concentrations for metals provided in the following figure. The Texas-specific background concentrations may be used to determine the critical PCL and then used in comparisons to individual measurements of COCs or representative concentrations of COCs in accordance with §350.79(1) or (2)(A) of this title (relating to Comparison of Chemical of Concern Concentrations to Protective Concentration Levels), respectively. Attached Graphic(n) Analytical results, including non-detected analytical results, should be considered whether doing direct comparisons of individual measurements or when using statistical or geostatistical approaches. In cases where there is reason to believe, based on available analytical data, that the COC could be present at that sampling location and that the concentration of the COC is suspected to be near but below the sample detection limit, the full value of the sample detection limit should be used as a proxy for the non-detected result. If there is reason to believe, based on available analytical data, that the COC could be present at that sampling location and that the concentration of the COC is suspected to be below, but not near to, the sample detection limit, then 1/2 the sample detection limit should be used as a proxy for the non-detected result. Other statistically-based approaches for handling non-detected results or assigning proxy values may be appropriate and approved if there is sufficient technical basis. If greater than 15 percent non-detected results are reported for a particular medium, and the exposure area cannot be definitively identified based on documented and verifiable site-specific information, the executive director may require persons to utilize alternative statistical methods for calculating the concentration term. (o) When required by the executive director, the person shall classify an affected property in accordance with a risk-based system established by the executive director. The classification shall consider all information collected during the affected property assessment, any historical knowledge concerning the conditions at the affected property, and the short-term or long-term potential for human or ecological receptors to be exposed to COCs.</content><note type="source"><p>Source Note: The provisions of this §350.51 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scC/s350.52"><num value="350.52">§350.52</num><heading>Groundwater Resource Classification</heading><content>The person shall use the following groundwater resource classification system to classify each groundwater-bearing unit which contains COCs at concentrations equal to or greater than the residential groundwater assessment level. The person shall submit data which support the groundwater resource classification in an affected property assessment report. If a groundwater-bearing unit meets the criteria for more than one of the following classifications, then the person shall assign the higher of the classifications (e.g., if a groundwater-bearing unit falls in class 1 and class 3, it will be classified as class 1), unless otherwise approved by the executive director.(1) Class 1 groundwater resource. To be considered a class 1 groundwater resource, the groundwater-bearing unit must meet at least one of the following conditions:(A) any groundwater-bearing unit within 1/2 mile of an existing well used to supply drinking water to a public water system as defined in §290.38 of this title (relating to Definitions), as amended, which can contribute COCs to the groundwater production zone of such public water supply well based on the chemical properties of the COCs, the hydrogeology, and the construction of the well;(B) a groundwater-bearing unit which is the only reliable source of water (i.e., a connection to a public water system is not currently available and will not be provided to the affected property as part of the RAP) not more than 800 feet below the land surface that is capable of producing groundwater with a naturally occurring total dissolved solids content of less than 1,000 milligrams per liter (mg/l) and at a sustainable rate greater than 5,000 gallons per day to a well with a four inch diameter casing or an equivalent sustainable rate in gallons per day to a well with a smaller or larger diameter casing; or(C) groundwater-bearing unit capable of yielding groundwater with less than or equal to a naturally occurring total dissolved solids content of 3,000 mg/l and at a sustainable rate greater than or equal to 144,000 gallons per day to a well with a 12 inch diameter casing or an equivalent sustainable rate in gallons per day to a well with a smaller or larger diameter casing, and the natural quality of that groundwater meets all primary drinking water standards as defined in 40 Code of Federal Regulations Part 141, as amended.(2) Class 2 groundwater resource. Class 2 groundwater resources include:(A) any groundwater-bearing unit which is a groundwater production zone for an existing well located within 1/2 mile of the affected property and which is used to supply groundwater for human consumption, agricultural purposes or any purpose which could result in exposure to human or ecological receptors; or(B) any groundwater-bearing unit which is capable of producing waters with a naturally occurring total dissolved solids content of less than 10,000 mg/l and at a sustainable rate greater than 150 gallons per day to a well with a four inch diameter casing or an equivalent sustainable rate in gallons per day to a well with a smaller or larger diameter casing.(3) Class 3 groundwater resource. Class 3 groundwater resources include any groundwater-bearing unit which produces water with a naturally occurring total dissolved solids content of greater than 10,000 mg/l or at a sustainable rate less than 150 gallons per day to a well with a four inch diameter casing or an equivalent sustainable rate in gallons per day to a well with a smaller or larger diameter casing.</content><note type="source"><p>Source Note: The provisions of this §350.52 adopted to be effective September 23, 1999, 24 TexReg 7436.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scC/s350.53"><num value="350.53">§350.53</num><heading>Land Use Classification</heading><content>The person shall determine the current land use of all properties affected with concentrations of COCs which exceed the residential human health assessment levels. Land use shall be determined by comparison of existing land use to the definitions for residential and commercial/industrial land use as specified in §350.4 of this title (relating to Definitions and Acronyms). In the event the land use changes prior to the executive director's approval of the RACR, the PCLs must be protective of that final land use. If off-site property or leased affected property is determined to be commercial/industrial, the person must provide written landowner concurrence for the associated institutional control in accordance with §350.111 of this title (relating to Use of Institutional Controls), unless the property is subject to zoning or governmental ordinance that is equivalent to the deed notice, VCP certificate of completion or restrictive covenant that otherwise would have been required.</content><note type="source"><p>Source Note: The provisions of this §350.53 adopted to be effective September 23, 1999, 24 TexReg 7436.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scC/s350.54"><num value="350.54">§350.54</num><heading>Data Acquisition and Reporting Requirements</heading><content>(a) The person submitting data to the agency is responsible for the quality of the data.(b) The person shall provide data that are of sufficient and documented quality to meet the program and project objectives. The data package, including the supporting quality control data generated by the laboratory, shall be available upon a reasonable request by the agency within and up to three years after submittal of the report. The project data quality objectives should be included in the APAR, unless a response action is self-implemented in which case the project data quality objectives should be included in the RACR. These data quality objectives should include, but are not limited to:(1) the rationale for the sampling design, including the number, type, location and intended use of samples;(2) the levels of required performance (e.g., assessment level, critical PCL, attenuation action level) and the applicable method quantitation limit in accordance with subsection (e)(3) of this section for each COC; and(3) the precision, accuracy, representativeness, comparability, and data completeness objectives for the project.(c) The report shall indicate the type of sample (e.g., composite or discrete sample) that was collected and the method or standard operating procedure by which it was collected. Samples shall represent the environmental media of the affected property being monitored or assessed. Field quality control shall be adequate to demonstrate that the COC is present or absent from the environmental media.(d) The person shall ensure that the laboratory selected to perform the analyses of samples has in place an adequate and documented quality assurance program and the capability to meet the project and measurement objectives. The laboratory's quality assurance program must be compliant with the requirements in Chapter 25 of this title (relating to Environmental Testing Laboratory Accreditation and Certification), as amended, by July 1, 2008. For data generated on or before July 1, 2008, the person shall ensure the laboratory's quality assurance program is consistent with:(1) the International Organization for Standardization (Guide 25: General Requirements for the Competence of Calibration and Testing Laboratories (ISO 25, 3rd edition, 1990)(, as amended, or(2) the quality standards outlined in the National Environmental Laboratory Accreditation Program, as amended.(e) The person shall ensure the data are generated by a laboratory performing the analytical methods that meet the intralaboratory performance standards for the method and that those performance standards are sufficient to meet the bias, precision, sensitivity, representativeness, comparability, and completeness, as specified in the project data quality objectives.(1) The bias of the method may be demonstrated through the use of reference materials, comparison to alternative methods, or spiked samples.(2) The precision of the method may be determined by evaluation of relative standard deviation or the relative percent difference through the use of replicate analyses.(3) In order to address sensitivity requirements, the person shall select a standard available analytical method that provides a method quantitation limit below the necessary level of required performance for purposes of assessment as well as demonstration of conformance with critical PCLs. If it is not possible to achieve a method quantitation limit below the necessary level of required performance, and the COC does not meet the conditions of §350.71(k) of this title (relating to General Requirements), then the person shall select the standard available analytical method that provides the lowest possible method quantitation limit for that COC. The executive director may require that the person demonstrate that a lower method quantitation limit is not achievable or is not practicable, using standard available analytical methods.(4) The method detection limit shall be verified after major instrument maintenance or major changes in instrumentation or instrument conditions. The person shall ensure that the laboratory has performed and has documented an initial demonstration of proficiency for the analysis of each COC and each method used, and has also demonstrated, in a scientifically valid manner, and has documented the method detection limit the laboratory can achieve. This demonstration and documentation shall be preparatory and method specific and include any cleanup method used. The method detection limit should be routinely checked for reasonableness.(5) The representativeness of the method may be demonstrated by the laboratory through the use of proper storage, preparation, and subsampling techniques.(6) The standard available method may either be a documented method from the U. S. EPA, American Society for Testing and Materials, other organizations nationally recognized as having scientifically acceptable methods, or the executive director, or a laboratory method that is completely documented in an appropriate Standard Operating Procedure. All methods derived by a laboratory must meet the quality control criteria recommended in U.S. EPA Test Methods for Evaluation of Solid Waste, Update III, as amended, unless the project and/or samples require less stringent quality control requirements than those recommended in U.S. EPA Test Methods for Evaluation of Solid Waste, Update III, as amended. Such projects or samples which require less stringent quality control shall be clearly identified and the rationale for lower levels of quality control shall be documented.(A) Application of the method shall include the use of instrument calibration that brackets the value reported or includes a low standard that is below the necessary level of required performance, unless the method quantitation limit has been determined to be the necessary level of required performance in accordance with §350.78(c) of this title (relating to Determination of Critical Protective Concentration Levels). The calibration range shall yield results which demonstrate that the sample reporting level has not exceeded the necessary level of required performance after correction for sample weight or volume.(B) Laboratory control samples must be used to demonstrate that the method can produce results for the COCs that meet the bias and precision requirements at or below the necessary level of required performance or at the method quantitation limit in a clean laboratory matrix. The matrix must be similar to the medium of the environmental samples. Results for a sample spike may be substituted for the laboratory control samples, if the bias and precision criteria have been met.(f) The person shall identify any data that may be affected by laboratory deviations from the analytical method or by the laboratory's performance not meeting the project-required and/or method-required quality control acceptance criteria. The person shall also identify any data that may be affected by improper field procedures.(g) The person shall be responsible for having all documentation readily available to demonstrate that the sample integrity has not been compromised and that an appropriate analytical method has been used, and shall provide all reasonable information requested by the executive director.(h) The person shall:(1) report all results (corrected for sample weight or volume, sample preparations, and/or laboratory adjustments) greater than the method detection limit that meet the qualitative identification criteria recommended in the analytical method used, and shall use a qualifier flag on all those results reported as greater than the method detection limit and less than the method quantitation limit; and(2) report all non-detected results as less than the value of the sample detection limit; or(3) report as otherwise requested by the executive director when such reporting as specified in paragraphs (1) and (2) of this subsection is not warranted.(i) When reasonably appropriate, the executive director shall require persons to perform confirmation analysis for tentatively identified compounds.</content><note type="source"><p>Source Note: The provisions of this §350.54 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scC/s350.55"><num value="350.55">§350.55</num><heading>Notification Requirements</heading><content>(a) If in the course of the affected property assessment conducted pursuant to §350.51 of this title (relating to Affected Property Assessment) or in the course of complying with this chapter, a person collects any samples from property they do not own (i.e., leased lands and off-site properties), then the analytical results for those samples and any samples subsequently collected from that property that will be provided to the executive director, shall be made available to the owner of that property. The analytical results of any samples collected at any depth from within an easement/franchise area (e.g., municipal or private utility, right-of-way, etc.) exceeding Tier 1 human health PCLs, which will be provided to the executive director, shall be provided to those current easement holders/franchisees. The information made available shall include at a minimum, all analytical results from the sample analyses along with the critical PCL values for the applicable land use classification. The person shall initially provide a notice of availability no later than at the time of submission of a plan and/or report for executive director review which contains this information. Notices of availability shall be delivered to the chief clerk or city secretary for municipal entities. If an ecological exposure pathway is complete, but final ecological PCLs have not yet been established in accordance with §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels), then the person shall at a minimum provide the critical human health PCLs. Within 30 days of commission approval of the Ecological Risk Assessment (i.e., Tier 2 or 3) which contains the final ecological PCLs that shall be used under Remedy Standards A or B, the person shall make the ecological PCLs available to leaseholders to the extent they are known or obvious, and to the owner of the property where that ecological PCL is the critical PCL. (b) If the person submits other information (i.e., evidence other than samples of environmental media collected from a particular property, such as but not limited to, COC distribution maps) to the executive director which indicates that a COC originating from on-site activities more likely than not exceeds a residential assessment level on property they do not own, then the person shall at a minimum make this information and the critical PCLs for the applicable land use classification available to the owner of the property. The required information shall also be provided to current easement holders/franchisees when there is other information that suggests Tier 1 human health PCLs are exceeded at any depth within an easement/franchise area (e.g., municipal or private utility, right-of-way, etc.). The person shall provide a notice of availability no later than at the time of submission of a plan and/or report for executive director review which contains this information. Notices of availability shall be delivered to the chief clerk or city secretary for municipal entities. If an ecological exposure pathway is complete, but final ecological PCLs have not yet been established in accordance with §350.77 of this title, then the person shall at a minimum provide the critical human health PCLs. Within 30 days of commission approval of the Ecological Risk Assessment (i.e., Tier 2 or 3) which contains the final ecological PCLs that shall be used under Remedy Standard A or B, the person shall make the ecological PCLs available to leaseholders to the extent they are known or obvious, and to the owner of the property where that ecological PCL becomes the critical PCL. (c) The person shall provide notice of the availability of historical information (i.e., actual sampling and analysis data collected on the property described in subsections (a) and (b) of this section prior to these rules being applicable to that property) to the parties listed in subsections (a) and (b) of this section, as applicable, at the time of submission of the first plan and/or report which includes this same historical information to the executive director for review under this rule. (d) When subsections (a), (b), or (c) of this section require information to be made available, the notice of availability shall indicate that information is available regarding environmental sample analysis results for the specific property, what information is available, and how to obtain that information (e.g., submit written request to identified contact point). Persons may use legible signs located in readily visible locations to provide notice when the use of signs provides effective notice of the availability of information. If signs are used, the person shall post and maintain the sign for a minimum of 180 consecutive days. To document that all required notices have been completed, the person shall provide a notarized statement of such fact including the names and addresses of persons receiving direct notice such as mail, personal contact, public meeting, fliers, etc., if any, to the executive director which is signed by the person or their appropriate authorized agent certifying that the required notifications have been completed. The notarized statement is to be provided to the executive director within 60 calendar days of the date the notices are due, and may be included within any report submitted under this chapter that is to be submitted within this same time period. The person shall keep on file information which documents that notice was completed for a minimum of five years following the issuance of a no further action letter in accordance with §350.34(1) or (3) of this title (relating to No Further Action) for the affected property. The person shall provide the information which documents notice was completed when requested by the executive director. If the executive director determines that the notice was not sufficient (e.g., it is not factual or clear, or not all appropriate parties were notified) then the person shall complete the notice in a sufficient manner. (e) When there is an actual or probable human exposure to a COC at a concentration which exceeds the Tier 1 human health PCL (e.g., not GWSoil in this instance) established in accordance with Subchapter D of this chapter (relating to Development of Protective Concentration Levels) for the applicable land use and exposure pathways (e.g, direct contact to soils with concentrations of COCs exceeding the TotSoilComb PCL, or ingestion of groundwater with concentrations of COCs exceeding the GWGWIng PCL, but not including GW Soil), the person shall: (1) provide notice, as soon as possible, but no later than 60 calendar days from receipt of the laboratory analysis from the performing laboratory, to those actually or probably exposed, the property owner, and the executive director. The determination of those who could be exposed shall consider at a minimum tenants and leaseholders; human activity patterns at the affected property; presence of any areas of congregation or recreation such as but not limited to playgrounds, natural areas, or green belts, or break areas; the distribution and concentration of COCs; conditions of any structures which may allow or prevent exposure to COC in soils, water or vapors; and the source of drinking water. As new information becomes available which indicates that additional parties could be exposed, then those additional parties and the executive director shall be notified as soon as possible, but not later than 14 days of the date actual or probable exposure is determined; unless the actual or probable exposure was determined by additional sampling results in which case notice must occur no later than 60 days from the date of receipt of the laboratory analyses from the performing laboratory. (2) ensure that the notice indicates that information is available regarding environmental sample analysis results for the specific property, that exposure to COCs is possible given existing conditions, the critical human health PCLs (Tier 1, 2, or 3), how the exposure could be occurring, that more information is available upon request, what that additional information is, and how to obtain the additional information (e.g., submit written request to contact point). (3) use and maintain legible signs to provide public notice in instances where potential exposure for publically accessible areas such as playgrounds or other similar situations may occur. The person shall maintain the sign so long as the actual or probable exposure conditions exist. (4) document that all required notices have been completed by providing a notarized statement of such fact including the names and addresses of persons receiving direct notice such as mail, personal contact, public meeting, fliers, etc., if any, and to the executive director which is signed by the person or their appropriate authorized agent certifying that the required notifications have been completed. The certification is to be provided to the executive director within 30 calendar days of the date the notices are due, or within a report to be submitted under this chapter within this same time period. The persons shall keep on file information which documents that notice was completed for a minimum of five years following the issuance of a no further action letter in accordance with §350.34(1) or (3) of this title for the affected property. The person shall provide the information which documents notice was completed when requested by the executive director. If the executive director determines that the notice was not sufficient (e.g., it is not factual or clear, or not all appropriate parties were notified), then the person shall complete the notice in a sufficient manner. (f) Once a party identified in subsections (a), (b), or (c) of this section provides a written request for the information required to be made available in subsections (a), (b), or (c) of this section from the person providing the notice and at the address provided in the notice, the person must deliver the information to the requestor within 14 calendar days of the date of receipt of the request.</content><note type="source"><p>Source Note: The provisions of this §350.55 adopted to be effective September 23, 1999, 24 TexReg 7436.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c350/scD"><num value="D">SUBCHAPTER D</num><heading>DEVELOPMENT OF PROTECTIVE CONCENTRATION LEVELS</heading><section identifier="/us/state/tx/tac/t30/p1/c350/scD/s350.71"><num value="350.71">§350.71</num><heading>General Requirements</heading><content>(a) This subchapter describes separate tiered processes for establishing protective concentration levels of COCs that can remain in the source medium and be protective of human and ecological receptors at the point of exposure within the exposure medium. The tiered process for the calculation of human health protective concentration levels (PCLs) is set forth in §350.75 of this title (relating to Tiered Human Health Protective Concentration Level Evaluation) and is structured conceptually in terms of Tiers 1, 2, and 3. Each tier sets forth conditions to calculate PCLs and each successive tier incrementally provides for more consideration of site-specificity and sophistication in the PCL calculation process. The person can move through the tiered process or start at any tier, but must conduct the cumulative check in accordance with §350.72(b) of this title (relating to Carcinogenic Risk Levels and Hazard Indices for Human Health Exposure Pathways). The human health PCLs under Tiers 1, 2 and 3 are set based on the receptors and exposure pathways as specified in subsections (b) and (c) of this section in consideration of the land use classification of the affected property, the classification of groundwater, the distribution of COCs in environmental media, and the presence of receptors. The tiered process for ecological evaluations is different. Tier 1 is an exclusion criteria checklist that is used to exclude sites which do not pose potential ecological risk from further evaluation. If a site is not excluded from Tier 1, then the person must further evaluate the site for ecological risk, and possibly establish ecological PCLs are under Tiers 2 or 3. The lowest of the human health and any applicable ecological PCLs determined for each COC for the soil, groundwater, surface water, sediment, or air as required, and are then respectively compared with representative concentrations of COCs in the soil, groundwater, surface water, sediment, or air as appropriate to determine if the PCLs are exceeded or not. If PCLs are exceeded for certain COCs, then PCLs may be further evaluated under the respective tiered process and compared again to representative site concentrations to determine if further action is needed; otherwise a response action must be initiated. No further action is required for those COCs which do not exceed the PCLs, and the cumulative criteria of §350.72(b) of this title.(b) The person shall:(1) ensure PCLs are protective of human health and the environment;(2) determine human health PCLs based on residential or commercial/industrial exposure as appropriate for the land use of each affected on-site and off-site property;(3) assume the human receptor is a resident for residential property; and(4) assume the human receptor is a commercial/industrial worker for commercial/industrial property.(c) The person shall develop PCLs for each of the following human health exposure pathways which are complete or reasonably anticipated to be completed based on the provided criteria.(1) Ingestion of COCs in class 1 or 2 groundwater. The person shall consider the ingestion of COCs in class 1 or 2 groundwater to be a complete or reasonably anticipated to be completed exposure pathway when class 1 or 2 groundwater is affected.(2) COCs in class 3 groundwater. The person shall establish PCLs for class 3 groundwater as necessary to protect human health and safety, and the environment, and to comply with the groundwater response objectives in accordance with Subchapter B of this chapter (relating to Remedy Standards).(3) Inhalation of volatile emissions in outdoor air from COCs in groundwater-bearing units. The person shall at a minimum consider this to be a complete or reasonably anticipated to be completed exposure pathway when a plume management zone is established in accordance with §350.33(f) of this title (relating to Remedy Standard B) unless the person:(A) demonstrates with representative and appropriate vapor monitoring data or other technically appropriate method that volatile emissions from groundwater are protective; or(B) otherwise demonstrates that the pathway is incomplete at the affected property. A competent, existing physical control which prevents the release of COCs from groundwater into air above the PCLs may be considered in accordance with subsection (d) of this section.(4) Combined inhalation of volatile emissions and particulates from COCs in surface soil, dermal contact with COCs in surface soil, ingestion of COCs in surface soil, and for affected residential properties, ingestion of above and below-ground vegetables grown in surface soils containing COCs. Other than within a waste control unit, the person shall consider this combined exposure pathway to be a complete or reasonably anticipated to be completed exposure pathway; however, competent existing physical controls may be considered in accordance with subsection (d) of this section.(5) Leaching of COCs in surface and subsurface soils to groundwater. The person shall consider this to be a complete or reasonably anticipated to be completed exposure pathway; however, a competent existing physical control which prevents the release of COCs from soils to groundwater above the PCLs may be considered in accordance with subsection (d) of this section.(6) Inhalation of volatile emissions from COCs in subsurface soils. Other than below a waste control unit, the person shall consider this to be a complete or reasonably anticipated to be completed exposure pathway unless the person demonstrates with representative and appropriate vapor monitoring data, or other technically appropriate method that the exposure pathway is incomplete. A competent existing physical control which prevents the release of COCs from subsurface soils to air above the PCLs may be considered in accordance with subsection (d) of this section.(7) Contact with surface water or sediment containing COCs originating from the source area. The person shall evaluate this exposure pathway to determine if it is a complete or reasonably anticipated to be completed exposure pathway when a COC has been discharged or will discharge to a surface water body or sediment.(8) Other complete or reasonably anticipated to be completed exposure pathways. The person shall reasonably evaluate other potentially applicable exposure pathways and identify the ones which are complete or are reasonably anticipated to be completed.(d) In accordance with subsection (c)(3) - (6) of this section, and §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels), the presence of a competent existing physical control which prevents the exposure of receptors to COCs may be considered as sufficient proof that the exposure pathway is incomplete for the geographic area covered by the control when the person is able and willing to incorporate that physical control as a Remedy Standard B response action meeting all associated performance, institutional control, and post-response action care requirements, including financial assurance, for that physical control. The existing physical control shall not be considered to be a remedy for or remove the exposure pathway from consideration for the geographic area which extends beyond the existing limits of the competent existing physical control. Consideration of physical controls during the exposure pathway analysis does not negate or otherwise supercede the soil or groundwater response objectives as set forth in Subchapter B of this chapter (relating to Remedy Standards).(e) The person shall establish the human health POE(s) for each environmental media in accordance with §350.37 of this title (relating to Human Health Points of Exposure). Consideration of physical controls during the exposure pathway analysis does not negate or otherwise supercede the POE criteria of §350.37 of this title.(f) The person shall establish the risk-based exposure limits in accordance with §350.74 of this title (relating to Development of Risk-Based Exposure Limits) when establishing PCLs.(g) For COCs which have both carcinogenic and noncarcinogenic effects for an exposure pathway, the person shall establish separate PCLs for both carcinogenic and noncarcinogenic effects for the individual and combined exposure pathways. The person shall then use the lower of the carcinogenic or noncarcinogenic PCL for that COC and exposure pathway.(h) The person shall ensure that PCLs developed are protective for both on-site and off-site human receptors at the carcinogenic risk levels and hazard quotient and index as specified in §350.72 of this title (relating to Carcinogenic Risk Levels and Hazard Indices for Human Health Exposure Pathways), as well as for applicable ecological receptors.(i) The person shall establish critical PCLs in accordance with §350.78 of this title (relating to Determination of Critical Protective Concentration Levels).(j) The person is not required to combine exposure pathways across source media (e.g., soil exposure pathways combined with groundwater exposure pathways) unless the executive director determines such combination is necessary to address actual situations where receptors are simultaneously exposed to COCs present in multiple source media.(k) For Tiers 1, 2, and 3 as explained in §350.75 of this title (relating to Tiered Human Health Protective Concentration Level Evaluation) and §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels), the person shall establish PCLs for each individual COC within each environmental medium unless the conditions of paragraphs (1), (2), (3), or (4) of this subsection are met or unless the use of paragraphs (1), (2), (3), or (4) of this subsection is prohibited by the individual program area listed in §350.2 of this title (relating to Applicability). For the purposes of determining whether a COC meets the conditions of paragraphs (1), (2), (3), or (4) of this subsection, a COC should be considered detected in a particular environmental medium if the analytical measurement is greater than the method detection limit and the analytical response meets the qualitative identification criteria recommended in the analytical method.(1) The COC is detected in at least one sample, but all detected COC concentrations and sample detection limits for the COC are less than the residential assessment level in the environmental medium being evaluated under this paragraph, as well as in all other environmental media from which samples were collected.(2) The COC is detected in at least one sample in the environmental medium, but the conditions described in one of subparagraphs (A) - (E) of this paragraph are met and all nondetected results for the COC are less than the residential assessment level in the environmental medium being evaluated under this paragraph.(A) The COC meets all of the conditions in the following clauses (i) - (iii) of this subparagraph:(i) twenty or more representative samples analyzed for that COC have been collected from the environmental medium evaluated under this subparagraph;(ii) the COC is detected in less than 5% of the twenty or more samples required in clause (i) of this subparagraph; and(iii) the executive director determines that a PCL is not warranted for the COC in order to protect human health and the environment in consideration of, but not limited to, the concentration and distribution of the COC in environmental media, source area information, knowledge of on-site historical operations, characteristics of the COC and the affected property, and companion and daughter product relationships to the COC.(B) The COC is a common laboratory contaminant (i.e., methylene chloride, acetone, toluene, 2-butanone (methyl ethyl ketone), dimethyl phthalate, diethyl phthalate, di-n-butyl phthalate, butylbenzyl phthalate, bis (2-ethylhexyl) phthalate, and di-n-octyl phthalate), and the concentration of the COC detected in each sample for that environmental medium does not exceed 10 times the maximum amount detected in any associated blank, and the COC is not anticipated to be present based on knowledge of on-site historical operations including consideration of companion and daughter products.(C) The COC is not a common laboratory contaminant, as defined in subparagraph (B) of this paragraph, and the concentration of the COC detected in each sample for that environmental medium does not exceed five times the maximum amount detected in any associated blank, and the COC is not anticipated to be present based on knowledge of on-site historical operations including consideration of companion and daughter products.(D) The maximum concentration of the COC detected at the affected property does not exceed the property-specific or Texas-specific background concentration as specified in Figure: 30 TAC §350.51(m). For the purpose of determining whether the COC meets the conditions of this paragraph, the person shall consider the maximum concentration of the COC to be the higher of the maximum detected concentration or the appropriate proxy value as determined in accordance with §350.51(n) of this title (relating to Affected Property Assessment).(E) The person sufficiently demonstrates that the release of COCs did not result from activity at the on-site property based on appropriate evidence, including, but not limited to, the concentration and distribution of the COC in environmental media, source area information, consideration of companion and daughter products, and knowledge of on-site historical operations.(3) The COC is known or is reasonably anticipated to be associated with historical or current activities conducted at the on-site property, but the COC is not detected in any sample in the environmental medium, and all sample detection limits for the COC are less than the residential assessment level for the environmental medium.(4) The COC is not known or is not reasonably anticipated to be associated with historical or current activities conducted at the on-site property, and is not detected in any sample in the environmental medium.</content><note type="source"><p>Source Note: The provisions of this §350.71 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scD/s350.72"><num value="350.72">§350.72</num><heading>Carcinogenic Risk Levels and Hazard Indices for Human Health Exposure Pathways</heading><content>(a) The person shall base the RBELs developed in accordance with §350.74 of this title (relating to Development of Risk-Based Exposure Limits) and the PCLs developed in accordance with §350.75 of this title (relating to Tiered Human Health Protective Concentration Level Evaluation) on the following carcinogenic risk level and hazard quotient. (1) Carcinogenic COCs. The RBEL and PCL for each carcinogenic COC, including those PCLs based on combined exposure pathways, shall be based on a carcinogenic risk level of 1 x 10-5 (1 in 100,000) except when other standards shall be used as RBELs as discussed in §350.74 of this title (relating to Development of Risk-Based Exposure Limits). (2) Noncarcinogenic COCs. The RBEL and PCL for each noncarcinogenic COC, including those PCLs based on combined exposure pathways, shall be based on a hazard quotient of 1 except when other standards shall be used as RBELs as discussed in §350.74 of this title (relating to Development of Risk-Based Exposure Limits). (b) The person shall evaluate whether the PCLs for a human health exposure pathway need to be adjusted to lower concentrations to meet the cumulative carcinogenic risk level and hazard index criteria in subsection (c) of this section when there are more than 10 carcinogenic COCs and/or more than 10 noncarcinogenic COCs within a source medium. The person shall conduct this evaluation separately for each individual and combined human health exposure pathway for which PCLs must be developed in accordance with §350.71(c) of this title (relating to General Requirements). This cumulative evaluation shall include all COCs across all tiers for which the person is required to establish PCLs in accordance with §350.71(k) of this title. In cases where 10 or more carcinogenic COCs and 10 or more noncarcinogenic COCs are present in the source medium, the cumulative evaluation shall be conducted for both carcinogenic COCs and noncarcinogenic COCs by separately addressing the cumulative effects of multiple carcinogenic COCs and multiple noncarcinogenic COCs. The COCs which exhibit both carcinogenic and noncarcinogenic characteristics shall be counted as both a carcinogenic COC and a noncarcinogenic COC and evaluated as required by this subsection. This evaluation shall be modified as specified in paragraphs (1)-(5) of this subsection. (1) For the groundwater ingestion exposure pathway, the person shall not include COCs with a primary maximum contaminant level (MCL) as provided in 40 Code of Federal Regulations Part 141, as amended, or the most currently available federal action level for drinking water (e.g., lead and copper) in the cumulative carcinogenic risk level or hazard index evaluation when that MCL or action level is the groundwater ingestion PCL. The person is also not required to include COCs with a secondary MCL as provided in 40 Code of Federal Regulations Part 143, as amended, in the cumulative carcinogenic risk level or hazard index evaluation when the secondary MCL is used as the groundwater PCL and is based on a RBEL established in accordance with §350.74(f)(3) of this title (relating to Development of Risk- Based Exposure Limits) for that COC. (2) The person is not required to comply with subsection (c) of this section for the class 3 groundwater PCL GW GWClass 3 . (3) The person is not required to conduct an additional cumulative check in accordance with subsection (c) of this section for the soil-to-groundwater PCL GW Soil. The cumulative check is already addressed when establishing GW Soil to meet the groundwater PCLs which have been adjusted to comply with the criteria specified in subsection (c) of this section. (4) The person is not required to comply with subsection (c) of this section for the groundwater-to-surface water PCL SW GW. (5) The person shall not include the PCL established in §350.76 of this title (relating to Approaches for Specific Chemicals of Concern to Determine Human Health Protective Concentration Levels) for lead, dioxins, or polychlorinated biphenyls (only exclude polychlorinated biphenyls when the soil PCL is based on requirements of the Toxic Substances Control Act as specified in §350.76(d)(4) of this title) in soil in the cumulative carcinogenic and hazard index evaluation. (c) The person shall use the following criteria for the cumulative carcinogenic risk level and hazard index when determining if the evaluation in subsection (b) of this section requires PCLs for individual COCs to be adjusted to a lower concentration. (1) Carcinogenic COCs. The cumulative carcinogenic risk level for multiple carcinogenic COCs shall not exceed 1 x 10 -4 . (2) Noncarcinogenic COCs. The hazard index for multiple noncarcinogenic COCs shall not exceed 10. (d) The person shall use the equation in the following figure to adjust PCLs to a lower concentration as required in subsection (b) of this section to achieve the cumulative carcinogenic risk level or hazard index established in subsection (c) of this section. The person shall adjust the PCL for one or more COCs to a lower concentration (carcinogens and noncarcinogens are treated separately) such that the conditions of the equation are met. The person shall choose which PCLs are adjusted downward and the magnitude of the reduction. The PCLi shall remain constant in the denominator. The PCL- adji , which is the final human health PCL for a particular COC and exposure pathway, shall be less than or equal to PCLi . Attached Graphic</content><note type="source"><p>Source Note: The provisions of this §350.72 adopted to be effective September 23, 1999, 24 TexReg 7436.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scD/s350.73"><num value="350.73">§350.73</num><heading>Determination and Use of Human Toxicity Factors and Chemical Properties</heading><content>(a) In all cases, the toxicity factors used must be protective of human health and the environment. The person shall use the chronic human toxicity factors taken from the following hierarchy of sources (unless otherwise specified in §350.76 of this title (relating to Approaches for Specific Chemicals of Concern to Determine Human Health Protective Concentration Levels)) unless the specific provision contained in subsection (b) of this section applies. The person shall use the source in paragraph (1) of this subsection and only if the relevant chronic human toxicity factor is not available in that source, proceed to the source in paragraph (2) of this section and, only if the toxicity factor is not available in that source, proceed in the same fashion through sources in paragraphs (3) - (7) of this subsection. The chronic human toxicity factors, in order of hierarchy of sources in paragraphs (1) - (7) of this subsection, which are most current as of the submittal date of the SIN or the RAP are presumed to be protective of human health and the environment, unless a person rebuts this presumption by published credible authority. In addition, the executive director may determine during review of the RACR that a change in a toxicity factor since the submittal of the SIN or RAP has been of such a magnitude that the PCLs previously developed for a COC would clearly not be protective of human health and the environment, then the adequacy of the response action must be reevaluated. Likewise, if the executive director determines at any time that a subsequent change in a toxicity factor is of such a magnitude such that the proposed response action is no longer warranted to protect human health and the environment, then a response action based on that previous chronic toxicity factor consideration shall no longer be required. (1) United States Environmental Protection Agency (EPA) Integrated Risk Information System (IRIS); (2) EPA Provisional Peer Reviewed Toxicity Values (i.e., Superfund Health Risk Technical Support Center; (3) EPA Health Effects Assessment Summary Tables; (4) EPA National Center for Environmental Assessment (i.e., Superfund Technical Support Center); (5) the TCEQ Chronic Remediation-Specific Effects Screening Levels; (6) Agency for Toxic Substances and Disease Registry; and (7) other scientifically valid sources as approved by the executive director. (b) The executive director may direct a person to use a chronic human toxicity factor from a source other than that selected in accordance with the source hierarchy list provided in subsection (a) of this section in cases where the executive director has determined it to be necessary to use a more scientifically valid chronic human toxicity factor than that from the source identified in accordance with subsection (a) of this section. (c) If the executive director determines that it is necessary to evaluate COCs which do not have any human chronic toxicity factors provided in the sources listed in subsection (a) of this section, then the executive director will provide chronic toxicity factors. The person may provide toxicological information to the executive director for consideration in the derivation of the chronic toxicity factors. The person shall provide all toxicological data from any toxicological studies conducted for the person when such information is requested by the executive director. The person shall use the TCEQ Chronic Remediation-Specific Effects Screening Level value as the reference concentration in evaluating the inhalation pathway for both residential and commercial/industrial land use in accordance with §350.75(i)(3), (6) and (8) of this title (relating to Tiered Human Health Protective Concentration Level Evaluation), and all chronic inhalation exposure pathways for which PCLs are established in accordance with §350.75(i)(5) and (11) of this title, but only in cases where neither an EPA unit risk factor nor an EPA reference concentration is available for that COC from the hierarchy list provided in subsection (a) of this section, and the executive director has not directed the person to use a toxicity factor in accordance with subsection (b) of this section. (d) Unless prior approval is provided by the executive director in accordance with §350.74(j)(2) of this title (relating to Development of Risk-Based Exposure Limits) to use a subchronic exposure duration (i.e., < nyears) for a commercial/industrial property, the person shall not use subchronic toxicity factors. (e) In the situation where different reference doses have been established for a COC based on water ingestion and food consumption, the person shall use the reference dose for water ingestion for the water ingestion exposure pathway and the reference dose for food consumption for all soil exposure pathways. (f) The person shall use the COC chemical/physical parameter values for COCs provided in the following figure to calculate PCLs, unless the executive director approves the use of a more representative alternative value in accordance with paragraphs (1) and (2) of this subsection. For those COCs not included in the figure in this subsection, the person may provide chemical/physical information to the executive director for consideration in developing appropriate chemical/physical parameters. Attached Graphic(1) For Tiers 2 and 3, the person may determine property-specific soil pH in order to account for the high pH dependence of the soil-water partition coefficient (Kd ) of inorganic compounds and the organic carbon-water partition coefficient (Koc ) of ionizing organic compounds. Once the property-specific pH is determined, the person shall apply subparagraphs (A) - (C) of this paragraph as applicable to determine pH-dependent Kd and K oc values unless another appropriate method is approved by the executive director. The executive director may also approve the use of data from appropriately-conducted tests in determining a site-specific Kd or Koc . (A) For aluminum and lead, the person shall select a Kd from the following figure in accordance with the pH range and the total weight percent of clay, organic matter, iron, and aluminum oxyhydroxide representative of the affected property soils. Attached Graphic(B) The person shall use the following figure to determine the pH-dependent Koc value for the ionizing organic COCs listed. Attached Graphic(C) The person shall use the following figure to determine the pH-dependent Kd value for the inorganic COCs listed. Attached Graphic(2) For Tiers 2 and 3, the person may establish alternate soil-to-plant biotransfer factors (Brabg and Br bg ) by establishing the pH of the soil and the soil type, and then identifying a biotransfer factor in the published literature appropriate for those soil conditions. Alternatively, the person can measure the biotransfer factor in accordance with procedures acceptable to the executive director.</content><note type="source"><p>Source Note: The provisions of this §350.73 adopted to be effective September 23, 1999, 24 TexReg 7436 ; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scD/s350.74"><num value="350.74">§350.74</num><heading>Development of Risk-Based Exposure Limits</heading><content>(a) General requirement. The person shall use the criteria provided in subsections (b) - (j) of this section and the risk-based exposure limit (RBEL) equations provided in the following figures, as applicable, to establish RBELs appropriate for the type of chemical of concern (COC), the complete and reasonably anticipated to be completed exposure pathways, receptors, and land uses. The person shall establish RBELs for carcinogenic COCs and noncarcinogenic COCs using the default exposure factors provided in the following figure for residents and commercial/industrial workers, unless the executive director approves the use of alternate exposure factors in accordance with subsection (j) of this section.Attached Graphic(b) Air inhalation RBEL. The air inhalation RBEL (Air RBELInh ) is the protective concentration of a COC in air at the point of exposure (POE) for human inhalation.(1) Under Tiers 2 and 3 as described in §350.75 of this title (relating to Tiered Human Health Protective Concentration Level Evaluation), the person may use the lower of available eight-hour time-weighted average occupational inhalation criteria (i.e., Occupational Safety and Health Administration Permissible Exposure Limits, or American Conference of Governmental Industrial Hygienists Threshold Limit Values), as Air RBELInh for inhalation pathways for commercial/industrial workers within the limits of affected commercial/industrial properties which have a health and safety plan in place. The health and safety plan shall be designed to ensure compliance with the applicable occupational inhalation criteria and require the monitoring of COC levels in the working air environment, and specify actions that will be taken in the event of exceedance of the occupational inhalation criteria. When occupational inhalation criteria are used, the person shall provide documentation of the health and safety plan, certify that the plan is followed, and demonstrate that the off-site receptors are protected as required by §350.71(h) of this title (relating to General Requirements). The use of occupational inhalation criteria as RBELs shall require the person to comply with the institutional control requirements in §350.111(b) and (b)(14) of this title (relating to Use of Institutional Controls).(2) The air RBELs may not exceed any other applicable federal or state air quality standards.(c) Soil dermal contact RBEL. The soil dermal contact RBEL (Soil RBELDerm ) is the protective concentration of a COC at the POE in soil based upon direct dermal contact to soil by humans. The soil dermal contact RBEL shall also be based on COC-specific values for dermal absorption fraction (ABS.d) and gastrointestinal absorption fraction (ABSGI ) provided in the following figure, unless the executive director approves the use of alternate ABS.d and ABSGI values in accordance with subsection (j)(1)(A) and (B) of this section. It is not necessary to calculate a soil dermal contact RBEL for COCs with vapor pressure in mm of Hg greater than or equal to 1.Attached Graphic(d) Soil ingestion RBEL. The soil ingestion RBEL (Soil RBELIng ) is protective concentration of a COC at the POE in soil based upon human ingestion.(e) Vegetable ingestion RBELs. The vegetable RBELs (AbgVeg RBELIng and BgVeg RBELIng ) are the protective concentration of a COC in aboveground vegetables and below-ground vegetables, respectively, for ingestion by residents. The person shall establish RBELs for ingestion of aboveground vegetables for all carcinogenic and noncarcinogenic COCs which are metals. In addition, the person shall establish RBELs for ingestion of below-ground vegetables for all carcinogenic and noncarcinogenic COCs with a dimensionless Henry's Law Constant less than 0.03, as shown in the figure in §350.73(f) of this title (relating to Determination and Use of Human Toxicity Factors and Chemical Properties), when either of the following criteria are met:(1) the COC is a metal; or(2) the COC has a logarithmic octanol-water partition coefficient (Log Kow ) greater than four as shown in the figure in §350.73(f) of this title ; or(f) Groundwater ingestion RBEL.(1) The groundwater ingestion RBEL ( GW RBELIng ) is the protective concentration of a COC at the POE in groundwater based upon human ingestion of groundwater. However, if available, the person shall use the lower of the two values established under paragraphs (2) and (3) of this subsection instead.(2) The person shall use the primary maximum contaminant level (MCL) as provided in 40 Code of Federal Regulations (CFR) Part 141, as amended, or the most currently available federal action level for drinking water (e.g., lead and copper) as the RBEL when available for the COC.(3) The person shall use the secondary MCLs established for individual COCs as provided in 40 CFR Part 143, as amended, as RBELs, or other scientifically valid published criteria in cases where COCs are present at concentrations which present objectionable characteristics such as taste or odor (e.g., methyl tertiary butyl ether) under the following circumstances:(A) when the COCs are present in class 1 groundwater;(B) when the COCs are present in class 2 groundwater that is within 1/2 mile of a well used to supply drinking water and is also within or is likely to migrate, based upon the chemical properties of the COCs and the hydrogeology, to the groundwater production zone of such drinking water supply well; or(C) when the COCs are present in class 2 groundwater and there are no alternative water supplies available.(g) Class 3 groundwater RBEL. The class 3 groundwater RBEL (GW RBELClass 3 ) is the acceptable concentration of a COC at the POE in class 3 groundwater.(h) Surface water RBEL. The surface water RBEL (SW RBEL) is the protective concentration of a COC at the POE in surface water. To establish SW RBEL for a COC, the person shall determine the lowest value from paragraphs (1) - (5) of this subsection for each COC, unless the person has sufficient surface water quality information specific to the particular surface water body to support an adjustment to the RBEL in accordance with paragraph (6) of this subsection. The SW RBEL value determined pursuant to paragraphs (1) - (6) of this subsection may require modification in response to the requirements of paragraphs (7) and (8) of this subsection. TheSW RBEL value for a given COC shall be protective of relevant downgradient water bodies in consideration of the water body use (e.g., designated drinking water supply or sustainable fishery), the water body type (e.g., estuary or perennial freshwater stream), the standards applicable to the type of water body/use, and the fate and transport characteristics of the COC in question at the particular affected property.(1) The person shall apply the lower of the acute or chronic criteria for fresh or marine waters as applicable, based on the classification of the surface water, to protect aquatic life as provided in §307.6, Table 1 of this title (relating to Toxic Materials), as amended. The person shall determine the applicability of aquatic life criteria related to the water body aquatic life use and flow conditions in accordance with the procedures contained in §§307.3, 307.4, and 307.6 of this title (relating to Definitions and Abbreviations; General Criteria; and Toxic Materials, respectively), and the agency's Implementation Procedures, as amended, as defined in §350.4 of this title (relating to Definitions and Acronyms), as amended. For fresh waters, the person shall calculate aquatic life criteria for metals with hardness-dependent criteria using the hardness value for the nearest downstream classified segment, as listed in the agency's Implementation Procedures, as amended. Where no value is provided in the Implementation Procedures, a hardness value of 50 mg/l CaCO3 shall be used. When applicable, the person shall convert total metal concentrations in surface water or groundwater to dissolved concentrations as described in the agency's Implementation Procedures, as amended. The person may use the basin-specific pH values provided in §307.6, Table 2 of this title, as amended, relevant to the particular affected property for purposes of determining the appropriate values for the pH dependent criteria. The person shall use the total suspended solids concentration for the nearest classified segment, as listed in the agency's Implementation Procedures, as amended.(2) The person shall apply the human health criteria to protect drinking water and fisheries as provided in Table 3 of §307.6 of this title, as amended. When applicable, the person shall convert total metal concentrations in surface water or groundwater to dissolved concentrations as described in the agency's Implementation Procedures, as amended. The person shall determine the applicability of human health criteria according to the water body uses (e.g., public water supply, sustainable fishery, incidental fishery, and contact recreation) in accordance with the procedures contained in §307.3 and §307.6 of this title, as amended, and the Implementation Procedures, as amended. When a water body is not being evaluated as a drinking water source, the person must determine the necessity to evaluate exposure pathways associated with contact recreation such as incidental ingestion of surface water and dermal contact with surface water. The person shall use the total suspended solids concentration for the nearest classified segment, as listed in the agency's Implementation Procedures, as amended.(3) The person shall apply the effluent limitations specified in Texas Pollutant Discharge Elimination System (TPDES) General Permit Number TXG830000, as amended, for any release of groundwater or storm water that has been impacted by petroleum fuel (as defined in the general permit).(4) The person shall apply United States Environmental Protection Agency guidelines or alternate provisions in accordance with §307.6(c)(7) of this title, as amended, when criteria for aquatic life protection are not provided for a COC in §307.6 of this title, Table 1, as amended. In addition, the person shall apply federal guidance criteria (i.e., lower of a federal numerical criterion, MCL, or equivalent state drinking water guideline) or alternate provisions in accordance with §307.6(d)(8) of this title, as amended, when human health criteria for a COC are not provided in Table 3 of §307.6 of this title, as amended.(5) The person shall apply the numerical criteria, as appropriate, for chlorides, sulfates, total dissolved solids, and pH for classified segments as specified in §307.10(1) of this title (relating to Appendices A - G ), as amended.(6) The person may apply additional provisions where data on surface water quality for a specific surface water body at the affected property is available or can be reasonably obtained.(A) The person may determine property-specific hardness, based on sampling data, for calculating metals criteria in accordance with the procedures contained in the agency's Implementation Procedures, as amended.(B) The person may determine property-specific total suspended solids, based on sampling data, for estimating ''dissolved'' metals in accordance with the Implementation Procedures, as amended.(C) The person may determine the actual pH of the particular surface water body at the affected property.(7) The additional numeric and narrative criteria listed in subparagraphs (A) and (B) of this paragraph may require development of a surface water RBEL (e.g., where a nutrient is a COC) or modification to the surface water RBEL (e.g., lower a RBEL value to minimize foaming on the water's surface) determined pursuant to paragraphs (1) - (5) of this subsection.(A) General criteria related to aesthetic parameters, nutrient parameters, and salinity in accordance with §307.4(b), (e), and (g) of this title , as amended.(B) General provisions related to the preclusion of adverse toxic effects on aquatic and terrestrial life, livestock, or domestic animals in accordance with §307.6(b) of this title, as amended.(8) If the executive director determines that the release has the potential to lower the surface water dissolved oxygen, then the executive director may require the person to apply the dissolved oxygen criteria for classified segments specified in §307.10(1) of this title, as amended, or the dissolved oxygen criteria for unclassified waters specified in §307.10(4) of this title, as amended, §307.4(h) of this title, as amended, and §307.7(b)(3)(A) of this title (relating to Site Specific Uses and Criteria), as amended.(i) Aesthetics. For COCs for which a RBEL cannot be calculated by the procedures of this section, or the RBEL concentration for the COC otherwise adversely impacts environmental quality or public welfare and safety, presents objectionable characteristics (e.g., taste, odor), or makes a natural resource unfit for use, the person shall comply with paragraphs (1) - (3) of this subsection as appropriate. For response actions which are triggered for an area solely for purposes of this subsection (i.e., there is no other human health or ecological hazard remaining), the executive director will evaluate the seriousness, probable longevity of the matter, and suitability of the proposed remedy with the landowner in order to site-specifically determine whether or not institutional controls and financial assurance are warranted. The person shall provide all information reasonably necessary to support such a determination to the executive director. The default presumption is that financial assurance and institutional controls are required for exposure prevention remedies. If the executive director determines that institutional controls and financial assurance are not warranted, then persons shall not be required to comply with the provisions of §§350.31(g), 350.33(e)(2)(C) and 350.111(b)(3) or (6) of this title (relating to General Requirements for Remedy Standards; Remedy Standard B; and Use of Institutional Controls), specifically relating to the physical control matters for the portion of affected property with the aesthetics issue.(1) In accordance with §101.4 of this title (relating to Nuisance), as amended, the person may be required by the executive director to address COCs which present objectionable odors.(2) The maximum total soil concentration of COCs which are liquid at standard temperature and pressure shall not exceed 10,000 mg/kg within the soil interval of 0 - 10 feet, unless it can be demonstrated that:(A) no free liquids (e.g., no mobile NAPL) or sludges exist; or(B) higher concentrations do not adversely impair surface use of the affected property.(3) Other scientifically valid published criteria such as, but not limited to, non-COC specific secondary MCLs for water may be required by the executive director to be used as the RBEL.(j) Requirements for variance to default RBEL exposure factors.(1) Under Tiers 2 or 3 as provided in §350.75 of this title (relating to Tiered Human Health Protective Concentration Level Evaluation) and with prior executive director approval, the person may vary the following default exposure factors shown in the figures in subsections (a) and (c) of this section based on conditions or exposure levels at a particular affected property and in accordance with the conditions specified. A person shall provide the supporting documentation to justify the use of such alternative factors to the executive director.(A) Gastrointestinal absorption fraction (ABSGI ). A person or the executive director may use an alternative scientifically justifiable gastrointestinal absorption fraction value. Only in cases where the gastrointestinal absorption fraction is less than 50% shall the oral slope factor and oral reference dose be adjusted using equation RBEL-2 as shown in the figure in subsection (a) of this section, as applicable, to calculate the corresponding dermal slope factor and dermal reference dose. The person shall not use the gastrointestinal absorption fraction to modify the oral slope factor or oral reference dose for any exposure pathway other than the dermal exposure pathway. In the event the executive director determines a more scientifically valid gastrointestinal absorption fraction, that fraction shall be presumed to be the appropriate fraction and the person shall use that fraction unless a person rebuts that value with a scientifically valid study or by other credible published authority. (B) Dermal absorption fraction (ABS.d). A person or the executive director may conduct a scientifically valid study using property-specific soils or may use alternative scientifically justifiable dermal absorption values. In the event the executive director determines a more scientifically valid dermal absorption fraction, that fraction shall be presumed to be the appropriate fraction and the person shall use that fraction unless a person rebuts that fraction with a scientifically valid study using property-specific soils or by other credible published authority.(C) Relative bioavailability factor (RBAF). A person or the executive director may conduct a scientifically valid bioavailability study using property-specific soils or may conduct mineralogical evaluations of the chemical form of a COC present in soils at the affected property. In the event the executive director determines a more scientifically valid relative bioavailability factor, that factor shall be presumed to be the appropriate relative bioavailability factor and the person shall use that factor unless a person rebuts that factor with a scientifically valid bioavailability study using property-specific soils, mineralogical evaluation of the chemical form of a chemical of concern present in soils at the affected property, or by other credible published authority. (2) Under Tiers 2 or 3 as provided in §350.75 of this title , a person may request that the executive director allow a variance to the following default commercial/industrial exposure factors for the affected property as shown in the figure in subsection (a) of this section: averaging time for noncarcinogens (AT.w), exposure duration (ED.w), and exposure frequency (EF.w). This shall only be allowed for facilities that have or will have, as a condition of the approval of this variance, restricted property access. The executive director shall not delegate this decision to agency staff.(A) The person shall submit information to the executive director which demonstrates that variance from the default exposure factors is supported by property-specific information; historical, current, and probable future land use; redevelopment potential; and compatibility with surrounding land use. The person shall also provide written concurrence from the landowner for the placement of the institutional control in the county deed records, as required in subparagraph (L) of this paragraph, unless the property is subject to zoning or governmental ordinance which is equivalent to the deed notice, Voluntary Cleanup Program certificate of completion or restrictive covenant that otherwise would have been required.(B) The person requesting such variance shall provide public notification as described in subparagraphs (D) and (E) of this paragraph for any request to vary the default exposure factors at the same time that variance-based protective concentration levels (PCLs) are submitted to the executive director for approval. If the natural physical condition of the on-site commercial/industrial area for which the variance is sought essentially prohibits full commercial/industrial use (e.g., marshes and cliffs), and the variance would not necessitate a lesser commercial/industrial use of that area, then the executive director will determine the need for public notice on a site-specific basis for the prohibited use area. The person may request the executive director or his staff to review the variance-based PCLs or the variance request for completeness (e.g., administratively complete, mathematical accuracy, compliance with other PCL development procedures) in advance of initiating the public notification process. The required public notice shall be completed prior to consideration of the variance request for approval by the executive director. The public notice provisions may be performed in conjunction with or as part of another public participation/notification process required for permitting or other applicable state or federal statute or regulation provided the requirements of subparagraph (E) of this paragraph are also met. Additionally, an alternative mechanism that may exist under the other public participation/notification process which effectively provides broad public notice of the variance request, such as notification to an existing citizens' advisory board for the affected property/facility, may substitute for the requirements of subparagraph (D) of this paragraph, provided the completion of the notification is sufficiently documented.(C) The notice shall contain, at a minimum, the following information:(i) the name, address and telephone number of the person requesting the variance;(ii) the address and the physical description for the location of the property and the agency case designation number;(iii) the modified value(s) the person seeks to use and the associated default exposure factor(s) as shown in the figure in subsection (a) of this section without any statements or other indications that such variance has been approved or otherwise considered favorably by the executive director or the executive director's staff other than that it has been reviewed for completeness;(iv) a clear and concise explanation as to the effect the variance will have on the future use of the subject property and on surrounding properties;(v) a statement that more detailed information regarding the variance request is available for review at the agency's central office in Austin, Texas, 8:00 am - 5:00 pm Monday thru Friday; and(vi) a notice to the public of the opportunity to submit written information, within 30 calendar days after the date of the initial published notice (publish the actual date), to the executive director which demonstrates that the proposal for variance from the default exposure factors would be compatible or incompatible with existing neighboring land uses and preservation of the active and productive land use of the subject property.(D) The notice shall be published in a newspaper distributed daily, if available, and generally circulated in the county or area where the property is located. The notice shall be published once a week for three weeks, with at least one of the notices appearing in a Sunday edition, if available.(E) The notice shall be sent to the following persons in clauses (i) - (viii) of this subparagraph by certified mail, return receipt requested:(i) all adjacent landowners;(ii) the local municipality planning board or similar governmental unit, if applicable;(iii) local taxing authorities;(iv) the mayor and health authorities of the city in which the property is located, if applicable;(v) the county judge and county health authority of the county in which the property is located;(vi) the agency's Public Interest Counsel;(vii) all persons or organizations who have requested the notice or expressed interest; and(viii) other persons or organizations specified by the executive director.(F) The person shall provide copies of each notice sent by mail, copies of the published notice, and copies of the signed publisher's affidavit for the initial notice to the agency's Austin office and to the appropriate agency region office within 10 calendar days after the initial publication and mailing. Copies of the signed publisher's affidavits for the subsequent notices shall be provided to the agency's Austin office and to the appropriate agency region office within 10 days of both subsequent notices.(G) At the executive director's request, and at the expense of the person, the person shall schedule and hold a public meeting at a time and place which are convenient for persons identified in subparagraph (E) of this paragraph. The forum chosen for the meeting shall comply with the Americans with Disabilities Act. Prior to scheduling the public meeting, the person shall coordinate the scheduling of the public meeting with the executive director's office to ensure the availability of agency personnel for the meeting. The person shall confirm with the executive director's office the date, time, and location of the meeting not less than 15 days prior to the meeting. The meeting shall be open to the public to provide information on the request to vary the default exposure factors and to allow for comments by the public. The person shall again confirm with the executive director's office on the time and place of the meeting at least 72 hours prior to the meeting.(H) In order to inform persons of the public meeting, the person shall, at least 30 calendar days prior to the public meeting, follow the notification process required in subparagraphs (C) - (F) of this paragraph with the following exceptions:(i) the notice shall be supplemented to include the date, time, and location of the public meeting and to indicate that the meeting is open to the public for the purposes of providing information on the request to vary default exposure factors and to provide the public the opportunity to provide comments on the request;(ii) the notice shall indicate that the public shall have 15 calendar days after the date of the public meeting to submit written information to the executive director which demonstrates that the proposal for variance from the default exposure factors would be compatible or incompatible with existing neighboring land uses and preservation of the active and productive land use of the subject property; and(iii) the notice by publication of the public meeting shall only be published once and shall be placed in a Sunday edition, if available.(I) The executive director's decision on the request for a variance from the default exposure factors shall occur at least 15 calendar days after any public meeting or if no public meeting is held, at least 45 days after the date of the initial published notice. The executive director's decision shall be based upon property-specific data; historical, current, and probable future land use; redevelopment potential; and compatibility with surrounding land use. The executive director shall not consider the costs incurred for any actions taken by the person in anticipation that the variance would be approved by the executive director.(J) At the same time that the executive director's decision is mailed to the person requesting the variance, a copy of this decision shall also be mailed to all persons identified in subparagraph (E) of this paragraph. The notice of the executive director's decision shall explain the method for submitting a motion for reconsideration of the executive director's decision by the commission.(K) The person requesting the variance and persons identified in subparagraph (E) of this paragraph may file with the chief clerk a motion to overturn related to the request for variance, in accordance with §50.139 of this title (relating to Motion to Overturn Executive Director's Decision).(L) A person who receives a variance from the default exposure factors shall comply with the institutional control requirements in §350.111(b), (b)(12), or (13) of this title (relating to Use of Institutional Controls), as applicable, and provide proof of compliance with the institutional control requirements within 90 days of the approval by the executive director of the response action completion report.(3) The person shall not vary the following exposure factors shown in the figure in subsection (a) of this section.(A) averaging time for residents for noncarcinogens (AT.A.res and AT.C.res) or carcinogens (ATc);(B) body weight for adults and children (BW.A, BW.C, BW(0<6) , BW(6<18) , and BW(18<30) );(C) exposure duration for residents (ED.A.res, ED.C.res, ED(0<6) , ED(6<18) , and ED(18<30) );(D) exposure frequency for residents (EF.res);(E) ingestion rate for soil, water, or vegetables (IRsoil.AgeAdj.res, IRsoil.C.res, IRsoil.w, IRw.AgeAdj.res, IRw.C.res, IRw.w, IRabg.AgeAdj.res, IRbg.AgeAdj.res, IRabg.C.res, IRbg.C.res);(F) toxicity modifying factor (MF);(G) skin surface area (SA.C.res, SA(0<6) , SA(6<18) , SA (18<30) , SA.w);(H) soil-to-skin adherence factors (AF.C.res, AF (0<6) , AF(6<18) , AF (18<30) , and AF.w).</content><note type="source"><p>Source Note: The provisions of this §350.74 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526; amended to be effective May 14, 2020, 45 TexReg 3130.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scD/s350.75"><num value="350.75">§350.75</num><heading>Tiered Human Health Protective Concentration Level Evaluation</heading><content>(a) General. (1) The person shall decide whether to use Tier 1, 2, and/or 3 to determine the PCLs for an affected property, except as provided in paragraph (2) of this subsection and unless required by subsection (b), (c), or (d) of this section. (2) The executive director may require the person to establish PCLs in accordance with Tier 1, 2, and/or 3 for state-funded response actions at affected properties. (b) Tier 1 PCLs. (1) Tier 1 is a risk-based analysis to derive non-site-specific PCLs for complete or reasonably anticipated to be completed exposure pathways. Tier 1 is based on default exposure factors and affected property parameters in the applicable PCL equations provided in the following figure and assumes exposure occurs at, above or below the source area (i.e., no lateral transport). Attached Graphic(2) No lateral transport equations may be used for a Tier 1 evaluation other than to ensure that receptors at off-site POEs are protected when on-site commercial/industrial land use is assumed. The person shall assume a 0.5 acre source area for an affected property with a 0.5 acre or less source area and a 30 acre source area for an affected property with a source area in excess of 0.5 acres. The size of the source area in soil and groundwater shall be determined using the soil or groundwater assessment level calculated for a 0.5 acre source area. The executive director may require that the source area include all areas of the affected property which exceed the assessment level and not just contiguous areas when such assumption is appropriate considering the distribution of the COCs. (3) The person shall establish PCLs using parameters which are specific to the affected property when use of the Tier 1 default affected property parameters would not be protective or when requested by the executive director. The person shall then establish PCLs in accordance with subsections (c) or (d) of this section. (4) The person shall establish PCLs in accordance with subsections (c) or (d) of this section for any groundwater, soil, surface water, air, or sediment human health exposure pathway which is complete or reasonably anticipated to be completed at an affected property and for which an equation is not referenced in this subsection. (c) Tier 2 PCLs. (1) Tier 2 is a risk-based analysis to derive site-specific PCLs for complete or reasonably anticipated to be completed exposure pathways utilizing site-specific exposure factors, as allowable, and/or affected property parameters and Tier 1 equations. Tier 2 PCLs may also include lateral transport considerations. (2) The person shall use: (A) the relevant RBELs appropriate for the type of COC, exposure pathway, receptor, and land use provided in §350.74 of this title (relating to Development of Risk-Based Exposure Limits); (B) PCL equations provided by the executive director in guidance, in addition to the PCL equations as shown in the figure in subsection (b)(1) of this section; (C) the Tier 1 default affected property parameters or appropriately collected and representative site-specific affected property parameters in the PCL equations, unless an entry of "No" in the column titled "Change To Tier 1 Default Allowed?" in the figure as shown in subsection (b)(1) of this section indicates that a particular Tier 1 affected property parameter value shall not be modified under a Tier 2 evaluation; and (D) PCLs established in accordance with subsection (d) of this section for any groundwater, soil, surface water, air, or sediment exposure pathway which is complete or reasonably anticipated to be completed at an affected property and for which an equation is not referenced either in this subsection or in subsection (b)(1) of this section. (d) Tier 3 PCLs. (1) Tier 3 is a risk-based analysis to derive site-specific PCLs for complete or reasonably anticipated to be completed exposure pathways. Tier 3 PCLs are based on measured natural attenuation factors and/or natural attenuation factor models/equations other than those provided for Tier 1 or 2; and may also include site-specific exposure factors, as allowable, and/or affected property parameters. (2) The person shall use: (A) field measured natural attenuation factors and/or appropriate natural attenuation factor equations/models other than the Tier 1 and 2 PCL equations; (B) appropriate equations/models for any remaining surface water, air, or sediment human exposure pathway which is complete or reasonably anticipated to be completed at an affected property and for which an equation is not referenced in subsection (b) or (c) of this section; and (C) the Tier 1 default affected property parameters or appropriately collected and representative site-specific affected property parameters in the PCL equations, unless an entry of "No" in the column titled "Change To Tier 1 Default Allowed?" in the figure as shown in subsection (b)(1) of this section indicates that a particular Tier 1 affected property parameter value shall not be modified under a Tier 3 evaluation. (e) Natural attenuation factor documentation. The person must document the use of all natural attenuation factor equations/models other than the natural attenuation factor equations/models provided in this subchapter or agency guidance, such that the derivation of the model and its site-specific application can be understood, and the results of the model reproduced by the executive director. The executive director may require the person to obtain prior approval for the use of alternative natural attenuation factor equations/models in a Tier 3 evaluation. (f) Decay factors. When the person uses decay factors in any cross-media or lateral transport natural attenuation factor equation in either Tier 2 or 3, the person shall use sufficient monitoring data (i.e., vapor, soils and groundwater samples for COCs or other degradation indicators) to verify the COC is degrading. (g) Verification. When natural attenuation factor modeling outputs are inconsistent with monitoring data for environmental media at an affected property, the person and the executive director shall generally place more weight on the monitoring data. The executive director may require the person to provide sufficient monitoring data to verify that PCLs established under any tier are based on an appropriate understanding of conditions at the affected property. (h) Data adequacy. The person shall collect any additional data necessary to support the development of PCLs under any of the tiers. (i) Pathway specific PCL Considerations. (1) PCLs for ingestion of COCs in class 1 or 2 groundwater (GW GWIng ). The person shall establish this PCL using the applicable equation shown in the figure in subsection (b)(1) of this section. (2) PCLs for COCs in class 3 groundwater ( GW GWClass 3 ). The person shall establish this PCL using the applicable equation in the figure in subsection (b)(1) of this section. (3) PCLs for inhalation of volatile emissions in outdoor air from COCs in groundwater-bearing units (Air GWInh-V ). The person shall establish this PCL using the applicable equations as shown in the figure in subsection (b)(1) of this section for Tier 1. (4) PCLs for COCs in groundwater discharge to surface water (SW GW). The person shall set SW GW equal to SW SW divided by the surface water dilution factor. The SW SW is the lesser of the SW RBEL established in accordance with §350.74(h) of this title and the SWEco established in accordance with §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels). The surface water dilution factor shall be determined in accordance with subparagraph (A) or (B) of this paragraph. The person shall use the PCL equation as shown in the figure in subsection (b)(1) of this section to establish SW GW. In the case that different surface water dilution factors may be applicable to the SW RBEL and the SW Eco , the person shall first divide the SW RBEL and the SWEco by their respective surface water dilution factors and set SW GW equal to the lowest resulting quotient. (A) The person shall assume a surface water dilution factor of one when the concentration of all COCs in groundwater at the zone of discharge to surface water is less than or equal to the SW SW for those COCs at the time the affected property assessment required in §350.51 of this title (relating to Affected Property Assessment) is conducted. The person shall also assume a surface water dilution factor of one for those specific COCs which are listed as impairing the nearest classified segment at or downstream of the affected property. Impaired water bodies are provided in the current Clean Water Act, §303(d) list, as amended. (B) When the concentration of a COC in groundwater at the zone of discharge to surface water exceeds the SW SW for that COC at the time the affected property assessment required in §350.51 of this title is conducted, the person may establish a surface water dilution factor in accordance with subparagraph (C), (D), or (E) of this paragraph. (C) The person may use a surface water dilution factor of 0.15 for non-flowing surface waters such as lakes, estuaries, tidal rivers; and fresh water streams and rivers (where the groundwater discharge is clearly less than 15% of the 7Q2 stream flow as defined in §307.3(a)(34) of this title (relating to Definitions and Abbreviations)), as amended. The person shall use the 7Q2 flows as listed in §307.10(2) of this title (relating to Appendices A - E), as amended, for groundwater discharges directly to a classified segment as listed in §307.10(3) of this title, as amended. For groundwater discharges which are not directly to a classified segment, site-specific 7Q2 values must be determined for the water body directly receiving the groundwater discharge. (D) For freshwater streams and rivers where the groundwater discharge is clearly greater than 15% of the 7Q2 flow, the person shall estimate property-specific surface water dilution factors based on 7Q2 flows for chronic aquatic-life criteria, 25% of 7Q2 flows for acute aquatic-life criteria, and harmonic mean flows as defined in §307.3(a)(19) of this title, as amended, for human health criteria in accordance with the procedures contained in the Implementation Procedures, as amended. The person shall divide the SW SW by the estimated property-specific dilution factor. The person shall use the 7Q2 flows listed in §307.10(2) of this title, as amended, for groundwater discharges directly to a classified segment as listed in §307.10(3) of this title, as amended. For groundwater discharges which are not directly to a classified segment, site-specific 7Q2 values must be determined for the water body directly receiving the groundwater discharge. (E) As an alternative to using the dilution factor of 0.15 as specified in subparagraph (C) of this paragraph, the person may measure and/or estimate the groundwater dilution in surface water from appropriate models of groundwater plume dispersion, tracer studies, receiving water and sediment sample analyses, analytical calculations, or other techniques upon the executive director's approval using site-specific base flow conditions for groundwater, 7Q2 conditions for receiving streams, and critical mixing conditions for lakes, estuaries, and tidal streams. The executive director may require a receiving water study to ensure that benthic communities in the sediment are not adversely impacted. In cases where groundwater COCs include bioaccumulative COCs, the executive director may require a receiving water study or empirical analysis to ensure that the release of that particular COC is not causing, or will not result in harmful levels in the tissue of aquatic and terrestrial organisms that feed in the water body. (F) The person may be required by the executive director to take appropriate action to ensure that discharging groundwater plumes do not result in exceedances of surface water quality standards in significant areas of the potentially affected surface water body. (5) PCLs for other complete or reasonably anticipated to be completed groundwater exposure pathways. The person shall establish PCLs for exposure pathways other than those listed in paragraphs (1) - (4) of this subsection when, in the executive director's determination, those other exposure pathways are complete or reasonably anticipated to be completed. (6) PCLs for the combined exposure pathways of inhalation of volatile emissions and particulates from COCs in surface soil, dermal contact with COCs in surface soil, ingestion of COCs in surface soil, and for affected residential properties, ingestion of aboveground and below-ground vegetables grown in surface soil containing COCs (Tot Soilcomb ). The person shall establish this PCL using the applicable equation as shown in the figure in subsection (b)(1) of this section for Tier 1. (7) PCLs for groundwater protection from leachate containing COCs from surface and subsurface soil (GW Soil). (A) The person shall establish GW Soil for each COC present in the surface and subsurface soil such that soil leachate is protective for: (i) the critical groundwater PCL established in §350.78 of this title (relating to Determination of Critical Protective Concentration Levels) when the use of a plume management zone is not authorized in §350.33(f)(4) of this title (relating to Remedy Standard B); (ii) the attenuation action level for the nearest monitoring point when the use of a plume management zone is authorized under §350.33(f)(4) of this title; and/or (iii) the maximum concentration of COCs in the groundwater source area at the time of RAP submittal when a plume management zone is authorized for class 2 groundwater in response to §350.33(f)(4) of this title. (B) The person shall establish this PCL using the applicable equations as shown in the figure in subsection (b)(1) of this section for Tier 1. (C) The person may not be required to establish a soil leachate-to-groundwater PCL in accordance with subparagraphs (A) and (B) of this paragraph when a demonstration can be made with appropriate soil and groundwater monitoring data that the soils will attain the soil response objectives for groundwater protection set forth in Subchapter B of this chapter (relating to Remedy Standards). The determination that the soils are adequately protective shall be based on soil sample data, the concentration trends of groundwater monitoring data over time when groundwater is impacted, probable time since release occurred, adequate identification of the soil source areas, appropriate leachate test results, or other hydrogeologic or property-specific information. The executive director may also require that the change in soil concentrations over time be documented to support this evaluation in a property-specific situation. The executive director may require the person to install a sufficient number of groundwater monitoring wells to demonstrate that groundwater is not affected when soil COC concentration data are inadequate to sufficiently substantiate that groundwater is not affected. (8) PCLs for inhalation of volatile emissions in outdoor air from COCs in subsurface soils (Air Soil Inh-V ). The person shall establish this PCL using the applicable equations as shown in the figure in subsection (b)(1) of this section for Tier 1. (9) Theoretical soil saturation limit (C sat ). The person may establish a property-specific theoretical soil saturation limit for the volatilization exposure pathways required in paragraphs (6) and (8) of this subsection under Tiers 2 or 3. The C sat shall be based on the same property-specific parameters as those used to calculate Air Soil Inh-V . If the property-specific Air SoilInh-VP or Air SoilInh-V is greater than the property-specific Csat , then that exposure pathway shall not be considered a relevant exposure pathway for that COC. (10) Residual soil saturation limit (Soil Res ). The person shall establish the residual saturation level for each organic COC present in surface and subsurface soils which is a liquid at standard temperature and pressure using the applicable equation as shown in the figure in subsection (b)(1) of this section to estimate the mobile NAPL concentration and to determine if NAPL may be present. (11) PCLs for other complete or reasonably anticipated to be completed surface and subsurface soil exposure pathways. The person shall establish PCLs for surface and subsurface soil exposure pathways other than those listed in paragraphs (6) - (8) of this subsection when, in the executive director's determination, those other exposure pathways are complete or reasonably anticipated to be completed. (12) Air inhalation exposure pathways ( Air AirInh ). For air inhalation exposure pathways, the person may be required by the executive director to establish Air AirInh solely for the purposes of determining the protective concentration that must be met in air at the POE. The person shall use the applicable equation as shown in the figure in subsection (b)(1) of this section to establish Air AirInh . (13) Surface water exposure pathways ( SW SW). The person may be required by the executive director to establish SW SW when COCs are present in surface water or when COCs will enter into surface water due to a release, and a surface water response action is necessary to protect human or ecological receptors. The person shall use the applicable equation as shown in the figure in subsection (b)(1) of this section to establish SW SW. (14) Other air and surface water exposure pathways. The person shall establish PCLs for air and surface water exposure pathways other than those listed in paragraphs (12) and (13) of this subsection when, in the executive director's determination, those other exposure pathways are complete or reasonably anticipated to be completed. (15) The person shall establish PCLs for complete or reasonably anticipated to be completed sediment exposure pathways when, in the executive director's determination, those exposure pathways are complete or reasonably anticipated to be completed. (j) The person is not required to combine exposure pathways for a single environmental medium when determining PCLs with the exception of the combined exposure pathway required in subsection (i)(6) of this section, unless otherwise directed by the executive director.</content><note type="source"><p>Source Note: The provisions of this §350.75 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scD/s350.76"><num value="350.76">§350.76</num><heading>Approaches for Specific Chemicals of Concern to Determine Human Health Protective Concentration Levels</heading><content>(a) General.(1) Due to the unique nature of the toxicity and/or exposure, the person shall use the COC-specific approaches described in this section for the following COCs:(A) cadmium;(B) lead;(C) polychlorinated biphenyls;(D) polychlorinated dibenzodioxins and dibenzofurans;(E) polycyclic aromatic hydrocarbons; and(F) total petroleum hydrocarbons.(2) Except for the specific provisions contained in this section, the person shall establish RBELs and PCLs in accordance with the standard procedures outlined in the previous sections of this subchapter.(3) This section addresses only those exposure pathways for which PCL equations are provided in this subchapter. When dealing with other exposure pathways as required in §350.71(c) of this title (relating to General Requirements), the executive director will specify how those pathways should be addressed for these COCs using the best available science.(4) The person shall use the figures as required in subsections (b) - (g) of this section.(b) Cadmium.(1) In calculating residential soil PCLs that are protective for noncarcinogenic effects for all tiers, the person shall incorporate age-adjusted exposure assumptions for the soil ingestion, vegetable ingestion, and dermal soil exposure pathways. Accordingly, 30 years of cadmium exposure shall be partitioned into three specific exposure periods: <1 - 6 years, 6 - 18 years, and 18 - 30 years. Cadmium intake shall be calculated for each of these periods, based on the period-specific exposure assumptions. The soil PCL for cadmium shall be a function of the final integrated intake estimate, which shall be determined by time-weighting intake from each of the three exposure periods. The age-adjusted RBEL equations and default parameters to be used for cadmium are provided in the following figure. The soil PCL for cadmium shall be calculated by combining the pathway-specific PCLs as outlined in §350.75(i)(6) of this title (relating to Tiered Human Health Protective Concentration Level Evaluation).Attached Graphic(2) In calculating residential and commercial/industrial soil PCLs for all tiers, the person shall use the reference dose values for cadmium in food in evaluating exposures to cadmium through the soil ingestion, vegetable ingestion, and dermal soil exposure pathways.(c) Lead.(1) The Tier 1 residential soil PCL (TotSoilComb) for lead is 500 mg/kg.(2) Subject to prior approval by the executive director, the person may use property-specific data in conjunction with a lead model approved by the executive director (e.g., EPA Integrated Exposure Uptake Biokinetic model for lead in children (version 1.0 from 2005)) to calculate a Tier 3 residential soil PCL (TotSoilComb) for lead. The person shall submit information to the executive director which demonstrates that variance from default model inputs is supported by property-specific information (e.g., data from a scientifically valid bioavailability study using property-specific soils). Property-specific model input values must be approved by the executive director. Consistent with the development of residential RBELs for COCs without chemical-specific approaches in accordance with §350.74 of this title (Development of Risk-Based Exposure Limits), variance from certain model default exposure factors such as soil/dust ingestion rates and exposure frequency to less conservative (i.e., lower) numerical values shall not be allowed.(3) The commercial/industrial soil PCL (TotSoilComb) is based only on the soil ingestion pathway (SoilSoilIng). The person shall use the exposure algorithm and default exposure factors in the following figure for calculating the Tier 1 commercial/industrial SoilRBELIng value.Attached Graphic(4) The person may use a different exposure algorithm as presented in the following figure that considers soil and dust separately for calculating the Tier 2 and 3 commercial/industrial SoilRBELIng value in cases where the person has adequate direct measurement data on the concentrations of lead in both soil and dust at the affected property. In addition, in calculating Tier 2 or 3 SoilRBELIng values, the person may deviate from the default exposure factors as shown in the figure in paragraph (3) of this subsection and the following figure if property-specific or defensible alternative data (e.g., from open literature or privately funded studies) adequately support such an approach. The specific exposure factors for which the person may use property-specific or scientifically defensible alternative values are the following:Attached Graphic(A) individual geometric standard deviation (GSDi);(B) baseline blood lead (PbBO);(C) absolute absorption fraction of lead in soil/dust (Afsd);(D) absolute absorption fraction of lead in soil (AFs); and(E) absolute absorption fraction of lead in dust (Afd).(d) Polychlorinated Biphenyls.(1) In calculating Tier 1 residential and commercial/industrial soil and groundwater PCLs, the person shall use the upper-reference point of the upper-bound slope factors (2 (mg/kg-day)-1) for the soil ingestion, dermal contact with soil, vegetable ingestion, and inhalation (both vapor and particulate phases) exposure pathways.(2) For Tiers 2 and 3, the person may use alternative slope factors when the following conditions are met:(A) The person may use the lower reference point of the upper bound slope factors (0.4 (mg/kg-day)-1) to calculate an inhalation unit risk factor when evaluating inhalation exposures to volatilized polychlorinated biphenyls. The person must still use the upper reference point of the upper bound slope factors (2 (mg/kg-day)-1) to evaluate inhalation exposures to particulate phase polychlorinated biphenyls.(B) The person may conduct congener or isomer analyses. The person may use the lowest reference point of the upper-bound slope factors (0.07 (mg/kg-day)-1) for the soil ingestion, dermal contact with soil, and inhalation exposure pathways if congener or isomer analyses verify that congeners with more than four chlorines comprise less than one-half percent of total polychlorinated biphenyls in a given exposure medium. The upper reference point of the upper-bound slope factors (2 (mg/kg-day)-1) shall be used for all other exposure pathways regardless of the results of the congener- or isomer-specific analyses. If congener or isomer analyses indicate that congeners with more than four chlorines comprise greater than one-half percent of total polychlorinated biphenyls in a given exposure medium, then the person shall use the upper-reference point of the upper-bound slope factors (2 (mg/kg-day)-1) for all pathways for that specific exposure medium. Further, when congener concentrations are available, the contribution of dioxin-like polychlorinated biphenyls to total dioxin equivalents shall be considered. The person shall determine the constituents considered to be dioxin-like polychlorinated biphenyls from the list established by the World Health Organization in 2005, or a more recent list of constituents established by a scientifically valid source that has been reviewed and approved by the executive director. The person shall apply the toxicity equivalency factors established by the World Health Organization in 2005, or more recent toxicity equivalency factors established by a scientifically valid source that have been reviewed and approved by the executive director, to the measured concentrations for each of the dioxin-like polychlorinated biphenyls. These values shall then be summed to obtain a 2,3,7,8-TCDD toxicity equivalency quotient. Toxicity equivalency quotients for dioxin-like polychlorinated biphenyls shall then be added to those for other dioxin-like compounds as specified in subsection (e) of this section to yield a total toxicity equivalency quotient concentration. This total toxicity equivalency quotient concentration shall then be compared with the critical PCL for TCDD, 2,3,7,8-(dioxin). When addressing dioxin-like polychlorinated biphenyls in this manner, the person shall subtract the concentration of dioxin-like polychlorinated biphenyls from the total polychlorinated biphenyls concentration to avoid overestimating dioxin-like polychlorinated biphenyls by evaluating them twice.(3) The executive director may determine that a change in a toxicity equivalency factor has been of such magnitude that the calculated toxicity equivalency quotient would not be representative of the actual toxicity of the dioxin-like polychlorinated biphenyl mixture and not protective of human health and the environment. If the executive director makes such a determination, then the person must evaluate the adequacy of the response action. If the executive director determines that a change in a toxicity equivalency factor is of such magnitude that the calculated toxicity equivalency quotient would not be representative of the actual toxicity of the dioxin-like polychlorinated biphenyl mixture such that the proposed response action is no longer warranted to protect human health and the environment, then a response action based on the previous toxicity equivalency quotient shall no longer be required.(4) In evaluating inhalation exposures under Tiers 2 or 3, the person shall convert the appropriate slope factor to an inhalation unit risk factor, based on the following equation: Inhalation Unit Risk Factor (risk per µg/m3 )= oral slope factor x 20 m3 /day divided by 70 kg x 10 -3 mg/µg.(5) In Tiers 2 and 3, and only when applicable for a specific site, the person may set soil PCLs based on the requirements of the Toxic Substances Control Act, 40 Code of Federal Regulations Parts 750 and 761, as amended. Sites must comply fully with all applicable Toxic Substances Control Act, as amended, requirements when establishing the soil PCL for polychlorinated biphenyls in this manner.(e) Polychlorinated Dibenzo-p-Dioxins and Dibenzofurans.(1) In demonstrating attainment of the critical PCL for TCDD, 2,3,7,8-(dioxin), the person shall determine the constituents considered to be dioxins and furans from the list established by the World Health Organization in 2005, or a more recent list of constituents established by a scientifically valid source that has been reviewed and approved by the executive director. The person shall apply the toxicity equivalency factors established by the World Health Organization in 2005, or more recent toxicity equivalency factors established by a scientifically valid source that have been reviewed and approved by the executive director, to the measured concentrations of the dioxins and furans in accordance with the following procedures.(A) When analytical data are only available for total dioxins/furans, the person shall assume that the mixture consists solely of 2,3,7,8-TCDD, and a toxicity equivalency factor value of 1.0 shall be applied to the measured concentration to yield the 2,3,7,8-TCDD toxicity equivalency quotient concentration for the sample.(B) When homologue-specific analytical data are available (e.g., tetrachlorodibenzodioxins), the person shall assume that each homologue class is comprised solely of 2,3,7,8-substituted congeners, and shall apply the toxicity equivalency factors established by the World Health Organization in 2005, or more recent toxicity equivalency factors established by a scientifically valid source that have been reviewed and approved by the executive director, to the measured concentrations for that homologue class. If a homologue class has more than one toxicity equivalency factor for different congeners, the highest toxicity equivalency factor that has been reviewed and approved by the executive director shall be used for that congener class. The toxicity equivalency quotient concentrations for each homologue class shall be summed to obtain a total toxicity equivalency quotient concentration for the sample.(C) When congener-specific analytical data are available (e.g., 1, 2, 3, 4, 7, 8-hexachlorodibenzofuran), the person shall determine the constituents considered to be dioxins and furans from the list established by the World Health Organization in 2005, or a more recent list of constituents established by a scientifically valid source that has been reviewed and approved by the executive director. The person shall apply the toxicity equivalency factors established by the World Health Organization in 2005, or more recent toxicity equivalency factors established by a scientifically valid source that have been reviewed and approved by the executive director for the 2, 3, 7, 8-substituted congeners, to the measured concentrations. The toxicity equivalency quotient concentrations for each 2, 3, 7, 8-substituted congener shall then be summed to obtain a total toxicity equivalency quotient concentration for the sample.(D) The executive director may determine that a change in a toxicity equivalency factor has been of such magnitude that the calculated toxicity equivalency quotient would not be representative of the actual toxicity of the dioxin and furan mixture and not protective of human health and the environment. If the executive director makes such a determination, the person must evaluate the adequacy of the response action. If the executive director determines that a change in a toxicity equivalency factor is of such magnitude that the calculated toxicity equivalency quotient would not be representative of the actual toxicity of the dioxin and furan mixture such that the proposed response action is no longer warranted to protect human health and the environment, then a response action based on the previous toxicity equivalency quotient shall no longer be required.(2) The person shall then compare the total toxicity equivalency quotient concentration established in paragraph (1) of this subsection to the critical PCL for TCDD, 2, 3, 7, 8-(dioxins).(3) The person shall calculate the critical soil PCLs for residential and commercial/industrial properties for a 2,3,7,8-TCDD toxicity equivalency quotient according to the equations and rule provisions provided in §350.75 of this title (relating to Tiered Human Health Protective Concentration Level Evaluation).(f) Polycyclic Aromatic Hydrocarbons.(1) In calculating residential and commercial/industrial PCLs for all tiers, the person shall evaluate the following seven polycyclic aromatic hydrocarbons as carcinogens:(A) benzo {a} anthracene;(B) benzo {b} fluoranthene;(C) benzo {k} fluoranthene;(D) benzo {a} pyrene (B {a} P);(E) chrysene;(F) dibenzo {a, h} anthracene; and(G) indeno {1, 2, 3-c, d} pyrene.(2) The person shall use the relative potency factors outlined in the following figure to estimate cancer slope factors and unit risk estimates for each of the polycyclic aromatic hydrocarbons identified in paragraph (1) of this subsection for all exposure pathways (e.g., the soil ingestion, vegetable ingestion, inhalation, dermal contact with soil, and groundwater ingestion (in the absence of a primary MCL) exposure pathways):Attached Graphic(3) The cancer slope factors and inhalation unit risk factors for the seven carcinogenic polycyclic aromatic hydrocarbons, shall be calculated according to the equations set forth in the following figure:Attached Graphic(4) The person shall not apply the relative potency factor for any pathways when evaluating noncarcinogenic endpoints.(5) For class 1 or 2 groundwater, the person shall establish PCLs according to the procedures in subparagraphs (A) and (B) of this paragraph.(A) In evaluating residential and commercial/industrial exposures to class 1 and 2 groundwater for all tiers, the person shall use the most currently available primary MCL for benzo{a}pyrene as GWGWIng for benzo{a}pyrene. (B) In establishing GWGWIng for class 1 and 2 groundwater for the six remaining carcinogenic polycyclic aromatic hydrocarbons, the person shall use the higher of the calculated GWRBELIng or the primary MCL for B{a}P as GWGWIng for that specific polycyclic aromatic hydrocarbon. In the event that primary MCLs for the other carcinogenic polycyclic aromatic hydrocarbons become available, those MCLs would serve as GWGWIng for these compounds.(g) Total Petroleum Hydrocarbons.(1) The person shall follow the methodology prescribed by this subsection to establish PCLs for total petroleum hydrocarbons, unless the executive director approves the use of an alternate method.(2) In order to establish PCLs for total petroleum hydrocarbons, the person shall establish PCLs for each of the aliphatic and aromatic hydrocarbon fractions listed in the following figure (e.g., aliphatic >C 6 -C8 ) for the mandatory and complete or reasonably anticipated to be completed exposure pathways as required in §350.71(c) of this title (relating to General Requirements):Attached Graphic(3) The person shall use the specific toxicity factors for the specific surrogates as shown in the figure in paragraph (2) of this subsection for a hydrocarbon fraction. If a reference concentration is not available, then the person shall not be required to comply with §350.73(c) of this title (relating to Determination and Use of Human Toxicity Factors and Chemical Properties). The PCLs established under this subsection shall be based on noncarcinogenic effects.(4) The person shall ensure that the PCLs established for each hydrocarbon fraction comply with the hazard quotient criteria as set forth in §350.72 of this title (relating to Carcinogenic Risk Levels and Hazard Indices for Human Health Exposure Pathways).(5) The person shall ensure that the PCLs established for the total petroleum hydrocarbons comply with the hazard index criteria as set forth in §350.72 of this title considering only the hydrocarbon fractions as shown in the figure in paragraph (2) of this subsection. The person shall follow the methodology prescribed in §350.72(d) of this title to adjust the hydrocarbon fraction PCLs to meet the hazard index criteria for the total petroleum hydrocarbons. (6) The person shall use an analytical method approved by the executive director to determine the concentration of the hydrocarbon fractions at the affected property.(7) When the bulk total petroleum hydrocarbons composition can be assumed to be relatively consistent based on process knowledge, the person may establish mixture-specific (e.g., gasoline, diesel, transformer mineral oil, or other petroleum product) PCLs based on property-specific mixture compositions or mixture compositions considered to be representative of the mixture. The person shall comply with the other provisions of this subsection in the development of the mixture-specific PCLs, but the person shall be allowed to determine compliance with the mixture-specific total petroleum hydrocarbons PCL with a bulk total petroleum hydrocarbons analytical method acceptable to the executive director in lieu of analysis of the concentration of each hydrocarbon fraction.(8) The PCLs established for each individual aliphatic and aromatic hydrocarbon fraction used to establish the mixture specific PCLs shall not exceed a hazard quotient of 1 and the mixture-specific PCL shall not exceed a hazard index of 10.</content><note type="source"><p>Source Note: The provisions of this §350.76 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526; amended to be effective February 6, 2025, 50 TexReg 663</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scD/s350.77"><num value="350.77">§350.77</num><heading>Ecological Risk Assessment and Development of Ecological Protective Concentration Levels</heading><content>(a) General. The person shall evaluate the affected property by conducting an ecological risk assessment in a manner appropriate and consistent with subsections (b), (c), or (d) of this section. The process is discussed in the agency's ecological risk assessment guidance. The purpose of the ecological risk assessment will be to characterize the ecological setting of the affected property, identify complete or reasonably anticipated to be completed exposure pathways and representative ecological receptors, scientifically eliminate COCs that pose no unacceptable risk, and develop PCLs for selected ecological receptors where warranted. The POEs for the selected ecological receptors shall be established on a property-specific basis. However, if the person can show that no unacceptable ecological risk exists due to incomplete or insignificant exposure pathways as specified in subsection (b) of this section, or if all COCs can be eliminated as specified in subsection (c)(1), (6), (7), or (8) of this section, or if, after incorporation of site-specific information, it can be shown that there is either no ecological risk or that it is not apparent as specified in subsection (d) of this section, then the ecological risk assessment process will terminate at that point. Also, if after the ecological risk assessment process specified in subsection (b) of this section, or if at anytime during the ecological risk assessment process specified in subsections (c) or (d) of this section, the person can demonstrate to the satisfaction of the executive director that the implementation of a response action will eliminate the ecological exposure pathway or render it insignificant, or that human health PCLs will be protective of ecological receptors, then no further ecological risk assessment evaluation will be required. In addition, if after the ecological risk assessment process specified in subsection (b) of this section, the person can demonstrate to the satisfaction of the executive director that an expedited stream evaluation can determine that the completed surface water and sediment pathways are insignificant, then no further ecological risk assessment evaluation will be required. If no further ecological risk assessment evaluation is required, then the person shall provide, as appropriate, a reasoned justification and/or an expedited stream evaluation for terminating the ecological risk assessment and place this information in the affected property assessment report as described in §350.91 of this title (relating to Affected Property Assessment Report). Furthermore, after ecological PCLs have been established, the person shall have the option, where determined appropriate, of conducting an ecological services analysis as a means of managing ecological risk at the affected property, in accordance with subsection (f) of this section and §350.33(a)(3)(B) of this title (relating to Remedy Standard B). Subsections (b), (c), and (d) of this section describe a three-tiered approach to conducting an ecological risk assessment, and although there is a logical progression from one tier to the next, the person may begin the ecological evaluation of the affected property at any tier. (b) Tier 1: exclusion criteria checklist. The person shall conduct a Tier 1 assessment at all affected properties to which this rule is applicable as presented in §350.2 of this title (relating to Applicability), unless the person elects to begin the ecological evaluation at Tier 2 or Tier 3. The person shall use the Tier 1 Exclusion Criteria Checklist provided in the following figure. The person will have fulfilled the ecological risk assessment requirements if the affected property meets the exclusion criteria. However, the person shall re-enter the ecological risk assessment process if changing circumstances result in the affected property not meeting the Tier 1 exclusion criteria. The person is required to continue the ecological risk assessment process as described in subsection (c) or (d) of this section if the affected property fails the exclusion criteria, unless the reasoned justification and/or expedited stream evaluation processes described in subsection (a) of this section are used to demonstrate that no unacceptable ecological risk exists. Attached Graphic(c) Tier 2: screening-level ecological risk assessment. The person shall conduct a screening-level ecological risk assessment to scientifically eliminate COCs that do not pose an ecological risk and to develop PCLs for those COCs that do pose an unacceptable risk to selected ecological receptors. Effect levels and exposure factors from the literature are used as early input, but Tier 2 PCLs are not developed without consideration of realistic assumptions and available site-specific information. The screening-level ecological risk assessment should contain the three following widely-acknowledged phases of an ecological risk assessment: problem formulation, which establishes the goals, breadth, and focus of the assessment; analysis, which consists of the technical evaluation of data on both the exposure of the ecological receptor to a chemical stressor and the potential adverse effects; and risk characterization, where the likelihood of adverse effects occurring as a result of exposure to a chemical stressor is evaluated. In order to develop a screening-level ecological risk assessment which appropriately evaluates ecological risk, the person shall meet the minimum requirements listed in paragraphs (1) - (10) of this subsection. Additional information on these requirements, as well as case examples, are provided in the agency's ecological assessment guidance. The person shall: (1) use affected property concentrations of non-bioaccumulative COCs to compare to established ecological benchmarks and/or use approved methodologies to develop benchmarks to determine potential effects and to eliminate COCs that do not pose unacceptable ecological risk (if all COCs are eliminated at this point, the ecological risk assessment process ends and the items listed in paragraphs (2) - (9) of this subsection are not required); (2) identify communities (e.g., soil invertebrates, benthic invertebrates) and major feeding guilds (e.g., omnivorous mammals, piscivorous birds) and their representative species which are supported by habitats on the affected property for each complete or reasonably anticipated to be completed exposure pathway; (3) develop a conceptual model which graphically depicts the movement of COCs through media to communities and the feeding guilds; (4) discuss COC fate and transport and toxicological profiles; (5) prepare a list of input data which includes values from the literature (e.g., exposure factors, intake equations that account for total exposure, no observed adverse effect level (NOAEL) and lowest observed adverse effect level (LOAEL) values, references), any available site-specific data, and reasonably conservative exposure assumptions, and then calculate the total exposure to selected ecological receptors from each COC not eliminated according to paragraph (1) of this subsection and present these calculations in tables or spreadsheets; (6) utilize an ecological hazard quotient methodology to compare exposures to the NOAELs in order to eliminate COCs that pose no unacceptable risk (i.e., NOAEL hazard quotient less than or equal to 1); however, when multiple members of a class of COCs are present which exert additive effects, it is also appropriate to utilize an ecological hazard index methodology (if all COCs are eliminated at this point, the ecological risk assessment process ends and the items listed in paragraphs (7) - (9) of this subsection are not required); (7) justify the use of less conservative assumptions (e.g., a larger home range) to adjust the exposure and repeat the hazard quotient exercise in paragraph (6) of this subsection, once again eliminating COCs that pose no unacceptable risk based on comparisons to the NOAELs and adding another set of comparisons, this time to the LOAELs, for those COCs indicating a potential risk (i.e., NOAEL hazard quotient >1); however, when multiple members of a class of COCs are present which exert additive effects, it is also appropriate to utilize an ecological hazard index methodology (if all COCs are eliminated at this point, the ecological risk assessment process ends and the items listed in paragraphs (8) and (9) of this subsection are not required); (8) develop an "uncertainty analysis" which discusses the major areas of uncertainty associated with the screening-level ecological risk assessment, including a justification for not developing PCLs for particular COCs/pathways, if appropriate (e.g., NOAEL hazard quotient > 1 > LOAEL hazard quotient, an evaluation of the likelihood of ecological risk, a discussion of the half-life of the COCs, etc.); however, when multiple members of a class of COCs are present which exert additive effects, it is also appropriate to utilize an ecological hazard index methodology (if all COCs are eliminated at this point, the ecological risk assessment process ends and the item listed in paragraph (9) of this subsection is not required); (9) calculate medium-specific PCLs bounded by the NOAEL and the LOAEL used in paragraph (7) of this subsection for those COCs that are not eliminated as a result of the hazard quotient exercises or the uncertainty analysis; and (10) make a recommendation for managing ecological risk at the affected property based on the final ecological PCLs, unless proceeding under Tier 3 (may be included as part of the affected property assessment report, self-implementation notice, or the response action plan). (d) Tier 3: site-specific ecological risk assessment. When any of the Tier 2 PCLs, as described in subsection (c) of this section, are considered by the person to be inappropriate or not reflective of existing conditions at the affected property, or when otherwise elected, the person may conduct a site-specific ecological risk assessment. If the person elects to begin the ecological evaluation of the affected property by proceeding directly to a site-specific ecological risk assessment, applicable components of a Tier 2 screening-level ecological risk assessment shall be incorporated, including subsections (c)(2) - (4), (8), and (10) of this section and other requirements of subsection (c) of this section as determined appropriate by the executive director. The purpose of the optional site-specific ecological risk assessment shall be to incorporate additional information obtained through the performance of site-specific studies designed to provide a more empirical evaluation of ecological risk at the affected property. The result of the site-specific ecological risk assessment will be the development of site-specific Tier 3 PCLs, a determination that there is no ecological risk, or a conclusion that ecological risk is not apparent based on site-specific information. Site-specific studies which may be conducted include but are not limited to: (1) development of site-specific bioaccumulation factors through the collection and analysis of tissue samples from appropriate ecological receptors. (2) performance of toxicological testing of the impacted media via exposure to an appropriate test species. (3) comparison of site data (e.g., macroinvertebrate diversity surveys) to like data from a reference area. (4) other studies designed to obtain a preponderance or "weight-of-evidence" to draw conclusions about ecological risk. (e) Cross-media transfers of COCs. In situations where cross-media transfer of a COC from a source medium to a POE within an exposure medium must occur for the receptor to be exposed, then the person shall use the cross-media natural attenuation factor equations as shown in the figure in §350.75(b)(1) of this title (relating to Tiered Human Health Protective Concentration Level Evaluation) to calculate the PCL. In lieu of using the human health RBEL referenced in the figures, the person shall use the ecological PCL established under subsections (c) or (d) of this section. (f) Ecological risk management options. After the ecological risk has been quantified and PCLs have been established as specified in subsections (c) or (d) of this section and it has been determined that the ecological PCL is the critical PCL, or is the only PCL, the person may either: (1) take action to remove and/or decontaminate the impacted media and COCs as described in §350.32 of this title (relating to Remedy Standard A); or (2) remove, decontaminate, and/or control the impacted media and COCs or, when after consultation with the Natural Resource Trustees, it is determined appropriate by the executive director, conduct an ecological services analysis in accordance with §350.33 of this title (relating to Remedy Standard B). The ecological services analysis considers the ecological risks and benefits of the potential response actions available under Remedy Standard B at the affected property and, as appropriate, factors in compensatory ecological restoration in lieu of or in addition to remediation as a means of managing residual ecological risk.</content><note type="source"><p>Source Note: The provisions of this §350.77 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526; amended to be effective March 19, 2009, 34 TexReg 1866.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scD/s350.78"><num value="350.78">§350.78</num><heading>Determination of Critical Protective Concentration Levels</heading><content>(a) For each individual COC for which PCLs have been developed in response to §350.71(k) of this title (relating to General Requirements), the person shall establish the critical PCL. The critical PCL is the lowest PCL for a particular environmental medium considering all the exposure pathways for which a PCL is developed in accordance with §350.75(i) of this title (relating to Tiered Human Health Protective Concentration Level Evaluation) and/or §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels).(b) If the critical groundwater PCL, or an attenuation action level developed in accordance with §350.33(f) of this title (relating to Remedy Standard B), is greater than the aqueous solubility limit for that COC, then the COC should be addressed as NAPL should any NAPLs be present.(c) If the critical PCL for a COC established in subsection (a) of this section is less than the method quantitation limit as defined in §350.4 of this title (relating to Definitions and Acronyms) or background concentration for that COC as determined in accordance with §350.51(l) and (m) of this title (relating to Affected Property Assessment), then the greater of the method quantitation limit or background concentration is the critical PCL for that COC.(d) As an additional requirement, the critical PCL and any attenuation action level must ensure that the explosive vapor provisions set forth in §350.31(c) of this title (relating to General Requirements for Remedy Standards) are met.</content><note type="source"><p>Source Note: The provisions of this §350.78 adopted to be effective September 23, 1999, 24 TexReg 7436.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scD/s350.79"><num value="350.79">§350.79</num><heading>Comparison of Chemical of Concern Concentrations to Protective Concentration Levels</heading><content>The person shall follow the procedures of this subsection to determine if a response action under this chapter is necessary to protect human health and the environment, and if a response action is necessary, then to determine if the remedy standard is attained. If the person satisfactorily demonstrates that all reasonably available analytical technology (e.g., selected ion monitoring) has been used to show that the COC cannot be measured to the method quantitation limit due to sample specific interferences, then the person shall be allowed to determine attainment based on the sample detection limit. The person shall make these determinations using the procedures described in either paragraph (1) or (2) of this subsection. (1) The person may make a direct comparison between individual measurements of COC concentrations within environmental media and the critical PCLs. If the concentrations of a COC within an environmental medium exceeds a critical PCL, then a response action is required. (2) The person may determine if a response action is required by using appropriate statistical methods provided in subparagraphs (A) or (B) of this paragraph. (A) In order to determine if the concentrations of the COC at an affected property exceed a critical PCL the person shall conduct a statistical test of the following set of hypotheses: (i) the null hypothesis (Ho ) is that the mean of the COC concentrations in the affected property is equal to or greater than the critical PCL; (ii) the alternative hypothesis (Ha ) is that the mean COC concentration is less than the critical PCL; (iii) the test is performed at a Type I error rate of 5%; and (iv) any statistical model used for testing this hypothesis set must be demonstrated to meet these performance standards. (B) In order to determine if the concentration of a COC in an environmental medium at the affected property is greater than the COC concentration for background areas, the person will use a statistical test meeting the following performance standards: (i) the null hypothesis (Ho ), in conjunction with any supporting assumptions, is equivalent to the statement that the mean of the COC concentrations in the two areas are identical; (ii) the alternative hypothesis (Ha ), is equivalent to the statement that the mean of the COC concentrations at the affected property exceeds that population of background concentrations; and (iii) the test is performed at a Type I error rate of 20% and the test must have a demonstrable power of 80% for an alternative hypothesis equivalent to a 100% difference in population means in the Student's ''t'' test. Alternative statistical methods for comparing affected property COC concentrations to background COC concentrations may be approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §350.79 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c350/scE"><num value="E">SUBCHAPTER E</num><heading>REPORTS</heading><section identifier="/us/state/tx/tac/t30/p1/c350/scE/s350.90"><num value="350.90">§350.90</num><heading>Spatial and Electronic Information</heading><content>(a) When required, the person shall provide accurate spatial coordinates and associated data attributes that are reported in a format approved or required by the executive director.(b) Reports required by this subchapter shall be submitted in a format, including an electronic format, and according to a schedule established by the executive director.</content><note type="source"><p>Source Note: The provisions of this §350.90 adopted to be effective March 19, 2007, 32 TexReg 1526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scE/s350.91"><num value="350.91">§350.91</num><heading>Affected Property Assessment Report</heading><content>(a) The person shall include the contact and identifications as described in paragraphs (1) - (3) of this subsection in an affected property assessment report (APAR):(1) the name, mailing address, and telephone number of the contact person or office for the on-site affected property;(2) the program and identification numbers for the project, if any (e.g., Solid Waste Registration number, Voluntary Cleanup Program number, etc.); and(3) the physical address or location of the affected property, including accurate latitude and longitude and associated spatial data attributes in a format approved or required by the executive director.(b) An APAR shall document descriptions of procedures and conclusions of the assessment and shall include all information required to meet the requirements of §350.51 of this title (relating to Affected Property Assessment), §350.52 of this title (relating to Groundwater Resource Classification) and §350.53 of this title (relating to Land Use Classification). This includes, but is not limited to:(1) the classification of the groundwater(s) at an affected property including all supporting data and results;(2) the classification of the land use(s) of the affected property;(3) the identification and characterization of all source areas (e.g., NAPLs);(4) a characterization of the local geology and hydrogeology;(5) the direction and rate of movement, composition, and representative concentrations of COCs in environmental media (including the potential for migration to other media);(6) an identification of all complete or reasonably anticipated to be completed exposure pathways, and an identification of other exposure pathways evaluated in accordance with §350.71(c)(8) of this title (relating to General Requirements) and an explanation of why those pathways were not considered to be complete or reasonably anticipated to be completed;(7) as required, a completed Tier 1 Exclusion Criteria Checklist and, if appropriate, a reasoned justification and/or an expedited stream evaluation for terminating the ecological risk assessment, or as required a Tier 2 screening-level ecological risk assessment, and/or a Tier 3 site-specific ecological risk assessment as specified in §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels);(8) summaries of sampling methodology;(9) all analytical data in accordance with §350.54 of this title (relating to Data Acquisition and Reporting Requirements);(10) documentation that the data necessary to support the development of PCLs and remedy selection have been adequately and appropriately collected;(11) documentation of the derivation of all RBELs and PCLs and the determination of the critical PCLs for environmental media including all associated assumptions and calculations;(12) a tabular comparison between concentrations of COCs and the critical PCLs. If statistical or geostatistical methods are used to develop representative concentrations of COCs, then the person shall include the following:(A) a discussion of the data collection effort from an environmental medium to support this determination (e.g., judgmental samples, random sampling design, etc.);(B) the statistical or geostatistical methodology applied; and(C) the assumptions of the statistical or geostatistical method and how those assumptions are met.(13) graphical representations (e.g., maps and cross-sections) of the soil and/or groundwater PCLE zone(s), location of other environmental media which exceeds the respective critical PCLs, and the plume management zone if applicable;(14) a description of any exposure conditions which require notice under §350.55(e) of this title (relating to Notification Requirements) and any certification required under §350.55(d) and (e) of this title;(15) accurate spatial coordinates and associated data attributes, in a format approved or required by the executive director, for all locations where samples of environmental media were collected or where other testing was conducted (e.g., water wells and monitor wells which were sampled or which were used for aquifer testing, soil sampling locations, surface water and sediment sampling locations, and air sampling locations); and(16) any other reasonable information required by the executive director.</content><note type="source"><p>Source Note: The provisions of this §350.91 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526; amended to be effective March 19, 2009, 34 TexReg 1866.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scE/s350.92"><num value="350.92">§350.92</num><heading>Self-Implementation Notice</heading><content>The person shall include the following information in a self-implementation notice (SIN):(1) the person shall include the following contact and identifications:(A) the name, mailing address, and telephone number of the contact person or office for the on-site affected property;(B) the program and identification numbers for the project, if any (e.g., Solid Waste Registration number, Voluntary Cleanup Program number, etc.); and(C) the physical address or location of the affected property;(2) a list of the COCs which require a response action;(3) a description of the qualitative and quantitative response action objectives to be achieved by the response action;(4) a description of any exposure conditions which require notice under §350.55(e) of this title (relating to Notification Requirements) and any certification required under §350.55(d) and (e) of this title;(5) a description of the response action chosen to achieve Remedy Standard A;(6) acknowledgment that any permits needed to implement the remedy will be obtained prior to implementation;(7) a schedule for implementation and completion of the response action;(8) if applicable, a copy of the proposed institutional control for §350.31(h)(1) of this title (relating to General Requirements for Remedy Standards); and(9) any other reasonable information required by the executive director.</content><note type="source"><p>Source Note: The provisions of this §350.92 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526; amended to be effective March 19, 2009, 34 TexReg 1866.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scE/s350.93"><num value="350.93">§350.93</num><heading>Response Action Effectiveness Report</heading><content>The person shall include the following information in a response action effectiveness report (RAER):(1) a summary of the response actions taken since the last reporting period;(2) for each environmental medium, a comparison among the critical PCL; the initial concentration of COCs; and the current (i.e., at the time of RAER submittal) concentrations of COCs;(3) an estimate of the percentage of the response action which has been completed;(4) an estimate in years of the additional time necessary to complete the response actions;(5) a determination whether sufficient progress is being made to achieve the selected remedy standard within a reasonable time frame given the particular circumstances of an affected property;(6) if applicable, a copy of the proposed institutional control for §350.31(h) of this title (relating to General Requirements for Remedy Standards); and(7) any other reasonable information required by the executive director.</content><note type="source"><p>Source Note: The provisions of this §350.93 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scE/s350.94"><num value="350.94">§350.94</num><heading>Response Action Plan</heading><content>(a) The person shall address all environmental media containing COCs in excess of the critical PCLs in a response action plan (RAP).(b) The RAP must clearly state property-specific response objectives which are consistent with the response objectives specified in §350.33 of this title (relating to Remedy Standard B), or §350.32 of this title (relating to Remedy Standard A) if a person chooses to await executive director approval of a RAP under Remedy Standard A.(c) The person must demonstrate that the proposed property-specific response actions are capable of achieving the response action objectives within a reasonable time frame as specified in §350.33 of this title (relating to Remedy Standard B), or §350.32 of this title (relating to Remedy Standard A) if a person chooses to await executive director approval of a RAP under Remedy Standard A.(d) If monitoring of environmental media is proposed during the response action, the RAP shall address the proposed monitoring frequencies, parameters, locations, analytical methods, and all associated quality control procedures.(e) The RAP shall describe any soil and/or groundwater treatment systems proposed as a part of the response actions for the affected property.(1) The person shall list necessary inspection, operation and maintenance tasks, as well as characterize optimum operating conditions for any treatment system.(2) The person shall discuss potential problems that can reasonably be expected to occur and indicate how they propose to respond to those potential problems.(3) The person shall identify any permits needed to construct and/or implement the remedy.(f) The person shall include a discussion of any sampling to be conducted to demonstrate conformance with the response objectives and to meet all requirements of §350.79 of this title (relating to Comparison of Chemical of Concern Concentrations to Protective Concentration Levels). This sampling discussion shall include:(1) the data collection effort from an environmental medium to support this determination (e.g., judgmental samples, random sampling design, etc.);(2) the statistical or geostatistical methodology which will be applied, if any; and(3) the assumptions of the statistical or geostatistical method and how those assumptions are met.(g) The RAP shall specify the type, location, duration, and implementation schedule for the various removal actions, decontamination measures, and any physical and/or institutional controls to be implemented as the response action for the affected property.(h) The person shall include a schedule for submission of RAERs to the executive director.(i) The person shall include a copy of the institutional control they plan to use to meet the requirements of §§350.31(g) and (h); 350.74(b)(1); 350.74(j)(2)(L); or 350.51(l)(3) and (4) of this title (relating to General Requirements for Remedy Standards; Development of Risk-Based Exposure Limits; and Affected Property Assessment, respectively).(j) Cost information for the recommended response action and comparative cost analyses for a number of response actions may be required by specific program areas.(k) For Remedy Standard B, the person shall include the following information regarding post-response action care in a RAP:(1) a description of the monitoring program for the post-response action care period including, but not limited to, the following where applicable:(A) the type of monitoring to be performed (e.g., groundwater, soil, and soil gas);(B) plot plan(s) indicating monitoring locations (including attenuation monitoring points);(C) well construction details;(D) environmental media monitoring frequency;(E) COCs to be analyzed;(F) sampling procedures, chain of custody protocols, and laboratory methods; and(G) quality assurance/quality control procedures in accordance with §350.54 of this title (relating to Data Acquisition and Reporting Requirements);(2) a description of and schedule for the inspection, operation, and maintenance of any physical controls for the post-response action care period;(3) a description of the proposed post-response action land use and a demonstration that the proposed use:(A) will not compromise the integrity of the physical controls;(B) will not interfere with the function of the monitoring systems;(C) will not pose a threat to human health or the environment; and(D) will be in accordance with any institutional controls.(4) a written financial assurance cost estimate, when applicable, for performing the post-response action care, which has been prepared in accordance with §350.33(l) of this title (relating to Remedy Standard B);(5) the affidavit required under §350.33(n)(1) of this title (relating to Remedy Standard B) for the special small business consideration, as applicable;(6) a reporting schedule for submission of the PRACRs under Remedy Standard B based on annual reporting unless the executive director approves an alternate reporting schedule. Alternate schedules may have a greater or lesser period, or may specify quarterly reporting in the earlier post-response action care period, decreasing to annual, biannual or other appropriate schedule.(l) Any other reasonable information required by the executive director.</content><note type="source"><p>Source Note: The provisions of this §350.94 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scE/s350.95"><num value="350.95">§350.95</num><heading>Response Action Completion Report</heading><content>(a) For both Remedy Standard A and B, the person shall include in the response action completion report (RACR):(1) information specified in §350.111(c) of this title (relating to Use of Institutional Controls) whenever an institutional control will be placed in the real property records of the county for an off-site property or leased lands;(2) all analytical data prepared and presented in accordance with §350.54 of this title (relating to Data Acquisition and Reporting Requirements);(3) a description of the volume and final disposal or reuse location, and a copy of any waste manifests or other documentation of disposition for waste or environmental media which were removed from the affected property; and(4) if statistical or geostatistical methods are used to demonstrate attainment of the response objectives, the person shall include the following:(A) a discussion of the data collection effort from an environmental medium to support this determination (e.g., judgmental samples, random sampling design, etc.);(B) the statistical or geostatistical methodology applied; and(C) the assumptions of the statistical or geostatistical method and how those assumptions are met.(b) When the person selects Remedy Standard A, the RACR shall include information which documents that the requirements for response actions stated in §350.31 and §350.32 of this title (relating to General Requirements for Remedy Standards and Remedy Standard A, respectively) have been fulfilled. When applicable, the report shall also include a copy of the document that the person proposes to use to fulfill the institutional control requirements of §350.31(g) of this title (relating to General Requirements for Remedy Standards) when the affected property has been restored for commercial/industrial land use, the requirements of §350.51(l)(3) or (4) of this title (relating to Affected Property Assessment) when a non-default exposure area has been used, the requirements of §350.74(b)(1) of this title (related to Development of Risk-Based Exposure Limits) when occupational inhalation criteria have been used as RBELs, or the requirements of §350.74(j)(2) of this title (related to Development of Risk-Based Exposure Limits) when non-default RBEL exposure factors have been used.(c) When the person selects Remedy Standard B, the RACR shall include information which documents that the response actions described in the approved RAP have been completed. The report shall:(1) include a demonstration that the requirements of §350.31 and §350.33 of this title (relating to General Requirements for Remedy Standards and Remedy Standard B, respectively) have been fulfilled for the affected property based upon concentration of COCs remaining at the property and the application of physical and institutional controls; and(2) document that any physical control, or combination of physical controls, (e.g., caps, slurry walls, treatment which does not constitute decontamination, and/or landfills) has been constructed or completed and is functioning as described in the approved RAP.(d) In situations where soils which contain COCs are relocated for reuse in accordance with §350.36 of this title (relating to Relocation of Soils Containing Chemicals of Concern for Reuse Purposes), the person shall also provide:(1) documentation of the prior written landowner consent required in §350.36(d) of this title (relating to Relocation of Soils Containing Chemicals of Concern for Reuse Purposes) for soil reuse on property not owned by the person; and(2) documentation that any asphalt mix or road base mix meets the specifications required by the user when requested by the executive director.(e) The person shall provide any other reasonable information required by the executive director.</content><note type="source"><p>Source Note: The provisions of this §350.95 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scE/s350.96"><num value="350.96">§350.96</num><heading>Post-Response Action Care Reports</heading><content>The person shall include the following information in a post-response action care report (PRACR):(1) the results of any monitoring program with all analytical data prepared and presented in accordance with §350.54 of this title (relating to Data Acquisition and Reporting Requirements);(2) a summary of activities related to the inspection, operation, and maintenance of physical controls;(3) a discussion of any corrective actions taken in response to failure of institutional and/or physical controls; and(4) any other reasonable information required by the executive director.</content><note type="source"><p>Source Note: The provisions of this §350.96 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c350/scF"><num value="F">SUBCHAPTER F</num><heading>INSTITUTIONAL CONTROLS</heading><section identifier="/us/state/tx/tac/t30/p1/c350/scF/s350.111"><num value="350.111">§350.111</num><heading>Use of Institutional Controls</heading><content>(a) Whenever required by this chapter, the person or landowner shall file a copy of the appropriate deed notice, VCP certificate of completion or restrictive covenant in the real property records of the county in which the property is located to notify future owners of any limitations on the use of the property. Deed notices, VCP certificates of completion and restrictive covenants shall include the following information:(1) a metes and bounds description of the portion(s) of the affected property to which the institutional control applies;(2) a plat map clearly demarcating the portion(s) of the affected property to which the institutional control applies. The map must contain a north arrow, a correlating map scale, and a legend identifying any used symbols or abbreviations;(3) a certification by a registered professional land surveyor so registered by the Texas Board of Professional Surveying attesting to the accuracy of the descriptions provided in paragraphs (1) and (2) of this subsection;(4) a statement discussing the appropriate land use (i.e., residential or commercial/industrial) for the affected property;(5) an explanation as to which environmental media contain COCs above PCLs;(6) a statement documenting any property use limitations or any requirements for maintenance of physical and/or institutional controls, or compliance with health and safety plans;(7) the TCEQ Program and identifier number, and the availability of more detailed information at or through the TCEQ Central Records Office or Web Site; and(8) the physical address and mailing address for the TCEQ Central Records Office.(b) The person shall record a deed notice, VCP certificate of completion or by agreement with an innocent landowner cause a restrictive covenant to be recorded in accordance with subsection (c) of this section and the additional applicable requirements detailed in paragraphs (1) - (14) of this subsection, unless the affected property is subject to a zoning or governmental ordinance that is equivalent to the deed notice, VCP certificate of completion or restrictive covenant that would otherwise be required under this subsection.(1) For on-site and off-site properties where an institutional control is required pursuant to §350.31(h) of this title (relating to General Requirements for Remedy Standards), the person shall file a deed notice or VCP certificate of completion which indicates that long-term response actions are being conducted at the affected property.(2) For on-site and off-site properties that have achieved Remedy Standard A for commercial/industrial land use, pursuant to §350.31(g) of this title (relating to General Requirements for Remedy Standards) the person shall note in a deed notice or VCP certificate of completion that if any person desires to use the property for residential purposes, they must first notify the commission at least 60 days in advance of such use and that additional response actions may be necessary.(3) For on-site and off-site properties where an institutional control is required pursuant to §350.31(g) of this title (relating to General Requirements for Remedy Standards) because a physical and/or institutional control has been used to attain Remedy Standard B, the person shall describe in a deed notice or VCP certificate of completion the physical control (including the physical location and/or the lateral extent) and the reason the physical and/or institutional control must remain in place to be protective of human health and the environment, unless or until the agency approves any modifications.(4) For any on-site or off-site properties with changes in circumstances as discussed in §350.35 of this title (relating to Substantial Change in Circumstances) that negate the need for a deed notice or VCP certificate of completion, the person shall describe the reason the original deed notice or VCP certificate of completion is no longer necessary to protect human health and the environment. If the executive director agrees, the executive director will execute a superceding deed notice that may be filed in the deed records.(5) For on-site or off-site properties with a landowner who is an innocent owner or operator and where an institutional control is required under §350.31(g) of this title (relating to General Requirements for Remedy Standards) to limit the property to commercial/industrial land use, a restrictive covenant shall limit the property to commercial/industrial land use. The restrictive covenant shall include a statement indicating that if any person desires in the future to use the property for residential purposes, then the agency must grant approval prior to such use.(6) For on-site or off-site properties with a landowner who is an innocent owner or operator and where an institutional control is required in response to §350.31(g) of this title (relating to General Requirements for Remedy Standards), because a physical and/or institutional control has been used to obtain Remedy Standard B, a restrictive covenant shall compel the maintenance of or prohibit the removal of the physical control and shall describe any physical control (including the physical location and/or lateral extent) and the reason the physical control and/or institutional control must remain in place to be protective of human health and the environment. The restrictive covenant shall include a statement indicating that if any person desires in the future to alter the physical or institutional control, the agency must grant prior approval to any such changes.(7) For any on-site or off-site properties with changes in circumstances as discussed in §350.35 of this title (relating to Substantial Change in Circumstances) that negate the need for a restrictive covenant, the person shall describe the reason the original restrictive covenant is no longer necessary to protect human health and the environment. If the executive director agrees, the executive director will execute a release of restrictive covenant that may be filed in the deed records.(8) For on-site and off-site properties where an institutional control is required pursuant to §350.51(l)(3) of this title (relating to Affected Property Assessment), the person shall indicate, in a deed notice or VCP certificate of completion, the size of the assumed exposure area for residents and that if future exposures are limited to smaller areas, the affected property should be reevaluated to ensure protection of human health.(9) For on-site and off-site properties where an institutional control is required pursuant to §350.51(l)(4) of this title (relating to Affected Property Assessment), the person shall indicate, in a deed notice or VCP certificate of completion, the size of the assumed exposure area for commercial/industrial workers and that if future exposures are limited to smaller areas, the affected property should be reevaluated to ensure protection of human health.(10) For on-site and off-site properties with a landowner who is an innocent owner or operator and where an institutional control is required pursuant to §350.51(l)(3) of this title (relating to Affected Property Assessment), a restrictive covenant shall indicate the size of the assumed exposure area for residents and prohibit subdivision of the property into individual tracts smaller than the assumed exposure area. The restrictive covenant shall include a statement indicating that if any person desires in the future to subdivide the property, the agency must grant prior approval to any such changes.(11) For on-site and off-site properties with a landowner who is an innocent owner or operator and where an institutional control is required pursuant to §350.51(l)(4) of this title (relating to Affected Property Assessment), a restrictive covenant shall indicate the size of the assumed exposure area for commercial/industrial workers and prohibit subdivision of the property into individual tracts smaller than the assumed exposure area. The restrictive covenant shall include a statement indicating that if any person desires in the future to subdivide the property, the agency must grant prior approval to any such changes.(12) For on-site and off-site properties where an institutional control is required pursuant to §350.74(j)(2)(L) of this title (relating to Development of RiskBased Exposure Limits), the person shall indicate, in a deed notice or VCP certificate of completion, the approved exposure frequency and duration and that exposures exceeding these approved levels are not protective of human health.(13) For on-site and off-site properties with a landowner who is an innocent owner or operator and where an institutional control is required pursuant to §350.74(j)(2)(L) of this title (relating to Development of RiskBased Exposure Limits), a restrictive covenant shall indicate the approved exposure frequency and duration and prohibit exposures exceeding these approved levels. The restrictive covenant shall include a statement indicating that if any person desires to change the exposure frequency and/or duration, the agency must grant approval prior to any such changes.(14) For on-site and off-site properties where an institutional control is required pursuant to §350.74(b)(1) and §350.31(g) of this title (relating to Development of Risk-Based Exposure Limits, and General Requirements for Remedy Standards, respectively) because occupational inhalation criteria are used as the basis for determining the protective concentration of COCs in the working air environment, the person shall note, in a deed notice or VCP certificate of completion, the fact that the response action taken in response to this chapter relies on monitoring air concentrations of COCs and compliance with occupational inhalation criteria and a required health and safety plan for the affected property.(c) The person shall submit a written request to the landowner to obtain permission to file the deed notice or VCP certificate of completion or to solicit agreement to have an innocent landowner execute a restrictive covenant. This written request must contain a copy of the proposed deed notice, VCP certificate of completion or restrictive covenant, the address and phone number of the commission's Public Interest Counsel as someone the landowner may contact, and a clear explanation as to the content and purpose of the institutional control. The person shall obtain written consent from the landowner for the filing of the deed notice or VCP certificate of completion prior to filing of a deed notice or VCP certificate of completion required to be filed under this chapter in the real property records unless the person is a governmental entity that is not a responsible party or subsections (b)(4), (d), or (f) of this section apply. Restrictive covenants shall be executed only by the landowner. A restrictive covenant in favor of TCEQ and the State of Texas which runs with the land shall be the required institutional control with the exception of institutional controls required under §350.31(h) and §350.74(b)(1) of this title (relating to General Requirements for Remedy Standards and Development of Risk-Based Exposure Limits, respectively) unless information is presented which demonstrates that:(1) the landowner is not an innocent owner or operator as defined in §350.4 of this title (relating to Definitions and Acronyms), in which case the person shall file a deed notice or VCP certificate of completion;(2) it is technically impracticable to obtain a residential-based Remedy Standard A response action and an innocent landowner refuses to execute a restrictive covenant, or a non-innocent landowner refuses to consent to the filing of a deed notice or VCP certificate of completion; a court of competent jurisdiction has determined the amount of compensation due the landowner as compensation for filing a deed notice or VCP certificate of completion in the real property records for that property; and the person has paid into the court registry compensation, if any, determined by the court, in which case the person shall file a deed notice or VCP certificate of completion;(3) after extensive and diligent inquiry by the person, the executive director concludes that the landowner cannot be found, in which case the person shall file a deed notice or VCP certificate of completion; or(4) the person is a governmental entity that is not a responsible party, and the innocent landowner refuses to execute a restrictive covenant.(d) Landowner consent shall not be required for the filing of deed notice or VCP certificate of completion under this chapter if it is technically impracticable to obtain a residential-based Remedy Standard A response action, and the person demonstrates that:(1) the non-innocent landowner refuses to grant consent for the filing of a deed notice or VCP certificate of completion, or an innocent landowner refuses to file a restrictive covenant;(2) a court of competent jurisdiction has determined the amount of compensation due the landowner as compensation for filing a deed notice or VCP certificate of completion in the real property records for that property; and(3) the person has paid into the court registry compensation, if any, determined by the court.(e) The person shall provide a copy of the request for landowner consent for filing of a deed notice or VCP certificate of completion or copy of the request for the innocent landowner to execute a restrictive covenant, and proof of the date of receipt by the landowner of the request, with the RACR, unless required earlier in accordance with §350.33(f)(2), (f)(3)(F), or (f)(4)(C) of this title (relating to Remedy Standard B). Proof of written landowner consent for the filing of deed notice or a VCP certificate of completion or the written agreement of the innocent landowner to execute a restrictive covenant shall be provided to the executive director before the executive director will approve the RACR, unless the provisions in subsections (b)(4), (d) or (f) of this section are met.(f) Landowner consent for deed notice or VCP certificate of completion shall not be required if, after extensive and diligent inquiry by the person, the executive director concludes that the landowner cannot be found.</content><note type="source"><p>Source Note: The provisions of this §350.111 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c350/scG"><num value="G">SUBCHAPTER G</num><heading>ESTABLISHING A FACILITY OPERATIONS AREA</heading><section identifier="/us/state/tx/tac/t30/p1/c350/scG/s350.131"><num value="350.131">§350.131</num><heading>Purpose</heading><content>This subchapter specifies the information and procedures necessary to establish a Facility Operations Area (FOA) to address multiple sources of COCs within an operational chemical or petroleum manufacturing plant which is required to perform corrective action on property regulated under Chapter 335 of this title (relating to Industrial solid waste and municipal hazardous waste) pursuant to a hazardous waste permit or commission corrective action order.</content><note type="source"><p>Source Note: The provisions of this §350.131 adopted to be effective September 23, 1999, 24 TexReg 7436.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scG/s350.132"><num value="350.132">§350.132</num><heading>Effect</heading><content>(a) The person can propose to modify the provisions of this chapter to the extent necessary to establish an interim response action that will be protective of human health and the environment within and at the boundary of the FOA, with the exception of releases which occur after the effective date of the FOA. The person can establish a prioritization of final response actions to be initiated or completed to the extent practical during the period of FOA authorization.(b) The person must comply with all requirements of this chapter for response to affected property outside the FOA as these modifications do not extend beyond the FOA boundary.(c) The person must comply with all other applicable requirements of this chapter unless explicitly exempted from doing so under this subchapter.</content><note type="source"><p>Source Note: The provisions of this §350.132 adopted to be effective September 23, 1999, 24 TexReg 7436.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scG/s350.133"><num value="350.133">§350.133</num><heading>Duration and Termination</heading><content>(a) If granted, these modifications may remain in effect for the duration of active industrial operations within the FOA.(b) The allowance for the use of the FOA is subject to review at time of renewal of the hazardous waste permit or commission corrective action order for any changed conditions in response to §350.35 of this title (relating to Substantial Change in Circumstances) which result in the FOA no longer being protective of human health and the environment, or at any other time for failing to maintain compliance with the qualifying criteria specified in this subchapter. In such situations, the executive director may direct the person to take corrective action within a certain time period to regain compliance or may initiate actions to revoke the FOA.(c) At the termination of the FOA, the person shall comply fully with this chapter, with the exception that groundwater response objectives for class 1 and 2 groundwaters present within the terminated FOA boundary may be based on response objectives for class 2 groundwater.</content><note type="source"><p>Source Note: The provisions of this §350.133 adopted to be effective September 23, 1999, 24 TexReg 7436.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scG/s350.134"><num value="350.134">§350.134</num><heading>Qualifying Criteria</heading><content>(a) The person seeking to obtain a FOA has the burden of providing sufficient evidence to the executive director that the following criteria have been met.(1) The facility must be an operational chemical or petroleum manufacturing plant with North American Industrial Classification System code numbers 325 or 324, respectively, which is actively in production of a product stream.(2) The facility must be subject to a hazardous waste permit or commission corrective action order. Facilities that are in operation but that have not received a hazardous waste permit as of the effective date of this rule shall obtain authorization for a FOA by means of a corrective action order.(3) The facility must restrict access to the FOA such that only workers and authorized visitors who have been provided appropriate training or are subject to controls on their activities are permitted to enter the FOA.(4) The facility must conduct a worker health and safety program. The facility must be able to document that the worker health and safety program meets or exceeds requirements of the Occupational Safety and Health Administration (OSHA) as demonstrated by:(A) its OSHA compliance history, or(B) results of evaluation by a third party certified industrial hygienist and safety specialist.(5) the facility must have an average of both lost workday injury case rates and injury incidence rates for the most recent three-year period at or below the most recent specific industry national average published by the Bureau of Labor Statistics.(6) The facility must have an audit of its health and safety programs by the Occupational Safety and Health Administration or a third party certified professional industrial hygienist and safety specialist anytime there is a significant change to the health and safety program, or at a minimum of every three years, the results of which indicate the program is satisfactory.(7) The facility must have a program to protect workers within the FOA from environmental media having concentrations of COCs greater than PCLs or action levels based on the health and safety program.(8) The facility must have a pollution prevention program that has as a goal the prevention of releases of COCs to environmental media within the FOA. The facility can satisfy this criterion with one or more of the following options:(A) conduct a program to inspect and maintain on an appropriate frequency the physical integrity of structures used for the manufacturing, storage and conveyance of products or feed stocks so as to prevent or, if detected, to abate unauthorized releases of COCs to environmental media. These procedures are to be applied within the FOA to all structures with potential to release COCs not already addressed by commission rules for hazardous waste management facilities (e.g., secondary containment systems for tanks);(B) some other spill prevention approach for which the facility can demonstrate equivalent performance with the program of subparagraph (A) of this paragraph; or(C) acceptance of the facility into a commission-sponsored multi-media voluntary pollution prevention program, such as Clean Industries Plus or a program deemed equivalent by the executive director.(9) The facility must not have any significant outstanding non-compliance issues resulting from inspections for compliance with its Resource Conservation and Recovery Act permit or any commission order.(10) The facility must be able to meet requirements for financial assurance in accordance with Chapter 37 of this title (relating to Financial Assurance).(b) Other criteria that may be considered include, but are not limited to, the risk to human health and the environment that would be presented by the granting of a FOA, the compliance history of the facility determined in accordance with Chapter 60 of this title (relating to Compliance History), as amended, and any other pertinent information.</content><note type="source"><p>Source Note: The provisions of this §350.134 adopted to be effective September 23, 1999, 24 TexReg 7436; amended to be effective March 19, 2007, 32 TexReg 1526.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c350/scG/s350.135"><num value="350.135">§350.135</num><heading>Application Requirements</heading><content>(a) The person shall submit a proposal as an application for a class 3 modification to a hazardous waste permit, or during preparation of a commission corrective action order, in a form and content acceptable to the executive director, that identifies the proposed modifications and provides the following information.(1) A description of the lateral and vertical boundaries of the proposed FOA. Facility operations area boundaries can coincide with the facility property boundary only where industrial development extends to the property line.(A) The lateral boundary shall be depicted on a to-scale map, supported by a metes and bounds description and aerial photographs, land use maps or other appropriate documentation. The exact lateral limits of a FOA are determined on a facility-by-facility basis subject to specific approval by the executive director.(B) The vertical boundary shall be depicted on to-scale cross-sections which indicate the subsurface conditions. The exact vertical limits of a FOA are determined on a facility-by-facility basis subject to specific approval by the executive director in consideration of the extent and concentrations of COCs in the groundwater-bearing units, hydrogeology, surrounding use of groundwater from those units, and availability of superior water supplies.(2) The results of an investigation that sufficiently characterizes the proposed FOA with regard to surface and subsurface conditions, groundwater quality and horizontal and vertical groundwater flow pathways. Migration of COCs toward and beyond the FOA boundary must be capable of being reliably predicted and controlled.(3) The locations of any attenuation monitoring points and points of exposure in relation to the FOA boundary. There are no required points of exposure for groundwater ingestion within the FOA boundary unless water wells with potential for use are located within the FOA.(4) A description of all action levels developed for the worker health and safety program such that personal protection equipment (e.g., gloves, respirators, impervious clothing, etc.) will not be necessary to prevent contact with COCs in environmental media during performance of normal job duties, and all facility access restrictions to control exposure to environmental media containing COCs in excess of protective levels.(5) Procedures that shall be used for performing response actions for soil that will achieve protection of human health when COCs in excess of levels acceptable under the worker health and safety program are encountered in response to construction activity, excavation, etc.(6) An identification of areas of ecological impact identified within the proposed FOA and procedures for responding to these identified ecologically impacted areas which are in accordance with §350.77 of this title (relating to Ecological Risk Assessment and Development of Ecological Protective Concentration Levels).(7) Procedures for tracking and responding to releases which occur within the FOA after the effective date of the FOA in a manner that will identify and abate the source of the release, (e.g., leaking tank or piping), and restore the impacted environmental media to pre-release conditions.(8) Procedures, contingency plans, and prioritization plan with time frames for phased corrective action that shall be used for addressing COCs in groundwater and monitoring hydrogeologic conditions, to include a monitoring program at the FOA boundary and intermediate points within or beyond the FOA as necessary (e.g., attenuation monitoring points), as well as to comply with monitoring programs in response to permit provisions or hazardous waste regulations and to evaluate changes in hydrogeologic conditions and COC migration over time.(9) Procedures to reduce known NAPLs and NAPLs identified during the operational life of the FOA that:(A) are generally mobile or readily recoverable; and/or(B) would present a significant risk to human health and the environment should exposure occur at the applicable POE.(10) A cost estimate in current dollars supported with detailed calculations for hiring a third party to perform the actions specified in subparagraphs (A) and (B) of this paragraph. A third party is a party who is neither a parent nor a subsidiary of the person. The cost estimate may not incorporate any salvage value that may be realized with the sale of hazardous wastes, or non-hazardous wastes, facility structures or equipment, land, or other assets associated with the facility at the time the FOA is authorized.(A) Construct physical controls, operate and monitor the response action at the FOA in accordance with this subchapter for a 30 year time period, and(B) Carry out the final response action that will achieve compliance with this chapter upon termination of the FOA. Until the person receives approval of the detailed final response action plan, the person shall sum the cost estimates to attain Remedy Standard A or B at individual SWMUs identified in the permit or corrective action order for purposes of estimating this financial assurance amount.(11) A draft document that the person proposes to use to inform others of the deferred or on-going response actions and institutional controls within the FOA. The document shall comply with the requirements of §350.111 of this title (relating to Use of Institutional Controls). The boundaries of the FOA shall be considered the affected property for purposes of complying with §350.111 of this title. The person shall provide proof of compliance with §350.111 of this title to the executive director within 90 days of authorization of the FOA.(12) A schedule of implementation for items not completed at the time of FOA authorization by hazardous waste permit modification or commission corrective action order.(13) Sufficient evidence to show compliance with the qualifying criteria identified in this subchapter.(b) The facility must obtain final authorization for the FOA as part of a hazardous waste permit modification or commission corrective action order. Revisions to existing hazardous waste permits shall be processed as class 3 modifications. As part of the final authorization process, the person shall provide notice to the public under Chapter 39 of this title (relating to Public Notice), as amended, and Chapter 305 of this title (relating to Consolidated Permits), as amended, for permitted facilities. In the case of a facility obtaining a commission corrective action order, the person shall perform public notice in the same manner as for a permitted facility.(c) Within 60 days after the effective date of the hazardous waste permit or commission corrective action order authorizing the FOA, the person shall provide proof of financial assurance to the executive director in accordance with Chapter 37 of this title (relating to Financial Assurance) for the amount required by the hazardous waste permit or commission corrective action order authorizing the FOA, except that a pay-in trust is not an eligible financial assurance mechanism. The amount of financial assurance shall be recalculated annually to account for inflation. The amount is also subject to review at time of hazardous waste permit or commission corrective action order renewal. The financial assurance amount may be revised by means of hazardous waste permit modification or commission corrective action order amendment, upon a showing by the person of changed conditions at the FOA that either increase or decrease the amount.</content><note type="source"><p>Source Note: The provisions of this §350.135 adopted to be effective September 23, 1999, 24 TexReg 7436.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c351"><num value="351">CHAPTER 351</num><heading>REGIONALIZATION</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c351/scA"><num value="A">SUBCHAPTER A</num><heading>NORTHBELT</heading><section identifier="/us/state/tx/tac/t30/p1/c351/scA/s351.1"><num value="351.1">§351.1</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:(1) Authority--The Gulf Coast Waste Disposal Authority.(2) Regional area--The area within the City of Houston, its extraterritorial jurisdiction and termed the Northbelt Service Area.</content><note type="source"><p>Source Note: The provisions of this §351.1 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scA/s351.2"><num value="351.2">§351.2</num><heading>Designation of Regional Area</heading><content>The area within the City of Houston, its extraterritorial jurisdiction, and termed the Northbelt Service Area is designated as an area in which it is necessary for the health, safety, and welfare of the people in the area that a regional system of waste collection, treatment, and disposal be implemented to serve the needs of the citizens in the area by preventing pollution and maintaining and enhancing the quality of water in the state.</content><note type="source"><p>Source Note: The provisions of this §351.2 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scA/s351.3"><num value="351.3">§351.3</num><heading>Permittee</heading><content>Subject to §26.084, all applications for domestic waste discharge permits, after June 24, 1975, for the discharge of waste in the regional area shall be in the name of the authority.</content><note type="source"><p>Source Note: The provisions of this §351.3 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scA/s351.4"><num value="351.4">§351.4</num><heading>Submission of Agreements to Executive Director</heading><content>The authority shall submit whatever binding agreements it may enter into with the entities in the regional area for the providing of regional waste collection, treatment, and disposal service to the executive director for approval.</content><note type="source"><p>Source Note: The provisions of this §351.4 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c351/scB"><num value="B">SUBCHAPTER B</num><heading>ROSILLO CREEK</heading><section identifier="/us/state/tx/tac/t30/p1/c351/scB/s351.21"><num value="351.21">§351.21</num><heading>Designation of Regional Area</heading><content>Rosillo Creek and portions of Leon, Olmos, and Salado Creeks and their respective watersheds and defined by Exhibit 2, a part of Ordinance 38511 of the City of San Antonio dated May 7, 1970, an area lying wholly within Bexar County, Texas, is designated as an area which the development and use of regional and area-wide waste collection, treatment, and disposal systems are necessary and desirable in order to prevent pollution and maintain and enhance the quality of the waters in the state.</content><note type="source"><p>Source Note: The provisions of this §351.21 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scB/s351.22"><num value="351.22">§351.22</num><heading>Designation of Regional Entity</heading><content>The City of San Antonio is designated as the governmental agency to implement the regional and area-wide system in the regional area in Rosillo Creek and portions of Leon, Olmos, and Salado Creeks and their respective watersheds.</content><note type="source"><p>Source Note: The provisions of this §351.22 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c351/scC"><num value="C">SUBCHAPTER C</num><heading>EAST FORK TRINITY RIVER</heading><section identifier="/us/state/tx/tac/t30/p1/c351/scC/s351.31"><num value="351.31">§351.31</num><heading>Definitions</heading><content>The following words and terms, when used in these §§351.31-351.35 of this title (relating to East Fork Trinity River), shall have the following meanings, unless the context clearly indicates otherwise:(1) District--The North Texas Municipal Water District.(2) Regional area--The watershed area of the East Fork of the Trinity River that lies in Dallas, Kaufman, Rockwall, and Collin Counties.</content><note type="source"><p>Source Note: The provisions of this §351.31 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scC/s351.32"><num value="351.32">§351.32</num><heading>Designation of Regional Area</heading><content>The watershed area of the East Fork of the Trinity River that lies in Dallas, Kaufman, Rockwall, and Collin Counties is designated as an area in which the implementation of a regional or area-wide system is necessary or desirable to effectuate the policy stated in §26.081.</content><note type="source"><p>Source Note: The provisions of this §351.32 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scC/s351.33"><num value="351.33">§351.33</num><heading>Designation of Regional Entity</heading><content>The North Texas Municipal Water District is designated as the governmental entity to design, construct, and be the operating agency for a regional sewerage system in the regional area and to provide the services therefor.</content><note type="source"><p>Source Note: The provisions of this §351.33 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scC/s351.34"><num value="351.34">§351.34</num><heading>Duck Creek Site</heading><content>The Duck Creek site described in the North Central Texas Council of Government's Upper Trinity River Basin comprehensive sewerage plan will not be designated as a regional sewerage treatment center.</content><note type="source"><p>Source Note: The provisions of this §351.34 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scC/s351.35"><num value="351.35">§351.35</num><heading>Additional Duties of Regional Entity</heading><content>After development of the area-wide system, the district shall provide regional wastewater collection and treatment service to all legal entities requiring such services within the defined area, upon such terms as may be agreed upon by the parties or as may be ordered by the commission if agreement cannot be reached.</content><note type="source"><p>Source Note: The provisions of this §351.35 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c351/scE"><num value="E">SUBCHAPTER E</num><heading>HARRIS COUNTY FRESH WATER SUPPLY DISTRICT NUMBER 63</heading><section identifier="/us/state/tx/tac/t30/p1/c351/scE/s351.51"><num value="351.51">§351.51</num><heading>Definitions</heading><content>The following words and terms, when used in these §§351.51-351.54 of this title (relating to Harris County Fresh Water Supply District), shall have the following meanings, unless the context clearly indicates otherwise:(1) Authority--The Gulf Coast Waste Disposal Authority.(2) Regional area--The area including and adjacent to Harris County Fresh Water Supply District 63 and Rosewood Municipal Utility District, the perimeter of which is described as follows: Beginning at the intersection of Addicks-Howell Road and Westheimer-Beeler Road, proceeding south along Addicks-Howell Road to its intersection with Brays Bayou, then east along Brays Bayou to its intersection with Synott Road, then south along Synott Road to its intersection with Alief-Clodine Road, then east along Alief-Clodine Road to its intersection with Dairy-Ashford Road, then south along Dairy-Ashford Road to its intersection with High Star Drive, then east along High Star Drive to its intersection with Cook Road, then north along Cook Road to its intersection with Seventh, then east along Seventh to its intersection with Continental Drive, then south along Continental Drive to its intersection with High Star Drive, then east along High Star Drive to its intersection with Brays Bayou, then north along Brays Bayou to its intersection with Old Westheimer Road, then north along Old Westheimer Road to its intersection with Westheimer Road (FM Road 1093), then west along Westheimer Road to its intersection with the east boundary of Rosewood Municipal Utility District, then counter-clockwise around the perimeter of Rosewood Municipal Utility District to the intersection with Westheimer-Beeler Road, then west along Westheimer-Beeler Road, to the intersection with Addicks-Howell Road (the starting point).</content><note type="source"><p>Source Note: The provisions of this §351.51 adopted to be effective February 24,1978, 3 TexReg 595; amended to be effective September 14, 1982, 7 TexReg 3183.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scE/s351.52"><num value="351.52">§351.52</num><heading>Designation of Regional Area</heading><content>The regional area including and adjacent to Harris County Fresh Water Supply District 63 and Rosewood Municipal Utility District, is designated as an area wherein it is necessary to the health, safety, and welfare of the people to implement the state policy to encourage and promote the creation and use of a regional and area-wide waste collection, treatment, and disposal system to serve the disposal needs of the citizens of that area and to prevent pollution and maintain and enhance the quality of the water in the state.</content><note type="source"><p>Source Note: The provisions of this §351.52 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scE/s351.53"><num value="351.53">§351.53</num><heading>Designation of Regional Entity</heading><content>The Gulf Coast Waste Disposal Authority is designated as the entity responsible for the planning, construction, and operation of an integrated regional wastewater treatment system for the regional area, and the regional system proposed to be developed by the authority is designated as the system which will provide waste disposal services to the regional area.</content><note type="source"><p>Source Note: The provisions of this §351.53 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scE/s351.54"><num value="351.54">§351.54</num><heading>Preparation of Plans and Contractual Instruments</heading><content>The authority, subject to the availability of funds, shall proceed as expeditiously as possible with the following:(1) the preparation of plans and specifications for the regional wastewater treatment plant facilities and the submission of this data to the executive director;(2) the preparation of contractual instruments necessary to implement the regional system and the initiation of a program designed to bring about the execution of these contractual documents.</content><note type="source"><p>Source Note: The provisions of this §351.54 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c351/scF"><num value="F">SUBCHAPTER F</num><heading>CIBOLO CREEK</heading><section identifier="/us/state/tx/tac/t30/p1/c351/scF/s351.61"><num value="351.61">§351.61</num><heading>Definitions</heading><content>The following words and terms, when used in these §§351.61-351.66 of this title (relating to Cibolo Creek), shall have the following meanings, unless the context clearly indicates otherwise:(1) Authority--The Cibolo Creek Municipal Authority.(2) Regional area--That portion of the Cibolo Creek Watershed lying in the vicinity of the cities of Cibolo, Schertz, Universal City, Selma, Bracken, and Randolph Air Force Base.</content><note type="source"><p>Source Note: The provisions of this §351.61 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scF/s351.62"><num value="351.62">§351.62</num><heading>Designation of Regional Entity</heading><content>The Cibolo Creek Municipal Authority is designated the governmental entity to develop a regional sewerage system in that area of Cibolo Creek Watershed, in the vicinity of the cities of Cibolo, Schertz, Universal City, Selma, Bracken, and Randolph Air Force Base.</content><note type="source"><p>Source Note: The provisions of this §351.62 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scF/s351.63"><num value="351.63">§351.63</num><heading>Duties of Regional Entity</heading><content>The authority shall design and construct and be the operating agency in this area, with technical advice and assistance from the San Antonio River Authority as needed and requested. Should the Cibolo Creek Municipal Authority, at any future time and for any reason, be unable to operate this system in the manner necessary to protect the waters in that portion of the Cibolo Creek Watershed, the board shall reserve the right to designate another regional or basin-wide authority to operate the system.</content><note type="source"><p>Source Note: The provisions of this §351.63 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scF/s351.64"><num value="351.64">§351.64</num><heading>Prohibition of Restrictions Limiting Service</heading><content>The authority shall not permit any covenant or other restrictions to be placed in any of its bonds or other contracts which would prohibit the authority from extending its lines and other facilities across county or service area lines to serve other entities in this area.</content><note type="source"><p>Source Note: The provisions of this §351.64 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scF/s351.65"><num value="351.65">§351.65</num><heading>Issuance of Permits</heading><content>All future permits and amendments to existing permits pertaining to discharges of domestic wastewater effluent within the Cibolo Creek regional area shall be issued only to the authority.</content><note type="source"><p>Source Note: The provisions of this §351.65 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scF/s351.66"><num value="351.66">§351.66</num><heading>Additional Duties of Regional Entity</heading><content>The Cibolo Creek Municipal Authority shall provide waste treatment and disposal services to the City of Cibolo with the facilities provided pursuant to this order at the earliest practicable time, upon such terms as may be agreed upon by the parties or as may be ordered by the commission if agreement cannot be reached. The authority also shall provide domestic and municipal waste collection, treatment, and disposal services, as required, to any legal entity requiring such services within the regional area upon such terms as may be agreed upon by the parties or as may be ordered by the commission if agreement cannot be reached.</content><note type="source"><p>Source Note: The provisions of this §351.66 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c351/scG"><num value="G">SUBCHAPTER G</num><heading>BLACKHAWK</heading><section identifier="/us/state/tx/tac/t30/p1/c351/scG/s351.81"><num value="351.81">§351.81</num><heading>Definitions</heading><content>The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:(1) Blackhawk service area--That area described as follows: Beginning at the intersection of IH 45 and FM Road 1959, proceeding west along FM Road 1959 to its intersection with Hall Road, then continuing west along the City of Friendswood's extra territorial jurisdiction (ETJ) boundary to its intersection with Clear Creek, then east following Clear Creek to its intersection with the Brazoria County and Galveston County political boundary, then south 4.49 miles following the county line, then east 500 feet to its intersection with Chigger Creek, then east following Chigger Creek 3,600 feet, then southeast 3,800 feet to its intersection with FM Road 528, then south following FM Road 528, 1.18 miles, then east to its intersection with the City of Friendswood's and City of League City's political boundary, then east following the City of Friendswood's city limit following Clear Creek to its intersection with IH 45, then north following IH 45 to its intersection with FM Road 1959 completing the perimeter.(2) Regional entities--The Gulf Coast Waste Disposal Authority and the City of Friendswood.</content><note type="source"><p>Source Note: The provisions of this §351.81 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scG/s351.82"><num value="351.82">§351.82</num><heading>Designation of Regional Area</heading><content>The area known as Blackhawk Service Area is designated as an area wherein it is necessary to the health, safety, and welfare of the people to implement the state policy to encourage and promote the creation and use of a regional and area-wide collection, treatment, and disposal system to serve the disposal needs of the citizens of that area to prevent pollution and maintain and enhance the quality of the water of the state.</content><note type="source"><p>Source Note: The provisions of this §351.82 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scG/s351.83"><num value="351.83">§351.83</num><heading>Designation of Regional Entities</heading><content>The Gulf Coast Waste Disposal Authority and the City of Friendswood as partners are jointly designated as the entities responsible for the planning, construction, and operation of an integrated regional wastewater treatment system for the Blackhawk Service Area, as set out in the regional contract between these two entities.</content><note type="source"><p>Source Note: The provisions of this §351.83 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scG/s351.84"><num value="351.84">§351.84</num><heading>Designation of Regional System</heading><content>The regional system proposed to be developed by Gulf Coast Waste Disposal Authority and the City of Friendswood within the Blackhawk Service Area is designated as the system which will provide disposal services to the area.</content><note type="source"><p>Source Note: The provisions of this §351.84 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scG/s351.85"><num value="351.85">§351.85</num><heading>Duties of Regional Entities</heading><content>Gulf Coast Waste Disposal Authority and the City of Friendswood, subject to the availability of funds, are directed to proceed as expeditiously as possible with the following:(1) the preparation of plans and specifications for the regional wastewater treatment plant facilities and the submission of this data to the executive director; and(2) the preparation of contractual instruments necessary to implement the regional system and the initiation of a program designed to bring about the execution of these contractual documents.</content><note type="source"><p>Source Note: The provisions of this §351.85 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scG/s351.86"><num value="351.86">§351.86</num><heading>Approval of Service Contracts</heading><content>The Gulf Coast Waste Disposal Authority and the City of Friendswood shall submit whatever service contracts they may enter into with the different entities within the Blackhawk Service Area for the providing of waste collection, treatment, and disposal services, to the executive director for approval; such approval shall be contingent on the reasonableness of the service contracts consistent with providing regional service for the area.</content><note type="source"><p>Source Note: The provisions of this §351.86 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scG/s351.87"><num value="351.87">§351.87</num><heading>Issuance of Permits</heading><content>All permit applications subsequent to May 27, 1975, shall be submitted in the names of the regional entities mentioned in these sections for the Blackhawk Service Area.</content><note type="source"><p>Source Note: The provisions of this §351.87 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c351/scH"><num value="H">SUBCHAPTER H</num><heading>VIDOR METROPOLITAN AREA</heading><section identifier="/us/state/tx/tac/t30/p1/c351/scH/s351.101"><num value="351.101">§351.101</num><heading>Definitions</heading><content>The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise:(1) District--The Orange County Water Control and Improvement District 1.(2) Vidor Metropolitan Area--That area which encompasses an approximately 26 square-mile area in northwest Orange County and includes the cities of Pine Forest, Rose City, and Vidor and development and semideveloped areas adjacent thereto.</content><note type="source"><p>Source Note: The provisions of this §351.101 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scH/s351.102"><num value="351.102">§351.102</num><heading>Designation of Regional Area</heading><content>The Vidor Metropolitan Area is designated as an area in which the implementation of a regional or area-wide system is necessary or desirable to effectuate the policy stated in §26.081.</content><note type="source"><p>Source Note: The provisions of this §351.102 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scH/s351.103"><num value="351.103">§351.103</num><heading>Designation of Regional Entities</heading><content>Orange County Water Control and Improvement District No. 1 is designated as the governmental entity to design, construct and be the operating agency for a regional sewage system in the Vidor Metropolitan area and to provide the services therefor.</content><note type="source"><p>Source Note: The provisions of this §351.103 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c351/scH/s351.104"><num value="351.104">§351.104</num><heading>Designation of Regional System</heading><content>After development of the area-wide system, the district shall provide regional wastewater collection and treatment service to all legal entities requiring such services within the Vidor Metropolitan Area, upon such terms as may be agreed upon by the parties or as may be ordered by the commission if agreement cannot be reached.</content><note type="source"><p>Source Note: The provisions of this §351.104 adopted to be effective February 24, 1978, 3 TexReg 595.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c352"><num value="352">CHAPTER 352</num><heading>COAL COMBUSTION RESIDUALS WASTE MANAGEMENT</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c352/scA"><num value="A">SUBCHAPTER A</num><heading>GENERAL PROVISIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c352/scA/s352.1"><num value="352.1">§352.1</num><heading>Applicability</heading><content>(a) This chapter applies to: (1) owners and operators of new and existing coal combustion residuals (CCR) landfills and surface impoundments that dispose of or manage CCR generated from the combustion of coal at electric utilities and independent power producers; (2) owners and operators of CCR disposal units located off-site of electric utility or independent power producer facilities; (3) owners and operators of inactive CCR surface impoundments located at active electric utilities and independent power producers regardless of the fuel currently used to produce electricity at the facility;(4) a lateral expansion of a CCR landfill or surface impoundment; and(5) any CCR management practice that does not meet the definition of beneficial use of CCR in 40 Code of Federal Regulations (CFR) §257.53 (Definitions) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301 ). (b) This chapter does not apply to:(1) owners and operators of CCR landfills that ceased receiving CCR before October 19, 2015;(2) owners and operators of electric utilities and independent power producers that ceased producing electricity before October 19, 2015;(3) owners and operators of surface impoundments that stopped receiving CCR and were closed, dewatered, and could no longer impound liquid, before October 19, 2015;(4) wastes, including fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated at facilities that are not part of an electric utility or independent power producer, such as manufacturing facilities, universities, and hospitals;(5) fly ash, bottom ash, boiler slag, or flue gas desulfurization materials generated primarily from the combustion of fuels (including other fossil fuels) other than coal, for the purpose of generating electricity unless the fuel burned consists of more than 50% coal on a total heat input or mass input basis, whichever results in the greater mass feed rate of coal;(6) beneficial use of CCR as defined in 40 CFR §257.53 as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301 ); (7) CCR placement at active or abandoned underground or surface coal mines;(8) owners and operators of municipal solid waste landfills that receive CCR; or(9) owners and operators of commercial industrial nonhazardous waste landfill facilities authorized by a permit issued under Chapter 335, Subchapter T of this title (relating to Permitting Standards for Owners and Operators of Commercial Industrial Nonhazardous Waste Landfill Facilities), that receive CCR.</content><note type="source"><p>Source Note: The provisions of this §352.1 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scA/s352.2"><num value="352.2">§352.2</num><heading>Applicability of Other Regulations</heading><content>The commission adopts by reference 40 Code of Federal Regulations §257.52 (Applicability of other regulations) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301).</content><note type="source"><p>Source Note: The provisions of this §352.2 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scA/s352.3"><num value="352.3">§352.3</num><heading>Definitions</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations §257.53 (Definitions) as amended through the July 2, 2015, issue of the Federal Register (80 FR 37988 ), subject to the exceptions, modifications, and additions under this section.(b) The terms used in this chapter that are not defined under this section are not given the definitions found in the United States Resource Conservation and Recovery Act. (c) The words and terms used in this chapter also have the meanings in Chapter 3 of this title (relating to Definitions) and the following additional meanings. (1) Disposal--The discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste as defined in §335.1 of this title (relating to Definitions) into or on any land or water so that such solid waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwaters. For purposes of this chapter, disposal does not include the storage or the beneficial use of coal combustion residuals. (2) Impacted property--The entire area (i.e., on-site and off-site) containing any constituents listed in Appendix IV of §352.1431 of this title (relating to Appendix IV - Constituents for Assessment Monitoring) that have been detected at statistically significant levels exceeding the groundwater protection standards as determined in this chapter from a unit subject to this chapter.(3) Leachate--Any liquid that has passed through or emerged from solid waste and contains soluble, suspended, or miscible materials removed from such wastes.(4) Licensed professional geoscientist--A geoscientist who holds a valid license issued by the Texas Board of Professional Geoscientists under the Texas Geoscience Practice Act. (5) Off-site--Property which cannot be characterized as on-site.(6) On-site--The same or geographically contiguous property which may be divided by public or private rights-of-way, provided the entrance and exit between the properties is at a cross-roads intersection, and access is by crossing, as opposed to going along, the right-of-way. Noncontiguous properties owned by the same person but connected by a right-of-way which the person controls and to which the public does not have access, is also considered on-site property.(7) Publicly accessible website--A website at which all information required to be posted is immediately available to anyone visiting the website, without requiring any prerequisite, such as a registration or submittal of personal information, including an e-mail address, or requirement to submit a document request. All required information must be clearly identifiable and must be able to be printed and downloaded by anyone accessing the website.(8) Registration--Written authorization of specific solid waste management activities relating to certain coal combustion residuals, as authorized by this chapter.</content><note type="source"><p>Source Note: The provisions of this §352.3 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scA/s352.4"><num value="352.4">§352.4</num><heading>Engineering and Geoscientific Information</heading><content>All engineering and geoscientific information submitted to the commission under this chapter shall be prepared by, or under the supervision of, a licensed professional engineer or licensed professional geoscientist, and shall be signed, sealed, and dated by qualified professionals as required by the Texas Engineering Practice Act and the Texas Geoscience Practice Act, and the licensing and registration boards under these acts.</content><note type="source"><p>Source Note: The provisions of this §352.4 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scA/s352.5"><num value="352.5">§352.5</num><heading>Laboratory Accreditation and Certification</heading><content>Environmental testing laboratories generating analytical data required under this chapter must be accredited in accordance with the Texas Commission on Environmental Quality Environmental Testing Laboratory Accreditation and Certification Program requirements of Chapter 25 of this title (relating to Environmental Testing Laboratory Accreditation and Certification).</content><note type="source"><p>Source Note: The provisions of this §352.5 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scA/s352.6"><num value="352.6">§352.6</num><heading>General Prohibitions</heading><content>In addition to the requirements of §352.101 of this title (relating to Registration Required), no person may cause, suffer, or allow the collection, handling, storage, processing, management, or disposal of coal combustion residuals (CCR) in such a manner so as to cause:(1) the discharge, or imminent threat of discharge, of CCR into, or adjacent to, the waters in the state, without obtaining specific authorization for such a discharge from the Texas Commission on Environmental Quality;(2) the creation and maintenance of a nuisance; or(3) the endangerment of the public health or welfare.</content><note type="source"><p>Source Note: The provisions of this §352.6 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c352/scB"><num value="B">SUBCHAPTER B</num><heading>REGISTRATION CONDITIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c352/scB/s352.101"><num value="352.101">§352.101</num><heading>Registration Required</heading><content>(a) Except as provided by §352.1 of this title (relating to Applicability), a person who manages or disposes of coal combustion residuals (CCR) generated from the combustion of coal at electric utilities and independent power producers in an existing landfill; or an existing, or inactive surface impoundment; shall within 365 days of the effective date of this chapter or 180 days of the United States Environmental Protection Agency's approval of the state's CCR program, whichever is later, file a registration application in accordance with this chapter.(b) Except as provided by §352.1 of this title, no person may cause, suffer, or allow the disposal or management of CCR in a new or lateral expansion of a CCR landfill or surface impoundment, unless such activity is authorized by a registration under this chapter, and shall within 365 days of the effective date of this chapter or 180 days of the United States Environmental Protection Agency's approval of the state's CCR program, whichever is later, file a registration application in accordance with this chapter.(c) The executive director may issue a registration as provided in this chapter. One or more CCR units located at the same facility, and on contiguous property must be authorized under one registration. CCR units located on non-contiguous property may not be authorized under the same registration.</content><note type="source"><p>Source Note: The provisions of this §352.101 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scB/s352.111"><num value="352.111">§352.111</num><heading>Registration Characteristics and Conditions</heading><content>The executive director shall incorporate the applicable characteristics and conditions of Chapter 305, Subchapter F of this title (relating to Permit Characteristics and Conditions) into a registration issued under this chapter.</content><note type="source"><p>Source Note: The provisions of this §352.111 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scB/s352.121"><num value="352.121">§352.121</num><heading>Duration</heading><content>A registration may be issued for the active life of the unit as well as any post-closure care period, as needed, but may be revoked or amended at any time that the owner or operator fails to meet the minimum standards set forth in this chapter, or for any other good cause.</content><note type="source"><p>Source Note: The provisions of this §352.121 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scB/s352.131"><num value="352.131">§352.131</num><heading>Amendments</heading><content>(a) A change in a term, condition, or provision of a registration requires an amendment.(b) An application requesting an amendment of a registration issued under this chapter will be processed as a major amendment or a minor amendment in accordance with §305.62 of this title (relating to Amendments), subject to the following exceptions:(1) §305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee) does not apply to a registration issued under this chapter;(2) an amendment application will be processed under this chapter and will not be processed under Chapter 281 of this title (relating to Applications Processing); and(3) a change initiated by the executive director under §305.62(d) of this title shall be processed as an amendment, and not as a modification.</content><note type="source"><p>Source Note: The provisions of this §352.131 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scB/s352.141"><num value="352.141">§352.141</num><heading>Issuance and Transfer</heading><content>(a) The executive director may issue a registration to a specific person, and a registration may not be transferred from one person to another without complying with §305.64 of this title (relating to Transfer of Permits).(b) A registration is attached to the real property to which it pertains and may not be transferred from one facility to another.</content><note type="source"><p>Source Note: The provisions of this §352.141 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c352/scC"><num value="C">SUBCHAPTER C</num><heading>REGISTRATION APPLICATION CONTENTS</heading><section identifier="/us/state/tx/tac/t30/p1/c352/scC/s352.201"><num value="352.201">§352.201</num><heading>Application Required</heading><content>Any person who is required to obtain a registration, or who requests an amendment of a registration, shall complete, sign, and submit an application on forms provided by, and in the manner required by, the executive director.</content><note type="source"><p>Source Note: The provisions of this §352.201 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scC/s352.211"><num value="352.211">§352.211</num><heading>Who Applies</heading><content>For coal combustion residuals registrations, it is the duty of the owner to submit an application for a registration, unless a facility is owned by one person and operated by another, in which case it is the duty of the facility operator to submit an application for a registration.</content><note type="source"><p>Source Note: The provisions of this §352.211 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scC/s352.221"><num value="352.221">§352.221</num><heading>Signatories to Applications</heading><content>The owner or operator shall sign an application in accordance with §305.44 of this title (relating to Signatories to Applications).</content><note type="source"><p>Source Note: The provisions of this §352.221 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scC/s352.231"><num value="352.231">§352.231</num><heading>General Application Requirements</heading><content>(a) The owner or operator applying for a registration, or registration amendment, shall submit an application containing the information required by application forms prescribed by the executive director and the information required by this subchapter.(b) The owner or operator shall provide any additional information requested by the executive director.(c) All technical reports in an application must be prepared and signed in accordance with §352.4 of this title (relating to Engineering and Geoscientific Information).(d) All certifications executed by a licensed professional engineer or licensed professional geoscientist in an application must be accompanied by all technical reports relied upon by the professional for the certification.(e) General maps shall be provided with the application in accordance with §305.45(a)(6) of this title (relating to Contents of Application for Permit) and §330.59(c) of this title (relating to Contents of Part I of the Application). In addition, topographic, aerial, and facility layout maps shall be provided that visually describe surrounding features, the facility layout, and identify unit-related details. If an application is submitted in accordance with §352.961(b) of this title (relating to Assessment of Corrective Measures), the land ownership map with accompanying landowners list must contain impacted property owner information, if applicable, in the format prescribed by this subsection.(f) The owner or operator shall verify that the design, construction, and operation of the coal combustion residuals landfill or surface impoundment meets the requirements of §352.2 of this title (relating to Applicability of Other Regulations).(g) Property owner information shall be provided in the application in accordance with §330.59(d) of this title, except §330.59(d)(2)(B) of this title.(h) In accordance with §305.53 of this title (relating to Application Fee), the application fee for a registration or amendment is $150 total, including $100 toward the application fee, and an additional $50 to provide for the cost of providing the required notice.</content><note type="source"><p>Source Note: The provisions of this §352.231 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scC/s352.241"><num value="352.241">§352.241</num><heading>Geology</heading><content>(a) A summary of the geologic conditions at the facility, including the relation of the geologic condition to each coal combustion residuals unit, must be prepared and signed in accordance with §352.4 of this title (relating to Engineering and Geoscientific Information) and included in the application. The summary must include sufficient information and data; all groundwater monitoring data required by 40 Code of Federal Regulations Part 257, Subpart D, as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301); and information required by §§352.601, 352.621, 352.631, and 352.641 of this title (relating to Placement Above the Uppermost Aquifer; Fault Areas; Seismic Impact Zones; and Unstable Areas).(b) Previously prepared documents may be submitted, but must be supplemented or updated as necessary to provide the requested information. (c) Sources and references for information must be provided.</content><note type="source"><p>Source Note: The provisions of this §352.241 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scC/s352.251"><num value="352.251">§352.251</num><heading>Location Restriction Application Submission</heading><content>In the application, the owner or operator shall submit documentation demonstrating compliance with applicable location restrictions in Subchapter E of this chapter (relating to Location Restrictions).</content><note type="source"><p>Source Note: The provisions of this §352.251 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scC/s352.261"><num value="352.261">§352.261</num><heading>Design Criteria Application Submission</heading><content>(a) In the application, the owner or operator shall submit documentation demonstrating compliance with applicable design criteria in Subchapter F of this chapter (relating to Design Criteria).(b) For new or laterally expanding coal combustion residuals landfills and surface impoundments, the owner or operator shall submit subsurface soil information. A sufficient number of borings shall be performed to establish the subsurface stratigraphy and determine geotechnical properties beneath the unit. The borings must be to a sufficient depth to identify the uppermost aquifer and any underlying hydraulically interconnected aquifers. All borings shall be conducted in accordance with established field exploration methods. The subsurface soil information must be prepared and certified in accordance with §352.4 of this title (relating to Engineering and Geoscientific Information) and shall be included with the application. The subsurface soil information must include:(1) a description of all borings drilled at the unit location, to test soils and characterize groundwater;(2) a unit map drawn to scale showing the surveyed locations and elevations of the borings;(3) cross-sections prepared from the borings depicting the generalized strata at the unit;(4) boring logs including a description of materials encountered, including any discontinuities such as fractures, fissures, slickensides, lenses, or seams;(5) a description of the geotechnical data and the geotechnical properties of the subsurface soil materials, including the suitability of the soils and strata for the intended uses; and(6) a demonstration that all geotechnical tests were performed in accordance with industry practice and recognized procedures.</content><note type="source"><p>Source Note: The provisions of this §352.261 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scC/s352.271"><num value="352.271">§352.271</num><heading>Operating Criteria Application Submission</heading><content>In the application, the owner or operator shall submit documentation demonstrating compliance with Subchapter G of this chapter (relating to Operating Criteria), including submittal of the most recent annual inspection report.</content><note type="source"><p>Source Note: The provisions of this §352.271 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scC/s352.281"><num value="352.281">§352.281</num><heading>Groundwater Monitoring and Corrective Action Application Submission</heading><content>(a) In the application, the owner or operator shall submit the following:(1) a copy of the initial and most recent annual groundwater monitoring and corrective action reports required by §352.901 of this title (relating to Applicability);(2) a description and details of the groundwater monitoring system that demonstrate compliance with the requirements of §352.911 of this title (relating to Groundwater Monitoring Systems); and(3) a description and details of the groundwater sampling and analysis program that demonstrate compliance with the requirements of §352.931 of this title (relating to Groundwater Sampling and Analysis Requirements).(b) Detection monitoring. The owner or operator shall submit sufficient information, supporting data, analyses, and where applicable the most recent alternative source demonstration, to support a detection monitoring program meeting the requirements of §352.941 of this title (relating to Detection Monitoring Program).(c) Assessment monitoring. If any Appendix III constituents adopted by reference in §352.1421 of this title (relating to Appendix III - Constituents for Detection Monitoring) have been detected in the groundwater at statistically significant increases over background values at or before the time of registration application submission, the owner or operator shall submit sufficient information, supporting data, analyses, and where applicable the most recent alternative source demonstration, to support an assessment monitoring program that meets the requirements of §352.951 of this title (relating to Assessment Monitoring Program).(d) Corrective action. If any Appendix IV constituents adopted by reference in §352.1431 of this title (relating to Appendix IV - Constituents for Assessment Monitoring) have been detected in the groundwater at statistically significant levels above the groundwater protection standards established in §352.951 of this title, the owner or operator shall submit sufficient information, supporting data, and analyses to establish a corrective action program that meets the requirements of §§352.951, 352.961, and 352.971 of this title (relating to Assessment Monitoring Program; Assessment of Corrective Measures; and Selection of Remedy).</content><note type="source"><p>Source Note: The provisions of this §352.281 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scC/s352.301"><num value="352.301">§352.301</num><heading>Closure and Post-Closure Care Application Submission</heading><content>(a) In the application, the owner or operator shall submit documentation demonstrating compliance with Subchapter J of this chapter (relating to Closure and Post-Closure Care).(b) The owner or operator must also submit the post-closure care cost estimate required by §352.1101(b) of this title (relating to Financial Assurance Required).</content><note type="source"><p>Source Note: The provisions of this §352.301 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scC/s352.311"><num value="352.311">§352.311</num><heading>Retention of Application Data</heading><content>The owner or operator shall keep records, throughout the term of the registration, of data used to complete the application and any supplemental information or material.</content><note type="source"><p>Source Note: The provisions of this §352.311 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c352/scD"><num value="D">SUBCHAPTER D</num><heading>REGISTRATION APPLICATION PROCEDURES</heading><section identifier="/us/state/tx/tac/t30/p1/c352/scD/s352.401"><num value="352.401">§352.401</num><heading>Application Deficiencies</heading><content>The executive director will notify an applicant of any additional information or application materials required to complete the application by transmitting a notice of deficiency (NOD) to the applicant. The NOD will specify a deadline for the NOD response up to 60 days from the executive director's transmittal of the NOD.</content><note type="source"><p>Source Note: The provisions of this §352.401 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scD/s352.411"><num value="352.411">§352.411</num><heading>Extensions</heading><content>The applicant may submit a written request for additional time to respond to a notice of deficiency that sets forth the reasons why the applicant cannot respond within the time provided and specifies the amount of additional time requested.</content><note type="source"><p>Source Note: The provisions of this §352.411 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scD/s352.421"><num value="352.421">§352.421</num><heading>Applications Returned</heading><content>If the executive director does not receive an adequate and timely response to a notice of deficiency by the response deadline, the executive director may return the incomplete application to the applicant.</content><note type="source"><p>Source Note: The provisions of this §352.421 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scD/s352.431"><num value="352.431">§352.431</num><heading>Public Notice of Application</heading><content>(a) Applicability. This section applies to an application for a new coal combustion residuals (CCR) registration, and an application for a major amendment of a CCR registration.(b) Public Notice. Notice of receipt of application, the executive director's initial decision, and an opportunity to provide public comment and request a public meeting shall be made in accordance with the procedures contained in §39.503(c) of this title (relating to Application for Industrial or Hazardous Waste Facility Permit), without regard to the date of administrative completeness.(c) Text of public notice. The text of the notice under this section shall include the internet address required by §352.1321 of this title (relating to Publicly Accessible Website Requirements).(d) Comment period. The public comment period for an application under this section shall be a minimum of 30 days after the publication of the notice in the newspaper.(e) Public comments. The executive director shall consider all public comments received before the close of the public comment period.</content><note type="source"><p>Source Note: The provisions of this §352.431 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scD/s352.441"><num value="352.441">§352.441</num><heading>Revised Notice of Changes to Application</heading><content>Revised notice is required if changes to an application that would constitute a major amendment under §352.131 of this title (relating to Amendments) are made after notice of receipt of application has been mailed and published.</content><note type="source"><p>Source Note: The provisions of this §352.441 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scD/s352.451"><num value="352.451">§352.451</num><heading>Public Meeting</heading><content>(a) The owner or operator under this chapter and the commission may hold a public meeting under §55.154 of this title (relating to Public Meetings) in the county in which the facility is located.(b) The commission shall hold a public meeting if a public meeting is required based on the criteria of:(1) §39.503(e) of this title (relating to Application for Industrial or Hazardous Waste Facility Permit);(2) §55.154(c) of this title; or(3) §352.961(c) of this title (relating to Assessment of Corrective Measures).(c) Notice of a public meeting shall be provided in accordance with the procedures contained in §39.503(e)(6) of this title, and shall be mailed by the chief clerk to the persons listed in §39.413 of this title (relating to Mailed Notice).(d) The purpose of a public meeting held on an application submitted under this chapter is to provide information and receive public comment. A public meeting held on an application submitted under this chapter is not a contested case hearing under the Texas Administrative Procedure Act.</content><note type="source"><p>Source Note: The provisions of this §352.451 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scD/s352.461"><num value="352.461">§352.461</num><heading>General Notice Provisions</heading><content>(a) Notice under this subchapter shall comply with the requirements of:(1) §39.405 of this title (relating to General Notice Provisions);(2) §39.407 of this title (relating to Mailing Lists);(3) §39.409 of this title (relating to Deadline for Public Comment, and for Requests for Reconsideration, Contested Case Hearing, or Notice and Comment Hearing);(4) §39.411 of this title (relating to Text of Public Notice);(5) §39.413 of this title (relating to Mailed Notice); and(6) §39.420 of this title (relating to Transmittal of the Executive Director's Response to Comments and Decision).(b) This subchapter does not create an opportunity for a contested case hearing.(c) The executive director will prepare a response to all timely, relevant and material, or significant public comment.</content><note type="source"><p>Source Note: The provisions of this §352.461 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scD/s352.471"><num value="352.471">§352.471</num><heading>Draft Registration</heading><content>Upon the executive director's preliminary determination that an application for a new registration or a major amendment of a registration meets the regulatory requirements for issuance, the executive director shall prepare a draft registration.</content><note type="source"><p>Source Note: The provisions of this §352.471 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scD/s352.481"><num value="352.481">§352.481</num><heading>Motion to Overturn the Executive Director's Decision</heading><content>The executive director's action on an application for a new registration or an amendment of a registration under this chapter is subject to §50.133(b) and §50.139 of this title (relating to Executive Director Action on Application or WQMP Update; and Motion to Overturn Executive Director's Decision).</content><note type="source"><p>Source Note: The provisions of this §352.481 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c352/scE"><num value="E">SUBCHAPTER E</num><heading>LOCATION RESTRICTIONS</heading><section identifier="/us/state/tx/tac/t30/p1/c352/scE/s352.601"><num value="352.601">§352.601</num><heading>Placement Above the Uppermost Aquifer</heading><content>The commission adopts by reference 40 Code of Federal Regulations §257.60 (Placement above the uppermost aquifer) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301).</content><note type="source"><p>Source Note: The provisions of this §352.601 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scE/s352.611"><num value="352.611">§352.611</num><heading>Wetlands</heading><content>The commission adopts by reference 40 Code of Federal Regulations §257.61 (Wetlands) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301).</content><note type="source"><p>Source Note: The provisions of this §352.611 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scE/s352.621"><num value="352.621">§352.621</num><heading>Fault Areas</heading><content>The commission adopts by reference 40 Code of Federal Regulations §257.62 (Fault areas) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301).</content><note type="source"><p>Source Note: The provisions of this §352.621 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scE/s352.631"><num value="352.631">§352.631</num><heading>Seismic Impact Zones</heading><content>The commission adopts by reference 40 Code of Federal Regulations §257.63 (Seismic impact zones) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301).</content><note type="source"><p>Source Note: The provisions of this §352.631 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scE/s352.641"><num value="352.641">§352.641</num><heading>Unstable Areas</heading><content>The commission adopts by reference 40 Code of Federal Regulations §257.64 (Unstable areas) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301).</content><note type="source"><p>Source Note: The provisions of this §352.641 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c352/scF"><num value="F">SUBCHAPTER F</num><heading>DESIGN CRITERIA</heading><section identifier="/us/state/tx/tac/t30/p1/c352/scF/s352.701"><num value="352.701">§352.701</num><heading>Design Criteria for Coal Combustion Residuals Landfills</heading><content>The commission adopts by reference 40 Code of Federal Regulations §257.70 (Design criteria for new CCR landfills and any lateral expansion of a CCR landfill) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301).</content><note type="source"><p>Source Note: The provisions of this §352.701 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scF/s352.711"><num value="352.711">§352.711</num><heading>Liner Design Criteria for Existing Coal Combustion Residuals Surface Impoundments</heading><content>(a) The owner or operator of an existing coal combustion residuals (CCR) surface impoundment must meet the requirements of this section.(1) The owner or operator of an existing CCR surface impoundment must document whether or not such unit was constructed with any one of the following:(A) a composite liner that meets the requirements of §352.701 of this title (relating to Design Criteria for Coal Combustion Residuals Landfills); or(B) an alternative composite liner that meets the requirements of §352.701 of this title.(2) The hydraulic conductivity of the compacted soil must be determined and documented using recognized and generally accepted methods.(3) An existing CCR surface impoundment is considered to be an existing unlined CCR surface impoundment if either:(A) the owner or operator of the CCR unit determines that the CCR unit is not constructed with a liner that meets the requirements of paragraph (1)(A) or (B) of this subsection; or(B) the owner or operator of the CCR unit fails to document whether the CCR unit was constructed with a liner that meets the requirements of paragraph (1)(A) or (B) of this subsection.(4) All existing unlined CCR surface impoundments are subject to the requirements of §352.1211 of this title (relating to Closure or Retrofit of Coal Combustion Residuals Units).(b) The owner or operator of the CCR unit must obtain a certification from a licensed professional engineer attesting that the documentation as to whether a CCR unit meets the requirements of subsection (a) of this section is accurate.(c) The owner or operator of the CCR unit must comply with the recordkeeping requirements specified in §352.1301 of this title (relating to Recordkeeping Requirements), the notification requirements specified in §352.1311 of this title (relating to Notification Requirements), and the internet requirements specified in §352.1321 of this title (relating to Publicly Accessible Website Requirements).</content><note type="source"><p>Source Note: The provisions of this §352.711 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scF/s352.721"><num value="352.721">§352.721</num><heading>Liner Design Criteria for New and Lateral Expansions of Coal Combustion Residuals Surface Impoundments</heading><content>The commission adopts by reference 40 Code of Federal Regulations §257.72 (Liner design criteria for new CCR surface impoundments and any lateral expansion of a CCR surface impoundment) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301).</content><note type="source"><p>Source Note: The provisions of this §352.721 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scF/s352.731"><num value="352.731">§352.731</num><heading>Structural Integrity Criteria for Existing Coal Combustion Residuals Surface Impoundments</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations (CFR) §257.73 (Structural integrity criteria for existing CCR surface impoundments) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301), subject to the additions set forth in this section.(b) The owner or operator shall comply with the following. (1) Upon activation of the Emergency Action Plan under 40 CFR §257.73(a)(3)(v), notify the executive director and appropriate local government officials verbally within 24 hours, and in writing within five days.(2) Notify the executive director in writing of significant changes to the history of construction as required by 40 CFR §257.73(c)(2) within 14 days. (3) Notify the executive director in writing of changes to the hazard potential classification within 14 days.(4) Notify the executive director and appropriate local government officials verbally within 24 hours and in writing within five days if a deficiency under 40 CFR §257.73(d)(2) could result in harm to human health, the environment, or has resulted in a release. Notify the executive director in writing within 14 days of all other deficiencies under 40 CFR §257.73(d)(2). (5) Notify the executive director in writing of intent to close a coal combustion residuals surface impoundment in accordance with 40 CFR §257.73(f)(4) within 14 days of: (A) a failure to meet the minimum safety factors during a safety factor assessment; or (B) a failure to complete a safety factor assessment in the timeframe prescribed by this section.</content><note type="source"><p>Source Note: The provisions of this §352.731 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scF/s352.741"><num value="352.741">§352.741</num><heading>Structural Integrity Criteria for New and Lateral Expansions of Coal Combustion Residuals Surface Impoundments</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations (CFR) §257.74 (Structural integrity criteria for new CCR surface impoundments and any lateral expansion of a CCR surface impoundment) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301), subject to the additions in this section. (b) The owner or operator shall comply with the following. (1) Upon activation of the Emergency Action Plan under 40 CFR §257.74(a)(3)(v), verbally notify the executive director and appropriate local government officials within 24 hours, and in writing within five days.(2) Notify the executive director in writing within 14 days of significant changes to the design and construction plans under 40 CFR §257.74(c)(2).(3) Notify the executive director in writing of changes to the hazard potential classification within 14 days.(4) Notify the executive director and appropriate local government officials verbally within 24 hours, and in writing within five days if a deficiency under 40 CFR §257.74(d)(2) could result in harm to human health, the environment, or has resulted in a release. Notify the executive director in writing within 14 days of all other deficiencies under 40 CFR §257.74(d)(2). (5) Notify the executive director in writing of intent to close a coal combustion residuals surface impoundment in accordance with 40 CFR §257.74(f)(4) within 14 days of: (A) a failure to meet the minimum safety factors during a safety factor assessment; or (B) a failure to complete a safety factor assessment in the timeframe prescribed by this section.</content><note type="source"><p>Source Note: The provisions of this §352.741 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c352/scG"><num value="G">SUBCHAPTER G</num><heading>OPERATING CRITERIA</heading><section identifier="/us/state/tx/tac/t30/p1/c352/scG/s352.801"><num value="352.801">§352.801</num><heading>Air Criteria</heading><content>The commission adopts by reference 40 Code of Federal Regulations §257.80 (Air criteria) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301).</content><note type="source"><p>Source Note: The provisions of this §352.801 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scG/s352.811"><num value="352.811">§352.811</num><heading>Run-On and Run-Off Controls for Coal Combustion Residuals Landfills</heading><content>The commission adopts by reference 40 Code of Federal Regulations §257.81 (Run-on and run-off controls for CCR landfills) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301).</content><note type="source"><p>Source Note: The provisions of this §352.811 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scG/s352.821"><num value="352.821">§352.821</num><heading>Hydrologic and Hydraulic Capacity Requirements for Coal Combustion Residuals Surface Impoundments</heading><content>The commission adopts by reference 40 Code of Federal Regulations §257.82 (Hydrologic and hydraulic capacity requirements for CCR surface impoundments) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301).</content><note type="source"><p>Source Note: The provisions of this §352.821 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scG/s352.831"><num value="352.831">§352.831</num><heading>Inspection Requirements for Coal Combustion Residuals Surface Impoundments</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations (CFR) §257.83 (Inspection requirements for CCR surface impoundments) as amended through the July 2, 2015, issue of the Federal Register (80 FR 37988), subject to the addition in this section. (b) Notify the executive director verbally within 24 hours and in writing within five days if a deficiency under 40 CFR §257.83(b)(5) could result in harm to human health, the environment, or has resulted in a release. Notify the executive director in writing within 14 days of all other deficiencies under 40 CFR §257.83(b)(5).</content><note type="source"><p>Source Note: The provisions of this §352.831 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scG/s352.841"><num value="352.841">§352.841</num><heading>Inspection Requirements for Coal Combustion Residuals Landfills</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations (CFR) §257.84 (Inspection requirements for CCR landfills) as amended through the July 2, 2015, issue of the Federal Register (80 FR 37988), subject to the addition in this section. (b) Notify the executive director verbally within 24 hours and in writing within five days if a deficiency under 40 CFR §257.84(b)(5) could result in harm to human health, the environment, or has resulted in a release. Notify the executive director in writing within 14 days of all other deficiencies under 40 CFR §257.84(b)(5).</content><note type="source"><p>Source Note: The provisions of this §352.841 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scG/s352.851"><num value="352.851">§352.851</num><heading>Pre-Opening Inspection</heading><content>For a new or lateral expansion of a coal combustion residuals (CCR) landfill or surface impoundment, the owner or operator may not commence CCR disposal or waste management in the new or laterally expanded unit until:(1) the owner or operator has submitted to the executive director a letter signed by the signatory and a licensed professional engineer stating that the unit has been constructed or expanded in compliance with the specifications of the registration; and(2) the executive director has inspected the expanded or newly constructed unit and finds it in compliance with the conditions of the registration. If within 15 days of submission of the letter required by paragraph (1) of this section, the owner or operator has not received notice from the executive director of an intent to inspect, then the executive director has waived the opportunity for prior inspection, at which point the owner or operator may commence CCR disposal or waste management.</content><note type="source"><p>Source Note: The provisions of this §352.851 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c352/scH"><num value="H">SUBCHAPTER H</num><heading>GROUNDWATER MONITORING AND CORRECTIVE ACTION</heading><section identifier="/us/state/tx/tac/t30/p1/c352/scH/s352.901"><num value="352.901">§352.901</num><heading>Applicability</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations (CFR) §257.90 (Applicability) as amended through the August 5, 2016, issue of the Federal Register (81 FR 5180), subject to the changes and additions in this section. All references in this subchapter to 40 CFR §257.95(h) (Assessment monitoring program), including those adopted by reference from 40 CFR Part 257, Subpart D, are changed to §352.951(b) of this title (relating to Assessment Monitoring Program). All references in this subchapter to 40 CFR §257.101(a) (Closure or retrofit of CCR units), including those adopted by reference from 40 CFR Part 257, Subpart D, are changed to §352.1211(b) of this title (relating to Closure or Retrofit of Coal Combustion Residuals Units).(b) The requirements of Chapter 350 of this title (relating to Texas Risk Reduction Program) are not applicable to coal combustion residuals units as defined in §352.3 of this title (relating to Definitions) and as addressed further in §352.1 of this title (relating to Applicability).</content><note type="source"><p>Source Note: The provisions of this §352.901 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scH/s352.902"><num value="352.902">§352.902</num><heading>Groundwater Monitoring and Corrective Action Report Submittal</heading><content>The Groundwater Monitoring and Corrective Action Report shall be submitted to the executive director for review no later than 30 days after the report has been placed in the facility's operating record.</content><note type="source"><p>Source Note: The provisions of this §352.902 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scH/s352.911"><num value="352.911">§352.911</num><heading>Groundwater Monitoring Systems</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations §257.91 (Groundwater monitoring systems) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301), subject to the additions in this section.(b) The plan of the groundwater monitoring system shall be submitted to the executive director for review and approval. The executive director may require the owner or operator to install additional monitoring wells to determine compliance with the requirements of this subchapter. (c) Changes to an approved groundwater monitoring system required by this section must be approved by the executive director in accordance with §352.131 of this title (relating to Amendments). (d) Installation, plugging, and abandonment of wells or borings must be done in accordance with 16 TAC Chapter 76 (relating to Licensing and Regulation of Water Well Drillers and Water Well Pump Installers).</content><note type="source"><p>Source Note: The provisions of this §352.911 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scH/s352.931"><num value="352.931">§352.931</num><heading>Groundwater Sampling and Analysis Requirements</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations §257.93 (Groundwater sampling and analysis requirements) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301), subject to the addition in this section. (b) Changes to an approved groundwater sampling and analysis program required by this section must be approved by the executive director in accordance with §352.131 of this title (relating to Amendments).</content><note type="source"><p>Source Note: The provisions of this §352.931 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scH/s352.941"><num value="352.941">§352.941</num><heading>Detection Monitoring Program</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations (CFR) §257.94 (Detection monitoring program) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301), subject to the additions in this section. (b) After making a determination of a statistically significant increase (SSI) over the background value for any Appendix III constituent adopted by reference in §352.1421 of this title (relating to Appendix III - Constituents for Detection Monitoring) at any monitoring well, the owner or operator shall notify the executive director, and any local pollution agency with jurisdiction that has requested to be notified, in writing within 14 days of this determination. (c) After making a determination of an SSI over the background value for any Appendix III constituent adopted by reference in §352.1421 of this title at any monitoring well, the owner or operator may submit an alternative source demonstration in accordance with 40 CFR §257.94(e)(2) to the executive director for review. In making a demonstration under this section, the owner or operator must: (1) notify the executive director, and any local pollution agency with jurisdiction that has requested to be notified, in writing within 14 days that the owner or operator intends to make an alternative source demonstration under this section; and(2) within 90 days of making a determination of an SSI over the background value for any Appendix III constituent adopted by reference in §352.1421 of this title, submit a report prepared and certified in accordance with §352.4 of this title (relating to Engineering and Geoscientific Information), to the executive director, and any local pollution agency with jurisdiction that has requested to be notified, demonstrating that a source other than a coal combustion residuals unit caused the SSI or that the SSI resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality.(d) If the owner or operator does not make an alternative source demonstration under this section satisfactory to the executive director, then the owner or operator shall initiate an assessment monitoring program as required in 40 CFR §257.94(e). The executive director may require the owner or operator to install additional monitoring wells to determine whether the demonstration is satisfactory. If the owner or operator does make an alternative source demonstration under this section that is satisfactory to the executive director, then the owner or operator may continue to monitor in accordance with the detection monitoring program established under this section.</content><note type="source"><p>Source Note: The provisions of this §352.941 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scH/s352.951"><num value="352.951">§352.951</num><heading>Assessment Monitoring Program</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations (CFR) §257.95 (Assessment monitoring program) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301) subject to the additions in this section.(b) The owner or operator of the coal combustion residuals (CCR) unit must establish a groundwater protection standard for each constituent in Appendix IV adopted by reference in §352.1431 of this title (relating to Appendix IV - Constituents for Assessment Monitoring) detected in the groundwater. The groundwater protection standard shall be one of the following.(1) For constituents for which a maximum contaminant level (MCL) has been established under 40 CFR §141.62 (Maximum contaminant levels for inorganic contaminants) and §141.66 (Maximum contaminant levels for radionuclides), the MCL for that constituent.(2) For constituents for which an MCL has not been established, the background concentration for the constituent established from wells in accordance with §352.911 of this title (relating to Groundwater Monitoring Systems).(3) For constituents for which the background level is higher than the levels identified under paragraphs (1) and (2) of this subsection, the background concentration.(c) The owner or operator may return to detection monitoring only after satisfying the conditions of 40 CFR §257.95(e), and after obtaining written approval from the executive director.(d) If one or more constituents in Appendix IV adopted by reference in §352.1431 of this title are detected at statistically significant levels above the groundwater protection standard established in subsection (b) of this section in any sampling event, the owner or operator shall notify the executive director, and any local pollution agency with jurisdiction that has requested to be notified, in writing within 14 days of this determination.(e) If any of the constituents listed in Appendix IV adopted by reference in §352.1431 of this title have been detected at a statistically significant level exceeding the groundwater protection standards, then the owner or operator may submit an alternative source demonstration in accordance with 40 CFR §257.95(g)(3) to the executive director for review. In making a demonstration under this subsection, the owner or operator must, within 90 days of detecting a statistically significant level above the groundwater protection standard of any constituent listed in Appendix IV adopted by reference in §352.1431 of this title, submit a report prepared and certified in accordance with §352.4 of this title (relating to Engineering and Geoscientific Information) to the executive director, and any local pollution agency with jurisdiction that has requested to be notified, demonstrating that a source other than a CCR unit caused the exceedance or that the exceedance resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality.(f) If the owner or operator does not make an alternative source demonstration under this section satisfactory to the executive director, then the owner or operator shall initiate assessment of corrective measures as required in 40 CFR §257.95(g)(4). The executive director may require the owner or operator to install additional monitoring wells to determine whether the demonstration is satisfactory. If the owner or operator does make an alternative source demonstration under this section that is satisfactory to the executive director, then the owner or operator may continue to monitor in accordance with the assessment monitoring program established under this section.</content><note type="source"><p>Source Note: The provisions of this §352.951 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scH/s352.961"><num value="352.961">§352.961</num><heading>Assessment of Corrective Measures</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations (CFR) §257.96 (Assessment of corrective measures) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301), subject to the changes and additions set forth in this section.(b) Within 30 days of completing the assessment of corrective measures required by this section, and before implementation of the remedy, the owner or operator shall submit an amendment application, on forms prescribed by the executive director, in accordance with §352.131 of this title (relating to Amendments). The owner or operator shall provide any additional information as the executive director may require to determine compliance with this section. The application must include, at a minimum:(1) documentation that characterizes the nature and extent of the release, both vertically and horizontally, and meets the applicable requirements of §352.951 of this title (relating to Assessment Monitoring Program);(2) the completed assessment of corrective measures required by this section;(3) the proposed Selection of Remedy required by §352.971 of this title (relating to Selection of Remedy);(4) a comparison of the Appendix III constituents adopted by reference in §352.1421 of this title (relating to Appendix III - Constituents for Detection Monitoring) with a statistically significant increase over the background value, and the corresponding background value at each monitoring well;(5) a comparison of the Appendix IV constituents adopted by reference §352.1431 of this title (relating to Appendix IV - Constituents for Assessment Monitoring) and the corresponding groundwater protection standard meeting the requirements of §352.951(b) of this title at each monitoring well; (6) a proposed timeline for the submission of the Corrective Action Effectiveness Report required by §352.991 of this title (relating to Corrective Action Effectiveness Report); and (7) a signed affidavit certifying that the owner or operator has complied with the applicable notification requirements of §352.951 of this title.(c) An owner or operator subject to this section and the executive director shall provide notice and hold a public meeting in accordance with Subchapter D of this chapter (relating to Registration Application Procedures) to satisfy the requirements of 40 CFR §257.96(e), unless the owner or operator held a public meeting satisfying the requirements of 40 CFR §257.96(e) prior to the application submission.</content><note type="source"><p>Source Note: The provisions of this §352.961 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scH/s352.971"><num value="352.971">§352.971</num><heading>Selection of Remedy</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations §257.97 (Selection of remedy) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301), subject to the addition in this section.(b) The final remedy selection shall be achieved through issuance of the registration amendment required under §352.961 of this title (relating to Assessment of Corrective Measures).</content><note type="source"><p>Source Note: The provisions of this §352.971 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scH/s352.981"><num value="352.981">§352.981</num><heading>Implementation of the Corrective Action Program</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations §257.98 (Implementation of the corrective action program) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301), subject to the modifications and additions in this section.(b) Prior to returning to detection monitoring or assessment monitoring, the owner or operator must submit documentation that demonstrates that the requirements of this section have been fulfilled, and the remedy has been achieved for the impacted property. The documentation submitted must include at a minimum:(1) all analytical data prepared and presented in accordance with §352.931 of this title (relating to Groundwater Sampling and Analysis Requirements) that demonstrates achievement of the remedy; (2) a narrative discussion of how the requirements of this section have been fulfilled for the impacted property; and(3) a description of the volume and final disposal location, and a copy of any waste manifests or other documentation of disposition, for waste or environmental media which were removed from the impacted property.(c) The owner or operator may return to either detection monitoring or assessment monitoring only after satisfying the conditions of this section, and after obtaining written approval from the executive director. (d) All coal combustion residuals managed under a remedy required under §352.971 of this title (relating to Selection of Remedy), or an interim measure required under this section, shall be managed in a manner that complies with all applicable United States Resource Conservation and Recovery Act and state requirements.</content><note type="source"><p>Source Note: The provisions of this §352.981 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scH/s352.991"><num value="352.991">§352.991</num><heading>Corrective Action Effectiveness Report</heading><content>The owner or operator shall provide the following information in a Corrective Action Effectiveness Report (CAER):(1) a summary of the corrective actions taken since the last reporting period;(2) a statistical comparison of the following groundwater monitoring data in accordance with §352.931 of this title (relating to Groundwater Sampling and Analysis Requirements):(A) the groundwater protection standards;(B) the initial exceedances of the groundwater protection standards of §352.951(b) of this title (relating to Assessment Monitoring Program); and(C) the current (i.e., at the time of CAER submittal) exceedances of the groundwater protection standards of §352.951(b) of this title;(3) an estimate of the percentage of the corrective actions which have been completed;(4) an estimate, in years, of the additional time necessary to complete the corrective actions;(5) a determination whether sufficient progress is being made to achieve the selected remedy within a reasonable timeframe, given the circumstances of an impacted property; and(6) any other information as required by the executive director.</content><note type="source"><p>Source Note: The provisions of this §352.991 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c352/scI"><num value="I">SUBCHAPTER I</num><heading>FINANCIAL ASSURANCE</heading><section identifier="/us/state/tx/tac/t30/p1/c352/scI/s352.1101"><num value="352.1101">§352.1101</num><heading>Financial Assurance Required</heading><content>(a) Applicability. This subchapter applies to owners and operators required to perform post-closure care as set out in Subchapter J of this chapter (relating to Closure and Post-Closure Care). Financial assurance shall be established and maintained for the duration of the post-closure care period as prescribed in §352.1241 of this title (relating to Post-Closure Care Requirements).(b) Cost estimate. The owner or operator shall prepare and include with the application for registration, a written cost estimate in current dollars of the total cost of the 30-year post-closure care period to perform post-closure care requirements as prescribed in §352.1241 of this title. The cost estimate shall be based on the costs of hiring a third-party to conduct post-closure care maintenance. The most recent of these cost estimates approved by the executive director is termed as the post-closure care cost estimate.(c) Mechanism. No more than 90 days after the executive director's approval of the registration, a financial assurance mechanism acceptable to the executive director must be submitted for the cost of post-closure care in an amount no less than the amount specified in the approved cost estimate. Financial assurance for post-closure care shall be demonstrated in compliance with Chapter 37, Subchapters A - D of this title (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Closure, Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective Action), except as indicated in §352.1111 of this title (relating to Exceptions).(d) Post-closure care financial assurance beyond the initial 30 years. Owners and operators unable to make a demonstration for ending the post-closure care period in accordance with §352.1241 of this title, shall continue to maintain financial assurance for the post-closure care period specified in §352.1241 of this title. At least 180 days before the end of the preceding post-closure care period, a written cost estimate in current dollars shall be prepared and submitted for the cost of continuing the post-closure care specified in the registration for the additional period specified in §352.1241 of this title. The cost estimate shall be based on the cost of hiring a third-party to perform the post-closure care. A financial assurance mechanism acceptable to the executive director shall be submitted for the continued post-closure care period in an amount approved by the executive director. Financial assurance for post-closure care shall be demonstrated in compliance with Chapter 37, Subchapters A - D of this title except as indicated in §352.1111 of this title.(e) Executive director executed post-closure care. The executive director may use or direct the use of post-closure care funds to perform post-closure care at a coal combustion residuals unit when the executive director determines that a person has failed to perform the post-closure care required under Subchapter J of this chapter.</content><note type="source"><p>Source Note: The provisions of this §352.1101 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scI/s352.1111"><num value="352.1111">§352.1111</num><heading>Exceptions</heading><content>Exceptions to the financial assurance requirements of Chapter 37, Subchapters A - D of this title (relating to General Financial Assurance Requirements; Financial Assurance Requirements for Closure, Post Closure, and Corrective Action; Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action; and Wording of the Mechanisms for Closure, Post Closure, and Corrective Action) as specified in §352.1101 of this title (relating to Financial Assurance Required) include:(1) §37.31 of this title (relating to Submission of Documents) is not applicable;(2) a pay-in trust as described in §37.201 of this title (relating to Trust Fund) may not be used;(3) the owner or operator authorized to use insurance as a financial assurance mechanism must use the insurance endorsement approved by the executive director rather than the certificate of insurance specified by §37.241(c) of this title (relating to Insurance);(4) the owner or operator using a financial test as described in §37.251 of this title (relating to Financial Test), or a corporate guarantee as described in §37.261 of this title (relating to Corporate Guarantee), must comply with §37.141 of this title (relating to Increase in Current Cost Estimate), except that mechanism increases must be made no later than 90 days after the close of each succeeding fiscal year;(5) the owner or operator using a local government financial test as described in §37.271 of this title (relating to Local Government Financial Test), or a local government guarantee as described in §37.281 of this title (relating to Local Government Guarantee), must comply with §37.141 of this title, except that mechanism increases must be made within 180 days after the close of each succeeding fiscal year;(6) insurance as specified in §37.241 of this title and paragraph (3) of this section may not be used if closure of the coal combustion residuals unit has been completed as specified in §352.1211 of this title (relating to Closure or Retrofit of Coal Combustion Residuals Units);(7) the wording of an instrument under Chapter 37, Subchapter D of this title used to satisfy a financial assurance condition shall be revised to replace the term "permit numbers" with the term "registration numbers."</content><note type="source"><p>Source Note: The provisions of this §352.1111 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c352/scJ"><num value="J">SUBCHAPTER J</num><heading>CLOSURE AND POST-CLOSURE CARE</heading><section identifier="/us/state/tx/tac/t30/p1/c352/scJ/s352.1200"><num value="352.1200">§352.1200</num><heading>General</heading><content>All references in this subchapter to 40 Code of Federal Regulations (CFR) §257.95(h) (Assessment monitoring program), including those adopted by reference from 40 CFR Part 257, Subpart D, are changed to §352.951(b) of this title (relating to Assessment Monitoring Program). All references in this subchapter to 40 CFR §257.101(a) (Closure or retrofit of CCR units), including those adopted by reference from 40 CFR Part 257, Subpart D, are changed to §352.1211(b) of this title (relating to Closure or Retrofit of Coal Combustion Residuals Units).</content><note type="source"><p>Source Note: The provisions of this §352.1200 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scJ/s352.1201"><num value="352.1201">§352.1201</num><heading>Inactive Coal Combustion Residuals Surface Impoundments</heading><content>The commission adopts by reference 40 Code of Federal Regulations §257.100 (Inactive surface impoundment) as amended through the August 5, 2016, issue of the Federal Register (81 FR 51802).</content><note type="source"><p>Source Note: The provisions of this §352.1201 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scJ/s352.1211"><num value="352.1211">§352.1211</num><heading>Closure or Retrofit of Coal Combustion Residuals Units</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations §257.101 (Closure or retrofit of CCR units) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301), excluding 40 CFR §257.101(a), subject to the additions in this section. (b) The owner or operator of an existing unlined coal combustion residuals (CCR) surface impoundment, as determined under §352.711 of this title (relating to Liner Design Criteria for Existing Coal Combustion Residuals Surface Impoundments), is subject to the following requirements:(1) No later than October 31, 2020, the owner or operator of the existing unlined CCR surface impoundment must cease placing CCR and non-CCR waste streams into the CCR surface impoundment and either retrofit or close the CCR unit in accordance with the requirements of §352.1221 of this title (relating to Criteria for Conducting the Closure or Retrofit of Coal Combustion Residuals Units).(2) An owner or operator of an existing unlined CCR surface impoundment that closes in accordance with paragraph (1) of this subsection must include a statement in the notification required under §352.1221 of this title that the CCR surface impoundment is closing or retrofitting under the requirements of paragraph (1) of this subsection.(3) The timeframe specified in paragraph (1) of this subsection does not apply if the owner or operator complies with the alternative closure procedures specified in §352.1231 of this title (relating to Alternative Closure Requirements).(4) At any time after the initiation of closure under paragraph (1) of this subsection, the owner or operator may cease closure activities and initiate a retrofit of the CCR unit in accordance with the requirements of §352.1221 of this title.</content><note type="source"><p>Source Note: The provisions of this §352.1211 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scJ/s352.1221"><num value="352.1221">§352.1221</num><heading>Criteria for Conducting the Closure or Retrofit of Coal Combustion Residuals Units</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations §257.102 (Criteria for conducting the closure or retrofit of CCR units) as amended through the August 5, 2016, issue of the Federal Register (81 FR 51802).(b) Before approval of a closure certification for a coal combustion residuals unit in a registration may be issued by the executive director, a financial assurance mechanism other than insurance and that is acceptable to the executive director and authorized by Subchapter I of this chapter (relating to Financial Assurance) must be in place and approved by the executive director.</content><note type="source"><p>Source Note: The provisions of this §352.1221 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scJ/s352.1231"><num value="352.1231">§352.1231</num><heading>Alternative Closure Requirements</heading><content>The commission adopts by reference 40 Code of Federal Regulations §257.103 (Alternative closure requirements) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301).</content><note type="source"><p>Source Note: The provisions of this §352.1231 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scJ/s352.1241"><num value="352.1241">§352.1241</num><heading>Post-Closure Care Requirements</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations (CFR) §257.104 (Post-closure care requirements) as amended through the August 5, 2016, issue of the Federal Register (81 FR 51802), subject to the additions under this section.(b) The owner or operator shall submit to the executive director: (1) a copy of the notification of completion of post-closure care period required by 40 CFR §257.104(e); and (2) a demonstration that the coal combustion residuals (CCR) unit poses no threat to human health, the environment, or property. (c) The post-closure period shall be extended until the executive director approves a demonstration that the CCR unit poses no threat to human health, the environment, or property. The financial assurance required in §352.1101(d) of this title (relating to Financial Assurance) shall be continued until such time that the executive director determines that post-closure care is no longer needed.</content><note type="source"><p>Source Note: The provisions of this §352.1241 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c352/scK"><num value="K">SUBCHAPTER K</num><heading>RECORDKEEPING, NOTIFICATION, AND POSTING OF INFORMATION TO THE INTERNET</heading><section identifier="/us/state/tx/tac/t30/p1/c352/scK/s352.1301"><num value="352.1301">§352.1301</num><heading>Recordkeeping Requirements</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations §257.105 (Recordkeeping requirements) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301), subject to the modification in this section. (b) The owner or operator shall retain records of groundwater monitoring and associated groundwater surface elevations for the active life and the post-closure care period of the coal combustion residuals unit.</content><note type="source"><p>Source Note: The provisions of this §352.1301 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scK/s352.1311"><num value="352.1311">§352.1311</num><heading>Notification Requirements</heading><content>The commission adopts by reference 40 Code of Federal Regulations §257.106 (Notification requirements) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301).</content><note type="source"><p>Source Note: The provisions of this §352.1311 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scK/s352.1321"><num value="352.1321">§352.1321</num><heading>Publicly Accessible Website Requirements</heading><content>(a) The commission adopts by reference 40 Code of Federal Regulations §257.107 (Publicly accessible Internet site requirements) as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301), subject to the additions and modifications in this section. (b) The website required by subsection (a) of this section must be a publicly accessible website. (c) The owner or operator shall post on the publicly accessible website, upon submittal to or receipt from the executive director or the chief clerk for the active life of the coal combustion residuals unit through the completion of the post-closure care period:(1) a complete copy of the current issued effective registration;(2) a complete copy of all applications submitted under this chapter, including any revisions;(3) a copy of public notice the owner or operator is required to publish under this chapter;(4) a copy of a draft registration prepared by the executive director;(5) a copy of the compliance summary prepared by the executive director; and(6) a copy of any other document regarding and/or summarizing the executive director's review of or initial decision on an application submitted under this chapter.(d) The owner or operator must notify the United States Environmental Protection Agency and the executive director, in a manner prescribed by each agency, within 14 days of any changes to the URL for the publicly accessible website.</content><note type="source"><p>Source Note: The provisions of this §352.1321 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section></subchapter><subchapter identifier="/us/state/tx/tac/t30/p1/c352/scL"><num value="L">SUBCHAPTER L</num><heading>APPENDICES</heading><section identifier="/us/state/tx/tac/t30/p1/c352/scL/s352.1421"><num value="352.1421">§352.1421</num><heading>Appendix III - Constituents for Detection Monitoring</heading><content>The following appendix contained in 40 Code of Federal Regulations Part 257, Subpart D, is adopted by reference: Appendix III--Constituents for Detection Monitoring (as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301)).</content><note type="source"><p>Source Note: The provisions of this §352.1421 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c352/scL/s352.1431"><num value="352.1431">§352.1431</num><heading>Appendix IV - Constituents for Assessment Monitoring</heading><content>The following appendix contained in 40 Code of Federal Regulations Part 257, Subpart D, is adopted by reference: Appendix IV--Constituents for Assessment Monitoring (as amended through the April 17, 2015, issue of the Federal Register (80 FR 21301)).</content><note type="source"><p>Source Note: The provisions of this §352.1431 adopted to be effective May 28, 2020, 45 TexReg 3464.</p></note></section></subchapter></chapter><chapter identifier="/us/state/tx/tac/t30/p1/c353"><num value="353">CHAPTER 353</num><heading>Leaking Water Wells Grant Program</heading><subchapter identifier="/us/state/tx/tac/t30/p1/c353/sc"><num value="">SUBCHAPTER </num><heading></heading><section identifier="/us/state/tx/tac/t30/p1/c353/sc/s353.1"><num value="353.1">§353.1</num><heading>Purpose</heading><content>This chapter sets forth the requirements for administration of the Leaking Water Wells Grant Program (Program), established by Texas Water Code, Chapter 28, Subchapter E. Under the Program, the commission will provide grants to offset the cost of plugging leaking water wells to eligible groundwater conservation districts for eligible projects. Any grant issued under this Program is subject to the availability of funds and the requirements in 30 Texas Administrative Code Chapter 14 and any guidance issued under the Uniform Grant and Contract Management Act, Texas Government Code Chapter 783, as it may be from time to time revised.</content><note type="source"><p>Source Note: The provisions of this §353.1 adopted to be effective July 9, 2025, 50 TexReg 3911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c353/sc/s353.2"><num value="353.2">§353.2</num><heading>Definitions</heading><content>When used in this chapter, the following words and terms shall have the following meanings, unless the context clearly indicates otherwise:(1) Approved well plugger--a Railroad Commission of Texas approved cementer as defined in 16 TAC §3.14.(2) District--a groundwater conservation district or authority created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution, which has the authority to regulate the spacing of water wells, the production of water wells, or both. (3) Leaking Water Wells Fund (Fund)--the leaking water wells fund created under TWC, §28.103 that provides funds to certain Districts to plug leaking water wells. (4) Leaking Water Wells Grant Program (Program)--the Texas Commission on Environmental Quality (commission or TCEQ) program established under TWC, §28.104 that provides funds to certain Districts to plug leaking water wells.</content><note type="source"><p>Source Note: The provisions of this §353.2 adopted to be effective July 9, 2025, 50 TexReg 3911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c353/sc/s353.3"><num value="353.3">§353.3</num><heading>Grant Eligibility.</heading><content>A District in a county that has a population of 16,000 or less and is adjacent to at least seven counties with populations of less than 15,000 is eligible to apply for and receive a grant under the Program.</content><note type="source"><p>Source Note: The provisions of this §353.3 adopted to be effective July 9, 2025, 50 TexReg 3911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c353/sc/s353.4"><num value="353.4">§353.4</num><heading>Application for Grant.</heading><content>A District seeking a grant under the Program must submit an application on a form provided by the commission and the application must contain the information required by the commission.</content><note type="source"><p>Source Note: The provisions of this §353.4 adopted to be effective July 9, 2025, 50 TexReg 3911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c353/sc/s353.5"><num value="353.5">§353.5</num><heading>Restriction on Use of the Grant.</heading><content>(a) A District receiving a grant provided under the Program may use the grant only to pay the cost of eligible projects. A District may not use the grant to pay administrative costs associated with a project.(b) When contracting or subcontracting for work on a project for which a grant is provided under the Program, a District shall engage in a bid process to select and hire a contractor or subcontractor. (c) A contract for work on a project for which a grant is provided under the Program:(1) must be awarded to a contractor or subcontractor selected from a list of approved well pluggers maintained by the Railroad Commission of Texas; and(2) may be awarded to the contractor or subcontractor whose bid or proposal provides the best value for a District, as determined by the District based on the selection criteria published by the District in the bid solicitation documents.(d) The amount of a grant provided under the Program that is not spent for the completion of a project must be returned to the commission for deposit to the credit of the Fund.</content><note type="source"><p>Source Note: The provisions of this §353.5 adopted to be effective July 9, 2025, 50 TexReg 3911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c353/sc/s353.6"><num value="353.6">§353.6</num><heading>Project Eligibility</heading><content>(a) For a project to be eligible for a grant, a District must demonstrate that the project includes a leaking water well:(1) that:(A) is located within 2,000 feet of a drinking water well, a water well for livestock or irrigation, or a sensitive wildlife area; or(B) has seasonal or annual flow to the surface, or a hydrological connection to surface water, including a waterway, intermittent stream, or springs system; and(2) of which:(A) the plug, casing, completion interval, or general integrity is known by a District to be deficient; or(B) the completion interval is sufficiently proximate to other known intervals or pressurized zones with high concentrations of salinity, chlorides, sulfides, or other hazardous or toxic components. (b) A District shall obtain written approval from a surface property owner for access to the property where the leaking water well is located.</content><note type="source"><p>Source Note: The provisions of this §353.6 adopted to be effective July 9, 2025, 50 TexReg 3911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c353/sc/s353.7"><num value="353.7">§353.7</num><heading>Prioritization Criteria.</heading><content>In addition to the eligibility criteria at §353.6, the executive director may establish additional criteria for purposes of prioritizing projects for selection. The following criteria will be used for the prioritization of projects:(1) Well characteristics, including completion information and wellbore conditions;(2) Well location relative to sensitive areas;(3) Environmental considerations;(4) Wellsite safety and access considerations;(5) Economic considerations; and(6) Other priorities determined by the commission.</content><note type="source"><p>Source Note: The provisions of this §353.7 adopted to be effective July 9, 2025, 50 TexReg 3911.</p></note></section><section identifier="/us/state/tx/tac/t30/p1/c353/sc/s353.8"><num value="353.8">§353.8</num><heading>Plugging Criteria</heading><content>(a) A District must utilize available Railroad Commission of Texas (RRC) information, data, and regulations to plan, plug, and document that a well has been permanently plugged.(b) A District must:(1) Ensure that the leaking water well is permanently plugged. The criteria for ensuring that a well is permanently plugged will be set forth in the grant terms and conditions.(2) Award the plugging contract to an RRC approved plugger, and (3) Ensure any well plugged under this chapter is plugged in compliance with the standards and criteria in 16 TAC §3.14 and RRC guidance.</content><note type="source"><p>Source Note: The provisions of this §353.8 adopted to be effective July 9, 2025, 50 TexReg 3911.</p></note></section></subchapter></chapter></part>